Federal Register proposed rules — 1995-11-08

issue-1995-11-08Federal Register proposed rules — 1995-11-08Proposed Regulation

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FR Doc. 95-27711 General Crop Insurance Regulations, Various Endorsements; Hybrid Seed Crop Insurance Regulations; and Common Crop Insurance Regulations, Various Crop Insurance Provisions
[Federal Register Volume 60, Number 216 (Wednesday, November 8, 1995)]
[Proposed Rules]
[Pages 56257-56268]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27711]

========================================================================
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. 216 / Wednesday, November 8, 1995 / 
Proposed Rules

[[Page 56257]]

DEPARTMENT OF AGRICULTURE

Federal Crop Insurance Corporation

7 CFR Parts 401, 443, and 457

RIN 0563-AB43

General Crop Insurance Regulations, Various Endorsements; Hybrid 
Seed Crop Insurance Regulations; and Common Crop Insurance Regulations, 
Various Crop Insurance Provisions

AGENCY: Federal Crop Insurance Corporation.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Federal Crop Insurance Corporation (``FCIC'') hereby 
proposes to amend the General Crop Insurance Regulations, Hybrid 
Sorghum Seed and Rice Endorsements; the Hybrid Seed Crop Insurance 
Regulations; and the Common Crop Insurance Regulations, Small Grains, 
Cotton, Extra Long Staple Cotton, Sunflower Seed and Coarse Grains Crop 
Insurance Provisions; applicable beginning with the 1996 crop year for 
spring crops with contract change dates after the effective date of 
this rule, by revising prevented planting coverage. The intended effect 
of this regulation is to expand prevented planting benefits available 
under the various policies being amended.

DATES: Written comments, data, and opinions on this proposed rule must 
be submitted by the close of business November 20, 1995 to be 
considered when the rule is to be made final.

ADDRESSES: Written comments, data, and opinions on this proposed rule 
should be sent to Diana Moslak, Regulatory and Procedural Development 
Staff, Federal Crop Insurance Corporation, USDA, Washington, D.C. 
20250. Hand or messenger delivery should be made to 2101 L Street, 
N.W., Suite 500, Washington D.C. Written comments will be available for 
public inspection and copying in the Office of the Manager, 2101 L 
Street, N.W., 5th Floor, Washington, D.C., during regular business 
hours, Monday through Friday.

FOR FURTHER INFORMATION CONTACT: For further information and a copy of 
the Cost-Benefit Analysis and Regulatory Flexibility Analysis to the 
General Crop Insurance Regulations; Hybrid Seed Crop Insurance 
Regulations; and Common Crop Insurance Regulations for prevented 
planting provisions, contact Diana Moslak, Regulatory and Procedural 
Development Staff, Federal Crop Insurance Corporation, U.S. Department 
of Agriculture, Washington, D.C. 20250. Telephone (202) 254-8314.

SUPPLEMENTARY INFORMATION: This action has been reviewed under United 
States Department of Agriculture (``USDA'') procedures established by 
Executive Order 12866 and Departmental Regulation 1512-1. This action 
does not constitute a review as to the need, currency, clarity, and 
effectiveness of these regulations under those procedures. The sunset 
review date established for small grains is July 1, 1998; coarse 
grains, cotton, Extra Long Staple cotton and Sunflower Seed is March 1, 
1999; Hybrid Seed is October 1, 1997; Hybrid Sorghum Seed is May 1, 
2000; and Rice is August 29, 1998.
    This rule has been determined to be ``economically significant'' 
for the purposes of Executive Order 12866, and therefore, has been 
reviewed by the Office of Management and Budget (``OMB'').
    A Cost-Benefit Analysis has been completed and is available to 
interested persons at the address listed above. In summary, the 
analysis finds that the expected Treasury costs of these changes are 
expected to range between $2.1 and $20.8 million. Added costs are due 
to higher reimbursements to reinsured companies and for premium 
subsidies for producers. The estimates assume the majority of farmers 
will decline the coverage for the substitute crop, opting instead for a 
reduced premium on the intended crop. Nationwide, premium rates will 
increase 6 to 7 percent for the added coverage. As examples of monetary 
impacts, this means average increases in the farmer paid premium of 20-
25 cents per acre for wheat in the Northern Plains; 30 cents for corn 
in Iowa; and 60-90 cents per acre for upland cotton. However, the 
premium rate increases will not be uniform. Instead, the highest risk 
areas (such as lowlands along rivers and similar conditions) can expect 
greater increases in premium to cover the added risk. Producers who 
farm such lands are expected to be the primary group that will retain 
this added coverage and elect to pay the additional premium. The 
changes to the prevented planting rules are expected to provide farmers 
with added assistance in extreme weather conditions, but do so in a 
manner that maintains the actuarial integrity of the Federal crop 
insurance program.

Paperwork Reduction Act of 1995

    The information collection requirements contained in these 
regulations have been submitted to OMB for their approval under section 
3507(d) of the Paperwork Reduction Act of 1995. These requirements were 
previously approved by OMB under OMB control number 0563-0003 through 
September 30, 1998. The amendments set forth in this rule do not revise 
the content or alter the frequency of reporting for any of the forms 
cleared under the above-referenced docket.
    The title of this information collection is ``Catastrophic Risk 
Protection Plan and Related Requirements including General Crop 
Insurance Regulations, Hybrid Seed Crop Insurance Regulations and 
Common Crop Insurance Regulations.'' The information to be collected 
includes: a crop insurance acreage report, an insurance application and 
continuous contract. Information collected from the acreage report and 
application is electronically transmitted to FCIC by the reinsured 
companies. Some respondents may provide additional information for the 
purpose of selecting insurance options that apply to specific crops or 
specific areas in which a crop is produced. Potential respondents to 
this information collection are growers of crops that are eligible for 
Federal Crop Insurance.
    The information requested is necessary for the insurance company 
and FCIC to provide insurance, provide reinsurance, determine 
eligibility, determine the correct parties to the agreement, determine 
and collect premiums or other monetary amounts (or fees), and pay 
benefits.
    All information is reported annually. The reporting burden for this 
collection of information is estimated to average 16.9 minutes per 
response for each of the 3.6 responses from approximately 1,750,015 
respondents. The total annual burden on the public for this 

[[Page 56258]]
information collection is 2,668,750 hours. The total annual burden has 
increased from the 1995 requirements to reflect the paperwork burden on 
the reinsured companies.
    Comments are invited on: (a) whether the proposed collection of 
information is necessary for the proper performance of the functions of 
the agency, including whether the information shall have practical 
utility; (b) the accuracy of the agency's estimate of the burden of the 
proposed collection of information; (c) ways to enhance the quality, 
utility, and clarity of the information to be collected; and (d) ways 
to minimize the burden of the collection of information on respondents, 
including through the use of automated collection techniques or other 
forms of information technology.
    Comments should be submitted to the Desk Officer for Agriculture, 
Office of Information and Regulatory Affairs, Office of Management and 
Budget (OMB), Washington, D.C 20503 and to Bonnie Hart, Information 
Management Branch, Consolidated Farm Service Agency, U.S. Department of 
Agriculture, Washington, D.C. 20250. Copies of the information 
collection may be obtained from Bonnie Hart at the above address. 
Telephone (202) 690-2857.
    It has been determined under section 6(a) of Executive Order 12612, 
Federalism, that this rule does not have sufficient federalism 
implications to warrant the preparation of a Federalism Assessment. The 
provisions contained in this rule will not have a substantial direct 
effect on states or their political subdivisions, or on the 
distribution of power and responsibilities among the various levels of 
government.
    The amount of work required of the insurance companies and CFSA 
offices delivering the policies and the procedures therein may increase 
significantly from the amount of work currently required to deliver 
previous policies to which this regulation applies. Therefore, this 
action has been reviewed under the provisions of the Regulatory 
Flexibility Act (5 U.S.C. Sec. 605) and a Regulatory Flexibility 
Analysis is available to interested persons at the address listed 
above.
    This program is listed in the Catalog of Federal Domestic 
Assistance under No. 10.450.
    This program is not subject to the provisions of Executive Order 
12372 which require intergovernmental consultation with state and local 
officials. See the Notice related to 7 CFR part 3015, subpart V, 
published at 48 FR 29115, June 24, 1983.
    The Office of the General Counsel has determined that these 
regulations meet the applicable standards provided in subsections 2(a) 
and 2(b)(2) of Executive Order 12778. The provisions of this rule will 
preempt state and local laws to the extent such state and local laws 
are inconsistent herewith. The administrative appeal provisions 
promulgated by the National Appeals Division under Pub. L. No. 103-354 
must be exhausted before judicial action may be brought.
    This action is not expected to have any significant impact on the 
quality of the human environment, health, and safety. Therefore, 
neither an Environmental Assessment nor an Environmental Impact 
Statement is needed.

Background

    Current regulations do not allow an insured producer to obtain a 
prevented planting guarantee for one crop and plant a substitute crop 
intended for harvest in the same crop year on the same land. By this 
rule, an insured who purchases limited or additional coverage beginning 
with the 1996 crop year for spring crops with contract change dates 
after the effective date of this rule, will be eligible to: (1) receive 
a prevented planting guarantee equal to 25 percent of the guarantee for 
timely planted acreage (20 percent for hybrid seed and 17.5 percent for 
cotton, ELS cotton, and rice) when acreage that is prevented from being 
planted is planted to a substitute crop and, as applicable, a 0/92 or 
50/92 program benefit; (2) exclude eligibility for prevented planting 
coverage when a substitute crop is planted in return for a reduction in 
the premium; and (3) receive prevented planting coverage on double 
cropped acreage (except for ELS cotton) if the producer can provide 
proof that planting of a second crop (double crop) following the 
harvest of an initial crop in the same crop year is a farming practice 
normally followed by that producer. By this rule, the prevented 
planting provisions also: (1) allow all insured producers to receive a 
0/92 or 50/92 program benefit, as applicable, and a crop insurance 
prevented planting guarantee equal to 50 percent of the guarantee for 
timely planted acreage (40 percent for hybrid seed and 35 percent for 
cotton, ELS cotton, and rice) when acreage that is prevented from being 
planted is not planted to a substitute crop; (2) eliminate the 
provisions that require acreage eligible for a prevented planting 
guarantee to be prorated to all units that could have been planted in 
the crop year; (3) change the date that notice of loss is required, 
from 3 days after the final planting date or the date the producer 
discovers that planting will not be possible within the late planting 
period, to the acreage reporting date; and (4) allow prevented planted 
acreage planted with a conserving use cover crop to be hayed and grazed 
without limitation.
    This rule defines prevented planting as ``Inability to plant the 
insured crop with proper equipment by the final planting date 
designated in the Special Provisions for the insured crop in the county 
or the end of the late planting period. You must have been unable to 
plant the insured crop due to an insured cause of loss that has 
prevented most producers in the surrounding area from planting.'' This 
definition was designed to accommodate extremely varied production 
areas and farming practices; including those in which growers do not 
plant after the final planting date and those in which growers often do 
plant a crop within the late planting period. Some farming areas have 
relatively short growing seasons which make the prospect of a 
successful crop doubtful if planted much beyond the final planting 
date. Other areas have much longer growing seasons and often allow a 
successful crop to be grown even if planted well after the final 
planting date. In both long and short growing areas some farming 
practices, such as the production of silage, allow a grower to plant 
after the final planting date and still produce an acceptable crop. 
FCIC is specifically requesting comments and recommendations regarding 
this definition.

List of Subjects

7 CFR Part 401

    Crop insurance, Hybrid sorghum seed, Rice.

7 CFR Part 443

    Crop insurance, hybrid seed.

7 CFR Part 457

    Crop insurance, small grains, cotton, ELS cotton, sunflower seed 
and coarse grains.

Proposed Rule

    In this document, pursuant to the authority contained in the 
Federal Crop Insurance Act, as amended (7 U.S.C. 1501 et seq.), the 
Federal Crop Insurance Corporation hereby proposes to amend the General 
Crop Insurance Regulations (7 CFR part 401) by amending the Hybrid 
Sorghum Seed (Sec. 401.109) and Rice (Sec. 401.120) Endorsements; the 
Hybrid Seed Crop Insurance Policy (7 CFR 443.7(d)); and the Common Crop 
Insurance Regulations (7 CFR part 457) by amending the Small Grains 
(Sec. 457.101), Cotton (Sec. 457.104), Extra Long Staple 

[[Page 56259]]
Cotton (Sec. 457.105), Sunflower Seed (Sec. 457.108), and Coarse Grains 
(Sec. 457.113) Crop Insurance Provisions; applicable beginning with the 
1996 crop year for spring crops with contract change dates after the 
effective date of the final rule. Accordingly, 7 CFR parts 401, 443, 
and 457 are proposed to be amended as follows:

PART 401--[AMENDED]

    1. The authority citation for 7 CFR part 401 continues to read as 
follows:

    Authority: 7 U.S.C. 1506(1).

    2. Section 401.109 is amended by revising paragraphs 12(a)(3), 
12(b), and 12(d) of the Hybrid Sorghum Seed Endorsement to read as 
follows:

Sec. 401.109  Hybrid sorghum seed endorsement.

* * * * *

12. Late Planting and Prevented Planting

    (a) * * *
    (3) For prevented planting acreage, multiply the per acre amount 
of insurance for timely planted acreage by:
    (i) Fifty percent (0.50) and multiply the result by the 50 acres 
you were prevented from planting, if the acreage is eligible for 
prevented planting coverage, and if the acreage is left idle for the 
crop year, or if a cover crop is planted not for harvest. Prevented 
planting compensation hereunder will not be denied because the cover 
crop is hayed or grazed; or
    (ii) Twenty-five percent (0.25) and multiply the result by the 
50 acres you were prevented from planting, if the acreage is 
eligible for prevented planting coverage, and if you elect to plant 
a substitute crop for harvest after the intended crop was prevented 
from being planted. (This subparagraph (ii) is not applicable, and 
prevented planting coverage is not available hereunder, if you 
elected the Catastrophic Risk Protection Endorsement or you elected 
to exclude prevented planting coverage when a substitute crop is 
planted (see subparagraph 12(d)(1)(iii))).
    The total of the three calculations will be the amount of 
insurance for the unit. Your premium will be based on the result of 
multiplying the per acre amount of insurance for timely planted 
acreage by the 150 insured crop acres in the unit.
    (b) If you were prevented from planting, you must provide 
written notice to us not later than the acreage reporting date.
* * * * *
    (d) Prevented Planting (Including Planting After the Late 
Planting Period).
    (1) If you were prevented from planting the insured crop (see 
subsection 13(o)), you may elect:
    (i) To plant the insured crop during the late planting period. 
The amount of insurance for such acreage will be determined in 
accordance with paragraph 12(c)(1);
    (ii) Not to plant this acreage to any crop except a cover crop 
not for harvest. You may also elect to plant the insured crop after 
the late planting period. In either case, the amount of insurance 
for such acreage will be fifty percent (50%) of the amount of 
insurance for timely planted acres. For example, if your amount of 
insurance for timely planted acreage is 200 dollars per acre, your 
prevented planting amount of insurance would be 100 dollars per acre 
(200 dollars multiplied by 0.50). If you elect to plant the insured 
crop after the late planting period, production to count for such 
acreage will be determined in accordance with subsections 8b through 
e; or
    (iii) Not to plant the intended crop but plant a substitute crop 
for harvest, in which case the amount of insurance for such acreage 
will be twenty-five percent (25%) of the amount of insurance for 
timely planted acres. If you elected the Catastrophic Risk 
Protection Endorsement or excluded this coverage, and plant a 
substitute crop, no prevented planting coverage will be provided. 
For example, if your amount of insurance for timely planted acreage 
is 200 dollars per acre, your prevented planting amount of insurance 
would be 50 dollars per acre (200 dollars multiplied by 0.25). You 
may elect to exclude prevented planting coverage when a substitute 
crop is planted for harvest and receive a reduction in the 
applicable premium rate. If you wish to exclude this coverage, you 
must so indicate on your application or on a form approved by us. 
Your election to exclude this coverage will remain in effect from 
year to year unless you notify us in writing on our form by the 
applicable sales closing date for the crop year for which you wish 
to include this coverage. All acreage of the crop insured under this 
policy will be subject to this exclusion.
    (2) Proof that you had the inputs available to plant and produce 
the intended crop with the expectation of at least producing the 
yield upon which your amount of insurance is based may be required.
    (3) In addition to the provisions of section 7 (Insurance 
Period) of the General Crop Insurance Policy (Sec. 401.8), the 
insurance period for prevented planting coverage begins:
    (i) On the sales closing date contained in the Special 
Provisions for the insured crop in the county for the crop year the 
application for insurance is accepted; or
    (ii) For any subsequent crop year, on the sales closing date for 
the insured crop in the county for the previous crop year, provided 
continuous coverage has been in effect since that date. For example: 
If you make application and purchase a hybrid sorghum seed crop 
insurance policy for the 1996 crop year, prevented planting coverage 
will begin on the 1996 sales closing date for the insured crop in 
the county. If the hybrid sorghum seed coverage remains in effect 
for the 1997 crop year (is not terminated or cancelled during or 
after the 1996 crop year, except the policy may have been cancelled 
to transfer the policy to a different insurance provider, if there 
is no lapse in coverage), prevented planting coverage for the 1997 
crop year began on the 1996 sales closing date.
    (4) The acreage to which prevented planting coverage applies 
will not exceed the total eligible acreage on all Consolidated Farm 
Service Agency (CFSA) Farm Serial Numbers in which you have a share, 
adjusted for any reconstitution that may have occurred before the 
sales closing date. Eligible acreage for each CFSA Farm Serial 
Number is determined as follows:
    (i) If you participate in any program administered by the United 
States Department of Agriculture that limits the number of acres 
that may be planted for the crop year, the acreage eligible for 
prevented planting coverage will not exceed the total acreage 
permitted to be planted to the insured crop.
    (ii) If you do not participate in any program administered by 
the United States Department of Agriculture that limits the number 
of acres that may be planted, and unless we agree in writing before 
the sales closing date, eligible acreage will not exceed the greater 
of:
    (A) The CFSA base acreage for the insured crop, including acres 
that could be flexed from another crop, if applicable;
    (B) The number of acres planted to the insured crop during the 
previous crop year; or
    (C) One hundred percent (100%) of the simple average of the 
number of acres planted to the insured crop for previous years for 
which you have continuous records of planted acreage.
    (iii) Acreage intended to be planted under an irrigated practice 
will be limited to the number of acres for which you had adequate 
irrigation facilities prior to the insured cause of loss which 
prevented you from planting.
    (iv) Prevented planting coverage will not be provided for any 
acreage:
    (A) That does not constitute at least 20 acres or 20 percent 
(20%) of the acreage in the unit, whichever is less (Acreage that is 
less than 20 acres or 20 percent of the acreage in the unit will be 
presumed to have been intended to be planted to the insured crop 
planted in the unit, unless you can show that you had the inputs 
available before the final planting date to plant and produce 
another insured crop on the acreage);
    (B) For which the actuarial table does not designate a premium 
rate unless a written agreement designates such premium rate;
    (C) Used for conservation purposes or intended to be left 
unplanted under any program administered by the United States 
Department of Agriculture;
    (D) On which another crop is prevented from planting, if any 
crop has already received a prevented planting indemnity, guarantee 
or amount of insurance on the same acreage in the same crop year, 
unless you provide adequate records of acreage and production 
showing that the acreage has a history of double-cropping in each of 
the last four years;
    (E) On which another crop is prevented from planting, if any 
crop was planted and failed, or was planted and harvested (including 
hayed or grazed) on the same acreage in the same crop year, unless 
you provide adequate records of acreage and production showing that 
the acreage has a history of double-cropping in each of the last 
four years;
    (F) When coverage is provided under the Catastrophic Risk 
Endorsement if you plant another crop for harvest on any acreage you 

[[Page 56260]]
were prevented from planting in the same crop year, even if you have a 
history of double cropping. If you have a Catastrophic Risk 
Endorsement and receive a prevented planting indemnity, guarantee, 
or amount of insurance for a crop and are prevented from planting 
another crop on the same acreage, you may only receive the prevented 
planting indemnity, guarantee, or amount of insurance for the crop 
on which the prevented planting indemnity, guarantee, or amount of 
insurance is received;
    (G) For which planting history or conservation plans indicate 
that the acreage would have remained fallow for crop rotation 
purposes.
    (v) For the purpose of determining eligible acreage for 
prevented planting coverage, acreage for all units will be combined 
and be reduced by the number of acres of the insured crop timely 
planted and late planted. For example, assume you have 100 acres 
eligible for prevented planting coverage in which you have a 100 
percent (100%) share. The acreage is located in a single CFSA Farm 
Serial Number which you insure as two separate optional units 
consisting of 50 acres each. If you planted 60 acres of the insured 
crop on one optional unit and 40 acres of the insured crop on the 
second optional unit, your prevented planting eligible acreage would 
be reduced to zero (i.e., 100 acres eligible for prevented planting 
coverage minus 100 acres planted equals zero).
    (5) In accordance with the provisions of section 3 (Report of 
Acreage, Share, and Practice (Acreage Report) of the General Crop 
Insurance Policy (Sec. 401.8), you must report by unit any insurable 
acreage that you were prevented from planting. This report must be 
submitted on or before the acreage reporting date. The total amount 
of prevented planting and planted acres cannot exceed the maximum 
number of acres eligible for prevented planting coverage. Any 
acreage you report in excess of the number of acres eligible for 
prevented planting coverage, or that exceeds the number of eligible 
acres physically located in a unit, will be deleted from your 
acreage report.
    (6) If the amount of premium you are required to pay (gross 
premium less our subsidy) for the prevented planting acreage exceeds 
the prevented planting liability on a unit, prevented planting 
coverage will not be provided for that unit (no premium will be due 
and no indemnity will be paid for such acreage).

Sec. 401.109  [Amended]

    3. Section 401.109 is amended by revising paragraph 13(o) to read 
as follows:
* * * * *
13. Meaning of Terms

* * * * *
    (o) Prevented planting--Inability to plant the insured crop with 
proper equipment by the final planting date designated in the 
Special Provisions for the insured crop in the county or the end of 
the late planting period. You must have been unable to plant the 
insured crop due to an insured cause of loss that has prevented most 
producers in the surrounding area from planting.
* * * * *
    4. Section 401.120 is amended by revising paragraphs 10(a)(3), 
10(b), and 10(d) of the Rice Endorsement to read as follows:

Sec. 401.120  Rice endorsement.

* * * * *

10. Late Planting and Prevented Planting

    (a) * * *
    (3) For prevented planting acreage, multiply the per acre 
production guarantee for timely planted acreage by:
    (i) Thirty-five percent (0.35) and multiply the result by the 50 
acres you were prevented from planting, if the acreage is eligible 
for prevented planting coverage, and if the acreage is left idle for 
the crop year, or if a cover crop is planted not for harvest. 
Prevented planting compensation hereunder will not be denied because 
the cover crop is hayed or grazed; or
    (ii) Seventeen and five tenths percent (0.175) and multiply the 
result by the 50 acres you were prevented from planting, if the 
acreage is eligible for prevented planting coverage, and if you 
elect to plant a substitute crop for harvest after the intended crop 
was prevented from being planted. (This subparagraph (ii) is not 
applicable, and prevented planting coverage is not available 
hereunder, if you elected the Catastrophic Risk Protection 
Endorsement or you elected to exclude prevented planting coverage 
when a substitute crop is planted (see subparagraph 10(d)(1)(iii))).
    The total of the three calculations will be the production 
guarantee for the unit. Your premium will be based on the result of 
multiplying the per acre production guarantee for timely planted 
acreage by the 150 acres in the unit.
    (b) If you were prevented from planting, you must provide 
written notice to us not later than the acreage reporting date.
* * * * *
    (d) Prevented Planting (Including Planting After the Late 
Planting Period).
    (1) If you were prevented from planting rice (see subsection 
11(h)), you may elect:
    (i) To plant rice during the late planting period. The 
production guarantee for such acreage will be determined in 
accordance with paragraph 10(c)(1);
    (ii) Not to plant this acreage to any crop except a cover crop 
not for harvest. You may also elect to plant the insured crop after 
the late planting period. In either case, the production guarantee 
for such acreage will be thirty-five percent (35%) of the production 
guarantee for timely planted acres. For example, if your production 
guarantee for timely planted acreage is 2000 pounds per acre, your 
prevented planting production guarantee would be 700 pounds per acre 
(2000 pounds multiplied by 0.35). If you elect to plant the insured 
crop after the late planting period, production to count for such 
acreage will be determined in accordance with subsections 7 b and c; 
or
    (iii) Not to plant the intended crop but plant a substitute crop 
for harvest, in which case the production guarantee for such acreage 
will be seventeen and five tenths percent (17.5%) of the production 
guarantee for timely planted acres. If you elected the Catastrophic 
Risk Protection Endorsement or excluded this coverage and plant a 
substitute crop, no prevented planting coverage will be provided. 
For example, if your production guarantee for timely planted acreage 
is 2000 pounds per acre, your prevented planting production 
guarantee would be 350 pounds per acre (2000 pounds multiplied by 
0.175). You may elect to exclude prevented planting coverage when a 
substitute crop is planted for harvest and receive a reduction in 
the applicable premium rate. If you wish to exclude this coverage, 
you must so indicate on your application or on a form approved by 
us. Your election to exclude this coverage will remain in effect 
from year to year unless you notify us in writing on our form by the 
applicable sales closing date for the crop year for which you wish 
to include this coverage. All acreage of the crop insured under this 
policy will be subject to this exclusion.
    (2) Proof that you had the inputs available to plant and produce 
the intended crop with the expectation of at least producing the 
production guarantee may be required.
    (3) In addition to the provisions of section 7 (Insurance 
Period) of the General Crop Insurance Policy (Sec. 401.8), the 
insurance period for prevented planting coverage begins:
    (i) On the sales closing date contained in the Special 
Provisions for rice in the county for the crop year the application 
for insurance is accepted; or
    (ii) For any subsequent crop year, on the sales closing date for 
the insured crop in the county for the previous crop year, provided 
continuous coverage has been in effect since that date. For example: 
If you make application and purchase a rice crop insurance policy 
for the 1996 crop year, prevented planting coverage will begin on 
the 1996 sales closing date for the insured crop in the county. If 
the rice coverage remains in effect for the 1997 crop year (is not 
terminated or cancelled during or after the 1996 crop year, except 
the policy may have been cancelled to transfer the policy to a 
different insurance provider, if there is no lapse in coverage), 
prevented planting coverage for the 1997 crop year began on the 1996 
sales closing date.
    (4) The acreage to which prevented planting coverage applies 
will not exceed the total eligible acreage on all Consolidated Farm 
Service Agency (CFSA) Farm Serial Numbers in which you have a share, 
adjusted for any reconstitution that may have occurred before the 
sales closing date. Eligible acreage for each CFSA Farm Serial 
Number is determined as follows:
    (i) If you participate in any program administered by the United 
States Department of Agriculture that limits the number of acres 
that may be planted for the crop year, the acreage eligible for 
prevented planting coverage will not exceed the total acreage 
permitted to be planted to the insured crop.
    (ii) If you do not participate in any program administered by 
the United States Department of Agriculture that limits the number 
of acres that may be planted, and unless we agree in writing before 
the sales closing date, eligible acreage will not exceed the greater 
of:

[[Page 56261]]

    (A) The CFSA base acreage for the insured crop, including acres 
that could be flexed from another crop, if applicable;
    (B) The number of acres planted to rice during the previous crop 
year; or
    (C) One hundred percent (100%) of the simple average of the 
number of acres planted to rice during the crop years that you 
certified to determine your yield.
    (iii) Prevented planting coverage will not be provided for any 
acreage:
    (A) That does not constitute at least 20 acres or 20 percent 
(20%) of the acreage in the unit, whichever is less (Acreage that is 
less than 20 acres or 20 percent of the acreage in the unit will be 
presumed to have been intended to be planted to the insured crop 
planted in the unit, unless you can show that you had the inputs 
available before the final planting date to plant and produce 
another insured crop on the acreage);
    (B) For which the actuarial table does not designate a premium 
rate unless a written agreement designates such premium rate;
    (C) Used for conservation purposes or intended to be left 
unplanted under any program administered by the United States 
Department of Agriculture;
    (D) On which another crop is prevented from planting, if any 
crop has already received a prevented planting indemnity, guarantee 
or amount of insurance on the same acreage in the same crop year, 
unless you provide adequate records of acreage and production 
showing that the acreage has a history of double-cropping in each of 
the last four years;
    (E) On which another crop is prevented from planting, if any 
crop was planted and failed, or was planted and harvested (including 
hayed or grazed) on the same acreage in the same crop year, unless 
you provide adequate records of acreage and production showing that 
the acreage has a history of double-cropping in each of the last 
four years;
    (F) When coverage is provided under the Catastrophic Risk 
Endorsement if you plant another crop for harvest on any acreage you 
were prevented from planting in the same crop year, even if you have 
a history of double cropping. If you have a Catastrophic Risk 
Endorsement and receive a prevented planting indemnity, guarantee, 
or amount of insurance for a crop and are prevented from planting 
another crop on the same acreage, you may only receive the prevented 
planting indemnity, guarantee, or amount of insurance for the crop 
on which the prevented planting indemnity, guarantee, or amount of 
insurance is received.
    (G) For which planting history or conservation plans indicate 
that the acreage would have remained fallow for crop rotation 
purposes.
    (iv) For the purpose of determining eligible acreage for 
prevented planting coverage, acreage for all units will be combined 
and be reduced by the number of rice acres timely planted and late 
planted. For example, assume you have 100 acres eligible for 
prevented planting coverage in which you have a 100 percent (100%) 
share. The acreage is located in a single CFSA Farm Serial Number 
which you insure as two separate optional units consisting of 50 
acres each. If you planted 60 acres of rice on one optional unit and 
40 acres of rice on the second optional unit, your prevented 
planting eligible acreage would be reduced to zero (i.e., 100 acres 
eligible for prevented planting coverage minus 100 acres planted 
equals zero).
    (5) In accordance with the provisions of section 3 (Report of 
Acreage, Share, and Practice (Acreage Report) of the General Crop 
Insurance Policy (Sec. 401.8), you must report by unit any insurable 
acreage that you were prevented from planting. This report must be 
submitted on or before the acreage reporting date. The total amount 
of prevented planting and planted acres cannot exceed the maximum 
number of acres eligible for prevented planting coverage. Any 
acreage you report in excess of the number of acres eligible for 
prevented planting coverage, or that exceeds the number of eligible 
acres physically located in a unit, will be deleted from your 
acreage report.
    (6) If the amount of premium you are required to pay (gross 
premium less our subsidy) for the prevented planting acreage exceeds 
the prevented planting liability on a unit, prevented planting 
coverage will not be provided for that unit (no premium will be due 
and no indemnity will be paid for such acreage).

    5. Section 401.120 is amended by revising paragraph 11(h) to read 
as follows:
* * * * *

11. Meaning of Terms

* * * * *
    (h) Prevented planting--Inability to plant the insured crop with 
proper equipment by the final planting date designated in the 
Special Provisions for the insured crop in the county or the end of 
the late planting period. You must have been unable to plant the 
insured crop due to an insured cause of loss that has prevented most 
producers in the surrounding area from planting.
* * * * *

PART 443--[AMENDED]

    6. The authority citation for 7 CFR part 443 continues to read as 
follows:

    Authority: 7 U.S.C. 1506(1).

    7. Section 443.7(d) is amended by revising paragraphs 17(a)(3), 
17(b), and 17(d) of the Hybrid Seed Crop Insurance Policy to read as 
follows:

Sec. 443.7  The application and policy.

* * * * *
    (d) * * *

17. Late Planting and Prevented Planting

    (a) * * *
    (3) For prevented planting acreage, multiply the per acre amount 
of insurance for timely planted acreage by:
    (i) Forty percent (0.40) and multiply the result by the 50 acres 
you were prevented from planting, if the acreage is eligible for 
prevented planting coverage, and if the acreage is left idle for the 
crop year, or if a cover crop is planted not for harvest. Prevented 
planting compensation hereunder will not be denied because the cover 
crop is hayed or grazed; or
    (ii) Twenty percent (0.20) and multiply the result by the 50 
acres you were prevented from planting, if the acreage is eligible 
for prevented planting coverage, and if you elect to plant a 
substitute crop for harvest after the intended crop was prevented 
from being planted. (This subparagraph (ii) is not applicable, and 
prevented planting coverage is not available hereunder, if you 
elected the Catastrophic Risk Protection Endorsement or you elected 
to exclude prevented planting coverage when a substitute crop is 
planted (see subparagraph 17(d)(1)(iii))).
    The total of the three calculations will be the amount of 
insurance for the unit. Your premium will be based on the result of 
multiplying the per acre amount of insurance for timely planted 
acreage by the 150 insured crop acres in the unit.
    (b) If you were prevented from planting, you must provide 
written notice to us not later than the acreage reporting date.
* * * * *
    (d) Prevented Planting (Including Planting After the Late 
Planting Period)
    (1) If you were prevented from planting the insured crop (see 
subsection 18(w)), you may elect:
    (i) To plant the insured crop during the late planting period. 
The amount of insurance for such acreage will be determined in 
accordance with paragraph 17(c)(1);
    (ii) Not to plant this acreage to any crop except a cover crop 
not for harvest. You may also elect to plant the insured crop after 
the late planting period. In either case, the amount of insurance 
for such acreage will be forty percent (40%) of the amount of 
insurance for timely planted acres. For example, if your amount of 
insurance for timely planted acreage is 200 dollars per acre, your 
prevented planting amount of insurance would be 80 dollars per acre 
(200 dollars multiplied by 0.40). If you elect to plant the insured 
crop after the late planting period, production to count for such 
acreage will be determined in accordance with subsection 9e.; or
    (iii) Not to plant the intended crop but plant a substitute crop 
for harvest, in which case the amount of insurance for such acreage 
will be twenty percent (20%) of the amount of insurance for timely 
planted acres. If you elected the Catastrophic Risk Protection 
Endorsement or excluded this coverage, and plant a substitute crop, 
no prevented planting coverage will be provided. For example, if 
your amount of insurance for timely planted acreage is 200 dollars 
per acre, your prevented planting amount of insurance would be 40 
dollars per acre (200 dollars multiplied by 0.20). You may elect to 
exclude prevented planting coverage when a substitute crop is 
planted for harvest and receive a reduction in the applicable 
premium rate. If you wish to exclude this coverage, you must so 
indicate on your application or on a form approved by us. Your 
election to exclude this coverage will remain in effect from year to 
year unless you notify us in writing on our form by the applicable 
sales closing date for the crop year for which you wish to include 
this coverage. 

[[Page 56262]]
All acreage of the crop insured under this policy will be subject to 
this exclusion.
    (2) Proof that you had the inputs available to plant and produce 
the intended crop with the expectation of at least producing the 
yield upon which your amount of insurance is based may be required.
    (3) In addition to the provisions of section 7 (Insurance 
Period), the insurance period for prevented planting coverage 
begins:
    (i) On the sales closing date contained in the Special 
Provisions for the insured crop in the county for the crop year the 
application for insurance is accepted; or
    (ii) For any subsequent crop year, on the sales closing date for 
the insured crop in the county for the previous crop year, provided 
continuous coverage has been in effect since that date. For example: 
If you make application and purchase a hybrid seed crop insurance 
policy for the 1996 crop year, prevented planting coverage will 
begin on the 1996 sales closing date for the insured crop in the 
county. If the hybrid seed coverage remains in effect for the 1997 
crop year (is not terminated or cancelled during or after the 1996 
crop year, except the policy may have been cancelled to transfer the 
policy to a different insurance provider, if there is no lapse in 
coverage), prevented planting coverage for the 1997 crop year began 
on the 1996 sales closing date.
    (4) The acreage to which prevented planting coverage applies 
will not exceed the total eligible acreage on all Consolidated Farm 
Service Agency (CFSA) Farm Serial Numbers in which you have a share, 
adjusted for any reconstitution that may have occurred before the 
sales closing date. Eligible acreage for each CFSA Farm Serial 
Number is determined as follows:
    (i) If you participate in any program administered by the United 
States Department of Agriculture that limits the number of acres 
that may be planted for the crop year, the acreage eligible for 
prevented planting coverage will not exceed the total acreage 
permitted to be planted to the insured crop.
    (ii) If you do not participate in any program administered by 
the United States Department of Agriculture that limits the number 
of acres that may be planted, and unless we agree in writing before 
the sales closing date, eligible acreage will not exceed the greater 
of:
    (A) The CFSA base acreage for the insured crop, including acres 
that could be flexed from another crop, if applicable;
    (B) The number of acres planted to the insured crop during the 
previous crop year; or
    (C) One hundred percent (100%) of the simple average of the 
number of acres planted to the insured crop for previous years for 
which you have continuous records of planted acreage.
    (iii) Acreage intended to be planted under an irrigated practice 
will be limited to the number of acres for which you had adequate 
irrigation facilities prior to the insured cause of loss which 
prevented you from planting.
    (iv) Prevented planting coverage will not be provided for any 
acreage:
    (A) That does not constitute at least 20 acres or 20 percent 
(20%) of the acreage in the unit, whichever is less (acreage that is 
less than 20 acres or 20 percent (20%) of the acreage in the unit 
will be presumed to have been intended to be planted to the insured 
crop planted on the adjoining acreage, unless you can show that you 
had the inputs available to plant and produce another insured crop 
on the acreage before the final planting date);
    (B) For which the actuarial table does not designate a premium 
rate unless a written agreement designates such premium rate;
    (C) Used for conservation purposes or intended to be left 
unplanted under any program administered by the United States 
Department of Agriculture;
    (D) On which another crop is prevented from being planted, if 
you have already received a prevented planting indemnity, guarantee 
or amount of insurance for such acreage in the same crop year, 
unless you provide adequate records of acreage and production 
showing that the acreage has a history of double-cropping in each of 
the last four crop years;
    (E) On which the insured crop is prevented from being planted, 
if any other crop is planted and fails, or is planted and harvested, 
hayed or grazed on such acreage in the same crop year, (other than a 
cover crop as specified in paragraph (a)(3)(i) of this section, or a 
substitute crop allowed in paragraph (a)(3)(ii) of this section), 
unless you provide adequate records of acreage and production 
showing that the acreage has a history of double-cropping in each of 
the last four years;
    (F) Insured under the Catastrophic Risk Protection Endorsement 
if you:
    (1) Have already received a prevented planting indemnity, 
guarantee or amount of insurance for such acreage in the same crop 
year, even if the acreage has a history of double-cropping; or
    (2) Plant any other crop on the acreage for harvest, haying or 
grazing in the same crop year (other than a cover crop as specified 
in paragraph (a)(3)(i) of this section), even if such crop fails;
    (G) For which planting history or conservation plans indicate 
that the acreage would have remained fallow for crop rotation 
purposes.
    (v) For the purpose of determining eligible acreage for 
prevented planting coverage, acreage for all units will be combined 
and be reduced by the number of acres of the insured crop timely 
planted and late planted. For example, assume you have 100 acres 
eligible for prevented planting coverage in which you have a 100 
percent (100%) share. The acreage is located in a single CFSA Farm 
Serial Number which you insure as two separate optional units 
consisting of 50 acres each. If you planted 60 acres of the insured 
crop on one optional unit and 40 acres of the insured crop on the 
second optional unit, your prevented planting eligible acreage would 
be reduced to zero (i.e., 100 acres eligible for prevented planting 
coverage minus 100 acres planted equals zero).
    (5) In accordance with the provisions of section 3 (Report of 
Acreage, Share, Type and Practice), you must report by unit any 
insurable acreage that you were prevented from planting. This report 
must be submitted on or before the acreage reporting date. The total 
amount of prevented planting and planted acres cannot exceed the 
maximum number of acres eligible for prevented planting coverage. 
Any acreage you report in excess of the number of acres eligible for 
prevented planting coverage, or that exceeds the number of eligible 
acres physically located in a unit, will be deleted from your 
acreage report.
    (6) If the amount of premium you are required to pay (gross 
premium less our subsidy) for the prevented planting acreage exceeds 
the prevented planting liability on a unit, prevented planting 
coverage will not be provided for that unit (no premium will be due 
and no indemnity will be paid for such acreage).

    8. Section 443.7(d) is amended by revising paragraph 18(w) to read 
as follows:
* * * * *

18. Meaning of Terms

* * * * *
    (w) Prevented planting--Inability to plant the insured crop with 
proper equipment by the final planting date designated in the 
Special Provisions for the insured crop in the county or the end of 
the late planting period. You must have been unable to plant the 
insured crop due to an insured cause of loss that has prevented most 
producers in the surrounding area from planting.
* * * * *

PART 457--[AMENDED]

    9. The authority citation for 7 CFR part 457 continues to read as 
follows:

    Authority: 7 U.S.C. 1506(1).

    10. Section 457.101 is amended by revising paragraph 1(p) of the 
Small Grains Crop Provisions to read as follows:

Sec. 457.101  Small Grains Crop Insurance.

* * * * *

1. Definitions

* * * * *
    (p) Prevented planting--Inability to plant the insured crop with 
proper equipment by the latest final planting date designated in the 
Special Provisions for the insured crop in the county or the end of 
the late planting period. You must have been unable to plant the 
insured crop due to an insured cause of loss that has prevented most 
producers in the surrounding area from planting.
* * * * *
    11. Section 457.101 is amended by revising paragraphs 12(a)(3), 
12(b), and 12(d) to read as follows:
* * * * *

12. Late Planting and Prevented Planting

    (a) * * *
    (3) For prevented planting acreage, multiply the per acre 
production guarantee for timely planted acreage by:
    (i) Fifty percent (0.50) and multiply the result by the 50 acres 
you were prevented 

[[Page 56263]]
from planting, if the acreage is eligible for prevented planting 
coverage, and if the acreage is left idle for the crop year, or if a 
cover crop is planted not for harvest. Prevented planting 
compensation hereunder will not be denied because the cover crop is 
hayed or grazed; or
    (ii) Twenty-five percent (0.25) and multiply the result by the 
50 acres you were prevented from planting, if the acreage is 
eligible for prevented planting coverage, and if you elect to plant 
a substitute crop for harvest after the intended crop was prevented 
from being planted. (This subparagraph (ii) is not applicable, and 
prevented planting coverage is not available hereunder, if you 
elected the Catastrophic Risk Protection Endorsement or you elected 
to exclude prevented planting coverage when a substitute crop is 
planted (see subparagraph 12(d)(1)(iii))).
    The total of the three calculations will be the production 
guarantee for the unit. Your premium will be based on the result of 
multiplying the per acre production guarantee for timely planted 
acreage by the 150 acres in the unit.
    (b) If you were prevented from planting, you must provide 
written notice to us not later than the acreage reporting date.
* * * * *
    (d) Prevented Planting (Including Planting After the Late 
Planting Period).
    (1) If you were prevented from planting the insured crop (see 
subsection 1(p)), you may elect:
    (i) To plant the insured crop during the late planting period. 
The production guarantee for such acreage will be determined in 
accordance with paragraph 12(c)(1);
    (ii) Not to plant this acreage to any crop except a cover crop 
not for harvest. You may also elect to plant the insured crop after 
the late planting period. In either case, the production guarantee 
for such acreage will be 50 percent (50%) of the production 
guarantee for timely planted acres. In counties for which the 
Special Provisions designate a spring final planting date, the 
prevented planting guarantee will be based on your approved yield 
for spring-planted acreage of the insured crop. For example, if your 
production guarantee for timely planted acreage is 30 bushels per 
acre, your prevented planting production guarantee would be 15 
bushels per acre (30 bushels multiplied by 0.50). If you elect to 
plant the insured crop after the late planting period, production to 
count for such acreage will be determined in accordance with 
subsections 11(c) through (e); or
    (iii) Not to plant the intended crop but plant a substitute crop 
for harvest, in which case the production guarantee for such acreage 
will be twenty-five percent (25%) of the production guarantee for 
timely planted acres. If you elected the Catastrophic Risk 
Protection Endorsement or excluded this coverage, and plant a 
substitute crop, no prevented planting coverage will be provided. 
For example, if your production guarantee for timely planted acreage 
is 30 bushels per acre, your prevented planting production guarantee 
would be 7.5 bushels per acre (30 bushels multiplied by 0.25). You 
may elect to exclude prevented planting coverage when a substitute 
crop is planted for harvest and receive a reduction in the 
applicable premium rate. If you wish to exclude this coverage, you 
must so indicate on your application or on a form approved by us. 
Your election to exclude this coverage will remain in effect from 
year to year unless you notify us in writing on our form by the 
applicable sales closing date for the crop year for which you wish 
to include this coverage. All acreage of the crop insured under this 
policy will be subject to this exclusion.
    (2) Proof that you had the inputs available to plant and produce 
the intended crop with the expectation of at least producing the 
production guarantee may be required.
    (3) In addition to the provisions of section 11 (Insurance 
Period) of the Common Crop Insurance Policy (Sec. 457.8), the 
insurance period for prevented planting coverage begins:
    (i) On the sales closing date contained in the Special 
Provisions for the insured crop in the county for the crop year the 
application for insurance is accepted; or
    (ii) For any subsequent crop year, on the sales closing date for 
the insured crop in the county for the previous crop year, provided 
continuous coverage has been in effect since that date. For example: 
If you make application and purchase insurance for wheat for the 
1996 crop year, prevented planting coverage will begin on the 1996 
sales closing date for the insured crop in the county. If the wheat 
coverage remains in effect for the 1997 crop year (is not terminated 
or canceled during or after the 1996 crop year, except the policy 
may have been canceled to transfer the policy to a different 
insurance provider, if there is no lapse in coverage), prevented 
planting coverage for the 1997 crop year began on the 1996 sales 
closing date.
    (4) The acreage to which prevented planting coverage applies 
will not exceed the total eligible acreage on all Consolidated Farm 
Service Agency (CFSA) Farm Serial Numbers in which you have a share, 
adjusted for any reconstitution that may have occurred before the 
sales closing date. Eligible acreage for each CFSA Farm Serial 
Number is determined as follows:
    (i) If you participate in any program administered by the United 
States Department of Agriculture that limits the number of acres 
that may be planted for the crop year, the acreage eligible for 
prevented planting coverage will not exceed the total acreage 
permitted to be planted to the insured crop.
    (ii) If you do not participate in any program administered by 
the United States Department of Agriculture that limits the number 
of acres that may be planted, and unless we agree in writing before 
the sales closing date, eligible acreage will not exceed the greater 
of:
    (A) The CFSA base acreage for the insured crop, including acres 
that could be flexed from another crop, if applicable;
    (B) The number of acres planted to the insured crop during the 
previous crop year; or
    (C) One hundred percent (100%) of the simple average of the 
number of acres planted to the insured crop during the crop years 
that you certified to determine your yield.
    (iii) Acreage intended to be planted under an irrigated practice 
will be limited to the number of acres for which you had adequate 
irrigation facilities prior to the insured cause of loss which 
prevented you from planting.
    (iv) Prevented planting coverage will not be provided for any 
acreage:
    (A) That does not constitute at least 20 acres or 20 percent 
(20%) of the acreage in the unit, whichever is less (Acreage that is 
less than 20 acres or 20 percent of the acreage in the unit will be 
presumed to have been intended to be planted to the insured crop 
planted in the unit, unless you can show that you had the inputs 
available before the final planting date to plant and produce 
another insured crop on the acreage);
    (B) For which the actuarial table does not designate a premium 
rate unless a written agreement designates such premium rate;
    (C) Used for conservation purposes or intended to be left 
unplanted under any program administered by the United States 
Department of Agriculture;
    (D) On which another crop is prevented from planting, if any 
crop has already received a prevented planting indemnity, guarantee 
or amount of insurance on the same acreage in the same crop year, 
unless you provide adequate records of acreage and production 
showing that the acreage has a history of double-cropping in each of 
the last four years;
    (E) On which another crop is prevented from planting, if any 
crop was planted and failed, or was planted and harvested (including 
hayed or grazed) on the same acreage in the same crop year, unless 
you provide adequate records of acreage and production showing that 
the acreage has a history of double-cropping in each of the last 
four years;
    (F) When coverage is provided under the Catastrophic Risk 
Endorsement if you plant another crop for harvest on any acreage you 
were prevented from planting in the same crop year, even if you have 
a history of double cropping. If you have a Catastrophic Risk 
Endorsement and receive a prevented planting indemnity, guarantee, 
or amount of insurance for a crop and are prevented from planting 
another crop on the same acreage, you may only receive the prevented 
planting indemnity, guarantee, or amount of insurance for the crop 
on which the prevented planting indemnity, guarantee, or amount of 
insurance is received;
    (G) For which planting history or conservation plans indicate 
that the acreage would have remained fallow for crop rotation 
purposes.
    (v) For the purpose of determining eligible acreage for 
prevented planting coverage, acreage for all units will be combined 
and be reduced by the number of acres of the insured crop that are 
timely planted and late planted, if the late planting period is 
applicable. For example, assume you have 100 acres eligible for 
prevented planting coverage in which you have a 100 percent (100%) 
share. The acreage is located in a single CFSA Farm Serial Number 
which you insure as two separate optional units consisting of 50 
acres each. If you planted 60 

[[Page 56264]]
acres of the insured crop on one optional unit and 40 acres of the 
insured crop on the second optional unit, your prevented planting 
eligible acreage would be reduced to zero (i.e., 100 acres eligible 
for prevented planting coverage minus 100 acres planted equals 
zero).
    (5) In accordance with the provisions of section 6 (Report of 
Acreage) of the Common Crop Insurance Policy (Sec. 457.8), you must 
report by unit any insurable acreage that you were prevented from 
planting. This report must be submitted on or before the acreage 
reporting date for spring-planted acreage of the insured crop in 
counties for which the Special Provisions designates a spring final 
planting date, or the acreage reporting date for fall-planted 
acreage of the insured crop in counties for which the Special 
Provisions designates a fall final planting date only. The total 
amount of prevented planting and planted acres cannot exceed the 
maximum number of acres eligible for prevented planting coverage. 
Any acreage you report in excess of the number of acres eligible for 
prevented planting coverage, or that exceeds the number of eligible 
acres physically located in a unit, will be deleted from your 
acreage report.

    12. Section 457.104 is amended by revising paragraph 1(n) of the 
Cotton Crop Provisions to read as follows:

Sec. 457.104  Cotton crop insurance provisions.

* * * * *

1. Definitions

* * * * *
    (n) Prevented planting--Inability to plant the insured crop with 
proper equipment by the final planting date designated in the 
Special Provisions for the insured crop in the county or the end of 
the late planting period. You must have been unable to plant the 
insured crop due to an insured cause of loss that has prevented most 
producers in the surrounding area from planting.
* * * * *
    13. Section 457.104 is amended by revising paragraphs 12(a)(3), 
12(b), and 12(d) to read as follows:
* * * * *

12. Late Planting and Prevented Planting

    (a) * * *
    (3) For prevented planting acreage, multiply the per acre 
production guarantee for timely planted acreage by:
    (i) Thirty-five percent (0.35) and multiply the result by the 50 
acres you were prevented from planting, if the acreage is eligible 
for prevented planting coverage, and if the acreage is left idle for 
the crop year, or if a cover crop is planted not for harvest. 
Prevented planting compensation hereunder will not be denied because 
the cover crop is hayed or grazed; or
    (ii) Seventeen and five tenths percent (0.175) and multiply the 
result by the 50 acres you were prevented from planting, if the 
acreage is eligible for prevented planting coverage, and if you 
elect to plant a substitute crop for harvest after the intended crop 
was prevented from being planted. (This subparagraph (ii) is not 
applicable, and prevented planting coverage is not available 
hereunder, if you elected the Catastrophic Risk Protection 
Endorsement or you elected to exclude prevented planting coverage 
when a substitute crop is planted (see subparagraph 12(d)(1)(iii))).
    The total of the three calculations will be the production 
guarantee for the unit. Your premium will be based on the result of 
multiplying the per acre production guarantee for timely planted 
acreage by the 150 acres in the unit.
    (b) If you were prevented from planting, you must provide 
written notice to us not later than the acreage reporting date.
* * * * *
    (d) Prevented Planting (Including Planting After the Late 
Planting Period)
    (1) If you were prevented from planting cotton (see subsection 
1(n)), you may elect:
    (i) To plant cotton during the late planting period. The 
production guarantee for such acreage will be determined in 
accordance with paragraph 12(c)(1);
    (ii) Not to plant this acreage to any crop except a cover crop 
not for harvest. You may also elect to plant the insured crop after 
the late planting period. In either case, the production guarantee 
for such acreage will be thirty-five percent (35%) of the production 
guarantee for timely planted acres. For example, if your production 
guarantee for timely planted acreage is 700 pounds per acre, your 
prevented planting production guarantee would be 245 pounds per acre 
(700 pounds multiplied by 0.35). If you elect to plant the insured 
crop after the late planting period, production to count for such 
acreage will be determined in accordance with subsections 11 (c) and 
(d); or
    (iii) Not to plant the intended crop but plant a substitute crop 
for harvest, in which case the production guarantee for such acreage 
will be seventeen and five tenths percent (17.5%) of the production 
guarantee for timely planted acres. If you elected the Catastrophic 
Risk Protection Endorsement or excluded this coverage, and plant a 
substitute crop, no prevented planting coverage will be provided. 
For example, if your production guarantee for timely planted acreage 
is 700 pounds per acre, your prevented planting production guarantee 
would be 122.5 pounds per acre (700 pounds multiplied by 0.175). You 
may elect to exclude prevented planting coverage when a substitute 
crop is planted for harvest and receive a reduction in the 
applicable premium rate. If you wish to exclude this coverage, you 
must so indicate on your application or on a form approved by us. 
Your election to exclude this coverage will remain in effect from 
year to year unless you notify us in writing on our form by the 
applicable sales closing date for the crop year for which you wish 
to include this coverage. All acreage of the crop insured under this 
policy will be subject to this exclusion.
    (2) Proof that you had the inputs available to plant and produce 
the intended crop with the expectation of at least producing the 
production guarantee may be required.
    (3) In addition to the provisions of section 11 (Insurance 
Period) of the Common Crop Insurance Policy (Sec. 457.8), the 
insurance period for prevented planting coverage begins:
    (i) On the sales closing date contained in the Special 
Provisions for the insured crop in the county for the crop year the 
application for insurance is accepted; or
    (ii) For any subsequent crop year, on the sales closing date for 
the insured crop in the county for the previous crop year, provided 
continuous coverage has been in effect since that date. For example: 
If you make application and purchase a cotton crop insurance policy 
for the 1996 crop year, prevented planting coverage will begin on 
the 1996 sales closing date for the cotton crop in the county. If 
the cotton coverage remains in effect for the 1997 crop year (is not 
terminated or cancelled during or after the 1996 crop year, except 
the policy may have been cancelled to transfer the policy to a 
different insurance provider, if there is no lapse in coverage), 
prevented planting coverage for the 1997 crop year began on the 1996 
sales closing date.
    (4) The acreage to which prevented planting coverage applies 
will not exceed the total eligible acreage on all Consolidated Farm 
Service Agency (CFSA) Farm Serial Numbers in which you have a share, 
adjusted for any reconstitution that may have occurred before the 
sales closing date. Eligible acreage for each CFSA Farm Serial 
Number is determined as follows:
    (i) If you participate in any program administered by the United 
States Department of Agriculture that limits the number of acres 
that may be planted for the crop year, the acreage eligible for 
prevented planting coverage will not exceed the total acreage 
permitted to be planted to the insured crop.
    (ii) If you do not participate in any program administered by 
the United States Department of Agriculture that limits the number 
of acres that may be planted, and unless we agree in writing before 
the sales closing date, eligible acreage will not exceed the greater 
of:
    (A) The CFSA base acreage for the insured crop, including acres 
that could be flexed to another crop, if applicable;
    (B) The number of acres planted to cotton during the previous 
crop year; or
    (C) One hundred percent (100%) of the simple average of the 
number of acres planted to cotton during the crop years that you 
certified to determine your yield.
    (iii) Acreage intended to be planted under an irrigated practice 
will be limited to the number of acres for which you had adequate 
irrigation facilities prior to the insured cause of loss which 
prevented you from planting.
    (iv) Prevented planting coverage will not be provided for any 
acreage:
    (A) That does not constitute at least 20 acres or 20 percent 
(20%) of the acreage in the unit, whichever is less (Acreage that is 
less than 20 acres or 20 percent of the acreage in the unit will be 
presumed to have been intended to be planted to the insured crop 
planted in the unit, unless you can show that you had the inputs 
available before the final planting date to plant and produce 
another insured crop on the acreage);
    (B) For which the actuarial table does not designate a premium 
rate unless a written agreement designates such premium rate;
    (C) Used for conservation purposes or intended to be left 
unplanted under any 

[[Page 56265]]
program administered by the United States Department of Agriculture;
    (D) On which another crop is prevented from planting, if any 
crop has already received a prevented planting indemnity, guarantee 
or amount of insurance on the same acreage in the same crop year, 
unless you provide adequate records of acreage and production 
showing that the acreage has a history of double-cropping in each of 
the last four years;
    (E) On which another crop is prevented from planting, if any 
crop was planted and failed, or was planted and harvested (including 
hayed or grazed) on the same acreage in the same crop year, unless 
you provide adequate records of acreage and production showing that 
the acreage has a history of double-cropping in each of the last 
four years;
    (F) When coverage is provided under the Catastrophic Risk 
Endorsement if you plant another crop for harvest on any acreage you 
were prevented from planting in the same crop year, even if you have 
a history of double cropping. If you have a Catastrophic Risk 
Endorsement and receive a prevented planting indemnity, guarantee, 
or amount of insurance for a crop and are prevented from planting 
another crop on the same acreage, you may only receive the prevented 
planting indemnity, guarantee, or amount of insurance for the crop 
on which the prevented planting indemnity, guarantee, or amount of 
insurance is received;
    (G) For which planting history or conservation plans indicate 
that the acreage would have remained fallow for crop rotation 
purposes.
    (v) For the purpose of determining eligible acreage for 
prevented planting coverage, acreage for all units will be combined 
and be reduced by the number of cotton acres timely planted and late 
planted. For example, assume you have 100 acres eligible for 
prevented planting coverage in which you have a 100 percent (100%) 
share. The acreage is located in a single CFSA Farm Serial Number 
which you insure as two separate optional units consisting of 50 
acres each. If you planted 60 acres of cotton on one optional unit 
and 40 acres of cotton on the second optional unit, your prevented 
planting eligible acreage would be reduced to zero (i.e., 100 acres 
eligible for prevented planting coverage minus 100 acres planted 
equals zero).
    (5) In accordance with the provisions of section 6 (Report of 
Acreage) of the Common Crop Insurance Policy (Sec. 457.8), you must 
report by unit any insurable acreage that you were prevented from 
planting. This report must be submitted on or before the acreage 
reporting date. The total amount of prevented planting and planted 
acres cannot exceed the maximum number of acres eligible for 
prevented planting coverage. Any acreage you report in excess of the 
number of acres eligible for prevented planting coverage, or that 
exceeds the number of eligible acres physically located in a unit, 
will be deleted from your acreage report.

    14. Section 457.105 is amended by revising paragraph 1(l) of the 
ELS Cotton Crop Provisions to read as follows:

Sec. 457.105  Extra long staple cotton crop insurance provisions.

