issue-1996-02-20•Federal Register proposed rules — 1996-02-20
Federal Register proposed rules — 1996-02-20
issue-1996-02-20Federal Register proposed rules — 1996-02-20Proposed 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. 96-3826 Mortgage Broker Fee Disclosure Rule: Notice of Future Meetings of Negotiated Rulemaking Advisory Committee
[Federal Register Volume 61, Number 34 (Tuesday, February 20, 1996)]
[Proposed Rules]
[Page 6334]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3826]
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Office of the Assistant Secretary for Housing-Federal Housing
Commissioner
24 CFR Part 3500
[Docket No. FR-3780-N-05]
RIN 2502-AG40
Mortgage Broker Fee Disclosure Rule: Notice of Future Meetings of
Negotiated Rulemaking Advisory Committee
AGENCY: Office of the Assistant Secretary for Housing-Federal Housing
Commissioner, HUD.
ACTION: Notice of committee meetings.
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SUMMARY: The Department has established a Negotiated Rulemaking
Advisory Committee to address certain issues concerning indirect
payments to mortgage brokers and certain other mortgage originators
(retail lenders) and volume-based compensation. The committee, which
consists of representatives with a definable stake in the outcome of a
proposed rule, convened on two prior occasions, the first time on
December 13-14, 1995, and again on January 18-19, 1996, in Washington,
DC. This notice announces the time and place for the next meeting, and
the tentative schedule for subsequent meetings of the committee. Any
changes in the schedule will be announced in the Federal Register as
far in advance of the meetings as possible. All of these meetings are
open to the public.
DATES: The third meeting of the committee will be on February 22-23,
1996. On Thursday, February 22, the meeting will start at 9:00 a.m. and
will end at 5:00 p.m., and on Friday, February 23, the meeting will
start at 9:00 a.m. and run until approximately 4:00 p.m. Additional
meeting dates are included in the text of this notice.
ADDRESSES: The next meeting of the committee will be held in Courtroom
A of the International Trade Commission Building, 500 E Street SW.,
Washington, D.C. 20436. Subsequent meetings announced in this notice
are also expected to be held at the International Trade Commission
Building.
FOR FURTHER INFORMATION CONTACT: David R. Williamson, Director, RESPA
Enforcement Unit, Department of Housing and Urban Development, Room
5241, 451 Seventh Street, S.W., Washington, D.C. 20410-0500; telephone
(202) 708-4560 (this is not a toll-free number); e-mail through
Internet at [email protected]. Persons who are hearing- or
speech-impaired may access the above phone number by calling the
Federal Information Relay Service at 1-800-877-TDDY (1-800-877-8339).
SUPPLEMENTARY INFORMATION: On December 8, 1995 (60 FR 63008), HUD
published a notice announcing the establishment and first meeting of
the Negotiated Rulemaking Advisory Committee on Mortgage Broker
Disclosures, to discuss and negotiate a proposed rule on the treatment
under RESPA, including disclosure requirements, of indirect payments to
retail lenders and of volume-based compensation to mortgage brokers.
The committee convened in Washington, D.C., on December 13-14, 1995,
and January 18-19, 1996. The committee has decided on a schedule of
subsequent meetings to continue its discussions, as follows:
January 18-19, 1996;
February 22-23, 1996;
March 18-19, 1996; and
April 8-9, 1996.
The meeting on February 22-23, 1996, will be at the International
Trade Commission Building, 500 E Street SW., Washington, D.C., and is
expected to continue substantive discussions on regulatory treatment of
fees paid to mortgage brokers. Because of the difficulties in
confirming arrangements for the meeting space and the intervening
Federal Government shutdown and inclement weather, which affected HUD
operations, the Department was unable to publish this notice earlier.
It is expected that subsequent meetings will also be held at the
International Trade Commission Building in Washington, D.C. Any changes
in the schedule will be announced in the Federal Register as far in
advance of the meetings as possible. The meetings are open to the
public, with limited seating available on a first-come, first-served
basis.
Authority: 42 U.S.C. 1437g, 3535(d).
Dated: February 14, 1996.
Nicolas P. Retsinas,
Assistant Secretary for Housing-Federal Housing Commissioner.
[FR Doc. 96-3826 Filed 2-15-96; 11:39 am]
BILLING CODE 4210-27-P
Complete official Federal Register PDF
FR Doc. 96-3695 Structural Measures To Reduce Oil Spills From Existing Tank Vessels Without Double Hulls
[Federal Register Volume 61, Number 34 (Tuesday, February 20, 1996)]
[Proposed Rules]
[Pages 6334-6335]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3695]
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DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Part 157
[CGD 91-045]
RIN 2115-AF27
Structural Measures To Reduce Oil Spills From Existing Tank
Vessels Without Double Hulls
AGENCY: Coast Guard, DOT.
ACTION: Notice of meeting; extension of comment period.
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SUMMARY: The Coast Guard is holding a public meeting on its proposed
regulations under the Oil Pollution Act of 1990 (OPA 90) relating to
structural measures for certain existing tank vessels of 5,000 gross
tons or more that do not have double hulls. There is substantial public
interest in the rulemaking. The Coast Guard also is extending the
comment period an additional 14 days beyond the original 90 day comment
period.
DATES: The meeting will be held March 19, 1996, and will begin at 9:00
a.m. Comments must be received on or before April 10, 1996.
ADDRESSES: The meeting will be held in room 4436-38 and 4436-40,
Department of Transportation, Nassif Building, 400 Seventh Street SW.,
Washington, D.C. 20590. Written comments may be mailed to the Executive
Secretary, Marine Safety Council (G-LRA/3406) (CGD 91-045), U.S. Coast
Guard Headquarters, 2100 Second Street SW., Washington, D.C. 20593-0001
or may be delivered to room 3406 at the above address between 8 a.m.
and 3 p.m., Monday through Friday, except Federal holidays. The
telephone number is (202) 267-1477.
The Executive Secretary maintains the public docket for this
rulemaking. Comments will become part of this docket and will be
available for inspection or copying at room 3406, U.S. Coast Guard
Headquarters. Upon the request of the Department of Transportation, a
new Regulatory Identification Number (RIN) has been assigned to the
structural portion of this rulemaking. The former RIN was 2115-AE01.
FOR FURTHER INFORMATION CONTACT: LCDR Suzanne Englebert, Project
Manager, Standards and Evaluation and Development Division, at (202)
267-6490. This number is equipped to record messages on a 24-hour
basis.
SUPPLEMENTARY INFORMATION: The supplemental notice of proposed
rulemaking (SNPRM) (60 FR 67226),
[[Page 6335]]
published on December 28, 1995, represents part of the Coast Guard's
three-step effort to establish structural and operational measures that
are economically and technologically feasible for reducing the threat
of oil spills from tank vessels without double hulls, as required by
the Oil Pollution Act of 1990 (OPA 90). It analyzes a number of
measures and describes the results of extensive cost and benefit
research on those measures deemed technologically feasible.
As stated in the SNPRM, the Coast Guard will hold a public meeting
on March 19, 1996. The public is invited to comment on the
technological and economic feasibility of structural measures analyzed
in the SNPRM. The public meeting will also enable the public to receive
clarification on the regulatory assessment as published in the SNPRM,
if needed.
Attendance is open to the public. With advance notice, and as time
permits, members of the public may make oral presentations during the
meeting. Persons wishing to make oral presentations should notify the
person listed above under FOR FURTHER INFORMATION CONTACT no later than
the day before the meeting. Written material may be submitted prior to,
during, or after the meeting.
The Coast Guard finds that extending the comment period is
appropriate in conjunction with holding a public meeting. Persons
unable to attend the public meeting are encouraged to submit written
comments. The comment period is extended until April 10, 1996.
Dated: February 13, 1996.
Joseph J. Angelo,
Director for Standards, Office of Marine Safety, Security and
Environmental Protection.
[FR Doc. 96-3695 Filed 2-16-96; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 96-3664 Radio Broadcasting Services; Georgetown and Millsboro, DE
[Federal Register Volume 61, Number 34 (Tuesday, February 20, 1996)]
[Proposed Rules]
[Page 6337]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3664]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MM Docket No. 96-13; RM-8740]
Radio Broadcasting Services; Georgetown and Millsboro, DE
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: This document requests comments on a petition filed by Great
Scott Broadcasting requesting the substitution of Channel 228B for
Channel 228B1 at Georgetown, Delaware, and reallotment of the channel
to Millsboro, Delaware. Great Scott also requests modification of its
license for Station WZBH to show Channel 228B at Millsboro. The
coordinates for Channel 228B at Millsboro are 38-18-53 and 75-13-50. We
shall propose to modify the license for Station WZBH in accordance with
Section 1.420(g) and (i) of the Commission's Rules and will not accept
competing expressions of interest for the use of the channel or require
petitioner to demonstrate the availaility of an additional equivalent
class channel for use by such parties.
DATES: Comments must be filed on or before April 5, 1996, and reply
comments on or before April 22, 1996.
ADDRESSES: Federal Communications Commission, Washington, DC 20554. In
addition to filing comments with the FCC, interested parties should
serve the petitioner's counsel, as follows: Dennis P. Corbett, Deborah
R. Coleman, Leventhal, Senter & Lerman, 2000 I Street, NW., Suite 600,
Washington, DC 20006-1809.
FOR FURTHER INFORMATION CONTACT: Kathleen Scheuerle, Mass Media Bureau,
(202) 418-2180.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice
of Proposed Rule Making, MM Docket No. 96-13, adopted January 31, 1996,
and released February 13, 1996. The full text of this Commission
decision is available for inspection and copying during normal business
hours in the Commission's Reference Center (Room 239), 1919 M Street,
NW., Washington, DC. The complete text of this decision may also be
purchased from the Commission's copy contractors, International
Transcription Services, Inc., 2100 M Street, NW., Suite 140,
Washington, DC 20037, (202) 857-3800.
Provisions of the Regulatory Flexibility Act of l980 do not apply
to this proceeding.
Members of the public should note that from the time a Notice of
Proposed Rule Making is issued until the matter is no longer subject to
Commission consideration or court review, all ex parte contacts are
prohibited in Commission proceedings, such as this one, which involve
channel allotments. See 47 CFR 1.1204(b) for rules governing
permissible ex parte contact.
For information regarding proper filing procedures for comments,
see 47 CFR 1.415 and 1.420.
List of Subjects in 47 CFR Part 73
Radio broadcasting.
Federal Communications Commission.
John A. Karousos,
Chief, Allocations Branch, Policy and Rules Division, Mass Media
Bureau.
[FR Doc. 96-3664 Filed 2-16-96; 8:45 am]
BILLING CODE 6712-01-F
Complete official Federal Register PDF
FR Doc. 96-3663 Radio Broadcasting Services; The Dalles, OR
[Federal Register Volume 61, Number 34 (Tuesday, February 20, 1996)]
[Proposed Rules]
[Pages 6336-6337]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3663]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MM Docket No. 96-12; RM-8741]
Radio Broadcasting Services; The Dalles, OR
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: The Commission requests comments on a petition filed by
LifeTalk Broadcasting Association seeking the allotment of Channel
268C3 to The Dalles, OR, and its reservation for noncommercial
educational use. The allotment could provide The Dalles with its fourth
local FM and first local noncommercial educational service. Channel
268C3 can be allotted to the community with a site restriction of 8.8
kilometers (5.5 miles) southwest, at coordinates 45-31-28 NL; 121-07-22
WL, to avoid a short-spacing to Station KPLZ, Channel 268C, Seattle,
Washington. Use of this channel at the proposed reference coordinates
requires an antenna tower of at least 209 meters (686) feet. Therefore,
petitioner and any
[[Page 6337]]
other interested parties are requested to affirmative state an
intention to apply for and construct a station with the necessary high
tower.
DATES: Comments must be filed on or before April 5, 1996, and reply
comments on or before April 22, 1996.
ADDRESSES: Federal Communications Commission, Washington, DC 20554. In
addition to filing comments with the FCC, interested parties should
serve the petitioner, or its counsel or consultant, as follows: Rudy H.
Dolinsky, Vice President for Technical Development, LifeTalk
Broadcasting Association, 402 E. Yakima Avenue, Suite 1320, Yakima,
Washington 98901 (Petitioner).
FOR FURTHER INFORMATION CONTACT: Leslie K. Shapiro, Mass Media Bureau,
(202) 418-2180.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's
Notice of Proposed Rule Making, MM Docket No. 96-12, adopted January
31, 1996, and released February 13, 1996. The full text of this
Commission decision is available for inspection and copying during
normal business hours in the FCC Reference Center (Room 239), 1919 M
Street, NW., Washington, DC. The complete text of this decision may
also be purchased from the Commission's copy contractor, International
Transcription Services, Inc., (202) 857-3800, 2100 M Street, NW., Suite
140, Washington, DC 20037.
Provisions of the Regulatory Flexibility Act of 1980 do not apply
to this proceeding.
Members of the public should note that from the time a Notice of
Proposed Rule Making is issued until the matter is no longer subject to
Commission consideration or court review, all ex parte contacts are
prohibited in Commission proceedings, such as this one, which involve
channel allotments. See 47 CFR 1.1204(b) for rules governing
permissible ex parte contacts.
For information regarding proper filing procedures for comments,
see 47 CFR 1.415 and 1.420.
List of Subjects in 47 CFR Part 73
Radio broadcasting.
Federal Communications Commission.
John A Karousos,
Chief, Allocations Branch, Policy and Rules Division, Mass Media
Bureau.
[FR Doc. 96-3663 Filed 2-16-96; 8:45 am]
BILLING CODE 6712-01-F
Complete official Federal Register PDF
FR Doc. 96-3662 Radio Broadcasting Services; Waverly, NY, Altoona, PA
[Federal Register Volume 61, Number 34 (Tuesday, February 20, 1996)]
[Proposed Rules]
[Page 6336]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3662]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MM Docket No. 96-11; RM-8742]
Radio Broadcasting Services; Waverly, NY, Altoona, PA
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: The Commission requests comments on a petition filed by WSKG
Public Telecommunications Council seeking the allotment of UHF TV
Channel 57- to Waverly, NY, and its reservation for noncommercial
educational use. To accommodate the Waverly allotment, petitioner also
requests that the allotment reference coordinates for vacant and
unapplied-for channel *57+ at Altoona, PA, be modified. Channel *57-
can be allotted to Waverly in compliance with the Commission's minimum
distance separation requirements with a site restriction of 7.6
kilometers (4.7 miles) north, at coordinates 42-04-33 North Latitude
and 76-30-48 West Longitude, to avoid a short-spacing to Station WGBY-
TV, Channel 57+, Springfield, MA, and Station CITY-TV, Channel 57,
Toronto, Ontario, Canada. The proposed allotment reference coordinates
for Channel *57+ at Altoona, 40-24-30; 78-31-30, are 16.2 kilometers
(10.1 miles) southwest. Waverly and Altoona are both located within 400
kilometers (250 miles) of the U.S.-Canadian border. Therefore,
concurrence of the Canadian Government will be obtained for these
allotments. Waverly is not affected by the Commission's temporary
freeze on new television allotments in certain metropolitan areas.
Altoona, however, lies within the Pittsburgh, PA, freeze zone.
Therefore, even if the proposed change at Altoona is adopted, the
freeze on applications will continue in force.
DATES: Comments must be filed on or before April 5, 1996, and reply
comments on or before April 22, 1996.
ADDRESSES: Federal Communications Commission, Washington, DC 20554. In
addition to filing comments with the FCC, interested parties should
serve the petitioner, or its counsel or consultant, as follows: Richard
D. Marks, Esq., Margaret L. Miller, Esq., Dow, Lohnes & Albertson, 1255
Twenty-third Street, NW. , Suite 500, Washington, DC 20037 (Counsel to
petitioner).
FOR FURTHER INFORMATION CONTACT: Leslie K. Shapiro, Mass Media Bureau,
(202) 418-2180.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's
Notice of Proposed Rule Making, MM Docket No. 96-11, adopted January
31, 1996, and released February 13, 1996. The full text of this
Commission decision is available for inspection and copying during
normal business hours in the FCC Reference Center (Room 239), 1919 M
Street, NW., Washington, DC. The complete text of this decision may
also be purchased from the Commission's copy contractor, International
Transcription Services, Inc., (202) 857-3800, 2100 M Street, NW., Suite
140, Washington, DC 20037.
Provisions of the Regulatory Flexibility Act of 1980 do not apply
to this proceeding.
Members of the public should note that from the time a Notice of
Proposed Rule Making is issued until the matter is no longer subject to
Commission consideration or court review, all ex parte contacts are
prohibited in Commission proceedings, such as this one, which involve
channel allotments. See 47 CFR 1.1204(b) for rules governing
permissible ex parte contacts.
For information regarding proper filing procedures for comments,
see 47 CFR 1.415 and 1.420.
List of Subjects in 47 CFR Part 73
Radio broadcasting.
Federal Communications Commission.
John A Karousos,
Chief, Allocations Branch, Policy and Rules Division, Mass Media
Bureau.
[FR Doc. 96-3662 Filed 2-16-96; 8:45 am]
BILLING CODE 6712-01-F
Complete official Federal Register PDF
FR Doc. 96-3661 Radio Broadcasting Services; Farmersville, TX
[Federal Register Volume 61, Number 34 (Tuesday, February 20, 1996)]
[Proposed Rules]
[Pages 6335-6336]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3661]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MM Docket No. 96-10; RM-8738]
Radio Broadcasting Services; Farmersville, TX
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: The Commission requests comments on a petition by Galen O.
Gilbert proposing the allotment of Channel 260C3 at Farmersville,
Texas, as the community's first local aural transmission service.
Channel 260C3 can be allotted to Farmersville in compliance with the
Commission's minimum distance separation requirements with a site
restriction of 17.9 kilometers (11.2 miles) north in order to avoid
short-spacing conflicts
[[Page 6336]]
with the licensed sites of Station KPLX(FM), Channel 258C, Fort Worth,
Texas; Station WACO(FM), Channel 260C, Waco, Texas, and Station
KJMZ(FM), Channel 262C, Dallas, Texas. The coordinates for Channel
260C3 at Farmersville are 33-19-22 and 96-22-41.
DATES: Comments must be filed on or before April 5, 1996, and reply
comments on or before April 22, 1996.
ADDRESSES: Federal Communications Commission, Washington, DC 20554. In
addition to filing comments with the FCC, interested parties should
serve the petitioner, or its counsel or consultant, as follows: James
P. Riley and Anne Goodwin Crump, Fletcher, Heald & Hildreth, P.L.C.,
1300 North 17th Street, Eleventh Floor, Rosslyn, Virginia 22209
(Counsel for petitioner).
FOR FURTHER INFORMATION CONTACT: Pam Blumenthal, Mass Media Bureau,
(202) 418-2180.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's
Notice of Proposed Rule Making, MM Docket No. 96-10, adopted January
30, 1996, and released February 13, 1996. The full text of this
Commission decision is available for inspection and copying during
normal business hours in the FCC's Reference Center (Room 239), 1919 M
Street, NW., Washington, DC. The complete text of this decision may
also be purchased from the Commission's copy contractor, ITS, Inc.,
(202) 857-3800, 2100 M Street, NW., Suite 140, Washington, DC 20037.
Provisions of the Regulatory Flexibility Act of 1980 do not apply
to this proceeding.
Members of the public should note that from the time a Notice of
Proposed Rule Making is issued until the matter is no longer subject to
Commission consideration or court review, all ex parte contacts are
prohibited in Commission proceedings, such as this one, which involve
channel allotments. See 47 CFR 1.1204(b) for rules governing
permissible ex parte contacts.
For information regarding proper filing procedures for comments,
see 47 CFR 1.415 and 1.420.
List of Subjects in 47 CFR Part 73
Radio broadcasting.
Federal Communications Commission.
John A. Karousos,
Chief, Allocations Branch, Policy and Rules Division, Mass Media
Bureau.
[FR Doc. 96-3661 Filed 2-16-96; 8:45 am]
BILLING CODE 6712-01-F
Complete official Federal Register PDF
FR Doc. 96-3660 Radio Broadcasting Services; Meredosia, IL
[Federal Register Volume 61, Number 34 (Tuesday, February 20, 1996)] [Proposed Rules] [Page 6335] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 96-3660] ----------------------------------------------------------------------- FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [MM Docket No. 95-147; RM-8694] Radio Broadcasting Services; Meredosia, IL AGENCY: Federal Communications Commission. ACTION: Proposed rule, dismissal of. ----------------------------------------------------------------------- SUMMARY: The Commission dismisses the request of Larry K. and Cathy M. Price to allot Channel 228A to Meredosia, IL, as the community's first local aural service. Neither the petitioners nor any other interested party expressed continuing interest in the allotment. Therefore, in accordance with Commission policy, the petition is dismissed. FOR FURTHER INFORMATION CONTACT: Leslie K. Shapiro, Mass Media Bureau, (202) 418-2180. SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's Report and Order, MM Docket No. 95-147, adopted January 31, 1996, and released February 13, 1996. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Center (Room 239), 1919 M Street, NW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, International Transcription Services, Inc., (202) 857-3800, 2100 M Street, NW., Suite 140, Washington, DC 20037. Federal Communications Commission. John A Karousos, Chief, Allocations Branch, Policy and Rules Division, Mass Media Bureau. [FR Doc. 96-3660 Filed 2-16-96; 8:45 am] BILLING CODE 6712-01-F
Complete official Federal Register PDF
FR Doc. 96-3659 Radio Broadcasting Services; Ukiah, CA
[Federal Register Volume 61, Number 34 (Tuesday, February 20, 1996)]
[Proposed Rules]
[Page 6335]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3659]
=======================================================================
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MM Docket No. 96-9; RM-8736]
Radio Broadcasting Services; Ukiah, CA
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: This document requests comments on a petition for rule making
filed by LifeTalk Broadcasting Association (``petitioner''), seeking
the allotment of Channel 246A to Ukiah, California, as that community's
fourth local FM transmission service. Coordinates used for this
proposal are 39-09-00 and 123-12-30.
DATES: Comments must be filed on or before April 5, 1996, and reply
comments on or before April 22, 1996.
ADDRESSES: Secretary, Federal Communications Commission, Washington, DC
20554. In addition to filing comments with the FCC, interested parties
should serve the petitioner, as follows: LifeTalk Broadcasting
Association, Attn: Rudy H. Dolinsky, 402 E. Yakima Avenue, Suite 1320,
Yakima, WA 98901.
FOR FURTHER INFORMATION CONTACT: Nancy Joyner, Mass Media Bureau, (202)
418-2180.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's
Notice of Proposed Rule Making, MM Docket No. 96-9, adopted January 26,
1996, and released February 13, 1996. The full text of this Commission
decision is available for inspection and copying during normal business
hours in the FCC's Reference Center (Room 239), 1919 M Street, NW.,
Washington, DC. The complete text of this decision may also be
purchased from the Commission's copy contractors, International
Transcription Service, Inc., (202) 857-3800, 2100 M Street, NW., Suite
140, Washington, DC 20037.
Provisions of the Regulatory Flexibility Act of l980 do not apply
to this proceeding.
Members of the public should note that from the time a Notice of
Proposed Rule Making is issued until the matter is no longer subject to
Commission consideration or court review, all ex parte contacts are
prohibited in Commission proceedings, such as this one, which involve
channel allotments. See 47 CFR 1.1204(b) for rules governing
permissible ex parte contacts.
For information regarding proper filing procedures for comments,
See 47 CFR 1.415 and 1.420.
List of Subjects in 47 CFR Part 73
Radio broadcasting.
Federal Communications Commission.
John A. Karousos,
Chief, Allocations Branch, Policy and Rules Division, Mass Media
Bureau.
[FR Doc. 96-3659 Filed 2-16-96; 8:45 am]
BILLING CODE 6712-01-F
Complete official Federal Register PDF
FR Doc. 96-3653 Spearmint Oil Produced in the Far West; Emergency Final Decision and Referendum Order on Proposed Amendment of Marketing Order
[Federal Register Volume 61, Number 34 (Tuesday, February 20, 1996)]
[Proposed Rules]
[Pages 6329-6332]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3653]
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DEPARTMENT OF AGRICULTURE
7 CFR Part 985
[Docket No. A0-79-2; FV95-985-4]
Spearmint Oil Produced in the Far West; Emergency Final Decision
and Referendum Order on Proposed Amendment of Marketing Order
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule and referendum order.
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SUMMARY: This emergency final decision would amend the Federal
marketing order for spearmint oil produced in the Far West (Order). The
amendment was proposed by the Department of Agriculture (Department).
The proposed amendment would remove from the regulated production area,
the portions of California and Montana currently regulated under the
Order.
DATES: A referendum shall be conducted from March 2 through March 15,
1996, for the purpose of determining whether the proposed amendment is
favored by producers who were engaged in the production of spearmint
oil in the production area during the representative period. The
[[Page 6330]]
representative period for the purpose of the referendum herein ordered
is June 1, 1994, to May 31, 1995.
FOR FURTHER INFORMATION CONTACT: (1) Caroline C. Thorpe, Marketing
Order Administration Branch, Fruit and Vegetable Division, AMS, USDA,
AMS, room 2526-S, P.O. Box 96456, Washington, DC 20090-6456; telephone,
(202) 720-5127, or FAX: (202) 720-5698.
(2) Robert Curry, Northwest Marketing Field Office, Marketing Order
Administration Branch, Fruit and Vegetable Division, AMS, USDA, 1220
S.W. Third Avenue, room 369, Portland, Oregon, 97204; telephone: (503)
326-2725, or FAX: (503) 326-7440.
SUPPLEMENTARY INFORMATION: Prior documents in this proceeding: Notice
of Hearing issued October 4, 1995, and published in the Federal
Register on October 11, 1995 (60 FR 52869); Correction to Notice of
Hearing issued November 8, 1995, and published in the Federal Register
on November 13, 1995 (60 FR 57144); and Notice of Order Filed on
Proposed Rulemaking concerning the filing of post-hearing briefs issued
November 30, 1995, and published in the Federal Register on December 5,
1995 (60 FR 62229).
This administrative action is governed by the provisions of
sections 556 and 557 of Title 5 of the United States Code and is
therefore excluded from the requirements of Executive Order 12866.
Preliminary Statement
A public hearing was held on November 14, 1995, to consider a
proposed amendment of Marketing Order No. 985 (7 CFR Part 985),
regulating the handling of spearmint oil produced in the Far West,
hereinafter referred to collectively as the ``Order''. The hearing was
held pursuant to the provisions of the Agricultural Marketing Agreement
Act of 1937, as amended (7 U.S.C. 601 et seq.), hereinafter referred to
as the Act, and the applicable rules of practice and procedure
governing proceedings to formulate marketing agreements and marketing
orders (7 CFR Part 900).
The Notice of Hearing contained one proposal by the Department,
which redefined the production area under the Order to exclude those
portions of the area with no historic record of commercial production
of spearmint oil.
After the conclusion of the hearing, the deadline for filing post-
hearing briefs was set at December 22, 1995. Briefs and comments which
were filed, are ruled upon elsewhere in this decision.
The material issues of record are as follows: (1) Should areas with
no historic record of commercial production of spearmint oil continue
to be regulated under the Order? (2) Does the ``production area'' as
defined in the Order constitute the smallest practicable area which
should be regulated consistent with carrying out the policy of the Act?
(3) Do existing circumstances warrant expediting the amendment process
by omitting the recommended decision?
Small Business Considerations
In accordance with the provisions of the Regulatory Flexibility Act
(RFA) (5 U.S.C. 601 et seq.), the Administrator of the AMS has
determined that this action would not have a significant economic
impact on a substantial number of small entities. Small agricultural
service firms, which include handlers regulated under the Order, have
been defined by the Small Business Administration (SBA) (13 CFR
121.601) as those having annual receipts of less than $5,000,000. Small
agricultural producers are defined as those with annual receipts of
less than $500,000.
The purpose of the RFA is to fit regulatory actions to the scale of
business subject to such actions in order that small businesses will
not be unduly or disproportionately burdened. Marketing orders and
rules issued thereunder are unique in that they are brought about
through group action of essentially small entities acting on their own
behalf. Thus, both the RFA and the Act have small entity orientation
and compatibility. Interested persons were invited to present evidence
at the hearing on the probable impact that the proposed amendment to
the Order would have on small businesses.
During the 1994-95 marketing year from June 1, 1994, through May
31, 1995, approximately 8 handlers were regulated under the Order. In
addition, there are about 260 growers of spearmint in the regulated
area. The Act requires the application of uniform rules on regulated
handlers. A minority of handlers and producers covered under the Order
are small businesses. The Order itself is tailored to the size and
nature of these small businesses. Marketing orders, and amendments
thereto, are unique in that they are normally brought about through
group action of entities on their own behalf. Thus, both the RFA and
the Act are compatible with respect to small entities.
The proposed amendment to the Order would delete portions of the
production area currently covered by the Order which have no historic
record of commercial production of spearmint oil. This change would
provide that the Order cover the smallest regional production area
practicable, consistent with program objectives. The proposed amendment
should not have a significant economic impact on handlers or producers.
The amendment proposed herein has been reviewed under Executive
Order 12778, Civil Justice Reform. It is not intended to have
retroactive effect. If adopted, the proposed amendment would not
preempt any State or local laws, regulations, or policies, unless they
present an irreconcilable conflict with the amendment.
The Act provides that administrative proceedings must be exhausted
before parties may file suit in court. Under section 608c(15)(A) of
Act, any handler subject to an order may file with the Secretary a
petition stating that the Order, any provision of the Order, or any
obligation imposed in connection with the Order is not in accordance
with law and requesting a modification of the Order or to be exempted
therefrom. A handler is afforded the opportunity for a hearing on the
petition. After the hearing, the Secretary would rule on the petition.
