issue-1996-07-22•Federal Register proposed rules — 1996-07-22
Federal Register proposed rules — 1996-07-22
issue-1996-07-22Federal Register proposed rules — 1996-07-22Proposed 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. 96-18548 Special Conditions: deHavilland DHC-8-400 Airplane; High- Intensity Radiated Fields
[Federal Register Volume 61, Number 141 (Monday, July 22, 1996)]
[Proposed Rules]
[Pages 37844-37845]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18548]
========================================================================
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.
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Federal Register / Vol. 61, No. 141 / Monday, July 22, 1996 /
Proposed Rules
[[Page 37844]]
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 25
[Docket No. NM-128; Notice No. SC-96-3-NM]
Special Conditions: deHavilland DHC-8-400 Airplane; High-
Intensity Radiated Fields
AGENCY: Federal Aviation Administration, DOT.
ACTION: Notice of proposed special conditions.
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SUMMARY: This notice proposes special conditions for the deHavilland
DHC-8-400 airplane. This airplane will utilize new avionics/electronic
systems that provide critical data to the flightcrew. The applicable
regulations do not contain adequate or appropriate safety standards for
the protection of these systems from the effects of high-intensity
radiated fields. These proposed special conditions contain the
additional safety standards that the Administrator considers necessary
to establish a level of safety equivalent to that established by the
existing airworthiness standards.
DATES: Comments must be received on or before September 5, 1996.
ADDRESSES: Comments on this proposal may be mailed in duplicate to:
Federal Aviation Administration, Office of the Assistant Chief Counsel,
Attn: Rules Docket (ANM-7), Docket No. NM-128, 1601 Lind Avenue SW.,
Renton, Washington, 98055-4056; or delivered in duplicate to the Office
of the Assistant Chief Counsel at the above address. Comments must be
marked: Docket No. NM-128. Comments may be inspected in the Rules
Docket weekdays, except Federal holidays, between 7:30 a.m. and 4:00
p.m.
FOR FURTHER INFORMATION CONTACT:
Phil Forde, FAA, Standardization Branch, ANM-113, Transport Airplane
Directorate, Aircraft Certification Service, 1601 Lind Avenue SW.,
Renton, Washington, 98055-4056, telephone (206) 227-2146 or facsimile
(206) 227-1149.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested persons are invited to participate in the making of
these proposed special conditions by submitting such written data,
views, or arguments as they may desire. Communications should identify
the regulatory docket or notice number and be submitted in duplicate to
the address specified above. All communications received on or before
the closing date for comments will be considered by the Administrator
before further rulemaking action on this proposal is taken. The
proposals contained in this notice may be changed in light of the
comments received. All comments received will be available, both before
and after the closing date for comments, in the Rules Docket for
examination by interested parties. A report summarizing each
substantive public contact with FAA personnel concerning this
rulemaking will be filed in the docket. Commenters wishing the FAA to
acknowledge receipt of their comments submitted in response to this
notice must include a self-addressed, stamped postcard on which the
following statement is made: ``Comments to Docket No. NM-128.'' The
postcard will be dated stamped and returned to the commenter.
Background
On January 31, 1995, the de Havilland Aircraft Company of Canada,
Garratt Boulevard, Downsview, Ontario M3K1Y5, applied for an amendment
to their Type Certificate No. A13NM to include their new model Dash 8
Series 400 (DHC-8-400), Model 401/402 airplane, which is a derivative
of the DHC-8-300. The DHC-8-400 is a high wing, T-tail, twin engine,
turbopropeller powered regional transport. Each engine will be capable
of delivering 4830 shaft horsepower. The flight controls are manual,
except for the tandem rudder which will be hydraulically powered. The
airplane has a seating capacity of up to 78, and a maximum takeoff
weight of 62,500 pounds.
Type Certification Basis
Under the provisions of 14 CFR Sec. 21.101, deHavilland must show
that the DHC-8-400 meets the applicable provisions of the regulations
incorporated by reference in Type Certificate No. A13NM, or the
applicable regulations in effect on the date of application for the
change to the Model 300. The regulations incorporated by reference in
the type certificate are commonly referred to as the ``original type
certification basis.'' The regulations incorporated by reference in
Type Certificate No. A13NM include part 25, as amended by Amendments
25-1 through 25-83. In addition to the applicable airworthiness
regulations and special conditions, the DHC-8-400 must comply with the
fuel vent and exhaust emission requirements of part 34, effective
September 10, 1990, plus any amendments in effect at the time of
certification; and the noise certification requirements of part 36,
effective December 1, 1969, as amended by Amendment 36-1 through the
amendment in effect at the time of certification. No exemptions are
anticipated. The special conditions that may be developed as a result
of this notice will form an additional part of the type certification
basis.
If the Administrator finds that the applicable airworthiness
regulations (i.e., part 25, as amended) do not contain adequate or
appropriate safety standards for the DHC-8-400 because of a novel or
unusual design feature, special conditions are prescribed under the
provisions of Sec. 21.16 to establish a level of safety equivalent to
that established in the regulations.
Special conditions, as appropriate, are issued in accordance with
Sec. 11.49 of the FAR after public notice, as required by Secs. 11.28
and 11.29(b), and become part of the type certification basis in
accordance with Sec. 21.101(b)(2).
Special conditions are initially applicable to the model for which
they are issued. Should the type certificate for that model be amended
later to include any other model that incorporates the same novel or
unusual design feature, or should any other model already included on
the same type certificate be modified to incorporate the same novel or
unusual design feature, the special conditions would also apply to the
other model under the provisions of Sec. 21.101(a)(1).
Novel or Unusual Design Features
The DHC-8-400 airplane avionics enhancement will utilize electronic
systems that perform critical functions,
[[Page 37845]]
including a digital Electronic Flight Instrument System (EFIS),
attitude and heading reference systems (AHRS), and air data systems
(ADS). These systems may be vulnerable to high-intensity radiated
fields (HIRF) external to the airplane.
Discussion
There is no specific regulation that addresses protection
requirements for electrical and electronic systems from HIRF. Increased
power levels from ground based radio transmitters, and the growing use
of sensitive electrical and electronic systems to command and control
airplanes, have made it necessary to provide adequate protection.
To ensure that a level of safety is achieved equivalent to that
intended by the regulations incorporated by reference, special
conditions are needed for the DHC-8-400, which require that new
technology electrical and electronic systems, such as the EFIS, AHRS
and ADS, be designed and installed to preclude component damage and
interruption of function due to both the direct and indirect effects of
HIRF.
High-Intensity Radiated Fields
With the trend toward increased power levels from ground based
transmitters, plus the advent of space and satellite communications,
coupled with electronic command and control of the airplane, the
immunity of critical digital avionics systems to HIRF must be
established.
It is not possible to precisely define the HIRF to which the
airplane will be exposed in service. There is also uncertainty
concerning the effectiveness of airframe shielding for HIRF.
Furthermore, coupling of electromagnetic energy to cockpit-installed
equipment through the cockpit window apertures is undefined. Based on
surveys and analysis of existing HIRF emitters, an adequate level of
protection exists when compliance with the HIRF protection special
condition is shown with either paragraphs 1 or 2 below:
1. A minimum threat of 100 volts per meter peak electric field
strength from 10 KHz to 18 GHz.
a. The threat must be applied to the system elements and their
associated wiring harnesses without the benefit of airframe shielding.
b. Demonstration of this level of protection is established through
system tests and analysis.
2. A threat external to the airframe of the following field
strengths for the frequency ranges indicated.
------------------------------------------------------------------------
Peak (V/ Average
Frequency M) (V/M)
------------------------------------------------------------------------
10 KHz-100 KHz.................................... 50 50
100 KHz-500 KHz................................... 60 60
500 KHz-2000 KHz.................................. 70 70
2 MHz-30 MHz...................................... 200 200
30 MHz-100 MHz.................................... 30 30
100 MHz-200 MHz................................... 150 33
200 MHz-400 MHz................................... 70 70
400 MHz-700 MHz................................... 4,020 935
700 MHz-1000 MHz.................................. 1,700 170
1 GHz-2 GHz....................................... 5,000 990
2 GHz-4 GHz....................................... 6,680 840
4 GHz-6 GHz....................................... 6,850 310
6 GHz-8 GHz....................................... 3,600 670
8 GHz-12 GHz...................................... 3,500 1,270
12 GHz-18 GHz..................................... 3,500 360
18 GHz-40 GHz..................................... 2,100 750
------------------------------------------------------------------------
As discussed above, these special conditions would be applicable
initially to the DHC-8-400 airplane. Should de Havilland apply at a
later date for a change to the type certificate to include another
incorporating the same novel or unusual design feature, the special
conditions would apply to that model as well, under the provisions of
Sec. 21.101(a)(1).
Conclusion
This action affects certain design features only on the modified
DHC-8-400 airplane. It is not a rule of general applicability and
affects only the manufacturer who applied to the FAA for approval of
these features on the airplane.
List of Subjects in 14 CFR Part 25
Aircraft, Aviation safety, Reporting and record keeping
requirements.
The authority citation for these proposed special conditions is as
follows:
Authority: 49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
The Proposed Special Conditions
Accordingly, the Federal Aviation Administration (FAA) proposes the
following special conditions as part of the type certification basis
for the deHavilland DHC-8-400 series airplanes.
1. Protection from Unwanted Effects of High-Intensity Radiated
Fields (HIRF). Each electrical and electronic system that performs
critical functions must be designed and installed to ensure that the
operation and operational capacity of these systems to perform critical
functions are not adversely affected when the airplane is exposed to
high-intensity radiated fields.
2. For the purpose of this special condition, the following
definition applies:
Critical Functions. Functions whose failure would contribute to or
cause a failure condition that would prevent the continued safe flight
and landing of the airplane.
Issued in Renton, Washington, on July 9, 1996.
Darrell M. Pederson,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-18548 Filed 7-19-96; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-18473 Amendments to Gas Valuation Regulations for Federal Leases
[Federal Register Volume 61, Number 141 (Monday, July 22, 1996)]
[Proposed Rules]
[Page 37865]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18473]
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DEPARTMENT OF THE INTERIOR
Minerals Management Service
30 CFR Part 206
RIN 1010-AC02
Amendments to Gas Valuation Regulations for Federal Leases
AGENCY: Minerals Management Service, Interior.
ACTION: Proposed rule; notice of extension of public comment period.
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SUMMARY: The Minerals Management Service (MMS) hereby gives notice that
it is extending the public comment period on a Notice of reopening of
public comment period, which was published in the Federal Register on
May 21, 1996 (61 FR 25421). The proposed rule would amend the
regulations governing the valuation for royalty purposes of natural gas
produced from Federal leases. In response to requests for additional
time, MMS will extend the comment period from July 22, 1996, to August
19, 1996.
DATES: Comments must be received by 4 p.m. Mountain daylight time on
August 19, 1996.
ADDRESSES: Written comments should be sent to the Minerals Management
Service, P.O. Box 25165, Mail Stop 3101, Denver, Colorado 80225-0165;
courier address: Building 85, Denver Federal Center, Denver, Colorado
80225-0165, Attention: David S. Guzy.
FOR FURTHER INFORMATION CONTACT: David S. Guzy, Chief, Rules and
Procedures Staff, telephone (303) 231-3432 or (FTS) 231-3432.
Dated: July 15, 1996.
James W. Shaw,
Associate Director for Royalty Management.
[FR Doc. 96-18473 Filed 7-18-96; 8:45 am]
BILLING CODE 4310-MR-P
Complete official Federal Register PDF
FR Doc. 96-18438 Labeling of Orally Ingested Over-the-Counter Drug Products Containing Calcium, Magnesium, and Potassium; Extension of Comment Period
[Federal Register Volume 61, Number 141 (Monday, July 22, 1996)]
[Proposed Rules]
[Page 38047]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18438]
Federal Register / Vol. 61, No. 141 / Monday, July 22, 1996 /
Proposed Rules
[[Page 38047]]
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration
21 CFR Parts 201 and 331
[Docket No. 95N-0254]
RIN 0910-AA63
Labeling of Orally Ingested Over-the-Counter Drug Products
Containing Calcium, Magnesium, and Potassium; Extension of Comment
Period
AGENCY: Food and Drug Administration, HHS.
ACTION: Notice of proposed rulemaking; extension of comment period.
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SUMMARY: The Food and Drug Administration (FDA) is extending to
September 20, 1996, the comment period on the notice of proposed
rulemaking to amend the general labeling provisions for over-the-
counter (OTC) drug products intended for oral ingestion to require the
content per dosage unit and warning labeling when the product contains
certain levels of calcium, magnesium, or potassium. The notice of
proposed rulemaking was published in the Federal Register of April 22,
1996 (61 FR 17807). FDA is taking this action in response to a request
for extension of the comment period to allow interested persons
additional time to comment on the notice of proposed rulemaking.
DATES: Written comments by September 20, 1996. Written comments on the
agency's economic impact determination by September 20, 1996.
ADDRESSES: Submit 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: William E. Gilbertson, Center for Drug
Evaluation and Research (HFD-105), Food and Drug Administration, 5600
Fishers Lane, Rockville, MD 20857, 301-827-2304.
SUPPLEMENTARY INFORMATION: In the Federal Register of April 22, 1996
(61 FR 17807), FDA published a notice of proposed rulemaking to amend
the general labeling provisions for OTC drug products to require that
the labeling of all OTC drug products intended for oral ingestion
include: (1) The calcium content per dosage unit when the product
contains 20 milligrams (mg) or more per single dose; (2) a warning
statement that persons with kidney stones and persons on a calcium-
restricted diet should not take the product unless directed by a doctor
when the product contains more than 3.2 grams of calcium in the labeled
maximum daily dose; (3) the magnesium content per dosage unit when the
product contains 8 mg or more per single dose; (4) a warning statement
that persons with kidney disease and persons on a magnesium-restricted
diet should not take the product unless directed by a doctor if the
product contains more than 600 mg magnesium in the labeled maximum
daily dose; (5) the potassium content per dosage unit when the product
contains 5 mg or more per single dose; and (6) a warning statement that
persons with kidney disease and persons on a potassium-restricted diet
should not take the product unless directed by a doctor if the product
contains more than 975 mg potassium in the labeled maximum daily dose.
FDA issued the notice of proposed rulemaking in order to provide
uniform calcium, magnesium, and potassium content and warning labeling
for all OTC drug products intended for oral ingestion whether marketed
under an OTC drug monograph, an approved application, or no
application.
On June 18, 1996, Nonprescription Drug Manufacturers Association
(NDMA), a trade association of nonprescription drug manufacturers,
requested a 60-day extension in which to file comments and new
information. NDMA noted FDA's request for comments on recent scientific
information to consider in setting requirements for OTC drug product
labeling for products containing these ingredients (cations), the
potential far-reaching nature of the proposal, and what NDMA termed
``possible substantial economic impact'' as a basis for its request for
an extension of the comment period. NDMA also had a number of questions
on a related final rule for sodium labeling for OTC drug products
published in the Federal Register of April 22, 1996 (61 FR 17798),
which FDA has addressed in a recent feedback letter (Ref. 1).
FDA has carefully considered the request and acknowledges the broad
scope of the notice of proposed rulemaking, which would affect products
in several therapeutic categories. Manufacturers may require additional
time to obtain information, including scientific information, and
comment on the notice of proposed rulemaking. Although the agency has a
policy of generally not extending such comment periods, FDA considers
an extension of time for comments in this case to be in the public
interest and is therefore extending the comment period for an
additional 60 days.
Interested persons may, on or before September 20, 1996, submit to
the Dockets Management Branch (address above) written comments on the
notice of proposed rulemaking. Three 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 the 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.
Reference
-1. Letter from Debra Bowen, FDA, to R. W. Soller, NDMA, July
15, 1996, in Docket No. 95N-0254, Dockets Management Branch.
Dated: July 15, 1996.
William K. Hubbard,
Associate Commissioner for Policy Coordination.
[FR Doc. 96-18438 Filed 7-19-96; 8:45 am]
BILLING CODE 4160-01-F
Complete official Federal Register PDF
FR Doc. 96-18432 Defense Federal Acquisition Regulation Supplement; Certificate of Competency
[Federal Register Volume 61, Number 141 (Monday, July 22, 1996)]
[Proposed Rules]
[Pages 37878-37879]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18432]
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DEPARTMENT OF DEFENSE
48 CFR Parts 219 and 252
[DFARS Case 96-D003]
Defense Federal Acquisition Regulation Supplement; Certificate of
Competency
AGENCY: Department of Defense (DoD).
ACTION: Proposed rule with request for comments.
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SUMMARY: The Director of Defense Procurement is proposing to amend the
Defense Federal Acquisition Regulation Supplement (DFARS) to implement
revisions made to the Small Business Administration's regulations
covering the Procurement Assistance Programs (Part 125, Chapter I,
Title 13 of the Code of Federal Regulations).
DATES: Comments on the proposed rule should be submitted in writing to
the address shown below on or before September 20, 1996, to be
considered in the formulation of the final rule.
ADDRESSES: Interested parties should submit written comments to:
Defense Acquisition Regulations Council, Attn: Ms. Susan L. Schneider,
[[Page 37879]]
PDUSD(A&T)DP(DAR), IMD 3D139, 3062 Defense Pentagon, Washington, DC
20301-3062. Telefax number (703) 602-0350. Please cite DFARS Case 96-
D003 in all correspondence related to this issue.
FOR FURTHER INFORMATION CONTACT:
Susan Schneider, (703) 602-0131.
SUPPLEMENTARY INFORMATION:
A. Background
This proposed rule amends DFARS Parts 219 and 252 to implement
changes made to the Small Business Administration's (SBA) regulations
(Part 125, Chapter I, Title 13 of the Code of Federal Regulations). The
proposed rule (1) updates the names of the SBA offices involved in
processing Certificates of Competency in order to conform with final
revisions to SBA regulations; (2) removes language referencing set-
aside preferences for a small disadvantaged business manufacturer or
regular dealer owned by an Indian tribe, including an Alaska Native
Corporation, because the underlying statutes (Section 8051 of the 1994
Defense Authorization Act and Section 8012 of the 1995 Defense
Authorization Act) are no longer in effect; (3) replaces the term
``regular dealer'' with ``nonmanufacturer'' to conform with final
revisions to Department of Labor regulations; and (4) provides a DFARS
definition for the term ``nonmanufacturer.''
B. Regulatory Flexibility Act
The 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
does not impose any new requirements on contractors, large or small.
The proposed rule merely implements the SBA rule to clarify its
applicability within the Department of Defense and makes administrative
changes consistent with the changes in 13 CFR Part 125. An initial
regulatory flexibility analysis has therefore not been performed.
Comments are invited from small businesses and other interested
parties. Comments from small entities concerning the affected DFARS
subparts will also be considered in accordance with Section 610 of the
Act. Such comments must be submitted separately and cite DFARS Case 96-
D003 in correspondence.
C. Paperwork Reduction Act
The proposed rule does not impose any new reporting or
recordkeeping requirements which require Office of Management and
Budget approval under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Parts 219 and 252
Government procurement.
Michele P. Peterson,
Executive Editor, Defense Acquisition Regulations Council.
Therefore, it is proposed that 48 CFR Parts 219 and 252 be amended
as follows:
1. The authority citation for 48 CFR Parts 219 and 252 continues to
read as follows:
Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.
PART 219--SMALL BUSINESS PROGRAMS
2. Section 219.602-3 is amended by revising paragraph (c)(i)(A) to
read as follows:
219.602-3 Resolving differences between the agency and the Small
Business Administration.
(c)(i) * * *
(A) A request for appeal, summarizing the issues. The request must
be sent to arrive within five working days after receipt of the SBA
Headquarters written position.
* * * * *
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
3. Section 252.219-7006 is amended by adding in paragraph (a), in
alphabetical order, a definition of ``Nonmanufacturer''; and by
revising the introductory text of paragraph (d)(1), paragraph (d)(2),
and Alternate I to read as follows:
252.219-7006 Notice of evaluation preference for small disadvantaged
business concerns.
* * * * *
(a) * * *
``Nonmanufacturer,'' as used in this clause, means a small
disadvantaged business concern which, although not involved in the
manufacture of the supplies required by the solicitation, is engaged
in continuing sales of such supplies to the public.
* * * * *
(d) * * *
(1) A small disadvantaged business concern, historically black
college or university, or minority institution offeror agrees that
in performance of the contract, in the case of a contract for--
* * * * *
(2) A small disadvantaged business, historically black college
or university, or minority institution nonmanufacturer submitting an
offer in its own name agrees to furnish in performing this contract
only end items manufactured or produced by small disadvantaged
business concerns, historically black colleges or universities, or
minority institutions in the United States.
* * * * *
ALTERNATE I (DATE)
As prescribed in 219.7003, substitute the following paragraph
(d)(2) for paragraph (d)(2) of the basic clause:
(d)(2) A small disadvantaged business, historically black
college or university, or minority institution nonmanufacturer
submitting an offer in its own name agrees to furnish in performing
this contract only end items manufactured or produced by small
business concerns, historically black colleges or universities, or
minority institutions in the United States.
[FR Doc. 96-18432 Filed 7-19-96; 8:45 am]
BILLING CODE 5000-04-M
Complete official Federal Register PDF
FR Doc. 96-18430 Migratory Bird Hunting; Proposed Frameworks for Early-Season Migratory Bird Hunting Regulations
[Federal Register Volume 61, Number 141 (Monday, July 22, 1996)]
[Proposed Rules]
[Pages 37994-38011]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18430]
[[Page 37993]]
_______________________________________________________________________
Part IV
Department of the Interior
_______________________________________________________________________
Fish and Wildlife Service
_______________________________________________________________________
50 CFR Part 20
Migratory Bird Hunting; Proposed Frameworks for Early-Season Migratory
Bird Hunting Regulations; Proposed Rule
Federal Register / Vol. 61, No. 141 / Monday, July 22, 1996 /
Proposed Rules
[[Page 37994]]
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 20
RIN 1018-AD69
Migratory Bird Hunting; Proposed Frameworks for Early-Season
Migratory Bird Hunting Regulations
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; Supplemental.
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SUMMARY: The Fish and Wildlife Service (hereinafter the Service) is
proposing to establish the 1996-97 early-season hunting regulations for
certain migratory game birds. The Service annually prescribes
frameworks, or outer limits, for dates and times when hunting may occur
and the maximum number of birds that may be taken and possessed in
early seasons. Early seasons generally open prior to October 1, and
include seasons in Alaska, Hawaii, Puerto Rico, and the Virgin Islands.
These frameworks are necessary to allow State selections of final
seasons and limits and to allow recreational harvest at levels
compatible with population status and habitat conditions. This
supplement to the proposed rule also provides the Service's final
regulatory alternatives for the 1996-97 duck hunting season.
DATES: The comment period for proposed early-season frameworks will end
on August 1, 1996; and for late-season proposals on September 3, 1996.
The Service will hold a public hearing on late-season regulations
August 2, 1996, starting at 9 a.m.
ADDRESSES: The Service will hold a public hearing August 2 in the
Department of the Interior's Auditorium, 1849 C Street, NW.,
Washington, DC. Parties should submit written comments on these
proposals and/or a notice of intention to participate in the late-
season hearing to the Chief, Office of Migratory Bird Management
(MBMO), U.S. Fish and Wildlife Service, room 634--Arlington Square,
Washington, DC 20240. The public may inspect comments during normal
business hours in room 634, Arlington Square Building, 4401 N. Fairfax
Drive, Arlington, Virginia.
FOR FURTHER INFORMATION CONTACT: Paul R. Schmidt, Chief, MBMO, U.S.
Fish and Wildlife Service, (703) 358-1714.
SUPPLEMENTARY INFORMATION:
Regulations Schedule for 1996
On March 22, 1996, the Service published in the Federal Register
(61 FR 11992) a proposal to amend 50 CFR part 20. The proposal dealt
with the establishment of seasons, limits, and other regulations for
migratory game birds under Secs. 20.101 through 20.107, 20.109, and
20.110 of subpart K. On June 13, 1996, the Service published in the
Federal Register (61 FR 30114) a second document providing supplemental
proposals for early- and late-season migratory bird hunting regulations
frameworks. The June 13 supplement also provided detailed information
on the 1996-97 regulatory schedule and announced the Service Migratory
Bird Regulations Committee and Flyway Council meetings. On June 14,
1996, the Service published in the Federal Register (61 FR 30490) a
third document describing the Service's proposed 1996-97 regulatory
alternatives for duck hunting and its intent to consider establishing a
special youth waterfowl hunting day.
This document is the fourth in a series of proposed, supplemental,
and final rulemaking documents for migratory bird hunting regulations
and deals specifically with proposed frameworks for early-season
regulations. It will lead to final frameworks from which States may
select season dates, shooting hours, and daily bag and possession
limits for the 1996-97 season. The Service has considered all pertinent
comments received through July 8, 1996, in developing this document. In
addition, new proposals for certain early-season regulations are
provided for public comment. Comment periods are specified above under
DATES. The Service will publish final regulatory frameworks for early
seasons in the Federal Register on or about August 16, 1996.
This supplemental proposed rulemaking consolidates further changes
in the original framework proposals published in the March 22 Federal
Register. The regulations for early waterfowl hunting seasons proposed
in this document are based on the most current information available
about the status of waterfowl populations and habitat conditions on the
breeding grounds.
Presentations at Public Hearing
Five Service employees presented reports on the status of various
migratory bird species for which early hunting seasons are proposed.
These reports are briefly reviewed below.
Dr. Jim Dubovsky, Waterfowl Specialist, presented information on
1996 habitat conditions for waterfowl, preliminary estimates of duck
abundance, and harvests during the 1995 September teal seasons. Most of
the midcontinent region experienced unusually cool temperatures during
May and early June. Spring conditions were delayed approximately 2-3
weeks throughout most of the region. In the northcentral United States,
southern Saskatchewan, and southern Manitoba, habitat conditions for
nesting ducks were good to excellent. Abundant water existed in natural
and artificial basins, and land managed in conservation easements in
the United States continued to provide good nesting cover. Southern
Alberta had improved wetland conditions relative to recent years, but
nesting cover was limited because grazing reduced the amount of
residual vegetation, and cool temperatures slowed growth of grasses.
The pond estimate for the northcentral United States and prairie Canada
combined was 7.5 million. This estimate was the second highest
recorded, and was 61 percent above the long-term average. Farther north
in the prairie provinces and in the Northwest Territories, habitat
conditions were much improved from last spring, when habitats were
extremely dry and forest fires were common. This year, most areas had
abundant water. Conditions in Alaska and in survey areas throughout
eastern portions of the United States and Canada also were favorable
for nesting waterfowl. Estimates of duck abundance for most species
during spring 1996 generally were similar to those of last year. Blue-
winged teal and northern shoveler increased in abundance. American
wigeon numbers decreased. The 1995 May breeding population survey
yielded an estimate of 6.4 million blue-winged teal, which was greater
than the 1995 estimate of 5.1 million and 53 percent above the long-
term average. The estimated harvest of blue-winged teal during the 1995
September teal season was approximately 370,000 birds, which was about
100,000 birds more than the 1994 teal-season harvest. However, the 1995
estimate was within the range of harvests experienced historically.
Band-recovery rates of blue-winged teal suggested that 1995-96 harvest
rates were similar to or lower than those during the 1970's and early
1980's.
Dr. David Caithamer, Wildlife Biologist, reviewed the status of
several populations of Canada geese for which the Service is proposing
September seasons. In Alaska five subspecies of Canada geese are hunted
including Dusky Canada geese and Cackling Canada geese. Numbers of
Dusky Canada geese, which nest primarily in the Copper River Delta of
Alaska, have declined steadily since an earthquake in 1964 altered
their nesting habitat and
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resulted in lowered recruitment rates. The January 1995 population
index revealed approximately 8,500 geese. Unfortunately, no survey was
conducted in January 1996 due to the furlough of federal employees and
inclement weather. However, preliminary results from a spring survey of
Dusky geese on the Copper River Delta suggest that the size of the
breeding population is similar to the record-low size observed last
spring. The Service remains concerned about the continued poor status
of this population. The December 1995 survey of Cackling Canada geese
revealed approximately 161,000 geese, which was about 6 percent higher
than 1994 index. This population has grown approximately 14 percent per
year since 1986. The 3 other subspecies of Canada geese hunted in
Alaska are thought to be at or above objective levels. In the Pacific
Flyway, the Rocky Mountain Population of Canada geese increased 18
percent from 1995 to 109,000 geese. The population of Mississippi
Flyway giant Canada geese has increased at a rate of about 5 percent
per year during the last 10 years. In some areas, numbers of giant
geese have increased to record-high and nuisance levels. The situation
is similar in the northeastern U.S., where the ``resident'' goose
population has approximately doubled since 1989 to nearly 800,000
birds. The Service is concerned about the rapid growth rate and large
sizes of resident Canada goose populations in parts of the Atlantic and
Mississippi Flyways. In some regions, the management of these large
populations of resident geese is confounded by the presence of other
populations, which are below population objectives. A case in point is
the migratory population of Atlantic Canada geese which nests in
northern Quebec and winters in the Atlantic Flyway. The number of
breeding pairs of Atlantic Canada geese has declined from 118,000 in
1988 to only 29,000 in 1995. The Service recognizes the challenge
facing management agencies which are striving to increase migrant
populations, while simultaneously attempting to decrease resident
populations.
Mr. David Sharp, Central Flyway Representative, reported on the
status and harvests of sandhill cranes. The Mid-Continent Population
appears to have stabilized following dramatic increases in the early
1980s. The Central Platte River Valley 1996 preliminary spring index,
uncorrected for visibility, was 315,200. This index is 15 percent
higher than 1995's index of 273,376. However, the photo-corrected 3-
year average for the 1993-95 period was 394,093, which was 6 percent
below the previous year's 3-year running average and within the
established population-objective range of 343,000-465,000 cranes. All
Central Flyway States, except Nebraska, elected to allow crane hunting
in portions of their respective States in 1995-96; about 20,200 Federal
permits were issued and approximately 7,400 permittees hunted one or
more times. The number of permittees and active hunters were similar to
the previous year's seasons. About 20,777 cranes were harvested in
1995-96, a 20 percent increase from the previous year's estimate.
Harvest from Alaska, Canada and Mexico are estimated to be less than
10,000 for 1995-96 sport-hunting seasons. The total North American
sport harvest was estimated to be about 34,773, which is an all time
record high level. Annual surveys of the Rocky Mountain Population,
which migrates through the San Luis Valley of Colorado in March,
suggest a relatively stable population since 1984. The 1996 index of
20,500 cranes was within the established objective range of 18,000-
22,000. Limited special seasons were held during 1995 in portions of
Arizona, Montana, New Mexico, Utah, and Wyoming, and resulted in an
estimated harvest of 378 cranes.
Dr. John Bruggink, Eastern Shore and Upland Game Bird Specialist,
reported on the 1996 status of the American woodcock. The 1995
recruitment index for the Eastern Region (1.2 immatures per adult
female) was 29 percent below the long-term regional average; the
recruitment index for the Central Region (1.4 immatures per adult
female) was 18 percent below the long-term regional average. Singing-
ground Survey data indicated that the number of displaying woodcock
decreased (P<0.01) between 1995 and 1996 in the Eastern and Central
regions (-20.2 and -11.5 percent, respectively). Trends from the
Singing-ground Survey during 1986-96 also were negative (-3.2 and -3.7
percent per year for the Eastern and Central regions, respectively)
(P<0.01). There were long-term (1968-96) declines (P<0.01) of 2.5
percent per year in the Eastern Region and 1.6 percent per year in the
Central Region.
Mr. David Dolton, Western Shore and Upland Game Bird Specialist,
presented the mourning dove population status. The report summarized
call-count information gathered over the past 31 years. Trends were
calculated for the most recent 2 and 10-year intervals and for the
entire 31-year period. Between 1995 and 1996, the average number of
doves heard per route declined significantly in all three management
units. In the Eastern Management Unit (EMU), a significant decline in
doves heard was found over the most recent 10 years, but no trend was
indicated over 31 years. The Central Management Unit (CMU) showed
significant declines for both the 10 and 31-year time frames. In the
Western Management Unit (WMU), no trend was evident over the most
recent 10 years, but there has been a significant decline over 31
years. Trends for doves seen at the unit level over the 10 and 31-year
periods agreed with trends for doves heard in the WMU. No trend was
found in doves seen over 10 years in the EMU and for 31 years in the
CMU. Trends for doves seen in other time periods were comparable to
those in doves heard.
Mr. Dolton also presented the status of western white-winged doves
in Arizona. Since the 1980's, whitewing populations have remained
relatively stable. The 1996 whitewing call-count index of 31.1 doves
heard per route was essentially the same as the index of 31.2 doves
heard per route in 1995. Since 1987, hunters have harvested around
100,000 birds annually. In 1995, an estimated 107,000 birds were
harvested, a 22 percent decrease from 1994.
Mr. Dolton then reported on the status of eastern white-winged
doves and white-tipped doves in Texas. Results of the 1996 whitewing
call-count survey indicate 391,000 birds were nesting in the Lower Rio
Grande Valley counties of Starr, Hidalgo, Cameron, and Willacy. This is
an 11 percent decrease from 1995, but 6 percent below the previous 6-
year average count (1990-95). This decline may be due to a drought in
the Lower Rio Grande Valley since December 1994 which may be affecting
available native and domestic feed and nesting habitat. In Upper South
Texas, an estimated 620,000 whitewings were nesting throughout a 19-
county area. This was essentially the same count as last year. West
Texas also supports a small population of whitewings. The 1996 estimate
of 18,750 birds was 19 percent above the 1995 estimate. For white-
tipped doves, an average of 0.47 birds were heard per stop in both
brush and citrus locations in 1996.
Last, Mr. Dolton presented population and harvest information on
band-tailed pigeons. Band-tailed pigeons are managed as two separate
populations: the Coastal Population (Washington, Oregon, California,
and Nevada) and the Four-corners or Interior Population (Utah,
Colorado, Arizona, and New Mexico). For the Coastal population, the
Breeding Bird Survey (BBS) indicates a significant decline between 1968
and 1995. Mineral site counts conducted in Oregon in 1995 showed a 23
percent decrease in pigeon use over 1994.
[[Page 37996]]
Washington's call-count showed essentially no change in the population
between 1994 and 1995. Between 1975 and 1995 there was no significant
trend found in the population, but a significant increase was noted
during the most recent 5-year period between 1991 and 1995. Two
indirect population estimates suggest that the population was between
2.4 and 3.1 million birds in 1992. With continuing restrictions on bag
limits and season length, the 1995 harvest was an estimated 2,074
pigeons in Oregon and 10,428 in California. Washington has had a closed
season since 1991. In the Four-corners area, BBS data showed a stable
population between 1968 and 1995. The 1995 combined harvest for all
four States was 1,518 birds; well below the harvest in earlier years
which ranged up to 6,000 birds.
Comments Received at Public Hearing
Mr. Dale Bartlett, representing the Humane Society of the United
States (HSUS), expressed concern that the Service continues to
establish liberal hunting regulations on species without adequate data.
HSUS believes that sea duck seasons should be closed or severely
restricted until adequate data on population status and species biology
are available. HSUS claims that the Service acted too quickly to
liberalize duck hunting regulations since the populations of many
species remain below goals set by the North American Waterfowl
Management Plan (NAWMP). HSUS is frustrated with the failure of the
Service to close seasons on species in decline such as woodcock,
coastal populations of band-tailed pigeon, white-winged doves in
Arizona, and mourning doves in the Western Management Unit. HSUS
believes that bag limits and season lengths on several species of
webless migratory birds are ridiculously high and fly in the face of
the principles of wise and ethical use of the resource. They strongly
recommend that opening dates in Alaska be delayed at least 2 weeks to
allow birds to leave their natal marshes. They also recommend that the
Service require all seasons to open at noon during mid-week to reduce
large kills. They further urged the Service to disallow one-half hour
before sunrise shooting. Finally, they expressed concern about the
general direction of the Service towards resident Canada goose
management.
Mr. Don Kraege, representing the Pacific Flyway Council, expressed
appreciation for the Service's efforts to enhance cooperative waterfowl
management. He stated that the Flyway generally supports the idea of
limiting zone/split configurations for duck hunting. However, he
requested the Service reconsider the Council's recommendation on splits
and zones for duck seasons. Specifically, he recommended removal of the
requirement that duck seasons in different zones differ by at least one
day. He suggested that this change would lead to regulatory
simplification, increased hunter satisfaction, enhance waterfowl
habitat efforts on private lands, and would not significantly alter
harvest.
Mr. Joe Kramer, representing the Central Flyway Council, reviewed
recommendations passed by the Council regarding establishment of this
year's migratory bird hunting regulations. He supported the proposed
expansion of the Rocky Mountain Greater Sandhill Crane hunt area in
Wyoming. Reviewing status information on blue- and green-winged teal
populations, he indicated that this year's combined spring-breeding
population of about 8.9 million was a record high level and that the
projected fall flight will probably be the largest ever recorded. He
indicated that the Central and Mississippi Flyway Councils would
complete a more comprehensive harvest approach for these special
seasons by March 1997. He supported the Central Flyway Council's
recommendation to expand this year's teal bag limit from 4 to 5 and
increase the teal season length from 9 to 16 days. He also reaffirmed
the Council's strong support for the Adaptive Harvest Management
process, but recommended an increase in season length from 60 to 67
days under the ``liberal'' alternative. He supported the recommended
change in the redhead daily bag limit from 1 to 2 in the ``liberal''
alternative for the Central and Mississippi Flyways.
With respect to the zone/split criteria for the establishment of
duck hunting seasons, Mr. Kramer reiterated the Central Flyway's
objection to constraints on the use of additional days in the High
Plains Mallard Management Unit. Mr. Kramer supported efforts by the
Service to review baiting regulations, but he pointed out continuing
desires by many Central Flyway States to review the timing of the
early- and late-season meetings. Finally, Mr. Kramer supported the
additional flexibility allowed to address resident goose problems
through special hunting seasons, and the concept of establishing a
youth waterfowl hunt.
Mr. Charles D. Kelley, representing the Southeastern Association of
Fish and Wildlife Agencies, commended the Service for its efforts in
developing the Harvest Information Program, which will provide improved
harvest estimates for a number of species. He also stated that he
appreciated the Service's recognition of the problems caused by
rapidly-expanding populations of giant Canada geese and the need to
work toward solving them.
Ms. Anne Muller, representing the Committee to Abolish Sport
Hunting, and its affiliate, the Coalition to Prevent the Destruction of
Canada Geese, commented that State and Federal wildlife agencies are
exploiting wild Canada geese to supply hunters with targets by
increasing resident goose populations on wildlife management areas in
every State. She claimed that this is done in order to collect excise
taxes on lethal weapons and ammunition. Further, she objected to the
roundup and shipment of geese by game agencies personnel to slaughter
houses to feed the poor, and believed this action violates the rights
of the general citizenry. Ms. Muller asked that the Service change the
current depredation permitting process. Finally, she requested that
public hearings be held during evening hours to increase pubic
attendance and that the Service directly involve communities to help
resolve nuisance Canada geese conflicts.
Mr. Peter Muller, representing the Committee to Abolish Sport
Hunting, expressed concern that the special Canada goose seasons
currently held in New York and New Jersey were responsible for the
decline of migrant geese nesting in northern Quebec. He questioned
whether the criteria allowing 10 and 20 percent harvest of migrant
geese during the special early and late seasons, respectively, were too
liberal. Further, he argued that statistics regarding this goose
population were highly dubious since very little banding had occurred
on the breeding ground to accurately determine the racial composition
of the harvest. He indicated that little is known regarding the
interactions between resident and migrant geese and recommended
suspension of these seasons until more information regarding population
affiliation was available. To assess the beneficial effects of these
liberal hunting seasons on resident Canada geese, he asked that the
Service develop an Environmental Impact Statement (EIS). He requested
that the Service maintain and enforce strict waterfowl baiting
regulations. Finally, he was disturbed by the trend of State and
Federal management agencies of shifting to more liberal policies.
Dr. Ann Stirling Frisch expressed opposition to a proposed new hunt
area for special early Canada goose seasons in Wisconsin. Dr. Frisch
suggested such seasons are ineffective at controlling
[[Page 37997]]
local Canada goose populations, that habitat management was a
preferable alternative to hunting seasons, that other lethal means of
control were undesirable. She further stated that National
Environmental Policy Act (NEPA) requirements were not met in
establishing such seasons.
Written Comments Received
The preliminary proposed rulemaking, which appeared in the March 22
Federal Register, opened the public comment period for migratory game
bird hunting regulations. As of July 8, 1996, the Service had received
82 comments; 18 of these specifically addressed early-season issues and
9 addressed the proposed regulatory alternatives for duck hunting.
Early-season comments are summarized below and numbered in the order
used in the March 22 Federal Register. Only the numbered items
pertaining to early seasons for which written comments were received
are included. The Service received recommendations from all four Flyway
Councils. Some recommendations supported continuation of last year's
frameworks. Due to the comprehensive nature of the annual review of the
frameworks performed by the Councils, support for continuation of last
year's frameworks is assumed for items for which no recommendations
were received. Council recommendations for changes in the frameworks
are summarized below.
1. Ducks
The categories used to discuss issues related to duck harvest
management are as follows: (A) General Harvest Strategy, (B) Framework
Dates, (C) Season Length, (D) Closed Seasons, (E) Bag Limits, (F) Zones
and Split Seasons, and (G) Special Seasons/Species Management. Only
those categories containing substantial recommendations are included
below.
A. Harvest Strategy Considerations
In the March 22, 1996, Federal Register, the Service described the
underlying principles of Adaptive Harvest Management (AHM) and the
progress made on its implementation in 1995. In addition, the Service
reported recommendations made by an AHM technical working group for the
1996-97 regulatory process. Comprised of representatives from the
Service and the four Flyway Councils, the working group was established
in 1992 to develop technical recommendations for improving duck harvest
regulations.
One of the recommendations of the AHM working group for the 1996-97
regulatory process was to continue the regulatory alternatives used in
1995, with a minor exception in the Pacific Flyway. In 1995, the
Service limited the choice of regulatory alternatives for the 1995-96
regular duck hunting season to three sets of frameworks similar to
those in effect during the 1979-93 hunting seasons. These three sets of
frameworks were described in a relative sense as restrictive, moderate,
and liberal. In general, specific guidelines for selection of one of
the regulatory alternatives are based on the size of the mallard
breeding population and habitat conditions.
Council Recommendations: In the June 13, 1996, Federal Register,
the Service reported that all four Flyways continued to express support
for the AHM approach. The Mississippi, Central, and Pacific Flyway
Councils recommended some specific modifications to the regulatory
alternatives recommended by the working group and these recommendations
were identified in the June 13, 1996, document and are reiterated here
and under ``Framework Dates,'' ``Season Length,'' ``Bag Limits,'' and
``Special Seasons/Species Management.''
The Atlantic Flyway Council endorsed the AHM technical working
group's recommendations regarding harvest-management objectives, use of
mid-continent mallard population models, and regulatory options for the
Atlantic Flyway in 1996.
The Upper-Region Regulations Committee of the Mississippi Flyway
Council expressed support for no more than three regulations packages,
but recommended a harvest-management objective (objective function)
that achieves an equal balance between harvest and a breeding
population objective of 8.1 million mallards.
The Lower-Region Regulations Committee of the Mississippi Flyway
Council requested the working group investigate the addition of both a
more conservative and a more liberal regulatory package to the group of
regulations packages offered for the 1997-98 hunting season.
The Central Flyway Council supported the working group's
recommendation to modify the objective function so that it continue to
reflect the broad resource values of the population goals of the NAWMP,
but commented that many technical issues need to be resolved before
AHM's fully operational for multiple duck stocks.
The Pacific Flyway Council endorsed the AHM working group's 1996
duck regulations approach and, with the exception of a harvest strategy
for pintails, recommendations for 1996.
Public-Hearing Comments: Mr. Joe Kramer, Chairman of the Central
Flyway Council, expressed continued support for AHM. However, he
questioned the Service's proposal to largely maintain the interim
regulatory alternatives from last year.
Mr. Don Kraege, Chairman of the Pacific Flyway Council Study
Committee, expressed support for the cooperative development of AHM as
a means to improve the scientific management of mallards and other
species.
Written Comments: The Texas Parks and Wildlife Department supports
the concept of AHM, but feels that minor changes to regulatory
alternatives should not be precluded because full implementation of AHM
may take several years.
The Missouri Department of Conservation applauded the Service for
continued progress on AHM and supports: (1) the use of NAWMP population
goals; (2) regulatory alternatives that are similar to those of 1995;
(3) continued use of current hypotheses concerning harvest and
reproduction; and (4) AHM development for other populations or species.
Missouri also noted the important role of communication in ensuring
long-term support for AHM and urged that data-collection efforts be
maintained in the face of changing budgets and priorities. In a second
letter, the Missouri expressed continued support for AHM, including the
proposed regulatory alternatives. Missouri also urged continued
progress on a broader range of regulatory alternatives and inclusion of
other duck species in the AHM strategy.
The Minnesota Department of Natural Resources supports the three
regulatory alternatives as outlined in the June 14 Supplement.
Minnesota also supports finalization of the regulatory alternatives
prior to the July Flyway meetings and wishes to pursue cooperative
development of regulatory alternatives that will be appropriate over
the long-term for the Mississippi Flyway.
The Illinois Department of Natural Resources encouraged the Service
to examine the pros and cons of four or five regulatory alternatives,
rather than three. Illinois believes that the addition of a more
restrictive and/or a more liberal alternative could provide greater
flexibility in responding to changing population status, but may be
undesirable if they lead to greater annual fluctuations in hunting
regulations.
[[Page 37998]]
The Kansas Department of Wildlife and Parks has supported the
principles of AHM, but is concerned that the process now is being used
to circumvent the traditional process of allowing input of the States
through the Flyway Councils. Kansas objects to the AHM technical
working group establishing regulations by ``popular vote'' among
individuals from all four Flyways, employees of the Service's MBMO, and
their academic associates. Kansas is also concerned that the regulatory
alternatives used in 1995 and proposed for 1996 are becoming entrenched
and that future changes will be increasingly difficult.
Service Response: The Service appreciates the continued support of
the Flyway Councils and States for implementation of AHM. Agreement on
a limited number of regulatory alternatives, on the role of NAWMP
population goals in guiding harvest management, and on alternative
hypotheses of mallard population dynamics has greatly reduced the
annual debate over appropriate duck-hunting regulations. More
importantly, these elements constitute key components of a systematic
process to increase knowledge of regulatory effects and, thus, improve
long-term management performance. The Service also recognizes, however,
that continued progress in AHM will demand deliberate and methodical
attention to a number of previously ignored or unresolved issues in
waterfowl management. These include: (1) hunter dynamics and how
regulations affect hunter activity and success; (2) factors affecting
duck reproduction on a continental scale; (3) relative costs and
benefits of species, population, and sex-specific management; and (4)
allocation of harvest opportunities among countries, Flyways, and
States. Continued progress also will depend heavily on further
education and communication, particularly as it concerns field
biologists, wildlife-area managers, and other resource-agency staff.
The Service is urging its partners to cooperatively address these
technical and communication issues in a comprehensive and coherent
manner. The Service recognizes that schedules for clarifying issues,
receiving Flyway Councils and others input, and conducting necessary
assessments must be developed so that expectations for progress are
realistic. The Service believes that AHM implementation must itself be
adaptive and that there will be a continuing need for periodic review
of all technical specifications, including management objectives,
regulatory alternatives, and theories (or models) of population
dynamics.
The limited set of regulatory alternatives (i.e., ``restrictive'',
``moderate'', and ``liberal'') continues to draw criticism from some
Flyway Councils and States. At issue is both the number of regulatory
alternatives and the specific combination of season length and bag
limits for each alternative. The Service recognizes that the proposed
alternatives do not satisfy all partners and will continue to treat
these alternatives as interim, pending further investigation by the AHM
technical working group and others. However, the Service believes that
adjustments to the set of regulatory alternatives should be based on
the following criteria: (1) alternatives should differ sufficiently so
that differences in harvest levels and their impacts on duck
populations can be detected with current monitoring programs; (2) the
set of alternatives should produce enough variation in harvest rates to
permit identification of optimal harvest strategies; and (3) regulatory
alternatives should reflect the needs of law enforcement and the
desires and abilities of hunters. The set of alternatives can be
reduced or expanded as needed, but it is important to use the
alternatives long enough to identify patterns in harvest rates under
each alternative. Because relevant issues have not yet been addressed
adequately, the Service is denying requests this year to modify the
basic structure of regulatory alternatives. Prior to the 1997-98
hunting season, the Service will work with the Flyway Councils and the
AHM technical working group to investigate the merits of major
modifications to the set of regulatory alternatives.
The role of the AHM working group is to provide technical guidance
to decision-makers. This working group is comprised of two
representatives appointed by each Flyway Council, in addition to
biological staff from the Service and the National Biological Service.
The Flyway Councils' appointees effectively represent the perspectives
of their respective Flyways, but they must be concerned also with
continental issues that cross Flyway boundaries. The Service believes
that this arrangement works exceedingly well and that individual States
have ample opportunity to comment on recommendations offered by the AHM
working group, either through their Flyway Councils or directly to the
Service. The Service emphasizes that the working group does not
establish regulations. Moreover, the working group develops its
recommendations through consensus, and does not use a voting process.