* * * * *

1. Definitions

* * * * *
    (l) Prevented planting--Inability to plant the insured crop with 
proper equipment by the final planting date designated in the 
Special Provisions for the insured crop in the county. You must have 
been unable to plant the insured crop due to an insured cause of 
loss that has prevented most producers in the surrounding area from 
planting.
* * * * *
    15. Section 457.105 is amended by revising paragraphs 12(a)(2) and 
12(b) through (h) to read as follows:
* * * * *

12. Prevented Planting

    (a) * * *
    (2) For prevented planting acreage, multiply the per acre 
production guarantee for timely planted acreage by:
    (i) Thirty-five percent (0.35) and multiply the result by the 50 
acres you were prevented from planting, if the acreage is eligible 
for prevented planting coverage, and if the acreage is left idle for 
the crop year, or if a cover crop is planted not for harvest. 
Prevented planting compensation hereunder will not be denied because 
the cover crop is hayed or grazed; or
    (ii) Seventeen and five tenths percent (0.175) and multiply the 
result by the 50 acres you were prevented from planting, if the 
acreage is eligible for prevented planting coverage, and if you 
elect to plant a substitute crop for harvest after the intended crop 
was prevented from being planted. (This subparagraph (ii) is not 
applicable, and prevented planting coverage is not available 
hereunder, if you elected the Catastrophic Risk Protection 
Endorsement or you elected to exclude prevented planting coverage 
when a substitute crop is planted (see subsection 12(b)(2))).
    The total of the two calculations will be the production 
guarantee for the unit. Your premium will be based on the result of 
multiplying the per acre production guarantee for timely planted 
acreage by the 100 acres in the unit.
    (b) If you were prevented from planting ELS cotton (see 
subsection 1(l)), you may elect:
    (1) Not to plant this acreage to any crop except a cover crop 
not for harvest. You may also elect to plant the insured crop after 
the final planting date. In either case, the production guarantee 
for such acreage will be thirty-five percent (35%) of the production 
guarantee for timely planted acres. For example, if your production 
guarantee for timely planted acreage is 600 pounds per acre, your 
prevented planting production guarantee would be 210 pounds per acre 
(600 pounds multiplied by 0.35). If you elect to plant the insured 
crop after the final planting date, production to count for such 
acreage will be determined in accordance with subsections 11(c) 
through (f); or
    (2) Not to plant the intended crop but plant a substitute crop 
for harvest, in which case the production guarantee for such acreage 
will be seventeen and five tenths percent (17.5%) of the production 
guarantee for timely planted acres. If you elected the Catastrophic 
Risk Protection Endorse
FR Doc. 95-27711 General Crop Insurance Regulations, Various Endorsements; Hybrid Seed Crop Insurance Regulations; and Common Crop Insurance Regulations, Various Crop Insurance Provisions
ment or excluded this coverage, and plant a 
substitute crop, no prevented planting coverage will be provided. 
For example, if your production guarantee for timely planted acreage 
is 700 pounds per acre, your prevented planting production guarantee 
would be 122.5 pounds per acre (700 pounds multiplied by 0.175). You 
may elect to exclude prevented planting coverage when a substitute 
crop is planted for harvest and receive a reduction in the 
applicable premium rate. If you wish to exclude this coverage, you 
must so indicate on your application or on a form approved by us. 
Your election to exclude this coverage will remain in effect from 
year to year unless you notify us in writing on our form by the 
applicable sales closing date for the crop year for which you wish 
to include this coverage. All acreage of the crop insured under this 
policy will be subject to this exclusion.
    (c) Proof that you had the inputs available to plant and produce 
the intended crop with the expectation of at least producing the 
production guarantee may be required.
    (d) In addition to the provisions of section 11 (Insurance 
Period) of the Common Crop Insurance Policy (Sec. 457.8), the 
insurance period for prevented planting coverage begins:
    (1) On the sales closing date contained in the Special 
Provisions for the insured crop in the county for the crop year the 
application for insurance is accepted; or
    (2) For any subsequent crop year, on the sales closing date for 
the insured crop in the county for the previous crop year, provided 
continuous coverage has been in effect since that date. For example: 
If you make application and purchase an ELS cotton crop insurance 
policy for the 1996 crop year, prevented planting coverage will 
begin on the 1996 sales closing date for the insured crop in the 
county. If the ELS cotton coverage remains in effect for the 1997 
crop year (is not terminated or cancelled during or after the 1996 
crop year, except the policy may have been cancelled to transfer the 
policy to a different insurance provider, if there is no lapse in 
coverage), prevented planting coverage for the 1997 crop year began 
on the 1996 sales closing date.
    (e) If you were prevented from planting, you must provide 
written notice to us not later than the acreage reporting date.
    (f) The acreage to which prevented planting coverage applies 
will not exceed the total eligible acreage on all Consolidated Farm 
Service Agency (CFSA) Farm Serial Numbers in which you have a share, 
adjusted for any reconstitution that may have occurred before the 
sales closing date. Eligible acreage for each CFSA Farm Serial 
Number is determined as follows:
    (1) If you participate in any program administered by the United 
States Department of Agriculture that limits the number of acres 
that may be planted for the crop year, the acreage eligible for 
prevented planting coverage will not exceed the total acreage 
permitted to be planted to the insured crop.
    (2) If you do not participate in any program administered by the 
United States 

[[Page 56266]]
Department of Agriculture that limits the number of acres that may be 
planted, and unless we agree in writing before the sales closing 
date, eligible acreage will not exceed the greater of:
    (i) The CFSA base acreage for the insured crop, including acres 
that could be flexed from another crop, if applicable;
    (ii) The number of acres planted to ELS cotton during the 
previous crop year; or
    (iii) One hundred percent (100%) of the simple average of the 
number of acres planted to ELS cotton during the crop years that you 
certified to determine your yield.
    (3) Acreage intended to be planted under an irrigated practice 
will be limited to the number of acres for which you had adequate 
irrigation facilities prior to the insured cause of loss which 
prevented you from planting.
    (4) Prevented planting coverage will not be provided for any 
acreage:
    (i) That does not constitute at least 20 acres or 20 percent 
(20%) of the acreage in the unit, whichever is less (Acreage that is 
less than 20 acres or 20 percent of the acreage in the unit will be 
presumed to have been intended to be planted to the insured crop 
planted in the unit, unless you can show that you had the inputs 
available before the final planting date to plant and produce 
another insured crop on the acreage);
    (ii) For which the actuarial table does not designate a premium 
rate unless a written agreement designates such premium rate;
    (iii) Used for conservation purposes or intended to be left 
unplanted under any program administered by the United States 
Department of Agriculture;
    (iv) On which another crop is prevented from planting, if any 
crop has already received a prevented planting indemnity, guarantee 
or amount of insurance on the same acreage in the same crop year;
    (v) On which another crop is prevented from planting, if any 
crop was planted and failed, or was planted and harvested (including 
hayed or grazed) on the same acreage in the same crop year;
    (vi) When coverage is provided under the Catastrophic Risk 
Endorsement if you plant another crop for harvest on any acreage you 
were prevented from planting in the same crop year. If you have a 
Catastrophic Risk Endorsement and receive a prevented planting 
indemnity, guarantee, or amount of insurance for a crop and are 
prevented from planting another crop on the same acreage, you may 
only receive the prevented planting indemnity, guarantee, or amount 
of insurance for the crop on which the prevented planting indemnity, 
guarantee, or amount of insurance is received;
    (vii) For which planting history or conservation plans indicate 
that the acreage would have remained fallow for crop rotation 
purposes.
    (5) For the purpose of determining eligible acreage for 
prevented planting coverage, acreage for all units will be combined 
and be reduced by the number of ELS cotton acres timely planted. For 
example, assume you have 100 acres eligible for prevented planting 
coverage in which you have a 100 percent (100%) share. The acreage 
is located in a single CFSA Farm Serial Number which you insure as 
two separate optional units consisting of 50 acres each. If you 
planted 60 acres of ELS cotton on one optional unit and 40 acres of 
ELS cotton on the second optional unit, your prevented planting 
eligible acreage would be reduced to zero. (i.e., 100 acres eligible 
for prevented planting coverage minus 100 acres planted equals 
zero).
    (g) In accordance with the provisions of section 6 (Report of 
Acreage) of the Common Crop Insurance Policy (Sec. 457.8), you must 
report by unit any insurable acreage that you were prevented from 
planting. This report must be submitted on or before the acreage 
reporting date. The total amount of prevented planting and planted 
acres cannot exceed the maximum number of acres eligible for 
prevented planting coverage. Any acreage you report in excess of the 
number of acres eligible for prevented planting coverage, or that 
exceeds the number of eligible acres physically located in a unit, 
will be deleted from your acreage report.
    (h) Late planting provisions are not available under these crop 
provisions.

    16. Section 457.108 is amended by revising paragraph 1(l) of the 
Sunflower Seed Crop Provisions to read as follows:

Sec. 457.108  Sunflower seed crop insurance provisions.

* * * * *

1. Definitions

* * * * *
    (l) Prevented planting--Inability to plant the insured crop with 
proper equipment by the final planting date designated in the 
Special Provisions for the insured crop in the county or the end of 
the late planting period. You must have been unable to plant the 
insured crop due to an insured cause of loss that has prevented most 
producers in the surrounding area from planting.
* * * * *
    17. Section 457.108 is amended by revising paragraphs 13(a)(3), 
13(b), and 13(d) to read as follows:
* * * * *

13. Late Planting and Prevented Planting

    (a) * * *
    (3) For prevented planting acreage, multiply the per acre 
production guarantee for timely planted acreage by:
    (i) Fifty percent (0.50) and multiply the result by the 50 acres 
you were prevented from planting, if the acreage is eligible for 
prevented planting coverage, and if the acreage is left idle for the 
crop year, or if a cover crop is planted not for harvest. Prevented 
planting compensation hereunder will not be denied because the cover 
crop is hayed or grazed; or
    (ii) Twenty-five percent (0.25) and multiply the result by the 
50 acres you were prevented from planting, if the acreage is 
eligible for prevented planting coverage, and if you elect to plant 
a substitute crop for harvest after the intended crop was prevented 
from being planted. (This subparagraph (ii) is not applicable, and 
prevented planting coverage is not available hereunder, if you 
elected the Catastrophic Risk Protection Endorsement or you elected 
to exclude prevented planting coverage when a substitute crop is 
planted (see subsection 13(d)(1)(iii))).
    The total of the three calculations will be the production 
guarantee for the unit. Your premium will be based on the result of 
multiplying the per acre production guarantee for timely planted 
acreage by the 150 acres in the unit.
    (b) If you were prevented from planting, you must provide 
written notice to us not later than the acreage reporting date.
* * * * *
    (d) Prevented Planting (Including Planting After the Late 
Planting Period)
    (1) If you were prevented from planting sunflowers (see 
subsection 1(l)), you may elect:
    (i) To plant sunflower seed during the late planting period. The 
production guarantee for such acreage will be determined in 
accordance with paragraph 13(c)(1);
    (ii) Not to plant this acreage to any crop except a cover crop 
not for harvest. You may also elect to plant the insured crop after 
the late planting period. In either case, the production guarantee 
for such acreage will be fifty percent (50%) of the production 
guarantee for timely planted acres. For example, if your production 
guarantee for timely planted acreage is 900 pounds per acre, your 
prevented planting production guarantee would be 450 pounds per acre 
(900 pounds multiplied by 0.50). If you elect to plant the insured 
crop after the late planting period, production to count for such 
acreage will be determined in accordance with subsections 12(c) 
through (e); or
    (iii) Not to plant the intended crop but plant a substitute crop 
for harvest, in which case the production guarantee for such acreage 
will be twenty-five percent (25%) of the production guarantee for 
timely planted acres. If you elected the Catastrophic Risk 
Protection Endorsement or excluded this coverage, and plant a 
substitute crop, no prevented planting coverage will be provided. 
For example, if your production guarantee for timely planted acreage 
is 900 pounds per acre, your prevented planting production guarantee 
would be 225 pounds per acre (900 pounds multiplied by 0.25). You 
may elect to exclude prevented planting coverage when a substitute 
crop is planted for harvest and receive a reduction in the 
applicable premium rate. If you wish to exclude this coverage, you 
must so indicate on your application or on a form approved by us. 
Your election to exclude this coverage will remain in effect from 
year to year unless you notify us in writing on our form by the 
applicable sales closing date for the crop year for which you wish 
to include this coverage. All acreage of the crop insured under this 
policy will be subject to this exclusion.
    (2) Proof that you had the inputs available to plant and produce 
the intended crop with the expectation of at least producing the 
production guarantee may be required.
    (3) In addition to the provisions of section 11 (Insurance 
Period) of the Basic Provisions (Sec. 457.8), the insurance period 
for prevented planting coverage begins:
    (i) On the sales closing date contained in the Special 
Provisions for the insured crop in the county for the crop year the 
application for insurance is accepted; or 

[[Page 56267]]

    (ii) For any subsequent crop year, on the sales closing date for 
the insured crop in the county for the previous crop year, provided 
continuous coverage has been in effect since that date. For example: 
If you make application and purchase a sunflower seed crop insurance 
policy for the 1996 crop year, prevented planting coverage will 
begin on the 1996 sales closing date for the insured crop in the 
county. If the sunflower seed coverage remains in effect for the 
1997 crop year (is not terminated or cancelled during or after the 
1996 crop year, except the policy may have been cancelled to 
transfer the policy to a different insurance provider, if there is 
no lapse in coverage), prevented planting coverage for the 1997 crop 
year began on the 1996 sales closing date.
    (4) The acreage to which prevented planting coverage applies 
will not exceed the total eligible acreage on all Consolidated Farm 
Service Agency (CFSA) Farm Serial Numbers in which you have a share, 
adjusted for any reconstitution that may have occurred before the 
sales closing date. Eligible acreage for each CFSA Farm Serial 
Number is determined as follows:
    (i) If you participate in any program administered by the United 
States Department of Agriculture that limits the number of acres 
that may be planted for the crop year, the acreage eligible for 
prevented planting coverage will not exceed the total acreage 
permitted to be planted to the insured crop.
    (ii) If you do not participate in any program administered by 
the United States Department of Agriculture that limits the number 
of acres that may be planted, and unless we agree in writing before 
the sales closing date, eligible acreage will not exceed the greater 
of:
    (A) The CFSA base acreage for the insured crop, including acres 
that could be flexed from another crop, if applicable;
    (B) The number of acres planted to sunflower seed during the 
previous crop year; or
    (C) One hundred percent (100%) of the simple average of the 
number of acres planted to sunflower seed during the crop years that 
you certified to determine your yield.
    (iii) Acreage intended to be planted under an irrigated practice 
will be limited to the number of acres for which you had adequate 
irrigation facilities prior to the insured cause of loss which 
prevented you from planting.
    (iv) Prevented planting coverage will not be provided for any 
acreage:
    (A) That does not constitute at least 20 acres or 20 percent 
(20%) of the acreage in the unit, whichever is less (Acreage that is 
less than 20 acres or 20 percent of the acreage in the unit will be 
presumed to have been intended to be planted to the insured crop 
planted in the unit, unless you can show that you had the inputs 
available before the final planting date to plant and produce 
another insured crop on the acreage);
    (B) For which the actuarial table does not designate a premium 
rate unless a written agreement designates such premium rate;
    (C) Used for conservation purposes or intended to be left 
unplanted under any program administered by the United States 
Department of Agriculture;
    (D) On which another crop is prevented from planting, if any 
crop has already received a prevented planting indemnity, guarantee 
or amount of insurance on the same acreage in the same crop year, 
unless you provide adequate records of acreage and production 
showing that the acreage has a history of double-cropping in each of 
the last four years;
    (E) On which another crop is prevented from planting, if any 
crop was planted and failed, or was planted and harvested (including 
hayed or grazed) on the same acreage in the same crop year, unless 
you provide adequate records of acreage and production showing that 
the acreage has a history of double-cropping in each of the last 
four years;
    (F) When coverage is provided under the Catastrophic Risk 
Endorsement if you plant another crop for harvest on any acreage you 
were prevented from planting in the same crop year, even if you have 
a history of double cropping. If you have a Catastrophic Risk 
Endorsement and receive a prevented planting indemnity, guarantee, 
or amount of insurance for a crop and are prevented from planting 
another crop on the same acreage, you may only receive the prevented 
planting indemnity, guarantee, or amount of insurance for the crop 
on which the prevented planting indemnity, guarantee, or amount of 
insurance is received;
    (G) For which planting history or conservation plans indicate 
that the acreage would have remained fallow for crop rotation 
purposes.
    (v) For the purpose of determining eligible acreage for 
prevented planting coverage, acreage for all units will be combined 
and be reduced by the number of sunflower acres timely planted and 
late planted. For example, assume you have 100 acres eligible for 
prevented planting coverage in which you have a 100 percent (100%) 
share. The acreage is located in a single CFSA Farm Serial Number 
which you insure as two separate optional units consisting of 50 
acres each. If you planted 60 acres of sunflower seed on one 
optional unit and 40 acres of sunflower seed on the second optional 
unit, your prevented planting eligible acreage would be reduced to 
zero (i.e.,100 acres eligible for prevented planting coverage minus 
100 acres planted equals zero).
    (5) In accordance with the provisions of section 6 (Report of 
Acreage) of the Basic Provisions (Sec. 457.8), you must report by 
unit any insurable acreage that you were prevented from planting. 
This report must be submitted on or before the acreage reporting 
date. The total amount of prevented planting and planted acres 
cannot exceed the maximum number of acres eligible for prevented 
planting coverage. Any acreage you report in excess of the number of 
acres eligible for prevented planting coverage, or that exceeds the 
number of eligible acres physically located in a unit, will be 
deleted from your acreage report.
    18. Section 457.113 is amended by revising paragraph 1(n) of the 
Coarse Grains Crop Insurance Provisions to read as follows:

Sec. 457.113 Coarse Grains Crop Insurance Provisions.

* * * * *

1. Definitions

* * * * *
    (n) Prevented planting--Inability to plant the insured crop with 
proper equipment by the final planting date designated in the 
Special Provisions for the insured crop in the county or the end of 
the late planting period. You must have been unable to plant the 
insured crop due to an insured cause of loss that has prevented most 
producers in the surrounding area from planting.
* * * * *
    19. Section 457.113 is amended by revising paragraphs 13(a)(3), 
13(b), and 13(d) to read as follows:
* * * * *

13. Late Planting and Prevented Planting

    (a) * * *
    (3) For prevented planting acreage, multiply the per acre 
production guarantee for timely planted acreage by:
    (i) Fifty percent (0.50) and multiply the result by the 50 acres 
you were prevented from planting, if the acreage is eligible for 
prevented planting coverage, and if the acreage is left idle for the 
crop year, or if a cover crop is planted not for harvest. Prevented 
planting compensation hereunder will not be denied because the cover 
crop is hayed or grazed; or
    (ii) Twenty-five percent (0.25) and multiply the result by the 
50 acres you were prevented from planting, if the acreage is 
eligible for prevented planting coverage, and if you elect to plant 
a substitute crop for harvest after the intended crop was prevented 
from being planted. (This subparagraph (ii) is not applicable, and 
prevented planting coverage is not available hereunder, if you 
elected the Catastrophic Risk Protection Endorsement or you elected 
to exclude prevented planting coverage when a substitute crop is 
planted (see subsection 13(d)(1)(iii))).
    The total of the three calculations will be the production 
guarantee for the unit. Your premium will be based on the result of 
multiplying the per acre production guarantee for timely planted 
acreage by the 150 acres in the unit.
    (b) If you were prevented from planting, you must provide 
written notice to us not later than the acreage reporting date.
* * * * *
    (d) Prevented Planting (Including Planting After the Late 
Planting Period).
    (1) If you were prevented from planting the insured crop (see 
subsection 1(n)), you may elect:
    (i) To plant the insured crop during the late planting period. 
The production guarantee for such acreage will be determined in 
accordance with paragraph 13(c)(1);
    (ii) Not to plant this acreage to any crop except a cover crop 
not for harvest. You may also elect to plant the insured crop after 
the late planting period. In either case, the production guarantee 
for such acreage will be fifty percent (50%) of the production 
guarantee for timely planted acres. For 

[[Page 56268]]
example, if your production guarantee for timely planted acreage is 30 
bushels per acre, your prevented planting production guarantee would 
be 15 bushels per acre (30 bushels multiplied by 0.50). If you elect 
to plant the insured crop after the late planting period, production 
to count for such acreage will be determined in accordance with 
subsections 12(c) through (g); or
    (iii) Not to plant the intended crop but plant a substitute crop 
for harvest, in which case the production guarantee for such acreage 
will be twenty-five percent (25%) of the production guarantee for 
timely planted acres. If you elected the Catastrophic Risk 
Protection Endorsement or excluded this coverage, and plant a 
substitute crop, no prevented planting coverage will be provided. 
For example, if your production guarantee for timely planted acreage 
is 30 bushels per acre, your prevented planting production guarantee 
would be 7.5 bushels per acre (30 bushels multiplied by 0.25). You 
may elect to exclude prevented planting coverage when a substitute 
crop is planted for harvest and receive a reduction in the 
applicable premium rate. If you wish to exclude this coverage, you 
must so indicate on your application or on a form approved by us. 
Your election to exclude this coverage will remain in effect from 
year to year unless you notify us in writing on our form by the 
applicable sales closing date for the crop year for which you wish 
to include this coverage. All acreage of the crop insured under this 
policy will be subject to this exclusion.
    (2) Proof that you had the inputs available to plant and produce 
the intended crop with the expectation of at least producing the 
production guarantee may be required.
    (3) In addition to the provisions of section 11 (Insurance 
Period) of the Common Crop Insurance Policy (Sec. 457.8), the 
insurance period for prevented planting coverage begins:
    (i) On the sales closing date contained in the Special 
Provisions for the insured crop in the county for the crop year the 
application for insurance is accepted; or
    (ii) For any subsequent crop year, on the sales closing date for 
the insured crop in the county for the previous crop year, provided 
continuous coverage has been in effect since that date. For example: 
If you make application and purchase insurance for corn for the 1996 
crop year, prevented planting coverage will begin on the 1996 sales 
closing date for corn in the county. If the corn coverage remains in 
effect for the 1997 crop year (is not terminated or cancelled during 
or after the 1996 crop year, except the policy may have been 
cancelled to transfer the policy to a different insurance provider, 
if there is no lapse in coverage), prevented planting coverage for 
the 1997 crop year began on the 1996 sales closing date.
    (4) The acreage to which prevented planting coverage applies 
will not exceed the total eligible acreage on all Consolidated Farm 
Service Agency (CFSA) Farm Serial Numbers in which you have a share, 
adjusted for any reconstitution that may have occurred before the 
sales closing date. Eligible acreage for each CFSA Farm Serial 
Number is determined as follows:
    (i) If you participate in any program administered by the United 
States Department of Agriculture that limits the number of acres 
that may be planted for the crop year, the acreage eligible for 
prevented planting coverage will not exceed the total acreage 
permitted to be planted to the insured crop.
    (ii) If you do not participate in any program administered by 
the United States Department of Agriculture that limits the number 
of acres that may be planted, and unless we agree in writing before 
the sales closing date, eligible acreage will not exceed the greater 
of:
    (A) The CFSA base acreage for the insured crop, including acres 
that could be flexed from another crop, if applicable;
    (B) The number of acres planted to the insured crop during the 
previous crop year; or
    (C) One hundred percent (100%) of the simple average of the 
number of acres planted to the insured crop during the crop years 
that you certified to determine your yield.
    (iii) Acreage intended to be planted under an irrigated practice 
will be limited to the number of acres for which you had adequate 
irrigation facilities prior to the insured cause of loss which 
prevented you from planting.
    (iv) Prevented planting coverage will not be provided for any 
acreage:
    (A) That does not constitute at least 20 acres or 20 percent 
(20%) of the acreage in the unit, whichever is less (Acreage that is 
less than 20 acres or 20 percent of the acreage in the unit will be 
presumed to have been intended to be planted to the insured crop 
planted in the unit, unless you can show that you had the inputs 
available before the final planting date to plant and produce 
another insured crop on the acreage);
    (B) For which the actuarial table does not designate a premium 
rate unless a written agreement designates such premium rate;
    (C) Used for conservation purposes or intended to be left 
unplanted under any program administered by the United States 
Department of Agriculture;
    (D) On which another crop is prevented from planting, if any 
crop has already received a prevented planting indemnity, guarantee 
or amount of insurance on the same acreage in the same crop year, 
unless you provide adequate records of acreage and production 
showing that the acreage has a history of double-cropping in each of 
the last four years;
    (E) On which another crop is prevented from planting, if any 
crop was planted and failed, or was planted and harvested (including 
hayed or grazed) on the same acreage in the same crop year, unless 
you provide adequate records of acreage and production showing that 
the acreage has a history of double-cropping in each of the last 
four years;
    (F) When coverage is provided under the Catastrophic Risk 
Endorsement if you plant another crop for harvest on any acreage you 
were prevented from planting in the same crop year, even if you have 
a history of double cropping. If you have a Catastrophic Risk 
Endorsement and receive a prevented planting indemnity, guarantee, 
or amount of insurance for a crop and are prevented from planting 
another crop on the same acreage, you may only receive the prevented 
planting indemnity, guarantee, or amount of insurance for the crop 
on which the prevented planting indemnity, guarantee, or amount of 
insurance is received;
    (G) For which planting history or conservation plans indicate 
that the acreage would have remained fallow for crop rotation 
purposes.
    (v) For the purpose of determining eligible acreage for 
prevented planting coverage, acreage for all units will be combined 
and be reduced by the number of acres of the insured crop timely 
planted and late planted. For example, assume you have 100 acres 
eligible for prevented planting coverage in which you have a 100 
percent (100%) share. The acreage is located in a single CFSA Farm 
Serial Number which you insure as two separate optional units 
consisting of 50 acres each. If you planted 60 acres of the insured 
crop on one optional unit and 40 acres of the insured crop on the 
second optional unit, your prevented planting eligible acreage would 
be reduced to zero (i.e.,100 acres eligible for prevented planting 
coverage minus 100 acres planted equals zero).
    (5) In accordance with the provisions of section 6 (Report of 
Acreage) of the Common Crop Insurance Policy (Sec. 457.8), you must 
report by unit any insurable acreage that you were prevented from 
planting. This report must be submitted on or before the acreage 
reporting date. The total amount of prevented planting and planted 
acres cannot exceed the maximum number of acres eligible for 
prevented planting coverage. Any acreage you report in excess of the 
number of acres eligible for prevented planting coverage, or that 
exceeds the number of eligible acres physically located in a unit, 
will be deleted from your acreage report.

    Done in Washington, D.C., November 3, 1995.
Kenneth D. Ackerman,
Manager, Federal Crop Insurance Corporation.
[FR Doc. 95-27711 Filed 11-3-95; 4:27 pm]
BILLING CODE 3410-FA-P

Complete official Federal Register PDF

FR Doc. 95-27709 Proposed Amendment of Class E Airspace; Winnemucca, NV
[Federal Register Volume 60, Number 216 (Wednesday, November 8, 1995)]
[Proposed Rules]
[Pages 56277-56278]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27709]

-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION
14 CFR Part 71

[Airspace Docket No. 95-AWP-34]

Proposed Amendment of Class E Airspace; Winnemucca, NV

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: This notice proposes to amend the Class E airspace area at 
Winnemucca, NV. The development of a Global Positioning System (GPS) 
Standard Instrument Approach Procedure (SIAP) to Runway (RWY) 14/32 has 
made this proposal necessary. The intended effect of this proposal is 
to provide adequate controlled airspace for Instrument Flight Rules 
(IFR) operations at Winnemucca Municipal Airport, Winnemucca, NV.

DATES: Comments must be received on or before December 18, 1995.

ADDRESSES: Send comments on the proposal in triplicate to: Federal 
Aviation Administration, Attn: Manager, System Management Branch, AWP-
530, Docket No. 95-AWP-34, 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-34.'' 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 Winnemucca, NV. The development of a GPS SIAP at Winnemucca 
Municipal 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 14/32 SIAP at Winnemucca Municipal Airport, 
Winnemucca NV. Class E airspace designations for airspace areas 
extending upward from 700 feet or more above the surface of the 

[[Page 56278]]
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 NV E5 Winnemucca, NV [Revised]

Winnemucca Municipal Airport, NV
    (Lat. 40 deg.53'47'' N, long. 117 deg.48'21'' W)
Winnemucca NDB
    (Lat. 40 deg.57'48'' N, long. 117 deg.50'29'' W)
Battle Mountain VORTAC
    (Lat. 40 deg.34'09'' N, long. 116 deg.55'17'' W)

    That airspace extending upward from 700 feet above the surface 
within a 4.3-mile radius of the Winnemucca Municipal Airport and 
within 7.8 miles northwest and 4.3 miles east of the Winnemucca NDB 
342 deg. and 162 deg. bearings, extended from 4.3 miles south to 8.7 
miles north of the NDB. That airspace extending upward from 1,200 
feet above the surface within 4.3 miles northeast and 9.6 miles 
southwest of the Winnemucca NDB 342 deg. and 162 deg. bearings, 
extending from the southeast edge of V-113 to 9.6 miles southeast of 
the NDB and within 4.3 miles each of the 162 deg. bearing from the 
Winnemucca NDB, extending from the 9.6 miles southeast of the NDB to 
the north edge of V-32 and within 4.3 miles each side of the Battle 
Mountain VORTAC 296 deg. radial extending from 10.4 miles to 43.4 
miles northwest of the Battle Mountain VORTAC and that airspace 
bounded by a line beginning at lat. 40 deg.33'00'' N, long. 
117 deg.52'00'' W; to lat. 40 deg.37'30'' N, long. 117 deg.47'00'' 
W; to lat. 40 deg.34'00'' N, long. 117 deg.46'00'' W, thence to the 
point of beginning and that airspace bounded by a line beginning at 
lat. 41 deg.05'00'' N, long. 118 deg.12'30'' W to lat. 
41 deg.10'00'' N, long. 118 deg.08'30'' W, to lat. 41 deg.03'00'' N, 
long. 118 deg.06'00'' W, thence to the point of beginning and that 
airspace bounded by a line beginning at lat. 40 deg.46'00'' N, long. 
117 deg.39'00'' W, to lat. 40 deg.37'00'' N, long. 117 deg.35'00'' 
W, to lat. 40 deg.34'30'' N, long, 117 deg.34'30'' W, thence to the 
point of beginning.
* * * * *
    Issued in Los Angeles, California, on October 27, 1995.
Richard R. Lien,
Manager, Air Traffic Division Western-Pacific Region.
[FR Doc. 95-27709 Filed 11-07-95; 8:45 am]
BILLING CODE 4910-13-M

Complete official Federal Register PDF

FR Doc. 95-27708 Proposed Amendment of Class E Airspace; Alturas, CA
[Federal Register Volume 60, Number 216 (Wednesday, November 8, 1995)]
[Proposed Rules]
[Pages 56276-56277]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27708]

-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION
14 CFR Part 71

[Airspace Docket No. 95-AWP-37]

Proposed Amendment of Class E Airspace; Alturas, CA

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: This notice proposes to amend the Class E airspace area at 
Alturas, CA. The development of a Global Positioning System (GPS) 
Standard Instrument Approach Procedure (SIAP) to Runway (RWY) 31 has 
made this proposal necessary. The intended effect of this proposal is 
to provide adequate controlled airspace for Instrument Flight Rules 
(IFR) operations at Alturas Municipal Airport, Alturas, CA.

DATES: Comments must be received on or before December 20, 1995.

ADDRESSES: Send comments on the proposal in triplicate to: Federal 
Aviation Administration, Attn: Manager, System Management Branch, AWP-
530, Docket No. 95-AWP-37, 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 
hours 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-37.'' 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 Alturas, CA. The development of a GPS SIAP at Alturas Municipal 
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 31 SIAP at Alturas Municipal Airport, Alturas, CA. 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 

[[Page 56277]]
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 CA E5 Alturas, CA [Revised]

Alturas Municipal Airport, CA
    (Lat. 41 deg.28'59'' N, long. 120 deg.33'55'' W)

    That airspace extending upward from 700 feet above the surface 
beginning at lat. 41 deg.34'00'' N, long. 120 deg.46'24'' W; to lat. 
41 deg.36'50'' N, long. 120 deg.30'19'' W; to late.41 deg.14'20'' N, 
long. 120 deg.23'49''W; to lat. 41 deg.11'35'' N, long. 
120 deg.39'34'' W, thence to the point of beginning. That airspace 
extending upward from 1,200 feet above the surface beginning at lat. 
41 deg.22'10'' N, long. 120 deg.58'04'' W; to lat. 41 deg.28'13'' N, 
long. 120 deg.44'38'' W; to lat. 41 deg.19'03'' N, long. 
120 deg.41'50'' W; to lat. 41 deg.15'00'' N, long. 120 deg.51'04'' 
W, thence along the east edge of V-452 to the point of beginning and 
that airspace beginning at lat. 41 deg.33'17'' N, long. 
120 deg.29'19'' W; to lat. 41 deg.34'30'' N, long. 120 deg.20'04'' 
W; to lat. 41 deg.25'50'' N, long. 120 deg.18'34'' W; to lat. 
41 deg.24'46'' N, long. 120 deg.26'46'' W, thence to the point of 
beginning and that airspace beginning at lat. 41 deg.22'30'' N, 
long. 120 deg.58'00'' W; to lat. 41 deg.41'00'' N, long. 
120 deg.41'00'' W, to lat. 41 deg.41'00'' N, long. 120 deg.21'00'' 
W; to lat. 41 deg.14'00'' N, long. 120 deg.16'00'' W; to lat. 
41 deg.02'00'' N, long. 120 deg.38'30'' W, thence to the point of 
beginning.
    Issued in Los Angeles, California, on October 27, 1995.
Richard R. Lien,
Manager, Air Traffic Division, Western-Pacific Region.
[FR Doc. 95-27708 Filed 11-7-95; 8:45 am]
BILLING CODE 4910-13-M

Complete official Federal Register PDF

FR Doc. 95-27703 Petition for Rulemaking; Summary of Petitions Received; Dispositions of Petitions Issued
[Federal Register Volume 60, Number 216 (Wednesday, November 8, 1995)]
[Proposed Rules]
[Pages 56269-56270]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27703]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Chapter I

[Summary Notice No. PR-95-3]

Petition for Rulemaking; Summary of Petitions Received; 
Dispositions of Petitions Issued

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of petitions for rulemaking received and of dispositions 
of prior petitions.

-----------------------------------------------------------------------

SUMMARY: Pursuant to EPA's rulemaking provisions governing the 
application, processing, and disposition of petitions for rulemaking 
(14 CFR Part 11), this notice contains a summary of certain petitions 
requesting the initiation of rulemaking procedures for the amendment of 
specified provisions of the Federal Aviation Regulations and of denials 
or withdrawals of certain petitions previously received. The purpose of 
this notice is to improve the 

[[Page 56270]]
public's awareness of, and participation in, this aspect of FAA's 
regulatory activities. Neither publication of this notice nor the 
inclusion or omission of information in the summary is intended to 
affect the legal status of any petitions or its final disposition.

DATES: Comments on petitions received must identify the petition docket 
number involved and must be received January 8, 1996.

ADDRESSES: Send comments on any petition in triplicate to: Federal 
Aviation Administration, Office of the Chief Counsel, Attn: Rules 
Docket No. ________, 800 Independence Avenue, SW., Washington, DC 
20591.
    The petition, any comments received, and a copy of any final 
disposition are filed in the assigned regulatory docket and are 
available for examination in the Rules Docket (AGC-200), Room 915G, FAA 
Headquarters Building (FOB 10A), 800 Independence Ave., SW., 
Washington, DC 20591; telephone (202) 267-3132. Comments may also be 
sent electronically to the following internet address: 
[email protected].

FOR FURTHER INFORMATION CONTACT:
Mr. D. Michael Smith, Office of Rulemaking (ARM-1), Federal Aviation 
Administration, 800 Independence Avenue, SW., Washington, DC 20591; 
telephone (202) 267-7470.
    This notice is published pursuant to paragraphs (b) and (f) of 
Sec. 11.27 of Part 11 of the Federal Aviation Regulations (14 CFR Part 
11).

    Issued in Washington, DC on November 2, 1995.
Donald P. Byrne,
Assistant Chief Counsel for Regulations.

Petitions for Rulemaking

    Docket No.: 28301.
    Petitioner: Mr. David W. Galvin.
    Regulations Affected: 14 CFR 135.293(a) (6) and (7).
    Description of Rulechange Sought: To amend the requirements for 
initial and recurrent pilot testing in the area of meteorological 
knowledge, including procedures for recognizing and avoiding severe 
weather situations.
    Petitioner's Reason for the Request: The petitioner feels that 
subject testing would be better directed based on exact cause 
information stemming from recent tests concerning data recovered from 
weather-related accidents.

    Docket No.: 28347.
    Petitioner: King Schools, Inc.
    Sections of the FAR Affected: 14 CFR SFAR 51-1.
    Description of Rulechange Sought: To permit turbojet aircraft to 
operate under visual flight rules in the Los Angeles Special Flight 
Rules Area.
    Petitioner's Reason for the Request: The petitioner feels that such 
an amendment would result in enhanced safety and reduced cost for 
turbojet operators, reduce pollution, and conserve resources.

[FR Doc. 95-27703 Filed 11-7-95; 8:45 am]
BILLING CODE 4910-13-M

Complete official Federal Register PDF

FR Doc. 95-27700 Steel Erection Negotiated Rulemaking Advisory Committee
[Federal Register Volume 60, Number 216 (Wednesday, November 8, 1995)]
[Proposed Rules]
[Page 56279]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27700]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1926

Steel Erection Negotiated Rulemaking Advisory Committee

AGENCY: Occupational Safety and Health Administration (OSHA), Labor.

ACTION: Notice of committee meeting.

-----------------------------------------------------------------------

SUMMARY: Under the provisions of the Federal Advisory Committee Act 
(FACA), notice is hereby given of a meeting of the Steel Erection 
Negotiated Rulemaking Advisory Committee (SENRAC). Notice is also given 
of the location of the meeting. This meeting will be open to the 
public.

DATES: The meeting is scheduled for November 27-December 1, 1995. The 
meeting will begin at 1:30 p.m. on November 27th.

ADDRESSES: U.S. Department of Labor, DOL Academy, Room C-5320, Seminar 
Room 6, 200 Constitution Avenue, N.W., Washington, D.C. 20210.

FOR FURTHER INFORMATION CONTACT: Anne Cyr, Acting Director, Office of 
Information and Consumer Affairs, OSHA, U.S. Department of Labor, Room 
N-3647, 200 Constitution Avenue, N.W., Washington, D.C. 20210; 
telephone (202) 219-8151.

SUPPLEMENTARY INFORMATION: On May 11, 1994, OSHA announced that it had 
established the Steel Erection Negotiated Rulemaking Advisory Committee 
(SENRAC) (59 FR 24389) in accordance with the Federal Advisory 
Committee Act (FACA), the Negotiated Rulemaking Act of 1990 (NRA) and 
section 7(b) of the Occupational Safety and Health Act (OSH Act) to 
resolve issues associated with the development of a Notice of Proposed 
Rulemaking on Steel Erection. Appointees to the Committee include 
representatives from labor, industry, public interests and government 
agencies.
    SENRAC began negotiations in mid June, 1994, and has met nine times 
since. Initial meetings dealt with procedural matters, including 
schedules, agendas and the establishment of workgroups. The Committee 
established workgroups to address issues on Fall Protection, 
Construction Specifications and Scope. During subsequent meetings, 
foundations for negotiations were established and additional workgroups 
were formed to address more specific issues and develop a draft 
revision of subpart R.
    The Committee last met on June 27-29, 1995, where consensus was 
expected to be reached on a proposed revision of subpart R. The 
Committee did reach agreement on major issues and most of the elements 
of the draft revision, however, after much deliberation, they could not 
come to an agreement on fall protection. OSHA determined that since the 
Committee made significant progress on the fall protection issue and 
agreed to other very important improvements to the existing standard, 
it would allow the Committee to convene a workgroup to resolve the fall 
protection issue. On July 26, 1995, a workgroup met in Philadelphia and 
developed recommended fall protection requirements for steel erection. 
Also, on September 19-21, 1995, workgroups met to address Slippery 
Surfaces, Scope, Training and Site-Specific Erection Plans. These 
workgroup recommendations will be presented to the full SENRAC 
Committee at the November meeting where it is expected that consensus 
will be reached on the complete draft proposal and an agreement in 
principle will be signed by each member. OSHA will then complete the 
preamble and prepare the document in the proper Federal Register format 
for publication as a proposed rule.
    All interested parties are invited to attend the Committee meetings 
at the time and place indicated above. No advanced registration is 
required. Seating will be available to the public on a first-come, 
first-served basis. Persons with disabilities, who need special 
accommodations, should contact the Facilitator by November 20, 1995. 
During the meeting, members of the general public may informally 
request permission to address the Committee.
    Minutes of the meetings and materials prepared for the Committee 
will be available for public inspection at the OSHA Docket Office, N-
2625, 200 Constitution Ave., N.W., Washington, D.C. 20210; telephone 
(202) 219-7894. Copies of these materials may be obtained by sending a 
written request to the Facilitator.
    The Facilitator, Philip J. Harter, can be reached at Suite 404, 
2301 M Street, N.W., Washington, D.C. 20037; telephone (202) 887-1033, 
FAX (202) 887-1036.
    For an electronic copy of this Federal Register notice, contact the 
Labor News Bulletin Board, (202) 219-4784 (callers must pay any toll-
call charges. 300, 1200, 2400, 9600 or 14,400 BAUD; Parity: None; Data 
Bits=8; Stop Bit=1 Voice phone (202) 219-8831); or OSHA's Webpage on 
Internet at http://www.osha.gov/ and http://www.osha-slc.gov/. For news 
releases, fact sheets, and other documents, contact OSHA FAX at (900) 
555-3400 at $1.50 per minute.

    Authority: This document was prepared under the direction of 
Joseph A. Dear, Assistant Secretary of Labor for Occupational Safety 
and Health, U.S. Department of Labor, 200 Constitution Avenue, N.W., 
Washington, D.C. 20210, pursuant to section 3 of the Negotiated 
Rulemaking Act of 1990, 104 Stat. 4969, Title 5 U.S.C. 561 et seq.; 
and Section 7(b) of the Occupational Safety and Health Act of 1970, 
84 Stat. 1597, Title 29 U.S.C. 656.

    Signed at Washington, D.C., this 2 day of November, 1995.
Joseph A. Dear,
Assistant Secretary of Labor.
[FR Doc. 95-27700 Filed 11-7-95; 8:45 am]
BILLING CODE 4510-26-P

Complete official Federal Register PDF

FR Doc. 95-27698 Clean Air Act Proposed Approval or, in the Alternative, Proposed Interim Approval of Operating Permits Program; Hamilton County, Tennessee
[Federal Register Volume 60, Number 216 (Wednesday, November 8, 1995)]
[Proposed Rules]
[Pages 56285-56289]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27698]

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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70

[TN-CHAT-95-01; FRL-5328-1]

Clean Air Act Proposed Approval or, in the Alternative, Proposed 
Interim Approval of Operating Permits Program; Hamilton County, 
Tennessee

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed approval.

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SUMMARY: EPA proposes full approval of the operating permit program 
submitted by the State of Tennessee on behalf of the Chattanooga-
Hamilton County Air Pollution Control Bureau (``CHCAPCB'' or ``the 
County'') if certain changes are made prior to final EPA action on this 
program. Alternatively, EPA proposes to grant interim approval if the 
necessary changes are not made. CHCAPCB's operating permit program was 
submitted for the purpose of complying with Federal requirements which 
mandate that states develop, and submit to EPA, programs for issuing 
operating permits to all major stationary sources, and to certain other 
sources in the state.

DATES: Comments on this proposed action must be received in writing by 
December 8, 1995.

ADDRESSES: Written comments on this action should be addressed to Carla 
E. Pierce, Chief, Air Toxics Unit/Title V Program Development Team, Air 
Programs Branch, at the EPA Region 4 office listed below. Copies of 
CHCAPCB's submittal and other supporting information used in developing 
the proposed full/interim approval are available for inspection during 
normal business hours at the following location: U.S. Environmental 
Protection Agency, Region 4, third floor, 345 Courtland Street NE, 
Atlanta, GA 30365.

FOR FURTHER INFORMATION CONTACT: Kelly Fortin, Title V Program 
Development Team, Air Programs Branch, Air Pesticides & Toxics 
Management Division, U.S. Environmental Protection Agency, Region 4, 
345 Courtland Street NE, Atlanta, GA 30365, (404) 347-3555, Ext. 4223.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

A. Introduction

    As required under title V of the Clean Air Act (``the Act'') as 
amended by the 1990 Clean Air Act Amendments, EPA promulgated rules on 
July 21, 1992 (57 FR 32250) that define the minimum elements of an 
approvable state operating permit program and the corresponding 
standards and procedures by which EPA will approve, oversee, and 
withdraw approval of state and local operating permit programs. These 
rules are codified at 40 Code of Federal Regulations (CFR) part 70. 
Title V and part 70 require that states develop, and submit to EPA, 
programs for issuing operating permits to all major stationary sources 
and to certain other sources.
    The Act requires states to develop and submit these programs to EPA 
by November 15, 1993, and EPA to approve to disapprove each program 
within one year after receiving the submittal. If the state's 
submission is materially changed 

[[Page 56286]]
during the one-year review period, 40 CFR 70.4(e)(2) allows EPA to 
extend the review period for no more than one year following receipt of 
the additional materials.
    EPA reviews state operating permit programs pursuant to section 502 
of the Act and 40 CFR part 70, 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 November 15, 1995, or by the end of an interim program, it 
must establish and implement a Federal operating permit program.

II. Proposed Action and Implications

A. Analysis of State Submission

    EPA has concluded that the operating permit program submitted by 
the State of Tennessee on behalf of the Chattanooga-Hamilton County Air 
Pollution Control Board substantially meets the requirements of title V 
and part 70, and proposes to grant interim approval to the program or, 
in the alternative, to grant full approval to the program if specified 
changes are made, as will be discussed below. For detailed information 
on the analysis of the State's submission, please refer to the 
Technical Support Document (TSD) contained in the docket at the address 
noted above.
1. Support Materials
    Pursuant to section 502(d) of the Act, each state must develop and 
submit to the Administrator an operating permit program under state or 
local law or under an interstate compact meeting the requirements of 
title V of the Act. On November 22, 1993, EPA received the title V 
operating permit program submitted by the State of Tennessee on behalf 
of the Chattanooga-Hamilton County Air Pollution Control Board. The 
State of Tennessee Department of Environment and Conservation 
requested, under signature of the Tennessee Governor's designee, 
approval of the CHCAPCB's operating permit program. The State 
supplemented the program submittal, on behalf of the County, on January 
23, 1995, February 24, 1995, and October 13, 1995.
    The program submittal includes a legal opinion from independent 
legal council for the Chattanooga-Hamilton County Air Pollution Control 
Board demonstrating adequate legal authority for the implementation and 
enforcement of the local part 70 program. The program submittal 
contains a description of how the CHCAPCB intends to implement the 
program consistent with the requirements of the Clean Air Act 
Amendments of 1990 (42 U.S.C. 7401-7671q) and 40 CFR part 70. The 
program submittal also includes supporting documentation, such as 
evidence of the procedurally correct adoption of the permitting rules, 
permit application forms, and a detailed enforcement agreement with 
EPA. The submittal was determined to be administratively complete on 
January 24, 1995.
2. Regulations and Program Implementation
    The Chattanooga-Hamilton County Air Pollution Control Board, 
operating under a certificate of exemption pursuant to Tennessee Code 
Annotated, Section 68-201-115, has authority to administer the 
operating permits program in all areas of Hamilton County, Tennessee, 
with the exception of Indian reservations and tribal lands. The CHCAPCB 
operating permits program is implemented and enforced through: (1) the 
Chattanooga Air Pollution Control Ordinance (within the incorporated 
municipality of the City of Chattanooga, Tennessee); (2) the Hamilton 
County Air Pollution Control regulation (in the unincorporated areas of 
Hamilton County, Tennessee); and (3) air pollution control ordinances 
prepared for and enacted in the incorporated municipalities of East 
Ridge, Red Bank, Soddy-Daisy, Signal Mountain, Lakesite, Walden, 
Collegedale, Lookout Mountain, and Ridgeside.
    EPA has determined that the above regulations, constituting the 
Chattanooga-Hamilton County operating permits program, substantially 
meet the requirements of 40 CFR 70.2 and 70.3 for applicability; 40 CFR 
70.4, 70.5, and 70.6 for permit content (including operational 
flexibility); 40 CFR 70.7 and 70.8 for permit processing requirements 
(including public participation and permit modifications); and 40 CFR 
70.11 for requirements for enforcement authority. The CHCAPCB's 
operating permit program closely follows the federal part 70 
regulations. The TSD contains a detailed analysis of CHCAPCB's program 
and references the sections of the applicable local regulations that 
meet the required elements of an approvable program under 40 CFR part 
70.
    Under part 70, a state must request approval of, and EPA may 
approve as part of that state or local program, any activities or 
emission levels that the state wishes to consider insignificant. Part 
70, however, does not establish emissions thresholds for insignificant 
activities. EPA has accepted emissions thresholds of five tons per year 
for criteria pollutants, and the lesser of 1000 pounds per year or 
section 112(g) de minimis levels for hazardous air pollutants, as 
reasonable.
    Section 70.4(b)(2) requires states to include in their part 70 
programs any criteria used to determine insignificant activities or 
emission levels for the purposes of determining complete applications. 
Section 70.5(c) states that an application for a part 70 permit may not 
omit information needed to determine the applicability of, or to 
impose, any applicable requirement, or to evaluate appropriate fee 
amounts.
    Section 7(c)(11) of the Hamilton County Regulation (section 4-56.11 
of the Chattanooga Code) lists certain units or activities that, due to 
de minimis emission levels, need not be included in a part 70 permit 
application. CHCAPCB believes that these activities generally have a 
potential to emit below 5 tons per year of criteria or regulated 
hazardous air pollutants without size or production rate limitations. 
Section 7(c)(12) of the Hamilton County Regulation (section 4-56.12 of 
the Chattanooga Code) lists activities that are deemed to be 
insignificant due to size and production rate and that must be listed 
in a part 70 permit application but need not have emissions related 
information reported. CHCAPCB believes these activities have a 
potential to emit of less that 5 tons per year of any criteria or 
regulated hazardous air pollutant. CHCAPCB's regulations specify that 
an application may not omit information needed to determine the 
applicability of, or to impose, any applicable requirement, or to 
evaluate the fee amount required.
    CHCAPCB specified that the listed insignificant activities are 
expected to have emissions below five tons per year of criteria and 
regulated hazardous air pollutants. As stated above, EPA has accepted 
emissions thresholds of the lesser of 1000 pounds per year or section 
112(g) de minimis levels for hazardous air pollutants. In addition, 
while CHCAPCB specified the 5 ton per year threshold as the criteria 
used to develop the insignificant activities list, no emission 
thresholds were specified in the regulations. The submittal also did 
not include any information on the estimated level of emissions from 
activities, nor a demonstration that these activities are not likely to 
be subject to an applicable requirement.
    EPA has reviewed CHCAPCB's significant activities lists and is 
concerned that several of the activities 

[[Page 56287]]
may conflict with applicable requirements and may not have emissions 
levels that are sufficiently below the applicability thresholds to 
assure that no unit potentially subject to an applicable requirement is 
left off a title V application, especially with respect to emissions of 
hazardous air pollutants. EPA has identified these activities of 
concern in the technical support document available in the docket for 
this rulemaking.
    As a condition of full approval, CHCAPCB must remove, clarify, or 
limit the activities in question and/or document that they are not 
potentially subject to an applicable requirement. In revising the 
insignificant activities lists, CHCAPCB must consider emissions of all 
regulated air pollutants, not just criteria and hazardous air 
pollutants. In addition, CHCAPCB must establish emission threshold 
criteria that will not conflict with section 112(g) de minimis levels 
for hazardous air pollutants. As stated above, EPA has accepted 
emissions thresholds of the lesser of 1000 pounds per year or section 
112(g) de minimis levels, as reasonable.
    Part 70 requires prompt reporting of deviations from the permit 
requirements. Section 70.6(a)(3)(iii)(B) requires the permitting 
authority to define ``prompt'' in relation to the applicable 
requirements and type of deviation likely to occur. Although the permit 
program regulations should define ``prompt'' for purposes of 
administrative efficiency and clarity, an acceptable alternative is to 
define ``prompt'' in each individual permit. EPA believes that 
``prompt'' should generally be defined as requiring reporting within 
two to ten days of the deviation. Two to ten days is sufficient time in 
most cases to protect public health and safety as well as to provide a 
forewarning of potential problems. For sources with a low level of 
excess emissions, a longer time period may be acceptable. However, 
prompt reporting must be more frequent than the semiannual reporting 
requirement, given this is a distinct reporting obligation under 
section 70.6(a)(3)(iii)(A). Where ``prompt'' is defined in the 
individual permit but not in the program regulations, EPA may veto 
permits that do not contain sufficiently prompt reporting of 
deviations. CHCAPCB has not defined ``prompt'' in its program, but 
rather intends to require the prompt reporting of deviations in the 
individual permits.
    The Chattanooga-Hamilton County Air Pollution Control Board has the 
authority to issue variances from requirements imposed by local law. 
Section 4-21 of the Chattanooga ordinance, and the corresponding 
chapters of the Hamilton County and local municipalities' regulations, 
allow CHCAPCB discretion to grant relief from compliance with local 
requirements for up to one year. EPA regards this provision as wholly 
external to the program submitted for approval under part 70, and 
consequently proposes to take no action on this provision of the local 
program.
    EPA has no authority to approve provisions of local law, such as 
the variance provision referred to, that are inconsistent with title V. 
EPA does not recognize the ability of a permitting authority to grant 
relief from the duty to comply with a Federally enforceable part 70 
permit, except where such relief is granted through the procedures 
allowed by part 70. A part 70 permit may be issued or revised 
(consistent with part 70 permitting procedures) to incorporate those 
terms of a variance that are consistent with applicable requirements. A 
part 70 permit may also incorporate, via part 70 permit issuance or 
modification procedures, the schedule of compliance set forth in a 
variance. However, EPA reserves the right to pursue enforcement of 
applicable requirements notwithstanding the existence of a compliance 
schedule in a permit to operate. This is consistent with 40 CFR 
70.5(c)(8)(iii)(C), which states that a schedule of compliance ``shall 
be supplemental to, and shall not sanction noncompliance with, the 
applicable requirements on which it is based.''
3. Permit Fee Demonstration
    Section 502(b)(3) of the Act requires each permitting authority to 
collect fees sufficient to cover all reasonable direct and indirect 
costs necessary for the development and administration of its title V 
operating permit program. Each title V program submittal 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 is presumed, for program approval, to be 
sufficient to cover all reasonable program costs and is thus referred 
to as the ``presumptive minimum.''
    The Chattanooga-Hamilton County Air Pollution Control Board has 
elected to adopt a presumptive minimum fee of $29.32 per ton for each 
annual accounting period (adjusted by the CPI as required). The fee 
demonstration showed that the fees collected will adequately cover the 
anticipated costs of the operating permit program. The program 
activities that will constitute CHCAPCB's title V operating permit 
program are consistent with the activities described in 40 CFR 
70.9(b)(1). Section 4-60 of the Chattanooga Code provides that an 
annual accounting of the operating permit program will be performed to 
ascertain whether the annual fees collected are sufficient to support 
the direct and indirect costs of the title V program.
4. Provisions Implementing the Requirements of Other Titles of the Act
    a. Authority for Section 112 Implementation. In its program 
submittal, Chattanooga-Hamilton County demonstrates adequate legal 
authority to implement and enforce all section 112 requirements through 
the title V permit. This legal authority is contained in regulatory 
provisions defining ``applicable requirements'' and requiring each 
permit to incorporate conditions that assure compliance with all 
applicable requirements. In addition, this definition includes language 
that clarifies that in the period after federal adoption, and before 
local adoption, the part 70 permit will specify that the source is 
subject to the cited federal standard. EPA is interpreting the above 
legal authority to mean that Chattanooga-Hamilton County is able to 
carry out all section 112 activities with respect to part 70. For 
further discussion, please refer to TSD accompanying this action and 
the April 13, 1993 guidance memorandum entitled, ``Title V Program 
Approval Criteria for Section 112 Activities,'' signed by John Seitz.
    b. Implementation of Section 112(g) Upon Program Approval. EPA 
issued an interpretive notice on February 14, 1995 (60 FR 8333), which 
outlines EPA's revised interpretation of section 112(g) applicability. 
The notice postpones the effective date of section 112(g) until after 
EPA has promulgated a rule addressing that provision. The notice sets 
forth in detail the rationale for the revised interpretation.
    The section 112(g) interpretative 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), Chattanooga-Hamilton County 
must have a Federally enforceable mechanism for implementing section 
112(g) during the period between promulgation of the 

[[Page 56288]]
Federal section 112(g) rule and adoption of implementing local 
regulations.
    EPA is aware that Chattanooga-Hamilton County lacks a program 
designed specifically to implement section 112(g). However, 
Chattanooga-Hamilton County does have a preconstruction review program 
that can serve as an adequate implementation vehicle during the 
transition period because it would allow the County to select control 
measures that would meet the maximum achievable control technology 
(MACT), as defined in section 112, and incorporate these measures into 
a Federally enforceable preconstruction permit.
    For this reason, EPA proposes to approve the use of Chattanooga-
Hamilton County's preconstruction review programs found in Section 4-8 
of the Chattanooga Code, and the corresponding sections of the Hamilton 
County and local municipalities' regulations, under the authority of 
title V and part 70, solely for the purpose of implementing section 
112(g) to the extent necessary during the transition period between 
section 112(g) promulgation and adoption of a local rule implementing 
EPA's section 112(g) regulations. Although section 112(l) generally 
provides authority for approval of state and local air programs to 
implement section 112(g), title V and section 112(g) provide for this 
limited approval because of the direct linkage between the 
implementation of section 112(g) and title V. The scope of this 
approval is narrowly limited to section 112(g) and does not confer or 
imply approval for purpose of any other provision under the Act (e.g., 
section 110). This approval will be without effect if EPA decides in 
the final section 112(g) rule that sources are not subject to the 
requirements of the rule until local regulations are adopted. The 
duration of this approval is limited to 18 months following 
promulgation by EPA of the section 112(g) rule to provide adequate time 
for Chattanooga, Hamilton County, and the affected municipalities to 
adopt regulations consistent with the Federal requirements.
    c. Program for Delegation of Section 112 Standards as Promulgated. 
The requirements for part 70 program approval, specified in 40 CFR 
70.4(b), encompass section 112(1)(5) requirements for approval of a 
state program for delegation of section 112 standards promulgated by 
EPA as they apply to title V sources. Section 112(1)(5) requires that 
the State's program contain adequate authorities, adequate resources 
for implementation, and an expeditious compliance schedule, which are 
also requirements under part 70. Therefore, EPA also proposes to grant 
approval, under section 112(1)(5) and 40 CFR 63.91, of Chattanooga-
Hamilton County's program for receiving delegation of section 112 
standards that are unchanged from the Federal standards as promulgated 
and to delegate existing standards and programs under 40 CFR parts 61 
and 63 for part 70 sources and non-part 70 sources. This program for 
delegation applies to both existing and future standards, and to part 
70 and non-part 70 sources. CHCAPCB has informed EPA that it intends to 
accept delegation of section 112 standards through incorporation by 
reference. The details of the CHCAPCB's delegation mechanism is set 
forth in a letter to EPA, dated October 19, 1995, and is contained in 
the docket for this action
    d. Commitment to Implement Title IV of the Act. On March 29, 1995, 
EPA published a Federal Register Notice (60 FR 16127) notifying 
affected sources that the CHCAPCB's acid rain program had been 
established and that CHCAPCB's regulations are acceptable for the 
purposes of administering an acid rain program. Chattanooga-Hamilton 
County has committed to incorporate by reference, following 
promulgation by EPA, any new or revised provision of 40 CFR part 72 or 
provisions implementing sections 407 and 410 of the Act.

