issue-1996-06-24•Federal Register proposed rules — 1996-06-24
Federal Register proposed rules — 1996-06-24
issue-1996-06-24Federal Register proposed rules — 1996-06-24Proposed 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. 96-16045 Passenger Origin-Destination Survey Reports
[Federal Register Volume 61, Number 122 (Monday, June 24, 1996)]
[Proposed Rules]
[Pages 32375-32382]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16045]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Office of the Secretary
14 CFR Part 241
[Docket No. OST-95-744; Notice No. 96-18]
RIN Number 2139-AA04
Passenger Origin-Destination Survey Reports
AGENCY: Office of Secretary, DOT.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Department of Transportation (DOT or the Department)
proposes that large certificated U.S. air carriers participating in
code-share arrangements report both the ticketing and operating air
carriers in their quarterly Passenger Origin-Destination Survey
reports. DOT needs the information to assess accurately the effects of
code-sharing alliances in air transportation. Also, the Department
proposes to expand by one position the field entitled ``Total Dollar
Value of Ticket'' to accommodate current charges; and to standardize
the format for floppy disk submissions using the
[[Page 32376]]
same 200 character record layout that is used for magnetic tape
submissions. This action is taken on the Department's own initiative.
DATES: Comments are due August 23, 1996.
ADDRESSES: Comments should be directed to the Docket Clerk, Docket OST-
95-744, room PL 401, Office of the Secretary, Department of
Transportation, 400 Seventh Street, SW., Washington, DC 20590-0001 from
10 a.m. to 5 p.m. ET, Monday through Friday, except Federal Holidays.
Comments: Comments should identify the regulatory docket number and
be submitted in duplicate to the address listed above. Commenters
wishing the Department to acknowledge receipt of their comments must
submit with those comments a self-addressed stamped postcard on which
the following statement is made: Comments on Docket OST-95-744. The
postcard will be dated/time stamped and returned to the commenter. All
comments submitted will be available for examination in the Rules
Docket both before and after the closing date for comments.
FOR FURTHER INFORMATION CONTACT: Bernie Stankus, Office of Airline
Information, K-25, Bureau of Transportation Statistics, 400 Seventh
Street, SW., Washington, DC 20590, (202) 366-4387.
SUPPLEMENTARY INFORMATION:
Background
Code-sharing has become increasingly widespread in both interstate
and foreign air transportation. Congress has urged the DOT to analyze
more thoroughly the effects of international code-sharing on air
transportation and U.S. air carriers. In testimony before the Senate
Committee on Commerce, Science, and Transportation in June 1995, the
Secretary pledged to expand the DOT's monitoring of the effects of
code-sharing.
Under the current Passenger Origin-Destination Survey (Survey)
reporting system, the DOT has difficulty evaluating the effects of
code-sharing alliances on air carriers and consumers. As currently
designed, the Survey does not identify both carriers on a code-share
ticket. According to instructions sent to participating carriers on
September 11, 1995, the Survey identifies the carrier transporting the
passenger (operating carrier), but not the ticketing carrier (carrier
of record on the ticket).
To assess accurately the effects of international code-share
agreements, DOT needs to know the ticketed carrier as well as the
transporting carrier for the various legs of the passenger's flight.
If both code-sharing partners are identified in the survey, it will
eliminate the need for special reports, as now obtained from certain
U.S. carriers, regarding major international code-share alliances.
In the United States, regional carrier service is growing as major
carriers are handing over more service to their code-share partners.
Service to small communities can be affected by code-sharing, creating
a need for DOT to monitor the impact on the communities from code-share
services.
Given the need for international code-share data, the need for
purely domestic code-share data, and the fact that many international
passengers interline on domestic code-share flights, the requirement to
report both the ticketed and operating carriers is proposed for both
international and domestic tickets. This coverage would benefit
participating carriers by eliminating the need for maintaining two
reporting systems, one for international service and one for domestic
service.
On October 23, 1995, the DOT issued a notice in the Federal
Register (60 FR 54407) stating its intention to collect the identities
of both the ticketed and operating carriers from code-share operations
(Accounting and Reporting Directive No. 194.) This requirement was to
become effective on January 1, 1996.
A 30-day comment period was provided. Some of the commenters
believed this issue should be addressed by rulemaking. In deference to
those comments, the DOT issued Accounting and Reporting Directive No.
198 which rescinded Accounting and Reporting Directive No. 194, and
stated the Department's intent to proceed with a rulemaking in order to
allow full and public discussion. Other commenters requested a delay in
the implementation date, clarification of reporting downline code-
shares in which the lifting carrier (reporting carrier) is not a party
to the code-share, clarification of reporting code-share information
from tickets that are lifted by another carrier, and some carriers
requested that the code-share data relating to foreign carriers be
withheld from public disclosure.
We propose to collect survey data that identifies both the
ticketing and operating air carriers without causing an undue burden on
reporting air carriers.
General Definitions
A participating carrier is a large certificated U.S. carrier that
is required to submit the quarterly Survey.
The reporting carrier is the first participating carrier that
operates a segment of a passenger's itinerary. The reporting carrier is
responsible for submitting the Survey data. DOT proposes that the
reporting carrier be responsible for identifying the operating and
ticketing carriers for code-shares in which the reporting carrier is a
party.
The ticketed carrier is the carrier whose two character carrier
code appears on the passenger ticket.
The Passenger Origin-Destination Survey is a sampling of airline
passengers' itineraries. Currently, all participating carriers are
reporting a 10-percent sample by reporting all ticket numbers ending
with zero. Some carriers using a ticketless reservation system have
made an alternative arrangement to report a 10-percent sample.
Implementation Date
Given the urgent need for accurate, reliable code-share data, the
DOT plans to make the rule effective on the first day of a calendar
quarter, at least 60 days after the final rule is published. For
example, if the final rule were published on July 30, 1996, the rule
would be effective on October 1, 1996, with the first submission due on
February 15, 1997. If the final rule were published on August 3, 1996,
the rule would be effective on January 1, 1997, with the first
submission due on May 15, 1997. The DOT believes this will allow
sufficient time for participating air carriers to make necessary
changes to their information gathering systems.
Downline Code-Share Flights
The reporting air carrier is responsible for identifying its own
code-share partners. When there is a downline code-share segment in
which the reporting carrier is not a party, the reporting carrier is
not required to expend extra resources to track and properly identify
both the operating and ticketed carrier for such downline segments.
When a downline operating carrier is not known by the reporting
carrier, the reporting carrier would use the ticketed carrier's code to
identify the unknown operating carrier. DOT would prefer to have both
carriers properly identified on all code-share segments. However, we
recognize that, under current conditions, the burden of requiring the
reporting carrier to capture other parties' code-share data would
likely outweigh the benefits of the data. Where such data are readily
available to the reporting carrier, it should report both operating and
ticketed carriers for downline code-share operations in which they are
not a party. This procedure would improve the value of the Survey for
all users.
[[Page 32377]]
Lifting Tickets
The reporting carrier is responsible for sampling and reporting
applicable tickets from all passengers carried on flight segments which
it operates including, but not limited to, code-share and blocked-space
passengers. In some instances, the reporting (operating) carrier may
not actually lift the passenger's ticket. Nevertheless, in these cases
it is the responsibility of the reporting carrier to get the necessary
information from its code-share affiliated carrier to properly report
all applicable tickets. Otherwise, passengers will not be properly
sampled and the Survey results will be distorted.
Nonreported or Dual Reported Tickets
DOT recognizes that with code-sharing, some tickets that normally
would be reported are not reported, and other tickets may be reported
twice.
For instance, a passenger is ticketed under a U.S. participating
carrier's code and is carried by a foreign carrier. That passenger then
interlines with another U.S. participating carrier. The foreign carrier
does not report the Survey; and the second operating carrier may
believe that the U.S. carrier, appearing on the ticket, operated the
first segment and reported the ticket.
If a U.S. carrier operates a flight segment that is ticketed using
the code of its foreign air carrier partner, the U.S. carrier would
report the Survey data. If that passenger then interlines with a second
U.S. carrier, that second U.S. carrier may believe it is the first U.S.
operating carrier and also report the Survey data. However, we believe
these instances will be the exception and will not materially impact
the results of the Survey.
Reporting Examples
Below are some examples of code-share itineraries:
A. Single Segment Itineraries
1. U.S. air carrier (BB) operates under a foreign air carrier's
code (FO).
O&D reporting--BB
Operating carrier--BB
Ticketed carrier--FO
2. Foreign air carrier (FO) operates under U.S. air carrier code
(BB).
O&D reporting--none (No U.S. participating carrier operated a flight
segment)
Operating carrier--FO
Ticketed carrier--BB
3. A nonparticipating U.S. air carrier (NP) operates under a U.S.
air carrier's (BB) code.
O&D reporting--none (No U.S. participating carrier operated a flight
segment)
Operating carrier--NP
Ticketed carrier--BB
4. U.S. participating air carrier (AB) operates under U.S.
participating air carrier's (XY) code.
O&D reporting--AB
Operating carrier--AB
Ticketed carrier--XY
B. Multi Segment Itineraries
1. Foreign air carrier (FO) operates under U.S. air carrier code
(BB) then the passenger interlines with US carrier (BB).
O&D reporting--BB (was the first participating U.S. carrier to
operate)
First Segment
Operating carrier--FO
Ticketed carrier--BB
Second Segment
Operating carrier--BB
Ticketed carrier--BB
2. U.S. air carrier (BB) operates under a foreign air carrier's
code (FO) and the passenger interlines with the foreign carrier.
O&D reporting--BB (operated first segment)
First Segment
Operating carrier--BB
Ticketed carrier--FO
Second Segment
Operating carrier--FO
Ticketed carrier--FO
3. Nonparticipating U.S. air carrier (NP) operates under
participating U.S. carrier code (BB) and the passenger interlines with
BB.
O&D reporting--BB (operated second segment)
First Segment
Operating carrier--NP
Ticketed carrier--BB
Second Segment
Operating carrier--BB
Ticketed carrier--BB
4. U.S. participating carrier (BB) operates under U.S.
participating air carrier (XY) code and the passenger interlines with
XY.
O&D reporting--BB
First Segment
Operating carrier--BB
Ticketed carrier--XY
Second Segment
Operating Carrier--XY
Ticketed Carrier--XY
C. Multi Segment Itineraries With Interline Between Code-Share and
Noncode-Share Carriers
1. Foreign air carrier (FO) operates under U.S. participating
carrier's code (BB) and then the passenger interlines with U.S.
participating carrier XY.
O&D reporting--XY (However, this ticket probably would not be
reported if XY did not realize it was the first participating
carrier to operate)
First Segment
Operating carrier--FO
Ticketed carrier--BB
Second Segment
Operating carrier--XY
Ticketed carrier--XY
2. Foreign air carrier (FO) operates under a U.S. participating
carrier's code (BB), the passenger interlines to a BB operated flight
and then interlines with U.S. participating air carrier XY.
O&D reporting--BB (operated second segment)
First Segment
Operating carrier--FO
Ticketed carrier--BB
Second Segment
Operating carrier--BB
Ticketed carrier--BB
Third Segment
Operating carrier--XY
Ticketed carrier--XY
3. U.S. air carrier (BB) operates under foreign air carrier's (FO)
code, the passenger interlines to the foreign air carrier then to
another U.S. air carrier (XY).
O&D reporting--BB (BB operated the first segment; however, there may
be duplicate reporting, if XY believed it was the first operating
U.S. carrier and also reported the data)
First Segment
Operating carrier--BB
Ticketed carrier--FO
Second Segment
Operating carrier--FO
Ticketed carrier--FO
Third Segment
Operating carrier--XY
Ticketed carrier--XY
4. Nonparticipating U.S. air carrier (NP) operates under a U.S.
participating air carrier's code (BB) and the passenger interlines with
BB and then with XY.
O&D reporting--BB (operated second segment)
First Segment
Operating carrier--NP
Ticketed carrier--BB
Second Segment
Operating carrier--BB
Ticketed carrier--BB
Third Segment
Operating carrier--XY
Ticketed carrier--XY
5. Nonparticipating U.S. air carrier (NP) operates under a U.S.
participating air carrier's code (BB) and the passenger interlines with
U.S. participating carrier XY.
O&D reporting--XY (However, this ticket probably would not be
reported if XY did not realize it was the first participating
carrier to operate)
First Segment
Operating carrier--NP
Ticketed carrier--BB
Second Segment
Operating carrier--XY
Ticketed carrier--XY
[[Page 32378]]
6. U.S. participating carrier (BB) operates the first segment; the
passenger then interlines on a code-share between AB and XY.
O&D reporting--BB (If BB did not know AB operated second segment it
would report XY for both operating and ticketed carriers)
First Segment
Operating carrier--BB
Ticketed carrier--BB
Second Segment
Operating Carrier--AB
Ticketed Carrier--XY
Honored Tickets
There are instances where a reporting carrier may honor the ticket
of another carrier (noncode-share partner), and transport the passenger
without re-issuing the ticket. In these cases, the reporting carrier
should treat the ticket as if it had actually been re-issued and report
it accordingly. If the reporting carrier reported the air-carrier code
on the actual ticket, it would appear that there is a code-share
arrangement between the ticketed and operating carrier when, in fact,
there is none.
Confidentiality of Code-Share Data
United, Delta and Northwest believe code-share data relating to
their foreign code-share partners should be granted special
confidential treatment. DOT disagrees. The DOT policy has been to
consistently treat the equal data exchanges of traffic statistics as
procompetitive. Carriers enter into code-share arrangements in an
attempt to gain marketing advantages. DOT believes that these
arrangements should not be given special disclosure treatment, because
all participating carriers will be reporting their code-share
operations in the same manner. Therefore, we are proposing not to alter
the regulations as they pertain to the release of Survey data.
Total Dollar Value of Ticket
The Total Dollar Value of Ticket equals the passenger fare plus any
tax or other charges such as Passenger Facility Charges (PFC). Because
some fares now exceed $9,999, we propose to expand the ``Total Dollar
Value of Ticket'' field by one position.
Standardize Formats for Floppy Disk Submissions
The Department has encouraged carriers that do not have the
capability to report via magnetic tape or cartridge to submit their
reports via floppy diskettes. To avoid the multitude of formats
currently received, we propose to prescribe a 200 position format with
standard lengths of fields for submission of personal computer (PC)
generated Survey reports. The field descriptions and field lengths will
be identical to the fields prescribed for magnetic tape/cartridge
submissions (see Appendix A Sec. IX. ADP Instructions of 14 CFR
241.19). However, to simplify the PC submissions, the submitter may
report the dollar value of the ticket in the field immediately after
the last reported city code, rather than in positions 196-200.
Submitters may separate fields by using commas or tabs (comma delimited
ASCII or tab delimited ASCII format).
Reporting Burden
We estimate a four-hour increase per response to report both the
ticketed and operating carrier and a one-time reprogramming burden of
200 hours per respondent. Some of the code-share operators that have an
extensive network may very well experience a larger increase in
reporting burden, while carriers that do not code-share or interline
will experience less of a reporting burden increase.
We estimate reprogramming costs of $10,000 per carrier (200 hrs.
x $50 = $10,000), and an annual burden increase of $800 (16 hrs. x
$50 = $800). Total first year cost for the airline industry would be
approximately $432,000 (40 carriers x $10,800 = $432,000). After the
first year, the annual cost of the rule is estimated to be $800 per
carrier and $32,000 for the industry.
Carriers that commented on the October 23, 1995 Federal Register
Notice believed that the burden increase would be greater than DOT's
estimate. However, these carriers were under the assumption that they
would be required to track the code-share flights of alliances in which
they were not a participant. Since carriers are not required to track
these code-share flights, DOT believes their burden estimates were
overstated. DOT encourages carriers to give us their burden and cost
estimates for complying to this NPRM.
Rulemaking Analyses and Notices
Executive Order 12866 and DOT Regulatory Policies and Procedures
This proposed rule is not considered a significant regulatory
action under section 3(f) of Executive Order 12866 and, therefore, is
not subject to review by the Office of Management and Budget.
This rule is not considered significant under the regulatory
policies and procedures of the Department of Transportation (44 FR
11034). The purpose of the rule is to improve the accuracy and
reliability of the Survey. This objective will be achieved by amending
14 CFR 241.19-7 to include the collection of the identity of the
ticketed carrier along with the identity of the operating carrier.
There are about 40 carriers that report the Survey. With the reporting
of operating and ticketed carriers, DOT would be able to conduct
balance of benefits analyses for international agreements and monitor
the adequacy of air service to small communities.
Executive Order 12612
This proposed rule has been analyzed in accordance with the
principles and criteria contained in Executive Order 12612
(``Federalism'') and the DOT has determined the rule does not have
sufficient federalism implications to warrant the preparation of a
Federalism Assessment.
Regulatory Flexibility Act
I certify this proposed rule will not have a significant economic
impact on a substantial number of small entities. The amendments will
affect only large certificated U.S. air carriers operating scheduled
passenger service. The Department's economic regulations define ``large
certificated air carrier'' as U.S. air carriers, holding a certificate
issued under 49 U.S.C. 41102, that operate aircraft designed to have a
maximum passenger capacity of more than 60 seats or a maximum payload
capacity of more than 18,000 pounds. Consequently, small carriers are
not affected by this NPRM.
National Environmental Protection Act
The Bureau of Transportation Statistics has analyzed the proposed
amendments for the purpose of the National Environmental Protection
Act. The proposed amendments will not have any impact on the quality of
human environment.
Paperwork Reduction Act
The reporting and recordkeeping requirements associated with this
rule are being sent to the Office of Management and Budget in
accordance with 44 U.S.C. Chapter 35 under OMB NO: 2139-0001.
Administration: Bureau of Transportation Statistics; Title: Passenger
Origin-Destination Survey Report; Need for Information: Statistical
information on airline passenger movements; Proposed Use of
Information: Balance of benefits analyses for international agreements
and monitoring adequacy of air service to small communities; Frequency:
Quarterly; Burden Estimate: 46,080 annual hours; Average Annual Burden
Hours per Respondent: 1152. For further information contact: The Office
of
[[Page 32379]]
Information Resource Management, M-32, Office of the Secretary of
Transportation, 400 Seventh Street, SW, Washington, DC 20590-0001,
(202) 366-4735 or Transportation Desk Officer, Office of Management and
Budget, New Executive Office Building, Room 3228, Washington, DC 20503.
Regulation Identifier Number
A regulation identifier number (RIN) is assigned to each regulatory
action listed in the Unified Agenda of Federal Regulations. The
Regulatory Information Service Center publishes the Unified Agenda in
April and October of each year. The RIN number 2139-AA04 contained in
the heading of this document can be used to cross reference this action
with the Unified Agenda.
List of Subjects in 14 CFR Part 241
Air carriers uniform system of accounts and reports.
Proposed Rule
Accordingly, the Bureau of Transportation Statistics proposes to
amend 14 CFR part 241 Uniform System of Accounts and Reports for Large
Certificated Air Carriers, as follows:
PART 241--[AMENDED]
1. Revise Sec. 19-7(b) to read as follows:
Sec. 19-7 Passenger origin-destination survey.
(a) * * *
(b) Those participating air carriers that have access to automatic
data processing (ADP) services shall utilize magnetic tape, cartridge,
floppy diskette or other ADP media for transmitting the prescribed
data. Those carriers without ADP capability should contact the Office
of Airline Information for further instructions ((202) 366-4373).
* * * * *
2. In Appendix A of Sec. 19-7, revise Sec. V.B to read as follows:
* * * * *
B. Selection of Reportable Flight Coupons. The flight coupons
identified above are to be examined to isolate the reportable flight
coupons, i.e. coupons from which data are to be recorded. Flight
coupon data are reported only by the first honoring and
participating carrier (operating carrier). Such carriers shall
report the required data for the entire ticketed itinerary.
If a participating carrier has preceded an examining carrier on
any stage in the trip itinerary, including any stage in a
conjunction itinerary and any stage in a reissued ticket (either
before or after reissue) that coupon is not reportable.
For conjunction tickets, the ticket number for the first ticket
booklet determines if the conjunction tickets should be reported in
the Survey. Otherwise, conjunction tickets do not require special
treatment and are governed by the rules for regular tickets.
No adjustment is made in the Survey for alterations or changes
in the trip itinerary subsequent to the stage covered by the
reportable coupon.
3. In Appendix A of Sec. 19-7, in Sec. V.D., revise paragraph
D.(1); the table in paragraph D.(2)(a); paragraph D.(2)(b); paragraph
(c) and the first paragraph of (d) to read as follows:
* * * * *
D. Recording of Data from Reportable Flight Coupons. (1) The
following items are to be reported from the reportable flight
coupons:
(a) Point of origin,
(b) Operating carrier on each flight stage (if unknown, identify
ticketed carrier),
(c) Ticketed carrier on each flight stage,
(d) Fare-basis on each flight coupon, C, D, F, G, X or Y,
(e) Points of stopover or connection (interline and intraline),
(f) Point of destination,
(g) Number of Passengers, and
(h) Total dollar value of ticket (fare plus tax or other charges
such as Passenger Facility Charges).
(2) * * *
(a) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
000001 UCA YV UA Y JFK TW TW X
--------------------------------------------------------------------------------------------------------------------------------------------------------
Passengers................... Utica...... Mesa Operating United Ticketed Fare....... New York Kennedy TWA Operating TWA Ticketed Fare.
Carrier. Carrier. Airport. Carrier. Carrier.
--------------------------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------
(Surface segment indicator
consists of dash dash and a
SFO blank in lieu of carrier code
and fare-basis code)
------------------------------------------------------------------------
San Francisco.......................... Surface segment.
------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
OAK UA UA G LAX DL DL SLC F
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Oakland.......................... United Operating United Ticketed Fare.......... Los Angeles............. Delta Operating Delta Ticketed Salt Lake City..... Fare.
Carrier. Carrier. Carrier. Carrier.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------------------------------
NW NW D PHX AA AA C LAX
--------------------------------------------------------------------------------------------------------------------------------------------------------
Northwest Operating Carrier.. Northwest Fare............ Phoenix......... American American Fare........... Los Angeles.
Ticketed Operating Ticketed
Carrier. Carrier. Carrier.
--------------------------------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
JL JL C NRT 4596
----------------------------------------------------------------------------------------------------------------
Japan Air Lines Operating Japan Air Lines Fare.............. Tokyo Narita...... Dollars of Fare +
Carrier. Ticketed Carrier. Tax.
----------------------------------------------------------------------------------------------------------------
* * * * *
(b) All entries for operating and ticketed carriers for a coupon
stage of an itinerary are to be recorded using two character IATA-
assigned or DOT codes, as in the above example. Note that the fare code
summary was properly inserted after the ticketed carrier's code, i.e.,
UA for United Air Lines and Y for unrestricted coach class service.
When a two-character carrier code is shown on the ticket, record that
code for the
[[Page 32380]]
ticketed carrier. However, if a code is obviously incorrect, record the
correct carrier code. If the reporting carrier does not know the
operating carrier on a downline code-share segment, it may use the
ticketed carrier's code for both the operating and ticketed carriers.
This applies only when the reporting carrier is not a party to the
code-share segment. Except for the infrequent compression of data to
fit into the stage-length limitation (7 or 23 stages at the carrier's
option), all carrier codes are to be recorded, including data on air
taxis, commuters, intra-state, and other carrier portions of
itineraries. On tickets involving interchange service or other
cooperative carrier arrangements, the juncture point(s) where the
passenger moves from one carrier system to another is to be recorded as
an intermediate point in the itinerary, even when not shown on the
ticket and even though the flight may overfly the junction point.
(c) Entries for fare-basis codes are to be taken from the ``fare
basis'' and ``fare description'' portions of the ticket. No Attempt
shall be made to determine the record fare-basis code for that portion
of a conjunction ticket appearing in the ticket. Fare-basis codes are
to be recorded in one-character alphabetic codes. The fare-basis codes
are recorded as follows:
C--Unrestricted Business Class
D--Restricted Business Class
F--Unrestricted First Class
G--Restricted First Class
X--Restricted Coach/Economy Class
Y--Unrestricted Coach/Economy Class
U--Unknown (This fare category is used when none is shown on a
ticket coupon, or when a fare category is not discernable, or when
two or more carrier fare codes are compressed into a single stage of
a passenger trip).
(d) In recording the number of passengers, each single-passenger
ticket is to be recorded as one passenger. Tickets for infants under
two years of age not occupying a seat are not to be counted. A revenue
passenger is defined in Section X.
* * * * *
4. In Appendix A to Sec. 19-7, in Sec. IX, revise the first table
in paragraph A.(1) and paragraphs B. and C. to read as follows:
* * * * *
A. * * *
(1) * * *
------------------------------------------------------------------------
Tape
Field positions Tape record layout
(From-To)
------------------------------------------------------------------------
PASSENGER COUNT.................. 1-6 1. Passenger field must
contain leading zeros,
and no blanks.
1ST CITY CODE.................... 7-9
1ST OPERATING CARRIER............ 10-11
1ST TICKETED CARRIER............. 12-13 2. City field contains
the 3-letter alpha code
for the airport in the
first 3 positions.
FARE BASIS CODE.................. 14
2ND CITY CODE.................... 15-17
2ND OPERATING CARRIER............ 18-19
2ND TICKETED CARRIER............. 20-21
FARE BASIS CODE.................. 22
3RD CITY CODE.................... 23-25
3RD OPERATING CARRIER............ 26-27
3RD TICKETED CARRIER............. 28-29
FARE BASIS CODE.................. 30
4TH CITY CODE.................... 31-33 3. Ticketed & operating
carrier fields are to
contain the 2 character
air carrier code. An
unknown carrier is to
be coded ``UK'' and
surface carrier is to
be code ``- -'' (dash
dash).
4TH OPERATING CARRIER............ 34-35
4TH TICKETED CARRIER............. 36-37
FARE BASIS CODE.................. 38
5TH CITY CODE.................... 39-41
5TH OPERATING CARRIER............ 42-43
5TH TICKETED CARRIER............. 44-45
FARE BASIS CODE.................. 46
6TH CITY CODE.................... 47-49 4. Fare basis code is a
one position alpha
code.
6TH OPERATING CARRIER............ 50-51
6TH TICKETED CARRIER............. 52-53
FARE BASIS CODE.................. 54 5. Portion of record for
sorting, summarizing,
and sequencing includes
columns 7 through 200.
7TH CITY CODE.................... 55-57
7TH OPERATING CARRIER............ 58-59
7TH TICKETED CARRIER............. 60-61
FARE BASIS CODE.................. 62
8TH CITY CODE.................... 63-65 6. Dollar amount in
positions 196-200 is
right justified.
8TH OPERATING CARRIER............ 66-67
8TH TICKETED CARRIER............. 68-69
FARE BASIS CODE.................. 70 7. Positions 66-193 are
used only by those
carriers who want to
report more data, and
are not compressing to
7 stages (see Sec.
V.D. (3) for
compressing rules.
9TH CITY CODE.................... 71-73
9TH OPERATING CARRIER............ 74-75
9TH TICKETED CARRIER............. 76-77
FARE BASIS CODE.................. 78
10TH CITY CODE................... 79-81
10TH OPERATING CARRIER........... 82-83
10TH TICKETED CARRIER............ 84-85
FARE BASIS CODE.................. 86
11TH CITY CODE................... 87-89
[[Page 32381]]
11TH OPERATING CARRIER........... 90-91
11TH TICKETED CARRIER............ 92-93
FARE BASIS CODE.................. 94
12TH CITY CODE................... 95-97
12TH OPERATING CARRIER........... 98-99
12TH TICKETED CARRIER............ 100-101
FARE BASIS CODE.................. 102
13TH CITY CODE................... 103-105
13TH OPERATING CARRIER........... 106-107
13TH TICKETED CARRIER............ 108-109
FARE BASIS CODE.................. 110
14TH CITY CODE................... 111-113
14TH OPERATING CARRIER........... 114-115
14TH TICKETED CARRIER............ 116-117
FARE BASIS CODE.................. 118
15TH CITY CODE................... 119-121
15TH OPERATING CARRIER........... 122-123
15TH TICKETED CARRIER............ 124-125
FARE BASIS CODE.................. 126
16TH CITY CODE................... 127-129
16TH OPERATING CARRIER........... 130-131
16TH TICKETED CARRIER............ 132-133
FARE BASIS CODE.................. 134
17TH CITY CODE................... 135-137
17TH OPERATING CARRIER........... 138-139
17TH TICKETED CARRIER............ 140-141
FARE BASIS CODE.................. 142
18TH CITY CODE................... 143-145
18TH OPERATING CARRIER........... 146-147
18TH TICKETED CARRIER............ 148-149
FARE BASIS CODE.................. 150
19TH CITY CODE................... 151-153
19TH OPERATING CARRIER........... 154-155
19TH TICKETED CARRIER............ 156-157
FARE BASIS CODE.................. 158
20TH CITY CODE................... 159-161
20TH OPERATING CARRIER........... 162-163
20TH TICKETED CARRIER............ 164-165
FARE BASIS CODE.................. 166
21ST CITY CODE................... 167-169
21ST OPERATING CARRIER........... 170-171
21ST TICKETED CARRIER............ 172-173
FARE BASIS CODE.................. 174
22ND CITY CODE................... 175-177
22ND OPERATING CARRIER........... 178-179
22ND TICKETED CARRIER............ 180-181
FARE BASIS CODE.................. 182
23RD CITY CODE................... 183-185
23RD OPERATING CARRIER........... 186-187
23RD TICKETED CARRIER............ 188-189
FARE BASIS CODE.................. 190
24TH CITY CODE................... 191-193
BLANK............................ 194-195
US VALUE OF TICKET IN $.......... 196-200
------------------------------------------------------------------------
* * * * *
B. Editing of Tape Records. Prior to submission of data, each
carrier is requested to edit and correct its data so that its O&D
Survey report may be as error-free as is reasonably practicable. The
methods to be used in editing are left to the carriers' discretion,
but with assistance available upon request from the Department's
Office of Airline Information (OAI). To aid the carriers in
maintaining a current file of editing criteria, OAI will re-issue,
as needed, the city/airport-carrier file to each participating
carrier. There will be a five-position field to denote the city/
airport-carrier. The first three positions denotes the airport and
the last two positions denotes the air carrier.
C. Standard Formats for Floppy Disk or Cartridge Submissions.
Carriers should use the 200 position format with the standard length
fields prescribed for magnetic media submissions. The record layout
is detailed in subsection A(1) of this section. However, to simplify
the PC submissions, the submitter may report the dollar value of the
ticket in the field immediately after the last reported city code,
rather than in positions 196-200. Submitters may separate fields by
using commas or tabs (comma delimited ASCII or tab delimited ASCII
format).
5. In Appendix A to Sec. 19-7, in Sec. X., revise the definition of
``Fare basis code and add the following new definitions to read as
follows:
* * * * *
Fare basis code. The alphabetic code(s) or combination of
alphabetic and numeric codes appearing in the ``Fare basis'' box on
the flight coupon which describe the applicable service and discount
to which the passenger is entitled. All fare basis codes are
summarized into basic categories; namely C--Unrestricted Business
Class, D--Restricted Business Class, F--Unrestricted
[[Page 32382]]
First Class, G--Restricted First Class, X--Restricted Coach/Economy
Class, Y--Unrestricted Coach/Economy Class, and U--Unknown (This
fare category is used when none is shown on a ticket coupon, or when
a fare category is not discernable, or when two or more carrier fare
codes are compressed into a single stage of a passenger trip).
* * * * *
Operating air carrier. Under a code-share arrangement, the air
carrier whose aircraft and flight crew are used to perform a flight
segment.
* * * * *
Ticketed air carrier. Under a code-share arrangement, the air
carrier whose two-character air carrier code is used for a flight
segment, whether or not it actually operates the flight segment.
* * * * *
Issued in Washington, DC, on May 31, 1996.
Charles A. Hunnicutt,
Assistant Secretary for Aviation and International Affairs.
[FR Doc. 96-16045 Filed 6-21-96; 8:45 am]
BILLING CODE 4910-62-P
Complete official Federal Register PDF
FR Doc. 96-16026 Classification Reform; Implementation Standards
[Federal Register Volume 61, Number 122 (Monday, June 24, 1996)]
[Proposed Rules]
[Pages 32606-32616]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16026]
[[Page 32605]]
_______________________________________________________________________
Part VI
Postal Service
_______________________________________________________________________
39 CFR Part 111
Classification Reform; Implementation Standards; Proposed Rule
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 /
Proposed Rules
[[Page 32606]]
POSTAL SERVICE
39 CFR Part 111
Classification Reform; Implementation Standards
AGENCY: Postal Service.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This notice presents the full text of the Domestic Mail Manual
standards that the Postal Service proposes to adopt for implementing
its Classification Reform proposals contained in Postal Rate Commission
Docket No. MC96-2, Classification Reform II.
DATES: Comments on the proposed standards must be received on or before
July 24, 1996.
ADDRESSES: Written comments should be mailed or delivered to the
Manager, Customer Mail Preparation, U.S. Postal Service, 475 L'Enfant
Plaza SW, Room 6830, Washington DC 20260-2405. Copies of all written
comments will be available at the above address for inspection and
photocopying between 9 a.m. and 4 p.m., Monday through Friday.
FOR FURTHER INFORMATION CONTACT: Leo F. Raymond, (202) 268-5199.
SUPPLEMENTARY INFORMATION: On April 4, 1996, pursuant to its authority
under 39 U.S.C. 3621, et seq., the Postal Service filed with the Postal
Rate Commission (PRC) a request for a recommended decision on several
mail classification reform proposals (Classification Reform II). The
PRC designated the filing as Docket No. MC96-2. On April 11, 1996, the
PRC published a notice of the filing, with a description of the Postal
Service's proposals, in the Federal Register (61 FR 16129-16146).
As stated in the Postal Service filing, the changes proposed in
Docket No. MC96-2 deliberately mirror those adopted by the Governors of
the Postal Service in Docket No. MC95-1. The Postal Service believes
that this feature of its proposal will expedite the ratemaking process
and facilitate simplified implementing standards if the PRC's
Recommended Decision substantially supports the Postal Service's
proposal and if that Recommended Decision is approved by the Governors
and implemented by the Board of Governors.
Until July 1, 1996 (the implementation date for Classification
Reform I), rate eligibility and mail preparation standards are
generally similar for both commercial and nonprofit mail. After that
date, new standards will take effect for commercial rate categories,
while the existing rules generally will be retained for the
``unreformed'' nonprofit categories pending the resolution of Docket
No. MC96-2. In line with its proposal in Docket No. MC96-2, the Postal
Service is proposing revised Domestic Mail Manual (DMM) standards for
nonprofit rate categories that will substantively eliminate the
preparation and rate eligibility distinctions between commercial and
nonprofit mail that will exist during the interim period beginning July
1, 1996.
Accordingly, the following units of the DMM would be eliminated if
the Postal Service's proposal is adopted, having been established
solely to contain former general standards that are applicable only to
nonprofit rate categories during the interim period beginning July 1:
E239, E249, E639, E649, L001, L897, L898, L899, M690, M692, M693, M695,
M696, M697, M698, M890, M891, M892, M893, M894, M895, M896, M897, and
M898. Sections of other units would also be eliminated for the same
reason, as described in the detailed text below.
The DMM text presented below reflects other organizational
revisions that do not constitute substantive changes: E621 through E625
are consolidated into E620; E631 through E634 are consolidated into
E630; and E641 is redesignated as E640.
The proposed rates described below in the revisions to DMM module R
are as shown in the Postal Service's Request, currently pending before
the Postal Rate Commission.
As shown in the DMM standards below, the ``breakpoint'' for
Nonprofit Standard Mail is also amended, based on the rates proposed in
Docket No. MC96-2. Standard Mail (A) is subject to postage at either a
minimum rate per piece or a compound rate consisting of a flat piece
charge and a pound charge that varies according to the weight of the
piece, whichever is higher. The breakpoint is the calculated piece
weight at or below which the piece is subject to the minimum per piece
rate; above it, the piece/pound rate must be paid. Because the
breakpoint is based on the mathematical relationship of specific rate
elements, it must be adjusted whenever rates are changed. Moreover,
because the heaviest Standard Mail (A) breakpoint was adopted as the
maximum weight for automation First-Class Mail and Periodicals ``heavy
letter'' pieces, the standards below (C810.2.3f) reflect a decrease of
0.0976 ounce in that weight (from the current 3.4383 ounces to the
proposed 3.3407 ounces).
The Postal Service is also proposing to revise the current standard
that prohibits the use of certain nonpaper, plastic-like materials
(such as spun-bonded olefin) that do not accept the water-based ink
used by the Postal Service to spray barcodes on mail. The current
prohibition applies to pieces claimed at ZIP+4 rates, but ZIP+4 rates
were eliminated for First-Class Mail, Regular Periodicals, and Regular
Standard Mail in MC95-1, and a comparable proposal is advanced in MC96-
2 for Preferred Periodicals and Nonprofit Standard Mail. Nonetheless,
the Postal Service remains interested in optimizing its ability to
``upgrade'' (i.e., spray a barcode on) that volume of customer mail
that was formerly prepared to qualify for the ZIP+4 rates (e.g.,
compatible with automated address recognition and automated processing)
and that will not hereafter be barcoded before entry into the
mailstream. For that reason, the implementing standards for MC95-1 (and
those proposed below for MC96-2) prescribe simpler preparation
standards for ``upgradable'' mail than for other nonupgradable pieces.
Because the Postal Service seeks to barcode this mail by means similar
to those used for ZIP+4 rate mail, the Postal Service proposes to
continue to ban the use of certain nonpaper envelope materials for
``upgradable'' mail as it does now for ZIP+4 rate pieces. This ban is
represented by the revision to C830.6.2 shown below.
All references to DMM sections shown in this proposed rule are
based not on current Domestic Mail Manual Issue 49 but on the
redesignations and revisions of the DMM published in the Federal
Register on March 12, 1996 (61 FR 10068-10217), and scheduled for
release as DMM Issue 50 (July 1, 1996). The rates shown in DMM module R
below are the step 4 rates proposed in the Postal Service's MC96-2
request and, as such, are subject to change.
Although exempt from the notice and comment requirements of the
Administrative Procedure Act (5 U.S.C. 553 (b), (c)) regarding proposed
rulemaking by 39 U.S.C. 410(a), the Postal Service invites comments on
the following proposed revisions of the DMM, incorporated by reference
in the Code of Federal Regulations. See 39 CFR part 111.
PART 111--[AMENDED]
1. The authority citation for 39 CFR part 111 continues to read as
follows:
Authority: 5 U.S.C. 552(a); 39 U.S.C. 101, 401, 403, 404, 3001-
3011, 3201-3219, 3403-3406, 3621, 3626, 5001.
[[Page 32607]]
2. Revise the following sections of the Domestic Mail Manual as set
forth below:
A ADDRESSING
A000 Basic Addressing
A010 General Addressing Standards
* * * * *
4.0 RETURN ADDRESS
* * * * *
[Revise the heading and text of 4.5 to read as follows:]
4.5 Upgradable Mail
The return address on upgradable mail must be outside the OCR read
area. If placed on the front of the mailpiece, the return address must
be in the top left corner. It must extend no farther than half the
length of the mailpiece from the left edge and no lower than one-third
the height of the mailpiece from the top edge (see Exhibit 4.5).
* * * * *
A800 Addressing for Automation
1.0 ACCURACY
1.1 Basic Standards
[Revise 1.1 to read as follows:]
To qualify for automation rates, addresses must be sufficiently
complete to enable matching to the current USPS ZIP+4 File when used
with current CASS-certified address matching software. Standardized
address elements are not required.
* * * * *
[Revise the heading of A900 to read as follows:]
A900 Customer Support
* * * * *
A950 Coding Accuracy Support System (CASS)
* * * * *
3.0 DATE OF ADDRESS MATCHING AND CODING
3.1 Updating Standards
[Amend 3.1 by revising the second sentence to read as follows:]
* * * Coding must be done within 90 days before the mailing date
for all carrier route mailings and within 180 days before the mailing
date for all non-carrier route automation rate mailings. * * *
* * * * *
C CHARACTERISTICS AND CONTENT
* * * * *
C800 Automation-Compatible Mail
C810 Letters and Cards
* * * * *
2.0 DIMENSIONS
* * * * *
2.3 Weight
[Revise 2.3 to read as follows:]
Maximum weight limits are:
a. 2.5 ounces: upgradable Presorted First-Class Mail and upgradable
nonautomation Standard Mail.
b. 3 ounces: automation First-Class Mail, automation Periodicals,
and automation Standard Mail.
c. 3.3062 ounces: automation Enhanced Carrier Route heavy letters,
subject to 7.5.
d. 3.3087 ounces: automation Regular Standard Mail heavy letters,
subject to 7.5.
e. 3.3384 ounces: automation Nonprofit Enhanced Carrier Route heavy
letters, subject to 7.5.
f. 3.3407 ounces: automation First-Class Mail, automation
Periodicals, and automation Nonprofit Standard Mail heavy letters,
subject to 7.5.
* * * * *
8.0 ENCLOSED REPLY CARDS AND ENVELOPES
8.1 Basic Standard
[Revise 8.1 to read as follows:]
Effective January 1, 1997 (or March 1, 1997, for Preferred
Periodicals and Nonprofit Standard Mail), all letter-size reply cards
and envelopes (business reply, courtesy reply, and metered reply mail)
provided as enclosures in automation First-Class Mail, automation
Periodicals, and automation Standard Mail (A), and addressed for return
to a domestic delivery address, must meet the applicable standards in
1.0 through 7.0, bear a facing identification mark (FIM) meeting the
standards in 8.2, and bear the correct delivery point barcode (or, for
business reply mail (BRM), the correct ZIP+4 barcode) for the delivery
address on the reply piece as defined by the USPS and subject to the
barcode standards in C840. Mailers must certify that these standards
have been met when the corresponding mail (in which the reply pieces
are enclosed) is presented to the USPS. BRM pieces must also meet the
applicable standards in S922.
* * * * *
C830 OCR Standards
* * * * *
6.0 USPS WATER-BASED BARCODE INK
* * * * *
6.2 Nonpaper Materials
[Revise 6.2 to read as follows:]
Certain nonpaper, plastic-like materials (such as spun-bonded
Olefin) are not acceptable for upgradable pieces unless approved by
USPS Engineering.
* * * * *
[Revise the heading of C840 to read as follows:]
C840 Barcoding Standards
* * * * *
2.0 BARCODE LOCATION--LETTER-SIZE PIECES
2.1 Barcode Clear Zone
[Amend 2.1 by replacing the term ``upgradable Regular Standard Mail''
with ``upgradable Standard Mail (A)'' in the first sentence to read as
follows:]
Each piece in an automation rate mailing and each piece of
upgradable Presorted First-Class Mail or upgradable Standard Mail (A)
must have a barcode clear zone unless the piece bears a DPBC in the
address block. * * *
2.2 General Standards
[Replace 2.2, 2.2a, 2.2b, and 2.2c with new 2.2 to read as follows:]
In automation rate mailings, pieces weighing 3 ounces or less may
bear a DPBC either in the address block or in the barcode clear zone;
pieces weighing more than 3 ounces (up to the maximum weight permitted
by C810) must bear a DPBC in the address block.
* * * * *
[Revise the heading of 8.0 to read as follows:]
8.0 ZIP+4 OR 5-DIGIT BARCODES
8.1 Automation Pieces
[Replace 8.1, 8.1a, 8.1b, and 8.1c with new 8.1 to read as follows:]
Except under 8.3, letter-size pieces in automation rate mailings
may not bear a 5-digit or ZIP+4 barcode in the lower right corner
(barcode clear zone); such pieces may bear a 5-digit or ZIP+4 barcode
in the address block only if a DPBC appears in the lower right corner.
Except under 8.3, flat-size pieces may not bear a 5-digit barcode.
* * * * *
8.3 Temporary Exception to Barcoding
[Revise 8.3 to read as follows:]
Until January 1, 1997, up to 10% of the pieces in an automation
Periodicals mailing of flat-size pieces may be prepared with only a 5-
digit barcode (subject to C840); and up to 10% of the pieces in an
automation Periodicals mailing of letter-size pieces may be prepared
without a barcode or with only a ZIP+4 barcode (subject to C840).
Pieces within this 10% allowance must be combined and presorted with
the rest
[[Page 32608]]
of the mailing, with postage paid at the applicable nonautomation
Periodicals rate and supported by documentation under P012.
* * * * *
E ELIGIBILITY
* * * * *
E100 First-Class Mail
* * * * *
E140 Automation Rates
1.0 BASIC STANDARDS
* * * * *
1.5 Enclosed Reply Cards and Envelopes
Effective January 1, 1997, all letter-size reply cards and
envelopes (business reply, courtesy reply, and metered reply mail)
provided as enclosures in automation First-Class Mail must meet the
standards in C810 for enclosed reply cards and envelopes. Mailers must
certify that this standard has been met when the corresponding mail (in
which the reply pieces are enclosed) is presented to the USPS.
* * * * *
E200 Periodicals
E210 Basic Standards
E211 All Periodicals
* * * * *
14.0 BASIC RATE ELIGIBILITY
* * * * *
[Revise the heading of 14.3 to read as follows:]
14.3 Adjustments and Discounts
[Replace 14.3, 14.3a, 14.3b, 14.3c, and 14.3d with new 14.3 to read as
follows:]
Postage for Periodicals is reduced by all applicable adjustments
and discounts. The nonadvertising adjustment applies to the outside-
county piece rate charges and is computed under P013. Presort and
automation discounts are available under E230 and E240, respectively.
Destination entry discounts are available under E250 for copies entered
at specific USPS facilities.
* * * * *
E230 Nonautomation Rates
[Remove E239 and redesignate E231 as E230.]
1.0 GENERAL INFORMATION
1.1 Standards
[Amend 1.1 by replacing the reference ``M210'' with ``M200'' to read as
follows:]
The standards for presort rates are in addition to the basic
standards for Periodicals in E210, the standards for other rates or
discounts claimed, and the applicable preparation standards in M200,
M810, or M820. Not all combinations of presort level, automation, and
destination entry discounts are permitted.
* * * * *
2.0 CARRIER ROUTE RATES
* * * * *
2.2 Eligibility
[Amend 2.2 by replacing the reference ``M210'' with ``M200'' in the
introductory text to read as follows:]
Preparation to qualify eligible pieces for carrier route rates is
optional and is subject to M200. Carrier route sort need not be
performed for all carrier routes in a 5-digit area. Specific rate
eligibility is subject to these standards:
* * * * *
3.0 3/5 RATES
[Amend 3.0 by revising the introductory text to read as follows:]
Subject to M200, 3/5 rates apply to pieces not claimed at in-county
rates, as follows:
* * * * *
4.0 BASIC RATES
[Revise 4.0 to read as follows:]
Basic rates apply to pieces prepared under M200 but not claimed at
Carrier Route or 3/5 rates.
[Redesignate current 5.0 and 6.0 as 6.0 and 7.0, respectively; add new
5.0 to read as follows:]
5.0 IN-COUNTY RATES
In-county Basic rates apply to all pieces eligible for in-county
rates that are not also eligible under 2.0 for in-county Carrier Route
rates.
* * * * *
E240 Automation Rates
[Remove E249 and redesignate E241 as E240.]
1.0 BASIC STANDARDS
1.1 All Pieces
[Amend 1.1 by revising the introductory text to read as follows:]
All pieces in an automation Periodicals mailing must:
* * * * *
1.2 Enclosed Reply Cards and Envelopes
[Revise 1.2 to read as follows:]
Effective January 1, 1997 (or March 1, 1997, for Preferred
Periodicals), all letter-size reply cards and envelopes (business
reply, courtesy reply, and metered reply mail) provided as enclosures
in automation Periodicals must meet the standards in C810 for enclosed
reply cards and envelopes. Mailers must certify that this standard has
been met when the corresponding mail (in which the reply pieces are
enclosed) is presented to the USPS.
1.3 Temporary Exception to Barcoding
[Revise 1.3 to read as follows:]
Until January 1, 1997, up to 10% of the pieces in an automation
Periodicals mailing of flat-size pieces may be prepared with only a 5-
digit barcode (subject to C840); and up to 10% of the pieces in an
automation Periodicals mailing of letter-size pieces may be prepared
without a barcode or with only a ZIP+4 barcode (subject to C840).
Pieces within this 10% allowance must be combined and presorted with
the rest of the mailing, with postage paid at the applicable
nonautomation Periodicals rate and supported by documentation under
P012.
* * * * *
E600 Standard Mail
E610 Basic Standards
* * * * *
E612 Additional Standards for Standard Mail (A)
* * * * *
4.0 BULK RATES
* * * * *
4.2 Minimum Per Piece Rates
[Revise 4.2 to read as follows:]
The minimum per piece rates (i.e., the minimum postage that must be
paid for each piece) apply to Enhanced Carrier Route rate pieces
weighing no more than 0.2066 pound rounded (3.3062 ounces rounded);
Regular nonautomation and automation rate pieces weighing no more than
0.2068 pound rounded (3.3087 ounces rounded); Nonprofit Enhanced
Carrier Route rate pieces weighing no more than 0.2087 pound rounded
(3.3384 ounces rounded); and Nonprofit nonautomation and automation
rate pieces weighing no more than 0.2088 pound rounded (3.3407 ounces
rounded). The base postage rate applies to pieces meeting minimum
preparation standards (e.g., Basic rate) and may be reduced if
additional standards are met. In applying the minimum per piece rates,
mail is categorized as either letters or other than letters, based on
whether the mail meets the letter-size standard in C050. That standard
disregards address placement, except that, for automation rates, mail
may be assigned
[[Page 32609]]
to the other than letters category based on the standards in C820.
Address placement is also used to apply the aspect ratio standard in
C810 to letter-size automation rates.
* * * * *
4.7 Annual Fees
[Replace 4.7, 4.7a, and 4.7b with new 4.7 to read as follows:]
Bulk rate Standard Mail (A) is subject to an annual mailing fee
once each 12-month period. The fee may be paid in advance only for the
next year and only during the last 30 days of the current service
period. The fee charged is that in effect on the date of payment. Each
mailer who enters mail at bulk rates paid with meter or precanceled
stamps must pay an annual bulk mailing fee at each post office of
mailing; a mailer paying this fee may enter clients' mail as well as
the mailer's own. The mailer whose permit imprint appears on pieces in
a mailing paid with a permit imprint must show that permit number on
the postage statement and must pay the annual bulk mailing fee for that
permit; this fee is in addition to the fee for an application to use
permit imprints.
* * * * *
4.9 Preparation
[Amend 4.9 by revising the introductory text and 4.9c to read as
follows:]
Each bulk rate mailing is subject to these general standards:
* * * * *
c. The same mailing may not contain both automation and
nonautomation rate pieces.
* * * * *
E620 Nonautomation Nonpresort Rates
[Redesignate E621 as E620.1.0; revise to read as follows:]
1.0 SINGLE-PIECE STANDARD MAIL (A)
[Redesignate E621.1.1 through 1.6 as E620.1.1 through 1.6,
respectively, and revise internal references accordingly; no other
change in text.]
[Redesignate E622 as E620.2.0; revise to read as follows:]
2.0 PARCEL POST
[Redesignate chart under 2.1 as Exhibit 2.4 and revise redesignated 2.1
to read as follows:]
2.1 Basic Standards
Any Standard Mail (B) matter may be mailed at parcel post rates,
subject to the basic standards in E611 and E613.
[Redesignate E622.1.2 and 1.3 as E620.2.2 and 2.3, respectively.]
* * * * *
[Redesignate E622.2.0, 3.0, and 4.0 as E620.2.4, 2.5, and 2.6,
respectively, and revise internal references accordingly; no other
change in text.]
2.4 Rate Eligibility
[Revise redesignated E620.2.4 to read as follows:]
Parcel post rates are based on zones; on whether a parcel is mailed
and delivered within the service area of the same bulk mail center
(BMC), auxiliary service facility (ASF), or other designated service
area (as shown in Exhibit 2.4); and on the weight of the parcel.
Specific rates and discounts are subject to these additional standards:
[Redesignate E622.2.1 through 2.5 as E620.2.4a through 2.4e,
respectively, and revise internal references accordingly; no other
change in text.]
* * * * *
2.5 Nonmachinable Surcharge
[Revise redesignated E620.2.5 to read as follows:]
The nonmachinable surcharge applies only to the items listed in
2.5a through 2.5i if mailed at the inter-BMC/ASF parcel post rates. The
surcharge does not apply to those items or to other matter mailed at
another Standard Mail (B) rate or if the mailer paid the special
delivery or special handling fee. The nonmachinable surcharge applies
to items that meet any of these standards:
[Remove the introductory text of E622.3.2 and redesignate E622.3.2a
through 3.2i as E620.2.5a through 2.5i, respectively.]
* * * * *
2.6 Fees
[Revise redesignated E620.2.6 to read as follows:]
Parcel post is subject to these fees, as applicable:
[Redesignate E622.4.1 and 4.2 as E620.2.6a and 2.6b, respectively.]
* * * * *
[Redesignate E623 as E620.3.0.]
3.0 BOUND PRINTED MATTER
[Redesignate E623.1.1 through 1.4 as E620.3.1 through 3.4,
respectively; no other change in text.]
[Redesignate E624 as E620.4.0.]
4.0 SPECIAL STANDARD MAIL
[Redesignate E624.1.1 through 1.4 as E620.4.1 through 4.4,
respectively; no other change in text.]
[Redesignate E625 as E620.5.0.]
5.0 LIBRARY MAIL
[Redesignate E625.1.1 through 1.7 as E620.5.1 through 5.7,
respectively; no other change in text.]
E630 Nonautomation Presort Rates
[Remove E639; redesignate E631 through E634 as E630.1.0 through 4.0,
respectively, and revise as follows:]
1.0 REGULAR AND NONPROFIT STANDARD MAIL
[Redesignate E631.1.0 through 3.0 as E630.1.1 through 1.3,
respectively; in redesignated 1.1 and 1.2, replace the term ``Regular
Standard Mail'' with ``Regular or Nonprofit Standard Mail''; in
redesignated 1.3, replace the term ``Regular rates'' with ``Regular and
Nonprofit rates''; no other change in text.]
2.0 ENHANCED CARRIER ROUTE STANDARD MAIL
[Redesignate E632.1.1 through 1.7 as E630.2.1 through 2.7,
respectively; in redesignated 2.3, replace the reference ``E641'' with
``E640''; redesignate E632.2.1 and 2.2 as E630.2.8 and 2.9,
respectively; revise the heading of redesignated 2.8 to read as ``Basic
Rates''; in redesignated 2.9, replace the reference ``1.6 and 1.7''
with ``2.6 and 2.7''; no other change in text.]
3.0 BULK BOUND PRINTED MATTER
[Redesignate E633.1.1 and 1.2 as E630.3.1 and 3.2, respectively; in
redesignated 3.1, replace the phrase ``basic standards in E623'' with
``basic standards for bound printed matter in E620''; no other change
in text.]
4.0 PRESORTED SPECIAL STANDARD MAIL
[Redesignate E634.1.0 and 2.1 through 2.5 as E630.4.1 and 4.2 through
4.6, respectively; no change in text.]
E640 Automation Rates
[Remove E649; redesignate E641 as E640; in 1.1, 1.1b, and 1.2, replace
the term ``Regular Standard Mail'' with ``Regular or Nonprofit Standard
Mail''; in 1.3, replace the term ``Regular automation rates'' with
``Automation rates''; in 1.4, replace the term ``Regular automation
rates'' with ``Automation rates.'']
[Revise the heading of 1.0 to read as follows:]
1.0 REGULAR AND NONPROFIT RATES
1.1 All Pieces
[Amend 1.1 by revising the introductory text and 1.1b to read as
follows:] All pieces in an automation
[[Page 32610]]
rate Regular or Nonprofit Standard mailing must:
* * * * *
b. Be part of a single mailing of at least 200 pieces or 50 pounds
of pieces of automation rate Standard Mail (Regular and Nonprofit
mailings must meet separate minimum volumes).
* * * * *
1.2 Enclosed Reply Cards and Envelopes
[Revise 1.2 to read as follows:]
Effective January 1, 1997 (or March 1, 1997, for Nonprofit Standard
Mail), all letter-size reply cards and envelopes (business reply,
courtesy reply, and metered reply mail) provided as enclosures in
automation Regular or Nonprofit Standard Mail must meet the standards
in C810 for enclosed reply cards and envelopes. Mailers must certify
that this standard has been met when the corresponding mail (in which
the reply pieces are enclosed) is presented to the USPS.
* * * * *
[Revise the heading of 2.0 to read as follows:]
2.0 ENHANCED CARRIER ROUTE RATES
2.1 All Pieces
[Amend 2.1 by revising the introductory text and 2.1b to read as
follows:]
All pieces in an automation rate Enhanced Carrier Route Standard
mailing (available for letters only) must:
* * * * *
b. Be part of a single mailing of at least 200 pieces or 50 pounds
of pieces of automation rate Enhanced Carrier Route Standard Mail
(Regular and Nonprofit mailings must meet separate minimum volumes).
* * * * *
2.4 Enclosed Reply Cards and Envelopes
[Revise 2.4 to read as follows:]
Effective January 1, 1997 (or March 1, 1997, for Nonprofit Enhanced
Carrier Route Standard Mail), all letter-size reply cards and envelopes
(business reply, courtesy reply, and metered reply mail) provided as
enclosures in automation Enhanced Carrier Route Standard Mail must meet
the standards in C810 for enclosed reply cards and envelopes. Mailers
must certify that this standard has been met when the corresponding
mail (in which the reply pieces are enclosed) is presented to the USPS.
* * * * *
E650 Destination Entry
* * * * *
E652 Parcel Post
[In 1.4, replace the reference ``E622'' with ``E620''; no other change
in text.]
E670 Nonprofit Standard Mail
1.0 BASIC STANDARDS
1.1 Organization Eligibility
[Amend 1.1 by adding the qualifying phrase ``i.e., all nonautomation
and automation Nonprofit rates'' to the end of the section to read as
follows:]
Only organizations that meet the standards in 2.0 or 3.0 and that
have received specific authorization from the USPS may mail eligible
matter at the Nonprofit Standard Mail rates, i.e., all nonautomation
and automation Nonprofit rates.
* * * * *
L LABELING LISTS
[Remove L001, L897, L898, and L899.]
M MAIL PREPARATION AND SORTATION
M000 General Preparation Standards
M010 Mailpieces
M011 Basic Standards
[Revise the heading of 1.0 to read as follows:]
1.0 TERMS AND CONDITIONS
* * * * *
1.2 Presort Levels
[Amend 1.2 by revising 1.2d, 1.2h, and 1.2i to read as follows:]
Terms used for presort levels are defined as follows:
* * * * *
d. 3-digit: the ZIP Code in the delivery address on all pieces
begins with the same three digits (see L002, Column A).
* * * * *
h. SCF: the separation includes pieces for two or more 3-digit
areas served by the same SCF (see L005), except that, where required or
permitted by standard, mail for a single 3-digit area may be prepared
in an SCF separation when no mail for other 3-digit ZIP Code areas is
available.
i. ADC/AADC: all pieces are addressed for delivery in the service
area of the same ADC or AADC (see L004 or L801).
* * * * *
1.4 Mailing
[Revise 1.4 to read as follows:]
A mailing is a group of pieces within the same class of mail and
processing category that may be sorted together under the applicable
standards. Other specific standards may define whether separate
mailings may be combined, palletized, reported, or deposited together.
The following types of mail may not be part of the same mailing despite
being in the same class and processing category: automation and
nonautomation mail; automation rate Enhanced Carrier Route and other
mail; any combination of Enhanced Carrier Route, Regular, Nonprofit,
and/or Nonprofit Enhanced Carrier Route Standard Mail.
* * * * *
M013 Optional Endorsement Lines
1.0 USE
1.1 Basic Standards
[Amend 1.1 by removing in the chart the entries for Optional City and
Working; by revising the parenthetical following the first entry for
Carrier Route to read as ``(Periodicals)''; by revising the
parenthetical following the entry for SCF to read as ``(bound printed
matter)''; and by removing the parenthetical ``(Except Preferred
Periodicals and Nonprofit Standard Mail)'' following the entries for
AADC and Mixed AADC.]
* * * * *
1.4 Rate Markings
[Amend 1.4 by replacing the term ``automation Regular Standard Mail''
with ``automation Regular or automation Nonprofit Standard Mail.'']
* * * * *
M014 Carrier Route Information Lines
1.0 BASIC INFORMATION
[Amend 1.0 by replacing the terms ``carrier route and Level I/K
Periodicals'' with ``Carrier Route Periodicals.'']
* * * * *
M020 Packages and Bundles
[Remove 2.0; redesignate 3.0 and 4.0 as 2.0 and 3.0, respectively;
revise the heading of redesignated 2.0 as ``Additional Standards--
First-Class Mail, Periodicals, and Standard Mail (A)''; amend
redesignated 2.1c by replacing the terms ``Regular Standard Mail'' with
``Standard Mail (A)'' and ``Regular Periodicals'' with ``Periodicals'';
no other change in text.]
M030 Containers
M031 Labels
* * * * *
4.0 PALLET LABELS
* * * * *
4.8 Delivery Unit, SCF, DDU, and DSCF Rates
[Revise 4.8 to read as follows:]
If a 5-digit, 3-digit, or SCF pallet contains copies claimed at
Periodicals
[[Page 32611]]
delivery unit and SCF zone rates, or Standard Mail DDU and DSCF rates,
as applicable, the contents line of the pallet label must show the
designation DDU/SCF, after the description of the contents.
* * * * *
M032 Barcoded Labels
1.0 BARCODED TRAY LABELS
1.1 Standards
[Revise 1.1 to read as follows:]
Effective January 1, 1997, barcoded tray labels are required for
all mailings of automation rate First-Class Mail flat-size pieces and
automation rate First-Class Mail, Periodicals, and Standard Mail (A)
letter-size pieces. Barcoded tray labels may be used before that date
and may be used for other trayed mail. Mailer-produced barcoded tray
labels must meet the standards below. Revisions to preprinted barcoded
labels (e.g., handwritten changes) are not permitted.
* * * * *
2.0 BARCODED SACK LABELS
2.1 Standards
[Revise 2.1 to read as follows:]
Effective January 1, 1997, barcoded sack labels are required for
all mailings of automation rate Periodicals and Standard Mail (A) flat-
size pieces prepared in sacks. Barcoded sack labels may be used before
that date and may be used for other sacked mail. Mailer-produced
barcoded sack labels must meet the standards below. Revisions to
preprinted barcoded labels (e.g., handwritten changes) are not
permitted.
* * * * *
M033 Sacks and Trays
[In 1.2a, replace the terms ``Regular Periodicals, and Regular and
Enhanced Carrier Route Standard Mail (A)'' with ``Periodicals, and bulk
rate Standard Mail (A)''; remove the last sentence of 1.2f; in 1.4,
remove the phrase and clause ``except for Preferred Periodicals and
Nonprofit Standard Mail, which are covered in 3.0 and 4.0''; in 1.7,
replace the phrase ``Except for Nonprofit Standard and Preferred
Periodicals mailings, after'' with ``After''; revise the heading of 2.0
to read as ``First-Class Mail, Periodicals, and Bulk Rate Standard Mail
(A)''; remove 3.0 and 4.0; no other change in text.]
M040 Pallets
* * * * *
M045 Palletized Mailings
* * * * *
2.0 PACKAGES
* * * * *
2.2 Size--Periodicals
[Amend 2.2 by replacing the references ``M210 and M290'' in 2.2a with
``M200'' to read as follows:]
Package size: Six-piece minimum, 20-pound maximum, except that:
a. Firm packages may contain as few as two copies of a publication
and do not have to be consolidated into bundles with other packages to
the same 5-digit destination. A firm ``package'' may be one piece for
presort standards (see M200).
* * * * *
8.0 MIXED RATE LEVELS ON PALLETS--NONPROFIT STANDARD MAIL
* * * * *
8.2 Authorizations
[Amend 8.2 by revising the first sentence to read as follows:]
Mailers must obtain a USPS authorization before commingling
nonautomation, automation, or Enhanced Carrier Route Nonprofit Standard
Mail on pallets. * * *
* * * * *
8.4 Documentation
[Replace 8.4, 8.4a, and 8.4b with new 8.4 to read as follows:]
At the time of mailing, the mailer must provide standardized
documentation, as required by the standards for the rate claimed, that
includes pallet numbers to facilitate postal verification of the
corresponding mail. When requested, the mailer must present pallets
selected by USPS employees for verification.
8.5 Additional Pallet Standards
[Remove 8.5c and redesignate 8.5d as 8.5c.]
* * * * *
[Revise the heading of M050 to read as follows:]
M050 Delivery Sequence
[Amend 1.1 by replacing the references ``M290 or M693'' with ``M200 or
M620''; no other change in text.]
