issue-1996-03-11•Federal Register proposed rules — 1996-03-11
Federal Register proposed rules — 1996-03-11
issue-1996-03-11Federal Register proposed rules — 1996-03-11Proposed Regulation
Published Federal Register documents, not public-inspection drafts. The GPO XML/text rendition is a research aid; the linked complete official PDF retains the printed layout and all graphics. Graphics are retained in that PDF and are not independently reproduced in this text rendition. Publication does not establish that every provision remains legally in force.
FR Doc. 96-5870 Telecommunications Act of 1996
[Federal Register Volume 61, Number 48 (Monday, March 11, 1996)]
[Proposed Rules]
[Pages 9671-9673]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-5870]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 76
[CS Docket No. 96-40; FCC 96-84]
Telecommunications Act of 1996
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: The Commission is issuing this Notice of Proposed Rulemaking
in order to solicit comment on the proper
[[Page 9672]]
implementation of Section 641 of the Communications Act. This NPRM is
necessary to fulfill the statutory requirement in Section 505 of the
Telecommunications Act of 1996 that the Commission determine the hours
of the day when a significant number of children are likely to view
sexually explicit adult programming or other indecent programming on
any channel of the service of a multichannel video programming
distributor primarily dedicated to sexually oriented programming if
such programming is not fully blocked or fully scrambled. This
proceeding will permit the Commission to issue final rules.
DATES: Comments are due on April 26, 1996. Replies are due on May 24,
1996.
FOR FURTHER INFORMATION, CONTACT: Meryl S. Icove, Cable Services
Bureau, (202) 416-0800.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Notice of Proposed
Rulemaking in CS Docket No. 96-40, FCC 96-84, adopted March 4, 1996 and
released March 5, 1996. The complete text of this Notice of Proposed
Rulemaking is available for inspection and copying during normal
business hours in the FCC Reference Center (room 239), 1919 M Street,
NW., Washington, DC, and also may be purchased from the Commission's
copy contractor, International Transcription Services, Inc. (``ITS
Inc.'') at (202) 587-3800, 2100 M Street, NW., Suite 140, Washington,
DC 20017.
Synopsis of Notice of Proposed Rulemaking
1. On February 8, 1996, the Telecommunications Act of 1996 (``1996
Act''), Pub. L. No. 104-104, 110 Stat. 56 (1996), was enacted. Section
505 of the 1996 Act amends the Communications Act by adding a new
Section 641, entitled ``Scrambling of Sexually Explicit Adult Video
Service Programming.'' Section 641(a) requires that multichannel video
programming distributors (``MVPDs'') fully scramble or fully block
sexually explicit adult programming or other indecent programming on
any channel of its service primarily dedicated to sexually-oriented
programming so that a nonsubscriber does not receive such programming.
Section 641(b) provides that, until the MVPD fully scrambles such
programming, it may not provide such programming during the hours of
the day when a significant number of children are likely to view such
programming. Section 641(b) further requires that the Commission
determine those hours. Section 641(c) also provides a definition of
``scramble:'' ``to rearrange the content of the signal of the
programming so that the programming cannot be viewed or heard in an
understandable manner.'' These provisions take effect 30 days after the
date of enactment of the 1996 Act, i.e., March 9, 1996. In an Order
adopted with this NPRM on March 4, 1996, the Commission adopted a rule
incorporating Section 641(a). We also established an interim rule
implementing Section 641(b), providing that the programming described
in subsection (a) may not be provided between the hours of 6 a.m. and
10 p.m. if not fully scrambled or fully blocked. This NPRM requests
comment on whether the interim rule should be adopted as a final rule.
Finally, we request comment on other issues regarding implementation
and enforcement of these rules.
2. We propose to adopt a final rule establishing the hours between
6 a.m. and 10 p.m. as the hours when sexually explicit adult
programming or other programming that is indecent on any channel
primarily dedicated to sexually-oriented programming is prohibited if
not fully scrambled for nonsubscribers. We tentatively conclude there
are no relevant differences between broadcast and nonbroadcast delivery
of programming that justify adoption of a different rule. Commenters on
this issue are asked to provide specific data in support of any
assertions regarding the hours when children are likely to be viewing
this programming.
3. We note that the definition of indecent programming in the video
programming context is well established. The Commission defines
broadcast indecency as ``language or material that, in context, depicts
or describes, in terms patently offensive as measured by contemporary
community standards for the broadcast medium, sexual or excretory
activities or organs.'' Infinity Broadcasting Corporation of
Pennsylvania, 2 FCC Rcd 2705 (1987). The Commission has also defined
indecency with respect to the use of channel capacity on cable systems
for leased access and public, educational and governmental access--
indecent programming is any programming that describes or depicts
sexual or excretory activities or organs in a patently offensive manner
as measured by contemporary community standards for the cable medium.
See 47 CFR 76.701(g), 76.702. We propose to use the same definition for
purposes of this statutory provision. Because we read the term
``sexually explicit adult programming'' to be a subset of indecent
programming, we do not believe that further definition is necessary. As
noted above, we believe the statute is clear regarding the channels to
which Section 641(a) applies, however, to the extent parties disagree,
they may comment on the appropriate definition of ``channel * * *
primarily dedicated to sexually oriented programming.''
4. Finally, we seek comment on any other issues relevant to proper
implementation of Section 641. In particular, with respect to the
requirement to ``fully scramble or otherwise fully block'' sexually
explicit adult programming or other programming that is indecent, are
there differences in technology between MVPDs that would require
different rules?
Initial Regulatory Flexibility Act Analysis
5. Pursuant to Section 603 of the Regulatory Flexibility Act, the
Commission has prepared the following initial regulatory flexibility
analysis (``IRFA'') of the expected impact of these proposed policies
and rules on small entities. Written public comments are requested on
the IRFA. These comments must be filed in accordance with the same
filing deadlines as comments on the rest of the NPRM, but they must
have a separate and distinct heading designating them as responses to
the IRFA. The Secretary shall cause a copy of the NPRM, including the
IRFA, to be sent to the Chief Counsel for Advocacy of the Small
Business Administration in accordance with Section 603(a) of the
Regulatory Flexibility Act, Pub. L. No. 96-354, 94 Stat. 1164, 5 U.S.C.
601 et seq. (1981).
6. The Commission issues this NPRM pursuant to Section 505, Pub. L.
No. 104-104, and seeks public comment on the implementation of that
statutory provision. Objectives. Our goal in this proceeding is to
gather information to implement Congress' directive that multichannel
video programming distributors fully scramble or fully block sexually
explicit adult programming or other programming that is indecent on any
channel primarily dedicated to sexually oriented programming so that
nonsubscribers do not receive it. We also must gather information so we
can determine the hours when significant numbers of children are likely
to view such programming if not fully scrambled or fully blocked. Legal
Basis. Authority for this proposed rulemaking is contained in Sections
4(i) and 641 of the Communications Act of 1934, as amended, 47 U.S.C.
154(i), and in Section 505 of the Telecommunications Act of 1996, Pub.
L. No. 104-104 (1996).
Description, Potential Impact and Number of Small Entities
Affected. The
[[Page 9673]]
rules proposed could affect certain small entities including
multichannel video programming distributors who choose to provide
sexually explicit adult programming or other programming that is
indecent on a channel primarily dedicated to sexually-oriented
programming without fully scrambling or fully blocking such programming
during hours when it is prohibited from doing so by the Commission.
Reporting, Recordkeeping and Other Compliance Requirements. None.
Federal Rules which Overlap, Duplicate or Conflict with these Rules.
None. Any Significant Alternatives Minimizing Impact on Small Entities
and Consistent with Stated Objectives. None.
7. It is ordered that, pursuant to Sections 4(i) and 641 of the
Communications Act of 1934, as amended, 47 U.S.C. 154(i), and Section
505 of the Telecommunications Act of 1996, notice is hereby given of
proposed amendments to Part 76, in accordance with the proposals,
discussions, and statement of issues in this Notice of Proposed
Rulemaking, and that COMMENT IS SOUGHT regarding such proposals,
discussions, and statement of issues.
List of Subjects in 47 CFR Part 76
Cable television.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 96-5870 Filed 3-8-96; 8:45 am]
BILLING CODE 6712-01-P
Complete official Federal Register PDF
FR Doc. 96-5738 Approval and Promulgation of Implementation Plan; Ohio
[Federal Register Volume 61, Number 48 (Monday, March 11, 1996)]
[Proposed Rules]
[Page 9661]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-5738]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[OH89-1-7254b; FRL-5434-8]
Approval and Promulgation of Implementation Plan; Ohio
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) proposes to approve
a revision to the Ohio State Implementation Plan (SIP) for the general
conformity rules. The general conformity SIP revisions enable the State
of Ohio to implement and enforce the Federal general conformity
requirements in the nonattainment and maintenance areas at the State or
local level in accordance with regulations on Determining Conformity of
General Federal Actions to State or Federal Implementation Plans.
DATES: Comments on this proposed action must be received by April 10,
1996.
ADDRESSES: Written comments should be sent to: J. Elmer Bortzer, Chief,
Regulation Development Section, Air Programs Branch (AR-18J), USEPA,
Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604-3590.
Copies of the request and the USEPA's analysis are available for
inspection at the following address: (Please telephone Patricia Morris
at (312) 353-8656 before visiting the Region 5 office.) USEPA, Region
5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago,
Illinois 60604-3590.
SUPPLEMENTARY INFORMATION: For additional information, see the Direct
Final rule which is located in the Rules section of this Federal
Register.
Authority: 42 U.S.C. 7401-7671q.
Dated: February 12, 1996.
David A. Ullrich,
Acting Regional Administrator.
[FR Doc. 96-5738 Filed 3-8-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-5736 Approval and Promulgation of State Implementation Plan; Wisconsin; Clean Fuel Fleet Program
[Federal Register Volume 61, Number 48 (Monday, March 11, 1996)]
[Proposed Rules]
[Pages 9660-9661]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-5736]
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[[Page 9661]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[WI64-01-7148b; FRL-5416-9]
Approval and Promulgation of State Implementation Plan;
Wisconsin; Clean Fuel Fleet Program
AGENCY: United States Environmental Protection Agency (USEPA).
ACTION: Proposed rule.
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SUMMARY: The U.S. Environmental Protection Agency (USEPA) is proposing
to approve a revision to the Wisconsin State Implementation Plan (SIP)
for the purpose of establishing a Clean-Fuel Fleet Program. Wisconsin
submitted the SIP revision request to satisfy a federal mandate, found
in the Clean Air Act, requiring certain states to establish Clean-Fuel
Fleet Programs. This revision establishes and requires the
implementation of a Clean-Fuel Fleet Program in the Milwaukee ozone
nonattainment area.
DATES: Comments on this proposed action must be received by April 10,
1996.
ADDRESSES: Written comments should be sent to: Carlton T. Nash, Chief,
Regulation Development Section, Air Programs Branch (AP-18J), USEPA,
Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604-3590.
SUPPLEMENTARY INFORMATION: For additional information, see the Direct
Final rule which is located in the Rules section of this Federal
Register. Copies of the request and the USEPA's analysis are available
for inspection at the following address: (Please telephone Brad Beeson
at (312) 353-4779 before visiting the Region 5 office.) EPA, Region 5,
Air and Radiation Division, 77 West Jackson Boulevard, Chicago,
Illinois 60604-3590.
Authority: 42 U.S. C. 7401-7671q.
Dated: January 17, 1996.
Valdas V. Adamkus,
Regional Administrator.
[FR Doc. 96-5736 Filed 3-8-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-5734 Approval and Promulgation of Implementation Plans; State of Missouri
[Federal Register Volume 61, Number 48 (Monday, March 11, 1996)]
[Proposed Rules]
[Page 9661]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-5734]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[MO-30-1-7152b; FRL-5424-8]
Approval and Promulgation of Implementation Plans; State of
Missouri
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The EPA proposes to grant conditional approval of the State
Implementation Plan (SIP) revision submitted by the state of Missouri
for the purpose of fulfilling the requirements set forth in the EPA's
General Conformity rule. The SIP was submitted by the state to satisfy
the Federal requirements in 40 CFR 51.852 and 93.151. In the final
rules section of the Federal Register, the EPA is granting conditional
approval the state's SIP revision as a direct final rule without prior
proposal because the Agency views this as a noncontroversial revision
amendment and anticipates no adverse comments. A detailed rationale for
the approval is set forth in the direct final rule. If no adverse
comments are received in response to this proposed rule, no further
activity is contemplated in relation to this rule. If the EPA receives
adverse comments, the direct final rule will be withdrawn and all
public comments received will be addressed in a subsequent final rule
based on this proposed rule. The EPA will not institute a second
comment period on this document. Any parties interested in commenting
on this document should do so at this time.
DATES: Comments on this proposed rule must be received in writing by
April 10, 1996.
ADDRESSES: Comments may be mailed to Lisa V. Haugen, Environmental
Protection Agency, Air Planning and Development Branch, 726 Minnesota
Avenue, Kansas City, Kansas 66101.
FOR FURTHER INFORMATION CONTACT: Lisa V. Haugen at (913) 551-7877.
SUPPLEMENTARY INFORMATION: See the information provided in the direct
final rule which is located in the rules section of the Federal
Register.
Dated: February 6, 1996.
Dennis Grams,
Regional Administrator.
[FR Doc. 96-5734 Filed 3-8-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-5730 Notice, Consent, and Election Requirements Under Sections 411(a)(11) and 417; Correction
[Federal Register Volume 61, Number 48 (Monday, March 11, 1996)]
[Proposed Rules]
[Page 9660]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-5730]
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DEPARTMENT OF THE TREASURY
26 CFR Part 1
[EE-24-93]
RIN 1545-AU05
Notice, Consent, and Election Requirements Under Sections
411(a)(11) and 417; Correction
AGENCY: Internal Revenue Service, Treasury.
ACTION: Correction to notice of proposed rulemaking by cross-reference
to temporary regulations.
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SUMMARY: This document contains a correction to proposed regulations by
cross-reference to temporary regulations which were published in the
Federal Register for Friday, September 22, 1995 (60 FR 49236). The
proposed regulations provide guidance concerning the notice and consent
requirements under section 411(a)(11) and the notice and election
requirements of section 417.
FOR FURTHER INFORMATION CONTACT: Thomas Foley, (202) 622-6050 (not a
toll-free number).
SUPPLEMENTARY INFORMATION:
Background
The notice of proposed rulemaking by cross-reference to temporary
regulations that is the subject of this correction is under sections
411 and 417 of the Internal Revenue Code.
Need for Correction
As published, the notice of proposed rulemaking by cross-reference
to temporary regulations contains an error that is in need of
correction.
Correction of Publication
Accordingly, the publication of the notice of proposed rulemaking
by cross-reference to temporary regulations which is the subject of FR
Doc. 95-23264, is corrected as follows:
On page 49236, in the heading, the ``RIN'' ``1545-AT75'' is
corrected to read ``1545-AU05''.
Cynthia E. Grigsby,
Chief, Regulations Unit, Assistant Chief Counsel (Corporate).
[FR Doc. 96-5730 Filed 3-8-96; 8:45 am]
BILLING CODE 4830-01-U
Complete official Federal Register PDF
FR Doc. 96-5729 Disclosure of Returns and Return Information to Procure Property or Services for Tax Administration Purposes; Correction
[Federal Register Volume 61, Number 48 (Monday, March 11, 1996)]
[Proposed Rules]
[Page 9660]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-5729]
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DEPARTMENT OF THE TREASURY
26 CFR Part 301
[DL-40-95]
RIN 1545-AT48
Disclosure of Returns and Return Information to Procure Property
or Services for Tax Administration Purposes; Correction
AGENCY: Internal Revenue Service, Treasury.
ACTION: Correction to notice of proposed rulemaking.
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SUMMARY: This document contains corrections to the notice of proposed
rulemaking which was published in the Federal Register for Friday,
December 15, 1995 (60 FR 64402). The proposed regulations relate to the
disclosure of returns and return information in connection with the
procurement of property and services for tax administration purposes.
FOR FURTHER INFORMATION CONTACT: Donald Squires, (202) 622-4570 (not a
toll-free number).
SUPPLEMENTARY INFORMATION:
Background
The notice of proposed rulemaking that is the subject of this
correction is under section 6103 of the Internal Revenue Code.
Need for Correction
As published, the notice of proposed rulemaking contains errors
that are in need of clarification.
Correction of Publication
Accordingly, the publication of the notice of proposed rulemaking
which is the subject of FR Doc. 95-30505, is corrected as follows:
1. On page 64402, column three, in the heading, the ``Agency
number'' ``[DL-01-95]'' is corrected to read ``[DL-40-95]''.
2. On page 64402, column three, in the preamble following the
ADDRESSES: caption, lines 2 and 8, the language ``(DL-01-95)'' is
corrected to read ``(DL-40-95)''.
Cynthia E. Grigsby,
Chief, Regulations Unit, Assistant Chief Counsel (Corporate).
[FR Doc. 96-5729 Filed 3-8-96; 8:45 am]
BILLING CODE 4830-01-U
Complete official Federal Register PDF
FR Doc. 96-5727 Cargo PreferenceU.S.-Flag Vessels; Available U.S.-Flag Commercial Vessels
[Federal Register Volume 61, Number 48 (Monday, March 11, 1996)]
[Proposed Rules]
[Pages 9670-9671]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-5727]
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DEPARTMENT OF TRANSPORTATION
Maritime Administration
46 CFR Part 381
[Docket No. R-165]
RIN 2133-AB25
Cargo Preference--U.S.-Flag Vessels; Available U.S.-Flag
Commercial Vessels
AGENCY: Maritime Administration, Transportation.
ACTION: Proposed rule.
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SUMMARY: This amendment to the cargo preference regulations of the
Maritime Administration (MARAD) would provide that during the five year
period beginning with the 1996 Great Lakes shipping season when the St.
Lawrence Seaway is in use, MARAD will consider the legal requirement
for the carriage of bulk agricultural commodity preference cargoes on
privately-owned ``available'' U.S.-flag commercial vessels to have been
satisfied where the cargo is initially loaded at a Great Lakes port on
one or more U.S.-flag or foreign-flag vessels, transferred to a U.S.-
flag commercial vessel at a Canadian transshipment point outside the
St. Lawrence Seaway, and carried on that U.S.-flag vessel to a foreign
destination. This provision would allow U.S. Great Lakes ports to
compete for certain bulk agricultural commodity preference cargoes
under agricultural assistance programs administered by the U.S.
Department of Agriculture (USDA) and the U.S. Agency for International
Development (USAID). MARAD issued substantially identical rules in 1994
and 1995 related to the Great Lakes Shipping season for each of those
years, respectively. This rule would extend the provision for an
additional five years, after which the Agency would assess the merits
of making the rule permanent.
DATES: Comments must be received on or before April 10, 1996.
ADDRESSES: Send original and two copies of comments to the Secretary,
Maritime Administration, Room 7210, Department of Transportation, 400
7th Street S.W., Washington, D.C. 20590. To expedite review of
comments, MARAD requests, but does not require submission of an
additional ten (10) copies. All comments will be made available for
inspection during normal business hours at the above address.
Commenters wishing MARAD to acknowledge receipt of comments should
enclose a self-addressed envelope or postcard.
FOR FURTHER INFORMATION CONTACT: John E. Graykowski, Deputy Maritime
Administrator for Inland Waterways and Great Lakes, Maritime
Administration, Washington, DC, 20590, Telephone (202) 366-1718.
SUPPLEMENTARY INFORMATION: United States law at sections 901(b) and
901b, Merchant Marine Act, 1936, as amended (the ``Act''), 46 App.
U.S.C. 1241(b) and 1241f, requires that at least 75 percent of certain
agricultural product cargoes ``impelled'' by Federal programs
(preference cargoes), and transported by sea, be carried on privately-
owned United States-flag commercial vessels, to the extent that such
vessels ``are available at fair and reasonable rates.'' The Secretary
of Transportation wishes to administer that program so that all ports
and port ranges, including U.S. Great Lakes ports, may participate in
the carriage of preference cargoes under five programs administered by
the United States Department of Agriculture (USDA) and United States
Agency for International Development (USAID), pursuant to Titles I, II
and III of the Agricultural Trade Development and Assistance Act of
1954, as amended, P.L. 480 (7 U.S.C. 1701-1727), the Agricultural Act
of 1949, as amended (7 U.S.C. 2791(c)) and the Food for Progress Act of
1985, as amended (7 U.S.C. 1736).
Prior Rulemaking
On August 8, 1994, MARAD published a final rule on this subject in
the Federal Register (59 FR 40261). That rule stated that it was
intended to allow U.S. Great Lakes ports to participate with ports in
other U.S. port ranges in the carriage of bulk agricultural commodity
preference cargoes. Dramatic changes in shipping conditions have
occurred since 1960, including the disappearance of any all-U.S.-flag
commercial ocean-going bulk cargo service to foreign countries from
U.S. Great Lakes ports. The static configuration of the St. Lawrence
Seaway system and the evolving greater size of commercial vessels
contributed to the disappearance of any all-U.S.-flag service.
No bulk grain preference cargo has moved on U.S.-flag vessels out
of the Great Lakes since 1989, with the exception of one trial shipment
in 1993. Under the Food Security Act of 1985, Public Law 99-198,
codified at 46 App. U.S.C. 1241f(c)(2), a certain minimum amount of
Government-impelled cargo was required to be allocated to Great Lakes
ports during the Great Lakes shipping seasons of 1986, 1987, 1988 and
1989. That ``set-aside'' expired in 1989, and was not renewed by the
Congress. The disappearance of Government-impelled agricultural cargo
flowing from the Great Lakes coincided with the expiration of the Great
Lakes ``set aside.''
At the time of the opening of the 1994 Great Lakes shipping season
on April 5, 1994, the Great Lakes did not have any all-U.S.-flag ocean
freight capability for carriage of bulk preference cargo. In contrast,
the total export nationwide by non-liner vessels of USDA and USAID
agricultural assistance program cargoes subject to cargo preference in
the 1994-1995 cargo preference year (the latest program year for which
figures are available) amounted to 6.2 million metric tons, of which
4.9 million (78 percent) was transported on U.S.-flag vessels.
Extension of Trial Period
MARAD initially issued that rule for the purpose of allowing Great
Lakes ports the opportunity to compete for agricultural commodity
preference cargoes for only the 1994 Great Lakes shipping season
cargoes, and to assess the results. As predicted by numerous
commenters, the timing of the final rule, which was not published until
August 18, 1994, did not allow for a true trial period since it
actually extended for less than one-half of the 1994 Great Lakes
Shipping season. Because of the long
[[Page 9671]]
lead time required for arranging shipments of bulk agriculture
commodity preference cargoes, there apparently was no real opportunity
for U.S.-flag vessel operators to make the necessary arrangements and
bid on preference cargoes. Accordingly, MARAD proposed to extend this
policy to the 1995 Great Lakes shipping season and issued a final rule
that was published in the Federal Register on May 9, 1995 (60 FR
24560).
Great Lakes participation in cargo preference shipments under these
five programs administered by the USDA and USAID could be improved if
foreign-flag feeder vessels were authorized to transport bulk grain
commodities from Great Lakes ports to Canadian transshipment points for
export on oceangoing U.S.-flag bulk carriers to the final destination
port. MARAD issued its 1994 and 1995 final rules to authorize the use
of foreign-flag feeder vessels for the transportation of bulk
agricultural commodities cargoes from the Great Lakes ports to Canadian
transshipment ports outside the St. Lawrence Seaway during the 1994-95
Great Lakes shipping season. Outside the St. Lawrence Seaway, the cargo
would be transferred to a U.S.-flag vessel for delivery to its foreign
destination.
Subsequently, USDA indicated that provisions in Pub. L. 480
regulating the payment of freight by USDA for the Title II and Title
III shipments, as well as in the Food For Progress Act of 1985,
negatively impacted on suppliers that bid on Great Lakes cargoes to be
transshipped to Canadian shipping points. USDA indicated that these
provisions prevent them from paying for the foreign-flag Great Lakes
transit leg, even if the freight is billed separately. The Pub. L. 480
Title I program is not affected by this provision. Due to these
statutory provisions, the Great Lakes region has been, in effect,
prohibited from utilizing the rule and participating in 54 percent, or
7.9 millon metric tons, of the bulk cargo shipped during the past two
years under Titles II and III of Pub. L. 480, the Agricultural Act of
1949 and the Food for Progress Act of 1985 programs.
USDA has proposed an amendment to the 1995 Farm Bill which would
allow USDA to pay the cost of the foreign-flag Great Lakes transit leg
for transshipment in Canadian ports. Consistent with the legislation
proposed by the USDA provision in the 1995 Farm Bill, MARAD recommends
that the rule be extended for an additional five years, after which it
would reassess the merits of making the rule permanent.
Rulemaking Analyses and Notices
Executive Order 12866 (Regulatory Planning and Review)
This rulemaking is not considered to be an economically significant
regulatory action under section 3(f) of Executive Order 12866, or a
significant rule under the Department's Regulatory Policies and
Procedures. Accordingly, it has not been reviewed by the Office of
Management and Budget.
MARAD projects that this rule would allow the annual movement of up
to 300,000 metric tons of agricultural commodities from Great Lakes
ports, with a reduction in the shipping cost to sponsoring Federal
agencies of up to $3 per metric ton ($900,000).
If this rule is finalized, MARAD will evaluate the results over
that trial period before determining whether to issue a rule to make
this provision permanent.
Federalism
The Maritime Administration has analyzed this rulemaking in
accordance with the principles and criteria contained in Executive
Order 12612, and it has been determined that these regulations do not
have sufficient federalism implications to warrant the preparation of a
Federalism Assessment.
Regulatory Flexibility Act
The Maritime Administration certifies that this rulemaking will not
have a significant economic impact on a substantial number of small
entities.
Environmental Assessment
The Maritime Administration has considered the environmental impact
of this rulemaking and has concluded that an environmental impact
statement is not required under the National Environmental Policy Act
of 1969.
Paperwork Reduction Act
This rulemaking contains no reporting requirement that is subject
to OMB approval under 5 CFR Part 1320, pursuant to the Paperwork
Reduction Act of 1980 (44 U.S.C. 3501, et seq.)
List of Subjects in 46 CFR Part 381
Freight, Maritime carriers.
Accordingly, MARAD hereby proposes to amend 46 CFR part 381 as
follows:
PART 381--[AMENDED]
1. The authority citation for Part 381 continues to read as
follows:
Authority: 46 App. U.S.C. 1101, 1114(b), 1122(d) and 1241; 49
CFR 1.66.
2. Section 381.9 would be revised to read as follows:
Sec. 381.9 Available U.S.-flag service.
For purposes of shipping bulk agricultural commodities under
programs administered by sponsoring Federal agencies from U.S. Great
Lakes ports during the 1996-2000 Great Lakes shipping seasons, if
direct U.S.-flag service, at fair and reasonable rates, is not
available at U.S. Great Lakes ports, a joint service involving a
foreign-flag vessel(s) carrying cargo no farther than a Canadian
port(s) or other point(s) on the Gulf of St. Lawrence, with
transshipment via a U.S.-flag privately owned commercial vessel to the
ultimate foreign destination, will be deemed to comply with the
requirement of ``available'' commercial U.S.-flag service under the
Cargo Preference Act of 1954. Shipper agencies considering bids
resulting in the lowest landed cost of transportation based on U.S.-
flag rates and service shall include within the comparison of U.S.-flag
rates and service, for shipments originating in U.S. Great Lakes ports,
through rates (if offered) to a Canadian port or other point on the
Gulf of St. Lawrence and a U.S.-flag leg for the remainder of the
voyage. The ``fair and reasonable'' rate for this mixed service will be
determined by considering the U.S.-flag component under the existing
regulations at 46 CFR Part 382 or 383, as appropriate, and
incorporating the cost for the foreign-flag component into the U.S.-
flag ``fair and reasonable'' rate in the same way as the cost of
foreign-flag vessels used to lighten U.S.-flag vessels in the recipient
country's territorial waters. Alternatively, the supplier of the
commodity may offer the Cargo FOB Canadian transshipment point, and
MARAD will determine fair and reasonable rates accordingly.
Dated: March 6, 1996.
By Order of the Maritime Administrator.
Joel Richard,
Secretary, Maritime Administration.
[FR Doc. 96-5727 Filed 3-8-96; 8:45 am]
BILLING CODE 4910-81-P
Complete official Federal Register PDF
FR Doc. 96-5725 Proposed Establishment of Class E Airspace; Hollister, CA
[Federal Register Volume 61, Number 48 (Monday, March 11, 1996)]
[Proposed Rules]
[Pages 9655-9656]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-5725]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 71
[Airspace Docket No. 95-AWP-13]
Proposed Establishment of Class E Airspace; Hollister, CA
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Supplemental notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: This supplemental notice amends a previous proposal to
establish a Class E airspace area at Hollister, 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 supplemental notice is to provide
additional controlled airspace for Instrument Flight Rules (IFR)
operations at Hollister Municipal Airport, Hollister, CA.
DATES: Comments must be received on or before April 18, 1996.
ADDRESSES: Send comments on the proposal in triplicate to: Federal
Aviation Administration, Attn: Manager, System Management Branch, AWP-
530, Docket No. 95-AWP-13, 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:
William Buck, Airspace Specialist, System Management Branch, AWP-530,
Air Traffic Division, Western-Pacific Region, Federal Aviation
Administration, 15000 Aviation Boulevard, Lawndale, California 90261,
telephone (310) 725-6556.
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
[[Page 9656]]
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-13.'' 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 supplemental 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's
Any person may obtain a copy of this Supplemental Notice of
Proposed Rulemaking (SNPRM) 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 SNPRM. 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) by establishing a Class E
airspace area at Hollister, CA. The FAA published an earlier notice
proposing to establish Class E airspace area at Hollister, CA, on
January 8, 1996 (60 FR 549). Comments received in response to the NPRM
and this SNPRM will be addressed in the final disposition of the rule.
This supplemental notice proposes to amend the Class E airspace area at
Hollister, CA, as proposed in the original notice by providing
additional controlled airspace for IFR operations at Hollister
Municipal Airport, Hollister, 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 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 continues to read as
follows:
Authority: 49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24
FR 9565, 3 CFR, 1959-1963 Comp., p. 389; 14 CFR 11.69.
Sec. 71.1 [Amended]
2. The incorporation by reference in 14 CFR 71.1 of the Federal
Aviation Administration Order 7400.9C, Airspace Designations and
Reporting Points, dated August 17, 1995, and effective September 16,
1995, is amended as follows:
Paragraph 6005 Class E airspace areas extending upward from 700
feet or more above the surface of the earth.