B. Proposed Actions

1. Full Approval
    The EPA proposes to fully approve the operating permits program 
submitted to the EPA by the State of Tennessee of behalf of the 
Chattanooga-Hamilton County Air Pollution Control Board on November 22, 
1995, if certain changes are made to the program and submitted to EPA 
prior to EPA's final action on this proposal. As a condition of full 
approval, CHCAPCB must remove, clarify, or limit certain insignificant 
activities and/or document that they are not potentially subject to an 
applicable requirement. EPA has determined that the program is 
otherwise adequate to meet the minimum elements of a local operating 
permits program as specified in 40 CFR part 70.
2. Interim Approval
    EPA is proposing to grant interim approval to the operating permits 
program under 40 CFR 70.4(d) if the changes required for full approval, 
as described above, are not made prior to final promulgation of this 
rulemaking. EPA can grant interim approval because CHCAPCB's permit 
program substantially meets the approval process and requirements of 
part 70, as discussed in section II(A) of this notice. The problems 
noted above will not prevent CHCAPCB for issuing permits that are 
consistent with part 70 on an interim basis.
    If EPA grants interim approval to CHCAPCB, the interim approval 
would extend for two years following the effective date of final 
interim approval, and could not be renewed. During the interim approval 
period, Hamilton County would not be subject to sanctions, and EPA 
would not be obligated to promulgate, administer, and enforce a Federal 
operating permit program for the County. Permits issued under a program 
with interim approval are fully effective with respect to part 70 and 
the three-year time period for processing the initial permit 
applications will begin upon the effective date of final interim 
approval.
    Following the granting of final interim approval, if the 
Chattanooga-Hamilton County Air Pollution Control Board fails to submit 
a complete corrective program for full approval by the date six months 
before expiration of the interim approval, EPA will start an 18-month 
clock for mandatory sanctions. If the Chattanooga-Hamilton County Air 
Pollution Control Board then fails to submit a corrective program that 
EPA finds complete before the expiration of that 18-month period, EPA 
is required to apply one of the sanctions in section 179(b) of the Act, 
which will remain in effect until EPA determines that the Chattanooga-
Hamilton County Air Pollution Control Board has corrected the 
deficiency by submitting a complete corrective program.
3. Program for Straight Delegation of Section 112 Standards
    As discussed previously in section II.A.4.b., EPA proposes to 
approve Chattanooga-Hamilton County's preconstruction review program, 
under the authority of title V and part 70 solely for the purpose of 
implementing section 112(g) to the extent necessary during the 
transition period between 112(g) promulgation and adoption of a local 
rule implementing EPA's section 112(g) regulations.
    In addition, as discussed in section II.A.4.c., EPA proposes to 
grant approval under section 112(1)(5) and 40 CFR 63.91 to CHCAPCB for 
receiving delegation of section 112 standards that are unchanged from 
Federal standards as promulgated. EPA also proposes to delegate all 
existing standards under 40 

[[Page 56289]]
CFR part 61 and 63 both part 70 and non-part 70 sources.
4. Other Implications
    The scope of Chattanooga-Hamilton County's part 70 program that EPA 
proposes to approve, or interimly approve in the alternative, in this 
notice would apply to all part 70 sources (as defined in the approved 
program) within Hamilton County, except any sources of air pollution 
over which an Indian Tribe has jurisdiction. See, e.g., 59 FR 55813, 
55815-18 (Nov. 9, 1994). The term ``Indian Tribe'' is defined under the 
Act as ``any Indian tribe, band, nation, or other organized group or 
community, including any Alaska Native village, which is Federally 
recognized as eligible for the special programs and services provided 
by the United States to Indians because of their status as Indians.'' 
See section 302(r) of the CAA; see also 59 FR 43956, 43962 (Aug. 24, 
1994); 58 FR 54364 (Oct. 21, 1993).

III. Administrative Requirements

A. Request for Public Comments

    EPA requests comments on all aspects of this proposed full/interim 
approval. Copies of CHCAPCB's submittal and other information relied 
upon for the proposed alternatives of full approval and interim 
approval are contained in docket number TN-CHAT-95-01, maintained at 
the EPA Regional Office. The docket is an organized and complete file 
of all the information submitted to, or otherwise considered by, EPA in 
the development of this proposed full/interim approval. The principal 
purposes of the docket are:
    (1) to allow interested parties a means to identify and locate 
documents so that they can effectively participate in the approval 
process; and
    (2) to serve as the record in case of judicial review. EPA will 
consider any comments received by December 8, 1995.

B. Executive Order 12866

    The Office of Management and Budget has exempted this action from 
Executive Order 12866 review.

C. Regulatory Flexibility Act

    EPA's actions under section 502 of the Act do not create any new 
requirements, but simply address operating permit 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 Reform Act of 1995

    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 action promulgated today does 
not include a Federal mandate that may result in estimated costs of 
$100 million or more to State, local, or tribal governments in the 
aggregate, or to the private sector. This 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 in 40 CFR Part 70

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Operating permits, 
and Reporting and recordkeeping requirements.

    Authority: 42 U.S.C. 7401-7671q.

    Dated: October 31, 1995.
Patrick M. Tobin,
Acting Regional Administrator.
[FR Doc. 95-27698 Filed 11-7-95; 8:45 am]
BILLING CODE 6560-50-M

Complete official Federal Register PDF

FR Doc. 95-27697 Clean Air Act Proposed Full Approval, or in the Alternative, Proposed Interim Approval of Operating Permits Program: Knox County Department of Air Pollution Control, Knox County, Tennessee
[Federal Register Volume 60, Number 216 (Wednesday, November 8, 1995)]
[Proposed Rules]
[Pages 56281-56285]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27697]

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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70

[TN-KNOX-95-01; FRL-5327-9]

Clean Air Act Proposed Full Approval, or in the Alternative, 
Proposed Interim Approval of Operating Permits Program: Knox County 
Department of Air Pollution Control, Knox County, Tennessee

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed full approval, or proposed interim approval in the 
alternative.

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SUMMARY: The EPA proposes full approval of the operating permits 
program submitted by the Department of Air Pollution Control located in 
the geographic area of Knox County, Tennessee. Alternatively, EPA 
proposes to grant interim approval if specified changes are not adopted 
prior to final promulgation of this rulemaking. Knox County's program 
was submitted for the purpose of complying with Federal requirements 
which mandate that states and local agencies develop, and submit to 
EPA, programs for issuing operating permits to all major stationary 
sources, and to certain other sources.

DATES: Comments on this proposed action must be received in writing by 
December 8, 1995.

ADDRESSES: Written comments on this action should be addressed to Carla 
E. Pierce, Chief, Air Toxics Unit/Title V Program Development Team, Air 
Programs Branch, at the EPA Region 4 office listed below. Copies of the 
Knox County submittal and other supporting information used in 
developing the proposed interim approval are available for inspection 
during normal business hours at the following location: Environmental 
Protection Agency, Region 4 Air Programs Branch, 345 Courtland Street, 
NE, Atlanta, Georgia 30365.

FOR FURTHER INFORMATION CONTACT: Gracy R. Danois, Title V Development 
Team, Air Programs Branch, Air, Pesticides & Toxics Management 
Division, Region 4 Environmental Protection Agency, 345 Courtland 
Street, NE, Atlanta, Georgia 30365. The telephone number is 404/347-
3555, extension 4150.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

A. Introduction

    As required under title V of the 1990 Clean Air Act (``the Act'') 
as amended by the 1990 Clean Air Act Amendments, EPA has promulgated 
rules on July 21, 1992 (57 FR 32250) which define the minimum elements 
of an approvable State/Local operating permits program and the 
corresponding standards and procedures by which the EPA will approve, 
oversee, and withdraw approval of state or local agency operating 
permits programs. These rules are codified at 40 Code of Federal 
Regulations (CFR) part 70. Title V and part 70 require that states or 
authorized local agencies develop, and submit to EPA, programs for 
issuing operating permits to all major stationary sources and to 
certain other sources.
    The Act requires that States or authorized local agencies develop 
and submit these programs to EPA by November 15, 1993, and EPA to 
approve or disapprove each program within 1 year after receiving the 
submittal. If the State or local agency submission is materially 
changed during the one-year review period, 40 CFR 70.4(e)(2) allows EPA 
to extend the review period for no more than one year following receipt 
of the additional materials. Knox County provided EPA with additional 
materials in supplemental submittals dated August 24, 1994, January 6, 
1995, January 19, 1995, February 6, 1995, May 23, 1995, and September 
18 and 25, 1995. Because these supplements materially changed the 
County's submittal, EPA has extended the one-year review period.
    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 2 years. If EPA has not fully approved a 
program by November 15, 1995, or by the end of an interim program, it 
must establish and implement a Federal operating permits program for 
that State or local agency.

II. Proposed Action and Implications

A. Analysis of Knox County's Submission

    The Department of Air Pollution Control has requested full approval 
of its title V operating permits program, which covers the geographic 
area of Knox County within the State of Tennessee. EPA has concluded 
that the operating permits program submitted by the Tennessee 
Department of Environment and Conservation (TDEC) on behalf of the Knox 
County Department of Air Pollution Control (``Knox County'' or ``the 
County'') meets the requirements of title V and part 70, and proposes 
to grant full/interim approval to the program. For detailed information 
on the analysis of the Knox County submission, please refer to the 
Technical Support Document (TSD) contained in the docket at the address 
noted above.
1. Program Support Materials
    Pursuant to section 502(d) of the Act, each state or local agency 
must develop and submit to the Administrator an operating permits 
program under State or local law or under an interstate compact meeting 
the requirements of title V of the Act. On November 12, 1993, the TDEC 
requested, under the signature of the Tennessee Governor's designee, 
approval of the Knox County operating permit program with full 
authority to administer the program in all areas of the County. The 
County has 

[[Page 56282]]
delegated authority to implement part 70 under Tennessee law (Tennessee 
Code Annotated (TCA), section 68-25-115). The TDEC supplemented the 
program submittal on August 24, 1994, January 6 and 19, 1995, February 
6, 1995, and May 23, 1995.
    The Knox County submittal addresses, in section II entitled 
``Complete Program Description,'' the requirements of 40 CFR 70.4(b)(1) 
by describing how the County intends to carry out its responsibilities 
under the part 70 regulations. EPA has deemed the program description 
to be sufficient for meeting the requirements of 40 CFR 70.4(b)(1).
    Pursuant to 40 CFR 70.4(b)(3), each state or local authority is 
required to submit a legal opinion from the Attorney General (or the 
attorney for the state or local air pollution control agency that has 
independent legal counsel) demonstrating adequate authority to carry 
out all aspects of the title V operating permits program. The Knox 
County Law Director submitted a Legal Opinion demonstrating adequate 
legal authority as required by Federal law and regulation.
    Section 70.4(b)(4) requires the submission of relevant permitting 
program documentation not contained in the regulations, such as permit 
application forms, permit forms, and relevant guidance to assist in the 
County's implementation of its permit program. Section V of the Knox 
County submittal includes the permit application forms, permit forms, 
and relevant guidance that the County intends to use for the 
implementation of its permit program. EPA has determined that the 
application forms meet the requirements of 40 CFR 70.5(c).
2. Regulations and Program Implementation
    Knox County developed section 25.70 of the Knox County Air 
Pollution Control (K.C.A.P.C.) Regulations for the implementation of 
the substantive requirements of 40 CFR part 70. The County also 
incorporated K.C.A.P.C. sections 25.8, 30.0, 35.3, and 49.0 to 
implement other part 70 requirements. These rules, and several other 
rules and statutes providing for the County's permitting and 
administrative actions, were submitted by Knox County with sufficient 
evidence of procedurally correct adoption as required by 40 CFR 
70.4(b)(2).
    The Knox County program, in K.C.A.P.C. section 25.70.3, meets the 
requirements of 40 CFR 70.2 and 70.3 with regard to applicability. 
K.C.A.P.C. sections 25.70.4, 25.70.5, and 25.70.6, substantially meet 
the requirements of 40 CFR 70.4, 70.5, and 70.6 for permit content 
(including operational flexibility) and complete permit application 
forms. In addition, the County's program provides for off-permit 
changes as described in 40 CFR 70.4(b)(14) in K.C.A.P.C. section 
20.70.15. However, K.C.A.P.C. sections 25.70.5(c)(7) and 25.70.7(e)(2) 
do not reference emissions trading as required by 40 CFR 
70.4(b)(12)(iii), 70.5(c)(7), and 70.6(a)(10). As a condition of full 
approval, Knox County has committed to rectify this lack of flexibility 
on emissions trading procedures. In a letter dated September 25, 1995, 
the County has proposed to incorporate the following language in 
K.C.A.P.C. section 25.70.7(e)(2)(i)(B): ``Notwithstanding paragraphs 
(e)(2)(i)(A) and (e)(3)(i) of this section, minor permit modification 
procedures may be used for permit modifications involving the use of 
economic incentives, marketable permits, emissions trading, and other 
similar approaches, to the extent that such minor permit modification 
procedures are explicitly provided for in an applicable implementation 
plan or in applicable requirements promulgated by EPA. The Department 
may establish additional requirements for such permit conditions.''
    Section 70.4(b)(2) requires States and local agencies to include in 
their part 70 programs any criteria used to determine insignificant 
activities or emission levels for the purpose of determining complete 
applications. Section 70.5(c) states that an application for a part 70 
permit may not omit information needed to determine the applicability 
of, or to impose, any applicable requirement, or to evaluate 
appropriate fee amounts. Section 70.5(c) also states that EPA may 
approve, as part of a state program, a list of insignificant activities 
and emissions levels which need not be included in permit applications. 
Under part 70, a state or local agency must request and EPA may approve 
as part of that state's or local agency's program any activities or 
emission levels that they wish to consider insignificant. Part 70, 
however, does not establish emissions thresholds for insignificant 
activities. EPA has accepted emissions thresholds of five tons per year 
for criteria pollutants, and the lesser of 1000 pounds per year or 
section 112(g) de minimis levels for HAP, as reasonable.
    The regulations addressing the insignificant activities list of 
Knox County can be found in K.C.A.P.C. section 25.70.12. This section 
provides for the exemption of certain emissions units, or pollutant-
emitting activities from the title V permitting process. As required by 
40 CFR 70.5(c), the County included language in this section to ensure 
that information needed to determine the applicability of, or to impose 
any applicable requirement, or to collect any permit fees is not 
excluded from the application.
    Part 70 requires prompt reporting of deviations from the permit 
requirements. Section 70.6(a)(3)(iii)(B) requires the permitting 
authority to define ``prompt'' in relation to the degree and type of 
deviation likely to occur and the applicable requirements. Although the 
permit program regulations should define ``prompt'' for purposes of 
administrative efficiency and clarity, an acceptable alternative is to 
define ``prompt'' in each individual permit. EPA believes that 
``prompt'' should generally be defined as requiring reporting within 
two to ten days of the deviation. Two to ten days is sufficient time in 
most cases to protect public health and safety as well as to provide a 
forewarning of potential problems. For sources with a low level of 
excess emissions, a longer time period may be acceptable. However, 
prompt reporting must be more frequent than the semiannual reporting 
requirement, given this is a distinct reporting obligation under 
section 70.6(a)(3)(iii)(A). Where ``prompt'' is defined in the 
individual permit but not in the program regulations, EPA may veto 
permits that do not contain sufficiently prompt reporting of 
deviations. Knox County has not defined ``prompt'' in its program with 
respect to the reporting of deviations. The contents of K.C.A.P.C. 
section 25.70.6(a)(3)(iii)(B) requires ``prompt reporting of deviations 
from permit requirements . . .'', but does not specify what will be 
considered as prompt reporting. In a letter dated September 25, 1995, 
Knox County committed to include the following sentence in K.C.A.P.C. 
section 25.70.6(a)(3)(iii)(B): ``The term ``prompt'', in relation to 
the degree and type of permit deviations likely to occur, will be 
defined within each permit according to an EPA approved protocol, such 
as the EPA/Local Implementation Agreement.''
    Knox County has the authority to issue variances from requirements 
imposed by State law under K.C.A.P.C. section 28.0. EPA regards this 
provision as wholly external to the program submitted for approval 
under part 70, and consequently proposes to take no action on this 
provision of State law. EPA has no authority to approve provisions of 
state law, such as the variance provision referred to, that are 
inconsistent with title V. EPA does not 

[[Page 56283]]
recognize the ability of a permitting authority to grant relief from 
the duty to comply with a Federally enforceable part 70 permit, except 
where such relief is granted through the procedures allowed by part 70. 
A part 70 permit may be issued or revised (consistent with part 70 
permitting procedures) to incorporate those terms of a variance that 
are consistent with applicable requirements. A part 70 permit may also 
incorporate, via part 70 permit issuance or modification procedures, 
the schedule of compliance set forth in a variance. However, EPA 
reserves the right to pursue enforcement of applicable requirements 
notwithstanding the existence of a compliance schedule in a permit to 
operate. This is consistent with 40 CFR 70.5(c)(8)(iii)(C), which 
states that a schedule of compliance ``shall be supplemental to, and 
shall not sanction noncompliance with, the applicable requirements on 
which it is based.''
    Knox County's program, in K.C.A.P.C. section 25.70.7, meets the 
permit processing requirements (including public participation and 
minor permit modifications) of 40 CFR 70.7. The permit review by EPA 
and affected States requirements of 40 CFR 70.8 are addressed in 
K.C.A.P.C. section 25.70.8.
    In K.C.A.P.C. section 30.0, and in T.C.A. sections 68-210-112 and 
68-210-116, the County substantially addresses the requirements of 40 
CFR 70.11 with respect to enforcement authority. In response to the 
comments made by EPA during its substantial review of the County's 
program, on September 18, 1995, Knox County proposed revisions to the 
enforcement portion of its program submittal. Such changes are outline 
below.
    In the area of civil penalty assessment, K.C.A.P.C. section 30.1(D) 
describes that the Director has the authority to assess civil penalties 
against any person. However, this item does not specify that the 
maximum fine shall be no less than $10,000 per day per violation, as 
required by 40 CFR 70.11(a)(3). Knox County has proposed a revision to 
K.C.A.P.C. section 30.1(D) to specify that the maximum fine shall be no 
less than $10,000 per day per violation.
    Knox County does not have authority to restrain or enjoin 
immediately and effectively any person by order or by suit in court 
from engaging in any activity in violation of a permit that is 
presenting an imminent and substantial endangerment to the public 
health or welfare of the environment. The County has proposed to 
incorporate in section 30.1(G) the appropriate authority to satisfy the 
requirements of 40 C.F.R. 70.11(a)(1). Specifically, the provision will 
read as follows: ``The Director has the authority to restrain or enjoin 
immediately and effectively any person, by order or by suit in court, 
from engaging in any activity in violation of a permit or the Knox 
County Air Pollution Control Regulations that is presenting an imminent 
and substantial endangerment to the public health or welfare, or the 
environment.''
    The contents of K.C.A.P.C. section 30.1(F) give the Director in 
Knox County authority to ``cause to be instituted a civil action in any 
court of competent jurisdiction for injunctive relief to prevent 
violation of any regulation promulgated by the Board or any order duly 
issued by the Director . . .''. It is not clear whether this can be 
done ``without the necessity of a prior revocation of a permit'' as 
required by 40 CFR 70.11(a)(2). As a condition of full approval, Knox 
County has committed to incorporate in section 30.1(F) the following 
statement: ``Such actions may be taken by the Director without the 
necessity of a prior revocation of any permit.''
    EPA has determined that the proposed provisions submitted by Knox 
County on September 18 and 25, 1995, are acceptable. As condition of 
full approval, the County plans to expeditiously adopt the proposed 
change prior to EPA's final action on the County's program.
    The aforementioned TSD contains the detailed analysis of the Knox 
County program and describes the manner in which the County's program 
meets all of the operating permit program requirements of 40 CFR part 
70.
3. Permit Fee Demonstration
    Section 502(b)(3) of the Act requires each permitting authority to 
collect fees sufficient to cover all reasonable direct and indirect 
costs necessary for the development and administration of its title V 
operating permit program. Each title V program submittal 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 is presumed, for program approval, to be 
sufficient to cover all reasonable program costs and is thus referred 
to as the ``presumptive minimum.''
    Knox County will collect permit and emission-based fees that are 
projected at $29.26 per ton of pollutant in 1995. Fees will be adjusted 
annually by the Consumer Price Index beginning in 1996. The fee 
demonstration showed that the fees collected will adequately cover the 
anticipated costs of the operating permit program for the years 1995 
through 1999.
4. Provisions Implementing the Requirements of Other Titles of the Act
    a. Authority for Section 112 Implementation. In its program 
submittal, Knox County demonstrates adequate legal authority to 
implement and enforce all section 112 requirements through the title V 
permit. This legal authority is contained in K.C.A.P.C. section 35.0, 
and in section 25.70.2 where the term ``applicable requirements'' is 
defined. EPA has determined that this legal authority is sufficient to 
allow the local agency to issue permits that assure compliance with all 
section 112 requirements.
    EPA is interpreting the above legal authority to mean that Knox 
County is able to carry out all section 112 activities with respect to 
part 70 and non-part 70 sources. For further rationale on this 
interpretation, please refer to the TSD.
    b. Implementation of Section 112(g) Upon Program Approval. EPA 
issued an interpretive notice on February 14, 1995 (60 FR 8333), which 
outlines EPA's revised interpretation of section 112(g) applicability. 
The notice postpones the effective date of section 112(g) until after 
EPA has promulgated a rule addressing that provision. The notice sets 
forth in detail the rationale for the revised interpretation.
    The section 112(g) interpretative 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 or local agencies 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), Knox County must 
have a Federally enforceable mechanism for implementing section 112(g) 
during the period between promulgation of the Federal section 112(g) 
rule and adoption of implementing local regulations.
    EPA is aware that Knox County lacks a program designed specifically 
to implement section 112(g). However, the County does have a 
preconstruction review program that can serve as an adequate 
implementation vehicle during the transition period because it would 
allow the County to select control measures that would meet the maximum 
achievable control technology (MACT), as defined in section 112, and 
incorporate these 

[[Page 56284]]
measures into a Federally enforceable preconstruction permit. For this 
reason, EPA proposes to approve the use of Knox County's 
preconstruction review program found in K.C.A.P.C. section 25.1, under 
the authority of title V and part 70, solely for the purpose of 
implementing section 112(g) to the extent necessary during the 
transition period between section 112(g) promulgation and adoption of a 
local rule implementing EPA's section 112(g) regulations. Although 
section 112(l) generally provides authority for approval of local air 
programs to implement section 112(g), title V and section 112(g) 
provide for this limited approval because of the direct linkage between 
the implementation of section 112(g) and title V. The scope of this 
approval is narrowly limited to section 112(g) and does not confer or 
imply approval for purpose of any other provision under the Act (e.g., 
section 110). This approval will be without effect if EPA decides in 
the final section 112(g) rule that sources are not subject to the 
requirements of the rule until local regulations are adopted. The 
duration of this approval is limited to 18 months following 
promulgation by EPA of the section 112(g) rule to provide adequate time 
for the County to adopt regulations consistent with the Federal 
requirements.
    c. Program for Delegation of Section 112 Standards as Promulgated. 
The requirements for part 70 program approval, specified in 40 CFR 
70.4(b), encompass section 112(l)(5) requirements for approval of a 
state or local program for delegation of section 112 standards 
promulgated by EPA as they apply to title V sources. Section 112(l)(5) 
requires that the County's program contain adequate authorities, 
adequate resources for implementation, and an expeditious compliance 
schedule, which are also requirements under part 70. Therefore, EPA 
also proposes to grant approval, under section 112(l)(5) and 40 CFR 
63.91, of Knox County's program for receiving delegation of future 
section 112 standards and programs that are unchanged from the Federal 
rules as promulgated. In addition, EPA proposes delegation of all 
existing standards and programs under 40 CFR parts 61 and 63 for part 
70 sources and non-part 70 sources.1

    \1\ The radionuclide National Emission Standards for Hazardous 
Air Pollutant (NESHAP) is a section 112 regulation and therefore, 
also an applicable requirement under the State operating permits 
program for part 70 sources. There is not yet a Federal definition 
of ``major'' for radionuclide sources. Therefore, until a major 
source definition for radionuclide is promulgated, no source would 
be a major section 112 source solely due to its radionuclide 
emissions. However, a radionuclide source may, in the interim, be a 
major source under part 70 for another reason, thus requiring a part 
70 permit. EPA will work with the State in the development of its 
radionuclide program to ensure that permits are issued in a timely 
manner.
---------------------------------------------------------------------------

    Knox County has informed EPA that it intends to accept the 
delegation of future section 112 standards using the mechanism of 
adoption-by-reference. The details of the County's use of its 
delegation mechanism are set forth in a letter dated January 19, 1995, 
submitted by Knox County as a title V program addendum.
    d. Commitment to Implement Title IV of the Act. Knox County adopted 
and incorporated by reference the provisions of 40 CFR part 72. On 
March 29, 1995, EPA published a Federal Register notice (60 FR 16127) 
notifying affected sources that the County's acid rain regulation was 
acceptable for purposes of administering an acid rain program and that 
the Knox County acid rain portion of the County's title V program has 
been established. Knox County has committed to incorporate by reference 
any new or revised provisions following promulgation by EPA.

B. Proposed Actions

1. Full Approval
    The EPA is proposing full approval of the operating permits program 
submitted by Knox County on November 12, 1993, as supplemented on 
August 24, 1994, January 6 and 19, 1995, February 6, 1995, May 23, 
1995, and September 18 and 25, 1995, if appropriate revisions to the 
County's program are adopted prior to final promulgation of this 
rulemaking. Knox County must make the following changes to receive full 
approval:
    1. Knox County must revise the contents of K.C.A.P.C. section 
25.70.7(e)(2)(i)(B) to provide for operational flexibility in 
accordance with 40 CFR 70.4(b)(12)(iii), 70.5(c)(7), and 70.6(a)(10). 
These requirements allow the permitting authority, if requested by 
permit applicants, to issue permits that contain terms and conditions 
allowing for the trading of emissions increases and decreases in 
permitted facilities.
    2. Knox County must revise K.C.A.P.C. section 30.1(D) to specify 
that the maximum fine shall be no less than $10,000 per day per 
violation.
    3. The County must revise K.C.A.P.C. section 30.1(G) to incorporate 
the requirements of 40 CFR 70.11(a)(1), with respect to the County's 
authority to restrain or enjoin immediately and effectively any person 
by order or by suit in court from engaging in any activity in violation 
of a permit that is presenting an imminent and substantial endangerment 
to the public health or welfare of the environment.
    4. Knox County must revise K.C.A.P.C. section 30.1(F) to include 
the requirements of 40 CFR 70.11(a)(2) with respect to the authority 
``to seek injunctive relief in court to enjoin any violation of any 
program requirement, including permit conditions, without the necessity 
of a prior revocation of a permit.''
    EPA has determined that the Knox County program is otherwise 
adequate to meet the minimum elements of an approvable operating 
permits program as specified in 40 CFR part 70.
2. Interim Approval
    Alternatively, EPA is proposing to grant interim approval under 40 
CFR 70.4(d) to the Knox County operating permits program if the changes 
required for full approval, as described above, are not made prior to 
final promulgation of this rulemaking. EPA can grant interim approval 
because Knox County's program substantially meets the requirements of 
part 70 as discussed in section II(A) of this notice. The interim 
approval issues noted above will not prevent the County from issuing 
permits that are consistent with the part 70 program.
    If EPA grants interim approval to the Knox County program, the 
interim approval would extend for two years following the effective 
date of final interim approval, and could not be renewed. During the 
interim approval period, Knox County would be protected from sanctions, 
and EPA would not be obligated to promulgate, administer and enforce a 
Federal permits program for Knox County. Permits issued under a program 
with interim approval are fully effective with respect to part 70. The 
12-month time period for submittal of permit applications by sources 
subject to part 70 requirements and the three-year time period for 
processing the initial permit applications begin upon the effective 
date of final interim approval.
    Following the granting of final interim approval, if Knox County 
fails to submit a complete corrective program for full approval by the 
date six months before expiration of the interim approval, EPA would 
start an 18-month clock for mandatory sanctions. If Knox County then 
fails to submit a corrective program that EPA finds complete before the 
expiration of that 18-month period, EPA is required to apply one of the 
sanctions in section 179(b) of the Act, which will remain in effect 
until EPA determines that Knox County has corrected the 

[[Page 56285]]
deficiency by submitting a complete corrective program.
3. Other Actions
    As discussed previously in section II.A.4.b., EPA proposes to 
approve Knox County's preconstruction review program found in 
K.C.A.P.C. section 25.1, under the authority of title V and part 70 
solely for the purpose of implementing section 112(g) to the extent 
necessary during the transition period between 112(g) promulgation and 
adoption of a local rule implementing EPA's section 112(g) regulations.
    In addition, as discussed in section II.A.4.c., EPA proposes to 
grant approval under section 112(l)(5) and 40 CFR 63.91 to the County's 
program for receiving delegation of future section 112 standards and 
programs that are unchanged from Federal rules as promulgated. EPA also 
proposes to delegate all existing standards under 40 CFR parts 61 and 
63 for both part 70 and non-part 70 sources.

III. Administrative Requirements

A. Request for Public Comments

    The EPA is requesting comments on all aspects of this proposed 
interim approval. Copies of the Knox County submittal and other 
information relied upon for the proposed full/interim approval are 
contained in docket number TN-KNOX-95-01 maintained at the EPA Regional 
Office. The docket is an organized and complete file of all the 
information submitted to, or otherwise considered by, EPA in the 
development of this proposed interim approval. The principal purposes 
of the docket are:
    (1) To allow interested parties a means to identify and locate 
documents so that they can effectively participate in the approval 
process, and
    (2) to serve as the record in case of judicial review. The EPA will 
consider any comments received December 8, 1995.

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 Reform Act of 1995

    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 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 in 40 CFR Part 70

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Operating permits, 
Reporting and recordkeeping requirements.

    Authority: 42 U.S.C. 7401-7671q.

    Dated: October 31, 1995.
Patrick M. Tobin,
Acting Regional Administrator.
[FR Doc. 95-27697 Filed 11-7-95; 8:45 am]
BILLING CODE 6560-50-P

Complete official Federal Register PDF

FR Doc. 95-27683 Approval and Promulgation of Implementation Plan for New Mexico Albuquerque/Bernalillo County: Transportation Conformity Rules
[Federal Register Volume 60, Number 216 (Wednesday, November 8, 1995)]
[Proposed Rules]
[Page 56280]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27683]

-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[NM-27-1-7208b; FRL-5322-7]

Approval and Promulgation of Implementation Plan for New Mexico--
Albuquerque/Bernalillo County: Transportation Conformity Rules

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: This notice proposes to approve a revision to the New Mexico 
State Implementation Plan (SIP) for the Albuquerque/Bernalillo County 
nonattainment area that contains transportation conformity rules. The 
transportation conformity SIP revision will enable the Albuquerque/
Bernalillo County Air Quality Control Board to implement and enforce 
the Federal transportation conformity requirements at the local level 
in accordance with 40 CFR part 51, subpart T--Conformity to State or 
Federal Implementation Plans of Transportation Plans, Programs, and 
Projects Developed, Funded or Approved Under Title 23 U.S.C. or the 
Federal Transit Act. The proposed approval is limited only to 40 CFR 
part 51, subpart T (Transportation Conformity), and the SIP revision 
submitted under 40 CFR part 51, subpart W, conformity of general 
Federal actions, will be addressed in a separate notice. The EPA is 
proposing to approve this SIP revision under section 110(k) of the 
Clean Air Act (CAA). The rationale for the proposed approval and other 
information are provided in the Final Rules Section of this Federal 
Register.
    In the Final Rules Section of this Federal Register, the EPA is 
approving this transportation SIP revision as a direct final rulemaking 
without prior proposal because the EPA views this action as 
noncontroversial and anticipates no adverse comments. A detailed 
rationale for the approval is set forth in the direct final rule. If no 
adverse comments are received in response to that direct final rule, no 
further activity is contemplated in relation to this proposed rule. If 
the EPA receives adverse comments, the direct final rule will be 
withdrawn and all public comments received will be addressed in a 
subsequent final rule based on this proposed rule. The EPA will not 
institute a second comment period on this action. Any parties 
interested in providing comments on this action should do so at this 
time.

DATES: Comments on this proposed rule must be received in writing, 
postmarked by December 8, 1995.

ADDRESSES: Copies of the State's submittal and other relevant 
information are available for inspection during normal business hours 
at the following locations. Interested persons wanting to examine these 
documents should make an appointment with the appropriate office at 
least 24 hours before the visiting day.

    Air Planning Section (6PDL), Multimedia Planning and Permitting 
Division, Environmental Protection Agency, Region 6, 1445 Ross 
Avenue, Dallas, Texas 75202, Telephone: (214) 665-7214.
    Air Pollution Control Division, Albuquerque Environmental Health 
Department, One Civic Plaza, Albuquerque, New Mexico 87103, 
Telephone: (505) 768-2600.

FOR FURTHER INFORMATION CONTACT: Mr. J. Behnam, P. E.; Air Planning 
Section (6PDL), Multimedia Planning and Permitting Division, 
Environmental Protection Agency, Region 6, 1445 Ross Avenue, Dallas, 
Texas 75202, Telephone (214) 665-7247.

SUPPLEMENTARY INFORMATION: See the information provided in the Direct 
Final rule which is located in the Rules Section of this Federal 
Register.

    Authority: 42 U.S.C. 7401-7671q.

    Dated: October 20, 1995.
A. Stanley Meiburg,
Acting Regional Administrator (6RA).
[FR Doc. 95-27683 Filed 11-7-95; 8:45 am]
BILLING CODE 6560-50-P

Complete official Federal Register PDF

FR Doc. 95-27681 Approval and Promulgation of Implementation Plan for Texas: Transportation Conformity Rules
[Federal Register Volume 60, Number 216 (Wednesday, November 8, 1995)]
[Proposed Rules]
[Pages 56280-56281]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27681]

-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[TX-56-1-7209b; FRL-5322-5]

Approval and Promulgation of Implementation Plan for Texas: 
Transportation Conformity Rules

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: This notice proposes to approve a revision to the Texas State 
Implementation Plan (SIP) that contains transportation conformity 
rules. The transportation conformity SIP revision will enable the State 
to implement and enforce the Federal transportation conformity 
requirements at the State level in accordance with 40 CFR part 51, 
subpart T--Conformity to State or Federal Implementation Plans of 
Transportation Plans, Programs, and Projects Developed, Funded or 
Approved Under Title 23 U.S.C. or the Federal Transit Act. The proposed 
approval is limited only to 40 CFR part 51, subpart T (Transportation 
Conformity), and the SIP revision submitted under 40 CFR part 51, 
subpart W, conformity of general Federal actions, will be addressed in 
a separate notice. The EPA is proposing to approve this SIP revision 
under section 110(k) of the Clean Air Act (CAA). The rationale for the 
proposed approval and other information are provided in the Final Rules 
Section of this Federal Register.
    In the Final Rules Section of this Federal Register, the EPA is 
approving this transportation SIP revision as a direct final rulemaking 
without prior proposal because the EPA views this action as 
noncontroversial and anticipates no adverse comments. A detailed 
rationale for the approval is set forth in the direct final rule. If no 
adverse comments are received in response to that direct final rule, no 
further activity is contemplated in relation to this proposed rule. If 
the EPA receives adverse comments, the direct final rule will be 
withdrawn and all 

[[Page 56281]]
public comments received will be addressed in a subsequent final rule 
based on this proposed rule. The EPA will not institute a second 
comment period on this action. Any parties interested in providing 
comments on this action should do so at this time.

DATES: Comments on this proposed rule must be received in writing, 
postmarked by December 8, 1995.

ADDRESSES: Copies of the State's submittal and other relevant 
information are available for inspection during normal business hours 
at the following locations. Interested persons wanting to examine these 
documents should make an appointment with the appropriate office at 
least 24 hours before the visiting day.

    Air Planning Section (6PDL), Multimedia Planning and Permitting 
Division, Environmental Protection Agency, Region 6, 1445 Ross 
Avenue, Dallas, Texas 75202, Telephone: (214) 665-7214.
    Texas Natural Resource Conservation Commission, Mobile Source 
Division, 12124 Park 35 Circle, Austin, Texas 78753, Telephone: 
(512) 239-1943.

FOR FURTHER INFORMATION CONTACT: Mr. J. Behnam, P. E.; Air Planning 
Section (6PDL), Multimedia Planning and Permitting Division, 
Environmental Protection Agency, Region 6, 1445 Ross Avenue, Dallas, 
Texas 75202, Telephone (214) 665-7247.

SUPPLEMENTARY INFORMATION: See the information provided in the Direct 
Final rule which is located in the Rules Section of this Federal 
Register.

    Authority: 42 U.S.C. 7401-7671q.

    Dated: October 20, 1995.
A. Stanley Meiburg,
Acting Regional Administrator (6RA).
[FR Doc. 95-27681 Filed 11-7-95; 8:45 am]
BILLING CODE 6560-50-P

Complete official Federal Register PDF

FR Doc. 95-27657 Proposed Flood Elevation Determinations
[Federal Register Volume 60, Number 216 (Wednesday, November 8, 1995)]
[Proposed Rules]
[Pages 56300-56307]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27657]

=======================================================================
-----------------------------------------------------------------------

FEDERAL EMERGENCY MANAGEMENT AGENCY

44 CFR Part 67

[Docket No. FEMA-7161]

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 

[[Page 56301]]
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:

------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                                          #Depth in feet above  
                                                                                                                                                                          ground. *Elevation in 
                State                      City/town/county                  Source of flooding                                      Location                                 feet. (NGVD)      
                                                                                                                                                                       -------------------------
                                                                                                                                                                          Existing     Modified 
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Arkansas.............................  Perryville (city) Perry   Fourche La Fave River....................  Approximately 3,100 feet downstream of State Highway 10,           None         *279
                                        County.                                                              at the City of Perryville corporate limits.                                        
                                                                                                            Just downstream of State Highway 10.......................         None         *281
                                                                                                            Approximately 4,500 feet upstream of State Highway 10, at          None         *283
                                                                                                             the City of Perryville corporate limits.                                           
                                                                                                            Appoximately 2.8 miles upstream of State Highway 10, at            None         *286
                                                                                                             the City of Perryville corporate limits.                                           
                                                                                                            Approximately 3.2 miles upstream of State Highway 10......         None         *287
                                                                 Cedar Creek..............................  At confluence with Fourche La Fave River..................         None         *282
                                                                                                            Just upstream of Cedar Street.............................         None         *286
                                                                                                            Just upstream of Alpin Street State Highway 60)...........         None         *324
                                                                                                            Approximately 3,600 feet upstream of Alpin Street (State           None         *345
                                                                                                             Highway 60), at the City of Perryville corporate limits.                           
                                                                                                                                                                                                
  Maps are available for inspection at the City of Perryville Water Department, Corner of B and Pine Streets, Perryville, Arkansas.                                                             
                                                                                                                                                                                                
  Send comments to The Honorable Charles Roland, Jr., Mayor, City of Perryville, P.O. Box 116, Perryville, Arkansas 72126.                                                                      
                                                                                                                                                                                                
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Arkansas.............................  Pulaski County            Little Maumelle River....................  At confluence of Nowlin Creek.............................         *268         *269
                                        (unincorporated areas).                                                                                                                                 
                                                                                                            Approximately 120 feet upstream of State Highway 10.......         *293         *295
                                                                                                            Just downstream of Ferndale Cutoff Road...................         *360         *358
                                                                                                            Just upstream of Grimmett Lane............................         *478         *476
                                                                                                            Just upstream Brush Mountain Trail........................         *566         *564
                                                                 Kinley Creek.............................  Approximately 1,000 feet upstream of confluence with               *292         *295
                                                                                                             Nowlin Creek.                                                                      
                                                                                                            Approximately 150 feet upstream of State Highway 10.......         *309         *310
                                                                                                            Just upstream of Garrison Road............................         *394         *396
                                                                                                            Just upstream of Copper Creek Lane........................         *429         *428
                                                                 Nowlin Creek.............................  Approximately 1,700 feet above mouth......................         *268         *270

[[Page 56302]]
                                                                                                                                                                                                
                                                                                                            Approximately 150 feet downstream of Barrett Road.........         *282         *281
                                                                                                            Just downstream of Goodson Road...........................         *330         *330
                                                                                                            Approximately 100 feet upstream of County Road............         None         *400
                                                                                                            At upstream Limits of Detailed Study located at a County           None         *500
                                                                                                             Road.                                                                              
                                                                 McHenry Creek............................  Approximately 1,150 feet upstream of Lawson Road..........         *363         *359
                                                                                                            Approximately 200 feet upstream of Lawson Road............         None         *406
                                                                                                            Approximately 150 feet upstream of Green Bear Road........         None         *489
                                                                                                            Just upstream of Colonel Glenn Road.......................         None         *546
                                                                                                                                                                                                
  Maps are available for inspection at the Planning Department, Pulaski County, 501 West Markham Street, Suite A, Little Rock, Arkansas.                                                        
                                                                                                                                                                                                
  Send comments to The Honorable Floyd G. Villines, Pulaski County Judge, County Courthouse, 201 South Broadway, Little Rock, Arkansas 72201.                                                   
                                                                                                                                                                                                
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California...........................  Cloverday (city) Sonoma   Cloverdale Creek.........................  At confluence with the Russian River......................         *302         *302
                                        County.                                                                                                                                                 
                                                                                                            Just upstream of the Southern Pacific Railroad bridge.....         None         *315
                                                                                                            Just upstream of Third Street.............................         None         *338
                                                                                                            Appoximately 200 feet upstream of Cloverdale Boulevard....         None         *374
                                                                                                            Approximately 100 feet upstream of Portofino Way..........         None         *385
                                                                                                                                                                                                
  Maps are available for inspection at the City of Cloverdale, Department of Public Works, 124 North Cloverdale Boulevard, Cloverdale, California.                                              
                                                                                                                                                                                                
  Send comments to The Honorable Carol Chase, Mayor, City of Cloverdale, P.O. Box 217, Cloverdale, California 95425.                                                                            
                                                                                                                                                                                                
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
California...........................  Coalinga (city) Fresno    Warthan Creek............................  At confluence with Los Gatos Creek........................         None         *643
                                        County.                                                                                                                                                 
                                                                                                            Approximately 200 feet downstream of Jayne Avenue (both            None         *658
                                                                                                             levees intact).                                                                    
                                                                                                            Approximately 200 feet downstream of Jayne Avenue (right           None         *657
                                                                                                             levee failed).                                                                     
                                                                                                            Approximately 200 feet downstream of Jayne Avenue (left            None         *656
                                                                                                             levee failed).                                                                     
                                                                                                            Approximately 5,000 feet upstream of Jayne Avenue.........         None         *675
                                                                 Los Gatos Creek..........................  Approximately 3,150 feet downstream of confluence with             None         *633
                                                                                                             Warthan Creek (levee intact).                                                      
                                                                                                            Approximately 3,150 feet downstream of confluence with             None         *638
                                                                                                             Warthan Creek (right levee failed).                                                
                                                                                                            Just downstream of Southern Pacific Railroad (abandoned            None         *652
                                                                                                             railroad).                                                                         
                                                                                                            Approximately 1,600 feet upstream of confluence with               None         *683
                                                                                                             Coalmine Canyon Creek.                                                             
                                                                                                                                                                                                
  Maps are available for inspection at the Planning Department, 155 West Durin Street, Coalinga, California.                                                                                    
                                                                                                                                                                                                
  Send comments to The Honorable Jim Allen, Mayor, City of Coalinga, 155 West Durin Street, Coalinga, California 93210.                                                                         
                                                                                                                                                                                                
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
California...........................  Fresno County             Warthan Creek............................  Approximately 1,200 feet upstream of confluence with Los           *646         *648
                                        (unincorporated areas).                                              Gatos Creek.                                                                       
                                                                                                            Approximately 5,000 feet upstream of Jayne Avenue.........         *678         *675
                                                                                                            Approximately 5,900 feet upstream of Alcalde Road.........         *739         *739
                                                                 Los Gatos Creek..........................  Approximately 9,000 feet downstream of Southern Pacific            None         *618
                                                                                                             Railroad.                                                                          
                                                                                                            Approximately 3,200 feet downstream of Southern Pacific            *641         *641
                                                                                                             Railroad.                                                                          
                                                                                                            Approximately 3,000 feet upstream of State Highway 198....         *691         *683

[[Page 56303]]
                                                                                                                                                                                                
                                                                                                            At Gayle Avenue...........................................         *760         *760
                                                                                                                                                                                                
  Maps are available for inspection at the Fresno County Library, Fresno, California.                                                                                                           
                                                                                                                                                                                                
  Send comments to The Honorable William H. Randolph, County Administrative Officer, 2281 Tulare Street, Fresno, California 93721.                                                              
                                                                                                                                                                                                
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
California...........................  Solano County             Alamo Creek..............................  At Leisure Town Road......................................          *84          *86
                                        (unincorporated areas).                                                                                                                                 
                                                                                                            Approximately 550 feet upstream of Vanden Road............          *96          *96
                                                                                                            Approximately 4,700 feet upstream of Pleasant Valley Road.         *232         *232
                                                                                                            At Pleasant Valley Road...................................         *256         *256
                                                                 Ulatis Creek.............................  Approximately 12,400 feet upstream of Leisure Town Road...         *129         *125
                                                                                                            Approximately 14,650 feet upstream of Leisure Town Road...         *145         *139
                                                                                                            Just downstream of Fruitvale Road.........................         *192         *193
                                                                                                            Approximately 4,600 feet upstream of Fruitvale Road.......         *226         *224
                                                                 Bucktown Creek...........................  At confluence with Ulatis Creek...........................         *224         *222
                                                                                                            Approximately 1,000 feet upstream of confluence with               *224         *224
                                                                                                             Ulatis Creek.                                                                      
                                                                 Encinosa Creek...........................  Approximately 450 feet downstream of Pleasant Valley Road.         *238         *231
                                                                                                            At Pleasant Valley Road (upstream crossing)...............         *248         *241
                                                                 Laguna Creek.............................  Approximately 100 feet upstream of Highway 80.............         *198         *202
                                                                                                            Approximately 450 feet downstream of Cherry Glen Road.....         *214         *213
                                                                                                                                                                                                
  Maps are available for inspection at Solano Department of Environmental Management, 601 Texas Street, Fairfield, California.                                                                  
                                                                                                                                                                                                
  Send comments to The Honorable William Carroll, Chairman, Solano County Board of Supervisors, 580 Texas Street, Fairfield, California 94533.                                                  
                                                                                                                                                                                                
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Iowa.................................  Elkader (city) Clayton    Turkey River.............................  Approximately 1.0 mile downstream of Iowa 13..............         *720         *718
                                        County.                                                                                                                                                 
                                                                                                            Just upstream of Iowa 13..................................         *726         *722
                                                                                                            Just upstream of the dam..................................         *735         *735
                                                                                                            At Corporate Limit........................................         *739         *738
                                                                                                                                                                                                
  Maps are available for inspection at 207 North Main Street, Elkader, Iowa.                                                                                                                    
                                                                                                                                                                                                
  Send comments to The Honorable Tom Diers, Mayor, City of Elkader, 207 North Main Street, Elkader, Iowa 52043-0427.                                                                            
                                                                                                                                                                                                
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                  New Mexico.........  Sandoval County and       Arkansas Channel.........................  At confluence with West Branch of Black's Arroyo..........         None       *5,499
                                        incorporated areas.                                                                                                                                     
                                                                                                            Approximately 30 feet upstream of Lisbon Avenue...........         None       *5,508
                                                                                                            20 feet upstream of Comanche Road.........................         None       *5,529
                                                                                                            Approximately 500 feet upstream of Comanche Road (Limit of         None       *5,546
                                                                                                             Detailed Study).                                                                   
                                                                 Arroyo D.................................  At confluence with Tributary B............................         None       *5,286
                                                                                                            Approximately 20 feet upstream of 23rd Street.............         None       *5,289
                                                                                                            Approximately 500 feet upstream of 23rd Street (Limit of           None       *5,299
                                                                                                             Detailed Study).                                                                   
                                                                 Arroyo de los Lomitas Negras.............  At the inlet to the Dulcelina Curtis Channel..............         None       *5,098
                                                                                                            Approximately 1,000 feet upstream of the inlet to the              None       *5,100
                                                                                                             Dulcelina Curtis Channel.                                                          
                                                                                                            Approximately 100 feet downstream of State Highway 528             None       *5,121
                                                                                                             (Limit of Detailed Study).                                                         
                                                                 Arroyo de los Montoyas...................  At the inlet to the Harvey Jones Channel..................       *5,075       *5,079
                                                                                                            Approximately 2,500 feet upstream of the inlet to the            *5,098       *5,100
                                                                                                             Harvey Jones Channel.                                                              
                                                                                                            At the Village of Corrales/City of Rio rancho Corporate          *5,135       *5,135
                                                                                                             Limits.                                                                            

[[Page 56304]]
                                                                                                                                                                                                
                                                                                                            Approximately feet upstream of the inlet to the Harvey             None       *5,140
                                                                                                             Jones Channel (Limit of Detailed Study).                                           
                                                                 East Branch of Black's Arroyo............  Approximately 120 feet upstream of the Sandoval/Bernalillo         None       *5,178
                                                                                                             County Line.                                                                       
                                                                                                            Approximately 100 feet upstream of 19th Street............         None       *5,240
                                                                                                            Approximately 120 feet upstream of 18th Street............         None       *5,255
                                                                                                            Approximately 40 feet upstream of Southern Boulevard......         None       *5,355
                                                                                                            Approximately 40 feet upstream of Western Hills Drive.....         None       *5,432
                                                                                                            Approximately 600 feet upstream of Lema road (Limit of             None       *5,459
                                                                                                             Detailed Study).                                                                   
                                                                 West Branch of Black's Arroyo............  At the Sandoval/Bernalillo County Line....................         None       *5,200
                                                                                                            Approximately 100 feet upstream of 19th Avenue............         None       *5,266
                                                                                                            Approximately 70 feet upstream of Southern Boulevard......         None       *5,433
                                                                                                            Approximately 20 feet upstream of Tarpon Avenue...........         None       *5,531
                                                                                                            Approximately 4,200 feet upstream of Tarpon Avenue (Limit          None       *5,561
                                                                                                             of Detailed Study).                                                                
                                                                 Jemez River..............................  Approximately 250 feet downstream of the Jemez Indian              None       *5,602
                                                                                                             Reservation Boundary.                                                              
                                                                                                            At confluence with the Rio Guadalupe......................         None       *5,656
                                                                                                            At the Village of Jemez Springs downstream corporate               None       *5,984
                                                                                                             limits.                                                                            
                                                                                                            Approximately 10,560 feet upstream of the Jemez Springs            None       *6,145
                                                                                                             downstream corporate limits.                                                       
                                                                                                            Approximately 100 feet upstream of the Jemez Springs               None       *6,305
                                                                                                             upstream corporate limits.                                                         
                                                                                                            Approximately 1,200 feet upstream of confluence with San           None       *6,801
                                                                                                             Antonio Creek (Limit of Detailed Study).                                           
                                                                 Nicklaus Channel.........................  At confluence with the East Branch of Black's Arroyo......         None       *5,367
                                                                                                            Approximately 60 feet upstream of Fairway Loop............         None       *5,393
                                                                                                            Approximately 900 feet upstream of Lema Road (Limit of             None       *5,418
                                                                                                             Detailed Study).                                                                   
                                                                 Player Channel...........................  At confluence with the East Branch of Black's Arroyo......         None       *5,355
                                                                                                            Approximately 20 feet upstream of Trevino Drive...........         None       *5,375
                                                                                                            Approximately 500 feet upstream of Trevino Drive (Limit of         None       *5,380
                                                                                                             Detailed Study).                                                                   
                                                                 San Antonio Creek........................  At confluence with the Jemez River........................         None       *6,765
                                                                                                            Approximately 10,000 feet upstream of confluence with the          None       *7,156
                                                                                                             Jemez River.                                                                       
                                                                                                            At confluence of Sulphur Creek............................         None       *7,616
                                                                                                            Approximately 8,300 feet upstream of confluence of Sulphur         None       *7,719
                                                                                                             Creek (Limit of Detailed Study)..                                                  
                                                                 Spur Channel.............................  At confluence with the West Branch of Black's Arroyo......         None       *5,375
                                                                                                            Approximately 40 feet upstream of Southern Boulevard......         None       *5,462
                                                                                                            Approximately 1,100 feet upstream of Spur Road (Limit of           None       *5,508
                                                                                                             Detailed Flooding).                                                                
                                                                 Sugar Channel............................  At confluence with the West Branch of Black's Arroyo......         None       *5,520
                                                                                                            Approximately 20 feet upstream of Montego Drive...........         None       *5,551

[[Page 56305]]
                                                                                                                                                                                                
                                                                                                            Approximately 400 feet upstream of Montego Drive (Limit of         None       *5,561
                                                                                                             Detailed Study).                                                                   
                                                                 Tributary A..............................  At confluence with the West Branch of Black's Arroyo......         None       *5,275
                                                                                                            Approximately 100 feet upstream of 15th Street............         None       *5,362
                                                                                                            Approximately 1,000 feet upstream of Villa Road (Limit of          None       *5,520
                                                                                                             Detailed Study).                                                                   
                                                                 Tributary B..............................  At confluence with the East Branch of Black's Arroyo......         None       *5,200
                                                                                                            Approximately 120 feet upstream of 18th Avenue............         None       *5,259
                                                                                                            Approximately 200 feet upstream of 14th Avenue............         None       *5,312
                                                                                                            Approximately 800 feet upstream of 22nd Street (Limit of           None       *5,355
                                                                                                             Detailed Study).                                                                   
                                                                 Zone AH..................................  Shallow flooding east of the Dulcelina Curtis Channel.....       *5,038       *5,033
                                                                                                                                                                                                
  Maps are available for inspection at 711 Camino Del Pueblo, Bernalillo, New Mexico. Send comments to The Honorable Debbie Hayes, Sandoval County Manager, P.O. Box 40, Bernalillo, New Mexico 
   87004.                                                                                                                                                                                       
                                                                                                                                                                                                
  Maps are available for inspection at Highway 4, Village Hall, Jemez Springs, New Mexico. Send comments to the Honorable David Sanchez, Mayor, Village of Jennez Springs, P.O. Box 87, Jemez   
   Springs, New Mexico 87025.                                                                                                                                                                   
                                                                                                                                                                                                
  Maps are available for inspection at 4324 Corrales Road, Corrales, New Mexico. Send comments to The Honorable Gary Kanin, Mayor, Village of Corrales, P.O. Box 707, Corrales, New Mexico      
   87048.                                                                                                                                                                                       
                                                                                                                                                                                                
  Maps are available for inspection at 3900 Southern Boulevard, Rio Rancho, New Mexico. Send comments to The Honorable Thomas E. Swisstack, Mayor, City of Rio Rancho, P.O. Box 15550, Rio      
   Rancho, New Mexico 87125-0550.                                                                                                                                                               
                                                                                                                                                                                                
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                                                                
New Mexico...........................  Sierra County             Rio Grande...............................  Approximately 1,500 feet downstream of the Village of              None       *4,231
                                        (unincorporated areas),                                              Williamsburg corporate limits (Limit of Detailed Study).                           
                                        Williamsburg (Village),                                                                                                                                 
                                        Truth or Consequences                                                                                                                                   
                                        (city).                                                                                                                                                 
                                                                                                            Village of Williamsburg downstream corporate limits.......         None       *4,231
                                                                                                            Village of Williamsburg upstream corporate limits.........         None       *4,233
                                                                                                            City of Truth or Consequences downstream corporate limits.         None       *4,233
                                                                                                            Approximately 20,600 feet upstream of the Limit of                 None       *4,244
                                                                                                             Detailed Study (Magnolia Street).                                                  
                                                                                                            City of Truth or Consequences upstream corporate limits...         None       *4,257
                                                                                                            Approximately 6,500 feet upstream of Highway 51 (Limit of          None       *4,257
                                                                                                             Detailed Study).                                                                   
                                                                                                                                                                                                
  Sierra County maps are available for inspection at 300 Date Street, Truth or Consequences, New Mexico. Send comments to Mr. Tony Chance, County Manager, Sierra County, 300 Date Street, Truth
   or Consequences, New Mexico 87901.                                                                                                                                                           
                                                                                                                                                                                                
  City of Truth or Consequences maps are available for inspection at 505 Sims Street, Truth or Consequences, New Mexico. Send comments to The Honorable Trey Campbell, Mayor, City of Truth or  
   Consequences, 505 Sims Street, Truth or Consequences, New Mexico 87901.                                                                                                                      
                                                                                                                                                                                                
Village of Williamsburg maps are available for inspection at Village Hall, Williamsburg, New Mexico. Send comments to The Honorable Victor Bertramson, Mayor, Village of Williamsburg, P.O. Box 
 150, Williamsburg, New Mexico 87942.                                                                                                                                                           
                                                                                                                                                                                                
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Oklahoma.............................  Chandler (city) Lincoln   Bellcow Creek............................  Approximately 1,350 feet downstream of U.S. Highway 66....         *834         *831
                                        County.                                                                                                                                                 
                                                                                                            Just upstream of U.S. Highway 66..........................         *838         *834
                                                                                                            Approximately 100 feet upstream of First Street...........         *848         *845
                                                                                                            At Lake Road..............................................         *860         *855
                                                                 Bellcalf Creek...........................  Approximately 700 feet downsteam of Lake Road.............         *857         *855
                                                                                                            Approximately 100 feet upstream of Lake Road..............         *859         *857
                                                                                                            Approximately 3,750 feet upstream of Lake Road............         *867         *867
                                                                 Chigger Creek............................  Approximately 70 feet upstream of Park Road...............         *840         *838
                                                                                                            Just upstream of First Street.............................         *853         *852

[[Page 56306]]
                                                                                                                                                                                                
                                                                                                            Approximately 90 feet upstream of Chigger Road............         *868         *868
                                                                 Indian Creek.............................  Approximately 100 feet upstream of Iowa Avenue............         *852         *853
                                                                                                            Just upstream of Eighth Street............................         *892         *892
                                                                                                            Approximately 900 feet upstream of Eighth Street..........         *898         *898
                                                                                                                                                                                                
  Maps are available for inspection at 220 South Cleveland, Chandler, Oklahoma.                                                                                                                 
                                                                                                                                                                                                
  Send comments to The Honorable Keith Schroeder, Mayor, City of Chandler, City Hall, 1001 Steele Avenue, Chandler, Oklahoma 74834.                                                             
                                                                                                                                                                                                
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Oklahoma.............................  Lincoln County            Bellcow Creek............................  Approximately 4,500 feet downstream of confluence of               *824         *823
                                        (unincorporated areas).                                              Indian Creek.                                                                      
                                                                                                            Just downstream of U.S. Highway 66........................         *835         *833
                                                                                                            Just downstream of Interstate Highway 44..................         *853         *850
                                                                                                            Approximately 2,100 feet upstream of Lake Road............         *864         *856
                                                                 Bellcalf Creek...........................  Approximately 700 feet downstream of Lake Road............         *857         *855
                                                                                                            Just downstream of Lake Road..............................         *859         *856
                                                                                                            Approximately 3,450 feet upstream of Lake Road............         *866         *866
                                                                 Indian Creek.............................  Just upstream of State Highway 18.........................         *830         *829
                                                                                                            Just downstream of Iowa Avenue............................         *849         *850
                                                                                                                                                                                                
  Maps are available for inspection at the Lincoln County Courthouse, Chandler, Oklahoma.                                                                                                       
                                                                                                                                                                                                