M070 Mixed Classes
* * * * *
M073 Combined Mailings of Standard Mail Machinable Parcels
[Amend 1.1 by replacing the term ``Regular Standard Mail (A)'' with
``Standard Mail (A).'']
* * * * *
M200 Periodicals (Nonautomation)
[Remove M290; redesignate M210 as M200 and revise internal references
accordingly; amend 1.1, 1.2, and 2.3 (heading and text) by replacing
the term ``Regular Periodicals'' with ``Periodicals.'']
* * * * *
M600 Standard Mail (Nonautomation)
[Revise the heading of M610 to read as follows:]
M610 Single-Piece and Nonautomation Standard Mail (A)
* * * * *
[Revise the heading of 2.0 to read as follows:]
2.0 BASIC STANDARDS--NONAUTOMATION RATES
2.1 All Mailings
[Amend 2.1 by revising the introductory text, 2.1a, and 2.1e to read as
follows:]
All nonautomation (Basic and 3/5) rate mailings are subject to
these general standards (automation rate Standard Mail must be prepared
under M810 or M820, as applicable):
a. Each mailing must meet the applicable standards in E630 and in
M010, M020, and M820.
* * * * *
e. Subject to M012, all pieces eligible for and claimed at
Nonprofit rates must be marked ``Nonprofit Organization'' (or
``Nonprofit Org.'' or ``Nonprofit''); all other pieces must be marked
``Bulk Rate'' (or ``Blk. Rt.''). In addition, pieces may be marked
``Single-Piece'' (or ``SNGLP'') under P600 to correct an incorrect rate
marking.
* * * * *
2.3 Exception--Standard Mail (A)
[In 2.3, replace the terms ``Regular Standard Mail'' with ``Standard
Mail'' and ``Regular nonletter nonautomation'' with ``nonletter
nonautomation.'']
* * * * *
[Revise the heading of 3.0 to read as follows:]
3.0 BASIC PREPARATION--NONAUTOMATION RATE LETTER-SIZE PIECES
* * * * *
[Revise the heading of 4.0 to read as follows:]
4.0 OPTIONAL PREPARATION--UPGRADABLE NONAUTOMATION RATE LETTER-SIZE
PIECES
* * * * *
[Revise the heading of 5.0 to read as follows:]
[[Page 32612]]
5.0 PREPARATION--NONAUTOMATION RATE FLAT-SIZE PIECES AND ALL IRREGULAR
PARCELS
* * * * *
[Revise the heading of 6.0 to read as follows:]
6.0 MACHINABLE PARCELS
* * * * *
[Revise the heading of 7.0 to read as follows:]
7.0 BEDLOADED BUNDLES OF NONAUTOMATION RATE FLAT-SIZE PIECES
[Amend 7.1 by replacing the term ``Regular nonautomation rate Standard
Mail (A)'' with ``nonautomation rate Standard Mail (A)''; no other
change in text.]
M620 Enhanced Carrier Route Standard Mail
1.0 BASIC STANDARDS
1.1 All Mailings
[Amend 1.1 by revising 1.1a and 1.1e to read as follows:]
All nonautomation rate Enhanced Carrier Route mailings are subject
to these general standards (automation rate Enhanced Carrier Route
mailings must be prepared under M810):
a. Each mailing must meet the applicable standards in E630 and in
M010, M020, and M030.
* * * * *
e. Subject to M012, all pieces eligible for and claimed at
Nonprofit rates must be marked ``Nonprofit Organization'' (or
``Nonprofit Org.'' or ``Nonprofit''); all other pieces must be marked
``Bulk Rate'' (or ``Blk. Rt.''). In addition, Basic, High Density, and
Saturation rate pieces must each be marked ``ECRLOT,'' ``ECRWSH,'' or
``ECRWSS,'' respectively. Pieces not claimed at the corresponding rate
must not be marked ``ECRLOT,'' ``ECRWSH,'' or ``ECRWSS'' unless paid at
single-piece rate or a corrective single-piece rate marking is applied
under P600.
* * * * *
1.4 Exception--Standard Mail (A)
[Revise 1.4 to read as follows:]
When a Standard Mail (A) mailing job could, by size, qualify for
Standard Mail automation rates as either letters or flats, if part of
the job is prepared as palletized flats at automation rates for flats,
the remainder may be prepared as palletized flats at Enhanced Carrier
Route rates and nonletter nonautomation rates if the number of
nonletter nonautomation rate pieces does not exceed 10% of the total
number of pieces in the entire mailing job.
* * * * *
5.0 RESIDUAL MAIL
[Amend 5.0 by replacing the term ``Regular Standard Mail rates'' with
``Regular or Nonprofit Standard Mail rates, as appropriate'' to read as
follows:]
Pieces not sorted under 2.0 and either 3.0 or 4.0 must be prepared
as a separate mailing at Regular or Nonprofit Standard Mail rates, as
appropriate.
* * * * *
[Remove M690, M692, M693, M695, M696, M697, and M698.]
M800 All Automation Mail
[Revise the heading of M810 to read as follows:]
M810 Letter-Size Mail
1.0 BASIC STANDARDS
1.1 Standards
[Amend 1.1 by replacing the term ``Regular Periodicals'' with
``Periodicals'' in the first sentence to read as follows:]
Letter-size automation rate First-Class Mail, Periodicals, and
Standard Mail (A) must be prepared under M810 and the eligibility
standards for the rate claimed. * * *
* * * * *
1.3 Marking
[Revise 1.3 to read as follows:]
Periodicals require no marking. Subject to M012, all pieces must be
marked ``AUTO'' (or ``AUTOCR'' for carrier route rate) and
``Presorted'' and ``First-Class'' if First-Class Mail; ``Nonprofit
Organization'' (or ``Nonprofit Org.'' or ``Nonprofit'') if eligible
Nonprofit Standard Mail; or ``Bulk Rate'' (or ``Blk. Rt.'') if other
Standard Mail. Pieces not claimed at an automation rate may not be
marked ``AUTO'' or ``AUTOCR'' unless single-piece rate postage is
affixed or a corrective single-piece rate marking is applied under P100
or P600.
* * * * *
1.5 Carrier Route
[Amend 1.5 by replacing the reference ``E641'' with ``E640.'']
* * * * *
[Revise the heading of M820 to read as follows:]
M820 Flat-Size Mail
1.0 BASIC STANDARDS
1.1 Standards
[Amend 1.1 by replacing the term ``Regular Periodicals'' with
``Periodicals'' in the first sentence to read as follows:]
Flat-size automation rate First-Class Mail, Periodicals, and
Standard Mail (A) must be prepared under M820 and the eligibility
standards for the rate claimed. * * *
* * * * *
1.4 Marking
[Revise 1.4 to read as follows:]
Periodicals require no marking. Subject to M012, all pieces must be
marked ``AUTO'' and ``Presorted'' and ``First-Class'' if First-Class
Mail; ``Nonprofit Organization'' (or ``Nonprofit Org.'' or
``Nonprofit'') if eligible Nonprofit Standard Mail; or ``Bulk Rate''
(or ``Blk. Rt.'') if other Standard Mail. Pieces not claimed at an
automation rate may not be marked ``AUTO'' unless single-piece rate
postage is affixed or a corrective single-piece rate marking is applied
under P100 or P600.
1.5 Exception--Standard Mail (A)
[Amend 1.5 by replacing the terms ``Regular Standard Mail'' with
``Standard Mail'' and ``Regular nonletter nonautomation'' with
``nonletter nonautomation'' to read as follows:]
When a Standard Mail (A) mailing job could, by size, qualify for
Standard Mail automation rates as either letters or flats, if part of
the job is prepared as palletized flats at automation rates for flats,
the remainder may be prepared as palletized flats at Enhanced Carrier
Route rates and nonletter nonautomation rates if the number of
nonletter nonautomation rate pieces does not exceed 10% of the total
number of pieces in the entire mailing job.
* * * * *
[Remove M890, M891, M892, M893, M894, M895, M896, M897, and M898.]
P POSTAGE AND PAYMENT METHODS
P000 Basic Information
P010 General Standards
P011 Payment
1.0 PREPAYMENT AND POSTAGE DUE
1.1 Prepayment Conditions
[Amend 1.1 by revising 1.1e to read as follows:]
The mailer is responsible for proper payment of postage. Postage on
all mail must be fully prepaid at the time of mailing, except as
specifically provided by standard for:
* * * * *
[[Page 32613]]
e. Keys and identification devices returned to owners (see E620).
* * * * *
P012 Documentation
* * * * *
[Revise the heading of 2.0 to read as follows:]
2.0 STANDARDIZED DOCUMENTATION--FIRST-CLASS MAIL, PERIODICALS, AND
STANDARD MAIL (A)
2.1 Basic Standard
[Amend 2.1 by replacing in the first sentence the terms ``Regular
Periodicals'' with ``Periodicals'' and ``Regular and Enhanced Carrier
Route Standard Mail'' with ``Standard Mail (A)'' to read as follows:]
For First-Class Mail, Periodicals, and Standard Mail (A), subject
to the standards for the rate claimed, documentation must be produced
by software certified under the USPS Presort Accuracy Validation and
Evaluation (PAVE) or Manifest Analysis and Certification (MAC)
programs, appropriate for the accompanying class of mail and rate
claimed, or must be prepared to meet the criteria for standardized
documentation in this section. * * *
2.2 Format and Content
[Amend 2.2 by revising the introductory text to read as follows:]
For First-Class Mail, Periodicals, and Standard Mail (A),
standardized documentation includes:
* * * * *
2.5 Combined and Copalletized Mailings
[Amend 2.5 by revising the introductory text to read as follows:]
For combined or copalletized mailings of Periodicals and Standard
Mail (A) prepared under M045, the listing must show the following
additional information:
* * * * *
[Remove 3.0; redesignate 4.0 as 3.0.]
* * * * *
P013 Rate Application and Computation
* * * * *
4.0 RATE APPLICATION--STANDARD MAIL (A)
* * * * *
4.3 Bulk Rates
[Revise 4.3 to read as follows:]
Bulk rates are based on the weight of the pieces and are applied
differently to pieces weighing less than or equal to a ``breakpoint''
(rounded to four decimal places) and those weighing more, as follows:
a. The appropriate minimum per piece rate applies to pieces
weighing 0.2066 pound (3.3062 ounces) or less (Enhanced Carrier Route
rates), 0.2068 pound (3.3087 ounces) or less (Regular rates), 0.2087
pound (3.3384 ounces) or less (Nonprofit Enhanced Carrier Route rates),
or 0.2088 pound (3.3407 ounces) or less (Nonprofit rates).
b. A rate determined by adding the appropriate fixed per piece
charge and the corresponding variable per pound charge (based on the
weight of the piece) applies to pieces weighing more than 0.2066 pound
(3.3062 ounces) (Enhanced Carrier Route rates), 0.2068 pound (3.3087
ounces) (Regular rates), 0.2087 pound (3.3384 ounces) (Nonprofit
Enhanced Carrier Route rates), or 0.2088 pound (3.3407 ounces)
(Nonprofit rates).
* * * * *
P014 Refunds and Exchanges
* * * * *
4.0 REFUND REQUESTS FOR EXCESS POSTAGE--AT TIME OF MAILING (``VALUE
ADDED REFUNDS'')
* * * * *
4.13 Standard Mail (A)
[Replace 4.13, 4.13a, 4.13b, and 4.13c with new 4.13 to read as
follows:]
If a value added refund request is submitted when a Standard Mail
(A) mailing is presented to the USPS, each piece must be letter-size,
weigh less than the applicable maximum weight for automation mail
prescribed in C810, be part of an automation rate mailing, and be
metered by the presenter or the presenter's customer at a 3/5
nonautomation rate or at any automation minimum per piece rate. Pieces
for each entry must be prepared as a separate mailing if the
destination entry rates are claimed.
* * * * *
P040 Permit Imprints
* * * * *
2.0 PREPARING PERMIT IMPRINTS
* * * * *
2.5 References to Expedited Handling
[Amend 2.5 by revising 2.5a to read as follows:]
Except for postcard-size mail and imprints placed on address
labels, permit imprints on bulk rate Standard Mail (A) bearing
references to expedited handling or delivery (e.g., ``Priority,''
``Express,'' ``Overnight'') must:
a. Show the words ``Bulk Rate'' or ``Nonprofit Organization'' (or
``Nonprofit Org.'' or ``Nonprofit'') more prominently than other words
in the imprint.
b. Have a clear space of at least \3/8\ inch around the entire
permit imprint.
* * * * *
4.0 FORMATS
4.1 Basic Standard
[Amend the Nonprofit Standard Mail examples in Exhibit 4.1b by
replacing the endorsement ``Carrier Route Presort'' with ``AUTOCR.'']
* * * * *
P600 Standard Mail
* * * * *
3.0 AUTOMATION RATES
3.1 Method
[Amend 3.1 by removing the parenthetical ``(including Nonprofit ZIP+4
and Barcoded rates)'' in the first sentence to read as follows:]
Postage on any mailing made at an automation rate must be paid with
meter stamps, permit imprints, or precanceled postage, under applicable
standards. * * *
* * * * *
P710 Manifest Mailing System (MMS)
* * * * *
3.0 KEYLINE
* * * * *
3.3 Rate Category Abbreviations
[Revise 3.3 and Exhibit 3.3b to read as follows:]
Keylines on First-Class Mail or bulk Standard Mail (A) may use only
the rate category abbreviations in Exhibit 3.3a or Exhibit 3.3b,
respectively. All pieces that qualify for more than one postage rate
must show each rate category abbreviation, separated by a ``/'' (slash)
(e.g., NV/DS).
* * * * *
Exhibit 3.3b--Rate Category Abbreviations--Standard Mail (A)
------------------------------------------------------------------------
Code Rate Category
------------------------------------------------------------------------
AV Automation 5-Digit [letters only].
AT Automation 3-Digit [letters only].
AF Automation 3/5 [flats only].
AB Automation Basic.
RA Regular 3/5.
RB Regular Basic.
EA Enhanced Carrier Route Automation Basic
[letters only].
EB Enhanced Carrier Route Basic.
EH Enhanced Carrier Route High Density.
[[Page 32614]]
ES Enhanced Carrier Route Saturation.
NV Nonprofit Automation 5-Digit [letters
only].
NT Nonprofit Automation 3-Digit [letters
only].
NF Nonprofit Automation 3/5 [flats only].
NB Nonprofit Automation Basic.
FA Nonprofit 3/5.
FB Nonprofit Basic.
PA Nonprofit Enhanced Carrier Route
Automation Basic [letters only].
PB Nonprofit Enhanced Carrier Route Basic.
PH Nonprofit Enhanced Carrier Route High
Density.
PS Nonprofit Enhanced Carrier Route
Saturation.
DB Destination Bulk Mail Center (DBMC).
DD Destination Delivery Unit (DDU).
DS Destination Sectional Center Facility
(DSCF).
SP Single-Piece Rate [when fewer than 200
pieces accompany automation rate mail].
------------------------------------------------------------------------
* * * * *
P760 First-Class or Standard Mail Mailings With Different Payment
Methods
* * * * *
2.0 POSTAGE
* * * * *
2.2 Metered Pieces--Standard Mail (A)
[Revise 2.2 to read as follows:]
Metered pieces in a combined mailing must bear postage at a
nonautomation presort or automation rate for which the pieces are
eligible. Additional postage due for metered pieces in a combined
mailing is deducted from the mailer's postage due advance deposit
account. Full postage must be affixed to accompanying single-piece rate
mail.
* * * * *
2.4 Precanceled Pieces -- Standard Mail (A)
[Revise 2.4 to read as follows:]
Pieces with precanceled stamps in a combined mailing must bear
postage in any denomination of precanceled stamp permitted in an
automation rate mailing. Nonprofit postage may appear only on pieces in
a Nonprofit rate mailing that are eligible for and claimed at a
Nonprofit rate. Additional postage due for precanceled stamp pieces in
a combined mailing is deducted from the mailer's postage due advance
deposit account. Full postage must be affixed to accompanying single-
piece rate mail.
* * * * *
R RATES AND FEES
* * * * *
R200 Periodicals
* * * * *
[Revise 2.0, 3.0, and 4.0 to read as follows:]
2.0 PREFERRED--IN-COUNTY
2.1 Pound Rates
Per pound or fraction:
------------------------------------------------------------------------
Zone Rate
------------------------------------------------------------------------
Delivery Unit................................................ $0.112
All Others................................................... 0.122
------------------------------------------------------------------------
2.2 Piece Rates
Per addressed piece:
------------------------------------------------------------------------
Letter-
size
Presort level Nonautomation Automation ----------
\1\ Flat-size
------------------------------------------------------------------------
Basic.......................... $0.081 $0.081 $0.081
3/5............................ ............. ............. 0.066
3-Digit........................ ............. 0.077 .........
5-Digit........................ ............. 0.064 .........
Carrier Route.................. 0.043 ............. .........
High Density................... 0.038 ............. .........
Saturation..................... 0.036 ............. .........
------------------------------------------------------------------------
\1\ Lower maximum weight limits apply: letter-size at 3 ounces (or
3.3407 ounces for heavy letters); flat-size at 16 ounces.
* * * * *
3.0 PREFERRED--NONPROFIT
3.1 Pound Rates
Per pound or fraction:
a. For the nonadvertising portion: $0.138.
b. For the advertising portion:
------------------------------------------------------------------------
Zone Rate
------------------------------------------------------------------------
Delivery Unit................................................ $0.169
SCF.......................................................... 0.190
1 & 2........................................................ 0.214
3............................................................ 0.224
4............................................................ 0.251
5............................................................ 0.292
6............................................................ 0.336
7............................................................ 0.388
8............................................................ 0.432
------------------------------------------------------------------------
3.2 Piece Rates
Per addressed piece:
------------------------------------------------------------------------
Automation \1\
---------------------
Presort level Nonautomation Letter-
size Flat-size
------------------------------------------------------------------------
Basic.............................. $0.216 $0.186 $0.192
3/5................................ 0.171 ......... 0.147
3-Digit............................ ............. 0.148 .........
5-Digit............................ ............. 0.148 .........
Carrier Route...................... 0.104 ......... .........
High Density....................... 0.097 ......... .........
Saturation......................... 0.083 ......... 1
------------------------------------------------------------------------
\1\ Lower maximum weight limits apply: letter-size at 3 ounces (or
3.3407 ounces for heavy letters); flat-size at 16 ounces.
* * * * *
4.0 PREFERRED--CLASSROOM
4.1 Pound Rates
Per pound or fraction:
a. For the nonadvertising portion: $0.110.
b. For the advertising portion:
------------------------------------------------------------------------
Zone Rate
------------------------------------------------------------------------
Delivery Unit................................................ $0.169
SCF.......................................................... 0.190
1 & 2........................................................ 0.214
3............................................................ 0.224
4............................................................ 0.251
5............................................................ 0.292
6............................................................ 0.336
7............................................................ 0.388
8............................................................ 0.432
------------------------------------------------------------------------
4.2 Piece Rates
Per addressed piece:
------------------------------------------------------------------------
Automation1
---------------------
Presort level Nonautomation Letter-
size Flat-size
------------------------------------------------------------------------
Basic.............................. $0.171 $0.154 $0.148
3/5................................ 0.128 ......... 0.113
3-Digit............................ ............. 0.118 .........
5-Digit............................ ............. 0.111 .........
Carrier Route...................... 0.090 ......... .........
High Density....................... 0.088 ......... .........
Saturation......................... 0.083 ......... .........
------------------------------------------------------------------------
\1\ Lower maximum weight limits apply: letter-size at 3 ounces (or
3.3407 ounces for heavy letters); flat-size at 16 ounces.
* * * * *
[Revise the heading of 5.0 to read as follows:]
5.0 PREFERRED--SCIENCE-OF-AGRICULTURE
* * * * *
R600 Standard Mail
* * * * *
[[Page 32615]]
[Revise 5.0 to read as follows:]
5.0 NONPROFIT
5.1 Letter-Size Minimum Per Piece Rates--Pieces 0.2088 lb. (3.3407
oz.) or Less
----------------------------------------------------------------------------------------------------------------
Nonautomation Automation \1\
Entry discount ----------------------------------------------------------------
Basic 3/5 Basic 3-Digit 5-Digit
----------------------------------------------------------------------------------------------------------------
None........................................... $0.132 $0.114 $0.099 $0.095 $0.082
DBMC........................................... 0.119 0.101 0.086 0.082 0.069
DSCF........................................... 0.114 0.096 0.081 0.077 0.064
DDU............................................ ........... ........... ........... ........... ...........
----------------------------------------------------------------------------------------------------------------
\1\ Pieces weighing over 3 ounces subject to additional standards.
5.2 Nonletter-Size Minimum Per Piece Rates--Pieces 0.2088 lb.
(3.3407 oz.) or Less
----------------------------------------------------------------------------------------------------------------
Nonautomation Automation \1\
Entry discount ---------------------------------------------------
Basic 3/5 Basic 3/5
----------------------------------------------------------------------------------------------------------------
None........................................................ $0.195 $0.143 $0.171 $0.119
DBMC........................................................ 0.182 0.130 0.158 0.106
DSCF........................................................ 0.177 0.125 0.153 0.101
DDU......................................................... ........... ........... ........... ...........
----------------------------------------------------------------------------------------------------------------
\1\ Available only for automation-compatible flats.
5.3 Piece/Pound Rates--Pieces More Than 0.2088 lb. (3.3407 oz.)
----------------------------------------------------------------------------------------------------------------
Nonautomation Automation \2\
Piece pound rate \1\ ---------------------------------------------------
Basic 3/5 Basic 3/5
----------------------------------------------------------------------------------------------------------------
Per Piece................................................... $0.100 $0.048 $0.076 $0.024
Per Pound (includes entry discount if applicable)........... Plus Plus Plus Plus
None........................................................ $0.455 $0.455 $0.455 $0.455
DBMC........................................................ 0.393 0.393 0.393 0.393
DSCF........................................................ 0.367 0.367 0.367 0.367
DDU......................................................... ........... ........... ........... ...........
----------------------------------------------------------------------------------------------------------------
\1\ Each piece is subject to both a piece rate and a pound rate.
\2\ Available only for automation-compatible flats.
[Redesignate 6.0 through 11.0 as 7.0 through 12.0, respectively, with
no change in text; add new 6.0 to read as follows:]
6.0 NONPROFIT ENHANCED CARRIER ROUTE
6.1 Letter-Size Minimum Per Piece Rates--Pieces 0.2087 lb. (3.3384
oz.) or Less
----------------------------------------------------------------------------------------------------------------
Nonautomation Automation
---------------------------------------------\1\-----
Entry discount High
Basic density Saturation Basic
----------------------------------------------------------------------------------------------------------------
None...................................................... $0.087 $0.081 $0.075 $0.079
DBMC...................................................... 0.074 0.068 0.062 0.066
DSCF...................................................... 0.069 0.063 0.057 0.061
DDU....................................................... 0.063 0.057 0.051 0.055
----------------------------------------------------------------------------------------------------------------
\1\ Pieces weighing over 3 ounces subject to additional standards.
[[Page 32616]]
6.2 Nonletter-Size Minimum Per Piece Rates--Pieces 0.2087 lb.
(3.3384 oz.) or Less
------------------------------------------------------------------------
High
Entry discount Basic density Saturation
------------------------------------------------------------------------
None.................................. $0.095 $0.088 $0.082
DBMC.................................. 0.082 0.075 0.069
DSCF.................................. 0.077 0.070 0.064
DDU................................... 0.071 0.064 0.058
------------------------------------------------------------------------
6.3 Piece/Pound Rates--Pieces More Than 0.2087 lb. (3.3384 oz.)
------------------------------------------------------------------------
High
Piece/pound rate \1\ Basic density Saturation
------------------------------------------------------------------------
Per Piece............................. $0.013 $0.006 $0.000
Per Pound (includes entry discount if
applicable).......................... Plus Plus Plus
None.................................. $0.393 $0.393 $0.393
DBMC.................................. 0.331 0.331 0.331
DSCF.................................. 0.305 0.305 0.305
DDU................................... 0.279 0.279 0.279
------------------------------------------------------------------------
\1\ Each piece is subject to both a piece rate and a pound rate.
* * * * *
An appropriate amendment to 39 CFR 111.3 to reflect these changes
will be published if the proposal is adopted.
Stanley F. Mires,
Chief Counsel, Legislative.
[FR Doc. 96-16026 Filed 6-21-96; 8:45 am]
BILLING CODE 7710-12-P
Complete official Federal Register PDF
FR Doc. 96-16024 Approval and Promulgation of Air Quality Implementation Plans; New Mexico; Supplement to the New Mexico State Implementation Plan To Control Air Pollution in Areas of Bernalillo County Designated Nonattainment
[Federal Register Volume 61, Number 122 (Monday, June 24, 1996)]
[Proposed Rules]
[Page 32385]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16024]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[NM-23-1-7101b; FRL-5500-8]
Approval and Promulgation of Air Quality Implementation Plans;
New Mexico; Supplement to the New Mexico State Implementation Plan To
Control Air Pollution in Areas of Bernalillo County Designated
Nonattainment
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The EPA proposes to approve a revision to the New Mexico State
Implementation Plan addressing nonattainment areas in Bernalillo
County. The purpose of proposing to approve this revision is to update
the narrative portion of the ``April 14, 1993, Supplement to the New
Mexico State Implementation Plan to Control Air Pollution in Area(s) of
Bernalillo County Designated Nonattainment'' (see the Federal Register
published on December 21, 1993) to reflect EPA's approval for lifting
the construction ban in Bernalillo County. In the final rules section
of this Federal Register, EPA is approving the State's State
Implementation Plan revision as a direct final rule without prior
proposal because the Agency views this as a noncontroversial revision
amendment and anticipates no adverse comments. A detailed rationale for
the approval is set forth in the direct final rule. If no adverse
comments are received in response to this proposed rule, no further
activity is contemplated in relation to this rule. If the EPA receives
adverse comments, the direct final rule will be withdrawn, and all
public comments received will be addressed in a subsequent final rule
based on this proposed rule. The EPA will not institute a second
comment period on this action. Any parties interested in commenting on
this action should do so at this time.
DATES: Comments on this proposed rule must be postmarked by July 24,
1996.
ADDRESSES: Comments should be mailed to Jole C. Luehrs, Chief, Air
Permits Section (6PD-R), U.S. EPA Region 6, 1445 Ross Avenue, Dallas,
Texas 75202-2733. Copies of the State's petition and other information
relevant to this action are available for inspection during normal
hours at the following locations:
U.S. EPA, Region 6, Air Permits Section (6PD-R), 1445 Ross Avenue,
Suite 700, Dallas, Texas 75202-2733.
Air and Radiation Docket and Information Center, U.S. EPA, 401 M
Street, SW, Washington, DC 20460.
City of Albuquerque, Environmental Health Department, One Civic Plaza,
Albuquerque, New Mexico 87103.
Anyone wishing to review this petition at the Region 6 EPA office
is asked to contact the person below to schedule an appointment 24
hours in advance.
FOR FURTHER INFORMATION CONTACT: Mr. Samuel R. Mitz, Air Permits
Section (6PD-R), EPA Region 6, telephone (214) 665-8370.
SUPPLEMENTARY INFORMATION: See the information provided in the Direct
Final Rule which is located in the Rules Section of this Federal
Register.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon Monoxide,
Nonattainment areas.
Dated: April 11, 1996.
Lynda F. Carroll,
Acting Regional Administrator.
[FR Doc. 96-16024 Filed 6-21-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-16022 Proposed Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; State of Tennessee
[Federal Register Volume 61, Number 122 (Monday, June 24, 1996)]
[Proposed Rules]
[Pages 32386-32391]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16022]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[TN-152-1-9636; FRL-5525-1]
Proposed Approval and Promulgation of Implementation Plans and
Designation of Areas for Air Quality Planning Purposes; State of
Tennessee
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: On November 14, 1994, the State of Tennessee, through the
Tennessee Department of Environment and Conservation (TDEC), submitted
a maintenance plan and a request to redesignate the Middle Tennessee
area from moderate nonattainment to attainment for ozone (O3).
Subsequently on August 9, 1995, and January 19, 1996, the State
submitted supplementary information which included revised contingency
measures and emission projections. The Middle Tennessee O3
nonattainment area consists of Davidson, Rutherford, Sumner,
Williamson, and Wilson Counties. Under the Clean Air Act, designations
can be changed if sufficient data are available to warrant such
changes. In this action, EPA is proposing to approve the State of
Tennessee's submittal because it will meet the maintenance plan and
redesignation requirements. The approved maintenance plan will become a
federally enforceable part of Tennessee's State Implementation Plan
(SIP) for the moderate nonattainment area. In this action, EPA is also
proposing to approve the State of Tennessee's 1990 baseline emissions
inventory because it meets EPA's requirements regarding the approval on
baseline emission inventories. EPA has analyzed the Tennessee SIP and
determined which requirements have been met and for which requirements
further action is required. In the instances where further action is
required, SIP revisions meeting those requirements must be fully
approved in order for EPA to find that all the applicable requirements
of the Clean Air Act as amended in 1990 (CAA) have been met. Thus,
final approval of this redesignation is contingent upon the final
approval of the additional SIP submittals described in Part 2. of the
Supplementary Information.
DATES: To be considered, comments must be received by July 24, 1996.
ADDRESSES: Written comments on this action should be addressed to
Steven M. Scofield, at the EPA Regional Office listed below.
Copies of the documents relative to this action are available for
public inspection during normal business hours at the following
locations. The interested persons wanting to examine these documents
should make an appointment with the appropriate office at least 24
hours before the visiting day.
Environmental Protection Agency, Region 4 Air Programs Branch, 345
Courtland Street, NE, Atlanta, Georgia 30365.
Tennessee Department of Environment and Conservation, 9th Floor, L & C
Annex, 401 Church Street, Nashville, Tennessee, 37243-1531.
Bureau of Environmental Health Services, Metropolitan Health
Department, 311--23rd Avenue, North, Nashville, Tennessee, 37203.
FOR FURTHER INFORMATION CONTACT: Steven M. Scofield, Regulatory
Planning and Development Section, Air Programs Branch, Air, Pesticides
& Toxics Management Division, Region 4 Environmental Protection Agency,
345 Courtland Street, NE, Atlanta, Georgia 30365. The telephone number
is 404/347-3555 extension 4189. Reference file TN-152-1-9636.
SUPPLEMENTARY INFORMATION: On November 15, 1990, the Clean Air Act
Amendments of 1990 were enacted. (Pub. L. 101-549, 104 Stat. 2399,
codified at 42 U.S.C. 7401-7671q). Under section 107(d)(1)(C), EPA
designated the Middle Tennessee area as nonattainment by operation of
law with respect to O3 because the area was designated
nonattainment immediately before November 15, 1990. The area was
classified as moderate.
The moderate nonattainment area more recently has ambient
monitoring data that show no violations of the O3 NAAQS, during
the period from 1992 through 1994. Therefore, in an effort to comply
with the CAA and to ensure continued attainment of the NAAQS, on
November 14, 1994, the State of Tennessee submitted an O3
maintenance plan and requested redesignation of the area to attainment
with respect to the O3 NAAQS. On March 13, 1995, Region 4
determined that the information received from the State constituted a
complete redesignation request under the general completeness criteria
of 40 CFR part 51, appendix V, sections 2.1 and 2.2. Subsequently, on
August 9, 1995, and January 19, 1996, the State submitted supplementary
information which included revised contingency measures and emission
projections.
The Tennessee redesignation request for the Middle Tennessee
moderate O3 nonattainment area meets the five requirements of
section 107(d)(3)(E) for
[[Page 32387]]
redesignation to attainment. The following is a brief description of
how the State of Tennessee has fulfilled each of these requirements.
Because the maintenance plan is a critical element of the redesignation
request, EPA will discuss its evaluation of the maintenance plan under
its analysis of the redesignation request.
1. The Area Must Have Attained the O3 NAAQS
The State of Tennessee's request is based on an analysis of quality
assured ambient air quality monitoring data, which is relevant to the
maintenance plan and to the redesignation request. Most recent ambient
air quality monitoring data for calendar year 1992 through calendar
year 1994 show an expected exceedance rate of less than 1.0 per year of
the O3 NAAQS in the nonattainment area (See 40 CFR 50.9 and
Appendix H). The area has continued to demonstrate attainment to date.
Because the nonattainment area has complete quality-assured data
showing no violations of the O3 NAAQS over a consecutive three
calendar year period, the area has met the first component of
attainment of the O3 NAAQS. In addition, there have been no
ambient air exceedances in 1995 or to date in 1996 for O3. The
State of Tennessee has also met the second component of attainment of
the O3 NAAQS by committing to continue monitoring the moderate
nonattainment area in accordance with 40 CFR part 58.
2. The Area Has Met All Applicable Requirements Under Section 110 and
Part D of the CAA
On August 13, 1980, and January 11, 1984, EPA fully approved
Tennessee's SIP as meeting the requirements of section 110(a)(2) and
part D of the 1977 CAA (45 FR 53809 and 49 FR 1342). The approved
control strategy did not result in attainment of NAAQS for O3
prior to the 1990 CAA. Additionally, the amended CAA revised section
182(a)(2)(A), 110(a)(2) and, under part D, revised section 172 and
added new requirements for all nonattainment areas. Therefore, for
purposes of redesignation, to meet the requirement that the SIP contain
all applicable requirements under the CAA, EPA has reviewed the
Tennessee SIP to ensure that it contains all measures due under the
amended CAA prior to or at the time the State of Tennessee submitted
its redesignation request.
Section 107(d)(3)(E) requires that, for an area to be redesignated,
an area must have met all applicable requirements under section 110 and
Part D. The EPA interprets section 107(d)(3)(E)(v) to mean that for a
redesignation to be approved, the State must have met all requirements
that applied to the subject area prior to or at the time of the
submission of a complete redesignation request. Requirements of the CAA
that come due subsequently continue to be applicable to the area at
those later dates (see section 175A(c)) and, if the redesignation of
the area is disapproved, the State remains obligated to fulfill those
requirements.
A. Section 110 Requirements
Although section 110 was amended by the CAA, the Tennessee SIP for
the moderate nonattainment area meets the requirements of amended
section 110(a)(2). A number of the requirements did not change in
substance and, therefore, EPA believes that the pre-amendment SIP met
these requirements. EPA has analyzed the SIP and determined that it is
consistent with the requirements of amended section 110(a)(2).
B. Part D Requirements
Before the moderate nonattainment area may be redesignated to
attainment, the State must have fulfilled the applicable requirements
of part D. Under part D, an area's classification indicates the
requirements to which it will be subject. Subpart 1 of part D sets
forth the basic nonattainment requirements applicable to all
nonattainment areas, classified as well as nonclassifiable. Subpart 2
of part D establishes additional requirements for O3 nonattainment
areas classified under table 1 of section 181(a). As described in the
General Preamble for the Implementation of title I, specific
requirements of subpart 2 may override subpart 1's general provisions
(57 FR 13501 (April 16, 1992)). The Middle Tennessee nonattainment area
is classified as moderate (See 56 FR 56694, codified at 40 CFR 81.343).
Therefore, in order to be redesignated to attainment, the State of
Tennessee must meet the applicable requirements of subpart 1 of part D,
specifically sections 172(c) and 176, and is also required to meet the
applicable requirements of subpart 2 of part D, specifically sections
182(a) and (b).
a. Subpart 1 of Part D
Section 172(c) sets forth general requirements applicable to all
nonattainment areas. Under section 172(b), the section 172(c)
requirements are applicable as determined by the Administrator, but no
later than 3 years after an area has been designated as nonattainment
under the amended CAA. Furthermore, as noted above, some of these
section 172(c) requirements are superseded by more specific
requirements in subpart 2 of part D. In the case of the Tennessee
nonattainment area, the State has satisfied all of the section 172(c)
requirements necessary for the area to be redesignated upon the basis
of the November 14, 1994, redesignation request.
EPA has determined that the section 172(c)(2) reasonable further
progress (RFP) requirement (with parallel requirements for a moderate
ozone nonattainment area under subpart 2 of part D, due November 15,
1993) was not applicable as the State of Tennessee submitted this
redesignation request on November 14, 1994, which demonstrated that the
Middle Tennessee area was monitoring attainment of the O3
standard. Based on a memorandum dated May 10, 1995, from John S. Seitz,
Director, Office of Air Quality Planning and Standards to the Regional
Air Division Directors, entitled Reasonable Further Progress,
Attainment Demonstration, and Related Requirements for Ozone
Nonattainment Areas Meeting the Ozone National Ambient Air Quality
Standard, EPA determined on June 22, 1995, effective August 7, 1995,
that the Middle Tennessee area had attained the O3 standard and
that RFP and 15 percent plan requirements do not apply to the area for
so long as the area does not monitor any violations of the O3
standard.
The section 172(c)(3) emissions inventory requirement has been met
by the submission of the 1990 baseline inventory required under subpart
2 of part D, section 182(a)(1), which EPA is proposing to approve in
this action.
The State of Tennessee has a fully-approved NSR program meeting the
requirements of section 182(b)(1). Therefore, the section 172(c)(5)
requirement has been met.
Section 176(c) of the CAA requires states to revise their SIPs to
establish criteria and procedures to ensure that Federal actions,
before they are taken, conform to the air quality planning goals in the
applicable state SIP. The requirement to determine conformity applies
to transportation plans, programs and projects developed, funded or
approved under Title 23 U.S.C. or the Federal Transit Act
(``transportation conformity''), as well as to all other Federal
actions (``general conformity''). Section 176 further provides that the
conformity revisions to be submitted by states must be consistent with
Federal conformity regulations that the CAA required EPA to promulgate.
Congress provided for
[[Page 32388]]
the state revisions to be submitted one year after the date for
promulgation of final EPA conformity regulations. When that date passed
without such promulgation, EPA's General Preamble for the
implementation of Title I informed states that its conformity
regulations would establish a submittal date [see 57 FR 13498, 13557
(April 16, 1992)].
The EPA promulgated final transportation conformity regulations on
November 24, 1993 (58 FR 62188), and general conformity regulations on
November 30, 1993 (58 FR 63214). These conformity rules require that
states adopt both transportation and general conformity provisions in
the SIP for areas designated nonattainment or subject to a maintenance
plan approved under CAA section 175A. Pursuant to Sec. 51.396 of the
transportation conformity rule and Sec. 51.851 of the general
conformity rule, the State of Tennessee is required to submit SIP
revisions containing transportation and general conformity criteria and
procedures consistent with those established in the Federal rule by
November 25, 1994 and December 1, 1994, respectively. Because the
deadlines for these submittals had not come due at the time of the
submission of the redesignation request, they are not applicable
requirements under section 107(d)(3)(E)(V) and, thus, do not affect
approval of this redesignation request.
b. Subpart 2 of Part D--Section 182
The CAA was amended on November 15, 1990, Pub. L. 101-549, 104
Stat. 2399, codified at 42 U.S.C. 7401-7671q. EPA was required to
classify O3 nonattainment areas according to the severity of their
problem. On November 6, 1991 (56 FR 56694), the Middle Tennessee area
was designated as moderate O3 nonattainment. Because the Middle
Tennessee area is a moderate O3 nonattainment area, it is required
to have met the requirements of sections 182(a), (b), and (f) of the
CAA. EPA has analyzed the SIP and determined which requirements have
been met and for which requirements further action is required. In the
instances where further action is required, SIP revisions meeting those
requirements must be fully approved in order for EPA to find that all
the applicable requirements of the CAA have been met. Thus, final
approval of this redesignation is contingent upon the final approval of
the additional SIP submittals described below.
(1) Section 182(a)(1)--Emissions Inventory
Section 182(a)(1) of the CAA required an inventory of all actual
emissions from all sources, as described in section 172(c)(3) to be
submitted by November 15, 1992. On November 15, 1993, the State
submitted an emission inventory for the Middle Tennessee area. EPA is
proposing to approve the inventory in this document. Final approval of
this redesignation is contingent on final approval of the emissions
inventory.
(2) Section 182(a)(2), 182(b)(2)--Reasonably Available Control
Technology (RACT)
The 1990 CAA amended section 182(a)(2)(A), and Congress statutorily
adopted the requirement that O3 nonattainment areas correct their
deficient RACT rules for O3 (RACT Fix-ups). Areas designated
nonattainment before amendment of the CAA and which retained that
designation and were classified as marginal or above as of enactment
are required to meet the RACT Fix-ups requirement. Under section
182(a)(2)(A), those areas were required by May 15, 1991, to correct
RACT regulations as required under pre-amendment guidance.1 The
SIP call letters interpreted that guidance and indicated corrections
necessary for specific nonattainment areas. The Middle Tennessee area
was previously subject to RACT requirements for ozone. Therefore, this
area is subject to the RACT Fix-ups requirement and the May 15, 1991,
deadline. The State submitted revisions to the Tennessee SIP addressing
the RACT Fix-ups to EPA on June 25, 1992, and March 22, 1993. EPA
approved these revisions on April 18, 1994 (59 FR 18310).
---------------------------------------------------------------------------
\1\ Among other things, the pre-amendment guidance consists of
the VOC RACT portions of the Post-87 policy, 52 FR 45044 (Nov. 24,
1987); the Bluebook, ``Issues Relating to VOC Regulation Cutpoints,
Deficiencies and Deviations, Clarification to Appendix D of November
24, 1987 Federal Register Notice'' (of which notice of availability
was published in the Federal Register on May 25, 1988); and the
existing Control Technology Guidelines (CTGs).
---------------------------------------------------------------------------
The 1990 CAA also amended section 182(b)(2) which required RACT on
all major sources of VOCs for O3 nonattainment areas designated
moderate and above (RACT Catch-ups) by November 15, 1992. The RACT
Catch-ups provision required the State to submit a revision to the SIP
to implement RACT on: (1) Each category of VOC sources in the area
covered by a control technique guideline (CTG) document issued between
the enactment of the 1990 CAA and the date of attainment (which is not
an applicable requirement for purposes of this redesignation since the
due date for these rules is November 15, 1994, a date after the
submission of the redesignation request); (2) all VOC sources in the
area covered by any CTG issued before the date of the 1990 CAA; and (3)
all other major stationary sources of VOCs that are located in the
area.
Tennessee submitted SIP revisions to correct deficiencies in the
VOC regulations to EPA on May 18, 1993. The approval of these SIP
revisions, including several revisions that were conditionally
approved, was published in the Federal Register on February 27, 1995
(60 FR 10504). The approval became effective on April 28, 1995. Action
to give final approval of the Tennessee RACT Catch-up provisions must
be taken at the time or prior to final approval of this redesignation.
(3) Section 182(a)(3)--Emissions Statements
Section 182(a)(3) of the CAA required that the SIP be revised by
November 15, 1992, to require stationary sources of oxides of nitrogen
(NOx) and VOCs to provide the State with a statement showing
actual emission each year. Tennessee submitted SIP revisions to EPA on
May 18, 1993, regarding the VOC emissions statements that were
conditionally approved on February 27, 1995, and a pre-hearing revision
regarding the NOX emissions statements on October 17, 1994. The
State has officially submitted revisions for approval in the Tennessee
SIP that will satisfy the NOX and VOC emissions statements
requirement upon approval under a separate action. Final action
regarding the Tennessee Emissions Statements regulations must be taken
at the time or prior to final approval of this redesignation. Approval
of this redesignation is contingent upon approval of the emissions
statements regulations.
(4) Section 182(b)(1)--15% Progress Plans
Section 182(b)(1) of the CAA required states to submit a revision
to the SIP by November 15, 1993, to provide for VOC emission reductions
by November 15, 1996, of at least 15% from baseline emissions
accounting for any growth in emissions after the date of enactment of
the CAA. The State submitted a plan on November 12, 1993, which was
found to be incomplete by EPA on April 1, 1994. However, the State of
Tennessee submitted this redesignation request on November 14, 1994,
which demonstrated that the Middle Tennessee area was monitoring
attainment of the O3 standard. Based on
[[Page 32389]]
a memorandum dated May 10, 1995, from John S. Seitz, Director, Office
of Air Quality Planning and Standards to the Regional Air Division
Directors, entitled Reasonable Further Progress, Attainment
Demonstration, and Related Requirements for Ozone Nonattainment Areas
Meeting the Ozone National Ambient Air Quality Standard, EPA determined
on June 22, 1995, effective August 7, 1995, that the Middle Tennessee
area had attained the O3 standard and that RFP and 15 percent plan
requirements do not apply to the area for so long as the area does not
monitor any violations of the O3 standard.
(5) Section 182(b)(1)--New Source Review (NSR)
The CAA required all classified nonattainment areas to meet several
requirements regarding NSR, including provisions to ensure that
increased emissions of VOCs compounds will not result from any new or
major source modifications and a general offset rule. The State
submitted a NSR rule on August 17, 1994, to incorporate VOC and
NOX permit review requirements for new and modified sources in
Tennessee's O3 nonattainment areas. The revised permit
requirements meet new offset ratios and additional provisions for
moderate O3 nonattainment areas. EPA approved this rule on
February 10, 1995 (60 FR 7913), giving Tennessee a fully approved NSR
program. (EPA notes that under the policy announced in the memorandum,
``Part D New Source Review (part D NSR) Requirements for Areas
Requesting Redesignation to Attainment,'' dated October 14, 1994, from
Mary D. Nichols to Air Division Directors 1-10, approval of the NSR
submittal is not necessarily required for approval of a redesignation.)
In addition, EPA provided comments regarding proposed revisions to
Tennessee's prevention of significant deterioration (PSD) rule on April
25, 1994. However, the State has not officially submitted these
revisions for approval in the Tennessee SIP. Final action regarding the
Tennessee PSD rule must be taken at the time or prior to final approval
of this redesignation. Approval of this redesignation is contingent
upon approval of the PSD rule.
(6) Section 182(b)(3)--Stage II
Section 182(b)(3) of the CAA required moderate areas to implement
Stage II gasoline vapor recovery systems unless and until EPA
promulgated onboard vapor recovery (OBVR) regulations. On January 24,
1994, EPA promulgated the OBVR rule. As section 202(a)(6) of the CAA
provides that once the rule is promulgated, moderate areas are no
longer required to implement Stage II. Thus, the Stage II vapor
recovery requirement of section 182(b)(3) is no longer an applicable
requirement. However, Tennessee submitted Stage II vapor recovery rules
to EPA which were approved on February 9, 1995, with an effective date
of April 10, 1995.
(7) Section 182(b)(4)--Motor Vehicle Inspection and Maintenance (I/M)
The CAA required all moderate and above areas to revise the SIP to
include provisions necessary to provide for a vehicle inspection and
maintenance (I/M) program. The State has the required legal authority
for I/M, and EPA approved the program on July 28, 1995, with an
effective date of September 26, 1995.
(8) Section 182(f)--Oxides of Nitrogen (NOX) Requirements
Section 182(f) of the CAA requires states with areas designated
nonattainment for O3 and classified as moderate and above to
impose the same control requirements for major stationary sources of
NOX as apply to major stationary sources of volatile organic
compounds (VOCs). These control requirements, NOX RACT and
NOX NSR, were to be submitted to EPA in a SIP revision by November
15, 1992. Tennessee submitted a request for an exemption from the
182(f) requirements on March 21, 1995. EPA is in the process of
approving this exemption. Final action regarding the Tennessee 182(f)
exemption must be taken at the time or prior to final approval of this
redesignation. Approval of this redesignation is contingent upon
approval of the 182(f) exemption.
In addition, NOX reductions were obtained from two sources
prior to the Middle Tennessee area attaining the O3 standard. The
State must submit the permits for approval by EPA, as well as any other
permits or regulations from which the area obtained reductions in order
to attain the O3 standard or project maintenance of the standard.
Final action regarding the Tennessee NOX permits and regulations
must be taken at the time or prior to final approval of this
redesignation. Approval of this redesignation is contingent upon
approval of the NOX permits and regulations.
3. The Area Has a Fully Approved SIP Under Section 110(k) of the
CAA
Based on the approval of provisions under the pre-amended CAA and
EPA's prior approval of SIP revisions under the amended CAA, EPA has
determined that Tennessee will have a fully approved O3 SIP under
section 110(k) for the moderate nonattainment area if EPA approves SIP
submissions regarding the emissions inventory, emissions statements,
VOC RACT catch-ups, and NOX 182(f) exemption, permits, and
regulations. Final action will be taken prior to or at the same time as
final approval of this redesignation.
4. The Air Quality Improvement Must Be Permanent and Enforceable
Several control measures have come into place since the Middle
Tennessee nonattainment area violated the O3 NAAQS. Of these
control measures, the reduction of fuel volatility to 9.5 psi in 1989,
and finally to 7.8 psi beginning with the summer of 1992, as measured
by the Reid Vapor Pressure (RVP), and fleet turnover due to the Federal
Motor Vehicle Control Program (FMVCP) produced the most significant
decreases in VOC emissions. The reduction in VOC emissions due to the
mobile source regulations from 1990 to 1994 was 27.14 tons per day
(28.6%).
In association with its emission inventory discussed below, the
State of Tennessee has demonstrated that actual enforceable emission
reductions are responsible for the air quality improvement and that the
VOC emissions in the base year are not artificially low due to local
economic downturn. EPA finds that the combination of existing EPA-
approved state and federal measures contribute to the permanence and
enforceability of reduction in ambient O3 levels that have allowed
the area to attain the NAAQS.
5. Fully Approved Maintenance Plan Under Section 175A
Section 175A of the CAA sets forth the elements of a maintenance
plan for areas seeking redesignation from nonattainment to attainment.
The plan must demonstrate continued attainment of the applicable NAAQS
for at least ten years after the Administrator approves a redesignation
to attainment. Eight years after the redesignation, the State must
submit a revised maintenance plan which demonstrates attainment for the
ten years following the initial ten-year period. To provide for the
possibility of future NAAQS violations, the maintenance plan must
contain contingency measures, with a schedule for implementation,
adequate to assure prompt correction of any air quality problems.
In this document, EPA is proposing approval of the State of
Tennessee's maintenance plan for the Middle Tennessee nonattainment
area because
[[Page 32390]]
EPA finds that Tennessee's submittal meets the requirements of section
175A.
A. Emissions Inventory--Base Year Inventory
On November 15, 1993, the State of Tennessee submitted
comprehensive inventories of VOC, NOX, and CO emissions from the
Middle Tennessee area. The inventories include biogenic, area,
stationary, and mobile sources for 1990.
The State submittal contains the detailed inventory data and
summaries by county and source category. Finally, this inventory was
prepared in accordance with EPA guidance. However, Tennessee had not
attained the O3 standard during 1990. Therefore, 1994 will be used
as the base year for this redesignation. A summary of the 1990 baseline
inventories as well as the 1994 base year and projected maintenance
year inventories is included in this document. This document proposes
approval of the 1990 baseline inventory and the 1994 base year
inventory for the Middle Tennessee area.
Summary of VOC Emissions
[Tons per day]
----------------------------------------------------------------------------------------------------------------
1990 1994 1996 1999 2002 2006
----------------------------------------------------------------------------------------------------------------
Point............................. 45.87 41.48 38.34 40.98 43.60 47.08
Area.............................. 67.67 50.46 43.91 46.11 48.31 51.24
Non-Road.......................... 27.83 28.74 29.09 29.39 29.68 30.08
Mobile............................ 94.77 67.63 56.27 53.43 52.90 53.17
Total............................. 263.14 188.31 167.61 169.91 174.49 181.57
----------------------------------------------------------------------------------------------------------------
Summary of NOX Emissions
[Tons per day]
----------------------------------------------------------------------------------------------------------------
1990 1994 1996 1999 2002 2006
----------------------------------------------------------------------------------------------------------------
Point............................. 111.79 124.96 73.45 78.99 84.50 94.25
Area.............................. 15.12 14.56 15.03 15.78 16.54 17.54
Non-Road.......................... 29.24 30.19 30.67 31.44 32.20 33.22
Mobile............................ 111.34 120.53 102.20 98.79 96.25 96.60
Total............................. 267.49 290.24 221.35 225.00 229.31 241.61
----------------------------------------------------------------------------------------------------------------
Summary of CO Emissions
[Tons per day]
----------------------------------------------------------------------------------------------------------------
1990 1994 1996 1999 2002 2006
----------------------------------------------------------------------------------------------------------------
Point............................. 20.43 21.54 22.12 23.13 24.13 25.43
Area.............................. 35.94 11.75 16.97 17.48 18.00 18.68
Non-Road.......................... 188.69 194.80 197.93 202.86 207.78 214.35
Mobile............................ 720.68 614.24 458.63 413.08 401.31 407.97
Total............................. 965.74 842.33 695.65 656.55 651.22 666.43
----------------------------------------------------------------------------------------------------------------
B. Demonstration of Maintenance--Projected Inventories
Total VOC and NOX emissions were projected from 1990 out to
2006, with interim years of 1994, 1996, 1999, and 2002. These projected
inventories were prepared in accordance with EPA guidance. The
projections show that VOC and NOX emissions are not expected to
exceed the level of the base year inventory during this time period.
C. Verification of Continued Attainment
Continued attainment of the O3 NAAQS in the Middle Tennessee
area depends, in part, on the State's efforts toward tracking
indicators of continued attainment during the maintenance period. The
State has also committed to complete periodic inventories of VOC and
NOX emissions every five years. The contingency plan for the
Middle Tennessee area is triggered by three indicators; a violation of
the O3 NAAQS, the monitored ambient levels of O3 exceed 0.12
parts per million (ppm) more than once in any year at any site in the
nonattainment area, or the level of total VOC or NOX emissions has
increased above the attainment level in 1994 by ten percent or more.
D. Contingency Plan
The level of VOC and NOX emissions in the Middle Tennessee
area will largely determine its ability to stay in compliance with the
O3 NAAQS in the future. Despite the State's best efforts to
demonstrate continued compliance with the NAAQS, the ambient air
pollutant concentrations may exceed or violate the NAAQS. Therefore,
Tennessee has provided contingency measures with a schedule for
implementation in the event of a future O3 air quality problem. In
the case of a violation of the O3 NAAQS, the plan contains a
contingency to implement additional control measures such as lower Reid
Vapor Pressure for gasoline, lowering the threshold of applicability
for major stationary VOC and NOX sources from 100 tons per year
(tpy) to 50 tpy, and application of RACT on sources covered by new CTG
categories. A complete description of these contingency measures and
their triggers can be found in the State's submittal. EPA finds that
the contingency measures provided in the State submittal meet the
requirements of section 175A(d) of the CAA.
E. Subsequent Maintenance Plan Revisions
In accordance with section 175A(b) of the CAA, the State of
Tennessee has agreed to submit a revised maintenance SIP eight years
after the area is redesignated to attainment. Such
[[Page 32391]]
revised SIP will provide for maintenance for an additional ten years.
Proposed Action
EPA proposes approval of the State of Tennessee's request to
redesignate to attainment the Middle Tennessee O3 nonattainment area,
and the Middle Tennessee and maintenance plan contingent upon a full
and final approval of the outstanding requirements discussed above
(emissions inventory, RACT catch-ups, emissions statements, and
NOX requirements). EPA also proposes to approve the 1990 baseline
inventory and the 1994 base year inventory for the Middle Tennessee
nonattainment area.
The OMB has exempted these actions from review under Executive
Order 12866.
Nothing in this action shall be construed as permitting or allowing
or establishing a precedent for any future request for a revision to
any state implementation plan. Each request for revision to the state
implementation plan shall be considered separately in light of specific
technical, economic, and environmental factors and in relation to
relevant statutory and regulatory requirements.
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 undertake various actions in association with proposed
or final rules that 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.
Through submission of this state implementation plan or plan
revision, the State and any affected local or tribal governments have
elected to adopt the program provided for under section 107(d)(3)(E) of
the CAA. These rules may bind State, local and tribal governments to
perform certain actions and also require the private sector to perform
certain duties. EPA has examined whether the rules being proposed for
approval by this action would impose any new requirements. Since such
sources are already subject to these regulations under State law, no
new requirements are imposed by this proposed approval. Accordingly, no
additional costs to State, local, or tribal governments, or to the
private sector, result from this action, and therefore there will be no
significant impact on a substantial number of small entities.
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 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.
Redesignation of an area to attainment under section 107(d)(3)(E)
of the CAA does not impose any new requirements on small entities.
Redesignation is an action that affects the status of a geographical
area and does not impose any regulatory requirements on sources. The
Administrator certifies that the approval of the redesignation request
will not affect a substantial number of small entities.
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Intergovernmental relations, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements.
40 CFR Part 81
Air pollution control, National parks, Wilderness areas.
Dated: June 13, 1996.
A. Stanley Meiburg,
Acting Regional Administrator.
[FR Doc. 96-16022 Filed 6-21-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-16008 Ohio Regulatory Program
[Federal Register Volume 61, Number 122 (Monday, June 24, 1996)]
[Proposed Rules]
[Pages 32382-32383]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16008]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 935
[OH-238-FOR, #72]
Ohio Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Proposed rule; public comment period and opportunity for public
hearing.
-----------------------------------------------------------------------
SUMMARY: OSM is announcing receipt of a proposed amendment to the Ohio
regulatory program (hereinafter the ``Ohio program'') under the Surface
Mining Control and Reclamation Act of 1977 (SMCRA). The proposed
amendment consists of changes to provisions of the Ohio rules
pertaining to underground mining. The amendment is intended to revise
the Ohio program to be consistent with the corresponding Federal
regulations.
DATES: Written comments must be received by 4:00 p.m., [E.D.T.], July
24, 1996. If requested, a public hearing on the proposed amendment will
be held on July 19, 1996. Requests to speak at the hearing must be
received by 4:00 p.m., [E.D.t.], on July 9, 1996.
ADDRESSES: Written comments and requests to speak at the hearing should
be mailed or hand delivered to George Rieger, Field Branch Chief, at
the address listed below.
Copies of the Ohio program, the proposed amendment, a listing of
any scheduled public hearings, and all written comments received in
response to this document will be available for public review at the
addresses listed below during normal business hours, Monday through
Friday, excluding holidays. Each requester may receive one free copy of
the proposed amendment by contacting OSM's Appalachian Regional
Coordinating Center.
George Rieger, Field Branch Chief, Appalachian Regional Coordinating
Center, Office of Surface Mining Reclamation and Enforcement, 3 Parkway
Center, Pittsburgh, PA 15220, Telephone: (412) 937-2153
Ohio Division of Mines and Reclamation, 1855 Fountain Square Court,
Columbus, Ohio 43224, Telephone: (614) 265-1076
FOR FURTHER INFORMATION CONTACT:
George Rieger, Field Branch Chief, Telephone: (412) 937-2153.
SUPPLEMENTARY INFORMATION:
I. Background on the Ohio Program
On August 16, 1982, the Secretary of the Interior conditionally
approved the Ohio program. Background information on the Ohio program,
including the Secretary's findings, the disposition of comments, and
the conditions of approval can be found in the August 10, 1982, Federal
Register (42 FR 34688). Subsequent actions concerning the conditions of
approval and program amendments can be found at 30 CFR 935.11, 935.12,
935.15, and 935.16.
II. Description of the Proposed Amendment
By letter dated May 23, 1996, (Administrative Record No. OH-2166-
00) Ohio submitted a proposed amendment to its program pursuant to
SMCRA at its own initiative. The provisions of the Ohio Administrative
Code (OAC) that Ohio proposes to amend are: OAC 1501:13-4-12(G)(3)(d)
and 4 (f) and (i)--Requirements for Special Categories of Mining, OAC
1501:13-9-08 (A) & (B)--Protection of Underground Mining, and OAC
1501:13-13-01--Concurrent Surface and Underground Mining.
Specifically, Ohio proposes to make the following revisions. At OAC
1501:13-4-12(G)(3)(d) and (4) (f) and (i), Ohio proposed to delete the
reference to OAC 1501:13-13-01, which is being rescinded, and replace
it with a reference to OAC 1501:13-9-08--Protection of Underground
Mining. At OAC 1501:13-9-08(A), Ohio proposes to require that Mine
Safety and Health Administration concurrence is required only if
surface mining operations are to be conducted within 500 feet of active
underground coal mines. The reference to the Chief of the Ohio Division
of Mines is changed to the Mine Safety Administrator. Subsection (B)
which requires that surface mining operations be designed to protect
disturbed surface areas so as not to endanger any present or future
coal mining operations is deleted. Ohio proposes to delete OAC 1501:13-
13-01 which addresses performance standards for concurrent surface and
underground mining. This section duplicates language in OAC 1501:13-4-
12(G) and 13-9-08.
III. Public Comment Procedures
In accordance with the provisions of 30 CFR 732.17(h), OSM is
seeking comments on whether the proposed amendment satisfies the
applicable program approval criteria of 30 CFR 732.15. If the amendment
is deemed adequate, it will be become part of the Ohio program.
Written Comments
Written comments should be specific, pertain only to the issues
proposed in this rulemaking, and include explanations in support of the
commenter's recommendations. Comments received after the time indicated
under ``DATES'' or at locations other than the Appalachian Regional
Coordinating Center will not necessarily be considered in the final
rulemaking or included in the Administrative Record.
Public Hearing
Persons wishing to speak at the public hearing should contact the
person listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m,
[E.D.T.] on July 9, 1996. The location and time of the hearing will be
arranged with those persons requesting the hearing. If no none requests
an opportunity to speak at the public hearing, the hearing will not be
held.
Filing of a written statement at the time of the hearing is
requested as it will greatly assist the transcriber. Submission of
written statements in advance of the hearing will allow OSM officials
to prepare adequate responses and appropriate questions.
The public hearing will continue on the specified date until all
persons scheduled to speak have been heard. Persons in the audience who
have not been scheduled to speak, and who wish to do so, will be heard
following those who have been scheduled. The hearing
[[Page 32383]]
will end after all persons scheduled to speak and persons present in
the audience who wish to speak have been heard.
Any disabled individual who has need for a special accommodation to
attend a public hearing should contact the individual listed under FOR
FURTHER INFORMATION CONTACT.
Public Meeting
If only one person requests an opportunity to speak at a hearing, a
public meeting, rather than a public hearing, may be held. Persons
wishing to meet with OSM representatives to discuss the proposed
amendment may request a meeting by contacting the person listed under
FOR FURTHER INFORMATION CONTACT. All such meetings will be open to the
public and, if possible, notices of meetings will be posted at the
locations listed under ADDRESSES. A written summary of each meeting
will be made a part of the Administrative Record.
IV. Procedural Determinations
Executive Order 12866
This rule is exempted from review by the Office of Management and
budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review).
Executive Order 12778
The Department of the Interior has conducted the reviews required
by section 2 of Executive Order 12778 (Civil Justice Reform) and has
determined that, to the extent allowed by law, this rule meets the
applicable standards of subsections (a) and (b) of that section.
However, these standards are not applicable to the actual language of
State regulatory programs and program amendments since each such
program is drafted and promulgated by a specific State, not by OSM.
Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30
CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State
regulatory programs and program amendments submitted by the States must
be based solely on a determination of whether the submittal is
consistent with SMCRA and its implementing Federal regulations and
whether the other requirements of 30 CFR Parts 730, 731, and 732 have
been met.
National Environmental Policy Act
No environmental impact statement is required for this rule since
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency
decisions on proposed State regulatory program provisions do not
constitute major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C)).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
Regulatory Flexibility Act
The Department of the Interior has determined that this rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal which is the subject of this rule is based upon
counterpart Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. Accordingly, this rule will ensure that existing requirements
previously promulgated by OSM will be implemented by the State. In
making the determination as to whether this rule would have a
significant economic impact, the Department relied upon the data and
assumptions for the counterpart Federal regulations.
Unfunded Mandates
This rule will not impose a cost of $100 million or more in any
given year on any government entity or the private sector.
List of Subjects in 30 CFR Part 935
Intergovernmental relations, Surface mining, Underground mining.
Dated: June 12, 1996.
Claude L. Downing,
Acting Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 96-16008 Filed 6-21-96; 8:45 am]
BILLING CODE 4310-05-M
Complete official Federal Register PDF
FR Doc. 96-15990 Latex-containing Devices; User Labeling
[Federal Register Volume 61, Number 122 (Monday, June 24, 1996)]
[Proposed Rules]
[Pages 32618-32621]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15990]
[[Page 32617]]
_______________________________________________________________________
Part VII
Department of Health and Human Services
_______________________________________________________________________
Food and Drug Administration
_______________________________________________________________________
21 CFR Part 801
Latex-Containing Devices; User Labeling; Proposed Rule
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 /
Proposed Rules
=======================================================================
-----------------------------------------------------------------------
[[Page 32618]]
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration
[Docket No. 96N-0119]
RIN 0910-AA34
21 CFR Part 801
Latex-containing Devices; User Labeling
AGENCY: Food and Drug Administration, HHS.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Food and Drug Administration (FDA) is proposing to amend
the regulations to require all medical devices containing natural
rubber latex that may directly or indirectly contact living human
tissue to be labeled with a statement identifying the product as one
which contains natural rubber latex and which may cause allergic
reactions. The agency is also amending the regulation to require that
hypoallergenicity claims be removed from latex medical gloves and other
natural rubber latex medical devices because the modified human Draize
test currently used to support hypoallergenicity claims addresses only
chemical sensitivity, and it is inappropriate for determining protein
sensitivity in humans. These requirements are being proposed in
response to numerous reports that have been received of severe allergic
reactions to a wide range of medical devices containing natural rubber
latex.