* * * * *
AWP CA E5 Hollister, CA [New]
Hollister Municipal Airport, CA
(Lat. 36 deg.53'36''N, long. 121 deg.24'37''W)
That airspace extending upward from 700 feet above the surface
within a 4.2-mile radius of Hollister Municipal Airport and within 2
miles each side of the 142 deg. bearing from the Hollister Municipal
Airport extending from the 4.2-mile radius to 10 miles southeast of
the Hollister Municipal Airport and within 2 miles each side of the
320 deg. bearing from the Hollister Municipal Airport extending from
the 4.2-mile radius to 5.4 miles northwest of the Hollister
Municipal Airport.
* * * * *
Issued in Los Angeles, California, on February 27, 1996.
James H. Snow,
Acting Manager, Air Traffic Division, Western-Pacific Region.
[FR Doc. 96-5725 Filed 3-8-96; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-5723 Amendment of Class E Airspace; Ely, NV
[Federal Register Volume 61, Number 48 (Monday, March 11, 1996)]
[Proposed Rules]
[Pages 9656-9657]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-5723]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 71
[Airspace Docket No. 96-AWP-5]
Amendment of Class E Airspace; Ely, NV
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: This notice proposes to amend Class E airspace at Ely, NV. The
establishment of a Global Positioning System (GPS) Standard Instrument
Approach Procedure (SIAP) to Runway (RWY) 18 has made this proposal
necessary. The intended effect of this proposal is to provide
additional controlled airspace for Instrument Flight Rules (IFR)
operations at ELY Airport (Yelland Field), Ely, NV.
DATES: Comments must be received on or before April 12, 1996.
ADDRESSES: Send comments on the proposal in triplicate to: Federal
Aviation Administration, Attn: Manager, System Management Branch, AWP-
530, Docket No. 96-AWP-5, 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.
[[Page 9657]]
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. 96-
AWP-5.'' The postcard will be date/time stamped and returned to the
commenter. All communications received on or before the specified
closing date for comment swill 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 Ely, NV. The establishment of a GPS SIAP to Ely Airport-Yelland
Field has made this proposal necessary. The intended effect of this
proposal is to provide additional controlled airspace for IFR
operations at Ely Airport-Yelland Field, Ely, NV. Class E airspace
designations 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
designations 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 continues to read as
follows:
Authority: 49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24
FR 9565, 3 CFR, 1959-1963 Comp., p. 389; 14 CFR 11.69.
Sec. 71.1 [Amended]
2. The incorporation by reference in 14 CFR 71.1 of the Federal
Aviation Administration Order 7400.9C, Airspace Designations and
Reporting Points, dated August 17, 1995, and effective September 16,
1995, is amended as follows:
Paragraph 6005 Class E airspace areas extending upward from 700
feet or more above the surface of the earth.
* * * * *
AWP NV E5 Ely, NV [Revised]
Ely VOR/DME
(Lat. 39 deg.17'53''N, long. 114 deg.50'54''W)
That airspace extending upward from 700 feet above the surface
within a 4.3-mile radius of Ely VOR and within 4.3-miles northeast
and 8.3 miles southwest of the Ely VOR 303 deg. radial, extending
from the Ely VOR to 16.1 miles northwest and within 3 miles each
side of the Ely VOR 014 deg. radial, extending from the Ely VOR to
12.6 miles northeast and within 3 miles each side of the Ely VOR
167 deg. radial, extending from the Ely VOR to 7.7 miles south of
the Ely VOR. That airspace extending upward from 1,200 feet above
the surface within a 19.1-mile radius of Ely VOR and within 6.1
miles northeast and 8.7 miles southwest of the Ely VOR 335 deg.
radial, extending from the 19.1-mile radius area to 33 miles
northwest of the Ely VOR and within 4.3 miles east and 6.5 miles
west of the Ely VOR 014 deg. radial, extending from the 19.1 mile
radius to 21.3 miles north of the Ely VOR, and within 14 miles west
and 12.5 miles east of the Ely VOR 169 deg. radial, extending from
the 19.1-mile radius to 30 miles south of the Ely VOR.
* * * * *
Issued in Los Angeles, California, on February 22, 1996.
James H. Snow,
Acting Manager, Air Traffic Division, Western-Pacific Region.
[FR Doc. 96-5723 Filed 3-8-96; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-5722 Proposed Amendment of Class E Airspace; Jackson, CA
[Federal Register Volume 61, Number 48 (Monday, March 11, 1996)]
[Proposed Rules]
[Pages 9657-9658]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-5722]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 71
[Airspace Docket No. 96-AWP-7]
Proposed Amendment of Class E Airspace; Jackson, CA
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: This notice proposes to amend the Class E airspace area at
Jackson, CA. The development of a Global Positioning System (GPS)
Standard Instrument Approach Procedure (SIAP) to Runway (RWY) 1 has
made this proposal necessary. The intended effect of this proposal is
to provide adequate controlled airspace for Instrument Flight Rules
(IFR) operations at Westover Field Amador County, Jackson, CA.
DATES: Comments must be received on or before April 12, 1996.
ADDRESSES: Send comments on the proposal in triplicate to: Federal
Aviation Administration, Attn: Manager, System Management Branch, AWP-
530, Docket No. 96-AWP-7, 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.
[[Page 9658]]
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:
William Buck, Airspace Specialist, System Management Branch, AWP-530,
Air Traffic Division, Western-Pacific Region, Federal Aviation
Administration, 15000 Aviation Boulevard, Lawndale, California 90261,
telephone (310) 725-6556.
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. 96-
AWP-7.'' The postcard will be date/time stamped and returned to the
commenter. All communications received on or before the specified
closing date for comments will be considered before taking action on
the proposed rule. The proposal contained in this notice may be changed
in light of comments received. All comments submitted will be available
for examination in the 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) by amending the Class E airspace
area at Jackson, CA. The development of GPS SIAP at Westover Field
Amador County has made this proposal necessary. The intended effect of
this proposal is to provide adequate Class E airspace for aircraft
executing the GPS RWY 1 SIAP at Westover Field Amador County, Jackson,
CA. Class E airspace designations for airspace area extending upward
from 700 feet or more above the surface of the earth are published in
Paragraph 6005 of FAA Order 7400.9C dated August 17, 1995, and
effective September 16, 1995, which is incorporated by reference in 14
CFR 71.1. The Class E airspace designation listed in this document
would be published subsequently in this Order.
The FAA has determined that this proposed regulation only involves
an established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
Therefore, this proposed regulation--(1) is not a ``significant
regulatory action'' under Executive Order 12866; (2) is not a
``significant rule'' under DOT Regulatory Policies and Procedures (44
FR 10034; February 26, 1979); and (3) does not warrant preparation of a
Regulatory Evaluation as the anticipated impact is so minimal. Since
this is a routine matter that will only affect air traffic procedures
and air navigation, it is certified that this proposed rule would not
have a significant economic impact on a substantial number of small
entities under the criteria of the Regulatory Flexibility Act.
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference, Navigation (air).
The Proposed Amendment
In consideration of the foregoing, the Federal Aviation
Administration proposes to amend 14 CFR part 71 as follows:
PART 71--[AMENDED]
1. The authority citation for 14 CFR part 71 continues to read as
follows:
Authority: 49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24
FR 9565, 3 CFR, 1959-1963 Comp., p. 389; 14 CFR 11.69.
Sec. 71.1 [Amended]
2. The incorporation by reference in 14 CFR 71.1 of the Federal
Aviation Administration Order 7400.9C, Airspace Designations and
Reporting Points, dated August 17, 1995, and effective September 16,
1995, is amended as follows:
Paragraph 6005 Class E airspace areas extending upward from 700
feet or more above the surface of the earth.
* * * * *
AWP CA E5 Jackson, CA [Revised]
Jackson, Westover Field Amador Field, CA
(Lat. 38 deg.22'36'' N, long. 120 deg.47'38'' W)
That airspace extending upward from 700 feet above the surface
within a 6.3-mile radius of Westover Field Amador County.
* * * * *
Issued in Los Angeles, California, on February 23, 1996.
James H. Snow,
Acting Manager, Air Traffic Division, Western-Pacific Region.
[FR Doc. 96-5722 Filed 3-8-96; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-5721 Amendment of Class E Airspace; Visalia, CA
[Federal Register Volume 61, Number 48 (Monday, March 11, 1996)]
[Proposed Rules]
[Pages 9658-9659]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-5721]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 71
[Airspace Docket No. 96-AWP-6]
Amendment of Class E Airspace; Visalia, CA
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: This notice proposes to amend the Class E airspace area at
Visalia, CA due to the abandonment of Ianni Strip, CA. The intended
effect of this proposal is to remove the reference to Ianni Strip from
the Class E airspace description.
DATES: Comments must be received on or before April 12, 1996.
ADDRESSES: Send comments on the proposal in triplicate to: Federal
Aviation Administration, Attn: Manager, System Management Branch, AWP-
530, Docket No. 95-AWP-6, 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:
[[Page 9659]]
William Buck, Airspace Specialist, System Management Branch, AWP-530,
Air Traffic Division, Western-Pacific Region, Federal Aviation
Administration, 15000 Aviation Boulevard, Lawndale, California, 90261,
telephone (310) 725-6556.
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. 96-
AWP-6.'' 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 revise the Class E airspace
area at Visalia Municipal Airport, CA due to the abandonment of Ianni
Strip, CA. The intended effect of this proposal is to remove the
reference to Ianni Strip from the Class E airspace description. 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 proposal 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
Accordingly, pursuant to the authority delegated to me, the Federal
Aviation Administration proposes to amend part 71 of the Federal
Aviation Regulations (14 CFR part 71) as follows:
PART 71--[AMENDED]
1. The authority citation for 14 CFR part 71 continues to read as
follows:
Authority: 49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24
FR 9565, 3 CFR, 1959-1963 Comp., p. 389; 14 CFR 11.69.
Sec. 71.1 [Amended]
2. The incorporation by reference in 14 CFR 71.1 of the Federal
Aviation Administration Order 7400.9C, Airspace Designations and
Reporting Points, dated August 17, 1995, and effective September 16,
1995, is amended as follows:
Paragraph 6005 Class E airspace areas extending upward from 700
feet or more above the surface of the earth.
* * * * *
Visalia Municipal Airport, CA
(Lat. 36 deg.19'07''N, long. 119 deg.23'34''W)
Visalia VOR/DME
(Lat. 36 deg.22'02''N, long. 119 deg.28'56''W)
Swanson Ranch NR1 Airport, CA
(Lat. 36 deg.24'00''N, long. 119 deg.37'03''W)
That airspace extending upward from 700 feet above the surface
within a 5-mile radius of the Visalia Municipal Airport and within
1.8 miles each side of the Visalia VOR 302 deg. radial, extending
from the 5-mile radius to 7 miles northwest of the VOR and within 4
miles each side of the Visalia VOR 150 deg. radial, extending from
1.7 miles southeast to 17.4 miles southeast of the Visalia VOR and
within 2.3 miles each side of the 245 deg. bearing from the Visalia
Municipal Airport, extending from the 5-mile radius to 8 miles
southwest of the airport; excluding the airspace within 1-mile
radius of Swanson Ranch NR1 Airport.
* * * * *
Issued in Los Angeles, California, on February 22, 1996.
Leonard A. Mobley,
Acting Manager, Air Traffic Division, Western-Pacific Region.
[FR Doc. 96-5721 Filed 3-8-96; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-5720 Clean Air Act Proposed Interim Approval of Title V Operating Permit Programs; State of Tennessee and Memphis-Shelby County, Tennessee
[Federal Register Volume 61, Number 48 (Monday, March 11, 1996)]
[Proposed Rules]
[Pages 9661-9670]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-5720]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[TN-96-01; TN-MEMP-96-01; FRL-5439-2]
Clean Air Act Proposed Interim Approval of Title V Operating
Permit Programs; State of Tennessee and Memphis-Shelby County,
Tennessee
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed interim approval.
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SUMMARY: EPA proposes interim approval of the operating permit programs
submitted by the Tennessee Department of Environment and Conservation
and by the Memphis-Shelby County Health Department for the purpose of
complying with Federal requirements which mandate that authorized
permitting authorities 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
April 10, 1996.
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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
State of Tennessee and Memphis-Shelby County submittals, and other
supporting information used in developing this proposed interim
approval, are available for inspection during normal business hours at
the following location: U.S. Environmental Protection Agency, Region 4,
345 Courtland Street, NE, Atlanta, GA 30365. Interested persons wanting
to examine these documents, contained in the EPA dockets numbered TN-
96-01 and TN-MEMP-96-01, should make an appointment at least 24 hours
before the visiting day.
FOR FURTHER INFORMATION CONTACT: Kim Gates, 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. 4146.
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 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 authorized permitting authorities develop, and submit to
EPA, programs for issuing operating permits to all major stationary
sources and to certain other sources.
The Act requires permitting authorities to develop and submit these
programs to EPA by November 15, 1993, and EPA to approve or disapprove
each program within one year after receiving the submittal. If the
program 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. EPA
received the State of Tennessee's title V operating permit program
submittal on November 10, 1994. The State supplemented the original
program submittal with additional materials on December 5, 1994, August
8, 1995, January 17, 1996, January 30, 1996, and February 13, 1996.
Because the August 8, 1995 supplement materially changed the State's
title V program submittal, EPA extended the one-year review period. EPA
received Memphis-Shelby County's title V program submittal on June 26,
1995. Supplemental materials dated August 22, 1995, August 23, 1995,
August 24, 1995, January 29, 1996, February 7, 1996, and February 14,
1996 were submitted by the County to complete the title V program
submittal.
EPA reviews title V operating permit programs pursuant to section
502 of the Act and 40 CFR part 70, which together outline the criteria
for approval and 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 the interim
program approval period, it must establish and implement a Federal
operating permit program for that state or local agency.
B. Federal Oversight and Sanctions
If EPA grants interim approval to the State of Tennessee and
Memphis-Shelby County programs, the interim approvals will extend for
two years following the effective date of the final interim approvals,
and cannot be renewed. During the interim approval period, the State
and the County will not be subject to sanctions and EPA will not be
obligated to promulgate, administer, and enforce a Federal operating
permit program for the State or the 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 the State of
Tennessee or Memphis-Shelby County fail 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 State or the County then fail 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
State or the County has corrected the deficiency by submitting a
complete corrective program. Moreover, if the Administrator finds a
lack of good faith on the part of the State of Tennessee or Memphis-
Shelby County, both sanctions under section 179(b) will apply after the
expiration of the 18-month period until the Administrator determines
that the State or the County has come into compliance. In any case, if,
six months after application of the first sanction, the State or the
County still has not submitted a corrective program that EPA determines
to be complete, a second sanction will be required.
If, following final interim approval, EPA disapproves the State of
Tennessee's or Memphis-Shelby County's complete corrective program, EPA
will be required to apply one of the section 179(b) sanctions on the
date 18 months after the effective date of the disapproval, unless
prior to that date the State or the County has submitted a revised
program and EPA has determined that it corrected the deficiencies that
prompted the disapproval. Moreover, if the Administrator finds a lack
of good faith on the part of the State or the County, both sanctions
under section 179(b) will apply after the expiration of the 18-month
period until the Administrator determines that the State or the County
has come into compliance. In all cases, if six months after EPA applies
the first sanction, the State of Tennessee or Memphis-Shelby County has
not submitted a revised program that EPA determines to have corrected
the deficiencies that prompted disapproval, a second sanction will be
required.
In addition, discretionary sanctions may be applied where warranted
any time after the end of an interim approval period if a state or
local agency has not timely submitted a complete corrective program or
EPA has disapproved a submitted corrective program. Moreover, if EPA
has not granted full approval to a state or local program by the
expiration of an interim approval and that expiration occurs after
November 15, 1995, EPA must promulgate, administer, and enforce a
Federal operating permit program for that state or local agency upon
interim approval expiration.
II. Proposed Action and Implications
A. Analysis of State and County Submittals
EPA has concluded that the operating permit programs submitted by
the State of Tennessee and Memphis-Shelby County substantially meet the
requirements of title V and part 70, and proposes to interimly approve
the programs. For detailed information on the analyses of the State and
County submittals, please refer to the Technical
[[Page 9663]]
Support Documents (TSDs) contained in the dockets at the address noted
above. The TSDs describe the manner in which the programs satisfy the
operating permit program requirements of part 70.
1. Support Materials
Pursuant to section 502(d) of the Act, each permitting authority
must develop and submit to the Administrator an operating permit
program under state or local law or under an interstate compact that
meets the requirements of title V of the Act. On November 10, 1994, EPA
received the title V operating permit program submitted by the
Tennessee Department of Environment and Conservation. The State
requested, under the signature of the Tennessee Governor's designee,
approval of its operating permit program with full authority to
administer the program in ninety-one of the State's ninety-five
counties. Four of the State's counties (Shelby, Davidson, Hamilton, and
Knox) are regulated by local air pollution control agencies operating
under certificates of exemption issued pursuant to Tennessee Code
Annotated (T.C.A.) Section 68-201-115. The State's jurisdiction also
does not extend to sources of air pollution over which an Indian Tribe
has jurisdiction. The State of Tennessee supplemented its initial title
V program submittal on December 5, 1994, August 8, 1995, January 17,
1996, January 30, 1996, and February 13, 1996.
On June 26, 1995, EPA received the Memphis-Shelby County title V
operating permit program submittal. The State requested, under the
signature of the Tennessee Governor's designee, approval of the
County's program on behalf of the Memphis-Shelby County Health
Department. The Memphis-Shelby County Health Department has authority
to administer the operating permit program in all areas of Shelby
County, Tennessee, including the incorporated municipalities of
Arlington, Bartlett, Collierville, Germantown, Lakeland, Memphis, and
Millington. The County's jurisdiction does not extend to sources of air
pollution over which an Indian Tribe has jurisdiction. The County
supplemented its initial program on August 22, 1995, August 23, 1995,
August 24, 1995, January 29, 1996, February 7, 1996, and February 14,
1996.
The State of Tennessee and Memphis-Shelby County submittals
address, in the Workload Analyses contained therein, the requirement of
40 CFR 70.4(b)(1) by describing how the State and County intend to
carry out their responsibilities under part 70. EPA has deemed the
program descriptions to be sufficient for meeting the requirement of 40
CFR 70.4(b)(1).
Pursuant to 40 CFR 70.4(b)(3), each permitting authority is
required to submit a legal opinion from the Attorney General (or the
attorney for the air pollution control agency that has independent
legal counsel) demonstrating adequate authority to carry out all
aspects of the title V operating permit program. The State of Tennessee
submitted an Attorney General's Opinion demonstrating adequate legal
authority as required by Federal law and regulation. The Memphis-Shelby
County submittal contains an Opinion Letter by the County Attorney.
This letter, with the supplements dated August 24, 1995 and January 29,
1995, adequately demonstrate the required legal authority.
The program submittals also contain supporting documentation, such
as evidence of the procedurally correct adoption of the permitting
rules, permit application forms, and copies of the enforcement
agreements with EPA. The State's submittal was determined by EPA to be
administratively complete on January 24, 1995. The County's submittal
was determined to be administratively complete on September 5, 1995.
2. Program Implementation
The State of Tennessee developed Paragraph 1200-3-9-.02(11),
entitled ``Major Stationary Source Operating Permits'', of the
Tennessee Air Pollution Control Regulations to implement the
substantive requirements of part 70. The State also developed Rule
1200-3-10-.04 entitled ``Enhanced and Periodic Monitoring for Title V
Sources'' and Chapter 1200-3-30 entitled ``Control of Acidic
Precipitation'' to implement other title V requirements. These rules,
and several other rules and statutes providing for administrative
actions and the assessment of fees, were submitted by the State with
sufficient evidence of procedurally correct adoption as required by 40
CFR 70.4(b)(2).
The County's operating permit program is implemented and enforced
through the Shelby County Air Pollution Control Code, which was amended
on April 24, 1995 to incorporate by reference in entirety the State's
Paragraph 1200-3-9-.02(11) entitled ``Major Stationary Source Operating
Permits'', Rule 1200-3-10-.04 entitled ``Enhanced and Periodic
Monitoring for Title V Sources'', and Chapter 1200-3-30 entitled
``Control of Acidic Precipitation''.1 These regulations, and
several other rules and statutes providing for administrative actions
and the assessment of fees, were submitted by Memphis-Shelby County
with sufficient evidence of procedurally correct adoption as required
by 40 CFR 70.4(b)(2).
\1\ The current Memphis-Shelby County codifications make
reference to the entire Tennessee Chapter 1200-3-9, which was
adopted and incorporated by reference into Section 16-77 of the
City's code and into Section 3-5 of the County's code. In addition,
Tennessee Chapter 1200-3-10 was adopted into Sections 16-85 and 3-7,
and Tennessee Chapter 1200-3-30 was adopted into Sections 16-91.2
and 3-36. Since the City and the County have not yet codified
subsections, all references in this notice will be to applicable
parts of Tennessee regulations.
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3. Regulations
a. Applicability. The State of Tennessee and Memphis-Shelby County
title V program submittals, in Subparagraphs 1200-3-9-.02(11) (b) and
(c), substantially meet the requirements of 40 CFR 70.2 and 70.3 with
regards to applicability.
The State of Tennessee and Memphis-Shelby County title V programs
provide for the treatment of research and development (R&D) facilities
as sources that are separate from other stationary sources that are
located on contiguous and adjacent properties and that are under common
control. Neither program, however, requires a ``support facility test''
(see 60 FR 45556, August 31, 1995) before R&D is treated as a separate
source when it is co-located with an industrial activity. EPA does not
consider the lack of the support facility test as an issue for program
approval because the definition of ``Research and Development
Facility'' found in Subparagraph 1200-3-9-.02(11)(b)24. requires that
the facility not be ``engaged in the manufacture of products for
commercial sale in commerce, except in a de minimis manner''.
Therefore, it is EPA's understanding that if co-located R&D facilities
contribute to industrial activities in material rather than de minimis
capacities, the State and the County will consider them as support
facilities and thus not separable. This interpretation is consistent
with the support facility test, which treats co-located and commonly
owned sources as one source (with aggregated emissions) if the output
of one source is more than 50 percent devoted to the support of the
other source.
The State of Tennessee and Memphis-Shelby County programs, in
Subparagraph 1200-3-9-.02(11)(b)14.(iv), provide that ``* * * all
activities claimed by an applicant to be
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research and development at the contiguous or adjacent property shall
have their emissions aggregated as a single source for the purposes of
determining whether or not the research and development activities
constitute a major source.'' It is EPA's understanding that the term
``activities'' in this provision is intended to address the R&D
activities at the R&D facility, as referenced in the preceding sentence
of Subparagraph 1200-3-9-.02(11)(b)14.(iv) and defined in Subparagraph
1200-3-9-.02(11)(b)24., and is not intended to apply to any activities
occurring within a stationary source that is not considered to be a R&D
facility. Given this understanding, EPA does not consider this
provision to be a title V program approval issue for the State or the
County.
Neither the State or the County addressed 40 CFR 70.3(b)(3), which
allows exempted sources to apply for a permit, in their program
submittals. Justification of this omission of a part 70 provision is
requested from the State and the County as a condition of full program
approval.
b. Permit Applications. The State of Tennessee and Memphis-Shelby
County title V programs, in Subparagraph 1200-3-9-.02(11)(d) and in the
permit application forms, substantially meet the requirements of 40 CFR
70.5 for complete permit application forms. However, the regulatory
provisions in both programs do not specifically require the permit
applications to contain the information described in 40 CFR 70.5(c),
including the compliance certification requirements of 40 CFR
70.5(c)(9).
The State's and County's application forms, which were submitted
for approval as part of both title V programs, do require all the
information referred to in 40 CFR 70.5(c), including a certification of
compliance status with respect to all applicable requirements. EPA is
concerned in particular that the compliance certification be a binding,
regulatory requirement upon the source. The State asserts that, because
its regulations require sources to provide the information specified in
the application form, and because the application form submitted for
approval as part of the State's title V program requires a compliance
certification, the compliance certification is a regulatory requirement
that is binding upon the source. EPA finds this explanation plausible,
but seeks confirmation in the form of a legal opinion from the State.
Therefore, as a condition of full approval for both programs, EPA
is requesting that the State and the County clarify in supplemental
legal opinions that their permitting regulations require a source
submitting an application for a title V permit to certify its
compliance status with regards to all applicable requirements.
Alternatively, the State and the County could revise their regulations
to directly incorporate this requirement.
In addition, because neither the State nor the County have
regulatory provisions for permit applications to contain the
information described in 40 CFR 70.5(c), EPA is reminding the State and
the County that any revisions to their forms must be submitted as title
V program revisions for EPA review and approval pursuant to 40 CFR
70.4(i).
c. Insignificant Activities. Pursuant to part 70, a permitting
authority must request and EPA may approve as part of that program, a
list of insignificant activities and emission levels which need not be
included in the permit applications. Although part 70 does not define
appropriate emission levels for insignificant activities, 40 CFR
70.4(b)(2) requires permitting authorities to include in their title V
program submittals any criteria used to determine insignificant
activities or emission levels. Based on the information provided in the
submittal, EPA determines whether the insignificant emission levels for
the particular program under review are approvable.
For other title V program submittals, EPA has accepted ``generic''
(that is, not keyed to a specific type of activity) emission thresholds
of no more than five tons per year for regulated air pollutants and
1000 pounds per year for hazardous air pollutants (HAPs) as
insignificant. EPA believes that these levels are sufficiently below
applicability thresholds for many applicable requirements to ensure, in
combination with appropriate ``gatekeepers'', that units potentially
subject to applicable requirements are included in permit applications.
In addition to insignificant activity lists or threshold levels with
appropriate emissions limitations, a State's program must provide, as
required in 40 CFR 70.5(c), that an application may not omit
information needed to determine the applicability of and to impose
applicable requirements, and to collect fees. If a state or local
agency's permitting regulations include this ``gatekeeper'' language,
and the insignificant activities list and generic threshold levels are
reasonable (that is, if they are not on their face likely to interfere
with the determination and imposition of applicable requirements), then
EPA will approve the insignificant activities provisions.
The initial State of Tennessee and Memphis-Shelby County title V
program submittals contained the version of Rule 1200-3-9-.04 entitled
``Exemptions'' that became state-effective on November 21, 1993. Rule
1200-3-9-.04 identifies over 50 different insignificant activities and
emission units that are exempt from permitting requirements. Because
Rule 1200-3-9-.04 purports to exempt the listed activities from
``permitting'', rather than from description in the permit application,
it is broader than the exemption contemplated by 40 CFR 70.5(c).
Activities and emission units deemed ``insignificant'' for purposes
of title V permitting are not exemptions from the obligation to
consider all emissions from the source in determining whether the
source is major, nor are they exemptions from the requirement to comply
with the permit content provisions of 40 CFR 70.6 for all applicable
requirements. Rather, provisions for insignificant activities and
emission units allow sources subject to title V to avoid description of
EPA-approved insignificant activities in the application, or to include
only limited information in the application (as in the case of
activities deemed insignificant based on size or production rate).
Therefore, the exemption from ``permitting'' requirements contained in
Rule 1200-3-9-.04 must be removed as a condition of full approval for
both programs.
Moreover, neither the State nor the County submitted information
regarding the estimated levels of emissions from the activities and
units listed in Rule 1200-3-9-.04, nor has a demonstration been made
that these activities are not likely to be subject to applicable
requirements or to have emissions that affect major source status. EPA
has examined the list of excluded activities and believes that
exclusion of these items would unduly hamper a reviewer's ability to
verify whether the source has correctly identified all applicable
requirements in its application.
Therefore, as a condition of full approval for both programs, the
State and the County must provide a demonstration that adequately
quantifies the potential emissions (based on maximum capacity or on
specified size/operational limitations) from each of the activities and
emission units listed in Paragraphs 1200-3-9-.04 (1) and (4) sufficient
to allow EPA to determine that exclusion of the activities and units
from permit applications will not interfere with the determination and
imposition of applicable requirements. In the
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alternative, the State and the County could specifically limit the
emissions from each listed activity and emissions unit to the
recommended 5 tpy for regulated air pollutants and 1000 pounds per year
for HAPs. In addition, Rule 1200-3-9-.04 must be revised to include
``gatekeeper'' language consistent with that in 40 CFR 70.5(c), as
discussed above, and to remove any language implying that insignificant
activities may be excluded from major source applicability
determinations.
On August 8, 1995, the State of Tennessee supplemented Rule 1200-3-
9-.04 in its title V program with Paragraph 1200-3-9-.04(5) entitled
``Major Source Operating Permits Insignificant Emission Units'', which
became state-effective on August 26, 1995. Memphis-Shelby County has
not yet formally supplemented its title V program with Paragraph 1200-
3-9-.04(5), but the County is in the process of amending its code to
include this paragraph. The County has informed EPA that it will
supplement its title V program with Paragraph 1200-3-9-.04(5) when the
amended code is local-effective.
Paragraph 1200-3-9-.04(5) contains two lists of insignificant
emission units and activities. The list in Subparagraph 1200-3-9-
.04(5)(f) includes more than 120 emission units and activities that are
categorically exempt from permitting requirements and allowed to be
omitted from the permit application. The list in Subparagraph 1200-3-9-
.04(5)(g) contains more than 23 emission units and activities that are
defined as insignificant based on size or production rate. The units
and activities in the second list are required to be included in the
permit application.
Based on EPA's review of Paragraph 1200-3-9-.04(5), a number of the
activities and emission units contained in the two lists either
directly or potentially conflict with applicable requirements as
defined in part 70, or are so vaguely or broadly articulated that EPA
cannot determine whether a conflict or potential conflict exists.
Obvious conflicts that were noted by EPA are discussed in the
aforementioned TSDs. However, EPA could not adequately evaluate the two
lists because neither the State or the County submitted information
quantifying the potential emissions from the listed activities and
units, or the criteria that were used to determine the insignificant
activities and emission units. And, because the rule purports to
exclude activities and emission units listed in Subparagraph 1200-3-9-
.04(5)(f) from permitting requirements, EPA has the same concerns as
discussed above with regards to the initially submitted Rule 1200-3-9-
.04, namely that the rule would authorize excluding insignificant
activities from major source applicability determinations or from other
requirements of part 70 for units that are listed as insignificant but
that are in fact subject to applicable requirements.
Therefore, as conditions of full approval for both programs, the
State and the County must complete the following:
(1) Provide a demonstration that adequately quantifies the
potential emissions (based on maximum capacity or on specified size/
operational limitations) from each of the activities and emission units
listed in Subparagraphs 1200-3-9-.04(5) (f) and (g) sufficient to allow
EPA to determine that exclusion of the activities and units from permit
applications will not interfere with the determination and imposition
of applicable requirements. In the alternative, the State and County
could specifically limit the emissions from each listed activity and
emissions unit to the recommended 5 tpy for regulated air pollutants
and 1000 pounds per year for HAPs.
(2) Address the conflicts with applicable requirements that are
discussed in the TSDs.
(3) Remove the exemption from permitting requirements contained in
Subparagraph 1200-3-9-.04(5)(f) to ensure that the insignificant
activities provisions are not broader than that allowed under 40 CFR
70.5(c), and include ``gatekeeper'' language consistent with that in 40
CFR 70.5(c).
