issue-1996-07-25•Federal Register proposed rules — 1996-07-25
Federal Register proposed rules — 1996-07-25
issue-1996-07-25Federal Register proposed rules — 1996-07-25Proposed 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. 96-18952 Hazardous Materials in Intrastate Transportation; Access to Docket During Temporary Closure of Dockets Unit
[Federal Register Volume 61, Number 144 (Thursday, July 25, 1996)]
[Proposed Rules]
[Page 38702]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18952]
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DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Parts 171, 173 and 180
[Docket No. HM-200; Notice No. 96-14]
RIN 2137-AB37
Hazardous Materials in Intrastate Transportation; Access to
Docket During Temporary Closure of Dockets Unit
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Access to docket during temporary closure of Dockets Unit.
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SUMMARY: This notice announces an alternate location for information
contained in Docket HM-200 (Hazardous Materials in Intrastate
Transportation) during temporary closure of RSPA's Dockets Unit.
DATES: Written Comments: The closing date for written comments under
Notice No. 96-9 [61 FR 24904] remains August 16, 1996.
FOR FURTHER INFORMATION CONTACT: Jackie Smith or Diane LaValle, (202)
366-8553, Office of Hazardous Materials Standards, RSPA, Department of
Transportation, Washington, DC 20590.
SUPPLEMENTARY INFORMATION: In an effort to improve the indoor air
quality in the Nassif Building, 400 Seventh Street, SW., Washington, DC
20590, the U.S. Department of Transportation and the building's owner
have initiated a major cleaning project. This project entails a
thorough cleaning of the building on a floor-by-floor basis. During the
cleaning of each floor, the floor will be closed to employees and
visitors. It is estimated that the cleaning of each floor will take
approximately three weeks. During this three-week period, the offices
on each floor will be closed and the affected employees will be
relocated to another building. Once the cleaning of a floor is
complete, employees and visitors may return to that floor. RSPA's
Dockets Unit is located on the eighth floor. Cleaning of the eighth
floor is scheduled to begin on Monday, August 12, 1996 and last until
September 3, 1996. As a result, RSPA's Dockets Unit is scheduled to
close for approximately three weeks.
Because of the volume of materials in the Dockets Unit, it cannot
be relocated during the cleaning and will be closed. However, since the
comment period is open until August 16, 1996 under the supplemental
notice of proposed rulemaking, extension of comment period [61 FR
24904], Docket HM-200 will be relocated and made available for review
in Room 5414A of the Nassif Building, telephone (202) 366-4900. The
public may view this docket between the hours of 8:30 a.m. and 5:30
p.m., Monday through Friday, except Federal holidays.
Following completion of cleaning, Docket HM-200 will be returned to
the Dockets Unit in Room 8421 of the Nassif Building, 400 Seventh
Street, SW., Washington, DC, 20590-0001, telephone (202) 366-5046.
Issued in Washington, DC on July 19, 1996, under the authority
delegated in 49 CFR part 106, Appendix A.
Alan I. Roberts,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. 96-18952 Filed 7-24-96; 8:45 am]
BILLING CODE 4910-60-P
Complete official Federal Register PDF
FR Doc. 96-18936 Approval and Promulgation of State Implementation Plans; California State Implementation Plan Revision, Kern County Air Pollution Control District, Placer County Air Pollution Control District, Ventura County Air Pollution Control District, and San Joaquin Unified Air Pollution Control District
[Federal Register Volume 61, Number 144 (Thursday, July 25, 1996)]
[Proposed Rules]
[Pages 38682-38683]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18936]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CA 057-0009b; FRL-5527-7]
Approval and Promulgation of State Implementation Plans;
California State Implementation Plan Revision, Kern County Air
Pollution Control District, Placer County Air Pollution Control
District, Ventura County Air Pollution Control District, and San
Joaquin Unified Air Pollution Control District
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to approve revisions to the California State
Implementation Plan (SIP) which concern the control of volatile organic
compound (VOC) emissions from metal parts and products coating,
semiconductor manufacturing, petroleum refineries and chemical plants,
polyester resin material operations and decontamination of soil.
The intended effect of proposing approval of these rules is to
regulate emissions of VOCs in accordance with the requirements of the
Clean Air Act, as amended in 1990 (CAA or the Act). In the Final Rules
Section of this Federal Register, the EPA is approving the state's SIP
revision as a direct final rule without prior proposal because the
Agency views this as a noncontroversial revision amendment and
anticipates no adverse comments. A detailed rationale for this approval
is set forth in the direct final rule. If no adverse comments are
received in response to this proposed rule, no further activity is
contemplated in relation to this rule. If EPA receives adverse
comments, the direct final rule will be withdrawn and all public
comments received will be addressed in a subsequent final rule based on
this proposed rule. The EPA will not institute a second comment period
on this document. Any parties interested in commenting on this action
should do so at this time.
DATES: Comments on this proposed rule must be received in writing by
August 26, 1996.
ADDRESSES: Written comments on this action should be addressed to:
Daniel A. Meer, Rulemaking Section (A-5-3), Air and Toxics Division,
U.S.
[[Page 38683]]
Environmental Protection Agency, Region 9, 75 Hawthorne Street, San
Francisco, CA 94105-3901.
Copies of the rule revisions and EPA's evaluation report of each
rule are available for public inspection at EPA's Region 9 office
during normal business hours. Copies of the submitted rule revisions
are also available for inspection at the following locations:
California Air Resources Board, Stationary Source Divison, Rule
Evaluation Section, 2020 ``L'' Street, Sacramento, CA 95812
Kern County Air Pollution Control District, 2700 ``M'' Street, Suite
290, Bakersfield, CA 93301
Placer County Air Pollution Control District, 11464 B Avenue, Auburn,
CA 95603
Ventura County Air Pollution Control District, 669 County Square Drive,
Ventura, CA 93003
San Joaquin Unified Air Pollution Control District, 1999 Tuolumne
Street, Suite 200, Fresno, CA 93721.
FOR FURTHER INFORMATION CONTACT: Daniel A. Meer, Chief, Rulemaking
Section (A-5-3), Air and Toxics Division, U.S. Environmental Protection
Agency, Region 9, 75 Hawthorne Street, San Francisco, CA 94105-3901,
Telephone: (415) 744-1185.
SUPPLEMENTARY INFORMATION: This document concerns the following rules
submitted to EPA by the California Air Resources Board on the dates
noted. Kern County Air Pollution Control District's Rule 410.4, Surface
Coating of Metal Parts and Products, submitted on May 25, 1995; Placer
County Air Pollution Control District's Rule 244, Semiconductor
Manufacturing Operations, submitted on May 24, 1995; Ventura County Air
Pollution Control District's Rules 74.7, Fugitive Emissions of Reactive
Organic Compounds (ROC) at Petroleum Refineries and Chemical Plants,
submitted on March 26, 1996, and 74.14, Polyester Resin Material
Operations, submitted on September 14, 1992; and San Joaquin Valley
Unified Air Pollution Control District's Rule 4651, Volatile Organic
Compound Emissions from Decontamination of Soil, submitted on December
22, 1994. For further information, please see the information provided
in the Direct Final action which is located in the Rules Section of
this Federal Register.
Authority: 42 U.S.C. 7401-7671q.
Dated: June 17, 1996.
Felicia Marcus,
Regional Administrator.
[FR Doc. 96-18936 Filed 7-24-96; 8:45 am]
BILLING CODE 6560-50-W
Complete official Federal Register PDF
FR Doc. 96-18905 Capacity Reservation Open Access Transmission Tariffs
[Federal Register Volume 61, Number 144 (Thursday, July 25, 1996)]
[Proposed Rules]
[Pages 38663-38664]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18905]
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Part 35
[Docket No. RM96-11-000]
Capacity Reservation Open Access Transmission Tariffs
July 18, 1996.
AGENCY: Federal Agency Regulatory Commission.
ACTION: Notice of proposed rulemaking; extension of time and convening
a public conference.
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SUMMARY: Various participants have requested additional time to comment
on the Commission's notice of proposed rulemaking in this proceeding.
The proposed rule specifies filing requirements to be followed by
public utilities in making transmission tariff filings based on
capacity reservations for all transmission users. An extension of time
is being granted and a one-day technical conference will be convened.
DATES: An extension of time for filing comments on the proposed rule is
granted to and including October 21, 1996. A technical conference will
be held on September 20, 1996.
ADDRESSES: Federal Energy Regulatory Commission, 888 First St., NE.,
Washington, DC 20426.
FOR FURTHER INFORMATION CONTACT:
David D. Withnell, Federal Energy Regulatory Commission, Office of the
General Counsel, 888 First St., NE., Washington, DC 20426, telephone:
(202) 208-2063.
SUPPLEMENTARY INFORMATION: On June 27, 1996, July 3, 1996, and July 17,
1996, Various Utilities,\1\ Joint Petitioners,\2\ and Allegheny Power
Service Corporation (Allegheny Power),\3\ respectively, filed motions
for an extension of time within which to file comments in response to
the Notice of Proposed Rulemaking issued April 24, 1996 in the above-
captioned proceeding.\4\ Various Utilities, Joint Petitioners, and
Allegheny Power express concern that the August 1, 1996 date set by the
Commission for filing written comments should hamper the ability of
electric industry participants, who must also meet the various
requirements of Order Nos. 888 and 889,\5\ to address the issues in a
meaningful manner.\6\ Various Utilities and Allegheny Power request a
61-day extension of time, until October 1, 1996. Joint Petitioners
request a greater number of technical conferences or an
[[Page 38664]]
expanded schedule for the Commission's proposed technical conference,
and request that the Commission issue, following such conferences, a
Supplemental NOPR or Notice of Clarification upon which the parties
would then be allowed to submit comments.
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\1\ Central Illinois Public Service Company, Cleveland Electric
Illuminating Company, Commonwealth Edison Company, Central Power and
Light Company, Ohio Edison Company, Pennsylvania Power Company,
Public Service Company of Oklahoma, South Carolina Electric & Gas
Company, Toledo Edison Company, Southwestern Electric Power Company,
West Texas Utilities Company, and Union Electric Company.
\2\ Edison Electric Institute, National Association of
Regulatory Utility Commissioners, American Public Power Association,
National Rural Electric Cooperative Association, and North American
Electric Reliability Council.
\3\ Submitted on behalf of Monongahela Power Company, The
Potomac Edison Company, and West Penn Power Company.
\4\ Capacity Reservation Open Access Transmission Tariffs,
Notice of Proposed Rulemaking, 61 FR 21847 (May 10, 1996) (CRT
NOPR).
\5\ Promoting Wholesale Competition Through Open Access Non-
discriminatory Transmission Services by Public Utilities and
Recovery of Stranded Costs by Public Utilities and Transmitting
Utilities, 61 FR 21540 (May 10, 1996), FERC Stats. & Regs. para.
31,036 (1996) (Order No. 888); Open Access Same-Time Information
System (formerly Real-Time Information Networks) and Standards of
Conduct, 61 FR 21737 (May 10, 1996), FERC Stats. & Regs. para.
31,037 (1996) (Order No. 889); Order Clarifying Order Nos. 888 and
889 Compliance Matters, 76 FERC para. 61,009 (July 2, 1996).
\6\ Answers in support have been filed by Virginia Electric and
Power Company, M-S-R Public Power Agency, Transmission Agency of
Northern California, Colorado Association of Municipal Utilities,
South Carolina Public Service Authority, and Transmission Access
Policy Study Group.
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Upon consideration, notice is hereby given that the August 1, 1996
deadline for filing written comments is extended to October 21, 1996
and that the Commission will convene a technical conference on
September 20, 1996. Because participants will now have the opportunity
to submit comments following the technical conference, the Commission
has decided to hold a one-day technical conference rather than the two-
day conference mentioned in the CRT NOPR. The agenda and the times for
the technical conference will be announced at a later date. In
addition, the Commission may schedule further procedures and offer
further guidance based on the outcome of the technical conference.
Lois D. Cashell,
Secretary.
[FR Doc. 96-18905 Filed 7-24-96; 8:45 am]
BILLING CODE 6717-01-M
Complete official Federal Register PDF
FR Doc. 96-18898 International Code of Conduct for Responsible Fisheries: Draft Implementation Plan
[Federal Register Volume 61, Number 144 (Thursday, July 25, 1996)]
[Proposed Rules]
[Pages 38703-38704]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18898]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 300
[I.D. 071296D]
International Code of Conduct for Responsible Fisheries: Draft
Implementation Plan
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice of availability; request for comments.
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SUMMARY: NMFS announces the availability of the Draft Implementation
Plan for the Code of Conduct for Responsible Fisheries (Code) and is
requesting comments from the public. The Code was negotiated under the
sponsorship of the Food and Agriculture Organization of the United
Nations (FAO) as an effort to promote international understanding about
the responsible conduct of fishing and related activities. The intended
effect of the Implementation Plan is to assess relevant U.S. policy and
practices in relation to the standards set forth in the Code and,
within the responsibilities of NMFS, to present actions to meet those
standards.
DATES: Comments should be submitted on or before September 23, 1996.
ADDRESSES: Comments on the Draft Implementation Plan should be
submitted to Dean Swanson, Acting
[[Page 38704]]
Director, Office of International Affairs, NMFS, 1315 East-West
Highway, Silver Spring, MD 20910. Copies of the Draft Implementation
Plan are available from the NMFS Office of International Affairs.
FOR FURTHER INFORMATION CONTACT: Dean Swanson, 301-713-2276.
SUPPLEMENTARY INFORMATION: The concept of responsible fisheries was
raised by the FAO in 1991 at the 19th Session of the FAO Committee on
Fisheries (COFI). COFI recognized that FAO has an important role to
play in promoting international understanding about the responsible
conduct of fishing organizations.
In May 1992, the Government of Mexico, in consultation with FAO,
organized the International Conference on Responsible Fishing, which
resulted in the Cancun Declaration. The Conference requested FAO to
draft the Code in consultation with other international organizations.
At its 20th session, in 1993, COFI considered the contents of the
proposed code and agreed that it should contain an introductory
section, including general principles, and six thematic areas or
articles: Fisheries management, fishing operations, aquaculture
development, integration of fisheries into coastal area management,
post-harvest practices and trade, and fisheries research. The Agreement
to Promote Compliance with International Conservation and Management
Measures by Fish Vessels on the High Seas (the Compliance Agreement)
was to form an integral part of the code.
Beginning in February 1994 and continuing through September 1995,
FAO convened an informal working group of government-nominated experts,
a technical consultation, and two sessions of a technical committee to
elaborate the Code. In October 1995, the Code was submitted to the FAO
Council and adopted by the FAO Conference in November 1995.
Although the Code is a voluntary, non-binding instrument, it
addresses aspects of responsible fisheries that are included in two
recently concluded international agreements: The Compliance Agreement
and the Agreement for the Implementation of the Provisions of the
United Nations Convention on the Law of the Sea of 10 December 1982
Relating to the Conservation and Management of Straddling Fish Stocks
and Highly Migratory Fish Stocks (Straddling Stocks Agreement). The
United States has signed both international agreements and deposited an
instrument of acceptance for the Compliance Agreement.
The Compliance Agreement sets forth a broad range of obligations
for nations that have fishing vessels operating on the high seas,
including the obligation to ensure that such vessels do not undermine
international fishery conservation and management measures. Such
nations must also prohibit their vessels from fishing on the high seas
without specific authorization and must take enforcement measures in
respect to vessels that contravene requirements associated with the
Compliance Agreement. The Compliance Agreement is considered to be an
integral part of the Code. The United States has implemented the
Compliance Agreement through the High Seas Fishing Compliance Act of
1995.
The Straddling Stocks Agreement includes an article on general
principles that is similar in content and wording to the article on
general principles in the Code. These issues include the precautionary
approach to fisheries management; the impacts of fishing on target
stocks and species belonging to the same ecosystem or associated with
or dependent upon the target stocks; the minimization of pollution,
waste, discards, catch by lost or abandoned gear, and the catch of non-
target species; and the prevention or elimination of overfishing and
excess fishing capacity. The Straddling Stocks Agreement, while
generally limited to straddling stocks and highly migratory fish
stocks, is applicable to fishing within national exclusive economic
zones for purposes of Article 6 (application of the precautionary
approach), Article 7 (compatibility of conservation and management
measures) and, mutatis mutandis, to Article 5 (general principles).
The Draft Implementation Plan for the Code is organized as follows:
Section I. Actions to be initiated during Fiscal Year (FY) 1997-98.
Section II. Actions to be initiated after FY 98.
Section III. Standards under policy review within the U.S.
Government.
Section IV. Standards that are the responsibility of a Federal
Agency other than the National Marine Fisheries Service.
Appendix A. Standards that do not require the United States to
initiate new action.
Appendix B. Standards that do not apply to the United States.
Authority: 16 U.S.C. 1801 et seq.
Dated: July 22, 1996.
Richard W. Surdi,
Acting Director, Office of Fisheries Conservation and Management,
National Marine Fisheries Service.
[FR Doc. 96-18898 Filed 7-24-96; 8:45 am]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-18860 Freedom of Information and Privacy Act Regulations
[Federal Register Volume 61, Number 144 (Thursday, July 25, 1996)]
[Proposed Rules]
[Pages 38657-38663]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18860]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 61, No. 144 / Thursday, July 25, 1996 /
Proposed Rules
[[Page 38657]]
DEPARTMENT OF AGRICULTURE
Office of the Secretary
7 CFR Part 1
Freedom of Information and Privacy Act Regulations
AGENCY: Office of the Secretary of Agriculture, USDA.
ACTION: Proposed rule.
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SUMMARY: The United States Department of Agriculture (USDA or the
Department) is proposing to amend its regulations pertaining to the
Freedom of Information and Privacy Act as part of the USDA regulatory
reinvention initiative to improve its regulations. These proposed
changes, if adopted, will correct references to statutes, regulations,
USDA agencies, and USDA officials; reflect the change of the name of
the Administration Building to the Jamie L. Whitten Federal Building;
update the regulations to reflect changes in statutes and USDA policy;
remove gender specific references; remove unnecessary regulations; and
make minor, nonsubstantive changes for clarity.
DATES: Consideration will be given only to comments received on or
before September 23, 1996.
ADDRESSES: Please send an original and three copies of your comments to
Scott C. Safian, Staff Attorney, Regulatory Division, Office of the
General Counsel, U.S. Department of Agriculture, Room 2422, South
Building, 14th Street and Independence Avenue SW., Washington, D.C.
20250-1400. Comments received may be inspected at USDA, Room 2422,
South Building, 14th Street and Independence Avenue SW., Washington, DC
20250-1400, between 8 a.m. and 4:30 p.m., Monday through Friday, except
holidays. Persons wishing to inspect comments are encouraged to call
ahead on (202) 720-5550 to facilitate entry.
FOR FURTHER INFORMATION CONTACT: Regarding the regulations mentioned in
this document, contact Scott C. Safian, Staff Attorney, Regulatory
Division, Office of the General Counsel, U.S. Department of
Agriculture, Room 2422, South Building, 14th Street and Independence
Avenue SW., Washington, D.C. 20250-1400, (202) 720-2003.
Regarding general information on USDA's ``reinventing initiative,''
contact: Marvin Shapiro, Chief, Legislative, Regulatory and Automated
Systems Division, Office of Budget and Program Analysis, U.S.
Department of Agriculture, Room 147-E, Jamie L. Whitten Federal
Building, 14th Street and Independence Avenue SW., Washington, D.C
20250-1400, (202) 720-1516.
SUPPLEMENTARY INFORMATION:
Background
On March 4, 1995, President Clinton announced plans for reforming
the Federal regulatory system as part of his ``Reinventing Government''
initiative. In his March 4 directive, the President ordered the heads
of all Federal departments and agencies to conduct a review of their
regulations and to eliminate or revise those that are outdated or
otherwise in need of reform. The U.S. Department of Agriculture
completed its review and submitted a report on the review to the Office
of Management and Budget on June 1, 1995. The review included USDA's
Administrative Regulaitons--Official Records (7 CFR, part 1, subpart A)
and Administrative Regulaitons--Privacy Act Regulations (7 CFR, part 1,
subpart G). The Department found that these regulations contained
incorrect references to statutes, regulations, USDA agencies, USDA
officials, and the Jamie L. Whitten Federal Building; unnecessary and
outdated provisions; gender specific references; and provisions that
could be clarified by making minor, nonsubstantive changes. This
proposal, which, if adopted, would correct references to statutes,
regulations, USDA agencies, USDA officials and the Jamie L. Whitten
Federal Building; remove gender specific references; remove unnecessary
regulations; update the regulations to reflect statutory and policy
changes that have been made since the regulations were last amended;
and make minor nonsubstantive changes for clarity, represents USDA's
continuing effort to implement the President's plan.
The Proposal
Authority Citations for 7 CFR, Part 1, Subparts A and G
The Department is proposing to amend 7 CFR, part 1, subpart A, by
revising the authority citation for subpart A to reflect the
recodification of 7 U.S.C. 2244 at 7 U.S.C. 3125a and the new
delegations of authority within the Department which were published in
the Federal Register on November 8, 1995, at 60 FR 56392. This proposal
also would amend the authority citation for subpart G by adding
references to 5 U.S.C. 301 and 31 U.S.C. 9701 which should be included
in the authority citation for subpart G.
Amendments to Numerous Provisions in 7 CFR, Part 1, Subparts A and G
The Department also is proposing to amend numerous sections in 7
CFR, part 1, subparts A and G by updating references to the Department
offices, titles of Department officials, and Department agencies;
replacing gender specific references with gender neutral references;
replacing inaccurate cross references; replacing references to the
``Administration Building'' with references to the ``Jamie L. Whitten
Federal Building'' to reflect the change in the name of the building
that was effectuated by the enactment of Pub. L. No. 103-404;
eliminating surplusage; and clarifying provisions in 7 CFR, part 1,
subparts A and G.
The Department also is proposing to remove the word ``document(s)''
and add the word ``record(s)'' in the place of the word ``document(s)''
in all of the provisions in 7 CFR, part 1, subparts A and G which
relate to the Freedom of Information Act and the Privacy Act, both of
which concern access to ``records.''
Specific Amendments to 7 CFR, Part 1, Subparts A and G
In addition to the proposed changes related above, the Department
is proposing to amend specific provisions within 7 CFR, part 1,
subparts A and G as described below.
Freedom of Information Regulations
Section 1.1 states that subpart A of the regulations establishes
policy, procedures, requirements, and responsibilities for
administration and coordination of the Freedom of Information Act
(FOIA), 5 U.S.C. 552,
[[Page 38658]]
and provides that the Office of Governmental and Public Affairs (OGPA)
has the primary administrative responsibility for the FOIA in the USDA.
The OGPA is no longer an agency of the USDA and its duties have been
subsumed by the Office of Communications (OC). Furthermore, while the
OGPA was headed by an Assistant Secretary and was part of the Office of
the Secretary of Agriculture, the Office of Communications is headed by
a Director and is not part of the Secretary's office. The Office of
Communications consists of nine divisions, each headed by a director,
and a Press Secretary staff. Accordingly, the Department is proposing
to amend Sec. 1.1 to reflect these changes in Department administration
and organization. Similar changes are proposed to be made in other
sections of the regulations.
Section 1.2(a) provides that agencies of USDA shall comply with the
time limits set forth in the FOIA for responding to processing requests
and appeals for agency documents, unless there are exceptional
circumstances within the meaning of 5 U.S.C. 552(a)(6)(B). The
Department is proposing to remove the reference to ``exceptional
circumstances'' and replace it with a reference to ``unusual
circumstances'' because the term defined in 5 U.S.C. 552(a)(6)(B) is
``unusual circumstance.''
Section 1.4(b)(6) describes the organization and responsibilities
of the Office of Governmental and Public Affairs. As discussed above,
this office no longer exists. Accordingly, this proposed rule would
amend Sec. 1.4(b)(6) to reflect these changes in Department
administration and organization, and describe the organization of the
Office of Communications.
Section 1.6(a) provides that a person requesting records from any
agency of the Department may request a fee wavier ``if there is likely
to be a charge for the requested information.'' Persons requesting
records may not know whether the Department is likely to charge for the
requested information, and the Department does not believe that any
purpose is served by requiring persons requesting records to determine
the likelihood of a fee as a condition of asking for a fee waiver.
Accordingly, the Department is proposing to eliminate the requirement
that a request for a few waiver may only be made if there is likely to
be a charge for the requested information.
Section 1.8(b) provides that if records requested contain some
portions which are exempt from mandatory disclosure and others which
are not exempt from disclosure, the official responding to the request
shall ensure that all nonexempt portions are disclosed. In 1974, the
FOIA was amended to provide that ``reasonably segregable'' portions of
records shall be provided to persons requesting agency records after
deletion of the portions which are exempt under 5 U.S.C. 552(b). For
this reason, the Department is proposing to amend Sec. 1.8(b) to
require that the official responding to the request ensure that
reasonably segregable nonexempt portions are disclosed.
Section 1.11(a) provides that whenever a request (including any
``demand'' as defined in Sec. 1.21) is received in USDA for information
which has been submitted by a business, all agencies of the Department
must provide the business information submitter with certain specified
information. Section 1.21 was removed from the regulations by a final
rule published in the Federal Register on October 19, 1990, at 55 FR
42347. Former 7 CFR 1.21 was reworded and incorporated in a new
provision, 7 CFR 1.215. Therefore, the Department is proposing to
eliminate the reference to ``Sec. 1.21'' and replace it with a
reference to 7 CFR 1.215.
Section 1.16 delegates authority within the USDA to promulgate
regulations providing a uniform schedule of fees applicable to all
agencies of the Department regarding requirements for records under
subpart A of the regulations. The regulations providing for a uniform
fee schedule are set forth at appendix A of the subpart. Section 1.16
provides that any amendments to the fee schedule shall be made pursuant
to notice and opportunity for comment. Under an overly strict reading
of this section, even a minor, nonsubstantive change to the fee
schedule, such as the correction of a spelling error, may only be made
after notice and comment rulemaking. It is not the purpose of Sec. 1.16
to require any more rulemaking procedure than that provided under the
Administrative Procedure Act. Accordingly, the Department is proposing
to remove the language in Sec. 1.16 which provides that any amendments
to the fee schedule will be made pursuant to notice and opportunity for
comment. Substantive amendments to the fee schedule, such as changes to
the fees to be charged for processing requests under this subpart or
changes to the uniform fee schedule that modify procedures for or
circumstances under which a fee may be waived or reduced, will continue
to be made pursuant to notice and comment rulemaking, as required by
law.
Privacy Act Regulations
Section 1.123 of the Department's Privacy Act regulations contains
a listing of those systems of records maintained by agencies of USDA
which have been exempted, pursuant to 5 U.S.C. 552a(K) from the
provisions of 5 U.S.C. 552a, paragraphs (c)(3), (d), (e)(1), (e)(4)(G),
(H), and (I), and (f) of the Privacy Act. The reasons for exempting
each system of records are set out in the notice for that system
published in the Federal Register. The names of several of the agencies
and systems listed in Sec. 1.123 are antiquated or have otherwise
changed. Accordingly, the Department is proposing to make several
changes to Sec. 1.123 to reflect this fact.
Executive Order 12866 and Regulatory Flexibility Act
This proposed rule has been reviewed under Executive Order 12866.
The rule has been determined to be not significant for the purposes of
Executive Order 12866 and, therefore, has not been reviewed by the
Office of Management and Budget.
This proposed rule, if adopted, would correct references to
statutes, regulations, USDA agencies, USDA officials, and the
Administration Building; remove gender specific references; remove
unnecessary provisions; update regulations to reflect changes that have
been made in statutes and policy since the regulations were last
amended; and make minor, nonsubstantive changes for clarity. This
proposed rule will not have any economic impact.
Under these circumstances, the Secretary has determined that this
action will not have a significant economic impact on a substantial
number of small entities.
Executive Order 12778
This proposed rule has been reviewed under Executive Order 12778,
Civil Justice Reform, If this proposed rule is adopted, this rule
would: (1) Preempt all state and local laws and regulations that are
inconsistent with this rule; (2) have no retroactive effect; and (3)
would not require administrative proceedings before parties may file
suit in court challenging this rule.
Paperwork Reduction Act
This proposed rule contains no information collection or
recordkeeping requirements under the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.).
List of Subjects in 7 CFR Part 1
Administrative practice and procedure, Agriculture, Antitrust,
[[Page 38659]]
Claims, Cooperatives, Courts, Equal access to justice, Federal
buildings and facilities, Freedom of information, Government employees,
Lawyers, Privacy.
Accordingly, 7 CFR part 1, subpart A and subpart G, would be
amended as follows:
PART 1--ADMINISTRATIVE REGULATIONS
Subpart A--Official Records
1. The authority citation for part 1, subpart A, would be revised
to read as follows:
Authority: 5 U.S.C. 301, 552, 7 U.S.C. 3125a; 31 U.S.C. 9701;
and 7 CFR 2.28(b)(7)(viii).
2. Section 1.1 would be revised to read as follows:
Sec. 1.1 Purpose and scope.
This subpart establishes policy, procedures, requirements, and
responsibilities for administration and coordination of the Freedom of
Information Act (FOIA), 5 U.S.C. 552, pursuant to which official
records may be obtained by any person. This subpart also provides rules
pertaining to the disclosure of records pursuant to compulsory process.
This subpart also serves as the implementing regulations for the Office
of the Secretary (the immediate offices of the Secretary, Deputy
Secretary, Under Secretaries, and Assistant Secretaries) and for the
Office of Communications. The Office of Communications has the primary
responsibility for the FOIA in the Department of Agriculture (USDA).
The term ``agency'' or ``agencies'' is used throughout this subpart to
include both USDA program agencies and staff offices.
Sec. 1.2 [Amended]
3. Section 1.2 would be amended as follows:
a. Paragraph (a) would be amended by removing the word
``documents'' and adding the word ``records'' in its place; and by
removing the word ``exceptional'' and adding the word ``unusual'' in
its place.
b. Paragraph (b) would be amended by removing the word
``documents'' and adding the word ``records'' in its place.
Sec. 1.3 [Amended]
4. In Sec. 1.3, paragraph (a)(2) would be amended by removing the
word ``thereto'' and adding the words ``to indexes'' in its place.
5. Section 1.4 would be amended as follows:
a. Paragraph (a) introductory text would be amended by removing the
words ``Office of Governmental and Public Affairs'' and adding the
words ``Office of Communications'' in their place.
b. Paragraphs (a)(1) and (a)(2) would be amended by removing the
words ``Administration Building'' and adding the words ``Jamie L.
Whitten Federal Building'' in their place.
c. Paragraph (a)(3) would be amended by removing the words
``Director of Information, Office of Governmental and Public Affairs''
and adding the words ``FOIA Coordinator, Office of Communications'' in
their place.
d. Paragraph (a)(4) would be amended by removing the words
``Assistant Secretary for Governmental and Public Affairs'' and adding
the words ``Director of Communications, Office of Communications'' in
their place.
e. Paragraph (b) introductory text would be amended by removing the
words ``Office of Governmental and Public Affairs (OGPA)'' and adding
the words ``Office of Communications (OC)'' in their place.
f. Paragraph (b)(3) would be amended by removing the reference ``7
CFR part 2, subpart A'' and adding the reference ``part 2, subpart A,
of this title'' in its place.
g. Paragraph (b)(4) would be amended by removing the words ``Office
of Governmental and Public Affairs'' and adding the words ``Office of
Communications'' in their place; and by removing the words ``The Office
is'' and adding the words ``The Office of Communications is'' in their
place.
h. Paragraph (b)(5) would be revised to read as set forth below.
i. Paragraph (b)(6) would be revised to read as set forth below.
Sec. 1.4 Implementing regulations for the Office of the Secretary.
* * * * *
(b) * * *
5. The Office of Communications is headed by the Director of
Communications. In the Director's absence, the Office of Communications
is headed by the Press Secretary.
(6) The Office of Communications consists of nine divisions, each
headed by a director, and a Press Secretary.
Sec. 1.5 [Amended]
6. In Sec. 1.5, paragraph (b) would be amended as follows:
a. In the first sentence, by removing the word ``also''; and by
adding the words ``for public inspection and copying'' immediately
after the words ``make available''.
b. In the second sentence, by removing the word ``thereto'' and
adding the words ``to such indexes'' in its place.
c. In the third sentence, by removing the word ``Notice'' and
adding the word ``notice'' in its place.
7. Section 1.6 would be amended as follows:
a. In paragraph (a), the second sentence would be amended by
removing the words ``if there is likely to be a charge for the
requested information''; in the third sentence, by removing the words
``Office of Governmental and Public Affairs'' and adding the words
``Office of Communications'' in their place both time they appear; in
the third sentence, by removing the words ``Director of Information''
and adding the words ``Director or Communications'' in their place; and
in the fourth sentence, by removing the words ``that Act'' and adding
the words ``the Freedom of Information Act'' in their place.
b. Paragraph (b) would be amended by removing the words ``etc.,
which'' and adding the words ``names of individuals, names of offices,
and names or agencies or other organizations that'' in their place.
c. In paragraph (c), the first sentence would be amended by
removing the word ``it'' and adding the words ``the agency'' in its
place; and by removing the words ``he or she'' and adding the words
``the requester'' in their place.
d. Paragraph (e) would be amended by removing the words ``the
person making the request'' and adding the words ``the requester'' in
their place; and by adding the words ``of this subpart'' immediately
after the words ``appendix A''.
e. Paragraph (f) would be amended by removing the words
``nonagency-specific, i.e., are''; and by removing the words ``Office
of Governmental and Public Affairs, Office of Information, Special
Programs Division'' and adding the words ``Office of Communications''
in their place.
f. Paragraph (g) would be amended by removing the word
``(agencies)'' and adding the words ``or agencies'' in its place; and
by removing the words ``The unit'' and adding the words ``The central
processing unit'' in their place.
g. Paragraph (h) would be revised to read as set forth below.
Sec. 1.6 Requests for records.
* * * * *
(h) Each agency shall develop and maintain a record of all written
and oral requests and appeals received in that agency. The record shall
include the name of the requester; a brief summary of the information
requested; whether the request or appeal was granted, denied, or
partially denied; the exemption from mandatory disclosure under 5
U.S.C. 552(b) upon which any
[[Page 38660]]
denial was based; and the amount of any fees associated with the
request or appeal.
Sec. 1.8 [Amended]
8. Section 1.8 would be amended as follows:
a. In paragraph (a) introductory text, the third sentence would be
amended by removing the words ``it grants'' and adding the words ``the
agency grants'' in their place.
b. Paragraph (b) would be amended by removing the word ``insure''
and adding the word ``ensure'' in its place; and by adding the words
``reasonably segregable'' immediately before the word ``nonexempt''.
c. In paragraph (d) introductory text, the third sentence would be
amended by removing the words ``it grants'' and adding the words ``the
agency grants'' in their place.
d. In paragraph (e), the sentence would be amended by removing the
word ``Agencies'' and adding the words ``Each agency'' in its place; by
removing the word ``thereof'' and adding the words ``of the fee'' in
its place; in the third sentence, by removing the words ``In instances
where'' and adding the word ``If'' in their place; and by removing the
word ``likewise''.
e. Paragraph (f) would be amended by removing the words ``the
forwarding of copies'' and adding the words ``providing copies of the
records'' in their place.
f. Paragraph (g) would be amended by adding the words ``of this
subpart'' immediately after the words ``appendix A'' both times they
appear; and, in the second sentence, by removing the words ``Similarly,
as a matter of policy, where'' and adding the word ``If'' in their
place.
9. Section 1.9 would be amended as follows:
a. Paragraph (a) would be amended by removing the words ``They
include'' and adding the words ``Search services include'' in their
place; and by removing the words ``They also include'' and adding their
words ``Search services also include'' in their place.
b. Paragraph (c) would be removed.
c. Paragraph (b) would be revised to read as set forth below.
Sec. 1.9 Search services.
* * * * *
(b) Search services do not include the time spent locating a record
if the record is in its normal location in a file or other facility or
the review of records to determine whether the records are exempt.
10. Section 1.10 would be amended as follows:
a. Paragraph (a) would be amended by removing the word
``documents'' and adding the word ``records'' in its place; by adding
the words ``of this subpart'' immediately after the words ``appendix
A''; and by removing the word ``document'' and adding the word
``record'' in its place.
b. Paragraph (b) would be amended by removing the word
``documents'' and adding the word ``records'' in its place both times
it appears.
c. Paragraph (c) would be revised to read as set forth below.
Sec. 1.10 Review services.
* * * * *
(c) Review services do not include the time spent resolving general
legal or policy issues regarding the application of exemptions.
Sec. 1.11 [Amended]
11. In Sec. 1.11, paragraph (a) introductory text would be amended
by removing the words ``Whenever a request (including any `demand' as
defined in Sec. 1.21)'' and adding the words ``If a request (including
a subpoena duces tecum as described in Sec. 1.215)'' in their place.
Sec. 1.13 [Amended]
12. Section 1.13 would be amended as follows:
a. In paragraph (b), the last sentence would be amended by removing
the words ``Assistant General Counsel.'' and adding the words
``Assistant General Counsel, Research and Operations Division, Office
of the General Counsel.'' in their place.
b. Paragraph (c) would be amended by adding the words ``, Research
and Operations Division, Office of the General Counsel,'' immediately
after the words ``Assistant General Counsel''; by removing the words
``Office of Governmental and Public Affairs'' and adding the words
``Office of Communications'' in their place; and by removing the word
``thereof'' and adding the words ``of the administrative deadline'' in
its place.
Sec. 1.14 [Amended]
13. Section 1.14 would be amended to read as follows:
a. Paragraph (a) would be amended by removing the word
``dispatched'' and adding the words ``sent to the requester'' in its
place.
b. Paragraph (b)(3) would be amended by removing the word
``therein'' and adding the words ``in the request'' in its place; and
by removing the words ``Office of Governmental and Public Affairs'' and
adding the words ``Office of Communications'' in their place.
14. Section 1.16 would be revised to read as follows:
Sec. 1.16 Fee schedule.
Pursuant to Sec. 2.28 of this title, the Chief Financial Officer is
delegated authority to promulgate regulations providing for a uniform
fee schedule applicable to all agencies of the Department regarding
requests for records under this subpart. The regulations providing for
a uniform fee schedule are found in appendix A of this subpart.
Sec. 1.18 [Amended]
15. Section 1.18 would be amended as follows:
a. Paragraph (a)(7) would be amended by removing the word
``fully''.
b. Paragraph (b) would be amended by removing the words ``Director
of Information, Office of Governmental and Public Affairs'' and adding
the words ``Director of Communications, Office of Communications'' in
their place.
c. Paragraph (c) would be amended by removing the words ``Director
of Information'' and adding the words ``Director of Communications,
Office of Communications'' in their place; and by removing the
reference ``5 U.S.C. 552(d)'' and adding the reference ``5 U.S.C.
552(e)'' in its place.
Appendix A of Subpart A [Amended]
16. Appendix A of subpart A would be amended as follows:
a. Section 1 would be amended by removing the word ``documents''
and adding the word ``records'' in its place.
b. In Sec. 2, the first sentence would be amended by adding the
words ``of this appendix'' immediately after the words ``section 5''
and by removing the word ``document'' and adding the word ``record'' in
its place; in the second sentence, by removing the words ``in
certifying'' and adding the word ``certifying'' in their place and by
removing the words ``in sending'' and adding the word ``sending'' in
their place; and in the third sentence, by removing the word
``schedule'' and adding the word ``appendix'' in its place.
c. In Sec. 3, paragraph (a) would be amended by removing the word
``documents'' and adding the word ``records'' in its place; by removing
the words ``as specified below in section 5'' and adding the words ``as
specified in section 5 of this appendix'' in their place; by removing
the word ``information'' and adding the word ``records'' in its place;
and by adding the words ``of this appendix'' immediately after the
reference to ``section 4(e)''.
[[Page 38661]]
d. In Sec. 3, paragraph (b) would be amended by removing the words
``Also, no'' and adding the word ``No'' in their place.
e. In Sec. 3, paragraph (c) would be amended by removing the words
``In addition, fees'' and adding the word ``Fees'' in their place.
f. In Sec. 3, paragraph (d) introductory text would be amended by
removing the word ``Documents'' and adding the word ``Records'' in its
place; and in paragraph d(2) by removing the word ``free'' and adding
the word ``fee'' in its place.
g. In Sec. 4, paragraph (c) would be amended by removing the word
``information'' and adding the word ``records'' in its place; and by
removing the word ``document(s)'' and adding the word ``records'' in
its place.
h. In Sec. 4, paragraph (j) would be amended by removing the words
``as amended (5 U.S.C. 552),''; by adding the words ``of this
appendix'' immediately after the reference to ``section 6''; and by
removing the word ``schedule'' and adding the word ``appendix'' in its
place.
i. In Sec. 4, paragraph (k) would be amended by removing the word
``schedule'' and adding the word ``appendix'' in its place; and by
removing the words ``(formerly 31 U.S.C. 483a)''.
j. Section 5 introductory text would be amended by removing the
words ``as amended,''; and by removing the words ``The Act'' and adding
the word ``FOIA'' in their place.
k. In Sec. 5, paragraph (a) introductory text would be amended by
adding the words ``of this appendix'' immediately after the reference
to ``section 3(a)''; and in paragraph (a)(2) by removing the word
``documents'' and adding the word ``records'' in its place.
l. In Sec. 5, paragraph (b)(2) would be amended by adding the words
``of this appendix'' immediately after the reference ``(see section
5(a)(1))''.
m. In Sec. 5, paragraph (d) would be amended by removing the words
``any of the above categories'' and adding the words ``the categories
described in paragraphs (a), (b), or (c) of this section'' in their
place; by removing the word ``documents'' and adding the word
``records'' in its place; and by adding the words ``of this appendix''
immediately after the reference to ``section 4(e)''.
n. In Sec. 6, paragraph (a) introductory text would be amended by
revising the first sentence to read, ``Agencies shall waive or reduce
fees on request for records if disclosure of information in the records
is deemed to be in the public interest.''.
o. In Sec. 6, paragraph (a)(1)(v) would be amended by removing the
words ``, if so,''.
p. In Sec. 6, paragraph (a)(3)(i) would be amended by removing the
word ``information'' and adding the word ``records'' in its place.
q. In Sec. 6, paragraph (a)(3)(ii) would be amended by removing the
word ``recipient'' and adding the word ``requester'' in its place.
r. In Sec. 8, paragraph (d) would be amended by removing the word
``below'' and adding the words ``in section 9 of this appendix'' in its
place.
s. Section 9 would be amended by removing the reference ``section
3717 of title 31 U.S.C.'' and adding the reference ``31 U.S.C. 3717''
in its place.
t. Section 10 would be amended by removing the reference ``the
provisions of 31 U.S.C. 3701, 3711-3719'' and adding the reference ``31
U.S.C. 3701, 3711-3720A'' in its place.
u. In Sec. 13, the heading would be amended by removing the word
``photographic''.
v. Section 13 introductory text would be amended by removing the
words ``this action to be'' and adding the words ``that furnishing free
reproductions is'' in their place.
w. In Sec. 13, paragraph (a) would be amended by removing the words
``Press, radio, television, and newsreel representatives'' and adding
the words ``Representatives of the news media'' in their place.
x. Section 17 introductory text would be amended by removing the
word ``here'' and adding the words ``in this section'' in its place.
y. In Sec. 17, the fourth sentence of paragraph (a) would be
amended by removing the words ``fee schedule'' and adding the word
``appendix'' in their place; and by removing the words ``National
Agricultural Library, Room 111, Information Access Division, USDA,
Beltsville, Maryland 20705 (301-344-3834)'' and adding the words
``National Agricultural Library, Agricultural Research Service, USDA,
Document Delivery Services Branch, 10301 Baltimore Boulevard,
Beltsville, Maryland 20705-2351 (301-504-6503)'' in their place.
z. In Sec. 17, paragraph (c) would be amended by removing the word
``below'' and adding the words ``in this paragraph'' in its place.
aa. In Sec. 17, paragraph (d) would be amended by removing the word
``below'' and adding the words ``in this paragraph'' in its place.
bb. Section 11 including the heading would be revised to read as
set forth below.
cc. Section 12 would be revised to read as set forth below.
dd. In Sec. 17, paragraph (e) would be revised to read as set forth
below.
Appendix A--Fee Schedule
* * * * *
Section 11. Photographic and digital reproductions of microfilm,
aerial imagery, and maps.
Microfilm, aerial imagery, and maps that have been obtained in
connection with the authorized work of this Department may be sold
at the estimated cost of furnishing reproductions of these records,
using photographic, digital, or other methods of reproduction as
prescribed in this appendix.
Section 12. Agencies which furnish photographic reproductions.
(a) Aerial photographic reproductions. The agencies of the
Department identified in this paragraph furnish aerial photographic
reproductions.
(1) Farm Service Agency (FSA), APFO, USDA-FSA, 2222 West 2300
South, P.O. Box 30010, Salt Lake City, Utah 84125.
(2) Natural Resources Conservation Service (NRCS), National
Cartography and Geospatial Center, 501 Felix Street, Building 23,
Fort Worth, Texas 76115, or a cartographic facility in any NRCS
Technical Service Center.
(b) Other photographic reproductions. Photographic reproductions
other than aerial photographic reproductions may be obtained from
the agencies of the Department identified in this paragraph.
(1) Farm Service Agency (FSA), Aerial Photography Field Office,
USDA-FSA, 2222 West 2300 South, PO. Box 30010, Salt Lake City, Utah
84125.
(2) Forest Service (FS), USDA, PO. Box 96090, Washington, DC.
20090-6090, or a FS Regional Office.
(3) National Agricultural Library, Agricultural Research
Service, USDA, Document Delivery Services Branch, 10301 Baltimore
Boulevard, Beltsville, Maryland 20705-2351.
(4) Natural Resources Conservation Service, National Cartography
and Geospatial Center, 501 Felix Street, Building 23, Fort Worth,
Texas 76115.
(5) Office of Communications, Photography Division, Room 4407
South Building, Washington, DC. 20250.
* * * * *
Section 17. Reproduction prices.
* * * * *
(e) Special needs. For special needs not covered elsewhere in
this section, persons desiring aerial photographic reproductions
should contact the aerial photography coordinator, Farm Service
Agency (FSA), Aerial Photography Field Office, USDA-FSA, 2222 West
2300 South, PO. Box 30010, Salt Lake City, Utah 84125.
* * * * *
Subpart G--Privacy Act Regulations
17. The authority citation for part 1, subpart G, would be revised
to read as follows:
[[Page 38662]]
Authority: 5 U.S.C. 301 and 552a; 31 U.S.C. 9701.
Sec. 1.110 [Amended]
18. Section 1.110 would be amended by removing the word ``It'' and
adding the words ``This subpart'' in its place; and by removing the
words ``the Act'' and adding the words ``the Privacy Act'' in their
place both times they appear.
Sec. 1.112 [Amended]
19. In Sec. 1.112, paragraph (a) introductory text would be amended
by adding the words ``or her'' immediately after the word ``him''.
Sec. 1.113 [Amended]
20. Section 1.113 would be amended as follows:
a. Paragraph (a) would be amended by adding the words ``or her''
immediately after the word ``him''; and by adding the words ``or
herself'' immediately after the word ``himself''.
b. In paragraph (b), the first sentence would be amended by
removing the words ``he is'' and adding the words ``the requester is''
in their place; in the second sentence, by removing the words ``he
shall'' and adding the words ``the requester shall'' in their place; by
removing the word ``his'' and adding the words ``the requester's'' in
its place; by removing the words ``he understands'' and adding the
words ``the requester understands'' in their place; and, in the last
sentence by removing the words ``when the records are ones whose
disclosure is required by 5 U.S.C. 552'' and adding the words ``if the
records are required by 5 U.S.C. 552 to be released'' in their place.
c. Paragraph (c) would be amended by removing the words ``him via''
and adding the words ``himself or herself by'' in their place; by
removing the words ``him during'' and adding the words ``the requester
during'' in their place; and by removing the words ``their presence''
and adding the words ``the presence of such other person or persons''
in their place.
d. Paragraph (d) would be amended by removing the words ``to him''
and adding the words ``to the requester'' in their place; by removing
the words ``him copies'' and adding the words ``the requester copies''
in their place; and by removing the word ``thereof'' and adding the
words ``of those records'' in its place.
e. In paragraph (e), the first sentence would be amended by
removing the words ``he shall'' and adding the words ``the requester
shall'' in their place; by removing the words ``his request'' and
adding the words ``his or her request'' in their place; by removing the
words ``his identity'' and adding the words ``the requester's
identity'' in their place; in the second sentence, by removing the
words ``he is'' and adding the words ``the requester is'' in their
place; by removing the words ``he understands'' and adding the words
``the requester understands'' in their place; and in the third
sentence, by removing the words ``when the records are ones whose
disclosure is required by 5 U.S.C. 552'' and adding the words ``if the
records are required by 5 U.S.C. 552 to be released'' in their place.
Sec. 1.114 [Amended]
21. Section 1.114 would be amended as follows:
a. Paragraph (d) would be amended by removing the word ``he'' and
adding the words ``the system manager'' in its place both times it
appears.
b. Paragraph (e) would be amended by removing the word ``he'' and
adding the words ``the head of the agency'' in its place; by removing
the word ``therefor'' and adding the words ``for the determination'' in
its place; and by removing the word ``his'' and adding the words ``the
requester's in its place.
Sec. 1.116 [Amended]
22. Section 1.116 would be amended as follows:
a. Paragraph (a) introductory text would be amended by adding the
words ``or her'' immediately after the word ``him''.
b. Paragraph (b) would be amended by removing the reference ``5
U.S.C. 552(e) (1) and (5)'' and adding the reference ``5 U.S.C. 552a(e)
(1) and (5)'' in its place.
Sec. 1.117 [Amended]
23. Section 1.117 would be amended as follows:
a. Paragraph (a) introductory text would be amended by removing the
word ``It'' and adding the words ``The agency'' in its place.
b. In paragraph (a)(2), the first sentence would be amended by
removing the word ``his'' and adding the word ``the'' in its place; and
by removing the word ``he'' and adding the words ``the requester'' in
its place.
c. Paragraph (b) would be amended by removing the word ``therefor''
and adding the words ``for the inability to comply with paragraphs
(a)(1) or (a)(2) of this section within 30 days,'' in its place.
d. Paragraph (d)(3) would be amended by removing the words ``and
where'' and adding the word ``if'' in their place.
e. Paragraph (e)(2) would be amended by removing the word
``therefor'' and adding the words ``for the determination not to grant
all or a portion of the request for correction or amendment'' in its
place.
f. Paragraph (e)(3) would be amended by adding the words ``or she''
immediately after the word ``he''.
Sec. 1.118 [Amended]
24. Section 1.118 would be amended as follows:
a. Paragraph (c) would be amended by removing the word ``his'' and
adding the word ``a'' in its place.
b. Paragraph (d) would be amended by removing the word ``he'' and
adding the words ``the head of the agency'' in its place.
c. Paragraph (e) introductory text would be amended by removing the
word ``he'' and adding the words ``the head of the agency'' in its
place.
d. Paragraph (e)(1) would be amended by removing the word
``therefor'' and adding the words ``for the determination'' in its
place.
e. Paragraph (e)(2) would be amended by removing the word ``his''
and adding the words ``the requester's'' in its place.