  Send comments to The Honorable Riley Miller, Jr., Chairman, Lincoln County Board of Commissioners, 810 Manvel, Chandler, Oklahoma 74834.                                                      
                                                                                                                                                                                                
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Oregon...............................  Washington County         Johnson Creek............................  At confluence with Cedar Mill Creek.......................         *186         *186
                                        (unincorporated areas).                                                                                                                                 
                                                                                                            Just upstream of Southwest Walker Road....................         None         *188
                                                                                                            Approximately 50 feet upstream of Southwest Butner Road...         None         *192
                                                                                                            Just upstream of Southwest Barnes Road....................         None         *218
                                                                                                            Approximately 500 feet upstream of Cedar Hills Boulevard..         None         *260
                                                                                                                                                                                                
  Maps are available for inspection at 155 North First Avenue, Suite 300, Hillsboro, Oregon.                                                                                                    
                                                                                                                                                                                                
  Send comments to The Honorable Linda Peters, Chairperson, Washington County Board of Commissioners, 155 North First Avenue, Suite 300, Hillsboro, Oregon 97124.                               
                                                                                                                                                                                                
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Utah.................................  Wendover (town) Tooele    Drainage Along North Side of Interstate    Approximately 2,700 feet north of Interstate Highway 80            None           #2
                                        County.                   Highway 80..                               adjacent to corporate limits..                                                     
                                                                                                            Approximately 2,000 feet north of Interstate Highway 80            None           #1
                                                                                                             adjacent to corporate limits.                                                      
                                                                                                            Approximately 1,000 feet north of Interstate Highway 80            None           #2
                                                                                                             adjacent to corporate limits.                                                      
                                                                                                            Approximately 500 feet north of Interstate Highway 80              None           #1
                                                                                                             adjacent to corporate limits.                                                      
                                                                                                            Approximately 100 feet north of Interstate Highway 80 and          None       *4,349
                                                                                                             300 feet due east of corporate limits.                                             
                                                                                                            Approximately 100 feet north of Interstate Highway 80              None       *4,344
                                                                                                             1,300 feet due east of corporate limits.                                           
                                                                                                            Approximately 100 feet north of Interstate Highway 80 and          None       *4,339
                                                                                                             2,800 feet due east of corporate limits.                                           
                                                                 Drainage Along South Side of Interstate    Approximately 100 feet south of Interstate Highway 80 and          None           #3
                                                                  Highway 80.                                200 feet due east of corporate limits.                                             
                                                                                                            Approximately 700 feet south of Interstate Highway 80 and          None           #2
                                                                                                             450 feet east of corporate limits.                                                 

[[Page 56307]]
                                                                                                                                                                                                
                                                                                                            Approximately 1,500 feet south of Interstate Highway 80            None           #1
                                                                                                             and 1,000 feet due east of corporate limits.                                       
                                                                                                            Approximately 100 feet north of Union Pacific Railroad and         None       *4,245
                                                                                                             3,000 feet due east of corporate limits.                                           
                                                                                                                                                                                                
  Maps are available for inspection at 195 South First Street, Wendover, Utah.                                                                                                                  
                                                                                                                                                                                                
  Send comments to The Honorable Brenda Morgan, Mayor, Town of Wendover, P.O. Box 326, Wendover, Utah 84083-0326.                                                                               
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

(Catalog of Federal Domestic Assistance No. 83.100, ``Flood 
Insurance'')

    Dated: November 1, 1995.
Richard T. Moore,
Associate Director for Mitigation.
[FR Doc. 95-27657 Filed 11-07-95; 8:45 am]
BILLING CODE 6718-04-P

Complete official Federal Register PDF

FR Doc. 95-27656 Proposed Flood Elevation Determinations
[Federal Register Volume 60, Number 216 (Wednesday, November 8, 1995)]
[Proposed Rules]
[Pages 56307-56310]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27656]

-----------------------------------------------------------------------

FEDERAL EMERGENCY MANAGEMENT AGENCY
44 CFR Part 67

[Docket No. FEMA-7159]

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 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 
(FEMA or 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 
National Flood Insurance Program. As a result, a regulatory flexibility 
analysis has not 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:

------------------------------------------------------------------------
                                                               #Depth in
                                                              feet above
                                                                ground. 
               Source of flooding and location                *Elevation
                                                                in feet 
                                                                (NGVD)  
------------------------------------------------------------------------
                           GEORGIA                                      
                                                                        
-------------------------------------------------------------           
                     (Name of community)                                
                                                                        
Whitewater Creek:                                                       
  At a point approximately 350 feet downstream of State                 
   Route 85.................................................       *750 
  Approximately 500 feet downstream of confluence of                    
   Whitewater Creek.........................................       *873 
South Camp Creek:                                                       
  At confluence with Whitewater Creek.......................       *759 

[[Page 56308]]
                                                                        
  Approximately 0.73 mile upstream of the confluence with               
   Whitewater Creek.........................................       *759 
Maps available for inspection at the Fayette County                     
 Engineering Department, 140 Stonewall Avenue West,                     
 Fayetteville, Georgia.                                                 
------------------------------------------------------------------------

    3. The tables published under the authority of Sec. 67.4 are 
proposed to be amended as follows:

------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                                          #Depth in feet above  
                                                                                                                                                                          ground. *Elevation in 
                State                      City/town/county                  Source of flooding                                      Location                                  feet (NGVD)      
                                                                                                                                                                       -------------------------
                                                                                                                                                                          Existing     Modified 
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Indiana..............................  Seymour (city) Jackson    Heddy Run, Von Fange Ditch...............  Approximately 0.78 mile downstream of Chessie System at            *560         *561
                                        County.                                                              the extraterritorial limits.                                                       
                                                                                                            Approximately 70 feet upstream of Eighth Street...........         None         *571
                                                                                                                                                                                                
  Maps available for inspection at the City Hall, 301 North Chestnut, Seymour, Indiana.                                                                                                         
                                                                                                                                                                                                
  Send comments to The Honorable John Burkhart, Mayor of the City of Seymour, City Hall, 301 North Chestnut, Seymour, Indiana 47274.                                                            
                                                                                                                                                                                                
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Minnesota............................  Red Wing (City) Goodhue   Mississippi River........................  At downstream corporate limits............................         None         *682
                                        County.                                                                                                                                                 
                                                                                                            At upstream corporate limits..............................         None         *687
                                                                 Spring Creek.............................  At Chicago and Northwestern Railway.......................         None         *693
                                                                                                            Approximately 0.8 mile upstream of Spring Creek Avenue....         None         *799
                                                                 Trout Brook..............................  At confluence with Hay Creek..............................         *700         *699
                                                                                                            Approximately 50 feet upstream of Pioneer Trail...........         *719         *720
                                                                 Hay Creek................................  Chicago, Milwaukee, St. Paul, and Pacific Railroad........         *688         *686
                                                                                                            Approximately 350 feet downstream of Pioneer Trail........         *704         *705
                                                                                                                                                                                                
  Maps available for inspection at the Building Department, 315 East Fourth Street, Red Wing, Minnesota.                                                                                        
                                                                                                                                                                                                
  Send comments to The Honorable Romeo Cyr, Mayor of the City of Red Wing, Red Wing City Hall, P.O. Box 34, Red Wing, Minnesota 55066.                                                          
                                                                                                                                                                                                
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
 Mississippi.........................  DeSoto County             Horn Lake Creek..........................  At upstream side of State Line Road.......................         *235         *236
                                        (unincorporated Areas).                                                                                                                                 
                                                                                                            At downstream side of Getwell Road........................         None         *364
                                                                 Cow Pen Creek............................  At confluence with Horn Lake Creek........................         *254         *255
                                                                                                            At downstream side of Illinois Central Railroad...........         None         *308
                                                                 Rocky Creek..............................  Approximately 500 feet upstream of Swinnea Road...........         None         *314
                                                                                                            Approximately 0.4 mile upstream of Plum Point Road........         None         *366
                                                                 Pigeon Roost Creek.......................  Approximately 1,580 feet downstream of Ingrams Mill Road..         None         *277
                                                                                                            Approximately 3.9 miles upstream of Ingrams Mill Road.....         None         *295
                                                                 Lateral D................................  Approximately 0.5 mile upstream of Church Road............         None         *307
                                                                                                            At downstream side of Swinnea Road........................         None         *328
                                                                 Red Banks Creek..........................  At confluence with Pigeon Roost Creek.....................         None         *281
                                                                                                            Approximately 0.8 mile upstream of Red Banks Road.........         None         *299
                                                                 Southaven Creek..........................  At confluence with Horn Lake Creek........................         *254         *255
                                                                                                            Approximately 1,500 feet upstream of confluence with Horn          *254         *255
                                                                                                             Lake Creek.                                                                        
                                                                                                                                                                                                

[[Page 56309]]
                                                                                                                                                                                                
  Maps available for inspection at the DeSoto County Planning Department, DeSoto County Courthouse, 2535 Highway 51 South, Hernando, Mississippi.                                               
                                                                                                                                                                                                
  Send comments to Mr. Clouis B. Reed, Jr., DeSoto County Administrator, 2535 Highway 51 South, DeSoto County Courthouse, Hernando, Mississippi 38632.                                          
                                                                                                                                                                                                
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Mississippi..........................  Horn Lake (city) DeSoto   Horn Lake Creek..........................  Approximately 1.3 mile downstream of Illinois Central              *253         *254
                                        County.                                                              Railroad.                                                                          
                                                                                                            Approximately 0.9 mile upstream of U.S. Route 51..........         *273         *274
                                                                 Rocky Creek..............................  At confluence with Horn Lake Creek........................         *268         *270
                                                                                                            Approximately 0.7 mile downstream of Interstate Route 55..         *273         *275
                                                                 Cow Pen Creek............................  Approximately 0.6 mile downstream of Goodman Road.........         *287         *290
                                                                                                            At downstream side of Church Road.........................         *287         *290
                                                                                                                                                                                                
  Maps available for inspection at the City of Horn Lake Planning Department, City Hall, 2285 Goodman Road, Horn Lake, Mississippi.                                                             
                                                                                                                                                                                                
  Send comments to The Honorable Mike Thomas, Mayor of the City of Horn Lake, 2285 Goodman Road, Horn Lake, Mississippi 38637.                                                                  
                                                                                                                                                                                                
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Mississippi..........................  Southaven (city) DeSoto   Horn Lake Creek..........................  At upstream side of State Line Road.......................         *235         *234
                                        County.                                                                                                                                                 
                                                                                                            Approximately 0.9 mile upstream of Elmore Road............         None         *306
                                                                 Lateral D................................  At confluence with Horn Lake Creek........................         None         *284
                                                                                                            Approximately 0.5 mile upstream of Church Road............         None         *307
                                                                 Lateral E................................  At confluence with Horn Lake Creek........................         *294         *292
                                                                                                            At downstream side of Tchulahoma Road.....................         None         *339
                                                                 Southaven Creek..........................  Approximately 1,800 feet upstream of confluence with Horn          *254         *255
                                                                                                             Lake Creek.                                                                        
                                                                                                            Approximately 0.2 mile downstream of Illinois Central              *254         *255
                                                                                                             Railroad.                                                                          
                                                                 Rocky Creek..............................  At confluence with Horn Lake Creek........................         *268         *270
                                                                                                            Approximately 0.78 mile upstream of Swinnea Road..........         None         *328
                                                                                                                                                                                                
  Maps available for inspection at the City of Southaven Planning Department, City Hall, 8625 Highway 51, Southaven, Mississippi.                                                               
                                                                                                                                                                                                
  Send comments to The Honorable J. A. Cates, Mayor of the City of Southaven, P.O. Box 425, Southaven, Mississippi 38671.                                                                       
                                                                                                                                                                                                
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
New York.............................  Bolton (town) Warren      Lake George..............................  Entire shoreline within community.........................         None         *321
                                        County.                                                                                                                                                 
                                                                                                                                                                                                
  Maps available for inspection at the Town of Bolton Zoning Office, Lakeshore Drive, Bolton, New York.                                                                                         
                                                                                                                                                                                                
  Send comments to Mr. Frank Dagles, Bolton Town Supervisor, P.O. Box 698, Bolton, New York 12814.                                                                                              
                                                                                                                                                                                                
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
New York.............................  Lake George (town)        Lake George..............................  Entire shoreline within community.........................         None         *321
                                        Warren County.                                                                                                                                          
                                                                                                                                                                                                
  Maps available for inspection at the Lake George Town Center, Old Post Road, Lake George, New York.                                                                                           
                                                                                                                                                                                                
  Send comments to Mr. Louis Tessier, Lake George Town Supervisor, Town Center, Old Post Road, Lake George, New York 12845.                                                                     
                                                                                                                                                                                                
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
New York.............................  Putnam (town) Washington  Lake George..............................  Entire shoreline within community.........................         None         *321
                                        County.                                                                                                                                                 
                                                                                                                                                                                                
  Maps available for inspection at the Putnam Town Clerk's Office, Route 22, Putnam Station, New York.                                                                                          
                                                                                                                                                                                                
  Send comments to Mr. John Lapointe, Supervisor of the Town of Putnam, Box 125, Lower Road, Putnam Station, New York 12861.                                                                    
                                                                                                                                                                                                
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
New York.............................  Queensbury (town) Warren  Glen Lake................................  Along entire shoreline....................................         None         *404
                                        County.                                                                                                                                                 
                                                                 Lake George..............................  Entire shoreline within community.........................         None         *321
                                                                 Rush Pond................................  Entire shoreline..........................................         None         *404
                                                                 Unnamed Ponding Area.....................  Area near I-87............................................         None         *404
  Maps available for inspection at the Office of the Town Clerk, 742 Bay Road, Queensbury, New York.                                                                                            
                                                                                                                                                                                                
  Send comments to Mr. Fred Champagne, Queensbury Town Supervisor, 742 Bay Road, Queensbury, New York 12804.                                                                                    
                                                                                                                                                                                                
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
New York.............................  Ticonderoga (town) Essex  Lake George..............................  Entire shoreline within community of Deland Point Road....         None         *321
                                        County.                                                                                                                                                 
                                                                                                                                                                                                

[[Page 56310]]
                                                                                                                                                                                                
  Maps available for inspection at the Ticonderoga Town Hall, 324 Champlain Avenue, Ticonderoga, New York.                                                                                      
                                                                                                                                                                                                
  Send comments to Mr. Michael J. Connery, Ticonderoga Town Supervisor, P.O. Box 471, Ticonderoga, New York 12883.                                                                              
                                                                                                                                                                                                
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
North Carolina.......................  Cary (town) Wake County.  Pine Lake................................  Entire shoreline of Pine Lake.............................         *384         *383
                                                                 lSwift Creek Tributary No. 7 (Basin 20,    Approximately 550 feet downstream of Lake Pine Drive......         *387         *383
                                                                  Stream 24) (Currently shown as Pine                                                                                           
                                                                  Lake).                                                                                                                        
                                                                                                            Approximately 1,275 feet downstream of Lake Pine Drive....         *384         *383
                                                                                                                                                                                                
  Maps available for inspection at the Engineering Department, 318 North Academy, Cary, North Carolina.                                                                                         
                                                                                                                                                                                                
  Send comments to Mr. Bill Coleman, Town Manager of the Town of Cary, P.O. Box 8005, Cary, North Carolina 27512-8005.                                                                          
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

(Catalog of Federal Domestic Assistance No. 83.100, ``Flood 
Insurance'')

    Dated: November 1, 1995.
Richard T. Moore,
Associate Director for Mitigation.
[FR Doc. 95-27656 Filed 11-07-95; 8:45 am]
BILLING CODE 6718-04-P

Complete official Federal Register PDF

FR Doc. 95-27648 Airworthiness Directives; Airbus Model A310 Series Airplanes
[Federal Register Volume 60, Number 216 (Wednesday, November 8, 1995)]
[Proposed Rules]
[Pages 56271-56274]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27648]

-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION
14 CFR Part 39

[Docket No. 95-NM-66-AD]

Airworthiness Directives; Airbus Model A310 Series Airplanes

AGENCY: Federal Aviation Administration, DOT.

ACTION: Notice of proposed rulemaking (NPRM).

-----------------------------------------------------------------------

SUMMARY: This document proposes the supersedure of an existing 
airworthiness directive (AD), applicable to all Airbus Model A310 
series airplanes, that currently requires inspections to detect cracks 
in the area of the shock absorber attachment at the top of the barrel 
at the main landing gear (MLG), a measurement of the gap between the 
barrel and the shock absorber attachment; and corrective action, if 
necessary. That AD was prompted by a report of the rupture of the aft 
hinge arm of the left MLG barrel. This action would require a 
measurement of the gap between the washer and barrel of the MLG, eddy 
current inspections to detect cracking of the MLG barrel, correction of 
any discrepancy, and accomplishment 

[[Page 56272]]
of certain other follow-on actions. Terminating actions would also be 
provided by this proposal. The actions specified by the proposed AD are 
intended to prevent collapse of the MLG.

DATES: Comments must be received by December 19, 1995.

ADDRESSES: Submit comments in triplicate to the Federal Aviation 
Administration (FAA), Transport Airplane Directorate, ANM-103, 
Attention: Rules Docket No. 95-NM-66-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 Airbus Industrie, 1 Rond Point Maurice Bellonte, 31707 
Blagnac Cedex, France; and Messier Services, 45635 Willow Pond Plaza, 
Sterling, Virginia 20164. This information may be examined at the FAA, 
Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, 
Washington.

FOR FURTHER INFORMATION CONTACT: Phil Forde, Aerospace Engineer, 
Standardization Branch, ANM-113, FAA, Transport Airplane Directorate, 
1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (206) 
227-2146; fax (206) 227-1149.

SUPPLEMENTARY INFORMATION:

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-66-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-66-AD, 1601 Lind Avenue, SW., Renton, Washington 
98055-4056.

Discussion

    On December 3, 1991, the FAA issued AD 91-22-52, amendment 39-8119 
(57 FR 5372, February 14, 1992), applicable to all Airbus Model A310 
series airplanes. That AD requires repetitive inspections of the main 
landing gear (MLG) to detect cracks in the area of the shock absorber 
attachment at the top of the barrel, and repair, if necessary; and a 
measurement of the gap between the barrel and the shock absorber 
attachment, and corrective action, if necessary. That action was 
prompted by a report of the rupture of the aft hinge arm of the left 
MLG barrel. The requirements of that AD are intended to prevent the 
collapse of the MLG.

Description of New Service Information

    Since the issuance of that AD, Messier Bugatti has issued Airbus 
A310 Service Bulletin 470-32-726, Revision 2, dated February 8, 1994. 
This service bulletin describes procedures for:
    1. Performing a measurement of the gap between the washer and 
barrel of the MLG;
    2. Coating the MLG barrel and shock absorber connecting rod nut 
with a rubber sealant, for certain airplanes;
    3. Performing a gap recovery procedure, and visual inspections to 
detect cracks of the MLG barrel, if the gap is equal to or greater than 
1 mm (0.04 in.);
    4. Replacing the barrel with a modified barrel, if any crack is 
detected, which eliminates the need for further inspections;
    5. Removing the rubber sealant;
    6. Performing an eddy current inspection to detect cracks of the 
MLG barrel; and
    7. Performing repetitive gap measurements, repetitive eddy current 
and visual inspections; or installing a new bushing and replacement of 
the bronze washer, if no cracks are detected following accomplishment 
of the eddy current inspection, which terminates the need for 
repetitive inspections.
    Accomplishment of the installation of a new bushing and replacement 
of the bronze washer, or the replacement of the barrel with a modified 
barrel will positively address the unsafe condition identified as the 
collapse of the MLG.
    The Direction Generale de l'Aviation Civile (DGAC), which is the 
airworthiness authority for France, classified Messier Bugatti Airbus 
A310 Service Bulletin 470-32-726, Revision 2, as mandatory and issued 
French airworthiness directive (CN) 91-234-127(B)R2, dated December 22, 
1993, in order to assure the continued airworthiness of these airplanes 
in France.

Description of the Proposed AD

    This airplane 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 airplanes of the same type design registered 
in the United States, the proposed AD would supersede AD 91-22-52 to 
completely revise the required actions.
    Paragraph (a) of the proposed AD would require a measurement of the 
gap between the washer and barrel of the main landing gear (MLG).
    Paragraph (b) of the proposed AD specifies actions that would be 
required if the gap measurement is within certain limits. These actions 
entail either no action, for certain airplanes; or coating the MLG 
barrel and shock absorber connecting rod nut with a rubber sealant, for 
other airplanes.
    Paragraph (c) of the proposed AD specifies actions that would be 
required if the gap measurement is outside of certain limits. These 
actions entail performing a gap recovery procedure and conducting 
repetitive visual inspections to detect cracks of the MLG barrel.
    Paragraph (d) of the proposed AD would require eddy current 
inspections to detect cracking of the MLG barrel. If no cracking is 
detected, operators would be required to perform various follow-on 
actions, which include repetitive gap measurements, eddy current 
inspections, and visual inspections; installation of a new bushing and 

[[Page 56273]]
replacement of the bronze washer with a stainless steel washer would 
terminate these actions. If cracking is detected, the barrel would be 
required to be replaced with a modified barrel, which would terminate 
any further action required by the AD.
    The proposed actions would be required to be accomplished in 
accordance with the Messier Bugatti Airbus A310 service bulletin 
described previously.

Differences Between the Proposed AD and Referenced Service Bulletin

    The FAA has determined that installation of a new bushing on crack-
free barrel having no oxidation of the cadmium plating may not ensure 
that the cadmium plating would not degrade and allow stress corrosion 
to occur. Table No. 3 of the referenced Messier Bugatti Airbus A310 
service bulletin recommends that these new bushing be installed at the 
next overhaul. However, the FAA finds that, since overhaul schedules 
vary from operator to operator, the next overhaul for some operators 
may not occur for several years. Therefore, operators should note that 
the requirements of paragraph (d) of the proposed AD would differ from 
the recommendations of the service bulletin in that, in lieu of that 
bushing installation, it would require either repetitive gap 
measurements and eddy current inspections at intervals not to exceed 2 
years, or installation of a new bushing and replacement of the bronze 
washer at the upper part of the MLG barrel with a stainless steel 
washer (which would terminate further inspections).

Economic Impact

    The FAA estimates that 18 airplanes of U.S. registry would be 
affected by this proposed AD.
    To accomplish the proposed gap measurements, visual inspections, 
and other follow-on actions would require approximately 5 work hours 
per airplane, at an average labor rate of $60 per work hour. Based on 
these figures, the total cost impact of these proposed actions on U.S. 
operators is estimated to be $5,400, or $300 per airplane, per cycle.
    To accomplish the proposed eddy current inspections would 
requireapproximately 8 work hours per airplane, at an average labor 
rate of $60 per work hour. Based on these figures, the total cost 
impact of these proposed inspections on U.S. operators is estimated to 
be $8,640, or $480 per airplane, per inspection cycle.
    Based on the figures discussed above, the total cost impact of this 
AD on U.S. operators is estimated to be $14,040, or $780 per airplane, 
per cycle. This total cost impact figure 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.

Regulatory Impact

    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 removing amendment 39-8119 (57 FR 
5372, February 14, 1992), and by adding a new airworthiness directive 
(AD), to read as follows:

Airbus Industrie: Docket 95-NM-66-AD. Supersedes AD 91-22-52, 
Amendment 39-8119.

    Applicability: Model A310 series airplanes on which Airbus 
Modification 1033 (reference Airbus Service Bulletin A310-32-2066, 
Revision 1, dated January 30, 1992) has not been installed; 
certificated in any category.

    Note 1: This AD applies to each airplane identified in the 
preceding applicability provision, regardless of whether it has been 
otherwise modified, altered, or repaired in the area subject to the 
requirements of this AD. For airplanes that have been modified, 
altered, or repaired so that the performance of the requirements of 
this AD is affected, the owner/operator must 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 collapse of the main landing gear (MLG), accomplish 
the following:
    (a) Perform a measurement of the gap between the washer and 
barrel at the times specified in paragraph (a)(1) or (a)(2) of this 
AD, as applicable, in accordance with Messier Bugatti Airbus A310 
Service Bulletin 470-32-726, Revision 2, dated February 8, 1994.
    (1) For airplanes equipped with MLG barrels applicable to Table 
No. 1 of the service bulletin: Perform the measurement within 8 days 
after the effective date of this AD.
    (2) For airplanes equipped with MLG barrels applicable to Table 
No. 2 of the service bulletin: Perform the measurement within 3 
months after the effective date of this AD.
    (b) If the gap measurement is less than 1 mm (0.04 in.): 
Accomplish either paragraph (b)(1) or (b)(2) of this AD, as 
applicable.
    (1) For airplanes equipped with MLG barrels applicable to Table 
No. 1 of the service bulletin: No further action is required by this 
paragraph for those airplanes.
    (2) For airplanes equipped with MLG barrels applicable to Table 
No. 2 of the service bulletin: Prior to further flight, coat the MLG 
barrel and shock absorber connecting rod nut with a rubber sealant 
in accordance with Messier Bugatti Airbus A310 Service Bulletin 470-
32-726, Revision 2, dated February 8, 1994.
    (c) If the gap is equal to or greater than 1 mm (0.04 in.): 
Accomplish paragraphs (c)(1), (c)(2), and (c)(3) of this AD, as 
applicable, in accordance with Messier Bugatti Airbus A310 Service 
Bulletin 470-32-726, Revision 2, dated February 8, 1994. 

[[Page 56274]]

    (1) For all airplanes: Within 15 days after accomplishing the 
measurement required by paragraph (a) of this AD, perform a gap 
recovery procedure in accordance with paragraph 2.B.(5) of the 
Accomplishment Instructions of the service bulletin.
    (2) For airplanes equipped with MLG barrels applicable to Table 
No. 2 of the service bulletin: Prior to further flight after 
accomplishing the gap recovery procedure required by paragraph 
(c)(1) of this AD, coat the MLG barrel and connecting rod nut with a 
rubber sealant in accordance with the service bulletin.
    (3) For all airplanes: Within 15 days after accomplishing the 
measurement required by paragraph (a) of this AD, perform a visual 
inspection to detect cracks of the MLG barrel, in accordance with 
paragraph 2.B.1 of the Accomplishment Instructions of the service 
bulletin.
    (i) If no crack is detected: Repeat the visual inspection 
thereafter at intervals not to exceed 7 days until the eddy current 
inspection required by paragraph (d) of this AD is accomplished.
    (ii) If any crack is detected: Prior to further flight, replace 
the MLG barrel with a barrel that has been modified in accordance 
with Messier Bugatti Service Bulletin 470-32-640, dated July 11, 
1988, and Messier Bugatti Service Bulletin 470-32-763, dated 
February 28, 1994. Accomplishment of this replacement shall be done 
in accordance with Messier Bugatti Airbus A310 Service Bulletin 470-
32-726, Revision 2, dated February 8, 1994. After accomplishment of 
this replacement, no further action is required by this AD.
    (d) Except as provided by paragraph (c)(3)(ii) of this AD (MLG 
barrel replacement): Following accomplishment of either paragraph 
(b) or (c) of this AD, and at the applicable times specified in 
Table No. 1 and Table No. 2 of Messier Bugatti Airbus A310 Service 
Bulletin 470-32-726, Revision 2, dated February 8, 1994, remove the 
rubber sealant and perform an eddy current inspection to detect 
cracks of the MLG barrel in accordance with Table No. 3 of that 
service bulletin.
    (1) If no crack is detected: At the times specified in Table No. 
3 of the service bulletin, perform the various follow-on actions in 
accordance with the service bulletin. (The follow-on actions include 
repetitive gap measurements, repetitive eddy current and visual 
inspections, installation of a new bushing, and replacement of the 
bronze washer with a stainless steel washer.)
    (i) However, in lieu of installing a new bushing on crack-free 
barrels having no oxidation of the cadmium plating at the next 
overhaul, as specified in the service bulletin, operators must 
either repeat the gap measurement and eddy current inspection at 
intervals not to exceed 2 years, or install a new bushing and 
replace the bronze washer at the upper part of the MLG barrel with a 
stainless steel washer, in accordance with the service bulletin.
    (ii) After accomplishment of the installation of a new bushing 
(reference Messier Bugatti Service Bulletin 470-32-640) and the 
replacement of the bronze washer (reference Messier Bugatti Service 
Bulletin 470-32-763), no further action is required by this AD.
    (2) If any crack is detected: Prior to further flight, replace 
the barrel with a barrel that has been modified in accordance with 
Messier Bugatti Service Bulletin 470-32-640, dated July 11, 1988, 
and Messier Bugatti Service Bulletin 470-32-763, dated February 28, 
1994. Accomplishment of this replacement shall be done in accordance 
with the Messier Bugatti Airbus A310 Service Bulletin 470-32-726, 
Revision 2, dated February 8, 1994. After accomplishment of this 
replacement, no further action is required by this AD.
    (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, Standardization Branch, ANM-113, 
FAA, Transport Airplane Directorate. Operators shall submit their 
requests through an appropriate FAA Principal Maintenance Inspector, 
who may add comments and then send it to the Manager, 
Standardization Branch, ANM-113.

    Note 2: Information concerning the existence of approved 
alternative methods of compliance with this AD, if any, may be 
obtained from the Standardization Branch, ANM-113.
    (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 November 2, 1995.
Darrell M. Pederson,
Acting Manager, Transport Airplane Directorate, Aircraft Certification 
Service.
[FR Doc. 95-27648 Filed 11-7-95; 8:45 am]
BILLING CODE 4910-13-U

Complete official Federal Register PDF

FR Doc. 95-27647 Airworthiness Directives; Airbus Model A320-231 Series Airplanes
[Federal Register Volume 60, Number 216 (Wednesday, November 8, 1995)]
[Proposed Rules]
[Pages 56270-56271]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27647]

-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION
14 CFR Part 39

[Docket No. 95-NM-89-AD]

Airworthiness Directives; Airbus Model A320-231 Series Airplanes

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 Airbus Model A320-231 
series airplanes. This proposal would require modification of the fire 
wall of each engine. This proposal is prompted by a report of a fire in 
the engine of an in-service airplane due to the fire wall being 
improperly sealed during production. The actions specified by the 
proposed AD are intended to prevent propagation of a fire through a gap 
(opening) in the fire wall in the event of an engine fire, as a result 
of improperly sealed fire wall.

DATES: Comments must be received by December 19, 1995.

ADDRESSES: Submit comments in triplicate to the Federal Aviation 
Administration (FAA), Transport Airplane Directorate, ANM-103, 
Attention: Rules Docket No. 95-NM-89-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 Airbus Industrie, 1 Rond Point Maurice Bellonte, 31707 
Blagnac Cedex, France. This information may be examined at the FAA, 
Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, 
Washington.

FOR FURTHER INFORMATION CONTACT: Charles Huber, Aerospace Engineer, 
Standardization Branch, ANM-113, FAA, Transport Airplane Directorate, 
1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (206) 
227-2589, fax (206) 227-1149.

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-89-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-89-AD, 1601 Lind Avenue, SW., Renton, Washington 
98055-4056.

Discussion

    The Direction Generale de l'Aviation Civile (DGAC), which is the 
airworthiness authority for France, recently notified the FAA that an 
unsafe condition may exist on certain Airbus Model A320-231 series 
airplanes. The DGAC advises that it has received a report of a fire in 
the engine of an in-service airplane. Investigation revealed that, 
during production, the fire wall was improperly sealed, which resulted 
in a gap (opening) in the fire wall. This condition, if not corrected, 
could result in propagation of a fire through the fire wall in the 
event of an engine fire.
    Airbus has issued A320-78-1009, dated October 14, 1993, which 
describes procedures for modification of the fire wall of each engine. 
The modification entails installation of a seal assembly (consisting of 
a bracket and bulb seal) 

[[Page 56271]]
on the end of the pylon heat shield. This modification will seal the 
gap (opening) in the fire wall between the areas in zone 1 and zone 2, 
thus creating a fire barrier for both engines. The DGAC classified this 
service bulletin as mandatory and issued French airworthiness directive 
94-167-057 (B), dated July 20, 1994, in order to assure the continued 
airworthiness of these airplanes in France.
    This airplane 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 airplanes of the same type design registered 
in the United States, the proposed AD would require modification of the 
fire wall of each engine. The actions would be required to be 
accomplished in accordance with the service bulletin described 
previously.
    The FAA estimates that 108 airplanes of U.S. registry would be 
affected by this proposed AD, that it would take approximately 2 work 
hours per airplane to accomplish the proposed actions, and that the 
average labor rate is $60 per work hour. Required parts would be 
supplied by the manufacturer at no cost to operators. Based on these 
figures, the total cost impact of the proposed AD on U.S. operators is 
estimated to be $12,960, or $120 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.

39.13  [Amended]

    2. Section 39.13 is amended by adding the following new 
airworthiness directive:

Airbus Industrie: Docket 95-NM-89-AD.

    Applicability: Model A320-231 series airplanes on which Airbus 
Modification 23929 (reference Airbus Service Bulletin A320-78-1009) 
has not been installed, certificated in any category.

    Note 1: This AD applies to each airplane identified in the 
preceding applicability provision, regardless of whether it has been 
otherwise modified, altered, or repaired in the area subject to the 
requirements of this AD. For airplanes that have been modified, 
altered, or repaired so that the performance of the requirements of 
this AD is affected, the owner/operator must use the authority 
provided in paragraph (b) 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 propagation of a fire through a gap (opening) in the 
fire wall as a result of an improperly sealed fire wall in the event 
of an engine fire, accomplish the following:
    (a) Within 9 months after the effective date of this AD, modify 
the fire wall of each engine in accordance with Airbus Service 
Bulletin A320-78-1009, dated October 13, 1993.
    (b) An alternative method of compliance or adjustment of the 
compliance time that provides an acceptable level of safety may be 
used if approved by the Manager, Standardization Branch, ANM-113, 
FAA, Transport Airplane Directorate. Operators shall submit their 
requests through an appropriate FAA Principal Maintenance Inspector, 
who may add comments and then send it to the Manager, 
Standardization Branch, ANM-113.

    Note 2: Information concerning the existence of approved 
alternative methods of compliance with this AD, if any, may be 
obtained from the Standardization Branch, ANM-113.

    (c) Special flight permits may be issued in accordance with 
sections 21.197 and 21.199 of the Federal Aviation Regulations (14 
CFR 21.197 and 21.199) to operate the airplane to a location where 
the requirements of this AD can be accomplished.

    Issued in Renton, Washington, on November 2, 1995.
Darrell M. Pederson,
Acting Manager, Transport Airplane Directorate, Aircraft Certification 
Service.
[FR Doc. 95-27647 Filed 11-7-95; 8:45 am]
BILLING CODE 4910-13-U

Complete official Federal Register PDF

FR Doc. 95-27646 Airworthiness Directives; Saab Model SAAB SF340A and SAAB 340B Series Airplanes
[Federal Register Volume 60, Number 216 (Wednesday, November 8, 1995)]
[Proposed Rules]
[Pages 56274-56276]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27646]

-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION
14 CFR Part 39

[Docket No. 95-NM-79-AD]

Airworthiness Directives; Saab Model SAAB SF340A and SAAB 340B 
Series Airplanes

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 Saab Model SAAB SF340A and 
SAAB 340B series airplanes. This proposal would require repetitive 
operational tests of the valve limit switch of the propeller brake. 
This proposal also provides for an optional terminating action for the 
repetitive tests. This proposal is prompted by a report that when the 
propeller brake was not properly engaged the crew did not receive a 
``PROP BRAKE'' warning due to a faulty valve limit switch. The actions 
specified by the proposed AD are intended to prevent a valve limit 
switch from failing to send input to the warning system; absence of a 
``PROP BRAKE'' warning could result in the crew being unaware that the 
propeller brake is not properly engaged and the propeller may turn 
without warning.

DATES: Comments must be received by December 19, 1995.

ADDRESSES: Submit comments in triplicate to the Federal Aviation 
Administration (FAA), Transport Airplane Directorate, ANM-103, 
Attention: Rules Docket No. 95-NM-79-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 SAAB Aircraft AB, SAAB Aircraft Product Support, S-
581.88, Linkoping, Sweden. This information may be examined at the FAA, 
Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, 
Washington.

FOR FURTHER INFORMATION CONTACT: Ruth Harder, Aerospace Engineer, 
Standardization Branch, ANM-113, FAA, Transport Airplane Directorate, 
1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (206) 
227-1721; fax (206) 227-1149.

SUPPLEMENTARY INFORMATION:

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 

[[Page 56275]]
must submit a self-addressed, stamped postcard on which the following 
statement is made: ``Comments to Docket Number 95-NM-79-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-79-AD, 1601 Lind Avenue, SW., Renton, Washington 
98055-4056.

Discussion

    The Luftfartsverket (LFV), which is the airworthiness authority for 
Sweden, recently notified the FAA that an unsafe condition may exist on 
certain Saab Model SAAB SF340A and SAAB 340B series airplanes. The LFV 
advises that it has received a report indicating that the flightcrew of 
one airplane did not receive a ``PROP BRAKE'' warning when the 
propeller brake was not properly engaged. The ``PROP BRAKE'' warning 
indicates that there is insufficient [below 2,350 pounds per square 
inch (psi)] hydraulic pressure to engage the propeller brake. 
Investigation revealed that this failure was caused by a failure mode 
in the valve limit switch of the propeller brake system. If a valve 
limit switch is faulty, no input would be sent the warning system; this 
situation could result in the flightcrew being unaware that the 
propeller brake is not properly engaged and the propeller may turn 
without warning.
    Saab has issued Service Bulletin SAAB 340-61-032, Revision 1, dated 
June 30, 1995, which describes procedures for repetitive operational 
tests of the valve limit switch of the propeller brake. The LFV 
classified this service bulletin as mandatory and issued Swedish 
airworthiness directive (SAD) 1-064, Revision 1, effective date March 
24, 1995, in order to assure the continued airworthiness of these 
airplanes in Sweden.
    Saab has also issued Service Bulletin SAAB 340-61-033, dated March 
6, 1995, which describes procedures for replacement of the propeller 
brake control unit having part number (P/N) HP1410100-3, -5, or -7 with 
a new propeller brake control unit having P/N HP1410100-10, and an 
operational test. Accomplishment of this replacement eliminates the 
need for the repetitive operational tests. The new propeller brake 
control unit has an improved low pressure valve limit switch installed 
in it to ensure that its inputs are received by the warning system. The 
LFV approved the technical content of this service bulletin.
    These airplane models are manufactured in Sweden and are 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 LFV has kept the FAA informed of 
the situation described above. The FAA has examined the findings of the 
LFV, 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 airplanes of the same type design registered 
in the United States, the proposed AD would require repetitive 
operational tests of the valve limit switch of the propeller brake. The 
proposed AD also provides for the optional replacement of certain 
propeller brake control units with a new unit, which would constitute 
terminating action for the repetitive test requirements. The actions 
would be required to be accomplished in accordance with the service 
bulletins described previously.
    The FAA estimates that 23 airplanes of U.S. registry would be 
affected by this proposed AD.
    It would take approximately 1 work hour per airplane to accomplish 
the proposed operational tests, at an average labor rate of $60 per 
work hour. Based on these figures, the total cost impact of the actions 
that would be required by this AD on U.S. operators is estimated to be 
$1,380, or $60 per airplane, per test cycle. This total cost impact 
figure 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:

SAAB Aircraft AB: Docket 95-NM-79-AD.

    Applicability: Model SAAB SF340A series airplanes, having serial 
numbers 004 through 159 inclusive; and Model SAAB 340B series 
airplanes, having serial numbers 160 through 369 inclusive; on which 
the propeller brake system is connected; certificated in any 
category.

    Note 1: This AD applies to each airplane identified in the 
preceding applicability provision, regardless of whether it has been 
otherwise modified, altered, or repaired in the area subject to the 
requirements of this AD. For airplanes that have been modified, 
altered, or repaired so that the performance of the requirements of 
this AD is affected, the owner/operator must use the authority 
provided in paragraph (d) 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 a valve limit switch from failing to send input to 
the ``PROP BRAKE'' warning system, which could result in the crew 
being 

[[Page 56276]]
unaware that the propeller brake is not properly engaged and the 
propeller may turn without warning, accomplish the following:
    (a) Within 100 flight hours after the effective date of this AD, 
perform an operational test of the valve limit switch of the 
propeller brake in accordance with Saab Service Bulletin SAAB 340-
61-032, Revision 1, dated June 30, 1995. Repeat the test thereafter 
at intervals not to exceed 100 flight hours.
    (b) Replacement of a propeller brake control unit having part 
number (P/N) HP1410100-3, -5, or -7 with a new propeller brake 
control unit having P/N HP1410100-10, and performance of an 
operational test, in accordance with SAAB Service Bulletin SAAB 340-
61-033, dated March 6, 1995. constitutes terminating action for the 
repetitive inspections required by paragraph (a) of this AD.
    (c) As of the effective date of this AD, no person shall install 
on any airplane a propeller brake control unit having P/N HP1410100-
3; or any unit having P/N HP1410100-5 or -7 unless that unit has 
been modified in accordance with SAAB Service Bulletin SAAB 340-61-
033, dated March 6, 1995.
    (d) An alternative method of compliance or adjustment of the 
compliance time that provides an acceptable level of safety may be 
used if approved by the Manager, Standardization Branch, ANM-113, 
FAA, Transport Airplane Directorate. Operators shall submit their 
requests through an appropriate FAA Principal Maintenance Inspector, 
who may add comments and then send it to the Manager, 
Standardization Branch, ANM-113.

    Note 2: Information concerning the existence of approved 
alternative methods of compliance with this AD, if any, may be 
obtained from the Standardization Branch, ANM-113.

    (e) Special flight permits may be issued in accordance with 
sections 21.197 and 21.199 of the Federal Aviation Regulations (14 
CFR 21.197 and 21.199) to operate the airplane to a location where 
the requirements of this AD can be accomplished.

    Issued in Renton, Washington, on November 2, 1995.
Darrell M. Pederson,
Acting Manager, Transport Airplane Directorate, Aircraft Certification 
Service.
[FR Doc. 95-27646 Filed 11-7-95; 8:45 am]
BILLING CODE 4910-13-U

Complete official Federal Register PDF

FR Doc. 95-27640 Electoral College Expenditures
[Federal Register Volume 60, Number 216 (Wednesday, November 8, 1995)]
[Proposed Rules]
[Pages 56268-56269]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27640]

=======================================================================
-----------------------------------------------------------------------

FEDERAL ELECTION COMMISSION

11 CFR Part 9002

[Notice 1995-17]

Electoral College Expenditures

AGEncY: Federal Election Commission.

ACTION: Notice of Disposition of Petition for Rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Commission announces its disposition of a Petition for 
Rulemaking filed on November 18, 1994, by Anthony F. Essaye and William 
Josephson. The petition addressed treatment of a presidential 
candidate's receipts or disbursements regarding the Electoral College 
process and the process of electing the President and Vice President by 
the United States House of Representatives. The 

[[Page 56269]]
Commission has decided not to initiate a rulemaking on this topic at 
this time.

DATES: November 8, 1995.

FOR FURTHER INFORMATION CONtACT: Ms. Susan E. Propper, Assistant 
General Counsel, 999 E Street, N.W., Washington, D.C. 20463, (202) 219-
3690 or (800) 424-9530.

SUPPLEMENTARY INFORMATION: On November 18, Anthony F. Essaye and 
William Josephson filed a petition for rulemaking seeking to clarify 
whether a presidential candidate's receipts or disbursements regarding 
the Electoral College process and the process of electing the President 
and Vice President by the United States House of Representatives are 
governed by the Federal Election Campaign Act [``FECA''], 2 U.S.C. 431 
et seq., or the Presidential Election Campaign Fund Act [``the Fund 
Act''], 26 U.S.C. 9001 et seq. The particular question raised was 
whether such disbursements count against publicly funded presidential 
candidates' general election expenditure limits established at 2 U.S.C. 
441a(b)(1) and (c).
    The Commission published a Notice of Availability [``NOA''] on Dec. 
8, 1994. 59 F.R. 63274. The Commission received comments from the 
Internal Revenue Service and the Republican National Committee in 
response to the NOA.
    The NOA stated that the Commission might incorporate the issues 
addressed in the rulemaking petition into a larger, then-ongoing 
rulemaking regarding the public funding of presidential primary and 
general election campaigns. However, the Commission subsequently 
decided to address these issues in a separate rulemaking document. 60 
F.R. 31854 (June 16, 1995).
    One commenter argued that the Commission does not have jurisdiction 
over the Electoral College and, therefore, neither the FECA nor the 
Fund Act applies to these expenditures. However, the Commission has the 
authority, and responsibility, to oversee a publicly funded candidate's 
qualified campaign expenses. This includes the responsibility to insure 
that any expenditures made to further a candidate's campaign for 
election, including those made in connection with the meeting of the 
Electoral College, are properly categorized and reported.
    Commission regulations at 11 CFR 100.2(a) define ``election'' as 
``the process by which individuals . . . seek nomination for election, 
or election, to Federal office.'' Under U.S. Const. art. II, sec. 1 and 
amend. XII, the meeting of the Electoral College, as well as any 
subsequent action by the House of Representatives that might become 
necessary to decide a presidential election, are part of that process. 
Similarly, under the Fund Act ``qualified campaign expense'' is defined 
for purposes of the general election as any expenditure ``[i]ncurred by 
the candidate of a political party for the office of President to 
further his election to such office.'' 26 U.S.C. 9002(11)(A), 11 CFR 
9002.11(a). The Commission believes that many expenditures incurred in 
connection with the meeting of the Electoral College and/or subsequent 
action by the House of Representatives fall within these definitions.
    The petition cites the exclusions from the definitions of 
``contribution'' and ``expenditure'' at 11 CFR 100.7(b)(20) and 
100.8(b)(20) of those disbursements made in connection with election 
contests and recounts as one basis for treating Electoral College 
expenses as outside the scope of both the FECA and the Fund Act. 
However, these exemptions refer to election contests and recounts, 
i.e., procedures that may be necessary to determine which candidate 
received the greatest number of votes in that state, not to Electoral 
College activity.
    The petition also argues that, since the Electoral College always 
meets more than 30 days after the November general election, the end of 
the general election ``expenditure report period'' established at 26 
U.S.C. 9002(12), the Fund Act does not apply to expenses incurred in 
connection with the Electoral College vote. The Electoral College meets 
on the first Monday after the second Wednesday in December, 3 U.S.C. 7; 
while the November general election is held on the Tuesday after the 
first Monday in November, 3 U.S.C. 1.
    In response to this argument, the Commission notes that in most 
instances a strategy for dealing with Electoral College concerns will 
likely be developed well before the general election, if it appears a 
close contest is in the offing, and almost certainly before the end of 
the expenditure report period. The Commission believes that many of 
these expenses may appropriately be considered qualified campaign 
expenses for purposes of the Fund Act.
    Also, the fact that an expense occurs more than 30 days after the 
November general election does not in and of itself mean that it is not 
covered by the Fund Act. For example, the Commission's regulations at 
11 CFR 9004.4(a)(4)(i) permit a candidate to make disbursements for the 
purpose of defraying winding down costs for a potentially lengthy 
period after the general election.
    On the other hand, the Commission recognizes that a potentially 
close Electoral College vote and/or subsequent action by the House of 
Representatives may generate unanticipated expenses at a time when 
campaigns will likely have already spent or budgeted nearly all of 
their available general election funds.
    This situation has not arisen since the enactment of the FECA and 
the Fund Act. It is difficult to anticipate all the potential issues 
that should be addressed in a rulemaking of this nature. The Commission 
believes the better approach is to deal with these issues on a case by 
case basis when and if they arise, rather than trying to promulgate 
general rules that may or may not prove appropriate in dealing with 
particular circumstances. Therefore, at its open meeting of November 2, 
1995, the Commission voted not to initiate a rulemaking at this time on 
treatment of a presidential candidate's receipts or disbursements 
regarding the Electoral College process and the process of electing the 
President and Vice President by the United States House of 
Representatives.

    Dated: November 3, 1995.
Lee Ann Elliott,
Vice Chairman.
[FR Doc. 95-27640 Filed 11-7-95; 8:45 am]
BILLING CODE 6715-01-M

Complete official Federal Register PDF

FR Doc. 95-27610 Approval and Promulgation of Implementation Plans; Illinois
[Federal Register Volume 60, Number 216 (Wednesday, November 8, 1995)]
[Proposed Rules]
[Pages 56279-56280]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27610]

=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[IL113-1-6760b; FRL-5324-8]

Approval and Promulgation of Implementation Plans; Illinois

AGENCY: Environmental Protection Agency (USEPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: On May 5, 1995, and May 31, 1995, the State of Illinois 
submitted a State Implementation Plan (SIP) revision request to the 
United States Environmental Protection Agency (USEPA) for lithographic 
printing as part of the State's 15 percent (%) Rate of Progress Plan 
control measures for Volatile Organic Matter (VOM) emissions. The USEPA 
proposes to approve Illinois' request. In the final rules section of 
this Federal Register, the USEPA is approving this action as a direct 
final rule without prior proposal because USEPA views this as a 
noncontroversial action and anticipates no adverse comments. A detailed 
rationale for the approval is set forth in the direct final rule. If no 
adverse comments are received in response to that direct final rule, no 
further activity is contemplated in relation to this proposed rule. If 
USEPA receives adverse comments, the direct final rule 

[[Page 56280]]
will be withdrawn and all public comments received will be addressed in 
a subsequent final rule based on the proposed rule. USEPA will not 
institute a second comment period on this action. Any parties 
interested in commenting on this notice should do so at this time.

DATES: Comments on this proposed rule must be received on or before 
December 8, 1995.

ADDRESSES: Written comments should be mailed to: J. Elmer Bortzer, 
Chief, Regulation Development Section, Regulation Development Branch 
(AR-18J), U.S. Environmental Protection Agency, Region 5, 77 West 
Jackson Boulevard, Chicago, Illinois 60604.
    Copies of the State submittal and USEPA's analysis of it are 
available for inspection at: Regulation Development Section, Regulation 
Development Branch (AR-18J), U.S. Environmental Protection Agency, 
Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604.

FOR FURTHER INFORMATION CONTACT: David Pohlman, Regulation Development 
Section, Regulation Development Branch (AR-18J), U.S. Environmental 
Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, 
Illinois 60604, (312) 886-3299.

SUPPLEMENTARY INFORMATION: For additional information see the direct 
final rule published in the rules section of this Federal Register.

    Dated: October 11, 1995.
Valdas V. Adamkus,
Regional Administrator.
[FR Doc. 95-27610 Filed 11-7-95; 8:45 am]
BILLING CODE 6560-50-P

Complete official Federal Register PDF

FR Doc. 95-27595 Regulations for the Relicensing of Hydroelectric Projects
[Federal Register Volume 60, Number 216 (Wednesday, November 8, 1995)]
[Proposed Rules]
[Pages 56278-56279]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27595]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Chapter I

[Docket No. RM95-16-000]

Regulations for the Relicensing of Hydroelectric Projects

October 31, 1995.
AGENCY: Federal Energy Regulatory Commission DOE.

ACTION: Petition for rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Federal Energy Regulatory Commission is issuing 
notification that, on July 10, 1995, the National Hydropower 
Association filed a petition for rulemaking that proposes revisions in 
the Commission's procedures for processing applications for new 
licenses (relicensing) of hydroelectric projects, the licenses for 
which are expiring. The Commission invites all interested persons to 
file comments on the petition as well as the potential applicability 
and usefulness in this proceeding of negotiated rulemaking procedures 
or other means of reaching consensual resolution of the issues 
presented by this filing.

DATES: Comments are due on or before January 5, 1996; reply comments 
are due on or before February 2, 1996.

ADDRESSES: Federal Energy Regulatory Commission, 888 First Street, 
N.E., Washington, D.C. 20426.

FOR FURTHER INFORMATION CONTACT: Barry Smoler, Office of the General 
Counsel, (202) 208-1269.

SUPPLEMENTARY INFORMATION: On July 10, 1995, the National Hydropower 
Association (NHA) filed a petition for rulemaking in the above-
captioned docket. The petition proposes revisions in the Commission's 
procedures for processing applications for new licenses (relicensing) 
of hydroelectric projects, the licenses for which are expiring. NHA 
states that, in preparing the petition, it consulted extensively with 
the Hydropower Reform Coalition and numerous governmental and private 
entities.
    The Commission invites all interested persons to file comments on 
the petition. The comments may address any and all substantive and 
procedural aspects of NHA's proposal. In addition, the Commission would 
welcome comment from NHA, the Hydropower Reform Coalition, governmental 
agencies, and all other interested persons with respect to the 
potential applicability to and usefulness in this proceeding of 
negotiated rulemaking procedures \1\ or other means of reaching 
consensual resolution of the issues presented by this filing.\2\

    \1\ See the Negotiated Rulemaking Act of 1900, 5 U.S.C. Sec. 561 
et seq.
    \2\ See e.g., Advance Notice of Proposed Rulemaking, Standards 
for Business Practices of Interstate Natural Gas Pipelines, Docket 
No. RM96-1-000, 73 FERC para. 61,104 (October 25, 1995).
---------------------------------------------------------------------------

    Copies of NHA's petition are available for review in the Reference 
and Information Center, Room 2A, of the Commission's Offices at 888 
First Street, N.E., Washington, D.C. 20426.
    Comments on the petition must be filed no later than January 5, 
1996. Reply comments responsive to the initial comments may be filed no 
later than February 2, 1996. An original and 14 copies of comments 
should be filed with Lois D. Cashell, Secretary, Federal Energy 
Regulatory Commission, 888 First Street, N.E., Washington, D.C. 20426, 
and should refer to Docket No. 

[[Page 56279]]
RM95-16-000. For further information, contact Barry Smoler at (202) 
208-1269.
Lois D. Cashell,
Secretary.
[FR Doc. 95-27595 Filed 11-7-95; 8:45 am]
BILLING CODE 6717-01-M

Complete official Federal Register PDF

FR Doc. 95-27576 Radio Broadcasting Services; Berlin, MD
[Federal Register Volume 60, Number 216 (Wednesday, November 8, 1995)]
[Proposed Rules]
[Pages 56310-56311]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27576]

-----------------------------------------------------------------------

FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73

[MM Docket No. 95-68; RM-8629]

Radio Broadcasting Services; Berlin, MD

AGENCY: Federal Communications Commission.

ACTION: Proposed rule; dismissal.

-----------------------------------------------------------------------

SUMMARY: This action dismisses a petition for rule making filed by John 
P. Gillen requesting the allotment of Channel 235A at Berlin, Maryland. 
See 60 FR 27471, May 24, 1995. The proposal for Berlin, Maryland, was 
found to be technically defective as the only site meeting the 
Commission's spacing requirements is located in the Chinocoteague Bay. 
Since there is no usable site on land that also meets the Commission's 
spacing requirements for Channel 235A at Berlin, we are dismissing the 
Notice in this proceeding. With this action, this proceeding is 
terminated.

FOR FURTHER INFORMATION CONTACT: Kathleen Scheuerle, Mass Media Bureau, 
(202) 418-2180.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report 
and Order, MM Docket No. 95-68, adopted October 25, 1995, and released 
November 2, 1995. The full text of this Commission decision is 
available for inspection and copying during normal business hours in 
the Commission's Reference Center (Room 239), 1919 M Street, NW., 
Washington, DC. The complete text of this decision may also be 
purchased from the Commission's copy contractors, International 
Transcription Services, Inc., 2100 M Street, NW., Suite 140, 
Washington, DC. 20037, (202) 857-3800.

List of Subjects in 47 CFR Part 73

    Radio broadcasting.

[[Page 56311]]

Federal Communications Commission.
John A. Karousos,
Chief, Allocations Branch, Policy and Rules Division, Mass Media 
Bureau.
[FR Doc. 95-27576 Filed 11-7-95; 8:45 am]
BILLING CODE 6712-01-F

Complete official Federal Register PDF

FR Doc. 95-27574 Radio Broadcasting Services; Elberton, GA
[Federal Register Volume 60, Number 216 (Wednesday, November 8, 1995)]
[Proposed Rules]
[Page 56310]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27574]

=======================================================================
-----------------------------------------------------------------------

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 73

[MM Docket No. 95-165; RM-8703]

Radio Broadcasting Services; Elberton, GA

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Commission requests comments on a petition filed by Chase 
Communications seeking the allotment of Channel 286A to Elberton, GA, 
as the community's second local FM service. Channel 286A can be 
allotted to Elberton in compliance with the Commission's minimum 
distance separation requirements with a site restriction of 12.4 
kilometers (7.7 miles) north, at coordinates 33-59-59 North Latitude 
and 82-51-36 West Longitude, to avoid short-spacings to Stations WCCP-
FM, Channel 285A, Clemson, SC, and WHEL, Channel 286A, Helen, GA.

DATES: Comments must be filed on or before December 26 , 1995, and 
reply comments on or before January 10, 1996.

ADDRESSES: Federal Communications Commission, Washington, DC 20554. In 
addition to filing comments with the FCC, interested parties should 
serve the petitioner, or its counsel or consultant, as follows: Gordon 
K. Van Mol, Chase Communications, 804 Alcovy Way, Lawrenceville, GA 
30243 (Petitioner).

FOR FURTHER INFORMATION CONTACT: Leslie K. Shapiro, Mass Media Bureau, 
(202) 418-2180.

SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's 
Notice of Proposed Rule Making, MM Docket No. 95-165, adopted October 
13, 1995, and released November 2, 1995. The full text of this 
Commission decision is available for inspection and copying during 
normal business hours in the FCC Reference Center (Room 239), 1919 M 
Street, NW., Washington, DC. The complete text of this decision may 
also be purchased from the Commission's copy contractor, International 
Transcription Services, Inc., (202) 857-3800, 2100 M Street, NW., Suite 
140, Washington, DC 20037.
    Provisions of the Regulatory Flexibility Act of 1980 do not apply 
to this proceeding.
    Members of the public should note that from the time a Notice of 
Proposed Rule Making is issued until the matter is no longer subject to 
Commission consideration or court review, all ex parte contacts are 
prohibited in Commission proceedings, such as this one, which involve 
channel allotments. See 47 CFR 1.1204(b) for rules governing 
permissible ex parte contacts.
    For information regarding proper filing procedures for comments, 
see 47 CFR 1.415 and 1.420.

List of Subjects in 47 CFR Part 73

    Radio broadcasting.

Federal Communications Commission.
John A Karousos,
Chief, Allocations Branch, Policy and Rules Division, Mass Media 
Bureau.
[FR Doc. 95-27574 Filed 11-7-95; 8:45 am]
BILLING CODE 6712-01-F

Complete official Federal Register PDF

FR Doc. 95-27562 National Vaccine Injury Compensation Program: Revisions and Additions to the Vaccine Injury TableII
[Federal Register Volume 60, Number 216 (Wednesday, November 8, 1995)]
[Proposed Rules]
[Pages 56289-56300]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27562]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Public Health Service

42 CFR Part 100

RIN 0905-AE52

National Vaccine Injury Compensation Program: Revisions and 
Additions to the Vaccine Injury Table--II

AGENCY: Health Resources and Services Administration, PHS, HHS.

ACTION: Notice of proposed rulemaking; findings.

-----------------------------------------------------------------------

SUMMARY: The Secretary has made findings as to certain illnesses and 
conditions that can reasonably be determined in some circumstances to 
be caused or significantly aggravated by certain vaccines. Based on 
these findings, the Secretary proposes to amend the Vaccine Injury 
Table (Table) by regulation under section 313 of the National Childhood 
Vaccine Injury Act of 1986 and section 2114 (c) and (e) of the Public 
Health Service Act (the Act).
    These proposed regulations would have effect only for petitions for 
compensation under the National Vaccine Injury Compensation Program 
(VICP) filed after the new regulations become effective.