The Act provides that the district court of the United States in any
district in which the handler is an inhabitant, or has his or her
principal place of business, has jurisdiction in equity to review the
Secretary's ruling on the petition, provided a bill in equity is filed
not later than 20 days after the date of the entry of the ruling.
Findings and Conclusions
The following findings and conclusions are based on evidence
presented at the hearing and the record thereof:
(1) Should areas with no historic record of commercial production
of spearmint oil continue to be regulated under the Order?
The Order regulates Far West spearmint oil through the
establishment of annual allotment percentages and salable quantities.
The objective of such regulation is to balance supplies with market
demand, thereby reducing price fluctuations and improving returns to
producers. The Order, and regulations issued thereunder, apply only to
spearmint oil produced in the defined ``production area''. The Order
currently defines the production area as all the area within the States
of Washington, Idaho, Oregon; that portion of California and Nevada
north of the 37th parallel; and that portion of Montana and Utah west
of the 111th meridian. This definition was established when the Order
came into effect on April 14, 1980 (45 F.R. 25039), and was based on
the
[[Page 6331]]
record of a hearing held in October 1979.
At the time the Order became effective, the production area as
defined was found to be the smallest regional production area
practicable to effectuate the declared policy of the Act. This included
all the areas in the Far West and northwestern United States having the
potential of commercially producing quality spearmint oil.
Witnesses who testified at this amendment hearing included
Department employees, a representative of the Spearmint Oil
Administrative Committee (committee), a grower from Nevada, an official
with the Montana Department of Agriculture, and representatives of the
Montana Mint Growers' Association. All witnesses supported the proposal
to no longer regulate portions of California and Montana under the
Order.
The record supports excluding these two areas from coverage
primarily because there has been no historic record of commercial
production of spearmint oil in those areas. Record evidence shows that
in 1994, there were 1,500 acres of spearmint harvested in Idaho, 10,500
acres in Washington, 1,700 acres in Oregon, and 160 acres in Utah and
Nevada combined. No harvested acreage was recorded for those parts of
California and Montana included under the Order. Likewise, evidence
shows that spearmint oil was produced in all States regulated under the
Order with the exception of California and Montana. There has been no
recorded commercial production of spearmint oil in California or
Montana since the inception of the Order. Testimony at the hearing also
indicated that there is no evidence of current commercial production in
those states.
2. Does the ``production area'' as defined in the Order constitute
the smallest practicable area which should be regulated consistent with
carrying out the policy of the Act?
The evidence of record is that the Order has been successful in
establishing orderly marketing conditions for Far West spearmint oil.
Specifically, the establishment of the Order has reduced price
volatility and ensured market stability. In the 13 years preceding the
Order's promulgation, prices for spearmint oil fluctuated between $4.16
and $11.62 per pound. From 1982 to 1992, while the Order was in effect,
prices ranged between $11.29 and $14.03 per pound.
Inclusion in the production area requires a demonstration that the
areas covered have similar crop and marketing conditions. When the
Order was promulgated, the finding for including California and Montana
in the production area was based on evidence that production and
marketing conditions in those areas would be similar to those of other
spearmint-producing States. This has proven to be incorrect. The record
indicates that land in California and Montana suitable for the
production of spearmint oil is limited, and weather conditions are a
deterrent to consistent spearmint production. Amending the Order by
removing California and Montana, would result in the Order covering the
smallest regional production area practicable to effectuate the
declared policy of the Act.
For the above reasons, it is concluded that the production area
should be redefined to exclude California and Montana. Accordingly, the
production area as defined in this amendment is found to be the
smallest practicable area which should be regulated consistent with
carrying out the policy of the Act.
Modification of Proposed Amendment
As a modification to the proposal, testimony was submitted for the
record in support of the proposed amendment that further proposed the
production area not be reduced again by amendment for at least 5 years.
The intent of the modification was to provide sufficient time to gather
and analyze data on the impact of removing California and Montana from
Order coverage. As submitted for the record, the 5-year period would
provide stability for the industry before any other amendments to
reduce the production area are considered.
However, a prohibition on amending the Order's definition of
production area for 5 years would unduly limit the Secretary's
discretion and authority to administer the Order consistent with the
terms of the Act. Therefore, this modification is denied.
One grower from Nevada testified that the hearing should be
reopened to consider excluding Nevada from the production area.
According to his testimony, there are only 37 acres of commercial
spearmint production in the State of Nevada. As such, the witness
concluded that Nevada is not a significant producer of spearmint oil
and should be excluded from Order coverage.
One post-hearing brief and one comment were submitted in support of
removing Nevada from regulation under the Order. There was no other
information provided by those in the spearmint industry to support this
action.
Record evidence shows that Nevada, unlike California and Montana,
currently has commercial production of spearmint oil, and there has
been production of spearmint oil in that State every year since the
inception of the Order. Record evidence indicates that producing
acreage in Nevada has been as high as 230 acres.
The evidence supports excluding from Order coverage only those
areas with no history of commercial production of spearmint oil. There
was no other evidence presented at the hearing as to whether there is a
``significant'' level of production that should justify an area's
inclusion under the Order, nor any evidence as to what that threshold
level should be. Also, no evidence was presented to show that the
marketing of spearmint oil grown in Nevada does not impact or compete
with the marketing of spearmint oil grown in other areas covered by the
Order.
For these reasons, the proposal to exclude Nevada from the
production area is denied.
This decision calls for a referendum to be conducted among
producers of spearmint oil to determine if they support the proposed
amendment to remove California and Montana from the Order's production
area. If a sufficient number of producers support the amendment, the
Order will continue in its amended form. To become effective, the
amendment must be approved by a two-thirds majority, either by number
of voters favoring it or by volume of production represented in the
referendum. If the amendment is not approved by producers, the
Secretary would consider terminating the Order.
As previously discussed, the Act requires that the Order must cover
the smallest regional production area practicable. Based on the record
evidence it is found that the production area as proposed to be amended
constitutes the smallest practicable area.
3. Do existing circumstances warrant expediting the amendment
process by omitting a recommended decision in this proceeding?
Witnesses who testified at the hearing strongly supported expedited
handling of this formal rulemaking proceeding. The record indicates
that there has been uncertainty within the spearmint oil industry for
some time with respect to the possible redefinition of the Order's
production area. Record evidence shows that such uncertainty has the
potential of hampering the ability of individual producers and handlers
to make sound economic decisions concerning their operations. The
proposed amendment could affect planting, contracting, lending and
other important economic decisions of those in the industry. There
[[Page 6332]]
was no evidence provided in opposition to expediting this proceeding.
Only through omission of a recommended decision in this proceeding
is it possible to have the outcome of the amendment and the future of
the Order determined prior to the next marketing year, which begins
June 1, 1996. As stated on the record, this is very important to
producers and handlers of spearmint oil who need to plan their
marketing and production strategies for next year.
It is therefore found that good cause exists for omission of a
recommended decision in accordance with Sec. 900.12(d) of the rules of
practice and procedure governing proceedings to formulate marketing
agreements and marketing orders (7 CFR Part 900).
Rulings on Briefs Filed by Interested Persons
Four briefs and comments were filed in this proceeding. None
opposed the proposed amendment.
One brief and one comment were filed after the filing deadline.
However, they did not introduce issues which were different from those
covered at the hearing or in the other briefs and comments.
The comments and briefs were carefully considered, along with
evidence in the record, in making the findings and reaching the
conclusions contained herein. To the extent that any suggested findings
or conclusions contained in any of the briefs or arguments are
inconsistent with the findings and conclusions contained herein, the
request to make such findings or to reach such conclusions is denied on
the basis of facts found and stated in connection with this decision.
Marketing Order
Annexed hereto and made a part hereof is a document entitled,
``Order Amending the Order Regulating the Handling of Spearmint Oil
Produced in the Far West.'' This document has been decided upon as the
detailed and appropriate means of effectuating the foregoing findings
and conclusions. It is hereby ordered, That this entire decision, be
published in the Federal Register.
Referendum Order
It is hereby directed that a referendum be conducted in accordance
with the procedure for the conduct of referenda (7 CFR 900.400 et seq.)
to determine whether the issuance of the annexed order amending the
order regulating the handling of spearmint oil produced in the Far West
is approved or favored by producers, as defined under the terms of the
order, who during the representative period were engaged in the
production of spearmint oil in the Far West.
The representative period for the conduct of such referendum is
hereby determined to be June 1, 1994, through May 31, 1995.
The agents of the Secretary to conduct such referendum are hereby
designated to be Gary D. Olson and Robert J. Curry, Marketing Order
Administration Branch, Northwest Marketing Field Office, Fruit and
Vegetable Division, AMS, USDA, 1220 S.W. Third Avenue Room 369
Portland, Oregon 97204, telephone (503) 326-2724; or FAX (503) 326-
7440.
In accordance with the Paperwork Reduction Act of 1980 [44 U.S.C.
chapter 35], the ballot materials used in the referendum herein ordered
have been submitted to and approved by the Office of Management and
Budget (OMB) and have been assigned OMB No. 0581-0065 for spearmint
oil. It has been estimated that it will take an average of 10 minutes
for each of the approximately 260 producers of Far West Spearmint to
cast a ballot. Participation is voluntary. Ballots postmarked after
February 24, 1996, will not be included in the vote tabulation.
List of Subjects in 7 CFR Part 985
Marketing agreements, Oils and fats, Reporting and recordkeeping
requirements, Spearmint oil.
Dated: February 13, 1996.
Michael V. Dunn,
Assistant Secretary, Marketing and Regulatory Programs.
Order Amending the Order Regulating the Handling of Spearmint Oil
Produced in the Far West 1
\1\ This order shall not become effective unless and until the
requirements of Sec. 900.14 of the rules of practice and procedure
governing proceedings to formulate marketing agreements and
marketing orders have been met.
---------------------------------------------------------------------------
Findings and Determinations
The findings and determinations hereinafter set forth are
supplementary and in addition to the findings and determinations
previously made in connection with the issuance of the order; and
all of said previous findings and determinations are hereby ratified
and affirmed, except insofar as such findings and determinations may
be in conflict with the findings and determinations set forth
herein.
(a) Findings and Determinations Upon the Basis of the Hearing
Record. Pursuant to the provisions of the Agricultural Marketing
Agreement Act of 1937, as amended (7 U.S.C. 601 et seq.), and the
applicable rules of practice and procedure effective thereunder (7
CFR Part 900), a public hearing was held on the proposed amendment
to the Marketing Agreement and Order No. 985 (7 CFR Part 985),
regulating the handling of spearmint oil produced in the Far West.
Upon the basis of the evidence introduced at such hearing and
the record thereof, it is found that:
(1) The order, as hereby proposed to be amended, and all of the
terms and conditions thereof, will tend to effectuate the declared
policy of the Act;
(2) The order, as hereby proposed to be amended, regulates the
handling of spearmint oil produced in the Far West in the same
manner as, and is applicable only to persons in the respective
classes of oil specified in the marketing order upon which hearings
have been held;
(3) The order, as hereby proposed to be amended, is limited in
application to the smallest regional production area which is
practicable, consistent with carrying out the declared policy of the
Act, and the issuance of several orders applicable to subdivisions
of the production area would not effectively carry out the declared
policy of the Act;
(4) The order, as hereby proposed to be amended, prescribes,
insofar as practicable, such different terms applicable to different
parts of the production area as are necessary to give due
recognition to the differences in the production and marketing of
spearmint oil grown in the production area; and
(5) All handling of spearmint oil produced in the production
area is in the current of interstate or foreign commerce or directly
burdens, obstructs, or affects such commerce.
Order Relative to Handling
It is therefore ordered, That on and after the effective date
hereof, all handling of spearmint oil produced in the Far West shall
be in conformity to, and in compliance with, the terms and
conditions of the said order as hereby proposed to be amended as
follows:
PART 985--MARKETING ORDER REGULATING THE HANDLING OF SPEARMINT OIL
PRODUCED IN THE FAR WEST
1. The authority citation for 7 CFR Part 985 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
2. Section 985.5 is revised as follows:
Sec. 985.5 Production area.
Production area means all the area within the States of Washington,
Idaho, Oregon, and that portion of Nevada north of the 37th parallel
and that portion of Utah west of the 111th meridian. The area shall be
divided into the following districts:
(a) District 1. State of Washington.
(b) District 2. The State of Idaho and that portion of the States
of Nevada and Utah included in the production area.
(c) District 3. The State of Oregon.
[FR Doc. 96-3653 Filed 2-16-96; 8:45 am]
BILLING CODE 3410-02-P
Complete official Federal Register PDF
FR Doc. 96-3652 Administration of Tobacco Tariff-Rate Quota
[Federal Register Volume 61, Number 34 (Tuesday, February 20, 1996)]
[Proposed Rules]
[Pages 6332-6334]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3652]
=======================================================================
-----------------------------------------------------------------------
[[Page 6333]]
OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE
19 CFR Part 132
Administration of Tobacco Tariff-Rate Quota
AGENCY: Office of the United States Trade Representative.
ACTION: Advance notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Office of the United States Trade Representative (USTR) is
soliciting comments and views on the administration of the tariff-rate
quota on leaf tobacco, established on September 13, 1995, which is
currently operating on a first-come, first-served basis.
DATES: Public comments are due by noon May 20, 1996.
ADDRESSES: Comments may be sent to: Sybia Harrison, room 222, Office of
the U.S. Trade Representative, 600 17th Street NW., Washington, DC
20508, attention: Tobacco Tariff-Rate Quota.
FOR FURTHER INFORMATION CONTACT:
Tom Perkins, Senior Economist, Office of Agricultural Affairs, USTR,
(202) 395-6127; or Rachel Shub, Assistant General Counsel, USTR, (202)
395-7305.
SUPPLEMENTARY INFORMATION: Presidential Proclamation 6821 (60 FR 47663
(September 13, 1995)) established a tariff-rate quota (TRQ) on imports
of flue-cured, burley and other light air-cured tobaccos that are
imported for the manufacture of cigarettes. Under the TRQ, a tariff
equal to the concession rates negotiated in the Uruguay Round is
applied to tobacco imports until the in-quota quantity is filled, after
which a tariff rate of 350% ad valorem is applied. For the quota year
beginning on September 13, 1995, the in-quota quantity of the TRQ is
150,450 tons, which is subdivided into specific allocations for
Argentina, Brazil, Chile, the European Union, Guatemala, Malawi,
Philippines, Thailand, Zimbabwe, and a general allocation for countries
other than those allocated specific TRQ quantities. Presidential
authority to establish the TRQ is provided by section 125(c) of the
Trade Act of 1974 (19 U.S.C. 2135(c)), section 421 of the Uruguay Round
Agreements Act (19 U.S.C. 2135 note) and other provisions of law
referenced in Presidential Proclamation 6821. The proclamation also
provides that the quantitative limitations of the TRQ are subject to
regulations as may be issued by USTR or its designated agency.
The TRQ is currently operating on a first-come, first-served basis,
under the U.S. Customs Service's quota regulations at 19 CFR 132
(``Customs Quota regulations''). These regulations establish
requirements for determining priority and status for importers
presenting tobacco for importation and set forth specific procedures
for prorating a TRQ category (such as a country-specific allocation) in
the event the category is oversubscribed. Customs Quota regulations
currently are applied to U.S. TRQs on beef, peanuts, peanut butter,
certain sugar-containing products, certain cotton and cotton waste, and
certain dairy products, as well as TRQ's applicable to Mexico (under
the North American Free Trade Agreement) on orange juice, tomatoes and
other safeguard products commodities.
Some cigarette manufacturers have suggested that the TRQ should be
administered by means of import licenses issued to manufacturers in
order to permit the orderly marketing of tobacco in the U.S. market.
Accordingly, the Office of the United States Trade Representative
(USTR) is soliciting comments on the administration of the TRQ. If
comments reflect substantial problems or concerns regarding the current
operation of the TRQ, USTR will consider alternative approaches,
including an import licensing program. Any alternative method should
aim to facilitate reasonable, efficient and orderly access to the U.S.
tobacco market for those countries to which a quota allocation has been
made, and provide equitable and efficient access for U.S. importers,
manufacturers and other entities that import or use tobacco affected by
the TRQ.
To better assess the need for change and the significance of that
need, USTR invites public comment on the current operation of the TRQ.
Comments should address the extent to which the current system is
orderly, economically efficient and equitable. USTR is interested in
aspects of the current system such as (1) the costs and benefits to the
U.S. economy as a whole as well as firms, foreign and domestic, that
participate in the markets for imported tobacco and related markets;
(2) the distribution across firms of the TRQ, including market
competition and concentration; (3) market access for small businesses;
(4) the effect on the U.S. price support program; and (5) the impact on
timing and storage of imports, and related costs and benefits; (6) the
impact on exporters if other countries were to adopt similar practices
for TRQs on products from the U.S.; and (7) administrative costs.
With respect to any alternative approaches, USTR would appreciate
views on how such programs might be administered. For example, for
licensing, comments could address: (1) the reasons and legal basis for
adopting such an approach; (2) to whom and by what mechanism import
licenses should be issued; (3) on what basis licenses should be issued
(including eligibility criteria, license validity period and license
renewability); (4) how licenses could be issued in light of the
country-specific allocations and market demand for different types of
tobacco; (5) how to address failure of importers to utilize their
licenses; (6) the extent to which new importers should be issued
licenses, taking into account the desirability of issuing licenses in
sizes that are commercially viable; (7) whether licenses should be
transferable, and under what conditions; (8) the benefits, costs, and
administrative and distributional considerations associated with a
market in licenses, including secondary markets; (9) the effect of any
proposed alternative on the U.S. economy as a whole as well as firms,
foreign and domestic, that participate in the markets for imported
tobacco and related markets; (10) any effect on the U.S. price support
program for tobacco; (11) effect of any proposed alternatives on small
businesses; (12) effect of any proposed alternatives on market
competition and concentration; (13) administrative costs that might be
associated with a proposed alternative; (14) the impact of proposed
alternatives on timing and storage of imports, and related costs and
benefits; (15) the impact on exporters if other countries were to adopt
similar practices for TRQs on products from the U.S.; and (16) any
other issues arising in the context of a particular alternative to the
current operation of the TRQ.
Persons submitting written comments should provide a statement, in
ten copies, by noon, May 20, 1996 to Sybia Harrison, Office of the U.S.
Trade Representative, Room 222, 600 17th Street, NW., Washington, DC
20508, attention: Tobacco Tariff-Rate Quota. Non-confidential
information received will be available for public inspection by
appointment, in the USTR Reading Room, Room 101, Monday through Friday,
10:00 a.m. to 12:00 noon and 1:00 p.m. to 4:00 p.m. For an appointment
call Brenda Webb at (202) 395-6186. Business confidential information
will be subject to the requirements of 15 CFR 2003.6. Any business
confidential material must be clearly marked as such on the cover
letter or page and each succeeding page,
[[Page 6334]]
and must be accompanied by a non-confidential summary thereof.
Michael Kantor,
United States Trade Representative.
[FR Doc. 96-3652 Filed 2-16-96; 8:45 am]
BILLING CODE 3190-01-M
Complete official Federal Register PDF
FR Doc. 96-3631 National Environmental Policy Act Implementing Procedures
[Federal Register Volume 61, Number 34 (Tuesday, February 20, 1996)]
[Proposed Rules]
[Pages 6414-6426]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3631]
[[Page 6413]]
_______________________________________________________________________
Part II
Department of Energy
_______________________________________________________________________
10 CFR Part 1021
National Environmental Policy Act Implementing Procedures; Proposed
Rule
Federal Register / Vol. 61, No. 34 / Tuesday, February 20, 1996 /
Proposed Rules
[[Page 6414]]
DEPARTMENT OF ENERGY
10 CFR Part 1021
National Environmental Policy Act Implementing Procedures
AGENCY: Department of Energy.
ACTION: Notice of Proposed Rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Department of Energy (DOE or the Department) proposes to
amend its existing regulations governing compliance with the National
Environmental Policy Act (NEPA). The proposed amendments are based upon
three years of experience with the existing regulations and are
intended to maintain quality while improving DOE's efficiency in
implementing NEPA requirements by reducing costs and preparation time.
In addition, because DOE's missions, programs, and policies have
evolved in response to changing national priorities since the current
regulations were issued in 1992, corresponding changes in the
Department's NEPA procedures are needed.
The Department is proposing changes in subparts A, C and D of the
existing regulations. Among the proposed changes are various revisions
to the lists of ``typical classes of actions'' (appendices A, B, C, and
D to subpart D), including the addition of new categorical exclusions,
modifications that expand or remove existing categorical exclusions,
and clarifications. Other proposed changes pertain to the DOE
requirement for an implementation plan for each environmental impact
statement and DOE's required content for findings of no significant
impact. DOE also proposes to clarify its public notification
requirements for records of decision.
DATES: Comments must be received by April 5, 1996, to ensure
consideration. Late comments will be considered to the extent
practicable. DOE is not scheduling any public meetings on the proposed
amendments, but will arrange a public meeting if the public expresses
sufficient interest.
ADDRESSES: Comments on the proposed rule should be addressed to Carol
M. Borgstrom, Director, Office of NEPA Policy and Assistance, EH-42,
U.S. Department of Energy, 1000 Independence Avenue SW., Washington,
D.C., 20585-0119. Comments may be hand-delivered to the same address on
workdays between the hours of 8:00 a.m. and 4:30 p.m. Comments may also
be sent by electronic mail to the following internet address:
[email protected].
FOR FURTHER INFORMATION CONTACT: Carol M. Borgstrom, Director, Office
of NEPA Policy and Assistance, at the above address; telephone (202)
586-4600 or leave a message at (800) 472-2756.
SUPPLEMENTARY INFORMATION:
I. Background
The National Environmental Policy Act of 1969 (42 U.S.C. 4321 et
seq.) requires that Federal agencies prepare environmental impact
statements for major Federal actions that may ``significantly affect
the quality of the human environment.'' NEPA also created the
President's Council on Environmental Quality, which issued regulations
in 1978 implementing the procedural provisions of NEPA. Among other
requirements, the Council on Environmental Quality NEPA regulations (40
CFR Parts 15001508) require Federal agencies to adopt their own
implementing procedures to supplement the Council's regulations. DOE's
implementing procedures (regulations) are codified at 10 CFR Part 1021.
II. Purpose of the Proposed Amendments
The proposed amendments are intended to maintain quality while
improving the efficiency of DOE's implementation of NEPA by clarifying
and streamlining certain DOE requirements, thereby reducing
implementation costs and time. This approach is consistent with the DOE
Secretarial Policy Statement on NEPA (June 1994), which encourages
actions to streamline the NEPA process and make the process more useful
to decision makers and the public without sacrificing quality. Full
compliance with the letter and spirit of NEPA is an essential priority
for DOE. In addition, DOE's missions, programs, and policies have
evolved in response to changing national priorities since the current
DOE NEPA regulations were issued in 1992, and DOE needs to make
conforming changes in its NEPA regulations.
III. Description of the Proposed Amendments
This section describes and explains the proposed amendments to the
existing DOE NEPA regulations at 10 CFR Part 1021. The proposed changes
reflect DOE's three years of experience with the existing regulations.
DOE has consulted with the Council on Environmental Quality regarding
these proposed amendments to the regulations, in accordance with 40 CFR
1507.3.
A. Proposed Amendments to Subpart A--General
Subpart A contains, among other provisions, the definitions of
terms that are used in the regulations and assigns responsibility for
overall review of DOE NEPA compliance. DOE proposes to remove the
definition of ``EIS Implementation Plan'' in section 1021.104, to be
consistent with a proposed change to subpart C, section 1021.312 that
is explained below. DOE also proposes to update the name and address of
its Office of NEPA Policy and Assistance in section 1021.105.
B. Proposed Amendments to Subpart C--Implementing Procedures
DOE proposes to remove two requirements and clarify a third
requirement in subpart C. DOE proposes to remove the requirements to
(1) prepare an implementation plan for an environmental impact
statement, and (2) summarize an environmental assessment in a finding
of no significant impact. DOE also proposes to modify its procedures
regarding public notice of its records of decision. Each of the
proposed changes is consistent with the Council on Environmental
Quality NEPA regulations. The reasons for these proposed deletions and
modifications are presented below.
Environmental Impact Statement Implementation Plan
The existing DOE NEPA regulations require DOE to prepare an
implementation plan for each environmental impact statement (section
1021.312) to guide the preparation of the environmental impact
statement and to record the results of the scoping process. The plan
must be completed as soon as possible after the close of the public
scoping process, but in any event before issuing the draft
environmental impact statement. A DOE implementation plan must include:
a statement of the planned scope and content of the environmental
impact statement; the purpose and need for action; a description of the
scoping process and the results, including a summary of comments
received and their disposition; target schedules; anticipated
consultations with other agencies; and a disclosure statement (as
required at 40 CFR 1506.5(c)) executed by any contractors assisting in
the preparation of the environmental impact statement. DOE must make
implementation plans (and any revisions) available in public reading
rooms and other appropriate locations for inspection, and provide
copies upon written request. DOE appears to be the
[[Page 6415]]
only Federal agency that requires the preparation of an environmental
impact statement implementation plan.
To simplify the DOE NEPA process, DOE proposes to eliminate the
requirement to prepare an implementation plan for an environmental
impact statement, which would have the effect of making such plans
optional. DOE believes that eliminating the implementation plan
requirement would result in cost and time savings, without meaningfully
reducing public involvement in the DOE environmental impact statement
process.
The requirement to prepare an environmental impact statement
implementation plan has been part of DOE's NEPA procedures since 1979.
Implementation plans can serve useful functions in DOE's environmental
impact statement planning and in documenting public concerns before
issuing the draft environmental impact statement. In practice, however,
implementation plans often have contained more detail than was
originally envisioned, and have diverted resources from the more
important task of preparing the environmental impact statement itself.
With the Department's emphasis on improving its NEPA process by
cutting process time (among other measures put forth in the Secretarial
Policy Statement on NEPA), the formal implementation plan requirements
have in some cases hindered rather than facilitated progress toward the
prompt issuance of an environmental impact statement. Under the
proposed amendment, DOE would continue to encourage its managers to use
brief implementation plans as internal management tools, particularly
for complex or broad proposed actions, but would not require that such
plans be prepared for all environmental impact statements as a matter
of rule. The proposed amendment would not preclude the Department from
implementing, as part of its internal procedures, other options for
environmental impact statement planning.
Elimination of the requirement for an implementation plan would not
diminish the requirement to consider public comments received during
scoping. DOE would continue to conduct public scoping activities before
preparing draft environmental impact statements, and provide
transcripts or notes of the public scoping meetings in public reading
rooms. DOE would fully consider public comments and factor them into
preparation of the draft environmental impact statement as appropriate,
and would execute contractor disclosure statements in accordance with
40 CFR 1506.5(c).
Record of Decision
DOE proposes to revise section 1021.315(c) in two respects
concerning public notification procedures for records of decision.
First, to reduce Federal Register publication costs, DOE proposes to
amend the current requirement to publish all records of decision in the
Federal Register in favor of an option to publish only a notice that
provides a summary of the record of decision and an announcement of the
availability of the full record of decision. Copies of the full record
of decision containing all the information required under the Council
on Environmental Quality's regulations (specifically, 40 CFR 1502.2)
would remain available upon request. Second, DOE proposes to clarify
that, if the decision has been publicized by other means (e.g., press
releases or announcements in local media), DOE need not defer taking
action until its record of decision or the notice has been published in
the Federal Register. This clarification as to when DOE may take an
action does not reflect any change in DOE's current practices, but
simply reduces the chance that the meaning of the current section
1021.315(c) could be misinterpreted.
Finding of No Significant Impact
DOE proposes to remove the current Sec. 1021.322(b)(1) relating to
the requirement that a DOE finding of no significant impact must
summarize the supporting environmental assessment, including a brief
description of the proposed action and alternatives considered,
environmental factors considered, and projected impacts. Instead, on a
case-by-case basis and in accordance with 40 CFR 1508.13, DOE would
either incorporate the environmental assessment by reference into the
finding of no significant impact and attach the environmental
assessment to the finding of no significant impact, or summarize the
environmental assessment in the finding. The elimination of the
requirement for a summary would give DOE flexibility, with potential
for time and cost savings, in preparing findings of no significant
impact.
C. Proposed Amendments to Subpart DTypical Classes of Action
Four appendices to subpart D set forth the classes of DOE actions
that normally would be categorically excluded (appendices A and B),
that normally would require preparation of an environmental assessment
but not necessarily an environmental impact statement (appendix C), and
that normally would require preparation of an environmental impact
statement (appendix D). A categorical exclusion is defined as a
category of actions that do not individually or cumulatively have a
significant effect on the human environment and for which, therefore,
neither an environmental assessment nor environmental impact statement
is required.
Proposed changes in appendices A through D of subpart D are
intended to adjust normal levels of DOE's NEPA review and to add,
modify (expand or remove), and clarify classes of actions based on DOE
experience under the existing regulations. In considering the proposed
revisions, reviewers should bear in mind that listing a class of
actions in these appendices does not constitute a conclusive
determination regarding the appropriate level of NEPA review for a
proposed action. Rather, the listing creates a presumption that the
defined level of review is appropriate for the listed actions. As
indicated in Sec. 1021.400(c), that presumption does not apply when
there are extraordinary circumstances related to the proposed action
that may affect the significance of the environmental effects of the
action.
The following conversion table shows the relation of listings in
the existing Appendices to the proposed revisions. The conversion table
shows whether listings have been modified, clarified, removed, or
added. The numbering of some categorical exclusions would change due to
the deletion or consolidation of existing categorical exclusions and,
in one case, the division of one current categorical exclusion into two
separate exclusions. The numbers of deleted categorical exclusions
would be reused. Any existing categorical exclusions not listed are not
affected by any proposed changes.
Conversion Table
------------------------------------------------------------------------
Existing Proposed
------------------------------------------------------------------------
A.7............................. A.7............... Clarified.
B1.3............................ B1.3.............. Clarified.
