Pages 9589±9898 Vol. 61 3±11±96 No. 48 federal register March 11,1996 Monday this issue. Raleigh, NC,seeannouncementontheinsidecoverof For informationonbriefingsinWashington,DCand Briefings onHowToUsetheFederalRegister 1 II Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996

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2 III

Contents Federal Register Vol. 61, No. 48

Monday, March 11, 1996

Agency for Toxic Substances and Disease Registry Defense Logistics Agency NOTICES NOTICES Organization, functions, and authority delegations: Privacy Act: Agency for Toxic Substances and Disease Registry, 9710 Computer matching programs, 9680–9681

Agricultural Marketing Service Education Department RULES NOTICES Agricultural commodities; U.S. grade standards and other Grants and cooperative agreements; availability, etc.: selected regulations; removal from CFR; Federal Indian education programs— regulatory reform; comment period extension, 9589– Tribally controlled postsecondary vocational 9590 institutions program, 9864–9884 PROPOSED RULES Individuals with disabilities— Fruits, vegetables, and other products, processed: Closing date; correction, 9682 Inspection, certification, and standards for schedule, Projects With Industry program; waiver, 9682–9683 9654–9655 Employment and Training Administration Agriculture Department NOTICES See Agricultural Marketing Service Adjustment assistance: See Food Safety and Inspection Service Douglas County, Inc., 9721–9722 See Forest Service Grants and cooperative agreements; availability, etc.: See Grain Inspection, Packers and Stockyards Job Training Partnership Act— Administration Title III high wage job opportunities for dislocated workers demonstration program, 9722–9733 Army Department Unemployment compensation: See Engineers Corps NOTICES Ex-servicemembers; renumeration schedules, 9734 Environmental statements; availability, etc.: Energy Department Base realignment and closure— See Federal Energy Regulatory Commission Tooele Army Depot, UT, 9680 NOTICES Centers for Disease Control and Prevention Environmental statements; availability, etc.: Stockpile stewardship and management program, 9683– NOTICES Meetings: 9685 Public Health Service Activities and Research at DOE Engineers Corps Sites Citizens Advisory Committee, 9710–9711 NOTICES Commerce Department Environmental statements; notice of intent: See Foreign-Trade Zones Board Hinton, WV; Bluestone Dam safety assurance program, See International Trade Administration 9681–9682 See National Oceanic and Atmospheric Administration Environmental Protection Agency Commission of Fine Arts RULES NOTICES Air quality implementation plans; approval and Meetings, 9734 promulgation; various States: Missouri, 9642–9644 Commodity Futures Trading Commission Ohio, 9644–9646 NOTICES Wisconsin, 9639–9642 Contract market proposals: Water programs: Chicago Mercantile Exchange— Oil discharge program; Federal regulatory review, 9646– Globex foreign exchange facility; establishment, 9678– 9648 9680 PROPOSED RULES Air programs: Customs Service State operating permit programs— RULES Tennessee, 9661–9670 Organizations and functions; field organization, ports of Air quality implementation plans; approval and entry, etc.: promulgation; various States: International Criminal Police Organization; port of entry Missouri, 9661 designation, 9638–9639 Ohio, 9661 Wisconsin, 9661 Defense Department NOTICES See Army Department Grants, State and local assistance: See Defense Logistics Agency State and tribal environmental programs; performance See Engineers Corps partnership grants; interim guidance, 9696–9708 IV Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Contents

Executive Office of the President West Texas Gas, Inc., 9694 See Presidential Documents Wyoming Interstate Co., Ltd., 9694

Federal Aviation Administration Federal Highway Administration RULES NOTICES Air carrier certification and operations: Intelligent Transportation System (ITS) Early Deployment Domestic, flag, supplemental, commuter, and on-demand Planning Program; implementation, 9860–9862 operations; operating requirements; editorial and terminology changes Federal Railroad Administration Correction, 9612–9613 NOTICES Airworthiness directives: Committees; establishment, renewal, termination, etc.: Airbus, 9604–9606 Railroad Safety Advisory Committee, 9740–9741 Boeing, 9601–9604, 9607–9611 Jetstream, 9606–9607 Federal Reserve System Pratt & Whitney, 9599–9601 NOTICES Class E airspace, 9612 Applications, hearings, determinations, etc.: PROPOSED RULES Compass Bancshares, Inc., et al., 9709 Class E airspace, 9655–9659 Mid Am, Inc., et al., 9709–9710

Federal Communications Commission Federal Transit Administration RULES RULES Radio stations; table of assignments: Temporary local match waiver for Sections 9 and 18; CFR Pennsylvania, 9648 part removed, 9650–9651 Television broadcasting: Telecommunications Act of 1996— Fine Arts Commission Sexually explicit adult programming; scrambling or See Commission of Fine Arts blocking, 9648–9650 PROPOSED RULES Fish and Wildlife Service Television broadcasting: RULES Telecommunications Act of 1996— Endangered and threatened species: Sexually explicit adult programming; scrambling or Interim listing priority guidance, 9651–9653 blocking, 9671–9673 NOTICES NOTICES Endangered and threatened species permit applications, Agency information collection activities: 9715–9716 Submission for OMB review; comment request, 9708– Environmental statements; availability, etc.: 9709 Incidental take permits— San Mateo County, CA; mission blue butterfly, etc., Federal Deposit Insurance Corporation 9717–9718 RULES Volusia County, FL; loggerhead sea turtle, etc., 9716– Contractor conflict of interests, 9590–9599 9717 Nonindigenous aquatic nuisance prevention and control: Federal Energy Regulatory Commission Aquatic nuisance species task force; document RULES availability, 9718–9719 Natural gas companies (Natural Gas Act): Rate schedule and tariff changes; filing requirements, Food and Drug Administration 9613–9637 RULES NOTICES Organization, functions, and authority delegations: Electric rate and corporate regulation filings: Deputy Commissioners et al.; correction, 9639 Consolidated Edison Co. of New York, Inc., et al., 9694– NOTICES 9695 Debarment orders: Meetings; Sunshine Act, 9695–9696 Copanos, John D., 9711–9713 Applications, hearings, determinations, etc.: ANR Pipeline Co., 9685–9686 Food Safety and Inspection Service CNG Transmission Corp., 9686 PROPOSED RULES Columbia Gas Transmission Corp., 9686–9687 Federal regulatory review; comment period reopening, 9655 Columbia Gulf Transmission Co., 9687–9688 El Paso Natural Gas Co., 9688 Foreign Claims Settlement Commission Equitrans, L.P., 9688 NOTICES Michigan Gas Storage Co., 9688–9689 Agency information collection activities: National Fuel Gas Supply Corp., 9689 Proposed collection; comment request, 9720–9721 Northern Natural Gas Co., 9689–9690 Meetings; Sunshine Act, 9721 Northwest Pipeline Corp., 9690–9691 Panhandle Eastern Pipe Line Co., 9691 Foreign-Trade Zones Board Southern Natural Gas Co., 9691–9692 NOTICES Tennessee Gas Pipeline Co., 9692 Applications, hearings, determinations, etc.: Texas Eastern Transmission Corp., 9692–9693 Arizona, 9675 Transcontinental Gas Pipe Line Corp., 9693 PETsMART, Inc.; warehouse/distribution facility, Trunkline Gas Co., 9693–9694 9674–9675 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Contents V

Minnesota NOTICES Plastic Products Co., Inc., Facilities; plastic in-line Senior Executive Service: skates, 9675–9676 Performance Review Board; membership, 9721 Missouri, 9676 Land Management Bureau Forest Service NOTICES NOTICES Agency information collection activities: Environmental statements; notice of intent: Proposed collection; comment request, 9719–9720 Beaverhead National Forest et al., MT, 9674 Legal Services Corporation Grain Inspection, Packers and Stockyards Administration NOTICES NOTICES Meetings; Sunshine Act, 9734 Stockyards; posting and deposting: Harrison Stockyard Auction, Inc., AR, et al., 9674 Maritime Administration PROPOSED RULES Health and Human Services Department Cargo preference—U.S. flag vessels: See Agency for Toxic Substances and Disease Registry Available U.S.-flag commercial vessels, 9670–9671 See Centers for Disease Control and Prevention See Food and Drug Administration Mine Safety and Health Administration See National Institutes of Health RULES Coal mine safety and health: Housing and Urban Development Department Underground coal mine ventilation; safety standards, NOTICES 9764–9846 Grants and cooperative agreements; availability, etc.: Community development block grant program— National Credit Union Administration Small cities program; application deadline extension, NOTICES 9714–9715 Meetings; Sunshine Act, 9734

Interior Department National Highway Traffic Safety Administration See Fish and Wildlife Service NOTICES See Land Management Bureau Meetings: See National Park Service International Harmonization of Safety Standards; meetings schedule, 9741–9742 Internal Revenue Service RULES National Institutes of Health Employment taxes and collection of income taxes at source: NOTICES Indian gaming profits to tribal members; withholding on Meetings: distributions; correction, 9639 National Institute of Mental Health, 9713 PROPOSED RULES Research Grants Division special emphasis panels, 9713– Income taxes: 9714 Tax-qualified retirement plans; eligible rollover distributions; cross reference; hearing, 9659–9660 Practice and administration: National Oceanic and Atmospheric Administration Tax-qualified retirement plans; eligible rollover PROPOSED RULES distributions; cross reference; correction, 9660 Ocean and coastal resource management: Procedure and administration: Coastal zone management program regulations; Federal Return information disclosure; property or services for regulatory review, 9746–9762 tax administration purposes; Justice Department; correction, 9660 National Park Service NOTICES NOTICES Meetings: Mining plans of operation; availability, etc.: Art Advisory Panel, 9744 Mojave National Preserve, CA, 9720

International Trade Administration Nuclear Regulatory Commission NOTICES NOTICES Antidumping: Agency information collection activities: Oil country tubular goods from— Submission for OMB review; comment request, 9735– Canada, 9676 9736 Titanium sponge from— Generic letters: Russia, 9676–9678 Testing of safety-related logic circuits; workshop, 9736 Operating licenses, amendments; no significant hazards Justice Department considerations; biweekly notices; correction, 9736 See Foreign Claims Settlement Commission Postal Service Labor Department NOTICES See Employment and Training Administration Privacy Act: See Mine Safety and Health Administration Computer matching programs, 9736–9737 VI Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Contents