For the 1996-97 regular duck hunting season, the Service will use
the three regulatory alternatives detailed in the accompanying table
(at the end of this document). Alternatives are specified for each
Flyway and are designated as ``RES'' for the restrictive, ``MOD'' for
the moderate, and ``LIB'' for the liberal alternative. The Service will
propose a specific regulatory alternative when survey data on waterfowl
population and habitat status are available in late July.
B. Framework Dates
Council Recommendations: The Lower-Region Regulations Committee of
the Mississippi Flyway Council recommended the AHM technical working
group investigate the impacts of a January 31 framework closing date.
Service Response: The Service supports investigations by the AHM
technical working group to assess the suitability of all aspects of the
current regulatory alternatives, including framework dates. However,
the Service reiterates its long-standing concerns that hunting
disturbance in late winter may interfere with pair bonding and inhibit
nutrient acquisition and storage with subsequent impacts to
reproductive potential. Before the Service can consider changes to the
timing of the framework closing date, additional information to
alleviate these concerns is necessary.
The Service notes that the framework dates in the proposed
regulatory alternatives for the Atlantic Flyway published in the June
14 Supplement did not accurately reflect the policy established by the
Service last year (September 27, 1995, Federal Register 60 FR 50042).
This discrepancy was unintentional. The Service reaffirms its policy of
fixed dates of October 1 to January 20 for the Atlantic Flyway, and of
floating framework dates (Saturday closest to October 1, Sunday closest
to January 20) for the Mississippi, Central, and Pacific Flyways. The
appropriate change in framework dates for the Atlantic Flyway is
reflected in the final regulatory alternatives.
C. Season Length
Council Recommendations: In the regulatory alternatives recommended
for 1996-97, the Upper- and Lower-Region Regulations Committees of the
Mississippi Flyway Council recommended the season length in the
``liberal'' package be 51 days instead of 50 days. The Central Flyway
Council
[[Page 37999]]
recommended the season length in the ``liberal'' package be 67 days.
Public-Hearing Comments: Mr. Joe Kramer, Chairman of the Central
Flyway Council, urged the Service to adopt the Council's proposal to
increase the season length from 60 to 67 days in the ``liberal''
alternative.
Written Comments: The Texas Parks and Wildlife Department also
urged a change from 60 to 67 days in the ``liberal'' alternative for
the Central Flyway.
The Kansas Department of Wildlife and Parks also recommended that
the ``liberal'' alternative for the Central Flyway provide 67 days of
duck hunting. Kansas believes that they are ``locked into'' an
unnecessarily restrictive regulation without any recourse for
addressing the problem.
The Wyoming Game and Fish Department supports extending the season
from 60 to 67 days under the ``liberal'' alternative for the Central
Flyway. Wyoming feels that the current regulatory options will be used
for an indefinite number of years and that postponing an appropriate
correction to season length is unacceptable.
The Minnesota Department of Natural Resources supports the
Mississippi Flyway Council proposal to increase the season length in
the ``liberal'' alternative by one day.
The Illinois Department of Natural Resources also supports the
Mississippi Flyway Council proposal to increase the ``liberal''
alternative season length by one day. Illinois believed this minor
change would provide additional weekend hunting opportunity without
adverse impact.
Service Response: The Service believes that any modifications to
season length under the three regulatory alternatives must be
approached carefully, with due consideration to differences among
Flyways. Current differences in season length among the Flyways are
predicated on historic (ca. 1950) patterns of duck abundance and hunter
activity, with longer seasons available to Flyways with relatively more
ducks and fewer hunters. The Service believes that a thorough review of
Flyway differences in season lengths is needed and is seeking technical
guidance from the Flyway Councils, the AHM working group, and others.
Current differences in hunter activity and duck abundance, as well as
the origin and status of duck stocks contributing to each Flyway,
should be investigated using modern data and analytical techniques.
Until such analyses are available, the Service is concerned that
changes in season lengths contained in the regulatory alternatives
could alter the allocation of harvest in unpredictable, undesirable or
inappropriate ways. Therefore, the Service prefers to approach all
proposed changes to season length, regardless of the number of days
involved, in a systematic and comprehensive manner.
E. Bag Limits
Council Recommendations: The Upper- and Lower-Region Regulations
Committees of the Mississippi Flyway Council and the Central Flyway
Council recommended the redhead daily bag limit in the ``liberal''
package be 2 birds instead of 1.
The Lower-Region Regulations Committee of the Mississippi Flyway
Council also recommended the overall daily bag limit in the ``liberal''
package be 6 birds instead of 5, and within this overall limit, the
daily bag limit for mottled ducks be 4 instead of 3; and the limit for
ringnecks, scaup, goldeneyes, and buffleheads be 4 instead of 5. Limits
for black ducks, pintails, wood ducks, and canvasbacks would be the
same as in 1995.
Public-Hearing Comments: Mr. Joe Kramer, Chairman of the Central
Flyway Council, expressed support for the Service's proposal to
increase the redhead limit from 1 to 2 under the ``liberal''
alternative.
The Minnesota Department of Natural Resources also supports the
Service's proposal to allow a second redhead in the daily bag under the
Central and Mississippi Flyways ``liberal'' alternative.
Written Comments: The Massachusetts Division of Fisheries and
Wildlife recommended any ``liberal'' regulatory package delete the hen
mallard restriction in the Atlantic Flyway.
The Michigan Department of Natural Resources supports the Service's
proposal to allow a second redhead in the daily bag under the
``liberal'' alternative for the Central and Mississippi Flyways.
Michigan also requested the rationale for allowing an additional duck
in the daily bag limit of the ``liberal'' alternative for the Pacific
Flyway.
Service Response: The Service concurs with the recommendations to
increase the bag limit of redheads from 1 to 2 in the ``liberal''
alternative of the Central and Mississippi Flyways. However, the
Service cannot support the proposal of the Lower-Region Regulations
Committee of the Mississippi Flyway Council to increase the overall bag
limit in the ``liberal'' alternative from 5 to 6 in order to provide
additional hunting opportunity on several abundant species. The Service
believes that major changes to the regulatory alternatives should be
addressed in a deliberate and comprehensive manner. Historic efforts at
species-specific management have been predicated largely on the
assumptions that: (a) mallard harvest rates can be used as a standard
by which to judge the appropriateness of harvest rates for other
species; (b) target stocks of ducks can be isolated in time or space,
or that hunters can shoot selectively; and (c) that management costs
are largely fixed whether managing one stock or many. Recent
information has led the Service to question the validity of these
assumptions. The Service believes that a number of issues must be
addressed prior to major reforms in species-specific harvest
strategies: (1) how much must species or populations differ in terms of
their population dynamics to warrant differential harvest regulations?
(2) what are the relative costs and benefits of managing individual
duck stocks? (3) what is the ability of hunters to harvest selectively?
and (4) do hunters prefer the maximum hunting opportunity afforded by
complex regulations or simpler hunting regulations that offer less
hunting opportunity? The Service awaits further guidance from the
Councils and the AHM technical working group before considering
significant changes to species-specific bag limits.
The Service acknowledges that liberal hunting regulations in the
Atlantic Flyway historically had no sex-specific conventional bag
limits for mallards (although there were hen restrictions for States
using the point system). However, the Service believes that it is
premature to remove hen restrictions that have been in effect in the
Atlantic Flyway since 1985. The role of sex-specific bag limits in
regulating mallard harvest, total mortality, and recruitment is
uncertain. Further investigation of the potential consequences of
eliminating hen restrictions on mallards is necessary before
considering fundamental changes in sex-specific bag limits of mallards.
The Service also urges the Atlantic Flyway Council to begin development
of a harvest-management objective for mallards breeding in eastern
North America so that the implications of changes in hen bag limits can
be assessed.
The Service is allowing a 7-duck daily bag limit in the Pacific
Flyway ``liberal'' alternative, representing a 1-duck increase compared
to the 1995 ``liberal'' alternative. The Service agreed to this change
because the Pacific Flyway had a 7-duck bag limit during the 1979-84
period, which provided the basis for
[[Page 38000]]
season lengths and bag limits under the current ``liberal''
alternative. Mallard harvest rates realized with a 7-duck daily bag
limit in the Pacific Flyway are accounted for within the AHM framework
and are consistent with current resource status.
Regarding the final regulatory alternatives, the Service notes that
the daily bag limit for redheads in the Pacific Flyway's overall daily
bag limit was inadvertently omitted from the proposed regulatory
alternatives in the June 14, 1996, Federal Register. Consistent with
the Pacific Flyway frameworks established last year (September 27,
1995, Federal Register), a daily bag limit of 2 redheads is reflected
in the final regulatory alternatives.
F. Zones and Split Seasons
In 1990, the Service established guidelines for the use of zones
and split seasons for duck hunting (Federal Register 55 FR 38901).
These guidelines were based upon a cooperative review and evaluation of
the historical use of zone/split options. The Service reiterated 1977
criteria that the primary purpose of these options would be to provide
more equitable distribution of harvest opportunity for hunters
throughout a State. In 1977, the Service had also stated that these
regulations should not substantially change the pattern of harvest
distribution among States within a Flyway, nor should these options
detrimentally change the harvest distribution pattern among species or
populations at either the State or Flyway level. The 1990 review did
not show that the proliferation of these options had increased harvest
pressure; however, the ability to detect the impact of zone/split
configurations was poor because of poorly chosen response variables,
the lack of statistical tests to differentiate between real and
perceived changes, and the absence of adequate experimental controls.
Therefore, the 1990 strategy intended to provide a framework for
controlling the proliferation of changes in zone/split options and
limited changes to 5-year intervals. The first open season for changes
was in 1991 and the second occurs this year when zone/split
configurations will be established for the 1996-2000 period.
Council Recommendations: The Flyway Councils made several
recommendations on the Service's proposed guidelines on the use of
zones and split seasons for duck hunting. The Service published these
guidelines in the March 22, 1996, Federal Register.
The Central Flyway Council recommended non-contiguous zones be
allowed when supported by adequate justification. The Council also made
several recommendations regarding the use of additional days in the
High Plains Management Unit. The Council recommended the restrictions
``must be consecutive'' and ``after the regular duck season'' be
removed from the proposed guidelines. Further, the Council recommended
additional days in the management unit be restricted to one split
(i.e., 2 segments).
The Pacific Flyway Council recommended the guidelines for zones
allow identical season dates and/or different zoning configurations
with different regulatory packages.
Regarding Flyway Council recommendation for specific changes
requested by States, the Atlantic Flyway Council recommended the State
of Maine be granted a waiver for its proposed zoning option for 1996-
2000. The Upper-Region Regulations Committee of the Mississippi Flyway
Council recommended the Service approve changes to zone-boundary
configurations proposed by Illinois, Indiana, Michigan, and Wisconsin
for the 1996-2000 period. The Central Flyway Council recommended the
Service approve Nebraska's duck hunting zone proposal. The Pacific
Flyway Council recommended the Service approve duck zone changes in
Arizona, Nevada, Oregon, and Utah for the 1996-2000 period.
Written Comments: The Nebraska Game and Parks Commission and the
Kansas Department of Wildlife and Parks recommended the restrictions
``must be consecutive'' and ``after the regular duck season'' be
removed from the proposed guidelines on the use of additional days in
the High Plains Management Unit. Both noted these requirements were new
and seemed unnecessary.
Nebraska also recommended the addition of a provision allowing the
use of non-contiguous zones when supported by strong justification. The
Wyoming Game and Fish Department also requested a variance from the
contiguous-boundary criterion, stating that the current zoning
guidelines do not seem to contain the flexibility needed to address the
considerable variation in hunting opportunity associated with the
diverse physiographic regions found in many Rocky Mountain States.
Service Response: For the 1996 open season, the Service proposed in
the March 22, 1996, Federal Register use of the existing 1990
guidelines, with an exception for the handling of special management
units. The Service proposed to delete the following from the 1990
guidelines:
Special Management Unit Limitation: Within existing Flyway
boundaries, States may not zone and/or use a 3-way split season
simultaneously within a special management unit and the remainder of
the State.
The Service proposed this change with the understanding that the
additional days allowed for a management unit must be consecutive and,
for the Central Flyway, be held both after the Saturday nearest
December 10 and after the regular duck season. In the June 13, 1996,
Federal Register, the Service proposed an additional special provision
for management units: For the States that have a recognized management
unit and include a non-management unit portion, an independent 2-way
split season with no zones can be selected for the management unit. The
remainder of the State in the non-management unit portion can be zoned/
split according to established guidelines.
Regarding the Central Flyway Council recommendation that the
criteria ``must be consecutive'' and ``after the regular duck season''
be removed from the guidelines on the use of additional High Plains
Management Unit days, the Service stated in the June 13 Federal
Register that the restrictions regarding the use of additional days
should remain as proposed.
Regarding Flyway Council recommendations to alter the definition
and interpretation of a ``zone'' that would allow the establishment of
hunting areas with non-contiguous boundaries or concurrent seasons, the
Service stated in the June 13 Federal Register that it believes the
definition/interpretations previously used are still appropriate.
However, after further review, the Service now believes that the
requirement for different season dates among zones can be removed
without detriment to the objectives of the guidelines for use of zones/
split seasons for duck hunting. This change will allow States
additional flexibility in addressing differences in physiography,
climate, etc. within a State.
The following zone/split-season guidelines apply only for the
regular duck season:
1. A zone is a geographic area or portion of a State, with a
contiguous boundary, for which independent dates may be selected for
the regular duck season.
2. Consideration of changes for management-unit boundaries are not
subject to the guidelines and provisions governing the use of zones and
split seasons for ducks.
[[Page 38001]]
3. Only minor (less than a county in size) boundary changes will be
allowed for any grandfather arrangement, and changes are limited to the
open season.
4. Once a zone/split option is selected during an open season, it
must remain in place for the following 5 years.
For the 1996-2000 period, any State may continue the configuration
used in 1991-1995. If changes are made, the zone/split-season
configuration must conform to one of the following options:
1. Three zones with no splits,
2. Split seasons (no more than 3 segments) with no zones, or
3. Two zones with the option for 2-way split seasons in one or both
zones.
At the end of 5 years after any changes in splits or zones, States
will be required to provide the Service with a review of pertinent data
(e.g., estimates of harvest, hunter numbers, hunter success, etc.).
This review does not have to be the result of a rigorous experimental
design, but nonetheless should assist the Service in ascertaining
whether major undesirable changes in harvest or hunter activity
occurred as a result of split and zone regulations. The next open
season for changes in zone/split configurations will be 2001.
Using the above revised guidelines, the Service reviewed specific
proposals for zoning changes submitted to date, including those
recommended by the Flyway Councils and those proposed by the various
States. Proposals by the States of Arizona, Illinois, Kentucky, Maine
(boundary change), Michigan, Mississippi, Montana, Nebraska (Low Plains
Zone boundary changes), Nevada, Oregon, South Dakota, Utah, Wisconsin,
and Wyoming were within the established guidelines and are approved for
the 1996-2000 period. Proposals by the States of Indiana, Kansas, Maine
(creation of third zone), and Nebraska (creation of new zone) did not
comply with the revised guidelines and the Service requests these
States revise their proposals accordingly.
G. Special Seasons/Species Management
i. Canvasbacks
Council Recommendations: The Lower-Region Regulations Committee of
the Mississippi Flyway Council recommended canvasback regulations
fluctuate within the regulations packages commensurate with model
predictions, breeding-population indices, and habitat conditions.
Public-Hearing Comments: Mr. Joe Kramer, Chairman of the Central
Flyway Council, expressed support for the Service's canvasback harvest
strategy.
Written Comments: The Texas Parks and Wildlife Department asked the
Service to consider an additional canvasback in the daily bag if the
resulting harvest would not exceed that provided under current modeling
procedures.
Service Response: The Service implemented an interim harvest-
management strategy for canvasbacks in 1994. The Service allows one
canvasback in the daily bag in all four Flyways as long as the harvest
is not expected to exceed the ``harvestable surplus.'' This surplus is
the number of canvasbacks that could be taken by hunters while
maintaining a subsequent breeding population of at least 500,000.
Calculation of the harvestable surplus is based on breeding population
size, predicted production during the current year, and expected rates
of natural mortality and crippling loss. The Service believes that it
has insufficient experience with this harvest strategy and that
proposed modifications are premature. The Service also notes the high
harvest potential for this species and is concerned that an overly
aggressive harvest strategy could precipitate a return to closed
seasons. The Service will continue to monitor canvasback harvests and
population status and may be willing to consider modifications in the
future.
ii. Pintails
Council Recommendations: The Central Flyway Council recommended a
harvest strategy for pintails based on the breeding population size.
The pintail daily bag limit would be 1 with a pintail breeding
population below 3.0 million; 2 with a breeding population between 3.0
and 4.5 million; 3 with a breeding population between 4.5 and 5.6
million; and equal to the overall daily bag limit with a breeding
population above 5.6 million.
The Pacific Flyway Council recommended guidelines for the 1996-97
Pacific Flyway pintail harvest regulations based on a prescriptive
basis. A matrix of breeding population size from a subset of survey
strata association with the Pacific Flyway breeding population and the
numbers of prairie ponds counted during the May survey would determine
bag limits.
Written Comments: The Texas Parks and Wildlife Department urged the
Service to adopt the Central Flyway's proposal for a pintail harvest
strategy.
Service Response: The Service is supportive of any attempt at a
more objective approach to pintail harvest regulations. However, the
Service believes that a more deliberate and careful assessment is
needed before considering changes in harvest strategies, particularly
in light of pintail population status and the harvest liberalization
that occurred in 1994 and again during the 1995-96 season. Such an
assessment would include, among other things, explicit harvest-
management objectives, comprehensive model development for continental
pintails, and a consideration of the regulatory constraints imposed by
the adaptive harvest strategy for mid-continent mallards. The Service
currently is working with the Pacific Flyway Council Study Committee,
the Cooperative Fish and Wildlife Research Units, and other interested
parties to ensure that such an assessment is forthcoming. To that end,
the Service and the National Biological Service have agreed to provide
funding that in total exceeds $65,000. The Service is hopeful that
additional funding can be made available from the States and other
organizations to complete development of population models and an
acceptable adaptive harvest strategy for pintails.
iii. September Teal Seasons
Council Recommendations: The Upper-Region Regulations Committee of
the Mississippi Flyway Council recommended a 5-day experimental
September teal season be offered to the production States of Iowa,
Michigan, Minnesota, and Wisconsin for a 3-year period. The Committee
recommended a daily bag limit of 4 teal with sunrise to sunset shooting
hours.
The Central Flyway Council recommended a harvest strategy of
linking regulatory packages developed for the September teal season
with those developed for the regular duck season under the AHM process.
For 1996, the Council recommended either a ``restrictive'' package of 5
days with a daily bag limit of 3 teal, a ``moderate'' package of 9 days
with a daily bag limit of 4 teal, or a ``liberal'' package of 16 days
with a daily bag limit of 5 teal.
Public-Hearing Comments: Mr. Joe Kramer representing the Central
Flyway Council indicated that the Central and Mississippi Flyway
Councils would complete a more comprehensive harvest approach for
special teal seasons by March 1997.
Service Response: The Service previously determined in the
Supplemental Environmental Impact Statement: Issuance of Annual
Regulations Permitting the Sport Hunting of Migratory Birds (SEIS 88)
that proposals for expansion of existing special regulations require a
comprehensive evaluation plan containing study objectives, experimental
design, decision criteria, and identification of data needs. The
Service believes that the proper approach for permitting experimental
expansions would be to design a
[[Page 38002]]
comprehensive study that would evaluate the cumulative impacts of all
teal-season hunting opportunities, in both production and non-
production States, on teal and other ducks. The proposals recommended
by the Flyways are disjunct, with one containing an evaluation plan
(Mississippi Flyway) and the other (Central Flyway) absent one. As
such, these proposals represent a fragmented approach to expanding and
evaluating teal-season hunting opportunities, which is inconsistent
with the desire of the Service. Future consideration by the Service of
any proposal to expand teal-season hunting opportunities will take into
account the evaluation plan, the manpower and funding requirements
necessary to implement the plan, and the priority of this issue
relative to other Service programs.
iv. September Duck Seasons
Council Recommendations: The Upper-Region Regulations Committee of
the Mississippi Flyway Council recommended Iowa be allowed to hold up
to 5 days of its regular duck hunting season in September, starting no
earlier than the Saturday nearest September 14. The remainder of the
Iowa regular duck season could begin no earlier than October 10.
Service Response: The Service previously determined in SEIS 88 that
the extension of framework dates into September for Iowa's September
duck season was a type of special season. The original evaluation of
this season suggested little impact on duck species other than teal.
However, the Service notes that the original evaluation did not include
information from the periods requested in the proposal, so inferences
about effects of the proposed changes on duck populations are not
clear. More importantly, the Service believes that mixed-species
special seasons (as defined in the context of SEIS 88) are not a
preferred management approach, and does not wish to entertain
refinements to this season or foster expansions of this type of season
into other States.
4. Canada Geese
A. Special Seasons
Council Recommendations: The Atlantic Flyway Council recommended
the frameworks for September Canada goose seasons in the Atlantic
Flyway be modified as follows:
September 1-15: Montezuma region of New York, Lake Champlain region
of New York and Vermont, Maryland (Caroline, Cecil, Dorchester, and
Talbot Counties), South Carolina, and Delaware.
September 1-20: North Carolina (Currituck, Camden, Pasquotank,
Perquimans, Chowan, Bertie, Washington, Tyrrell, Dare, and Hyde
Counties).
September 1-30: New Jersey and remaining portion of North Carolina.
September 1-25: Remaining portion of Flyway, except Georgia and
Florida.
The Lower-Region Regulations Committee of the Mississippi Flyway
Council recommended the Service continue to closely monitor the impacts
of early Canada goose seasons, including both special seasons and
September openings of regular seasons, to insure that cumulative
impacts do not adversely affect migrant Canada geese and to insure that
special seasons adhere to the criteria established by the Service.
The Upper-Region Regulations Committee of the Mississippi Flyway
Council, the Central Flyway Council, and the Pacific Flyway Council
made several September Canada goose seasons recommendations. All of the
recommendations were within the established criteria for special Canada
goose seasons published in the August 29, 1995, Federal Register (60 FR
45020).
Written Comments: The Massachusetts Division of Fisheries and
Wildlife supported extending the frameworks for September Canada goose
seasons in the Atlantic Flyway to September 25.
Service Response: The Service agrees with the Atlantic Flyway's
request to modify the frameworks for special early Canada goose seasons
in the Atlantic Flyway and is proposing to grant the Atlantic Flyway a
temporary exemption to the special early Canada goose season criteria.
Specifically, the Service is proposing to allow States in the Atlantic
Flyway to extend the framework closing date from September 15 to
September 25, except in certain areas where migrant geese are known to
arrive early. The Service is proposing this temporary exemption because
of the suspension of the regular season on Atlantic Population Canada
geese and the Flyway's need for greater flexibility in dealing with
increasing numbers of resident Canada geese. The exemption is proposed
to remain in effect until the regular season on migrant Canada geese is
reinstated.
Generally, the Service agrees with the Council's recommended
framework modifications. For seasons extending beyond September 25,
however, the Service proposes to classify these as experimental.
Additionally, in view of the reinstatement of existing criteria when
regular seasons on Canada geese are reinstated in the Flyway, the
Service encourages all States selecting framework dates after September
15 to continue with data-gathering and monitoring efforts in order to
further evaluate whether any proportional changes in the harvest of
migrant geese do occur.
B. Regular Seasons
Council Recommendations: The Upper-Region Regulations Committee of
the Mississippi Flyway Council recommended a September 21 framework
opening date for the regular goose season in the Upper Peninsula of
Michigan and statewide in Wisconsin.
The Pacific Flyway Council reiterated its 1995 recommendation that
Alaska, Oregon, and Washington take actions to reduce the harvest of
dusky Canada geese.
Service Response: Regarding the Pacific Flyway Council's
recommendation, the Service recognizes the need for this and proposes
to establish uniform criteria to measure the harvest of dusky Canada
geese in Washington's and Oregon's Quota Zones. The Service solicits
input from the Council and other parties in the development of these
criteria for the 1996-97 season.
9. Sandhill Cranes
Council Recommendations: The Central Flyway Council recommended
Wyoming's sandhill crane hunt area expand to include Park and Big Horn
Counties.
The Pacific Flyway Council recommended season modifications in
Montana and Wyoming. In Montana, the Council recommended a new hunt
zone in the Ovando-Helmville area. In Wyoming, the Council recommended
expanding the season from 3 to 8 days, increasing the number of
permits, and establishing a new hunt zone in Park and Big Horn
Counties.
14. Woodcock
The Service is increasingly concerned about the gradual long-term
declines in woodcock populations in the Eastern and Central management
regions. Although habitat changes appear to be the primary cause of the
declines, the Service believes that hunting regulations should be
commensurate with the woodcock population status and rates of declines.
The Service seeks active participation by the Atlantic and Mississippi
Flyway Councils in the development of short and long-term woodcock
harvest management strategies, which identify the circumstances under
which additional
[[Page 38003]]
harvest restrictions should be implemented and what those restrictions
should be.
18. Alaska
Council Recommendations: The Pacific Flyway Council recommended the
establishment of separate basic limits for geese. For dark geese, the
Council recommended a basic daily bag limit of 4, with 8 in possession.
For light geese, the Council recommended a daily bag limit of 3, with 6
in possession. The proposed limits would be subject to area
restrictions for Canada geese and limits for brant and emperor geese
would remain separate.
Public Comment Invited
The Service intends that adopted final rules be as responsive as
possible to all concerned interests, and wants to obtain the comments
and suggestions from all interested areas of the public, as well as
other governmental agencies. Such comments, and any additional
information received, may lead to final regulations that differ from
these proposals. However, special circumstances involved in the
establishment of these regulations limit the amount of time the Service
can allow for public comment. Specifically, two considerations compress
the time in which the rulemaking process must operate: (1) the need to
establish final rules at a point early enough in the summer to allow
affected State agencies to appropriately adjust their licensing and
regulatory mechanisms; and (2) the unavailability, before mid-June, of
specific, reliable data on this year's status of some waterfowl and
migratory shore and upland game bird populations. Therefore, the
Service believes allowing comment periods past the dates specified is
contrary to public interest.
Comment Procedure
It is the policy of the Department of the Interior to afford the
public an opportunity to participate in the rulemaking process,
whenever practical. Accordingly, interested persons may participate by
submitting written comments to the Chief, MBMO, at the address listed
under the caption ADDRESSES. The public may inspect comments during
normal business hours at the Service's office address listed under the
caption ADDRESSES. The Service will consider all relevant comments
received and will try to acknowledge received comments, but may not
provide an individual response to each commenter.
NEPA Consideration
NEPA considerations are covered by the programmatic document,
``Final Supplemental Environmental Impact Statement: Issuance of Annual
Regulations Permitting the Sport Hunting of Migratory Birds (FSES 88-
14),'' filed with EPA on June 9, 1988. The Service published a Notice
of Availability in the June 16, 1988, Federal Register (53 FR 22582).
The Service published its Record of Decision on August 18, 1988 (53 FR
31341). Copies of these documents are available from the Service at the
address indicated under the caption ADDRESSES.
Endangered Species Act Consideration
As in the past, the Service will design hunting regulations to
remove or alleviate chances of conflict between migratory game bird
hunting seasons and the protection and conservation of endangered and
threatened species. Consultations are presently under way to ensure
that actions resulting from these regulatory proposals will not likely
jeopardize the continued existence of endangered or threatened species
or result in the destruction or adverse modification of their critical
habitat. Findings from these consultations will be included in a
biological opinion and may cause modification of some regulatory
measures proposed in this document. The final frameworks will reflect
any modifications. The Service's biological opinions resulting from its
Section 7 consultation are public documents available for public
inspection in the Service's Division of Endangered Species and MBMO, at
the address indicated under the caption ADDRESSES.
Regulatory Flexibility Act; Executive Order (E.O.) 12866 and the
Paperwork Reduction Act
In the March 22, 1996, Federal Register, the Service reported
measures it took to comply with requirements of the Regulatory
Flexibility Act and E.O. 12866. One measure was to prepare a Small
Entity Flexibility Analysis (Analysis) in 1995 documenting the
significant beneficial economic effect on a substantial number of small
entities. The Analysis estimated that migratory bird hunters would
spend between $258 and $586 million at small businesses. Copies of the
Analysis are available upon request from the Office of Migratory Bird
Management. This rule was not subject to review by the Office of
Management and Budget under E.O. 12866.
The Service examined these proposed regulations under the Paperwork
Reduction Act of 1995 and found no information collection requirements.
List of Subjects in 50 CFR Part 20
Exports, Hunting, Imports, Reporting and recordkeeping
requirements, Transportation, Wildlife.
The rules that eventually will be promulgated for the 1996-97
hunting season are authorized under 16 U.S.C. 703-711, 16 U.S.C. 712,
and 16 U.S.C. 742 a-j.
Dated: July 10, 1996
George T. Frampton, Jr.,
Assistant Secretary for Fish and Wildlife and Parks.
Proposed Regulations Frameworks for 1996-97 Early Hunting Seasons
on Certain Migratory Game Birds
Pursuant to the Migratory Bird Treaty Act and delegated
authorities, the Department of the Interior approved the following
proposed frameworks which prescribe season lengths, bag limits,
shooting hours, and outside dates within which States may select for
certain migratory game birds between September 1, 1996, and March 10,
1997.
General
Dates: All outside dates noted below are inclusive.
Shooting and Hawking (taking by falconry) Hours: Unless otherwise
specified, from one-half hour before sunrise to sunset daily.
Possession Limits: Unless otherwise specified, possession limits
are twice the daily bag limit.
Area, Zone, and Unit Descriptions: Geographic descriptions are
contained in a later portion of this document.
Special September Teal Season
Outside Dates: Between September 1 and September 30, an open season
on all species of teal may be selected by Alabama, Arkansas, Colorado
(Central Flyway portion only), Illinois, Indiana, Kansas, Kentucky,
Louisiana, Mississippi, Missouri, New Mexico (Central Flyway portion
only), Ohio, Oklahoma, Tennessee, and Texas in areas delineated by
State regulations.
Hunting Seasons and Daily Bag Limits: Not to exceed 9 consecutive
days, with a daily bag limit of 4 teal.
Shooting Hours: One-half hour before sunrise to sunset, except in
Arkansas, Illinois, Indiana, Missouri, and Ohio, where the hours are
from sunrise to sunset.
[[Page 38004]]
Special September Duck Seasons
Florida: An experimental 5-consecutive-day season may be selected
in September. The daily bag limit may not exceed 4 teal and wood ducks
in the aggregate.
Kentucky and Tennessee: In lieu of a special September teal season,
an experimental 5-consecutive-day season may be selected in September.
The daily bag limit may not exceed 4 teal and wood ducks in the
aggregate, of which no more than 2 may be wood ducks.
Iowa: Iowa may hold up to 5 days of its regular duck hunting season
in September. All ducks which are legal during the regular duck season
may be taken during the September segment of the season. The September
season segment may commence no earlier than the Saturday nearest
September 20 (September 21, 1996), with daily bag and possession limits
being the same as those in effect last year. The remainder of the
regular duck season may not begin before October 15.
Scoter, Eider, and Oldsquaw Ducks (Atl
FR Doc. 96-18430 Migratory Bird Hunting; Proposed Frameworks for Early-Season Migratory Bird Hunting Regulations
antic Flyway)
Outside Dates: Between September 15 and January 20.
Hunting Seasons and Daily Bag Limits: Not to exceed 107 days, with
a daily bag limit of 7, singly or in the aggregate of the listed sea-
duck species, of which no more than 4 may be scoters.
Daily Bag Limits During the Regular Duck Season: Within the special
sea duck areas, during the regular duck season in the Atlantic Flyway,
States may choose to allow the above sea duck limits in addition to the
limits applying to other ducks during the regular duck season. In all
other areas, sea ducks may be taken only during the regular open season
for ducks and must be included in the regular duck season daily bag and
possession limits.
Areas: In all coastal waters and all waters of rivers and streams
seaward from the first upstream bridge in Maine, New Hampshire,
Massachusetts, Rhode Island, Connecticut, and New York; in any waters
of the Atlantic Ocean and in any tidal waters of any bay which are
separated by at least 1 mile of open water from any shore, island, and
emergent vegetation in New Jersey, South Carolina, and Georgia; and in
any waters of the Atlantic Ocean and in any tidal waters of any bay
which are separated by at least 800 yards of open water from any shore,
island, and emergent vegetation in Delaware, Maryland, North Carolina
and Virginia; and provided that any such areas have been described,
delineated, and designated as special sea-duck hunting areas under the
hunting regulations adopted by the respective States.
Special Early Canada Goose Seasons
Atlantic Flyway
General Seasons
Canada goose seasons of up to 15 days during September 1-15 may be
selected for the Montezuma Region of New York; the Lake Champlain
Region of New York and Vermont; the Counties of Caroline, Cecil,
Dorchester, and Talbot in Maryland; Delaware; and Crawford County in
Pennsylvania. Seasons not to exceed 20 days during September 1-20 may
be selected for the Northeast Hunt Unit of North Carolina. Seasons may
not exceed 25 days during September 1-25 in the remainder of the
Flyway, except Georgia and Florida, where the season is closed. Areas
open to the hunting of Canada geese must be described, delineated, and
designated as such in each State's hunting regulations.
Daily Bag Limits: Not to exceed 5 Canada geese.
Experimental Seasons
Experimental Canada goose seasons of up to 30 days during September
1-30 may be selected by New Jersey, North Carolina (except in the
Northeast Hunt Unit), and South Carolina. Areas open to the hunting of
Canada geese must be described, delineated, and designated as such in
each State's hunting regulations.
Daily Bag Limits: Not to exceed 5 Canada geese.
Mississippi Flyway
General Seasons
Canada goose seasons of up to 15 days during September 1-15 may be
selected by Illinois, Indiana, Iowa, Michigan (except in the Upper
Peninsula, where the season may not extend beyond September 10, and in
Huron, Saginaw and Tuscola Counties, where no special season may be
held), Minnesota, Missouri, Ohio, Tennessee, and Wisconsin. The daily
bag limit may not exceed 5 Canada geese. Areas open to the hunting of
Canada geese must be described, delineated, and designated as such in
each State's hunting regulations.
Central Flyway
General Seasons
Canada goose seasons of up to 15 days during September 1-15 may be
selected by South Dakota. The daily bag limit may not exceed 5 Canada
geese. Areas open to the hunting of Canada geese must be described,
delineated, and designated as such in each State's hunting regulations.
Pacific Flyway
General Seasons
Wyoming may select an 8-day season on Canada geese between
September 1-15. This season is subject to the following conditions:
1. Where applicable, the season must be concurrent with the
September portion of the sandhill crane season.
2. All participants must have a valid State permit for the
special season.
3. A daily bag limit of 2, with season and possession limits of
6 will apply to the special season.
Oregon may select a special Canada goose season of up to 15 days
during the period September 1-15. Daily bag limits not to exceed 3
Canada geese with 6 in possession.
Washington may select a special Canada goose season of up to 15
days during the period September 1-15. Daily bag limits not to exceed 3
Canada geese with 6 in possession.
Idaho may select a 15-day season in the special East Canada Goose
Zone as described in State regulations during the period September 1-
15. All participants must have a valid State permit and the total
number of permits issued is not to exceed 110 for this zone. The daily
bag limit is 2 and the possession limit is 4.
Idaho may select a 7-day Canada Goose Season during the period
September 1-15 in Nez Perce County with a bag limit of 4 and a
possession limit of 8. All participants must have a valid State permit
and the total number of permits is not to exceed 200 for the season in
Nez Perce County.
Areas open to hunting of Canada geese in each State must be
described, delineated, and designated as such in each State's hunting
regulations.
Regular Goose Seasons
Regular goose seasons in Wisconsin and the Upper Peninsula of
Michigan may open as early as September 21. Season lengths and bag and
possession limits will be the same as those in effect last year but are
subject to change during the late-season regulations process.
Sandhill Cranes
Regular Seasons in the Central Flyway:
Outside Dates: Between September 1 and February 28.
Hunting Seasons: Seasons not to exceed 58 consecutive days may be
selected in designated portions of the following States: Colorado,
Kansas, Montana, North Dakota, South Dakota, and Wyoming. Seasons not
to exceed 93 consecutive days may be selected in designated portions of
the following
[[Page 38005]]
States: New Mexico, Oklahoma, and Texas.
Daily Bag Limits: 3 sandhill cranes.
Permits: Each person participating in the regular sandhill crane
seasons must have a valid Federal sandhill crane hunting permit in
their possession while hunting.
Special Seasons in the Central and Pacific Flyways:
Arizona, Colorado, Idaho, Montana, New Mexico, Utah, and Wyoming
may select seasons for hunting sandhill cranes within the range of the
Rocky Mountain Population subject to the following conditions:
Outside Dates: Between September 1 and January 31.
Hunting Seasons: The season in any State or zone may not exceed 30
days.
Bag limits: Not to exceed 3 daily and 9 per season.
Permits: Participants must have a valid permit, issued by the
appropriate State, in their possession while hunting.
Other provisions: Numbers of permits, open areas, season dates,
protection plans for other species, and other provisions of seasons
must be consistent with the management plan and approved by the Central
and Pacific Flyway Councils. Seasons in Montana and the Park-Big Horn
Unit in Wyoming are experimental.
Common Moorhens and Purple Gallinules
Outside Dates: Between September 1 and January 20 in the Atlantic
Flyway, and between September 1 and the Sunday nearest January 20
(January 19) in the Mississippi and Central Flyways. States in the
Pacific Flyway have been allowed to select their hunting seasons
between the outside dates for the season on ducks; therefore, they are
late-season frameworks and no frameworks are provided in this document.
Hunting Seasons and Daily Bag Limits: Seasons may not exceed 70
days in the Atlantic, Mississippi, and Central Flyways. Seasons may be
split into 2 segments. The daily bag limit is 15 common moorhens and
purple gallinules, singly or in the aggregate of the two species.
Rails
Outside Dates: States included herein may select seasons between
September 1 and January 20 on clapper, king, sora, and Virginia rails.
Hunting Seasons: The season may not exceed 70 days, and may be
split into 2 segments.
Daily Bag Limits:
Clapper and King Rails - In Rhode Island, Connecticut, New Jersey,
Delaware, and Maryland, 10, singly or in the aggregate of the two
species. In Texas, Louisiana, Mississippi, Alabama, Georgia, Florida,
South Carolina, North Carolina, and Virginia, 15, singly or in the
aggregate of the two species.
Sora and Virginia Rails - In the Atlantic, Mississippi, and Central
Flyways and the Pacific-Flyway portions of Colorado, Montana, New
Mexico, and Wyoming, 25 daily and 25 in possession, singly or in the
aggregate of the two species. The season is closed in the remainder of
the Pacific Flyway.
Common Snipe
Outside Dates: Between September 1 and February 28, except in
Maine, Vermont, New Hampshire, Massachusetts, Rhode Island,
Connecticut, New York, New Jersey, Delaware, Maryland, and Virginia,
where the season must end no later than January 31.
Hunting Seasons and Daily Bag Limits: Seasons may not exceed 107
days and may be split into two segments. The daily bag limit is 8
snipe.
American Woodcock
Outside Dates: States in the Atlantic Flyway may select hunting
seasons between October 1 and January 31. States in the Central and
Mississippi Flyways may select hunting seasons between September 1 and
January 31.
Hunting Seasons and Daily Bag Limits: In the Atlantic Flyway,
seasons may not exceed 45 days, with a daily bag limit of 3; in the
Central and Mississippi Flyways, seasons may not exceed 65 days, with a
daily bag limit of 5. Seasons may be split into two segments.
Zoning: New Jersey may select seasons in each of two zones. The
season in each zone may not exceed 35 days.
Band-tailed Pigeons
Pacific Coast States (California, Oregon, Washington, and Nevada)
Outside Dates: Between September 15 and January 1.
Hunting Seasons and Daily Bag Limits: Not more than 9 consecutive
days, with bag and possession limits of 2 and 2 band-tailed pigeons,
respectively.
Permit Requirement: The appropriate State agency must issue
permits, and report on harvest and hunter participation to the Service
by June 1 of the following year, or participate in the Migratory Bird
Harvest Information Program.
Zoning: California may select hunting seasons not to exceed 9
consecutive days in each of two zones. The season in the North Zone
must close by October 7.
Four-Corners States (Arizona, Colorado, New Mexico, and Utah)
Outside Dates: Between September 1 and November 30.
Hunting Seasons and Daily Bag Limits: Not more than 30 consecutive
days, with a daily bag limit of 5 band-tailed pigeons.
Permit Requirement: The appropriate State agency must issue
permits, and report on harvest and hunter participation to the Service
by June 1 of the following year, or participate in the Migratory Bird
Harvest Information Program.
Zoning: New Mexico may select hunting seasons not to exceed 20
consecutive days in each of two zones. The season in the South Zone may
not open until October 1.
Mourning Doves
Outside Dates: Between September 1 and January 15, except as
otherwise provided, States may select hunting seasons and daily bag
limits as follows:
Eastern Management Unit (All States east of the Mississippi River, and
Louisiana)
Hunting Seasons and Daily Bag Limits: Not more than 70 days with a
daily bag limit of 12, or not more than 60 days with a daily bag limit
of 15.
Zoning and Split Seasons: States may select hunting seasons in each
of two zones. The season within each zone may be split into not more
than three periods. The hunting seasons in the South Zones of Alabama,
Florida, Georgia, Louisiana, and Mississippi may commence no earlier
than September 20. Regulations for bag and possession limits, season
length, and shooting hours must be uniform within specific hunting
zones.
Central Management Unit (Arkansas, Colorado, Iowa, Kansas, Minnesota,
Missouri, Montana, Nebraska, New Mexico, North Dakota, Oklahoma, South
Dakota, Texas, and Wyoming)
Hunting Seasons and Daily Bag Limits: Not more than 70 days with a
daily bag limit of 12, or not more than 60 days with a daily bag limit
of 15.
Zoning and Split Seasons: States may select hunting seasons in each
of two zones. The season within each zone may be split into not more
than three periods. Texas may select hunting seasons for each of three
zones subject to the following conditions:
A. The hunting season may be split into not more than two periods,
except
[[Page 38006]]
in that portion of Texas in which the special white-winged dove season
is allowed, where a limited mourning dove season may be held
concurrently with that special season (see white-winged dove
frameworks).
B. A season may be selected for the North and Central Zones between
September 1 and January 25; and for the South Zone between September 20
and January 25.
C. Each zone may have a daily bag limit of 12 doves (15 under the
alternative) in the aggregate, no more than 6 of which may be white-
winged doves and no more than 2 of which may be white-tipped doves,
except that during the special white-winged dove season, the daily bag
limit may not exceed 10 white-winged, mourning, and white-tipped doves
in the aggregate, of which no more than 5 may be mourning doves and 2
may be white-tipped doves.
D. Except as noted above, regulations for bag and possession
limits, season length, and shooting hours must be uniform within each
hunting zone.
Western Management Unit (Arizona, California, Idaho, Nevada, Oregon,
Utah, and Washington)
Hunting Seasons and Daily Bag Limits: Idaho, Nevada, Oregon, Utah,
and Washington - Not more than 30 consecutive days with a daily bag
limit of 10 mourning doves (in Nevada, the daily bag limit may not
exceed 10 mourning and white-winged doves in the aggregate).
Arizona and California - Not more than 60 days which may be split
between two periods, September 1-15 and November 1-January 15. In
Arizona, during the first segment of the season, the daily bag limit is
10 mourning and white-winged doves in the aggregate, of which no more
than 6 may be white-winged doves. During the remainder of the season,
the daily bag limit is restricted to 10 mourning doves. In California,
the daily bag limit may not exceed 10 mourning and white-winged doves
in the aggregate.
White-winged and White-tipped Doves
Hunting Seasons and Daily Bag Limits:
Except as shown below, seasons in Arizona, California, Florida,
Nevada, New Mexico, and Texas must be concurrent with mourning dove
seasons.
Arizona may select a hunting season of not more than 30 consecutive
days, running concurrently with the first segment of the mourning dove
season. The daily bag limit may not exceed 10 mourning and white-winged
doves in the aggregate, of which no more than 6 may be white-winged
doves.
In Florida, the daily bag limit may not exceed 12 mourning and
white-winged doves (15 under the alternative) in the aggregate, of
which no more than 4 may be white-winged doves.
In the Nevada Counties of Clark and Nye, and in the California
Counties of Imperial, Riverside, and San Bernardino, the daily bag
limit may not exceed 10 mourning and white-winged doves in the
aggregate.
In New Mexico, the daily bag limit may not exceed 12 mourning and
white-winged doves (15 under the alternative) in the aggregate.
In Texas, the daily bag limit may not exceed 12 mourning, white-
winged, and white-tipped doves (15 under the alternative) in the
aggregate, of which not more than 6 may be white-winged doves and not
more than 2 may be white-tipped doves.
In addition, Texas may also select a hunting season of not more
than 4 days for the special white-winged dove area of the South Zone
between September 1 and September 19. The daily bag limit may not
exceed 10 white-winged, mourning, and white-tipped doves in the
aggregate, of which no more than 5 may be mourning doves and 2 may be
white-tipped doves.
Alaska
Outside Dates: Between September 1 and January 26.
Hunting Seasons: Alaska may select 107 consecutive days for
waterfowl, sandhill cranes, and common snipe in each of five zones. The
season may be split without penalty in the Kodiak Zone. The seasons in
each zone must be concurrent.
Closures: The season is closed on Canada geese from Unimak Pass
westward in the Aleutian Island chain. The hunting season is closed on
Aleutian Canada geese, emperor geese, spectacled eiders, and Steller's
eiders.
Daily Bag and Possession limits:
Ducks - Except as noted, a basic daily bag limit of 7 and a
possession limit of 21 ducks. Daily bag and possession limits in the
North Zone are 10 and 30, and in the Gulf Coast Zone they are 8 and 24,
respectively. The basic limits may include no more than 1 canvasback
daily and 3 in possession.
In addition to the basic limit, there is a daily bag limit of 15
and a possession limit of 30 scoter, common and king eiders, oldsquaw,
harlequin, and common and red-breasted mergansers, singly or in the
aggregate of these species.
Light Geese - A basic daily bag limit of 3 and a possession limit
of 6.
Dark Geese - A basic daily bag limit of 4 and a possession limit of
8.
Dark-goose seasons are subject to the following restrictions:
1. In Units 9(e) and 18, the limits for Canada geese are 1 daily
and 2 in possession.
2. In Units 5 and 6, the taking of Canada geese is permitted
from September 28 through December 16. Middleton Island is closed to
the taking of Canada geese.
3. In Unit 10 (except Unimak Island), the taking of Canada geese
is prohibited.
Brant - A daily bag limit of 2.
Common snipe - A daily bag limit of 8.
Sandhill cranes - A daily bag limit of 3.
Tundra swans - Open seasons for tundra swans may be selected
subject to the following conditions:
1. No more than 300 permits may be issued in GMU 22, authorizing
each permittee to take 1 tundra swan per season.
2. No more than 500 permits may be issued during the operational
season in GMU 18. No more than 1 tundra swan may be taken per
permit.
3. The seasons must be concurrent with other migratory bird
seasons.
4. The appropriate State agency must issue permits, obtain
harvest and hunter-participation data, and report the results of
this hunt to the Service by June 1 of the following year.
Hawaii
Outside Dates: Between September 1 and January 15.
Hunting Seasons: Not more than 60 days (70 under the alternative)
for mourning doves.
Bag Limits: Not to exceed 15 (12 under the alternative) mourning
doves.
Note: Mourning doves may be taken in Hawaii in accordance with
shooting hours and other regulations set by the State of Hawaii, and
subject to the applicable provisions of 50 CFR part 20.
Puerto Rico
Doves and Pigeons:
Outside Dates: Between September 1 and January 15.
Hunting Seasons: Not more than 60 days.
Daily Bag and Possession Limits: Not to exceed 10 Zenaida,
mourning, and white-winged doves in the aggregate. Not to exceed 5
scaly-naped pigeons.
Closed Areas: There is no open season on doves or pigeons in the
following areas: Municipality of Culebra, Desecheo Island, Mona Island,
El Verde Closure Area, and Cidra Municipality and adjacent areas.
Ducks, Coots, Moorhens, Gallinules, and Snipe:
Outside Dates: Between October 1 and January 31.
[[Page 38007]]
Hunting Seasons: Not more than 55 days may be selected for hunting
ducks, common moorhens, and common snipe. The season may be split into
two segments.
Daily Bag Limits:
Ducks - Not to exceed 5.
Common moorhens - Not to exceed 6.
Common snipe - Not to exceed 8.
Closed Seasons: The season is closed on the ruddy duck, white-
cheeked pintail, West Indian whistling duck, fulvous whistling duck,
and masked duck, which are protected by the Commonwealth of Puerto
Rico. The season also is closed on the purple gallinule, American coot,
and Caribbean coot.
