issue-1996-05-10•Federal Register proposed rules — 1996-05-10
Federal Register proposed rules — 1996-05-10
issue-1996-05-10Federal Register proposed rules — 1996-05-10Proposed 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. 96-11788 Uniform Compliance Date for Food Labeling Regulations; Correction
[Federal Register Volume 61, Number 92 (Friday, May 10, 1996)]
[Proposed Rules]
[Page 21392]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11788]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration
21 CFR Chapter 1
[Docket No. 96N-0094]
Uniform Compliance Date for Food Labeling Regulations; Correction
AGENCY: Food and Drug Administration, HHS.
ACTION: Proposed rule; correction.
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SUMMARY: The Food and Drug Administration (FDA) is correcting a
proposed rule that appeared in the Federal Register of April 15, 1996
(61 FR 16422). The document proposed to establish January 1, 1998, as
its new uniform compliance date for all food labeling regulations that
are issued after the publication of a final rule based on the proposal
and before January 1, 1997. The document was published with an
editorial error. This document corrects that error.
FOR FURTHER INFORMATION CONTACT: Gerad L. McCowin, Center for Food
Safety and Applied Nutrition (HFS-150), Food and Drug Administration,
200 C St. SW., Washington, DC 20204, 202-205-4561.
In FR Doc. 96-9319, appearing on page 16422 in the Federal Register
of Monday, April 15, 1996, the following correction is made:
1. On page 16422, in the first column, after the ``DATES'' caption,
a new caption is added to read as follows: ``ADDRESSES: Submit written
comments to the Dockets Management Branch (HFA-305), Food and Drug
Administration, 12420 Parklawn Dr., rm. 1-23, Rockville, MD 20857.''
Dated: May 6, 1996.
William K. Hubbard,
Associate Commissioner for Policy Coordination.
[FR Doc. 96-11788 Filed 5-9-96; 8:45 am]
BILLING CODE 4160-01-F
Complete official Federal Register PDF
FR Doc. 96-11773 Scallop Fishery off Alaska; Federal Management Regime
[Federal Register Volume 61, Number 92 (Friday, May 10, 1996)]
[Proposed Rules]
[Pages 21431-21437]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11773]
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DEPARTMENT OF COMMERCE
50 CFR Part 673
[Docket No. 960502124-6124-01; I.D. 042396B]
RIN 0648-AF81
Scallop Fishery off Alaska; Federal Management Regime
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; proposed 1996 scallop harvest specifications;
request for comments.
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SUMMARY: NMFS proposes regulations to implement Amendment 1 to the
Fishery Management Plan for the Scallop Fishery off Alaska (FMP).
Amendment 1 would establish a Federal management regime for the scallop
fishery in Federal waters off Alaska. The management measures proposed
under Amendment 1 include: Gear and efficiency restrictions, scallop
registration areas and districts, procedures for specifying total
allowable catch (TAC) and crab bycatch limits (CBLs), time and area
closures, inseason management authority, fishing seasons, and observer
coverage requirements. This action is necessary to further the
conservation and management objectives of the FMP and the Magnuson
Fishery Conservation and Management Act (Magnuson Act).
DATES: Comments must be received by June 21, 1996.
ADDRESSES: Comments must be sent to Ronald J. Berg, Chief, Fisheries
Management Division, Alaska Region, NMFS, P.O. Box 21668, Juneau, AK
99802, Attn: Lori J. Gravel. Copies of the proposed FMP amendment and
the Environmental Assessment/ Regulatory Impact Review/Initial
Regulatory Flexibility Analysis (EA/RIR/IRFA) prepared for this action
may be obtained from the same address.
FOR FURTHER INFORMATION CONTACT: Kent Lind, 907-586-7228.
SUPPLEMENTARY INFORMATION:
Background
The scallop fishery in the exclusive economic zone (Federal waters)
off Alaska is managed under the FMP. The FMP was prepared by the North
Pacific Fishery Management Council (Council) under the Magnuson Act.
The FMP was approved by NMFS on July 26, 1995. The only management
measure currently authorized under the FMP is an interim closure of
Federal waters off Alaska to fishing for scallops for 1 year, or until
an amendment to the FMP is prepared that would provide for a managed
fishery in Federal waters. The interim closure will expire on August
28, 1996. Regulations implementing the FMP are set out at 50 CFR part
673. General regulations that also affect fishing in Federal waters are
set out at 50 CFR part 620. The history of the scallop fishery off
Alaska, as well as the events leading up to the interim closure of
Federal waters are described in the FMP and in the preambles to the
proposed and final rules implementing the FMP (60 FR 24822, May 10,
1995, and 60 FR 42070, August 15, 1995, respectively).
In June 1995, the Council adopted Amendment 1 to the FMP, which
would authorize Federal management measures to replace the interim
closure of Federal waters to fishing for scallops. The Council's
preferred alternative for Amendment 1 was to incorporate certain State
of Alaska (State) management measures into the Federal regulations and
implement a vessel moratorium based on criteria adopted in April 1994
and reaffirmed in January 1995. Eighteen vessels would qualify under
the moratorium. The Council subsequently separated the moratorium from
Amendment 1 and will propose a vessel moratorium as Amendment 2. Such
action was taken to prevent moratorium issues from delaying the
reopening of the fishery.
[[Page 21432]]
At its January 1993 meeting, the Council determined that
unrestricted access to the scallop fishery may be harmful to the
resource and result in a net loss to the Nation. The Council announced
a control date of January 20, 1993, to place the industry on notice
that a moratorium for this fishery may be implemented and any person or
fishing vessel that entered the scallop fisheries in Federal waters off
Alaska would not be assured of future access to those fishery resources
if a moratorium is implemented. This control date was again reaffirmed
at the Council's June 1993 and June 1995 meetings. The January 20,
1993, control date, which was published in the Council's newsletter,
means that fishermen and/or vessels not participating in the fishery by
that date may not be guaranteed future access to the fishery. NMFS
notifies current and future participants in the scallop fisheries that
landings made after January 20, 1993, may not count toward allocations
of catch under future Federal management and may not be guaranteed
future access to the scallop fishery.
The regulations proposed under Amendment 1 were developed in
coordination with the Council and the State, and are designed to
complement current State management of the scallop fishery. These
proposed regulations would not preclude the State from imposing
additional regulations on State registered vessels fishing in Federal
waters, so long as State regulations are consistent with the FMP and
its implementing regulations. The following explains each aspect of the
proposed rule.
Gear and Efficiency Restrictions
The primary purpose for restrictions on fishing gear and processing
efficiency is to prevent overfishing of undersize scallops.
Restrictions on the ring size of scallop dredges are designed to
prevent the harvest of juvenile scallops. Limits on dredge widths, crew
size, and automatic shucking machines are designed to discourage
vessels from targeting on juvenile scallops. The amount of scallops
that can be processed on board vessels depends on how fast the scallops
can be sorted and shucked. Because larger scallops are worth more per
meat, and take the same amount of processing time as small scallops, a
limited crew size and a ban on automatic shucking machines would
provide an economic incentive for vessels to target larger sized,
higher yield, mature scallops. Efficiency limits would also tend to
allocate the resource evenly among vessels, regardless of an individual
vessel's potential harvesting capacity.
The following gear and efficiency restrictions are proposed:
1. The inside ring diameter on all dredges used or carried by a
vessel fishing for weathervane scallops (Patinopectin caurinus) must be
4 inches (10.16 cm) or larger.
2. The inside ring diameter on all dredges used or carried by a
vessel fishing for scallops other than weathervane scallops must be 3
inches (7.62 cm) or larger.
3. No person may use chafing gear or other devices that decrease
the legal inside ring diameter of a scallop dredge.
4. Except as provided in item 5 below, no more than two scallop
dredges may be operated at one time from a vessel, and the opening of a
scallop dredge must be equal to or less than 15 ft (4.57 m) wide.
5. In the Kamishak, Southern, and Central Districts of Scallop
Registration Area H, no more than one scallop dredge may be operated at
one time from a vessel, and the opening of a dredge may not be more
than 6 ft (1.83 m) in width.
6. Scallops must be shucked by hand only. A shucking machine must
not be on board a vessel that is fishing for scallops or that has
scallops on board.
7. No vessel fishing for scallops in Federal waters may have aboard
more than 12 persons, exclusive of the Alaska Department of Fish and
Game (ADF&G) or NMFS observers.
Registration Areas
The management area covered under the FMP comprises the Federal
waters off Alaska south of the Bering Strait. The cooperative State-
Federal management approach outlined in the FMP requires that ADF&G and
NMFS use the same registration areas to manage the scallop fishery.
This proposed rule would establish nine scallop registration areas
composed of the Federal waters and adjacent State waters described in
each area. The nine scallop registration areas correspond to the
Southeastern, Yakutat, Prince William Sound, Cook Inlet, Kodiak, Alaska
Peninsula, Dutch Harbor, Adak, and Bering Sea portions of the State.
These scallop registration areas are identical to the nine State
scallop registration areas described in State regulations at 5 AAC
38.076(b). The Yakutat, Cook Inlet, and Kodiak scallop registration
areas would be subdivided into districts to allow for more precise
management of scallop resources in these areas.
Optimum Yield and Overfishing
The FMP establishes the Optimum Yield (OY) for the scallop fishery
as a numeric range based on the long-term productivity of the scallop
resource and is derived from historical catches since 1978. At present,
the FMP establishes an OY for the scallop fishery in Federal waters as
a range from zero to 1.1 million lb (0-499.0 mt) of shucked scallop
meat. Because NMFS and the State have agreed to manage the scallop
fishery within each registration area as a unit throughout Federal and
State waters, Amendment 1 also would raise the upper end of the OY
range to 1.8 million lb (816.5 mt) to reflect historical catches in
State waters.
Under the FMP, overfishing for scallops is defined as landings that
exceed OY. Overfishing could be defined as a fishing mortality rate for
scallops, based on existing life history data, but the lack of stock
assessment information (surveys, population age or size structure)
limits the use of a mortality rate-based overfishing definition at this
time. Therefore, Amendment 1 does not propose to change the definition
of ``overfishing'' contained in the FMP. As data collected from the
fishery and/or assessment surveys of the scallop resource are analyzed,
the definition of ``overfishing'' for scallops could be changed to a
fishing mortality rate basis.
Harvest Limits
The management measures proposed by this rule would allow NMFS to
specify annual scallop TACs and CBLs. In registration areas where the
scallop fishery has occurred traditionally, and where ADF&G has
established Guideline Harvest Levels (GHLs), NMFS would establish
annual TACs equal to a specified total weight of shucked scallop meat.
These areas include all or parts of Scallop Registration Areas A
(Southeastern), D (Yakutat), E (Prince William Sound), H (Cook Inlet),
K (Kodiak), and O (Dutch Harbor). In areas where bycatch of crab is a
concern, NMFS would specify annual CBLs for red king crab and Tanner
crab species. These areas include all or parts of Scallop Registration
Areas K (Kodiak), M (Alaska Peninsula), O (Dutch Harbor), Q (Bering
Sea), and R (Adak). In areas where an adequate historic scallop catch
record does not exist (areas M, Q, and R), TACs would not be specified
numerically. Instead, annual TACs in those areas would simply be equal
to the total weight of shucked scallop meat that could be harvested
under the specified CBLs, the sum of which cannot exceed a level equal
to the upper
[[Page 21433]]
end of the OY range minus the sum of the TACs in Registration Areas A,
D, E, H, K, and O. The total amount of scallops harvested under these
CBLs is expected to be within conservation limits and the total scallop
harvest off Alaska cannot exceed the upper end of the OY range of 1.8
million lb (816.5 mt). The CBLs are expected to limit total catch to a
fraction of what would be available under a TAC specified for scallops
while continuing to allow the fishing fleet adequate opportunity to
explore and harvest scallop stocks while protecting the crab resource.
Annual TACs and CBLs may be adjusted based on a review of the
biological condition of each scallop or crab bycatch species or
socioeconomic considerations that are consistent with the goals and
objectives of the FMP. Biological assessments will include, where
practicable, updated estimates of maximum sustainable yield and
acceptable biological catch; historical catch trends and current catch
statistics; assessments of alternative harvesting strategies; and
relevant information related to changes in scallop markets.
In Scallop Registration Area Q (Bering Sea), the Council
recommended that the annual red king crab bycatch limit be set within a
range of 500 to 3,000 crab. The Council also recommended that bycatch
limits for Tanner crab be specified annually based on a percentage of
the best available estimate of crab abundance, which is derived each
year from NMFS survey data. The Council approved the following
percentages for Tanner crab species: Chionoecetes opilio, 0.003176
percent and Chionoecetes bairdi, 0.13542 percent which would equate to
about 275,000 opilio and 257,000 bairdi crab based on the 1995 NMFS
crab survey data.
Procedure for Specifying TACs and CBLs
Amendment 1 proposes an annual process whereby the Council would
announce the State's most recent recommendations for scallop TACs and
CBLs and the bases for the recommendations to the public and provide
copies of the information upon request. Copies of the annual Stock
Assessment and Fishery Evaluation (SAFE) report would also be made
available at this time. The Council would notify the public of its
intent to develop final recommendations at a subsequent Council meeting
(usually April) and solicit public comment both before and during that
meeting. After considering the SAFE report, public comments, and other
relevant information, the Council would submit its TAC and CBL
recommendations along with the rationale and supporting information to
NMFS for review and implementation. As soon as practicable, after
receiving recommendations from the Council and ADF&G, NMFS would
publish in the Federal Register annual specifications of TAC and CBLs
for the following fishing year. To accommodate the annual specification
process, the scallop fishing year would be a 12-month period starting
July 1 and ending June 30 of the following year.
Time and Area Closures
Specific Federal waters are proposed to be closed to fishing for
scallops to prevent dredging in biologically critical habitat areas.
These include locations of high bycatch of crab, nursery areas for
young fish and shellfish, and walrus rookeries. Under this proposed
rule, all Federal waters that are currently closed to trawling for
groundfish with nonpelagic trawl gear for the purpose of habitat
protection, limiting crab bycatch or protecting walrus rookeries and
Stellar sea lion areas would also be closed to dredging for scallops.
These areas are described at Sec. 672.24 (d) and (e); Sec. 675.22 (a),
(b), and (f); and Sec. 675.24(g). These Federal closures would not
preclude the State from closing additional areas within State or
Federal waters to scallop fishing by State-registered vessels.
Inseason Management Authority
This management measure would allow NMFS to make inseason
adjustments such as the closure, extension, opening or reopening of a
season in all or part of the Federal waters of a scallop registration
area; and the adjustment of TACs or CBLs. Any inseason adjustment would
be made in accordance with the procedures for inseason adjustments in
the groundfish fisheries off Alaska set out at Sec. 672.22.
Fishing Seasons
Under this rule, fishing seasons in Federal waters would be
established that complement the fishing seasons currently established
by the State for each scallop registration area. The State established
fishing seasons in coordination with industry to focus the scallop
fishery during time periods when the quality of scallop meats is
highest and the bycatch of molting crab is lowest. Fishing for scallops
in the Federal waters off Alaska would be authorized from 0001 hours,
A.l.t., July 1, through 2400 hours, A.l.t., June 30 of the following
year, except as follows: (1) In Scallop Registration Areas A, D, and E,
the fishing season would run from 1200 hours, A.l.t., January 10
through 2400 hours, A.l.t., June 30; (2) in Scallop Registration Areas
K, M, O, Q, and R, the fishing season would run from 1200 hours,
A.l.t., July 1 through 1200 hours, A.l.t., February 15 of the following
year; and (3) in the Kamishak District of Scallop Registration Area H,
the fishing season would run from 1200 hours, A.l.t., August 15 through
1200 hours, A.l.t., October 31.
Observer Coverage Requirements
Except for vessels under 80 ft (24.4 m) length overall fishing in
Registration Area H (Cook Inlet), all vessels fishing for scallops
would be required to carry a NMFS or ADF&G-certified scallop observer
at all times. Operators of vessels required to carry an observer would
be required to meet all of the safety and conduct requirements
currently in place for the groundfish fisheries off Alaska set out at
Sec. 677.10 (c) and (g).
Proposed Total Allowable Catch Specifications
Table 1 shows proposed TACs for the period [insert effective date
of the final rule] through June 30, 1997. These proposed TACs reflect
the most recent GHLs established by the State. In the absence of
surveys, the State established the upper GHL for the Yakutat, Kodiak,
and Dutch Harbor Registration Areas as the average of the historic
catch from 1969 to 1994 minus years when no fishery and ``fishing-up
effect'' occurs. The term ``fishing-up effect'' is used to describe the
initial exploitation phase of a new fishery or removal of accumulated
stock. The recent development of scallop fisheries in Prince William
Sound and Cook Inlet necessitates use of methods other than averaging
historic catch data for estimating TACs. The proposed TACs for the
Prince William Sound and Cook Inlet Registration Areas are based on
estimates of exploitable biomass, a 10 percent harvest rate and a
conversion factor of 10 percent average meat weight to total animal
weight. Exploitable biomass for Prince William Sound is calculated
using area swept methods with information from fishermen on bed size,
average towing speed, and pounds per tow. Exploitable biomass for the
Kamishak District in Cook Inlet is also calculated using areas swept
methods, however, input data are from an ADF&G survey conducted in
1984.
Registration areas exhibiting sporadic catch and effort preclude
estimation of TACs by the above methods. To allow exploratory fishing
in these registration areas, the State established conservative CBLs
under which some exploratory scallop fishing may occur but at levels
that are not likely to overharvest the
[[Page 21434]]
scallop stocks in those areas. Similarly, the Council recommended a
conservation approach. In registration areas for which no specified
numerical amount is provided for the TAC in Table 1, the TAC would
equal the total weight of shucked scallop meats that can be harvested
under the CBLs specified for those areas. In no case would the total
amount harvested in all areas result in a harvest that would exceed the
upper end of the OY range.
The only known commercially viable scallop beds in Southeast Alaska
are found in the Fairweather Grounds in District 16. For purposes of
scallop management, this district has been shifted from the
Registration Area A (Southeastern) to the adjacent Registration Area D
(Yakutat). Because there are no other known commercially viable scallop
beds in Registration Area A, the TAC for this area is set at zero.
Vessel operators wishing to explore for new scallop beds in this area
would apply for an experimental fishing permit under Sec. 672.6 of this
part.
Under Amendment 1, scallops may be taken in Registration Areas D
(Yakutat) and E (Prince William Sound) from 1200 hours, A.l.t., January
10 through 2400 hours, A.l.t., June 30. Should NMFS approve Amendment 1
to the scallop FMP, the TACs and CBLs for these registration areas
would become available January 10, 1997.
Table 1.--Scallop TAC Amounts for the Period [Insert Effective Date of Final Rule] Through June 30, 1997 in
Pounds of Shucked Scallop Meats by Scallop Registration Area and District
[Kilograms in parentheses]\1\
----------------------------------------------------------------------------------------------------------------
Scallop registration area TAC
----------------------------------------------------------------------------------------------------------------
Registration Area A (Southeastern)......................... Zero.
Registration Area D (Yakutat):
District 16............................................ 35,000 (15,880 kg).
All other districts.................................... 250,000 (113,430 kg).
Registration Area E (Prince William Sound)................. 50,000 (22,686 kg).
Registration Area H (Cook Inlet):
Kamishak District...................................... 20,000 (9,074 kg).
Registration Area K (Kodiak)............................... 400,000 (181,488 kg).
Registration Area O (Dutch Harbor)......................... 170,000 (77,132 kg).
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\1\ Scallop TAC amounts for Registration Areas M, Q, R and all other districts in Registration Area H (other
than the Kamishak District) equal the total weight of shucked scallop meat taken under the CBLs established
for those areas in Table 2, not to exceed a total of 875,000 lb (396.9 mt).
Proposed Crab Bycatch Limits
Table 2 shows proposed CBLs for the period [insert effective date
of final rule] through June 30, 1997. These proposed CBLS reflect the
most recent CBLs established by the State. In Registration areas or
districts where red king crab or tanner crab abundance is sufficient to
support a commercial crab fishery, the State established CBLs for the
scallop fishery at 1 percent of the most recent estimate of red king
crab or Tanner crab abundance. In registration areas or districts where
red king crab or tanner crab abundance is insufficient to support a
commercial fishery, the State established CBLs at 0.5 percent of the
most recent estimate of red king crab or Tanner crab abundance.
In the Bering Sea Registration Area, the Council recommended that
the annual red king crab CBL be set within a range of 500 to 3,000
crab. Because red king crab abundance in the Bering Sea is at an all
time low, NMFS proposes a CBL at the lower end of the Council's range,
or 500 crab. Proposed Tanner Crab CBLs for the Bering Sea Registration
Area are based on percentages of total crab abundance approved by the
Council.
Table 2.--Crab Bycatch Limits for the Period [Insert Effective Date of
Final Rule] through June 30, 1997 in Numbers of Crabs by Scallop
Registration Area and District
------------------------------------------------------------------------
Scallop registration area Red king C. bairdi C. opilio
------------------------------------------------------------------------
Area E (Prince William Sound).... ........... 630 ...........
Area H (Cook Inlet):
Kamishak District............ 40 15,900 ...........
Outer/Eastern Districts...... 98 2,170 ...........
Area K (Kodiak):
Shelikof District............ 22 16,100 ...........
Northeast District........... 66 130,000 ...........
Area M (Alaska Peninsula)........ 435 22,800 ...........
Area O (Dutch Harbor)............ 10 10,700 ...........
Area Q (Bering Sea).............. 500 257,000 275,000
Area R (Adak).................... 50 10,000 ...........
------------------------------------------------------------------------
Classification
Section 304(a)(1)(D) of the Magnuson Act requires NMFS publish
proposed regulations within 15 days of receipt of an FMP amendment and
regulations from a Council. At this time NMFS has not determined that
the FMP amendment that this rule would implement is consistent with the
national standards, other provisions of the Magnuson Act, and other
applicable laws. NMFS, in making that determination, will take into
account the data, views, and comments received during the comment
period.
This proposed rule has been determined to be not significant for
the purposes of E.O. 12866.
An RIR was prepared for this proposed rule that describes the
management background, the purpose and need for action, the management
action alternatives, and the social
[[Page 21435]]
impacts of the alternatives. The RIR also estimates the total number of
small entities affected by this action and analyzes the economic impact
on those small entities. Copies of the RIR can be obtained from NMFS
(see ADDRESSES).
The Council has prepared an IRFA as part of the RIR, which
describes the impact this proposed rule would have on small entities,
if adopted. The analysis shows that the economic effects of this
proposed rule to the regulated community would be significant and
positive in that it would repeal the closure of Federal waters to
fishing for scallops. In 1994, 86 percent of the scallops harvested off
Alaska were taken from Federal waters and 11 of the 16 vessels
harvesting scallops participated in no other fishery. A copy of this
analysis is available from the Council (see ADDRESSES).
List of Subjects in 50 CFR Part 673
Fisheries.
Dated: May 6, 1996.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 673 is
proposed to be amended as follows:
PART 673--SCALLOP FISHERY OFF ALASKA
1. Part 673 is revised to read as follows:
Sec.
673.1 Purpose and scope.
673.2 Definitions.
673.3 Prohibitions.
673.4 Gear limitations.
673.5 Registration areas.
673.6 General limitations.
673.7 Inseason adjustments.
673.8 Seasons.
673.9 Observer requirements.
Authority: 16 U.S.C. 1801 et seq.
Sec. 673.1 Purpose and scope.
(a) These regulations implement the Fishery Management Plan for the
Scallop Fishery off Alaska (FMP). The FMP was prepared by the North
Pacific Fishery Management Council (Council) under the Magnuson Act.
(b) Regulations in this part govern commercial fishing for scallops
in the Federal waters off Alaska.
(c) State of Alaska laws that are consistent with the regulations
in this part are not preempted for vessels registered under the laws of
the State fishing for scallops in the Federal waters off Alaska.
Sec. 673.2 Definitions.
In addition to the definitions in the Magnuson Act and in
Secs. 620.2 and 672.2 of this chapter, the terms used in this part have
the following meanings:
CBL means crab bycatch limit.
Scallop(s) means any scallop species of the family Pectinidae,
including without limitation weathervane scallops (Patinopectin
caurinus).
Scallop dredge means gear consisting of a mouth frame attached to a
holding bag constructed of metal rings or any other modification to
this design that can be or is used in the harvest of scallops, or the
taking of scallops by means of such gear.
Shucking machine means any mechanical device that automatically
removes the meat or the adductor muscle from the shell.
Sec. 673.3 Prohibitions.
In addition to the general prohibitions specified in Sec. 620.7 of
this chapter, it is unlawful for any person to violate any provision of
this part.
Sec. 673.4 Gear limitations.
(a) The inside ring diameter on all dredges used or carried by a
vessel fishing for weathervane scallops (Patinopectin caurinus) must be
4 inches (10.16 cm) or larger.
(b) The inside ring diameter on all dredges used or carried by a
vessel fishing for scallops other than weathervane scallops must be 3
inches (7.62 cm) or larger.
(c) No person may use chafing gear or other devices that decrease
the legal inside ring diameter of a scallop dredge.
(d) Except as provided in paragraph (e) of this section, no more
than two scallop dredges may be operated at one time from a vessel, and
the opening of a scallop dredge must be equal to or less than 15 ft
(4.57 m) wide.
(e) In the Kamishak, Southern, and Central Districts of Scallop
Registration Area H defined under Sec. 673.5, no more than one scallop
dredge may be operated at one time from a vessel, and the opening of a
dredge may not be more than 6 ft (1.83 m) in width.
(f) Scallops must be shucked by hand only. A shucking machine must
not be on board a vessel that is fishing for scallops or that has
scallops on board.
(g) No vessel fishing for scallops in Federal waters may have
aboard more than 12 persons, exclusive of ADF&G or NMFS observers.
Sec. 673.5 Registration areas.
For the purpose of managing the scallop fishery, the Federal waters
off Alaska and adjacent State waters are divided into nine scallop
registration areas. Three scallop registration areas are further
subdivided into districts. The scallop registration areas and districts
are defined as follows:
(a) Registration Area A (Southeastern) has as its southern boundary
the international boundary at Dixon Entrance, and as its northern
boundary Loran-C line 7960-Y-29590, which intersects the western tip of
Cape Fairweather at 58 deg.47'58'' N. lat., 137 deg.56'30'' W. long.,
except for ADF&G District 16 defined under paragraph (b) of this
section.
(b) Registration Area D (Yakutat) has as its western boundary the
longitude of Cape Suckling (143 deg.53' W. long.), and as its southern
boundary Loran-C line 7960-Y-29590, which intersects the western tip of
Cape Fairweather at 58 deg.47'58'' N. lat., 137 deg.56'30'' W. long.,
and ADF&G District 16 defined as all waters north of a line projecting
west from the southernmost tip of Cape Spencer and south of a line
projecting southwest from the westernmost tip of Cape Fairweather.
(c) Registration Area E (Prince William Sound) has as its western
boundary the longitude of Cape Fairfield (148 deg.50' W. long.), and
its eastern boundary the longitude of Cape Suckling (143 deg.53' W.
long.).
(d) Registration Area H (Cook Inlet) has as its eastern boundary
the longitude of Cape Fairfield (148 deg.50' W. long.) and its southern
boundary the latitude of Cape Douglas (58 deg.52' N. lat.).
(1) Northern District: North of a line extending from Boulder Point
at 60 46'23'' N. lat., to Shell Platform C, then to a point on the west
shore at 60 deg.46'23'' N. lat.
(2) Central District: All waters between a line extending from
Boulder Point at 60 deg.46'23'' N. lat., to Shell Platform C, to a
point on the west shore at 60 deg.46'23'' N. lat., and the latitude of
Anchor Point Light (59 deg.46'12'' N. lat.).
(3) Southern District: All waters enclosed by a line from Anchor
Point Light west to 59 deg.46'12'' N. lat., 152 deg.20' W. long., then
south to 59 deg.03'25'' N. lat., 152 deg.20' W. long., then in a
northeasterly direction to the tip of Cape Elizabeth at 59 deg.09'30''
N. lat., 151 deg.53' W. long., then from the tip of Cape Elizabeth to
the tip of Point Adam at 59 deg.15'20'' N. lat., 151 deg.58'30'' W.
long.
(4) Kamishak Bay District: All waters enclosed by a line from
59 deg.46'12'' N. lat., 153 deg.00'30'' W. long., then east to
59 deg.46'12'' N. lat., 152 deg.20' W. long., then south to
59 deg.03'25'' N. lat., 152 deg.20' W. long., then southwesterly to
Cape Douglas (58 deg.52' N. lat.). The seaward boundary of the Kamishak
Bay District is 3 nautical miles seaward from the shoreline between a
point on the west shore of Cook Inlet at 59 deg.46'12'' N. lat.,
153 deg.00'30'' W. long., and Cape Douglas at 58 deg.52' N. lat.,
153 deg.15' W. long., including a line three nautical miles
[[Page 21436]]
seaward from the shorelines of Augustine Island and Shaw Island, and
including the line demarking all state waters shown on NOAA chart
16640, 21st Ed., May 5, 1990.
(5) Barren Island District: All waters enclosed by a line from Cape
Douglas (58 deg.52' N. lat.) to the tip of Cape Elizabeth at
59 deg.09'30'' N. lat., 151 deg.53' W. long., then south to 58 deg.52'
N. lat., 151 deg.53' W. long., then west to Cape Douglas.
(6) Outer District: All waters enclosed by a line from the tip of
Point Adam to the tip of Cape Elizabeth, then south to 58 deg.52' N.
lat., 151 deg.53' W. long., then east to the longitude of Aligo Point
(149 deg.44'33'' W. long.), then north to the tip of Aligo Point.
(7) Eastern District: All waters east of the longitude of Aligo
Point (149 deg.44'33'' W. long.), west of the longitude of Cape
Fairfield (148 deg.50' W. long.), and north of 58 deg.52' N. lat.
(e) Registration Area K (Kodiak) has as its northern boundary the
latitude of Cape Douglas (58 deg.52' N lat.), and as its western
boundary the longitude of Cape Kumlik (157 deg.27' W. long.).
(1) Northeast District: All waters northeast of a line extending
168 deg. from the easternmost tip of Cape Barnabas, east of a line from
the northernmost tip of Inner Point to the southernmost tip of Afognak
Point, east of 152 deg.30' W. long. in Shuyak Strait, and east of the
longitude of the northernmost tip of Shuyak Island (152 deg.20' W.
long.).
(2) Southeast District: All waters southwest of a line extending
168 deg. from the easternmost tip of Cape Barnabas and east of a line
extending 222 deg. from the southernmost tip of Cape Trinity.
(3) Southwest District: All waters west of a line extending
222 deg. from the southernmost tip of Cape Trinity, south of a line
from the westernmost tip of Cape Ikolik to the southernmost tip of Cape
Kilokak and east of the longitude of Cape Kilokak (156 deg.19' W.
long.).
(4) Semidi Island District: All waters west of the longitude of
Cape Kilokak at 156 deg.19' W. long. and east of the longitude of Cape
Kumlik at 157 deg.27' W. long.
(5) Shelikof District: All waters north of a line from the
westernmost tip of Cape Ikolik to the southernmost tip of Cape Kilokak,
west of a line from the northernmost tip of Inner Point to the
southernmost tip of Afognak Point, west of 152 deg.30' W. long., in
Shuyak Strait, and west of the longitude of the northernmost tip of
Shuyak Island (152 deg.20' W. long.).
(f) Registration Area M (Alaska Peninsula) has as its eastern
boundary the longitude of Cape Kumlik (157 deg.27' W. long.), and its
western boundary the longitude of Scotch Cap Light. The registration
area also includes all waters of Bechevin Bay and Isanotski Strait
south of a line from the easternmost tip of Chunak Point to the
westernmost tip of Cape Krenitzen.
(g) Registration Area O (Dutch Harbor) has as its northern boundary
the latitude of Cape Sarichef (54 deg.36' N. lat.), as its eastern
boundary the longitude of Scotch Cap Light, and as its western boundary
171 deg.W. long., excluding the waters of Statistical Area Q.
(h) Registration Area Q (Bering Sea) has as its southern boundary a
line from Cape Sarichef (54 deg.36' N. lat.), to 54 deg.36' N. lat.,
171 deg.W. long., to 55 deg.30' N. lat., 171 deg.W. long., to
55 deg.30' N. lat., 173 deg.30' E. long., as its northern boundary the
latitude of Point Hope (68 deg.21' N. lat.).
(i) Registration Area R (Adak) has as its eastern boundary 171 deg.
W. long., and as its northern boundary 55 deg.30' N. lat.
Sec. 673.6 General limitations.
(a) Harvest limits--(1) General. NMFS will establish total
allowable catch (TAC) amounts and CBLs for the scallop fishery off
Alaska according to the procedures described under this section. The
total annual TAC amount for scallops off Alaska will be established
within the OY range of 0-1.8 million lb (0-815.5 mt) of shucked scallop
meats.
(2) Annual TACs. (i) The annual TACs for scallops in Registration
Areas A, D, E, H, K, and O will be established as a weight in pounds of
shucked scallop meats based on a review of the following:
(A) Assessments of the biological condition of each scallop
species. Assessments will include, where practicable, updated estimates
of MSY and ABC; historical catch trends and current catch statistics,
reviews of alternative harvesting strategies; and relevant information
relating to changes in scallop markets.
(B) Socioeconomic considerations that are consistent with the goals
and objectives of the FMP.
(ii) The annual TACs in Registration Areas M, Q, and R will equal
the weight in pounds of shucked scallop meats harvested under CBLs
specified for these areas under paragraph (3) of this section. The sum
of TACs in Registration Areas M, Q, and R may not exceed an amount
equal to the upper end of the OY range minus the sum of the TACs in
Registration Areas A, D, E, H, K, and O.
(iii) Annual scallop TACs will be specified for the 12-month time
period extending from July 1 through June 30 of the following year. An
annual TAC amount is available for harvest only for the registration
area or district specified, only during the applicable season set out
in Sec. 673.8, and only if no closure or other restriction or
limitation is applicable.
(3) Crab bycatch limits. (i) CBLs may be specified for red king
crab and Tanner crab species for any registration area or district.
(ii) Except as provided under paragraph (a)(3)(iii) of this
section, annual CBLs will be based on the biological condition of each
crab species, historical bycatch rates in the scallop fishery, and
other socioeconomic considerations that are consistent with the goals
and objectives of the FMP.
(iii) Annual CBLs in Registration Area Q will equal the following
amounts:
(A) The CBL for red king crab caught while conducting any fishery
for scallops will be specified within the range of 500 to 3,000 crab
based on the considerations listed in paragraph (a)(3)(ii) of this
section.
(B) The CBL for Chionoecetes opilio Tanner crab caught while
conducting any fishery for scallops is 0.003176 percent of the best
available estimate of C. opilio abundance in Registration Area Q.
(C) The CBL for Chionoecetes bairdi Tanner crab caught while
conducting any fishery for scallops is 0.13542 percent of the best
available estimate of C. bairdi abundance in Registration Area Q.
(iv) Annual CBLs will be specified for the 12-month time period
from July 1 through June 30 of the following year. An annual CBL may be
utilized only for the registration area or district specified, only if
any applicable TAC amount is available for harvest, only during the
applicable season set out in Sec. 673.8, and only if no closure or
other limitation or restriction is applicable.
(b) Specifications. The following procedure is established for
specifying TAC amounts and CBLs:
(1) On an annual basis, prior to the April Council meeting, the
Council will distribute a summary of the State's most recent TAC and
CBL recommendations and supporting documentation to the public through
its mailing list, as well as provide copies of the recommendations,
documentation, and the annual Stock Assessment and Fishery Evaluation
(SAFE) report to the public upon request. The Council will notify the
public of its intent to develop final recommendations at the April
Council meeting and solicit public comment both before and during the
April Council meeting.
(2) Following the April Council meeting, the Council will submit
its TAC and CBL recommendations along
[[Page 21437]]
with rationale and supporting information to NMFS for review and
implementation.
(3) As soon as practicable after receiving recommendations from the
Council, NMFS will publish in the Federal Register annual
specifications of TAC amounts and CBLs for the succeeding 12-month
period extending from July 1 through June 30 of the following year.
(c) Notices of closure. (1) If the Director, Alaska Region, NMFS,
determines that a TAC or CBL specified under paragraphs (a) and (b) of
this section has been or will be reached, NMFS will publish
notification in the Federal Register prohibiting the taking and
retention of scallops in the Federal waters of the registration area or
district where the notification is applicable.
(2) It is unlawful for any person to conduct any fishing for
scallops contrary to the notification of closure issued pursuant to
this paragraph.
(d) Closed areas. It is unlawful for any person to dredge for
scallops in any Federal waters off Alaska that are closed to fishing
with trawl gear or non pelagic trawl gear under Secs. 672.24(d),
672.24(e), 675.22(a) 675.22(b), 674.22(f), and 675.24(g) of this
chapter.
Sec. 673.7 Inseason adjustments.
(a) Inseason adjustments may be issued by NMFS to implement the
closure, extension, opening, or reopening of a season in all or part of
a scallop registration area; and the adjustment of TAC amounts or CBLs.
(b) Determinations for any inseason adjustment authorized under
paragraph (a) of this section must be consistent with Secs. 672.22 (a)
and (b) of this chapter.
(c) Procedures for making inseason adjustments are specified at
Sec. 672.22(c) of this chapter.
(d) It is unlawful for any person to conduct any fishing for
scallops contrary to an inseason adjustment issued pursuant to this
section.
Sec. 673.8 Seasons.
(a) Fishing for scallops in the Federal waters off Alaska is
authorized from 0001 hours, A.l.t., July 1, through 2400 hours, A.l.t.,
June 30, subject to the other provisions of this part, except as
provided in paragraphs (b) through (d).
(b) Scallops may only be taken in the Federal waters of Scallop
Registration Areas A, D, and E from 1200 hours, A.l.t., January 10
through 2400 hours, A.l.t., June 30, subject to the other provisions of
this part.
(c) Scallops may only be taken in the Federal waters of Scallop
Registration Areas K, M, O, Q, and R from 1200 hours, A.l.t., July 1
through 1200 hours, A.l.t., February 15 of the following year, subject
to the other provisions of this part.
(d) Scallops may only be taken in the Federal waters of the
Kamishak District of Scallop Registration Area H from 1200 hours,
A.l.t., August 15 through 1200 hours, A.l.t., October 31, subject to
the other provisions of this part.
Sec. 673.9 Observer requirements.
(a) Except as provided in paragraph (c) of this section, vessels
must carry a NMFS-certified or ADF&G-certified scallop observer at all
times while fishing for scallops in Federal waters.
(b) An operator of a vessel required to carry an observer must meet
all of the requirements specified at Secs. 677.10(c) and 677.10(g) of
this chapter.
(c) Vessels less than 80 ft (24.4 m) length overall are exempt from
the requirements of this section while fishing for scallops in the
Federal waters of Registration Area H.
[FR Doc. 96-11773 Filed 5-07-96; 3:34 pm]
BILLING CODE 3510-22-W
Complete official Federal Register PDF
FR Doc. 96-11772 New England Fishery Management Council; Public Hearing
[Federal Register Volume 61, Number 92 (Friday, May 10, 1996)]
[Proposed Rules]
[Pages 21430-21431]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11772]
=======================================================================
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[[Page 21431]]
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 650
[I.D. 042996G]
New England Fishery Management Council; Public Hearing
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Public hearing; request for comments.
-----------------------------------------------------------------------
SUMMARY: The New England Fishery Management Council (Council) will hold
a public hearing to seek input on Amendment 5 to the Atlantic Sea
Scallop Fishery Management Plan (FMP). Amendment 5 would close an area
to some fishing activities over an 18-month period to allow an
experiment and demonstration project involving sea scallop research,
resource enhancement, and aquaculture.
DATES: Written comments must be received on or before June 4, 1996. The
hearing will be held on Friday, May 17, 1996, at 1 p.m.
ADDRESSES: Requests for special accommodations should be addressed to
the New England Fishery Management Council, 5 Broadway, Saugus, MA
01906-1097. Copies of proposed Amendment 5 will be available at the
hearing, but may be obtained in advance by calling or writing the
Council office.
The hearing will take place at the University of Massachusetts
Cranberry Experiment Station, Glen Charlie Road, Wareham, MA;
telephone: (508) 295-2212.
FOR FURTHER INFORMATION CONTACT: Douglas G. Marshall, Executive
Director, New England Fishery Management Council, (671) 231-0422.
SUPPLEMENTARY INFORMATION: Fishermen and any other interested members
of the public are encouraged to attend this hearing to review a
proposal to amend the FMP. Amendment 5 would establish a temporary
experimental use area in Federal waters approximately 12 miles (22.22
km) southwest of Martha's Vineyard. During the 18-month-long project,
the area would be used to determine whether it is feasible to enhance
wild stocks through bottom seeding, and to study the interactions of
the harvesting gear, sea scallops and their habitat, open-ocean pen
engineering, and the growth rates of transferred juvenile brood stock
in both pen culture and open bottom culture.
Otter trawling, mid-water trawling and the use of other mobile
gear, shellfish dredging and gillnetting would be prohibited within the
9 square-mile (23.31 square-km) site. Other fishing gear such as
lobster traps and longline gear would be controlled but allowed within
the area and the operation of hand gear would not be restricted. If the
project is approved, the Council will amend the FMP accordingly.
Discussion of this issue will be included on the agenda at the
Council's June 5-6, 1996, meeting at the King's Grant Inn, Danvers, MA.
There will be an opportunity for public comment at that time.
This meeting is physically accessible to people with disabilities.
Requests for sign language interpretation or other auxiliary aids
should be directed to Douglas G. Marshall (see ADDRESSES) at least 5
days prior to the meeting date.
Authority: 16 U.S.C. 1801 et seq.
Dated: May 6, 1996.
Richard W. Surdi,
Acting Director, Office of Fisheries Conservation and Management,
National Marine Fisheries Service.
[FR Doc. 96-11772 Filed 5-9-96; 8:45 am]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-11768 Addition of Commercial Espionage to Mail Cover Regulations
[Federal Register Volume 61, Number 92 (Friday, May 10, 1996)]
[Proposed Rules]
[Page 21404]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11768]
=======================================================================
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POSTAL SERVICE
39 CFR Part 233
Addition of Commercial Espionage to Mail Cover Regulations
AGENCY: Postal Service.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This proposed rule will amend the United States Postal
Service's mail cover regulations to add commercial espionage by foreign
sources as a criminal activity for which national security mail covers
may be authorized. This change is effected by expanding the definition
of ``protection of the national security'' found at 39 CFR 233.3(c)(9)
to include commercial espionage.
DATES: Comments must be received on or before June 10, 1996.
ADDRESSES: Written comments should be mailed or delivered to Counsel,
Postal Inspection Service, 475 L'Enfant Plaza SW, Room 3411,
Washington, DC 20260-2181.
FOR FURTHER INFORMATION CONTACT: Henry J. Bauman, Counsel, Postal
Inspection Service, (202) 268-4415.
SUPPLEMENTARY INFORMATION: Postal Service regulations on mail covers
are published in Title 39 of the Code of Federal Regulations (CFR) at
Sec. 233. Paragraph (c)(9) of Sec. 233.3 currently defines ``protection
of the national security'' as ``actual or potential threats to the
security of the United States of America by a foreign power or its
agents.'' This definition will be expanded to include commercial
espionage.
Commercial espionage by foreign sources has become an increasing
threat to the economic well-being and ability of the United States to
compete in the international market. For the purposes of this proposed
revision, ``commercial espionage'' is defined as either ``economic
espionage'' or ``industrial espionage.'' According to the Federal
Bureau of Investigation (FBI) white paper, FBI Strategy to Address the
Problem of Economic Espionage and Industrial Espionage (Washington, DC:
FBI Headquarters, undated), ``economic espionage'' is ``government-
directed, sponsored, or coordinated intelligence activity, which may or
may not constitute violation of the law, conducted for the purpose of
enhancing that country's or another country's economic competitiveness
by the use of the information by the foreign government or by providing
it to a foreign business entity thereby giving that entity a
competitive advantage in the marketplace.'' ``Industrial espionage'' is
defined by the FBI as ``individual or private business entity
sponsorship or coordination of intelligence activity conducted for the
purpose of enhancing a private business and its competitive advantage
in the marketplace, which is a violation of law.''
Revising the Postal Service's national security mail cover
regulations to include commercial espionage will enhance the ability of
law enforcement to protect national security.
List of Subjects in 39 CFR Part 233
Administrative practice and procedures, Banks and banking, Credit,
Crime, Law Enforcement, Postal Service, Privacy, Seizure and
forfeiture.
Accordingly, 39 CFR 233 is proposed to be amended as set forth
below.
PART 233--INSPECTION SERVICE/INSPECTOR GENERAL AUTHORITY
1. The authority citation for part 233 continues to read as
follows:
Authority: 39 U.S.C. 101, 401, 402, 403, 404, 406, 410, 411,
3005(e)(1); 12 U.S.C. 3401-3422; 18 U.S.C. 981, 1956, 1957, 2254,
3061; 21 U.S.C. 881; Inspector General Act of 1978, as amended (Pub.
L. No. 95-452, as amended), 5 U.S.C. App.3.
2. Paragraph (c)(9) of Sec. 233.3 is revised to read as follows:
Sec. 233.3 Mail covers.
* * * * *
(c) * * *
(9) Protection of the national security means to protect the United
States from any of the following actual or potential threats to its
security by a foreign power or its agents:
(i) An attack or other grave, hostile act;
(ii) Sabotage, or international terrorism; or
(iii) Clandestine intelligence activities, including commercial
espionage.
* * * * *
Stanley F. Mires,
Chief Counsel, Legislative.
[FR Doc. 96-11768 Filed 5-9-96; 8:45 am]
BILLING CODE 7710-12-P
Complete official Federal Register PDF
FR Doc. 96-11760 Radio Broadcasting Services; Smith, NV
[Federal Register Volume 61, Number 92 (Friday, May 10, 1996)]
[Proposed Rules]
[Pages 21425-21426]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11760]
=======================================================================
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MM Docket No. 96-103; RM-8794]
Radio Broadcasting Services; Smith, NV
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Commission requests comments on a petition filed by
Donegal Enterprises, Inc., seeking the allotment of Channel 271C3 to
Smith, Nevada, as the community's first local aural service. Channel
271C3 can be allotted to Smith in compliance with the Commission's
minimum distance separation requirements with a site restriction of 3.9
kilometers (2.4 miles) east, at coordinates 38-47-53 NL; 119-16-55 WL,
to avoid a short-spacing to Station KSSJ, Channel 270B, Shingle
Springs, CA.
[[Page 21426]]
DATES: Comments must be filed on or before June 27, 1996, and reply
comments on or before July 12, 1996.