In addition to the exemption from permitting in Subparagraph 1200-
3-9-.04(5)(f), the provisions of Subparagraph 1200-3-9-.04(5)(c)3.
exempt sources subject to generally applicable SIP requirements from
the monitoring, recordkeeping, reporting, and certification
requirements of 40 CFR 70.6 (a)(3) and (c). However, part 70 does not
exempt insignificant activities and emission units subject to
applicable requirements from the permit content requirements of 40 CFR
70.6. That is to say, although insignificant activities may be omitted
from description in the permit application, nothing in part 70 allows
the permitting authority to issue permits that exempt the source from
compliance certification or (as appropriate) monitoring, recordkeeping,
and reporting required under 40 CFR 70.6 for all emissions units
subject to applicable requirements. Part 70 does, however, allow
permitting authorities the flexibility to tailor the amount and quality
of information required in the permit application, and the rigor of
compliance requirements contained in the permit, to the type of
emission unit and applicable requirement in question.
EPA has discussed this issue previously in the interim approval
notices on the State of Washington's title V program (see 60 FR 50166
(September 28, 1995) and 60 FR 62992 (December 8, 1995)). This issue is
also addressed in the July 10, 1995 guidance memorandum entitled
``White Paper for Streamlined Development of Part 70 Permit
Applications'' from Lydia Wegman, Deputy Director of EPA's Office of
Air Quality Planning and Standards, to the EPA Regional Air Directors.
EPA is committed to issuing additional guidance to aid state and local
permitting authorities in drafting permits which comply with the permit
content requirements of 40 CFR 70.6 for insignificant activities, and
intends to issue such guidance in the very near future.
Therefore, as a condition of full approval for both programs,
Subparagraph 1200-3-9-.04(5)(c)3. must be revised to eliminate the
exemption from the monitoring, recordkeeping, reporting, and
certification requirements of 40 CFR 70.6 (a)(3) and (c) for sources
subject to generally applicable SIP requirements.
In addition, Subparagraph 1200-3-9-.04(5)(h) exempts increases in
regulated air pollutant emissions from permit amendment and
modification procedures. Because this provision conflicts with the
requirements of 40 CFR 70.7, it must be revised to be consistent with
the part 70 criteria for administrative permit amendments and permit
modifications as a condition of full approval for both programs.
d. Permit Content. The State of Tennessee and Memphis-Shelby County
title V programs, in Subparagraphs 1200-3-9-.02(11) (a) and (e),
substantially meet the requirements of 40 CFR 70.4 and 70.6 for permit
content, including operational flexibility and off-permit changes.
However, Subparagraph 1200-3-9-.02(11)(b) entitled ``Definitions''
contains the following restriction:
``All references in this paragraph to the Federal Act or to
federal regulations or requirements shall be to (i) that Act and
those regulations and requirements as in effect on December 15,
1993, and (ii) any other federal regulations or requirements to the
extent that they are adopted and are effective as Rules of the State
of Tennessee.
This restriction applies to all Federal requirements referenced in
Paragraph 1200-3-9-.02(11), including the definition of ``Applicable
requirement'' in Subparagraph 1200-3-9-.02(11)(b). The State's and
County's definition of
[[Page 9666]]
``Applicable requirement'' is, therefore, not equivalent to the part 70
definition because it restricts the domain of applicable requirements
to those in effect before a certain date. As a result, neither program
ensures that issued permits will address all applicable requirements in
accordance with 40 CFR 70.6(a). Subparagraph 1200-3-9-.02(11)(b) must
be revised for consistency with part 70 as a condition of full approval
for both programs.
The State and County program submittals, in Subparagraph 1200-3-9-
.02(11)(e)4., provide for the issuance of general permits. However,
this provision allows a source to operate without an appropriate title
V permit and not be subject to enforcement action. Subparagraph 1200-3-
9-.02(11)(e)4. initially indicates that a source shall be subject to
enforcement action if it operates under a general permit but is later
found not to qualify for a general permit. However, the next sentence
states that if the source is required to have an individual permit, the
permit shield will apply until the individual permit becomes effective,
which relieves the source from liability. Because this provision
conflicts with 40 CFR 70.6(d)(1), it must be changed as a condition of
full approval of the State and County programs.
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.
The State of Tennessee and Memphis-Shelby County have not defined
``prompt'' in their title V programs with respect to the reporting of
deviations. Instead, Subparagraph 1200-3-9-.02(11)(e)1.(iii)(III)II.
references the provisions of Rule 1200-3-20-.03 to define ``prompt
reporting''. Rule 1200-3-20-.03 specifies that in the event of a
malfunction, a source shall notify the State and the County by
telephone within 24 hours of the malfunction. The notification must
contain a statement giving all pertinent facts, including the estimated
duration of the malfunction. Chapter 1200-3-20, which contains Rule
1200-3-20-.03, was included in the State's title V program submittal,
but not in the County's submittal. The County clarified, in a letter
dated February 7, 1996, that the prompt reporting provision of Rule
1200-3-20-.03 is effective in all of the County's jurisdictions.
Subparagraph 1200-3-9-.02(11)(e)1.(iii)(III)II. also references
Chapter 1200-3-20 to define deviations from permit conditions, such as
upset, malfunction, or emergency conditions. However, Paragraph 1200-3-
20-.06(5) identifies a number of different exceedances that will not be
considered by the State as violations. This provision conflicts with
part 70, which requires that any emissions not permitted at a source be
in violation of permit terms and conditions. Specifically, 40 CFR
70.6(g) classifies excess emissions due to emergency situations as a
violation of an existing permit, and allows the State to provide an
affirmative defense in certain circumstances.
If a regulation such as Chapter 1200-3-20 is approved into the SIP,
it becomes a part of an applicable requirement and therefore may
function with respect to that requirement or requirements of which it
is a part. This would be true even after the applicable requirement is
incorporated into the permit. However, the version of Chapter 1200-3-20
contained in the State's title V program submittal is not approved into
the Tennessee SIP. More importantly, from the standpoint of part 70,
Chapter 1200-3-20 is on its face limited to SIP requirements. It would,
therefore, affect the definition of violations for any applicable
requirement incorporated into the permit, including those that the
State has no authority to change, such as Federal standards. To remedy
this inconsistency with part 70, and as a condition of full program
approval, the State must revise Chapter 1200-3-20 to clarify that it
applies only with respect to requirements in the SIP. Furthermore, the
revised rule must be submitted to EPA for approval into the Tennessee
SIP.
The State of Tennessee and Memphis-Shelby County have the authority
to issue variances from the requirements imposed by State and County
law. The State has discretion, pursuant to T.C.A. Section 68-201-118,
to grant relief from compliance with State statutes and rules. The
County has discretion, pursuant to Section 3-10 of the Shelby County
Code, to grant relief from compliance with County statutes and rules.
EPA regards these provisions as wholly external to the programs
submitted for approval under part 70, and consequently proposes to take
no action on these provisions of State and County law.
EPA has no authority to approve provisions of state and local law,
such as the variance provisions referred to above, 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 title V operating permit, except where such
relief is granted through the procedures allowed by part 70. A title V
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 title V 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 interpretation 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.''
The State of Tennessee and Memphis-Shelby County title V program
submittals contain provisions for the issuance of Federally enforceable
state and local minor source operating permits to limit an air
pollution source's potential to emit. Limiting a source's potential to
emit through Federally enforceable minor source operating permits can
affect the applicability of Federal regulations to a source, including
the regulations governing title V operating permits, New Source Review
(NSR) preconstruction permits, Prevention of Significant Deterioration
(PSD) preconstruction permits for criteria pollutants, and Federal air
toxics requirements mandated under section 112 of the CAA.
EPA promulgated the criteria for Federal enforceability of minor
source
[[Page 9667]]
operating permits in the Federal Register on June 28, 1989 (see 54 FR
22274). One of the criteria is EPA's approval of the minor source
operating permit program into the State Implementation Plan (SIP). Both
the State of Tennessee and Memphis-Shelby County have submitted the
provisions for issuing Federal enforceable minor source operating
permits as SIP revisions. Therefore, EPA is not taking action in this
notice on the ``opt out'' provisions contained in Paragraph 1200-3-9-
.02(11)(1) as part of either the State or the County title V program.
Both program submittals contain Paragraph 1200-3-9-.02(4) entitled
``Permits for Non-Complying Sources'', which is an approved SIP rule
that does not address any part 70 requirements. Moreover, the version
of the rule included in the submittals contains revisions that have not
yet been submitted for incorporation in either the State of Tennessee's
or Memphis-Shelby County's SIP. EPA has provided comments to the State
on the revised version of the rule, but the comments have not yet been
addressed by the State. EPA is, therefore, not taking action on
Paragraph 1200-3-9-.02(4) as part of either the State or the County
title V program.
e. Permit Processing and Review. The State of Tennessee and
Memphis-Shelby County title V programs, in Subparagraph 1200-3-9-
.02(11)(f) and (g), substantially meet the permit processing and review
requirements of 40 CFR 70.7 (including minor permit modifications and
public participation) and 70.8. However, the State's and County's
permit reopenings provisions for HAP sources are not consistent with
part 70 requirements.
According to Subparagraph 1200-3-31-.04(1)(a), the State and the
County will call applications for permit revisions when EPA promulgates
new maximum achievable control technology (MACT) standards. Sources
will have 360 days to submit applications, and the permitting authority
shall issue the permit revision within 18 months of the date the
application is deemed complete. This provision conflicts with 40 CFR
70.7(f)(1)(i), which requires completion of permit reopenings not later
than 18 months after promulgation of a new applicable requirement in
cases of permits with remaining terms of three or more years. As a
result, Subparagraph 1200-3-31-.04(1)(a) must be revised for
consistency with part 70 requirements as a condition of full approval
for both programs.
f. Enforcement Authority. The State of Tennessee and Memphis-Shelby
County title V programs, in T.C.A. Sections 68-201-101 et seq., address
the requirements of 40 CFR 70.11 with respect to enforcement authority.
4. 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''.
Both the State of Tennessee and Memphis-Shelby County have elected
to assess title V operating permit fees below the Federal presumptive
minimum fee amount, and both program submittals contained Workload
Analyses satisfying the 40 CFR 70.9(b)(5) requirement for detailed fee
demonstrations. The fee demonstrations showed that the fees collected
will adequately cover the anticipated costs of the State and the County
operating permit programs for the years 1995 through 1999.
The specified activities that constitute the State's program are
consistent with 40 CFR 70.9(b)(1), but the County's fee provisions
allow use of the operating permit fees for any purpose rather than
solely for the funding of title V program activities in accordance with
40 CFR 70.9(a). Moreover, the County's program does not specify that
the fees used to cover the direct and indirect costs of the operating
permit program will be collected only from part 70 sources, as required
by 40 CFR 70.9(a). Memphis-Shelby County, therefore, must revise its
fee provisions to be consistent with the part 70 requirements as a
condition of full program approval.
5. Provisions Implementing Requirements of Other Titles of the Act
a. Authority for Section 112 Implementation. In the title V program
submittals, the State of Tennessee and Memphis-Shelby County
demonstrate adequate legal authority to implement and enforce all
section 112 requirements through title V permits. This legal authority
is contained in T.C.A. Sections 68-201-101 et seq., and in
Subparagraphs 1200-3-9-.02(11)(b)5. and 1200-3-9-.02(11)(c)(iii) of the
Tennessee Air Pollution Control Regulations. EPA has determined that
this legal authority is sufficient to allow the State and the County to
issue permits that assure compliance with all section 112 requirements.
EPA is interpreting the above legal authority to mean that the
State of Tennessee and Memphis-Shelby County are 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
aforementioned TSDs.
Both program submittals contain Chapter 1200-3-32 entitled
``Prevention of Accidental Releases'', which was promulgated by the
State and adopted by the County to implement the provisions of section
112(r) of the Act. However, EPA has not yet promulgated a Federal rule
to implement the provisions of section 112(r), so the State and County
rules may not be equivalent to the final Federal rule. Therefore, EPA
is not taking action in this notice on Chapter 1200-3-32 as part of
either the State or the County title V program.
b. Implementation of Section 112(g) During Transition Period EPA
issued an interpretive notice on February 14, 1995 (60 FR 8333), which
outlines the Agency'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 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 permitting authorities
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. A detailed discussion of the rationale for the revised
interpretation is included in the February 14, 1995 notice.
Unless and until EPA provides for an additional postponement of the
section 112(g) effective date, the State of Tennessee and Memphis-
Shelby County must have Federally enforceable mechanisms for
implementing section 112(g) during the period between promulgation of
the Federal section 112(g) rule and adoption of implementing State and
County regulations. Both program submittals contain Chapter 1200-3-31
entitled ``Case by Case Determinations of Hazardous Air Pollutant
Control Requirements'', which will serve as an adequate implementation
vehicle during the transition period. Chapter 1200-3-31 became state-
effective on September 18, 1994, and the County adopted and
[[Page 9668]]
incorporated it by reference on April 24, 1995.
However, Chapter 1200-3-31 contains several discrepancies with
respect to the provisions of section 112(g) of the Act. As a condition
of full program approval, the State and the County must correct the
following discrepancies in order to use this chapter to implement
section 112(g) during the transition period between promulgation of the
Federal section 112(g) rule and the adoption of equivalent State and
County regulations:
(1) The definition of ``modification'' in Paragraph 1200-3-31-
.02(10) conflicts with the section 112(g) definition regarding offsets.
The State/County definition indicates that increased emissions of one
HAP may be offset by an equal or greater decrease of another HAP that
is deemed by the permitting authority to be equal to or more hazardous.
However, according to section 112(g)(1)(A), the offset must be by a HAP
which is deemed to be more hazardous, and the determination must be
based on guidance issued by the Administrator under section
112(g)(1)(B).
(2) According to Subparagraph 1200-3-31-.05(1), the State and the
County shall only make case-by-case determinations for new sources in a
source category scheduled for action under sections 112(e)(1) and (3).
However, section 112(g) applies to all major sources of HAPs,
regardless of whether or not they have been included in a scheduled
source category.
c. Program for Delegation of Section 112 Standards as Promulgated.
The requirements for title V program approval, specified in 40 CFR
70.4(b), encompass section 112(l)(5) requirements for approval of an
operating permit program for delegation of section 112 standards
promulgated by EPA as they apply to title V sources. Section 112(l)(5)
requires that operating permit programs contain adequate authorities,
adequate resources for implementation, and expeditious compliance
schedules, which are also requirements under part 70. Therefore, EPA
also proposes to approve, under section 112(l)(5) and 40 CFR 63.91, the
State of Tennessee and Memphis-Shelby County programs for receiving
delegation of section 112 standards and programs that are unchanged
from the Federal rules as promulgated. In addition, EPA proposes to
delegate to the State and the County all existing standards and
programs under 40 CFR parts 61 and 63 for part 70 sources and non-part
70 sources.2
\2\ 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.
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The State of Tennessee has informed EPA that it intends to accept
the delegation of section 112 standards under part 61 on a case-by-case
basis and the delegation of section 112 standards under part 63 on an
automatic basis. The details of the State's use of these delegation
mechanisms are set forth in letters dated November 4, 1994, January 30,
1996, and February 13, 1996.
Memphis-Shelby County has informed EPA that it too intends to
accept delegation of section 112 standards under part 61 on a case-by-
case basis and the delegation of section 112 standards under part 63 on
an automatic basis. The details of the County's use of these delegation
mechanisms are set forth in letters dated June 14, 1995, February 7,
1996, and February 14, 1996.
d. Title IV Acid Rain Program Requirements. The State of Tennessee
promulgated Chapter 1200-3-30 to implement the Phase II acid rain
permitting requirements of 40 CFR part 72. This chapter became state-
effective on September 13, 1994, and has been determined by EPA to be
acceptable for the purposes of administering an acid rain program.
Memphis-Shelby County adopted and incorporated the State's Chapter
1200-3-30 by reference on April 24, 1995. The County's acid rain
program has also been determined by EPA to be acceptable for the
purposes of administering an acid rain program.
B. Proposed Actions
EPA proposes interim approval of the title V operating permit
program submitted by the Tennessee Department of Environment and
Conservation on November 10, 1994, and as supplemented on December 5,
1994, August 8, 1995, January 17, 1996, January 30, 1996, and February
13, 1996. EPA also proposes interim approval of the title V program
submitted by the Memphis-Shelby County Health Department on June 26,
1995, and as supplemented on August 22, 1995, August 23, 1995, August
24, 1995, January 29, 1996, February 7, 1996, and February 14, 1996. If
this interim approval is finalized, the changes identified below must
be made for full approval of the State and County programs.
1. Opt-in Provision for Exempted Sources
Neither the State or the County program addressed 40 CFR
70.3(b)(3), which allows exempted sources to apply for a permit.
Justification of the omission of this part 70 provision is requested
from the State and the County.
2. Certification of Compliance With Applicable Requirements
Neither the State or the County program contains regulatory
provisions that require sources to certify compliance with all
applicable requirements. EPA is, therefore, requesting the State and
the County to clarify in supplemental legal opinions that their
permitting regulations require a source submitting an application for a
title V permit to certify its compliance status with regards to all
applicable requirements. In the alternative, the State and the County
could revise their regulations to directly incorporate this
requirement.
3. Insignificant Activities
As discussed above in section II.A.3.c., the State and the County
must complete the following:
a. Remove the exemptions from permitting requirements contained in
Paragraphs 1200-3-9-.04(1) and (4), and in Subparagraph 1200-3-9-
.04(5)(f), and include ``gatekeeper'' language consistent with that in
40 CFR 70.5(c).
b. Revise Subparagraph 1200-3-9-.04(5)(c)3. to eliminate the
exemption from the monitoring, recordkeeping, reporting, and
certification requirements of 40 CFR 70.6(a)(3) and (c) for sources
subject to generally applicable SIP requirements.
c. Provide a demonstration that adequately quantifies the potential
emissions (based on maximum capacity or on specified size/operational
limitations) from each of the activities and emission units listed in
Paragraphs 1200-3-9-.04(1) and (4), and Subparagraphs 1200-3-9-
.04(5)(f) and (g), sufficient to allow EPA to determine that exclusion
of the activities and units from permit applications will not interfere
with the determination and imposition of applicable requirements. In
the alternative, the State and the County could specifically limit the
emissions from each listed activity and
[[Page 9669]]
emissions unit to the recommended 5 tpy for regulated air pollutants
and 1000 pounds per year for HAPs.
d. Address EPA's concerns, as discussed in the TSDs, about
potential conflicts of certain activities and emission units listed in
Paragraph 1200-3-9-.04(5) with applicable requirements.
e. Revise Subparagraph 1200-3-9-.04(5)(h) to be consistent with the
criteria in 40 CFR 70.7 for administrative permit amendments and permit
modifications.
4. Applicable Federal Requirements
Subparagraph 1200-3-9-.02(11)(b) in the State and County programs
restricts the domain of Federal requirements referenced in Paragraph
1200-3-9-.02(11) to those in effect on December 15, 1993. As a result,
neither program ensures that issued permits will address all applicable
requirements in accordance with 40 CFR 70.6(a). Subparagraph 1200-3-9-
.02(11)(b) must therefore be revised for consistency with part 70.
5. General Permits
Subparagraph 1200-3-9-.02(11)(e)4. in both programs provides for
the issuance of general permits. However, this provision allows a
source to operate without an appropriate title V permit and not be
subject to enforcement action. This provision must be revised for
consistency with the requirements of 40 CFR 70.6(d)(1).
6. Excess Emissions Due to Malfunction, Startup, and Shutdown
The State must revise Chapter 1200-3-20 to make clear that it
applies only with respect to the requirements in the Tennessee SIP, and
the revised rule must be submitted to EPA for approval in the SIP.
7. Permit Reopenings
Subparagraph 1200-3-31-.04(1)(a) must be revised in both programs
for consistency with the permit reopening requirements in 40 CFR
70.7(f)(1)(i), which requires completion of permit reopenings not later
than 18 months after promulgation of a new applicable requirement in
cases of permits with remaining permit terms of three or more years.
8. Use of Title V Fees
Memphis-Shelby County's fee provisions allow for use of operating
permit fees for any purpose rather than solely for the funding of title
V program activities, as required by 40 CFR 70.9(a). Moreover, the
County's program does not specify that the fees used to cover the
direct and indirect costs of the operating permit program will be
collected only from part 70 sources, as required by 40 CFR 70.9(a).
Memphis-Shelby County, therefore, must revise its fee provisions to be
consistent with the part 70 requirements.
9. Implementation of Section 112(g) During Transition Period
Both the State and the County title V program submittals contain
Chapter 1200-3-31 entitled ``Case by Case Determinations of Hazardous
Air Pollutant Control Requirements''. As discussed above in section
II.A.4.b., the discrepancies between Chapter 1200-3-31 and Federal
requirements must be addressed for EPA to approve this mechanism of
implementing section 112(g) during the transition period between
Federal 112(g) rule promulgation and adoption of appropriate State and
County rules.
In addition, as discussed above in section II.A.4.c., EPA proposes
approval under section 112(l)(5) and 40 CFR 63.91 to the State of
Tennessee and Memphis-Shelby County programs for receiving delegation
of section 112 standards and programs that are unchanged from Federal
rules as promulgated. EPA also proposes to delegate existing standards
and programs under 40 CFR parts 61 and 63 for both part 70 sources and
non-part 70 sources.
This interim approval, which may not be renewed, extends for a
period of up to two years. During the interim approval period, the
State of Tennessee and Memphis-Shelby County are protected from
sanctions for failure to have programs, and EPA is not obligated to
promulgate Federal operating permit programs in the State or the
County. Permits issued under a program with interim approval are fully
effective with respect to part 70, and the one-year time period for
submittal of permit applications by subject sources begins upon the
effective date of interim approval, as does the three-year time period
for processing the initial permit applications.
The scope of the State of Tennessee and Memphis-Shelby County title
V programs that EPA proposes to interimly approve in this notice
applies to all part 70 sources (as defined in the approved program)
within the ninety-one counties under the State's jurisdiction and in
Shelby County, except any sources of air pollution over which an Indian
Tribe has jurisdiction. See, e.g., 59 FR 55813, 55815-18 (November 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 (August 25, 1994); 58 FR
54364 (October 21, 1993).
III. Administrative Requirements
A. Request for Public Comments
EPA requests comments on all aspects of this proposed interim
approval. Copies of the State of Tennessee and Memphis-Shelby County
title V program submittals, and other information relied upon for the
proposed interim approval, are contained in the dockets numbered TN-96-
01 and TN-MEMP-96-01, which are maintained at the EPA Region 4 office.
These dockets are organized and complete files of all the information
submitted to, or otherwise considered by, EPA in the development of
this notice. 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 April 10, 1996.
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
[[Page 9670]]
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 interim 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, Environmental protection, Intergovernmental
relations, Operating permits, and Reporting and recordkeeping
requirements.
Authority: 42 U.S.C. 7401-7671q.
Dated: February 26, 1996.
Phyllis P. Harris,
Acting Regional Administrator.
[FR Doc. 96-5720 Filed 3-8-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-5715 Processed Fruits and Vegetables, Processed Products Thereof, and Certain Other Processed Food Products Regulations Governing Inspection and Certification
[Federal Register Volume 61, Number 48 (Monday, March 11, 1996)]
[Proposed Rules]
[Pages 9654-9655]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-5715]
========================================================================
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. 61, No. 48 / Monday, March 11, 1996 /
Proposed Rules
[[Page 9654]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 52
[FV-96-326]
Processed Fruits and Vegetables, Processed Products Thereof, and
Certain Other Processed Food Products Regulations Governing Inspection
and Certification
AGENCY : Agricultural Marketing Service, USDA.
ACTION : Proposed rule.
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SUMMARY: This document would revise the Regulations Governing
Inspection and Certification of Processed Fruits and Vegetables and
Certain Other Products \1\ by increasing the lot inspection and less
than year round fees charged for the inspection of processed fruits and
vegetables and certain other products. These revisions are necessary in
order to recover, as nearly as practicable, the costs of performing
inspection services under the Agricultural Marketing Act of 1946.
\1\ May include the following: Honey; molasses, except for
stockfeed; nuts and nut products, except oil; sugar (cane, beet, and
maple); sirups (blended), sirups, except from grain; tea, cocoa,
coffee, spices, condiments.
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DATES: Comments must be received on or before April 10, 1996.
ADDRESSES: Interested persons are invited to submit written comments
concerning this proposal. Comments must be sent in duplicate to the
Office of the Branch Chief, Processed Products Branch, Fruit and
Vegetable Division, Agricultural Marketing Service, U.S. Department of
Agriculture, P.O. Box 96456, Room 0709 South Building, Washington, D.C.
20090-6456. Comments should note the date and page number of this issue
of the Federal Register and will be made available for public
inspection in the office of the Branch Chief during regular business
hours.
FOR FURTHER INFORMATION CONTACT: Mr. James R. Rodeheaver, Branch Chief,
Processed Products Branch, Fruit and Vegetable Division, Agricultural
Marketing Service, U.S. Department of Agriculture, P.O. Box 96456, Room
0709 South Building, Washington, D.C. 20090-6456, Telephone (202) 720-
4693.
SUPPLEMENTARY INFORMATION: This proposed rule has been determined to be
not significant for purposes of Executive Order 12866, and therefore
has not been reviewed by the Office of Management and Budget.
This proposed rule has been reviewed under Executive Order 12778,
Civil Justice Reform. This action is not intended to have retroactive
effect. This rule would not preempt any State or local laws,
regulations, or policies, unless they present an irreconcilable
conflict with this rule. There are no administrative procedures which
must be exhausted prior to any judicial challenge to the provisions of
this rule.
The Administrator, Agricultural Marketing Service (AMS), has
certified that this action will not have a significant economic impact
on a substantial number of small entities, as defined in the Regulatory
Flexibility Act, P.L. 96-354 (5 U.S.C. 601).
The proposed rule reflects certain fee increases needed to recover
the costs of services rendered in accordance with the Agricultural
Marketing Act (AMA) of 1946. The inspection, grading and certification
program for processed fruits and vegetables and related products is
voluntary.
The AMA authorizes voluntary official inspection, grading, and
certification on a user-fee basis, of processed food products including
processed fruits, vegetables, and processed products made from them.
The AMA provides that reasonable fees be collected from the user of the
program services to cover as nearly as practicable the costs of
services rendered. This proposal would amend the schedule for fees and
charges for lot inspection and less than year round inspection services
rendered to the processed fruit and vegetable industry to reflect the
costs currently associated with the program.
AMS regularly reviews these programs to determine if fees are
adequate. Employee salary and benefits are major program costs that
account for approximately 85 percent of the total operating budget. A
general and locality salary increase for Federal employees, ranging
from 3.09 to 6.25 percent depending on locality, effective January
1995, has materially affected program costs. Another general and
locality salary increase, ranging from 2.39 to 2.87 percent depending
upon locality (amounting to approximately $625,000), was effective
January 1996; further standardization program costs, previously funded
by appropriated funds, must be paid for by user fees.
While a concerted effort to cut costs resulted in overhead savings
of $623,926 in FY95 over FY94, the last fee increase in August 1994 did
not result in collection of enough revenue to cover all these increases
and still maintain an adequate reserve balance (four months of costs)
called for by Agency policy and prudent financial management. Currently
the Processed Products Branch (PPB) trust fund reserve balance for all
programs is approximately $1.480 mil. under the desirable level of
$11.031. Further action is necessary to meet rising costs and maintain
adequate reserve balances. This action will assist in moving the PPB
trust fund toward a more adequate level and will result in an estimated
$368,000 in additional revenues. Projected FY96 revenues for the lot
inspection and less than year round inspection programs are $8.291 mil.
with costs projected at $8.194 and a reserve of $2.682.
Based on the Agency's analysis of increased costs since 1994, AMS
proposes to increase the fees relating to such services as shown in the
following table. The table compares current fees and charges with
proposed fees and charges for processed fruit and vegetable inspection
as found in 7 CFR 52.42-52.51. For inspection services charged under
section 52.42, overtime and holiday work would continue to be charged
as provided in that section. For inspection services charged on a
contract basis under section 52.51 overtime work would also continue to
be charged as provided in that section. Unless otherwise provided for
by regulation or written agreement between the applicant and the
Administrator, the charges in the schedule of fees as found in section
52.42 are:
------------------------------------------------------------------------
Current Proposed
------------------------------------------------------------------------
$39.50/hr................................. $41.00/hr.
------------------------------------------------------------------------
[[Page 9655]]
Charges for travel and other expenses as found in section 52.50:
------------------------------------------------------------------------
Current Proposed
------------------------------------------------------------------------
$39.50/hr................................. $41.00/hr.
------------------------------------------------------------------------
Charges for year-round in-plant inspection services on a contract
basis as found in section 52.51 (c):
(2) For personnel assigned on less than a year-round basis:
------------------------------------------------------------------------
Current Proposed
------------------------------------------------------------------------
Each inspector:
$39.50/hr................................. $42.00/hr.
In-plant sampler:
$22.00/hr................................. $22.00/hr.
------------------------------------------------------------------------
Charges for less than year-round in-plant inspection services (four
or more consecutive 40 hour weeks) on a contract basis as found in
section 52.51 (d):
------------------------------------------------------------------------
Current Proposed
------------------------------------------------------------------------
(1) Each inspector:
$39.50/hr................................. $42.00/hr.
(2) In-plant sampler:
$22.00/hr................................. $22.00/hr.
------------------------------------------------------------------------
List of Subjects in 7 CFR Part 52
Food grades and standards, Food labeling, Frozen foods, Fruit
juices, Fruits, Reporting and recordkeeping requirements, Vegetables.
For the reasons set forth in the preamble, 7 CFR Part 52 is
proposed to be amended as follows:
PART 52--REGULATIONS GOVERNING INSPECTION AND CERTIFICATION OF
PROCESSED FRUITS AND VEGETABLES, PROCESSED PRODUCTS THEREOF, AND
CERTAIN OTHER PROCESSED FOOD PRODUCTS \1\
\1\ May include the following: Honey; molasses, except for
stockfeed; nuts and nut products, except oil; sugar (cane, beet, and
maple); sirups (blended), sirups, except from grain; tea, cocoa,
coffee, spices, condiments.
---------------------------------------------------------------------------
1. The authority citation for 7 CFR Part 52 continues to read as
follows:
Authority: 7 U.S.C. 1621-1627.
Sec. 52.42 [Amended]
2. In Sec. 52.42, the figure ``$39.50'' is removed and the figure
``$41.00'' is added in its place.
Sec. 52.50 [Amended]
3. In Sec. 52.50, the figure ``$39.50'' is removed and the figure
``$41.00'' is added in its place.