DATES: Comments must be submitted on or before May 6, 1996. A public 
hearing on this proposed rule will be held before the end of the public 
comment period. A separate notice will be published in the Federal 
Register to provide the details of this hearing.

ADDRESSES: Written comments should be addressed to Fitzhugh Mullan, 
M.D., Director, Bureau of Health Professions (BHPr), Health Resources 
and Services Administration (HRSA), Room 8-05, Parklawn Building, 5600 
Fishers Lane, Rockville, Maryland 20857. All comments received will be 
available for public inspection and copying at the Office of Research 
and Planning, BHPr, Room 8-67, Parklawn Building, at the above address 
weekdays (Federal holidays excepted) between the hours of 8:30 a.m. and 
5:00 p.m.

FOR FURTHER INFORMATION CONTACT: Geoffrey Evans, M.D., Chief Medical 
Officer, Division of Vaccine Injury Compensation, BHPr, (301) 443-4198 
or David Benor, Senior Attorney, Office of the General Counsel, (301) 
443-2006.

SUPPLEMENTARY INFORMATION: On August 14, 1992, the Secretary published 
in the Federal Register (57 FR 36878) findings as to the illnesses and 
conditions that can reasonably be determined in some circumstances to 
be caused or significantly aggravated by certain vaccines. Based on 
these findings, the Secretary proposed to amend the Vaccine Injury 
Table (Table) by regulation pursuant to section 312 of the National 
Childhood Vaccine Injury Act of 1986 and section 2114(c) of the Public 
Health Service Act (the Act). After consideration of comments on the 
proposed rule, the Secretary published a final rule in the Federal 
Register on February 8, 1995 (60 FR 7678). The Secretary indicated in 
the preamble to that rule that further modifications to 

[[Page 56290]]
the Vaccine Injury Table would be made as new scientific evidence 
became available regarding the causal relationship between certain 
vaccines and various adverse events. Pursuant to section 313 of the 
National Childhood Vaccine Injury Act of 1986 and section 2114(c) of 
the Act, the Secretary arranged for a second study, again to be 
conducted by the Institute of Medicine (IOM) of the National Academy of 
Sciences. This study, entitled Adverse Events Associated with Childhood 
Vaccines: Evidence Bearing on Causality, covers those vaccines not 
addressed in the IOM's section 312 Report. (Institute of Medicine. 
Stratton KR, Howe CJ, Johnston RB, eds. Adverse Events Associated with 
Childhood Vaccines: Evidence Bearing on Causality. Washington, D.C. 
National Academy Press; 1994) This Notice of Proposed Rulemaking (NPRM) 
addresses modifications to the Vaccine Injury Table as a result of this 
latest IOM report.
    The National Childhood Vaccine Injury Act of 1986, title III of 
Pub. L. 99-660 (42 U.S.C. 300aa-10 et seq.), established a Federal 
compensation program for persons thought to be injured by vaccines. 
Petitions for compensation under this Program are filed with the United 
States Court of Federal Claims, with a copy served on the Secretary, 
who is denominated the ``Respondent.'' The Court, acting through 
Special Master, makes findings as to eligibility for, and amount of, 
compensation.
    In order to gain an award under this program, the petitioner must 
establish a vaccine-related injury or death, either by showing an event 
which is presumed to be caused by a vaccine or by proving causation in 
fact. In some cases, the petitioner may simply demonstrate the 
occurrence of what has been referred to as a ``Table injury.'' That is, 
it may be shown that the vaccine recipient suffered an injury of the 
type enumerated in section 2114(a) of the Act (42 U.S.C. 300aa-14(a))--
the ``Vaccine Injury Table''--corresponding to the vaccination in 
question, and that the onset of such injury took place within a time 
period from the vaccination also specified in the Table. If so, the 
Table injury was in effect presumed to have been caused by the 
vaccination, and the petitioner was automatically entitled to 
compensation (assuming that various jurisdictional requirements were 
satisfied), unless it was affirmatively shown that the injury was 
caused by some factor other than the vaccination (see secs. 
2111(c)(1)(C)(i), 2113(a)(1)(B)), and 2114(a) of the Act). Congress 
recognized that the Table initially set forth in the statute inevitably 
would compensate some individuals whose injuries were not actually 
caused by the vaccine. Congress was willing to accept some such 
inaccuracy for simplicity's sake, and in order to ensure compensation 
of most persons actually injured by the enumerated vaccines.
    The legislative history states:

    ``The Committee recognizes that there is public debate over the 
incidence of illnesses that coincidentally occur within a short time 
of vaccination. The Committee further recognizes that the deeming of 
vaccine-relatedness adopted here may provide compensation to some 
children whose illness is not, in fact, vaccine-related. The 
Committee anticipates that the research on vaccine injury and 
vaccine safety now ongoing and mandated by this legislation will 
soon provide more definitive information about the incidence of 
vaccine injury and that, when such information is available, the 
Secretary or the Advisory Commission on Childhood Vaccines * * * may 
propose to revise the Table, as provided below in Section 2114 
[Initial Table]. Until such time, however, the Committee has chosen 
to provide compensation to all persons whose injuries meet the 
requirements of the petition and the Table and whose injuries cannot 
be demonstrated to be caused by other factors.'' [H.R. Rept. 99-908, 
Part 1, September 26, 1986, page 18 (or as found in 1986 U.S. Code 
Cong. and Admin. News, Vol. 6, page 6359)].

    Since the enactment of the statute, there have been serious 
concerns about the degree to which the assumptions underlying the 
Vaccine Injury Table were founded in science, and concerns that 
substantial numbers of petitions were being compensated inappropriately 
because they are being compensated for non-vaccine-related injuries. 
Indeed, when it first enacted the statute creating this Program, 
Congress mandated reviews to be undertaken by the IOM with the express 
purpose of providing a better scientific rationale for any presumptions 
of vaccine causation. Under section 312 of Pub. L. 99-660, Congress 
mandated that the IOM review the scientific literature and other 
information on specific adverse consequences of pertussis and rubella 
vaccines. The 312 Report is discussed extensively in the Final Rule 
published on February 8, 1995 (60 FR 7678). Under section 313 of Pub. 
L. 99-660, Congress mandated that the IOM conduct a similar review 
regarding the risks associated with those pediatric vaccines not 
covered by the 312 Report.

Section 313 Report

    The Institute of Medicine conducted this second review, and 
released its report in late 1993 (hereinafter ``313 Report''). The 
committee charged with undertaking this review consisted of fourteen 
members with expertise in the following fields: immunology, pediatrics, 
internal medicine, infectious diseases, neurology, virology, 
microbiology, epidemiology, and public health. The committee met six 
times over the course of 18 months, and reviewed more than 7,000 
abstracts of scientific and medical studies. They read over 2,000 
published books and articles, analyzed information from the U.S. Public 
Health Service Vaccine Adverse Events Reporting System, and considered 
additional material submitted by interested parties. The committee did 
not perform any original research. See 313 Report, Executive summary, 
pp. 3-4.
    The IOM Committee undertook the task of judging whether, based on 
available evidence, a causal relationship exists between each adverse 
event examined and exposure to vaccines against the following diseases: 
diphthteria, measles, mumps, poliomyelitis, tetanus, hepatitis B, and 
hemophilus influenzae type b (Hib). Vaccines for hepatitis B and 
hemophilus influenzae type b (Hib) were not mandated by Congress to be 
part of the section 313 study; however, because these vaccines are now 
mandated for inclusion in the Vaccine Injury Compensation Program, the 
Secretary asked the IOM to address these vaccines as well. See section 
2114(e) of the Act, as added by section 13632(a)(2) of the Omnibus 
Budget Reconciliation Act (OBRA) of 1993, Pub. L. 103-66, which is 
discussed fully below.)
    As with the 312 Report, the IOM used a classification system to 
categorize their conclusions about the strength of a causal 
association. These categories are as follows:

    1. No evidence bearing on a causal relation.
    2. The evidence is inadequate to accept or reject a causal 
relation.
    3. The evidence favors rejection of a causal relation.
    4. The evidence favors acceptance of a causal relation.
    5. The evidence establishes a causal relation.

    After release of the IOM 313 Report in December 1993, the Advisory 
Commission on Childhood Vaccines (ACCV) recommended that the Secretary 
convene a task force of experts to review the conclusions of the IOM 
committee and to consider appropriate changes to the Vaccine Injury 
Table. Accordingly, on March 15, 1994, an ad hoc subcommittee of the 
National Vaccine Advisory Committee (NVAC) (see section 2105 of the 
Act) met to review the 313 Report. This subcommittee meeting included 
members of the NVAC, representatives from the 

[[Page 56291]]
Advisory Committee on Immunization (ACIP), the ACCV, the Food and Drug 
Administration's Vaccine Related Biological Products Advisory 
Committee, the Academy of Pediatrics Committee on Infectious Diseases 
(the ``Redbook'' committee), and appropriate Public Health Services 
(PHS) staff. Where appropriate, the subcommittee also solicited the 
views of experts in the area of childhood vaccines. The subcommittee 
concurred with the IOM's conclusions in almost all cases. The 
subcommittee did not agree with the IOM's conclusions in six specific 
areas which will be discussed, as appropriate, in the individual 
vaccine sections below.
    Following the NVAC Subcommittee's review, the ACCV, whose 
membership, by statutory directive, reflects a variety of views 
relating to childhood immunizations (section 2119 of the Act), 
considered the proposed changes to the Vaccine Injury Table at its 
September and December 1994 meetings. The ACCV deliberations included 
public policy considerations, whereas the NVAC charge was to consider 
only the scientific issues raised by the existing Table, the recent IOM 
report, and other scientific information.
    The Secretary has examined the recommendations of the NVAC 
Subcommittee, and of the ACCV, and proposes that the Table set forth at 
42 CFR 100.3 be revised as described below. As described above, the 
process for developing proposals for changing the Table in response to 
the 313 report is very similar to that undertaken with respect to the 
312 Report. In both cases, the Department solicited the views of the 
two key advisory committees that are charged with making 
recommendations to the Department regarding vaccine safety and the 
vaccine compensation program. Making recommendations to change the 
Table involves the difficult task of balancing scientific concerns and 
public policy concerns. The Department's overall goal, consistent with 
Congress' intent in enacting the VICP, is to provide just and fair 
compensation to those individuals who experience adverse events that 
can reasonably be determined to have been caused by the covered 
vaccines. The Department views its role as requiring consideration of 
public policy concerns, as well as the purely scientific data, in 
translating these determinations into decisions to change the Table. 
Another important consideration in proposing changes to the Table is 
the need to make the Table as easy to understand and as clear as 
possible. With this goal in mind, the Department is proposing to revise 
the Qualifications and Aids to Interpretation which may be used by the 
Special Masters in understanding when a particular set of symptoms is 
consistent with a particular Table injury. The Department welcomes 
comments regarding the clarity of the proposed Qualifications and Aids 
to Interpretation. As provided in section 2114(c)(4), the new table 
will apply only to petitions filed under the Program after the 
effective date of the final regulation.
    In addition, this NPRM includes changes to the Table based on the 
requirements of the Omnibus Budget Reconciliation Act of 1993, Pub. L. 
103-66, which required, in part, that the Secretary amend the Table to 
include additional vaccines which have been recommended for routine 
administration to children. Specifically, this Act added a new section 
2114(e) to the National Childhood Vaccine Injury Act of 1986. This 
section now reads as follows:

    (e) ADDITIONAL VACCINES--
    (1) VACCINES RECOMMENDED BEFORE AUGUST 1, 1993--
    By August 1, 1995, the Secretary shall revise the Vaccine Injury 
Table included in subsection (a) to include--
    (A) vaccines which are recommended to the Secretary by the 
Centers for Disease Control and Prevention (CDC) before August 1, 
1993, for routine administration to children,
    (B) the injuries, disabilities, illnesses, conditions and deaths 
associated with such vaccines, and
    (C) the time period in which the first symptoms or 
manifestations of onset or other significant aggravation of such 
injuries, disabilities, illnesses, conditions, and deaths associated 
with such vaccines may occur.
    (2) VACCINES RECOMMENDED AFTER AUGUST 1, 1993--When after August 
1, 1993, the Centers for Disease Control and Prevention (CDC) 
recommends a vaccine to the Secretary for routine administration to 
children, the Secretary shall, within 2 years of such 
recommendation, amend the Vaccine Injury Table included in 
subsection (a) to include--
    (A) vaccines which were recommended for routine administration 
to children,
    (B) the injuries, disabilities, illnesses, conditions, and 
deaths associated with such vaccines, and
    (C) the time period in which the first symptoms or 
manifestations of onset or other significant aggravation of such 
injuries, disabilities, illnesses, conditions, and deaths associated 
with such vaccines may occur.

    Based on the requirements of this section, the Department proposes 
to add to the Table hepatitis B and Hib vaccines. In addition, in order 
to create an efficient and streamlined method of adding additional 
vaccines to the Table, as required by section 2114(e)(2) above, the 
Department proposes to add to the Table now a general category for any 
new vaccine that in the future is recommended by CDC for routine 
administration to children, upon indication to the Secretary that a 
particular vaccine has been recommended. Accordingly, once Congress 
enacts an excise tax to cover that vaccine, the vaccine will be covered 
under the VICP. Until specified injuries are added to the Table through 
the rulemaking process, individuals who receive newly recommended 
vaccines will not receive a presumption of causation, but will instead 
be eligible to receive compensation upon proving causation in fact. 
Consistent with the general process for amending the Table, once the 
Department determines that specific adverse events have been associated 
with newly recommended vaccines, the Department will propose further 
changes to the Vaccine Injury Table in order to confer the appropriate 
presumption of causation.
    Based on the requirements of the Administrative Procedure Act, the 
Department publishes a Notice of Proposed Rulemaking in the Federal 
Register before a regulation is promulgated. The public is invited to 
submit comments on this proposed rule. In addition, a public hearing 
will be held for this proposed rule. After the public comment period 
has expired, the Department will publish the final rule in the Federal 
Register. The Comments received on the proposed rule and the 
Department's responses to the comments will be addressed in the 
preamble to the final regulation.

Guidelines

    Section 313 requires that the Secretary establish guidelines based 
on the results of the 313 Report ``respecting the administration'' of 
the vaccines that were reviewed, which guidelines shall include:

    ``(i) the circumstances under which any such vaccine should not 
be administered,
    (ii) the circumstances under which administration of any such 
vaccine should be delayed beyond its usual time of administration, 
and
    (iii) the groups, categories, or characteristics of potential 
recipients of such vaccine who may be at significantly higher risk 
of major adverse reactions to such vaccine than the general 
population of potential recipients.''

The establishment of these guidelines will be undertaken as a separate 
activity from this rulemaking.

Findings

    Section 313, unlike section 312, does not require that the 
Secretary make specific findings as to the ``illnesses or conditions * 
* * that can reasonably 

[[Page 56292]]
be determined in some circumstances to be caused or significantly 
aggravated'' by the vaccines under review, or ``the circumstances under 
which such causation or aggravation can reasonably be determined to 
occur.'' Nevertheless, the Department has concluded that these 
determinations are the appropriate framework for making changes to the 
Table as a result of the 313 Report. Accordingly, the findings below 
and the proposed Table that follows are based on these determinations. 
For some Table changes, the ``circumstances under which * * * causation 
or aggravation can reasonably be determined to occur'' are reflected in 
the terms of the Table itself (e.g., vaccine strain polio infection in 
immunodeficient individuals); for others, the circumstances are 
reflected in the Qualifications and Aids to Interpretation that 
accompany the Table (e.g., thrombocytopenic purpura for vaccines to 
prevent measles).
    The Secretary makes the following findings:
    1. The scientific evidence favors acceptance of a causal 
relationship between vaccines containing tetanus toxoid and brachial 
neuritis.
    2. The scientific evidence is insufficient to accept or reject a 
causal relationship between vaccines containing tetanus toxoid and 
Guillain Barre Syndrome (GBS). While there may be a causal relationship 
in extremely rare cases, the Secretary is unable to identify the 
circumstances in which the vaccine causes the condition.
    3. The scientific evidence favors rejection of a causal 
relationship between vaccines containing tetanus toxoid and 
encephalopathy.
    4. The scientific evidence is insufficient to accept or reject a 
causal relationship between vaccines containing tetanus toxoid and 
residual seizure disorder.
    5. The scientific evidence indicates a causal relationship between 
vaccines to prevent measles and (a) thrombocytopenic purpura and (b) 
measles vaccine-strain viral infection in immunodeficient individuals.
    6. The scientific evidence is insufficient to accept or reject a 
causal relationship between vaccines to prevent measles and residual 
seizure disorder.
    7. The scientific evidence is insufficient to accept or reject a 
causal relationship between polio live virus (OPV) and Guillain-Barre 
Syndrome (GBS).
    8. The scientific evidence indicates a causal relationship between 
OPV and vaccine-strain polio viral infection.
    9. The scientific evidence indicates a causal relationship between 
hepatitis B vaccine and anaphylaxis.
    10. The scientific evidence favors acceptance of a causal 
relationship between Hib vaccine (unconjugated, polyribosylribitol 
phosphate (PRP) vaccine only) and early-onset Hib disease.

Discussion of Proposed Table Changes

    The following proposed revision of the Table and the related 
Qualifications and Aids to Interpretation takes into account the 
recommendations of the ACCV and the NVAC Subcommittee. These two 
outside reviewing bodies have based their recommendations primarily on 
the IOM Report as well as other relevant scientific information. Set 
forth below is a discussion of each proposed change to the Table, 
including an explanation of the rationale for the change. Where the 
Department proposes to amend the Table in a manner inconsistent with 
the recommendations of the ACCV, there is specific discussion of the 
basis for such proposal; for all other proposed changes, the ACCV 
concurred with the proposals.
    The Department notes that the removal of a condition from the 
Table, or the inclusion of a revised definition thereof, will not 
necessarily result in compensation being denied where it would 
previously have been awarded. Rather, the result will be that a 
presumption of causation will no longer apply. Petitioners may still 
prevail by providing proof of causation in fact.
    The Department is proposing to use different categories for the 
Table itself from those set forth in the initial statutory Table or in 
the revised Table set forth in the regulations at 42 CFR 100.3. Rather 
than combine different vaccines, such as DTP and DT in the same 
category, the Department is proposing to identify groups of vaccines by 
a primary antigen. Thus, one category will be vaccines to prevent 
pertussis, which would include P, DTP, DTaP, and other combination 
vaccines one of whose components is pertussis. Similarly, vaccines to 
prevent rubella would include MMR, MR, and R.

I. Tetanus Toxoid-Containing Vaccines

A. Guillain-Barre Syndrome

    Guillain-Barre syndrome, or acute inflammatory demyelinating 
polyneuropathy, is a well-described neurologic disorder marked by an 
initially progressive motor paralysis. While the illness may be life-
threatening, recovery is usually complete after weeks or months. Based 
on a great deal of data gathered since the entity was clearly 
delineated 75 years ago, it is thought that this disorder is immune-
mediated and targets peripheral nerves.
    Over half of all patients with GBS have a history of a preceding 
acute infectious illness, either respiratory or gastrointestinal, in 
the 1 to 4 weeks prior to the onset of neuropathic symptoms. Several 
infectious agents, including both bacterial (e.g., Campylobacter jejuni 
and Mycoplasma pneumoniae) and viral [e.g., Epstein-Barr virus, human 
immunodeficiency virus (HIV), and cytomegalovirus] ones, are associated 
with GBS.
    Vaccinations in general are infrequent antecedent events in 
patients with GBS, probably occurring in less than 1 to 5 percent of 
all cases. GBS is known to occur following the administration of rabies 
vaccine produced from the nervous tissue of infected animals, and there 
were more than expected GBS cases in this country following the massive 
effort in 1976-77 to immunize the populace against a threatened 
pandemic of swine influenza. While the experience with rabies and swine 
influenza vaccines is well-documented, a causal relation, if one 
exists, between tetanus toxoid and GBS is not so self-evident. The 
Institute of Medicine did conclude that the evidence favors a causal 
relation between tetanus toxoid and GBS, and by extension that it 
favors a causal relation between vaccines containing tetanus toxoid, 
DT, Td, DTP and DTaP. A subcommittee of the National Vaccine Advisory 
Committee was divided on the question of causality, voting by only a 6 
to 5 margin to concur with the IOM's conclusion as to causality between 
tetanus toxoid-containing vaccines and GBS; the subcommittee 
recommended unanimously that GBS not be added to the Vaccine Injury 
Table.
    The IOM based its Category 4 conclusion (``The Evidence Favors 
Acceptance of a Causal Relation'') on an assessment of biologic 
plausibility and on case reports. One case in particular, that of a 42-
year-old man who experienced three separate bouts of a GBS-like illness 
after tetanus immunizations and later had further relapses without 
antecedent immunizations of any sort, was relied on very heavily as 
evidence that there was more than a theoretical possibility of GBS 
brought on by tetanus immunizations (Pollard JD, Selby G. Relapsing 
neuropathy due to tetanus toxoid: report of a case. Journal of 
Neurological Science 1978;37:113-125). The significance of this case 
and other evidence was debated by the NVAC 

[[Page 56293]]
Subcommittee before it made its recommendations.
    CDC presented data to the NVAC Subcommittee from epidemiologic 
studies on this issue available since the IOM review. These large 
population studies showed that there was no increased risk of GBS after 
tetanus toxoid-containing vaccines in either adults or children. These 
findings suggest that while certain individuals may have a predilection 
for GBS after various triggers (including vaccination), such 
individuals are extremely rare.
    The ACCV recommended by a 5 to 4 vote to add GBS to the Table as a 
recognized Table injury for tetanus toxoid-containing vaccines and that 
the Aids to Interpretation be designed to exclude from the presumption 
of causation cases which are not vaccine-related. There are no biologic 
markers or other means, however, to distinguish the very rare cases of 
vaccine-related GBS from the far more common cases of GBS due to other 
causes. As noted above, the one case primarily relied upon by the IOM 
was one which, due to the multiple occurrences of GBS following 
vaccination, could be found compensable under the causation in fact 
standard. Indeed, the VICP has compensated one individual for GBS 
following receipt of tetanus toxoid vaccine based on this causation in 
fact approach.
    The Department has evaluated the comments of the NVAC Subcommittee 
and of the ACCV and has determined not to propose the addition of GBS 
to the Table. While the isolated cases of GBS following tetanus toxoid-
containing vaccines do indicate biologic plausibility for causation, 
the results of CDC studies demonstrate that there is no measurable 
increase in risk of this condition following vaccination. (Chen R, Kent 
J, Rhodes P, Simon P, Schonberger L. Investigation of a possible 
association between influenza vaccination and Guillain-Barre syndrome 
in the United States, 1990-1991 (abstract); Post Marketing Surveillance 
1992; 6:5-6.) Indeed, the IOM noted that ``no estimate of incidence or 
relative risk is available. It would seem to be low.'' (IOM Report, p. 
89.) Thus, to add this condition to the Table would almost certainly 
result in compensating an inordinate number of non-vaccine-related 
cases for the extremely rate vaccine-related case. The Department has 
concluded that the condition should not be given a presumption of 
causation but should be addressed instead under the causation in fact 
standard.

B. Brachial Neuritis

    Brachial neuritis, alternatively known as brachial plexus 
neuropathy and by other names, such as neuralgic amyotrophy, was first 
linked to vaccination or administration of antiserum a half century 
ago. It has also been reported after various infections and concurrent 
with other diseases, as well as after trauma, but in the majority of 
cases there is no history of antecedent illness or immunization. This 
acute onset peripheral nerve disorder usually begins with a deep, often 
severe aching pain in the shoulder and upper arm. The pain is followed 
in days or weeks by weakness and atrophy in upper extremity muscle 
groups. Sensory loss may accompany the motor deficits, but is generally 
a less notable clinical feature. Recovery is complete in most cases, 
though it may require more than a year for full return of function. The 
IOM concluded that while the evidence is inadequate to accept or reject 
a causal relation between tetanus toxoid, DT, or Td and peripheral 
neuropathy (other than those caused by direct intraneural injection), 
there is biologic plausibility that vaccines could cause brachial 
neuritis. Taking into account biologic plausibility along with 
published case reports and uncontrolled observational studies (Tsairis 
P, Dyck PJ, Mulder DW. Natural history of brachial plexus neuropathy: 
report on 99 patients. Archives of Neurology 1972; 27:109-117) (Beghi 
E, Kurland LT, Mulder DW, Nicolosi A. Brachial plexus neuropathy in the 
population of Rochester, Minnesota, 1970-1981. Annals of Neurology 
1985; 18:320-323) of brachial neuritis after receipt of tetanus toxoid, 
from which a relative risk on the order of 5 to 10 was estimated, the 
IOM viewed the evidence as favoring acceptance of a causal relation 
between all tetanus toxoid-containing vaccines and brachial neuritis.
    A subcommittee of the National Vaccine Advisory Committee concurred 
with the IOM conclusion as to causality and recommended the addition of 
this condition to the Vaccine Injury Table. Citing the rarity of 
brachial neuritis in children, this panel left open the possibility of 
including an age-range qualifier to its recommendation that the 
condition be added to the Table.
    The series reported in 1972 by Tsairis and colleagues included a 
case of brachial neuritis in a 3-month-old infant 3 days after a DTP 
immunization; and in 1973, Martin and Weintraub reported a case of 
brachial neuritis in a 5-month-old boy 2 days after he received in the 
thigh his first does of DTP, with resolution of the neuritis within 48 
hours. (Martin GI, Weintraub MI. Brachial neuritis and seventh nerve 
palsy: a rare hazard of DPT vaccination. Clinical Pediatrics 1973; 
12:506-507.) In view of these reported cases of brachial plexopathy in 
infants after receipt of tetanus toxoid-containing vaccines (DTP), and 
a paucity of data about incidence according to age, the Department has 
decided to add brachial plexopathy to the Vaccine Injury Table without 
any age-range qualifier.
    Based on the published literature and case reports, the Department 
is proposing a time of onset between 2 and 28 days. The proposed 
Qualifications and Aids to Interpretation are designed to define this 
condition under new paragraph (b)(7) and to rule out other conditions 
for which there has been no finding of a causal relation to the 
vaccine.

C. Encephalopathy

    The IOM concluded that the evidence favors rejection of a causal 
relation between DT, Td, or tetanus toxoid and either acute or chronic 
encephalopathy. A subcommittee of the National Vaccine Advisory 
Committee concurred with the IOM conclusion as to causality and 
recommended the removal of this condition from the Vaccine Injury 
Table. The ACCV concurred. Accordingly, the Department proposes to 
delete this condition from the Table.

D. Residual Seizure Disorder

    The Department has already taken regulatory action, based on the 
section 312 review, to delete the condition of residual seizure 
disorder (RSD) from the Table for vaccines containing tetanus toxoid. 
See 42 CFR 100.3, as amended at 60 FR 7694. The additional findings 
from the section 313 Report provide further support for this action. 
Accordingly, the Department is setting forth a discussion of the 
additional findings from the IOM that are relevant to this decision.
    The Institute of Medicine concluded that the evidence favors 
rejection of a causal relation between DT and infantile spasms, and is 
inadequate to accept or reject a causal relation between DT and 
residual seizure disorder other than infantile spasms. The IOM also 
viewed the evidence as inadequate to accept or reject a causal relation 
between tetanus toxoid or Td and residual seizure disorder. These 
conclusions paralleled its earlier conclusions about infantile spasms 
(``favors rejection of a causal relation'') and residual seizure 
disorder (``inadequate to accept or reject a causal relation'') for 
DTP.
    While the IOM may not have felt that it had adequate evidence to 
reject a 

[[Page 56294]]
causal relationship between tetanus toxoid, DT, or Td and residual 
seizure disorder, except in the special case of infantile spasms, it 
cited no evidence suggestive of a causal relationship. Indeed, the 
evidence adduced, which included data from three uncontrolled 
observational studies, could reasonably be interpreted as favoring 
rejection of a causal relationship. (Pollock TM, Morris J. A 7-year 
survey of disorders attributed to vaccination in North West Thames 
region. Lancet 1983; 1:753-757) (Pollock TM, Miller E, Mortimer, JY, 
Smith G. Symptoms after primary immunization with DTP and with DT 
vaccine. Lancet 1984; 2:146-149) (Pollock TM, Miller E, Mortimer JY, 
Smith G. Post-vaccination symptoms following DTP and DT vaccination. 
Developments in biological standardization. 1985; 61:407-410) (Hirtz 
DG, Nelson KB, Ellenberg JH. Seizures following childhood 
immunizations. Journal of Pediatrics 1983; 102:14-18)
    All three studies reported on relatively large numbers of children 
(>200,000 in all) and did identify some who did experience seizures 
sometime after primary or booster DT immunizations. Of those who 
experienced seizures, almost all their seizures either: (1) Were 
isolated events (i.e., did not experience further seizures before 
observational period ended); (2) occurred in the face of fever or 
intercurrent illness and were without manifest neurologic residua; (3) 
occurred well after the receipt of vaccine (e.g., two individuals with 
convulsions at 22- and 24-days post-immunization, respectively); (4) 
happened in the face of a significant prior neurologic history (e.g., 
``several months earlier he had sustained a skull fracture in a car 
accident and had been in a coma but had apparently recovered''); or (5) 
took place under some combination of these special circumstances. Of 
the Hertfordshire experience reported by Pollock et al. (1984 and 
1985), the IOM said, ``That study did not show any evidence for 
residual seizure disorder de novo following receipt of DT.''
    Clearly, whether the evidence is interpreted as inadequate to 
decide for or against a causal relation between these tetanus toxoid-
containing vaccines (i.e., T, DT, and Td) and residual seizure 
disorders, or as sufficient to favor rejection, there is no support for 
a claim that there is a causal relationship, or that one is at all 
likely. The Department has therefore determined that residual seizure 
disorder cannot reasonably be determined in some circumstances to be 
caused or significantly aggravated by tetanus toxoid-containing 
vaccines.

II. Vaccines to Prevent Rubella

    In the final rule recently issued after consideration of the 
section 312 IOM report, the Department added chronic arthritis as a 
Table injury for vaccines against rubella. (60 FR 7694-7695.) The 
Department also promulgated in the Qualifications and Aids to 
Interpretation criteria for determining when chronic arthritis would be 
given a presumption that the vaccine caused the condition.
    Faced with petitions filed under the Program alleging that 
arthritis was caused in fact by the rubella vaccine, the Court of 
Federal Claims developed criteria for determining when to compensate 
such petitions. In an order dated January 11, 1993, a Special Master of 
the Court set forth criteria for such a determination. The Special 
Master did so after hearing expert testimony from witnesses 
representing the fields of rheumatology, virology and infectious 
disease.
    The Department concludes that it is appropriate to reconcile the 
Special Master's criteria with the criteria in the final rule, to the 
extent possible. Accordingly, the Department has undertaken to evaluate 
the Special Master's criteria for possible use in revised 
Qualifications and Aids to Interpretation, as well as in the time 
period for onset of the symptoms of arthritis set forth in the Table of 
Injuries.
    The Special Master's criteria are quoted below:
    ``1. The petitioner in fact had a rubella vaccination, at a time 
when the petitioner was 18 years or older.
    ``2. The petitioner had a history, over a period of at least three 
years prior to the vaccination, of freedom from any sort of persistent 
or recurring polyarticular joint symptoms.
    ``3. The petitioner has developed an antibody response to the 
rubella virus.
    ``4. The petitioner experienced the onset of polyarticular 
arthropathic symptoms during the period between one and six weeks after 
the vaccination.
    ``5. Polyarticular arthropathic symptoms continued for at least six 
months after the onset; or, if symptoms remitted after the acute stage, 
polyarticular arthropathic symptoms recurred within one year of such 
remission.
    ``6. There is an absence of another good explanation for the 
arthropathy; the petitioner has not received a confirmed diagnosis of 
rheumatoid arthritis, nor a diagnosis of any of a number of other 
specified conditions.''
    The Department has decided to propose incorporating into the Table 
and Aids to Interpretation elements of criteria 2, 3, and 4. That 
portion of criterion 2 that refers to a 3-year period without symptoms 
prior to vaccination is accepted and is proposed to be added in 
introductory paragraph (b)(6)(i); the portion of criteria 2 and 4 
referring to polyarticular joint symptoms is not accepted, as the 
Department believes that objective signs of arthropathy (joint disease) 
are necessary. The Department does not agree with criterion 1, the age 
qualifier, as it would establish an arbitrary age of onset which is not 
supported by the current medical literature. Criterion 4 specifies a 
time of onset after vaccination from between 1 and 6 weeks. The final 
rule pursuant to the section 312 report specified a time of onset from 
0-42 days. On review of the relevant medical literature and expert 
testimony, the Department believes that the evidence would not support 
a finding of causation with onset before the seventh day after rubella 
vaccination. Accordingly, the Department proposes to change the period 
for the first symptom or manifestation of onset of chronic arthritis in 
the Table itself to be between 7-42 days as reflected in revised 
paragraph (b)(6)(i)(A).
    For the most part, criteria 5 and 6 are already part of the rule 
adopted pursuant to the section 312 report. No further changes are 
proposed in this regard.
    The Department does not agree, however, with the Court's inclusion 
of arthralgia (joint pain) as evidence of arthropathic symptoms. Based 
on medical expert testimony and other related scientific information, 
the Department continues to believe that arthralgia alone, in the 
absence of objective signs of arthritis, should not be viewed as 
evidence of rubella vaccine-related chronic arthritis. Furthermore, the 
Department is proposing to add paragraph (b)(6)(i)(C) that ``medical 
documentation of an antibody response to the rubella virus'' is 
required.
    Although criterion 6 does not list fibromyalgia as an alternative 
diagnosis for purposes of determining eligibility for compensation, a 
recent Court decision (Johnson v. Secretary, HHS, No. 92-478V), 
concluded that fibromyalgia is a condition unrelated to rubella 
vaccination. Accordingly, the Department proposes to add fibromyalgia 
in paragraph (b)(6)(ii) to the list of conditions which will not be 
given a presumption of vaccine causation.

[[Page 56295]]

III. Vaccines to Prevent Measles

A. Thrombocytopenic Purpura

    In children, most cases of immune (idiopathic) thrombocytopenia 
purpura (ITP) are self-limited disorders that follow a viral infection, 
most commonly a nonspecific respiratory infection. Viral antigen is 
thought to trigger synthesis of antibody that reacts with virus 
antigen, and then the antibody-antigen complex is bound to receptors on 
the platelet surface. Immune thrombocytopenic purpura often produces 
petechiae, purpura, and mucosal bleeding. The associated symptoms of 
petechiae, purpura and mucosal bleeding are generally only seen when 
the platelet counts are less than 50,000/mm 3 (thrombocytopenia is 
defined as a platelet count less than 150,000/mm 3). Red and white 
blood cells are normal in ITP. Acute thrombocytopenia in children 
rarely becomes chronic, that is, lasting more than 6 months. Chronic 
thrombocytopenic purpura is thought to be related to an underlying 
autoimmune disorder and not to be the result of a viral vaccination or 
viral infection.
    The Institute of Medicine (IOM) concluded that the evidence 
establishes a causal relation between MMR and immune thrombocytopenia 
and a causal relation between MMR and death from complications 
associated with severe thrombocytopenia. The conclusions of the IOM 
were based on biologic plausibility, case series, uncontrolled 
observational studies (e.g., Nieminen U, Peltola H, Syrjala MT, 
Makipernaa A, Kekomaki R. Acute thrombocytopenic purpura following 
measles, mumps and rubella vaccination: a report on 23 patients. Acta 
Paediatrica 1993; 82:267-270) and the controlled observational study by 
Oski and Naiman (Oski FA, Naiman JL. Effect of live measles vaccine on 
the platelet count. New England Journal of Medicine 1996; 275:352-356). 
The study by Oski and Naiman reported on the occurrence of immune 
thrombocytopenia after the administration of the Edmonston B measles 
vaccine, a vaccine which is no longer used in the United States. In 
this controlled observational study, the maximum depression of the 
platelet count was noted at 1 week post-immunization (although a 
decrease in platelet count could be seen by 3 days post-immunization), 
and platelet counts return to preimmunization levels generally by 3 
weeks post-immunization. In the study by Nieminen and colleagues, 23 of 
approximately 700,000 children immunized over an 8-year period were 
found to have thrombocytopenia after immunization with MMR vaccine. The 
platelet count reached its nadir at 21 days (median) post-immunization, 
with purpura appearing at 17 days (median) post-immunization. The IOM 
thought that it was biologically plausible that the MMR vaccine could 
cause immune thrombocytopenia. The NVAC Subcommittee concurred with the 
IOM conclusion, but because the ITP that was observed after vaccination 
with MMR was relatively benign with complete recovery in less than 6 
months, recommended against the addition of this disease to the Vaccine 
Injury Table. While cases with full recovery is less than 6 months will 
not be eligible for compensation (see section 2111(c)(1)(D)(i) of the 
Act), the rare case with continuing complications should be eligible 
for a presumption of causation. Thus, the Department proposes that 
thrombocytopenic purpura be added to the Vaccine Injury Table.
    The Department's proposal is based on the IOM conclusion of 
biologic plausibility of immune thrombocytopenia occurring after MMR 
vaccination, the possible risk to injury from that thrombocytopenia, 
and the necessity to clarify the clinical aspects of thrombocytopenia 
that should be compensable. Conditions that can cause thrombocytopenia 
or are associated with thrombocytopenia, but are not related to immune 
thrombocytopenia associated with MMR vaccination, are listed in the 
Qualifications and Aids to Interpretation as noncompensable conditions. 
This list of conditions is not exhaustive. A 7- to 30-day timeframe of 
onset is proposed as the period for a Table injury. This timeframe is 
largely based on the 1993 uncontrolled study by Nieminen and 
colleagues.
    The ACCV voted to concur with the proposal to add thrombocytopenic 
purpura to the Table but requested some clarification and changes to 
the proposed Qualifications and Aids to Interpretation. The reference 
to a bone marrow examination now includes the phrase ``if performed'' 
in response to concerns from ACCV members that this test may not have 
been used in rare cases. Some ACCV members were concerned about the 
reference to ``viral infections'' and suggested that examples of 
viruses that cause immune thrombocytopenia be listed. The Department 
has accepted this suggestion but notes that while some examples are 
listed, it would not be practical to list all viral etiologies of 
immune thrombocytopenia. Thrombocytopenic purpura is proposed to be 
added under paragraph (b)(8).

B. Residual Seizure Disorder

    The IOM placed Residual Seizure Disorder (RSD) in Category #2 
(``insufficient evidence'') for monovalent measles, and multivalent 
measles and mumps vaccines, and Category #1 (``no evidence'') for mumps 
vaccine alone. Information from case reports, case series, and 
uncontrolled observational studies, seems to indicate that most 
seizures following measles immunization are ``febrile seizures'' and, 
therefore, are not expected to lead to recurrent seizures or epilepsy. 
There were no controlled studies identified by the IOM. Unlike 
encephalopathy following measles immunization, there is no apparent 
biologic plausibility for RSD. Furthermore, there is no apparent 
biologic plausibility for RSD. Furthermore, there is little evidence 
that seizures, in the absence of acute encephalopathy, can lead to 
chronic encephalopathy or any clinical manifestation such as RSD.
    Both the 1991 and 1994 NVAC Ad Hoc Subcommittees commented on this 
issue. The former endorsed the removal of RSD, noting the lack of 
research or clinical data supporting this as a Table condition. Since 
its removal went significantly beyond the scope of the changes proposed 
by the PHS Task Force on the Vaccine Injury Compensation Program based 
on the section 312 IOM Report, the Secretary decided to defer removal 
awaiting publication of the section 313 IOM Report. Three years later, 
similar viewpoints were expressed by the NVAC Subcommittee. The 
Subcommittee unanimously recommended removal of any condition now 
present on the Table that was placed in Category #2 by the section 313 
IOM. Residual Seizure Disorder fits this criterion, and therefore, the 
legal presumption of causation is proposed to be removed from the 
Table.
    The ACCV voted 5 to 4 to retain RSD as a Table injury for MMR (and 
components thereof) vaccines. Some members felt that the IOM did not 
cite evidence strong enough to delete from the Table an injury that 
Congress had placed thereon. Some felt that there would be potential 
disruption of the Program if new data emerge showing that there is a 
causal relation for this condition. One member raised a concern about 
the number of cases now pending under the Program citing this Table 
injury. Furthermore, a member expressed concern that the U.S. Court of 
Federal Claims would make it more difficult for a petitioner to prove 
causation in fact for this condition if it is removed from the Table. 
Another 

[[Page 56296]]
member felt it would be unwise to remove the condition prior to 
publication of the final Qualifications and Aids to Interpretation for 
``encephalopathy'' under the section 312 rule.
    The Department has given careful consideration to the issues raised 
by the ACCV. As indicated above, the evidence is insufficient for the 
Secretary to conclude that the condition can reasonably be determined 
in some cases to be caused or aggravated by the MMR vaccine. This is 
true regardless of the inclusion of the condition on the initial 
statutory Table of Injuries and regardless of the number of cases filed 
under the initial Table.
    As to the possibility of having to include this condition again on 
the Table should new scientific data support such an action, the 
Department would of course be willing to consider such action should 
there be reliable data for doing so. Under section 2116(b) of the Act, 
should the condition be reintroduced to the Table, petitioners would 
have 2 years to file a petition based on injuries occurring at any time 
during the 8-year period prior to such reintroduction.
    As to the increased difficulty of proving causation in fact, it is 
of course the case that this burden was not imposed on petitioners 
while there was a Table injury of this sort. The Court of Federal 
Claims will be faced with determining causation in fact under the 
statutory preponderance of the evidence standard. The IOM's conclusions 
and the data underlying it will be, in the Department's opinion, 
relevant to that inquiry.
    Finally, with regard to the definition of ``encephalopathy'' in the 
section 312 rule, the Department notes that seizures alone are not 
defined as constituting an encephalopathy, but that certain serious 
seizure events with demonstrated sequelae can do so. (See 42 CFR 
Sec. 100.3(b)(2), as added at 60 FR 7694).
    For the foregoing reasons, the Department is proposing the removal 
of the condition RSD for MMR (or components thereof) vaccines from the 
Table.

C. Vaccine Strain Measles Viral Infection in an Immunodeficient 
Recipient

    The Institute of Medicine study concluded that the evidence 
establishes a causal relation between vaccine-strain measles virus 
infection in immunocompromised individuals and death. This conclusion 
is based on a few case reports of death following the administration of 
live attenuated measles virus vaccine in children with severe combined 
immunodeficiency syndrome, leukemia, or dysgammaglobulinemia (Monafo 
WJ, Haslam DB, Roberts RL, Zaki SR, Bellini WJ, and Coffin CM. 
Disseminated measles infection after vaccination in a child with a 
congenital immunodeficiency. J of Pediatrics 1994; 124(2):273-276) 
(Hong R, Gilbert EF, Opitz JM. Omenn disease: termination in lymphoma. 
Pediatric Pathology 1985; 3:143-154) (Mihartsch MJ, Ohnacker H, Just M, 
Nars PW. Lethal measles giant cell pneumonia after live measles 
vaccination in a case of thymic alymphophasia Gitlin. Helvetica 
Paediatrica Acta 1972; 27(2):143-146) (Mawhinney H, Allen IV, Beare JM, 
Bridges JM, Connolly HH, Haire, et al. Dysgammaglobulinaemia 
complicated by disseminated measles. British Medical Journal 1971; 
2:380-381) (Mitus A, Holloway A, Evans AE, Enders JF. Attenuated 
measles vaccine in children with acute leukemia. American Journal of 
Disease of Children 1962; 103:243-248). Measles and, to a much lesser 
extent, measles vaccine infection in severely immunocompromised 
individuals may result in an overwhelming infection and death. The NVAC 
Subcommittee concurred with the IOM conclusion, but recommended that 
compensation for this condition be provided under the causation in fact 
standard of the statute, rather than through the presumption given by 
the Vaccine Injury Table.
    The Department has decided to propose adding disseminated vaccine-
strain measles virus infection in immunocompromised recipients to the 
Table. This decision is based on the recently published report by 
Monafo et al. of a 15-month-old immunodeficient male who received 
measles vaccine and died 3 months later of a molecularly-confirmed 
vaccine-strain measles virus infection (Monafo WJ, Haslam DB, Roberts 
RL, Zaki SR, Bellini WJ, and Coffin CM. Disseminated measles infection 
after vaccination in a child with a congenital immunodeficiency. 
Journal of Pediatrics 1994; 124(2):273-276). The time for onset is 
proposed to be 6 months, as is the case in the statutory Table for 
immunocompromised individuals and polio vaccines. Death as a sequela to 
this condition would also be covered by the Table. The Qualifications 
and Aids to Interpretation, under proposed paragraph (b)(9), provides 
that the measles virus should be determined to be the vaccine-strain by 
vaccine-specific monoclonal antibody or polymerase chain reaction 
sequencing, in order to eliminate cases of injury based on endemic 
measles.

IV. Oral Polio Vaccine

A. Guillain-Barre Syndrome (GBS)

    The Institute of Medicine study concluded that the evidence favored 
the acceptance of a causal relation between oral poliovirus vaccine 
(OPV) and Guillain-Barre syndrome (GBS). The conclusion was based on an 
increased incidence of GBS in a 6-year surveillance study for GBS in a 
southern province of Finland (Uusimaa) reported by Kinnunen et al. in 
1989 (Kinnunen E, Farkkila M, Hovi T, Juntunen J, Weckstrom P. 
Incidence of Guillain-Barre syndrome during a nationwide oral 
poliovirus vaccine campaign. Neurology 1989; 39:1034-1036). Ten cases 
of poliomyelitis due to wild poliovirus occurred between August 1984 
and January 1985 at a time when inactivated polio vaccine (IPV) was 
generally used, and a mass immunization program with OPV immunized 94 
percent of the Finnish population between 2/10/85 and 3/15/85. Ten 
cases of GBS occurred in OPV recipients within 10 weeks after 
immunization, and the relative risk calculated by the IOM committee 
among adult OPV recipients in a population previously immunized with 
IPV was statistically significant when calculated on calendar quarters. 
However, the discussion of the report by Kinnunen et al. states that 
``if we add the 4 cases in the 4th quarter of 1985 (sic--data actually 
refer to 1984), there are 7 cases before OPV and 7 cases after OPV in 
this 6-month period.'' Thus, OPV in this population could not be the 
only explanation for the GBS cases, since the analysis by calendar 
quarters was inconsistent with the analysis of GBS cases based on the 
periods before and after the administration of OPV or if the quarters 
were constructed in another way.
    Since the publication of the IOM report in 1993, Rantala et al. 
failed to show a temporal association between GBS and OPV after 
studying 93 cases of GBS identified in children less than 15 years of 
age from 22 hospitals over 6 years (Rantala H, Cherry JD, Shields WD, 
Uhari M. Journal of Pediatrics 1994; 124(2):220-3). On the basis of the 
available information, the presumption that OPV causes GBS within any 
time period should not be granted. Based on the most recent data, which 
had not been available to the IOM committee, the NVAC Subcommittee 
unanimously concurred with this proposal. The ACCV voted to concur with 
the proposal not to add GBS to the Table. Those not 

[[Page 56297]]
voting in favor voiced reservations over their unfamiliarity with the 
Rantala study, and the fact that its conclusions differed from the 
IOM's findings.
    The Department has evaluated the comments of the NVAC Subcommittee 
and of the ACCV and has decided not to propose the addition to GBS to 
the Table. While it is true that the IOM felt the evidence was 
sufficient to determine that GBS was casually related to OPV, new data 
published since the IOM study and the NVAC Subcommittee conclusions 
have persuaded the Department that a presumption of causation should 
not be provided. Petitioners, however, may use the IOM report to pursue 
a causation in fact theory before the U.S. Court of Federal Claims.

B. Vaccine-Strain Poliovirus Infection and Death

    The Institute of Medicine study concluded that the evidence 
establishes a causal relation between oral poliovirus vaccine (OPV) and 
vaccine-strain infection and death, including infection that results in 
paralytic poliomyelitis. This conclusion is based on case reports of 
deaths with poliovirus infections among non-immunodeficient and 
immunodeficient vaccine recipients. (IOM Report, pages 296-299) Since 
September 1994, the eradication of indigenous wild type poliovirus in 
the United States has been certified.
    Death and vaccine-associated paralytic poliomyelitis within 30 days 
in non-immunodeficient individuals, and within 6 months in 
immunodeficient individuals, are already covered in the Vaccine Injury 
Table, and poliovirus myocarditis and death in a 3-month-old non-
immunodeficient male has been compensated by a preponderance of the 
medical evidence. Based on case reports, the Department has concluded 
that vaccine-strain poliovirus infection determined by the isolation of 
poliovirus from the affected tissue that occurs within 30 days after 
administration or contact in non-immunodeficient individuals, and 
within 6 months after administration or contact in immunodeficient 
individuals, should be added to the Table.
    A subcommittee of the National Vaccine Advisory Committee concurred 
with the IOM conclusions and accepted the original Department proposal 
not to add it to the Table. Since the NVAC meeting, the Department has 
decided to provide a legal presumption of causation for vaccine-strain 
polioviral infection within 30 days in non-immunodeficient individuals, 
and within 6 months in immunodeficient individuals. The ACCV voted 
unanimously in favor of this proposal.
    The Qualifications and Aids to Interpretation, under proposed 
paragraph (b)(10), contains standards for determining whether a case is 
due to the vaccine strain of the virus. The identification of 
poliovirus is necessary to eliminate an enterovirus other than vaccine-
strain poliovirus that can cause similar overwhelming infection and 
death. Isolation of poliovirus from the stool is not sufficient to 
establish a specific tissue infection or disease caused by vaccine-
strain poliovirus, because viral shedding from the gastrointestinal 
tract occurs in the absence of other tissue infection or disease. The 
poliovirus should be determined to be vaccine-strain by oligonucleotide 
or polymerase chain reaction tests.

V. Hepatitis B Vaccine

A. Anaphylaxis or Anaphylactic Shock

    In 1981, a plasma-derived hepatitis B vaccine was licensed for the 
first time in the United States. In 1986, the first recombinant 
hepatitis B vaccine produced by genetic engineering was licensed and is 
the form currently used in the United States. In 1991, the Advisory 
Committee on Immunization Practices recommended that hepatitis B 
vaccine be administered to all infants in the United States.
    The Institute of Medicine concluded that the evidence establishes a 
causal relation between hepatitis B vaccine and anaphylaxis (313 
Report, p. 230). The conclusion was based on biologic plausibility, the 
temporal sequence of observed events following vaccination, and the 
observation of a spectrum of clinical reactions from mild 
hypersensitivity to anaphylaxis in the host after exposure to hepatitis 
B vaccine.
    The Department proposes to add hepatitis B vaccine to the Table. 
Anaphylaxis and anaphylactic shock with onset within 4 hours following 
the administration of the vaccine is proposed as a Table injury. Both 
the NVAC Subcommittee and ACCV voted unanimously in favor of this 
proposal.

VI. Hemophilus influenzae type b (Hib) Vaccine [polyribosylribitol 
phosphate (PRP) only]

A. Early Onset Invasive Hib Disease

    The unconjugated Hemophilus influenzae type b polysaccharide or PRP 
vaccine was first licensed in April 1985. Since December 1987, when the 
first polysaccaharide-protein conjugate vaccine was licensed, the PRP 
has not been routinely administered. It is no longer available for 
general use.
    Surveillance, serologic, and experimental data have demonstrated a 
transient decrease in protective antibody levels following immunization 
with the unconjugated PRP vaccine. Analysis of the data suggests that 
children over 18 months of age who received their first Hib 
immunization with the unconjugated PRP vaccine had an increased risk of 
Hemophilus disease in the 7-day interval following the immunization. 
The Institute of Medicine found that the evidence favored acceptance of 
a causal relation between unconjugated PRP vaccine and early onset 
(i.e. onset within 7 days) invasive Hib disease in children over 18 
months of age who received their first Hib immunization with the 
unconjugated PRP vaccine (IOM report, p. 260). However, ``the evidence 
favors rejection of a causal relation between immunization with Hib 
conjugate vaccines and early-onset Hib disease'' (IOM report, p. 261). 
The NVAC Subcommittee concurred with these conclusions. Thus, the 
statutory presumption of causation should be extended to cases of 
invasive Hib disease that meet the standards proposed in the 
Qualifications and Aids to Interpretation. Early-onset Hib disease is 
proposed to be added under paragraph (b)(11).

VII. Hib Vaccine (Conjugate)

    The Hib conjugate vaccines are proposed to be added to the Table 
with no condition specified. While the Hib conjugate vaccines appear to 
be capable of causing a transient decline in serum antibody levels 
following immunization, prospective observational studies have not 
demonstrated that immunization with the conjugate vaccines increases 
the risk of early-onset Hib disease. The Institute of Medicine found 
``the evidence favors rejection of a causal relation between 
immunization with Hib conjugate vaccines and early-onset Hib disease'' 
(IOM report, p. 261). The NVAC Subcommittee concurred with this 
conclusion. One member of the ACCV expressed the view that the 
information upon which the IOM based its conclusion was unreliable. A 
motion to include early onset Hib disease as a Table injury for Hib 
conjugate vaccines did not pass. The ACCV voted to accept the 
Department's recommendation by an 8 to 1 vote.

VIII. New Vaccines Recommended for Routine Administration by CDC

    The Department proposes to add to the Table any new vaccine that is 

[[Page 56298]]
recommended by the Centers for Disease Control and Prevention (CDC) for 
routine administration to children, upon indication to the Secretary 
that the vaccine has been so recommended. Accordingly, once Congress 
enacts an excise tax to cover that vaccine, the vaccine will be covered 
under the VICP. Until specified injuries are added to the Table through 
the rulemaking process, individuals who receive newly recommended 
vaccines will not receive a presumption of causation, but will instead 
be required to prove causation in fact. Of course, consistent with the 
general process for amending the Table, once the Department determines 
that specific adverse events have been associated with newly 
recommended vaccines, the Department will propose further changes to 
the Vaccine Injury Table in order to confer the appropriate presumption 
of causation.
    The Food and Drug Administration licensed hepatitis A virus vaccine 
on February 22, 1995, and licensed varicella virus vaccine on March 17, 
1995. Vaccines licensed after August 10, 1993, and recommended by the 
CDC for ``routine administration'' to children are mandated by OBRA of 
1993 to be included in the National Vaccine Injury Compensation 
Program. Recommendations on hepatitis A and varicella vaccine usage by 
CDC are pending. Furthermore, based on information from clinical 
trials, there are no specific injuries for either vaccine identified by 
the Secretary at this time that would warrant inclusion on the Vaccine 
Injury Table. Further guidance in these areas will be forthcoming 
during the NPRM's publication and public comment period.

Economic Impact

    The Secretary certifies that this proposed rule will not have a 
significant impact on a substantial number of small businesses, because 
it will have only small effects, and those primarily on individuals. 
The effects will be primarily on the ability of certain individuals to 
obtain compensation without having a burden of proving causation in 
fact. Attorneys who represent such individuals will be affected only to 
the extent that they may have a harder or easier burden of proof with 
respect to the petitions filed. However, under section 2115(e) of the 
Act, in almost all cases, attorneys' reasonable fees and costs are 
reimbursed from the Vaccine Injury Compensation Trust Fund.
    Executive Order 12866 requires that all regulations reflect 
consideration of alternatives, of costs, of benefits, of incentives, of 
equity, and of available information. Regulations must meet certain 
standards, such as avoiding unnecessary burden. Regulations which are 
``significant'' because of cost, adverse effects on the economy, 
inconsistency with other agency actions, effects on the budget, or 
novel legal or policy issues, require special analysis.
    As stated above, this proposed rule would modify the Vaccine Injury 
Table based on legal authority, and under that authority the Court will 
award such fees and costs as appropriate under the law. As such, the 
regulation would have little direct effect on the economy or on Federal 
or State expenditures.

Effect of the New Rule

    The proposed rule will have an effect for individuals who were not 
eligible to file petitions based on the earlier versions of the Vaccine 
Injury Table, but who may be eligible to file petitions based on the 
revised Table. The Act permits such individuals to file a petition for 
such compensation not later than 2 years after the effective date of 
the revision if the injury or death occurred no more than 8 years 
before the effective date of the revision of the Table. See 42 U.S.C. 
300aa-16(b). As part of the Omnibus Budget Reconciliation Act of 1993, 
Congress amended this section to permit individuals to file claims 
within this 2-year period, even if they had already filed a claim 
involving a particular vaccine, but only if the Table revision will 
``significantly increase the likelihood of obtaining compensation.'' 
See Pub. L. 103-66, sec. 13632(a)(1), August 10, 1993. For example, 
this amendment would permit an individual whose claim alleging MMR 
vaccine-related thrombocytopenic purpura had been dismissed by the 
Claims Court to file a new claim for the same vaccine-related injury, 
if the individual can show that the addition of thrombocytopenic 
purpura to the Table as a MMR vaccine-related condition has 
significantly increased the likelihood of obtaining compensation. This 
rule will also affect potential claims for individuals whose conditions 
are proposed to be removed from the Table. Although these individuals 
will be able to pursue their claims under the ``causation in fact'' 
standard, they will not be entitled to a presumption of causation that 
is granted by having a condition on the Vaccine Injury Table.

Possible Effect on Other Legislation

    This rule will not have an effect on the Vaccines for Children 
program, implemented by the Centers for Disease Control and Prevention 
under section 1928 of the Social Security Act, as enacted by section 
13631 of the Omnibus Budget Reconciliation Act of 1993 (Pub. L. 103-66, 
August 10, 1993). This section provides for the establishment of a 
program to distribute free vaccines to all vaccine-eligible children, 
as defined by this section. The proposed rule would modify the existing 
Vaccine Injury Table, a mechanism by which compensation is awarded to 
individuals who have been found to have suffered from vaccine-related 
injuries. Because the two authorities are not related, the publication 
of this rule should not have any impact on the Vaccines for Children 
Program.

Paperwork Reduction Act of 1980

    This proposed rule has no information collection requirements.

List of Subjects in 42 CFR Part 100

    Biologics, Health insurance, Immunization.

    Dated: June 2, 1995.
Philip R. Lee,
Assistant Secretary for Health.
    Approved: August 22, 1995.
Donna E. Shalala,
Secretary.
    Accordingly, 42 CFR Part 100 is proposed to be amended as set forth 
below.

PART 100--VACCINE INJURY COMPENSATION

    1. The authority citation for part 100 is revised to read as 
follows:

    Authority: Sec. 215 of the Public Health Service Act (42 U.S.C. 
216); sec. 2115 of the PHS Act, 100 Stat. 3767, as amended (42 
U.S.C. 300aa-15); Sec. 100.3, Vaccine Injury Table, issued under 
secs. 312 and 313 of Pub. L. 99-660, 100 Stat. 3779-3782 (42 U.S.C. 
300aa-1 note) and sec. 2114 (c) and (e) of the PHS Act, 100 Stat. 
3766 and 107 Stat. 645 (42 U.S.C. 300aa-14 (c) and (e)).

    2. Section 100.3 is amended by revising the Vaccine Injury Table in 
paragraph (a); by setting out the introductory text in paragraph (b); 
by revising paragraph (b)(6); by adding paragraphs (b)(7), (b)(8), 
(b)(9), (b)(10), and (b)(11); and by revising paragraph (c) to read as 
follows:

Sec. 100.3  Vaccine injury table.