ADDRESSES: Federal Communications Commission, Washington, DC 20554. In
addition to filing comments with the FCC, interested parties should
serve the petitioner, or its counsel or consultant, as follows: Patrick
A. Mulreany, President, Donegal Enterprises, Inc., P.O. Box 123, Smith,
Nevada 89430 (Petitioner).
FOR FURTHER INFORMATION CONTACT: Leslie K. Shapiro, Mass Media Bureau,
(202) 418-2180.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's
Notice of Proposed Rule Making, MM Docket No. 96-103, adopted April 22,
1996, and released May 6, 1996. The full text of this Commission
decision is available for inspection and copying during normal business
hours in the FCC Reference Center (Room 239), 1919 M Street, NW.,
Washington, DC. The complete text of this decision may also be
purchased from the Commission's copy contractor, International
Transcription Services, Inc., (202) 857-3800, 2100 M Street, NW., Suite
140, Washington, DC 20037.
Provisions of the Regulatory Flexibility Act of 1980 do not apply
to this proceeding.
Members of the public should note that from the time a Notice of
Proposed Rule Making is issued until the matter is no longer subject to
Commission consideration or court review, all ex parte contacts are
prohibited in Commission proceedings, such as this one, which involve
channel allotments. See 47 CFR 1.1204(b) for rules governing
permissible ex parte contacts.
For information regarding proper filing procedures for comments,
see 47 CFR 1.415 and 1.420.
List of Subjects in 47 CFR Part 73
Radio broadcasting.
Federal Communications Commission.
Andrew J. Rhodes,
Acting Chief, Allocations Branch, Policy and Rules Division, Mass Media
Bureau.
[FR Doc. 96-11760 Filed 5-9-96; 8:45 am]
BILLING CODE 6712-01-F
Complete official Federal Register PDF
FR Doc. 96-11759 Approval and Promulgation of Implementation Plan; Wisconsin
[Federal Register Volume 61, Number 92 (Friday, May 10, 1996)]
[Proposed Rules]
[Pages 21412-21414]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11759]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[WI67-01-7276; FRL-5501-5]
Approval and Promulgation of Implementation Plan; Wisconsin
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This notice proposes approval of a revision to the Wisconsin
State Implementation Plan (SIP) to meet the requirements of the EPA
transportation conformity rule set forth at 40 CFR part 51 subpart T--
Conformity to State or Federal Implementation Plans of Transportation
Plans, Programs, and Projects Developed, Funded or Approved Under Title
23 U.S.C. or the Federal Transit Act. The transportation conformity SIP
revision will enable the State of Wisconsin to implement and enforce
the Federal transportation conformity requirements at the State or
local level in accordance with 40 CFR 51.396(b). This notice of
approval is limited only to 40 CFR part 51, subpart T (transportation
conformity). SIP revisions submitted under 40 CFR part 51, subpart W,
relating to conformity of general Federal actions, will be addressed in
a separate EPA notice. This notice provides the rationale for the
proposed approval and other information.
DATES: Comments on this proposed action must be received by June 10,
1996.
ADDRESSES: Written comments should be sent to: Carlton T. Nash, Chief,
Regulation Development section, Air Programs Branch (AR-18J), USEPA,
Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604-3590.
Copies of the SIP revision, public comments and EPA's responses are
available for inspection at the following address: United States
Environmental Protection Agency, Region 5, Air and Radiation Division,
77 West Jackson Boulevard, Chicago, Illinois 60604. (It is recommended
that you telephone Michael Leslie at (312) 353-6680 before visiting the
Region 5 Office.)
A copy of this SIP revision is available for inspection at the
following location: Office of Air and Radiation (OAR) Docket and
Information Center (Air Docket 6102), room M1500, United States
Environmental Protection Agency, 401 M Street S.W., Washington, D.C.
20460, (202) 260-7548.
FOR FURTHER INFORMATION CONTACT: Michael G. Leslie, Regulation
Development Section (AR-18J), Air Programs Branch, Air and Radiation
Division, United States Environmental Protection Agency, Region 5, 77
West Jackson Boulevard, Chicago, Illinois 60604, Telephone Number (312)
353-6680.
SUPPLEMENTARY INFORMATION:
I. Background
Section 176(c) of the Clean Air Act (CAA), 42 U.S.C. Sec. 7506(c),
provides that no Federal department, agency, or instrumentality shall
engage in, support in any way or provide financial assistance for,
license or permit, or approve any activity which does not conform to a
SIP which has been approved or promulgated pursuant to the CAA.
Conformity is defined as conformity to the SIP's purpose of eliminating
or reducing the severity and number of violations of the National
Ambient Air Quality Standards and achieving expeditious attainment of
such standards, and that such activities will not: (1) Cause or
contribute to any new violation of any standard in any area, (2)
increase the frequency or severity of any existing violation of any
standard in any area, or (3) delay timely attainment of any standard or
any required interim emission reductions or other milestones in any
area.
Section 176(c)(4)(A) of the CAA requires EPA to promulgate criteria
and procedures for determining conformity of all Federal actions
(transportation and general) to applicable SIPs. The EPA published the
final transportation conformity rules in the November 24, 1993, Federal
Register and codified them at 40 CFR part 51 subpart T--Conformity to
State or Federal Implementation Plans of Transportation Plans,
Programs, and Projects Developed, Funded or Approved Under Title 23
U.S.C. or the Federal Transit Act. The conformity rules require States
and local agencies to adopt and submit to the EPA a transportation
conformity SIP revision not later than November 24, 1994. This notice
does not address the conformity requirements applicable to general
Federal actions which are set forth at 40 CFR part 51 subpart W. The
EPA will take action on SIP revisions
[[Page 21413]]
relating to those requirements in a separate notice.
II. Evaluation of the State's Submittal
Pursuant to the requirements under section 176(c)(4)(C) of the CAA,
the Wisconsin Department of Natural Resources (WDNR) submitted a SIP
revision to the EPA on November 23, 1994, and supplemented this
submittal on June 14, 1995. In its submittal, the State included
provisions required by the EPA transportation conformity rule (40 CFR
part 51, subpart T), and Memoranda of Agreements (MOA) between the
affected agencies.
Transportation conformity is required for all areas which are
designated nonattainment or maintenance for any transportation related
criteria pollutants. The State of Wisconsin currently has 11 counties
designated as nonattainment for ozone. The areas for which
transportation conformity determinations are required and which are
included as part of Wisconsin's submittal include the following
nonurbanized counties: Door, Keewaunee, and Manitowoc. The urbanized
areas include: Milwaukee-Racine Consolidated Metropolitan Statistical
Area (MSA) (Kenosha, Milwaukee, Ozaukee, Racine, Walworth, Washington,
and Waukesha Counties), and Sheboygan MSA (Sheboygan County).
The WDNR held a public hearing on its transportation conformity
submittal on January 11 and 12, 1995. Minor modifications were made in
response to the comments and addressed in the final submittal.
The consultation section of the EPA transportation conformity rule
(40 CFR 51.402) requires that the SIP revision include procedures for
interagency consultation among the Federal, State, and local agencies
and for resolution of conflicts in accordance with the criteria set
forth in 40 CFR 51.402. Specifically, the SIP revision must include
processes and procedures to be undertaken by Metropolitan Planning
Organizations (MPO), State departments of transportation, and the
United States Department of Transportation (USDOT) with State and local
air quality agencies and EPA before making a conformity determination,
and by State and local air quality agencies and EPA with MPOs, State
departments of transportation, and USDOT in developing applicable SIPs.
In order to satisfy these requirements, the WDNR developed an ad
hoc multi-agency committee, which included representatives from the
WDNR, Wisconsin Department of Transportation (WDOT), USDOT, and MPOs.
This group developed the final consultation rule by integrating the
requirements of 40 CFR 51.402 and 23 CFR part 450 with the local
procedures and processes. Wisconsin's final consultation rule outlines
the roles and responsibilities of each of the affected agencies for the
process for determining conformity. The consultation rule further
outline the procedures for conflict resolution in the transportation
conformity process, for implementation of the public participation
process, and for the submission of documentation relating to a
conformity determination. The conformity SIP revision submitted by
Wisconsin has adequately addressed all provisions of 40 CFR 51.402 and
thus meets the EPA SIP requirements.
Section 51.396(c) of the transportation conformity rule states that
to be approvable by the EPA, the SIP revision submitted to EPA must
address all requirements of the transportation conformity rule in a
manner which gives them full legal effect. In particular, the revision
must incorporate the provisions of the following sections of the rule
in verbatim form, except insofar as needed to give effect to a stated
intent in the revision to establish criteria and procedure more
stringent than the requirements stated in these sections: 51.392,
51.394, 51.398, 51.400, 51.404, 51.410, 51.412, 51.414, 51.416, 51.418,
51.420, 51.422, 51.424, 51.426, 51.428, 51.430, 51.432, 51.434, 51.436,
51.438, 51.440, 51.442, 51.444, 51.446, 51.448, 51.450, 51.460, and
51.462. The State of Wisconsin submittal incorporated all of the above
sections in verbatim form, except for Secs. 51.424, 51.434, 51.442,
51.444, and 51.446. The omitted sections apply only to criteria and
procedures for localized Carbon Monoxide hot spots, Particulate Matter
areas, and Nitrogen Dioxide areas. Noting this, these sections of the
transportation conformity rule are not applicable to the State of
Wisconsin, which contains nonattainment areas for ozone.
On August 7, 1995, EPA finalized an amendment to section 51.448. It
should be noted that additional sections of the conformity rule are
scheduled to be amended. The EPA cannot approve sections into the SIP
where inconsistencies exist between the submittal and the final rule.
After EPA further amends the conformity rule, the State of Wisconsin
will be required to update the SIP to address the rule changes.
The WDNR and the WDOT concluded that this SIP revision in the form
of a MOA will be enforceable through section 144.31(1)(e) and section
144.371, Wis. Stats. The MOA, which is a binding agreement among the
affected agencies, outlined each agency's roles and responsibilities in
the transportation conformity process. A total of three MOA were
included in the SIP revision; two MOAs between the local MPO, MDOT and
MDNR for the two metropolitan areas, and one MOA between WDOT and WDNR
for the remaining rural areas.
Section 85.02, Wis. Stats. requires all agencies involved in
transportation related activities to follow the recommendations of the
WDOT. The WDOT has the authority over the approval of all
Transportation Improvement Programs (TIP) and the approval of Federal
and State funds for transportation projects, programs, or plans. The
WDOT will not approve any MPO TIP that contains a nonconforming project
in the State TIP. Furthermore, the WDOT will not approve Federal or
State funding for any nonconforming projects, programs, or plans and
may withhold moneys for failure to follow conformity procedures.
Section 30.12(4), Wis. Stats., gives the transportation conformity
agreements between WDNR and WDOT full legal effect in Wisconsin. This
law requires WDOT to follow its agreement with WDNR or be subject to
the prohibitions or permit or approval requirements under sections
29.29, 30.11, 30.12, 30.123, 30.195, 30.20, 59.971, 61.351, 62.231,
87.30 and chapters 144 and 147, Wis. Stats.
Section 1.11, Wis. Stats., the Wisconsin Environmental Policy Act,
may be enforced by citizens with regard to activities of WDNR and WDOT.
III. EPA Action
The EPA is proposing approval the transportation conformity SIP
revision for the State of Wisconsin. The EPA has evaluated this SIP
revision and has determined that the State has fully adopted the
provisions of the Federal transportation conformity rules in accordance
with 40 CFR part 51 subpart T. The appropriate public participation and
comprehensive interagency consultations have been undertaken during
development and adoption of this SIP revision.
IV. Miscellaneous
A. Applicability to Future SIP Decisions
Nothing in this action should be construed as permitting, allowing
or establishing a precedent for any future request for revision to any
SIP. The EPA shall consider each request for revision to the SIP in
light of specific technical, economic, and environmental factors
[[Page 21414]]
and in relation to relevant statutory and regulatory requirements.
B. Executive Order 12866
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for
Air and Radiation. The Office of Management and Budget has exempted
this regulatory action from E.O. 12866 review.
C. Regulatory Flexibility
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities (5 U.S.C. 603 and 604).
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
This approval does not create any new requirements. Therefore, I
certify that this action does not have a significant impact on any
small entities affected. Moreover, due to the nature of the Federal-
State relationship under the Act, preparation of the regulatory
flexibility analysis would constitute Federal inquiry into the economic
reasonableness of the State action. The Act forbids EPA to base its
actions concerning SIPs on such grounds. Union Electric Co. v. U.S.
E.P.A., 427 U.S. 246, 256-66 (1976).
Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, the 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, the EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. section 203 requires the EPA to establish a
plan for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
The EPA has determined that the approval action promulgated today
does not include a Federal mandate that may result in estimated costs
of $100 million or more to either State, local, or tribal governments
in the aggregate, or to the private sector.
This Federal action approves pre-existing requirements under State
or local law, and imposes no new Federal requirements. Accordingly, no
additional costs to State, local, or tribal governments, or the private
sector, result from this action.
D. Petitions for Judicial Review
Under section 307(b)(1) of the Act, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by July 9, 1996. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the purposes of judicial review, nor does
it extend the time within which a petition for judicial review may be
filed and shall not postpone the effectiveness of such rule or action.
This action may not be challenged later in proceedings to enforce its
requirements (see section 307(b)(2)).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Hydrocarbons,
Intergovernmental relations, Ozone, Transportation conformity,
Transportation-air quality planning, Volatile organic compounds.
Authority: 42 U.S.C. 7401-7671q.
Dated: April 26, 1996.
David A. Ullrich,
Acting Regional Administrator.
[FR Doc. 96-11759 Filed 5-9-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-11758 Approval and Promulgation of Air Quality Implementation Plans; Illinois: Motor Vehicle Inspection and Maintenance
[Federal Register Volume 61, Number 92 (Friday, May 10, 1996)]
[Proposed Rules]
[Pages 21404-21412]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11758]
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[[Page 21405]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[IL102-1-6693; FRL-5503-9]
Approval and Promulgation of Air Quality Implementation Plans;
Illinois: Motor Vehicle Inspection and Maintenance
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to approve portions and to conditionally
approve other portions of a vehicle inspection and maintenance (I/M)
State Implementation Plan (SIP) revision submitted by the State of
Illinois on June 29, 1995, based on the State's April 22, 1996, letter
of commitment to submit certain items within one year of the final
conditional approval. This revision provides for the adoption and
implementation of an enhanced I/M program in both the Chicago severe
ozone nonattainment area and the East St. Louis moderate ozone
nonattainment area. Both areas are required to attain the National
Ambient Air Quality Standards (NAAQS) as specified under the Clean Air
Act (Act) by 2007 and 1996 respectively. Illinois indicates that the
implementation of this important program in the two areas stated above,
will reduce vehicle emissions which contribute to the formation of
urban smog in Illinois by more than 38 tons per day. In support of the
proposed conditional approval of the SIP revision, the State has
submitted the State's Request-For-Proposals as supplemental information
to the SIP. In addition, the State has committed in an April 22, 1996,
letter to submit to EPA as supplemental information in support of the
SIP, the State's final I/M contract and any rules necessary to address
the requirements identified in the analysis section of this document.
DATES: Comments must be received on or before June 10, 1996.
ADDRESSES: Copies of Illinois' I/M SIP submittal, EPA's proposals and
rulemakings, and other documents pertinent to this proposed notice are
available at the following address: U.S. Environmental Protection
Agency, Region 5, Air and Radiation Division, Air Programs Branch, 77
West Jackson Boulevard, Chicago, Illinois 60604.
Comments on this proposed rule should be addressed to: J. Elmer
Bortzer, Chief, Regulation Development Section, Air Programs Branch
(AR-18J), United States Environmental Protection Agency, Region 5, 77
West Jackson Boulevard, Chicago, Illinois 60604.
FOR FURTHER INFORMATION CONTACT: Francisco J. Acevedo, Environmental
Engineer, Regulation Development Section, Air Programs Branch (AR-18J),
United States Environmental Protection Agency, Region 5, 77 West
Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6061.
Anyone wishing to come to Region 5 offices should first contact
Francisco J. Acevedo.
SUPPLEMENTARY INFORMATION:
I. Introduction
Motor vehicles are significant contributors of volatile organic
compounds (VOC), carbon monoxide (CO), and nitrogen oxide (NOX)
emissions. The motor vehicle inspection and maintenance program is an
effective means of reducing these emissions. Despite improvements in
emission control technology in past years, mobile sources in urban
areas continue to remain responsible for roughly half of the emissions
of VOC causing ozone, and most of the emissions of CO. They also emit
substantial amounts of nitrogen oxides and air toxics. This is because
the number of vehicle miles traveled has doubled in the last 20 years
to 2 trillion miles per year, offsetting much of the technological
progress in vehicle emission control over the same period. Projections
indicate that the steady growth in vehicle miles will continue.
Under the Act, the EPA is pursuing a three-point strategy to
achieve emission reductions from motor vehicles. The development and
commercialization of cleaner vehicles and cleaner fuels represent the
first two elements of the strategy. These developments will take many
years before cleaner vehicles and fuels dominate the fleet and
favorably impact the environment. This document deals with the third
element of the strategy, inspection and maintenance, which is aimed at
the reduction of emissions from the existing fleet by ensuring that
vehicles are maintained to meet the emission standards established by
EPA. Properly functioning emission controls are necessary to keep
pollution levels low. The driving public is often unable to detect a
malfunction of the emission control system. While some minor
malfunctions can increase emissions significantly, they do not affect
drivability and may go unnoticed for a long period of time. Effective
I/M programs can identify excessive emissions and assure repairs. The
EPA projects that sophisticated I/M programs such as the one being
proposed in this rulemaking in Illinois will identify emission related
problems and prompt the vehicle owner to obtain timely repairs thus
reducing emissions.
The Act requires that polluted cities adopt either a ``basic'' or
``enhanced'' I/M program, depending on the severity of the pollution
and the population of the area. Moderate ozone nonattainment areas,
plus marginal ozone areas with existing or previously required I/M
programs in Census-defined urbanized areas, fall under the ``basic'' I/
M requirements. Basic and enhanced I/M programs both achieve their
objective by identifying vehicles that have high emissions as a result
of one or more malfunctions, and requiring them to be repaired. An
``enhanced'' I/M program covers more vehicles in operation in the
fleet, employs inspection methods which are better at finding high
emitting vehicles, and has additional features to better assure that
all vehicles are tested properly and effectively repaired. The Act
directed EPA to establish a minimum performance standard for enhanced
I/M programs. The standard is based on the performance achievable by
annual inspections in a centralized test program. States have
flexibility to design their own programs if they can show that their
program is as effective as the model program used in the performance
standard. Naturally, the more effective the program the more credit a
State will get towards the emission reduction requirement. An effective
program will help to offset emissions associated with growth in vehicle
use and allow for industrial and/or commercial growth.
The EPA and the States have learned a great deal about what makes
an I/M program effective since the Clean Air Act of 1977 first required
I/M programs for polluted areas. There are three major keys to an
effective program:
(1) Given the advanced state of current vehicle design and
anticipated technology changes, the ability to accurately fail problem
vehicles and pass clean ones requires improved test equipment and test
procedures;
(2) Comprehensive quality control and aggressive enforcement are
essential to assuring the testing is done properly;
(3) Skillful diagnostics and capable mechanics are important to
assure that failed cars are fixed properly.
These three factors are missing in most older I/M programs.
Specifically, the idle and 2500 RPM/idle short tests and anti-tamper
inspections used in current I/M programs are not as effective in
identifying and reducing in-use emissions from the types of vehicles in
the current and future fleet. Also, covert audits by EPA and State
agencies
[[Page 21406]]
typically discover improper inspection and testing 50 percent of the
time in test-and-repair stations indicating poor quality control.
Experience has shown that quality control at high-volume test only
stations is usually much better. And, finally, diagnostics and
mechanics training are often poor or nonexistent.
On November 5, 1992 (57 FR 52950), EPA established a high-tech
emission test for high-tech cars. This I/M test, known as the IM240
test, is so effective that biennial test programs yield almost the same
emission reduction benefits as annual programs. The test can also
accurately measure NOX emissions where NOX is important to
address an ozone problem. The addition of the pressure and purge test
increases the benefit even more and results in lower testing costs and
consumer time demands. The pressure test is designed to find leaks in
the fuel system, and the purge test evaluates the functionality of the
vapor control system. In addition, EPA published changes to the I/M
rule in the Federal Register on October 18, 1995, (60 FR 48029) in
order to provide greater flexibility to States required to implement I/
M programs.
II. Background
The State of Illinois currently contains two ozone nonattainment
areas which are required to implement I/M programs in accordance with
the Act. The Chicago severe-17 ozone nonattainment area contains the
Chicago, Aurora, Crystal Lake, Elgin, Joliet, and Round Lake Beach-
McHenry urbanized areas. The Federal I/M rule requires the Chicago
urbanized area to implement an enhanced I/M program. Since the I/M rule
does not require enhanced I/M programs in severe urbanized areas with a
Census population of less than 200,000, the remaining five cities in
the Chicago nonattainment area will be required to implement only a
basic I/M program based on their 1990 Census-defined urbanized area
populations. The East St. Louis moderate ozone nonattainment area
contains the Illinois portion of the St. Louis and Alton urbanized
areas. Both areas are required to implement a Basic I/M program in the
nonattainment area. On June 29, 1995, IEPA submitted to EPA a SIP
revision for the implementation of an enhanced I/M program to cover
both the Chicago and the East St. Louis nonattainment areas. This
submittal includes the Vehicle Emissions Inspection Law of 1995 (625
ILCS 5/13B), P.A. 88-533, which became effective January 18, 1994. That
statute provides authority for IEPA to implement an enhanced I/M
program and meet EPA's requirements for such a program. P.A. 88-533
mandates enhanced I/M testing for the Metro-East area and certain
portions of the Chicago nonattainment area. In addition, the Illinois
submittal includes I/M regulations (R94-19 and R94-20) adopted on
December 1, 1994, by the Illinois Pollution Control Board (Board),
which include emissions standards based upon EPA's preferred IM240
loaded mode exhaust emissions standard. On December 23, 1994, the
amended rule for R94-20 was published in the Illinois State Register
and its effective date was December 12, 1994. On December 30, 1994, the
amended rule R94-19 was published in the Illinois Register and had an
effective date of December 14, 1994. On April 22, 1996, IEPA submitted
the State's I/M Request-For-Proposal as part of the Illinois SIP
submittal.
Under the Environmental Protection Act [415 ILCS 5 (1992)], the
Board has the authority to adopt air pollution regulations for the
State of Illinois. The adopted regulations and the legislation
submitted by Illinois changes the existing program from a basic I/M
program to a fully enhanced I/M program in both of Illinois' ozone
nonattainment areas. EPA summarizes the requirements of the Federal I/M
regulations, as found in 40 CFR 51.350-51.373, and its analysis of the
state submittal below. Parties desiring additional details on the
Federal I/M regulation are referred to the November 5, 1992, Federal
Register notice (57 FR 52950), or 40 CFR 51.350-51.373.
III. EPA's Analysis of the Illinois, Enhanced I/M Program
As discussed above, section 182 of the Act requires that States
adopt and implement updated regulations for I/M programs in moderate
and above ozone nonattainment areas. The following sections of this
notice summarize the requirements of the Federal I/M regulations and
address whether the elements of the State's submittal comply with the
Federal rule.
Applicability 40 CFR 51.350
Section 182(c)(3) of the Act and 40 CFR 51.350(a) require States
which contain areas classified as serious or worse ozone nonattainment
and containing metropolitan statistical areas (MSAs) with a population
of 200,000 or more to implement an enhanced I/M program. As noted
above, the State of Illinois contains the Aurora, Chicago, Crystal
Lake, Elgin, Joliet, and Round Lake beach-McHenry urbanized areas in
its Chicago Severe-17 ozone nonattainment area, but the Chicago
urbanized area is the only area which contains a population of more
than 200,000, based on 1990 Census data. The remaining urbanized areas
in the Chicago nonattainment area with populations less than 200,000
are required to implement a basic I/M program. In addition, section
182(b)(4) of the Act and 40 CFR part 51.530(a) require States with
moderate ozone nonattainment areas containing 1990 census-defined
urbanized areas to implement a basic I/M program. The State of Illinois
contains the East St. Louis moderate nonattainment area where this
requirement applies.
The Illinois submittal contains the legal authority and regulations
necessary for IEPA to establish the program boundaries and operate an
enhanced I/M program in ozone nonattainment areas stated above. P.A.
88-533 specifies the geographic boundaries of the program in both ozone
nonattainment areas. The program boundaries described in the Illinois
submittal meet the Federal I/M requirements under Sec. 51.350 and are
approvable. The Federal I/M regulation requires that the State I/M
program must operate until it is no longer necessary. EPA has
determined that a SIP which does not terminate prior to the attainment
deadline for each applicable area (i.e. 2007 for the Chicago severe-17
ozone nonattainment area, and 1996 for the Metro-East moderate ozone
nonattainment area) satisfies this requirement. The State I/M submittal
does not contain a termination provision and is therefore approvable.
EPA proposes to approve this section of the Illinois submittal.
Enhanced I/M Performance Standard 40 CFR 51.351
The enhanced I/M program must be designed and implemented to meet
or exceed a minimum performance standard, expressed in area-wide
average grams per mile (gpm), for emission levels of certain
pollutants. The performance standard shall be established using local
characteristics, such as vehicle mix and local fuel controls, and the
following model I/M program parameters: network type, start date, test
frequency, model year coverage, vehicle type coverage, exhaust emission
test type, emission standards, emission control device, evaporative
system function checks, stringency, waiver rate, compliance rate and
evaluation date. The emission levels achieved by the State's program
design shall be calculated using the most current version, at the time
of submittal, of the EPA mobile source emission factor model. At the
time of the Illinois submittal, the most current version was
[[Page 21407]]
MOBILE5a. Areas shall meet or exceed the performance standard for the
pollutants which cause them to be subject to I/M requirements. In the
case of ozone nonattainment areas, the performance standard must be met
for both nitrogen oxides (NOX) and volatile organic compounds
(VOCs). Urban Airshed Modeling (UAM) has been conducted in both the
Chicago and St. Louis regions. In the Chicago area, the UAM has
demonstrated that control of NOX within the nonattainment area is
counterproductive in controlling ambient ozone. IEPA has petitioned
for, and has received from EPA, a waiver from Clean Air Act NOX
control requirements, including the requirement to meet the NOX
enhanced I/M performance standard. EPA is currently in the process of
evaluating the UAM data and an IEPA NOX waiver request for the St.
Louis region. NOX testing will be restricted to tests conducted
for program evaluation purposes in accordance with 40 CFR Part
51.353(c).
The June 30, 1995, Illinois submittal includes three alternative
enhanced program options based on the use of either ASM5015, ASM2, or
IM240 networks. All three options use the following program design
parameters: Centralized test only network; 1986 start date; biennial
frequency; 1968 and newer model year coverage; Vehicle type include
LDGV, LDGT1, LDGT2 and HDGV; IM240 for 1981 and newer vehicles, and
idle for 1968-1980 LDGV's and LDGT's and 1968 and later HDGV's; purge
test on 1981 and newer LDGV's and LDGT's undergoing either ASM or
IM240; pressure test of gas cap; stringency rate of 20 percent for 1980
and older vehicles; waiver rate of 3 percent and a 96 percent
compliance rate.
The Illinois program design parameters meet the Federal I/M
regulations and are approvable. The emission levels achieved by the
State, for each area, were modeled using MOBILE5a. The modeling
demonstration was performed correctly, using local characteristics
where available, and it demonstrated that the program design will meet
the enhanced I/M performance standard, expressed in grams per mile, for
VOCs and NOX for each milestone and for the attainment deadline.
The modeling demonstration submitted by the State is approvable. EPA
proposes to approve this section of the submittal.
Network Type and Program Evaluation 40 CFR 51.353
Enhanced I/M programs shall be operated in a centralized test only
format, unless the State can demonstrate that a decentralized program
is equally effective in achieving the enhanced I/M performance
standard. The enhanced program shall include an ongoing evaluation to
quantify the emission reduction benefits of the program and to
determine if the program is meeting the requirements of the Act and the
Federal I/M regulations. The SIP shall include details on the program
evaluation and a schedule for submittal of biennial evaluation reports,
data from a State monitored or administered mass emission test of at
least 0.1 percent of the vehicles subject to inspection each year,
description of the sampling methodology, the data collection and
analysis system and the legal authority enabling the evaluation
program.
The State legislative authority and the State I/M regulations
provide for a centralized, test-only network. Illinois' centralized,
test only network type is approvable. The submittal does not, however,
include provisions for on-going program evaluation to satisfy all of
the requirements of 40 CFR part 51.353. Specifically, the State must
submit schedules for program evaluations and methodologies by which
this biennial program evaluation will be carried out, as required by 40
CFR part 51.353. EPA proposes to conditionally approve this section of
the Illinois enhanced I/M SIP based on the April 22, 1996, letter and
phone conversation record committing to submit to EPA as supplemental
information in support of the SIP the necessary documentation within
one year of the final conditional approval. In addition, the State has
committed to submit to EPA biennial program evaluation reports meeting
the requirements of 40 CFR part 51.353 starting at the end of the
program's first biennial cycle.
Adequate Tools and Resources 40 CFR 51.354
The Federal I/M regulation requires States to demonstrate that
adequate funding of the program is available. A portion of the test fee
or a separately assessed per year vehicle fee shall be collected,
placed in a dedicated fund and used to finance the program. Alternative
funding approaches are acceptable if it is demonstrated that the
funding can be maintained. Reliance on funding from a State or local
General Fund is not acceptable unless doing otherwise would be a
violation of the State's constitution. The SIP shall include a detailed
budget plan which describes the source of funds for personnel, program
administration, program enforcement and purchase of equipment. The SIP
shall also detail the number of personnel dedicated to the quality
assurance program, data analysis, program administration, enforcement,
public education and assistance and other necessary functions. A.P. 88-
533 prevents the IEPA from charging motor vehicle owners for
inspections required under this law. Instead, A.P. 88-533 states that
the Vehicle Inspection Fund, which was a fund created in the State
treasury for the purpose of receiving money from the Motor Fuel Tax and
other sources, shall be used for the payment of the cost of the
program, including reimbursement of those agencies of the State that
incur expenses in the administration and enforcement of the program.
EPA proposes to approve this section of the Illinois submittal.
Test Frequency and Convenience 40 CFR 51.355
The enhanced I/M performance standard assumes an annual test
frequency; however, other schedules may be approved if the performance
standard is achieved. The SIP shall describe the test year selection
scheme and shall include the legal authority, regulations or contract
provisions necessary to implement and enforce the test frequency
requirement. The program shall be designed to provide convenient
service to motorists by ensuring short waiting times, short driving
distances and regular testing hours. The Illinois enhanced I/M law of
1995 provides the legal authority to implement and enforce biennial
test frequency for all subject vehicles. New vehicles are exempt from
testing for two years, requiring the vehicle to be initially tested in
the second calendar year after the vehicle model year. Based on the
performance standard modeling provided by the State, the enhanced I/M
program meets the performance standard accounting for biennial test
frequency. P.A. 88-533 also requires that the program be designed so
that covered vehicle owners reside within 12 miles of an official
inspection station. In addition, the law requires the program to be
designed in such a way that sufficient inspection capacity at the
station is so that the usual wait before the start of an inspection
does not exceed twenty minutes. The test frequency and convenience
section is approvable and EPA is proposing to approve.
Vehicle Coverage 40 CFR 51.356
The performance standard for enhanced I/M programs assumes coverage
of all 1968 and newer model year light duty vehicles and light duty
trucks up to 8,500 pounds gross vehicle
[[Page 21408]]
weight rating (GVWR), and includes vehicles operating on all fuel
types. Other levels of coverage may be approved if the necessary
emission reductions are achieved. Vehicles registered or required to be
registered within the I/M program area boundaries, and fleets primarily
operated within the I/M program area boundaries belonging to the
covered model years and vehicle classes comprise the subject vehicles.
Fleets may be officially inspected outside the normal I/M program test
facilities, if such alternatives are approved by the program
administration, but shall be subject to the same test requirements
using the same quality control standards as non-fleet vehicles and
shall be inspected in independent, test-only facilities, according to
the requirements of 40 CFR part 51.353(a).
The Federal I/M regulation requires that the SIP shall include the
legal authority or rule necessary to implement and enforce the vehicle
coverage requirement, a detailed description of the number and types of
vehicles to be covered by the program and a plan for how those vehicles
are to be identified, including vehicles that are routinely operated in
the area but may not be registered in the area, and a description of
any special exemptions, including the percentage and number of vehicles
to be impacted by the exemption.
The Illinois Vehicle Inspection Law of 1995 requires coverage of
all 1968 and newer vehicles registered or required to be registered in
the I/M program area, except those vehicles which run on diesel or
exclusively by electricity. The modeling demonstration submitted with
the SIP narrows the vehicle coverage to LDGV, LDGT1, and LDGT2. The
Illinois legislation provides the legal authority to implement and
enforce the vehicle coverage. This level of coverage is approvable
because it provides the necessary emission reductions. The modeling
demonstration does contain estimates of the number of registered
vehicles in the area. However, the State's June 29, 1995, SIP submittal
does not adequately address fleet testing requirements. Existing
legislation allows for the self testing of fleets, but the submittal
fails to address the specific requirements involved in fleet testing.
The State also did not provide a description of the impact vehicle
exemptions will have on the subject fleet. The modeling demonstration
submitted by the State does not account for these exemptions in the
emission reduction analysis. The State must describe the extent of the
exemption's impact, in accordance with 40 CFR part 51.356, in order for
EPA to fully approve this section of the State submittal. EPA proposes
to conditionally approve this section based on the April 22, 1996,
letter to EPA committing to address the requirements of 40 CFR 51.356
with regard to fleets, within one year of the final conditional
approval.
Test Procedures and Standards 40 CFR 51.357
Written test procedures and pass/fail standards are required to be
established and followed for each model year and vehicle type included
in the program. Federal test procedures and standards are found in 40
CFR 51.357 and in the EPA document entitled ``High-Tech I/M Test
Procedures, Equipment Standards, Quality Control Requirements, and
Equipment Specifications'', EPA-AA-EPSD-IM-93-1, finalized in April,
1994. A.P. 88-533 provides the State the authority to establish test
procedures according to the needs of the program. The Illinois
submittal also includes I/M regulations (R94-19 and R94-20) adopted on
December 1, 1994, by the Illinois Pollution Control Board (Board) which
include emissions standards based upon EPA's preferred IM240 loaded
mode exhaust emissions standard. IEPA has asked I/M contract bidders to
address in detail the requirements of this section in its Request-For-
Proposal (RFP). EPA proposes to conditionally approve this section of
the SIP based on the State's commitment to submit to EPA as
supplemental information in support of the SIP its final signed I/M
contract addressing the requirements of 40 CFR part 51.357 within one
year of EPA's final conditional approval.
Test Equipment 40 CFR 51.358
The Federal regulation requires computerized test systems for
performing any measurement on subject vehicles. The Federal I/M
regulations requires that the State SIP submittal include written
technical specifications for all test equipment used in the program.
The specifications shall describe the emission analysis process, the
necessary test equipment, the required features and written acceptance
testing criteria and procedures.
A.P. 88-533 provides the general authority for the State to
establish the designation of official test equipment and testing
procedures. The Illinois submittal also includes I/M regulations (R94-
19 and R94-20) which include emissions standards based upon EPA's
preferred IM240 loaded mode exhaust emissions standard. IEPA has
addressed the requirements of this section in its RFP released February
29, 1996. EPA proposes to conditionally approve this section of the SIP
based on the State's April 22, 1996, commitment to submit to EPA as
supplemental information in support of the SIP its final signed
contract addressing the requirements of 40 CFR part 51.358 within one
year of EPA's final conditional approval.
Quality Control 40 CFR 51.359
Quality control measures shall ensure that emission measurement
equipment are calibrated and maintained properly, and that inspection,
calibration records and control charts are accurately created, recorded
and maintained. The Illinois submittal contains general legal authority
in A.P. 88-533 which requires IEPA to establish an enhanced program
containing procedures to assure the correct operation, maintenance and
calibration of test equipment, and also procedures for certifying test
results and for reporting and maintaining relevant data and records.
Illinois' RFP requires bidders as part of their Technical proposal to
submit a Quality Assurance Plan which addresses the requirements of
this section. EPA proposes to conditionally approve this section of the
SIP based on the State's April 22, 1996 commitment to submit to EPA as
supplemental information in support of the SIP its final signed
contract and the contractor's Quality Assurance Plan addressing the
quality control requirements of 40 CFR part 51.359 within one year of
EPA's final conditional approval.
Waivers and Compliance Via Diagnostic Inspection 40 CFR 51.360
The Federal I/M regulation allows for the issuance of a waiver,
which is a form of compliance with the program requirements that allows
a motorist to comply without meeting the applicable test standards, as
long as prescribed criteria are met. For enhanced I/M programs, an
expenditure of at least $450 in repairs, adjusted annually to reflect
the change in the Consumer Price Index (CPI) as of 1989, is required in
order to qualify for a waiver. Waivers can only be issued after a
vehicle has failed a retest performed after all qualifying repairs have
been made. Any available warranty coverage must be used to obtain
repairs before expenditures can be counted toward the cost limit.
Tampering related repairs shall not be applied toward the cost limit.
Repairs must be appropriate to the cause of the failure. Repairs for
1980 and newer model year vehicles must be performed by a recognized
repair technician. The Federal regulation
[[Page 21409]]
allows for compliance via a diagnostic inspection after failing a
retest on emissions and requires quality control of waiver issuance.
The SIP must set a maximum waiver rate and must describe corrective
action that must be taken if the waiver rate exceeds that committed to
in the SIP.
The Illinois SIP submittal contains the necessary authority in A.P.
88-533 to issue waivers, set and adjust cost limits, and administer and
enforce the waiver system. The Illinois law requires that IEPA certify
whether a vehicle that has failed a vehicle emission retest qualifies
for a waiver of the emission inspection standards if the following
criteria are met: The vehicle has received all repairs and adjustments
for which it is eligible under any emission performance warranty
provided under section 207 of the Act; IEPA determines by normal
inspection procedures that the vehicle's emission control devices are
present and appear to be properly connected and operating; consistent
with 40 CFR 51.360 for vehicles required to be tested under the
Illinois law, a minimum expenditure of $450 in emission-related repairs
exclusive of tampering-related repairs have been made; repairs for
vehicles of model year 1981 and later are conducted by a recognized
repair technician; evidence of repair is presented consisting of either
signed and dated receipts identifying the vehicle and describing the
work performed and amount charged for eligible emission-related
repairs, or an affidavit executed by the person performing the eligible
emission related repairs; and that the repairs have resulted in an
improvement in vehicle emissions as determined by comparison of initial
and final retest results.
The State of Illinois has chosen not to allow compliance via a
complete documented physical and functional diagnosis and inspection
which shows that no additional emission-related repairs are needed. The
State has set a maximum waiver rate of 3 percent for both pre-1981 and
for 1981 and later vehicles. Illinois used MOBILE5a and assumed a
maximum waiver rate of 3 percent for 1980 and older model year vehicles
and 3 percent for 1981 and newer vehicles. In the event the actual
waiver rate exceeds the planned maximum used for estimating the
emission reduction benefit, the State will need to remodel to assess
the emission reduction benefits based on the actual waiver rate. This
section is approvable and EPA is proposing to approve.
Motorist Compliance Enforcement 40 CFR 51.361
The Federal regulations require the use of registration denial to
ensure compliance with the requirements of the I/M program unless an
exception for use of an alternative is approved. Registration denial
enforcement consists of rejecting an application for initial
registration or registration for a used vehicle unless the vehicle has
complied with the I/M requirements prior to the granting of the
application. The SIP shall provide information concerning the
enforcement process, legal authority to implement and enforce the
program, a commitment to a compliance rate to be used for modeling
purposes and to be maintained in practice. The Illinois SIP contains an
alternative compliance system to that of registration denial. The
Illinois compliance approach uses computer matching of vehicle
registration records and inspection records to identify violations. The
Illinois Secretary of State (SOS) is required under A.P. 88-533 to
suspend either the driving privileges or the vehicle registration, or
both, of any vehicle owner who has not complied with the requirements
of A.P. 88-533. A suspension under this requirement would not be
terminated until proof of compliance has been submitted to the SOS. In
the I/M SIP, Illinois commits to the level of motorist enforcement
necessary to ensure a compliance rate of no less than 96 percent among
subject vehicles in the program area. If it is determined as part of
the required program evaluation that the I/M program is not meeting the
compliance rate, Illinois will need to investigate the problem and
institute changes to improve the compliance rates. EPA proposes to
approve this section of the Illinois SIP.
Motorist Compliance Enforcement Program Oversight 40 CFR 51.362
The Federal I/M regulation requires that the enforcement program
shall be audited regularly and shall follow effective program
management practices, including adjustments to improve operation when
necessary. The SIP shall include quality control and quality assurance
procedures to be used to insure the effective overall performance of
the enforcement system. An information management system shall be
established which will characterize, evaluate and enforce the program.
The legal authority for the implementation of an I/M program is found
in A.P. 88-53. This statute provides the authority necessary to develop
and implement the enforcement program oversight element of the I/M
program. EPA proposes to conditionally approve this portion of the
State's submittal based on the April 22, 1996, letter to EPA committing
to addressing the requirements of 40 CFR part 51.362 within one year of
the conditional approval.
Quality Assurance 40 CFR 51.363
An ongoing quality assurance program shall be implemented to
discover, correct and prevent fraud, waste, and abuse in the program.
The program shall include covert and overt performance audits of the
inspectors, audits of station and inspector records, equipment audits,
and formal training of all state I/M enforcement officials and
auditors. A description of the quality assurance program which includes
written procedure manuals on the above discussed items must be
submitted as part of the SIP. The Illinois submittal contains only a
general provision under P.A. 88-533 which requires that the State I/M
program provide for procedures to assure the correct operation,
maintenance, and calibration of test equipment. Illinois' RFP requires
bidders as part of their Technical proposal to submit a Quality
Assurance Plan which addresses the requirements of this section. EPA
proposes to conditionally approve this section of the SIP based on the
State's April 22, 1996 commitment to submit to EPA as supplemental
information in support of the SIP its final signed contract and the
contractor's Quality Assurance Plan addressing the quality assurance
requirements of 40 CFR part 51.363 within one year of EPA's final
conditional approval.
Enforcement Against Contractors, Stations and Inspectors 40 CFR 51.364
Enforcement against licensed stations or contractors and inspectors
shall include swift, sure, consistent penalties for violation of
program requirements. The Federal I/M regulation requires the
establishment of minimum penalties for violations of program rules and
procedures which can be imposed against stations, contractors and
inspectors. The legal authority for establishing and imposing
penalties, civil fines, licence suspensions and revocations must be
included in the SIP. State quality assurance officials shall have the
authority to temporarily suspend station and/or inspector licenses
immediately upon finding a violation that directly affects emission
reduction benefits. The SIP shall describe the administrative and
judicial procedures and responsibilities relevant to the enforcement
process. The Illinois
[[Page 21410]]
submittal includes the legal authority to establish and impose
penalties against station, contractors, and inspectors. In addition,
the RFP contains detailed provisions addressing the requirements of
this section, including specific monetary penalties established for
violation of program rules and procedures. The provisions found in the
RFP will be enforceable once a final I/M contract is developed and
signed. EPA proposes to conditionally approve this section of the SIP
based on the State's April 22, 1996 commitment to submit to EPA as
supplemental information in support of the SIP its final signed
contract and any necessary administrative rules addressing the
requirements of 40 CFR part 51.364 within one year of EPA's final
conditional approval.
Data Collection 40 CFR 51.365
In order to manage, evaluate and enforce the program requirements
an effective I/M program requires accurate data collection. The Federal
I/M regulation requires data to be gathered on each individual test
conducted and on the results of the quality control checks of test
equipment required under 40 CFR part 51.359. The Illinois submittal
contains a general provision under P.A. 88-533 which requires that the
State I/M program provide for procedures for certifying test results
and for reporting and maintaining relevant data and records. In
addition, the RFP requires that the contractor submit to IEPA, on a
monthly basis, a file containing detailed data for each vehicle test
transaction conducted. The data collection requirements specified in
the RFP meet those specified in 40 CFR part 51.365. Once the final I/M
contract is submitted to EPA as supplemental information in support of
the SIP this section of the I/M SIP can be fully approved. At this
time, EPA proposes to conditionally approve this section of the SIP
based on the State's April 22, 1996 commitment to submit to EPA as
supplemental information in support of the SIP its final signed
contract addressing the data collection requirements of 40 CFR part
51.365 within one year of EPA's final conditional approval.
Data Analysis and Reporting 40 CFR 51.366
Data analysis and reporting are required in order to monitor and
evaluate the program by the State and EPA. The Federal I/M rule
requires annual reports to be submitted to EPA that provide information
and statistics and summarize activities performed for each of the
following programs: Testing, quality assurance, quality control and
enforcement. These reports are to be submitted by July of each year and
shall provide statistics for the period of January to December of the
previous year. A biennial report shall be submitted to EPA that
addresses changes in the program design, regulations, legal authority,
program procedures, any weaknesses in the program found during the
previous two year period and how these problems will be or were
corrected. The Illinois RFP contains the necessary provisions
addressing the requirements of this section. However, in order to
receive full approval, the State must submit its final, signed contract
as supplemental information in support of the SIP addressing the
requirements of 40 CFR part 51.366 to EPA within one year of EPA's
final conditional approval. EPA proposes to conditionally approve this
section of the SIP based on the State's April 22, 1996 commitment to
submit to EPA as supplemental information in support of the SIP its
final signed contract addressing the data analysis and reporting
requirements of 40 CFR part 51.366 within the time frame specified
above.
Inspector Training and Licensing or Certification 40 CFR 51.367
The Federal I/M regulation requires all inspectors to be formally
trained and licensed or certified to conduct inspections. The Illinois
P.A. 88-533 requires all inspectors to be certified by IEPA after
successfully completing a course of training and successfully passing a
written test. The RFP requires Bidders to include in their Technical
Proposal a detailed Management Plan for the implementation and
operation of the contracted elements of the Illinois enhanced I/M
program. The Management Plan must include as part of its elements, a
description of the Personnel Training and Certification Program as
described in the RFP. The RFP requires the Contractor to establish and
operate an on-going program to train and certify contractor and IEPA
personnel. EPA proposes to conditionally approve this section of the
SIP based on the State's April 22, 1996 commitment to submit to EPA as
supplemental information in support of the SIP its final signed
contract and the contractor's Management Plan addressing the
requirements of 40 CFR part 51.367 within one year of EPA's final
conditional approval.