Sec. 52.51 [Amended]
4. In Sec. 52.51, paragraph (c)(2) is amended by removing the
figure ``$39.50'' and adding in its place ``$42.00'' and paragraph
(d)(1) is amended by removing the figure ``$39.50'' and adding the
figure ``$42.00'' in its place.
Dated: February 29, 1996.
David N. Lewis,
Acting Administrator.
[FR Doc. 96-5715 Filed 3-8-96; 8:45 am]
BILLING CODE 3410-02-P
Complete official Federal Register PDF
FR Doc. 96-5707 FSIS Agenda for Change: Regulatory Review; Reopening of Comment Period
[Federal Register Volume 61, Number 48 (Monday, March 11, 1996)]
[Proposed Rules]
[Page 9655]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-5707]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Food Safety and Inspection Service
9 CFR Parts 301, 304, 305, 306, 307, 318, 325, and 381
[Docket No. 95-008E]
FSIS Agenda for Change: Regulatory Review; Reopening of Comment
Period
AGENCY: Food Safety and Inspection Service, USDA.
ACTION: Reopening of comment period.
-----------------------------------------------------------------------
SUMMARY: The Food Safety and Inspection Service (FSIS) is reopening the
comment period for the advance notice of proposed rulemaking, ``FSIS
Agenda for Change: Regulatory Review'' (60 FR 67469), published in the
Federal Register on December 29, 1995, in response to a request for
additional time to submit comments. The comment period will reopen for
60 days.
DATES: Comments must be received on or before May 10, 1996.
ADDRESSES: Send an original and two copies of written comments to: FSIS
Docket Clerk, DOCKET #95-008A, Room 4352, South Agriculture Building,
Food Safety and Inspection Service, U.S. Department of Agriculture,
Washington, DC 20250-3700.
FOR FURTHER INFORMATION CONTACT: Dr. Paula Cohen, Director, Regulations
Development, at (202) 720-7164.
Done at Washington, DC on March 5, 1996.
Michael R. Taylor,
Acting Under Secretary for Food Safety.
[FR Doc. 96-5707 Filed 3-8-96; 8:45 am]
BILLING CODE 3410-DM-P
Complete official Federal Register PDF
FR Doc. 96-5674 Notice, Consent, and Election Requirements Under Sections 411(a)(11) and 417; Hearing
[Federal Register Volume 61, Number 48 (Monday, March 11, 1996)]
[Proposed Rules]
[Pages 9659-9660]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-5674]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Part 1
[EE-24-93]
RIN 1545-AU05
Notice, Consent, and Election Requirements Under Sections
411(a)(11) and 417; Hearing
AGENCY: Internal Revenue Service, Treasury.
ACTION: Notice of public hearing on proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: This document provides notice of a public hearing on proposed
Income Tax Regulations that provide guidance concerning the notice and
consent requirements under section 411(a)(11) and the notice and
election requirements of section 417.
DATES: The public hearing will be held Wednesday, April 24, 1996,
beginning at 10:00 a.m. Requests to speak and outlines of oral comments
must be received by Wednesday, April 3, 1996.
ADDRESSES: The public hearing will be held in the Commissioner's
Conference Room, third floor, Room 3313, Internal
[[Page 9660]]
Revenue Building, 1111 Constitution Avenue NW., Washington, DC.
Requests to speak and outlines of oral comments should be mailed to the
Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Attn:
CC:DOM:CORP:R [EE-24-93], room 5228, Washington, DC 20044.
FOR FURTHER INFORMATION CONTACT: Christina Vasquez of the Regulations
Unit, Assistant Chief Counsel (Corporate), (202) 622-6803 (not a toll-
free number).
SUPPLEMENTARY INFORMATION:
The subject of the public hearing is proposed amendments to the
Income Tax Regulations under sections 411 and 417 of the Internal
Revenue Code of 1986. The proposed regulations appeared in the Federal
Register for Friday, September 22, 1995 (60 FR 49236).
The rules of Sec. 601.601(a)(3) of the ``Statement of Procedural
Rules'' (26 CFR part 601) shall apply with respect to the public
hearing. Persons who have submitted written comments within the time
prescribed in the notice of proposed rulemaking and who also desire to
present oral comments at the hearing on the proposed regulations should
submit not later than Wednesday, April 3, 1996, an outline of the oral
comments/testimony to be presented at the hearing and the time they
wish to devote to each subject.
Each speaker (or group of speakers representing a single entity)
will be limited to 10 minutes for an oral presentation exclusive of the
time consumed by the questions from the panel for the government and
answer thereto.
Because of controlled access restrictions, attenders cannot be
admitted beyond the lobby of the Internal Revenue Building until 9:45
a.m.
An agenda showing the scheduling of the speakers will be made after
outlines are received from the persons testifying. Copies of the agenda
will be available free of charge at the hearing.
Cynthia E. Grigsby,
Chief, Regulations Unit, Assistant Chief Counsel (Corporate).
[FR Doc. 96-5674 Filed 3-8-96; 8:45 am]
BILLING CODE 4830-01-P
Complete official Federal Register PDF
FR Doc. 96-5607 Phase-One Recommendations of Task Force on Disclosure Simplification
[Federal Register Volume 61, Number 48 (Monday, March 11, 1996)]
[Proposed Rules]
[Pages 9848-9857]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-5607]
[[Page 9847]]
_______________________________________________________________________
Part IV
Securities and Exchange Commission
_______________________________________________________________________
17 CFR Part 210, et al.
Phase-One Recommendations of Task Force on Disclosure Simplification;
Proposed Rule
Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 /
Proposed Rules
[[Page 9848]]
SECURITIES AND EXCHANGE COMMISSION
17 CFR Parts 210, 228, 229, 230, 232, 239, 240, and 249
[Release Nos. 33-7271 and 34-36922; S7-6-96]
RIN 3235-AG75
Phase-One Recommendations of Task Force on Disclosure
Simplification
AGENCY: Securities and Exchange Commission.
ACTION: Proposed rules.
-----------------------------------------------------------------------
SUMMARY: The Commission has thus far considered certain of the
recommendations contained in the Task Force on Disclosure
Simplification's Report (``Task Force Report''), the publication of
which the Commission is authorizing today. The Commission now proposes
to eliminate a number of rules and forms that may no longer be
necessary or appropriate for the protection of investors, and to
propose other minor or technical rule changes or corrections. Other
proposals designed to improve the disclosure process, both for
investors and those subject to the Commission's disclosure
requirements, may be forthcoming in future releases following the
Commission's further consideration of the remaining Task Force
recommendations. Accordingly, by issuing this release, the Commission
does not intend to express any view on the merits of any of the Task
Force's recommendations not addressed in this release.
DATES: Comments should be submitted on or before April 10, 1996.
ADDRESSES: All comments concerning the rule proposals should be
submitted in triplicate to Jonathan G. Katz, Secretary, U.S. Securities
and Exchange Commission, Mail Stop 6-9, 450 Fifth Street NW.,
Washington, D.C. 20549. Comments also may be submitted electronically
at the following E-mail address: [email protected]. All comment
letters should refer to File Number S7-6-96; this file number should be
included on the subject line if E-mail is used. Comment letters will be
available for inspection and copying in the public reference room at
the same address. Electronically submitted comment letters will be
posted on the Commission's Internet web site (http://www.sec.gov).
FOR FURTHER INFORMATION CONTACT: James R. Budge, Office of Disclosure
Policy, Division of Corporation Finance, at (202) 942-2910, Douglas G.
Tanner, Office of Chief Accountant, Division of Corporation Finance at
(202) 942-2960 or M. Kathleen Haller, Division of Corporation Finance,
at (202) 942-1977.
SUPPLEMENTARY INFORMATION: In order to begin implementing certain of
the recommendations of the Task Force on Disclosure Simplification that
it has so far considered, the Commission today is proposing the
elimination of Rules 3-16,1 4-05,2 4-06,3 and 4-10 (b)
through (h) 4 of Regulation S-X,5 Industry Guide 1,6
Rule 148 7 under the Securities Act of 1933 (``Securities
Act''),8 Regulation B 9 (including Forms 1-G and 3-G and
Schedules A, B, C, and D thereunder 10), Rules 445,11
446,12 447 13 and 494 14 of Regulation C under the
Securities Act,15 Regulation F,16 (including Form 1-F
17), Securities Act Rules 702(T) 18 and 703(T),19 Form
701,20 Rule 13a-17 21 under the Securities Exchange Act of
1934 (``Exchange Act''),22 Exchange Act Rules 15d-17,23 16b-
1(c) 24 and 16b-4,25 General Instruction I of Form 10-
K,26 and Form 10-C.27 In addition, amendments are being
proposed to the following rules and forms: Item 501 28 and Item
601(b) 29 of Regulations S-B 30 and S-K,31 Rule
252(h)(2) 32 of Regulation A,33 Rules 402,34 406,35
464,36 471,37 472 38 and 473 39 of Regulation C,
Rule 504 40 of Regulation D,41, Rule 902 42 of
Regulation S,43 Rule 311 44 of Regulation S-T,45 Form F-
6,46 Form F-7,47 Form F-8,48 Form F-9,49 Form F-
10,50 Form F-80,51 and Exchange Act Rules 12b-11,52 13a-
13,53 14d-1,54 15d-13,55 16a-3,56 and 24b-2.57
\1\ 17 CFR 210.3-16.
\2\ 17 CFR 210.4-05.
\3\ 17 CFR 210.4-06.
\4\ 17 CFR 210.4-10(a) through (h).
\5\ 17 CFR Part 210.
\6\ 17 CFR 229.801(a) and 229.802(a).
\7\ 17 CFR 230.148.
\8\ 15 U.S.C. 77a et seq.
\9\ 17 CFR 230.300 through 230.346.
\10\ Referenced in 17 CFR 239.101.
\11\ 17 CFR 230.445.
\12\ 17 CFR 230.446.
\13\ 17 CFR 230.447.
\14\ 17 CFR 230.494.
\15\ 17 CFR 230.400 through 230.494.
\16\ 17 CFR 230.651 through 230.656.
\17\ 17 CFR 239.300.
\18\ 17 CFR 230.702(T).
\19\ 17 CFR 230.703(T).
\20\ 17 CFR 239.701.
\21\ 17 CFR 240.13a-17.
\22\ 15 U.S.C. 78a et seq.
\23\ 17 CFR 240.15d-17.
\24\ 17 CFR 240.16b-1.
\25\ 17 CFR 240.16b-4.
\26\ 17 CFR 249.310.
\27\ 17 CFR 249.310c.
\28\ 17 CFR 229.501.
\29\ 17 CFR 228.601(b) and 17 CFR 229.601(b).
\30\ 17 CFR Part 228.
\31\ 17 CFR Part 229.
\32\ 17 CFR 230.252(h)(2).
\33\ 17 CFR 230.251 through 230.263.
\34\ 17 CFR 230.402.
\35\ 17 CFR 230.406.
\36\ 17 CFR 230.464.
\37\ 17 CFR 230.471.
\38\ 17 CFR 230.472.
\39\ 17 CFR 230.473.
\40\ 17 CFR 230.504.
\41\ 17 CFR 230.501 through 230.508.
\42\ 17 CFR 230.902.
\43\ 17 CFR 230.901 through 230.904.
\44\ 17 CFR 232.311.
\45\ 17 CFR Part 232.
\46\ 17 CFR 239.36.
\47\ 17 CFR 239.37.
\48\ 17 CFR 239.38.
\49\ 17 CFR 239.39.
\50\ 17 CFR 239.40.
\51\ 17 CFR 239.41.
\52\ 17 CFR 240.12b-11.
\53\ 17 CFR 240.13a-13.
\54\ 17 CFR 240.14d-1.
\55\ 17 CFR 240.15d-13.
\56\ 17 CFR 240.16a-3.
\57\ 17 CFR 240.24b-2.
---------------------------------------------------------------------------
I. Background
Chairman Arthur Levitt organized the Task Force on Disclosure
Simplification (``Task Force'') in August 1995 to review forms and
rules relating to capital-raising transactions, periodic reporting
pursuant to the Exchange Act, proxy solicitations, and tender offers
and beneficial ownership reports under the Williams Act. The goal was
to simplify the disclosure process and to make regulation of capital
formation more effective and efficient where consistent with investor
protection.
In the course of its review, the Task Force met with issuing
companies, investor groups, underwriters, accounting firms, law firms
and others who participate daily in the capital markets (``industry
participants''). The Task Force prepared a report summarizing its
findings and setting forth recommendations and suggestions of areas for
further Commission study. The Task Force Report was presented to the
Commission at an open meeting on March 5, 1996.58
\58\ The Report is available for inspection and copying in the
Commission's public reference room. The Report also is posted on the
Commission's Internet web site (http://www.sec.gov). Persons
interested in commenting on the Report may do so by referring to
File No. S7-6-96.
---------------------------------------------------------------------------
The Task Force has recommended that the Commission eliminate or
modify many rules and forms, as well as simplify several key aspects of
securities offerings. Having had the opportunity to consider a
relatively small number of those recommendations, the Commission has
determined to implement some of the Task Force Report's recommendations
by proposing for public comment the elimination of 45 rules and 4 forms
in conjunction with the publication of the Task Force
[[Page 9849]]
Report. A number of other revisions, including minor and technical
amendments, also are being proposed. Other proposals designed to
improve the disclosure process, both for investors and those subject to
the Commission's disclosure requirements, may be forthcoming in future
releases following the Commission's further consideration of the Task
Force recommendations.
The Commission is taking the first step towards implementation of
certain of the Task Force recommendations by proposing the elimination
or amendment of the rules and forms enumerated below. By issuing these
proposals for public comment simultaneously with the publication of the
Task Force Report, the Commission does not intend to indicate either
approval or disapproval of any of the remaining recommendations or
suggestions in the Task Force Report that it has not yet fully
considered.
II. Non-Financial Disclosure
A. Securities Act Rules
1. Regulation B (Rules 300-346), and Accompanying Schedules A, B, C,
and D, and Forms 1-G and 3-G
Regulation B provides a conditional, limited exemption from
Securities Act registration for offerings of ``fractional undivided
interests'' in oil or gas rights of up to $250,000 per offering. A
precursor to Regulation B was adopted by the Federal Trade Commission
in 1934; 59 Regulation B was last substantially revised in
1972.60
\59\ Release No. 33-185 (June 30, 1934).
\60\ Release No. 33-5314 (October 11, 1972) [37 FR 23829].
---------------------------------------------------------------------------
In order to qualify for the Regulation B exemption, an offeror of
fractional undivided interests in certain specified oil or gas rights
must file an offering sheet with the Commission at least ten days prior
to commencing the offering. The offering sheet must contain the
information specified by Schedules A, B, C, or D, depending on the
distinct type of oil/gas interest, as well as on whether the enterprise
is producing or non-producing. These schedules require some detailed
information concerning the nature and amount of the interests offered;
the legal rights and obligations created by such interests; a
description of the property in question; for producing interests, a
history of the oil/gas production activities in the field in question;
and, for non-producing interests, a description of plans for the
drilling of wells, including the estimated costs and method of
financing such drilling. However, Regulation B does not require any
offeror to furnish current or past financial statements.
Regulation B also requires an offeror to submit two post-offering
reports: Form 1-G and Form 3-G. Form 1-G, which is filed with the
Commission, requires disclosure of information pertaining to each sale
of the offered securities. Form 3-G, which is sent to each purchaser as
well as filed with the Commission, includes more detailed information
pertaining to the offering's results, including the actual cost of
drilling, and expenses incurred in the selling effort.
Between 1966 and 1977, the Commission received 6,904 Regulation B
filings. This relatively large number of Regulation B filings appears
to have corresponded with a spurt of oil/gas drilling activity and
related financing triggered by the energy crisis of the mid 1970s. In
1975 alone, the Commission received 625 Regulation B offering sheets
pertaining to $35.4 million in total sales.
However, by 1977 the number of Regulation B offering sheets
received by the Commission had dropped to 96, covering only $7.3
million in aggregate sales of oil/gas securities. Since then, the
number of Regulation B offering sheets filed has steadily declined,
from 94 such filings in 1980, to 13 in 1985, 7 in 1990, 4 in 1992, and,
finally, 0 in 1995. Moreover, since enactment of Regulation B's
reporting requirements in 1972, the Commission has received only one
each of Form 1-G and Form 3-G.
Comment is requested as to whether Regulation B (and accompanying
schedules and forms) continues to be useful to investors and issuers.
Does the availability of other exemptions, such as the limited offering
exemption from registration set forth in Regulation D, or the private
placement exemption under Section 4(2) of the Securities Act,61
render Regulation B obsolete?
\61\ 15 U.S.C. 77d(2).
---------------------------------------------------------------------------
2. Regulation F (Rules 651-656) and Accompanying Form 1-F
Regulation F provides a conditional limited exemption from
Securities Act registration for assessments levied on assessable stock
and for resales of forfeited assessable stock. The Commission
promulgated Regulation F in 1959 62 at the same time that it
enacted Securities Act Rule 136.63 Rule 136(c) defines
``assessable stock'' to mean ``stock which is subject to resale by the
issuer * * * in the event of a failure of the holder of such stock to
pay any assessment levied thereon.'' Thus, assessable stock is stock,
the purchase of which triggers an annual obligation to pay an amount,
termed an ``assessment,'' to the issuer in addition to the original
offering price. If the buyer fails to pay the levied assessment after
receiving a notice of delinquency from the issuer, the issuer can
reclaim the original stock and resell it, usually at an auction.
\62\ Release No. 33-4121 (July 30, 1959) [24 FR 6385].
\63\ 17 CFR 230.136.
---------------------------------------------------------------------------
Under Rule 136, both the levying of an assessment on assessable
stock and the resale of forfeited assessable stock constitute the
issuance of securities, which trigger registration requirements under
the Act. Regulation F establishes a partial conditional exemption from
registration for these transactions. In order to qualify for the
exemption, a company must be incorporated or have its principal
business operations in the United States. In addition, a company cannot
claim more than $300,000 in exempted assessable stock transactions for
any one calendar year. Form 1-F requires disclosure of pertinent
information about the issuer; its 10% beneficial stockholders; its
directors and officers; its levied assessments, resales of forfeited
assessable stock, and other unregistered securities issued during the
preceding year; and its current proposed assessments or resales of
forfeited assessable stock.
It appears that only two types of companies have issued assessable
stock: mining companies and water extraction/delivery companies, also
known as mutual water companies. Since the promulgation of Regulation
F, approximately 40 such companies have filed a total of 234 1-F forms.
Most of these filings occurred between 1967 and 1982. Only 32 Form 1-F
filings have occurred between 1983 and 1995. Ten companies were
responsible for those filings. Since 1992, only three companies have
filed a total of 10 1-F forms with the Commission.
One reason for the recent steady decline of Form 1-F filings
appears to be the availability of more beneficial limited offering
exemptions, particularly the Rule 504 exemption. In 1982, the
Commission adopted its first version of Rule 504. Following that year,
the annual number of Form 1-F submissions steadily decreased from 9 in
1982, to 6 in 1983, 3 in 1984, 0 in 1985 and 1986, and an average
filing rate of 2-3 for the years 1987 to 1995. Virtually all Regulation
F companies have been non-reporting companies. Accordingly, such
companies are eligible to claim a Rule 504 exemption.
Comment is requested as to whether Regulation F (and accompanying
schedules and forms) continues to be
[[Page 9850]]
useful to investors and issuers. Does the availability of other
exemptions, such as the limited offering exemption from registration
set forth in Regulation D, or the private placement exemption under
Section 4(2) of the Securities Act, render Regulation F obsolete?
3. Securities Act Rule 148
Rule 148 was originally designed to be a counterpart to Rule 144
and, as such, to provide a safe harbor for the resales of certain
categories of securities acquired in bankruptcy proceedings. Included
in these categories are securities issued under the Federal Bankruptcy
Act, portfolio securities sold under the Securities Investors
Protection Act (SIPA), and issuances of debtor securities in
circumstances where the Federal Deposit Insurance Corporation (FDIC)
has been appointed receiver of the debtor's assets.
In 1978, the Bankruptcy Act was repealed and replaced with the
Bankruptcy Code, which provides an exemption from Securities Act
registration as well as a safe harbor for the resales of securities
received under a plan of reorganization. Through no-action letters, the
Commission has taken the position that Rule 148 is applicable only to
resales of securities that were issued under the repealed Bankruptcy
Act, but not to resales of securities under the 1978 Bankruptcy Code.
Comment is requested as to whether Rule 148 continues to serve a
useful purpose (e.g., in connection with securities sold under the SIPA
and/or where the FDIC has been appointed receiver of the debtor's
assets). Commenters also should consider whether the rule be retained
for securities issued under the repealed Bankruptcy Act.
4. Securities Act Rules 445, 446, and 447
The Task Force has recommended that the Commission eliminate Rules
445, 446 and 447, which govern registration statements filed in
connection with securities to be offered through competitive bidding
(e.g., by means of a solicitation of competitive proposals from
underwriters). These rules were put into place in the late 1940s
principally to accommodate registered public utility holding companies
and their subsidiaries (``registered holding companies''). These
companies were subject to Rule 50 under the Public Utility Holding
Company Act of 1935 (``PUHCA''), which required that their securities
be sold through competitive bids.
Rules 445, 446 and 447 appear to be rarely used at present. A
review of Commission filings shows that there was only one competitive
bid filing in 1994, and no competitive bid filings in 1995. One reason
for the lack of filings under these rules may be that, beginning in
1982, the Commission began to relax the restrictive bidding
requirements of PUHCA Rule 50 in recognition of the fact that these
procedures often precluded registered holding companies from obtaining
the benefits of the Securities Act Rule 415 shelf registration
procedure, placing them at a disadvantage compared to other issuers in
getting access to the capital markets on short notice. In 1994, the
Commission determined that competitive bidding was no longer necessary
to prevent abuses in the issuance and sale of securities by these
companies and rescinded Rule 50.\64\
\64\ Release No. 35-26031 (April 20, 1994) [59 FR 21922].
---------------------------------------------------------------------------
Comment is requested as to whether Rules 445, 446, and 447 continue
to be useful in capital raising transactions. Comment also is requested
as to whether other Commission rules, such as Rule 430A (which
eliminates the need for alternative prospectus cover pages),\65\ are
adequate to accommodate the distribution of securities through today's
competitive bidding practices.
\65\ 17 CFR 230.430A.
---------------------------------------------------------------------------
5. Securities Act Rule 494
Rule 494 was adopted in 1951 to accommodate a then common practice
of advertising securities issued by foreign national governments.\66\
The rule limits such ``newspaper prospectuses'' for foreign government
securities to advertisements appearing in newspapers, magazines and
other periodicals that are distributed by second class mail. However,
the practice appears to have fallen into disuse.
\66\ Release No. 33-3425 (August 27, 1951) [16 FR 8820].
---------------------------------------------------------------------------
Comment is requested as to whether Rule 494 continues to serve a
useful purpose. Should this rule be retained, in whole or in part, in
light of contemporary practices relating to offerings of foreign
government securities?
B. Exchange Act Rules
1. Paragraph (c) of Exchange Act Rule 16b-1
This rule exempts the acquisition of securities resulting from a
reorganization of a railroad or other carrier approved by the
Interstate Commerce Commission (``ICC''), an agency that was abolished
as of January 1, 1996. The function of approving such reorganizations
has now been transferred to the Surface Transportation Board, an
independent agency of the Department of Transportation.
Comment is requested as to whether the exemption provided by this
rule continues to serve a useful purpose. In addition, comment is
solicited as to whether the exemption provided by this rule should
continue to be administered by the Surface Transportation Board, as
ICC's successor, or whether it should be treated similarly to the other
Section 16(b) exemptive provisions that are administered by the
Commission.
2. Exchange Act Rule 16b-4
Rule 16b-4 provides an exemption from the requirements of Section
16(b) for certain holding company redemption transactions. There appear
to be few situations where a holding company owns securities in only
one company and desires to exchange its own shares through a redemption
for those of such company, and there appear to be few, if any,
situations in which the rule is invoked.
Commenters should address whether the exemption provided by this
rule has been invoked with any degree of frequency. Comment is also
requested as to whether the rule generally serves a useful purpose, and
should be retained in whole or in part; if retained, for what purpose.
C. Disclosure Requirements
1. Item 501(b) of Regulation S-K
Item 501(b) of Regulation S-K currently requires that registrants
provide a cross-reference sheet immediately following the facing page
in prospectuses, showing the location of the information required to be
included in response to the items in the form. This cross-reference
sheet requirement is in addition the Regulation S-K Item 502(g)
provision that registrants include a reasonably detailed table of
contents.\67\ In light of the table of contents requirement, the
Commission proposes to eliminate the cross-reference sheet requirement.
\67\ References to the cross reference sheet would be deleted
from Securities Act Rule 472.
---------------------------------------------------------------------------
Comment is requested as to whether the table of contents provides
an adequate road map to the prospectus so that the cross-reference
sheet could be eliminated entirely. Commenters who object to total
elimination should specify how the cross-reference sheet should be
modified to reflect their concerns.
[[Page 9851]]
2. Item 501(c)(8) of Regulation S-K \68\
This proposed revision, which eliminates a red ink requirement for
the required prospectus caption ``Subject to Completion'', would
conform the requirements of Regulation S-K with those of Regulation S-
B, which has no requirements relating to the color of the caption.
Comment is solicited on whether the color of the caption serves a
significant purpose.
\68\ 17 CFR 229.501(c)(8).
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3. Exhibits
The Commission proposes to delete the following from the required
list of exhibits in Regulation S-K and Regulation S-B \69\ because the
information in each such exhibit either appears to be infrequently used
or is otherwise available. The specific exhibits proposed to be
eliminated are: Opinion regarding discount on capital shares (Exhibit
6); \70\ Opinion regarding liquidation preference (Exhibit 7);
Statement regarding computation of per share earnings (Exhibit 11);
Material foreign patents (Exhibit 14); and Information from reports
furnished to state insurance regulatory authorities (Exhibit 28).\71\
\69\ Item 601(b) of Regulation S-B and Regulation S-K.
\70\ This exhibit currently is not required in Regulation S-B;
consequently, no change is necessary.
\71\ Regulation S-T Rule 311(c), providing that exhibits filed
by electronic filers pursuant to paragraph (b)(28) may be filed in
paper under cover of Form SE [17 CFR 239.64, 249.444, 269.8] would
be eliminated.
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Comment is solicited on whether any of these exhibits provides
information material to investors and other market participants. Does
the statement regarding computation of per share earnings provide
useful information not otherwise provided in Commission filings?
Commenters should address whether the availability of foreign patent
documentation or documents filed with insurance regulators is
sufficient, or whether they should continue to be filed with securities
disclosure documents.
4. Industry Guide 1
Guide 1 requires disclosure of the principal sources of electric
and gas revenues and the classes of services offered by the registrant
in certain registration statements as well as annual reports on Form
10-K. In addition, if equity securities are being registered and will
be issued at a price below book value per share, Guide 1 requires
disclosure of the effects, if any, on the registrant's business of
issuing such shares at a price below the underlying book value per
share. The Commission proposes to eliminate Guide 1 because the
information requested by the Guide also appears to be within the
coverage of other rules of the Commission, including Items 101 and 303
of Regulation S-K.\72\
\72\ 17 CFR 229.101 and 229.303, respectively.
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Comment is requested on whether any aspect of the information
required by Guide 1 is not furnished by affected issuers pursuant to
other Commission rules, and if not, whether maintaining a separate
Guide 1 would be necessary or appropriate and in the interests of
investors.
D. Forms
1. Form 701
The Commission proposes to delete expired Form 701 (Notice of sales
pursuant to an exemption under Section 701) and the rules that required
its filing (Securities Act Rules 702(T) and 703(T)) in order to remove
them from the Code of Federal Regulations. By their terms, Rules 702(T)
and 703(T), and thus Form 701, were effective only until 1993.
Commenters who believe that this form should be re-instated should
provide specific reasons as to the bases for their views.
2. Form F-6
Commission is proposing to eliminate Items 3(e) and 4(a) of Form F-
6, governing the registration of depositary shares evidenced by
American Depositary Receipts (``ADRs''), because the elicited
information appears to be of little use to investors or the marketplace
at large.
Item 3(e) of Form F-6 requires the registrant to include, as an
exhibit, the name of each dealer known to the registrant who has
deposited shares against issuance of ADRs, proposes to deposit shares
or participated in a plan to deposit shares, within the past six
months. Under Item 4(a) of Form F-6, a registrant must undertake to
provide semi-annual updated information generally concerning dealers
depositing shares in the facility and the number of shares issued/
cancelled during the covered period. However, because the base number
of outstanding shares is not normally publicly available, the
information regarding semi-annual adjustments to that number appears to
be of little use.
Comment is requested as to whether any information provided by Item
3(e) or 4(a) serves any useful purpose, whether to the issuers of the
underlying shares (particularly where the ADR facility is unsponsored),
ADR purchasers, or the markets in which these securities are traded.
3. Form 10-C
The Commission proposes to eliminate Form 10-C and Rules 13a-17 and
15d-17, which require issuers registered under the Exchange Act and
quoted in Nasdaq to report changes in corporate name to the Commission
and the NASD, or an aggregate increase or decrease of a class of
securities outstanding that exceeds 5% of the amount of securities of
the class outstanding. In proposing the elimination of this form, the
Commission notes that the information regarding changes in number of
shares outstanding typically is reflected in an issuer's financial
statements. Comment is requested as to whether the Form 10-C provides
material information not otherwise provided. Commenters who favor
retention of Form 10-C should be specific with respect to the reasoning
for their position.
III. Financial Disclosure
The Commission also proposes to implement certain of the
recommendations in the Task Force Report relating to accounting
disclosure rules, as set forth below. These rules were identified as
being largely duplicative of generally accepted accounting principles
(``GAAP'') or other Commission rules. Accordingly, maintaining separate
Commission rules would appear unnecessary.
The proposed changes are not intended to alter current accounting
standards or disclosure practices. Comment is requested on whether any
of the proposed changes would have the effect of altering current
accounting standards or disclosure practices, and if so, how.
1. Rule 3-16 of Regulation S-X
Rule 3-16(a) of Regulation S-X sets forth the requirement that a
registrant, which has emerged from a significant reorganization,
disclose in its financial statements a brief explanation of such
reorganization. In addition, if the registrant is about to emerge from
a reorganization, Rule 3-16(b) of Regulation S-X requires a balance
sheet giving effect to the plan of reorganization with separate
presentation of the registrant's balance sheet before the
reorganization, the changes to be effected in the reorganization, and
the balance sheet of the registrant after the reorganization.
Registrants have historically satisfied the requirements of Rule 3-
16(b) with pro forma financial information.
[[Page 9852]]
In November 1990, the AICPA issued SOP 90-7, ``Financial Reporting
by Entities in Reorganization Under the Bankruptcy Code,'' which
prescribes the accounting and financial statement presentation for
entities in bankruptcy reorganization and for entities which have
emerged from bankruptcy. ARB 43, Section 210 of the Financial Reporting
Codification, and SAB Topic 5:S prescribes the accounting and financial
statement disclosures for quasi-reorganizations. Further, Article 11 of
Regulation S-X requires pro forma financial information whenever
consummation of events or transactions occurs or is probable and for
which disclosure of pro forma financial information would be material
to investors.