    (a) *  *  *

                                                                        

[[Page 56299]]
------------------------------------------------------------------------
                                      Time period for first symptom or  
  Illness, disability, injury or        manifestation of onset or of    
        condition covered          significant aggravation after vaccine
                                               administration           
------------------------------------------------------------------------
I. Vaccines containing tetanus                                          
 toxoid (e.g., DTaP, DTP, DT, Td,                                       
 or TT):                                                                
    A. Anaphylaxis or              4 hours.                             
     anaphylactic shock.                                                
    B. Brachial Neuritis.........  2-28 days.                           
    C. Any sequela (including      Not applicable.                      
     death) of an illness,                                              
     disability, injury, or                                             
     condition referred to above                                        
     which illness, disability,                                         
     injury, or condition arose                                         
     within the time period                                             
     prescribed.                                                        
II. Vaccines containing whole                                           
 cell pertussis bacteria,                                               
 extracted or partial cell                                              
 pertussis bacteria, or specific                                        
 pertussis antigen(s) (e.g., DTP,                                       
 DTaP, P, DTP-Hib):                                                     
    A. Anaphylaxis or              4 hours.                             
     anaphylactic shock.                                                
    B. Encephalopathy (or          72 hours.                            
     encephalitis).                                                     
    C. Any sequela (including      Not applicable.                      
     death) of an illness,                                              
     disability, injury, or                                             
     condition referred to above                                        
     which illness, disability,                                         
     injury, or condition arose                                         
     within the time period                                             
     prescribed.                                                        
III. Measles, mumps, and rubella                                        
 vaccine or any of its components                                       
 (e.g., MMR, MR, M, R):                                                 
    A. Anaphylaxis or              4 hours.                             
     anaphylactic shock.                                                
    B. Encephalopathy (or          5-15 days (not less than 5 days and  
     encephalitis).                 not more than 15 days).             
    C. Any sequela (including      Not applicable.                      
     death) of an illness,                                              
     disability, injury, or                                             
     condition referred to above                                        
     which illness, disability,                                         
     injury, or condition arose                                         
     within the time period                                             
     prescribed.                                                        
IV. Vaccines containing rubella                                         
 virus (e.g., MMR, MR, R):                                              
    A. Chronic arthritis.........  7-42 days.                           
    B. Any sequela (including      Not applicable.                      
     death) of an illness,                                              
     disability, injury, or                                             
     condition referred to above                                        
     which illness, disability,                                         
     injury, or condition arose                                         
     within the time period                                             
     prescribed.                                                        
V. Vaccines containing measles                                          
 virus (e.g., MMR, MR, M):                                              
    A. Thrombocytopenic purpura..  7-30 days.                           
    B. Vaccine-Strain Measles      6 months.                            
     Viral Infection in an                                              
     immunodeficient recipient.                                         
    C. Any sequela (including      Not applicable.                      
     death) of an illness,                                              
     disability, injury, or                                             
     condition referred to above                                        
     which illness, disability,                                         
     injury, or condition arose                                         
     within the time period                                             
     prescribed.                                                        
VI. Vaccines containing polio                                           
 live virus (OPV):                                                      
    A. Paralytic Polio                                                  
        --in a non-                30 days.                             
         immunodeficient                                                
         recipient.                                                     
        --in an immunodeficient    6 months.                            
         recipient.                                                     
        --in a vaccine associated  Not applicable.                      
         community case.                                                
    B. Vaccine-Strain Polio Viral                                       
     Infection                                                          
        --in a non-                30 days.                             
         immunodeficient                                                
         recipient.                                                     
        --in an immunodeficient    6 months.                            
         recipient.                                                     
        --in a vaccine associated   Not applicable.                     
         community case.                                                
    C. Any acute complication or   Not applicable.                      
     sequela (including death) of                                       
     an illness, disability,                                            
     injury, or condition                                               
     referred to above which                                            
     illness, disability, injury,                                       
     or condition arose within                                          
     the time period prescribed.                                        
VII. Vaccines containing polio                                          
 inactivated virus (e.g., IPV):                                         
    A. Anaphylaxis or              4 hours.                             
     anaphylactic shock.                                                
    B. Any acute complication or   Not applicable.                      
     sequela (including death) of                                       
     an illness, disability,                                            
     injury, or condition                                               
     referred to above which                                            
     illness, disability, injury,                                       
     or condition arose within                                          
     the time period prescribed.                                        
VIII. Hepatitis B. vaccines:                                            
    A. Anaphylaxis or              4 hours.                             
     anaphylactic shock.                                                
    B. Any acute complication or   Not applicable.                      
     sequela (including death) of                                       
     an illness, disability,                                            
     injury, or condition                                               
     referred to above which                                            
     illness, disability, injury,                                       
     or condition arose within                                          
     the time period prescribed.                                        
IX. Hemophilus influenzae type b                                        
 polysaccharide vaccines                                                
 (unconjugated, PRP vaccines):                                          
    A. Early-onset Hib disease...  7 days.                              
    B. Any acute complication or   Not applicable.                      
     sequela (including death) of                                       
     an illness, disability,                                            
     injury, or condition                                               
     referred to above which                                            
     illness, disability, injury,                                       
     or condition arose within                                          
     the time period prescribed.                                        
X. Hemophilus influenzae type b                                         
 polysaccharide conjugate                                               
 vaccines:                                                              
    No Condition Specified                                              
XI. Any new vaccine recommended                                         
 by the Centers for Disease                                             
 Control and Prevention for                                             
 routine administration to                                              
 children, after publication by                                         
 the Secretary of a notice of                                           
 coverage:                                                              
    No Condition Specified                                              
------------------------------------------------------------------------

    (b) Qualifications and aids to interpretation. The following 
qualifications and aids to interpretation shall apply to the Vaccine 
Injury Table to paragraph (a) of this section:
* * * * *
    (6) Chronic Arthritis. (i) For purposes of paragraph (a) of this 
section, chronic arthritis may be found in a person with no history in 
the 3 years prior to vaccination of arthropathy (joint disease) on the 
basis of:
    (A) Medical documentation, recorded within 30 days after the onset, 
of objective signs of acute arthritis (joint swelling) that occurred 
between 7 and 42 days after a rubella vaccination;
    (B) Medical documentation (recorded within 3 years after the onset 
of acute arthritis) of the persistence of objective signs of 
intermittent or continuous arthritis for more than 6 months following 
vaccination; and
    (C) Medical documentation of an antibody response to the rubella 
virus.
    (ii) For purposes of paragraph (a) of this section, the following 
shall not be considered as chronic arthritis: Musculoskeletal disorders 
such as diffuse connective tissue diseases (including but not limited 
to rheumatoid arthritis, juvenile 

[[Page 56300]]
rheumatoid arthritis, systemic lupus erythematosus, systemic sclerosis, 
mixed connective tissue disease, polymyositis/dermatomyositis, 
fibromyalgia, necrotizing vasculitis and vasculopathies and Sjogren's 
Syndrome), degenerative joint disease, infectious agents other than 
rubella (whether by direct invasion or as an immune reaction), 
metabolic and endocrine diseases, trauma, neoplasms, neuropathic 
disorders, bone and cartilage disorders and arthritis associated with 
ankylosing spondylitis, psoriasis, inflammatory bowel disease, 
Reither's syndrome, or blood disorders.
    (iii) Arthralgia (joint pain) or stiffness without joint swelling 
shall not be viewed as chronic arthritis for purposes of paragraph (a) 
of this section.
    (7) Brachial neuritis. (i) This term is defined as dysfunction 
limited to the upper extremity nerve plexus (i.e., its trunks, 
divisions, or cords) without involvement of other peripheral (e.g., 
nerve roots or a single peripheral nerve) or central (e.g., spinal 
cord) nervous system structures. A deep, steady, often severe aching 
pain in the shoulder and upper arm usually heralds onset of the 
condition. The pain is followed in days or weeks by weakness and 
atrophy in upper extremity muscle groups. Sensory loss may accompany 
the motor deficits, but is generally a less notable clinical feature. 
The neuritis, or plexopathy, may be present on the same side as or the 
opposite side of the injection; it is sometimes bilateral, affecting 
both upper extremities.
    (ii) Weakness is required before the diagnosis can be made. Motor, 
sensory, and reflex findings on physical examination and the results of 
nerve conduction and electromyographic studies must be consistent in 
confirming that dysfunction is attributable to the brachial plexus. The 
condition should thereby be distinguishable from conditions that may 
give rise to dysfunction of nerve roots (i.e., radiculopathies) and 
peripheral nerves (i.e., including multiple mononeuropathies), as well 
as other peripheral and central nervous system structures (e.g., 
cranial neuropathies and myelopathies).
    (8) Thrombocytopenic purpura. This term is defined by a serum 
platelet count less than 50,000/mm3. Thrombocytopenic purpura does 
not include cases of thrombocytopenia associated with other causes such 
as hypersplenism, autoimmune disorders (including alloantibodies from 
previous transfusions) myelodysplasias, lymphoproliferative disorders, 
congenital thrombocytopenia or hemolytic uremic syndrome. This does not 
include cases of immune (formerly called idiopathic) thrombocytopenic 
purpura (ITP) that are mediated, for example, by viral or fungal 
infections, toxins or drugs. Thrombocytopenic purpura does not include 
cases of thrombocytopenia associated with disseminated intravascular 
coagulation, as observed with bacterial and viral infections. Viral 
infections include, for example, those infections secondary to Epstein 
Barr virus, cytomegalovirus, hepatitis A and B, rhinovirus, human 
immunodeficiency virus (HIV), adenovirus, and dengue virus. An 
antecedent viral infection may be demonstrated by clinical signs and 
symptoms and need not be confirmed by culture or serologic testing. 
Bone marrow examination, if performed, must reveal a normal or an 
increased number of megakaryocytes in an otherwise normal marrow.
    (9) Vaccine-strain measles viral infection. This term is defined as 
a disease caused by the vaccine-strain that should be determined by 
vaccine-specific monoclonal antibody or polymerase chain reaction 
tests.
    (10) Vaccine-strain polio viral infection. This term is defined as 
a disease caused by poliovirus that is isolated from the affected 
tissue and should be determined to be the vaccine-strain by 
oligonucleotide or polymerase chain reaction. Isolation of poliovirus 
from the stool is not sufficient to establish a tissue specific 
infection or disease caused by vaccine-strain poliovirus.
    (11) Early-onset Hib disease. This term is defined as invasive 
bacterial illness associated with the presence of Hib organism on 
culture of normally sterile body fluids or tissue, or clinical findings 
consistent with the diagnosis of epiglottitis. Hib pneumonia qualifies 
as invasive Hib disease when radiographic findings consistent with the 
diagnosis of pneumonitis are accompanied by a blood culture positive 
for the Hib organism. Otitis media, in the absence of the above 
findings, does not qualify as invasive bacterial disease. A child is 
considered to have suffered this injury only if the vaccine was the 
first Hib immunization received by the child.
    (c) Effective data provisions. The revised Table of Injuries set 
forth in paragraph (a) of this section and the Qualifications and Aids 
to Interpretation set forth in paragraph (b) of this section apply to 
petitions for compensation under the Program filed with the United 
States Court of Federal Claims on or after [the effective date of the 
Federal Register document which adopts these revisions as a final 
rule]. Petitions for compensation filed before [such effective date] 
shall be governed by section 2114 (a) and (b) of the Public Health 
Service Act as in effect on January 1, 1995, or by Sec. 100.3 as in 
effect on March 10, 1995 (see 60 FR 7678, et seq., February 8, 1995) as 
applicable.

[FR Doc. 95-27562 Filed 11-7-95; 8:45 am]
BILLING CODE 4160-15-M

Complete official Federal Register PDF

FR Doc. 95-27434 Military Munitions Rule: Hazardous Waste Identification and Management; Explosives Emergencies; Redefinition of On-Site
[Federal Register Volume 60, Number 216 (Wednesday, November 8, 1995)]
[Proposed Rules]
[Pages 56468-56495]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27434]

[[Page 56467]]

_______________________________________________________________________

Part III

Environmental Protection Agency

_______________________________________________________________________

40 CFR Part 260, et al.

Military Munitions Rule: Hazardous Waste Identification and Management; 
Explosives Emergencies; Redefinition of On-Site; Proposed Rule

Federal Register / Vol. 60, No. 216 / Wednesday, November 8, 1995 / 
Proposed Rules 

[[Page 56468]]

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 260 through 265, and 270

[EPA 530-Z-95-013; FRL-5325-5]
RIN 2050-AD90

Military Munitions Rule: Hazardous Waste Identification and 
Management; Explosives Emergencies; Redefinition of On-Site

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: In response to Section 107 of the Federal Facility Compliance 
Act (FFCA) of 1992 which added a new subsection 3004(y) to the Resource 
Conservation and Recovery Act (RCRA) (42 U.S.C. section 6924(y)), EPA 
is today proposing a rule that identifies when conventional and 
chemical military munitions become a hazardous waste under RCRA, and 
that provides for the safe storage and transport of such waste. Today's 
proposal also amends existing regulations regarding emergency responses 
involving military munitions and other explosives. This amendment would 
apply to responses by non-military or private personnel, as well as by 
the military. The proposal also revises the definition of ``on-site,'' 
which applies to all generators of hazardous waste.

DATES: Written comments on these proposed rules will be accepted until 
January 8, 1996.

ADDRESSES: Written comments (one original and two copies) should be 
addressed to: EPA RCRA Docket #F-95-MMP-FFFFF, Mail Code 5305W, 401 M 
Street SW, Washington, DC 20460. Comments also may be submitted 
electronically by sending electronic mail (e-mail) through the Internet 
system to: RCRA-D[email protected]. All electronic comments must be 
submitted as an ascii file avoiding the use of special characters and 
any form of encryption. The comments should be identified with the 
above docket number.
    The official action for this record will be kept in paper form. 
Accordingly, EPA will convert all documents received electronically 
into printed paper form as they are received and will place the paper 
copies in the official record, which will also include all comments 
submitted directly in writing. The official record is the paper record 
kept in the RCRA Docket (see address above). (Comments submitted on 
paper will not be transferred to electronic format. These comments may 
be viewed only in the RCRA Docket as described here.)
    Public comments and the supporting information used for this rule 
are available for public inspection and copying in the RCRA Information 
Center (RIC) located in room M2616 at the EPA address above. The RIC is 
open from 9:00 a.m. to 4:00 p.m., Monday through Friday, excluding 
federal holidays. To review docket materials, the public must make an 
appointment by calling (202) 260-9327.
    The RIC will be closed November 14-24, 1995 because it is 
relocating to Arlington, Virginia. Between November 14 and 24, 1995, 
special appointments can be made for viewing material in this docket by 
calling the above number. Beginning November 27, 1995, call 703-603-
9230. After that date, the Docket will be physically located at: 
Crystal Gateway, First Floor, 1235 Jefferson Davis Highway, Arlington, 
Virginia. The mailing address remains the same as given above.

FOR FURTHER INFORMATION CONTACT: The RCRA Hotline between 9 am and 6 pm 
EST, toll-free, at 800-424-9346; 703-412-9810 from Government phones or 
if in the Washington, DC local calling area; or 800-553-7672 for the 
hearing impaired; or Ken Shuster, U.S. EPA (5303W), 401 M St. SW., 
Washington, DC 20460, (703) 308-8759.

SUPPLEMENTARY INFORMATION:

Preamble Outline

I. Legal Authority
II. Background
    A. Statutory Mandate
    B. Issues Addressed in Proposal
    C. Solid Waste for Regulatory Purposes vs. Solid Waste for 
Statutory Purposes
III. Summary of Proposed Rule
IV. Section-by-Section Analysis
    A. Definition of Military Munitions
    B. Definition of ``Solid Waste'' as It Applies to Military 
Munitions
    1. Unused or Stockpiled Munitions
    a. Status of Military Stockpile
    b. Proposed Sec. 261.2(g)(1)(i)--Unused munitions that have 
previously been disposed of
    c. Proposed Sec. 261.2(g)(1)(ii)--Munitions removed from the 
stockpile for the purposes of destruction
    d. Proposed Sec. 261.2(g)(1)(iii)--Leaking or deteriorated 
munitions
    e. Proposed Sec. 261.2(g)(1)(iv)--Munitions determined by DOD to 
be a solid waste
    f. Rationale for EPA's Proposed Approach
    2. Used or Fired Munitions
    3. Munitions Used for Their Intended Purposes
    a. Proposed Sec. 261.2(g)(3)(i)--Military training exercises
    b. Proposed Sec. 261.2(g)(3)(ii)--Weapons testing
    c. Proposed Sec. 261.2(g)(3)(iii)--Range clearance during 
training or weapons testing
    4. Discharged Military Munitions at Firing Ranges
    5. Waste Materials Derived from Munitions Manufacture
    C. Standards Applicable to Generators and Transporters
    D. Storage of Military Munitions
    E. Emergency Responses
    F. Definition of ``On-Site''
    G. Permit Modifications to Receive Off-Site Waste Munitions
V. Discussion of Major Alternatives
    A. Stockpiled Munitions
    1. Approach Based on Army Regulation 200-1
    2. DOD Interim Guidance
    3. Munitions Scheduled for Destruction by International Treaty
    4. Alternatives Based on Condition of Munition
    5. Regulation of the Demilitarization Process
    B. Range Management
    1. Active Ranges
    2. Applicability of Range Cleanup Authorities
    C. Alternative Organization (Separate CFR Part)
VI. State Authority
VII. Administrative Requirements/Compliance with Executive Order
    A. Regulatory Impact Analysis Under Executive Order 12866
    1. Cost Analysis
    2. Benefits Analysis
    B. Regulatory Flexibility Act
    C. Paperwork Reduction Act
    D. Unfunded Mandates
VIII. References/Docket

I. Legal Authority

    These regulations are proposed under authority of sections 2002, 
3001-3007 (including 3004(y)), 3010, 7003, and 7004 of the Solid Waste 
Disposal Act of 1965, as amended, including amendments by RCRA and the 
FFCA (42 U.S.C. 6912, 6921-7, 6930, and 6973-4).

II. Background

A. Statutory Mandate

    Section 107 of the Federal Facility Compliance Act (FFCA) of 1992 
amended the Resource Conservation and Recovery Act (RCRA) by adding a 
new section 3004(y) that requires EPA to propose regulations, after 
consulting with the Department of Defense (DOD) and appropriate State 
officials, that identify when conventional and chemical military 
munitions become hazardous waste under RCRA, and that provide for the 
safe storage and transportation of such waste.
    Over the years, the applicability of RCRA to military munitions has 
been the subject of considerable controversy. The Department of Defense 
has expressed concern that differing regulations or interpretations 
from State to State substantially undermine its 

[[Page 56469]]
ability to carry out its mission. DOD has particularly sought clarity 
in defining RCRA's application to military munitions storage and 
transport, the recycling or destruction of obsolete munitions, and 
immediate responses to emergencies involving explosives.1 At the 
same time, citizens groups have expressed concern that many military 
activities involving munitions are insufficiently regulated. Congress 
amended RCRA to include section 3004(y) in response to these concerns.

    \1\ EPA and DOD have developed a considerable body of 
interpretive guidance and memoranda addressing these issues. EPA's 
most recent general discussion of these issues is in a June 23, 1994 
letter from Michael Shapiro, Director of the EPA Office of Solid 
Waste, to Patrick J. Meehan, Acting Assistant Deputy Under Secretary 
of Defense for Compliance. This letter and other relevant guidance 
are included in the docket to today's rulemaking.
---------------------------------------------------------------------------

    Today's proposal responds to Congress's mandate in section 3004(y). 
In developing the proposal, EPA has consulted extensively with DOD and 
the States, as the statute requires. EPA has also met with and received 
comments from a consortium of citizens groups with particular interest 
in the environmental and human health impacts of military installations 
around the United States. In addition, representatives of the waste 
treatment industry have provided comments to EPA. Records of these 
meetings and information provided to EPA are included in the docket to 
today's rulemaking.

B. Issues Addressed in the Proposal

    In developing today's proposal, EPA focused primarily on several 
key issues that have arisen in the implementation of the RCRA program 
at military installations, or that have been raised by DOD, States, or 
citizens groups. These issues are:
    1. When does an unused munition become a RCRA ``hazardous waste,'' 
potentially subject to RCRA permitting and technical management 
standards? All parties agree that the destruction of unused munitions 
is regulated under RCRA (if the munitions meet the definition of 
``hazardous''). But at what point in the process do stockpiled 
munitions slated for destruction first become subject to RCRA?
    2. Should RCRA hazardous waste management standards apply to the 
use of munitions in weapons testing or military training exercises? 
Although EPA in the past has not regulated these activities under RCRA, 
it has been argued that military munitions are ``discarded'' during 
field exercises, and therefore should be subject to RCRA hazardous 
waste management standards. It has also been argued that certain 
activities associated with munitions training or testing--for example, 
the detonation of unexploded ordnance at a firing range--properly fall 
under RCRA jurisdiction.
    3. How do RCRA hazardous waste regulations apply to emergencies 
involving explosive materials, including military munitions? DOD has 
expressed concern that current RCRA hazardous waste regulations may 
complicate responses by emergency personnel to unexploded ordnance and 
other emergencies.
    4. In what way (if any) do RCRA requirements apply to unexploded 
ordnance and environmental contamination at military ranges and impact 
zones, especially ones that are closed?
    5. Once it has been determined that a munition is a hazardous waste 
for regulatory purposes, what storage and transportation standards are 
needed to ensure protection of human health and the environment? DOD, 
in particular, expressed concern that certain RCRA standards are 
inconsistent with its internal regulations on munitions storage, and 
that the RCRA transportation requirements (including the manifest) are 
redundant with DOD controls.
    Today's notice provides EPA's proposed resolution of these issues. 
The notice also proposes a new definition of ``on-site,'' to reduce 
unnecessary paperwork requirements for hazardous wastes transported 
within large facilities, including military installations.

C. Solid Waste for Regulatory Purposes vs. Solid Waste for Statutory 
Purposes

    In addressing the issues above, EPA carefully reviewed the RCRA 
statutory and regulatory definitions of ``solid'' and ``hazardous'' 
waste. To avoid confusion in today's proposal, EPA notes at the outset 
that the terms ``solid waste'' and ``hazardous waste'' have different 
meanings depending upon the context in which the terms appear. These 
terms are defined in both the statute and in the regulations 
implementing RCRA Subtitle C.
    RCRA statutorily defines ``solid waste'' in section 1004, 42 U.S.C. 
6903(27), in pertinent part, as follows:

    The term ``solid waste'' means any garbage, refuse, sludge from 
a waste treatment plant, water supply treatment plant, or air 
pollution control facility and other discarded material, including 
solid, liquid, semisolid, or contained gaseous material resulting 
from industrial, commercial, mining and agricultural operations, and 
from community activities . . .

42 U.S.C. 6903(27). The term ``hazardous waste'' is defined in the 
statute as those solid wastes that may ``(A) cause, or significantly 
contribute to an increase in mortality or an increase in serious 
irreversible, or incapacitating reversible, illness; or (B) pose 
substantial present or potential hazard to human health or the 
environment when improperly treated, stored, transported, or disposed 
of, or otherwise managed.'' 42 U.S.C. 6903(5).
    The terms ``solid waste'' and ``hazardous waste'' are defined for 
purposes of the regulatory program under Subtitle C of RCRA at 40 CFR 
261.2 (solid waste) and 40 CFR 261.3 (hazardous waste). Materials 
meeting these definitions are a subset of the materials meeting the 
statutory definitions. EPA regulations at 40 CFR 261.1(b)(1) make clear 
that the regulatory definition of ``solid waste'' applies only to 
wastes that are also hazardous for purposes of the regulations 
implementing subtitle C of RCRA. Accordingly, the statutory definition 
of solid waste is broader in scope than the regulatory definitions of 
the term. See also 40 CFR 261.1(b)(2).
    In parts IV.A thru B.3 and B.5 of the preamble, EPA discusses the 
circumstances under which unused munitions in the military stockpile 
are considered to meet the definition of ``solid waste'' as defined in 
the regulations implementing Subtitle C of RCRA. Therefore, in this 
context the relevant definition of ``solid waste'' is the definition 
contained in the Subtitle C regulations. Unused military munitions 
meeting the regulatory definitions of ``solid waste'' could be 
regulated as hazardous waste and thus subject to full Subtitle C 
requirements.
    In part IV. B.4. of the proposal EPA discusses the circumstances 
under which discharged or fired munitions meet the statutory definition 
of ``solid waste''. As explained below, these materials would not meet 
the regulatory definition of ``solid waste'' and thus would not be 
regulated as ``hazardous waste''. Nevertheless, these materials could 
be ``solid waste'' as defined by the statute. Therefore, in this 
context the relevant definition of ``solid waste'' is the statutory 
definition. Discharged or fired munitions that meet the statutory 
definition of ``solid waste'' are subject to RCRA's remedial statutory 
authority.

III. Summary of Proposed Rule

    Today's proposal addresses: (1) when military munitions become a 
solid, and therefore potentially a hazardous waste, (2) what 
transportation and storage requirements apply to military munitions 
that become a hazardous 

[[Page 56470]]
waste, (3) how RCRA hazardous waste regulations apply to immediate 
responses to emergencies involving military munitions and other 
explosives, (4) what RCRA requirements apply to fired munitions, and 
(5) an amendment to the definition of ``on-site,'' as it applies to 
hazardous waste generators.
    On the issue of when a munition becomes a regulatory solid waste, 
today's proposal provides that unused military munitions in the 
military stockpile become solid waste when they are removed from 
storage in the stockpile for the purpose of disposal, or for treatment 
prior to disposal; when they are leaking or deteriorated to a point 
where they cannot be used or recycled; or when DOD or authorized 
Military Service personnel declare them to be a solid waste, whichever 
comes first. The proposal would make clear that munitions disposed of 
in the past, for example by burial at former military installations, 
are solid waste. At the same time, the proposal explicitly provides 
that use of munitions for their intended purpose (for example, in 
training exercises, or in activities associated with training, such as 
range clearance) does not constitute waste management regulated under 
RCRA.
    The proposal also discusses alternate approaches to the regulation 
of unexploded ordnance and other munitions remaining at ranges after 
the range has been closed. Under the approach proposed in today's 
notice, these munitions would be considered statutory ``solid waste,'' 
potentially subject to RCRA cleanup authorities, until DOD develops 
range cleanup standards, in consultation with EPA and with full 
opportunity for public participation. Under today's proposal, DOD's 
standards, once issued, would take precedence over RCRA.
    The proposal would also codify EPA policy on immediate responses to 
emergencies involving munitions and other explosives. Under the 
proposal, immediate responses taken by trained personnel (whether 
military, other governmental, or private) would not be subject to RCRA 
permitting or other requirements. In addition, if emergency 
transportation of the explosive were necessary, this could occur 
without a RCRA manifest.
    The proposal also includes new standards for military magazines or 
bunkers used to store hazardous waste munitions. These standards are 
designed to provide consistency between RCRA technical standards and 
DOD standards for munitions storage. In addition, today's proposal 
would exempt military munitions from RCRA manifest and other RCRA 
transportation requirements, if they are being shipped to other DOD 
facilities under DOD's munitions tracking system.
    Finally, the proposal revises the definition of ``on-site,'' so 
that hazardous waste generators may define on-site property to include 
all contiguous property (regardless of whether or not it is split by a 
road or right-of-way). This change will provide military installations 
and other large facilities (such as universities or large industrial 
complexes) greater flexibility in handling waste on site and will 
eliminate redundant paperwork requirements (e.g., by eliminating the 
manifest requirement).

IV. Section-by-Section Analysis

A. Definition of Military Munitions

    Today's proposal includes a definition of ``military munitions'' 
(in Sec. 260.10). This definition, which establishes the scope of 
today's rule, includes all types of ammunition products and their 
components, including conventional and chemical munitions, produced by 
or for the military for national defense and security. The definition 
lists a number of component examples, including propellants, 
explosives, pyrotechnics, and chemical and riot control agents; and 
product examples, including rockets, bombs, mines, grenades, artillery, 
and torpedoes. The definition excludes improvised explosive devices, 
for example, home-made bombs (which are non-military) \2\ and nuclear 
weapons, devices, and components thereof managed under the Department 
of Energy's nuclear weapons program.

    \2\ Improvised explosive devices, or IEDs, are defined as non-
standard explosive devices made from either military or non-military 
materials by non-military personnel.
---------------------------------------------------------------------------

    The proposed definition also clarifies that such military munitions 
may be under the control of the Department of Energy (DOE), the U.S. 
Coast Guard, the National Guard, or a private company producing the 
munitions under contract to or as an agent for DOD, as well as the 
Department of Defense.
    EPA considered including in this rule non-nuclear components of 
munitions managed by DOE under its nuclear weapons program. Upon 
review, however, EPA has determined that section 107 of the FFCA does 
not contemplate the inclusion of nuclear weapons or their components 
within the scope of this rule. The statutory language and legislative 
history of Sec. 107 demonstrates the intent of Congress that EPA 
develop regulations that address conventional and chemical munitions. 
No mention was made of nuclear weapons or their components. 
Furthermore, EPA recognizes that DOE's practices and procedures for the 
management of nuclear munitions under the Atomic Energy Act of 1954, 42 
U.S.C. 2011 et seq., as well as the potential impacts on DOE 
operations, are significantly different from those of DOD pertaining to 
conventional and chemical munitions.
    For these reasons, EPA has decided not to include nuclear weapons 
components in today's proposal. Instead, the proposal addresses 
conventional and chemical weapons, as contemplated by Sec. 107, and 
specifically does not apply to nuclear weapons or the components 
thereof managed under DOE's nuclear weapons program. Conventional or 
chemical munitions that DOE produces or manages for the military, 
however, would be subject to this proposed rule.

B. Definition of ``Solid Waste'' as It Applies to Military Munitions

    RCRA section 3004(y) requires EPA to identify ``when military 
munitions become hazardous waste for purposes'' of Subtitle C of RCRA. 
In general, materials are considered to be ``hazardous waste,'' for 
regulatory purposes, if: (l) the material is a ``solid waste,'' as 
defined in 40 CFR 261.2, and (2) the material meets the definition of 
``hazardous waste'' in 40 CFR 261.3. In today's proposal, EPA has 
focused on the first point--when munitions become a solid waste--and 
has not proposed to amend the definition of ``hazardous waste'' as it 
applies to munitions.
    EPA has taken this approach because the controversy over when 
military munitions become regulated under RCRA Subtitle C hazardous 
waste standards has centered on the question of when munitions become 
``solid waste'' under Sec. 261.2, rather than on whether they are 
``hazardous waste'' under Sec. 261.3. Many military munitions meet the 
RCRA ``ignitability'' or ``reactivity'' characteristics, for example, 
because they are explosive (see 40 CFR 261.21 and 261.23 
respectively).3 In addition, other munitions are hazardous under 
the ``toxicity'' characteristic, because they contain high levels of 
lead or other toxic metals (see 40 CFR 261.24). EPA believes that the 
current definition of ``hazardous waste'' in 40 CFR 261.3 is adequate 
as it applies to 

[[Page 56471]]
waste munitions, and therefore proposes no change to 40 CFR 261.3.

    \3\ Some munitions are not ``reactive.'' For example, in a 
memorandum of June 2, l988, EPA stated that small arms ball 
ammunition of up to and including 0.50 calibers are not reactive 
within the meaning of RCRA. The Department of the Army has codified 
this position in Army Regulation 200-l, section 6-7(k).
---------------------------------------------------------------------------

    Under 40 CFR 261.2 of the RCRA regulations, ``solid waste'' is 
defined as ``discarded material.'' Section 261.2 (a) through (f) 
provides a detailed regulatory definition of this term. In particular, 
Sec. 261.2(b) defines ``discarded material'' as materials that are 
abandoned by being disposed of; burned or incinerated; or accumulated, 
stored, or treated (but not recycled) before or in lieu of being 
abandoned. In today's notice, EPA proposes to add a new Sec. 261.2(g) 
specifying how the regulatory term ``discarded material'' applies to 
unused military munitions. This proposed provision would address the 
regulatory definition of solid waste in the context of three specific 
categories of munitions: (1) unused munitions in the military 
stockpile, (2) used or fired munitions, and (3) munitions being used 
for their intended purpose.
    Additionally, EPA proposes in new Sec. 261.2(g)(4) to characterize 
munitions at closed or transferred ranges as statutory solid waste 
under RCRA section 1004(27). However, once DOD promulgated range 
cleanup regulations under its own standards, this section would be 
superseded.
1. Unused or Stockpiled Munitions
    a. Status of Military Stockpile. According to DOD, the military 
services currently have 5.6 million tons of conventional munitions 
stored in magazines at installations within the United States. Of these 
munitions, more than 5.1 million tons (or more than 90%) are in an 
``active use'' inventory, and therefore are available for use in 
training or war. At the same time, however, the Services have a 
significant volume of munitions in ``demilitarization'' accounts (for 
example, the Army's Resource Recovery and Disposition Account); 
munitions in these accounts are generally considered to be excess and 
unneeded, ``unserviceable'' (and needing further assessment or repair), 
or obsolete.4

    \4\ The Services also assign ``condition codes'' to ammunition. 
For example, the Army's Ammunition Surveillance Procedures (November 
l990) provides designations for ammunition such as Condition Code H 
(``Material that has been determined to be unserviceable and does 
not meet repair criteria'').
---------------------------------------------------------------------------

    According to DOD, approximately 440,000 tons of munitions are 
stored in demilitarization accounts; under DOD procedures, these 
materials first undergo evaluation to determine whether they can be 
returned to service, repaired, sold, or recycled. If these options are 
unavailable, the munition is then scheduled for destruction. DOD 
currently considers that its stockpile includes 48,000 tons of 
munitions scheduled for destruction.
    EPA and DOD generally agree that munitions stored in the active use 
military stockpile do not meet the definition of ``discarded material'' 
or ``solid waste'' in 40 CFR 261.2, and therefore are not regulated 
under RCRA subtitle C. There is also general agreement that obsolete or 
excess munitions meet the regulatory definition of solid waste at the 
point when they are received for destruction or disposal--for example, 
at open burning/open detonation units or incinerators. Despite 
agreement on these points, however, there has been considerable 
discussion over whether and how RCRA standards apply to munitions 
slated for destruction before they are received at a treatment or 
disposal site.
    This discussion has centered primarily on defining what event or 
munition status indicates a DOD ``intent to destroy.'' EPA has had 
comparable discussions with industry over when commercial products 
become a solid waste. The Part 261 regulations regarding commercial 
products in storage rely largely on the ``intent'' of the owner to 
discard; over the years, EPA has sought to establish simple, 
consistent, and enforceable principles regarding the point at which 
commercial products are intended to be ``discarded''--notably these are 
(1) when the products are removed from storage for disposal, or 
treatment prior to disposal, (2) when the owner declares them to be 
hazardous waste, and (3) when they are deteriorated or damaged (e.g., 
leaking) to the point they cannot be used, or reprocessed for 
beneficial use. In today's proposal EPA has sought to apply these 
general principles to military munitions.
    In proposed Sec. 261.2(g)(1)(i) through (iv), EPA clarifies this 
issue by identifying the specific circumstances under which an unused 
or stockpiled munition would be considered to be solid waste for 
regulatory purposes.
    b. Proposed Sec. 261.2(g)(1)(i)--Munitions that have previously 
been disposed of. Under proposed Sec. 261.2(g)(1)(i), a munition 
becomes discarded, and therefore a solid waste when it is ``abandoned 
by being disposed of, burned, or incinerated, or treated prior to 
disposal.'' Thus, open burning/ open detonation or incineration of 
unused munitions (except when done during an emergency response or 
during training in use of a product) is regulated under the RCRA 
subtitle C standards for hazardous waste, including the 40 CFR Part 270 
permit requirements (assuming the waste munitions meet the Sec. 261.3 
definition of ``hazardous waste''). Similarly, unused munitions that 
were buried or landfilled in the past are solid waste, and, if 
hazardous, they would become subject to applicable subtitle C 
regulation when unearthed and further managed. EPA emphasizes that this 
proposed section would not bring use of military munitions for their 
intended purposes--e.g., the firing of military rounds--within the 
scope of subtitle C. The use of a product (in this case a military 
munition), in EPA's view, is not a waste management activity and does 
not constitute abandonment for the purposes of proposed 
Sec. 261.2(g)(1). (``Discarded material'' in the context of munitions 
used at military firing ranges is addressed in proposed 
Sec. 261.2(g)(4), which is discussed below.)
    c. Proposed Sec. 261.2(g)(1)(ii)--Munitions removed from the 
stockpile for the purposes of disposal/destruction. Proposed 
Sec. 261.2(g)(1)(ii) would specify that a military munition becomes a 
solid waste for regulatory purposes when it is removed from storage in 
a military magazine or other storage area \5\ for the purposes of 
destruction, disposal, or treatment prior to disposal.

    \5\ The term ``military magazine or other storage area'' refers 
to all types of military munitions storage units, including outdoor 
or open storage areas, sheds, bunkers, and earth-covered and above-
ground magazines allowed under the DOD Explosives Safety Board 
(DDESB) standards (DOD 6055.9-STD), which are mandatory for use by 
all DOD components.
---------------------------------------------------------------------------

    Stockpiled munitions, in EPA's view, are unused ``products'' 
comparable to unused commercial products stored by manufacturers or 
their customers. Under RCRA, unused products do not become ``waste'' 
until they become ``discarded material,'' that is, until an intent to 
discard the material can be demonstrated. Even if a commercial 
product's shelf life has expired, or it can no longer be used for its 
intended purpose (for example, because of physical deterioration), it 
may be reprocessed or used for other purposes. Thus, it would not 
necessarily be considered ``discarded material'' or solid waste.
    Stockpiled military munitions are in a comparable situation, and 
the classification of a munition in one of the various DOD 
``demilitarization'' accounts does not, in EPA's view, constitute a 
decision to discard the material because, pursuant to DOD's practices, 
such a classification does not necessarily evidence an intent to 
discard. Ammunition classified as ``unserviceable,'' for example, may 
be returned to service, after further review, or in some cases after 
reprocessing. 

[[Page 56472]]
Munitions in the demilitarization accounts (such as the Army's Resource 
Recovery and Disposition Account) may also be sold for non-military 
purposes, or to nations that still maintain older weapons systems. Even 
munitions scheduled for disposal may still have a deterrent purpose and 
may be called back into service in cases of emergency. Therefore, in 
EPA's view, inclusion of a munition in a ``demilitarization'' account 
or a military determination that a munition is ``unusable'' for its 
intended purpose does not constitute a decision to dispose of it.
    For these reasons, today's proposal makes it clear that unused 
munitions stored in military stockpiles are not considered ``solid 
waste'' subject to subtitle C (except as provided in Sec. 261.2(g)(1) 
(iii) and (iv) discussed below). Instead, EPA has sought to establish a 
simple, consistent, and enforceable point where a munition would be 
considered ``discarded.'' In EPA's view, the most appropriate point for 
military munitions (and the point that is most consistent with the 
regulation of commercial/industrial products) is when the material is 
finally removed from storage for the purpose of disposal or treatment 
prior to disposal. In practical terms, this provision would mean that 
storage of stockpiled munitions would, for the most part, not be 
subject to RCRA regulation (with exceptions described below); however, 
once a munition was removed from a magazine for the purpose of 
destruction or disposal it would become solid waste potentially 
regulated under subtitle C of RCRA.
    EPA emphasizes that this provision would trigger RCRA coverage only 
where a decision to destroy the munition had clearly been made. In many 
cases, munitions classified as ``unserviceable'' are removed from 
storage and sent to central arsenals for evaluation to determine 
whether they are in fact unusable, whether they can be sold for use, 
whether they can be recycled or processed for other uses, or whether 
they should be disposed of. In these cases, the munition is not being 
shipped for the purposes of destruction or disposal, but rather for 
evaluation. The munition would be handled as a waste only if no further 
evaluation would take place and the decision to destroy had already 
been made.\6\ Similarly, a munition may be removed from storage for the 
purpose of recycling or materials recovery without triggering RCRA.

    \6\ EPA has taken a similar position in the case of 
pharmaceuticals returned to the manufacturer. See letter from Sylvia 
K. Lowrance, Director, EPA Office of Solid Waste, to Mark J. Schulz, 
Pharmaceutical Services, Inc., Browning-Ferris Industries, May 16, 
1991.
---------------------------------------------------------------------------

    EPA recognizes that it may not always be easy to determine whether 
a decision to destroy the material has been made; however, it believes 
that the status of a munition removed from storage will generally be 
clear. In some cases, a decision to destroy might be evidenced by a 
specific order or document. In other cases, the intent to destroy the 
munition would be obvious even in the absence of such an order. For 
example, a munition sent to a commercial, non-military hazardous waste 
facility is presumably a waste (unless the facility is also a 
commercial dismantling/reclamation facility). Similarly, if a rocket 
undergoing demilitarization is disassembled, and the propellant shipped 
off-site to an incinerator at another installation, the intent to 
destroy the propellant would be clear. In both cases, the point of 
generation of the waste would be when it was removed from storage. EPA 
emphasizes, however, that the rocket disassembly process itself is not 
a form of RCRA ``treatment,'' and only the propellant that is 
incinerated would be a solid waste. More generally, when a munition is 
disassembled, the removal of a component from the munition does not 
demonstrate or suggest an intent to discard that component. These 
activities are therefore not considered waste management under RCRA 
(unless the material is already classified as a waste, and the 
disassembly is carried out to prepare for waste disposal.)
    To summarize, the disassembly of a munition and recovery of 
explosives or propellants and other components for reuse does not 
constitute a waste management activity. In fact, these operations 
constitute a large part of DOD's Resource Recovery and Recycling 
Program, and EPA strongly supports and encourages this program. EPA 
views recycling of unused military munitions as being directly 
analogous to the reclamation of commercial chemical products (see 40 
CFR 261.2(c) and (e) and 261.33). Thus, the position EPA is taking in 
today's rule on military munitions recycling or materials recovery 
operations is consistent with the position it has taken with regard to 
the management of commercial chemical products.
    Examples of munitions recycling activities performed by DOD that 
would not be regulated under RCRA include the following:
    (1) Recovery of explosive filler, together with scrap metal sale. 
Explosive filler material may be removed from munitions by using a 
heated medium, such as steam, hot water, or air. Further processing may 
be necessary if the explosive material is contaminated or the end use 
requires a specific form of explosive. The filler material is then used 
or reformulated for military or commercial explosives, and the inert 
metal parts may be reused as is or sold for scrap value.
    (2) Reuse of Hazard Class (HC) 1.3 large rocket motor propellent, 
together with casing reuse or scrap metal sale. The HC 1.3 propellant 
may be removed from the rocket motor case with a high pressure water 
jet. The washed-out material and liquor is then processed to remove 
ammonium perchlorate. The ammonium perchlorate is then crystallized and 
reused as an ingredient in a large rocket motor propellant formulation, 
and the motor casing is either used or sold for scrap value.
    (3) Reuse of HC 1.1 large rocket motor propellant, together with 
casing reuse or scrap metal sale. The HC 1.1 propellant is removed from 
the rocket motor as propellant chips through a dry machining process. 
These chips are then mixed with other ingredients to produce commercial 
sector blasting charges for mining or quarrying. The motor casing is, 
again, either reused or sold for scrap metal.
    (4) Reuse of red phosphorus composition. The red phosphorus 
composition is removed from unserviceable L8A1 smoke grenades for 
reloading into the new L8A3 grenades.
    (5) White phosphorus to phosphoric acid conversion. This process 
converts white phosphorus to saleable phosphoric acid by integrating an 
industrial phosphoric acid conversion process to a modified furnace.
    The examples of ways in which military munitions may be reused for 
military and commercial applications, while specific, apply not only to 
the identified munitions but illustrate how RCRA requirements apply to 
munitions of similar types. The examples, however, do not specifically 
address one type of recycling identified by DOD: that is, the 
processing of an unused explosive to allow its use as fertilizer. In 
this case, the explosive, arguably, is being applied to the land in 
lieu of its original intended use and therefore--by analogy to 
commercial chemical products--its use as a fertilizer would potentially 
be regulated as waste management (see 40 CFR 261.33). EPA solicits 
comment on whether this type of recycling is appropriate for military 
explosives and therefore whether it should be allowed under today's 
rule.
    Of course, treatment or disposal of residual materials generated 
during the disassembly or processing of unused munitions is potentially 
subject to 

[[Page 56473]]
RCRA regulation. In example number 2 above, ingredients remaining after 
the crystallization of ammonium perchlorate might be incinerated. EPA 
would consider this incineration to constitute waste management and the 
materials incinerated to be a solid waste.
    Proposed Sec. 261.2(g)(5) in today's rule clarifies these points.
    d. Proposed Sec. 261.2(g)(1)(iii)--Leaking or deteriorated 
munitions.
    Proposed Sec. 261.2(g)(1)(ii), discussed above, would define the 
most common circumstances under which a stockpiled military munition 
would become a solid waste--that is, when a decision has been made to 
dispose of it and it is removed from storage for transportation to a 
disposal site. EPA, however, recognizes (and States and citizens groups 
have pointed out) that under certain circumstances military munitions 
in storage may deteriorate to a point where they are no longer 
``products'' in any meaningful sense and indeed may present an 
environmental threat. To address these circumstances, proposed 
Sec. 261.2(g)(1)(iii) would define a munition as a solid waste if it is 
``deteriorated or damaged (e.g., as a result of leaks or broken seals) 
to the point that it cannot be put into serviceable condition, and 
cannot reasonably be recycled or used for other purposes.'' For 
example, leaking chemical munitions are typically overpacked and placed 
in separate storage. Further, the stabilizers and chemicals involved 
have often deteriorated, and these chemicals have no reclamation 
potential. In EPA's view, these munitions have lost any reasonably 
possible future uses. Therefore, they should be defined as solid waste, 
and if hazardous, managed accordingly.
    EPA recognizes that there is no specific analogous provision for 
deteriorated or damaged stockpiled commercial products. EPA believes, 
however, that commercial products in similar situations without any 
reasonable future uses or recycling potential would qualify as solid 
waste under existing regulations. Furthermore, EPA shares commenters' 
concerns that, when a munition presents a threat because of leakage or 
physical deterioration and when there is no reasonable possibility of 
productive use of the material, it should be treated or destroyed as 
soon as feasible.
    e. Proposed Sec. 261.2(g)(1)(iv)--Munitions determined by DOD to be 
a solid waste. Finally, proposed Sec. 261.2(g)(1)(iv) would make it 
clear that the military Services or the Department of Defense may 
identify a stockpiled military munition as a RCRA ``solid waste.'' In 
this case, the munition (if ``hazardous'') would be subject to 
hazardous waste regulations. For example, the Department of Defense has 
previously determined that M55 rockets containing chemical agents are 
hazardous waste. DOD made this decision because the rockets' delivery 
system no longer exists, and because DOD decided, for operational 
reasons, that the rockets would not be used in military operations and 
that they would not be sold or reclaimed. These rockets are now being 
regulated as hazardous waste under RCRA interim status or permit 
requirements. Today's proposal would not affect the waste status of 
these materials, or of materials DOD in the future classifies as solid 
waste.
    EPA emphasizes that proposed Sec. 261.2(g)(1)(iv) requires a 
specific declaration by an authorized military official that a munition 
is a solid waste. As explained earlier, a decision under DOD's 
classification system that a munition is ``unserviceable,'' or the 
transfer of a munition into a ``demilitarization'' account would not 
constitute a decision that a munition is a solid waste.
    f. Rationale for EPA's Proposed Approach. EPA's proposed approach 
is based primarily on the recognition that stockpiled munitions are 
``products,'' generally outside the scope of RCRA; that Congress 
intended for EPA to develop a ``fair and coherent'' approach regarding 
RCRA's application to munitions; that DOD has in place extensive 
storage standards that, in providing for safety, are also protective of 
human health and the environment; and that the military Services' 
safety record in storing munitions has been good. EPA further believes 
that there is no compelling environmental or legal reason to develop an 
intent-based test for defining when munitions become hazardous waste. 
Indeed, to do so would significantly increase the regulatory burden not 
only on DOD, but also on regulators, and it would certainly complicate 
DOD's management of the military stockpile. These reasons are discussed 
in more detail below.
    In the first place, the proposed approach would be simple, 
straightforward, and enforceable. Munitions while stored in the 
stockpile would generally be excluded from RCRA regulation. Alternative 
approaches that would divide munitions in the military stockpile into 
``waste'' and ``non-waste'' munitions (based on one or another set of 
intent-based criteria) would be likely to provide little certainty, and 
would be difficult to implement in the field. EPA is particularly 
concerned about approaches that would lend themselves to site-specific 
disagreements over whether a particular stockpile munition is or is not 
a hazardous waste. Congress charged EPA with developing a ``fair and 
coherent approach to identifying when military munitions become a 
hazardous waste,'' and expressed the opinion that, without such 
regulation, RCRA jurisdiction over munitions ``will likely be left to 
the courts.'' (See H.R. Conference Report No. 886, 102d Cong., 2d Sess. 
29 (1992). See also Cong. Rec. H9137 (daily ed. September 23, 1992), 
Floor statement of Rep. Ritter). In light of this directive, EPA has 
sought to draw as clear and universal a line as possible in this 
proposal, and to avoid definitions that are likely to lead to debate in 
their application, or to require specialized military expertise to 
interpret. EPA's goal has been to define a consistent national 
standard, which would eliminate the need for complicated site-specific 
judgments that may have little if any relevance to protection of human 
health and the environment.
    Today's proposal on military munitions is also consistent with 
EPA's approach under RCRA to other products. To be sure, the proposal 
does not precisely parallel EPA's approach to commercial products, but 
the basic approach is the same; in both cases, unused products are 
generally excluded from RCRA jurisdiction. The only substantive 
differences between the proposal and the current definition of solid 
waste, as it applies to ``commercial'' products, are that: (1) RCRA 
jurisdiction for military munitions would generally be triggered by the 
actual removal of a munition from storage for disposal or treatment, 
rather than by evidence of an ``intent'' to discard the material before 
its removal from storage, and (2) leaking munitions that could not be 
returned to use would be explicitly defined as solid waste. EPA 
acknowledges these minor differences, but believes they are appropriate 
in the case of military munitions, given Congress's mandate that EPA 
develop specific regulations for military munitions that reflect the 
special circumstances surrounding these materials.
    Moreover, EPA has chosen the proposed approach because it involves 
minimum interference with the military's established system for 
managing stockpiled munitions, and it would not conflict with the 
Services' logistical needs or constraints. Munitions in both the active 
and demilitarization accounts are managed 

[[Page 56474]]
under the same storage and transportation standards, and they are often 
stored together in the same magazines. The threat from a specific 
munition does not change when it is determined to be ``unserviceable''; 
when it is reclassified into a demilitarization account; or when it is 
scheduled for treatment or disposal. Today's proposal recognizes the 
efficiency of managing the military stockpile within the current 
system. Under the proposal, the demilitarization process would remain 
governed by logistical, safety, and strategic considerations; munitions 
slated for destruction or treatment could be removed from magazines and 
shipped to waste treatment or disposal facilities according to an 
orderly process, rather than by regulatory schedules.
    Finally, EPA's proposal reflects the Agency's preliminary judgment 
that RCRA regulation of stockpiles of largely military ``products'' 
(only a very small portion of the stockpile would be ``waste'') would 
not significantly increase protection of human health and the 
environment. The military's storage standards and practices for 
munitions generally provide protection that is comparable to or better 
than RCRA regulation would provide. The storage of military munitions 
is regulated under standards overseen by the Department of Defense 
Explosives Safety Board (DDESB), an organization independent of the 
Services within DOD that was established by Congress and reports to the 
Secretary of Defense. EPA and one interested party, representing 
certain members of the waste treatment industry, have reviewed the 
DDESB standards in detail. Both concluded that the technical design and 
operating standards of the DDESB meet or exceed RCRA standards in 
virtually all respects. There were gaps in certain procedural 
requirements, and in areas unrelated to risks from explosive 
materials--e.g., in requirements to coordinate with local authorities 
or in closure requirements. At this point, however, EPA is not 
convinced that RCRA standards would substantially increase 
protection.7 (Both EPA's and the commenter's review is available 
in the docket of today's rulemaking.)

    \7\ Strategic Environmental Services, Inc., in comments to EPA, 
cited three particular areas where it concluded that DDESB standards 
were less stringent than RCRA's: preparedness requirement with the 
local community, closure requirements, and inspection frequency. EPA 
believes that the differences in approach between the standards in 
these areas is of limited significance. First, under RCRA 
preparedness requirements, a facility must attempt to make 
arrangements with local police, fire departments, emergency response 
teams, and hospitals to allow them better to respond to emergencies. 
If these local institutions do not respond to overtures from the 
facility, however, the facility has satisfied its obligation. 
Military installations already have extensive contingency plans for 
munitions emergencies, and responsibility for responding to these 
emergencies generally falls on military rather than local personnel. 
Therefore, coordination with local response authorities is less 
important than it is with civilian facilities. Furthermore, it is 
unclear what value would be added by preparedness plans that applied 
only to that part of an installation's munition stockpile that was 
classified as waste, and not to other munitions on the 
installation--especially given that the active stockpile would 
typically dwarf ``waste'' munitions in quantity. The situation is 
different for stockpiled chemical munitions--partly because of the 
greater possibility that an emergency would have off-site effect, 
and partly because of heightened public concern. However, Congress 
has already required the Secretary of Defense to establish a 
chemical weapons stockpile safety contingency plan (National Defense 
Authorization Act for Fiscal Year (FY) 92) and the Secretary of the 
Army to establish citizens' commissions for states with stockpile 
sites (National Defense Authorization Act for FY93). Second, as to 
closure requirements, it is unclear how typical munitions bunkers 
would lead to contamination problems. In any case, however, storage 
magazines are subject to the decontamination and remediation 
requirements of CERCLA 120(h)(3) when the property is transferred, 
and DOD is required to clean up environmental contamination under 
the Defense Environmental Restoration Act. Residual contamination is 
also subject to other cleanup authorities, including RCRA section 
7003. Finally, EPA sees no reason why Service inspection procedures 
for the active stockpile are not adequate for munitions slated for 
disposal.
---------------------------------------------------------------------------

    In addition, the military's safety record for the entire stockpile 
has been good. According to DOD, there have been 27 ``incidents'' 
involving stockpiled munitions over the last twenty years, with only l3 
of these involving structural damage to a bunker or storage unit. This 
represents a very low accident rate, considering the enormous quantity 
of munitions stored and handled (currently 5.7 million tons of 
conventional munitions in 28,122 storage units) and the high inherent 
hazard of the material. EPA questions whether RCRA regulation would 
improve this safety record. (Indeed, RCRA regulation of ``waste'' 
portions of the stockpile might increase risk, by leading to increased 
movement of munitions.)
2. Munitions That Have Been Used/Fired That Are Subsequently Discarded
    Proposed Sec. 261.2(g)(2) addresses munitions that have been used 
or fired and then are subsequently recycled or disposed of. This 
section clarifies that RCRA management standards apply to the recycling 
or subsequent disposal (assuming the material is hazardous).
    Specifically, Sec. 261.2(g)(2) states that munitions that have been 
used or fired are solid waste when they meet the definition of 
discarded material in Sec. 261.2(a)(2), except as provided in 
Sec. 261.2(g)(3). In other words, a used or fired munition is 
considered a solid waste if it is abandoned or recycled, or if it is 
inherently waste-like (i.e., it meets the definition of ``discarded'' 
in Sec. 261.2(a)(2)). But the proposed language explicitly states that 
this definition does not include munitions used for their intended 
purpose (i.e., munitions covered under Sec. 261.2(g)(3)). As explained 
below, munitions used for their intended purpose are products not 
subject to RCRA regulation. Under this approach, munitions that have 
been fired and can no longer be reused would be potentially subject to 
Subtitle C regulation if removed from their landing spot and then 
transported off-range and stored, reclaimed, treated, or disposed of 
(assuming they are ``hazardous''). For example, former installations no 
longer under military control (i.e., Formerly Used Defense Sites or 
FUDS) often contain unexploded ordnance or other hazardous material. 
Used or fired munitions removed from their landing spot and transported 
off-site would have to be handled under RCRA subtitle C (assuming they 
are ``hazardous''). Similarly, used or fired munitions resulting from 
military research or training exercises, when removed from firing 
ranges and sent off-range for destruction would be considered solid 
waste. (As discussed below, use of a product for its intended purpose 
is not considered abandonment; Sec. 261.2(g)(3) specifies certain 
activities that fall within the intended use of military munitions.)
3. Munitions Used for Their Intended Purposes
    Under RCRA, the use of products for their intended purpose does not 
constitute waste management and is not subject to regulation. For 
example, RCRA does not regulate the use of pesticides by farmers, even 
though pesticides are discharged to the environment during use (see 40 
CFR 262.10(d) and 262.70). By the same logic, RCRA does not regulate 
the use of dynamite or other explosives during construction. Similarly, 
EPA has consistently held that the use of munitions (military or 
otherwise) for their intended purpose does not constitute waste 
disposal, and does not require RCRA permits. Proposed Sec. 261.2(g)(3) 
(i) through (iii) clarifies this point and provides specific examples 
of military activities that are excluded from RCRA regulation.
    a. Proposed Sec. 261.2(g)(3)(i)--Military training exercises. 
Proposed Sec. 261.2(g)(3)(i) clarifies that the use of munitions in the 
training of troops and explosive ordnance disposal (EOD) personnel is 
not regulated under RCRA. 