Sec. 1.121 [Amended]
25. Section 1.121 would be amended by removing the words
``enumerated acts'' and adding the words ``acts enumerated in 5 U.S.C.
552a(i)'' in their place; by removing the words ``on or after September
27, 1995,''; and by removing the reference ``5 U.S.C. 552a(m)'' and
adding the reference ``5 U.S.C. 552a(m)(1)'' in its place.
Sec. 1.122 [Amended]
26. Section 1.122 would be amended by removing the word ``thereof''
and adding the words ``of systems of records'' in its place; by
removing the word ``below'' and adding the words ``in this section'' in
its place.
Sec. 1.123 [Amended]
27. Section 1.123 would be amended as follows:
a. The introductory text would be amended by removing the word
``thereof'' and adding the words ``of systems of records'' in its
place; by removing the word ``below'' and adding the words ``in this
section'' in its place.
b. By removing the heading ``AGRICULTURAL STABILIZATION AND
CONSERVATION SERVICE'' and adding the heading ``FARM SERVICE AGENCY''
in its place.
c. By removing the heading ``FARMERS HOME ADMINISTRATION'' and
removing the words ``Credit Report File, USDA/FmHa-3''.
d. By removing the heading ``FEDERAL GRAIN INSPECTION SERVICE'' and
adding the heading
[[Page 38663]]
``GRAIN INSPECTION, PACKERS AND STOCKYARDS ADMINISTRATION'' in its
place.
e. By removing the heading ``FOOD AND NUTRITION SERVICE'' and
adding the heading ``FOOD AND CONSUMER SERVICES'' in its place.
f. By removing, under the subheading Community Development
Division, the words ``Farmers Home Administration (FmHA) General Case
Files, USDA/OGC-12.'' and adding the words ``Farm Service Agency (FSA)
General Case Files, USDA/OGC-12a. Rural Housing Service (RHS) General
Case Files, USDA/OGC-12b. Rural Business-Cooperative Development
Service (RBS) General Case Files, USDA/OGC-12c. Federal Crop Insurance
Corporation (FCIC) Cases, USDA/OGC-16.'' in their place.
g. By removing the subheading Foreign Agriculture and Commodity
Stabilization Division and adding the subheading International Affairs
and Commodity Programs Division in its place.
h. By removing under the newly designated subheading International
Affairs and Commodity Programs Division the words ``Federal Crop
Insurance Corporation (FCIC) Cases, USDA/OGC-16.''
i. By removing the subheading ``Packers and Stockyards Division and
adding the subheading Trade Practices Division in its place.
Appendix A of Subpart G--INTERNAL DIRECTIVES [Amended]
28. Appendix A of subpart G would be amended as follows:
a. In Sec. 1, paragraph (c) introductory text would be amended by
adding the words ``, of'' immediately before the colon.
b. In Sec. 1, paragraph (c)(4) would be amended by removing the
word ``him'' and adding the words ``the individual'' in its place.
c. In Sec. 1, paragraph (d)(7) would be amended by adding the words
``or her'' immediately after the word ``his''; and by removing the word
``him'' and adding the words ``the individual'' in its place.
d. In Sec. 1, paragraph (d)(8) would be amended by adding the words
``or her'' immediately after the word ``his''; by removing the word
``he'' and adding the words ``the individual'' in its place both times
in appears; and by adding the words ``or her'' immediately after the
word ``him''.
e. In Sec. 2, paragraph (a) would be amended by removing the words
``insure that 30'' and adding the words ``ensure that at least 30'' in
their place.
f. In Sec. 3, paragraph (c) would be amended by removing the word
``above'' and adding the words ``required under paragraph (a) of this
section'' in its place; and by adding the words ``or her'' immediately
after the word ``his''.
g. In Sec. 4, by removing the words ``, if such contract is agreed
to on or after September 27, 1975,''; and by removing the words ``that
section'' and adding the reference ``5 U.S.C. 552a(i)'' in their place.
h. In Sec. 6, paragraph (a) would be amended by adding the words
``on her'' immediately after the word ``his''.
i. In Sec. 6, paragraph (b) introductory text would be amended by
removing the words ``The provisions of paragraph (a) of this Section''
and by adding the words ``Paragraph (a) of this section'' in their
place.
j. In Sec. 6, paragraph (c) would be amended by adding the words
``or her'' immediately after the words ``his''.
k. Section 7 introductory paragraph would be amended by removing
the words ``(beginning March 30, 1976)''.
l. Section 8 would be amended by removing the words ``the
provisions of''.
Done in Washington, DC., this 16th day of July 1996.
Dan Glickman,
Secretary of Agriculture.
[FR Doc. 96-18860 Filed 7-24-96; 8:45 am]
BILLING CODE 3410-01-M
Complete official Federal Register PDF
FR Doc. 96-18847 Geographic Partitioning and Spectrum Disaggregation by Commercial Mobile Radio Services Licensees; and Implementation of Section 257 of the Communications ActElimination of Market Entry Barriers
[Federal Register Volume 61, Number 144 (Thursday, July 25, 1996)]
[Proposed Rules]
[Pages 38693-38701]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18847]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 24
[WT Docket No. 96-148; GN Docket No. 96-113; FCC 96-287]
Geographic Partitioning and Spectrum Disaggregation by Commercial
Mobile Radio Services Licensees; and Implementation of Section 257 of
the Communications Act--Elimination of Market Entry Barriers
AGENCY: Federal Communications Commission.
ACTION: Notice of Proposed Rulemaking.
-----------------------------------------------------------------------
SUMMARY: In this Notice of Proposed Rulemaking in WT Docket No. 96-148
and GN Docket No. 96-113, the Commission proposes modifications to the
broadband personal communications services (PCS) rules to expand
geographic partitioning and spectrum disaggregation provisions. The
Commission also solicits comment on certain issues relating to these
rules. The Commission's objective in expanding the partitioning and
disaggregation rules is to enable a wide variety of applicants,
including small businesses, to overcome barriers to entry in the
broadband PCS market, to increase competition, and to expedite the
provision of broadband PCS to areas that may not otherwise receive
wireless services.
DATES: Comments must be filed on or before August 15, 1996. Reply
comments are to be filed on or before August 30, 1996.
ADDRESSES: Federal Communications Commission, 1919 M Street, N.W.,
Washington D.C. 20554.
FOR FURTHER INFORMATION CONTACT: David Nall or Mika Savir, Commercial
Wireless Division, Wireless Telecommunications Bureau, at (202) 418-
0620.
SUPPLEMENTARY INFORMATION: This Notice of Proposed Rulemaking in WT
Docket No. 96-148 and GN Docket No. 96-113, adopted on June 28, 1996,
and released on July 15, 1996, is available for inspection and copying
during normal business hours in the FCC Reference Center, Room 575,
2000 M Street N.W., Washington D.C. The complete text may also be
purchased from the Commission's copy contractor, International
Transcription Service, Inc., 2100 M Street, N.W., Suite 140, Washington
D.C. 20037, (202) 857-3800. Synopsis of Notice of Proposed Rulemaking:
I. Background
1. In the Broadband PCS Memorandum Opinion and Order, Amendment of
the Commission's Rules to Establish New Personal Communications
Services, GN Docket No. 90-314, Memorandum Opinion and Order, 59 FR
32830 (June 24, 1994) (Broadband PCS Memorandum Opinion and Order), the
Commission declined to allow general geographic partitioning, noting
that licensees might use partitioning as a means of circumventing
construction requirements. The Commission observed, however, that a
limited partitioning scheme might facilitate participation by certain
groups, including rural telephone companies and other designated
entities, in the provision of broadband PCS. The Commission stated that
it would consider the issue of geographic partitioning in a future
proceeding to establish competitive bidding rules for broadband PCS.
2. The Commission established geographic partitioning provisions
for rural telephone companies in the Competitive Bidding Fifth Report
and Order, Implementation of Section 309(j) of the Communications Act--
Competitive Bidding, PP Docket No. 93-253, 59 FR 37566 (July 22, 1995)
(Competitive Bidding Fifth Report and Order). The Commission determined
that partitioning would satisfy the Congressional mandate to provide an
opportunity for rural telephone companies to participate at auction and
in the provision of broadband PCS. The Commission decided that rural
telephone companies could acquire a partitioned license (1) by forming
an auction bidding consortium comprised entirely of rural telephone
companies, and partitioning the license(s) won among consortium
members; or (2) through private negotiation, either before or after an
auction. The Commission required that partitioned areas conform to
established
[[Page 38694]]
geopolitical boundaries (such as county lines) and that each area
include all portions of the rural telephone company's wireline service
area within the PCS service area.
3. In the Competitive Bidding Further Notice of Proposed
Rulemaking, Implementation of Section 309(j) of the Communications
Act--Competitive Bidding, PP Docket No. 93-253, Further Notice of
Proposed Rulemaking, 59 FR 41426 (August 12, 1994) (Competitive Bidding
Further Notice of Proposed Rulemaking), the Commission requested
comment on whether to extend post-auction partitioning of broadband PCS
licenses to women- and minority-owned businesses. The Commission
observed that allowing these entities to acquire partitioned licenses
may, like rural telephone companies, facilitate their ability to
participate in the provision of broadband PCS.
4. In the Broadband PCS Memorandum Opinion and Order, the
Commission held that broadband PCS licensees may disaggregate licensed
broadband PCS spectrum under the current rules after January 1, 2000 if
they have met the five-year construction requirement. The Commission
reasoned that this limit on spectrum disaggregation for broadband PCS
would allow the PCS market to take shape and prevent anti-competitive
practices with regard to disaggregation. The Commission indicated,
however, that it would initiate a proceeding at a later date to specify
rules for allowing spectrum disaggregation.
II. Notice of Proposed Rulemaking
A. Partitioning
1. License Eligibility
The Commission proposes to relax the broadband PCS geographic
partitioning rules for the A, B, D, and E spectrum blocks to allow any
party to acquire a license for a partitioned geographic service area
that meets the eligibility requirements to be a broadband PCS licensee.
The Commission tentatively concludes that this would allow spectrum to
be used more efficiently, speed service to underserved areas, and
increase competition. The Commission invites comment on this proposal.
The Commission solicits comment on whether this proposal to liberalize
the geographic partitioning rules would hinder a rural telephone
company's ability to participate in the provision of broadband PCS.
2. Available License Area, Timing, and Financial Obligations
The Commission proposes that any partitioning of broadband PCS
licenses be along county lines in the same manner that rural telephone
companies must partition along county lines under the current rules.
The Commission tentatively concludes that this would reduce the
administrative burden and minimize interference coordination concerns.
Commenters are invited to address the merits of the Commission's
proposal.
7. Non-entrepreneur block licensees. The Commission believes that
there may be significant advantages in broadening the partitioning
rules to permit A, B, D, and E block broadband PCS licensees to
partition a portion of their license area to any qualifying entity at
any time after receiving a license. The Commission proposes that all
licensees in the A, B, D, and E blocks be permitted to partition their
license area along county lines, at any time. Commenters are invited to
discuss whether the Commission should impose any limitations on the
size of geographic area that a licensee would be allowed to partition
in the non-entrepreneurs' blocks.
8. Licensees with competitive bidding benefits. The Commission
observes that small businesses face certain barriers to entry into the
broadband PCS market that changes in the partitioning rules may
address. The Commission proposes that an entrepreneurs' block (C and F
block) licensee be permitted to partition at any time to other parties
that would be eligible for a license in those blocks. The Commission
seeks comment on this tentative conclusion.
9. The Commission seeks comment on the treatment of installment
plans for winning auction bids owned by partitioning licensees. The
Commission seeks comment on whether an entrepreneur block licensee who
partitions to another entrepreneur should be required to repay, on an
accelerated basis, a portion of the outstanding principle balance owed
under an installment payment plan. The Commission seeks comment on
whether the partitionee should be required to guarantee payment of a
portion of the partitioner's obligation.
10. The Commission tentatively concludes that some form of the
unjust enrichment requirements should apply to a partitioning licensee
that has received bidding credits or is paying the winning bid through
installment payments when the partitionee qualifies as an entrepreneur,
but would receive less favorable installment plan payments. The
Commission seeks comment on whether such unjust enrichment requirements
in this case should be on a proportional basis, and how the payments
should be calculated.
11. The Commission proposes to apply the current five-year
restriction against complete license transfers to prohibit partitioning
and/or disaggregation by an entrepreneur block licensee to a non-
entrepreneur during the first five years of the license period. The
Commission states that applying this holding period to partitioning and
disaggregation will ensure the objective that entrepreneurs and small
businesses continue to participate as PCS licensees for substantial
periods of time, and through that participation obtain experience and
profits that will enable their long-term participation in
communications industries. The Commission tentatively concludes that
after the five-year holding period, unjust enrichment requirements
should apply as a condition for approval of an application for a
partitioning transfer of an entrepreneur block license to a non-
entrepreneur. The unjust enrichment provisions would include
accelerated payment of bidding credits, unpaid principal, and accrued
unpaid interest, and would be applied on a proportional basis. The
Commission seeks comment on how such unjust enrichment amounts should
be calculated. The Commission seeks comment on whether the price paid
by the partitionee should be considered in determining the percentage
of the outstanding principle balance to be repaid.
12. The Commission seeks comment on what the respective obligations
of the participants in a partitioning transfer should be, and whether
each party should be required to guarantee all or a portion of the
partitionee's original auctions-related obligation in the event of
default or bankruptcy by any of the parties to the partitioning
transfer. The Commission seeks comment on whether the partitioner (the
original licensee) should have a continuing obligation with respect to
the entire initial geographic area. The Commission seeks comment on
whether partitioning parties should be able to determine which party
has a continuing obligation with respect to the original licensed area.
13. The Commission tentatively concludes that the proposals to
permit partitioning in the manner described above would allow broadband
PCS spectrum to be used most efficiently, speed service to unserved or
underserved areas, and facilitate competition. The Commission
tentatively concludes that the proposal to permit partitioning by
entrepreneur block licensees to similarly qualified parties would
ensure that these entities retain a significant presence in the market.
Additionally, this proposal may
[[Page 38695]]
help small business licensees compete more effectively in the areas
they retain and assist in the elimination of entry barriers to the PCS
market. The Commission solicits comment on this analysis of the
intended effects of these proposals.
3. License Term
14. The Commission proposes that a partitionee be authorized to
hold its license for the remainder of the partitioner's original ten-
year license term. The Commission tentatively concludes that this
approach is appropriate because a licensee, through partitioning,
should not be able to confer greater rights than it was awarded under
the terms of its license grant. The Commission solicits comment on this
tentative conclusion.
15. The Commission also proposes that a partitionee be afforded the
same renewal expectancy as a market area licensee. Specifically, a
partitionee would be granted a preference at a comparative renewal
proceeding if it can demonstrate that it has provided ``substantial''
service during its past license term and has substantially complied
with applicable Commission rules, policies and the Communications Act
of 1934, as amended. The Commission invites comment on this proposal.
4. Construction Requirements
16. In the Broadband PCS Memorandum Opinion and Order, the
Commission found that broadband PCS would likely be a highly
competitive service and that licensees would have incentives to
construct facilities to meet the service demands in their licensed
areas. Nevertheless, the Commission imposed minimum construction
requirements to expedite service to the public and promote efficient
use of the spectrum. Specifically, the Commission required 30 MHz
broadband PCS licensees to construct facilities that provide coverage
to one-third of the population of their service area within five years
of the license grant and two-thirds of the population within ten years.
Ten MHz licensees are required to provide coverage to one-fourth of the
service area's population within five years or, alternatively, they may
submit a showing to the Commission demonstrating that they are
providing substantial service.
17. The Commission tentatively concludes that both the partitioner
and partitionee should be subject to coverage requirements that ensure
that both portions of a partitioned licensing area will receive
service. This proposal would facilitate partitioning by offering a
choice between two different build-out options, which could be
negotiated between the partitioner and partitionee. Applicants would
then select in their assignment and transfer applications the
construction option they would be obligated to meet.
18. Under the first option, a partitionee would be obligated to
satisfy the same construction requirements as the original licensee
within its partitioned area, regardless of when it acquired the
partitioned license. The Commission invites comment on this option.
19. As a second option, the Commission proposes more modest build-
out requirements for a partitioned area where the original licensee has
met its five-year build-out requirements and certifies that it will
meet the ten-year coverage requirements for its entire license area.
Specifically, the Commission proposes that partitionees must only
satisfy the substantial service requirement for renewal expectancy for
its partitioned area by the end of the original ten-year license term.
For example: an A Block licensee who meets its five-year build-out
requirements within three years after receiving its license, may, in
its partitioning application, certify that it will meet the ten-year
coverage requirement for its original license. In this scenario, the
partitionee would only be required to meet the substantial service
requirement for its partitioned area at the end of the A Block
licensee's original ten-year license term.
20. The Commission tentatively concludes that establishing flexible
build-out requirements would encourage partitioning to entities that
have a sincere interest in providing broadband PCS and would thereby
expedite the provision of service to areas that otherwise may not
receive it as quickly. The Commission also observes that this option
may facilitate partitioning agreements, especially in the latter
portion of a license term, by acknowledging licensees' efforts to bring
broadband PCS service to their licensed areas. The Commission solicits
comment on these build-out proposals.
B. Disaggregation
1. Timing of Disaggregation
21. Currently, a broadband PCS licensee who has met the five-year
construction requirement may assign portions of its licensed PCS
spectrum after January 1, 2000. In the Broadband PCS Memorandum Opinion
and Order, the Commission stated that allowing immediate disaggregation
of spectrum before that time may impede competition in the provision of
broadband PCS.
22. The Commission tentatively concludes that the prohibitions on
disaggregation may no longer be warranted. The Commission tentatively
concludes that the current prohibitions on disaggregation may
constitute a barrier to market entry for small businesses and other
entrepreneurs which may lack the resources to participate successfully
in auctions for 30 MHz and 10 MHz broadband PCS spectrum blocks. The
Commission proposes to eliminate such market entry barriers by making
changes in the disaggregation rules. The Commission seeks comment on
these tentative conclusions.
23. The Commission proposes to allow spectrum disaggregation prior
to January 1, 2000, and to eliminate the condition that the licensee
must satisfy the five-year build-out requirements before
disaggregating. The Commission invites comment on whether to retain the
five-year build-out requirement before allowing disaggregation.
Commenters should discuss whether the goals of elimination of market
entry barriers, efficient spectrum use, expedited access to broadband
PCS service, and competition would be better served by eliminating this
restriction. Specifically, the Commission proposes to allow non-
entrepreneurs to disaggregate to other qualified entities at any time,
and to allow entrepreneurs to disaggregate to other qualified
entrepreneurs at any time, but entrepreneurs would be restricted from
disaggregating spectrum to non-entrepreneurs until after the five-year
holding period. Commenters should discuss whether any alternate
restrictions on allowing disaggregation may be appropriate.
2. Amount of Spectrum to Disaggregate
24. In the Broadband PCS Memorandum Opinion and Order, the
Commission established six frequency blocks of spectrum for licensed
broadband PCS. Three of the blocks (A, B, and C) each have 30 MHz of
spectrum, while the remaining blocks (D, E, and F) have 10 MHz of
spectrum each. The Commission determined that this broadband PCS
spectrum allocation plan would facilitate the rapid deployment of
broadband PCS and enable broadband PCS licensees to compete fully with
other commercial mobile radio services. The Commission determined that
30 MHz blocks of spectrum would facilitate competition and the rapid
development and implementation of the fullest range of PCS services and
ensure that PCS is
[[Page 38696]]
more fully competitive with other mobile radio services. The Commission
observed that 10 MHz licensees may be able to provide services ranging
from specialized applications to services comparable to those now
provided by cellular systems, through the use of advanced digital
techniques, such as Code Division Multiple Access (CDMA) and Time
Division Multiple Access (TDMA), and micro-cellular technology.
25. The Commission seeks comment and proposals for the amount of
spectrum that a licensee should be required to retain if disaggregation
is allowed on a more expedited basis. The Commission seeks comment
generally concerning whether some restriction or limit should be placed
on the amount of spectrum a licensee may disaggregate or the timing of
such disaggregation.
26. The Commission proposes that licensees disaggregate frequencies
in accordance with the pairings specified in our rules. The Commission
tentatively concludes that for these purposes, disaggregation for
broadband PCS in blocks smaller than a 1 MHz block of paired
frequencies will not be permitted. The Commission seeks comment on this
tentative conclusion. The Commission requests that commenters
suggesting alternative approaches provide technical justifications and
other relevant support in responding to this issue.
27. The Commission seeks comment on whether broadband PCS licensees
should be required to retain or acquire spectrum above the
administrative minimum of 1 MHz. The Commission also seeks comment on
the minimum amount of spectrum a disaggregatee could utilize for the
provision of broadband type services. The Commission seeks comment
generally on the relevance of the distinction between broadband and
narrowband for purposes of disaggregation rules.
28. The Commission tentatively concludes that elimination of the
current prohibitions on broadband PCS disaggregation would be
consistent with the recent elimination of the cellular/PCS cross-
ownership rule and the 40 MHz PCS spectrum cap, and the retention of
the 45 MHz CMRS spectrum cap, because such actions facilitate market
transfers of spectrum among cellular and PCS licensees while
maintaining a provision to ensure a diversity of service providers. The
Commission requests comment on this tentative conclusion, and generally
on the impact of the present 45 MHz spectrum cap on these proposals.
3. Matters Relating to Entrepreneur Block Licensees
29. The Commission proposes to allow all entrepreneur block
licensees to disaggregate to similarly qualifying parties at any time
without restriction, and to parties not eligible for entrepreneur block
licenses after a five-year holding period. The Commission tentatively
concludes that if an entrepreneur block licensee is permitted to
disaggregate to a non-entrepreneur entity after the five-year holding
period, the disaggregating entrepreneur block licensee will be required
to repay the unjust enrichment provisions on a proportional basis.
These unjust enrichment provisions would include accelerated payment of
bidding credits, unpaid principal, and accrued unpaid interest, and
would be applied on a proportional basis. The Commission seeks comment
on how such unjust enrichment amounts should be calculated. The
Commission seeks comment on whether the price paid by the
disaggregating party should be considered in determining the percentage
of the outstanding principle balance to be repaid.
30. The Commission seeks comment on what the respective obligations
of the participants in a disaggregation transfer should be, and whether
each party should be required to guarantee all or a portion of the
disaggregatee's original auctions-related obligation in the event of
default or bankruptcy by any of the parties to the disaggregation
transfer. The Commission seeks comment on whether the disaggregator
(the original licensee) should have a continuing obligation with
respect to the entire initial license. The Commission seeks comment on
whether the parties should have available a choice of options, ranging,
for example, from an accelerated payment based on purchase price to a
guarantee for a larger payment by one party in the event another party
defaults. Parties are also invited to comment on whether the
disaggregating parties should be able to determine which party has a
continuing obligation with respect to the original licensed area.
31. The Commission tentatively concludes that if an entrepreneur
block licensee is permitted to disaggregate to an entrepreneur that
would not qualify for the same level of benefits as the disaggregating
licensee, the disaggregating entrepreneur block licensee will be
required to repay a portion of the unjust enrichment provisions as they
apply to a full assignment of a license. The Commission seeks comment
on whether this should be a proportional amount of its bidding credits,
unpaid principal, and accrued unpaid interest to the U.S. Treasury, and
how the amounts should be calculated. The Commission seeks comment on
what provisions, if any, should be adopted to address the situation of
an entrepreneur block licensee's disaggregation followed by default in
payment of a winning bid at auction.
32. The Commission seeks comment on whether there should be
different requirements for entrepreneur block licensees and for non-
entrepreneur block licensees regarding the amounts of spectrum which a
licensee must retain or may disaggregate.
4. Construction Requirements
33. The Commission's rules currently require 30 MHz broadband PCS
licensees to construct facilities that provide coverage to one-third of
the population of their service area within five years of the initial
license grant and two-thirds of the population within ten years. Ten
MHz licensees are required to construct facilities that provide
coverage to one-fourth of the service area's population within five
years or, alternatively, they may submit a showing to the Commission
demonstrating that they are providing substantial service.
34. To address the concerns raised in the Broadband PCS Memorandum
Opinion and Order about anti-competitive incentives to disaggregate and
engage in spectrum warehousing, the Commission proposes two
construction build-out options to apply to entities receiving
disaggregated spectrum that do not already possess a broadband PCS
license in the same geographic service area. Such applicants seeking to
receive disaggregated spectrum would select the construction option for
which they would be obligated to meet in their assignment and transfer
applications. The Commission tentatively concludes that this proposal
would prevent licensees from warehousing spectrum and would enable new
entrants to provide service.
35. Under the first option, a disaggregatee entering the geographic
market would be obligated to satisfy the same construction requirements
as the licensee, regardless of when it acquired the disaggregated
spectrum. For example, an entity that acquires spectrum from a 30 MHz
broadband PCS licensee (an A, B, or C block licensee) would be
obligated to provide service to at least one-third of the population in
the license area within five years of the underlying license term and
two-thirds of the population in the
[[Page 38697]]
license area by the end of the ten-year license term. An entity that
acquires spectrum from a 10 MHz broadband PCS licensee (a D, E, or F
block licensee) would have to provide adequate service to at least one-
quarter of the population in the license area or make a showing of
substantial service at the five-year benchmark. The Commission
tentatively concludes that this approach would prevent spectrum
warehousing and ensure expedited access to broadband PCS services.
Commenters are invited to discuss the merits of this option.
36. As a second option, the Commission proposes a modified build-
out requirement after the disaggregating licensee has met its five-year
build-out requirement and certifies that it will meet the ten-year
construction requirement by the end of its license term. Specifically,
a disaggregatee must only satisfy the five-year build-out requirements
for the license area by the end of the original ten-year license term.
The Commission tentatively concludes that this build-out option will
facilitate the rapid introduction of broadband PCS service and increase
spectrum efficiency. The Commission seeks comment on this approach.
Commenters are also invited to address whether these build-out
requirements should apply where a licensee disaggregates a portion of
its spectrum after the initial ten-year license term has expired.
37. The Commission proposes to require, as a pre-condition for
approving a proposed disaggregation, certifications from both the
disaggregator and the disaggregatee that the time remaining before the
ten-year construction benchmarks is sufficient for the disaggregator
and disaggregatee to meet the pertinent construction benchmark for
their respective licenses. This proposal would ensure against delay in
the build-out of PCS, and place all parties on notice that the
construction requirements must be considered during the negotiations.
In addition, disaggregatees must file maps and other supporting
documents showing compliance with the construction requirements within
the appropriate five-year and ten-year bench marks of the date of their
initial licenses.
38. The Commission proposes that if a licensee fails to meet the
construction requirements, the license of the disaggregator or
disaggregatee would revert back to the Commission. In light of the fact
that the disaggregator and disaggregatee are each licensees, their
prospective construction requirements are independent from each other
and failure to satisfy one construction requirement will not affect the
renewal of the other.
39. The Commission proposes no new construction requirements for
disaggregatees already possessing a broadband PCS license in a
geographic service area, on the premise that these licensees are
already subject to coverage requirements under their existing licenses.
The Commission seeks comment on this proposal. The Commission seeks
comment on the construction requirements, if any, that should apply to
other CMRS licensees receiving disaggregated broadband PCS spectrum.
5. License Term
40. The Commission proposes a similar license term for
disaggregation as for partitioning, i.e., that a disaggregatee would be
authorized to hold its license for the disaggregated spectrum for the
remainder of the disaggregator's original ten-year license term. The
Commission believes this approach is appropriate because a licensee,
through disaggregation, should not be able to bestow greater rights
than it was awarded under the terms of its license grant. The
Commission seeks comment on whether administrative efficiency and
convenience for licensees support a limited exception to this general
rule. The Commission proposes that a disaggregatee be afforded the same
renewal rights as a market area licensee. A disaggregatee would be
granted a preference at a comparative renewal proceeding if it can
demonstrate that it has provided ``substantial'' service during its
past license term and has substantially complied with applicable
Commission rules, policies, and the Communications Act. The Commission
invites comment on this proposal.
C. Related Matters
1. Combination of Partitioning and Disaggregation
41. The Commission tentatively concludes that combinations of
partitioning and disaggregation should be permitted. The Commission
seeks comment on whether the benefits of allowing licensees to combine
disaggregation and partitioning at any time outweigh factors supporting
restrictions on such a combination. In those situations where the
combination of partitioning and disaggregation is allowed under the
proposed rules, the Commission proposes to implement the rules proposed
for partitioning in the event there is a conflict in the application of
the rules. The Commission seeks comment on where such conflicts
conceivably could arise and on the overall approach to the combination
of partitioning and disaggregation addressed herein.
2. Licensing
42. The Commission proposes to follow existing partial assignment
procedures for broadband PCS licenses in reviewing requests for
geographic partitioning, disaggregation, or a combination of both.
Thus, the licensee must file an FCC Form 490 that is signed by both the
licensee and qualifying entity. The qualifying entity would also file
an FCC Form 430 unless a current FCC Form 430 is already on file with
the Commission. An FCC Form 600 would be filed by the qualifying entity
to receive authorization to operate in the market area which is being
partitioned or to modify an existing station of the qualifying entity
to include the new or additional market area being partitioned. The
Commission seeks comment on these proposed licensing rules.
43. The Commission proposes that any requests for a partitioned
license or disaggregated spectrum would contain the FCC Forms 490, 430,
and 600 and be filed as one package under cover of the FCC Form 490.
Parties are invited to comment on whether any additional procedures
should be required. A broadband PCS disaggregatee must file FCC Form
430 qualifying it as a common carrier unless a current FCC Form 430 is
already on file with the Commission. An FCC Form 600 should be filed by
the disaggregatee to receive authorization to operate in the market
area which is covered by the disaggregated spectrum or to modify an
existing station of the disaggregatee to include the new or additional
spectrum being disaggregated. Parties are invited to comment whether
any additional procedures should be required.
3. Technical and Microwave Relocation Rules
44. In the Broadband PCS Second Report and Order, Amendment of the
Commission's Rules to Establish New Personal Communications Services,
GN Docket No. 90-314, Second Report and Order, 58 FR 59174 (November 8,
1993) (Broadband PCS Second Report and Order) the Commission adopted
minimal technical standards to allow PCS to develop in the most rapid,
economically feasible and diverse manner. The Commission tentatively
concludes that the current technical rules with respect to service area
boundary limits and protections, which provide for coordination and
negotiation among licensees, should be maintained and applied to
partitioned license areas. The Commission seeks
[[Page 38698]]
comment on this tentative conclusion. The Commission seeks comment on
whether any modifications to the technical rules are needed to
accommodate these partitioning and disaggregation proposals.
45. The Commission tentatively concludes that a new entrant PCS
licensee who gains its license through partitioning or disaggregation
should be treated as any other subsequent PCS licensee for purposes of
the microwave relocation cost-sharing plan, including eligibility for
installment plan payments if the transferee would be eligible for an
installment plan equivalent to that enjoyed by the transferring
licensee, unless the reimbursement obligations to which they would be
subject have already been paid by the transferring licensee. The
Commission seeks comment on this approach.
4. Clearinghouse for Spectrum.
46. The Commission seeks comment on whether establishing an
electronic database to make more readily accessible the information
about licensed PCS spectrum would lower market entry barriers,
consistent with the mandate of Section 257 of the Telecommunications
Act of 1996, or otherwise be in the public interest. The Commission
requests comment on how to encourage the creation of private
information clearinghouses on available spectrum and what procedures
could be utilized to assist small businesses in obtaining available
licenses or spectrum from licensees to meet very limited or defined
telecommunications needs. The Commission also seeks comment on how to
promote information clearinghouses or other market solutions so that
the public can be informed about spectrum availability in particular
geographic areas or excess or available spectrum that could be
disaggregated in minimum amounts.
III. Conclusion
47. The Commission believes that these partitioning and
disaggregation proposals are consistent with a pro-competitive
deregulatory national policy framework and will promote the rapid
creation of a competitive market to deliver broadband PCS to the
largest number of consumers. These proposals are designed to meet the
Congressional objectives of opening telecommunications markets to
competition, providing advanced technologies and services efficiently
and quickly, and identifying and eliminating market entry barriers for
entrepreneurs and other small businesses in the provision and ownership
of telecommunications services.
IV. Procedural Matters and Ordering Clauses
A. Regulatory Flexibility Act
Summary: As required by Section 603 of the Regulatory Flexibility
Act, the Commission has prepared an Initial Regulatory Flexibility
Analysis (IRFA) of the expected impact on small entities of the
policies and rules proposed in this Notice of Proposed Rulemaking.
Reason for Action: This rulemaking proceeding was initiated to
secure comment on proposals to modify our broadband PCS rules to permit
partitioning and disaggregation for all Part 24 licensees. The
proposals advanced in the Notice of Proposed Rulemaking are also
designed to implement Congress' goal of giving small businesses the
opportunity to participate in the provision of spectrum-based services.
Objectives: The Commission proposes changes to its rules for
broadband PCS that are intended to facilitate the efficient use of
broadband PCS spectrum, increase competition, and expedite the
provision of broadband PCS service to areas that may not otherwise
receive broadband PCS or other wireless services in the near term.
These proposals seek to increase the level of small business
participation in the provision of broadband PCS. The Commission
proposes to allow broadband PCS licensees in the non-entrepreneurs'
blocks to partition any portion of their geographic license area to
entities that are eligible to be broadband PCS licensees. The
Commission further proposes to allow entrepreneurs' block licensees to
partition any portion of their licensed geographic area to entities
that qualify as entrepreneurs and are otherwise eligible to be
broadband PCS licensees. Additionally, the Commission proposes to
eliminate the January 1, 2000 benchmark for disaggregation, and allow
disaggregation any time after the broadband PCS licensee meets the
five-year build-out requirement. Specifically, the Commission proposes
to allow broadband PCS licensees in the non-entrepreneurs' blocks to
disaggregate spectrum to entities that are eligible to be broadband PCS
licensees. The Commission proposes to allow entrepreneurs' block
licensees to disaggregate to another entrepreneur, otherwise qualified
to be a broadband PCS licensee. Additionally, the Commission proposes
to establish license terms that permit partitionees to hold partitioned
licenses and disaggregatees to hold disaggregated spectrum for the
remaining duration of the original ten-year license term. The
Commission also proposes to establish construction requirements to
ensure expedient access to broadband PCS service in partitioned areas
to ensure coverage and increase spectrum efficiency. Finally, the
Commission proposes to allow licensees to combine partitioning and
disaggregation under limited circumstances.
Legal Basis: The proposed action is authorized under Sections 4(i),
257, 303(r) and 309(j) of the Communications Act of 1934, as amended,
47 U.S.C. Secs. 154(i), 257, 303(r) and 309(j), as amended.
Reporting, Recordkeeping, and Other Compliance Requirements: The
proposals under consideration in this Notice of Proposed Rulemaking
include the possibility of imposing reporting and recordkeeping
requirements for small businesses seeking licenses through the proposed
partitioning and disaggregation rules. The information requirements
would be used to determine if the licensee is a qualifying entity to
obtain a partitioned license or disaggregated spectrum. This
information will be a one-time filing by any applicant requesting such
a license. The information will be submitted on the FCC Forms 490 (or
430 and/or 600 filed as one package under cover of the Form 490) which
are currently in use and have already received OMB clearance. We
estimate that the average burden on the applicant is three hours for
the information necessary to complete these forms. We estimate that 75
percent of the respondents (which may include small businesses) will
contract out the burden of responding. We estimate that it will take
approximately 30 minutes to coordinate information with those
contractors. The remaining 25 percent of respondents (which may include
small businesses) are estimated to employ in-house staff to provide the
information. Applicants (including small businesses) filing the package
under cover of FCC Form 490 electronically will incur a $2.30 per
minute on-line charge. On-line time would amount to no more than 30
minutes. We estimate that 75 percent of the applicants may file
electronically. We estimate that applicants contracting out the
information would use an attorney or engineer (average of $200 per
hour) to prepare the information.
Federal Rules Which Overlap, Duplicate or Conflict With These
Rules: None.
Description, Potential Impact, and Number of Small Entities
Involved: The rule changes proposed in this proceeding will affect all
small businesses which avail themselves of these rule changes,
including small
[[Page 38699]]
businesses currently holding broadband PCS licenses who choose to
partition and/or disaggregate, and small businesses who may acquire
licenses through partitioning and/or disaggregation. The Commission is
required to estimate in its Final Regulatory Flexibility Analysis the
number of small entities to which a rule will apply, provide a
description of such entities, and assess the impact of the rule on such
entities. To assist the Commission in this analysis, commenters are
requested to provide information regarding how many total broadband PCS
entities, existing and potential, would be affected by the proposed
rules in the Notice of Proposed Rulemaking. In particular, the
Commission seeks estimates of how many broadband PCS entities, existing
and potential, will be considered small businesses. ``Small business''
is defined as a firm that has revenues of less than $40 million in each
of the last three calendar years. This definition was used in the PCS C
block auction and approved by the Small Business Administration. The
Commission seeks comment as to whether this definition is appropriate
in this context. Additionally, the Commission requests each commenter
to identify whether it is a small business under this definition. If
the commenter is a subsidiary of another entity, this information
should be provided for both the subsidiary and the parent corporation
or entity.
The broadband PCS spectrum is divided into six frequency blocks
designated A through F. The Commission has auctioned broadband PCS
licenses in blocks A, B, and C. The Commission does not have sufficient
information to determine whether any small businesses within the SBA-
approved definition bid successfully for licenses A or B block
auctions. There were 89 winning bidders that qualified as small
businesses in the C block PCS auctions. Based on this information, the
Commission concludes that the number of broadband PCS licensees
affected by the rules proposed in this Notice of Proposed Rulemaking
includes the 89 winning bidders that qualified as small entities in the
C block broadband PCS auction.
The Commission estimates that up to 10,370 PCS licensees or
potential licensees could take the opportunity to partition and/or
disaggregate a license or obtain a license through partitioning and/or
disaggregation. This estimate is based on the total number broadband
PCS licenses auctioned and subject to auction, 2,074, and the estimate
that each license would probably not be partitioned and/or
disaggregated to more than five parties. The Commission notes that the
A and B blocks each consist of 51 licenses (a total of 102 licenses)
and the C, D, E, and F blocks each consist of 493 licenses (a total of
1,972 licenses). Currently the C and F block licensees and potential
licensees (holding a total of 986 licenses) must be small businesses or
entrepreneurs with average gross revenues over the past three years of
less than $125 million. Under the proposed rules they will be permitted
to partition and/or disaggregate to other qualified entrepreneurs. The
A, B, D, and E block licensees and potential licensees (holding a total
of 1,088 licenses) will also be permitted under the proposed rules to
partition and/or disaggregate to small businesses.
At present, there have been no auctions held for the D, E, and F
blocks of broadband PCS spectrum. The Commission anticipates a total of
1,479 licenses will be awarded in the D, E, and F block PCS auctions,
which are scheduled to begin on August 26, 1996. Eligibility for the F
block licenses is limited to entrepreneurs with average gross revenues
of less than $125 million. However, there is no basis upon which to
estimate the number of licenses that will be awarded to small
businesses, nor is there a basis for an estimate as to how many small
businesses will win D or E block licenses. Given the fact that nearly
all radiotelephone companies have fewer than 1,000 employees, and that
no reliable estimate of the number of D, E, and F block licensees can
be made, the Commission assumes, for purposes of this IRFA that all of
the licenses will be awarded to small businesses. The Commission
believes that it is possible that a significant number of the up to
10,370 PCS licensees or potential licensees who could take the
opportunity to partition and/or disaggregate a license or who could
obtain a license through partitioning and/or disaggregation will be
small businesses.
Any Significant Alternatives Minimizing the Impact on Small
Entities Consistent with the Stated Objectives: The proposals advanced
in the Notice of Proposed Rulemaking are designed to implement
Congress' goal of giving small businesses, as well as other entities,
the opportunity to participate in the provision of spectrum-based
services. The impact on small entities in the proposals in the Notice
of Proposed Rulemaking is the opportunity to enter the broadband PCS
market through the partitioning and disaggregation proposals herein.
The rule changes proposed in the Notice of Proposed Rulemaking by
the Commission are consistent with the mandate under the Communications
Act of 1934, as amended, to identify and eliminate market entry
barriers for entrepreneurs and small businesses in the provision and
ownership of telecommunications services, and the mandate under Section
309(j) of the Communications Act of 1934, as amended, to utilize
auctions to ensure that small, minority and women-owned businesses and
rural telephone companies have an opportunity to participate in the
provision of spectrum-based services. The Commission's proposals in
this Notice of Proposed Rulemaking, if implemented, will facilitate
market entry by parties who may lack the financial resources for
participation in PCS auctions, including small businesses. These
proposals, if implemented, will promote technological advancement and
participation by diverse entities, as well as facilitate the efficient
use of broadband PCS spectrum. The alternative to the Commission's
proposal to allow geographic partitioning would be to maintain the
status quo and only permit rural telephone companies to utilize
partitioning through forming an auction bidding consortium comprised
entirely of rural telephone companies or through private negotiation
post-auction. Limiting geographic partitioning to rural telephone
companies would not permit other small businesses to obtain partitioned
licenses or to partition to other parties, and thus would not promote
the participation of small businesses in the provision of PCS. The
Commission also noted that the proposed partitioning policy would allow
spectrum to be used more efficiently, speed service to underserved
areas, and increase competition.
In this Notice of Proposed Rulemaking, the Commission observed that
initially general partitioning by broadband PCS licensees was not
permitted because of the concern that licensees might use partitioning
as a means to circumvent construction requirements. The Commission
tentatively concludes that both the partitioner and partitionee should
be subject to coverage requirements that ensure that both portions of a
partitioned licensing area will receive service. The Commission
proposes facilitating partitioning by offering a choice between two
different build-out options, which could be negotiated between the
partitioner and partitionee. The first option proposed by the
Commission would require a partitionee to satisfy the same construction
[[Page 38700]]
requirements as the original licensee within its partitioned area,
regardless of when it acquired the partitioned license. This approach
is consistent with the present construction requirements for rural
telephone companies. The second option proposed by the Commission would
apply where the original licensee has met its five-year build-out
requirements and certifies that it will meet the ten-year coverage
requirements for its entire license area. Specifically, the Commission
proposes that partitionees must only satisfy the substantial service
requirement for renewal expectancy for its partitioned area by the end
of the original ten-year license term. The Commission tentatively
concludes that these proposed flexible build-out requirements, if
adopted, will encourage partitioning to entities that have a sincere
interest in providing broadband PCS and will thereby expedite the
provision of service to areas that otherwise may not receive it as
quickly.
The Commission considered the fact that many broadband PCS
licensees may meet their five-year build-out construction obligation
early, and therefore proposes revisiting the current prohibition on
disaggregation. The Commission considered the alternative, requiring
PCS licensees to wait until January 1, 2000 before disaggregating, and
noted that this would not permit small businesses to disaggregate or
obtain disaggregated spectrum and therefore, would not promote an
efficient use of spectrum.
The Commission is proposing to allow partitioning and/or
disaggregation by entrepreneurs only to other qualified entrepreneurs
for five years, to ensure the objective that entrepreneurs and small
businesses continue to participate as PCS licensees for substantial
periods of time, and through that participation obtain experience and
profits that will enable their long term participation in
communications industries. The Commission is proposing to apply
proportional unjust enrichment provisions for partitioning and
disaggregation by entrepreneurs to non-entrepreneurs after the five-
year period. The alternative to this proposal, would be to either
prohibit partitioning by entrepreneurs or to allow entrepreneurs who
have benefitted from special bidding provisions to become unjustly
enriched by immediately partitioning a portion of their license area to
parties that do not qualify for such benefits. The Commission also
noted that allowing partitioning and/or disaggregation by entrepreneurs
only to other qualified entrepreneurs for five years is consistent with
the Commission's rule allowing license transfers by entrepreneurs only
to other entrepreneurs in the first five years of the license period.
The Commission believes that allowing entrepreneurs and small
businesses to partition and/or disaggregate their licenses to other
qualified entrepreneurs and small businesses, and allowing all non-
entrepreneurs to partition and/or disaggregate to any qualified party
(including small businesses) will help attain the Congressional
objective of ensuring that small businesses have an opportunity to
participate in the provision of broadband PCS. These proposals will
enable a wide variety of applicants, including small businesses, to
overcome entry barriers in the provision and ownership of
telecommunications services.
This Notice of Proposed Rulemaking solicits comment on a variety of
alternatives discussed herein. Any significant alternatives presented
in the comments will be considered.
IRFA Comments: The Commission requests public comment on the
foregoing IRFA. Comments must have a separate and distinct heading
designating them as responses to the IRFA and must be filed by the
comment deadlines set forth in the Notice of Proposed Rulemaking.
B. Paperwork Reduction Act
This Notice of Proposed Rulemaking contains either a proposed or
modified information collection. The Commission, as part of its
continuing effort to reduce paperwork burdens, invites the general
public and the Office of Management and Budget (OMB) to comment on the
information collections contained in this Notice of Proposed
Rulemaking, as required by the Paperwork Reduction Act of 1995, Public
Law No. 104-13. Public and agency comments are due at the same time as
other comments on this Notice of Proposed Rulemaking; OMB notification
of action is due September 23, 1996. Comments should address: (a)
Whether the proposed collection of information is necessary for the
proper performance of the functions of the Commission, including
whether the information shall have practical utility; (b) the accuracy
of the Commission's burden estimates; (c) ways to enhance the quality,
utility, and clarity of the information collected; and (d) ways to
minimize the burden of the collection of information on the
respondents, including the use of automated collection techniques or
other forms of information technology.
Dates: Written comments by the public on the proposed and/or modified
information collections are due August 15, 1996. Written comments must
be submitted by the Office of Management and Budget (OMB) on the
proposed and/or modified information collections on or before September
23, 1996.
Addresses: In addition to filing comments with the Secretary, a copy of
any comments on the information collections contained herein should be
submitted to Dorothy Conway, Federal Communications Commission, Room
234, 1919 M Street, N.W., Washington D.C. 20554, or via the Internet to
[email protected], and to Timothy Fain, OMB Desk Officer, 10236 NEOB,
725-17th Street, N.W., Washington D.C. 20503 or via the Internet to
[email protected].
For Further Information Contact: For additional information concerning
the information collections contained in this Notice of Proposed
Rulemaking contact Dorothy Conway at (202) 418-0217, or via the
Internet at [email protected].
Supplementary Information:
Title: Geographic Partitioning and Spectrum Disaggregation by
Commercial Mobile Radio Services Licensees and Implementation of
Section 257 of the Communications Act-Elimination of Market Entry
Barriers.
Type of Review: New Collection.
Respondents: Number of Respondents: We estimate up to 10,370 PCS
licensees or potential licensees could take the opportunity to
partition and/or disaggregate a license or obtain a license through
partitioning and/or disaggregation.
Estimated Time Per Response: The average burden on the applicant is
3 hours for the information necessary to complete FCC Forms 490, 430 or
600 and be filed as one package under cover of the FCC Form 490. We
estimate 75% of respondents will contract out the burden of responding.
We estimate that it will take approximately 30 minutes to coordinate
information with those contractors. The remaining 25% of respondents
are estimated to employ in house staff to provide the information.
7,778 applications (contracting out) x .5 hour = 3,889 hours. 2,592
applications (in house) x 3 hours = 7,776 hours.
Total burden = 3,889 + 7,776 = 11,665 hours.
Estimated Cost to the Respondent: Total capital and start-up costs:
Applicants wishing to file the package under cover of the FCC Form 490
electronically will incur a $2.30 per minute on-line charge. On-line
time
[[Page 38701]]
would amount to no more than 30 minutes. Seventy-five percent of the
respondents are expected to file electronically. 7,778 applications
x $2.30 x = $536,682. All other respondents would be expected to file
manually and would incur the following costs: 2,592 applications
x $1.15 = $2,981. Total capital and start-up costs = $536,682+$2,981 =
$539,663.
We assume that the respondents contracting out the information
would use an attorney or engineer (average of $200 per hour) to prepare
the information. 7,778 applications x $200 per hour x 3 hours =
$4,666,800. Total Respondent Costs: $539,663 + $4,666,800 = $5,203,463.
Cost to the Federal Government: The government review time for this
submission is estimated at 15 minutes per response with the review
being done by personnel at the GS-6 level. 10,370 applications x $3.39
= $35,154.
C. Ex Parte Rules--Non-Restricted Proceeding
This is a non-restricted notice and comment rulemaking proceeding.
Ex parte presentations are permitted except during the Sunshine Agenda
period, provided they are disclosed as provided in the Commission's
rules, 47 CFR Secs. 1.1202, 1.1203, 1.1206(a).
D. Comment Period
Pursuant to applicable procedures set forth in Sections 1.415 and
1.419 of the Commission's rules, interested parties may file comments
on or before August 15, 1996. Reply comments are to be filed on or
before August 30, 1996. To file formally in this proceeding, you must
file an original and four copies of all comments, reply comments, and
supporting comments. If you want each Commissioner to receive a
personal copy of your comments, you must file an original plus nine
copies. You should send comments and reply comments to Office of the
Secretary, Federal Communications Commission, Washington D.C. 20554. A
copy of all comments should also be filed with the Commission's copy
contractor, ITS, Inc., 2100 M Street, N.W., Suite 140, (202) 857-3800.
E. Authority
The above action is authorized under the Communications Act,
Secs. 4(i), 303(r), 309(c), 309(j), and 332, 47 U.S.C. Secs. 154(i),
303(r), 309(c), 309(j), and 332, as amended.
F. Ordering Clauses:
It is ordered that, pursuant to Sections 4(i), 303(r), 309(c),
309(j), and 332 of the Communications Act of 1934, as amended, 47
U.S.C. Secs. 154(i), 303(r), 309(c), 309(j), and 332, a NOTICE OF
PROPOSED RULEMAKING is hereby ADOPTED.
It is further ordered, that comments in WT Docket No. 96-148 will
be due August 15, 1996 and reply comments will be due August 30, 1996.
List of Subjects in 47 CFR Part 24
Communications common carriers, Federal Communications Commission,
Reporting and recordkeeping requirements.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 96-18847 Filed 7-24-96; 8:45 am]
BILLING CODE 6712-01-P
Complete official Federal Register PDF
FR Doc. 96-18836 Land Disposal Program Flexibility Act of 1996Surface Impoundment Study
[Federal Register Volume 61, Number 144 (Thursday, July 25, 1996)]
[Proposed Rules]
[Pages 38684-38687]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18836]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 148, 261, 268, 271
[FRL-5542-2]
RIN 2050-AD38
Land Disposal Program Flexibility Act of 1996--Surface
Impoundment Study
AGENCY: Environmental Protection Agency.
ACTION: Request for comments.
-----------------------------------------------------------------------
SUMMARY: On March 26, 1996, the President signed the Land Disposal
Program Flexibility Act of 1996. This statute overrules certain parts
of the D.C. Circuit's opinion in Chemical Waste Management v. EPA, 976
F. 2d 2 (D.C. Cir. 1992), cert. denied 113 S.Ct. 1961 (1993) which
relate to managing so-called decharacterized wastes--characteristic
hazardous waste whose characteristic has been removed before land
disposal--in centralized wastewater management systems regulated under
the Clean Water Act (CWA) or the Safe Drinking Water Act (SDWA).