The Commission proposes to eliminate Rule 3-16 of Regulation S-X
because the information requested by that Rule also appears to be
within the scope of Article 11 and the disclosure requirements of the
other accounting literature discussed above. Comment is requested on
whether there are any reorganizations within the scope of Rule 3-16
which would be outside the scope of SOP 90-7, ARB 43, Section 210 of
the Financial Reporting Codification, and SAB 78 [SAB Topic 5:S], for
which disclosure of the information required by Rule 3-16 would be
material to investors. In addition, comment is requested on whether the
information required by Rule 3-16 would be required to be disclosed in
whole or in part by the items discussed above, and if so, whether
maintaining a separate rule is necessary or appropriate to ensure full
and fair disclosure.
2. Rule 4-05 of Regulation S-X
The Commission proposes to eliminate Rule 4-05 of Regulation S-X,
relating to current assets and current liabilities when a company's
operating cycle is longer than one year, because Chapter 3A of ARB 43
and current accounting practices, requires the same presentation and
information. Comment is requested on whether there would be any
material loss of information in financial statements if Rule 4-05 of
Regulation S-X were to be eliminated.
3. Rule 4-06 of Regulation S-X
The Commission proposes to eliminate Rule 4-06 of Regulation S-X,
which currently provides that reacquired indebtedness of a registrant
must be deducted from the appropriate liability caption on the
registrant's balance sheet. This rule is believed by some to be
unnecessary because GAAP, including APB 26 and SFAS 76, requires that
such items be considered extinguished and deducted from the appropriate
caption on the balance sheet. Further, with respect to the provisions
of Rule 4-06 relating to reacquired indebtedness held for pension and
other special funds, SFAS 87 and SFAS 106 prescribe the definition of,
and accounting for, plan assets for pension plans and other post
employment benefit plans, which are treated as issuer liabilities.
Comment is requested on whether maintaining a separate Commission
Rule 4-06 is necessary or appropriate in light of applicable GAAP, and
the needs of users of registrant financial statements.
4. Rule 4-10 of Regulation S-X
The requirements of the successful efforts accounting method
followed by oil and gas producers are set forth in paragraphs (b)
through (h) of Rule 4-10 of Regulation S-X. As a result of the
Commission's action to supersede the FASB's determination to designate
successful efforts as the method of accounting to be applied uniformly
by all oil and gas producers,\73\ specific rules for both the
successful efforts and full cost accounting methods were maintained in
Regulation S-X.
\73\ Accounting Series Release No. 253 (August 31, 1978) [43 FR
40688].
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The successful efforts method of accounting codified into Rule 4-10
appears to be duplicative of the accounting standards adopted by the
FASB in SFAS 19. Because of such duplication, the Commission proposes
to eliminate the portions of Rule 4-10 which duplicate SFAS 19--
paragraph (b) through (h) of the Rule. Comment is requested on whether
there are any significant differences between paragraphs (b) through
(h) of Rule 4-10 and the requirements of SFAS 19 and, if not, whether
maintaining separate Commission rules is necessary or appropriate.
IV. Miscellaneous Minor and Technical Changes
The Commission proposes to make the following technical changes to
certain rules and forms under the Securities Act and the Exchange Act.
Comment is sought on the necessity or appropriateness of each of the
proposed changes.
Correct a number of out-of-date cross references in
certain Securities Act rules and forms.\74\
\74\ Proposed amendments to Rule 406, 464 and 473 of Regulation
C and Forms F-7, F-8, F-9, F-10 and F-80.
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Allow the addition or withdrawal of a delaying notation
under Regulation A \75\ or the filing of a delaying or other amendment
under Rule 473 \76\ by facsimile transmission, so as to provide issuers
with additional flexibility in filing documents with the Commission.
\75\ Proposed amendment to 17 CFR 230.252(h)(2).
\76\ 17 CFR 230.473.
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Modify and clarify signature requirements to allow manual,
typed, duplicated or faxed signatures on paper filings, with a manual
signature retention requirement for typed, duplicated or faxed
signatures.\77\ This proposal would clarify existing rules, as well as
extend to paper filers the option of filing typed signature pages, thus
providing comparable treatment to both paper and electronic filers.\78\
The proposed language would retain the five-year manual signature
retention requirement of Regulation S-T Rule 302(b). Comment is
requested specifically as to whether the five-year retention period is
necessary, or whether all signature retention requirements, including
those in Regulation S-T, should be reduced to a shorter period, such as
three or four years.
\77\ Proposed amendments to Rule 402 and 471 of Regulation C,
and Exchange Act Rules 12b-11, 14d-1 and 16a-3.
\78\ See Rule 302 of Regulation S-T [17 CFR 232.302].
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Revise provisions in Rule 406 of Regulation C and Exchange
Act Rule 24b-2 to emphasize the fact that confidential treatment
requests should not be submitted electronically, but rather, should be
submitted in paper. This is intended to minimize the chances of a
confidential document being erroneously submitted as part of a public
filing.
Modify Rule 504 of Regulation D \79\ so that the rule
itself states that there is no information delivery requirement in
connection with Rule 504 offerings. This is intended to eliminate
confusion resulting from the current language of Regulation D.
\79\ Proposed amendment to 17 CFR 230.504.
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Update the Regulation S definition of ``Designated
Offshore Securities Market'' to include markets that have been
recognized as such by the Division of Corporation Finance pursuant to
delegated authority since the adoption of the regulation.\80\
\80\ Proposed amendment to Rule 902 of Regulation S.
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Eliminate provisions exempting small life and mutual life
insurance companies from filing quarterly financial results on Form 10-
Q and Form 10-QSB.\81\ The exemption for small life insurance companies
expired
[[Page 9853]]
by its terms on December 20, 1983, and the exemption for mutual life
companies was meant to track the small life insurance companies
exemption.
\81\ Proposed amendment to Exchange Act Rules 13a-13 and 15d-16.
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Eliminate a general instruction to Form 10-K \82\
referring to filings on Form S-18, which form was replaced by other
small business forms in 1992.
\82\ General Instruction I.
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V. General Request for Comment
Any interested persons wishing to submit comment on any of the
proposals set forth in this release, are invited to do so by submitting
them in triplicate to Jonathan G. Katz, Secretary, U.S. Securities and
Exchange Commission, 450 Fifth Street, N.W., Washington D.C. 20549.
Comments also may be submitted electronically at the following E-mail
address: [email protected]. All comment letters should refer to
File Number S7-6-96; this file number should be included on the subject
line if E-mail is used. Comment is specifically requested as to whether
any of the rules or forms that have been proposed to be eliminated
provide disclosure that is material to investors, issuers or other
market participants, the states or any other entity. Comment also is
requested on any competitive burdens that might result from the
adoption of any of the proposals. All comments will be considered by
the Commission in complying with its responsibility under Section 23(a)
of the Exchange Act.\83\ Comments received will be available for public
inspection and copying in the Commission's public reference room, 450
Fifth Street, N.W., Washington, D.C. 20549. Electronically submitted
comment letters will be posted on the Commission's Internet web site
(http://www.sec.gov).
\83\ 15 U.S.C. 78w(a).
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VI. Cost-Benefit Analysis
Commenters are requested to provide their views and data relating
to any costs and benefits associated with these proposals to aid the
Commission in its evaluation of the costs and benefits that may result
from the changes proposed in this release. It is anticipated that these
proposals will benefit those with filing obligations by simplifying or
clarifying current rules and by eliminating rules and forms that are
outdated or rarely used for other reasons. No detrimental effects to
investors are expected. However, it is not believed that the changes
outlined herein will affect significantly the overall costs and burdens
associated with filing requirements generally.
VII. Summary of Initial Regulatory Flexibility Analysis
An initial regulatory flexibility analysis has been prepared in
accordance with 5 U.S.C. 603 concerning the proposed amendments. The
analysis notes that the amendments are to eliminate certain rules and
forms and make minor revisions to the Commission's rules to correct or
modernize them.
As discussed more fully in the analysis, the proposals would affect
persons that are small entities, as defined by the Commission's rules.
It is not expected that increased reporting, recordkeeping and
compliance burdens would result from the changes. The analysis also
indicates that there are no current federal rules that duplicate,
overlap or conflict with the rules and forms to be amended.
As stated in the analysis, several possible significant
alternatives to the proposals were considered, including, among others,
establishing different compliance or reporting requirements for small
entities or exempting them from all or part of the proposed
requirements. As discussed more fully in the analysis, the nature of
these amendments do not lend themselves to separate treatment, nor
would they impose additional burdens on small business issuers.
Written comments are encouraged with respect to any aspect of the
analysis. Such comments will be considered in the preparation of the
Final Regulatory Flexibility Analysis if the proposed amendments are
adopted. A copy of the analysis may be obtained by contacting James R.
Budge, Office of Disclosure Policy, Division of Corporation Finance,
Mail Stop 3-7, 450 Fifth Street, N.W., Washington, D.C. 20549.
VIII. Paperwork Reduction Act
The staff has consulted with the Office of Management and Budget
(``OMB'') and has submitted the proposals for review in accordance with
the Paperwork Reduction Act of 1995 (``the Act'')(44 U.S.C. 3501 et
seq.). It is anticipated that the proposals to eliminate certain
exhibits from Item 601(b) of Regulations S-K and S-B 84 would
reduce the existing information collection requirements that are
associated with the forms identified in the exhibit tables in those
regulations. The net reduction for all affected information collection
requirements would be an estimated 62,663 hours, or about .3% of the
total burden hours associated with current requirements.
\84\ The titles of the affected information collection
requirements are ``Regulation S-K'' and ``Regulation S-B.''
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With respect to the proposal to eliminate certain requirements
within Form F-6,85 the supporting statement indicates that
registrants no longer would be required to furnish the name of each
dealer known to it or depositary who: 1) has deposited shares against
the issuance of ADRs within the past six months, 2) proposes to deposit
shares against issuance of ADRs, or 3) assisted or participated in the
creation of the plan of the issuance of the ADRs or the selection of
the deposited securities. This proposal would reduce the total
information burden of affected registrants (currently 339 hours) by
approximately .1 hour per submission, for a total reduction of 33.9
hours for all submissions.
\85\ This information collection is entitled ``Form F-6.''
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The Commission solicits comment: concerning whether the proposed
change in collection of information is necessary; on the accuracy of
the Commission's estimate of the burden of the proposed changes to the
collection of information; on the quality, utility and clarity of the
information to be collected; and whether the burden of collection of
information on those who are to respond, including through the use of
automated collection techniques or other forms of information
technology, may be minimized.
Persons desiring to submit comments on the collection of
information requirements should direct them to the Office of Management
and Budget, Attention: Desk Officer for the Securities and Exchange
Commission, Office of Information and Regulatory Affairs, Washington,
D.C. 20503, and should also send a copy of their comments to Jonathan
G. Katz, Secretary, Securities and Exchange Commission, 450 Fifth
Street, N.W., Washington, D.C. 20549, with reference to File No. S7-6-
96. The Office of Management and Budget is required to make a decision
concerning the collection of information between 30 and 60 days after
publication, so a comment to OMB is best assured of having its full
effect if OMB receives it within 30 days of publication.
IX. Statutory Basis for the Proposals
The foregoing amendments are proposed pursuant to Sections 6, 7, 8,
10 and 19(a) of the Securities Act, Sections 3, 12, 13, 14, 15(d),
23(a) and 35A of the Exchange Act.
[[Page 9854]]
List of Subjects in 17 CFR Parts 210, 228, 229, 230, 232, 239, 240, and
249
Accountants, Confidential business information, Registration
requirements, Reporting and recordkeeping requirements, Securities.
Text of the Proposals
In accordance with the foregoing, Title 17, Chapter II of the Code
of Federal Regulations is proposed to be amended as follows:
PART 210--FORM AND CONTENT OF AND REQUIREMENTS FOR FINANCIAL
STATEMENTS, SECURITIES ACT OF 1933, SECURITIES EXCHANGE ACT OF
1934, PUBLIC UTILITY HOLDING COMPANY ACT OF 1935, INVESTMENT
COMPANY ACT OF 1940, AND ENERGY POLICY AND CONSERVATION ACT OF 1975
1. The authority citation for Part 210 continues to read as
follows:
Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s, 77aa(25),
77aa(26), 78l, 78m, 78n, 78o(d), 78w(a), 78ll(d), 79e(b), 79j(a),
79n, 79t(a), 80a-8, 80a-20, 80a-29, 80a-30, 80a-37, unless otherwise
noted.
Sec. 210.3-16 [Removed and reserved]
2. By removing and reserving Sec. 210.3-16.
Sec. 210.4-05 [Removed and reserved]
3. By removing and reserving Sec. 210.4-05.
Sec. 210.4-06 [Removed and reserved]
4. By removing and reserving Sec. 210.4-06.
Sec. 210.4-10 [Amended]
5. By amending Sec. 210.4-10 by removing the heading preceding
paragraph (b), removing paragraphs (b) through (h) and redesignating
paragraphs (i) and (j) as paragraphs (b) and (c).
PART 228--INTEGRATED DISCLOSURE SYSTEM FOR SMALL BUSINESS ISSUERS
6. The authority citation for Part 228 continues to read as
follows:
Authority: 15 U.S.C. 77e, 77f, 77g, 77h, 77j, 77k, 77s,
77aa(25), 77aa(26), 77ddd, 77eee, 77ggg, 77hhh, 77jjj, 77nnn, 77sss,
78l, 78m, 78n, 78o, 78w, 78ll, 80a-8, 80a-29, 80a-30, 80a-37, 80b-
11, unless otherwise noted.
Sec. 228.60 [Amended]
7. By amending Sec. 228.601 (Item 601 of Regulation S-B) in the
exhibit table, by removing and reserving exhibit numbers (7), (11),
(14), and (28), and by removing and reserving paragraphs (b)(7),
(b)(11), (b)(14), and (b)(28).
PART 229--STANDARD INSTRUCTIONS FOR FILING FORMS UNDER SECURITIES
ACT OF 1933, SECURITIES EXCHANGE ACT OF 1934 AND ENERGY POLICY AND
CONSERVATION ACT OF 1975--REGULATION S-K
8. The authority citation continues to read in part as follows:
Authority: 15 U.S.C. 77e, 77f, 77g, 77h, 77j, 77k, 77s,
77aa(25), 77aa(26), 77ddd, 77eee, 77ggg, 77hhh, 77iii, 77jjj, 77nnn,
77sss, 78c, 78i, 78j, 78l, 78m, 78n, 78o, 78w, 78ll(d), 79e, 79n,
79t, 80a-8, 80a-29, 80a-30, 80a-37, 80b-11, unless otherwise noted.
* * * * *
Sec. 229.501 [Amended]
9. By amending Sec. 229.501 (Item 501 Regulation S-K) by removing
paragraph (b), redesignating paragraph (c) as paragraph (b), and in
newly designated paragraph (b)(8) by removing the words ``, in red
ink''.
Sec. 229.601 [Amended]
10. By amending Sec. 229.601 (Item 601 of Regulation S-K) in the
exhibit table, by removing and reserving exhibit numbers (6), (7),
(11), (14) and (28), and by removing and reserving paragraphs (b)(6),
(b)(7), (b)(11), (b)(14) and (b)(28). .
Secs. 229.801 and 229.802 [Amended]
11. By amending Sec. 229.801 and Sec. 229.802 by removing and
reserving paragraph (a) in both sections, and by removing Industry
Guide 1.
PART 230--GENERAL RULES AND REGULATIONS, SECURITIES ACT OF 1933
12. The authority citation for Part 230 continues to read in part
as follows:
Authority: 15 U.S.C. 77b, 77f, 77g, 77h, 77j, 77s, 77sss, 78c,
78d, 78l, 78m, 78n, 78o, 78w, 78ll(d), 79t, 80a-8, 80a-29, 80a-30,
and 80a-37, unless otherwise noted.
* * * * *
Sec. 230.148 [Removed and reserved]
13. By removing and reserving Sec. 230.148.
14. By amending Sec. 230.252 by revising paragraph (h)(2) to read
as follows:
Sec. 230.252 Offering statement.
* * * * *
(h) Amendments.
(1) * * *
(2) An amendment to include a delaying notation pursuant to
paragraph (g)(2) or to remove one pursuant to paragraph (g)(3) of this
section after the initial filing of an offering statement may be made
by telegram, letter or facsimile transmission. Each such telegraphic
amendment shall be confirmed in writing within a reasonable time by
filing a signed copy. Such confirmation shall not be deemed an
amendment.
Secs. 230.300-230.346 [Removed and reserved]
15. By removing the undesignated center heading--Regulation B--and
removing and reserving Secs. 230.300 through 230.346 (Regulation B)
(The undesignated center heading ``Attention Electronic Filers'' and
the paragraph immediately following remain unchanged).
16. By amending Sec. 230.402 by removing the word ``manually'' from
the fourth sentence of paragraph (a), and from the fourth sentence of
paragraph (c), and by revising paragraph (e) to read as follows:
Sec. 230.402 Number of copies; binding; signatures.
* * * * *
(e) Signatures. Where the Act or the rules thereunder, including
paragraphs (a) and (c) of this section, require a document filed with
or furnished to the Commission to be signed, such document shall be
manually signed, or signed using either typed signatures or duplicated
or facsimile versions of manual signatures. Where typed, duplicated or
facsimile signatures are used, each signatory to the filing shall
manually sign a signature page or other document authenticating,
acknowledging or otherwise adopting his or her signature that appears
in the filing. Such document shall be executed before or at the time
the filing is made and shall be retained by the registrant for a period
of five years. Upon request, the registrant shall furnish to the
Commission or its staff a copy of any or all documents retained
pursuant to this section.
17. By amending Sec. 230.406 by revising the heading ``Preliminary
Note'' to read ``Preliminary Notes'', by designating the preliminary
note as preliminary note 1, adding preliminary note 2, removing from
paragraph (a) the words ``or on Form F-4 (Sec. 239.34 of this chapter)
complying with General Instruction F of that Form'', and removing
paragraph (j) to read as follows:
Sec. 230.406 Confidential treatment of information filed with the
Commission.
Preliminary Notes: (1) * * *
(2) All confidential treatment requests shall be submitted in paper
format only, whether or not the filer is an electronic filer. See Rule
101(c)(1)(i) of Regulation S-T (Sec. 232.101(c)(1)(i) of this chapter).
* * * * *
[[Page 9855]]
Secs. 230.445-230.447 [Removed and reserved]
18. By removing the undesignated center heading Competitive Bids
and removing and reserving Secs. 230.445 through 230.447.
Sec. 230.464 [Amended]
19. By amending Sec. 230.464 by revising the heading to read
``Effective date of post-effective amendments to registration
statements filed on Form S-8 and on certain Forms S-3, S-4, F-2 and F-
3.'' and by removing from the introductory text the words ``or on Form
F-4 (Sec. 239.34 of this chapter) that there is continued compliance
with General Instruction F of that Form'' and from paragraph (b) the
words ``or a Form F-4 registration statement complying with General
Instruction F of that Form''.
20. By amending Sec. 230.471 by designating the text as paragraph
(a) and adding paragraph (b) to read as follows:
Sec. 230.471 Signatures to amendments.
(a) * * *
(b) Where the Act or the rules thereunder require a document filed
with or furnished to the Commission to be signed, such document shall
be manually signed, or signed using either typed signatures or
duplicated or facsimile versions of manual signatures. Where typed,
duplicated or facsimile signatures are used, each signatory to the
filing shall manually sign a signature page or other document
authenticating, acknowledging or otherwise adopting his or her
signature that appears in the filing. Such document shall be executed
before or at the time the filing is made and shall be retained by the
registrant for a period of five years. Upon request, the registrant
shall furnish to the Commission or its staff a copy of any or all
documents retained pursuant to this section.
21. By amending Sec. 230.472 by revising the second sentence of
paragraph (b) to read as follows:
Sec. 230.472 Filing of amendments; number of copies.
* * * * *
(b) * * * Each such copy of the amended prospectus shall be
accompanied by a copy of the cross reference sheet required by Rule
481(a) (Sec. 230.481(a)), where applicable, if the amendment of the
prospectus resulted in any change in the accuracy of the cross
reference sheet previously filed. * * *
* * * * *
22. By amending Sec. 230.473 by revising the second sentence of
paragraph (c) and by removing from paragraph (d) the words ``or on Form
F-4 (Sec. 239.34 of this chapter) complying with General Instruction F
of that Form'' to read as follows:
Sec. 230.473 Delaying amendments.
* * * * *
(c) * * * Any such amendment filed after the filing of the
registration statement, any amendment altering the proposed date of
public sale of the securities being registered, or any amendment filed
pursuant to paragraph (b) of this section may be made by telegram,
letter or facsimile transmission. * * *
* * * * *
Sec. 230.494 [Removed and reserved]
23. By removing and reserving Sec. 230.494.
24. By amending Sec. 230.504 by revising paragraph (b)(1) to read
as follows:
Sec. 230.504 Exemption for limited offerings and sales of securities
not exceeding $1,000,000.
* * * * *
(b) Conditions to be met. (1) To qualify for exemption under this
Sec. 230.504, offers and sales must satisfy the terms and conditions of
Secs. 230.501 and 230.502(a).
* * * * *
Secs. 230.651-230.656 [Removed and reserved]
25. By removing the undesignated center heading and by removing and
reserving Secs. 230.651 through 230.656 (Regulation F).
Sec. 230.702 [Amended]
26. By removing Sec. 230.702(T).
Sec. 230.703 [Amended]
27. By removing Sec. 230.703(T).
Sec. 230.902 [Amended]
28. By amending Sec. 230.902 at the end of paragraph (a)(1) before
the word ``and'', add the words ``the Helsinki Stock Exchange; the
Alberta Stock Exchange; the Oslo Stock Exchange; the Mexico Stock
Exchange; and the Istanbul Stock Exchange;''.
PART 232--REGULATION S-T--GENERAL RULES AND REGULATIONS FOR
ELECTRONIC FILINGS
29. The authority citation for Part 232 continues to read as
follows:
Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s(a), 77sss(a),
78c(b), 78l, 78m, 78n, 78o(d), 78w(a), 78ll, 79t(a), 80a-8, 80a-29,
80a-30 and 80a-37.
Sec. 232.311 [Amended]
30. By amending Sec. 232.311 by removing paragraph (c) and
redesignating paragraphs (d) through (i) as paragraphs (c) through (h).
PART 239--FORMS PRESCRIBED UNDER THE SECURITIES ACT OF 1933
31. The authority citation for Part 239 continues to read in part
as follows:
Authority: 15 U.S.C. 77f, 77f, 77h, 77j, 77s, 77sss, 78c, 78l,
78m, 78n, 78o(d), 78w(a), 78ll(d), 79e, 79f, 79g, 79j, 79l, 79m,
79n, 79q, 79t, 80a-8, 80a-29, 80a-30 and 80a-37, unless otherwise
noted.
* * * * *
32. By amending Form F-6 (referenced in Sec. 239.36) by removing
Items 3(e) and 4(a) and by redesignating Item 3(f) as Item 3(e) and
Items 4(b) and 4(c) as Items 4(a) and 4(b).
[Note: The text of Form F-6 does not, and the amendments thereto
will not, appear in the Code of Federal Regulations.]
Sec. 239.37 [Amended]
33. By amending Form F-7 (referenced in Sec. 239.37) in Part I,
Item 3 by removing the words ``Rule 24 of the Commission's Rules of
Practice'' from the second sentence and inserting ``Item 10(d) of
Regulation S-K'' in its place.
[Note: The text of Form F-7 does not, and the amendments thereto
will not, appear in the Code of Federal Regulations.]
Sec. 239.38 [Amended]
34. By amending Form F-8 (referenced in Sec. 239.38) in Part I,
Item 3 by removing the words ``Rule 24 of the Commission's Rules of
Practice'' from the second sentence and inserting ``Item 10(d) of
Regulation S-K'' in its place.
[Note: The text of Form F-8 does not, and the amendments thereto
will not, appear in the Code of Federal Regulations.]
Sec. 239.39 [Amended]
35. By amending Form F-9 (referenced in Sec. 239.39) in Part I,
Item 3 by removing the words ``Rule 24 of the Commission's Rules of
Practice'' from the second sentence and inserting ``Item 10(d) of
Regulation S-K'' in its place.
[Note: The text of Form F-9 does not, and the amendments thereto
will not, appear in the Code of Federal Regulations.]
Sec. 239.40 [Amended]
36. By amending Form F-10 (referenced in Sec. 239.40) in Part I,
Item 4 by removing the words ``Rule 24 of the Commission's Rules of
Practice'' from the second sentence and inserting ``Item 10(d) of
Regulation S-K'' in its place.
[Note: The text of Form F-10 does not, and the amendments
thereto will not, appear in the Code of Federal Regulations.]
Sec. 239.41 [Amended]
37. By amending Form F-80 (referenced in Sec. 239.41) in Part I,
Item 3
[[Page 9856]]
by removing the words ``Rule 24 of the Commission's Rules of Practice''
from the second sentence and inserting ``Item 10(d) of Regulation S-K''
in its place.
[Note: The text of Form F-80 does not, and the amendments
thereto will not, appear in the Code of Federal Regulations.]
Sec. 239.101 [Removed and reserved]
38. By removing and reserving Sec. 239.101 and by removing
Schedules A, B, C, D and Forms 1-G and 3-G referenced in that section.
Sec. 239.300 [Removed and reserved]
39. By removing and reserving Sec. 239.300 and by removing Form 1-
F.
Sec. 239.701 [Removed and reserved]
40. By removing and reserving Sec. 239.701 and by removing Form
701.
PART 240--GENERAL RULES AND REGULATIONS, SECURITIES EXCHANGE ACT OF
1934
41. The authority citation for Part 240 continues to read in part
as follows:
Authority: 15 U.S.C. 77c, 77d, 77g, 77j, 77s, 77eee, 77ggg,
77nnn, 77sss, 77ttt, 78c, 78d, 78i, 78j, 78l, 78m, 78n, 78o, 78p,
78q, 78s, 78w, 78x, 78ll(d), 79q, 79t, 80a-20, 80a-23, 80a-29, 80a-
37, 80b-3, 80b-4 and 80b-11, unless otherwise noted.
* * * * *
42. By amending Sec. 240.12b-11 by removing the word ``manually''
from paragraph (b) and by revising paragraph (d) to read as follows:
Sec. 240.12b-11 Number of copies; signatures; binding.
* * * * *
(d) Signatures. Where the Act or the rules, forms, reports or
schedules thereunder, including paragraph (b) of this section, require
a document filed with or furnished to the Commission to be signed, such
document shall be manually signed, or signed using either typed
signatures or duplicated or facsimile versions of manual signatures.
Where typed, duplicated or facsimile signatures are used, each
signatory to the filing shall manually sign a signature page or other
document authenticating, acknowledging or otherwise adopting his or her
signature that appears in the filing. Such document shall be executed
before or at the time the filing is made and shall be retained by the
filer for a period of five years. Upon request, the filer shall furnish
to the Commission or its staff a copy of any or all documents retained
pursuant to this section.
43. By amending Sec. 240.13a-13 by revising the section heading and
paragraph (c) to read as follow:
Sec. 240.13a-13 Quarterly reports on Form 10-Q and Form 10-QSB
(Sec. 249.308a and Sec. 249.308b of this Chapter).
* * * * *
(c) Part I of the quarterly reports on Form 10-Q or Form 10-QSB
need not be filed by mining companies not in the production stage but
engaged primarily in the exploration for the development of mineral
deposits other than oil, gas or coal, if all of the following
conditions are met:
(1) The registrant has not been in production during the current
fiscal year or the two years immediately prior thereto; except that
being in production for an aggregate period of not more than eight
months over the three-year period shall not be a violation of this
condition.
(2) Receipts from the sale of mineral products or from the
operations of mineral producing properties by the registrant and its
subsidiaries combined have not exceeded $500,000 in any of the most
recent six years and have not aggregated more than $1,500,000 in the
most recent six fiscal years.
* * * * *
Sec. 240.13a-17 [Removed and reserved]
44. By removing and reserving Sec. 240.13a-17.
45. By amending Sec. 240.14d-1 by revising paragraph (d) to read as
follows:
Sec. 240.14d-1 Scope of and definitions applicable to Regulations 14D
and 14E.
* * * * *
(d) Signatures. Where the Act or the rules, forms, reports or
schedules thereunder require a document filed with or furnished to the
Commission to be signed, such document shall be manually signed, or
signed using either typed signatures or duplicated or facsimile
versions of manual signatures. Where typed, duplicated or facsimile
signatures are used, each signatory to the filing shall manually sign a
signature page or other document authenticating, acknowledging or
otherwise adopting his or her signature that appears in the filing.
Such document shall be executed before or at the time the filing is
made and shall be retained by the filer for a period of five years.
Upon request, the filer shall furnish to the Commission or its staff a
copy of any or all documents retained pursuant to this section.
46. By amending Sec. 240.15d-13 by revising the section heading and
paragraph (c) to read as follow:
Sec. 240.15d-13 Quarterly reports on Form 10-Q and Form 10-QSB
(Sec. 249.308a and Sec. 249.308b of this Chapter).
* * * * *
(c) Part I of the quarterly reports on Form 10-Q or Form 10-QSB
need not be filed by mining companies not in the production stage but
engaged primarily in the exploration for the development of mineral
deposits other than oil, gas or coal, if all of the following
conditions are met:
(1) The registrant has not been in production during the current
fiscal year or the two years immediately prior thereto; except that
being in production for an aggregate period of not more than eight
months over the three-year period shall not be a violation of this
condition.
(2) Receipts from the sale of mineral products or from the
operations of mineral producing properties by the registrant and its
subsidiaries combined have not exceeded $500,000 in any of the most
recent six years and have not aggregated more than $1,500,000 in the
most recent six fiscal years.
* * * * *
Sec. 239.15d-17 [Removed and reserved]
47. By removing and reserving Sec. 240.15d-17.
48. By amending Sec. 240.16a-3 by revising paragraph (i) to read as
follows:
Sec. 240.16a-3 Reporting transactions and holdings.
* * * * *
(i) Signatures. Where the Act or the rules, forms, reports or
schedules thereunder require a document filed with or furnished to the
Commission to be signed, such document shall be manually signed, or
signed using either typed signatures or duplicated or facsimile
versions of manual signatures. Where typed, duplicated or facsimile
signatures are used, each signatory to the filing shall manually sign a
signature page or other document authenticating, acknowledging or
otherwise adopting his or her signature that appears in the filing.
Such document shall be executed before or at the time the filing is
made and shall be retained by the filer for a period of five years.
Upon request, the filer shall furnish to the Commission or its staff a
copy of any or all documents retained pursuant to this section.