DATES: Comments by September 23, 1996. FDA is proposing that the final
regulation based on this proposal be effective 180 days after the date
of its publication in the Federal Register.
ADDRESSES: Written comments to the Dockets Management Branch (HFA-305),
Food and Drug Administration, 12420 Parklawn Dr., rm. 1-23, Rockville,
MD 20857.
FOR FURTHER INFORMATION CONTACT: Donald E. Marlowe, Center for Devices
and Radiological Health (HFZ-100), Food and Drug Administration, 5600
Fishers Lane, Rockville, MD 20857, 301-443-2444.
SUPPLEMENTARY INFORMATION:
I. Background
Natural rubber latex is a milky fluid produced by the Heavea
brasiliensis (rubber) tree. There is often confusion concerning the
terminology used to describe the raw agricultural material derived from
the rubber tree and the chemical nomenclature that refers to emulsions
of synthetic rubbers and plastics to which natural rubber latex has
been added.
Latex, either natural or synthetic, is a colloidal dispersion of a
polymeric material in a liquid system mostly aqueous in nature (Ref.
1). ``Natural rubber latex,'' for the purpose of this proposed rule,
means a milky fluid that consists of extremely small particles of
rubber, obtained from the H. brasiliensis (rubber) tree, dispersed in
an aqueous medium. It contains a variety of naturally occurring
substances, including carbohydrates, lipids, phospholipids, proteins,
minerals, small amounts of complex organic material, water, and cis-1,4
polyisoprene, in a colloidal suspension.
The phrase ``natural rubber latex'' refers to the raw material used
in the manufacture of both natural rubber latex products and dry
natural rubber products. These products are formed by two commonly
employed manufacturing processes. One of these is the natural rubber
latex manufacturing process (NRL process), which involves the use of
natural latex in a concentrated liquid form. Products are formed from
NRL processing by dipping, extruding, or coating, and are typically
referred to as containing or made of ``natural rubber latex.'' Examples
of devices manufactured by the NRL process include medical gloves,
catheters, and condoms.
The dry natural rubber manufacturing process (DNR process) involves
the use of coagulated natural latex in dried or milled sheets. Products
are formed from the DNR process by compression molding, extrusion, or
by converting the sheets into a solution for dipping. These products
are typically referred to as containing or made of ``dry rubber.''
Examples of devices or device components containing dry rubber include
syringes with dry rubber plungers, vial stoppers, and intravascular
injection ports.
The phrase, ``contains natural rubber latex,'' as used herein,
encompasses products made by either process, as well as products
described as made of ``synthetic latex'' that include natural rubber
latex in their formulations. This proposed rule would not apply to
products made from synthetic latex, which do not include natural rubber
latex in their formulation.
Since 1988, FDA has noted an increase in the number of reports
submitted to its Medical Device Reporting (MDR) system regarding
sensitivity to natural rubber latex proteins contained in medical
devices. In May of 1990, FDA became aware of deaths associated with
barium enema procedures. Further investigation of the problem revealed
that these deaths were associated with anaphylactic reactions to the
natural latex cuff on the tip of the barium enema catheters. In several
hundred reports of adverse reactions to natural rubber latex that the
agency has received since October 1988, 16 have involved deaths from
anaphylactic shock. Furthermore, several scientific journals have
reported incidents of sensitivity to natural rubber latex proteins in a
wide range of medical devices. (See Refs. 2 through 18.)
Section 701(a) of the Federal Food, Drug, and Cosmetic Act (the
act) (21 U.S.C. 371(a)) authorizes FDA to issue substantive binding
regulations for the efficient enforcement of the act. (Weinberger v.
Hynson, Westcott & Dunning, Inc., 412 U.S. 609 (1973); see also
Weinberger v. Bentex Pharmaceuticals, Inc., 412 U.S. 645, 653 (1973);
National Ass'n of Pharmaceutical Manufacturers v. FDA, 637 F.2d 877 (2d
Cir. 1981); National Confectioners Ass'n v. Califano, 569 F.2d 690
(D.C. Cir. 1978); National Nutritional Foods Ass'n v. Weinberger, 512
F.2d 688 (2d Cir.), cert. denied, 423 U.S. 825 (1975).)
Section 502(a) of the act (21 U.S.C. 352(a)) provides that a device
is misbranded ``If its labeling is false or misleading in any
particular.'' Section 201(n) of the act (21 U.S.C. 321(n)) provides
that, in determining whether labeling of a regulated article (such as a
device) is misleading
* * * there shall be taken into account * * * not only
representations made or suggested by statement, word, design,
device, or any combination thereof, but also the extent to which the
labeling * * * fails to reveal facts material in light of such
representations * * * with respect to consequences which may result
from the use of the article to which the labeling * * * relates
under the conditions of use prescribed in the labeling or
advertising thereof or under such conditions of use as are customary
or usual.
The courts have upheld FDA's authority to prevent false or
misleading labeling by issuing regulations requiring label warnings and
other affirmative disclosures. (See, e.g., Cosmetic, Toiletry, and
Fragrance Association v. Schmidt, 409 F. Supp. 57 (D.D.C. 1976), aff'd
without opinion, Civil No. 75-1715 (D.C. Cir. August 19, 1977), even in
the absence of a proven cause-and-effect relationship between product
usage and harm; Council for Responsible Nutrition v. Goyan, Civil No.
80-1124 (D.D.C August 1, 1980).)
Section 502(f)(1) of the act provides that a device is also
misbranded unless its labeling bears adequate directions for use.
Adequate directions for use means
[[Page 32619]]
adequate directions under which a layperson can use a device safely and
for the purpose for which it was intended. (See 21 CFR 801.5 and
801.6.)
II. Latex Labeling
FDA is proposing that medical devices containing natural rubber
latex that may directly or indirectly contact living human tissue be
labeled with a statement identifying the product as one which contains
natural rubber latex, which may cause allergic reactions. Direct
contact with living human tissue occurs when a natural rubber latex-
containing medical device touches the skin, mucous, or serosal
surfaces. Examples of indirect contact with living human tissue by a
natural rubber latex-containing medical device include, but are not
limited to, the following: Contact with natural rubber latex proteins
that have become suspended in liquid, which can occur when injections
are given through a natural rubber latex-containing injection port or a
syringe with a natural rubber latex-containing plunger; contact with
natural rubber latex protein that is airborne, often in conjunction
with the use of glove dusting powder; and contact with natural latex
residues that have been transferred to nonrubber latex-containing
medical devices, or other objects or surfaces. Devices affected by this
proposed rule would be required to be labeled with one of the following
statements: ``This product contains natural rubber latex which may
cause allergic reactions in some individuals''; ``This product has
components that contain natural rubber latex which may cause allergic
reactions in some individuals''; or ``This product is made from natural
rubber latex which may cause allergic reactions in some individuals''.
The agency has provided three labeling options so that
manufacturers may choose the language most appropriate for their
products. The agency invites comments regarding whether FDA should
require a single, uniform, labeling statement for all natural latex-
containing medical devices, and the agency will consider comments
recommending alternative language for the proposed labeling statements.
Representative examples of natural rubber latex-containing medical
devices which would require such labels include, but are not limited to
the following: Cuffed-barium enema tips and enteroclysis catheters;
contraceptive devices such as condoms with or without spermicidal
lubricant, cervical caps, diaphragms and accessories, and therapeutic
douche apparati; airway and respiratory devices such as oxygen
cannulas, nasopharyngeal airways, tracheal tubes and inflatable cuffs,
tracheobronchial suction catheters, breathing bags and mouthpieces;
dental and surgical equipment such as dental dams, orthodontic
appliances and headgear, anaesthetic gas masks, epistaxis balloons, and
endotracheal tubes; and frequently used hospital equipment such as
urinary catheters and accessories, blood pressure cuffs, intravascular
equipment with latex injection ports, electrode pads, tourniquets,
enema bags, hot or cold water bottles, rubber sheets, stomach and
intestinal tubes, hemodialysis equipment, wound drains, adhesive tape,
elastic bandages, and medical gloves.
Medical gloves include surgeon's gloves, as classified at 21 CFR
878.4460, and patient examination gloves, as classified at 21 CFR
880.6250. Some medical gloves are made of materials that may not
contain natural rubber latex in their formulations and, therefore,
would not be subject to this proposal. It should be further noted that
the term ``medical gloves'' is used to distinguish them from nonmedical
gloves that are not regulated by FDA. Nonmedical gloves, commonly
referred to as utility, industrial, protective, or general purpose
gloves, are not medical devices if they are not intended and/or labeled
for a medical purpose, such as prevention of disease. Such products
would not be subject to this proposed rule.
This rule is being proposed because medical devices that are
composed of natural rubber latex, or which contain components
formulated from natural latex, pose a significant health risk to some
health care consumers and providers. A statement on the label of
medical devices identifying the presence of natural latex, and its
risks, is considered to be necessary for the safe and effective use of
such devices. The primary purpose of such a statement is to inform
health care professionals and consumers about the presence and risks of
natural rubber latex, and to ensure a safe medical environment for
persons who have been identified as sensitive to natural rubber latex.
The agency believes that a statement on the labeling of the devices
stating that the product contains natural rubber latex, and that the
presence of natural rubber latex may cause allergic reactions, is
essential. The omission of such information from the labeling of such a
device would constitute an omission of a material fact, and would
render the device misbranded within the meaning of section 502(a) of
the act (21 U.S.C. 352(a)). Moreover, because users need to be aware of
safety problems that may be caused by natural rubber latex, FDA
believes that a device containing natural rubber latex, which is not
labeled with information regarding the presence of natural rubber latex
and its potential risks, fails to bear adequate directions for use, and
is, therefore, also misbranded under section 502(f)(1) of the act.
Section 502(c) of the act provides that a device is misbranded
``[i]f any word, statement, or other information required by or under
authority of this Act to appear on the label or labeling is not
prominently placed thereon with such conspicuousness (as compared with
other words, statements, designs, or devices, in the labeling) and in
such terms as to render it likely to be read and understood by the
ordinary individual under customary conditions of purchase and use.''
Accordingly, the proposed regulation would require the rubber latex
sensitivity statement to be displayed prominently and conspicuously on
the device labeling. If the labeling statement is not prominently
displayed, the product would be deemed misbranded under section 502(c)
of the act.
Accordingly, under the proposed rule, any natural rubber latex-
containing medical device that is not labeled as required, and that is
initially introduced or initially delivered for introduction into
interstate commerce after the effective date of the final rule, would
be misbranded under sections 201(n) and 502(a), (c), and (f)(1) of the
act.
FDA believes that it is also necessary to prohibit certain labeling
statements on devices that contain natural rubber latex. FDA has
received reports of sensitivity to medical gloves labeled as
``hypoallergenic.'' FDA believes that this term, traditionally used
with cosmetics, erroneously implies that the user of products labeled
as hypoallergenic is assured that the risk of an allergic reaction to
the chemicals or other materials in the products would be minimal. In
the past, use of the ``hypoallergenic'' label has been based on results
of the modified (human) Draize test. While this test may be appropriate
for detecting sensitivity to residual levels of processing chemicals,
the test cannot accurately detect the presence or absence of natural
latex protein levels. Furthermore, current manufacturing processes
cannot remove from devices the natural latex proteins below the level
to which some individuals may be sensitive. Thus the risk of allergic
reaction remains.
Therefore, the agency believes that the presence of the term
``hypoallergenic''
[[Page 32620]]
on the labeling of a natural rubber latex-containing device is false
and misleading because it incorrectly implies that the product labeled
as ``hypoallergenic'' may be used safely by latex sensitive persons.
FDA also believes that products with such labeling fail to bear
adequate directions for use because they do not state that rubber
latex-containing products labeled as hypoallergenic may still cause
allergic reactions. For these reasons, FDA is proposing that the
hypoallergenic claim be removed from the labeling of natural rubber
latex-containing medical devices. Accordingly, under the proposed rule,
FDA would consider natural rubber latex-containing medical devices
labeled as hypoallergenic that are initially introduced or delivered
for introduction after the effective date of the final rule, to be
misbranded under section 502(a) and (f)(1) of the act. Although
manufacturers would no longer be permitted to label their rubber latex-
containing devices as ``hypoallergenic,'' persons wishing to make
claims regarding the sensitizing potential of manufacturing chemical
residues (MTB's, thiurams, and carbamates) in finished latex products
should contact the Division of Small Manufacturers Assistance (1-800-
638-2041) and request a copy of the guidance document entitled
``Testing for Skin Sensitization to Chemicals in Latex Products.''
FDA does not intend to require a new submission under section
510(k) of the act (21 U.S.C. 360) (510(k) submission) based upon
labeling changes made to comply with this proposed regulation, provided
that no other changes requiring a new 510(k) submission under 21 CFR
807.81 are made to the device. FDA does not intend to require
manufacturers of devices subject to an approved premarket approval
(PMA) application to submit a PMA supplement under 21 CFR 814.39(d),
for any change to the product labeling that would be required by this
regulation. FDA intends, instead, to require manufacturers to submit an
annual report under 21 CFR 814.39(e) for such changes.
III. Request for Comments
FDA recognizes that this regulation applies to an array of devices
that vary widely in their manufacture and use. FDA welcomes comments on
all aspects of the regulation, but particularly invites comments on the
following areas:
1. Some of the devices to which this regulation applies may be sold
in bulk packages which are then divided up and used individually. How
can FDA best ensure that the message that the regulation is intended to
convey reaches the ultimate user?
2. It has been suggested that the message could be conveyed by
using a symbol, especially on smaller devices. FDA invites comments on
whether using a symbol would be useful, and, if so, what would be an
appropriate symbol?
IV. Exemptions and Variances
Affected persons may request an exemption or variance from the
requirements of this regulation, if they believe that full compliance
with the regulation is not necessary for the safe and effective use of
the device. Requests for exemption or variance must be submitted in
accordance with the requirements for a citizen petition set forth in 21
CFR 10.30.
V. Environmental Impact
The agency has determined under 21 CFR 25.24(e)(2) that this action
is 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.
VI. Analysis of Impacts
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 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 so 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 proposed rule primarily requires a labeling
change which would not have a significant economic impact on small
entities, because the 180 days before the final rule based upon this
proposal would become effective will allow most manufacturers to
exhaust their existing supply of labels. Therefore, under the
Regulatory Flexibility Act, no further analysis is required.
VII. Paperwork Reduction Act of 1995
FDA tentatively concludes that the labeling requirements in this
proposed rule are not subject to review by the Office of Management and
Budget because they do not constitute a ``collection of information''
under the Paperwork Reduction Act of 1995 (Pub. L. 104-13). Rather, the
proposed warning statements are ``public disclosure of information
originally supplied by the Federal Government to the recipient for the
purpose of disclosure to the public'' (5 CFR 1320.3(c)(2)).
VIII. Comments
Interested persons may submit written comments regarding this
proposed rule, by September 23, 1996, to the Dockets Management Branch
(address above). Two copies of any comments are to be submitted, except
that individuals may submit one copy. Comments are to be identified
with the docket number found in brackets in the heading of this
document. Received comments may be seen in the office above between 9
a.m. and 4 p.m., Monday through Friday.
IX. References
The following references have been placed on display in the Dockets
Management Branch (address above) and may be seen by interested persons
between 9 a.m. and 4 p.m., Monday Through Friday.
1. ``Introduction to Latex Compounding and Processing,'' The
Vanderbilt Latex Handbook, 3d edition, 1987.
2. Turjanmaa, K., ``Incidence of Immediate Allergy to Latex
Gloves in Hospital Personnel,'' Contact Dermatitis, 17: 27-275,
1987.
3. Turjanmaa, K., K. Laurila, S. Makinen-Kiljunen, and T.
Reunala, ``Rubber Contact Urticaria-Allergenic Properties of 19
Brands of Latex Gloves,'' Contact Dermatitis, 19: 362-364, 1989.
4. Turjanmaa, K. and T. Reunala, ``Condoms as a Source of Latex
Allergen and Cause of Contact Urticaria,'' Contact Dermatitis, 20:
360-364, 1989.
5. FDA medical alert--allergenic reactions to latex-containing
medical devices, March 29, 1991.
6. Heese, A., J. Hintzenstern, K-P Peters, H. Koch, and O.
Hornstein, ``Allergic and Irritant Reactions to Rubber Gloves in
Medical Health Services,'' Journal of the American Academy of
Dermatology, No. 5 (part 1): 831-839, November, 1991.
7. Hintzenstern, J., A. Heese, H. Koch, K-P Peters, and O.
Hornstein, ``Frequency, Spectrum and Occupational Relevance of Type
IV Allergies to Rubber Chemicals,'' Contact Dermatitis, 24: 244-252,
1991.
8. Tomazic, V., T. Withrow, B. Fisher, and S. Dillard, ``Short
Analytical Review-Latex-
[[Page 32621]]
Associated Allergies and Anaphylactic Reactions,'' Clinical
Immunology and Immunopathology, 64: 89-97, 1992.
9. Slater, J. and S. Chhabra, ``Latex Antigens,'' Journal of
Allergy and Clinical Immunology, 89: 673-678, 1992.
10. Lahti, A. and K. Turjanmaa, ``Prick and Use Tests with 6
Globe Brands in Patients with Immediated Allergy to Rubber
Proteins,'' Contact Dermatitis, 26: 259-262, 1992.
11. Jaeger, D., D. Kleinhans, A. Czuppon, and X. Baur, ``Latex-
Specific Proteins Causing Immediate-Type Cutaneous, Nasal,
Bronchial, and Systemic Reactions,'' Journal of Allergy and Clinical
Immunology, 89: 759-768, 1992.
12. Berky, Z., J. Luciano, and W. James, ``Latex Glove Allergy--
A Survey of the US Army Dental Corps,'' Journal of the American
Medical Association, 268: 2695-2697, 1992.
13. Gonzalez, E., ``Latex Hypersensitivity: A New and Unexpected
Problem,'' Hospital Practice, pp. 137-151, February 15, 1996.
14. Stehlin, D., ``Latex Allergies: When Rubber Rubs the Wrong
Way,'' FDA Consumer, pp. 16-21, September 1992.
15. ACAI (American College of Allergy & Immunology), Interim
Recommendations to Health Professionals & Organizations Regarding
Latex Allergy Precautions, March, 1992.
16. Young, M., M. Meyers, L. McCulloch, and L. Brown, ``Latex
Allergy-A guideline for perioperative nurses,'' AORN Journal, 56:
488-502, 1992.
17. Hamann, C. P., ``Natural Rubber Latex Protein Sensitivity in
Review,'' American Journal of Contact Dermatitis, 4:1. March 1993,
4-21.
18. Marzulli, F. N., and H. I. Maibach, ``The Use of Graded
Concentrations in Studying Skin Sensitizers: Experimental Contact
Sensitization in Man,'' Food, Cosmetics, and Toxicology, 12:219-227,
1974.
19. USDHHS/PHS/FDA/CDRH, Regulatory Requirements for Medical
Gloves--A Workshop Manual, FDA 93-4257, as amended May, 1993.
List of Subjects in 21 CFR Part 801
Labeling, Medical devices, and Reporting and recordkeeping
requirements.
Therefore, under the Federal Food, Drug, and Cosmetic Act, and
under authority delegated to the Commissioner of Food and Drugs, 21 CFR
part 801 is amended as follows:
PART 801--LABELING
1. The authority citation for 21 CFR Part 801 continues to read as
follows:
Authority: Secs. 201, 301, 501, 502, 507, 519, 520, 701, 704 of
the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321, 331, 351,
352, 357, 360i, 360j, 371, 374).
2. New Sec. 801.437 is added to subpart H to read as follows:
Sec. 801.437 User labeling for rubber latex-containing medical
devices.
(a) This section applies to all medical device products composed of
or containing, or having components which are composed of or contain,
natural rubber latex that may directly or indirectly contact living
human tissue. The term ``natural rubber latex'' includes natural rubber
latex, dry rubber, and synthetic latex which contains natural rubber
latex in its formulation.
(b) Data in the Medical Device Reporting System and scientific
literature indicate that some individuals may be at risk of a severe
anaphylactic reaction to natural rubber latex proteins. In order to
protect the public health and minimize the risk to rubber latex
sensitive individuals, medical devices containing natural rubber latex
shall be labeled as set forth in paragraphs (c) and (d) of this
section.
(c) Natural rubber latex-containing medical devices shall
prominently and legibly bear one of the following statements on the
device labeling, in conformance with section 502(c) of the act: ``This
product contains natural rubber latex which may cause allergic
reactions in some individuals''; ``This product has components that
contain natural rubber latex which may cause allergic reactions in some
individuals''; or ``This product is made from natural rubber latex
which may cause allergic reactions in some individuals''.
(d) Because the natural rubber latex proteins to which some
individuals are sensitive cannot be completely removed from latex
gloves, the term ``hypoallergenic'' is inappropriate. Therefore, rubber
latex gloves and other natural rubber latex-containing medical devices
shall not contain the term ``hypoallergenic'' on their labeling.
(e) Any affected person may request an exemption or variance from
the requirements of this section by submitting a citizen petition in
accordance with Sec. 10.30 of this chapter.
(f) Any device subject to this section that is not labeled in
accordance with paragraphs (c) and (d) of this section, and that is
initially introduced or initially delivered for introduction into
interstate commerce after the effective date of this final regulation,
is misbranded under sections 201(n) and 502(a) and (f)(1) of the act.
Any such device that is not labeled in accordance with paragraph (c) of
this section, is also misbranded under section 502(c) of the act.
Dated: June 17, 1996.
William K. Hubbard,
Associate Commissioner for Policy Coordination.
[FR Doc. 96-15990 Filed 6-21-96; 8:45 am]
BILLING CODE 4160-01-F
Complete official Federal Register PDF
FR Doc. 96-15986 Proposed Revision of Class D and E Airspace; Bethel, AK
[Federal Register Volume 61, Number 122 (Monday, June 24, 1996)]
[Proposed Rules]
[Pages 32371-32372]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15986]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 71
[Airspace Docket No. 96-AAL-4]
Proposed Revision of Class D and E Airspace; Bethel, AK
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: This revision modifies the Class D and Class E airspace at
Bethel, AK, to accommodate Visual Flight Rules (VFR) traffic in the
Bethel area, landing and departing from Hanger Lake located about 2.5
miles northeast of the Bethel VORTAC. Several Bethel Airport user
groups, during public discussion on the decommission of the Bethel
Approach Control, requested an exclusion area for Hanger Lake to
accommodate VFR landings and takeoffs during Instrument Flight Rules
(IFR) weather conditions at Bethel. The area would be depicted on
aeronautical charts for pilot reference. The intended effect of this
proposal is to provide adequate exclusion from Bethel, AK, Class D and
Class E airspace to accommodate Bethel user group requirements at
Hanger Lake.
DATES: Comments must be received on or before August 12, 1996.
ADDRESSES: Send comments on the proposal in triplicate to: Manager,
System Management Branch, AAL-530, Docket No. 96-AAL-4, Federal
Aviation Administration, 222 West 7th Avenue, Box 14, Anchorage, AK
99513-7587.
The official docket may be examined in the Office of the Assistant
Chief Counsel for the Alaskan Region at the same address.
An informal docket may also be examined during normal business
hours in the Office of the Manager, System Management Branch, Air
Traffic Division, at the address shown above.
FOR FURTHER INFORMATION CONTACT:
Robert van Haastert, System Management Branch, AAL-538, Federal
Aviation Administration, 222 West 7th Avenue, Box 14, Anchorage, AK
99513-7587; telephone number (907) 271-5902.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested parties are invited to participate in this proposed
rulemaking by submitting such written data, views, or arguments as they
may desire. Comments that provide the factual basis supporting the
views and suggestions presented are particularly helpful in developing
reasoned regulatory decisions on the proposal. Comments are
specifically invited on the overall regulatory, aeronautical, economic,
environmental, and energy-related aspects of the proposal.
Communications should identify the airspace docket number and be
submitted in triplicate to the address listed above. Commenters wishing
the FAA to acknowledge receipt of their comments on this notice must
submit with those comments a self-addressed, stamped postcard on which
the following statement is made: ``Comments to Airspace Docket No. 96-
AAL-4.'' The postcard will be date/time stamped and returned to the
commenter. All communications received on or before the specified
closing date for comments will be considered before taking action on
the proposed rule. The proposal contained in this notice may be changed
in light of comments received. All comments submitted will be available
for examination in the System Management Branch, Air Traffic Division,
Federal Aviation Administration, 222 West 7th Avenue, Box 14,
Anchorage, AK, both before and after the closing date for comments. A
report summarizing each
[[Page 32372]]
substantive public contact with FAA personnel concerned with this
rulemaking will be filed in the docket.
Availability of NPRM's
Any person may obtain a copy of this Notice of Proposed Rulemaking
(NPRM) by submitting a request to the System Management Branch, AAL-
530, Federal Aviation Administration, 222 West 7th Avenue, Box 14,
Anchorage, AK 99513-7587. Communications must identify the notice
number of this NPRM. Persons interested in being placed on a mailing
list for future NPRM's should also request a copy of Advisory Circular
No. 11-2A which describes the application procedure.
The Proposal
The FAA is considering an amendment to part 71 of the Federal
Aviation Regulations (14 CFR part 71) to modify Class D and Class E
airspace at Bethel, AK. Changes to the Bethel airspace will incorporate
an exclusion below 1,100 feet MSL between the 061 deg. radial and the
081 deg. radial from 2.9 nautical miles northeast to the Bethel VORTAC.
The changes are required to create a Hanger Lake exclusion area as
requested by Bethel Airport user groups for VFR operations when Bethel
has IFR weather conditions. The area would be depicted on aeronautical
charts for pilot reference. The coordinates for this airspace docket
are based on North American Datum 83. Class D airspace area
designations are published in paragraph 5000 of FAA Order 7400.9C,
dated August 17, 1995, and effective September 16, 1995, which is
incorporated by reference in 14 CFR 71.1 (58 FR 36298; July 6, 1993).
The Class E airspace areas designated as 700/1200 foot transition areas
are published in paragraph 6005 of FAA Order 7400.9C, dated August 17,
1995, and effective September 16, 1995, which is incorporated by
reference in 14 CFR 71.1 (58 FR 36298; July 6, 1993). The Class D and
Class E airspace designations listed in this document would be
published subsequently in the Order. The FAA has determined that these
proposed regulations only involve an established body of technical
regulations for which frequent and routing amendments are necessary to
keep them operationally current. It, therefore--(1) is not a
``significant regulatory action'' under Executive Order 12866; (2) is
not a ``significant rule'' under DOT Regulatory Policies and Procedures
(44 FR 11034); February 26, 1979); and (3) does not warrant preparation
of a regulatory evaluation as the anticipated impact is so minimal.
Since this is a routine matter that will only affect air traffic
procedures and air navigation, it is certified that this rule, when
promulgated, will not have a significant economic impact on a
substantial number of small entities under the criteria of the
Regulatory Flexibility Act.
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference, Navigation (air).
The Proposed Amendment
In consideration of the foregoing, the Federal Aviation
Administration proposes to amend 14 CFR part 71 as follows:
PART 71--[AMENDED]
1. The authority citation for 14 CFR Part 71 continues to read as
follows:
Authority: 49 U.S.C. 40103, 40113, 40120; E.O. 10854, 24 FR
9565, 3 CFR, 1959-1963 Comp., p. 389; 49 U.S.C. 106(g), 14 CFR
11.69.
Sec. 71.1 [Amended]
2. The incorporation by reference in 14 CFR 71.1 of Federal
Aviation Administration Order 7400.9C, Airspace Designation and
Reporting Points, dated August 17, 1995, and effective September 16,
1995, is amended as follows:
Paragraph 5000 Class D Airspace
* * * * *
AAL AK D Bethel, AK
Bethel Airport, AK
(Lat 60 deg.46'47'' N, long. 161 deg.50'17'' W)
Bethel VORTAC
(Lat. 60 deg.47'05'' N, long. 161 deg.49'27'' W)
That airspace extending upward from the surface to and
including, 2,600 feet MSL within a 4.1-mile radius of the Bethel
Airport, excluding that portion below 1,100 feet MSL between the
061 deg. radial and the 081 deg. radial from 2.9 miles northeast of
the Bethel VORTAC. This Class D airspace area is effective during
the specific dates and times established in advance by a Notice to
Airmen. The effective date and time will thereafter be continuously
published in the Airport/Facility Directory.
* * * * *
Paragraph 6005 Class E airspace extending upward from 700 feet or
more above the surface of the earth.
* * * * *
AAL AK E4 Bethel, AK
Bethel Airport, AK
(Lat. 60 deg.46'47'' N, long. 161 deg.50'17'' W)
Bethel VORTAC
(Lat. 60 deg.47'05'' N, long. 161 deg.49'27' W)
That airspace extending upward from the surface within 3 miles
each side of the 022 deg. radial from the Bethel VORTAC, extending
from the 4.1-mile radius of the Bethel Airport to 8.2 miles
northeast of the airport, excluding that portion below 1,100 feet
MSL between the 061 deg. radial and the 081 deg. radial from 2.9
miles northeast of the Bethel VORTAC, within 3.4 miles each side of
the Bethel VORTAC 006 deg. radial, extending from the 4.1-mile
radius of the Bethel Airport to 11 miles north of the Bethel VORTAC
and within 3.5 miles each side of the Bethel VORTAC 213 deg. radial
extending from the 4.1-mile radius of the Bethel Airport to 10 miles
southwest of the airport.
* * * * *
Issued in Anchorage, AK, on June 12, 1996.
Willis C. Nelson,
Manager, Air Traffic Division, Alaskan Region.
[FR Doc. 96-15986 Filed 6-21-96; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-15985 Proposed Revision of Class E Airspace; Wrangell, St. Paul Island, Petersburg, and Sitka, AK; Establishment of Class E Airspace at Noatak, AK
[Federal Register Volume 61, Number 122 (Monday, June 24, 1996)]
[Proposed Rules]
[Pages 32372-32374]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15985]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 71
[Airspace Docket No. 96-AAL-2]
Proposed Revision of Class E Airspace; Wrangell, St. Paul Island,
Petersburg, and Sitka, AK; Establishment of Class E Airspace at Noatak,
AK
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: This notice proposes to revise Class E airspace at Wrangell,
St. Paul Island, Petersburg, and Sitka, AK, and establish Class E
airspace at Noatak, AK. The FAA has developed Global Positioning System
(GPS) instrument approach procedures at Wrangell Airport, James A.
Johnson Airport (Petersburg), and Sitka Airport; a Microwave Landing
System (MLS) approach procedure at St. Paul Island Airport; and Non-
directional beacon (NDB)/Distance Measuring Equipment (DME) approach
procedure at Noatak Airport, Alaska. Changes to the Wrangell airspace
incorporated a new Wrangell Localizer course, provided new segment
widths, and will declutter the chart depiction. Changes to the
Petersburg airspace incorporated protected airspace for transition to
approach, provided new segment widths to Fredericks Point NDB 140 deg.
bearing, corrected the misspelling of Level Island, and changed the
altitude needed for the missed approaches. Changes to the Sitka
airspace incorporated protected airspace for the holding pattern.
Changes to the St. Paul Island airspace incorporated new coordinates
for the airport and non-directional beacon. Noatak Class E airspace
will be established for NDB/DME instrument approach procedures. This
action will change the Noatak Airport status from Visual Flight Rules
(VFR) to Instrument Flight Rules (IFR).
[[Page 32373]]
The areas would be depicted on aeronautical charts for pilot reference.
The intended effect of this proposal is to provide adequate Class E
airspace to contain IFR operations in controlled airspace.
DATES: Comments must be received on or before August 12, 1996.
ADDRESSES: Send comments on the proposal in triplicate to: Manager,
System Management Branch, AAL-530, Docket No. 96-AAL-2, Federal
Aviation Administration, 222 West 7th Avenue, Box 14, Anchorage, AK
99513-7587.
The official docket may be examined in the Office of the Assistant
Chief Counsel for the Alaskan Region at the same address.
An informal docket may also be examined during normal business
hours in the Office of the Manager, System Management Branch, Air
Traffic Division, at the address shown above.
FOR FURTHER INFORMATION CONTACT:
Robert van Haastert, System Management Branch, AAL-538, Federal
Aviation Administration, 222 West 7th Avenue, Box 14, Anchorage, AK
99513-7587; telephone number (907) 271-5902.
SUPPLEMENTARY INFORMATION:
Comments invited
Interested parties are invited to participate in this proposed
rulemaking by submitting such written data, views, or arguments as they
may desire. Comments that provide the factual basis supporting the
views and suggestions presented are particularly helpful in developing
reasoned regulatory decisions on the proposal. Comments are
specifically invited on the overall regulatory, aeronautical, economic,
environmental, and energy-related aspects of the proposal.
Communications should identify the airspace docket number and be
submitted in triplicate to the address listed above. Commenters wishing
the FAA to acknowledge receipt of their comments on this notice must
submit with those comments a self-addressed, stamped postcard on which
the following statement is made: ``Comments to Airspace Docket No.96-
AAL-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 System Management Branch, Air Traffic Division,
Federal Aviation Administration, 222 West 7th Avenue, Box 14,
Anchorage, AK, both before and after the closing date for comments. A
report summarizing each substantive public contact with FAA personnel
concerned with this rulemaking will be filed in the docket.
Availability of NPRM's
Any person may obtain a copy of this Notice of Proposed Rulemaking
(NPRM) by submitting a request to the System Management Branch, AAL-
530, Federal Aviation Administration, 222 West 7th Avenue, Box 14,
Anchorage, AK 99513-7587. Communications must identify the notice
number of this NPRM. Persons interested in being placed on a mailing
list for future NPRM's should also request a copy of Advisory Circular
No. 11-2A which describes the application procedure.
The Proposal
The FAA is considering an amendment to part 71 of the Federal
Aviation Regulations (14 CFR part 71) to modify Class E airspace at
Wrangell, St. Paul Island, Petersburg, and Sitka, AK, and establishing
Class E airspace at Noatak, AK. The FAA has developed IFR approach and
departure procedures using Global Positioning System (GPS) at Wrangell
Airport, James A. Johnson Airport (Petersburg), and Sitka Airport; a
Microwave Landing System (MLS) approach procedures at St. Paul Island
Airport; and NDB/DME approach procedures at Noatak, Alaska. The
Wrangell airspace will incorporate a new Wrangell Localizer course,
provide new segment widths, and the area chart will have a cleaner,
less cluttered depiction. The Petersburg airspace will incorporate
protected airspace for the transition to approach, provide new segment
widths along the Fredericks Point NDB 140 deg. bearing, corrected the
spelling of Level Island, and lowered the altitude needed for missed
approaches from 5,500 to 3,300 feet. The Sitka airspace will
incorporate protected airspace for the holding pattern to runway 11.
The St. Paul Island airspace will incorporate the revised coordinates
for the NDB and airport. New Class E airspace will be established for
Noatak, AK, to accommodate a new NDB/DME instrument approach procedure.
The Noatak Airport status will change from VFR to IFR. The areas would
be depicted on aeronautical charts for pilot reference. The coordinates
for this airspace docket are based on North American Datum 83. Class E
airspace areas designated as 700/1200 foot transition areas are
published in Paragraph 6005 of FAA Order 7400.9C, dated August 17,
1995, and effective September 16, 1995, which is incorporated by
reference in 14 CFR 71.1 (58 FR 36298; July 6, 1993). The Class E
airspace designation listed in this document would be published
subsequently in the Order. The FAA has determined that these proposed
regulations only involve an established body of technical regulations
for which frequent and routine amendments are necessary to keep them
operationally current. It, therefore--(1) is not a ``significant
regulatory action'' under Executive Order 12866; (2) is not a
``significant rule'' under DOT Regulatory Policies and Procedures (44
FR 11034; February 26, 1979); and (3) does not warrant preparation of a
regulatory evaluation as the anticipated impact is so minimal. Since
this is a routine matter that will only affect air traffic procedures
and air navigation, it is certified that this rule, when promulgated,
will not have a significant economic impact on a substantial number of
small entities under the criteria of the Regulatory Flexibility Act.
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference, Navigation (air).
The Proposed Amendment
In consideration of the foregoing, the Federal Aviation
Administration proposes to amend 14 CFR part 71 as follows:
PART 71--[AMENDED]
1. The authority citation for 14 CFR Part 71 continues to read as
follows:
Authority: 49 U.S.C. 40103, 40113, 40120; E.O. 10854, 24 FR
9565, 3 CFR, 1959-1963 Comp., p. 389; 49 U.S.C. 106(g), 14 CFR
11.69.
Sec. 71.1 [Amended]
2. The incorporation by reference in 14 CFR 71.1 of 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 6002 The Class E airspace areas listed below are
designated as a surface area for an airport.
* * * * *
AAL AK E2 Petersburg, AK [New]
Petersburg Airport, AK
(Lat. 56 deg.48'06'' N, long. 132 deg.56'43'' W)
Within a 4.1-mile radius of the James A. Johnson Airport,
Petersburg, Alaska. The Class E airspace is effective during the
specific dates and times established in advance by a Notice to
Airmen. The effective date and time will thereafter be continuously
[[Page 32374]]
published in the Supplement Alaska (Airport/Facility Directory).
* * * * *
AAL AK E2 Wrangell, AK [New]
Wrangell Airport, AK
(Lat. 56 deg.29'04'' N, long. 132 deg.22'11'' W)
Within a 4.1-mile radius of the Wrangell Airport, Alaska. The
Class E airspace is effective during the specific dates and times
established in advance by a Notice to Airmen. The effective date and
time will thereafter be continuously published in the Supplement
Alaska (Airport/Facility Directory).
* * * * *
Paragraph 6005 Class E airspace extending upward from 700 feet or
more above the surface of the earth.
* * * * *
AAL AK E5 Wrangell, AK [Revised]
Wrangell Airport, AK
(Lat. 56 deg.29'04'' N, long. 132 deg.22'11'' W)
Wrangell Localizer
(Lat 56 deg.29'03'' N, long. 132 deg.21'45'' W)
Level Island VOR/DME
(Lat. 56 deg.28'04'' N, long. 133 deg.04'59'' W)
That airspace extending upward from 700 feet above the surface
within a 6.5-mile radius of the Wrangell Airport and within 2.5
miles south and 3.5 miles north of the Wrangell Localizer front
course extending from the 6.5-mile radius to 17.5; miles northwest
of the airport; and that airspace extending upward from 1,200 feet
above the surface within 6 miles either side of the Wrangell
Localizer front course extending from 14.5 miles west of the airport
to 25 miles west of the airport and within 4 miles each side of the
Level Island VOR/DME 086 deg. radial extending from the VOR/DME to
the Localizer; and within 5 miles west and 6 miles east of the
148 deg. bearing from the Wrangell NDB extending to 25 miles
southeast of the airport; and that airspace extending upward from
5,700 feet MSL within 32 miles of the Level Island VOR/DME extending
clockwise from the VOR/DME 327 deg. radial to the VOR/DME 035 deg.
radial.
* * * * *
AAL AK E5 Petersburg, AK [Revised]
Petersburg Airport, AK
(Lat. 56 deg.48'06'' N, long. 132 deg.56'43'' W)
Level Island VOR/DME
(Lat. 56 deg.28'04'' N, long. 133 deg.04'59'' W)
Petersburg Localizer
(Lat. 56 deg.48'02'' N, long. 132 deg.55'34'' W)
Fredericks Point NDB
(Lat. 56 deg.47'32'' N, long. 132 deg.49'15'' W)
That airspace extending upward from 700 feet above the surface
within a 6.5 mile radius of the Petersburg Airport; and that
airspace extending upward from 1,200 feet above the surface within 4
miles east and 7 miles west of the Petersburg Localizer front course
extending from the 6.5-mile radius to 51 miles north of the Level
Island VOR/DME and within 4 miles northeast and 5 miles southwest of
the Fredericks Point NDB 140 deg. bearing extending from the 6.5-
mile radius to 10 miles southeast of the NDB; and that airspace
extending upward from 3,300 feet MSL within 5 miles either side of
the Level Island VOR/DME 013 deg. radial from the 6.5-mile radius to
the VOR/DME; and that airspace extending upward from 4,200 feet MSL
within 28.6 miles of the Level Island VOR/DME extending clockwise
from the VOR/DME 011 deg. radial to the 148 deg. radial; and that
airspace extending upward from 5,700 feet MSL within 51 miles of the
VOR/DME extending clockwise from the Level Island VOR/DME 326 deg.
radial to the 011 deg. radial; excluding that airspace within the
Sitka, AK, Class E airspace area.
* * * * *
AAL AK E5 Sitka, AK [Revised]
Sitka Airport, AK
(Lat. 57 deg.02'50'' N, long. 135 deg.21'41'' W)
Biorka Island VORTAC
(Lat. 56 deg.51'34'' N, long. 135 deg.33'04'' W)
Sitka Localizer
(Lat. 57 deg.02'53'' N, long. 135 deg.21'54'' W)
That airspace extending upward from 700 feet above the surface
within a 6.6-mile radius of the Sitka Airport and within 4 miles
each side of the 029 deg. and 209 deg. radials of the Biorka Island
VORTAC extending from the 6.6-mile radius to 1 mile south of the
VORTAC and within a 14-mile radius of the Biorka Island VORTAC
extending clockwise from the 127 deg. radial to the 323 deg. radial
and within 4 miles west and 8 miles east of the Biorka Island VORTAC
209 deg. radial extending from the 14-mile radius to 16 miles
southwest of the VORTAC and within 4 miles east and 6 miles west of
the Sitka Localizer front course extending from the Sitka Localizer
to 22 miles northwest of the airport; and that airspace extending
upward from 1,200 feet above the surface within a 40-mile radius of
the Biorka Island VORTAC; and that airspace extending upward from
5,500 feet MSL within an 85-mile radius of the VORTAC; excluding
that airspace within Control 1487L; more than 12 miles from the
shoreline; and within the Juneau, AK, and the Ketchikan, AK, Class E
airspace areas.
* * * * *
AAL AK E5 St. Paul Island, AK [Revised]
St. Paul Island Airport, AK
(Lat. 57 deg.10'10'02.30'' N, long. 170 deg.13'13.60'' W)
St. Paul Localizer
(Lat. 57 deg.10'44.56'' N, long. 170 deg.13'00.39'' W)
St. Paul NDB/DME
(Lat. 57 deg.09'28'' N, long. 170 deg.13'51'' W)
That airspace extending upward from 700 feet above the surface
within a 6.5-mile radius of the St. Paul Island Airport and within 4
miles west and 8 miles east of the St. Paul Localizer front course
extending from 4 miles south of the St. Paul NDB/DME to 20 miles
south of the NDB/DME and within 4 miles east and 8 miles west of the
St. Paul Localizer back course extending from 5 miles north on the
NDB/DME to 21 miles north of the NDB/DME and within 4 miles east and
8 miles west of the 018 deg. bearing from the NDB/DME extending from
6 miles north of the NDB/DME to 22 miles north of the NDB/DME; and
that airspace extending upward from 1,200 feet above the surface
within 14 miles of the NDB/DME.
* * * * *
AAL AK E5 Noatak, AK [New]
Noatak Airport, AK
(Lat. 67 deg.33'58'' N, long. 162 deg.58'40'' W)
Noatak NDB/DME
(Lat. 67 deg.34'19'' N, long. 162 deg.58'26'' W)
That airspace extending upward from 700 feet MSL above the
surface within a 6.5-mile radius of the Noatak Airport and within 4
miles either side of the 197 deg. bearing from the Noatak NDB/DME
from the 6.5-mile radius to 10 miles southwest of the NDB/DME; and
that airspace extending upward from 1,200 feet above the surface
within 4 miles either side of the 197 deg. bearing from the Noatak
NDB/DME extending from the 6.5-mile radius to 14 miles southwest and
within 4 miles east and 5 miles west of the 017 deg. bearing from
the NDB/DME extending from the 6.5-mile radius to 11 miles northeast
of the NDB/DME.
* * * * *
Issued in Anchorage, AK, on June 12, 1996.
Willis C. Nelson,
Manager, Air Traffic Division Alaskan Region.
[FR Doc. 96-15985 Filed 6-21-96; 8:45 am]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-15981 Proposed Amendment to Class E Airspace; Tampa, FL
[Federal Register Volume 61, Number 122 (Monday, June 24, 1996)]
[Proposed Rules]
[Pages 32374-32375]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15981]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 71
[Airspace Docket No. 96-ASO-12]
Proposed Amendment to Class E Airspace; Tampa, FL
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: This notice proposes to modify Class E airspace at Tampa, FL.
A GPS RWY 18 Standard Instrument Approach Procedure (SIAP) has been
developed for Vandenburg Airport. Controlled airspace extending upward
from 700 feet above the surface (AGL) is needed to accommodate this
SIAP and for instrument flight rules (IFR) operations at Vandenburg
Airport. The operating status of the airport will change from VFR to
include IFR operations concurrent with publication of this SIAP.
DATES: Comments must be received on or before August 1, 1996.
ADDRESSES: Send comments on the proposal in triplicate to: Federal
Aviation Administration, Docket No. 96-ASO-12, Manager, Operations
Branch, ASO-530, P.O. Box 20636, Atlanta, Georgia 30320.
The official docket may be examined in the Office of the Assistant
Chief Counsel for Southern Region, Room 550, 1701 Columbia Avenue,
College Park, Georgia 30337, telephone (404) 305-5586.
[[Page 32375]]
FOR FURTHER INFORMATION CONTACT:
Benny L. McGlamery, Operations Branch, Air Traffic Division, Federal
Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320;
telephone (404) 305-5570.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested parties are invited to participate in this proposed
rulemaking by submitting such written data, views or arguments as they
may desire. Comments that provide the factual basis supporting the
views and suggestions presented are particularly helpful in developing
reasoned regulatory decisions on the proposal. Comments are
specifically invited on the overall regulatory, aeronautical, economic,
environmental, and energy-related aspects of the proposal.
Communications should identify the airspace docket and be submitted in
triplicate to the address listed above. Commenters wishing the FAA to
acknowledge receipt of their comments on this notice must submit with
those comments a self-addressed, stamped postcard on which the
following statement is made: ``Comments to Airspace Docket No. 96-ASO-
12.'' The postcard will be date/time stamped and returned to the
commenter. All communications received 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 the comments received. All comments submitted will be
available for examination in the Office of the Assistant Chief Counsel
for Southern Region, Room 550, 1701 Columbia Avenue, College Park,
Georgia 30337, both before and after the closing date for comments. A
report summarizing each substantive public contact with FAA personnel
concerned with this rulemaking will be filed in the docket.
Availability of NPRMs
Any person may obtain a copy of this Notice of Proposed Rulemaking
(NPRM) by submitting a request to the Federal Aviation Administration,
Manager, Operations Branch, ASO-530, Air Traffic Division, P.O. Box
20636, Atlanta, Georgia 30320. Communications must identify the notice
number of this NPRM. Persons interested in being placed on a mailing
list for future NPRMs should also request a copy of Advisory Circular
No. 11-2A which describes the application procedure.
The Proposal
The FAA is considering an amendment to Part 71 of the Federal
Aviation Regulations (14 CFR Part 71) to modify class E airspace at
Tampa, FL. A GPS RWY 13 SIAP has been developed for Vandenburg Airport.
Controlled airspace extending upward from 700 feet AGL is needed to
accommodate this SIAP and for IFR operations at Vandenburg Airport. The
operating status of the airport will change from VFR to include IFR
operations concurrent with publication of this SIAP. Class E airspace
designations for airspace areas extending upward from 700 feet or more
above the surface are published in Paragraph 6005 of FAA Order 7400.9C
dated August 17, 1995, and effective September 16, 1995, which is
incorporated by reference in 14 CFR 71.1. The Class E airspace
designation listed in this document would be published subsequently in
the Order.
The FAA has determined that this proposed regulation only involves
an established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
It, therefore, (1) is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under DOT
Regulatory Policies and Procedures (44 FR 11034; February 26, 1979);
and (3) does not warrant preparation of a regulatory evaluation as the
anticipated impact is so minimal. Since this is a routine matter that
will only affect air traffic procedures and air navigation, it is
certified that this rule, when promulgated, will not have a significant
economic impact on a substantial number of small entities under the
criteria of the Regulatory Flexibility Act.
List of Subjects in 14 CFR part 71
Airspace, Incorporation by reference, Navigation (Air).
The Proposed Amendment
In consideration of the foregoing, the Federal Aviation
Administration proposes to amend 14 CFR Part 71 as follows:
PART 71--[AMENDED]
1. The authority citation for 14 CFR Part 71 continues to read as
follows:
Authority: 49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24
FR 9565, 3 CFR, 1959-1963 Comp., p. 389; 14 CFR 11.69.
Sec. 71.1 [Amended]
2. The incorporation by reference in 14 CFR 71.1 of Federal
Aviation Administration Order 7400.9C, Airspace Designations and
Reporting Points, dated August 17, 1995, and effective September 16,
1995, is amended as follows:
Paragraph 6005 Class E airspace areas extending upward from 700
feet above the surface of the earth.
* * * * *
ASO GA E5 Tampa, FL [Revised]
Tampa International Airport, FL
(Lat. 27 deg.58'32'' N, long. 82 deg.31'59'' W)
St. Petersburg-Clearwater International Airport
(Lat. 27 deg.54'39'' N, long. 82 deg.41'14'' W)
MacDill AFB
(Lat. 27 deg.50'57'' N, long. 82 deg.31'17'' W)
Peter O'Knight Airport
(Lat. 27 deg.54'56'' N, long. 82 deg.26'57'' W)
Albert-Whitted Airport
(Lat. 27 deg.45'54'' N, long. 82 deg.37'38'' W)
Vandenburg Airport
(Lat. 28 deg.00'33'' N, long. 82 deg.20'59'' W)
That airspace extending upward from 700 feet above the surface
within a 7-mile radius of Tampa International Airport, St.
Petersburg-Clearwater International Airport, MacDill AFB and Peter
O'Knight Airport and within a 6.3-mile radius of Albert-Whitted
Airport and Vandenburg Airport, excluding that airspace within the
Lakeland, FL, Class E airspace area.
* * * * *
Issued in College Park, Georgia, on June 5, 1996.
Benny L. McGlamery,
Acting Manager, Air Traffic Division, Southern Region.
[FR Doc. 96-15981 Filed 6-21-96; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-15973 National Park Service; Boating and Water Use Activities, Prohibited Operations
[Federal Register Volume 61, Number 122 (Monday, June 24, 1996)]
[Proposed Rules]
[Pages 32383-32385]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15973]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
National Park Service
36 CFR Part 3
RIN 1024-AC46
National Park Service; Boating and Water Use Activities,
Prohibited Operations
AGENCY: National Park Service, Interior.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The National Park Service (NPS) is proposing to amend its
boating regulations to include the authority to regulate the access to
NPS waters of individuals and vessels that have recently operated in
waters infested with injurious non-indigenous aquatic plant and animal
species. The purpose of the proposed rule is to protect park aquatic
natural resources and supporting built infrastructure. This proposed
rule includes criteria for decontamination of vessels and equipment to
allow access to park waters. In addition, these rules identify how
vessels may be allowed to operate under a permit system outlined in the
general regulations. These rules will allow the NPS to regulate
individual and vessel access to park waters to prevent the accidental
introduction of injurious exotic aquatic nuisance species into park
waters.
The NPS will use lists developed by other Federal agencies like the
U.S. Fish and Wildlife Service and various State departments of natural
resources to identify targeted prohibited species. The NPS may,
however, develop its own lists based upon sound scientific research.
Any species identified by the NPS will be listed and identified through
the public notice process. Various States have active aquatic exotic
species prevention programs and regularly identify and mark infested
bodies of water. The NPS will, through its Resource Education programs,
ensure that all park users are informed and warned about targeted
species and the proper way to control their spread by decontaminating
their vessels and associated gear. This proposed rule will bring the
NPS into conformity with programs currently in place in several states.
DATES: Written comments will be accepted through August 23, 1996.
ADDRESSES: All comments should be addressed to: Superintendent, Great
Lakes Systems Support Office, Midwest Field Area, National Park
Service, 1709 Jackson Street, Omaha, Nebraska 68102. Attention: John
Townsend.
FOR FURTHER INFORMATION CONTACT: John Townsend at the above address or
by calling 402-221-3475.
SUPPLEMENTARY INFORMATION:
Background
The NPS is granted broad statutory authority under 16 U.S.C.
Section 1 et seq. (National Park Service Organic Act) and 16 U.S.C.
Sections 1a-2(h) to ``* * * regulate the use of the Federal areas known
as national parks, monuments, and reservations * * * by such means and
measures as conform to the fundamental purpose of the said parks * * *
which purpose is to conserve the scenery and the natural and historic
objects and the wildlife therein * * *''.
[[Page 32384]]
The National Park Service Management Policies (1988) provide
overall direction in implementing the intent of this Congressional
mandate and other applicable Federal legislation. The policy of the NPS
regarding protection and management of natural resources is ``The
National Park Service will manage the natural resources of the national
park system to maintain, rehabilitate, and perpetuate their inherent
integrity'' (Chapter 4:1). Where conflict arises between human use and
resource protection, where the NPS has a ``reasonable basis to believe
a resource is or would become impaired, the Park Service may, * * *
otherwise place limitations on public use'' (Chapter 1:3).
The integrity and quality of many national park waters and aquatic
ecosystems, and dependent economic values and infrastructure, are
threatened by the introduction of a variety of injurious non-indigenous
aquatic species, both flora and fauna. These exotic aquatic animals and
plants cause irreparable harm to the core values and resources for
which the National Park System was created and can impose costly
economic impacts on businesses and government entities through loss of
production time and detection, mitigation, remediation and control
activities. It is estimated that six of the over 150 known exotic
aquatic species found within United States waters have alone caused
over $1.5 billion in damages since 1906 (U.S. Congress, Office of
Technology Assessment).
One such example is the exotic zebra mussel (Dreissena polymorpha).
The zebra mussel is a small, fresh water, filter feeding mollusk that
attaches itself to any hard surface, human-made or natural. This
species was accidently introduced into North American waters in 1986
and has since spread throughout the Great Lakes and into the major
eastern and Midwestern river systems. The ecological and economic
impacts of zebra mussels have been extensive. These include effects to
other organism, water quality, water clarity, and disruption of native
aquatic communities and impacts to navigational devices, municipal
water systems, sewage treatment plants, utility power plants, marinas
and recreational and commercial vessel owners.
The primary vector in the spread of the zebra mussel, like most
aquatic exotic species, is by in-water or trailered vessel transport
from infested to unifested waters. During the summer of 1995 zebra
mussels were found on trailered vessels as far west as California.
There is evidence that contaminated wet suits are also a vector for
accidental introduction. There is no evidence that transport by
naturals such as birds or aquatic wildlife has led to the establishment
of viable zebra mussel populations.
Additionally, on November 29, 1990, Congress passed the
``Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990''
(16 U.S.C. 4701) to do just what this regulation proposes--to prevent
introductions or control infestations of injurious non-indigenous
aquatic nuisance species.
This proposed rule will allow the NPS to regulate individual and
vessel access to park waters to prevent or minimize the risk of
unintentional introduction of injurious non-indigenous aquatic species
into park waters. Minimizing such risks is particularly important since
once introduced and established, many exotic species are extremely
costly and nearly impossible to eliminate. This proposed rule also
prohibits the transportation, introduction or attempted introduction of
injurious non-indigenous aquatic species into park waters.
Public Participation
It is the policy of the Department of the Interior, whenever
practicable, to afford the public an opportunity to participate in the
rulemaking process. Accordingly, interested persons may submit written
comments regarding this proposed rule to the address noted at the
beginning of this rulemaking. The NPS will review all comments and
consider making changes to the rule based upon analysis of the
comments.
Drafting Information: The primary authors of this proposed rule are
James A. Loach, Superintendent, Great Lakes System Support Office,
Midwest Field Area Office; Brian R. Adams, Chief Ranger, St. Croix
National Scenic Riverway; and Dennis Burnett, Washington Office of
Ranger Activities, National Park Service.
Paperwork Reduction Act
This proposed rule does not contain collections of information
requiring approval by the Office of Management and Budget under the
Paperwork Reduction Act of 1995.
Compliance With Other Laws
This rule was not subject to Office of Management and Budget review
under Executive Order 12866. The Department of the Interior has
determined that this document will not have a significant economic
effect on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.). To the contrary, this
rulemaking will lessen the possible economic impacts to businesses and
industry should exotics like the zebra mussel become established in NPS
waterways.
In fact, the NPS and other entities will incur substantially
increased costs over time as a result of monitoring, mitigation,
remediation and control activities if these rules are not implemented.
These rules seek to prevent a growing problem by moving away from a
reliance on both short and longer term, costly, and often
environmentally unsound, control methods. Prevention appears to be the
only cost effective approach. There is also the prospect that these
regulations may have a positive secondary effect on local businesses
and small entities providing cleaning and decontamination services to
the public.
The NPS has determined that this rulemaking will not have a
significant effect on the quality of the human environment, health and
safety because it is not expected to:
(a) Increase public use to the extent of compromising the nature
and character of the area or causing physical damage to it;
(b) Introduce non-compatible uses that may compromise the nature
and characteristic of the area, or cause physical damage to it;
(c) Conflict with adjacent ownerships or land uses; or
(d) Cause a nuisance to adjacent land owners or occupants.
Based on this determination, the regulation is categorically
excluded from the procedural requirements of the National Environmental
Policy Act (NEPA) by Departmental guidelines in 516 DM 6 (49 FR 21438).
As such, neither an Environmental Assessment (EA) nor an Environmental
Impact Statement (EIS) has been prepared.
List of Subjects in 36 CFR Part 3
National parks, Reporting and recordkeeping requirements.
In consideration of the foregoing, it is proposed to amend 36 CFR
Chapter I as follows:
PART 3--BOATING AND WATER USE ACTIVITIES
1. The authority citation for Part 3 continues to read as follows:
Authority: 16 U.S.C. 1, 1a-2(h), 3.
2. Section 3.6 is amended by adding paragraphs (m) through (o) to
read as follows:
Sec. 3.6 Prohibited operations.
* * * * *
(m) Entering by vessel, launching a vessel, operating a vessel, or
knowingly allowing another person to enter, launch or operate a vessel,
or attempting to do any of these activities, in NPS waters, when that
vessel or the trailer or the
[[Page 32385]]
carrier of that vessel has been in water contaminated or infested with
injurious non-indigenous aquatic nuisance species, except as provided
in paragraghs (m)(1) and (m)(2).
(1) Vessels, trailers or other carriers of vessels entering NPS
waters from contaminated waters will be cleaned using the technique
specific to the aquatic nuisance species.
(2) The superintendent may allow for limited or restricted access
to park waters under a permit system in accordance with the criteria
and procedures of Sec. 3.3 of this chapter.
(i) Violating a term or condition of a permit issued in accordance
with Sec. 3.3 is prohibited.
(ii) Violating a term or condition of a permit issued pursuant to
Sec. 3.3 of this chapter may also result in the suspension or
revocation of the permit by the superintendent.
(3) For this section, an injurious non-indigenous aquatic nuisance
species means a species that threatens the diversity or abundance of
native species or the stability of an aquatic ecosystem, or that
threatens the commercial, agricultural, aquacultural or recreational
development dependent on such an ecosystem, and includes only those
organisms that pose a substantial risk to native species and the
development and infrastructure dependent upon such aquatic resources.
Species include those listed by Federal, State or local agencies as
injurious non-indigenous aquatic nuisance species.
(4) For this section, contaminated or infested waters means any
waters supporting viable or reproducing populations of injurious non-
indigenous aquatic nuance species as identified by any Federal, State,
or local agency.
(5) For paragraph (m) of this section, vessel means every type or
description of craft, including seaplanes on the water, used or capable
of being used as a means of transportation on water, including a
buoyant devise permitting or capable of free flotation.
(n) Transporting in any way, an injurious non-indigenous aquatic
nuisance species on park waters or roads.
(o) Placing or dumping into park waters, or attempting to place or
dump, bait containers, live wells or other water-holding devices that
are or were filled with waters holding or contaminated by injurious
non-indigenous aquatic nuisance species.
3. Section 3.23 is amended by adding paragraph (c) to read as
follows:
Sec. 3.23 SCUBA and snorkeling.
* * * * *
(c) Using a wet suit or associated water use and diving equipment
used in waters infested with injurious non-indigenous aquatic nuisance
species prior to decontamination by a process appropriate to the
nuisance species.
Dated: March 15, 1996.
George T. Frampton, Jr.,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 96-15973 Filed 6-21-96; 8:45 am]
BILLING CODE 4310-70-P
Complete official Federal Register PDF
FR Doc. 96-15955 Airworthiness Directives; Gulfstream Model G-1159 (G-II), G-1159A (G-III), and G-1159B (G-IIB) Series Airplanes
[Federal Register Volume 61, Number 122 (Monday, June 24, 1996)]
[Proposed Rules]
[Pages 32369-32371]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15955]
========================================================================
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. 122 / Monday, June 24, 1996 /
Proposed Rules
[[Page 32369]]
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. 95-NM-202-AD]
RIN 2120-AA64
Airworthiness Directives; Gulfstream Model G-1159 (G-II), G-1159A
(G-III), and G-1159B (G-IIB) Series Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Notice of proposed rulemaking (NPRM).
-----------------------------------------------------------------------
SUMMARY: This document proposes the adoption of a new airworthiness
directive (AD) that is applicable to all Gulfstream Model G-II, G-III,
and G-IIB series airplanes. This proposal would require a one-time
inspection to detect corrosion of the material layers of the lower aft
fuselage skin in Fuselage Station (FS) 580 bulkhead assembly, and
repair, if necessary. The proposal also would require modification of
the aft fuselage area and various follow-on actions. This proposal is
prompted by reports of varying levels of corrosion in the structure at
FS 580. The actions specified by the proposed AD are intended to
prevent the retention of moisture in the fuselage structure, and
subsequent corrosion in FS 580 bulkhead assembly, which could result in
reduced structural capability of the skin joint and resultant
depressurization of the airplane.
DATES: Comments must be received by August 2, 1996.
ADDRESSES: Submit comments in triplicate to the Federal Aviation
Administration (FAA), Transport Airplane Directorate, ANM-103,
Attention: Rules Docket No. 95-NM-202-AD, 1601 Lind Avenue, SW.,
Renton, Washington 98055-4056. Comments may be inspected at this
location between 9:00 a.m. and 3:00 p.m., Monday through Friday, except
Federal holidays.
The service information referenced in the proposed rule may be
obtained from Gulfstream Aerospace Corporation, P.O. Box 2206, M/S D-
10, Savannah, Georgia 31402-2206. This information may be examined at
the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton,
Washington.
FOR FURTHER INFORMATION CONTACT: Steve Flanagan, Aerospace Engineer,
Airframe Branch, ACE-117A, FAA, Atlanta Aircraft Certification Office,
Small Airplane Directorate, Campus Building, 1701 Columbia Avenue,
Suite 2-160, College Park, Georgia; telephone (404) 305-7363; fax (404)
305-7348.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested persons are invited to participate in the making of the
proposed rule by submitting such written data, views, or arguments as
they may desire. Communications shall identify the Rules Docket number
and be submitted in triplicate to the address specified above. All
communications received on or before the closing date for comments,
specified above, will be considered before taking action on the
proposed rule. The proposals contained in this notice may be changed in
light of the comments received.
Comments are specifically invited on the overall regulatory,
economic, environmental, and energy aspects of the proposed rule. All
comments submitted will be available, both before and after the closing
date for comments, in the Rules Docket for examination by interested
persons. A report summarizing each FAA-public contact concerned with
the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this notice must submit a self-addressed,
stamped postcard on which the following statement is made: ``Comments
to Docket Number 95-NM-202-AD.'' The postcard will be date stamped and
returned to the commenter.
Availability of NPRMs
Any person may obtain a copy of this NPRM by submitting a request
to the FAA, Transport Airplane Directorate, ANM-103, Attention: Rules
Docket No. 95-NM-202-AD, 1601 Lind Avenue, SW., Renton, Washington
98055-4056.
Discussion
The FAA has received reports of varying levels of pitting and
exfoliation corrosion found in the material layers of the lower aft
fuselage skin of Fuselage Station (FS) 580 on Gulfstream Model G-II
series airplanes. This corrosion was detected by operators while
performing visual inspections of the bulkhead area during routine
maintenance checks. FS 580 is the location where the aft pressure dome
ties into the fuselage. This FS consists of ``multiple stackup
material,'' such as: a splice strap, fail-safe strap, skin, frame,
stringers, longeron, and the pressure dome. Corrosion in this area is
apparently caused by the accumulation of moisture, due to condensation
in the unpressurized aft fuselage. This condition, if not corrected,
could result in reduced structural capability of the skin joint and
resultant depressurization of the airplane.