Closed Areas: There is no open season on ducks, common moorhens,
and common snipe in the Municipality of Culebra and on Desecheo Island.
Virgin Islands
Doves and Pigeons:
Outside Dates: Between September 1 and January 15.
Hunting Seasons: Not more than 60 days for Zenaida doves.
Daily Bag and Possession Limits: Not to exceed 10 Zenaida doves.
Closed Seasons: No open season is prescribed for ground or quail
doves, or pigeons in the Virgin Islands.
Closed Areas: There is no open season for migratory game birds on
Ruth Cay (just south of St. Croix).
Local Names for Certain Birds: Zenaida dove, also known as mountain
dove; bridled quail-dove, also known as Barbary dove or partridge;
Common ground-dove, also known as stone dove, tobacco dove, rola, or
tortolita; scaly-naped pigeon, also known as red-necked or scaled
pigeon.
Ducks
Outside Dates: Between December 1 and January 31.
Hunting Seasons: Not more than 55 consecutive days.
Daily Bag Limits: Not to exceed 5.
Closed Seasons: The season is closed on the ruddy duck, white-
cheeked pintail, West Indian whistling duck, fulvous whistling duck,
and masked duck.
Special Falconry Regulations
Falconry is a permitted means of taking migratory game birds in any
State meeting Federal falconry standards in 50 CFR 21.29(k). These
States may select an extended season for taking migratory game birds in
accordance with the following:
Extended Seasons: For all hunting methods combined, the combined
length of the extended season, regular season, and any special or
experimental seasons shall not exceed 107 days for any species or group
of species in a geographical area. Each extended season may be divided
into a maximum of 3 segments.
Framework Dates: Seasons must fall between September 1 and March
10.
Daily Bag and Possession Limits: Falconry daily bag and possession
limits for all permitted migratory game birds shall not exceed 3 and 6
birds, respectively, singly or in the aggregate, during extended
falconry seasons, any special or experimental seasons, and regular
hunting seasons in all States, including those that do not select an
extended falconry season.
Regular Seasons: General hunting regulations, including seasons and
hunting hours, apply to falconry in each State listed in 50 CFR
21.29(k). Regular-season bag and possession limits do not apply to
falconry. The falconry bag limit is not in addition to gun limits.
Area, Unit, and Zone Descriptions
Central Flyway portion of the following States consists of:
Colorado: That area lying east of the Continental Divide.
Montana: That area lying east of Hill, Chouteau, Cascade, Meagher,
and Park Counties.
New Mexico: That area lying east of the Continental Divide but
outside the Jicarilla Apache Indian Reservation.
Wyoming: That area lying east of the Continental Divide and
excluding the Great Divide Portion.
The remaining portions of these States are in the Pacific Flyway.
Mourning and White-winged Doves
Alabama
South Zone - Baldwin, Barbour, Coffee, Conecuh, Covington, Dale,
Escambia, Geneva, Henry, Houston, and Mobile Counties.
North Zone - Remainder of the State.
California
White-winged Dove Open Areas - Imperial, Riverside, and San
Bernardino Counties.
Florida
Northwest Zone - The Counties of Bay, Calhoun, Escambia, Franklin,
Gadsden, Gulf, Holmes, Jackson, Liberty, Okaloosa, Santa Rosa, Walton,
Washington, Leon (except that portion north of U.S. 27 and east of
State Road 155), Jefferson (south of U.S. 27, west of State Road 59 and
north of U.S. 98), and Wakulla (except that portion south of U.S. 98
and east of the St. Marks River).
South Zone - Remainder of State.
Georgia
Northern Zone - That portion of the State lying north of a line
running west to east along U.S. Highway 280 from Columbus to Wilcox
County, thence southward along the western border of Wilcox County;
thence east along the southern border of Wilcox County to the Ocmulgee
River, thence north along the Ocmulgee River to Highway 280, thence
east along Highway 280 to the Little Ocmulgee River; thence southward
along the Little Ocmulgee River to the Ocmulgee River; thence
southwesterly along the Ocmulgee River to the western border of the
Jeff Davis County; thence south along the western border of Jeff Davis
County; thence east along the southern border of Jeff Davis and Appling
Counties; thence north along the eastern border of Appling County, to
the Altamaha River; thence east to the eastern border of Tattnall
County; thence north along the eastern border of Tattnall County;
thence north along the western border of Evans to Candler County;
thence west along the southern border of Candler County to the Ohoopee
River; thence north along the western border of Candler County to
Bulloch County; thence north along the western border of Bulloch County
to U.S. Highway 301; thence northeast along U.S. Highway 301 to the
South Carolina line.
South Zone - Remainder of the State.
Louisiana
North Zone - That portion of the State north of Interstate Highway
10 from the Texas State line to Baton Rouge, Interstate Highway 12 from
Baton Rouge to Slidell and Interstate Highway 10 from Slidell to the
Mississippi State line.
South Zone - The remainder of the State.
Mississippi
South Zone - The Counties of Forrest, George, Greene, Hancock,
Harrison, Jackson, Lamar, Marion, Pearl River, Perry, Pike, Stone, and
Walthall.
North Zone - The remainder of the State.
Nevada
White-winged Dove Open Areas - Clark and Nye Counties.
Texas
North Zone - That portion of the State north of a line beginning at
the International Bridge south of Fort Hancock; north along FM 1088 to
TX 20; west along TX 20 to TX 148; north along TX 148 to I-10 at Fort
Hancock; east along I-10 to I-20; northeast along I-20 to I-30 at Fort
Worth; northeast along I-30 to the Texas-Arkansas State line.
South Zone - That portion of the State south and west of a line
beginning at the International Bridge south of Del Rio, proceeding east
on U.S. 90 to San
[[Page 38008]]
Antonio; then east on I-10 to Orange, Texas.
Special White-winged Dove Area in the South Zone - That portion of
the State south and west of a line beginning at the International
Bridge south of Del Rio, proceeding east on U.S. 90 to Uvalde; south on
U.S. 83 to TX 44; east along TX 44 to TX 16 at Freer; south along TX 16
to TX 285 at Hebbronville; east along TX 285 to FM 1017; southwest
along FM 1017 to TX 186 at Linn; east along TX 186 to the Mansfield
Channel at Port Mansfield; east along the Mansfield Channel to the Gulf
of Mexico.
Area with additional restrictions - Cameron, Hidalgo, Starr, and
Willacy Counties.
Central Zone - That portion of the State lying between the North
and South Zones.
Band-tailed Pigeons
California
North Zone - Alpine, Butte, Del Norte, Glenn, Humboldt, Lassen,
Mendocino, Modoc, Plumas, Shasta, Sierra, Siskiyou, Tehama, and Trinity
Counties.
South Zone - The remainder of the State.
New Mexico
North Zone - North of a line following U.S. 60 from the Arizona
State line east to I-25 at Socorro and then south along I-25 from
Socorro to the Texas State line.
South Zone - Remainder of the State.
Washington
Western Washington - The State of Washington excluding those
portions lying east of the Pacific Crest Trail and east of the Big
White Salmon River in Klickitat County.
Woodcock
New Jersey
North Zone - That portion of the State north of NJ 70.
South Zone - The remainder of the State.
Special September Goose Seasons
Atlantic Flyway
North Carolina
Northeast Hunt Unit - Counties of Bertie, Camden, Chovan,
Currituck, Dare, Hyde, Pasquotank, Perquimans, Tyrrell, and Washington.
Mississippi Flyway
Illinois
Northeast Zone - Cook, DuPage, Grundy, Kane, Kankakee, Kendall,
Lake, McHenry, and Will Counties.
Iowa
North Zone: That portion of the State north of a line extending
east from the Nebraska border along State Highway 175 to State 37,
southeast along State 37 to U.S. Highway 59, south along U.S. 59 to
Interstate Highway 80, then east along I-80 to the Illinois border.
South Zone: The remainder of Iowa.
Minnesota
Twin Cities Metropolitan Canada Goose Zone -
A. All of Hennepin and Ramsey Counties.
B. In Anoka County, all of Columbus Township lying south of County
State Aid Highway (CSAH) 18, Anoka County; all of the cities of Ramsey,
Andover, Anoka, Coon Rapids, Spring Lake Park, Fridley, Hilltop,
Columbia Heights, Blaine, Lexington, Circle Pines, Lino Lakes, and
Centerville; and all of the city of Ham Lake except that portion lying
north of CSAH 18 and east of U.S. Highway 65.
C. That part of Carver County lying north and east of the following
described line: Beginning at the northeast corner of San Francisco
Township; thence west along the north boundary of San Francisco
Township to the east boundary of Dahlgren Township; thence north along
the east boundary of Dahlgren Township to U.S. Highway 212; thence west
along U.S. Highway 212 to State Trunk Highway (STH) 284; thence north
on STH 284 to County State Aid Highway (CSAH) 10; thence north and west
on CSAH 10 to CSAH 30; thence north and west on CSAH 30 to STH 25;
thence east and north on STH 25 to CSAH 10; thence north on CSAH 10 to
the Carver County line.
D. In Scott County, all of the cities or Shakopee, Savage, Prior
Lake, and Jordan, and all of the Townships of Jackson, Louisville, St.
Lawrence, Sand Creek, Spring Lake, and Credit River.
E. In Dakota County, all of the cities of Burnsville, Eagan,
Mendota Heights, Mendota, Sunfish Lake, Inver Grove Heights, Apple
Valley, Lakeville, Rosemount, Farmington, Hastings, Lilydale, West St.
Paul, and South St. Paul, and all of the Township of Nininger.
F. That portion of Washington County lying south of the following
described line: Beginning at County State Aid Highway (CSAH) 2 on the
west boundary of the county; thence east on CSAH 2 to U.S. Highway 61;
thence south on U.S. Highway 61 to State Trunk Highway (STH) 97; thence
east on STH 97 to the intersection of STH 97 and STH 95; thence due
east to the east boundary of the state.
Northwest Goose Zone (included for reference only, not a special
September Goose Season Zone) - That portion of the State encompassed by
a line extending east from the North Dakota border along U.S. Highway 2
to State Trunk Highway (STH) 32, north along STH 32 to STH 92, east
along STH 92 to County State Aid Highway (CSAH) 2 in Polk County, north
along CSAH 2 to CSAH 27 in Pennington County, north along CSAH 27 to
STH 1, east along STH 1 to CSAH 28 in Pennington County, north along
CSAH 28 to CSAH 54 in Marshall County, north along CSAH 54 to CSAH 9 in
Roseau County, north along CSAH 9 to STH 11, west along STH 11 to STH
310, and north along STH 310 to the Manitoba border.
Four Goose Zone - That portion of the state encompassed by a line
extending north from the Iowa border along U.S. Interstate Highway 35
to the south boundary of the Twin Cities Metropolitan Canada Goose
Zone, then west and north along the boundary of the Twin Cities
Metropolitan Canada Goose Zone to U.S. Interstate 94, then west and
north on U.S. Interstate 94 to the North Dakota border.
Two Goose Zone - That portion of the state to the north of a line
extending east from the North Dakota border along U.S. Interstate 94 to
the boundary of the Twin Cities Metropolitan Canada Goose Zone, then
north and east along the Twin Cities Metropolitan Canada Goose Zone
boundary to the Wisconsin border, except the Northwest Goose Zone and
that portion of the State encompassed by a line extending north from
the Iowa border along U.S. Interstate 35 to the south boundary of the
Twin Cities Metropolitan Canada Goose Zone, then east on the Twin Cites
Metropolitan Canada Goose Zone boundary to the Wisconsin border.
Tennessee
Middle Tennessee Zone - Those portions of Houston, Humphreys,
Montgomery, Perry, and Wayne Counties east of State Highway 13; and
Bedford, Cannon, Cheatham, Coffee, Davidson, Dickson, Franklin, Giles,
Hickman, Lawrence, Lewis, Lincoln, Macon, Marshall, Maury, Moore,
Robertson, Rutherford, Smith, Sumner, Trousdale, Williamson, and Wilson
Counties.
Cumberland Plateau Zone - Bledsoe, Bradley, Clay, Cumberland,
Dekalb, Fentress, Grundy, Hamilton, Jackson, Marion, McMinn, Meigs,
Morgan, Overton, Pickett, Polk, Putnam, Rhea, Roane, Scott, Sequatchie,
Van Buren, Warren, and White Counties.
East Tennessee Zone - Anderson, Blount, Campbell, Carter,
Claiborne, Cocke, Grainger, Greene, Hamblen, Hancock, Hawkins,
Jefferson, Johnson, Knox, Loudon, Monroe, Sevier, Sullivan, Unicoi,
Union, and Washington Counties.
[[Page 38009]]
Wisconsin
Early-Season Subzone A - That portion of the State encompassed by a
line beginning at the Lake Michigan shore in Sheboygan, then west along
State Highway 23 to State 67, southerly along State 67 to County
Highway E in Sheboygan County, southerly along County E to State 28,
south and west along State 28 to U.S. Highway 41, southerly along U.S.
41 to State 33, westerly along State 33 to County Highway U in
Washington County, southerly along County U to County N, southeasterly
along County N to State 60, westerly along State 60 to County Highway P
in Dodge County, southerly along County P to County O, westerly along
County O to State 109, south and west along State 109 to State 26,
southerly along State 26 to U.S. 12, southerly along U.S. 12 to State
89, southerly along State 89 to U.S. 14, southerly along U.S. 14 to the
Illinois border, east along the Illinois border to the Michigan border
in Lake Michigan, north along the Michigan border in Lake Michigan to a
point directly east of State 23 in Sheboygan, then west along that line
to the point of beginning on the Lake Michigan shore in Sheboygan.
Early-Season Subzone B - That portion of the State between Early-
Season Subzone A and a line beginning at the intersection of U.S.
Highway 141 and the Michigan border near Niagara, then south along U.S.
141 to State Highway 22, west and southwest along State 22 to U.S. 45,
south along U.S. 45 to State 22, west and south along State 22 to State
110, south along State 110 to U.S. 10, south along U.S. 10 to State 49,
south along State 49 to State 23, west along State 23 to State 73,
south along State 73 to State 60, west along State 60 to State 23,
south along State 23 to State 11, east along State 11 to State 78, then
south along State 78 to the Illinois border.
Pacific Flyway
Idaho
East Zone - Bonneville, Caribou, Fremont and Teton Counties.
Oregon
Northwest Zone - Benton, Clackamus, Clatsop, Columbia, Lincoln,
Linn, Marion, Polk, Multnomah, Tillamook, Washington, Wayne, and
Yamhill Counties.
Southwest Zone - Coos, Curry, Douglas, Jackson, Josephine, and
Klamath Counties.
East Zone - Baker, Gilliam, Malheur, Morrow, Sherman, Umatilla,
Union and Wasco Counties.
Washington
Southwest Zone - Clark, Colitz, Pacific, and Wahkiakum Counties.
East Zone - Asotin, Benton, Columbia, Garfield, Klickitat, and
Whitman Counties.
Wyoming
Bear River Area - That portion of Lincoln County described in State
regulations.
Salt River Area - That portion of Lincoln County described in State
regulations.
Farson-Edon Area - Those portions of Sweetwater and Sublette
Counties described in State regulations.
Teton Area - Those portions of Teton County described in State
regulations.
Ducks
Mississippi Flyway
Iowa
North Zone: That portion of the State north of a line extending
east from the Nebraska border along State Highway 175 to State 37,
southeast along State 37 to U.S. Highway 59, south along U.S. 59 to
Interstate Highway 80, then east along I-80 to the Illinois border.
South Zone: The remainder of Iowa.
Sandhill Cranes
Central Flyway
Colorado
Regular-Season Open Area - The Central Flyway portion of the State
except the San Luis Valley (Alamosa, Conejos, Costilla, Hinsdale,
Mineral, Rio Grande and Saguache Counties east of the Continental
Divide) and North Park (Jackson County).
Kansas
Regular Season Open Area - That portion of the State west of a line
beginning at the Oklahoma border, north on I-35 to Wichita, north on I-
135 to Salina, and north on U.S. 81 to the Nebraska border.
New Mexico
Regular-Season Open Area - Chaves, Curry, De Baca, Eddy, Lea, Quay,
and Roosevelt Counties.
Middle Rio Grande Valley Area - The Central Flyway portion of New
Mexico in Socorro and Valencia Counties.
Southwest Zone - Sierra, Luna, and Dona Ana Counties.
Oklahoma
Regular-Season Open Area - That portion of the State west of I-35.
Texas
Regular-Season Open Area - That portion of the State west of a line
from the International Toll Bridge at Brownsville along U.S. 77 to
Victoria; U.S. 87 to Placedo; Farm Road 616 to Blessing; State 35 to
Alvin; State 6 to U.S. 290; U.S. 290 to Austin; I-35 to the Texas-
Oklahoma border.
North Dakota
Regular-Season Open Area - That portion of the State west of U.S.
281.
South Dakota
Regular-Season Open Area - That portion of the State west of U.S.
281.
Montana
Regular-Season Open Area - The Central Flyway portion of the State
except that area south of I-90 and west of the Bighorn River.
Wyoming
Regular-Season Open Area - Campbell, Converse, Crook, Goshen,
Laramie, Niobrara, Platte, and Weston Counties.
Riverton-Boysen Unit - Portions of Fremont County.
Park and Bighorn County Unit - Portions of Park and Bighorn
Counties.
Pacific Flyway
Arizona
Special-Season Area - Game Management Units 30A, 30B, 31, and 32.
Montana
Special-Season Area - See State regulations.
Utah
Special-Season Area - Rich County.
Wyoming
Bear River Area - That portion of Lincoln County described in State
regulations.
Salt River Area - That portion of Lincoln County described in State
regulations.
Eden-Farson Area - Those portions of Sweetwater and Sublette
Counties described in State regulations.
All Migratory Game Birds in Alaska
North Zone - State Game Management Units 11-13 and 17-26.
Gulf Coast Zone - State Game Management Units 5-7, 9, 14-16, and 10
- Unimak Island only.
Southeast Zone - State Game Management Units 1-4.
Pribilof and Aleutian Islands Zone - State Game Management Unit 10
- except Unimak Island.
Kodiak Zone - State Game Management Unit 8.
All Migratory Birds in the Virgin Islands
Ruth Cay Closure Area - The island of Ruth Cay, just south of St.
Croix.
All Migratory Birds in Puerto Rico
Municipality of Culebra Closure Area - All of the municipality of
Culebra.
Desecheo Island Closure Area - All of Desecheo Island.
Mona Island Closure Area - All of Mona Island.
El Verde Closure Area - Those areas of the municipalities of Rio
Grande and Loiza delineated as follows: (1) All
[[Page 38010]]
lands between Routes 956 on the west and 186 on the east, from Route 3
on the north to the juncture of Routes 956 and 186 (Km 13.2) in the
south; (2) all lands between Routes 186 and 966 from the juncture of
186 and 966 on the north, to the Caribbean National Forest Boundary on
the south; (3) all lands lying west of Route 186 for one kilometer from
the juncture of Routes 186 and 956 south to Km 6 on Route 186; (4) all
lands within Km 14 and Km 6 on the west and the Caribbean National
Forest Boundary on the east; and (5) all lands within the Caribbean
National Forest Boundary whether private or public.
Cidra Municipality and adjacent areas - All of Cidra Municipality
and portions of Aguas, Buenas, Caguas, Cayer, and Comerio
Municipalities as encompassed within the following boundary: beginning
on Highway 172 as it leaves the municipality of Cidra on the west edge,
north to Highway 156, east on Highway 156 to Highway 1, south on
Highway 1 to Highway 765, south on Highway 765 to Highway 763, south on
Highway 763 to the Rio Guavate, west along Rio Guavate to Highway 1,
southwest on Highway 1 to Highway 14, west on Highway 14 to Highway
729, north on Highway 729 to Cidra Municipality boundary to the point
of beginning.
BILLING CODE 4310-55-F
[[Page 38011]]
[GRAPHIC] [TIFF OMITTED] TP22JY96.000
[FR Doc. 96-18430 Filed 7-19-96; 8:45 am]
BILLING CODE 4310-55-C
Complete official Federal Register PDF
FR Doc. 96-18427 Proposed Changes in Procedures for Insular Possessions Watch Program
[Federal Register Volume 61, Number 141 (Monday, July 22, 1996)]
[Proposed Rules]
[Pages 37845-37848]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18427]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
International Trade Administration
15 CFR Part 303
DEPARTMENT OF THE INTERIOR
Office of Territorial and International Affairs
[Docket No. 960508126-6126-01]
RIN 0625-AA46
Proposed Changes in Procedures for Insular Possessions Watch
Program
AGENCIES: Import Administration, International Trade Administration,
Department of Commerce; Office of Territorial and International
Affairs, Department of the Interior.
ACTION: Proposed rule and request for comments.
-----------------------------------------------------------------------
SUMMARY: This action invites public comment on a proposal to amend the
ITA regulations, which govern duty-exemption allocations and duty-
refund entitlements for watch producers in the United States' insular
possessions (the Virgin Islands, Guam and American Samoa) and the
Northern Mariana Islands. The proposed amendments would modify
procedures for completion and use of the ``Permit to Enter Watches and
Watch Movements into the Customs Territory of the United States'' (Form
ITA-340); make the technical changes required by the passage of the
Uruguay Round Agreements Act in 1994; eliminate the mid-year report
(Form ITA-321P); change the percentage creditable towards the duty-
refund of wages for non-9\1/5\ watch and watch movement repairs and
raise one of the percentages in the formula for calculating the duty-
refund; revise the total quantity and respective territorial shares of
insular watches and watch movements which would be allowed to enter the
United States free of duty; remove reference to watches and watch
movements which are only ineligible for duty-free
[[Page 37846]]
treatment due to value-limit reasons from the percentage of non-9\1/5\
wages creditable toward the duty-refund; raise the maximum value of
components for watches; and make other necessary changes to consolidate
and simplify the regulations.
DATES: Comments must be received on or before August 21, 1996.
ADDRESSES: Address written comments to Faye Robinson, Program Manager,
Statutory Import Programs Staff, Room 4211, U.S. Department of
Commerce, Washington, D.C. 20230.
FOR FURTHER INFORMATION CONTACT: Faye Robinson, (202) 482-3526, same
address as above.
SUPPLEMENTARY INFORMATION: The insular possessions watch industry
provision in Sec. 110 of Pub. L. No. 97-446 (96 Stat. 2331) (1983) as
amended by Sec. 602 of Pub. L. No. 103-465 (108 Stat. 4991) (1994)
additional U.S. Note 5 to chapter 91 of the HTS requires the Secretary
of Commerce and the Secretary of the Interior, acting jointly, to
establish a limit on the quantity of watches and watch movements which
may be entered free of duty during each calendar year. The law also
requires the Secretaries to establish the shares of this limited
quantity which may be entered from the Virgin Islands, Guam, American
Samoa and the Northern Mariana Islands. After the Departments have
verified the data submitted on application Form ITA-334P, the
producers' duty-exemption allocations are calculated from the
territorial share in accordance with Section 303.14 of the regulations
and each producer is issued a duty-exemption license. Section 303.7
paragraph (b) of the regulations states the procedures for the issuance
of the ``Permit to Enter Watches and Watch Movements into the Customs
Territory of the United States'' (``permit'' or ``shipment permit''),
Form ITA-340, against the producers' duty-exemption licenses.
Currently, an authorized official of the territorial government issues
each shipment permit (completed from data supplied by the licensee) and
certifies that the permit is issued against a valid license and that
the remaining balance of the license, as shown on the permit, has been
verified. Under the proposed amendment, the licensed companies would be
given revised permits for completion and the licensee would have
responsibility for self-certifying that the permit is issued against a
valid license and that the remaining balance of the license, as shown
on the permit, is correct according to company records. The licensee
would also continue to certify that the watches and watch movements to
be entered under the permit have been assembled in the U.S. insular
possessions in compliance with the regulations of the Departments of
Commerce and the Interior and the U.S. Customs Service, and that they
meet all U.S. Customs Service requirements for duty-free entry under
additional U.S. note 5 of chapter 91 of the Harmonized Tariff Schedule
of the United States. A copy of the signed permit would then be taken
or sent via facsimile, no later than the day of shipment, to the
appropriate territorial government officials for recording and
verification. The completed and signed permit would be filed along with
the other Customs Service entry paperwork requirements unless the
importer or its representative transmits the data through the Automated
Broker Interface (``ABI'') system of the Customs Service. Entries made
by electronic transmission would not require the submission of a permit
(Form ITA-340) to Customs, but the permit information would have to be
maintained by the importer or its authorized agent for the period
prescribed by Customs' recordkeeping regulations, currently five years.
The changes in permit procedures are being proposed to eliminate
paperwork, namely, the submission of Form ITA-340 to Customs with ABI
entries. Also, the proposed new procedures would allow required permit
information to pass between the territorial government and the watch
producers via facsimile, which would eliminate the burden of travel to
and from the territorial office.
The permit currently consists of five self-carboned pages with one
copy to be presented to the U.S. Customs officer at the port of entry
and then forwarded to the Department of Commerce after entry number,
date of entry, and port of entry have been added by the Customs
officer; one copy to be retained by the licensee's broker or agent; one
copy to be retained by the licensee; one copy to be retained by the
territorial office; and one copy to be forwarded by the territorial
office to the Department of Commerce. Under the proposed amendment, the
revised permit would be a single page document which could be produced
by the licensee in an approved computerized format or any other medium
or format approved by the Department of Commerce. On entries made
through ABI, the licensee would not need to make any copies of the
original permit if the permit is sent via facsimile or other data
communications system to the territorial government officials and the
importer or its authorized agent (otherwise, two copies needed). For
non-electronic transmission entries filed with Customs officials at the
port, the original permit would continue to be a required part of the
paperwork submitted to Customs to receive duty-free treatment. Customs
would still forward the permit to the Department of Commerce after
filling in the entry number and date of entry. The licensee, as with
ABI entries, would need to make a copy of the permit for the
territorial government and the importer or its authorized agent's
records only if the permit is not sent via facsimile or other data
communication system. The territorial government officials would
continue to send a copy of each permit to the Department of Commerce.
The proposed revision of the permit would not only reduce the paperwork
associated with the permit, but would also eliminate the need for
Customs to mail a copy of the permit to the Department of Commerce for
all ABI entries.
Section 602 of Public Law 103-465 enacted on December 8, 1994
amended Public Law 97-446. The proposed rule would make the necessary
technical changes to reflect the new authority for the duty-refund
entitlements for the insular watch program. Changes would be made to
Authority, Sec. 303.1(a), Sec 303.2((a)(1) and Sec. 303.12(c)(2).
We also propose eliminating the mid-year report (Form ITA-321P).
Sec. 303.11 (Mid-year reporting requirement) of the regulations and
Sec. 303.2(b)(4) (Form ITA-321P) would be removed. A major purpose of
the mid-year report was to establish whether companies required more
duty-exemption allocation or wished to relinquish duty-exemption that
had been allocated. These purposes can be satisfied less formally and
without paperwork. Even if the reporting requirement and the associated
form are eliminated, companies could still request supplemental duty-
free allocations or voluntarily relinquish units in accordance with
Sec. 303.6(c) and (f). We also propose amending Sec. 303.6(f) in order
to clarify the procedures for requesting annual supplemental
allocations and relinquishing units.
We propose increasing the percentage of wages for the repair of
non-9\1/5\ watches and watch movements creditable towards the duty-
refund to a maximum of fifty percent of the firm's total creditable
wages by amending Sec. 303.2(a)(13) and Sec. 303.14(c)(3). The increase
is being proposed to permit producers to further diversify their
operations.
Currently, the percentage of wages paid for the repair of non-9\1/
5\ watches and watch movements and for the assembly of non-9\1/5\
watches and watch
[[Page 37847]]
movements (ineligible only due to value-limit reasons) which is
creditable towards the duty-refund is twenty-five percent of the firm's
other 9\1/5\ creditable wages. No duty-refunds have ever been issued on
the basis of wages paid for the production of watches and watch
movements because they exceeded regulatory value limits. Accordingly,
we propose eliminating this exclusion by amending Sec. 303.2(a)(13).
Pub. L. 97-446, as amended by Pub. L. 103-465, requires the
Secretary of Commerce and the Secretary of the Interior, acting
jointly, to establish a limit on the quantity of watches and watch
movements which may be entered free of duty during each calendar year.
The law also requires the Secretaries to establish the shares of this
limited quantity which may be entered from the Virgin Islands, Guam,
American Samoa and the Northern Mariana Islands. Regulations on the
establishment of these quantities and shares are contained in Sec.
303.3 and 303.4 of title 15, Code of Federal Regulations (15 CFR 303.3
and 303.4). The Departments propose to establish for calendar year 1997
a total quantity and respective territorial shares as shown in the
following table:
Virgin Islands.............................................. 3,100,000
Guam........................................................ 500,000
American Samoa.............................................. 500,000
Northern Mariana Islands.................................... 500,000
Compared to the total quantity established for 1994 (59 FR 8847;
February 24, 1994), this amount would be a decrease of 500,000 units.
The proposed Virgin Islands territorial share would be reduced by
500,000 and the shares for Guam, American Samoa and the Northern
Mariana Islands would not change. The amount we propose for the Virgin
Islands is more than sufficient for the anticipated needs of all the
existing producers.
We also propose raising the maximum value of components for duty-
free treatment of watches from $175 to $200 by amending Sec.
303.14(b)(3). This change would relax the limitation on the value of
imported components that may be used in the assembly of duty-free
insular watches. The proposed value levels would also help offset the
effects of the declining dollar and allow the producers wider options
in the kinds of watches they assemble.
The proposed changes include amending Sec. 303.14(c)(1)(iv), which
sets the incremental percentage for calculating that part of the duty-
refund for producers who have shipped between 600,000 and 750,000 units
free of duty into the United States. Currently the value of the duty-
refund is based on the producer's average creditable wages per unit
shipped free of duty into the United States multiplied by a factor of
90% for the first 300,000 units and declining percentages in additional
increments of 85%, 80% and 65% up to a maximum of 750,000 units. The
amendment would raise the 65% increment to 75%. In recent years most
producers have shipped fewer than 600,000 units. This change would add
a further incentive for producers to increase shipments which would
help raise territorial employment.
The following amendments are being proposed to simplify and
consolidate the regulations and to eliminate redundancy:
Remove the concluding text of Sec. 303.6(f) which would
require the publication of notices in the Federal Register to invite
new entrants and would amend Sec. 303.8(c)(2), which also related to
new entrant invitations (the regulations contain a standing invitation
to new entrants in Sec. 303.14);
Eliminate Section 303.10 (Limitations, requirements,
restriction and prohibitions) and would consolidate non-duplicative
language in Sec. 303.14(b);
Amend Sec. 303.12(b)(3) by changing registered mail to
registered, certified or express carrier mail;
Amend Sec. 303.12(c)(1) by changing the reference from
Sec. 303.2(b)(6) to Sec. 303.2(b)(5), due to other proposed changes
affecting the numbering of provisions;
Amend Sec. 303.14(b) by removing references to Sec. 303.10
and incorporating the non-duplicative language in Sec. 303.14(b);
Amend Sec. 303.14(c)(2) by replacing a reference to Sec.
303.10(c)(2) with the correct reference (Sec. 303.5(c)) and by removing
Sec. 303.14(c)(3) as redundant; and
Eliminate Sections 303.10 and 303.11.
The proposed rule does not contain policies with Federalism
implications sufficient to warrant preparation of a Federalism
assessment under Executive Order 12612.
Regulatory Flexibility Act
In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601 et
seq., the Assistant General Counsel for Legislation and Regulation has
certified to the Chief Counsel, Small Business Administration, that the
proposed rule will not have a significant economic impact on a
substantial number of small entities. This is because the rulemaking is
primarily to consolidate and simplify the regulations, make technical
changes and reduce paperwork.
Paperwork Reduction Act
This rulemaking involves information collection activities subject
to the Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq. which
are currently approved by the Office of Management and Budget under
control numbers 0625-0040 and 0625-0134. The proposed amendments reduce
the information burden on the public.
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with a collection of information unless it
displays a currently valid OMB Control Number.
It has been determined that the proposed rulemaking is not
significant for purposes of Executive Order 12866.
List of Subjects in 15 CFR Part 303
Administrative practice and procedure, American Samoa, Customs
duties and inspection, Guam, Imports, Marketing quotas, Northern
Mariana Islands, Reporting and recordkeeping requirements, Virgin
Islands, Watches and jewelry.
For reasons set forth above, 15 CFR Part 303 is proposed to be
amended as follows:
PART 303--[AMENDED]
1. The authority citation for 15 CFR Part 303 is revised to read as
follows:
Authority: Pub. L. 94-241, 90 Stat. 263 (48 U.S.C. 1681, note);
Pub. L. 97-446, 96 Stat. 2331 (19 U.S.C. 1202, note); Pub. L. 103-
465, 108 Stat. 4991.
303.1 [Amended]
2. Section 303.1(a) is amended by removing the period at the end of
the first sentence and adding ``, and amended by Pub. L. 103-465,
enacted December 8, 1994.''.
Sec. 303.2 [Amended]
3. Section 303.2(a)(1) is amended by removing the period at the end
of the sentence and adding ``, as amended by Pub. L. 103-465, enacted
December 8, 1994, 108 Stat. 4991.''.
4. In Sec. 303.2, paragraphs (a)(13) and (b)(3) are revised to read
as follows:
Sec. 303.2 Definitions and forms.
(a) * * *
(13) Creditable wages means all wages--up to the amount per person
shown in Sec. 303.14(a)(1)(i)--paid to permanent residents of the
territories employed in a firm's 9\1/5\ watch and watch movement
assembly operations, plus any wages paid for the repair of
[[Page 37848]]
non-9\1/5\ watches up to an amount equal to 50 percent of the firm's
total creditable wages. Excluded, however, are wages paid for special
services rendered to the firm by accountants, lawyers, or other
professional personnel and for the repair of non-9\1/5\ watches and
movements to the extent that such wages exceed the foregoing ratio.
Wages paid to persons engaged in both creditable and non-creditable
assembly and repair activities may be credited proportionately provided
the firm maintains production and payroll records adequate for the
Departments' verification of the creditable portion.
* * * * *
(b) * * *
(3) ITA-340 ``Permit to Enter Watches and Watch Movements into the
Customs Territory of the United States.'' This form may be obtained, by
producers holding a valid license, from the territorial government or
may be produced by the licensee in an approved computerized format or
any other medium or format approved by the Departments of Commerce and
the Interior. The completed form authorizes duty-free entry of a
specified amount of watches or watch movements at a specified U.S.
Customs port.
* * * * *
5. In Section 303.2, paragraph (b)(4) is removed and paragraphs
(b)(5) and (b)(6) are redesignated as paragraphs (b)(4) and (b)(5).
Sec. 303.6 [Amended]
6. Section 303.6(f) introductory text is amended at the beginning
of the second sentence by removing ``The'' and adding ``At the request
of a producer, the''; and in the middle of the fourth sentence by
removing ``invited'' and adding ``considered''.
7. In Sec. 303.6, the concluding text of paragraph (f) is removed.
8. Section 303.7 is amended by revising paragraph (b) to read as
follows:
Sec. 303.7 Issuance of licenses and shipment permits.
* * * * *
(b) Shipment Permit Requirements (ITA-340). (1) Producers may
obtain shipment permits from the territorial government officials
designated by the Governor. Permits may also be produced in any
computerized or other format or medium approved by the Departments. The
permit is for use against a producer's valid duty-exemption license and
a permit must be completed for every duty-free shipment.
(2) Each permit must specify the license and permit number, the
number of watches and watch movements included in the shipment, the
unused balance remaining on the producer's license, pertinent shipping
information and must have the certification statement signed by an
official of the licensee's company. A copy of the completed permit must
be sent electronically or taken to the designated territorial
government officials, no later than the day of shipment, for
confirmation that the producer's duty exemption license has not been
exceeded and that the permit is properly completed.
(3) The permit (form ITA-340) shall be filed with Customs along
with the other required entry documents to receive duty-free treatment
unless the importer or its representative clears the documentation
through Customs' automated broker interface. Entries made
electronically do not require the submission of a permit to Customs,
but the shipment data must be maintained as part of a producer's
recordkeeping responsibilities for the period prescribed by Customs'
recordkeeping regulations. U.S. Customs Service Import Specialists may
request the documentation as they deem appropriate to substantiate
claims for duty-free treatment, allowing a reasonable amount of time
for the importer to produce the permit.
Sec. 303.8 [Amended]
9. In Sec. 303.8, paragraph (c)(2) is revised to read as follows:
Sec. 303.8 Maintenance of duty-exemption entitlements.
* * * * *
(c) * * *
(2) Reallocate the allocation or part thereof to new entrant
applicants; or
* * * * *
Sec. 303.10 [Removed and Reserved]
10. Section 303.10 is removed and reserved.
Sec. 303.11 [Removed and Reserved]
11. Section 303.11 is removed and reserved.
Sec. 303.12 [Amended]
12. Section 303.12(b)(3) introductory text is amended by adding,
after the word ``registered'', the words ``, certified or express
carrier mail''.
13. Section 303.12(c)(1) is amended by removing from the first
sentence ``Sec. 303.2(b)(6)'' and adding ``Sec. 303.2(b)(5)''.
14. Section 303.12(c)(2) is amended at the end of the first
sentence by removing the period and adding ``, as amended by Pub. L.
103-465.''.
15. In Sec. 303.14, the heading of paragraph (b) and paragraphs
(b)(1) and (b)(3) are revised and paragraph (b)(4) is added to read as
follows:
Sec. 303.14 Allocation factors and miscellaneous provisions.
* * * * *
(b) Minimum assembly requirements and prohibition of preferential
supply relationship. (1) No insular watch movement or watch may be
entered free of duty into the customs territory of the United States
unless the producer used 30 or more discrete parts and components to
assemble a mechanical watch movement and 33 or more discrete parts and
components to assemble a mechanical watch.
* * * * *
(3) Watch movements and watches assembled from components with a
value of more than the $35 for watch movements and $200 for watches
shall not be eligible for duty-exemption upon entry into the U.S.
Customs territory. Value means the value of the merchandise plus all
charges and costs incurred up to the last point of shipment (i.e.,
prior to entry of the parts and components into the territory).
(4) No producer shall accept from any watch parts and components
supplier advantages and preferences which might result in a more
favorable competitive position for itself vis-a-vis other territorial
producers relying on the same supplier. Disputes under this paragraph
may be resolved under the appeals procedures contained in
Sec. 303.13(b).
* * * * *
16. Section 303.14(c)(1)(iv) is amended by removing ``65%'' and
adding ``75%''.
17. Section 303.14(c)(2) is amended by removing
``Sec. 303.10(c)(2)'' and adding ``Sec. 303.5(c)''.
18. Section 303.14(c)(3) is removed.
19. Section 303.14(e) is amended by removing ``3,600,000'' and
adding ``3,100,000'' in its place.
Paul L. Joffe,
Acting Assistant Secretary for Import Administration, International
Trade Administration, Department of Commerce.
Allen Stayman,
Director, Office of Insular Affairs, Department of the Interior.
[FR Doc. 96-18427 Filed 7-19-96; 8:45 am]
BILLING CODE 3510-DS-P and 4310-93-P
Complete official Federal Register PDF
FR Doc. 96-18268 Miscellaneous Changes to General Industry and Construction Standards; Proposed Paperwork Collection, Comment Request for Coke Oven Emissions and Inorganic Arsenic
[Federal Register Volume 61, Number 141 (Monday, July 22, 1996)]
[Proposed Rules]
[Pages 37848-37865]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18268]
=======================================================================
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[[Page 37849]]
DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Parts 1910 and 1926
[Docket No. S-778]
Miscellaneous Changes to General Industry and Construction
Standards; Proposed Paperwork Collection, Comment Request for Coke Oven
Emissions and Inorganic Arsenic
AGENCY: Occupational Safety and Health Administration, Labor.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: With this document, the Occupational Safety and Health
Administration (OSHA) is continuing the process of removing or revising
standards that are out of date, duplicative, unnecessary, or
inconsistent in response to a March 4, 1995 memorandum from the
President. This document proposes substantive changes to both health
and safety standards to reduce regulatory requirements while
maintaining employee protection. Changes proposed include reducing
chest x-ray frequency and eliminating sputum cytology examinations for
the coke oven and inorganic arsenic standards, changing the emergency-
response provisions of the vinyl chloride standard, eliminating public
safety provisions of the temporary labor camp standard, eliminating
unnecessary OSHA standard references in the textile industry standards
and others.
DATES: Written comments and requests for a hearing on this proposal
must be postmarked by September 20, 1996.
ADDRESSES: Comments should be submitted in quadruplicate or 1 original
(hardcopy) and 1 diskette (5\1/4\ or 3\1/2\ inch) in WordPerfect 5.0,
5.1, 6.0 or 6.1, or ASCII to: Docket Office, Docket No. S-778, U.S.
Department of Labor, Occupational Safety and Health Administration,
Room N-2634, 200 Constitution Avenue, NW., Washington, DC 20210
(telephone (202) 219-7894). Any information not contained on disk
(e.g., studies, articles) must be submitted in quadruplicate. Written
comments limited to 10 pages in length also may be transmitted by
facsimile to (202) 219-5046, provided an original and 3 copies are sent
to the Docket Office thereafter.
Requests for a hearing should be sent to: Mr. Tom Hall, U.S.
Department of Labor, Occupational Safety and Health Administration,
Room N-3647, 200 Constitution Avenue NW., Washington, DC 20210
(telephone (202) 219-8615).
Comments on the reduction of paperwork burden and renewal of
paperwork authorization for inorganic arsenic and coke oven emissions
should be sent to the OSHA docket and to the Office of Information and
Regulatory Affairs, OMB, New Executive Office Bldg., Rm. 10235, 725
17th St. NW., Washington, DC 20503, Attn. OSHA Desk Officer.
For an electronic copy of this Federal Register notice, contact the
Labor News Bulletin Board at (202) 219-4748; or OSHA's WebPage on the
Internet at http://www.OSHAgov. For news releases, fact sheets and
other short documents, contact OSHA FAX at (900) 555-3400 at $1.50 per
minute.
FOR FURTHER INFORMATION CONTACT: Technical inquiries should be directed
to Mr. Pat Cattafesta, Office of Electrical/Electronic and Mechanical
Safety Standards, U.S. Department of Labor, Occupational Safety and
Health Administration, Room N3609, 200 Constitution Ave., NW.,
Washington, DC 20210 [telephone (202)-219-7202; FAX (202)-219-7477].
Requests for interviews and other press inquiries should be
directed to Ms. Ann Cyr, U.S. Department of Labor, Occupational Safety
and Health Administration, Office of Information and Consumer Affairs,
Room N-3647, 200 Constitution Avenue NW., Washington, DC 20210
[telephone (202) 219-8148].
SUPPLEMENTARY INFORMATION:
I. Background
In March 1995, the President directed Federal agencies to undertake
a line-by-line review of their regulations to determine where they
could be simplified or clarified. OSHA initiated such a review, and as
a result completed a document on May 31, 1995, entitled ``OSHA's
Regulatory Reform Initiatives.'' That document detailed the Agency's
findings as to which regulations could be deleted or revised without
reducing employee health and safety, and which by clarifying
requirements might improve compliance by employers and, consequently,
provide enhanced occupational safety and health protection to
employees. This regulatory improvement process involves revocation of
outdated and obsolete provisions, elimination of substantive
requirements which do not appear to be effective, consolidation of
repetitious provisions, and clarification of confusing language. The
Agency began this process with an administrative notice which made
minor clarifications and technical amendments (61 FR 9228, March
7,1996). This document proposes substantive changes to standards which
the agency believes are unnecessary or ineffective in protecting worker
health or safety. As these changes are substantive, notice and comment
is required. Final decisions on carrying out the proposed revisions
will depend on the record after considering public comment.
II. Summary and Explanation
Amendments to Part 1910
A. Explosives and Blasting Agents (Sec. 1910.109)
When Sec. 1910.109 was first promulgated, Table H-21 (American
Table of Distances for Storage of Explosives) specified the distances
that must be maintained between stored explosives and inhabited
buildings, passenger railways, and public highways. It also specified
required distances between stored explosive magazines. Table H-21 also
applied to the manufacture of explosives to the extent that it
specified distances between an explosive manufacturing building and
inhabited buildings, passenger railways, public highways, and
magazines.
In 1978, OSHA published a final rule (43 FR 49726) which revoked
certain requirements that were called ``nuisance standards'' because
they did not deal directly with workplace safety and health or were the
jurisdiction of some other regulatory agency. Among the requirements
revoked were the three columns of Table H-21 that specified distances
to inhabited buildings, passenger railways, and public highways because
they dealt with public and property protection-not employee protection.
As a result, the current Table H-21 specifies only the distances
between magazines.
Because Paragraph (c)(1)(vi) of Sec. 1910.109 was inadvertently
overlooked during the 1978 rulemaking, this paragraph still makes
reference to ``inhabited buildings, passenger railways, and public
highways.'' Consequently, OSHA is proposing to remove this phrase.
Also, the first sentence of footnote number 5 of Table H-21 reads:
``This table applies only to the manufacture and permanent storage of
commercial explosives.'' OSHA is proposing to remove the words
``manufacture and'' from the first sentence of footnote number 5 of
Table H-21.
Paragraph (d)(1)(iv) of Sec. 1910.109 states that blasting caps or
electric blasting caps shall not be transported over the highways on
the same vehicles with other explosives. However, DOT
[[Page 37850]]
regulations at 49 CFR 177.835(g)((3)(i) provide an approved method for
the transport of detonators (blasting caps) on the same vehicle with
other explosives.
OSHA believes that blasting caps can be safely transported on the
same vehicle with other explosives if such transport is done in
accordance with the method specified in the Department Of
Transportation (DOT) regulations.
Therefore, OSHA is proposing to amend paragraph (d)(1)(iv) to
permit the transportation of blasting caps or electric blasting caps on
the same vehicle with other explosives if they are transported in
accordance with the method specified in DOT regulations at 49 CFR
177.835(g)(3)(i).
Paragraph (e)(2)(i) of Sec. 1910.109 states:
Empty boxes and paper and fiber packing materials which have
previously contained high explosives shall not be used again for any
purpose, but shall be destroyed by burning at an approved isolated
location out of doors, and no person shall be nearer than 100 feet
after the burning has started.
The purpose of this requirement is to ensure that any boxes or
packing material that may have been contaminated by leaking explosives
do not present a hazard to employees. Consequently, all boxes and
packing material, contaminated or not, may not be reused and must be
disposed of by burning at an approved outdoor location.
However, environmental agencies often will not permit the burning
of such materials. In addition, DOT permits the reuse of packaging
materials if such reuse is accomplished in accordance with the
requirements of 49 CFR 173.28. Thus, employers are confronted by a
conflict between the standards of two Federal agencies. OSHA believes
that such containers and packing materials should be permitted to be
reused if uncontaminated, and if accomplished in accordance with DOT
regulations.
Therefore, OSHA is proposing that paragraph (e)(2)(i) of
Sec. 1910.109 be amended to read as follows:
Empty containers and paper and fiber packing materials which
have previously contained explosive materials shall be disposed of
in a safe manner, or reused in accordance with Department of
Transportation requirements at 49 CFR 173.28.
B. Storage and Handling of Liquefied Petroleum Gases (1910.110)
Paragraphs (b)(15)(v)-(vii) of Sec. 1910.110 contain requirements
for the location of backflow check valves, excess-flow valves, and
shutoff valves on tank cars and transport trucks. Paragraph
(b)(15)(viii) of Sec. 1910.110 contains requirements for locating tank
cars and transport trucks during loading and unloading operations.
The design of transportation vehicles and the safe location of such
vehicles during loading and unloading operations are under the
jurisdiction of DOT and not OSHA. Therefore, OSHA is proposing to
delete paragraphs (b)(15)(v)-(viii) of Sec. 1910.110. OSHA is also
proposing to redesignate paragraph (b)(15)(ix) as new paragraph
(b)(15)(v) of Sec. 1910.110.
Paragraphs (c)(2)(ii)-(iv) of Sec. 1910.110 contain specifications
for the marking of LPG cylinders. These marking specifications are
duplicative of DOT requirements. Accordingly, OSHA is proposing to
delete them.
Paragraph (e)(10) of Sec. 1910.110 contains limitation requirements
on the capacity of LPG containers that are used to fuel passenger
carrying vehicles. As requirements pertaining to passenger carrying
vehicles are under the jurisdiction of DOT, OSHA is proposing to delete
the text of paragraph (e)(10) of Sec. 1910.110.
Paragraph (g) of Sec. 1910.110 contains requirements for the
installation of LP-gas systems on commercial vehicles. The installation
of LP-gas systems on commercial vehicles is under the jurisdiction of
DOT. OSHA, therefore, is proposing to delete the text from paragraph
(g) of Sec. 1910.110 and to reserve the paragraph designation.