Sec. 240.16b-1 [Amended]
49. By amending Sec. 240.16b-1 by removing paragraph (c).
Sec. 240.16b-4 [Removed and reserved]
50. By removing and reserving Sec. 240.16b-4.
51. By amending Sec. 240.24b-2 by adding a preliminary note
preceding the text of paragraph (a) and by removing paragraph (g), to
read as follows:
[[Page 9857]]
Sec. 240.24b-2 Nondisclosure of information filed with the Commission
and with any exchange.
Preliminary Note
Confidential treatment requests shall be submitted in paper format
only, whether or not the filer is required to submit a filing in
electronic format.
* * * * *
PART 249--FORMS, SECURITIES EXCHANGE ACT OF 1934
52. The authority citation for Part 249 continues to read in part
as follows:
Authority: 15 U.S.C. 78a, et seq., unless otherwise noted;
* * * * *
Sec. 249.310 [Amended]
53. By amending Form 10-K (referenced in Sec. 249.310) by removing
general instruction I. and redesignating general instruction J. as
general instruction I.
[Note: The text of Form 10-K does not, and the amendments
thereto will not, appear in the Code of Federal Regulations.]
Sec. 249.310c [Removed and reserved]
54. By removing and reserving Sec. 249.310c and by removing Form
10-C.
Dated: March 5, 1996.
By the Commission.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 96-5607 Filed 3-8-96; 8:45 am]
BILLING CODE 8010-01-P
Complete official Federal Register PDF
FR Doc. 96-5237 Coastal Zone Management Program Regulations
[Federal Register Volume 61, Number 48 (Monday, March 11, 1996)]
[Proposed Rules]
[Pages 9746-9762]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-5237]
[[Page 9745]]
_______________________________________________________________________
Part II
Department of Commerce
_______________________________________________________________________
National Oceanic and Atmospheric Administration
_______________________________________________________________________
15 CFR Part 923, et al.
Coastal Zone Management Program Regulations; Proposed Rule
Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 /
Proposed Rules
[[Page 9746]]
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Parts 923, 926, 927, 928, 932, 933
[Docket No. 960126015-6015-01]
RIN 0648-AI43
Coastal Zone Management Program Regulations
AGENCY: Office of Ocean and Coastal Resource Management (OCRM),
National Ocean Service (NOS), National Oceanic and Atmospheric
Administration (NOAA), Department of Commerce (DOC).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The National Oceanic and Atmospheric Administration (NOAA) is
proposing to revise and consolidate its regulations concerning coastal
zone management (CZM) program development, approval, grants and
evaluation, and remove obsolete rules concerning research and technical
assistance. These regulations implement, in part, the Coastal Zone
Management Act, as amended (CZMA). The purpose of this proposed rule is
to remove outdated provisions and to revise and consolidate remaining
provisions. The intended effect of this proposed rule is to make the
CZM program regulations more concise and easier to use.
DATES: Comments on the proposed rule are invited and will be considered
if submitted on or before April 25, 1996.
ADDRESSES: All comments concerning these proposed regulations should be
mailed to: Clement Lewsey, Coastal Programs Division, Office of Ocean
and Coastal Resource Management, NOAA, N/ORM3, 1305 East-West Highway,
SSMC 4, 11th Floor, Silver Spring, MD 20910.
FOR FURTHER INFORMATION CONTACT:
Roger Eckert, NOAA Office of General Counsel for Ocean Services, at
301-713-2967 (ext. 213), fax: 301-713-4408, e-mail:
[email protected]
SUPPLEMENTARY INFORMATION:
I. Authority
This proposed rule is issued under the authority of the CZMA, 16
U.S.C. 1451 et seq.
II. Background
The CZMA was enacted to encourage and assist the 35 eligible
coastal states and territories to develop and implement CZM programs to
preserve, protect, develop and, where possible, restore or enhance the
resources of the Nation's coasts. In all, 29 coastal states and
territories have chosen to participate in this program, and their
programs have received federal approval. Five states are currently
developing programs for federal approval. Many of the regulations
promulgated when the program began are no longer needed, now that the
program has matured.
In March 1995, President Clinton issued a directive to federal
agencies regarding their responsibilities under his Regulatory Reform
Initiative. This initiative is part of the National Performance Review
and calls for immediate, comprehensive regulatory reform. The President
directed all agencies to review all of their regulations, with an
emphasis on eliminating or modifying those that are obsolete or
otherwise in need of reform. This proposed rule is intended to carry
out the President's directive with respect to the regulations
implementing the Coastal Zone Management program and revises those
regulations as follows:
A. Consolidates Regulations
The proposed rule would consolidate CZM program regulations found
in present 15 CFR parts 923, 927, 928 and 932 into a revised part 923.
This consolidation is expected to make the regulations easier for
coastal states, territories and the public to use.
B. Removes Regulations Restating Statutory Language
The proposed rule would remove those regulations in 15 CFR part 923
that simply restate provisions contained in the Coastal Zone Management
Act. These provisions would be replaced, where appropriate, with
references to the applicable sections of the CZMA. Removal of these
provisions is in accordance with the rules of the Office of the Federal
Register which discourage agencies from restating the language of a law
in a document intended for publication in the Federal Register.
C. Removes Outdated Provisions and Simplifies Remaining Provisions
The proposed rule would remove those regulations in 15 CFR part 923
that are no longer necessary because the CZM program has reached its
maturity, and simplify the remaining provisions. Many of the more
detailed regulatory requirements would be removed. Since part 923
largely addresses requirements for the development and approval of
coastal management programs, many of these changes would not apply to
those states that already have federally approved CZM programs. For the
eligible coastal states that do not yet have approved programs, OCRM
will continue to provide necessary guidance, and actual and timely
notice of appropriate application procedures. In particular, OCRM will
continue to work with the 5 coastal states currently developing
programs in order to ensure that those programs meet the criteria for
federal approval. Finally, the proposed rule would remove 15 CFR part
933 because it implements a portion of the CZMA that was repealed in
1986. OCRM will provide guidance on a corresponding technical
assistance provision that was added to the CZMA in the Coastal Zone Act
Reauthorization Amendments of 1990.
D. Updates Program Change Regulations
The proposed rule would update the program change regulations so
that they more precisely reflect the structure of coastal management
programs. In particular, the four criteria identified at 15 CFR
923.80(d)(1)-(4), by which program changes are assessed, would be
replaced by a reference to the five program approvability areas
identified in part 923: (1) uses subject to management, (2) special
management areas, (3) boundaries, (4) authorities and organization, and
(5) coordination, public involvement and national interest.
While the four criteria were an effort to group the program
approvability areas, not all program changes fit squarely within the
four groups. The proposed rule repeats the headings of subparts B
through F of part 923, and so, tracks the program approvability areas.
In addition, states may refer to these subparts for assistance in their
analysis of a program change. Furthermore, states would no longer be
required to address those program areas that do not apply to their
proposed changes. Rather, the proposal allows states to discuss one or
more of the program areas that would be affected by a change. Thus, the
proposal allows states greater flexibility to provide a more focused
analysis. OCRM anticipates that most program change requests will
continue to be routine program changes. OCRM plans to provide coastal
states and territories with additional program change guidance.
The proposed rule also would add explanatory statements concerning
the addition of any enforceable policies to management programs. These
statements reflect Congress' increased focus on enforceable policies in
the Coastal Zone Act Reauthorization Amendments of 1990. OCRM, federal
agencies, applicants for federal licenses or permits, and often the
state coastal
[[Page 9747]]
programs themselves, cannot always identify the enforceable policies in
a program. OCRM recognizes that events beyond a coastal management
program's control can change the enforceability of a policy.
However, OCRM needs to know just what is being changed at the time
of a program change, and federal agencies and applicants should be
allowed to comment on the enforceable policies submitted for
incorporation.
Finally, the term ``routine program implementation'' would be
changed to the more descriptive term ``routine program change,'' and
existing agency practice that allows for the resubmittal of routine
program change requests would be codified.
III. Miscellaneous Rulemaking Requirements
Executive Order 12372: Intergovernmental Review
This program is subject to Executive Order 12372.
Executive Order 12612: Federalism Assessment
NOAA has concluded that this regulatory action does not have
sufficient federalism implications to warrant the preparation of a
Federalism Assessment under Executive Order 12612.
Executive Order 12866: Regulatory Planning and Review
This regulatory action is not significant for purposes of Executive
Order 12866.
Regulatory Flexibility Act
The Assistant General Counsel for Legislation and Regulation of the
Department of Commerce has certified to the Chief Counsel for Advocacy
of the Small Business Administration that the proposed rule, if
adopted, would not have a significant impact on a substantial number of
small entities because (1) the rule addresses CZM programs of coastal
states and territories, (2) those provisions that would be removed,
because they are outdated or repeat statutory language, are unnecessary
for the development and implementation of CZM programs, and (3) the
revision and consolidation of remaining provisions would impose no
additional burden on small entities. In particular, the update of the
CZM program change regulations, if adopted, would help ensure the
continued approvability of CZM programs. Accordingly, an initial
Regulatory Flexibility Analysis was not prepared.
Paperwork Reduction Act
The proposed rule contains collection-of-information requirements
subject to review and approval by OMB under the Paperwork Reduction Act
(PRA). The collection-of-information requirements contained in this
proposed rule have been approved under OMB Control Number 0648-0119.
The estimated response times for these requirements are 480 hours for
management program approval and 8 hours for program amendments and
routine program changes.
The response estimates shown include the time for reviewing
instructions, searching existing data sources, gathering and
maintaining data needed, and completing and reviewing the collection of
information. Send comments regarding these burden estimates or any
other aspect of the collection of information to the Coastal Programs
Division at the ADDRESSES above, and to OMB at the Office of
Information and Regulatory Affairs, Office of Management and Budget,
Washington, DC. 20503 (Attention: NOAA Desk Officer).
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with a collection of information, subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB Control Number.
National Environmental Policy Act
NOAA has concluded that this regulatory action does not constitute
a major federal action significantly affecting the quality of the human
environment. Therefore, an environmental impact statement is not
required.
List of Subjects
15 CFR Parts 923, 928 and 932
Administrative practice and procedure, Coastal zone, Grant
programs--Natural resources, Reporting and recordkeeping requirements.
15 CFR Part 926
[Reserved]
15 CFR Part 927
Administrative practice and procedure, Coastal zone, Grant
programs--Natural resources.
15 CFR Part 933
Administrative practice and procedure, Coastal zone, Grant
programs--Natural resources, Reporting and recordkeeping requirements,
Research.
Dated: March 1, 1996.
W. Scott Page,
Acting Assistant Administrator for Ocean Services and Coastal Zone
Management.
For the reasons set out in the Preamble, it is proposed to amend 15
CFR Chapter IX as follows:
1. The heading for Part 923 is revised to read as follows:
PART 923--COASTAL ZONE MANAGEMENT PROGRAM REGULATIONS
2. The table of contents for Part 923 is revised to read as
follows:
Subpart A--General
Sec.
923.1 Purpose and scope.
923.2 Definitions.
923.3 General requirements.
Subpart B--Uses Subject to Management
923.10 General.
923.11 Uses subject to management.
923.12 Uses of regional benefit.
923.13 Energy facility planning process.
Subpart C--Special Management Areas
923.20 General.
923.21 Areas of particular concern.
923.22 Areas for preservation or restoration.
923.23 Other areas of particular concern.
923.24 Shorefront access and protection planning.
923.25 Shoreline erosion/mitigation planning.
Subpart D--Boundaries
923.30 General.
923.31 Inland boundary.
923.32 Lakeward or seaward boundary.
923.33 Excluded lands.
923.34 Interstate boundary.
Subpart E--Authorities and Organization
923.40 General.
923.41 Identification of authorities.
923.42 State establishment of criteria and standards for local
implementation--Technique A.
923.43 Direct State land and water use planning and regulation--
Technique B.
923.44 State review on a case-by-case basis of actions affecting
land and water uses subject to the management program--Technique C.
923.45 Air and water pollution control requirements.
923.46 Organizational structure.
923.47 Designated State agency.
923.48 Documentation.
Subpart F--Coordination, Public Involvement and National Interest
923.50 General.
923.51 Federal-State consultation.
923.52 Consideration of the national interest in facilities.
923.53 Federal consistency procedures.
923.54 Mediation.
923.55 Full participation by State and local governments,
interested parties, and the general public.
[[Page 9748]]
923.56 Plan coordination.
923.57 Continuing consultation.
923.58 Public hearings.
Subpart G--Review/Approval Procedures
923.60 Review/approval procedures.
Subpart H--Amendments to and Termination of Approved Management
Programs
923.80 General.
923.81 Requests for amendments.
923.82 Amendment review/approval procedures.
923.83 Mediation of amendments.
923.84 Routine program changes.
Subpart I--Applications for Program Development or Implementation
Grants
923.90 General.
923.91 State responsibility.
923.92 Allocation.
923.93 Eligible implementation costs.
923.94 Application for program development or implementation
grants.
923.95 Approval of applications.
923.96 Grant amendments.
Subpart J--Allocation of Section 306 Program Administration Grants
923.110 Allocation formula.
Subpart K--Coastal Zone Enhancement Grants Program
923.121 General.
923.122 Objectives.
923.123 Definitions.
923.124 Allocation of section 309 funds.
923.125 Criteria for section 309 project selection.
923.126 Pre-application procedures.
923.127 Formal application for financial assistance and application
review and approval procedures.
923.128 Revisions to assessments and strategies.
Subpart L--Review of Performance
923.131 General.
923.132 Definitions.
923.133 Procedure for conducting continuing reviews of approved
State CZM programs.
923.134 Public participation.
923.135 Enforcement.
3. The authority for Part 923 is revised to read as follows:
Authority: 16 U.S.C. 1452 et seq. Sections 923.92 and 923.94 are
also issued under E.O. 12372, July 14, 1982, 3 CFR, 1982 Comp. p.
197, as amended by E.O. 12416, April 8, 1983, 3 CFR, 1983 Comp. p.
186; (31 U.S.C. 6506; 42 U.S.C. 3334).
4. Subpart J consisting of Secs. 923.90 through 923.98 is removed,
and Subparts A through I of Part 923 are revised to read as follows:
Subpart A--General
Sec. 923.1 Purpose and scope.
(a) The regulations in this part set forth the requirements for
State coastal management program approval by the Assistant
Administrator for Ocean Services and Coastal Zone Management pursuant
to the Coastal Zone Management Act of 1972, as amended (hereafter, the
Act); the grant application procedures for program funds; conditions
under which grants may be terminated; and requirements for review of
approved management programs.
(b) Sections 306 and 307 of the Act set forth requirements which
must be fulfilled as a condition of program approval. The specifics of
these requirements are set forth below under the following headings:
General Requirements; Uses Subject to Management; Special Management
Areas; Boundaries; Authorities and Organization; and Coordination,
Public Involvement and National Interest. All relevant sections of the
Act are dealt with under one of these groupings, but not necessarily in
the order in which they appear in the Act.
(c) In summary, the requirements for program approval are that a
State develop a management program that:
(1) Identifies and evaluates those coastal resources recognized in
the Act as requiring management or protection by the State;
(2) Reexamines existing policies or develops new policies to manage
these resources. These policies must be specific, comprehensive, and
enforceable;
(3) Determines specific use and special geographic areas that are
to be subject to the management program, based on the nature of
identified coastal concerns;
(4) Identifies the inland and seaward areas subject to the
management program;
(5) Provides for the consideration of the national interest in the
planning for and siting of facilities that meet more than local
requirements;
(6) Includes sufficient legal authorities and organizational
arrangements to implement the program and to ensure conformance to it.
In arriving at these elements of the management program, States are
obliged to follow an open process which involves providing information
to and considering the interests of the general public, special
interest groups, local governments, and regional, State, interstate,
and Federal agencies;
(7) Provides for public participation in permitting processes,
consistency determinations, and other similar decisions;
(8) Provides a mechanism to ensure that all state agencies will
adhere to the program; and
(9) Contains enforceable policies and mechanisms to implement the
applicable requirements of the Coastal Nonpoint Pollution Control
Program of the state required by section 6217 of the Coastal Zone Act
Reauthorization Amendments of 1990.
Sec. 923.2 Definitions.
(a) The term Act means the Coastal Zone Management Act of 1972, as
amended.
(b) The term Secretary means the Secretary of Commerce and his/her
designee.
(c) The term Assistant Administrator means the Assistant
Administrator for Ocean Services and Coastal Zone Management, National
Oceanic and Atmospheric Administration (NOAA), or designee.
(d)(1) The term relevant Federal agencies means those Federal
agencies with programs, activities, projects, regulatory, financing, or
other assistance responsibilities in the following fields which could
impact or affect a State's coastal zone:
(i) Energy production or transmission,
(ii) Recreation of a more than local nature,
(iii) Transportation,
(iv) Production of food and fiber,
(v) Preservation of life and property,
(vi) National defense,
(vii) Historic, cultural, aesthetic, and conservation values,
(viii) Mineral resources and extraction, and
(ix) Pollution abatement and control.
(2) The following are defined as relevant Federal agencies:
Department of Agriculture; Department of Commerce; Department of
Defense; Department of Education; Department of Energy; Department of
Health and Human Services; Department of Housing and Urban Development;
Department of the Interior; Department of Transportation; Environmental
Protection Agency; Federal Energy Regulatory Commission; General
Services Administration; Nuclear Regulatory Commission; Federal
Emergency Management Agency.
(e) The term Federal agencies principally affected means the same
as ``relevant Federal agencies.'' The Assistant Administrator may
include other agencies for purposes of reviewing the management program
and environmental impact statement.
(f) The term Coastal State means a State of the United States in,
or bordering on, the Atlantic, Pacific, or Arctic Ocean, the Gulf of
Mexico, Long Island Sound, or one or more of the Great Lakes. Pursuant
to section 304(3) of the Act, the term also includes Puerto Rico, the
Virgin Islands, Guam, and American Samoa. Pursuant to section
[[Page 9749]]
703 of the Covenant to Establish a Commonwealth of the Northern Mariana
Islands in Political Union with the United States of America, the term
also includes the Northern Marianas.
(g) The term management program includes, but is not limited to, a
comprehensive statement in words, maps, illustrations, or other media
of communication, including an articulation of enforceable policies and
citation of authorities providing this enforceability, prepared and
adopted by the State in accordance with the provisions of this Act and
this part, setting forth objectives, policies, and standards to guide
public and private uses of lands and waters in the coastal zone.
(h) The following terms, as used in these regulations, have the
same definition as provided in section 304 of the Act:
(1) Coastal zone;
(2) Coastal waters;
(3) Enforceable policy;
(4) Estuary;
(5) Land use; and
(6) Water use.
(i) The term grant means a financial assistance instrument and
refers to both grants and cooperative agreements.
Sec. 923.3 General requirements.
(a) The management program must be developed and adopted in
accordance with the requirements of the Act and this part, after
notice, and the opportunity for full participation by relevant federal
and state agencies, local governments, regional organizations, port
authorities, and other interested parties and persons, and be adequate
to carry out the purposes of the Act and be consistent with the
national policy set forth in section 303 of the Act.
(b) The management program must provide for the management of those
land and water uses having a direct and significant impact on coastal
waters and those geographic areas which are likely to be affected by or
vulnerable to sea level rise. The program must include provisions to
assure the appropriate protection of those significant resources and
areas, such as wetlands, beaches and dunes, and barrier islands, that
make the state's coastal zone a unique, vulnerable, or valuable area.
(c) The management program must contain a broad class of policies
for each of the following areas: resource protection, management of
coastal development, and simplification of governmental processes.
These three broad classes must include specific policies that provide
the framework for the exercise of various management techniques and
authorities governing coastal resources, uses, and areas. The three
classes must include policies that address uses of or impacts on
wetlands and floodplains within the State's coastal zone, and that
minimize the destruction, loss or degradation of wetlands and preserve
and enhance their natural values in accordance with the purposes of
Executive Order 11990, pertaining to wetlands. These policies also must
reduce risks of flood loss, minimize the impact of floods on human
safety, health and welfare, and preserve the natural, beneficial values
served by floodplains, in accordance with the purpose of Executive
Order 11988, pertaining to floodplains.
(d) The policies in the program must be appropriate to the nature
and degree of management needed for uses, areas, and resources
identified as subject to the program.
(e) The policies, standards, objectives, criteria, and procedures
by which program decisions will be made must provide:
(1) A clear understanding of the content of the program, especially
in identifying who will be affected by the program and how, and
(2) A clear sense of direction and predictability for
decisionmakers who must take actions pursuant to or consistent with the
management program.
Subpart B--Uses Subject to Management
Sec. 923.10 General.
This subpart sets forth the requirements for management program
approvability with respect to land and water uses which, because of
their direct and significant impacts on coastal waters or those
geographic areas likely to be affected by or vulnerable to sea level
rise, are subject to the terms of the management program. This subpart
deals in full with the following subsections of the Act: 306(d)(1)(B),
Uses Subject to the Management Program, 306(d)(2)(H), Energy Facility
Planning, and 306(d)(12)(B), Uses of Regional Benefit.
Sec. 923.11 Uses subject to management.
(a) (1) The management program for each coastal state must include
a definition of what shall constitute permissible land uses and water
uses within the coastal zone which have a direct and significant impact
on the coastal waters.
(2) The management program must identify those land and water uses
that will be subject to the terms of the management program. These uses
shall be those with direct and significant impacts on coastal waters or
on geographic areas likely to be affected by or vulnerable to sea level
rise.
(3) The management program must explain how those uses identified
in paragraph (a)(2) of this section will be managed. The management
program must also contain those enforceable policies, legal
authorities, performance standards or other techniques or procedures
that will govern whether and how uses will be allowed, conditioned,
modified, encouraged or prohibited.
(b) In identifying uses and their appropriate management, a State
should analyze the quality, location, distribution and demand for the
natural and man-made resources of their coastal zone, and should
consider potential individual and cumulative impacts of uses on coastal
waters.
(c) States should utilize the following types of analyses:
(1) Capability and suitability of resources to support existing or
projected uses;
(2) Environmental impacts on coastal resources;
(3) Compatibility of various uses with adjacent uses or resources;
(4) Evaluation of inland and other location alternatives; and
(5) Water dependency of various uses and other social and economic
considerations.
(d) Examination of the following factors is suggested:
(1) Air and water quality;
(2) Historic, cultural and esthetic resources where coastal
development is likely to affect these resources;
(3) Open space or recreational uses of the shoreline where
increased access to the shorefront is a particularly important concern;
(4) Floral and faunal communities where loss of living marine
resources or threats to endangered or threatened coastal species are
particularly important concerns.
(5) Information on the impacts of global warming and resultant sea
level rise on natural resources such as beaches, dunes, estuaries, and
wetlands, on salinization of drinking water supplies, and on
properties, infrastructure and public works.
Sec. 923.12 Uses of regional benefit.
The management program must contain a method of assuring that local
land use and water use regulations within the coastal zone do not
unreasonably restrict or exclude land uses and water uses of regional
benefit. To this end, the management program must:
(1) Identify what constitutes uses of regional benefit; and
[[Page 9750]]
(2) Identify and utilize any one or a combination of methods,
consistent with the control techniques employed by the State, to assure
local land and water use regulations do not unreasonably restrict or
exclude uses of regional benefit.
Sec. 923.13 Energy facility planning process.
(a) The management program must contain a planning process for
energy facilities likely to be located in or which may significantly
affect, the coastal zone, including a process for anticipating the
management of the impacts resulting from such facilities. (See
subsection 304(5) of the Act.) This process must contain the following
elements:
(1) Identification of energy facilities which are likely to locate
in, or which may significantly affect, a State's coastal zone;
(2) Procedures for assessing the suitability of sites for such
facilities designed to evaluate, to the extent practicable, the costs
and benefits of proposed and alternative sites in terms of State and
national interests as well as local concerns;
(3) Articulation and identification of enforceable State policies,
authorities and techniques for managing energy facilities and their
impacts; and
(4) Identification of how interested and affected public and
private parties will be involved in the planning process.
Subpart C--Special Management Areas
Sec. 923.20 General.
(a) This subpart sets forth the requirements for management program
approvability with respect to areas of particular concern because of
their coastal-related values or characteristics, or because they may
face pressures which require detailed attention beyond the general
planning and regulatory system which is part of the management program.
As a result, these areas require special management attention within
the terms of the State's overall coastal program. This special
management may include regulatory or permit requirements applicable
only to the area of particular concern. It also may include increased
intergovernmental coordination, technical, assistance, enhanced public
expenditures, or additional public services and maintenance to a
designated area. This subpart deals with the following subsections of
the Act: 306(d)(2)(C)--Geographic Areas of Particular Concern;
306(d)(2)(E)--Guidelines on Priorities of Uses; 306(d)(2)(G)--
Shorefront Access and Protection Planning; 306(d)(2)(I)--Shoreline
Erosion/Mitigation Planning; and 306(d)(9)--Areas for Preservation and
Restoration.
(b) The importance of designating areas of particular concern for
management purposes and the number and type of areas that should be
designated is directly related to the degree of comprehensive controls
applied throughout a State's coastal zone. Where a State's general
coastal management policies and authorities address state and national
concerns comprehensively and are specific with respect to particular
resources and uses, relatively less emphasis need be placed on
designation of areas of particular concern. Where these policies are
limited and non-specific, greater emphasis should be placed on areas of
particular concern to assure effective management and an adequate
degree of program specificity.
Sec. 923.21 Areas of particular concern.
(a) The management program must include an inventory and
designation of areas of particular concern within the coastal zone, on
a generic and/or site-specific basis, and broad guidelines on
priorities of uses in particular areas, including specifically those
uses of lowest priority.
(b) In developing criteria for inventorying and designating areas
of particular concern. States must consider whether the following
represent areas of concern requiring special management:
(1) Areas of unique, scarce, fragile or vulnerable natural habitat;
unique or fragile, physical, figuration (as, for example, Niagara
Falls); historical significance, cultural value or scenic importance
(including resources on or determined to be eligible for the National
Register of Historic Places.);
(2) Areas of high natural productivity or essential habitat for
living resources, including fish, wildlife, and endangered species and
the various trophic levels in the food web critical to their well-
being;
(3) Areas of substantial recreational value and/or opportunity;
(4) Areas where developments and facilities are dependent upon the
utilization of, or access to, coastal waters;
(5) Areas of unique hydrologic, geologic or topographic
significance for industrial or commercial development or for dredge
spoil disposal;
(6) Area or urban concentration where shoreline utilization and
water uses are highly competitive;
(7) Areas where, if development were permitted, it might be subject
to significant hazard due to storms, slides, floods, erosion,
settlement, salt water intrusion, and sea level rise;
(8) Areas needed to protect, maintain or replenish coastal lands or
resources including coastal flood plains, aquifers and their recharge
areas, estuaries, sand dunes, coral and other reefs, beaches, offshore
sand deposits and mangrove stands.
(c) Where states will involve local governments, other state
agencies, federal agencies and/or the public in the process of
designating areas of particular concern, States must provide guidelines
to those who will be involved in the designation process. These
guidelines shall contain the purposes, criteria, and procedures for
nominating areas of particular concern.
(d) In identifying areas of concern by location (if site specific)
or category of coastal resources (if generic), the program must contain
sufficient detail to enable affected landowners, governmental entities
and the public to determine with reasonable certainty whether a given
area is designated.
(e) In identifying areas of concern, the program must describe the
nature of the concern and the basis on which designations were made.
(f) The management program must describe how the management program
addresses and resolves the concerns for which areas are designated; and
(g) The management program must provide guidelines regarding
priorities of uses in these areas, including guidelines on uses of
lowest priority.
Sec. 923.22 Areas for preservation or restoration.
The management program must include procedures whereby specific
areas may be designated for the purpose of preserving or restoring them
for their conservation, recreational, ecological, historical or
esthetic values, and the criteria for such designations.
Sec. 923.23 Other areas of particular concern.
(a) The management program may, but is not required to, designate
specific areas known to require additional or special management, but
for which additional management techniques have not been developed or
necessary authorities have not been established at the time of program
approval. If a management program includes such designations, the basis
for designation must be clearly stated, and a reasonable time frame and
procedures must be set forth for developing and implementing
appropriate management techniques. These procedures must provide for
the development of those items required in Sec. 923.21. The management
program must identify an agency (or agencies)
[[Page 9751]]
capable of formulating the necessary management policies and
techniques.
(b) The management program must meet the requirements of
Sec. 923.22 for containing procedures for designating areas for
preservation or restoration. The management program may include
procedures and criteria for designating areas of particular concern for
other than preservation or restoration purposes after program approval.
Sec. 923.24 Shorefront access and protection planning.
(a) The management program must include a definition of the term
``beach'' and a planning process for the protection of, and access to,
public beaches and other public coastal areas of environmental,
recreational, historical, esthetic, ecological or cultural value.
(b) The basic purpose in focusing special planning attention on
shorefront access and protection is to provide public beaches and other
public coastal areas of environmental, recreational, historic,
esthetic, ecological or cultural value with special management
attention within the purview of the State's management program. This
special management attention may be achieved by designating public
shorefront areas requiring additional access or protection as areas of
particular concern pursuant to Sec. 923.21 or areas for preservation or
restoration pursuant to Sec. 923.22.
(c) The management program must contain a procedure for assessing
public beaches and other public areas, including State owned lands,
tidelands and bottom lands, which require access or protection, and a
description of appropriate types of access and protection.
(d) The management program must contain a definition of the term
``beach'' that is the broadest definition allowable under state law or
constitutional provisions, and an identification of public areas
meeting that definition.
(e) The management program must contain an identification and
description of enforceable policies, legal authorities, funding
programs and other techniques that will be used to provide such
shorefront access and protection that the State's planning process
indicates is necessary.
Sec. 923.25 Shoreline erosion/mitigation planning.
(a) The management program must include a planning process for
assessing the effects of, and studying and evaluating ways to control,
or lessen the impact of, shoreline erosion, including potential impacts
of sea level rise, and to restore areas adversely affected by such
erosion.
(b) The basic purpose in developing this planning process is to
give special attention to erosion issues. This special management
attention may be achieved by designating erosion areas as areas of
particular concern pursuant to Sec. 923.21 or as areas for preservation
or restoration pursuant to Sec. 923.22.
(c) The management program must include an identification and
description of enforceable policies, legal authorities, funding
techniques and other techniques that will be used to manage the effects
of erosion, including potential impacts of sea level rise, as the
state's planning process indicates is necessary.
Subpart D--Boundaries
Sec. 923.30 General.
This subpart sets forth the requirements for management program
approvability with respect to boundaries of the coastal zone. There are
four elements to a State's boundary: the inland boundary, the seaward
boundary, areas excluded from the boundary, and, in most cases,
interstate boundaries. Specific requirements with respect to procedures
for determining and identifying these boundary elements are discussed
in the sections of this subpart that follow.