Public Information and Consumer Protection 40 CFR 51.368
The Federal I/M regulation requires the SIP to include a public
information and consumer protection programs. The submittal needs to
include a public information program, which educates the public on I/M,
State, and Federal regulations, air quality, the contribution of motor
vehicles to the air pollution problem, and other items as describe in
the Federal rule. A consumer protection program, which includes
provisions for a challenge mechanism, protection of whistle blowers and
assistance to motorists in obtaining warranty covered repair, will also
need to be addressed. The Illinois submittal contains the legal
authority establishing grievance procedures for consumers to use, but
it does not address the rest of the requirements stated above for this
section. In order to receive full approval, the State has committed in
IEPA's April 22, 1996, letter to submit the remaining provisions of the
public information program within one year from EPA's final conditional
approval. EPA proposes to conditionally approve this portion of the SIP
based on the State's commitment to address the requirements of this
section within the time frame stated above.
Improving Repair Effectiveness 40 CFR 51.369
Effective repairs are the key to achieving program goals. The
Federal regulation requires states to take steps to ensure that the
capability exists in the repair industry to repair vehicles. The SIP
must include a description of the technical assistance program to be
implemented, a description of the procedures and criteria to be used in
meeting the performance monitoring requirements required in the Federal
regulation and a description of the repair technician training
resources available in the community. The Illinois submittal does not
contain any provisions addressing the requirements of this section,
however the State has submitted a commitment to address the
requirements of this section, including the submittal of a description
of available technician training resources, within one year of EPA's
final conditional approval. EPA is proposing to conditionally approve
this portion of the State submittal based on the State's commitment to
submit the necessary documentation to EPA in the time frame stated
above.
Compliance With Recall Notices 40 CFR 51.370
States are required to establish a method to ensure that vehicles
subject to enhanced I/M and that are included in either a voluntary
emissions recall as defined at 40 CFR 85.1902(d), or in a remedial plan
determination made
[[Page 21411]]
pursuant to section 207(c ) of the Act, receive the required repairs
prior to completing the emission test or renewing the vehicle
registration. The Illinois P.A. 88-533 provides the legal authority to
require owners to comply with emission related recalls before
completing the emission test. The Illinois RFP requires that the
contractor provide and maintain as part of the data handling system a
means to identify vehicles with unresolved emissions recalls based upon
the data provided by EPA. At a minimum, the Contractor and IEPA will
have the capability to store, retrieve, and update recall data that
consists of the VIN, the numbers of the recall campaign, and the date
that the repairs were performed. The system is to be capable of
interactively updating vehicle and/or recall database records based
upon information supplied by vehicle owners indicating that required
repairs have been made. The system will also be capable of updating
appropriate records based upon updated data provided by EPA. EPA
proposes to approve this section of the SIP based on the State's April
22, 1996 commitment to submit to EPA as supplemental information in
support of the SIP its final signed contract addressing the annual
reporting requirements of 40 CFR part 51.370 within one year of EPA's
final conditional approval.
On-Road Testing 40 CFR 51.371
On-road testing is required in enhanced I/M areas. The use of
either remote sensing devices (RSD) or roadside pullovers including
tailpipe emission testing can be used to meet the Federal regulations.
The program must include on-road testing of 0.5 percent of the subject
fleet or 20,000 vehicles, whichever is less, in the nonattainment area
or the I/M program area. Motorists that have passed an emission test
and are found to be high emitters as a result of a on-road test shall
be required to pass an out-of-cycle test. The Illinois P.A. 88-533
requires on-road testing through the use of remote sensing devices. The
SIP submittal requires the use of RSD to test at least 0.5 percent of
the subject fleet per year in the I/M program area. The RFP requires
that the Contractor develop and maintain written on-road inspection
procedures to be approved by IEPA. In addition, the Contractor is to
provide and maintain as part of the system on-road testing information
containing vehicle and test results obtained from the on-road testing
program. The Contractor will be responsible for evaluating all on-road
emission data, including linking emissions data with vehicle database
records. EPA proposes to conditionally approve this section of the SIP
based on the State's April 22, 1996 commitment to submit to EPA as
supplemental information in support of the SIP its final signed
contract addressing the on-road testing specifications of 40 CFR part
51.371 within one year of EPA's final conditional approval.
Proposed Action
EPA is proposing to approve portions and conditionally approve
other portions of this revision to the Illinois SIP for an enhanced I/M
program, as cited above. If Illinois fails to timely submit the
materials discussed above within one year of EPA's final conditional
approval, the final conditional approval will automatically convert to
a disapproval.
I. Basis for Conditional Approval
The EPA believes conditional approval is appropriate in this case
because the State has the necessary legal authority for an enhanced I/M
program and needs only to award the I/M contract and amend current
administrative rules to address a number of enhanced I/M program
requirements. As a condition of EPA's proposed conditional approval,
the State must submit a final signed I/M contract as supplemental
information in support of the SIP and any additional material necessary
to address the deficiencies identified in this document to EPA no later
than one year after EPA's final conditional approval. On April 22,
1996, the IEPA submitted a letter committing to this. In the letter
IEPA commits to provide EPA the signed enhanced I/M contract, in
addition to provide appropriate analyses, calculations, and rules as
discussed in a conference call on April 9, 1996 between IEPA and EPA.
The telephone conversation record of this call will be included as part
of the Illinois SIP.
II. Statement of Approvability
Under the authority of the Governor of Illinois, the IEPA submitted
a SIP revision to satisfy the requirements of the I/M regulation to the
EPA on June 29, 1995. EPA found the Illinois SIP complete in a letter
dated June 30, 1995. The EPA has reviewed this submittal and is
proposing to approve portions and proposing to conditionally approve
other portions of it pursuant to Section 110(k) of the Act, on the
condition that the portions of the I/M program noted above are adopted
and/or submitted on the schedules noted in this proposed rulemaking. If
EPA takes final conditional approval on the commitment, the State must
meet its commitment to submit the final I/M contract and all other
supporting documentation within one year of the conditional approval.
Once the EPA has conditionally approved this committal, if the State
fails to submit any necessary rules and/or documentation to EPA, final
conditional approval will automatically convert to a disapproval. EPA
will notify the State by letter to this effect. Once the SIP has been
disapproved, these commitments will no longer be a part of the approved
nonattainment area SIPs. The EPA subsequently will publish a notice to
this effect in the notice section of the Federal Register indicating
that the commitment or commitments have been disapproved and removed
from the SIP. If the State adopts and submits the final rule amendments
and the final I/M contract, as supplemental information in support of
the SIP, to EPA within the applicable time frame, the conditionally
approved commitments will remain part of the SIP until the EPA takes
final action approving or disapproving the new submittal. If the EPA
approves the subsequent submittal, those newly approved rules and/or
documentation will become part of the SIP.
If after considering the comments on the proposal, the EPA issues a
final disapproval or if the conditional approval portions are converted
to a disapproval, the sanctions clock under section 179(a) will begin.
If the State does not submit and EPA does not approve the rule on which
any disapproval is based within 18 months of the disapproval, the EPA
must impose one of the sanctions under section 179(b)-highway funding
restrictions or the offset sanction. In addition, any final disapproval
would start the 24 month clock for the imposition of a section 110(c)
Federal Implementation Plan. Finally, under section 110(m) the EPA has
discretionary authority to impose sanctions at any time after a final
disapproval.
Regulatory Flexibility
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
SIP approvals under 110 and subchapter I, Part D of the CAA do not
[[Page 21412]]
create any new requirements, but simply approve requirements that the
State is already imposing. Therefore, because the Federal SIP approval
does not impose any new requirements, I certify that it does not have a
significant impact on any small entities affected. Moreover, due to the
nature of the Federal-state relationship under the CAA, preparation of
a regulatory flexibility analysis would constitute Federal inquiry into
the economic reasonableness of state action. The CAA forbids EPA to
base its actions concerning SIPs on such grounds. Union Electric Co. v.
U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42 U.S.C. 7410(a)(2)
and 7410(k)(3).
Section 202 of the Unfunded Mandates Reform Act of 1995 (``Unfunded
Mandates Act'') (signed into law on March 22, 1995) requires that the
EPA prepare a budgetary impact statement before promulgating a rule
that includes a Federal mandate that may result in expenditure by
State, local, and tribal governments, in aggregate, or by the private
sector, of $100 million or more in any one year. Section 203 requires
the EPA to establish a plan for obtaining input from and informing,
educating, and advising any small governments that may be significantly
or uniquely affected by the rule.
Under section 205 of the Unfunded Mandates Act, the EPA must
identify and consider a reasonable number of regulatory alternatives
before promulgating a rule for which a budgetary impact statement must
be prepared. The EPA must select from those alternatives the least
costly, most cost-effective, or least burdensome alternative that
achieves the objectives of the rule, unless the EPA explains why this
alternative is not selected or the selection of this alternative is
inconsistent with law.
Because this proposed rule is estimated to result in the
expenditure by State, local, and tribal governments or the private
sector of less then $100 million in any one year, the EPA has not
prepared a budgetary impact statement or specifically addressed the
selection of the least costly, most cost-effective, or least burdensome
alternative. Because small governments will not be significantly or
uniquely affected by this rule, the EPA is not required to develop a
plan with regard to small governments. It imposes no additional
requirements. The Office of Management and Budget has exempted this
action rule from Executive Order 12866 review.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Nitrogen Oxide, Ozone, Volatile Organic Compound.
Authority: 42 U.S.C. 7401-7671q.
Dated: April 29, 1996.
David A. Ullrich,
Acting Regional Administrator.
[FR Doc. 96-11758 Filed 5-9-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-11740 Land Disposal Restrictions Phase IV Proposed RuleIssues Associated With Clean Water Act Treatment Equivalency, and Treatment Standards for Wood Preserving Wastes and Toxicity Characteristic Metal Wastes; Notice of Data Availability
[Federal Register Volume 61, Number 92 (Friday, May 10, 1996)]
[Proposed Rules]
[Pages 21418-21422]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11740]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 148, 261, 268, 271
[FRL-5503-4]
RIN 2050-AE05
Land Disposal Restrictions Phase IV Proposed Rule--Issues
Associated With Clean Water Act Treatment Equivalency, and Treatment
Standards for Wood Preserving Wastes and Toxicity Characteristic Metal
Wastes; Notice of Data Availability
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of data availability.
-----------------------------------------------------------------------
SUMMARY: Since publication of the Land Disposal Restrictions (LDR)
Phase IV proposal (60 FR 43654, August 22, 1995), EPA has received
additional information which will be considered in developing its final
rule. The public has 30 days from publication of this notice to comment
on that additional information. Readers should note that only comments
about the new information discussed in this notice will be considered
during the comment period; issues proposed in the August 22, 1995 Phase
IV rule, and in the Phase IV Supplemental Proposal on mineral
processing wastes (61 FR 2338, January 25, 1996), that are not
discussed in this Notice of Data Availability, are not open for further
comment.
DATES: Comments are due by June 10, 1996.
ADDRESSES: To submit comments, the public must send an original and two
copies to Docket Number F-96-P42A-
[[Page 21419]]
FFFFF, located at the RCRA Docket. The mailing address is: RCRA
Information Center, U.S. Environmental Protection Agency (5305W), 401
M. Street, SW, Washington, D.C. 20460. RCRA Information Center is
located at 1235 Jefferson Davis Highway, First Floor, Arlington,
Virginia. The RCRA Information Center is open for public inspection and
copying of supporting information for RCRA rules from 9:00 am to 4:00
pm Monday through Friday, except for Federal holidays. The public must
make an appointment to review docket materials by calling (703) 603-
9230. The public may copy a maximum of 100 pages from any regulatory
document at no cost. Additional copies cost $0.15 per page.
FOR FURTHER INFORMATION CONTACT: For general information or to order
paper copies of this Federal Register document, call the RCRA Hotline.
Callers within the Washington, Metropolitan Area must dial 703-412-9810
or TDD 703-412-3323 (hearing impaired). Long-distance callers may call
1-800-424-9346 or TDD 1-800-553-7672. The RCRA Hotline is open Monday-
Friday, 9:00 a.m. to 6:00 p.m., Eastern Standard Time. For other
information on this notice, contact Sue Slotnick (5302W), Office of
Solid Waste, 401 M Street, SW, Washington, DC 20460, phone (703) 308-
8462.
SUPPLEMENTARY INFORMATION:
Paperless Office Effort
EPA is asking prospective commenters to voluntarily submit one
additional copy of their comments on labeled personal computer
diskettes in ASCII (TEXT) format or a word processing format that can
be converted to ASCII (TEXT). It is essential to specify on the disk
label the word processing software and version/edition as well as the
commenter's name. This will allow EPA to convert the comments into one
of the word processing formats utilized by the Agency. Please use
mailing envelopes designed to physically protect the submitted
diskettes. EPA emphasizes that submission of comments on diskettes is
not mandatory, nor will it result in any advantage or disadvantage to
any commenter. This expedited procedure is in conjunction with the
Agency ``Paperless Office'' campaign. For further information on the
submission of diskettes, contact Sue Slotnick of the Waste Treatment
Branch at (703) 308-8462.
This Federal Register notice is available on the Internet System
through EPA Public Access Server at gopher.epa.gov.or through
WWW.epa.gov. For the text of the notice, choose: Rules, Regulations,
and Legislation; the FR-Waste; finally, Year/Month/Day.
Notice of Data Availability
On August 22, 1995, EPA proposed the LDR Phase IV rule (60 FR
43654), containing proposed treatment standards for newly listed and
characteristic wastes, among other issues. In a supplemental proposal
(61 FR 2338, January 25, 1996), EPA proposed treatment standards and
changes to the definition of solid waste for mineral processing wastes.
The two proposals will form the basis for a single rule due to be
promulgated later this year, referred to as the Phase IV final rule.
Today's Notice of Data Availability pertains primarily to the original
Phase IV proposal of August 22, 1995. Also, some possible changes
discussed in this notice could affect the Universal Treatment Standards
for metals in general, and could affect the current treatment standard
for F024. Finally, additional comments on capacity for treating mineral
processing wastes are solicited.
Since publication of the Phase IV proposal, EPA has received
comments and data, available in RCRA docket number F-95-PH4P-FFFFF, on
many issues, including the following:
(1) Treatment standards for toxicity characteristic (TC) metal
wastes;
(2) Treatment standards for wood preserving wastes;
(3) Solid waste exclusion for recycled wood preserving wastewaters;
and,
(4) Capacity issues.
These issues, and a discussion of the data the Agency has received
on each issue, are presented below.
(1) Treatment Standards for Toxicity Characteristic (TC) Metal Wastes
a. Lead-Bearing Smelter Wastes
Comments were received from several trade organizations (see
comments from Swidler & Berlin for the Association of Battery
Recyclers, PH4P-00038; Battery Council International, PH4P-00045;
Collier, Shannon, Rill & Scott, PH4P-00077; and, Resource Consultants,
PH4P-00078.A), expressing concern about the proposed application of
Universal Treatment Standard to metal TC wastes generated from the
recycling of lead-acid batteries (lead slags and sludges containing
lead).
The Resource Consultants comment contained limited data which
included concentrations of lead, selenium, and barium in untreated and
treated (stabilized) secondary lead smelter slag and soils. These data
may indicate that their stabilized lead smelter slag cannot achieve the
Universal Treatment Standard limits. In addition, limited data were
submitted to show how these lead wastes differ in composition from
K061. These data will be further assessed by the Agency to determine
whether they may be used to revise the treatment standards for these
constituents, or to identify particular treatability groups for which
revised treatment standards may be promulgated. The Agency is also
reviewing data submitted by the Exide Corporation on HTMR for the
treatment of lead slags.
In addition, the Agency is reviewing information from East Penn
Manufacturing Company, Inc., that seems to indicate that slag can be
returned to the furnace until the metals are no longer present at
hazardous concentrations. (If slag is reclaimed, it is not a solid
waste during the reclamation process because it is a ``byproduct''
under 40 CFR 261.2(c). If the resulting discarded slag is below the
toxicity characteristic levels, the slag is not a hazardous waste and
so would not be subject to the LDRs.)
EPA also at this time wishes to clarify an issue raised with
respect to the applicability of the Land Disposal Restriction Standards
to slags resulting from smelting of lead acid batteries. The LDR
standard for lead acid batteries is specified as RLEAD, or recovery of
lead. (See 40 CFR Section 268.42.) Once the batteries are smelted, the
LDR requirements have been satisfied, and therefore the slag resulting
from this smelting need not be treated further. The standards proposed
under Phase IV (i.e., compliance with UTS) would not apply to this
slag, even if the slag exhibits a characteristic of hazardous waste.
(However, if the slag exhibits a characteristic of hazardous waste, it
must of course be managed under all other applicable, i.e., non-LDR,
hazardous waste requirements.) EPA notes also that if a secondary
smelter accepts materials other than lead acid batteries, then LDR
requirements could apply to the slag, as with any other waste. The
Agency understands, however, that secondary lead smelters routinely
accept some materials closely related to lead acid batteries. EPA does
not think that LDR status of the slags should be affected by these
additional, but closely related lead-bearing items, i.e., the slag
would remain exempt from LDR requirements. The Agency requests comment
on this issue. EPA dealt with a very similar issue in the Boiler and
Industrial Furnace (BIF) regulations (see 56 FR 42517, August 27,
1991). In that rule, the Agency published a list of
[[Page 21420]]
materials that secondary lead smelters may process and still remain
exempt from the BIF regulations, codified at 40 CFR Part 266, Appendix
XI. The Agency requests comment on using this same list for purposes of
defining those materials secondary smelters may accept without changing
the LDR status of their resulting slags.
b. Lead-Bearing Foundry Wastes
The metal foundry industry generates emission control dust and
foundry sand containing cadmium, chronium, lead and selenium. The
American Foundryman's Society submitted comments to the Phase IV Rule
stating that foundry sand is different from K061 and that HTMR is not
demonstrated or available, and stabilization has not been demonstrated
as meeting Universal Treatment Standards for foundry sands. The
comments referred the Agency to data which the Agency is now reviewing.
c. Treatment Standard for D011 Silver TC Wastes
EPA is considering alternative options for the treatment standard
for D011. In comments to the Phase IV rule, the Silver Coalition and
the Eastman Kodak Company each stated that silver should be removed
from the Toxicity Characteristic list of constituents, based on low
risk, or at least EPA should not promulgate a treatment standard for
silver below the TC level of 5.0 mg/l. The regulation of silver as a TC
metal is indeed a subject of concern for EPA. While human health
effects are not major, concern about aquatic toxicity remains. The
Agency is not yet prepared to make a decision on the removal of silver
from the TC list (at 40 CFR 261.24). However, given the low risk to
human health, EPA is considering two possibilities for the treatment
standard, in addition to the proposed treatment standards of 0.43 mg/l
for wastewaters and 0.30 mg/l TCLP for nonwastewaters. One new option
is to revise the Universal Treatment Standard for silver at a higher
value, e.g. the TC regulatory level of 5.0 mg/l. This change would
affect all wastes subject to UTS. The second option is to set the
standard for D011 at the higher level, maintaining the current
Universal Treatment Standard levels for all other wastes containing
silver as a regulated constituent. Comments are requested on these two
new options.
(2) Treatment Standards for Wood Preserving Waste F032, and
Potentially, F024
EPA proposed in the Phase IV proposal to require wood preserving
waste F032 to meet the Universal Treatment Standard for a specific list
of hazardous constituents (see 60 FR 43680; August 22, 1995, and its
Correction Notice, 60 FR 546451, October 25, 1995). The F032
constituents include dioxin and furan (D/F) constituents (Id. at
43681). Most comments on the proposed treatment standards for F032
centered on the need to establish numeric limits for D/F as a means to
ensure proper treatment. As described below, EPA also received new
data. The Agency requests comment on the new data, and on options
presented below. Also, commenters should note that a change in the
proposed treatment standard for F032 may dictate changes in the F024 (a
group of chlorinated aliphatic wastes) treatment standard (see 55 FR
22580-22581, June 1, 1990), as discussed below.
The Penta Task Force's comment (which also included a
characterization study from Vulcan Chemicals) and the comment from the
American Wood Preserving Institute (AWPI) expressed concerns that
promulgation of concentration limits for D/F hazardous constituents in
F032 may discourage commercial incineration facilities from treating
this waste. As a result of this concern, commenters have asked EPA to
consider alternatives to setting D/F concentration limits in its final
rule. The Agency is considering options that would provide F032
generators flexibility, provided that adequate treatment of the waste
is still ensured. Comments are requested on the options and information
discussed below. Under all the options discussed below, the treater
would still have to measure compliance with the proposed Universal
Treatment Standard levels for the non-D/F constituents in the waste.
New Option: Alternative Treatment Standard
This option calls for EPA to establish an alternative treatment
standard that sets incineration as a treatment method for D/F
constituents, in lieu of actually measuring the D/F concentrations in
the treated residues. F032 wastes treated via incineration would have
met the treatment standard for D/F, and disposal would be allowed so
long as the Universal Treatment Standard limits promulgated for other
organic constituents were also met. Under this option, Treatment
Standard levels for each D/F constituent would still be codified so
that compliance with these levels can be monitored in cases when F032
is treated by nonincineration technologies.
This option, suggested by the Penta Task Force and AWPI, is
patterned after a treatment standard promulgated for F024. The
commenters believe that the concentrations of D/F in untreated F032 are
similar to those found in untreated F024, therefore, these two wastes
can be adequately regulated in a similar manner.
a. Preliminary Review of Vulcan's Characterization Study.
Vulcan Chemical submitted a characterization study in an attachment
to the Penta Task Force's comment. This commenter pointed out that the
commercial grade tolerances of pentachlorophenol (PCP) allowed
domestically have D/F levels well below than those EPA reported in the
Listing Background Document for F032, F034, and F035. The commenters
also submitted data on D/F measured in several F032 waste streams from
six wood preserving plants (see comment number PH4P-00032.J). EPA is
currently reviewing these characterization data, however, they appear
to support Vulcan and AWPI's claim that D/F concentrations in F032 have
been reduced in commercial oils and subsequently, in F032 wastes.
The new F032 characterization data do not appear to support a
determination that F032 and F024 are exactly alike. F024 has the
following D/F maximum concentrations: up to 2 ppb for penta-PCDD, 10
ppb for hexa-PCDD, 10 ppb of tetra-PCDF, 30 ppb for penta-PCDF, 50 ppb
for hexa-PCDF, and tetra-PCDD was not detected above 1 ppb. It appears
that F032 may have concentrations of D/F of up to 4.3 ppb for tetra-
PCDD, 590 ppb for hexa-PCDD, 78 ppb for penta-PCDF(estimated), 1,500
ppb for hexa-PCDF, and penta-CDD was not detected. Based on these data,
it appears that the maximum concentrations of penta-PCDD, tetra-PCDF,
and penta-PCDF in F032 are within the same or lower order of magnitude
as those in F024. In contrast, tetra-PCDD and hexa-PCDF maximum
concentrations in F032 diverge by two orders of magnitude with those in
F024. Also, hexa-PCDD maximum concentrations in F032 may exceed by one
order of magnitude those found in F024. However, neither of these
wastes were identified as `acutely toxic' in 40 CFR 261, Subpart D, so
in this sense they are in a similar class.
b. Feasibility of setting ``INCIN'' or ``CMBST'' as an Alternative
Treatment Standard
In spite of some differences between these two wastes, EPA believes
that a treatment standard allowing incineration (or `combustion,' see
discussion below) as an alternative
[[Page 21421]]
standard for D/F in F032 may be technically feasible. One reason is
that incineration is BDAT for dioxin-containing wastes. EPA also
believes that incineration, and in fact, combustion technologies
generally, are among the least matrix-dependant technologies capable of
treating the diverse range of residues that comprise F032. Various
types of incineration have been demonstrated to treat high and low
level D/F constituents below detection limits in incineration residues.
Suboptions under consideration. EPA has identified, however, three
regulatory suboptions for the implementation of Vulcan's proposed
alternative treatment method. Each suboption is discussed below. The
Agency notes that suboptions 2 and 3 would also change the F024
treatment standard. Also, suboptions 2 and 3 are not mutually
exclusive, and both could be selected by the Agency.
Suboption 1: Apply existing F024 alternative combustion treatment
standard to F032.
The treatment standard for F024 was originally limited to
incineration units. In the Phase III final rule (April 8, 1996), EPA
amended the incineration treatment standard (see 40 CFR 268.42, Table
1, `INCIN') to include additional combustion devices (see `CMBST' in
the Phase III final rule). EPA believes that well-operated and well-
designed combustion units can meet the treatment standard for F024 and
F032. Setting CMBST as the treatment standard for D/F in F032 would
allow wider access to a variety of combustion practices.
Suboption 2: Establish F032's and revise F024's CMBST alternative
standard to require the combustion unit to achieve a dioxin emission
standard. One concern with the CMBST treatment standard is that D/F can
be reformed in the post-combustion zone if favorable conditions exist.
Thus, controls may be needed to minimize the potential for forming and
emitting D/F emissions into the atmosphere, and to minimize the
potential for such products of incomplete combustion to be adsorbed
onto wastes. The Agency is concerned that until combustion units are
regulated under the proposed MACT standards discussed below, a simple
CMBST standard for either F024 or F032 could actually lead to increased
air emissions of D/F, or increased concentrations adsorbed onto
combustion wastes, if these F024 and F032 wastes were combusted in
units that foster the formation of D/F. (It also must be remembered
that treatment standards that result in unsafe cross-media transfers of
pollutants do not satisfy the requirements of RCRA section 3004(m)).
See Chemical Waste Management v. EPA, 976 F. 2d 2, 17 (D.C. Cir.
1992).) Studies (see discussion below) show that effective controls to
inhibit D/F formation may include one or more of the following: (1)
rapid quench of combustion gases; (2) air pollution control device's
inlet temperatures of less than 400 F for the flue gas; (3) good
combustion practices (e.g. like higher temperatures, proper mixing in
the combustion zone, and appropriate chemical residence time); and,
finally, (4) activated carbon injection scrubbing, if dioxin emissions
remain high.
Based on studies conducted at various domestic incineration units
such as light weight aggregate kilns and cement kilns, EPA has proposed
regulations that set a maximum toxicity equivalent (TEQ) D/F emission
standard of 0.20 ng/DSCF (corrected to 7% O2) for combustion units
burning RCRA hazardous wastes. (See Proposed Rule (signed March 20,
1996)--Revised Technical Standards Waste Combustion Facilities (http://
www.epa.gov/epaoswer/combust.html.) EPA's studies show that at least
50% of the facilities tested for the proposed combustion rule meet this
MACT limit. EPA is requesting comments on whether this D/F emission
standard should also be codified as a requirement of a CMBST
alternative treatment standard. [For background information regarding
the development and implementation of such an air emission standard,
see the following documents: (1) Proposed Rule (signed March 20,
1996)--Revised Technical Standards Waste Combustion Facilities http://
www.epa.gov/epaoswer/combust.html); (2) Draft Technical Support
Document for HWC MACT Standards, Volume III: Selection of MACT
Standards and Technologies,(see pages 5-1 through 5-6); (3) Combustion
Emission Technical Resource Document (CETRED) (see pages A-54 through
A-56) (OSW: EPA 530-R-94-014, May 1994); and, (4) Performance of
activated carbon injection on dioxin/furan and mercury emissions,
February 23, 1996, memorandum from Shiva Garg of EPA's OSW to DOCKET #
F-96-RCSP-FFFFF.] Compliance would have to be documented at least every
18 months.
Under this suboption, any RCRA permitted or interim status
combustion device capable of demonstrating achievability in meeting the
dioxin (TEQ) air emission discharge limit would be allowed to combust
F032 and F024. Should EPA ultimately select a standard other than 0.2
ng/DSCF, the Agency would of course revisit the LDR standard for F024
and F032.
Suboption 3: Revise F024's CMBST alternative standard (and set
F032's standard) to limit the combustion of F024 and F032 to combustion
devices that have been permitted. A final option would be to limit
combustion of F024 and F032 to combustion devices (i.e., incinerators,
boilers, and industrial furnaces) that have been evaluated as part of
the RCRA permitting process, including potential evaluation under the
omnibus permitting authority set out in RCRA section 3005(c)(3). This
could involve a site-specific evaluation of whether permit conditions
more stringent than those required by the regulations are necessary to
assure that the facility's combustion practices are sufficiently
controlled to be protective of human health and the environment. Since
only permitted facilities are subject to omnibus evaluation, this
option would necessarily limit the eligible combustion devices to those
that have received permits.
A complete list of related references is available in the RCRA
docket for this notice. It is called `Reference List for F032.'
(3) Solid Waste Exclusion of Recycled Wood Preserving Wastewaters
In the Phase IV proposal, EPA announced that it would consider
granting a conditional exclusion from the definition of solid waste for
recycled process wastewaters used in the wood preserving industry,
provided that the Agency received adequate information to grant such an
exclusion. The proposal solicited this information, and specified that
it would have to be sufficient to make an industry-wide determination
that the reclamation operation was an essential part of production, and
that the secondary materials being reclaimed were not likely to be a
part of the waste disposal problem.
In response to this solicitation for information, comments were
submitted from the American Wood Preservers Institute (AWPI), the State
of Oregon Department of Environmental Quality, Universal Forest
Products, Inc., Remediation Technologies, Inc., J.H. Baxter & Company,
the Environmental Defense Fund (EDF), Beazer East, Inc., and Covington
& Burling, pertaining to a possible solid waste exclusion for recycled
wood preserving wastewaters. EPA will review this information to
determine whether this information is adequate.
Specifically, EPA will be reviewing these comments to evaluate the
extent to which they establish that the reclamation of production
wastewaters
[[Page 21422]]
from the wood preserving industry meet the variance criteria found in
40 CFR 260.31(b). As was stated in the Phase IV proposal, if these
criteria can be demonstrated on an industry-wide basis, the Agency may
grant a conditional exclusion from the definition of solid waste for
reclaimed production wastewaters from the wood preserving industry. The
comments from AWPI address each of the 40 CFR 261.31(b) criteria in
some detail. EPA will also review other comments, such as those
submitted by EDF, that question the basis and desirability of granting
the variance on an industry-wide basis. EPA solicits replies to these
particular comments.
EPA has also added to the docket a bill being considered by
Congress that would exempt from regulation wastewaters provided the
materials are ``contained, collected, and reused in an on-site
production process that prevents releases to the environment.'' In
discussions of this issue, representatives of the American Wood
Preservers Association stated that they were not seeking to eliminate
the existing Subpart W standards for drip pads used to collect and
manage drippage from wood preserving. EPA solicits comments on whether
the record supports a national exclusion from the definition of solid
waste for recycled process wastewaters from wood preserving operations
that are returned to the process from which they originated, with the
condition that drippage from the wood is collected and managed on drip
pads that are in compliance with Subpart W drip pad standards and that
there is no release of the wastewaters to the environment.
(4) Capacity Issues
a. Request for More Information on Amounts of TC Metal Wastes and TC-
contaminated Soil
EPA has received comments on the Phase IV proposed rule stating
that application of Universal Treatment Standards to TC metal wastes
will significantly increase the demand for, and costs of, treatment. As
stated in the Supplemental Proposal on mineral processing wastes, EPA
has limited information on quantities of TC metal wastes with which to
analyze available treatment capacity. Comments also indicated that
there may be TC metal-contaminated soil that would require treatment to
meet LDR treatment standards. These commenters argue that there will be
a need for a capacity variance for TC metal-contaminated soils.
Commenters submitted very little data, however, to support their
arguments. EPA requests data to potentially support capacity variances
for TC metal wastes and TC metal-contaminated soils.
Furthermore, as stated in the Supplemental proposal, EPA solicits
information on quantities of characteristic mineral processing wastes,
in order to determine whether adequate capacity exists to treat these
wastes (61 FR 2360). Because data do not exist to support a capacity
variance at this time, EPA is once again urging commenters to provide
information on the quantities, characteristics, and management of the
newly identified mineral processing wastes.
b. Potential Capacity Variance for FMC Corporation
Representatives of FMC Corporation met with EPA to present their
argument that they need a two-year national capacity variance for three
large volume TC metal wastewater streams (Medusa Scrubber Blowdown,
Anderson Filter Media Rinsate, and Furnace Building Washdown) that are
generated at its Pocatello, Idaho facility. (A memorandum summarizing
this meeting is part of the record for this rulemaking.) FMC believes
that these three wastewaters pose unique treatability problems because
of elemental phosphorous contamination and naturally occurring
radioactive material. They argue that the logistics and costs to ship
these wastestreams off-site for treatment are impractical and
prohibitive. FMC also stated that a survey of off-site treatment
facilities shows that no permitted TSDF can currently handle these
wastestreams. As such, FMC believes it will need a two-year national
capacity variance to develop and construct treatment capacity for these
wastewater streams and thus comply with Phase IV. FMC intends to submit
detailed documentation supporting its claim for a two-year national
capacity variance. If it is submitted in a timely fashion, EPA will
make it available to the public during the comment period for this
notice, and will potentially use this information in determining
whether a capacity variance is needed.
Summary
In conclusion, the Agency is making available to the public new
data it has received since the Phase IV proposal (or alerting the
public to data it expects to receive immediately). Comments are
requested on the data and their possible use, as discussed in this
notice. In addition, the Agency is requesting data on TC metal wastes,
TC metal-contaminated soil, and mineral processing wastes and
contaminated soils, that could be used to determine the need for
capacity variances, since the Agency currently lacks such data.
Dated: May 3, 1996.
Michael Shapiro,
Director, Office of Solid Waste.
[FR Doc. 96-11740 Filed 5-9-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-11739 Clean Air Act Reclassification; Arizona-Phoenix Nonattainment Area; Carbon Monoxide
[Federal Register Volume 61, Number 92 (Friday, May 10, 1996)]
[Proposed Rules]
[Pages 21415-21418]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11739]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 81
[AZR92-0004; FRL-5503-8]
Clean Air Act Reclassification; Arizona-Phoenix Nonattainment
Area; Carbon Monoxide
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA proposes to find that the Phoenix, Arizona carbon monoxide
(CO) nonattainment area has not attained the CO national ambient air
quality standard (NAAQS) by the Clean Air Act (CAA) mandated attainment
date for moderate nonattainment areas, December 31, 1995. This proposed
finding is based on EPA's review of monitored air quality data for
compliance with the CO NAAQS. If EPA takes final action on this
proposed finding, the Phoenix CO nonattainment area will be
reclassified by operation of law as a serious nonattainment area. The
intended effect of such a
[[Page 21416]]
reclassification would be to allow the State additional time to submit
a new State implementation plan (SIP) providing for attainment of the
CO NAAQS by no later than December 31, 2000, the CAA attainment
deadline for serious CO areas.
DATES: Written comments on this proposal must be received by June 10,
1996.
ADDRESSES: Written comments should be sent to: Wallace Woo, Chief,
Plans Development Section, A-2-2, U.S. Environmental Protection Agency,
Region 9, 75 Hawthorne Street, San Francisco, California 94105.
The rulemaking docket for this notice, Docket No. 96-AZ-PL-002, may
be inspected and copied at the following location between 8 a.m. and
4:30 p.m. on weekdays. A reasonable fee may be charged for copying
parts of the docket.
U.S. Environmental Protection Agency, Region 9, Air and Toxics
Division, Plans Development Section, A-2-2, 75 Hawthorne Street, San
Francisco, California 94105.
Copies of the docket are also available at the State office listed
below: Arizona Department of Environmental Quality, Library, 3033 North
Central Avenue, Phoenix, Arizona 85012.
FOR FURTHER INFORMATION CONTACT: Jerry Wamsley, A-2-2, Air and Toxics
Division, U.S. Environmental Protection Agency, Region 9, 75 Hawthorne
Street, San Francisco, California 94105, (415) 744-1226.
SUPPLEMENTARY INFORMATION:
I. Background
A. CAA Requirements and EPA Actions Concerning Designation and
Classifications
The Clean Air Act Amendments of 1990 (CAA) were enacted on November
15, 1990. Under section 107(d)(1)(C) of the CAA, each carbon monoxide
(CO) area designated nonattainment prior to enactment of the 1990
Amendments, such as the Phoenix area, was designated nonattainment by
operation of law upon enactment of the 1990 Amendments. Under section
186(a) of the Act, each CO area designated nonattainment under section
107(d) was also classified by operation of law as either ``moderate''
or ``serious'' depending on the severity of the area's air quality
problem. CO areas with design values between 9.1 and 16.4 parts per
million (ppm), such as the Phoenix area, were classified as moderate.
These nonattainment designations and classifications were codified in
40 CFR part 81. See 56 FR 56694 (November 6, 1991).
States containing areas that were classified as moderate
nonattainment by operation of law under section 107(d) were required to
submit State implementation plans (SIPs) designed to attain the CO
national ambient air quality standard (NAAQS) as expeditiously as
practicable but no later than December 31, 1995.1
---------------------------------------------------------------------------
\1\ The moderate area SIP requirements are set forth in section
187(a) of the Act and differ depending on whether the area's design
value is below or above 12.7 ppm. The Phoenix area has a design
value below 12.7 ppm. 40 CFR part 81.303.
---------------------------------------------------------------------------
B. Reclassification to a Serious Nonattainment Area
EPA has the responsibility, pursuant to sections 179(c) and
186(b)(2) of the CAA, of determining, within six months of the
applicable attainment date whether the Phoenix area has attained the CO
NAAQS. Under section 186(b)(2)(A), if EPA finds that the area has not
attained the CO NAAQS, it is reclassified as serious by operation of
law. Pursuant to section 186(b)(2)(B) of the Act, EPA must publish a
notice in the Federal Register identifying areas which failed to attain
the standard and therefore must be reclassified as serious by operation
of law.
EPA makes attainment determinations for CO nonattainment areas
based upon whether an area has two years (or eight consecutive
quarters) of clean air quality data.2 Section 179(c)(1) of the Act
states that the attainment determination must be based upon an area's
``air quality as of the attainment date.'' Consequently, EPA will
determine whether an area's air quality has met the CO NAAQS by
December 31, 1995 based upon the most recent two years of air quality
data entered into the Aerometric Information Retrieval System (AIRS)
data base.
---------------------------------------------------------------------------
\2\ See generally memorandum from Sally L. Shaver, Director, Air
Quality Strategies and Standards Division, EPA, to Regional Air
Office Directors, entitled ``Criteria for Granting Attainment Date
Extensions, Making Attainment Determinations, and Determinations of
Failure to Attain the NAAQS for Moderate CO Nonattainment Areas,''
October 23, 1995 (Shaver memorandum).
---------------------------------------------------------------------------
EPA determines a CO nonattainment area's air quality status in
accordance with 40 CFR part 50.8 and EPA policy.3 EPA has
promulgated two NAAQS for CO: an 8-hour average concentration and a 1-
hour average concentration. Because there were no violations of the 1-
hour standard in the Phoenix area in 1994 and 1995, this notice
addresses only the air quality status of the Phoenix area with respect
to the 8-hour standard. The 8-hour CO NAAQS requires that not more than
one non-overlapping 8-hour average per year per monitoring site can
exceed 9.0 ppm (values below 9.5 are rounded down to 9.0 and they are
not considered exceedances). The second exceedance of the 8-hour CO
NAAQS at a given monitoring site within the same year constitutes a
violation of the CO NAAQS.
---------------------------------------------------------------------------
\3\ See memorandum from William G. Laxton, Director Technical
Support Division, entitled ``Ozone and Carbon Monoxide Design Value
Calculations'', June 18, 1990. See also Shaver memorandum.
---------------------------------------------------------------------------
C. Attainment Date Extensions
If a state does not have the two consecutive years of clean data
necessary to show attainment of the NAAQS, it may apply, under section
186(a)(4) of the CAA, for a one year attainment date extension. EPA
may, in its discretion, grant such an extension if the state has: (1)
Complied with the requirements and commitments pertaining to the
applicable implementation plan for the area, and (2) the area has
measured no more than one exceedance of the CO NAAQS at any monitoring
site in the nonattainment area in the year preceding the extension
year. Under section 186(a)(4), EPA may grant up to two such extensions
if these conditions have been met.
II. Today's Action
By today's action, EPA is proposing to find that the Phoenix CO
nonattainment area has failed to demonstrate attainment of the CO NAAQS
by December 31, 1995. This proposed finding is based upon air quality
data showing violations of the CO NAAQS during 1994 and 1995.
A. Ambient Air Monitoring Data
The following table lists each of the monitoring sites in the
Phoenix CO nonattainment area where the 8-hour CO NAAQS has been
exceeded during 1994 and 1995.
[[Page 21417]]
Exceedances of 8-hour CO NAAQS for Phoenix Nonattainment Area
----------------------------------------------------------------------------------------------------------------
1994 1995
Monitoring site ---------------------------------------------------------------------------
Concentration Date Concentration Date
----------------------------------------------------------------------------------------------------------------
3847 W. Earll Drive................. 9.6 ppm.................... 12/3
(1)None recorded.
10.0 ppm................... 12/17 .........................
1845 E. Roosevelt Street............ 9.7 ppm.................... 12/17
(1)None recorded.
2710 N.W. Grand Avenue.............. ........................... .......
(1)None recorded
9.89 ppm................... 11/23
10.23 ppm.................. 12/2
9.5 ppm.................... 12/3
3315 W. Indian School Road.......... 9.7 ppm.................... 12/2 10.1 ppm................... 12/2
10.4 ppm................... 12/3 9.5 ppm.................... 12/3
10.5 ppm................... 12/17
----------------------------------------------------------------------------------------------------------------
1. 1994 Data
In a March 1995 letter to EPA,4 Arizona requested that the
1994 exceedances of the CO NAAQS at the West Indian School Road
monitoring site be ``flagged'' as affected by ``exceptional events'' as
those terms are defined in EPA guidance.5 In the same letter, the
State requested that the December 17, 1994 exceedance at the West Earll
Drive monitoring site be invalidated because that monitor had failed an
audit. In response, EPA requested more information to evaluate the
exceptional event claims at the West Indian School Road monitoring site
and disapproved the State's request to invalidate the December 17, 1994
exceedance at the West Earll Drive monitoring site.6
---------------------------------------------------------------------------
\4\ See letter from Edward Z. Fox, Director, Arizona Department
of Environmental Quality to David P. Howekamp, Director, Air &
Toxics Division, EPA, Region IX, March 31, 1995.
\5\ EPA has established criteria and procedures to identify or
flag data which may be affected by exceptional events (e.g.,
structural fires or industrial accidents) in its ``Guideline on the
Identification and Use of Air Quality Data Affected by Exceptional
Events,'' July 1986. Under the flagging system, state and local air
pollution control agencies are responsible for initially identifying
and documenting data influenced by exceptional events. These
agencies are expected to develop the appropriate background
information necessary to support a decision to flag an individual
piece of data. The agencies must then submit the information to EPA
for concurrence. Flagging a piece of data or data set does not
exclude that data from being used for nonattainment designations or
classifications. The actual exclusion would only be allowed if, as a
result of a public review process, the responsible government
agency, in this case EPA, determines that the data are inappropriate
for use in a specific regulatory activity.
\6\ See letter from David P. Howekamp, Director, EPA, to Russell
F. Rhoades, Director, Arizona Department of Environmental Quality,
November 27, 1995.
---------------------------------------------------------------------------
In response to EPA's request for more information, on March 25,
1996, the Arizona Department of Environmental Quality (ADEQ) submitted
to EPA additional documentation, prepared by the Maricopa Association
of Governments (MAG), on the West Indian School Road exceedances.7
On April 12, 1996, EPA responded to ADEQ's submittal by concluding that
MAG's claims that these 1994 exceedances were affected by exceptional
events (unusual traffic conditions and air stagnation conditions) were
not supported by the submitted documentation. EPA stated that minor
traffic accidents are common in any metropolitan area and that air
stagnation conditions routinely occur during the CO season in the
Phoenix area. See letter from David P. Howekamp, EPA, to Russell
Rhoades, ADEQ, April 12, 1996.
---------------------------------------------------------------------------
\7\ See letter from Russell F. Rhoades, ADEQ, to David Howekamp,
EPA, March 25, 1996.
---------------------------------------------------------------------------
Furthermore, as demonstrated in the table above, even if the West
Indian School Road exceedances were deemed to be exceptional events and
ultimately rejected for use in the Phoenix area's attainment status
determination, there would still be two exceedances in 1994 at West
Earll Drive since EPA disapproved the State's request to invalidate the
December 17, 1994 exceedance. As discussed in section I.B. of this
notice, the second exceedance at a given monitoring site in the same
year constitutes a violation. Therefore, based on the 1994 data alone,
EPA has concluded that the Phoenix area cannot be deemed to have
attained the CO NAAQS by December 31, 1995.
2. 1995 Data
As demonstrated by the above table, the monitoring data indicate
that Phoenix area recorded violations of the CO NAAQS in 1995 at Grand
Avenue (three exceedances) and West Indian School Road (two
exceedances). To date, the State has made no claims to EPA that the
exceedances recorded at these monitoring sites are invalid for the
purpose of determining the area's attainment status. However, EPA is
aware that there have been ongoing communications between ADEQ and MAG
regarding potential exceptional events claims for all except one of
these exceedances (December 3, 1995 at West Indian School Road).8
MAG has recommended that ADEQ flag all 1995 exceedances at Grand Avenue
and the December 2, 1995 exceedance at West Indian School Road as being
affected by traffic accidents, freeway ramp closures, meteorological
considerations, and other events. In response, ADEQ stated that in
order to meet EPA's Exceptional Event Guideline, MAG would have to
submit appropriate documentation demonstrating a causal relationship
between the events and measured air quality, and referred MAG to EPA's
November 27, 1995 letter on the appropriate documentation regarding
traffic accidents. EPA concurs with ADEQ's assessment and refers the
reader for further detail to the correspondence between MAG and ADEQ.
---------------------------------------------------------------------------
\8\ See e.g., letter from Roger A. Herzog, MAG, to Russell F.
Rhoades, ADEQ, February 22, 1996; letter from Nancy Wrona, ADEQ, to
John DeBolske, MAG, March 29, 1996.
---------------------------------------------------------------------------
Based on the MAG/ADEQ correspondence, EPA believes that the 1995
exceedances are valid for use in determining the attainment status of
the Phoenix area. EPA is therefore proposing to find, based on the 1994
and 1995 CO violations discussed above, that the area did not attain
the CO NAAQS by December 31, 1995. Similarly, because of the 1995
violations, EPA does not believe that the area could qualify for a one
year extension of the attainment deadline.9
---------------------------------------------------------------------------
\9\ On March 11, 1996, MAG requested that ADEQ flag as affected
by exceptional events (unusual traffic conditions and meteorological
considerations) CO NAAQS exceedances on January 10 and 13, 1996 at
Grand Avenue. See letter from Roger A. Herzog, MAG, to Russell F.
Rhoades, ADEQ, March 11, 1996, attached to letter from Russell F.