C. Storage and Handling of Anhydrous Ammonia (Sec. 1910.111)
Paragraph (f)(7) of Sec. 1910.111 contains safety requirements for
full trailers and semitrailers that transport ammonia. Paragraph (f)(8)
of Sec. 1910.111 contains requirements pertaining to the protection of
such vehicles against collision. As full trailers and semitrailers that
transport ammonia are under the jurisdiction of DOT, OSHA is proposing
to delete the text of paragraphs (f)(7) and (f)(8) of Sec. 1910.111.
D. Sanitation (Sec. 1910.141)
OSHA proposes to delete the definition for ``lavatory,'' given in
paragraph (a)(2)(i) of Sec. 1910.141. This definition states that
``lavatory means a basin or similar vessel used exclusively for washing
of hands, arms, faces, and head.'' OSHA believes that the meaning of
the term is self-explanatory in the context of the section. OSHA
specifically seeks comment as to whether, in fact, deletion of this
definition may diminish the health of employees in affected workplaces.
E. Temporary Labor Camps (Sec. 1910.142)
Section 1910.142 (a)(4) provides regulations for the closing of
temporary labor camps. Upon the closing of a camp site, the regulations
require the employer to collect all refuse, garbage, and manure, to
fill all privy pits, to lock and secure any remaining privy buildings,
and to have all buildings in a clean and sanitary condition.
Because this paragraph deals with closing the site, which occurs
after the employees have left, this paragraph essentially provides not
for worker safety, but for public safety, which is outside the Agency's
mission. For these reasons, OSHA proposes to remove
Sec. 1910.142(a)(4). OSHA does note, however, that employers may be
responsible for adhering to other standards regarding public health and
safety in the locality or State in which the camp site is located.
F. Safety Color Code for Marking Physical Hazards (Sec. 1910.144)
Section 1910.144 provides guidance on the colors to use to mark
physical hazards. These colors were required so that emergency devices
and physical hazards could be identified quickly by employees. Because
removal of these requirements from 29 CFR part 1910 would have minimal
effect on employee safety and health, the Agency has decided not to
provide this standard. For employers desiring guidance in this area,
the American National Standards Institute, ANSI Z535.1-91, Safety Color
Code is available. OSHA, therefore, proposes to remove Sec. 1910.144.
G. Medical Services and First Aid (Sec. 1910.151)
Section 1910.151 states the obligation of employers to have medical
services available to provide advice on workplace health matters, and
for use by employees if needed.
Paragraph (b), in particular, requires the availability of first
aid services for workplaces that do not have medical providers nearby.
This paragraph also requires that first aid supplies approved by the
consulting physician be on hand.
OSHA proposes to amend Sec. 1910.151(b) so that the approval of
first aid supplies by the consulting physician is no longer required,
although the standard would continue to require that adequate supplies
be available. Commercial first aid kits are readily available and will
meet the needs of most employers and most worksites. If the workplace
has unusual hazards or poses special problems that would require
modification of a commercial first aid kit, or the
[[Page 37851]]
development of a specialized kit, the Agency expects that the employer
will provide those special items. If the employer is unsure whether a
commercially available kit is sufficient, professional advice should be
obtained. Such advice, however, would not be required by OSHA as a
matter of course. These changes will allow the employer more
flexibility in meeting the Agency's first aid requirements, without
affecting employee health and safety.
H. Fire Brigades (Sec. 1910.156)
Section 1910.156 contains requirements for the organization,
training, and provision of personal protective equipment for fire
brigades. Requirements for negative-pressure self-contained breathing
apparatus are listed in Sec. 1910.156(f)(2)(iii). These requirements
were intended to remain mandatory for 18 months after the National
Institute for Occupational Safety and Health (NIOSH) certified a
positive-pressure breathing apparatus with the same or longer service
life as the currently required negative-pressure breathing apparatus.
The 18-month period was to allow employers to phase in the new
apparatus.
NIOSH has since certified a positive-pressure breathing apparatus,
and the 18 month phase-in period has ended. This paragraph is therefore
unnecessary, and OSHA proposes to remove it.
I. Helicopters (Sec. 1910.183)
Section 1910.183(a) states that helicopter cranes are expected to
comply with any applicable regulations of the Federal Aviation
Administration (FAA). Since OSHA does not have the statutory authority
to enforce FAA regulations for helicopters, (found at 14 CFR part 133),
it is proposed that Sec. 1910.183(a) be revoked.
J. Pulp, Paper, Paperboard Mills (Sec. 1910.261)
Section 1910.261 contains requirements that apply to establishments
where pulp, paper, and paperboard are manufactured and converted.
Certain standards in paragraphs (a), (b), (c), (d), (e), (g), (h), (j),
(k), and (m) of Sec. 1910.261 require these establishments to comply
with a number of standards of the American National Standards Institute
(ANSI). The inclusion of these standards in Sec. 1910.261 duplicates
other standards in part 1910 which apply to general industry as a
whole. Many of the other general industry standards cover the same
hazards, and in many cases, they share the same source materials as the
provisions in Sec. 1910.261.
All but one of the ANSI standards referenced in Sec. 1910.261 were
source documents for OSHA standards that have general application
without regard to any specific industry. For example, ANSI Standard
A12.1-1967, Safety Requirements for Floor and Wall Openings, Railings,
and Toeboards is referenced in Sec. 1910.261(a)(3)(ii) and is also the
source standard for Sec. 1910.23, Guarding Floor and Wall Openings and
Holes.
OSHA believes that the OSHA standard, codified in Section 1910.23,
provides equivalent or better protection for workers in this industry
than the ANSI standard, A12.1-1967, which is referenced in
Sec. 1910.261. OSHA proposes, therefore, to revoke
Sec. 1910.261(a)(3)(ii).
Similarly, there are a number of other OSHA standards that OSHA
believes can provide equivalent or better protection for pulp and paper
workers than the ANSI standards referenced in paragraphs (a), (b), (c),
(d), (e), (g), (h), (j), (k) and (m) in Sec. 1910.261. For this reason,
OSHA proposes to revoke many provisions of Sec. 1910.261 and to apply
the corresponding provisions found elsewhere in part 1910. The
following table lists the OSHA standards proposed for revocation, the
referenced ANSI standards and the OSHA standards that will provide
equivalent or better protection.
------------------------------------------------------------------------
Standard proposed for Referenced ANSI Equivalent OSHA
revocation standard standard
------------------------------------------------------------------------
1910.261(a)(3)(ii).......... A12.1-1967.......... Sec. 1910.23
1910.261(a)(3)(iv).......... A14.1-1968.......... Sec. 1910.25
1910.261(a)(3)(v)........... A14.2-1956.......... Sec. 1910.26
1910.261(a)(3)(vi).......... A14.3-1956.......... Sec. 1910.27
1910.261(a)(3)(ix).......... B15.1-1953.......... Sec. 1910.219
1910.261(a)(3)(xi).......... B30.2-1967.......... Sec. 1910.179
B30.5-1968.......... Sec. 1910.180
1910.261(a)(3)(xii)......... B30.2-1967.......... Sec. 1910.179
1910.261(a)(3)(xiii)........ B30.2-1943.......... Sec. 1910.179
B30.5-1968.......... Sec. 1910.180
1910.261(a)(3)(xv).......... B56.1-1969.......... Sec. 1910.178
1910.261(a)(3)(xvii)........ 01.1-1954........... Sec. 1910.213
Sec. 1910.214
1910.261(a)(3)(xviii)....... Z4.1-1968........... Sec. 1910.141
1910.261(a)(3)(xix)......... Z9.1-1951........... Sec. 1910.94
1910.261(a)(3)(xx).......... Z9.2-1960........... Sec. 1910.94
1910.261(a)(3)(xxiv)........ Z35.1-1968.......... Sec. 1910.145
1910.261(a)(3)(xxv)......... Z87.1-1968.......... Sec. 1910.133
1910.261(a)(3)(xxvi)........ Z88.2-1969.......... Sec. 1910.134
1910.261(a)(3)(xxvii)....... Z89.1-1969.......... Sec. 1910.135
1910.261(b)(1).............. B15.1-1953.......... Sec. 1910.219
1910.261(b)(2).............. Z24.22-1957......... Sec. 1910.132
Z87.1-1968.......... Sec. 1910.133
Z88.2-1968.......... Sec. 1910.134
Z89.1-1969.......... Sec. 1910.135
1910.261(b)(3).............. A12.1-1967.......... Sec. 1910.23
1910.261(b)(6).............. B56.1-1969.......... Sec. 1910.178
1910.261(c)(2)(vi).......... B30.2-1967.......... Sec. 1910.179
1910.261(c)(3)(i)........... A12.1-1967.......... Sec. 1910.23
A14.1-1968.......... Sec. 1910.25
A14.2-1956.......... Sec. 1910.26
A14.3-1956.......... Sec. 1910.27
1910.261(c)(8)(i)........... B30.2-1967.......... Sec. 1910.179
[[Page 37852]]
1910.261(c)(11)............. B56.1-1969.......... Sec. 1910.30
1910.261(d)(1)(ii).......... Z87.1-1968.......... Sec. 1910.133
1910.261(e)(3).............. B15.1-1955.......... Sec. 1910.219
1910.261(e)(7).............. O1.1-1961........... Sec. 1910.213
1910.261(e)(9).............. B15.1-1953.......... Sec. 1910.219
1910.261(g)(15)(vi)......... Z4.1-1968........... Sec. 1910.141
1910.261(h)(2)(iii)......... K13.1-1967.......... Sec. 1910.134
Z88.2-1967..........
1910.261(j)(1)(iv).......... B15.1-1958.......... Sec. 1910.219
1910.261(j)(3).............. A12.1-1967.......... Sec. 1910.23
1910.261(j)(4)(ii).......... A12.1-1967.......... Sec. 1910.23
1910.261(j)(5)(iv).......... B15.1-1953.......... Sec. 1910.219
1910.261(j)(6)(ii).......... B15.1-1953.......... Sec. 1910.219
1910.261(k)(2)(i)........... B15.1-1953.......... Sec. 1910.219
1910.261(k)(4).............. A12.1-1967.......... Sec. 1910.23
1910.261(m)(2).............. B56.1-1969.......... Sec. 1910.178
1910.261(m)(4).............. Z87.1-1968.......... Sec. 1910.133
1910.261(m)(5)(i)........... Z87.1-1968.......... Sec. 1910.132
1910.261(m)(5)(ii).......... B56.1-1969.......... Sec. 1910.178
------------------------------------------------------------------------
Similarly, OSHA believes that the OSHA standard, Sec. 1910.95,
Occupational Noise Exposure, provides worker protection that is at
least equivalent to that provided by the ANSI standard, Z24.22-1957,
Method of Measurement of Real-Ear Attenuation of Ear Protectors, that
is referenced in Sec. 1910.261(a)(3)(xxii). OSHA, therefore, proposes
to revoke Sec. 1910.261(a)(3)(xxii) to eliminate this duplicative
coverage.
Paragraph (b)(5) of Sec. 1910.261 requires specific procedures to
be followed and personal protective equipment to be worn by workers in
the pulp, paper and paperboard industry who enter closed vessels,
tanks, chip bins, and similar equipment. This standard, however, does
not provide the necessary requirements for monitoring, testing, and
communication that are critical when working in a confined space.
OSHA proposes to revoke paragraph (b)(5) of Sec. 1910.261 for two
reasons. First, Sec. 1910.146, Permit-Required Confined Spaces,
provides better protection for workers who are required to work in a
confined space. Section 1910.146 provides a comprehensive regulatory
program within which employers can effectively protect employees who
work in confined spaces. This program addresses the ongoing need for
monitoring, testing and communication at these workplaces. Second,
employers are required to comply with Sec. 1910.146 when a specific
industry standard does not completely address the known hazards of
working in a confined space, a principle noted in paragraph (c)(2) of
Sec. 1910.5, which means that employers must already comply with
Sec. 1910.146 rather than paragraph (b)(5) of Sec. 1910.261.
Paragraph (c)(2)(vii) of Sec. 1910.261 requires employers to
provide personal protective equipment to workers on a job basis. Since
employers are required to comply with the general requirements for
personal protective equipment in Sec. 1910.132, OSHA proposes to revoke
paragraph (c)(2)(vii) to eliminate this duplication of requirements in
a way that will not decrease worker protection.
Paragraphs (c)(6)(ii) and (c)(7)(ii) of Sec. 1910.261 require
employers to provide workers with personal protective equipment and ear
protection when the noise level may be harmful. Since employers are
required to comply with the general requirements for personal
protective equipment in Sec. 1910.132 and the general requirements for
occupational noise exposure in Sec. 1910.95, OSHA proposes to revoke
paragraphs (c)(6)(ii) and (c)(7)(ii) to eliminate this duplication of
requirements.
Paragraphs (g)(1)(iv) and (k)(16) of Sec. 1910.261 are specific
electrical standards prescribed for the pulp, paper and paperboard
industry that require compliance with subpart S, Electrical, in OSHA's
standards. Since all of general industry is required to comply with all
of subpart S for electrical standards, OSHA proposes to revoke
paragraphs (g)(1)(iv) and (k)(16) of Sec. 1910.261 to eliminate this
duplication.
Paragraph (g)(2)(i) of Sec. 1910.261 requires employers to provide
employees working in the acid department with gas masks. Since
employers are required to comply with the general requirements for
respiratory protection in Sec. 1910.134, OSHA proposes to revoke
paragraph (g)(2)(i) to eliminate this regulatory duplication.
Paragraph (g)(15)(iv) of Sec. 1910.261 is a standard prescribed for
the pulp, paper and paperboard industry that addresses lead dust
exposure, and requires compliance with Sec. 1910.1000, Air
Contaminants, in OSHA's standards. Since employers are required to
comply with all of Sec. 1910.1000, including paragraph 1910.1025 which
addresses lead exposure, OSHA proposes to revoke paragraph (g)(15)(iv)
to eliminate this duplication.
K. Textiles (Sec. 1910.262)
Paragraphs (c)(3) and (gg) of Sec. 1910.262 require employers in
textile establishments to provide guards for equipment that conform to
the requirements of Sec. 1910.219. Since all of general industry is
required to comply with all of the general requirements of
Sec. 1910.219, OSHA proposes to revoke paragraphs (c)(3) and (gg) of
Sec. 1910.262 to eliminate this regulatory duplication.
Similarly, for the purpose of eliminating duplicate standards
coverage, OSHA proposes to revoke a number of other standards in
Sec. 1910.262 that reference occupational safety and health standards
of general application. The following table lists the OSHA standards
proposed for revocation and the referenced general OSHA standards which
will continue to apply to the Textile industry.
------------------------------------------------------------------------
Standard Proposed for Revocation Referenced OSHA Standard
------------------------------------------------------------------------
1910.262(c)(3)......................... 1910.219.
1910.262(c)(4)......................... 1910.141.
1910.262(gg)........................... 1910.219.
1910.262(ll)(1)........................ 1910.23.
1910.262(qq)(1)........................ 1910.132.
1910.133.
1910.134.
1910.262(qq)(2)........................ 1910.134.
1910.262(rr)........................... 1910.1000.
1910.94(d).
------------------------------------------------------------------------
[[Page 37853]]
Paragraph (c)(8) of Sec. 1910.262 requires employers to identify
physical hazards in accordance with the requirements of Sec. 1910.144.
Section 1910.144 provides guidance on the colors to use to mark
physical hazards. As noted earlier in Section F of this preamble, OSHA
is proposing to revoke Sec. 1910.144, since the Agency believes that
sufficient guidance on this matter is given by the American National
Standards Institute standard ANSI Z535.1-1991, Safety Color Code, and
that removal of these requirements from 29 CFR part 1910 would have no
discernible effect on employee safety and health. Since OSHA is
proposing to revoke Sec. 1910.144, which is referenced in
Sec. 1910.262(c)(8), OSHA also proposes to revoke Sec. 1910.262(c)(8).
L. Sawmills (1910.265)
Section 1910.265 contains safety requirements for sawmill
operations including, but not limited to, log and lumber handling,
sawing, trimming, and planing; waste disposal; operation of dry kilns;
finishing; shipping; storage; yard and yard equipment; and for power
tools and related equipment used in connection with such operations.
Certain paragraphs of this section incorporate and apply occupational
safety and health standards of general application which apply to all
employment covered by part 1910. As required in paragraph (a)(2) of
this section, such standards apply to sawmill operations in accordance
with the rules of construction set forth in Sec. 1910.5. For example,
the general standard regarding mechanical power-transmission apparatus
in Sec. 1910.219 is applicable to employment in sawmill operations
covered in Sec. 1910.265, and yet it is also incorporated by reference
in paragraph (c)(22) of Sec. 1910.265. OSHA believes that worker safety
is not enhanced by repeating the application of Sec. 1910.219 in
Sec. 1910.265, and proposes to revoke paragraph (c)(22) of
Sec. 1910.265. Also, since Sec. 1910.5 applies to all industries,
including the sawmill industry, OSHA proposes to revoke paragraph
(a)(2) of Sec. 1910.265 which merely references Sec. 1910.5.
Similarly, for the purpose of eliminating duplicate standards
coverage, OSHA proposes to revoke various provisions currently found in
Sec. 1910.265 which reference occupational safety and health standards
of general application. The following table lists the OSHA standards
proposed for revocation and the referenced general OSHA standards which
will continue to apply to sawmills.
------------------------------------------------------------------------
Standard Proposed for Revocation Referenced OSHA Standard
------------------------------------------------------------------------
1910.265(c)(3)(i)...................... 1910.23.
1910.265(c)(10)........................ 1910.25-27.
1910.265(c)(14)........................ 1910.110.
1910.265(c)(16)........................ 1910.106.
1910.265(c)(17)(i)..................... 1910.1000.
1910.265(c)(17)(ii).................... Subpart I.
1910.265(c)(17)(iii)................... 1910.94(d).
1910.265(c)(22)........................ 1910.219.
1910.265(c)(26)(i)..................... 1910.219.
1910.265(c)(30)(vi).................... 1910.219.
1910.265(c)(30)(x)..................... 1910.178.
1910.265(e)(3)(ii)(d).................. 1910.219.
1910.265(f)(9)......................... 1910.219.
1910.265(g)............................ Subpart I.
1910.265(h)............................ 1910.141.
1910.265(i)............................ Subpart L.
------------------------------------------------------------------------
Paragraph (c)(11) of Sec. 1910.265 requires employers to mark
physical hazards as specified in Sec. 1910.144. Section 1910.144
provides guidance on the colors to use to mark physical hazards. As
noted earlier in Section F of this preamble, OSHA is proposing to
revoke Sec. 1910.144 since the Agency believes that sufficient guidance
on this matter is given by the American National Standards Institute
standard ANSI Z535.1-1991, Safety Color Code, and that removal of these
requirements from 29 CFR Part 1910 would have no discernible effect on
employee safety and health. Since OSHA is proposing to revoke
Sec. 1910.144, which is referenced in Sec. 1910.265(c)11), OSHA also
proposes to revoke Sec. 1910.265(c)(11).
Paragraph (c)(24)(iv)(a) of Sec. 1910.265 requires employers to
inspect slings daily when in use, and to remove a sling from service if
it is found to be defective. In addition, paragraph (c)(24)(iv)(c) of
Sec. 1910.265 requires employers to provide suitable protection between
the sling and the sharp unyielding surfaces of the load to be lifted.
These provisions duplicate some of the general requirements for the use
of slings in Sec. 1910.184 which also include provisions for sling
inspection, removal and protection. OSHA proposes to revoke paragraphs
(c)(24)(iv)(a) and (c), to eliminate the duplication of requirements
for slings in Sec. 1910.265.
M. Agricultural Operations (Sec. 1910.267)
Section 1910.267 previously contained part 1910 requirements
applicable to agricultural operations. These requirements were moved to
Sec. 1928.21 in 1975 (40 FR 18268). Since that time, Sec. 1910.267 has
been used simply to refer employers to Sec. 1928.21 to locate these
requirements. OSHA believes that Sec. 1910.267 is now unnecessary and
proposes to revoke it.
N. Telecommunications (Sec. 1910.268)
Paragraph (f) of 1910.268 contains requirements for rubber
insulating equipment (gloves and blankets) used at telecommunications
centers and field installations. As discussed below, OSHA has
determined that these requirements are now outdated, and that they
should be deleted.
OSHA believes that the provisions of paragraph (f) are unnecessary
for several reasons. First, the general industry standard found at 29
CFR 1910.137, Electrical Protective Equipment, addresses all rubber
insulating equipment, and revocation of paragraph (f) of Sec. 1910.268
would eliminate this duplication of standards and related compliance
problems. Second, Sec. 1910.137 provides more comprehensive employee
protection, since it covers requirements for manufacture and marking,
electrical proof tests, voltages, test intervals, workmanship and in-
service care and use. Third, Sec. 1910.137, is written in performance-
oriented language that provides employers with flexibility in meeting
the standard. Thus, OSHA believes that paragraph (f) of Sec. 1910.268
can be revoked without diminishing employee safety and health.
O. Vinyl Chloride (Sec. 1910.1017)
OSHA is proposing to delete paragraphs (g)(5)(i) and (ii) of
Sec. 1910.1017, vinyl chloride, which was promulgated in 1974. These
paragraphs address entry into unknown and hazardous vinyl-chloride
atmospheres. Paragraph (g)(5)(i) allows entry into unknown
concentrations of vinyl chloride or concentrations greater than 36,000
ppm (lower explosive limit) only for purposes of life rescue. Paragraph
(g)(5)(ii) allows entry into concentrations of vinyl chloride of less
than 36,000 ppm, but greater than 3,600 ppm only for purposes of life
rescue, firefighting, or securing equipment which will prevent a
greater release of vinyl chloride.
In 1989, OSHA promulgated industry-wide provisions addressing
emergency response with respect to entry into unknown or hazardous
atmospheres under Sec. 1910.120, the Hazardous Waste Operations and
Emergency Response (HAZWOPER) standard (54 FR 9317, Mar. 6, 1989).
Included in the scope of the HAZWOPER standard are requirements for
``Emergency response operations for releases of, or substantial threats
of releases of, hazardous substances without regard to the location of
the hazard.'' Thus, vinyl chloride, which is a ``hazardous substance''
as defined under the
[[Page 37854]]
HAZWOPER standard, is covered by the emergency response provisions in
both the vinyl chloride and HAZWOPER rules. In regard to overlapping
provisions in two applicable standards, the HAZWOPER standard
specifically states in paragraph (a)(2)(i) that ``If there is a
conflict or overlap [between emergency-response provisions in
Sec. 1910.120 and provisions in substance-specific standards], the
provision more protective of employee safety and health shall apply * *
*.''
OSHA believes that the emergency-response provisions in
Sec. 1910.120 are more protective overall than the relevant provisions
in the vinyl chloride standard. Further, the provisions of
Sec. 1910.120, which require development of a broad program to
appropriately respond to any potential emergency situation, may be
viewed as giving more flexibility to employers to tailor and implement
effective comprehensive emergency-response programs to suit their
needs. Key provisions in Sec. 1910.120(q) that would apply where there
is a potential emergency associated with the release of vinyl chloride
address the following: Development and implementation of an emergency
response plan, paragraph (q)(1); elements required to be included in
the emergency response plan, paragraph (q)(2); procedures for handling
emergency response, paragraph (q)(3); use of skilled support personnel,
paragraph (q)(4); use of specialist employees, paragraph (q)(5);
training of emergency personnel, paragraph (q)(6), (7), and (8);
medical surveillance and consultation for emergency-response personnel,
paragraph (q)(9); use of chemical protective clothing, paragraph
(q)(10); and procedures for post-emergency-response operations,
paragraph (q)(11).
OSHA believes, therefore, that deletion of Sec. 1910.1017(g)(5) (i)
and (ii), in favor of Sec. 1910.120, will not result in an increased
risk to the safety or health of employees engaged in vinyl chloride
emergency response operations. The Agency solicits comment on the
question of the sufficiency of Sec. 1910.120 to address the protection
of vinyl chloride emergency response employees if, as proposed here,
the emergency response provisions currently in the vinyl chloride
standard are deleted.
P. Inorganic Arsenic (Sec. 1910.1018)
OSHA is proposing to revise the existing medical surveillance
requirements in paragraph (n) of 29 CFR 1910.1018, that address
inorganic arsenic, with respect to sputum-cytology examinations and
chest x-rays. The requirement in paragraph (n)(2)(ii)(C) of
Sec. 1910.1018 that provides for a semi-annual sputum-cytology
examination for employees 45 years of age or older or with 10 or more
years of exposure over the action level is proposed to be deleted.
Sputum-cytology examination was included originally under medical
surveillance programs for arsenic workers based on OSHA's belief that
such examinations were useful in screening for lung cancer.
In reevaluating this provision, the Agency has found no studies
that address the efficacy of sputum-cytology examinations as a
screening tool for lung cancer for workers specifically exposed to
inorganic arsenic. Two randomized controlled studies [Exs. 1-1, 1-2],
however, were evaluated with respect to the benefit of sputum-cytology
examinations as a screening tool for lung cancer in another high-risk
group, namely male smokers 45 years of age and older. The two studies
included the Johns Hopkins Lung Project [Ex. 1-3] and the Memorial
Sloan-Kettering Lung Project [Ex. 1-4], both part of the National
Cancer Institute Cooperative Early Lung Cancer Detection Program.
Together, the studies included 20,427 male smokers. These men were
assigned at random to a dual-screen group (in which subjects underwent
an annual chest radiograph, and sputum-cytologic study every 4 months)
or to a single-screen group (in which annual chest radiographic
screening was performed).
For both studies, there were no significant differences between the
dual-screen and single-screen groups in the total number of lung-cancer
cases, the number of late-stage lung-cancer cases, the number of
resectable lung cancers, 5 year (Sloan Kettering) and 8 year (Johns
Hopkins) survival rates and the number of lung-cancer deaths.
Therefore, sputum cytology did not add any benefit to a lung cancer
screening program that already included annual chest x-rays.
False-positive sputum-cytology results can be as high as 10 percent
in patients with pulmonary infections and bronchial asthma [Ex. 1-5].
False positive results can lead to extensive testing, costs, and
anxiety. A positive sputum-cytology examination, with a negative chest
x-ray, is usually followed by an examination of the oral cavity, the
pharynx, and the larynx by both direct visualization and flexible,
fiber-optic laryngoscopy. If this examination is negative, then the
lower respiratory tract is visualized by flexible fiber-optic
bronchoscopy; bronchial washings and biopsy are often included. In
addition, imaging studies may be done, including computed tomography
(CT scan) and magnetic-resonance imaging (MRI). The more invasive of
these procedures have inherent risks, including death [Ex. 1-6].
The American Cancer Society's recommendations for early detection
of cancer in asymptomatic persons do not include the use of sputum-
cytology examinations [Ex. 1-7]. The Society's decision in this regard
was based on the lack of epidemiological evidence that would support
the use of sputum-cytology screening, and the risks and costs
associated with false positive exams [Ex. 1-8]. Therefore, since
available data do not indicate that sputum-cytology examination adds
any benefit to a lung-cancer screening program that already includes
annual chest x-rays, and since false-positive results can lead to
unnecessary and harmful medical follow-up procedures, OSHA is proposing
that sputum-cytology examinations be deleted from the medical-
surveillance requirements of the inorganic arsenic standard.
OSHA solicits comments on these conclusions with respect to the
value of sputum-cytology exams, and requests submission of other data
and views that may support or dispute the Agency's findings and
conclusions.
Exhibits
1-1. Strauss GM, et al. Chest x-ray screening improves outcome
in lung cancer: A reappraisal of randomized trials on lung cancer
screening. Chest 107:270S-279S, June 1995.
1-2. Berlin NI, et al. The National Cancer Institute cooperative
early lung cancer detection program. American Review of Respiratory
Disease 130:545-49, 1984.
1-3. Tockman M. Survival and mortality from lung cancer in a
screened population: The Johns Hopkins study. Chest 89(suppl):324S-
25S, 1986.
1-4. Melamed MR, et al. Screening for early lung cancer: Results
of the Memorial Sloan-Kettering Study in New York. Chest 86:44-53,
1984.
1-5. Benpassat J, et al. Predictive value of sputum cytology.
Thorax 42:165-169, 1987.
1-6. Credle WF, et al. Complications of fiber optic
bronchoscopy. American Review of Respiratory Disease 109:67-72,
1974.
1-7. Holleb AI, et al. American Cancer Society Textbook of
Clinical Oncology, p. 155, American Cancer Society, 1991.
1-8. Holleb AI, et al. American Cancer Society Textbook of
Clinical Oncology, p. 168-170, American Cancer Society, 1991.
OSHA is also proposing to revise the requirement in paragraph
(n)(3)(ii) of Sec. 1910.1018 of the inorganic arsenic standard, that
provides for a semiannual chest x-ray for employees who are 45 years of
age or older or who have 10 or more years of arsenic exposure over the
action level. OSHA is proposing that the required frequency of chest x-
ray for these employees be changed from
[[Page 37855]]
semiannual to annual. OSHA originally adopted the provision for
semiannual x-rays based on the belief that such semiannual examinations
were valid for screening for lung cancer.
OSHA maintains that it is necessary and appropriate to provide
employees exposed to inorganic arsenic with a medical surveillance
program, including chest x-rays, for the early detection of lung
cancer. However, the Agency recognizes that the efficacy of providing
chest x-rays semiannually for this purpose has never been determined by
a large, randomized, and controlled scientific study.
Two recent randomized controlled studies [Exs. 1-1,1-2], were
conducted on a group at high risk for developing lung cancer (namely,
male smokers 45 years of age and older), and were evaluated with
respect to the utility of periodic x-rays. These studies, which
included the Mayo Lung Project [Ex. 1-9] and the Czechoslovak Study
[Ex.1-10], were designed specifically to assess the efficacy of chest
x-rays in detecting early-stage lung cancer among the members of this
group. The studies compared several outcomes between experimental
groups that were assessed using chest x-rays administered at periodic
intervals (4 months in the Mayo Lung Project and 6 months in the
Czechoslovak Study) and control groups receiving infrequent, sporadic,
or (in some cases) no chest x-rays. (Participants in both the
experimental and control groups were administered chest x-rays at the
beginning of each study to ensure that they had no detectable lung
tumors that would bias the research outcomes.)
These studies found that periodic chest x-rays led to enhanced
detection of early-stage lung cancer and, as a consequence, higher
rates of respectability for this cancer. As demonstrated by a
subsequent analysis of these studies [Ex. 1-11], lung-cancer-specific
survival based on fatality rate (i.e., number of deaths per diagnosed
cases) improved significantly. This analysis also showed that the lower
fatality rate among the experimental groups was not the result of
overdiagnosis for lung cancer or lead-time bias. For the Mayo Lung
Project and the Czechoslovak Study, respectively, fatality rates were
found to be 59% and 78% in the experimental groups, and 72% and 95% in
the control groups of persons diagnosed with lung cancer.
The efficacy of chest x-rays was also demonstrated by analyzing the
outcomes for the few experimental group participants who did not
undergo surgery when diagnosed with early-stage lung cancer, either
because they refused surgery or surgery was contraindicated. This
analysis was part of the research described in Exhibit 1-11, which
combined the outcomes for experimental group participants in the Mayo
Lung Project with similar experimental group participants from two
other groups (the Memorial Sloan-Kettering Project and the Johns
Hopkins Lung Project). The 5 year fatality rate for the nonsurgery
participants was about 90 percent, compared with a 30-percent fatality
rate for those participants who underwent cancer surgery. This
comparison provides strong support for the efficacy of chest x-rays in
detecting early-stage lung cancer and enhancing the survival of those
participants who undergo subsequent surgery for removal of a detected
tumor. Additionally, this comparison indicates that overdiagnosis and
lead-time biases did not contribute significantly to the fatality-rate
differences obtained between the experimental and control groups in the
Mayo Lung Project and Czechoslovak Study.
Based on this discussion, OSHA believes that employees exposed to
inorganic arsenic continue to need medical surveillance to detect lung
cancer, and that chest x-rays are a valid method of detecting lung
cancer. The proposed revision to the standard would reduce the
frequency of chest x-rays from semiannual to annually.
This proposed frequency is based on an analysis described in
Exhibit 1-11 showing that the 5-year fatality rate (about 30-35
percent) for persons diagnosed with lung cancer was the same for the
experimental-group participants in the Mayo Lung Project, which
administered chest x-rays every 4 months, and the experimental-group
participants in the Memorial Sloan-Kettering Project and the Johns
Hopkins Lung Project, which performed chest x-rays once a year. [See
also Exs. 1-12 and 1-13] This analysis demonstrates that fatality rates
did not differ in any practical or statistically significant fashion
across these three major studies. OSHA, therefore, finds that an annual
chest x-ray satisfies the purpose of the medical surveillance program
required under the standard.
In summary, large randomized controlled studies indicate that
semiannual chest radiography screenings show no benefit over annual
screenings. OSHA believes that annual chest radiography screening of
high-risk individuals, including workers exposed to inorganic arsenic,
should continue since epidemiological data support the use of chest x-
rays for detecting early-stage lung cancer; this decision results in
lowering lung cancer fatality rates.
Further, although it is possible that intervals between x-rays for
high-risk workers could be longer than 1 year, the Agency has no data
to demonstrate precisely what other interval would be more appropriate.
OSHA, therefore, believes that an annual x-ray provision is reasonable.
Moreover, if the Agency has erred in this instance, it has done so on
the side of over-protection rather than under-protection, as sanctioned
by the U.S. Supreme Court in Industrial Union Department v. American
Petroleum Institute, 448 U.S. 607 (1980).
OSHA solicits comment on these conclusions with respect to the
value of performing annual x-rays, and requests submission of data and
views that may support or dispute the Agency's findings and
conclusions.
Exhibits
1-1. Strauss GM, et. al. Chest x-ray screening improves outcome
in lung cancer: A reappraisal of randomized trials on lung cancer
screening. Chest 107:270S-279S, June 1995.
1-2. Berlin NI, et. al. The National Cancer Institute
cooperative early lung cancer detection program. American Review of
Respiratory Diseases 130:545-49, 1984.
1-9. Fontana R, et. al. Lung cancer screening: The Mayo Program.
Journal of Occupational Medicine 28:746-50, 1986.
1-10. Fontana R, et. al. Screening for lung cancer, a critique
of the Mayo Lung Project. Cancer 67:1155-64, 1991.
1-11. Kubik A, Polak J. Lung cancer detection: Results of a
randomized prospective study in Czechoslovakia. Cancer 57:2428-37,
1986.
1-12. Kubik A, et. al. Lack of benefit from semi-annual
screening for cancer of the lung: Follow-up report of a randomized
controlled trial on population of high risk males in Czechoslovakia.
International Journal of Cancer 45:26-33, 1990.
1-13. U.S. Preventive Medicine Task Force. Guide to Clinical
Preventive Services: An Assessment of the Effectiveness of 169
Interventions, p. 67-70. Williams & Wilkins, Baltimore, MD, 1989.
Q. Coke Oven Emissions (Sec. 1910.1029)
OSHA is proposing to revise the existing medical surveillance
requirements in 29 CFR 1910.1029, coke oven emissions, with respect to
sputum-cytology examinations and chest x-rays. The requirement in
paragraph (j)(2)(vii) of Sec. 1910.1029 that provides for a semiannual
sputum-cytology examination for employees 45 years of age or older or
with 5 or more years employment in the regulated area is proposed to be
deleted. Sputum-cytology examination was included originally in the
medical surveillance programs for coke oven workers based on OSHA's
belief that such
[[Page 37856]]
examinations were useful in screening for lung cancer. (Note: Much of
the following discussion of sputum-cytology examinations duplicates the
discussion on that topic provided under ``P. Inorganic Arsenic''
above.)
In reevaluating this provision, the Agency found no available
studies that address the efficacy of sputum-cytology examinations as a
screening tool for lung cancer for workers specifically exposed to coke
oven emissions. Two randomized controlled studies [Exs. 1-1, 1-2]
however, were evaluated with respect to the benefit of sputum-cytology
examinations as a screening tool for lung cancer in a high-risk group,
namely male smokers 45 years of age and older. Two of these studies
were the Johns Hopkins Lung Project [Ex. 1-3] and the Memorial Sloan-
Kettering Lung Project [Ex. 1-4], both part of the National Cancer
Institute Cooperative Early Lung Cancer Detection Program. Together,
the studies included 20,427 male smokers. These men were assigned
randomly to a dual-screen group (in which subjects underwent annual
chest radiograph and sputum-cytologic study every four months) or to a
single-screen group (in which annual chest radiographic screening was
performed).
For both studies, there were no significant differences between the
dual-screen and single-screen groups in the total number of lung cancer
cases, the number of late-stage lung cancer cases, the number of
resectable lung cancers, 5 year (Sloan Kettering) and 8 year (Johns
Hopkins) survival rates, and the number of lung cancer deaths.
Therefore, sputum-cytology did not add any benefit to a lung cancer
screening program that already included annual chest x-rays.
False-positive sputum-cytology results can be as high as 10 percent
in patients with pulmonary infections and bronchial asthma [Ex. 1-5].
False positive results can lead to extensive testing, costs, and
anxiety. A positive sputum-cytology examination, with a negative chest
x-ray, is usually followed by an examination of the oral cavity, the
pharynx, and the larynx by both direct visualization and flexible
fiber-optic laryngoscopy. If this is negative, then the lower
respiratory tract is visualized by flexible fiber-optic bronchoscopy;
bronchial washings and biopsy are often included. In addition, imaging
studies may be done, including computed tomography (CT scan) and
magnetic resonance imaging (MRI). The more invasive of these procedures
have inherent risks including death [Ex. 1-6].
The American Cancer Society's recommendations for early detection
of cancer in asymptomatic persons do not include the use of sputum-
cytology examinations [Ex. 1-7]. This decision was based on the lack of
epidemiological evidence that would support the use of sputum-cytology
screening, and the risks and costs associated with false positive exams
[Ex. 1-8].
Therefore, since available data do not indicate that sputum-
cytology examination adds any benefit to a lung cancer screening
program that already includes annual chest x-rays, and since false-
positive results can lead to unnecessary and harmful medical follow-up
procedures, OSHA is proposing that sputum-cytology examinations be
deleted from the medical surveillance requirements of the coke oven
emission standard.
OSHA solicits comment on these conclusions with respect to the
value of sputum-cytology exams, and requests submission of other data
and views that may support or dispute the Agency's findings and
conclusions.
Exhibits
1-1. Strauss GM, et al. Chest x-ray screening improves outcomein
lung cancer: A reappraisal of randomized trials on lung cancer
screening. Chest 107:270S-279S, June 1995.
1-2. Berlin NI, et al. The National Cancer Institute cooperative
early lung cancer detection program. American Review of Respiratory
Disease 130:545-49, 1984.
1-3. Tockman M. Survival and mortality from lung cancer in a
screened population: The Johns Hopkins study. Chest 89(suppl):324S-
25S, 1986.
1-4. Melamed MR, et al. Screening for early lung cancer: results
of the Memorial Sloan-Kettering study in New York. Chest 86:44-53,
1984.
1-5. Benpassat J, et al. Predictive value of sputum cytology.
Thorax 42:165-169, 1987.
1-6. Credle WF, et al. Complications of fiber optic
bronchoscopy. American Review of Respiratory Disease 109:67-72,
1974.
1-7. Holleb AI, et al. American Cancer Society Textbook of
Clinical Oncology, p. 155, American Cancer Society, 1991.
1-8. Holleb AI, et al. American Cancer Society Textbook of
Clinical Oncology, p. 168-170, American Cancer Society, 1991.
The requirement in Sec. 1910.1029, paragraph (j)(3)(ii) of the coke
oven emissions standard, which provides for a semiannual chest x-ray
for employees 45 years of age or older or with 5 or more years
employment in a regulated area, is proposed for revison. OSHA is
proposing that this requirement be revised to require an annual chest
x-ray in the medical surveillance program for the group of employees
noted above. OSHA adopted the provision for semiannual x-rays
originally in the belief that semiannual examinations were valid for
screening for lung cancer.
OSHA maintains that it is necessary and appropriate to provide
coke-oven employees with a medical surveillance program, including
chest x-rays, for the early detection of lung cancer. However, the
Agency recognizes that the efficacy of providing chest x-rays
semiannually for this purpose has never been determined by a large,
randomized, and controlled scientific study.
Two recent randomized controlled studies [Exs. 1-1, 1-2], were
conducted on a group at high risk for developing lung cancer (namely,
male smokers 45 years of age and older), and were evaluated with
respect to the utility of periodic x-rays. Two of these studies,
referred to as the Mayo Lung Project [Ex. 1-9] and the Czechoslovak
Study [Ex. 1-10], were designed specifically to assess the efficacy of
chest x-rays in detecting early-stage lung cancer among the members of
this group. The studies compared several outcomes between experimental
groups that were assessed using chest x-rays administered at periodic
intervals (four months in the Mayo Lung Project and six months in the
Czechoslovak Study) and control groups receiving infrequent, sporadic,
or (in some cases) no chest x-rays. (Participants in both the
experimental and control groups were administered chest x-rays at the
beginning of each study to ensure that they had no detectable lung
tumors that would bias the research outcomes.)
The results of these studies found that periodic chest x-rays led
to enhanced detection of early-stage lung cancer and, as a consequence,
higher rates of resectability for this cancer. As demonstrated by a
subsequent analysis of these studies [Ex. 1-11], lung-cancer-specific
survival based on fatality rate (i.e., number of deaths per diagnosed
cases) improved significantly. This analysis also showed that the lower
fatality rate among the experimental groups was not the result of
overdiagnosis for lung cancer or lead-time bias. For the Mayo Lung
Project and the Czechoslovak Study, respectively, fatality rates were
found to be 59% and 78% in the experimental groups, and 72% and 95% in
the control groups of persons diagnosed with lung cancer.
The efficacy of chest x-rays was also demonstrated by analyzing the
outcomes for the few experimental-group participants who did not
undergo surgery when diagnosed with early-stage lung cancer, either
because they refused surgery or surgery was contraindicated. This
analysis was part of the research described in Exhibit 1-11, which
combined the outcomes for experimental-group participants in the
[[Page 37857]]
Mayo Lung Project with similar experimental-group participants from two
other studies (the Memorial Sloan-Kettering and Johns Hopkins Lung
Projects). The 5-year fatality rate for the nonsurgery participants was
about 90-percent, compared to a 30-percent fatality rate for those
participants who underwent cancer surgery. This comparison provides
strong support for the efficacy of chest x-rays in detecting early-
stage lung cancer and enhancing the survival of those participants who
undergo subsequent surgery for removal of a detected tumor.
Additionally, this comparison indicates that overdiagnosis and lead-
time biases did not contribute significantly to the fatality-rate
differences obtained between the experimental and control groups in the
Mayo Lung Project and Czechoslovak Study.
Based on this discussion, OSHA believes that employees exposed to
coke-oven emissions continue to need medical surveillance to detect
lung cancer, and that chest x-rays are a valid method of detecting lung
cancer. The proposed revision to the standard would reduce the
frequency of chest x-rays from semi-annually to annually.
This proposed frequency is based on an analysis described in
Exhibit 1-11 showing that the 5-year fatality rate (about 30-35
percent) for persons diagnosed with lung cancer was the same for the
experimental-group participants in the Mayo Lung Project, which
administered chest x-rays every four months, and the experimental-group
participants in the Memorial Sloan-Kettering and Johns Hopkins Lung
Projects, which performed chest
x-rays once a year. [see, also, Exs. 1-12, 1-13]. This analysis
demonstrates that fatality rate did not differ in any practical or
statistically-significant fashion across these three major studies.
OSHA, therefore, finds that an annual chest x-ray satisfies the purpose
of the medical surveillance program required under the standard.
In summary, Large randomized controlled studies indicate that semi-
annual chest radiography screenings show no benefit over annual
screenings. OSHA believes that annual chest radiography screening of
high-risk individuals, including coke oven workers, should continue
since epidemiological data support the use of chest x-rays for
detecting early-stage lung cancer; this decision results in lower lung
cancer fatality rates.
Further, although it is possible that intervals between x-rays for
high risk workers could be longer than 1 year, the Agency has no data
to demonstrate precisely what other interval would be more appropriate.
OSHA believes an annual x-ray provision is reasonable. Moreover, if the
Agency has erred in this instance, it has done so on the side of over-
protection rather than under-protection, as sanctioned by the U.S.
Supreme Court in Industrial Union Department v. American Petroleum
Institute, 448 U.S. 607 (1980).
OSHA solicits comment on these conclusions with respect to the
value of performing annual x-rays, and requests submission of data and
views that may support or dispute the Agency's findings and
conclusions.
Exhibits
1-1. Strauss GM, et al. Chest x-ray screening improves outcome
in lung cancer: A reappraisal of randomized trials on lung cancer
screening. Chest 107:270S-279S, June 1995.
1-2. Berlin NI, et al. The National Cancer Institute cooperative
early lung cancer detection program. American Review of Respiratory
Diseases 130:545-49, 1984.
1-9. Fontana R, et al. Lung cancer screening: The Mayo Program.
Journal of Occupational Medicine 28:746-50, 1986.
1-10. Fontana R, et al. Screening for lung cancer, a critique of
the Mayo Lung Project. Cancer 67:1155-64, 1991.
1-11. Kubik A, Polak J. Lung cancer detection: Results of a
randomized prospective study in Czechoslovakia. Cancer 57:2428-37,
1986.
1-12. Kubik A, et al. Lack of benefit from semi-annual screening
for cancer of the lung: Follow-up report of a randomized controlled
trial on population of high risk males in Czechoslovakia.
International Journal of Cancer 45:26-33, 1990.
1-13. U.S. Preventive Medicine Task Force. Guide to Clinical
Preventive Services: An Assessment of the Effectiveness of 169
Interventions, p. 67-70. Williams & Wilkins, Baltimore, MD, 1989.
Amendments to Part 1926
A. Incorporation by Reference (Sec. 1926.31)
Based on its ongoing review of compliance and enforcement
activities and recommendations from its Advisory Committee on
Construction Safety and Health (ACCSH), OSHA is aware that difficulties
have arisen regarding certain provisions of part 1926 that were adopted
under sections 6(a) of the Act. Many of the standards adopted under
section 6(a) were American National Standards Institute (ANSI) or
National Fire Protection Association (NFPA) consensus standards which
were incorporated by reference and contained advisory provisions (e.g.
use the word ``should'' rather than ``shall'').
In the past, OSHA maintained that all standards, regardless of
whether the term ``should'' or ``shall'' is used, created mandatory
compliance responsibilities. Employers consistently challenged this
position on the basis that section 6(a) of the Act only gave OSHA the
authority to adopt ANSI standards verbatim. In ANSI standards, use of
the term ``should'' means that the provision is only advisory.
Therefore, employers maintained that ANSI ``should'' standards could
only be advisory when adopted or incorporated by reference by OSHA
under section 6(a).
Enforcement of ``should'' standards has been denied by the
Occupational Safety and Health Review Commission, and by most of the
appellate courts in which contested cases have been heard. For example,
in Marshall v. Pittsburgh-Des Moines Steel Company, 584 F.2d 638, 643-
44 (1978), the Third Circuit Court of Appeals determined that
``should'' standards were merely advisory because the consensus
organization had reached ``substantial agreement'' that these
provisions be viewed only as recommendations, and not as mandatory
standards.
The courts have also ruled that failure to adopt an ANSI provision
verbatim renders the resulting OSHA Section 6(a) provision invalid and
unenforceable (see Usery v. Kennecott Copper Corporation, 577 F.2d
1113, 1117 (10th Cir. 1977)).
Although the ``should'' standards have not been enforceable in and
of themselves, OSHA has employed them to demonstrate the existence of
``recognized hazards'' under the general duty clause (section 5(a)(1))
of the Act. However, the Review Commission has ruled that, as long as
the ``should'' provision remains in effect as a OSHA standard, OSHA may
not issue a general duty clause citation for the hazard it addresses
(see A. Prokosch & Sons Sheet Metal and Mid Hudson Automatic Sprinkler,
1980 CCH OSHD para.24,840). Based on the fact that OSHA cannot enforce
these provisions either directly or indirectly, the Agency proposes to
revise Sec. 1926.31(a) to clarify that only the mandatory requirements
of incorporated consensus standards are adopted as OSHA standards. The
removal of the advisory provisions will also serve to simplify and
streamline existing part 1926 standards.
In 1984, OSHA conducted a rulemaking for 29 CFR part 1910 (General
Industry Standards) that was similar to the one described above for the
construction standards in part 1926. That is, paragraph (a) of
Sec. 1910.6 was revised to clarify that only the mandatory provisions
of standards incorporated by reference are adopted as OSHA general
industry standards (49 FR 5318).
[[Page 37858]]
Paragraph (a) of Sec. 1926.31 currently provides that ``the
specifications, standards and codes * * * to the extent they are
legally incorporated by reference in this part, have the same force and
effect as other standards in this part.'' OSHA is proposing to add a
sentence at the end of Sec. 1926.31(a) to read as follows: ``Only the
mandatory provisions (that is, provisions containing the word ``shall''
or other mandatory language) of standards incorporated by reference are
adopted as standards under the Occupational Safety and Health Act.''
This amendment will effectively eliminate ``should'' standards
incorporated by reference into part 1926.