The subject of this Federal Register document is a related
provision in the statute which requires that not later than five years
after the date of enactment, EPA shall complete a study of potential
risks to human health or the environment posed by managing these
decharacterized hazardous wastes in either a) surface impoundments
which are part of wastewater treatment systems whose ultimate discharge
is regulated under the CWA, or b) Class I non-hazardous injection wells
regulated under the SDWA.
EPA is seeking to develop more information in order to prepare the
portion of the study dealing with surface impoundments. This Federal
Register document has been prepared for industry representatives and
environmental groups to clearly define the Agency's expectations in
requesting draft methodologies that outline the conceptual design of
the study, including how best to collect data, data quality assurance/
quality control
(QA/QC), risk assessment, and peer review. Concurrently, the Agency
will develop a methodology to ensure that requirements of the
legislation are satisfied and the conceptual design of the study is
balanced with those of the commenters. Upon receipt of draft
methodologies from commenters, the Agency will convene a workgroup to
select an overall, scientifically defensible approach to address the
requirements of the legislation. The selected methodology will then be
subject to a peer review process conducted by a peer review panel set
up by the Agency to provide oversight and QA/QC of the study.
DATES: Draft methodologies are requested by September 23, 1996.
ADDRESSES: To submit draft methodologies, the public must send an
original and two copies to Docket Number F-96-PMWA-FFFFF, located at
the RCRA Docket. The mailing address is: RCRA Information Center, U.S.
Environmental Protection Agency (5305G), 401 M Street, SW., Washington,
DC 20460. The RCRA Information Center is located at 1235 Jefferson
Davis Highway, First Floor, Arlington, Virginia. The RCRA Information
Center is open for public inspection and copying of supporting
information for RCRA rules from 9:00 a.m. to 4 p.m., Monday through
Friday, excluding Federal holidays. The public must make an appointment
to review docket materials by calling (703) 603-9230. The public may
copy a maximum of 100 pages from any regulatory document at no cost.
Additional copies cost $0.15 per page.
FOR FURTHER INFORMATION CONTACT: For general information or to order
paper copies of this Federal Register document, call the RCRA Hotline.
Callers within the Washington Metropolitan Area must dial (703) 412-
9810 or TDD (703) 412-3323 (hearing impaired). Long-distance callers
may call 1-800-424-9346 or TDD 1-800-553-7672. The RCRA Hotline is open
Monday through Friday from 9:00 a.m. to 6:00 p.m., Eastern Standard
Time. For other information on this notice, contact Linda Martin
(5307W), Office of Solid Waste, 401 M Street, SW., Washington, D.C.
20460, phone (703) 308-0499.
SUPPLEMENTARY INFORMATION:
Paperless Office Effort
EPA is asking prospective commenters to voluntarily submit one
additional copy of their comments on labeled personal computer
diskettes in ASCII (TEXT) format or a word processing format that can
be converted to ASCII (TEXT). It is essential to specify on the disk
label the word processing software and version/edition as well as the
commenter's name. This will allow EPA to convert the comments into one
of the word processing formats utilized by the Agency. Please use
mailing envelopes designed to physically protect the submitted
diskettes. EPA emphasizes that submission of comments on diskettes is
not mandatory, nor will it result in any advantage or disadvantage to
any commenter. This expedited procedure is in conjunction with the
Agency ``Paperless Office'' campaign. For further information on the
submission of diskettes, contact Linda Martin of the Economics,
Methods, and Risk Assessment Division at (703) 308-0499. This Federal
Register Notice is available on the Internet System through EPA Public
Access Server at gopher.epa.gov or through WWW.epa.gov. For the text of
the notice, choose: Rules, Regulations, and Legislation; the FR-Waste;
finally, Year/Month/Day.
Request for Comments
On March 26, 1996, President Clinton signed into law the Land
Disposal Program Flexibility Act of 1996. This legislation amends
section 3004(g) of RCRA to overrule portions of the District of
Columbia Circuit Court of Appeals' 1992 decision (Chemical Waste
Management v. EPA, 976 F. 2d 2) dealing with the requirement to treat
wastes that as generated exhibit a characteristic of hazardous waste,
but
[[Page 38685]]
are diluted to remove that characteristic and are then placed in land
disposal units--either surface impoundments that are part of Clean
Water Act wastewater treatment systems or Class I injection wells. The
legislation, by and large, states that treatment of such wastes is not
required before placing them in these land disposal units. See
generally, 61 FR 15660 (April 8, 1996) codifying portions of this
legislation.
The statute further requires EPA to conduct a study characterizing
risks to human health or the environment associated with management of
decharacterized wastes in impoundments which are part of Clean Water
Act treatment systems, or in Class I injection wells. EPA is also
authorized to develop additional standards for such units as may be
necessary to protect human health and the environment, and such
standards could be based on the results of the study. (RCRA section
3004(g)(10)). This notice concerns the part of the study dealing with
surface impoundments.
In conducting the Surface Impoundment Study (hereafter referred to
as ``the study''), the Agency hopes to arrange and maintain a
cooperative effort with all interested parties as EPA moves forward to
develop a scientifically defensible work plan for conducting the study.
Input into the data collection and development of the study design, as
well as information regarding current management practices will prove
invaluable in developing such a work plan.
Currently, the Agency is developing a draft methodology to assess
potential risks posed by management of decharacterized wastes in
surface impoundments. Key steps being taken to develop a draft
methodology include identifying issues related to conducting the study,
conducting meetings with interested parties, establishing a methodology
for conducting the study, and establishing a peer-review structure for
the study. The objective of the approach is to address Congress'
concerns by assessing potential risks posed by management of
decharacterized wastes in surface impoundments, assessing the degree to
which existing State/Federal/Tribal programs effectively mitigate those
risks, and finally determining which State/Federal/Tribal laws or
programs are best equipped to manage the remaining risks, or whether
independent controls may be needed.
To this end, EPA requests that interested industry, environmental
and state groups provide input to the Agency into the development of
the study such that Congress' concerns are addressed. Issues for which
input is needed include data collection, quality assurance/quality
control of data, development of risk assessment methods, establishment
of a peer-review structure for the study, and assessment of current
State/Federal/Tribal regulations or programs that address risks posed
by decharacterized wastewaters managed in surface impoundments.
Additionally, the Agency also requests input regarding regulations or
programs that could be developed to address these risks.
Specifically, EPA requests that each interested group develop
proposed methodologies and work plans for conducting the study of risks
and existing regulations associated with surface impoundments receiving
decharacterized wastes. Specific elements to be included in the
methodology are outlined below. Following the methodology outline is
EPA's preliminary schedule for completing the study, which is included
in this document in order that commenters can better understand how and
when EPA intends to proceed, and the role commenters can play. EPA will
then evaluate proposed work plans submitted by commenters, in
combination with its own work plan, by means of a peer review process.
Methodology Outline
Proposed methodologies should be organized according to the
following format.
I. Conceptual Approach to the Study
The most critical element of the study is the completion of a high-
quality, peer-reviewed risk assessment, since accurate identification
of priorities for surface impoundment regulation and conclusions about
the need for new regulations depend on the risk results. The
development of an appropriate risk assessment methodology is therefore
very important. The purpose of this section of the proposed methodology
is to address key elements of the methodology and threshold questions,
including but not limited to:
A. What should be the overall scope of the study?
B. What should be done to ensure credibility of the study?
C. What do you expect your group's role to be in conducting the
study?
D. How heavily should we rely upon fate and transport modeling
versus actual exposure monitoring?
E. Can the study be completed with available data?
F. How should additional data be collected?
G. Are there innovative mechanisms to conducting or designing the
study using third parties (scientific organizations)?
II. Detailed Methodology
A. Sampling strategy:
i. Identification of the universe of facilities/ Study Population
ii. Description of the approach to sampling the universe of
facilities/ Study Population (representativeness of the sample)
1. Random versus Judgmental
2. Stratification
3. Sample size
B. Risk Characterization 1:
---------------------------------------------------------------------------
\1\ It should be noted that, from the advent of the D.C.
Circuit's decision, EPA has repeatedly solicited data on the types,
volumes, and concentrations of hazardous constituents, plus types
and magnitudes of releases from surface impoundments managing
decharacterized wastes. See, e.g., Supplemental Information to
Notice of Data Availability (58 FR 4972, Jan. 19, 1993) at pp. 17,
18, 19; Phase 4 Proposed Rule (60 FR 43654, Aug. 22, 1995). To date,
members of affected industry have provided virtually no hard
information in response. EPA hopes that such information will be
forthcoming as it develops the surface impoundment study.
---------------------------------------------------------------------------
i. Data/Source Term Characterization
1. Facility
a. History
b. Location
c. Surrounding Land Uses
d. Meteorological Data
e. Subsurface Hydrogeology
2. Units
a. Point of Generation quantity of characteristic waste generated
for each facility and/or industry; quantity of sludge generated
(including sludge that is currently dredged from affected surface
impoundments and sludge left in place in these units)
b. Surface Impoundments (including the use of surface impoundments
or tanks to treat decharacterized wastewaters; types of surface
impoundments used; size of surface impoundments; waste segregation and
treatment practices at the unit, including the quantity of
characteristic wastewaters that are segregated and the potential cost
associated with segregating wastewaters)
c. Storm water Runoff (including the use of surface impoundments
for Storm water runoff)
3. Hazardous Constituents in Decharacterized Wastewaters
a. Physical state
b. Toxicity information
c. Concentration
1. At the point of generation (prior to aggregation and/or
decharacterization)
2. In surface impoundment based treatment systems (near the point
at which they might be released to the environment)
[[Page 38686]]
3. In leachate from surface impoundments (including leachate
release quantities and estimates of the relationship between
constituent concentrations in surface impoundment wastewater and
constituent concentration in leaks)
4. Estimates of the relationship between the concentration in
surface impoundments and the subsequent releases to air at affected
facilities (including concentrations of toxic constituents in ambient
air around affected facilities)
5. Sludge constituent concentrations
ii. Fate and Transport
1. Estimation of future fate and transport
a. What models should be used to estimate fate and transport? What
are the limitations of applying each model?
b. Pathways of concern
c. Handling complex environments; in subsurface, extreme
meteorological events
2. Describe key elements of fate and transport parameter selection
a. Leachate flow volumes
b. An assessment of surrounding hydrogeologic conditions
c. Results from site specific fate and transport analyses that
consider a site's hydrogeologic conditions
d. Distance from the surface impoundment or landfill to the nearest
well and the numbers of persons using those wells
e. The exact location of the affected surface impoundment or
facility (e.g., county, city, latitude and longitude)
C. Exposure:
i. Describe key elements of parameter selection
a. Distance to potential receptor populations
b. Size of potential receptor populations
ii. Describe the extent to which modeling should be used to
estimate risks, including which models should be used to determine
risk, and whether the exposure model should be linked with the selected
fate and transport model.
iii. Describe the extent to which Monte Carlo analysis should be
used to estimate risks
iv. Describe the extent to which the study should focus upon highly
exposed sub-populations versus individuals
v. Describe whether the study should estimate High-End and/or
Central Tendency risks
D. Data QA/QC and Peer Review:
i. Develop a QA Project Plan:
1. data quality objectives;
2. project objectives;
3. sample collection;
4. analysis and testing;
5. quality control;
6. project documentation;
7. organization performing field or laboratory operations
(performance evaluation; internal assessment by QA function; external
assessment; on-site evaluation (field activities, laboratory
activities); QA reports).
ii. Describe how to establish a peer review process, including
composition of the peer review panel.
Terms of Reference/ Evaluation Criteria
To stimulate thinking on this topic and establish criteria for
evaluating methodologies, the Agency has established terms of reference
for the risk assessment. Input Data Requirements--Data collected to
support the risk assessment must be quality controlled, must be
representative of the target universe and must be sufficiently detailed
to support statistical modeling of uncertainty in risk outputs. Release
Estimates--The risk assessment should consider all plausible forms of
release from surface impoundments. Releases to be considered should
include, but not be limited to: releases to groundwater and air from
the unit, overland releases, and releases associated with the dredging,
treatment, and disposal of sludges.
Fate and Transport Modeling--Fate and transport modeling should, to
the extent possible, reflect the state of the art in groundwater and
air dispersion modeling. At a minimum, the fate and transport modeling
should incorporate speciation chemistry to non-toxic forms of chemical
constituents where relevant, and, to facilitate review of the results,
rely on non-proprietary models.
Exposure Assessment--Exposure assessment should consider both
direct and indirect pathways. Constituent-specific estimates of
exposure should reflect cumulative exposure across all relevant
pathways. Pathways should be omitted only after careful consideration
of whether they contribute significantly to total exposure.
Cancer and Non-Cancer Health Risk Assessment--The cancer and non-
cancer health risk assessment methodology should reflect new Agency
guidelines for conducting these types of studies.
Peer Review--The analysis must include provisions for peer review
of proposed methodologies; intermediate results for input data, fate
and transport, exposure assessment, and risk characterization; and,
overall results. Elements of separate methodologies, including the
Agency's own methodology may be combined to form an overall approach to
assess risk. In this case, the overall approach would be subject to
peer review.
III. Assessment of Existing State/ Federal/Tribal Programs:
A. Establish a methodology to conduct a systematic review of
current and future planned regulations that might influence the
management of decharacterized wastewaters at affected facilities.
Include in the methodology a description of information collection
activities and any limitations.
Major Milestones and Preliminary Completion Date
----------------------------------------------------------------------------------------------------------------
Milestone Completion date
----------------------------------------------------------------------------------------------------------------
1. Meetings with Initiated in April 1996; On-going.
--Industry; and,
--Environmental Groups.
2. Publish Federal Register Notice Soliciting July 1996.
Proposed Methodologies from Commenters, with 60-day
comment period.
3. EPA develops proposed methodology to conduct June-August 1996.
study.
4. Receive proposed methodologies.................. August 1996.
5. Convene EPA workgroup from relevant offices to October 1996.
evaluate proposed methodologies and select one
methodology for peer review.
6. Develop peer review panel for the selected December 1996-February 1997.
methodology.
7. Finalize work plan and methodology.............. April 1997-May 1997.
8. Develop and implement survey and data April 1997-April 1999.
collection, including: EPA-conducted sampling;
pretesting; OMB approval of ICR; full
implementation of survey for several hundred
facilities; data compilation; and quality control
checks.
9. Assess coverage of existing regulations......... September 1997-September 1998.
[[Page 38687]]
10. Reassess risks of the wastewaters; interim April 1997-December 1999.
Report to Congress on risk results.
11. Combine risk results with regulatory review January 2000-July 2000.
results, develop report recommendations, write
draft report.
12. Conduct review and finalize report............. August 2000-March 2001.
----------------------------------------------------------------------------------------------------------------
Dated: July 18, 1996.
Elliott P. Laws,
Assistant Administrator, Office of Solid Waste and Emergency Response.
[FR Doc. 96-18836 Filed 7-24-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-18834 Correction of Implementation Plans; American Samoa, Arizona, California, Hawaii, and Nevada State Implementation Plans
[Federal Register Volume 61, Number 144 (Thursday, July 25, 1996)]
[Proposed Rules]
[Pages 38664-38682]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18834]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[AS-AZ-CA-HW-NV-000-0001; FRL-5541-8]
Correction of Implementation Plans; American Samoa, Arizona,
California, Hawaii, and Nevada State Implementation Plans
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing to promulgate corrections to the American
Samoa State Implementation Plan (SIP), the Arizona SIP, the California
SIP, the Hawaii SIP, and the Nevada SIP. These corrections concern the
deletion from the SIPs of the rules summarized in Table 1. These rules
include a variety of administrative provisions concerning variances,
hearing board procedures, and fees. EPA has determined that the rules
to be deleted from the above-referenced SIPs were erroneously
incorporated into the SIPs by the EPA, and in addition, the variance
provisions currently in the SIPs were rendered without legal effect by
amendments to the Clean Air Act enacted by Congress in 1977. In
addition, the continued presence of these provisions in the SIPs is
potentially confusing, and thus, harmful to the regulated community,
the states, and EPA. The intended effect of proposing these corrections
to the SIPs is to delete the above referenced rules and make the SIPs
consistent with the requirements of the Clean Air Act, as amended in
1990 (CAA or ``the Act''), regarding EPA action on SIP submittals and
SIPs for national primary and secondary ambient air quality standards.
DATES: Comments must be received on or before August 26, 1996.
ADDRESSES: Comments may be mailed to: Daniel A. Meer, Rulemaking
Section (A-5-3), Air and Toxics Division, U.S. Environmental Protection
Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901.
Copies of the rules being proposed for deletion are available for
public inspection at EPA's Region IX office during normal business
hours. Copies of the rules are also available for inspection at the
locations listed in Supplementary Information under ``Public
inspection''.
FOR FURTHER INFORMATION CONTACT: Julie A. Rose, Rulemaking Section (A-
5-3), Air and Toxics Division, U.S. Environmental Protection Agency,
Region IX, 75 Hawthorne Street, San Francisco, CA 94105 Telephone:
(415) 744-1184.
SUPPLEMENTARY INFORMATION:
Public Inspection
Arizona Department of Environmental Quality, P.O. Box 600, Phoenix, CA
85001-0600.
Coconino County Air Pollution Control District, 1515 East Cedar Avenue,
Flagstaff, AZ 86004.
Maricopa County, Environmental Services Department, 2406 S. 24th
Street, Suite E-214, Phoenix, AZ 85034.
Pima County Department of Environmental Quality, 130 West Congress
Street, 3rd Floor, Tucson, AZ 85701-1317.
Pinal County Air Quality Control District, P.O. Box 987, Florence, AZ
85232.
California Air Resources Board, Stationary Source Division, Rule,
Evaluation Section, 2020 ``L'' Street, Sacramento, CA 95814.
Amador County Air Pollution Control District, 500 Argonaut Lane,
Jackson, CA 95642.
Bay Area Air Quality Management District, 939 Ellis Street, San
Francisco, CA 94109.
Butte County Air Quality Management District, 2525 Dominic Drive,
Chico, CA 95928.
Calaveras County Air Pollution Control District, 891 Mountain Ranch
Road, San Andreas, CA 95249-9709.
Colusa County Air Pollution Control District, 100 Sunrise Blvd. Suite
F, Colusa, CA 95932.
Glenn County Air Pollution Control District, P.O. Box 351, Willows, CA
95988.
Great Basin Unified Air Pollution Control District, 157 Short Street,
Suite 6, Bishop, CA 93514.
Imperial County Air Pollution Control District, 150 South Ninth Street,
El Centro, CA 92243-2801.
Kern County (Southeast Desert) Air Pollution Control District, 2700 M.
Street, Suite 290, Bakersfield, CA 93301,
Lake County Air Quality Management District, 883 Lakeport Blvd.,
Lakeport, CA 95453.
Lassen County Air Pollution Control District, 175 Russell Avenue,
Susanville, CA 96130.
Mariposa County Air Pollution Control District, P.O. Box 2039,
Mariposa, CA 95338.
Mendocino County Air Quality Management District, 306 E. Gobbi Street,
Ukiah, CA 95482.
Modoc County Air Pollution Control District, 202 W. Fourth Street,
Alturas, CA 96101.
Mojave Desert Air Quality Management District, 15428 Civic Drive, Suite
200, Victorville, CA 92392.
Monterey Bay Unified Air Pollution Control District, 24580 Silver Cloud
Ct., Monterey, CA 93940.
Northern Sierra Air Quality Management District, P.O. Box 2509, Grass
Valley, CA 95945.
North Coast Unified Air Quality Management District, 2389 Myrtle
Avenue, Eureka, CA 95501.
Northern Sonoma County Air Pollution Control District, 109 North
Street, Healdsburg, CA 95448.
Placer County Air Pollution Control District, 11464 B Avenue, Auburn,
CA 95603.
Sacramento Metropolitan Air Quality Management District, 8411 Jackson
Road, Sacramento, CA 95826.
San Diego County Air Pollution Control District, 9150 Chesapeake Drive,
San Diego, CA 92123-1096.
San Joaquin Valley Unified Air Pollution Control District, (Formerly:
Fresno County APCD, Kern County APCD, Kings County, APCD, Madera County
APCD, Merced County APCD, San Joaquin County, APCD, Stanislaus County
APCD, and Tulare County APCD), 1999 Tuolumne Street, Suite 200, Fresno,
CA 93721.
San Luis Obispo Air Pollution Control District, 2156 Sierra Way, Suite
B, San Luis Obispo, CA 93401.
[[Page 38665]]
Santa Barbara County Air Pollution Control District, 26 Castilian
Drive, B-23, Goleta, CA 93117.
Shasta County Air Quality Management District, 1640 West Street,
Redding, CA 96001.
South Coast Air Quality Management District, 21865 E. Copley Drive,
Diamond Bar, CA 91765.
Sutter County Air Pollution Control District, (Now Feather River Air
Quality Management District), 938 14th Street, Marysville, CA 95901.
Tehama County Air Pollution Control District, 1750 Walnut Street, Red
Bluff, CA 96080.
Tuolumne County Air Pollution Control District, 2 South Green Street,
Sonora, CA 95370.
Ventura County Air Pollution Control District, 669 County Square Drive,
Ventura, CA 93003.
Yolo-Solano Air Quality Management District, 1947 Galileo Court, Suite
103, Davis, CA 95616.
Hawaii Department of Health, Environmental Management Division, P.O.
Box 3378, Honolulu, HI 96801.
American Samoa Environmental Quality Commission, Governor's Office,
Pago Pago, American Samoa 96799.
Nevada Division of Environmental Protection, 333 West Nye Lane, Carson
City, NV 89710.
Clark County Air Pollution Control Division, P.O. Box 4426, Las Vegas,
NV 89127.
Applicability
This document addresses EPA's proposed action for the rules
summarized in the table following this document.
Background
The Clean Air Act was first enacted in 1970. At this time, a large
number of state and district rules and regulations were submitted to
the EPA for incorporation into the SIPs in order to fulfill the new
federal requirements. In many cases states and districts submitted
their entire regulatory air pollution programs, including many elements
not required by the Act. Due to resource and budget constraints, EPA's
review of these submittals focused primarily on the substantive
technical, legal, and enforcement elements of the submittals. At the
time, EPA did not perform a detailed review of the numerous
administrative provisions, which in many cases included procedures for
granting variances, hearings, fee provisions.
Variance Provisions
A new section 110(i) was added to the Act when it was amended in
1977. Section 110(i) prohibits the modification of any requirement of
an applicable SIP by any means other than a SIP revision. Section
110(i) contains the following exceptions from this requirement: primary
nonferrous smelter orders under section 119, emergency suspensions
issued by the President under 110(f) or the Governor under 110(g),
exemptions issued by the President for federal facilities under section
118, and compliance orders under section 113(d).
Variance provisions that were mistakenly incorporated into the
applicable SIPs provide for modification of the requirements of these
applicable SIPs. Because these variance provisions do not fall under
any of the exceptions set forth in section 110(i), they are prohibited
by, and are not legally enforceable pursuant to, section 110(i) of the
Act.
Because variance provisions are prohibited by section 110(i) of the
Act, their incorporation into the SIP is not only inconsistent with the
Act but confusing to the regulated industry. A state or district issued
variance has no effect on the federal enforceability of a provision
unless the variance is submitted to EPA and approved into the SIP as a
source-specific SIP revision. However, the variance provisions do not
state this fact and their inclusion in the SIP is misleading.
In addition to being prohibited by section 110(i) of the Act and
misleading to the regulated community, the variance provisions have no
relationship to the requirements of section 110 and Part D of the Act.
For these reasons, EPA is proposing to delete the variance provisions
listed in Table 1 from the SIPs for American Samoa, Arizona,
California, Hawaii, and Nevada.
Hearing Board Procedures and Miscellaneous Administrative Provisions
In addition to the specific variance provisions discussed above,
many of the American Samoa, Arizona, California, Hawaii, and Nevada
SIPs contain extensive provisions governing hearing board procedures
and other administrative requirements. These provisions concern issues
not required by the Act, such as the frequency of meetings, the fees,
and salaries paid to board members; the type of forms that must be
filed to petition for a hearing; and requirements for issuing abatement
orders. These provisions were mistakenly incorporated into the
applicable SIPs and are not requirements under section 110 and Part D
of the Act. For this reason, EPA is proposing to delete the hearing
board procedures and other administrative provisions listed in Table 1
from the applicable SIPs for American Samoa, Arizona, California,
Hawaii, and Nevada.
Fee Provisions
Like the hearing board procedures discussed above, fee provisions
which were mistakenly incorporated into the applicable SIPs are not
requirements under section 110 and Part D of the Act, and the purposes
of these rules have no relationship to these CAA requirements. Only fee
provisions that are considered to be economic incentive rules under
sections 110(a)(2)(A), 172(c)(6), or 182(g)(4) would appropriately be
incorporated into the SIP. For this reason, EPA is proposing to remove
the fee provisions listed in Table 1 from the applicable SIPs for
American Samoa, Arizona, California, Hawaii, and Nevada.
Section 110(k)(6)
Section 110(k)(6) of the Act provides:
Whenever the Administrator determines that the Administrator's
action approving, disapproving, or promulgating any plan revision
(or part thereof), area designation, redesignation, classification,
or reclassification was in error, the Administrator may in the same
manner as the approval, disapproval, or promulgation revise such
action as appropriate without requiring any further submission from
the State. Such determination and the basis thereof shall be
provided to the State and public.
EPA interprets this provision to authorize the Agency to revise an
action when EPA finds that (1) EPA clearly erred in failing to
consider, or inappropriately considered, information made available to
EPA at the time of the action or the information made available at the
time of promulgation is subsequently demonstrated to have been clearly
inadequate; and (2) other information persuasively supports a change in
the action. See, e.g., 57 FR 56762, 56763 (November 30, 1992)
(correcting designations, boundaries, and classifications of ozone,
carbon monoxide, particulate matter and lead areas).
EPA Proposed Action
EPA has reviewed the rules previously incorporated into the
American Samoa, Arizona, California, Hawaii, and Nevada SIPs and has
determined that the rules summarized in Table 1 were approved in error.
These rules include administrative provisions regarding variances,
hearing board procedures, and fee provisions.
[[Page 38666]]
Therefore, EPA is proposing to delete the rules summarized in Table 1
from these SIPs under section 110(k)(6) of the Act, which gives EPA the
authority to revise the existing SIP by removing the referenced rules
from the above-referenced SIPs without additional State submission.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any state implementation plan. Each request for revision to
the state implementation plan shall be considered separately in light
of specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
Regulatory Process
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises and
government entities with jurisdiction over population of less than
50,000.
SIP approvals under sections 110 and 301(a) and subchapter I, Part
D of the CAA do not create any new requirements, but simply approve
requirements that the State is already imposing. Therefore, because the
Federal SIP-approval does not impose any new requirements, I certify
that it does not have a significant impact on any small entities
affected. Moreover, due to the nature of the Federal-state relationship
under the CAA, preparation of a regulatory flexibility analysis would
constitute Federal inquiry into the economic reasonableness of state
action. The CAA forbids EPA to base its actions concerning SIPs on such
grounds. Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.
Ct. 1976); 42 U.S.C. 7410 (a)(2).
Unfunded Mandates
Under Sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,
1995, EPA must undertake various actions in association with proposed
or final rules that include a Federal mandate that may result in
estimated costs of $100 million or more to the private sector or to
State, local, or tribal governments in the aggregate.
The rules being proposed for removal by this action will not result
in the imposition of new requirements.
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for
Air and Radiation. The Office of Management and Budget (OMB) has
exempted this regulatory action from Executive Order 12866 review.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Intergovernmental relations, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Volatile
organic compounds.
Authority: 42 U.S.C. 7401-7671q.
Dated: July 11, 1996.
Felicia Marcus,
Regional Administrator.
Table 1.--State of Arizona
----------------------------------------------------------------------------------------------------------------
Approval
Regulation Rule No. Rule name Submit date date
----------------------------------------------------------------------------------------------------------------
Arizona Dept. of Environmental Quality
----------------------------------------------------------------------------------------------------------------
Revised Statutes......................... 36-781 Violations; Order of 07/13/81 06/18/82
Abatement; Time for
Compliance.
36-782 Hearings on Orders of 07/13/81 06/18/82
Abatement.
36-784 Conditional Permit; 07/13/81 06/18/82
Standards.
36-784.01 Petition for Conditional 07/13/81 06/18/82
Permit; Publication;
Public Hearing.
36-784.02 Decisions on Petitions for 07/13/81 06/18/82
Conditional Permit: Terms.
36-784.03 Term of Conditional Permit. 07/13/81 06/18/82
36-784.04 Suspension and Revocation 07/13/81 06/18/82
of Conditional Permit.
36-785 Decisions of Hearing Board; 07/13/81 06/18/82
Subpoenas Effective Date.
36-785.01 Judicial Review; Grounds; 07/13/81 06/18/82
Procedures.
36-786 Notice of Hearing; 07/13/81 06/18/82
Publication; Service.
36-787 Injunctive Relief.......... 07/13/81 06/18/82
36-788 Precedence of Actions...... 07/13/81 06/18/82
36-1709 Violations; Order of 08/05/81 06/18/82
Abatement; Time for
Compliance.
36-1710 Hearings on Orders of 08/05/81 06/18/82
Abatement.
36-1711 Temporary Conditional 08/05/81 06/18/82
Permits.
36-1712 Conditional Permit; 08/05/81 06/18/82
Standards.
36-1712.01 Petition for Conditional 08/05/81 06/18/82
Permit; Public Hearing.
36-1712.02 Decisions on Petitions for 08/05/81 06/18/82
Conditional Permit; Terms.
36-1712.03 Term of Conditional Permit. 08/05/81 06/18/82
36-1712.04 Suspension and Revocation 08/05/81 06/18/82
of Conditional Permit.
36-1713 Decisions of Hearing Board; 08/05/81 06/18/82
Subpoenas; Effective Date.
36-1713.01 Judicial Review; Grounds; 08/05/81 06/18/82
Procedures.
36-1714 Notice of Hearing; 08/05/81 06/18/82
Publication; Service.
36-1715 Injunctive Relief.......... 08/05/81 06/18/82
36-1716 Precedence of Actions...... 08/05/81 06/18/82
----------------------------------------------------------------------------------------------------------------
Coconino County APCD
----------------------------------------------------------------------------------------------------------------
12-7 Violations.......................... 12-7-2. Order of Abatement......... 07/01/75 11/15/78
12-07-3. Hearings on Orders of 07/01/75 11/15/78
Abatement.
12-07-5. Notice of Hearing, 07/01/75 11/15/78
Publication, Service.
[[Page 38667]]
12-07-6. Injunctive Relief.......... 07/01/75 11/15/78
----------------------------------------------------------------------------------------------------------------
Maricopa County APCD
----------------------------------------------------------------------------------------------------------------
VI Violations............................ 60 Order of Abatement; 05/30/72 09/22/72
Hearings.
61 Conditional Permit; 05/30/72 09/22/72
Petition for Conditional
Permit.
62 Appeals to the Hearing 05/30/72 09/22/72
Board.
63 Decisions on Petitions for 05/30/72 09/22/72
Conditional Permit; Terms.
64 Decisions of Hearing Board; 05/30/72 09/22/72
Subpoenas; Effective Date.
65 Notice of Hearing; 05/30/72 09/22/72
Publication; Service.
66 Injunctive Relief.......... 05/30/72 09/22/72
67 Misdemeanor; Penalty....... 05/30/72 09/22/72
Ch. I: General Provisions:
14--Hearing Board.................... 141 Establishment.............. 10/09/79 04/16/82
142 Composition................ 06/01/81 04/16/82
143 Terms; Nominations......... 10/09/79 04/16/82
144 Function................... 10/09/79 04/16/82
145 Officers; Procedures....... 10/09/79 04/16/82
146 Meetings; Hearings......... 10/09/79 04/16/82
147 Compensation; Absences..... 10/09/79 04/16/82
Ch. VII: Violations & Judicial
Procedures:
70: Violation........................ 702 Order of Abatement......... 10/09/79 04/16/82
71--Condition........................ 711 Legal Authority............ 10/09/79 04/16/82
(Variances).......................... 712 General Procedures......... 10/09/79 04/16/82
713 Judicial Review............ 10/09/79 04/16/82
714 Time Limitations Regarding 10/09/79 04/16/82
Hearing.
----------------------------------------------------------------------------------------------------------------
Pinal-Gila County APCD
----------------------------------------------------------------------------------------------------------------
7-1-4-Order.............................. 7-1-4.1 Violations: Orders of 07/01/75 11/15/78
Abatement, Time for
Compliance.
Abatement................................ 7-1-4.2 Hearings on Order of 07/01/75 11/15/78
Abatement.
7-1-5-Rev................................ 7-1-5.1 Classification and 07/01/75 11/15/78
Reporting: Production of
Records.
Procedures............................... 7-1-5.2 Special Inspection Warrant. 07/01/75 11/15/78
7-1-5.3 Decisions of Hearing 07/01/75 11/15/78
Boards: Subpoenas
Effective Date.
7-1-5.4 Judicial Review: Grounds, 07/01/75 11/15/78
Procedures.
7-1-5.5 Notice of Hearing, 07/01/75 11/15/78
Publication, Service.
7-1-5.6 Injunctive Relief.......... 07/01/75 11/15/78
----------------------------------------------------------------------------------------------------------------
State of California
----------------------------------------------------------------------------------------------------------------
Approval
Regulation Rule No. Rule name Submit date date
----------------------------------------------------------------------------------------------------------------
Amador County APCD
----------------------------------------------------------------------------------------------------------------
VI--Fees................................. 605 Hearing Board Fees......... 10/15/79 05/18/81
VII--Procedure Before the Hearing Board.. 700 Applicable Articles of the 10/15/79 05/18/81
Health.
701 General.................... 10/15/79 05/18/81
702 Filing Petitions........... 10/15/79 05/18/81
703 Contents of Petitions...... 10/15/79 05/18/81
704 Petitions for Variances.... 10/15/79 05/18/81
705 Appeal for Denial.......... 04/21/76 06/14/78
706 Failure to Comply with 04/21/76 01/24/78
Rules.
707 Answers.................... 04/21/76 01/24/78
708 Dismissal of Petition...... 04/21/76 01/24/68
709 Place of Hearing........... 04/21/76 01/24/68
710 Notice of Hearing.......... 10/15/79 05/18/81
711 Evidence................... 10/15/79 05/18/81
712 Preliminary Matters........ 04/21/76 01/24/68
713 Official Notice............ 04/21/76 01/24/68
714 Continuances............... 04/21/76 01/24/68
715 Decision................... 04/21/76 01/24/68
716 Effective Date of Decision. 04/21/76 01/24/68
----------------------------------------------------------------------------------------------------------------
[[Page 38668]]
Bay Area AQMD
----------------------------------------------------------------------------------------------------------------
III--Fees................................ 301 Hearing Board Fees......... 08/30/83 05/03/84
----------------------------------------------------------------------------------------------------------------
Butte County APCD
----------------------------------------------------------------------------------------------------------------
VII--Procedure Before the Hearing Board.. 601 General.................... 02/10/86 02/03/87
602 Filing Petitions........... 02/10/86 02/03/87
603 Contents of Petitions...... 02/10/86 02/03/87
604 Petitions for Variances.... 02/10/86 02/03/87
605 Petition for Revocation of 02/10/86 02/03/87
Permit.
606 Petition for Reinstatement 02/10/86 02/03/87
of Suspended Permit.
607 Noncompliance with District 02/10/86 02/03/87
Rules.
608 Answers.................... 02/10/86 02/03/87
609 Dismissal of Petition...... 02/10/86 02/03/87
610 Time and Place of Hearing.. 02/10/86 02/03/87
611 Notice and Hearing......... 02/10/86 02/03/87
612 Interested Members of 02/10/86 02/03/87
Public; Special Notice.
613 Evidence................... 02/10/86 02/03/87
614 Preliminary Matters........ 02/10/86 02/03/87
615 Official Notice............ 02/10/86 02/03/87
616 Continuances............... 02/10/86 02/03/87
617 Decision................... 02/10/86 02/03/87
618 Effective Date of Decision. 02/10/86 02/03/87
620 Appeal from Denial......... 02/10/86 02/03/87
621 Appeal and Petition for 02/10/86 02/03/87
Variance after Permit
Denial.
VIII--Variances.......................... 801 Request for Variance....... 02/10/86 02/03/87
802 Conditions for Granting 02/10/86 02/03/87
Variances.
----------------------------------------------------------------------------------------------------------------
Calaveras County APCD
----------------------------------------------------------------------------------------------------------------
VI--Fees................................. 305 Hearing Board Fees......... 06/30/72 09/22/72
VII--Procedure Before the Hearing Board.. 700 Applicable Articles of the 07/22/75 08/22/77
Health & Safety Code.
701 General.................... 07/22/75 08/22/77
702 Filing Petitions........... 07/22/75 08/22/77
703 Contents of Petitions...... 07/22/75 08/22/77
704 Petitions for Variances.... 07/22/75 08/22/77
705 Appeal for Denial.......... 07/22/75 08/22/77
706 Failure to Comply with 07/22/75 08/22/77
Rules.
707 Answers.................... 07/22/75 08/22/77
708 Dismissal of Petition...... 07/22/75 08/22/77
709 Place of Hearing........... 10/13/77 11/07/78
710 Notice of Hearing.......... 07/22/75 08/22/77
711 Evidence................... 07/22/75 08/22/77
712 Preliminary Matters........ 07/22/75 08/22/77
713 Official Notice............ 07/22/75 08/22/77
714 Continuances............... 07/22/75 08/22/77
715 Decision................... 10/13/77 11/07/78
716 Effective Date of Decision. 07/22/75 08/22/77
----------------------------------------------------------------------------------------------------------------
Colusa County APCD
----------------------------------------------------------------------------------------------------------------
III--Fees................................ 3.1 Hearing Board Fees......... 06/30/72 09/22/72
V--Procedure Before the Hearing Board.... 5.1 Applicable Articles of the 06/30/72 09/22/72
Health & Safety Code.
5.2 General.................... 06/30/72 09/22/72
5.3 Filing Petitions........... 06/30/72 09/22/72
5.4 Contents of Petitions...... 06/30/72 09/22/72
5.5 Petitions for Variances.... 06/30/72 09/22/72
5.6 Failure to Comply with 06/30/72 09/22/72
Rules.
5.7 Answers.................... 06/30/72 09/22/72
5.8 Dismissal of Petition...... 06/30/72 09/22/72
5.9 Place of Hearing........... 06/30/72 09/22/72
5.10 Notice of Hearing.......... 06/30/72 09/22/72
5.11 Evidence................... 06/30/72 09/22/72
5.12 Record of Proceedings...... 06/30/72 09/22/72
5.13 Preliminary Matters........ 06/30/72 09/22/72
[[Page 38669]]
5.14 Official Notice............ 06/30/72 09/22/72
5.15 Continuances............... 06/30/72 09/22/72
5.16 Decision................... 06/30/72 09/22/72
5.17 Effective Date of Decision. 06/30/72 09/22/72
----------------------------------------------------------------------------------------------------------------
Fresno County APCD
----------------------------------------------------------------------------------------------------------------
III--Fees................................ 305 Hearing Board Fees......... 10/15/79 12/09/81
V--Procedure Before the Hearing Board.... 501 Applicable Articles of the 06/30/72 09/22/72
Health.
502 General.................... 06/30/72 09/22/72
503 Filing Petitions........... 01/10/75 08/22/77
504 Contents of Petitions...... 06/30/72 09/22/72
505 Petitions for Variances.... 10/13/74 08/22/77
506 Appeal for Denial.......... 06/30/72 09/22/72
507 Failure to Comply with 01/10/75 08/22/77
Rules.
508 Answers.................... 06/30/72 09/22/72
509 Dismissal of Petition...... 06/30/72 09/22/72
510 Place of Hearing........... 06/30/72 09/22/72
511 Notice of Hearing.......... 06/30/72 09/22/72
512 Evidence................... 06/30/72 09/22/72
513 Preliminary Matters........ 01/10/75 08/22/77
514 Official Notice............ 06/30/72 09/22/72
515 Continuances............... 01/10/75 08/22/77
516 Decision................... 06/30/72 09/22/72
517 Effective Date of Decision. 06/30/72 09/22/72
----------------------------------------------------------------------------------------------------------------
Glenn County APCD
----------------------------------------------------------------------------------------------------------------
V--Hearing Board......................... 110 Appl. Articles of the 11/03/80 01/26/82
Health & Safety Code.
111 Filing Petitions........... 01/10/75 05/11/77
112 Contents of Petitions...... 11/03/80 01/26/82
113 Petitions for Variances.... 01/10/75 05/11/77
114 Appeal for Denial.......... 01/10/75 05/11/77
115 Failure to Comply with 01/10/75 05/11/77
Rules.
116 Dismissal of Petition...... 01/10/75 05/11/77
117 Place of Hearing........... 01/10/75 05/11/77
118 Notice of Hearing.......... 01/10/75 05/11/77
119 Evidence................... 01/10/75 05/11/77
120 Record of Proceedings...... 01/10/75 05/11/77
121 Preliminary Matters........ 01/10/75 05/11/77
122 Official Notice............ 01/10/75 05/11/77
123 Continuances............... 01/10/75 05/11/77
124 Decision................... 01/10/75 05/11/77
125 Effective Date of Decision. 01/10/75 05/11/77
VI--Fees................................. 150 Hearing Board Fees......... 01/10/75 05/11/77
----------------------------------------------------------------------------------------------------------------
Great Basin APCD
----------------------------------------------------------------------------------------------------------------
600 General.................... 04/21/76 06/06/77
601 Filing Petitions........... 04/21/76 06/06/77
602 Contents of Petitions...... 04/21/76 06/06/77
603 Petitions for Variances.... 04/21/76 06/06/77
604 Appeal from Denial......... 04/21/76 06/06/77
605 Failure to Comply with 04/21/76 06/06/77
Rules.
606 Answers.................... 04/21/76 06/06/77
607 Withdrawal of Petition..... 04/21/76 06/06/77
608 Place of Hearing........... 04/21/76 06/06/77
609 Notice of Hearing.......... 04/21/76 06/06/77
610 Evidence................... 04/21/76 06/06/77
611 Record of Proceedings...... 04/21/76 06/06/77
612 Preliminary Matters........ 04/21/76 06/06/77
613 Official Notice............ 04/21/76 06/06/77
614 Continuances............... 04/21/76 06/06/77
615 Decision................... 04/21/76 06/06/77
617 Emergency Variances........ 12/17/79 01/27/81
VIII--Orders Abatement................... 800 General.................... 04/21/76 06/06/77
801 Order for Abatement........ 04/21/76 06/06/77
802 Filing Petitions........... 04/21/76 06/06/77
[[Page 38670]]
803 Contents of Petitions...... 04/21/76 06/06/77
804 Scope of Order............. 04/21/76 06/06/77
805 Findings................... 04/21/76 06/06/77
806 Pleading................... 04/21/76 06/06/77
807 Evidence................... 04/21/76 06/06/77
808 Failure to Comply with 04/21/76 06/06/77
Rules.
809 Withdrawal of Petition..... 04/21/76 06/06/77
810 Place of Hearing........... 04/21/76 06/06/77
811 Notice of Hearing.......... 04/21/76 06/06/77
812 Preliminary Matters........ 04/21/76 06/06/77
813 Official Notice............ 04/21/76 06/06/77
814 Continuance................ 04/21/76 06/06/77
815 Order and Decision......... 04/21/76 06/06/77
816 Effective Date of Decision. 04/21/76 06/06/77
817 Record of Proceedings...... 04/21/76 06/06/77
----------------------------------------------------------------------------------------------------------------
Imperial County APCD
----------------------------------------------------------------------------------------------------------------
III--Fees................................ 305 Hearing Board Fees......... 10/23/81 05/27/82
V--Procedure Before the Hearing Board.... 501 General.................... 11/04/77 08/11/78
502 Filing Petitions........... 11/04/77 08/11/78
503 Contents of Petitions...... 11/04/77 08/11/78
504 Petitions for Variances.... 11/04/77 08/11/78
505 Supplemental Information... 11/04/77 08/11/78
506 Matters Initiated by 11/04/77 08/11/78
Control Officer or Hearing
Board.
507 Answers.................... 11/04/77 08/11/78
508 Withdrawal of Petition..... 11/04/77 08/11/78
509 Preliminary Matters........ 11/04/77 08/11/78
510 Time and Place of Meeting.. 11/04/77 08/11/78
511 Notice of Hearing.......... 11/04/77 08/11/78
512 Record of Proceedings...... 11/04/77 08/11/78
514 Evidence................... 11/04/77 08/11/78
515 Official Notice............ 11/04/77 08/11/78
516 Decisions.................. 11/04/77 08/11/78
517 Emergency Variance......... 12/24/79 01/27/81
----------------------------------------------------------------------------------------------------------------
Kern County APCD
----------------------------------------------------------------------------------------------------------------
I--General Provisions.................... 105 Order for Abatement........ 11/10/76 03/22/78
III--Fees................................ 305 Hearing Board Fees......... 07/30/81 07/06/82
V--Procedure Before the Hearing Board.... 501 Applicable Articles of the 11/10/76 03/22/78
Health.
502 General.................... 06/30/72 09/22/72
503 Filing Petitions........... 05/23/79 08/11/80
504 Contents of Petitions...... 11/10/76 03/22/78
505 Petitions for Variances.... 06/30/72 09/22/72
506 Appeal for Denial.......... 06/30/72 09/22/72
507 Failure to Comply with 06/30/72 09/22/72
Rules.
508 Answers.................... 06/30/72 09/22/72
509 Dismissal of Petition...... 06/30/72 09/22/72
510 Place of Hearing........... 06/30/72 09/22/72
511 Notice of Hearing.......... 11/10/76 03/22/78
512 Evidence................... 06/30/72 09/22/72
513 Preliminary Matters........ 06/30/72 09/22/72
514 Official Notice............ 06/30/72 09/22/72
515 Continuances............... 06/30/72 09/22/72
516 Decision................... 07/19/74 08/22/77
517 Effective Date of Decision. 06/30/72 09/22/72
I--General Provisions.................... 105 Order for Abatement........ 11/10/76 03/22/78
III--Fees................................ 305 Hearing Board Fees......... 07/30/81 07/06/82
V--Procedure Before the Hearing Board.... 501 Appl. Articles of the 11/10/76 03/22/78
Health & Safety Code.
502 General.................... 06/30/72 09/22/72
503 Filing Petitions........... 05/23/79 08/11/80
504 Contents of Petitions...... 11/10/76 03/22/78
505 Petitions for Variances.... 06/30/72 09/22/72
506 Appeal for Denial.......... 06/30/72 09/22/72
507 Failure to Comply with 06/30/72 09/22/72
Rules.
508 Answers.................... 06/30/72 09/22/72
[[Page 38671]]
509 Dismissal of Petition...... 06/30/72 09/22/72
510 Place of Hearing........... 06/30/72 09/22/72
511 Notice of Hearing.......... 11/10/76 03/22/78
512 Evidence................... 06/30/72 09/22/72
513 Preliminary Matters........ 06/30/72 09/22/72
514 Official Notice............ 06/30/72 09/22/72
515 Continuances............... 06/30/72 09/22/72
516 Decision................... 07/19/74 08/22/77
517 Effective Date of Decision. 06/30/72 09/22/72
----------------------------------------------------------------------------------------------------------------
Kings County APCD
----------------------------------------------------------------------------------------------------------------
I--General Provisions.................... 105 Order for Abatement........ 11/04/77 08/04/78
III--Fees................................ 302 Hearing Board Fees......... 10/15/79 10/09/81
V--Procedure Before the Hearing Board.... 501 Applicable Articles of the 11/04/77 08/04/78
Health.
502 General.................... 06/30/72 09/22/72
503 Filing Petitions........... 06/30/72 09/22/72
504 Contents of Petitions...... 06/30/72 09/22/72
505 Petitions for Variances.... 06/30/72 09/22/72
506 Appeal for Denial.......... 06/30/72 09/22/72
507 Failure to Comply with 06/30/72 09/22/72
Rules.
508 Answers.................... 06/30/72 09/22/72
509 Dismissal of Petition...... 06/30/72 09/22/72
510 Place of Hearing........... 07/25/73 08/22/77
511 Notice of Hearing.......... 06/30/72 09/22/72
512 Evidence................... 06/30/72 09/22/72
513 Preliminary Matters........ 06/30/72 09/22/72
514 Official Notice............ 06/30/72 09/22/72
515 Continuances............... 06/30/72 09/22/72
516 Decision................... 06/30/72 09/22/72
517 Effective Date of Decision. 06/30/72 09/22/72
519 Emergency Variance......... 10/15/79 06/18/82
----------------------------------------------------------------------------------------------------------------
Lake County APCD
----------------------------------------------------------------------------------------------------------------
Ch. I--General Provisions................ 300 Hearing Board.............. 02/10/77 08/04/78
Ch. VI, Chapter IX Hearing Board......... 301 Meeting Compensation....... 03/30/81 04/13/82
800 Orders of Abatement........ 02/10/77 08/04/78
1600 Public Hearing............. 02/10/77 08/04/78
1601 Notice..................... 02/10/77 08/04/78
1602 Petition Procedures........ 03/30/81 04/13/82
1610 Decisions.................. 02/10/77 08/04/78
1611 Effective Date............. 02/10/77 08/04/78
1612 Transcripts................ 02/10/77 08/04/78
1620 Fees....................... 02/10/77 08/04/78
Chapter X Variances: Article I Interim
Variances
1700 ........................... 02/10/77 08/04/78
1701 ........................... 02/10/77 08/04/78
Article II Variance...................... 1710 ........................... 02/10/77 08/04/78
1711 ........................... 02/10/77 08/04/78
1712 ........................... 02/10/77 08/04/78
1713 ........................... 02/10/77 08/04/78
1714 ........................... 02/10/77 08/04/78
Article III Increments of Progress.......
1720 ........................... 02/10/77 08/04/78
1721 ........................... 02/10/77 08/04/78
1722 ........................... 02/10/77 08/04/78
1723 ........................... 02/10/77 08/04/78
1724 ........................... 02/10/77 08/04/78
1725 ........................... 02/10/77 08/04/78
Article IV Procedure.....................
1730 ........................... 02/10/77 08/04/78
1731 ........................... 02/10/77 08/04/78
1732 ........................... 02/10/77 08/04/78
1733 ........................... 02/10/77 08/04/78
1734 ........................... 02/10/77 08/04/78
[[Page 38672]]
1735 ........................... 02/10/77 08/04/78
1736 ........................... 02/10/77 08/04/78
Tables I-IV Table VI..................... .............. Schedule of Fees for Permit 03/30/81 04/13/82
I--General Provisions.................... 1.5 Order for Abatement........ 06/30/72 09/22/72
III--Fees................................ 3.1 Hearing Board Fees......... 06/30/72 09/22/72
V--Procedure............................. 5.1 Appl. Articles of the 06/30/72 09/22/72
Health & Safety Code.
Before the Hearing Board................. 5.2 General.................... 06/30/72 09/22/72
5.3 Filing Petitions........... 06/30/72 09/22/72
5.4 Contents of Petitions...... 06/30/72 09/22/72
5.5 Petitions for Variances.... 06/30/72 09/22/72
5.6 Appeal for Denial.......... 06/30/72 09/22/72
5.7 Failure to Comply with 06/30/72 09/22/72
Rules.