Rhoades to David Howekamp, March 25, 1996. In its March 25, 1996
letter to EPA, ADEQ submitted documentation from MAG in support of
these claims. These 1996 exceedances, while lending additional
support to EPA's proposed finding of failure to attain based on the
1994 and 1995 data, are relevant to today's proposal in only one
respect. If EPA were to conclude that the Phoenix area qualified for
a one year extension of the attainment date, the 1996 exceedances,
if validated as a NAAQS violation, would prevent the area from
obtaining a second one year extension. As stated above, EPA does not
believe the Phoenix area can qualify for the first extension.
Moreover, EPA does not believe that the 1996 exceedances were
affected by exceptional events. See letter from David P. Howekamp,
EPA to Russell Rhoades, ADEQ, April 12, 1996. Therefore, the 1996
data are not addressed further in this notice.
---------------------------------------------------------------------------
[[Page 21418]]
B. SIP Requirements for Serious CO Areas
CO nonattainment areas reclassified as serious under section
186(b)(2) of the CAA are required to submit, within 18 months of the
area's reclassification, SIP revisions demonstrating attainment of the
CO NAAQS as expeditiously as practicable but no later than December 31,
2000. The serious CO area planning requirements are set forth in
section 187(b) of the CAA. EPA has issued two general guidance
documents related to the planning requirements for CO SIPs. The first
is the ``General Preamble for the Implementation of Title I of the
Clean Air Act Amendments of 1990'' that sets forth EPA's preliminary
views on how the Agency intends to act on SIPs submitted under Title I
of the Act. See generally 57 FR 13498 (April 16, 1992) and 57 FR 18070
(April 28, 1992). The second general guidance document for CO SIPs
issued by EPA is the ``Technical Support Document to Aid the States
with the Development of Carbon Monoxide State Implementation Plans,''
July 1992.
If the Phoenix area is reclassified to serious, the State would
have to submit a SIP revision to EPA that, in addition to the
attainment demonstration, includes: (1) a forecast of vehicle miles
travelled (VMT) for each year before the attainment year and provisions
for annual updates of these forecasts; (2) adopted contingency
measures; and (3) adopted transportation control measures and
strategies to offset any growth in CO emissions from growth in VMT or
number of vehicle trips. See CAA sections 187(a)(7), 187(a)(2)(A),
187(a)(3), 187(b)(2), and 187(b)(1). Upon reclassification, contingency
measures in the moderate area plan for the Phoenix area must be
implemented.
III. Executive Order (EO) 12866
Under E.O. 12866, 58 FR 51735 (October 4, 1993), EPA is required to
determine whether regulatory actions are significant and therefore
should be subject to OMB review, economic analysis, and the
requirements of the Executive Order. The Executive Order defines a
``significant regulatory action'' as one that is likely to result in a
rule that may meet at least one of the four criteria identified in
section 3(f), including, under paragraph (1), that the rule may ``have
an annual effect on the economy of $100 million or more or adversely
affect, in a material way, the economy, a sector of the economy,
productivity, competition, jobs, the environment, public health or
safety, or State, local, or tribal governments or communities.''
The Agency has determined that the finding of failure to attain
proposed today would result in none of the effects identified in
section 3(f). Under section 186(b)(2) of the CAA, findings of failure
to attain and reclassification of nonattainment areas are based upon
air quality considerations and must occur by operation of law in light
of certain air quality conditions. They do not, in-and-of-themselves,
impose any new requirements on any sectors of the economy. In addition,
because the statutory requirements are clearly defined with respect to
the differently classified areas, and because those requirements are
automatically triggered by classifications that, in turn, are triggered
by air quality values, findings of failure to attain and
reclassification cannot be said to impose a materially adverse impact
on State, local, or tribal governments or communities.
IV. Regulatory Flexibility
Under the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small not-for-profit
enterprises, and government entities with jurisdiction over populations
of less than 50,000.
As discussed in section III of this notice, findings of failure to
attain and reclassification of nonattainment areas under section
186(b)(2) of the CAA do not in-and-of-themselves create any new
requirements. Therefore, I certify that today's proposed action does
not have a significant impact on small entities.
Unfunded Mandates
Under sections 202, 203 and 205 of the Unfunded Mandates Reform Act
of 1995 (Unfunded Mandates Act), signed into law on March 22, 1995, EPA
must assess whether various actions undertaken in association with
proposed or final regulations include a Federal mandate that may result
in estimated costs of $100 million or more to the private sector, or to
State, local or tribal governments in the aggregate.
Clean Air Act Reclassification; Arizona-Phoenix; Carbon Monoxide 14
EPA believes, as discussed above, that the proposed finding of
failure to attain and reclassification of the Phoenix nonattainment
area are factual determinations based upon air quality considerations
and must occur by operation of law and, hence, do not impose any
Federal intergovernmental mandate, as defined in section 101 of the
Unfunded Mandates Act.
List of Subjects in 40 CFR Part 81
Environmental protection, Air pollution control, Intergovernmental
relations, Carbon monoxide.
Authority: 42 U.S.C. sections 7401-7671q.
Dated: April 29, 1996.
Felicia Marcus,
Regional Administrator.
[FR Doc. 96-11739 Filed 5-9-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-11738 Hazardous Air Pollutants: Amendment to Regulations Governing Equivalent Emission Limitations by Permit
[Federal Register Volume 61, Number 92 (Friday, May 10, 1996)]
[Proposed Rules]
[Pages 21414-21415]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11738]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63
[AD-FRL-5503-2]
Hazardous Air Pollutants: Amendment to Regulations Governing
Equivalent Emission Limitations by Permit
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: On May 20, 1994, the Agency promulgated a rule in the Federal
Register (59 FR 26429) governing the establishment of equivalent
emission limitations by permit, pursuant to section 112(j) of the Clean
Air Act (Act). After the effective date of a Title V permit program in
a State, each owner or operator of a major source in a source category
for which the EPA was scheduled to, but failed to promulgate a section
112(d) emission standard will be required to obtain an equivalent
emission limitation by permit. The permit application must be submitted
to the Title V permitting authority 18 months after the EPA's missed
promulgation date. This action proposes to amend the original
Regulations Governing Equivalent Emission Limitations by Permit rule to
delay the section 112(j) permit application deadline for all 4-year
source categories listed in the regulatory schedule by 180 days until
November 15, 1996. This action is needed to alleviate unnecessary
paperwork for both major source owners or operators and permitting
agencies. Because the changes are merely to delay the permit
application deadline for all 4 year source categories, the EPA does not
anticipate receiving adverse comments. Consequently the revisions are
also being issued as a direct final rule in the final rules section of
this Federal Register. If no significant adverse comments are timely
received, no further action will be taken with respect to this
proposal, and the direct final rule will become final on the date
provided in that action.
DATES: Comments. Comments must be received on or before June 10, 1996,
unless a hearing is requested by May 20, 1996. If a hearing is
requested, written comments must be received by June 24, 1996.
Public Hearing. Anyone requesting a public hearing must contact the
EPA no later than May 20, 1996. If a hearing is held, it will take
place on May 28, 1996, beginning at 10:00 a.m.
ADDRESSES: Comments. Comments should be submitted (in duplicate, if
possible) to: Air and Radiation Docket and Information Center (6102),
Attention Docket No. A-93-32 (see docket section below), Room M-1500,
U.S. Environmental Protection Agency, 401 M Street, S.W., Washington,
D.C. 20460. The EPA requests that a separate copy also be sent to the
contact person listed below.
Public Hearing. If a public hearing is held, it will be held at the
EPA's Office of Administration Auditorium, Research Triangle Park,
North Carolina. Persons interested in attending the hearing or wishing
to present oral testimony should notify Ms. Yvonne Chandler, U.S.
Environmental Protection Agency, Research Triangle Park, N.C. 27711,
telephone (919) 541-5627.
Docket. Docket No. A-93-32, containing the supporting information
for the original Regulations Governing Equivalent Emission Limitations
by Permit rule is available for public inspection and copying between
8:00
[[Page 21415]]
a.m. and 5:30 p.m., Monday through Friday, at the EPA's Air and
Radiation Docket and Information Center (6102), 401 M Street, S.W.,
Washington, D.C. 20460, or by calling (202) 260-7548. A reasonable fee
may be charged for copying.
FOR FURTHER INFORMATION CONTACT: Mr. James Szykman or Mr. Anthony
Wayne, Emission Standards Division (MD-13), U.S. Environmental
Protection Agency, Research Triangle Park, North Carolina 27711,
telephone (919) 541-2452 (Szykman) or (919) 541-5439 (Wayne).
SUPPLEMENTARY INFORMATION: If no significant, adverse comments are
timely received, no further activity is contemplated in relation to
this proposed rule, and the direct final rule in the final rules
section of this Federal Register will automatically go into effect on
the date specified in that rule. If significant adverse comments are
timely received, the direct final rule will be withdrawn, and all
public comment received will be addressed in a subsequent final rule.
Because the EPA will not institute a second comment period on this
proposed rule, any parties interested in commenting should do so during
this comment period.
For further supplemental information, the detailed rationale, and
the rule provisions, see the information provided in the direct final
rule in the final rules section of this Federal Register.
Administrative
A. Regulatory Impact Analysis
This rule was classified ``non-significant'' under Executive Order
12866 and, therefore, was not reviewed by the Office of Management and
Budget.
B. Impact on Reporting Requirements
The information collection requirements of the previously
promulgated rule for Regulations Governing Equivalent Emission
Limitations by Permit were submitted to and approved by the Office of
Management and Budget. A copy of this Information Collection Request
(ICR) document (OMB control number 2060-0266) may be obtained from
Sandy Farmer, OPPE Regulatory Information Division (2136), U.S.
Environmental Protection Agency, 401 M Street, S.W., Washington, D.C.
20460, or by calling (202) 260-2740. Today's proposed revisions to the
deadline for submittal of section 112(j) permit applications does not
affect the information collection burden estimates made previously.
Therefore, the ICR has not been revised.
C. Impact on Small Entities
The Regulatory Flexibility Act of 1980 requires the identification
of potentially adverse impacts of Federal regulations upon small
business entities. The Act specifically requires the completion of a
Regulatory Flexibility Analysis in those instances where small business
impacts are possible. Because this proposed rulemaking imposes no
economic impacts, adverse or otherwise, a Regulatory Flexibility
Analysis has not been prepared.
Pursuant to the provisions of 5 U.S.C. 605(b), I hereby certify
that this rule will not have a significant economic impact on a
substantial number of small business entities.
D. Reduction of Governmental Burden
Executive Order 12875 (``Enhancing the Intergovernmental
Partnership'') is designed to reduce the burden to State, local, and
Tribal governments of the cumulative effect of unfunded Federal
mandates. The Order recognizes the need for these entities to be free
from unnecessary Federal regulation to enhance their ability to address
problems they face and provides for Federal agencies to grant waivers
to these entities from discretionary Federal requirements. The Order
applies to any regulation that is not required by statute and that
creates a mandate upon a State, local, or Tribal government. The EPA
anticipates that there will be no additional cost burden imposed on
State, local, and Tribal governments as a result of today's action.
Indeed, the purpose of the action is to reduce unnecessary burden on
permitting agencies.
E. Environmental Justice
Executive Order 12898 requires that each Federal agency shall make
achieving environmental justice part of its mission by identifying and
addressing, as appropriate, disproportionately high and adverse human
health or environmental effects of its programs, policies, and
activities on minority and low-income populations. Today's action will
help ensure timely compliance and the application of consistent
regulatory requirements by allowing the section 112(d) MACT standards
to become effective without triggering an unnecessary section 112(j)
process. Therefore, no adverse human health or environmental effects
are anticipated as a result of today's action.
F. Unfunded Mandates
Under Section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), the 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, the EPA must select the most cost-
effective and least burdensome alternative that achieves the objectives
of the rule and is consistent with statutory requirements. Section 203
requires the EPA to establish a plan for informing and advising any
small governments that may be significantly or uniquely impacted by the
rule.
The EPA has determined that the action proposed today does not
include a Federal mandate that may result in estimated costs of $100
million or more to either State, local, or tribal governments in the
aggregate, or to the private sector. Therefore, the requirements of the
Unfunded Mandates Act do not apply to this action.
List of Subjects in 40 CFR Part 63
Environmental protection, Administrative practices and procedures,
Air pollution control, Hazardous substances, Intergovernmental
relations, Reporting and recordkeeping requirements.
Dated: May 3, 1996.
Carol M. Browner,
Administrator.
[FR Doc. 96-11738 Filed 5-9-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-11726 Proposed Modification of the Dallas/Fort Worth Class B Airspace Area; TX
[Federal Register Volume 61, Number 92 (Friday, May 10, 1996)]
[Proposed Rules]
[Pages 21910-21915]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11726]
[[Page 21909]]
_______________________________________________________________________
Part VII
Department of Transportation
_______________________________________________________________________
Federal Aviation Administration
_______________________________________________________________________
14 CFR Part 71
Proposed Modification of the Dallas/Fort Worth Class B Airspace Area,
TX; Proposed Rule
Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Proposed
Rules
[[Page 21910]]
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 71
[Airspace Docket No. 94-AWA-2]
Proposed Modification of the Dallas/Fort Worth Class B Airspace
Area; TX
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking (NPRM).
-----------------------------------------------------------------------
SUMMARY: This notice proposes to modify the Dallas/Forth Worth (DFW)
Class B airspace area. Specifically, this proposal would raise the
upper limit of the DFW Class B airspace area from 10,000 feet mean sea
level (MSL) to 11,000 feet MSL, except in the reconfigured northern and
southern sections, and would redefine several existing subareas. The
FAA is proposing this rule to improve the flow of aviation traffic and
enhance safety in the DFW Class B airspace area while accommodating the
concerns of airspace users.
DATES: Comments must be received on or before June 24, 1996.
ADDRESSES: Send comments on the proposal in triplicate to the Federal
Aviation Administration, Office of Chief Counsel, Attention: Rules
Docket, AGC-200, Airspace Docket No. 94-AWA-2, 800 Independence Avenue,
SW, Washington, DC 20591. The official docket may be examined in the
Rules Docket, Office of the Chief Counsel, Room 916, 800 Independence
Avenue, SW., Washington, DC, weekdays except Federal holidays, between
8:30 a.m. and 5:00 p.m. An informal docket may also be examined during
normal business hours at the Office of the Regional Air Traffic
Division.
FOR FURTHER INFORMATION CONTACT:
William C. Nelson, Airspace and Rules Division, ATA-400, Office of
Airspace Management, Federal Aviation Administration, 800 Independence
Avenue, SW., Washington, DC 20591; telephone: (202) 267-3075.
SUPPLEMENTARY INFORMATION:
Comment 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 should be
submitted in triplicate to the address listed above. Commenters wishing
the FAA to acknowledge receipt of their comments on this notice must
submit with those comments a self-addressed, stamped postcard on which
the following statement is made: ``Comments to Airspace Docket No. 94-
AWA-2''. The postcard will be date/time stamped and returned to the
commenter. All communications received on or before the specified
closing date for comments will be considered before taking action on
the proposed rule. The proposal contained in this notice may be changed
in light of comments received. All comments submitted will be available
for examination in the Rules Docket both before and after the closing
date for comments. A report summarizing each substantive public contact
with FAA personnel concerned with this rulemaking will also be filed in
the docket.
Availability of NPRM's
Any person may obtain a copy of this NPRM by submitting a request
to the Federal Aviation Administration, Office of Air Traffic Airspace
Management, 800 Independence Avenue, SW., Washington, DC 20591, or by
calling (202) 267-3075. Communications must identify the notice number
of this NPRM. Persons interested in being placed on a mailing list for
future NPRM's should call the FAA's Office of Rulemaking, (202) 267-
9677 for a copy of Advisory Circular No. 11-2A, Notice of Proposed
Rulemaking Distribution System, that describes the application
procedure.
Background
The Class B airspace area (formerly TCA) program was developed to
reduce the potential for midair collision in the congested airspace
surrounding airports with high density air traffic by providing an area
wherein all aircraft are subject to certain operating rules and
equipment requirements.
The density of traffic and the type of operations being conducted
in the airspace surrounding major terminals increase the probability of
midair collisions. In 1970, an extensive study found that the majority
of midair collisions occurred between a general aviation (GA) aircraft
and an air carrier or military aircraft, or another GA aircraft. The
basic causal factor common to these conflicts was the mix of aircraft
operating under visual flight rules (VFR) and aircraft operating under
instrument flight rules (IFR). Class B airspace areas provide a method
to accommodate the increasing number of IFR and VFR operations. The
regulatory requirements of Class B airspace areas afford the greatest
protection for the greatest number of people by giving air traffic
control (ATC) increased capability to provide aircraft separation
service; thereby minimizing the mix of controlled and uncontrolled
aircraft. On May 21, 1970, the FAA published the Designation of Federal
Airways, Controlled Airspace, and Reporting Points final rule (35 FR
7782). This rule provided for the establishment of Terminal Control
Areas (TCA). To date, the FAA has established a total of 29 Class B
airspace areas. The FAA is proposing to take action to modify or
implement the application of these proven control areas to provide
greater protection for air traffic in the airspace areas most commonly
used by passenger-carrying aircraft.
The standard configuration of a Class B airspace area contains
three concentric circles centered on the primary airport extending to
10, 20, and 30 nautical miles (NM), respectively. The standard vertical
limits of the Class B airspace area normally should not exceed 10,000
feet MSL, with the floor established at the surface in the inner area
and at levels appropriate to the containment of operations in the outer
areas. Variations of these criteria may be utilized contingent on the
terrain, adjacent regulatory airspace, and factors unique to the
terminal area.
The coordinates for this airspace docket are based on North
American Datum 83. Class B airspace areas are published in Paragraph
3000 of FAA Order 7400.9C dated August 17, 1995, and effective
September 16, 1995, which is incorporated by reference in 14 CFR
section 71.1. The Class B airspace area listed in this document would
be published subsequently in the Order.
Related Rulemaking Actions
On June 21, 1988, the FAA published the Transponder with Automatic
Altitude Reporting Capability Requirement Final Rule (53 FR 23356).
This rule requires all aircraft to have an altitude encoding
transponder when operating within 30 NM of any designated TCA primary
airport from the surface up to 10,000 feet MSL. This rule excluded
those aircraft that were not originally certificated with an engine
driven electrical system, balloons, or gliders.
On October 14, 1988, the FAA published the TCA Classification and
[[Page 21911]]
TCA Pilot and Navigation Equipment Requirements Final Rule (53 FR
40318). This rule, in part, removed the different classifications of
TCA's, and requires the pilot-in-command of a civil aircraft operating
within a TCA to hold at least a private pilot certificate, except for a
student pilot who has received certain documented training.
On December 17, 1991, the FAA published the Airspace
Reclassification Final Rule (56 FR 65655). This rule discontinued the
use of the term ``Terminal Control Area'' (TCA) and replaced it with
the designation ``Class B airspace area.'' This change in terminology
is reflected in this NPRM.
Pre-NPRM Public Input
In June 1992 an ad hoc committee was formed to represent all major
users to analyze the DFW Class B airspace area and to develop
recommendations for modifying the existing design. The ad hoc committee
met regularly at various locations throughout the DFW area for
approximately one year. The ad hoc committee submitted written comments
on modifying the DFW Class B airspace area.
As announced in the Federal Register on October 30, 1993, (58 FR
54073) and on January 31, 1994, (59 FR 4310), pre-NPRM airspace
meetings were held on December 8, 1993, in Mesquite, TX, December 13,
1993, in North Richland Hills, TX, April 5, 1994, in North Richland
Hills, TX, and April 7, 1994, in Mesquite, TX. These meetings provided
local airspace users with an opportunity to present input on the design
of the proposed modifications of the DFW Class B airspace area. All
comments received during the informal airspace meetings and the
subsequent comment periods were considered and incorporated, in part,
in this proposed modification. Verbal and written comments received,
and the FAA's findings, are summarized below.
Analysis of Comments
Some commenters recommended that portions of the Class B airspace
area be reconfigured into VFR corridors.
The FAA did not adopt this recommendation. After thorough review,
it was determined that this recommended reconfiguration was not
feasible. However, to accommodate the recommendation the FAA proposes
to amend the airspace south of victor(V) airways, V16/94 from Class B
to Class E airspace, reducing the lateral limits of the Class B
airspace south of DFW Airport.
Certain commenters recommended that the Class B airspace area be
decreased in size in the vicinity of Grand Prairie Airport and that
prominent visual landmarks be used to assist pilots in identifying the
airspace boundaries.
The FAA supports this recommended modification and proposes to
modify the DFW Class B airspace area in the vicinity of Grand Prairie
Municipal Airport by moving the 7 NM boundary north to follow
Interstate 30 (I-30) and the 10 NM arc north to follow State Highway
303 (SH-303).
Some commenters recommended that the DFW Class B airspace area be
modified near the Addison Airport (ADS) to increase traffic pattern
airspace for ingress/egress to/from the ADS.
The FAA supports this recommendation and proposes to modify the DFW
Class B airspace area in the vicinity of the ADS by raising the floor
of the DFW Class B airspace from the surface to 2,000 feet MSL south of
Lyndon Baines Johnson (LBJ) Freeway to Forest Lane, and west of ADS to
Marsh Lane.
Recommendations were made to modify the DFW Class B airspace area
in the vicinity of Naval Air Station Dallas (NAS Dallas) to allow for
uniform transition for those aircraft operating in the airspace south
of DFW Airport, and in the vicinity north of the Redbird Airport from
2,500 feet MSL to 3,500 feet MSL.
The FAA supports these recommendations, in part, and proposes to
raise the floor of the DFW Class B airspace area from the surface to
2,000 feet MSL in the vicinity of NAS Dallas, and to raise the floor of
the DFW Class B airspace area north of the Redbird Airport from 2,500
feet MSL to 3,000 feet MSL.
The Airline Transport Association of America (ATA) proposed raising
the ceiling of the DFW Class B airspace area from 10,000 feet MSL to
11,000 feet MSL.
The FAA agrees with this recommendation and proposes to raise the
ceiling of the DFW Class B airspace area, excluding that airspace
overlying the V66/278 and V16/94 airways north and south of the DFW
Airport to provide airspace for high performance aircraft while
allowing non-participating aircraft to access certain airways above
10,000 feet MSL.
Two areas of concern surfaced relative to the airspace located
between 20 and 30 NM west of DFW Airport. First, ATC, for air traffic
separation purposes, sometimes assigns altitudes below the floor of
this portion of the DFW Class B airspace area. Second, some commenters
complained that the current floor of 5,000 feet MSL hinders VFR non-
participating aircraft desiring to transit the airspace beyond 25 NM.
The FAA proposes to lower the floor of the airspace from 5,000 feet MSL
to 4,000 feet MSL between 20 and 23 MN west, and to raise the floor of
the airspace from 5,000 feet MSL to 6,000 feet MSL between 26 and 30 MN
west. This would alleviate both concerns while enhancing aviation
safety and airspace utilization.
One written comment received after the December 1993 airspace
meetings questioned the need for the proposed expansion of the DFW
Class B airspace area northwest of the Alliance Airport.
The FAA proposes to decrease the overall amount of DFW Class B
airspace area by restructuring the area northwest of Alliance Airport.
While there is some proposed expansion northwest of the Alliance
Airport, this proposed modification would provide a safer transition
area for those aircraft operating into and out of the Alliance Airport.
The Proposal
The FAA proposes to amend 14 CFR part 71 by modifying the DFW Class
B airspace area. Specifically, this proposal (depicted in the attached
chart) would raise the upper limit of the DFW Class B airspace area
from 10,000 feet MSL to 11,000 feet MSL, except in the reconfigured
northern and southern sections, and would redefine several existing
subareas. the FAA is proposing to amend the airspace south of victor
airways V-16/94 from Class B to Class E airspace.
This proposal would realign the boundaries of the Class B airspace
area north of Grand Prairie Municipal Airport to follow Interstate 30
(I-30) and State Highway 303 (SH-303) south of DFW. In addition, this
proposed rule would raise the floor of the Class B airspace area to
2,000 feet MSL in the vicinity of NAS Dallas, south of LBJ Freeway to
Forest Lane, and west of ADS to marsh Lane, and 3,000 feet MSL north of
Redbird Airport. Further, the FAA proposes to lower the floor of the
airspace from 5,000 feet MSL to 4,000 feet MSL between 20 and 23 NM
west, and to raise the floor of the airspace from 5,000 feet MSL to
6,000 feet MSL between 26 and 30 NM west. This proposal would enhance
safety and improve the flow of aviation traffic in the DFW Class B
airspace area.
Regulatory Evaluation Summary
Proposed changes to Federal regulations must undergo several
economic analyses. First, Executive order 12866 directs that each
Federal agency shall propose or adopt a regulation only upon a reasoned
[[Page 21912]]
determination that the benefits of the intended regulation justify its
costs. Second, the Regulatory Flexibility Act of 1980 requires agencies
to analyze the economic effect of regulatory changes on small entities.
Third, the Office of management and Budget directs agencies to assess
the effect of regulatory changes on international trade. In conducting
these analyses, the FAA has determined that the proposed rule would
generate benefits that justify its costs and is not ``a significant
regulatory action'' as defined in the Executive Order and the
Department of Transportation Regulatory policies and Procedures. The
proposal would not have a significant impact on substantial number of
small entities and would not constitute a barrier to international
trade. These analyses, available in the docket, are summarized below.
Costs
The FAA has determined that the proposed modification of the DFW
Class B airspace area would result in little or no cost to either the
agency or aircraft operators, as discussed in the following paragraphs.
The proposal would not impose any additional administrative costs
on the FAA for either personnel or equipment. Projected increases in
traffic volume would be absorbed by current personnel and equipment
resources through more efficient services. Revising aeronautical charts
to reflect the change of the airspace area would not add to the cost of
the routine and periodic updating of the charts.
The proposal would not require additional avionics equipment for
aircraft. Aircraft operators that currently use the affected airspace
should already have Mode C transponders. In addition, aircraft
operators should also have two-way radio communications. The density of
air traffic in the DFW area makes it highly unlikely that VFR traffic
would transit this airspace without two-way radio equipment.
Finally, the proposal should not significantly increase the cost to
pilots who wish to remain clear of the proposed expanded areas of the
DFW Class B airspace area. The pilots would need to make only small
deviations from their current flight paths to avoid the proposed
expanded areas of Class B airspace.
Benefits
The proposed rule is expected to generate benefits primarily in the
form of improved traffic flow while enhancing safety. Traffic flow
would improve because air traffic controllers could more efficiently
handle the increasing number of operations at the DFW International
Airport. Based on the FAA's Terminal Area Forecast, total aircraft
operations at the DFW International Airport were about 831,000 in 1994,
up from 504,000 in 1984, and are projected to increase to about
1,009,000 by the year 2000. Also, passenger enplanements were estimated
to be 25.5 million in 1994, up from 15.5 million in 1984, and are
projected to increase to about 35.3 million by the year 2000. The
proposed rule would enhance safety by lowering the risk of midair
collisions. This lower risk would result from the increased control in
those areas where Class B airspace would be expanded.
The proposed rule would benefit GA aircraft operators by
contracting the Class B airspace in certain areas. Additionally, it
would simplify the airspace area.
Regulatory Flexibility Determination
The Regulatory Flexibility Act of 1980 (RFA) was enacted by
Congress to ensure that small entities are not unnecessarily or
disproportionately burdened by Federal regulations. The RFA requires a
Regulatory Flexibility Analysis if a proposed rule would have ``a
significant economic impact on a substantial number of small
entities.'' FAA Order 2100.14A outlines the FAA's procedures and
criteria for implementing the RFA. Small entities are independently
owned and operated small businesses and small not-for-profit
organizations. A substantial number of small entities is defined as a
number that is 11 or more and which is more than one-third of the small
entities subject to this proposal. The FAA has determined that the
proposal would not result in a significant economic impact on a
substantial number of small entities. Therefore, a regulatory
flexibility analysis is not required under the terms of the RFA.
International Trade Impact Assessment
The proposal would not constitute a barrier to international trade,
including the export of U.S. goods and services to foreign countries
and the import of foreign goods and services to the United States. This
proposal would not impose costs on aircraft operators or aircraft
manufacturers in the United States or foreign countries. The
modification of the Class B airspace area would only affect U.S.
terminal airspace operating procedures at and in the vicinity of
Dallas-Fort Worth, TX. The proposal would not have international trade
ramifications because it is a domestic airspace matter that would not
impose additional costs or requirements on affected entities.
Federalism Implications
This proposed rule would not have substantial direct effects on the
states, the relationship between the national government and the
states, or the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 12612 (52 FR 41695; October 30, 1987), it is determined that this
proposed rule does not have sufficient federalism implications to
warrant the preparation of a Federalism Assessment.
Paperwork Reduction Act
This proposed rule contains no information collection requests
requiring approval of the Office of Management and Budget pursuant to
the Paperwork Reduction Act (44 U.S.C. 3507 et seq.).
International Civil Aviation Organization (ICAO) and Joint Aviation
Regulations (JAR)
The FAA has determined that this proposal, if adopted, would not
conflict with any international agreements of the United States.
Conclusion
For reasons discussed in the preamble, and based on the findings in
the Regulatory Flexibility Determination and the International Trade
Impact Assessment, the FAA has determined that this regulation is not a
``significant regulatory action'' under Executive Order 12866. In
addition, the FAA certifies that this regulation would not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. This regulation is not considered significant under
DOT Order 2100.5, Policies and Procedures for Simplification, Analysis
and Review of Regulations. A regulatory evaluation of the proposed
regulation, including a Regulatory Flexibility Determination and
International Trade Impact Assessment has been placed in the docket. A
copy may be obtained by contacting the person identified under FOR
FURTHER INFORMATION CONTACT.
List of Subjects In 14 CFR Part 71
Airspace, Incorporation by Reference, Navigation (Air).
[[Page 21913]]
The Proposed Amendment
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 3000--Subpart B--Class B Airspace
* * * * *
ASW TX B Dallas/Fort Worth, TX [Revised]
Dallas/Fort-Worth International Airport (Primary Airport)
(Lat. 32 deg.53'49''N., long. 97 deg.02'33''W.)
Dallas/Fort-Worth VORTAC
(Lat. 32 deg.51'57''N., long. 97 deg.01'41'' W.)
Boundaries
Area A. That airspace extending upward from the surface to and
including 11,000 feet MSL beginning at the intersection of the DFW
VORTAC 10-mile arc and Josey Lane, thence southbound on Josey Lane
to Forest Lane, thence eastbound on Forest Lane until Interstate 635
(that also coincides with the DFW VORTAC 15-mile arc), extending
clockwise on the DFW VORTAC 15-mile arc until the DFW VORTAC
129 deg. radial 15-mile DME fix, thence northwest on the DFW VORTAC
129 deg. radial until Interstate 30, extending west on Interstate 30
until the DFW VORTAC 7-mile arc, thence clockwise on the DFW VORTAC
7-mile arc until the DFW VORTAC 310 deg. radial, 7-mile DME fix,
extending northwest on the DFW VORTAC 310 deg. radial until the DFW
VORTAC 310 deg. radial 10-mile DME fix, and extending clockwise on
the DFW VORTAC 10-mile arc to the point of beginning.
Area B. That airspace extending upward from 2,000 feet MSL to
and including 11,000 feet MSL beginning at the DFW VORTAC 310 deg.
radial 10-mile DME fix, thence southeast on the DFW VORTAC 310 deg.
radial until the DFW VORTAC 310 deg. radial 7-mile DME fix,
extending counterclockwise on the DFW VORTAC 7-mile arc until
Interstate 30, thence eastbound on Interstate 30 to the DFW VORTAC
129 deg. radial, thence southeast on the DFW VORTAC 129 deg. radial
until the DFW VORTAC 129 deg. radial 10-mile DME fix, extending
clockwise on the DFW VORTAC 10-mile arc until Highway 303, thence
west on Highway 303 until the DFW VORTAC 10-mile DME arc, and
extending clockwise on the DFW VORTAC 10-mile arc to the DFW VORTAC
300 deg. radial 10-mile DME fix, thence northwest on the 300 deg.
radial until the DFW VORTAC 300 deg. 13-mile DME fix, extending
clockwise on the DFW VORTAC 13-mile arc until the DFW VORTAC
023 deg. radial 13-mile DME fix, thence southeast on the DFW VORTAC
023 deg. radial until the DFW VORTAC 023 deg. radial 10-mile DME
fix, extending counterclockwise on the DFW VORTAC 10-mile arc to the
DFW VORTAC 310 deg. 10-mile DME fix; and that airspace extending
upward from 2,000 feet MSL to and including 11,000 feet MSL
beginning at the intersection of the DFW VORTAC 10-mile arc and
Josey Lane, thence southbound on Josey Lane to Forest Lane, thence
eastbound on Forest Lane to Interstate 635, thence westbound on
Interstate 635 to the DFW VORTAC 10-mile arc, and extending
counterclockwise on the DFW VORTAC 10-mile arc to the point of
beginning.
Area C. That airspace extending upward from 2,500 feet MSL to
and including 11,000 feet MSL beginning at the intersection of the
DFW VORTAC 15-mile arc and Interstate 635, extending clockwise on
the DFW VORTAC 15-mile arc until the DFW VORTAC 129 deg. radial 15-
mile DME fix, thence southeast on the DFW VORTAC 129 deg. radial
until the DFW VORTAC 129 deg. radial 20-mile DME fix, extending
counterclockwise on the DFW VORTAC 20-mile arc until Interstate 635,
and extending northwest along Interstate 635 to the point of
beginning.
Area D. That airspace extending upward from 3,000 feet MSL to
and including 11,000 feet MSL beginning at the DFW VORTAC 300 deg.
radial 10-mile DME fix, extending counterclockwise on the DFW VORTAC
10-mile arc to Highway 303, thence eastbound on Highway 303 until
the DFW VORTAC 10-mile arc, extending counterclockwise on the DFW
VORTAC 10-mile arc to the DFW VORTAC 129 deg. radial, thence
southeast along the DFW VORTAC 129 deg. radial until the DFW VORTAC
129 deg. radial 20-mile DME fix, extending clockwise on the DFW
VORTAC 20-mile arc until the DFW VORTAC 217 deg. radial, thence
northeast on the DFW VORTAC 217 deg. radial until the DFW VORTAC
217 deg. radial 13-mile DME fix, extending clockwise along the DFW
VORTAC 13-mile arc to the DFW VORTAC 300 deg. radial 13-mile DME
fix, and thence southeast on the DFW VORTAC 300 deg. radial to the
point of beginning; and that airspace extending upward from 3,000
feet MSL to and including 11,000 feet MSL beginning at the DFW
VORTAC 300 deg. radial 13-mile DME fix, thence northwest on the DFW
VORTAC 300 deg. radial until the DFW VORTAC 300 deg. radial 20-mile
DME fix, extending clockwise on the DFW VORTAC 20-mile arc until
Interstate 635, extending northwest along Interstate 635 until the
DFW VORTAC 10-mile arc, extending counterclockwise on the DFW VORTAC
10-mile arc until the DFW VORTAC 023 deg. radial 10-mile DME fix,
thence northeast on the DFW VORTAC 023 deg. radial until the DFW
VORTAC 023 deg. radial 13-mile DME fix, and extending
counterclockwise on the DFW VORTAC 13-mile arc to the point of
beginning.
Area E. That airspace extending upward from 4,000 feet MSL to
and including 11,000 feet MSL beginning at the DFW VORTAC 217 deg.
radial 20-mile DME fix, extending counterclockwise on the DFW VORTAC
20-mile arc until the DFW VORTAC 300 deg. radial 20-mile DME fix,
thence southeast on the DFW VORTAC 300 deg. radial until the DFW
VORTAC 300 deg. radial 13-mile DME fix, extending counterclockwise
on the DFW VORTAC 13-mile arc until the DFW VORTAC 217 deg. radial
13-mile DME fix, thence southwest on the DFW VORTAC 217 deg. radial
until the DFW VORTAC 217 deg. radial 20-mile fix, extending
clockwise on the DFW VORTAC 20-mile arc until Interstate 820, thence
west and north on Interstate 820 until the DFW VORTAC 23-mile arc,
extending clockwise on the DFW VORTAC 23-mile arc until Highway 156,
thence northeast on Highway 156 until the DFW VORTAC 329 deg.
radial, thence northwest on the DFW VORTAC 329 deg. radial until
intercepting a line defined by the DFW VORTAC 041 deg. radial 30 DME
fix and the DFW VORTAC 315 deg. radial 30 DME fix, thence east along
that line defined by the DFW VORTAC 041 deg. radial 30 DME fix and
the DFW VORTAC 315 deg. radial 30 DME fix until the DFW VORTAC 30-
mile arc, extending clockwise on the DFW VORTAC 30-mile arc until
the DFW VORTAC 138 deg. radial 30-mile DME fix, thence west until
the DFW VORTAC 217 deg. radial 28.3 mile DME fix, and thence
northeast on the DFW VORTAC 217 deg. radial until the point of
beginning.
Area F. That airspace extending upward from 4,000 feet MSL to
and including 10,000 feet MSL beginning at the DFW VORTAC 138 deg.
radial 30-mile DME fix, extending clockwise on the DFW VORTAC 30-
mile arc until the DFW VORTAC 162 deg. radial 30-mile DME fix,
thence west until the DFW VORTAC 196 deg. radial 30-mile DME fix,
extending clockwise on the DFW VORTAC 30-mile arc until the DFW
VORTAC 217 deg. radial 30-mile DME fix, and thence northeast on the
DFW VORTAC 217 deg. radial until the DFW VORTAC 217 deg. radial
28.3-mile DME fix, and thence east on a line to the point of
beginning; and that airspace extending upward from 4,000 feet MSL to
and including 10,000 feet MSL beginning at the DFW 315 deg. radial
30-mile DME fix, extending clockwise on the DFW 30-mile arc until
the DFW 336 deg. radial 30-mile DME fix, thence east until the DFW
020 deg. radial 30-mile DME fix, extending clockwise on the DFW 30-
mile arc until the DFW 041 deg. radial 30-mile DME fix, and thence
west on a line until the point of beginning.
Area G. That airspace extending upward from 5,000 feet MSL, up
to and including 11,000 feet MSL beginning at the DFW VORTAC
315 deg. radial 30-mile DME fix, extending counterclockwise on the
DFW VORTAC 30-mile arc until the DFW VORTAC 293 deg. radial, thence
southeast on the DFW VORTAC 293 deg. radial until the DFW VORTAC 26-
mile DME fix, extending counterclockwise on the DFW VORTAC 26-mile
arc until Highway 377, thence southwest on Highway 377 until the DFW
VORTAC 30-mile arc, and counterclockwise to the DFW VORTAC 217 deg.
radial 30-mile DME fix, thence northeast on the DFW VORTAC 217 deg.
radial until the DFW VORTAC 20-mile arc, extending clockwise on the
20-mile arc until Interstate 820, thence west and north on
Interstate 820 until the DFW VORTAC 23-mile arc, thence clockwise on
the DFW VORTAC 23-mile arc until Highway 156, extending northeast on
Highway 156 to the DFW VORTAC 329 deg. radial, thence northeast on
the DFW VORTAC 329 deg. radial,
[[Page 21914]]
until intercepting a line defined by the DFW VORTAC 041 deg. radial
30-mile DME fix and the DFW VORTAC 315 deg. radial 30-mile DME fix,
thence west along that line until the point of beginning.
Area H. That airspace extending upward from 6,000 feet MSL to
and including 11,000 feet MSL beginning at the DFW VORTAC 293 deg.
radial 30-mile DME fix, thence southeast on the DFW VORTAC 293 deg.
radial until the DFW VORTAC 293 deg. radial 26-mile DME fix,
extending counterclockwise on the DFW VORTAC 26-mile arc until
Highway 377, thence southwest on Highway 377 until the DFW VORTAC
30-mile arc, and extending clockwise on the DFW VORTAC 30-mile arc
until the point of beginning.
* * * * *
Issued in Washington, DC, on May 2, 1996.
Nancy B. Kalinowski,
Acting Program Director for Air Traffic Airspace Management, ATA-1.
Note: This appendix will not appear in the Code of Federal
Regulations.
BILLING CODE 4910-13-M
[[Page 21915]]
Appendix--Dallas/Fort Worth International Airport Class B Airspace
Area
[GRAPHIC] [TIFF OMITTED] TN10MY96.083
[FR Doc. 96-11726 Filed 5-9-96; 8:45 am]
BILLING CODE 4910-13-C
Complete official Federal Register PDF
FR Doc. 96-11724 Implementation of Section 109 of the Communications Assistance for Law Enforcement Act
[Federal Register Volume 61, Number 92 (Friday, May 10, 1996)]
[Proposed Rules]
[Pages 21395-21404]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11724]
=======================================================================
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[[Page 21396]]
DEPARTMENT OF JUSTICE
Federal Bureau of Investigation
28 CFR Part 100
RIN 1105-AA39
Implementation of Section 109 of the Communications Assistance
for Law Enforcement Act
AGENCY: Federal Bureau of Investigation, DOJ.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This rule establishes the procedures whereby
telecommunications carriers can recover the costs associated with
complying with the Communications Assistance for Law Enforcement Act
(CALEA), which requires telecommunications carriers to ensure law
enforcement's ability, pursuant to court order or other lawful
authorization, to intercept communications notwithstanding advanced
telecommunications technologies.
DATES: Written comments must be received on or before July 9, 1996.
ADDRESSES: Comments should be submitted in triplicate to the
Telecommunications Contracts and Audit Unit, Federal Bureau of
Investigation, P.O. Box 221286, Chantilly, VA 22022-1286, Attention:
CALEA FR Representative, telephone number (703) 814-4900.
FOR FURTHER INFORMATION CONTACT:
Walter V. Meslar, Unit Chief, Telecommunications Contracts and Audit
Unit, Federal Bureau of Investigation, P.O. Box 221286, Chantilly, VA
22022-1286, telephone number (703) 814-4900.
SUPPLEMENTARY INFORMATION: Recent and continuing advances in
telecommunications technology and the introduction of new digitally-
based services and features have, in some instances, impaired the
ability of federal, state, and local law enforcement agencies to fully
and properly conduct various types of court-authorized electronic
surveillance. Therefore, on October 25, 1994, the President signed into
law the Communications Assistance for Law Enforcement Act (CALEA)
(Public Law 103-414, 47 U.S.C. 1001-1010). This law requires
telecommunications carriers, as defined in CALEA, to ensure law
enforcement's ability, pursuant to court order or other lawful
authorization, to intercept communications notwithstanding advanced
telecommunications technologies.
Under CALEA, certain implementation responsibilities are conferred
upon the Attorney General; the Attorney General has, in turn, delegated
responsibilities set forth in CALEA to the Director, FBI, or his
designee, pursuant to 28 CFR 0.85(o). The Director, FBI, has designated
personnel in the Engineering Section of the Information Resources
Division and the Property Procurement and Management Section of the
Finance Division to carry out these responsibilities.
Definition of ``Telecommunications Carrier''
CALEA defines a ``telecommunications carrier'' as any ``person or
entity engaged in the transmission or switching of wire or electronic
communications as a common carrier for hire'' (section 102(8)(A)), and
includes any ``person or entity engaged in providing commercial mobile
service, (as defined in section 332(d) of the Communication Act of
1934, as amended (47 U.S.C. 332(d))'' (section 102(8)(B)). This
definition includes, but is not limited to, local exchange and
interexchange carriers; competitive access providers; resellers, cable
operators, utilities, and shared tenant services providers, to the
extent that they offer telecommunications services as common carriers
for hire; cellular telephone companies; personal communications
services (PCS) providers; satellite-based mobile communications
providers; specialized mobile radio services (SMRS) providers and
enhanced SMRS providers; and paging service providers.
The Federal Communications Commission (FCC) may determine that a
person or entity who is not a common carrier is subject to CALEA if
that person or entity provides wire or electronic communication service
and the FCC concludes that such service is a replacement for a
substantial portion of the local telephone exchange service and that it
is in the public interest to deem such a person or entity to be a
telecommunications carrier for purposes of CALEA.
The definition does not include (1) persons or entities insofar as
they are engaged in providing information services such as electronic
publishing and messaging services; and (2) any class or category of
telecommunications carriers that the FCC exempts by rule after
consultation with the Attorney General.
Capability Requirements
CALEA requires telecommunications carriers to ensure that, within
four years of the date of enactment, their systems have the capability
to meet the Assistance Capability Requirements as described in section
103 of CALEA. These requirements are that a telecommunications carrier
shall ensure that its equipment, facilities, or services that provide a
customer or subscriber with the ability to originate, terminate, or
direct communications are capable of--
(1) expeditiously isolating and enabling the government, pursuant
to a court order or other lawful authorization, to intercept, to the
exclusion of any other communications, all wire and electronic
communications carried by the carrier within a service area to or from
equipment, facilities, or services of a subscriber of such carrier
concurrently with their transmission to or from the subscriber's
equipment, facility, or service, or at such later time as may be
acceptable to the government;
(2) expeditiously isolating and enabling the government, pursuant
to a court order or other lawful authorization, to access call-
identifying information that is reasonably available to the carrier--
(A) before, during, or immediately after the transmission of a wire or
electronic communications (or at such later time as may be acceptable
to the government); and (B) in a manner that allows it to be associated
with the communication to which it pertains, except that, with regard
to information acquired solely pursuant to the authority for pen
registers and trap and trace devices (as defined in section 3127 of
Title 18, United States Code), such call-identifying information shall
not include any information that may disclose the physical location of
the subscriber (except to the extent that the location may be
determined from the telephone number);
(3) delivering intercepted communications and call-identifying
information to the government, pursuant to a court order or lawful
authorization, in a format such that they may be transmitted by means
of equipment, facilities, or services procured by the government to a
location other than the premises of the carrier; and
(4) facilitating authorized communication interceptions and access
to call-identifying information unobtrusively and with a minimum of
interference with any subscriber's telecommunications service and in a
manner that protects--(A) the privacy and security of communications
and call-identifying information not authorized to be intercepted; and
(B) information regarding the government's interception of
communications and access to call-identifying information.
[[Page 21397]]
Under section 107(a)(2) of CALEA, a carrier will be deemed to be in
compliance if it adheres to publicly available technical requirements,
feature descriptions, or standards adopted by an industry association
or standard-setting organization relevant to CALEA. Telecommunications
carriers may also develop their own solutions. In any case, carriers
must meet the requirements set forth in Section 103 of CALEA. If no
technical requirements or standards are issued, or if they are
challenged as being deficient, upon petition, the FCC has authority to
develop them through a rule making.
Capacity Requirements
Section 104 of CALEA requires that the Attorney General, after
seeking public notice and comment, establish and publish:
(1) Notice of the actual number of communications interceptions,
pen registers, and trap and trace devices representing a portion of the
maximum capacity required to accommodate all of the communication
interceptions, pen registers, and trap and trace devices that the
Attorney General estimates that the government agencies authorized to
conduct electronic surveillance may conduct and use simultaneously by
the date 4 years after the date of enactment of CALEA, and
(2) Notice of the maximum capacity required to accommodate all of
the communication interceptions, pen registers, and trap and trace
devices that the Attorney General estimates that the government
agencies authorized to conduct electronic surveillance may conduct and
use simultaneously after the date that is 4 years after the date of
enactment of CALEA.