Since the aft pressure bulkhead area on the Model G-II series
airplanes is similar to that on Model G-III and Model and G-IIB series
airplanes, all of these models may be subject to this same unsafe
condition.
Explanation of Relevant Service Information
The FAA has reviewed and approved Gulfstream Customer Bulletin No.
411 (for Model G-II and G-IIB series airplanes) and No. 125 (for Model
G-III series airplanes), both dated January 28, 1994. These customer
bulletins describe procedures for a one-time visual inspection or an
inspection using backscattered radiation detection technique (ComScan)
to detect corrosion in the FS 580 bulkhead assembly.
In addition, the FAA has reviewed and approved Gulfstream Aircraft
Service Change No. 463 (for Model G-II and GIIB series airplanes) and
No. 267 (for Model G-III series airplanes), both dated July 21, 1995.
These aircraft service changes describe procedures to:
1. add pressure sealing drain holes in the aft fuselage area, which
will provide drain paths for condensed water that has accumulated;
2. remove aluminum-backed foam from the bays below the floor;
3. modify the fuselage structure;
4. modify the intercoastals;
5. drill drain holes in the area of Longeron #24L and Stringer
#23L, and Longeron #24R and Stringer #23R; and
[[Page 32370]]
6. treat the structural surfaces with corrosion inhibitors.
Explanation of Requirements of Proposed Rule
Since an unsafe condition has been identified that is likely to
exist or develop on other products of this same type design, the
proposed AD would require a one-time inspection to detect corrosion of
FS 580, and repair, if necessary. This inspection could be accomplished
using either detailed visual inspection techniques or ComScan
techniques.
This proposed AD also would require that operators submit a report
to the FAA of the findings of this inspection. The information obtained
from these reports will enable the FAA to determine how widespread the
problem is in the fleet and if additional action is warranted.
In addition, the proposed AD would require:
1. adding pressure sealing drain holes in the aft fuselage area;
2. removing aluminum-backed foam;
3. modifying the fuselage structure;
4. modify the intercostals;
5. drill drain holes in the area of Longeron #24L and Stringer
#23L, and Longeron #24R and Stringer #23R; and
6. treat the structural surfaces with corrosion inhibitors.
Repair of corrosion would be required to be accomplished in
accordance with a method approved by the FAA. Other actions would be
required to be accomplished in accordance with the Gulfstream customer
bulletins and aircraft service changes described previously.
This is considered to be interim action until final action is
identified, at which time the FAA may consider further rulemaking.
Differences Between the Proposed Rule and Relevant Service
Information
Operators should note that, in the relevant service documents, the
manufacturer recommends that the one-time inspection be accomplished
within 18 months for Model G-II and G-IIB series airplanes, and within
36 months for Model G-III series airplanes. In developing an
appropriate compliance time for this proposed rule, the FAA took into
consideration not only those recommended compliance times, but the
safety implications, normal maintenance schedules for timely
accomplishment of the inspection, and the number of days usually
required for the rulemaking process. In consideration of all of these
factors, the FAA finds that the compliance times for the one-time
inspection as proposed in this action (6 months for Model G-11 and G-
IIB series airplanes, and 12 months for Model G-III series airplanes)
will fall approximately at the same time of compliance as recommended
by the manufacturer.
Cost Impact
There are approximately 425 Gulfstream Model G-II, G-IIB, and G-III
series airplanes of the affected design in the worldwide fleet. The FAA
estimates that 345 airplanes of U.S. registry would be affected by this
proposed AD.
To accomplish the one-time inspection using detailed visual
inspection techniques (which requires some disassembly) would take
approximately 1,500 work hours per airplane. To accomplish the one-time
visual inspection using ComScan techniques would take approximately 16
work hours per airplane. The average labor rate is $60 per work hour.
Based on these figures, the cost impact of the proposed one-time
inspection on U.S. operators is estimated to be between $960 and
$90,000 per airplane, depending upon the type of inspection performed.
To accomplish the proposed modification would take approximately 80
work hours per airplane, at an average labor rate of $60 per work hour.
Based on these figures, the cost impact of the proposed modification on
U.S. operators is estimated to $1,656,000, or $4,800 per airplane.
The cost impact figures discussed above are based on assumptions
that no operator has yet accomplished any of the proposed requirements
of this AD action, and that no operator would accomplish those actions
in the future if this AD were not adopted.
Regulatory Impact
The regulations proposed herein would not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this
proposal would not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this proposed
regulation (1) is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under the DOT
Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
and (3) if promulgated, will not have a significant economic impact,
positive or negative, on a substantial number of small entities under
the criteria of the Regulatory Flexibility Act. A copy of the draft
regulatory evaluation prepared for this action is contained in the
Rules Docket. A copy of it may be obtained by contacting the Rules
Docket at the location provided under the caption ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Safety.
The Proposed Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration proposes to amend
part 39 of the Federal Aviation Regulations (14 CFR part 39) as
follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding the following new
airworthiness directive:
Gulfstream: Docket 95-NM-202-AD.
Applicability: All Model G-1159 (G-II), G-1159A (G-III), and G-
1159B (G-IIB) series airplanes; certificated in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
otherwise modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (e) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
Compliance: Required as indicated, unless accomplished
previously.
To prevent reduced structural capability of the skin joint and
resultant depressurization of the airplane, as a result of the problems
associated with corrosion of the structure surfaces aft of fuselage
station (FS) 580, accomplish the following:
(a) For Model G-II and G-IIB series airplanes: Within 6 months
after the effective date of this AD, perform a detailed visual
inspection, or perform an inspection using a backscattered radiation
detection technique (ComScan), to detect corrosion of the FS
[[Page 32371]]
580 bulkhead, in accordance with Gulfstream Customer Bulletin No. 411,
dated January 28, 1994. If any corrosion is found, prior to further
flight, repair in accordance with a method approved by the Manager,
Atlanta Aircraft Certification Office (ACO), FAA, Small Airplane
Directorate.
(b) For Model G-III series airplanes: Within 12 months after the
effective date of this AD, perform a one-time detailed visual
inspection, or perform an inspection using a backscattered radiation
detection technique (ComScan), to detect corrosion of the FS 580
bulkhead, in accordance with Gulfstream Customer Bulletin No. 125,
dated January 28, 1994. If any corrosion is found, prior to further
flight, repair in accordance with a method approved by the Manager,
Atlanta ACO.
(c) For all airplanes: Within 10 days after accomplishing the
inspection required by paragraph (a) or (b) of this AD, submit a report
of the inspection results (both positive and negative findings) to the
FAA, Manager, Atlanta Aircraft Certification Office, Campus Building,
1701 Columbia Avenue, Suite 2-160, College Park, Georgia 30338-2748;
fax (404) 305-7333. The report must include the information specified
in paragraphs (d)(1), (d)(2), (d)(3), and (d)(4) of this AD.
Information collection requirements contained in this regulation have
been approved by the Office of Management and Budget (OMB) under the
provisions of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et
seq.) and have been assigned OMB Control Number 2120-0056.
(1) Airplane model, serial number, date of manufacture, and total
number of hours time-in-service.
(2) Date of inspection, and method of inspection.
(3) Summary of inspection results, including extent and location of
corrosion.
(4) List of parts replaced, if applicable.
(d) For all airplanes: Within 12 months after the effective date of
this AD, add pressure sealing drain holes in the aft fuselage area;
remove all the aluminum-backed foam insulation from the skins in the
bays between Longerons #24 left and #24 right from FS 539 through FS
580 inclusive; modify the fuselage structure; modify the intercostals;
drill drain holes in the area of Longeron #24L and Stringer #23L, and
Longeron #24R and Stringer #23R; and treat the structural surfaces with
corrosion inhibitor; in accordance with either paragraph (c)(1) or
(c)(2) of this AD, as applicable.
(1) For Model G-II and G-IIB series airplanes: Perform the
actions in accordance with Gulfstream Aircraft Service Change No.
463, dated July 21, 1995.
(2) For Model G-III series airplanes: Perform the actions in
accordance with Gulfstream Aircraft Service Change No. 267, dated
July 21, 1995.
(e) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Atlanta ACO. Operators shall submit
their requests through an appropriate FAA Principal Maintenance
Inspector, who may add comments and then send it to the Manager,
Atlanta ACO.
Note 2: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Atlanta ACO.
(f) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
Issued in Renton, Washington, on June 17, 1996.
Darrell M. Pederson,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-15955 Filed 6-21-96; 8:45 am]
BILLING CODE 4910-13-U
Complete official Federal Register PDF
FR Doc. 96-15936 Reef Fish Fishery of the Gulf of Mexico; Amendment 13
[Federal Register Volume 61, Number 122 (Monday, June 24, 1996)]
[Proposed Rules]
[Pages 32422-32424]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15936]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 641
[Docket No. 960613174-6174-01; I.D. 050996C]
RIN 0648-AI71
Reef Fish Fishery of the Gulf of Mexico; Amendment 13
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: NMFS issues this proposed rule to implement Amendment 13 to
this Fishery Management Plan for the Reef Fish Resources of the Gulf of
Mexico (FMP). Amendment 13 would extend the red snapper vessel permit
endorsement and trip limit system until implementation of: The
individual transferable quota (ITQ) system approved under Amendment 8
to the FMP, or an alternate program to restrict access to the
commercial red snapper fishery, such as a limited license system. If
neither option is possible, the trip limit and endorsement provisions
would terminate on December 31, 1997. The intent effects of this rule
are to stabilize the fishery and to provide for controlled harvest
until a more comprehensive controlled access plan can be implemented.
ADDRESSES: Comments on the proposed rule must be sent to Robert Sadler,
Southeast Regional Office, NMFS, 9721 Executive Center Drive N., St.
Petersburg, FL 33702.
Requests for copies of Amendment 13, which includes an
environmental assessment and a regulatory impact review (RIR), should
be sent to the Gulf of Mexico Fishery Management Council (Council),
5401 West Kennedy Boulevard, Suite 331, Tampa, FL 33609. Related RIRs
for Amendments 6 and 9 may also be obtained from the Council.
DATES: Written comments must be received on or before August 8, 1996.
FOR FURTHER INFORMATION CONTACT: Robert Sadler, 813-570-5305.
[[Page 32423]]
SUPPLEMENTARY INFORMATION: The reef fish fishery of the Gulf of Mexico
is managed under the FMP. The FMP was prepared by the Council and is
implemented through regulations at 50 CFR part 641 under the authority
of the Magnuson Fishery Conservation and Management Act (Magnuson Act).
Background
An ATQ system was proposed by the Council in Amendment 8 to the FMP
to address excessive effort capacity in the commercial red snapper
fishery in the Gulf of Mexico. Amendment 8 was approved by NMFS, and
the final rule to implement it was published November 29, 1995 (60 FR
61200). Starting April 1, 1996, participation in the commercial fishery
for red snapper was to be controlled by ITQs based on percentage shares
of the commercial quota. However, because of the furlough of NMFS
personnel and budget limitations under the continuing resolutions that
provide operating funds for Commerce from December 1995 through March
1996, NMFS was unable to issue ITQ shares and coupons and implement the
ITQ system on April 1. Accordingly, NMFS implemented an emergency
interim rule on February 29, 1996 (61 FR 7751), to suspend
implementation of the ITQ system and to continue the red snapper
endorsement and trip limit provisions, then in effect under another
emergency interim rule (61 FR 17, January 2, 1996), as long as the 1996
commercial fishery was open. The 1996 commercial red snapper season
opened on February 1, 1996, the annual commercial quota was reached on
April 4, 1996, and the commercial red snapper fishery was closed on
April 5, 1996.
Amendment 13
Amendment 13 was developed by the Council because of concerns that
implementation of the ITQ system would be further delayed by
Congressional action. In fact, section 210 of the Department of
Commerce and Related Agencies Appropriations Act for 1996 (Public Law
104-134) prohibits NMFS from using funds appropriated under that act,
or any other act, to implement regulations for any ITQ system that was
approved by the Secretary of Commerce (Secretary) after January 4,
1995, until offsetting fees to pay for the cost of administering such
regulations are expressly authorized under the Magnuson Act. The
commercial red snapper ITQ system is affected by section 210, because
NMFS, for the Secretary, approved Amendment 8 on October 13, 1995.
The problems in the fishery that led to implementation of the red
snapper endorsement system, and approval of the ITQ system under
Amendment 8, are expected to continue until a comprehensive program to
control access to red snapper can be implemented. Until then,
controlled harvest rates (i.e., the trip limit and endorsement system)
are needed to stabilize the fishery. The Council, after review of
various alternatives, determined that continuation of the red snapper
endorsement system and its associated trip limits is appropriate to
allow an open fishery until a permanent controlled access system can be
implemented. Permit endorsements for red snapper would continue to be
transferable only to other vessels owned by the same entity, or in the
event of death or disability of the permit holder.
Because of the legislative prohibition on expenditure of funds to
implement the red snapper ITQ system, NMFS proposes to suspend
indefinitely implementation of the ITQ system concomitant with
implementation of Amendment 13. If the commercial red snapper ITQ
system cannot be implemented by the end of 1997, the Council intends to
review the red snapper management regime before the regulations
implementing Amendment 13 expire and to initiate appropriate action for
the 1998 season.
Availability of Amendment 13
Additional background and rationale for the measures discussed
above are contained in Amendment 13, the availability of which was
announced in the Federal Register (61 FR 24267, May 14, 1996).
Classification
Section 304(a)(1)(D) of the Magnuson Act requires NMFS to publish
regulations proposed by a Council within 15 days of receipt of an
amendment and regulations. At this time NMFS has not determined that
Amendment 13 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
purposes of E.O. 12866.
The Assistant General Counsel for Legislation and Regulation (AGC)
has certified to the Chief Counsel for Advocacy of the Small Business
Administration (SBA) that Amendment 13 and its implementing rule will
not have significant impact on a substantial number of small entities.
Amendment 13 would continue in effect the vessel permit endorsement and
trip limit provisions that were first approved and implemented under
emergency action(57 FR 66237, December 30, 1992), and continued under
Amendment 6 (58 FR 33025, June 15, 1993), Amendment 9 (59 FR 39301,
August 2, 1994), and emergency action (61 FR 7751, February 29, 1996)
through May 29, 1996. Act certified that the rules implementing
Amendments 6 and 9 would not have a significant economic impact on a
substantial number of small entities. For details about those
certifications, refer to the Federal Register publications cited above.
Amendment 13 would continue the permit endorsement provisions of
the status quo management regime which were certified twice previously
under 5 U.S.C. Sec. 605(b) by Commerce to the Chief Counsel for
Advocacy, SBA, as not having a significant economic effect on a
substantial number of small entities. For these reasons, an initial
regulatory flexibility analysis was not prepared.
List of Subjects in 50 CFR Part 641
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: June 18, 1996.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 641 is
proposed to be amended as follows:
PART 641--REEF FISH FISHERY OF THE GULF OF MEXICO
1. The authority citation for part 641 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
Sec. 641.4 [Amended]
2. On Sec. 641.4, paragraph (o) is suspended indefinitely.
3. In Sec. 641.7, paragraph (ff) through (kk) are suspended and
paragraphs (nn), through (pp) are added to read as follows:
Sec. 641.7 Prohibitions.
* * * * *
(nn) Exceed the vessel trip or landing limits for red snapper, as
specified in Sec. 641.31 (a) and (b).
(oo) Transfer a red snapper at sea, as specified in Sec. 641.31
(c).
(pp) Purchase, barter, trade, or sell, or attemp to purchase,
barter, trade, or sell, a red snapper possessed or landed in excess of
a trip or landing limit, as specified in Sec. 641.31 (d).
[[Page 32424]]
Sec. 641.10 [Amended]
4. Section 641.10 is suspended indefinitely.
5. Sections 641.31 through 641.33 are added to read as follows:
Sec. 641.31 Red snapper trip limits.
The provisions of this section are effective through December 31,
1997.
(a) Except as provided in paragraph (b) of this section, a vessel
that has on board a valid commercial reef fish permit may not possess
on any trip or land in any day red snapper in excess of 200 lb (91 kg),
whole or eviscerated.
(b) a vessel that on board a valid commercial reef fish permit and
a valid red snapper endorsement may not possess on any trip or land in
any day red snapper in excess of 2,000 lb (907 kg), whole or
eviscerated.
(c) A red snapper may not be transferred at sea from one vessel to
another.
(d) No person may purchase, barter, trade, or sell, or attempt to
purchase, barter, trade, or sell, a red snapper possessed or landed in
excess of the trip or landing limits specified in paragraphs (a) and
(b) of this section.
Sec. 641.32 Red snapper endorsement.
The provisions of this section are effective through December 31,
1997.
(a) As a prerequisite for exemption from the trip limit for red
snapper specified in Sec. 641.31(a), a vessel for which a commercial
reef fish permit has been issued under Sec. 641.4 must have a red
snapper endorsement on such permit, and such permit and endorsement
must be on board the vessel.
(b) A red snapper endorsement is invalid upon sale of the vessel;
however, an owner of a vessel with a commercial reef fish permit may
transfer the red snapper endorsement to another vessel with a
commercial reef fish permit owned by the same entity by returning the
existing endorsement with an application for an endorsement for the
replacement vessel.
(c) The provisions of paragraph (b) of this section
notwithstanding--
(1) In the event that a vessel with a red snapper endorsement has a
change of ownership that is directly related to the disability or death
of the owner, the Regional Director may issue a red snapper
endorsement, temporarily or permanently, with the commercial reef fish
permit that is issued for the vessel under the new owner. Such new
owner will be the person specified by the owner or his/her legal
guardian, in the case of a disabled owner, or by the will or executor/
administrator of the estate, in the case of a deceased owner. (Change
of ownership of a vessel with a commercial reef fish permit upon
disability or death of an owner is considered a purchase of a permitted
vessel and Sec. 641.4 (m)(3) applies regarding a commercial reef fish
permit for the vessel under the new owner.)
(2) In the event of the disability or death of an operator whose
presence aboard a vessel is a condition for the validity of a red
snapper endorsement, the Regional Director may revise and reissue an
endorsement, temporarily or permanently, to the permitted vessel. Such
revised endorsement will contain the name of a substitute operator
specified by the operator or his/her legal guardian, in the case of a
disabled operator, or by the will or executor/administrator of the
estate, in the case of a deceased operator. As was the case with the
replaced endorsement, the presence of the substitute operator aboard
and in charge of the vessel is a condition for the validity of the
revised endorsement. Such revised endorsement will be reissued only
with the concurrence of the vessel owner.
Sec. 641.33 Condition of a permit.
The provisions of this section are effective through December 31,
1997. As a condition of a commercial reef fish permit issued under
Sec. 641.4, without regard to where red snapper are harvested or
possessed, a vessel with such permit--
(a) May not exceed the appropriate vessel trip or landing limit for
red snapper, as specified in Sec. 641.31 (a) and (b).
(b) May not transfer a red snapper at sea, as specified in
Sec. 641.31(c).
[FR Doc. 96-15936 Filed 6-18-96; 4:46 pm]
BILLING CODE 3510-22-M
Complete official Federal Register PDF
FR Doc. 96-15906 Approval and Promulgation of Implementation Plans; California Mammoth Lakes Nonattainment Area; PMINF10
[Federal Register Volume 61, Number 122 (Monday, June 24, 1996)]
[Proposed Rules]
[Pages 32385-32386]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15906]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CA 19-2-725-b; FRL-5511-5]
Approval and Promulgation of Implementation Plans; California--
Mammoth Lakes Nonattainment Area; PM10
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of Proposed Rulemaking.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing to approve the State Implementation Plan
(SIP) submitted by the State of California for the purpose of bringing
about attainment in the Mammoth Lakes Planning Area (MLPA) of the
national ambient air quality standards (NAAQS) for particulate matter
with an
[[Page 32386]]
aerodynamic diameter less than or equal to a nominal 10 micrometers
(PM10). The ``moderate'' area SIP was submitted by the State to
satisfy certain Federal requirements in the Clean Air Act (CAA) for an
approvable nonattainment area PM10 plan for the MLPA.
The intended effect of proposing approval of this plan is to
regulate emissions of PM10 in accordance with the requirements of
the CAA, as amended in 1990.
DATES: Comments on this proposed rule must be received in writing by
July 24, 1996.
ADDRESSES: Comments should be submitted to Stephanie Valentine (A-2-2)
at U. S. Environmental Protection Agency, Region 9, Air and Toxics
Division, 75 Hawthorne Street, San Francisco, CA 94105.
Copies of the State's submittal and other information are contained
in the docket for this rulemaking. The docket is available for
inspection during normal business hours at the following locations:
U.S. Environmental Protection Agency, Region 9, 75 Hawthorne Street,
San Francisco, CA 94105.
California Air Resources Board, 2020 L Street, P.O. Box 2815,
Sacramento, CA 95814.
Great Basin Unified Air Pollution Control District, 157 Short Street,
Suite 6, Bishop, CA 93514.
FOR FURTHER INFORMATION CONTACT: Stephanie G. Valentine (A-2-2), U.S.
Environmental Protection Agency, Region 9, Air and Toxics Division, 75
Hawthorne Street, San Francisco, CA 94105, (415) 744-1178.
SUPPLEMENTARY INFORMATION: This document concerns the PM10 Plan
for the Mammoth Lakes Planning Area, submitted to EPA on September 11,
1991 by the California Air Resources Board. For further information,
please see the information provided in the Direct Final action which is
located in the Rules Section of this Federal Register.
Authority: 42 U.S.C. 7401-7671q.
Dated: March 31, 1996.
Felicia Marcus,
Regional Administrator.
[FR Doc. 96-15906 Filed 6-21-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-15901 Federal Acquisition Regulation; Preaward Debriefings
[Federal Register Volume 61, Number 122 (Monday, June 24, 1996)]
[Proposed Rules]
[Pages 32580-32582]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15901]
[[Page 32579]]
_______________________________________________________________________
Part IV
Department of Defense
General Services Administration
National Aeronautics and Space Administration
_______________________________________________________________________
48 CFR Part 5, et al.
Federal Acquisition Regulation; Preaward Debriefings; Proposed Rule
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 /
Proposed Rules
[[Page 32580]]
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 5, 13, 14, 15, 19, 25, 33, and 36
[FAR Case 96-304]
RIN 9000-AH13
Federal Acquisition Regulation; Preaward Debriefings
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council are proposing to amend the Federal
Acquisition Regulation (FAR) to implement Section 4104 of the Federal
Acquisition Reform Act of 1996. The proposed rule requires that, prior
to contract award, contracting officers provide a debriefing to any
interested offeror on the reasons for that offeror's exclusion from the
competitive range in a competitive negotiation. This regulatory action
was not subject to Office of Management and Budget review under
Executive Order 12866, dated September 30, 1993. This is not a major
rule under 5 U.S.C. 804.
DATES: Comments should be submitted on or before August 23, 1996 to be
considered in the formulation of a final rule.
ADDRESSES: Interested parties should submit written comments to: -
General Services Administration, FAR Secretariat (MVRS), 18th and F
Streets, NW., Room 4037, Washington, DC 20405.
Please cite FAR case 96-304 in all correspondence related to this
case.
FOR FURTHER INFORMATION CONTACT: Mr. Ralph DeStefano at (202) 501-1758
in reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAR case 96-304.
SUPPLEMENTARY INFORMATION:
A. Background
Section 4104 of the Federal Acquisition Reform Act of 1996 (Public
Law 104-106) requires that, prior to contract award, contracting
officers provide a debriefing to any interested offeror on the reasons
for that offeror's exclusion from the competitive range in a
competitive negotiation. The contracting officer may refuse a preaward
debriefing request if it is not in the best interests of the government
to conduct a debriefing at that time. Section 4104 also requires that
the debriefings include the following information: the agency's
evaluation of the significant elements in the offeror's proposal; a
summary of the rationale for the offeror's exclusion; and reasonable
responses to relevant questions posed by the debriefed offeror as to
whether the source selection procedures in the solicitation and
applicable regulations were followed by the agency.
B. Regulatory Flexibility Act
This proposed rule is not expected to have a significant economic
impact on a substantial number of small entities within the meaning of
the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the rule
provides for earlier debriefings to unsuccessful offerors but does not
significantly alter the amount of information provided to unsuccessful
offerors. Therefore, an Initial Regulatory Flexibility Analysis has not
been performed. Comments from small entities concerning the affected
FAR subpart will be considered in accordance with 5 U.S.C. 610 of the
Act. Such comments must be submitted separately and should cite 5
U.S.C. 601, et seq. (FAR case 96-304), in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the proposed
changes to the FAR do not impose recordkeeping or information
collection requirements, or collections of information from offerors,
contractors, or members of the public which require the approval of the
Office of Management and Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Parts 5, 13, 14, 15, 19, 25, 33, and 36-
Government procurement.
Dated: June 18, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, it is proposed that 48 CFR Parts 5, 13, 14, 15, 19, 25,
33 and 36 be amended as set forth below:
1. The authority citation for 48 CFR Parts 5, 13, 14, 15, 19, 25,
33 and 36 continues to read as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
CHAPTER 1--[AMENDED]-
2. In the list below, for each section listed in the left column,
remove the citation listed in the middle column, and insert the
citation in the last column:
------------------------------------------------------------------------
Section Remove Insert
------------------------------------------------------------------------
5.303(b)(2)-................ 15.1002(c)-......... 15.1003(b)-
13.106-1(c)(2)-............. 15.1001(c)(3)-...... 15.1003(b)(2)-
15.412(d)-.................. 15.1002(c)(1)-...... 15.1003(b)(1)-
15.609(c)-.................. 15.1002(b)-......... 15.1003-
19.302(d)(1)-............... 15.1002(b)(2)-...... 15.1003(a)(2)-
19.501(h)(1)-............... 15.1002(b)(2)-...... 15.1003(a)(2)-
19.501(h)(2)-............... 15.1002(b)(2)-...... 15.1003(a)(2)-
25.405(e)-.................. 15.1002-............ 15.1003-
33.104(c)(1)-............... 15.1004-............ 15.1006
33.105(d)(1) (intro text)-.. 15.1004-............ 15.1006
------------------------------------------------------------------------
PART 14--SEALED BIDDING
3. Section 14.503-1(g) is revised in the second sentence to read as
follows:
14.503-1 Step one.
* * * * *
(g) * * * Upon written request, the contracting Officer shall
debrief unsuccessful offerors (see 15.1005 and 15.1006.
* * * * *
PART 15--CONTRACTING BY NEGOTIATION-
4. Section 15.612(f) is revised to read as follows:
[[Page 32581]]
15.612 Formal source selection.
* * * * *
(f) Notices and debriefings. See 15.1003, 15.1004, 15.1005, and
15.1006.-
5. Subpart 15.10 is revised to read as follows:
Subpart 15.10--Preaward, Award, and Postaward Notifications, Protests,
and Mistakes
Sec.
15.1001 Definition.
15.1002 Applicability.
15.1003 Notifications to unsuccessful offerors.
15.1004 Notification to successful offeror.
15.1005 Preaward debriefing of offerors.
15.1006 Postaward debriefing of offerors.
15.1007 Protests against award.
15.1008 Discovery of mistakes.
Subpart 15.10--Preaward, Award, and Postaward Notifications,
Protests, and Mistakes
15.1001 - Definition.
''Day,'' as used in this subpart, means calendar day, except that
the period will run until a day which is not a Saturday, Sunday, or
legal holiday.
15.1002 Applicability.
This subpart applies to the use of competitive proposals, as
described in 6.102(b), and a combination of competitive procedures, as
described in 6.102(c). To the extent practicable, however, the
procedures and intent of this subpart, with reasonable modification,
should be followed for acquisitions described in 6.102(d): broad agency
announcements, small business innovation research contracts, and
architect-engineer contracts. However, they do not apply to multiple
award schedules, as described in 6.102(d)(3).
15.1003 Notifications to unsuccessful offerors.
(a) Preaward notices. (1) Preaward notices of exclusion from
competitive range. The contracting officer shall promptly notify
offerors when their proposals are excluded from the competitive range.
The notice shall state the basis for the determination and that a
proposal revision will not be considered.
(2) Preaward notices for small business set-asides. In a small
business set-aside (see subpart 19.5), upon completion of negotiations
and determinations of responsibility, but prior to award, the
contracting officer shall notify each offeror in writing of the name
and location of the apparent successful offeror. The notice shall also
state that
(i) The Government will not consider subsequent revisions of the
offeror's proposal, and
(ii) No response is required unless a basis exists to challenge the
small business size status of the apparently successful offeror. The
notice is not required when the contracting officer determines in
writing that the urgency of the requirement necessitates award without
delay.
(b) Postaward notices. Within three days after the date of contract
award, the contracting officer shall provide written notification to
each offeror whose proposal was in the competitive range but not
selected for award (Public Law 103-355). --
(1) The notice shall include--
(i) The number of offerors solicited;
(ii) The number of proposals received;-
(iii) The name and address of each offeror receiving an award;
(iv) The items, quantities, and unit prices of each award (if the
number of items or other factors makes listing unit prices
impracticable, only the total contract price need be furnished); and
(v) In general terms, the reasons the offeror's proposal was not
accepted, unless the price information in paragraph (b)(1)(iv) of this
section readily reveals the reason. In no event shall an offeror's cost
breakdown, profit, overhead rates, trade secrets, manufacturing
processes and techniques, or other confidential business information be
disclosed to any other offeror.--
(2) Upon request, the contracting officer shall furnish the
information described in paragraphs (b)(1) (i) through (v) of this
section to unsuccessful offerors in solicitations using simplified
acquisition procedures in part 13.
(3) Upon request, after contract award, the contracting officer
shall provide the information in paragraphs (b)(1) (i) through (v) of
this section to unsuccessful offerors who received a preaward notice of
exclusion from the competitive range.
15.1004 Notification to successful offeror.-
The contracting officer shall award a contract with reasonable
promptness to the successful offeror (selected in accordance with
15.611(d)) by transmitting written notice of the award to that offeror
(but see 15.608(b)). When an award is made to an offeror for less than
all of the items that may be awarded to that offeror and additional
items are being withheld for subsequent award, each notice shall state
that the Government may make subsequent awards on those additional
items within the offer acceptance period.
15.1005 Preaward debriefing of offerors.-
Offerors excluded from the competitive range may request a
debriefing before award (10 U.S.C. 2305(b)(6)(A) and 41 U.S.C. 253b(f)-
(h)). The process for preaward debriefings follows:-
(a) The offeror may request a preaward debriefing by submitting a
written request for debriefing to the contracting officer within three
days after the receipt of notice of exclusion from the competitive
range. If the offeror does not submit a timely request, the offeror
need not be given either a preaward or a postaward debriefing. Offerors
are entitled to no more than one debriefing for each proposal.-
(b) The contracting officer should provide a debriefing to the
offeror as soon as practical. If providing a preaward debriefing is not
in the best interest of the Government at the time it is requested, the
contracting officer may delay the debriefing, but shall provide the
debriefing no later than the time postaward debriefings are provided
under 15.1006. In that event, the contracting officer shall include the
information at 15.1006(d) in the debriefing.-
(c) Debriefings may be done orally, in writing, or by any other
method acceptable to the contracting officer.-
(d) The contracting officer should normally chair any debriefing
session held. Individuals who conducted the evaluations shall provide
support. If the contracting officer is unavailable, another agency
representative may be designated by the contracting officer on a case-
by-case basis, if approved by an individual at a level above the
contracting officer.-
(e) At a minimum, preaward debriefings shall include----
(1) The agency's evaluation of significant elements in the
offeror's proposal;--
(2) A summary of the rationale for excluding the offeror from the
competitive range; and--
(3) Reasonable responses to relevant questions about whether source
selection procedures contained in the solicitation, applicable
regulations, and other applicable authorities were followed in the
process of excluding the offeror from the competitive range.-
(f) Preaward debriefings shall not disclose----
(1) The number of offerors;--
(2) The identify of other offerors;--
(3) The content of other offeror's proposals;--
(4) The ranking of other offerors;--
(5) The evaluation of other offerors; or--
(6) Any of the information prohibited in 15.1006(e).-
[[Page 32582]]
(g) The contracting officer shall include an official summary of
the debriefing in the contract file.
15.1006 Postaward debriefing of offerors.-
(a) An offeror, upon its written request received by the agency
within three days after the date on which that offeror has received
notice of contract award, shall be debriefed and furnished the basis
for the selection decision and contract award. An offeror who failed to
submit a timely request under 15.1005(a) is not entitled to a
debriefing. When practicable, debriefing requests received more than
three days after the offeror receives notice of contract award may be
accommodated. However, accommodating untimely debriefing requests does
not extend the time within which suspension of performance can be
required because this accommodation is not a ``required debriefing'' as
described in FAR part 33. To the maximum extent practicable, the
debriefing should occur within five days after receipt of the written
request.-
(b) Debriefings of successful and unsuccessful offerors may be done
orally, in writing, or by any other method acceptable to the
contracting officer.-
(c) The contracting officer should normally chair any debriefing
session held. Individuals who conducted the evaluation shall provide
support. If the contracting officer is unavailable, another agency
representative may be designated by the contracting officer on a case-
by-case basis, with the approval of an individual a level above the
contracting officer.-
(d) At a minimum, the debriefing information shall include----
(1) The Government's evaluation of the significant weaknesses or
deficiencies in the offeror's proposal, if applicable;--
(2) The overall evaluated cost or price and technical rating, if
applicable, of the successful offeror and the debriefed offeror;--
(3) The overall ranking of all offerors when any ranking was
developed by the agency during the source selection;--
(4) A summary of the rationale for award;--
(5) For acquisitions of commercial end items, the make and model of
the item to be delivered by the successful offeror; and--
(6) Reasonable responses to relevant questions about whether source
selection procedures contained in the solicitation, applicable
regulations, and other applicable authorities were followed.-
(e) The debriefing shall not include point-by-point comparisons of
the debriefed offeror's proposal with those of other offerors.
Moreover, the debriefing shall not reveal any information exempt from
release under the Freedom of Information Act including----
(1) Trade secrets;--
(2) Privileged or confidential manufacturing processes and
techniques;--
(3) Commercial and financial information that is privileged or
confidential, including cost breakdowns, profit, indirect cost rates,
and similar information; and--
(4) The names of individuals providing reference information about
an offeror's past performance.-
(f) The contracting officer shall include an official summary of
the debriefing in the contract file.
15.1007 Protests against award.-
(a) Protests against award in negotiated acquisitions shall be
treated substantially the same as in sealed bidding (see subpart 33.1).
Use of agency protest procedures which incorporate the alternative
dispute resolution provisions of Executive Order 12979 is encouraged
for both preaward and postaward protests.-
(b) If, within one year of contract award, a protest causes the
agency to issue either a new solicitation or a new request for best and
final offers on the protested contract award, the agency shall make
available to prospective offerors or original offerors still within the
competitive range, respectively----
(1) Information provided in any debriefings conducted on the
original award about the successful offeror's proposal; and--
(2) Other nonproprietary information that would have been provided
to the original offerors.
15.1008 Discovery of mistakes.-
For treatment of mistakes in an offeror's proposal that are
discovered before award, see 15.607. Mistakes in a contractor's
proposal that are disclosed after award shall be processed in
accordance with 14.407-4.
PART 36--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS-
6. Section 36.607(b) is revised to read as follows:
36.607 Release of information on firm selection.
* * * * *--
(b) Debriefings of successful and unsuccessful firms will be held
after final selection has taken place and will be conducted, to the
extent practicable, in accordance with 15.1004 and 15.1006 (b) through
(g). Note that 15.1006(d) (2) through (d)(5) does not apply to
architect-engineer contracts.
[FR Doc. 96-15901 Filed 6-21-96; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 96-15899 Endangered and Threatened Wildlife and Plants; Reopening of Comment Period on Proposed Endangered Status for Barton Springs Salamander
[Federal Register Volume 61, Number 122 (Monday, June 24, 1996)]
[Proposed Rules]
[Pages 32413-32415]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15899]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AC22
Endangered and Threatened Wildlife and Plants; Reopening of
Comment Period on Proposed Endangered Status for Barton Springs
Salamander
AGENCY: Fish and Wildlife Service, Interior.
[[Page 32414]]
ACTION: Proposed rule; notice of reopening of comment period.
-----------------------------------------------------------------------
SUMMARY: The Fish and Wildlife Service provides notice that the comment
period on the proposed endangered status for Barton Springs salamander
(Eurycea sosorum) is reopened.
DATES: Comments from all interested parties must be received by July
24, 1996. Although every effort will be made to consider comments
received up to July 24, 1996 the Fish and Wildlife Service may be
required to close the comment period in advance of July 24, 1996 in
order to comply with any orders of the court in Save Our Springs Legal
Defense Fund v. Babbitt, Civil No. MO-95-CA-230 (W.D. Tex.), ongoing
litigation involving this rulemaking.
ADDRESSES: Comments and materials concerning this proposal should be
sent to the Field Supervisor, U.S. Fish and Wildlife Service, 10711
Burnet Road, Suite 200, Austin, Texas 78758. Comments and materials
received will be available for public inspection, by appointment,
during normal business hours at the above address.
FOR FURTHER INFORMATION CONTACT: Field Supervisor (see ADDRESSES
section) (512/490-0057).
SUPPLEMENTARY INFORMATION: A proposed rule to list the Barton Springs
salamander as endangered was published on February 17, 1994 (59 FR
7968). The primary threat to this species is contamination of waters in
the portion of the Edwards Aquifer that feeds the springs, due to
catastrophic events (such as hazardous materials spills) and chronic
degradation resulting from urban activities. Also of concern are
reduced groundwater supplies due to increased groundwater withdrawal
and pool maintenance operations where the salamander occurs. This
proposal, if made final, will implement Federal protection provided by
the Act for the Barton Springs salamander.
The comment period on this proposed rule originally closed April
18, 1994. It was reopened on May 26, 1994, and again on March 10, 1995.
The last comment period closed May 17, 1995. On April 10, 1995, Public
Law 104-06 imposed a moratorium preventing addition of any species to
the Threatened and Endangered Species List. Through a series of
moratoria, funding restrictions, and continuing resolutions that
prohibition remained in effect until April 26, 1996. On that date, the
Omnibus Appropriations Act, which provided $4,000,000 to the Service to
fund listing activities for the remainder of fiscal year 1996, was
enacted (Pub. L. No. 104-134, 110 Stat. 1321, (1996)). Because the
Service expended $233,000 of this amount during the first six months of
1996 under the rates of operation provided by the various continuing
resolutions, $3,767,000 remains for the balance of the fiscal year (61
FR 24722, 24723; May 16, 1996). The Omnibus Appropriations Act
contained a moratorium on certain listing activities but provided that
the President could waive the moratorium. On April 26, 1996, President
Clinton suspended the provision limiting implementation of Section 4 of
the Act (61 FR 24667; May 16, 1996).
On May 16, 1996, the Service published guidance which set
priorities for the listing program in order to ensure that the scarce
resources available through the end of the fiscal year would provide
the greatest conservation benefit possible (61 FR 24722; Final Listing
Priority Guidance. This guidance identified emergency listings as Tier
1 activities, in other words, the highest priority activity the Service
will undertake during the remainder of the fiscal year. Completing
final determinations for existing proposals, such as the Barton Springs
salamander, are Tier 2 activities, which will be undertaken to the
extent resources are available. Which final determinations will be
completed depends on a number of factors including magnitude and
imminence of threats to the species. Id. at 24727.
Region 2 of the Service, which includes the area inhabited by the
Barton Springs salamander, conducted a prioritization review in
accordance with the Notice of Final Listing Priority Guidance. This
process considered all pending actions to determine whether affected
species faced an emergency situation as defined by Section 4(b)(7) of
the Act, and the Service's implementing regulations. The Barton Springs
salamander has been recommended by Region 2 as its number one priority
for final determination. In determining which species to focus its
listing resources on, Region 2 evaluated the threats to all species
that have been proposed for listing. Region 2 determined that while the
Barton Springs salamander is its number one listing priority, the
threats to the species are not severe enough to warrant emergency
status. However, the Service continues to monitor the status of the
Barton Springs salamander and other Edwards Aquifer species in case
emergency listing becomes necessary. Having given the Barton Springs
salamander top priority, Region 2 has begun, as funds are now again
available, work on making a final decision on this proposed listing.
The Service's Final Listing Priority Guidance notes that the
inaction forced upon the Service by the moratorium and funding
limitations may result in a need to reopen comment periods due to
unresolved questions or the potential for the existence of new
information. (61 FR 24727). (See also 61 FR 9651, 9653) (March 11,
1996; interim guidance). Pursuant to this guidance, it is necessary to
reopen the comment period to ensure the Service has the best scientific
and commercial information currently available to make a final listing
determination regarding the Barton Springs salamander.
The last comment period on the proposal to list the Barton Springs
salamander closed on May 17, 1995, over one year ago. The Service is
aware of new information relevant to listing this species dated after
the close of the comment period. Specifically, proposed regulatory
protection under State authorities including water quality protection
zones, nonpoint source pollution programs, monitoring, and Edwards
Aquifer-specific actions have been brought to the Service's attention.
Since the close of the comment period, the Service has learned that the
State of Texas has proposed and accepted comments on new regulations
governing development in the Barton Springs watershed that would
require the state to review and approve water quality plans submitted
for new developments. The Service has also learned that the Texas
Natural Resource Conservation Commission, the Texas Parks and Wildlife
Department, and the Texas Department of Transportation have entered
into a Memorandum of Understanding concerning water quality protections
during highway construction. These efforts are aimed at protecting
water quality threats, to which were identified as one of the primary
factors threatening the existence of the Barton Springs salamander in
the proposal. (59 FR 7968, 7972). Information on these regulatory
initiatives does not currently exist in the administrative record. To
evaluate effectively whether the existing regulatory structure may
adequately protect the species, the Service must obtain further
information on these developments. The Act requires the Service to base
listing decisions on the ``best scientific and commercial information
available,'' 16 U.S.C. 1533(b)(1)(A), and to consider the ``inadequacy
of existing regulatory mechanisms'' as a factor upon which to base
listing decisions, id. 1533(a)(1)(D). Given these facts, the Service
believes it has an obligation to reopen the public
[[Page 32415]]
comment period on this proposal, while keeping careful watch on the
species' status.
In a letter dated June 3, 1996, Valarie Bristol, Travis County
Commissioner for the County encompassing the Barton Springs segment of
the Edwards Aquifer and Barton Springs itself, requested that the
comment period be reopened in order to accept information regarding the
Balcones Canyonlands Preserve, the Loop 1/Highway 290 Task Force, and
other information. This letter is printed in its entirety here for the
information of potential commenters.
Valarie Bristol,
Travis County Commissioner--Precinct 3, Travis County Administration
Building, 314 W. 11th Street, Room 500, P.O. Box 1748, Austin, Texas
78767, 473-9333
June 3, 1996.
Honorable Bruce Babbitt,
Secretary of the Interior, 1849 C Street, NW, Mailstop 7229,
Washington, D.C. 20240
Dear Secretary Babbitt: As a member of the Travis County
Commissioners' Court, I represent the portion of the county which
includes the Barton Springs segment of the Edwards Aquifer, the five
creeks which overlay it, and the outflow at Barton Springs. This
karst system of water flow is a very special treasure and needs
thoughtful protection of its water quality.
The listing of the Barton Springs salamander under the
Endangered Species Act as an endangered species is a serious
decision that requires full analysis. I am asking that the comment
period on the listing, which was closed in 1994, be re-opened for a
period to allow all significant information which has occurred since
then to become part of the decision.
One major event which has occurred has been the formation of the
Balcones Canyonlands Preserve which sets aside over 30,000 acres in
Travis County, of which 4,000 acres are in the Barton Creek
watershed. The Balcones is an example of a public/private
partnership that brought together the environmental and landowner
communities in an unprecedented level of cooperation for mutual
benefit to preserve eight endangered species.
The Loop 1/Highway 290 Task Force is another example of citizens
and governments trying to balance growth issues (in this case a
highway expansion) with water quality over the aquifer recharge
zone. State Representative Sherri Greenberg and I serve as co-chairs
of the Loop 1/Highway 290 Task Force and we have been gathering
extensive information on the water quality issues surrounding all
highway construction in the aquifer area.
Travis County has completed a road project which included an EPA
funded vegetation experiment to test the best method for cleaning
road area runoff.
These are only a few occurrences whose information may be of
importance in the decision on the salamander. I hope that the
comment period can be re-opened to gather all the relevant
information.
I deeply believe that this community wants to do its part in
understanding and protecting the clear, clean water of the Barton
Springs segment of the Edwards Aquifer.
Sincerely,
Valarie Scott Bristol,
Travis County Commissioner, Precinct Three.
The Texas Natural Resource Conservation Commission has also
requested that the comment period be reopened, citing its regulatory
initiatives described above. This letter is also printed in its
entirety here for the information of potential commenters.
Texas Natural Resource Conservation Commission
June 3, 1996.
The Honorable Bruce Babbitt,
Secretary of the Interior, 1849 C Street N.W., Main Interior
Building, Room 6151, Washington, D.C. 20240
Re: Proposed Listing of Barton Springs Salamander
Dear Secretary Babbitt: The purpose of this letter is to request
that you reopen the comment period concerning the proposed listing
of the Barton Springs Salamander. If the comment period is reopened,
the State of Texas will submit to the Fish and Wildlife Service
additional information regarding state and local efforts to protect
this species and its habitat. TNRCC staff believes there is a
substantial amount of information which has not been considered,
much of which was not even available during the original comment
period.
There are numerous examples of state and local regulations
designed to protect water quality. Some of these were in place at
the time of the original listing proposal and some have been created
or modified subsequent to the proposal and some even subsequent to
closing of the comment period. For example, TNRCC has published
proposed rules governing water quality protection zones and will
soon be publishing proposed revisions to the `Edwards Aquifer
Rules'. Both of these rule packages are scheduled to be considered
by the Commission early this fall. Other examples include highway
construction techniques and water quality monitoring resulting from
legislation enacted last year. We do not believe these have been
properly or adequately taken into account as required by the Act,
particularly in light of the magnitude of the decision on the
proposed listing.
Thank you for your consideration of this request.
Very truly yours,
Barry R. McBee,
Chairman.
The Service is thus reopening the comment period to allow
commenters to provide any additional information or comments they have
on the proposed listing. Although every effort will be made to consider
comments received up to July 24, 1996, the Fish and Wildlife Service
may be required to close the comment period in advance of July 24, 1996
in order to comply with any orders of the court in Save Our Springs
Legal Defense Fund v. Babbitt, Civil No. MO-95-CA-230 (W.D. Tex.),
ongoing litigation involving this rulemaking. Comments submitted during
previous comment periods will be considered and need not be
resubmitted.
Author
The primary author of this notice is Steven Helfert (see ADDRESSES
section).
Authority
The authority for this action is the Endangered Species Act of
1973 (16 U.S.C. 1531 et seq.).
Dated: June 17, 1996.
John G. Rogers,
Acting Director, Fish and Wildlife Service.
[FR Doc. 96-15899 Filed 6-21-96; 8:45 am]
BILLING CODE 4310-55-P
Complete official Federal Register PDF
FR Doc. 96-15886 Proposed Interim Approval of the Operating Permits Program; Michigan
[Federal Register Volume 61, Number 122 (Monday, June 24, 1996)]
[Proposed Rules]
[Pages 32391-32398]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15886]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[MI001; FRL-5524-6]
Proposed Interim Approval of the Operating Permits Program;
Michigan
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed interim approval.
-----------------------------------------------------------------------
SUMMARY: The EPA proposes interim approval of the Operating Permits
Program submitted by the State of Michigan for the purpose of complying
with Federal requirements for an approvable State program to issue
operating permits to all major stationary sources, and to certain other
sources, with the exception of sources on Indian lands.
DATES: Comments on this proposed action must be received in writing by
July 24, 1996.
ADDRESSES: Written comments should be addressed to: Robert Miller,
Chief, Permits and Grants Section (AR-18J), EPA, 77 West Jackson
Boulevard, Chicago, Illinois 60604.
Copies of the State's submittal and other supporting information
used in developing the proposed interim approval are available for
inspection during normal business hours at the following location: EPA
Region 5, Air and Radiation Division (AR-18J), 77 West Jackson
Boulevard, Chicago, Illinois 60604.
FOR FURTHER INFORMATION CONTACT: Beth Valenziano, Permits and Grants
Section (AR-18J), EPA, 77 West Jackson Boulevard, Chicago, Illinois
60604, (312) 886-2703. E-mail address: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
A. Introduction
As required under title V of the Clean Air Act (Act) as amended
(1990), EPA has promulgated rules which define the minimum elements of
an approvable State operating permits program and the corresponding
standards and procedures by which EPA will approve, oversee, and
withdraw approval of State operating permits programs. See 57 FR 32250
(July 21, 1992). These rules are codified at 40 Code of Federal
Regulations (CFR) part 70. Title V requires States to develop, and
submit to EPA, programs for issuing these operating permits to all
major stationary sources and to certain other sources.
The Act requires that States develop and submit these programs to
EPA by November 15, 1993, and that EPA act to approve or disapprove
each program within 1 year after receiving the submittal. If the
State's submission is materially changed during the 1-year review
period, 40 CFR 70.4(e)(2) allows EPA to extend the review period for no
more than 1 year following receipt of the additional material. The EPA
received material changes to Michigan's May 16, 1995 submittal on July
20, 1995, and therefore considers EPA's review period to begin from the
latter date.
The EPA's program review occurs pursuant to section 502 of the Act
and the part 70 regulations, which together outline criteria for
approval or disapproval. Where a program substantially, but not fully,
meets the requirements of part 70, EPA may grant the program interim
approval for a period of up to 2 years. If EPA has not fully approved a
program by 2 years after the November 15, 1993 date, or by the end of
an interim program, it must establish and implement a Federal program.
[[Page 32392]]
II. Proposed Action and Implications
A. Analysis of State Submission
1. Support Materials
The EPA received Michigan's title V operating permits program from
the governor's designee, the Director of the Michigan Department of
Natural Resources (MDNR) on May 16, 1995. The EPA received supplemental
program submittals from the Acting Chief of the Air Quality Division,
MDNR, on July 20, 1995, and October 6, 1995. The EPA also received
supplemental program submittals from the Chief of the Air Quality
Division of the newly formed Michigan Department of Environmental
Quality on November 7, 1995 and January 8, 1996. Based on the May 16,
1995 and the July 20, 1995 submittals, EPA deemed Michigan's program
complete in a letter to the MDNR Director dated August 16, 1995.
Together, Michigan's program submittals contain all required elements
of 40 CFR 70.4, including a description of Michigan's operating permits
program, permitting program documentation, and the Attorney General's
legal opinion that the laws of the State of Michigan provide adequate
authority to carry out all aspects of the program required by the Act.
Michigan's November 7, 1995 supplement to its title V program
submittal included Governor John Engler's Executive Order No. 1995-18.
This executive order, effective October 1, 1995, created the Michigan
Department of Environmental Quality (MDEQ) and transferred the
authority for implementation of title V from MDNR to MDEQ. Michigan's
November 7, 1995 supplemental submittal stated that this administrative
transfer does not affect Michigan's part 70 implementation program.
Section 1.1 of Michigan's program description states that MDNR (now
MDEQ) is responsible for implementing and administering the title V
program for all geographical areas of the State. The submittal includes
no further discussion of any basis under which MDEQ might assert
jurisdiction over sources on tribal lands.
Because MDEQ has not demonstrated, consistent with applicable
principles of Indian law and Federal Indian policies, legal authority
to regulate sources on tribal lands, the proposed interim approval of
Michigan's operating permits program will not extend to lands within
the exterior boundaries of any Indian reservation in the State of
Michigan.1 Title V sources located within the exterior boundaries
of Indian reservations in Michigan will be subject to either the
Federal operating permits program, to be promulgated at 40 CFR part 71,
or to a tribal operating permits program approved pursuant to title V
and the regulations that will be promulgated under section 301(d) of
the Act. The section 301(d) regulations will authorize EPA to treat
tribes in the same manner as States for appropriate Act
provisions.2
---------------------------------------------------------------------------
\1\ This is not a determination that MDEQ could not possibly
demonstrate jurisdiction over sources within the exterior boundaries
of Indian reservations in Michigan. However, no such showing has
been made.
\2\ Tribes may also have inherent sovereign authority to
regulate air pollutants from sources on tribal lands.
---------------------------------------------------------------------------
2. Regulations and Program Implementation
Michigan's operating permits program, including the operating
permits program regulations (found in Michigan's administrative rules
for air pollution control, R 336.1101 et. seq.) substantially meet the
requirements of 40 CFR part 70, including: sections 70.2 and 70.3 with
respect to applicability; section 70.5 with respect to application
forms, completeness requirements, and criteria for defining
insignificant activities; sections 70.4, 70.5, and 70.6 with respect to
permit content (including operational flexibility); sections 70.7 and
70.8 with respect to permit processing requirements (including minor
permit modifications and public participation); and section 70.11 with
respect to enforcement authority.
For a detailed analysis of Michigan's program submittal, please
refer to the Technical Support Document (TSD) for this proposed action,
which is available in the informal docket at the address noted above.
The TSD shows that all operating permits program requirements of title
V of the Act, 40 CFR part 70, and relevant guidance were met by
Michigan's submittal, with the exception of those requirements
described in subpart II.B. below.
a. Delegation of State Program to Local Governments. Section
324.5523 of Michigan's Natural Resources and Environmental Protection
Act (NREPA) provides the authority to delegate the State's title V
operating permits program to certain county governments. MDEQ
acknowledges in the State's program submittal that the Wayne County
Department of Environment, Air Quality Management Division, intends to
seek delegation of the State's title V program, and that a program
revision to EPA may be necessary to address any such delegation.
b. Definition of Potential to Emit. The Michigan definition of
``potential to emit'' in R 336.1116(m) provides that physical and
operational limits on a source's capacity can be considered in
determining ``potential to emit, '' provided that such limits are
``legally enforceable. '' The 40 CFR 70.2 definition of ``potential to
emit'' requires such limits to be federally enforceable.
Although two recent court cases have challenged the ``federally
enforceable'' requirement in other Act programs, the provision is still
required by part 70.
The EPA issued a memorandum on January 22, 1996 entitled ``Release
of Interim Policy on Federal Enforceability of Limitations on Potential
to Emit'' that addresses the court cases and their effect on the Act's
programs. In response to the court cases (and a pending challenge to
the part 70 ``potential to emit'' requirements), the memorandum also
states EPA's intention to propose rulemaking actions in the spring of
1996 that would address the Federal enforceability issue as it relates
to title V and other Act programs. At this time, however, the title V
Federal enforceability requirements remain unaffected, and therefore
EPA is proposing that the State revise its definition to include the
Federal enforceability requirement in its ``potential to emit''
definition as a condition of full approval.
This interim approval condition does not affect the State's ability
to utilize the January 25, 1995 EPA memorandum entitled, ``Options for
Limiting the Potential to Emit (PTE) of a Stationary Source under
Section 112 and Title V of the Clean Air Act (Act), '' 3 which
provides a transition policy through January 25, 1997 for establishing
federally enforceable mechanisms for limiting PTE. In addition, this
issue would no longer be a condition for full approval if the final EPA
rulemaking referred to above were to no longer require Federal
enforceability in limiting ``potential to emit'' as part of the title V
program. After EPA finalizes its rulemaking on this issue, it will work
with Michigan to assure that the State's regulations are consistent
with national requirements.
---------------------------------------------------------------------------
\3\ As amended by the January 22, 1996 interim policy
memorandum.
---------------------------------------------------------------------------
c. Use of Old Permits to Limit Potential to Emit. R 336.1209
provides a mechanism for sources to limit their potential to emit
through certain existing permits, and therefore avoid being subject to
the title V operating permit program. The EPA notes that existing State
permits can establish
[[Page 32393]]
federally enforceable limits on potential to emit to the extent that
the permits have been issued pursuant to an approved State
Implementation Plan (SIP), and are also practically enforceable. The
EPA understands that Michigan will be submitting R 336.1209 as a SIP
revision to ensure that such permits are federally enforceable. For
additional information, see the January 25, 1995 and the January 22,
1996 EPA memoranda referenced in subpart II.A.2.b. above.
d. Definition of Title I Modification. 40 CFR part 70 uses the term
``modifications under any provision of title I of the Act'' in
establishing requirements for operational flexibility, off permit
provisions, and minor permit modifications. Because this term was not
specifically defined in Federal regulations, there have been differing
interpretations regarding whether the term includes or excludes
modifications under States' minor New Source Review (NSR) Programs. The
Michigan regulations use this term in addressing the State's
operational flexibility [R 336.1215(2)], off permit [R 336.1215(3)],
minor permit modification [R 336.1216(2)], and significant modification
[R 336.1216(3)] provisions. In addition, the State's minor permit
modification provisions specifically exclude minor State NSR
modifications in R 336.1216(2)(a)(v), which is the State's
interpretation of 40 CFR 70.7(e)(2)(i)(A)(5).
In an August 29, 1994 rulemaking proposal, EPA explained its view
that ``modifications under any provision of title I of the Act''
include minor NSR. However, EPA solicited public comment on whether the
phrase should be interpreted to mean literally any change at a source
that would trigger permitting authority review under regulations
approved or promulgated under title I of the Act. 59 FR 44572. This
would include State NSR programs approved by EPA as part of the SIP
under section 110(a)(2)(C) of the Act.
The EPA has not yet taken final action on the August 29, 1994
proposal. However, in response to public comment on that proposal, EPA
has decided that the definition of ``modifications under any provision
of title I of the Act'' is best interpreted as not including changes
reviewed under minor NSR programs. This decision was included in the
supplemental 40 CFR part 70 rulemaking proposal published on August 31,
1995. 60 FR 45545. Therefore, Michigan's interpretation of this term in
its minor permit modification provisions is consistent with the
requirements of part 70.
e. Research and Development Activities. R 336.1211(3) provides that
process and process equipment which is used exclusively for research
and development (R&D), and that is located on the same contiguous site
as other process or process equipment used for manufacturing a product
shall be treated as a separate source for purposes of determining
operating permit program applicability. The Michigan regulations define
R&D activities in R 336.1283, and specifically exclude activities that
include the production of a product for sale, unless such sale is
incidental to the process.
The EPA stated in the preamble to the final part 70 rule that ``in
many cases States will have the flexibility to treat an R&D facility *
* * as though it were a separate source, and [the R&D facility] would
then be required to have a title V permit only if the R&D facility
itself would be a major source.'' 57 FR 32264 and 32269. Read
consistently with the major source definition in 40 CFR 70.2, this
statement means that separate source treatment would occur only in
situations where the co-located R&D portion of a source has its own
two-digit Standard Industrial Classification code and is not a support
facility. As explained in the supplemental proposal to revise part 70,
EPA believes that R&D should be treated as having its own industrial
grouping for purposes of determining major source status, and has
proposed to revise 40 CFR part 70 accordingly. 60 FR 45556-45558.
It is important to note that separate treatment will not exempt R&D
facilities in all cases. Some R&D activities may still be subject to
permitting because they are either individually major or are a support
facility that makes significant contributions to the product of a co-
located major facility. The support facility test dictates that, even
where there are two or more industrial groupings at a commonly owned
facility, these groupings should be considered together if the output
of one is more than 50 percent devoted to support of another. Although
Michigan's program does not specifically reference the support facility
test for R&D activities, EPA expects that such a test will be applied
in making major source applicability determinations as established
under the NSR program and continued under title V.
f. Insignificant Activities. Michigan's insignificant activities
rule, R 336.1212(1), lists various activities that are excluded from
calculations of potential to emit for purposes of determining whether a
source is major. The part 70 rule does not provide for such an
exception to major source determinations. Although the listed
activities might qualify as ``insignificant'' under 40 CFR 70.5(c) or
even ``trivial'' (as described in EPA's ``white paper'' on permit
applications), these concepts relate to the need to describe activities
in permit applications, and not to whether such activities need to be
considered in a major source determination. Major source determinations
are intended to be based on the potential impact of a source, as
measured by its potential to emit, and not merely on those activities
at the source which have historically been regulated. In addition, it
should be noted that any emissions from these units can have the same
effect on public health and the environment as similar amounts from the
regulated emissions units at the plant. The EPA is therefore proposing
to require the State to revise its regulations to delete these
exemptions from major source determinations as a condition of full
approval. This interim approval condition does not apply to the State's
use of R 336.1212(1) as an insignificant activities list pursuant to 40
CFR 70.5(c).
The EPA does agree with the concern underlying these provisions,
that significant resources not be expended on calculation of emissions
from activities such as these which normally do not implicate clean air
regulations. The EPA expects that emissions from activities such as
those exempted by R 336.1212(1) would only be examined where those
emissions might actually impact whether the source is major. The EPA
expects that, where EPA has not spoken to this issue precisely, sources
will exercise their judgment (as guided by the permitting authority) in
deciding the rigor of analysis appropriate to calculate PTE for
different insignificant activities at the source. For example, a rough
estimate based on engineering judgment may be all that is necessary.
The EPA believes that following such a ``rule of reason'' approach
should alleviate the concerns underlying the State's exemptions.
g. Source Category Limited Interim Approval. Michigan's permit fee
program relies on a 4 year initial permit issuance schedule to
demonstrate that the fees are sufficient to cover the State's operating
permit program costs. Because of this, the State has requested that EPA
approve a 4 year initial permit issuance schedule under source category
limited interim approval. See the EPA guidance memorandum entitled
``Interim Title V Program Approvals,'' signed by John S. Seitz,
Director of EPA's Office of Air Quality
[[Page 32394]]
Planning and Standards, August 2, 1993. In accordance with this
guidance, Michigan's program submittal demonstrates compelling reasons
why the State cannot permit initial sources in 3 years, including a
short term funding deficit that is eliminated under a 4 year permit
issuance schedule, a large and complex source population, and an
exceptional ramp up workload caused primarily by the State never having
implemented an operating permit program similar to the title V program.
The State also demonstrates that its proposed 4 year issuance schedule
substantially meets the requirements of 40 CFR part 70 by permitting 60
percent of the title V sources and 80 percent of the emissions during
the first 3 years of the program.
However, EPA cannot grant Michigan source category limited interim
approval until after Michigan finalizes revisions to its permit
issuance schedule regulation [R 336.1210(13)]. This regulation
currently requires a 3 year issuance schedule. In other words, because
the State's regulations currently meet the 40 CFR 70.4(b)(11)(ii)
requirement to issue initial permits in 3 years, source category
limited interim approval is not warranted. However, because EPA
recognizes MDEQ's proposed 4 year permit issuance schedule for the
purposes of determining fee schedule sufficiency, EPA may grant source
category limited interim approval to the State after it revises its
regulations to incorporate a 4 year permit issuance schedule, provided
that the State continues to meet the requirements for source category
limited interim approval. Therefore, EPA is proposing full approval of
the State's permit issuance schedule. In the alternative, EPA is
proposing source category limited interim approval, provided: (1) The
State finalizes regulatory revisions to its permit issuance schedule
that are consistent with the current draft revisions, and (2) the State
program continues to meet the requirements for source category limited
interim approval outlined in the August 2, 1993 guidance.
h. Startup, Shutdown, and Malfunction Provisions. R 336.1912, R
336.1913, and R 336.1914 include provisions relating to startups,
shutdowns, and malfunctions (SSM) of sources. The EPA reviewed these
regulations as a part of Michigan's title V program to determine
whether these rules affect the State's ability to meet the requirements
of 40 CFR 70.4(b)(3)(i). This provision requires that a title V program
must have the authority to issue permits and assure compliance with all
applicable requirements, including the requirements of the title V
program, by all part 70 sources.
The Michigan SSM regulations provide an affirmative defense from
violations of permit conditions which occur during SSM, provided that
sources meet the requirements in these State rules. These requirements
include the implementation of written preventative maintenance and
malfunction abatement plans and other operating, recordkeeping, and
reporting requirements. Michigan's title V Attorney General's opinion
acknowledges that the rules establish an affirmative defense for
certain violations. Structured as they are, the SSM provisions cannot
be characterized as being based on enforcement discretion.