5.8 Answers.................... 06/30/72 09/22/72
5.9 Dismissal of Petition...... 06/30/72 09/22/72
5.10 Place of Hearing........... 06/30/72 09/22/72
5.11 Notice of Hearing.......... 06/30/72 09/22/72
5.12 Record of Proceedings...... 06/30/72 09/22/72
5.13 Preliminary Matters........ 06/30/72 09/22/72
5.14 Official Notice............ 06/30/72 09/22/72
5.15 Continuances............... 06/30/72 09/22/72
5.16 Decision................... 06/30/72 09/22/72
5.17 Effective Date of Decision. 06/30/72 09/22/72
I--General Provisions.................... 106 Order for Abatement........ 02/07/89 04/16/91
III--Fees................................ 305 Hearing Board Fees......... 04/11/83 11/18/83
V--Procedure Before the Hearing Board.... 501 Applicable Articles of the 02/07/89 04/16/91
Health.
502 General.................... 04/11/83 11/18/83
503 Filing Petitions........... 04/11/83 11/18/83
504 Contents of Petitions...... 02/07/89 04/16/91
505 Petitions for Variances.... 02/07/89 04/16/91
506 Appeal for Denial.......... 02/07/89 04/16/91
507 Failure to Comply with 06/03/72 09/22/72
Rules.
508 Answers.................... 06/03/72 09/22/72
509 Dismissal of Petition...... 06/03/72 09/22/72
510 Place of Hearing........... 06/03/72 09/22/72
511 Notice of Hearing.......... 10/15/79 12/09/81
512 Evidence................... 06/30/72 09/22/72
513 Preliminary Matters........ 06/30/72 09/22/72
514 Official Notice............ 06/30/72 09/22/72
515 Continuances............... 06/30/72 09/22/72
516 Decision................... 06/30/72 09/22/72
517 Effective Date of Decision. 06/30/72 09/22/72
519 Emergency Variance......... 02/07/89 04/16/91
FR Doc. 96-18834 Correction of Implementation Plans; American Samoa, Arizona, California, Hawaii, and Nevada State Implementation Plans
----------------------------------------------------------------------------------------------------------------
Mariposa County APCD
----------------------------------------------------------------------------------------------------------------
VI--Procedure Before the Hearing Board... 600 Appl. Articles of the 06/06/77 08/16/78
Health & Safety Code.
601 General.................... 01/10/75 08/22/77
602 Filing Petitions........... 06/06/77 08/16/78
603 Contents of Petitions...... 06/06/77 08/16/78
604 Petitions for Variances.... 01/10/75 08/22/77
605 Appeal for Denial.......... 01/10/75 08/22/77
606 Failure to Comply with 01/10/75 08/22/77
Rules.
607 Answers.................... 01/10/75 08/22/77
608 Dismissal of Petition...... 01/10/75 08/22/77
609 Place of Hearing........... 01/10/75 08/22/77
610 Notice of Hearing.......... 06/06/77 08/16/78
611 Evidence................... 01/10/75 08/22/77
612 Preliminary Matters........ 01/10/75 08/22/77
613 Official Notice............ 01/10/75 08/22/77
614 Continuances............... 01/10/75 08/22/77
615 Decision................... 01/10/75 08/22/77
616 Effective Date of Decision. 01/10/75 08/22/77
618 Hearing Board Fees......... 01/10/77 08/22/77
----------------------------------------------------------------------------------------------------------------
Mendocino County APCD
----------------------------------------------------------------------------------------------------------------
III--Fees................................ 320 Hearing Board Fees......... 05/23/79 10/13/80
V--Enforcement........................... 510 Orders for Abatement....... 11/10/76 11/07/78
[[Page 38673]]
VI--Hearing and Variance Procedures...... 600 Authorization.............. 04/19/84 12/05/84
610 Petition Procedure......... 04/19/84 12/05/84
615 Emergency Variances........ 05/07/79 11/10/82
616 Interim Variance........... 08/06/82 11/10/82
618 Modification of Increments 08/06/82 11/10/82
of Progress Sch..
620 Hearing Board.............. 11/10/76 11/07/78
640 Record of Proceedings...... 11/10/76 11/07/78
650 Appeal of Decision......... 11/10/76 11/07/78
Part XI Hearing Board...... 02/21/72 05/31/72
Part XII Variances......... 02/21/72 05/31/72
Part XIII Meetings......... 02/21/72 05/31/72
I--General Provisions.................... 105 Order for Abatement........ 08/02/76 06/14/78
III--Fees................................ 305 Hearing Board Fees......... 07/19/83 02/01/84
V--Procedure Before the Hearing Board.... 501 Appl. Articles of the 08/02/76 06/14/78
Health & Safety Code.
502 General.................... 06/30/72 09/22/72
503 Filing Petitions........... 06/30/72 09/22/72
504 Contents of Petitions...... 08/02/76 06/14/78
506 Appeal for Denial.......... 06/30/72 09/22/72
507 Failure to Comply with 06/30/72 09/22/72
Rules.
508 Answers.................... 06/30/72 09/22/72
509 Dismissal of Petition...... 06/30/72 09/22/72
510 Place of Hearing........... 08/02/76 06/14/78
512 Evidence................... 06/30/72 09/22/72
513 Preliminary Matters........ 06/30/72 09/22/72
514 Official Notice............ 06/30/72 09/22/72
515 Continuances............... 06/30/72 09/22/72
516 Decision................... 06/30/72 09/22/72
517 Effective Date of Decision. 06/30/72 09/22/72
519 Emergency Variance......... 07/19/83 02/01/84
----------------------------------------------------------------------------------------------------------------
Modoc County APCD
----------------------------------------------------------------------------------------------------------------
I--General Provisions.................... 1.5 Order for Abatement........ 06/30/72 09/22/72
IV--Procedure Before the Hearing Board... 4.1 Appl. Articles of the 06/30/72 09/22/72
Health & Safety Code.
4.2 General.................... 06/30/72 09/22/72
4.3 Filing Petitions........... 06/30/72 09/22/72
4.4 Contents of Petitions...... 06/30/72 09/22/72
4.5 Petitions for Variances.... 06/30/72 09/22/72
4.6 Failure to Comply with 06/30/72 09/22/72
Rules.
4.7 Answers.................... 06/30/72 09/22/72
4.8 Dismissal of Petition...... 06/30/72 09/22/72
4.9 Place of Hearing........... 06/30/72 09/22/72
4.10 Notice of Hearing.......... 06/30/72 09/22/72
4.11 Evidence................... 06/30/72 09/22/72
4.12 Record of Proceedings...... 06/30/72 09/22/72
4.13 Preliminary Matters........ 06/30/72 09/22/72
4.14 Official Notice............ 06/30/72 09/22/72
4.15 Continuances............... 06/30/72 09/22/72
4.16 Hearing and Decision....... 06/30/72 09/22/72
4.17 Effective Date of Decision. 06/30/72 09/22/72
----------------------------------------------------------------------------------------------------------------
Mojave Desert AQMD (Los Angeles [LA], Riverside, San Bernardino [SB])
----------------------------------------------------------------------------------------------------------------
V--Procedure Before the Hearing.......... .............. LA-501 General............ 02/10/76 09/22/72
.............. LA-502 Filing Petitions... 06/06/77 09/08/78
.............. LA-509 Place of Hearing... 06/06/77 09/08/78
.............. Riverside General-501...... 11/04/77 12/21/78
.............. Riverside Filing Petitions- 02/10/76 06/14/78
502.
.............. Riverside Place of Hearing- 06/06/77 09/08/78
509.
.............. SB General 501............ 11/04/77 12/21/78
.............. SB Assistance to Small 05/23/79 01/27/81
Business 501.1.
.............. SB Filing Petitions 502... 11/04/77 12/21/78
.............. SB Place of Hearing 509... 11/04/77 12/21/78
----------------------------------------------------------------------------------------------------------------
[[Page 38674]]
LA, Riverside, San Bernardino
----------------------------------------------------------------------------------------------------------------
503 Contents of Petitions...... 06/22/78 03/28/79
504 Petitions for Variances.... 06/06/77 06/14/78
505 Appeal from Denial......... 08/02/76 06/14/78
506 Failure to Comply with 06/06/77 06/14/78
Rules.
507 Pleading................... 06/06/77 06/14/78
508 Dismissal of Petition...... 06/06/77 06/14/78
509 Notice of Hearing.......... 06/06/77 06/14/78
510 Evidence................... 06/06/77 06/14/78
511 Preliminary Matters........ 06/06/77 06/14/78
512 Official Notice............ 06/06/77 06/14/78
513 Continuances............... 06/06/77 06/14/78
514 Decision................... 06/06/77 06/14/78
515 Effective Date of Decision. 06/06/77 06/14/78
517 Findings................... 06/06/77 06/14/78
VIII--Orders for Abatement............... 801 General.................... 06/06/77 09/08/78
802 Order for Abatement........ 06/06/77 09/08/78
803 Filing Petitions........... 06/06/77 09/08/78
804 Contents of Petitions...... 06/06/77 09/08/78
805 Scope of Order............. 06/06/77 09/08/78
806 Findings................... 06/06/77 09/08/78
807 Pleading................... 06/06/77 09/08/78
808 Evidence................... 06/06/77 09/08/78
809 Failure to Comply with 06/06/77 09/08/78
Rules.
810 Withdrawal of Petition..... 06/06/77 09/08/78
811 Place of Hearing........... 06/06/77 09/08/78
812 Notice of Hearing.......... 06/06/77 09/08/78
813 Preliminary Matters........ 06/06/77 09/08/78
814 Official Notice............ 06/06/77 09/08/78
815 Continuance................ 06/06/77 09/08/78
816 Order and Decision......... 06/06/77 09/08/78
817 Effective Date of Decision. 06/06/77 09/08/78
VI--Procedure Before the Hearing Board... 600 General.................... 02/06/85 07/13/87
601 Filing Petitions........... 02/06/85 07/13/87
602 Contents of Petitions...... 02/06/85 07/13/87
603 Petitions for Variances.... 02/06/85 07/13/87
604 Appeal from Denial......... 02/06/85 07/13/87
605 Failure to Comply with 02/06/85 07/13/87
Rules.
606 Answers.................... 02/06/85 07/13/87
607 Withdrawal of Petition..... 02/06/85 07/13/87
608 Place of Hearing........... 02/06/85 07/13/87
609 Notice of Hearing.......... 02/06/85 07/13/87
610 Evidence................... 02/06/85 07/13/87
611 Record of Proceedings...... 02/06/85 07/13/87
612 Preliminary Matters........ 02/06/85 07/13/87
613 Official Notice............ 02/06/85 07/13/87
614 Continuances............... 02/06/85 07/13/87
615 Decision................... 02/06/85 07/13/87
616 Effective Date of Decision. 02/06/85 07/13/87
617 Emergency Variances........ 02/06/85 07/13/87
VIII--Orders Abatement................... 800 General.................... 02/06/85 07/13/87
801 Order for Abatement........ 02/06/85 07/13/87
802 Filing Petitions........... 02/06/85 07/13/87
803 Contents of Petitions...... 02/06/85 07/13/87
804 Scope of Order............. 02/06/85 07/13/87
805 Findings................... 02/06/85 07/13/87
806 Pleading................... 02/06/85 07/13/87
807 Evidence................... 02/06/85 07/13/87
808 Failure to Comply with 02/06/85 07/13/87
Rules.
809 Withdrawal of Petition..... 02/06/85 07/13/87
810 Place of Hearing........... 02/06/85 07/13/87
811 Notice of Hearing.......... 02/06/85 07/13/87
812 Preliminary Matters........ 02/06/85 07/13/87
813 Official Notice............ 02/06/85 07/13/87
814 Continuance................ 02/06/85 07/13/87
815 Order and Decision......... 02/06/85 07/13/87
816 Effective Date of Decision. 02/06/85 07/13/87
----------------------------------------------------------------------------------------------------------------
[[Page 38675]]
Northern Sierra AQMD (Nevada/Plumas/Sierra)
----------------------------------------------------------------------------------------------------------------
IV--Permit Says.......................... 404 Emergency Variance 10/15/79 05/18/81
Procedures.
Reg V-Permit............................. 522 Analysis Fees.............. 06/22/81 04/23/82
Operate Regs............................. 523 Permit Fees................ 06/06/77 09/14/78
Reg VI-Procedure Before the Hearing Board 601 General.................... 06/06/77 09/14/78
602 Filing Petitions........... 06/06/77 09/14/78
604 Petition for Variance...... 06/06/77 09/14/78
605 Appeal from Denial......... 06/06/77 09/14/78
606 Failure to Comply Rules.... 06/06/77 09/14/78
607 Answers.................... 06/06/77 09/14/78
608 Dismissal of Petition...... 06/06/77 09/14/78
609 Place of Hearing........... 06/06/77 09/14/78
611 Evidence................... 06/06/77 09/14/78
VII--Procedure Before the Hearing Board.. 700 Appl. Articles of the 06/06/77 09/14/78
Health & Safety Code.
701 General.................... 04/10/75 06/14/78
702 Filing Petitions........... 04/10/75 06/14/78
703 Contents of Petitions...... 04/10/75 06/14/78
704 Petitions for Variances.... 06/06/77 09/14/78
705 Appeal from Denial......... 06/06/77 09/14/78
706 Failure to Comply with 06/06/77 09/14/78
Rules.
707 Answers.................... 06/06/77 09/14/78
708 Dismissal of Petition...... 06/06/77 09/14/78
709 Place of Hearing........... 06/06/77 09/14/78
710 Notice of Public Hearing... 06/06/77 09/14/78
711 Evidence................... 06/06/77 09/14/78
712 Preliminary Matters........ 04/10/75 06/14/78
713 Official Notice............ 04/10/75 06/14/78
714 Continuances............... 04/10/75 06/14/78
715 Decision................... 04/10/75 06/14/78
716 Effective Date of Decision. 04/10/75 06/14/78
----------------------------------------------------------------------------------------------------------------
North Coast Unified AQMD
----------------------------------------------------------------------------------------------------------------
III--Fees................................ 300 Permit Fees................ 10/23/81 04/13/82
310 Permit Fee Schedules....... 10/23/81 04/13/82
320 Hearing Board Fees......... 05/23/79 10/31/80
340 Technical Report--Charges 11/10/76 08/02/78
For.
350 Fuel Burning and Power 02/03/83 11/18/83
Generation Surcharges.
V--Enforcement & Penalty Acts............ 510 Orders for Abatement....... 11/10/76 08/02/78
VI--Hearing Board & Variance Procedures.. 600 Authorization.............. 03/14/84 12/05/84
610 Petition Procedure......... 03/14/84 12/05/84
615 Emergency Variances........ 05/07/79 10/31/80
616 Interim Variance........... 08/06/82 11/10/82
618 Modification of Increments 08/06/82 11/10/82
of Progress Sch..
620 Hearing Procedures......... 11/10/76 08/02/78
630 Decisions.................. 11/10/76 08/02/78
640 Record of Proceedings...... 11/10/76 08/02/78
650 Appeal of Decision......... 11/10/76 08/02/78
----------------------------------------------------------------------------------------------------------------
Northern Sonoma County APCD
----------------------------------------------------------------------------------------------------------------
III--Fees................................ 300 Permit Fees................ 10/23/81 04/13/82
310 Permit Fee Schedules....... 10/23/81 04/13/82
320 Hearing Board Fees......... 05/07/79 10/31/80
340 Technical Reports--Charges 11/10/76 08/16/78
For.
V--Enforcement & Penalty Acts............ 510 Orders for Abatement....... 11/10/76 08/16/78
VI--Hearing Board & Variance Procedures.. 600 Authorization.............. 11/10/76 08/16/78
VII--Procedure Before the Hearing Board.. 610 Petition Procedures........ 11/10/76 08/16/78
615 Emergency Variance......... 05/07/79 10/31/80
620 Hearing Procedures......... 11/10/76 08/16/78
630 Decisions.................. 11/10/76 08/16/78
640 Record of Proceedings...... 11/10/76 08/16/78
[[Page 38676]]
650 Appeal of Decision......... 11/10/76 08/16/78
----------------------------------------------------------------------------------------------------------------
Placer County APCD (Mountain Counties Air Basin Portion)
----------------------------------------------------------------------------------------------------------------
IV--Misc. Provisions..................... 404 Upset Conditions, 10/15/79 05/18/81
Breakdown, or Scheduled
Maintenance.
VI--Fees................................. 42 Technical Reports, Charges 02/21/72 05/31/72
for.
601 Permit Fees................ 05/28/81 04/23/82
602 Hearing Board Fees......... 10/15/79 05/18/81
603 Analysis Fees.............. 05/23/79 05/18/81
VII--Procedure Before the Hearing Board.. 701 General.................... 01/10/75 06/14/78
702 Filing Petitions Hearing 05/28/81 04/23/82
Board.
703 Contents of Petitions...... 10/13/77 11/15/78
704 Petitions for Variances.... 10/13/77 11/15/78
707 Answers.................... 01/10/75 06/14/78
708 Dismissal of Petition...... 10/13/77 11/15/78
709 Place of Hearing........... 10/13/77 11/15/78
710 Notice of Hearing.......... 10/13/77 11/15/78
711 Evidence................... 01/10/75 06/14/78
712 Preliminary Matters........ 01/10/75 06/14/78
713 Official Notice............ 01/10/75 06/14/78
714 Continuances............... 01/10/75 06/14/78
715 Decision................... 10/13/77 11/15/78
716 Effective Date of Decision. 01/10/75 06/14/78
----------------------------------------------------------------------------------------------------------------
Placer County APCD (Lake Tahoe Air Basin)
----------------------------------------------------------------------------------------------------------------
VI--Fees................................. 40 Hearing Board Fees......... 02/21/72 05/31/72
42 Technical Reports.......... 02/21/72 05/31/72
603 Analysis Fees.............. 10/13/77 11/15/78
604 Renewal Fees............... 10/13/77 11/15/78
605 Exemption to Rule 604...... 10/13/77 11/15/78
V--Procedure Before the Hearing Board.... 701 General.................... 01/10/75 06/14/78
702 Filing Petitions........... 10/13/77 11/15/78
703 Contents of Petitions...... 10/13/77 11/15/78
704 Petitions for Variances.... 10/13/77 11/15/78
705 Appeal for Denial.......... 01/10/75 06/14/78
706 Failure to Comply with 10/13/77 11/15/78
Rules.
707 Answers.................... 01/10/75 06/14/78
708 Dismissal of Petition...... 10/13/77 11/15/78
709 Place of Hearing........... 10/13/77 11/15/78
710 Notice of Hearing.......... 10/13/77 11/15/78
711 Evidence................... 01/10/75 06/14/78
712 Preliminary Matters........ 01/10/75 06/14/78
713 Official Notice............ 01/10/75 06/14/78
714 Continuances............... 01/10/75 06/14/78
715 Decision................... 10/13/77 11/15/78
716 Effective Date of Decision. 01/10/75 06/14/78
----------------------------------------------------------------------------------------------------------------
Sacramento Metropolitan AQMD
----------------------------------------------------------------------------------------------------------------
70 Permit Fees--Stationary 11/08/82 06/01/83
Source.
71 Hearing Board Fees......... 05/23/79 01/26/82
74 Agricultural Burning....... 09/05/80 06/18/82
601 Procedure Before the 04/14/84 12/05/84
Hearing Board.
602 Breakdown Conditions; 04/14/84 12/05/84
Emergency Variances.
----------------------------------------------------------------------------------------------------------------
San Diego County APCD
----------------------------------------------------------------------------------------------------------------
III--Fees................................ 40 Permit Fees................ 07/19/83 02/01/84
41 Annual Permit Renewal Fees. 07/25/73 05/11/77
42 Hearing Board Fees......... 10/23/81 07/06/82
44 Technical Reports--Charges 06/30/72 09/22/72
for.
V--Procedure Before the Hearing Board.... 75 General.................... 07/13/78 07/30/79
76 Request for Hearing........ 10/13/77 08/31/78
77 Contents of Petitions...... 06/30/72 09/22/72
78 Petitions for Variances.... 06/30/72 09/22/72
[[Page 38677]]
79 Appeal from Denial......... 06/30/72 09/22/72
80 Failure to comply with 06/30/72 09/22/72
Rules.
82 Answers.................... 06/30/72 09/22/72
83 Dismissal of Petition...... 06/30/72 09/22/72
84 Place of Hearing........... 06/30/72 09/22/72
85 Notice of Hearing.......... 10/13/77 08/31/78
86 Evidence................... 06/30/72 09/22/72
87 Preliminary Matters........ 06/30/72 09/22/72
88 Official Notice............ 06/30/72 09/22/72
89 Continuances............... 06/30/72 09/22/72
90 Decision................... 06/30/72 09/22/72
91 Effective Date of Decision. 06/30/72 09/22/72
95 Requirement for Hearing.... 05/23/79 09/28/81
96 Compliance Schedules....... 10/13/77 08/31/78
97 Emergency Variance......... 07/13/78 07/30/79
98 Breakdown Conditions: 05/23/79 09/28/81
Emergency Variance.
----------------------------------------------------------------------------------------------------------------
San Joaquin County APCD
----------------------------------------------------------------------------------------------------------------
III--Fees................................ 301 Authority to Construct Fee. 05/23/79 12/09/81
302 Analysis Fee............... 05/23/79 06/18/82
303 Permit Fee................. 05/23/79 12/09/81
304 Permit Fee Schedules....... 05/23/79 12/09/81
305 Hearing Board Fees......... 05/23/79 12/09/81
306 Emission Source Testing and 05/23/79 12/09/81
Evaluation Fees.
307 Technical Reports-Charges 05/23/79 12/09/81
for.
308 Rules and Regulations- 05/23/79 12/09/81
Charges for.
309 Copies-Charges for......... 05/23/79 12/09/81
310 Professional Consultation 05/23/79 12/09/81
Fee.
311 Special Burn Permit Fee.... 05/23/79 12/09/81
V--Procedure Before the Hearing Board.... 501 Appl. Articles of the 11/10/76 10/04/77
Health & Safety Code.
502 General.................... 06/30/72 09/22/72
503 Filing Petitions........... 11/10/76 10/04/77
504 Contents of Petitions...... 10/23/74 08/22/77
505 Petitions for Variances.... 10/23/74 08/22/77
506 Appeal for Denial.......... 06/30/72 09/22/72
507 Failure to Comply with
Rules 06/30/72 09/22/72.
508 Answers.................... 06/30/72 09/22/72
509 Dismissal of Petition...... 06/30/72 09/22/72
510 Place of Hearing........... 10/23/74 08/22/77
511 Notice of Hearing.......... 05/23/79 12/09/81
512 Evidence................... 10/23/74 08/22/77
513 Compliance Schedule........ 10/23/74 08/22/77
514 Preliminary Matters........ 10/23/74 08/22/77
515 Official Notice............ 10/23/74 08/22/77
516 Continuances............... 10/23/74 08/22/77
517 Decision................... 10/23/74 08/22/77
518 Effective Date of Decision. 10/23/74 08/22/77
520 Emergency Variance......... 10/23/74 08/22/77
521 Breakdown Conditions: 08/06/82 11/10/82
Emergency Variance.
----------------------------------------------------------------------------------------------------------------
San Luis Obispo APCD
----------------------------------------------------------------------------------------------------------------
III--Fees................................ 301 Fees....................... 10/23/81 06/18/82
302 Schedule of Fees........... 02/03/83 11/18/83
303 Hearing Board Fees......... 02/25/80 05/18/81
304 Technical Reports-Charges 02/25/80 05/18/81
for.
V--Procedure Before the Hearing Board.... 801 Hearing Board Fees......... 11/10/76 08/04/78
802 Filing Petitions........... 11/10/76 08/04/78
803 Contents of Petitions...... 11/10/76 08/04/78
804 Petitions for Variances.... 11/10/76 08/04/78
805 Appeal for Denial.......... 11/10/76 08/04/78
806 Failure to Comply with 11/10/76 08/04/78
Rules.
807 Notice of Hearing.......... 11/10/76 08/04/78
808 Place of Hearing........... 11/10/76 08/04/78
809 Pleading................... 11/10/76 08/04/78
810 Dismissal of Petition...... 11/10/76 08/04/78
811 Preliminary Matters........ 11/10/76 08/04/78
[[Page 38678]]
812 Evidence................... 11/10/76 08/04/78
813 Official Notice............ 11/10/76 08/04/78
814 Continuances............... 11/10/76 08/04/78
815 Decision................... 11/10/76 08/04/78
816 Effective Date of Decision. 11/10/76 08/04/78
817 Increments of Progress..... 11/10/76 08/04/78
----------------------------------------------------------------------------------------------------------------
Santa Barbara County APCD
----------------------------------------------------------------------------------------------------------------
II--Permits.............................. 210 Fees....................... 05/23/79 05/18/81
211 Technical Reports--Fees.... 05/23/79 05/18/81
V--Procedure Before the Hearing Board.... 501 General.................... 05/23/79 05/18/81
502 Filing Petitions........... 05/23/79 05/18/81
503 Contents of Petitions...... 05/23/79 05/18/81
504 Petitions for Variances: 05/23/79 05/18/81
Contents.
506 Emergency Variances for 05/23/79 05/18/81
Breakdowns.
507 Appeal from Denial......... 05/23/79 05/18/81
508 Failure to Comply with 05/23/79 05/18/81
Rules.
509 Petition Response.......... 05/23/79 05/18/81
510 Withdrawal of Petition..... 05/23/79 05/18/81
511 Place of Hearing........... 05/23/79 05/18/81
512 Notice of Hearing.......... 05/23/79 05/18/81
514 Preliminary Matters........ 05/23/79 05/18/81
515 Official Notice............ 05/23/79 05/18/81
516 Continuances............... 05/23/79 05/18/81
518 Effective Date of Decision. 05/23/79 05/18/81
----------------------------------------------------------------------------------------------------------------
Shasta County APCD
----------------------------------------------------------------------------------------------------------------
IV--Procedure Before the Hearing Board... 4.1 Appl. Sections of the 11/21/86 04/12/89
Health & Safety Code.
4.2 General.................... 07/19/74 08/22/77
4.3 Filing Petitions........... 07/19/74 08/22/77
4.4 Hearing Board Fees......... 05/20/82 08/22/77
4.5 Contents of Petitions...... 10/13/77 11/14/78
4.6 Petitions for Variances.... 10/13/77 11/14/78
4.8 Contents of Notice of 07/19/74 08/22/77
Appeal.
4.9 Failure to Comply with 07/19/74 08/22/77
Rules.
4.10 Answers.................... 07/19/74 08/22/77
4.15 Rules of Evidence and 07/19/74 08/22/77
Procedure.
4.23 Additional Rules........... 07/19/74 08/22/77
----------------------------------------------------------------------------------------------------------------
South Coast AQMD
----------------------------------------------------------------------------------------------------------------
III--Fees................................ 303 Hearing Board Fees......... 02/03/83 11/18/83
V--Procedure Before the Hearing Board.... 501 Procedure Before the 02/10/76 06/14/78
Hearing Board--General.
501.1 Assistance to Small 12/17/79 09/28/81
Business.
502 Filing Petitions........... 07/19/83 02/01/84
503 Contents of Petitions 06/22/78 03/28/79
(Deletion).
504 Petitions for Variances and 10/23/81 07/06/82
Appeals.
504.1 Rules from which Variances 10/23/81 07/06/82
are not Allowed.
505 Appeal from Denial 12/17/79 09/28/81
(Deletion).
506 Failure to Comply with 02/10/76 06/14/78
Rules.
507 Pleading................... 02/10/76 06/14/78
508 Dismissal of Petition...... 02/10/76 06/14/78
509 Place of Hearing........... 02/10/76 06/14/78
510 Notice of Hearing.......... 02/10/76 06/14/78
511 Evidence................... 02/10/76 06/14/78
511.1 Subpoenas.................. 02/10/76 06/14/78
512.1 Prehearing Conference...... 02/10/76 06/14/78
513 Administrative Notice...... 02/10/76 06/14/78
514 Continuances............... 02/10/76 06/14/78
515 Decision (Deletion)........ 02/10/76 06/14/78
516 Findings and Decision...... 02/10/76 06/14/78
517 Emergency Variance 02/10/76 06/14/78
Procedures--Breakdowns.
518 Findings (Deletion)........ 02/10/76 06/14/78
VIII--Orders for Abatement............... 801 Order for Abatement-- 02/10/76 06/14/78
General.
[[Page 38679]]
802 Order for Abatement........ 08/02/76 06/14/78
803 Filing Petitions........... 02/10/76 06/14/78
804 Contents of Petitions...... 02/10/76 06/14/78
805 Scope of Order............. 08/02/76 06/14/78
806 Findings................... 08/02/76 06/14/78
807 Pleading................... 02/10/76 06/14/78
808 Evidence................... 02/10/76 06/14/78
809 Failure to Comply with 02/10/76 06/14/78
Rules.
810 Withdrawal of Petition..... 02/10/76 06/14/78
811 Place of Hearing........... 02/10/76 06/14/78
812 Notice of Hearing.......... 02/10/76 06/14/78
813 Preliminary Matters........ 08/02/76 06/14/78
814 Official Notice............ 02/10/76 06/14/78
815 Continuance................ 02/10/76 06/14/78
816 Order and Decision......... 08/02/76 06/14/78
817 Effective Date of Decision. 02/10/76 06/14/78
----------------------------------------------------------------------------------------------------------------
Stanislaus County APCD
----------------------------------------------------------------------------------------------------------------
III--Fees................................ 301 Permit fees................ 03/28/81 06/18/82
302 Permit Fee Schedules....... 11/08/82 06/01/83
303 Analysis Fees.............. 06/30/72 09/22/72
304 Technical Report-Charges 06/30/72 09/22/72
for.
305 Hearing Board Fees......... 07/25/80 12/09/81
V--Procedure Before the Hearing Board.... 501 Appl. Articles of the 08/02/76 08/22/77
Health & Safety Code.
502 General.................... 06/30/72 09/22/72
503 Filing Petitions........... 08/06/82 11/10/82
504 Contents of Petitions...... 08/02/76 08/22/77
505 Petitions for Variances.... 06/30/72 09/22/77
506 Appeal for Denial.......... 06/30/72 09/22/72
507 Failure to Comply with 06/30/72 09/22/72
Rules.
508 Answers.................... 06/30/72 09/22/72
509 Dismissal of Petition...... 06/30/72 09/22/72
510 Place of Hearing........... 06/30/72 09/22/72
511 Notice of Hearing.......... 08/02/76 08/22/77
512 Evidence................... 06/30/72 09/22/72
513 Preliminary Matters........ 06/30/72 09/22/72
514 Official Notice............ 06/30/72 09/22/72
515 Continuances............... 06/30/72 09/22/72
516 Decision................... 06/30/72 09/22/72
517 Effective Date of Decision. 06/30/72 09/22/72
519 Emergency Variance......... 05/23/79 06/18/82
----------------------------------------------------------------------------------------------------------------
Sutter County APCD
----------------------------------------------------------------------------------------------------------------
V--Hearing Board & Procedures............ 5.0 General.................... 01/28/81 04/12/82
5.1 Hearing Board.............. 01/28/81 04/12/82
5.2 Procedures................. 01/28/81 04/12/82
5.3 Hearings................... 01/28/81 04/12/82
5.4 Contents of Petitions for 01/28/81 04/12/82
Hearings.
5.5 Request for Variances...... 01/28/81 04/12/82
5.6 Appeal from Denial......... 01/28/81 04/12/82
5.7 Failure to Comply with 01/28/81 04/12/82
Rules.
5.8 Answers.................... 01/28/81 04/12/82
5.9 Dismissal of Request for 01/28/81 04/12/82
Hearing.
5.10 Place of Hearing........... 01/28/81 04/12/82
5.11 Notice of Hearing.......... 01/28/81 04/12/82
5.12 Evidence................... 01/28/81 04/12/82
5.13 Preliminary Matters........ 01/28/81 04/12/82
5.14 Official Notice............ 01/28/81 04/12/82
5.15 Continuances............... 01/28/81 04/12/82
5.16 Decision................... 01/28/81 04/12/82
5.17 Effective Date of Decision. 01/28/81 04/12/82
5.19 Record of Hearing.......... 01/28/81 04/12/82
VI--Variances............................ 6.0 Variance Applicability..... 01/28/81 04/12/82
6.1 Interim Variances.......... 01/28/81 04/12/82
6.2 Limitation on Granting 01/28/81 04/12/82
Variance.
6.3 Board's Auth. to Impose 01/28/81 04/12/82
Req. on Variances.
[[Page 38680]]
6.4 Cash Bond.................. 01/28/81 04/12/82
6.5 Modifying or Revoking 01/28/81 04/12/82
Variances.
6.6 Variance Time Period....... 01/28/81 04/12/82
6.7 Variance Action............ 01/28/81 04/12/82
VII--Fees................................ 7.0 Hearing Board Fee.......... 01/28/81 04/12/82
7.1 Analysis Fee............... 01/28/81 04/12/82
7.2 Technical Report Fee....... 01/28/81 04/12/82
----------------------------------------------------------------------------------------------------------------
Tehama County APCD
----------------------------------------------------------------------------------------------------------------
Reg V--Procedure Before the Hearing Board 5.1 Appl. Articles of the 02/21/72 05/31/72
Health & Safety Code.
5.2 General.................... 02/10/86 02/03/87
5.3 Filing Petitions........... 02/10/86 02/03/87
5.6 Contents of Petitions...... 02/10/86 02/03/87
5.7 Petitions for Variance..... 02/10/86 02/03/87
5.8 Petition for Abatement 02/10/86 02/03/87
Order.
5.9 Failure to Comply with 02/10/86 02/03/87
Rules Service of Notices.
5.11 Answers.................... 02/10/86 02/03/87
5.12 Withdrawal of Petitions.... 02/10/86 02/03/87
5.13 Place of Hearing........... 02/10/86 02/03/87
5.15 Rules of Evidence & 02/10/86 02/03/87
Procedures.
5.16 Preliminary Matters........ 02/10/86 02/03/87
5.17 Official Notice............ 02/10/86 02/03/87
5.18 Continuances............... 02/10/86 02/03/87
5.20 Effective Date of Decision. 02/10/86 02/03/87
5.21 Issuance of Subpoenas: 02/10/86 02/03/87
Subpoenas Duces Tecum.
5.22 Confidential Information... 02/10/86 02/03/87
5.23 Additional Rule 02/10/86 02/03/87
Implementation plans
Agricultural Burning.
----------------------------------------------------------------------------------------------------------------
Tulare County APCD
----------------------------------------------------------------------------------------------------------------
I--General Provisions.................... 105 Order for Abatement........ 11/10/76 09/21/77
III--Fees................................ 301 Permit Fee................. 10/15/79 12/09/81
302 Permit Fee Schedules....... 10/15/79 12/09/81
303 Analysis Fees.............. 06/30/72 09/22/72
304 Technical Reports--Charges 06/30/72 09/22/72
For.
305 Hearing Board Fees......... 11/10/76 09/21/77
V--Procedure Before the Hearing Board.... 501 Applicable Articles of the 06/30/72 09/22/72
Health.
502 General.................... 06/30/72 09/22/72
503 Filing Petitions........... 10/23/74 08/22/77
504 Contents of Petitions...... 10/23/74 08/22/77
505 Petitions for Variances.... 10/23/74 08/22/77
506 Appeal for Denial.......... 06/30/72 09/22/72
507 Failure to Comply with 06/30/72 09/22/72
Rules.
508 Answers.................... 06/30/72 09/22/72
509 Dismissal of Petition...... 06
FR Doc. 96-18834 Correction of Implementation Plans; American Samoa, Arizona, California, Hawaii, and Nevada State Implementation Plans
/30/72 09/22/72
510 Place of Hearing........... 06/30/72 09/22/72
511 Notice of Hearing.......... 06/30/72 09/22/72
512 Evidence................... 06/30/72 09/22/72
513 Preliminary Matters........ 06/30/72 09/22/72
514 Official Notice............ 06/30/72 09/22/72
515 Continuances............... 10/23/74 08/22/77
516 Decision................... 06/30/72 09/22/72
517 Effective Date of Decision. 06/30/72 09/22/72
518 Lack of Permit............. 06/30/72 09/22/72
519 Emergency Variance......... 10/23/74 08/22/77
----------------------------------------------------------------------------------------------------------------
Tuolumne County APCD
----------------------------------------------------------------------------------------------------------------
V--Permit to Operate Part D.............. 516 Emergency Variance 10/23/81 05/27/82
Procedures.
VI--Fees................................. 601 Permit Fee................. 02/10/77 12/06/79
602 Permit Fee Schedules....... 02/10/77 12/06/79
603 Analysis Fee............... 02/10/77 12/06/79
604 Technical Reports.......... 02/10/77 12/06/79
605 Hearing Board Fees......... 02/10/77 12/06/79
VII--Procedure Before the Hearing Board.. 700 Applicable Articles of the 02/10/77 12/06/79
Health.
[[Page 38681]]
701 General.................... 02/10/77 12/06/79
702 Filing Petitions........... 02/10/77 12/06/79
703 Contents of Petitions...... 02/10/77 12/06/79
704 Petitions for Variances.... 10/23/81 05/27/82
705 Appeal for Denial.......... 02/10/77 12/06/79
706 Failure to Comply with 02/10/77 12/06/79
Rules.
707 Answers.................... 02/10/77 12/06/79
708 Dismissal of Petition...... 02/10/77 12/06/79
709 Place of Hearing........... 02/10/77 12/06/79
710 Notice of Hearing.......... 02/10/77 12/06/79
711 Evidence................... 02/10/77 12/06/79
712 Preliminary Matters........ 02/10/77 12/06/79
713 Official Notice............ 02/10/77 12/06/79
714 Continuances............... 02/10/77 12/06/79
715 Decision................... 02/10/77 12/06/79
716 Effective Date of Decision. 02/10/77 12/06/79
----------------------------------------------------------------------------------------------------------------
Ventura County APCD
----------------------------------------------------------------------------------------------------------------
III--Fees................................ 40 Fees-General............... 05/23/79 06/18/82
41 Hearing Board Fees......... 07/19/83 02/01/84
42 Permit Fees................ 10/23/81 06/18/82
43 Technical Reports--Charges 04/21/76 08/15/77
for.
VII--Procedure Before the Hearing Board.. 110 General.................... 05/23/79 06/18/82
111 Filing Petitions........... 05/23/79 06/18/82
112 Contents of Petitions...... 05/23/79 06/18/82
113 Petitions for Variances.... 05/23/79 06/18/82
114 Appeal from Denial, 05/23/79 06/18/82
Suspension, Conditional
Approval.
115 Petitions for Abatement 11/10/76 08/15/77
Orders or Revocation of
Permits.
116 Failure to Comply with 11/10/76 08/15/77
Rules.
117 Answers.................... 11/10/76 08/15/77
118 Dismissal of Petition...... 11/10/76 08/15/77
119 Place of Hearing........... 11/10/76 08/15/77
120 Notice of Hearing.......... 05/23/79 06/18/82
121 Evidence................... 05/23/79 06/18/82
122 Official Notice............ 11/10/76 08/15/77
123 Findings,Variance or 05/23/79 06/18/82
Abatement Order.
124 Decision................... 05/23/79 06/18/82
125 Abatement Order............ 05/23/79 06/18/82
126 Effective Date of Decision. 05/23/79 06/18/82
128 Compensation-Hearing Board 11/10/76 08/15/77
Members.
129 Burden of Proof............ 11/10/76 08/15/77
130 Variance Order Conditions.. 05/23/79 06/18/82
----------------------------------------------------------------------------------------------------------------
Yolo-Solano County APCD
----------------------------------------------------------------------------------------------------------------
IV--Fees.................................
4.1 Authority to Construct Fees 05/20/82 11/10/82
4.2 Permit to Operate Fees..... 05/20/82 11/10/82
4.3 Hearing Board Fees......... 10/15/79 01/26/82
4.4 Analysis Fees.............. 07/25/73 06/14/78
4.5 Technical Reports-Charges.. 07/25/73 06/14/78
V--Procedure Before the Hearing Board....
5.1 Appl. Articles of the 06/22/78 01/29/79
Health & Safety Code.
5.2 General.................... 07/25/73 06/14/78
5.3 Filing Petitions........... 07/25/73 06/14/78
5.4 Contents of Petitions...... 02/25/80 01/26/82
5.5 Petitions for Variances.... 07/25/73 06/14/78
5.6 Appeal of Denial........... 07/19/74 06/14/78
5.7 Failure to Comply with 07/25/73 06/14/78
Rules.
5.8 Answers.................... 07/25/73 06/14/78
5.9 Dismissal of Petition...... 07/25/73 06/14/78
5.10 Place of Hearing........... 06/22/78 01/29/78
5.11 Notice of Hearing.......... 06/22/78 01/29/79
5.12 Evidence................... 07/19/74 06/14/78
5.13 Preliminary Matters........ 07/25/73 06/14/78
5.14 Official Notice............ 07/25/73 06/14/78
5.15 Continuances............... 07/25/73 06/14/78
[[Page 38682]]
5.16 Decision................... 07/25/73 06/14/78
5.17 Effective Date of Decision. 07/25/73 06/14/78
----------------------------------------------------------------------------------------------------------------
State of Hawaii
----------------------------------------------------------------------------------------------------------------
Approval
Regulation Rule No. Rule name Submit date date
----------------------------------------------------------------------------------------------------------------
Specific Variances....................... 11-60-36 Variances.................. 12/20/82 08/18/83
Ch. 43, Sec. 7........................... .............. Variances.................. 01/28/72 05/31/72
Variances.................. 09/12/78 04/23/79
Ch. 43, Sec. 7........................... .............. A Variance of the Hawaii 04/06/82 09/30/82
Public Health Regs.
----------------------------------------------------------------------------------------------------------------
American Samoa
----------------------------------------------------------------------------------------------------------------
Approval
Regulation Rule No. Rule name Submit date date
----------------------------------------------------------------------------------------------------------------
Ch. 35.01................................ .............. Environmental Quality Act..
----------------------------------------------------------------------------------------------------------------
State of Nevada
----------------------------------------------------------------------------------------------------------------
Approval
Regulation Rule No. Rule name Submit date date
----------------------------------------------------------------------------------------------------------------
Nevada Department of Conservation and Natural Resources
----------------------------------------------------------------------------------------------------------------
State Regs............................... 2.8 Administrative Fines....... 01/28/72 05/31/72
2.11 Variances.................. 01/28/72 05/31/72
Statutes................................. 445.506 Variances: Conditions, 12/29/78 07/10/80
Criteria for Granting
Variance.
445.511 Renewal, Protest & Hearing 12/29/78 07/10/80
on Application.
445.516 Limitations on Duration; 12/29/78 07/10/80
Annual Review.
445.521 Granting, Renewal of 12/29/78 07/10/80
Variance Discretionary.
----------------------------------------------------------------------------------------------------------------
Clark County
----------------------------------------------------------------------------------------------------------------
VII--Hearing Board....................... 7.1-7.13 Hearing Board.............. 11/17/81 06/18/82
7.14 Request for Variances...... 11/17/81 06/18/82
7.15 Renewals of Variances...... 11/17/81 06/18/82
7.16 Duration of Variance....... 11/17/81 06/18/82
7.17-7.19 Hearing Board.............. 11/17/81 06/18/82
IX--Admin................................ 9.1 Administrative Fines....... 11/17/81 06/18/82
Fines.................................... 9.2-9.3 Administrative Fines....... 07/24/79 08/27/81
----------------------------------------------------------------------------------------------------------------
[FR Doc. 96-18834 Filed 7-24-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-18774 Acquisition Regulation; Department of Energy Management and Operating Contracts.
[Federal Register Volume 61, Number 144 (Thursday, July 25, 1996)]
[Proposed Rules]
[Pages 38701-38702]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18774]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF ENERGY
48 CFR Parts 917, 950, 952 and 970
RIN 1991-AB-09
Acquisition Regulation; Department of Energy Management and
Operating Contracts.
AGENCY: Department of Energy.
ACTION: Proposed rule; supplemental notice.
-----------------------------------------------------------------------
SUMMARY: On June 24, 1996, the Department of Energy (DOE or Department)
published a notice of proposed rulemaking (61 FR 32588) (DOE-NOPR) to
amend the Department of Energy Acquisition Regulation (DEAR) to
incorporate certain contract reform initiatives. Among the contract
reform initiatives contained in the DOE-NOPR was a proposal to amend
the DEAR to address the treatment of costs which its management and
operating contractors incur in proceedings involving qui tam actions.
On June 20, 1996, the Civilian Agency Acquisition Council and the
Defense Acquisition Council published a notice of proposed rulemaking
(61 FR 31790) (FAR-NOPR) to amend the Federal Acquisition Regulation
(FAR) to address the same issue. This notice solicits comments on
whether the Department should adopt the FAR approach, instead of its
originally proposed approach, in addressing legal costs incurred in
connection with qui tam actions in which the Government does not
intervene.
DATES: Written comments on the issue presented in this notice and on
the DOE-NOPR must be submitted by August 23, 1996.
ADDRESSES: All comments are to be submitted to Connie P. Fournier,
Office of Policy (HR-51), Department of Energy, 1000 Independence
Avenue, SW., Washington, DC. 20585, (202) 586-8245; (202) 586-0545
(facsimile); [email protected] (Internet).
The administrative record regarding this rulemaking that is on file
for public inspection, to include a copy of the transcript of the
public hearing scheduled for August 1st at the Department's
Independence Avenue address, and any additional public comments
received, is located in the Department's Freedom of Information Reading
Room, Room 1E-190, 1000 Independence Avenue, SW., Washington, DC 20585.
FOR FURTHER INFORMATION CONTACT: Connie P. Fournier, Office of Policy
(HR-51), Department of Energy, 1000 Independence Avenue, SW.,
Washington, DC 20585, (202) 586-8245.
SUPPLEMENTARY INFORMATION: On June 24, 1996, DOE published a NOPR to
amend the Department of Energy Acquisition Regulation (DEAR) to
incorporate certain contract reform initiatives. Among the Department-
wide contract reform initiatives contained in the DOE-NOPR was a
proposal to amend DEAR 970.5204-61, Cost Prohibitions Related to Legal
and Other Proceedings, to add a new paragraph (h). The proposal
addresses the treatment of management and operating contractor costs
incurred in proceedings involving qui tam actions under the False
Claims Act, 31 U.S.C. 3730, alleging fraud against the Government,
which are not covered by the existing provisions of that clause.
On June 20, while the Department was waiting for its own proposal
to be published, the Civilian Agency Acquisition Council and the
Defense Acquisition Council published a notice of proposed rulemaking
that addresses the same issue. The FAR-NOPR approach would amend the
cost principle at FAR 31.205-47 by amending paragraph (b), creating a
new subparagraph (c)(2), and amending subparagraph (e)(3). Except for
the change in existing policy contained in (e)(3), which goes beyond
qui tam cases, the DOE-NOPR and FAR-NOPR approaches would have the same
result. Both approaches would make legal costs connected with qui tam
actions which result in a judgment against the contractor an
unallowable cost, and both approaches authorize the contracting officer
to make provisional or conditional reimbursement pending the outcome of
a case. The only difference occurs in the event of a
[[Page 38702]]
settlement agreement, where the FAR-NOPR approach would only allow 80%
of the contractor's costs to be reimbursed, even if the settlement
agreement provides for full reimbursement.
The Department is considering switching to the FAR-NOPR approach
and amending existing paragraphs in its clause, rather than creating a
new stand-alone paragraph. DOE urges interested members of the public
to comment on the two approaches and whether the Department should
adopt the FAR approach in its final rulemaking.
Issued in Washington, DC on July 18, 1996.
Richard H. Hopf,
Deputy Assistant Secretary for Procurement and Assistance Management.
[FR Doc. 96-18774 Filed 7-24 -96; 8:45 am]
BILLING CODE 6450-01-P
Complete official Federal Register PDF
FR Doc. 96-18685 Endangered and Threatened Wildlife and Plants; Notice of Six Month Extension on the Proposed Rule to List the Barton Springs Salamander as an Endangered Species
[Federal Register Volume 61, Number 144 (Thursday, July 25, 1996)]
[Proposed Rules]
[Pages 38702-38703]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18685]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AC22
Endangered and Threatened Wildlife and Plants; Notice of Six
Month Extension on the Proposed Rule to List the Barton Springs
Salamander as an Endangered Species
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; notice of extension.
-----------------------------------------------------------------------
SUMMARY: The U.S. Fish and Wildlife Service (Service) gives notice that
the deadline to determine whether the Barton Springs salamander
(Eurycea sosorum) is an endangered species under the Endangered Species
Act of 1973 (Act), as amended, is extended for a period not to exceed
August 30, 1996.
DATES: The new deadline for final action on the proposed listing of the
Barton Springs salamander as an endangered species is August 30, 1996.
The public comment period on this proposed listing was closed on July
10, 1996 by virtue of an order issued on that date by the United States
District Court for the Western District of Texas.
ADDRESSES: Inquiries regarding the proposed listing should be sent to
the U.S. Fish and Wildlife Service, Austin Ecological Services Field
Office, 10711 Burnet Road, Suite 200, Austin, Texas 78758. Comments and
materials received will be available for public inspection, by
appointment, during normal business hours at the above address.
FOR FURTHER INFORMATION CONTACT: Field Supervisor, U.S. Fish and
Wildlife Service, Ecological Services, 10711, Burnet Road, Suite 200,
Austin, Texas 78758 (512) 490-0057, facsimile (512) 490-0974.
SUPPLEMENTARY INFORMATION:
Background
The Service published a proposed rule to list the Barton Springs
salamander as an endangered species on February 17, 1994 (59 FR 7968).
As set forth in the proposal, the primary threat to this species is
contamination of the waters that supply Barton Springs by potential
catastrophic events and chronic degradation resulting from urban
activities. Also of concern are disturbances to the salamander's above-
ground springhead habitats (the waters in Barton Springs, Eliza Pool,
and Sunken Garden Springs) and reduced groundwater supplies resulting
from increased groundwater withdrawal.
The comment period on the proposed listing originally closed April
18, 1994. It was reopened May 26, 1994 and closed July 1, 1994 (59 FR
27257; May 26, 1994). On March 19, 1995, the Service published a notice
extending the deadline for final action on this proposed listing for a
period of up to six months and the public comment period was reopened
until May 17, 1995 (60 FR 13105). The notice indicated this extension
was necessary because, ``during the comment periods and subsequent to
the close of comment on this proposal, the Service received
recommendations and information relevant to a final decision on the
listing of the salamander. In order to adequately incorporate all
pertinent information in the deliberation leading
[[Page 38703]]
to a decision and to ensure an opportunity for public comment on as
complete an administrative record as possible, the deadline for final
action on this proposal is being extended and the comment period
reopened'' (60 FR 13105).
In the July 10, 1996, Order of United States District Court for the
Western District of Texas (``July 10 Order''), the court found that,
``the extension was not valid because an extension under the ESA can
only be granted by the Secretary based on a finding that there is
substantial disagreement regarding the sufficiency and accuracy of the
available data upon which the listing decision is to be made.''