B1.8............................ B1.8.............. Modified.
B1.13........................... B1.13............. Modified.
B1.15........................... B1.15............. Modified.
B1.18........................... B1.18............. Modified.
B1.21........................... B1.21............. Modified.
B1.22........................... B1.22 & B1.23..... Clarified.
B1.24-B1.33....... Added.
B2.6.............. Added.
B3.1............................ B3.1.............. Clarified.
B3.3............................ B3.3.............. Clarified.
B3.6............................ B3.6.............. Modified.
B3.10........................... B3.6.............. Modified.
B3.10............. Added.
B3.12-B3.13....... Added.
B4.1............................ B4.1.............. Modified.
[[Page 6416]]
B4.2............................ B4.2.............. Modified.
B4.3............................ B4.3.............. Modified.
B4.6............................ B4.6.............. Clarified.
B4.10-B4.13..................... B4.10-B4.13....... Modified.
B5.3............................ B5.3.............. Modified.
B5.5............................ B5.5.............. Modified.
B5.9-B5.11...................... B5.9-B5.11........ Clarified.
B5.12-B5.16..................... .................. Removed.
B5.12............. Added.
B6.1............................ B6.1.............. Modified.
B6.4............................ .................. Removed.
B6.4.............. Added.
B6.5............................ B6.5.............. Clarified.
B6.9.............. Added.
C1.............................. C1................ Reserved.
C4.............................. C4................ Modified.
C7.............................. C7................ Modified.
C9.............................. C9................ Modified.
C10............................. C10............... Reserved.
C11............................. C11............... Modified.
C14............................. C14............... Modified.
C16............................. C16............... Modified.
D1.............................. D1................ Modified.
D7.............................. D7................ Modified.
D10............................. D10............... Modified.
------------------------------------------------------------------------
Most of the proposed changes in appendices A through D relate to
categorical exclusions. Reviewers should evaluate these proposed
changes in the full context of the DOE regulations for categorical
exclusions. Under the regulations, before a proposed action may be
categorically excluded, DOE must determine in accordance with
Sec. 1021.410(b) that: (1) The proposed action fits within a class of
actions listed in appendix A or B to subpart D, (2) there are no
extraordinary circumstances related to the proposal that may affect the
significance of the environmental effects of the action, and (3) there
are no connected or related actions with cumulatively significant
impacts and, as appropriate, the proposed action is a permissible
interim action. In addition, to fit within a class of actions that is
normally categorically excluded, a proposed action must include certain
conditions as integral elements (appendix B, paragraphs B(1) through
(4)). Briefly, these conditions ensure that an excluded action will
not: Threaten violation of applicable requirements, require siting and
construction of waste management facilities, disturb hazardous
substances such that there would be uncontrolled or unpermitted
releases, or adversely affect environmentally sensitive resources.
DOE believes that the proposed amendments to appendices A and B
constitute classes of action that do not individually or cumulatively
have a significant effect on the human environment. After DOE considers
public comments on the proposals, any such final categorical exclusions
that are codified in the NEPA regulations would be covered by a finding
to that effect in section 1021.410(a).
Classes of Actions Listed in Appendix A
The only proposed amendment to appendix A is a clarification of
paragraph A7.
Proposed Clarification A7--Transfer of property, use
unchanged.
DOE is proposing to clarify the meaning of ``property'' in
paragraph A7 by explicitly including both personal property (e.g.,
equipment and materials) and real property (e.g., permanent structures
and land), and to clarify that the intent has always been that the
impacts would remain essentially the same after the transfer.
Classes of Actions Listed in Appendix B
The proposed amendments to appendix B are of three types: (1) New
categorical exclusions, (2) modifications (expansion or removal) of
categorical exclusions, and (3) clarifications of categorical
exclusions.
(1) New Categorical Exclusions
Seventeen new categorical exclusions are proposed for sections B1,
B2, B3, B5, and B6, as described below. In three cases, the number
designating a current categorical exclusion (B3.10, B5.12, and B6.4) is
used for a proposed categorical exclusion. The current B3.10 would be
incorporated into proposed B3.6. The current B5.12 and B6.4 would be
replaced with new categorical exclusions.
Proposed B1.24--Transfer of property/residential,
commercial, industrial use.
This proposed categorical exclusion applies to the transfer, lease,
disposition, or acquisition of interests in uncontaminated facilities
(and accompanying land); that is, the facilities and accompanying land
do not contain contaminants at a level or in a form that would pose a
threat to public health or the environment. Unlike under categorical
exclusion A7, the use of the facilities may change, but the new use
must result in generally similar environmental impacts and must not
result in greater environmental discharges. That is, there may not be
decreases in quality, or increases in the volumes, concentrations, or
discharge rates of wastes, air emissions, or water effluents compared
to those before the transfer, lease, disposition, or acquisition of
interests. Based on DOE's experience, these types of actions normally
would not have the potential for significant impact.
Proposed B1.25--Transfer of property/habitat preservation,
wildlife management.
This proposed categorical exclusion applies to the transfer, lease,
disposition, or acquisition of interests in uncontaminated land for
habitat preservation or wildlife management. DOE has engaged in many
habitat preservation and wildlife management actions. In DOE's
judgment, these types of actions normally would not have the potential
for significant impact. Any action that would change the habitat would
be subject to NEPA analysis.
Proposed B1.26--Siting/construction/operation/
decommissioning of small water treatment facilities, generally less
than 250,000 gallons per day capacity.
This proposed categorical exclusion applies to small wastewater,
potable water, surface water, and sewage treatment facilities that
generally do not exceed 250,000 gallons per day capacity. DOE's
experience with siting and construction (including expansion,
modification and replacement) of small-scale water treatment projects
shows that they are often associated with environmental improvements at
DOE sites and that they normally have no potential for significant
impacts. The Department is also proposing to categorically exclude
temporary groundwater contaminant containment measures that could
include the small-scale construction of water treatment facilities
(proposed paragraph B6.9).
Proposed B1.27--Facility deactivation.
This proposed categorical exclusion applies to facility
deactivation, specifically the disconnection of utilities such as
water, steam, telecommunications, and electrical power. DOE has
extensive experience in facility deactivation and believes that such
activities normally do not have the potential for significant impact.
Proposed B1.28--Minor activities to place a facility in an
environmentally safe condition, no proposed uses.
This proposed categorical exclusion applies to minor activities
that are required to place a facility in an environmentally safe
condition where there is no proposed use for the facility. These
activities would include, but are not limited to, reducing surface
contamination and removing materials, equipment or waste, such as final
defueling of a reactor, where there are adequate existing facilities
for treatment, storage, or disposal of the materials. These activities
would not include conditioning, treatment or processing of spent
nuclear fuel, high-level waste, or special nuclear materials.
[[Page 6417]]
DOE's experience with such environmentally beneficial activities
indicates that the activities normally do not pose a potential for
significant environmental impact.
Proposed B1.29--Siting/construction/operation/
decommissioning of onsite disposal facility for construction and
demolition waste.
This proposed categorical exclusion applies to establishing and
operating a small (generally less than 10-acre) disposal site for
uncontaminated construction and demolition waste as defined in the
Environmental Protection Agency's regulations under the Resource
Conservation and Recovery Act at 40 CFR 243.101. In DOE's experience
and judgment, small-scale disposal of such materials normally would
pose no potential for significant impacts.
Proposed B1.30--Transfer actions.
This proposed categorical exclusion applies to transfer actions, in
which materials, equipment, or wastes are moved to a new location. The
categorical exclusion would apply to actions in which transportation is
the predominant proposed activity and the amount and type of relocated
materials, equipment, or waste is incidental to the amount of that
material, equipment, or waste that is already a part of operations at
the receiving site. The transfers that would be categorically excluded
are not regularly scheduled as part of routine operations, and could
include, for example, moving a few drums of waste to an authorized
disposal facility, or moving replacement equipment or supplies. DOE's
experience indicates that transportation activities under DOE's
standard practices pose no potential for significant impacts.
Proposed B1.31--Relocation/operation of machinery and
equipment.
The proposed categorical exclusion applies to the relocation and
subsequent operation of machinery and equipment including, but not
limited to, analytical laboratory apparatus, electronic hardware,
maintenance equipment, and health and safety equipment, where use of
the relocated items is similar to their former use, and consistent with
the missions of the receiving facility. In DOE's experience, there is
no material change in the environmental status quo and no potential for
significant impact from use of relocated machinery and equipment.
Proposed B1.32--Restoration, creation, or enhancement of
small wetlands.
The proposed categorical exclusion applies to the restoration,
creation, or enhancement of small wetlands, but only when the action
does not adversely affect any other environmental resources. In
addition, the Department would coordinate the action with cognizant
Federal and State regulators to assure compliance with other land use
plans and to benefit from their advice. In DOE's judgment, the
restoration, creation, or enhancement of a small wetland as described,
which is normally considered to be an environmentally beneficial
measure, is inherently unlikely to pose the potential for significant
environmental impact. (Also see the proposed modification to C9 below.)
Proposed B1.33--Traffic flow adjustments, existing roads.
This proposed categorical exclusion applies to traffic flow
adjustments on existing roads at DOE sites, such as installation of
stop signs or traffic lights and changes in traffic direction (e.g.,
changing a two-way street to a one-way street.) Such an action normally
would not pose the potential for significant environmental impacts.
Proposed B2.6--Packaging/transportation/storage of
radioactive sources upon request by the Nuclear Regulatory Commission
or other cognizant agency.
This proposed categorical exclusion applies to the exercise of
DOE's responsibilities under the Atomic Energy Act relating to certain
requests by the Nuclear Regulatory Commission or other cognizant
agencies in the interest of protecting the public from exposure to
radiation. For example, on occasion, the Nuclear Regulatory Commission
has requested that DOE retrieve discrete radioactive sources from a
Commission-licensed private person or company that would not or could
not safely manage the material. The categorical exclusion applies to
all types of radioactive materials that the Nuclear Regulatory
Commission categorically excludes for possession and use by its
licensees. DOE believes that for radioactive materials that the Nuclear
Regulatory Commission has determined not to require an environmental
assessment or environmental impact statement for its licensees'
possession and use, DOE's packaging, transportation, and storage of
such materials also may normally be categorically excluded. DOE's
experience with discrete radioactive sources in responding to Nuclear
Regulatory Commission requests clearly supports this conclusion.
Proposed B3.10--Siting/construction/operation/
decommissioning of particle accelerators, including electron beam
accelerators, primary beam energy generally less than 100 MeV.
The proposed categorical exclusion applies to siting, construction,
operation, and decommissioning of particle accelerators with primary
beam energy generally less than 100 MeV that would be used for research
and medical purposes. DOE's experience indicates that construction and
operation (or modification) and subsequent decommissioning of such
devices normally pose no potential for significant environmental
impacts. The categorical exclusion also applies to internal
modifications of any accelerators regardless of energy that do not
increase primary beam energy or current. Experience has shown that
internal modifications to accelerators of any size that do not increase
primary beam energy or current pose no potential for significant
impacts.
Proposed B3.12--Siting/construction/operation/
decommissioning of microbiological and biomedical facilities.
DOE has performed numerous analyses of the environmental impacts of
the siting, construction, operation, and any necessary decommissioning
of microbiological and biomedical diagnostic, treatment and research
facilities within or contiguous to an already developed area and has
found that such activities normally pose no potential for significant
environmental impacts. These laboratories generally do not handle
extremely dangerous materials. More generally, laboratories that are
rated Biosafety Level-1 or Biosafety Level-2 (reference: Biosafety in
Microbiological and Biomedical Laboratories, 3rd Edition, May 1993,
U.S. Department of Health and Human Services Public Health Service,
Centers of Disease Control and Prevention, and the National Institutes
of Health; (HHS Publication No. (CDC) 93-8395)) would similarly not
pose potential for significant environmental impacts.
Proposed B3.13--Magnetic fusion experiments, no tritium
fuel use.
The proposed categorical exclusion applies to magnetic fusion
experiments performed at existing facilities that do not use tritium as
fuel, including necessary modifications to the facilities. Analysis of
environmental impacts of several such experimental regimens indicates
that they normally pose no potential for significant environmental
impacts.
Proposed B5.12--Workover of existing oil/gas/geothermal
well.
The proposed categorical exclusion applies to workover (operations
to restore production, such as deepening, plugging back, pulling and
resetting
[[Page 6418]]
lines, and squeeze cementing) of all types of oil, gas, and geothermal
wells where the work would be conducted on the existing wellpad and
would not disturb adjacent habitat. DOE's experience is that such
actions do not pose the potential for significant environmental
impacts.
Proposed B6.4--Siting/construction/operation/
decommissioning of small waste storage facilities (not high-level
radioactive waste, spent nuclear fuel).
This proposed categorical exclusion applies to siting, construction
(or modification), operation and decommissioning of small onsite
storage facilities for waste, other than high-level radioactive waste,
that is generated onsite or results from activities connected to site
operation. The categorical exclusion would not apply to storage of
spent nuclear fuel. This categorical exclusion would apply to small
facilities, generally up to 50,000 square feet in area, within or
contiguous to an already developed area. DOE's evaluations of many such
facilities show that they normally pose no potential for significant
environmental impacts.
Proposed B6.9--Small-scale temporary measures to reduce
migration of contaminated groundwater.
This proposed categorical exclusion reflects DOE's experience with
many small-scale temporary construction actions to reduce the migration
of contaminated groundwater, by such means as pumping, treating,
storing, and reinjecting water and installing underground barriers. DOE
has found that these actions normally have very local and
environmentally beneficial effects and pose no potential for
significant environmental impacts. The Department is also proposing to
categorically exclude the siting, construction, and operation of small
water treatment facilities (proposed B1.26).
(2) Modification (Expansion or Removal) of Categorical Exclusions
Proposed modifications to integral elements B(1), B(2) and
B(4)(iii) and sections B1, B3, B4, B5, and B6 include 2 modifications
to integral elements, expansion of 16 categorical exclusions, and
removal of 6 categorical exclusions.
Proposed Modification B(1).
DOE proposes to add Executive Orders to integral element B(1) for
completeness.
Proposed Modification B(2).
The integral element B(2), which sets the condition that a
categorically excluded action may not require siting, construction, or
major expansion of waste storage, disposal, recovery, or treatment
facilities, would be modified to provide an exception for such actions
that are themselves categorically excluded. Such actions proposed in
this rulemaking include certain water treatment and waste storage
facilities. (See discussions above for proposed B1.26, B1.29, B6.4, and
B6.9).
Proposed Modification B(4)(iii).
Floodplains and wetlands are listed as an example of
environmentally sensitive resources in integral element B(4)(iii). DOE
proposes to revise this example to apply to wetlands determined by
using the methodology that the U.S. Army Corps of Engineers applies in
implementing section 404 of the Clean Water Act, except that it will
not apply to wetlands affected by proposed actions covered by a general
permit under 33 CFR Part 330. However, one such general permit, #23,
covers ``Approved Categorical Exclusions''. It is not appropriate to
use general permit #23 to avoid applying the integral element for DOE
categorical exclusions.
Proposed Modification B1.8--Modifications to screened
water intake/outflow structures.
The proposed modification would expand the original categorical
exclusion to include outflow structures. In DOE's experience, modifying
outflow structures, such that water effluent quality and volumes are
consistent with existing permit limits, normally has no potential for
significant impact.
Proposed Modification B1.13--Construction/acquisition/
relocation of onsite pathways, spur or access roads/ railroads.
The proposed modification would expand the original categorical
exclusion that applies to acquisition or minor relocation of access
roads to include construction of onsite pathways and onsite spur or
access roads and railroads. Such an action would not affect general
traffic or rail patterns and, in view of the conditions that are
integral elements of the categorical exclusion, such an action normally
would not pose the potential for significant environmental impacts.
Proposed Modification B1.15--Siting/construction/operation
of support buildings/support structures.
The proposed modification would no longer restrict this categorical
exclusion to ``small-scale'' support structures. DOE has found that
significant environmental impacts would not normally occur when DOE
support structures of any size are constructed ``within or contiguous
to an already developed area.''
Proposed Modification B1.18--Siting/construction/operation
of additional/replacement water supply wells.
The proposed modification would expand the original categorical
exclusion to include modifications of an existing water supply well to
restore production. The impact of modifying an existing water supply
well to restore production is equivalent to or less than that of
developing additional or replacement water supply wells. DOE's
experience is that such actions, meeting the conditions set forth in
the categorical exclusion, normally have no potential for significant
impact.
Proposed Modification B1.21--Noise abatement.
The proposed modification would remove the restriction that the
existing categorical exclusion applies to only ``minor'' noise
abatement measures. Based on DOE's experience, noise abatement measures
normally would not have a significant environmental impact.
Proposed Modification B3.6--Siting/construction/operation/
decommissioning of facilities for bench-scale research, conventional
laboratory operations, small-scale research and development and pilot
projects.
The proposed modification would combine the current paragraphs B3.6
(Indoor bench-scale research projects/conventional laboratory
operation) and B3.10 (Small-scale research and development/small-scale
pilot projects, at existing facility, preceding demonstration) and
expand the scope to include siting, construction, operation, and
decommissioning of the facilities in which the research activities
would occur. The construction of facilities for the types of research
activities addressed normally would not cause any significant
environmental effects as long as the integral elements were met and
construction occurred within or contiguous to an already developed
area.
Proposed Modification B4.1--Contracts/marketing plans/
policies for excess electric power.
The proposed modification, which applies to power marketing
administrations, would emphasize limits based on the characteristics of
a project rather than the duration of a contract or other agreement.
The existing categorical exclusion indirectly limits the potential
impacts in part by restricting its application to contracts and other
agreements that do not exceed 5 years duration. DOE's project
evaluation experience has shown that the potential for environmental
impacts is more directly related to market responses, such as changes
in generation resources, transmission
[[Page 6419]]
systems, and operating limits than to the duration of contracts,
policies, marketing plans, or allocations of power. This proposed
modification is related to proposed modifications for C7 and D7,
discussed below.
Proposed Modification B4.2--Export of electric energy.
The proposed expansion would allow DOE to issue permits for the
export of electric energy over existing transmission systems or by
changing a system in ways that are themselves categorically excluded.
Such changes may typically be needed to connect two systems and would
involve constructing short segments (generally less than a mile long)
of powerline and a substation.
Proposed Modification B4.3--Electric power marketing rate
changes.
The proposed modification would change the method for determining
categorically excluded rate changes. The limits in the modified
categorical exclusion focus directly on the power system activities,
rather than indirectly on economics. The existing categorical exclusion
applies to rate changes that do not exceed inflation. The proposed
modification would instead categorically exclude rate changes in which
the operations of generation projects would remain within normal
operating limits.
Proposed Modification B4.10--Deactivation, dismantling and
removal of electric powerlines and substations.
The proposed modification would categorically exclude dismantling
of substations, switching stations, and other transmission facilities,
the construction of which is already categorically excluded. The
modification also would categorically exclude the dismantling of all
electric powerlines (i.e., both tap lines and transmission lines),
because the impacts of removing various types of powerlines are
essentially the same. The proposed modification would clarify
categorically excludable actions by including deactivation (i.e.,
shutting off power flowing through existing electric powerlines).
Proposed Modification B4.11--Construction or modification
of electric power substations.
The proposed changes would expand categorically excluded
modification activities to substations of any voltage, provided that
the modification does not increase the existing voltage. DOE has found
that such modifications normally do not have potential for significant
environmental impacts. The proposed changes also would categorically
exclude new electric powerline construction of generally less than 10
miles or relocation of generally less than 20 miles of existing
electric powerlines to conform with the proposed modification to B4.12
and B4.13, as discussed below.
Proposed Modification B4.12--Construction of electric
powerlines (generally less than 10 miles in length), not integrating
major new sources.
The existing categorical exclusion applies to construction and
operation only of tap lines. DOE has found that the physical impacts of
constructing and operating short segments (generally less than 10 miles
in length) of all powerlines are similar and normally are
environmentally insignificant when the integral elements are met.
Proposed Modification B4.13--Reconstruction and minor
relocation of existing electric powerlines (generally less than 20
miles in length).
The proposed modification would increase the length of powerlines
that can be categorically excluded from 10 miles, as indicated in the
existing categorical exclusion, to 20 miles. The categorical exclusion
would also include reconstruction within existing corridors. Based on
DOE's experience, there is no potential for significant impact when the
integral elements are met. Most relocations are proposed to mitigate
existing impacts and improve existing environmental conditions. This
amendment would require a conforming revision of C4 (discussed below).
Proposed Modification B5.3--Modification (not expansion)/
abandonment of oil storage access/brine injection/gas/geothermal wells,
not part of site closure.
The proposed modification would add gas wells to those wells for
which modifications may be categorically excluded. Gas resources
normally occur in conjunction with oil resources, and the existing
categorical exclusion effectively already applies to gas wells. In
general, the environmental impacts of modifying gas wells should be no
more than the impacts of modifying other types of wells.
Proposed Modification B5.5--Construction/operation of
short crude oil/gas/steam/geothermal pipeline segments.
The proposed modification adds natural gas and steam pipelines to
those pipelines that may be constructed and operated between facilities
within a single industrial complex within existing rights of way. These
kinds of actions are minor when they are consistent with the conditions
(integral elements) of the categorical exclusion. The proposed
modification also removes the characterization of the connected
facilities as ``crude oil'' facilities or ``geothermal'' facilities
because potential impacts of constructing and operating connecting
pipeline segments are independent of the end point facilities. In
addition, the term ``offsite'' would be deleted to clarify that the
action includes construction and operation of onsite pipelines as
connectors to the offsite segments, as DOE originally intended.
Proposed Modifications (Removals).
B5.12--Permanent exemption for new peakload powerplant.
B5.13--Permanent exemption for emergency operations.
B5.14--Permanent exemption for meeting scheduled equipment
outages.
B5.15--Permanent exemption due to lack of alternative fuel
supply.
B5.16--Permanent exemption for new cogeneration powerplant.
The Powerplant and Industrial Fuel Use Act of 1978 was enacted to
preserve oil and gas for certain uses for which alternative fuels could
not easily be substituted, to increase use of domestic oil reserves,
and to reduce the nation's dependence on imported oil. In order to
achieve these goals, the act prohibited the use of oil and gas as
primary fuels in new electric power plants and major fuel burning
installations, required that new powerplants be constructed so as to be
capable of burning coal, and required the conversion of existing
powerplants to coal or another alternative to oil and gas fuel by 1990.
The statute was amended in 1987 because its impact on fuel choices by
both existing and new facilities was less significant than originally
expected and because significant reductions in utility and industrial
consumption of oil and gas had been achieved. The purpose of the 1987
amendments was, among other things, to repeal the prohibition on the
use of oil and natural gas as primary fuels for electric powerplants
and major fuel burning installations.
Categorical exclusions B5.12, B5.13, and B5.16 are proposed for
removal because the Powerplant and Industrial Fuel Use Act of 1978 now
only applies to base load power plants. Therefore, the Act is not
applicable to powerplants for peak-load and emergency purposes, or to
cogeneration powerplants.
Categorical exclusions B5.14 and B5.15 are proposed for removal
because they relate only to major fuel-burning facilities, which are no
longer covered by the Powerplant and Industrial Fuel Use Act of 1978.
Proposed Modification B6.1--Small-scale, short-term
cleanup actions under RCRA, Atomic Energy Act, or other authorities.
The proposed revision to B6.1 would delete the current reference to
``removal
[[Page 6420]]
actions under CERCLA'' and would no longer define the scope of
excludable actions in terms of the regulatory cost and time limits for
CERCLA removal actions (currently $2 million and 12 months from the
time action begins onsite, unless regulatory exemptions are satisfied).
Under the Secretarial Policy Statement on NEPA, DOE is generally
relying on the CERCLA process (rather than the NEPA process) for review
of actions to be taken under CERCLA. The focus of the current paragraph
B6.1 on CERCLA removal activities is somewhat confusing in the context
of the Secretarial Policy Statement.
Notwithstanding the general approach of relying generally on the
CERCLA process for environmental review of CERCLA actions, there may be
specific instances in which DOE will choose, after consultation with
stakeholders and as a matter of policy, to integrate the NEPA and
CERCLA processes. The proposed revised paragraph B6.1 is broad enough
to categorically exclude small-scale CERCLA actions as well as similar
actions performed under RCRA, the Atomic Energy Act, or other
authorities.
Although the regulatory cost and time limits for CERCLA removal
actions apply only to fund-financed removals and therefore do not apply
to DOE and other Federal agencies that undertake a removal action using
the authority delegated to Heads of Federal Agencies by Executive Order
12580, DOE has used the limits as a benchmark for the time and cost of
the cleanup actions it normally may categorically exclude. DOE has
found, however, that cleanup actions that pose no potential for
significant environmental impact often cost more and take more time to
complete. Thus, DOE proposes to expand the limits of the categorical
exclusion to actions generally costing up to $5 million over as many as
5 years.
The proposed revision to example B6.1(b) would clarify that the
designation of hazardous waste may be based on Environmental Protection
Agency regulations (as already indicated in the example) or applicable
state requirements. The proposed revision to example B6.1(j) would
clarify that segregation of wastes may be categorically excluded when
DOE believes, but may not be certain, that the wastes, if not
segregated, might react or form a mixture that could result in adverse
environmental impacts.
Proposed Modification (Removal) B6.4--Siting/construction/
operation/decommissioning of facility for storing packaged hazardous
waste for 90 days or less.
The current categorical exclusion B6.4 is proposed for removal
because a more general categorical exclusion for waste storage is
proposed (discussed above) that would encompass the activities to which
the current B6.4 now applies. DOE believes the scope of the proposed
more general categorical exclusion is too broad to be considered a
modification of the current B6.4. The proposed waste storage
categorical exclusion, however, would also be designated B6.4.
(3) Clarifications of Existing Categorical Exclusions
DOE is proposing certain clarifications to 9 categorical exclusions
in sections B1, B3, B4, B5 and B6. To clarify the scope of one
categorical exclusion (i.e., B1.22), DOE proposes to divide it into two
separate categorical exclusions.
Proposed Clarification B1.3--Routine maintenance/custodial
services for buildings, structures, infrastructures, equipment.
The proposed revisions would clarify the existing B1.3 by providing
additional description of the types of areas and improvements (e.g.,
rights-of-way, pathways, and railroads) and activities (e.g., localized
vegetation and pest control) to which the categorical exclusion
applies. A sentence would be added to clarify ``in-kind replacement,''
acknowledging that some equipment in older facilities cannot literally
be replaced in kind because the equipment is no longer made. A revision
to the example B1.3(n) would clarify that this categorical exclusion
applies to certain other facility components, such as monitoring wells,
lysimeters, weather stations, and flumes. A revision to the example
B1.3(o) would clarify that DOE considers all routine surface
decontamination, not just ``spot'' decontamination, as routine
maintenance.
Proposed Clarification
B1.22--Relocation of buildings.
B1.23--Demolition/disposal of buildings.
DOE proposes to divide the existing B1.22 (Relocation/demolition/
disposal of buildings) into two categorical exclusions to clarify that
the two actions included in the existing class of action (building
relocations and building demolition and subsequent disposal) are not
connected actions.
Proposed Clarification B3.1--Site characterization/
environmental monitoring.
The proposed revision would clarify that this categorical exclusion
applies to site characterization and monitoring activities that occur
both onsite and off-site, and includes associated small-scale
laboratory buildings and modification of characterization and
monitoring devices.
Proposed Clarification B3.3--Research related to
conservation of fish and wildlife.
The proposed revision would clarify that this categorical exclusion
includes both field and laboratory research.
Proposed Clarification B4.6--Additions/modifications to
electric power transmission facilities within previously developed
area.
The proposed revision would clarify the existing B4.6 by providing
additional examples of transmission facility projects (e.g., switchyard
grounding upgrades, secondary containment projects, paving projects,
and seismic upgrades) to which this categorical exclusion applies.
Proposed Clarifications
B5.9--Temporary exemption for any electric powerplant.
B5.10--Certain permanent exemptions for any existing electric
powerplant.
B5.11--Permanent exemption for mixed natural gas and petroleum.
The proposed clarifications of B5.9, B5.10, and B5.11 would remove
references to ``major fuel-burning installation'' in order to make
these categorical exclusions consistent with the Powerplant and
Industrial Fuel Act of 1978, which no longer applies to ``major fuel-
burning installations.'' (See discussion above under Proposed
Modifications, B5.12 through B5.16.)
Proposed Clarification B6.5--Siting/construction/
operation/decommissioning of facility for characterizing/sorting
packaged waste, overpacking waste (not high-level radioactive waste,
spent nuclear fuel).
For internal consistency, a reference to B6.4 and B6.6 would be
added to this categorical exclusion.
Appendix C
The Department is proposing to amend eight classes of action in
appendix C, classes of actions that normally require environmental
assessments but not necessarily environmental impact statements,
primarily to ensure consistency with changes made to appendix B.
Proposed Modification (Removal) C1--Major projects.
This class of actions is proposed for removal because DOE no longer
uses the designation of ``Major Project'' in its project management
system and has not replaced that designation with a comparable term.
Proposed Modification C4--Upgrading and constructing
electric powerlines.
[[Page 6421]]
This revision would be a conforming change necessitated by the
proposed change to B4.13, discussed above.
Proposed Modification C7--Allocation of electric power, no
major new generation resource/major changes in operation of generation
resources/major new loads.
The proposed modification reflects DOE's project evaluation
experience, which has shown that the potential for environmental
impacts is more directly related to market responses, such as changes
in generation resources, transmission systems, and operating limits,
than to the duration of contracts, policies, marketing plans, or
allocations of power. This revision also would clarify that this class
of action applies not only to DOE power marketing operations but also
to other DOE activities as well, and that the impacts of taking the
action are independent of the administrative method by which the
arrangements are made (e.g., contract, policy, plan, or funding) and of
site ownership (e.g., DOE or other). This class of action is related to
proposed modification of B4.1 (discussed above) and D7 (discussed
below).