B. Medical Services and First Aid (Sec. 1926.50)
Paragraph (d)(1) of Sec. 1926.50 states that ``First-aid supplies
approved by the consulting physician shall be easily accessible when
required.'' Since first-aid kits that are commercially available will
meet the needs of most employers, it is unnecessary for most employers
to have a physician approve the contents of a first-aid kit. However,
if the workplace has unusual hazards or special situations that would
require modification of a commercial first-aid kit, or the development
of a specialized kit, the Agency expects that the employer will provide
these special items. If the employer is unsure whether a commercially
available kit is sufficient, professional advice should be obtained.
Such advice, however, would not be required as a matter of course.
Accordingly, OSHA proposes to revise paragraph (d)(1) of Sec. 1926.50
to eliminate the requirement for physician approval of first-aid
supplies. The Agency believes that this change will allow the employer
more flexibility in meeting the first-aid requirements without
affecting employee safety.
Paragraph (f) of Sec. 1926.50 states that the ``telephone numbers
of the physicians, hospitals, or ambulances shall be conspicuously
posted.'' This outdated requirement places an unnecessary burden on the
employer. Since the 911 emergency number is nearly universal, OSHA
proposes to revise this paragraph to limit the requirement for posting
these numbers to those areas where the 911 emergency number is not
available.
C. Flammable and Combustible Liquids (Sec. 1926.152)
Paragraph (a)(1) of Sec. 1926.152 states that ``only approved
containers and portable tanks shall be used for storage and handling of
flammable and combustible liquids. Approved metal safety cans shall be
used for the handling and use of flammable liquids in quantities
greater than one gallon * * *.'' While approved metal safety cans are
still acceptable, OSHA notes that various nationally recognized testing
laboratories have also approved the use of plastic safety cans for
flammable liquids. OSHA proposes to revise this paragraph to allow the
use of approved plastic safety cans in addition to approved metal
safety cans.
A ``safety can'', by definition, is a container with a capacity of
5 gallons or less that is equipped with a spring-closing lid and spout
cover, a means to relieve internal pressure, and a flash-arresting
screen. The Agency has determined that Department of Transportation
(DOT)-approved containers of 5-gallon capacity or less, that are not
equipped with a spring-closing lid, spout cover and flash-arresting
screen can be used to transport relatively small quantities of
flammable liquids safely. OSHA thus proposes to make DOT-approved
containers of 5-gallon capacity or less also acceptable for the
storage, use, and handling of flammable and combustible liquids.
OSHA is also proposing to revise Sec. 1926.152(a)(1) to allow the
use of the original container for quantities of flammable liquids that
are one gallon or less. Where the original container is available, the
employer may choose to use it, instead of an approved safety can for
quantities of one gallon or less. If the original container is not
available, an approved safety can must be used.
D. Initiation of Explosive Charges--Electric Blasting (Sec. 1926.906)
Paragraph (q) of Sec. 1926.906 states that ``Blasters, when testing
circuits to charged holes, shall use only blasting galvanometers
equipped with a silver chloride cell especially designed for this
purpose.'' This provision specifically requires the use of silver
chloride dry cells as a power source for testing electric blast caps.
By contrast, paragraph (e)(4)(vii) of Sec. 1910.109, Explosives and
blasting agents, states that ``Blasters, when testing circuits to
charged holes, shall use only blasting galvanometers designed for this
purpose'' and does not specifically require the use of silver chloride
cells. In addition, the Mine Safety and Health Administration currently
allows for the use of a blasting galvanometer or other instruments that
are specifically designed for testing blasting circuits (30 CFR CH.1
Sec. 56.6407). Therefore, OSHA proposes to correct this inconsistency
by revising paragraph (q) of Sec. 1926.906 to allow the use of other
types of instruments, in addition to those equipped with silver-
chloride cells, when testing circuits to charged holes.
III. Summary of the Preliminary Economic, Feasibility and Regulatory
Flexibility Analyses
Preliminary Economic Analysis
The Agency is proposing to eliminate a number of provisions in its
standards that are duplicative, unnecessary, or potentially in conflict
with the rules of other Federal agencies. All of the changes OSHA is
proposing to make are expected to benefit the regulated community by
reducing confusion, enhancing utility, and increasing readability. Only
four of the proposed changes, however, have quantifiable economic
benefits. Although the extent to which employers currently comply with
these provisions is not known, economists generally assume full
compliance when assessing the costs of regulations. The same compliance
baseline is also used to evaluate benefits. By eliminating these
``problem'' provisions for its standards, OSHA will lessen the burdens
employers currently experience to comply with them, which will, in
turn, generate cost savings. First Aid Kits
The proposed rule would eliminate the requirements in
Sec. 1910.151(b) and Sec. 1926.50(d)(1) that employers must have first
aid supplies approved by a consulting physician. This requirement does
not apply to all facilities; instead it depends on whether an
infirmary, clinic, or hospital is nearby and would be used by the
employer to treat all injured employees, i.e., the requirement applies
only in cases where no such facilities are in close proximity and the
employer intends to treat first aid injuries on site. Although the
number of establishments meeting these criteria is uncertain, the
Agency believes it is reasonable to assume that 10 percent of
establishments would do so. How the physician is to provide this
consultation is not specified in OSHA's provisions. OSHA assumes that,
at most, five minutes of a physician's time, valued at $100/hr,1
would be required to approve the contents of the first aid kit at these
establishments. For purposes of this analysis, OSHA also assumes that
the physician provides 5 minutes of his or her time at an hourly wage
rate, i.e., at a cost of $8.33.
---------------------------------------------------------------------------
\1\ Opportunity cost as measured by the market price for
occupational physical exams. Agency estimates for the cost of exams
suggest a rate of about $100 an hour.
---------------------------------------------------------------------------
This analysis further assumes that the physician needs
FR Doc. 96-18268 Miscellaneous Changes to General Industry and Construction Standards; Proposed Paperwork Collection, Comment Request for Coke Oven Emissions and Inorganic Arsenic
to approve
the first aid supplies once every 10 years, after which time the
development of new
[[Page 37859]]
kinds of medical supplies and the possibility of new hazards in the
workplace would require a new consultation. The cost of 5 minutes of a
physician's time annualized over 10 years is $1.19.
The Agency estimates that approximately 6.4 million employers fall
under OSHA jurisdiction and would be affected by this change (County
Business Patterns, 1993). Therefore, the annualized cost of satisfying
these provisions is currently estimated to be $761,600 ((6.4 million
x 10%) x $1.19). By eliminating this requirement, OSHA will reduce
this burden, as well as the paperwork burden associated with obtaining
and recording the physician's approval.
Coke Oven Emissions
The proposed revision to Sec. 1910.1029(j) would eliminate the
requirement for semiannual sputum cytology tests and reduce the
required frequency of chest x-rays from semiannual to annual for
workers who are 45 years of age or older or who have 5 or more years of
employment in regulated areas. Regulated areas encompass the coke oven
battery, including topside and its machinery, pushside and its
machinery, coke side and its machinery, and battery ends; the wharf;
the screening station; and the beehive oven and its machinery.
The Inflationary Impact Statement developed for OSHA in support of
Sec. 1910.1029 (Inflationary Impact Statement: Coke Oven Emissions,
1976) estimated total employment in coke ovens at 29,600. The same
analysis estimated that 75 percent of these employees worked in
regulated areas. The 1992 Census of Manufacturers (Industry Series)
indicated total employment in SIC 33121 (Coke Oven and Blast Furnace
Products) at 8,600 and total production manhours at 15.7 million. A
separate Census Industry Series count specific to coke ovens indicates
a total of 11.2 million production manhours, which constitutes
approximately 71 percent of SIC 33121's productive manhours, suggesting
a total employment count in coke ovens of 6,135.
Assuming that the proportion of coke oven employees in regulated
areas has remained constant, approximately 4,600 employees work in
regulated areas at the present time. Approximately 30 percent of the
workforce in 1994 was over 45 years of age (BLS data presented in
Statistical Abstract of the United States, 1995, p. 402). Turnover
rates in SIC 33, which includes coke ovens, are estimated at 5 percent
annually (National Occupational Exposure Survey: Analysis of Management
Interview Responses, 1988). A simple probability calculation suggests
that approximately 77 percent of the regulated area workforce will have
been exposed to coke oven emissions for 5 years or more.2
Adjusting this percentage to reflect the assumption that 30 percent of
employees are over 45 years of age results in an estimate of 84 percent
3 of coke oven employees (3,864 workers) potentially affected by
the proposed revocation of this requirement.
---------------------------------------------------------------------------
\2\ (1-.05)\5\=.77 This calculation assumes equal probability of
turnover in each year thereafter.
\3\ ((.77) x (1-.30))+(.30)=.84 All other things equal, at least
30 percent of those with 5 or more years of exposure would be over
45.
---------------------------------------------------------------------------
1994 data obtained from the Physician Payment Review Commission (e-
mail from Christopher Hogan, PPRC, to Tom Mockler, OSHA) indicate a
national average x-ray charge of $54.40 and an average lab charge for
cytology examination of bodily fluids of $51.90. There is also the
potential for an additional charge averaging $19.00 for sputum specimen
collection, but this is assumed to be contained within the fee for a
medical exam. Therefore the savings for eliminating one chest x-ray and
two sputum cytologies annually would be $158.20 per worker ($54.40 for
one x-ray, plus $103.80 for two sputum cytology tests). For the group
of 3,864 employees, the annual savings would be $611,285.
Inorganic Arsenic
As in the case of the coke oven standard, OSHA is proposing to
eliminate the requirement for sputum cytology and reduce the frequency
of chest x-ray exams from semiannual to annual for workers exposed
above the inorganic arsenic action level of 5 g/m \3\ (29 CFR
1910.1018). Paragraph (n) of Sec. 1910.1018 currently requires
employees exposed above the action level for 30 days per year to
receive these medical surveillance elements semi-annually if they are
45 years of age or older, or if they have had more than 10 years of
exposure above the action level.
The Federal Register notice for the inorganic arsenic rulemaking
[(May 5, 1978), p. 19585] indicated that of 660,000 workers exposed,
7,400 were exposed above 4 g/m \3\, i.e., close to or above
the action level. Although arsenic uses and related exposures have
shifted over time, the level of inorganic arsenic use in the U.S.
appears to be approximately the same as it was at the time of the
original rulemaking 4. Therefore, for the purposes of this
analysis, the Agency assumes that the exposed population size is also
unchanged.
---------------------------------------------------------------------------
\4\ Based on the estimated level of raw arsenic trioxide
consumed in U.S. (Arsenic: Industrial, Biomedical, Environmental
Perspectives, 1983, p. 7; Bureau of Mines, Mineral Commodity
Summary, 1995).
---------------------------------------------------------------------------
At the time of the original rulemaking, the Inflationary Impact
Statement (Inflationary Impact Statement: Inorganic Arsenic, 1976)
estimated that 50% of employees above the action level would need the
semi-annual exams, based on OSHA's analysis of age, job tenure and
turnover. Applying the same assumptions, the Agency estimates that
approximately 3,700 workers would be affected by the proposed revisoin
to this provision. This change will eliminate the need for testing
valued at $158.20 (see the explanation above for coke ovens for cost
details) for 3,700 employees, for an annual savings of $584,340.
Pulp and Paper
The existing pulp and paper standard, Sec. 1910.261, contains
paragraph (b)(5), ``vessel entering'', which states:
Lifelines and safety harness shall be worn by anyone entering
closed vessels, tanks, chip bins, and similar equipment, and a
person shall be stationed outside in a position to handle the line
and to summon assistance in the case of emergency.
Paragraph (b)(5) also prescribes other safety precautions applying to
similar confined spaces in pulp and paper mills.
OSHA proposes to eliminate these specific separate requirements for
confined space entry in pulp and paper mills, and instead reference
Sec. 1910.146, OSHA's generic confined spaces standard. In other words,
employers in the pulp and paper industry will no longer have to comply
with Sec. 1910.261(b)(5), but with Sec. 1910.146. Section 1910.146
requires that employers assess the hazards of their confined spaces and
employ the appropriate safety precautions to deal with the relevant
existing or potential hazard. Although Sec. 1910.146 may require
employers to complete additional checklists, conduct training, and plan
for rescue, depending on the hazard present, employers will in many
cases no longer need to require employees to wear lifelines or provide
for outside ``attendants'' 5.
---------------------------------------------------------------------------
\5\ For example, Sec. 1910.146(c)(5) indicates that if an
employer can certify that ventilation alone can reliably control
atmospheric hazards in a space, and that is the only hazard posed by
the space, they are exempt from many requirements of the standard,
including the need for an outside attendant. Similarly, in
Sec. 1910.146(k)(3), employers are expressly exempt from using a
lifeline if such usage is either valueless or counterproductive from
a safety standpoint.
---------------------------------------------------------------------------
[[Page 37860]]
The costs of complying with Sec. 1910.146 in the pulp and paper
industry were included in OSHA's supporting Regulatory Impact Analysis
(Final Regulatory Impact Analysis and Regulatory Flexibility Analysis
of the Final Permit-Required Confined Spaces Standard, December 1992].
They were estimated to be approximately $4 million. No economic or
technological feasibility problems were indicated.
By deleting the more rigid confined space requirements of the pulp
and paper industry-specific standard and requiring employers to comply
with a more performance-oriented requirement for attendants and
lifelines, OSHA is simultaneously relieving a burden and enhancing
safety. Based on the underlying analysis used by OSHA in producing the
RIA for Sec. 1910.146, a comparison of the costs associated with the
requirement that an attendant be present (Sec. 1910.261(b)(5)) with the
more flexible requirements in Sec. 1910.146 indicates a savings to
employers of approximately 450,000 manhours annually. Given the hourly
compensation rate of $17 used in the RIA, this represents an annual
savings of $7.7 million.
In summary, by revoking these four unnecessary or duplicative
requirements, the Agency is reducing annual employer burdens related to
first aid kits ($761,600), medical surveillance for coke oven emissions
($611,285) and inorganic arsenic workers ($584,340), and confined space
entry in pulp and paper mills ($7.7 million), for a total annualized
employer savings of $9,656,625.
Technological Feasibility
OSHA could not identify any requirement in the proposed revision
and modification of OSHA standards that raises technological
feasibility problems for employers. OSHA, therefore, has preliminarily
concluded that technological feasibility is not an issue for the
proposed changes in the standards.
IV. Regulatory Flexibility Certification
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.), as
amended, requires that the Agency examine regulatory actions to
determine if they would have a significant economic impact on a
substantial number of small entities. As indicated elsewhere in this
analysis, these modifications to existing regulations are expected to
reduce the regulatory burden on all affected employers, large and
small. For that reason, the Agency hereby certifies that these changes
will not have a significant economic impact on a substantial number of
small entities.
V. Environmental Assessment
The proposed rules have been reviewed in accordance with the
requirements of the National Environmental Policy Act (NEPA) of 1969
(42 U.S.C. 4321 et seq.), the regulations of the Council of
Environmental Quality (CEQ) (40 CFR part 1500), and DOL NEPA procedures
(29 CFR part 11). As a result of this review, OSHA has concluded that
the rules will have no significant environmental impact.
VI. International Trade
This proposed revision and revocation of OSHA standards is not
likely to have a significant effect on international trade, since the
changes involve the revocation of obsolete provisions, consolidation of
repetitious provisions, and clarification of confusing language.
VII. Paperwork Reduction Act
Information Collection Requirements
As required by the Paperwork Reduction Act of 1995, this notice
serves two purposes: (1) Solicit public comment on the changes that are
proposed in this rule pertaining to the Inorganic Arsenic and the Coke
Oven Emissions standards and (2) solicit public comment on the existing
Inorganic Arsenic and Coke Oven Emissions information collection
requests for their extension.
The Paperwork Reduction Act of 1995, 44 U.S.C. 3507(d) and 5 CFR
1320.11 require Federal agencies to submit collections of information
contained in proposed rules for public comment in the Federal Register
to the Office of Management and Budget (OMB) for review. The proposed
rule impacts two active Information Collection Requests: Inorganic
Arsenic (OMB Number 1218-0104) and Coke Oven Emissions (OMB Number
1218-0128).
The title, description, and respondent description of the
information collection are described below with an estimate of the
annual reporting burden. Included in the estimate is the time for
reviewing instructions, gathering and maintaining the data needed, and
completing and reviewing the collection of information. OSHA invites
comments on whether the proposed collection of information:
1. Ensures that the collection of information is necessary for the
proper performance of the functions of OSHA, including whether the
information will have practical utility;
2. Estimates the projected burden including the validity of
methodology and assumptions used accurately;
3. Enhances the quality, utility, and clarity of the information to
be collected; and
4. Minimizes the burden of the collection of information on those
who are to respond, including through the use of appropriate automated
electronic, mechanical, or other technological collection techniques,
or other forms ofinformation technology, e.g., permitting electronic
submission of responses.
Title: Miscellaneous Changes to General Industry andConstruction.
Description: The purpose of these standards and their information
collection requirements is to provide protection for employees against
the health effects associated with occupational exposure to coke oven
emissions and inorganic arsenic. These standards require employers to
monitor employee exposure, to provide medical surveillance and to
maintain employee exposure monitoring and medical records. If exposure
levels are above the standards' Permissible Exposure Levels (PEL), then
employers must establish and implement a written control plan to reduce
exposures below the PELs. Employers are also required to notify OSHA
area offices of regulated areas and changes to regulated areas. The
proposed rule would delete the requirement for employee sputum cytology
exams contained in the medical surveillance provisions of the Coke Oven
Emissions and Inorganic Arsenic Standards. The proposed rule would also
change the frequency of x-rays from semi-annual to annual in these
standards. Description of Respondents: Employers whose employees may be
exposed to coke oven emissions and inorganic arsenic. Estimate of
Burden Hours and Cost: OSHA estimates that the total burden for Coke
Oven Emissions will be 95,060 burden hours, a reduction of 2,945 hours
(from employee medical examinations), at a cost savings of $611,285.
For Inorganic Arsenic, the agency estimates the total burden to be
24,615 burden hours, a reduction of 3,663 hours (from employee medical
examinations), at a cost savings of $584,340. Employee exposure
monitoring and medical records required by both standards must be
maintained for at least 40 years, or for the duration of employment
plus 20 years whichever is longer. The agency has submitted a copy of
the proposed rule to OMB for its review and approval
[[Page 37861]]
of the information collections. Interested persons are requested to
submit comments on the paperwork reduction regarding the proposed
deletion of sputum cytology and frequency of x-rays to the Office of
Information and Regulatory Affairs, Attn: OSHA Desk Officer, OMB, New
Executive Office Building, 725 17th Street NW., Room 10235, Washington,
DC 20503. Comments should also be submitted to the OSHA Docket Office
for this proposal at OSHA Docket Office, Docket Number S-778, U.S.
Department of Labor, Room N2625, 200 Constitution Avenue, NW.,
Washington, DC 20210.
In accordance with 44 U.S.C. 3506(c)(2)(a), this notice also
solicits public comment on the existing Inorganic Arsenic and Coke Oven
Emissions information collection requests for their extension. Persons
interested in commenting on the existing information collection
requirements contained in the Inorganic Arsenic and Coke Oven Emissions
standards are requested to submit comment including suggestions for
reducing burden to the OSHA Docket Office, Docket Number (ICR 96-7
Inorganic Arsenic orICR 96-8 Coke Oven Emissions), U.S. Department of
Labor, Room N2625, 200 Constitution Avenue, NW., Washington, DC 20210.
(Note that this is a different docket number than the Docket for
proposal which poses to remove the sputum cytology and decrease the
frequency of the chest x-rays) Comments submitted in response to this
comment request will be summarized and/or included in the request for
Office of Management and Budget approval of the information collection
request; they will also become a matter of public record.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Avgerage time
Cite reference Total Frequency Total per response Total cost Burden
respondents responses (hours) (hours)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Coke Oven Emissions...................... 22 On occasion.................. 101,977 1.01 $1,363,900 95,060
Inorganic Arsenic........................ 42 On occasion.................. 58,763 1.06 2,017,684 24,615
Total.............................. .............. ............................. 160,740 .............. 3,381,584 119,675
--------------------------------------------------------------------------------------------------------------------------------------------------------
Copies of the referenced information collection requests are
available for inspection and copying in the OSHA Docket Office and will
be mailed immediately to persons who request copies by telephoning
Vivian Allen at (202) 219-8076. For electronic copies of the Coke Oven
Emissions and the Inorganic Arsenic requests, contact the Labor News
Bulletin Board (202) 219-4784, or OSHA WebPage on the internet at
http://www.osha.gov/. Copies of these information collection requests
are also available at the OMB Docket Office.
VIII. Federalism
This proposed revision and revocation of OSHA standards has been
reviewed in accordance with Executive Order 12612 (52 FR 41685, October
30, 1987), regarding Federalism. This Order requires that agencies, to
the extent possible, refrain from limiting State policy options,
consult with States prior to taking any actions which would restrict
State policy actions, and take such actions only when there is clear
constitutional authority and the presence of a problem of national
scope. The Order provides for preemption of State law only if there is
a clear Congressional intent for the Agency to do so. Any such
preemption is to be limited to the extent possible.
Section 18 of the Occupational Safety and Health Act (OSH Act)
expresses Congress' intent to preempt state laws relating to issues on
which Federal OSHA has promulgated occupational safety and health
standards. Under the OSH Act, a State can avoid preemption in issues
covered by Federal standards only if it submits, and obtains Federal
approval of, a plan for the development of such standards and their
enforcement. Occupational safety and health standards developed by such
Plan states must, among other things, be at least as effective in
providing safe and healthful employment and places of employment as the
Federal standards.
The proposed revision and revocation of standards is meant to
reduce the volume and complexity of OSHA standards, and to improve
compliance by employers, without diminishing worker safety and health.
Those States which have elected to participate under Section 18 of the
OSH Act are not preempted by this proposal, and will be able to address
any special conditions within the framework of the Federal Act while
ensuring that the State standards are at least as effective as the
Federal standard. State comments are invited on this proposal and will
be duly considered prior to promulgation of a final rule.
IX. Public Participation
Interested persons are requested to submit written data, views, and
arguments concerning this proposal. These comments must be postmarked
by September 20, 1996, and submitted in quadruplicate to the Docket
Office, Docket No. S-778, Room N2624, U.S. Department of Labor,
Occupational Safety and Health Administration, 200 Constitution Ave.,
NW., Washington, DC 20210.
All written comments received within the specified comment period
will be made a part of the record and will be available for public
inspection and copying at the above Docket Office address.
The proposed changes to the Inorganic Arsenic and Coke Oven
Emission standards are issued pursuant to section 6(b)(7) of the
Occupational Safety and Health (OSH) Act. That section does not require
the Agency to hold a public hearing for changes in medical surveillance
requirements.
Under section 6(b)(3) of the OSH Act and 29 CFR 1911.11, interested
persons may request an informal hearing by filing a request for such a
hearing including objections to the proposal which warrant a hearing.
Persons who have objections to the proposal but do not wish to request
an oral hearing, may submit their objections in their comments where
they will be fully considered. The objections and hearing requests
should be submitted in quadruplicate to Mr. Tom Hall, OSHA, U.S. Dept.
of Labor, Rm. N-3647, 200 Constitution Ave. NW., Washington, DC 20210
(tel. 202-219-8619) and must comply with the following conditions:
1. The objection must include the name and address of the objector;
2. The objections must be postmarked by September 20, 1996;
3. The objections must specify with particularity grounds upon
which the objection is based;
4. Each objection must be separately numbered; and
5. The objections must be accompanied by a detailed summary of the
evidence proposed to be adduced at the requested hearing.
The proposed changes to the Inorganic Arsenic and Coke Oven
[[Page 37862]]
Emission standards are issued pursuant to section 6(b)(7) of the
Occupational Safety and Health (OSH) Act. That section does not require
the Agency to hold a public hearing for changes in medical surveillance
requirements.
OSHA recognizes that there may be interested persons who, through
their knowledge of safety or health or their experience, would wish to
endorse or support the proposed actions set forth in this notice. OSHA
welcomes such supportive comments, including any related information
which may be available, so that the record of this rulemaking will
present a balanced picture of the public response on the issues
involved.
X. State Plan Standards
The States with their own approved occupational safety and health
plans must adopt comparable standards within 6 months of the
publication date of the final standard. These States are: Alaska,
Arizona, California, Connecticut (for State and local government
employees only), Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan,
Minnesota, Nevada, New Mexico, New York (for State and local government
employees only), North Carolina, Oregon, Puerto Rico, South Carolina,
Tennessee, Utah, Vermont, Virgina, Virgin Islands, Washington and
Wyoming. Until such time as State standards are promulgated, Federal
OSHA will provide interim enforcement assistance, as appropriate, in
those States.
List of Subjects:
29 CFR Part 1910:
Business and industry, Occupational safety and health, Hazardous
materials, Fire protection.
29 CFR Part 1926:
Construction industry, Occupational safety and health, Fire
protection, Explosives
XI. Authority
This document was prepared under the direction of Joseph A. Dear,
Assistant Secretary of Labor for Occupational Safety and Health, U.S.
Department of Labor, 200 Constitution Avenue, NW., Washington, DC.
20210.
Accordingly, pursuant to sections 4, 6, and 8 of the Occupational
Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657), section 107 of
the Contract Work Hours and Safety Standards Act (40 U.S.C. 333) and
Secretary of Labor's Order No. 1-90 (55 FR 9033), 29 CFR parts 1910 and
1926 are proposed to be amended as set forth below.
Signed at Washington, DC, this 15 day of July 1996.
Joseph A. Dear,
Assistant Secretary of Labor.
A. It is proposed to amend Part 1910 of 29 CFR as follows:
PART 1910--OCCUPATIONAL SAFETY AND HEALTH STANDARDS [AMENDED]
Subpart H--Hazardous Materials
1. The authority citation for subpart H is revised to read as
follows:
Authority: Secs. 4, 6, and 8 of the Occupational Safety and
Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's
Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR
35736), or 1-90 (55 FR 9033), as applicable; and 29 CFR part 1911.
Sec. 1910.109 Explosives and blasting agents [Amended]
2. Remove the phrase, ``from inhabited buildings, passenger
railways, and public highways and'' from paragraph (c)(1)(vi) of
Sec. 1910.109.
3. Remove the words, ``manufacture and'' from the first sentence in
footnote number 5, of Table H-21, of Sec. 1910.109.
4. In Sec. 1910.109, revise paragraph (d)(1)(iv) to read as
follows:
* * * * *
(d) * * *
(1) * * *
(iv) Blasting caps or electric blasting caps shall not be
transported over the highways on the same vehicles with other
explosives, unless packaged, segregated and transported in accordance
with the Department of Transportation's Hazardous Materials Regulations
(49 CFR parts 177-180).
5. In Sec. 1910.109, revise paragraph (e)(2)(i) to read as follows:
* * * * *
(e) * * *
(2) * * *
(i) Empty containers and paper and fiber packing materials which
have previously contained explosive materials shall be disposed of in a
safe manner, or reused in accordance with the Department of
Transportation's Hazardous Materials Regulations (49 CFR parts 177-
180).
* * * * *
Sec. 1910.110 Storage and handling of liquefied petroleum gases
[Amended]
1. Remove paragraphs (b)(15)(v)-(b)(15)(viii) of Sec. 1910.110, and
redesignate paragraph (b)(15)(ix) as (b)(15)(v).
2. Remove paragraphs (c)(2)(ii)-(c)(2)(iv) of Sec. 1910.110, and
redesignate paragraph (c)(2)(i) as (c)(2).
3. Remove and reserve paragraph (e)(10) of Sec. 1910.110.
4. Remove and reserve paragraph (g) of Sec. 1910.110.
Sec. 1910.111 Storage and handling of anhydrous ammonia [Amended]
Remove and reserve paragraphs (f)(7) and (f)(8) of Sec. 1910.111.
Subpart J--General Environmental Controls
1. The authority citation for subpart J continues to read as
follows:
Authority: Secs. 4, 6, and 8 of the Occupational Safety and
Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's
Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR
35736), or 1-90 (55 FR 9033), as applicable.
Sec. 1910.141 Sanitation [Amended]
2. Remove paragraph (a)(2)(i) of Sec. 1910.141 and all paragraph
designations for the definitions within paragraph (a)(2) of
Sec. 1910.141.
Sec. 1910.142 Temporary labor camps [Amended]
3. Remove paragraph (a)(4) of Sec. 1910.142.
Sec. 1910.144 Safety color code for marking physical hazards
[Removed]
4. Remove and reserve Sec. 1910.144.
Subpart K--Medical and First Aid
1. The authority citation for subpart K is revised to read as
follows:
Authority: Secs. 4, 6, and 8 of the Occupational Safety and
Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's
Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR
35736), or 1-90 (55 FR 9033), as applicable, and 29 CFR part 1911.
Sec. 1910.151 Medical Services and first aid [Amended]
2. Revise the final sentence in paragraph (b) of Sec. 1910.151 to
read as follows:
* * * * *
(b) * * * Adequate first aid supplies shall be readily available.
* * * * *
Subpart L--Fire Protection
1. The authority citation for subpart L continues to read as
follows:
Authority: Secs. 4, 6, and 8 of the Occupational Safety and
Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's
Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR
35736), or 1-90 (55 FR 9033), as applicable, and 29 CFR part 1911.
Sec. 1910.156 Fire brigades [Amended]
2. Remove paragraph (f)(2)(iii) of Sec. 1910.156.
[[Page 37863]]
Subpart N--Materials Handling and Storage
1. The authority citation for subpart N is revised to read as
follows:
Authority: Secs. 4, 6, and 8 of the Occupational Safety and
Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's
Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR
35736), or 1-90 (55 FR 9033), as applicable, and 29 CFR part 1911.
Sec. 1910.183 Helicopters [Amended]
2. Remove and reserve paragraph (a) of Sec. 1910.183.
Subpart R--Special Industries
1. The authority citation for subpart R is revised to read as
follows:
Authority: Secs. 4, 6, and 8 of the Occupational Safety and
Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's
Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR
35736), or 1-90 (55 FR 9033), as applicable; and 29 CFR part 1911.
Sec. 1910.261 Pulp, Paper, Paperboard Mills [Amended]
2. Remove the following paragraphs in Sec. 1910.261(a)(3): (ii),
(iv) through (vi), (xi) through (xiii), (xv), (xvii) through (xix),
(xx), (xxii), (xxiv) through (xxvii).
3. Remove and reserve paragraph (a)(3)(ix) of Sec. 1910.261.
4. The following paragraphs in Sec. 1910.261 are redesignated as
follows:
a. Paragraph (a)(3)(iii) as paragraph (a)(3)(ii),
b. Paragraph (a)(3)(vii) as paragraph (a)(3)(iii),
c. Paragraph (a)(3)(viii) as paragraph (a)(3)(iv),
d. Paragraph (a)(3)(x) as paragraph (a)(3)(v),
e. Paragraph (a)(3)(xiv) as paragraph (a)(3)(vi),
f. Paragraph (a)(3)(xvi) as paragraph (a)(3)(vii),
g. Paragraph (a)(3)(xxi) as paragraph (a)(3)(viii),
h. Paragraph (a)(3)(xxiii) as paragraph (a)(3)(ix).
5. Remove paragraphs (b)(1) through (b)(3), (b)(5), and (b)(6) of
Sec. 1910.261.
6. Redesignate paragraph (b)(4) as paragraph (b)(1) and paragraph
(b)(7) as paragraph (b)(2) of Sec. 1910.261.
7. Remove the following paragraphs in Sec. 1910.261(c): (2)(vi),
(2)(vii), (6)(ii), and (7)(ii).
8. Remove and reserve the following paragraphs of Sec. 1910.261(c):
(3)(i), (8)(i), and (11).
9. The following paragraphs in Sec. 1910.261 are redesignated as
follows:
a. Paragraph (c)(2)(viii) as paragraph (c)(2)(vi),
b. Paragraph (c)(6)(i) as paragraph (c)(6),
c. Paragraph (c)7)(i) as paragraph (c)(7).
10. Remove and reserve paragraph (d)(1)(ii) of Sec. 1910.261.
11. Remove and reserve paragraphs (e)(3), (e)(7), and (e)(9) of
Sec. 1910.261.
12. Remove paragraphs (g)(1)(iv) and (g)(2)(i) of Sec. 1910.261.
13. Remove and reserve paragraphs (g)(15)(iv) and (g)(15)(vi) of
Sec. 1910.261.
14. The following paragraphs in Sec. 1910.261 are redesignated as
follows:
a. paragraph (g)(1)(v) to paragraph (g)(1)(iv),
b. paragraph (g)(2)(ii) to paragraph (g)(2)(i),
c. paragraph (g)(2)(iii) to paragraph (g)(2)(ii).
15. Remove and reserve paragraph (h)(2)(iii) of Sec. 1910.261.
16. Remove paragraphs (j)(4)(ii), (j)(5)(iv) and (j)(6)(ii) of
Sec. 1910.261.
17. Remove and reserve paragraphs (j)(1)(iv) and (j)(3) of
Sec. 1910.261.
18. The following paragraphs in Sec. 1910.261 are redesignated as
follows:
a. Paragraph (j)(4)(iii) through paragraph (j)(4)(vi) as paragraph
(j)(4)(ii) through paragraph (j)(4)(v),
b. Paragraph (j)(6)(iii) as paragraph (j)(6)(ii).
19. Remove paragraph (k)(2)(i) of Sec. 1910.261, and redesignate
paragraphs (k)(2)(ii) through (k)(2)(vi) as paragraphs (k)(2)(i)
through (k)(2)(v), respectively.
20. Remove and reserve paragraphs (k)(4) and (k)(16) of
Sec. 1910.261.
21. Remove and reserve paragraphs (m)(2) and (m)(4) of
Sec. 1910.261.
22. Remove paragraphs (m)(5)(i) and (m)(5)(ii) of Sec. 1910.261.
23. Redesignate paragraph (m)(5)(iii) of Sec. 1910.261 as paragraph
(m)(5), and add a heading to paragraph (m)(5) to read as follows:
``Unloading Cars''.
Sec. 1910.262 Textiles [Amended]
24. Remove and reserve paragraphs (c)(3), (c)(4), and (gg) of
Sec. 1910.262.
25. Remove paragraph (c)(8) of Sec. 1910.262 and redesignate
paragraph (c)(9) as paragraph (c)(8).
26. Remove and reserve paragraph (gg) of Sec. 1910.262.
27. Remove paragraphs (ll)(1), (qq)(1), (qq)(2), and (rr) of
Sec. 1910.262.
28. Redesignate paragraph (ll)(2) of Sec. 1910.262 as paragraph
(ll).
Sec. 1910.265 Sawmills [Amended]
29. Remove paragraph (a)(2) of Sec. 1910.265.
30. Redesignate paragraph (a)(1) of Sec. 1910.265 as paragraph (a).
31. Remove and reserve paragraphs (c)(3)(i), (c)(10), (c)(11),
(c)(14), and (c)(16) of Sec. 1910.265.
32. Remove and reserve paragraph (c)(17) of Sec. 1910.265.
33.-34. Remove and reserve paragraph (c)(22) of Sec. 1910.265.
35. Remove paragraph (c)(24)(iv)(a) of Sec. 1910.265 and
redesignate paragraph (c)(24)(iv)(b) as paragraph (c)(24)(iv)(a).
36. Remove paragraph (c)(24)(iv)(c) of Sec. 1910.265.
37. Remove and reserve paragraphs (c)(26)(i), (c)(30)(vi),
(c)(30)(x), and (e)(3)(ii)(d) of Sec. 1910.265.
38. Remove paragraphs (f)(9), (g), (h), and (i) of Sec. 1910.265.
Sec. 1910.267 Agricultural operations [Removed]
39. Remove and reserve Sec. 1910.267.
Sec. 1910.268 Telecommunications [Amended]
40. Remove and reserve paragraph (f) of Sec. 1910.268.
Subpart Z--Toxic and Hazardous Substances
1. The authority citation for subpart Z is revised to read as
follows:
Authority: Sections 4, 6, and 8 of the Occupational Safety and
Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's
Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR
35736), or 1-90 (55 FR 9033), as applicable; and 29 CFR part 1911.
All of subpart Z issued under sec. 6(b) of the Occupational
Safety and Health Act, except those substances that have exposure
limits listed in Tables Z-1, Z-2, and Z-3 of 29 CFR 1910.1000. The
latter were issued under sec. 6(a) (29 U.S.C. 655(a)).
Section 1910.1018 is also issued under 29 U.S.C. 653.
Sec. 1910.1017 Vinyl chloride. [Amended]
2. In Sec. 1910.1017, remove paragraphs (g)(5)(i) and (g)(5)(ii).
3. Redesignate paragraphs (g)(6) and (g)(7) of Sec. 1910.1017 as
paragraphs (g)(5) and (g)(6), respectively.
Sec. 1910.1018 Inorganic arsenic. [Amended]
4. In Sec. 1910.1018, remove paragraph (n)(2)(ii)(C); redesignate
paragraph (n)(2)(ii)(D) as (n)(2)(ii)(C); revise the reference in
paragraph (n)(3)(i) that reads ``(n)(2)(ii)(A)(B) and (D)'' to read
``(n)(2)(ii)''; and revise paragraph (n)(3)(ii) to read as follows:
* * * * *
(n) * * *
(3) * * *
(ii) ``The employer shall provide the examinations specified in
paragraphs (n)(2)(i) and (n)(2)(ii)(B) and (C) of this section at least
semi-annually, and the x-ray requirement specified in paragraph
(n)(2)(ii)(A) at least annually, for other covered employees.
* * * * *
5. In Sec. 1910.1018, remove paragraphs (q)(2)(iii)(F),
(q)(2)(iii)(G), and (q)(2)(iii)(H); and insert the word ``and'' after
paragraph (q)(2)(iii)(D).
[[Page 37864]]
6. In Sec. 1910.1018 Appendix A, in the middle of paragraph VI,
revise the sentence beginning ``The medical examination must include *
* *.'' to read as follows: ``The medical examination must include a
medical history, a chest x-ray, a skin examination, and a nasal
examination.'' Remove the sentence which begins ``The cytology exams
are only included * * *.'' from paragraph VI.
7. In Sec. 1910.1018 Appendix C, Section I, General, remove the
words ``(4) A Sputum Cytology examination;'' redesignate paragraph (5)
as paragraph (4); and remove the entire section entitled ``III. Sputum
Cytology.''
Sec. 1910.1029 Coke oven emissions. [Amended]
8. In Sec. 1910.1029, remove paragraph (j)(2)(vii) and redesignate
paragraph (j)(2)(viii) as paragraph (j)(2)(vii).
9. In paragraph (j)(3)(i) 0f Sec. 1910.1029, the reference
``(j)(2)(i)-(vi)'' is revised to read ``(j)(2)(i) and (j)(2)(iii)-
(vii).''
10. In paragraph (j)(3)(ii) of Sec. 1910.1029, the reference
``(j)(2)(i)-(viii)'' is revised to read ``(j)(2)(i) and (j)(2)(iii)-
(vii).''
11. In paragraph (j)(3)(iii) of Sec. 1910.1029, the reference
``(j)(2)(i)-(viii)'' is revised to read ``(j)(2)(i) and (j)(2)(iii)-
(vii).''
12. In Sec. 1910.1029, redesignate paragraph (j)(3)(iv) as
paragraph (j)(3)(v), and add a new paragraph (j)(3)(iv) to read as
follows:
* * * * *
(j) * * *
(3) * * *
(iv) The employer shall provide the x-ray specified in paragraph
(j)(2)(ii) of this section at least annually for employees covered
under paragraph (j)(3).
13. In Sec. 1910.1029 Appendix A, paragraph VI is revised to read
as follows:
* * * * *
VI. If you work in a regulated area at least 30 days per year,
your employer is required to provide you with a medical examination
every year. The medical examination must include a medical history,
a chest x-ray, pulmonary function test, weight comparison, skin
examination, a urinalysis and a urine cytology exam for early
detection of urinary cancer. The urine cytology exam is only
included in the initial exam until you are either 45 years or older
or have 5 or more years employment in the regulated areas when the
medical exams including this test, but excepting the x-ray exam, are
to be given every six months; under these conditions, you are to be
given an x-ray exam at least once a year. The examining physician
will provide a written opinion to your employer containing the
results of the medical exams. You should also receive a copy of this
opinion.
14. In Sec. 1910.1029 Appendix B, Section II, paragraph A is
revised to read as follows:
A. General
The minimum requirements for the medical examination for coke
oven workers are given in paragraph (j) of the standard. The initial
examination is to be provided to all coke oven workers who work at
least 30 days in the regulated area. The examination includes a
14'' x 17'' posterior-anterior chest x-ray reading and a ILO/UC
rating to assure some standardization of x-ray reading, pulmonary
function tests (FVC and FEV 1.0), weight, urinalysis, skin
examination, and a urinary cytologic examination. These tests are
needed to serve as the baseline for comparing the employee's future
test results. Periodic exams include all the elements of the initial
exams, except that the urine cytologic test is to be performed only
on those employees who are 45 years or older or who have worked for
5 or more years in the regulated area; periodic exams, with the
exception of x-rays, are to be performed semi-annually for this
group instead of annually; for this group, x-rays will continue to
be given at least annually. The examination contents are minimum
requirements; additional tests such as lateral and oblique x-rays or
additional pulmonary function tests may be performed if deemed
necessary.
15. In Sec. 1910.1029 Appendix B, Section II, the paragraphs
entitled ``C. Sputum Cytology,'' are removed. B. It is proposed to
amend part 1926 of 29 CFR as follows:
PART 1926--SAFETY AND HEALTH REGULATIONS FOR CONSTRUCTION
Subpart C--General Safety and Health Standards
1. The authority citation for subpart C is revised to read as
follows:
Authority: Sec. 107, Contract Work Hours and Safety Standards
Act (40 U.S.C. 333); secs. 4, 6, and 8, Occupational Safety and
Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's
Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR
35736), or 1-90 (55 FR 9033), as applicable; 29 CFR part 1911.
Sec. 1926.31 Incorporation by Reference. [Amended]
2. In Sec. 1926.31, revise paragraph (a) to read as follows:
(a) The standards of agencies of the U.S. Government and
organizations which are not agencies of the U.S. Government which are
incorporated by reference in this part, have the same force and effect
as other standards in this part. Only the mandatory provisions (i.e.,
provisions containing the word ``shall'' or other mandatory language)
of standards incorporated by reference are adopted as standards under
the Occupational Safety and Health Act.
Subpart D--Occupational Health and Environmental Controls
1. The authority citation for subpart D is revised to read as
follows:
Authority: Sec. 107, Contract Work Hours and Safety Standards
Act (40 U.S.C. 333); secs. 4, 6, and 8, Occupational Safety and
Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's
Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR
35736), or 1-90 (55 FR 9033), as applicable; 29 CFR part 1911.
Sec. 1926.50 Medical services and first aid [Amended]
2. In Sec. 1926.50, revise paragraph (d)(1) to read as follows:
* * * * *
(d) First-aid supplies shall be easily accessible when required.
* * * * *
3. In Sec. 1926.50, revise paragraph (f) to read as follows:
* * * * *
(f) In areas where 911 is not available, the telephone numbers of
the physicians, hospitals, or ambulances shall be conspicuously posted.
* * * * *
Subpart F--Fire Protection and Prevention
1. The authority citation for subpart F is revised to read as
follows:
Authority: Sec. 107, Contract Work Hours and Safety Standards
Act (40 U.S.C. 333); secs. 4, 6, and 8, Occupational Safety and
Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's
Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR
35736), or 1-90 (55 FR 9033), as applicable; 29 CFR part 1911.
Sec. 1926.152 Flammable and combustible liquids [Amended]
2. In Sec. 1926.152, revise paragraph (a)(1) to read as follows:
(a) * * * (1) Only approved containers and portable tanks shall be
used for storage and handling of flammable and combustible liquids.
Approved safety cans or Department of Transportation approved
containers shall be used for the handling and use of flammable liquids
in quantities of 5 gallons or less, except that this shall not apply to
those flammable liquid materials which are highly viscid (extremely
hard to pour), which may be used and handled in original shipping
containers. For quantities of one gallon or less, the original
container may be used for storage, use, and handling of flammable
liquids.
* * * * *
[[Page 37865]]
Subpart U--Blasting and Use of Explosives
1. The authority citation for subpart U is revised to read as
follows:
Authority: Sec. 107, Contract Work Hours and Safety Standards
Act (40 U.S.C. 333); secs. 4, 6, and 8, Occupational Safety and
Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's
Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR
35736), or 1-90 (55 FR 9033), as applicable; 29 CFR part 1911.
Sec. 1926.906 Initiation of explosive charges--electric blasting
[Amended]
2. In Sec. 1926.906, revise paragraph (q) to read as follows:
* * * * *
(q) Blasters, when testing circuits to charged holes, shall use
only blasting galvanometers or other instruments that are specifically
designed for this purpose.
* * * * *
[FR Doc. 96-18268 Filed 7-19-96; 8:45 am]
BILLING CODE 4510-26-P
Complete official Federal Register PDF
FR Doc. 96-18195 Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; State of Louisiana; Correction of Classification; Approval of the Maintenance Plan; Redesignation of Pointe Coupee Parish to Attainment for Ozone
[Federal Register Volume 61, Number 141 (Monday, July 22, 1996)]
[Proposed Rules]
[Page 37875]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18195]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[LA-34-1-7300b, FRL-5531-5]
Approval and Promulgation of Implementation Plans and Designation
of Areas for Air Quality Planning Purposes; State of Louisiana;
Correction of Classification; Approval of the Maintenance Plan;
Redesignation of Pointe Coupee Parish to Attainment for Ozone
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The EPA is today approving a request from the State of
Louisiana to remove Pointe Coupee Parish, Louisiana from the Baton
Rouge serious ozone nonattainment area and reclassify Pointe Coupee
Parish from serious to marginal. In addition, the EPA is proposing
approval of a request from the State of Louisiana to redesignate Pointe
Coupee to attainment for ozone. On December 20, 1995, the State of
Louisiana submitted a maintenance plan and request to redesignate the
Pointe Coupee Parish ozone nonattainment area to attainment. Under the
Clean Air Act as amended in 1990 (the Act), nonattainment areas may be
redesignated to attainment if sufficient data are available to warrant
the redesignation and the area meets the other Act redesignation
requirements. In this action, the EPA is proposing approval of
Louisiana's redesignation request and maintenance plan because it meets
the maintenance plan and redesignation requirements set forth in the
Act, and the EPA is proposing approval of the 1993 base year emissions
inventory. The approved maintenance plan will become a federally
enforceable part of the State Implementation Plan for Louisiana. Please
see the direct final notice of this action located elsewhere in today's
Federal Register for a detailed description of the redesignation
request and maintenance plan.
DATES: Comments on this proposed rule must be postmarked by August 21,
1996.
ADDRESSES: Comments should be mailed to Thomas H. Diggs, Chief, Air
Planning Section (6PD-L), 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:
Environmental Protection Agency, Region 6, Air Planning Section (6PD-
L), 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733.
Louisiana Department of Environmental Quality, Office of Air Quality,
7290 Bluebonnet Boulevard, Baton Rouge, Louisiana 70810.
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:
Lt. Mick Cote, Air Planning Section (6PD-L), EPA Region 6, telephone
(214) 665-7219.
SUPPLEMENTARY INFORMATION: See the information provided in the Direct
Final rule which is located in the Rules Section of this Federal
Register.
Authority: 42 U.S.C. 7401-7671q.
Dated: June 27, 1996.
Carol M. Browner,
Administrator.
[FR Doc. 96-18195 Filed 7-19-96; 8:45 am]
BILLING CODE 6560-50-M
Complete official Federal Register PDF
FR Doc. 96-18180 National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List
[Federal Register Volume 61, Number 141 (Monday, July 22, 1996)]
[Proposed Rules]
[Pages 37876-37878]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18180]
-----------------------------------------------------------------------
[[Page 37877]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 300
[FRL-5538-8]
National Oil and Hazardous Substances Pollution Contingency Plan;
National Priorities List
Agency: Environmental Protection Agency.
Action: Notice of intent to delete McChord Air Force Base Washrack
Treatment Area from the National Priorities List Update: Request for
comments.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA), Region 10,
announces its intent to delete the McChord Air Force Base Washrack
Treatment Area (Washrack Treatment Area) Site from the National
Priorities List (NPL) and requests public comment on this proposed
action. The NPL constitutes Appendix B of 40 CFR part 300 which is the
National Oil and Hazardous Substances Pollution Contingency Plan (NCP),
which EPA promulgated pursuant to Section 105 of the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA) of
1980, as amended. EPA and the State of Washington Department of Ecology
(Ecology) have determined that all appropriate remedial response to the
extent practicable has been taken and that the Site poses no
significant threat to public health or the environment. Therefore,
further remedial measures pursuant to CERCLA are not appropriate.
DATES: Comments concerning this Site may be submitted on or before
August 21, 1996.
ADDRESSES: Comments may be mailed to: Kathleen Stryker, Environmental
Protection Agency, 1200 Sixth Avenue, Mail Stop: ECL-115, Seattle,
Washington 98101.
Comprehensive information on this Site is available through the
Region 10 public docket which is available for viewing at the McChord
Air Force Base Washrack Treatment Area information repositories at the
following locations:
Pierce County Library, Lakewood Branch, 6300 Wildaire Road SW Lakewood,
WA 98499.