Specifically, the court found that the need to consider a report by the
Barton Springs/Edwards Aquifer Conservation District did not justify
the extension. The court found that ``Congress determined that there
must be substantial scientific disagreement in order to warrant an
extension * * *.'' However, the Act indicates ``substantial
disagreement'' is necessary for a six month extension to be appropriate
and does not specify that disagreement must be scientific. In that the
inadequacy of existing regulatory mechanisms is one of the five
elements which the Service must consider in determining whether to list
a species, 16 U.S.C. 1533(a)(1)(D), the Service believes that
substantial disagreement concerning this aspect of the listing decision
constitutes a valid basis for a six month extension since data
regarding that element is ``relevant to the determination * * *
concerned * * *.'' 16 U.S.C. 1533(b)(6)(B)(i).
The court ordered the Secretary to make a decision whether to list
the salamander as endangered, withdraw the listing, or extend the time
to make a decision by no more than six months. The Secretary now finds
that there exists substantial disagreement regarding the sufficiency or
accuracy of the data regarding the inadequacy of existing regulatory
mechanisms upon which the listing decision is to be made.
The court anticipated the possibility that the Secretary might opt
for a six month extension and specified a method by which the six
months should be calculated for the purposes of this listing. The court
instructed the Secretary that in the event such an extension was deemed
warranted, that, ``the six month period began on February 17, 1995,
(the date upon which the Secretary was to make some determination) and
continues until April 10, 1995 (the starting date of the moratorium--54
days). The six month period commenced again on April 26, 1996, when the
President waived the budget moratorium. Therefore, the six month
extension, if invoked, expires on August 30, 1996'' July 10 Order at 7.
Since the Southwest Region identified processing the final
determination for the Barton Springs salamander as its highest priority
under the listing priority guidance (61 FR 24722; May 16, 1996), the
Service intends to issue a final determination by August 30, 1996.
Section 4(b)(6)(I) of the Act indicates that the Secretary may
extend the one year period following proposal for six months ``for
purposes of soliciting additional data.'' The Service is unable to
solicit additional data at this time since the court has ordered the
comment period, which the Service reopened on June 24, 1996 (61 FR
32413), closed effective July 10, 1996, the date of its order. At the
time the Service reopened the comment period, however, it justified
that action by noting the need to obtain additional information on
``proposed regulatory protection under State authorities including
water quality protection zones, nonpoint source pollution programs,
monitoring, and Edwards Aquifer-specific actions * * *. To evaluate
effectively whether the existing regulatory structure may adequately
protect the species, the Service must obtain further information on
these developments'' (61 FR 32414). The Service also reprinted two
letters, one from the Texas Natural Resources Conservation Commission
and one from Valarie Bristol, Travis County Commissioner, requesting
the comment period be reopened and noting regulatory initiatives
concerning which information should be gathered. In the notice
reopening the comment period, the Service advised interested parties to
submit any information as soon as possible because the comment period
might be closed by the courts without advance notice. As described
previously, the U.S. District Court for the Western District of Texas
did order the comment period closed on July 10, 1996. However, during
the two weeks the comment period was open, the Service received five
comment letters, including comments from three Texas state regulatory
agencies. Three of these comments referred specifically to the adequacy
of existing regulatory mechanisms. Therefore, while the Service will
not be able to seek additional information subsequent to the finding
the Secretary makes today, the Service believes the public was given an
opportunity to provide additional information in the very recent past.
During the next several weeks, the information received during the
comment period will be analyzed and the comments responded to in the
final decision document, thus fulfilling the goal of the six month
extension and assuring that the Service will appropriately evaluate the
five factors provided in section 4 of the Act. Such consideration would
not be possible if the Service were to make a final decision regarding
the proposal to list the Barton Springs salamander as endangered by
July 23, 1996, as required by the July 10 Order in the absence of a six
month extension.
Authority
The authority for this action is the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.).
Dated: July 18, 1996.
John G. Rogers,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 96-18685 Filed 7-24-96; 8:45 am]
BILLING CODE 4310-55-P
Complete official Federal Register PDF
FR Doc. 96-18650 Clean Air Act Approval and Promulgation of Carbon Monoxide Implementation Plan for the State of Washington: Puget Sound Attainment Demonstration
[Federal Register Volume 61, Number 144 (Thursday, July 25, 1996)]
[Proposed Rules]
[Pages 38683-38684]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18650]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[WA47-7120b; FRL-5538-4]
Clean Air Act Approval and Promulgation of Carbon Monoxide
Implementation Plan for the State of Washington: Puget Sound Attainment
Demonstration
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA proposes to approve the attainment demonstration portion
of the State Implementation Plan (SIP) revision submitted by the State
of Washington Department of Ecology, as part of its Puget Sound
nonattainment area carbon monoxide (CO) attainment plan.
In the Final Rules section of this Federal Register, EPA is
approving the attainment demonstration portion of the Puget Sound area
CO SIP revision as a direct final rule. A detailed rationale for the
action is set forth in the direct final rule. If no adverse comments
are received in response to that direct final rule, no further activity
is contemplated in relation to this proposed rule. If EPA receives
adverse comments, the direct final rule will be withdrawn and all
public comments received will be addressed in a subsequent final rule
based on this proposed rule. EPA will not institute a second comment
period on this document. Any parties
[[Page 38684]]
interested in commenting on this document should do so at this time.
DATES: Comments must be submitted by August 26, 1996.
ADDRESSES: Written comments should be addressed to: Montel Livingston,
SIP Manager, Office of Air Quality (OAQ-107), EPA, 1200 Sixth Avenue,
Seattle, Washington 98101. Documents which are incorporated by
reference are available for public inspection at the Air and Radiation
Docket and Information Center, Environmental Protection Agency, 401 M
Street SW, Washington, D.C. 20460. Copies of material submitted to EPA
may be examined during normal business hours at the following
locations: EPA Region 10, Office of Air Quality, 1200 Sixth Avenue
(OAQ-107), Seattle, Washington 98101; Washington Department of Ecology,
Attention Tami Dahlgren, Olympia, Washington 98504-7600, telephone
(360)407-6830; and the Puget Sound Air Pollution Control Authority, 110
Union Street, Suite 500, Seattle, Washington 98101-2038.
FOR FURTHER INFORMATION CONTACT: William M. Hedgebeth, EPA Region 10,
Office of Air Quality, 1200 Sixth Avenue, M/S OAQ-107, Seattle,
Washington 98101, (206) 553-7369.
SUPPLEMENTARY INFORMATION: See the information provided in the Direct
Final action which is located in the Rules Section of this Federal
Register.
Dated: July 2, 1996.
Chuck Clarke,
Regional Administrator.
[FR Doc. 96-18650 Filed 7-24-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-18648 Illinois; Air Quality Implementation Plans
[Federal Register Volume 61, Number 144 (Thursday, July 25, 1996)]
[Proposed Rules]
[Page 38683]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18648]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[IL114-1-6788b; FRL-5540-9]
Illinois; Air Quality Implementation Plans
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The EPA proposes to approve the State Implementation Plan
(SIP) revision request submitted by the State of Illinois on May 5,
1995, and May 31, 1995, which establishes regulations for motor vehicle
refinishing operations in the Chicago and Metro-East ozone
nonattainment areas. In the final rules section of this Federal
Register, the EPA is approving this action as a direct final rule
without prior proposal because EPA views this as a noncontroversial
action and anticipates no adverse comments. A detailed rationale for
the approval is set forth in the direct final rule. If no adverse
comments are received in response to that direct final rule, no further
activity is contemplated in relation to this proposed rule. If EPA
receives adverse comments, the direct final rule will be withdrawn and
all public comments received will be addressed in a subsequent final
rule based on the proposed rule. Any parties interested in commenting
on this document should do so at this time.
DATES: Comments on this proposed rule must be received on or before
August 26, 1996.
ADDRESSES: Written comments should be mailed to: J. Elmer Bortzer,
Chief, Regulation Development Section, Air Programs Branch (AR18-J),
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604.
Copies of the State submittal are available for inspection at:
Regulation Development Section, Air Programs Branch (AR18-J),
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604.
FOR FURTHER INFORMATION CONTACT: Mark J. Palermo, Regulation
Development Section, Air Programs Branch (AR-18J), Environmental
Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago,
Illinois 60604, (312) 886-6082.
SUPPLEMENTARY INFORMATION: For additional information see the direct
final rule published in the rules section of this Federal Register.
Dated: July 3, 1996.
Valdas V. Adamkus,
Regional Administrator.
[FR Doc. 96-18648 Filed 7-24-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-18532 Financial Responsibility Requirements for Licensed Launch Activities
[Federal Register Volume 61, Number 144 (Thursday, July 25, 1996)]
[Proposed Rules]
[Pages 38992-39021]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18532]
[[Page 38991]]
_______________________________________________________________________
Part III
Department of Transportation
_______________________________________________________________________
Federal Aviation Administration
_______________________________________________________________________
14 CFR Part 440
Financial Responsibility Requirements for Licensed Launch Activities;
Proposed Rule
Federal Register / Vol. 61, No. 144 / Thursday, July 25, 1996 /
Proposed Rules
[[Page 38992]]
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 440
[Docket 28635; Notice 96-8]
RIN 2120-AF98
Financial Responsibility Requirements for Licensed Launch
Activities
AGENCY: Federal Aviation Administration, Associate Administrator for
Commercial Space Transportation, DOT.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Associate Administrator for Commercial Space
Transportation of the Federal Aviation Administration (FAA) currently
prescribes financial responsibility requirements for licensees
authorized to conduct commercial space launch activities on a case-by-
case basis, after analyzing the risks associated with licensed
activities. This proposed rulemaking would codify the Associate
Administrator's approach to implementing these requirements in rules of
general applicability. Specifically, the proposed regulations would
establish how certain risks are allocated among the various launch
participants and addressed through financial responsibility
requirements, including statutorily-based reciprocal waivers of claims.
The proposed regulations would also address eligibility for payment by
the United States Government of certain third-party claims and this
Notice requests comments on appropriate means of implementing this
obligation. The FAA is undertaking this rulemaking initiative to
implement financial responsibility requirements under the Commercial
Space Launch Act of 1984, as amended, codified at 49 U.S.C. Subtitle
IX, ch. 701, Commercial Space Launch Activities.
DATES: Comments must be received by September 23, 1996.
ADDRESSES: Comments should reference the docket number of this notice.
Commenters should mail four copies of any comments to the FAA Rules
Docket, Room 915G, Federal Aviation Administration, U.S. Department of
Transportation, 800 Independence Avenue, SW., Washington, DC 20591.
Persons wishing to receive acknowledgment of receipt of their comments
should include a self-addressed, stamped postcard. Copies of materials
relevant to this rulemaking, including copies of all public comments,
are kept by the Rules Docket Technician, Room 915G, at the above
address. The docket is available for inspection between 8:30 a.m. and 5
p.m., Monday through Friday, excluding Federal holidays.
FOR FURTHER INFORMATION CONTACT: Ms. Esta M. Rosenberg, Attorney-
Advior, Regulations Division, Office of the Chief Counsel, Federal
Aviation Administration, U.S. Department of Transportation, (202) 366-
9305.
SUPPLEMENTARY INFORMATION:
Background
The Commercial Space Launch Act of 1984, as amended (the Act), 49
U.S.C. App. 2601-2623, codified, at 49 U.S.C. Subtitle IX, Commercial
Space Transportation, ch. 701, Commercial Space Launch Activities, 49
U.S.C. 70101-70119, authorizes the Secretary of Transportation to
license and regulate commercial space launches and the commercial
operation of launch sites carried out within the United States or by
its citizens. Among the stated purposes of the Act are protection of
public health and safety, safety of property, and United States
national security and foreign policy interests, as well as ensuring
compliance with international treaty obligations of the United States.
In carrying out the Act, the Secretary is required to encourage,
promote, and facilitate private sector launch activities. Another
objective is to facilitate development of a commercial space
transportation sector that is capable of competing in the international
market. The Secretary's responsibilities under the Act are carried out
by the Associate Administrator for Commercial Space Transportation of
the Federal Aviation Administration (Office). Prior to Fiscal Year
1996, the Secretary's responsibilies were carried out by the Office of
Commercial Space Transportation, located within the Office of the
Secretary of the Department of Transportation (DOT or Department). The
Commercial Space Transportation Licensing Regulations set forth in 14
CFR Ch. III remain applicable to regulatory activities administered by
the Office.
Current Industry Status
The commercial space industry is expanding and experiencing
reinvigorated growth with the creation of new technologies and markets.
U.S. commercial space revenues are estimated at $6.5 billion for 1994
and prospects are positive for continued growth. As a July 15, 1996, 63
DOT-licensed launches that have taken place since the first license was
issued in 1998. Up to three big low earth orbit (LEO)
telecommunications systems and two little LEO systems are projected for
launch this decade, resulting in as many as 40 launches and 275 small
satellites. Many other systems requiring additional launches are being
planned and may increase projected launch rates.
The U.S. commercial launch industry is responding to increasing
demands and heightened international competition with new launch
concepts and innovative partnerships. In addition to conventional
suborbital and orbital launches of expendable launch vehicles (ELVs)
from earth to space, the Office has licensed launches involving a
variety of innovative space transportation technologies including air-
launched rockets and a reentry vehicle system. The Office has also
begun discussions with industry on approaches to evaluating new
reusable launch vehicle and sea-launch technologies. Currently, the
private sector is conducting launch activities at four Federal launch
ranges throughout the United States. Five States--Alaska, California,
Florida, New Mexico, and Virginia--have plans under way for developing
state-sponsored spaceports.
Evolution of U.S. Commercial Space Transportation Policy.
The first ten years of the U.S. commercial launch industry have
been a period of transformation, informed by national policy and world
events.
After passage of the Commercial Space Launch Act of 1984, the
Government instituted policy and legislative initiatives encouraging
commercial launches. Nevertheless, during this time, in the face of
competing federal policies favoring maximum use of NASA's Space
Transportation System and relatively low launch prices for services
offered by the European launch operator, Arianespace, the U.S. private
sector appeared reluctant to commit the resources necessary to compete
for the relatively few launches of commercial satellites then available
in the international market.
The commercial launch services market was altered dramatically in
1986 with the loss of the Space Shuttle Challenger. This event caused
the United States Government to reverse its policy of reducing reliance
on ELVs in favor of the Shuttle. On August 15, 1986, President Reagan
announced a new United States Space Launch Strategy stating that NASA
would ``no longer be in the business of launching private satellites,''
and that the government would be looking to the private sector to
``become a highly competitive method of launching
[[Page 38993]]
commercial satellites'' and ``clear[ing] away the backlog that has
built up during this time when our shuttles are being modified.''
This decision removed the United States Government from direct
competition with private launch services providers and, because the
Challenger accident resulted in a backlog of payloads to be launched
provided a potential market for U.S. launch firms. Shortly thereafter,
the President initiated a comprehensive review of existing space policy
for the purpose of providing a clear, unified statement of policy goals
and directives.
On February 11, 1988, President Reagan issued a directive on
National Space Policy that consolidated and updated previous
Presidential guidance on space activities. The National Space Policy
recognized for the first time a distinct commercial space sector,
alongside the military and civilian government sectors, as an integral
part of an overall national effort to maintain United States space
leadership. Concurrent with release of the National Space Policy, the
Administration announced a fifteen-point Commercial Space Initiative
that reinforced one of the principal objectives of the Act: The
promotion of a robust commercial launch industry. This objective was to
be accomplished by, among other things, instituting a more equitable
allocation of risk between the Government and private sector for
commercial launch activities at Government ranges. This provision of
the initiative consisted of two elements: A United States Government
waiver of claims of property damage to Government property in excess of
DOT-required insurance; and a United States Government waiver of claims
covered on DOT-required insurance when loss of injury results from
Government willful misconduct or recklessness.
Taken together, these policy initiatives created an environment
that became more conductive to private investment in and business
commitments to commercial space launch activities, and Federal agencies
responded accordingly. Agencies operating United States Government
launch facilities developed range support agreements to provide for
commercial use of Government launch property and services in accordance
with the Act. On April 4, 1988, the Office published DOT's Commercial
Space Transportation Licensing Regulations, 14 CFR Ch. III, and on June
22, 1988, issued the first of 33 licenses issued to date.
Policy guidance supplementing the National Space Policy has been
formulated to encourage further growth of private sector space
activities. Most recently, on August 4, 1994, President Clinton
announced a new National Space Transportation Policy reaffirming the
Government's commitment to the commercial space transportation industry
and the Department's critical role in licensing, facilitating and
promoting commercial launch operations. Under this Policy, the
Department, along with the Department of Commerce and other agencies as
appropriate, is charged with developing an implementation plan focusing
on measures to foster an internationally competitive U.S. launch
capability. The Department also ensures that U.S. Government space
technology plans address commercial space launch sector needs.
The 1988 Amendments
General
The Commercial Space Launch Act Amendments of 1988, Public Law 100-
657 (1988 Amendments), replaced very general insurance requirements
with a detailed, comprehensive financial responsibility and allocation
of risk regime for commercial launch activities, including a more
explicit exposition of the United States Government's risk-related
rights and obligations. Reaffirmed, as part of the 1988 Amendments, is
the Department's responsibility to protect United States interests when
Government property or personnel is involved in supporting licensed
activities.
The principal features of the regime include risk-based insurance
requirements, limited Government payment of certain third-party claims,
and reciprocal waivers of liability among launch participants.
Participants in licensed launch activities are protected from
potentially unlimited liability by: (1) requiring the licensee to
provide insurance (or otherwise demonstrate financial responsibility)
based on maximum probable loss determinations that: (a) protects launch
participants, including the United States Government, from third-party
liability (in an amount not exceeding the lesser of $500 million or the
maximum available on the world market at reasonable cost) (49 U.S.C.
70112(a)), and (b) compensates for damage or loss to United States
Government property (in an amount not exceeding $100 million) (49
U.S.C. 70112(a)); and (2) providing for payment by the United States
Government of successful third-party claims up to $1.5 billion in
excess of the required amount of third-party liability insurance,
subject to enactment by Congress of an appropriations law or other
legislative authority (49 U.S.C. 70113(a)(1)). In addition, the goal of
allocating risks and costs associated with licensed activities is met
by requiring participants to enter into reciprocal waivers of claims in
which each party absorbs certain losses it may sustain as a result of
licensed activities. 49 U.S.C. 70112(b). Taken together, these
provisions are intended to achieve a fair allocation among the various
parties, including the United States Government, of the risks attendant
to their involvement in commercial launch activities.
The Office has been implementing the financial responsibility and
allocation of risk provisions of the 1988 Amendments on a case-by-case
basis, consistent with the adjudicatory process established by the
Office in the Commercial Space Transportation Licensing Regulations, 14
CFR Ch. III. Since early 1989, when the first license was issued after
the 1988 Amendments became effective, licenses have included a license
order devoted entirely to insurance and other financial responsibility
requirements that must be satisfied as conditions of each license. As
of July 15, 1996, 63 launches have been conducted pursuant to these
requirements. As a result of this experience, the Office believes that
many provisions included in license orders may be standardized in rules
of general applicability. The specific amounts of required insurance
would be set forth in a license order.
Although requirements would be standardized, licensees may ask for
relief from a particular regulatory requirement by petitioning the
Associate Administrator for Commercial Space Transportation using the
procedures set forth in Sec. 404.3 of the Commercial Space
Transportation Licensing Regulations (14 CFR Sec. 404.3).
Allocation of Risk and Payment of Excess Claims Provisions
The 1988 Amendments focus on two areas of risk allocation: (1)
Protecting the commercial launch industry against catastrophic losses
from third-party liability claims; and (2) limiting possible claims
among launch participants. At the same time, the 1988 Amendments are
directed at minimizing the potential liability of the United States as
a launching state under international law; and protecting the United
States Government, including its agencies, personnel and contractors,
from liability, loss of injury resulting from the Government's
participation in commercial launch activities by providing launch
support to commercial launch services providers.
[[Page 38994]]
This effort to insulate the United States Government and its
agencies, personnel and contractors involved in DOT-licensed launch
activities from a significant measure of exposure to liability, loss or
injury resulting from licensed activities is important because of the
Government's liability exposure. This exposure derives from two
sources. Under international treaty, especially the Treaty on
Principles Governing the Activities of States in the Exploration and
Use of Outer Space, including the Moon and Other Celestial Bodies
(Outer Space Treaty) (entered into force October 1967), and the
Convention on International Liability for Damage Caused by Space
Objects (Liability Convention) (entered into force September 1972), the
United States Government has accepted certain obligations to compensate
parties outside the United States for damage, including personal injury
and loss of life, caused by space objects launched from the United
States or by persons or entities whose activities are supervised or
overseen by the United States Government. In addition, when the
Government is involved in private sector launch activities through use
of its property, facilities, equipment or personnel to support and
facilitate those activities, the United States Government risks damage
or injury to its own property and personnel and legal liability for
other losses. It is the Office's view that, under the 1988 Amendments,
risk for these losses should be allocated primarily to the
nongovernmental launch participants, subject to three important
exceptions, and the statutory requirements for insurance and waivers of
claims must be construed and implemented to effect this allocation of
risk. (The term ``nongovernmental'' is used throughout this discussion
to mean launch participants other than U.S. Government, its agencies,
contractors and subcontractors, and the employees of each.)
The three important exceptions are those risks that the U.S.
Government affirmatively accepts under the Act. They are: (1) The risk
otherwise borne by the U.S. commercial launch industry of catastrophic
losses and unlimited liability associated with commercial launch
activities, up to the statutory limit of $1.5 billion above required
third-party liability insurance, subject to enactment of legislation,
49 U.S.C. 70113(a); (2) the risk of property damage or loss to United
States Government launch property or facilities in excess of required
insurance, 49 U.S.C. 70112(b)(2); and (3) acceptance of liability for
death, bodily injury or property damage or loss that results from the
willful misconduct of the United States Government or its agents, 49
U.S.C. 70112(e).
The Office believes that acceptance of these risks by the United
States Government is necessary in order to accomplish the goals
underlying the 1988 Amendments; that is for the U.S. commercial launch
industry to compete effectively against foreign launch services
providers that offer certain financial assurances from their
governments,\1\ and to limit the amount of liability insurance that
must be obtained to protect launch participants without, in industry's
words, their ``betting the company'' on each launch.
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\1\ At the time the 1988 Amendments were enacted, entrants to
the commercial launch industry expressed deep concern over
potentially open-ended exposure to liability for damages associated
with launch activities that could undermine the position of United
States firms vis-a-vis their foreign competitors. For example, while
customers of Arianespace benefited from full indemnification by the
French Government for all third-party liability that exceeded
required insurance levels of 400 million French francs
(approximately $65 million in 1988), corresponding protection was
not available to customers of emerging commercial launch services
providers in the United States. Consequently, from a commercial
perspective, foreign launch services providers possessed a
significant competitive advantage over U.S. firms.
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Not surprisingly, the linchpin of the allocation of risk regime in
industry's view has been the United States Government's agreement to
protect launch participants against the risk of catastrophic losses and
unlimited liability associated with commercial launch activities.
Pursuant to the 1988 Amendments, the Department seeks to provide this
protection, or so-called ``indemnification,'' by preparing a
compensation plan that the President submits to Congress for review and
approval, and, if necessary, enactment of additional legislative
authority providing for the payment of claims.
Significantly, the 1988 Amendments do not expressly mandate
indemnification of launch participants and, unlike the 1988 Price-
Anderson Amendments. Pub. L. 100-408, the notion of a ``contract of
indemnification'' does not appear. Rather the 1988 Amendments lay out a
mechanism by which Congress may enact legislation to appropriate the
requested funds. Accordingly, it would be inappropriate to refer to the
payment of excess claims provisions without recognizing the role
Congress must play in enacting appropriations. Nevertheless, it is the
Office's view that the 1988 Amendments represent an undertaking by
Congress to allocate to the United States Government the risk of
certain losses, including damage to Government property in excess of
required Government property insurance, and excess third-party claims.
In this manner, commercial launch operators, their customers, and the
contractors and subcontractors of each may be relieved from some of the
risk associated with commercial launch activities. In return, the
United States Government is protected from liability and loss by
required insurance at no cost to the Government
Risk-Based Insurance Requirements
One of the principal features of the 1988 Amendments is the
Department's mandate to establish risk-based insurance requirements.
Under the Act, the amount of required insurance is prescribed based on
the Department's determination of the ``maximum probable loss'' that
would result from licensed activities.
Before enactment of the 1988 Amendments, section 16 of the Act
prescribed general liability insurance requirements. It specified that
any person launching a launch vehicle or operating a launch site under
a license issued by the Department have in effect liability insurance,
at least in the amount that the Department considered necessary for the
licensed launch or operation, considering the international obligations
of the United States.\2\ These obligations include, in particular, any
United States obligations as a signatory to the Liability Convention.
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\2\ Each person who launches a launch vehicle or operates a
launch site under a license issued or transferred under this Act
shall have in effect liability insurance at least in such amount as
is considered by the Secretary to be necessary for such launch or
operation, considering the international obligations of the United
States. The Secretary shall prescribe such amount after consultation
with the Attorney General and other appropriate agencies.'' 49
U.S.C. App. 2615.
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On May 7, 1985, the Office published an Advance Notice of Proposed
Rulemaking on third-party liability insurance requirements for
commercial space launch activities (the ANPRM), 50 FR 19280, focusing
exclusively on implementation issues relating to section 16 of the Act.
The ANPRM reflected the Office's conclusion that liability
insurance should be adequate to compensate parties not participating in
licensed launch activities for losses or damages resulting from those
activities. The Office sought to identify considerations other than
international obligations of the United States to be taken into
account. Other general issues highlighted in the ANPRM were: (1)
Whether evidence of insurance (including significant levels of risk
retention) should be the exclusive
[[Page 38995]]
means of demonstrating financial responsibility; and (2) whether the
Office should require launch services providers to obtain the maximum
amount of liability insurance commercially available at reasonable
rates (the standard employed by NASA in requiring insurance for
commercial payloads launched on the Space Shuttle), or, alternatively,
whether the Office should conduct an analysis of the risks arising from
a launch and set appropriate financial responsibility requirements
based upon that analysis. The ANPRM also sought comments on whether the
Office should vary liability insurance requirements by vehicle class
and the duration of licensed activities, and what factors the United
States Government should consider in deciding whether to seek
compensation from responsible parties for damages for which the United
States may be held liable under United States or international law.
Ten private parties submitted comments in response to the ANPRM.
They included one commercial operator of a privatized United States
expendable launch vehicle (ELV) launch system, three entrepreneurial
launch firms, two space insurance brokers, two government aerospace
contractors, and two law students.
Most of the comments addressed the amount of liability insurance
the Office should require and the appropriate standard for making that
determination. Only three of the commenters, the insurance brokers and
an entrepreneurial launch services provider, supported utilization of
NASA's approach of requiring that launch services providers obtain the
maximum amount of insurance commercially available at reasonable rates.
One insurance broker favored applying this standard to the actual
launch phase only, arguing that risk analysis should be employed in
setting requirements for on-orbit liability coverage. All of the other
launch and aerospace firms that commented favored the risk analysis
approach.
Commenters differed on the issue of duration of required insurance
coverage. One commenter favored requiring coverage only for the launch
phase, another preferred the useful life of a payload, and a third
recommended insurance be maintained as long as a physical object
remains in space. Only two commenters addressed the question of whether
the Office should distinguish among the different ELV launch systems in
setting third-party liability insurance requirements, both favoring
making such distinctions if justified by risk analysis. In addition to
the issues on which the ANPRM requested comment, five commenters argued
that the United States Government should indemnify private launch firms
and their contractors for damages that exceed the amount of required
coverage. One commenter urged that the United States either re-
interpret its responsibilities under, or withdraw from, the Liability
Convention.
Following publication of the ANPRM, and in light of most
commenters' endorsement of insurance requirements based on an analysis
of risk, the Office developed a risk analysis approach to determining
acceptable levels of public exposure to hazards associated with
commercial launches, and it began applying risk analysis techniques on
an application-specific basis. The Office's risk analysis approach was
based upon extensive studies it had conducted on the risks associated
with commercial launches and launch operations, and on the utility of
various analytical techniques for quantifying them. These studies
include a three-volume report, dated May 1988, entitled ``Hazard
Analysis of Commercial Space Transportation'' and an ``Assessment of
Third Party Liability Insurance Associated with Commercial Expendable
Launch Vehicles,'' each of which is available from the Office.
At the time the 1988 Amendments were enacted, the Office was
preparing a rulemaking action to establish risk analysis as the
preferred method for determining appropriate levels of insurance for
licensed activities. The need to propose adoption of this approach
became moot. In requiring maximum probable loss determinations,
Congress effectively codified the Office's approach by mandating risk
analysis as the basis on which the Department establishes required
levels of financial responsibility under the Act.
This rulemaking is intended to provide definition to the statutory
term, ``maximum probable loss,'' in terms of the Office's approach to
prescribing insurance requirements for each launch license issued.
``Maximum probable loss'' does not mean maximum possible loss, that is,
a ``worst case'' scenario regardless of likelihood. The Office
determines maximum probable loss for licensed launch activities by
analyzing the known hazards, and the probability of loss, associated
with specific launch activities. A detailed explanation of maximum
probable loss methodology is presented in the section-by-section
analysis below.
Implementation Issues Following the 1988 Amendments
In early 1989, the Risk Management Working Group of the Commercial
Space Transportation Advisory Committee (COMSTAC) \3\ developed
implementation positions on the 1988 Amendments, including a
recommendation that the scope of required liability insurance coverage
be commensurate with the scope of potential liability of those persons
involved in providing launch services--the licensee, its customer, the
U.S. Government, and the contractors and subcontractors of each--
resulting from activities carried out under the license. In its view,
potential liability arose with the licensee's entry upon the launch
complex. Additionally, the waiver of claims provisions and the so-
called ``indemnification'' provisions of the Act were viewed as being
equally broad in scope. The COMSTAC further recommended that post-
launch protection under the Act remain in place for at least three
years following ignition of the launch vehicle for flight.
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\3\ The COMSTAC, a duly chartered federal advisory committee
consisting of public and private sector representatives appointed by
the Secretary to advise on matters affecting the commercial space
transportation industry, has taken a very active role in reviewing
and commenting on the Office's implementation of the 1988
Amendments. Based on its reviews, the COMSTAC submitted formal
recommendations to the Secretary. These recommendations are
available in the docket for this proposed rulemaking.
---------------------------------------------------------------------------
In carrying out its licensing responsibilities, the Office began
issuing licenses in 1989, authorizing a specific launch and preparatory
launch site operations associated with the conduct of that launch. This
approach was intended to satisfy industry's expectations, including
those voiced by COMSTAC, and be consistent with the Department's
understanding of the 1988 Amendments. Within two years, the Office
issued the first of several operator licenses issued to date. Under
this approach, the Office licensed and established financial
responsibility requirements for site operations associated with the
conduct of a program of commercial launches for a two-year period.
This approach to licensing reflected an understanding between the
Office and the U.S. Air Force, as the Department of Defense (DOD)
element responsible for management of the Eastern Range, encompassing
Cape Canaveral Air Station, and the Western Range, encompassing
Vandenberg Air Force Base, to avoid conflicting insurance and liability
requirements when commercial launch operators
[[Page 38996]]
conduct operations on Air Force ranges in support of commercial launch
activities under a range use agreement. Despite this understanding with
the Air Force, certain questions remain between the Office and the Air
Force as well as other Federal agencies that operate and manage Federal
range facilities.
A September 1992 COMSTAC resolution reaffirmed COMSTAC's view that
the financial responsibility regime should be construed broadly so as
to cover all activities conducted by a licensee on a Federal range.
Under this view, referred to as ``gate-to-gate'' licensing, all of a
licensee's activities conducted on a Federal range in support of its
commercial launch operations would be subject to DOT-determined
financial responsibility requirements and eligibility for so-called
indemnification. To address this and other uncertainties associated
with the intended scope of the 1988 Amendments, the resolution
recommended that the Department seek clarification by legislative
means.
October 27-28, 1994 Public Meeting
The Office convened a two-day public meeting on October 27-28,
1994, to elicit industry views on, among other things, a range of
issues associated with implementation of the 1988 Amendments. The
meeting concentrated on licensing issues associated with commercial
launch operations and the commercial operation of launch sites. One of
the focal points of the meeting was a discussion of the appropriate
scope of a license authorizing commercial launch activities and its
relationship to financial responsibility and allocation of risk
requirements.
At the public meeting and in written comments submitted to the
docket, industry remained fairly consistent in its view that the
Office's licensing authority should be broadly construed to address
risks associated with the flight of a launch vehicle and pre-flight
hazardous operations in order to protect public health and safety. One
commenter suggested that, as a starting point, it would be useful to
look at those unusually hazardous activities for which the Government
agrees to offer indemnification under other authority, such as Public
Law 85-804, in attempting to determine the range of activities properly
encompassed by the Department's licensing authority.
Two launch services providers and one DOD element commented that
all pre-launch processing on a Federal range should be licensed for
purposes of the Act's financial responsibility requirements and setting
the levels of required insurance. Other commenters observed that it is
no longer sufficient to limit DOT licensing to activities done on a
Federal range because, increasingly, launch operators are engaging in
hazardous pre-launch processing activities off the range, either to
reduce their costs or because they are not permitted to use Government
facilities where comparable, off-range commercial services exist. A
number of commenters, including a DOD element, an insurance broker, a
prospective commercial spaceport operator and two launch services
providers, suggested that DOT-licensed activities should include
hazardous, as distinct from ultra-hazardous, operations defined in
terms of risk, not geography, because the Office's mandate is
protection of public safety. The prospective spaceport operator also
suggested using the license as a kind of safety net to avoid gaps in
regulatory oversight. In contrast, another Government agency
representative offered a different approach, noting that other
regulatory regimes would apply to hazardous operations when conducted
somewhere other than at a Federal range.
As an example of hazardous operations requiring licensing, a number
of commenters, including a payload processing facility, stated that
payload processing, whether conducted on a Federal range or at a
privately operated facility located off the Federal range, should be
covered by a DOT license. One launch company noted that manufacturing
is not sufficiently hazardous as to warrant DOT licensing, but certain
testing is. However, a prospective spaceport operator noted that
manufacturing may be hazardous and, if so, should be covered by a DOT
license. Another prospective spaceport operator stated that licensing
matters should be separated from the issue of indemnification
altogether, and noted that one could conceive of licensed activity
without indemnification if the purpose of licensing is protection of
public safety. The commenter suggested a narrower approach than that of
licensing all activities conducted by a launch licensee on a Federal
range, noting that material may be stored at the range for a long time
in advance of a scheduled launch.
Two DOD elements advocated that the Office establish maximum
probable loss requirements for all commercial activities conducted on a
Federal range facility. One of the agencies also indicated that the
Office should set maximum probable loss requirements any time
Government property would be placed at risk for commercial purposes,
including coverage for commercial development and demonstration
activities conducted on a Federal range.
One launch services provider noted the benefits to the public of
requiring statutory financial responsibility and allocation of risk
requirements, along with so-called indemnification, in that third-party
recovery for losses need not depend upon the financial health of a
launch company. For example, without Government regulation, small
start-up companies with limited financial means might buy less
insurance than the Office would otherwise prescribe in insurance
requirements.
Another launch services provider noted that the financial
responsibility requirements should be coextensive with a license. That
is, the Government should provide indemnification to the extent
activities are covered by a license. Likewise, according to the launch
services provider, if there is no indemnification offered by the
Government for an activity then it can be inferred that the Office has
not licensed that activity. The commenter noted that this is not clear
today.
In a related rulemaking, the Office is planning to address, more
specifically, such issues as the appropriate scope of a license to
conduct commercial launches and the activities subject to the
Department's licensing authority. As part of that rulemaking, the
Office intends to address comprehensively those comments received at
the public meeting concerning the appropriate scope of a license and
licensable activities. The instant rulemaking focuses on implementation
of financial responsibility requirements and the allocation of risks
that attend licensed launch activities, as those activities are defined
in a license issued by the Office.
The Proposed Regulations
Scope and Objectives
The proposed regulations are intended to implement the full range
of statutorily-imposed financial responsibility requirements and carry
out the Department's responsibility under the Act to protect U.S.
interests when Government property or personnel is involved in
supporting licensed launch activities. The proposed regulations also
clarify the means by which the commercial launch industry and its
customers are provided with the assurances and protections that have
been considered critical to their survival.
This rulemaking does not address financial responsibility
requirements for the operation of a launch site. To date, all U.S.
commercial launches have taken place from U.S. Government facilities.
[[Page 38997]]
The Office believes that this fact will change in the not too distant
future. Plans for developing state-sponsored spaceports in five states
are under way and the Office is currently developing regulations that
would apply to prospective applicants for licenses to operate launch
sites or spaceports. The Office is also in the process of developing
policies applicable to the appropriate implementation of financial
responsibility requirements for launch site operators, including
spaceports, consistent with the Act. As part of this effort, the Office
requests comments on the full range of financial responsibility and
risk allocation issues associated with licensing the operation of a
launch site.
More specifically, under the Act, a licensee is required to obtain
two forms of insurance (or otherwise demonstrate financial
responsibility) to compensate for certain claims ``resulting from an
activity carried out under the license''--liability insurance that
protects participants in launch services from third-party liability and
property insurance that protects Government property. 49 U.S.C.
70112(a). No distinction is made in the Act between the holder of a
license to launch a launch vehicle and the holder of a license to
operate a launch site. As one commenter pointed out at the October 1994
public meeting, the legislative history accompanying the 1988
Amendments provides no guidance as to whether, or how, financial
responsibility and allocation of risk requirements would apply to a
licensed operator of a launch site.
One view under consideration by the Office is that the insurance
that is required under a license to conduct licensed launch activities
would be sufficient to protect United States interests as well as those
of a licensed launch site operator. This view presumes that the
potentially catastrophic risks that the 1988 Amendments intended to
address are those associated with hazardous launch operations, and that
the risks attendant to the industrial activity of managing a launch
site can be managed effectively through available industrial risk
insurance as a cost of doing business, and through contractual
agreements between the site operator and its customers and contractors.
Risks to the launch site operator change when licensed launch
activities are conducted at the site, and the launch site operator
should be protected as an additional insured under the launch
licensee's liability policy because of the launch site operator's
involvement in launch services. With respect to risks associated with
other activities, a launch site operator can protect itself by
requiring adherence to its own safety procedures and requirements and
through business decisions regarding the need to obtain insurance.
At the public meeting, one commenter representing a prospective
spaceport licensee suggested an approach consistent with this view. The
commenter noted that site operations not related to a particular launch
may not be covered by the Act, and that the launch operator and launch
site operator, rather than the Office, can allocate responsibilities
between themselves. Launch-specific activities carried out at the site
would be covered under the Act, in the commenter's view. However,
another commenter at the public meeting noted that a state-sponsored
spaceport could serve a consortium of commercial users, and the
relationship between them may not be one of prime contractor and
subcontractor. Another prospective state-sponsored spaceport
representative commented that there is no need for the Office to
license a spaceport operator if it is under the supervision and
oversight of another Federal agency, such as the Air Force, and
conducting operations as a subcontractor to the launch company.
Similarly, a DOD element commented that the Office should review safety
operations of a state-sponsored spaceport located on a Federal range
facility only for purposes of determining maximum probable loss.
Additional comments are solicited on the appropriate implementation
of the financial responsibility and allocation of risk regime with
respect to licensed launch site operators, including state-sponsored
spaceports. Comments should address the requirements that would apply
to an operator of a commercial launch site located on private property
and that located on or adjacent to a Federal range facility.
Implementation by the Office of the financial responsibility and
allocation of risk requirements through license orders has resulted in
some uncertainty and controversy over the scope of required insurance
as well as the Government's obligation to cover excess third-party
claims. Some issues result directly from the terminology used in the
Act and have been voiced by both the Office and industry in a variety
of fora, such as the October 1994 public meeting and COMSTAC meetings.
Others have been aired by industry, from time to time, expressing
disagreement with or concern over the Office's implementation of the
requirements. In come instances, industry has offered a view contrary
to that held by the Office, as reflected in license orders. In others,
industry has complained that lack of clarity leaves both industry and
the U.S. Government vulnerable to unintended disputes over the
appropriate mechanism for compensating claims.
The proposed regulations, as well as the Act, acknowledge that the
commercial space industry must bear certain risks and costs associated
with launch activities. However, the Office believes these risks and
costs to be reasonable in light of the potential benefits industry
receives.\4\ Moreover, the Office believes that issuing regulations
will result in an additional benefit to the commercial space industry.
That is, the increased certainty and clarity that will result from
issuance of final regulations should prove beneficial to industry by
allowing it to manage risks appropriately, through insurance and other
business decisions and compete effectively in an increasingly
competitive world market. At the same time, the Office remains mindful
of the Government's unique interests and concerns.
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\4\ An economic impact assessment has been prepared and is
available in the public docket for this proposed rulemaking for
review and comment.
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In addition to protecting the United States Government from certain
liability risks, this rulemaking proposal also recognizes the
importance of valuable national range assets to the continued growth,
vitality, viability and competitiveness of the U.S. commercial launch
industry. One of the principal objectives of the statutory requirements
is to ensure that these assets are protected, and that in the event of
damage or loss, funds are available to restore the affected launch
property to its present condition and use. Thus, when Government
facilities or personnel are involved in licensed launch activities, the
Department is authorized to establish requirements for proof of
financial responsibility and other assurances necessary to protect the
Government and its executive agencies and personnel from liability,
death, bodily injury, or property damage or loss as a result of
licensed activities. However, the Government is not relieved of
liability that results from willful misconduct of the Government or its
agents.
In protecting the interests of Government personnel, the statutory
financial responsibility and allocation of risk requirements also
recognize the role Government contractors and subcontractors, and their
respective employees, perform in supporting commercial launch-related
operations on Federal range facilities on behalf of
[[Page 38998]]
the Government. For this reason, in establishing financial
responsibility and allocation of risk requirements, the Department also
ensures that their interests are protected. The Office solicits views
on whether its approach to protecting Government contractors' and
subcontractors' interests should be adopted in a final rule.
To facilitate the reader's review of this proposal, the Office's
rationale for allocating and addressing certain risks is presented
below under appropriate topic headings, preceding the section-by-
section analysis. This approach should prove useful to the reader in
understanding how certain risks would be addressed through both the
required demonstration of financial responsibility and waivers of
claims among the launch participants. The section-by-section analysis
that follows describes and discusses specific provisions of the
proposed implementing regulations which, taken together, effectuate the
intent of the Act.
Protection of Government Personnel
In providing direct support for commercial launch operations,
either through its agencies or contractors, the U.S. Government
necessarily exposes itself and certain Government personnel to
potential losses and liabilities. Accordingly, under the approach the
Office has adopted in the proposed regulations, certain Government
personnel need to be afforded a variety of protections through the
financial responsibility and allocation of risk regime. These
protections are necessary to ensure that the U.S. Government does not
bear any greater risk than it affirmatively accepts under the statute.
Through the proposed regulations, risks to Government personnel,
including employees of Government contractors and subcontractors, posed
by their involvement in licensed launch activities are addressed as
follows:
1. Government personnel, including employees of the Government, its
agencies, and its contractors and subcontractors, involved in licensed
launch activities, would be included within the definition of third
parties.
2. Government personnel, including employees of the Government, its
agencies, and its contractors and subcontractors, involved in licensed
launch activities, would be named as additional insured under the
required third-party liability policy.
3. Claims for damage or loss to property belonging to the
Government, its agencies, contractors and subcontractors, involved in
licensed launch activities, would be covered under the required
Government property policy, even if the damage or loss is caused by
Government personnel, including employees of the Government, its
agencies, and its contractors and subcontractors, involved in licensed
launch activities, absent their willful misconduct.
These three forms of protection from risk are explained below, in
order.
1. The proposed regulations would clarify that Government employees
are included within the definition of third parties. This is
significant because it means that Government employees' claims for
property damage or bodily injury would be compensated under the third-
party liability insurance policy (or other demonstration of financial
responsibility) required of the licensee up to the limit the Office
establishes, within the statutory ceiling, based upon the Office's
determination of maximum probable loss. (An explanation of the Office's
risk-basing methodology for setting insurance requirements is set forth
in the section-by-section analysis, below.)
The definition of third parties would also include employees of
U.S. Government contractors and subcontractors involved in licensed
launch activities to ensure that their claims would also be covered by
the required third-party liability insurance policy, in accordance with
the statue.
This approach is in accord with the definition of ``third party''
contained in the statute, 49 U.S.C. 70102(11), and the legislative
history which expressly states that ``Government personnel directly
associated with the commercial launch operations are still classified
as third parties.'' S. Rep. No. 100-593, 100 Cong., 2d Sess. 8 (1988).
This protection is necessary to minimize the risk the U.S. Government
would otherwise bear if it were to accept responsibility for these
claims under the Act.
Currently, through a reciprocal waiver of claims agreement executed
by the Office on behalf of the U.S. Government, the United States
waives and releases claims it may have against the licensee and
customer and their respective contractors and subcontractors, and
agrees to be responsible, for property damage it sustains in excess of
required insurance, and for bodily injury or property damage sustained
by its employees in excess of required insurance. \5\ The Government is
required to extend this waiver of claims and assumption of
responsibility to its contractors and subcontractors. This practice
would be altered under the proposed regulations in the following way.
Because claims of Government employees and employees of Government
contractors and subcontractors against the other launch participants
would be covered as third-party claims under the liability insurance
policy that the licensee obtains, the U.S. Government would not be
required to assume responsibility for them as part of the reciprocal
waiver of claims required in 49 U.S.C. 70112(b)(2). This approach
deviates from the current practice of the Office but, we believe, more
precisely reflects the intent of the statute.
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\5\ The reciprocal waiver of claims agreement is used by the
Office to implement the Government's statutory responsibility to
waive claims. 49 U.S.C. 70112(b)(2) requires a Government waiver
only to the extent claims exceed the amount of insurance that is
required to protect Government property. However, under current
practice, the agreement provides that claims for injury or losses
suffered by employees of the Government are waived only to the
extent those claims exceed the required amount of third-party
liability insurance. One reason the Office has taken this approach
is that if Government employee claims for bodily injury or property
damage were compensated under the property policy rather than the
liability policy, the Government's waiver of claims for property
damage could be triggered too soon leaving Government claims for
property damage or loss uncompensated.
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Given that Government personnel are deemed third parties, their
claims against the other launch participants would be presented as part
of the successful third-party claims for which industry would seek
payment from the Government under the payment of excess claims
provision of the statute (so-called ``indemnification''). In essence,
the Government's agreement to protect launch participants from third-
party claims in excess of required insurance would extend to cover the
outstanding claims of its employees, and Government contractor and
subcontractor employees, after the limits of the insurance policy
obtained by the licensee have been reached.
An alternative view--that Government personnel should not be
considered third parties--has been suggested by representatives of the
commercial space launch industry. This view suggests that the 1988
Amendments assigned to the United States Government an assumption of
responsibility and risk for losses sustained by Government personnel,
including Government employees and employees of Government contractors
and subcontractors, who are involved in licensed activities. This
assumption of risk would be in addition to the three areas of risk the
Government has agreed to accept under the Act, as delineated above. The
Office does not agree.
Considering Government personnel as third parties enables their
claims to be covered by required third-party liability insurance under
49 U.S.C.
[[Page 38999]]
70112(a)(3)(A)(i). Absent this protection for Government employees, the
Government would be assuming an unfunded contingent liability for the
successful claims of Government employees against other launch
participants, without explicit statutory authority for doing so. This
is contrary to appropriations laws. The Office does not believe that
explicit statutory authority is provided by the Government waiver of
claims provision of the Act, which limits the Government's waiver to
excess property damage claims. 49 U.S.C. 70112(b)(2). Absent this
protection for employees of Government contractors and subcontractors,
additional costs to protect Government contractors and subcontractors
from these risks would likely be passed to the Government, defeating
the statutory directive to protect the Government from certain
liability risks, at no cost to the Government.
In the Office's view, this approach is beneficial to both the U.S.
Government and nongovernmental launch participants. Nongovernmental
launch participants are protected from claims by Government personnel,
including employees of the Government's contractors and subcontractors,
for loss of injury, by means of required liability insurance and
procedures for U.S. Government payment of excess third-party claims, up
to $1.5 billion above the required amount of liability insurance. The
U.S. Government is protected in the event its personnel, as well as
those operating on behalf of the Government, are exposed to risk of
property damage or bodily injury because their claims will be
compensated under the liability policy the licensee obtains at no cost
to the Government. Considering Government personnel as third parties is
not intended to supplant the individual rights of Government employees
to file claims under the Federal Employees' Compensation Act (FECA), or
the rights of Government contractor employees under workers
compensation laws.
2. Government personnel would be protected from third-party
liability, absent their willful misconduct. The statute explicitly
requires that the Government, ``executive agencies and personnel,
contractors, and subcontractors of the Government'' be protected under
an insurance policy required under section 70112(a), ``to the extent of
their potential liability for involvement in launch services, at no
cost of the Government.'' 49 U.S.C. 70112(a)(4). Therefore, under the
liability policy, Government personnel are both protected parties, or
additional insureds, and potential claimants.
3. Under the property policy required under 49 U.S.C.
70112(a)(1)(B), United States Government property is protected from
damage from any source as a result of licensed activities, that is,
even if the damage is caused by Government personnel, absent their
willful misconduct.
Property Protection for Government Launch Participants
In addition to protection from third-party liability, as explained
above, Government launch participants are protected from the risk of
their own property losses where their property, facilities, equipment
or personnel, are used to support commercial launch operations. In the
Office's view, this risk is allocated primarily to the licensee, who is
required under 49 U.S.C. 70112(a)(1)(B) to obtain liability insurance
(or otherwise demonstrate financial responsibility), up to the $100
million statutory ceiling, to compensate for the maximum probable loss
from claims by the U.S. Government against a person for damage or loss
to Government property resulting from an activity carried out under the
license. The Government waives claims for property damage to the extent
those claims exceed the required amount of insurance or result from
willful misconduct of the government or its agents.
This requirement to protect Government property addresses an
important objective--to assure that facilities used by commercial
launch operators can be restored promptly to current launch-ready
status. These facilities are considered critical to U.S. national
security interests and funds must be readily available to repair them
in the event they are damaged as a result of commercial launch
activities.
Two recurring issues are the scope of Governmental property that
must be protected by property insurance and the extent to which
Government property that is either on a Federal range but not used to
support a licensee's launch, or off the Federal range entirely, is
required to be covered by insurance. Government property on a Federal
range that is not used for commercial launch support purposes may
include anything from a U.S. Post Office to launch vehicles or
components that are intended for use exclusively in Government launch
operations.
The Office's view is that any U.S. Government property that is on a
Federal range facility is exposed to damage or loss as a result of
licensed launch activities conducted on that facility. Accordingly,
coverage for all such property must be provided to ensure the U.S.
Government is fully compensated. The only exception would be for a
Government payload where the Government is the customer for the
licensed launch activity. (A discussion of how different types of
Government property on a Federal range facility are considered in
establishing insurance requirements for Government property is
presented in the section-by-section analysis accompanying proposed
Sec. 440.7, Determination of Maximum Probable Loss.)