[[Page 56475]]
This is because such training constitutes the normal use of a product, 
rather than waste disposal.
    The proposed language also makes it clear that training includes 
training troops in the destruction of excess propellant and other 
munitions, when that destruction is integral to the product's use. 
Propellant used for artillery and mortar rounds comes in packaged 
allotments that vary by the type of weapon, round, and propellant. Each 
allotment is made up of individual increments to allow troops to vary 
the distance a shell is fired--the more increments used, the farther 
the shell is fired. The Services generally package the allotments for 
wartime use, that allow maximum firing capability. During firing 
exercises (whether for training or during wartime), the full allotment 
is often not needed. In these circumstances, military procedures for 
safety reasons require that unused increments of propellant be burned. 
(In wartime, procedures specify that the excess propellant be burned at 
the closest safe point.) To ensure that troops can safely destroy 
propellant during wartime, according to DOD, military training 
exercises involving artillery and mortar rounds typically include the 
burning of excess propellant.
    In EPA's view, the training of troops in the wartime use of 
munitions is a legitimate use that lies outside the scope of RCRA; the 
Agency has no reason to question DOD's position that training troops in 
the safe destruction of excess propellant constitutes legitimate 
training. Indeed, such training exercises typically follow detailed 
protocols for training troops in handling and burning of excess 
propellants. EPA in the past has concluded that training in the 
destruction of excess propellant is not subject to RCRA regulations, 
and is proposing in today's rule to codify this interpretation.
    Critics of DOD have expressed concern over the burning of excess 
propellant, pointing out that the amount of excess propellant destroyed 
may equal or exceed the propellant actually used in firing the weapons. 
Concerns of the public have particularly focused on air emissions, 
although the burning of propellant directly on the ground can lead to 
soil (and possibly groundwater) contamination. For this reason, the 
Services often conduct the burning in lined trenches. (In some cases, 
this precaution has been required by state regulators.) In other cases, 
local opposition to burning of excess propellant has led individual 
installations to abandon the practice (and in at least one case to 
abandon training altogether), or reduce the number of increments used.
    Some states and citizens groups have also argued that such burning 
could lead to sham training, when the primary purpose is really waste 
disposal. In enforcing today's proposal, EPA might look at whether 
propellant burning during a specific exercise was part of legitimate 
training--for example, that troops were in fact being trained and that 
the training was done in accordance with a specific training manual or 
training procedures. However, if these tests were met, EPA would 
consider the destruction of excess propellant to be normal use of 
munitions in a training exercise and not regulated under RCRA. In 
response to the concerns over sham training, DOD has suggested the 
existence and use of training manuals, and appropriate documentation of 
training activities should be accepted as evidence of training. EPA 
agrees that, should activities in a specific training exercise be 
challenged, such procedures and documentation would provide evidence 
that the activity did not involve waste disposal.
    More generally, EPA appreciates the concerns of critics of DOD on 
this issue, but it tentatively accepts DOD's argument that the practice 
is necessary for effective training. At the same time, however, EPA 
solicits comments on this issue, in particular whether it is 
appropriate or necessary, under RCRA, to impose specific restrictions 
on burning of excess propellant, and if so what those restrictions 
should be.
    b. Proposed Sec. 261.2(g)(3)(ii)--Weapons testing. Today's proposal 
also clarifies that munitions used in weapons research, development, 
testing, and evaluation programs are not regulated under RCRA. Testing 
munitions, or using munitions to test a weapon system, to determine 
their performance capabilities clearly falls within the definition of 
use of a material/product for its intended purposes. EPA also considers 
removal of a used or fired munition from a testing or training firing 
range for further testing and evaluation to be within the definition of 
use of a material for its intended purpose.
    c. Proposed Sec. 261.2(g)(3)(iii)--Range clearance operations as a 
result of training or weapons testing. The military services often 
conduct range clearance exercises as a result of weapons testing or 
training at firing ranges. During these exercises, military specialists 
sweep ranges for debris and unexploded ordnance, which may be destroyed 
on-site or shipped off-range for treatment. EPA considers range 
management to be a necessary part of the safe use of munitions for 
their intended purpose; thus the range clearance activity is an 
intrinsic part of the training or testing exercise. Furthermore, from 
an environmental perspective, it makes no difference whether ordnance 
explodes on impact or is subsequently detonated by an EOD specialist. 
Therefore, today's proposal would exclude range clearance exercises 
from RCRA subtitle C regulation. As mentioned earlier, however, when 
shipped off-range for destruction (but not for further evaluation) the 
debris or UXO is a solid waste, and if a hazardous waste, potentially 
subject to the RCRA subtitle C requirements.
4. Discharged Military Munitions at Firing Ranges
    In today's proposal, as well as in previous statements, EPA has 
taken the position that the discharge of a weapon does not constitute 
``waste management'' for the purposes of RCRA. This position is 
reflected in proposed Sec. 261.2(g)(3), discussed above, which excludes 
munitions used for their intended purposes from the definition of solid 
waste. At the same time, however, this proposal provides that spent 
munitions left in the environment may at some point become 
``discarded,'' in a RCRA statutory sense, and therefore may be 
potentially subject to various RCRA remedial statutory authorities. The 
most important of these authorities are: (1) RCRA section 7003, which 
authorizes EPA to require remedial action in cases in which solid 
wastes may present an imminent and substantial endangerment; (2) RCRA 
sections 3004(u) and (v), which require corrective action for releases 
of hazardous waste or constituents from any solid waste management unit 
at treatment, storage, or disposal facilities seeking a RCRA hazardous 
waste permit, and (3) RCRA section 3008(h), which allows EPA to require 
corrective action at interim status facilities.
    Proposed Sec. 261.2(g)(4) would specify how these authorities would 
apply to discharged munitions found at military firing ranges and 
impact areas. Proposed Sec. 261.2(g)(4)(i) states that munitions left 
at closed ranges, or at ranges transferred out of military control, are 
discarded material. ``Closed'' ranges are ranges taken out of service 
by the military as ranges and put to new uses incompatible with range 
activities--e.g., as storage or warehouse areas. However, an 
``inactive'' range--i.e., a range that is not currently being used, but 
that is still considered by the military to be a potential range area 
or that simply has not been put to any new use 

[[Page 56476]]
incompatible with range activities--would not be considered ``closed.''
    In the case of a closed range, the site is no longer being used as 
a range and it has been put to a new use incompatible with range 
activities. Under the proposal, any remaining munitions and debris that 
are left in place would be considered discarded and therefore such 
munitions and debris would be a ``solid waste'' according to the RCRA 
section 1004(27) definition. In the case of transferred ranges, the 
military no longer has control over the site and therefore the view 
taken by EPA in the proposal is that any remaining munitions and debris 
would have in effect been ``discarded.'' This is not to say that the 
transfer of the property would constitute the act of discarding. Under 
this approach, the property transfer would simply affirm that the 
remaining materials on the range could be considered to have been 
discarded.
    This approach to closed and transferred ranges would not be 
unprecedented. There are a number of scenarios under which hazardous 
wastes may be found in the environment, but were not put there through 
an act or circumstance that was a violation of RCRA or that otherwise 
subjects those wastes in place to subtitle C permitting or other 
requirements. A similar example of materials that may be classified as 
statutory ``solid waste'' under RCRA, but which are not automatically 
subject to RCRA subtitle C permitting or in-place waste management 
requirements, are wastes that had been disposed of before the effective 
date of RCRA. These materials would also potentially be subject to RCRA 
remedial authorities such as sections 7003, 3004(u) and (v), and 
3008(h), or to CERCLA remedial authorities.
    Today's proposal, however, contemplates that RCRA regulation of 
cleanups at closed and transferred ranges would be temporary. The 
proposal would further provide that, if DOD promulgates, pursuant to 
DOD's own statutory authorities, rules that allow for public 
involvement in cleanups of these ranges and that are fully protective 
of human health and the environment, then these DOD regulations would 
supersede RCRA regulations. The DOD regulations, rather than RCRA, 
would then govern range cleanups. EPA would issue a notice at the time 
DOD's regulations were issued, announcing that DOD cleanup regulations 
took precedence and that munitions at closed or transferred ranges are 
not to be considered RCRA statutory solid waste.
    This ``sunset'' provision reflects EPA's conclusion that the legal 
arguments supporting the characterization of munitions on closed or 
transferred ranges as ``solid waste,'' and the legal arguments opposing 
such a characterization are finely balanced, with the result that EPA 
has the discretion to select either interpretation pursuant to section 
3004(y). The choice of whether to define such munitions as ``solid 
waste,'' then, rests with EPA, and the proposal reflects EPA's views of 
how human health and the environment can best be protected, given the 
special hazards posed by military munitions.
    In fact, the applicability of RCRA corrective action authorities to 
ranges has long been subject to dispute. The Department of the Army's 
Regulation 200-1, Environmental Protection and Enhancement, explicitly 
states that RCRA sections 3004(u) and (v) do not apply to military 
ranges (AR-200-1, section 6-7(j), April 23, 1990). In its proposed 
subpart S corrective action regulations, EPA agreed, suggesting that 
military firing ranges and impact areas ``should not be considered 
solid waste management units,'' and therefore sections 3004(u) and (v) 
would not apply (55 FR 30809, July 27, 1990). On the other hand, 
several EPA regions and States have asserted that these authorities 
apply to military ranges.
    Today's proposal would resolve this question. If adopted, proposed 
Sec. 261.2(g)(4) would have the effect of bringing munitions at closed 
ranges and at ranges being transferred from military control under RCRA 
corrective action standards, if the installation were otherwise subject 
to RCRA permitting requirements. Under this proposed section, munitions 
at a closed range would be defined as solid waste, and the range (if it 
contained munitions or other contaminants) would constitute a solid 
waste management unit. Releases of hazardous wastes or constituents at 
or from the range would therefore potentially be subject to corrective 
action under sections 3004(u) and (v), or 3008(h). On the other hand, 
active and inactive ranges would not be considered solid waste 
management units. In addition, proposed Sec. 261.2(g)(4) would provide 
that, once DOD issued regulations for range cleanup, these DOD 
regulations would supersede RCRA cleanup authorities.
    In practice, RCRA corrective action would generally require an 
assessment of possible risks and releases at closed ranges. In some 
cases, sampling of environmental media (for example, soil, ground 
water, or surface water) might be required. The level of assessment 
needed would be consistent with the potential risk of exposure. It is 
important to emphasize, however, that the RCRA corrective action 
authorities do not automatically require cleanup to specific levels. 
For example, risks from unexploded munitions might be controlled, where 
appropriate, through access restrictions. In fact, DOD is already 
required to address range cleanup as part of its own restoration 
program. Thus, today's proposal, if adopted, would simply provide EPA 
or a delegated State with independent oversight of cleanups at RCRA 
sites, but would not affect the substantive cleanup standards that 
apply.
    Proposed Sec. 261.2(g)(4)(i) specifies that munitions remaining at 
closed ranges would be solid waste, for statutory purposes. Some may 
argue that EPA should propose to define munitions on active ranges as 
solid wastes as well. EPA, however, focused on closed rather than 
active ranges because it is technically difficult to address munitions 
on active ranges, and because periodic cleanups (other than range 
clearance exercises) at these ranges are likely to be of limited 
environmental value, particularly since the ranges are under direct 
control of the military and public access is restricted. Also, it could 
involve risk to cleanup personnel. EPA emphasizes, however, that non-
munition releases are unaffected by today's rule. Also, environmental 
releases from range activities that migrate off-range in ground-water 
or runoff, including from active ranges, would be statutory ``solid 
waste,'' and could be addressed under RCRA section 7003 . They could 
also be addressed under the Clean Water Act or CERCLA.
    EPA also considered including munitions on ``inactive'' as well as 
``closed'' ranges in proposed Sec. 261.2(g)(4)(i). This approach would 
have the effect of pushing RCRA sections 3004(u) and (v), and 3008(h), 
corrective action requirements earlier in the process. EPA, however, 
has not proposed this approach. The Agency recognizes that inactive 
ranges may frequently be reused, and questions the value of a formal 
corrective action process when the area will likely be subject to range 
use again. Furthermore, such an approach might only encourage 
installations to continue use of ranges, rather than discontinue their 
active use, for fear of triggering EPA or State oversight. In any case, 
any necessary remedial action would be required at the time of change 
in land use or transfer of the range from military control, since at 
that point the range would clearly be closed.
    There are very substantial legal arguments and, assuming DOD issues 

[[Page 56477]]
protective standards for range cleanup, compelling policy reasons for 
EPA to exercise its authority pursuant to Sec. 3004(y) in a way that 
will not lead to RCRA jurisdiction over range clean up at any stage. In 
Barcelo v. Brown, 478 F. Supp. 646, 668-669 (D. Puerto Rico 1979), the 
District Court held that materials resulting from activities that do 
not resemble industrial, commercial, mining, or agricultural 
operations, or community activities fall outside the definition of 
``solid waste'' in RCRA. Because ``uniquely military'' activities such 
as target practice at bombing ranges do not fall into any of these 
categories, the Court held that such activities were not regulated 
under RCRA. This conclusion also would be consistent with the approach 
EPA took in its Subpart S proposal (55 F.R. 30809, July 27, 1990). 
Thus, the Barcelo decision provides a rationale for excluding munitions 
remaining at firing ranges from the RCRA definition of solid waste. 
EPA, however, recognizes that the lines between ``uniquely military'' 
range activities and other activities (for example, target practice at 
small arms ranges) are not always clear. Therefore, EPA seeks comment 
on what sorts of range activities are properly considered uniquely 
military.
    Additional legal arguments in favor of this alternative approach 
have been advanced, including the argument that unexploded military 
munitions cannot become a ``discarded material'' because DOD is 
statutorily obligated by 10 U.S.C. 172 and 10 U.S.C. 2701 to address 
the human health and environmental hazards posed by its munitions and 
unexploded munitions whenever and wherever encountered. These statutory 
obligations, according to this argument, make it legally impossible for 
DOD to ``abandon'' such materials.
    DOD has an existing responsibility to address environmental 
restoration under the ``Defense Environmental Restoration Program'' 
(DERP) (10 U.S.C. 2701 et seq.), and CERCLA response authorities, and 
is generally responsible for preventing hazardous conditions related to 
munitions under 10 U.S.C. 172. EPA understands that DOD intends to 
propose clean up standards and a clean up process under these 
authorities in a rulemaking to commence by January 31, 1996, and to be 
completed by October 31, 1996. DOD intends that the rulemaking will be 
an open process, with ample opportunity for the active participation of 
the States and of the public. Further, the remedy selection and 
implementation process in the rule will include a significant role for 
the affected states and the interested public. The proposed rule will 
specifically address the role of State regulatory agencies and the 
interested public. DOD's proposed rule will address the nature of the 
role of the States and will request comment on this important issue. 
DOD will conduct this rulemaking in consultation with EPA. The 
rulemaking is to fully involve the public and the States and adequately 
address the safety, health, and environmental concerns posed by 
munitions on closed and transferred ranges.
    With the promulgation of such a rule, EPA believes that the 
proposed designation of munitions on closed or transferred ranges as a 
solid waste would be unnecessary. In this case, cleanups would be 
governed by clear regulations that are issued through a public process 
and that reflect the unique explosive safety considerations associated 
with munitions and the need for environmental protection. Therefore, 
regulation under a separate statute would be unnecessary. Further, if 
DOD promulgates such rules after EPA's proposed rule becomes final, 
then EPA believes that the DOD rules should supersede the EPA rule 
identifying munitions on closed or transferred ranges as solid waste.
    Citizens groups have expressed concern that, because CERCLA 
authorities are limited to ``hazardous substances'' which include 
``hazardous waste,'' unexploded munitions might escape CERCLA control 
if it were not defined as being a solid (or hazardous) waste. EPA 
believes this concern is unfounded, because it is the Agency's 
expectation that most unexploded munitions fit within the CERCLA 
definition of ``hazardous substance,'' independent of whether it is 
considered a solid waste.
    Finally, proposed Sec. 261.2(g)(4)(ii) would define military 
munitions fired off-range and not promptly rendered safe (if necessary) 
and retrieved to be solid waste, for the purposes of section 1004(27) 
of RCRA. Firing munitions that land outside of a range at a military 
installation would not be considered the intended use of the product 
(i.e., the mu
FR Doc. 95-27434 Military Munitions Rule: Hazardous Waste Identification and Management; Explosives Emergencies; Redefinition of On-Site
nition.) However, today's proposal would be based on the 
view that a failure to render safe and retrieve a munition that lands 
off range would be evidence of an intent to discard the munition. 
Rendering safe might include treatment to prevent explosion as well as 
destruction of the ordnance. If remedial action were infeasible--for 
example because the munition was deeply buried or could not be 
located--the operator of the installation would be required to maintain 
a record of the event as long as any threat remained.
5. Waste Materials Derived From Munitions Manufacture
    DOD and explosives manufacturers have often raised questions about 
the applicability of RCRA requirements to residues from munitions 
manufacture or manufacturing rejects. EPA, however, does not believe 
that munitions manufacture raises special regulatory issues, and it is 
not proposing to amend the current rules in this area. Instead, EPA's 
long-standing regulations defining when manufacturing products and 
secondary materials become solid wastes would continue to apply to 
residues and other byproducts of munitions manufacture and processing.
    These regulations are found in 40 CFR 261.2 and 261.6, and part 
266. Under these regulations, ``secondary materials'' from munitions 
manufacture or processing--including spent materials, sludges, by-
products, certain commercial chemical products, and scrap metals 
8--are considered to be solid waste depending on how they are 
managed (for example, see section 261.2(c)). And, if these materials 
are also ``hazardous,'' they are regulated under Subtitle C. On the 
other hand, off-specification ordnance or line rejects are considered 
products, and not wastes subject to regulation under RCRA. If these 
off-specification materials or rejects continue to meet the definition 
of military munitions, today's rule would define when they became 
hazardous waste.

    \8\ These terms are defined in 40 CFR 261.1(c) and 261.33.
---------------------------------------------------------------------------

    EPA believes that it would be inappropriate to change these long-
standing rules on the definition of solid waste in the context of 
today's rulemaking. At the same time, however, EPA is considering 
substantial amendments to its current rules to facilitate the recycling 
of secondary materials. These amendments would likely apply to 
secondary materials resulting from munitions manufacturing as well as 
secondary materials from other industrial and manufacturing operations.

C. Standards Applicable to Generators and Transporters

    Today's proposal would make two changes to the RCRA generator and 
transportation requirements. First, proposed Secs. 262.10(h) and 
263.10(c) would clarify that persons responding to immediate threats 
from explosives and military munitions are not subject to RCRA 
generator and transportation 

[[Page 56478]]
requirements. This proposal would apply to all explosives emergency 
responses (military and non-military) as well as to all conventional 
and chemical military munitions emergency responses. This proposal is 
discussed in more detail in Section IV.E of this preamble.
    Second, proposed Secs. 262.10(i), 263.10(d), 264.70(b)(2), and 
265.70(b)(2) would exempt stockpiled munitions (that are hazardous 
wastes under sections 261.2(g)(ii-iv)) shipped off-site to DOD-owned or 
controlled TSDF under DOD tracking procedures from RCRA manifest 
requirements. This exemption would apply not only to military 
personnel, but also to commercial carriers who have signed a compliance 
agreement with the Military Traffic Management Command, and who operate 
under the DOD system. This exemption would not apply to the off-site 
transport of non-stockpile munitions (e.g., excavated hazardous wastes 
under proposed Sec. 261.2(g)(1)(i) or range clearance munitions), since 
these materials are not subject to the same stringent DOD off-site 
shipping controls as are stockpiled munitions. Thus, the off-site 
shipment of buried or landfilled munitions, UXO, or munition debris 
would require the RCRA manifest and container markings (if the material 
were hazardous). The exemption would also not apply to the transport to 
a commercial (off-site) treatment, storage, or disposal facility.
    This proposal to exempt stockpiled military munitions from the RCRA 
manifest is based on EPA's conclusion that the DOD transportation and 
inventory controls are at least equivalent to the RCRA manifest 
controls, and on the safe transportation record of DOD.
    The DOD shipping standards and controls provide a ``closed-loop'' 
system similar to the RCRA manifest. These controls include the 
following forms: Government Bill of Lading (GBL) (GSA Standard Form 
1109) and associated Special Instructions and Notes (SIN) and Routing 
Instructions and Notes (RIN)--a series of files within an automated 
information base used in preparing the GBL continuation sheets; 
requisition tracking form DD Form 1348; the Signature and Talley Record 
(DD Form 1907); Special Instructions for Motor Vehicle Drivers (DD Form 
836); and the Motor Vehicle Inspection Report (DD Form 626). The DOD 
Standards, giving instructions on the use of these forms, include: Army 
Regulation (AR) 55-355--Transportation of Ammunition, Explosives, and 
Other Hazardous Materials; AR 725-50--Requisitioning, Receipt, and 
Issue System, Army Material Command (AMC)-R 385-100--Safety Manual; and 
DOD Directive 6055.13--Transportation Accident Prevention and Emergency 
Response Involving Conventional DOD Munitions and Explosives. ``A 
Report to Congress On the Adequacy of Department of Defense Safety 
Standards for Transportation of Hazardous Materials'' (1989) provides a 
summary of these controls. These documents are available in the public 
docket for today's proposal.
    Features of the DOD transportation system include pre-trip routing 
plans, safe havens and secure holding areas for vehicles experiencing 
difficulties or for overnight storage, safe haven hotline, satellite 
motor surveillance and tracking, shipper seals, dual driver protective 
and escort services, firefighting instructions, and electronic 
notifications/communications between shipper, carrier, and receiver. 
DOD munitions shipments also comply with the DOT hazardous materials 
transportation standards, which address packaging, labeling, marking, 
placarding, emergency response, training, and shipping documentation 
(49 CFR 100-179, 350-399). Although the DOT standards are not mandatory 
for Federal agencies, DOD's standards have made them mandatory (e.g., 
DOD 4500.9-Transportation and Traffic Management, January 26, 1989). 
EPA has reviewed these DOD documents and concludes that the resulting 
procedures, in conjunction with the applicable DOT standards, provide 
for consistency with the requirements of RCRA section 3003.
    As a result of these and other controls, DOD's transportation 
safety record is excellent. DOD makes approximately 50,000 shipments of 
military munitions and explosives annually, including shipments for 
demilitarization. According to the U.S. Army Technical Center for 
Explosives Safety's Explosives Safety Information Database and the 
DDESB's Historical Accident Database, there are about 20 minor non-
explosive incidents per year (e.g., minor traffic accidents). In the 
past 20 years, there have been only three accidents involving the 
munitions cargo itself, and of these three, only one resulted in an 
explosive detonation.
    Regarding the RCRA manifest and marking requirements, DOD is 
concerned about training its personnel in two separate systems, and 
maintaining both of these systems simultaneously--one for its own 
management of the military stockpile, and one (covering a small portion 
of the stockpile) for regulatory oversight. In addition, DOD is 
concerned about certain specific aspects of RCRA transport 
requirements--for example, the prohibition in Sec. 263.12 against 
storage of wastes in transport in unpermitted ``transfer facilities'' 
for longer than ten days. According to DOD, this restriction may 
conflict with its need to sequester shipments of munitions in 
designated safe havens in case of emergencies or unanticipated 
transportation difficulties. At the same time, critics of DOD are 
concerned about any system that is self-regulating, and question the 
burden that compliance with RCRA would impose.
    In light of the concerns of DOD and members of the public, EPA 
solicits comment on: (1) whether RCRA transportation requirements are 
needed for military munitions, given DOD's current practices, and 
whether other alternatives would be appropriate (e.g., the approach EPA 
adopted for ``universal wastes'' (60 FR 25492, May 11, 1995), which 
requires recordkeeping and a streamlined tracking system for certain 
recycled wastes), (2) whether transport of unused munitions (i.e., 
munitions in the stockpile) going for disposal should be handled 
differently from used or previously disposed of munitions, (3) whether 
other modifications (besides the manifest and marking exemptions) 
should be made to RCRA transportation requirements to address DOD 
concerns, and (4) whether shipment of munitions from FUDs sites or 
shipment to commercial waste management facilities should also be 
exempted from transportation requirements.
    EPA has not proposed other amendments to generator or transporter 
standards for waste munitions. DOD has raised concern that, under 
today's proposal, compliance with generator standards could be 
complicated and expensive, particularly because of 40 CFR 262.34 
requirements for contingency plans, inspections, personnel training 
plans, and tank or container storage. EPA emphasizes that facilities 
with military magazines used to store stockpiled munitions would not be 
subject to these requirements. These requirements apply to generator 
facilities that accumulate hazardous waste. Since in most cases a 
stockpiled munition in storage would not be regulated as waste until it 
was removed from the magazine, the facility (and the magazine) would 
not be subject to accumulation standards. Instead, installations 
removing stockpile munitions from storage for the purposes of disposal 
would be subject to the following standards: (1) Determining if the 
waste were hazardous and determining treatment requirements; (2) 

[[Page 56479]]
obtaining a RCRA identification number; (3) preparation of a RCRA 
biennial report and RCRA section 3016 biennial report; and (4) waste 
minimization program certification under RCRA section 3002(b). EPA 
solicits comment on the appropriateness of these requirements and 
whether they are necessary.

D. Storage of Military Munitions

    In enacting RCRA Sec. 3004(y), Congress sought to ensure that 
management standards for waste military munitions under RCRA would not 
be inconsistent with safety standards established under 10 USC 
Sec. 172. In the development of the FFCA, EPA and DOD jointly took 
forward a legislative proposal to provide for better integration of the 
DDESB explosives safety regulations and the specific requirements of 
the RCRA regulations. Although the specific statutory language of RCRA 
Sec. 3004(y) does not address integration of the RCRA standards with 
the DDESB explosives safety standards, this point was spoken to during 
the legislative development process and appears throughout the 
legislative history for RCRA Sec. 3004(y).
    Today's proposal includes a new subpart EE in 40 CFR Parts 264 and 
265 for military magazines storing hazardous waste munitions. This 
subpart combines the environmental features of the current RCRA storage 
unit standards with the DOD Explosives Safety Board (DDESB) munitions 
storage magazines standards to eliminate potential inconsistencies or 
conflicts between the RCRA and DDESB standards. The proposal does not 
require that all munitions be stored in magazines meeting these 
standards, but rather, provides an alternative for permitting the 
storage of military munitions waste under RCRA. Depending on the 
explosive hazards, military installations may still seek a permit and 
store waste munitions under the already existing 40 CFR parts 264 and 
265 standards for other types of storage units, including containers 
(subpart I), tanks (subpart J), containment buildings (subpart DD), and 
perhaps waste piles (subpart L). DOD would apply for a permit under the 
most appropriate of these sets of standards. The new subpart EE 
standards would be more appropriate for most military explosive and 
chemical munitions wastes, including products that DOD determines are a 
hazardous waste under today's Sec. 261.2(g)(1)(iv) and unexploded 
ordnance recovered from ranges and moved into storage prior to 
treatment or disposal.
    Consistent with the RCRA standards, today's proposal covers design, 
operation, monitoring, inspection, closure, and post-closure care, and 
it addresses the same concerns as do the other RCRA storage unit 
standards. The design and operating standards set containment and 
control performance standards to prevent contamination of soil, ground 
water, surface waters, and the air; they also address the DOD safety 
concerns to protect against explosions and to minimize the impact if 
one should occur. The proposal includes a primary barrier or 
containment system, which may be a bomb shell, a protective casing, a 
storage container, or a tank. For non-liquid wastes stored outdoors or 
in open storage areas, the unit design and operation must provide that 
the waste will not be in standing precipitation. This may be 
accomplished by a number of design and operating features, including a 
sloped impervious base or a pervious base, and/or waste elevation.
    For those few military munitions wastes that are liquids, in 
addition to the primary barrier or container, the unit would have to 
provide a secondary containment system. The secondary containment 
system design, operation, controls, and monitoring features may include 
a combination of sumps, pumps, drains, slope, double-walled containers 
or tanks, and/or elevated waste or other features that provide that any 
released liquids or precipitation are contained and promptly detected 
and removed from the waste area.
    The proposal covers the three basic designs of the DDESB storage 
standards: (1) earth-covered magazines (which are frequently used for 
shock sensitive and other munitions), (2) above-ground magazines (which 
might be used for munitions that do not pose a mass detonation or 
fragment producing hazard), and (3) outdoor or open storage areas 
(typically for munitions that do not pose a significant potential for 
explosion).
    Monitoring and inspections would be required to assure that the 
containment systems and controls are working as designed, that the 
wastes are stable, and that no contaminants that might adversely affect 
human health or the environment are being released from the magazine. 
In addition, all hazardous waste munitions would have to be inventoried 
at least annually, which is consistent with current DOD requirements.
    The closure standards mirror the other RCRA storage unit closure 
standards, requiring waste and contaminant removal and containment 
system decontamination.
    In addition to the subpart EE approach, EPA is considering and 
solicits comment on three alternative approaches.
    Under the first alternative, EPA would defer regulating the storage 
of waste military munitions under RCRA and subject them only to the 
explosives safety standards developed by DDESB and Services. DOD 
believes that this is statutorily permissible under the definition of 
hazardous waste found in RCRA Sec. 1004(5). This definition states that 
a ``hazardous waste'' is a ``solid waste, or combination of solid 
waste, which because of its quantity, concentration, or physical, 
chemical, or infectious characteristics may: (A) cause, or 
significantly contribute to, an increase in mortality or an increase in 
serious, irreversible, or incapacitating reversible illness; or (B) 
pose a substantial present or potential hazard to human health or the 
environment when improperly treated, stored, transported, or disposed 
of, or otherwise managed.'' With respect to the first criterion, DOD 
maintains there is no evidence that waste military munitions in storage 
cause or contribute to an increase in mortality or illness (save for 
the case of an accidental detonation of those munitions, which the 
DOD's excellent safety record shows is unlikely). Regarding the second 
criterion, DOD believes that the existing DOD controls over the storage 
and transportation of all munitions, including waste munitions, are 
adequate to prevent waste military munitions from posing a substantial 
or present threat to human health or the environment.9

    \9\ This logic does not extend to the treatment or disposal of 
waste munitions where EPA believes that full RCRA compliance is 
appropriate to protect human health and the environment.
---------------------------------------------------------------------------

    DOD's underlying rationale for this approach is as follows. The 
regulatory program developed by EPA in response to the RCRA mandate 
establishes standards for the storage of wastes both by those who 
generate the waste and those who provide permanent long-term storage, 
treatment, or disposal. These regulations were designed from the outset 
to address problems stemming from waste management at, for example, 
industrial operations that, prior to RCRA, were largely unregulated. 
Hence, EPA has historically examined the consequences of ``plausible 
mismanagement'' scenarios since there were no other controls over the 
management of these wastes. DOD believes that the case of military 
munitions is fundamentally different in that there are existing 
statutory 

[[Page 56480]]
authorities and regulatory programs addressing the storage of military 
munitions, including waste military munitions. The design and operation 
of all DOD ammunition storage units are conducted in compliance with 
standards set by DDESB and Service-specific regulations and 
implementing procedures. While these standards have safety as the 
primary concern, as explained earlier in this preamble, EPA and one 
interested party have reviewed the DDESB standards in detail and 
concluded that the technical design and operating standards of the 
DDESB meet or exceed RCRA standards in virtually all respects. There 
were gaps in certain procedural requirements and in areas unrelated to 
risks from explosive materials (e.g., in requirements to coordinate 
with local authorities or in closure requirements). At this point, 
neither EPA nor DOD is convinced that application of the RCRA standards 
in addition to DDESB and Service-specific standards would substantially 
increase protection of human health or the environment.
    For example, all military munitions-related operations, including 
those involving waste military munitions, are conducted in accordance 
with an approved Standing Operating Procedure (SOP) that provides 
detailed guidance on how personnel are to complete a specific activity. 
These SOPs address a wide variety of issues including, but not limited 
to: safety, security, environmental protection, and quality assurance. 
Each SOP must be approved by different functional areas at the 
installation, including: operations, safety, industrial hygiene, 
environmental compliance, security, quality assurance, and command 
representatives. Personnel implementing these SOPs are required to be 
trained and certified as qualified to perform the task to which they 
are assigned.
    Munitions storage units are also required to be inventoried on at 
least a yearly basis; however, some munitions (i.e., security class I 
or II) require inventory more frequently.10 During these 
inventories, in addition to counting the munitions present, the 
organization conducting the inventory updates other data elements in 
the record. Discrepancies are addressed through a research, 
investigation, and reconciliation process. All inventory-related 
activities are overseen by an independent quality control and quality 
assurance organization. Accounting procedures for these munitions are 
managed through two separate and distinct data systems, one at the 
installation and one at a central repository. The records kept at the 
installation include: quantity, location, ownership (i.e., specific 
organizational element within DOD), physical condition, and current 
inventory status.

    \10\ These are items with a high intrinsic value and items for 
which additional security procedures are required to prevent their 
theft.
---------------------------------------------------------------------------

    The actual storage procedures for military munitions are based on 
four factors that relate to the physical and chemical characteristics 
of these materials: (1) compatibility grouping; (2) hazard class; (3) 
net explosive weight (NEW); and (4) quantity distance formulae. These 
are contained in the DDESB standards ``DOD Ammunition and Explosives 
Safety Standards'' DOD 6055.9-STD, which may be obtained by contacting 
Ms. Lydia Sanchez, DOD Explosives Safety Board, 2461 Eisenhower Ave., 
Rm. 856-C, Alexandria, VA 22331-0600, or by
E-mail at [email protected], or from the EPA docket for 
today's rule.
    DOD also argues that the proposed approach in this first 
alternative is consistent with other aspects of RCRA, other findings in 
law, and the approach taken in other regulatory matters addressed by 
the Federal government.
    DOD points out that the DDESB standards for the storage of 
munitions were subjected to judicial review in Pratt v. Hercules, Inc., 
570 F. Supp. 773, Cir. 1982. In this decision the court held: For 
reasons cited in the court's earlier analysis * * * this court finds 
that the standards promulgated by the DDESB * * * were sufficient to 
comply with the mandate (10 U.S.C. 172) of eliminating undue risk of 
harm to those (inside and) outside the (facility). Further, the 
Occupational Safety and Health Administration has recognized the 
statutory authority of DDESB and their expertise in establishing 
requirements for the safe storage of military munitions. In a November 
8, 1990, rule OSHA stated: The DDESB has the final review and approval 
authority for any engineering changes at government owned facilities to 
assure that they are consistent with explosives safety standards and do 
not increase explosive risk (55 FR 46948, November 8, 1990).
    The most important piece of evidence in support of DOD's position 
is the Services' excellent record in providing for the safe storage and 
transportation of military munitions, as discussed elsewhere in this 
preamble.
    In addition, DOD believes that such an approach is wholly 
consistent with the President's initiative to reform Federal 
regulations to eliminate unneeded, duplicative, or superfluous 
requirements and is also entirely consistent with the President's 
requirements for promulgation of new regulations, as set forth in 
Executive Order 12866. Executive Order 12866 requires that any 
Executive Branch agency consider, as part of developing new 
regulations, whether existing regulations (or other laws) have created 
or contributed to the problem that a new regulation is intended to 
correct, and whether those regulations (or other laws) could be 
modified to achieve the intended goal of regulation more effectively.
    For these reasons, DOD asserts that waste military munitions do not 
have to be managed in accordance with RCRA standards for the storage of 
hazardous waste so long as they are stored in accordance with the 
regulations established by DDESB and the Service-specific implementing 
procedures and requirements. As a separate matter, however, to meet the 
obligations imposed by Executive Order 12866, DOD is working with EPA 
to address those limited areas in the DDESB standards where EPA has 
noted differences between the DDESB standards and RCRA standards. 
Therefore, EPA solicits comments as to what specific requirements are 
needed to make the DDESB standards consistent with RCRA.
    The second alternative approach would specify that waste munitions 
transported and managed in accordance with DDESB standards would not be 
an RCRA hazardous waste, and therefore would not be subject to Subtitle 
C standards. RCRA section 1004(5)(B) defines as ``hazardous'' those 
wastes that may present a hazard ``when improperly * * * managed.'' In 
addition, section 3001 of RCRA authorizes EPA to determine whether to 
designate a waste as ``hazardous.'' In determining whether a specific 
waste should be designated as ``hazardous,'' EPA traditionally 
considers plausible ``mismanagement scenarios.'' If significant risk 
were likely to occur under these scenarios, EPA would designate the 
waste as hazardous. The Agency, however, believes that it is not 
required to consider implausible mismanagement scenarios in determining 
whether a waste is hazardous. Thus, if mismanagement of a particular 
waste is implausible even without regulation under Subtitle C, EPA 
believes it has authority to refrain from regulating the waste under 
that subtitle. Under this approach, EPA would take into account DOD's 
record in storing waste munitions and DOD's existing storage standards 
in 

[[Page 56481]]
determining whether it was necessary to regulate waste military 
munitions as hazardous. Once these controls are taken into account, it 
would be argued that mismanagement of waste munitions is unlikely and 
regulation of these materials under Subtitle C is redundant.
    EPA is considering this approach in several other rulemakings and 
will be discussing the legal rationale in detail in those rulemakings. 
A more detailed legal discussion will be provided in EPA's forthcoming 
Hazardous Waste Identification Rule proposal, scheduled for publication 
in November 1995. Where it is relying on this approach, EPA typically 
intends to prescribe specific conditions or procedures to ensure that a 
waste would not be mismanaged. In the case of military munitions, EPA 
is considering a comparable approach. Under this approach, EPA would 
specify that waste munitions were not ``hazardous'' as long as they 
were stored in compliance with DDESB standards. Failure to store waste 
munitions in compliance with these standards would, in effect, render 
the material ``hazardous'' and constitute illegal management of 
hazardous waste.
    Under the third alternative, EPA would not establish special 
performance standards for waste military munitions under 40 CFR Parts 
264 and 265 Subpart EE; instead, EPA would simply specify in Parts 264 
and 265 that storage of waste munitions must meet DDESB standards. 
Waste storage units at interim status facilities would automatically be 
required to comply with these standards. For permitted units, EPA or 
the State would not specify particular standards in the permit, but 
would simply cite DDESB standards. This approach would allow EPA or 
State regulators directly to enforce DDESB standards, but would 
eliminate any possible inconsistency or redundancy between military and 
EPA standards.
    EPA took essentially the same approach in its regulations of 
underground storage tanks in 40 CFR Part 280. In this regulation, the 
Agency stated that compliance with the specific industry codes 
constituted compliance with EPA technical standards. One traditional 
concern with this general approach is that industry standards change 
from time to time, complicating regulatory referencing. In the third 
alternative approach under consideration in today's proposal, EPA would 
not expect to revise its RCRA standards every time the DDESB changed 
its standards. To do so would not only require constant EPA rulemaking, 
unnecessarily consuming limited resources; more important, perhaps, it 
would foster enormous confusion, because there would always be a time 
lag between DDESB's adoption of new standards and EPA's revision of the 
RCRA regulations. When DDESB came out with new standards, facilities 
would be required to meet them, and the standards would be enforceable 
through DDESB's regular compliance mechanisms. But (until EPA changed 
its standards), facilities would also remain subject to the older 
standards incorporated into the RCRA regulations. The state 
authorization process under RCRA would complicate the process even 
more, since it would lead to further delay in regulatory adoption of 
new DDESB standards. As a result, under this option, EPA would refer to 
the most recent DDESB standards. Given DOD and the Services' long 
record of safety in the storage of military munitions and the DDESB's 
independent status within the Department of Defense, EPA believes that 
this approach would be both enforceable and fully protective of human 
health and the environment.
    As mentioned above, EPA recognizes that certain RCRA requirements 
(e.g., those related to closure) are not in the DDESB standards. 
Therefore, EPA solicits comments on what specific requirements should 
be added to supplement the existing DDESB standards under any of the 
four alternatives and whether these should be added to the RCRA or the 
DDESB standards.
    All three of the alternative options discussed above rely on the 
DDESB standards. Military facilities would be assured that their basic 
obligation, in storing waste munitions, would be to comply with DDESB 
standards. If they were doing so, then under the first alternative, 
they would be excluded from RCRA coverage entirely; under the second 
alternative, the stored ``waste'' munitions would be RCRA solid waste, 
but would not be regulated as hazardous waste (e.g., permits would not 
be required); under the third option, ``waste'' munitions would be RCRA 
hazardous waste, but compliance with DDESB standards would constitute 
compliance with RCRA technical standards.
    The first alternative differs from the other two options in one 
important respect: under this alternative, EPA and authorized States 
would have no enforcement or regulatory role in the storage of waste 
munitions. Under the other alternatives, EPA and the States would have 
an oversight role, and regulatory agencies could enforce against 
facilities storing waste munitions out of compliance with DDESB 
standards. At the same time, however, the second alternative would 
provide significantly more relief to DOD and the Services than the 
third, and in many respects is similar to the ``deferral'' alternative. 
In particular, the approach (like the ``deferral'' approach) would 
eliminate permit requirements for storage of waste munitions (e.g., the 
procedures of Part 270, including public notice would not apply to 
storage of waste munitions, because waste munitions stored in 
compliance with DDESB standards would not be considered ``hazardous 
waste''); facilities generating waste munitions would not have to 
comply with generator standards (e.g., filing biennial reports); the 
land disposal prohibitions against extended storage would not apply; 
and permitted facilities receiving munitions for disposal would not be 
prevented from receiving that material, even if they had ``off-site'' 
prohibitions in their permits--since the material would only become a 
hazardous waste when it arrived at the treatment or disposal unit.
    EPA solicits comments on all three of these alternatives, as well 
as the subpart EE approach in today's rule.

E. Emergency Responses

    Today's proposal clarifies that RCRA generator, transporter, and 
permit requirements do not apply to immediate responses to threats 
involving military munitions or other explosives. EPA is proposing this 
language to address concerns of DOD and other emergency response 
officials that RCRA requirements may impede emergency responses, 
especially by causing delays or confusion.
    The current RCRA rules exempt emergency responses from full permit 
requirements in two ways: (1) permits are not required for immediate 
responses to a discharge of hazardous waste or an imminent and 
substantial threat of a discharge (Secs. 264.1(g)(8), 265.1(c)(11), and 
270.1(c)(3)); and (2) in cases of imminent and substantial endangerment 
to human health or the environment, a temporary emergency permit may be 
issued to a facility to treat, store, or dispose of hazardous waste--
this permit may be issued orally, if followed by a written emergency 
permit within 5 days, and may not exceed 90 days in duration 
(Sec. 270.61). (In clarification, EPA emphasizes that the exemption 
from permit requirements in the case of immediate responses is an 
exemption from the requirement for an emergency permit under 
Sec. 270.61, as well as from full RCRA permitting. Thus, an immediate 
response, under Federal regulations, 

[[Page 56482]]
would require neither a full RCRA permit nor an emergency permit.)
    EPA has received a number of inquiries, from both military and non-
military sources, seeking clarification of how these provisions apply 
to emergency situations involving explosives. In response, EPA has 
stated that it considers immediate responses to situations involving 
explosives to be exempt from RCRA permitting (including emergency 
permitting), and substantive requirements (e.g., the risk assessment 
requirements for OB/OD treatment) under the exemptions listed in 
Secs. 264.1(g)(8), 265.1(c)(11), and 270.1(c)(3). In EPA's view, time-
critical responses to explosives emergencies constitute immediate 
responses to a discharge, or imminent and substantial threat of a 
discharge, of hazardous waste. On the other hand, if an immediate 
response is not necessary to address the threat, and the response can 
be deferred, the responding personnel should seek a RCRA emergency 
permit under Sec. 270.61.
    The intent of today's proposal is to codify, with some 
clarifications, the existing EPA policy. Proposed 
Secs. 264.1(g)(8)(i)(D), 265.1(c)(11)(i)(D), and 270.1(c)(3)(i)(D) make 
it clear that explosive and chemical munition emergencies can be 
addressed without a RCRA permit (including an emergency permit). The 
proposal also clarifies, in Secs. 262.10(h) and 263.10(c), that, if an 
emergency response expert at the site determines it to be appropriate, 
the explosive material may be removed and transported for safe 
treatment without a RCRA manifest, and the transporter is not required 
to have a RCRA identification number. Such transport could be to an 
open space or an EOD range. This proposal, which EPA believes is 
necessary to allow prompt response to explosives emergencies, is 
consistent with current EPA policy.
    Today's proposal includes three new definitions in Sec. 260.10 to 
help clarify the scope of this exemption. The definition of 
``explosives and munitions emergency'' describes in detail what would 
constitute an emergency, and clarifies that an emergency situation 
includes suspect or unknown situations with significant uncertainties, 
including improvised explosive devices (IEDs, e.g., home-made bombs). 
The definition also states that the ``emergency response expert'' is 
responsible for determining whether an emergency exists.
    An ``explosives and munitions emergency response expert'' is 
defined to include all military and non-military personnel trained in 
the identification, handling, treatment, transport, and destruction of 
explosives or conventional or chemical military munitions. Military 
emergency response experts include DOD Explosives Ordnance Disposal 
(EOD) personnel, who are trained in responding to emergency situations 
involving military munitions and explosives, and DOD Technical Escort 
Unit (TEU) personnel, who are trained to respond to emergency 
situations involving chemical munitions. EOD and TEU personnel respond 
to on-installation and off-installation incidents involving military 
munitions. They also respond to requests by other Federal agencies or 
local civil authorities for assistance with incidents involving non-
military explosives. Non-military emergency response experts include 
the Bureau of Alcohol, Tobacco, and Firearms (BATF), Federal Bureau of 
Investigation (FBI), Central Intelligence Agency (CIA), Drug 
Enforcement Administration (DEA), US Postal Service, Federal Aviation 
Administration (FAA), other Department of Transportation (DOT), 
Department of Interior Bureau of Mines, State and local enforcement and 
emergency response personnel, and private sector explosives experts or 
specialists.
    Finally, an ``explosives and munitions emergency response'' is 
defined as all immediate response activities identified and carried out 
by the emergency response expert to eliminate the threat, including all 
handling, render-safe (e.g., methods to defuse or separate initiator 
from the explosive), transportation, treatment, and destruction 
activities. These emergency actions might involve defusing, detonation, 
or other treatment of ordnance in-place, or transportation to a safer 
location, including to an EOD range, to defuse, detonate, or otherwise 
to abate the immediate threat.
    DOD has raised three concerns regarding the regulation of emergency 
responses involving munitions or explosives under RCRA: (1) the effect 
of the RCRA land disposal restrictions on response actions, (2) 
possible RCRA corrective action liabilities, and (3) the possibility 
that treatment permits would be required for areas ``routinely'' used 
to handle emergencies. To the extent that any of these issues would 
delay or complicate responses to emergencies involving explosive 
material, EPA shares DOD's concerns. EPA's objective in proposing 
today's rule, and in clarifying the applicability of RCRA to emergency 
responses, is to remove regulatory impediments to emergency responses 
and to promote the safe and prompt management of explosives 
emergencies. EPA agrees with DOD that any regulatory impediments to 
prompt responses should be removed. DOD's three concerns are 
specifically discussed below.
    Concerning the first issue--the application of the RCRA land 
disposal restrictions to explosives emergencies--EPA continues to 
regard open burning/open detonation as not constituting land disposal. 
Therefore, the land disposal restrictions do not apply. See 51 FR 40580 
(November 7, 1986) and 52 FR 21011 (June 4, 1987). With regard to 
emergency responses to explosives involving deactivation methods other 
than open burn/open detonation, EPA notes that the treatment standard 
for reactive wastes is deactivation (i.e., removal of the hazardous 
waste characteristic of reactivity); see 40 CFR 268.42, Table 2. These 
standards are consistent with typical responses of an EOD team to an 
explosives emergency, and therefore the RCRA treatment requirements 
would not present a problem.
    The responding agencies primary concern on the second issue--the 
applicability of RCRA corrective action requirements--is the 
possibility that they might incur liability for site remediation or 
investigation when they conducted an emergency response. In response to 
this concern, EPA emphasizes that RCRA corrective action requirements 
would not fall on the responding agency and that today's proposal would 
not in any way change or increase the responding agency's liability.
    In the first place, the standard RCRA corrective action authorities 
in sections 3004(u), 3004(v), and 3008(h) would not be at issue, 
because they apply only to RCRA permitted or interim status facilities. 
Thus, these requirements would apply only if the emergency response 
took place at a RCRA treatment, storage, or disposal facility, and in 
this case any responsibilities for corrective action would fall on the 
facility owner, rather than on the responding authority. Furthermore, 
RCRA corrective action requirements do not apply to actions taken under 
the immediate response provisions of 40 CFR 264.1(g)(8), 265.1(c)(11), 
and 270.1(c)(3). Finally, in the case of a response conducted under a 
RCRA emergency permit (40 CFR 270.61(b), RCRA corrective action 
requirements would be excluded under 40 CFR 270.61(b)(6). This 
provision requires that emergency permits exclude conditions that would 
be inconsistent with the emergency situation that the permit was 
addressing. (EPA discussed this point in its RCRA corrective action 
proposal of July 27, 1990, 55 FR 30806.) Finally, if a response action 
is taken under CERCLA authority, CERCLA 

[[Page 56483]]
section 107(d)(1) provides that no person ``shall be liable under this 
title for costs or damages as a result of actions taken or omitted in 
the course of rendering care, assistance, or advice in accordance with 
the National Contingency Plan (NCP) or at the direction of an onscene 
coordinator appointed under such plan, with respect to an incident 
creating a danger to public health or welfare or the environment as a 
result of any releases of a hazardous substance or threat thereof.''
    DOD's concern on the third issue is that, if the responding agency 
transported an explosive device to an off-site treatment area, that 
area might become subject to RCRA permitting requirements. In emergency 
situations, DOD EOD teams and other responding agencies often find it 
safer to move explosive material away from the site where it was 
found--where it may threaten people or property--and transport it to an 
EOD range. In such cases, the fact that the material can be transported 
to another location does not necessarily mean that the dangerous 
situation is under control or the emergency is over. Rather, it 
indicates a need to find an area where site access is controlled and 
the site conditions are known (e.g., the distance to nearby structures 
is adequate and there are no subsurface utilities), so that the 
material can be disarmed, defused, deactivated, or destroyed with 
confidence that an explosion will not cause injury or collateral 
damage. In previous guidance, EPA has consistently stated that off-site 
treatment of explosives derived from emergency responses does not 
trigger permit requirements, as long as it is legitimately part of the 
emergency response.
    Because of this need for safe treatment sites, some EOD ranges may 
be regularly used to destroy explosives managed during emergency 
responses. The issue has been raised (and previous EPA guidance 
suggests) that some level of ``routine'' use of a particular range 
should trigger RCRA permit requirements. In EPA's view, however, the 
question of whether a permit is necessary hinges on the nature of each 
individual response (i.e., whether or not it involves an emergency), 
rather than on the number of times a given area is used for emergency 
responses. As long as the response to each individual incident was an 
emergency response, a RCRA permit would not be required.

F. Definition of ``On-Site''

    Today's proposal would modify the definition of ``on-site'' in 40 
CFR Sec. 260.10 by adding contiguous property under the control of one 
person that is divided by a public or private right-of-way, even if 
access is by travelling along (as opposed to across) the right-of-way 
to gain entry.11 The definition of on-site determines whether 
waste must be accompanied by a manifest during transportation and 
whether part 263 transporter requirements apply. (See, e.g., 40 CFR 
262.20(a) and 263.10(b).

    \11\ The current regulatory definition is: ``On-site means the 
same or geographically contiguous property which may be divided by 
public or private right-of-way, provided the entrance and exit 
between the properties is at a cross-roads intersection, and access 
is by crossing as opposed to going along, the right-of-way. Non-
contiguous properties owned by the same person but connected by a 
right-of-way which he controls and to which the public does not have 
access, is also considered on-site property.''
---------------------------------------------------------------------------

    Many facilities generating hazardous wastes (including most 
military installations) are found on large properties split by public 
roads. Under current regulations, a generator or TSDF who produced or 
managed waste at one location and moved the waste across the road for 
temporary storage would be moving the waste ``off-site,'' if the waste 
were transported along rather than directly across the road. The waste 
transported along the route currently requires a RCRA manifest. This 
requirement does not currently apply, however, if the wastes are 
transported directly across the road.
    Today's proposal would expand the definition of ``on-site'' to 
allow transportation without a manifest between contiguous properties 
controlled by the same person regardless of how access is gained from 
one parcel to another when such contiguous property is cut by a public 
or private right-of-way. All other aspects of the definition would 
remain the same.
    The question of how ``on-site'' is defined arose in the context of 
military munitions because many military installations are crossed by 
public roads. Today's proposal, however, would apply to hazardous waste 
generators and TSDFs in general, because the same situation exists for 
non-military entities. For example, a number of universities, with 
laboratories and other sources of small amounts of hazardous waste 
dispersed throughout campuses, have found that the manifesting and 
transportation requirements make it difficult to consolidate wastes at 
a single location for off-site shipment under the current requirements. 
Similarly, large industrial facilities may face the same administrative 
or logistical difficulties.
    Whether waste no longer subject to the manifest would continue to 
be subject to Department of Transportation (DOT) requirements will 
depend on whether that material is regulated under any other DOT hazard 
class. The Hazardous Materials Regulations (HMR, 49 CFR parts 171 
through 180) define a hazardous waste as any material that is subject 
to the Uniform Hazardous Waste Manifest Requirements of the EPA 
specified in 40 CFR part 262 (49 CFR 171.8). If a material is not 
subject to EPA's manifest requirements, it is not considered a 
``hazardous waste'' by DOT. However, such material may still be 
regulated as a hazardous material and subject to the HMR if it meets 
the defining criteria for one or more of the DOT hazard classes. 
Therefore, for these shipments, generators and/or TSDFs must decide if 
the waste falls under any of the other DOT hazard classes in order to 
determine if compliance with the DOT requirements under CFR parts 171 
through 180 is required.
    EPA believes that change in the definition of ``on-site'' will 
result on balance in an increase in protection of human health and the 
environment. EPA believes that the current definition of on-site may be 
discouraging consolidation within a generator's or TSDF's site, 
resulting in less control of the waste by the generator or TSDF. 
Removing barriers to consolidation of waste in one main area, rather 
than several small areas, will reduce the possibility that the public 
and the environment will come into contact with hazardous waste.
    EPA also believes that facilitating more central consolidation will 
allow generators and TSDFs to place such consolidation sites in more 
remotely located areas than they would if confined to the boundaries 
within rights-of-way, thereby increasing the safety of the public 
should an accident occur. The new definition gives generators and TSDFs 
such as military bases and universities more flexibility to determine 
where consolidation areas are situated. In addition, EPA believes this 
change in definition will have the added benefit of facilitating the 
building of safer accumulation areas because generators and TSDFs may 
be more likely to exceed regulatory requirements for consolidation 
areas if they are responsible for fewer consolidation sites overall. 
EPA expects the benefit of consolidation on balance outweighs the risk 
of allowing transportation without a manifest along a short stretch of 
road to which the public has access. EPA requests comments on these 
views of the net benefits regarding human health and the environment.
    In modifying the definition of on-site, EPA intends not to affect 
requirements 

[[Page 56484]]
other than the requirement that a manifest accompany hazardous waste 
shipments and whether part 263 transportation requirements apply. EPA 
requests comments on whether other requirements of the RCRA program are 
affected by this change.
    Even though hazardous waste traversing contiguous property may be 
``on-site'' for RCRA purposes, discharges on public rights-of-way could 
expose the public to a health risk. DOT and CERCLA reporting 
requirements would apply to such releases, but those authorities do not 
necessarily require actual clean-up of the release. EPA seeks comment 
on whether DOT and CERCLA authorities are sufficient to provide 
adequate protection to public health in the event of a spill or release 
on a public right-of-way considered on-site or if 40 CFR 263.30 and 
263.31 should continue to apply to any discharge of hazardous waste 
during transportation of hazardous waste on a public right-of-way 
regardless of whether it is on or off site. One way to implement that 
result could be to limit the on-site exemption from transporter 
requirements in Sec. 263.10(b) so that Secs. 263.30 and 263.31 would 
continue to apply to any discharge of hazardous waste on a public 
right-of-way even if it is considered ``on-site.''

G. Permit Modifications to Receive Off-site Waste Munitions

    Some RCRA permits at military installations have conditions 
prohibiting the receipt of ``off-site'' waste. Under these permit 
restrictions, if the point of generation of a waste munition is any 
place other than the permitted installation, then the waste munition 
could not be accepted at the facility for treatment, storage, or 
disposal without a permit modification. DOD maintains that this 
situation will cause a serious disruption of its munitions management 
program.
    EPA shares DOD's concern that today's proposal might disrupt DOD's 
ongoing munitions management program, and in response is proposing in 
today's rule a means to minimize this impact. Under this proposal, 
permitted facilities with prohibitions would be allowed to continue 
receiving waste munitions from off-site sources, upon notification to 
EPA, until a final permit modification is approved. In the case of 
interim status, facilities would be allowed to continue receiving off-
site wastes, although it might be necessary for the facility to amend 
its permit application.
    There are three specific requirements that would attach to this 
provision and be codified at 40 CFR 270.42(h). First, to be covered 
under this provision the permitted facility must be in existence on the 
date these rules go into effect. Second, for permitted facilities, the 
facility must submit a request for a Class 1 permit modification 
following the procedures of 40 CFR 270.42(a), on or before the 
effective date. Third, a permitted facility must develop and submit a 
Class 2 permit modification within 180 days of the effective date. If 
extenuating circumstances will not allow submission of a Class 2 
modification within 180 days, the facility may, within the 180 days, 
request the permitting agency to allow an extension for a specified 
period. The permitting agency shall respond to any request for an 
extension within 30 days. If no action is taken by the permitting 
agency within 30 days, the facility is considered to have been granted 
the extension. The permitting agency's action may be to extend the 30 
day response time.
    Today's proposal would not affect activities at interim status 
facilities. In some cases, however, the facility's part B permit 
application might include an off-site waste prohibition. In this case, 
the facility owner should amend the permit application.
    These proposed requirements are similar to the provisions for newly 
listed wastes in 40 CFR 270.42(g), which are designed to prevent the 
disruption of ongoing waste management activities, while bringing them 
promptly under regulatory control. EPA anticipates that the provisions 
in proposed 40 CFR 270.42(h) will similarly prevent disruption in the 
handling of waste munitions.
    Despite this proposed approach, DOD remains concerned about any 
option that might restrict the movement of munitions undergoing 
demilitarization or add, in its view, unnecessary paperwork costs and 
redundant reviews. As DOD has pointed out, operations at the receiving 
facility would remain the same after permit modifications, and 
conditions affecting human health and environmental protection would 
generally not change. For example, the provisions of the facility's 
permit addressing the types of waste, the quantities that might be 
treated at any given time, and permissible releases from the treatment 
process would likely remain the same. In which case, the permit 
modification would be a paperwork exercise, adding to costs but not 
adding to environmental protection. DOD's preferred option, discussed 
in Section V.A.1 of this preamble, would be to set the point of 
generation of the waste at the point when it arrives at the receiving 
unit. In this case, the waste would have been generated on-site, and 
its management would not constitute a permit violation.
    EPA understands DOD's arguments, but is concerned about the 
expectations of the public in the vicinity of permitted installations 
and the perception that permit conditions are being circumvented. The 
permit was issued through a site-specific public process, and, on its 
face, it appears to prohibit acceptance of just the sort of material 
that would be allowed under DOD's recommended approach. Arguably, the 
most consistent way to address this issue would be through a site-
specific permit modification, rather than a national rulemaking. EPA 
questions whether it would be appropriate to promulgate a regulation 
that would in effect remove off-site prohibitions from particular 
permits--at least as they applied to waste munitions--without site-
specific notice and an opportunity for comment.
    DOD has particularly cited the costs of permit modifications, 
which, it has argued, will cost in excess of $50,000 apiece. EPA 
questions whether a permit modification would be as costly as DOD 
estimates, especially since the modification would presumably only 
amend the permit's prohibition against off-site waste, and the permit's 
technical or procedural conditions would generally not be changed. EPA 
does agree, however, that permit modifications to allow ``off-site'' 
waste munitions will increase the compliance burden on DOD and the 
procedural burden on State regulators. In the economic analysis 
supporting this proposal, EPA has estimated that the permit 
modifications will cost $30,000 each (DOD's original estimate) and that 
24 permits would have to be modified (DOD's estimate). Much of the 
costs, in EPA's view, would result from the need for public outreach 
rather than technical work associated with the permit modification.
    However, in light of DOD's concerns, EPA requests comments on both 
the proposed approach and DOD's approach, and with specific 
recommendations on alternative means to address concerns regarding 
public involvement in the process.

V. Discussion of Major Alternatives

    In addition to the approach proposed in today's notice, EPA 
considered several alternatives to addressing major issues. These 
alternatives are discussed below. 