On October 16, 1995 the FBI proposed for comment those notices (60
FR 53643), and on November 9, 1995 the comment period was extended
until January 16, 1996.
Section 104 of CALEA also provides that within 180 days after the
publication of the final notice of capacity requirements, a
telecommunications carrier shall submit to the Attorney General a
statement identifying any of the systems or services that do not have
the capacity to accommodate simultaneously the number of interceptions,
pen registers, and trap and trace devices set forth in that notice. The
FBI intends to use those statements as a basis from which to solicit
cooperative agreements to reimburse carriers for reasonable costs of
modifications performed to comply with CALEA capability and capacity
requirements, based on available funding.
Industry Implementation
Industry's compliance with the requirements set forth in section
103 of CALEA is affected by a number of interrelated factors, including
whether the Attorney General is required to, and has agreed to, pay for
needed modifications, and whether the equipment, facility, or service
was installed or deployed on or before January 1, 1995.
In the case of equipment, facilities, and services installed or
deployed after January 1, 1995, compliance is dependant upon whether
the necessary modifications are reasonably achievable as determined by
the FCC using criteria set forth in CALEA. These criteria are as
follows:
(1) The effect on public safety and national security.
(2) The effect on rates for basic residential telephone service.
(3) The need to protect the privacy and security of communications
not authorized to be intercepted.
(4) The need to achieve the capability assistance requirements of
section 103 of CALEA by cost effective methods.
(5) The effect on the nature and cost of the equipment, facility or
service at issue.
(6) The effect on the operation of the equipment, facility, or
service at issue.
(7) The policy of the United States to encourage the provision of
new technologies and services to the public.
(8) The financial resources of the telecommunications carrier.
(9) The effect on competition in the provision of
telecommunications services.
(10) The extent to which the design and development of the
equipment, facility, or service was initiated before January 1, 1995.
(11) Such other factors as the FCC determines are appropriate.
Telecommunications carriers also may petition regulatory
authorities to adjust charges, practices, classifications, and
regulations to recover costs expended for making needed modifications
to equipment, facilities, or services pursuant to the assistance
capability requirements of CALEA section 103. CALEA also includes
provisions for exemption, extension of the compliance date,
consultation with industry, and systems security. Noncompliance may
lead to civil actions by the Attorney General and the imposition of
civil fines. In addition, it requires telecommunications transmission
and switching equipment manufacturers, as well as providers of
telecommunications support services, to cooperate with
telecommunications carriers in achieving the required capacities and
capabilities.
Section 109 of CALEA, Payment of Costs of Telecommunications
Carriers to Comply with Capability Requirements, authorizes the
Attorney General, subject to the availability of appropriations, to
agree to pay telecommunications carriers for: (1) all reasonable costs
directly associated with the modifications performed by carriers in
connection with equipment, facilities, and services installed or
deployed on or before January 1, 1995, to establish the capabilities
necessary to comply with section 103 of CALEA; (2) additional
reasonable costs directly associated with making the assistance
capability requirements found in section 103 of CALEA reasonably
achievable with respect to equipment, facilities, or services installed
or deployed after January 1, 1995, in accordance with the procedures
established in CALEA section 109(b); and, (3) reasonable costs directly
associated with modifications of any of a carrier's systems or
services, as identified in the Carrier Statement required by CALEA
section 104(d), which do not have the capacity to accommodate
simultaneously the number of interceptions, pen registers, and trap and
trace devices set forth in the Capacity Notice(s) published in
accordance with CALEA section 104.
CALEA section 109(e), Cost Control Regulations, authorizes the
Attorney General, after notice and comment, to establish regulations
necessary to effectuate timely and cost-efficient payment to
telecommunications carriers under CALEA, under 18 U.S.C. chapters 119
and 121 and under the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801 et seq.).
CALEA directs the Attorney General to consult with the FCC prior to
the establishment of regulations that will allow for cost recovery by
telecommunications carriers of reasonable costs incurred for
compliancy.
Regulations shall minimize the cost to the Federal Government and
permit recovery by telecommunications carriers of the direct costs of
developing necessary modifications for CALEA compliance, including
providing the capabilities requested, providing capacities requested,
the costs of training personnel in the use of such capabilities and
capacities, and the direct costs of deploying or installing such
capabilities and capacities.
In the case of any modification that may be used for any purpose
other than lawfully authorized electronic surveillance by a law
enforcement agency of a government, CALEA permits
[[Page 21398]]
the recovery of only the incremental cost of making the modification
suitable for such law enforcement purposes.
Establishment of Cost Recovery Rules and Procedures
The regulations proposed herein are intended to ensure that each
carrier's practices used in estimating costs are consistent with the
current cost accumulating and reporting procedures utilized by the
carrier for the preparation of its financial statements. Further, these
regulations establish that not all expenses reportable in accordance
with generally accepted accounting principles will be eligible for
reimbursement. Consistency in the application of cost accounting
practices is necessary to enhance the likelihood that comparable
transactions are treated alike. Consistent application of internal cost
accounting practices will facilitate the preparation of reliable cost
estimates and allow comparison with the costs of performance. Such
comparisons provide an important basis for financial control over costs
and aid in establishing accountability for cost in the manner agreed to
by both parties.
These regulations also ensure that each cost is allocated only once
and on only one basis to a cost group. The criteria for determining the
allocation of costs to a cost group should be the same for all similar
groupings.
The following proposed cost recovery rules will be incorporated in
any cooperative agreement established under section 109 of CALEA and
entered into between the carriers and the FBI. Subsequent to the
submission to the FBI of the Carrier Statements, as required under
section 104(d) of CALEA, the FBI will directly solicit cooperative
agreements from the carriers based upon available funding. A separate
Federal Register notice concerning carrier statements will be published
soon. These rules were developed to establish the procedures whereby
carriers may seek reimbursement under section 109(a) and 104(e) of
CALEA. Cost recovery under section 109(b)(2) of CALEA will be
determined pursuant to the procedures set forth in section 109(b)(1) of
CALEA in accordance with these cost recovery rules as promulgated. To
the extent possible, these rules will allow carriers to utilize their
existing accounting procedures to record the costs of bringing
equipment, facilities, and services into compliance with CALEA.
Applicable Administrative Procedures and Executive Orders
Regulatory Flexibility Act
As required by section 603 of the Regulatory Flexibility Act, the
FBI has prepared this Initial Regulatory Flexibility Analysis (IRFA)
section to ascertain the expected impact on small entities of the
regulations proposed in this document. The FBI is obligated to
implement the mandate of Congress as set out in CALEA. Therefore, these
regulations were developed to establish the mechanism whereby
telecommunications carriers can recover the costs associated with
complying with CALEA. The FBI seek to subject all carriers to the same
regulatory policy (proposed herein), while allowing carriers to utilize
their existing accounting systems in the reimbursement process.
Pursuant to the goal of imposing the least burden on carriers while
also fulfilling the obligation to adhere to Government fiscal
accountability requirements, the proposed regulations specify reporting
objectives rather than specifying the manner in which these records
must be kept. The FBI estimates that approximately three thousand
(3,000) telecommunications carriers may be affected by these rules.
While most carriers are not large in terms of capitalization, most are
dominant within their markets, so they are not considered ``small'' for
the purposes of the Regulatory Flexibility Act. Although it is not
anticipated that any small carriers will be adversely affected, these
proposed rules have been written to allow any such carriers to seek
reimbursement in an equitable manner. Therefore, these regulations seek
to allow these carriers to use their current recordkeeping procedures,
along with the existing skill levels on their staffs. As mandated by
section 603(c) of the Regulatory Flexibility Act, consideration was
given to alternative forms of compliance requirements for the small
entities affected by these proposed rules. However, the FBI determined
that these alternatives were not viable in that they would require the
carriers to alter their internal accounting methodologies, would not
take into account carrier individuality with respect to directly
allocable costs or would violate CALEA's mandate to reimburse carriers'
reasonable costs, while maintaining Government fiscal accountability
requirements. This Proposed Rule solicits comments on both the proposed
regulations and their possible impact on small entities. The FBI will
send a copy of these proposed rules, including this IRFA, to the Chief
Counsel for Advocacy of the Small Business Administration in accordance
with section 603(a) of the Regulatory Flexibility Act, Public Law 96-
354, 94 Stat. 1164, 5 U.S.C. 601 et seq. There are no federal rules
that overlap, duplicate or conflict with these rules.
Executive Order 12612
These regulations will not have substantial direct effects on the
States, on the relationship between the national Government and the
States, or on distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 12612, it is determined that this rule does not have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment.
Executive Order 12866
The FBI has examined these proposed regulations in light of
Executive Order 12866 and has found that they constitute a significant
regulatory action under sections 3(f)(1) and 3(f)(4). Pursuant to
Executive Order 12866, 28 CFR part 100 is the draft text of the
regulatory actions that are required under CALEA. These proposed
regulations promulgate procedures whereby carriers may seek
reimbursement for their efforts to assist law enforcement in preserving
electronic surveillance capabilities as mandated by CALEA, which
authorizes appropriations of $500 million for carrier reimbursement.
These regulations have been developed in order to effect the least
burden on the administrative staffs of both the carriers and the
Government while maintaining the Government's obligation to adhere to
its fiscal accountability requirements. In order to accomplish this
goal, the proposed regulations specify reporting objectives rather than
specifying the manner in which these records must be kept. As mandated
by Executive Order 12866, consideration was given to potentially
effective and feasible alternatives to the proposed regulations.
However, the FBI determined that alternative requirements were not
viable in that they would require the carriers to alter their internal
accounting methodologies, would not take into account carrier
individuaity with respect to directly allocable costs and violate
CALEA's mandate to maintain Government fiscal accountability standards
in the reimbursement process.
Unfunded Mandates Reform Act of 1995
As required by Title II of the Unfunded Mandates Reform Act of
1995, this section assesses the effects of
[[Page 21399]]
the proposed regulations on State, local and tribal governments and the
private sector. These regulations are required under section 109(e) of
CALEA. No unfunded mandate is imposed upon State, and local or tribal
governments by these regulations. Therefore, sections 203 and 204 of
the Unfunded Mandates Reform Act do not apply to these proposed rules.
However, the FBI has determined that these proposed rules are subject
to sections 201, 202, and 205 of the Unfunded Mandates Reform Act.
While the telecommunications industry is primarily affected by these
proposed rules, all reasonable costs, as shall be defined in 28 CFR
part 100, incurred by the private sector will be subject to
reimbursement from the $500 million authorized to be appropriated by
Congress under CALEA section 110. Furthermore, CALEA sections 109 and
104 specifically establish the conditions whereby a telecommunications
carrier may be deemed in compliance with regard to the equipment,
facilities or services covered in these proposed regulations should the
Government not agree to reimburse the carrier for the compliance
effort. Accurate estimates of the effects on the national economy of
this part, which is proposed so that carriers may seek reimbursement
for their efforts to assist law enforcement in preserving electronic
surveillance capabilities as mandated by CALEA, are not feasible. As
mandated by section 205 of the Unfunded Mandates Reform Act,
consideration was given to potentially effective and feasible
alternates to the proposed rules. However, the FBI determined that
alternative requirements were not viable in that they would require the
carriers to alter their internal accounting methodologies, would not
take into account carrier individuality with respect to directly
allocable costs and violated CALEA's mandate to maintain Government
fiscal accountability standards in the reimbursement process.
Information Collection Under Review
The proposed information collection is published to obtain comments
from the public and affected agencies. Comments are encouraged and will
be accepted for sixty days from the date listed at the top of this page
in the Federal Register. This process is conducted in accordance with
the Paperwork Reduction Act of 1995.
This collection covers:
(1) Type of Information Collection: NEW COLLECTION: Quantitative
and qualitative data necessary to evaluate cooperative agreement
proposals and subsequent requests for reimbursement.
(2) The title of the information collection: ``Telecommunications
Carrier Reimbursement Cost Estimate'' and ``Telecommunications Carrier
Reimbursement Request for Payment.''
(3) The agency form number, if any, and the applicable component of
the Department sponsoring the collections: No form number; sponsored by
the FBI, United States Department of Justice.
(4) Who will be asked or required to respond, as well as a brief
abstract; BUSINESS OR OTHER FOR PROFIT: Telecommunications carriers
will respond. This data collection will be necessary to evaluate
cooperative agreement proposals and subsequent requests for
reimbursement under CALEA. This information will be used to determine
whether agreement prices are fair and reasonable and to make
recommendations to agreement officers for approval or disapproval of
the carrier's request.
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to respond: The FBI
estimates that approximately three thousand (3,000) telecommunications
carriers, with approximately twenty-three thousand (23,000) unique
switches, that, over a five (5) year period, may be affected by these
rules. The time required to read and prepare information for one switch
is estimated at four (4) hours per response.
By publication of this notice, written comments and suggestions
from the public and affected agencies concerning the proposed
collection of information was requested. Your comments should address
one or more of the following four points:
(1) Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies estimate of the burden of
the proposed collection of information, including the validity of
methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of collection of information on those who
are to respond, including through the use of appropriate automated,
electronic, mechanical or other technological collection techniques or
other forms of information technology (i.g., permitting electronic
submission of responses).
Comments or suggestions regarding the items contained in this
information collections request should be directed to Mr. Porter F.
Dunn, Telecommunications Contracts and Audit Unit, Federal Bureau of
Investigation, P.O. Box 221286, Chantilly, VA 22022-1286, telephone
number (703) 814-4902.
List of Subjects in 28 CFR Part 100
Accounting, Law enforcement--wiretapping and electronic
surveillance, Reporting and recordkeeping requirements,
Telecommunications.
Dated: May 6, 1996.
Louis Freeh,
Director, Federal Bureau of Investigation, Department of Justice.
For the reasons set out in the preamble, 28 CFR part 100 is
proposed to be added as follows:
PART 100--COST RECOVERY REGULATIONS, COMMUNICATIONS ASSISTANCE FOR
LAW ENFORCEMENT ACT OF 1994
Sec.
100.9 General.
100.10 Definitions.
100.11 Allowable costs.
100.12 Reasonable costs.
100.13 Directly assignable costs.
100.14 Directly allocable costs.
100.15 Disallowed costs.
100.16 Cost estimate submission.
100.17 Request for payment.
100.18 Audit.
100.19 Reduction for defective cost data.
100.20 Accounting for unallowable costs.
100.21 Confidentiality of trade secrets/proprietary information.
Authority: 47 U.S.C. 1001-1010; 28 CFR 0.85(o).
Sec. 100.9 General.
These Cost Recovery Regulations were developed to define allowable
costs and establish reimbursement procedures in accordance with section
109(e) of Communications Assistance for Law Enforcement Act (CALEA)
(Public Law 103-414, 47 U.S.C. 1001-1010). Reimbursement of costs is
subject to the availability of funds and agreement, prior to the
incurrence of costs, by the Attorney General or designee to reimburse
costs.
Sec. 100.10 Definitions.
(a) Allocable means chargeable to two or more costs objectives.
(b) Business unit means any segment of an organization for which
cost data are routinely accumulated by the carrier for tracking and
measurement purposes.
(c) Cost objective means a function, organizational subdivision,
contract, or other work unit for which cost data are desired and for
which provision is made to accumulate and measure the cost of
processes, products, jobs, capitalization projects, etc.
[[Page 21400]]
(d) Cost pool means groupings of incurred costs identified with two
or more cost objectives, but not identified specifically with any final
cost objective.
(e) Directly allocable costs means any costs that are directly
chargeable to two or more cost objectives.
(f) Directly assignable cost means any cost that can wholly be
attributed to a cost objective.
(g) Directly associated cost means any directly assignable cost or
directly allocable cost which is generated solely as a result of
incurring another cost, and which would not have been incurred had the
said cost not been incurred.
(h) Final cost objective means a cost objective that has allocated
to it, both assignable and allocable costs and, in the carrier's
accumulation system, is one of the final accumulation points.
(i) Installed or deployed means that, on a specific switching
system, equipment, facilities, or services are operable and available
for use by the carrier's customers.
(j) Plant nonspecific costs means costs related to property held
for future telecommunications use, along with the associated
provisioning expenses, network operations expenses, and depreciation
and amortization expenses. These costs shall also include the costs of
supervising and office support of these activities.
(k) Plant specific costs means costs related to specific kinds of
telecommunications plants. These costs shall include the costs of
inspecting, testing and reporting on the condition of
telecommunications plant to determine the need for repairs,
replacements, rearranges and changes; performing routine work to
prevent trouble except replacing items of plant other than retirement
units; rearranging and changing the location of plant not retired;
repairing material for reuse; restoring the condition of plant damaged
by storms, floods, fire, or other casualties (other than the cost of
replacing retirement units); inspecting after repairs have been made;
and receiving training to perform these kinds of work. Also included
are the costs of direct supervision (immediate or first-level) and
office support of this work.
(l) Trade secrets/proprietary information means information which
is in the possession of a carrier but not generally available to the
public, which that carrier desires to protect against unrestricted
disclosure or competitive use, and which is clearly identified as such
at the time of its disclosure to the government.
Sec. 100.11 Allowable costs.
(a) Costs that are eligible for reimbursement under section 109(e)
CALEA are:
(1) All reasonable plant specific costs directly associated with
the modifications performed by carriers in connection with equipment,
facilities, and services installed or deployed on or before January 1,
1995, to establish the capabilities necessary to comply with section
103 of CALEA, until the equipment, facility, or service is replaced or
significantly upgraded or otherwise undergoes major modifications;
(2) Additional reasonable plant specific costs directly associated
with making the assistance capability requirements found in section 103
of CALEA reasonably achievable with respect to equipment, facilities,
or services installed or deployed after January 1, 1995, in accordance
with the procedures established in CALEA section 109(b); and
(3) Reasonable plant specific costs directly associated with
modifications to any of a carrier's systems or services, as identified
in the Carrier Statement required by CALEA section 104(d), that do not
have the capacity to accommodate simultaneously the number of
interceptions, pen registers, and trap and trace devices set forth in
the Capacity Notice(s) published in accordance with CALEA section 104.
(b) Allowable plant specific costs shall include:
(1) The costs of installation, inspection, and testing of the
telecommunications plant, and inspection after modifications have been
made; and
(2) The costs of direct first-line supervision and office support
for this work for plant specific expenses.
(c) In the case of any modification that may be used for any
purpose other than lawfully authorized electronic surveillance by a
government law enforcement agency, this part permits recovery of only
the incremental cost of making the modification suitable for such law
enforcement purposes.
(d) Reasonable costs that are directly associated with the
modifications performed by a carrier as described in Sec. 100.11(a) are
recoverable. These allowable costs are limited to direct and directly
allocable costs incurred by the business units whose efforts are
expended on the implementation of CALEA requirements.
Sec. 100.12 Reasonable costs.
(a) A cost is reasonable if, in its nature and amount, it does not
exceed that which would be incurred by a prudent person in the conduct
of competitive business. Reasonableness of specific costs must be
examined with particular care in connection with the carrier or its
separate divisions that may not be subject to effective competitive
restraints.
(1) No presumption of reasonableness shall be attached to the
incurrence of costs by a carrier.
(2) The burden of proof shall be upon the carrier to justify that
such cost is reasonable under this part.
(b) Reasonableness depends upon considerations and circumstances,
including, but not limited to:
(1) Whether a cost is of the type generally recognized as ordinary
and necessary for the conduct of the carrier's business or the
performance of this obligation; or
(2) Whether it is a generally accepted sound business practice,
arm's-length bargaining or the result of Federal or State laws and/or
regulations.
(c) It is the carrier's responsibility to inform the Government of
any deviation from the carrier's established practices.
Sec. 100.13 Directly assignable costs.
(a) An allowable directly assignable cost is any plant specific
cost that can be definitively linked with the performance of bringing
equipment, facilities or services into compliance with CALEA as
described in Sec. 100.11(a).
(1) A direct cost which has been incurred for the same purpose in
like circumstances and which has been included in any allocable cost
pool to be assigned to that or any other final cost objective shall not
be assigned to the CALEA compliance effort (or any portion thereof).
(2) Costs identified specifically with the work performed are
direct costs to be charged directly to the CALEA compliance effort. All
costs specifically identified with other projects, business units, or
cost objectives of the carrier as direct costs shall not be charged to
the CALEA compliance effort, directly or indirectly.
(3) The burden of proof shall be upon the carrier to justify that
such cost is a direct cost under this part.
(b) For reasons of practicality, any directly assignable cost of
minor dollar amount may be treated as a directly allocable cost if the
accounting treatment is consistently applied within the carrier's
accounting system and the application produces substantially the same
results as treating the cost as a directly assignable cost.
Sec. 100.14 Directly allocable costs.
(a) A cost is directly allocable to the CALEA compliance effort if:
[[Page 21401]]
(1) It is plant specific cost incurred specifically to meet the
requirements of CALEA sections 103 and 104; or
(2) It benefits both the CALEA compliance effort and other work,
and can be distributed to them in reasonable proportion to the benefits
received.
(b) The burden of proof shall be upon the carrier to justify that
such cost is an allocable cost under this part.
(c) An allocable cost shall not be assigned to the CALEA compliance
effort if other costs incurred for the same purpose in like
circumstances have been included as a direct cost of that, or any
other, cost objective.
(d) The accumulation of allocable costs shall be as follows:
(1) Allocable costs shall be accumulated by logical groupings with
due consideration of the reason for incurring such costs.
(i) Each grouping should be determined so as to permit distribution
of the grouping on the basis of the benefits accruing to the multiple
cost objectives.
(ii) Similarly, the particular case may require subdivision of
these groupings (e.g., building occupancy costs might be separable from
those of personnel administration within the engineering group).
(2) Such allocation necessitates selecting a distribution base
common to all cost objectives to which the grouping is to be allocated.
The base should be selected so as to permit allocation of the grouging
on the basis of the benefits accruing to the multiple objectives.
(3) When substantially the same results can be achieved through
less precise methods, the number and composition of cost groupings
should be governed by practical considerations and should not unduly
complicate the allocation.
(4) Once a methodology for determining an appropriate base for
distributing allocable costs has been accepted by the FBI, it shall not
be modified without written approval of the FBI. All items properly
includable in an allocable cost base should bear a pro rata share of
allocable costs irrespective of their acceptance as reimbursable under
this part.
(5) The carrier's method of allocating allocable costs shall be in
accordance with the accounting principles used by the carrier in the
preparation of their externally audited financial statements and
consistently applied, to the extent that the expenses are allowable
under these regulations. The method may require further examination
when:
(i) Substantial differences occur between the cost patterns of work
under CALERA compliance effort and the carrier's other work;
(ii) Significant changes occur in the nature of the business, the
extent of subcontracting, fixed-asset improvement programs,
inventories, the volume of sales and production, manufacturing
processes, the carrier's products, or other relevant circumstances; or
(iii) Allocable cost groupings developed for a carrier's primary
location are applied to off-site locations. Separate cost groupings for
costs allocable to off-site location may be necessary to permit
equitable distribution of costs on the basis of the benefits accruing
to the multiple cost objectives.
(6) The base period for allocating allocable costs is the cost
accounting period during which such costs are incurred and accumulated
for distribution to work performed in that period. The base period for
allocating allocable costs will normally be the carrier's fiscal year.
A shorter period may be appropriated when performance involves only a
minor portion of the fiscal year, or when it is general practice to use
a shorter period. When the compliance effort is performed over an
extended period, as many base periods shall be used as are required to
accurately represent the period of performance.
Sec. 100.15 Disallowed costs.
(a) General and Administrative (G&A) costs are disallowed. G&A
costs include, but are not limited to, any management, financial, and
other expenditures which are incurred by or allocated to a business
unit and which are for the general management and administration of the
business unit as a whole. These include, but are not limited to:
(1) Accounting and Finance, External Relations, Human Resources,
Information Management, Legal, Procurement; and
(2) Other general administrative activities such as library
services, food services, archives, and general security investigation
services.
(b) Customer Service costs are disallowed. These costs include, but
are not limited to, any Marketing, Sales, Product Management, and
Advertising expenses.
(c) Plant nonspecific costs are disallowed. These include, but are
not limited to, expenses related to property held for future
telecommunications use, provisioning expenses, network operations
expenses, and depreciation and amortization expenses. Any plant
nonspecific supervision and office support costs are also disallowed.
(d) Cost that have already been recovered from any governmental or
nongovernmental entity are disallowed.
(e) Costs that cannot be either directly assigned or directly
allocated are disallowed.
(f) Additional costs that are incurred due to the carrier's failure
to complete the CALEA compliance effort in the agreed upon time frame
are disallowed.
(g) Costs associated with modifications of any equipment, facility
or service installed or deployed after January 1, 1995 which are deemed
reasonably achievable by the Federal Communications Commission under
section 109(b) of CALEA are disallowed.
Sec. 100.16 Cost estimate submission.
(a) The carrier shall provide sufficient cost data at the time of
proposal submission to allow adequate analysis and evaluation of the
estimated costs. The FBI reserves the right to request additional cost
data from carriers in order to ensure compliance with this part.
(b) The requirement for submission of cost data is met if, as
determined by the FBI, all cost data reasonably available to the
carrier are either submitted or identified in writing by the time of
agreement.
(c) If cost data and information to explain the estimating process
are required by the FBI and the carrier refuses to provide necessary
data, or the FBI determines that the data provided are so deficient as
to preclude adequate analysis and evaluation, the FBI will attempt to
secure the data and/or elicit corrective action. If the carrier
persists in refusing to provide the needed data or to take corrective
action, the FBI will refer the action to higher authority, including
details of the attempts made to resolve the matter, and a statement of
noncompliance with CALEA will be issued.
(d) Instructions for submission of the cost data for the estimate
are as follows:
(1) The carrier shall submit to the FBI estimated and/or incurred
costs by line item with supporting information, adequately cross-
referenced, suitable for detailed analysis.
(2) A cost element breakdown as described in Sec. 100.16(h) shall
be attached for each proposed line item and must reflect any specific
requirements established by the FBI.
(3) Supporting breakdowns shall be furnished for each cost element,
consistent with the carrier's cost accounting system.
(4) When more than one line item is proposed, summary total amounts
covering all line items shall be furnished for each cost element.
[[Page 21402]]
(5) Depending on the carrier's accounting system, the carrier shall
provide breakdownS for the following categories of cost elements, as
applicable:
(i) Materials. Provide a consolidated cost summary of individual
material quantities included in the various tasks, orders, or agreement
line items being proposed and the basis upon which they were developed
(vendor quotes, invoice prices, etc.). Include raw materials, parts,
software, components, and assemblies. For all items proposed, identify
the item, source, quantity, and cost.
(ii) Direct labor. Provide a time-phased (e.g., monthly, quarterly)
breakdown of labor hours, rates, and costs by appropriate category, and
furnish the methodologies used in developing estimates.
(iii) Allocable direct costs. Indicate how allocable costs are
computed and applied, including cost breakdowns, and showing trends and
budgetary data, to provide a basis for evaluating the reasonableness of
proposed rates. Indicate the rates used and provide an appropriate
explanation.
(iv) Subcontracting costs. For any subcontractor costs submitted
for reimbursement, the carrier is responsible for ensuring that
documentation requirements set forth herein are passed on to any and
all subcontractors utilized in the carrier's efforts to meet CALEA
requirements.
(v) Other costs. List all other costs not otherwise included in the
categories described above (e.g., special tooling, travel, computer and
consultant services) and provide bases for costs.
(e) As part of the specific information required, the carrier shall
submit with its cost estimate and clearly identify as such, costs that
are verifiable and factual. In addition, the carrier shall submit
information reasonably required to explain its estimating process,
including:
(1) The judgmental factors applied and the mathematical or other
methods used in the estimate, including those used in projecting from
known data; and
(2) The nature and amount of any contingencies included in the
proposed estimate.
(f) There is a clear distinction between submitting cost data and
merely making available books, records, and other documents without
identification. The requirement for submission of cost data is met when
all accurate cost data reasonably available to the carrier have been
submitted, either actually or by specific identification, to the FBI.
As later information comes into the carrier's possession, it must be
promptly submitted to the FBI. The requirement for submission of cost
data continues up to the time of final reimbursement.
(g) In submitting its estimate, the carrier must include an index,
appropriately referenced, of all the cost data and information
accompanying or identified in the estimated. In addition, any future
additions and/or revisions, up to the date of agreement on the costs,
must be annotated in a supplemental index.
(h) Headings for submission are as follows:
(1) Total Project Cost: Summary.
(i) Cost Elements (Enter appropriate cost elements.).
(ii) Proposed Cost Estimate--Total Cost (enter those necessary and
reasonable costs that in the carrier's judgment will properly be
incurred in efficient completion of CALEA requirements. When any of the
costs in this have already been incurred (e.g., under a letter
contract), describe them on an attached support schedule.).
(iii) Proposed Cost Estimate--Unit Cost (Enter the unit costs for
each cost element.).
(iv) Supporting Material (Identify the attachment in which the
information supporting the specific cost element may be found. Attach
separate pages as necessary.).
(2) Total Project Costs: Detail (at Switch Level, Research &
Development, or Project level, as appropriate).
(i) Cost Elements (Enter appropriate cost elements.).
(ii) Proposed Cost Estimate--Total Cost (enter those necessary and
reasonable costs that in the carrier's judgment will properly be
incurred in efficient completion of CALEA requirements. When any of the
costs in this have already been incurred (e.g., under a letter
contract), describe them on an attached supporting schedule.).
(iii) Proposed Cost Estimate--Unit Cost (Enter the unit costs for
each element.).
(iv) Supporting Material (Identify the attachment in which the
information supporting the specific cost element may be found. Attach
separate pages as necessary.).
Sec. 100.17 Request for payment.
(a) The carrier shall provide sufficient supporting documentation
at the time of submission of request for payment to allow adequate
analysis and evaluation of the incurred costs. The FBI reserves the
right to request additional cost data from carriers in order to ensure
compliance with this part.
(b) Instructions for submission of the supporting documentation for
the request for payment are as follows:
(1) The carrier shall submit to the FBI incurred costs by line item
with supporting information, adequately cross-referenced, suitable for
detailed analysis.
(2) A cost element breakdown Sec. 100.17(f) shall be attached for
each agreed upon line item and must reflect any specific requirements
established by the FBI.
(3) Supporting breakdowns shall be furnished for each cost element,
consistent with the carrier's cost accounting system.
(c) When more than one line item has been agreed upon, summary
total amounts covering all line items shall be furnished for each cost
element. If agreement has been reached with FBI representatives on use
of forward costing rates/factors, identify the agreement, include a
copy, and describe its nature. Depending on the carrier's accounting
system, breakdowns shall be provided to the FBI for the following
categories of cost elements, as applicable:
(1) Materials. Provide a consolidated cost summary of individual
material quantities included in the various tasks, orders, or agreement
line items and the basis upon which they were determined (vendor
invoices, time sheets, payroll records, etc.). Include raw materials,
parts, software, components, and assemblies. For all reimbursable
items, identify the item, source, quantity, and cost.
(2) Direct labor. Provide time sheets and labor rate justification
for all direct labor charged to this agreement. Include a breakdown of
labor hours, rates, and cost by appropriate category, and furnish the
methodologies used in identifying these costs.
(3) Allocable direct costs. Indicate how allocable costs are
computed and applied, including cost breakdowns, comparing estimates to
actual data as a basis for evaluating the reasonableness of actual
costs.
(4) Subcontracting costs. For any subcontractor costs submitted for
reimbursement, along with a copy of the invoice, the carrier must
provide documentation that costs incurred are just and reasonable.
(5) Other costs. List all other costs not otherwise included in the
categories described above (e.g., special tooling, travel, computer and
consultant services) and provide documentation of these costs.
(d) There is a clear distinction between submitting cost data and
merely making available books, records, and other documents without
identification.
[[Page 21403]]
(1) The requirement for submission of cost data is met when all
accurate cost data reasonably available to the carrier have been
submitted, either actually or by specific identification, to the FBI.
(2) As later information comes into the carrier's possession, it
must be promptly submitted to the FBI.
(3) The requirement for submission of cost data continues up to the
time of final reimbursement.
(e) In submitting its invoice, the carrier must include an index,
appropriately referenced, of all the cost data and information
accompanying or identified in the estimate. With any future additions
and/or revisions to an estimate, the carrier must provide a
supplemental index, up to the date of the agreement on the costs.
(f) Headings for submission are as follows:
(1) Total Project Cost: Summary.
(i) Cost Elements (Enter appropriate cost elements.).
(ii) Actual Costs Incurred--Total Cost (Enter those necessary and
reasonable costs that were incurred in the efficient completion of
CALEA requirements.).
(iii) Actual Costs Incurred--Unit Cost (Enter the unit costs for
each cost element.).
(iv) Supporting Material (Identify the attachment in which the
information supporting the specific cost element may be found. Attach
separate pages as necessary.).
(2) Total Project Costs: Detail (at Switch Level, Research &
Development, or Project level, as appropriate).
(i) Cost Elements (Enter appropriate cost elements.).
(ii) Actual Costs Incurred--Total Cost (Enter those necessary and
reasonable costs that were incurred in the efficient completion of
CALEA requirements.).
(iii) Actual Costs Incurred--Unit Cost (Enter the unit costs for
each cost element.).
(iv) Supporting Material (Identify the attachment in which the
information supporting the specific cost element may be found. Attach
separate pages as necessary.).
Sec. 100.18 Audit.
(a) General. In order to evaluate the accuracy, completeness, and
currency of the cost data, the FBI or other representatives of the
Government shall have the right to examine and audit all of the
carrier's supporting materials.
(1) These materials include, but are not limited to books, records,
documents, and other data, regardless of form (e.g., machine readable
media such as disk, tape) or type (e.g., data bases, applications
software, data base management software, utilities), including
computations and projections related to proposing, negotiating,
costing, or performing CALEA compliance efforts or modifications.
(2) The right of examination shall extend to all documents
necessary to permit adequate evaluation of the cost data submitted,
along with the computations and projections used.
(b) Audits of request for payment. The carrier shall maintain and
the FBI or representatives of the Government shall have the right to
examine and audit supporting materials.
(1) These materials include, but are not limited to, books,
records, documents, and other evidence and accounting procedures and
practices, regardless of form (e.g., machine readable media such as
disk, tape) or type (e.g., data bases, applications software, data
based management software, utilities), sufficient to reflect properly
all costs claimed to have been incurred, or anticipated to be incurred,
in performing the CALEA compliance effort.
(2) This right of examination shall include inspection at all
reasonable times of the carrier's plants, or parts of them, engaged in
performing the effort.
(c) Reports. If the carrier is required to furnish cost, funding,
or performance reports, the FBI or representatives of the Government
shall have the right to examine and audit books, records, other
documents, and supporting materials, for the purpose of evaluating the
effectiveness of the carrier's policies and procedures to produce data
compatible with the objectives of these reports and the data reported.
(d) Availability. The carrier shall make available at its office at
all reasonable times the costs and support material described herein,
for examination, audit, or reproduction, until five (5) years after
final reimbursement payment. In addition,
(1) If the CALEA compliance effort is completely or partially
terminated, the records relating to the work terminated shall be made
available for five (5) years after any resulting final termination
settlement; and
(2) Records relating to appeals, litigation or the settlement of
claims arising under or relating to the CALEA compliance effort shall
be made available until such appeals, litigation, or claims are
disposed of.
(e) Subcontractors. The carrier shall ensure that all terms and
conditions herein are incorporated in any agreement with a
subcontractor that may be utilized by the carrier to perform any or all
portions of this agreement.
Sec. 100.19 Reduction for defective cost data.
(a) The cost shall be reduced accordingly and the agreement shall
be modified to reflect the reduction if any cost estimate negotiated in
connection with the CALEA compliance effort, or any cost reimbursable
under the effort, or any data modification is increased by any
significant amount because:
(1) The carrier or a subcontractor furnished cost data that were
not complete, accurate, and current;
(2) A subcontractor or prospective subcontractor furnished the
carrier cost data that were not complete, accurate, and current; or
(3) Any of these parties furnished data of any description that
were not accurate.
(b) Any reduction in the negotiated cost under Sec. 100.19(a) due
to defective data from a prospective subcontractor that was not
subsequently awarded the subcontract shall be limited to the amount by
which either the actual subcontract or the actual cost to the carrier,
if there was no subcontract, was less than the prospective subcontract
cost estimate submitted by the carrier, provided that the actual
subcontract cost was not itself affected by defective cost data.
(c) If the FBI determines under Sec. 100.19(a) that a cost
reduction should be made, the carrier shall not raise the following
matters as a defense:
(1) The carrier or subcontractor was a sole source supplier or
otherwise was in a superior bargaining position and thus the costs of
the agreement would not have been modified even if accurate, complete,
and current cost data had been submitted;
(2) The FBI should have known that the cost data at issue were
defective even though the carrier or subcontractor took no affirmative
action to bring the character of the data to the attention of the FBI;
(3) The carrier or subcontractor did not submit accurate cost data.
Except as prohibited, an offset in an amount determined appropriate by
the FBI based upon the facts shall be allowed against the cost
reimbursement of an agreement amount reduction if the carrier certifies
to the FBI that, to the best of the carrier's knowledge and belief, the
carrier is entitled to the offset in the amount requested and the
carrier proves that the cost data were available before the date of
agreement on the cost of the agreement (or cost of the modification)
and that the data were not submitted before such date. An offset shall
not be allowed if the understated data were known by the carrier to be
understated when the agreement was signed; or the Government proves
that
[[Page 21404]]
the facts demonstrate that the agreement amount would not have
increased even if the available data had been submitted before the date
of agreement on cost; or
(4) In the event of an overpayment, the carrier shall be liable to
and shall pay the United States at that time such overpayment as was
made, with simple interest on the amount of such overpayment to be
computed from the date(s) of overpayment to the carrier to the date the
Government is repaid by the carrier at the applicable underpayment rate
effective for each quarter prescribed by the Secretary of the Treasury
under 26 U.S.C. 6621(a)(2).
Sec. 100.20 Accounting for unallowable costs.
To ensure that the Government does not reimburse carriers for
unallowable costs, the following provisions are included:
(a) Costs that are expressly unallowable or mutually agreed to be
unallowable, including mutually agreed to be unallowable directly
associated costs, shall be identified and excluded from any billing,
claim, or proposal applicable to reimbursement under CALEA. When an
unallowable cost is incurred, its directly associated costs are also
unallowable.
(b) The detail and depth of records required as backup support for
cost estimates, billings, or claims shall be those which are adequate
to establish and maintain visibility of identified unallowable costs,
including their directly associated costs. Unallowable costs involved
in determining rates used for standard costs, or for allocable cost
proposals or billing, need be identified only at the time rates are
proposed, established, revised, or adjusted. These requirements may be
satisfied by any form of cost identification which is adequate for
purposes of cost determination and verification.
Sec. 100.21 Confidentiality of trade secrets/proprietary information.
With respect to any information provided to the FBI under this part
that is identified as company proprietary information, it shall be
treated as privileged and confidential. It shall not be disclosed
outside the government for any reason inclusive of Freedom of
Information requests, without the prior written approval of the
company. Information provided will be used exclusively for the
implementation of CALEA. This restriction does not limit the
government's right to use the information provided if obtained from any
other source without limitation.
[FR Doc. 96-11724 Filed 5-9-96; 8:45 am]
BILLING CODE 4410-02-M
Complete official Federal Register PDF
FR Doc. 96-11649 Office of the Assistant Secretary for HousingFederal Housing Commissioner; Home Equity Conversion Mortgage Insurance Demonstration: Additional Streamlining
[Federal Register Volume 61, Number 92 (Friday, May 10, 1996)]
[Proposed Rules]
[Pages 21918-21923]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11649]
[[Page 21917]]
_______________________________________________________________________
Part VIII
Department of Housing and Urban Development
_______________________________________________________________________
24 CFR Part 206
Home Equity Conversion Mortgage Insurance Demonstration: Additional
Streamlining; Proposed Rule
Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Proposed
Rules
[[Page 21918]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Part 206
[Docket No. FR-2958-P-04]
RIN 2502-AF32
Office of the Assistant Secretary for Housing--Federal Housing
Commissioner; Home Equity Conversion Mortgage Insurance Demonstration:
Additional Streamlining
AGENCY: Office of the Assistant Secretary for Housing-Federal Housing
Commissioner, HUD.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This proposed rule would make changes to the Home Equity
Conversion Mortgage (HECM) Insurance Demonstration, including technical
and clarifying changes, to improve and streamline the program as a
supplement to the changes made through the interim rule, published on
August 16, 1995, and made final on December 21, 1995.
DATES: Comment Due Date: July 9, 1996.
ADDRESSES: Interested persons are invited to submit comments regarding
this proposed rule to the Rules Docket Clerk, Office of General
Counsel, Room 10276, Department of Housing and Urban Development, 451
Seventh Street, SW, Washington, DC 20410-0500.
Communications should refer to the above docket number and title.
Facsimile (FAX) comments are not acceptable. A copy of each
communication submitted will be available for public inspection and
copying between 7:30 a.m. and 5:30 p.m. weekdays at the above address.
FOR FURTHER INFORMATION CONTACT: Richard K. Manuel, Acting Director,
Single Family Development Division, Office of Insured Single Family
Housing, Room number 9272, Department of Housing and Urban Development,
451 Seventh Street, SW, Washington, DC 20410, telephone (202) 708-2700;
TTY (202) 708-4594. (These are not toll-free telephone numbers.)
SUPPLEMENTARY INFORMATION: The information collection requirements for
the Home Equity Conversion Mortgage Insurance Demonstration have been
approved by the Office of Management and Budget under the Paperwork
Reduction Act of 1995, and have been assigned OMB Control Number 2528-
0133. An agency may not conduct or sponsor, and a person is not
required to respond to, a collection of information unless the
collection displays a valid control number. This rule does not contain
additional information collection requirements.
Background
The Home Equity Conversion Mortgage (HECM) Insurance Demonstration
was authorized by section 417 of the Housing and Community Development
Act of 1987 (42 U.S.C. 5301), which amended section 255 of the National
Housing Act (12 U.S.C. 1715z-20) to permit elderly homeowners to borrow
against the equity in their homes. The interim rule published on August
16, 1995, at 60 FR 42754, revised 24 CFR part 206 to include
improvements to the program that did not require prior public comment
before implementation. The interim rule was made final on December 21,
1995, at 60 FR 66476. This proposed rule reflects additional ideas for
improving the program regulations for which the Department desires
public comment prior to implementation. An explanation of the proposed
changes follows.
Proposed Changes to HECM Regulations
Sections 206.3 and 206.209
A definition of ``mortgage balance'' is proposed to be included
that would make HECMs ``closed end'' credit for purposes of the
regulations implementing the Truth in Lending Act (TILA) (15 U.S.C.
1601 et seq.). The rule would continue to permit prepayment by
mortgagors as mandated by statute, but prepayments (including insurance
or condemnation proceeds that have been applied to the debt) would be
excluded from the definition of mortgage balance for purposes of
calculating future loan advances, thereby prohibiting mortgagors from
re-borrowing funds previously prepaid. A recent amendment to
Sec. 206.21(c) deleted specific reference to the ``open end'' credit
TILA regulations at 12 CFR part 226 in anticipation of this change.
Currently, HECM funds may be prepaid and borrowed again. This fact
makes the mortgage ``open end'' credit or ``revolving'' credit under
the TILA. The TILA requires initial and periodic disclosures, in
addition to those disclosures required by the HECM statute. The TILA
disclosures have been difficult for mortgagees to produce for this type
of mortgage and have increased the paperwork at closing. Mortgage
lenders ordinarily only have experience with ``closed end'' credit
requirements. Additionally, at this point in the demonstration, few, if
any, mortgagors have utilized the option to re-borrow. HUD does not
regard the option as an important aspect of the demonstration.
The definitions of ``principal limit'' and ``expected average
mortgage interest rate'' in Sec. 206.3 also would be amended to require
that the principal limit grow at the mortgage interest rate plus the
monthly mortgage insurance premium (MIP) rate instead of the expected
average mortgage interest rate (expected rate) plus the monthly MIP
rate. The expected rate would be used only when needed to project the
principal limit for calculation of future payments for adjustable rate
mortgages because the actual mortgage interest rate cannot be
calculated in advance. HUD is particularly interested in receiving
public comment on this proposal.
Under the current regulation, the principal limit increases for all
purposes each month by one-twelfth of the expected rate plus the
monthly MIP rate. For fixed rate mortgages, the expected rate is the
same as the actual fixed interest rate that appears in the note. For
adjustable rate mortgages, the expected rate is fixed at closing as the
sum of the mortgagee's margin plus the weekly average yield for U.S.
Treasury Securities adjusted to a constant maturity of 10 years. In
contrast, the mortgage balance grows at the actual current interest
rate that is applied under the note and adjusted periodically. Because
two different interest rates are used to determine the principal limit
and the mortgage balance on adjustable rate mortgages, these sums grow
at different rates and the difference between them can become
unpredictable.
When the mortgage note rate is higher than the expected rate, the
mortgage balance increases at a faster pace than the principal limit.
In this case the maximum loan advance amount available under a HECM
line of credit is eroded by interest charged to the account balance,
leaving the mortgagor with less to borrow than he or she might have
anticipated. Monthly payments under a term or tenure payment option,
however, are guaranteed under the loan agreement regardless of this
interest rate risk.
When the note rate is lower than the expected rate, the mortgage
balance grows at a slower pace than the principal limit. This
discrepancy between the note rate and the expected rate creates
additional potentially-available credit. This situation has caused
servicing problems because mortgagors that have borrowed the full
principal limit under a line of credit may at a future date have
additional credit created from the difference in the interest rates.
[[Page 21919]]
HUD has considered several solutions to this interest rate risk
problem. One solution would be to terminate a mortgagor's right to
continue borrowing once his or her mortgage balance reached the
principal limit, even if at a later time the interest rate differential
caused the principal limit to exceed the mortgage balance. The
disadvantage of this solution is that it does not address the problem
of an increasing note rate resulting in an erosion of the principal
limit. An alternative solution would be to cap the note rate at the
expected rate. However, this solution does not address the problem
presented when the note rate is below the expected rate resulting in
excess credit, and is of questionable legality due to the statutory
provision providing for a note rate negotiated between the mortgagor
and mortgagee rather than one regulated by HUD. Another solution would
be to require that all line of credit payment plans must be established
together with a term or tenure monthly payment plan. Each payment plan
would carry a separate principal limit. All fees and charges would be
charged to the monthly payment plan balance. In this way, as long as no
line of credit draws were made, the line of credit would not be
effected by the interest rate fluctuations because the line of credit
principal limit would be separate from the monthly payments principal
limit. This solution only forestalls the problem. Once a draw is made
against the line of credit the same interest rate risk problem can
occur as under the current rule.