Proposed Modification C9--Restoration, creation, or
enhancement of large wetlands.
This proposed revision would conform to proposed B1.32 as discussed
above, under which small-scale wetlands projects that do not affect
other environmental resources would be categorically excluded.
Proposed Modification (Removal) C10--Siting/construction/
operation/decommissioning of synchrotron radiation accelerator
facility.
Proposed Modification C11--Siting/construction/operation/
decommissioning of low- or medium-energy particle acceleration facility
with primary beam energy generally greater than 100 MeV.
This revision would be a conforming change to make C11 consistent
with the proposed categorical exclusion B3.10, as discussed above, and
would consolidate C10 and C11 for clarity.
Proposed Modification C14--Siting/construction/operation
of water treatment facilities generally greater than 250,000 gallons
per day capacity.
This proposed revision would be a conforming change to make C14
consistent with the proposed categorical exclusion B1.26. Construction
and operation of small facilities, those with capacity generally less
than 250,000 gallons per day, normally would be categorically excluded;
larger facilities normally would need at least an environmental
assessment level of review.
Proposed Modification C16--Siting/construction/operation/
decommissioning of large waste storage facilities (not high-level
radioactive waste, spent nuclear fuel).
This proposed revision would be a conforming change to make C16
consistent with the proposed categorical exclusion B6.4 and to clarify
the meaning of the term onsite.
Appendix D
The Department is proposing to amend three classes of action in
appendix D, classes of actions that normally require an environmental
impact statement, as described below.
Proposed Modification D1--Strategic systems.
This class of actions is revised to reflect changes in DOE's
project management system. DOE has replaced the designation ``Major
Systems Acquisition'' with ``Strategic System'' to describe a project
that is a single, stand-alone effort within a program mission area and
is regarded by the Department as a primary means to advance the
Department's strategic goals. Strategic Systems are designated by the
Secretary based on cost, risk factors, international implications,
stakeholder interest, or national security.
Proposed Modification D7--Allocation of electric power,
major new generation resources/major changes in operation of power
generation resources/major loads.
The proposed modification reflects DOE's project evaluation
experience, which has shown that the potential for environmental
impacts is more directly related to market responses, such as changes
in generation resources, transmission systems, and operating limits
than to the duration of contracts, policies, marketing plans, or
allocations of power. The proposed revision also would clarify that
this class of action applies not only to DOE power marketing operations
but to other DOE activities as well, and that the impacts of taking
that action are independent of the administrative method by which the
arrangements are made (e.g., contract, policy, plan, or funding) and of
site ownership (e.g., DOE or other). This class of action is related to
proposed modifications of B4.1 and C7, discussed above.
Proposed Modification D10--Siting/construction/operation/
decommissioning of major treatment, storage, and disposal facilities
for high-level waste and spent nuclear fuel.
The current paragraph D10 includes certain activities regarding
spent nuclear fuel storage facilities within the scope of actions that
normally require an environmental impact statement. Under the proposed
modification, DOE would not presume that an EIS is the appropriate
level of NEPA review for siting, constructing, operating and
decommissioning replacement storage facilities or upgrading storage
facilities for spent nuclear fuel. DOE proposals for siting,
constructing, operating and decommissioning (or upgrading) spent
nuclear fuel storage facilities have varied too widely to support a
general conclusion that such proposals normally require an
environmental impact statement or normally require an environmental
assessment. For example, DOE proposals may range from major new
facilities that would store most of the nation's commercial spent
nuclear fuel (for which an environmental impact statement clearly would
be appropriate), to minor new facilities or upgrades for storing very
much smaller quantities of spent fuel that are already in storage at
several DOE sites. In addition, this modification is appropriate in
light of substantial DOE analyses and experience that show that, even
when considered in conjunction with other nuclear-related activities at
DOE sites, the environmental impacts of siting, constructing, operating
and decommissioning spent nuclear fuel storage facilities at DOE sites
generally would be small. The U.S. Nuclear Regulatory Commission and
cognizant foreign authorities have reached similar conclusions with
respect to spent nuclear fuel storage within their respective
jurisdictions. Therefore, DOE believes it may often be appropriate to
prepare an environmental assessment rather than an environmental impact
statement for replacement spent nuclear fuel storage facilities.
IV. Procedural Review Requirements
A. Environmental Review Under the National Environmental Policy Act
These proposed amendments establish, modify, and clarify procedures
for considering the environmental effects of DOE actions within the
Department's decision making process, thereby enhancing compliance with
the letter and spirit of NEPA. Subpart D, Appendix A6, of the DOE NEPA
regulations categorically excludes ``rulemakings that are strictly
procedural,'' and applies to these proposed amendments. Therefore, DOE
has determined that promulgation of these amendments is not a major
Federal action significantly affecting the quality of the human
environment within the meaning of NEPA, and does not require an
environmental impact statement or an environmental
[[Page 6422]]
assessment. DOE will continue to examine individual proposed actions to
determine the appropriate level of review.
B. Review Under the Regulatory Flexibility Act
The Regulatory Flexibility Act, Public Law 96-345 (5 U.S.C. 601-
612), requires that an agency prepare an initial regulatory flexibility
analysis to be published at the time the proposed rule is published.
The requirement (which appears in section 603 of the Act) does not
apply if the agency ``certifies that the rule will not, if promulgated,
have a significant economic impact on a substantial number of small
entities.'' This proposed rule would modify existing policies and
procedural requirements for DOE compliance with NEPA. It makes no
substantive changes to requirements imposed on applicants for DOE
licenses, permits, financial assistance, and similar actions as related
to NEPA compliance. Therefore, DOE certifies that this rule, if
promulgated, would not have a ``significant economic impact on a
substantial number of small entities.''
C. Review Under the Paperwork Reduction Act
No new information collection or recordkeeping requirements are
imposed by these amendments. Accordingly, no Office of Management and
Budget clearance is required under the Paperwork Reduction Act of 1980
(44 U.S.C. 3501 et seq.).
D. Review Under Executive Order 12612
Executive Order 12612, ``Federalism,'' requires that regulations be
reviewed for Federalism effects on the institutional interest of states
and local governments, and, if the effects are sufficiently
substantial, preparation of a Federalism assessment is required to
assist senior policymakers. The final amendments will affect Federal
NEPA compliance procedures, which are not subject to state regulation.
The proposed amendments to DOE's NEPA regulations will not have any
substantial direct effects on states and local governments within the
meaning of the Executive Order.
E. Review Under Executive Order 12778
Section 2 of Executive Order 12778, ``Civil Justice Reform''
(October 23, 1991), instructs Federal agencies to adhere to certain
requirements when promulgating new regulations and reviewing existing
regulations. These requirements, set forth in sections 2(a) and
2(b)(2), include eliminating drafting errors and needless ambiguity,
drafting the regulations to minimize litigation, providing clear and
certain legal standards for affected conduct, and promoting
simplification and burden reduction. Agencies are also instructed to
make every reasonable effort to ensure that the regulations specify
clearly any preemptive effect, effect on existing Federal law or
regulation, and retroactive effect; describe any administrative
proceedings to be available before judicial review and any revisions
for the exhaustion of such administrative proceedings; and define key
terms. DOE certifies that these proposed amendments to DOE's NEPA
regulations meet the requirements of sections 2(a) and 2(b)(2) of
Executive Order 12778.
F. Review Under Executive Order 12866
The proposed amendments were reviewed in accordance with Executive
Order 12866, ``Regulatory Planning and Review,'' which requires a
Federal agency to prepare a regulatory assessment, including the
potential costs and benefits, of any ``significant regulatory action.''
The order defines ``significant regulatory action'' as any regulatory
action that may have an annual effect on the economy of $100 million or
more and may adversely affect the economy, productivity, competition,
jobs, the environment, public health or safety, or state, local, or
tribal governments in a material way, create a serious inconsistency or
otherwise interfere with an action taken or planned by another agency,
materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs, or raise novel legal or policy issues arising
out of legal mandates (section 3(f)).
This proposal would amend already existing policies and procedures
for compliance with NEPA. The amendments contain no substantive changes
in the requirements imposed on applicants for a DOE license, financial
assistance, permit, or similar actions, which are the areas in which
one might anticipate an economic effect. Therefore, DOE has determined
that the incremental effect of these amendments to the DOE NEPA
regulations will not have the magnitude of effects on the economy, or
any other adverse effects, to bring this proposal within the definition
of a ``significant regulatory action.'' Pursuant to the Executive
Order, the proposed amendments were submitted to the Office of
Management and Budget for regulatory review.
G. Review under the Unfunded Mandates Reform Act
Under section 205 of the Unfunded Mandates Reform Act of 1995,
Federal agencies are required to prepare a budgetary impact statement
to accompany any proposed or final rule that includes a Federal mandate
that may result in the expenditure by state, local and tribal
governments, in the aggregate, or by the private sector, of $100
million or more in any one year. Because the DOE NEPA regulations
affect only DOE and do not create obligations on the part of any other
person or government agency, neither state, local or tribal governments
nor the private sector will be affected by amendments to these
regulations. Thus, further review by DOE under the Unfunded Mandates
Reform Act is not required.
V. Public Comment Procedures
Interested persons are invited to participate in this rulemaking by
submitting information, views, suggestions, or arguments with respect
to the proposed regulatory amendments set forth in this Notice.
Comments should be submitted to the address indicated in the ADDRESSES
section of this Notice and identified (on the outside of the envelope
and on the comment documents) with the designation ``NEPA Rulemaking.''
DOE will consider all comments received by the date indicated in the
DATES section before taking final action on the proposed amendments.
Late comments will be considered to the extent practicable.
List of Subjects in 10 CFR Part 1021
Environmental impact statement.
Issued in Washington, D.C., February 9, 1996.
Peter Brush,
Acting Assistant Secretary, Environment, Safety and Health.
For reasons set out in the preamble, 10 CFR Part 1021 is proposed
to be amended as follows:
PART 1021--NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING
PROCEDURES
1. The authority citation for Part 1021 continues to read as
follows:
Authority: 42 U.S.C. 7254; 42 U.S.C. 4321 et seq.
Sec. 1021.104 [Amended]
2. In section 1021.104(b), the definition for EIS Implementation
Plan is removed.
3. Section 1021.105 is revised to read as follows:
[[Page 6423]]
Sec. 1021.105 Oversight of Agency NEPA Activities.
The Assistant Secretary for Environment, Safety and Health, or his/
her designee, is responsible for overall review of DOE NEPA compliance.
Further information on DOE's NEPA process and the status of individual
NEPA reviews may be obtained upon request from the Office of NEPA
Policy and Assistance, US. Department of Energy, 1000 Independence
Avenue, SW., Washington, DC 20585-0119.
Sec. 1021.312 [Removed and reserved]
4. Section 1021.312 is removed and reserved.
5. Section 1021.315(c) is revised to read as follows:
Sec. 1021.315 Records of Decision.
* * * * *
(c) In addition to any other public announcements, DOE RODs, or
notices of their availability that provide a brief summary of the RODs,
shall be published in the Federal Register and the RODs shall be made
available to the public as specified in 40 CFR 1506.6, except as
provided in 40 CFR 1507.3(c) and section 1021.340 of this part. DOE may
implement the decision before the ROD, or notice of its availability,
is published in the Federal Register if the decision has been made
public by other means (e.g., press releases, announcements in local
media).
* * * * *
Sec. 1021.322 [Amended]
6. Section 1021.322 is amended to remove (b)(1), and (b)(2) through
(b)(5) are redesignated (b)(1) through (b)(4), respectively.
7. Appendix A, paragraph A7, is revised to read as follows:
Appendix A to Subpart D--Categorical Exclusions Applicable to General
Agency Actions
* * * * *
A7 Transfer, lease, disposition, or acquisition of interests in
personal property (e.g., equipment and materials) or real property
(e.g., permanent structures and land), if property use is to remain
unchanged; i.e., the type and magnitude of impacts would remain
essentially the same.
* * * * *
8. Appendix B, is amended to revise the Table of Contents entries
for B1.8, B1.13, B1.22, B3.6, B3.10, B4.1, B4.2, B4.3, B4.6, B4.10,
B4.11, B4.12, B4.13, B5.3, B5.5, B5.9, B5.10, B5.12, B6.1, B6.4, and
B6.5; add B1.23 through B1.33, B2.6, B3.12, B3.13, and B6.9; and remove
B5.13 through B5.16, to read as follows:
Appendix B to Subpart D--Categorical Exclusions Applicable to Specific
Agency Actions
* * * * *
B1.8 Modifications to screened water intake/outflow structures.
* * * * *
B1.13 Construction/acquisition/relocation of onsite pathways,
spur or access roads/railroads.
* * * * *
B1.22 Relocation of buildings.
B1.23 Demolition/disposal of buildings.
B1.24 Transfer of property/residential, commercial, industrial
use.
B1.25 Transfer of property/habitat preservation, wildlife
management.
B1.26 Siting/construction/operation/decommissioning of small
water treatment facilities, generally less than 250,000 gallons per
day capacity.
B1.27 Facility deactivation
B1.28 Minor activities to place a facility in an
environmentally safe condition, no proposed uses.
B1.29 Siting/construction/operation/decommissioning of onsite
disposal facility for construction and demolition waste.
B1.30 Transfer actions
B1.31 Relocation/operation of machinery and equipment.
B1.32 Restoration, creation, or enhancement of small wetlands.
B1.33 Traffic flow adjustments, existing roads.
* * * * *
B2.6 Packaging/transportation/storage of radioactive sources
upon request by the Nuclear Regulatory Commission or other cognizant
agency.
* * * * *
B3.6 Siting/construction/operation/decommissioning of
facilities for bench-scale research, conventional laboratory
operations, small-scale research and development and pilot projects.
* * * * *
B3.10 Siting/construction/operation/decommissioning of particle
accelerators, including electron beam accelerators, primary beam
energy generally less than 100 MeV.
* * * * *
B3.12 Siting/construction/operation/decommissioning of
microbiological and biomedical facilities.
B3.13 Magnetic fusion experiments, no tritium fuel use.
* * * * *
B4.1 Contracts/marketing plans/policies for excess electric
power.
B4.2 Export of electric energy.
B4.3 Electric power marketing rate changes.
* * * * *
B4.6 Additions/modifications to electric power transmission
facilities within previously developed area.
* * * * *
B4.10 Deactivation, dismantling and removal of electric
powerlines and substations.
B4.11 Construction or modification of electric power
substations.
B4.12 Construction of electric powerlines (generally less than
10 miles in length), not integrating major new sources.
B4.13 Reconstruction and minor relocation of existing electric
powerlines (generally less than 20 miles in length).
* * * * *
B5.3 Modification (not expansion)/abandonment of oil storage
access/brine injection/gas/geothermal wells, not part of site
closure.
* * * * *
B5.5 Construction/operation of short crude oil/gas/steam/
geothermal pipeline segments.
* * * * *
B5.9 Temporary exemption for any electric powerplant.
B5.10 Certain permanent exemptions for any existing electric
powerplant.
* * * * *
B5.12 Workover of existing oil/gas/geothermal well.
* * * * *
B6.1 Small-scale, short-term cleanup actions under RCRA, Atomic
Energy Act, or other authorities.
* * * * *
B6.4 Siting/construction/operation/decommissioning of small
waste storage facilities (not high-level radioactive waste, spent
nuclear fuel).
B6.5 Siting/construction/operation/decommissioning of facility
for characterizing/sorting packaged waste, overpacking waste (not
high-level radioactive waste, spent nuclear fuel).
* * * * *
B6.9 Small-scale temporary measures to reduce migration of
contaminated groundwater.
* * * * *
9. Appendix B, section B is amended by revising paragraphs B(1),
B(2), B(4)(iii) to read as follows:
B. Conditions that are Integral Elements of the Classes of
Actions in Appendix B
* * * * *
(1) Threaten a violation of applicable statutory, regulatory, or
permit requirements for environment, safety, and health, including
requirements of DOE and/or Executive Orders.
(2) Require siting and construction or major expansion of waste
storage, disposal, recovery, or treatment facilities (including
incinerators) unless these actions are themselves categorically
excluded.
* * * * *
(4) * * *
(iii) Wetlands, as determined by using the methodology that the
U.S. Army Corps of Engineers applies in implementing section 404 of
the Clean Water Act, except for wetlands affected by proposed
actions covered by a general permit under 33 CFR Part 330 (other
than Permit #23, ``Approved Categorical Exclusions''), and
floodplains;
* * * * *
[[Page 6424]]
10. Appendix B, section B1, is amended by revising the introductory
text to paragraph B1.3, paragraphs B1.3(n) & (o), B1.8, B1.13, B1.15,
B1.18, B1.21, and B1.22, and adding paragraphs B1.23 through B1.33, to
read as follows:
B1. Categorical Exclusions Applicable to Facility Operation.
* * * * *
B1.3 Routine maintenance activities and custodial services for
buildings, structures, rights-of-way, infrastructures (e.g.,
pathways, roads, and railroads
FR Doc. 96-3631 National Environmental Policy Act Implementing Procedures
), vehicles and equipment, and
localized vegetation and pest control, during which operations may
be suspended and resumed. Custodial services are activities to
preserve facility appearance, working conditions, and sanitation,
such as cleaning, window washing, lawn mowing, trash collection,
painting, and snow removal. Routine maintenance activities,
corrective (that is, repair), preventive, and predictive, are
required to maintain and preserve buildings, structures,
infrastructures, and equipment in a condition suitable for a
facility to be used for its designated purpose. Routine maintenance
may result in replacement to the extent that replacement is in kind
and is not a substantial upgrade or improvement. In kind replacement
includes installation of new components to replace outmoded
components if the replacement does not result in a significant
change in the expected useful life, design capacity, or function of
the facility. Routine maintenance does not include replacement of a
major component that significantly extends the originally intended
useful life of a facility (for example, it does not include the
replacement of a reactor vessel near the end of its useful life).
Routine maintenance activities include, but are not limited to:
* * * * *
(n) Routine testing and calibration of facility components,
subsystems, or portable equipment (including but not limited to,
control valves, in-core monitoring devices, transformers,
capacitors, monitoring wells, lysimeters, weather stations, and
flumes); and
(o) Routine decontamination of the surfaces of equipment, rooms,
hot cells, or other interior surfaces of buildings (by such
activities as wiping with rags, using strippable latex, and minor
vacuuming), including removal of contaminated intact equipment and
other materials (other than spent nuclear fuel or special nuclear
material in nuclear reactors).
* * * * *
B1.8 Modifications to screened water intake and outflow
structures such that intake velocities and volumes and water
effluent quality and volumes are consistent with existing permit
limits
* * * * *
B1.13 Construction, acquisition, and relocation of onsite
pathways and onsite spur or access roads and railways.
* * * * *
B1.15 Siting, construction (or modification), and operation of
support buildings and support structures (including prefabricated
buildings and trailers) within or contiguous to an already developed
area (where site utilities and roads are available). Covered support
buildings and structures include those for office purposes; parking;
cafeteria services; education and training; visitor reception;
computer and data processing services; employee health services or
recreation activities; routine maintenance activities; storage of
supplies and equipment for administrative services and routine
maintenance activities; security (including security posts); fire
protection; and similar support purposes, but excluding facilities
for waste storage activities, except as provided in other parts of
this appendix.
* * * * *
B1.18 Siting, construction, and operation of additional water
supply wells (or replacement wells) within an existing well field,
or modification of an existing water supply well to restore
production, if there would be no drawdown other than in the
immediate vicinity of the pumping well, no resulting long-term
decline of the water table, and no degradation of the aquifer from
the new or replacement well.
* * * * *
B1.21 Noise abatement measures, such as construction of noise
barriers and installation of noise control materials.
B1.22 Relocation of buildings (including, but not limited to,
trailers and prefabricated buildings) to an already developed area
where site utilities and roads are available.
B1.23 Demolition and subsequent disposal of buildings,
equipment, and support structures (including, but not limited to,
smoke stacks and parking lot surfaces).
B1.24 Transfer, lease, disposition or acquisition of interests
in uncontaminated real property (e.g., facilities, support
structures and accompanying land) for residential, commercial, or
industrial uses (including, but not limited to, office space,
warehouses, equipment storage facilities) that do not involve any
lessening in quality, or increases in volumes, concentrations, or
discharge rates, of wastes, air emissions, or water effluents and
that, under reasonably foreseeable uses, would have generally
similar environmental impacts compared to those before the transfer,
lease, disposition, or acquisition of interests.
B1.25 Transfer, lease, disposition or acquisition of interests
in uncontaminated real property (e.g., land and associated
buildings) for habitat preservation or wildlife management, but not
including any habitat alteration.
B1.26 Siting, construction (including expansion, modification,
and replacement), operation, and decommissioning of small water
treatment facilities, including facilities for wastewater, potable
water, surface water, and sewage, with a total capacity that
generally does not exceed 250,000 gallons per day. (Also see B6.9).
B1.27 Activities that are required to deactivate a facility;
i.e., disconnect utilities such as water, steam, telecommunications,
and electrical power.
B1.28 Minor activities that are required to place a facility in
an environmentally safe condition where there is no proposed use for
the facility. These activities would include, but are not limited
to, reducing surface contamination, and removing materials,
equipment or waste, such as final defueling of a reactor, where
there are adequate existing facilities for the treatment, storage,
or disposal of the materials, equipment or waste. These activities
would not include conditioning, treatment or processing of spent
nuclear fuel, high-level waste, or special nuclear materials.
B1.29 Siting, construction, operation, and decommissioning of a
small (generally less than 10 acres in area) onsite disposal
facility for uncontaminated construction and demolition waste. These
wastes, as defined in the Environmental Protection Agency's
regulations under the Resource Conservation and Recovery Act,
specifically 40 CFR 243.101, include building materials, packaging,
and rubble.
B1.30 Transfer actions, in which the predominant activity is
transportation, and in which the amount and type of materials,
equipment or waste to be moved is incidental to the amount of such
materials, equipment, or waste that is already a part of ongoing
operations at the receiving site. Such transfers are not regularly
scheduled as part of ongoing routine operations.
B1.31 Relocation of machinery and equipment, such as analytical
laboratory apparatus, electronic hardware, maintenance equipment,
and health and safety equipment, including minor construction
necessary for removal and installation, where uses of the relocated
items will be similar to their former uses and consistent with the
general missions of the receiving structure.
B1.32 Restoration, creation, or enhancement of small wetlands in
coordination with the cognizant Federal or State regulators, and
where other environmental resources are not adversely affected.
B1.33 Traffic flow adjustments to existing roads at DOE sites
(including, but not limited to, stop sign or traffic light
installation, and adjusting direction of traffic flow).
11. Appendix B, section B2, is amended by adding B2.6, to read as
follows:
B2. Categorical Exclusions Applicable to Safety and Health.
* * * * *
B2.6 Packaging, transportation, and storage of radioactive
materials from the public domain, in accordance with the Atomic
Energy Act upon a request by the Nuclear Regulatory Commission or
other cognizant agency. Covered materials are those for which
possession and use by Nuclear Regulatory Commission licensees has
been categorically excluded under 10 CFR 51.22(14) or its
successors. Examples of these radioactive materials (which may
contain source, byproduct or special nuclear materials) are density
gauges, therapeutic medical devices, generators, reagent kits,
irradiators, analytical instruments, well monitoring equipment,
uranium shielding material, depleted uranium military munitions, and
packaged radioactive waste not exceeding 50 curies.
[[Page 6425]]
12. Appendix B, section B3, is amended to revise the introductory
text to paragraph B3.1, B3.3, B3.6, and B3.10, and add new paragraphs
B3.12 and B3.13, to read as follows:
B3. Categorical Exclusions Applicable to Site Characterization,
Monitoring, and General Research.
B3.1 Onsite and offsite site characterization and environmental
monitoring, including siting, construction (or modification),
operation, and dismantlement or closing (abandonment) of
characterization and monitoring devices and siting, construction,
and associated operation of a small-scale laboratory building or
renovation of a room in an existing building for sample analysis.
Activities covered include, but are not limited to, site
characterization and environmental monitoring under CERCLA and RCRA.
Specific activities include, but are not limited to:
* * * * *
B3.3 Field and laboratory research, inventory, and information
collection activities that are directly related to the conservation
of fish or wildlife resources and that involve only negligible
habitat destruction or population reduction.
* * * * *
B3.6 Siting, construction (or modification), operation, and
decommissioning of facilities for indoor bench-scale research
projects, conventional laboratory operations (for example,
preparation of chemical standards and sample analysis); small-scale
research and development projects; and small-scale pilot projects to
verify a concept before demonstration actions. Construction (or
modification) will be within or contiguous to an already developed
area (where site utilities and roads are available).
* * * * *
B3.10 Siting, construction, operation, and decommissioning of a
particle accelerator, including electron beam accelerator with
primary beam energy generally less than 100 MeV, and associated
beamlines, storage rings, colliders, and detectors for research and
medical purposes, within or contiguous to an already developed area
(where site utilities and roads are available), or internal
modification of any accelerator facility regardless of energy that
does not increase primary beam energy or current.
* * * * *
B3.12 Siting, construction (including modification), operation,
and decommissioning of microbiological and biomedical diagnostic,
treatment and research facilities (excluding Biosafety Level-3 and
Biosafety Level-4; reference: Biosafety in Microbiological and
Biomedical Laboratories, 3rd Edition, May 1993, U.S. Department of
Health and Human Services Public Health Service, Centers of Disease
Control and Prevention, and the National Institutes of Health (HHS
Publication No. (CDC) 93-8395)) including, but not limited to,
laboratories, treatment areas, offices, and storage areas, within or
contiguous to an already developed area (where utilities and roads
are available). Operation may include the purchase, installation,
and operation of biomedical equipment, such as commercially
available cyclotrons that are used to generate radioisotopes and
radiopharmaceuticals, and commercially available biomedical imaging
and spectroscopy instrumentation.
B3.13 Performing magnetic fusion experiments that do not use
tritium as fuel, with existing facilities (including necessary
modifications).
13. Appendix B, section B4, is amended to revise paragraphs B4.1,
B4.2, B4.3, B4.6, B4.10, B4.11, B4.12 and B4.13, to read as follows:
B4. Categorical Exclusions Applicable to Power Marketing
Administrations and to all of DOE with Regard to Power Resources.
B4.1 Establishment and implementation of contracts, marketing
plans, policies, allocation plans, or acquisition of excess electric
power that does not involve: (1) the integration of a new generation
resource, (2) physical changes in the transmission system beyond the
previously developed facility area, unless the changes are
themselves categorically excluded, or (3) changes in the normal
operating limits of generation resources.
B4.2 Export of electric energy as provided by section 202(e) of
the Federal Power Act over existing transmission systems or using
transmission system changes that are themselves categorically
excluded.
B4.3 Changes in rates for electric power, power transmission,
and other products or services provided by a Power Marketing
Administration that are based on a change in revenue requirements if
the operations of generation projects would remain within normal
operating limits.
* * * * *
B4.6 Additions or modifications to electric power transmission
facilities that would not affect the environment beyond the
previously developed facility area including, but not limited to,
switchyard rock grounding upgrades, secondary containment projects,
paving projects, seismic upgrading, tower modifications, changing
insulators, and replacement of poles, circuit breakers, conductors,
transformers, and crossarms.
* * * * *
B4.10 Deactivation, dismantling, and removal of electric
powerlines, substations, switching stations, and other transmission
facilities, and right-of-way abandonment.
B4.11 Construction of electric power substations (including
switching stations and support facilities) with power delivery at
230 kV or below, or modification (other than voltage increases) of
existing substations and support facilities, that generally would
not involve the construction of more than 10 miles of new or
relocation of more than 20 miles of existing electric powerlines or
the integration of a major new resource.
B4.12 Construction of electric powerlines (less than 10 miles
in length) that are not for the integration of major new sources of
generation into a main transmission system.
B4.13 Reconstruction (upgrading or rebuilding) and/or minor
relocation of existing electric powerlines less than 20 miles in
length to enhance environmental and land use values. Such actions
include relocations to avoid right-of-way encroachments, resolve
conflict with property development, accommodate road/highway
construction, allow for the construction of facilities such as
canals and pipelines, or reduce existing impacts to environmentally
sensitive areas.
14. Appendix B, section B5, is amended to revise paragraphs B5.3,
B5.5, and B5.9 through B5.12 and remove B5.13 through B5.16, to read as
follows:
B5. Categorical Exclusions Applicable to Conservation, Fossil,
and Renewable Energy Activities
* * * * *
B5.3 Modification (but not expansion) or abandonment (including
plugging), which is not part of site closure, of crude oil storage
access wells, brine injection wells, geothermal wells, and gas
wells.
* * * * *
B5.5 Construction and subsequent operation of short crude oil,
steam, geothermal, or natural gas pipeline segments between DOE
facilities and existing transportation, storage, or refining
facilities within a single industrial complex, if the pipeline
segments are within existing rights-of-way.
* * * * *
B5.9 The grant or denial of any temporary exemption under the
Powerplant and Industrial Fuel Use Act of 1978 for any electric
powerplant.
B5.10 The grant or denial of any permanent exemption under the
Powerplant and Industrial Fuel Use Act of 1978 of any existing
electric powerplant other than an exemption under (1) section 312(c)
relating to cogeneration, (2) section 312(l) relating to scheduled
equipment outages, (3) section 312(b) relating to certain state or
local requirements, and (4) section 312(g) relating to certain
intermediate load powerplants.
B5.11 The grant or denial of a permanent exemption from the
prohibitions of Title II of the Powerplant and Industrial Fuel Use
Act of 1978 for any new electric powerplant to permit the use of
certain fuel mixtures containing natural gas or petroleum.
B5.12 Workover (operations to restore production, such as
deepening, plugging back, pulling and resetting lines, and squeeze
cementing) of an existing oil, gas, or geothermal well to restore
production when workover operations will be restricted to the
existing wellpad and not involve any new site preparation or earth
work that would disturb adjacent habitat.