The only affirmative defense allowed in the title V regulations
(other than any defense or other enforcement relief provided for in the
applicable requirements themselves) is the emergency defense provisions
in 40 CFR 70.6(g). The emergency defense is available only for
exceedances of technology based emission limitations attributable to an
emergency, as defined in 40 CFR 70.6(g)(1). The Michigan SSM
affirmative defense is broader than the emergency defense in these two
respects. First, the Michigan defense extends to exceedances beyond
emergency situations, and applies to exceedances caused by startups,
shutdowns, and malfunctions. Second, the Michigan defense applies to
exceedances of any emission standard and any violation of a continuous
emission, parametric monitoring, or automated recordkeeping
requirement. In contrast, the emergency defense may only apply to
exceedances of technology based emission limitations. Because
Michigan's SSM affirmative defense is broader than the defense provided
by part 70, the State does not have the authority to issue permits and
assure compliance with all applicable requirements, as required by 40
CFR 70.4(b)(3)(i). Therefore, EPA is proposing that Michigan revise its
SSM regulations to be consistent with the affirmative defense in 40 CFR
70.6(g) as a condition of full approval.
The EPA notes that Michigan's SSM regulations contain certain
provisions similar to certain SSM operating requirements found in 40
CFR part 63 (general provisions for National Emission Standards for
Hazardous Air Pollutants, section 112), 40 CFR part 60 (general
provisions for New Source Performance Standards, section 111), and
EPA's SIP policy regarding treatment of SSM. See EPA's policy
memorandum dated February 15, 1983 from Kathleen M. Bennett, Assistant
Administrator for Air, Noise, and Radiation entitled ``Policy on Excess
Emissions During Startup, Shutdown, Maintenance, and Malfunctions''.
However, these provisions of the part 60 and 63 regulations do not
apply uniformly to all Federal standards, and the 1983 policy does not
establish an affirmative defense from violations caused by SSM
conditions.
The EPA may consider alternative approaches for resolving this
condition for full approval, such as an approach that relies on
enforcement discretion (see the February 15, 1983 Bennett memorandum),
and is willing to work with the State as necessary. There may be
various ways in which to structure such an enforcement discretion
approach, and EPA will not attempt to provide detailed guidance in this
document. However, EPA notes that certain issues would have to be
addressed by the State if it were to craft such an approach using the
current State rule as a starting point. Among these, the definition of
``malfunction'' in R 336.1113(d) does not limit malfunctions to
failures that are ``infrequent'' and ``not reasonably preventable'',
and is therefore broader than the Federal definition in 40 CFR 60.2 and
63.2. The State's air pollution control bypass provisions in R
336.1913(3)(b) and R 336.1914(4)(b) are broader than that provided by
the Act. See the February 15, 1983 Bennett memorandum. The alternate
emission limitations for startups and shutdowns in R 336.1914(4)(d)
would allow relaxations of Act requirements, including NSR limitations,
New Source Performance Standards, toxics requirements (NESHAP, MACT),
etc. Finally, the State SSM regulations provide no authority for MDEQ
to review and require revisions to a source's written emission
minimization plan for normal or usual startups and shutdowns. Such
authority is appropriate to ensure that operating practices for
startups and shutdowns meet good engineering practice for minimizing
emissions, similar to the authority R 336.1911 currently provides for
State review and revision of written preventative maintenance and
malfunction abatement plans.
i. Environmental Audit Privilege and Immunity Law. Sections
502(b)(5) (A) and (E) of the Act require that approvable State title V
programs must have adequate authority to assure that sources comply
with all applicable Act requirements, as well as the authority to
enforce permits and recover minimum civil penalties and appropriate
criminal penalties. In addition, part 70 explicitly
[[Page 32395]]
requires States to have certain enforcement authorities, including the
authority to seek injunctive relief to enjoin a violation, to bring
suit to restrain persons where a facility is posing an imminent and
substantial endangerment to public health or welfare, and to recover
appropriate criminal and civil penalties. Section 113(e) of the Act
sets forth penalty factors for EPA or a court to consider in assessing
penalties for civil or criminal violations of the Act, factors which
necessarily apply to penalties for violations of title V permits. The
EPA is concerned about the potential impact of some State audit
privilege and immunity laws on the ability of the States to enforce
Federal requirements, including those under title V of the Act. Upon
review and consideration of the statutory and regulatory provisions
discussed above, EPA issued guidance on April 5, 1996, entitled
``Effect of Audit Immunity/Privilege Laws on States' Ability to Enforce
Title V Requirements''. This guidance outlines certain elements of the
State audit immunity and privilege laws which, in EPA's view, may so
hamper the State's ability to enforce as to render the Agency unable to
approve the title V operating permit program. The guidance is
consistent with EPA's December 22, 1995 audit policy, ``Incentives for
Self-Policing: Discovery, Disclosure, Correction and Prevention of
Violations''. 60 FR 66706.
On March 18, 1996, Michigan Governor John Engler signed the State's
Environmental Audit Privilege and Immunity Law, part 148 of Michigan's
Natural Resources and Environmental Protection Act (NREPA). This law
provides that sources can hold confidential broad categories of
information contained in a voluntary environmental audit report. The
law also provides sources and persons immunity from certain State civil
and criminal penalties for violations discovered through an
environmental self audit, provided the violations are promptly reported
and corrected.
In the April 5, 1996 memorandum referenced above, EPA set out
specific authorities, based upon the requirements of 40 CFR 70.11, that
cannot be affected by State privilege and immunity laws if a State is
to receive full approval of its title V program. The EPA has identified
several sections of Michigan's privilege and immunity law, described
below, which appear to conflict with the requirements of part 70.
Section 14802 of Michigan's Environmental Audit Privilege and
Immunity Law provides for the protection of factual data disclosed
during an environmental audit. In conjunction with the definition of
``environmental audit'' and ``environmental audit report'' contained in
section 14801, Michigan's audit privilege is so broad that it may be
interpreted as restricting access to data and preventing testimony
which is necessary to determine whether a civil or criminal violation
has occurred or is imminent. Similarly, the broad language of section
14809 may be interpreted as prohibiting the State from assessing civil
penalties for violations of regulations, permits, consent orders or
agreements; violations which reflect a parent company's pattern of
violations at various facilities; and violations which result in
serious harm or imminent and substantial endangerment. In addition,
section 14809 appears to allow sources to retain economic benefit from
a violation, even if substantial or deliberately obtained. Although
section 14802 appears to contain several exemptions from the otherwise
broad scope of the privilege, EPA is unable to determine the extent to
which the exemption limits the application of the privilege provisions.
Furthermore, EPA does not believe that the section 14802 exemption
applies to any portion of the penalty immunity contained in section
14809.
For these reasons, EPA believes that Michigan's privilege and
immunity law affects the State's authority to assure compliance with
part 70 permits and the requirements of the operating permit program
[40 CFR 70.4(b)(3)(i)], as well as the authority to enforce permits and
the requirement to obtain a permit [40 CFR 70.4(b)(3)(vii)]. In
addition, EPA believes that the law affects Michigan's authority to
recover civil penalties in accordance with 40 CFR 70.11(a)(3)(i).
Therefore, EPA is proposing that Michigan must revise its privilege and
immunity law, part 148 of NREPA, to ensure that the State meets these
title V enforcement requirements as a condition of full approval. The
EPA is also proposing that Michigan must submit a revised title V
Attorney General's opinion that addresses the concerns listed above,
and certifies that the State title V program meets the enforcement
requirements of 40 CFR 70.4(b)(3)(i), 40 CFR 70.4(b)(3)(vii), and 40
CFR 70.11(a)(3)(i) as a condition of full approval.
The EPA acknowledges that Michigan may have a different
interpretation of the provisions in the State's privilege and immunity
law. If Michigan believes that its current law does not affect the part
70 enforcement requirements addressed above, Michigan need only submit
a revised title V Attorney General's opinion certifying that the State
title V program meets the enforcement requirements of 40 CFR
70.4(b)(3)(i), 40 CFR 70.4(b)(3)(vii), and 40 CFR 70.11(a)(3)(i) as a
condition of full approval. The Attorney General's opinion must also
specifically address why EPA's interim approval provision requiring
revisions to the currently enacted law is not valid.
To further ensure that Michigan's privilege and immunity law does
not affect other requirements of the title V program, EPA believes that
it is also necessary for the State to submit a supplemental Attorney
General's opinion as a condition of full approval. This supplemental
Attorney General's opinion must certify that any other title V
requirements that may be affected by the privilege and immunity law are
met, including: Michigan's authority to bring suit to restrain any
person from engaging in any activity in violation of a permit that is
presenting an imminent and substantial endangerment [40 CFR
70.11(a)(1)]; Michigan's authority to seek injunctive relief to enjoin
any violation of any program requirement, including permit conditions
[40 CFR 70.11(a)(2)]; Michigan's authority to recover criminal fines
[40 CFR 70.11(a)(3) (ii) and (iii)]; and the requirement that the
burden of proof for establishing civil and criminal violations is no
greater than the burden of proof required under the Act [40 CFR
70.11(b)]. The EPA intends to work with Michigan to ensure that the
supplemental Attorney General's opinion specifically addresses all
potential areas of concern regarding the State's privilege and immunity
law.
3. Permit Fee Demonstration
Michigan's operating permits program fee schedule is established in
section 324.5522, NREPA. The State's program submittal includes a
detailed demonstration that Michigan's fee schedule is sufficient to
cover the State's operating permit program costs. Because the
sufficiency of the fee schedule is based on a 4 year initial permit
issuance schedule, Michigan has requested that EPA approve a 4 year
initial permit issuance schedule under source category limited interim
approval (see the discussion on source category limited interim
approval in subpart II.A.2.g. above).
Michigan's fee schedule consists of an annual fee equal to a
facility charge plus an emissions charge. The facility charge is
$2,500.00 for major sources of criteria pollutants, and $1,000.00 for
major sources of hazardous air pollutants. The emissions charge is
$25.00 per ton of
[[Page 32396]]
actual emissions, with a facility cap of 4,000 tons. Sources with total
actual emissions less than 4,000 tons have a 1,000 ton per pollutant
cap.
4. Provisions Implementing the Requirements of Other Titles of the Act
a. Authority for Section 112 Implementation. Michigan has
demonstrated in its title V program submittal adequate legal authority
to implement and enforce all section 112 toxics requirements through
the title V permit. This legal authority is contained in Michigan's
enabling legislation and in regulatory provisions that define
``applicable requirements'' and provide that the permit must
incorporate all applicable requirements. The EPA has determined that
this legal authority is sufficient to allow Michigan to issue permits
to part 70 sources that assure compliance with all section 112
requirements.
The EPA is interpreting the above legal authority to mean that
Michigan is able to carry out all section 112 activities for part 70
sources. For further rationale on this interpretation, please refer to
the TSD for this proposed action.
b. Implementation of Section 112(g). Section 112(g) of the Act
requires States to issue case-by-case Maximum Achievable Control
Technology (MACT) determinations to sources that modify, construct, or
reconstruct, if EPA has not established MACT for that particular source
category. According to the interpretive notice published in the Federal
Register on February 14, 1995, the requirements of section 112(g) will
not become effective until after EPA has promulgated a regulation
addressing that provision. The notice sets forth in detail the
rationale for this interpretation. See 60 FR 8333. At the time of
Michigan's program submittal and EPA's subsequent review period, EPA
has not promulgated a Federal regulation containing the specific
requirements of section 112(g).
The section 112(g) interpretative notice explains that EPA is still
considering whether the effective date of section 112(g) should be
delayed beyond the date of promulgation of the Federal rule so as to
allow States time to adopt rules implementing the Federal rule, and
that EPA will provide for any such additional delay in the final
section 112(g) rulemaking. Unless and until EPA provides for such an
additional postponement of section 112(g), Michigan must be able to
implement section 112(g) during the transition period between
promulgation of the Federal section 112(g) rule and adoption of
implementing State regulations.
The EPA is aware that Michigan lacks a program designed
specifically to implement section 112(g). However, Michigan does have a
preconstruction review program that can serve as an adequate
implementation vehicle during the transition period. Therefore, EPA is
proposing approval under title V and part 70, of the use of Michigan's
preconstruction permit program as the procedural mechanism for
establishing federally enforceable case-by-case MACT emission limits
for hazardous air pollutants (HAP) during the transition period.
However, since the approval is for the single purpose of providing a
mechanism to implement section 112(g) during the transition period, the
approval itself will be without effect if EPA decides in the final
section 112(g) rule that sources are not subject to the requirements of
the rule until State regulations are adopted. This proposed approval is
limited solely to the issuance of federally enforceable HAP emission
limits to comply with the requirements of section 112(g), and is not an
approval under section 110 of the Act.
This approval is for an interim period only, until such time as the
State adopts regulations consistent with any regulations promulgated by
EPA to implement section 112(g). Accordingly, EPA is proposing to limit
the duration of this approval to a reasonable time following
promulgation of section 112(g) regulations so that Michigan, acting
expeditiously, will be able to adopt regulations consistent with the
section 112(g) regulations. The EPA is proposing here to limit the
duration of this approval to 18 months following promulgation by EPA of
section 112(g) regulations.
Michigan's construction permit regulations [R 336.1205(2)] assume
that section 112(g) authority is delegated to the State by EPA. The
implementation of section 112(g) by the State for sources subject to
title V is a requirement for approval of the State's title V program,
and is therefore not a delegated program. To address the requirements
in R 336.1205(2), the State should refer instead to EPA's forthcoming
final rulemaking on Michigan's title V program and to the section
112(g) implementation requirements to be promulgated in the final
section 112(g) regulations.
c. Program for Straight Delegation of Section 112 Standards.
Requirements for operating permits program approval, specified in 40
CFR 70.4(b), also address section 112(l)(5) requirements for approval
of a program for delegation of section 112 standards as promulgated by
EPA as they apply to part 70 sources. Section 112(l)(5) requires that
the State's program contain adequate authorities, adequate resources
for implementation, and an expeditious compliance schedule, which are
also requirements under part 70.
Therefore, EPA is also proposing to grant approval under section
112(l)(5) and 40 CFR 63.91 of Michigan's program for receiving
delegation of section 112 standards that are unchanged from the Federal
standards as promulgated. Because Michigan has the authority under
section 324.5506(6), NREPA, to include any conditions in an operating
permit that are necessary to assure compliance with the Act (including
section 112 requirements), EPA proposes to approve the delegation of
section 112 standards through straight delegation. The details of this
delegation mechanism will be set forth in a Memorandum of Agreement
between Michigan and EPA. The State of Michigan requested delegation of
section 112 standards in a letter from Russell J. Harding, Director,
MDEQ, dated October 12, 1995. This proposed approval of Michigan's
program for delegations applies to both existing and future standards,
but is limited to sources covered by the part 70 program.
d. Implementation of Title IV. Michigan's operating permits program
contains adequate authority to issue permits that include the
requirements of the title IV acid rain program. The State has
incorporated the requirements of 40 CFR part 72 by reference in R
336.1299(d).
B. Options for Approval/Disapproval and Implications
The EPA is proposing to grant interim approval to the State of
Michigan's operating permits program received on May 16, 1995, July 20,
1995, October 6, 1995, November 7, 1995, and January 8, 1996. This
interim approval of Michigan's operating permits program applies to all
title V sources, with the exception of any sources of air pollution
over which an Indian Tribe has jurisdiction. See, e.g., 59 FR 55813,
55815-18 (Nov. 9, 1994). The term ``Indian Tribe'' is defined under the
Act as ``any Indian tribe, band, nation, or other organized group or
community, including any Alaska Native village, which is Federally
recognized as eligible for the special programs and services provided
by the United States to Indians because of their status as Indians.''
See section 302(r) of the Act; see also 59 FR 43956, 43962 (Aug. 25,
1994); 58 FR 54364 (Oct. 21, 1993).
[[Page 32397]]
1. Proposal in the Alternative
The EPA proposes full approval of the State's 3 year initial permit
issuance schedule. In the alternative, EPA proposes source category
limited interim approval of the State's 4 year permit issuance
schedule, provided: (1) the State finalizes regulatory revisions to its
permit issuance schedule that are consistent with the State's November
7, 1995 supplemental title V program submittal, and (2) the State
program continues to meet the requirements for source category limited
interim approval.
2. Proposed Interim Approval Issues
If interim approval of Michigan's operating permits program is
promulgated as proposed today, the State must make the following
changes to receive full approval.
a. Revise the definition of ``potential to emit'' in R 336.1116(m)
to require that physical and operational limits on a source's capacity
must be federally enforceable. Federal enforceability is required by
the definition of ``potential to emit'' in 40 CFR 70.2. However, this
issue would cease to be a condition of full approval if EPA revises the
40 CFR 70.2 definition to no longer require Federal enforceability in
limiting ``potential to emit.''
b. Revise the definition of ``schedule of compliance'' in R
336.1119(a) to provide that the schedule of compliance for sources that
are not in compliance shall resemble and be at least as stringent as
that contained in any judicial consent decree or administrative order
to which the source is subject. This provision is required by 40 CFR
70.5(c)(8)(iii)(C).
c. Revise the definition of ``stationary source'' in R 336.1119(q)
to provide that the definition includes all of the process and process
equipment which are located at one or more contiguous or adjacent
properties. The emphasized phrase is not currently included in the
State regulation. This provision is required in the definition of
``major source'' in 40 CFR 70.2.
d. Revise R 336.1211(l) to provide that nonmajor solid waste
incineration units required to obtain a permit pursuant to section
129(e) of the Act are subject to the title V permits program. The
permitting deferral for nonmajor section 111 sources in 40 CFR 70.3(b)
does not apply to solid waste incineration units required to obtain a
permit pursuant to section 129(e) of the Act.
e. Revise R 336.1212(l) to delete the exemption of certain
activities from determining major source status. Part 70 and other
relevant Act programs do not provide for such exemptions from major
source determinations. This interim approval issue does not apply to
the State's use of R 336.1212(l) as an insignificant activities list
pursuant to 40 CFR 70.5(c).
f. Revise the State statutes or regulations, as appropriate, to
require that permit applications include a certification of compliance
with all applicable requirements and a statement of the methods used
for determining compliance, as specified in 40 CFR 70.5(c)(9). Although
Michigan's permit application forms include compliance certification
requirements, EPA believes that neither the State statutes nor the
State regulations clearly require applications to include this
information.
g. Revise the definition of ``emergency'' in section 324.5527(1),
NREPA, to ensure that the State's definition is not broader than that
provided by 40 CFR 70.6(g)(1). The definition of ``emergency'' in 40
CFR 70.6(g)(1) includes, in part, ``any situation arising from sudden
and reasonably unforeseeable events beyond the control of the source,
including acts of God.''
h. Remove the provisions of section 324.5534, NREPA, which provide
for exemptions from penalties or fines for violations caused by an act
of God, war, strike, riot, catastrophe, or other condition as to which
negligence or willful misconduct was not the proximate cause. Title V
does not provide for such broad penalty and fine exemptions.
i. Revise R 336.1913 and R 336.1914 to be consistent with either
the affirmative defense provisions in 40 CFR 70.6(g), or EPA's
enforcement discretion policy. These State regulations provide an
affirmative defense that is broader than that provided by 40 CFR
70.6(g), and therefore affect State's ability to assure compliance with
all applicable requirements and the requirements of part 70 [40 CFR
70.4(b)(3)(i)].
j. Address all of the following issues relating to the State's
audit privilege and immunity law, part 148 of NREPA. These conditions
are proposed interim approval issues to the extent that they affect the
State's title V operating permits program and the requirements of part
70.
i. Narrow the applicability of the privilege provided in section
14802, part 148 of NREPA, and narrow the applicability of the immunity
provided by section 14809, part 148 of NREPA, to ensure that the State
title V program has the authority to: assure compliance with part 70
permits and the requirements of the operating permits program [40 CFR
70.4(b)(3)(i)]; enforce permits and the requirement to obtain a permit
[40 CFR 70.4(b)(3)(vii)]; and recover civil penalties in accordance
with 40 CFR 70.11(a)(3)(i).
ii. Submit a revised title V Attorney General's opinion that
addresses EPA's concerns in subpart II.A.2.i. above, and certifies that
the revised part 148 does not affect Michigan's ability to meet the
enforcement requirements of 40 CFR 70.4(b)(3)(i), 40 CFR
70.4(b)(3)(vii), and 40 CFR 70.11(a)(3)(i).
iii. In lieu of subparts i. and ii. above, submit a revised title V
Attorney General's opinion certifying that the current part 148 does
not affect the enforcement requirements of 40 CFR 70.4(b)(3)(i), 40 CFR
70.4(b)(3)(vii), and 40 CFR 70.11(a)(3)(i). The Attorney General's
opinion must also specifically address why EPA's interim approval
provision requiring revisions to the currently enacted law is not
valid.
iv. Submit a supplemental Attorney General's opinion certifying
that all other title V authorities that may be affected by part 148 are
met, including: Michigan's authority to bring suit to restrain any
person from engaging in any activity in violation of a permit that is
presenting an imminent and substantial endangerment [40 CFR
70.11(a)(1)]; Michigan's authority to seek injunctive relief to enjoin
any violation of any program requirement, including permit conditions
[40 CFR 70.11(a)(2)]; Michigan's authority to recover criminal fines
[40 CFR 70.11(a)(3) (ii) and (iii)]; and the requirement that the
burden of proof for establishing civil and criminal violations is no
greater than the burden of proof required under the Act [40 CFR
70.11(b)]. The supplemental Attorney General's opinion must
specifically address these requirements in light of the provisions
contained in the State's privilege and immunity law.
This interim approval, which may not be renewed, extends for a
period of up to 2 years. During the interim approval period, the State
is protected from sanctions for failure to have a program, and EPA is
not obligated to promulgate a Federal permits program in the State.
Permits issued under a program with interim approval have full standing
with respect to part 70, and the 1-year time period for submittal of
permit applications by subject sources begins upon interim approval, as
does the 3-year time period for processing the initial permit
applications.
3. Other Proposed Actions
As outlined in subpart II.A.4.c., EPA is proposing to grant
approval under section 112(1)(5) and 40 CFR 63.91 of
[[Page 32398]]
the State's program for receiving delegation of section 112 standards
that are unchanged from Federal standards as promulgated. This program
for delegations only applies to sources covered by the part 70 program.
As outlined in subpart II.A.4.b., EPA is also proposing to grant
approval of Michigan's preconstruction permit program, found in R
336.1201, under the authority of title V and part 70 solely for the
purpose of implementing section 112(g) to the extent necessary during
the transition period between promulgation of the Federal section
112(g) rule and adoption of any necessary State rules to implement
EPA's section 112(g) regulations. The EPA proposes to limit the
duration of this approval to 18 months following promulgation by EPA of
section 112(g) regulations, to provide Michigan adequate time to adopt
any necessary regulations consistent with the Federal requirements.
C. Federal Oversight and Sanctions
If EPA were to finalize this proposed interim approval, it would
extend for 2 years following the effective date of final interim
approval, and could not be renewed. During the interim approval period,
Michigan would be protected from sanctions, and EPA would not be
obligated to promulgate, administer and enforce a Federal permits
program for the State. Permits issued under a program with interim
approval have full standing with respect to part 70, and the 1-year
time period for submittal of permit applications by subject sources
begins upon the effective date of interim approval, as does the 3-year
time period for processing the initial permit applications.
Following final interim approval, if the State failed to submit a
complete corrective program for full approval by the date 6 months
before expiration of the interim approval, EPA would start an 18-month
clock for mandatory sanctions. If the State then failed to submit a
corrective program that EPA found complete before the expiration of
that 18-month period, EPA would be required to apply one of the
sanctions in section 179(b) of the Act, which would remain in effect
until EPA determined that the State had corrected the deficiency by
submitting a complete corrective program. Moreover, if the
Administrator found a lack of good faith on the part of the State, both
sanctions under section 179(b) would apply after the expiration of the
18-month period until the Administrator determined that the State had
come into compliance. In any case, if, 6 months after application of
the first sanction, the State still had not submitted a corrective
program that EPA found complete, a second sanction would be required.
If, following final interim approval, EPA were to disapprove the
State's complete corrective program, EPA would be required to apply one
of the section 179(b) sanctions on the date 18 months after the
effective date of the disapproval, unless prior to that date the State
had submitted a revised program and EPA had determined that it
corrected the deficiencies that prompted the disapproval. Moreover, if
the Administrator found a lack of good faith on the part of the State,
both sanctions under section 179(b) would apply after the expiration of
the 18-month period until the Administrator determined that the State
had come into compliance. In all cases, if, 6 months after EPA applied
the first sanction, the State had not submitted a revised program that
EPA had determined corrected the deficiencies that prompted
disapproval, a second sanction would be required.
In addition, discretionary sanctions may be applied where warranted
any time after the end of an interim approval period if a State has not
timely submitted a complete corrective program or EPA has disapproved a
submitted corrective program. Moreover, if EPA has not granted full
approval to a State program by the expiration of an interim approval
and that expiration occurs after November 15, 1995, EPA must
promulgate, administer and enforce a Federal permits program for that
State upon interim approval expiration.
III. Administrative Requirements
A. Request for Public Comments
The EPA is requesting comments on all aspects of this proposed
interim approval. Copies of the State's submittal and other information
relied upon for the proposed interim approval are contained in an
informal docket maintained at the EPA Regional Office. This docket is
an organized and complete file of all the information submitted to, or
otherwise considered by, EPA in the development of this proposed
interim approval. The principal purposes of this docket are:
(1) to allow interested parties a means to identify and locate
documents so that they can effectively participate in the approval
process, and
(2) to serve as the record in case of judicial review. The EPA will
consider any comments received by July 24, 1996.
B. Executive Order 12866
The Office of Management and Budget has exempted this action from
Executive Order 12866 review.
C. Regulatory Flexibility Act
The EPA's actions under section 502 of the Act do not create any
new requirements, but simply address operating permits programs
submitted to satisfy the requirements of 40 CFR part 70. Because this
action does not impose any new requirements, it does not have a
significant impact on a substantial number of small entities.
D. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995
(Unfunded Mandates Act), signed into law on March 22, 1995, EPA must
prepare a budgetary impact statement to accompany any proposed or final
rule that includes a Federal mandate that may result in estimated costs
to State, local, or tribal governments in the aggregate; or to the
private sector, of $100 million or more. Under section 205, EPA must
select the most cost-effective and least burdensome alternative that
achieves the objectives of the rule and is consistent with statutory
requirements. Section 203 requires EPA to establish a plan for
informing and advising any small governments that may be significantly
or uniquely impacted by the rule.
The EPA has determined that the proposed action promulgated today
does not include a Federal mandate that may result in estimated costs
of $100 million or more to either State, local, or tribal governments
in the aggregate, or to the private sector. This Federal action
approves pre-existing requirements under State or local law, and
imposes no new Federal requirements. Accordingly, no additional costs
to State, local, or tribal governments, or to the private sector,
result from this action.
List of Subjects in 40 CFR Part 70
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Operating permits,
Reporting and recordkeeping requirements.
Authority: 42 U.S.C. 7401-7671q.
Dated: June 13, 1996.
Margaret McCue,
Acting Regional Administrator.
[FR Doc. 96-15886 Filed 6-21-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-15857 Satellite Application and Licensing Procedures
[Federal Register Volume 61, Number 122 (Monday, June 24, 1996)]
[Proposed Rules]
[Pages 32398-32401]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15857]
=======================================================================
-----------------------------------------------------------------------
[[Page 32399]]
FEDERAL COMMUNICATIONS COMMISSION
47 CFR PART 25
[IB Docket No. 96-111; CC Docket No. 93-23; FCC 96-210]
Satellite Application and Licensing Procedures
AGENCY: Federal Communications Commission.
ACTION: Proposed Rules.
-----------------------------------------------------------------------
SUMMARY: The Commission has proposed a uniform legal framework
permitting users in the United States greater access to satellites
licensed by other countries. In so doing, the Commission proposes to
collect certain legal, financial, and technical information from the
applicant. The Commission also proposes to eliminate its license
requirement for receive-only earth stations in the fixed satellite
service operating with U.S.-licensed space stations for the reception
of transmissions from foreign countries and allow them to voluntarily
register their stations.
DATES: Comments must be submitted on or before July 15, 1996; reply
comments must be submitted on or before August 16, 1996. Written
comments by the public on the proposed and/or modified information
collections are due July 15, 1996. OMB's Notice of Action on the
proposed and/or modified information collections must be submitted no
later than August 23, 1996.
ADDRESSES: Federal Communications Commission, 1919 M Street, N.W.,
Washington, D.C. 20554. In addition to filing comments with the
Secretary, a copy of any comments on the information collections
contained herein should be submitted to Dorothy Conway, Federal
Communications Commission, Room 234, 1919 M Street, N.W. Washington,
D.C. 20554, or via the Internet to [email protected], and to Timothy
Fain, OMB Desk Officer, 10236 NEOB, 725--17th Street, N.W. Washington,
D.C. 20503 or via the Internet to [email protected].
FOR FURTHER INFORMATION CONTACT: Paula Ford, International Bureau,
Satellite Policy Branch, (202) 418-0760; Virginia Marshall,
International Bureau, Satellite Policy Branch, (202) 418-0778; Kathleen
Campbell, International Bureau, Satellite Policy Branch (202) 418-0753.
For additional information concerning the information collection
contained in this NPRM contact Dorothy Conway at (202) 418-0217, or via
the Internet at [email protected].
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice
of Proposed Rulemaking in IB Docket No. 96-111; CC Docket No. 93-23;
FCC 96-210, adopted May 9, 1996 and released May 14, 1996. The complete
text of this Notice of Proposed Rulemaking is available for inspection
and copying during normal business hours in the FCC Reference Center
(Room 239), 1919 M Street, N.W. Washington, D.C., and also may be
purchased from the Commission's copy contractor, International
Transcription Service, (202) 857-3800, 2100 M Street, N.W., Suite 140,
Washington, D.C. 20037.
This NPRM contains proposed or modified information collections
subject to the Paperwork Reduction Act of 1995, Pub. L. No. 104-13
(PRA). It has been submitted to the Office of Management and Budget
(OMB) for review under the PRA. OMB, the general public, and other
Federal agencies are invited to comment on the proposed or modified
information collections contained in this proceeding. Comments are
requested on all aspects of the proposals. Public and agency comments
are due at the same time as other comments on this NPRM; OMB
notification of action is due no later than August 23, 1996. Comments
should address: (a) Whether the proposed collection of information is
necessary for the proper performance of the functions of the
Commission, including whether the information shall have practical
utility; (b) the accuracy of the Commission's burden estimates; (c)
ways to enhance the quality, utility, and clarity of the information
collected; and (d) ways to minimize the burden of the collection of
information on the respondents, including the use of automated
collection techniques or other forms of information technology.
Title: Amendment of the Commission's Regulatory Policies to Allow
Non-U.S.-Licensed Space Stations to Provide Domestic and International
Satellite Service in the United States and Amendment of Sec. 25.131 of
the Commission's rules and regulations to Eliminate the Licensing
Requirement for Certain International Receive-Only Earth Stations.
Form No.: FCC Form 312.
Type of Review: Revision of existing collections.
Respondents: Businesses or other for profit, including small
businesses.
Number of Respondents: 800.
Estimated Time Per Response: The Commission estimates all
respondents will hire an attorney or legal assistant to complete the
form. The time to retain these services is 2 hours per respondent.
Total Annual Burden: 1,600 hours.
Estimated Costs Per Respondent: $900. This includes the charges for
hiring an attorney or legal assistant @ 150 an hour to complete the
application. The estimated time to complete the form is 6 hours per
response.
Needs and Uses: In accordance with the Communications Act, the
information collected will be used by the Commission in evaluating
U.S.-licensed earth stations applications requesting authority to
operate with space stations licensed by other administrations. The
information will be used to determine the legal, technical, and
financial ability of the non-U.S. licensed space station to serve the
United States and will assist the Commission in determining whether
such authorization is in the public interest.
As required by section 603 of the Regulatory Flexibility Act, the
Commission has prepared an Initial Regulatory Flexibility Analysis
(IRFA) of the expected impact on small entities of the proposals
suggested in this document.
Summary of Notice of Proposed Rulemaking
1. The Commission has long pursued a procompetitive policy that
relies on the entry of as many independent service providers as
possible. In keeping with this policy, we recently allowed foreign
carriers to enter the U.S. telecommunications market to provide
international common carrier service if effective competitive
opportunities exist for U.S. carriers in the destination markets of
dominant foreign carriers seeking to enter the U.S. market. See Market
Entry and Regulation of Foreign-Affiliated Entities, 11 FCC Rcd. 3873,
60 FR 67332 (December 29, 1995). We also eliminated the distinction
between domestic and international fixed satellite services over U.S.-
licensed satellite systems allowing U.S. satellite systems to provide
domestic and/or international service. See Amendment of Commission's
Regulatory policies governing Domestic Fixed Satellites and Separate
International Satellite Systems, 11 FCC Rcd. 2429, 61 FR 09946 (March
12, 1996).
2. Similarly, this NPRM reflects the Commission's continued efforts
to promote competition in the U.S. satellite services market which, in
turn, will increase service options, lower prices, and improve quality.
With this NPRM, we propose a uniform framework for evaluating
applications by users in the United States for authority to access
satellites licensed by other countries. Under our proposed rules, non-
U.S.-licensed satellite systems will be able to provide satellite
service to, from, and within the United
[[Page 32400]]
States to the extent that foreign markets allow effective competitive
opportunities for U.S. satellite systems to provide analogous services.
Our proposal will facilitate much greater access to non-U.S.
satellites, thus benefitting users within the United States and will
encourage foreign governments to open their satellite communications
markets, thereby enhancing competition in the global market for
satellite services.
3. In implementing this policy, we will not require satellite
systems already licensed by other countries to obtain space station
licenses from the United States. Rather, we propose to permit these
systems access to the U.S. market by licensing earth stations to
operate with non-U.S. satellite systems as we have done in the past.
When reviewing applications, the Commission proposes to apply an
``effective competitive opportunities for satellites'' or ``ECO-Sat''
test to determine whether the entrance of a non-U.S. satellite system
will promote ``effective competitive opportunities'' for U.S.
satellites in foreign markets. Under the ECO-Sat test, the Commission
will determine whether there are any de jure or de facto barriers that
inhibit U.S. satellite systems from providing services similar to those
requested by the non-U.S. satellite. The Commission proposes to apply
the ECO-Sat test to determine whether U.S. fixed satellite systems have
effective competitive opportunities in: (1) The licensing jurisdiction
or ``home market'' of the foreign satellite system that seeks to serve
the United States; and (2) the ``route market'' the applicant seeks to
serve from the United States over the non-U.S. satellite. When
evaluating the entrance of a foreign mobile satellite system, we
propose to apply a modified version of the ECO-Sat test in which the
Commission would determine whether some ``critical mass'' of foreign
countries, globally or regionally, are open to U.S. satellite operators
before allowing a foreign mobile satellite system to serve the United
States.
4. We will also consider other public interest factors which may
dictate a result different from that indicated by applying the ECO-Sat
test. We may consider, with appropriate guidance from the Executive
Branch, other public interest factors including national security, law
enforcement, foreign policy, or trade issues. Issues of spectrum
availability and coordination may also be considered.
5. The Commission proposes to apply the ECO-Sat test and larger
public interest analysis when an inter-governmental organization such
as Inmarsat or Intelsat seeks to provide U.S. domestic service and when
subsidiaries, affiliates, or successors of an inter-governmental
organization seek access to the U.S. market. International service from
the U.S. is already being provided to virtually every market in the
world by Intelsat and Inmarsat and the Commission does not intend to
apply its rules retroactively. Thus, the Commission proposes to
continue licensing international communications over the Intelsat and
Inmarsat systems without applying the ECO-Sat test.
6. In addition, the Commission proposes to retain the licensing
requirement for receive-only earth stations in the fixed satellite
service that communicate with non-U.S. satellites. Retaining the
licensing requirement for these earth stations ensures that the related
radio communications conducted within the United States, are consistent
with U.S. competition and spectrum management policies. Also, we
believe it is no longer necessary to license receive-only earth
stations operating with U.S. satellite systems for the reception of
service from foreign countries. Instead, we propose that they be
subject to a voluntary registration process. Finally, in an attempt to
diminish regulatory burden and speed processing, we propose to allow
receive-only earth station applicants operating with U.S. or non-U.S.
satellites to request blanket authority to operate multiple technically
identical receive-only earth stations.
7. To ensure that the non-U.S. systems can provide service in a
fast and efficient manner, the Commission will require certain legal,
technical, and financial information concerning the non-U.S. system.
Also, to prevent interference to U.S. satellite systems and to
facilitate responsible spectrum management in the United States, we
propose to require all non-U.S. satellite systems serving the United
States to comply with the technical and reporting requirements we
impose on U.S. satellite systems.
8. This proposal is likely to enhance competition in the global
communication services marketplace, prevent anticompetitive conduct in
the provision of satellite services, and encourage foreign governments
to open their communications market.
Ordering Clauses
9. Accordingly, it is ordered that pursuant to the authority
contained in sections 1, 4(i), 303, and 308 of the Communications Act
of 1934, as amended, 47 U.S.C. 151, 154(i), 303, and 308, NPRM is
hereby given of our intent to adopt the policies and rules set forth in
this NPRM and that comment is sought on all the proposals in this NPRM.
10. It is further ordered that the Secretary shall send a copy of
this Notice of Proposed Rulemaking, including the Initial Regulatory
Flexibility Analysis, to the Chief Counsel for Advocacy of the Small
Business Administration in accordance with paragraph 603(a) of the
Regulatory Flexibility Act, Pub. L. No. 96-354, 94 Stat. 1164, 5 U.S.C.
601 et seq. (1981).
Administrative Matters
11. This is a non-restricted notice and comment rulemaking
proceeding. Ex parte presentations are permitted, except during the
Sunshine Agenda period, provided they are disclosed as provided in the
Commission's rules. See generally 47 CFR 1.1202, 1.1203, and 1.1206(a).
The Sunshine Agenda period is the period of time that commences with
the release of public notice that a matter has been placed on the
Sunshine Agenda and terminates when the Commission (1) releases the
text of a decision or order in the matter; (2) issues a public notice
stating that the matter has been deleted from the Sunshine Agenda; or
(3) issues a public notice stating that the matter has been returned to
the staff for further consideration, whichever occurs first. 47 CFR
1.1202(f). During the Sunshine Agenda period, no presentations, ex
parte or otherwise, are permitted unless specifically exempted. 47 CFR
1.1203.
12. Pursuant to applicable procedures set forth in Secs. 1.415 and
1.419 of the Commission's rules, 47 CFR 1.415 and 1.419, interested
parties may file comments on or before July 15, 1996 and reply comments
on or before August 16, 1996. To file formally in this proceeding, you
must file an original and five copies of all comments, reply comments,
and supporting comments. If you want each Commissioner to receive a
personal copy of your comments send additional copies to Office of the
Secretary, Federal Communications Commission, Washington, DC 20554.
Comments and reply comments will be available for public inspection
during regular business hours in the Federal Communications Commission,
Reference Center, Room 239, 1919 M Street, NW., Washington, DC 20554.
For further information concerning this rulemaking contact Paula Ford
at (202)418-0760 or Virginia Marshall (202)418-0778.
Initial Regulatory Flexibility Act Statement
13. As required by section 603 of the Regulatory Flexibility Act,
the Commission has prepared an Initial
[[Page 32401]]
Regulatory Flexibility Analysis (``IRFA'') of the expected impact on
small entities of the proposals suggested in this document. The IRFA is
set forth in Appendix A of the NPRM. Written public comments are
requested on the IRFA. These comments must be filed in accordance with
the same filing deadlines as comments on the rest of the NPRM, but they
must have a separate and distinct heading designating them as responses
to the Initial Regulatory Flexibility Analysis. The Secretary shall
send a copy of this NPRM, including the Initial Regulatory Flexibility
Analysis, to the Chief Counsel for Advocacy of the Small Business
Administration in accordance with paragraph 603(a) of the Regulatory
Flexibility Act, Public Law No. 96-354, 94 Stat. 1164, 5 U.S.C. 601 et
seq. (1981).
List of Subjects in 47 CFR Part 25
Satellites
Federal Communications Commission.
William F. Caton,
Acting Secretary.
Rule Changes
Part 25 of the Commission's Rules and Regulations, Chapter I of
Title 47 of the Code of Federal Regulations is proposed to be amended
as follows:
PART 25--SATELLITE COMMUNICATIONS
1. The authority citation for Part 25 continues to read as follows:
Authority: Secs. 25.101 to 25.601 issued under Sec. 4, 48 Stat.
1066, as amended; 47 U.S.C. 154. Interpret or apply secs. 101-104,
76 Stat. 419-427; 47 U.S.C. 701-744; 47 U.S.C. 554.
2. Section 25.113 is amended by revising the first sentence of
paragraph (b) to read as follows:
Sec. 25.113 Construction permits.
* * * * *
(b) Construction permits are not required for satellite earth
stations that operate with U.S.-licensed or non-U.S.-licensed space
stations. * * *
* * * * *
3. Section 25.115 is amended by revising the first sentence of
paragraph (c) to read as follows:
Sec. 25.115 Applications for earth station authorizations.
* * * * *
(c) Large Networks of Small Antennas operating in the 12/14 GHz
frequency bands with U.S.-licensed or non-U.S.-licensed satellites for
domestic services. * * *
* * * * *
4. Section 25.130 is amended by revising the first sentence of
paragraph (d) to read as follows:
Sec. 25.130 Filing requirements for transmitting earth stations.
* * * * *
(d) Transmissions of signals or programming to non-U.S.-licensed
satellites, and to and/or from foreign points by means of U.S.-licensed
fixed satellites may be subject to restrictions as a result of
international agreements or treaties. * * *
* * * * *
5. Section 25.131 is amended by revising paragraphs (b) and (j) to
read as follows:
Sec. 25.131 Filing requirements for receive-only earth stations.
* * * * *
(b) Except as provided in paragraph (j) of this section, receive-
only earth stations in the fixed-satellite service that operate with
U.S.-licensed satellites may be registered with the Commission in order
to protect them from interference from terrestrial microwave stations
in bands shared co-equally with the fixed service in accordance with
the procedures of Secs. 25.203 and 25.251-25.256.
* * * * *
(j) Receive-only earth stations operating with non-U.S.-licensed
space stations shall file an FCC Form 493 requesting a license or
modification to operate such station. Receive-only earth stations used
to receive INTELNET I service from Intelsat space stations need not
file for licenses. See Deregulation of Receive-Only Satellite Earth
Stations Operating with the INTELSAT Global Communications Satellite
System, Declaratory Ruling, RM No. 4845, FCC 86-214 (released May 19,
1986).
6. Section 25.137 is added to read as follows:
Sec. 25.137 Application requirements for earth stations operating with
non-U.S.-licensed space stations.
(a) Earth stations requesting authority to operate with a non-U.S.-
licensed space station to participate in the U.S. satellite service
market must attach an exhibit with their FCC Form 493 application with
information demonstrating that U.S.-licensed satellite systems have
effective competitive opportunities to provide analogous services in:
(1) The country in which the non-U.S.-licensed space station is
licensed; and
(2) All countries in which communications with the U.S. earth
station will originate or terminate. The applicant bears the burden of
showing that there are no de jure or legal constraints that limit or
prevent access of the U.S. satellite system in the relevant foreign
markets. The exhibit required by this paragraph must also include a
statement of why grant of the application is in the public interest.
(b) Earth stations requesting authority to operate with a non-U.S.-
licensed space station must attach to their FCC Form 493 an exhibit
providing legal, financial, and technical information for the non-U.S.-
licensed space station in accordance with this Part 25 and Part 100 of
this chapter. If the non-U.S.-licensed space station is in orbit and
operating, the applicant need not include the financial information.
(c) A non-U.S.-licensed satellite system seeking to serve the
United States can be considered contemporaneously with other U.S.
satellite systems if it is:
(1) In orbit and operating;
(2) Has a license from another administration; or
(3) Has been submitted for coordination to the International
Telecommunication Union and is pursuing a license in another
administration.
[FR Doc. 96-15857 Filed 6-21-96; 8:45 am]
BILLING CODE 6712-01-P
Complete official Federal Register PDF
FR Doc. 96-15839 Board of Contract Appeals; Procedure Rules
[Federal Register Volume 61, Number 122 (Monday, June 24, 1996)]
[Proposed Rules]
[Pages 32410-32411]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15839]
=======================================================================
-----------------------------------------------------------------------
GENERAL SERVICES ADMINISTRATION
48 CFR Part 6101
RIN 3090-AF99
Board of Contract Appeals; Procedure Rules
AGENCY: Board of Contract Appeals, General Services Administration.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This document announces the intention of the General Services
Administration Board of Contract Appeals (the Board) to issue proposed
rules to implement section 5101 of the National Defense Authorization
Act for Fiscal Year 1996 (Pub. L. 104-106) (the Act). Section 5101 of
the Act, which becomes effective August 8, 1996, eliminates the Board's
jurisdiction to hear and decide bid protests regarding procurements of
automatic data processing (ADP) equipment and services. The proposed
amendments to the Board's rules of procedure, when final, will
implement section 5101 by eliminating all references to bid protests in
those rules.
The proposed rules also described the techniques intended to
shorten and simplify, when appropriate, the formal proceedings normally
used by the Board to resolve contract disputes, and support the use of
alternative dispute resolution (ADR) in appropriate circumstances by
providing that the Board will make a Board Neutral available for an ADR
proceeding either before or after the issuance of a decision by a
contracting officer of any Government agency if a joint written request
is submitted to the Board by the parties.
The Board intends to issue final, revised rules after considering
all comments to the proposed amendments. The Board anticipates that, in
issuing revised rules, it will provide that the revisions do not apply
to protests pending on August 8, 1996, or to any motions or
applications resulting from such protests. Such cases would be governed
by the rules in effect at the time the underlying protests were filed.
DATES: Written comments must be submitted on or before July 24, 1996.
ADDRESSES: Copies of the proposed rules may be obtained from the Office
of the Clerk of the Board, GSA Board of Contract Appeals, 18th & F
Streets, N.W., Washington, DC 20405, (202)
[[Page 32411]]
500001-0116. Additionally, an electronic version of the text may be
obtained from http://www.gsa.gov/gsbca. Written comments may be mailed
to Margaret S. Pfunder, GSA Board of Contract Appeals, 18th & F
Streets, N.W., Washington, DC 20405, or sent electronically by using
the following Internet address: Margaret.P[email protected].
FOR FURTHER INFORMATION CONTACT: Margaret S. Pfunder, Deputy Chief
Counsel, GSA Board of Contract Appeals, telephone (202) 501-0272,
facsimile machine (202) 501-3510.
Dated: June 18, 1996.
Stephen M. Daniels,
Chairman.
[FR Doc. 96-15839 Filed 6-21-96; 8:45 am]
BILLING CODE 6820-34-M
Complete official Federal Register PDF
FR Doc. 96-15732 Schedule of Fees Authorized by 49 U.S.C. 30141
[Federal Register Volume 61, Number 122 (Monday, June 24, 1996)]
[Proposed Rules]
[Pages 32411-32413]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15732]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Part 594
[Docket No. 89-8; Notice 9]
RIN 2127-AG43
Schedule of Fees Authorized by 49 U.S.C. 30141
AGENCY: National Highway Traffic Safety Administration (NHTSA), DOT.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: This document proposes fees for Fiscal Year 1997 as authorized
by 49 U.S.C. 30141 relating to the registration of importers and the
importation of motor vehicles not certified as conforming to the
Federal motor vehicle safety standards (FMVSS).
NHTSA proposes that the annual fee for the registration of a new
importer be increased from $456 to $501, and the annual fee for renewal
of registration be increased from $240 to $332. The fee required to
reimburse the U.S. Customs Service for bond processing costs would
increases by $0.20, from $4.95 to $5.15 per bond.
The fee payable for a determination that nonconforming vehicles are
capable of conversion to meet the FMVSS would be increased from $104 to
$199 if the determination results from a petition arguing that the
nonconforming vehicle is substantially similar to conforming vehicles.
With respect to vehicles that have no substantially similar
counterpart, the fee rises from $520 to $721. In addition, the fee
payable by the importer of each vehicle that benefits by a
determination will be increased from $93 to $134, regardless of whether
the determination is made pursuant to a petition or by NHTSA on its own
initiative.
DATES: Comments are due August 8, 1996. The effective date of the final
rule would be October 1, 1996.
ADDRESSES: Comments should refer to Docket No. 89-8; Notice x, and be
submitted to : Docket Section, NHTSA, room 5109, 400 Seventh St., SW,
Washington, D.C. 10590. Docket hours are from 9:30 a.m. to 4:00 p.m.
FOR FURTHER INFORMATION CONTACT: George Entwistle, Office of Vehicle
Safety Compliance, Office of Safety Assurance, NHTSA (202-366-5306).
SUPPLEMENTARY INFORMATION:
Introduction
On September 29, 1989, NHTSA issued 49 CFR part 594, establishing
the initial fees authorized by section 108 of the National Traffic and
Motor Vehicle Safety Act, as amended by the Imported Vehicle Safety
Compliance Act of 1988, Pub. L. 100-562 (54 FR 40100). These fees were
applicable in Fiscal Year 1990 (FY90). 49 U.S.C. 30141(e) (formerly 15
U.S.C. 1397(c)(3)(B)) provides that the amount or rate of fees shall be
reviewed and, if appropriate, adjusted at least every 2 years. Further,
the fees applicable in any fiscal year shall be established before the
beginning of such year. The statute authorizes an annual fee to cover
the costs of the importer registration program, an annual fee or fees
to cover the cost of making import eligibility determinations, and an
annual fee or fees to cover the cost of processing the bond furnished
to the Customs Service.
In accordance with the statutory requirements, NHTSA reviewed and
adjusted fees for FY91 (55 FR 40664), for FY92-93 (56 FR 49427), and FY
94-96 (58 FR 51021).
As a general statement applicable to consideration of all fees,
there has been a slight increase in hourly costs in the past three
fiscal years attributable to the approximately 2 percent raise in
salaries of employees on the General Schedule that became effective on
January 1 in the years 1995, and 1996 (there was a locality raise only
in 1994).
Requirements of the Fee Regulation
Section 594.6--Annual Fee for Administration of the Importer
Registration Program
Section 30141(a)(3) of Title 49 U.S.C. provides that registered
importers must pay ``the annual fee the Secretary of Transportation
establishes * * * to pay for the costs of carrying out the registration
program for importers * * *.'' The annual fee attributable to the
registration program is payable both by new applicants and by
registered importers seeking to renew their registration. The reader is
referred to the notice of September 29, 1989, for a fuller discussion
of the fee and its components.
In accordance with the statutory directive, NHTSA reviewed the
existing fees and their bases in an attempt to establish appropriate
fees for at least the next fiscal year which would be sufficient to
recover the costs of carrying out the registration program for
importers. The initial component of the Registration Program Fee is the
portion of the fee attributable to processing and action upon
registration applications. The agency has determined that this portion
of the fee should be decreased from $356 to $301 for new applications,
and increased from $100 to $132 for renewals. The higher initial cost
is warranted because the average cost of processing a new application
is substantially greater than that of its renewal.
Other costs attributable to maintenance of the registration program
arise from reviewing a registrant's annual statement and verifying the
continuing validity of information already submitted. These costs also
include costs attributable to revocation or suspension of a
registration.
The total portion of the fee attributable to maintenance of the
registration program as estimated by NHTSA is approximately $200, an
increase of $100. This reflects the fact that costs have been incurred
for processing suspensions or revocations. When this $200 is added to
the $301 representing the registration application component, the cost
to an applicant equals $501, and is the fee proposed by NHTSA. It
represents an increase of $45. When the $200 is added to the $132
representing the renewal component, the cost to a renewing registered
importer would be $332. This fee increase is also proposed. It
represents an increase of $92.
Sec. 564.6(h) recounts indirect costs that have been estimated at
$6.71 per man-hour. This would be raised to $7.07 under the proposal.
Sections 594.7, 594.8--Fees to Cover Agency Costs in Making Importation
Eligibility Determinations
Section 30141(a)(3) also requires registered importers to pay
``other fees the Secretary of Transportation establishes to pay for the
costs of * * * (B) making the decisions under this subchapter.''
Pursuant to part 593, these
[[Page 32412]]
decisions are whether the vehicle sought to be imported is
substantially similar to a motor vehicle originally manufactured for
import into and sale in the United States, and certified as meeting the
FMVSS, and whether it is capable of being readily altered to meet those
standards. Alternatively, where there is no substantially similar U.S.
motor vehicle, the decision is whether the safety features of the
vehicle comply with or are capable of being altered to comply with the
FMVSS. These decisions are made in response to petitions submitted by
registered importers or manufacturers, or pursuant to the
Administrator's initiative. Because a substantially different procedure
was adopted for the second year of this program, FY91, the reader is
referred to the notice appearing at 55 FR 40664 for a fuller discussion
of the cost factors of such determinations.
For FY94-96, NHTSA continued the restructured fee schedule that was
adopted for FY91. Under the restructuring, which continues in effect,
the fee for a vehicle imported under a decision made on the agency's
initiative is payable by the importer of any vehicle covered by that
decision. The fee for a vehicle imported under a decision pursuant to a
petition is payable in part by the petitioner and in part by importers.
However, the fee to be charged for a vehicle is a pro rata share of the
costs in making all the eligibility determinations in the fiscal year.
The fees that were adopted in FY91 were retained unchanged for FY92
and FY93; the fees adopted for FY94 were retained unchanged for FY95
and FY96. As the agency noted in the final rule adopting the fees for
FY94, only one petition had been granted for a vehicle which is not
``substantially similar'' to a certified model, and there was not yet
an average cost figure for this category. Since that time, at least
half a dozen other petitions have been received and NHTSA has found
that these require noticeably more analysis and, at times, further
correspondence with the petitioner in order to have a sufficient data
to reach a decision.
Inflation and the small raises under the General Schedule also must
be taken into count in the computation of costs.
Accordingly, NHTSA proposes that there be an increase from $104 to
$199 in the fee required to accompany a ``substantially similar''
petition, and from $520 to $721 for petitions for vehicles that are not
substantially similar and that have no certified counterpart. In the
event that a petition requests an inspection of a vehicle, under each
petition, that fee will remain at $550.
The importer of each vehicle covered by a petition currently must
pay $93 upon its importation, the same fee applicable to those whose
vehicles covered by a determination on the agency's initiative (other
than Canadian vehicles covered by code VSA-1). This fee would be
increased to $134, based upon an increase in administrative costs.
The fee for inspection of a vehicle to verify its conformance
status would remain unchanged.
Section 594.9--Fee To Recover the Costs of Processing the Bond
Section 30141(a)(3) also requires a registered importer to pay
``any other fees the Secretary of Transportation establishes * * * to
pay for the costs of- (A) processing bonds provided to the Secretary of
the Treasury'' upon the importation of a nonconforming vehicle to
ensure that the vehicle will be brought into compliance within a
reasonable time or if the vehicle is not brought into compliance within
such time, that it is exported, without cost to the United States, or
abandoned to the United States.
The statute contemplates that NHTSA make a reasonable determination
of the cost for the United States Customs Service of processing the
bond. In essence, the cost to Customs is based upon an estimate of the
time that a GS 9 Step 5 employee spends on each entry, which was judged
to be 20 minutes. For a fuller discussion of these costs, the reader is
again referred to prior notices of Docket 89-8.
Because of the modest salary and locality raises in the General
Schedule that were effective at the beginning of 1994, 1995, and 1996,
NHTSA proposes that the current processing fee be increased by $0.20,
from $4.95 per bond to $5.15.
Effective Date
The effective date of the final rule would be October 1, 1996.
Rulemaking Analyses
A. Executive Order 12866 and DOT Regulatory Policies and Procedures
This rulemaking action was not reviewed under Executive Order
12886. Further, NHTSA has determined that the action is not significant
under Department of Transportation regulatory policies and procedures.
NHTSA currently anticipates that the costs of the final rule would be
so minimal as not to warrant preparation of a full regulatory
evaluation. The action does not involve any substantial public interest
or controversy. There is no substantial effect upon State and local
governments. There is no substantial impact upon a major transportation
safety program. Both the number of registered importers and
determinations are estimated to be comparatively small. A regulatory
evaluation analyzing the economic impact of the final rule adopted on
September 29, 1989, was prepared, and is available for review in the
docket.
B. Regulatory Flexibility Act
The agency has also considered the effects of this action in
relation to the Regulatory Flexibility Act. I certify that this action
will not have a substantial economic impact upon a substantial number
of small entities. Although entities that currently modify
nonconforming vehicles are small businesses within the meaning of the
Regulatory Flexibility Act, the agency has no reason to believe that a
substantial number of these companies could not pay the fees proposed
by this action which would be only modestly increased from those now
being paid, and which can be recouped through their customers. The cost
to owners or purchasers of altering nonconforming vehicles to conform
with the FMVSS may be expected to increase to the extent necessary to
reimburse the registered importer for the fees payable to the agency
for the cost of carrying out the registration program and making
eligibility decisions, and to compensate Customs for its bond
processing costs. Governmental jurisdictions will not be affected at
all since they are generally neither importers nor purchasers of
nonconforming motor vehicles.
C. Executive Order 12612 (Federalism)
The agency has analyzed this action in accordance with the
principles and criteria contained in Executive Order 12612
``Federalism'' and determined that the action does not have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment.
D. National Environmental Policy Act
NHTSA has analyzed this action for purposes of the National
Environmental Policy Act. The action will not have a significant effect
upon the environment because it is anticipated that the annual volume
of motor vehicles imported through registered importers will not vary
significantly from that existing before promulgation of the rule.
E. Civil Justice
This rule will not have any retroactive effect. Under 49 U.S.C.
30103(b),
[[Page 32413]]
whenever a Federal motor vehicle safety standard is in effect, a state
may not adopt or maintain a safety standard applicable to the same
aspect of performance which is not identical to the Federal standard.
Section 30161 sets forth a procedure for judicial review of final rules
establishing, amending or revoking Federal motor vehicle safety
standards. That section does not require submission of a petition for
reconsideration or other administrative proceedings before parties may
file suit in court.
Request for Comments
Interested persons are invited to submit comments on the proposal.
It is requested but not required that 10 copies be submitted.
All comments must not exceed 15 pages in length (49 CFR 553.21).
Necessary attachments may be appended to these submissions without
regard to the 15-page limit. This limitation is intended to encourage
commenters to detail their primary arguments in a concise fashion.
If a commenter wishes to submit certain information under a claim
of confidentiality, three copies of the complete submission including
purportedly confidential business information, should be submitted to
the Chief Counsel, NHTSA, at the street address given above, and seven
copies from which the purportedly confidential information has been
deleted should be submitted to the Docket Section. A request for
confidentiality should be submitted accompanied by a cover letter
setting forth the information specified in the agency's confidential
business information regulation, 49 CFR Part 512.
All comments received on or before the closing date indicated above
for the proposal will be considered, and will be available for
examination in the docket at the above address both before and after
that date. To the extent possible, comments filed after the closing
date will also be considered. Comments received too late for
consideration in regard to the final rule will be considered as
suggestions for further rulemaking action. It is recommended that
interested persons continue to examine the docket for new material.
Those persons desiring to be notified upon receipt of their
comments in the docket must enclose a self-addressed stamped postcard
in the envelope with their comments. Upon receiving the comments, the
docket supervisor will return the postcard by mail.
List of Subjects in 49 CFR Part 594
Imports, Motor vehicle safety, Motor vehicles.
In consideration of the foregoing, it is proposed that 49 CFR part
594 be amended as follows:
1. The authority citation for part 594 would be revised to read as
follows:
Authority: 49 U.S.C. 30141, 30166; delegation of authority at 49
CFR 1.50.
2. The title of part 594 would be changed to read as follows:
PART 594--SCHEDULE OF FEES AUTHORIZED BY 49 U.S.C. 30141
3. Section 594.1 would be revised to read as follows:
Sec. 594.1 Scope.
This part establishes the fees authorized by 49 U.S.C. 30141.
4. Section 594.4 would be amended by revising its introductory
paragraph to read as follows:
Sec. 594.4 Definitions.
All terms used in this part that are defined in 49 U.S.C. 30102 are
used as defined in that section.
* * * * *
5. Section 594.6 would be amended by;
(a) changing the year ``1993'' in paragraphs (d) and to read
``1996,'' and
(b) revising the introductory language in paragraph (a), (c)
revising paragraph (b),
(c) revising the final sentence of paragraph (h); and
(d) revising paragraph (i)
to read as follows:
Sec. 594.6 Annual fee for administration of the registration program.
(a) Each person filing an application to be granted the status of a
Registered Importer pursuant to part 592 of this chapter on or after
October 1, 1996, shall pay an annual fee of $501, as calculated below,
based upon the direct and indirect costs attributable to: * * *
* * * * *
(b) That portion of the initial annual fee attributable to the
processing of the application for applications file on and after
October 1, 1996, is $301. The sum of $301, representing this portion,
shall not be refundable if the application is denied or withdrawn.
* * * * *
(h) * * * This cost is $7.07 per man-hour for the period beginning
October 1, 1996.
(i) Based upon the elements, and indirect costs of paragraphs (f),
(g), and (h) of this section, the component of the initial annual fee
attributable to administration of the registration program, covering
the period beginning October 1, 1996, is $200. When added to the costs
of registration of $301, as set forth in paragraph (b) of this section,
the costs per applicant to be recovered through the annual fee are
$501. The annual renewal registration fee for the period beginning
October 1, 1996, is $332.
6. Section 594.7 would be amended by revising the first two
sentences of paragraph (e) to read as follows:
Sec. 594.7 Fee for filing petition for a determination whether a
vehicle is eligible for importation.
* * * * *
(e) For petitions filed on and after October 1, 1996, the fee
payable for a petition seeking a determination under paragraph (a)(1)
of this section is $199. The fee payable for a petition seeking a
determination under paragraph (a)(2) of this section is $721. * * *
* * * * *
7. Section 594.8 would be amended by revising the first sentence in
paragraph (b) and in paragraph (c) to read as follows:
Sec. 594.8 Fee for importing a vehicle pursuant to a determination by
the Administrator.
* * * * *
(b) If a determination has been made pursuant to a petition, the
fee for each vehicle is $134. * * *
(c) If a determination has been made pursuant to the
Administrator's initiative, the fee for each vehicle is $134. * * *
8. Section 594.9(c) would be revised to read as follows:
Sec. 594.9 Fee for reimbursement of bond processing costs.
* * * * *
(c) The bond processing fee for each vehicle imported on and after
October 1, 1996, for which a certificate of conformity is furnished, is
$5.15.
Issued on: June 14, 1996.
Michael B. Brownlee,
Associate Administrator for Safety Assurance.
[FR Doc. 96-15732 Filed 6-21-96; 8:45 am]
BILLING CODE 4910-59-P
Complete official Federal Register PDF
FR Doc. 96-15403 Federal Employees Health Benefits Program Acquisition Regulation; Truth in Negotiations Act and Related Changes
[Federal Register Volume 61, Number 122 (Monday, June 24, 1996)]
[Proposed Rules]
[Pages 32401-32410]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15403]
=======================================================================
-----------------------------------------------------------------------
OFFICE OF PERSONNEL MANAGEMENT
48 CFR Parts 1602, 1604, 1615, 1616, 1622, 1631, 1644, 1652, and
1653
RIN 3206-AH45
Federal Employees Health Benefits Program Acquisition Regulation;
Truth in Negotiations Act and Related Changes
AGENCY: Office of Personnel Management.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Office of Personnel Management (OPM) is issuing a proposed
regulation that would amend the Federal Employees Health Benefits
Acquisition Regulation (FEHBAR) to implement those portions of the
Federal Acquisition Streamlining Act of 1994 (FASA) that impact on the
FEHB Program.
DATES: Comments must be received on or before July 24, 1996.
ADDRESSES: Written comments may be sent to Lucretia F. Myers, Assistant
Director for Insurance Programs, Retirement and Insurance Service,
Office of Personnel Management, P.O.
[[Page 32402]]
Box 57, Washington, DC 20044; delivered to OPM, Room 3451, 1900 E
Street NW., Washington, DC.; or FAXed to (202) 606-0633.
FOR FURTHER INFORMATION CONTACT: Mary Ann Mercer, (202) 606-0004.
SUPPLEMENTARY INFORMATION: The Federal Acquisition Streamlining Act of
1994 (FASA), Public Law 103-355, effective October 13, 1994, amends
Section 304A of the Truth in Negotiations Act (TINA) by increasing the
threshold for Federal contractors and subcontractors submitting cost or
pricing data from $100,000 to $500,000. FASA also amends other
provisions of TINA affecting the submission of cost or pricing data.
This proposed regulation would amend the FEHBAR to conform to FASA
by:
Increasing the threshold for the submission of certified
cost or pricing data for FEHB Program community rated contracts, and
for the submission of certified cost or pricing data for FEHB Program
experience rated contracts, subcontracts, and contract modifications,
from $100,000 to $500,000;
Ensuring uniform treatment of cost or pricing data as
intended by FASA; and,
Conforming the FEHBAR to these and other FASA changes.