United States Environmental Protection Agency, Region 10 Office of
Environmental Cleanup--Records Center, Attn: Dawn Musgrove, 1200 Sixth
Avenue, Mail Stop, ECL-076, Seattle, Washington 98101.
FOR FURTHER INFORMATION CONTACT: Kathleen Stryker, U.S. EPA Region 10,
1200 Sixth Avenue, Mail Stop: ECL-115, Seattle, Washington 98101, (206)
553-1171.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Introduction
II. NPL Deletion Criteria
III. Deletion Procedures
IV. Basis of Intended Site Deletion
I. Introduction
The Environmental Protection Agency (EPA) Region 10 announces its
intent to delete a site from the National Priorities List (NPL),
Appendix B of the National Oil and Hazardous Substances Contingency
Plan (NCP), 40 CFR part 300, and requests comments on this deletion.
EPA identifies sites on the NPL that appear to present a significant
risk to human health or the environment. As described in
Sec. 300.425(e)(3) of the NCP, sites deleted from the NPL remain
eligible for remedial actions in the unlikely event that conditions at
the site warrant such actions.
EPA plans to delete the McChord Air Force Base Washrack Treatment
Area Site (``Site'') in Tacoma, Washington, from the NPL.
EPA will accept comments on the plan to delete this Site until
August 21, 1996.
Section II of this document explains the criteria for deleting
sites from the NPL. Section III discusses procedures that EPA is using
for this action. Section IV discusses the Washrack Treatment Area Site
and explains how the Site meets the deletion criteria.
II. NPL Deletion Criteria
Section 300.425(e) of the NCP provides that ``releases'' (sites)
may be deleted from, or recategorized on the NPL where no further
response is appropriate. In making a determination to delete a site
from the NPL, EPA shall consider, in consultation with the state,
whether any of the following criteria have been met:
(i) Responsible parties or other parties have implemented all
appropriate response actions required;
(ii) All appropriate responses under CERCLA have been implemented,
and no further action by responsible parties is appropriate, or
(iii) The remedial investigation has shown that the release poses
no significant threat to public health or the environment and,
therefore, taking of remedial measures is not appropriate.
Even if a site is deleted from the NPL, where hazardous substances,
pollutants or contaminants remain at the site above levels that allow
for unlimited use and unrestricted exposure, EPA's policy is that a
subsequent review of the site will be conducted at least every five
years after the initiation of the remedial action at the site to ensure
that the site remains protective of public health and the environment.
In the case of the Washrack Treatment Area Site, hazardous substances
above health-based levels do not remain on the site, therefore,
periodic five-year reviews are not required. In addition, whenever
there is a significant release from a site deleted from the NPL, the
site may be restored to the NPL without the application of the Hazard
Ranking System.
III. Deletion Procedures
The following procedures were used for the intended deletion of
this Site: (1) The Air Force completed all appropriate response actions
required for the site. EPA Region 10 issued a memo to document that no
further active remedial response is necessary at the site thus
qualifying the Site for inclusion on the Superfund Site Construction
Completion List, and a final close out report that documents the
achievement of cleanup goals; (2) Ecology concurred with the proposed
deletion decision; (3) A notice has been published in the local
newspaper and has been distributed to appropriate federal, state, and
local officials and other interested parties announcing the
commencement of a 30-day public comment period on EPA's Notice of
Intent to Delete; and, (4) All relevant documents have been made
available for public review in the local Site information repositories.
Deletion of the Site from the NPL does not itself, create, alter or
revoke any individual rights or obligations. The NPL is designed
primarily for informational purposes to assist Agency management. As
mentioned in Section II of this Notice, 40 CFR 300.425(e)(3) states
that deletion of a site from the NPL does not preclude eligibility for
future response actions.
EPA's Regional Office will accept and evaluate public comments on
EPA's Notice of Intent to Delete before making a final decision. The
Agency will prepare a Responsiveness Summary if any significant public
comments are received.
A deletion occurs when the Regional Administrator places a final
action in the Federal Register. Generally, the NPL will reflect
deletions in the final update following the final action. Public
notices and copies of the Responsiveness Summary will be made available
to local residents by the Regional office.
IV. Basis for Intended Site Deletion
The following site summary provides the Agency's rationale for the
intention to delete this Site from the NPL.
[[Page 37878]]
Site Location and History
McChord Air Force Base (AFB) is an active 4,616-acre military
installation located seven miles south of downtown Tacoma. The Washrack
Treatment Area (WTA), a 22-acre area where airplanes were washed and
drained of fuel, is located within the northern industrial and
operational portion of the base along the western portion of the
instrument runway. The site includes the former washrack (now
inactive), two leach pits (now backfilled), an oil/water separator
(skimmer), storm drainage infiltration ditches (now backfilled) and a
layer of floating fuel on shallow groundwater in the vicinity.
The two Department of Defense (DOD) Installation Restoration
Program (IRP) sites that comprise the WTA (SD-54, the leach pits; and
DP-60, infiltration ditches) were originally identified during the 1982
Phase I record search (CH2MHIll. 1982) conducted by McChord. The phase
two IRP investigation (SAIC, 1985) measured low level organic
contamination at Site DP-60 and the adjacent IRP Site SD-54.
As a result of the IRP record search and investigation, further
studies were recommended to confirm contaminant characteristics and
distribution. The EPA designated Site SD-54 as the Washrack Treatment
Area in 1984 and nominated it for inclusion on the NPL. The site was
listed in 1987. In 1989 the Air Force entered into a three party
Federal Facilities Agreement (FFA) with Region X of the EPA and Ecology
for conducting an investigation and cleanup of contaminants posing an
unacceptable risk to human health and the environment.
A remedial investigation, which was completed in 1992, investigated
source areas for the floating fuel and evaluated the nature and extent
of contamination in all potentially affected media. Based on evaluation
of the RI and the baseline risk assessment, the EPA determined and
documented in the Record of Decision (ROD) for the WTA that no remedial
action under CERCLA was necessary for soil, surface water or sediment
to ensure protection of human health and the environment. The ROD
selected passive removal of the floating fuel to address the
unacceptable risk posed by benzene associated with the floating fuel
layer, and monitoring to evaluate the need for remediation of the
residual fuel in the soil.
A remedial design pilot study for recovery of the floating fuel or
Non-Aqueous Phase Liquids (NAPL) was performed in 1993 and 1994 to
determine if the layer of floating fuel could be removed. The NAPL
Pilot Test Study (EA Engineering, 1994) concluded that passive removal
of the fuel was not feasible due to the small amount of fuel present
and that original estimates of fuel available for recovery were
overestimates. The study also concluded that the soil was not a
significant continuing source of contamination to groundwater and that
there is an active population of bacteria present in the soil capable
of naturally degrading the petroleum.
In light of the findings of the Pilot Study an Explanation of
Significant Differences (ESD) was prepared. The ESD described the
results of the pilot study and the changes that were made to the ROD as
a result. The ESD changed the final remedy to a combination of natural
attenuation and long-term monitoring of the groundwater. Natural
attenuation consists in part of allowing the hydrocarbons in the
shallow groundwater to be consumed by the naturally occurring bacteria
present at the site and to allow the lighter portions of the
hydrocarbons to volatilize. The shallow groundwater below the floating
fuel would be monitored, as well as the shallow groundwater up- and
down gradient of the floating fuel.
The installation of one test trench and ten test pit observation
wells as part of the pilot test for the passive removal of the floating
fuel constituted the only active remedial action that occurred at the
site. EPA concurred in a March 1995 addendum to the ROD that no further
active remedial response under CERCLA is necessary at the WTA. This
addendum served to signify construction completion.
Eleven rounds of groundwater samples have been collected at the
floating fuel area since September 1990. All of the groundwater samples
were analyzed for the six compounds for which Remedial Action
Objectives (RAOs) were established in the ROD. With the exception of
total petroleum hydrocarbons (TPH), levels of these compounds detected
in the seven rounds conducted since completion of the ROD have been
consistently below the RAOs. Semi-annual monitoring reports conducted
since the ROD for the WTA are available in the site repository.
Public Participation
Community input has been sought by McChord Air Force Base
throughout the cleanup process for the Site. Community relations
activities have included public meetings prior to the signing of the
ROD, several public notices in local newspapers, and routine
publication of progress fact sheets. A copy of the Deletion Docket can
be reviewed by the public at the Pierce County Library, Lakewood Branch
or the EPA Region 10 Superfund Records Center. The Deletion Docket
includes this Notice, the ROD, ESD, Remedial Action Construction
Report, Memo documenting that no further remedial action is necessary,
and Final Site Close-Out Report. EPA Region 10 will also announce the
availability of the Deletion Docket for public review in a local
newspaper and informational fact sheet.
One of the three criteria for deletion specifies that EPA may
delete a site from the NPL if ``responsible parties or other persons
have implemented all appropriate response actions required''. EPA, with
the concurrence of Ecology, believes that this criterion for deletion
has been met. Ground water data from the Site confirm that the ROD
cleanup goals have been achieved. It is concluded that there is no
significant threat to human health or the environment and, therefore,
no further remedial action is necessary. Subsequently, EPA is proposing
deletion of this Site from the NPL. Documents supporting this action
are available from the docket.
Dated: July 8, 1996.
C. Findley,
Acting Regional Administrator, Region 10.
[FR Doc. 96-18180 Filed 7-19-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-18138 Americans With Disabilities Act Accessibility Guidelines for Buildings and Facilities; Children's Facilities AGENCIES: Architectural and Transportation Barriers Compliance Board and Department of Justice.
[Federal Register Volume 61, Number 141 (Monday, July 22, 1996)]
[Proposed Rules]
[Pages 37964-37977]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18138]
[[Page 37963]]
_______________________________________________________________________
Part II
Department of Justice
Office of the Attorney General
28 CFR Part 38
Architectural and Transportation Barriers Compliance Board
36 CFR Part 1191
_______________________________________________________________________
Americans With Disabilities Act Accessibility Guidelines for Buildings
and Facilities; Children's Facilities; Proposed Rule
Federal Register / Vol. 61, No. 141 / Monday, July 22, 1996 /
Proposed Rules
[[Page 37964]]
DEPARTMENT OF JUSTICE
Office of the Attorney General
28 CFR Part 38
[Order No. 2042-96]
Architectural and Transportation Barriers Compliance Board
36 CFR Part 1191
[Docket No. 94-2]
RIN 3014-AA17
Americans With Disabilities Act Accessibility Guidelines for
Buildings and Facilities; Children's Facilities
AGENCIES: Architectural and Transportation Barriers Compliance Board
and Department of Justice.
ACTION: Joint notice of proposed rulemaking.
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SUMMARY: The Architectural and Transportation Barriers Compliance Board
(Access Board) proposes to amend the Americans with Disabilities Act
Accessibility Guidelines (ADAAG) by adding a special application
section for children's facilities. The section contains guidelines
based on children's dimensions and anthropometrics for newly
constructed and altered children's facilities. The section would ensure
that newly constructed and altered children's facilities are readily
accessible to and usable by children with disabilities.
The Department of Justice proposes to amend its regulations
implementing the Americans with Disabilities Act (ADA) by adding to its
Standards for Accessible Design the special application section for
children's facilities proposed by the Access Board.
DATES: Comments should be received by October 21, 1996. Comments
received after this date will be considered to the extent practicable.
ADDRESSES: Comments should be sent to the Office of Technical and
Information Services, Architectural and Transportation Barriers
Compliance Board, 1331 F Street NW., suite 1000, Washington, DC 20004-
1111. The Access Board will provide copies of all comments received to
the Department of Justice. Comments will be available for inspection at
the above address from 9:00 a.m. to 5:00 p.m. on regular business days.
For information about availability of copies and electronic access, see
the beginning of SUPPLEMENTARY INFORMATION.
FOR FURTHER INFORMATION CONTACT: Access Board: Marsha K. Mazz, Office
of Technical and Information Services, Architectural and Transportation
Barriers Compliance Board, 1331 F Street NW, suite 1000, Washington, DC
20004-1111. Telephone (202) 272-5434 ext. 21 or (800) 872-2253 ext. 21
(voice), and (202) 272-5449 (TTY) or (800) 993-2822 (TTY).
Department of Justice: John L. Wodatch, the ADA information line,
Disability Rights Section, Civil Rights Division, U.S. Department of
Justice, Washington, DC 20530. Telephone (800) 514-0301 (voice) or
(800) 514-0383 (TTY).
SUPPLEMENTARY INFORMATION:
Availability of Copies and Electronic Access
Single copies of this publication may be obtained at no cost by
calling the Access Board's automated publications order line (202) 272-
5434 or (800) 872-2253, by pressing 1 on the telephone keypad, then 1
again, and requesting publication S25 (Children's Facilities Notice of
Proposed Rulemaking). Persons using a TTY should call (202) 272-5449 or
(800) 993-2822. Please record a name, address, telephone number and
request publication S25. Persons who want a copy in an alternate format
should specify the type of format (audio cassette tape, braille, large
print, or computer disk).
The proposed rule is available on electronic bulletin board at
(202) 272-5448 (Access Board) and (202) 514-6193 (Department of
Justice). This rule is also available on the Internet. It can be
accessed with gopher client software (gopher.usdoj.gov), through other
gopher servers using the University of Minnesota master gopher (under
North America, USA, All, Department of Justice), with World Wide Web
software (http://www.usdoj.gov), or through the White House WWW server
(http://www.whitehouse.gov).
Background
The Access Board is responsible for developing accessibility
guidelines under the ADA to ensure that new construction and
alterations of facilities covered by titles II and III of the Act are
readily accessible to and usable by individuals with
disabilities.1 The Access Board initially issued the Americans
with Disabilities Act Accessibility Guidelines (ADAAG) in 1991 (36 CFR
part 1191, appendix A) and has amended the guidelines four times, most
recently in 1994. See 59 FR 31676 (June 20, 1994). ADAAG consists of
general sections (ADAAG 1 to 4) that apply to all types of buildings
and facilities, and special application sections (ADAAG 5 to 14) that
contain additional requirements for certain types of buildings.2
1 The ADA (42 U.S.C. 12101-12213) is a comprehensive civil
rights law which prohibits discrimination on the basis of
disability. Titles II and III of the ADA require, among other
things, that newly constructed and altered State and local
government buildings, places of public accommodation, and commercial
facilities be readily accessible to and usable by individuals with
disabilities.
2 The special application sections cover the following buildings
and facilities: restaurants and cafeterias (ADAAG 5); medical care
facilities (ADAAG 6); business, mercantile and civic (ADAAG 7);
libraries (ADAAG 8); transient lodging (ADAAG 9); transportation
facilities (ADAAG 10); judicial, legislative, and regulatory
facilities (ADAAG 11); detention and correctional facilities (ADAAG
12); accessible residential housing (ADAAG 13); and public rights-
of-way (ADAAG 14).
---------------------------------------------------------------------------
Under the ADA, the Department of Justice is responsible for issuing
regulations to implement titles II and III of the Act. The Department
of Transportation is responsible for issuing regulations to implement
the transportation provisions of titles II and III of the ADA. The
regulations issued by the Department of Justice and Department of
Transportation must include accessibility standards for newly
constructed and altered facilities covered by titles II and III of the
ADA. The standards must be consistent with the accessibility guidelines
issued by the Access Board. The Department of Justice has adopted ADAAG
as its Standards for Accessible Design, published as appendix A to 28
CFR part 36; and the Department of Transportation has also adopted
ADAAG as its accessibility standards, published at appendix A to 49 CFR
part 37.3
\3\ The Department of Justice's and Department of
Transportation's regulations currently include ADAAG 1 to 10. On
June 20, 1994, the Department of Justice and Department of
Transportation proposed to add ADAAG 11 to 14 to their regulations.
See 59 FR 31808 and 31818 (June 20, 1994). The Department of Justice
further proposed to move its Standards for Accessible Design from 28
CFR part 36, appendix A to 28 CFR part 37, appendix A. The
Department of Justice subsequently assigned another set of
regulations to 28 CFR part 37 and now proposes to move its standards
to 28 CFR part 38, appendix A.
---------------------------------------------------------------------------
The Access Board proposes to add a new special application section
to ADAAG (section 15) for newly constructed and altered children's
facilities. Section 15 contains design and construction guidelines
based on children's dimensions and anthropometrics. Section 15 does not
address play settings and fixed play equipment for children. These
facilities will be addressed by the Access Board in a separate
rulemaking on recreation facilities.
The Department of Justice proposes to amend its regulations
implementing
[[Page 37965]]
titles II and III of the ADA by adding section 15 to its Standards for
Accessible Design.
Section 15 generally modifies current ADAAG technical requirements
for children's facilities. It does not broaden the application of ADAAG
and applies to those facilities already covered by titles II and III of
the ADA. Section 15 generally does not increase the number of
accessible elements and features required by current ADAAG. For
example, the number of toilet rooms or toilets required to be
accessible by ADAAG is not changed. Rather, where a toilet room is
required to be accessible, and it is constructed according to
children's dimensions and anthropometrics instead of adults', the
applicable technical requirements in section 15 modify those currently
in ADAAG. Other ADAAG sections not specifically referenced in section
15 shall be applied to children's facilities without modification or
addition.
State and local laws and codes, as well as best practices, often
recognize the need for certain facilities to be constructed according
to children's dimensions and anthropometrics, rather than adults'.
Typically, this need occurs where children will be the primary users of
a facility, such as in child care centers and elementary schools. Some
state and local laws and codes either require or recommend the
application of design guidelines specifically suited to serve children.
Those design guidelines may, for example, specify lower mounting
heights for elements used primarily by children such as drinking
fountains, lavatories and toilets. In the absence of mandatory or
recommended design guidelines for children, best practices are often
applied that consider that certain elements in the built environment
should be usable by children rather than adults. With respect to the
design and construction of buildings, the term ``best practices''
generally refers to design criteria or methods of construction that
have been developed over time by designers and builders and that in
their professional judgment and experience are best applied in
situations where no formal guidance (e.g., code or regulation) exists.
While state and local laws and codes may contain guidelines for
children, only a few contain guidelines that address accessibility for
children with disabilities.
Current ADAAG contains specifications that are based on adult
dimensions and anthropometrics. Although ADAAG applies to child care
centers, pre-kindergarten and elementary schools and other children's
facilities, it does not currently contain requirements that
specifically address access for children. Applying specifications that
serve adults to facilities for children may conflict with state and
local codes or best practices that require or recommend the application
of specifications based on children's sizes and dimensions. For
example, a code or best practice may specify a lower seat height for
toilets serving children, while ADAAG specifies a seat height suitable
for adults with disabilities. Alternatives to ADAAG specifications,
such as a lower toilet seat height, may be permitted under ADAAG 2.2
(Equivalent Facilitation). Equivalent facilitation allows departures
from specific requirements so long as greater or equal access is
provided. While equivalent facilitation may provide flexibility in the
use of ADAAG, it does not provide specific guidance in designing
facilities accessible to children. It is clear from technical inquiries
to the Access Board that such guidance is needed in the form of design
guidelines based on children's dimensions and anthropometrics, grasp,
strength, and stamina.
This proposed rule does not create an obligation for covered
entities to construct facilities with elements that are constructed
according to children's dimensions and anthropometrics. The proposed
rule is intended only to meet the expressed need for guidelines and
standards for providing accessibility in buildings and facilities that
a covered entity constructs according to children's dimensions and
anthropometrics.
In 1986, the Access Board issued ``Recommendations for
Accessibility Guidelines to Serve Physically Handicapped Children in
Elementary Schools.'' 4 The report included recommended
modifications or additions to certain sections of the Uniform Federal
Accessibility Standards (UFAS) based on children's sizes. The
recommendations were developed to assist states in designing and
constructing accessible elementary schools. Many states and localities
have applied the Access Board's 1986 children's recommendations to
newly constructed schools serving grades one through six.
---------------------------------------------------------------------------
\4\ A print or microfiche copy of the full report may be ordered
from the National Technical Information Services (NTIS) by writing
to: NTIS, 5285 Port Royal Road, Springfield, VA 22161, or calling
(703) 487-4650. The publication number is PB94-204930, and the cost
for the print copy is $17.20. Free copies of the full report on
computer disk can be ordered from the Access Board. An executive
summary of this report is also available at no cost from the Access
Board.
---------------------------------------------------------------------------
Subsequently, the Access Board sponsored a research project to
study accessibility requirements for children with disabilities using a
variety of facilities. The research project, conducted by the Center
for Accessible Housing (CAH) at North Carolina State University in
Raleigh, North Carolina, resulted in the development of recommendations
for children's access in 1992. The research included a review of codes,
standards and guidelines, ergonomic studies and evaluation literature,
and post-occupancy evaluations of children's facilities. This research
was the basis for the CAH recommended accessibility guidelines for
children's facilities known as ``Recommendations for Accessibility
Standards for Children's Environments'' (also referred to as the CAH
``recommendations'' or ``study'' in this notice).5 The CAH study
focused on facilities serving pre-kindergarten and elementary school-
aged children and, to a lesser extent, facilities serving infants and
toddlers.
---------------------------------------------------------------------------
\5\ A print or microfiche copy of the report may be ordered from
NTIS. The publication number is PB93-208676, and the cost for the
print copy is $52.00. A copy of the study on computer disk can be
ordered from the Access Board.
---------------------------------------------------------------------------
On February 3, 1993, the Access Board published an advance notice
of proposed rulemaking (ANPRM) in the Federal Register (58 FR 6924).
The ANPRM sought comment on general issues, such as the recommended
scope of these guidelines and the ages or grades that should be
covered. The ANPRM also requested information on standards and
guidelines for children's environments currently in use, building
products and technologies currently available that specifically serve
children, and elements and features unique to children's environments
that may merit specific attention. Approximately 75 comments were
received in response to this notice. Commenters included state and
local departments of education, groups representing children with
disabilities, plumbing fixture manufacturers, individuals, and design
professionals. These comments are further discussed in the section-by-
section analysis that follows. A number of commenters raised
operational or programmatic issues and recommended that the guidelines
address adult supervision of children, including the adult-to-child
ratio, and the provision of personal care and assistance. Under the
ADA, the Access Board is responsible for issuing accessibility
guidelines for buildings and facilities. The Department of Justice, not
the Access Board, has the authority to address programs or services
provided by an entity covered
[[Page 37966]]
by the ADA. Further, many of the program and service issues raised by
commenters to the ANPRM are addressed by federal, state and local law
and regulation.
Section-by-Section Analysis
This section of the preamble contains a concise summary of the
additions which the Access Board is proposing to ADAAG, and a summary
of the Access Board's responses to certain comments received on the
ANPRM. The text of the proposed common rule follows this section.
Paragraphs marked with an asterisk have related, non-mandatory material
in the Appendix.
Question 1: With the exception of additional handrails required on
ramps or stairs (15.4), this rule generally proposes to modify, or
questions whether to modify, current ADAAG provisions when designing
and constructing children's facilities. Considering that facilities
covered by this rule are already subject to the scoping and technical
provisions in current ADAAG, the Access Board and the Department of
Justice are seeking additional information or data that would assist in
estimating the costs and benefits of the proposed rule.
15. Children's Facilities
15.1* Application
Section 15 applies to those facilities constructed according to
children's dimensions and anthropometrics. The ANPRM asked whether the
proposed guidelines for children's facilities should be limited to
facilities where children are the majority user population served. Most
commenters responded that the guidelines should apply broadly to
facilities serving the public, such as libraries, theaters, community
centers, shopping malls, pools, and gymnasiums. Other commenters,
however, recommended that the application of the guidelines should be
limited to those facilities that are specifically designed for use by
children such as educational and child care facilities.
Generally, building codes and best practices specify that elements
and features be provided at heights and locations appropriate for the
primary user population served. Although children are rarely the sole
occupants or users of a facility, codes and best practices often
specify that elements such as drinking fountains, lavatories and toilet
seats be mounted at heights according to children's size and reach when
children are the primary users. Where a facility is constructed to
serve children, section 15 requires that certain elements and features
be readily accessible to and usable by children with disabilities.
Therefore, section 15 applies only where facilities, or portions of
facilities, are constructed according to children's dimensions and
anthropometrics.
The phrase ``constructed according to children's dimensions and
anthropometrics'' means where the construction of a facility reflects
the size and dimensions, reach ranges, level of strength and stamina,
and other characteristics of children, thus rendering such a facility
more usable by children. Facilities constructed that do not reflect
children's characteristics are not covered by section 15.
The ANPRM asked what ages or grades should be covered by the
guidelines. Few comments were received in response to this question.
With respect to age, the comments received covered a broad spectrum of
ages from birth to age 21, with a small majority of the comments
recommending a range of 3 to 13 years of age. Those commenters favoring
criteria based on grades, recommended application of the guidelines to
facilities which serve kindergarten through eighth grade. Additionally,
some commenters stated that pre-schoolers, including toddlers, should
also be covered. However, the age used to define a kindergartner,
preschooler or toddler varied among jurisdictions as did age
requirements for particular grades. These inconsistencies made it
difficult to base the application of the guidelines on grade
classification or other commonly used nomenclature.
The proposed rule is intended to cover facilities which are
constructed according to children's dimensions and anthropometrics for
ages 2 through 12. The dimensions and anthropometrics of children aged
2 and older are reflected in many existing state and local education or
building design guidelines and recommendations. Those requirements
specify that certain elements intended for children's use be designed
and constructed for their use rather than for adult use. With respect
to schools or portions of schools primarily serving children over 12
years of age, most states apply design standards based on adult
dimensions and sizes, rather than children's.
Section 15.1 also specifies that accessible elements and spaces
constructed according to children's dimensions and anthropometrics for
ages 2 through 12 shall be on an accessible route complying with ADAAG
4.3 (Accessible Route), 15.3 (Protruding Objects) and 15.4 (Handrails
at Ramps and Stairs). For example, a children's area in a portion of a
community center may have elements and features constructed primarily
for children such as storage units, toilets, or lavatories. Objects
that project from walls along the accessible route are subject to the
provisions covering protruding objects in section 15.3. Where the
accessible route serving a covered children's area includes a ramp,
section 15.4 specifies that a second set of handrails for children must
be provided. An accessible route complying with this section shall also
be provided where individual elements are positioned at heights or
locations based on children's sizes and dimensions, such as a drinking
fountain in a shopping mall. Additional routes serving the children's
area are not subject to the requirements in this section. A note has
been included in the appendix illustrating the requirements of
accessible routes serving areas and spaces constructed according to
children's dimensions and anthropometrics.
Question 2: Should the requirement for an accessible route
complying with section 15.3 (Protruding Objects) and section 15.4
(Handrails on Ramps and Stairs) apply where only one element is
constructed according to children's dimensions and anthropometrics
(e.g., an accessible drinking fountain at a child's height)? Or, would
it be more appropriate to limit the application of an accessible route
complying with section 15.3 (Protruding Objects) and section 15.4
(Handrails on Ramps and Stairs) to portions of the facility that are
constructed for children? Commenters should consider Questions 5
(protruding objects), 22 (accessible route width), 23 (ramp slope), and
24 (ramp length) when responding.
15.2 Reach Ranges
This section specifies reach ranges for the mounting heights of
elements to be accessible to and usable by children. Such elements
include controls, dispensers, receptacles and other operable equipment
subject to ADAAG 4.27 (Controls and Operating Mechanisms) and storage
elements covered by ADAAG 4.25 (Storage) where they are provided for
use by children. ADAAG currently requires that such elements be
provided within adult reach ranges specified in ADAAG 4.2 (Space
Allowance and Reach Range). The reach ranges proposed in section 15.2
are intended to apply only to those controls and operating mechanisms
and storage elements that are constructed according to children's
dimensions and anthropometrics such as student lockers or controls of
displays in children's
[[Page 37967]]
sections of museums. Elements provided for use by adults rather than
primarily by children are not covered by this section.
Section 15.2.1 modifies the reach range requirements of ADAAG 4.2.
Section 15.2 includes a table that lists three design options: A, B,
and C. These options specify reach ranges according to three age
groups: 2 through 4, 5 through 8, and 9 through 12. Section 15.2.2
requires the application of either A, B, or C. Further, this section
states that selection of A, B, or C should correspond to the age range
of the primary user group served. The term ``should'' is used in this
section to permit discretion where accessible elements may serve more
than one age group of children or where the age range of children does
not correspond to the specific age groups listed in the table.
According to ADAAG 3.4 (General Terminology), the term ``should''
denotes an advisory specification or recommendation.
The table in section 15.2.2 specifies high and low reach ranges for
children according to age: 36 inches (high) and 20 inches (low) for
ages 2 through 4, 40 inches (high) and 18 inches (low) for ages 5
through 8, and 44 inches (high) and 16 inches (low) for ages 9 through
12. Consistent with the CAH recommendations, the reach ranges proposed
in this section are the same for both forward and side reach. The reach
ranges specified in the table to section 15.2.2 are to be applied
instead of the 15 to 48 inch reach range required by ADAAG 4.2.5
(Forward Reach), and the 9 to 54 inch reach range specified by ADAAG
4.2.6 (Side Reach). It should be noted that designing according to the
specifications in A would also satisfy the requirements in B and C. For
example, locating certain accessible storage between 20 inches and 36
inches above the finish floor would be appropriate for A (ages 2
through 4), B (ages 5 through 8), and C (ages 9 through 12), thus
making the storage readily accessible to a broad age range of children.
An accessible element mounted at 44 inches above the finish floor
however, may only be accessible to children age 9 and older.
The CAH study recommended a forward and side reach of 20 inches
minimum and 36 inches maximum for all children. However, since the
ergonomic data evaluated by CAH did not conclusively justify limiting
the reach range of children older than 4 years of age to a 20 inch
minimum and 36 inch maximum, the proposed reach ranges in section 15.2
may be more reflective of the sizes and anthropometrics of the age
range of children considered by this rule. Responses to Question 3
below will aid the Access Board in determining whether to retain the
table as proposed, amend the table, or to specify the reach ranges
recommended in the CAH study for all children, in the final rule.
Question 3: Do the specifications in A, B, and C of the table in
section 15.2 accurately reflect the reach ranges of children (ages 2
through 12) with disabilities? If not, what specifications are
appropriate for children using facilities covered by section 15? Where
possible, responses should include anthropometric data or related
information.
Appropriate reach ranges over obstructions are critical to ensure
the usability of controls and operating mechanisms mounted above or on
counters, lavatories and other fixed elements. Current ADAAG
specifications for forward and side reaches over obstructions are based
on adult dimensions and anthropometrics. ADAAG 4.2.5 (Fig. 5(b))
provides that the maximum forward reach shall be 25 inches deep over an
obstruction. Since the height of reach is reduced as the depth of an
obstruction increases, ADAAG lowers the maximum forward reach from 48
to 44 inches for reaches over an obstruction greater than 20 inches
deep. ADAAG 4.2.6 (Fig. 6(c)) specifies a maximum side reach of 24
inches over an obstruction no higher than 34 inches. Similarly, when an
obstruction is greater than 10 inches in depth, the maximum side reach
is reduced from 54 to 46 inches. CAH evaluated ergonomic data on the
depth of reach of children with disabilities but did not provide
recommendations based on this data. The CAH study did provide a
recommendation for the placement of lavatory faucets, which is
discussed further in the analysis of section 15.8.
Question 4: The Access Board and the Department of Justice request
information or recommendations on each of the following:
(a) the maximum horizontal forward reach over an obstruction for
children ages 2 through 4, 5 through 8, and 9 through 12;
(b) the maximum height of elements mounted over an obstruction
(forward reach) for children ages 2 through 4, 5 through 8, and 9
through 12;
(c) the maximum horizontal side reach over an obstruction for
children ages 2 through 4, 5 through 8, and 9 through 12; and
(d) the maximum height of elements mounted over an obstruction
(side reach) for children ages 2 through 4, 5 through 8, and 9 through
12.
Where possible, commenters should provide anthropometric data or
related information to support their recommendations and, if known,
identify impacts on the design or placement of lavatory faucets,
lockers, and other elements subject to reach requirements. Based on
comments received, the Access Board may specify maximum forward and
side reach ranges over an obstruction in the final rule.
Figures 1 and 2 which are set forth below illustrate the
information sought in (a) through (d) in Question 4.
BILLING CODE 4410-01-P and 8150-01-P
[[Page 37968]]
[GRAPHIC] [TIFF OMITTED] TP22JY96.001
BILLING CODE 4410-01-C and 8150-01-C
15.3 Protruding Objects
This section modifies the current technical requirements in ADAAG
4.4 (Protruding Objects). ADAAG 4.4.1 currently specifies that elements
mounted on walls, such as phones and light fixtures, shall not project
more than 4 inches from the wall surface if the leading edge is above
27 inches from the finish floor. ADAAG 4.4.1 also specifies that free-
standing objects on posts or pylons may overhang 12 inches maximum if
the leading edge is above 27 inches from the finish floor. The cane
sweep of an adult with a vision impairment generally encounters objects
at or below 27 inches. However, a child's stride is shorter, and his or
her cane sweep is typically narrower and lower. Therefore, a child's
cane will not contact such objects at a point that provides effective
warning. According to the CAH recommendations, children using canes can
detect protruding objects up to 12 inches from the ground or floor
surface. This section reduces the 27 inch height specified by ADAAG
4.4.1 to 12 inches.
Under current ADAAG, elements projecting more than 4 inches such as
drinking fountains and telephones may be mounted at heights or with
side partitions so that the leading edge is at or below 27 inches.
Section 15.3 would require that these elements be mounted or have side
partitions so that the leading edge is no more than 12 inches from the
floor. In order to meet this
[[Page 37969]]
requirement, drinking fountains and other elements which require knee
clearance may have to be located in alcoves or be protected by walls,
partitions, or other features.
Question 5: What are the new construction costs associated with
providing walls, partitions, or alcoves for drinking fountains and
other elements that require knee clearance yet must also be within the
12 inch height for effective detection by cane sweep?
15.4 Handrails at Ramps and Stairs
This section addresses handrails on ramps and stairs on the
accessible route serving children's areas covered by section 15. Unlike
most of the provisions proposed in this rule, this section both
modifies current ADAAG specifications and requires an additional
accessible feature. Under section 15.4.1, ramps subject to ADAAG 4.8
(Ramps) and stairs subject to ADAAG 4.9 (Stairs) that serve elements
and spaces constructed according to children's dimensions and
anthropometrics are required to provide a second set of handrails at a
lower height and with a smaller diameter for children. These handrails
are to be provided in addition to the higher handrail required by
current ADAAG. The lower handrails for children are subject to current
specifications for ramp handrails (ADAAG 4.8.5) or stair handrails
(ADAAG 4.9.4), including requirements for a continuous gripping
surface, 12 inch extensions beyond the top and bottom of ramps or
stairs, clear space between handrails and walls of 1\1/2\ inches,
rounded or returned ends, and the level of structural strength
specified in ADAAG 4.26.3.
The second set of handrails required by this section is subject to
mounting height and diameter requirements that are different from those
currently in ADAAG. Section 15.4.2 requires the gripping surface of
this handrail to be mounted between 20 to 28 inches above the ramp
surface or stair nosing. Under current ADAAG, a handrail mounted at 34
to 38 inches must also be provided. Section 15.4.3 specifies that the
gripping surface of the lower handrail shall have a diameter of 1 to
1\1/4\ inches or provide an equivalent gripping surface. Current ADAAG
(4.26.2) requires a diameter of 1\1/4\ to 1\1/2\ inches. The handrail
requirements for section 15 are based on the CAH recommendations and
are similar to requirements or recommendations in California, Illinois,
Michigan, Texas, and Florida.
Consistent with ADAAG, the lower handrail is required to have a
continuous gripping surface. Where handrails at the adult height are
mounted on top of vertical posts, lower handrails required for children
may have to be mounted aside or off-set from such posts so that the
gripping surface of the lower handrail is not interrupted. Handrails,
including lower handrails off-set from vertical supports, may not
reduce the minimum 36 inch clear width required for ramps.
Question 6: The clear space between the upper handrail required by
current ADAAG and the lower handrail proposed in section 15.3 may range
from 16\3/4\ to 4\1/2\ inches. Does this range of vertical distance
between handrails pose any hazard of entrapment? If so, what vertical
distance is narrow enough or is wide enough to prevent entrapment?
Question 7: Is the clear space between the upper and lower
handrails of 4\1/2\ inches sufficient for children to grasp the lower
handrail? If not, what should be the minimum vertical distance between
the upper and lower handrails when one is mounted directly above the
other?
Question 8: Section 15.4.3 specifies a handrail diameter of 1 to
1\1/4\ inches instead of the 1\1/4\ to 1\1/2\ inches required by
current ADAAG. Steel pipe is often used for handrails on ramps and
stairs. In the building industry, pipe size typically refers to the
inside diameter so that a 1\1/2\ inch pipe handrail may have an outside
diameter close to 2 inches. Under this industry practice, certain
handrails specified at 1\1/4\ inches may have an outside diameters up
to 1\5/8\ inches or greater depending on the specifications of the pipe
provided. Is a handrail diameter greater than 1\5/8\ inches usable by
children with disabilities? Should the guidelines specify a maximum
outside diameter of handrails used by children?
15.5 Drinking Fountains and Water Coolers
This section modifies technical requirements for accessible
drinking fountains and water coolers in ADAAG 4.15 (Drinking Fountains
and Water Coolers). Section 15.5 does not increase the number of
accessible drinking fountains or water coolers currently required by
ADAAG. Section 15.5.1 requires that drinking fountains and water
coolers comply with ADAAG 4.15 except for the requirements for spout
height (4.15.2) and clearances (4.15.5), which are modified by this
section.
Section 15.5.2 specifies a maximum spout height of 30 inches
measured from the floor to the spout outlet instead of the 36 inch
maximum specified by current ADAAG. Since children are smaller and
wheelchairs manufactured for children may have seat heights that are
approximately 1 to 2 inches lower than seat heights on adult
wheelchairs, spout heights must be lower than 36 inches above the
floor. The 30 inch spout outlet height is based on the CAH
recommendations.
Section 15.5.3 requires that clear knee space be at least 24 inches
high measured from the floor to the underside of the drinking fountain
and at least 8 inches deep measured from the leading edge of the
drinking fountain. The 24 inch height is based in part on the lower
height typical of children's wheelchairs and is consistent with the CAH
recommendations. A toe clearance at least 12 inches high, measured from
the floor, is also required. According to the CAH study, this higher
toe clearance is necessary for children since their legs are shorter,
resulting in wheelchair footrests that are typically mounted higher
than on adult wheelchairs. The drinking fountain may overlap the clear
floor space no more than 14 inches. This modifies ADAAG 4.15.5, which
requires a 27 inch high minimum knee space, a 9 inch high minimum toe
space, and permits the fountain to overlap the clear floor space 17 to
19 inches.
Question 9: Are drinking fountains currently available that meet
the proposed requirements for a maximum 30 inch spout height, a minimum
24 inch knee clearance, and a minimum 12 inch toe space height when
properly mounted? If not, what are the design or product specifications
that conflict with these proposed requirements, and are there design
solutions which would provide the necessary knee space and spout outlet
height for children? What are the costs of such recommended solutions?
15.6* Water Closets, Toilet Seats, Grab Bars, and Toilet Paper
Dispensers
This section proposes technical specifications for water closets
for children. It does not increase the number of water closets required
to be accessible within toilet rooms and does not modify the
requirement in ADAAG 4.22.4 that accessible toilet rooms have at least
one accessible water closet. This section provides technical
requirements based on children's dimensions to be used instead of the
current provisions in ADAAG 4.16 (Water Closets), which are based on
adult dimensions. Under section 15.1, toilet rooms required to be
accessible by current ADAAG 4.1.3, which are constructed according to
children's dimensions and anthropometrics, would be required to have at
least one water closet complying
[[Page 37970]]
with ADAAG 4.16 as modified by this section.
The specifications proposed in section 15.6 modify ADAAG 4.16
provisions covering water closet centerline (4.16.2), toilet seat
height (4.16.3), grab bars (4.16.4), toilet paper dispensers (4.16.6),
and flush controls (4.16.5). The CAH recommendations, upon which these
proposed specifications are based, note that the requirements
appropriate for water closets vary according to grade or age. Section
15.6 includes a table that lists three options, A, B, and C, which
provide specifications for mounting locations of water closets, toilet
seats, grab bars, and toilet paper dispensers. A, B, and C correspond
to three age groups of children: 2 through 4, 5 through 8, and 9
through 12, respectively. Section 15.6.2 requires the application of
either A, B, or C. Further, this section states that selection of A, B,
or C should correspond to the age range of the primary user group
served by the toilet room. The term ``should'' is used in this section
to permit discretion where toilet rooms may serve more than one age
group of children, or where the age range of children does not
correspond to the specific age groups listed in the table. ADAAG 3.4
(General Terminology) states that the term ``shall'' denotes a
mandatory specification or requirement. The term ``should'' denotes an
advisory specification or recommendation. The application of A, B, or C
is further discussed in an appendix note.
Some of the technical specifications in A, B, and C of the table
overlap. Thus, the application of specifications similar to both A and
B, or B and C, may facilitate access for more than one age group. For
example, a water closet with a centerline at 12 inches, a toilet seat
at 12 inches, grab bars at 20 inches, and a toilet paper dispenser at
14 inches above the finish floor may be appropriate for A (ages 2
through 4) and B (ages 5 through 8). Similarly, a water closet with a
centerline at 15 inches, a toilet seat at 15 inches, grab bars at 25
inches, and a toilet paper dispenser at 17 inches above the finish
floor may be appropriate for B (ages 5 through 8) and C (ages 9 through
12). This section does not require the provision of multiple accessible
fixtures in toilet rooms serving more than one age group. An appendix
note to this section illustrates these examples.
Question 10: Some of the specifications in the table in 15.6.2
allow for overlap in two of the age groups, but do not provide
measurements that would meet the needs of all three age groups. Are
there alternative specifications available which would provide
measurements that would be appropriate for all three age groups? Where
possible, comments should provide a rationale with supporting data.
The table in section 15.6.2 specifies the centerline of water
closets from one side wall or stall partition according to the age
group the water closet is intended to serve: 12 inches for ages 2
through 4, 12 to 15 inches for ages 5 through 8, and 15 to 18 inches
for ages 9 through 12. The proximity of water closets to grab bars
mounted on walls or partitions is critical for safe transfer to and
from mobility aids. These specifications are generally consistent with
the CAH recommendations and recognize that children's reach ranges are
generally shorter than those of adults. Section 15.6.2 modifies ADAAG
4.16.2, which specifies a centerline measurement of 18 inches absolute.
Section 15.6.2 also notes that the centerline requirements in this
section do not apply to water closets in the 36 inch wide alternate
stall permitted in alterations by ADAAG 4.1.6(3)(e)(ii). The 48 inch
wide alternate stall is subject to the centerline locations in 15.6.2
because such stalls do permit side transfer. The use of alternate
stalls is permitted in alterations only where it is technically
infeasible to provide a standard stall or where codes prohibit the
reduction of the number of water closets.
The table in section 15.6.2 provides toilet seat heights according
to the age group the water closet is intended to serve: 11 to 12 inches
for ages 2 through 4, 12 to 15 inches for ages 5 through 8, and 15 to
17 inches for ages 9 through 12. According to the CAH study, toilet
seats should be lower for younger children, including those with
disabilities, so that their feet reach the floor in order to provide
stability and greater usability. The CAH study further indicates that
young children with mobility impairments are typically assisted in
toileting. Therefore, for young children, maintaining a toilet seat
height that is closer to the seat height of mobility aids is less
critical. For older age groups the toilet seat height is increased to
be in closer proximity to the seat height of wheelchairs and other
mobility aids in order to facilitate independent transfers. The
specifications for toilet seat height in section 15.6.2 are to be used
instead of the 17 to 19 inches required by ADAAG 4.16.3.
Section 15.6.2 requires grab bars serving water closets to be
mounted accordingly for the following age groups: 18 to 20 inches for
ages 2 through 4, 20 to 25 inches for ages 5 through 8, and 25 to 27
inches for ages 9 through 12. These grab bar heights are based on the
CAH recommendations and are to be applied instead of the 33 to 36 inch
height required by ADAAG 4.16.4 and Fig. 29.
Rear grab bars mounted 18 to 27 inches above the floor cannot be
provided where tank-type water closets are used because the top of the
tank is usually above the grab bar mounting location. This is generally
not a problem in adult facilities where grab bars are mounted above
conventional tanks.
Question 11: Are tank-type water closets commonly provided in
children's facilities? If so, what is the difference in cost between
water closets with tanks and those without tanks? Where possible,
responses should include per unit cost and installation costs of the
two types of water closets.
Question 12: Do the grab bar heights specified in the table in
section 15.6.2 conflict with building or plumbing code requirements for
flush control location, size, and height? If so, what accessible design
alternatives could avoid such conflicts and what are the costs
associated with such alternatives?
Section 15.6.3 specifies that the grab bar gripping surface have a
diameter of 1 to 1\1/4\ inches or provide an equivalent gripping
surface, consistent with the CAH recommendations. Current ADAAG
requires a diameter of 1\1/4\ to 1\1/2\ inches. Grab bars covered by
this section, which are also subject to requirements of ADAAG 4.16,
must meet the requirements of ADAAG 4.26 (Handrails, Grab Bars, and Tub
and Shower Seats), including requirements for spacing from the wall of
1\1/2\ inches (4.26.2), structural strength (4.26.3), and surface
(4.26.4). ADAAG 4.26.4 requires grab bars to be free of any sharp or
abrasive surfaces. Some building codes require grab bars to have
textured surfaces (knurled, peened or anti-slip) to prevent hands from
slipping during use.
Question 13: Should a requirement be included for textured grab
bars serving children? What types of texturing are most effective in
preventing slippage and improving grip that are not sharp or abrasive?
The Access Board may consider including such a requirement in the final
rule.
The table in section 15.6.2 provides mounting heights for toilet
paper dispensers according to the following age groups: 14 inches for
ages 2 through 4, 14 to 17 inches for ages 5 through 8, and 17 to 19
inches for ages 9 through 12. This modifies ADAAG 4.16.6 and Fig.
29(b), which specifies a height of 19 inches.
[[Page 37971]]
Section 15.6.4 requires that flush controls be mounted within the
reach ranges for children specified in section 15.2 (20 to 36 inches
for ages 2 through 4, 18 to 40 inches for ages 5 through 8, and 16 to
44 inches for ages 9 through 12) instead of at 44 inches or below as
required by ADAAG 4.16.5.
Question 14: Do the proposed heights for flush controls conflict
with any plumbing codes, industry practices, or design practices? If
so, responses should identify and describe the specific code or
practice conflict.
15.7 Toilet Stalls
This section contains specifications for toilet stalls provided in
toilet rooms constructed according to children's dimensions and
anthropometrics. This section does not increase the minimum number of
accessible toilet stalls required by ADAAG 4.22.4. Section 15.7
modifies requirements in ADAAG 4.17 (Toilet Stalls) for water closets
(4.17.2), stall size (4.17.3), toe clearance (4.17.4), and grab bars
(4.17.6). Under section 15.7.1, toilet stalls required to be accessible
by ADAAG 4.22.4 shall comply with ADAAG 4.17, except as modified by
section 15.7.
Section 15.7.2 requires water closets in accessible stalls to
comply with section 15.6. The water closet centerline specifications in
section 15.6.2 are appropriate only for stalls wide enough to allow
side transfers. See section 15.6.2.
Section 15.7.3 requires standard stalls to have a minimum stall
depth of 59 inches where toilets are wall- or floor-mounted. This
modifies ADAAG 4.17.3 (Fig. 30(a)), which also requires a minimum depth
of 59 inches for stalls with floor-mounted water closets but specifies
a minimum depth of 56 inches for stalls with wall-mounted water
closets. Section 15.7.3 increases the minimum depth because wall-
mounted water closets serving children may not provide adequate toe
clearance. Wall-mounted water closets with adult seat heights of 17 to
19 inches typically provide toe clearance beneath the water closet for
adults. As water closets designed to serve young children are lower
than adult water closets and as children's footrests are generally
higher than adults, toe clearance is not available beneath wall-mounted
water closets serving children.
Similarly, in the case of standard stalls located at the end of the
row, section 15.7.3 specifies a depth of 59 inches in addition to the
minimum 36 inches required for the stall door and for the 90 degree
turn. This modifies ADAAG 4.17.3 (Fig. 30(a-1)), which requires the
same minimum depth for stalls with floor-mounted water closets but
specifies a minimum depth of 56 inches for stalls with wall-mounted
water closets.
Section 15.7.3 also specifies that when alterations are made,
alternate stalls with wall- or floor-mounted water closets have a
minimum depth of 69 inches. This modifies ADAAG 4.17.3 (Fig. 30(b)),
which requires the same depth for stalls with floor-mounted water
closets but specifies a minimum depth of 66 inches for alternate stalls
with wall-mounted water closets. ADAAG 4.17.3 includes an exception
permitting use of alternate stalls in lieu of the standard 60 inch wide
stall in alterations where it is technically infeasible to provide a
standard stall.
Question 15: What is the cost impact of requiring stalls with wall-
mounted water closets to be at least 59 inches deep?