It is also the Office's view that Government range facility assets
that are not on the launch facility from which the launch takes place,
but are identified as being exposed to damage or loss as a result of
licensed launch activities, should also be covered by the required
property insurance. For example, a licensed launch at Cape Canaveral
Air Station, Florida, could expose Government assets on neighboring
Kennedy Space Center (KSC) to damage or loss. Under the proposed
regulations, the Office would include these assets in determining
appropriate insurance levels for Government property and prescribe that
property at KSC be covered. The Office believes that this approach is
necessary and reasonable to carry out the statutory mandate of
protecting Government range assets exposed to risk from commercial
launch activities. Similarly, a licensed launch conducted at a
commercially operated launch site or spaceport situated on, or adjacent
to, a Federal range facility, would expose the Federal range facility
to risk of damage or loss. Accordingly, insurance to protect the
Federal range facility placed at risk would be required even if there
were no Government involvement in supporting licensed launch activities
conducted at the commercial launch site.
In the Office's view, Government property that is involved in
licensed launch activities but is located at a site that is remote from
the launch site would be covered by the third-party liability insurance
protection required of the licensee because risk to that property
should be no greater than the risk posed to other third-party property.
Government property meeting this description would include, for
example, remote Government tracking stations and other support
facilities located downrange from the Federal range facility at which
the launch takes place.
Accordingly, Government property that is not located on the Federal
range facility from which the launch takes place or not located at a
neighboring
[[Page 39000]]
Federal range facility would be included under the third-party
liability insurance protection required of the licensee. This would
include any unrelated Government property located outside of a Federal
range facility, such as a U.S. Post Office building.
It has been suggested that the additional cost of covering all
Government property, wherever located, would be prohibitive. However,
the Office views the U.S. Government as situated similarly to any other
third party for purposes of calculating maximum probable loss for
property damage claims off the range, subject to the limited exception
noted above for nearly Federal range facility assets located in close
proximity to, or adjacent to, a Federal range. This is because the
probability of damaging unrelated government property away from the
launch site is no different from that of damaging private property off
the launch site. The Office does not believe that this coverage should
increase the cost of liability insurance or expand the risks covered by
the policy.
In summary, all Government property on a Federal range facility,
whether or not involved in licensed launch activities, must be covered
by the required Government property insurance policy (or other
demonstration of financial responsibility). Federal range facility
assets adjacent to or in close proximity to the launch site where
licensed launch activities take place would also be covered by required
property insurance. Government property located away from the Federal
range facility that is used to support licensed launch activities, such
as downrange tracking stations, are not covered by the required
Government property insurance policy, nor is Government property that
is located off the Federal range facility and totally unrelated to
licensed launch activities. Instead, with respect to these Government
assets, the Government is a third party and its claims for loss or
damage would be covered under the required third-party liability
insurance policy (of other demonstration of financial responsibility),
up to the limits required by the Office.
Some of the confusion surrounding the required coverage of
Government property results from the manner in which licensees have
satisfied the financial responsibility requirements for protecting
Government property. Some licensees have obtained two types of policies
to address Government property. One policy typically provides coverage
for United States Government property, including property of United
States Government contractors and subcontractors, that the licensee
utilizes or otherwise has in its care, custody or control at the site
where licensed launch activities take place. The second policy provides
third-party liability coverage for all other property, including
Government property located elsewhere on the Federal range facility. In
the first policy, the United States and its contractors and
subcontractors are the named insureds; in the second policy, the
additional insureds are the same parties as those protected in
satisfying the third-party liability insurance requirement. This
approach accommodates certain customary insurance practices in covering
property losses but is not required by the Office.
However, where a licensee elects to protect certain Government
property under its third-party liability insurance policy, coverage
cannot be allowed to limit or dilute the availability of insurance
proceeds to cover third-party liability claims. To avoid this
possibility, some licensees have submitted a liability insurance
certificate indicating two levels of coverage, i.e., one amount to
cover claims for damage to Government property that is not in the
licensee's care, custody or control and another amount for ``other'
third-party liability, claims.
The proposed regulations would continue the Office's current
practice, implemented through license orders, of requiring coverage for
property of Government contractors and subcontractors under the
Government property policy. The Office's rationale for doing so
includes the following considerations. Absent certain protections for
Government contractors and subcontractors, the Government would bear
greater risk and incur greater expense than is contemplated under the
statute's risk and incur greater expense than is contemplated under the
statute's risk allocation regime. Section 70112(b)(2) of the Act
requires the Secretary of Transportation to enter into reciprocal
waivers of claims under the licensee, its customer, and the contractors
and subcontractors of each, ``for the Government, executive agencies of
the Government involved in launch services, and contractors and
subcontractors involved in launch services. * * *'' The waiver applies
only to the extent that claims are more than the amount of Government
property insurance or other demonstration of financial responsibility
required under 49 U.S.C. 70112(a)(1)(B). By waiving claims ``for'' its
contractors and subcontractors involved in launch services, the
Government passes certain rights and responsibilities to its
contractors and subcontractors, consistent with those the Government
accepts, including the waiver of claims for property damage above
required insurance. In light of the waiver the Government undertakes on
behalf of its contractors, the Government would necessarily assume
greater risk or costs if the Government's contractors and
subcontractors were not also protected by required Government property
insurance. If there were no insurance protection provided by the
licensee for property of Government contractors and subcontractors
involved in launch services, those parties would be likely to seek
compensation for their losses from the Government. Thus, the Government
would be accepting the risk of property losses in excess of required
insurance, plus, ad a practical matter, responsibility for property
losses incurred by its contractors and subcontractors. Alternatively,
Government contractors and subcontractors could purchase property
insurance protection, as a licensee has suggested; however, the cost
would likely be passed through to the Government as an allowable cost
under a contract with the Government. This is contrary to the statutory
directive that the Government be afforded certain protections at no
cost to the Government.
In determining to adopt this approach in the proposed regulation,
the Office also considered whether coverage for property of Government
contractors and subcontractors could be provided under the third-party
liability insurance protection the licensee is required to obtain. This
approach is contrary to the definition of ``third party'' contained in
the statute at 49 U.S.C. 70102(11) and was not further considered.
There is one important distinction in the requirement to protect
property of Government contractors and subcontractors in the Office's
view, however. That is, with respect to the Government and its
agencies, all Government property on a Federal range facility must be
protected. With respect to Government contractors and subcontractors,
only property on a Federal range facility belonging to those
contractors and subcontractors involved in licensed launch activities
must be covered under the property policy. Government contractors and
subcontractors that do not support licensed launched activities or
whose property is located away from a Federal range facility would be
protected as third parties under the liability policy, and their claims
for injury, damage or loss would be compensated by the required third-
party liability policy. For
[[Page 39001]]
example, a food concessionnaire located on a Federal range facility
would be considered a third party for purposes of insurance and risk
allocation.
One licensee has noted its disagreement with the Office's
requirement. In the licensee's view, requiring this coverage is
contrary to the statute and legislative history. The licensee has
sought clarification of the Office's requirements to avoid the
potential for duplicative, or possibly unnecessary, coverage under the
liability and property policies.
The Office disagrees with the licensee's contention for the reasons
explained above. The U.S. Government utilizes contractors and
subcontractors in carrying out certain activities at Federal range
facilities. Accordingly, for purposes of risk allocation and protection
of the U.S. Government, its contractors and subcontractors stand in the
shoes of the Government and its agencies involved in launch services.
The Office believes that any other view would defeat reasonable
implementation of the Amendments.
The Office believes that a variety of risk management approaches to
protecting Government property may be acceptable as long as the
statutory objectives are achieved; that is, providing for the
compensation of property damage sustained by the United States, its
agencies involved in launch services, and its contractors and
subcontractors, resulting from activities carried out under the license
and ensuring that policy proceeds will be made available to the
Government to effect needed repairs in the event of any damage
resulting from licensed launch activities. These objectives can best be
met through a non-fault, non-subrogation, comprehensive all-risk type
of property policy that would compensate the U.S. Government on behalf
of itself and Government launch participants, as additional insureds,
in the event of any occurrence resulting in property damage, regardless
of fault, absent willful misconduct by the Government or its agents. In
order to satisfy statutory objectives, the policy must respond to
damage caused by Government launch participants, as well as Government
personnel, i.e., employees of the Government and its contractors and
subcontractors. An exception may be allowed where insurance is not
available because of a policy exclusion that is determined by the
Secretary of Transportation to be usual for the type of insurance
involved. In those instances, the Secretary, following consultation
with other interested Federal agencies, may waive claims for property
damage from the first dollar of loss. In all other circumstances,
coverage must be provided to protect U.S. Government property from any
damage incurred during or as a result of licensed launch activities,
regardless of fault, absent willful misconduct by the Government or its
agents.
Government Customer
When the licensee's customer is a United States Government agency,
the agency is treated the same as any nongovernmental customer for
purposes of determining the appropriate amount of property insurance
required of the licensee and in terms of the U.S. Government's waiver
of claims or property damage or less above the required amount of
property insurance under 49 U.S.C. 70112(b)(2). That is, a Government
payload is not covered by the required Government property insurance
and the United States Government agency-customer accepts responsibility
for property damage to the payload. For other purposes, the government
agency customer is an agency of the United States involved in licensed
activities. This is an important distinction because employees of a
U.S. Government agency are third parties and their claims against other
launch participants for bodily injury or property damage are covered by
the third-party liability policy required under 49 U.S.C.
70112(a)(1)(A), even when the agency that employs them is involved in
the launch as the customer. The basis for the Office's distinction is
grounded in appropriations law. An agreement on the part of the United
States Government to be responsible for claims of its employees for
injury or damage from the first dollar of loss, other than employee
claims compensated under FECA, would be an unfunded contingent
liability which, in the Office's view, is not statutorily sanctioned.
Rather, through statutorily-mandated insurance insurance protections,
waiver of claims requirements and payment of excess claims provisions,
Congress has limited the unfunded contingent liability the U.S.
Government may accept. The Office believes its approach to protecting
the U.S. Government when it is a customer of commercial launch services
providers is consistent with the limit of risk the Government has
agreed to accept under the statute.
To summarize the Office's view of the statutor
FR Doc. 96-18532 Financial Responsibility Requirements for Licensed Launch Activities
y allocation of risk
regime, whereas nongovernmental parties involved in licensed launch
activities accept responsibility for property damage or loss they
sustain and for injury or loss sustained by their employees, the United
States Government is covered on both accounts by insurance secured by
the licensee. Should the loss exceed the amount of required insurance
that a licensee has secured to cover such claims, then the Government
assumes responsibility for loss of or damage to its property (and
property of its contractors and subcontractors) in accordance with
required reciprocal waivers of claims under 49 U.S.C. 70112(b)(2).
Should the loss exceed the required insurance a licensee has secured to
cover third-party liability, then the Government, in effect, assumes
limited responsibility for losses above that amount sustained by
Government personnel by agreeing to pay excess third-party claims. At
the same time, nongovernmental parties are effectively protected from
claims for Government property losses by required insurance and the
Government's waiver of claims in excess of insurance; and from third-
party claims, including claims of Government personnel, by required
liability insurance and by procedures for U.S. Government payment of
third-party claims up to $1.5 billion in excess of insurance.
Section-by-Section Analysis
Part 440, Subpart A--Financial Responsibility for Licensed Launch
Activities
Section 440.1--Scope; Basis
Proposed Sec. 440.1 identifies the activities to which the Office's
proposed financial responsibility and allocation of risk requirements
would apply as all commercial space launch activities that are
authorized to be carried out under a launch issued by the Office.
Section 440.3--Definition
Section 440.3 defines terms used in part 440 that are not otherwise
defined in 14 CFR Ch. III. Terms defined in Sec. 401.5 of the
Commercial Space Transportation Licensing Regulations have the same
meaning for purposes of this part unless otherwise indicated. Some of
the terms, as defined in the proposed regulation, are self-explanatory
and required no additional elaboration. Other terms are discussed
below.
The term ``contractors and subcontractors'' is defined in this
section to address parties intended to be covered by the phrase
``contractors and subcontractors involved in launch services'' in 49
U.S.C. 70112 and 70113. This is important because these contractors and
subcontractors have certain responsibilities and enjoy certain benefits
under the statute relating specifically to the requirements
[[Page 39002]]
for insurance (or other form of financial responsibility), reciprocal
waivers of claims and the U.S. Government's payment under certain
circumstances of successful third party claims in excess of required
liability insurance.
As used in the Act, the term ``contractors and subcontractors'' is
generally modified by the phrase, ``involved in launch services.'' The
term ``launch services'' is defined by the Act to include ``(A)
activities involved in the preparation of a launch vehicle and payload
for launch; and (B) the conduct of a launch.'' 49 U.S.C. 70102(5). When
this term is coupled with ``contractors and subcontractors'' for
purposes of sections 70112 and 70113 of the statute, a literal reading
could narrowly limit the group of covered contractors and
subcontractors to service providers involved strictly in on-site launch
preparatory and support activities. The Office does not believe that
this interpretation is consistent with the overall objective of the
financial responsibility and payment of excess claims provisions of the
statute, which is to ensure financial protection and an equitable
sharing of risks among the parties exposed to potentially catastrophic
losses from a launch accident. The group of covered parties should not
be limited only to the most obvious and visible launch participants
that are engaged in preparing the launch vehicle and payload for launch
and conducting the launch at the launch range. This group should also
encompass, for example, the manufacturer that produces a component part
for installation in the launch vehicle or payload, or the supplier that
delivers a piece of equipment or other physical object used to prepare
for or conduct a launch, as well as the contractor that constructs or
refurbishes a launch pad specifically for licensed launch activities.
In other words, to the extent a third-party loss is attributable to the
direct or direct involvement of contractors or subcontractors who have
provided goods or services in connection with licensed launch
activities, the required insurance should cover their resulting
liability. It is important to note that the statute addresses claims
that result from an activity carried out under a license. Third-party
claims that do not result from licensed activities are not addressed by
the financial responsibility requirements of the statute. For example,
third-party claims that arise during the manufacture of a component
part would not be covered by required insurance.
Accordingly, the term ``contractors and subcontractors'' as set
forth in proposed Sec. 440.3 would include all contractors and
subcontractors at any tier that participate in or contribute to the
conduct of licensed launch activities, including suppliers of property
and services and component manufactures of a launch vehicle or payload.
The Office requests comments on the practical ability to protect all of
these parties through required insurance.
The definition of the term ``customer'' in proposed Sec. 440.3 is
intended to respond to concerns that the protections afforded ``the
customer'' under the statutory allocation of risk regime be available
not only to the party that actually contracts with the commercial
launch services provider and prospective licensee, but also to the
intended beneficiary or recipient of launch services when the latter
party is different from the former. For example, this situation
typically arises in the context of ``turnkey'' contracts for on-orbit
delivery of a satellite. Under this type of arrangement, the ultimate
owner/operator of the satellite contracts with a satellite manufacturer
to produce the satellite and secure launch services to deliver the
satellite to a prescribed orbit. The satellite manufacturer purchases
launch services directly from a commercial launch services provider,
and transfers title to the satellite only after successful completion
of the launch and on-orbit tests to confirm that the satellite is
functioning properly. For this reason, the term ``customers'' also
includes a person to whom the procurer of launch services conditionally
sells, leases, assigns, or otherwise transfers its rights in the
payload or a part thereof. Another example is the purchaser of an
interest in the satellite, e.g., transponders, from the party that owns
the satellite whether that party has purchased launch services directly
or has contracted for on-orbit delivery on a ``turnkey'' basis. Another
example is the customer who has placed its property on board the
payload in order to receive an on-orbit service, such as microgravity
experiments. The Office believes that these parties should be viewed as
``customers'' in order to enable U.S. commercial launch services
providers to compete with foreign operators, consistent with one of the
objectives of the 1988 Amendments. The proposed definition of
``customer'' therefore includes the person who enters into a launch
services agreement with the licensee, as well as any person to whom the
customer has, conditionally or otherwise, sold, leased, assigned or
otherwise transferred any of its rights in the payload to be launched.
The term ``customer'' does not include the ultimate beneficiary of
the payload services, as opposed to launch services, because doing so
could theoretically include any person who uses a television or makes a
long-distance telephone call, and goes beyond the intended scope of the
Act.
When the licensee's customer is a U.S. Government agency, it is not
intended that the agency be treated any differently from a
nongovernmental customer with respect to the payload. Thus, as
discussed in greater detail in the accompanying supplementary
information under the heading, ``Government Customer,'' and in the
analysis of Sec. 440.17 of the proposed regulations, the Government
payload is not covered by required Government property insurance and
the U.S. Government agency involved accepts responsibility for property
damage to the payload. For other purposes, the Government customer is
an agency of the United States involved in licensed launch activities
and, as such, it is a named insured in required insurance and its
employees are deemed third parties.
A definition of the term ``Government personnel'' has been included
in proposed Sec. 440.3 for purposes of identifying those employees of
the Government and its contractors and subcontractors entitled to
protection and coverage by required insurance.
A definition of the term ``hazardous operations'' is included to
add clarity to the list of information required by the Office to
perform a determination of maximum probable loss. The definition
proposed is consistent with the Office's study, ``Hazard Analysis of
Commercial Space Transportation,'' prepared in May 1988, and is
intended to capture activities that create a potential for an accident
that would result in damage or injury.
The term ``liability'' refers to any legal obligation, whether
arising under United States, international or foreign law, to pay
claims for bodily injury or property damage resulting from licensed
launch activities.
The term ``licensed launch activities'' is intended to reflect the
activities subject to the Department's authority under the Act to
license the launch of a launch vehicle. For purposes of applying the
proposed regulations, it focuses specifically on activities authorized
to be conducted under a particular license issued by the Office.
The term ``maximum probable loss'' (or MPL) refers to the Office's
determination, in the form of a dollar amount, of the greatest
potential losses for bodily injury and property damage
[[Page 39003]]
that can reasonably be expected to occur as a result of licensed launch
activities. The Office determines the value of the maximum probable
loss attributable to licensed launch activities by analyzing the known
hazards, the consequences (amount of loss), and probability of loss
associated with such activities. It does not mean maximum possible
loss, that is, a ``worst case'' scenario regardless of likelihood.
Rather, assessing maximum probable loss employs risk analysis
methodology. The analysis takes into account the characteristics of one
or more launches in similar circumstances, the proximity of persons and
property on and around the launch site and the likelihood of injury and
damage within an established probability threshold. (A more elaborate
explanation of the Office's methodology for determining the value of
maximum probable loss is provided in the section-by-section analysis
accompanying Sec. 440.7.)
Through risk analysis, the Office determines two results: the
probability an undesirable event will occur and the consequences
(measured as the amount of loss) of that event. The Office then
compares these results to a threshold probability of occurrence
selected by the Office in order to determine whether the results are
reasonable to expect, or probable, and therefore warrant financial
protection against their occurrence. Typically, the larger, or more
catastrophic, the potential loss or damage, the less likely it is to
occur. The threshold probability is the probability value selected by
the Office at and below which loss or damage that can be reasonably
expected to occur is measured. Loss or damage that has a likelihood of
occurring that is equal to or greater than the threshold probability is
considered probable. Accordingly, insurance to protect against that
amount of damage or loss is required. Loss or damage that has a
likelihood of occurring that is less than the threshold probability is
not reasonably likely to occur and is therefore considered improbable.
Accordingly, insurance to protect against such loss or damage is not
required. In summary, maximum probable loss is the dollar value
determined by the Office as the upper bound of loss that can reasonably
be expected to result from licensed launch activities. Loss or damage
exceeding the upper bound would result from events that are so very
unlikely as to be unreasonable to expect. That is, they are not
sufficiently probable.
Currently, the Office utilizes two different threshold
probabilities in determining third-party and Government property
maximum probable loss. The threshold probability used for determining
third-party MPL, exclusive of Government personnel, is on the order of
one in ten million. The threshold probability for determining
Government property MPL and third-party MPL for Government personnel is
on the order of one in one hundred thousand. The thresholds are defined
to accommodate the difficulty of setting precise bounds on risks that,
by definition, are somewhat remote.
The Office's selection of on the order of one in ten million as the
threshold probability (the probability of occurrence) for determining
third-party MPL is based upon the Government's experience in supporting
launch activities at Federal ranges. Because of the stringent safety
requirements used at Federal range facilities, the general public in
the vicinity of the range has little chance of being adversely affected
by a launch event. As a result, the likelihood of a third-party
casualty resulting from a launch from a Federal range should be no
greater than on the order of one in one million. If the Office used one
in one million as the threshold probability for determining third-party
MPL, no third-party loss would reasonably be expected to occur, the MPL
would be zero, and no third-party liability insurance would be
required. The Office does not believe that this was the result Congress
intended in adopting maximum probable loss as the basis for setting
financial responsibility requirements. Accordingly, the Office's view
is that the Act requires a reasonable and measurable amount of
financial responsibility by licensees and has selected the very low
threshold of on the order of one in ten million probability of
occurrence as the threshold probability that achieves this result. The
MPL determination using this threshold signifies that there is less
than on the order of a one in ten million chance that claims for third-
party losses would exceed the required amount of insurance. Stated
another way, the insurance requirement set by the Office is the maximum
magnitude of loss such that there is less than on the order of one in
ten million chance of exceeding this amount.
The Office utilizes on the order of one in one hundred thousand as
the threshold probability for determining Government property insurance
requirements because Federal range facilities, by their very nature and
intended purpose, will be exposed to hazardous activities and may
suffer some damage. Thus, the Government appropriately accepts greater
risk than third parties and the MPL is determined using the higher
threshold probability. This assumption of some amount of risk may, in
part, account for the lower statutory ceiling on insurance requirements
and the Government's waiver of claims for damage above the amount of
required insurance. Similarly, Government personnel, including
employees of Government contractors and subcontractors, accept greater
risk than the general public or other third parties through their
exposure to or involvement in hazardous operations. For this reason,
the third-party MPL determination includes risks to Government
personnel measured at the probability threshold of on the order of one
in one hundred thousand, rather than on the order of one in ten
million.
In the Office's experience, this approach results in insurance
requirements that are reasonable, within the statutory ceiling for
required insurance, and adequate to protect U.S. Government interests.
The proposed definition of the term ``third party'' reflects the
definition contained in 49 U.S.C. 70102(11). However, the Office's
definition of ``third party'' clarifies the statutory definition by
expressly including as third parties United States Government
personnel, including employees of Government contractors and
subcontractors, to the extent that they are directly involved in
providing launch support or launch services for licensed launch
activities. The purpose of the definition is to ensure that liability
insurance, or other form of acceptable financial responsibility,
required under Sec. 440.5(b) of the proposed regulations is available
to cover the claims of Government personnel, as well as persons not
involved in licensed launch activities, who are injured or otherwise
sustain a loss as a consequence of those activities. Government
personnel who contract personally and directly with a licensee or other
nongovernmental launch participant to provide a service are not
considered Government personnel for purposes of these regulations when
performing that service. In addition, the proposed definition would
expressly exclude employees of other launch participants because their
claims for injury or loss are not intended to be included in the
Office's determination of required third-party liability insurance.
Responsibility for employee losses is assumed by each employer under
the reciprocal waiver of claims required under Sec. 440.17 of the
proposed regulations, and those employee claims are not eligible for
payment by the U.S. Government in the event of excess third-party
claims.
[[Page 39004]]
The term ``United States'' is intended to refer to the United
States Government in its entirety and as the collective sum of its
various parts.
Section 440.5--General
Although issuance of a license constitutes legal authorization to
carry out the activities specified therein, certain conditions must be
satisfied for the licensee to proceed with authorized activities.
Section 440.5(a), as proposed, would establish the fundamental
requirement that authorization to conduct licensed launch activities
pursuant to a license issued by the Office is contingent upon the
licensee's demonstration of financial responsibility and compliance
with risk allocation requirements as set forth in proposed regulations.
In addition to insurance required by this part, a licensee may be
required by other agencies of the United States Government to obtain
other types of liability or property insurance covering activities
involving United States launch property, launch services or personnel.
Other insurance requirements may include workers compensation,
unemployment insurance, employer's liability, comprehensive automobile
liability, environmental liability, or insurance required by Federal,
State or local environmental protection laws and regulations. These
other insurance requirements are not set forth in license orders issued
by the Office; however, licensees are not relieved of the requirement
to comply with them.
In addition, as further explained in the section-by-section
analysis accompanying Sec. 440.15(b), the financial responsibility
requirements prescribed under the proposed regulations would preempt
those provisions in agreements between the licensee and the United
States, or any agency thereof, involving United States launch property
or launch services that address financial responsibility, allocation of
risk, and related matters covered by 49 U.S.C. 70112 and 70113. The
objective of this preemption is to avoid duplicative requirements, but
not to relieve the licensee of contractual or legal obligations
intended to address interests other than those served by the statute.
Section 440.5(b) would codify the Office's existing practice of
setting the required amount of financial responsibility in license
orders. As a procedural matter, the Office has relied on the issuance
of license orders to supplement the license and prescribe specific
terms, conditions and limitations, including financial responsibility
requirements, on a case-by-case basis. Many of these terms and
conditions would now be set forth in rules of general applicability.
The amount of financial responsibility that must be obtained would
continue to be set forth in a license order. The license order would
generally be issued concurrently with the license, although there may
be circumstances when it would follow issuance of the license. The
Office may also revise financial responsibility requirements in a
subsequent license order in the event of a change in exposed property
or risks affecting the required amount of coverage. In any event, to
the extent the license order reflects the Office's determination of
maximum probable loss, the timing of its issuance would be subject to
the provisions of proposed Sec. 440.7.
Propose Sec. 440.5(c) states the fundamental principle that
evidence of financial responsibility provided by the licensee is no
substitute for actual financial responsibility of the licensee. In the
event the licensee fails to obtain or maintain insurance or financial
responsibility in amounts and according to the terms and conditions
prescribed, the licensee would bear the risk and be liable for claims
resulting from licensed launch activities that would otherwise have
been covered. In addition, in the event of a defense raised, or
exclusion, to coverage under the policy that relieves the insurer from
compensating claims, the licensee would remain responsible for
satisfying the claim. The only exception to this fundamental principle
provided under the statue is where the Secretary of Transportation
specifically determines that an exclusion is usual for the type of
insurance involved, and the United States Government agrees to provide
for paying claims from the first dollar of loss. As explained in the
section-by-section analysis accompanying Sec. 440.19, a policy
exclusion would be considered ``usual'' only if insurance covering the
excluded risk is not commercially available at reasonable rates. The
licensee is required to submit a certification to that effect when
demonstrating compliance with financial responsibility requirements. No
final determination is made by the Department unless and until an
occasion arises when the Department is called upon to prepare a
compensation plan covering excluded claims. If it then becomes evident
that insurance was, in fact, available at commercially reasonable
rates, the Government need not pay claims from the first dollar of loss
and the licensee remains responsible for the liability.
Failure by the licensee to comply with these requirements may
result in suspension or revocaton of the license and also subjects the
licensee to other penalties as provided in section 405.7 of this
chapter.
Section 440.7--Determination of Maximum Probable Loss
Section 440.7, as proposed, describes the Office's procedures for
assessing and issuing a determination of maximum probable loss (MPL) on
which financial responsibility requirements are based. Section 440.7(a)
would provide that a determination of maximum probable loss resulting
from licensed launch activities forms the basis of the financial
responsibility order issued by the Office.
Section 440.7(b) would provide the timing for the Office's issuance
of the MPL determination, consistent with the Act. The Act provides
that MPL determinations must be made no later than 90 days after a
licensee or transferee requires it and has submitted all of the
information needed to make a determination. In practice, the Office
begins the risk analysis required for the MPL determination during the
180-day license application review period. Doing so enables the Office
to issue financial responsibility requirements concurrently with a
license so as not to delay commencement of licensed launch activities.
On a very few occasions, the Office has been unable to issue the
MPL determination concurrently with the license. This result may occur
for several reasons. In order to conduct the analyses, the Office
requires from the applicant information described in Appendix I to the
proposed regulations and may also request information from Federal
range facilities involved in proposed launch activities or exposed to
risk of damage or loss as a result of proposed activities. Incomplete
information, either from the applicant or from the Federal range
facility, can extend the amount of time necessary for the Office to
complete and issue the MPL determination. Typically, a delayed
determination results from submission by the applicant of incomplete
information on which to perform the necessary risk analyses. Until the
Office has complete and sufficient information the 90-day period does
not begin. A delayed determination as a result of incomplete
information is not untimely. In addition, the Act requires that the
Office consult with heads of other appropriate Federal agencies in
issuing financial responsibility requirements. The Office's practice
has been to share its
[[Page 39005]]
MPL analyses with affected Federal agencies and request comments within
three weeks. The Office's experience has shown that three weeks may not
be sufficient for other Federal agencies to complete their reviews and
issuance of the MPL determination may necessarily be delayed.
Accordingly, proposed Sec. 440.7(b) would provide that the Office
notify a licensee or transferee of any delays in issuing the MPL
determination beyond the statutory 90-day period. The Office intends
that this provision would be invoked only in circumstances beyond the
Office's control, such as protracted consultation with other Federal
agencies.
Proposed Sec. 440.7(c) refers to Appendix I to the proposed
regulations which prescribes information requirements for issuing a
maximum probable loss determination. Appendix I is intended to be a
comprehensive list of information requirements, some of which could be
waived by the Office if, as a result of consultation with the
applicant, the Office finds that the information is not necessary in
light of the particular launch proposal. Once information is provided,
the person requesting the MPL determination is responsible for
reporting any changes that could affect the outcome of the risk
analyses.
As provided in proposed Sec. 440.7(d), the Office may amend or
adjust its maximum probable loss determination to reflect any new
information relevant to an accurate assessment of risk. In lieu of
submitting duplicative information, a person requesting a MPL
determination who has previously been issued one may certify that there
has been no change from information previously submitted. This
provision is intended to reduce the regulatory burden on licensees who
conduct similar launch activities under separate licenses.
An MPL determination must accompany every license authorizing
launch activities and is therefore typically performed in conjunction
with the Office's review of a license application. Section 440.7(e)
would address the situation in which the Office is requested to issue a
determination of maximum probable loss resulting from activities that
are not the subject of a specific license application. A determination
made under this section would not be governed by the 90-day requirement
set forth in Sec. 440.7(b).
Methodology for Determining Maximum Probable Loss
The Office derives the value of the maximum probable loss that may
result to third parties and Government property from licensed launch
activities through case-by-case risk analyses. The Office considers
factors ranging from the kinds of hazardous operations, as defined in
proposed Sec. 440.9, to be conducted under a license, to the number of
third parties that may be exposed to risk in the event of a launch
accident. Failure modeling techniques, the Office's experience in
preparing numerous MPL determinations, and engineering judgment all
play roles in the final determination. A more complete description of
the Office's approach to hazard analysis and risk analysis techniques
appears in a study, entitled ``Hazard Analysis of Commercial Space
Transportation,'' released by the Office in May 1988. A copy may be
obtained from the Office upon request. In addition, the Office is
preparing a comprehensive description of its procedural methodology for
determining maximum probable loss in a separate report to be made
available to the public. A brief summary of the Office's approach to
determining MPL is presented below to explain the underlying rationale
for the information requirements referenced in proposed Sec. 440.7(c)
and listed in appendix I to part 440.
In addition to information required from the applicant, the office
obtains certain information from the Federal range facility in order to
assess properly the value of Government property exposed to risk. This
information is not reflected in regulatory requirements. Typically,
this information consists of identification of facilities the Federal
range facility has authorized for use by the licensee and the value of
those facilities, other range facilities that the Federal range
facility identifies as exposed to risk as a result of the licensee's
proposed launch activities due to their proximity to the licensee's
hazardous operations, the number of Government personnel that the
Federal range facility believes would be exposed to risk, and range-
required risk mitigation measures.
Much of the information required to complete the MPL determination
is provided as part of the application to conduct a launch. However,
because any person can request a maximum probable loss determination at
any time, information requirements for obtaining a determination are
included as part of this proposed regulation. The proposed information
requirements are not intended to place an additional or duplicative
burden on prospective licensees and can be satisfied by specific
reference to the license application.
Appendix I describes the full range of information required from an
applicant to complete the MPL determination. In certain circumstances,
not all of the information would be required and the Office will advise
the applicant accordingly during pre-application consultation. For
example, where a launch from an isolated location would not expose any
identifiable Government property to risk, the Office would waive those
information requirements directed at assessing risk to Federal range
facility assets. A launch proposal may involve vehicles and risks
similar to those previously considered by the Office and the Office may
waive information requirements it believes would be unnecessary or
duplicative in light of existing analyses. Where the Office can
determine, on the basis of the launch proposal, that certain risks need
not be considered in order to calculate MPL, the Office will waive the
requirements that pertain to those risks.
The complexity of the MPL analysis will depend upon the risks that
attend a specific launch proposal. At its most complicated, a complex
launch vehicle involving hazardous operations and flight paths that
expose people and property on and off-range to risk, the Office is able
to employ a variety of risk analysis tools, such as computer models
that estimate impact probabilities, potential property damage and
casualty expectations. For all proposals, government property and
third-part losses are considered in separate MPL analyses.
The Office's objective is to determine the value of the maximum
magnitude of loss that is sufficiently probable to warrant financial
responsibility protection. That is, within the stated probability
thresholds, as defined in proposed Sec. 440.3, the Office must
establish a maximum value of loss. By corollary, the maximum magnitude
of loss within the probability threshold drives the MPL value. This
means that the Office need not consider every single accident scenario
that falls within the threshold probability. Those having relatively
minimal damage consequences need not be individually considered.
Rather, the office's focus is on finding the maximum value of loss that
would result from an accident that is within the specified threshold
probability of occurrence. The Office does so by identifying
specifically the hazardous activities to be conducted under a license,
Government and third-party property placed at risk by those activities,
and the number of third parties placed at risk. Then, the Office
identifies a range of accident or failure scenarios and estimates the
probability
[[Page 39006]]
of occurrence for each scenario. The Office then estimates the value of
loss for various accident scenarios.
The Office utilizes several methodologies, in order of preference,
to estimate the probability of occurrence of the different scenarios.
The order of preference begins with actual experience or existing
models, and descends to expert probability analysis as the second best
alternative, followed by professional engineering judgment.
Estimating the value of loss for each accident scenario is done
similarly, using different methodologies in an order of preference.
Actual experience is most reliable and is used wherever it exists and
is directly applicable to a launch proposal. For pre-flight licensed
launch activities, the Office uses estimates that are informed by
facility damage tables developed for the Federal range facilities,
building design specifications, and engineering judgment. Computer
models, such as the Facility Damage and Personnel Injury (DAMP)
programs, may be used to estimate damage during and immediately
following vehicle life-off. For third-party casualties, the Office
develops an Expectation of Casualty figure for off-range population and
Government personnel at risk.
As noted above, low loss scenarios need not be considered unless a
possible accident scenario involves losses that, when combined, may be
significant in determining the value of the maximum probable loss.
However, in many instances, accident scenarios are mutually exclusive.
For example, a pre-flight accident that destroys the launch vehicle
means there will be no launch, and there is no need to aggregate the
damage from a pre-flight accident of this nature and a post-launch
accident in determining the maximum value of loss.
In summary, the Office performs a detailed estimate of property
damage and casualties for the different accident scenarios that fall
within the threshold probability of occurrence in order to determine
the maximum value of loss. The MPL value becomes the amount associated
with the most costly accident scenario falling within the threshold
probability of occurrence.
Government Property
The Office's maximum probable loss determination for Government
property damage takes into account U.S. Government property situated on
a Federal range facility, wherever located. As noted above in the
Supplementary Information, the Office includes as part of its
determination Government range assets on adjacent Federal range
facilities that are exposed to risk of damage or loss as a result of
licensed launch activities.
The Office historically has not considered temporarily placed or
``transient'' Government property, including launch vehicles and
payloads, in calculating the maximum probable loss determination. The
Office bases its approach on several considerations. First, the Federal
range facility is responsible for maintaining a schedule of launch
activities. The Government is therefore aware of upcoming commercial
launch activities and, by exposing its transient or movable property to
the possibility of damage or loss due to commercial launch activities,
accepts certain risks. Second, readily movable property may no longer
be present at the time the licensee ultimately conducts licensed launch
activities. If that property were included in the MPL determination,
the licensee may be unfairly burdened with too great an insurance
requirement. One alternative would be to adjust, either upward or
downward, the amount of property insurance that would be required just
prior to commencing licensed activities. This approach is arguably
contemplated by the statue, which provides for the Secretary to amend
the maximum probable loss determination when new information so
warrants. However, last minute adjustments to the MPL determination due
to the Government's action of placing its property at risk, could prove
administratively burdensome for both the Office and the licensee, whose
launch could be delayed by having to demonstrate additional financial
responsibility due to last minute changes in requirements. Third,
including transient or Government property temporarily located on the
Federal range, such as launch vehicles and payloads, could readily
drive the MPL value above the $100 million statutory ceiling for
required insurance. Although the Act contains provisions whereby the
Department is directed to review annually the statutory ceilings on
required insurance and report to Congress proposed adjustments to
conform with changed liability expectations and the insurance market,
the Office views the $100 million statutory ceiling on the Government
property insurance requirement as a clear indication that Congress did
not intend for these Government assets, which typically cost in excess
of $100 million each, to be included as part of the range assets on
which the MPL determination is based.
The Office makes an important distinction between transient,
movable property that is not included in the MPL determination and
property that has been placed in a storage facility on the Federal
range. The latter is included in the MPL determination. The rationale
for the Office's distinction is that certain facilities are intended,
by design, to house Government property on a temporary or long-term
basis. However, where Government property has been stored in a facility
not designed or intended for storage, thereby exposing the property to
additional risk, the Office believes it would be unreasonable to impose
the cost of this additional risk on the licensee. The Office therefore
excludes the stored property from its MPL determination. In addition,
to the extent this stored property, such as rocket motors or
explosives, may contribute to the possible extent of damage to
Government facilities, the Office does not factor the additional losses
that may be attributed to that property in determining the MPL value.
In taking the approach of excluding certain transient, movable
Government property, the Office is aware that failure to include it
could expose the Government to greater risk of loss. However, the
Office believes that its approach reflects the intent underlying the
comparatively low statutory ceiling on the Government property
insurance requirement, and is reasonable in light of the Government's
assumption of risk in placing property on the Federal range facility in
a manner that exposes it to damage or loss from commercial launch
activities. For these reasons, the Office believes that its approach is
the better one. Nevertheless, it is important to bear in mind that,
whether or not the value of certain property is included in making the
MPL determination, damage or loss to any Government property, whether
fixed or movable, located on the Federal range facility must be covered
by the insurance policy the licensee obtains under 49 U.S.C.
70112(a)(1)(B). Comments are requested on the Office's approach to
considering non-fixed Government property in determining Government
property insurance requirements.
Current Replacement Value
In determining maximum probable lose for Government property, the
Office bases its findings on the current replacement value of the
property. The notion of current replacement value takes into account
the current use and function of a Government facility, not its
originally intended use. For example, the current replacement value for
a facility that was originally built to support engineering operations
but is no longer needed for that purpose and is
[[Page 39007]]
now used as an excess storage facility would most likely be lower than
its original construction cost, even if a launch accident meant its
total loss. The Office's rationale is that the cost of restoring
property to its original use when the Government itself has chosen not
to maintain the property in its original condition imposes an unfair
cost on the licensee. The reverse situation may also occur, whereby
restoring property to its current use may cost more than restoring it
to its original use. This could occur where property has been up-graded
or modified to support another purpose than originally intended. In
that event, the Office believes that it is fair and appropriate to
require insurance that covers the maximum probable loss to the
property's current value, up to the statutory ceiling. In all
circumstances, the Office consults with Federal range authorities in
valuing Government property.
Third-Party Property Damage
Under the proposed regulations, third-party property includes all
property owned by persons or entities other than the licensee and its
customer, and the contractors, subcontractors, and employees of each,
involved in licensed launch activities, the Government's contractors
and subcontractors involved in licensed launch activities, and the
Government (except for property located on a Federal range facility).
It includes the personal property belonging to Government personnel
involved in licensed launch activities, and all off-range private and
public property other than property on nearby or adjacent Federal range
facilities for which Government property insurance coverage is
required.
The risk analysis performed to determine the value of third-party
property maximum probable loss utilizes three approaches to estimating
property values: (1) Specific determinations, (2) averaging, and (3)
setting an upper bound or ceiling. The Office selects the appropriate
methodology to use on a case-by-case basis, taking into account such
factors as the availability of information, the launch site, and the
range of risks to third parties presented by a particular launch
proposal. The Office may use all three methods of estimating third-
party property losses in one MPL determining, depending upon the type
and amount of property exposed to loss or damage as a result of
licensed launch activities. In all instances, the Office utilizes a
conservative approach to ensure the adequacy and sufficiency of its MPL
determination and third-party liability financial responsibility
requirement.
The first estimation methodology, specific determinations, entails
obtaining actual property values and determining the likelihood and
consequences of an accident affecting that property. This method is
typically used for very high-value property in the area that would be
most exposed to risk. The second method, averaging, can be accomplished
in several ways. One way is to average estimated property values in a
homogeneous area through such means as county or city tax assessment
records. Another is to assume that an accident will occur in the high-
value part of the risk area and determine the average of the high-value
property exposed to risk. This conservative approach assures that the
MPL determination will be sufficient to cover losses to this high-value
property. The third method, setting an upper bound, also yields a
conservative result. This approach utilizes the Office's experience by
considering the nature and size of the area exposed to risk, e.g.,
urban, suburban, rural, industrial, farm, or some combination, and
comparing it to third-party property considered at risk in past MPL
analyses and to know values of Government property placed at risk.
Setting an upper bound involves a qualitative assessment of the value
of third-party property at risk and is based on the Office's extensive
experience in assessing risk.
Third-Party Casualties
The Office must also consider third-party casualties in determining
maximum probable loss to third parties. Doing so requires an analysis
of the number of persons exposed to risk and assigning a value of life.
Department guidance issued in 1993 for preparing economic evaluations
suggests using $2.5 million as the value of life in estimating one's
willingness to pay for safety measures in order to reduce one's
probability of death. However, the Office is mindful of the distinction
between the value of life used for purposes of estimating the cost of
safety requirements in regulations and for seeking damages in civil
litigation. Accordingly, the Office utilizes the somewhat higher figure
of three million dollars as the value of a life to assure a
conservative, but reasonable, result.
The Office requests comments on the appropriate means of assessing
the value of third-party property and the value of life for purposes of
determining maximum probable loss to third parties. In their comments,
commenters are requested to consider the impact on insurance
requirements that could result from a change in methodology.
Section 440.9--Insurance Requirements for Licensed Launch Activities
This section would establish in a regulation financial
responsibility requirements in the form of insurance as a condition of
every license issued by the Office authorizing commercial space launch
activities. A licensee would also be allowed to demonstrate an
equivalent amount of financial responsibility through means other than
insurance.
Proposed Sec. 440.9(b) would establish the requirement that a
licensee obtain a policy of liability insurance to pay claims of third
parties for bodily injury or property damage resulting from licensed
launch activities. In accordance with 49 U.S.C. 70112(a)(4), the
parties protected under the insurance policy as insureds, or additional
insureds, are the United States, its agencies, and its contractors and
subcontractors, and their respective personnel, involved in licensed
launch activities; and the licensee, the customer, and their respective
contractors and subcontractors involved in licensed launch activities.
Because Government personnel, as defined in proposed Sec. 440.3, are
included within the proposed definition of ``third party,'' Government
personnel may be both third-party claimants whose claims are
compensable by required liability insurance, as well as additional
insureds.
Under proposed Sec. 440.9(c), the amount of required insurance is
based on the Office's determination of maximum probable loss from
third-party claims resulting from licensed launch activities. As
provided by statute, the amount of coverage required by the Office may
not exceed $500 million, or the maximum liability insurance available
on the world market at reasonable cost. It should be noted that the
maximum limit on insurance applies to the aggregate of claims for any
particular launch, as provided by 49 U.S.C. 70112(a)(3). A policy may
cover more than one launch. However, the amount of insurance prescribed
by the Office in a license order must be available to cover the total
of third-party claims resulting from each launch event. For example, if
a licensee intends to conduct a series of launches under an operator
license and third-party claims resulting from the first launch are
compensated by the liability policy, the amount of coverage for each
succeeding launch must be the amount required by the license order.
Coverage may not be reduced by the amount of claims paid
[[Page 39008]]
as a result of previous launch activities conducted under the same
license.
Section 440.9(d) would establish in a regulation the requirement
that a licensee must obtain a policy of insurance to compensate for
damage to or loss of property at a Federal range facility that is
owned, leased or occupied by, or in the care, custody or control of,
the United States, its agencies, and its contractors and subcontractors
involved in licensed launch activities, that results from licensed
launch activities. The maximum probable loss determination to support
this requirement focuses on valuable national assets located at Federal
range facilities that are put at greatest risk by licensed activities;
however, all Government property (and that of its agencies, contractors
and subcontractors involved in licensed launch activities) at a Federal
range facility must be protected. This would include Government range
facilities surrounding or adjacent to the proposed launch site. The
Office's experience in administering financial responsibility
requirements to protect Government property has been previously
described in the supplementary information accompanying this proposal
under the heading, ``Property Protection for Government Launch
Participants.'' The Office does not object to any reasonable approach
on the part of a licensee that is taken to meet this requirement as
long as the ultimate objective is achieved, that is, providing for the
compensation of property damage sustained at Federal range facilities
by the United States, its agencies, contractors and subcontractors
involved in licensed launch activities, resulting from activities
carried out under a license. However, the Office believes that, at a
minimum, naming the U.S. Government and its agencies, contractors and
subcontractors, involved in licensed launch activities, as additional
insureds is necessary to accomplish this objective. Comments are
requested on whether the Government should also be named the loss payee
and be responsible for administering payment of insurance proceeds to
its contractors and subcontractors.
Under proposed Sec. 440.9(e), the amount of required insurance
would be based on the Office's determination of maximum probable loss
attributable to property damage claims of the United States, its
agencies involved in launch services, and its contractors and
subcontractors involved in licensed launch activities; however, the
amount would not exceed $100 million. As noted in the analysis
accompanying proposed Sec. 440.9(c), the maximum limit on insurance
applies to the aggregate of claims for any particular launch. Covered
claims are those against a person, including Government employees, for
damage or loss to Government property, including the property of
Government contractors and subcontractors, resulting from licensed
launch activities. In this respect, the named insureds are different
from those on the liability policy.
Section 440.9(f) would provide that, in lieu of obtaining policies
of insurance, the licensee may demonstrate financial responsibility in
an alternative form--such as insurance purchased from a risk retention
group authorized under the Risk Retention Amendments of 1986, surety
bonds, letters of credit, or some combination--that reflects
substantially the same terms and conditions of the requirements set
forth in these regulations. Whatever the form of financial
responsibility proposed in lieu of insurance, the licensee must
demonstrate that it meets the requirements for financial
responsibility.
Section 6 of the 1988 Amendments to the Commercial Space Launch Act
provides special incentives to certain satellites affected by National
Security Decision Directive 254. This directive, issued by President
Reagan in August 1986, following the Challenger accident, essentially
ended NASA's role in launching commercial and foreign satellites.
Section 6 of the 1988 Amendments provides that if certain eligibility
criteria are met, the requirement that the licensee obtain property
insurance covering loss of or damage to United States Government
property does not apply. The Office believes that there are no
remaining ``eligible satellites'' that have not been launched or
otherwise accounted for and no provision is made in the proposed
rulemaking to cover them. Comments are requested as to whether this
provision may be properly omitted in final regulations.
Section 440.11--Duration of Coverage; Modifications
Proposed Sec. 440.11(a) would specify when financial responsibility
must be in place. Section 440.11(a), as proposed, would provide that
required insurance coverage or other form of financial responsibility
must attach upon commencement of licensed launch activities, and remain
in full force and effect until the later of: (i) The completion of
licensed launch activities, as defined by the Office in a regulation,
or (ii) until risk resulting from licensed launch activities to third
parties and Government property is sufficiently small, as determined by
the Office through the risk analysis conducted to determine maximum
probable loss, that financial responsibility is no longer necessary.
The duration of financial responsibility requirements for a particular
launch is specified by the Office in a license order.
The statutory requirement for a licensee to obtain insurance or
otherwise demonstrate financial responsibility refers to providing
compensation for claims ``resulting from an activity carried out under
the license.'' 49 U.S.C. 70112(a)(1). Based upon this language, the
Office's view is that insurance requirements attach upon commencement
of licensed launch activities but do not necessarily cease upon
completion of a licensed launch, defined for orbital launches as the
point when any remaining fuel is emptied from the upper stage, the
vehicle tank is vented and otherwise ``safed,'' and the upper stage is
no longer subject to the operator's control. Hazard analyses performed
by the Office to determine maximum probable loss have shown that the
greatest exposure for which insurance is typically required exists at
the time of lift-off and flight, and that there is virtually no
quantifiable risk to third parties or to United States Government
property after completion of a nominal launch. The Office has found
that thirty days is an appropriate amount of time in which to determine
whether an orbital launch has been nominal or whether an anomaly has
occurred that could affect risks to third parties or the Government.
For this reason, historically, the Office has provided in license
orders applicable to orbital launches that insurance coverage is
required to attach upon commencement of licensed activities and remain
in force ``for a period of thirty (30) days following payload insertion
into orbit.'' For suborbital launches, insurance has been required to
be maintained at least until motor impact and payload recovery.
However, in the event of a launch anomaly, the Office may amend the
license order to require that the licensee maintain insurance until the
Office determines that risks to third parties and Government property
are sufficiently small that insurance is no longer needed.
When the licensee is no longer required to maintain insurance under
the license, both the Government's waiver of excess property damage
claims under Sec. 440.17(c), and the Government payment of excess
third-party claims provisions under Sec. 440.19, would apply from the
first dollar of loss. However, it is important to note that the
[[Page 39009]]
Act requires that the third-party claim result from the licensed
activity in order for the Government payment of excess third-party
claims provision to apply. When that nexus no longer exists, neither
does the Government's acceptance of the risk of such claims. In every
instance, a factual determination would be required as to whether a
sufficient nexus exists between the licensed activity and the third-
party claim. In terms of business planning, it has been the Office's
experience that for nominal launches, licensees may procure insurance
for periods of time in excess of thirty days in accordance with
individual risk management practices because the premium rate
difference to cover any additional period of time tends to be
negligible.
As noted in the preceding Supplementary Information, questions have
arisen over time with respect to the appropriate scope of a license
authorizing pre- and post-flight ground operations and associated
requirements for insurance coverage. As to pre-flight activities, the
Office intends to address the question of the appropriate scope of a
license authorizing launch activities in a separate rulemaking. With
respect to post-launch ground operations, the Office believes that
damage to Government property or property of Government contractors and
subcontractors, as well as to third parties, could occur during clean-
up and from removal of launch-related equipment and material and that
insurance should remain in place to protect against such claims. In
this regard, it is significant to note that the Act requires financial
responsibility to protect against claims ``resulting from an activity
carried out under license'' (emphasis supplied) (49 U.S.C.
70112(a)(1)). Comments are requested on the proposed duration of
required insurance with respect to ground operations, including clean-
up and removal of launch-related equipment from the launch site.
Comments are also requested on the extent to which insurance should be
required to compensate claims of third-parties and the Government for
short-term environmental damage, or alternatively, whether clean-up or
short-term environmental damage to Government property should be
charged to the licensee as a direct cost.