Sec. 923.31 Inland boundary.
(a) The inland boundary of a State's coastal zone must include:
(1) Those areas the management of which is necessary to control
uses which have direct and significant impacts on coastal waters, or
are likely to be affected by or vulnerable to sea level rise, pursuant
to section 923.11 of these regulations.
(2) Those special management areas identified pursuant to
Sec. 923.21;
(3) Waters under saline influence--Waters containing a significant
quantity of seawater, as defined by and uniformly applied by the State;
(4) Salt marshes and wetlands--Areas subject to regular inundation
of tidal salt (or Great Lakes) waters which contain marsh flora typical
of the region;
(5) Beaches--The area affected by wave action directly from the
sea. Examples are sandy beaches and rocky areas usually to the
vegetation line;
(6) Transitional and intertidal areas--Areas subject to coastal
storm surge, and areas containing vegetation that is salt tolerant and
survives because of conditions associated with proximity to coastal
waters. Transitional and intertidal areas also include dunes and rocky
shores to the point of upland vegetation;
(7) Islands--Bodies of land surrounded by water on all sides.
Islands must be included in their entirety, except when uses of
interior portions of islands do not cause direct and significant
impacts.
(8) The inland boundary must be presented in a manner that is clear
and exact enough to permit determination of whether property or an
activity is located within the management area. States must be able to
advise interested parties whether they are subject to the terms of the
management program within, at a maximum, 30 days of receipt of an
inquiry. An inland coastal zone boundary defined in terms of political
jurisdiction (e.g., county, township or municipal lines) cultural
features (e.g., highways, railroads), planning areas (e.g., regional
agency jurisdictions, census enumeration districts), or a uniform
setback line is acceptable so long as it includes the areas identified.
(b) The inland boundary of a State's coastal zone may include:
(1) Watersheds--A state may determine some uses within entire
watersheds which have direct and significant impact on coastal waters
or are likely to be affected by or vulnerable to sea level rise. In
such cases it may be appropriate to define the coastal zone as
including these watersheds.
(2) Areas of tidal influence that extend further inland than waters
under saline influence; particularly in estuaries, deltas and rivers
where uses inland could have direct and significant impacts on coastal
waters or areas that are likely to be affected by or vulnerable to sea
level rise.
(3) Indian lands not held in trust by the Federal Government.
(c) In many urban areas or where the shoreline has been modified
extensively, natural system relationships between land and water may be
extremely difficult, if not, impossible, to define in terms of direct
and significant impacts. Two activities that States should consider as
causing direct and significant impacts on coastal waters in urban areas
are sewage discharges and urban runoff. In addition, States should
consider dependency of uses on water access and visual relationships as
factors appropriate for the determination of the inland boundary in
highly urbanized areas.
Sec. 923.32 Lakeward or seaward boundary.
(a) (1) For states adjoining the Great Lakes, the lakeward boundary
of the State's coastal zone is the international
[[Page 9752]]
boundary with Canada or the boundaries with adjacent states. For states
adjacent to the Atlantic or Pacific Ocean, or the Gulf of Mexico, the
seaward boundary is the outer limit of state title and ownership under
the Submerged Lands Act (48 U.S.C. 1301 et seq.), the Act of March 2,
1917 (48 U.S.C. 749), the Covenant to Establish a Commonwealth of the
Northern Mariana Islands in Political Union with the United States of
America, as approved by the Act of March 24, 1976 (48 U.S.C. 1681 note)
or section 1 of the Act of November 10, 1963, (48 U.S.C. 1705, as
applicable).
(2) The requirement for defining the seaward boundary of a State's
coastal zone can be met by a simple restatement of the limits defined
in this section, unless there are water areas which require a more
exact delineation because of site specific policies associated with
these areas. Where States have site specific policies for particular
water areas, these shall be mapped, described or referenced so that
their location can be determined reasonably easily by any party
affected by the policies.
(b) The seaward limits, as defined in this section, are for
purposes of this program only and represent the area within which the
State's management program may be authorized and financed. These limits
are irrespective of any other claims States may have by virtue of other
laws.
Sec. 923.33 Excluded lands.
(a) The boundary of a State's coastal zone must exclude lands
owned, leased, held in trust or whose use is otherwise by law subject
solely to the discretion of the Federal Government, its officers or
agents. To meet this requirement, the program must describe, list or
map lands or types of lands owned, leased, held in trust or otherwise
used solely by Federal agencies.
(b) The exclusion of Federal lands does not remove Federal agencies
from the obligation of complying with the consistency provisions of
section 307 of the Act when Federal actions on these excluded lands
have spillover impacts that affect any land or water use or natural
resource of the coastal zone within the purview of a state's management
program. In excluding Federal lands from a State's coastal zone for the
purposes of this Act, a State does not impair any rights or authorities
that it may have over Federal lands that exist separate from this
program.
Sec. 923.34 Interstate boundary.
States must document that there has been consultation and
coordination with adjoining coastal States regarding delineation of any
adjacent inland and lateral seaward boundary.
Subpart E--Authorities and Organization
Sec. 923.40 General.
(a) This subpart sets forth the requirements for management program
approvability with respect to authorities and organization. The
authorities and organizational structure on which a State will rely to
administer its management program are the crucial underpinnings for
enforcing the policies which guide the management of the uses and areas
identified in its management program. There is a direct relationship
between the adequacy of authorities and the adequacy of the overall
program. The authorities need to be broad enough in both geographic
scope and subject matter to ensure implementation of the State's
enforceable policies. These enforceable policies must be sufficiently
comprehensive and specific to regulate land and water uses, control
development, and resolve conflicts among competing uses in order to
assure wise use of the coastal zone. (Issues relating to the adequate
scope of the program are dealt with in Sec. 923.3.)
(b) The entity or entities which will exercise the program's
authorities is a matter of State determination. They may be the state
agency designated pursuant to section 306(d)(6) of the Act, other state
agencies, regional or interstate bodies, and local governments. The
major approval criterion is a determination that such entity or
entities are required to exercise their authorities in conformance with
the policies of the management program. Accordingly, the essential
requirement is that the State demonstrate that there is a means of
ensuring such compliance. This demonstration will be in the context of
one or a combination of the three control techniques specified in
section 306(d)(11) of the Act. The requirements related to section
306(d)(12) of the Act are described in Secs. 923.42 through 923.44 of
this subchapter.
(c) In determining the adequacy of the authorities and organization
of a state's programs, the Assistant Administrator will review and
evaluate authorities and organizational arrangements in light of the
requirements of this subpart and the finding of section 302(h) of the
Act.
(d) The authorities requirements of the Act dealt with in this
subpart are those contained in subsections 306(d)(2)(D)-Means of
Control; 306(d)(10)-Authorities; 306(d)(10)(A)-Control Development and
Resolve Conflicts; 306(d)(10)(B)-Powers of Acquisition; 306(d)(11)-
Techniques of Control; and 307(f)-Air and Water Quality Control
Requirements. The organization requirements of the Act dealt with in
this subpart are those contained in sections 306(d)(2)(F)-
Organizational Structure; 306(d)(6)-Designated State Agency; and
306(d)(7)-Organization.
Sec. 923.41 Identification of authorities.
(a) (1) The management program must identify the means by which the
state proposes to exert control over the permissible land uses and
water uses within the coastal zone which have a direct and significant
impact on the coastal waters, including a listing of relevant state
constitutional provisions, laws, regulations, and judicial decisions.
These are the means by which the state will enforce its coastal
management policies. (See section 304(6a) of the Act.)
(2) The state chosen agency or agencies (including local
governments, area-wide agencies, regional agencies, or interstate
agencies) must have the authority for the management of the coastal
zone. Such authority includes the following powers:
(i) To administer land use and water use regulations to control
development to ensure compliance with the management program, and to
resolve conflicts among competing uses; and
(ii) To acquire fee simple and less than fee simple interests in
land, waters, and other property through condemnation or other means
when necessary to achieve conformance with the management program.
(b) In order to meet these requirements, the program must identify
relevant state constitutional provisions, statutes, regulations, case
law and such other legal instruments (including executive orders and
interagency agreements) that will be used to carry out the state's
management program, including the authorities pursuant to sections
306(d)(10) and 306(d)(11) of the Act which require a state to have the
ability to:
(1) Administer land and water use regulations in conformance with
the policies of the management program;
(2) Control such development as is necessary to ensure compliance
with the management program;
(3) Resolve conflicts among competing uses; and
(4) Acquire appropriate interest in lands, waters or other property
as necessary to achieve management objectives. Where acquisition will
be a necessary technique for accomplishing
[[Page 9753]]
particular program policies and objectives, the management program must
indicate for what purpose acquisition will be used (i.e., what policies
or objectives will be accomplished); the type of acquisition (e.g., fee
simple, purchase of easements, condemnation); and what agency (or
agencies) of government have the authority for the specified type of
acquisition.
Sec. 923.42 State establishment of criteria and standards for local
implementation--Technique A.
(a) The management program must provide for any one or a
combination of general techniques specified in subsection 306(d)(11) of
the Act for control of land uses and water uses within the coastal
zone. The first such control technique, at subsection 306(d)(11)(A) of
the Act, is state establishment of criteria and standards for local
implementation, subject to administrative review and enforcement
(control technique A).
(b) There are 5 principal requirements that control technique A
must embody in order to be approved:
(1) The State must have developed and have in effect at the time of
program approval enforceable policies that meet the requirements of
Sec. 923.3. These policies must serve as the standards and criteria for
local program development or the State must have separate standards and
criteria, related to these enforceable policies, that will guide local
program development.
(2) During the period while local programs are being developed, a
State must have sufficient authority to assure that land and water use
decisions subject to the management program will comply with the
program's enforceable policies. The adequacy of these authorities will
be judged on the same basis as specified for direct State controls or
case-by-case reviews.
(3) A State must be able to ensure that coastal programs will be
developed pursuant to the State's standards and criteria, or failing
this, that the management program can be implemented directly by the
State. This requirement can be met if a State can exercise any one of
the following techniques:
(i) Direct State enforcement of its standards and criteria in which
case a State would need to meet the requirements of this section which
address the direct State control technique;
(ii) Preparation of a local program by a State agency which the
local government then would implement. To use this technique the State
must have statutory authority to prepare and adopt a program for a
local government, and a mechanism by which the State can cause the
local government to enforce the State-created program. Where the
mechanism to assure local enforcement will be judicial relief, the
program must include the authority under which judicial relief can be
sought;
(iii) State preparation and enforcement of a program on behalf of a
local government. Here the State must have the authority to:
(A) Prepare and adopt a plan, regulations, and ordinances for the
local government and
(B) Enforce such plans, regulations and ordinances;
(iv) State review of local government actions on a case-by-case
basis or on appeal, and prevention of actions inconsistent with the
standards and criteria. Under this technique, when a local government
fails to adopt an approvable program, the State must have the ability
to review activities in the coastal zone subject to the management
program and the power to prohibit, modify or condition those activities
based on the policies, standards and criteria of the management
program; or
(v) If a locality fails to adopt a management program, the State
may utilize a procedure whereby the responsibility for preparing a
program shifts to an intermediate level government, such as a county.
If this intermediate level of government fails to produce a program,
then the State must have the ability to take one of the actions
described above. This alternative cannot be used where the intermediate
level of government lacks the legal authority to adopt and implement
regulations necessary to implement State policies, standards and
criteria.
(4) A State must have a procedure whereby it reviews and certifies
the local program's compliance with State standards and criteria. This
procedure must include provisions for:
(i) Opportunity for the public and governmental entities (including
Federal agencies) to participate in the development of local programs;
and
(ii) Opportunity for the public and governmental entities
(including Federal agencies) to make their views known (through public
hearings or other means) to the State agency prior to approval of local
programs; and
(iii) Review by the State of the adequacy of local programs
consideration of facilities identified in a State's management program
in which there is a national interest.
(5) A State must be able to assure implementation and enforcement
of a local program once approved. To accomplish this a State must:
(i) Establish a monitoring system which defines what constitutes
and detects patterns of non-compliance. In the case of uses of regional
benefit and facilities in which there is a national interest, the
monitoring system must be capable of detecting single instances of
local actions affecting such uses or facilities in a manner contrary to
the management program.
(ii) Be capable of assuring compliance when a pattern of deviation
is detected or when a facility involving identified national interests
or a use of regional benefit is affected in a manner contrary to the
program's policies. When State action is required because of failure by
a local government to enforce its program, the State must be able to do
one or a combination of the following:
(A) Directly enforce the entire local program;
(B) Directly enforce that portion of the local program that is
being enforced improperly. State intervention would be necessary only
in those local government activities that are violating the policies,
standards or criteria.
(C) Seek judicial relief against local government for failure to
properly enforce;
(D) Review local government actions on a case-by-case basis or on
appeal and have the power to prevent those actions inconsistent with
the policies and standards.
(E) Provide a procedure whereby the responsibility for enforcing a
program shifts to an intermediate level of government, assuming
statutory authority exists to enable the immediate of government to
assume this responsibility.
Sec. 923.43 Direct State land and water use planning and regulation--
Technique B.
(a) The management program must provide for any one or a
combination of general techniques specified in subsection 306(d)(11) of
the Act for control of land and water uses within the coastal zone. The
second such control technique, at subsection 306(d)(11)(B) of the Act,
is direct state land and water use planning and regulation (control
technique B).
(b) To have control technique B approved, the State must have the
requisite direct authority to plan and regulate land and water uses
subject to the management program. This authority can take the form of:
(1) Comprehensive legislation--A single piece of comprehensive
legislation specific to coastal
[[Page 9754]]
management and the requirements of this Act.
(2) Networking--The utilization of authorities which are compatible
with and applied on the basis of coastal management policies developed
pursuant to Sec. 923.3.
(c) In order to apply the networking concept, the State must:
(1) Demonstrate that, taken together, existing authorities can and
will be used to implement the full range of policies and management
techniques identified as necessary for coastal management purposes; and
(2) Bind each party which exercises statutory authority that is
part of the management program to conformance with relevant enforceable
policies and management techniques. Parties may be bound to conformance
through an executive order, administrative directive or a memorandum of
understanding provided that:
(i) The management program authorities provide grounds for taking
action to ensure compliance of networked agencies with the program. It
will be sufficient if any of the following can act to ensure
compliance: The state agency designated pursuant to subsection
306(d)(6) of the Act, the state's Attorney General, another state
agency, a local government, or a citizen.
(ii) The executive order, administrative directive or memorandum of
understanding establishes conformance requirements of other State
agency activities or authorities to management program policies. A
gubernatorial executive order will be acceptable if networked State
agency heads are directly responsible to the Governor.
(3) Where networked State agencies can enforce the management
program policies at the time of section 306 approval without first
having to revise their operating rules and regulations, then any
proposed revisions to such rules and regulations which would enhance or
facilitate implementation need not be accomplished prior to program
approval. Where State agencies cannot enforce coastal policies without
first revising their rules and regulations, then these revisions must
be made prior to approval of the State's program by the Assistant
Administrator.
Sec. 923.44 State review on a case-by-case basis of actions affecting
land and water uses subject to the management program-Technique C.
(a) The management program must provide for any one or a
combination of general techniques specified in subsection 306(d)(11) of
the Act for control of land and water uses within the coastal zone. The
third such control technique, at subsection 306(d)(11)(C) of the Act,
is state administrative review for consistency with the management
program of all development plans, projects, or land and water use
regulations, including exceptions and variances thereto, proposed by
any state or local authority or private developer, with power to
approve or disapprove after public notice and an opportunity for
hearings (control technique C).
(b) Under case-by-case review, States have the power to review
individual development plans, projects or land and water use
regulations (including variances and exceptions thereto) proposed by
any State or local authority or private developer which have been
identified in the management program as being subject to review for
consistency with the management program. This control technique
requires the greatest degree of policy specificity because compliance
with the program will not require any prior actions on the part of
anyone affected by the program. Specificity also is needed to avoid
challenges that decisions (made pursuant to the management program) are
unfounded, arbitrary or capricious.
(c) To have control technique C approved, a State must:
(1) Identify the plans, projects or regulations subject to review,
based on their significance in terms of impacts on coastal resources,
potential for incompatibility with the State's coastal management
program, and having greater than local significance;
(2) Identify the State agency that will conduct this review;
(3) Include the criteria by which identified plans, projects and
regulations will be approved or disapproved;
(4) Have the power to approve or disapprove identified plans,
projects or regulations that are inconsistent with the management
program, or the power to seek court review thereof; and
(5) Provide public notice of reviews and the opportunity for public
hearing prior to rendering a decision on each case-by-case review.
Sec. 923.45 Air and water pollution control requirements.
The program must incorporate, by reference or otherwise, all
requirements established by the Federal Water Pollution Control Act, as
amended (Clean Water Act of CWA), or the Clean Air Act, as amended
(CAA), or established by the Federal Government or by any state or
local government pursuant to such Acts. Such requirements must be the
water pollution control and air pollution control requirements
applicable to such program. Incorporation of the air and water quality
requirements pursuant to the CWA and CAA should involve their
consideration during program development, especially with respect to
use determinations and designation of areas for special management. In
addition, this incorporation will prove to be more meaningful if close
coordination and working relationships between the State agency and the
air and water quality agencies are developed and maintained throughout
the program development process and after program approval.
Sec. 923.46 Organizational structure.
The State must be organized to implement the management program.
The management program must describe the organizational structure that
will be used to implement and administer the management program
including a discussion of those state and other agencies, including
local governments, that will have responsibility for administering,
enforcing and/or monitoring those authorities or techniques required
pursuant to the following subsections of the Act: 306(d)(3)(B);
306(d)(10); 306(d)(10) (A) and (B); 306(d) (11) and (12); and 307(f).
The management program must also describe the relationship of these
administering agencies to the state agency designated pursuant to
subsection 306(d)(6) of the Act.
Sec. 923.47 Designated State agency.
(a) For program approval, the Governor of the state must designate
a single state agency to receive and administer the grants for
implementing the management program.
(1) This entity must have the fiscal and legal capability to accept
and administer grant funds, to make contracts or other arrangements
(such as passthrough grants) with participating agencies for the
purpose of carrying out specific management tasks and to account for
the expenditure of the implementation funds of any recipient of such
monies, and
(2) This entity must have the administrative capability to monitor
and evaluate the management of the State's coastal resources by the
various agencies and/or local governments with specified
responsibilities under the management program (irrespective of whether
such entities receive section 306 funds); to make periodic reports to
the Office of Ocean and Coastal Resource Management (OCRM), the
Governor, or the State legislature, as appropriate, regarding the
performance of all agencies involved in the program.
[[Page 9755]]
The entity also must be capable of presenting evidence of adherence to
the management program or justification for deviation as part of the
review by OCRM of State performance required by section 312 of the Act.
(b) (1) The 306 agency designation is designed to establish a
single point of accountability for prudent use of administrative funds
in the furtherance of the management and for monitoring of management
activities. Designation does not imply that this single agency need be
a ``super agency'' or the principal implementation vehicle. It is,
however, the focal point for proper administration and evaluation of
the State's program and the entity to which OCRM will look when
monitoring and reevaluating a State's program during program
implementation.
(2) The requirement for the single designated agency should not be
viewed as confining or otherwise limiting the role and responsibilities
which may be assigned to this agency. It is up to the State to decide
in what manner and to what extent the designated State agency will be
involved in actual program implementation or enforcement. In
determining the extent to which this agency should be involved in
program implementation or enforcement, specific factors should be
considered, such as the manner in which local and regional authorities
are involved in program implementation, the administrative structure of
the State, the authorities to be relied upon the agencies administering
such authorities. Because the designated State agency may be viewed as
the best vehicle for increasing the unity and efficiency of a
management program, the State may want to consider the following in
selecting which agency to designate:
(i) Whether the designated State entity has a legislative mandate
to coordinate other State or local programs, plans and/or policies
within the coastal zone;
(ii) To what extent linkages already exist between the entity,
other agencies, and local governments;
(iii) To what extent management or regulatory authorities affecting
the coastal zone presently are administered by the agency; and
(iv) Whether the agency is equipped to handle monitoring,
evaluation and enforcement responsibilities.
Sec. 923.48 Documentation.
A transmittal letter signed by the Governor is required for the
submission of a management program for federal approval. The letter
must state that the Governor:
(a) Has reviewed and approved as State policy, the management
program, and any changes thereto, submitted for the approval of the
Assistant Administrator.
(b) Has designated a single State agency to receive and administer
implementation grants;
(c) Attests to the fact that the State has the authorities
necessary to implement the management program; and
(d) Attests to the fact that the State is organized to implement
the management program.
Subpart F--Coordination, Public Involvement and National Interest
Sec. 923.50 General.
(a) Coordination with governmental agencies having interests and
responsibilities affecting the coastal zone, and involvement of
interest groups as well as the general public is essential to the
development and administration of State coastal management programs.
The coordination requirements of this subpart are intended to achieve a
proper balancing of diverse interests in the coastal zone. The policies
of section 303 of the Act require that there be a balancing of varying,
sometimes conflicting, interests, including:
(1) The preservation, protection, development and, where possible,
the restoration or enhancement of coastal resources;
(2) The achievement of wise use of coastal land and water resources
with full consideration for ecological, cultural, historic, and
aesthetic values and needs for compatible economic development;
(3) The involvement of the public, of Federal, state and local
governments and of regional agencies in the development and
implementation of coastal management programs;
(4) The management of coastal development to improve, safeguard,
and restore coastal water quality; and
(5) The study and development of plans for addressing the adverse
effects of land subsidence and sea level rise.
(b) In order to be meaningful, coordination with and participation
by various units and levels of government including regional
commissions, interest groups, and the general public should begin early
in the process of program development and should continue throughout on
a timely basis to assure that such efforts will result in substantive
inputs into a State's management program. State efforts should be
devoted not only to obtaining information necessary for developing the
management program but also to obtaining reactions and recommendations
regarding the content of the management program and to responding to
concerns by interested parties. The requirements for intergovernmental
cooperation and public participation continue after program approval.
(c) This subpart deals with requirements for coordination with
governmental entities, interest groups and the general public to assure
that their interests are fully expressed and considered during the
program development process and that procedures are created to insure
continued consideration of their views during program implementation.
In addition, this subpart deals with mediation procedures for serious
disagreements between States and Federal agencies that occur during
program development and implementation. This subpart addresses the
requirements of the following subsections of the Act: 306(d)(1)--
Opportunity for Full Participation; 306(d)(3)(A)--Plan Coordination;
306(d)(3)(B)--Continued State-Local Consultation; 306(d)(4)--Public
Hearings; 306(d)(8)--Consideration of the National Interest in
Facilities; 307(b)--Federal Consultation; and 307(h)--Mediation.
Sec. 923.51 Federal-State consultation.
(a) The management program must be developed and adopted with the
opportunity of full participation by relevant Federal agencies and with
adequate consideration of the views of Federal agencies principally
affected by such program.
(b) By providing relevant Federal agencies with the opportunity for
full participation during program development and for adequately
considering the views of such agencies, States can effectuate the
Federal consistency provisions of subsections 307 (c) and (d) of the
Act once their programs are approved. (See 15 CFR part 930 for a full
discussion of the Federal consistency provisions of the Act.)
(c) In addition to the consideration of relevant Federal agency
views required during program development, Federal agencies have the
opportunity to provide further comment during the program review and
approval process. (See subpart G for details on this process.)
Moreover, in the event of a serious disagreement between a relevant
Federal agency and designated State agency during program development
or during program implementation, the mediation provisions of
subsection 307(h) of the Act are available. (See Sec. 923.54 for
details on mediation.)
[[Page 9756]]
(d) In order to provide an opportunity for participation by
relevant Federal agencies and give adequate consideration to their
views, each state must:
(i) Contact each relevant Federal Agency listed in Sec. 923.2(d)
and such other Federal agencies as may be relevant, owing to a State's
particular circumstances, early in the development of its management
program. The purpose of such contact is to develop mutual arrangements
or understandings regarding that agency's participation during program
development;
(2) Provide for Federal agency input on a timely basis as the
program is developed. Such input shall be related both to information
required to develop the management program and to evaluation of and
recommendations concerning various elements of the management program;
(3) Solicit statements from the head of Federal agencies identified
in Table 1 of Sec. 923.52(c)(1) as to their interpretation of the
national interest in the planning for and siting of facilities which
are more than local in nature;
(4) Summarize the nature, frequency, and timing of contacts with
relevant Federal agencies;
(5) Evaluate Federal comments received during the program
development process and, where appropriate in the opinion of the State,
accommodate the substance of pertinent comments in the management
program. States must consider and evaluate relevant Federal agency
views or comments about the following:
(i) Management of coastal resources for preservation, conservation,
development, enhancement or restoration purposes;
(ii) Statements of the national interest in the planning for or
siting of facilities which are more than local in nature;
(iii) Uses which are subject to the management program;
(iv) Areas which are of particular concern to the management
program;
(v) Boundary determinations;
(vi) Shorefront access and protecting planning, energy facility
planning and erosion planning processes; and
(vii) Federally developed or assisted plans that must be
coordinated with the management program pursuant to subsection
306(d)(3) of the Act.
(6) Indicate the nature of major comments by Federal agencies
provided during program development (either by including copies of
comments or by summarizing comments) and discuss any major differences
or conflicts between the management program and Federal views that have
not been resolved at the time of program submission.
Sec. 923.52 Consideration of the national interest in facilities.
(a) The management program must provide for adequate consideration
of the national interest involved in planning for, and managing the
coastal zone, including the siting of facilities such as energy
facilities which are of greater than local significance. In the case of
energy facilities, the State must have considered any applicable
national or interstate energy plan or program.
(b) The primary purpose of this requirement is to assure adequate
consideration by States of the national interest involved in the
planning for and siting of facilities (which are necessary to meet
other than local requirements) during:
(1) The development of the State's management program,
(2) The review and approval of the program by the Assistant
Administrator, and
(3) The implementation of the program as such facilities are
proposed.
(c) In order to fulfill this requirement, States must:
(1) Describe the national interest in the planning for and siting
of facilities cons
FR Doc. 96-5237 Coastal Zone Management Program Regulations
idered during program development.
(2) Indicate the sources relied upon for a description of the
national interest in the planning for and siting of the facilities.
(3) Indicate how and where the consideration of the national
interest is reflected in the substance of the management program. In
the case of energy facilities in which there is a national interest,
the program must indicate the consideration given any national or
interstate energy plans or programs which are applicable to or affect a
state's coastal zone.
(4) Describe the process for continued consideration of the
national interest in the planning for and siting of facilities during
program implementation, including a clear and detailed description of
the administrative procedures and decisions points where such interest
will be considered.
Sec. 923.53 Federal consistency procedures.
(a) A State must include in its management program submission, as
part of the body of the submission an appendix or an attachment, the
procedures it will use to implement the Federal consistency
requirements of subsections 307 (c) and (d) of the Act. At a minimum,
the following must be included:
(1) An indication of whether the state agency designated pursuant
to subsection 306(d)(6) of the Act or a single other agency will handle
consistency review (see 15 CFR 930.18);
(2) A list of Federal license and permit activities that will be
subject to review (see 15 CFR 930.53);
(3) For States anticipating coastal zone effects from Outer
Continental Shelf (OCS) activities, the license and permit list also
must include OCS plans which describe in detail Federal license and
permit activities (see 15 CFR 930.74); and
(4) The public notice procedures to be used for certifications
submitted for Federal License and permit activities and, where
appropriate, for OCS plans (see 15 CFR 930.61 through 930.62 and
930.78).
(b) Beyond the minimum requirements contained in paragraph (a) of
this section, States have the option of including:
(1) A list of Federal activities, including development projects,
which in the opinion of the State agency are likely to significantly
affect the coastal zone and thereby will require a Federal agency
consistency determination (see 15 CFR 930.35); and
(2) A description of the types of information and data necessary to
assess the consistency of Federal license and permit activities and,
where appropriate, those described in detail in OCS plans (see 15 CFR
930.56 and 930.75).
Sec. 923.54 Mediation.
(a) Section 307(h) of the Act provides for mediation of serious
disagreement between any Federal agency and a coastal state in the
development and implementation of a management program. In certain
cases, mediation by the Secretary, with the assistance of the Executive
Office of the President, may be an appropriate forum for conflict
resolution.
(b) State-Federal differences should be addressed initially by the
parties involved. Whenever a serious disagreement cannot be resolved
between the parties concerned, either party may request the informal
assistance of the Assistant Administrator in resolving the
disagreement. This request shall be in writing, stating the points of
disagreement and the reason therefor. A copy of the request shall be
sent to the other party to the disagreement.
(c) If a serious disagreement persists, the Secretary or other head
of a relevant Federal agency, or the Governor or the head of the state
agency designated by the Governor as administratively responsible for
program development (if a state still is receiving section 305
[[Page 9757]]
program development grants) or for program implementation (if a state
is receiving section 306 program implementation grants) may notify the
Secretary in writing of the existence of a serious disagreement, and
may request that the Secretary seek to mediate the serious
disagreement. A copy of the written request must be sent to the agency
with which the requesting agency disagrees and to the Assistant
Administrator.
(d) Secretarial mediation efforts shall last only so long as the
parties agree to participate. The Secretary shall confer with the
Executive Office of the President, as necessary, during the mediation
process.
(e) Mediation shall terminate:
(1) At any time the parties agree to a resolution of the serious
disagreement,
(2) If one of the parties withdraws from mediation,
(3) In the event the parties fail to reach a resolution of the
serious disagreement within 15 days following Secretarial mediation
efforts, and the parties do not agree to extend mediation beyond that
period, or
(4) For other good cause.
(f) The availability of the mediation services provided in this
section is not intended expressly or implicitly to limit the parties'
use of alternate forums to resolve disputes.
Specifically, judicial review where otherwise available by law may
be sought by any party to a serious disagreement without first having
exhausted the mediation process provided herein.
Sec. 923.55 Full participation by State and local governments,
interested parties, and the general public.
The management program must be developed and adopted with the
opportunity of full participation by state agencies, local governments,
regional commissions and organizations, port authorities, and other
interested public and private parties. To meet this requirement, a
State must:
(a) Develop and make available general information regarding the
program design, its content and its status throughout program
development;
(b) Provide a listing, as comprehensive as possible, of all
governmental agencies, regional organizations, port authorities and
public and private organizations likely to be affected by or to have a
direct interest in the development and implementation of the management
program;
(c) Indicate the nature of major comments received from interested
or affected parties, identified in paragraph (b)(2) of this section,
and the nature of the State's response to these comments; and
(d) Hold public meetings, workshops, etc., during the course of
program development at accessible locations and convenient times, with
reasonable notice and availability of materials.
Sec. 923.56 Plan coordination.
(a) The management program must be coordinated with local,
areawide, and interstate plans applicable to areas within the coastal
zone--
(1) Existing on January 1 of the year in which the state's
management program is submitted to the Secretary; and
(2) Which have been developed by a local government, an areawide
agency, a regional agency, or an interstate agency.