HUD does not propose these solutions because each one requires
additional regulatory restraint on the terms and conditions of the
HECM. Instead, HUD proposes to make a program change by altering the
definitions of ``expected average mortgage interest rate'' and
``principal limit.'' The expected rate would only be used to determine
future monthly payments. (Section 206.25(b)(1)(vi) provides for
continued use of the expected rate to calculate future estimated
interest that will accrue on scheduled monthly payments.) The monthly
calculation of growth to the principal limit would not involve the
expected rate but would instead be determined by using the mortgage
note rate plus the monthly MIP rate. In this way, both the principal
limit and the mortgage balance would grow at the same rate. This
solution would give mortgagors and mortgagees more certainty in knowing
what funds would be available to be drawn than the current system.
In low interest rate markets, mortgagors would not have the benefit
of an increase in available principal limit. In high interest rate
markets, mortgagors would not experience the erosion of lines of
credit. These variations in the available principal limit would be
replaced by a system with greater predictability. In the long run, the
principal limit is expected to be approximately the same as the current
rule because the expected rate under the current rule encompasses the
market's best estimate of future note rates. This rule change would be
effective only for mortgages which the mortgagee closed on or after the
effective date of the final rule.
Section 206.8.
A new Sec. 206.8 would be added to provide a first lien priority to
all debt secured by the HECM, including all direct payments to the
mortgagor and all other loan advances under the HECM for purposes such
as interest, taxes and special assessments, premiums for hazard or
mortgage insurance, servicing charges and costs of collection. Any
contrary State laws would be preempted. This preemption is proposed to
clarify the current uncertainty regarding the lien priority to be
accorded HECM loan advances in certain circumstances and to ensure that
all HECM debt will have a first lien priority. That priority is a basic
assumption behind the computer model used to determine the amount of
payments to the mortgagor. State law would still be applicable for
determining the authority of a mortgagee to make a HECM loan as
provided in Sec. 206.9(a) of the current HECM regulation.
In the absence of an applicable Federal statute or regulation, lien
priority would be determined under United States v. Kimbell Foods,
Inc., 440 U.S. 715 (1979) if the HECM had been assigned to HUD. In most
circumstances courts applying Kimbell Foods have determined that the
lien priority law of the State should be adopted as the Federal rule of
decision. State law would also apply while the HECM was still held by
the mortgagee as an insured mortgage.
State law is sometimes unclear regarding the appropriate priority
to be given to loan advances made many years after the original
mortgage was recorded when other liens have been filed in the interim.
To the extent State laws are clear, they differ, and some would have
the effect of subordinating the priority of HECM loan advances made
after certain events such as the filing of another lien that has been
brought to the attention of the HECM mortgagee. HUD or the mortgagee
could guard against loss of priority to some extent by stopping further
loan advances directly to the mortgagor (as permitted by the HECM loan
documents when needed to protect lien priority) but this will not
protect the lien priority of the mandatory loan advances that will
continue for interest, mortgage insurance premiums and servicing
charges. HUD or the mortgagee may find it necessary to accelerate the
loan and foreclose to prevent the continued growth of debt without a
first lien priority. Even without a foreclosure, the homeowner may have
to move if loan advances are stopped, because of inability to pay basic
homeowner expenses such as real estate taxes without further advances.
This result would conflict with the program goal of non-displacement of
an elderly homeowner that desires to continue living in his or her
home.
The proposed rule would serve as a Federal law that courts would
use to determine the lien priority of HECM loan advances. Kimbell Foods
would be inapplicable for a HECM assigned to HUD because that decision
guides courts only in the absence of a Federal law, and the regulation
would otherwise preempt state law that would be applied to an insured
HECM still held by a mortgagee. This use of a regulation to avoid any
application of Kimbell Foods is in accord with Chicago Title Ins. Co.
v. Sherred Village Associates, 708 F. 2d 804 (1st Cir. 1983), and
preemption by regulation of state law that would otherwise apply to
privately-held mortgages has been approved by the Supreme Court in
cases such as Fidelity Federal Savings and Loan Association v. De La
Cuesta, 458 U.S. 141 (1982) and United States v. Shimer, 367 U.S. 374
(1961).
The proposed priority lien regulation would assure that HECM loan
advances made in accordance with the loan agreement would not be
interrupted due to the application of State lien priority laws.
Reasonable arguments can be made that, even without this rule, Kimbell
Foods would not compel application of State lien priority laws to a
HECM held by HUD due to distinctive features of the HECM program, and
that State laws would not apply to a HECM held by a private mortgagee
if conflict with the program goal of non-displacement, as described
above, would occur. This proposed rule does not reject those arguments.
It recognizes the uncertainty of current law and proposes to replace
that uncertainty with a clear rule on which HUD, mortgagees and other
potential lienors can rely. Private creditors intending to rely on the
equity of the mortgagor in the home will be on clear notice that the
[[Page 21920]]
entire HECM debt will be superior to any other private lien. The
proposed priority lien regulation would have one exception to permit a
higher priority for state or local liens for taxes or special
assessments, to the extent provided by State or local law.
Section 206.21
Paragraph (b) of Sec. 206.21 would be amended to permit a mortgage
that provides for monthly adjustments to the interest rate to be
converted to one that provides for annual adjustments if the mortgage
is assigned to HUD by the mortgagee. This would enable HUD to reduce
greatly the servicing burden associated with ARMs that are assigned to
HUD. A similar change is proposed for Sec. 206.121(c) regarding the
second mortgage held by HUD. If the mortgagee had drafted the second
mortgage to provide for monthly adjustments HUD could convert it to
annual adjustments.
Section 206.25
Section 206.25(d) would be revised to permit the principal limit
amount set aside for a line of credit to increase at the same rate as
the full principal limit whether or not combined with a term or tenure
option with monthly payments. HUD has been informed that the current
regulation has been interpreted to permit this by some participants in
the HECM program, including the Federal National Mortgage Corporation
(FNMA). Although not necessarily in conformity with HUD's original
intentions behind Sec. 206.25(d), this approach to calculating the
principal limit for a line of credit has the advantage of simplicity as
compared to HUD's original intention, and does not result in increased
risk to the borrower or HUD. HUD is proposing a formal change in
regulations to permit FNMA and others to continue with a practice that
is compatible with the general design of the HECM program. Most of the
actual difference in results between the various approaches to
Sec. 206.25(d) would be eliminated as a result of the separate proposal
to calculate the principal limit using the actual mortgage interest
rate instead of the expected average mortgage interest rate; the
proposed change to Sec. 206.25(d) is a technical revision to eliminate
remaining perceived adverse effects of the current Sec. 206.25(d). A
conforming change would be made to Sec. 206.19(c) to avoid conflicting
descriptions of how line of credit payments are calculated.
Section 206.26
The specific dollar amount of $20 that mortgagees may charge when
payments are recalculated would be removed from Sec. 206.26(d), and the
Secretary would be given discretion to set a fee. The Secretary would
continue to set a maximum fee at $20, but would establish the amount in
Handbook 4235.1 subject to future reconsideration.
Section 206.27
Changes to Secs. 206.27(d), 206.117, and 206.121(c) are proposed to
be made to give the Secretary the option to eliminate the HUD-held
second mortgage. The current regulations require originating mortgagors
to execute a second HECM security instrument and note (second mortgage)
held by the Secretary. The second mortgage comes into effect only if a
mortgagee defaults in making payments and is unable or unwilling to
assign the mortgage to HUD. It assures that any funds advanced by HUD
are secured by a mortgage. (In the case of assignments, the Secretary
continues making payments to the mortgagor under the first mortgage and
the second mortgage is not utilized.) HUD now concludes that it is
inappropriate to bind itself by regulation to this particular approach
to protection of the Secretary's financial interests.
In practice, the second mortgage has proven to be cumbersome and
costly to mortgagors. First, in virtually all cases mortgagors are
required to pay recording fees per page of documents recorded. Two
mortgages double the recording fees. Second, mortgagees and mortgagors
have mistakenly believed that the second mortgage represents additional
mortgage debt and have been confused as to the purpose of the second
mortgage. Third, when the mortgage has been paid off, release of the
second mortgage has been time-consuming. The provisions in the legal
documents regarding the relationship between the debts secured by the
first and second mortgages if the second mortgage is used are complex,
untested and without close precedent and therefore could invite
litigation.
HUD's ultimate objective is to eliminate or reduce reliance on the
second mortgage as the means of protecting the mortgagor and HUD
against mortgagee defaults. The proposed changes would permit the
Secretary to do without the second mortgage when deemed prudent. HUD
does not expect to change its current practices, however, until it is
reasonably certain that it has a legal means of enforcing an assignment
of the first mortgage free and clear of any interests of other parties.
At such time as legal doubts are resolved, HUD anticipates that the
second mortgage requirement could be terminated without further
regulatory changes.1
---------------------------------------------------------------------------
\1\ Complete abandonment of a second mortgage requirement might
not be prudent in the absence of a statutory change--which has not
been proposed to date by HUD--that would guarantee HUD the right to
assume first mortgages upon mortgagee default, similar to language
found in section 306(g)(1) of the National Housing Act (12 U.S.C.
1723)(g)(1)). Section 306(g)(1) provides that the Government
National Mortgage Association (GNMA) shall be subrogated fully to
the rights of a defaulted issuer when GNMA makes the payment of
principal and interest on securities guaranteed by GNMA. Section
306(g)(1) further provides that GNMA may provide by regulation or
contract with the issuer for the extinguishment, upon default by the
issuer, of any right, title or interest of the issuer in the assumed
mortgages (this provision also appears in GNMA regulations at 24 CFR
390.15(b)).
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Sections 206.27 and 206.35
Currently part 206 does not permit mortgagors to hold only a life
estate in the mortgaged property. At least one eligible mortgagor must
hold title in fee simple or through a long-term leasehold of a fee
simple interest. HUD is proposing amendment of sections 206.27(c)(1)
and 206.35 to permit mortgages to be insured and remain in force even
if no eligible mortgagor has any interest in the property greater than
a life estate. If a mortgagor holds only a life estate when the
mortgage is executed, all holders of any future interest in the
property (remainder or reversion) would also be required to execute the
mortgage to ensure that the mortgage was secured by a fee simple. A
holder of a future interest would not execute the note or loan
agreement and would not have the rights to loan proceeds of other
mortgagors. The proposed change would also permit a mortgagor who held
fee simple title when the mortgage was executed to subsequently convey
his or her interests in the property as long as a life estate is
retained.
Because the mortgage will in all cases be secured by a fee simple
or long-term leasehold interest in the property, mortgagees and HUD
should not be subject to any greater financial risk if the proposed
change is adopted. The proposed change would recognize that an elderly
homeowner may wish to convey future interests in his or her home as an
estate planning measure while retaining a life interest to ensure a
continued right of occupancy for the remaining lifetime. There is no
conflict between this approach to estate planning and the basic
objective of the HECM program--to provide elderly homeowners the
financial means to continue residing in their homes for the remainder
of their lifetimes. HUD has already accommodated other approaches to
estate planning by
[[Page 21921]]
permitting mortgagors to convey joint ownership of the mortgaged
property to other non-elderly, non-occupant parties and by permitting a
living trust to hold legal title to the home for benefit of the elderly
homeowner.
Section 206.45
A new paragraph (e) would be added to Sec. 206.45 to incorporate
the free assumability regulations at 24 CFR 203.41 and 234.66 which
were published in a final rule at 58 FR 42645 (August 11, 1993). Those
rules codify HUD's general policy that the property mortgaged under its
single family mortgage insurance programs must be freely marketable
except for a limited number of specific exceptions, primarily those
permissible for affordable housing purposes. While HUD does not have
the same concerns about restrictions on assumptions for the HECM
program as for other single family programs, because a HECM by its
nature is not assumable, HUD is concerned that any property acquired by
the mortgagee or HUD through foreclosure or deed-in-lieu of foreclosure
needs to be readily marketable without restrictions to a wide potential
market. HUD has identified one area of special impact of this policy on
the HECM program for which it specifically seeks comment. The rule
would prevent use of the HECM program for a unit in a condominium if
the condominium association possesses a right of first refusal (unless
the condominium project received written approval from HUD prior to
September 10, 1993). HUD believes that there may be a substantial
number of condominiums existing prior to that date that did not obtain
FHA approval, have condominium associations with rights of first
refusal, and have current unit owners that would be prospective
applicants for a HECM. A recent proposed amendment of Sec. 206.51 (60
FR 32630, June 23, 1995) would permit HECMs on some individual units in
a condominium project that have not received HUD approval but such
units would also be affected by the proposed change to Sec. 206.45. HUD
therefore also seeks comment on whether, if the proposed change to
Sec. 206.51 is adopted, HUD should insure a HECM on a unit in a
condominium project that does not meet usual HUD policy regarding
rights of first refusal.
Section 206.125
Paragraph (d) of Sec. 206.125 would be amended to apply HUD's State
by State time frames to define ``reasonable diligence'' as provided in
24 CFR 203.356.
Section 206.209
Section 206.209 would be revised to reflect the proposed policy
that pre-payments do not increase the amount of funds available to be
borrowed as discussed for Sec. 206.3. The regulation also would provide
that in the event the prepayment is made from insurance or condemnation
proceeds, the principal limit would decrease by the amount of proceeds
not applied to repair of the property. This will reflect the permanent
reduction in the value of the security that resulted from the
condemnation or unrepaired damage.
The prepayment requirements which permit the mortgagee to charge
interest if the prepayment is not made within the required time frames
would be eliminated. The current prepayment provision parallels the
prepayment procedures for Section 203(b) mortgages. The prepayment
regulation for Section 203(b) mortgages is necessary to assure that
prepayments are made in a timely fashion so that interest due to GNMA
security holders is available to the GNMA issuers. Since HECMs are not
securitized there is no need to restrict the time of prepayment.
Other Matters
Environmental Impact
A Finding of No Significant Impact with respect to the environment
has been made in accordance with HUD regulations at 24 CFR part 50,
which implements section 102(2)(C) of the National Environmental Policy
Act of 1969 (NEPA). This Finding of No Significant Impact is available
for public inspection between 7:30 a.m. and 5:30 p.m. weekdays in the
Office of the Rules Docket Clerk, Office of the General Counsel,
Department of Housing and Urban Development Room 10276, 451 Seventh
Street, SW, Washington, DC 20410.
Impact on Small Entities
The Secretary, in accordance with the Regulatory Flexibility Act (5
U.S.C. 605(b)), has reviewed this proposed rule before publication and
by approving it certifies that this proposed rule would not have a
significant economic impact on a substantial number of small entities.
The proposed rule is limited to revision of the Home Equity Conversion
Mortgage Demonstration. Specifically, the requirements of the proposed
rule are directed to making the program more efficient for
participating mortgagees, mortgagors and the Department.
Executive Order 12612, Federalism
The General Counsel, as the Designated Official under section 6(a)
of Executive Order 12612, has determined that Sec. 206.8 of the
proposed rule has federalism implications. Specifically, the rule
provides that State law on lien priority would be preempted if HECM
loan advances made by private mortgagees would not have a first lien
priority (subject only to liens for State or local taxes or special
assessments). (Preemption is not an issue for loan advances made by HUD
because Federal law rather than State law would apply under United
States v. Kimbell Foods, Inc., 440 U.S. 715 (1979).
The purpose of the proposed rule is to permit a mortgagee to be
able to continue to make loan advances in accordance with the loan
agreement (including advances for accruing interest and mortgage
insurance premiums) as long as the elderly homeowner/mortgagor desires
to continue to occupy his or her home, while still maintaining a first
lien priority for all advances. If State law was applied and resulted
in granting priority to some other lien created after the HECM was
recorded, the mortgagee would need to stop further payments to the
mortgagor. The mortgagee might also need to foreclose to stop the
continuing accrual of items such as interest and mortgage insurance
premium with a junior lien priority. Either result would conflict with
the HECM program goal of preventing displacement of the elderly
homeowner, either directly from foreclosure or indirectly because of
lack of funds available to the homeowner for the expenses of
homeownership.
This conflict itself might result in preemption of State law under
relevant Supreme Court opinions. The proposed rule would remove any
doubt and provide needed clarification for HUD, mortgagees, and other
creditors who may rely on the mortgagor's equity. HUD has concluded
that State law would ordinarily result in a first lien status for all
HECM loan advances, but is concerned that applicable law is not always
clear and that some situations might occur in which the application of
State law would leave the first lien status in doubt. The effect of the
proposed preemption is likely to be small but it is important to ensure
that the HECM program remains a first mortgage program as intended by
Congress.
HUD has concluded that it is not necessary to preempt laws that
would give priority to liens for unpaid State or local taxes or special
assessments. If the mortgagee pays them and later files an
[[Page 21922]]
insurance claim, HUD would reimburse the mortgagee for those amounts as
part of the insurance benefits. This distinguishes these liens from
other liens and there is therefore no need to object to a superior lien
position. This exception permitting superior liens for unpaid taxes and
special assessments means that the proposed rule would have no
substantial direct effects on States or their political subdivisions,
or the relationship between the Federal government and the States.
The Department believes that although the proposed rule might have
federalism implications, it is designed to achieve a legitimate Federal
purpose and is carefully crafted to limit its effects to those
necessary to achieve that end. In these circumstances, the Department
believes that the Order imposes no bar to implementation of the rule.
For these reasons, the General Counsel has determined that the rule's
federalism implications are not sufficiently significant to warrant
preparation of a Federalism Assessment under section 6(b) of the Order.
Executive Order 12606, The Family
The General Counsel, as the Designated Official under Executive
Order 12606, The Family, has determined that this proposed rule would
not have potential for significant impact on family formation,
maintenance, and general well-being, and, thus, is not subject to
review under the order. No significant change in existing HUD policies
or programs will result from promulgation of this rule, as those
policies and programs relate to family concerns.
List of Subjects in 24 CFR Part 206
Aged, Condominiums, Loan programs--housing and community
development, Mortgage insurance, Reporting and recordkeeping
requirements.
Accordingly, 24 CFR part 206 is proposed to be amended as follows:
PART 206--HOME EQUITY CONVERSION MORTGAGE INSURANCE
1. The authority citation for part 206 continues to read as
follows:
Authority: 12 U.S.C. 1715b, 1715z-20; 42 U.S.C. 3535(d).
2. Section 206.3 is amended by revising the first sentence of the
definition of ``expected average mortgage interest rate,'' by revising
the definition of ``principal limit,'' and by adding a new definition
of ``mortgage balance,'' to read as follows:
Sec. 206.3 Definitions.
* * * * *
Expected average mortgage interest rate means the mortgage interest
rate used to calculate future payments to the mortgagor and is
established when the mortgage interest rate is established. * * *
* * * * *
Mortgage balance means the total amount of accrued debt calculated
in accordance with the terms of the mortgage. For the purpose of
recalculating payments under Secs. 206.19(c), 206.25(b)(ii), 206.25(d)
and 206.26(c), the mortgage balance includes principal that has been
repaid, including insurance or condemnation proceeds that have been
applied to the debt, unless the mortgage was executed before [effective
date of final rule].
* * * * *
Principal limit means the maximum disbursement that could be
received in any month under a mortgage, assuming that no other
disbursements are made, taking into account the age of the youngest
mortgagor, the mortgage interest rate, and the maximum claim amount.
Mortgagors over the age of 95 will be treated as though they are 95 for
purposes of calculating the principal limit. The principal limit is
used to calculate payments to a mortgagor. It is calculated for the
first month that a mortgage could be outstanding using factors provided
by the Secretary. It increases each month thereafter at a rate equal to
one-twelfth of the mortgage interest rate in effect at that time, plus
one-twelfth of one-half percent per annum, unless the mortgage was
executed on or after [effective date of final rule]. If the mortgage
was executed before [effective date of final rule], the principal limit
increases at a rate equal to the expected average mortgage interest
rate plus one-twelfth of one-half percent per annum. The principal
limit may decrease because of insurance or condemnation proceeds
applied to the mortgage balance under Sec. 209.209(b) of this chapter.
* * * * *
3. Subpart A is amended by adding a new Sec. 206.8, to read as
follows:
Sec. 206.8 Preemption.
(a) Lien priority. The full amount secured by the mortgage shall
have the same priority over any other liens on the property as if the
full amount had been disbursed on the date the initial disbursement was
made, regardless of the actual date of any disbursement. The amount
secured by the mortgage shall include all direct payments by the
mortgagee to the mortgagor and all other loan advances permitted by the
mortgage for any purpose including loan advances for interest, taxes
and special assessments, premiums for hazard or mortgage insurance,
servicing charges and costs of collection, regardless of when the
payments or loan advances were made. The priority provided by this
section shall apply notwithstanding any State constitution, law or
regulation.
(b) Second mortgage. If the Secretary holds a second mortgage, it
shall have a priority subordinate only to the first mortgage (and any
senior liens permitted by paragraph (a) of this section).
4. Section 206.19 is amended to revise paragraph (c), to read as
follows:
Sec. 206.19 Payment options.
* * * * *
(c) Line of credit payment option. Under the line of credit payment
option, payments are made by the mortgagee to the mortgagor at times
and in amounts determined by the mortgagor as long as the amounts do
not exceed the payment amounts permitted by Sec. 206.25(d).
* * * * *
5. Section 206.21 is amended to add paragraph (b)(3), to read as
follows:
Sec. 206.21 Interest rate.
* * * * *
(b) * * *
(3) A mortgage providing for monthly adjustments to the interest
rate may be converted by the Secretary to one providing for annual
adjustments at any time after the mortgage is assigned to the Secretary
by providing notice to the mortgagor.
* * * * *
6. Section 206.25 is amended to revise paragraph (d), to read as
follows:
Sec. 206.25 Calculation of payments.
* * * * *
(d) Line of credit separately or with monthly payments. If the
mortgagor has a line of credit, separately or combined with the term or
tenure payment option, the principal limit is divided into an amount
set aside for servicing charges under Sec. 206.19(d), an amount equal
to the line of credit (including any portion of the principal limit set
aside for repairs or property charges under Sec. 206.19(d)), and the
remaining amount of the principal limit (if any). The line of credit
amount increases at the same rate as the total principal limit
increases under Sec. 206.3. A payment under the line of credit may not
exceed the difference between the current amount of the principal limit
for the line of credit and the portion of the mortgage balance,
including accrued interest and MIP,
[[Page 21923]]
attributable to draws on the line of credit.
* * * * *
7. Section 206.26 is amended to revise paragraph (d), to read as
follows:
Sec. 206.26 Change in payment option.
* * * * *
(d) Fee for change in payment. The mortgagee may charge a fee, not
to exceed an amount determined by the Secretary, whenever payments are
recalculated.
* * * * *
8. Section 206.27 is amended to revise paragraphs (c)(1) and (d),
to read as follows:
Sec. 206.27 Mortgage provisions.
* * * * *
(c) * * *
(1) The mortgage shall state that the mortgage balance will be due
and payable in full if
(i) A mortgagor dies and the property is not the principal
residence of at least one surviving mortgagor, or
(ii) A mortgagor conveys all or his or her title in the property
and no other mortgagor retains title to the property. For purposes of
the preceding sentence, a mortgagor retains title in the property if
the mortgagor continues to hold title to any part of the property in
fee simple, as a leasehold interest as set forth in Sec. 206.45(a), or
as a life estate.
* * * * *
(d) Second mortgage to Secretary. Unless otherwise provided by the
Secretary, a second mortgage to secure any payments by the Secretary as
provided in Sec. 206.121(c) must be given to the Secretary before a
Mortgage Insurance Certificate is issued for the mortgage.
* * * * *
9. Section 206.35 is amended by adding a new sentence at the end,
to read as follows:
Sec. 206.35 Title held by mortgagor..
* * * If one or more mortgagors hold a life estate in the property,
for purposes of this section only the term ``mortgagor'' shall include
each holder of a future interest in the property (remainder or
reversion) who has executed the mortgage.
10. Section 206.45 is amended to add a new paragraph (e), to read
as follows:
Sec. 206.45 Eligible properties.
* * * * *
(e) Freely marketable. The property must be freely marketable.
Conveyance of the property may only be restricted as permitted under 24
CFR 203.41 or 234.66 and this part.
11. Section 206.117 is revised to read as follows:
Sec. 206.117 General.
The Secretary is required by statute to take any action necessary
to provide a mortgagor with funds to which the mortgagor is entitled
under the mortgage and which the mortgagor does not receive because of
the default of the mortgagee. The Secretary may hold a second mortgage
to secure repayment by the mortgagor under Sec. 206.27(d) or may accept
assignment of the first mortgage.
12. Section 206.121 is amended by revising the first two sentences
of paragraph (c), to read as follows:
Sec. 206.121 Secretary authorized to make payments.
* * * * *
(c) Second mortgage. If the contract of insurance is terminated as
provided in Sec. 206.133(c), all payments to the mortgagor by the
Secretary will be secured by the second mortgage, if any. Payments will
be due and payable in the same manner as under the insured first
mortgage, except that if the first mortgage provided for monthly
adjustments to the interest rate under Sec. 206.21(b)(2) then the
Secretary may convert the second mortgage to an annually adjustable
interest rate under Sec. 206.21(b)(1) at any time by providing notice
to the mortgagor. * * *
13. Section 206.125 is amended to revise paragraph (d)(3), to read
as follows:
Sec. 206.125 Acquisition and sale of the property.
* * * * *
(d) * * *
(3) The mortgagee must give written notice to the Secretary within
30 days after the initiation of foreclosure proceedings, and must
exercise reasonable diligence in prosecuting the foreclosure
proceedings to completion and in acquiring title to and possession of
the property. A time frame that is determined by the Secretary to
constitute ``reasonable diligence'' for each State is made available to
mortgagees.
* * * * *
14. Section 206.209 is revised to read as follows:
Sec. 206.209 Prepayment.
(a) No charge or penalty. The mortgagor may prepay a mortgage in
full or in part without charge or penalty at any time, regardless of
any limitations on prepayment stated in a mortgage. Amounts prepaid are
not available to be re-borrowed, unless the mortgage was executed
before [effective date of final rule].
(b) Insurance and condemnation proceeds. If insurance or
condemnation proceeds are paid to the mortgagee, the principal limit
and the mortgage balance shall be reduced by the amount of the proceeds
not applied to restoration or repair of the damaged property.
Dated: April 12, 1996.
Nicolas P. Retsinas,
Assistant Secretary for Housing-Federal Housing Commissioner.
[FR Doc. 96-11649 Filed 5-9-96; 8:45 am]
BILLING CODE 4210-27-P
Complete official Federal Register PDF
FR Doc. 96-11648 Office of the Assistant Secretary for HousingFederal Housing Commissioner; Mortgage Broker Fee Disclosure Rule: Notice of Meeting of Negotiated Rulemaking Advisory Committee
[Federal Register Volume 61, Number 92 (Friday, May 10, 1996)]
[Proposed Rules]
[Page 21394]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11648]
=======================================================================
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Part 3500
[Docket No. FR-3780-N-07]
RIN 2502-AG40
Office of the Assistant Secretary for Housing--Federal Housing
Commissioner; Mortgage Broker Fee Disclosure Rule: Notice of Meeting of
Negotiated Rulemaking Advisory Committee
AGENCY: Office of the Assistant Secretary for Housing--Federal Housing
Commissioner, HUD.
ACTION: Notice of committee meeting.
-----------------------------------------------------------------------
SUMMARY: The Department has established a Negotiated Rulemaking
Advisory Committee to address certain issues concerning indirect
payments to mortgage brokers and certain other mortgage originators
(retail lenders) and volume-based compensation. The committee, which
consists of representatives with a definable stake in the outcome of a
proposed rule, has convened on 5 prior occasions in the past 5 months.
This notice announces the time and place for the next meeting. This
meeting is open to the public.
DATES: The sixth meeting of the committee will be held on May 20-21,
1996. On Monday, May 20, the meeting will start at 9:00 a.m. and will
end at 5:00 p.m., and on Tuesday, May 21, the meeting will start at
9:00 a.m. and run until approximately 4:00 p.m.
ADDRESSES: The next meeting of the committee will be held in the
Headquarters of the American Association of Retired Persons, 601 ``E''
Street, NW., Room 120, Floor 2-B, Washington, DC.
FOR FURTHER INFORMATION CONTACT: David R. Williamson, Director, Office
of Consumer and Regulatory Affairs, Department of Housing and Urban
Development, 451 7th Street, SW., Room 5241, Washington, DC 20410-
8000); telephone number: (202) 708-4560 (this is not a toll-free
number); e-mail through Internet at [email protected]. For
hearing- and speech-impaired persons, this number may be accessed via
TDD by calling the Federal Information Relay Service at 1-800-877-8339.
SUPPLEMENTARY INFORMATION: On December 8, 1995 (60 FR 63008), HUD
published a notice announcing the establishment and first meeting of
the Negotiated Rulemaking Advisory Committee on Mortgage Broker
Disclosures, to discuss and negotiate a proposed rule on the treatment
under RESPA, including disclosure requirements, of payments to retail
lenders and of volume-based compensation to mortgage brokers. The
committee convened in Washington, DC, on December 13-14, 1995; January
18-19, 1996; February 22-23, 1996; March 18-19, 1996; and April 8-9,
1996. The committee expects that the upcoming meeting on May 20-21 will
be the last meeting for this rulemaking effort.
This meeting is open to the public, with limited seating available
on a first-come, first-served basis.
Authority: 42 U.S.C. 1437g, 3535(d).
Dated: May 3, 1996.
James E. Schoenberger,
Associate General Deputy Assistant Secretary for Housing Federal
Housing Commissioner.
[FR Doc. 96-11648 Filed 5-9-96; 8:45 am]
BILLING CODE 4210-27-U
Complete official Federal Register PDF
FR Doc. 96-11640 Over-the-Counter Drug Products Intended for Oral Ingestion that Contain Alcohol; Proposed Amendment of Final Rule
[Federal Register Volume 61, Number 92 (Friday, May 10, 1996)]
[Proposed Rules]
[Pages 21392-21394]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11640]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
21 CFR Part 328
[Docket No. 95N-0341]
Over-the-Counter Drug Products Intended for Oral Ingestion that
Contain Alcohol; Proposed Amendment of Final Rule
AGENCY: Food and Drug Administration, HHS.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Food and Drug Administration (FDA) is issuing a notice of
proposed rulemaking that would amend the regulations for over-the-
counter (OTC) drug products intended for oral ingestion that contain
alcohol as an inactive ingredient by exempting ipecac syrup from the
maximum concentration limits of 0.5 percent alcohol or less when used
by children under 6 years of age. This proposal is part of the ongoing
review of OTC drug products conducted by FDA.
DATES: Submit written comments by June 10, 1996; written comments on
the agency's economic impact determination by June 10, 1996. The agency
is proposing that any final rule based on this proposal become
effective on the date of its publication in the Federal Register.
ADDRESSES: Submit written comments to the Dockets Management Branch
[[Page 21393]]
(HFA-305), Food and Drug Administration, 12420 Parklawn Dr., rm. 1-23,
Rockville, MD 20857.
FOR FURTHER INFORMATION CONTACT: William E. Gilbertson, Center for Drug
Evaluation and Research (HFD-105), Food and Drug Administration, 5600
Fishers Lane, Rockville, MD 20857, 301-827-2304.
SUPPLEMENTARY INFORMATION:
I. Background
In the Federal Register of March 13, 1995 (60 FR 13590), the agency
issued a final rule establishing in Sec. 328.10 (21 CFR 328.10) maximum
concentration limits for alcohol (ethyl alcohol) as an inactive
ingredient in OTC drug products intended for oral ingestion. The
maximum concentration limit was set at 0.5 percent for any OTC drug
product labeled for use by children under 6 years of age, and 5 percent
for any OTC drug product labeled for use by children 6 to under 12
years of age. The final rule did not discuss ipecac syrup, an OTC drug
product used to cause vomiting when poisoning occurs.
The United States Pharmacopeia (USP) 23d Revision states that
alcohol is contained in ipecac syrup in concentrations between 1.0 and
2.5 percent (Ref. 1). Alcohol is used in the preparation of the syrup
to ensure the complete extraction of alkaloids as their amine salts
from ipecac powder and to reject extraneous material when ipecac syrup
is prepared by percolation (Ref. 2).
Under Sec. 201.308(c) (21 CFR 201.308(c)), OTC marketing of ipecac
syrup is limited to a 1-fluid-ounce (30 milliliters (mL)) package. The
product's labeling must contain a statement conspicuously boxed and in
red letters that states: ``For emergency use to cause vomiting in
poisoning. Before using, call physician, the Poison Control Center, or
hospital emergency room immediately for advice.'' The labeling also
must state: ``Usual dosage: 1 tablespoon (15 milliliters) in persons
over 1 year of age.''
As part of the rulemaking for OTC poison treatment drug products
(50 FR 2244, January 15, 1985), the agency proposed a dose of 1
tablespoonful (15 mL or 1/2 bottle) of ipecac syrup for children 1 to
under 12 years of age. The agency also proposed a dose of 1 teaspoonful
(5 mL) for children 6 months to under 1 year of age, and that ipecac
syrup not be given to children under 6 months of age unless directed by
a health professional. The agency will finalize these directions for
use in a future issue of the Federal Register.
References
(1) United States Pharmacopeia 23d Revision National Formulary
18, United States Pharmacopeial Convention, Inc., Rockville, MD, pp.
834-835, 1994.
(2) ``Solutions Using Mixed Solvent Systems: Spirits, Elixirs,
and Extracted Products,'' in Sprowls' American Pharmacy, 7th ed., J.
B. Lipincott Co., Philadelphia, pp. 100-101, 1974.
II. The Agency's Proposed Amendment
The agency is proposing to exempt ipecac syrup from the
requirements of Sec. 328.10(d), which limit alcohol content to 0.5
percent or less in OTC drug products intended for oral ingestion for
use by children 6 years of age or less.
Ipecac syrup is indicated for use in potential life-threatening
emergencies with directions for use calling for a one-time treatment
dose of 15 mL for children 1 to under 12 years of age. Ipecac syrup is
usually used under the advice of a health professional, and it is not
indicated for repeated or routine use. Because the maximum amount of
ipecac syrup per packaged container does not exceed 30 mL, the maximum
quantity of alcohol at a 2.5 percent concentration contained in 30 mL
of ipecac syrup is 0.75 mL. If a child under 6 years old swallowed the
entire contents of a 30 mL container of ipecac syrup, the ingested
amount of alcohol (0.75 mL) is insignificant. In addition, the alcohol
and the ipecac syrup are generally vomited together with other stomach
contents. The agency concludes that the benefit of ipecac syrup as an
emetic outweighs any risk of adverse effects from ingestion of 0.75 mL
of alcohol. Accordingly, the agency is proposing to add a new paragraph
to Sec. 328.10 to state: ``Ipecac syrup is exempt from the provisions
of paragraph (d) of this section.'' This means that ipecac syrup may
contain more than 0.5 percent alcohol even though labeled for use by
children under 6 years of age. The agency is designating this new
paragraph as paragraph (f) and redesignating current paragraph (f) as
paragraph (g).
III. Analysis of Impacts
The agency has examined the economic consequences of this proposed
rulemaking in conjunction with other rules resulting from the OTC drug
review. In a notice published in the Federal Register of February 8,
1983 (48 FR 5806), the agency announced the availability of an
assessment of these economic impacts. The assessment determined that
the combined impacts of all the rules resulting from the OTC drug
review do not constitute a major rule according to the criteria
established by Executive Order 12291. Executive Order 12291 has been
superseded by Executive Order 12866. FDA has examined the impacts of
the proposed rule under Executive Order 12866 and the Regulatory
Flexibility Act (Pub. L. 96-354). Executive Order 12866 directs
agencies to assess all costs and benefits of available regulatory
alternatives and, when regulation is necessary, to select regulatory
approaches that maximize net benefits (including potential economic,
environmental, public health and safety, and other advantages;
distributive impacts; and equity). The agency believes that this
proposed rule is consistent with the regulatory philosophy and
principles identified in the Executive Order. In addition, the proposed
rule is not a significant regulatory action as defined by the Executive
Order and, thus, is not subject to review under the Executive Order.
The Regulatory Flexibility Act requires agencies to analyze
regulatory options that would minimize any significant impact of a rule
on small entities. This proposal has no effect on the OTC marketing of
ipecac syrup drug products. Therefore, the agency certifies that this
proposal, if implemented, will not have a significant economic impact
on a substantial number of small entities.
The agency invites public comment regarding any substantial or
significant economic impact that this rulemaking would have on OTC drug
products intended for oral ingestion that contain alcohol as an
inactive ingredient. Comments regarding the impact of this rulemaking
on OTC drug products intended for oral ingestion that contain alcohol
as an inactive ingredient should be accompanied by appropriate
documentation.
IV. Environmental Impact
The agency has determined under 21 CFR 25.24(c)(6) that this action
is not of a type that does not individually or cumulatively have a
significant effect on the human environment. Therefore, neither an
environmental assessment nor an environmental impact statement is
required.
V. Request for Comments
Interested persons may, on or before June 10, 1996, submit to the
Dockets Management Branch (address above) written comments or
objections on the proposed regulation. Written comments on the agency's
economic impact determination may be submitted on or before June 10,
1996. Three copies of all comments or objections are to be submitted,
except that individuals may submit one copy. Comments or
[[Page 21394]]
objections are to be identified with the docket number found in
brackets in the heading of this document and may be accompanied by a
supporting memorandum or brief. The agency has determined that comments
or objections should be submitted within 30 days because this proposal
has no effect on currently marketed products.-
List of Subjects in 21 CFR Part 328
Drugs, Labeling, Alcohol.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under
authority delegated to the Commissioner of Food and Drugs, it is
proposed that 21 CFR part 328 be amended as follows:
PART 328--OVER-THE-COUNTER DRUG PRODUCTS INTENDED FOR ORAL
INGESTION THAT CONTAIN ALCOHOL
1. The authority citation for 21 CFR part 328 continues to read as
follows:
Authority: Secs. 201, 301, 501, 502, 503, 505, 701 of the
Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321, 331, 351, 352,
353, 355, 371).
2. Section 328.10 is amended by redesignating paragraph (f) as
paragraph (g) and by adding new paragraph (f) to read as follows:
Sec. 328.10 Alcohol.
* * * * *
(f) Ipecac syrup is exempt from the provisions of paragraph (d) of
this section.
* * * * *
Dated: May 1, 1996.
William K. Hubbard,
Associate Commissioner for Policy Coordination.
[FR Doc. 96-11640 Filed 5-9-96; 8:45 am]
BILLING CODE 4160-01-F
Complete official Federal Register PDF
FR Doc. 96-11635 Horses Imported Into the United States
[Federal Register Volume 61, Number 92 (Friday, May 10, 1996)]
[Proposed Rules]
[Pages 21389-21392]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11635]
========================================================================
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. 92 / Friday, May 10, 1996 / Proposed
Rules
[[Page 21389]]
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
9 CFR Part 92
[Docket No. 95-053-1]
Horses Imported Into the United States
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: We are proposing to amend the horse importation regulations to
clarify the information required on the application for a permit to
import horses into the United States and to clarify health certificate
requirements for imported horses that transit another country en route
to the United States. We believe that these proposed actions are
necessary to ensure that importers of horses provide adequate and
accurate information on import permit applications and to ensure that
horses are properly handled from the time the horses leave their farm
of origin until the horses arrive in the United States. These proposed
amendments appear necessary to ensure the continued protection of the
health of horses in the United States.
DATES: Consideration will be given only to comments received on or
before July 9, 1996.
ADDRESSES: Please send an original and three copies of your comments to
Docket No. 95-053-1, Regulatory Analysis and Development, PPD, APHIS,
suite 3C03, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please
state that your comments refer to Docket No. 95-053-1. Comments
received may be inspected at USDA, room 1141, South Building, 14th
Street and Independence Avenue SW., Washington, DC, between 8 a.m. and
4:30 p.m., Monday through Friday, except holidays. Persons wishing to
inspect comments are requested to call ahead on (202) 690-2817 to
facilitate entry into the comment reading room.
FOR FURTHER INFORMATION CONTACT: Dr. Joyce Bowling, Staff Veterinarian,
Import/Export Animals, National Center for Import and Export, VS,
APHIS, 4700 River Road Unit 39, Riverdale, MD 20737-1231, (301) 734-
8170.
SUPPLEMENTARY INFORMATION:
Background
The regulations in 9 CFR part 92 (referred to below as ``the
regulations'') govern the importation into the United States of
specified animals, including horses, to prevent the introduction of
various animal diseases into the United States.
Under Sec. 92.304, importers must apply for a permit to import
horses into the United States. The regulations state that importers
must provide certain information, including the route of travel, for
horses being imported into the United States, and the required
information must appear on the application for an import permit.
Under Sec. 92.314, horses imported into the United States must be
accompanied by a health certificate completed by a salaried veterinary
officer of the national government of the country of origin indicating
the horses' freedom from communicable diseases such as contagious
equine metritis and African horse-sickness. Additionally, Sec. 92.314
requires that ``a horse presented for importation from a country where
it has been for less than 60 days shall be accompanied by a like
certificate similarly issued by a salaried veterinary officer of the
national government of each country in which the horse has been during
the 60 days immediately preceding shipment from the last country from
which it is shipped to the United States.''
We are proposing to amend the regulations by adding definitions of
the terms ``country of origin'' and ``country of transit'' and by
adding an explanation of the words ``route of travel.''
We propose to define ``country of origin'' as the ``country in
which the horse was born, was raised, and remained until shipment to
the United States, or the country into which the horse was legally
imported and has remained for a period of not less than 60 days prior
to shipment to the United States.'' In cases of horses legally imported
into their country of origin, we have determined that a 60-day
residency requirement would maintain consistency with other
requirements in the regulations. We would define ``country of origin''
in the regulations because, in the past, there has been some confusion
on the part of importers concerning the meaning of the term ``country
of origin,'' especially when a horse is moved to another country for
shipment to the United States. In limited cases, the country from which
the horse was directly shipped to the United States was mistakenly
identified as the country of origin on the horse's import permit. We
also propose to define ``country of transit'' as a ``country through
which a horse travels en route from the country of origin to the United
States.'' A complete list of the countries of transit should appear in
the ``route of travel'' section of the import permit application, but,
on occasion, importers have mistakenly omitted countries through which
a shipment of horses traveled en route to the United States.
In addition, we propose to specify that ``route of travel'' must
include a list of all of the countries that the horse will transit en
route to the United States, all of the modes of transportation that
will be used to move the horse from the country of origin to the port
of entry in the United States, and all of the locations where the horse
will be offloaded prior to arrival at the U.S. port of entry. In the
past, in addition to neglecting to list all of the countries of
transit, some importers have mistakenly omitted information on the
modes of transportation used to transport a shipment of horses and
locations where the shipment of horses will be offloaded. Because
different countries have different disease statuses, and the risk of
the horses' exposure to disease increases when shipped by ground
transportation and when offloaded at some locations within countries of
transit, a complete assessment of the import risk associated with a
particular shipment of horses is only possible when all of the
essential information is available on the import permit application.
We believe that by defining the terms ``country of origin'' and
``country of transit'' and by clarifying the words ``route of travel,''
importers would know exactly what information needs to be provided on
the application for an import permit. This action would improve
compliance with the regulations and continue to ensure that
[[Page 21390]]
horses intended for importation into the United States do not pose a
disease risk to the domestic horse population.
We are also proposing to clarify the regulations concerning
locations for offloading. Currently, the regulations do not specify
appropriate locations where horses may be offloaded in countries of
transit. We are proposing to require that if, during shipment to the
United States, a horse is offloaded in a country of transit, then that
horse must be offloaded in a facility that is capable of being cleaned
and disinfected and that is approved by the country of transit's
Ministry of Agriculture for the offloading of in-transit horses. We are
also proposing to specify that while the horse is offloaded in the
facility, the horse must be kept separate from all other horses. This
action would reduce the risk that horses intended for importation into
the United States would come into contact with other horses of unknown
disease status en route to the United States.
Additionally, we are proposing to clarify the requirements
concerning health certificates from countries of transit. We propose to
amend Sec. 92.314 to ensure that the regulations clearly state that if,
during shipment to the United States, a horse is offloaded in a country
of transit, then that horse must undergo a veterinary inspection and
obtain a health certificate from a salaried veterinary officer of the
national government of the country of transit in which the horse is
offloaded. If a horse is offloaded in more than one country of transit,
then that horse would be required to undergo a veterinary inspection
and obtain a health certificate from a salaried veterinary officer of
the national government in every country of transit in which the horse
is offloaded. This clarification of the requirements would ensure that
any communicable diseases in horses intended for importation into the
United States are diagnosed as early as possible and that appropriate
action is taken to prevent those diseases from being carried into the
United States.
We propose that, after performing the veterinary inspection, the
veterinary officer of a country of transit must complete a form that
describes the horse being shipped, certifies that a health inspection
has been performed on that horse, and assures that the horse is free
from evidence of communicable diseases. We are proposing that the
certification read, ``The animals described on this form have been
given a careful veterinary inspection and found to be free from
evidence of communicable disease and, in my opinion, are fit to
travel.'' The veterinarian would sign this certificate to attest to the
fact that the horse has been inspected, determined to be free of
evidence of communicable diseases, and judged to be in a condition that
would indicate that the animal would be in the same health upon arrival
at its destination in the United States as when inspected in the
country of transit. This inspection and certification would ensure that
horses imported into the United States present a minimal disease risk
to the U.S. horse population.
In addition, we propose to specify that the veterinary inspection
must be performed in the country of transit no earlier than 24 hours
before the horse is reloaded on a transport vehicle for shipment to the
United States. We are proposing a 24-hour time limit in order to
provide flexibility in the timing of the veterinary inspection while
ensuring that the inspection takes place as close to the time of the
horse's departure from a country of transit as possible.
If a horse intended for importation into the United States travels
through any countries other than its country of origin and the United
States but is not offloaded in a country of transit, we propose that
the owner of the horse, or the owner's representative, must sign a
certification statement prior to the horse's shipment from the country
of origin that certifies that the horse will be shipped directly to the
United States. We are proposing that the certification read, ``The
horse will be sent directly from the premises of origin to the premises
of destination without coming into contact with other equine animals
not accompanied by an official health certificate, in vehicles cleaned
and disinfected in advance with a disinfectant officially recognized in
the country of origin.'' This statement would have to be presented upon
the horse's arrival in the United States. If, however, for reasons
beyond the importer's or shipper's control, the horse experiences an
unscheduled offloading in a country of transit, then the horse would
have to undergo a veterinary inspection and obtain a health certificate
from a salaried veterinary officer of the national government of the
country of transit.
Miscellaneous
We are proposing to make other minor, nonsubstantive changes to
Sec. 92.304, such as correcting punctuation. Additionally, we are
proposing to amend Secs. 92.304 and 92.314 by adding a reference to the
end of each section for the Office of Management and Budget control
number assigned to approved information collection and recordkeeping
requirements.