Section 15.7.4 specifies that the front partition and one side
partition of standard stalls of minimum dimension provide a toe
clearance of 12 inches minimum. This modifies ADAAG 4.17.4, which
requires a toe clearance of 9 inches minimum. According to the CAH
study, this higher toe clearance is necessary for children since their
legs are shorter, resulting in footrests that are typically mounted
higher than on adult wheelchairs.
Question 16: Section 15.7.4, consistent with current ADAAG,
requires toe clearance beneath partitions only where the stall depth is
60 inches or less. The CAH study did not consider whether toe clearance
is necessary in stalls more than 60 inches deep, including end- of-row
standard stalls and alternate stalls. Is a 12 inch toe clearance
beneath partitions needed for children's maneuvering in stalls more
than 60 inches deep? The Access Board may include such a requirement in
the final rule.
Question 17: While the CAH study recommended that toe clearance
beneath partitions be at least 12 inches high, it also recommended, as
proposed in section 15.6.2, that toilets serving young children (i.e.,
ages 2 through 4) have a seat height of 11 to 12 inches. The CAH
recommendations do not address privacy considerations concerning
clearances beneath partitions that are as high or higher than the
toilet seat height. Does this toe clearance requirement and toilet seat
height compromise privacy? What design solutions are available that
provide the 12 inch toe clearance while maintaining the privacy of
stall users? Should a wider width of stalls be specified in the final
rule as an alternative to the provision of toe clearance beneath
partitions? If so, what should this wider stall width be? Where
possible, commenters should include any information on the cost impact
of their recommendation.
Section 15.7.5 requires that grab bars be mounted as specified in
section 15.6.2. This modifies the height requirements in ADAAG 4.17.6,
but does not change the length and configuration requirements shown in
Fig. 30. Section 15.7.5 also specifies that the gripping surface have a
diameter of 1 to 1\1/4\ inches or provide an equivalent gripping
surface, consistent with CAH recommendations. Current ADAAG (4.26.2)
requires grab bars to have a diameter of 1\1/4\ to 1\1/2\ inches. Grab
bars subject to ADAAG 4.17 must meet ADAAG 4.26 (Handrails, Grab Bars,
and Tub and Shower Seats), including requirements for spacing from the
wall of 1-\1/2\ inches (4.26.2), structural strength (4.26.3), and
surface (4.26.4). See section 15.6.2 for discussion and questions on
grab bars at water closets.
15.8 Lavatories and Mirrors
This section provides specifications for accessible lavatories and
mirrors and modifies requirements in ADAAG 4.19 (Lavatories and
Mirrors) for lavatory height and clearances (4.19.2), clear floor space
(4.19.3), and mirror height (4.19.6). In toilet rooms, bathrooms,
bathing facilities, and shower rooms constructed according to
children's dimensions and anthropometrics, section 15.8.1 provides that
at least one lavatory and mirror be accessible to children with
disabilities. This does not increase the number of lavatories or
mirrors required to be accessible by current ADAAG 4.22 (Toilet Rooms)
or ADAAG 4.23 (Bathrooms, Bathing Facilities, and Shower Rooms).
Section 15.8.2 specifies a lavatory rim no higher than 30 inches
above the floor and a minimum clearance 27 inches high from the floor
to the underside of the apron. These specifications, like those for
drinking fountains, are based on children's dimensions and CAH
recommendations. This section modifies ADAAG 4.19.2, which requires a
maximum rim height of 34 inches and a minimum clearance of 29 inches.
One comment to the ANPRM from a local school system stated that
lavatories for children without disabilities ages 2 through 5 are
mounted no higher than 24 inches. Some state requirements for
educational or child care facilities specify standard mounting heights
of 24 to 26 inches for lavatories serving young children. Thus, a 30
inch maximum height may conflict with such requirements and may be too
high to be usable by children using crutches and
[[Page 37972]]
by children without disabilities. In contrast, an accessible lavatory
mounted at adult height (e.g., 34 inches maximum) is generally usable
by all adults, including those with disabilities. Where a children's
toilet room has only one lavatory constructed according to children's
dimensions and anthropometrics, this rule specifies the lavatory to be
accessible to children with disabilities.
Section 15.8.2 also requires that the clear knee space beyond the
leading edge of the apron be at least 24 inches high measured from the
floor and at least 8 inches deep measured from the leading edge. Toe
clearance at least 12 inches high measured from the floor is also
required. According to the CAH study, this higher toe clearance is
necessary for children since their legs are shorter, resulting in
wheelchair footrests that are typically mounted higher than on adult
wheelchairs. The CAH study recommended these clearances to enable
children using wheelchairs to approach lavatories and reach the bowl
and faucets. This section modifies ADAAG 4.19.2 and Fig. 31, which
specify knee clearance at least 27 inches high and toe clearance at
least 9 inches high.
Question 18: Are lavatories currently available that meet the
proposed requirements for rim height and knee and toe clearances when
properly mounted? If not, what are the design or product specifications
that conflict with these proposed requirements? What products or design
solutions are available for providing lavatories with 24 inch knee
clearance and a 30 inch rim height that are also usable by all
children, including those with disabilities? Where possible, responses
should include cost estimates for these products or design solutions.
Section 15.8.3 specifies that the required clear floor space may
extend no more than 14 inches beneath the lavatory. The CAH
recommendations, consistent with Florida's recommended ``Building
Standards for Educational Facilities for Handicapped Children''
(Florida Department of Education, 1988) (the ``Florida recommended
standards''), (section 8.5.2.3 (Fig. 8.9)), specify a maximum overlap
of 12 inches. The 14 inch maximum proposed in this provision, however,
is consistent with current ADAAG requirements for knee clearance at
least 8 inches deep and toe clearance no more than 6 inches deep. This
modifies ADAAG 4.19.3, which allows a maximum overlap of 19 inches.
In its evaluation of children's facilities, CAH observed that many
children using wheelchairs positioned themselves aside, and sometimes
between, lavatories in order to reach faucet controls. This was
observed at lavatories of various heights where controls were mounted
at the back of the bowl. The CAH study recommended that faucets be
located within 14 inches of the front edge of the lavatory. The Florida
recommended standards (section 8.5.4 (Fig. 8.10)) permit location of
controls at the front of the lavatory or aside the bowl. The Texas
State Building Code (section 2.1.1, Texas Accessibility Standards,
April 1, 1994) requires that faucets be located no more than 18 inches
from the front edge of lavatories serving children ages 4 through 10 or
11.
Question 19: The final rule may specify that faucets be located no
more than 14 inches from the front edge of lavatories. Is this distance
appropriate or should an alternative distance or location (i.e., aside
or in front of bowls) be specified? Where possible, recommendations for
alternative distances or locations should include rationale and other
supporting data, as well as identification of any potential conflicts
with plumbing codes. Commenters should consider Question 4 (reach over
obstruction) when responding. Information is sought on design
alternatives and new technologies, such as automatic sensors, that
facilitate use of faucets by children.
Section 15.8.4 provides that the bottom edge of mirrors at
accessible lavatories be mounted no higher than 34 inches above the
floor. ADAAG 4.19.6 currently provides that mirrors at lavatories
accessible to adults have their bottom edge no higher than 40 inches.
The CAH study noted that mirrors mounted above lavatories are too high
for many children to use and recommended providing a full-length mirror
in children's toilet rooms, which are commonly provided in elementary
school toilet rooms. The current appendix to ADAAG 4.19.6 notes that
full-length mirrors provide more convenient access than mirrors mounted
above lavatories. A 30 by 48 inch clear floor space should be provided
in front of these mirrors outside the door swing.
Question 20: Should full-length mirrors and clear floor space be
required in children's toilet rooms? Where possible, responses should
include information on the cost and space impact. The final rule may
include such a requirement.
15.9 Storage
This section covers fixed and built-in storage facilities
constructed according to children's dimensions and anthropometrics.
ADAAG 4.1.3(12) requires at least one of each type of storage space or
element to be accessible. Section 15.9.1 requires that these spaces and
elements comply with ADAAG 4.25 (Storage), as modified by section
15.9.2.
Section 15.9.2 requires that storage facilities be within the reach
range specified in section 15.2 for front or side reaches. This applies
to such storage spaces as lockers, cabinets, shelves, closets, and
drawers, and to such storage elements, as clothes rods, shelving, and
hooks. This modifies ADAAG 4.25.3, which specifies a range of 15 to 48
inches for front reach and 9 to 54 inches for side reach.
15.10 Fixed or Built-in Seating and Tables
This section addresses fixed and built-in seating and tables
constructed according to children's dimensions and anthropometrics.
ADAAG 4.1.3(18) requires five percent of built-in seating or tables to
be accessible. Section 15.10.1 requires compliance with ADAAG 4.32
(Fixed and Built-in Seating and Tables), as modified by this section.
Section 15.10.2 specifies that fixed tables shall not overlap the
required 30 by 48 inch clear floor space by more than 14 inches. This
is consistent with requirements for clear floor space at lavatories in
section 15.8. ADAAG 4.32.2 currently allows an overlap of 19 inches.
Section 15.10.3 requires knee clearance at least 24 inches high, 30
inches wide, and 14 inches deep. This modifies ADAAG 4.32.3, which
requires knee clearance at least 27 inches high, 30 inches wide, and 19
inches deep. Section 15.10.4 requires the tops of accessible tables and
counters to be 26 to 30 inches high, measured from the floor. This
differs from ADAAG 4.32.4, which specifies a range of 28 to 34 inches
for this height. The specifications proposed in section 15.10 are based
on the CAH recommendations.
Other Issues
In the course of the development of this proposed rule, questions
have been raised about the effect of other current ADAAG requirements
on accessibility for children with disabilities. These issues are
discussed below.
There is no known data available to enable the Access Board and the
Department of Justice to determine whether additional regulations in
this area are necessary or appropriate. Therefore, the agencies have
not included specific regulatory requirements on these issues in this
proposed rule. The Access Board and the Department of Justice raise
these
[[Page 37973]]
questions now in an effort to determine if there is sufficient data
available to support future regulatory requirements.
Clear Floor and Knee Clearance: Width
ADAAG 4.2 (Space Allowance and Reach Ranges) specifies that clear
floor or ground space 30 inches wide and 48 inches long is the minimum
necessary to accommodate a single, stationary wheelchair occupied by an
adult. This clear floor space is required at drinking fountains,
lavatories, sinks, built-in tables, and telephones. Consistent with
this requirement, ADAAG also requires knee space at least 30 inches
wide beneath such elements. The CAH recommendations, as well as the
Florida recommended standards (section 9.2.2 (Fig. 9.5)), specify that
the clear floor space and knee clearance be at least 36 inches wide in
children's facilities. According to the CAH recommendations, the upper
body strength and maneuvering skills of children are not as developed
as those of adults, therefore children require more space to approach
and position themselves at elements. Increasing the width of the clear
floor space may require additional space between adjacent elements such
as drinking fountains, telephones, and lavatories, or wider alcoves in
which such elements are mounted.
Question 21: Should the minimum width of clear floor space and knee
clearance be increased to 36 inches, or some other recommended
alternative, in facilities constructed according to children's
dimensions and anthropometrics? Where possible, responses should
include information on the cost impact in new construction of
increasing this width to 36 inches or recommended alternatives.
Accessible Route: Minimum Width
ADAAG 4.3 (Accessible Route) requires that the width of accessible
routes shall be 36 inches minimum. The CAH study recommended that
accessible routes in children's facilities be at least 44 inches wide.
In its evaluation of children's facilities, CAH observed children
straying or diverging from a direct line of travel in traversing halls
and corridors and approaching elements and fixtures. The CAH study
attributed this to children's level of strength, stamina, and dexterity
in the use of mobility aids. Most state building codes do not contain
requirements that specifically address accessible routes for children.
However, the Florida recommended standards (section 3.3.3) specify a
minimum width of 44 inches for interior accessible routes. The Access
Board is considering a similar requirement. State building and life
safety codes typically require hallways or corridors to be wider than
44 inches for purposes of egress. Therefore, a requirement for a 44
inch wide route may have little cost and space impact in hallways or
corridors. Routes off hallways or corridors in classrooms, libraries,
toilet rooms, and other spaces would be affected by such a requirement.
This includes routes to accessible study carrels and between library
stacks. Increasing the minimum accessible route width would impact
current ADAAG requirements for widths at turns around obstructions
(4.3.3, Fig. 7(a)), passing space (4.3.4), curb ramps (4.7.3), and
ramps (4.8.3).
Question 22: Should the minimum width of an accessible route be
increased from 36 inches to 44 inches? Where possible, responses should
provide a rationale with any supporting data, and information on the
cost impact of an accessible route wider than 36 inches in new
construction. See Question 2 (accessible route).
Ramps: Slope and Rise
ADAAG 4.8 (Ramps) requires that the least possible slope be used on
any ramp, and that the maximum slope not exceed 1:12 in new
construction. The CAH recommendations and commenters to the ANPRM
considered the 1:12 slope too steep for children and recommended
maximum slopes of 1:16 or 1:20 to take into account the differences in
strength and stamina between children and adults. The Access Board is
currently conducting a research project on ramp slope. Children will be
included in the test sample. The Access Board anticipates that this
research will be completed prior to the issuance of a final rule on
children's facilities and that the results may be incorporated in this
section.
Question 23: What should the maximum slope be for ramps used by
children? Where possible, commenters should provide data to support
their recommendations and information on the cost impact of their
recommendations in new construction. See Question 2 (accessible route).
The usability of a ramp generally depends both on its slope and
length of run. ADAAG 4.8.2 specifies a maximum length of run of 30 feet
for ramps steeper than 1:16 and a maximum length of run of 40 feet for
ramps with slopes 1:16 to 1:20. The CAH study recommended a maximum
length of run of 20 feet for ramps in children's facilities since
children generally do not have the strength to negotiate longer ramps.
A 20 foot maximum length of run for ramps with slopes of either 1:16 or
1:20, as recommended by the CAH study, will limit the rise to
approximately 9\5/8\ and 12 inches, respectively. The ramp research
which the Access Board is conducting will study and make
recommendations on ramp length.
Question 24: Should the maximum length of run for ramps in
facilities constructed according to children's dimensions and
anthropometrics be reduced to 20 feet? Where possible, responses should
include rationale with supporting data and information on the cost
impact in new construction. See Question 2 (accessible route).
Door Hardware
The CAH study recommended that door hardware be mounted 30 to 34
inches from the floor. ADAAG 4.13 (Doors) specifies that door hardware
be mounted no higher than 48 inches, which is generally consistent with
most building codes. According to conventional design practice, door
hardware is typically mounted at 36 inches above the floor.
Question 25: Doors in facilities constructed according to
children's dimensions and anthropometrics are also used by adults. Is
door hardware mounted between 30 to 34 inches above the floor usable by
adults?
Urinals
The CAH study recommended that urinal rims be 14 inches high
maximum and that flush controls be 30 inches high maximum above the
floor, instead of the 17 inch rim height and the 44 inch flush control
height required by ADAAG 4.18 (Urinals). In response to the ANPRM, a
national manufacturer of plumbing fixtures commented that the 30 inch
height for flush controls is not feasible since the average urinal is
27 inches high, and further commented that national plumbing codes
require the flush valve handle to be at least 8\1/2\ inches above the
urinal, resulting in a flush control height of at least 38 to 40
inches.
Question 26: Are there products or design solutions currently
available that meet both applicable codes and the CAH recommended
specifications, including the 30 inch maximum height for flush
controls? Where possible, responses should identify any cost increases
associated with designing or installing urinals to meet the CAH
recommendations and applicable plumbing codes.
Sinks
Sinks provided in spaces for children may serve different purposes
and users. In schools for example, some sinks may serve as a wash
station for children,
[[Page 37974]]
while others may serve as part of a work station for instructors.
Often, one sink is provided for both purposes. The CAH recommendations
included requirements for sinks accessible to children. Similar to the
provisions for lavatories, the CAH study recommended that sinks have a
rim no higher than 30 inches above the floor, knee clearance at least
24 inches high, and that the faucet and faucet controls be located
within 14 inches of the front edge of the sink. Under these
recommendations, sink bowls could be no more than 5\1/2\ inches deep.
These recommendations modify ADAAG 4.24 (Sinks), which specifies a 34
inch maximum sink height and 27 inch minimum knee clearance. Standard
mounting heights for sinks serving young children may be 24 to 26
inches, according to some state requirements for educational
facilities. Thus, a 30 inch maximum height may conflict with such
requirements and be too high for young children.
Question 27: What product or design solutions are available for
providing sinks with 24 inch knee clearance and a 30 inch rim height
that are also usable by young children who are ambulatory? Where
possible, responses should include cost estimates for these products or
design solutions.
Signage
The CAH study recommended that tactile signage be mounted at a
height of 48 inches, while the Florida recommended standards (section
3.20.5 (Fig. 3.31)) specify a maximum height of 42 inches. ADAAG 4.30
(Signage) requires raised and Brailled signage to be mounted 60 inches
above the finish floor.
Question 28: Are signs primarily used by children in children's
facilities? If so, how should the guidelines accommodate adults? Is a
specific height of either 48 inches or 42 inches appropriate for
signage provided for children? Are there other heights which would be
more appropriate?
Wheelchair Seat Heights
The type, size, and specifications of wheelchairs vary widely and,
as with any consumer product, individuals may have a number of reasons
for using one type or model rather than another. The CAH
recommendations, as well as available product information on
wheelchairs, suggest that the average seat height on child-sized
wheelchairs may range from 1 to 2 inches lower than the average seat
height on adult-sized wheelchairs. The proposed requirements in this
rule for the minimum knee clearance height and maximum height of such
accessible elements as drinking fountain spout outlets, fixed tables,
and lavatories are based on the size and stature of children, as well
as the average seat height of child-sized wheelchairs.
Question 29: What is the average age where children begin to use
adult-sized wheelchairs?
Regulatory Process Matters
Executive Order 12866
The Office of Management and Budget has reviewed this proposed rule
as a ``significant regulatory action'' under Executive Order 12866,
section 3(f)(4). Facilities covered by this rule are already subject to
the scoping and technical provisions in current ADAAG. Therefore, with
the exception of additional handrails required on covered ramps or
stairs, this rule does not add new requirements. Rather, it generally
proposes to modify, or questions whether to modify, current ADAAG
provisions when constructing facilities according to children's
dimensions and anthropometrics. The Access Board and the Department of
Justice have determined that the costs associated with the application
of the proposed requirements will have a minimal cost impact on new or
altered facilities constructed according to children's dimensions and
anthropometrics; and therefore a cost-benefit analysis is not required
under Executive Order 12866, section 6(a)(3)(C). However, the agencies
have requested additional cost information in this proposed rule and,
upon receipt of that information, will reevaluate whether a cost-
benefit analysis is required for the final rule.
Regulatory Flexibility Act Analysis
Under the Regulatory Flexibility Act, the publication of a rule
requires the preparation of a regulatory flexibility analysis if such
rule could have a significant economic impact on a substantial number
of small entities. For the reasons discussed above, the Access Board
and the Department of Justice have determined independently that this
proposed rule is not expected to have a significant economic impact on
a substantial number of small entities. Accordingly, a regulatory
flexibility analysis is not required.
Federalism Assessment
The Access Board and the Department of Justice also have determined
independently that this rule will not have sufficient federalism
implications to require a federalism assessment under Executive Order
12612.
Enhancing the Intergovernmental Partnership
Executive Order 12875, Enhancing the Intergovernmental Partnership,
encourages Federal agencies to consult with state and local governments
affected by the implementation of legislation. Prior to the issuance of
this NPRM, the Access Board issued an ANPRM on February 3, 1993. (See
58 FR 6924.) The ANPRM sought comment on general issues and also
requested information on standards and guidelines for children's
environments currently in use, building products and technologies
currently available that specifically serve children, and elements and
features unique to children's environments that may merit specific
attention. The Access Board received a number of comments from various
state and local governments. Those comments are discussed in the
section-by-section analysis above. In addition, the Access Board
specifically contacted the departments of education in a number of
states regarding this rulemaking. Furthermore, the Access Board and the
Department of Justice are forwarding a copy of this NPRM to the
departments of education, state education associations, the state
building code authorities, and other various responsible agencies in
each of the 50 states seeking their input and comment on the proposed
rule. Interested state and local government agencies, as well as the
general public, may obtain technical assistance regarding this NPRM by
contacting the Access Board at (202) 272-5434 or (800) 872-2253 (voice)
and pressing 2 on the telephone keypad or (202) 272-5449 or (800) 993-
2822 (TTY).
Text of Proposed Comm
FR Doc. 96-18138 Americans With Disabilities Act Accessibility Guidelines for Buildings and Facilities; Children's Facilities AGENCIES: Architectural and Transportation Barriers Compliance Board and Department of Justice.
on Rule
Appendix A to part is proposed to be amended by adding a new
section 15 and by adding A15.1 and A15.6.2 in the appendix to appendix
A to read as follows:
* * * * *
15. CHILDREN'S FACILITIES.
15.1* Application.
This section applies to facilities, or portions of facilities,
constructed according to children's dimensions and anthropometrics for
ages 2 through 12. Facilities covered by this section shall comply with
the applicable requirements of 4.1 through 4.35 and the special
application sections, except as modified or otherwise provided in this
section. All public and common use areas covered by this section are
required to be designed and constructed to comply with 4.1 through
4.35, except
[[Page 37975]]
as modified or otherwise provided in this section. Accessible elements
and spaces covered by this section shall be on an accessible route
complying with 4.3, 15.3, and 15.4. The specifications in this section
are based on children's dimensions and anthropometrics.
The phrase ``constructed according to children's dimensions and
anthropometrics'' means where the construction of a facility reflects
the size and dimensions, reach ranges, level of strength and stamina,
or other characteristics of children. Facilities constructed that do
not reflect children's characteristics are not covered by this section.
15.2 Reach Ranges.
15.2.1 General. The requirements in 4.2.5 and 4.2.6 are modified
by the following provisions.
15.2.2 Forward and Side Reach. The high forward or high side
reach, and the low forward or low side reach shall comply with A, B, or
C in the table below. Selection of A, B, or C should correspond to the
age range of the primary user group.
Forward and Side Reach
------------------------------------------------------------------------
High reach (not more Low reach (not less
than) than)
------------------------------------------------------------------------
A--Ages 2 through 4......... 36 in (915 mm)...... 20 in (510 mm).
B--Ages 5 through 8......... 40 in (1015 mm)..... 18 in (455 mm).
C--Ages 9 through 12........ 44 in (1120 mm)..... 16 in (405 mm).
------------------------------------------------------------------------
15.3 Protruding Objects.
The requirements in 4.4.1 are modified by 15.3. Objects projecting
from walls with their leading edges between 12 in and 80 in (305 mm and
2030 mm) above the finish floor shall protrude no more than 4 in (100
mm) into walks, halls, corridors, passageways, or aisles. Objects
mounted with their leading edges at or below 12 in (305 mm) above the
finish floor may protrude any amount. Free-standing objects mounted on
posts or pylons may overhang 12 in (305 mm) maximum from 12 in to 80 in
(305 mm to 2030 mm) above the ground or finish floor. Protruding
objects shall not reduce the clear width of an accessible route or
maneuvering space.
15.4 Handrails at Ramps and Stairs.
15.4.1 General. In addition to the handrails required by 4.8 and
4.9, a second set of handrails shall be provided complying with 4.8.5
or 4.9.4 and 4.26.2, except as modified by the following provisions.
15.4.2 Height. The top of handrail gripping surfaces shall be
mounted between 20 in and 28 in (510 mm and 710 mm) above ramp surfaces
or stair nosings.
15.4.3 Size. The gripping surfaces of handrails shall have a
diameter or width of 1 in to 1\1/4\ in (25 mm to 30 mm), or the shape
shall provide an equivalent gripping surface.
15.5 Drinking Fountains and Water Coolers.
15.5.1 General. Drinking fountains or water coolers required to be
wheelchair accessible by 4.1 shall comply with 4.15, except as modified
by 15.5. The requirements in 4.15.2 and 4.15.5 are modified by the
following provisions.
15.5.2 Spout Height. Spouts shall be no higher than 30 in (760
mm), measured from the floor or ground surface to the spout outlet.
15.5.3 Clearances. Wall-mounted and post-mounted cantilevered
units shall have a clear knee space between the bottom of the apron and
the floor or ground at least 24 in (610 mm) high and 8 in (205 mm)
deep, measured from the leading edge of the fountain. Clear toe space
shall be 12 in (305 mm) high minimum, measured from the finish floor.
Such units shall also have a minimum clear floor space 30 in by 48 in
(760 mm by 1220 mm) to allow a forward approach to the unit. The clear
floor space may extend a maximum of 14 in (305 mm) underneath the
fountain.
15.6 Water Closets, Toilet Seats, Grab Bars, and Toilet Paper
Dispensers.
15.6.1 General. Water closets required to be accessible by 4.22.4
shall comply with 4.16, except as modified by 15.6. The requirements in
4.16 and 4.26.2 are modified by the following provisions.
15.6.2* Placement. The centerline and seat height of the water
closet and the centerline height of the grab bars and toilet paper
dispenser shall comply with A, B, or C in the table below. Selection of
A, B, or C should correspond to the age range of the primary user
group. The centerline requirements in the table do not apply to the 36
in (915 mm) wide alternate stall permitted in alterations by
4.1.6(3)(e)(ii). The centerline of water closets shall be measured from
one side wall or stall partition.
Specifications for Water Closets, Toilet Seats, Grab Bars, and Toilet Paper Dispensers
----------------------------------------------------------------------------------------------------------------
Water closet Toilet seat
centerline height Grab bar height Dispenser height
----------------------------------------------------------------------------------------------------------------
A (Ages 2 through 4)........... 12 in (305 mm)... 11 in to 12 in 18 in to 20 in 14 in (355 mm).
(280 mm to 305 (455 mm to 510
mm). mm).
B (Ages 5 through 8)........... 12 in to 15 in 12 in to 15 in 20 in to 25 in 14 in to 17 in (355 mm
(305 mm to 380 (305 mm to 380 (510 mm to 635 to 430 mm).
mm). mm). mm).
C (Ages 9 through 12).......... 15 in to 18 in 15 in to 17 in 25 in to 27 in 17 in to 19 in (430 mm
(380 mm to 455 (380 mm to 430 (635 mm to 685 to 485 mm).
mm). mm). mm).
----------------------------------------------------------------------------------------------------------------
15.6.3 Grab Bar Size. The diameter or width of the gripping
surface of a grab bar shall be 1 in to 1\1/4\ in (25 mm to 30 mm), or
the shape shall have an equivalent gripping surface.
15.6.4 Flush Controls. Flush controls shall be located within the
reach ranges specified by 15.2.
15.7 Toilet Stalls.
15.7.1 General. Toilet stalls required to be accessible by 4.22.4
shall comply with 4.17, except as modified by 15.7. The requirements in
4.17.2, 4.17.3,
[[Page 37976]]
4.17.4, 4.17.6, and 4.26.2 are modified by the following provisions.
15.7.2 Water Closets. Water closets in accessible stalls shall
comply with 15.6.
15.7.3 Depth. Standard stalls with floor- or wall-mounted water
closets shall have a depth of 59 in (1500 mm) minimum. Standard stalls
at the end of a row with floor- or wall-mounted water closets shall
have a depth of 59 in (1500 mm) in addition to the minimum 36 in (915
mm) required for the stall door. Where provided in alterations,
alternate stalls with floor- or wall-mounted water closets shall have a
depth of 69 in (1745 mm) minimum.
15.7.4 Toe Clearance. In standard stalls of minimum dimension, the
front partition and at least one side partition shall provide a toe
clearance of 12 in (305 mm) minimum above the finish floor. If the
depth of the stall is greater than 60 in (1525 mm), then the toe space
is not required.
15.7.5 Grab Bars. Grab bar mounting heights shall comply with the
heights specified in 15.6. The diameter or width of the gripping
surfaces of a grab bar shall be 1 in to 1\1/4\ in (25 mm to 30 mm), or
the shape shall provide an equivalent gripping surface.
15.8 Lavatories and Mirrors.
15.8.1 General. Lavatories and mirrors required to be accessible
by 4.22.6 and 4.23.6 shall comply with 4.19, except as modified by
15.8. The requirements in 4.19.2, 4.19.3, and 4.19.6 are modified by
the following provisions.
15.8.2 Height and Clearances. Lavatories shall be mounted with the
rim or counter surface no higher than 30 in (760 mm) above the finish
floor. A clearance of 27 in (685 mm) minimum measured from the finish
floor to the bottom of the apron shall be provided. Minimum clear knee
space 24 in (610 mm) high, measured from the finish floor, and 8 in
(205 mm) deep, measured from the leading edge of the lavatory, shall be
provided. Clear toe space shall be 12 in (305 mm) high minimum,
measured from the finish floor.
15.8.3 Clear Floor Space. Clear floor space shall extend a maximum
of 14 in (355 mm) underneath the lavatory.
15.8.4 Mirrors. Mirrors shall be mounted with the bottom edge of
the reflecting surface no higher than 34 in (865 mm) above the finish
floor.
15.9 Storage.
15.9.1 General. Fixed storage facilities such as lockers,
cabinets, shelves, closets, and drawers required to be accessible by
4.1 shall comply with 4.25, except as modified by 15.9. The
requirements in 4.25.3 are modified by the following provision.
15.9.2 Height. Accessible storage spaces shall be within at least
one of the reach ranges specified in 15.2. Clothes rods, hooks, or
shelves shall be a maximum of 36 in (915 mm) above the finish floor for
a side approach.
15.10 Fixed or Built-in Seating and Tables.
15.10.1 General. Fixed or built-in seating or tables required to
be accessible by 4.1 shall comply with 4.32, except as modified by
15.10. The requirements in 4.32.2, 4.32.3, and 4.32.4 are modified by
the following provisions.
15.10.2 Seating. Clear floor space shall not overlap knee space by
more than 14 in (355 mm).
15.10.3 Knee Clearances. Knee clearance at least 24 in (610 mm)
high, 30 in (760 mm) wide, and 14 in (355 mm) deep shall be provided.
15.10.4 Height of Tables or Counters. The tops of accessible
tables and counters shall be from 26 in to 30 in (660 mm to 760 mm)
above the finish floor or ground.
Appendix
* * * * *
A15.1 Application.
Section 15 modifies the technical requirements in section 4.
This section applies to facilities, or portions thereof, constructed
according to children's dimensions and anthropometrics for ages 2
through 12. State and local codes and guidelines, as well as best
practices, often specify that facilities be designed to accommodate
children rather than adults, particularly where children are the
primary population served by a facility. These codes, guidelines,
and best practices may specify lower mounting heights for certain
elements used primarily by children, such as water fountains,
lavatories, and toilets. This section provides accessibility
requirements for these elements and is intended to apply where state
or local codes, guidelines, or best practices specify design for
children.
The phrase ``constructed according to children's dimensions and
anthropometrics'' means where the construction of a facility
reflects the size and dimensions, reach ranges, level of strength
and stamina, or other characteristics of children, thus rendering
such a facility more usable by children. Facilities constructed that
do not reflect children's characteristics are not covered by section
15.
Section 15 also specifies that accessible elements and spaces
constructed according to children's dimensions and anthropometrics
shall be on an accessible route complying with 4.3, 15.3, and 15.4.
Additional routes serving the children's area are not subject to the
requirements in this section. Accessible routes subject to this
section must comply with the requirements for protruding objects
(15.3) and handrails at ramps and stairs (15.4). For example, a
children's area may be located in a portion of a community center
and may have elements and features constructed according to
children's dimensions and anthropometrics, such as storage units,
toilets, or lavatories. Where the accessible route serving the
children's area includes a ramp, additional handrails for children
must be provided. Additionally, objects along this accessible route
that project from walls must comply with the requirements for
protruding objects in 15.3. An accessible route complying with this
section shall also be provided where individual elements are
positioned at heights or locations based on children's sizes and
dimensions, such as a drinking fountain in a shopping mall.
A15.6.2 Placement. The requirements for water closets, toilet
seats, grab bars, and toilet paper dispensers in 15.6 reflect the
differences in the size, stature, and reach ranges of children ages
2 through 12. Section 15.6.2 requires such elements to comply with
the specifications in A, B, or C in the table provided. A, B, and C
correspond to three age groups of children: 2 through 4, 5 through
8, and 9 through 12, respectively. To permit design discretion where
toilet rooms may serve more than one age group, or where the age
group of users does not correspond to the specific age groups listed
in the table, this section specifies that selection of A, B, or C
``should'' correspond to the age of the primary user group. (See 3.4
General Terminology, regarding use of the term ``should.'')
The application of the specifications in A, B, or C in the table
may allow flexibility when designing for more than one age group.
For example, a water closet with centerline at 12 in (305 mm),
toilet seat at 12 in (305 mm), grab bars at 20 in (510 mm), and
dispenser at 14 in (355 mm) above the finish floor may be
appropriate for A (ages 2 through 4) and B (ages 5 through 8).
Similarly, a water closet with centerline at 15 in (380 mm), toilet
seat at 15 in (380 mm), grab bars at 25 in (635 mm), and dispenser
at 17 in (430 mm) above the finish floor may be appropriate for B
(ages 5 through 8) and C (ages 9 through 12). Multiple accessible
fixtures are not required in toilet rooms serving more than one age
group.
-----------------------------------------------------------------------
Adoption of Proposed Common Rule
The agency specific proposals to adopt the proposed common rule,
which appears at the end of the common preamble, are set forth below.
DEPARTMENT OF JUSTICE
Office of the Attorney General
28 CFR Part 38
List of Subjects in 28 CFR Part 38
Buildings and facilities, Civil rights, Individuals with
disabilities, Intergovernmental relations.
[[Page 37977]]
Authority and Issuance
By the authority vested in me as Attorney General by 28 U.S.C. 509,
510; 5 U.S.C. 301; and 42 U.S.C. 12134, 12186, and for the reasons set
forth in the common preamble, part 38 (originally proposed as part 37)
of chapter I of title 28 of the Code of Federal Regulations, as
proposed to be added at 59 FR 31816, June 20, 1994, is further proposed
to be amended as set forth below:
PART 38--NONDISCRIMINATION ON THE BASIS OF DISABILITY IN STATE AND
LOCAL GOVERNMENT SERVICES AND BY PUBLIC ACCOMMODATIONS AND IN
COMMERCIAL FACILITIES
1. The authority citation for 28 CFR part 38 continues to read as
follows:
Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12134,
12186.
2. Appendix A to part 38 is amended as set forth at the end of the
common preamble.
Dated: July 9, 1996.
Janet Reno,
Attorney General.
-----------------------------------------------------------------------
ARCHITECTURAL AND TRANSPORTATION BARRIERS COMPLIANCE BOARD
36 CFR Part 1191
List of Subjects in 36 CFR Part 1191
Buildings and facilities, Civil rights, Individuals with
disabilities.
Authority and Issuance
For the reasons set forth in the common preamble, part 1191 of
title 36 of the Code of Federal Regulations is proposed to be amended
as follows:
PART 1191--AMERICANS WITH DISABILITIES ACT (ADA) ACCESSIBILITY
GUIDELINES FOR BUILDINGS AND FACILITIES
1. The authority citation for 36 CFR part 1191 continues to read as
follows:
Authority: 42 U.S.C. 12204.
2. Appendix A to part 1191 is amended as set forth at the end of
the common preamble.
Authorized by vote of the Access Board on December 22, 1994.
Judith E. Heumann,
Chair, Architectural and Transportation Barriers Compliance Board.
[FR Doc. 96-18138 Filed 7-19-96; 8:45 am]
BILLING CODE 4410-01-P & 8150-01-P
Complete official Federal Register PDF
FR Doc. 96-18041 National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List
[Federal Register Volume 61, Number 141 (Monday, July 22, 1996)]
[Proposed Rules]
[Pages 37875-37876]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18041]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR PART 300
[FRL-5539-8]
National Oil and Hazardous Substances Pollution Contingency Plan;
National Priorities List
AGENCY: Environmental Protection Agency.
ACTION: Notice of Intent to Delete the St. Augusta Landfill/Engen Dump
from the National Priorities List; request for comments.
-----------------------------------------------------------------------
SUMMARY: The United States Environmental Protection Agency (U.S. EPA)
Region V announces its intent to delete the St. Augusta Landfill/Engen
Dump Site from the National Priorities List (NPL) and requests public
comment on this action. The NPL constitutes Appendix B of 40 CFR part
300 which is the National Oil and Hazardous Substances Pollution
Contingency Plan (NCP), which U.S. EPA promulgated pursuant to section
105 of the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (CERCLA) as amended. This action is being taken
by U.S. EPA, because it has been determined that all Fund-financed
responses under CERCLA have been implemented and U.S. EPA, in
consultation with the State of Minnesota, has determined that no
further response is appropriate. Moreover, U.S. EPA and the State have
determined that remedial activities conducted at the Site to date have
been protective of public health, welfare, and the environment.
DATES: Comments concerning the proposed deletion of the Site from the
NPL may be submitted on or before August 21, 1996.
ADDRESSES: Comments may be mailed to Gladys Beard, Associate Remedial
Project Manager, Superfund Division, U.S. EPA, Region V, 77 W. Jackson
Blvd. (SR-6J), Chicago, IL 60604. Comprehensive information on the site
is available at U.S. EPA's Region V office and at the local information
repository located at: Minnesota Pollution Control Agency, 520
Lafayette RD., St. Paul, MN 55155-4194. Requests for comprehensive
copies of documents should be directed formally to the Region V Docket
Office. The address and phone number for the Regional Docket Officer is
Jan Pfundheller (H-7J), U.S. EPA, Region V, 77 W. Jackson Blvd.,
Chicago, IL 60604, (312) 353-5821.
FOR FURTHER INFORMATION CONTACT: Gladys Beard (SR-6J), Associate
Remedial Project Manager, Superfund Division, U.S. EPA, Region V, 77 W.
Jackson Blvd., Chicago, IL 60604, (312) 886-7253 or Susan Pastor (P-
19J), Office of Public Affairs, U.S. EPA, Region V, 77 W. Jackson
Blvd., Chicago, IL 60604, (312) 353-1325.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Introduction
II. NPL Deletion Criteria
III. Deletion Procedures
IV. Basis for Intended Site Deletion
I. Introduction
The U.S. Environmental Protection Agency (EPA) Region V announces
its intent to delete the St. Augusta/Engen Dump Site from the National
Priorities List (NPL), which constitutes Appendix B of the National Oil
and Hazardous
[[Page 37876]]
Substances Pollution Contingency Plan (NCP), and requests comments on
the proposed deletion. The EPA identifies sites that appear to present
a significant risk to public health, welfare or the environment, and
maintains the NPL as the list of those sites. Sites on the NPL may be
the subject of remedial actions financed by the Hazardous Substance
Superfund Response Trust Fund (Fund). Pursuant to section 300.425(e)(3)
of the NCP, any site deleted from the NPL remains eligible for Fund-
financed remedial actions if the conditions at the site warrant such
action.
The U.S. EPA will accept comments on this proposal for thirty (30)
days after publication of this notice in the Federal Register.
Section II of this notice explains the criteria for deleting sites
from the NPL. Section III discusses procedures that EPA is using for
this action. Section IV discusses the history of this site and explains
how the site meets the deletion criteria.
Deletion of sites from the NPL does not itself create, alter, or
revoke any individual's rights or obligations. Furthermore, deletion
from the NPL does not in any way alter U.S. EPA's right to take
enforcement actions, as appropriate. The NPL is designed primarily for
informational purposes and to assist in Agency management.
II. NPL Deletion Criteria
The NCP establishes the criteria that the Agency uses to delete
Sites from the NPL. In accordance with 40 CFR 300.425(e), sites may be
deleted from the NPL where no further response is appropriate. In
making this determination, U.S. EPA will consider, in consultation with
the State, whether any of the following criteria have been met:
(i) Responsible parties or other persons have implemented all
appropriate response actions required; or
(ii) All appropriate Fund-financed responses under CERCLA have been
implemented, and no further response action by responsible parties is
appropriate; or
(iii) The Remedial investigation has shown that the release poses
no significant threat to public health or the environment and,
therefore, remedial measures are not appropriate.
III. Deletion Procedures
Upon determination that at least one of the criteria described in
300.425(e) has been met, U.S. EPA may formally begin deletion
procedures once the State has concurred. This Federal Register notice,
and a concurrent notice in the local newspaper in the vicinity of the
Site, announce the initiation of a 30-day comment period. The public is
asked to comment on U.S. EPA's intention to delete the Site from the
NPL. All critical documents needed to evaluate U.S. EPA's decision are
included in the information repository and the deletion docket.
Upon completion of the public comment period, if necessary, the
U.S. EPA Regional Office will prepare a Responsiveness Summary to
evaluate and address comments that were received. The public is welcome
to contact the U.S. EPA Region V Office to obtain a copy of this
responsiveness summary, if one is prepared. If U.S. EPA then determines
the deletion from the NPL is appropriate, final notice of deletion will
be published in the Federal Register.
IV. Basis for Intended Site Deletion
The St. August Landfill/Engen Dump is located in the northeast
quarter of Section 12, T123N, R28W, and the northwest quarter 7, T123N,
R27W of St. Augusta Township, Stearns County, Minnesota. The site is
bounded by the Mississippi River on the northeast, Johnson Creek on the
southeast, Interstate Highway 94 on the west, and privately owned land
to the south and the north.
The Engen Dump consists of two areas approximately 11 acres and 8
acres in size. The St. Augusta Landfill is approximately 16 acres in
size. A borrow pit that was used to provide cover material for the St.
Augusta Landfill is located on the northern side of the landfill.
Landfilling operations were conducted at the dump and landfill
between 1966 and 1982. The site was the primary waste disposal site for
the St. Cloud area during this time. The Engen Dump began to receive
municipal, commercial, and industrial wastes in 1966. The industrial
wastes disposed of at the dump consisted of ground glass, solids and
sledges, paper pulp waste, ash, and small amounts of cutting oils,
coolants, solvents, paints, and cleaning compounds. The dump was phased
out of operation between 1971 and 1972 and portions of the dump were
covered with on-site soils.
In June of 1985, the site was given a score of 34 under the
Superfund program hazard ranking system score. The site was proposed
for the Federal National Priorities (NPL) on September 8, 1985. The
listing was finalized in July 22, 1987, 52 FR 140.
A September 1992 Groundwater Operable Unit Remedial Investigation/
Feasibility Study (RI/FS) was prepared to fulfill the requirements of
the Request for Response Action (RFRA) issued by the Minnesota
Pollution Control Agency (MPCA) in 1993. The recommended remedial
action under the RFRA for addressing site contamination was no further
action. A no further response action was chosen for the Site because a
Closure Plan was prepared and executed for the landfill as part of the
Solid Waste Disposal Facility Permit (SW-35) issued by MPCA. No final
Record of Decision (ROD) was issued on the Site.
In 1994, the Legislature of the State of Minnesota enacted the
Landfill Cleanup Law, Minn. Laws 1994, ch. 639, codified at Minn. Stat.
Sec. Sec. 115B.39 to 115B.46 (the Act), authorizing the Commissioner of
the Minnesota Pollution Control Agency (MPCA) to assume responsibility
for future environmental response actions at qualified landfills that
have received notices of compliance from the Commissioner of MPCA.
Additionally, the Act established funds to enable the MPCA to perform
all necessary response, operation and maintenance at such landfills. At
sites where no responsible parties are conducting response actions
under CERCLA, MPCA is responsible for issuing a notice of compliance,
after it determines that all work that could be expected under a state
order or under state closure requirements, has been completed.
A notice of compliance was issued by MPCA for the St. August
Landfill/Engen Dump Site on May 8, 1995. MPCA has since assumed all
responsibility for the St. August Landfill/Engen Dump under the Act.
Therefore, no further response actions under CERCLA are appropriate at
this time. Consequently, U.S. EPA proposes to delete the site from the
NPL.
EPA, with concurrence from the State of Minnesota, has determined
that all appropriate Fund-financed responses under CERCLA at the St.
August Landfill/Engen Dump Superfund Site have been completed , and no
further CERCLA response is appropriate in order to provide protection
of human health and environment. Therefore, EPA proposes to delete the
site from the NPL.
Dated: June 17, 1996.
David A. Ullrich,
Acting Regional Administrator, U.S. EPA, Region V.
[FR Doc. 96-18041 Filed 7-19-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-17991 Environmental Analysis of Army Actions
[Federal Register Volume 61, Number 141 (Monday, July 22, 1996)]
[Proposed Rules]
[Pages 37865-37875]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17991]
=======================================================================
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DEPARTMENT OF DEFENSE
Department of the Army
32 CFR Part 651
Environmental Analysis of Army Actions
AGENCY: Department of the Army; Defense.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This proposed rule would revise Army Regulation 200-2, which
is the Army's implementing regulation for the National Environmental
Policy Act of 1969 (NEPA). Major changes are an expanded list of
categorical exclusions, clear separation of the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA) and
NEPA, and delegation of authority to approve environmental impact
statements (EIS).
DATES: To be given full consideration, comments must be received no
later than August 21, 1996.
ADDRESSES: Written comments should be sent to: Headquarters, Department
of the Army, ATTN: DAIM-ED (Mr. Timothy Julius), 600 Army Pentagon,
Washington, DC 20310-0600.
FOR FURTHER INFORMATION CONTACT: Timothy P. Julius, (703) 693-0543.
SUPPLEMENTARY INFORMATION: This proposed regulation establishes
policies and responsibilities for assessing the effects of Army
actions. It supplements Council on Environmental Quality (CEQ)
regulations for implementing the procedural provisions of NEPA (40 CFR
parts 1500-1508). The last major revision to this regulation was in
December 1988. Since that time, initiatives such as the National
Performance Review have tended to streamline the Federal Government
through decentralization, reduction and simplification of regulations,
and management of risk. This revision strives to meet the spirit of the
National Performance Review, and Executive Order (EO) 12861,
Elimination of One-Half of Executive Branch Internal Regulations, dated
September 11, 1993. This proposed regulation incorporates emerging
issues such as Environmental Justice (EO 12898, Federal Actions to
Address Environmental Justice in Minority Populations and Low-Income
Populations, dated February 11, 1994) and Community Right-to-Know (EO
12856, Federal Compliance with Right-to-Know Laws and Pollution
Prevention Requirements, dated August 3, 1993). The list of categorical
exclusions has been expanded to include a more comprehensive array of
actions routinely performed by the Army which have minimal or no
individual or cumulative effect on environmental quality. This is
intended to better focus on actions that warrant the expenditure of
time and resources for analysis and formal documentation. The authority
to approve environmental impact statements has been delegated to
Commanders of Major Commands (primarily for Installations), and Program
Executive Officers and Commanders of Major Subordinate Commands with
Milestone Decision Authority (for acquisition and development
programs). The purpose of delegation of approval authority for EISs is
to empower the officials who are responsible for accomplishing the
work. This empowerment will compel the decision makers to take more
complete ownership of their actions, and makes the NEPA process an
integral, rational part of Army decision making processes. CERCLA and
NEPA are clearly separated in recognition of the Department of
Justice's opinion with regard to the application of NEPA to CERCLA
cleanups, and to eliminate potential duplication of effort. Procedural
Requirements: This regulation does not involve the collection of
information and is therefore not subject to the provisions of the
Paperwork Reduction Act. This rule contains no policies that have
Federalism implications under EO 12612, Federalism, dated October 26,
1987. This proposed rule is not a major rule pursuant to EO 12291,
Federal Regulation, dated February 17, 1981, therefore a Regulatory
Flexibility Analysis is not require(d) This is not a significant
regulatory action pursuant to EO 12866, Regulatory Planning and Review,
dated September 30, 1993. This regulation meets the standards of Sec.
2(b)(2) of EO 12778, Civil Justice Reform, dated October 23, 1991.
List of Subjects in 32 CFR Part 651
Environmental impact statement, Environmental protection, Natural
resources.
[[Page 37866]]
The Proposal
Accordingly, it is proposed to revise 32 CFR part 651 to read as
follows:
PART 651-ENVIRONMENTAL EFFECTS OF ARMY ACTIONS (AR 200-2)
Sec.
Subpart A--Introduction
651.1 Applicability.
651.2 Purpose.
651.3 Definitions.
651.4 Responsibilities.
651.5 Policies.
Subpart B-National Environmental Policy Act of 1969 (NEPA) and the
Decision Processes
651.6 Introduction.
651.7 Actions Requiring Evaluation.
651.8 Exemptions, Exceptions, and Emergency Procedures.
651.9 Integration with Army Planning.
651.10 Classified Actions.
Subpart C-Required Records and Documents
651.11 Environmental Assessment (EA).
651.12 Finding of No Significant Impact (FONSI).
651.13 Notice of Intent (NOI).
651.14 Environmental Impact Statement (EIS).
651.15 Record of Decision (ROD).
651.16 Notice of Availability (NOA).
651.17 Notice of Availability of Weekly Receipts of EISs (NWR).
651.18 Record of Environmental Consideration (REC).
Part D--Categorical Exclusions (CXs)
651.19 General.
651.20 Determining when to use a CX.
651.21 List of Categorical Exclusions (CXs).
Part E--Environmental Assessment (EAs)
651.22 Conditions and Actions Normally Requiring an EA.
651.23 EA Format.
651.24 Finding of No Significant Impact (FONSI).
651.25 Review and Approval of EAs and FONSIs.
651.26 Public Involvement.
651.27 Mitigation and Implementation Plan.
Part F--Environmental Impact Statements (EISs)
651.28 Introduction.
651.29 Conditions Requiring an EIS.
651.30 Actions Normally Requiring an EIS.
651.31 EIS Format.
651.32 Approval Authority.
651.33 Notice of Intent (NOI).
651.34 Scoping.
651.35 Preparation and Processing of the Draft Environment Impact
Statement (DEIS).