Effect of FASA on Community Rated Contracts
A number of changes made by FASA and the implementing Federal
Acquisition Regulation (FAR) provisions impact on the way OPM has
treated FEHB Program community rated contracts in the past,
specifically with regard to contract type and establishing the
reasonableness of the carriers' rates. For example, TINA provides for
special exceptions to the submission of cost or pricing data for
contracts based on adequate price competition, contracts based on
established catalog or market price of commercial items, and contracts
for which prices are set by law or regulation.
FEHB Program contracts do not have price competition because the
contracts are not subject to the competitive bidding requirements of
Title 41 of the United States Code; nor are prices set by law or
regulation. However, the FEHBAR identifies community rated contracts as
contracts based on established market price. Under TINA, the
contracting officer may not require a contractor to submit cost or
pricing data for contracts based on established market prices of
commercial items sold in substantial quantities to the general public.
The FAR clarifies the standards for determining an established
market price [48 CFR 15.804-1(b)(1)(ii)] and the definitions of
commercial items [48 CFR Part 12] and cost or pricing data [48 CFR
15.801]. As a result of these clarifications, we reevaluated our
treatment of community rated contracts, as well as the entire process
by which we require cost or pricing data, and the definitions of terms
in the FEHBAR.
The FEHBAR has, since it was initially published, provided that
community rated contracts are based on established market price. OPM
has deemed community rated contracts to be based on market price in the
past in an attempt to fit them neatly into a standard FAR
classification. However, after reevaluating the concept of established
market price, we do not believe that it really reflects the way in
which community rates are established; nor do we believe the contracts
can be considered contracts for commercial items or services.
Contrary to what many outside the health insurance industry
believe, a community rate is not a single rate that an HMO (also known
as a ``comprehensive medical plan'' or ``CMP'') charges all of its
groups. The theory and practice of community rating has always been
complex. In 1988, the enactment of the Health Maintenance Organization
(HMO) Amendments of 1988 made community rating even more complicated.
The HMO Amendments of 1988 authorized community rated plans to use a
new rating method called ``Adjusted Community Rating.'' In spite of its
name, ACR is actually a form of experience rating (prospective
experience rating). The HMO Amendments of 1988 so radically altered the
traditional concept of community rating that it is no longer
appropriate to call the community rate a ``market price'' as that term
is intended to apply to Federal procurement.
In carrying out its responsibility under the FEHB Program's
statutory mandate to ensure that the FEHB Program premium rates
``reasonably and equitably reflect the cost of the benefits provided''
[5 U.S.C. 8902(i)], OPM requires cost or pricing data. Cost or pricing
data is fundamental to the development of the FEHB Program premium
rate. The primary purpose of cost or pricing data as it relates to FEHB
Program contracts is to determine whether the rating method used for
the FEHB Program is consistent with the rating methods used for the
carrier's two similarly sized subscriber groups (SSSGs). For example,
if the rate for an SSSG is based on experience, if it incorporates
claims and administrative cost loadings, or any combination of these
and other elements, OPM verifies that the carrier has used the same
methodology for the FEHB Program rate. In addition, there are a
multiplicity of requirements specific to the FEHB Program group that
differentiate the needs of our Program from a carrier's other clients
and for which we require cost or pricing data: physical therapy,
infertility, prescription drugs, heart transplants, coverage for
newborns on self-only enrollments, and no coinsurance, to name a few.
While the FEHB Program premium rates are price driven, competition
in the FEHB Program is not based on price, as it is with competitively
bid procurements. In the FEHB Program, competition is based on the
employees' choice of health plans, considering their personal health
care needs. The only way OPM can ensure price reasonableness in lieu of
price competition is through obtaining cost or pricing data. Without
cost or pricing data, OPM would be unable to ensure a fair and
reasonable premium rate for Federal enrollees. The practice of asking
for this cost or pricing data is widely accepted in the insurance
industry. Although we have required this data for over 20 years, no
FEHB Program carrier has advised us that it was burdensome.
For a number of years, OPM has been trying to determine the best
way to apply the FAR cost and pricing requirements. We have tried to
learn from our experience and understand how we might apply the FAR
requirements to community rated contracts, while remaining in
compliance with the FEHB law. We have modified our acquisition
regulations on a number of occasions in an attempt to achieve the most
appropriate implementation of the FAR, given the unique features of
community rated health benefits contracts, as compared to the more
common types of contracts entered into by Federal agencies. While we
have in the past defined FEHB Program community rated contracts as
contracts based on established market price and classified them as
fixed price with economic price adjustment, we have consistently asked
for cost or pricing data because of our statutory mandate to ensure
that rates reasonably and equitably reflect the benefits provided.
In view of the above, and after evaluating the revised definitions
and cost and pricing data requirements pursuant to FASA and case law,
we have concluded that the determination that community rated contracts
are based on established market price is no
[[Page 32403]]
longer appropriate and fails to meet our current requirements.
Similarly, the exemption of FEHB Program contracts from competitive
bidding requirements, the fact that the health services under community
rated contracts are not commercial services, and the fact that FEHB
premiums are not set by law or regulation have caused OPM to conclude
that none of the FAR exceptions to the submission of cost or pricing
data contained in FAR 15.804-1 apply to the community rated contracts.
Accordingly, the cost or pricing provisions of FASA are applicable.
To clarify any perceived incongruity and inconsistency between the
FEHBAR, the FAR, and FASA, we are withdrawing our determination that
the community rated contracts are based on established market price,
and we will more closely follow the cost and pricing data requirements
in the FAR. Community rated contracts in reality fit neither of the two
categories of negotiated contracts provided in the FAR, that is, fixed
price and cost reimbursement. Given all the relevant information, we
have made a determination to classify community rated contracts simply
as ``negotiated benefits contracts.''
We are also clarifying an anomaly in the FEHBAR regarding cost or
pricing data on which community rated carriers justify their community
rate. The capitation rates, utilization and trend data, and other
information that we require from health benefits carriers are not
traditional cost or pricing data used in the more common types of
Government contracting. Traditional cost and pricing data consists of
costs for raw materials and for processing, such as, hours worked,
overtime rates, and unit costs.
FASA states that cost or pricing data are all the facts that a
prudent buyer or seller would reasonably expect to affect price
negotiations significantly. The term does not include information that
is judgmental, but does include the factual information from which a
judgment was derived. In the FEHB Program, we must obtain factual and
verifiable pricing data that can be reasonably expected to contribute
to the soundness of estimates of future costs and to the validity of
determinations of costs already incurred in order to set a fair and
reasonable premium rate for FEHB Program enrollees. We consider the
specialized rating data used by carriers in computing a rate that is
appropriate for the Federal group and the similarly sized subscriber
groups (SSSGs) to be relevant cost and pricing data for the FEHB
Program contracts. Such data includes, but is not limited to,
capitation rates; utilization data for prescription drug, hospital, and
office visit benefits utilization; trend data; rating methodologies for
other groups; standardized presentation of the plan's rating method
(age, sex, etc.) showing that the factor predicts utilization; tiered
rates information; ``step-up'' factors information; demographics such
as family size; special benefit loading capitations; and adjustment
factors for capitation.
OPM's approach over the years has simply been an attempt to fit the
community rated contracts into the context of the FAR and utilize the
provisions of the FAR requiring cost or pricing data. OPM has modified
the FEHBAR in this area over time, and at this point we have concluded
that we should define in regulation ``cost or pricing data'' as it
relates to FEHB Program contracts. OPM will not burden carriers with
new FEHBAR requirements related to cost or pricing data. We intend to
follow the requirements of the FAR. To clarify unequivocally that FEHB
Program community rated carriers must comply with the FASA cost and
pricing provisions, the regulation specifically defines the data that
OPM requires for community rated contracts of $500,000 and over as
``cost and pricing data.''
Further, the regulation classifies the community rated plans into
two categories, large and small, with the number of enrollee contracts
distinguishing the categories. However, because FASA sets a threshold
of $500,000 for collecting cost or pricing data, there are two types of
small plans.
Small Plans
(a) Plans having less than 1500 enrollee contracts at the time of
the rate proposal and whose FEHBP premiums are less than $500,000 for
the contract term.
(b) Plans having less than 1500 enrollee contracts at the time of
the rate proposal and whose FEHBP premiums are $500,000 or more for the
contract term.
Large Plans
Plans having 1500 or more enrollee contracts at the time of the
rate proposal and whose FEHBP premiums are $500,000 or more for the
contract term.
The regulation provides that the amount and nature of the back-up
documentation for small plan rate proposals differs from the large plan
requirements. All carriers must derive their Federal group rates
according to OPM community rating principles. Under FASA, OPM cannot
require community rated carriers with FEHBP contracts in which the
income from the Federal group will be under $500,000 to submit cost or
pricing data, although they may submit it voluntarily. Carriers with
small plans in which the Federal group income is less than $500,000
must submit only a rate proposal and abbreviated utilization data for
the applicable contract year. Since carriers of small plans having
fewer than 1,500 enrollee contracts will not submit detailed
documentation, OPM will evaluate the proposed rates by performing a
basic reasonableness test on the information submitted. Rates failing
this test will be subject to further review.
Carriers with small plans in which the Federal group income is
$500,000 or more must submit cost or pricing data consisting of a rate
proposal, a certificate of accurate pricing, and utilization data for
the applicable contract year. These carriers must complete proposed
net-to-carrier rate sheets and the community rate questionnaire and
keep them on file for OPM review. The OPM auditors will examine the
documents during plan audits, and OPM may also periodically review the
documents. OPM will evaluate the proposed rates by performing a basic
reasonableness test on the information submitted.
Large plan carriers must submit proposed net-to-carrier rate
sheets, certificate of accurate pricing, community rate questionnaire,
and detailed utilization data. OPM will evaluate the information for
consistency with the requirements of 48 CFR Chapter 16 (FEHBAR).
All contracts for $500,000 or more will be subject to the interest
and penalty assessments for defective rates enacted by FASA. Consistent
with FASA and FEHBAR 1652.215-70, OPM will assess simple interest using
the quarterly rate determinations by the Secretary of the Treasury
under the authority of 26 U.S.C. 6621(a)(2).
Effect of FASA on Experience Rated Contracts
OPM has determined that cost or pricing data are required for FEHB
Program experience rated contracts in which the income from the Federal
group will be $500,000 or more. Cost or pricing data are also required
for FEHB Program negotiated subcontracts at any tier, if the contractor
and each higher tier subcontractor were required to furnish cost or
pricing data, as well as for the modification of any FEHB Program
contract (whether or not cost or pricing data were initially required)
or subcontracts if the subcontractor was
[[Page 32404]]
required to submit cost or pricing data, if the subcontract or
modification will equal or exceed $500,000.
Cost or pricing data for experience rated plans includes
information such as claims data; actual or negotiated benefits payments
made to providers of medical services for the provision of health care
such as capitation not adjusted for specific groups, per diems, and
Diagnostic Related Group (DRG) payments; cost data; utilization data;
actuarial estimates; and administrative expenses and retentions.
All contracts for $500,000 or more will be subject to the interest
and penalty assessments for defective rates enacted by FASA.
In the past, we have classified experience rated contracts as a
combination of negotiated fixed-price contracts with provisions for a
form of retroactive price redetermination. Like community rated
contracts, experience rated contracts do not fit either of the two
categories of negotiated contracts provided in the FAR (fixed price and
cost reimbursement). Therefore, for consistency, we have decided to use
the same contract type for all FEHBP contracts. Thus, the regulation
provides that both community rated and experience rated contracts will
be ``negotiated benefits contracts.'' This is a change in terminology
only. OPM has added no new requirements or clauses as a result of this
change in terminology. For experience rated contracts, we will continue
to use FAR provisions applicable to cost analysis; and for community
rated contracts, we will continue to use FAR provisions applicable to
price analysis. We will continue to apply the cost principles in FAR
Part 31 to experience rated contracts.
Miscellaneous Changes
Clarification of SSSGs
We have made a number of clarifications to the definition of SSSGs
[1602.170-12]. The regulation is intended to describe the methodology
OPM uses. Specific instructions on SSSGs will be included in the annual
FEHB Program rate instructions to community rated carriers.
We have clarified how OPM determines which SSSGs it will select as
a basis for determining the FEHBP rate. Specifically, after reviewing
the rating methods used for the SSSGs to determine whether the rating
method the carrier used for the FEHBP is appropriate, OPM determines
the FEHBP rate on the basis of the lower of the rates produced by
applying--to the FEHB Program--rating methods consistant with those
used for the SSSGs.
In addition, we have clarified that any group with which a carrier
enters into an agreement to provide health care services must be
considered as a potential SSSG, and we have listed examples of groups
that the carrier may not consider as SSSGs. For example, while health
care purchasing alliances must be considered as potential SSSGs, OPM
will not consider purchasing alliances mandated by state or local
government which restrict membership to groups of less than 100
employees as SSSGs. OPM excludes groups from the SSSG pool based solely
on the types of alliances.
We have also clarified that groups having multi-year contracts are
potential SSSGs. Therefore, in selecting SSSGs, the duration of the
contract term is not a factor. OPM will look at the rate year by year
in determining the rate that will be applicable to the FEHB group.
These additions to the regulations are simply clarifications.
Although OPM's requirements for SSSGs have not changed, as practices
within the insurance industry have evolved we find it necessary to
clarify our treatment of SSSGs so that there will be no question as to
OPM's intent. The annual FEHB Program rate instructions incorporate
these requirements; however, we have placed them in regulation because
there appears to be confusion on the part of some of the carriers, and
we wanted to clear up any misunderstanding.
The SSSG clarifications in Sec. 1602.170-12 of the regulation will
be applicable for the rate instructions for the 1998 contract year.
Contract Clauses
Because of the many changes to the FAR brought about by FASA, we
have found it necessary to amend a number of FEHBAR clauses and certain
references to FAR clauses listed in the FEHBAR Clause Matrix [FEHBAR
Part 1652.3]. We have also made a number of editorial changes to the
Matrix and conforming changes to the applicable FAR clauses listed in
Part 1652. For clarity of presentation, we have reproduced the entire
Matrix. The changes are discussed below.
We have amended the Clause Matrix in Part 1652.3 to: 1) Add FAR
clause 52.242-3, Penalties for Unallowable Costs, as a result of FASA;
and, 2) Drop the following FAR clauses deleted by FASA: Sec. 52.203-1,
Officials Not to Benefit; Sec. 52.215-1, Examination of Records by
Comptroller General; Sec. 52.219-13, Utilization of Women-Owned Small
Businesses; and Sec. 52.220-3, Utilization of Labor Surplus Area
Concerns.
The names of the following FAR clauses have been changed to conform
to FASA: Sec. 52.215-2, Audit & Records--Negotiation; and Sec. 52.219-
8, Utilization of Small, Small Disadvantaged and Women-Owned Small
Business Concerns. FEHBAR clause 1652.204-70, ``Contractor Records
Retention,'' has been changed to reflect FASA threshold and reference
changes.
We have added Sec. 1652.204-72, Filing Health Benefit Claims/Court
Review of Disputed Claims to the Matrix to conform to OPM's regulation
change of March 29, 1995 [60 FR 16037].
In light of our new understanding brought about by FASA, we have
reconsidered the application of the FAR cost or pricing data clauses in
FAR section 52.215. We have decided to discontinue using FAR 52.215-23,
Price Reduction For Defective Cost Or Pricing Data--Modifications, and
will rely solely on FEHBAR 1652.215-70, Price Reduction for Defective
Pricing or Defective Cost or Pricing Data. FEHBAR 1652.215-70 captures
all of the defective cost or pricing data elements of the FAR and FASA
as they relate to the FEHB Program. Accordingly, there will be only one
clause on defective cost or pricing data applicable to community rated
contracts.
We have dropped the requirement for the following FAR clauses for
community rated carriers: Sec. 52.215-25, Subcontractor Cost or Pricing
Data--Modifications, Sec. 52.244-5, Competition in Subcontracting,
Sec. 1652.244-70, Subcontracts. These clauses have no practical
application for community rated carriers. Subcontracts negotiated by
community rated carriers generally are applicable to a community of
participants. Any cost for subcontracts is generally factored into the
rates of all the carrier's employer groups and cannot be split out for
any single employer group.
We have added novation and change of name to the list of events in
the Notice of Significant Events clause at Sec. 1652.222-70. While the
list of events in the clause is not exhaustive, OPM considers a
novation or change of name sufficiently important to include on the
list of events that might reasonably be expected to have a material
effect upon the carrier's ability to meet its obligations under the
contract.
We have amended Sec. 1644.170, Policy for FEHBP Subcontracting
Consent, by stating that the clause applies to subcontracts or
modifications to subcontracts when the amount charged against the
contract exceeds $100,000 and is 25% of the total cost of the
[[Page 32405]]
subcontract. The inclusion of the 25% requirement makes the policy
statement consistent with OPM's long-established practice and conforms
to the contract clause at Sec. 1652.244-70.
We have changed the method, frequency, and rate of calculating
interest in FEHBAR clause 1652.215-71, Investment Income, to simple
interest on lost investment income at the quarterly rate determined by
the Secretary of the Treasury under the authority of 16 U.S.C.
6621(a)(2) to make it consistent with the treatment of interest under
Sec. 1652.215-70, Rate Reduction for Defective Pricing or Defective
Cost or Pricing Data.
We have dropped the applicability of the following clauses to
community rated contracts because they apply only to contracts based on
cost analysis: Sec. 52.215-27, Termination of Defined Benefit Pension
Plans; Sec. 52.215-39, Reversion or Adjustment of Plans for
Postretirement Benefits Other Than Pensions (PRB); Sec. 1652.232-71,
Payments--Contracts With Letter of Credit Payment Arrangements.
We have dropped the application of Sec. 1652.232-70, Payments--
Contracts Without Letter of Credit Payment Arrangements, to experience
rated contracts because it applies only to contracts based on price
analysis. In addition, we have dropped the application of
Sec. 1652.232-71, Payments--Contracts with Letter of Credit Payment
Arrangements, to community rated contracts because it applies only to
contracts based on cost analysis.
FEHBAR 1652.216-70, Accounting and Price Adjustment has been
amended to delete references to market price and to accommodate new
industry trends in community rating.
In keeping with the spirit of the FAR, OPM is adopting FAR 52.222-
21, Certification of Nonsegregated Facilities, and FAR 52.222-25,
Affirmative Action Compliance for the FEHB Program. A technical change
has been made to the clauses to replace the word ``offeror'' with the
word ``contractor'' to reflect the fact that the statutory provisions
of 5 U.S.C. chapter 89 obviate the issuance of solicitations.
We have added the following clauses because we have determined that
they are applicable to FEHB Program contracts: Sec. 52.222-37,
Employment Reports on Special Disabled Veterans and Veterans of the
Vietnam Era; Sec. 52.227-1, Authorization and Consent; Sec. 52.227-2,
Notice and Assistance Regarding Patent and Copyright Infringement;
Sec. 52.232-28, Electronic Funds Transfer Payment Methods.
To conform with FEHBAR 1632.617, we have indicated in the Matrix
that FAR 52.232-17, Interest, applies to experience rated contracts as
well as to community rated contracts.
We have deleted the FAR clause dates in FEHBAR 1652.000. FAR
clauses become outdated over time and, if the FAR clause dates are
contained in the FEHBAR, OPM must continually revise the FEHBAR to keep
it up-to-date. It has always been OPM's intent to apply to the
contracts the most current FAR clause in effect at the beginning of
each contract term. The FAR clause dates will continue to be included
in the contract so that there will be no question as to which FAR
clause version is applicable.
Three FEHBAR clause dates have been added in Subpart 1652.2 because
they had been inadvertently omitted. The clauses are Sec. 1652.232-70,
Payments--community rated contracts, Sec. 1652.232-71, Payments--
experience rated contracts, and Sec. 1652.204-72, Filing Health Benefit
Claims/Court Review of Disputed Claims.
OPM has also updated a number of references in the proposed
regulation.
Regulatory Flexibility Act
I certify that this regulation will not have a significant economic
impact on a substantial number of small entities because all of the
small plan FEHB Program contracts fall below the threshold for
submitting cost or pricing data.
List of Subjects in 48 CFR Parts 1602, 1604, 1615, 1616, 1622, 1631,
1644, 1652, and 1653
Administrative practice and procedure, Government employees, Health
facilities, Health insurance, Health professions, Hostages, Iraq,
Kuwait, Lebanon, Reporting and recordkeeping requirements, Retirement.
Office of Personnel Management.
James B. King,
Director.
Accordingly, OPM is proposing to amend Chapter 16 of Title 48, Code
of Federal Regulations, as follows:
CHAPTER 16--OFFICE OF PERSONNEL MANAGEMENT FEDERAL EMPLOYEES HEALTH
BENEFITS ACQUISITION REGULATION
1. The authority citation for 48 CFR Parts 1602, 1604, 1615, 1616,
1622, 1631, 1644, 1652, and 1653 continues to read as follows:
Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.
PART 1602--DEFINITIONS OF WORDS AND TERMS
2. In section 1602.170-2 paragraph (a) is revised to read as
follows:
1602.170-2 Community rate.
(a) Community rate means a rate of payment based on a per member
per month capitation rate or its equivalent that applies to a
combination of the subscriber groups for a comprehensive medical plan.
References in this subchapter to ``price analysis'' relating to the
applicability of policy and contract clauses refer to comprehensive
medical plan carriers using community rates.
* * * * *
3. Sections 1602.170-5 through 1602.170-12 are redesignated as
sections 1602.170-6 through 1602.170-13 respectively, a new section
1602.170-5 is added and newly redesignated section 1602.170-12 is
revised to read as follows:
1602.170-5 Cost or pricing data.
(a) Experience rated plans. Cost or pricing data is the data OPM
requests in in the carrier's rate submission for the applicable
contract period.
(b) Community rated plans. Cost or pricing data is the specialized
rating data used by carriers in computing a rate that is appropriate
for the Federal group and the similarly sized subscriber groups (SSSGs)
and requested by OPM in the rate instructions for the applicable
contract period.
* * * * *
1602.170-12 Similarly sized subscriber groups.
(a) Similarly sized subscriber groups (SSSGs) are a comprehensive
medical plan's two employer groups that:
(1) As of the date specified by OPM in the rate instructions, have
a subscriber enrollment closest to the FEHBP subscriber enrollment;
and,
(2) Use any rating method other than retrospective experience
rating; and,
(3) Meet the criteria specified in the rate instructions issued by
OPM.
(b) Any group with which an FEHB carrier enters into an agreement
to provide health care services is a potential SSSG (including separate
lines of business, government entities, groups that have multi-year
contracts, and groups having point-of-service products).
(c) Exceptions to the general rule stated in paragraph (b) of this
section are (and the following groups must be excluded from SSSG
consideration):
(1) Groups the carrier rates by the method of retrospective
experience rating;
[[Page 32406]]
(2) Groups consisting of the plan's own employees;
(3) Medicaid groups, Medicare groups, and groups that have only a
stand alone benefit (such as dental only);
(4) A purchasing alliance mandated by state or local government
which restricts membership to groups of less than 100 employees.
(d) OPM shall determine the FEHBP rate by selecting the lower of
the two rates derived by using rating methods consistent with those
used to derive the SSSG rates.
PART 1604--ADMINISTRATIVE MATTERS
1604.705 [Amended]
4. In subpart 1604.7, section 1604.705 is amended by removing the
words ``Audit--Negotiation,'' and adding in its place ``Audit &
Records--Negotiation.''
PART 1615--CONTRACTING BY NEGOTIATION
5. Section 1615.802 is revised to read as follows:
1615.802 Policy.
Pricing of FEHB contracts is governed by 5 U.S.C. 8902(i), 5 U.S.C.
8906, and other applicable law. FAR subpart 15.8 shall be implemented
by applying the policies and procedures--to the extent practicable--as
follows:
(a) For both experience rated and community rated contracts for
which the FEHBP premiums for the contract term will be less than
$500,000, OPM shall not require the carrier to provide cost or pricing
data in the rate proposal for the following contract term.
(b)(1) Cost analysis shall be used for contracts where premiums and
subscription income are determined on the basis of experience rating.
(2) The application of FAR 15.802(b)(2) should not be construed to
prohibit the consideration of preceding year surpluses or deficits in
carrier-held reserves in the rate adjustments for subsequent year
renewals of contracts based on cost analysis.
(c)(1) Price analysis for contracts where premiums and subscription
income are based on community rates. For contracts for which the FEHBP
premiums for the contract term will be less than $500,000, OPM shall
not require the carrier to provide cost or pricing data. The carrier
must submit only a rate proposal and abbreviated utilization data for
the applicable contract year. OPM will evaluate the proposed rates by
performing a basic reasonableness test on the information submitted.
Rates failing this test will be subject to further review.
(2) For contracts with fewer than 1,500 enrollee contracts for
which the FEHBP premiums for the contract term will be $500,000 or
more, OPM shall require the carrier to submit its rate proposal,
utilization data, and the certificate of accurate cost or pricing data
required in Sec. 1615.804-70. In addition, OPM shall require the
carrier to complete the proposed rates form containing cost and pricing
data, and the Community Rate Questionnaire, but shall not require the
carrier to send these documents to OPM. The carrier shall keep the
documents on file for periodic auditor and actuarial review in
accordance with Sec. 1652.204-70. OPM shall perform a basic
reasonableness test on the data submitted. Rates that do not pass this
test shall be subject to further OPM review.
(3) For contracts with 1,500 or more enrollee contracts for which
the FEHBP premiums for the contract term will be at least $500,000, OPM
shall require the carrier to provide the data and methodology used to
determine the FEHBP rates. OPM shall also require the data and
methodology used to determine the rates for the plan's similarly sized
subscriber groups. The carrier shall provide cost or pricing data
required by OPM in its rate instructions for the applicable contract
period. OPM shall evaluate the data to ensure that the rate is
reasonable and consistent with the requirements in this chapter. If
necessary, OPM may require the carrier to provide additional
documentation.
(4) Contracts shall be subject to a downward price adjustment if
OPM determines that the Federal group was charged more than it would
have been charged using a methodology consistent with that used for the
SSSGs. Such adjustments shall be based on the lower of the two rates
determined by using the methodology (including discounts) the Carrier
used for the two SSSGs.
(5) FEHBP community rated carriers shall comply with SSSG criteria
provided by OPM in the rate instructions for the applicable contract
period.
6. Section 1615.804-70 is revised to read as follows:
1615.804-70 Certificate of cost or pricing data for community rated
plans.
The contracting officer shall require a carrier with a contract
meeting the requirements in Sec. 1615.802(c)(2) or Sec. 1615.802(c)(3)
to execute the Certificate of Accurate Cost or Pricing Data contained
in this section. A carrier with a contract meeting the requirements in
Sec. 1615.802(c)(2) shall complete the Certificate and keep it on file
at the plan in accordance with Sec. 1652.204-70. A carrier with a
contract meeting the requirements in Sec. 1615.802(c)(3) shall submit
the Certificate to OPM along with its rate reconciliation, which is
submitted during the first quarter of the applicable contract year.
Certificate of Accurate Cost and Pricing Data for Community Rated Plans
This is to certify that, to the best of my knowledge and belief:
(1) the cost or pricing data submitted (or, if not submitted,
maintained and identified by the carrier as supporting
documentation) to the Contracting Officer or the Contracting
Officer's representative or designee, in support of the ________ *
FEHBP rates were developed in accordance with the requirements of 48
CFR Chapter 16 and the FEHBP contract and are accurate, complete,
and current as of the date this certificate is executed; and (2) the
FEHBP rates were developed in a manner consistent with the
methodology used to rate the plan's similarly sized subscriber
groups and approved by OPM.
---------------------------------------------------------------------------
* Insert the year for which the rates apply. Normally, this will
be the year for which the rates are being reconciled.
Firm:------------------------------------------------------------------
Name:------------------------------------------------------------------
Signature:-------------------------------------------------------------
Date of Execution:-----------------------------------------------------
(End of Certificate)
1615.804-71 [Removed and reserved]
7. Section 1615.804-71 is removed and reserved, and section
1615.804-72 is revised to read as follows:
1615.804-72 Rate reduction for defective pricing or defective cost or
pricing data.
The clause set forth in Sec. 1652.215-70 shall be inserted in FEHBP
contracts for $500,000 or more that are based on price analysis.
PART 1616--TYPES OF CONTRACTS
8. Section 1616.102, is revised to read as follows:
1616.102 Policies.
All FEHBP contracts shall be negotiated benefits contracts.
Subpart 1616.2--[Removed]
9. Subpart 1616.2 is removed and Subpart 1616.70 is added to read
as follows:
Subpart 1616.70--Negotiated Benefits Contracts
1616.7001 Clause--contracts based on price analysis (community rate).
The clause at Sec. 1652.216-70 shall be inserted in all FEHBP
contracts based on price analysis.
[[Page 32407]]
1616.7002 Clause--contracts based on cost analysis (experience rate).
The clause at Sec. 1652.216-71 shall be inserted in all FEHBP
contracts based on cost analysis.
PART 1622--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
10.-11. In subpart 1622.8, sections 1622.810-70 and 1622.810-71 are
added to read as follows:
Subpart 1622.8--Equal Employment Opportunity.
1622.810-70 Contract clause.
The statutory provisions of 5 U.S.C. Chapter 89 obviate the
issuance of solicitations. Nevertheless, FAR clause 52.222-21,
Certification of Nonsegregated Facilities, shall be inserted in all
FEHBP contracts, and the contracting officer shall replace the word
``offeror'' with the word ``contractor'' wherever it appears in the
clause.
1622.810-71 Contract clause.
The statutory provisions of 5 U.S.C. Chapter 89 obviate the
issuance of solicitations. Nevertheless, FAR clause 52.222-25,
Affirmative Action Compliance shall be inserted in all FEHBP contracts,
and the contracting officer shall replace the word ``offeror'' with the
word ``contractor'' wherever it appears in the clause.
PART 1631--CONTRACT COST PRINCIPLES AND PROCEDURES
12. In subpart 1631.2, section 1631.205-75, paragraph (b), is
revised to read as follows:
1631.205-75 Selling costs.
* * * * *
(b) Selling costs are allowable costs to FEHBP contracts to the
extent that they are necessary for conducting annual contract
negotiations with the Government and for liaison activities necessary
for ongoing contract administration. Personnel and related travel costs
are allowable for attendance at Open Season Health fairs and other
similar activities sponsored by Government agencies (but see FAR
31.205-1 ``Public relations and advertising costs'', and The Federal
Employees Health Benefits Handbook for Personnel and Payroll Offices,
Subchapter S2-3(f) ``Controlling contacts between employees and
carriers'').
PART 1644--SUBCONTRACTING POLICIES AND PROCEDURES
13. In Subpart 1644.1, section 1644.170 is revised to read as
follows:
1644.170 Policy for FEHBP subcontracting consent.
For all experience rated FEHBP contracts, advance approval shall be
required on subcontracts or modifications to subcontracts when the
amount charged against the FEHBP contract exceeds $100,000 and is 25%
of the total cost of the subcontract.
14. In subpart 1644.2, section 1644.270 is revised to read as
follows:
1644.270 FEHBP contract clause.
The clause set forth at Sec. 1652.244-70 shall be inserted in all
experience rated FEHBP contracts.
SUBCHAPTER H--CLAUSES AND FORMS
PART 1652--CONTRACT CLAUSES
15. In part 1652, section 1652.000 is revised to read as follows:
1652.000 Applicable clauses.
The clauses of FAR subpart 52.2 shall be applicable to FEHBP
contracts as specified in the FEHBAR Clause Matrix in subpart 1652.3.
Section and Clause Title
52.202-1 Definitions.
52.203-3 Gratuities.
52.203-5 Covenant Against Contingent Fees.
52.203-7 Anti-Kickback Procedures.
52.203-9 Requirement for Certificate of Procurement Integrity--
Modification.
52.203-12 Limitation on Payments to Influence Certain Federal
Transactions.
52.209-6 Protecting the Government's Interest When Subcontracting
With Contractors Debarred, Suspended, or Proposed for Debarment.
52.215-2 Audit and Records--Negotiation.
52.215-22 Price Reduction for Defective Cost or Pricing Data.
52.215-24 Subcontractor Cost or Pricing Data.
52.215-27 Termination of Defined Benefit Pension Plans.
52.215-30 Facilities Capital Cost of Money.
52.215-31 Waiver of Facilities Capital Cost of Money.
52.215-39 Reversion or Adjustment of Plans for Postretirement
Benefits Other Than Pensions (PRB).
52.219-8 Utilization of Small, Small Disadvantaged and Women-Owned
Small Business Concerns.
52.222-1 Notice to the Government of Labor Disputes.
52.222-3 Convict Labor.
52.222-4 Contract Work Hours and Safety Standards Act--Overtime
Compensation--General.
52.222-21 Certification of Nonsegregated Facilities.
52.222-25 Affirmative Action Compliance.
52.222-26 Equal Opportunity.
52.222-28 Equal Opportunity Preaward Clearance of Subcontracts.
52.222-29 Notification of Visa Denial.
52.222-35 Affirmative Action for Special Disabled and Vietnam Era
Veterans.
52.222-36 Affirmative Action for Handicapped Workers.
52.222-37 Employment Reports on Special Disabled Veterans and
Veterans of the Vietnam Era.
52.223-2 Clean Air and Water.
52.223-6 Drug-Free Workplace.
52.227-1 Authorization and Consent.
52.227-2 Notice and Assistance Regarding Patent and Copyright
Infringement.
52.229-3 Federal, State,and Local Taxes.
52.229-4 Federal, State, and Local Taxes (Noncompetitive Contract).
52.229-5 Taxes--Contracts Performed in U.S. Possessions or Puerto
Rico.
52.229-6 Taxes--Foreign Fixed-Price Contracts.
52.230-2 Cost Accounting Standards.
52.230-3 Disclosure and Consistency of Cost Accounting Practices.
52.230-5 Administration of Cost Accounting Standards.
52.232-8 Discounts for Prompt Payment.
52.232-17 Interest.
52.232-23 Assignment of Claims.
52.232-28 Electronic Funds Transfer Payment Methods.
52.233-1 Disputes.
52.242-1 Notice of Intent to Disallow Costs.
52.242-3 Penalties for Unallowable Costs.
52.242-13 Bankruptcy.
52.243-1 Changes--Fixed Price--Alternate I.
52.244-5 Competition in Subcontracting.
52.245-2 Government Property (Fixed-Price Contracts).
52.246-25 Limitation of Liability--Services.
52.247-63 Preference for U.S.-Flag Air Carriers.
52.249-2 Termination for Convenience of the Government (Fixed-
Price).
52.249-8 Default (Fixed-Price Supply and Service).
52.251-1 Government Supply Sources.
52.232-2 Clauses Incorporated by Reference.
52.252-4 Alterations in Contract.
52.252-6 Authorized Deviations in Clauses.
16. In subpart 1652.2, sections 1652.204-70 and 1652.215-70 are
revised, and section 1652.204-72 is amended by adding ``(MAR 1995)'' in
the title of the clause after the words ``Disputed Claims'' and before
the period to read as follows:
1652.204-70 Contractor records retention.
As prescribed in 1604.705, the following clause shall be inserted
in all FEHBP contracts.
Contractor Records Retention (Jan 1997)
Notwithstanding the provisions of section 5.7 (FAR 52.215-2(f))
``Audit and Records-Negotiation,'' the Carrier will retain and make
available all records applicable to a contract term that support the
annual statement of operations and, for contracts that exceed the
threshold at FAR 15.804-
[[Page 32408]]
2(a)(1), the rate submission for that contract term for a period of 5
years after the end of the contract term to which the records relate,
except that individual enrollee and/or patient claim records shall be
maintained for 3 years after the end of the contract term to which the
claim records relate.
(End of Clause)
1652.215-70 Rate Reduction for Defective Pricing or Defective Cost or
Pricing Data.
As prescribed in 1615.804-72, the following clause shall be
inserted in FEHBP contracts exceeding the threshold at FAR 15.804-
2(a)(1) that are based on price analysis.
Rate Reduction for Defective Pricing or Defective Cost or Pricing Data
(Jan 1997)
(a) If any rate established in connection with this contract was
increased because (1) the Carrier submitted, or kept in its files in
support of the FEHBP rate, cost or pricing data that were not
complete, accurate, or current as certified in the Certificate of
Accurate Cost or Pricing Data (FEHBAR 1615.804-70); (2) the Carrier
submitted, or kept in its files in support of the FEHBP rate, cost
or pricing data that were not accurate as represented in the rate
proposal documents; (3) the Carrier developed FEHBP rates with a
rating methodology and structure inconsistent with that used to
develop rates for similarly sized subscriber groups (see FEHBAR
1602.170-12) as certified in the Certificate of Accurate Cost or
Pricing Data for Community Rated Plans; or (4) the Carrier submitted
or, or kept in its files in support of the FEHBP rate, data or
information of any description that were not complete, accurate, and
current--then, the rate shall be reduced in the amount by which the
price was increased because of the defective data or information.
(b)(1) If the Contracting Officer determines under paragraph (a)
of this clause that a price or cost reduction should be made, the
Carrier agrees not to raise the following matters as a defense:
(i) The Carrier was a sole source supplier or otherwise was in a
superior bargaining position and thus the price of the contract
would not have been modified even if accurate, complete, and current
cost or pricing data had been submitted or maintained and
identified.
(ii) The Contracting Officer should have known that the cost or
pricing data in issue were defective even though the Carrier took no
affirmative action to bring the character of the data to the
attention of the Contracting Officer.
(iii) The contract was based on an agreement about the total
cost of the contract and there was no agreement about the cost of
each item procured under the contract.
(iv) The Carrier did not submit a Certificate of Current Cost or
Pricing Data.
(2)(i) Except as prohibited by subdivision (b)(2)(ii) of this
clause, an offset in an amount determined appropriate by the
Contracting Officer based upon the facts shall be allowed against
the amount of a contract price reduction if--
(A) The Carrier certifies to the Contracting Officer that, to
the best of the Carrier's knowledge and belief, the Carrier is
entitled to the offset in the amount requested; and
(B) The Carrier proves that the cost or pricing data were
available before the date of agreement on the price of the contract
(or price of the modification) and that the data were not submitted
before such date.
(ii) An offset shall not be allowed if--
(A) The understated data was known by the Carrier to be
understated when the Certificate of Current Cost or Pricing Data was
signed; or
(B) The Government proves that the facts demonstrate that the
contract price would not have increased in the amount to be offset
even if the available data had been submitted before the date of
agreement on price.
(c) When the Contracting Officer determines that the rates shall
be reduced and the Government is thereby entitled to a refund, the
Carrier shall be liable to and shall pay the FEHB Fund at the time
the overpayment is repaid--
(1) Simple interest on the amount of the overpayment from the
date the overpayment was paid from the FEHB Fund to the Carrier
until the date the overcharge is liquidated. In calculating the
amount of interest due, the quarterly rate determinations by the
Secretary of the Treasury under the authority of 26 U.S.C.
6621(a)(2) applicable to the periods the overcharge was retained by
the Carrier shall be used; and,
(2) A penalty equal to the amount of overpayment, if the Carrier
knowingly submitted cost or pricing data which was incomplete,
inaccurate, or noncurrent.
(End of Clause)
17. Section 1652.215-71 is amended by removing ``(JAN 1991)'' from
the clause heading and adding in its place ``(JAN 1997)'' and by
revising paragraph (f) to read as follows:
1652.215-71 Investment Income.
* * * * *
(f) The Carrier shall credit the Special Reserve for income due
in accordance with this clause. All amounts payable shall bear
simple interest on lost investment income at the quarterly rate
determined by the Secretary of the Treasury under the authority of
16 U.S.C. 6621(a)(2) applicable to the periods in which the amount
becomes due, as provided in paragraphs (d) and (e) of this clause.
* * * * *
18. Section 1652.216-70 is revised to read as follows:
1652.216-70 Accounting and price adjustment.
As prescribed in 1616.7001, the following clause shall be inserted
in all FEHBP contracts based on price analysis.
Accounting and Price Adjustment (Jan 1997)
(a) Annual Accounting Statement. The Carrier, not later than 90
days after the end of each contract period, shall furnish to OPM for
that contract period an accounting of its operations under the
contract. The accounting shall be in the form prescribed by OPM.
(b) Adjustment. (1) This contract is community rated as defined
in FEHBAR 1602.170-2.
(2) The subscription rates agreed to in this contract shall be
equivalent to the subscription rates given to the plan's similarly
sized subscriber groups (SSSGs).
(3) If, at the time of the rate reconciliation, the subscription
rates are found to be lower than the equivalent rates for the lower
of the two SSSGs, the carrier may include an adjustment to the
Federal group's rates for the next contract period.
(4) If, at the time of the rate reconciliation, the subscription
rates are found to be higher than the equivalent rates for the lower
of the two SSSGs, the Carrier shall reimburse the Fund, for example,
by reducing the FEHB rates for the next contract term to reflect the
difference between the estimated rates and the rates which are
derived using the methodology of the lower rated SSSG.
(5) No upward adjustment in the rate established for this
contract will be allowed or considered by the Government or will be
made by the Carrier in this or in any other contract period on the
basis of actual costs incurred, actual benefits provided, or actual
size or composition of the FEHBP group during this contract period.
(6) In the event this contract is not renewed, neither the
Government nor the Carrier shall be entitled to any adjustment or
claim for the difference between the subscription rates prior to
rate reconciliation and the actual subscription rates.
(End of Clause)
18(a). The introductory sentence of section 1652.216-71 is revised
to read as follows:
1652.216-71 Accounting and Allowable Cost.
As prescribed in 1616.7002, the following clause shall be inserted
in all FEHBP contracts based on cost analysis.
* * * * *
19. Section 1652.222-70 is amended by removing the date ``(JAN
1991)'' in the clause heading and adding in its place ``(JAN 1997)''
and by adding a new paragraph (a)(14) to read as follows:
1652.222-70 Notice of significant events.
* * * * *
(a) * * *
(14) A novation or change of name.
20. Sections 1652.232-70 and 1652.232-71 are amended by adding
dates in the clause titles to read as follows:
1652.232-70 Payments--community rated contracts.
* * * * *
Payments (Jan 1989)
* * * * *
1652.232-71 Payments--experience rated contracts.
* * * * *
[[Page 32409]]
Payments (May 1992)
* * * * *
21. Section 1652.244-70 is amended by revising the introductory
paragraph, clause date, and paragraph (a) of the clause to read as
follows:
1652.244-70 Subcontracts.
As prescribed by 1644.270, the following clause shall be inserted
in all contracts based on cost analysis:
Subcontracts (Jan 1997)
(a) The Carrier shall notify the Contracting Officer reasonably
in advance of entering into any subcontract, or any subcontract
modification, or as otherwise specified by this contract, if both
the amount of the subcontract or modification charged to the FEHB
Program exceeds $100,000 and is 25 percent of the total cost of the
subcontract.
* * * * *
Subpart 1652.3--FEHBP Clause Matrix
22. In subpart 1652.3, section 1652.370 paragraph (a) is amended by
removing the words ``established catalog or market price'' in the first
sentence and adding in its place the words ``price analysis;'' and by
revising the FEHBP Clause Matrix to read as follows:
1652.370 Use of the matix.
* * * * *
FEHBP Clause Matrix
--------------------------------------------------------------------------------------------------------------------------------------------------------
Use with contracts based on
Clause No. Text Reference Title Use status ---------------------------------------
Cost analysis Price analysis
--------------------------------------------------------------------------------------------------------------------------------------------------------
FAR 52.202-1................... FAR 2.2........................ Definitions............... M T T
FAR 52.203-3................... FAR 3.202...................... Gratuities................ M T T
FAR 52.203-5................... FAR 3.404(c)................... Covenant Against M T T
Contingent Fees.
FAR 52.203-7................... FAR 3.502-3.................... Anti-Kickback Procedures.. M T T
FAR 52.203-9................... FAR 3.104-10(b)................ Requirement for M T T
Certificate of
Procurement Integrity--
Modification.
FAR 52.203-12.................. FAR 3.808...................... Limitation on Payments to M T T
Influence Certain Federal
Transactions.
1652.203-70.................... 1603.703....................... Misleading, Deceptive, or M T T
Unfair Advertising.
1652.204-70.................... 1604.705....................... Contractor Records M T T
Retention.
1652.204-71.................... 1604.7001...................... Coordination of Benefits.. M T T
1652.204-72.................... 1604.7101...................... Filing Health Benefit M T T
Claims/Court Review of
Disputed Claims.
FAR 52.209-6................... FAR 9.409(b)................... Protecting the M T T
Government's Interest
When Subcontracting With
Contractors Debarred,
Suspended, or Proposed
for Debarment.
FAR 52.215-2................... FAR 15.105-2(b)................ Audit & Records-- M T T
Negotiation.
FAR 52.215-22.................. FAR 15.804-8(a)................ Price Reduction for M T
Defective Cost or Pricing
Data.
FAR 52.215-24.................. FAR 15.804-8(c)................ Subcontractor Cost or M T
Pricing Data.
FAR 52.215-27.................. FAR 15.804-8(e)................ Termination of Defined M T
Benefit Pension Plans.
FAR 52.215-30.................. FAR 15.904(a).................. Facilities Capital Cost of M T
Money.
FAR 52.215-31.................. FAR 15.904(b).................. Waiver of Facilities A T
Capital Cost of Money.
FAR 52.215-39.................. FAR 15.804-8(f)................ Reversion or Adjustment of M T
Plans for Post-retirement
Benefits Other Than
Pensions (PRB).
1652.215-70.................... 1615.804-72.................... Rate Reduction for M .................. T
Defective Pricing or
Defective Cost or Pricing
Data.
1652.215-71.................... 1615.805-71.................... Investment Income......... M T ..................
1652.216-70.................... 1616.7001...................... Accounting and Price M .................. T
Adjustment.
1652.216-71.................... 1616.7002...................... Accounting and Allowable M T ..................
Cost.
FAR 52.219-8................... FAR 19.708(a).................. Utilization of Small, M T T
Small Disadvantaged and
Women-Owned Small
Business Concerns.
FAR 52.222-1................... FAR 22.103-5(a)................ Notice to the Government M T T
of Labor Disputes.
FAR 52.222-3................... FAR 22.202..................... Convict Labor............. M T T
FAR 52.222-4................... FAR 22.305(a).................. Contract Work Hours and M T T
Safety Standards Act--
Overtime Compensation--
General.
FAR 52.222-21.................. FAR 22.810(a)(1)............... Certification of M T T
Modification:.................. Nonsegregated Facilities.
1622.810-70....................
FAR 52.222-25.................. FAR 22.810(d).................. Affirmative Action M T T
Modification:.................. Compliance.
1622.810-71....................
FAR 52.222-26.................. FAR 22.810(a).................. Equal Opportunity......... M T T
FAR 52.222-28.................. FAR 22.810(g).................. Equal Opportunity Preaward M T T
Clearance of Subcontracts.
FAR 52.222-29.................. FAR 22.810(h).................. Notification of Visa A T T
Denial.
FAR 52.222-35.................. FAR 22.1308(a)................. Affirmative Action for M T T
Special Disabled and
Vietnam Era Veterans.
FAR 52.222-36.................. FAR 22.1408(a)................. Affirmative Action for M T T
Handicapped Workers.
FAR 52.222-37.................. FAR 22.1308(b)................. Employment Reports on M T T
Special Disabled Veterans
and Veterans of the
Vietnam Era.
1652.222-70.................... 1622.103-70.................... Notice of Significant M T T
Events.
FAR 52.223-2................... FAR 23.105(b).................. Clean Air and Water....... A T T
FAR 52.223-6................... FAR 23.505(b).................. Drug-Free Workplace....... A T T
1652.224-70.................... 1624.104....................... Confidentiality of Records M T T
FAR 52.227-1................... FAR 27.201-2(a)................ Authorization and Consent. M T T
FAR 52.227-2................... FAR 27.202-2................... Notice and Assistance M T T
Regarding Patent and
Copyright Infringement.
[[Page 32410]]
FAR 52.229-3................... FAR 29.401-3................... Federal, State and Local M T T
Taxes.
FAR 52.229-4................... FAR 29.401-4................... Federal, State and Local M T
Taxes (Noncompetitive
Contract).
FAR 52.229-5................... FAR 29.401-5................... Taxes--Contracts Performed A T T
in U.S. Possessions or
Puerto Rico.
FAR 52.229-6................... FAR 29.402-1(a)................ Taxes--Foreign Fixed Price A T T
Contracts.
FAR 52.230-2................... FAR 30.201-4(a)(1)............. Cost Accounting Standards. A T T
FAR 52.230-3................... FAR 30.201-4(b)(1)............. Disclosure and Consistency A T T
of Cost Accounting
Practices.
FAR 52.230-5................... FAR 30.201-4(d)(1)............. Administration of Cost A T T
Accounting Standards.
FAR 52.232-8................... FAR 32.111(c)(1)............... Discounts for Prompt M T T
Payment.
FAR 52.232-17.................. FAR 32.617(a).................. Interest.................. M T T
Modification:..................
1632.617.......................
FAR 52.232-23.................. FAR 32.806(a)(1)............... Assignment of Claims...... A T T
FAR 52.232-28.................. FAR 32.908(d).................. Electronic Funds Transfer M T T
Payment Methods.
1652.232-70.................... 1632.171....................... Payments--Contracts A .................. T
Without Letter of Credit
Payment Arrangements.
1652.232-71.................... 1632.172....................... Payments--Contracts With A T
Letter of Credit Payment
Arrangements.
1652.232-72.................... 1632.772....................... Non-Commingling of FEHBP M T
Funds.
1652.232-73.................... 1632.806-70.................... Approval for Assignment of M T T
Claims.
FAR 52.233-1................... FAR 33.215..................... Disputes.................. M T T
FAR 52.242-1................... FAR 42.802..................... Notice of Intent to M T
Disallow Costs.
FAR 52.242-3................... FAR 42.709-6................... Penalties for Unallowable M T
Costs.
FAR 52.242-13.................. FAR 42.903..................... Bankruptcy................ M T T
FAR 52.243-1................... FAR 43.205(a)(1)............... Changes--Fixed Price-- M T T
Alternate I.
FAR 52.244-5................... FAR 44.204(e).................. Competition in M T
Subcontracting.
1652.244-70.................... 1644.270....................... Subcontracts.............. M T
FAR 52.245-2................... FAR 45.106(b)(1)............... Government Property (Fixed M T T
Price Contracts).
FAR 52.246-25.................. FAR 46.805(a)(4)............... Limitation of Liability-- M T
Services.
1652.246-70.................... 1646.301....................... FEHBP Inspection.......... M T T
FAR 52.247-63.................. FAR 47.405..................... Preference for U.S.-Flag M T T
Air Carriers.
FAR 52.249-2................... FAR 49.502(b)(1)(i)............ Termination for M T T
Convenience of the
Government--Fixed Price.
FAR 52.249-8................... FAR 49.504(a)(1)............... Default (Fixed-Price M T T
Supply and Service).
1652.249-70.................... 1649.101-70.................... Renewal and Withdrawal of M T T
Approval.
FAR 52.251-1................... FAR 51.107..................... Government Supply Sources. A T ..................
FAR 52.252-2................... FAR 52.107(b).................. Clauses Incorporated by M T T
Reference.
FAR 52.252-4................... FAR 52.107(d).................. Alterations in Contract... M T T
FAR 52.252-6................... FAR 52.107(f).................. Authorized Deviations in M T T
Clauses.
--------------------------------------------------------------------------------------------------------------------------------------------------------
PART 1653--FORMS [AMENDED]
23. Part 1653 is amended by removing all references to Sec. 53.215-
2(b), Sec. 53.301-1412, and SF-1412 in the chart.
[FR Doc. 96-15403 Filed 6-21-96; 8:45 am]
BILLING CODE 6325-01-P
Complete official Federal Register PDF
FR Doc. 96-15367 Acquisition Regulation; Department of Energy Management and Operating Contracts
[Federal Register Volume 61, Number 122 (Monday, June 24, 1996)]
[Proposed Rules]
[Pages 32588-32604]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15367]
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 /
Proposed Rules
[[Page 32588]]
DEPARTMENT OF ENERGY
48 CFR Parts 917, 950, 952, and 970
[1991-AB-28]
Acquisition Regulation; Department of Energy Management and
Operating Contracts
AGENCY: Department of Energy.
ACTION: Notice of Proposed Rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Department of Energy (DOE) proposes to amend the
Department of Energy Acquisition Regulation (DEAR) to implement certain
key recommendations of its Department-wide contract reform initiative.
Changes are proposed in the following areas: performance-based
management contracting; fines, penalties, third-party liability, and
property liability; requirements for contractor make or buy plans;
payment of fee; procedures for determining the application of laws,
regulations, and Department directives to contractors; environment;
ownership of records; and overtime management.
DATES: Written comments should be forwarded no later than August 23,
1996. A public hearing will be held on August 1, 1996, beginning at
9:30 a.m. local time at the address listed below. Requests to speak at
the hearing should be received by 4:30 p.m. local time on July 18,
1996. Later requests will be accommodated to the extent practicable.
ADDRESSES: All comments, as well as requests to speak at the public
hearing, are to be submitted to Connie P. Fournier, Office of Policy
(HR-51), Department of Energy, 1000 Independence Avenue, SW,
Washington, D.C. 20585, (202) 586-8245; (202) 586-0545 (facsimile);
[email protected] (Internet).
The public hearing will be held at the U.S. Department of Energy,
Main Auditorium, Forrestal Building, 1000 Independence Avenue, SW,
Washington, DC 20585.
The administrative record regarding this rulemaking that is on file
for public inspection, including a copy of the transcript of the public
hearing and any additional public comments received, is located in the
Department's Freedom of Information Reading Room, Room 1E-190, 1000
Independence Avenue, SW, Washington, DC 20585.
FOR FURTHER INFORMATION CONTACT: Connie P. Fournier, Office of Policy
(HR-51), Department of Energy, 1000 Independence Avenue, SW,
Washington, D.C. 20585, (202) 586-8245.
SUPPLEMENTARY INFORMATION:
I. Background
II. Section-by-Section Analysis
III. Procedural Requirements
A. Review Under Executive Order 12866
B. Review Under Executive Order 12778
C. Review Under the Regulatory Flexibility Act
D. Review Under the Paperwork Reduction Act
E. Review Under Executive Order 12612
F. Review Under the National Environmental Policy Act
IV. Opportunities for Public Comment
I. Background
In February 1994, the Department of Energy issued the report of its
Contract Reform Team, Making Contracting Work Better and Cost Less,
which recommended a number of changes to improve the Department's
acquisition system, principally in areas affecting management and
operating contracts. The Department has since developed and tested
various policies, practices, and procedures to implement the report's
recommendations. Today's proposed rule would include those new policies
and changes to existing policies in the Department's acquisition
regulation needed to strengthen the management of management and
operating contracts.
DOE today also publishes a notice of interim final rulemaking that
discusses changes to the Department's policies regarding competition
and extension of its management and operating contracts. A third
rulemaking that discusses the Department's fee policies for profit
making and nonprofit management and operating contractors will be
promulgated as a separate proposal. Together, these three rulemakings
constitute the Department's regulatory implementation of certain key
contract reform initiatives in its acquisition regulation.
II. Section-by-Section Analysis
The proposed rule would amend the following sections of the DEAR,
as discussed below. For convenience, this section-by-section analysis
is grouped by the major items covered. Proposed text changes are listed
at the end of each major item discussed.
Item I--Performance-based Management Contracting
The Contract Reform Report recommended Performance Based Management
Contracts, a new form of management and operating contract, which use
performance-based contracting concepts to better define measurable
standards of performance under which the Department evaluated and
appropriately rewarded contractors. That recommendation was based, in
part, on the policies established by the Office of Federal Procurement
Policy (OFPP) Policy Letter 91-2, entitled ``Service Contracting.''
That Policy Letter, issued in April 1991, establishes performance-based
contracting as a strategy for acquiring services, with the objectives
of improving quality and ensuring that the Government only pays for
services actually received. These objectives are met through
contracting methodologies that use performance-based, results-oriented
statements of work in conjunction with measurable performance
indicators to assess quality, evaluation and selection factors that
employ quality related factors, performance incentives, and greater use
of fixed pricing arrangements. Although the OFPP Policy Letter applies
to service contracts under Part 37 of the Federal Acquisition
Regulation, the concepts and methodologies of performance-based service
contracting have application in the Department's contracts for the
management and operation of its sites and facilities. Accordingly, the
Department considered the policies established under the OFPP Policy
Letter in developing policies for its performance-based management and
operating contracts and adopted its key features and methodologies. The
Department intends to review its proposed coverage with the upcoming
proposed coverage in FAR Part 37 implementing the OFPP Policy Letter to
ensure consistency with Government-wide policies. The key to the
Department's efforts is the development of specific, objective criteria
for performance as well as identification of specific measures to
determine if the contractor met the expectations established in the
contract. Accordingly, today's proposed rule would define performance-
based management contracts and would require that specific criteria for
performance and measures of that performance be included in the
contract.
The following changes are proposed:
1. 917.600, Scope of subpart. This section would be revised to
recognize the applicability of the requirements of the subpart to
performance-based management contracts.
2. 917.601, Definitions. This section would be added to define the
term ``performance-based management contract'' as a form of management
and operating contract to be used by the Department of Energy for the
management and operation of its weapons production and laboratory
facilities, where the contract includes objective performance standards
and incentives. This term, first identified in
[[Page 32589]]
the Contract Reform Report, would be recognized as the embodiment of
the Department's commitment and policy to employ performance-based
contracting methodologies in contracting for the management and
operation of its sites and facilities.
3. 970.10, Specifications, standards and other statement of work
descriptions. Section 970.1001 is proposed to be revised as a new
section on Performance-based statements of work, criteria, and
measures, and section 970.1002 is proposed to be retitled, Additional
considerations.
Item II--Fines, Penalties, Third-party Liability, and Property
Liability
The Contract Reform Report indicated that the Department's
contracting policy must focus on payment for results and not simply
payment for incurred costs. An early attempt, in January 1990, to be
more outcome-oriented and encourage the contractor to more efficiently
manage risk resulted in the ``accountability rule.'' This revision to
the Department's cost reimbursement policies, published as a final rule
(56 FR 28099) on June 19, 1991, made profit making management and
operating contractors liable for certain costs, known as ``avoidable
costs,'' which resulted from the negligence of the contractor's or
subcontractor's employees.
Based on practical experience with this policy, the Department is
proposing to maintain the concept of transferring certain risk to the
contractor in order to incentivize good business management but to
change the approach to minimize the costs associated with the
administration of the accountability rule. Therefore, this notice of
proposed rulemaking would revise the current reimbursement rules in the
DEAR regarding avoidable costs by eliminating the provisions of the
accountability rule contained in DEAR Part 970 and introducing a new
policy on cost reimbursement and liability. With regard to property,
the Department also proposes to have the contractor compensate the
Government for Government property losses and damage under certain
circumstances.
A. Comments on Sample Contract Provisions for Profit-Making Contractors
Related to Liability Provisions
The Department announced in the Commerce Business Daily on February
13, 1995, the availability of draft sample contract provisions which
contained, among other things, contract clauses relating to the
reimbursement of costs for fines, penalties, third party liabilities,
and damage to, or loss of, government property. These contract clauses
have also been subjected to numerous, less formal reviews by
stakeholders and other interested parties both within and outside of
the Department in the months preceding and following the announcement
of the availability of the draft sample contract. The contract clauses
proposed today governing the Department's treatment of costs for fines,
penalties, third party liabilities, and damage to, or loss of,
government property reflect the Department's consideration of comments,
concerns, and observations raised by stakeholders during these
developmental efforts.
B. Burden of Proof Shifted for Fines and Penalties, Third-Party
Liability, and Damage to or Loss of Government Property
A key change in today's notice of proposed rulemaking would be the
adoption of a rebuttable presumption of unallowability standard for
fines and penalties, third-party liability, and damage to or loss of
government property. This standard, which would affect a number of
contract clauses governing the Department's management and operating
contracts, would shift the burden of proof for establishing the
reasonableness and allowability of these costs from the Government to
the contractor. An underlying premise in promulgating this change in
policy is the belief that the contractor has in its possession the
information necessary to determine how and why these costs are incurred
and, therefore, is better able to establish the facts and other
information needed to support a decision of allowability. Accordingly,
under this proposed rule, the contractor would have to make an
affirmative showing to the contracting officer that such costs should
be allowable.
The Department believes that the proposals set forth in this
proposed rule concerning the presumption of allowability and burden of
proof for fines and penalties, third-party liability, and damage to or
loss of government property are appropriate to the Department's
management and operating contracts. In addition, the Department
believes that the changes are supported by current policies, legal
precedent, and legislative reform efforts in this area. For example,
under a previous rulemaking published by the Federal Acquisition
Regulation Council, Federal Acquisition Regulation 31.201-3 was amended
to change the Government allowability standard and shift the burden of
proof from the Government to the contractor once the contracting
officer challenged the allowability of a cost (see 52 FR 19800, May 27,
1987). Further, Section 2151(f)(2) of the Federal Acquisition
Streamlining Act of 1994 (Pub. L. 103-355), entitled, Allowable
Contract Costs, provides that the Federal Acquisition Regulation shall
require a contracting officer not to resolve any questioned costs until
adequate documentation has been obtained from the contractor with
respect to the questioned costs.
C. Prudent Business Judgment
This proposed rule contains amendments to DEAR 970.3101-3, General
basis for reimbursement of costs, and the general allowability
paragraph (paragraph (c)) of DEAR 970.5204-13 and 970.5204-14. Under
these amendments, the Department would rely on FAR 31.201-3,
Determining Reasonableness, as the basis for determining cost
reasonableness. Under FAR 31.201-3, 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. This standard
would be used in conjunction with other factors stated in the affected
provisions and contract clauses to determine cost allowability and
reimbursement.
This guidance would also be applied in determining whether the
contractor has met its burden to demonstrate that its managerial
personnel did not fail to exercise prudent business judgment under the
facts and circumstances leading to the incurrence of the cost.
In applying this new standard, the contracting officer would
consider the totality of the circumstances and the exercise of skill
and judgment by the contractor's management in his/her review and
determination on a particular cost's reasonableness. Included in the
contracting officer's review of each set of circumstances would be an
analysis of the contractor's management practices with respect to lower
level employees, including whether management has failed to act on
repeated misconduct by lower level employees or has failed to institute
on a systematic basis sufficient controls or mechanisms to prevent
deficient behavior or performance.
D. Fines and Penalties.
The current DEAR policy on fines and penalties, DEAR 970.3102-21,
contains amendments from the accountability rule and provides different
treatment for profit making contractors and nonprofit contractors. This
proposed rule would amend this policy and the allowable cost provisions
to make fines and
[[Page 32590]]
penalties unallowable unless the contractor demonstrates to the
contracting officer that they were incurred as a result of compliance
with specific terms and conditions of the contract or written
instructions from the contracting officer.
The proposed rule additionally provides that the contracting
officer would have authority to reimburse the contractor where the fine
or penalty was imposed without regard to whether the contractor was at
fault or exercised due care, and the fine or penalty could not have
been avoided by the exercise of due care by the contractor or its
employees. The Department recognizes concerns on the part of
contractors regarding potential liabilities arising from activities
occurring on a Department of Energy-owned site before the contractor
assumed responsibility for that site and, for this reason, the
Department is proposing a new clause, DEAR 970.5204-XX--Preexisting
Conditions.
E. Litigation and Losses From Third-Party Liabilities.
This proposed rule would amend certain contract clauses to provide
that third-party liabilities would not be allowable unless the
contractor demonstrates that they did not result from (1) willful
misconduct or lack of good faith by the contractor's managerial
personnel, or (2) failure to exercise prudent business judgment by the
contractor's managerial personnel. Under the proposed rule, the new
clause, Insurance--Litigation and Claims, would provide guidance on the
reimbursement of insurance covering third-party claims, litigation
involving third-party claims, treatment of punitive damages under a
third-party claim, and the burden of proof carried by the contractor in
seeking reimbursement of its costs. The proposed revision to the
Litigation and Claims clause would also revise the Department's
guidance on non-third-party litigation, such as litigation by other
governmental entities. The new clause would, in no way, impact or
affect the Department's obligation to provide nuclear hazards indemnity
pursuant to the Price-Anderson Act (42 U.S.C. Section 2210(d)).
On the issue of reimbursement of contractor insurance costs, the
Department proposes that contracting officers should be given authority
to pro-rate the cost of premiums incurred by contractors to exclude the
unallowable portion but still cover the portion of the premium
allowable under the contract's terms.
Finally, the Department proposes to revise the allowable cost
provisions in DEAR 970.5204-13 and 970.5204-14 to clearly provide that
litigation expenses would only be allowable if incurred in accordance
with Department-approved contractor litigation management procedures,
including cost guidelines.
F. Qui Tam Actions.
A new paragraph (h) would be added to DEAR 970.5204-61, Cost
Prohibitions Related to Legal and Other Proceedings, to address the
treatment of costs incurred in proceedings involving a qui tam action
under the False Claims Act, 31 U.S.C. 3730, alleging fraud against the
Government, which are not otherwise covered by the existing provisions
of that clause.