15. Appendix B, section B6, is amended to revise the introductory
text to paragraph B6.1, paragraph B6.1(b) & (j), B6.4, and B6.5 and add
paragraph B6.9, to read as follows:
B6. Categorical Exclusions Applicable to Environmental
Restoration and Waste Management Activities
B6.1 Small-scale, short-term cleanup actions, under RCRA,
Atomic Energy Act, or other authorities, generally less than 5
million dollars in cost and 5 years duration,
[[Page 6426]]
to reduce risk to human health or the environment from the release or
threat of release of a hazardous substance, including treatment
(e.g., incineration), recovery, storage, or disposal of wastes at
existing facilities currently handling the type of waste involved in
the action. These actions include, but are not limited to:
* * * * *
(b) Removal of bulk containers (for example, drums, barrels)
that contain or may contain hazardous substances, pollutants,
contaminants, CERCLA-excluded petroleum or natural gas products, or
hazardous wastes (designated in 40 CFR Part 261 or applicable state
requirements), if such actions would reduce the likelihood of
spillage, leakage, fire, explosion, or exposure to humans, animals,
or the food chain;
* * * * *
(j) Segregation of wastes that may react with one another or
form a mixture that could result in adverse environmental impacts;
* * * * *
B6.4 Siting, construction (including modification), operation,
and decommissioning of a small facility (generally not to exceed an
area of 50,000 square feet) within or contiguous to an already
developed area (where site utilities and roads are developed) for
storage of waste, other than high-level radioactive waste, generated
onsite or resulting from activities connected to site operations.
These actions do not include the storage of spent nuclear fuel.
B6.5 Siting, construction (or modification or expansion),
operation, and decommissioning of an onsite facility for
characterizing and sorting previously packaged waste or for
overpacking waste, other than high-level radioactive waste, if
operations do not involve unpacking waste. These actions do not
include waste storage (covered under B6.4, B6.6 and C16) or the
handling of spent nuclear fuel.
* * * * *
B6.9 Small-scale temporary measures to reduce migration of
contaminated groundwater, including the siting, construction,
operation, and decommissioning of necessary facilities. These
measures include, but are not limited to, pumping, treating,
storing, and reinjecting water and installing underground barriers.
(Also see B1.26.)
16. Appendix C is amended by revising the Table of Contents entries
C1, C4, C7, C9, C10, C11, C14 and C16 to read as follows:
Appendix C to Subpart D of Part 1021-Classes of Actions That Normally
Require EAs But Not Necessarily EISs
C1 [Reserved]
* * * * *
C4 Upgrading and constructing electric powerlines
* * * * *
C7 Allocation of electric power, no major new generation
resource/major changes in operation of generation resources/major
new loads
* * * * *
C9 Restoration, creation, or enhancement of large wetlands.
C10 [Reserved]
C11 Siting/construction/operation/decommissioning of low- or
medium-energy particle acceleration facility with primary beam
energy generally greater than 100 MeV.
* * * * *
C14 Siting/construction/operation of water treatment facilities
generally greater than 250,000 gallons per day capacity
* * * * *
C16 Siting/construction/operation/decommissioning of large
waste storage facilities (not high-level radioactive waste, spent
nuclear fuel)
17. Appendix C to Subpart D of Part 1021 is amended by removing and
reserving paragraphs C1 & C10 and by revising C4, C7, C9, C11, C14 and
C16, to read as follows:
C1 [Removed and Reserved]
* * * * *
C4 Upgrading (reconstructing) an existing electric powerline
generally more than 20 miles in length or constructing a new
electric powerline generally more than 10 miles in length.
* * * * *
C7 Establishment and implementation of contracts, policies,
marketing plans, or allocation plans for the allocation of electric
power that do not involve (1) the addition of new generation
resources greater than 50 average megawatts, (2) major changes in
the operating limits of generation resources greater than 50 average
megawatts, or (3) service to discrete new loads of 10 average
megawatts or more over a 12 month period. This applies to power
marketing operations and to siting, construction, and operation of
power generating facilities at DOE sites.
* * * * *
C9 Restoration, creation, or enhancement of large wetlands, or
small wetlands where these actions may adversely affect other
environmental resources.
C10 [Removed and Reserved]
C11 Siting, construction (or major modification), operation,
and decommissioning of a low- or medium-energy (but greater than 100
MeV primary beam energy) particle acceleration facility, including
electron beam acceleration facilities, and associated beamlines,
storage rings, colliders, and detectors for research and medical
purposes, within or contiguous to an already developed area (where
site utilities and roads are available).
* * * * *
C14 Siting, construction (or expansion), and operation of water
treatment facilities generally exceeding 250,000 gallons per day,
including facilities for wastewater, potable water, and sewage.
* * * * *
C16 Siting, construction (including modification to increase
capacity), operation, and decommissioning of packaging and unpacking
facilities (that may include characterization operations) and large
storage facilities (generally greater than 50,000 square feet in
area) for waste, except high-level radioactive waste, generated
onsite or resulting from activities connected to site operations.
These actions do not include storage, packaging, or unpacking of
spent nuclear fuel. [Also see B6.4, B6.5, and B6.6.]
18. Appendix D is amended to revise the Table of Contents entries
for D1, D7, and D10 to read as follows:
Appendix D to Subpart D of Part 1021-Classes of Actions That Normally
Require EISs
D1 Strategic Systems
* * * * *
D7 Allocation of electric power, major new generation
resources/major changes in operation of generation resources/major
loads
* * * * *
D10 Siting/construction/operation/decommissioning of major
treatment, storage, and disposal facilities for high-level waste and
spent nuclear fuel
* * * * *
19. Appendix D to Subpart D of Part 1021 is amended by revising
paragraphs D1, D7 and D10, to read as follows:
D1 Strategic Systems, as defined in DOE Order 430.1, ``Life-
Cycle Asset Management,'' and designated by the Secretary.
* * * * *
D7 Establishment and implementation of contracts, policies,
marketing plans or allocation plans for the allocation of electric
power that involve (1) the addition of new generation resources
greater than 50 average megawatts, (2) major changes in the
operating limits of generation resources greater than 50 average
megawatts, or (3) service to discrete new loads of 10 average
megawatts or more over a 12 month period. This applies to power
marketing operations and to siting construction, and operation of
power generating facilities at DOE sites.
* * * * *
D10 Siting, construction, operation, and decommissioning of
major treatment, storage, and disposal facilities for high-level
waste and spent nuclear fuel, including geologic repositories, but
not including onsite replacement or upgrades of storage facilities
for spent nuclear fuel at DOE sites.
* * * * *
[FR Doc. 96-3631 Filed 2-16-96; 8:45 am]
BILLING CODE 6560-01-P
Complete official Federal Register PDF
FR Doc. 96-3610 Onions Grown in South Texas; Change in Regulatory Period
[Federal Register Volume 61, Number 34 (Tuesday, February 20, 1996)]
[Proposed Rules]
[Pages 6328-6329]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3610]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 959
[Docket No. FV95-959-3PR]
Onions Grown in South Texas; Change in Regulatory Period
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: This proposed rule would change the end of the regulatory
period for onions grown in South Texas under Marketing Order 959 from
June 15 to June 4 of each year. Terminating the handling regulation on
June 4 would relieve restrictions on handlers who ship late season
onions and help them become more competitive with handlers from non-
marketing order areas without diminishing South Texas marketing order
objectives. A corresponding change in the dates for the import
regulation also would be made in a second document.
DATES: Comments which are received by March 21, 1996 will be considered
prior to issuance of any final rule.
ADDRESSES: Interested persons are invited to submit written comments
concerning this action. Comments must be sent in triplicate to the
Docket Clerk, Fruit and Vegetable Division, AMS, USDA, room 2523-S,
P.O. Box 96456, Washington, DC 20090-6456, FAX 202-720-5698. All
comments should reference the docket number and the date and page
number of this issue of the Federal Register and will be made available
for public inspection in the Office of the Docket Clerk during regular
business hours.
FOR FURTHER INFORMATION CONTACT: Belinda G. Garza, Marketing Order
Administration Branch, F&V, AMS, USDA, 1313 E. Hackberry, McAllen, TX
78501; telephone: 210-682-2833; FAX 210-682-5942; or Robert F.
Matthews, Marketing Specialist, Marketing Order Administration Branch,
F&V, AMS, USDA, room 2523-S, P.O. Box 96456, Washington, DC 20090-6456;
telephone: 202-690-0464; FAX 202-720-5698.
SUPPLEMENTARY INFORMATION: This proposed rule is issued under Marketing
Agreement No. 143 and Marketing Order No. 959 (7 CFR part 959), as
amended, regulating the handling of onions grown in South Texas,
hereinafter referred to as the ``order.'' This order is effective under
the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C
601-674), hereinafter referred to as the ``Act.''
The Department of Agriculture (Department) is proposing this rule
in conformance with Executive Order 12866.
This proposed rule has been reviewed under Executive Order 12778,
Civil Justice Reform. This rule is not intended to have retroactive
effect. This proposed rule will not preempt any State or local laws,
regulations, or policies, unless they present an irreconcilable
conflict with this rule.
The Act provides that administrative proceedings must be exhausted
before parties may file suit in court. Under section 608c(15)(A) of the
Act, any handler subject to an order may file with the Secretary a
petition stating that the order, any provision of the order, or any
obligation imposed in connection with the order is not in accordance
with
[[Page 6329]]
law and request a modification of the order or to be exempted
therefrom. A handler is afforded the opportunity for a hearing on the
petition. After the hearing the Secretary would rule on the petition.
The Act provides that the district court of the United States in any
district in which the handler is an inhabitant, or has his or her
principal place of business, has jurisdiction in equity to review the
Secretary's ruling on the petition, provided a bill in equity is filed
not later than 20 days after the date of the entry of the ruling.
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA), the Administrator of the Agricultural Marketing Service
(AMS) has considered the economic impact of this action on small
entities.
The purpose of the RFA is to fit regulatory actions to the scale of
business subject to such actions in order that small businesses will
not be unduly or disproportionately burdened. Marketing orders issued
pursuant to the Act, and rules issued thereunder, are unique in that
they are brought about through group action of essentially small
entities acting on their own behalf. Thus, both statutes have small
entity orientation and compatibility.
There are 35 handlers of South Texas onions who are subject to
regulation under the marketing order and 89 producers in the regulated
area. Small agricultural service firms, which includes handlers, have
been defined by the Small Business Administration (13 CFR 121.601) as
those having annual receipts of less than $5,000,000, and small
agricultural producers are defined as those having annual receipts of
less than $500,000. The majority of handlers and producers of South
Texas onions may be classified as small entities.
At a public meeting on November 8, 1994, the South Texas Onion
Committee (committee) unanimously recommended, under the authority of
Sec. 959.52(c) of the order, changing the termination date of the
regulatory period for all varieties of regulated onions from June 15 to
June 4. Currently, order regulations are in effect from March 1 through
June 15 each year. The early and mid-season crop is produced in the
Lower Rio Grande Valley (District 1), which generally accounts for
about 80 percent of the total. The remaining crop, generally 20
percent, is produced in the Laredo-Winter Garden area of South Texas
(District 2). These are the last regulated shipments to leave the
production area each season.
In April 1994, based on a committee recommendation, the regulatory
period was extended from May 20 to June 15 [59 FR 17265; April 12,
1994]. At that time, the committee believed that the application of
quality control requirements over a longer time was necessary to
enhance the South Texas onion industry's market research and promotion
efforts, and protect its quality image. The committee also believed
that District 2 handlers should pay assessments on more of their
shipments for the research and promotion programs that benefit the
entire industry.
After one season's experience, District 2 growers and handlers
requested the committee to reconsider the regulatory extension.
Although assessment funds are still needed and maintaining the quality
of the shipments remains of great importance, experience appears to
indicate that the strong competition from other growing areas outweighs
these problems.
Shipments made from District 2 compete with onions produced in West
Texas and other areas of the United States not regulated under Federal
marketing orders. Onion prices are usually quite low during this period
and these unregulated areas have a competitive advantage over District
2 because inspection costs for quality control purposes and
administrative assessments are not incurred by shippers from these
areas. Ending regulations on June 4, rather than June 15, apparently
would relieve restrictions on District 2 shippers and help them become
more competitive with shippers from these production areas without
diminishing program objectives.
Section 8e provides that whenever certain specified commodities,
including onions, are regulated under a Federal marketing order,
imports of that commodity must meet the same or comparable grade, size,
quality, and maturity requirements as those in effect for the
domestically produced commodity, subject to concurrence by the United
States Trade Representative. The Act further provides that when two or
more marketing orders covering the same commodity are concurrently in
effect, imports will be subject to the requirements established for the
commodity grown in the area with which the imported commodity is in
most direct competition. Because this rule would change the regulatory
period under the South Texas onion marketing order, corresponding
changes would be needed in the onion import regulations. Such changes
are to be addressed in a separate onion import rule.
Based on available information, the Administrator of the AMS has
determined that this action would not have a significant economic
impact on a substantial number of small entities.
List of Subjects in 7 CFR Part 959
Marketing agreements, Onions, Reporting and recordkeeping
requirements.
For the reasons set forth in the preamble, 7 CFR part 959 is
proposed to be amended as follows:
PART 959--ONIONS GROWN IN SOUTH TEXAS
1. The authority citation for 7 CFR part 959 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
2. In Sec. 959.322, the introductory text is revised to read as
follows:
Sec. 959.322 Handling regulation.
During the period beginning March 1 and ending June 4, no handler
shall handle any onions unless they comply with paragraphs (a) through
(d), or (e), or (f) of this section. In addition, no handler may
package or load onions on Sunday during the period March 1 through May
20.
* * * * *
Dated: February 12, 1996.
Sharon Bomer Lauritsen,
Deputy Director, Fruit and Vegetable Division.
[FR Doc. 96-3610 Filed 2-16-96; 8:45 am]
BILLING CODE 3410-02-P
Complete official Federal Register PDF
FR Doc. 96-3555 Revision of Miscellaneous Hazardous Materials Regulations; Regulatory Review
[Federal Register Volume 61, Number 34 (Tuesday, February 20, 1996)]
[Proposed Rules]
[Pages 6478-6486]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3555]
[[Page 6477]]
_______________________________________________________________________
Part V
Department of Transportation
_______________________________________________________________________
Research and Special Programs Administration
_______________________________________________________________________
49 CFR Part 171, et al.
Revision of Miscellaneous Hazardous Regulations; Regulatory Review;
Proposed Rule
Federal Register / Vol. 61, No. 34 / Tuesday, February 20, 1996 /
Proposed Rules
[[Page 6478]]
DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Parts 171, 172, 173, 176, 177, and 178
[Docket HM-222B; Notice No. 96-3]
RIN 2137-AC76
Revision of Miscellaneous Hazardous Materials Regulations;
Regulatory Review
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Notice of proposed rulemaking (NPRM).
-----------------------------------------------------------------------
SUMMARY: RSPA proposes to revise the Hazardous Materials Regulations
(HMR) based on its review of the HMR and on written and oral comments
received from the public concerning regulatory reform. The intended
effect of this rulemaking is to reduce unnecessary regulatory burdens
on industry and make the regulations shorter and easier to use without
compromising public safety. In particular, RSPA is proposing reductions
in requirements pertaining to training frequency, incident reporting,
and emergency response telephone numbers. This action is in response to
President Clinton's March 4, 1995 memorandum to heads of departments
and agencies calling for a review of all agency regulations and
directing front line regulators to ``get out of Washington'' and create
grassroots partnerships with the regulated community.
DATES: Comments must be received on or before April 19, 1996.
ADDRESSES: Please address written comments to the Dockets Unit (DHM-
30), Research and Special Programs Administration, U.S. Department of
Transportation, Washington, DC 20590-0001. Comments may also be faxed
to (202) 366-3753. Comments should identify the docket (Docket No. HM-
222B). The Dockets Unit is located in Room 8421 of the Nassif Building,
400 Seventh Street SW., Washington, DC 20590-0001. Office hours are
8:30 a.m. to 5:00 p.m., Monday through Friday, excluding public
holidays.
FOR FURTHER INFORMATION CONTACT: John A. Gale or Jennifer Antonielli,
(202) 366-8553; Office of Hazardous Materials Standards, RSPA,
Department of Transportation, Washington, DC 20590-0001.
SUPPLEMENTARY INFORMATION:
I. Background
On March 4, 1995, President Clinton issued a memorandum to heads of
departments and agencies calling for a review of all agency regulations
and elimination or revision of those regulations that are outdated or
in need of reform. In response to the President's directive, RSPA
performed an extensive review of the Hazardous Materials Regulations
(HMR; 49 CFR Parts 171-180), and associated procedural rules (49 CFR
Parts 106 and 107).
The President also directed that front line regulators ``* * * get
out of Washington and create grassroots partnerships'' with people
affected by agency regulations. On April 4, 1995, RSPA published in the
Federal Register (60 FR 17049) a notice announcing seven public
meetings and requesting comments on its hazardous materials safety
program. RSPA requested comments on ways to improve the HMR and the
kind and quality of services its customers want. RSPA received over 50
written comments in response to the notice. On July 28, 1995, RSPA
published a second notice (60 FR 38888) announcing five more public
meetings to be held from September to January 1996. On October 13,
1995, (60 FR 53321) RSPA issued an NPRM under Docket HM-222A that
proposed to remove those sections of the regulations that have been
identified in RSPA's regulatory review, in comments, and in the public
meetings held to date as being unnecessary, duplicative, or outdated.
In this NPRM, RSPA proposes to amend various sections of the HMR
based on agency initiative and on written and oral comments received
from the public on regulatory reform. This rulemaking is one of several
rulemakings that RSPA will initiate in response to its regulatory
review, public meetings, and comments.
II. Proposed Changes
Part 171
Section 171.16. Several commenters requested modification of the
incident reporting requirements in Part 171. One commenter requested
that exceptions from the incident reporting requirements in Sec. 171.16
be provided for limited quantities. RSPA concurs that continued
reporting of certain incidents involving limited quantities would be of
minimal value when weighed against the burden on the carriers required
to prepare incident reports. Therefore, except for materials
transported by aircraft, RSPA proposes certain exceptions from the
incident reporting requirements in Sec. 171.16 for limited quantities
of Packing Group II and III materials.
Part 172
Section 172.101. Based on a commenter's request, RSPA proposes to
amend the Sec. 172.101 Table for the entries ``Cartridges for weapons,
blank, or Cartridges, small arms, blank, UN 0014''; ``Cartridges for
weapons, inert projectile, or Cartridges, small arms, UN0012'';
``Cartridges, power device, UN0323''; and ``Cartridges, small arms'',
in Column (7), by removing the reference ``112''. Also for these
entries, in Column (8A) of the Sec. 172.101 Table, the word ``None'' or
``230'', as appropriate, would be removed and replaced with ``63''. The
provisions to reclass an explosive as an ORM-D material, currently
contained in Special Provision 112 and in Sec. 173.230(b), would be
relocated to Sec. 173.63(b) to minimize confusion. See also preamble
discussion on proposed amendments to Sec. 173.230.
One commenter requested that RSPA amend Column (7) of the
Sec. 172.101 Table for the entry ``Ethanol or Ethyl alcohol or Ethanol
solutions or Ethyl alcohol solutions'' by adding Special Provision
``24'' to allow ethanol the same packing group criteria as alcoholic
beverages. Special Provision 24 recently was adopted in the HMR for the
shipping name ``Alcoholic beverages'' to provide alternative packing
group criteria to that of Sec. 173.121. The special provision specifies
that alcoholic beverages with more than 70 percent alcohol by volume
are assigned Packing Group II and alcoholic beverages containing more
than 24 percent but not more than 70 percent alcohol are assigned
Packing Group III. The commenter requested that the special provision
also be assigned to ethanol because Packing Group II or III distilled
spirits can be and are shipped under either ``Alcoholic beverages'' or
``Ethanol or Ethyl alcohol or Ethanol solutions or Ethyl alcohol
solutions.'' RSPA agrees with the commenter and proposes to add Special
Provision ``24'' in Column (7) of the Sec. 172.101 Table for the entry
``Ethanol or Ethyl alcohol or Ethanol solutions or Ethyl alcohol
solutions.''
Section 172.102. In paragraph (c)(1), RSPA proposes to remove
Special Provision 112 because its provisions would be relocated to
Sec. 173.63(b). See also preamble discussion on proposed changes to
Secs. 172.101 and 173.230.
Section 172.201. For clarity, RSPA proposes to amend
Sec. 172.201(d) by adding a cross-reference to Sec. 172.604(c)
[[Page 6479]]
for exceptions from the requirement to maintain an emergency response
telephone number.
Section 172.203. RSPA proposes to revise the requirements for
identifying hazardous substances on shipping papers and package
markings. Currently under the HMR, all constituents in a mixture or
solution that meet the definition of ``hazardous substance'' in
Sec. 171.8 must be identified on shipping papers and package markings.
RSPA proposes, consistent with the technical name requirements in
Sec. 172.203(k), to require for hazardous materials that contain two or
more hazardous substances that at least two hazardous substances be
identified on shipping papers and package markings.
In addition, RSPA proposes to amend paragraph (e)(2) and remove
paragraph (e)(3) to eliminate the requirement to enter on shipping
papers ``RESIDUE: Last Contained * * *'' for packages containing only
the residue of a hazardous substance. This proposal is intended to
reduce regulatory burdens on industry.
Section 172.316. One commenter requested that RSPA allow consumer
commodities that are prepared in accordance with the International
Civil Aviation Organization Technical Instructions for the Safe
Transport of Dangerous Goods by Air (ICAO Technical Instructions) to be
transported by motor vehicle. RSPA concurs and proposes to modify
Sec. 172.316 to allow the CLASS 9 label in lieu of the ORM-D marking on
packages of consumer commodities.
Section 172.324. Consistent with proposed amendments to
Sec. 172.203(c), RSPA proposes to amend Sec. 172.324(a) to ease the
burden of identifying each hazardous substance on package markings.
RSPA would require for packages that contain a mixture or solution
comprising two or more hazardous substances, that at least two
hazardous substances be marked on the package in association with the
proper shipping name.
Section 172.402. One commenter requested an exception from the
requirement for subsidiary hazard labeling for certain packages of
Class 7 (radioactive) materials that also meet the definition of
another hazard class, except Class 9. Generally, the commenter seeks
parity with a labeling exception in Sec. 173.4 for small quantities of
hazardous materials. These Class 7 materials conform to all
requirements in Sec. 173.4, except for their specific activity level,
which exceeds permissible limits for a limited quantity radioactive
material. Because the non-radioactive hazards of these materials pose a
minimal risk in transportation, the commenter suggests that
Sec. 172.402(d) be revised to except them from the requirement to label
for the subsidiary hazard. Based upon successful experience under
exemption DOT-E 10660, which currently authorizes transportation of
certain packages, and consistent with the commenter's request, RSPA
proposes to revise paragraph (d) by adding an exception from the
subsidiary hazard labeling requirement for packages of Class 7
materials that otherwise conform to Sec. 173.4.
Section 172.500. RSPA proposes to redesignate paragraphs (b)(4) and
(b)(5) as paragraphs (b)(5) and (b)(6) and add a new paragraph (b)(4)
to clarify that small quantities of Division 4.3 materials prepared in
accordance with Sec. 173.13 are excepted from the placarding
requirements of Subpart F of Part 172.
Section 172.600. In accordance with Sec. 172.600(d), a material
that is classed as ORM-D, except when offered or intended for
transportation by air, is excepted from the emergency response
information and telephone number requirements of Subpart G of Part 172.
The Conference on Safe Transportation of Hazardous Articles (COSTHA)
petitioned (P-1094) RSPA to except all ORM-D materials, including those
transported by air, from emergency response information requirements
because of the small quantities involved and minimal hazards associated
with ORM-D materials. COSTHA further stated that because an ORM-D
material is not assigned an identification number, no specific
emergency instructions are provided. Therefore, it contends that
documented emergency response information and the 24-hour response
telephone number are unnecessary. COSTHA also reported that many
consumer commodities are allowed to be carried as checked and carry-on
baggage without application of the emergency response communication
standards. Thus, it argues that the aggregate quantity of consumer
commodities that are carried by passengers may be considerably larger
than that carried as cargo to which the emergency response information
is required. RSPA agrees with the petitioner that the requirements to
provide emergency response information and maintain a 24-hour telephone
number are unduly burdensome for shippers of ORM-D air materials and,
thus, proposes an exception in Sec. 172.600(d) for these materials.
Section 172.604. Based on its own initiative and petitions for
rulemaking, and because the costs to implement these requirements
outweigh the benefits, RSPA proposes to except the following materials
from emergency response telephone number requirements: (1) liquid
petroleum distillate fuels (e.g., gasoline, propane, and diesel fuel);
(2) limited quantities of hazardous materials; and (3) materials
described under the shipping names ``Engines, internal combustion'';
``Battery powered equipment''; ``Battery powered vehicle'';
``Wheelchair, electric''; ``Carbon dioxide, solid''; ``Dry ice'';
``Fish meal, stabilized''; ``Fish scrap, stabilized''; ``Castor bean'';
``Castor meal''; ``Castor flake''; ``Castor pomace''; ``Mercury
contained in manufactured articles''; and ``Refrigerating machine''.
Since emergency responders routinely handle incidents involving
liquid petroleum distillate fuels, it is questionable that the 24-hour
emergency response telephone number could provide emergency responders
with any additional information of value beyond that which is required
to be carried in the vehicle. Therefore, RSPA proposes to except liquid
petroleum distillate fuels from the emergency response telephone number
requirements in Sec. 172.604.
RSPA believes that the costs outweigh the benefits associated with
maintaining the 24-hour emergency response telephone number
requirements for shipments of limited quantities and the materials
described under the shipping names listed above, e.g., Engines,
internal combustion, etc. Therefore, RSPA proposes to except those
materials from the emergency response telephone number requirements of
Sec. 172.604.
In addition, based on its own initiative, RSPA proposes to clarify
that more than one emergency response telephone number with different
hours of operation may be used to satisfy the requirements of
Sec. 172.604 if the following conditions are met: (1) the hours of
operation of each number are clearly identified in association with the
respective telephone number; (2) each respective telephone number is
monitored during the time indicated while the hazardous material is in
transportation; and (3) the requirements of Sec. 172.604 (a)(2),
(a)(3), and (b) are met. This proposed amendment is intended to codify
RSPA's current position on this matter.
Section 172.704. RSPA stated in the notice of public meetings under
Docket HM-222 (60 FR 17049) that it would consider extending the
requirement for recurrent training from every two years to every three
or four years. RSPA
[[Page 6480]]
received several written and oral comments in support of decreasing the
frequency specified to train hazmat employees in accordance with
Subpart H of Part 172. Many commenters claimed that the current
requirement to train every two years is costly, difficult to
administer, and inconsistent with other training programs required
under other Federal, State and local regulations. Specifically,
commenters from the marine cargo handling industry requested that RSPA
increase the training interval to every four years for certain
longshoremen who only handle sealed containers of hazardous materials
and are not responsible for handling incidents involving the hazardous
materials. Other commenters stated that the recurrent training
requirement should be aligned to coincide with the Commercial Driver's
License renewal requirement which is generally every four years. One
commenter suggested that the interval for hazmat training coincide with
the Federal Railroad Administration requirement in 49 CFR 240.217(c)(1)
to certify engineers every three years. Some commenters requested that
RSPA require hazmat training every five years. In this NPRM, RSPA
proposes to decrease the frequency of all required hazmat training from
two years to three years. This frequency is consistent with other
training programs such as the training required under the
Transportation of Dangerous Goods Regulations issued by the Government
of Canada. Except as provided in Sec. 172.704(c), hazmat employees must
be trained whenever their hazmat functions change or the requirements
are revised, regardless of the minimally required training frequency
(see Sec. 172.702). For example, if a requirement for information on a
shipping paper changes as a result of a final rule, a hazmat employee
is required to be trained in the revised requirement as soon as the new
requirement becomes effective.
RSPA also received comments from the marine cargo handling industry
concerning the applicability of the training requirements to
``casuals'' who are longshoreman who are hired for short periods,
sometimes one day at a time. In accordance with Sec. 172.704(c), hazmat
employees must be trained within 90 days after employment. During this
90-day period, employees may perform hazmat functions only under the
direct supervision of a properly trained and knowledgeable hazmat
employee. This provision applies to a ``casual'' employed for less than
90 consecutive days by the same employer. In addition to removing
obsolete effective dates, RSPA is proposing to revise Sec. 172.704(c)
to clarify its position concerning the ``direct'' supervision of a
hazmat employee who has not received initial training. RSPA's position
is that the person who is providing direct supervision must be able to
instruct the employee on how to properly perform the hazmat function,
must observe performance of the hazmat function, and must be able to
take immediate corrective actions for any function not properly
performed. Therefore, RSPA is proposing to add the word ``direct''
preceding the word ``supervision'' in Sec. 172.704(c)(1) and, in
Sec. 172.702(b), RSPA is adding a reference to the exceptions for
initial training found in Sec. 172.704(c)(1).
Part 173
Section 173.4. Currently, the HMR do not permit Class 2, Divisions
4.2 and 4.3 materials and hazardous materials identified in paragraph
(a)(11) to be shipped under the small quantity provisions, although
some of these materials are eligible for similar exceptions under the
ICAO Technical Instructions or an approval issued by the Associate
Administrator for Hazardous Materials Safety. For example, UN2031
(Nitric acid) is specifically listed in paragraph (a)(11) and may not
be shipped in accordance with the small quantity provisions. However,
small quantities of nitric acid are authorized under a number of
approvals to be shipped in this manner and no safety problems have been
encountered. In this notice, RSPA proposes to revise the small quantity
provisions by amending the introductory text in paragraph (a) to
authorize Divisions 4.2 and 4.3, Packing Groups II and III, materials
to be shipped in accordance with these provisions. This notice proposes
to remove paragraph (a)(11) and add a new paragraph (c) to allow small
quantities of certain categories of hazardous materials that are not
authorized under this exception to be shipped in accordance with this
section if specifically approved by the Associate Administrator for
Hazardous Materials Safety. RSPA also proposes to revise the marking
required to be displayed on packages of small quantities of hazardous
materials in paragraph (a)(10) by shortening the length of the required
statement. The proposed changes to Sec. 173.4 are intended to ease
burdens on industry and facilitate international transportation of
hazardous materials in small quantities.