651.36 Public Review of the DEIS.
651.37 Preparation of the Final Environmental Impact Statement
(FEIS).
651.38 Decision.
651.39 Supplemental EISs (SEISs).
651.40 The Army as a Cooperating Agency.
Authority: National Environmental Policy Act of 1969 (NEPA), 42
U.S.C. 4321 et seq. Council on Environmental Quality Regulations, 40
CFR part 1500-1508, 43 FR 55978-56007, November 29, 1978, as amended
at 51 FR 15625, April 25, 1986, and Executive Orders 11988, 11990,
12114, 12856, 12898.
Subpart A--Introduction
Sec. 651.1 Applicability.
This regulation applies to pertinent functions of the Active Army
and Army Reserve, to functions of the Army National Guard (ARNG)
involving Federal funding, and to functions for which the Army is the
DoD executive agent. It does not apply to Civil Works functions. This
regulation applies to relevant actions within the United States, which
is defined as all States, the District of Columbia, territories, and
possessions of the United States; and all waters and airspace subject
to the territorial jurisdiction of the United States. The territories
and possessions of the United States include the Virgin Islands,
American Samoa, Wake Island, Midway Island, Guam, Palmyra Island,
Johnston Atoll, Navassa Island, and Kingman Reef. This regulation also
applies to actions in the Commonwealth of Puerto Rico, the Commonwealth
of the Northern Marianas, and the Republic of the Marshall Islands.
Sec. 651.2 Purpose.
(a) Environmental Analysis of Army Actions is the Army's
implementing regulation for the National Environmental Policy Act of
1969 (NEPA). This regulation sets forth the Army's policies and
responsibilities for the early integration of environmental
considerations into Army planning and decision making processes.
(b) This regulation establishes criteria to determine which Army
actions normally require preparation of an Environmental Assessment
(EA) or an Environmental Impact Statement (EIS), and lists Army actions
that are categorically excluded from the requirements to prepare an EA
or EIS.
(c) This regulation supplements the Code of Federal Regulations (40
CFR parts 1500-1508), and must be read in conjunction with it.
Sec. 651.3 Definitions.
(a) Proponent. The proponent is the Army office, DoD or non-DoD
Federal agency, state or local agency, organization, or individual that
proposes an action requiring Army approval.
(b) Decision maker. The decision maker is the Army official who has
the primary authority to approve NEPA documents, make decisions, and
commit government resources to a course of action.
(c) Program, Product, and Project Managers. Managers of Acquisition
Categories (ACAT) I, II, III, & IV programs as defined by Department of
Defense Instruction (DoDI) 5000.2.
(d) Major Decision Point. Review points in the development of a
project/program at which decisions are made whether to proceed. For the
acquisition process, these would be the major milestones as defined in
DoD Instruction 5000.2.
Sec. 651.4 Responsibilities.
(a) The Secretary of the Army (SA) has designated the Assistant
Secretary of the Army (Installations, Logistics and Environment)
(ASA(IL&E)) as the Army's responsible official for NEPA matters.
(b) The Assistant Secretary of the Army (Research, Development, and
Acquisition) will:
(1) In conjunction with the Assistant Secretary of the Army
(Installations, Logistics, and Environment), manage the environmental
compliance of materiel systems.
(2) Develop and implement a process to prepare, review, approve,
and catalog NEPA documents for the acquisition and development of Army
materiel.
(c) The Deputy Chief of Staff for Operations and Plans (DCSOPS)
will assign proponent responsibilities as required when multiple MACOM
or Headquarters offices are involved in a proposal.
(d) The Assistant Chief of Staff for Installation Management
(ACSIM) is responsible for coordinating and monitoring NEPA activities
within the Army. The Environmental Programs Directorate is the Army
Staff (ARSTAF) point of contact (POC) for environmental matters.
(e) The Director of Environmental Programs will--
(1) Assist Army agencies in completing environmental analysis and
documentation.
(2) Review, as requested, environmental documents submitted by
Army, other DoD components, and other Federal agencies.
(3) Monitor proposed Army policy and program documents that have
environmental implications to determine compliance with NEPA
requirements and to ensure integration of environmental considerations
into the decision making process.
(4) Maintain liaison with the Office of the Secretary of Defense,
Office of Management and Budget, Council on
[[Page 37867]]
Environmental Quality (CEQ), Environmental Protection Agency (EPA), and
other Federal, state, and local agencies on environmental policies that
may affect the Army. This liaison assists in identifying and evaluating
applicable regulatory policies for proposed actions.
(f) The Assistant Secretary of the Army (Financial Management) will
develop requirements for environmental budget exhibits and displays of
data in support of annual authorization and appropriation requests.
(g) The General Counsel (GC) provides legal advice to the Secretary
of the Army on all environmental matters, to include interpretation and
compliance with NEPA and implementing regulations.
(h) The Judge Advocate General (TJAG) will provide legal advice and
assistance in interpretation of NEPA and Federal implementing
regulations, and other applicable statutes.
(i) The Surgeon General will review, as requested, the health and
welfare aspects of proposals.
(j) The Chief of Public Affairs will:
(1) Provide guidance on issuing public announcements such as
Findings of No Significant Impact (FONSI), Notices of Intent (NOI),
scoping procedures, Notices of Availability (NOA), and other public
involvement activities.
(2) Review and coordinate planned announcements on actions of
national interest with appropriate ARSTAF elements and the Assistant
Secretary of Defense for Public Affairs (OASD (PA)).
(3) Assist in the issuance of appropriate press releases to
coincide with the publication of notices in the Federal Register.
(k) The Chief of Legislative Liaison will notify members of
Congress of impending proposed actions of national concern or interest.
The Chief will--
(1) Provide guidance on issuing congressional notifications on
actions of national concern or interest.
(2) Review planned congressional notifications on actions of
national concern or interest.
(3) Prior to and in concert with the issuance of press releases and
publications in the Federal Register, assist in the issuance of
congressional notifications on actions of national concern or interest.
(l) Commanders of Major Army Commands (MACOM), the Chief, National
Guard Bureau, and the U.S. Army Reserve Commander will--
(1) Monitor proposed actions and programs within their commands to
ensure compliance with this regulation.
(2) Task the appropriate proponent with funding and preparation of
NEPA documents and development of public involvement activities.
(3) Ensure that the proponent initiates the preparation of
necessary environmental documentation and assesses the environmental
consequences of proposed programs and projects early in the planning
process.
(4) Assist in the review of environmental documents prepared by DoD
and other Army or Federal agencies, as requested.
(5) Establish and maintain the capability (personnel and other
resources) to comply with the requirements of this regulation.
(6) Maintain official record copies of all environmental documents
for which they are the staff proponent.
(7) Provide coordination with HQDA for proposed actions of national
interest.
(8) Approve environmental impact statements and associated
documents (NOI, NOA, ROD) for actions under their purview.
(9) Office of the Chief of the National Guard Bureau is responsible
for approving all Federal environmental documents prepared by all Army
National Guard activities.
(m) Major Subordinate Commands, Installations (Base Operations
(BASEOPS) Army Reserve Command (ARCOM), activity (facility), unit (non-
BASEOPS Major U.S. Army Reserve Command (MUSARC) commanders and The
Adjutants General (TAG) will:
(1) Monitor proposed actions and programs within their commands to
ensure compliance with this regulation.
(2) Task the appropriate proponent with funding and preparation of
NEPA documents and development of public involvement activities.
(3) Ensure that the proponent initiates the preparation of
necessary environmental documentation and assesses the environmental
consequences of proposed programs and projects early in the planning
process.
(4) Assist in the review of environmental documents prepared by DoD
and other Army or Federal agencies, as requested.
(5) Establish and maintain the capability (personnel and other
resources) to comply with the requirements of this regulation.
(6) Maintain official record copies of all environmental documents
for which they are the staff proponent.
(7) Provide coordination for proposed actions of national interest.
(8) Approve environmental documents for actions under their purview
(does not include TAG).
(n) The Army Acquisition Executive (AAE) will:
(1) Administer acquisition programs to ensure compliance with all
applicable environmental laws, executive orders, and regulations.
(2) Ensure that life cycle environmental costs are an integral part
of system life cycle cost estimates.
(o) Program Executive Officers (PEO) and direct-reporting PMs will:
(1) Supervise assigned programs, projects, and products to ensure
that they comply with all applicable environmental laws, executive
orders, and regulations.
(2) Ensure that environmental considerations are integrated into
assigned systems planning process and systems engineering process.
(3) Approve environmental impact statements and associated
documents (NOI, NOA, ROD) for actions under their purview.
(p) Program, Project, and Product Managers will:
(1) Manage compliance with all applicable environmental laws,
executive orders, and regulations for assigned programs, projects, and
products.
(2) Integrate environmental considerations into the systems
planning process and systems engineering process.
(3) Apply policies and procedures set forth in this regulation to
programs and actions within their organizations and staff
responsibility.
(4) Initiate the preparation of environmental documentation and
assess the environmental consequences of proposed programs and
projects.
(5) Establish and maintain the capability (personnel and other
resources) to comply with the requirements of this regulation.
(6) Prepare and maintain the official record copy of all
environmental documents for which they are the proponent.
(q) Proponents at all levels will:
(1) Ensure that NEPA documents are prepared and staffed to the
satisfaction of the decision maker.
(2) Ensure accuracy and adequacy of environmental impact analyses
and documents regardless of the author.
(3) Adequately fund and implement the decision.
Sec. 651.5 Policies
(a) DA policy is to balance military mission activities, including
materials and industrial processes, with the capabilities of the
installations and surrounding communities. Decision makers will be
cognizant of the impact of their decisions upon the environment, and
will reduce undue and unnecessary adverse impacts to the extent
feasible.
(b) When appropriate, environmental documentation to consider
operations
[[Page 37868]]
security principles and procedures described in AR 530-1 will be
reviewed and documented on the cover sheet or signature page.
(c) Environmental analyses and associated investigations are
advanced project planning, and will be funded from other than military
construction (MILCON) funds. Operations and Maintenance/Operation and
Maintenance, ARNG (OMA/OMAR), Research, Development, Test, and
Evaluation (RDTE) or other operating funds are the proper sources of
funds for analysis and documentation. Alternative funds will be
identified for environmental documentation, monitoring, and other
required studies as part of the MILCON approval process.
(d) Costs of design and construction mitigation measures required
as a direct result of MILCON projects will be paid from MILCON funds if
included in the cost estimate and description of work on DD Form 1391.
(e) Ongoing Army activities require an environmental analysis when
significant new circumstances warrant consideration of changing the
activity. For example, the listing of a new species as endangered may
indicate, per consultation under the Endangered Species Act, the
modification of a training regime or major modification of an existing
weapons system.
(f) Environmental analyses will reflect due consideration of non-
statutory environmental issues implemented by Federal and DoD plans and
standards. Potential issues will be discussed and critically evaluated
during scoping and other public involvement processes. Some examples
are the issues articulated in Executive Order 12898, Federal Actions to
Address Environmental Justice in Minority Populations and Low-Income
Populations; and Executive Order 12856, Federal Compliance with Right-
to-Know Laws and Pollution Prevention Requirements.
(g) Consideration of the environment for decisions involving
activities outside the United States (see Applicability) will be
accomplished pursuant to Executive Order No. 12114, host country final
governing standards, and DoD Directives and Instructions.
Subpart B--The National Environmental Policy Act of 1969 (NEPA) and
Decision Processes
Sec. 651.6 Introduction.
(a) NEPA establishes broad Federal policies and goals for the
protection of the environment. Section 102(2) contains procedural
requirements directed toward the attainment of such goals.
(b) The NEPA process is the systematic examination of probable
environmental consequences of implementing a proposed action and
reasonable alternatives. To be effective, integration of the NEPA
process with other Army project planning will occur at the earliest
possible time to ensure that:
(1) Planning and decision making reflect environmental values.
(2) Policies listed in paragraph 1-5 are implemented.
(3) Delays and potential conflicts in the process are minimized.
(4) Evaluation of environmental effects, values and issues is in
sufficient detail for consideration concurrently with economic,
technical, and mission-related analyses. When EISs are undertaken, the
economic and social impacts will be included in the analysis of total
environmental impacts. However, economic and social impacts alone
(i.e., without accompanying natural or physical impacts) do not
necessitate the preparation of an environmental document for an Army
action.
Sec. 651.7 Actions requiring evaluation.
The general types of proposed actions to evaluate for environmental
impact include:
(a) Management and operational concepts and programs, including
such areas as logistics, research, development, test and evaluation,
procurement, and real property and facility management.
(b) Projects, including facilities construction, research and
development for weapons, vehicles, and other equipment or activities.
(c) Operations, including individual and unit training, flight
operations, overall operation of installation, or facility test and
evaluation programs.
(d) Licenses for operations or special material use, including
Nuclear Regulatory Commission (NRC) license, an Army radiation
authorization, or Federal Aviation Administration (FAA) Air Space
request.
(e) Materiel development, acquisition, and/or transition.
(f) Research and development, including such areas as genetic
engineering, laser testing, and electromagnetic pulse generation.
(g) Actions supported through Federal contracts, grants, subsidies,
loans, or other forms of funding such as Government Owned-Contractor
Operated (GOCO) industrial plants and construction of family housing
via third party contracting (Section 801/802 Housing, Military
Appropriations Act of 1984).
(h) Leases, easements, permits, licenses, certificates, or other
entitlement for use.
(i) Environmental Remediation/Restoration projects not addressed in
paragraph 2-3(b) below.
Sec. 651.8 Exemptions, exceptions, and emergency procedures.
(a) Exemption by Law. The law must apply to DoD and/or Army and
must prohibit, exempt, or make impossible full compliance with the
procedures of NEPA (40 CFR 1500.6).
(b) Environmental Remediation/Restoration projects implemented in
accordance with the Comprehensive Environmental Response, Compensation,
and Liability Act (CERCLA) shall not be assessed under NEPA.
(c) Emergencies.
(1) In the event of an emergency, the Army may be required to take
immediate actions that have environmental impacts. These immediate
actions are necessary to promote national defense or security, or to
protect life or property. In such cases, the HQDA proponent will notify
the Environmental Programs Directorate, which in turn will notify the
Assistant Secretary of the Army for Installations, Logistics and
Environment (ASA (I,L&E)), who will coordinate with the Deputy Under
Secretary of Defense (Environmental Security) (DUSD(ES)) and CEQ
regarding actions necessary to control the immediate effects of the
emergency. In no event will the Army delay an emergency action
necessary for national defense, security, or preservation of human life
or property to comply with this regulation or the CEQ Regulations.
Call-ups of the ARNG during state emergencies are state actions
excluded from the requirements of this regulation.
(2) These notifications and consultations apply only to actions
necessary to control immediate effects of the emergency; other actions
remain subject to NEPA review (40 CFR 1506.11).
Sec. 651.9 Integration with Army Planning.
(a) Environmental considerations will be integrated into the Army's
decision making processes to ensure that:
(1) The planning process identifies major decision points for
principal programs and proposals that are likely to have an effect on
the environment.
(2) Decision makers are informed of and consider the environmental
consequences at the same time as other factors such as mission
requirements and cost.
[[Page 37869]]
(3) Environmental documents accompany the proposal through the
existing Army review and decision making processes. The Army will
integrate NEPA requirements with other planning and environmental
review procedures.
(4) The alternatives considered in the decision are within the
range of alternatives analyzed in relevant environmental documents.
(b) Proponents are responsible for providing funds for NEPA
documentation, and for implementation of decisions including
mitigations (regardless of the level of NEPA analysis).
(c) The Army acquisition community will integrate environmental
analyses into its decision making process and will further ensure that
appropriate environmental life cycle costs become an integral part of
total program cost estimates and budgets. PEOs, and Program, Product,
and Project Managers will integrate the NEPA process along with other
program planning at the earliest possible time to ensure that
acquisition planning and decisions reflect environmental values and
considerations. During the planning process, materiel acquisition
proponents will, as early as possible, determine the type of
environmental analyses that will be required throughout the life cycle
of their assigned program and identify appropriate funding.
Sec. 651.10 Classified actions.
(a) For proposed actions and environmental documents involving
classified information, AR 380-5 will be followed.
(b) Classification does not relieve a proponent of the requirement
to assess and document the environmental effects of a proposed action.
(c) For cases where classified information can be reasonably
separated from other information, and a meaningful environmental
analysis produced, unclassified documents will be prepared and
processed in accordance with this regulation. Classified portions will
be kept separate and provided to reviewers and decision makers in
accordance with AR 380-5.
(d) For cases where classified information is such an integral part
of the analysis of a proposal that a meaningful unclassified
environmental document cannot be produced, the proponent, in
consultation with the appropriate security and environmental offices,
will form a team to review classified environmental documents.
Subpart C--Army NEPA and NEPA-Related Documents
Sec. 651.11 Environmental Assessment (EA).
The EA provides the proponent, the public, and the decision maker
with sufficient evidence and analysis for determining whether
environmental impacts are significant. The EA ensures compliance with
NEPA when an environmental impact statement (EIS) is not required and a
categorical exclusion (CX) is inappropriate, and facilitates
preparation of an EIS if required.
Sec. 651.12 Finding of No Significant Impact (FONSI).
The FONSI is a decision document that briefly states why an action
will not significantly affect the environment, and that an EIS will not
be prepare(d). The FONSI includes a summary of the EA and notes any
related environmental documents. If the EA is attached, the FONSI need
not repeat any of the EA discussion, but may incorporate it by
reference.
Sec. 651.13 Notice of Intent (NOI).
The NOI is a notice published by the Army in the Federal Register
to inform the public that an EIS will be prepare(d). An NOI may also be
prepared for environmental assessments involving actions of national
interest.
Sec. 651.14 Environmental Impact Statement (EIS).
The EIS is a public document designed to ensure that NEPA policies
and goals are incorporated early into the programs and actions of
Federal agencies. An EIS is intended to provide a full, open, and
balanced discussion of significant environmental impacts. Along with
other project documentation, the EIS provides a basis for informed
decision making.
Sec. 651.15 Record of Decision (ROD).
The ROD is a concise public record of the decision and rationale
following completion of an EIS.
Sec. 651.16 Notice of Availability (NOA).
The NOA is a notice published by the Army in the Federal Register
to inform the public that an environmental document is available for
review. An NOA may be published for draft and final EISs (including
supplements), and will be published for RODs with national interest. An
NOA will also be published for environmental assessments of national
interest. This agency NOA should not be confused with EPA's notice of
availability of weekly receipts of EISs (NWR).
Sec. 651.17 Notice of Availability of Weekly Receipts of EISs (NWR).
This notice is published by the EPA and officially begins the
public review periods. The NWR is published each Friday, and lists the
EISs that were filed the previous week.
Sec. 651.18 Record of Environmental Consideration (REC).
A REC briefly describes the proposed action, identifies the
proponent and approving officials(s), and records the analysis for the
use of categorical exclusions (CX) that require such documentation.
There is no required format of a REC as long as the information above
is included.
Subpart D--Categorical Exclusions (CXs)
Sec. 651.19 General.
(a) Categorical exclusions are categories of actions with no
significant individual or cumulative effect on the human environment,
and for which neither an EA nor EIS is require(d). The use of a CX is
intended to reduce paperwork and eliminate delays in the initiation and
completion of proposed actions.
(b) Army installations and materiel developers are required to
prepare many types of management plans that should be environmentally
assessed (e.g., capital investment strategy, historic preservation,
natural resources etc.). In cases where activities are adequately
assessed as part of these normal planning processes, CXs should be
needed only infrequently to cover unanticipated proposals.
Sec. 651.20 Determining when to use a CX.
(a) To use a CX, the proponent must:
(1) Identify a CX (or multiple CXs) that encompasses the proposed
action.
(2) Ensure that the action has not been segmented to meet the
definition of a CX. This means that the whole proposal must be
considered (e.g., the operations of a construction project must be
taken into account).
(3) Apply the following screening criteria to determine if the
action involves extraordinary circumstances which would preclude the
use of a CX:
(i) Potential to adversely effect public health, safety or the
environment.
(ii) Possible significant cumulative effects, direct or indirect.
(iii) Impose uncertain or unique risks.
(iv) Greater scope or size than is normal for this category of
action.
(v) Reportable releases of hazardous or toxic substances as
specified by Section 102 of the Comprehensive Environmental Response
Compensation and Liability Act (CERCLA).
[[Page 37870]]
(vi) Discharges of petroleum, oils, and lubricants (POLs) or
radioactive substances.
(vii) Generation of noise which causes the existing C-weighted day-
night levels (CDNL) 62 dB or A-weighted day-night levels (ADNL) 65 dB
noise contours to expand within or into noise sensitive land use areas.
Generation of noise which increases the CDNL or ADNL in noise sensitive
land uses by more than 1.5 dB.
(viii) When air emissions exceed de minimis levels and a formal
Clean Air Act conformity determination is required.
(ix) Potential to violate any Federal, state, or local
environmental law, regulation, or ordinance.
(x) More than minor, or unresolved adverse effect on
environmentally sensitive resources.
(b) Environmentally sensitive resources include:
(1) Federally listed candidate, threatened, or endangered species
or their habitats;
(2) Properties listed on or eligible for the National Register of
Historic Places;
(3) Areas having special designation or recognition such as prime
or unique agricultural lands off Army property; coastal zones;
designated wilderness or wilderness study areas; wild and scenic
rivers; national landmarks; 100-year floodplains; wetlands; sole source
aquifers which are potential sources of drinking water; refuges; parks;
or other areas of high environmental sensitivity;
(4) Sacred sites (IAW American Indian Religious Freedom Act).
(c) The use of a CX does not relieve the proponent from compliance
with other statutes, such as consultations under the Endangered Species
Act or the National Historic Preservation Act. Such consultations may
be required to determine the applicability of screening criteria.
Sec. 651.21 List of Categorical Exclusions (CXs).
(a) For convenience only, the CXs are listed under common types of
activities (e.g., administration/operation, construction/demolition,
and repair and maintenance). Certain CXs require a REC, which will be
completed and signed by the proponent. Concurrence on the use of a CX
by the installation environmental coordinator (EC) or other appropriate
EC (e.g., MSC or MACOM) is required. The list of CXs is subject to
continual review and modification. Requests for additions or changes to
the CXs should be sent to the Environmental Programs Directorate.
Subordinate Army headquarters may not modify the CX list through
supplements to this regulation. The proposed modifications to the list
of CXs will be published in the Federal Register by HQDA to provide an
opportunity for public comment.
(b) Administration/Operation Activities:
(1) Routine law and order activities performed by military/military
police and physical plant protection and security personnel.
(2) Preparing, revising, or adopting regulations, instructions,
directives, and plans that implement, without substantial change,
regulations, instructions, directives.
(3) Routine operation of existing facilities and laboratories.
(4) Normal fiscal, administrative, recreation and welfare
activities.
(5) Reductions in force and unit redesignations.
(6) Routine activities of personnel and equipment in facilities
which are compatible with the existing uses.
(7) Deployment of military units on a temporary duty (TDY) or
training basis where existing facilities are used for their intended
purposes.
(8) Administrative personnel-related studies.
(9) Non-construction activities in support of other agencies/
organizations involving community participation projects and law
enforcement activities.
(10) Routine military ceremonies, funerals, and concerts. Special
events such as State-funerals, to include flyovers.
(11) Routine administrative reorganizations and consolidations.
(12) Actions which fall under another Federal agency's list of
categorical exclusions when the other Federal agency is the lead agency
and the Army is the cooperating agency (REC required).
(c) Construction and Demolition:
(1) Construction of an addition to an existing structure or
facility, and new construction which does not involve more than 5.0
cumulative acres of new surface disturbance. New construction does not
include facilities for the transportation, distribution, use, storage,
treatment, and disposal of solid waste, medical waste, and hazardous
waste (REC required).
(2) Demolition and disposal of buildings, structures, or other
improvements, or removal of part thereof for demolition and disposal in
accordance with applicable regulations, including those regulations
applying to removal of asbestos, polychlorinated biphenyls (PCBs), lead
base paint, and other hazardous materials (REC required).
(3) Road and trail construction that involves no more than 5.0
acres of new surface disturbance.
(d) Cultural and Natural Resource Management Activities:
(1) Routine maintenance of timber stands, including tree removal
and pruning.
(2) Timber harvest activities which remove 250,000 board feet or
less of merchantable wood products or salvage as a negotiated timber
sale (REC required).
(3) Land regeneration activities of native trees and vegetation,
including site preparation (REC required).
(4) Routine maintenance of streams (in accordance with U.S. Army
Corps of Engineers' permit authority under Section 404 of the Clean
Water Act and applicable state and local permits), and erosion control
and storm water control structures in accordance with management plans.
(5) Policy and control measures for pest control/removal in
accordance with pest management plans (REC required).
(6) Hunting and fishing policies or regulations that are consistent
with State and local regulations.
(7) Studies, data collection, and information gathering which does
not involve major surface disturbance. Examples include topographic
surveys, bird counts, wetland mapping, and other resources inventories.
(8) Routine maintenance of fish and wildlife habitat.
(9) Routine monitoring of fish and wildlife populations. Examples
include radio collaring, gill netting and counts.
(10) Reintroduction of endemic or native species (other than
endangered or threatened species) into historic habitat (REC Required).
(11) Maintenance of existing archaeological and historical
avoidance markers, fencing, and signs.
(12) Archaeological surveys, inventories, and minor field
excavations.
(e) Procurement and Contract Activities:
(1) Routine procurement of goods and services, including routine
utility services and contracts for services and goods.
(2) Acquisition, installation, and operation of utility and
communication systems, data processing cable and similar electronic
equipment which use existing right-of-way, easement, distribution
systems, and/or facilities (REC required).
(3) Conversion of commercial activities under the provisions of
Army Regulation 5-20.
(4) Modification, product improvement, or configuration
[[Page 37871]]
engineering design change to materiel, structure or item that does not
change the original impact of the materiel, structure or item on the
environment (REC required).
(5) Procurement, testing, use, and/or conversion of a commercial
product (e.g., forklift, generator, chain saw, etc.) which does not
meet the definition of a weapon system (Part 15, DoDI 5000.2), and does
not result in any unusual disposal problem.
(f) Real Estate Activities:
(1) Grants, acquisitions, and renewal of easements for the use of
existing rights-of-way for use by vehicles; electrical, telephone, and
other transmission and communication lines; transmitter and relay
facilities; water, wastewater, stormwater, irrigation pipelines,
pumping stations, and facilities; and for similar public utility and
transportation uses (REC required).
(2) Grants, acquisitions, and renewal or termination of leases,
licenses, agreements, and permits for use of real property for its
intended uses. Examples include, but are not limited to the following:
existing Army controlled property and Army leases of civilian property
for its intended uses to include leases of classroom, office, or
warehouse space leased by a unit for that purpose (REC required).
(3) Disposal of excess easement areas to the underlying fee owner
(REC required).
(4) Transfer of real property to or from another military
department, or other Federal agency if there is no intended or
anticipated significant land use change (REC required).
(5) Transfer of installation utilities to a commercial or
governmental utility.
(6) Acquisition and disposal of land not to exceed 40 acres;
includes facilities on site (REC required).
(7) Timber harvest activities which remove 250,000 board feet or
less of merchantable wood products or salvage as part of an otherwise
categorically excluded real estate transaction or other activity (REC
required).
(g) Repair and Maintenance Activities:
(1) Routine repair and maintenance of buildings, airfields,
grounds, equipment, and other facilities. Examples include, but are not
limited to: Removal and disposal of asbestos-containing material (e.g.,
roof material and floor tile) or lead based paint, and repair of roofs,
doors, windows, or fixtures.
(2) Routine repairs and maintenance of roads, trails, and
firebreaks. Examples include, but are not limited to: grading and
clearing the roadside of brush with or without the use of herbicides;
resurfacing a road to its original conditions; pruning vegetation and
cleaning culverts; and minor soil stabilization activities.
(h) Hazardous Materials/Hazardous Waste Management and Operations:
(1) Use of gauging devices, analytical instruments, and other
devices containing sealed radiological sources; industrial radiography;
use of radioactive material in medical and veterinary practices;
possession of radioactive material incident to performing services such
as installation, maintenance, leak tests and calibration; use of
uranium as shielding material in containers or devices; and use of
radioactive tracers (REC required).
(2) Emergency responses in accordance with emergency response plans
(e.g., Spill Prevention Control and Countermeasure Plan (SPCC)/
Installation Spill Contingency Plan, and Chemical Accident and Incident
Response Plan) as required by the regulatory agency responsible for
release or discharge of oil or hazardous materials/substances; or
emergency actions taken by Explosive Ordnance Demolition (EOD)
detachment or Technical Escort Unit.
(3) Sampling, surveying, well drilling and installation, analytical
testing, site preparation, and intrusive testing to determine if
hazardous wastes, contaminants, or pollutants are present.
(4) Routine management to include transportation, distribution,
use, storage, treatment, and disposal of solid waste, medical waste,
hazardous waste and/or material that complies with EPA, Army, or other
regulatory agency requirements. This CX is not applicable to new
construction of such facilities.
(5) Routine management of solid waste, hazardous waste, and/or
material recycled, reclaimed, reused, or recovered in accordance with
EPA or other applicable regulatory agency requirements. This CX is not
applicable to major new construction.
(6) Routine research, testing, and operations conducted at
established laboratories, to include contractor-operated laboratories.
This does not include laboratories constructed for Biosafety Level 3 or
Biosafety Level 4.
(7) Conduct and maintenance requirements for silver recovery,
alternative sterilization systems, and alternatives for regulated
medical waste treatment methodology (REC required).
(8) Disposal of waste and facilities which require a state or
Federal permit and specific disposal methods are dictated by the
regulating agency (e.g., asbestos, PCBs, and underground storage
tanks).
(9) Reutilization, marketing, distribution, donation, and resale of
items, equipment, or materiel; normal transfer of items to the Defense
Logistics Agency. Items, equipment, or materiel that have been
contaminated with hazardous materials will be adequately cleaned and
will conform to the applicable regulatory agency's requirements.
(i) Training and Testing
(1) On-post simulated war games and other tactical and logistical
exercises involving units of battalion size or smaller.
(2) Training entirely of an administrative or classroom nature.
(3) Intermittent on- and off-post training activities that involve
no live fire or vehicles off established roads or trails. Uses include,
but are not limited to: Land navigation, physical training, FAA
approved aerial overflights, and small unit level training. (REC
required for off-post activities).
(4) Testing of materiel, including off-the-shelf materiel, on DA
controlled real estate where the tests are conducted in conjunction
with the normal execution of the test and evaluation mission (REC
required).
(j) Aircraft and Airfield Activities
(1) Infrequent, temporary (less than 30 days) increases in air
operations up to 50 percent of the typical installation aircraft
operation rate.
(2) Flying activities in compliance with Federal Aviation
Regulations, that are dispersed over a wide area and do not frequently
(more than once per day) pass near the same ground points.
(3) Installation of remote transmitter or receiver facilities on
the installation, or addition of communication channels to existing
facilities.
(4) Installation or upgrade of airfield equipment (e.g., runway
visual range equipment, visual approach slope indicators).
(5) Participation in airshows.
Subpart E--Environmental Assessments (EAs)
Sec. 651.22 Conditions and Actions Normally Requiring an EA.
An EA is a document intended to help proponents and other decision
makers determine the extent of environmental impacts of a proposed
action, alternatives, and whether those impacts are significant. An EA
will be prepared if a proposed action:
(a) Is not an emergency;
(b) Is not exempt or an exception;
(c) Does not qualify as a categorical exclusions (CX); and
(d) Does not qualify for environmental impact statement (EIS)
criteria or actions.
[[Page 37872]]
Sec. 651.23 EA Format.
Environmental Assessments will include:
(a) Review and approval page.
(b) Purpose and need for the action.
(c) Description of the proposed action.
(d) The alternatives considered, including appropriate
consideration of the no-action alternative.
(e) Affected environment.
(f) Environmental consequences of the proposed action and the
alternatives. Discussion of impacts should provide sufficient analysis
to reach a conclusion of ``significance'', and not be merely a
quantification of facts.
(g) Conclusions regarding the significance of impacts, and a
recommendation whether to proceed with an EIS.
(h) Listing of agencies and persons consulted.
(i) References.
Sec. 651.24 Finding of No Significant Impact (FONSI).
(a) An EA results in either a FONSI or a Notice of Intent (NOI) to
prepare an EIS. Initiation of a NOI to prepare an EIS should occur at
any time in the decision process when it is determined that significant
effects may occur as a result of the proposed action.
(b) The FONSI is a formal document that:
(1) Briefly states the decision and the reasons why the decision
will not have a significant effect on the human environment.
(2) Summarizes mitigation commitments (costs and resources required
to complete a mitigation measure).
(3) Explicitly states that an EIS will not be prepared.
(c) The FONSI will either contain a summary of the EA, or have the
EA attached and incorporated by reference.
(d) The FONSI should reference other documents used to make the
decision or finding of no significant impact.
Sec. 651.25 Review and Approval of EAs and FONSIs.
(a) The proponent is responsible for preparing, staffing,
processing (e.g., distributing for comment) and approving the EA with
the concurrence of the decision maker.
(b) The proponent is responsible for preparing and staffing the
FONSI. The decision maker or designee is responsible for approving and
signing the FONSI.
Sec. 651.26 Public Involvement.
(a) Agencies, applicants, local governments, organizations, the
general public, and other interested and affected parties will be
involved as appropriate in the development of a proposal and
preparation of an EA. When considering the type and extent of public
notice and involvement, some of the factors to be weighed are:
(1) Magnitude of the proposed project/action.
(2) Extent of anticipated public interest, based on experience with
similar proposals.
(3) Urgency of the proposal.
(4) National security classification.
(b) Public involvement should begin early in the proposal
development stage, and during preparation of an EA. The direct
involvement of agencies with jurisdiction or special expertise is an
integral part of impact analysis, and provides information and
conclusions for incorporation into EAs. Unclassified documents
incorporated into the EA or FONSI by reference are public documents.
(c) Copies of public notices, ``scoping'' letters, EAs and FONSIs,
and other documents routinely sent to the public will be sent directly
to appropriate Congressional state and district offices.
(d) All EAs will be made available for at least a 30-day public
comment period prior to approval of the FONSI, except as provided in
paragraph (e) of this section.
(e) The next higher level of authority may waive the 30-day comment
period if all of the following conditions are met:
(1) Delay would jeopardize the Army's mission or an applicant's
ability to implement a proposal; and
(2) The EA/FONSI have been sufficiently staffed within the Army and
with agencies with special expertise or with authority over an aspect
of the proposal; and
(3) The action does not involve wetlands, floodplains, or the
circumstances and actions described in 40 CFR 1501.4(e)(2). Appropriate
public notice of the availability of the completed EA and approved
FONSI shall be made.
Sec. 651.27 Mitigation and Implementation Plan.
(a) Throughout the NEPA process, the proponent will consider
mitigating measures to avoid or minimize environmental harm. Mitigation
measures or programs will be clearly assessed in the EA and identified
in the FONSI for the decision maker to approve. Mitigation committed to
as part of the decision will be implemented by the proponent; for
purposes of identifying funding requirements, mitigations should be
ranked on a priority basis.
(b) An EA may have a no significant impact conclusion because of
specific mitigation measures. Such key measures must be accomplished in
the stated time frame to support the no significant impact conclusion,
or the significance of the project impacts must be reevaluated.
Subpart F--Environmental Impact Statements (EISs)
Sec. 651.28 Introduction.
An EIS is a public document designed to ensure that NEPA policies
and goals are incorporated early into the programs and actions of
Federal agencies. An EIS is intended to provide a full, open, and
balanced discussion of significant environmental impacts that may
result from a proposed action. Along with other project documentation,
the EIS provides a basis for informed decision making.
Sec. 651.29 Conditions Requiring an EIS.
In determining if an EIS is appropriate, the proponent should
consider whether the proposed action has the potential to:
(a) Significantly degrade environmental quality or public health or
safety.
(b) Significantly adversely affect historic or archaeological
resources, public parks and recreation areas, wildlife refuge or
wilderness areas, wild and scenic rivers, or aquifers.
(c) Significantly adversely impacts properties listed or meeting
the criteria for listing in the National Register of Historic Places,
or the National Registry of Natural Landmarks.
(d) Significantly adversely impact prime and unique farmlands
located off-post, wetlands, floodplains, coastal zones, or ecologically
important areas or other areas of unique or critical environmental
sensitivity.
(e) Result in significant or uncertain environmental effects, or
unique or unknown environmental risks.
(f) Significantly adversely affect a species or habitat listed or
proposed for listing on the Federal list of endangered or threatened
species, and Federal candidate species.
(g) Either establish a precedent for future action or represent a
decision in principle about a future consideration with significant
environmental effects.
(h) Adversely interact with other actions with individually
insignificant effects so that cumulatively significant environmental
effects result.
(i) Involve the production, storage, transportation, use, treatment
and disposal of hazardous or toxic materials to include medical wastes
that may have significant environmental impact.
[[Page 37873]]
Sec. 651.30 Actions Normally Requiring an EIS.
(a) The following actions normally require preparation of an EIS:
(1) Land acquisition greater than 640 acres.
(2) Construction of major ranges, such as multipurpose range
complexes (MPRCs).
(3) Expansion/Development of a central impact area.
(4) A Category I (major) weapons system acquisition program.
(5) Permanent restationing of a Brigade or larger (TOE) unit during
peacetime in the continental United States.
(6) Training activities where approved land use plans or regulatory
(e.g.; soil/land/water) plans or goals are exceeded.
(7) Master Plans for established installations where major new
developments or substantial changes in mission requirements are
proposed.
(8) Division or larger training activities conducted outside the
boundaries of an existing military reservation.
(9) Introduction or reintroduction of Federally listed endangered/
threatened species, or exotic species.
(10) Construction projects in a National Priorities List (NPL) site
or other major cleanup site that are not related to an environmental
restoration project.
(11) Proposal similar to past project or action that contributed to
or created a major cleanup action.
(12) Construction or location of a facility within a 100-year
floodplain where there is potential for significant release of
hazardous substances.
(13) Construction or upgrading of a laboratory to a Biosafety Level
4 (32 CFR part 627, App. G).
(14) Proposed action would create or expand an existing Noise Zone
III in a noise sensitive area.
(15) Construction of facility to store, treat, or dispose of large
quantities of chemical agents (e.g., mustard, sarin, tabun). Does not
include riot agents.
(b) While these are individual actions, one must consider the full
spectrum of actions that constitute a single proposed action. For
example, construction of a multipurpose range must also consider the
impacts of operations; land acquisition must consider the intended
uses.
Sec. 651.31 EIS Format.
The EIS must contain:
(a) Cover sheet.
(b) Summary.
(c) Table of contents.
(d) Purpose of and need for the action.
(e) Alternatives considered, including proposed action and no
action alternative.
(f) Affected environment (baseline conditions that may be
impacted).
(g) Environmental and socioeconomic consequences.
(h) List of preparers.
(i) Distribution list.
(j) Index.
(k) Appendixes (as appropriate).
Sec. 651.32 Approval Authority.
(a) The primary approval authority for EISs and related documents
(NOI, NOA) is the MACOM Commander, Program Executive Officer, Major
Subordinate Command Commander with Milestone Decision Authority for
acquisition/development programs, or HQDA equivalent for Army-wide
programs for which HQDA is the proponent.
(b) Approval authority may be delegated for actions that are
limited in scope (e.g., affect only one installation) and are without
apparent major controversy. This delegation extends to garrison
commanders and Program or Systems Managers).
(c) When delegating authority, consideration should be given to the
scope of the proposal, public/agency controversy and sensitivity, and
the capacity to adequately and objectively administer the analysis.
Sec. 651.33 Notice of Intent (NOI).
(a) The NOI initiates the formal scoping process, and is prepared
by the proponent.
(b) For proposed actions that are widely controversial, or of
national concern or interest, the Office, Chief of Legislative Liaison
(OCLL) shall be notified of the pending action so that appropriate
congressional coordination may be effected.
(c) The Office, Chief of Public Affairs, will coordinate public
announcements through its chain of command.
(d) The approved NOI shall be forwarded to the Army Federal
Register Liaison Officer for publication in the Federal Register.
Copies of the Notice may also be distributed to agencies,
organizations, and individuals who have expressed interest. A copy of
the approved NOI shall be forwarded to the Director of Environmental
Programs, HQDA.
Sec. 651.34 Scoping.
This scoping process identifies the significant issues related to a
proposed action. Issues which are not significant or which have been
covered by prior environmental review are identified and eliminated
from detailed study. Proper scoping also identifies reasonable
alternatives, essential participants, and information needed for
analysis. Affected Federal, state, and local agencies, affected Indian
Tribes, and other interested persons are included as part of the
scoping process. Proper scoping reduces the chances of overlooking
significant issues or reasonable alternatives, and increases public
confidence in the decision making process.
Sec. 651.35 Preparation and Processing of the Draft Environment Impact
Statement (DEIS).
(a) The proponent prepares draft environmental impact statements.
Following appropriate staffing and revisions, the DEIS is approved for
public release by the delegated authority.
(b) Following approval, the proponent will forward five copies of
the DEIS to EPA for filing and notice in the Federal Register;
publication of EPA's notice of availability of weekly receipts (NWR)
commences the public comment period. The proponent will distribute the
DEIS prior to, or simultaneous with, filing with EP(A) Distribution
will include appropriate Federal, state, regional and local agencies;
Native American tribes; and organizations and private citizens who have
expressed interest in the proposed action.
(c) For proposed actions that are widely controversial, or of
national concern or interest, the Office, Chief of Legislative Liaison
(OCLL) shall be notified of the pending action so that appropriate
congressional coordination may be effected.
(d) The Office, Chief of Public Affairs, will coordinate public
announcements through its chain of command.
(e) The proponent may prepare a separate Notice of Availability
(NOA) to be published in the Federal Register by the Army Federal
Register Liaison Officer, and in newspapers of general circulation in
the affected area(s). Publication should be on the same date as the EPA
publication.
Sec. 651.36 Public Review of the DEIS.
(a) The DEIS public comment period will be no less than 45 days. If
the statement is unusually long, a summary of the DEIS may be
circulated, with an attached list of locations where the entire DEIS
may be reviewed (for example, local public libraries).
(b) Distribution of the complete DEIS must include the following:
(1) Any Federal agency that has jurisdiction by law or special
expertise with respect to any environmental impact involved and any
appropriate Federal, state, or local agency
[[Page 37874]]
authorized to develop and enforce environmental standards.
(2) The applicant, if any.
(3) Any person, organization, or agency requesting the entire draft
environmental impact statement.
(c) News releases or public notices should be prepared and issued
to publicize any meetings or hearings that may be scheduled.
Sec. 651.37 Preparation of the Final Environmental Impact Statement
(FEIS).
(a) Response to comments. The proponent shall consider and respond
appropriately to public comments. Responses to comments on the DEIS
will be incorporated by modification of the text and/or written
explanation. Similar comments should be grouped for a common response.
(b) If the changes to the DEIS are exclusively clarifications or
minor factual corrections, a document consisting of only the DEIS
comments, responses to the comments, and errata sheets may be prepared
and circulated. If such an abbreviated FEIS is anticipated, the DEIS
should contain a statement advising reviewers to keep the document so
they will have a complete set of ``final'' documents. The final EIS to
be filed with EPA will consist of a complete document containing a new
cover sheet, the errata sheets, comments and responses, and the text of
the draft EIS. Coordination, approval, filing, and public notice of an
abbreviated FEIS is the same as for a draft EIS.
(c) If extensive modifications are warranted, the proponent will
prepare a new, complete FEIS. Preparation, coordination, approval,
filing, and public notice of the FEIS is the same as the process
outlined for the DEIS.
(d) The FEIS distribution must include any person, organization, or
agency that submitted substantive comments on the DEIS. One copy of the
FEIS will be forwarded to the U.S. Army Environmental Center.
(e) The FEIS will clearly identify the Army's preferred alternative
unless prohibited by law.
Sec. 651.38 Decision.
(a) No final decision on a proposed action will be made until at
least 30 days after EPA has published the NWR of the FEIS in the
Federal Register, or at least 90 days after the NWR of the DEIS,
whichever is later.
(b) The proponent will prepare a Record of Decision (ROD) for the
decision maker(s) signature, which will--
(1) Clearly state the decision. Describe the decision in sufficient
detail to address the significant issues and ensure long-term
monitoring and execution.
(2) Identify all alternatives considered by the Army in reaching
its decision, specifying the environmentally preferred alternative(s).
The Army will discuss preferences among alternatives based on relevant
factors including environmental, economic, and technical considerations
and agency statutory missions.
(3) Identify and discuss all such factors, including any essential
considerations of national policy that were balanced by the Army in
making its decision. Because economic and technical analyses are
balanced with environmental analysis, the agency preferred alternative
will not necessarily be the environmentally preferred alternative.
(4) State how those considerations entered into the final decision.
(5) State whether all practicable means to avoid or minimize
environmental harm from the selected alternative have been adopted, and
if not, why they were not. A monitoring and enforcement program will be
adopted and summarized for any mitigation.
(c) Implementation of the decision may begin immediately after
approval of the ROD.
(d) For RODs involving actions of national interest or concern, the
proponent will prepare a Notice of Availability (NOA) to be published
in the Federal Register by the Army Federal Register Liaison Officer.
Processing and approval of the NOA is the same as for an NOI.
(e) RODs will be distributed to agencies with authority or
oversight over aspects of the proposal, cooperating agencies,
appropriate Congressional state and district offices, all parties that
are directly affected, and others upon request.
(f) One copy of the ROD will be forwarded to the U.S. Army
Environmental Center.
(g) Implementing the Decision. The Army will ensure that its
decision is properly execute(d) Mitigation and other conditions
assessed in EISs and accepted as part of the decision will be
implemented by the proponent. The proponent will--
(1) Include appropriate conditions in grants, permits, or other
approvals.
(2) Ensure mitigation measures are properly resourced and
implemented.
(3) Upon request, inform cooperating or commenting agencies on the
progress in carrying out adopted mitigation measures that they have
proposed and that were adopted by the agency making the decision.
(4) Upon request, make the results of relevant monitoring available
to the public and Congress.
Sec. 651.39 Supplemental EISs (SEISs).
(a) An SEIS is an addition to a draft and/or final EIS that has
been filed; a supplement should not be considered a major revision to
an EIS. If the changes to a proposed action, circumstances, or analysis
are significant, a revised (new) EIS shall be prepared rather than a
supplemental EIS. A process of publishing ``supplements'' can become
confusing to reviewers, and should be done only when an analysis can be
substantially improved without confusion.
(b) SEISs are prepared, approved, filed, and given notice in the
same way as draft and final EISs.
(c) A Notice of Intent need not be published or amended, nor new
scoping undertaken, for a supplemental draft EIS that is expected to be
filed within one year from the date the original EIS being supplemented
(draft or final) was filed with EPA, and the affected publics are not
expected to change drastically (i.e., supplement does not involve
actions that may impact heretofore unaffected publics).
Sec. 651.40 The Army as a Cooperating Agency.
(a) The Army may be a Cooperating Agency:
(1) To provide information or technical expertise to a Lead Agency.
(2) To approve portions of a proposed action.
(3) To ensure the Army has an opportunity to be involved in an
action of another Federal agency which will affect the Army.
(b) Review and Approval of EISs and RODs
(1) Adequacy of an EIS is the responsibility primarily of the Lead
Agency. However, as a Cooperating Agency with approval authority over
portions of a proposal, the Army may adopt an EIS after a review
concludes the EIS adequately satisfies the Army's comments and
suggestions.
(2) If the Army is a major approval authority for the proposed
action, the appropriate Army official may sign the Record of Decision
prepared by the Lead Agency, or prepare a separate, more focused ROD.
If the Army's approval authority is only a minor aspect of the overall
proposal, such as issuing a temporary use permit, the Army need not
sign the Lead Agency's ROD nor prepare a separate ROD.
(3) The magnitude of the Army's involvement in the proposal will
determine the appropriate level and
[[Page 37875]]
scope of Army review of NEPA documents. If the Army is a major approval
authority or may be severely impacted by the proposal or an
alternative, the Army should undertake the same level of review as if
it were the Lead Agency; if the involvement is limited, the review may
be substantially less. The Lead Agency is responsible for overall
supervision of the EIS, and the Army will attempt to meet all
reasonable timeframes imposed by the Lead Agency.
Gregory D. Showalter,
Army Federal Register Liaison Officer.
[FR Doc. 96-17991 Filed 7-19-96; 8:45 am]
BILLING CODE 3710-08-P
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