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]

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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.

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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]

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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.

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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.]
BILLING CODE 6325-01-M

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