G. Environmentally-Related Third-Party Liabilities Incurred by
Contractors Performing Response Action Work.
The Department has reviewed a number of issues, including the types
of environmental cleanup problems confronted by the Department and its
contractors, the potential third-party liabilities at the Department's
sites, and the availability of reasonably priced commercial pollution
liability insurance for sites potentially contaminated with radioactive
waste. A determination has been made that the same provision proposed
in this notice of proposed rulemaking for general third-party
liabilities should be proposed for environmentally-related third-party
liabilities incurred by contractors performing response action work.
H. Damage to or Loss of Government Property.
A similar standard of liability is proposed in DEAR 970.5204-21 for
damage to or loss of government property as for third-party
liabilities. The proposed rule provides that costs resulting from
damage to government property would not be allowable unless the
contractor demonstrates to the contracting officer that they did not
result from: (1) willful misconduct or lack of good faith on the part
of the contractor's managerial personnel; or (2) failure of the
contractor to comply with any appropriate written direction of the
contracting officer to safeguard such property; or (3) failure of the
contractor to establish, maintain or administer an approved property
management system. Further, the contractor may be responsible for and
required to compensate the Government for loss, destruction, or damage
to Government property.
I. Effect of Proposed Rule on Nonprofit Contractors.
Until now, the Department's accountability provisions have not
applied to nonprofit contractors. This proposed rule would apply the
same rules to nonprofit as profit-making contractors. Through this
approach, the Department is expressing its desire that all its
contractors, regardless of business status, must bear responsibility
for employing good business practices and must mitigate risks
associated with potential liabilities. In proposing this change, some
minor distinctions, such as for the definition of managerial personnel
in the Insurance--Litigation and Claims clause, would be recognized for
nonprofit contractors. This definition is necessarily different since
nonprofit contractors usually have a different organizational structure
and different work responsibilities than profit-making contractors. The
Department particularly seeks comment on this part of the proposal.
J. Effect of Proposed Rule on Accountability Rule.
This proposed rule would revise the provisions of the
accountability rule relating to cost reimbursement policies and clauses
contained in DEAR Part 970.
The following changes are proposed:
1. 950.7101, General contract authority indemnity. Paragraph (c)(2)
would be removed.
2. 970.28, would be amended to add a new section 970.2830, Contract
clause, which would prescribe the use of the clause at 970.5204-31,
Insurance--Litigation and Claims.
3. 970.3101-3, General basis for reimbursement of costs.
Subparagraph (a)(1) would be amended to add a reference to FAR 31.201-
3.
4. 970.3102-21, Fines and penalties. This subsection would be
revised.
5. 970.3102-22, Avoidable Costs for Profit Making Contractors. This
subsection would be removed.
6. 970.3103, Contract Clauses. Paragraph (d) would be added.
7. 970.5204-13. Subparagraph (c)(1) would be amended to refer to
FAR 31.201-3.
8. 970.5204-13(d)(4). This paragraph would be amended to add
references to Department of Energy-approved contractor litigation
management procedures and cost guidelines to be included in an Appendix
to the contract.
9. 970.5204-13(d)(9). This paragraph would be amended to add ``and
as allowable under subparagraph (f) of the clause of this contract
entitled, Property.''
[[Page 32591]]
10. 970.5204-13(e)(12). This paragraph concerning fines and
penalties for profit making and nonprofit contractors would be revised.
11. 970.5204-13(e)(17). This paragraph would be reorganized and
revised.
12. 970.5204-13(e)(36). This paragraph would be revised to remove
most of the discussion; the statement that the cost of insurance for an
unallowable cost is an unallowable cost would be retained.
13. 970.5204-14. Subparagraph (c)(1) would be amended to add a
reference to FAR 31.201-3.
14. 970.5204-14(d)(4). This paragraph would be amended to add
references to Department of Energy-approved contractor litigation
management procedures and cost guidelines to be included in an Appendix
to the contract.
15. 970.5204-14(d)(10). This paragraph would be amended to add
``and as allowable under subparagraph (f) of the clause of this
contract entitled Property.''
16. 970.5204-14(e)(10). This paragraph concerning fines and
penalties for profit making and nonprofit contractors would be revised.
17. 970.5204-14(e)(15). This paragraph would be reorganized and
revised.
18. 970.5204-14(e)(34). This paragraph would be revised to remove
most of the discussion; only the statement that the cost of insurance
for an unallowable cost is an unallowable cost would be retained.
19. 970.5204-18, Definition of nonprofit and profit making
management and operating contractors and subcontractors. This
subsection would be removed and reserved.
20. 970.5204-21, Property. Paragraphs (e), (f), (g), (i) and (j)
would be revised; the definition of contractor's managerial personnel
which previously appeared at the end of paragraph (f) would appear as
paragraph (j).
21. 970.5204-31, Litigation and claims. This subsection would be
removed and a new subsection, Insurance--Litigation and Claims, would
be added in its place.
22. 970.5204-32, Required bond and insurance-exclusive of
Government property. This subsection would be removed and reserved.
23. 970.5204-55, Ceiling on certain liabilities for profit making
contractors. This subsection would be removed and reserved.
24. 970.5204-56, Determining avoidable costs. This subsection would
be removed and reserved.
25. 970.5204-61, Cost prohibitions related to legal and other
proceedings. This subsection would be amended to add a new paragraph
(h).
26. 970.5204-XX, Preexisting Conditions. This subsection would be
added.
Item III--Make-or-buy Decisions
The Department of Energy expects its management and operating
contractors to operate the Department's laboratories, weapons
production plants, and other facilities in a cost-effective and
efficient manner. In addition to maximizing the productivity of
existing operations, contractors are expected to critically analyze all
of the functions performed at a facility to identify the most efficient
and cost effective manner in which these functions may be performed,
with an emphasis on subcontracting. Accordingly, the Department
proposes that contracts for the management and operation of the
Department's facilities require the contractor to prepare and
administer a master make-or-buy plan consistent with the Department's
expectations.
Because subcontracting decisions by a management and operating
contractor can result in the displacement of workers in, or a
restructuring of, the current work force, the Department would expect
its contractors to assess subcontracting opportunities and implement
subcontracting decisions in a manner which (1) promotes open
communications early in and throughout the planning process between and
among the parties affected by such subcontracting decisions and (2)
mitigates the social and economic impacts of subcontracting decisions,
consistent with the Department's commitments and responsibilities under
Section 3161 of the National Defense Authorization Act for Fiscal Year
1993 (42 U.S.C. 7274h). The policy proposed today addresses the
application, submission, review, and acceptance of make-or-buy plans
under management and operating contracts, including considerations
relating to subcontracting activities which result in the displacement
of the existing contractor work force.
The following changes are proposed:
1. 970.1507, Make-or-Buy Plans. A new section would be added to
Subpart 970.15, Contracting by Negotiation, consisting of Subsection
970.1507-2, Requirements, and Subsection 970.1507-3, Contract Clause.
Subsection 970.1507-1, Policy, would provide the basic policy of the
Department that its management and operating contractors operate the
facility or site on a least-cost basis. Subsection 970.1507-2,
Requirements, would provide broad guidance on key elements of the make-
or-buy plan submission, approval and evaluation process. Subsection
970.1507-3, Contract Clauses, would provide the contracting officer
with guidance on the application of the clauses to be included in
contracts.
2. 970.5204-XX, Make-or-Buy Plan. A new subsection would be added
to provide a contract clause to be used in management and operating
contracts governing the submission and approval of contractor make-or-
buy plans, and changes to the approved make-or-buy plan.
3. 970.5204-XX, Displaced Employee Hiring Preference. A new
subsection would be added to provide a contract clause to be used in
management and operating contracts describing hiring preferences for
certain employees affected by the downsizing of a Department of Energy
defense nuclear facility.
Item IV--Payment of Fee
With regard to the Government's payment of fixed-fee, base fee, and
award fee under a management and operating contract, the clause at DEAR
970.5204-16, Payments and Advances, would be revised to give the
contracting officer the option to either pay fee through draw downs
against the special financial institution account or by direct payment.
Prior written approval of the contracting officer for fee payment to be
withdrawn against the letter-of-credit is also proposed. This would
allow the Department the latitude to make fee payments in the most cost
effective manner; i.e., draw downs, but retain the option to pay fee by
direct payment if circumstance so warrant. Additionally, language would
be added allowing the contracting officer to offset against any such
fee payment the amounts owed to the Government by the contractor,
including any amounts owed for disallowed costs under the contract.
The following change is proposed:
970.5204-16, Payments and advances. This subsection would be
revised to permit the contracting officer to either pay fee through
draw downs against special financial institution accounts or by direct
payment. In addition, contracting officer approval is proposed for fee
payment to be withdrawn against a letter of credit.
Item V--Laws, Regulations, and DOE Directives
The Department is proposing a revised DEAR clause entitled, Laws,
Regulations, and DOE Directives, as part of its contract reform
efforts. The proposed clause would standardize the
[[Page 32592]]
manner in which applicable requirements are included in its management
and operating contracts.
Paragraph (a) would provide that the contractor is obligated to
comply with applicable Federal, State, and local laws and regulations,
unless relief has been granted in writing by the appropriate regulatory
agency. In addition, this paragraph would provide that a List of
Applicable Laws and Regulations identifying all applicable Federal,
state, and local laws and regulations may be appended to the contract,
but the contractor would not be excused from compliance with applicable
laws and regulations in the event the Department omitted a law or
regulation from the List. Paragraph (b) would provide for the inclusion
of a List of Applicable Directives containing a listing of DOE
directives, or parts thereof, applicable to a particular contract on
the effective date of the contract, and as discussed below, would
explain the mechanism to be used by the Department to revise the List.
This List might include Department orders and other written
requirements such as Department of Energy Notices.
Development of both lists would be aided by efforts to tailor
Department requirements on environment, safety, and health to the
unique circumstances at particular facilities. The Office of Defense
Programs and Office of Environmental Management have established the
Standards/Requirements Program to identify adequate environmental,
safety, and health protection standards and requirements for selected
facilities and activities and to assess the status of implementation of
those standards/requirements. The environment, safety, and health
requirements for Department sites, facilities, and activities would be
documented in Standards/Requirements Identification Documents (SRIDs).
Building on experience with the SRIDs process, the Department
Standards Committee has developed a generic process, called the
Necessary and Sufficient Process, to identify an appropriate set of
standards for a particular facility or activity that would ensure
adequate protection of workers, the public, and the environment.
If the Standards/Requirements identification process or the
Necessary and Sufficient Process has been concluded before a contract
is executed, the resulting SRID or Necessary and Sufficient set of
standards should be used as the basis for developing the lists of
environment, safety, and health requirements.
Paragraph (b) would provide that when the contracting officer
decides to revise the List of Applicable Directives in any way, the
contractor is given the opportunity to assess and advise the
contracting officer of the potential impact of such revision. Revisions
to the List of Applicable Directives would be made in accordance with
the Changes clause of the contract.
If the SRID or Necessary and Sufficient set of standards is
developed and approved after execution of the contract, it would be
incorporated into the contract pursuant to proposed paragraph (c), and
would substitute for environment, safety, and health requirements
identified on the pre-existing List of Applicable Directives, as
appropriate, for the work activities subject to the approved SRID or
Necessary and Sufficient set of standards.
As background for those wishing to comment on this proposed clause,
information on the SRID development process and the Necessary and
Sufficient process is available in the Department's Freedom of
Information Act Reading Room, where public information for this notice
of proposed rulemaking is available.
Information and background on the SRID development process may be
found in the Department of Energy Implementation Plan in response to
the Defense Nuclear Facilities Safety Board Recommendation 90-2
(Revision 5; November 1994), and in Standards/Requirements
Identification Document Development and Approval Instruction (September
1994). The Necessary and Sufficient Closure Process is described in
Department of Energy Closure Process for Necessary and Sufficient Set
of Standards (M450.3-1, January 25, 1996).
The following changes are proposed:
1. 970.04, Administrative Matters. A new section 970.0470,
Department of Energy Directives, would be added, describing the
Department of Energy directives system.
2. 970.5204-XX, Laws, Regulations, and DOE Directives. A new
subsection would be added to provide a clause to identify directives
and related requirements applicable to a specific contract.
Item VI--Environment
DEAR 970.5204-2 and the clause therein would be retitled to add
``Environment'' to their titles, reflecting the broadening of the
clause to add this subject related to safety and health. The revised
clause would call for compliance with applicable laws and regulations
and, in conjunction with the clause on Departmental directives
discussed elsewhere in this proposed rule, identify more specifically
the Department of Energy directives with which a contractor is to
comply than does the existing clause at DEAR 970.5204-2. The clause
would change from 30 days to 60 days the period by which an
Environment, Safety, and Health (ES&H) Management Plan is to be
submitted, provide for the Plan to be periodically updated, and make
changes to the Plan subject to the Government-approved change control
process applicable to the contract. Successful application of the
clause would require that: 1) Department of Energy Operations Office
Managers establish contractor expectations for ES&H performance prior
to the program execution year; 2) contractors develop an ES&H
Management Plan that describes the management and program activities
that would be conducted to meet those expectations and that the
contractor would commit to undertake; 3) Department of Energy
Operations Office Manager approve the Plan; and 4) ES&H performance
measures flow from the Plan, target major risk management issues, and
tie explicitly to incentives and fees. The ``stop work'' provisions of
the clause would be revised to enhance their clarity. Guidance for the
flowdown of environment, safety, and health requirements in
subcontracts to be performed on-site would be provided. Also, paragraph
(d) would be added requiring the submission and approval of an
Authorization Agreement for certain facilities and/or site operations
as determined by the contracting officer. Authorization Agreements
might be used to establish, document, and control the safety
requirements and other parameters for specified operations. Paragraph
(d) would also require that: 1) contracting officers may at any time
notify the contractor that specified operations may require an
Authorization Agreement; 2) specified operations may proceed only
subject to the requirements of a Department of Energy-approved
Authorization Agreement; and 3) updates and changes to an Authorization
Agreement shall be subject to Department of Energy approval.
Authorization Agreements would be subject to the same ``stop work'' and
fee and awards payment criteria established for the ES&H Management
Plan. This paragraph is intended to be responsive to the Defense
Nuclear Facilities Safety Board (DNFSB) Recommendation 95-2 regarding
integrated safety management. Additional changes to contract language
may be required as a result of the Department's implementation plan for
DNFSB Recommendation 95-2.
[[Page 32593]]
Alternate clause paragraph (b) would provide for the use of an
alternate version of the clause in contracts that do not incorporate
clauses referenced in the basic Environment, Safety and Health clause.
Several clauses dealing with environment, safety, or health would
be consolidated for the sake of simplification and overall consistency.
Three clauses proposed, DEAR 970.5204-2, Environment, Safety, and
Health; DEAR 970.5204-XX, Ownership of Records; and DEAR 970.5204-XX,
Laws, Regulations, and DOE Directives, would incorporate requirements
from four existing clauses the Department proposes to remove from its
regulation: DEAR 970.5204-2, Safety and Health; DEAR 970.5204-26,
Nuclear Facility Safety; DEAR 970.5204-41, Preservation of Individual
Occupational Radiation Exposure Records; and DEAR 970.5204-62,
Environmental Protection. For instance, the provisions in the Safety
and Health clause would be consolidated in DEAR 970.5204-2,
Environment, Safety, and Health. The Department proposes to remove the
Nuclear Facility Safety clause, since most of the provisions of the
Nuclear Facility Safety clause are, or will be, incorporated in other
Departmental rulemakings (see 10 CFR Parts 830, 834, and 835). These
other Departmental rulemakings will also be available for public
comment as they are developed. Removal of the Nuclear Facility Safety
clause would be contingent upon the final promulgation of Part 830. The
Department proposes to remove the clause entitled, Preservation of
Individual Occupational Radiation Exposure Records, and place the
substance of the clause in DEAR 970.5204-XX, Ownership of Records. It
is also noted that the removed clause's requirements would be
encompassed within 10 CFR Part 835. The Department proposes to remove
DEAR 970.5204-62, Environmental Protection, because the list of
applicable laws, regulations, and directives cited therein would be
included in the contract pursuant to proposed paragraph (a) of DEAR
970.5204-XX, Laws, Regulations, and DOE Directives. The language,
``assist the DOE in complying'' contained in paragraph (b) of 970.5204-
62, would be added to DEAR 970.5204-2, Environment, safety, and health.
The following changes are proposed:
1. 952.223-71, Safety and health. This subsection would be
clarified so that it is consistent with 970.5204-2, Safety and Health,
for non-management and operating contracts.
2. 970.2303-2, Clauses. Paragraphs (c), (d), and (e), prescribing
clauses at 970.5204-26, 970.5204-41, and 970.5204-62, respectively,
would be removed, since these clauses would also be removed.
3. 970.5204-2, Safety and health. Environmental requirements would
be added to those for safety and health in this clause.
4. 970.5204-26, Nuclear facility safety. This clause would be
removed.
5. 970.5204-41. Preservation of individual occupational radiation
exposure records. This clause would be removed.
6. 970.5204-62, Environmental protection. This clause would be
removed.
Item VII--Ownership of Records
The Ownership of Records clause proposed today sets forth the
government's ownership of, and control over, those records the creation
or acquisition of which by the contractor was paid for by the
government. This clause would preserve the government's access and
copying rights to such records during the contract term and ensure
continuity at sites by giving the Department the records upon
termination or completion of the contract. Additionally, consistent
with the Department's implementing requirements (59 FR 63882, December
12, 1994) for the Freedom of Information Act (FOIA), the ownership
provision in paragraph (a) of the clause would grant public access to
contractor-generated or acquired records, subject only to the two
specified exceptions in the FOIA rule (privileged and commercially
valuable information) and to the statutory exemptions in the Freedom of
Information Act.
Generally, all records generated or acquired by the contractor in
connection with work performed under management and operating contracts
have been considered the property of the Government. Conversely, the
Department recognizes that under this principle, a contractor may
request that the Department restrict its rights with respect to
documents for which the contractor would not seek reimbursement from
the Department under the contract. Nonetheless, over time, contractors
have requested that certain, limited categories of records be the
property of the contractors. The Department proposes that some of these
categories may be appropriate for contractor ownership, subject to the
Department's rights of audit, inspection, and copying.
The proposed clause, therefore, would ensure that the Department's
right to obtain and determine the disposition of contractor-owned
documents be maintained. For instance, the Department must have access
to contractor medical and personnel records when the Department has
determined that such access is necessary to enable the Department to
carry out its public health and safety responsibilities under existing
law. The Department has made such determinations in the area of health-
related research, including epidemiological research performed by the
Department or other public health agencies, and in connection with the
Department's evaluation of a contractor's performance of environment,
safety, and health requirements. In the past, government access to
records on individuals has been restricted to protect the privacy
interests of the individuals, based on state law. The clause
recognizes, however, that federal law preempts state law in this area,
and that in any event, the government's use of such records would be
consistent with applicable federal laws, including the Privacy Act.
The categories of records proposed in this clause as eligible for
contractor ownership, in paragraph (b), are intended to be restricted
to only those contained in the clause. Paragraph (c) of the clause
would delineate the Department's rights to obtain the documents; the
Department anticipates that certain of these documents would be
routinely provided to the Department under the contract.
The following changes are proposed:
1. 970.0407, Alternate retention schedules. This section would be
redesignated 970.0407-1.
2. 970.0407-2, Ownership of records. This subsection would be added
to explain the circumstances in which contractor ownership of certain
records may be identified in a management and operating contract.
3. 970.5204-XX, Ownership of records. A clause would be added to
identify government-owned records; contractor-owned records; the
government's rights to inspection, copying, use, and audit of records;
and records retention requirements under the contract.
Item VIII--Management and Operating Contract Overtime Practices
The Contract Reform Report identified weaknesses in the
Department's management of contractor overtime costs. While
acknowledging that overtime can save money compared to not doing the
job at all or hiring new permanent workers, it can also be abused. In
order to better manage these resources and to ensure that management
and operating contractors
[[Page 32594]]
balance the efficient use of human resources and the need to adequately
compensate its work force with effective cost control of overtime, the
Department is proposing an approach for assuring overtime costs are
reasonable. Individual contractor overtime practices exceeding
specified criteria would trigger a requirement for the contractor to
develop an overtime control plan, with the contractor establishing
specific controls for the use and evaluation of overtime. The
Department proposes to require the plan, on an annual basis, if one of
the following criteria are met: (1) the contractor exceeds the
Department's management and operating contract median overtime usage
plus 2%; or (2) the contractor's overtime usage as a percentage of
payroll exceeds the DOE contractor median and the contractor's policy
permits payment of overtime premiums for exempt employees earning equal
to or greater than $45,000 per annum; or (3) the contractor's overtime
usage as a percentage of payroll exceeds the DOE contractor median and
the contractor permits overtime payments on any basis other than hours
worked in excess of 40 hours per week. In 1994, the median overtime
experienced by the Department's management and operating contractors
was 3.09% of base payroll expenditures; in 1993, it was 3.16%.
The following changes are proposed:
1. 970.2275. A new section, Overtime management, would be added.
2. 970.2275-1. A new subsection would be added to describe the
criteria under which a management and operating contract may incur
overtime without further management controls. Management and operating
contractors that exceed these overtime criteria would be required to
develop and comply with a plan to report and control overtime.
3. 970.2275-2. A new subsection would be added to give the
prescription for use of an overtime management clause.
4. 970.5204-XX. A new clause on overtime management would be added.
III. Procedural Requirements
A. Review Under Executive Order 12866
This regulatory action has been determined not to be a
``significant regulatory action'' under Executive Order 12866,
``Regulatory Planning and Review,'' (58 FR 51735, October 4, 1993).
Accordingly, this action was not subject to review, under that
Executive Order, by the Office of Information and Regulatory Affairs of
the Office of Management and Budget (OMB).
B. Review Under Executive Order 12988
With respect to the review of existing regulations and the
promulgation of new regulations, section 3(a) of Executive Order 12988,
``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on
Executive agencies the general duty to adhere to the following
requirements: (1) eliminate drafting errors and ambiguity; (2) write
regulations to minimize litigation; and (3) provide a clear legal
standard for affected conduct rather than a general standard and
promote simplification and burden reduction. With regard to the review
required by section 3(a), section 3(b) of Executive Order 12988
specifically requires that Executive agencies make every reasonable
effort to ensure that the regulation: (1) clearly specifies the
preemptive effect, if any; (2) clearly specifies any effect on existing
Federal law or regulation; (3) provides a clear legal standard for
affected conduct while promoting simplification and burden reduction;
(4) specifies the retroactive effect, if any; (5) adequately defines
key terms; and (6) addresses other important issues affecting clarity
and general draftsmanship under any guidelines issued by the Attorney
General. Section 3(c) of Executive Order 12988 requires Executive
agencies to review regulations in light of applicable standards in
section 3(a) and section 3(b) to determine whether they are met or it
is unreasonable to meet one or more of them. The Department of Energy
has completed the required review and determined that, to the extent
permitted by law, the proposed regulations meet the relevant standards
of Executive Order 12988.
C. Review Under the Regulatory Flexibility Act
This proposed rule was reviewed under the Regulatory Flexibility
Act of 1980, 5 U.S.C. 601, et seq., which requires preparation of a
regulatory flexibility analysis for any rule that is likely to have a
significant economic impact on a substantial number of small entities.
This proposed rule is intended to provide policies for the Department
of Energy's management and operating contractors, who are all large
businesses. There are three clauses proposed which identify flowdown
requirements to subcontractors, some of whom may be small businesses.
(1) The clause at 970.5204-2, Environment, Safety, and Health, would
provide for the flowdown of ``appropriate requirements'' to
subcontractors performing work on-site at a Department-owned or -leased
facility. (2) The clause at 970.5204-XX, Laws, Regulations, and DOE
Directives, would provide for subcontract compliance with ``necessary
provisions'' as determined by the prime contractor. (3) The clause at
970.5204-XX, Ownership of Records, would specify requirements for
certain subcontractors meeting specific thresholds. The first two
clauses do not impose a significant economic impact since nearly all of
the prime and subcontracts have been cost reimbursement contracts. The
third clause has considered the needs of small business in establishing
thresholds above which requirements must be met. The Department
anticipates that most small businesses will not meet these threshold
requirements for compliance. Based on this review, the Department
certifies that this proposed rule will not have a significant economic
impact on a substantial number of small entities and, therefore, no
regulatory flexibility analysis has been prepared.
D. Review Under the Paperwork Reduction Act
No new information collection or recordkeeping requirements are
imposed by this proposed rule. Accordingly, no Office of Management and
Budget clearance is required under the Paperwork Reduction Act of 1980
(44 U.S.C. 3501, et seq.).
E. Review Under Executive Order 12612
Executive Order 12612, entitled ``Federalism,'' 52 FR 41685
(October 30, 1987), requires that regulations, rules, legislation, and
any other policy actions be reviewed for any substantial direct effects
on States, on the relationship between the Federal Government and the
States, or in the distribution of power and responsibilities among
various levels of government. If there are sufficient substantial
direct effects, then the Executive Order requires preparation of a
federalism assessment to be used in all decisions involved in
promulgating and implementing a policy action. The Department has
determined that this proposed rule will not have a substantial direct
effect on the institutional interests or traditional functions of
States.
F. Review Under the National Environmental Policy Act
Pursuant to the Council on Environmental Quality Regulations (40
CFR 1500-1508), the Department has established guidelines for its
compliance with the provisions of the National Environmental Policy Act
(NEPA) of 1969 (42 U.S.C. 4321, et seq.). Pursuant to Appendix A of
Subpart D of 10 CFR 1021, National Environmental
[[Page 32595]]
Policy Act Implementing Procedures (Categorical Exclusion A6), the
Department has determined that this proposed rule is categorically
excluded from the need to prepare an environmental impact statement or
environmental assessment.
IV. Opportunities for Public Comment
A. Written Comments
Interested persons are invited to participate by submitting data,
views, or arguments with respect to the DEAR amendments set forth in
this proposed rule. Three copies of written comments should be
submitted to the address indicated in the ADDRESSES section. Comments
on the major items identified in this proposed rule should be
identified on separate pages, with the name of the item at the top of
each page. In addition, it is requested that you provide a copy of your
comments on a WordPerfect 6.1 or ASCII diskette. Comments may be sent
to the Internet address in the ADDRESSES section of this proposed rule
instead of the written copies and diskette, provided they are
transmitted in a WordPerfect 6.1 compatible format and include the
name, title, organization, postal address, and Internet address with
the text of the comments. All comments received will be available for
public inspection in the Department of Energy Reading Room, 1E-190,
Forrestal Building, 1000 Independence Avenue, SW., Washington, D.C.
20585, between the hours of 9 a.m. and 4 p.m., Monday through Friday,
except Federal holidays. All written comments received on or before the
date specified in the beginning of this proposed rule and all other
relevant information will be considered by the Department before taking
final action. Comments received after that date will be considered to
the extent that time allows. Any person submitting information which
that person believes to be confidential and which may be exempt from
public disclosure should submit one complete copy, as well as an
additional copy from which the information claimed to be confidential
has been deleted. The Department reserves the right to determine the
confidential status of the information or data and to treat it
according to its determination. The Department's generally applicable
procedures for handling information which has been submitted in a
document and may be exempt from public disclosure are set forth in 10
CFR 1004.11.
B. Public Hearing
1. Request to Speak Procedures
A public hearing on the proposed rule will be held at 9:30 a.m. on
August 1, 1996, in the Main Auditorium of the Forrestal Building, 1000
Independence Avenue, SW, Washington, DC 20585. Oral presentations on
both this proposed rule and the proposed rule on fees for management
and operating contractors published elsewhere in this Federal Register
will be heard at that time.
Any person who has an interest in the proposed rule or who is a
representative of a group or class of persons who has an interest in
the proposed rule may request an opportunity to make an oral
presentation. A request to speak at the public hearing should be
addressed to the address indicated at the beginning of this proposed
rule. The person making the request should briefly describe his or her
interest in the proceedings and, if appropriate, state why the person
is a proper representative of a group. The person should also provide a
telephone number where he or she may be reached during the day. Two
copies of the speaker's statement should be brought to the hearing. In
the event any person wishing to testify cannot meet this requirement,
alternative arrangement can be made in advance.
2. Conduct of the Hearing
DOE reserves the right to select persons to be heard at the
hearing, to schedule their respective presentations, and to establish
procedures governing the conduct of the hearing. To ensure that all
persons wishing to make a presentation can be heard, each speaker will
be limited to 10 minutes to present comments on this proposed rule.
Speakers who wish to provide further information for the record should
submit such information in writing.
A Department of Energy official will preside at the hearing. This
will not be a judicial or evidentiary hearing. It will be conducted in
accordance with 5 U.S.C. 553 and section 501 of the Department of
Energy Organization Act, 42 U.S.C. 7191.
Questions may be asked only by those conducting the hearing. Any
further procedural rules needed for the proper conduct of the hearing
will be announced by the presiding officer. DOE reserves the right to
change the location, date, and procedures for this hearing. If DOE must
cancel the public hearing, DOE will make every effort to publish an
advance notice of such cancellation in the Federal Register. Actual
notice of cancellation will also be given to all persons scheduled to
speak. The hearing date may be canceled in the even no member of the
public requests the opportunity to make an oral presentation.
A transcript of the hearing will be made by DOE and made available
as part of the administrative record for this rulemaking. It will be on
file for inspection at the DOE Freedom of Information Reading Room,
Forrestal Building, 1000 Independence Avenue, SW, Washington, DC 20585,
between the hours of 9 a.m. and 4 p.m., Monday through Friday, except
Federal holidays. Any person may purchase a copy of the transcript from
the hearing reporter.
List of Subjects in 48 CFR Parts 917, 950, 952, 970
Government procurement.
Issued in Washington, D.C., on June 7, 1996.
Richard H. Hopf,
Deputy Assistant Secretary for Procurement and Assistance Management.
For the reasons set forth in the preamble, Chapter 9 of Title 48 of
the Code of Federal Regulations is proposed to be amended as set forth
below.
PART 917--SPECIAL CONTRACTING METHODS
1. The authority citation for Part 917 continues to read as
follows:
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).
2. Section 917.600 is amended by adding the following sentences at
the end of the paragraph:
917.600 Scope of subpart.
* * * The requirements of this subpart apply to any Department of
Energy management and operating contract, including performance-based
management contracts as defined in 48 CFR (DEAR) 917.601. References in
this subpart to ``management and operating contracts'' shall be
understood to include performance-based management contracts.
3. Subpart 917.6, Management and Operating Contracts, is amended to
add new section 917.601, Definitions, to read as follows:
917.601 Definitions.
Performance-based management contract means a management and
operating contract that employs, to the maximum extent practicable,
performance-based contracting concepts and methodologies through the
application of results-oriented statements of work; clear, objective
performance standards and measurement tools; and incentives to
[[Page 32596]]
encourage superior contractor performance.
PART 950--EXTRAORDINARY CONTRACTUAL ACTIONS
4. The authority citation for Part 950 continues to read as
follows:
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).
950.7101 [Amended]
5. Section 950.7101 is amended by removing paragraph (c)(2) and
redesignating paragraph (c)(1) as (c).
PART 952--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
6. The authority citation for Part 952 is revised to read as
follows:
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).
7. Section 952.223-71 is amended by revising the section heading
and adding the following sentence at the end of the paragraph to read
as follows:
952.223-71 Environment, safety and health.
* * * Replace clause paragraph (b) with the following:
(b) The contractor shall comply with applicable Federal, State,
and local environmental, safety, and health laws and regulations,
and with DOE directives identified in writing by the contracting
officer. The contractor shall cooperate with Federal and non-Federal
agencies having jurisdiction over environmental, safety, and health
matters under this contract.
PART 970--DOE MANAGEMENT AND OPERATING CONTRACTS
8. The authority citation for Part 970 continues to read as
follows:
Authority: Sec. 161 of the Atomic Energy Act of 1954 (42 U.S.C.
2201), sec. 644 of the Department of Energy Organization Act, Public
Law 95-91 (42 U.S.C. 7254).
970.0407 [Removed]
9. Section 970.0407, Records retention requirements, is removed.
10. New subsection 970.0407-1, Alternate retention schedules, is
added to read as follows:
970.0407-1 Alternate retention schedules.
Records produced under the Department's contracts involving
management and operation responsibilities relative to DOE-owned or -
leased facilities are to be retained and disposed of in accordance with
the requirements of DOE Order 1324.5 rather than those set forth at
subpart 4.4 of the Federal Acquisition Regulation.
11. New section 970.0407-2, Ownership of records, is added to read
as follows:
970.0407-2 Ownership of records.
Contracting officers may agree to contractor ownership of the
categories of records designated in the instruction in paragraph (b) of
48 CFR (DEAR) 970.5204-XX, Ownership of Records, so long as such
agreements do not limit the Government's right to inspect, copy, and
audit these records. Right of inspection, copying, and audit must be
maintained in order to protect the public interest and meet the
Department's statutory reporting requirements.
12. New section 970.0470-3, Contract clause, is added to read as
follows:
970.0470-3 Contract clause.
The contracting officer shall insert the clause at 48 CFR (DEAR)
970.5204-XX, Ownership of records, in management and operating
contracts where the contractor wishes to retain ownership of certain
records. Contracts containing the clause at 48 CFR (DEAR) 970.5204-XX,
Ownership of Records, shall also include the clauses at 48 CFR (DEAR)
970.5203-2, Inspection of records by the Comptroller General, and 48
CFR (DEAR) 970.5204-9, Accounts, records and inspection.
13. New section 970.0470, Department of Energy Directives,
consisting of subsections 970.0470-1 and 970.0470-2, is added to read
as follows:
970.0470 Department of Energy Directives.
970.0470-1 General.
970.0470-2 Contract clause.
970.0470-1 General.
(a) The Department of Energy Directives system is the system of
instructions, including orders, notices, manuals, guides, and
standards, for Departmental elements. In certain circumstances,
requirements contained in these directives may apply to a contractor
through operation of a contract clause. Program and requirements
personnel are responsible for identifying requirements applicable to a
contract, developing the list, and providing the list to the
contracting officer for inclusion in the contract.
(b) If the contract relates to facilities or activities that have
been the subject of a completed review using the Standards/Requirements
Identification process or the Necessary and Sufficient process, the
environment, safety, and health portion of the list should be developed
using the approved Standards/Requirements Identification Document or
Necessary and Sufficient set of standards. If the Standards/
Requirements Identification process or the Necessary and Sufficient
process is completed with regard to facilities or activities covered by
the contract after the contract is executed, the approved Standards/
Requirements Identification Document or Necessary and Sufficient set of
standards should be used in developing the environment, safety, and
health portion of the list, as appropriate.
970.0470-2 Contract clause.
The contracting officer shall insert the clause at DEAR 970.5204-
XX, Laws, Regulations, DOE Directives, in management and operating
contracts.
14. Section 970.1001 is revised to read as follows:
970.1001 Performance-based statements of work, criteria, and measures.
(a) It is the policy of the Department of Energy to use, to the
maximum extent practicable, performance-based contracting in its
management and operating contracts. The use of performance-based
statements of work, where feasible, is the preferred method for
establishing work requirements. Statements of work, work
authorizations, and other documents describing contractor work activity
should describe performance requirements and expectations in terms of
outcome, results, or final work products, as opposed to methods,
processes, design, or broad statements or categories of work activity.
(b) Performance criteria, measures, and incentives shall be
structured to correspond to the performance requirements established in
the statement of work, work authorization, or other such document.
970.1002 [Amended]
15. The section heading for section 970.1002 is revised to read,
``Additional considerations.''
16. Subpart 970.15 is amended by adding new section 970.1507, Make-
or-Buy Plans, consisting of 970.1507-1, 970.1507-2, and 970.1507-3, to
read as follows:
970.1507 Make-or-buy Plans
970.1507-1 Policy.
970.1507-2 Requirements.
970.1507-3 Contract clauses.
970.1507-1 Policy.
(a) Contracting officers shall require management and operating
contractors to develop and implement make-or-buy plans that establish a
preference for providing property or services (including construction
and construction management) on a least-cost basis, subject to program
specific make-or-buy criteria. The emphasis of this make-or-buy
structure is to
[[Page 32597]]
eliminate bias for in-house performance where an activity may be
performed at less cost or otherwise more efficiently through
subcontracting.
(b) In developing and implementing its make-or-buy plan, a
contractor shall be required to assess subcontracting opportunities and
implement subcontracting decisions in accordance with the following:
(1) The contractor shall actively support internal productivity
improvement and cost-reduction programs so that in-house performance
options can be made more efficient and cost-effective.
(2) The contractor shall consider subcontracting opportunities with
the maximum practicable regard for open communications with potentially
affected employees and their representatives. Similarly, contractors
will openly discuss their plans, activities, cost-benefit analyses, and
decisions with the many stakeholders affected by such decisions,
including representatives of the community and local businesses.
(3) Consistent with Section 3161 of the National Defense
Authorization Act for Fiscal Year 1993 (42 U.S.C. 7274h), the
contractor shall mitigate the social and economic impacts of
subcontracting decisions, including work force displacement or
restructuring, to the extent practicable. Mitigation shall include the
requirement for hiring preferences in a subcontract (see 48 CFR (DEAR)
970.5204-XX, Displaced Employee Hiring Preference). Potential work
force displacement may require the Department of Energy to prepare a
work force restructuring plan. The contractor shall implement the plan,
which may require the following initiatives for eligible workers
consistent with the objectives of Section 3161: retraining, early
retirement or other options to avoid lay-offs; retraining for new
missions; outplacement assistance, including tuition reimbursement;
relocation assistance; and 60 days individual layoff notice.
970.1507-2 Requirements.
(a) Development of program-specific make-or-buy criteria. DOE
programmatic sponsors of the work conducted at the facility or site
shall develop program specific make-or-buy criteria. Program specific
make-or-buy criteria are those factors that reflect specific mission or
program objectives (including operational efficiency, contractor
diversity, environment, safety and health, work force displacement and
restructuring, and collective bargaining agreements) and that, upon
their application to a specific work effort, would obviate a decision
based on a purely economic (i.e., least-cost) rationale. These criteria
are to be used to assess each work effort identified in a facility's or
site's make-or-buy plan to determine the appropriateness of a
contractor's make-or-buy decisions. Program specific make-or-buy
criteria shall be provided to the contractor for use in developing a
master make-or-buy plan for the facility, site, or specific program, as
appropriate.
(b) Make-or-buy plan property and services. Property or services
estimated to cost less than one (1) percent of the estimated total
operating cost for a year or $1 million for the same year, whichever is
less, generally should not be included in the contractor's make-or-buy
plan. However, adjustments may be made to these thresholds where
programmatic or cost considerations would indicate that a particular
supply or service should be included in the master plan.
(c) Submission of make-or-buy plans. The contracting officer shall
require the contractor to submit an initial plan and all plan updates
for DOE approval. For newly awarded contracts, the contracting officer
shall require the contractor to submit to the contracting officer the
master make-or-buy plan for approval not later than 180 days after
contract award. Where existing contracts are to be renewed with the
incumbent contractor, the contracting officer shall require the
contractor to submit a master make-or-buy plan during the negotiation
of the contract extension. The contracting officer shall modify
existing contracts that have a remaining term of at least two (2) years
to include a requirement for a contractor make-or-buy plan. Evaluation
and approval of such a plan should occur as part of the annual work
plan/budget negotiations. Once approved, make-or-buy plans shall remain
effective for the term of the contract (up to a period of five years),
unless circumstances warrant a change. The contracting officer shall
require the contractor to update the plan whenever changed
circumstances occur or significant new work not identified or
contemplated at the time of approval of the initial plan is initiated.
(d) Evaluation of the contractor's make-or-buy plan. In evaluating
the contractor's make-or-buy plan, the contracting officer shall
consider the following factors:
(1) The program specific make-or-buy criteria with particular
attention to the effect of a ``buy'' decision on the contractor's
ability to maintain core competencies needed to operate the site or
facility;
(2) The impact of a ``make'' or ``buy'' decision on contract cost,
schedule, and performance and financial risk;
(3) The potential impact of a ``make'' or ``buy'' decision on known
future mission or program activities at the facility or site;
(4) Past experience at the facility or site regarding ``make-or-
buy'' decisions for the same, or similar, supplies or services;
(5) Consistent with the contractor's approved subcontracting plan,
whether small, small disadvantaged, or other minority owned businesses
will be afforded maximum practicable opportunity to compete for work
that is subcontracted;
(6) Local market conditions, including contractor work force
displacement and the availability of firms that can meet the work
requirements with regard to quality, quantity, cost, and timeliness;
(7) Where the construction of new or additional facilities is
required, that the cost of such facilities is in the Government's best
interest when compared to subcontracting or privatization alternatives;
and
(8) Whether all relevant requirements and costs of performing the
work by the contractor and through subcontracting are considered and
any different requirements for the same work are reconciled.
(e) Approval. The contracting officer shall approve all plans and
updates. Once approved, make-or-buy plans shall remain effective for
the term of the contract (up to a period of five years), unless
circumstances warrant a change.
(f) Administration. The contractor's performance against the
approved make-or-buy plan shall be monitored to ensure that
(1) The contractor is complying with the plan;
(2) Items identified for deferral decisions are addressed in a
timely manner; and
(3) The contractor periodically updates the make-or-buy plan based
on changed circumstances or significant new work.
970.1507-3 Contract clauses.
(a) The contracting officer shall insert the clause at 48 CFR
(DEAR) 970.5204-XX, Make-or-Buy Plan, in management and operating
contracts.
(b) The contracting officer shall insert the clause at 48 CFR
(DEAR) 970.5204-XX, Displaced Employee Hiring Preference, in management
and operating contracts.
17. New section 970.2275, consisting of subsections 970.2275-1 and
970.2275-2, is added to read as follows:
[[Page 32598]]
970.2275 Overtime management.
970.2275-1 General.
(a) Contracting officers shall require an overtime control plan
from contractors whose overtime premium funds meet any one of the
following criteria:
(1) They exceed the DOE management and operating contract median
overtime expenditures for the preceding calendar year plus 2%;
(2) They exceed the DOE management and operating contractor median
overtime expenditures for the preceding calendar year and the
contractor's policy permits payment of overtime premiums for exempt
employees earning equal to or greater than $45,000 per annum; or,
(3) They exceed the DOE management and operating contractor median
overtime expenditures for the preceding calendar year and the
contractor permits overtime payments on any basis other than hours
worked in excess of 40 hours per week.
(b) The overtime control plan shall be on an annual basis and
approved by DOE. It shall include submission of a semi-annual report on
overtime usage to the contracting officer and implementation of an
effective management evaluation program to assure that overtime usage
is in accordance with the approved overtime control plan.
970.2275-2 Contract clause.
The contracting officer shall insert the clause at 48 CFR (DEAR)
970.5204-XX, Overtime Management, in management and operating contracts
and contracts with advance understandings on cost.
970.2302-2 [Amended]
18. Subsection 970.2303-2 is amended by removing paragraphs (c),
(d), and (e).
19. New section 970.2830 is added to read as follows:
970.2830 Contract clause.
The contracting officer shall insert the clause at 48 CFR (DEAR)
970.5204-31, Insurance--Litigation and Claims, in management and
operating contracts. Individual deviations to 48 CFR (DEAR) 970.5204-
31(h)(1)(i) may be used in contracts with nonprofit organizations when
combined with a reduction in fee and approved by the Procurement
Executive.
20. Section 970.3101-3 is amended by revising paragraph (a)(1) to
read as follows:
970.3101-3 General basis for reimbursement of costs.
(a) * * *
(1) Reasonableness in accordance with FAR 31.201-3;
* * * * *
21. Section 970.3102-21, Fines and penalties, is revised to read as
follows:
970.3102-21 Fines and penalties.
It is Department of Energy policy not to reimburse management and
operating contractors for fines and penalties except as provided in 48
CFR (DEAR) 970.5204-13(e)(12), Allowable Costs and Fixed Fee
(Management and Operating Contracts), 48 CFR (DEAR) 970.5204-14(e)(10),
Allowable Costs and Fixed Fee (Support Contracts), and 48 CFR (DEAR)
970.5204-XX, Preexisting Conditions.
970.3102-22 [Removed]
22. Section 970.3102-22 is removed.
23. Subsection 970.3103, Contract Clauses, is amended to add new
paragraph (d) to read as follows:
970.3103 Contract clauses.
* * * * *
(d) The clause at 970.5204-XX, Preexisting Conditions, shall be
included in management and operating contracts. Alterna
FR Doc. 96-15367 Acquisition Regulation; Department of Energy Management and Operating Contracts
te I of the
clause shall be used in management and operating contracts with
incumbent contractors.
24. Subsection 970.5204-2, Safety and health (Government-owned or
leased) is revised to read as follows:
970.5204-2 Environment, safety, and health.
As prescribed in 48 CFR (DEAR) 970.2303-2(a), insert the following
clause.
Environment, Safety, and Health (Month and Year TBE)
(a) The contractor shall perform the work under this contract in
a manner that ensures adequate protection for workers, the public,
and the environment and shall develop and manage a comprehensive
program in support of these objectives, consistent with its
Environment, Safety, and Health Management Plan and any applicable
Authorization Agreement. The contractor shall exercise a degree of
care commensurate with the risk of harm involved, particularly with
respect to the operation of nuclear facilities, where applicable.
(b) The contractor shall comply with, and assist the Department
of Energy in complying with (where identified by the Department),
(i) all applicable Federal and non-Federal environment, safety, and
health laws, regulations, and (ii) applicable directives identified
in the clause of this contract on Departmental directives. The
contractor shall cooperate with Federal and non-Federal agencies
having jurisdiction over environmental, safety, and health matters
under this contract.
(c) Management plan. The contractor, within 60 days after the
effective date of this contract or the modification incorporating
this clause, shall submit to the contracting officer for review and
approval an Environment, Safety, and Health Management Plan. This
management plan shall contain the management program to be
implemented by the contractor to protect the environment, workers,
and the public. Guidance on preparation of the Management Plan will
be provided by DOE as it may be periodically revised. The contractor
shall annually submit an updated management plan to the DOE for
review and approval reflecting budget decisions and contractor
performance commitments for implementation in the budget execution
year. Revisions to the management plan shall be subject to the
change control process(es) established for the facility(ies) and
activity(ies) managed by the contractor.
(d) Authorization agreement(s). This contract establishes the
agreed-upon safety requirements and other operating safety
parameters for operations covered by the contract, except with
respect to operations for which the contracting officer has notified
the contractor that a separate Authorization Agreement is necessary.
Authorization Agreements may be used to establish, document, and
control the safety requirements and other parameters for specified
operations that ensure adequate protection of the workers, the
public, and the environment. The contracting officer may at any time
notify the contractor that specified operations may proceed only
subject to the requirements of a DOE-approved Authorization
Agreement. Upon such notification, the contractor shall prepare and
submit for DOE approval an Authorization Agreement within the time
frame specified in the notice. Updates and changes to any approved
Authorization Agreement shall be subject to DOE approval.
(e) The contractor shall promptly correct any noncompliance with
applicable environmental or safety and health requirements, the
Management Plan, and any applicable Authorization Agreements. If the
contractor fails to take corrective action or if, at any time, the
contractor's acts or failure to act cause substantial harm or an
imminent danger to the environment or health and safety of employees
or the public, the contracting officer may issue an order stopping
work in whole or in part. Any stop work order issued under this
clause (including a stop work order issued by the contractor to a
subcontractor in accordance with paragraph (f) of this clause) shall
be without prejudice to any other legal or contractual rights of the
Government. Thereafter, an order authorizing the resumption of the
work may be issued at the discretion of the contracting officer. The
contractor shall not be entitled to an extension of time or
additional fee or damages by reason of, or in connection with, any
work stoppage ordered in accordance with this clause.
(f) The contractor shall provide in its purchasing system,
required under the clause of this contract entitled, Contractor
Purchasing System, for policies, practices, and procedures for the
flowdown of appropriate requirements of this clause to
[[Page 32599]]
subcontractors performing work on-site at a DOE-owned or -leased
facility. Such subcontracts shall provide for the right to stop work
under the conditions described in paragraph (e) of this clause.
25. Section 970.5204-13, Allowable costs and fixed-fee (management
and operating contracts), is amended by revising the prescription,
clause paragraphs (c), (d)(4), (d)(9), (e)(12), (e)(17), the note
preceding (e)(36), and (e)(36) to read as follows:
970.5204-13 Allowable costs and fixed-fee (management and operating
contracts).
As prescribed in 48 CFR (DEAR) 970.3103(a), insert the following
clause.
Allowable Costs and Fixed-Fee (Management and Operating Contracts)
(Month and Year TBE)
* * * * *
(c) Allowable costs. The allowable cost of performing the work
under this contract shall be the costs and expenses that are
actually incurred by the contractor in the performance of the
contract work in accordance with its terms, that are necessary or
incident thereto, and are determined to be allowable as set forth in
this paragraph. The determination of allowability of cost shall be
based on:
(1) Reasonableness in accordance with FAR 31.201-3;
(2) Standards promulgated by the Cost Accounting Standards
Board, if applicable; otherwise, generally accepted accounting
principles and practices appropriate to the particular
circumstances; and
(3) Recognition of all exclusions and limitations set forth in
this clause or elsewhere in this contract as to types or amounts of
items of cost. Allowable costs shall not include the cost of any
item described as unallowable in paragraph (e) of this clause except
as indicated therein. Failure to mention an item of cost
specifically in paragraphs (d) or (e) of this clause shall not imply
either that it is allowable or that it is unallowable.
(d) * * *
(4) Reasonable litigation expenses, including counsel fees, if
incurred in accordance with the clause of the contract entitled,
Insurance--Litigation and Claims, and the DOE approved contractor
litigation management procedures (including cost guidelines) as such
procedures may be revised from time to time, and if not otherwise
made unallowable in this contract.
* * * * *
(9) Repairs, maintenance, inspection, replacement, and disposal
of Government-owned property and the restoration or clean-up of site
and facilities to the extent approved by the contracting officer and
as allowable under paragraph (f) of the clause of this contract
entitled, Property.
* * * * *
(e) * * *
(12) Fines and penalties, except, with respect to civil fines
and penalties only, if the contractor demonstrates to the
contracting officer that--
(i) Such a civil fine or penalty was incurred as a result of
compliance with specific terms and conditions of the contract or
written instructions from the contracting officer; or
(ii) Such a civil fine or penalty was imposed without regard to
fault and could not have been avoided by the exercise of due care.
* * * * *
(17) Losses or expenses:
(i) On, or arising from the sale, exchange, or abandonment of
capital assets, including investments;
(ii) On other contracts, including the contractor's contributed
portion under cost-sharing contracts;
(iii) In connection with price reductions to and discount
purchases by employees and others from any source;
(iv) That are compensated for by insurance or otherwise or which
would have been compensated by insurance required by law or by
written direction of the contracting officer but which the
contractor failed to procure or maintain through its own fault or
negligence;
(v) That result from willful misconduct or lack of good faith on
the part of any of the contractor's managerial personnel (as that
term is defined in the clause of this contract entitled, Property);
(vi) That represent liabilities to third persons that are not
allowable under the clause of this contract entitled, Insurance--
Litigation and Claims; or
(vii) That represent liabilities to third persons for which the
contractor has expressly accepted responsibility under other terms
of this contract.
* * * * *
Note: In contracts with profit making contractors, add the
following paragraph 36:
(36) Notwithstanding any other provision of this contract, the
costs of bonds and insurance are unallowable to the extent they are
incurred to protect and indemnify the contractor and/or
subcontractor against otherwise unallowable costs, unless such
insurance or bond is required by law, the express terms of this
contract, or is authorized in writing by the contracting officer.
The cost of commercial insurance to protect the contractor against
the costs of correcting its own defects in materials or workmanship
is an unallowable cost.
Section 970.5204-14, Allowable costs and fixed-fee (support
contracts), is amended by revising clause paragraphs (c), (d)(4),
(d)(10), (e)(10), (e)(15), the note preceding (e)(34), and (e)(34) to
read as follows:
970.5204-14 Allowable costs and fixed-fee (support contracts).
As prescribed in 48 CFR (DEAR) 970.3103(a), insert the following
clause.
Allowable Costs and Fixed-Fee (Support Contracts) (Month and Year TBE)
* * * * *
(c) Allowable costs. The allowable cost of performing the work
under this contract shall be the costs and expenses that are
actually incurred by the contractor in the performance of the
contract work in accordance with its terms, that are necessary or
incident thereto, and are determined to be allowable as set forth in
this paragraph. The determination of allowability of cost hereunder
shall be based on:
(1) Reasonableness in accordance with FAR 31.201-3;
(2) Standards promulgated by the Cost Accounting Standards
Board, if applicable; otherwise, generally accepted accounting
principles and practices appropriate to the particular
circumstances; and
(3) Recognition of all exclusions and limitations set forth in
this clause or elsewhere in this contract as to types or amounts of
items of cost. Allowable costs shall not include the cost of any
item described as unallowable in paragraph (e) of this clause except
as indicated therein. Failure to mention an item of cost
specifically in paragraphs (d) or (e) of this clause shall not imply
either that it is allowable or that it is unallowable.
(d) * * *
(4) Reasonable litigation expenses, including counsel fees, if
incurred in accordance with the clause of the contract entitled,
Insurance--Litigation and Claims, in accordance with DOE approved
contractor litigation management procedures (including cost
guidelines) as such procedures may be revised from time to time, and
if not otherwise made unallowable in this contract.
* * * * *
(10) Repairs, maintenance, inspection, replacement, and disposal
of government-owned property to the extent directed or approved by
the contracting officer and as allowable under paragraph (f) of the
clause of this contract entitled, Property.
* * * * *
(e) * * *
(10) Fines and penalties, except, with respect to civil fines
and penalties only, if the contractor demonstrates to the
contracting officer that--
(i) Such a civil fine or penalty was incurred as a result of
compliance with specific terms and conditions of the contract or
written instructions from the contracting officer; or
(ii) Such a civil fine or penalty was imposed without regard to
fault and could not have been avoided by the exercise of due care.
* * * * *
(15) Losses or expenses:
(i) On, or arising from the sale, exchange, or abandonment of
capital assets, including investments;
(ii) On other contracts, including the contractor's contributed
portion under cost-sharing contracts;
(iii) In connection with price reductions to and discount
purchases by employees and other from any source;
(iv) That are compensated for by insurance or otherwise or which
would have been compensated by insurance required by law or by
written direction of the contracting officer but which the
contractor failed to procure or maintain through its own fault or
negligence;
(v) That result from willful misconduct or lack of good faith on
the part of any of the contractor's managerial personnel (as that
term is defined in the clause of this contract entitled, Property);
(vi) That represent liabilities to third persons that are not
allowable under the
[[Page 32600]]
clause of this contract entitled, Insurance--Litigation and Claims;
or
(vii) That represent liabilities to third persons for which the
contractor has expressly accepted responsibility under other terms
of this contract.
* * * * *
Note: In contracts with profit making contractors, add the
following paragraph 34:
(34) Notwithstanding any other provision of this contract, the
costs of bonds and insurance are unallowable to the extent they are
incurred to protect and indemnify the contractor and/or
subcontractor against otherwise unallowable costs, unless such
insurance or bond is required by law, the express terms of this
contract, or is authorized in writing by the contracting officer.
The cost of commercial insurance to protect the contractor against
the costs of correcting its own defects in materials or workmanship
is an unallowable cost.
27. Subsection 970.5204-16 is amended by adding the following to
the end of clause paragraph (a) and revising alternate clause paragraph
(a) following Note 2 to read as follows:
970.5204-16 Payments and advances.
As prescribed in 48 CFR (DEAR) 970.3270, insert the following
clause.
Payments and Advances (Month and Year TBE)
(a) * * * Fixed-fee payments shall be made by direct payment or
withdrawn from funds advanced or available under this contract, as
determined by the contracting officer. The contracting officer may
offset against any such fee payment, the amounts owed to the
Government by the contractor, including any amounts owed for
disallowed costs under this contract. No fixed-fee payment may be
withdrawn against the letter-of-credit without prior written
approval of the contracting officer.
* * * * *
(a) Payment of Base Fee and Award Fee Pool Amounts Earned. The
base fee shall become due and payable in equal monthly installments.
Award fee pool amounts earned shall become due and payable following
the issuance by the FDO of a Determination of Award Fee Pool Amount
Earned, in accordance with the clause of this contract entitled,
Award Fee: base fee and award fee. Base and award fee pool amount
earned payments shall be made by direct payment or withdrawn from
funds advanced or available under this contract, as determined by
the contracting officer. The contracting officer may offset against
any such fee payment, the amounts owed to the Government by the
contractor, including any amounts owed for disallowed costs under
this contract. No base or award fee pool amount earned payment may
be withdrawn against the letter-of-credit without prior written
approval of the contracting officer.
* * * * *
970.5204-18 [Removed and Reserved]
28.Section 970.5204-18 is removed and reserved.
29.Section 970.5204-21, Property, is amended by revising clause
paragraphs (e), (f), (g), (i) and (j) to read as follows:
970.5204-21 Property.
As prescribed in 970.7104-43, insert the following clause.
Property (Month and Year TBE)
* * * * *
(e) Protection of government property--Management of high-risk
property and classified materials.
(1) The contractor shall take all reasonable precautions, and
such other actions as may be directed by the contracting officer, or
in the absence of such direction, in accordance with sound business
practice, to safeguard and protect government property in the
contractor's possession or custody.
(2) The contractor shall ensure that adequate safeguards are in
place, and adhered to, for the handling, control and disposition of
high risk property and classified materials throughout the life
cycle of the property and materials consistent with the policies,
practices and procedures for property management contained in the
Federal Property Management Regulations (41 CFR part 101) and the
Department of Energy Property Management Regulations (41 CFR part
109).
(3) High-risk property is property, the loss, or the unintended
or premature transfer, of which could pose risks to the public, the
environment, or the national security interests of the United
States. High risk property includes proliferation-sensitive,
nuclear-related dual-use, export controlled, chemically or
radioactively contaminated, hazardous, and specially designed and
prepared property, including property on the militarily critical
technologies list.
(f) Risk of loss of Government property. (1) The contractor
shall be responsible and compensate the Government for the loss or
destruction of, or damage to, Government property unless the
contractor demonstrates to the contracting officer that such loss,
destruction, or damage was not caused by any of the following:
(i) Willful misconduct or lack of good faith on the part of the
contractor's managerial personnel;
(ii) Failure of the contractor to comply with any appropriate
written direction of the contracting officer to safeguard such
property under paragraph (e) of this clause; or
(iii) Failure of the contractor to establish, administer or
properly maintain an approved property management system in
accordance with paragraph (i) of this clause.
(2) As described in paragraph (f)(1) of this clause, the
contractor's compensation to the Government shall be determined as
follows:
(i) For damaged property, the compensation shall be the cost of
repairing such damaged property, plus any costs incurred for
temporary replacement of the damaged property. However, the value of
repair costs shall not exceed the fair market value of the damaged
property. If a fair market value of the property does not exist, the
contracting officer shall determine the value of such property,
consistent with all relevant facts and circumstances.
(ii) For destroyed or lost property, the compensation shall be
the fair market value of such property at the time of such loss or
destruction, plus any costs incurred for temporary replacement and
costs associated with the disposition of destroyed property. If a
fair market value of the property does not exist, the contracting
officer shall determine the value of such property, consistent with
all relevant facts and circumstances.
(3) The cost of insurance obtained by the contractor to cover
the risk of loss referred to in paragraph (f)(1) of this clause is
not allowable.
(g) Steps to be taken in event of loss. In the event of any
damage, destruction, or loss to Government property in the
possession or custody of the contractor, the contractor:
(1) Shall immediately inform the contracting officer of the
occasion and extent thereof,
(2) Shall take all reasonable steps to protect the property
remaining, and
(3) Shall repair or replace the damaged, destroyed, or lost
property in accordance with the written direction of the contracting
officer. The contractor shall take no action prejudicial to the
right of the Government to recover therefore, and shall furnish to
the Government, on request, all reasonable assistance in obtaining
recovery.
* * * * *
(i) Property Management.
(1) Property Management System.
(i) The contractor shall maintain and administer an approved
property management system of accounting for and control,
utilization, maintenance, repair, protection, and preservation of
Government property in its possession under the contract. The
contractor's property management system shall be approved by the
contracting officer and maintained and administered in accordance
with sound business practice, applicable Federal Property Management
Regulations and Department of Energy Property Management
Regulations, and such directives or instructions which the
contracting officer may from time to time prescribe.
(ii) In order for a property management system to be approved,
it must provide for:
(A) Comprehensive coverage of property from the requirement
identification, through its life cycle, to final disposition;
(B) Employee personal responsibility and accountability for
Government-owned property;
(C) Full integration with the contractor's other administrative
and financial systems; and
(D) A reliable method for continuously improving property
management practices through the identification of best practices
established by ``best in class'' performers.
(iii) Approval of the contractor's property management system
shall be contingent upon the completion of the baseline inventory as
provided in subparagraph (i)(2) of this clause.
(2) Property Inventory. (i) Unless otherwise directed by the
contracting officer, the contractor shall within six months after
execution of the contract provide a baseline inventory covering all
items of property furnished by the Government.
(ii) In the event that the contractor is succeeding another
contractor(s) in the
[[Page 32601]]
performance of this contract, the contractor shall conduct a joint
reconciliation of the property inventory with the predecessor
contractor. The contractor further agrees to participate in a joint
reconciliation of the property inventory at the completion of this
contract. This information will be used to provide a baseline for
the succeeding contract as well as information for closeout of the
predecessor contract.
(j) The term ``contractor's managerial personnel'' as used in
this clause means the contractor's directors, officers and any of
its managers, superintendents, or other equivalent representatives
who have supervision or direction of:
(1) All or substantially all of the contractor's business; or
(2) All or substantially all of the contractor's operations at
any one facility or separate location to which this contract is
being performed; or
(3) A separate and complete major industrial operation in
connection with the performance of this contract; or
(4) A separate and complete major construction, alteration, or
repair operation in connection with performance of this contract; or
(5) A separate and discrete major task or operation in
connection with the performance of this contract.
Note: Substitute the following paragraph (j) for nonprofit
contractors:
(j) The term ``contractor's managerial personnel'' as used in
this clause means the contractor's directors, officers and any of
its managers, superintendents, or other equivalent representatives
who have supervision or direction of:
(1) All or substantially all of the contractor's business; or
(2) All or substantially all of the contractor's operations at
any one facility or separate location at which this contract is
being performed; or
(3) The Laboratory officials responsible for the contractor's
Government property system and/or a Major System Acquisition or
Major Project as defined in DOE Order 4700.1 (Version in effect on
effective date of contract).
970.5204-26 [Removed and Reserved]
30. Subsection 970.5204-26, Nuclear facility safety, is removed and
reserved.
31. Subsection 970.5204-31 is revised to read as follows:
970.5204-31 Insurance--litigation and claims.
As prescribed in 48 CFR (DEAR) 970.2830(a), insert the following
clause.
Insurance--Litigation and Claims (Month and Year TBE)
(a) The contractor may, with the prior written authorization of
the contracting officer, and shall, upon the request of the
Government, initiate litigation against third parties, including
proceedings before administrative agencies, in connection with this
contract. The contractor shall proceed with such litigation in good
faith and as directed from time to time by the contracting officer.
(b) The contractor shall give the contracting officer immediate
notice in writing of any legal proceeding, including any proceeding
before an administrative agency, filed against the contractor
arising out of the performance of this contract. Except as otherwise
directed by the contracting officer, in writing, the contractor
shall furnish immediately to the contracting officer copies of all
pertinent papers received by the contractor with respect to such
action. The contractor, with the prior written authorization of the
contracting officer, shall proceed with such litigation in good
faith and as directed from time to time by the contracting officer.
(c)(1) Except as provided in paragraph (c)(2) of this clause,
the contractor shall procure and maintain such bonds and insurance
as required by law or approved in writing by the contracting
officer.
(2) The contractor may, with the approval of the contracting
officer, maintain a self-insurance program; provided that, with
respect to workers' compensation, the contractor is qualified
pursuant to statutory authority.
(3) All bonds and insurance required by this clause shall be in
a form and amount and for those periods as the contracting officer
may require or approve and with sureties and insurers approved by
the contracting officer.
(d) The contractor agrees to submit for the contracting
officer's approval, to the extent and in the manner required by the
contracting officer, any other bonds and insurance that are
maintained by the contractor in connection with the performance of
this contract and for which the contractor seeks reimbursement.