Section 173.13. RSPA proposes to add a new section Sec. 173.13 that
would incorporate, for highway and rail transport only, the provisions
of DOT exemptions E-7891 and E-9168 into the HMR. These exemptions, and
others commonly referred to as the ``poison pack exemptions,'' allow
small quantities of hazardous materials to be transported without their
primary or subsidiary labels. In addition, Division 4.3 materials which
meet the requirements of Sec. 173.13 would be excepted from the
placarding requirements of the HMR and Division 6.1 materials packaged
in the specified manner would be allowed to be transported with
foodstuffs.
Section 173.21. RSPA proposes to incorporate into Sec. 173.21 the
provisions of a competent authority approval for temperature-controlled
shipments. This would eliminate the requirement that all shipments
requiring temperature control must be approved by the Associate
Administrator for Hazardous Materials Safety.
Section 173.32a. RSPA proposes to remove a requirement for an
approval agency to submit an approval certificate to the Associate
Administrator for Hazardous Materials Safety. This proposed amendment
would provide relief from paperwork reporting burdens.
Section 173.155. RSPA proposes to amend Sec. 173.155 by increasing
the quantity of Class 9 liquid materials permitted in an inner
packaging from 4.0 L (1 gallon) to 5.0 L (1.3 gallons). This proposal
is consistent with the United Nations Recommendations on the Transport
of Dangerous Goods (UN Recommendations) and is intended to provide
relief and facilitate transportation of these materials in
international commerce. RSPA may consider revising other limited
quantities or providing additional limited quantity exceptions for
other hazardous materials, (e.g., Division 4.3 materials), consistent
with the UN Recommendations, in a future rulemaking action.
Section 173.171. Currently, Secs. 173.171 and 177.838(g) prescribe
requirements for smokeless powder for small arms. However,
Sec. 177.838(g) provides additional relief by permitting inside
packages of smokeless powder to be overpacked in UN 4G boxes, provided
the net weight of smokeless powder in any one box does not exceed 7.26
kg (16 pounds). This provision is not contained in Sec. 173.171.
Section 177.838(g) should be limited to provisions that apply
specifically to motor carriers and should not contain packaging
exceptions generally available to all shippers. Therefore, RSPA
proposes to remove the
[[Page 6481]]
Sec. 177.838(g) provisions pertaining to classification and packaging
and revise Sec. 173.171 by adding the provision concerning smokeless
powder in overpacks.
In addition, one commenter requested that RSPA allow smokeless
powder that has been reclassed as a Division 4.1 material to be
transported by vessel and cargo aircraft. The commenter also requested
that smokeless powder be allowed to be reclassed as ORM-D. RSPA agrees
that the exception to reclass smokeless powder to Division 4.1 should
be extended to transportation by vessel and cargo aircraft. However, an
ORM-D exception for smokeless powder may not provide an adequate level
of safety because shipping papers would not be required for
transportation by highway, rail or vessel and there would be no
restriction on the amount of material that is permitted in air cargo
compartments. RSPA believes that the hazards posed by smokeless powder,
a Packing Group I hazardous material, necessitate hazard communication
requirements (e.g., shipping papers, labels, and placards). Therefore,
RSPA proposes to allow smokeless powder that has been reclassed as a
Division 4.1 material to be transported by vessel and cargo aircraft,
but is not adopting the commenter's proposal to allow smokeless powder
to be reclassed as an ORM-D material.
Section 173.220. RSPA received a petition for rulemaking (P-1204)
requesting an amendment to the HMR to except self-propelled vehicles
transported by vessel from the emergency response telephone number
requirements. The petitioner urged RSPA to provide this exception
because self-propelled vehicles do not pose an unreasonable risk to the
environment or the safety of personnel handling these items. RSPA
recognizes that the emergency response information required under
Sec. 172.602 provides emergency responders with the necessary
information to handle an incident involving a self-propelled vehicle.
It is questionable whether a shipper could provide emergency responders
with any additional information of value. Therefore, RSPA proposes to
amend paragraph (g)(2) in Sec. 173.220 to except shipments of self-
propelled vehicles and mechanized equipment containing internal
combustion engines, or wet batteries transported by vessel or aircraft,
from the emergency response telephone number requirements of
Sec. 172.604.
Section 173.230. Based on a commenter's request, RSPA proposes to
clarify provisions that permit the reclassification of certain Division
1.4S materials as ORM-D materials by removing Special Provision 112 in
Sec. 172.102(c)(1), relocating the provisions in Sec. 173.230(b) to
Sec. 173.63, and removing Sec. 173.230. See also preamble discussion on
proposed amendments to Secs. 172.101 and 172.102.
Part 176
Section 176.104. RSPA received a petition (P-1183), from the
Department of Defense (DOD), requesting removal of a requirement to use
a landing mat when depositing palletized packages of Division 1.1 and
1.2 (explosives) materials on deck. The petitioner states that landing
mats are cumbersome because they impede the operation of mechanized
equipment used to load and unload palletized materials. In addition,
the petitioner added that the landing mat serves no real purpose
because the pallet bottom serves as the shock absorber. RSPA agrees
with the petitioner and proposes to revise Sec. 176.104(i) to provide
relief for palletized loads of Division 1.1 and 1.2 materials.
Part 177
Section 177.801. Based on its own initiative, RSPA proposes to
revise this paragraph to include references to forbidden materials that
were previously in Sec. 177.821(c).
Section 177.818. RSPA proposes to remove this section because its
provisions are covered under the emergency response and training
provisions of the HMR.
Section 177.821. RSPA proposes to remove this section because it
duplicates other HMR provisions.
Section 177.822. RSPA proposes to remove this section because
paragraph (a) is duplicative of other provisions for explosives and
paragraph (b), including a reference to Specification MC200, is
unnecessary. Also, in Sec. 178.315, RSPA proposes to remove
Specification MC200 from the HMR. See preamble discussion of
Sec. 178.315 of this proposed rule.
Sections 177.824 and 177.834. RSPA proposes to remove Secs. 177.824
and 177.834(b) and (j) because they duplicate other HMR provisions. In
addition, in Sec. 177.834, a new paragraph (j) would be added to
consolidate provisions in Secs. 177.837(d), 177.839(d), and 177.841(d)
that require manholes and valves on cargo tanks to be closed prior to
transportation.
Section 177.835. RSPA proposes to remove paragraphs (k), (l), and
(m) because parts 172 and 173 limit the concentration of liquid
nitroglycerin and diethylene glycol dinitrate that may be offered or
accepted for transportation. Therefore, these paragraphs are
unnecessary.
Section 177.838. The HMR prescribe specific packaging requirements
and exceptions for smokeless powder for small arms in Sec. 173.171. In
this NPRM, RSPA proposes to amend paragraph (g) by removing procedures
for reclassifying Division 1.4S materials because they are redundant
with Sec. 173.171.
Section 177.839. RSPA proposes to revise paragraph (a) by limiting
the applicability of this paragraph to nitric acid in concentrations of
50 percent or greater. In addition, in paragraph (a), the restriction
on stacking containers of nitric acid higher than two tiers and
paragraph (b) would be removed because they are outdated and
unnecessary.
Section 177.841. One commenter requested that RSPA amend
Sec. 177.841 to be consistent with provisions of Sec. 175.630. The
commenter stated that the HMR currently authorize the transport of
foodstuffs and poisons in the same aircraft, provided the materials are
loaded into separate unit load devices that are not adjacent to each
other, or into closed unit load devices. The commenter asserted that if
this practice is authorized in air transportation, it should be
authorized in highway transportation. RSPA agrees with the commenter
that foodstuffs which are loaded in a closed unit load device should be
allowed to be transported in the same motor vehicle with poisons that
are loaded in a separate closed unit load device. However, pending
further review of the impact on safety, RSPA is not proposing to allow
foodstuffs and poisons to be in the same motor vehicle when they are
loaded into separate open unit load devices. In addition, RSPA proposes
to remove the provision allowing use of the container identified as
package ``4000'' in the National Motor Freight Classification 100-1,
for the transport of foodstuffs and poisons on the same motor vehicle.
RSPA believes that this container has not been used for some time and,
therefore, reference to it is unnecessary.
Section 177.848. RSPA proposes to amend paragraph (e)(5) by
revising the definition of footnote ``A'' to the segregation and
separation table to clarify that ammonium nitrate, Division 5.1,
UN1942, may be loaded in the same transport vehicle with Divisions 1.1
and 1.5 materials.
Part 178
Section 178.315. RSPA proposes to remove Specification MC200
requirements from the HMR because
[[Page 6482]]
RSPA believes that this container is no longer utilized in hazardous
materials service. RSPA invites comments on whether the MC200
containers still exist.
III. Regulatory Analyses and Notices
Executive Order 12866 and DOT Regulatory Policies and Procedures
This proposed rule is not considered a significant regulatory
action under section 3(f) of Executive Order 12866 and was not reviewed
by the Office of Management and Budget. The rule is not considered
significant under the regulatory policies and procedures of the
Department of Transportation (44 FR 11034). The economic impact of this
rule is minimal to the extent that the preparation of a regulatory
evaluation is not warranted.
Executive Order 12612
This proposed rule has been analyzed in accordance with the
principles and criteria contained in Executive Order 12612
(``Federalism''). The Federal hazardous materials transportation law
(49 U.S.C. 5101-5127) contains an express preemption provision that
preempts State, local, and Indian tribe requirements on certain covered
subjects. Covered subjects are:
(i) the designation, description, and classification of
hazardous material;
(ii) the packing, repacking, handling, labeling, marking, and
placarding of hazardous material;
(iii) the preparation, execution, and use of shipping documents
pertaining to hazardous material and requirements respecting the
number, content, and placement of such documents;
(iv) the written notification, recording, and reporting of the
unintentional release in transportation of hazardous material; or
(v) the design, manufacturing, fabrication, marking,
maintenance, reconditioning, repairing, or testing of a package or
container which is represented, marked, certified, or sold as
qualified for use in the transportation of hazardous material.
Title 49 U.S.C. 5125(b)(2) provides that if DOT issues a regulation
concerning any of the covered subjects after November 16, 1990, DOT
must determine and publish in the Federal Register the effective date
of Federal preemption. That effective date may not be earlier than the
90th day following the date of issuance of the final rule and not later
than two years after the date of issuance. This proposed rule would
clarify and provide relief from certain regulations governing the
transportation of hazardous materials. RSPA solicits comments on
whether the proposed rule would have any effect on State, local or
Indian tribe requirements and, if so, the most appropriate effective
date of Federal preemption. Because RSPA lacks discretion in this area,
preparation of a federalism assessment is not warranted.
Regulatory Flexibility Act
I certify that this proposed rule will not have a significant
economic impact on a substantial number of small entities. This
proposed rule does not impose any new requirements on persons subject
to the HMR.
Paperwork Reduction Act
This proposed rule does not propose any new information collection
requirements.
Regulation Identifier Number (RIN)
A regulation identifier number (RIN) is assigned to each regulatory
action listed in the Unified Agenda of Federal Regulations. The
Regulatory Information Service Center publishes the Unified Agenda in
April and October of each year. The RIN number contained in the heading
of this document can be used to cross-reference this action with the
Unified Agenda.
List of Subjects
49 CFR Part 171
Exports, Hazardous materials transportation, Hazardous waste,
Imports, Reporting and recordkeeping requirements.
49 CFR Part 172
Hazardous materials transportation, Hazardous waste, Labeling,
Marking, Packaging and containers, Reporting and recordkeeping
requirements.
49 CFR Part 173
Hazardous materials transportation, Packaging and containers,
Radioactive materials, Reporting and recordkeeping requirements,
Uranium.
49 CFR Part 176
Hazardous materials transportation, Maritime carriers, Radioactive
materials, Reporting and recordkeeping requirements.
49 CFR Part 177
Hazardous materials transportation, Motor carriers, Radioactive
materials, Reporting and recordkeeping requirements.
49 CFR Part 178
Hazardous materials transportation, Packaging and containers,
Reporting and recordkeeping requirements.
In consideration of the foregoing, 49 CFR parts 171, 172, 173, 176,
177, and 178 would be amended as follows:
PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS
1. The authority citation for part 171 would continue to read as
follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
2. In Sec. 171.16, paragraph (c) would be revised, paragraph (d)(2)
would be amended by removing the word ``nor'' at the end of the
paragraph, paragraph (d)(3) would be redesignated as paragraph (d)(4),
and a new paragraph (d)(3) would be added to read as follows:
Sec. 171.16 Detailed hazardous materials incident reports.
* * * * *
(c) Except as provided in paragraph (d) of this section, the
requirements of paragraph (a) of this section do not apply to incidents
involving the unintentional release of a hazardous material--
(1) Transported under one of the following proper shipping names:
(i) Consumer commodity.
(ii) Battery, electric storage, wet, filled with acid or alkali.
(iii) Paint and paint related material when shipped in packagings
of five gallons or less.
(2) Prepared and transported as a limited quantity shipment in
accordance with this subchapter.
(d) * * *
(3) Except for consumer commodities, materials in Packing Group I;
or
* * * * *
PART 172--HAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, HAZARDOUS
MATERIALS COMMUNICATION, EMERGENCY RESPONSE INFORMATION, AND
TRAINING REQUIREMENTS
3. The authority citation for part 172 would continue to read as
follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
Sec. 172.101 [Amended]
4. In the Sec. 172.101 Hazardous Materials Table, the following
changes would be made:
a. For the entries ``Cartridges for weapons, blank, or Cartridges,
small arms, blank, UN 0014''; ``Cartridges for weapons, inert
projectile, or Cartridges, small arms, UN0012''; ``Cartridges, power
device, UN0323''; and ``Cartridges, small arms'', in Column (7),
special provision ``112'' would be removed.
b. For the entries ``Cartridges for weapons, blank, ord Cartridges,
small arms, blank, UN 0014''; ``Cartridges for
[[Page 6483]]
weapons, inert projectile, or Cartridges, small arms, UN0012''; and
``Cartridges, power device, UN0323'', in Column (8A), the wording
``None'' would be revised to read ``63''.
c. For the entry ``Cartridges, small arms'', in Column (8A), the
wording ``230'' would be revised to read ``63''.
d. For the entry ``Ethanol or Ethyl alcohol or Ethanol solutions or
Ethyl alcohol solutions'', in Column (7), the wording ``24,'' would be
added immediately preceding ``T1'', in Packing Group II, and the
wording ``24,'' would be added immediately preceding ``B1'' in Packing
Group III.
e. For the entry ``Smokeless powder for small arms (100 pounds or
less), NA3178'', in Column (9B), the wording ``Forbidden'' would be
revised to read ``7.3 kg''.
Sec. 172.102 [Amended]
5. In Sec. 172.102, in paragraph (c)(1), special provision ``112''
would be removed.
6. In Sec. 172.201, paragraph (d) would be revised to read as
follows:
Sec. 172.201 General entries.
* * * * *
(d) Emergency response telephone number. Except as provided in
Sec. 172.604(c), a shipping paper must contain an emergency response
telephone number, as prescribed in subpart G of this part.
7. In Sec. 172.203, paragraph (c)(1) would be revised to read as
follows:
Sec. 172.203 Additional description requirements.
* * * * *
(c) Hazardous substances. (1) Except for Class 7 (radioactive)
materials described in accordance with paragraph (d) of this section,
if the proper shipping name for a material that is a hazardous
substance does not identify the hazardous substance by name, the name
of the hazardous substance shall be entered in parentheses in
association with the basic description. If the material contains two or
more hazardous substances, at least two hazardous substances must be
identified. For a hazardous waste, the waste code, if appropriate, may
be used to identify the hazardous substance.
* * * * *
Sec. 172.203 [Amended]
8. In addition, in Sec. 172.203, the following changes would be
made:
a. In paragraph (e)(2), the phrase ``and paragraph (e)(3) of this
section'' would be removed.
b. Paragraph (e)(3) would be removed.
9. In Sec. 172.316, the first sentence of paragraph (a) would be
revised to read as follows:
Sec. 172.316 Packagings containing materials classed as ORM-D.
(a) Each non-bulk packaging containing a material classed as ORM-D
must be marked on at least one side or end with the ORM-D designation,
immediately following or below the proper shipping name of the material
or labeled with the CLASS 9 label (see Sec. 172.446). * * *
* * * * *
Sec. 172.316 [Amended]
10. In addition, in Sec. 172.316, in paragraph (c), the wording
``marking ORM-D'' would be removed and replaced with ``marking ORM-D or
labeling with the CLASS 9 label''.
11. In Sec. 172.324, paragraph (a) would be revised to read as
follows:
Sec. 172.324 Hazardous substances in non-bulk packagings.
* * * * *
(a) Except for packages of radioactive material labeled in
accordance with Sec. 172.403, if the proper shipping name for a
material that is a hazardous substance does not identify the hazardous
substance by name, the name of the hazardous substance must be marked
on the package, in parentheses, in association with the proper shipping
name. If the material contains two or more hazardous substances, at
least two hazardous substances must be identified. For a hazardous
waste, the waste code, if appropriate, may be used to identify the
hazardous substance.
* * * * *
12. In Sec. 172.402, paragraph (d) would be revised to read as
follows:
Sec. 172.402 Additional labeling requirements.
* * * * *
(d) Class 7 (Radioactive) Materials. Except as otherwise provided
in this paragraph, each package containing a Class 7 material that also
meets the definition of one or more additional hazard classes must be
labeled as a Class 7 material as required by Sec. 172.403 of this
subpart and for each additional hazard. A subsidiary hazard label is
not required on a package containing a Class 7 material that conforms
to criteria specified in Sec. 173.4 of this subchapter, except
Sec. 173.4(a)(1)(iv) of this subchapter.
* * * * *
13. In Sec. 172.500, paragraphs (b)(4) and (b)(5) would be
redesignated as paragraphs (b)(5) and (b)(6), respectively, and a new
paragraph (b)(4) would be added to read as follows:
Sec. 172.500 Applicability of placarding requirements.
* * * * *
(b) * * *
(4) Small quantities of Division 4.3 materials prepared in
accordance with Sec. 173.13 of this subchapter;
* * * * *
14. In Sec. 172.600, paragraph (d) would be revised to read as
follows:
Sec. 172.600 Applicability and general requirements.
* * * * *
(d) Exceptions. The requirements of this subpart do not apply to
hazardous material which is excepted from the shipping paper
requirements of this subchapter or a material properly classified as an
ORM-D.
15. In Sec. 172.604, new paragraphs (c) and (d) would be added to
read as follows:
Sec. 172.604 Emergency response telephone number.
* * * * *
(c) A person may list more than one emergency response telephone
number with different hours of operation provided that--
(1) The hours of operation of each number are clearly identified in
association with the respective telephone number;
(2) Each respective telephone number is monitored during the time
indicated while the hazardous material is in transportation; and
(3) The requirements in paragraphs (a)(2), (a)(3), and (b) of this
section are met.
(d) The requirements of this section do not apply to--
(1) Hazardous materials that are offered for transportation under
the provisions applicable to limited quantities;
(2) Liquid petroleum distillate fuels; and
(3) Materials properly described under the shipping names
``Engines, internal combustion'', ``Battery powered equipment'',
``Battery powered vehicle'', ``Wheelchair, electric'', ``Carbon
dioxide, solid'', ``Dry ice'', ``Fish meal, stabilized'', ``Fish scrap,
stabilized'', ``Castor bean'', ``Castor meal'', ``Castor flake'',
``Castor pomace'', ``Mercury contained in manufactured articles'',
``Refrigerating machine''.
Sec. 172.702 [Amended]
16. In Sec. 172.702(b), the phrase ``A hazmat employee'' is removed
and replaced with the phrase, ``Except as
[[Page 6484]]
provided in Sec. 172.704(c)(1), a hazmat employee''.
16a. In Sec. 172.704, paragraphs (c)(1) and (c)(2) would be revised
to read as follows:
Sec. 172.704 Training requirements.
* * * * *
(c) * * * (1) Initial training. A new hazmat employee, or a hazmat
employee who changes job functions may perform those functions prior to
the completion of training provided--
(i) The employee performs those functions under the direct
supervision of a properly trained and knowledgeable hazmat employee;
and
(ii) The training is completed within 90 days after employment or a
change in job function.
(2) Recurrent training. A hazmat employee shall receive the
training required by this subpart at least once every three years.
* * * * *
PART 173--SHIPPERS--GENERAL REQUIREMENTS FOR SHIPMENTS AND
PACKAGINGS
17. The authority citation for part 173 would continue to read as
follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR part 1.53.
18. In Sec. 173.4, the section heading would be revised, paragraph
(a)(11) would be removed, paragraph (a) introductory text, paragraphs
(a)(9) and (a)(10) would be revised, and a new paragraph (c) would be
added to read as follows:
Sec. 173.4 Small quantity exceptions.
(a) Small quantities of Class 3, Division 4.1, Division 4.2 (PG II
and III), Division 4.3 (PG II and III), Division 5.1, Division 5.2,
Division 6.1, Class 7, Class 8, and Class 9 materials that also meet
the definition of one or more of these hazard classes, are not subject
to any other requirements of this subchapter when--
* * * * *
(9) The package is not opened or otherwise altered until it is no
longer in commerce; and
(10) The shipper certifies conformance with this section by marking
the outside of the package with the statement:
This package conforms to 49 CFR 173.4.
* * * * *
(c) Packages which contain Class 2, Division 4.2 (PG I), Division
4.3 (PG I) conforming to paragraphs (a)(1) through (a)(10) of this
section may be shipped if specifically approved by the Associate
Administrator for Hazardous Materials Safety.
19. Section 173.13 would be added to subpart A to read as follows:
Sec. 173.13 Exceptions for Class 3, Divisions 4.1, 4.2, 4.3, 5.1, 6.1,
and Class 8 and 9 materials.
(a) A Class 3, 8 or 9, or Division 4.1, 4.2, 4.3, 5.1, or 6.1
material is excepted from the labeling requirements of this subchapter
if prepared for transportation in accordance with the requirements of
this section. In addition, materials in Division 4.3 are excepted from
the placarding requirements of this subchapter when prepared in
accordance with the requirements of this section. A material that meets
the definition of a material poisonous by inhalation may not be offered
for transportation or transported under provisions of this section.
(b) A hazardous material conforming to requirements of this section
may be transported by motor vehicle or rail car only.
(c) A hazardous material permitted by paragraph (a) of this section
must be packaged as follows:
(1) For liquids:
(i) The hazardous material must be placed in a tightly closed
glass, plastic or metal inner packaging with a maximum capacity not
exceeding 1.2 liters. Sufficient outage must be provided such that the
inner packaging will not become liquid full at 55 deg. C (130 deg. F).
The net quantity (measured at 20 deg. C (68 deg. F)) of liquid in any
inner packaging may not exceed one liter.
(ii) The inner packaging must be placed in a hermetically-sealed
barrier bag which is impervious to the lading, and then wrapped in a
non-reactive absorbent material in sufficient quantity to completely
absorb the contents of the inner packaging, and placed in a snugly
fitting, rigid can.
(iii) The rigid can must be securely closed. For liquids that are
in Division 4.2 or 4.3, the rigid can must be hermetically sealed.
(iv) The rigid can must then be placed inside a securely closed,
outer packaging conforming to Sec. 173.201.
(v) Not more than four cans are permitted in an outer packaging.
(2) For solids:
(i) The hazardous material must be placed in a tightly closed
glass, plastic or metal inner packaging. The net quantity of material
in any inner packaging may not exceed 2.85 kg (6.25 pounds).
(ii) The inner packaging must be placed in a hermetically-sealed
barrier bag which is impervious to the lading.
(iii) The barrier bag and its contents must be placed inside an
outer packaging conforming to Sec. 173.201.
(iv) Not more than four bags are permitted in an outer packaging.
20. In Sec. 173.21, paragraph (f)(3) would be revised to read as
follows:
Sec. 173.21 Forbidden materials and packages.
* * * * *
(f) * * *
(3) Refrigeration may be used as a means of stabilization only when
approved by the Associate Administrator for Hazardous Materials Safety.
For status of approvals previously issued by the Bureau of Explosives,
see Sec. 171.19 of this subchapter. Methods of stabilization approved
by the Associate Administrator for Hazardous Materials Safety are as
follows:
(i) For highway transportation:
(A) A material meeting the criteria of paragraph (f) of this
section may be transported only in a transport vehicle, freight
container, or motor vehicle equipped with a mechanical refrigeration
unit, or loaded with a consumable refrigerant, capable of maintaining
the inside temperature of the transport vehicle, freight container, or
motor vehicle at or below the control temperature required for the
material during transportation.
(B) Each package containing a material meeting the criteria of
paragraph (f) of this section must be loaded and maintained at or below
the control temperature required for the material. The temperature of
the material shall be measured and entered on a written record at the
time the packaging is filled.
(C) The vehicle operator shall monitor the inside temperature of
the transport vehicle, freight container, or motor vehicle and enter
that temperature on a written record at the time the package is loaded
and thereafter at intervals not exceeding two hours. Alternatively, a
transport vehicle, freight container, or motor vehicle may be equipped
with a visible or audible warning device that activates when the inside
temperature of the transport vehicle, freight container, or motor
vehicle exceeds the control temperature required for the material. The
warning device must be readily visible or audible, as appropriate, from
the vehicle operator's seat in the vehicle.
(D) The carrier must advise the vehicle operator of the emergency
temperature for the material, and provide the vehicle operator with
written procedures that must be followed to assure maintenance of the
control temperature inside the transport vehicle, freight container, or
motor vehicle. The written procedures must
[[Page 6485]]
include instructions for the vehicle operator on actions to take if the
inside temperature exceeds the control temperature and approaches or
reaches the emergency temperature for the material. In addition, the
written temperature-control procedures must identify enroute points
where the consumable refrigerant may be procured, or where repairs to,
or replacement of, the mechanical refrigeration unit may be
accomplished.
(E) The vehicle operator shall maintain the written temperature-
control procedures, and the written record of temperature measurements
specified in paragraph (f)(3)(i)(C) of this section, if applicable, in
the same manner as specified in Sec. 177.817 of this subchapter for
shipping papers.
(F) If the control temperature is maintained by use of a consumable
refrigerant (e.g., dry ice or liquid nitrogen), the quantity of
consumable refrigerant must be sufficient to maintain the control
temperature for twice the average transit time under normal conditions
of transportation.
(G) A material that has a control temperature of 40 deg.C (104
deg.F) or higher may be transported by common carrier. A material that
has a control temperature below 40 deg.C (104 deg.F) must be
transported by a private or contract carrier.
(ii) For transportation by vessel, shipments are authorized in
accordance with the control-temperature requirements of Section 21 of
the General Introduction of the International Maritime Dangerous Goods
Code (IMDG Code).
* * * * *
21. In Sec. 173.32a, paragraph (c) would be revised to read as
follows:
Sec. 173.32a Approval of Specification IM portable tanks.
* * * * *
(c) Disposition of approval certificates. A copy of each approval
certificate must be retained by the approval agency and by the owner of
each IM portable tank.
* * * * *
Sec. 173.155 [Amended]
22. In Sec. 173.155, in paragraph (b)(1), the wording ``4.0 L (1
gallon)'' would be revised to read ``5.0 L (1.3 gallons)''.
23. In Sec. 173.171, the introductory text and paragraph (b) would
be revised and a new paragraph (d) would be added to read as follows:
Sec. 173.171 Smokeless powder for small arms.
Smokeless powder for small arms which has been classed in Division
1.3 may be reclassed in Division 4.1, for transportation by motor
vehicle, rail car, vessel, or cargo-only aircraft, subject to the
following conditions:
* * * * *
(b) The total quantity of smokeless powder must not exceed 45.4 kg
(100 pounds) net mass in:
(1) One rail car, motor vehicle, or cargo-only aircraft; or
(2) One freight container on a vessel, not to exceed four freight
containers per vessel.
* * * * *
(d) Inside packages that have been examined and approved by the
Associate Administrator for Hazardous Materials Safety may be packaged
in UN 4G fiberboard boxes meeting the Packing Group I performance
level, provided all inside containers are packed to prevent movement
and the net weight of smokeless powder in any one box does not exceed
7.3 kg (16 pounds).
24. In Sec. 173.220, paragraph (g)(2) would be revised to read as
follows:
Sec. 173.220 Internal combustion engines, self-propelled vehicles, and
mechanical equipment containing internal combustion engines or wet
batteries.
* * * * *
(g) * * *
(2) Are not subject to the requirements of subparts D, E, and F
(marking, labeling, and placarding, respectively) of part 172 or
Sec. 172.604 (emergency response telephone number) of this subchapter
for transportation by vessel or aircraft.
Sec. 173.63 [Amended]
Sec. 173.230 [Removed]
25. Paragraph (b) of Sec. 173.230 would be redesignated as
paragraph (b) of Sec. 173.63 and Sec. 173.230 would be removed.
PART 176--CARRIAGE BY VESSEL
26. The authority citation for part 176 would continue to read as
follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
27. In Sec. 176.104, the first sentence of paragraph (i) would be
revised to read as follows:
Sec. 176.104 Loading and unloading Class 1 (explosive) materials.
