issue-1995-11-08•Federal Register proposed rules — 1995-11-08
Federal Register proposed rules — 1995-11-08
issue-1995-11-08Federal Register proposed rules — 1995-11-08Proposed Regulation
Published Federal Register documents, not public-inspection drafts. The GPO XML/text rendition is a research aid; the linked complete official PDF retains the printed layout and all graphics. Graphics are retained in that PDF and are not independently reproduced in this text rendition. Publication does not establish that every provision remains legally in force.
FR Doc. 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]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
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.
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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]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
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.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
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]
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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.
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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]
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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.
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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]
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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.
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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.
-----------------------------------------------------------------------
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.
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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).
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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'').
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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.
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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.
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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.
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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.
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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.
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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.
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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.''
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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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