(e) Except as provided in subparagraphs (g) and (h) of this
clause, or specifically disallowed elsewhere in this contract, the
contractor shall be reimbursed--
(1) For that portion of the reasonable cost of bonds and
insurance allocable to this contract required in accordance with
contract terms or approved under this clause, and
(2) For liabilities (and expenses incidental to such
liabilities, including litigation costs) to third persons not
compensated by insurance or otherwise without regard to and as an
exception to the clause of this contract entitled, Obligation of
Funds (48 CFR (DEAR) 970.5204-15).
(f) The Government's liability under paragraph (e) of this
clause is subject to the availability of appropriated funds. Nothing
in this contract shall be construed as implying that the Congress
will, at a later date, appropriate funds sufficient to meet
deficiencies.
(g) Notwithstanding any other provision of this contract, the
contractor shall not be reimbursed for liabilities (and expenses
incidental to such liabilities, including litigation costs, counsel
fees, judgment and settlements)--
(1) Which are otherwise unallowable by law or the provisions of
this contract; or
(2) For which the contractor has failed to insure or to maintain
insurance as required by law, this contract, or by the written
direction of the contracting officer.
(h) Notwithstanding any other provision of this contract, the
contractor's liabilities to third persons, including employees, (and
any expenses incidental to such liabilities, including litigation
costs) are not allowable unless the contractor demonstrates to the
contracting officer that such liabilities were not caused by the
willful misconduct or lack of good faith of the contractor's
managerial personnel, or failure to exercise prudent business
judgment by the contractor's managerial personnel.
(i)(1) Costs which may be unallowable under subparagraph (g)(1)
or (h) of this clause shall be differentiated and accounted for by
the contractor so as to be separately identifiable. The contracting
officer shall generally withhold payment and not authorize the use
of funds advanced under the contract for payment of such costs.
However, the contracting officer may, in appropriate circumstances,
provide for conditional payment upon provision of adequate security,
or other adequate assurance, and agreement by the contractor to
repay all unallowable costs, plus interest, if the costs are
subsequently determined to be unallowable.
(2) Punitive damages are not allowable unless the contractor
demonstrates to the contracting officer that the act or failure to
act which gave rise to the liability resulted from compliance with
specific terms and conditions of the contract or written
instructions from the contracting officer.
(3) The cost of insurance specifically procured by the
contractor to cover the third-party liabilities referenced in
paragraph (g)(1) of this clause is not allowable.
(4) The term ``contractor's managerial personnel'' is defined in
clause paragraph (j) of 48 CFR (DEAR) 970.5204-21.
(j) The contractor may at its own expense and not as an
allowable cost procure for its own protection insurance to
compensate the contractor for any unallowable or unreimbursable
costs incurred in connection with contract performance.
(k) If any suit or action is filed or any claim is made against
the contractor, the cost and expense of which may be reimbursable to
the contractor under this contract, and the risk of which is then
uninsured or is insured for less than the amount claimed, the
contractor shall--
(1) Immediately notify the contracting officer and promptly
furnish copies of all pertinent papers received;
(2) Authorize Department representatives to collaborate with:
in-house or DOE-approved outside counsel in settling or defending
the claim; or counsel for the insurance carrier in settling or
defending the claim when the amount of the liability claimed exceeds
the amount of coverage, unless precluded by the terms of the
insurance contract; and
(3) Authorize Department representatives to settle the claim or
to defend or represent the contractor in and/or to take charge of
any litigation, if required by the Department, when the liability is
not insured or covered by bond. In any action against more than one
Department contractor, the Department may require the contractor to
be represented by common counsel. Counsel for the contractor may, at
the contractor's own expense, be associated with the Department
[[Page 32602]]
representatives in any such claim or litigation.
(l) The provisions of 48 CFR (DEAR) 970.71 are not applicable to
costs incurred under and in accordance with this clause and
subparagraph (d)(4) of the clause at 48 CFR (DEAR) 970.5204-13
entitled, Allowable costs and fixed fee.
970.5204-32 [Removed and Reserved]
32. Subsection 970.5204-32, Required bond and insurance--exclusive
of government property, is removed and reserved.
970.5204-41 [Removed and Reserved]
33. Subsection 970.5204-41, Preservation of individual occupational
radiation exposure records, is removed and reserved.
970.5204-55 and 970.5204-56 [Removed and Reserved]
34. Subsections 970.5204-55 and 970.5204-56 are removed and
reserved.
35. Subsection 970-5204-61 is amended by revising the presciptation
and adding clause paragraph (h):
970.5204-61 Cost prohibitions related to legal and other proceedings.
As prescribed in 48 CFR (DEAR) 970.3103(c), insert the following
clause.
Cost Prohibitions Related to Legal and Other Proceedings (Month and
Year TBE)
* * * * *
(h) For proceedings against the contractor in which the
contractor is alleged to have violated the False Claims Act, 31
U.S.C. 3730, and to the extent paragraph (b) of this clause is not
otherwise applicable:
(1) Any costs of judgments against the contractor, and the
associated litigation costs, and, except as authorized by the
contracting officer, costs of settlements made by the contractor,
and the associated litigation costs, are unallowable; and
(2) For those cases in which the Department of Justice does not
intervene, contractor requests for provisional reimbursement of
proceeding costs should be denied unless the General Counsel concurs
in a determination that the case is so frivolous or devoid of merit
that it would be in the interest of the government to provisionally
allow such costs.
970.5204-62 [Removed and Reserved]
36. Subsection 970.5204-62, Environmental protection, is removed
and reserved.
37. Subpart 970.52, Contract Clauses for Management and Operating
Contracts, is amended to add 970.5204-XX, Preexisting Conditions;
970.5204-XX, Make-or-Buy Plan; 970.5204-XX, Displaced Employee Hiring
Preference; 970.5204-XX, Laws, Regulations, and DOE Directives;
970.5204-XX, Ownership of Records; and 970.5204-XX, Overtime
Management, to read as follows:
970.52 Contract Clauses for Management and Operating Contracts.
970.5204-XX Preexisting conditions.
970.5204-XX Make-or-buy plan.
970.5204-XX Displaced employee hiring preference.
970.5204-XX Laws, regulations, DOE directives.
970.5204-XX Ownership of records.
970.5204-XX Overtime management.
970.5204-XX Preexisting conditions.
As prescribed in 48 CFR (DEAR) 970.3103(d), insert the following
clause.
Preexisting Conditions (Month and Year TBE)
(a) The Department agrees to reimburse the contractor, and the
contractor shall not be held responsible, for any liability
(including without limitation, a claim involving strict or absolute
liability and any civil fine or penalty), expense, or remediation
cost, but limited to those of a civil nature, which may be incurred
by, imposed on, or asserted against the contractor arising out of
any condition, act or failure to act which occurred before the
contractor assumed responsibility on [Specify date contract began].
To the extent the acts or omissions of the contractor cause or add
to any liability, expense or remediation cost resulting from
conditions in existence prior to [Specify date contract began], the
contractor shall be responsible in accordance with the terms and
conditions of this contract.
(b) The contractor has the duty to inspect the facilities and
sites and timely identify to the contracting officer those
conditions which it believes could give rise to a liability,
obligation, loss, damage, penalty, fine, claim, action, suit, cost,
expense, or disbursement or areas of actual or potential
noncompliance with the terms and conditions of this contract or
applicable law or regulation, and the contractor has the
responsibility to take corrective action, as directed by the
contracting officer as required elsewhere in this contract.
(c) The obligations of the Government under this provision are
subject only to the availability of appropriated funds.
Alternate I. As prescribed in 48 CFR (DEAR) 970.3103(d),
substitute the following paragraph (a):
(a) Any liability, obligation, loss, damage, claim (including
without limitation, a claim involving strict or absolute liability),
action, suit, civil fine or penalty, cost, expense or disbursement,
which may be incurred or imposed, or asserted by any party and
arising out of any condition, act or failure to act which occurred
before [Insert date of contract including this clause], in
conjunction with the management and operation of [Insert name of
facility], shall be deemed incurred under Contract No. [Insert
number of prior contract].
970.5204-XX Make-or-buy plan.
As prescribed in 48 CFR (DEAR) 970.1507-3(a), insert the following
clause:
Make-Or-Buy Plan (Month and Year TBE)
(a) Definitions.
Buy item means a work activity or property or services to be
produced or performed by an outside source, including a
subcontractor or an affiliate, subsidiary, or division of the
contractor.
Make item means a work activity or property or services to be
produced or performed by the contractor using its personnel and
other resources at the Department of Energy facility or site.
Master make-or-buy plan means a contractor's written program for
the contract that identifies work efforts or requirements that
either are ``make items'' or ``buy items.''
(b) Make-or-buy plan. The contractor shall develop and implement
a make-or-buy plan that establishes a preference for providing
property and services on a least cost basis, subject to specific
Department of Energy make or buy criteria identified in the contract
or otherwise provided by the contracting officer. In developing and
implementing its make-or-buy plan, the contractor agrees to assess
subcontracting opportunities and implement subcontracting decisions
in accordance with the following:
(1) The contractor will actively support internal productivity
improvement and cost-reduction programs so that in-house performance
options can be made more efficient and cost-effective.
(2) The contractor shall consider subcontracting opportunities
with the maximum practicable regard for open communications with
potentially affected employees and their representatives. Similarly,
contractors will openly discuss their plans, activities, cost-
benefit analyses, and decisions with the many stakeholders affected
by such decisions, including representatives of the community and
local businesses.
(3) Consistent with Section 3161 of the National Defense
Authorization Act for Fiscal Year 1993, the contractor shall
mitigate the social and economic impacts of subcontracting
decisions, including work force displacement or restructuring, to
the extent practicable. Mitigation shall include:
(i) The requirement for hiring preferences and retraining in a
subcontract,
(ii) The provision of relocation and/or reemployment assistance,
and
(iii) Consideration of early retirement opportunities.
(c) Submission and approval. The contractor shall submit a make-
or-buy plan for approval in accordance with the schedule and other
instructions provided by the contracting officer.The following
documentation shall be prepared and submitted:
(1) A description of the each work item, and if appropriate, the
identification of the associated Work Authorization or Work
Breakdown Structure element;
(2) The categorization of each work item as ``must make,''
``must buy,'' or ``can make or buy,'' with the reasons for such
categorization in consideration of the program specific make or buy
criteria (including least cost considerations). For non-core
capabilities categorized as ``must make,'' a cost/benefit analysis
must be performed for each item when:
[[Page 32603]]
(i) The contractor is not the least-cost performer, and
(ii) A program specific make-or-buy criterion does not otherwise
justify a ``must make'' categorization;
(3) A decision to either ``make'' or ``buy'' in consideration of
the program specific make or buy criteria (including least cost
considerations) for work effort categorized as ``can make or buy'';
(4) Identification of potential suppliers and subcontractors, if
known, and their location and size status;
(5) A recommendation to defer a make or buy decision where
categorization of an identifiable work effort(s) is impracticable at
the time of initial development of the plan;
(6) A description of the impact of a change in current practice
of making or buying on the existing work force; and
(7) Any additional information appropriate to support and
explain the plan.
(d) Conduct of operations. Once a master make or buy plan is
approved, the contractor shall perform in accordance with the plan.
(e) Changes to the master make-or-buy plan. The master make- or-
buy plan established in accordance with paragraph (b) of this clause
shall remain in effect for the term of the contract, unless:
(1) A lesser period is provided either for the total plan or for
individual items or work effort;
(2) The circumstances supporting the original make-or-buy
decisions change subsequent to the initial approval, or
(3) New work is identified. At least annually, the contractor
shall review its approved make-or-buy plan to ensure that it
reflects current conditions. Changes to the approved make-or-buy
plan shall be submitted in advance of the effective date of the
proposed change in sufficient time to permit evaluation and review.
All changes shall be submitted in accordance with instructions
provided by the contracting officer. Modification of the make-or-buy
plan to incorporate proposed changes or additions shall be effective
upon the contractor's receipt of the contracting officer's written
approval.
970.5204-XX Displaced employee hiring preference.
As prescribed in 48 CFR (DEAR) 970.1507-3(b), insert the following
clause.
Displaced Employee Hiring Preference (Month and Year TBE)
(a) Definition.
Eligible employee means a current or former employee of the
[insert name of facility] whose position of employment has been, or
will be, affected by the downsizing, contracting out decision, or
subcontracting decision of a Department of Energy defense nuclear
facility and who has also met the eligibility criteria contained in
the Department of Energy's Interim Planning Guidance for Contractor
Work Force Restructuring.
(b) The contractor agrees that it will provide a preference in
hiring to an eligible employee to the extent practicable for work
performed under this contract when that employee is qualified to
perform the work.
(c) The requirements of this clause shall be included in all
subcontracts awarded in accordance with this contract at any tier
which exceed $500,000 in value, unless a statute, such as 41 U.S.C.
Section 403 on commercial items, intends to preclude inclusion of
such a requirement.
970.5204-XX Laws, regulations, and DOE directives.
As prescribed in 48 CFR (DEAR) 970.0470-2, insert the following
clause.
Laws, Regulations, and DOE Directives (Month and Year TBE)
(a) In performing work under this contract, the contractor shall
comply with the requirements of applicable Federal, State, and local
laws and regulations, unless relief has been granted in writing by
the appropriate regulatory agency. A List of Applicable Laws and
Regulations may be appended to this contract for information
purposes. Omission of any applicable law or regulation from the List
does not affect the obligation of the contractor to comply with such
law or regulation pursuant to this paragraph.
(b) In performing work under this contract, the contractor shall
comply with the requirements of those Department of Energy
directives, or parts thereof, identified in the List of Applicable
Directives appended to this contract. The contracting officer may,
from time to time and at any time, revise this List by unilateral
modification to the contract to add, modify, or delete specific
requirements. Prior to revising this List, the contracting officer
shall notify the contractor in writing of the Department's intent to
revise this List and provide the contractor with the opportunity to
assess the effect of the contractor's compliance with the revised
list on contract cost and funding, technical performance, and
schedule; and identify any potential inconsistencies between the
revised list and the other terms and conditions of the contract,
including an alternative set of requirements incorporated by
reference in accordance with paragraph (d) of this clause. Within 30
days after receipt of the contracting officer's notice, the
contractor shall advise the contracting officer in writing of the
potential impact of the contractor's compliance with the revised
list. Based on the information provided by the contractor and any
other information available, the contracting officer shall decide
whether to revise this List, and so advise the contractor not later
than 30 days prior to the effective date of the revision of the
list. The contractor and the contracting officer shall identify and,
if appropriate, agree to any changes to other contract terms and
conditions, including cost and schedule, associated with the
revision of the list pursuant to the clause entitled, Changes, of
this contract.
(c) Environmental, safety, and health requirements applicable to
this contract may be determined by an alternate process developed by
the Department of Energy (i.e., the Standards/Requirements
Identification process or the Necessary and Sufficient Process).
When such alternate process is used, the resulting set of
requirements shall be incorporated into the List of Applicable
Directives with full force and effect. These requirements shall
supersede, in whole or in part, the environmental, safety, and
health requirements previously made applicable to the contract by
the List of Applicable Directives.
(d) The contractor shall be responsible for compliance with the
requirements made applicable to this contract, regardless of the
performer of the work. Consequently, the contractor shall be
responsible for flowing down the necessary provisions to
subcontracts at any tier to which the contractor determines such
requirements apply.
970.5204-XX Ownership of records.
As prescribed in 48 CFR (DEAR) 970.0407-3, insert the following
clause.
Ownership of Records (Month and Year TBE)
(a) Government's records. Except as provided in paragraph (b) of
this clause, all records acquired or generated by the contractor in
its performance of this contract shall be the property of the
Government and shall be delivered to the Government or otherwise
disposed of by the contractor either as the contracting officer may
from time to time direct during the process of the work or, in any
event, as the contracting officer shall direct upon completion or
termination of the contract.
(b) Contractor's own records. The following records are
considered the property of the contractor and are not within the
scope of paragraph (a) of this clause. [The contracting officer
shall identify here any of the following listed records.
(1) Employment-related records (such as workers' compensation
files; employee relations records, records on salary and employee
benefits; drug testing records, labor negotiation records; and
personnel and medical/health-related records and similar files).
(2) Confidential contractor financial information, and
correspondence between the contractor and other segments of the
contractor located away from the DOE facility (i.e., the
contractor's corporate headquarters);
(3) Non-accounting records relating to any procurement action by
the contractor; and
(4) The following categories of records maintained pursuant to
the technology transfer clause of this contract:
(i) Executed license agreements, including exhibits or
appendices containing information on royalties, royalty rates, other
financial information, or commercialization plans, and all related
documents, notes and correspondence.
(ii) The contractor's protected Cooperative Research and
Development Agreement (CRADA) information and appendices to a CRADA
that contain licensing terms and conditions, or royalty or royalty
rate information.
(iii) Patent, copyright, mask work, and trademark application
files and related contractor invention disclosures, documents and
correspondence, where the contractor has elected rights or has
permission to assert rights and has not relinquished such rights or
turned such rights over to the Government.]
[[Page 32604]]
(c) In the event of completion or termination of this contract,
copies of any of the contractor's own records identified in
paragraph (b) of this clause shall be delivered to DOE or its
designees. Title to such records shall vest in DOE upon delivery.
(d) Inspection, copying, and audit of records. All records
acquired or generated by the contractor under this contract in the
possession of the contractor, including those described at paragraph
(b) of this clause, shall be subject to inspection, copying, and
audit by the Government or its designee at all reasonable times, and
the contractor shall afford the Government or its designee
reasonable facilities for such inspection, copying, and audit;
provided, however, that upon request by the contracting officer, the
contractor shall deliver such records to a location specified by the
contracting officer for inspection, copying, and audit.
(e) Applicability. The provisions of paragraph (b) and (c) of
this clause apply to all records without regard to the date or
origination of such records.
(f) Records retention standards. Special records retention
standards, described at DOE Order 1324.5, Records Management Program
and DOE Records Schedules (version in effect on effective date of
contract), are applicable for the classes of records described
therein, whether or not the records are owned by the Government or
the contractor. In addition, the contractor shall retain individual
radiation exposure records generated in the performance of work
under this contract until DOE authorizes disposal.
(g) Flowdown. The contractor shall include the requirements of
this clause in all subcontracts that are of a cost-reimbursement
type if any of the following factors is present:
(1) The value of the contract is greater than $2 million (unless
specifically waived by the contracting officer);
(2) The contracting officer determines that the subcontract is,
or involves, a critical task related to the contract; or
(3) The subcontract includes 48 CFR (DEAR) 970.5204-2,
Environment, safety, and health, or similar clause.
970.5204-XX Overtime management.
As prescribed in 48 CFR (DEAR) 970.2275-2, insert the following
clause:
Overtime Management (Month and Year TBE)
(a) The contractor shall submit and comply with an annual
overtime control plan approved by the contracting officer if any of
the following criteria are met:
(1) The contractor's overtime expenditures as a percent of
payroll exceed the DOE contractor median overtime expenditures for
the preceding calendar year plus 2 percent;
(2) The contractor's overtime expenditures as a percent of
payroll exceed the DOE contractor median overtime expenditures for
the preceding calendar year and the contractor's policy permits
payment of overtime premium for exempt employees earning greater
than or equal to $45,000 per annum; or
(3) The contractor's overtime as a percent of payroll exceed the
DOE contractor median overtime expenditures for the preceding
calendar year and the contractor provides for overtime premium pay
on any other basis than for hours worked in excess of 40 per week.
(b) The annual overtime control plan shall include, at a
minimum:
(1) An overtime premium fund (maximum dollar amount);
(2) Specific controls for casual overtime for non-exempt
employees;
(3) Specific parameters for allowability of exempt overtime;
(4) An evaluation of alternatives to the use of overtime; and
(5) Submission of a semi-annual report that includes for exempt
and non-exempt employees:
(i) Total cost of overtime;
(ii) Total cost of straight time;
(iii) Overtime cost as a percentage of straight-time cost;
(iv) Total overtime hours;
(v) Total straight-time hours; and
(vi) Overtime hours as a percentage of straight-time hours.
[FR Doc. 96-15367 Filed 6-21-96; 8:45 am]
BILLING CODE 6450-01-P
Complete official Federal Register PDF
FR Doc. 96-15138 1996-97 Refuge-Specific Hunting and Fishing Regulations
[Federal Register Volume 61, Number 122 (Monday, June 24, 1996)]
[Proposed Rules]
[Pages 32415-32422]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15138]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
50 CFR Part 32
RIN 1018-AD76
1996-97 Refuge-Specific Hunting and Fishing Regulations
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Fish and Wildlife Service (Service) proposes to amend
certain regulations that pertain to migratory game bird hunting, upland
game hunting, big game hunting and sport fishing on individual national
wildlife refuges for the 1996-97 seasons. Refuge hunting and fishing
programs are reviewed annually to determine whether the individual
refuge regulations governing these programs should be modified, deleted
or have additions made to them. Changing environmental conditions,
State and Federal regulations, and other factors affecting wildlife
populations and habitat may warrant modifications ensuring continued
compatibility of hunting and fishing with the purposes for which
individual refuges were established.
DATES: Comments on this proposed rule will be accepted on or before
July 24, 1996.
ADDRESSES: Assistant Director--Refuges and Wildlife, U.S. Fish and
Wildlife Service, 1849 C Street, NW, MS 670 ARLSQ, Washington, DC
20240.
FOR FURTHER INFORMATION CONTACT: Stephen R. Vehrs, at the above
address; Telephone (703) 358-2397.
SUPPLEMENTARY INFORMATION: 50 CFR part 32 contains provisions governing
hunting and fishing on national wildlife
[[Page 32416]]
refuges. Hunting and fishing are regulated on refuges to:
Ensure compatibility with refuge purposes;
Properly manage the fish and wildlife resource;
Protect other refuge values; and
Ensure refuge user safety.
On many refuges, the Service policy of adopting State hunting and
fishing regulations is adequate in meeting these objectives. On other
refuges, it is necessary to supplement State regulations with more
restrictive Federal regulations to ensure that the Service meets its
management responsibilities, as outlined under the section entitled
``Statutory Authority.'' Refuge-specific hunting and fishing
regulations may be issued only after a wildlife refuge is opened to
migratory game bird hunting, upland game hunting, big game hunting or
sport fishing through publication in the Federal Register. These
regulations may list the wildlife species that may be hunted or are
subject to sport fishing, seasons, bag limits, methods of hunting or
fishing, descriptions of open areas, and other provisions as
appropriate. Previously issued refuge-specific regulations for hunting
and fishing are contained in 50 CFR part 32. Many of the amendments to
these sections are being promulgated to standardize and clarify the
existing language of these regulations.
Request for Comments
Department of the Interior policy is, whenever practicable, to
afford the public a meaningful opportunity to participate in the
rulemaking process. A 30-day comment period is specified in order to
facilitate public input. Accordingly, interested persons may submit
written comments concerning this proposed rule to the person listed
above under the heading ADDRESSES. All substantive comments will be
reviewed and considered.
Statutory Authority
The National Wildlife Refuge System Administration Act (NWRSAA) of
1966, as amended (16 U.S.C. 668dd), and the Refuge Recreation Act of
1962 (16 U.S.C. 460k) govern the administration and public use of
national wildlife refuges. Specifically, Section 4(d)(1)(A) of the
NWRSAA authorizes the Secretary of the Interior to permit the use of
any area within the Refuge System for any purpose, including but not
limited to, hunting, fishing and public recreation, accommodations and
access, when he determines that such uses are compatible with the major
purpose(s) for which the area was established.
The Refuge Recreation Act (RRA) authorizes the Secretary to
administer areas within the Refuge System for public recreation as an
appropriate incidental or secondary use only to the extent that it is
practicable and not inconsistent with the primary purpose(s) for which
the areas were established. The NWRSAA and the RRA also authorize the
Secretary to issue regulations to carry out the purposes of the Acts
and regulate uses.
Hunting and sport fishing plans are developed for each existing
refuge prior to opening it to hunting or fishing. In many cases,
refuge-specific regulations are developed to ensure the compatibility
of the programs with the purposes for which the refuge was established.
Initial compliance with the NWRSAA and the RRA has been ensured for
hunting and sport fishing on newly acquired refuges through an interim
determination of compatibility made at the time of acquisition. This
has ensured that the determinations required by these acts have been
made prior to the addition of refuges to the lists of areas open to
hunting and fishing in 50 CFR part 32. Continued compliance is ensured
by the development of long-term hunting and sport fishing plans and by
annual review of hunting and sport fishing programs and regulations.
The Service has determined that this action is in accordance with
the provisions of all applicable laws, is consistent with principles of
sound fish and wildlife management, helps implement Executive Order
12962 (Recreational Fisheries), and is otherwise in the public interest
by providing additional recreational opportunities at national wildlife
refuges. Sufficient funds will be available within the refuge budgets
to operate the hunting and sport fishing programs as proposed.
Paperwork Reduction Act
This regulation has been examined under the Paperwork Reduction Act
of 1995 and has been found to contain no information collection
requirements.
Economic Effect
Service review has revealed that the rulemaking will increase
hunter and fishermen visitation to the surrounding area of the refuges
before, during or after the recreational uses, compared to the refuge
being closed to these recreational uses.
These refuges are generally located away from large metropolitan
areas. Businesses in the area of the refuges consist primarily of small
family owned stores, restaurants, gas stations and other small
commercial enterprises. In addition, there are several small commercial
and recreational fishing and hunting camps and marinas in the general
areas. This proposed rule would have a positive effect on such
entities; however, the amount of revenue generated is not large.
Many area residents enjoy a rural lifestyle that includes frequent
recreational use of the abundant natural resources of the area. A high
percentage of the households enjoy hunting, fishing, and boating in
area wetlands, rivers and lakes. Refuge lands were not generally
available for general public use prior to government acquisition;
however, they were fished and hunted upon by friends and relatives of
the landowners, and some were under commercial hunting and fishing
leases. Many nearby residents also participate in other forms of
nonconsumptive outdoor recreation, such as biking, hiking, camping,
birdwatching, canoeing, and other outdoor sports.
Economic impacts of refuge fishing and hunting programs on local
communities are calculated from average expenditures in the ``1995
National Survey of Fishing, Hunting, and Wildlife-Associated
Recreation''. In 1995, 42 million U.S. residents 16 years old and older
hunted and/or fished. More specifically, 37 million fished and 14.5
million hunted. Those who both fished and hunted account for the 9.5
million overage. Nationwide expenditures by sportsmen totaled $42
billion. Trip-related expenditures for food, lodging, and
transportation were $16 billion or 37 percent of all fishing and
hunting expenditures; equipment expenditures amounted to $19 billion,
or 46 percent of the total; other expenditures such as those for
magazines, membership dues, contributions, land leasing, ownership,
licenses, stamps, tags, and permits accounted for $6.9 billion, or 16
percent of all expenditures. Overall, anglers spent an average of $41
per day. For each day of hunting, big game hunters averaged spending
$40, small game hunters $20, and migratory bird hunters $33.
At these 40 National Wildlife Refuges in 24 states, 816,000
fishermen are expected to spend $33.5 million annually in pursuit of
their sport, while an estimated 203,000 hunters will spend $6.7 million
annually hunting on the refuges. While many of these fishermen and
hunters already make such expenditures prior to the refuge opening,
minor amounts of these additional expenditures are directly due
[[Page 32417]]
to the land now being open to the general public.
This rulemaking will have a small but positive impact on local
economies and is not subject to Office of Management and Budget review
under Executive Order 12866. In addition, a review under the Regulatory
Flexibility Act of 1980 (5 U.S.C. 601 et seq.) has revealed that the
rulemaking would increase visitation and expenditures in the
surrounding area of the refuges. The rulemaking would not have a
significant effect on a substantial number of small entities in the
area, such as businesses, organizations and governmental jurisdictions.
Unfunded Mandates
The Service has determined and certifies pursuant to the Unfunded
Mandates Act, 2 U.S.C. 1502 et seq., that this rulemaking will not
impose a cost of $100 million or more in any given year on local or
State governments or private entities.
Environmental Considerations
Compliance with the National Environmental Policy Act of 1969
(NEPA) (42 U.S.C. 4332(C)) is ensured when hunting and sport fishing
plans are developed, and the determinations required by this act are
made prior to the addition of refuges to the lists of areas open to
hunting and fishing in 50 CFR part 32. The changes in hunting and
fishing herein proposed were reviewed with regard to Section 7 of the
Endangered Species Act of 1973 (16 U.S.C. 1531-1543) and found to
either have no affect on or are not likely to adversely affect listed
species or critical habitat. The amendment of refuge-specific hunting
and fishing regulations are subject to a categorical exclusion from the
NEPA process if they do not significantly alter the existing use of a
particular national wildlife refuge. The Service exclusion found at 516
DM 6, App.1.4 B(5) is employed here as these amendments are considered
``[m]inor changes in the amounts or types of public use on FWS or
State-managed lands, in accordance with regulations, management plans,
and procedures.'' These refuge-specific hunting and fishing revisions
to existing regulations simply qualify or otherwise define an existing
hunting or fishing activity, for purposes of resource management. These
documents are on file in the offices of the Service and may be viewed
by contacting the primary author noted below. Information regarding
hunting and fishing permits and the conditions that apply to individual
refuge hunts, sport fishing activities, and maps of the respective
areas are retained at refuge headquarters and can be obtained from the
regional offices of the U.S. Fish and Wildlife Service at the addresses
listed below:
Region 1--California, Hawaii, Idaho, Nevada, Oregon, and
Washington. Assistant Regional Director--Refuges and Wildlife, U.S.
Fish and Wildlife Service, Eastside Federal Complex, Suite 1692, 911
N.E. 11th Avenue, Portland, Oregon 97232-4181; Telephone (503) 231-
6214.
Region 2--Arizona, New Mexico, Oklahoma and Texas. Assistant
Regional Director--Refuges and Wildlife U.S. Fish and Wildlife Service,
Box 1306, Albuquerque, New Mexico 87103; Telephone (505) 766-1829.
Region 3--Illinois, Indiana, Iowa, Michigan, Minnesota, Missouri,
Ohio and Wisconsin. Assistant Regional Director--Refuges and Wildlife,
U.S. Fish and Wildlife Service, Federal Building, Fort Snelling, Twin
Cities, Minnesota 55111; Telephone (612) 725-3507.
Region 4--Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana,
Mississippi, North Carolina, Tennessee, South Carolina, Puerto Rico and
the Virgin Islands. Assistant Regional Director--Refuges and Wildlife,
U.S. Fish and Wildlife Service, 1875 Century Boulevard, Room 324,
Atlanta, Georgia 30345; Telephone (404) 679-7152.
Region 5--Connecticut, Delaware, District of Columbia, Maine,
Maryland, Massachusetts, New Hampshire, New Jersey, New York,
Pennsylvania, Rhode Island, Vermont, Virginia and West Virginia.
Assistant Regional Director--Refuges and Wildlife, U.S. Fish and
Wildlife Service, 300 Westgate Center Drive, Hadley, Massachusetts
01035; Telephone (413) 253-8550.
Region 6--Colorado, Kansas, Montana, Nebraska, North Dakota, South
Dakota, Utah and Wyoming. Assistant Regional Director--Refuges and
Wildlife, U.S. Fish and Wildlife Service, Box 25486, Denver Federal
Center, Denver, Colorado 80225; Telephone (303) 236-8145.
Region 7--Alaska. Assistant Regional Director--Refuges and
Wildlife, U.S. Fish and Wildlife Service, 1011 E. Tudor Rd., Anchorage,
Alaska 99503; Telephone (907) 786-3545.
Primary Author
Stephen R. Vehrs, Division of Refuges, U.S. Fish and Wildlife
Service, Washington, DC 20240, is the primary author of this rulemaking
document.
List of Subjects in 50 CFR Part 32
Fishing, Hunting, Reporting and recordkeeping requirements,
Wildlife, Wildlife refuges.
Accordingly, Part 32 of Chapter I of Title 50 of the Code of
Federal Regulations is proposed to be amended as follows:
PART 32--[AMENDED]
1. The authority citation for Part 32 continues to read as follows:
Authority: 5 U.S.C. 301; 16 U.S.C. 460k, 664, 668dd, and 715i.
Sec. 32.7 [Amended]
2. Section 32.7 List of refuge units open to hunting and/or
fishing, is amended by alphabetically adding the listings ``Windom
Wetland Management District'' to the State of Minnesota; ``William L.
Finley National Wildlife Refuge'' to the State of Oregon; and ``Upper
Mississippi River National Wildlife and Fish Refuge'' to the State of
Wisconsin; and revising the existing name of ``Patuxent Wildlife
Research Center'' to read ``Patuxent Research Refuge'' in the State of
Maryland.
3. Section 32.23 Arkansas is amended by adding paragraph D.3. to
Cashe River National Wildlife Refuge to read as follows:
Sec. 32.23 Arkansas.
* * * * *
Cashe River National Wildlife Refuge.
* * * * *
D. Sport Fishing. * * *
* * * * *
3. Fishing and frogging is permitted in accordance with refuge
regulations and applicable state fishing and frogging regulations.
* * * * *
4. Section 32.24 California is amended by revising paragraph A.7.,
of Lower Klamath National Wildlife Refuge; and by revising paragraph
A.2., of Salton Sea National Wildlife Refuge to read as follows:
Sec. 32.24 California.
* * * * *
Lower Klamath National Wildlife Refuge.
A. Hunting of Migratory Game Birds. * * *
* * * * *
7. Only nonmotorized boats and boats with electric motors are
permitted on units 4b and 4c from the start of hunting season
through November 30. Motorized boats are permitted on units 4b and
4c from December 1 through the end of hunting season.
* * * * *
Salton Sea National Wildlife Refuge.
A. Hunting of Migratory Game Birds. * * *
* * * * *
2. Hunters must hunt from assigned blinds on the Union Tract and
within 100 feet (.9144 meters) of blind sites on the Hazard
[[Page 32418]]
Tract, except when shooting to retrieve crippled birds.
* * * * *
5. Section 32.32 Illinois is amended by removing paragraph A.4.,
and revising paragraphs D.2. and D.5 of Chautauqua National Wildlife
Refuge; by revising paragraphs C.1. and D.1. of Crab Orchard National
Wildlife Refuge; by revising Mark Twain National Wildlife Refuge; by
revising paragraphs D.1., D.2., D.3., adding paragraph D.4. of
Meredosia National Wildlife Refuge; and revising paragraph A.1., adding
paragraph A.3., revising paragraphs B.1., B.2. and B.3.; revising
paragraphs C.1., C.2., and C.3. of Upper Mississippi River Wildlife and
Fish Refuge to read as follows:
Sec. 32.32 Illinois.
* * * * *
Chautauqua National Wildlife Refuge.
* * * * *
D. Sport Fishing. * * *
* * * * *
2. Anglers must not use more than two poles and each pole must
not have more than two hooks or lures attached while fishing in the
Kikunessa Pool of Chautauqua National Wildlife Refuge.
* * * * *
5. Weis Lake on the Cameron-Billsbach Unit of Chautauqua
National Wildlife Refuge is closed to all public entry from October
16 through January 14, to provide sanctuary for migratory birds.
Crab Orchard National Wildlife Refuge.
* * * * *
C. Big Game Hunting. * * *
1. A special permit issued by the Illinois Department of Natural
Resources is required.
* * * * *
D. Sport Fishing. * * *
1. Fishing from boat is permitted all year west of Wolf Creek
Road. East of Wolf Creek Road fishing from boats is permitted from
March 15 through September 30. Fishing from the bank east of Wolf
Creek Road is permitted all year, but only at the Wolf Creek and
Route 148 causeways. Trotlines and jugs west of Wolf Creek Road must
be removed from sunrise to sunset from Memorial Day through Labor
Day. Trotlines and jugs on the entire lake must be removed on the
last day they are used. They must be anchored only with portable
weights which are removed along with the trotlines and jugs. It is
illegal to use stakes or to employ any floatation device which has
previously contained any petroleum based materials or toxic
substances. All noncommercial fishing methods are permitted except
those requiring underwater breathing apparatus.
* * * * *
Mark Twain National Wildlife Refuge.
A. Hunting of Migratory Game Birds. Hunting of migratory game
birds is permitted on designated areas of the refuge subject to
posted regulations.
B. Upland Game Hunting. Hunting of upland game is permitted on
designated areas of the refuge subject to posted regulations.
1. Only nontoxic shot may be used or possessed while hunting all
permitted birds, except wild turkeys. The possession and use of lead
shot is still permitted for wild turkey hunting.
C. Big Game Hunting. Hunting of white-tailed deer is permitted
on designated areas of the refuge subject to posted regulations.
D. Sport Fishing. Fishing is permitted on designated areas of
the refuge subject to posted regulations.
Meredosia National Wildlife Refuge
* * * * *
D. Sport Fishing. * * *
1. Sport fishing is allowed on all refuge waters during daylight
hours from January 15 through October 15.
2. From October 16 through January 14, fishing is permitted
south of Carver Lake by foot access only.
3. Private boats may not be left in refuge waters overnight.
4. Motorboats are restricted to ``slow speed/minimum wake.''
Upper Mississippi River National Wildlife and Fish Refuge
A. Hunting of Migratory Game Birds. * * *
1. Hunting of all migratory birds is prohibited on refuge closed
areas posted ``Area Closed'', on the Goose Island ``No Hunting''
zone in Pool 8, and on the Upper Halfway Creek Marsh ``No Hunting''
zone in Pool 7.
* * * * *
3. Hunters may only use and possess nontoxic shot when hunting
for any permitted migratory bird.
B. Upland Game Hunting. * * *
1. Hunting or possession of firearms are prohibited between
March 15 and the opening of the State fall hunting seasons except
that hunting of wild turkey is permitted during the State spring
turkey season.
2. Hunting is permitted on refuge areas posted ``Area Closed''
beginning the day after the close of the applicable State duck
hunting season until season closure or March 15, whichever occurs
first, except that hunting of wild turkey is permitted during the
State spring wild turkey season.
3. Hunting is prohibited at all times on the Goose Island ``No
Hunting'' zone in Pool 8, and Upper Halfway Creek Marsh ``No
Hunting'' zone in Pool 7.
* * * * *
C. Big Game Hunting. * * *
1. Hunting is permitted until season closure or March 15,
whichever date occurs first.
2. Hunting is permitted on refuge areas posted ``Area Closed''
beginning the day after the close of the applicable State duck
hunting season until season closure or March 15, whichever date
occurs first.
3. Hunting is prohibited at all times on the Goose Island ``No
Hunting'' zone in Pool 8 and Upper Halfway Creek Marsh ``No
Hunting'' zone in Pool 7.
* * * * *
6. Section 32.34 Iowa is amended by removing paragraph C.2., and
redesignating paragraphs C.3. and C.4. as paragraphs C.2. and C.3. of
Desoto National Wildlife Refuge; and by removing paragraphs C.6. and
C.7. of Driftless Area National Wildlife Refuge; and revising the
introductory text of paragraph B. and paragraph B.2. of Walnut Creek
National Wildlife Refuge to read as follows:
Sec. 32.34 Iowa.
* * * * *
DeSoto National Wildlife Refuge
* * * * *
C. Big Game Hunting. * * *
* * * * *
2. The construction or use of permanent blinds, platforms or
ladders is not permitted.
3. All stands must be removed from the refuge by the close of
the season.
* * * * *
Walnut Creek National Wildlife Refuge
* * * * *
B. Upland Game Hunting. Hunting of ringnecked pheasants,
bobwhite quail, cottontail rabbits, and squirrels is permitted on
designated areas of the refuge subject to the following conditions:
* * * * *
2. Hunting is permitted from opening of state season and will
close at the dates posted by the refuge manager.
* * * * *
7. Section 32.36 Kentucky is amended by revising paragraphs A., B.
and C., of Ohio River Islands National Wildlife Refuge to read as
follows:
Sec. 32.36 Kentucky.
* * * * *
Ohio River Islands National Wildlife Refuge
A. Hunting of Migratory Game Birds. Migratory game bird hunting
is permitted on designated areas of the refuge subject to the
following conditions:
1. Each hunter must have in his possession a current copy of the
Ohio River Islands National Wildlife Refuge Hunting Regulations
Leaflet while participating in a refuge hunt.
B. Upland Game Hunting. The hunting of rabbit and squirrel is
permitted on designated areas of the refuge subject to the following
conditions:
1. The use of dogs for pursuit while rabbit hunting is
prohibited.
2. The taking of squirrel and rabbit is restricted to shotgun
only.
3. Each hunter must have in his possession a current copy of the
Ohio River Islands National Wildlife Refuge Hunting Regulations
Leaflet while participating in a refuge hunt.
4. Hunters will possess and use, while in the field, only
nontoxic shot.
C. Big Game Hunting. The hunting of white-tailed deer is
permitted on designated areas of the refuge subject to the following
conditions:
[[Page 32419]]
1. Only archery hunting is permitted.
2. Organized deer drives by two or more hunters are prohibited.
A drive is hereby defined as the act of chasing, pursuing,
disturbing or otherwise directing deer so as to make the animals
more susceptible to harvest.
3. Baiting for deer on refuge lands is prohibited.
4. Each hunter must have in his possession a current copy of the
Ohio River Islands National Wildlife Refuge Regulations Leaflet
while participating in a refuge hunt.
* * * * *
8. Section 32.37 Louisiana is amended by revising paragraph C.1.,
of D'Arbonne National Wildlife Refuge; by revising paragraph A. of Lake
Ophelia National Wildlife Refuge; and revising paragraph C.1. of Upper
Ouachita National Wildlife Refuge to read as follows:
Sec. 32.37 Louisiana.
* * * * *
D'Arbonne National Wildlife Refuge
* * * * *
C. Big Game Hunting. * * *
1. Either-sex deer hunting with firearms is permitted during the
second and third either-sex firearms seasons for Union Parish.
* * * * *
Lake Ophelia National Wildlife Refuge
A. Hunting of Migratory Game Birds. Hunting of ducks and coots
is permitted on designated areas of the refuge subject to the
following condition:
1. Daily permits are required.
* * * * *
Upper Ouachita National Wildlife Refuge
* * * * *
C. Big Game Hunting. * * *
1. Either-sex deer hunting with firearms is permitted during the
second and third either-sex firearms seasons for Union Parish.
* * * * *
9. Section 32.38 Maine is amended by revising paragraphs A., B. and
C., of Rachel Carson National Wildlife Refuge to read as follows:
Sec. 32.38 Maine.
* * * * *
Rachel Carson National Wildlife Refuge
A. Hunting of Migratory Game Birds. Hunting of ducks, geese,
coots, woodcock and snipe is permitted on designated areas of the
refuge subject to the following conditions:
1. Permits are required.
2. Personal property must be removed from the refuge after each
day's hunt.
B. Upland Game Hunting. Hunting of upland game birds, gray
squirrel, cottontail rabbit, snowshoe hare, fox and coyote is
permitted on designated areas of the refuge subject to the following
conditions:
1. Permits are required.
2. Fox and coyote may be hunted only during the State firearm
deer season.
3. Hunters during firearms big game season must wear in a
conspicuous manner on head, chest and back a minimum of 400 square
inches (10.16 square meters) of solid-colored hunter orange clothing
or material.
4. Hunters will possess and use, while in the field, only
nontoxic shot.
C. Big Game Hunting. Hunting of deer is permitted on designated
areas of the refuge subject to the following conditions:
1. Permits are required.
2. Hunters during firearms big game season must wear in a
conspicuous manner on head, chest and back a minimum of 400 square
inches (10.16 square meters) of solid-colored hunter orange clothing
or material.
* * * * *
10. Section 32.39 Maryland is amended by revising the refuge
heading, the introductory text of paragraphs A., B. and C.; and
revising paragraph D., of Patuxent Research Refuge, to read as follows:
Sec. 32.39 Maryland.
* * * * *
Patuxent Research Refuge
A. Hunting of Migratory Game Birds. Hunting of migratory game
birds is permitted on designated areas of the refuge subject to the
following conditions:
* * * * *
B. Upland Game Hunting. Hunting of upland game is permitted on
designated areas of the refuge subject to the following conditions:
* * * * *
C. Big Game Hunting. Hunting of deer is permitted on designated
areas of the refuge subject to the following conditions:
* * * * *
D. Sport Fishing. Fishing is permitted on designated areas of
the refuge at designated times subject to the following conditions:
1. Open fishing areas are delineated on a map available at the
refuge.
2. Fresh water fishing and boating laws of the State of Maryland
apply to include opening/closing of seasons and creel limits.
3. Hook and line tackle and baits permitted by Maryland law,
except no live minnows or other fish may be used for bait.
4. Special provisions: Cash Lake, a 54 acre lake located on the
South Tract requires a federal permit to fish, and a limit of 25
daily permits will be issued. Persons may request a permit
application by contacting: National Wildlife Visitor Center, Laurel,
Maryland, during normal working hours. Each request must include the
person's name, address, and phone number, and the model, year and
license number of the vehicle that will drive to the refuge.
Requests may be made 1 week prior to the requested fishing date.
Each permit shall authorize the permit holder to be accompanied by
one licensed angler or up to two children under the age of 16. Open
season is June 15 through October 15: 6 a.m. to legal sunset daily.
Species permitted to be taken: Bass, pickerel, catfish, and sunfish.
Daily creel limits: bass, catch and release only; pickerel, catch
and release only except keeping of one pickerel greater than 15
inches in length is permitted; sunfish and catfish, 15 per day total
fish limit. Boats may be used by permittees subject to the following
conditions: no gasoline motors permitted; boats may not be trailered
to the water; boats other than canoes may not exceed 14 feet;
sailboats and kayaks are not permitted.
11. Section 32.40 Massachusetts is amended by revising paragraph
C., of Parker River National Wildlife Refuge to read as follows:
Sec. 32.40 Massachusetts.
* * * * *
Parker River National Wildlife Refuge
* * * * *
C. Big Game Hunting. Hunting of white-tailed deer is permitted
on designated areas of the refuge subject to the following
conditions:
1. A refuge permit is required.
* * * * *
12. Section 32.42 Minnesota is amended by revising introductory
text of paragraph B., of Rice Lake National Wildlife Refuge; by adding
in alphabetical order Windom Wetland Management District to read as
follows:
Sec. 32.42 Minnesota.
* * * * *
Rice Lake National Wildlife Refuge
* * * * *
B. Upland Game Hunting. Hunting of ruffed grouse, spruce grouse,
grey and fox squirrels, cottontail rabbit and snowshoe hare is
permitted on designated areas of the refuge.
* * * * *
Windom Wetland Management District
A. Hunting of Migratory Game Birds. Hunting of migratory game
birds is permitted throughout the district except that no hunting is
permitted on the Worthington Waterfowl Production Area in Nobles
County.
B. Upland Game Hunting. Upland game hunting is permitted
throughout the district except that no hunting is permitted on the
Worthington Waterfowl Production Area in Nobles County.
C. Big Game Hunting. Big game hunting is permitted throughout
the district except that no hunting is permitted on the Worthington
Waterfowl Production Area in Nobles County.
D. Sport Fishing. Fishing is permitted throughout the district.
13. Section 32.43 Mississippi is amended by revising paragraph D.,
of Dahomey National Wildlife Refuge to read as follows:
Sec. 32.43 Mississippi.
* * * * *
Dahomey National Wildlife Refuge
* * * * *
[[Page 32420]]
D. Sport Fishing. Fishing is permitted on designated areas of
the refuge subject to the following condition:
1. Permits are required.
* * * * *
14. Section 32.44 Missouri is amended by revising paragraphs B., C.
and D., of Mingo National Wildlife Refuge to read as follows:
Sec. 32.44 Missouri.
* * * * *
Mingo National Wildlife Refuge
* * * * *
B. Upland Game Hunting. Upland game hunting is permitted on
designated areas of the refuge subject to posted regulations.
C. Big Game Hunting. Big game hunting is permitted on designated
areas of the refuge subject to posted regulations.
D. Sport Fishing. Fishing is permitted on designated areas of
the refuge subject to posted regulations.
* * * * *
15. Section 32.47 Nevada is amended by revising paragraph B., of
Ash Meadows National Wildlife Refuge; and by revising paragraphs D.2,
D.4., D.5., and D.8. of Ruby Lake National Wildlife Refuge to read as
follows:
Sec. 32.47 Nevada
* * * * *
Ash Meadows National Wildlife Refuge
* * * * *
B. Upland Game Hunting. Hunting of quail, cottontail rabbits,
and jackrabbits is permitted on designated areas of the refuge
subject to the following conditions:
1. Hunting of cottontail rabbits and jackrabbits is permitted
only during the State quail hunting season.
2. Only shotguns are permitted.
* * * * *
Ruby Lake National Wildlife Refuge
* * * * *
D. Sport Fishing. * * *
* * * * *
2. Only dike fishing is permitted in the areas north of the
Brown Dike and east of the Collection Ditch with the exception that
fishing by wading and from personal flotation devices (float tubes)
is permitted in Unit 21.
* * * * *
4. Annually, beginning June 15 and continuing until December 31,
motorless boats and boats with battery powered electric motors are
permitted only on the South Marsh.
5. Annually, beginning August 1 and continuing until December
31, boats propelled with a motor or combination of motors in
aggregate not to exceed 10 horse-power rating are permitted on the
South Marsh.
* * * * *
8. Bank fishing in the South Marsh is only permitted at Brown
Dike, the Main Boat Landing, and Narciss Boat Landing.
* * * * *
16. Section 32.50 New Mexico is amended by revising paragraphs A.1.
and D., of Bitter Lake National Wildlife Refuge to read as follows:
Sec. 32.50 New Mexico.
* * * * *
Bitter Lake National Wildlife Refuge
A. Hunting of Migratory Game Birds. * * *
1. Hunting is permitted only on Tuesdays, Thursdays, and
Saturdays of each week until 1 p.m.
* * * * *
D. Sport Fishing. [Reserved]
* * * * *
17. Section 32.52 North Carolina is amended by revising paragraphs
C. and D.3., of Mattamuskeet National Wildlife Refuge; and revising Pee
Dee National Wildlife Refuge to read as follows:
Sec. 32.52 North Carolina.
* * * * *
Mattamuskeet National Wildlife Refuge
* * * * *
C. Big Game Hunting. Hunting of white-tailed deer is permitted
on designated areas of the refuge subject to the following
condition:
1. Permits are required.
D. Sport Fishing. * * *
* * * * *
3. Herring (alewife) dipping is not permitted.
* * * * *
Pee Dee National Wildlife Refuge
A. Hunting of Migratory Game Birds. Hunting of mourning doves is
permitted on designated areas of the refuge subject to the following
condition:
1. Permits are required.
B. Upland Game Hunting. Hunting of quail, squirrel, rabbit,
raccoon and opossum is permitted on designated areas of the refuge
subject to the following condition:
1. Permits are required.
C. Big Game Hunting. Hunting of white-tailed deer is permitted
on designated areas of the refuge subject to the following
condition:
1. Permits are required and special quota permits are required
for gun deer hunts.
D. Sport Fishing. Fishing is permitted on designated areas of
the refuge subject to the following conditions:
1. Fishing with a pole and line or rod and reel is permitted
from March 15 to October 15 during daylight hours only.
2. Boats may be used in Andrews Pond, Beaver Ponds, and
Arrowhead Lake only.
3. Only electric motors are permitted in refuge waters.
4. The possession and/or use of trotlines, set hooks, gigs, yo-
yo's, jug-lines, limblines, nets, seines, fish traps, and other
similar equipment is prohibited on the refuge.
5. The possession and/or use of minnows as bait is prohibited on
the refuge.
6. Frogging and turtling is prohibited.
7. Certain fishing areas may be closed at anytime for management
purposes.
* * * * *
18. Section 32.55 Oklahoma is amended by revising paragraphs A., B.
and C., of Deep Fork National Wildlife Refuge; and by revising
paragraphs A., B.1., B.2., C. and D.1.; adding paragraphs B.3, B.4.,
B.5., and D.4., of Sequoyah National Wildlife Refuge to read as
follows:
Sec. 32.55 Oklahoma.
* * * * *
Deep Fork National Wildlife Refuge
A. Hunting of Migratory Game Birds. [Reserved]
B. Upland Game Hunting. Hunting of squirrel is permitted on
portions of the refuge in accordance with State hunting regulations
subject to the following exceptions and conditions:
1. Refuge squirrel season will be closed from October 1 through
the end of rifle deer season.
2. Shotguns only with steel shot may be used.
3. Dogs may be used for squirrel hunting, but must remain under
control of the hunter at all times.
4. Hunting maps and/or posted signs will be used to delineate
open and closed areas.
5. Off-road vehicles are prohibited.
C. Big Game Hunting. White-tailed deer hunting is permitted on
designated portions of Deep Fork NWR subject to the following
conditions:
1. Permits and payment of fees are required.
2. Off-road vehicle use is prohibited.
3. Each hunter entering the refuge must possess a refuge permit.
* * * * *
Sequoyah National Wildlife Refuge
A. Hunting of Migratory Game Birds. Hunting of waterfowl, dove,
coots, rail, snipe and woodcock is permitted on designated areas of
the refuge subject to the following conditions:
1. The Sequoyah National Wildlife Refuge is open during seasons,
dates, and times as posted by signs and/or indicated on refuge
leaflets, special regulations, permits, and maps.
2. All hunters shall possess and use, while in the field, only
nontoxic shot.
3. Pits and permanent blinds are not permitted.
4. Neither hunters nor dogs may enter closed areas to retrieve
game.
5. Hunting is not allowed within 50 ft. (15.24 meters) of
designated roads or parking areas.
6. Only shotguns and bows and arrows (excluding broadhead
arrows) are permitted.
7. Decoys, boats and other personal property must be removed
from the refuge following each days hunt.
B. Upland Game Hunting. * * *
1. The Sequoyah National Wildlife Refuge is open during seasons,
dates, and times as posted by signs and/or indicated on refuge
[[Page 32421]]
leaflets, special regulations, permits, and maps.
2. All hunters shall possess and use, while in the field, only
nontoxic shot.
3. Neither hunters nor dogs may enter closed areas to retrieve
game.
4. Hunting is not allowed within 50 ft. (15.24 meters) of
designated roads or parking areas.
5. Only shotguns and bows and arrows (excluding broadhead
arrows) are permitted.
C. Big Game Hunting. Hunting of white-tailed deer is permitted
on designated areas of the refuge subject to the following
conditions:
1. Permits and payment of a fee are required
2. All hunters must attend a hunter orientation briefing prior
to each hunt.
D. Sport Fishing. * * *
1. The Sequoyah National Wildlife Refuge is open to fishing as
specified on refuge leaflets, special regulations, permits, maps, or
as posted on signs.
* * * * *
4. The taking of turtles and mussels is not permitted.
* * * * *
19. Section 32.56 Oregon is amended by revising paragraph B.3, of
Cold Springs National Wildlife Refuge; by revising paragraph B.3. of
McKay Creek National Wildlife Refuge, and by revising paragraph B.3. of
Umatilla National Wildlife Refuge to read as follows:
Sec. 32.56 Oregon.
* * * * *
Cold Springs National Wildlife Refuge
* * * * *
B. Upland Game Hunting. * * *
* * * * *
3. Hunters shall possess and use, while in the field, only
nontoxic shot.
* * * * *
McKay Creek National Wildlife Refuge
* * * * *
B. Upland Game Hunting. * * *
* * * * *
3. Hunters shall possess and use, while in the field, only
nontoxic shot.
* * * * *
Umatilla National Wildlife Refuge
A. Hunting of Migratory Game Birds. * * *
* * * * *
B. Upland Game Hunting. * * *
* * * * *
3. Hunters shall possess and use, while in the field, only
nontoxic shot.
* * * * *
20. Section 32.57 Pennsylvania is amended by revising paragraphs
A., B. and C., of Ohio River Islands National Wildlife Refuge to read
as follows:
Sec. 32.57 Pennsylvania.
* * * * *
Ohio River Islands National Wildlife Refuge
A. Hunting of Migratory Game Birds. Migratory game bird hunting
is permitted on designated areas of the refuge subject to the
following conditions:
1. Each hunter must have in his possession a current copy of the
Ohio River Islands National Wildlife Refuge Hunting Regulations
Leaflet while participating in a refuge hunt.
B. Upland Game Hunting. The hunting of rabbit and squirrel is
permitted on designated areas of the refuge subject to the following
conditions:
1. The use of dogs for pursuit while rabbit hunting is
prohibited.
2. The taking of squirrel and rabbit is restricted to shotgun
only.
3. Each hunter must have in his possession a current copy of the
Ohio River Islands National Wildlife Refuge Hunting Regulations
Leaflet while participating in a refuge hunt.
4. Hunters will possess and use, while in the field, only
nontoxic shot.
C. Big Game Hunting. The hunting of white-tailed deer is
permitted on designated areas of the refuge subject to the following
conditions:
1. Only archery hunting is permitted.
2. Organized deer drives by two or more hunters are prohibited.
A drive is hereby defined as the act of chasing, pursuing,
disturbing or otherwise directing deer so as to make the animals
more susceptible to harvest.
3. Baiting for deer on refuge lands is prohibited.
4. Each hunter must have in his possession a current copy of the
Ohio River Islands National Wildlife Refuge Regulations Leaflet
while participating in a refuge hunt.
* * * * *
21. Section 32.64 Utah is amended by revising paragraphs A., B. and
D. of Bear River Migratory Bird Refuge to read as follows:
Sec. 32.64 Utah.
* * * * *
Bear River Migratory Bird Refuge
A. Hunting of Migratory Game Birds. Hunting of geese, ducks,
coots, and tundra swan is permitted on designated areas of the
refuge subject to the following conditions:
1. No hunting or shooting is permitted within 100 yards (30.48
meters) of principal refuge roads (the tour route).
2. All firearms must be completely unloaded (including the
magazine) and cased or dismantled when hunters are in a vehicle or
while on principle refuge roads (the tour route) and parking sites.
3. While in the field, hunters shall possess and use only
nontoxic shot.
4. Use of pits or permanent blinds is not permitted.
5. Airboats are permitted only in Unit 9 and in Block C of the
Refuge.
6. The Refuge, including parking sites, is closed ninety (90)
minutes after sunset (end of shooting hours). Decoys, boats,
vehicles and other personal property may not be left on the refuge
overnight.
7. Parking is permitted in designated parking sites only.
8. Hunters who take or attempt to take tundra swans must possess
a Utah State Swan Permit and may not possess or use more than 10
shells per day while hunting swans.
9. Any person entering, using or occupying the refuge for
waterfowl hunting must abide by all the terms and conditions in the
Refuge hunting brochure.
B. Upland Game Hunting. Hunting of pheasants is permitted on
designated areas of the refuge subject to the following conditions:
1. While in the field, hunters shall possess and use only
nontoxic shot.
C. Big Game Hunting. * * *
D. Sport Fishing. Fishing is permitted on designated areas of
the Refuge subject to the following conditions:
1. Fishing is permitted year-round in designated areas of the
Refuge.
* * * * *
22. Section 32.65 Vermont is amended by revising introductory text
of paragraph B., and revising paragraph B.2. of Missisquoi National
Wildlife Refuge to read as follows:
Sec. 32.65 Vermont.
* * * * *
Missisquoi National Wildlife Refuge
* * * * *
B. Upland Game Hunting. Hunting of rabbits, ruffed grouse and
squirrels is permitted on designated areas of the refuge subject to
the following conditions:
* * * * *
2. The use of rifles is not permitted on that portion of the
refuge lying east of the Missisquoi River.
* * * * *
23. Section 32.66 Virginia is amended by revising paragraph C., of
Chincoteague National Wildlife Refuge to read as follows:
* * * * *
Sec. 32.66 Virginia.
* * * * *
Chincoteague National Wildlife Refuge
* * * * *
C. Big Game Hunting. Hunting of white-tailed deer and sika is
permitted in designated areas of the refuge subject to the following
conditions:
1. A refuge permit is required.
* * * * *
24. Section 32.67 Washington is amended by revising paragraph A.,
of Ridgefield National Wildlife Refuge; and by revising paragraph B.2.,
of Toppenish National Wildlife Refuge to read as follows:
Sec. 32.67 Washington.
* * * * *
Ridgefield National Wildlife Refuge
A. Hunting of Migratory Game Birds. Hunting of geese, ducks, and
coots is
[[Page 32422]]
permitted on designated areas of the refuge subject to the following
condition: Hunting is by permit only.
* * * * *
Toppenish National Wildlife Refuge
* * * * *
B. Upland Game Hunting. * * *
* * * * *
2. Hunters shall possess and use, while in the field, only
nontoxic shot.
* * * * *
25. Section 32.69 Wisconsin is amended by revising paragraphs B.1.,
B.2., C.4. and D., of Necedah National Wildlife Refuge; and adding
Upper Mississippi River National Wildlife and Fish Refuge
alphabetically to read as follows:
Sec. 32.69 Wisconsin.
* * * * *
Necedah National Wildlife Refuge
* * * * *
B. Upland Game Hunting. * * *
1. During State waterfowl hunting season, guns must be unloaded
or cased in the retrieval zone of Refuge Area 7.
2. During the spring turkey hunting season only, persons having
an unexpired State spring turkey permit in possession may enter and
hunt wild turkeys in all open refuge areas.
* * * * *
C. Big Game Hunting. * * *
* * * * *
4. Refuge Areas 1,2,4,5,6 and 7 are open to deer hunting.
* * * * *
D. Sport Fishing. Fishing is permitted on designated areas of
the refuge at designated times subject to the following conditions.
1. Non-motorized boats are permitted in Sprague-Goose Pools only
when these pools are open to fishing. Motorized boats are permitted
in Suk Cerney Pool.
* * * * *
Upper Mississippi River National Wildlife and Fish Refuge
A. Hunting of Migratory Game Birds. Hunting of migratory game
birds is permitted on designated areas of the refuge subject to the
following conditions:
1. Hunting of all migratory birds is prohibited on refuge closed
areas posted ``Area Closed'', on the Goose Island ``No Hunting''
zone in Pool 8, and on the Upper Halfway Creek Marsh ``No Hunting''
zone in Pool 7.
2. Permits are required for Potters Marsh in Pool 13 except
during the early teal season.
B. Upland Game Hunting. Hunting of upland game is permitted on
designated areas of the refuge subject to the following conditions:
1. Hunting or possession of firearms are prohibited between
March 15 and the opening of the State fall hunting seasons except
that hunting of wild turkey is permitted during the State spring
turkey season.
2. Hunting is permitted on refuge areas posted ``Area Closed''
beginning the day after the close of the applicable State duck
hunting season until season closure or March 15, whichever occurs
first, except that hunting of wild turkey is permitted during the
State spring wild turkey season.
3. Hunting is prohibited at all times on the Goose Island ``No
Hunting'' zone in Pool 8, and Upper Halfway Creek Marsh ``No
Hunting'' zone in Pool 7.
C. Big Game Hunting. Hunting of white-tailed deer is permitted
on designated areas of the refuge subject to the following
conditions:
1. Hunting is permitted until season closure or March 15,
whichever date occurs first.
2. Hunting is permitted on refuge areas posted ``Area Closed''
beginning the day after the close of the applicable State duck
hunting season until season closure or March 15, whichever date
occurs first.
3. Hunting is prohibited at all times on the Goose Island ``No
Hunting'' zone in Pool 8 and Upper Halfway Creek Marsh ``No
Hunting'' zone in Pool 7.
4. Construction or use of permanent blinds, platforms or ladders
is not permitted.
5. All stands must be removed from the refuge at the end of each
day's hunt.
D. Sport Fishing. Fishing is permitted on designated areas of
the refuge subject to the following conditions:
1. Fishing on the Spring Lake Closed Area, Carroll County,
Illinois, is not permitted from October 1 through the last day of
the Illinois waterfowl season.
2. Only hand powered boats or boats with electric motors are
permitted on Mertes' Slough in Buffalo County, Wisconsin.
26. Section 32.71 Pacific Islands Territory is amended by revising
paragraphs D.1., D.3., D.4., removing paragraph D.5., and redesignating
paragraph D.6 as paragraph D.5. of Johnson Atoll National Wildlife
Refuge to read as follows:
Sec. 32.71 Pacific Islands Territory.
* * * * *
Johnson Atoll National Wildlife Refuge
* * * * *
D. Sport Fishing. * * *
1. Lobsters of 31/4 inch carapace length or more may be taken
from the lagoon area from September 1 through May 31, but not by
spearing, traps, or the use of pry bars or related methods
destructive to coral; no female lobsters bearing eggs may be taken
at any time.
* * * * *
3. Taking of fish by the use of spear ``guns'' is prohibited.
Hand-propelled speaxs or ``Hawaiian Slings'' consisting of a single
shaft propelled by a rubber tube are permitted for underwater taking
of fish. Above water use of spears is prohibited.
4. The collecting or taking of all forms of live or dead coral
is prohibited; the export of coral by any means is prohibited.
* * * * *
Dated: June 3, 1996.
George T. Frampton, Jr.,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 96-15138 Filed 6-21-96; 8:45 am]
BILLING CODE 4310-55-P
Continue your research in ChatGPT or Claude
Connect Omnilex to search the legal corpus from your AI assistant.