Presidential Advisory Committee on Gulf War Veterans' Toxic Substances and Disease Registry Agency Illnesses See Agency for Toxic Substances and Disease Registry NOTICES Meetings, 9737 Transportation Department Presidential Documents See Federal Aviation Administration ADMINISTRATIVE ORDERS See Federal Highway Administration Argentina-U.S. nuclear energy cooperation agreement See Federal Railroad Administration (Presidential Determination No. 96–12 of February 28, See Federal Transit Administration 1996), 9887 See Maritime Administration Iran emergency; continuation (Notice of March 8, 1996), See National Highway Traffic Safety Administration 9897 See Surface Transportation Board Narcotics; major producing and transit countries, certification (Presidential Determination No. 96–13 of Treasury Department March 1, 1996), 9891 See Customs Service Palestine Liberation Organization; suspension of restrictions See Internal Revenue Service on relations with U.S., delegation of responsibilities to Secretary of State, 9889 United States Enrichment Corporation Soviet Union, New Independent States of the Former: NOTICES Assistance program (Presidential Determination No. 96– Meetings; Sunshine Act, 9744 14 of March 1, 1996), 9893

Public Health Service See Agency for Toxic Substances and Disease Registry Separate Parts In This Issue See Centers for Disease Control and Prevention See Food and Drug Administration Part II See National Institutes of Health National Oceanic and Atmospheric Administration, Coastal Railroad Retirement Board Zone Management, 9746–9762 NOTICES Supplemental annuity program; determination of quarterly Part III rate of excise tax, 9737–9738 Department of Labor, Mine Safety and Health Administration, 9764–9846 Securities and Exchange Commission PROPOSED RULES Securities: Part IV Disclosure Simplification Task Force recommendations, Securities and Exchange Commission, 9848–9857 9848–9857 NOTICES Part V Self-regulatory organizations; proposed rule changes: Department of Transportation, Federal Highway National Association of Securities Dealers, Inc., 9739– Administration, 9860–9862 9740 Applications, hearings, determinations, etc.: Part VI Mobile Mini, Inc., 9738 Education Department, 9864–9884 Simula, Inc., 9738 Voice Control Systems, Inc., 9738–9739 Part VII State Department The President, 9887–9893 NOTICES Meetings: Part VIII International Telecommunications Advisory Committee, The President, 9897 9740

Surface Transportation Board NOTICES Reader Aids Railroad operation, acquisition, construction, etc.: Additional information, including a list of public laws, Ellis & Eastern Co., 9742 telephone numbers, reminders, and finding aids, appears in Livonia, Avon & Lakeville Railroad Corp., 9742–9743 the Reader Aids section at the end of this issue. Railroad services abandonment: Central Kansas Railway, Limited Liability Co., 9743 Central Railroad Co. of Indiana, 9743–9744 Electronic Bulletin Board Tennessee Valley Authority Free Electronic Bulletin Board service for Public Law NOTICES numbers, Federal Register finding aids, and a list of Agency information collection activities: documents on public inspection is available on 202–275– Proposed collection; comment request, 9740 1538 or 275–0920. Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Contents VII

CFR PARTS AFFECTED IN THIS ISSUE

A cumulative list of the parts affected this month can be found in the Reader Aids section at the end of this issue.

3 CFR 18 CFR Executive Orders: 154...... 9613 12957 (Continued by 19 CFR Notice of March 8, 148...... 9638 1996) ...... 9897 21 CFR 12959 (See Notice of 5...... 9639 March 8, 1996)...... 9897 26 CFR Administrative Orders: 31...... 9639 Memorandums: Proposed Rules: February 29, 1996 ...... 9889 1 (2 documents) ...... 9659, Notices: 9660 March 8, 1996 ...... 9897 301...... 9660 Presidential Determinations: 30 CFR No. 96±12 of February 75...... 9764 28, 1996 ...... 9887 No. 96±13 of March 1, 40 CFR 52 (3 documents) ...... 9639, 1996 ...... 9891 9642, 9644 No. 96±14 of March 1, 112...... 9646 1996 ...... 9893 114...... 9646 7 CFR 117...... 9646 29...... 9589 Proposed Rules: 31...... 9589 52 (3 documents) ...... 9661 32...... 9589 70...... 9661 51...... 9589 52...... 9589 46 CFR 53...... 9589 Proposed Rules: 54...... 9589 381...... 9670 56...... 9589 58...... 9589 47 CFR 70...... 9589 73...... 9648 160...... 9589 76...... 9648 Proposed Rules: Proposed Rules: 52...... 9654 76...... 9671 9 CFR 49 CFR 671...... 9650 Proposed Rules: 301...... 9655 50 CFR 304...... 9655 17...... 96510 305...... 9655 306...... 9655 307...... 9655 318...... 9655 325...... 9655 381...... 9655 12 CFR 366...... 9590 14 CFR 39 (5 documents) ...... 9599, 9601, 9604, 9606, 9607 71...... 9612 121...... 9612 Proposed Rules: 71 (4 documents) ...... 9655, 9656, 9657, 9658 15 CFR Proposed Rules: 923...... 9746 926...... 9746 927...... 9746 928...... 9746 932...... 9746 933...... 9746 17 CFR Proposed Rules: 210...... 9848 228...... 9848 229...... 9848 230...... 9848 232...... 9848 239...... 9848 240...... 9848 249...... 9848 9589

Rules and Regulations Federal Register Vol. 61, No. 48

Monday, March 11, 1996

This section of the FEDERAL REGISTER SUPPLEMENTARY INFORMATION: On will continue to appear in the CFR, contains regulatory documents having general December 4, 1995, an interim final rule although they will also be available in applicability and legal effect, most of which was published in the Federal Register separate publications along with all are keyed to and codified in the Code of requesting comments on USDA’s other grade standards, except those for Federal Regulations, which is published under initiative to remove voluntary U.S. wool and mohair. Standards for wool 50 titles pursuant to 44 U.S.C. 1510. grade standards and other selected and mohair and related regulations will The Code of Federal Regulations is sold by regulations covering a number of be removed from the CFR and will no the Superintendent of Documents. Prices of agricultural commodities (dairy longer be available since there is no new books are listed in the first FEDERAL products, tobacco, wool, mohair, fresh demand for services pertaining to wool REGISTER issue of each week. and processed fruits and vegetables, or mohair. livestock, meats and meat products, Since the Department has no eggs, and poultry and rabbit products) objection to the requests for extension of DEPARTMENT OF AGRICULTURE from the Code of Federal Regulations the comment period, we suggest that the (CFR). Comments were to be received by Agricultural Marketing Service period be reopened and extended for an February 2, 1996. additional 120 days. Accordingly, the 7 CFR Parts 29, 31, 32, 51, 52, 53, 54, On January 31, 1996, we received a comment period is extended to July 9, 56, 58, 70, and 160 comment from the American Dairy 1996. Products Institute (ADPI) requesting that [Docket Number FV±95±303] implementation of the removal of grade List of Subjects standards for dairy products from the Removal of U.S. Grade Standards and 7 CFR Part 29 CFR be postponed and that the period Other Selected Regulations for comment be extended for an Administrative practice and AGENCY: Agricultural Marketing Service, additional 120 days. On February 2, procedure, Advisory committees, USDA. 1996, we received a comment from the Government publications, Imports, ACTION: Reopen and Extension of American Meat Institute (AMI) Pesticides and pests, Reporting and Comment Period. requesting that the comment period be recordkeeping requirements, Tobacco. extended for an additional 60 days to 7 CFR Part 31 SUMMARY: Notice is hereby given that allow time for clarification of the the time period for filing comments is procedures for developing and revising Wool. reopened and extended on the interim standards that will ensure that industry 7 CFR Part 32 final rule published in the December 4, will be able to comment on, and receive 1995, issue of the Federal Register (60 responses to, their concerns about future Mohair. FR 62172–62181). The comment period modifications to grade standards. is extended until July 9, 1996. The Both commentors expressed several of 7 CFR Part 51 comment period is extended to allow their concerns and the importance of Agricultural commodities, Food interested parties adequate time to having the comment period extended to comment. grades and standards, Fruits, Nuts, allow additional time for their members Reporting and recordkeeping DATES: Comments must be received by to truly evaluate this initiative and the requirements, Trees, Vegetables. July 9, 1996. full impact it would have on their ADDRESSES: Interested persons are industry. This rule was developed in 7 CFR Part 52 invited to submit written comments response to the President’s regulatory Food grades and standards, Food concerning this interim final rule. review initiative. This provided the labeling, Frozen foods, Fruit juices, Comments must be submitted in impetus to develop new approaches to Fruits, Reporting and recordkeeping duplicate, signed, include the address of meet more effectively the needs of U.S. requirements, Vegetables. the sender, and should bear reference to industry, government agencies, and the date and page number of this issue consumers and still reduce the 7 CFR Part 53 of the Federal Register. Commentors are regulatory burden. As part of this encouraged to include definitive initiative, voluntary standards that are Cattle, Hogs, Livestock, Sheep. information which explains and currently in the CFR and are 7 CFR Part 54 supports the sender’s views. Written administered by AMS are being comments may be mailed to Eric removed from that publication. This Food grades and standards, Food Forman, Deputy Director, Fruit and rule eliminates selected regulations labeling, Meat and meat products. Vegetable Division, USDA, AMS, Room which encompass approximately 1,200 7 CFR Part 56 2085–S, P.O. Box 96456, Washington, pages of the CFR. With respect to the DC 20090–6456. official grade standards, this includes all Eggs and egg products, Food grades Comments will be available for public the standards except those which are and standards, Food labeling, Reporting inspection during regular business currently in the rulemaking process, or and recordkeeping requirements. hours in Room 2085–South Building; are incorporated by reference in 7 CFR Part 58 14th Street and Independence Avenue, marketing orders/agreements appearing SW., Washington, D.C. at 7 CFR Parts 900 through 999 or those Dairy products, Food grades and FOR FURTHER INFORMATION CONTACT: Eric necessary for implementing government standards, Food labeling, Reporting and Forman (202) 690–0262. price support. Those grade standards recordkeeping requirements. 9590 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations

7 CFR Part 70 combined the required regulations in confidential information. The proposed Food grades and standards, Food the interim final rule. rule prescribed a 60-day comment The Board determined that combining labeling, Poultry and poultry products, period and invited comments from all the prescribed regulations into one rule Rabbits and rabbit products, Reporting interested parties. The Corporation would provide the most consistent and recordkeeping requirements. received six comment letters and, after treatment of contractors and reduce careful consideration of each comment, 7 CFR Part 160 confusion in the application of the has made appropriate modifications to Administrative practice and regulations. the rule. In addition, OGE requested procedure, Advertising, Forests and DATES: Effective date. April 10, 1996. numerous changes which resulted in the forest products, Labeling, Packaging and Comment period date. Comments reorganization and modification of some containers, Reporting and recordkeeping must be received on or before May 10, provisions. The Board determined that requirements. 1996. an interim final rule would be ADDRESSES: Send comments to Jerry L. appropriate in order to allow interested Dated: February 29, 1996. Langley, Executive Secretary, FDIC, 550 parties to comment on the revised rule David N. Lewis, 17th Street, NW, Washington, DC 20429. while providing for the prompt Acting Administrator. Comments may be hand-delivered to implementation of the rule to satisfy [FR Doc. 96–5716 Filed 3–8–96; 8:45 am] room 400, 1776 F Street, NW, concerns relating to the merger of the BILLING CODE 3410±02±P Washington, DC 20429 on business days RTC into the FDIC. The Corporation, between 8:30 a.m. and 5:00 p.m. [FAX with the concurrence of OGE, is now number: (202) 898–3604; Internet: publishing, as an interim final rule, the Contractor Conflicts of Interest rule, to FEDERAL DEPOSIT INSURANCE [email protected]]. Comments will be codified in new part 366 of 12 CFR CORPORATION be available for inspection and photocopying at the FDIC’s Reading chapter III. 12 CFR Part 366 Room, room 7118, 550 17th Street, NW, Pursuant to the Completion Act, OGE Washington, DC 20429, between 9:00 is providing its concurrence to those RIN 3064±AB39 a.m. and 4:30 p.m. on business days. provisions of the interim final rule FOR FURTHER INFORMATION CONTACT: which govern conflicts of interest, Contractor Conflicts of Interest James T. Lantelme, Assistant General ethical responsibilities, and the use of Counsel, Regional Affairs Section, Legal confidential information as applicable AGENCY: Federal Deposit Insurance to independent contractors which are Corporation. Division, (202) 736–0120; or Richard M. Handy, Ethics Program Manager, Office not deemed under 12 U.S.C. ACTION: Interim final rule. of the Executive Secretary, (202) 898– 1822(f)(1)(B) to be employees of the 7271, both at the FDIC. Corporation for purposes of Title 18 of SUMMARY: The Board of Directors of the the United States Code. Contractors who Federal Deposit Insurance Corporation SUPPLEMENTARY INFORMATION: are deemed under 12 U.S.C. (FDIC or Corporation), with the I. Background 1822(f)(1)(B) to be employees of the concurrence of the Office of Corporation, are subject, in addition to Government Ethics (OGE), is adopting On June 24, 1994, the Corporation the interim final rule, to Title 18 of the an interim final rule implementing published for comment a proposed rule United States Code; the Standards of certain provisions of section 19 of the applicable to independent contractors Ethical Conduct for Employees of the Resolution Trust Corporation designed to establish standards Executive Branch (5 CFR part 2635); the Completion Act (the Completion Act) governing conflicts of interest, ethical Supplemental Standards of Ethical and soliciting comments. Section 19 of responsibilities, and the use of Conduct for Employees of the Federal the Completion Act amended section 12 confidential information and procedures Deposit Insurance Corporation (5 CFR of the Federal Deposit Insurance Act for ensuring that independent part 3201); the Executive Branch (FDI Act) and requires the Board of contractors meet minimum standards of Financial Disclosure, Qualified Trusts, Directors to prescribe regulations to competence, experience, integrity, and and Certificates of Divestiture ensure that contractors meet minimum fitness (59 FR 32661–32668). The regulations (5 CFR part 2634); and the standards of competence, experience, proposed rule was published in Supplemental Financial Disclosure integrity and fitness, and requires that response to the requirements of Section Requirements for Employees of the these regulations establish prohibitions 19(a) of the Resolution Trust Federal Deposit Insurance Corporation on the Corporation’s ability to contract Corporation Completion Act, codified at (5 CFR part 3202). with or have certain entities provide 12 U.S.C. 1822(f), which requires that services to the FDIC. Section 19 of the the Board of Directors prescribe II. Summary of the Comments Completion Act also requires that the regulations establishing procedures for The Corporation received comments Board of Directors prescribe regulations ensuring that any individual who is from four law firms and two governing conflicts of interest, ethical performing any function or service on corporations. The comments from the responsibilities, and the use of behalf of the Corporation meets two corporations involved concerns confidential information for those minimum standards of competence, over the administrative burden that independent contractors who are not experience, integrity, and fitness and might be imposed through compliance deemed under the FDI Act, as amended, prohibiting any person who does not with the reporting requirements under to be employees of the Corporation for meet such standards from entering into § 366.6 of the proposed rule. The purposes of Title 18 of the United States contracts for services with or performing comments from the law firms raised a Code. Pursuant to the authority granted services on behalf of the Corporation. variety of issues including the potential to it under the Completion Act, the The Completion Act also requires the effects of state privacy laws, changes in Board of Directors is making the Board of Directors, with the concurrence the treatment of law firms, concerns regulations required under section 19 of of OGE, to prescribe regulations over threshold amount in the definition the Completion Act applicable to any governing conflicts of interest, ethical of default on a material obligation, the FDIC contracts for services and has responsibilities, and the use of impact of the rule on the use of Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9591 subsidiaries, and the potential for Previous policies. Section 366.1(e) of the interim final rule in order to former insiders of failed institutions to was eliminated as being unnecessary. include individuals in the coverage of be involved in the liquidation of other Effective on April 10, 1996, this part the definition of contractor. The second failed institutions. supersedes and replaces the FDIC’s part of the definition of contractor, ‘‘Statement of Policy on Contracting found at § 366.2(e)(2) of the proposed III. Analysis of the Comments and with Outside Firms’’, which was rule, involved subcontracting Changes to the Rule published in the Federal Register on relationships. Section 366.2(o) of the Section 366.1 Authority, Purpose and May 17, 1993, at 58 FR 28866. interim final rule provides a separate Scope definition of the term subcontractor. Section 366.2 Definitions Management official. The definition Authority. Section 366.1(a) of the Affiliated business entity. Section of the term management official, as set proposed rule was modified by adding 366.2(a), the definition of affiliated forth in § 366.2(m) of the proposed rule, section 12(f)(4) of the Federal Deposit business entity, was modified at the was modified at OGE’s request to Insurance Act to the list of authorities. request of OGE. The Office of provide greater guidance in the use of Purpose. Section 366.1(b) of the Government Ethics believed that the such term. In the proposed rule, proposed rule was simplified by discretionary aspect of the definition set management official was defined to dividing the provision into its forth in the proposed rule was too mean an individual who controls a component parts and changing its subjective and that FDIC concerns as to company. In § 366.2(i) of the interim language to be consistent with language whether various types of relationships final rule, management official is more used elsewhere in the rule. constitute affiliations are adequately specifically defined as a shareholder, Scope. One of the law firm addressed through the use of the employee, or partner who controls a commenters suggested that the scope of defined term control in the affiliated company and any individual who the rule be limited by adding a business entity definition. Under the directs the day-to-day operations of a provision which would provide that the definition of control, the FDIC is able to company. For partnerships, all general existing policies concerning outside determine that an entity is an affiliated partners are considered management counsel conflicts of interest remain business entity when such entity has the officials, except when a partnership has unchanged after adoption of the rule. ability to exercise a controlling a management or executive committee, The Board declined to modify the scope influence over a company’s in which case the members of such of the rule with regard to law firms. management and policies. Additionally, committees are considered management Section 19(a) of the Completion Act, OGE suggested the deletion of the officials. codified at 12 U.S.C. 1822(f), does not statement concerning when a Person. The definition of person, provide an exception to its application subfranchiser would not be considered found at § 366.2(q) of the proposed rule, for legal services contracts. To date, the to be an affiliated business entity of its was changed to be more compatible FDIC’s Legal Division has applied the master franchiser on the basis that the with its common meaning. One of the Resolution Trust Corporation’s (RTC) remaining definition adequately law firm commenters objected to the rule, 12 CFR part 1606, entitled addresses that issue. scope of the information that was Qualification of, Ethical Standards for, Company. The definition of company, required to be submitted by law firm and Restrictions on the Use of as set forth in § 366.2(b) of the proposed employees under § 366.6(a) of the Confidential Information by rule, was modified through the proposed rule due to the mistaken belief Independent Contractors (part 1606), in elimination of the term individual from that a more common definition of the its contract relationships with law firms. such definition. The Office of word person was applicable. Since the Part 1606 was promulgated by the RTC Government Ethics disagreed with the definition set forth in the proposed rule in response to requirements imposed proposed inclusion of the term is inconsistent with the common upon it by the Financial Institutions individual since such term was not meaning of person and would likely Reform, Recovery, and Enforcement Act consistent with the remaining business cause confusion among contractors and of 1989 (FIRREA). The FDIC has enterprises listed under the definition those FDIC employees charged with substantially identical restrictions on and was contrary to the common enforcement of the rule, its definition the use of contractors imposed by the meaning of such term. In making such was changed in the interim final rule to Completion Act. Thus, it is not expected change, it was determined to be include an individual or company. Such that the FDIC’s relationships with the unnecessary to separately define the change satisfied similar concerns which law firms with which it contracts will term individual since its meaning is had been raised by OGE. substantially change after the commonly understood. Revision of the Confidential information. The promulgation of the interim final rule. definition of company also necessitated definition of confidential information, However, in order to better clarify the revision of the definitions of contractor, found at § 366.2(c) of the proposed rule, scope of the rule, § 366.1(c)(1) of the management official, and person. was moved to § 366.8(c) in the interim proposed rule was reorganized and Contractor. The definition of final rule and simplified by eliminating revised in order to (1) eliminate contractor was changed due to the unnecessary language. unnecessary language and simplify the impact of changes to other definitions. Conflict of interest. The definition of provision, (2) clearly set forth that the In § 366.2(e) of the proposed rule, a two- conflict of interest, found at § 366.2(d) of rule is applicable to law firms, (3) part definition was provided. Section the proposed rule, was changed at the clarify the application of the rule to 366.2(e)(1) provided that a contractor request of OGE and one of the corporate subcontractors of FDIC contractors, and was a company which had submitted an commenters in order to provide a more (4) at the request of the Board, remove offer to, or had a contractual narrow definition and eliminate Corporate leases of real property from arrangement with, the FDIC to perform redundant language. coverage under the rule. services. Since the definition of Section 366.2(d)(1) of the proposed Section 366.1(c)(2) was not changed. company has been modified to exclude rule had two subparts. The first subpart, Resolution Trust Corporation. Section the term individual, the proposed rule concerning actual adverse impact on a 366.1(d) was simplified by eliminating was further modified by replacing the contractor’s ability to impartially unnecessary language. term company with person at § 366.2(d) provide services, was determined to be 9592 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations included within the second subpart, OGE questioned the need for such similar $50,000 threshold amount and which set forth that a conflict of interest provision since such provision is a did not experience a lack of contractors would exist where a reasonable subset of the general standard set forth willing to perform services for the FDIC. individual with knowledge of the in § 