Executive Order 12866 and Regulatory Flexibility Act
This proposed rule has been reviewed under Executive Order 12866.
The rule has been determined to be not significant for the purposes of
Executive Order 12866 and, therefore, has not been reviewed by the
Office of Management and Budget.
We are proposing to clarify the information required on the
application for a permit to import horses into the United States and to
clarify health certificate requirements for imported horses that
transit another country en route to the United States.
As this proposal simply clarifies the regulations and as most
horses arrive in the United States with proper documentation, we do not
expect a significant number of importers to be affected by this action.
For importers not currently in compliance with the regulations, any
cost incurred in complying with the regulations should be offset by the
costs currently incurred by importers when a shipment of horses arrives
in the United States without proper documentation. Currently, when a
horse arrives in the United States without proper documentation, that
horse remains in quarantine until the proper documents are produced, or
the horse is refused entry if the proper documents are not produced.
Therefore, the importer incurs additional user fee costs while the
horse is held in quarantine, or the importer incurs the cost of
shipping the horse back to the country of origin. Therefore, we have
determined that the effect on any U.S. entities, large or small, would
be insignificant.
Under these circumstances, the Administrator of the Animal and
Plant Health Inspection Service has determined that this action would
not have a significant economic impact on a substantial number of small
entities.
Executive Order 12778
This proposed rule has been reviewed under Executive Order 12778,
Civil Justice Reform. If this proposed rule is adopted: (1) All State
and local laws and regulations that are inconsistent with this rule
will be preempted; (2) no retroactive effect will be given to this
rule; and (3) administrative proceedings will not be required before
parties may file suit in court challenging this rule.
Paperwork Reduction Act
In accordance with section 3507(d) of the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.), the information
[[Page 21391]]
collection or recordkeeping requirements included in this proposed rule
have been submitted for approval to the Office of Management and Budget
(OMB). Please send written comments to the Office of Information and
Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington,
DC 20503. Please state that your comments refer to Docket No. 95-053-1.
Please send a copy of your comments to: (1) Docket No. 95-053-1,
Regulatory Analysis and Development, PPD, APHIS, suite 3C03, 4700 River
Road Unit 118, Riverdale, MD 20737-1238, and (2) Clearance Officer,
OIRM, USDA, room 404-W, 14th Street and Independence Avenue SW.,
Washington, DC 20250. A comment to OMB is best assured of having its
full effect if OMB receives it within 30 days of publication of this
proposed rule.
This proposed rule would require that, upon arrival in the United
States, horses travelling through countries of transit en route to the
United States be accompanied by either a certification signed by the
horses' owner verifying that the horses were not offloaded in any
countries of transit or a certification signed by a veterinary officer
of the country of transit in which the horses were offloaded that
attests to the horses' freedom from evidence of communicable disease
when the horse was offloaded and a veterinary inspection was performed
in the country of transit. This proposed rule would therefore introduce
two new information collection requirements that would enable us to
ensure that horses destined for the United States are healthy when they
leave their country of origin, remain healthy during their journey, and
pose a minimal health risk to the U.S. horse population upon arriving
in the United States. We are soliciting comments from the public (as
well as affected agencies) concerning our proposed information
collection. We need this outside input to help us:
(1) Evaluate whether the proposed information collection is
necessary for the proper performance of our agency's functions,
including whether the information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the
proposed information collection, including the validity of the
methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the information collection on those who
are to respond (such as through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology, e.g., permitting electronic
submission of responses).
Estimate of burden: Public reporting burden for this collection of
information is estimated to average 5 minutes per response.
Respondents: Veterinarians and horse owners.
Estimated number of respondents: 250.
Estimated number of responses per respondent: 1.
Estimated Total Annual Burden on Respondents: 21 hours.
Copies of this information collection can be obtained from the
Department of Agriculture, Clearance Officer, OIRM, Ag. Box 7630,
Washington, DC 20250.
List of Subjects in 9 CFR Part 92
Animal disease, Imports, Livestock, Poultry and poultry products,
Quarantine, Reporting and recordkeeping requirements.
Accordingly, 9 CFR part 92 would be amended as follows:
PART 92--IMPORTATION OF CERTAIN ANIMALS AND POULTRY AND CERTAIN
ANIMAL AND POULTRY PRODUCTS; INSPECTION AND OTHER REQUIREMENTS FOR
CERTAIN MEANS OF CONVEYANCE AND SHIPPING CONTAINERS THEREON
1. The authority citation for part 92 would continue to read as
follows:
Authority: 7 U.S.C. 1622; 19 U.S.C. 1306; 21 U.S.C. 102-105,
111, 114a, 134a, 134b, 134c, 134d, 134f, 135, 136, and 136a; 31
U.S.C. 9701; 7 CFR 2.22,
2.80, and 371.2(d).
2. Section 92.300 would be amended by adding definitions for
Country of origin and Country of transit, in alphabetical order, to
read as follows:
Sec. 92.300 Definitions.
* * * * *
Country of origin. The country in which a horse was born, was
raised, and remained until importation to the United States, or the
country into which the horse was legally imported and remained for a
period of not less than 60 days prior to shipment to the United States.
Country of transit. A country through which a horse travels en
route from the country of origin to the United States.
* * * * *
3. Section 92.304 would be amended as follows:
a. In paragraph (a)(1)(i), by revising the second sentence to read
as set forth below.
b. At the end of the section, by adding the following: ``(Approved
by the Office of Management and Budget under control number 0579-
0040)''.
Sec. 92.304 Import permits for horses from countries affected with
CEM, and for horse specimens for diagnostic purposes; 12 and
reservation fees for space at quarantine facilities maintained by
APHIS.
---------------------------------------------------------------------------
\12\ See footnote 7 to subpart C.
---------------------------------------------------------------------------
(a) * * *
(1)(i) * * * The application must specify the name and address of
the importer; the species, breed, number or quantity of horses or horse
test specimens to be imported; the purpose of the importation;
individual horse identification which includes a description of the
horse, name, age, markings, if any, registration number, if any, and
tattoo or eartag; the country of origin; the name and address of the
exporter; the port of embarkation in the foreign country; the route of
travel from the country of origin to the United States, including the
country of origin, all countries of transit, all modes of
transportation, all locations, if any, where the horses will be
offloaded, and the port of entry in the United States; the proposed
date of arrival of the horses or horse test specimens to be imported;
and the name of the person to whom the horses or horse test specimens
will be delivered and the location of the place in the United States to
which delivery will be made from the port of entry. * * *
* * * * *
4. Section 92.314 would be amended as follows:
a. By designating the existing text as paragraph (a) and by adding
a paragraph heading to read ``General requirements.''
b. In newly designated paragraph (a), the proviso beginning with
``And provided, further'' and the text following it is removed and new
text is added in its place to read as set forth below.
c. By adding a new paragraph (b) to read as set forth below.
d. At the end of the section, by adding an OMB control number to
read as set forth below.
Sec. 92.314 Horses, certification, and accompanying equipment.
(a) * * * And provided, further, That upon inspecting horses at the
port of entry and before permitting them to leave the port of entry,
the inspector may require their disinfection and the disinfection of
their accompanying equipment as a precautionary measure against the
introduction of foot-and-mouth disease or any other disease dangerous
to the livestock of the United States.
[[Page 21392]]
(b) Special requirements for horses traveling through countries of
transit. In addition to meeting all of the applicable requirements of
this subpart, horses shipped to the United States through a country or
countries of transit must meet the following conditions:
(1) If a horse intended for importation into the United States will
travel through a country or countries of transit but will not be
offloaded in the country or countries of transit, then, prior to the
horse's shipment from the country of origin, the owner of the horse, or
the owner's representative, must certify that the horse will be shipped
directly to the United States. The certification must read as follows:
``The horse will be sent directly from the premises of origin to the
premises of destination without coming into contact with other equine
animals not accompanied by an official health certificate, in vehicles
cleaned and disinfected in advance with a disinfectant officially
recognized in the country of origin.'' This certification must be
signed by the owner of the horse or the owner's representative, and the
signed certification must be presented to an inspector at the port of
entry in the United States. If, after the certification is signed, an
unscheduled offloading of a shipment of horses occurs in a country of
transit, then the horses must meet all of the requirements of
paragraphs (b)(2) and (b)(3) of this section.
(2) If a horse intended for importation into the United States will
travel through a country or countries of transit and will be offloaded
in the country or countries of transit, then the horse must be
offloaded in a facility that is capable of being cleaned and
disinfected and that is approved by the country of transit's Ministry
of Agriculture for the offloading of in-transit horses. Within the
facility, the horse must be kept separate from all other horses. All
horses offloaded in a country or countries of transit must undergo a
veterinary inspection and receive a health certificate from a salaried
veterinary officer of the national government of each country of
transit in which the horse is offloaded. The veterinary inspection must
be performed no earlier than 24 hours before the horse is reloaded on a
transport vehicle for shipment. If, after performing the inspection,
the salaried veterinary officer of the national government of the
country of transit finds the horse intended for importation into the
United States to be free of evidence of communicable diseases and fit
to travel, the veterinary officer must complete the form shown in
paragraph (b)(3) of this section.
(3) A completed certificate of inspection, as shown below, must
accompany any horse offloaded in a country of transit to the U.S. port
of arrival and be produced for the inspector at the port of arrival
upon the horse's arrival in the United States.
Certification of Inspection of Import Animals
1. Permit No.----------------------------------------------------------
2. Consignor's Name (Last name, first name, middle initial or business
name)------------------------------------------------------------------
3. Consignor's Street Address (Mailing address)------------------------
4. Consignor's City/Town-----------------------------------------------
5. Consignor's Country-------------------------------------------------
6. Consignee's Name (Last name, first name, middle initial or business
name)------------------------------------------------------------------
7. Consignee's City/Town-----------------------------------------------
8. Consignor's State---------------------------------------------------
9. Species of Animals Certified for Import-----------------------------
10. Country of Origin--------------------------------------------------
11. Breed of Animals Certified for Import------------------------------
12. Number of Animals Inspected----------------------------------------
13. Country of Transit/City in Which Inspection Occurred---------------
14. Date of Arrival in and Date of Departure from Country of Transit---
15. Name of Veterinarian Performing Inspection in Country of Transit---
The animals described on this form have been given a careful
veterinary inspection and found to be free from evidence of
communicable disease and, in my opinion, fit to travel.
16. Signature of Veterinarian Performing Inspection in Country of
Transit----------------------------------------------------------------
17. Date Issued--------------------------------------------------------
18. Seal---------------------------------------------------------------
19. Remarks------------------------------------------------------------
(Approved by the Office of Management and Budget under control
number 0579-0040)
Done in Washington, DC, this 3rd day of May 1996.
Terry L. Medley,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 96-11635 Filed 5-9-96; 8:45 am]
BILLING CODE 3410-34-P
Complete official Federal Register PDF
FR Doc. 96-11481 National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List
[Federal Register Volume 61, Number 92 (Friday, May 10, 1996)]
[Proposed Rules]
[Pages 21422-21425]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11481]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 300
[FRL-5502-2]
National Oil and Hazardous Substances Pollution Contingency Plan;
National Priorities List
AGENCY: Environmental Protection Agency.
ACTION: Notice of Intent to Delete the Marathon Battery Company site
from the National Priorities List: Request for Comments.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) Region II announces
its intent to delete the Marathon Battery Company site from the
National Priorities List (NPL) and requests public comment on this
action. The NPL is Appendix B of 40 CFR part 300 which is the National
Oil and Hazardous Substances Pollution Contingency Plan (NCP), which
EPA promulgated pursuant to Section 105 of the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA), as
amended. EPA and the State of New York have determined that no further
cleanup by responsible parties is appropriate under CERCLA. Moreover,
EPA and the State have determined that CERCLA activities conducted at
the Marathon Battery Company site to date have been protective of
public health, welfare, and the environment.
DATES: Comments concerning the deletion of the Marathon Battery Company
site from the NPL may be submitted on or before June 7, 1996.
ADDRESSES: Comments concerning the deletion of the Marathon Battery
Company site from the NPL may be submitted to: Pamela Tames, P.E.,
Remedial Project Manager, U.S. Environmental Protection Agency, Region
II, 290 Broadway, 20th floor, New York, NY 10007-1866.
Comprehensive information on the Marathon Battery Company site is
contained in the EPA Region II public docket, which is located at EPA's
Region II office (the 18th floor), and is available for viewing, by
appointment only, from 9:00 a.m. to 5:00 p.m., Monday through Friday,
excluding
[[Page 21423]]
holidays. For further information, or to request an appointment to
review the public docket, please contact Ms. Tames at (212) 637-4255.
Background information from the Regional public docket is also
available for viewing at the Marathon Battery Company site's
Administrative Record repository located at: Julia Butterfield Memorial
Library, Morris Avenue, Cold Spring, NY 10516.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Introduction
II. NPL Deletion Criteria
III. Deletion Procedures
IV. Basis for Intended Site Deletion
I. Introduction
EPA Region II announces its intent to delete the Marathon Battery
Company site from the NPL and requests public comment on this action.
The NPL is Appendix B to the NCP, which EPA promulgated pursuant to
Section 105 of CERCLA, as amended. EPA identifies sites that appear to
present a significant risk to public health, welfare, or the
environment and maintains the NPL as the list of those sites. Sites on
the NPL may be the subject of remedial actions (RAs) financed by the
Hazardous Substances Superfund Response Trust Fund (the ``Fund'').
Pursuant to Sec. 300.425(e)(3) of the NCP, any site deleted from the
NPL remains eligible for Fund-financed RAs, if conditions at such site
warrant action.
EPA will accept comments concerning the Marathon Battery Company
site for thirty (30) days after publication of this notice in the
Federal Register (until June 7, 1996).
Section II of this notice explains the criteria for deleting sites
from the NPL. Section III discusses the procedures that EPA is using
for this action. Section IV discusses how the Marathon Battery Company
site meets the deletion criteria.
II. NPL Deletion Criteria
The NCP establishes the criteria that the Agency uses to delete
sites from the NPL. In accordance with 40 CFR Section 300.425(e), sites
may be deleted from the NPL where no further response is appropriate.
In making this determination, EPA, in consultation with the State, will
consider whether any of the following criteria have been met:
1. That responsible or other persons have implemented all
appropriate response actions required; or
2. All appropriate Fund-financed responses under CERCLA have been
implemented, and no further cleanup by responsible parties is
appropriate; or
3. The remedial investigation has shown that the release poses no
significant threat to public health or the environment and, therefore,
taking remedial measures is not appropriate.
III. Deletion Procedures
The NCP provides that EPA shall not delete a site from the NPL
until the State in which the release was located has concurred, and the
public has been afforded an opportunity to comment on the proposed
deletion. Deletion of a site from the NPL does not affect responsible
party liability or impede agency efforts to recover costs associated
with response efforts. The NPL is designed primarily for informational
purposes and to assist agency management.
The following procedures were used for the intended deletion of the
Marathon Battery Company site:
1. EPA Region II has recommended deletion and has prepared the
relevant documents.
2. The State of New York has concurred with the deletion decision.
3. Concurrent with this Notice of Intent to Delete, a notice has
been published in local newspapers and has been distributed to
appropriate federal, state and local officials, and other interested
parties. This notice announces a thirty (30)-day public comment period
on the deletion package starting on May 8, 1996 and concluding on June
7, 1996.
4. The Region has made all relevant documents available in the
regional office and the local site information repository.
EPA Region II will accept and evaluate public comments and prepare
a Responsiveness Summary, which will address the comments received,
before a final decision is made. The Agency believes that deletion
procedures should focus on notice and comment at the local level.
Comments from the local community may be most pertinent to deletion
decisions. If, after consideration of these comments, EPA decides to
proceed with deletion, the EPA Regional Administrator will place a
Notice of Deletion in the Federal Register. The NPL will reflect any
deletions in the next update. Public notices and copies of the
Responsiveness Summary will be made available to the public by EPA
Region II.
IV. Basis for Intended Site Deletion
Site History and Background
The Marathon Battery Company site, located in the Village of Cold
Spring, Putnam County, New York, includes a former nickel-cadmium
battery manufacturing facility, the Hudson River in the vicinity of the
Cold Spring pier, and a series of river backwater areas known as East
Foundry Cove, East Foundry Cove Marsh, Constitution Marsh, and West
Foundry Cove. Before the site was remediated, a battery plant and an
underground asphalt- and clay-lined vault containing spoils from
dredging activities in the cove, were located on the facility's
grounds. Twenty-nine houses, located on Constitution Drive, are in the
vicinity of the site.
Nickel-cadmium batteries were manufactured at the plant from 1952-
1979. The plant's wastewater treatment system originally consisted of a
lift station and piping for transfer of all process wastewater into the
Cold Spring sewer system for discharge directly into the Hudson River
at the Cold Spring pier. In addition, a by-pass valve was installed so
that when the lift station was shut down or overloaded, a direct
gravity discharge could be made into the Kemble Avenue storm sewer for
discharge into Foundry Cove.
In the early 1970s, studies conducted by New York University, EPA,
and the New York State Department of Environmental Conservation
(NYSDEC) showed high levels of cadmium contamination in Foundry Cove
sediments. Samples of vegetation and various species of fish, muskrat,
turtle eggs, and green heron revealed high concentrations of cadmium,
as well.
In 1972, the U.S. Department of Justice signed a Consent Agreement
requiring the present and past owners/operators to remove as much
cadmium from the outfall area and channel leading into the cove as was
economically, technically, and ecologically feasible. The dredge spoils
were entombed in the above-described vault. The dredging, however, was
not totally successful. Post-dredging monitoring continued to detect
elevated cadmium concentrations in the cove's sediments, flora, and
fauna. Tidal action slowly flushed some of the remaining cadmium
deposits from the cove into the Hudson River and into Constitution
Marsh, a National Audubon Society sanctuary.
In October 1981, the Marathon Battery Company site was included on
the NPL. In August 1983, EPA and the State of New York signed a
Cooperative Agreement to undertake a remedial investigation and
feasibility study (RI/FS) at the Marathon Battery Company site. The
results of the RI sediment sampling program indicated widespread heavy
metal contamination of the sediments and marsh soils of Foundry
[[Page 21424]]
Cove. The highest level of contamination occurred in East Foundry Cove
Marsh in close proximity to the Kemble Avenue outfall. This area,
characterized by a layer of greenish-white sediment spanning an
approximately 50 by 100 foot area, showed concentrations as high as
171,000, 156,000, and 6,700 milligrams/kilogram (mg/kg) for cadmium,
nickel, and cobalt, respectively. Cadmium levels as high as 2,200 mg/kg
were found in the Hudson River in the vicinity of the Cold Spring pier.
Samples from the former battery facility indicated contamination as
high as 120,000 mg/kg cadmium and 130,000 mg/kg nickel in the rafters,
and up to 600 mg/kg cadmium on the surrounding grounds. Cadmium
concentrations up to 67 mg/kg were found in soils in the adjacent
residential yards.
In March 1986, NYSDEC requested that EPA assume the lead role for
this project. EPA's contractor completed a supplemental RI/FS for the
East Foundry Cove Marsh/Constitution Marsh portion of the site (Area I)
in August 1986.
On September 30, 1986, a Record of Decision (ROD) was signed for
Area I, calling for the dredging of the contaminated sediments
exceeding 100 mg/kg, placement of a clay cap and soil cover on the
excavated marsh areas, restoration of the marsh, chemical fixation of
the excavated sediments, followed by their off-site disposal. Long-term
monitoring was selected for Constitution Marsh.
Supplemental RI activities for the former battery facility (Area
II) were completed in April 1988. A ROD for this operable unit was
signed on September 30, 1988. The selected remedy included
decontamination of the interior of the former battery plant building
and its contents, excavation and chemical fixation of the dredge spoils
vault, excavation and chemical fixation of the cadmium-contaminated
soils on the plant grounds and adjacent properties which exceeded 20
mg/kg (determined by a risk assessment), enhanced volatilization of the
volatile organic compound (VOC)-contaminated soils, and off-site
disposal of the contaminated dust and fixated soils. Long-term
monitoring was selected for the VOC-contaminated ground water
underlying the site. (A search for VOC-contaminated soils on the plant
grounds during the design failed to find a source area. Therefore, the
enhanced volatilization component of the selected remedy was not
designed. The subsequent demolition of the building revealed elevated
levels of VOCs in some sections of the sealed process trenches and an
ejector pit. The contents of the process trench and ejector pit were
sent to an off-site facility for treatment/disposal.)
An RI/FS for the East Foundry Cove, West Foundry Cove, and Hudson
River in the vicinity of the Cold Spring pier portion of the site (Area
III) was completed in June 1989. The Area III ROD was signed on
September 26, 1989. The selected remedy called for dredging one foot of
contaminated sediments to achieve a 95% removal rate from East Foundry
Cove and the Hudson River in the vicinity of the Village of the Cold
Spring pier, followed by chemical fixation and off-site disposal. Long-
term monitoring was selected for West Foundry Cove, a depositional
area.
A consolidated design for Areas I, II (the dredge spoils vault and
the plant grounds), and III was completed in May 1992.
Following the completion of field investigations to more fully
delineate the areas of the adjacent residential properties that
required remediation, in May 1992, this portion of the Area II
remediation effort commenced. When the remedial action was completed in
March 1993, approximately 1,600 cubic yards of contaminated soil had
been excavated and removed.
On March 26, 1989, EPA issued a Unilateral Administrative Order
(UAO) to Marathon Battery Company, Gould Inc., and Merchandise
Dynamics, the property owner, requiring them to decontaminate the
interior of the 114,000-square foot former battery plant (which at the
time was an abandoned book repository) and its contents, to recycle the
decontaminated books, and to properly dispose of contaminated
materials. Following the performance of a pilot-scale study conducted
by Marathon Battery Company's and Gould Inc.'s contractor to evaluate
decontamination techniques, the facility, as well as 4,170 pallets
containing approximately 2.5 million books were decontaminated. Twelve
of seventy-six rolloffs containing debris from the building were
determined to contain hazardous debris and were disposed of at Chemical
Waste Management's hazardous landfill in Model City, New York. The
remaining rolloffs were sent to Waste Management's Modern Landfill in
York, Pennsylvania. While the book and building decontamination work
was completed in December 1991, due to the limited production rate of
available book recycling companies, the recycling of the books
continued until March 1993.
A Consent Decree, in which Gould Inc. agreed to perform the
remedial action and the remaining PRPs, Marathon Battery Company and
the U.S. Army, agreed to a cash settlement, was entered with the
Southern District Court on April 1, 1993. Gould Inc., as the Settling
Work Defendant, chose Sevenson Environmental Services as its
contractor. The U.S. Army Corps of Engineers (USACE) performed
oversight of the work effort.
Full-scale dredging of East Foundry Cove Marsh and East Foundry
Cove and the excavation of the plant grounds began in September 1993.
The treated sediments and soils were stockpiled on the treatment area
for curing and post-treatment testing prior to off-site disposal at
City Management Landfill in Michigan. All treated materials were
subjected to the Toxicity Characteristics Leaching Procedure as
required by EPA and the Extraction Procedure Toxicity Test as required
by the State of Michigan.
Dredging in the Hudson River in the vicinity of the Cold Spring
pier was completed in early July 1994 and dredging of East Foundry Cove
continued until February 1994. All dredged areas underwent post-
remedial sampling and were surveyed to determine whether the proper
concentration or dredging depth was achieved. With regard to East
Foundry Cove Marsh, post-excavation cadmium levels in the sediments did
not exceed the 100 mg/kg action level, averaging 11.75 mg/kg.
In the Hudson River and East Foundry Cove, an average of 10 mg/kg
of cadmium remained, which was consistent with the ROD requirement that
at least one foot of sediment and 95% of the contamination be removed.
The collection of ice and snow on the former battery facility's
roof during the winter of 1993-1994 resulted in the collapse of a
10,000 square foot section of the roof, thereby exposing a portion of
the concrete foundation to the outside elements. This particular
portion of the foundation contained numerous trenches which were used
for waste disposal during the manufacture of nickel-cadmium batteries.
Sample analyses revealed that elevated levels of cadmium and nickel
remained encased in the rubble-filled and cemented-over trenches. Due
to EPA's concern that continued exposure to the elements and freeze/
thaw cycles could cause the concrete floor and/or trenches' cement caps
to heave and crack, possibly resulting in a release of contaminated
dust, the PRPs agreed to demolish the building and remove the
foundation and process trenches. Demolition of the former battery
facility began in
[[Page 21425]]
September 1994 and was completed in January 1995.
Following the demolition of the former battery facility, it was
discovered that a cadmium nitrate tank located on a pedestal
immediately adjacent to the plant had leaked onto the underlying soil
prior to the closing of the plant in 1979. In an attempt to remove this
cadmium-contaminated soil, a twenty-by sixty-foot area was excavated to
a depth of approximately twenty feet (approximately two feet above the
ground-water table). While post-excavation sampling of this area showed
that some cadmium contamination remained in the saturated soils at
levels above the 20 mg/kg action level, and low levels of cadmium were
present in the ground water, it was determined that excavating an
additional four feet of contaminated soil (two feet below the water
table), placing two feet of limestone at the bottom of the excavation
(to keep the cadmium insoluble), and backfilling the excavation with
clean fill would be protective of public health and the environment.
At the completion of the marsh remediation and restoration
activities in April 1995, the marsh was planted with cattails, bull
rush, arrow arrum, and upland shrubs in specified areas.
The plant grounds were regraded and reseeded in July 1995. Fourteen
monitoring wells remain in place on the plant grounds for the long-term
monitoring of the ground water for VOCs and cadmium.
In all, 189,265 tons of treated soils and sediments were
transported off-site (via 1,979 railcars) to City Management Landfill
in Michigan. Chemical Waste Management's hazardous waste landfill in
Model City, New York received 906 tons of hazardous materials.
A Remedial Action Report associated with the remediation of the
adjacent properties was approved on September 28, 1993. A Remedial
Action Report associated with the East Foundry Cove, East Foundry Cove
Marsh, Hudson River in the vicinity of the Cold Spring pier, the former
battery facility, and plant grounds portions of the site was approved
on September 18, 1995. A Superfund Site Close-Out Report was approved
on September 28, 1995.
Summary of Operation and Maintenance and Five-Year Review Requirements
The cattails, bull rush, and arrow arrum, as well as the upland
shrubs, are being monitored on a regular basis by the warden of the
adjacent National Audubon sanctuary, Constitution Marsh.
The Settling Defendants have agreed to monitor the site for up to
thirty years, commencing with the first inspection/monitoring event
that occurred on October 27, 1995.
The long-term monitoring program consists of monitoring the
groundwater, East and West Foundry Cove sediments and surface water and
biological sampling and analysis quarterly the first year, semi-
annually during years two through five, and annually thereafter for a
total of thirty years.
Site inspections are to be coincident with the monitoring events.
The inspections will include visual observations of the marsh soil
cover and erosion controls, groundwater monitoring wells, and general
site conditions. Maintenance, if required, will consist of correcting
observed deficiencies (e.g., repairing ground water monitoring wells)
The fourteen groundwater monitoring wells that comprise the groundwater
monitoring program will be inspected to ensure their integrity. They
will be repaired should they become damaged, or replaced should they
become non-functional.
So that EPA can evaluate the remedy's effectiveness, following each
inspection/sampling event, Gould Inc. is to submit to EPA a monitoring
and inspection program report, summarizing the inspection and sampling
results, and describing any corrective maintenance actions that were
taken. In addition, a review of the long-term monitoring and inspection
program reports will be performed five years after the completion of
the RA to assure that the remedy remains effective in protecting human
health and the environment.
There are no operational requirements related to the implemented
remedy.
Summary of How the Deletion Criteria Has Been Met
Based upon the results of RA sample analyses, survey results, and
site inspections, the site meets the requirements set forth in the
RODs. All contaminated soils and sediments above the specific action
levels set for each operable unit were excavated and/or dredged from
those areas, treated and disposed of off-site. East Foundry Cove Marsh
and the plant grounds have been regraded with clean fill and restored.
An Explanation of Significant Differences, dated May 1995, was issued
by EPA to address the pedestal area on the plant grounds which exceeds
the action level at a depth of 20 feet. However, EPA believes the
placement of two feet of limestone at the bottom of the excavation to
keep the cadmium insoluble, and the backfilling of the excavation with
clean fill is protective of public health and the environment.
EPA and the State have determined that the response actions
undertaken at the Marathon Battery Company site are protective of human
health and the environment.
In accordance with 40 CFR Sec. 300.425 (e), sites may be deleted
from the NPL where no further response is appropriate. EPA, in
consultation with the State, has determined that all appropriate
responses under CERCLA have been implemented and that no further
cleanup by responsible parties is appropriate. Having met the deletion
criteria, EPA proposes to delete the Marathon Battery Company site from
the NPL.
The State has advised EPA that, upon deletion of the Marathon
Battery Company site from the NPL, it proposes to change the
classification of the site on its Registry of Inactive Hazardous Waste
Sites from a Class 2 (a site where the disposal of a consequential
quantity of hazardous waste has been confirmed and presents a
significant threat to the environment or health) to a Class 4 (a site
that has been properly closed, but requires continued operation,
maintenance, and/or monitoring).
Dated: April 12, 1996.
William J. Muszynski,
Acting Regional Administrator.
[FR Doc. 96-11481 Filed 5-9-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-11287 Request for Comments on Establishing Departmental Procedures To Authorize Class III Gaming on Indian Lands When a State Raises an Eleventh Amendment Defense To Suit Under the Indian Gaming Regulatory Act
[Federal Register Volume 61, Number 92 (Friday, May 10, 1996)]
[Proposed Rules]
[Pages 21394-21395]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11287]
=======================================================================
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DEPARTMENT OF THE INTERIOR
National Indian Gaming Commission
25 CFR Part 525
RIN 1076-AD67
Request for Comments on Establishing Departmental Procedures To
Authorize Class III Gaming on Indian Lands When a State Raises an
Eleventh Amendment Defense To Suit Under the Indian Gaming Regulatory
Act
AGENCY: National Indian Gaming Commission, Interior.
ACTION: Advance notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Department of the Interior seeks comments on its authority
under the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. Section 2710,
to promulgate ``procedures'' to authorize Class III gaming on Indian
lands when a State raises an Eleventh Amendment defense to an action
brought against it pursuant to Section ll of the Act, 25 U.S.C. Section
2710(d)(7), and on other related matters. This advance notice is the
result of the Supreme Court decision in Seminole Tribe of Florida v.
State of Florida, 116 S.Ct. 1114 (1996).
DATES: Written public comment is invited and will be considered in the
development of a proposed rule. Comments on this advance notice of
proposed rulemaking must be received no later than July 1, 1996, to be
considered.
ADDRESSES: Any comments concerning this notice, including sections
regarding conformance with statutory and regulatory authorities, may be
sent to: George Skibine, Director, Indian Gaming Management Staff, 1849
C Street, N.W., MS-2070 MIB, Washington, D.C. 20240.
FOR FURTHER INFORMATION CONTACT: George Skibine, Director, Indian
Gaming Management Staff, (202) 219-4066.
SUPPLEMENTARY INFORMATION:
Background
Congress enacted IGRA to provide a statutory basis for the
operation and regulation of Indian gaming and to protect Indian gaming
as a means of generating revenue for tribal governments. 25 U.S.C.
Section 2702;
[[Page 21395]]
Seminole, at 1119. Since its passage in 1988, more than 140 compacts in
more than 20 States have been successfully negotiated, entered into by
States and Tribes and approved by the Secretary. Today, Indian gaming
is a successful industry generating significant governmental revenue
for Indian tribes, which provides funding for essential government
services such as roads, schools, and hospitals. Prior to enactment of
IGRA, States generally were precluded from any regulation of gaming on
Indian reservations. See California v. Cabazon Band of Mission Indians,
480 U.S. 202 (1987). IGRA, by offering States an opportunity to
participate with Indian tribes in developing regulations for Indian
gaming, ``extends to States a power withheld from them by the
Constitution.'' Seminole, at 1124.
IGRA requires an Indian Tribe that wants to conduct casino type
(``Class III'') gaming on its Indian lands to negotiate a ``compact''
of terms and conditions for such gaming with the State in which the
Indian lands are located. IGRA also provides that if the State fails to
bargain, or to do so in good faith, the Tribe may sue the State in
Federal court to enforce the remedial provisions provided by the
statute. Under these provisions, if a court found a State not to be
bargaining in good faith, it would ``order the State and the Indian
Tribe to conclude such a compact within a 60-day period.'' 25 U.S.C.
Section 2710(d)(7)(B)(iii). If thereafter a State and Tribe fail to
conclude a compact within this 60-day period, they ``shall each submit
to a mediator appointed by the court a proposed compact that represents
their last best offer for a compact.'' Id. Section 2710(d)(7)(B)(iv).
The mediator shall then ``select from the two proposed compacts the one
which best comports with the terms of this Act and any other applicable
Federal law and with the findings and order of the court,'' id., and
submit his or her selection to the State and Tribe, id. Section
2710(d)(7)(B)(v). If, within 60 days from the mediator's submission of
his or her selection, the State consents to a proposed compact, such a
compact authorizes Indian gaming pursuant to IGRA. Id.
Section 2710(d)(7)(B)(vi). If the State does not consent to a
compact within 60 days of the mediator's submission, the Secretary of
the Interior shall:
prescribe, in consultation with the Indian tribe, procedures--
(I) which are consistent with the proposed compact selected by
the mediator under [25 U.S.C. Section 2710(d)(7)(B)(iv)], the
provisions of [the Act] and the relevant provisions of the laws of
the State, and
(II) under which class III gaming may be conducted on the Indian
lands over which the Indian tribe has jurisdiction.
25 U.S.C. Section 2710(d)(7)(B)(vii). In practice, only a handful of
cases have required resort to IGRA's judicial enforcement mechanism.
In Seminole Tribe of Florida v. Florida, the Supreme Court affirmed
a decision by the Eleventh Circuit Court of Appeals holding that
Congress may not abrogate State Eleventh Amendment immunity under the
Indian Commerce Clause. The decision raises questions about the process
now to be followed by Tribes who cannot secure State cooperation in the
compacting process.
The Supreme Court's Seminole decision does not affect the validity
of existing class III gaming compacts, but it does require the United
States to consider the effect of a State's refusal to engage in
remedial litigation designed to oversee the compacting process. In its
decision below, the Eleventh Circuit suggested that the compacting
process could proceed as prescribed by IGRA (including litigation) so
long as a State did not assert its Eleventh Amendment immunity. In
light of IGRA's severability clause, the Eleventh Circuit further
expressed the view that if a State pleads an Eleventh Amendment defense
and the suit is dismissed, the Tribe may then notify the Secretary and
the Secretary may prescribe the terms of the particular compact. The
Supreme Court expressly declined to consider the validity of this part
of the Eleventh Circuit's opinion, and Florida's cross-petition for
review of this issue was denied by the Supreme Court. By contrast, the
Ninth Circuit, in its pre-Seminole decision rejecting an Eleventh
Amendment challenge, Spokane Tribe of Indians v. Washington, 28 F.3d
991 (9th Cir. 1994), expressed disagreement with the Eleventh Circuit's
views on that issue. Id. at 997.
In these circumstances, and because of the importance of the issues
to the Tribes, the States, and the general public, the Department seeks
comments regarding the manner in which the compacting provisions of
IGRA may operate following the Supreme Court's Seminole Tribe decision.
Subject Matter of Potential Rulemaking
The Department seeks comments on the following specific issues, and
on other issues directly related to the subject matter of this notice.
(1) The effect of the Supreme Court's decision in Seminole Tribe on
the operation of other provisions in 25 U.S.C. Section 2710(d)(7) when
a State does not waive its Eleventh Amendment immunity to suit;
(2) Whether, and under what circumstances, the Secretary of the
Interior is empowered to prescribe ``procedures'' for the conduct of
Class III gaming when a State interposes an Eleventh Amendment defense
to an action pursuant to 25 U.S.C. Section 2710(d)(7)(B);
(3) What is an appropriate administrative process for the
development of Secretarial procedures;
(4) What procedures should be followed if a State interposes an
Eleventh Amendment defense to an action filed under 25 U.S.C. Section
2710(d)(7)(B);
(5) What procedures can be, and should be, utilized for determining
legal issues that may be in dispute, such as the ``scope of gaming''
permitted under State law. The scope of gaming issue arises when a
State takes the position that it is not required to bargain with a
Tribe with respect to certain Class III games because IGRA does not
authorize such games on the ground that such games are not permitted by
the State ``for any purpose by any person,'' see 25 U.S.C. Section
2710(d)(1)(B)1; and
(6) How any procedures promulgated by the Secretary may, and
should, provide for appropriate regulation of Indian gaming.
Public Review
Comments on this notice may be submitted in writing to the address
identified at the beginning of this rulemaking by July 1, 1996.
Comments received by that date will be considered in the development of
any proposed rule.
Executive Order 12866
This advance notice of proposed rulemaking has been reviewed by the
Office of Management and Budget under Executive Order 12866.
Drafting Information
This Notice was drafted by the Office of the Solicitor, 1849 C
Street, N.W., Washington, D.C., 20240.
Dated: April 30, 1996.
Ada E. Deer,
Assistant Secretary, Indian Affairs.
[FR Doc. 96-11287 Filed 5-9-96; 8:45 am]
BILLING CODE 4210-02-P
Complete official Federal Register PDF
FR Doc. 96-11213 Endangered and Threatened Wildlife and Plants; Proposed Special Rule for the Conservation of the Northern Spotted Owl on Non-Federal Lands
[Federal Register Volume 61, Number 92 (Friday, May 10, 1996)]
[Proposed Rules]
[Pages 21426-21430]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11213]
=======================================================================
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AD20
Endangered and Threatened Wildlife and Plants; Proposed Special
Rule for the Conservation of the Northern Spotted Owl on Non-Federal
Lands
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed special rule; additional information.
-----------------------------------------------------------------------
SUMMARY: On February 23, 1996, the Service issued a Draft Environmental
Alternatives Analysis (EAA) for the proposed special section 4(d)rule
for the conservation of the northern spotted owl on non-Federal lands
in California and Washington. The proposed special rule was published
in the Federal Register on February 17, 1995 (60 FR 9484). The comment
period for the draft EAA and the proposed rule was recently extended,
(61 FR 15452, April 8, 1996) and is scheduled to end for both documents
on June 3, 1996.
The comment period was extended, in part, to allow the public the
opportunity to review a proposal by the State of Washington Forest
Practices Board that would address impacts of forest practices to the
northern spotted owl. The state has asked the Service to consider their
proposed state rule as a possible alternative to the current special
rule proposed by the Service. The Service seeks additional comments
from the interested public, agencies, and interest groups on the Draft
EAA, the proposed special rule, and on the State of Washington's
proposed state rule as a possible alternative to the rule currently
proposed by the Fish and Wildlife. The purpose of this document is to
provide a summary of Washington's proposed rule, and a comparison of
that rule with the Service's proposed special rule.
DATES: The comment period for written comments closes June 3, 1996.
ADDRESSES: Comments and materials concerning the Draft Environmental
Alternatives Analysis, the proposed rule and the potential use of the
Washington Forest Practices Board proposed rule as an additional
alternative should be sent to Mr. Michael J. Spear, Regional Director,
Region 1, U.S. Fish and Wildlife Service, 911 N.E. 11th Avenue,
Portland, Oregon 97232-4181. The complete file for this proposed rule
will be available for public inspection, by appointment during normal
business hours, at the U.S. Fish and Wildlife Service, Office of
Technical Support for Forest Resources, 333 S.W. 1st Avenue, 4th Floor,
Portland, Oregon 97204, (503/326-6218).
FOR FURTHER INFORMATION CONTACT: Mr. Curt Smitch, Assistant Regional
Director, Region 1, U.S. Fish and Wildlife Service, 3704 Griffin Lane
S.E., Suite 102, Olympia, Washington 98501, (206/534-9330); or Ron
Crete, Office of Technical Support for Forest Resources, 333 S.W. 1st
Avenue, Portland, Oregon 97232-4181, (503/326-6218).
SUPPLEMENTARY INFORMATION: The Service published its proposed rule
under section 4(d) of the Endangered Species Act on February 17, 1995
(60 FR 9484), followed by the release of the draft Environmental
Alternatives Analysis (EAA) which describes and analyzes the potential
environmental effects of the proposed special rule and six alternatives
for the conservation of the northern spotted owl on non-Federal lands
in Washington and California.
The State of Washington's Forest Practices Board (Board) began work
in 1993 to develop a rule to address the impacts of forest practices on
northern spotted owls in that state. Following the publication of the
Service's proposed rule, the Board accelerated work on the current
version of the proposed state rule. The northern spotted owl is listed
as endangered by the Washington Fish and Wildlife Commission. The
state's proposed rule is similar in many ways to the Service's proposed
4(d) rule, although there are some differences. The state has asked the
Service to consider the state's proposed rule as an alternative to the
Service's current proposed rule.
The rule proposed by the Washington Forest Practices Board would
classify forest practices in spotted owl habitat as ``Class IV-
Special''. Class IV-Special designation includes forest practices
within critical wildlife habitats (state) of species listed as
threatened or endangered under either the Federal Endangered Species
Act or state law, and requires that certain forest practices proposed
to occur in these habitat areas be evaluated relative to their
potential to have substantial impacts to the environment. Such forest
practices may include timber harvesting, road construction and aerial
spraying of pesticides, and are subject to environmental review under
the State Environmental Policy Act (SEPA).
A review under SEPA involves a detailed analysis of a proposed
action to determine if it will have a significant impact on the
environment. Should a finding of significance be made, then an
Environmental Impact Statement (EIS)
[[Page 21427]]
must be prepared before the Department of Natural Resources (DNR) can
act on a forest practice application. Under SEPA, the forest practice
may be conditioned or denied, if necessary, to mitigate specific
adverse environmental impacts.
The Board's goal in developing its proposed rule was to ``prepare a
rule that captures all forest practices that have potential for a
substantial adverse impact on the environment. In the case of the owl,
any forest practice that damages the long-term viability of the
northern spotted owl in Washington State (WDNR 1996).'' The Board also
adopted five objectives to support the proposed rule (WDNR 1996):
(1) Define a level of [owl conservation] contribution from
nonfederal lands that is essential to complement the federal recovery
and conservation strategy for the northern spotted owl population in
Washington State.
(2) Identify those landscapes that are essential to complement the
federal conservation and recovery strategy. Identify whether their
primary function is for dispersal or population maintenance.
(3) Maximize the use of local planning to promote flexibility. To
do this, provide as specific criteria as possible for different levels
of planning.
(4) Minimize conflicts between federal and state standards.
(5) Minimize economic impacts.
Generally, the Board's proposed rule involves ten spotted owl
special emphasis areas (SOSEAs) that are made up of all or parts of 13
landscapes identified in the Spotted Owl Scientific Advisory Group
(SAG) Report (Hanson et al. 1993). The proposed state rule assigns
specific owl conservation functions or goals to the SOSEAs, includes a
small parcel exemption, disturbance restrictions, and provides
provisions for optional landowner conservation planning. Within the
SOSEAs, areas are designated for either dispersal or demographic
support, or a combination of both. Figure 1 shows the location of the
SOSEAs.
Within all the SOSEAs, except the one for the Entiat area, the
proposed state rule would designate harvesting, road construction or
aerial application of pesticides on suitable spotted owl habitat inside
owl nesting circles (site centers) with less than specified amounts of
suitable habitat as Class IV-Special activities, triggering a review
under SEPA. Within the Entiat SOSEA, the SEPA trigger would only apply
on suitable habitat inside owl circles and inside the areas designated
for demographic support. The specified amounts of suitable habitat
include 5,863 acres within a 2.7 mile circle for the Hoh- Clearwater/
Coastal Link SOSEA, and 2,605 acres within a 1.8 mile circle for all
other SOSEAs.
Both inside and outside SOSEAs, harvesting, road construction or
aerial application of pesticides between March 1 and August 31, on the
70 acres of highest quality suitable owl habitat surrounding the site
center, would be Class IV-Special actions.
The proposed state rule provides several exemptions to the SEPA
trigger within the SOSEAs: an approved landowner option plan (LOP); an
approved habitat conservation plan (HCP) from the Fish and Wildlife
Service; pre-listing agreements or habitat management plan accompanied
by a ``no-take'' letter from the Fish and Wildlife Service; and the
provisions of a final 4(d) rule adopted by the Fish and Wildlife
Service. A small parcel exemption is provided if a landowner owns 500
acres or less within the SOSEA and the proposed forest practice is not
within 0.7 mile of a northern spotted owl site center.
The planning components of the proposed state rule include the LOP
and the cooperative habitat enhancement agreement (CHEA). The details
of the LOP process have not been finalized, and may be added to the
rule at a later date. The CHEA option is available to landowners not
currently impacted by owls, and is intended to preclude early
harvesting based on fear of regulatory impact and to provide additional
owl habitat. Under the provisions of Washington's proposed rule, if
habitat is allowed to be harvested within an owl circle through one of
the planning options (LOP, CHEA or HCP), the harvested habitat will
continue to be counted in the calculation of suitable habitat from the
date of plan approval and forward, even after harvest has occurred. The
state's intent with this provision is to prevent the transfer of
responsibility for maintenance of habitat from one landowner within an
owl circle to another.
This state proposal also includes disturbance restrictions inside
SOSEAs during nesting season that apply within .25 mile of a site
center between March 1 and August 31, unless affected owls are not
actively nesting.
It is important to note that the Service's proposed special 4(d)
rule is based on avoidance of incidental take prohibitions for the owl.
The State's proposed rule is based on the avoidance of triggering the
requirements of a review under Washington's SEPA rather than on
avoidance of incidental take prohibitions.
A tabular comparison of the Washington proposed rule and the
Service's proposed 4(d) rule is provided in Table 1.
Table 1
----------------------------------------------------------------------------------------------------------------
Rule provision Washington proposed rule Service proposed rule
----------------------------------------------------------------------------------------------------------------
1. Landscapes......................... 10 SOSEAs: Columbia Gorge*......... 6 SEAs: Columbia River Gorge/White
Salmon.
Entiat *........................... (Not proposed).
(Special SEPA trigger)
Finney Block....................... Finney Block.
I-90 West.......................... I-90 Corridor (includes I-90E, I-
I-90 East* (includes Teanaway, 90W, Taneum, Easton, Blewett).
Taneum, Easton)
Mineral Block/Link................. Mineral Block (includes Mineral
Link).
Siouxon*........................... Siouxon Creek (included in other
White Salmon * SEA) (included in other SEA).
North Blewett
Hoh-Clearwater/Coastal Link........ Hoh-Clearwater.