* * * * *
(i) A landing mat must be used when a draft of nonpalletized
Division 1.1 or 1.2 (Class A and B explosive materials) is deposited on
deck. * * *
* * * * *
PART 177--CARRIAGE BY PUBLIC HIGHWAY
28. The authority citation for part 177 would continue to read as
follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
Secs. 177.818, 177.821, 177.822, and 177.824 [Removed]
29. Sections 177.818, 177.821, 177.822, and 177.824 would be
removed.
30. Section 177.801 would be revised to read as follows:
Sec. 177.801 Unacceptable hazardous materials shipments.
No person may accept for transportation or transport by motor
vehicle a forbidden material or hazardous material that is not prepared
in accordance with the requirements of this subchapter.
31. In Sec. 177.834, paragraph (b) would be removed and reserved,
and paragraph (j) would be revised to read as follows:
Sec. 177.834 General requirements.
* * * * *
(j) Manholes and valves closed. A person may not drive a cargo tank
and a motor carrier may not permit a person to drive a cargo tank motor
vehicle containing a hazardous material regardless of quantity unless:
(1) All manhole closures are closed and secured; and
(2) All valves and other closures in liquid discharge systems are
closed and free of leaks.
* * * * *
Sec. 177.835 [Amended]
32. In Sec. 177.835, paragraphs (k), (l), and (m) would be removed.
Sec. 177.837 [Amended]
33. In Sec. 177.837, paragraph (d) would be removed.
34. In Sec. 177.838, paragraph (g) would be revised to read as
follows:
Sec. 177.838 Class 4 (flammable solid) materials, Class 5 (oxidizing)
materials, and Division 4.2 (pyroforic liquid) materials.
* * * * *
(g) A motor vehicle may only contain 45.4 kg (100 pounds) or less
net mass of material described as ``Smokeless powder for small arms,
Division 4.1''.
* * * * *
35. Section 177.839 would be revised to read as follows:
Sec. 177.839 Class 8 (corrosive) materials.
(See also Sec. 177.834 (a) through (j).)
(a) Nitric acid. No packaging of nitric acid of 50 percent or
greater concentration may not be loaded above
[[Page 6486]]
any packaging containing any other kind of material.
(b) Storage batteries. All storage batteries containing any
electrolyte must be so loaded, if loaded with other lading, that all
such batteries will be protected against other lading falling onto or
against them; and adequate means must be provided in all cases for the
protection and insulation of battery terminals against short circuits.
36. In Sec. 177.841, paragraph (d) would be removed and reserved
and paragraph (e)(1) would be revised to read as follows.
Sec. 177.841 Division 6.1 (poisonous) and Division 2.3 (poisonous gas)
materials.
* * * * *
(e) * * *
(1) Bearing a POISON label in the same motor vehicle with material
that is marked as or known to be foodstuffs, feed or any edible
material intended for consumption by humans or animals unless:
(i) The poisonous material is packaged in accordance with this
subchapter and is overpacked in a metal drum as specified in
Sec. 173.25(c) of this subchapter; or
(ii) The poisonous material is packaged in accordance with this
subchapter and loaded into a closed unit load device and the
foodstuffs, feed, or other edible material are loaded into another
closed unit load device;
* * * * *
Sec. 177.848 [Amended]
37-38. In Sec. 177.848, paragraph (e)(5), would be amended by
removing the phrase ``ammonium nitrate fertilizer'' and replace it with
the phrase ``ammonium nitrate (UN 1942) and ammonium nitrate
fertilizer''.
PART 178--SPECIFICATIONS FOR PACKAGINGS
39. The authority citation for part 178 would continue to read as
follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
Secs. 178.315, 178.315-1, 178.315-2, 178.315-3, 178.315-4, 178.315-
5 [Removed]
40. Sections 178.315, 178.315-1, 178.315-2, 178.315-3, 178.315-4,
and 178.315-5 would be removed.
Issued in Washington, DC on February 12, 1996, under authority
delegated in 49 CFR Part 106.
Alan I. Roberts,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. 96-3555 Filed 2-16-96; 8:45 am]
BILLING CODE 4910-60-P
Complete official Federal Register PDF
FR Doc. 96-3553 Groundfish of the Gulf of Alaska; Groundfish of the Bering Sea and Aleutian Islands Area; Reporting and Recordkeeping
[Federal Register Volume 61, Number 34 (Tuesday, February 20, 1996)]
[Proposed Rules]
[Pages 6337-6343]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3553]
=======================================================================
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 672 and 675
[Docket No. 960206024-6024-01; I.D. 122795A]
RIN 0648-AG32
Groundfish of the Gulf of Alaska; Groundfish of the Bering Sea
and Aleutian Islands Area; Reporting and Recordkeeping
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Advance notice of proposed rulemaking; request for comments.
-----------------------------------------------------------------------
SUMMARY: NMFS requests comments on this advance notice of proposed
rulemaking. If these proposed regulations were implemented, they would
require operators of processor vessels participating in the pollock
fisheries in the Gulf of Alaska (GOA) and the Bering Sea and Aleutian
Islands management area (BSAI) to install scales to weigh catch. This
document is necessary to obtain information from the operators of
processing vessels about problems involved in the proposed
installation, testing, and operation of marine scales to weigh fish
more accurately.
DATES: Comments must be submitted by March 21, 1996.
ADDRESSES: Comments must be sent to Ronald J. Berg, Chief, Fisheries
Management Division, Alaska Region, NMFS, P.O. Box 21668, Juneau, AK
99802, Attn: Lori Gravel.
FOR FURTHER INFORMATION CONTACT: Sally Bibb, 907-586-7228.
[[Page 6338]]
SUPPLEMENTARY INFORMATION: The domestic groundfish fisheries in the
exclusive economic zone (EEZ) of the GOA and the BSAI are managed by
NMFS in accordance with the Fishery Management Plan for Groundfish of
the Gulf of Alaska (GOA FMP) and the Fishery Management Plan for the
Groundfish Fishery of the Bering Sea and Aleutian Islands Area (BSAI
FMP). The FMPs were prepared by the North Pacific Fishery Management
Council (Council) under the Magnuson Fishery Conservation and
Management Act. The FMPs are implemented by regulations that appear at
50 CFR parts 672, 675, and 676. General regulations that also govern
the groundfish fisheries appear at 50 CFR part 620.
Public comment is requested on the following issues:
1. Is the three-part scale evaluation and approval process
recommended by weights and measures officials necessary to assure that
scales on processor vessels provide accurate information about fish
weight?
2. How would ``authorized weights and measures inspectors'' be
provided to perform scale inspections if they are not available from
Federal or state weights and measures agencies due to staff and budget
constraints? Are contract inspectors available? If so, what
qualifications would be required for contracted inspectors?
3. If weights and measures inspectors can be identified, how can
the location and timing of scale inspections be established to minimize
the cost to processor vessels?
4. Belt-conveyor or ``in-line flow'' scales initially should be
tested by comparing the recorded weight of several tons of fish with
the known weight of this fish as determined by an independent certified
scale. How will relatively small amounts of groundfish be provided to
dockside locations in Washington or Alaska over a period of several
months in order to test scales on 48 processor vessels?
5. What effect does NMFS' recommendation that scales be used to
weigh total catch prior to discard or processing and that the weight of
individual species in the catch be determined by applying observers'
species composition data to the scale weight have on industry?
6. Are NMFS' cost estimates for purchase and installation of marine
scale systems accurate?
The Council Recommendation
The Council initially requested NMFS to analyze a requirement to
weigh catch processed at sea in 1990. In June 1994, the Council
reviewed an initial draft Environmental Analysis/Regulatory Impact
Review/Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) on
improving total catch weight estimates in the groundfish fisheries, and
the draft analysis was revised based on recommendations from the
Council's Statistical and Scientific Committee and Advisory Panel. The
revised draft analysis was sent out for public review on September 6,
1994, and presented to the Council at its September 1994 meeting.
The draft EA/RIR/IRFA explained current methods to estimate catch
weight by species for all processor and catcher vessel types, and the
potential problems with each method. Although NMFS can identify
potential sources of uncertainty with current catch estimation
procedures, NMFS currently is unable to quantify how these sources of
uncertainty affect the accuracy of catch weight estimates.
The draft EA/RIR/IRFA analyzed several alternatives to improve
total catch weight estimates including requirements that (1) trawl
catcher/processors and motherships provide measured, marked, and
certified fish receiving bins to improve observers' volumetric
estimates of catch weight, (2) all processors with 100 percent observer
coverage weigh all catch before processing or discard, (3) all
processors, regardless of observer coverage, weigh all catch, and (4)
all processors and catcher vessels weigh all catch. In addition, the
Council considered an option to require that catch weight be assessed
using any method that would provide estimates within a specified range
of accuracy.
The draft EA/RIR/IRFA stated that the use of scale weights would
not address all of the potential problems identified in the analysis.
Observer species composition sampling would still be applied to the
total catch weight to estimate the weight of each species or species
group in the catch. Although properly designed and maintained marine
scale systems provide the equipment necessary to account accurately for
fish harvested by any vessel or processor type, no security or
monitoring system exists that will guarantee that all fish will be
weighed or that information from the scales will be accurately reported
to NMFS. The observer can provide an important compliance monitoring
role but, even with an observer aboard at all times, compliance cannot
be assured. Observers can periodically test the accuracy of the scale
and monitor use of the scale when they are on duty, but all activities
on vessels that operate round the clock cannot be monitored by one
person.
At its September 1994 meeting, the Council recommended that NMFS
prepare proposed regulations to require all processors participating in
the pollock fisheries to weigh their pollock catch on a scale, rather
than to provide for improved volumetric estimates of total catch
weight. The Council decided to focus initially only on processors
participating in the pollock fisheries for two reasons. First, these
fisheries represent the majority of groundfish catch off Alaska.
Second, the Council expressed the need for parity in the methods used
to estimate catch weight for purposes of the pollock allocations for
processing by the inshore and offshore components.
These proposed regulations do not include additional requirements
on shoreside processing plants because these scales already are
regulated by state weights and measures agencies. NMFS believes that
referencing these requirements or including additional requirements for
shoreside plant scale testing or certification would be redundant.
What Will be Weighed?
Although the Council only specified that pollock was to be weighed,
NMFS is recommending that all catch in the pollock fisheries be
weighed. All catch in the pollock fisheries includes the catch of all
pollock, all other groundfish species, and all nonallocated species. In
other words, all fish and marine invertebrates must be weighed prior to
discard or processing, unless otherwise specified in the regulations
(e.g., prohibited species). For trawl catcher/processors or processor
vessels taking deliveries of unsorted codends, all catch in each haul
or delivery that occurred during a week in which the processor vessel
was participating in the pollock fisheries would have to be weighed
before discard or processing. For processors taking deliveries from
trawl catcher vessels, all fish delivered by a catcher vessel
participating in the pollock fisheries must be weighed before discard
or processing. Operators of trawl catcher vessels could continue to
discard at-sea before they delivered their catch. Processors could sort
catch before weighing if the processors wish to weigh retained catch
separately from discarded catch.
NMFS is considering requiring that all catch in the pollock
fisheries be weighed for two reasons. First, if scales are to be
required on processor vessels, NMFS believes that these scales should
be used to improve estimates of the mortality of all fish and marine
[[Page 6339]]
invertebrates--not just the pollock. Second, this requirement more
closely follows current catch estimation procedures for trawl processor
vessels, which apply observers' species composition sampling data to
total catch weight estimates to estimate the weight of each species in
the catch.
Observers currently use one of two methods to make volumetric-based
estimates of total catch weight--codend volume estimates or bin volume
estimates. For a codend volume estimate, the observer estimates the
volume of fish in the net. For a bin volume estimate, the observer
estimates the volume of fish in one or more of the holding bins into
which fish are dumped from the net. After the volumetric estimate of
catch weight is made, fish are conveyed from the fish holding bins into
the factory. Observers sample unsorted catch as it is being conveyed
out of the bins to estimate the species composition of the total catch.
Almost immediately after the fish are conveyed out of the holding bins,
vessel crew sort retained catch from discards.
The use of an accurate and reliable scale to weigh total catch
would eliminate the need for the observers' volumetric estimates of
total catch weight. However, observers would still need to sample
unsorted catch to estimate the distribution of various species in the
catch, including prohibited species. A requirement to weigh only
pollock rather than total catch would result in the observer continuing
to make volumetric estimates of total catch weight in order to estimate
the weight of all nonpollock species in the catch. In addition, the
requirement to weigh only pollock may add a step to processors'
groundfish sorting, unless they are retaining all pollock and putting
small and damaged fish into a meal plant. Weighing pollock separately
from other groundfish catch would require processors to first sort all
pollock from other groundfish, then weigh the pollock, and then sort
out the pollock to be retained from that to be discarded.
Weighing at Sea
Scales in shoreside plants are regulated by state and local
government agencies, based on national standards established by the
National Conference on Weights and Measures (NCWM) and published by the
U.S. Department of Commerce, National Institute for Standards and
Technology (NIST) in Handbook 44. Handbook 44 includes design, use, and
performance standards for many different weighing and measuring
devices, including several different types of scales. All of the catch
from the BSAI and GOA pollock fisheries landed at a shoreside
processing plant is reported to be landed in Alaska and is regulated by
the Alaska Division of Measurement Standards.
Under Handbook 44 standards, scales in shoreside processing plants
usually must weigh certified test weights to within 0.20 percent of
their known weight. These scales are required to be inspected once or
twice a year, and most scales in large processing plants are inspected
every 6 months. However, scales in smaller processing plants or in
remote locations are often tested less than once a year due to limited
staff and budget resources in the Alaska Division of Measurement
Standards.
Groundfish catch processed at sea is not regulated by any weights
and measures agency for two reasons. First, no commercial transaction
occurs when a catcher/processor catches and processes groundfish.
Second, even in circumstances where a processor vessel is purchasing
catch from an independent catcher vessel in the EEZ, no state or local
government has jurisdiction over this transaction. The only activity on
processor vessels operating in the EEZ that is regulated by a weights
and measures agency is the packaging of processed product by weight
(e.g., a 10-kg box of fillets). Although the scales used to pack the
fish product by weight are not required to be certified, the accuracy
of the net weight indicated on the package label is regulated by the
state in which the fish are landed and sold. In other words, while
operators processor vessels are not required to have certified scales
on board, they are required to report accurate weights on their
packaged products. Testing of packaged product weight by a weights and
measures inspector generally occurs on shore, if it occurs at all.
Obtaining an accurate weight at sea requires a scale that has the
capability to compensate for vessel motion. Marine scales in use, or
proposed for use, use information from two weighing units (or ``load
cells'') to calculate an adjustment factor to apply to the scale weight
of fish to compensate for the effect of vessel motion. However, most
other features of the marine scales are similar to scales of the same
general design, such as belt-conveyor scales or hopper scales, that are
used on land. Handbook 44 includes standards that can be used to
evaluate a marine scale's performance on land, but additional standards
will have to be developed to evaluate the scale's performance at-sea or
in motion. These standards have not yet been developed because, to
date, no marine scale has been used for commercial purposes or within
the jurisdiction of a weights and measures agency.
In December 1993, NMFS hosted a meeting with representatives from
U.S. and international scale manufacturers. These representatives
stated that scales designed to compensate for the effect of vessel
motion could achieve a very high level of accuracy, perhaps to within 1
percent of known weight. Three processor vessels currently have motion
compensated conveyor scales and weigh fish as the fish move along the
conveyor belt between the holding bins and the factory. The same motion
compensation technology currently is used in platform scales used to
weigh packaged product and in roe grading machines.
NMFS believes that a requirement that a scale weigh standard test
weights to within 3 percent of their known weight is achievable under
all circumstances under which sorting and processing of groundfish
would occur. This accuracy level is well within the accuracy standard
recommended by the scale manufacturers and would provide a satisfactory
estimate for fishery management purposes.
A proposed rule to govern the use of scales in the pollock fishery
would include requirements that NMFS believes are necessary to monitor
effectively the use of scales and to assure that accurate information
is being obtained from the scales in the absence of direct oversight by
a weights and measures agency. These requirements are discussed below.
Compliance Monitoring
Processors would be required to notify NMFS as to the type of scale
that would be used on the processor vessel. Notification would include
a written description of the scale system that would be used to weigh
catch and a diagram of the location of the scale or scales on the
processor vessel and the location where the observer would sample
unsorted catch. Notification would be required 6 months prior to
initial installation, major modification, or relocation of a scale. The
purpose of this proposed requirement is to assure that on-board test
procedures for the particular type of scale have been developed by NMFS
in consultation with the scale manufacturer and the weights and
measures agencies. In addition, NMFS-certified observers, U.S. Coast
Guard personnel, NMFS Enforcement officers, and scale inspectors must
be notified in advance of the types of scales they may be expected to
evaluate. Currently, NMFS is proposing test procedures only for belt-
conveyor scales and hopper scales.
[[Page 6340]]
No other type of scale would be approved for use by NMFS until the
appropriate test procedures have been developed and included in NMFS
regulations.
Processors would decide which particular scale or scales to use and
where to install these scales, as long as installation or use of the
scale does not prevent observers from taking random samples of unsorted
catch.
NMFS proposes a monitoring system for scales on-board processor
vessels that would comprise three elements. The first element of the
scale monitoring program would be a one-time approval of each model of
scale under the National Type Evaluation Program (NTEP). NTEP approval
would assure that the scale is constructed and performs in the
laboratory according to standards set forth in Handbook 44. In
addition, the scale would be evaluated under a variety of ``influence
factors,'' such as temperature changes and voltage fluctuations. NTEP
approval would be expected to take between 6 months and 1 year from the
time the scale is submitted to the testing laboratory. No marine scale
has NTEP approval or has been submitted for NTEP approval. NMFS
believes that NTEP approval is an important first step in the
monitoring process, because it would provide an independent assessment
of the performance of the scales against established scale standards
before a particular type of scale is purchased or installed on a
processor vessel. Assuring that only high quality scales are installed
on processor vessels would prevent NMFS and the industry from spending
time or money on evaluating scales that cannot meet minimum standards.
In addition, the State of Alaska would require NTEP approval for
motion-compensated belt-conveyor scales, before they can be certified
for use in shoreside processing plants.
Scale manufacturers would submit their scales for NTEP approval and
provide processors with certification of approval. This certification
must be kept on the processor vessel with the scale and be made
available to the authorized officer. Four laboratories in the United
States are approved by NCWM to provide NTEP certification. The State of
California, Division of Measurement Standards in Sacramento, operates
the NTEP laboratory for the West Coast.
The second element of the monitoring system would be inspection by
a weights and measures inspector of each scale after it is installed on
the processor vessel. The inspection of each scale would be necessary
to assure that the scale is installed properly, the scale weighs
accurately when not in motion, the appropriate on-board test weights
are calibrated, and the vessel crew understands how to perform the on-
board test procedure. The inspection would be based on Handbook 44
standards with two exceptions. First, accuracy standards for the scales
would be specified in NMFS regulations. Second, scales would be
exempted from Handbook 44 requirements for sealed calibration units,
because this requirement would prevent the processor vessel crew from
performing periodic, necessary calibration of the scale at sea.
Belt-conveyor scale systems, or flow scales, would be evaluated
through a ``material test,'' which tests the performance of the scale
while weighing the material (i.e., fish) that it was designed to weigh
in the specific installation. Because the weight reading from a belt-
conveyor scale is a combination of information about the load on the
scale and the speed at which material is passing across the scale,
static testing, or the placement of a test weight on the scale, would
not adequately evaluate the scale's accuracy. The scale must be tested
by running material across the scale to evaluate the effect of the
conveyor belt installation, the loading and unloading of fish from the
scale, the belt speed, and other factors related to the installation of
the scale that may affect its accuracy. Simply running a series of
metal test weights across the scale is not considered an adequate test
of the scale's performance for an annual inspection, because the
material will not flow across the scale in the same way as fish, and
because it would be difficult to supply enough test weights to test the
scale at a capacity similar to its actual use capacity.
Once the scale has passed the material test, a standard test weight
would be certified by the weights and measures inspector. The test
weight would be a flat, stainless steel bar that could be placed on the
scale in contact with the weighing unit of the scale, but not the belt.
It would act as a continuous load on the scale for a 10-minute test
period. The accumulated weight recorded by the scale at the time of the
annual certification would be stamped on the test weight.
The initial inspection by a weights and measures inspector would
require vessel owners to schedule and pay for an inspection by either a
state weights and measures agency (i.e., State of Alaska or State of
Washington inspectors) or a contracted inspector. Officials of the
State of Alaska have notified NMFS that it cannot commit to providing
inspectors at this time due to budget and staff constraints.
Handbook 44 requires that a belt-conveyor scale be tested with an
amount of material equal to the capacity of the scale for 10 minutes.
Flow scales with capacities between 50 metric tons per hour (mt/hr) and
80 mt/hr, would need to be tested with between 8 and 13 mt of fish. The
material test of the flow scale could take a full day and would require
that an appropriate amount of fish and a certified platform or hanging
scale be available at a dockside location for the weights and measures
inspector. Because the tests likely would be done outside of the
commercial fishing seasons, the Council and NMFS would have to make
approximately 500 mt of groundfish available for scale testing. Vessels
owners would have to request authorization from the Director, Alaska
Region, NMFS (Regional Director) to catch the amount of fish needed for
their tests if the tests were performed outside of regular seasons.
The third element of the scale monitoring system would be periodic
testing of each scale using the standard test weight. This element
would be required because the NTEP approval process and the dockside
inspections do not test the scale's performance in motion. It is only
through periodic tests at sea that the efficacy of the ``motion
compensation'' devices can be assessed. The test weight would be placed
on the scale, the scale would run for 10 minutes, and a printed record
of the scale weight would be compared with the number stamped on the
test weight. The scale would be in compliance with these regulations if
the percent difference in the number stamped on the test weight and the
number recorded by the scale was 3 percent or less. As long as the
scale weighed the standard test weight accurately, and absent other
information, NMFS would assume that the scale was continuing to operate
as it did upon successful completion of the initial certification.
The certification and monitoring of hopper scales (similar in
design to those currently used in several shoreside processing plants)
would be much less complicated than belt-conveyor scales. The hopper
scales weigh successive batches of fish rather than a flow of fish. For
the initial certification, a weights and measures inspector would
evaluate the scale using standard, metal test weights in a range of
sizes. No test materials or fish would be required. The on-board test
procedure would involve the use of standard test weights that would
periodically be placed on the scale. A comparison of the known weight
of the test weights with the
[[Page 6341]]
scale's recorded weight at sea would indicate whether the scale was
weighing within the accuracy standard.
As an additional security measure, the scale would be required to
maintain a cumulative record of the number of hours the scale has been
operating and the weight of catch passing over or through the scale.
This record must be permanent and accessible to the scale operator, the
observer, or an authorized officer (read only) but must not be changed
or deleted (no write capability). The purpose of this requirement is to
provide information about the total catch weighed by the scale with the
cumulative reports of catch weight from each haul.
Printed output from the scale on each haul must provide the
following information: Starting date and time of haul, total weight of
catch in each haul, and end date and time of haul. In addition, the
scale must provide a printed record of the scale tests.
Initial Tests of At-sea Scales
One company participating in the 1995 pollock Community Development
Quota (CDQ) fisheries installed two different models of belt-conveyor
scales on two processors. Two observers were aboard each processor
vessel during the CD fisheries, and an additional NMFS staff person was
aboard for about 2 weeks. Observers performed limited material tests on
these scales by weighing 20 baskets of fish (up to 50 kg of fish per
basket) on either a motion-compensated or a beam-balance platform scale
and then on the belt-conveyor scales. Test results were highly
variable, ranging from less than 0.10 percent difference to almost 50
percent difference in weight between the platform and belt-conveyor
scales. The scale on one of the vessels was judged to be improperly
installed, because fish were allowed to fall onto the scale rather than
flow across it. This likely resulted in inaccurate weights. In
addition, the electric motor that drove the conveyor malfunctioned and
was not successfully repaired by vessel crew.
These limited tests of scales on processor vessels illustrate
several important points. The technology to accurately weigh fish
processed at sea exists. However, accurate weight depends on the proper
technology, proper installation of the scale, and the proper use of the
scale. In other words, an improper installation can negate any benefits
of a high quality scale. The proper functioning and installation of the
scale must be verified by a qualified weights and measures official
prior to use in the fishery. In the absence of this evaluation process,
NMFS cannot be assured that accurate weight can be obtained from the
scale. NMFS-certified observers cannot perform ``material tests''
involving weighing a ton of fish on two different scales each day due
to time, space, and energy limitations. In addition, observers are not
trained to determine whether the scale is properly installed or other
technical aspects of the scale installation or operation.
The Number of Processors Affected
In 1994, 66 processor vessels reported as either trawl catcher/
processors or motherships taking deliveries from trawl catcher vessels.
Of these, 45 trawl catcher/processors and three motherships reported
catch in the pelagic or bottom trawl pollock fisheries in the GOA or
BSAI. Each of these 48 processor vessels would be required to provide a
scale system that is capable of weighing catch before it is processed
or discarded. Although these processors could choose to weigh catch in
the other groundfish fisheries in which they participate, they would
not be required to do so.
Cost of the Scale Requirement to Industry
NMFS estimates that each processor vessel would pay about $50,000
for each marine scale. One scale manufacturer estimates that a hopper
scale system in development will cost about $20,000 each. However, this
scale currently is not available for sale, so the price estimate is
uncertain. Installation costs are much more difficult to estimate. Due
to space constraints on many processor vessels, the likely need to
relocate sorting space and processing equipment, the possibility that
more than one scale would be required on some vessels, and the wide
range of configurations on individual vessels, the installation cost
range for the scales could be between $5,000 and $250,000 per vessel.
Therefore, the total cost of purchasing and installing marine scales to
weigh groundfish catch on processor vessels may range between $55,000
and $300,000 per vessel.
A variety of other costs are associated with a requirement for
vessels to install marine scales, including the cost of reduced
efficiency as a result of changes in procedures for harvesting,
sorting, discarding, or processing groundfish. For example, sorting
space may be reduced and processing equipment may have to be moved to
accommodate the scale, possibly reducing the efficiency of the factory.
These costs also will vary among the vessels, depending on factory
configuration. Additional crew time may be required to monitor and
record information from the scale and to test, maintain, and repair the
scale. Finally, vessel operators may choose to purchase spare parts or
a back-up scale depending on the amount of fishing time that could be
lost if the scales break down.
List of Subjects in 50 CFR Parts 672 and 675
Fisheries, Reporting and recordkeeping requirements.
Dated: February 12, 1996.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.
For the reasons set out in the preamble, 50 CFR parts 672 and 675
are proposed to be amended as follows:
PART 672--GROUNDFISH OF THE GULF OF ALASKA
1. The authority citation for part 672 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
2. In Sec. 672.2, the definitions for ``Belt-conveyor scale'' and
``Hopper scale'' are added, in alphabetical order, to read as follows:
Sec. 672.2 Definitions.
* * * * *
Belt-conveyor scale means a device that employs a weighing element
in contact with a belt to sense the weight of the material being
conveyed and the speed (travel) of the material, and integrates these
values to produce total delivered weight.
* * * * *
Hopper scale means a scale designed for weighing bulk commodities
whose load-receiving element is a tank, box, or hopper mounted on a
weighing element. The scale may be adapted to the automatic weighing of
bulk commodities in successive drafts of predetermined amounts.
* * * * *
3. In Sec. 672.24, paragraph (g) is added to read as follows:
Sec. 672.24 Gear limitations.
* * * * *
(g) Weighing catch in the pollock fisheries in the EEZ--(1)
Applicability. Processor vessels participating in the pollock fisheries
in the EEZ must weigh all catch on a scale that meets the requirements
of this paragraph. A processor vessel is participating in the pollock
fisheries if directed fishing for pollock is not prohibited and if,
during any weekly reporting period, the round weight equivalent amount
of retained pollock is greater than the round weight equivalent amount
of any other retained groundfish species or species groups for
[[Page 6342]]
which a TAC has been specified under Sec. 672.20 or Sec. 675.20.
(2) Required equipment. (i) The processor vessel must provide a
scale or scale system, a printer capable of providing printed output
from the scale or scale system, and the appropriate standard test
weights as described in paragraphs (g)(3)(ii)(A) and (B) of this
section. Only belt-conveyor scales and hopper scales as defined at
Sec. 672.2 and meeting the certification and use requirements of this
paragraph (g) are authorized for use.
(ii) Installation. The scale or scale system must be installed in
the conveyor belt system that carries fish from fish holding bins to
either processing equipment or a discard chute. The location or use of
the scale or scales must not prevent the observer from sampling
unsorted catch.
(iii) Notification of proposed scale system. Processor vessel
operators must provide the Regional Director with a written description
of the scale system that will be used to weigh catch, including: The
name, manufacturer, and model number of the scale or scales; a diagram
of the location of the scale or scales on the processor vessel; and the
location where observers will obtain samples of unsorted catch. This
notification is required only prior to initial installation, major
modification, or relocation of a scale and must be received by the
Regional Director 6 months prior to using the scale to meet the
requirements of this paragraph.
(3) Scale certification. Each scale used to weigh catch under this
paragraph (g) must meet the requirements of the following three-part
scale certification process:
(i) National Type Evaluation Program Certificate of Conformance.
The particular model of scale must be certified under the National Type
Evaluation Program of the National Conference on Weights and Measures.
Application forms may be obtained from the National Institute for
Standards and Technology (NIST), Office of Weights and Measures,
Building 820, Room 223, Gaithersburg, MD 20899-0000. A copy of the
certificate of conformance for each model of scale must be maintained
on board the processor vessel at all times.