366.2(c)(1) of the interim final rule. Additionally, the scope of the definition relevant facts would question the However, the FDIC has experienced is limited to defaults on loans or contractor’s ability to impartially situations in which contractors have advances from insured depository provide services to the FDIC. Therefore, certified that they have no conflicts of institutions, the institutions for which the first subpart was eliminated in the interest under current FDIC policies the FDIC has responsibility for interim final rule and, with language while being an adversary to the FDIC in providing deposit insurance and changes to accommodate changes made a lawsuit. The rationale most often resolution in the event of a failure, and to other definitions, the second subpart provided by contractors to justify their it would be inappropriate for the FDIC was rewritten to simplify the standard. contention that there was no conflict to contract with entities that have Sections 366.2(d)(2) and (4) of the was that the litigation involved matters significantly contributed to losses proposed rule were combined in or insured depository institutions which incurred by such institutions. § 366.2(c)(4) of the interim final rule and were unrelated to the contracts under Federal banking agency. The their breadth reduced. Under the consideration. In order to avoid such definition of Federal banking agency revised provision, the FDIC is able to problem, the provision has been found at § 366.2(h) of the proposed rule determine that facts exist which would retained in the interim final rule. was deleted. Other changes to the rule provide a contractor with an unfair Section 366.2(c)(3) of the interim final made the definition unnecessary. competitive advantage which could rule was added at the request of the The definition of Federal deposit benefit the contractor or any person Board in order to clearly state that a insurance fund, found at § 366.2(i) of with whom the contractor has or is conflict of interest exists where a the proposed rule, was combined with likely to have a personal or business contractor has been suspended or the definition of substantial loss to relationship. Such situations are likely debarred from contracting with other Federal deposit insurance funds, found to arise in situations where (1) a Federal entities. In planning the merger at § 366.2(t) of the proposed rule, and contractor or a person associated with of the RTC into the FDIC, it was the revised rule set forth as the the contractor intends to purchase assets determined that it was appropriate for definition of substantial loss to Federal held by the FDIC which were managed the FDIC to adopt a debarment program deposit insurance funds, found at by the contractor; (2) information could similar to that established by the RTC. § 366.2(o) of the interim final rule. be obtained by a contractor through the To aid in properly administering such The definition of FDIC found at performance of an FDIC contract which program, it was important that § 366.2(j) of the proposed rule was would not be available to other bidders consideration of such program be modified to include the statutory to a subsequent contract and which included in the interim final rule. citations for the authority of the information could provide the Control. Section 366.2(f)(1) of the Corporation to act as conservator and contractor or a person associated with proposed rule was not changed in the operator of a bridge bank. The revised the contractor with an unfair interim final rule, but was renumbered definition is found at § 366.2(g) of the competitive advantage in the as § 366.2(e). The Office of Government interim final rule. preparation of its bid; and (3) Ethics believed that § 366.2(f)(2) of the The definition of insider found at confidential information could be proposed rule was redundant and § 366.2(k) of the proposed rule was obtained through the performance of an requested that it be deleted. In response, deleted. Other changes to the rule made FDIC contract which would provide the the FDIC has dropped that proposed the definition unnecessary. contractor, or a person associated with paragraph from this interim final rule. The definition of insured depository the contractor, with information which Default on a material obligation. At institution found at § 366.2(l) of the could be utilized to obtain an advantage the suggestion of OGE, § 366.2(g) of the proposed rule was not changed (see in the purchase of the securities of an proposed rule was modified in § 366.2(f) § 366.2(h) of the interim final rule). insured depository institution. Such of the interim final rule by clarifying The definition of management official situations are not exclusive. OGE FDIC’s intent that if a qualifying default found at 366.2(m) of the proposed rule believed that the unintended advantage had ever occurred, it would be covered was not changed (see 366.2(i) of the standard set forth in the original and by specifying that the determination interim final rule). provision was vague and contractors of whether the $50,000 threshold The first sentence in the definition of would be unable to provide the requisite amount had been met to qualify a offer, found at § 366.2(n) of the certifications for such standard. default as a default on a material proposed rule, was simplified and an Additionally, the discretionary standard obligation would be considered accommodation made for the removal of set forth in § 366.2(d)(4) of the proposed beginning on the 90th day after the definition of offeror. In the proposed rule was more narrowly tailored, yet, for delinquency and thereafter. version, an offer was defined to be a the most part, is retained in § 366.2(c)(4) One of the law firm commenters response submitted by an offeror to an of the interim final rule and allows the requested that the $50,000 threshold FDIC solicitation. In the interim final FDIC to review the myriad of possible amount be raised due to possible rule, an offer is defined to be a proposal factual scenarios to determine if punitive effects of the rule on honest to provide services to the FDIC. performance under an FDIC contract has and hard working persons who could be The definition of offeror found at created a situation which would reduce precluded from providing services to § 366.2(o) of the proposed rule was competition in the marketplace. the FDIC as contractors due to deleted due to changes in the rule Section 366.2(d)(3) of the proposed circumstances beyond their control. The which made the use of such term rule, which specifically provides that a Board does not agree with the unnecessary. conflict of interest exists where a commenter’s contention. The FDIC, in The definition of pattern or practice contractor is an adverse party to the its ‘‘Statement of Policy on Contracting of defalcation found in § 366.2(p) of the FDIC in a lawsuit, was retained in with Outside Firms’’, which was proposed rule was not changed but the § 366.2(c)(2) of the interim final rule and published in the Federal Register on defined term was changed to pattern or the $50,000 threshold was removed. May 17, 1993 (58 FR 28866), utilized a practice of defalcation regarding Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9593 obligations to better track the statutory U.S.C. 1822(f)(4)(E). OGE believed Section 366.5 Contractor Conflicts of language. See § 366.2 (k). separating the mandatory provisions Interest and Ethical Responsibilities The definition of RTC found in from the conflict of interest provisions One of the law firm commenters was § 366.2(r) of the proposed rule was not would decrease the possibility of concerned that the example set forth in changed (see § 366.2(m)). confusion about the variant authority § 366.5(a)(1) of the proposed rule could The definition of solicitation found at pursuant to which the respective be construed as suggesting that an § 366.2(s) of the proposed rule was provisions were being promulgated and insider of an insured depository deleted due to changes in the rule the degree of discretion the FDIC may which made the use of such term institution for which the FDIC or RTC have with respect to issues arising has been appointed receiver would not unnecessary. under the respective authorities. By The definition of subcontractor found have a conflict of interest with respect distinguishing between the mandatory at § 366.2(n) of the interim final rule to a contract which involves services to prohibitions imposed by the Completion was added to accommodate the an unrelated institution. The issue of suggestion of one of the commenters for Act and conflicts of interest generally, whether a conflict of interest exists due greater clarity in the application of the the certifications required to be made to a person’s former association with a rule to subcontractors. under § 366.6(a) of the interim final rule failed institution would have to be The definition of substantial loss to are more easily identified by contractors determined on a case-by-case basis after Federal deposit insurance funds found thereby simplifying the certification review of the relationship of such at 366.2(t) of the proposed rule was process. The separation of the person to the failed institution. changed to delete 366.2(t)(3), mandatory bars from the conflict of However, in order to avoid concerning nonrecourse loans made to interest provisions facilitates inappropriate application of the insiders from an insured depository differentiation between those provisions standard, the examples were removed institution. Persons causing a loss due requiring OGE concurrence and those from the rule. to such loans will otherwise be barred not requiring such concurrence. At the request of OGE, the first under the remaining definitions of Section 366.4(a) and (b) of the sentence in § 366.5(a) of the proposed substantial loss to Federal deposit proposed rule were consolidated and rule was removed since it stated a insurance funds and the other simplified in § 366.4(b) of the interim matter which added no substance to the disqualifying conditions found at final rule. The terms offeror, person, and rule. The remainder of the provision 366.4(a) of the interim final rule. The company were eliminated and replaced was restated more succinctly and, as revised definition is found at 366.2(o) of with the term contractor and discussed above, the examples removed the interim final rule. unnecessary language was eliminated. from the text. The rule, as restated, Section 366.3 Qualification of Additionally, in order to avoid the provides that the FDIC will not award Contractors significant administrative and contracts to contractors that have contractual burdens which would be conflicts of interest associated with a Since publication of the proposed particular contract or permit contractors rule, the FDIC has designated the FDIC imposed by awarding a contract to a disqualified contractor, the 10 day to continue performance under existing Executive Secretary as the appropriate contracts when such contractors have official to handle the matters which had requirement for reporting undisclosed disqualifying conditions was refined to conflicts of interest, unless such been designated for the Contractor conflicts are eliminated by the Fitness and Integrity Compliance Officer be the earlier of 10 days after discovery or prior to award. contractor or are waived by the as referenced in § 366.3(a)(2) of the appropriate FDIC official. proposed rule. Additionally, the Section 366.4(c) of the proposed rule provisions relating to the officials was simplified in of the interim final At the request of OGE, the standard of responsible for administration of the rule. Additionally, §§ 366.4(c)(2) and (3) review for waiver requests as provided rule were simplified and provided with of the interim final rule were moved in § 366.5(b) and (c) of the proposed rule was consolidated in § 366.5(b) of the their own distinct section. In § 366.3 of from § 366.8 of the proposed rule in interim final rule and revised to clearly the interim final rule, entitled order to provide greater clarity in the state that waivers will only be granted appropriate officials, the General application of the provision. The moved when the interests of the FDIC in the Counsel and Executive Secretary, or provisions, as revised, provide the FDIC contractor’s participation outweigh the their designees, are assigned with the option to require that responsibility for the administration of concern that a reasonable person may corrective action be taken by the question the integrity of the FDIC’s the rule with regard to law firms and contractor, to immediately terminate other contractors, respectively. Section operations. The standard set forth in the any contracts with the contractor in proposed rule provided that a waiver 366.3(b) of the proposed rule was default and order a transfer of duties, or moved to 366.4 of the interim final rule. would be granted pursuant to the to declare any contracts with such discretion of the appropriate official. Section 366.4 Disqualification of contractor in default and temporarily The Office of Government Ethics stated Contractors waive such default in order to protect that, in the interests of fairness to the FDIC’s interests in the orderly At the request of OGE, § 366.3(b) of contractors, a discernable standard of transition of matters to a new contractor. the proposed rule, entitled Qualification review should be provided in the rule for service on behalf of the FDIC, was Section 366.4(d) of the proposed rule to be applied to all waiver requests. moved to § 366.4(a) of the interim final was revised to provide for the The Office of Government Ethics also rule and § 366.3(b)(5) was incorporated possibility of a secondary review requested that § 366.5(b) and (c) of the in § 366.5 of the interim final rule. process apart from the appropriate proposed rule, which provided separate Section 366.4 was simplified by official who originally rendered such procedures for pre- and post-offer incorporating only the mandatory decision. The secondary review would requests for review of conflicts, be prohibitions on the use of contractors be based upon written application made consolidated into one time-frame. which were imposed on the FDIC by to the Chairman of the FDIC, or the Section 366.5(c) of the interim final rule Section 19(a) of the Completion Act, 12 Chairman’s designee. provides the consolidated provision. 9594 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations

The Office of Government Ethics source for identifying lawyers available contractor; proposed § 366.6(a)(2) was requested that the separate treatment of for engagement on specific legal matters reworked to accommodate the changes contractors for legal services versus and, if so identified, additional to the definitions and the required other services as provided in proposed disclosure and review are required certifications reduced to include only § 366.5(b), (c), and (d) be explained in concerning case-specific qualification the contractor or any company under the preamble and consolidated in the criteria. Counsel are also required to the contractor’s control; to text of the rule through the use of one enter into a Legal Services Agreement accommodate the reductions in the paragraph covering pre-bid requests for with the Legal Division which governs certifications required under review of conflicts of interest for all engagements with the FDIC. The § 366.6(a)(1) and (2) of the proposed rule contractors other than law firms and selection and retention process for law while not imposing a significant sole practitioner lawyers. The interim firms and sole practitioner lawyers is paperwork collection on the contractor final rule, in § 366.5(c)(3), provides that substantially different from the process and the FDIC, § 366.6(a)(3) in the requests for pre-bid review of conflicts utilized for other contractors, which interim final rule was added which for contractors other than law firms and typically includes the development of a requires that the contractor provide an sole practitioner attorneys will only be procurement requisition, the agreement that it will not allow any considered if the participation of the preparation and issuance of a request for employee, agent, or subcontractor to contractor in the bidding process is proposals, and the subsequent work on an FDIC contract unless it has necessary to provide adequate evaluation of bids or proposals received. first verified that such employee, agent, competition. It is the FDIC’s preference The establishment of a separate or subcontractor is not subject to to do business only with contractors procedure under § 366.5 for resolution disqualifying conditions or otherwise which do not have conflicts of interest. or waiver of conflicts of interest for law has a conflict of interest; and proposed However, it is recognized that there may firms and sole practitioner lawyers is an § 366.6(a)(3) was moved to § 366.6(a)(4) be situations in which there are few acknowledgement of relevant of the interim final rule and the scope qualified contractors and the differences in type of services and the of the other information which can be participation of contractors which have differing relationship that lawyers have requested narrowed to be dependent on conflicts is important to encourage with the FDIC as their client. the contract under consideration. competition. Proposed § 366.5(d) was also revised One of the law firm commenters With regard to the different treatment in the interim final rule to include the stated that the FDIC had acted outside accorded law firms and sole practitioner remedies available to the FDIC in the the scope of its authority in imposing lawyers in the conflict review process, event a conflict of interest is discovered the requirement in proposed the regulation recognizes the additional after contract award as was provided in § 366.6(a)(2) that a contractor provide a responsibilities that are placed on law proposed § 366.8(a). list and description of any defaults to firms and sole practitioner lawyers Section 366.5(e) of the proposed rule insured depository institutions for the providing services to the FDIC and also was revised to provide for the 10-year period preceding the observes the separate contracting possibility of a secondary review submission of an offer. The Board processes that exist in the Legal process apart from the appropriate disagrees with the commenter’s Division for the selection and retention official who originally rendered such contention. The Completion Act, at 12 of contractors. decision. The secondary review would U.S.C. 1822(f)(4)(C), requires the FDIC Specifically, in addition to the be based upon written application made to obtain a list and description of any conflicts of interest requirements to the Chairman of the FDIC, or the default to an insured depository imposed by this regulation, law firms Chairman’s designee. It also provides institution for the 5-year period and sole practitioner lawyers who are the FDIC with the discretion to stay preceding the submission of an offer to providing services to the FDIC are corrective or other actions ordered by the FDIC and any other information as required to follow applicable provisions the appropriate official pending the Board may prescribe by regulation. of their State Code of Professional reconsideration of the decision. The Board determined that since the Responsibility, the Model Rules of Section 366.6 Information Required to Completion Act provisions were Professional Conduct and additional be Submitted extracted from FIRREA, which was requirements set forth in the FDIC Legal promulgated in 1989, it was important Division’s Guide for Outside Counsel At the request of OGE, in order to that the FDIC be informed as to whether and its Statement of Policies Concerning provide greater specificity to contractors a contractor or any company under the Outside Counsel Conflicts of Interest. with respect to the scope of required contractor’s control defaulted on a Law firms and sole practitioner lawyers certifications, proposed § 366.6(a) was material obligation for the 10 year are also subject to a separate contracting modified to specifically identify the period preceding the offer. process due to the close fiduciary Representations and Certifications Form A law firm commenter expressed relationship that a law firm or sole to be submitted by all contractors with concern that the information disclosure practitioner lawyer has when every offer. Also, the provision was requirements contained in § 366.6(a) of representing the FDIC. Law firms and altered to assure that FDIC would obtain the proposed rule might conflict with sole practitioner lawyers are required to the information the FDIC deems California state laws involving privacy submit to the Legal Division an appropriate to make a determination rights. However, the Completion Act, at application to provide services which with respect to disqualifying conditions 12 U.S.C. 1822(f)(4)(D), requires certain requires disclosure of any conflicts of and conflicts of interest. Additionally, information be collected by the interest existing under the broader the information to be included in the contractor for persons to be employed requirements imposed upon lawyers. If Representations and Certifications Form by a contractor to perform services the information submitted does not was tailored in § 366.6(a)(1) to under an FDIC contract. indicate the existence of any conditions accommodate the changes in the One of the law firm commenters that would bar retention, the law firm or structure of §§ 366.4 and 366.5 of the objected to the scope of the disclosures sole practitioner lawyer is added to a interim final rule and reduced, at the to be made and was concerned that list of available counsel. The list of request of one of the Corporate and law outside contractors of law firms would available counsel provides the primary firm commenters to include only the be required to make significant Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9595 disclosures to the law firm in order for obtaining compliance with the rule, the protect confidential information as the law firm to continue to use such proposed rule was modified through the required under § 366.8(a). entities and enter into contracts with the addition of § 366.6(d) which requires Section 366.8(c) defines confidential FDIC. Additionally, both of the contractors to retain the records relied information as information obtained corporate commenter’s objected to the upon in making the requisite from the FDIC or a third party in scope of the certifications to be obtained disclosures for three years after the connection with an FDIC contract but under the proposed rule as applied to expiration or termination of the relevant does not include information generally large diversified corporations and their contract and to make such information available to the public provided such employees since certifications would available to the FDIC upon request. information was not made publicly need to be obtained from all affiliated The Board was also concerned available by the contractor without business entities and the employees of unforeseeable circumstances might appropriate authorization. the contractor. Consideration to the require immediate contracting in order Section 366.9 Liability for Rescission commenters’ concerns was given in the to protect the assets or interests of the or Termination revision of § 366.6 of the proposed rule. FDIC. In order to provide reasonable In § 366.6(a) of the interim final rule, protection and allow the FDIC to act Section 366.8(a) of the proposed rule set forth that the FDIC could rescind or certifications regarding disqualifying promptly in order to protect its terminate a contract with a contractor factors and conflicts of interest must be interests, § 366.6(e) was added which who violated the requirements of part provided for the contractor; a list of provides that, in the event of an 366. The termination provision has been defaults must be provided for the emergency, the FDIC may authorize set forth in each appropriate section of contractor and any company under the delayed compliance with the rule. the interim final rule. contractor’s control; and the contractor Delayed compliance is allowed only Section 366.8(b) of the proposed rule must agree that it will not allow any when it is necessary to protect FDIC was revised to accommodate the revised employee, agent, or subcontractor to personnel or property. perform services under the FDIC structure of the interim final rule and is To clarify that, on a contract-by- now set forth in § 366.9. contract unless it verifies that such contract basis, the FDIC may add employee, agent, or subcontractor does additional contractual conditions or Section 366.10 Finality of not have a disqualifying condition or a limitations on a contractor, § 366.6(f) Determination conflict of interest and has not defaulted was added. Part 366 establishes the Section 366.9 of the proposed rule is on a material obligation. The scope of minimum standards as required by the the required certifications and now set forth at § 366.10 of the interim Completion Act and additional final rule. disclosures was thus limited to those standards may be required as the FDIC entities which would be directly deems appropriate. IV. Matters of Regulatory Procedure involved in the performance of the FDIC contract or which are under the Section 366.7 Minimum Ethical Regulatory Flexibility Act contractor’s control. Standards for Independent Contractors The Board of Directors has concluded Section 366.6(b)(1) of the proposed that the interim final rule will not Section 366.7 was added to the rule was revised to reduce the reporting impose a significant economic hardship interim final rule to comply with the and review burden placed upon on small institutions. Therefore, the portion of the Completion Act that contractors and the FDIC. In the Board of Directors hereby certifies requires the FDIC to establish minimum proposed rule, a contractor was required pursuant to section 605 of the ethical standards for contractors. to obtain and submit certifications for Regulatory Flexibility Act (5 U.S.C. 605) Section 366.7(a) provides that a all employees who were to provide that the interim final rule will not have contractor shall not improperly solicit services on any FDIC contract. a significant economic impact on a favors, gifts, or other items of monetary Additionally, in § 366.6(b)(2), the FDIC substantial number of small business value; improperly use FDIC property; could request the submission of such entities within the meaning of the use its status as an FDIC contractor for information at any time. In § 366.6(b) of Regulatory Flexibility Act (5 U.S.C. 601 its benefit except as contemplated by the interim final rule, a contractor is et seq.). required to obtain verification of the the contract; or make unauthorized lack of disqualifying conditions and promises or commitments on behalf of Paperwork Reduction Act conflicts of interest for employees who the FDIC. The FDIC’s contract and procurement will provide services on an FDIC Section 366.7(b) and (c) identify information requirements constitute a contract and to provide the FDIC with potentially applicable criminal collection of information under the immediate notification if the provisions to contractors that solicit or Paperwork Reduction Act (44 U.S.C. certifications provided in § 366.6(a) accept bribes or make false statements to 3501 et seq.). The collection pursuant to were incorrect at the time of submission the Government. the proposed rule was reviewed and or subsequently became incorrect. The penalties for violating the approved by the Office of Management At the request of OGE, § 366.6(c) of provisions of § 366.7 are provided in and Budget (OMB) under control the proposed rule was simplified in the § 366.7(d). number 3064–0072. Any changes made interim final rule and provides that a Section 366.8 Confidentiality of to the Representations and Certifications contractor which fails to provide Information forms resulting from the promulgation information may be determined by the of this interim final rule will be FDIC to be ineligible for the award of an Section 366.7 of the proposed rule submitted to OMB for review and FDIC contract or in default under an was modified at § 366.8 of the interim approval pursuant to the Paperwork existing contract with the FDIC. final rule. Section 366.8(a) was added to Reduction Act. The Board was concerned that the provide a general duty to be adhered to reduction in the disclosures required to by contractors in protection of List of Subjects in 12 CFR Part 366 be submitted under the rule might confidential information. Conflict of interests, Government provide an opportunity for abuse by Section 366.8(b) sets forth the contracts, Reporting and recordkeeping contractors. In order to aid the FDIC in penalties for the failure to properly requirements. 9596 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations

For the reasons set forth in the standards of competence, experience, the death of individuals living on the preamble, pursuant to its authority integrity, and fitness; and effective date of the trust, or any other under section 19 of the Resolution Trust (3) Official written guidance to organization or institution, but shall not Corporation Completion Act, the Board contracting personnel who award include any corporation the majority of of Directors of the FDIC, with the contracts for services and to contractors the shares of which are owned by the concurrence of OGE, amends title 12, who bid on such contracts. United States, any state, or the District Chapter III of the Code of Federal (c) Scope. (1) (i) This part applies to: of Columbia. Regulations by adding part 366 to read (A) Contractors, including law firms (c) Conflict of interest means a as follows: and other independent contractors, that situation in which: are not deemed, under 12 U.S.C. (1) A contractor; any management PART 366ÐCONTRACTOR 1822(f)(1)(B), to be employees of the officials or affiliated business entities of CONFLICTS OF INTEREST FDIC, which submit offers to provide a contractor; or any employees, agents, services to the FDIC or which enter into or subcontractors of a contractor who Sec. 366.1 Authority, purpose, and scope. contracts for services with the FDIC; and will perform services under a proposed 366.2 Definitions. (B) Subcontractors which enter into or existing contract with the FDIC, has 366.3 Appropriate officials. contracts to perform services under a one or more personal, business, or 366.4 Disqualification of contractors. proposed or existing contract with the financial interests or relationships 366.5 Contractor conflicts of interest. FDIC. which would cause a reasonable 366.6 Information required to be submitted. (ii) Contractors that are deemed under individual with knowledge of the 366.7 Minimum ethical standards for 12 U.S.C. 1822(f)(1)(B) to be employees relevant facts to question the integrity or independent contractors. of the Corporation are subject, in impartiality of those who are or will be 366.8 Confidentiality of information. acting under a proposed or existing 366.9 Liability for rescission or termination. addition to this part, to Title 18 of the 366.10 Finality of determination. United States Code; the Standards of FDIC contract; or (2) A contractor; any management Authority: 12 U.S.C. 1819, 1822(f)(3) and Ethical Conduct for Employees of the (4). Executive Branch (5 CFR part 2635); the officials or affiliated business entities of Supplemental Standards of Ethical a contractor; or any employees, agents, § 366.1 Authority, purpose, and scope. Conduct for Employees of the Federal or subcontractors of a contractor who (a) Authority. This part is adopted Deposit Insurance Corporation (5 CFR will perform services under a proposed pursuant to section 12(f)(3) and (4) of part 3201); the Executive Branch or existing contract with the FDIC, is an the Federal Deposit Insurance Act, 12 Financial Disclosure, Qualified Trusts, adverse party to the FDIC, RTC, FSLIC, U.S.C. 1822(f)(3) and (4), and the rule- and Certificates of Divestiture or their successors in a lawsuit; or making authority of the Federal Deposit regulations (5 CFR part 2634); and the (3) A contractor; any management Insurance Corporation (FDIC) found at Supplemental Financial Disclosure officials or affiliated business entities of 12 U.S.C. 1819. Pursuant to those Requirements for Employees of the a contractor; or any employees, agents, sections and consistent with the goals Federal Deposit Insurance Corporation or subcontractors of a contractor who and purposes of titles 18 and 41 of the (5 CFR part 3202). will perform services under a proposed U.S. Code, the FDIC is promulgating (2) For all contractors subject to this or existing contract with the FDIC, has regulations in this part applicable to part, the FDIC will apply this part to ever been suspended, excluded, or independent contractors governing contracts which are entered into debarred from contracting with a conflicts of interest, ethical between the contractors and the FDIC Federal entity or has ever had a contract responsibilities, and the use of on or after April 10, 1996. In addition, with the FDIC, RTC, FSLIC or their confidential information. The this part applies to contracts between successors rescinded or terminated prior regulations in this part also establish contractors subject to this part and the to the contract’s completion and which procedures for ensuring that FDIC which exist on April 10, 1996 for rescission or termination involved independent contractors meet minimum which a contractual action, such as a issues of conflicts of interest or ethical standards of competence, experience, modification, extension, or exercise of responsibilities; or integrity, and fitness. The FDIC will an option, takes place on or after April (4) Any other facts exist which the apply this part to contractual activities 10, 1996. FDIC, in its sole discretion, determines it undertakes, including situations in (d) Resolution Trust Corporation may, through performance of a proposed which it is acting as manager of the transition. This part shall apply to all or existing FDIC contract, provide a Federal Savings and Loan Insurance RTC contractors that provide services to contractor with an unfair competitive Corporation (FSLIC) Resolution Fund the FDIC after the RTC’s termination advantage which favors the interests of (FRF). This part is in addition to, and which occurred, by statute, December the contractor or any person with whom not in lieu of, any other statute or 31, 1995. the contractor has or is likely to have a regulation which may apply to such personal or business relationship. contractual activities. This part does not § 366.2 Definitions. (d) Contractor means a person which apply to the FDIC when acting as a As used in this part: has submitted an offer to perform conservator of a failed financial (a) Affiliated business entity means a services for the FDIC or has a institution or when operating a bridge company that is under the control of the contractual arrangement with the FDIC bank. contractor, is in control of the contractor to perform services. (b) Purpose. Consistent with the goals or is under common control with the (e) Control means the power to vote, and purposes of titles 18 and 41 of the contractor. directly or indirectly, 25 percent or U.S. Code, this part seeks to establish: (b) Company means any corporation, more of any class of the voting stock of (1) Minimum standards which govern firm, partnership, society, joint venture, a company; the ability to direct in any conflicts of interest, ethical business trust, association or similar manner the election of a majority of a responsibilities, and the use of organization, or any other trust unless company’s directors or trustees; or the confidential information by contractors; by its terms it must terminate within ability to exercise a controlling (2) Procedures to ensure that twenty-five years or not later than influence over the company’s independent contractors meet minimum twenty-one years and ten months after management and policies. For purposes Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9597 of this definition, a general partner of a contractor to perform services under a (3) Has demonstrated a pattern or limited partnership is presumed to be in proposed or existing contract with the practice of defalcation regarding control of that partnership. FDIC. obligations; or (f) Default on a material obligation (o) Substantial loss to Federal deposit (4) Has caused a substantial loss to means a loan or advance from an insurance funds means: Federal deposit insurance funds. insured depository institution which (1) A loan or advance from an insured (b) Contractors with disqualifying has ever been delinquent for 90 or more depository institution, which is conditions arising prior to contract days as to payment of principal or currently owed to the FDIC, RTC, FSLIC award. (1) A contractor which has any interest, or a combination thereof, with or their successors, or the Bank of the disqualifying conditions a remaining balance of principal and Insurance Fund (BIF), the Savings identified in paragraph (a) of this accrued interest on the ninetieth day, or Association Insurance Fund (SAIF), the section prior to the award of an FDIC any time thereafter, in an amount in FRF, or funds maintained by the RTC contract is disqualified and is excess of $50,000. for the benefit of insured depositors, prohibited from entering into contracts (g) FDIC means the Federal Deposit that is or has ever been delinquent for with the FDIC. (2) If after submitting an offer but Insurance Corporation in its ninety (90) or more days as to payment prior to award, a contractor discovers receivership and corporate capacities. It of principal, interest, or a combination that it has any of the disqualifying does not mean the FDIC in its thereof and on which there remains a conditions identified in paragraph (a) of conservatorship capacity or when it is legal obligation to pay an amount in this section, it shall notify the FDIC in operating a bridge bank as defined, excess of $50,000; respectively, in 12 U.S.C. 1821(c) and writing within 10 days or prior to (2) An obligation to pay an award, whichever is earlier. (n). outstanding, unsatisfied, final judgment (h) Insured depository institution (c) Disqualifying conditions that arise in excess of $50,000 in favor of the or are discovered after contract award. means any bank or savings association FDIC, RTC, FSLIC, or their successors, the deposits of which are insured by the A contractor must notify the FDIC in or the BIF, the SAIF, the FRF or the writing within 10 days after discovering FDIC. funds maintained by the RTC for the (i) Management official means any that it or any person performing services benefit of insured depositors; or shareholder, employee or partner who under an FDIC contract has any of the controls a company and any individual (3) A loan or advance from an insured disqualifying conditions identified in who directs the day-to-day operations of depository institution which is paragraph (a) of this section. Such a company. With respect to a currently owed to the FDIC, RTC, FSLIC notification shall contain a detailed partnership whose management or their successors, or the BIF, the SAIF, description of the disqualifying committee or executive committee has the FRF or the funds maintained by the condition and may include a statement responsibility for the day-to-day RTC for the benefit of insured of how the contractor intends to resolve operations of the partnership, depositors, where there has been a such condition. The FDIC, after receipt management official means only a failure to comply with the terms to such of such notification or other discovery member of such committee but, if no an extent that the collateral securing the of the contractor’s disqualifying such committee exists, management loan or advance was foreclosed upon, condition, shall take such action as it official means each of the general resulting in a loss in excess of $50,000. determines is in the FDIC’s best partners. § 366.3 Appropriate officials. interests, including that: (j) Offer means a proposal to provide (1) The FDIC may notify the (a) The General Counsel of the FDIC, services to the FDIC. For law firms or contractor in writing of the corrective or the designee of the General Counsel, sole practitioner lawyers, ‘‘offer’’ also actions, if any, which the contractor shall administer the provisions of this means the application submitted by the must take to eliminate the disqualifying part with respect to contracts involving law firm to the FDIC. condition. Corrective actions must be (k) Pattern or practice of defalcation the provision of services by law firms or completed by the contractor not later regarding obligations means two or sole practitioner lawyers. than 30 days after notification is mailed more instances in which: (b) The FDIC Executive Secretary, or by the FDIC unless the FDIC, at its sole (1) A loan or advance from an insured the designee of the Executive Secretary, discretion, determines that it will be in depository institution is in default for shall administer the provisions of this the best interests of the FDIC to grant ninety (90) or more days as to payment part with respect to all other contracts. the contractor an extension of time in of principal, interest, or a combination § 366.4 Disqualification of contractors. which to complete such corrective thereof and there remains a legal action; obligation to pay an amount in excess of (a) Disqualifying conditions. No (2) The FDIC may immediately $50,000; or person shall perform services under an declare any contracts with such (2) A loan or advance from an insured FDIC contract and no contractor shall contractor in default, terminate the depository institution where there has enter into any contract with the FDIC if contracts, and order an immediate been a failure to comply with the terms that person or contractor: transfer of duties and responsibilities to such an extent that the collateral (1) Has been convicted of any felony; under the contracts; or securing the loan or advance was (2) Has been removed from, or (3) The FDIC may declare any foreclosed upon, resulting in a loss in prohibited from participating in the contracts with such contractor in default excess of $50,000 to the insured affairs of, any insured depository and temporarily waive such default in depository institution. institution pursuant to any final order to allow an orderly transfer of (l) Person means an individual or enforcement action by the Office of the duties and responsibilities under the company. Comptroller of the Currency, the Office contracts. (m) RTC means the former Resolution of Thrift Supervision, the Board of (d) Reconsideration of decisions. Trust Corporation in any of its Governors of the Federal Reserve Decisions issued by the FDIC may be capacities. System, or the Federal Deposit reconsidered upon application by an (n) Subcontractor means a person that Insurance Corporation or their affected party to the Chairman or the enters into a contract with an FDIC successors; Chairman’s designee. Such requests 9598 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations shall be in writing and contain the bases The request may provide a proposal for and such other information as the FDIC for the request. The FDIC, at its elimination of the conflict or request a may deem appropriate to permit it to discretion and after determining that it waiver of the conflict. The FDIC may make a determination with respect to is in its best interests, may stay any perform a pre-bid review of conflicts of disqualifying conditions or conflicts of corrective or other actions ordered by it interest only if it first determines, at its interest. The Representations and pending reconsideration of a decision. sole discretion, that the participation of Certifications Form shall require that the contractor in the bidding process is the contractor provide the following: § 366.5 Contractor conflicts of interest. necessary to provide adequate (1) Certifications that, to the best of (a) General. The FDIC will not award competition. the contractor’s knowledge, the contracts to contractors that have (d) Conflicts of interest that arise or contractor is not disqualified from conflicts of interest associated with a are discovered after contract award. A service on behalf of the FDIC because of particular contract or permit contractors contractor shall notify the FDIC in the existence of any of the conditions to continue performance under existing writing within 10 days after discovering identified in § 366.4(a), or conflicts of contracts when such contractors have that it has a conflict of interest. Such interest as defined in § 366.2(c)(1) conflicts of interest, unless such notification shall contain a detailed through (3), subject to the contractor’s conflicts are eliminated by the description of the conflict of interest request for waiver of a conflict of contractor or are waived by the and state how the contractor intends to interest or proposal for elimination of a appropriate FDIC official. eliminate the conflict. The FDIC, after conflict of interest as described in (b) Waivers. Waivers of conflicts of receipt of such notification or other § 366.5; interest will only be granted when, in discovery of the contractor’s conflict or (2) A list and description of any light of all relevant circumstances, the potential conflict of interest, shall take instance during the ten (10) years interests of the FDIC in the contractor’s such action as it determines is in the preceding the submission of the offer in participation outweigh the concern that FDIC’s best interests, including that: which the contractor or any company a reasonable person may question the (1) The FDIC may notify the under the contractor’s control defaulted integrity of the FDIC’s operations. contractor in writing of its finding as to on a material obligation to any insured (c) Conflicts of interest arising prior to whether a conflict of interest exists and depository institution; contract award (1) Requests for review the basis for such determination; (3) The contractor’s agreement that it of conflicts of interest. (i) A contractor, whether or not a waiver will be granted; will not allow any employee, agent, or with its offer, may request a or whether corrective actions may be subcontractor to perform services under determination as to the existence of a taken in order to eliminate the conflict the proposed contract with the FDIC conflict of interest, may request that the of interest. Corrective actions must be unless the contractor first verifies with conflict of interest, if any, be waived in completed by the contractor not later each such employee, agent, or accordance with paragraph (b) of this than 30 days after notification is mailed subcontractor that, to the best of such section, or may propose how the by the FDIC unless the FDIC, at its sole person’s knowledge, such person: contractor could eliminate the conflict. discretion, determines that it is in the (i) Is not disqualified from performing (ii) If after submitting an offer, but best interests of the FDIC to grant the services under the FDIC contract prior to award, a contractor discovers contractor an extension in which to because of the existence of any of the that it has a conflict, it shall notify the complete such corrective action; conditions identified in § 366.4(a); FDIC in writing within 10 days or prior (2) The FDIC may immediately (ii) Has no conflicts of interest as to award, whichever is earlier. The declare any affected contracts with such defined in § 366.2(c)(1) through (3), contractor, with its notice, may make contractor in default, terminate the subject to a request by the contractor for such requests or proposals regarding the contracts, and order an immediate a conflict of interest waiver or proposal conflict or potential conflict as are transfer of duties and responsibilities for the elimination of a conflict of described in paragraph (c)(1)(i) of this under such contracts; or interest as set forth in § 366.5; and section. (3) The FDIC may declare any affected (iii) Has not, during the ten (10) years (2) Review by the FDIC. (i) Subject to contract with such contractor in default preceding the submission of the offer, the restrictions set forth in paragraphs and temporarily waive such default in defaulted on a material obligation to any (c)(2)(ii) and (c)(3) of this section, the order to allow an orderly transfer of insured depository institution; and appropriate FDIC official, at his or her duties and responsibilities under such (4) Any other information which the sole discretion, may determine whether contract. FDIC may deem appropriate, the scope a conflict of interest exists, may waive (e) Reconsideration of decisions. of which will be dependent on the the conflict of interest in accordance Decisions issued pursuant to this part particular contract under consideration. with paragraph (b) of this section, or may be reconsidered by the Chairman or (b) Subsequent submissions. During may approve in writing a contractor’s the Chairman’s designee upon the term of the contract, the contractor proposal to eliminate a conflict of application by the contractor. Such shall: interest. requests shall be in writing and shall (1) Verify the information described (ii) For contractors other than law contain the bases for the request. The in paragraph (a)(3) of this section for firms and sole practitioner lawyers, the FDIC, at its discretion and after any employee, agent, or subcontractor FDIC may consider a contractor’s determining that it is in its best who will perform services under the conflict or potential conflict of interest interests, may stay any corrective or contract for whom such information has only if the FDIC first determines that the other actions ordered by the FDIC not been previously verified, prior to contractor’s offer is the most pending reconsideration of a decision. such employee, agent, or subcontractor advantageous of all received. performing services under the contract; (3) Pre-bid requests and pre-bid § 366.6 Information required to be and review for contractors other than law submitted. (2) Immediately notify the FDIC if any firms and sole practitioner lawyers. A (a) Initial submission. Every offer of the information submitted pursuant request for pre-bid review must be in submitted to the FDIC by any contractor to paragraph (a) of this section was writing and describe in detail the shall include a completed incorrect at time of submission or has conflict or potential conflict of interest. Representations and Certifications Form subsequently become incorrect. Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9599