The Office is also requesting comments on the extent to which
insurance to protect against claims for long-term environmental or
property damage should be required, its availability, and mechanisms
for assuring adequate coverage has been obtained. The Office is aware
that long-term environmental damage risks are typically excluded from
launch insurance coverage because of, among other things, the
difficulties of insuring against claims that may not arise until long
after the risk period (generally launch plus a number of days) is
concluded. Commenters should address whether such claims should be
included in determining maximum probable loss for licensed launch
activities and whether the existing statutory ceilings are adequate if
such claims are included. In considering the issue, commenters are
requested to suggest mechanisms for ensuring that funds are available
to address long-term environmental damage that results from commercial
launch activities. Commenters are also requested to address whether and
the extent to which insurance to protect against property damage that
results from orbital debris long after a launch has been completed
should be required.
Section 440.11(b), as proposed, would provide that the licensee may
not replace, cancel, change or withdraw the insurance or other form of
financial responsibility required, or in any way modify it to reduce
the limits of liability or the extent of coverage, and that any form of
financial responsibility may not be permitted to expire prior to the
time specified by the Office in a license order, unless the Office is
notified in advance and expressly approves of the modification. The
purpose of this requirement is to ensure that the licensee has adequate
coverage in place that meets the requirements of the applicable license
order.
Section 440.13--Standard Conditions of Coverage
Proposed Sec. 440.13(a) identifies the terms and conditions that
must be included in any insurance policy obtained to satisfy the
requirements of proposed Sec. 440.9. With some modification, the
proposed terms and conditions of insurance coverage have been required
by the Office in license orders issued on a case-by-case basis in order
to carry out the office's responsibilities under the statute, and to
the Office's knowledge, have not been difficult to obtain.
Section 440.13(a)(1) would provide in a regulation that any
required policy of insurance must provide that bankruptcy or insolvency
of the insured (licensee) or any additional insured does not relieve
the insurer of any of its obligations under the policy. This
requirement is commonly found in liability insurance policies. Its
presence is desirable because under common law, if an insurance
agreement were construed as only an agreement to indemnify against
loss, under certain circumstances the insurer could avoid payment of
third-party claims altogether where the insured was declared insolvent.
This condition is intended to remove any doubt that the policy insures
against liability to pay damages and is not merely an agreement to
indemnify against loss.
Section 440.13(a)(2), as proposed, would provide that the policy
limits for any required insurance policy apply separately to each
occurrence and in the aggregate with respect to claims resulting from
licensed activities associated with a particular launch. This provision
would further the intent of 49 U.S.C. 70112(a)(3), which prescribes
insurance ceilings applicable to ``the total claims related to one
launch, * * *'' As noted above, where insurance is obtained by a
licensee for a number of launches under an operator license, the limits
of the policy must be available for each licensed launch and may not be
reduced due to claims resulting from a prior occurrence.
Proposed Sec. 440.13(a)(3) would state that any required policy of
insurance must provide for the payment of claims from the first dollar
of loss, without regard to any deductible, to the policy limits, except
in the limited circumstances allowed in the regulation. The Office
discourages the use of a deductible because of the clear statutory
mandate to ensure comprehensive protection for all insureds from
liability for third-party claims and prompt restoration of United
States range assets. If this coverage entails additional cost to the
licensee, it is not unreasonable relative to the policy objectives
underlying the statute. Risk retention arrangements between the
licensee and its insurer may be used as a means of reducing the policy
premium.
Nevertheless, the Office understands that licensees may desire a
small deductible amount from their coverage in order to reduce policy
premiums and the Office has included a provision in the proposal that
would allow the reasonable use of deductible amounts. However, to
ensure that statutory objectives are achieved, a deductible would be
allowed only if the amount of the deductible is placed in a an escrow
account established to cover claims resulting from licensed launch
activities or if the licensee can demonstrate to the office that it has
that amount readily available to it, with no prior liens or obligations
on the funds. The Office believes that use of a deductible is
appropriate only for comparatively small sums and should not be used as
a means of avoiding insurance.
[[Page 39010]]
Comments are requested on whether the proposed approach is reasonable.
Where Government property is concerned, commenters should bear in mind
the objective that proceeds must be made immediately available to
restore Government property to its prior condition and use, and that
any delays (e.g., in the event assets must be liquidated to pay claims)
would be counter to the statute. The Government may also be exposed to
claims by its contractors and subcontractors for their property damage
where insurance proceeds are not immediately available to cover those
loses. Any inability to obtain promptly full payment of such claims
could expose the Government to administrative and legal expenses the
Government seeks to avoid through required insurance.
Section 440.13(a)(4), as proposed, limits the defenses available to
the insurer to avoid paying claims under the policy. It states that a
required policy of insurance must provide that the actions of the
insured or any additional insured shall not result in invalidation of
the policy; however, an insured or additional insured itself may be
denied coverage under a policy for claims against it in the event of
any breach or violation by it of any warranties, declarations, or
conditions contained in the policy. Action by the insured includes
nonpayment of the policy premium. Thus, although the Office views the
licensee as ultimately responsible for paying additional insureds under
the policy as a result of the licensee's nonpayment of the premium.
As a general rule, liability and property insurance policies issued
by insurance underwriters contain certain standard exclusions of
coverage as well as particular exclusion depending on the activities
for which insurance is sought. Proposed Sec. 440.13(a)(5) acknowledges
that the insurance policies required under Sec. 440.9 may contain
certain exclusion from coverage. Those exclusion must be specified.
In the event of a claim for property damage or bodily injury that
is not covered by insurance, the liability for such damage and injury
would ordinarily fall on the licensee or additional insured in the
absence of some form of indemnification. The Secretary of
Transportation is empowered, under 49 U.S.C. 70113(a)(2), to provide
for payment of third-party claims that are the subject of insurance
policy exclusions that ``are usual for the type of insurance involved''
and for which insurance is therefore not available to cover the claim.
49 U.S.C. 70113(a)(2). In addition, under 49 U.S.C. 70112(b)(2), the
Secretary may, following interagency consultation, waive claims for
property damage not covered by required property insurance by reason of
exclusions that are ``usual for the type of insurance involved'' such
that insurance is not available. 49 U.S.C. 70112(b)(2). As a result, a
claim that is not compensated by insurance because it falls within an
insurance exclusion determined by the Office to be usual would
essentially permit first-dollar payment by the United States Government
without regard to the thresholds provided, respectively, in 49 U.S.C.
70113(a)(1) and 70112(b)(2).
However, in determining what may be considered usual exclusions for
the type of insurance involved, the Office is necessarily mindful of
the direction from Congress that first-dollar payments by the United
States for such exclusions should not be an inducement for insurers to
begin restricting the scope of coverage in their insurance contracts
with licensees. Moreover, payments for claims excluded from third-party
liability coverage, like payments generally of third-party claims in
excess of required insurance under 49 U.S.C. 70113, are subject to
certain conditions including Congressional approval of a compensation
plan and appropriation of funds.
There are no identical exclusions found in each and every policy.
Variations exist among U.S., London, continental European and other
overseas insurance markets. Moreover, exclusions may be added by an
insurer depending on the particular market and types of risks involved,
or can often be ``bought out'' by an endorsement or by a separate
policy. Also, exclusions may be added or existing exclusions modified
as a result of judicial interpretations the insurance market neither
intended nor anticipated in setting its premium rates. Based on
insurance market conditions and loss experience, future exclusions may
vary from customary or usual exclusions today. Consequently, the
proposed regulations define a usual exclusion as one for which coverage
is not commercially available at reasonable rates. Licensees must
certify at the time they demonstrate compliance with insurance
requirements that insurance covering the excluded risks is unavailable
at reasonable rates in order for the United States Government to
provide for payment of claims from the first dollar of loss. However,
the licensee's certification does not finally resolve that a particular
exclusion will be deemed to be ``usual.'' That is, in the event the
Office determines that insurance was available at reasonable rates the
Secretary need not provide for payment of claims from the first dollar
of loss. Comments are requested on other appropriate criteria for
determining whether an exclusion may be considered ``usual.''
Proposed Secs. 440.13(a)(6)-416.13(a)(8) would prescribe, in
regulations, additional insurance requirements that have been
customarily imposed by the Office in license orders in carrying out its
statutory mandate.
Comments are requested on any other terms and conditions that would
be appropriate to require in rules of general applicability.
Section 440.15--Demonstration of Compliance
As proposed, Sec. 440.15(a) would require the licensee to
demonstrate that it has complied with the insurance and allocation of
risk requirements under the proposed regulations no later than thirty
days before commencing licensed launch activities. However, a license
order may require a licensee to demonstrate compliance in less than
thirty days where the license or license order is issued less than
thirty days before the licensee intends to commence licensed launch
activities. It is strongly recommended that licensees submit required
documentation demonstrating compliance with these requirements well in
advance of the thirty-day period to ensure that the Office has adequate
opportunity to review the submission and confirm compliance by the time
the licensee wishes to commence licensed activities. It has been the
Office's experience that thirty days is a reasonable length of time to
address any issues that arise as a result of the licensee's submission.
Where a licensee uses a form of financial responsibility other than
insurance to demonstrate compliance, the Office require sixty days to
review the submission and ensure its sufficiency.
Section 440.15(b) would establish in a regulation that once the
licensee has fully demonstrated compliance with part 440 financial
responsibility and allocation of risk requirements, these requirements
preempt any conflicting or inconsistent requirements in any agreements
the licensee may have previously entered into with other agencies of
the United States concerning access to or use of United States launch
property or launch services. This express preemption is necessary
because there has been a significant amount of confusion in the past
concerning the effect of similar or additional insurance requirements
imposed by agreements governing
[[Page 39011]]
access to United States launch facilities. As stated above in the
section-by-section analysis accompanying Sec. 440.5(c), the object of
this preemption is to avoid imposing duplicative and inconsistent
obligations on the licensee, but not to relieve the licensee of
contractual or legal obligations intended to address interests other
than those served by the statute. The Office evidences its
determination that a licensee has fully complied with part 440
requirements in a letter issued to the licensee.
Under the proposal Sec. 440.15(c) would establish requirements for
a licensee to provide the Office with proof of insurance. It is
extremely important for the Office to secure adequate assurance that
the licensee has obtained the insurance required under the regulations.
However, the Office believes that it is unnecessary and impractical to
review each policy constituting part of an insurance submission to
ensure compliance. Accordingly, proposed Sec. 440.15(c) and (d) would
provide for certain certifications and representations from the
licensee and its insurer, respectively. The licensee must certify that
it has obtained insurance in conformance with the part 440 regulations
and the applicable license order. In addition, the licensee must file
with the Office one or more certificates of insurance evidencing
coverage, as prescribed by the Office, under currently effective and
properly endorsed policies applicable to licensed launch activities. A
certificate of insurance must specify any policy exclusions or
limitations in detail, in accordance with proposed Sec. 440.13(a)(5a).
In addition, the licensee would be required to certify that insurance
is not commercially available at reasonable rates in order for the
exclusion to be found usual for the type of insurance and the United
States Government to provide for payment of claims from the first
dollar of loss. The licensee would also be required to submit duly
executed waiver of claims agreements, signed by the licensee and its
customer. The licensee's certifications must be signed by a duly
authorized officer of the licensee and may be submitted in one
document.
Section 440.15(d), as proposed, would specify certain insurance
certificate requirements. Each certificate of insurance must be signed
by the insurer and accompanied by a signed opinion of the insurer
stating that the policy obtained by the licensee complies with the
requirements set forth in part 440.
Section 440.15(e) would further require the licensee to maintain,
and make available for inspection by the Office upon request, all
required policies of insurance and other documents necessary to
demonstrate compliance with part 440 requirements. Although this
section essentially imposes a mandatory recordkeeping requirement upon
the licensee, the Office believes that the maintenance and
administration of these records by the licensee is consistent with the
Office's regulatory authority to monitor compliance with the license.
Moreover, it is considerably less burdensome and time-consuming for
both the Office and the licensee than requiring submittal of all the
policy documents to the Office.
Proposed Sec. 440.15(f) recognizes that the licensee may propose to
satisfy financial responsibility requirements in a form other than
insurance. A licensee may do so, provided it otherwise satisf
FR Doc. 96-18532 Financial Responsibility Requirements for Licensed Launch Activities
ies
regulatory requirements. In practice, licensees have furnished
insurance in order to meet the financial responsibility requirements
prescribed by the Office pursuant to the statue. Under existing
insurance market conditions, third-party liability insurance is
obtainable to prescribed limits at reasonable cost. A presentation by
the Risk Management Working Group of the COMSTAC at its meeting on May
18, 1995, projected market capacity as sufficient to satisfy launch
insurance demand in 1995. In addition, property insurance, where
required, may be accommodated within the licensee's existing property
and casualty insurance program and is therefore easily obtained.
While the Act does state that a licensee may demonstrate financial
responsibility in a form other than insurance, it does not specify what
other forms of financial responsibility would be acceptable. A number
of alternatives are possible and the Office necessarily will examine
any proposal for demonstrating financial responsibility through
alternative means on a case-by-case basis to determine whether it
otherwise satisfies the requirements for demonstrating financial
responsibility.
Section 440.17--Reciprocal Waiver of Claims Requirements
This section, as proposed, establishes requirements for reciprocal
waivers of claims among launch participants. These requirements are
additional conditions of a license.
Proposed Sec. 440.17(b) would implement 49 U.S.C. 70112(b)(1),
which requires the licensee to implement reciprocal waivers of claims
with its contractors and subcontractors, its customers, and the
contractors and subcontractors of its customer, whereby each party
agrees to be responsible for loss or damage it sustains. Parties to a
waiver of claims agreement waive two types of claims: Claims for their
own property damage, and claims they may have against another launch
participant as a result of losses for property damage or bodily injury
sustained by their employees, resulting from licensed launch
activities.
49 U.S.C. 70112(b)(2) requires the Secretary of Transportation, for
the United States, its agencies involved in licensed launch activities,
and its contractors and subcontractors, to enter into reciprocal
waivers of claims with the licensee, its customer, and their respective
contractors and subcontractors involved in launch services. In the
Office's view, the purpose of this provision is to establish the
Government's waiver of claims against the private sector launch
participants and acceptance of responsibility for property damage that
exceeds the level of Government property insurance obtained by the
licensee under 49 U.S.C. 70112(a)(1)(B).
The approach taken in proposed Sec. 440.17(c), of requiring a
formal three-party agreement among the United States, the licensee and
its customer, deviates from the form suggested by a literal reading of
the Act. However, the Office believes that this approach is the most
desirable and efficient one to effectuate the overall purpose of the
statutory reciprocal waiver of claims requirements: To limit the
universe of potential claims that could arise out of licensed launch
activities, and to eliminate the need for each participant in licensed
launch activities to obtain separate liability insurance protection
against such claims. This approach has also proved manageable for the
launch services industry in executing agreements with customers and the
U.S. Government.
Section 440.17(c), as proposed, would require that the licensee,
its customer and the Department of Transportation on behalf of the U.S.
Government enter into a three-party agreement as set forth in appendix
II to part 440. The form of the Agreement for Waiver of Claims and
Assumption of Responsibility (Agreement) presented in Appendix II
deviates from the current practice of the Office and is intended to
clarify the scope of the waiver that the United States provides when it
is involved in licensed launch activities, and the waiver it requires
in return. Simply put, the Department of Transportation, on behalf of
the United States, its agencies involved in licensed launch activities,
and its contractors and subcontractors, would agree to waive claims
against the
[[Page 39012]]
licensee, its customer and the contractors and subcontractors of the
licensee and its customer, and accept responsibility for losses to
property of the Government launch participants, only to the extent that
such claims exceed the level of insurance the licensee must obtain
under Sec. 440.9(d). As a reciprocal undertaking, the licensee and its
customer each would waive claims against the other party and the United
States and its agencies involved in licensed launch activities, and
against the contractors and subcontractors of each of those parties,
and accept responsibility for damage to its own property and losses
sustained by its own employees, respectively.
Whereas other parties to the three-party reciprocal waiver of
claims agreement would agree to waive and accept responsibility for
claims for property damage or bodily injury sustained by its employees,
the U.S. Government need not do so. Because Government personnel are
third parties, their claims for bodily injury or property damage would
be compensated by the third-party liability insurance the licensee is
required to obtain. Claims in excess of required insurance would become
eligible for payment by the Government under the payment of excess
claims provisions of the statute. 49 U.S.C. 70113. Although the
approach reflected in the proposed form of Agreement is not currently
reflected in existing license orders, the Office believes it more
accurately reflects the allocation of risks intended by the statute and
correctly responds to the Government's inability under appropriations
law to accede to unfunded contingent liability, unless so authorized.
In addition, under the proposed from of the Agreement, the licensee
and its customer would further agree to extend, or flow down, the
waiver obligations to their respective contractors and subcontractors,
and all three principals to the Agreement--including the Department--
would agree to indemnify the other parties from claims by their
contractors and subcontractors arising out of the indemnifying party's
failure properly to implement or extend the waiver.
One launch company has objected to the indemnification provisions
required under the three-party reciprocal waiver of claims agreement
currently employed by the Office and included in this proposal for all
interparty waiver of claims agreements. In the launch company's view,
this provision is not required by statute and adds liability and risk
over and above that imposed by a breach of contract remedy, which the
launch company believes would be the appropriate remedy for failure to
flow down the cross-waiver requirement.
The Office's view is that a contractual undertaking to indemnify
another party for one's own failure to implement properly the
agreements flow-down requirements is preferable. It would provide a
strong incentive for parties to be attentive to the flow-down
requirement. This is significant because of the limitation on the
Office's ability to monitor each licensee's and customer's cross-
waivers with their myriad contractors and subcontractors. It would also
provide a ready remedy for parties who sustain loss because of another
party's failure to flow down the cross-waiver requirement.
In those situations where the licensee's customer is a Government
agency, the provisions applicable to the customer are the same as those
for an agency involved in licensed launch activities for purposes of
the reciprocal waiver of claims requirement. However, because the
Government property insurance requirement does not cover the Government
payload, the Government waives claims for property damage and assumes
responsibility for damage or loss to the payload from the first dollar
of loss.
Some concern has been expressed within the commercial space launch
industry over the assumption of responsibility for employee losses
required of signatories to the waiver of claims agreement. In the
Office's view, this is a risk that can be effectively managed without
imposing unreasonable economic burdens on launch participants.
The assumption of responsibility by nongovernmental launch
participants for their own employees' losses represents a mutual
undertaking by each entity to cover losses of its employees. Although
employees of nongovernmental launch participants would not be ``third
parties'' whose claims are compensated under the liability insurance
required under the proposed regulations, launch participants could
protect themselves by ensuring that their general liability policies
would respond to compensate such claims. The Office believes that a
variety of measures may be utilized by launch participants to manage
the mandatory assumption of responsibility. At the same time, the
objective of the risk allocation scheme--to limit the need for each
launch participant to obtain broad liability coverage to protect itself
from the universe of potential third-party claims--would be realized.
The Office requests comments on its approach to implementing the waiver
of claims and assumption of responsibility requirements of the Act. In
doing so, commenters should bear in mind that there is no indication in
the Act or its legislative history that employees of nongovernmental
launch participant, unlike employees of Government launch participants,
are intended to be included in the definition of ``third parties'' for
purposes of these regulations. Nor is there any indication that the
Government would agree to pay their claims as excess third-party claims
(so-called ``indemnification'') to the extent employees' claims exceed
required insurance. Moreover, considering employees of launch
participants as third parties under the statutory definition would run
counter to the assumption of responsibility for their loses mandated by
the statute. Also, if such employees were included as ``third
parties,'' the amount of third-party liability coverage the licensee
would be required to obtain would likely increase significantly.
It is important to note that not all private participants in
licensed launch activities are necessarily expected to accede to the
reciprocal waiver of claims scheme in order to effect its purpose. Only
those participants who have their personnel or property involved in
licensed launch activities, and who may make claims against other
participants as a result of loss or damage sustained by their personnel
or property in the event of an accident, should be expected to enter
into reciprocal waivers of claims. If all participants having personnel
or property involved in licensed launch activities have acceded to the
reciprocal waiver scheme, they would be foreclosed from making any
claims against each other.
A question has been raised by a payload company as to the Office's
requirements when multiple customers contract with a launch operator
for launch services or there is more than one customer's payload on the
launch manifest for a single launch. In those cases, executing a single
waiver of claims agreement that includes each customer as a party to
the agreement, or executing separate but appropriately modified
agreements, would serve to ensure all parties have been included and
protected as intended.
There has been some question as to the meaning and appropriate
implementation of the provision in 49 U.S.C. 70112(b)(2), which
requires the Secretary to enter into reciprocal waivers of claims
``for'' the Government's contractors and subcontractors involved in
launch services. The Office has interpreted this provision to mean that
contractors and
[[Page 39013]]
subcontractors of the United States are intended to be included as
beneficiaries of the waiver of claims by the licensee, the customer and
their respective contractors and subcontractors; and that the United
States, through its appropriate agencies involved in licensed
activities, is responsible for protecting their interests.
The proposed form of Agreement set forth in Appendix II to the
proposed regulation continues the current practice of excluding from
the waiver and assumption of responsibility claims for bodily injury or
property damage resulting from willful misconduct of the parties. It
also continues the current practice of requiring that parties waive
claims, regardless of fault. Questions have been raised as to whether
claims resulting from gross negligence are also excluded from the
intended scope of the waiver. The Office believes that carving out an
exception for gross negligence from the reciprocal waiver of claims
could result in parties attempting, in effect, to nullify or avoid
required waivers of claims by alleging sufficient evidence of gross
negligence to withstand legal challenge, thereby defeating one of the
purposes of the Agreement. The Office has not elected to do so in the
proposed form of Agreement.
The Office believes its approach is consistent with the statutory
intent of requiring launch participants to enter into a no-fault waiver
of claims agreement in order to eliminate the need for additional
insurance to protect against claims for damage caused by a party to the
launch to any other party to the launch and to limit the total universe
of claims resulting from a launch. Comments are solicited from the
public on the proposed Agreement implementing 440.11(b), which is set
out in Appendix II to the proposed regulation. If differs from the form
that currently accompanies financial responsibility license orders but
more closely conforms to the Office's view of the objectives of the
statutory waiver requirements. A part to the Agreement wishing to
modify its form may petition the Associate Administrator under the
procedures set forth in 404.3 of the Regulations.
Section 440.19--United States Payment of Excess Third-Party Liability
Claims
Payment by the United States of successful claims of third parties
resulting from licensed launch activities, as provided in 49 U.S.C.
70113, is subject to appropriations laws or enactment of other
legislative authority providing for the payment of claims submitted as
part of a compensation plan prepared by the Office. The total amount of
excess third-party claims that may be paid by the United States will
not be greater than $1,500,000,000 (as adjusted for inflation occurring
after January 1, 1989) above the amount of insurance required under
Sec. 440.9(c). However, to the extent a third-party claim results from
the willful misconduct of a launch participant, the Government is not
required to provide for payment of the claim. The statute limits this
exception to willful misconduct by a licensee or transferee; however,
the Office believes that any launch participant's willful misconduct
relieves the Government from providing for payment of third-party
claims against that launch participant under 49 U.S.C. 70113(a)(2).
In the event a successful claim is not covered by required
insurance due to a policy exclusion that is found to be usual because
insurance is not commercially available at reasonable cost, the
Government would pay such claims from the first dollar of loss up to
$1,500,000,000 (as adjusted for inflation occurring after January 1,
1989), again, subject to appropriate legislative action.
Excluded from the statutory obligation of the Secretary of
Transportation to provide for payment of successful third-party claims
are claims against contractors and subcontractors of the United States
and its agencies involved in licensed activities. It has been suggested
that this exclusion was inadvertent, and the Office believes that this
is the better view. On the other hand, the Office is mindful of the
availability of Government indemnification that may benefit such
contractors and subcontractors pursuant to statutes other than 49
U.S.C. Subtitle IX. However, provision of this protection by the
Government to its contractors and subcontractors may be made only under
certain narrow circumstances, and is not routinely done. Where it is
not done, a Government contractor or subcontractor would be required to
purchase liability insurance to protect itself from third-party claims
in excess of the liability policy obtained by the licensee, and would
pass the cost through to the Government as an allowable cost under the
contract. Therefore, absent legislative clarification, the Office is of
the view that the United States would afford its contractors and
subcontractors the protections offered to other launch participants
under the payment of excess claims provisions of the statute, after the
limits of the liability policy obtained by the licensee have been
reached. However, this approach is not intended to interfere with or
encumber the Government's enforcement of contractual rights and
remedies with respect to its contractors. Public comment is sought as
to whether this interpretation of 49 U.S.C. 70113 is in keeping with
the overall risk allocation scheme of the Act.
Under proposed Sec. 440.19(d), the Government would pay claims from
the first dollar of loss upon expiration of the prescribed period of
time for which the licensee is responsible for maintaining financial
responsibility. Industry representatives have suggested that the
Government's obligation to pay claims remains for three years following
the launch event. However, the statutory payment of excess claims
provision is limited to a successful claim of a third party against a
launch participant ``resulting from an activity carried out under the
license * * * for death, bodily injury or property damage or loss
resulting from an activity carried out under the license.'' The statute
further limits payment of excess claims ``to the extent the total
amount of successful claims related to one launch'' exceeds the
required amount of third-party liability insurance and is not more than
$1,500,000,000 above that amount. 49 U.S.C. 70113(a). The Office
believes that these provisions may be intended as a limitation on the
claims that would be eligible for so-called indemnification by the
Government. The Office requests comments on the nexus that must exist
between a third-party claim and the licensed launch activity in order
for the claim to be eligible for payment by the Government.
Proposed Sec. 440.19(e) would establish procedural conditions for
invoking the Government's payment of excess third-party claims
provisions of the Act, including notice and participation or assistance
in the defense by the United States of any claim or lawsuit by a third
party arising out of licensed launch activities. This is consistent
generally with the Government's usual practice for responding to
similar claims.
Some industry representatives, as well as the COMSTAC, have
recommended that the statutory provisions for Government payment of
excess third-party claims should be memorialized in a contract between
the United States Government and the intended beneficiaries of these
provisions, similar to the indemnification agreements the Nuclear
Regulatory Commission is required to enter into on behalf of the United
States under the 1988 Price-Anderson Amendments, Pub. L. 100-408, to
protect licensed operators of nuclear reactors from catastrophic
losses. The Office believes that 49 U.S.C. 70113
[[Page 39014]]
does not constitute or establish an indemnification obligation on the
part of the United States like that set forth in the Price-Anderson
regime which, among other things, expressly requires a contractual
undertaking and specifies necessary contractual provisions. 42 U.S.C.
2210. In contrast, 49 U.S.C. 70113 is largely procedural in nature. Any
payment that the Secretary proposes be made under the statute is
contingent on Congressional approval of a compensation plan and
appropriation of funds or other legislative authority. Accordingly, the
recommendation to reflect the Government's agreement for payment of
excess claims in a contract is not included in this proposal.
As provided the statute and proposed section 440.19(f), in the
event of catastrophic losses, the Office would prepare a compensation
plan specifying the total amount of claims, suggesting sources of
funding that may be available to pay the claims, and proposing any
legislation necessary to authorize appropriation of funds and otherwise
implement the plan. In addition, as provided by the Act, the Office is
authorized to withhold payment of a claim that has not been decided by
a Federal court if the Office finds the amount is unreasonable.
The Office welcomes comments from the public on appropriate
implementation of 49 U.S.C. 70113 payment provisions. Comments would
assist the Office in developing a future rulemaking that would address,
more specifically, the mechanism for seeking payment by the Government
of excess third-party claims.
Statutory Authority for This Proposed Rule
This proposal is issued pursuant to 49 U.S.C. Subtitle IX, ch.
701--Commerical Space Launch Activities, sections 70101-70119, formerly
the Commercial Space Launch Act of 1984 (CSLA), as amended (49 U.S.C.
App. 2601-2623). In 1988, Congress amended the CSLA by replacing
general insurance requirements with a detailed financial responsibility
and allocation of risk regime for licensed operations. The provisions,
referred to as the 1988 Amendments, include procedures whereby the
United States Government requires risk-based insurance to compensate
for third-party liability and Government property damage claims, waives
certain claims for its property damage and, subject to an appropriation
law or other legislative authority, agrees to provide for payment of
third-party claims in excess of required liability insurance. In
addition, the 1988 Amendments require launch participants to enter into
reciprocal waivers of claims in which the parties agree to absorb
certain losses and the nongovernmental launch participants agree to be
responsible for claims of their employees for damage or loss.
The Office has been implementing the 1988 Amendments on a case-by-
case basis, through license orders issued with each license authorizing
commercial space launch activities. Based upon its experience, the
Office proposes to standardize requirements into rules of general
applicability, wherever practicable.
Under 49 U.S.C. Subtitle IX, ch. 701, the Secretary is responsible
for licensing and otherwise regulating commercial space launches and
the commercial operation of launch sites carried out within the United
States or by its citizens. In doing so, the Secretary is charged with
protecting public health and safety, safety of property, and United
States national security and foreign policy interests, and must ensure
compliance with international treaty obligations of the United States,
including the United Nations Treaties on Outer Space. The Secretary is
also responsible for establishing requirements for proof of financial
responsibility and other assurances necessary to protect the Government
and its agencies and personnel from certain losses as a result of
licensed activities involving Government facilities or personnel. 49
U.S.C. 70112(e).
The Associate Administrator for Commercial Space Transportation of
the Federal Aviation Administration was delegated the Secretary's
authority for carrying out the Secretary's responsibilities under the
statute, effective November 15, 1995. The Commercial Space
Transportation Licensing Regulations set forth in 14 CFR Ch. III apply
to regulatory activities administered by the Office.
Paper Work Reduction Act
14 CFR part 440, as proposed, contains information collection
requirements. In accordance with the Paperwork Reduction Act of 1995,
44 U.S.C. 3501 et seq., the information collection requirements
associated with this rule are being submitted to the Office of
Management and Budget for review. The required information will be used
to determine appropriate levels of financial responsibility and to
determine whether licensees have complied with financial responsibility
requirements as set forth in regulations and in a license order issued
by the Office. The information to be collected includes data required
for determining maximum probable loss, the three-party cross-waiver of
claims agreement and evidence of insurance or other form of financial
responsibility. Launch licensees must demonstrate financial
responsibility at least 30 days before commencing licensed launch
activities. The frequency of required submissions may depend upon the
frequency of licensed launch activities; however, a license may
authorize more than one launch. Respondents are all licensees
authorized to conduct licensed launch activities. In addition to the
licensee, its customers and the contractors and subcontractors of each
are required to enter into reciprocal waiver of claims agreements.
Estimated Average Burden Hours Per Respondent: 261 hours.
The Office considers comments by the public on the proposed
collection of information in order to evaluate the accuracy of the
Office's estimate of the burden of the proposed collection of
information, the quality, utility and clarity of the information to be
collected, and possible ways to minimize the burden of the collection.
In submitting comments to OMB, commenters should keep in mind that
OMB is required to make a decision concerning the collection of
information contained in the proposed regulations between 30 and 60
days after publication of this document in the Federal Register.
Comments on the proposed information collection requirements should
be submitted to: Office of Management and Budget, Washington, DC 20503,
Attention: Desk Officer for the Federal Aviation Administration, U.S.
Department of Transportation. It is requested that comments sent to OMB
also be sent to the rulemaking docket for this proposed action, Room
612, Federal Aviation Administration, U.S. Department of
Transportation, 800 Independence Avenue, SW., Washington, DC 20591.
Impact Analyses
Proposed changes to Federal regulations must undergo several
economic analyses. First, Executive Order 12866 directs that agencies
shall propose or adopt a regulation only upon a determination that the
benefits of the intended regulation justify its costs. Second, the
Regulatory Flexibility Act of 1980 requires agencies to analyze the
economic effect of regulatory changes on small entities. Third, the
Office of Management and Budget (OMB) directs agencies to assess the
effect of regulatory changes on international trade. In addition, under
regulatory policies and procedures of the Department of Transportation
(44 FR
[[Page 39015]]
11034; February 26, 1979), this proposed rule is considered significant
because there is substantial public interest in the rulemaking. This
rule has been reviewed by OMB under Executive Order 12866.
Economic Impacts
Executive Order 12866 directs that each Federal agency proposing to
adopt a regulation may do so only upon a reasoned determination that
the benefits of the intended regulation justify its costs. The Office
has prepared a detailed analysis of the economic effects that would be
associated with the proposed rule. Its findings are set forth in an
economic impact assessment, copies of which are available from the FAA
Rules Docket. As part of its analysis, the Office considered
alternatives, taking into account that the principal requirements of
the proposed rule are mandated by statute.
Under the 1988 Amendments, as implemented by the Office in
regulations, required insurance would be available to compensate third
parties, including certain Government personnel, who may suffer bodily
injury or property damage as a result of licensed launch activities.
Additionally, required insurance protects all launch participants from
third party claims and provides cost savings to each participant by
relieving them of the need to obtain separate liability insurance
covering those risks. Potential costs of litigation should be
eliminated as a result of required cross-waivers of claims among launch
participants. There is a reallocation of expected costs of claims of
$20,000 over a four-year period from the U.S. commercial space launch
industry to the United States, as a consequence of the Government's
payment of excess third-party claims under the Act, up to a $1.5
billion exposure for liability. Additional costs to the Government to
administer requirements imposed under the 1988 Amendments and the
proposed regulations are expected to have an upper limit of $673,000
over four years.
Impacts on Small Entities
The Regulatory Flexibility Act of 1980 (RFA) was enacted by
Congress to ensure that small entities are not unnecessarily or
disproportionately burdened by Federal regulations. The Office analyzed
the economic impact of the proposed regulations on small commercial
entities, as part of its economic impact assessment. For purposes of
the analysis, the Office utilized the Standard Industrial
Classification codes and size standards for business entities relating
to space vehicles, which define small entities as those comprised of
fewer than 1000 employees. 13 CFR 121.601. Because the commercial
launch industry is evolving new ways of doing business, the Office also
considered as small commercial entities those firms offering or
planning to offer commercial space transportation services that have
not had long-term relationships with the U.S. Government as a
contractor-manufacturer of expendable launch vehicles or components, or
have not received rights to use government-developed launch vehicles.
These are few in number.
The economic impacts on small commercial entities resulting from
the 1988 Amendments to the Act are largely benefits. The Office's
analysis reveals only non-quantifiable costs to commercial entities as
a result of the proposed regulations. They include minimal paperwork
costs and costs that may result from having to obtain insurance in
advance of licensed launch activities to demonstrate compliance with
financial responsibility requirements. Neither of these costs would
have a disproportionate impact on small commercial entities. Based upon
the Office's economic impact assessment, the Office has determined that
the proposed rule would not have a significant economic impact on a
substantial number of small entities.
International Trade Impact Assessment
The impact of the proposed rule on international trade is expected
to be beneficial. The proposal rule would codify in regulations the
financial responsibility and allocation of risk requirements imposed
under the 1988 Amendments to the Commercial Space Launch Act of 1984,
codified at 49 U.S.C. Subtitle IX, ch. 701. One of the primary
objectives of the 1988 Amendments was to enable U.S. launch services
providers to compete more effectively with foreign competitors.
Customers may enjoy enhanced understanding of the benefits and
responsibilities that attend licensed launch activities carried out
within the United States or by its citizens. By clarifying the U.S.
Government's agreement, subject to appropriations laws or other
additional legislative authority, to provide for the payment of excess
third-party claims above required insurance, the proposed regulations
may enable U.S. companies to negotiate more effectively with foreign
customers who must choose between U.S. and other competing launch
services providers.
Federalism Implications
The proposed regulations would not have substantial direct effects
on the states, on the relationship between the Federal government and
the states, or on the distribution of power and responsibilities among
the various levels of government. Therefore, in accordance with
Executive Order 12612, it is determined that the proposed regulation
does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
List of Subjects in 49 CFR Part 440
Armed forces; Claims; Federal building and facilities; Government
property; Indemnity payments; Insurance; Reporting and recordkeeping
requirements; Rockets; Space transportation and exploration.
Proposed Regulation
In consideration of the foregoing, the Office of the Associate
Administrator for Commercial Space Transportation proposes to amend the
Commercial Space Transportation Licensing Regulations, 14 CFR Ch. III,
as follows:
1. Subchapter C of Chapter III, Title 14, Code of Federal
Regulations, would be amended by adding a new part 440 to read as
follows:
PART 440--FINANCIAL RESPONSIBILITY
Subpart A--Financial Responsibility for Licensed Launch Activities
Sec.
440. 1 Scope; Basis.
440. 3 Definitions.
440. 5 General.
440. 7 Determination of maximum probable loss.
440. 9 Insurance requirements for licensed launch activities.
440. 11 Duration of coverage; modifications.
440. 13 Standard conditions of insurance coverage.
440. 15 Demonstration of compliance.
440. 17 Reciprocal waiver of claims requirement.
440. 19 United States payment of excess third-party liability
claims.
Authority: 49 U.S.C. 70101-70119; 49 CFR 1.47.
Sec. 440.1 Scope; Basis.
This part sets forth financial responsibility and allocation of
risk requirements applicable to commercial space launch activities that
are authorized to be conducted under a launch license issued pursuant
to this subchapter.
Sec. 440.3 Definitions.
(a) For purposes of this part--
(1) Bodily injury means physical injury, sickness, disease,
disability, shock, mental anguish, or mental injury sustained by any
person, including death.
[[Page 39016]]
(2) Contractors and subcontractors means those entities that are
involved at any tier, directly or indirectly, in licensed launch
activities, and includes suppliers of property and services, and the
component manufacturers of a launch vehicle or payload.
(3) Customer means the person who procures launch services from the
licensee, and any person to whom the customer has sold, leased,
assigned, or otherwise transferred its rights in the payload (or any
part thereof) to be launched by the licensee, including a conditional
sale, lease, assignment, or transfer of rights.
(4) Federal range facility means a Government-owned installation at
which launches take place.
(5) Financial responsibility means statutorily required financial
ability to meet liability as required under 49 U.S.C 70101-70119.
(6) Government personnel means employees of the United States, its
agencies, and its contractors and subcontractors, involved in launch
services for licensed launch activities. Employees of the United States
include members of the Armed Forces of the United States.
(7) Hazardous operations means activities, processes, and
procedures that, because of the nature of the equipment, facilities,
personnel, or environment involved or function being performed, may
result in bodily injury or property damage.
(8) Liability means a legal obligation to pay claims for bodily
injury or property damage resulting from licensed launch activities.
(9) License means an authorization to conduct licensed launch
activities, issued by the Office under this subchapter.
(10) Licensed launch activities means the launch of a launch
vehicle as defined in a regulation or license issued by the Office and
carried out pursuant to a license.
(11) Maximum probable loss (MPL) means the greatest dollar amount
of loss for bodily injury or property damage that is reasonably
expected to result from licensed launch activities;
(i) Losses to third parties, excluding Government personnel, that
are reasonably expected to result from licensed launch activities are
those having a probability of occurrence on the order of no less than
one in ten million.
(ii) Losses to Government property and Government personnel that
are reasonably expected to result from licensed launch activities are
those having a probability of occurrence on the order of no less than
one in one hundred thousand.
(12) Office means the Associate Administrator for Commercial Space
Transportation of the Federal Aviation Administration, U.S. Department
of Transportation.
(13) Property damage means partial or total destruction,
impairment, or loss of tangible property, real or personal.
(14) Regulations means the Commercial Space Transportation
Licensing Regulations, codified at 14 CFR Ch. III.
(15) Third party means.
(i) Any person other than:
(A) The United States, its agencies, and its contractors and
subcontractors involved in launch services for licensed launch
activities;
(B) The licensee and its contractors and subcontractors involved in
launch services for licensed launch activities; and
(C) The customer and its contractors and subcontractors involved in
launch services for licensed launch activities.
(ii) Government personnel, as defined in this section, are third
parties. For purposes of these regulations, employees of other launch
participants identified in paragraphs (a)(15)(i)(B) and (C) of this
section are not third parties.
(16) United States means the United States Government, including
its agencies.
(b) Except as otherwise provided in this section, any term used in
this part and defined in 49 U.S.C. 70101-70119, or in Sec. 401.5 of
this chapter shall have the meaning contained therein.
Sec. 440.5 General.
(a) No person shall commence or conduct launch activities that
require a license unless that person has obtained a license and fully
demonstrated compliance with the financial responsibility and
allocation of risk requirements set forth in this part.
(b) The Office shall prescribe the amount of financial
responsibility a licensee is required to obtain, and any additions to
or modifications of the amount, in a license order issued concurrently
with or subsequent to the issuance of a license.
(c) Demonstration of financial responsibility under this part shall
not relieve the licensee of ultimate responsibility for liability,
loss, or damage sustained by the United States resulting from licensed
launch activities, except to the extent that:
(1) Liability, loss, or damage sustained by the United States
results from willful misconduct of the United States or its agents,
including Government personnel;
(2) Covered claims by third parties for bodily injury or property
damage arising out of any particular launch exceed the amount of
financial responsibility required under Sec. 440.9(c) of this part and
do not exceed $1,500,000,000 (as adjusted for inflation occurring after
January 1, 1989) above such amount, and are payable pursuant to 49
U.S.C. 70113 and Sec. 440.19 of this part;
(3) Covered claims for property loss or damage exceed the amount of
financial responsibility required under Sec. 440.9(e) of this part; or
(4) The licensee has no liability for claims by third parties for
bodily injury or property damage arising out of any particular launch
that exceed $1,500,000,000 (as adjusted for inflation occurring after
January 1, 1989).
(d) A licensee's failure to comply with the requirements in this
part may result in suspension or revocation of a license, and subjects
the licensee to civil penalties as provided in part 405 of this
chapter.
Sec. 440.7 Determination of maximum probable loss.
(a) The Office shall determine the maximum probable loss (MPL) from
claims by a third party for bodily injury or property damage, and the
United States, its agencies, and its contractors and subcontractors for
covered property damage or loss, resulting from licensed launch
activities. The maximum probable loss determination forms the basis for
financial responsibility requirements issued in a license order.
(b) The Office issues its determination of maximum probable loss no
later than ninety days after a licensee or transferee has requested a
determination and submitted all information required by the Office to
make the determination. The Office shall consult with Federal agencies
that are involved in, or whose personnel or property are exposed to
risk of damage or loss as a result of, licensed launch activities
before issuing a license order prescribing financial responsibility
requirements and shall notify the licensee or transferee if timely
issuance of the MPL determination is not possible due to interagency
consultation.
(c) Information requirements for obtaining a maximum probable loss
determination are set forth in Appendix I to this part. Any person
requesting a determination of maximum probable loss shall submit
information in accordance with Appendix I requirements, unless the
Office has waived requirements. In lieu of submitting required
information, a person requesting a maximum probable loss determination
may designate and
[[Page 39017]]
certify certain information previously submitted for a prior
determination as complete, valid, and equally applicable to its current
request. The requester is responsible for the continuing accuracy and
completeness of information submitted under this part and shall
promptly report any changes in writing.
(d) The Office shall amend a determination of maximum probable loss
required under this section at any time prior to completion of licensed
launch activities as warranted by supplementary information provided to
or obtained by the Office after the MPL determination is issued. Any
change in financial responsibility requirements as a result of an
amended MPL determination shall be set forth in a license order.
(e) The Office may make a determination of maximum probable loss at
any time other than as set forth in paragraph (b) of this section upon
request by any person.
Sec. 440.9 Insurance requirements for licensed launch activities.
(a) As a condition of each launch license, the licensee shall
comply with insurance requirements set forth in this section and in a
license order issued by the Office, or may otherwise demonstrate the
required amount of financial responsibility.
(b) The licensee shall obtain and maintain in effect a policy or
policies of liability insurance, in an amount determined by the Office
under paragraph (c) of this section, that protects the following
persons as additional insureds to the extent of their respective
potential liabilities against claims by a third party for bodily injury
or property damage resulting from licensed launch activities:
(1) The licensee, its customer, and their respective contractors
and subcontractors;
(2) The United States, its agencies, and its contractors and
subcontractors; and
(3) Government personnel.
(c) The Office shall prescribe for each licensee the amount of
insurance required to compensate the total of third-party claims for
bodily injury or property damage resulting from licensed launch
activities in connection with any particular launch. The amount of
insurance required is based upon the Office's determination of maximum
probable loss; however, it will not exceed the lesser of:
(1) $500 million; or
(2) The maximum liability insurance available on the world market
at a reasonable cost, as determined by the Office.
(d) The licensee shall obtain and maintain in effect a policy or
policies of insurance, in an amount determined by the Office under
paragraph (e) of this section, that covers claims by the United States,
it agencies, and its contractors and subcontractors for property damage
or loss resulting from licensed launch activities. Property covered by
this insurance shall include all property owned, leased, or occupied
by, or within the care, custody, or control of, the United States, its
agencies, and its contractors and subcontractors, at a Federal range
facility. Insurance shall protect the United States, its agencies, and
it contractors and subcontractors.
(e) The Office shall prescribe for each licensee the amount of
insurance required to compensate claims for property damage under
paragraph (d) of this section resulting from licensed launch activities
in connection with any particular launch. The amount of insurance is
based upon a determination of maximum probable loss; however, it will
not exceed $100 million.
(f) In lieu of a policy of insurance, a licensee may demonstrate
financial responsibility in another manner meeting the terms and
conditions applicable to insurance as set forth in this part. The
licensee shall describe in detail the method proposed for demonstrating
financial responsibility and how it assures that the licensee is able
to cover claims as required under this part.
Sec. 440.11 Duration of coverage; modifications.
(a) Insurance coverage required under Sec. 440.9, or other form of
financial responsibility, shall attach upon commencement of licensed
launch activities, and remain in full force and effect until the later
of completion of licensed launch activities as defined by the Office in
regulations, or until risk to third parties and Government property as
a result of licensed launch activities is sufficiently small, as
determined by the Office through the risk analysis conducted to
determine MPL, that financial responsibility is no longer necessary.
The required duration of financial responsibility shall be specified in
a license order, and may be amended in the event a launch anomaly
results in additional risks to third parties or Government property.
(b) Financial responsibility required under this part may not be
replaced, canceled, changed, withdrawn, or in any way modified to
reduce the limits of liability or the extent of coverage, nor expire by
its own terms, prior to the time specified in a license order, unless
the Office is notified in advance and expressly approves the
modification.
Sec. 440.13 Standard conditions of insurance coverage.
(a) Insurance obtained under Sec. 440.9 shall comply with the
following terms and conditions of coverage:
(1) Bankruptcy or insolvency of an insured, including any
additional insured, shall not relieve the insurer or any or its
obligations under any policy.
(2) Policy limits shall apply separately to each occurrence and to
the total claims arising out of licensed launch activities in
connection with any particular launch.
(3) Except as provided herein, each policy shall pay claims from
the first dollar of loss, without regard to any deductible, to the
limits of the policy. A licensee may obtain a policy containing a
deductible amount if the amount of the deductible is placed in an
escrow account or otherwise demonstrated to the unobligated,
unencumbered funds of the licensee, available to compensate claims at
any time claims may arise.
(4) Policies shall not be invalidated by any action or inaction of
the licensee or any additional insured, including nonpayment by the
licensee of the policy premium, and shall insure the licensee and each
additional insured regardless of any breach or violation of any
warranties, declarations, or conditions contained in the policies by
the licensee or any additional insured (other than a breach of
violation by the licensee or an additional insured, and then only as
against that licensee or additional insured).
(5) Exclusions from coverage shall be specified.
(6) Insurance shall be primary without right of contribution from
any other insurance that is carried by the licensee or any additional
insured. Each policy shall expressly provide that all of its
provisions, except the policy limits, operate in the same manner as if
there were a separate policy with and covering the licensee and each
additional insured.
(7) Each policy shall be placed with an insurer of recognized
reputation and responsibility that is licensed to do business in any
State, territory, possession of the United States, or the District of
Columbia.
(8) Except as to claims resulting from the willful misconduct of
the United States or its agents, the insurer shall waive any and all
rights of subrogation against each of the parties protected by required
insurance.
(b) [Reserved]
[[Page 39018]]
Sec. 440.15 Demonstration of compliance.
(a) A licensee must submit evidence of financial responsibility and
compliance with allocation of risk requirements under this part, as
follows, unless a licensee order specifies fewer days due to the
proximity of the licensee's intended date for commencement of licensed
launch activities:
(1) The three-party cross-waiver of claims agreement required under
Sec. 440.17(c) of this part shall be submitted at least 30 days before
commencement of licensed launch activities;
(2) Evidence of insurance shall be submitted at least 30 days
before commencement of licensed launch activities; and
(3) Evidence of financial responsibility in a form other than
insurance, ad provided under Sec. 440.9(f) of this part, shall be
submitted at least 60 days before commencement of licensed launch
activities.
(b) Upon a complete demonstration of compliance with financial
responsibility and allocation of risk requirements under this part, the
requirements shall preempt any provisions in agreements between the
licensee and an agency of the United States governing access to or use
of United States launch property or launch services for licensed launch
activities which address financial responsibility, allocation of risk
and related matters covered by 49 U.S.C. 70112, 70113.
(c) A licensee must demonstrate compliance as follows:
(1) The licensee shall provide proof of insurance required under
Sec. 440.9 by:
(i) Certifying to the Office that it has obtained insurance in
compliance with the requirements of this part and any applicable
license order;
(ii) Filing with the Office one or more certificates of insurance
evidencing insurance coverage by one or more insurers under a currently
effective and properly endorsed policy or policies of insurance,
applicable to licensed launch activities, on terms and conditions and
in amounts prescribed under this part, and specifying policy
exclusions;
(iii) In the event of any policy exclusions or limitations of
coverage that may be considered usual under Sec. 440.19(c) of this
part, or for purposes of implementing the Government's waiver of claims
for property damage under the Act, certifying that insurance covering
the excluded risks is not commercially available at reasonable cost;
and
(iv) Submitting to the Office, for signature by the Department on
behalf of the United States Government, the duly executed waiver of
claims and assumption of responsibility agreement required by
Sec. 440.17(c) of this part.
(2) Certifications required under this section shall be signed by a
duly authorized officer of the licensee.
(d) Certificate(s) of insurance required under paragraph (c)(1)(ii)
of this section shall be signed by the insurer issuing the policy and
accompanied by an opinion of the insurer that the insurance obtained by
the licensee complies with the specific requirements for insurance set
forth in this part and any applicable license order.
(e) The licensee shall maintain, and make available for inspection
by the Office upon request, all required policies of insurance and
other documents necessary to demonstrate compliance with this part.
(f) In the event the licensee demonstrates financial responsibility
using means other than insurance, as provided under Sec. 440.9(f) of
this part, the licensee shall provide proof that it has met the
requirements set forth in this part and in a license order issued by
the Office.
Sec. 440.17 Reciprocal waiver of claims requirements.
(a) As a condition of each launch license, the licensee shall
comply with reciprocal waiver of claims requirements as set forth in
this section.
(b) The licensee shall implement reciprocal waivers of claims with
its contractors and subcontractors, its customer(s) and the customer's
contractors and subcontractors, under which each party waives and
releases claims against the other parties to the waivers and agrees to
assume responsibility for property damage it sustains and for bodily
injury or property damage sustained by its own employees resulting from
licensed launch activities, regardless of fault.