[[Page 56485]]

A. Stockpiled Munitions

1. Approach Based on Army Regulation 200-1
    DOD and the individual Services have historically taken the 
position that munitions in the military stockpile only become waste 
when they are received at a treatment or disposal unit. This approach 
has been incorporated into Army regulations in AR 200-1 and, until 
recently, guided military practice. DOD believes its traditional 
approach addresses two key points: (1) That military munitions are 
fundamentally different from most other types of industrial hazardous 
waste due to their unique physical and chemical characteristics, and 
(2) that the management of military munitions is different from the 
situation RCRA was enacted to address in that there are extensive 
management, oversight, and accountability controls already in place.
    The primary difference between DOD's and EPA's approach is in the 
definition of the waste's point of generation. Under the approach 
proposed today, the point of waste generation is generally when the 
waste is removed from storage for treatment or disposal; after that 
point, the munition is regulated as hazardous waste. Under the approach 
in AR 200-1, the point of generation is moved to receipt of the 
munition at the waste treatment or disposal unit. Before that point, 
the material would not be considered RCRA solid or hazardous waste.
    DOD is concerned about EPA's proposed approach in part because of 
the costs and paperwork associated with transporting hazardous waste. 
More important, however, DOD is concerned that many RCRA permits at 
military installations prohibit the receipt of ``off-site'' waste. 
DOD's AR 200-1 approach would solve both of these concerns.
    As discussed previously, EPA addresses these concerns in today's 
proposal by exempting DOD-controlled shipments between DOD 
installations from the RCRA manifest requirements, and by providing 
Class 1 followed by Class 2 permit modifications to allow for off-site 
wastes. Nevertheless, EPA solicits comments on both approaches.
2. DOD Interim Guidance
    A second alternative would be for EPA to codify the approach 
outlined by the military Services in interim guidance issued in 
November 1993. Under this Services-wide interim approach, munitions 
removed from the active inventory undergo review to determine whether 
they can be returned to service or used for other purposes. When the 
possibility of beneficial uses has been eliminated, the material would 
be transferred to a hazardous waste account (e.g., the ``BHW'' account) 
and orders to destroy the munition transmitted to the installations 
that held it. The munition would become a hazardous waste at the point 
the order was received by its custodian. The custodian, then, would 
become the generator of the ``waste''; generator standards would apply 
at the storage magazine; and RCRA land disposal restrictions would 
require prompt treatment and disposal.
    EPA has chosen not to propose this approach because, in EPA's view, 
it would not provide any significant increase in environmental 
protection. EPA also shares DOD's concerns that the approach might 
significantly complicate the military's safe management of the military 
stockpile.
    In particular, DOD has expressed two major concerns with this 
approach. First, if stockpiled munitions in a magazine were declared 
hazardous waste, that magazine would become subject to RCRA generator 
requirements, including RCRA tank, container, or containment-building 
standards; these standards, in turn, might require retrofitting of the 
units, even though they were designed according to military standards 
to protect against explosive hazards. Second, if the munitions were not 
removed from the magazine and shipped off installation within 90 days, 
the installation would become subject to RCRA permit requirements. 
Thus, the installation would be faced with the choice of readjusting 
its standard operating procedures for munitions to ensure that items in 
the BHW account were shipped off-site promptly, or seek a RCRA permit--
a 2 to 3 year process involving considerable time and paperwork. 
Neither result, in DOD's view, would lead to increased safety or 
environmental protection, and risk might actually increase because 
munitions would be moved more frequently.
3. Munitions Scheduled for Destruction by International Treaty
    Several interested parties have also suggested that when a munition 
has been slated for destruction by act of Congress or treaty, there is 
clear evidence of an intent to discard, and therefore the munition 
should be considered solid waste. For example, Congress has instructed 
the Department of Defense to destroy the chemical weapons stockpile by 
December 31, 2004 (National Defense Authorization Act for Fiscal Year 
(FY) 93), and, once the United States ratifies the Chemicals Weapons 
Convention and the Convention goes into force, the U.S. will be bound 
by international treaty to destroy the weapons within ten years. It has 
been argued that the act of Congress and U.S. ratification of the 
Convention (when that occurs) would constitute a decision to discard 
the munitions. Therefore, the munitions should be handled as hazardous 
waste.
    EPA has not taken this position to date in interpreting its solid 
waste regulations, and it is not proposing to do so in today's rule. 
Disarmament conventions and Congressional directives to demilitarize a 
weapons system should not, as a general matter, be interpreted as a 
decision to discard a munition. For example, the Chemical Weapons 
Conventions (like most such conventions) establishes a staged schedule, 
to allow mutual assurances that all signatories are fulfilling the 
agreement. Thus, the stockpiled munitions serve a deterrent purpose. 
Furthermore, the phased schedule laid out by the treaty would put the 
Army in violation of the RCRA land disposal restrictions, which would 
prohibit storage of ``waste'' munitions beyond one year (with limited 
extensions). Indeed, despite the convention, the stored munitions (with 
the exception of M55 rockets) remain part of the active military 
stockpile. While these ``products'' may be slated for phase-out in the 
future, they are still available (at least in theory) for use in the 
interim.
    Furthermore, EPA questions whether RCRA regulation would 
substantially add to the safe management of military munitions slated 
for destruction. Considerable attention, to be sure, has focused on the 
stability and safety of the chemical weapons stockpile. EPA notes, 
however, that the munition on which most of the discussion has 
centered--the M55 rocket--is already regulated as hazardous waste. 
Therefore, the main concern with the stored chemical weapons is already 
being addressed as a regulatory matter. In addition, under proposed 
Sec. 261.2(g)(1)(iii), leaking munitions would be regulated under 
subtitle C. Therefore, leaking chemical munitions would require 
regulation. Finally, the general safety of stockpiled chemical 
munitions is already the subject of considerable internal and external 
review. EPA, as a result, tentatively concludes that additional 
oversight under RCRA would not significantly increase protection of 
human health and the environment, while increasing the paperwork burden 
on the services and the workload burden of the regulatory agencies. 

[[Page 56486]]

4. Alternatives Based on Condition of Munition
    EPA also considered definitional approaches based on the 
characteristics of the munition. It has been suggested, for example, 
that munitions should become hazardous waste when they can no longer be 
used for their intended purposes. This determination might be based on 
an analysis of the munition itself, or on a weapon's predicted service 
life. Similarly, ``waste'' munitions might include off-specification 
munitions and munitions rendered obsolete because the armaments for 
which they were made no longer exist. EPA, however, has tentatively 
rejected this approach (except in the case of leaking or deteriorated 
munitions).
    First, this approach would be inconsistent with EPA's approach to 
other ``products.'' Commercial products do not automatically become 
solid waste when they can no longer be used for their intended 
purposes, and off-specification commercial products are not considered 
solid waste. These materials remain products; they may be put to other 
uses, or reprocessed for their original use, or simply stored for 
possible future uses without being brought under RCRA jurisdiction. The 
event that triggers RCRA jurisdiction is an intent to discard the 
material.
    Second, EPA believes that this approach would be extremely 
difficult for regulators to implement or enforce. The determination 
that a munition can or cannot be used for its intended purpose, for 
example, will often be highly technical and require detailed expertise 
in weaponry. EPA and State regulators typically will not have this 
expertise, and it will often be hard to rebut an assertion by military 
personnel that a munition can indeed be used. Service life is also 
likely to be an unreliable guide, because weapons do not necessarily 
lose their usefulness at the completion of service life, and 
reprocessing is often a possibility. Above all, EPA is concerned that 
this approach would not provide the clarity of regulations that 
Congress sought in passing the FFCA. Instead, the approach might lead 
to protracted disagreements between the regulators and the regulated 
over whether a particular munition is still usable as a munition, with 
no clear environmental issue at stake.
5. Regulation of the Demilitarization Process
    One of the primary benefits of RCRA regulation, according to 
critics of DOD, is that prompt treatment of waste would be required 
under the RCRA land disposal restrictions or LDRs. These restrictions 
require that hazardous waste be treated before it is disposed of in a 
land disposal unit. Furthermore, the statute prohibits facilities from 
storing waste before treatment, except as necessary to accumulate 
sufficient quantities for proper treatment and disposal (RCRA 
Sec. 3004(j)). (Under EPA's enforcement policy, if storage is for 
longer than a year, the person holding the waste must be able to 
demonstrate that the storage is necessary to accumulate sufficient 
quantities.) Thus, if ``obsolete,'' ``unserviceable,'' or ``unusable'' 
munitions were defined as hazardous wastes, their prompt destruction 
would be required.
    One commenter representing members of the commercial waste 
treatment industry--Strategic Environmental Analysis, Inc.--expressed 
strong support for applying RCRA oversight at the point when a munition 
became unserviceable. The commenter was particularly concerned that, if 
RCRA did not apply at this point, DOD could play ``shell games'' and 
store waste munitions indefinitely. At the same time, the commenter 
acknowledged the military's need for flexibility in evaluating and 
managing obsolete munitions. To address these concerns, it recommended 
a regulatory approach that would, in effect, bring the military 
demilitarization process under RCRA regulatory control and set specific 
schedules for the recycling or destruction of obsolete munitions.
    Under the recommended approach, EPA would define off-specification, 
obsolete, or unusable munitions as hazardous waste. This waste would be 
subject to technical management standards, but not yet covered by 
permit requirements or the land disposal restrictions. Hazardous waste 
munitions could be stored one to five years before they became subject 
to the land disposal restrictions. During this time, the holder of the 
munition or the appropriate service would investigate possible 
reclamation. If reclamation was determined to be feasible, it would be 
required within one to two years. (Reclamation would take place under 
specially designed RCRA standards.) If reclamation were not feasible, 
the munition would have to be treated according to land disposal 
standards within the regulatorily permitted time frames (i.e., one to 
two years), and the facility storing the munition would require a RCRA 
permit.
    This approach, EPA notes, establishes a radically new definition of 
``solid waste'' under RCRA, and applies RCRA standards to the 
reclamation of unused products--a considerable extension of the current 
regulatory scope of RCRA. In effect, the approach applies RCRA 
requirements to munitions within the demilitarization account and sets 
a limit on the time period a munition can remain within that account 
before reclamation or destruction.
    EPA has not proposed this approach for several reasons. First--
leaving aside the question of whether this approach is consistent with 
the statutory scope of RCRA--EPA does not believe it is appropriate in 
this rulemaking to develop a broadly expanded regulatory definition of 
solid waste. EPA also notes that commenters did not provide evidence of 
human health or environmental damage resulting from non-RCRA storage of 
``obsolete'' munitions, nor did it provide details on military ``shell 
games'' delaying proper treatment and disposal. While these problems 
may to a certain extent exist, EPA would require considerably more 
evidence before it imposed such a far-reaching regulatory scheme, going 
well beyond requirements that apply to commercial products.
    In addition, although EPA has not developed specific cost estimates 
for the recommended approach, it clearly could impose substantial 
burdens not only on DOD but also on regulators as well. Presumably, DOD 
would be subject to significant recordkeeping and reporting burdens 
necessary to identify obsolete munitions and document the 
demilitarization process. Reclamation of unserviceable munitions would 
for the first time come under regulation. EPA and the States would 
assume new obligations in inspecting perhaps thousands of storage units 
and ensuring that regulatory storage times were not exceeded. 
Fulfilling these obligations would likely divert limited resources from 
more pressing and demonstrable environmental problems. Especially given 
that the substantive requirements on stored munitions would not change, 
EPA questions whether this diversion of resources is justified.

B. Range Management

1. Active Ranges
    EPA has consistently taken the position that the use of products 
for their intended purpose does not constitute waste management and is 
not reached by RCRA. Thus, today's proposal excludes military munitions 
training and testing activities at firing ranges from RCRA regulation 
on these grounds.
    One group of interested parties has argued for an alternative 
approach at active ranges. According to this group, discharged 
munitions at military firing 

[[Page 56487]]
ranges clearly meet the definition of solid waste under RCRA; while 
their firing may or may not constitute ``disposal'' of a product, they 
become waste ``as soon as they hit the ground''--at this point they 
become discarded material that has served its useful purpose, that is 
no longer needed by the military, and that will never be retrieved for 
any useful purpose. These commenters argued that EPA should use its 
RCRA authority to tailor special regulations for military firing 
ranges. For example, DOD and the relevant services might be required to 
track all fired munitions, retrieve and properly dispose of fired 
munitions at reasonable intervals, and (where the munition is 
irretrievable) manage the munitions in place in a way that guarantees 
that off-site migration of contaminants does not occur.
    In support of the need for RCRA regulation, these commenters have 
pointed to examples of environmental damage or potential threats 
associated with firing ranges. These include deaths resulting from 
detonation of unexploded ordnance at old ranges transferred to non-
military ownership; numerous other cases of unexploded munitions or 
discarded chemical munitions found on non-military lands; threats to 
endangered species and other ecosystem damage from range activities; 
death of thousands of waterfowl resulting from consumption of residual 
white phosphorus at an artillery impact range; destruction of lands 
that are culturally or religiously significant to Native Americans; 
possible adverse health effects related to air emissions from military 
training exercises; soil and groundwater at ranges contaminated with 
heavy metals and possibly organic toxics; and high heavy metal 
concentrations in streambeds and fish tissue in the area of firing 
ranges.
    In developing this rulemaking, EPA has not independently reviewed 
each of these examples in detail, and it recognizes that in many cases 
the extent of damage has been the subject of considerable disagreement. 
Furthermore, it is often unclear whether an acknowledged problem was 
caused by weapons testing or training at ranges, or by other activities 
(e.g., open burning/open detonation of munitions, other waste 
management activities, or weapons manufacture and processing). At the 
same time, however, military ranges have clearly been associated with 
numerous environmental or safety concerns.
    Although it recognizes these concerns, EPA is not proposing in 
today's rule to regulate military firing range activities under RCRA. 
EPA is taking this approach for several reasons. Above all, EPA 
questions whether RCRA regulatory authority appropriately extends to 
activities like weapons testing or training exercises, which involve 
the use of a product and which are not ``waste management'' as it has 
historically been understood. Further, EPA questions whether the RCRA 
regulatory apparatus is well adapted to the regulation of weapons 
testing or training, especially given RCRA's reliance on site-by-site 
permitting and the existence of statutory constructs such as the land 
disposal restrictions and minimum technology requirements, which make 
no sense in the context of range management.
    DOD critics recognize the difficulties of applying conventional 
RCRA requirements (e.g., full RCRA permits) to every military firing 
range, and instead suggest a ``permit-by-rule'' approach. EPA has 
already issued permits-by-rule for certain activities involving 
hazardous waste; however, this approach has been adopted only in cases 
where detailed EPA regulations already exist under other statutory 
authorities implemented by EPA. The regulatory and legal difficulties 
of implementing such an approach at ranges are considerable. More 
particularly, EPA questions the need for, or (in some cases) the 
advisability, of the specific regulations suggested by DOD critics. A 
requirement that all fired munitions be tracked would be impracticable. 
It would also be largely redundant with existing DOD require
FR Doc. 95-27434 Military Munitions Rule: Hazardous Waste Identification and Management; Explosives Emergencies; Redefinition of On-Site
ments. (DOD 
Directive 6055.9-STD, Chapter 12, requires that installations maintain 
permanent records of ``known and suspected'' ranges, including 
``contamination by nomenclature, hazard, quantity, exact locations, and 
dud rates.'') Similarly, a requirement that ranges be regularly cleared 
for unexploded ordnance may be practical in some circumstances, but in 
others involve a significant safety threat to military personnel. 
According to DOD, the Air Force is able to require routine clearance of 
bombing ranges, where relatively limited numbers of unexploded 
munitions will be found. The Army, however, does not apply similar 
requirements to artillery ranges, given the much larger number of 
unexploded rounds.
    DOD and the Services already have regulations governing range 
activities. For example, the DDESB has issued regulations requiring 
recordkeeping, remediation, use restrictions, and similar requirements. 
EPA believes that the most appropriate approach to regulating day-to-
day range activities is through these standards, rather than under 
RCRA--given the poor fit of the statute. EPA recognizes that RCRA would 
provide for independent oversight and enforcement, an important factor 
for DOD critics. It questions, however, whether the costs of this 
oversight (both to DOD and the regulatory agencies) would be justified. 
This is particularly the case since many of the concerns addressed by 
commenters are already addressed under other independent authorities 
(e.g., DOD and the services must comply with the Endangered Species 
Act; CERCLA governs transfer of ranges (and other military property) to 
non-Federal ownership; and RCRA and CERCLA remedial authorities are 
available for conventional contamination resulting from range 
activities), or under any circumstances would fall outside the scope of 
RCRA (e.g., radioactive materials).
2. Applicability of Range Cleanup Authorities
    Proposed Sec. 261.2(g)(4)(i) states that munitions left in place 
are considered solid waste for statutory purposes when a range is 
closed, or when the property is transferred from military control. In 
practice, this requirement would make the munitions potentially subject 
to section 7003 of RCRA in the case of an imminent and substantial 
endangerment, and to sections 3004(u) and 3008(h) cleanup authorities 
if the facility was otherwise subject to RCRA permitting requirements. 
As discussed earlier in this preamble, the proposal also contains a 
sunset provision; munitions left in place at closed or transferred 
ranges would no longer be subject to RCRA cleanup authorities once DOD 
promulgates, pursuant to DOD's own statutory authorities, regulations 
governing cleanup of ranges.
    Some critics of DOD are likely to argue that today's proposal does 
not go far enough. Section 7003 is a discretionary authority for EPA, 
and sections 3004(u) and 3008(h) only apply at RCRA treatment, storage, 
and disposal facilities where releases have been identified. Thus, 
according to some commenters, these authorities may not adequately 
address closing ranges. It has been suggested that EPA impose ``post-
closure'' requirements on all closed military ranges where munitions or 
other contaminants are left in place. These requirements might or might 
not be imposed through a permit, and they might include permanent 
access restrictions, monitoring for off-site releases, and other 
requirements.
    EPA notes that current statutory restrictions on Federal property 
transfers cover many of the problems 

[[Page 56488]]
that a post-closure requirement would also address. For example, under 
section 120(h)(3) of CERCLA, deeds conveying contaminated real property 
from the United States to non-Federal ownership must contain a covenant 
that all remedial action necessary to protect human health and the 
environment has been taken with respect to any hazardous substances 
remaining at the property. All remedial actions necessary to protect 
human health and the environment have been taken when EPA determines 
that an approved remedy is constructed and operating properly and 
successfully. Therefore, current statutory provisions already provide 
considerable legal protection when a former range is transferred to 
non-Federal owners. The applicability of these safeguards is less 
clear, however, when a closed range on an installation is put to other 
uses, or a range is transferred from the Department of Defense to 
another Federal agency. EPA solicits comments on the need for ``post-
closure'' controls under RCRA to address these situations where 
property remains under Federal ownership. Comments should address the 
legal basis for such controls under RCRA; their need, given current 
controls (including current DOD regulations and practices); the level 
of controls that would be appropriate; and the regulatory burden of 
such controls, both on DOD and the regulatory agencies.

C. Alternative Organization (Separate CFR Part)

    EPA also sees the benefit of a uniform nationwide system for 
managing waste military munitions given DOD's national defense mission, 
nationwide presence, and logistical and operational needs. A consistent 
set of standards for waste military munitions will simplify integration 
of these rules with the DDESB and the Service requirements for the 
management of all military munitions (including waste munitions). 
Indeed, EPA believes Congress' intent in passing RCRA Sec. 3004(y) was 
to establish a clearer, uniform national system for regulating military 
munitions. To support such clarity and consistency, DOD has recommended 
that the regulations for military munitions be included in a separate 
part of the CFR, which would identify the requirements that apply to 
military munitions in one single place. The new part as proposed by DOD 
would still contain numerous cross-references to other pertinent parts 
and sections, and the military would still have to comply with other 
parts for their non-munitions hazardous waste.
    EPA solicits comment on whether this approach would be simpler to 
implement, easier to enforce, or easier for States to adopt. For an 
example of how the alternative approach might be structured, commenters 
may refer to the DOD proposal, which may be obtained by contacting Mr. 
Ed Sims, U.S. Army Environmental Center, Environmental Compliance 
Division, Mail Code SFIM-AEC-ECA, Building E4435, Aberdeen Proving 
Ground, Maryland 21010-5401, through the DOD Home Page on the Internet 
at: [email protected], or from the EPA docket for today's 
rule. DOD recommends that the standards be placed in 40 CFR part 269. 
However, EPA believes that, if this approach is adopted, it should be 
placed in a separate subpart in 40 CFR part 266, which addresses other 
special types of waste and waste management facilities.

VI. State Authority

    Under section 3006 of RCRA, EPA may authorize States to administer 
and enforce the RCRA hazardous waste program. (See 40 CFR part 271.) 
After authorization, the authorized State administers the program in 
lieu of the Federal government, although EPA retains enforcement 
authority under sections 3008, 7003, and 3013 of RCRA. New Federal 
requirements (such as today's rule) do not apply until they have been 
adopted by the State and the State's authorization has been revised to 
incorporate the requirements.12

    \12\ Under section 3006(g) of RCRA, enacted as part of the 
Hazardous and Solid Waste Amendments (HSWA) of 1984, new 
requirements imposed by HSWA take effect in authorized States at the 
same time as they do in unauthorized States--as long as the new 
requirements are more stringent than the previous requirements. EPA 
implements these new requirements until the State is authorized for 
them. Since today's proposal is not issued under HSWA authority, 
however, section 3006(g) does not come into play.
---------------------------------------------------------------------------

    Under RCRA regulations, States must adopt and become authorized for 
new requirements within one to two years of the rule's effective date, 
where the requirements are more stringent or broader than existing 
requirements. Section 3009 of RCRA allows States to impose standards 
that are more stringent than those in the Federal program.
    Today's proposal, however, raises an issue regarding State 
authority because Congress clearly expected EPA to develop national 
standards for waste munitions through the RCRA rulemaking process. 
Although today's rule would lay out such national standards, States 
under the standard RCRA approach could enforce their own more stringent 
standards under their own State programs. This situation, at least in 
theory, could lead to just the sort of piecemeal approach that the FFCA 
was intended to avoid. Therefore, EPA is also considering, in addition 
to the standard RCRA approach to state authorization, an approach that 
would prohibit States from enforcing broader or more stringent 
requirements with respect to military munitions. This alternative 
approach would be specific to today's proposal and, because it would be 
tied to the waiver of sovereign immunity in RCRA, it would in any case 
be limited to rules where the only regulated entity was the Federal 
government. In today's notice, EPA solicits comment on whether this 
alternative approach should be adopted for military munitions, or 
whether the standard RCRA approach should be maintained.
    As explained above, the standard RCRA approach would allow States 
to promulgate regulations that are broader in scope or more stringent 
than Federal requirements. And States would not be required to adopt 
new regulations that are less stringent or narrower than regulations 
they already have in place. The legal basis for this approach would 
derive from section 3009, which allows States to impose more stringent 
hazardous waste standards.
    Under the standard approach, therefore, states would be required to 
adopt those portions of today's rule that are more stringent or broader 
in scope than current requirements, but they would not be required to 
adopt less stringent requirements. Many of the requirements in today's 
rule, in EPA's view, are neither more nor less stringent than current 
regulatory requirements applicable to other materials. Therefore, it is 
EPA's view that under current RCRA procedures, the adoption of these 
regulatory provisions by States would not be required, as long as the 
States interpret their current regulations in a manner that is no less 
stringent than today's proposal. Similarly, States would not be 
required to pick up those portions of today's proposal if they are 
promulgated in a final rule, that are less stringent than existing 
requirements. The less stringent portions of the rule are: (1) the 
modified definition of ``on-site'' (Sec. 260.10), (2) the exemption of 
emergency responses involving explosives from RCRA transport 
requirements (Sec. 262.10(h)), and (3) the RCRA manifest exemption for 
the off-site shipment of stockpiled munitions waste from one DOD 
installation to another.
    Although states would not be required to adopt less stringent 
requirements under this approach, EPA strongly urges States to adopt 
all aspects of today's rule, when it is finalized, to ensure clear 

[[Page 56489]]
guidelines for handlers of waste military munitions, State regulators, 
and the public. EPA believes that, although States under the standard 
approach can be more stringent, Congress intended for the rule to 
establish a uniform and consistent program for the management of waste 
military munitions. Therefore, States should adopt these regulations as 
quickly as their legislative and regulatory processes will allow.
    In two respects, today's proposed rule is more stringent than 
current requirements: (1) The requirement that military installations 
retrieve munitions fired off-range (Sec. 261.2(g)(4)(ii)), and (2) the 
requirement that military personnel responding to immediate threats 
involving military munitions maintain records of the response 
(Secs. 264.1(g)(8)(iv), 265.1(c)(11)(iv), and 270.1(c)(3)(iii)). If 
these proposed requirements are promulgated in a final rule, authorized 
States must adopt these requirements as part of their State programs 
and apply to EPA for approval of their program revisions. Section 
270.21(e)(2) sets out the deadline for State program modifications; 
Sec. 271.21 identifies the procedures for revision of State programs.
    The above approach is consistent with the basic principles of 
Federal-State relationships under RCRA. EPA is committed to a 
partnership role with the States and recognizes that States should be 
the primary implementers of the hazardous waste program. Furthermore, 
it has been axiomatic under RCRA that States run their program under 
their own State laws, and that, while EPA sets national minimum 
standards, States may choose to be more stringent. At the same time, 
EPA recognizes DOD's very real need for national consistency in 
managing waste munitions, given DOD's national defense mission, nation-
wide presence, and logistical and operational needs. Therefore, as 
discussed above, EPA is considering an alternative approach, under this 
rule, that ensures national standards by precluding States from 
enforcing more stringent requirements on waste military munitions.
    This approach would characterize EPA's requirements as more 
stringent than the current requirements because they are new standards 
with respect to the identification of when munitions become waste and 
as to the storage and transportation standards for that waste. Under 
this alternative these regulations, when final, would not apply in an 
authorized State until such time as a State has revised its authorized 
program to incorporate these requirements and such revisions have been 
approved by EPA in accordance with 40 CFR Part 271. Additionally, this 
approach would interpret the waiver of sovereign immunity in section 
6001 of RCRA to prohibit broader or more stringent State requirements 
as applied to military munitions than those requirements adopted in a 
final rule under section 3004(y).
    The approach would be supported by policy and legal arguments that 
the generally available authority of the States to promulgate more 
stringent rules than those issued by EPA under RCRA is not present in 
the case of rules regulating military munitions. It could be argued 
that Congress in the FFCA intended that EPA, in consultation with DOD, 
the States, and interested parties, develop national regulations that 
reflected the views of all and that settled both the jurisdictional and 
the technical issues at one time.
    The argument that the scope of the waiver of sovereign immunity 
does not permit a State to impose more stringent requirements than 
those contained in Federal regulation depends on the language of RCRA 
6001. This section provides that Federal agencies ``shall be subject 
to, and comply with, all Federal, State, interstate, and local 
requirements * * * respecting control and abatement of solid waste or 
hazardous waste disposal and management in the same manner, and to the 
same extent, as any person is subject to under such requirements.'' (42 
U.S.C. 6961) EPA used similar language in section 118 of the Clean Air 
Act, in its General Conformity Rule (40 CFR Part 51) to preclude States 
from applying more stringent requirements on federally-assisted 
facilities. In the case of today's rule, it would be argued that, 
because military munitions are items unique to the military, more 
stringent state regulation would, by definition, apply only to the 
military and thus be discriminatory and outside the scope of the RCRA 
waiver of sovereign immunity in section 6001.
    EPA will carefully consider both approaches and their policy and 
legal interpretations. Interested parties, including both DOD and the 
States, are asked to comment on the approaches and to address such 
issues as the potential for discrimination against the Federal 
government; the extent to which the military munitions rule would or 
could apply to non-Federal entities or to entities whose costs of 
compliance would not ultimately be borne by the Federal government; the 
policy considerations raised by the dangers of military munitions and 
the operational needs of the Military Services; and the practical 
implementation issues that both approaches would raise.

VII. Administrative Requirements/Compliance With Executive Order

A. Regulatory Impact Analysis Under Executive Order 12866

    Under Executive Order No. 12866, (58 FR 51735 (October 4, 1993)), 
the Agency must determine whether the regulatory action is 
``significant'' and therefore subject to review by the Office of 
Management and Budget (OMB) and to the requirements of the Executive 
Order, which include assessing the costs and benefits anticipated as a 
result of the proposed regulatory action. 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 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.
    EPA has determined that today's proposal is a significant rule 
under Executive Order 12866 due to the novel policy issues raised. EPA 
estimates that today's rule results in national annual incremental 
costs of $190,000 per year. This represents a savings over baseline 
costs of approximately $1,400,000 to over $2,500,000 per year. For more 
information on the costs impacts of today's proposal and of some 
alternative approaches, see the Economic Impact Analysis of the 
Proposed Munitions Rule, in EPA Docket #* * *
1. Cost Analysis
    Today's rule focuses on several significant issues: (1) 
identification of munitions as waste; (2) transportation of munitions 
identified as wastes; (3) emergency response actions; (4) storage 
standards for waste munitions; and (5) maintenance and closure of 
military ranges. Some management approaches to some of these issues may 
result in significant costs to the U.S. Department of Defense. However, 
EPA has estimated that the proposed rule, which would relax 
requirements from the assumed full subtitle C regulations, would not 
result overall in additional financial burden to the Department of 
Defense or any military installation. In many instances, EPA has 
concluded that 

[[Page 56490]]
current Department of Defense standards meet RCRA standards and 
imposition of RCRA standards would result in regulations that are 
redundant.
    Over the next ten years, EPA estimates that the proposed regulation 
will result in annual costs of approximately $190,000 per year to the 
Department of Defense. The most significant costs would be related to 
the need for permit modifications for treatment and disposal facilities 
receiving off-site wastes. However, today's proposal results in avoided 
costs on the order of $1,400,000 to $2,500,000 per year over baseline. 
Baseline is based on DOD's current operations.
    The principal sources of annual savings include avoided costs for 
new permits, contingency plans, manifests, and retrofitted storage 
units. These avoided costs may be more significant when compared with 
other regulatory alternatives considered by EPA. For example, analysis 
of costs for several alternatives suggests that incremental costs for 
full Subtitle C requirements and active range management may exceed 
$410,000,000 per year. Other alternatives may exceed $430,000,000 per 
year. The cost analysis for the proposed rule and alternatives is 
presented in the technical background document, Economic Impact 
Analysis of the Proposed Munitions Rule. These higher costs result 
primarily from the costs for active range management.
    EPA did not develop specific costs for range closure and clean up 
(e.g., prior to property transfer) under RCRA 7003, 3004 (u) or (v), 
3008(h), CERCLA, the Defense Environmental Restoration Program, or Base 
Realignment and Closure. Such costs are site-specific, and in general, 
the Agency assumed that these costs would be similar under each 
authority or program, and thus, there would be no incremental costs 
under today's proposal. EPA requests that commenters submit additional 
information relevant to the cost for clean-up of closed ranges under 
each of these authorities.
2. Benefits Analysis
    EPA is proposing that stockpiled munitions generally do not become 
hazardous waste subject to regulation until they are removed from 
storage for transportation to a disposal unit. This proposal recognizes 
that current DOD storage regulations have been successful in protecting 
human health and the environment, and that additional requirements 
would be redundant. (See section IV.B.1.f of today's proposed rule). 
EPA also has proposed to exempt stockpiled waste military munitions 
from RCRA manifest and other requirements when transported because DOD 
standards provide comparable protection. The benefit of this proposed 
option is the annual cost savings of approximately $1,400,000 to over 
$2,500,000, due to avoided retrofits, permits, contingency plans, and 
manifest costs.
    One exception to the above proposed definition is for munitions 
that are ``deteriorated or damaged (e.g. leaks, broken seals) to the 
point that they cannot be put into serviceable condition, and cannot 
reasonably be recycled or used for other purposes.'' Such munitions 
would be designated as regulatory solid waste under the proposed 
regulation. The benefit of regulating deteriorated or damaged munitions 
as a solid waste under RCRA would be the assurance that such munitions 
would be stored and transported in a safe manner and destroyed as soon 
as safely feasible, thus limiting the potential exposure of humans or 
the environment to hazardous substances.
    The use of munitions for their intended purpose (i.e. discharged at 
a firing range) is not considered ``waste management'' for the purposes 
of RCRA. However, under today's proposal, used or fired munitions left 
in the environment become ``discarded'' in a RCRA statutory sense, and 
therefore are subject to RCRA statutory authorities, including RCRA 
sections 7003, 3004 (u) and (v), and 3008(h).
    The benefits of considering used or fired munitions as 
``discarded'' at the point of property transfer or discharge off-
installation range are especially clear in the case of unexploded 
ordnance (UXO). Military personnel are trained in handling explosive 
munitions, and military installations have security precautions to 
prevent civilian exposure to explosive devices. Once property 
containing UXO leaves military control, however, there is no assurance 
that the same measure of protection would be maintained, even if it is 
transferred to another Federal Agency.
    The Department of Defense Explosives Safety Board Accident Database 
reports that since 1943, there have been a total of 30 non-operational 
accidents from military unexploded ordnance, resulting in seventy-seven 
injuries and twenty-six fatalities. In many cases, these accidents 
occurred after property transfer. As more and more bases undergo 
closure, the potential for accidents from abandoned unexploded ordnance 
will increase. By including used or fired munitions which leave 
military control in the statutory definition of ``solid waste,'' EPA 
and authorized States will be able to provide independent oversight of 
property transfers involving former ranges.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) of 1980 requires Federal 
agencies to consider ``small entities'' throughout the regulatory 
process. Section 603 of the RFA requires an initial screening analysis 
to be performed to determine whether small entities will be adversely 
affected by the regulation. If affected small entities are identified, 
regulatory alternatives must be considered to mitigate the potential 
impacts. Small entities as described in the Act are only those 
``businesses, organizations and governmental jurisdictions subject to 
regulation.''
    EPA has determined that today's proposal will primarily affect 
Federal Agencies, such as the Department of Defense, and therefore few, 
if any, small entities will be affected. Furthermore, since today's 
proposal generally provides savings over current requirements, EPA 
believes that any small entities engaged in activity covered by the 
rule will not be adversely affected. However, the Department of Defense 
has raised the issue that these regulations may adversely impact 
businesses doing munitions management activities for the Department of 
Defense, the Department of Energy, the Coast Guard, and the National 
Guard. EPA requests that commenters submit additional information 
related to the types of businesses that may be impacted, the number of 
small businesses that would be affected, and the extent of adverse 
impacts to these businesses.

C. Paperwork Reduction Act

    The Paperwork Reduction Act of 1980, 44 USC 350l et seq., 
authorizes the Director of OMB to review certain information collection 
requests by Federal agencies. EPA has determined that the recordkeeping 
and reporting requirements of this proposed rule do not constitute a 
``collection of information'' as defined in 44 USC 3502(4) because they 
apply to Federal entities (i.e. DOD, DOE, Coast Guard, and National 
Guard), or for those sections that apply to non-Federal entities (e.g. 
emergency responses) they do not impose new recordkeeping or reporting 
requirements.
    Comments regarding this determination may be sent to Ken Shuster 
(RE: ICR Determination), EPA (Mail Code 5303W), 401 M St, SW, 
Washington, D.C. 20460. 

[[Page 56491]]

D. Unfunded Mandates

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.L. 
104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. When a written statement is needed for an EPA rule, section 
205 of the UMRA generally requires EPA to identify and consider a 
reasonable number of regulatory alternatives and adopt the least 
costly, most cost-effective, or least burdensome alternative that 
achieves the objectives of the rule. The provisions of section 205 do 
not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, giving 
them meaningful and timely input in the development of EPA regulatory 
proposals with significant Federal intergovernmental mandates, and 
informing, educating, and advising them on compliance with the 
regulatory requirements.
    EPA has determined that this rule does not contain a Federal 
mandate that may result in expenditures of $100 million or more for 
State, local, and tribal governments, in the aggregate, or the private 
sector in any one year. EPA has estimated that the total potential cost 
to State, local, and tribal governments would not exceed approximately 
$190,000 per year over ten years or $1,300,000 in any one year. Thus, 
today's rule is not subject to the requirements of sections 202 and 205 
of the UMRA.

VIII. References/Docket

    The regulatory docket for this proposal contains a number of 
background materials. To obtain a list of these items, contact the RCRA 
Docket at 202-260-9327 and ask for the list of references in Docket #F-
94-MMP-FFFFF.

List of Subjects

40 CFR Part 260

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Hazardous waste, Reporting and 
recordkeeping requirements.

40 CFR Part 261

    Hazardous waste, Recycling, Reporting and recordkeeping 
requirements.

40 CFR Part 262

    Emergency responses, Exports, Hazardous materials transportation, 
Hazardous waste, Imports, Labeling, Packaging and containers, Reporting 
and recordkeeping requirements.

40 CFR Part 263

    Emergency responses, Hazardous materials transportation, Hazardous 
waste, Reporting and recordkeeping requirements.

40 CFR Part 264

    Air pollution control, Emergency responses, Hazardous waste, 
Insurance, Storage containers, Reporting and recordkeeping 
requirements, Security measures, Surety bonds, Treatment and disposal.

40 CFR Part 265

    Air pollution control, Emergency responses, Hazardous waste, 
Insurance, Storage containers, Reporting and recordkeeping 
requirements, Security measures, Surety bonds, Treatment and disposal.

40 CFR Part 270

    Administrative practice and procedure, Confidential business 
information, Emergency responses, Hazardous materials transportation, 
Hazardous waste, Permit application requirements, Permit modifications, 
Reporting and recordkeeping requirements.

    Dated: October 31, 1995.
Carol M. Browner,
Administrator.
    For the reasons set forth in the preamble, 40 CFR Parts 260, 261, 
262, 263, 264, 265, and 270 are proposed to be amended as follows:

PART 260--HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL

    1. The authority citation for Part 260 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6921 through 6927, 6930, 
6934, 6935, 6937 through 6939, and 6974.

    2. Section 260.10 is amended by revising the definition of ``on-
site'' and by adding the following definitions, in alphabetical order, 
to read as follows:

Sec. 260.10  Definitions.

* * * * *
    Explosives or munitions emergency response expert means Department 
of Defense (DOD) emergency explosive ordnance disposal (EOD) or 
technical escort unit (TEU) personnel; DOD-certified civilian 
contractor personnel; or other trained Federal, State, local, or 
civilian chemical or conventional munitions or explosives handling, 
render-safe, destruction, and response experts.
    Explosives or munitions emergency means a situation involving the 
suspected or detected presence of unexploded explosive ordnance (UXO), 
damaged explosive ordnance, an improvised explosive device (IED), other 
potentially explosive material or device, or other potentially harming 
military chemical warfare material or device, that creates an imminent 
threat to human health, including safety, or the environment, including 
property, as determined by an emergency response expert, and calls for 
immediate action by the emergency response expert to eliminate the 
threat.
    Explosives or munitions emergency response means all immediate 
response activities by emergency response experts to eliminate an 
emergency threat by treating or destroying the ordnance in place or 
rendering the ordnance safe and/or removing it to another location for 
treatment or destruction. An emergency response includes transportation 
and treatment to the extent necessary to abate the immediate threat. 
Emergencies and expert responses can occur in the public sector or on 
Federal installations.
* * * * *
    Military munitions means all ammunition products and components 
produced or used by or for the U.S. Department of Defense or the U.S. 
Armed Services for national defense and security, including military 
munitions under the control of the Department of Defense, the U.S. 
Coast Guard, the U.S. Department of Energy, and National Guard 
personnel. Military munitions include: gaseous, liquid, and solid 
propellants, explosives, pyrotechnics, chemical and riot control 
agents, smokes, and incendiaries used by DOD components, including bulk 
explosives and chemical warfare agents, chemical munitions, rockets, 
guided and ballistic 

[[Page 56492]]
missiles, bombs, warheads, mortar, artillery, small arms ammunition, 
grenades, mines, torpedoes, depth charges, cluster munitions and 
dispensers, demolition charges, and devices and components thereof. 
Military munitions do not include wholly inert items, improvised 
explosive devices, and nuclear weapons, devices, and components thereof 
managed under DOE's nuclear weapons program.
    Military range means designated air, land, and water areas set 
aside, managed, and used to test and evaluate military explosives, 
other ordnance, and weapon systems, and to train personnel in their use 
and handling. Ranges include firing lines and positions, firing lanes, 
impact areas, and buffer zones with restricted access and exclusionary 
areas.
* * * * *
    On-site means the same or geographically contiguous property which 
may be divided by public or private right-of-way, provided the entrance 
and exit between the properties is at a cross-roads intersection, and 
access is by crossing as opposed to going along, the right-of-way. 
``On-site'' also includes contiguous property comprised of an 
individual generation site and/or facility under the control of the 
same person, regardless of whether it is divided by a public or private 
right-of-way and whether access is by crossing, as opposed to going 
along, the right-of-way. Non-contiguous properties owned by the same 
person but connected by a right-of-way which the owner controls and to 
which the public does not have access is also considered ``on-site'' 
property.
* * * * *

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

    1. The authority citation for Part 261 is revised to read as 
follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y), and 
6938.

    2. Section 261.2 is amended by revising paragraph (a)(2) 
introductory text and adding a new paragraph (g) to read as follows:

Sec. 261.2  Definition of solid waste.

    (a) * * *
    (2) Except for military munitions addressed in Sec. 261.2(g), a 
discarded material is any material which is:
* * * * *
    (g) Military munitions. (1) Unused military munitions are discarded 
material and therefore a solid waste when any of the following occurs:
    (i) The munition is abandoned by being disposed of, burned, or 
incinerated, or treated prior to disposal, or
    (ii) The munition is removed from storage in a military magazine or 
other storage area for the purpose of being disposed of, burned, or 
incinerated, or treated prior to disposal, or
    (iii) The munition is deteriorated or damaged (e.g., the integrity 
of the round is compromised by cracks, leaks, or other damage) to the 
point that it cannot be put into serviceable condition, and cannot 
reasonably be recycled or used for other purposes, or
    (iv) The munition has been declared a solid waste by an authorized 
military official.
    (2) Used or fired military munitions are solid wastes if they meet 
the definition of discarded material in Sec. 261.2(a)(2), unless they 
are excluded by paragraphs (a)(1) or (g)(3) of this section.
    (3) Use of military munitions for their intended purpose does not 
constitute discard and is not subject to regulation under parts 260 
through 271 of this chapter. ``Use for intended purpose'' includes:
    (i) Use in training of troops and of explosives and munitions 
emergency response experts (including training in proper destruction of 
excess unused propellant or other munitions during training exercises),
    (ii) Use in research, development, testing, and evaluation of 
military munitions, weapons, or weapon systems, and
    (iii) Recovery, collection, and on-range destruction of unexploded 
ordnance and contaminants during range clearance operations at active, 
inactive, or closing ranges.
    (4) Military munitions at ranges. Munitions discharged during 
military activities at ranges are discarded material (and therefore 
solid waste) for purposes of Sec. 1004(27) of RCRA under the following 
circumstances:
    (i)(A) The munition is left in place at the firing range at the 
time the range is closed or when the range is transferred from military 
control, whichever occurs first, except that,
    (B) Upon the issuance of DOD regulations that govern the cleanup of 
munitions on closed or transferred ranges and that provide for State 
and public participation in the cleanup decisionmaking process at 
specific sites, these DOD regulations shall supersede all RCRA 
authority over military munitions at closed and transferred military 
ranges.
    (ii) The munition lands off-range and it is not promptly rendered 
safe (if necessary) and retrieved. To the extent feasible, any imminent 
and substantial threats associated with any remaining material must be 
addressed. If remedial action is infeasible, the operator of the range 
must maintain a record of the event for as long as any threat remains. 
The record must include the type of munition and its location (to the 
extent the location is known).
    (5) Military munitions that have not been discharged, including 
subcomponents thereof, do not become a solid waste when they are being 
repaired, reused, recycled, reclaimed, disassembled, reconfigured, or 
otherwise subjected to materials recovery activities.

PART 262--STANDARDS APPLICABLE TO GENERATORS OF HAZARDOUS WASTE

    1. The authority citation for Part 262 continues to read as 
follows:

    Authority: 42 U.S.C. 6906, 6912(a), 6922 through 6925, 6937, and 
6938, unless otherwise noted.

    2. Section 262.10 is amended by adding, before the notes, new 
paragraphs (h) and (i) to read as follows:

Sec. 262.10  Purpose, scope, and applicability.

* * * * *
    (h) Persons responding to an explosives or munitions emergency in 
accordance with sections 264.1(g)(8)(i)(D) or (iv) or 
265.1(c)(11)(i)(D) or (iv), and 270.1(c)(3)(i)(D) or (iii) are not 
required to comply with the standards of this part.
    (i) A generator of military munitions that become solid wastes 
under 40 CFR 261.2(g)(1)(ii through iv) is exempt from subpart B and 
Secs. 262.32(b), 262.40(a), and 262.42 of this part when the munition 
is shipped under Department of Defense shipping controls (including at 
a minimum: Government Bill of Lading (GBL) (GSA Standard Form 1109) and 
associated Special Instructions and Notes (SIN) and Routing 
Instructions and Notes (RIN)--a series of files within an automated 
information base used in preparing the GBL continuation sheets, 
requisition tracking form DD Form 1348, the Signature and Talley Record 
(DD Form 1907), Special Instructions for Motor Vehicle Drivers (DD Form 
836), and the Motor Vehicle Inspection Report (DD Form 626) from a 
federally-owned or operated installation to a DOD-owned or operated 
treatment, storage, or disposal facility, except that the Federal 
agency must report to the EPA Regional Administrator any waste that was 
not received by the receiving facility within 

[[Page 56493]]
45 days of the day the waste was shipped.
* * * * *

PART 263--STANDARDS APPLICABLE TO TRANSPORTERS OF HAZARDOUS WASTE

    1. The authority citation for Part 263 continues to read as 
follows:

    Authority: 42 U.S.C. 6912(a), and 6922 through 6925.

    2. Section 263.10 is amended by redesignating paragraph (c) as (e), 
and adding new paragraphs (c) and (d) to read as follows:

Sec. 263.10  Scope.

* * * * *
    (c) The regulations in this part do not apply to transportation 
during an explosives or munitions emergency response, conducted in 
accordance with Secs. 264.1(g)(8)(i)(D) or (iv) or 265.1(c)(11)(i)(D) 
or (iv), and 270.1(c)(3)(i)(D) or (iii).
    (d) The regulations in this part do not apply to the transportation 
of military munitions that become solid wastes under 40 CFR 261.2(g) 
(1)(ii through iv) when shipped under Department of Defense shipping 
controls (including at a minimum: Government Bill of Lading (GBL) (GSA 
Standard Form 1109) and associated Special Instructions and Notes (SIN) 
and Routing Instructions and Notes (RIN)--a series of files within an 
automated information base used in preparing the GBL continuation 
sheets, requisition tracking form DD Form 1348, the Signature and 
Talley Record (DD Form 1907), Special Instructions for Motor Vehicle 
Drivers (DD Form 836), and the Motor Vehicle Inspection Report (DD Form 
626) from a DOD-owned or operated installation to a DOD-owned or 
operated treatment, storage, or disposal facility.
* * * * *

PART 264--STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE 
TREATMENT, STORAGE, AND DISPOSAL FACILITIES

    1. The authority citation for Part 264 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6924, and 6925.

    2. Section 264.1 is amended by adding new paragraphs (g)(8)(i)(D) 
and (g)8)(iv) to read as follows:

Sec. 264.1  Purpose, scope and applicability.

* * * * *
    (g) * * *
    (8) * * *
    (i) * * *
    (D) An immediate threat to human health, public safety, property, 
or the environment, from the known or suspected presence of military 
munitions, other explosive material, or an explosive device.
* * * * *
    (iv) In the case of an explosives or munitions emergency response, 
if a Federal, State, or local official acting within the scope of his 
or her official responsibilities, or if an explosives or munitions 
emergency response expert determines that immediate removal of the 
material or waste is necessary to protect human health or the 
environment, that official or expert may authorize the removal of the 
material or waste by transporters who do not have EPA identification 
numbers and without the preparation of a manifest. In the case of 
emergencies involving military munitions, the responding military 
emergency response expert's unit must retain records for three years 
identifying the dates of the response, the responsible persons 
responding, the type and description of material addressed, and its 
disposition.
* * * * *
    3. Section 264.70 is revised to read as follows:

Sec. 264.70  Applicability.

    The regulations in this subpart apply to owners and operators of 
both on-site and off-site facilities, except as Sec. 264.1 provides 
otherwise. Sections 264.71, 264.72, and 264.76 do not apply to owners 
and operators of on-site facilities that do not receive any hazardous 
waste from off-site sources, and to owners and operators of off-site 
facilities with respect to waste military munitions exempted from 
manifest requirements under Sec. 263.l0(d). Section 264.73(b) only 
applies to permittees who treat, store, or dispose of hazardous wastes 
on-site where such wastes were generated.
    4. Part 264 is amended by adding new subpart EE, consisting of 
Secs. 264.1200 through 264.1202, to read as follows:

Subpart EE--Military Hazardous Waste Munitions Storage

Sec. 264.1200  Applicability.

    The requirements of this subpart apply to owners or operators who 
store military wastes and munitions classified as hazardous wastes in 
military magazines, except as Sec. 264.1 provides otherwise. (NOTE: 
Depending on explosive hazards, military hazardous waste munitions may 
also be managed in other types of storage units, including containment 
buildings (40 CFR part 264, subpart DD), tanks (40 CFR part 264, 
subpart J), or containers (40 CFR part 264, subpart I)).

Sec. 264.1201  Design and operating standards.

    (a) Hazardous waste munitions storage units must be designed and 
operated, with containment systems, controls, and monitoring, that:
    (1) Minimize the potential for detonation or other means of release 
of hazardous waste, hazardous constituents, hazardous decomposition 
products, or contaminated run-off, to the soil, ground water, surface 
water, or atmosphere;
    (2) Provide a primary barrier, which may be a container (including 
a shell) or tank, designed to contain the hazardous waste;
    (3) For non-liquid wastes stored outdoors, provide that the waste 
will not be in standing precipitation;
    (4) For liquid wastes, provide a secondary containment system that 
assures that any released liquids or precipitation are promptly 
detected and removed from the waste area; and
    (5) Provide monitoring and inspection procedures that assure the 
controls and containment systems are working as designed and that 
releases that may adversely impact human health or the environment are 
not escaping from the unit.
    (b) Military hazardous waste munitions stored under this subpart 
may be stored in one of the following:
    (1) Earth-covered magazines. Earth-covered magazines must be:
    (i) Constructed of waterproofed, reinforced concrete or structural 
steel arches, with steel doors that are kept closed when not being 
accessed;
    (ii) Designed and constructed:
    (A) to be of sufficient strength and thickness to support the 
weight of any munitions stored and any equipment used in the unit;
    (B) to provide working space for personnel and equipment in the 
unit; and
    (C) to withstand movement activities that occur in the unit.
    (iii) Designed with walls and earthen covers that direct an 
explosion in the unit in a safe direction to prevent propagation of the 
explosion to adjacent units.
    (2) Above-ground magazines. Above-ground magazines must be designed 
to disintegrate rather than blow apart into fragments.
    (3) Outdoor or open storage areas.
    (c) Hazardous waste munition units must be adequately designed and 
spaced to prevent propagation from one storage unit to another in the 
event of detonation. 

[[Page 56494]]

    (d) Hazardous waste munitions must be stored in accordance with a 
Standard Operating Procedure specifying procedures to ensure safety, 
security, and environmental protection. These procedures would 
supersede the security and inspection requirements of 40 CFR 264.14, 
the preparedness and prevention procedures of 40 CFR part 264, subpart 
C, and the contingency plan and emergency procedures requirements of 40 
CFR part 264, subpart D.
    (e) Hazardous waste munitions must be packaged to ensure safety in 
handling and storage.
    (f) Hazardous waste munitions must be inventoried at least 
annually.
    (g) Inspection and monitoring as necessary to ensure stability and 
no migration of contaminants out of the magazine. At waste chemical 
munitions storage units, the preferred method for detection of leakers 
is the use of remote sensing equipment.

Sec. 264.1202  Closure and post-closure care.

    (a) At closure of a military magazine which stored hazardous waste 
under this subpart, the owner or operator must remove or decontaminate 
all waste residues, contaminated containment system components, 
contaminated subsoils, and structures and equipment contaminated with 
waste, and manage them as hazardous waste unless Sec. 261.3(d) of this 
chapter applies. The closure plan, closure activities, cost estimates 
for closure, and financial responsibility for military magazines must 
meet all of the requirements specified in subparts G and H of this 
part, except that the owner or operator may defer closure of the unit 
as long as it remains in service as a munitions magazine.
    (b) If, after removing or decontaminating all residues and making 
all reasonable efforts to effect removal or decontamination of 
contaminated components, subsoils, structures, and equipment as 
required in paragraph (a) of this section, the owner or operator finds 
that not all contaminated subsoils can be practicably removed or 
decontaminated, he or she must close the facility and perform post-
closure care in accordance with the closure and post-closure 
requirements that apply to landfills (Sec. 264.310).

PART 265--INTERIM STATUS STANDARDS FOR OWNERS AND OPERATORS OF 
HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES

    1. The authority citation for Part 265 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6924, 6925, 6935, and 6936, 
unless otherwise noted.

    2. Section 265.1 is amended by adding new paragraphs (c)(11)(i)(D) 
and (c)(11)(iv) to read as follows:

Sec. 265.1  Purpose, scope, and applicability.

* * * * *
    (c) * * *
    (11) * * *
    (i) * * *
    (D) An immediate threat to human health, public safety, property, 
or the environment, from the known or suspected presence of military 
munitions, other explosive material, or an explosive device.
* * * * *
    (iv) In the case of an explosives or munitions emergency response, 
if a Federal, State, or local official acting within the scope of his 
or her official responsibilities, or if an explosives or munitions 
emergency response expert determines that immediate removal of the 
material or waste is necessary to protect human health or the 
environment, that official or expert may authorize the removal of the 
material or waste by transporters who do not have EPA identification 
numbers and without the preparation of a manifest. In the case of 
emergencies involving military munitions, the responding emergency 
response expert's unit must retain records for three years identifying 
the dates of the response, the responsible persons responding, the type 
and description of material addressed, and its disposition.
* * * * *
    3. Section 265.70 is revised to read as follows:

Sec. 265.70  Applicability.

    The regulations in this subpart apply to owners and operators of 
both on-site and off-site facilities, except as Sec. 265.1 provides 
otherwise. Sections 265.71, 265.72, and 265.76 do not apply to owners 
and operators of on-site facilities that do not receive any hazardous 
waste from off-site sources, and to owners and operators of off-site 
facilities with respect to waste military munitions exempted from 
manifest requirements under Sec. 263.10(d).
    4. Part 265 is amended by adding new subpart EE, consisting of 
Secs. 265.1200 through 265.1202, to read as follows:

Subpart EE--Military Hazardous Waste Munitions Storage

Sec. 265.1200  Applicability.

    The requirements of this subpart apply to owners or operators who 
store military wastes and munitions classified as hazardous wastes in 
military magazines, except as Sec. 265.1 provides otherwise. (NOTE: 
Depending on explosive hazards, military hazardous waste munitions may 
also be managed in other types of storage units, including containment 
buildings (40 CFR part 265, subpart DD), tanks (40 CFR part 265, 
subpart J), or containers (40 CFR part 265, subpart I)).

Sec. 265.1201  Design and operating standards.

    (a) Hazardous waste munitions storage units must be designed and 
operated, with containment systems, controls, and monitoring, that:
    (1) Minimize the potential for detonation or other means of release 
of hazardous waste, hazardous constituents, hazardous decomposition 
products, or contaminated run-off, to the soil, ground water, surface 
water, or atmosphere;
    (2) Provide a primary barrier, which may be a container (including 
a shell) or tank, designed to contain the hazardous waste;
    (3) For non-liquid wastes stored outdoors, provide that the waste 
will not be in standing precipitation;
    (4) For liquid wastes, provide a secondary containment system that 
assures that any released liquids or precipitation are promptly 
detected and removed from the waste area; and
    (5) Provide monitoring and inspection procedures that assure the 
controls and containment systems are working as designed and that 
releases that may adversely impact human health or the environment are 
not escaping from the unit.
    (b) Military hazardous waste munitions stored under this subpart 
may be stored in one of the following:
    (1) Earth-covered magazines. Earth-covered magazines must be:
    (i) Constructed of waterproofed, reinforced concrete or structural 
steel arches, with steel doors that are kept closed when not being 
accessed;
    (ii) Designed and constructed:
    (A) to be of sufficient strength and thickness to support the 
weight of any munitions stored and any equipment used in the unit;
    (B) to provide working space for personnel and equipment in the 
unit; and
    (C) to withstand movement activities that occur in the unit.
    (iii) Designed with walls and earthen covers that direct an 
explosion in the unit in a safe direction to prevent propagation of the 
explosion to adjacent units.
    (2) Above-ground magazines. Above-ground magazines must be designed 
to 

[[Page 56495]]
disintegrate rather than blow apart into fragments.
    (3) Outdoor or open storage areas (for munitions that do not pose a 
significant potential for explosion).
    (c) Hazardous waste munition units must be adequately designed and 
spaced to prevent propagation from one storage unit to another in the 
event of detonation.
    (d) Hazardous waste munitions must be stored in accordance with a 
Standard Operating Procedure specifying procedures to ensure safety, 
security, and environmental protection. These procedures would 
supersede the security and inspection requirements of 40 CFR 265.14, 
the preparedness and prevention procedures of 40 CFR part 265 Subpart 
C, and the contingency plan and emergency procedures requirements of 40 
CFR part 265, subpart D.
    (e) Hazardous waste munitions must be packaged to ensure safety in 
handling and storage.
    (f) Hazardous waste munitions must be inventoried at least 
annually.
    (g) Inspection and monitoring as necessary to ensure stability and 
no migration of contaminants out of the magazine. At waste chemical 
munitions storage units, the preferred method for detection of leakers 
is the use of remote sensing equipment.

Sec. 265.1202  Closure and post-closure care.

    (a) At closure of a military magazine which stored hazardous waste 
under this subpart, the owner or operator must remove or decontaminate 
all waste residues, contaminated containment system components, 
contaminated subsoils, and structures and equipment contaminated with 
waste, and manage them as hazardous waste unless Sec. 261.3(d) of this 
chapter applies. The closure plan, closure activities, cost estimates 
for closure, and financial responsibility for military magazines must 
meet all of the requirements specified in subparts G and H of this 
part, except that the owner or operator may defer closure of the unit 
as long as it remains in service as a munitions magazine.
    (b) If, after removing or decontaminating all residues and making 
all reasonable efforts to effect removal or decontamination of 
contaminated components, subsoils, structures, and equipment as 
required in paragraph (a) of this section, the owner or operator finds 
that not all contaminated subsoils can be practicably removed or 
decontaminated, he or she must close the facility and perform post-
closure care in accordance with the closure and post-closure 
requirements that apply to landfills (Sec. 264.310).

PART 270--EPA ADMINISTERED PERMIT PROGRAMS: THE HAZARDOUS WASTE 
PERMIT PROGRAM

    1. The authority citation for Part 270 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6912, 6924, 6925, 6927, 6939, and 
6974.

    2. Section 270.1 is amended by adding new paragraphs (c)(3)(i)(D) 
and (c)(3)(iii) to read as follows:

Sec. 270.1  Purpose and scope of these regulations.

* * * * *
    (c) * * *
    (3) * * *
    (i) * * *
    (D) An immediate threat to human health, public safety, property, 
or the environment from the known or suspected presence of military 
munitions, other explosive material, or an explosive device.
* * * * *
    (iii) In the case of immediate responses involving military 
munitions, the responding military emergency response expert's unit 
must retain records for three years identifying the dates of the 
response, the responsible persons responding, the type and description 
of material addressed, and its disposition.
* * * * *
    3. Section 270.42 is amended by redesignating paragraph (h) as (i) 
and adding a new paragraph (h) to read as follows:

Sec. 270.42  Permit modification at the request of the permittee.

* * * * *
    (h) Military hazardous waste munitions treatment and disposal. (1) 
The permittee is authorized to continue to accept military munitions 
designated as hazardous wastes under Sec. 261.2(g) of this chapter, 
notwithstanding any permit conditions barring the permittee from 
accepting off-site wastes, if:
    (i) The facility was in existence as a hazardous waste facility on 
the date when the waste munition became subject to hazardous waste 
regulatory requirements;
    (ii) On or before the date when the waste munition becomes subject 
to hazardous waste regulatory requirements, the permittee submits a 
Class l modification request to remove or amend the permit provision 
restricting the receipt of off-site waste munitions; and
    (iii) The permittee submits a complete Class 2 modification request 
within 180 days of the date when the waste munition became subject to 
hazardous waste regulatory requirements.
    (2) Within the 180-day period for submission of the Class 2 
modification request, the facility may request the permitting agency to 
extend the 180 days for a specified period. If the permitting agency 
does not respond to the extension request within 30 days, the permittee 
is automatically granted the extension.
[FR Doc. 95-27434 Filed 11-7-95; 8:45 am]
BILLING CODE 6560-50-P

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