* Means modified from original SAG SEAs may provide dispersal,
boundaries. demographic or combination
Note: SOSEA goals/functions are support, to be decided on a case
identified on Figure 1 by case basis, except in areas
surrounded by or located in matrix
or AMA lands, except if sites are
centered on reserve or withdrawn
areas.
2. Owl Circle Dimensions:
[[Page 21428]]
Inside SOSEAs..................... All SOSEAs: All habitats within 0.7 Dimensions are discussed in the
miles/1,000 acres retained. preamble to the proposed 4(d) rule
and the DEAA.
Hoh-Clearwater SOSEA: 5,863 acres Median annual home range,
of suitable owl habitat within approximately the same size as
median owl home range circle (2.7 state proposal.
mile radius) must be retained.
At least 40 percent suitable owl
habitat within owl median home
range must be retained.
All other SOSEAs: 2,605 acres of
suitable owl habitat within median
owl home range circle (1.8 mile
radius) must be retained
Outside SOSEAs.................... The 70 acres highest quality The 70 acres of highest quality
habitat around the site center habitat closest to an owl site
must be retained from March 1 center must be retained.
through Aug. 31.
3. SEPA Trigger:
Within Important Landscapes....... Within SOSEA boundaries harvesting, Federal permit requirement, no NEPA
road construction or aerial trigger exists.
application of pesticides on
suitable habitat inside owl
circles (except within the Entiat
SOSEA where the trigger applies
only on suitable habitat inside
owl circles and inside the areas
indicated for demographic
support.).
Outside Important Landscapes...... Outside of a SOSEA: harvesting,
road construction, or aerial
application of pesticides between
March 1 and August 31, on the 70
acres of highest quality suitable
habitat
Exemptions to SEPA................ --Under an approved Landowner
Option Plan
--HCP approved by USFWS
--Prelisting agreements or habitat
management plan accompanied by a
``no-take'' letter from the USFWS
--4(d) rule adopted by the USFWS
--Small parcel exemption
4. Prohibited Activities:
Within Important Landscapes....... The SEPA triggers in the state Under the ESA, ``incidental take''
proposal require SEPA review, they is generally prohibited and is
do not prohibit activities. only allowed under limited
circumstances.
Timber harvest activities are
prohibited in SEAs if they result
in the incidental take of a
spotted owl (a significant
likelihood if suitable habitat
drops below 40 percent within the
median annual owl home range.)
Alternative proscription allows
harvesting on non-Federal lands
surrounded by or located in
Federal matrix or AMA lands if the
Federal matrix or AMA
prescriptions and restrictions are
followed.
Outside Important Landscapes...... (No equivalent).................... Timber harvest actions are
prohibited if they result in
retention of less than 70 acres of
highest quality suitable habitat
closest to the site center or
impact the sites centered inside
Federal Reserves, Administratively
withdrawn lands or Congressionally
reserved lands (no seasonal
restrictions).
Incidental take of owls is not
authorized for owls whose site
center is located within or along
the boundary of a Federal reserve
or Administratively withdrawn
lands or Congressionally reserved
lands (except on the Olympic
Peninsula), or along or within the
boundary of an SEA.
Exemptions to Prohibitions........ (No equivalent).................... Harvest is allowed:
--With an approved HCP;
--With an approved Local Option
Plan;
--With a Spotted Owl Habitat
Enhancement Agreement.
5. Planning Components Needed to Establishes a process for the Habitat Conservation Plan (HCP)
Authorize Incidental Take:. development of the Landowner required for owners of more than
Option Plan (LOP):. 5,000 acres. HCPs must include:
--Description of area;
--Identifies elements that are to
be included in a LOP:
--Goals and objectives
--Planning area description
--Physical features
--Current spotted owl habitat
status
--Current owl status
--Management proposals and
operation plans
--Projected spotted owl habitats
--Training
--Monitoring
--Reporting
[[Page 21429]]
--Plan modification
--Plan duration
--Approval process
--Enforcement process
(No equivalent).................... Proposes a Local Option
Conservation Plan (Short-Form HCP)
for Owners of 80-5,000 acres.
Basic criteria generally same as
for regular HCP although the
application process will be
streamlined.
Establishes a process for the Proposes similar Habitat
development of Cooperative Habitat Enhancement Agreement process.
Enhancement Agreements.
Identified elements:
--Description of agreement area
--Current owl habitat status
--Management proposals
--Projected habitat development
--Agreement modification
--Agreement duration
--Approval process
--Enforcement process
Agreement to be approved by DNR in
consultation with Washington
Department of Fish and Wildlife,
others..
6. Disturbance........................ Road construction within SOSEA (No equivalent proposal).
boundary restricted within .25
miles of site center between March
1 and August 31, unless owls are
not actively nesting.
Felling and bucking within SOSEA
boundary restricted within .25
miles of site center between March
1 and August 31, unless owls are
not actively nesting.
Cable yarding within a SOSEA
boundary restricted within .25
miles of site center between March
1 and August 31, unless owls are
not actively nesting..
Helicopter yarding within SOSEA
boundary restricted within .25
miles of site center between March
1 and August 31, unless the owls
are not actively nesting..
Tractor and wheel skidding systems
operations of heavy equipment
within a SOSEA boundary restricted
within .25 miles of site center
between March 1 and August 31,
unless the owls are not actively
nesting..
Slash disposal or prescribed
burning within a SOSEA boundary
restricted within .25 miles of
site center between March 1 and
August 31, unless the owls are not
actively nesting..
7. Small Landowner Exemption.......... Provides for small parcel Owners of not more than 80 acres of
exemption:. forest land not restricted as long
--If a landowner owns or controls as harvest does not destroy or
500 acres or less within the degrade the 70 acres of suitable
SOSEA; and habitat closest to the owl site
--The forest practice is not within center.
.7 mile of a site center
----------------------------------------------------------------------------------------------------------------
The Service is in the process of analyzing the state's proposed
rule as a possible alternative to the Service's proposed 4(d) rule
published February 17, 1995. The state's comment period for their
proposed rule has expired, however, the Service is interested in
receiving comment from the interested public regarding the advisability
of adapting some or all of the Washington state rule in any final 4(d)
rule that the Service may publish. To receive an actual copy of the
State of Washington proposed rule and the state's Supplemental Draft
Environmental Impact Statement, write to Washington State Department of
Natural Resources, Forest Practices Division, P.O. Box 47012, Olympia,
WA 98504-7012, Attn: Judith Holter.
The Service's Draft EAA, including all maps, tables, charts, and
graphs, remains available on the Internet's World Wide Web at http://
www.r1.fws.gov/4deaa/welcome.html.
References Cited
Hanson, E., Hays, D., Hicks, L., Young, L., and J. Buchanan. 1993.
Spotted owl habitat in Washington: a report to the Washington Forest
Practices Board. Washington Forest Practices Board Spotted Owl
Advisory Group. Olympia, Washington.
WDNR. 1996. Supplemental draft environmental impact statement and
appendices on forest practices rule proposals for the northern
spotted owl. Washington Forest Practices Board, Washington
Department of Natural Resources. Olympia, Washington.
Dated: April 30, 1996.
Thomas Dwyer,
Acting Regional Director, U.S. Fish and Wildlife Service Region 1,
Portland, Oregon.
BILLING CODE 4310-55-P
[[Page 21430]]
[GRAPHIC] [TIFF OMITTED] TP10MY96.079
[FR Doc. 96-11213 Filed 5-9-96; 8:45 am]
BILLING CODE 4310-55-C
Complete official Federal Register PDF
FR Doc. 96-10692 Capacity Reservation Open Access Transmission Tariffs
[Federal Register Volume 61, Number 92 (Friday, May 10, 1996)]
[Proposed Rules]
[Pages 21847-21854]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10692]
Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Proposed
Rules
[[Page 21847]]
DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Part 35
[Docket No. RM96-11-000]
Capacity Reservation Open Access Transmission Tariffs
April 24, 1996.
AGENCY: Federal Energy Regulatory Commission, DOE.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Federal Energy Regulatory Commission (Commission) is
proposing a rule that specifies filing requirements to be followed by
public utilities in making transmission tariff filings based on
capacity reservations for all transmission users. The proposed capacity
reservation open access transmission tariff, if adopted, would replace
the open access transmission tariff required by the Commission in
Promoting Wholesale Competition Through Open Access Non-discriminatory
Transmission Services by Public Utilities; Recovery of Stranded Costs
by Public Utilities and Transmitting Utilities, Order No. 888, FERC
Stats. & Regs. para. 31,036 (1996). The Commission is seeking public
comment on whether to require this type of tariff for all public
utilities that must comply with the Commission's open access
requirements, and on the specific provisions that should be contained
in a capacity reservation tariff. The Commission will convene a
technical conference on these issues.
DATES: Written comments must be received by the Commission by August 1,
1996. The Commission also will convene a technical conference to be
held over two days in September 1996 at the Commission, 888 First
Street NE., Washington, D.C. 20426. The Commission will announce the
dates, time, and agenda of the technical conference at a later date.
FOR FURTHER INFORMATION CONTACT:
Jan Macpherson (Legal Information), Office of the General Counsel,
Federal Energy Regulatory Commission, 888 First Street NE., Washington,
D.C. 20426, Telephone: (202) 208-0921
Roland W. Wentworth (Technical Information), Office of Economic Policy,
Federal Energy Regulatory Commission, 888 First Street NE., Washington,
D.C. 10426, Telephone: (202) 208-1288.
ADDRESSES: Send comments to: Office of the Secretary, Federal Energy
Regulatory Commission, 888 First Street NE., Washington, D.C. 20426.
SUPPLEMENTARY INFORMATION: In addition to publishing the full text of
this document in the Federal Register, the Commission also provides all
interested persons an opportunity to inspect or copy the contents of
this document during normal business hours in the Public Reference Room
at 888 First Street NE., Washington, D.C. 20426.
The Commission Issuance Posting System (CIPS), an electronic
bulletin board service, provides access to the texts of formal
documents issued by the Commission. CIPS is available at no charge to
the user and may be accessed using a personal computer with a modem by
dialing 202-208-1997 if dialing locally or 1-800-856-3520 if dialing
long distance. CIPS is also available through the Fed World system (by
modem or Internet). To access CIPS, set your communications software to
19200, 14400, 12000, 9600, 7200, 4800, 2400, or 1200 bps, full duplex,
no parity, 8 data bits and 1 stop bit. The full text of this order will
be available on CIPS indefinitely in ASCII and WordPerfect 5.1 format.
The complete text on diskette in WordPerfect format may also be
purchased from the Commission's copy contractor, La Dorn Systems
Corporation, also located in the Public Reference Room at 888 First
Street NE., Washington, D.C. 20426.
I. Introduction
The Federal Energy Regulatory Commission (Commission) is today
adopting a final rule (Open Access Final Rule) 1 requiring each
public utility that owns, operates or controls facilities used for the
transmission of electric energy in interstate commerce to file an open
access non-discriminatory transmission tariff (Final Rule tariff). The
Open Access Final Rule also requires these utilities to take
transmission service for their own wholesale sales and purchases of
electric energy under this tariff. The Final Rule tariff specifies that
service is to be provided on both a network basis and a flexible point-
to-point basis; the network service is a load-based service, while the
point-to-point service is based on transmission capacity reservations.
---------------------------------------------------------------------------
\1\ Promoting Wholesale Competition Through Open Access Non-
discriminatory Transmission Services by Public Utilities, Docket No.
RM95-8-000, Order No. 888, FERC Stats. & Regs. para. 31,036 (1996).
The Open Access Final Rule is being published concurrently in the
Federal Register.
---------------------------------------------------------------------------
This Notice of Proposed Rulemaking (``NOPR'') requests comment on
whether there are certain disadvantages inherent in offering
transmission service on both a network and a point-to-point basis. If
so, the Commission requests comment on whether comparability of
transmission service can be better accomplished by requiring that
transmission service be rendered using a single methodology. In
particular, the Commission requests comment on the capacity reservation
tariff (``CRT'') approach described herein. The Commission also
requests comment on whether there are other methodologies that can
fulfill the policy goals served by a single capacity allocation
methodology as well as, or better than, the proposed CRT approach.
The proposed CRT approach would be based on the point-to-point
service in the Final Rule tariff and would allow all transmission
customers to have the same degree of flexibility in reserving and using
transmission service. This NOPR proposes that no later than December
31, 1997, the Open Access Final Rule's network and point-to-point
tariff be replaced by a CRT that provides only reservation-based
transmission service for all jurisdictional service.
The Commission will hold a technical conference on this proposal
prior to adopting a final rule.
II. Public Reporting Burden
The proposed rule specifies filing requirements to be followed by
public utilities in making tariff filings that reflect transmission
capacity reservations for all wholesale transmission customers and any
unbundled retail transmission customers and would replace the open
access transmission tariffs required by the Commission in the Open
Access Final Rule. The information collection requirements of the
proposed rule are attributable to FERC-516 ``Electric Rate Schedule
Filings.'' The current total annual reporting burden for FERC-516 is
828,300 hours.
The proposed rule requires public utilities filing capacity
reservation transmission tariffs to provide certain information to the
Commission. The public reporting burden for the information collection
requirements contained in the proposed rule is estimated to average 250
hours per response. This estimate includes time for reviewing the
requirements of the Commission's regulations, searching existing data
sources, gathering and maintaining the necessary data, completing and
reviewing the collection of information, and filing the required
information.
There are approximately 328 public utilities, including marketers
and wholesale generation entities. The Commission estimates that
approximately 166 of these entities own, operate, or control facilities
used for the
[[Page 21848]]
transmission of electric energy in interstate commerce and will respond
to the information collection. The respondents would be the same as
those for the Open Access Final Rule, i.e., all public utilities
required to file non-discriminatory open access tariffs. Accordingly,
the public reporting burden is estimated to be 41,000 hours.
Interested persons may send comments regarding the burden estimates
or other aspects of this collection of information, including
suggestions for reducing this burden, to the Federal Energy Regulatory
Commission, 888 First Street NE., Washington, DC 20426 [Attention:
Michael Miller, (202) 208-1415], and to the Office of Information and
Regulatory Affairs of the Office of Management and Budget, Washington,
DC 20503 (Attention: Desk Officer for the Federal Energy Regulatory
Commission (202) 395-3087).
III. Background
In the Open Access Final Rule, the Commission has adopted a pro
forma tariff containing the minimum acceptable terms and conditions of
transmission service for network service and for flexible point-to-
point service. This type of tariff, in conjunction with other
requirements imposed in the Open Access Final Rule and in the related
final rule in Open Access Same-Time Information System,2 is
sufficient to remedy undue discrimination in the provision of
transmission services. However, in analyzing the comments in the Open
Access proceeding, it became apparent that a single service open access
tariff might better accommodate competitive changes occurring in the
industry while ensuring that all interstate transmission service
subject to the Commission's jurisdiction is provided in a fair and non-
discriminatory manner.
---------------------------------------------------------------------------
\2\ Open Access Same-Time Information System (formerly Real-Time
Information Networks) and Standards of Conduct, Docket No. RM95-9-
000, Order No. 889, FERC Stats. & Regs. para. 31,037 (1996) (OASIS
Final Rule). This rule also is being published concurrently in the
Federal Register.
---------------------------------------------------------------------------
Network transmission service, in the Open Access Final Rule,
defines rights and sets prices based on customer load. It allows the
transmission customer to use the transmission provider's entire grid to
serve designated loads from designated resources without having to pay
a separate charge for each pairing of resource and load. Thus, network
service enables the transmission customer to use the network flexibly
to integrate its resources and loads efficiently and to dispatch
economically its system, in the same way as the owner of the
transmission system.
Firm flexible point-to-point service in the Open Access Final Rule,
on the other hand, defines rights and sets prices based on transmission
capacity reservations. The transmission user designates points of
delivery (PODs) and points of receipt (PORs) and makes a capacity
reservation for each POD and for each POR. Consistent with the
comparability principle that is one of the cornerstones of the Open
Access Final Rule, firm point-to-point transmission service provided to
a customer must be comparable to that which the utility provides to
itself. For example, the customer should be able to use any available
unreserved service without an additional charge, as long as the use
does not exceed its capacity reservation.
The Commission proposes to replace the network and point-to-point
services in the Open Access Final Rule tariff with a CRT that would
accommodate both network and point-to-point needs. The CRT would be
based on the point-to-point service in the Final Rule tariff and would
allow all jurisdictional transmission customers to have the same degree
of flexibility in reserving and using transmission service. Under the
CRT, all transmission customers would specify the amount of power to be
received and delivered at multiple receipt and delivery points, and
would have substantial flexibility in rearranging these receipt and
delivery points. All nominations for capacity reservations would be
evaluated in the same manner.3
---------------------------------------------------------------------------
\3\ A ``nomination'' is a request; a ``reservation'' is a
confirmed nomination that can be held or traded.
---------------------------------------------------------------------------
IV. Reasons for Proposing a CRT
In adopting the Final Rule tariff in the Open Access Final Rule,
our purpose was to remedy undue discrimination in the provision of
interstate transmission service, not to reform traditional tariff
design. We believe that the Final Rule tariff, in conjunction with the
OASIS Final Rule, remedies undue discrimination in transmission
service. The network section of the Final Rule tariff is based on the
prevailing industry practice of traditional load-ratio pricing.
Many commenters responded to our initial proposed open access pro
forma tariffs by asking us to adopt either more flexible or more
innovative tariffs in the Open Access Final Rule. Some commenters
suggested that the basic design of the Open Access NOPR pro forma
tariffs may be too inflexible to accommodate industry innovations. The
capacity reservation tariff proposed here is an alternative that may
better suit the needs of the changing electric power industry.
The Final Rule tariff offers two types of transmission service.
Network service provides enough transmission capacity to satisfy a
customer's consumption of electric power. Point-to-point service sets
aside as much transmission capacity as the customer reserves. Thus,
network service is based on use, and point-to-point service is based on
reservations.
Network customers get and pay for the capacity they use, and point-
to-point customers get and pay for the capacity they reserve. The fixed
costs of the transmission system are allocated among network customers
on the basis of use, that is, the customers' loads. The fixed costs of
the transmission system are allocated among point-to-point customers on
the basis of their reservations, that is, their contract demands.
Offering two types of service in one tariff may have disadvantages.
At the end of this NOPR we ask questions about whether this is so. If
it is, a solution may be to put all jurisdictional transmission users
on the same basis: The transmission provider would serve and charge all
customers (including its own jurisdictional uses of the system) on the
basis of how much transmission capacity they either use or ask for.
That is, it would make the entire tariff either load-based or
reservation-based. If we do reform the tariff to put all transmission
users on the same basis, we believe that, for the reasons set out next,
putting all on a reservation basis may be more consistent with the
industry's direction in its competitive restructuring. We seek comment
on whether this premise concerning reservation-based service is in fact
correct.
First, reservation-based service appears to be more compatible with
our new OASIS and the requirement that market participants know how
much transmission is available for their use. In the OASIS Final Rule,
we require public utilities to post electronically their available
transmission capability, or ATC. They must do this by calculating total
transmission capability and subtracting transmission capacity committed
to other uses. It is relatively easy to subtract point-to-point service
reservations, but there is no amount of transmission capacity
explicitly reserved for network customers or for the transmission
provider's own network uses.
The transmission provider is committed to having available enough
transmission capacity to serve its native
[[Page 21849]]
load and the loads of its network customers. But the transmission
provider knows only the customers' historical loads, not their future
loads. Although the customers (as well as the transmission provider
itself) must forecast their loads, they may have no incentive to
forecast accurately because the utility must meet all transmission
needs for serving load regardless of the forecast. This requires the
transmission provider to predict its future native load and that of
each of its network customers in order to determine its ATC.
While this process can work reasonably well in a regime in which
utilities make bundled generation and transmission sales to
requirements customers, it may not work as well now that various kinds
of power sellers and marketers are eligible for unbundled network
service. The transmission provider may not have any good way to
forecast the increases or decreases in the loads of customers that it
has no obligation to serve. It seems appropriate to ask all
transmission customers, including the transmission provider, to state
explicitly how much transmission capacity they want set aside for their
needs. In this way, they effectively would be making a capacity
reservation. This would simplify the transmission provider's
determination of ATC and make the information available on the OASIS.
Under a CRT approach, each transmission customer (including the
transmission provider for its own uses) would have to state its
transmission capacity needs, as in the current point-to-point tariff.
The requirement that reservations be stated in order to be subtracted
from total transmission capability would ensure that all customers are
treated comparably without the transmission provider having to make
forecasts only for some.
On the other hand, an argument can be made that the CRT approach
may lead to an understatement of ATC. For example, in reserving
transmission service, customers might base such reservations on an
estimate of their maximum non-coincident peak (``NCP'') load. This
conceivably could result in an understatement of ATC, because the
diversity of customer loads at the time of the system peak would no
longer be a relevant factor in determining ATC. The Commission requests
comment on whether in practice this would be a problem and, if so,
whether it can be remedied.
Second, a reservation-based tariff would put all jurisdictional
transmission customers, including the transmission provider for its own
jurisdictional uses, on the same basis. All customers would not only
have to reserve transmission capacity but also would have to pay for
the transmission capacity that they reserve.
It may be disadvantageous to have different bases for the pricing
of two services in a tariff. For example, suppose a transmission
provider has two nearly identical transmission customers. Each has a
load of 50 MW, and each thinks its load next year could be as little as
40 MW or as much as 60 MW. However, one takes network service, and the
other takes 60 MW of point-to-point service. Suppose these are the only
customers on the system and they have coincident peak loads; if each
actually uses 60 MW next year, each pays half the cost of the
transmission system. But if each uses 40 MW, the point-to-point
customer pays 60 percent of the cost 4 while the network customer
pays only 40 percent.
---------------------------------------------------------------------------
\4\ This is based on a 60-MW reservation divided by the sum of
the network loads and the capacity reservations at the time of
system peak.
---------------------------------------------------------------------------
Customers also may attempt to exploit to their advantage the
different terms and conditions of the two services. As commenters in
the Open Access proceeding pointed out, the many differences between
capacity reservation-based (point-to-point) and load-based (network)
services mean that transmission customers are treated differently.
Having two services in a tariff may create an incentive for a customer
to switch back and forth from one service to another in a way that may
allow it to avoid paying a fair share of system costs. This would not
be the case if all customers are served under a reservation-based (or
load-based) tariff.
Third, a reservation-based approach may be a better basis for
accommodating electric industry innovations and pricing reforms. The
industry is in a period of rapid change, and many ideas are being
considered for independent system operators (ISOs), regional
transmission groups, regional power exchanges, generation divestiture,
distribution company spin-offs, unified regional transmission
ownership, regional transmission tariffs, megawatt-mile transmission
pricing, marginal cost pricing, and congestion pricing, among other
innovations. Innovations are being considered or implemented in such
places as California, the Midwest, the large eastern power pools, and
other places. Most proposals assume that all jurisdictional users of
the transmission system will be treated alike.
Many commenters in the Open Access proceeding raised concerns that
our pro forma tariffs with two separate services, one based on load and
another based on capacity reservation, may be an obstacle to putting
all transmission customers on the same basis and hence an obstacle to
innovation. For example, the Commission would need to make special
tariff accommodations to permit California public utilities to carry
out the reforms mandated by the California Public Utilities Commission
for an ISO, a regional power exchange, and congestion pricing. Although
we have indicated that we are prepared to accept other tariff designs
that further the goal of fostering robust competition in the bulk power
market, the number of parties concerned with the traditional nature of
our tariff suggests that our tariff may inhibit other parties from
considering innovative industry structures and pricing policies.
This NOPR, among other things, indicates that the Commission is not
committed to traditional tariff design. Further, it proposes a tariff
design that supports calculation of ATC and treats all jurisdictional
transmission users alike. We believe that the proposed CRT concept
would provide a flexible base on which industry participants can build
a variety of innovative tariff designs. We expect the CRT concept to be
more compatible with various ISO and power pool pricing proposals than
the traditional Open Access Final Rule tariff. We ask for comment on
whether this is so. In addition, we request comment on whether there
are other transmission capacity allocation methodologies (for instance,
an ``all network service'' methodology) that, when compared to the two-
service approach in the Final Rule, are more compatible with proposed
and contemplated marketplace innovations.
In particular, we expect that a CRT would provide a better basis
for regional flow-based transmission pricing. In the comments we
received in the Open Access proceeding, a large number of industry
participants stressed that the Commission should not codify contract
path pricing in its Final Rule. As we explain more fully in the Open
Access Final Rule, they were concerned that the proposed pro forma
tariffs would codify the contract path approach to pricing. We explain
in the Open Access Final Rule that this is not our intention; we
continue to encourage the industry to explore solutions to regional
loop flow problems through innovative regional flow-based pricing
proposals.
It is unlikely that an efficient tariff for a large region would
allocate some transmission costs on the basis of various subregional
loads and other costs on the basis of capacity reserved over various
multipath interfaces within
[[Page 21850]]
the region. Most regional tariff proposals would allocate costs on the
latter basis alone, recognizing, of course, that the configuration of
regional loads is a starting point for any load flow study. For this
reason, we believe that the proposed CRT approach to tariff design may
be more compatible with the intent of some in the industry to move to
flow-based pricing than a tariff that combines services based on usage
and reservations. We ask for comments on whether this is the case. In
addition, we ask for comment on whether there are other non-CRT
approaches that may be more compatible with flow-based pricing.
Fourth, as discussed in the Open Access Final Rule, load-based
network service generally cannot be resold. This reduces the amount of
transmission products and services that can enter the secondary market.
As a result, the secondary market could be thinner and less effective
as a risk management tool for market participants. In addition,
independent generators and marketers could be hampered in making
efficiency-enhancing transactions that do not involve a load-serving
entity, such as trading power between generators in different market
centers. The Commission seeks comments on whether a capacity
reservation service or some other alternative to the two-service
approach in the Final Rule would better allow market participants to
freely make efficient deals that involve combining transmission
entitlements with power products in new and creative ways.
Fifth, we believe that additional comments should be received on
whether the goal of unbundling transmission and generation services can
be fully achieved under load-based network service. It would appear
that transmission service would be fully unbundled from generation
service under a CRT because the generation and transmission products
are reserved and used independently. For example, reservations for
flexible grid use, including interface capacity, could be held
independently of load. In addition, generation resources and load would
not need to be designated as under the network service; a transmission
customer would have to pay for the capacity it reserved at PODs and
PORs, but it would not have to designate any resources or loads.
Sixth, a capacity reservation approach may facilitate transmission
planning. Under a CRT, all wholesale transmission users and unbundled
retail transmission customers would be required to specify and pay for
all of their transmission needs, including capacity needed for
contingencies. The costs of contingency margins needed by only some
users would not be allocated to all users of the grid. A CRT would
allow each customer flexibility in managing its own risk, e.g., a
customer could factor reasonable reserve margins into its reservation
for contingencies. This approach may be consistent with some innovative
proposals that seek to accommodate customer-driven transmission
expansion, in addition to traditional utility-planned transmission
expansion.
Finally, some commenters in the Open Access proceeding encouraged
us to treat the retail function of a public utility transmission
provider as a separate wholesale customer for purposes of the
transmission tariff. While we do not require this in the Open Access
Final Rule, we propose here that the transmission used on behalf of the
transmission provider's bundled retail native load be nominated and
reserved in the same way as all other transmission service.5
Requiring the same reservation system for all transmission capacity
needs would help to assure that all uses of the transmission system are
treated in a comparable, non-discriminatory manner. We seek comment on
whether the retail function of a public utility transmission provider
should be treated as a separate wholesale customer for purposes of the
CRT tariff.
---------------------------------------------------------------------------
\5\ As discussed below, this is not the same as requiring
bundled retail customers to take service under the CRT.
---------------------------------------------------------------------------
V. Capacity Reservation Service
A. Discussion
The Commission's CRT proposal is as follows. Each public utility
subject to the Open Access Final Rule would be required to file a CRT
no later than December 31, 1997. Under the CRT, which would replace
existing transmission tariffs, all firm transmission users, including
the transmission owner on behalf of its wholesale requirements and
bundled retail customers, would nominate and reserve transmission
capacity; they would nominate and reserve firm rights to receive
specific amounts of power at specific grid PORs and to deliver specific
amounts of power at specific grid PODs. PORs could include
interconnections with other systems or generator bus bars. PODs could
include interconnections with other systems or substations where the
transmission provider's transmission and distribution systems are
connected. Reservation holders could flexibly schedule power among some
or all of their PORs and PODs within their reservation limits and could
reassign their reservations. Thus, capacity reservation service could
be used both for point-to-point types of transactions and in a network
manner (integration of a set of generating resources with a dispersed
load).
The capacity reservation approach would be based on the flexible
point-to-point service in the Open Access Final Rule. A customer could
specify a single POR and a single POD, or it could reserve service from
multiple PORs to multiple PODs. The transmission provider would set
aside sufficient transmission capacity to satisfy its firm reservation
needs for any potential combinations of power receipts and deliveries
among the designated receipt and delivery points.
An entity with dispersed generation and load could use CRT service
to dispatch its generation economically within its capacity
reservation. When one generating unit is ramped down, the customer
could ramp up another generating unit located at another designated
receipt point. The flexibility to serve load when the transmission
customer is using less than its capacity reservation would be the same
as under Final Rule network service. CRT service could also be used for
simple point-to-point transactions if the customer does not want or
need much flexibility.
Under a CRT, a customer also could have the flexibility to
rearrange, or modify, its firm reservation to deal with unforeseen
circumstances. Such a rearrangement could be accomplished as long as
the customer's capacity reservation is not exceeded and firm
transmission capacity is available. The flexibility of the proposed CRT
service would not be unlimited, however. For example, a transmission
customer might have very little flexibility to modify its reservation
on a firm basis to accommodate an unanticipated dispatch pattern when
the grid is operating at or close to capacity. Under such conditions,
modifications likely would infringe on other firm reservations. To
manage this risk, the customer would have two basic options. One would
be to take non-firm transmission or ancillary service on an as-
available basis (and potentially pay opportunity costs) when the need
to alter the planned operation arises. The other option would be to
subscribe to sufficient firm capacity in advance so as to build in the
desired operating flexibility. While either option would have financial
risks, all jurisdictional transmission customers would have the same
opportunity to manage this risk, since the transmission service would
be the same for all users.
[[Page 21851]]
Under a CRT, all unbundled transmission service in interstate
commerce, including unbundled retail service, would be taken under the
tariff unless the Commission in an individual case determined otherwise
(as discussed in the Open Access Final Rule in Section IV.I). The
rates, terms, and conditions for unbundled transmission service would
be in accordance with the tariff. In addition, all public utilities
would nominate and reserve firm transmission service under the tariffs,
including nominating and reserving transmission used for native load
(i.e., bundled wholesale requirements and bundled retail customers).
This means that nominations and reservations would have to be made for
specific receipt and delivery points for all firm transmission
services. The purpose of this requirement would be that it may better
ensure comparability. Moreover, the requirement for utilities to hold
reservations on behalf of bundled wholesale and retail customers would
be consistent with our responsibility under FPA section 213(b) to make
information available about ATC and transmission constraints. The
physical quantities of transmission service available to unbundled
users cannot be measured accurately as long as the physical quantities
used for bundled service are not measured in the same way.
However, we wish to emphasize that we are not proposing to set the
rates, terms or conditions for the transmission component of bundled
retail service. Nor would we determine the amount of capacity to be
reserved for retail load. Traditional ratemaking prerogatives of state
commissions would be unchanged by this nomination and reservation
requirement. If the CRT is adopted, the Commission would allocate
transmission costs based on the sum of all reservations for wholesale
customers, unbundled retail customers, and bundled retail customers.
State commissions could adopt a similar approach; however, they would
remain free to use an inter-jurisdictional allocation formula of their
own choosing, just as they may now. We note that in the Open Access
Final Rule we have provided for procedures to facilitate jurisdictional
line-drawing regarding cost allocation, and for deference to state
recommendations. Therefore, we do not expect significant conflicts.
Under a CRT, a public utility would have an opportunity to recover
all of its transmission fixed costs, just as it does today. While it is
possible that the federal and state allocations could add up to less or
more than 100 percent of the utility's fixed transmission costs, that
is a risk that a utility faces anytime it is subject to the rate
jurisdiction of more than one regulatory authority. Moreover, we would
work with state commissions to develop compatible cost allocation
procedures and to minimize the possibility of any over- or under-
recovery of transmission costs.
B. Proposed Principles
A capacity reservation tariff might have terms and conditions very
much like those for point-to-point service in the Final Rule tariff.
These would need to be modified to accommodate former network service
customers. It is premature to specify detailed terms and conditions of
capacity reservation service in advance of the comments and technical
conference. However, we propose certain general capacity reservation
tariff principles for comment.
1. Purpose of Reservation Service
Transmission products and services should be provided on an open
access, comparable basis. In order to ensure comparability,
transmission service should be nominated and reserved on a non-
discriminatory basis. Transmission for wholesale sales of electric
energy should be made available on an unbundled basis.
2. Basic Service Concept
All firm transmission service would be reserved, and all reserved
service would be firm service. Reservations of transmission capacity
should permit the customer to receive up to a specific amount of power
into the grid at specified PORs, and to deliver up to a specific amount
of power from the grid at specified PODs, on a firm basis. Individual
PORs and PODs need not be ``paired'' with each other. The customer's
capacity reservation would be the higher of either (1) the sum of the
reservations at all PORs or (2) the sum of the reservations at all
PODs. All nominations for a capacity reservation would be evaluated
using the same standard; for example, the utility could apply a
feasibility criterion that states that the grid must be able to
accommodate the scheduled use of all capacity reservations
simultaneously.
3. Use of Capacity Reservations
A customer with a capacity reservation could use the reservation to
deliver or receive any type of power product (such as firm or non-firm
power). That is, use of the capacity reservation should not be
restricted to particular power products. Any such restriction would be
inconsistent with unbundling. This would allow the capacity reservation
holder to combine transmission and power products in any way that
satisfies its needs.
4. Applicability to All Customers
Capacity reservations for all firm transmission service would be
made under the CRT, including reservations nominated on behalf of the
transmission provider's bundled wholesale and retail customers. This
would make it possible to allocate capacity and costs comparably among
all transmission users. This would not require the unbundling of the
transmission component of bundled retail rates or affect state
authority with regard to the rates, terms, and conditions of service to
bundled retail customers.
5. Application of Penalties for Overuse
Any charges for exceeding capacity reservations should be non-
discriminatory. If a CRT penalizes use in excess of reserved amounts,
these penalties should be applied comparably to all reservations. Any
dispositions of penalties assessed against the utility for violating
bundled retail capacity reservations would be under the state
commission's ratemaking authority. If penalties are not authorized by
the state commission's ratemaking authority, the Commission would not
authorize recovery of such penalties from other transmission customers.
6. Standard for Accepting Nominations
A nomination for a capacity reservation would be accepted if the
transmission provider determines that it can be reliably accommodated
without infringing on other firm reservations. If transmission capacity
expansion is needed and approved by state siting authorities, a
nomination should be accepted if the nominating customer is willing to
pay its appropriate share of the cost of the expansion.
7. Non-firm Transmission Service
In addition to reserved firm service, transmission providers would
offer non-firm transmission service. Non-firm service could be provided
from transmission capacity not scheduled by customers with reservations
or from capacity that is not previously reserved. Non-firm service
would be allocated to the highest valued use by opportunity cost
pricing as described in the Open Access Final Rule or by some other
pricing consistent with the Commission's Transmission Pricing Policy
Statement.
[[Page 21852]]
8. Open Season for New Facilities
We would anticipate requiring a transmission provider to publicly
announce its plans for capacity expansion projects to allow market
participants to reserve capacity. Participants would pay an appropriate
share of the costs of the project. All market participants would be
treated comparably in securing additional transmission capacity
reservations when the grid capacity is expanded.
9. Cost Allocation and Pricing
The fixed costs of the transmission network would be allocated
among reservation holders on the basis of their capacity reservations.
Rates would be designed to recover these costs and would be revised
from time to time to reflect changes in the level of fixed costs or
changes in reserved amounts. In this way, transmission providers would
have an opportunity to fully recover their fixed costs. Transmission
providers would be expected to propose specific mechanisms for
recovering fixed costs from transmission customers.
10. Standardized Products and Priority Protocols
Just as the Commission has required under the Open Access Final
Rule tariff, the CRT would offer standardized transmission products and
services, defining reserved and non-reserved transmission service and
setting reservation priorities and curtailment protocols. This would
reduce uncertainty and facilitate the trading of any transmission
capacity in a secondary market. Such trading can be an important tool
in price discovery and risk management.
11. Service Modifications
Customers with a capacity reservation would be allowed to modify
their capacity reservations at no additional charge if the modification
can be accommodated without infringing upon any other firm capacity
reservations. Modifications should not result in the customer's
capacity reservation being exceeded. Modifications could include
reallocation among the customer's already specified receipt and
delivery points or reallocation from existing to new receipt and
delivery points.
12. Scheduling Flexibility
Customers with capacity reservations would be given the option of
scheduling (using) less than their full capacity reservation at each
POR or POD. In addition, the transmission provider also could offer an
``obligation'' type of capacity reservation under which the customer
would be required to use all of the capacity it has reserved.
13. Reassigning Reservations
Customers would be allowed to reassign their reservations to other
entities eligible to take service under the CRT at no additional cost,
subject to certain limitations, such as those in the Open Access Final
Rule point-to-point tariff provisions.
14. Opportunity Cost Pricing
Opportunity cost pricing would still be an option under a capacity
reservation service. Under a CRT, a holder of a capacity reservation
would not pay opportunity costs for use of its own capacity when the
utility encounters a transmission constraint; instead, it would be
eligible to receive opportunity cost payments if it did not use its
full capacity reservation across the constrained interface. In
contrast, a customer seeking a capacity reservation or using non-firm
service might have to pay opportunity costs.
15. Planning Obligation
Each market participant would be responsible for planning its own
transmission needs. The transmission provider would not be responsible
under Federal rules for planning the CRT nominations of others, even
relatively small customers. Transmission providers, of course, would be
free to enter voluntary arrangements to perform this task, or they may
be required to do so under state laws. The Commission would consider
approving negotiated rates and conditions between a small customer and
a transmission utility that reflect different risks accepted by each
party when one plans for the other.
VI. Questions
In addition to the questions discussed above, the Commission also
seeks comments on the following questions:
1. What are the advantages and disadvantages of having two services
in one tariff?
2. What are the advantages and disadvantages of having all
transmission users on a load-based network service tariff? Are there
ways of overcoming the disadvantages without moving away from network
service?
3. Does network service provide any transmission use that could not
be provided under a CRT?
4. Is the CRT or a network approach better suited to encouraging
efficiency-enhancing transactions and encouraging wholesale power
markets in which the greatest number of sellers have a chance to
compete? Are they equally-suited to achieving these goals?
5. The proposed rule would require that all transmission uses,
including bundled retail service, be reserved. Is this appropriate? The
Commission intends that bundled wholesale and retail load would have
reservation priority and seeks comments on how best to achieve this. Is
it appropriate or necessary to have federal rules regarding such
matters as physical scheduling and reservation priority for bundled
retail load as well as for other transmission customers? How can
transmission service for bundled retail load be separated from
transmission service for others and how would such a separation be
implemented?
6. Would a CRT requirement by the Commission facilitate or hinder
any of the industry's current restructuring efforts?
7. Would a CRT facilitate or hinder any of the innovative
transmission pricing approaches now being considered by the industry?
Specifically, would it accommodate flow-based pricing that does not
depend on a contract path?
8. Should nominations for longer-term capacity reservation receive
priority over those for shorter terms? Are there other ways to allocate
capacity nominations? Would an initial open season, with bundled
wholesale and retail load priority, be appropriate?
9. How should points of receipt and points of delivery be defined?
Is the distinction between transmission and distribution relevant in
determining eligible points?
VII. Regulatory Flexibility Act Certification
The Regulatory Flexibility Act (RFA) \6\ requires rulemakings to
contain either a description and analysis of the effect that the
proposed rule will have on small entities or a certification that the
rule will not have a significant economic impact on a substantial
number of small entities. We note, if this proposed rule is adopted,
only public utilities that are subject to the Open Access Final Rule
will have to file CRTs. In other words, the proposed rule would be
applicable to public utilities that own, control or operate interstate
transmission facilities, not to electric utilities per se. Almost all
public utilities that own, control or operate interstate transmission
facilities do not fall within the RFA definition of small entities.
---------------------------------------------------------------------------
\6\ 5 U.S.C. Secs. 601-612.
---------------------------------------------------------------------------
[[Page 21853]]
In Mid-Tex Electric Coop., Inc. v. FERC,7 the court accepted
with the Commission's conclusion that, since virtually all of the
public utilities that it regulates do not fall within the meaning of
the term ``small entities'' as defined in the RFA,8 the Commission
did not need to prepare a regulatory flexibility analysis in connection
with its proposed rule governing the allocation of costs for
construction work in progress (CWIP).9 The CWIP rules applied to
all public utilities. The proposed rule in contrast would apply to only
those public utilities that own, control or operate interstate
transmission facilities. These entities are a subset of the group of
public utilities found not to require preparation of a regulatory
flexibility analysis for the CWIP rule. Further, the Commission expects
that public utilities for good cause shown could seek waivers of the
proposed rule's requirement, just as they are able to seek waiver of
the Open Access Final Rule.
---------------------------------------------------------------------------
\7\ 773 F.2d 327, 340-343 (D.C. Cir. 1985) (Mid-Tex).
\8\ The RFA defines a ``small entity'' as ``one which is
independently owned and operated and which is not dominant in its
field of operation.'' See 5 U.S.C. 601(3) and 601(6) and 15 U.S.C.
632(a)(1) (definition of ``small business concern'').
\9\ Mid-Tex, 773 F.2d at 340-43.
---------------------------------------------------------------------------
Because: (a) Virtually all of the utilities that would be subject
to the proposed rule are not ``small entities'' as defined in the RFA;
and (b) the proposed rule will make adequate provision, through
allowances for waivers, for mitigation of the effects of the rule, the
Commission certifies that this proposed rule will not have a
significant economic impact on a substantial number of small entities.
VIII. Environmental Statement
The Commission concludes that promulgating the proposed rule would
not represent a major federal action having a significant adverse
impact on the human environment under the Commission's regulations
implementing the National Environmental Policy Act.10
---------------------------------------------------------------------------
\10\ See 18 CFR 380.4(a)(15) (categorically excluding electric
tariff filings under sections 205 and 206 of the FPA from the
obligation to prepare an environmental assessment or an
environmental impact statement).
---------------------------------------------------------------------------
IX. Information Collection Statement
The Office of Management and Budget's (OMB) regulations 11
require that OMB approve certain information and recordkeeping
requirements imposed by an agency.
---------------------------------------------------------------------------
\11\ 5 CFR 1320.12.
---------------------------------------------------------------------------
The information collection requirements in the proposed rule are
contained in FERC-516 ``Electric Rate Filings.'' The Commission uses
the data collected in this information collection requirement to carry
out its regulatory responsibilities under Part II of the Federal Power
Act. The Commission's Office of Electric Power Regulation uses the data
to review electric rate filings.
The Commission is submitting notification of this proposed rule to
OMB. Interested persons may obtain information on the reporting
requirements by contacting the Federal Energy Regulatory Commission,
888 First Street NE., Washington, DC 20426 (Attention: Michael Miller,
Information Policy and Standards Branch, (202) 208-1415). Comments on
the requirements of this proposed rule can also be sent to the Office
of Information and Regulatory Affairs of OMB (Attention: Desk Officer
for Federal Energy Regulatory Commission).
X. Public Comment Procedures
The Commission invites comments on the proposed rule from
interested persons. An original and 14 copies of written comments on
the proposed rule must be filed with the Commission no later than
August 1, 1996.
In addition, commenters are requested to submit a copy of their
comments on a 3\1/2\ inch diskette formatted for MS-DOS based
computers. In light of our ability to translate MS-DOS based materials,
the text need be submitted only in the format and version in which it
was generated (i.e., MS Word, WordPerfect, ASCII, etc.). It is not
necessary to reformat word processor text to ASCII. For Macintosh and
Macintosh-based users, it would be helpful to save the documents in
Macintosh word processor format and then to write them to files on a
diskette formatted for MS-DOS machines. All comments should be
submitted to the Office of the Secretary, Federal Energy Regulatory
Commission, 888 First Street, NE., Washington, DC 20426, and should
refer to Docket No. RM96-11-000.
All written comments will be placed in the Commission's public
files and will be available for public inspection in the Commission's
public reference room at 888 First Street, N.E., Washington, DC 20426,
during regular business hours.
XI. Technical Conference
The Commission intends to convene a technical conference for two
days in September 1996 at the Commission's office, 888 First Street
NE., Washington, DC 20426, at a date and time to be announced. The
first day of the technical conference will address the issue of whether
the Commission should require CRTs. The second day will address the
issue of how to implement any such requirement.
List of Subjects in 18 CFR Part 35
Electric power rates, Electric utilities, Reporting and
recordkeeping requirements
By direction of the Commission.
Lois D. Cashell,
Secretary.
In consideration of the foregoing, the Commission proposes to amend
part 35, chapter I, title 18, Code of Federal Regulations, as set forth
below.
PART 35--FILING OF RATE SCHEDULES
1. The authority citation for part 35 continues to read as follows:
Authority: 16 U.S.C. 791a-825r, 2601-2645; 31 U.S.C. 9701; 42
U.S.C. 7101-7352.
2. Section 35.28 is revised to read as follows:
Sec. 35.28 Non-discriminatory open access transmission tariffs.
(a) Every public utility that owns, controls or operates facilities
used for the transmission of electric energy in interstate commerce
must have on file with the Commission a capacity reservation tariff of
general applicability for transmission services, including ancillary
services, over these facilities consistent with the requirements of
Order No. ____, (Final Rule on Open Access Capacity Reservation
Tariffs). Subject to the exception in paragraph (b) of this section,
such tariff must be filed no later than the date on which the
Commission accepts for filing any agreement under which such public
utility would engage in a sale of electric energy at wholesale in
interstate commerce, or any agreement under which such public utility
would engage in the transmission of electric energy in interstate
commerce.
(b) If a public utility owns, controls or operates facilities used
for the transmission of electric energy in interstate commerce as of
July 9, 1996. it must file a capacity reservation tariff of general
applicability for transmission services, including ancillary services,
over these facilities consistent with the requirements of Order No. --
(Final Rule on Open Access Capacity Reservation Tariffs) no later than
December 31, 1997.
(c) Any public utility that owns, controls or operates facilities
used for the transmission of electric energy in interstate commerce,
and that uses those facilities to engage in wholesale sales and/or
purchases of electric energy, or
[[Page 21854]]
unbundled retail sales of electric energy, must take transmission
service for such sales and/or purchases under the tariff filed pursuant
to this section.
[FR Doc. 96-10692 Filed 5-09-96; 8:45 am]
BILLING CODE 6717-01-P
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