(c) For each licensed launch in which the U.S. Government, its
agencies, or its contractors and subcontractors is involved in licensed
launch activities or where property insurance is required under
Sec. 440.9(d) of this part, the Department of Transportation, the
licensee, and its customer shall enter into a three-party reciprocal
waiver of claims agreement in the form set forth in Appendix II to this
part. If the licensee's customer is an agency of the U.S. Government,
the Agreement shall be modified to reflect that, for purposes of the
Agreement, the customer is a Government agency involved in licensed
launch activities except that the government customer waives claims and
accepts responsibility for damage or loss to its property.
(d) The licensee, its customer, and the United States but only to
the extent provided in legislation, shall agree in any waiver of claims
agreements required under this part to indemnify another party to the
agreement from claims by the indemnifying party's contractors and
subcontractors arising out of the indemnifying party's failure to
implement properly the waiver requirement.
Sec. 440.19 United States payment of excess third-party liability
claims.
(a) The United States shall pay successful claims (including
reasonable expenses of litigation or settlement) of a third party
against the licensee, the customer, and the contractors and
subcontractors of the licensee and the customer, and the contractors
and subcontractors of the United States and its agencies involved in
licensed launch activities to the extent provided in an appropriation
law or other legislative authority providing for payment of claims in
accordance with 49 U.S.C. 70113, and to the extent the total amount of
such claims arising out of any particular launch:
(1) Exceeds the amount of insurance required under Sec. 440.9(b);
and
(2) Is not more than $1,500,000,000 (as adjusted for inflation
occurring after January 1, 1989) above that amount.
(b) Payment by the United States under paragraph (a) of this
section shall not be made for any part of such claims for which the
bodily injury or property damage results from willful misconduct by the
party seeking payment.
(c) The United States shall provide for payment of claims by third
parties for bodily injury of property damage that are payable under 49
U.S.C. 70113 and not covered by required insurance under Sec. 440.9(b),
without regard to the limitation under paragraph (a)(1) of this
section, because of an insurance policy exclusion that is usual. A
policy exclusion is considered usual only if insurance covering the
excluded risk is not commercially available at reasonable rates. The
licensee must submit a certification in accordance with
Sec. 440.15(c)(1)(iii) of this part for the United States to cover such
claims.
(d) Upon the expiration of the policy period prescribed in
accordance with Sec. 440.11(a), the United States shall provide for
payment of claims that are payable under 49 U.S.C. 70113 from the first
dollar of loss up to $1,500,000,000 (as adjusted for inflation
occurring after January 1, 1989).
(e) Payment by the United States of excess third-party claims under
49 U.S.C. 70113 shall be subject to:
[[Page 39019]]
(1) Prompt notice by the licensee to the Office that the total
amount of claims arising out of licensed launch activities exceeds, or
is likely to exceed, the required amount of financial responsibility.
For each claim, the notice must specify the nature, cause, and amount
of the claim or lawsuit associated with the claim, and the party or
parties who may otherwise be liable for payment of the claim;
(2) Participation or assistance in the defense of the claim or
lawsuit by the United States, at its election;
(3) Approval by the Office of any settlement, or part of a
settlement, to be paid by the United States; and
(4) Approval by Congress of a compensation plan prepared by the
Office and submitted by the President.
(f) The Office will:
(1) Prepare a compensation plan outlining the total amount of
claims and meeting the requirements set forth in 49 U.S.C. 70113;
(2) Recommend sources of funds to pay the claims; and
(3) Propose legislation as required to implement the plan.
(g) The Office may withhold payment of a claim if the Office finds
that the amount is unreasonable, unless it is the final order of a
United States Court.
Appendix I--Information Requirements for Obtaining a Maximum Probable
Loss Determination for Licensed Launch Activities
Any person requesting a maximum probable loss determination
shall submit the following information to the Office, unless the
Office has waived a particular information requirement under 14 CFR
440.7(c):
I. General Information
A. Mission description.
1. A description of mission parameters, including:
a. Launch trajectory;
b. Orbital inclination; and
c. Orbit altitudes (apogee and perigee).
2. Flight sequence.
3. Staging events and the time for each event.
4. Impact locations.
5. Identification of the launch range facility, including the
launch complex on the range, planned date of launch, and launch
windows.
6. If the applicant has previously been issued a license to
conduct launch activities using the same launch vehicle from the
same launch range facility, a description of any differences planned
in the conduct of proposed activities.
B. Launch Vehicle Description.
1. General description of launch vehicle and its stages,
including dimensions.
2. Description of major systems, including safety systems.
3. Description of rocket motors and type of fuel used.
4. Identification of all propellants to be used and their hazard
classification under the Hazardous Materials Table, 49 CFR 172.101.
5. Description of hazardous components.
C. Payload.
1. General description of the payload, including type (e.g.,
telecommunications, remote sensing), propellants, and hazardous
components or materials, such as toxic or radioactive substances.
D. Flight Termination System.
1. Identification of any flight termination system (FTS) on the
launch vehicle, including a description of operations and component
location on the vehicle.
II. Pre-flight Processing Operations
A. General description of pre-flight operations including
vehicle processing consisting of an operational flow diagram showing
the overall sequence and location of operations, commencing with
arrival of vehicle components at the launch range facility through
final safety checks and countdown sequence, and designation of
hazardous operations, as defined in 14 CFR 440.3. For purposes of
these information requirements, payload processing, as opposed to
integration, is not a hazardous operation.
B. For each hazardous operation, including but not limited to
fueling, solid rocket motor build-up, ordnance installation,
ordnance checkout, movement of hazardous materials, and payload
integration:
1. Identification of location where each operation will
performed, including each building or facility identified by name or
number.
2. Identification of facilities adjacent to the location where
each operation will be performed and therefore exposed to risk,
identified by name or number.
3. Maximum number of third-party personnel, including but not
limited to Government personnel, who may be exposed to risk during
each operation. For Government personnel, identification of his or
her employer.
4. Identification of launch range facility policies or
requirements applicable to the conduct of operations.
III. Flight Operations
A. Identification of launch range facilities exposed to risk
during launch vehicle lift-off and flight.
B. Identification of accident failure scenarios, probability
assessments for each, and estimation of risks to third parties and
Government property due to property damage or bodily injury.
Scenarios shall cover the range of launch trajectories, inclinations
and orbits for which authorization is sought in the license
application. The estimation of risks for each scenario shall take
into account the number of third parties at risk as a result of
lift-off and flight of a launch vehicle (on-range, off-range, and
down-range) and specific, unique facilities exposed to risk.
C. On-orbit risk analysis assessing risks posed by a launch
vehicle to operational satellites.
D. Reentry risk analysis assessing risks to third parties as a
result to reentering debris or reentry of the launch vehicle or its
components.
E. Trajectory data as follows: Nominal and 3-sigma lateral
trajectory data in x, y, z and X, Y, Z coordinates in one-second
intervals, data to be pad-centered with x being along the initial
launch azimuth and continuing through impact for suborbital flights,
and continuing through orbital insertion or the end of powered
flight for orbital flights.
F. Tumble-turn data for guided vehicles only, as follows: For
vehicles with gimbaled nozzles, tumble turn data with zeta angles
and velocity magnitudes stated. A separate table is required for
each combination of fail times (every two to four seconds), and
significant nozzle angles (two or more small angels, generally
between one and five degrees).
G. Identification of debris lethal areas and the projected
number and ballistic coefficient of fragments expected to result
from flight termination, initiated either by command or self-
destruct mechanism, for lift-off, land overflight, and reentry.
IV. Post-flight Processing Operations
A. General description of post-flight ground operations
including overall sequence and location of operations for removal of
vehicle components and processing equipment from the launch range
facility and for handling of hazardous materials, and designation of
hazardous operations.
B. Identification of all facilities used in conducting post-
flight processing operations.
C. For each hazardous operation:
1. Identification of location where each operation is performed,
including each building or facility identified by name or number.
2. Identification of facilities adjacent to location where each
operation is performed and exposed to risk, identified by name or
number.
3. Maximum number of third-party personnel, including but not
limited to Government personnel, who may be exposed to risk during
each operation. For Government personnel, identification of his or
her employer.
4. Identification of launch range facility policies or
requirements applicable to the conduct of operations.
Appendix II--Agreement for Waiver of Claims and Assumption of
Responsibility
THIS AGREEMENT is entered into this ____ day of __________, by
and among [Licensee] (the ``Licensee''), [Customer] (the
``Customer'') and the Department of Transportation, on behalf of the
United States Government (collectively, the ``Parties''), to
implement the provisions of section 440.7(c) of the Commercial Space
Transportation Licensing Regulations, 14 CFR Ch. III (the
``Regulations'').
In consideration of the mutual releases and promises contained
herein, the Parties hereby agree as follows:
1. Definitions
``Customer'' means the above-named Customer on behalf of the
Customer and any
[[Page 39020]]
person to whom the Customer has sold, leased, assigned, or otherwise
transferred its rights in the payload (or any part thereof) to be
launched by the licensee, including a conditional sale, lease,
assignment, or transfer of rights.
``License'' means License No. ____ issued on ________, by the
Associate Administrator for Commercial Space Transportation, Federal
Aviation Administration, Department of Transportation, to the
Licensee, including all license orders issued in connection with the
License.
``Licensee'' means the Licensee and any transferee of the
Licensee under 49 U.S.C. Subtitle IX, ch. 701.
``United States Government'' means the United States, its
agencies involved in Licensed Launch Activities, and its contractors
and subcontractors involved in Licensed Launch Activities.
Except as otherwise defined herein, terms used in this Agreement
and defined in 49 U.S.C. Subtitle IX, ch. 701--Commercial Space
Launch Activities, or in the Regulations, shall have the same
meaning as contained in 49 U.S.C. Subtitle IX, ch. 701, or the
Regulations, respectively.
2. Waiver and Release of Claims
(a) Licensee hereby waives and releases claims it may have
against Customer, Customer's Contractors and Subcontractors, and the
United States Government, for Property Damage it sustains and for
Bodily Injury or Property Damage sustained by its own employees,
resulting from Licensed Launch Activities, regardless of fault.
(b) Customer hereby waives and releases claims it may have
against Licensee, its Contractors and Subcontractors, and the United
States Government, for Property Damage it sustains and for Bodily
Injury or Property Damage sustained by its own employees, resulting
from Licensed Launch Activities, regardless of fault.
(c) The United States Government hereby waives and releases
claims it may have against Licensee and Customer, and against their
respective Contractors and Subcontractors, for Property Damage it
sustains, to the extent that claims it would otherwise have for such
damage exceed the amount of insurance or demonstration of financial
responsibility required under section 440.9(e) of the Regulations,
14 CFR Sec. 440.9(e), regardless of fault.
3. Assumption of Responsibility
(a) Licensee and Customer shall each be responsible for Property
Damage it sustains and for Bodily Injury or Property Damage
sustained by its own employees, resulting from Licensed Launch
Activities, regardless of fault.
(b) The United States Government shall be responsible for
Property Damage it sustains, to the extent that claims it would
otherwise have for such damage exceed the amount of insurance or
demonstration of financial responsibility required under section
440.9(e) of the Regulations, 14 CFR Sec. 449.9(e), regardless of
fault.
4. Extension of Assumption and Waiver
(a) Licensee shall extend the waiver and release of claims and
the requirement of the assumption of responsibility as set forth in
paragraphs 2(a) and 3(a), respectively, to its Contractors and
Subcontractors by requiring them to waive and release all claims
they may have against Customer, Customer's Contractors and
Subcontractors, and the United States Government, and to agree to be
responsible, for Property Damage they sustain and for Bodily Injury
or Property Damage sustained by their own employees, resulting from
Licensed Launch Activities, regardless of fault.
(b) Customer shall extend the waiver and release of claims and
the requirement of the assumption of responsibility as set forth in
paragraphs 2(b) and 3(a), respectively, to its Contractors and
Subcontractors by requiring them to waive and release all claims
they may have against Licensee, the Licensee's Contractors and
Subcontractors, and the United States Government, and to agree to be
responsible, for Property Damage they sustain and for Bodily Injury
or Property Damage sustained by their own employees, resulting from
Licensed Launch Activities, regardless of fault.
5. Indemnification
(a) Licensee shall hold harmless and indemnify Customer and its
directors, officers, servants, agents, subsidiaries, employee and
assignees, or any of them, and the United States Government and its
directors, officers, servants, agents, subsidiaries, employee and
assignees, or any of them, from and against liability, loss or
damage arising out of claims that Licensee's Contractors and
Subcontractors may have for Property Damage sustained by them and
for Bodily Injury or Property Damage sustained by their employees,
resulting from Licensed Launch Activities.
(b) Customer shall hold harmless and indemnify Licensee and its
directors, officers, servants, agents, subsidiaries, employees and
assignees, or any of them, and the United States Government and its
directors, officers, servants, agents, subsidiaries, employees and
assignees, or any of them, from and against liability, loss or
damage arising out of claims that Customer's Contractors and
Subcontractors, or any person on whose behalf Customer enters into
this Agreement, may have for Property Damage sustained by them and
for Bodily Injury or Property Damage sustained by their employees,
resulting from Licensed Launch Activities.
(c) To the extent provided in advance in an appropriation law or
to the extent there is enacted additional legislative authority
providing for the payment of claims, the United States shall hold
harmless and indemnify Licensee and Customer and their respective
directors, officers, servants, agents, subsidiaries, employees and
assignees, or any of them, from and against liability, loss or
damage arising out of claims that any person on whose behalf the
Department enters into this Agreement may have for Property Damage
sustained by them, resulting from Licensed Launch Activities.
6. Assurances under 49 U.S.C. 70112(e)
Notwithstanding any provision of this Agreement to the contrary,
Licensee shall hold harmless and indemnify the United States
Government and its agencies, servants, agents, employees and
assignees, or any of them, from and against liability, loss or
damage arising out of claims for Bodily Injury or Property Damage,
resulting from Licensed Launch Activities, regardless of fault,
except to the extent that: (i) As provided in section 7(b) of this
Agreement, claims result from willful misconduct of the United
States Government or its agents; (ii) claims for Property Damage
sustained by the United States Government exceed the amount of
insurance or demonstration of financial responsibility required
under section 440.9(e) of the Regulations (14 CFR Sec. 440.9(e));
(iii) claims by a Third Party for Bodily Injury or Property Damage
exceed the amount of insurance or demonstration of financial
responsibility required under section 440.9(c) of the Regulations
(14 CFR Sec. 440.9(c)), and do not exceed $1,500,000,000 (as
adjusted for inflation after January 1, 1989) above such amount, and
are payable pursuant to the provisions of 49 U.S.C. 70113 and
section 440.19 of the Regulations (14 CFR Sec. 440.19); or (iv)
Licensee has no liability for claims exceeding $1,500,000,000 (as
adjusted for inflation after January 1, 1989).
7. Miscellaneous
(a) Nothing contained herein shall be construed as a waiver or
release by Licensee, Customer or the United States Government of any
claim by an employee of the Licensee, Customer or the United States
Government, respectively, including a member of the Armed Forces of
the United States, for Bodily Injury or Property Damage, resulting
from Licensed Launch Activities.
(b) Notwithstanding any provision of this Agreement to the
contrary, any waiver, release, assumption of responsibility or
agreement to indemnify herein shall not apply to claims for Bodily
Injury or Property Damage resulting from willful misconduct of any
of the Parties, the Contractors and Subcontractors of any of the
Parties, and the directors, officers, agents and employees of any of
the foregoing.
(c) In the event that more than one customer is involved in
Licensed Launch Activities, references herein to Customer shall
apply to, and be deemed to include, each such customer severally and
not jointly.
(d) The Agreement shall be governed by and construed in
accordance with United States Federal law.
In Witness Whereof, the Parties to this Agreement have caused
the Agreement to be duly executed by their respective duly
authorized representatives as of the date written above.
Licensee
By:
Its:
Customer
By:
Its:
Department of Transportation
By:
Its: Associate Administrator for Commercial Space Transportation,
Federal Aviation Administration
[[Page 39021]]
Issued in Washington, DC., this 17th day of July 1996.
Patti Grace Smith,
Acting Associate Administrator for Commercial Space Transportation,
Federal Aviation Administration.
[FR Doc. 96-18532 Filed 7-24-96; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-18479 Telephone Number Portability
[Federal Register Volume 61, Number 144 (Thursday, July 25, 1996)]
[Proposed Rules]
[Pages 38687-38693]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18479]
=======================================================================
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 20 and 52
[CC Docket No. 95-116; FCC 96-286]
Telephone Number Portability
AGENCY: Federal Communications Commission.
ACTION: Proposed Rule.
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SUMMARY: On July 13, 1995, the Commission issued a Notice of Proposed
Rulemaking (CC Docket No. 95-116) seeking comments on a wide variety of
policy and technical issues related to number portability. On June 27,
1996, the Commission adopted a First Report and Order which is
published elsewhere in this issue. On the same day, the Commission
adopted a Further Notice of Proposed Rulemaking (Further Notice or
FNPRM) seeking comment on the appropriate methods of cost recovery of
long-term number portability. Since the Telecommunications Act of 1996
requires that the costs of number portability be borne by all
telecommunications carriers on a competitively neutral basis, the
Commission will determine the appropriate method of cost recovery in
this proceeding.
DATES: Comments are due on or before August 16, 1996, and reply
comments are due on or before September 16, 1996.
ADDRESSES: Comments and reply comments should be sent to Office of the
Secretary, Federal Communications Commission, 1919 M Street, NW., Room
222, Washington, DC 20554, with a copy to Wanda Harris of the
Competitive Pricing Division of the Common Carrier Bureau, 1919 M
Street, NW., Room 518, Washington, DC 20554. Parties should also file
one copy of any documents filed in this docket with the Commission's
copy contractor, International Transcription Services, Inc., 2100 M
Street, NW., Suite 140, Washington, DC 20037.
FOR FURTHER INFORMATION CONTACT: Neil Fried, Attorney, Common Carrier
Bureau, Competitive Pricing Division, (202) 418-1530.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's
Further Notice of Proposed Rulemaking June 27, 1996, and released July
2, 1996 (FCC 96-286). This FNPRM contains no proposed or modified
information collections subject to the Paperwork Reduction Act of 1995
(PRA). The full text of this Further Notice of Proposed Rulemaking is
available for inspection and copying during normal business hours in
the FCC Reference Center (Room 239), 1919 M St., NW., Washington, DC.
The complete text also may be obtained through the World Wide Web, at
http://www.fcc.gov/Bureaus/Common Carrier/Orders/fcc96286.wp, or may be
purchased from the Commission's copy contractor, International
Transcription Service, Inc., (202) 857-3800, 2100 M St., NW., Suite
140, Washington, DC 20037.
Initial Regulatory Flexibility Analysis
Pursuant to section 603 of the Regulatory Flexibility Act, 5 U.S.C.
603, the Commission prepared an Initial Regulatory Flexibility Analysis
(IRFA) of the expected impact on small entities of the policies and
rules proposed in the Further Notice of Proposed Rulemaking. The IRFA
is set forth in Appendix C of the FNPRM. The Commission, in compliance
with sections 251(b)(2) and 251(d)(1) of the Act, proposes rules
necessary to implement section 251(e)(2) of the Act, which requires
that the costs of number portability be borne by all telecommunications
carriers on a competitively neutral basis. The Commission's objective
in issuing the FNPRM is to propose and seek comment on rules
establishing a cost recovery mechanism for carriers to use in
implementing a long-term number portability method pursuant to the Act
and in accordance with the First Report and Order in this proceeding.
Specifically, the Commission's goal is to propose rules which implement
section 251(e)(2) of the Act, requiring that the cost of ``number
portability be borne by all telecommunications carriers on a
competitively neutral basis as determined by the Commission.'' 47
U.S.C. 251(e)(2). The legal basis for action as proposed in the FNPRM
is contained in sections 1, 4(i), 4(j), 201-205, 218, 251(b), 251(e),
and 332 of the Communications Act of 1934, as amended. 47 U.S.C. 151,
154(i), 154(j), 201-205, 218, 251(b), 251(d), 251(e), The Commission's
proposed rules governing cost recovery for long-term number portability
apply to all LECs, including incumbent LECs as well as new LEC
entrants, and also apply to cellular, broadband PCS, and covered SMR
providers. According to the SBA definition, incumbent LECs do not
qualify as small businesses because they are dominant in their field of
operation. However, the proposed rules may have a significant economic
impact on a substantial number of small businesses insofar as they may
apply to telecommunications carriers other than incumbent LECs. The
proposed rules may have such an impact upon new entrant LECs as well as
cellular, broadband PCS, and covered SMR providers. Based upon data
contained in the most recent census and a report by the Commission's
Common Carrier Bureau, the Commission estimates that 2,100 carriers
could be affected. The Commission requests comment on this estimate.
These entities could include various categories of carriers, including
competitive access providers, cellular carriers, interexchange
carriers, mobile service carriers, operator service providers, pay
telephone operators, PCS providers, covered SMR providers, and
resellers. The FNPRM requests comment on the appropriate method by
which the costs of long-term number portability should be recovered.
One possible cost recovery method would be based upon a percentage of a
carrier's gross revenues. Such a rule, if promulgated, would not impose
a reporting requirement on LECs because they already file information
about gross revenues with the Commission for other purposes. There are
no other reporting requirements contemplated by the FNPRM. There are no
federal rules
[[Page 38688]]
which overlap, duplicate or conflict with these proposed rules.
Synopsis of Further Notice of Proposed Rulemaking
Further Notice of Proposed Rulemaking
I. Long-Term Number Portability--Costs and Cost Recovery
A. Background
1. In the NPRM (Telephone Number Portability, Notice of Proposed
Rulemaking, 60 FR 39136 (August 1, 1995)), we requested comment on
appropriate cost recovery mechanisms regarding long-term number
portability. We also sought comment, data, studies, and other
information on the costs associated with designing, building, and
deploying long-term number portability. Section 251(e)(2) of the 1996
Act requires, inter alia, that the costs of number portability be borne
by all telecommunications carriers on a competitively neutral basis.
B. Positions of the Parties
2. In response to the July NPRM, many parties assert that the costs
of number portability cannot be estimated until the industry adopts a
particular architecture. While the incumbent LECs generally urge the
Commission to continue to gather information concerning the potential
costs and impacts on existing networks from ongoing state activities, a
few parties offer rough estimates regarding the costs of implementing
long-term number portability. We note that many of these estimates
assume a significant level of location portability.
3. The incumbent LECs generally assert that the costs of providing
long-term number portability should be borne on a ``competitively
neutral'' basis by those carriers that cause or benefit from number
portability. They assert that specific cost recovery mechanisms cannot
be established until a better understanding is developed regarding how
number portability should be provided. Ameritech, however, proposes a
cost recovery structure with three categories of costs: (1)
Administrative and overhead costs for SMS/databases--to be recovered
from all providers; (2) costs directly assignable to number portability
deployment--to be recovered from all LECs, both incumbents and new
entrants, in proportion to the amount of telephone numbers that each
has transferred to its switches; and (3) costs incurred to increase the
capacity of existing infrastructure--to be borne mostly by incumbent
LECs. Some incumbent LECs also contend that the costs of deploying
long-term number portability should be allocated between state and
federal jurisdictions.
4. Most other parties generally contend that all telecommunications
carriers and their customers should bear the costs of long-term number
portability because they all benefit from the service and price
competition stimulated by portability. Non-LEC parties generally
contend that carrier-specific costs incurred in adapting existing
systems to long-term number portability should be recovered, like other
network upgrades such as AIN and SS7, through tariff and contract
mechanisms. Sprint and AT&T advocate implementing portability on a
region-by-region basis (with costs amortized over several years) to
minimize incumbent carriers' greater burdens for upgrading existing
networks. Several parties also contend that the external costs of long-
term number portability, i.e., the costs of designing, deploying, and
operating facilities common to all carriers, should be shared equitably
among all affected carriers. Parties offer several different methods of
allocating costs among the relevant carriers.
5. After passage of the 1996 Act, and in response to the March
Public Notice, several parties addressed the meaning of the statutory
language ``competitively neutral'' as set forth in section 251(e)(2).
Ameritech asserts that this standard requires that all costs be
allocated to all telecommunications carriers on a basis that is
independent of who incurred the cost or who uses portability, and that
gives no competitor an advantage. Ameritech criticizes proposals that
would limit or exclude recovery of costs incurred by incumbent LECs or
allocate costs based on lines. BellSouth urges the Commission to
consider the types of infrastructure costs that all classes of carriers
will bear in implementing number portability, not just incumbent LECs,
in order to avoid imposing large financial burdens on any particular
class of carriers, especially those not required to participate in
portability. GTE and Pacific Bell argue that requiring each carrier to
bear its own costs would result in incumbent LECs paying most of the
implementation costs, which is not competitively neutral.
6. In contrast, ALTS, Omnipoint, and Cox maintain that competitive
neutrality requires each carrier to bear its own costs, and that no
carrier should be required to pay for upgrades to another carrier's
network. Moreover, Cox argues that incumbent LEC proposals to require
that the new entrants bear all number portability costs are not
competitively neutral because it would unreasonably burden those
carriers. In addition, Cox asserts that, because new entrants will
begin providing service at different times, it would be difficult to
allocate costs on a competitively neutral basis unless each carrier
bears its own costs of implementation. Omnipoint asserts that requiring
carriers to compensate other carriers with less efficient systems and
networks is competitively unfair.
7. US West advocates permitting LECs to recover their costs using a
per-line surcharge, claiming that all carriers are entitled to recover
their implementation costs under the 1996 Act. GTE suggests
establishment of a ``cost pool,'' under which each subscriber would be
assessed an amount, regardless of which carrier it used. Bell Atlantic
claims that allowing incumbent LECs to recover their costs only from
their customers, and not from other providers, is not competitively
neutral because costs would be recovered only from those end users who
do not use or benefit from portability, and higher incumbent LEC rates
would encourage their customers to switch providers. USTA cautions that
not permitting carriers to recover their costs through separate charges
for number portability will result in an across-the-board increase in
local rates, which, for incumbent LECs, must be approved by state
regulators.
8. In contrast, MFS maintains that the competitive neutrality
requirement does not apply to end users at all, but rather requires an
analysis of charges assessed to other, competing telecommunications
carriers. Teleport argues that number portability costs should not be
recovered from customers through a number portability surcharge, as
such charges would deter customers from transferring their numbers. Cox
asserts that GTE's pooling argument is not competitively neutral
because it would create incentives for incumbents to inflate costs.
9. MFS argues that the competitive neutrality standard in the 1996
Act requires that only the shared/common costs be borne by all
telecommunications carriers, and that such allocation should be done
based on net revenues. It notes that all telecommunications users
should not be interpreted to mean only a segment of the market, a
single class of carriers, or a single class of customers. MFS further
argues that the shared/common costs could be recovered from each
carrier's customer base, but not from other carriers in the form of
increased charges. TRA contends that section 251(e)(2) contemplates a
competitively fair distribution of the common costs associated with
number portability
[[Page 38689]]
among only those carriers engaged in the provision of local exchange/
exchange access services, not a general levy on all telecommunications
providers. Teleport and Time Warner Holdings propose similar cost
recovery mechanisms to MFS, but argue that the shared costs should be
allocated based on the number of lines served, rather than net
revenues. ALTS argues that, in order to expedite the implementation of
number portability, shared/common costs (e.g., costs associated with
the number portability database(s)) should be recovered by a third
party from all carriers on a per line basis, but notes that there is
considerable economic logic in recovering such costs according to net
revenues.
C. Discussion
10. We tentatively conclude that three types of costs are involved
in providing long-term service provider portability: (1) Costs incurred
by the industry as a whole, such as those incurred by the third-party
administrator to build, operate, and maintain the databases needed to
provide number portability; (2) carrier-specific costs directly related
to providing number portability (e.g., the costs to purchase the switch
software implementing number portability); and (3) carrier-specific
costs not directly related to number portability (e.g., the costs of
network upgrades necessary to implement a database method). We seek
comment on this tentative conclusion and ask whether other types of
costs are involved in the provision of long-term service provider
number portability.
11. New section 251(e)(2) of the Communications Act requires that
the costs of establishing ``number portability be borne by all
telecommunications carriers on a competitively neutral basis as
determined by the Commission.'' We tentatively conclude that the
``competitively neutral'' standard in section 251(e)(2) applies only to
number portability costs, and not to cost recovery of carrier-specific,
non-number portability-specific costs, such as upgrades to SS7 or AIN
technologies. This interpretation is borne out by the plain language of
the statute, which only requires that telecommunications carriers bear
the costs of number portability. We also tentatively conclude that
section 251(e)(2) does not address recovery of those costs from
consumers, but only the allocation of such costs among carriers. We
seek comment on these tentative conclusions. We also seek comment on
the meaning of the statutory language ``all telecommunications
carriers'' as that term is used in section 251(e)(2). We further seek
comment on whether the Commission has authority to exclude certain
groups of telecommunications carriers from the cost recovery mechanisms
for number portability, and, if so, which carriers should be excluded.
12. In determining the cost recovery mechanism for currently
available number portability measures, we set forth principles with
which any competitively neutral cost recovery mechanism should comply.
Specifically, we required that (1) a competitively neutral cost
recovery mechanism should not give one service provider an appreciable,
incremental cost advantage over another service provider, when
competing for a specific subscriber; and (2) a competitively neutral
cost recovery mechanism should not have a disparate effect on the
ability of competing service providers to earn a normal return. As in
the case of currently available number portability measures, we believe
that these principles equally apply to the allocation of costs incurred
due to the implementation of long-term number portability. We,
therefore, tentatively conclude that any long-term cost recovery method
should comply with these principles. We seek comment on this tentative
conclusion.
13. Pursuant to the requirement of section 251(e)(2) that number
portability costs be borne by all telecommunications carriers on a
competitively neutral basis as determined by this Commission, we must
establish pricing principles that are applied consistently to all
carriers. Consequently, we tentatively conclude that the pricing for
state-specific databases should be governed by the pricing principles
established in this proceeding. We believe the use of our pricing
mechanism--even in states that opt out of the regional database
system--will help to maintain consistency between states, thereby
improving the likelihood that competition will develop nationwide.
a. Costs of Facilities Shared by All Carriers for the Provision of
Number Portability
14. The costs of facilities shared by all telecommunications
carriers for providing long-term number portability include, for
example, the costs of building and administering regional databases. We
seek comment on whether the database administrator(s) selected through
the NANC should recover the costs of facilities shared by all
telecommunications carriers for the provision of long-term number
portability through a charge assessed only on those carriers using the
databases or on all carriers whether or not they use the databases. We
note that if a regional database consists only of the SMS, usage would
consist of uploading and downloading number portability routing
information. However, to the extent a database architecture is chosen
that utilizes an SMS/SCP pair, usage additionally may include carrier
queries to the regional SCP for purposes of providing routing
instructions to carriers for individual calls. We seek comment on
whether such costs, if recovered from all carriers, should be recovered
on a nationwide or regional basis, and how they should be recovered on
such bases. To the extent such costs are recovered on a nationwide
basis, and multiple entities are selected to administer the regional
databases, we seek comment on whether either one of the neutral third-
party administrators or a separate entity should be designated to
allocate the aggregate costs among each telecommunications carrier and
determine the method by which such payments should be made.
15. With regard to those carriers responsible for bearing the costs
of the shared facilities, we tentatively conclude that the recovery of
the costs associated with these databases should be allocated in
proportion to each telecommunications carrier's total gross
telecommunications revenues minus charges paid to other carriers. We
believe that the use of gross telecommunications revenues to allocate
costs best comports with our principles for competitively neutral cost
recovery set forth above. As we indicated in our discussion of
currently available number portability measures, such allocator would
not give any provider an appreciable, incremental cost advantage over
another service provider, nor have a disparate effect on the ability of
competing service providers to earn a normal return. In addition, gross
telecommunications revenues are the least distortionary, among
practical applications, of allocating costs across telecommunications
carriers. We also believe it is appropriate to subtract out charges
paid to other carriers, such as access charges, when determining the
relevant amount of each carrier's telecommunications revenues for
purposes of cost allocation. This is because the revenues attributable
to such charges effectively would be counted twice in determining the
relative number portability costs each carrier should pay--once for the
carrier
[[Page 38690]]
paying such charges and once for the carrier receiving them. We believe
that a reasonable, equitable, and competitively neutral measure of the
competitive benefits which will result from number portability is each
telecommunications carrier's gross telecommunications revenues minus
charges to other telecommunications carriers. We seek comment on
whether this proposal for recovery of the costs associated with
regional databases comports with the standard set forth in section
251(e)(2), and whether there exists alternative ways of allocating this
type of cost among the relevant carriers.
16. We currently require the NANPA to recover the costs of
administering the NANP, and operating databases to perform such
administration, from all telecommunications carriers. The recovery of
these costs is allocated among all telecommunications carriers based on
the carriers' gross revenues. In our recent Interconnection NPRM (61 FR
18311 (April 25, 1996)), we tentatively concluded that we need not take
any further action to comply with section 251(e)(2)'s mandate that the
cost of establishing telecommunications numbering administration
arrangements be borne by all telecommunications carriers on a
competitively neutral basis, in light of the action taken in the
Numbering Plan Order (60 FR 38737 (July 28, 1996)).
17. With the implementation of long-term number portability
measures, all carriers, including currently regulated incumbent LECs,
will incur costs specific to the deployment and usage of number
portability databases. Therefore, we seek comment on whether incumbent
LECs should be able to recover their portion of the costs of facilities
shared by all carriers in providing long-term number portability from
their end users or from other carriers, and whether the Commission
should prescribe the particular cost recovery mechanism. To the extent
parties argue that such costs should be recovered from other carriers,
we seek comment on whether such carriers should include all
telecommunications carriers, such as other local exchange providers,
CMRS providers, IXCs, and resellers, or only those carriers that have
received ported numbers. In addition, assuming that we prescribe a
particular recovery mechanism, we ask parties to identify alternative
ways carriers may recover this type of cost from carriers (or end
users).
18. We tentatively conclude the number portability costs of
facilities shared by all carriers fall into three subcategories: (a)
Non-recurring costs, including the development and implementation of
the hardware and software for the database; (b) recurring (monthly or
annually) costs, such as the maintenance, operation, security,
administration, and physical property associated with the database; and
(c) costs for uploading, downloading, and querying number portability
database information. We seek comment on this tentative conclusion and
ask whether there are other types of costs associated with the
facilities that will be shared by all carriers.
19. We seek comment on whether the first two subcategories, non-
recurring and recurring costs, should be recovered through monthly
charges to the individual carriers using the database, allocated in
proportion to each carrier's gross telecommunications revenues net of
payments to other carriers, or from all carriers operating in areas
where number portability is offered. We note that non-recurring charges
could be recovered in a one-time payment or over time.
20. We believe that there are at least two methods for recovering
the third subcategory of shared costs, i.e., the costs of uploading,
downloading, or querying the database. First, these costs could be
recovered through usage charges assessed on those carriers that either
access the database to upload number portability routing information,
download such information, or directly query the database. Those
carriers, including IXCs, could then either recover such costs from
their own customer base, or choose not to recover such costs.
21. Second, the upload, download, and/or per-query costs could be
folded into the monthly charges assessed on the carriers using the
databases, which would be allocated in proportion to each carrier's
gross telecommunications revenues. We believe this approach is most
appropriate in those instances where it is not practical to determine
the cost causer of the usage costs, e.g., per-query costs. Under
current database approaches, there is no direct correlation between the
number of queries made and the number of telephone numbers that have
been forwarded because queries will be performed on all calls to a
particular switch once any single number has been transferred from that
switch. We invite commenting parties to provide credible, substantiated
estimates of the amount of the usage costs, including upload, download,
and per-query costs, to the extent applicable, and whether such costs
will be incurred on a per-minute, per-call, or other basis. We also
seek comment on these and alternative methods for recovering per-query
costs. Parties are asked to state with specificity the advantages and
disadvantages of each.
22. In accordance with the 1996 Act, the costs of number
portability are to be recovered from all telecommunications carriers on
a competitively neutral basis. We seek comment on what steps we need to
take to ensure that this requirement is satisfied for all shared
industry costs. For instance, we seek comment on whether it is
necessary for the Commission to establish a mechanism to ensure that
the LNPA(s) recovers its costs in a competitively neutral fashion. We
also seek comment on what mechanism(s), e.g., federal tariffs, periodic
reports, etc., should be utilized to ensure compliance with the
statutory requirement and under what authority the Commission can
impose such obligations. We note that section 251(e)(1) requires the
Commission to create or designate one or more impartial entities to
administer telecommunications numbering, and provides the Commission
with exclusive jurisdiction over the NANP, and section 251(e)(2) gives
the Commission the authority to establish rules by which carriers must
bear the costs of telecommunications numbering administration and
number portability. We seek comment on the relevance of these
provisions to the Commission's authority to impose obligations on the
LNPA(s).
b. Direct Carrier-Specific Costs to Implement Number Portability
23. Carrier-specific costs directly related to number portability
include, for example, the costs of purchasing the switch software
necessary to implement a long-term number portability solution. There
are at least two ways of allocating these carrier-specific costs.
First, we could require individual carriers to bear their own costs of
deploying number portability in their networks. Second, we could
require all carriers in a given region to pool their number portability
costs, which then would be spread across all carriers providing and
using number portability based on some allocator, such as gross
telecommunications revenues or number of subscriber lines. We seek
comment on whether this proposal comports with the standard set forth
in section 251(e)(2), and whether there exist alternative ways of
allocating this type of cost among the relevant carriers.
24. We seek comment on whether we can and should mandate a
mechanism by which incumbent LECs or others then may recover these
costs, from either end users or other carriers (such as other local
exchange service
[[Page 38691]]
providers, CMRS providers, IXCs, and resellers), and ask that parties
identify the jurisdictional basis for such authority.
25. If the Commission were to permit costs to be recovered from
consumers, there are at least two options. One option would be to allow
carriers the flexibility to recover their number portability-specific
costs from their customers in whatever manner the carrier chooses. A
second option would be to require carriers to recover their number
portability-specific costs through a number portability charge assessed
on their end user customers located in areas where number portability
is available. We seek comment on the advantages and disadvantages of
these proposals and any alternative mechanisms for recovering these
costs from consumers. Parties favoring a specific option should comment
on whether their preferred approach is consistent with principles of
competitive neutrality.
26. We note that several additional issues are raised if the
carrier-specific, number portability-specific costs are to be passed on
to consumers. Therefore, we seek comment on whether, under any cost
recovery mechanism, the cost to consumers should: (1) Vary among
carriers in a given geographic region; (2) remain constant among all
carriers in a given geographic region; or (3) vary among different
geographic regions, e.g., states or LATAs (while remaining constant
within that region, i.e., state or LATA). For each of these approaches,
we ask whether the costs to consumers should be permitted to change,
for example, on a monthly or annual basis. We also seek comment on
whether carriers should charge their customers a single, one-time
charge, a monthly fee, or some percentage of the customer's monthly
bill, to recover their carrier-specific number portability-specific
costs. To the extent this Commission permits carriers to recover their
costs through use of a number portability charge, we seek comment on
whether such a charge should be specifically identified on consumer
bills from those carriers as a separate line item. We seek comment on
whether any such charge should be filed as a tariff at either the
federal or state level.
27. Finally, we seek comment on whether carriers should be
permitted to recover carrier-specific, number portability-specific
costs from other carriers, through increases in charges for regulated
services. Parties that advocate increases in charges for regulated
services are asked to specify which charges should be increased and
under what jurisdictional authority the Commission can prescribe such
increases.
c. Indirect Carrier-Specific Costs to Implement Number Portability
28. We tentatively conclude that carrier-specific costs not
directly related to number portability should be borne by individual
carriers as network upgrades. As such, carrier-specific costs not
directly related to number portability are not subject to the
requirements set forth in section 251. We seek comment on this
tentative conclusion and on alternative methods for recovering this
type of cost.
29. Carrier-specific costs that are not directly related to the
provision of number portability include, for example, the costs of
upgrading SS7 capabilities or adding intelligent network (IN) or
advanced intelligent network (AIN) capabilities. These costs are
associated with the provision of a wide variety of services unrelated
to the provision of number portability, such as CLASS features.
Provision of these services will facilitate the ability of incumbent
carriers to compete with the offerings of new entrants.
30. Incumbent LECs, as well as new entrants, will be required to
incur these costs to support the provision of number portability and
other services. While some incumbent LECs may have to upgrade existing
networks and infrastructure, new entrants will need to design their
networks from the outset to include these capabilities. Many incumbent
LECs, though, may already have the necessary network capabilities to
support the provision of long-term number portability, thus minimizing
the need to incur upgrade costs. By limiting the deployment of long-
term portability to those geographic areas where carriers are already
offering, or are likely to offer, competing telephone exchange and
exchange access services, we limit these expenditures and their
recovery to areas where the incumbent carriers would, solely for
competitive reasons, likely upgrade their networks. We note that this
approach is also consistent with that taken in implementing 800 number
portability, where LECs recovered the core costs of deploying SS7
capabilities as network upgrades from all end users.
31. We seek comment on whether we should specify a particular
recovery mechanism for carrier-specific costs not directly related to
number portability, and on alternative methods of recovering such costs
from consumers or other carriers. In addition, we believe that due to
the inevitable implementation of switch and other network upgrades to
support long-term number portability and other AIN capabilities,
networks will operate with greater efficiencies, resulting in increased
productivity. We seek comment on whether such future network design
modifications should be considered in determining the extent to which
carriers may recover carrier-specific, non-number portability-specific
costs, and if so, how they should be considered.
d. Price Cap Treatment
32. If this Commission were to specify a particular method of cost
recovery from end users, such requirement would include companies that
are subject to price cap treatment. Price cap regulation may affect
carriers' ability to recover their costs under the methods described
above, or other possible methods, because it restricts the flexibility
with which price cap carriers may price various services. We
tentatively conclude that price cap carriers should be permitted to
treat as an exogenous cost any carrier-specific, number portability-
specific costs they incur, but that such carriers should not be
permitted to treat as an exogenous cost any carrier-specific, non-
number portability-specific costs. These conclusions are consistent
with our 800 Access proceeding where costs specific to 800 access were
accorded exogenous cost treatment, while core SS7 costs were treated as
general network upgrades. We, therefore, seek comment specifically on
how price cap companies should be permitted to recover costs for
facilities shared by all carriers; carrier-specific, number
portability-specific costs; and carrier-specific, non-number
portability-specific costs. In particular, we seek comment on whether
price cap companies should be permitted to treat exogenously any of the
above number portability-specific cost categories. We also seek comment
on whether these costs, alternatively, should be placed in a new price
cap basket or an existing basket. If parties recommend that such costs
are to be placed in an existing basket, we ask parties to identify
which basket would be most appropriate.
II. Procedural Matters
A. Ex Parte
33. This is a non-restricted notice and comment rulemaking. Ex
parte presentations are permitted, except during the Sunshine period,
provided they are disclosed as provided in the Commission's rules.
B. Regulatory Flexibility Act
34. As required by section 603 of the Regulatory Flexibility Act, 5
U.S.C. 601
[[Page 38692]]
et seq. (1981), the Commission prepared an Initial Regulatory
Flexibility Analysis (IRFA) of the expected impact on small entities
resulting from the policies and proposals set forth in this FNPRM. The
IRFA appears at Appendix C of the FNPRM. Written public comments are
requested on the IRFA. These comments must be filed in accordance with
the same filing deadlines as comments on the remainder of the FNPRM,
but they must have a separate and distinct heading designating them as
responses to the regulatory flexibility analysis. The Secretary shall
cause a copy of the FNPRM, including the IRFA, to be sent to the Chief
Counsel for Advocacy of the Small Business Administration in accordance
with section 603(a) of the Regulatory Flexibility Act.
35. Reason for Action: The Commission, in compliance with sections
251(b)(2) and 251(d)(1) of the Act, proposes rules and procedures
intended to ensure the prompt implementation of telephone number
portability with the minimum regulatory and administrative burden on
telecommunications carriers. The rules proposed in the FNPRM are
necessary to implement section 251(e)(2) of the Act, which requires
that the costs of number portability be borne by all telecommunications
carriers on a competitively neutral basis.
36. Objectives and Legal Basis for Proposed Rules: The Commission's
objective in issuing the FNPRM is to propose and seek comment on rules
establishing a cost recovery mechanism for carriers to use in
implementing a long-term number portability method pursuant to the Act
and in accordance with our Report and Order in this proceeding.
Specifically, our goal is to propose rules which implement section
251(e)(2) of the Act, requiring that the cost of ``number portability
be borne by all telecommunications carriers on a competitively neutral
basis as determined by the Commission.'' 47 U.S.C. 251(e)(2). The legal
basis for action as proposed in the FNPRM is contained in sections 1,
4(i), 4(j), 201-205, 218, 251(b), 251(e), and 332 of the Communications
Act of 1934, as amended. 47 U.S.C. 151, 154(i), 154(j), 201-205, 218,
251(b), 251(d), 251(e), 332.
37. Description and Estimated Number of Small Entities Affected:
The rules governing long-term number portability apply to all LECs,
including incumbent LECs as well as new LEC entrants, and also apply to
cellular, broadband PCS, and covered SMR providers. According to the
SBA definition, incumbent LECs do not qualify as small businesses
because they are dominant in their field of operation. Accordingly, we
will not address the impact of these rules on incumbent LECs.
38. However, our rules may have a significant economic impact on a
substantial number of small businesses insofar as they apply to
telecommunications carriers other than incumbent LECs. The rules may
have such an impact upon new entrant LECs as well as cellular,
broadband PCS, and covered SMR providers. Based upon data contained in
the most recent census and a report by the Commission's Common Carrier
Bureau, we estimate that 2,100 carriers could be affected. We have
derived this estimate based on the following analysis:
39. According to the 1992 Census of Transportation, Communications,
and Utilities, there were approximately 3,469 firms with under 1,000
employees operating under the Standard Industrial Classification (SIC)
category 481--Telephone. See U.S. Dept. of Commerce, Bureau of the
Census, 1992 Census of Transportation, Communications, and Utilities
(issued May 1995). Many of these firms are the incumbent LECs and, as
noted above, would not satisfy the SBA definition of a small business
because of their market dominance. There were approximately 1,350 LECs
in 1995. Industry Analysis Division, FCC, Carrier Locator: Interstate
Service Providers at Table 1 (Number of Carriers Reporting by Type of
Carrier and Type of Revenue) (December 1995). Subtracting this number
from the total number of firms leaves approximately 2,119 entities
which potentially are small businesses which may be affected. This
number contains various categories of carriers, including competitive
access providers, cellular carriers, interexchange carriers, mobile
service carriers, operator service providers, pay telephone operators,
PCS providers, covered SMR providers, and resellers. Some of these
carriers--although not dominant--may not meet the other requirement of
the definition of a small business because they are not ``independently
owned and operated.'' See 15 U.S.C. 632. For example, a PCS provider
which is affiliated with a long distance company with more than 1,000
employees would be disqualified from being considered a small business.
Another example would be if a cellular provider is affiliated with a
dominant LEC. Thus, a reasonable estimate of the number of ``small
businesses'' affected by this Order would be approximately 2,100. We
request comment on this estimate. These entities could include various
categories of carriers, including competitive access providers,
cellular carriers, interexchange carriers, mobile service carriers,
operator service providers, pay telephone operators, PCS providers,
covered SMR providers, and resellers. The SIC codes which describe
these groups are 4812 and 4813.
40. Reporting, Recordkeeping and Other Compliance Requirements: The
FNPRM requests comment on the appropriate method by which the costs of
long-term number portability should be recovered. One possible cost
recovery method would be based upon a percentage of a carrier's gross
revenues. Such a rule, if promulgated, would not impose a reporting
requirement on LECs because they already file information about gross
revenues with the Commission for other purposes. There are no other
reporting requirements contemplated by the FNPRM.
41. Federal Rules Which Overlap, Duplicate or Conflict with these
Rules: None.
C. Notice and Comment Provision
42. Pursuant to applicable procedures set forth in sections
Secs. 1.415 and 1.419 of the Commission's Rules, 47 CFR 1.415 and
1.419, interested parties may file comments on this FNPRM on or before
August 16, 1996, and reply comments on or before September 16, 1996. To
file formally in this proceeding, parties must file an original and
twelve copies of all comments, reply comments, and supporting comments.
Parties wanting each Commissioner to receive a personal copy of their
comments must file an original plus sixteen copies. Comments and reply
comments should be sent to the Office of the Secretary, Federal
Communications Commission, 1919 M Street, NW., Room 222, Washington, DC
20554. In addition, parties should file two copies of any such
pleadings with the Competitive Pricing Division, Common Carrier Bureau,
Room 518, 1919 M Street, NW., Washington, DC 20554. Parties should also
file one copy of any documents filed in this docket with the
Commission's copy contractor, International Transcription Services,
Inc. (ITS, Inc.), 2100 M Street, NW., Suite 140, Washington, DC 20037
(202/857-3800). Comments and reply comments will be available for
public inspection during regular business hours in the FCC Reference
Center, Room 239, 1919 M Street, NW., Washington, DC 20554.
43. In order to facilitate review of comments and reply comments,
both by parties and by Commission staff, we require that comments be no
longer than forty (40) pages and reply comments be no longer than
twenty five (25) pages.
[[Page 38693]]
Empirical economic studies, copies of relevant state orders, and
proposed rule text will not be counted against these page limits.
Specific rule proposals should be filed as an appendix to a party's
comments or reply comments. Such appendices may include only proposed
text for rules that would implement proposals set forth in the parties'
comments and reply comments in this proceeding, and may not include any
comments or arguments. Proposed rules should be provided in the format
used for rules in the Code of Federal Regulations and should otherwise
conform to the Comment Filing Procedures set forth in this order.
Comments and reply comments must include a short and concise summary of
the substantive arguments raised in the pleading. Comments and reply
comments also must clearly identify the specific portion of this FNPRM
to which a particular comment or set of comments is responsive. Parties
will not be permitted to file more than a total of ten (10) pages of ex
parte submissions, excluding cover letters, except in response to
direct requests from Commission staff. This would not include written
ex parte filings made solely to disclose an oral ex parte contact. Ex
parte filings in excess of this limit will not be considered as part of
the record in this proceeding.
44. Parties also are asked to submit comments and reply comments on
diskette. Such diskette submissions would be in addition to and not a
substitute for the formal filing requirements addressed above. Parties
submitting diskettes should submit them to Wanda M. Harris, Competitive
Pricing Division of the Common Carrier Bureau, 1919 M Street, NW., Room
518, Washington, DC., 20554. Such a submission should be on a 3.5 inch
diskette formatted in an IBM compatible form using MS DOS 5.0 and
WordPerfect 5.1 software. The diskette should be submitted in ``read
only'' mode. The diskette should be clearly labelled with the party's
name, proceeding, type of pleading (comment or reply comments) and date
of submission. The diskette should be accompanied by a cover letter.
D. Ordering Clause
It is ordered that, pursuant to the authority contained in sections
1, 4(i), 4(j), 201-205, 218, 251, and 332 of the Communications Act as
amended, 47 U.S.C. Secs. 151, 154(i), 154(j), 201-205, 218, 251, and
332, a further notice of proposed rulemaking is hereby adopted.
List of Subjects
47 CFR Part 20
Federal Communications Commission, Local number portability, Radio,
Telecommunications.
47 CFR Part 52
Federal Communications Commission, Cost recovery, Local exchange
carrier, Local number portability, Long-term database methods,
Numbering, Telecommunications.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 96-18479 Filed 7-24-96; 8:45 am]
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