(ii) Initial installation or modification inspection. Each scale or
scale system must be tested and certified by an authorized weights and
measures inspector upon initial installation, after major modification
or installation of the scale at a different location on the vessel, or
at the request of the Regional Director. Scales will be tested in
accordance with the National Institute of Standards and Technology
(NIST) Handbook 44, ``Specifications, Tolerances, and Other Technical
Requirements for Weighing and Measuring Devices'', 1995 edition adopted
by the 79th National Conference on Weights and Measures, which are
incorporated by reference, with the exceptions listed in paragraphs
(g)(3)(ii)(A) and (B) of this section. Copies of Handbook 44 may be
obtained from the National Institute for Standards and Technology,
Office of Weights and Measures, Building 820, Room 223, Gaithersburg,
MD 20899-0000. Copies may be inspected at the NMFS Alaska Regional
Office. Written certification must be provided to the Regional Director
prior to January 1 of each year and a copy must be maintained on board
the processor vessel at all times. A certification signed by the
authorized weights and measures inspector must identify the vessel
name, scale model, and date of test; and certify that the scale or
scale system meets the standards specified for either belt-conveyor
scale systems or hopper scales, with the following additional
requirements or exceptions.
(A) Belt-conveyor scale systems. Belt-conveyor scales are not
required to meet Handbook 44 provisions for sealing in section 2.21,
paragraphs S.1.7, S.2.2, and UR.1.2. Certification of a belt-conveyor
scale requires accurate weighing of fish as determined by a material
test followed by calibration of a standard test weight to be used in on
board tests of the scale under paragraph (g)(3)(iii) of this section.
(1) Material test. An official test of a belt-conveyor scale system
is a material test. The material test must be performed with fish that
have been preweighed on the day of the material test on a scale
approved by the authorized weights and measures inspector. The scale
used to preweigh fish must be tested by the authorized weights and
measures inspector immediately prior to running the material test. The
weight of fish used in the material test must be equal to the full
capacity of the scale operating for 10 minutes. The belt-conveyor scale
must weigh the fish to within 1 percent of the weight determined
through preweighing.
(2) Standard test weight. The processor vessel must provide a
stainless steel bar that fits on the carriage of the scale to be used
as a standard test weight for on-board scale testing. Calibration of
the standard test weight by the weights and measures inspector must be
referenced to the results of the material test. The serial number of
the scale and the target weight after a 10-minute simulated load test
must be stamped on the standard test weight upon successful completion
of the material test. The standard test weight must be retained on
board the vessel at all times while the processor vessel is
participating in the pollock fisheries.
(B) Hopper scales. Hopper scales are not required to meet Handbook
44 provisions for sealing in section 2.20 paragraph S.1.11. An official
test of a hopper scale system is an increasing-load and decreasing-load
test using certified standard test weights provided by the authorized
weights and measures inspector and used according to procedures
specified in Handbook 44. In addition, a set of standard test weights
must be provided by the processor vessel to be used for on-board scale
testing. The standard test weights must be stainless steel, must not
exceed 10 kg each or 50 kg in total, and must be stamped with the
serial number of the scale and the certified weight of the standard.
The standard test weight must be retained on board the vessel at all
times while the processor vessel is participating in the pollock
fisheries.
(iii) On-board tests of scale performance. The NMFS certified
observer or any other authorized officer may perform, or witness vessel
crew performing, a test of the scale's performance at any time. The
procedure for testing a scale's performance must be based on the use of
a standard test weight or weights certified by an authorized weights
and measures inspector as described in paragraphs (g)(3)(ii)(A) and (B)
of this section. The standard test weights must be placed on, in, or
across the weighing element of the scale while the scale is operating.
The scale must record the weight of the certified test weight to within
3 percent of its certified weight as calculated by subtracting the
scale weight from the known weight of the test weights, dividing this
difference by the scale weight, and multiplying by 100 [-3.0 <=
(((certified weight-scale weight)/scale weight)*100) <= 3.0]. The
vessel operator must provide the observer with a printed record of the
known weight of the certified test weights and the weight recorded by
the scale for each test and a printed record of any adjustments to or
calibrations of the scale.
(4) Printed reports from the scale. Printed reports from the scale
must be maintained on board the processor vessel and be made available
to observers and other authorized officers at any time during the
current calendar year. Reports must be printed at least once each 24-
hour period in which the scale is being used to weigh catch or
[[Page 6343]]
before any information stored in the scale computer memory is replaced.
A printed report must include the following information for each haul:
The haul number; month, day, year, and time (to the nearest minute)
weighing catch from the haul started; month, day, year, and time (to
the nearest minute) weighing catch from the haul ended; and the total
cumulative weight of catch in the haul for each haul brought on board
the vessel. Scale weights may not be adjusted for the weight of water.
The haul number recorded on the scale print-out must correspond with
haul numbers recorded in the processor's daily cumulative production
logbook. A printed report of any tests, adjustments, calibrations, or
other procedures performed on the scale including month, day, year, and
time (to the nearest minute) of procedure, name or description of
procedure, result of procedure also must be provided. All printed
output from the scale must be signed by the operator of the processor
vessel.
(5) The scale system must record the cumulative number of hours in
operation and the cumulative weight recorded by the scale in a format
that cannot be edited or erased and that is accessible to the scale
operator at any time. This information must be provided in printed form
at any time at the request of an observer or other authorized officer.
PART 675--GROUNDFISH OF THE BERING SEA AND ALEUTIAN ISLANDS AREA
4. The authority citation for part 675 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
5. In Sec. 675.24, paragraph (h) is added to read as follows:
Sec. 675.24 Gear limitations.
* * * * *
(h) Weighing catch harvested in the pollock fisheries. Requirements
are set out at Sec. 672.24(g).
[FR Doc. 96-3553 Filed 2-16-96; 8:45 am]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-3122 Promotion and Internal Placement; Accelerated Qualifications
[Federal Register Volume 61, Number 34 (Tuesday, February 20, 1996)]
[Proposed Rules]
[Pages 6324-6328]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3122]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 61, No. 34 / Tuesday, February 20, 1996 /
Proposed Rules
[[Page 6324]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Parts 316, 335, and 338
RIN 3206-AG19
Promotion and Internal Placement; Accelerated Qualifications
AGENCY: Office of Personnel Management.
ACTION: Proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Office of Personnel Management (OPM) proposes to revise
the Federal merit promotion program to give agencies greater
flexibility to design internal merit selection procedures consistent
with merit principles and other applicable laws, to assign employees to
other positions appropriate to the appointments, and to utilize
intensive training programs for employees to acquire qualifications at
an accelerated rate. These changes are consistent with recommendations
of the National Performance Review.
DATES: Comments must be submitted on or before April 22, 1996.
ADDRESSES: Send or deliver written comments to Leonard R. Klein,
Associate Director of Employment, Office of Personnel Management, Room
6F08, 1900 E Street NW., Washington, DC 20415 (FAX 202-606-2329).
FOR FURTHER INFORMATION CONTACT:
Lee Edwards on 202-606-0830, TDD 202-606-0023, or FAX 202-606-2329.
SUPPLEMENTARY INFORMATION: The National Performance Review (NPR)
recommended changes in the way the Government operates. Consistent with
the NPR recommendations, these proposals would streamline regulations
to give agencies more authority to design internal merit selection
procedures (merit promotion plans), assign employees to other
positions, and utilize intensive training programs for employees to
acquire qualifications at an accelerated rate. These proposals would
revise the current merit promotion program requirements in 5 CFR part
335 published in the Federal Register on December 29, 1994 (59 FR
67121) and effective on January 1, 1995.
Merit Promotion Program
A continuing thread throughout the history of the merit promotion
program has been the balancing of merit considerations and uniformity
with agency need for flexibility to tailor programs to meet their
organizational needs. Up to the 1950's, agencies could promote any
employee who met minimum qualification standards. In 1950, agencies
received a set of basic principles to observe in their promotion
programs but still retained much latitude.
In 1959, the first real Federal Merit Promotion Program was
established in response to employee, Presidential, and Congressional
concerns over the limited use of systematic means of selection. For the
first time, agencies were required to have specific promotion plans for
the systematic and competitive consideration of employees for
promotion. But the program continued to give agencies the flexibility
to design programs to meet their needs.
In 1969, the program underwent a major revision to assure equitable
consideration of qualified employees and selection of the most able,
and to strengthen employee confidence in the fairness of the program.
At that point, very detailed requirements were introduced concerning
such matters as areas of consideration, methods of locating candidates,
use of supervisory performance appraisals, evaluation methods to
determine the best-qualified candidates, limits on use of written
tests, limits on the number of best-qualified candidates that could be
referred for selection, and training requirements for new supervisors.
In 1973, OPM began the process of easing back on such detailed
requirements by providing more room for collective bargaining. Then in
1979, agencies were given broad authority to develop, negotiate, and
manage their own promotion programs. Adoption of the revised program
coincided with implementation of the Civil Service Reform Act of 1978,
which expanded delegation of personnel authority to agencies and
broadened the scope of collective bargaining. In this current proposal,
OPM would continue to move in the same direction by further relaxing
OPM detailed requirements but emphasizing the statutory platform
underpinning agency merit staffing programs.
Several of the earlier program revisions were undertaken to
emphasize the need for open competition and selection from among the
best-qualified applicants. Those same principles are at the heart of
this proposal, with the intent to foster and environment in which
agencies feel free to develop different approaches to satisfy these
merit considerations. Whether justified or not, some agencies feel
OPM's guidance has boxed them into a set way of filling positions. The
process has created delays in filling jobs and often is very labor and
paper intensive, resulting in a lack of confidence in the system by
both managers and employees.
While speed and efficiency in filling positions are critical to
effective operations, the process must also be in accord with merit
principles. One suggestion has been to allow managers to promote their
``logical'' candidates or anyone having an exceptional performance
rating and dispense with open competition and comparison with other
candidates. Not only does that proposal conflict with merit principles,
but it is the very type of action that led to widespread complaints and
subsequent adoption of the first set of program requirements in 1959.
This proposal is not intended to return agencies to the loose
policies of that earlier era nor to sacrifice principles of merit and
open competition. Instead, by eliminating most OPM operational
requirements, we hope to encourage agencies to be more creative in
developing legal practices appropriate to their unique needs, resulting
in more timely promotions and greater confidence of managers and
employees that deserving employees are promoted. Agencies, for example,
could design their programs around unique needs, try different
evaluation techniques, use automated systems, use a variety of ways to
satisfy open competition, and involve managers in the process more.
Furthermore, while some problems with the system are due to OPM
requirements, others flow from agency rules. OPM hopes that this
proposal would also generate agency initiatives to review and eliminate
procedural burdens unrelated to merit and open competition.
[[Page 6325]]
Following is a discussion of each proposed regulation section.
Section 335.102
Agencies must continue to adopt promotion plans that provide for
systematic and competitive selection from among the best-qualified
candidates, based on job-related criteria, after fair and open
competition. Agencies would consult or negotiate, as appropriate, with
employees and unions in developing policies and practices that are
accepted as fair and result in selections of the best-qualified
candidates.
The foundation of agency promotion plans would be existing laws.
Some of the major laws are:.
--Merit system principles, which include equal employment opportunity
(5 U.S.C. 2301).
--Prohibited personnel practices (5 U.S.C. 2302).
--Reporting of certain job announcements to OPM (5 U.S.C. 3329) as
implemented by 5 CFR 335.105.
--Consideration of employees absent because of military duty (38 U.S.C.
chapter 43), compensable injury that does not exceed 1 year (5 U.S.C.
8151), or service with international organizations (5 U.S.C. 3582).
--Due weight for incentive awards (5 U.S.C. 3362).
--Results of performance appraisals (5 U.S.C. 4302).
--Minimum qualification requirements (5 U.S.C. 5105 and 16 U.S.C. 470h-
4).
--Management's right to select or not select from among properly ranked
and certified candidates and to select from other appropriate sources
of candidates (5 U.S.C. 7106 and 5 CFR 7.1).
--Employment practices (including job analysis) and antidiscrimination
policy (5 U.S.C. 7201-7204) as implemented by 5 CFR Part 300, Subpart
A, and Part 720.
These laws are incorporated into a framework of seven requirements
contained in revised Sec. 335.102
Requirement 1 would require agencies to adopt merit staffing plans
for selecting employees for advancement based solely on relative
ability, knowledge, and skills after fair and open competition which
assures that all receive equal opportunity. Agencies would be required
to assure that promotion practices conform to the merit system
principles. Agency accountability mechanisms, as recommended by the
NPR, would appropriately contain a human resource management
accountability component, including actions under merit staffing plans.
To assist agencies in this effort, OPM is offering agencies training in
the merit system principles and assistance in refocusing their
accountability efforts on the principles.
Requirement 2 deals with competition requirements. At present, part
335 lists promotions and six other actions that must be competitive and
six actions that agencies may except from competition. Over the last
several years, OPM made several changes in these exceptions. For
example, employees who accept voluntary downgrades are no longer
required by OPM rules to compete to regain their former grade levels.
Many employees are being encouraged to change jobs voluntarily to avoid
reduction in force situations, and this change eliminated a barrier
that discouraged career transitions.
The need for revisions and the rapidly changing circumstances
brought about by widespread reorganizations and downsizing have
convinced us that OPM no longer should specify very detailed coverage
and exceptions. Agencies need the flexibility to respond to changing
needs without seeking waivers or regulatory changes. At the same time,
employees need assurance that merit is the focus of promotion programs.
This proposal would continue to require competition for positions
at higher grades or with greater advancement potential than an employee
previously held. Agencies could continue to select employees
competitively for a training opportunity that results in placement in a
target position.
This proposal would continue to provide for the noncompetitive
promotion of employees whose position are upgraded to correct a
classification error or implement a new classification standard. The
exclusion of reduction in force actions also would remain unchanged.
As under the current program, agencies could except actions from
competition where an employee previously held an equivalent position.
Actions for brief periods could be excepted from competition, but the
agency rather than OPM would determine the cut-off point for
competition. Agencies could continue noncompetitive promotions for job
reclassifications due to accretion of higher grade duties, but the
higher grade position would have to absorb the duties of the old
position.
Where agencies fill positions below the performance grade level,
they could continue to provide for noncompetitive career ladder
promotions. In addition, the proposal expands on the career ladder
concept by adding the flexibility to permit noncompetitive movement to
any position within an occupational group with a career ladder that
does not exceed the journey level for that occupation.
While traditional career ladders have several advantages for both
employee and manager, they focus entirely on individual positions and
not on career fields or broad occupational needs of the agency.
Employees selected under the same competitive process for employment in
the same occupational grouping often are assigned to positions having
different career ladders, or full performance levels. As a result, some
employees in similar positions have to compete further for the same
level of advancement that others receive noncompetitively.
Under this proposal, agencies could move employees noncompetitively
within an occupational group to similar positions with a higher full
performance level that does not exceed the journey level for most
positions in that occupational group. Competition would be required for
assignment to positions above the journey level.
The agency would determine journey levels on the basis of job
classification standards. Journey level is the nonsupervisory full
performance grade level at which most positions in that occupational
grouping under the first level of supervision could be classified. The
agency also would determine occupational groupings of similar or
closely related positions based on position classified and
qualification standards. An occupational grouping might include all
positions in an occupational family, such as all positions in the GS-
200 family. Or, the agency might set more limited groupings, such as
all positions in the GS-235 series, or even more narrow.
Use of this option could expand placement opportunities for surplus
employees as well as meet broader occupational needs of the agency.
Finally, this proposal would delegate to agencies the authority to
adopt other exceptions in their merit staffing plans when they
determine the actions would be consistent with the spirit and intent of
merit principles. The exceptions must be made a part of an agency's
merit staffing plan.
Requirement 3 continues existing requirements concerning
recruitment and job announcements.
Requirement 4 addresses evaluation procedures. An issue that
continues to arise is whether different procedures
[[Page 6326]]
may be used on the number of applicants. This proposal requires that
selection be from among the best-qualified candidates, without any
reference to numbers. Identification of the best qualified requires a
qualitative review, either by the selecting official or others. This
proposal does not specify how the agency determines which applicants
are the best qualified, except to require that the evaluation be based
on job-related requirements and be applied fairly and consistently.
Within these parameters, each agency would determined the specific job-
related evaluation procedure to use.
Examples of abbreviated processes that some agencies use to
identify the best-qualified candidates from among small numbers of
applicants: a selecting official distinguishes the best-qualified
candidates based on a key knowledge, skill, or ability, and selects
from that group; a subject matter expert certifies that the referred
candidates are the best qualified based on job-related criteria.
Requirement 5 covers existing management selection options.
Requirement 6 covers complaints and corrective actions. The
existing part 335 allows employee complaints under appropriate
grievance procedures except that an employee may not grieve
nonselection from among a group of properly ranked and certified
candidates. We have continued that policy in this proposal.
An agency would be required to take corrective action where a
violation of law, regulation, or agency plan has occurred. OPM plans to
develop nonregulatory guidance to assist agencies in taking corrective
action.
Requirement 7 continues existing recordkeeping requirements.
Section 335.103
Revised Sec. 335.103 contains a provision that would enable an
agency to request OPM approval to adopt policies different from those
in 5 CFR part 335 if not in conflict with law. Individual agency
programs or occupations may be unique or highly specialized, justifying
a different approach. For example, an agency might wish to experiment
with alternative dispute resolution techniques, instead of grievance
procedures, to settle complaints about promotion actions. Also,
agencies might seek exceptions for pilot programs under the Government
Performance and Results Act (Pub. L. 103-62, August 3, 1993) to improve
the management and efficiency of agency programs. In no circumstance,
however, could the merit system principles, prohibited personnel
practices, or other requirements of law be waived.
Section 335.104
The current Sec. 335.104 sets minimum performance requirements for
noncompetitive career ladder promotions. These promotions should rest
on high performance levels, but OPM believes eligibility requirements
are an appropriate agency responsibility (beyond existing OPM
requirements such as qualification standards). Furthermore, the level
of performance to be met is only one of several factors, such as the
range of skills to be acquired, the existence of higher level work, and
sufficient funds, that an agency might wish to address. We propose to
delete Sec. 335.104 and instead provide in Sec. 335.102 that agencies
will establish requirements for noncompetitive promotions.
Agency Authority To Promote, Demote, or Reassign
Inherent in the agency power to appoint employees is the power to
assign employees to other duties, consistent with any applicable law (5
U.S.C. 301). However, the current 5 CFR 335.102 limits the extent to
which agencies may promote, demote, or reassign certain employees in
the competitive service.
OPM proposes to eliminate these restrictions and authorize agencies
in revised Sec. 335.101 to move employees to other positions consistent
with the appointments under which the employees serve. The proposed
change would enable agencies to utilize employees in other positions
where needed and for employees to seek other opportunities. This action
would primarily benefit employees under temporary appointment pending
establishment of a register (TAPER). Other provisions would continue to
apply, such as competition provisions of Sec. 335.102, the reduction in
force retention rights in 5 U.S.C. chapter 35, and the procedural
protections and appeal rights relating to performance based and adverse
actions under 5 U.S.C. chapters 43 and 75.
Vacancy Announcements
This is a reminder that Sec. 335.105 implements 5 U.S.C. 3330,
which requires that information be given to the public about certain
job vacancy announcements. In addition, OPM has issued career
transition assistance requirements in part 330, under which agencies
must notify OPM of competitive service vacancies to be filled for more
than 90 days when applications will be accepted from outside an
agency's own work force.
Accelerated Qualifications
The former Federal Personnel Manual authorized agencies to
establish training agreements under which employees could acquire
qualifications for a higher grade position at an accelerated rate.
These intensive training programs are traditionally used for critical
shortage occupations at entry levels where employees are given
accelerated training to obtain the necessary skills more quickly. The
programs provide a valuable recruitment incentive in filling positions
where qualified applicants are in extremely short supply.
To establish continuing agency authority for employees to acquire
qualifications at an accelerated rate under intensive training
programs, OPM proposes to add such authority to part 338. Related to
this, 5 CFR 300.603(b)(6) prohibits more than two promotions in any 52-
week period on the basis of a training agreement and requires OPM
approval of a training agreement that provides for consecutive
promotions in less than 1 year. (OPM proposed to abolish the year-in-
grade waiting period [59 FR 30717, June 15, 1994, and 60 FR 2546,
January 10, 1995] but has not acted on the proposal.)
Other Related Actions
Under the current 5 CFR Sec. 335.101(b), generally a position
change does not change an employee's tenure except as shown in
Sec. 316.703, which deals with status quo employees. These are
primarily individuals who fail to qualify for career-conditional
employment when their excepted or nonfederal positions are brought into
the competitive service. They are retained as nonpermanent employees in
tenure group III and are called status quo employees.
Section 316.703 requires agencies to change status quo employees to
a different type of nonpermanent appointment in tenure group III when
changing the employee to a different position. If the agency moves the
employee back to the original position, it must change the employee
back to status quo.
We propose to eliminate Sec. 316.703 as unnecessary. This would
mean that a status quo employee would remain under a status quo
appointment regardless of any position change. The employee would not
gain or lose any benefits by the elimination of Sec. 316.703.
Another exception to the general rule that tenure is not affected
by a position change is contained in Sec. 335.101(c). This provides
that a career-conditional employee becomes a career employee when
promoted, demoted, or reassigned
[[Page 6327]]
to a position paid under chapter 45 of title 39, United States Code,
which covers the Postal Service. This reference to title 39 positions
is obsolete because the Postal Service was removed from the competitive
service in 1971 by legislation. Since then, the Postal Service has
operated under its own independent excepted service personnel system.
Because these OPM regulations on competitive service appointments no
longer apply to the Postal Service, we are eliminating the obsolete
references in revised Sec. 335.101(c) to positions paid under title 39.
Regulatory Flexibility Act
I certify that these regulations will not have a significant
economic impact on a substantial number of small entities because they
pertain only to Federal employees and agencies.
List of Subjects in 5 CFR Parts 316, 335, and 338
Government employees.
Office of Personnel Management.
James B. King,
Director.
Accordingly, OPM proposes to amend parts 316, 335, and 338 of title
5, Code of Federal Regulations, as follows:
PART 316--TEMPORARY AND TERM EMPLOYMENT
1. The authority citation for part 316 is revised to read as
follows:
Authority: 5 U.S.C. 3301, 3302; E.O. 10577, 3 CFR 1954-1958
Comp., p. 218. Sections 316.302 and 316.402 also issued under 5
U.S.C. 3112 and 3304(c), 22 U.S.C. 2506, 38 U.S.C. 2014, and E.O.
12721.
Sec. 316.703 [Removed]
2. Section 316.703 is removed.
PART 335--PROMOTION AND INTERNAL PLACEMENT
3. The authority citation for part 335 is revised to read as
follows:
Authority: 5 U.S.C. 3301, 3302, 3330; E.O. 10577, 3 CFR 1954-58
Comp., p. 218.
Sec. 335.104 [Removed and reserved]
4. Sections 335.101, 335.102, and 335.103 are revised and
Sec. 335.104 is removed and reserved, to read as follows:
Sec. 335.101 Position changes.
(a) Consistent with Sec. 335.102 and, when applicable, part 319 of
this chapter, an agency head is authorized to promote, demote, or
reassign an employee to any competitive service position appropriate to
the type of appointment under which the employee serves and consistent
with all applicable statutory and regulatory requirements.
(b) The authority in this section includes time-limited promotion
for a definite period. The return of an employee at any time to the
position from which temporarily promoted, or a position of equivalent
grade and pay, is not subject to the procedures in parts 351, 432, or
752 of this chapter if the agency had given the employee advance
written notice of the conditions of the time-limited promotion.
(c) This section covers all types of appointments in the
competitive service except temporary appointments not to exceed 1 year
authorized by subpart D of part 316 of this chapter.
(d) A position change does not change an employee's competitive
status or tenure except that:
(1) A career-conditional employee who is promoted, demoted, or
reassigned to a position required by law to be filled on a permanent
basis becomes a career employee; and
(2) A career employee who is promoted, demoted, or reassigned from
a position required by law to be filled on a permanent basis becomes a
career-conditional employees unless he or she has completed the service
requirement for career tenure in Sec. 315.201 of this chapter.
Sec. 335.102 Internal merit selection programs.
An agency head may promote, demote, and reassign competitive
service employees in accordance with Sec. 335.101, detail them in
accordance with Sec. 300.301 of this chapter, and reinstate and
transfer individuals in accordance with part 315 of this chapter, only
to positions for which the agency is administering a merit-based
selection program that ensures a systematic means of competitive
selection from among the best-qualified candidates available. These
programs shall conform with all applicable law, including the following
requirements.
(a) Requirement 1. Each agency must establish a merit staffing
plan(s) for selecting employees for advancement base solely on relative
ability, knowledge, and skills after fair and open competition which
assures that all receive equal opportunity. The plans must be available
in writing and list exceptions to competition. All actions are subject
to the merit system principles of 5 U.S.C. 2301 and the prohibited
personnel practices of 5 U.S.C. 2302. (5 U.S.C. 2301, 2302, 3301, 3341,
and 3361)
(b) Requirement 2. (1) Competition is required in assignment or
detail, for other than a limited specified period, to a position at a
higher grade or with a higher full performance grade level than an
employee previously held on a permanent basis. Selection requirements
for training are defined in part 410 of this chapter.
(2) Competition does not apply to reduction in force actions under
part 351 of this chapter, and to the upgrading of a position without
significant change in an employee's duties and responsibilities due to
issuance of a new classification standard or correction of an initial
classification error.
(3) An agency may except (and must document in its merit staffing
plan) other types of actions from competition that it determines are
consistent with the spirit and intent of merit principles, including:
(i) Movement within the same occupational grouping from one
position to another position that has a higher full performance grade
level but does not exceed the established journey level of that
occupational grouping. Journey level is the nonsupervisory full
performance grade level at which most positions in that occupational
grouping under the first level of supervision could be classified, as
determined by the agency (or component) based on position
classification standards. Occupational grouping is a group of similar
or closely related positions, as determined by the agency (or
component) based on position classification and qualification
standards; and
(ii) The upgrading of an employee's position due to accretion of
additional higher grade duties and responsibilities where the successor
position absorbs the old position.
(4) A noncompetitive action under this part may be based on a
previously held excepted service position only when held under another
merit system with which OPM has an interchange agreement approved under
Sec. 6.7 of this chapter. A Senior Executive Service career appointee
who is eligible for reinstatement under Sec. 315.401 of this chapter
may be noncompetitively reinstated or assigned to any position or grade
in the competitive service for which qualified. Agencies are authorized
to establish eligibility criteria for noncompetitive promotions.
(c) Requirement 3. Recruitment methods should be designed to
attract qualified individuals from appropriate sources in an endeavor
to achieve a diverse work force that represents all segments of
society, including persons with disabilities. The area of recruitment
should be sufficiently broad to attract quality candidates. Procedures
must provide for consideration of
[[Page 6328]]
employees absent because of military duty, compensable injury that does
not exceed 1 year, and service with international organizations,
individuals on a re-employment priority list, and for any other reasons
required by law or regulation or determined by the agency. Agencies
must give advance notice to OPM of all competitive service positions to
be filled for more than 90 days when applications will be accepted from
an outside agency's own work force (5 U.S.C. 2301, 2302, 3330,
3402(a)(1)(A), 3582, 7201-7204, and 8151; 38 U.S.C. chapter 43; 5 CFR
Sec. 330.102, Sec. 330.706, Sec. 335.105, and part 720).
(d) Requirement 4. To be eligible for placement, a candidate must
meet an appropriate provision of the applicable OPM qualification
manual and any other legal requirements that apply. Evaluation criteria
must be based on the requirements of the job to be filled and applied
in a fair and consistent manner. In qualification and selection
decisions, due weight, as determined by the agency, shall be given to
performance appraisals and to any incentive awards or other performance
recognition received by applicants. Competitive selection must be from
among the best-qualified available candidates. The agency may determine
how to identify the best-qualified candidates, but that identification
may not be waived (5 U.S.C. 2301, 3301, 3362, 4302, and 5105; 16 U.S.C.
470h-4; 5 CFR part 300, subpart A).
(e) Requirement 5. Agency procedures must provide for management's
right to select or not select from among properly ranked and certified
candidates and to select from other appropriate sources of candidates
(5 U.S.C. 7106; 5 CFR part 7.1).
(f) Requirement 6. An individual may seek redress, under applicable
procedures, of a complaint relating to a promotion decision or action
other than nonselection from a group of properly ranked and certified
candidates. There is no right of appeal to OPM of individual promotion
actions. An agency must take appropriate action to correct violations
of the agency's merit selection procedures identified through
grievances or any other means and shall follow OPM instructions
concerning violations of statute of OPM regulation (5 U.S.C. 1103,
1104, and 7121; 5 CFR part 5).
(g) Requirement 7. Each agency shall maintain a record of each
competitive action sufficient to allow reconstruction. These records
may be destroyed after 2 years or after OPM has evaluated the program,
whichever comes first, if the time limit for complaints has expired.
The basis for each noncompetitive promotion must be documented on the
personnel action (5 U.S.C. 1103 and 1104; 5 CFR part 5).
Sec. 335.103 Exceptions.
At the request of an agency head, OPM may approve an exception to
any provision in this part when the exception is consistent with
applicable statutory provisions and would enable the agency to address
more effectively a specific agency need in the administration of merit
staffing programs.
PART 338--QUALIFICATION REQUIREMENTS (GENERAL)
5. The authority citation for part 338 continues to read as
follows:
Authority: 5 U.S.C. 3301, 3302; E.O. 10577, 3 CFR 1954-1958
Comp., p. 218.
6. Subpart C consisting of Sec. 338.301 is added to read as
follows:
Subpart C--Accelerated Qualifications
Sec. 338.301 Accelerated qualifications through intensive training
programs.
Agencies are authorized to establish training programs that provide
intensive and directly job-related training to employees selected in
accordance with parts 335 and 410 of this chapter. Such training may be
substituted for all or part of the experience required by an OPM
qualification standard. Agencies are not authorized to substitute such
intensive training for minimum educational requirements established by
OPM, or for licensing, certification, or other specific credentials
required by OPM qualification standards.
[FR Doc. 96-3122 Filed 2-16-96; 8:45 a.m.]
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