(b) A State must insure that the contents of its management program
has been coordinated with local, areawide and interstate plans
applicable to areas within the coastal zone existing on January 1 of
the year in which the State's management program is submitted to the
Assistant Administrator for approval. To document this coordination,
the management program must:
(1) Identify local governments, areawide agencies and regional or
interstate agencies which have plans affecting the coastal zone in
effect on January 1 of the year in which the management program is
submitted;
(2) List or provide a summary of contacts with these entities for
the purpose of coordinating the management program with plans adopted
by a governmental entity as of January 1 of the year in which the
management program is submitted. At a minimum, the following plans,
affecting a State coastal zone, shall be reviewed: land use plans
prepared pursuant to section 701 of the Housing and Urban Development
Act of 1968, as amended; State and areawide waste treatment facility or
management plans prepared pursuant to sections 201 and 208 of the Clean
Water Act, as amended; plans and designations made pursuant to the
Flood Insurance Act of 1974; any applicable interstate energy plans or
programs developed pursuant to section 309 of the Act; regional and
interstate highway plans; plans developed by Regional Action Planning
Commission; and fishery management plans developed pursuant to the
Fisheries Conservation and Management Act.
(3) Identify conflicts with those plans of a regulatory nature that
are unresolved at the time of program submission and the means that can
be used to resolve these conflicts.
Sec. 923.57 Continuing consultation.
(a) As required by subsection 306(d)(3)(B) of the Act, a State must
establish an effective mechanism for continuing consultation and
coordination between the management agency designated pursuant to
paragraph (6) of section 306(d) of the Act and with local governments,
interstate agencies, regional agencies, and areawide agencies within
the coastal zone to assure the full participation of those local
governments and agencies in carrying out the purposes of this Act.
(b) The management program must establish a procedure whereby local
governments with zoning authority are notified of State management
program decisions which would conflict with any local zoning ordinance
decision.
(1) ``Management program decision'' refers to any major,
discretionary policy decisions on the part of a management agency, such
as the determination of permissible land and water uses, the
designation of areas or particular concern or areas for preservation or
restoration, or the decision to acquire property for public uses.
Regulatory actions which are taken pursuant to these major decisions
are not subject to the State-local consultation mechanisms. A State
management program decision is in conflict with a local zoning
ordinance if the decision is contradictory to that ordinance. A State
management program decision that consists of additional but not
contradictory requirements is not in conflict with a local zoning
ordinance, decision or other action;
(2) ``Local government'' refers to these defined in section 304(11)
of the Act which have some form of zoning authority.
(3) ``Local zoning ordinance, decision or other action'' refers to
any local government land or water use action which regulates or
restricts the construction, alteration of use of land, water or
structures thereon or thereunder. These actions include zoning
ordinances, master plans and official maps. A local government has the
right to comment on a State management program decision when such
decision conflicts with the above specified actions;
(4) Notification must be in writing and must inform the local
government of its right to submit comments to the State management
agency in the event the proposed State management program decision
conflicts with a local zoning ordinance, decision or other
[[Page 9758]]
action. The effect of providing such notice is to stay State action to
implement its management decision for at least a 30-day period unless
the local government waives its right to comment.
(5) ``Waiver'' of the right of local government to comment (thereby
permitting a State agency to proceed immediately with implementation of
the management program decision) shall result:
(i) Following State agency receipt of a written statement from a
local government indicating that it either:
(A) Waives its right to comment; or
(B) Concurs with the management program decision; or
(C) Intends to take action which conflicts or interferes with the
management program decision; or
(ii) Following a public statement by a local government to the same
effect as paragraph (b)(5)(i) of this section; or
(iii) Following an action by a local government that conflicts or
interferes with the management program decision.
(6) The management program shall include procedures to be followed
by a management agency in considering a local government's comments.
These procedures shall include, at a minimum, circumstances under which
the agency will exercise its discretion to hold a public hearing. Where
public hearings will be held, the program must set forth notice and
other hearing procedures that will be followed. Following State agency
consideration of local comments (when a discretionary public hearing is
not held) or following public hearing, the management agency shall
provide a written response to the affected local government, affected
local government, within a reasonable period of time and prior to
implementation of the management program decision, on the results of
the agency's consideration of public comments.
Sec. 923.58 Public hearings.
The management program must be developed and adopted after the
holding of public hearings. A State must:
(a) Hold a minimum of two public hearings during the course of
program development, at least one of which will be on the total scope
of the coastal management program. Hearings on the total management
program do not have to be held on the actual document submitted to the
Assistant Administrator for section 306 approval. However, such
hearing(s) must cover the substance and content of the proposed
management program in such a manner that the general public, and
particularly affected parties, have a reasonable opportunity to
understand the impacts of the management program. If the hearing(s) are
not on the management document per se, all requests for such document
must be honored and comments on the document received prior to
submission of the document to the Assistant Administrator must be
considered;
(b) Provide a minimum of 30 days public notice of hearing dates and
locations;
(c) Make available for public review, at the time of public notice,
all agency materials pertinent to the hearings; and
(d) Include a transcript or summary of the public hearing(s) with
the State's program document or submit same within thirty (30) days
following submittal of the program to the Assistant Administrator. At
the same time this transcript or summary is submitted to the Assistant
Administrator, it must be made available, upon request, to the public.
Subpart G--Review/Approval Procedures
Sec. 923.60 Review/approval procedures.
(a) All state management program submissions must contain an
environmental assessment at the time of submission of the management
program to OCRM for threshold review. In accordance with regulations
implementing the National Environmental Policy Act of 1969, as amended,
OCRM will assist the State by outlining the types of information
required. (See 40 CFR 1506.5 (a) and (b).)
(b) Upon submission by a State of its draft management program,
OCRM will determine if it adequately meets the requirements of the Act
and this part. Assuming positive findings are made and major revisions
to the State's draft management program are not required, OCRM will
prepare draft and final environmental impact statements, in accordance
with National Environmental Policy Act requirements. Because the review
process involves preparation and dissemination of draft and final
environmental impact statements and lengthy Federal agency review;
states should anticipate that it will take at least 7 months between
the time a state first submits a draft management program to OCRM for
threshold review and the point at which the Assistant Administrator
makes a final decision on whether to approve the management program.
Certain factors will contribute to lengthening or shortening this
timetable; these factors are discussed in OCRM guidance on the review/
approval process. The OCRM guidance also recommends a format for the
program document submitted to the Assistant Administrator for review
and approval.
Subpart H--Amendments to and Termination of Approved Management
Programs.
Sec. 923.80 General.
(a) This subpart establishes the criteria and procedures by which
amendments, modifications or other changes to approved management
programs may be made. This subpart also establishes the conditions and
procedures by which administrative funding may be terminated for
programmatic reasons.
(b) Any coastal state may amend or modify a management program
which is has submitted and which has been approved by the Assistant
Administrator under this subsection, subject to the conditions provided
for in subsection 306(e) of the Act.
(c) As required by subsection 312(d) of the Act, the Assistant
Administrator shall withdraw approval of the management program of any
coastal state and shall withdraw financial assistance available to that
state under this title as well as any unexpended portion of such
assistance, if the Assistant Administrator determines that the coastal
state has failed to take the actions referred to in subsection
312(c)(2)(A) of the Act.
(d) For purposes of this subpart, amendments are defined as
substantial changes in one or more of the following coastal management
program areas:
(1) Uses subject to management;
(2) Special management areas;
(3) Boundaries;
(4) Authorities and organization; and
(5) Coordination, public involvement and the national interest.
(e) OCRM will provide guidance on program changes. The five program
management areas identified in Sec. 923.80(d) are also discussed in
subparts B through F of this part.
Sec. 923.81 Requests for amendments.
(a) Requests for amendments shall be submitted to the Assistant
Administrator by the Governor of a coastal state with an approved
management program or by the head of the state agency (designated
pursuant to subsection 306(d)(6) of the Act) if the Governor had
delegated this responsibility and such delegation is part of the
approved management program. Whenever possible, requests should be
submitted prior to final State action to implement the amendment. At
least one public hearing must be held on the proposed amendment,
pursuant to
[[Page 9759]]
subsection 306(d)(4) of the Act. Pursuant to section 311 of the Act,
notice of such public hearing(s) must be announced at least 30 days
prior to the hearing date. At the time of the announcement, relevant
agency materials pertinent to the hearing must be made available to the
public.
(b) Amendment requests must contain the following:
(1) A description of the proposed change, including specific pages
and text of the management program that will be changed if the
amendment is approved by the Assistant Administrator. This description
shall also identify any enforceable policies to be added to the
management program;
(2) An explanation of why the change is necessary and appropriate,
including a discussion of the following factors, as relevant: Changes
in coastal zone needs, problems, issues, or priorities. This discussion
also shall identify which findings, if any, made by the Assistant
Administrator in approving the management program may need to be
modified if the amendment is approved;
(3) A copy of public notice(s) announcing the public hearing(s) on
the proposed amendments;
(4) A summary of the hearing(s) comments:
(i) Where OCRM is providing Federal agency review concurrent with
the notice period for the State's public hearing, this summary of
hearing(s) comments may be submitted to the Assistant Administrator
within 60 days after the hearing;
(ii) Where hearing(s) summaries are submitted as a supplement to
the amendment request (as in the case described in paragraph (b)(1) of
this section), the Assistant Administrator will not take final action
to approve or disapprove an amendment request until the hearing(s)
summaries have been received and reviewed; and
(5) Documentation of opportunities provided relevant Federal,
State, regional and local agencies, port authorities and other
interested public and private parties to participate in the development
and approval at the State level of the proposed amendment.
Sec. 923.82 Amendment review/approval procedures.
(a) Upon submission by a State of its amendment request, OCRM will
review the request to determine preliminarily if the management
program, if changed according to the amendment request, still will
constitute an approvable program. In making this determination, OCRM
will determine whether the state has satisfied the applicable program
approvability criteria of subsection 306(d) of the Act.
(b) If the Assistant Administrator, as a preliminary matter,
determines that the management program, if changed, would no longer
constitute an approvable program, or if any of the procedural
requirements of section 306(d) of the Act have not been met, the
Assistant Administrator shall advise the state in writing of the
reasons why the amendment request cannot be considered.
(c) If the Assistant Administrator, as a preliminary matter,
determines that the management program, if changed, would still
constitute an approvable program and that the procedural requirements
of section 306(d) of the Act have been met, the Assistant Administrator
will then determine, pursuant to the National Environmental Policy Act
of 1969, as amended, whether an environmental impact statement (EIS) is
required.
Sec. 923.83 Medication of amendments.
(a) Section 307(h)(2) of the Act provides for mediation of
``serious disagreements'' between a Federal agency and a coastal State
during administration of an approved management program. Accordingly
mediation is available to states or federal agencies when a serious
disagreement regarding a proposed amendment arises.
(b) Mediation may be requested by a Governor or head of a state
agency designated pursuant to subsection 306(d)(6) or by the head of a
relevant Federal agency. Mediation is a voluntary process in which the
Secretary of Commerce attempts to mediate between disagreeing parties
over major problems. (See Sec. 923.54).
Sec. 923.84 Routine program changes.
(a) Further detailing of a State's program that is the result of
implementing provisions approved as part of a State's approved
management program, that does not result in the type of action
described in Sec. 923.80(d), will be considered a routine program
change. While a routine change is not subject to the amendment
procedures contained in Secs. 923.81 through 923.82, it is subject to
mediation provisions of Sec. 923.83.
(b) (1) States must notify OCRM of routine program change actions
in order that OCRM may review the action to ensure it does not
constitute an amendment. The state notification shall identify and
enforceable policies to be added to the management program, and explain
why the program change will not result in the type of action described
in Sec. 923.80(d).
(i) States have the option of notifying OCRM of routine change on a
case-by-case basis, periodically throughout the year, or annually.
(ii) In determining when an how often to notify OCRM of such
actions, States should be aware that Federal consistency will apply
only after the notice required by paragraph (b)(4) of this section has
been provided.
(2) Concurrent with notifying OCRM, States must provide notice to
the general public and affected parties, including local governments,
other State agencies and regional offices of relevant federal agencies
of the notification given OCRM.
(i) This notice must:
(A) Describe the nature of the routine program change and identify
any enforceable policies to be added to the management program if the
State's request is approved;
(B) Indicate that the State considers it to be a routine program
change and has requested OCRM's concurrence in that determination; and
(C) Indicate that any comments on whether or not the action does or
does not constitute a routine program change may be submitted to OCRM
within 3 weeks of the date of issuance of the notice.
(ii) Where relevant Federal agencies do not maintain regional
offices, notice must be provided to the headquarters office.
(3) Within 4 weeks of receipt of notice from a State, OCRM will
inform the State whether it concurs that the action constitutes a
routine program change. Failure to notify a State in writing within 4
weeks of receipt of notice shall be considered concurrence.
(4) Where OCRM concurs, a State then must provide notice of this
fact to the general public and affected parties, including local
governments, other State agencies and relevant Federal agencies.
(i) This notice must:
(A) Indicate the date on which the State received concurrence from
OCRM that the action constitutes a routine program change;
(B) Reference the earlier notice (required in paragraph (b)(2) of
this section) for a description of the content of the action; and
(C) Indicate if Federal consistency applies as of the date of the
notice called for in this paragraph.
(ii) Federal consistency shall not be required until this notice
has been provided.
(5) Where OCRM does not concur, a State will be advised to:
(i) submit the action as an amendment, subject to the provisions of
Secs. 923.81 through 923.82; or
[[Page 9760]]
(ii) resubmit the routine program change with additional
information requested by OCRM concerning how the program will be
changed as a result of the action.
Subpart I--Applications for Program Development or Implementation
Grants
Sec. 923.90 General.
(a) The primary purpose of development grants made pursuant to
section 305 of the Act is to assist coastal States in the development
of comprehensive coastal management programs that can be approved by
the Assistant Administrator. The primary purpose of implementation
grants made pursuant to section 306 of the Act is to assist coastal
States in implementing coastal management programs following their
approval, including especially administrative actions to implement
enforceable program policies, authorities and other management
techniques. The purpose of the guidelines in this subpart is to define
the procedures by which grantees apply for and administer grants under
the Act. These guidelines shall be used and interpreted in conjunction
with applicable Federal laws and policies, Department of Commerce
grants management regulations, policies and procedures, and any other
applicable directives from the NOAA Grants Management Division and OCRM
program offices.
(b) Grants awarded to a State must be expended for the development
or administration, as appropriate, of a management program that meets
the requirements of the Act, and in accordance with the terms of the
award.
(c) All applications for funding under section 305 or 306 of the
Act, including proposed work programs, funding priorities and
allocations are subject to the discretion of the Assistant
Administrator.
(d) For purposes of this subpart, the term ``development grant''
means a grant awarded pursuant to subsection 305(a) of the Act.
``Administrative grant'' and ``implementation grant'' are used
interchangeably and mean grants awarded pursuant to subsection 306(a)
of the Act.
(e) All application and preapplication forms are to be requested
from and submitted to: National Oceanic and Atmospheric Administration,
Office of Ocean and Coastal Resource Management, Coastal Programs
Division, 1305 East-West Highway (N/ORM3), Silver Spring, MD 20910.
Sec. 923.91 State responsibility.
(a) Applications for program grants are required to be submitted by
the Governor of a participating state or by the head of the state
entity designated by the Governor pursuant to subsection 306(d)(6) of
the Act.
(b) In the case of a section 305 grant, the application must
designate a single state agency or entity to receive development grants
and to be responsible for development of the State's coastal management
program. The designee need not be that entity designated by the
Governor pursuant to subsection 306(d)(6) of the Act as a single agency
to receive and administer implementation grants.
(c) One State application will cover all program activities for
which program development or implementation funds under this Act and
matching State funds are provided, irrespective of whether these
activities will be carried out by State agencies, areawide or regional
agencies, local governments, or interstate entities.
(d) The designated State entities shall be fiscally responsible for
all expenditures made under the grant, including expenditures by
subgrantees and contractors.
Sec. 923.92 Allocation.
(a) Subsections 303(4), 306(d)(3)(B) and 306(d)(10) of the Act
foster intergovernmental cooperation in that a state, in accordance
with its coastal zone management program, may allocate some of its
coastal zone management responsibilities to several agencies, including
local governments, areawide agencies, regional agencies and interstate
agencies. Such allocations provide for continuing consultation and more
effective participation and cooperation among state and local
governments, interstate, regional and areawide agencies.
(b) A State may allocate a portion or portions of its grant to
other State agencies, local governments, areawide or regional agencies,
interstate entities, or Indian tribes, if the work to result from such
allocation(s) will contribute to the effective development or
implementation of the State's management program.
(1) Local governments. Should a State desire to allocate a portion
of its grant to a local government, units of general-purpose local
government are preferred over special-purpose units of local
government. Where a State will be relying on direct State controls as
provided for in subsection 306(d)(11)(B) of the Act, pass-throughs to
local governments for local planning, regulatory or administrative
efforts under a section 306 grant cannot be made, unless they are
subject to adequate State overview and are part of the approved
management program. Where the approved management program provides for
other specified local activities or one-time projects, again subject to
adequate State overview, then a portion of administrative grant funds
may be considered regional agencies and may be allocated to local
governments.
(2) Indian Tribes. Tribal participation in coastal management
efforts may be supported and encouraged through a State's program.
Individual tribes or groups of tribes may be considered regional
agencies and may be allocated a portion of a State's grant for the
development of independent tribal coastal management programs or the
implementation of specific management projects provided that:
(i) The State certifies that such tribal programs or projects are
compatible with its approved coastal management policies; and
(ii) On excluded tribal lands, the State demonstrates that the
tribal program or project would or could directly affect the State's
coastal zone.
Sec. 923.93 Eligible implementation costs.
(a) Costs claimed must be beneficial and necessary to the
objectives of the grant project. As used herein the terms cost and
grant project pertain to both the Federal and the matching share.
Allowability of costs will be determined in accordance with the
provisions of OMB Circular A-87: Cost Principles for State, Local and
Indian Tribal Governments.
(b) Federal funds awarded pursuant to section 306 of the Act may
not be used for land acquisition purposes and may not be used for
construction purposes. These costs may be eligible, however, pursuant
to section 306A of the Act.
(c) The primary purpose for which implementation funds, pursuant to
section 306 of the Act, are to be used is to assure effective
implementation and administration of the management program, including
especially administrative actions to implement enforceable program
policies, authorities and other management techniques. Implementation
activities should focus on achieving the policies of the Act.
(d) Section 306 funding in support of any of these purposes may be
used to fund, among other things:
(1) Personnel costs,
(2) Supplies and overhead,
(3) Equipment, and
(4) Feasibility studies and preliminary engineering reports.
[[Page 9761]]
(e) States are encouraged to coordinate administrative funding
requests with funding possibilities pursuant to sections 306A, 308,
309, 310 and 315 of the Act, as well as with funding possibilities
pursuant to section 6217 of the Coastal Zone Act Reauthorization
Amendments to 1990. When in doubt as to the appropriate section of the
Act under which to request funding, States should consult with OCRM.
States should consult with OCRM on technical aspects of consolidating
requests into a single application.
Sec. 923.94 Application for program development or implementation
grants.
(a) OMB Standard Form 424 (4-92) and the NOAA Application Kit for
Federal Assistance constitute the formal application. An original and
two (2) copies must be submitted 45 days prior to the desired grant
beginning date. The application must be accompanied by evidence of
compliance with E.O. 12372 requirements including the resolution of any
problems raised by the proposed project. The administrative
requirements for grants and subawards, under this program, to state,
local and Indian tribal governments are set out in 15 CFR Part 24. The
administrative requirements for other entities are prescribed under OMB
Circular A-110: Administrative Requirements for Grants and Agreements
with Institutions of Higher Education, Hospitals and Other Non-Profit
Organizations.
(b) Costs claimed as charges to the grant project must be
beneficial and necessary to the objectives of the grant project. As
used herein, the terms ``cost'' and ``grant project'' pertain to both
the Federal amount awarded and the non-federal matching share.
Allowability of costs will be determined in accordance with the
provisions of OMB Circular A-87: Cost Principles for State, Local and
Indian Tribal Governments. Eligible implementation costs also shall be
determined in accordance with Sec. 923.93 of these regulations.
Allowability of costs for non-profit organizations will be determined
in accordance with OMB Circular A-122: Cost Principles for Non-Profit
Organizations. Allowability of costs for institutions of higher
education will be determined in accordance with OMB Circular A-21: Cost
Principles for Educational Institutions.
(c) In the grant application, the applicant must describe clearly
and briefly the activities that will be undertaken with grant funds in
support of implementation and administration of the management program.
This description must include:
(1) An identification of those elements of the approved management
program that are to be supported in whole or in part by the Federal and
the matching share,
(2) A clear statement of the major tasks required to implement each
element,
(3) For each task the application must:
(i) Specify how it will be accomplished and by whom;
(ii) Identify any sub-awardees (other State agencies, local
governments, individuals, etc.) that will be allocated responsibility
for carrying out all or portions of the task, and indicate the
estimated cost of the sub-awards for each allocation; and
(iii) Indicate the estimated total cost.
(4) The sum of all task costs in paragraph (c)(3) of this section
should equal the total estimated grant project cost.
(d) For program development grants, when evaluating whether a State
is making satisfactory progress toward completion of an approvable
management program which is necessary to establish eligibility for
subsequent grants, the Assistant Administrator will consider:
(1) The progress made toward meeting management program goals and
objectives;
(2) The progress demonstrated in completing the past year's work
program;
(3) The cumulative progress toward meeting the requirements for
preliminary or final approval of a coastal management program;
(4) The applicability of the proposed work program to fulfillment
of the requirement for final approval; and
(5) The effectiveness of mechanisms for insuring public
participation and consultation with affected Federal, State, regional
and local agencies in program development.
Sec. 923.95 Approval of applications.
(a) The application for a grant by any coastal State which complies
with the policies and requirements of the Act and these guidelines
shall be approved by the NOAA Grants Officer, upon recommendation by
the Assistant Administrator, assuming available funding.
(b) Should an application be found deficient, the Assistant
Administrator will notify the applicant in detail of any deficiency
when an application fails to conform to the requirements of the Act or
these regulations. Conferences may be held on these matters.
Corrections or adjustments to the application will provide the basis
for resubmittal of the application for further consideration and
review.
(c) The NOAA Grants Officer, upon recommendation by the Assistant
Administrator, may waive appropriate administrative requirements
contained in this subpart, upon finding of extenuating circumstances
relating to applications for assistance.
Sec. 923.96 Grant amendments.
(a) Actions that require an amendment to a grant award such as a
request for additional Federal funds, changes in the amount of the non-
Federal share, changes in the approved project budget as specified in
15 CFR Part 24, or extension of the grant period must be submitted to
the Assistant Administrator and approved in writing by the NOAA Grants
Officer prior to initiation of the contemplated change. Such requests
should be submitted at least 30 days prior to the proposed effective
date of the change and, if appropriate, accompanied by evidence of
compliance with E.O. 12372 requirements.
(b) NOAA shall acknowledge receipt of the grantee's request within
the ten (10) working days of receipt of the correspondence. This
notification shall indicate NOAA's decision regarding the request; or
indicate a time-frame within which a decision will be made.
PART 926--[REMOVED]
5. Part 926 which is currently reserved is removed.
PART 927--[REDESIGNATED AS PART 923, SUBPART J]
6. Part 927, consisting of Sec. 927.1, is redesignated as subpart J
of part 923, consisting of Sec. 923.110.
PART 928--[REDESIGNATED AS PART 923, SUBPART L]
7. Part 928 is redesignated as subpart L of part 923, and
Secs. 928.1 through 928.5 are redesignated as Secs. 923.131 through
923.135 in the subpart.
Sec. 923.131 [Amended]
8. Redesignated Sec. 923.131 is amended by replacing the two
references to ``this part'' in the introductory text with references to
``this subpart.''
Sec. 923.133 [Amended]
9. Redesignated Sec. 923.133 is amended by changing the references
to 15 CFR 928.3 and 928.4 in paragraph (b)(9), the reference to
Sec. 928.2(d) in paragraph (c)(2), and the reference to
Sec. 928.3(c)(4) in paragraph (d)(2), as references to Secs. 923.133
and 923.134, Sec. 923.132(d) and Sec. 923.133(c)(4), respectively.
[[Page 9762]]
Sec. 923.134 [Amended]
10. Redesignated Sec. 923.134 is amended by changing the reference
to 15 CFR 928.3(b)(7) in paragraph (b)(3) as a reference to
Sec. 923.133(b)(7).
Sec. 923.135 [Amended]
11. Redesignated Sec. 923.135 is amended as follows:
(1) by changing the reference to 15 CFR 928.5(a)(3) in paragraph
(a)(2)(i) as a reference to Sec. 923.135(a)(3),
(2) by changing the reference to 15 CFR 928.4 in paragraph
(a)(2)(ii) as a reference to Sec. 923.134,
(3) by changing the reference to 15 CFR 923.81(c) in paragraph
(a)(3)(i)(G) as a reference to 15 CFR 923.81(a), and
(4) by changing the four references to 15 CFR 928.5(a)(2) in
paragraphs (b)(2)(i) and (iii) as references to Sec. 923.135(a)(2).
PART 932--[REDESIGNATED AS PART 923, SUBPART K]
12. Part 932 is redesignated as Subpart K of Part 923, and
Secs. 932.1 through 932.8 are redesignated as Secs. 923.121 through
923.128 in the Subpart.
13. Redesignated Sec. 923.121 is amended by revising paragraph (h)
to read as follows:
Sec. 923.121 General.
* * * * *
(h) All application forms are to be requested from and submitted
to: National Oceanic and Atmospheric Administration, Office of Ocean
and Coastal Resource Management, Coastal Programs Division, 1305 East-
West Highway (N/ORM3), Silver Spring, MD 20910.
14. Redesignated Sec. 923.121 is further amended as follows:
(1) by changing the references to ``this part'' in paragraphs (a)
and (b) with references to ``this subpart'', and
(2) by changing the reference to 15 CFR 932.8 in paragraph (b)(1)
as a reference to Sec. 923.128.
Sec. 923.123 [Amended]
15. Redesignated Sec. 923.123 is amended as follows:
(1) in paragraph (a), by replacing ``routine program
implementation'' with ``routine program change'',
(2) in the footnote in paragraph (b), the address is revised to
read: ``Office of Ocean and Coastal Resource Management, Coastal
Programs Division, 1305 East-West Highway (N/ORM3), Silver Spring, MD
20910'', and
(3) by changing the reference to 15 CFR 932.5(a) in paragraph (d)
and the reference to 15 CFR 932.5(b) in paragraph (e), as references to
Secs. 923.125(a) and 923.125(b), respectively.
Sec. 923.124 [Amended]
16. Redesignated Sec. 923.124 is amended as follows:
(1) by changing the reference to 15 CFR 932.1(b) and 15 CFR
927.1(c) in paragraph (d)(1)(i) as references to Secs. 923.121(b) and
923.110(c), respectively,
(2) by changing the reference to 15 CFR 932.4(d) in paragraph
(d)(1)(iii) as a reference to Sec. 923.124(d),
(3) by changing the reference to 15 CFR 932.8 in paragraph (d)(3)
as a reference to Sec. 923.128,
(4) by changing the references to 15 CFR 932.4(d), 15 CFR 932.3(d)
and 15 CFR 932.5(b) in paragraph (e) as references to Secs. 923.124(d),
923.123(d), and 923.125(b), respectively, and
(5) by changing the references to 15 CFR 932.4(b), 15 CFR 932.4(c),
15 CFR 932.4(d) and 15 CFR 932.4(e) in paragraph (f) as references to
Secs. 923.124(b), 923.124(c), 923.124(d) and 923.124(e), respectively.
Sec. 923.125 [Amended]
17. Redesignated Sec. 923.125 is amended as follows:
(1) by changing the reference to 15 CFR 932.6(b)(1) in paragraph
(a)(1)(v) as a reference to Sec. 923.126(b)(1),
(2) by changing the reference to 15 CFR 932.3(e) in paragraph
(b)(2)(ii) as a reference to Sec. 923.123(e),
(3) by changing the reference to 15 CFR 932.3(f) in paragraph
(b)(2)(iii) as a reference to Sec. 923.123(f), and
(4) by changing the references to Sec. 932.5(a) and 15 CFR 932.5(b)
in paragraph (c) as references to Secs. 923.125(a) and 923.125(b),
respectively.
18. Redesignated Sec. 923.125 is further amended by removing
footnote two in paragraph (a)(1)(ii).
Sec. 923.126 [Amended]
19. Redesignated Sec. 923.126 is amended as follows:
(1) by changing the references to 15 CFR 932.6(b) and 15 CFR
932.1(b) in paragraph (a) as references to Secs. 923.126(b) and
923.121(b), respectively,
(2) by changing the reference to 15 CFR 923.95(d)(3)(ii) in
paragraph (b)(1)(iii) as a reference to Sec. 923.94(d)(3)(ii),
(3) by changing the references to 15 CFR 932.5(a) and 15 CFR
932.5(b) in paragraph (b)(4) as references to Secs. 923.125(a) and
923.125(b), respectively,
(4) by changing the reference to 15 CFR 932.3(a) in paragraph
(b)(7) as a reference to Sec. 923.123(a),
(5) by changing the references to 15 CFR 932.5(a) and 15 CFR
932.4(d) in paragraph (b)(8) as references to Secs. 923.125(a) and
923.124(d), respectively,
(6) by changing the references to 15 CFR 932.5(a) and 15 CFR
932.5(b) in paragraph (c)(3) as references to Secs. 923.125(a) and
923.125(b), respectively,
(7) by changing the references to 15 CFR 932.5(a) and 15 CFR
932.4(d) in paragraph (c)(4) as references to Secs. 923.125(a) and
923.124(d), respectively, and
(8) by changing the reference to subpart J of 15 CFR part 923 in
paragraph (c)(5) as a reference to subpart I of 15 CFR part 923.
Sec. 923.127 [Amended]
20. Redesignated Sec. 923.127 is amended as follows:
(1) by changing the reference to subpart J of 15 CFR part 923 in
paragraph (a) as a reference to subpart I of 15 CFR part 923,
(2) by changing the reference to 15 CFR 932.6(b)(1) in paragraph
(b) as a reference to Sec. 923.126(b)(1),
(3) by changing the reference to subpart J of 15 CFR part 923 in
paragraph (c) as a reference to subpart I of 15 CFR part 923, and
(4) by changing the reference to 15 CFR 932.6(c)(2) in paragraph
(e) as a reference to Sec. 923.126(c)(2).
PART 933--COASTAL ZONE MANAGEMENT RESEARCH AND TECHNICAL ASSISTANCE
[REMOVED]
21. Part 933 is removed.
* * * * *
[FR Doc. 96-5237 Filed 3-8-96; 8:45 am]
BILLING CODE 3510-08-M
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