(c) Failure to provide information. A Violators are subject to criminal By Order of the Board of Directors. contractor that fails to provide any sanctions under Title 18 of the United Dated at Washington, D.C. this 6th day of required information or misstates a States Code. February 1996. material fact may be determined by the (c) Pursuant to 18 U.S.C. 1001, Federal Deposit Insurance Corporation. FDIC to be ineligible for the award of whoever knowingly and willingly Jerry L. Langley, the FDIC contract for which such falsifies a material fact, makes a false Executive Secretary. information is required or to be in statement, or utilizes a false writing in Concurred in this 27th day of February default with respect to any existing connection with an FDIC contract is 1996. contract for which such information is subject to criminal sanctions under Title Stephen D. Potts, required. 18 of the United States Code. Director, Office of Government Ethics. (d) Retention of information. A (d) A contractor that violates the contractor shall retain the information provisions of this section may be [FR Doc. 96–5254 Filed 3–8–96; 8:45 am] upon which it relied in preparing its determined by the FDIC to be ineligible BILLING CODE 6714±01±P certification(s) during the term of the for the award of an FDIC contract and contract and for a period of three (3) the FDIC may determine that such years following the termination or contractor is in default under any DEPARTMENT OF TRANSPORTATION expiration of the contract and shall existing FDIC contract. Federal Aviation Administration make such information available for § 366.8 Confidentiality of information. review by the FDIC upon request. 14 CFR Part 39 (e) Delayed compliance in (a) A contractor has a duty to protect emergencies. In emergencies, when confidential information and shall not [Docket No. 94±NM±72±AD; Amendment unforeseeable circumstances make it use or allow the use of confidential 39±9533; AD 96±05±07] necessary to contract immediately in information to further a private interest Airworthiness Directives; Boeing order to protect FDIC personnel or other than as contemplated by the Model 757 Series Airplanes Equipped property, the FDIC may authorize contract. with Pratt & Whitney Engines delayed compliance with this part. (b) If a contractor fails to comply with (f) Additional contractual the provisions of this section, the FDIC AGENCY: Federal Aviation requirements. In addition to the may: Administration, DOT. (1) Declare the contractor ineligible provisions of this part, the FDIC may ACTION: Final rule. include in its contract provisions, for the award of any FDIC contract not conditions and limitations, including yet awarded; or SUMMARY: This amendment supersedes additional standards for contractor (2) Declare the contractor in default an existing airworthiness directive (AD), fitness and integrity. under any existing contract with the applicable to certain Boeing Model 757 FDIC. series airplanes, that currently requires § 366.7 Minimum ethical standards for (c) As used in this section, independent contractors. repetitive inspections to detect cracking ‘‘confidential information’’ means in the midspar fuse pins and (a) In connection with the information that a contractor obtains replacement of certain fuse pins. This performance of any contract and during from the FDIC or a third party in amendment requires inspection of the term of such contract, a contractor, connection with an FDIC contract but certain fuse pins, and replacement of shall not: does not include information generally certain fuse pins with certain other fuse (1) Accept or solicit for itself or others available to the public unless the pins. This amendment also requires favors, gifts, or other items of monetary information becomes available to the inspections of refinished straight fuse value from any person the contractor public as a result of unauthorized pins and replacement of cracked knows is seeking official action from the disclosure by the contractor. refinished straight fuse pins with certain FDIC in connection with the contract or other straight fuse pins. This has interests which may be substantially § 366.9 Liability for rescission or amendment is prompted by the affected by the contractor’s performance termination. development of new corrosion-resistant or nonperformance of duties to the The FDIC may seek its actual, direct, steel fuse pins. The actions specified by FDIC; and consequential damages from a this AD are intended to prevent cracking (2) Use improperly or allow the contractor whose disqualifying of the midspar fuse pins, which may improper use of FDIC property, or conditions, conflicts of interest, failure lead to separation of the strut and property over which the contractor has to comply with information submission engine from the wing of the airplane. supervision or charge by reason of the or confidentiality requirements, or contract; failure to comply with the minimum DATES: Effective April 10, 1996. (3) Use its status as an FDIC ethical standards for independent The incorporation by reference of contractor for its personal, financial or contractors were the basis for rescission certain publications listed in the business benefit or for the benefit of a or termination of a contract between the regulations is approved by the Director third party, except as contemplated by FDIC and the contractor. This right to of the Federal Register as of April 10, the contract; terminate or rescind and these remedies 1996. (4) Make any promise or commitment are cumulative and in addition to any ADDRESSES: The service information on behalf of the FDIC not authorized by other remedies or rights the FDIC may referenced in this AD may be obtained the FDIC. have under the terms of the contract, at from Boeing Commercial Airplane (b) Pursuant to 18 U.S.C. 201, law, or otherwise. Group, P.O. Box 3707, Seattle, whoever acts for or on behalf of the Washington 98124–2207. This FDIC is deemed to be a public official § 366.10 Finality of determination. information may be examined at the and public officials are prohibited from Any determination made by the FDIC Federal Aviation Administration (FAA), soliciting or accepting anything of value pursuant to this part is at the FDIC’s Transport Airplane Directorate, Rules in return for being influenced in the sole discretion and shall not be subject Docket, 1601 Lind Avenue SW., Renton, performance of official actions. to further review. Washington; or at the Office of the 9600 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations

Federal Register, 800 North Capitol estimates that 237 airplanes of U.S. List of Subjects in 14 CFR Part 39 Street, NW., suite 700, Washington, DC. registry will be affected by this AD. Air transportation, Aircraft, Aviation FOR FURTHER INFORMATION CONTACT: The actions that are currently safety, Incorporation by reference, Carrie Sumner, Aerospace Engineer, required by AD 93–16–09 take Safety. Airframe Branch, ANM–120S, FAA, approximately 8 work hours per fuse Transport Airplane Directorate, Seattle pin; there are 4 fuse pins per airplane. Adoption of the Amendment Aircraft Certification Office, 1601 Lind The average labor rate is approximately Accordingly, pursuant to the Avenue, SW., Renton, Washington $60 per work hour. Based on these authority delegated to me by the 98055–4056; telephone (206) 227–2778; figures, the cost impact of the actions Administrator, the Federal Aviation fax (206) 227–1181. currently required by AD 93–16–09 on Administration amends part 39 of the U.S. operators is estimated to be SUPPLEMENTARY INFORMATION: A Federal Aviation Regulations (14 CFR $455,040, or $1,920 per airplane, per part 39) as follows: proposal to amend part 39 of the Federal cycle. However, since the integrity and Aviation Regulations (14 CFR part 39) strength of the new steel fuse pins PART 39ÐAIRWORTHINESS by superseding AD 93–16–09, permit longer inspection intervals, the DIRECTIVES amendment 39–8666 (58 FR 45044, cost impact for these inspections will August 26, 1993), which is applicable to actually be lessened (since the 1. The authority citation for part 39 certain Boeing Model 757 series inspections are not required to be continues to read as follows: Authority: 49 USC 106(g), 40113, 44701. airplanes, was published as a performed as frequently as they were supplemental notice of proposed previously required under AD 93–16– § 39.13 [Amended] rulemaking in the Federal Register on 09). 2. Section 39.13 is amended by June 8, 1995 (60 FR 30208). The action The new actions that are required by proposed to require: removing amendment 39–8666 (58 FR this new AD will take approximately 56 45044, August 26, 1993), and by adding 1. Inspections to detect cracking of work hours per fuse pin to accomplish, straight fuse pins, a new airworthiness directive (AD), at an average labor rate of $60 per work amendment 39–9533, to read as follows: 2. Replacement of cracked straight hour (There are 4 fuse pins per fuse pins with either new 15–5PH airplane). Required parts will be 96–05–07 Boeing: Amendment 39–9533. corrosion- resistant steel fuse pins or Docket 94–NM–72–AD. Supersedes AD provided by the manufacturer at no cost 93–16–09, Amendment 39–8666. like pins, to the operator. Based on these figures, Applicability: Model 757 series airplanes 3. Replacement of bulkhead fuse pins the cost impact on U.S. operators of the with new 15–5PH corrosion-resistant equipped with Pratt & Whitney engines, new requirements of this AD is certificated in any category. steel fuse pins, and estimated to be $3,185,280, or $13,440 4. Repetitive inspections of newly- Note 1: This AD applies to each airplane per airplane. identified in the preceding applicability installed fuse pins. (Installation of the The cost impact figures discussed provision, regardless of whether it has been new 15–5PH corrosion-resistant steel above are based on assumptions that no otherwise modified, altered, or repaired in fuse pins would allow a longer operator has yet accomplished any of the area subject to the requirements of this repetitive inspection interval than was the requirements of this AD action, and AD. For airplanes that have been modified, previously provided by AD 93–16–09.) that no operator would accomplish altered, or repaired so that the performance Interested persons have been afforded those actions in the future if this AD of the requirements of this AD is affected, the an opportunity to participate in the were not adopted. owner/operator must request approval for an making of this amendment. Due alternative method of compliance in The regulations adopted herein will accordance with paragraph (f) of this AD. The consideration has been given to the not have substantial direct effects on the request should include an assessment of the comments received. States, on the relationship between the effect of the modification, alteration, or repair All of the commenters support the national government and the States, or on the unsafe condition addressed by this proposed rule. on the distribution of power and AD; and, if the unsafe condition has not been One of the commenters, however, responsibilities among the various eliminated, the request should include requests that the FAA consider revising levels of government. Therefore, in specific proposed actions to address it. this AD to include terminating action accordance with Executive Order 12612, Compliance: Required as indicated, unless accomplished previously. when Boeing finalizes its proposed it is determined that this final rule does Note 2: Inspections accomplished prior to pylon modification program. The not have sufficient federalism the effective date of this amendment in commenter considers that that program, implications to warrant the preparation accordance with the procedures described in together with the replacement of the of a Federalism Assessment. Boeing Service Bulletin 757–54A0019, fuse pins, should constitute terminating For the reasons discussed above, I Revision 4, dated May 27, 1993; Revision 3, action for the repetitive inspections that certify that this action (1) is not a dated March 26, 1992; or Revision 2, dated are required by this AD. The FAA ‘‘significant regulatory action’’ under October 11, 1989; are considered acceptable acknowledges this comment, and may Executive Order 12866; (2) is not a for compliance with the applicable inspection specified in this amendment. consider additional rulemaking once the ‘‘significant rule’’ under DOT Regulatory Policies and Procedures (44 To prevent cracking of the midspar fuse manufacturer’s pylon modification pins, which may lead to separation of the program has been developed, reviewed, FR 11034, February 26, 1979); and (3) strut and engine from the wing of the and approved. will not have a significant economic airplane, accomplish the following: After careful review of the available impact, positive or negative, on a (a) For airplanes equipped with straight data, including the comments noted substantial number of small entities fuse pins, part number (P/N) 311N5067–1: above, the FAA has determined that air under the criteria of the Regulatory Prior to the accumulation of 3,800 total flight safety and the public interest require the Flexibility Act. A final evaluation has cycles on the straight fuse pin, perform an adoption of the rule as proposed. been prepared for this action and it is eddy current inspection to detect cracking in the straight fuse pins, in accordance with There are approximately 273 Model contained in the Rules Docket. A copy Boeing Service Bulletin 757–54A0019, 757 series airplanes equipped with Pratt of it may be obtained from the Rules Revision 5, dated March 17, 1994. & Whitney engines of the affected Docket at the location provided under (1) If no cracking is detected, repeat the design in the worldwide fleet. The FAA the caption ADDRESSES. inspection thereafter at intervals not to Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9601 exceed 1,000 flight cycles on the straight fuse with the procedures described in the service reference was approved by the Director of the pin. bulletin. Repeat the inspection thereafter at Federal Register in accordance with 5 U.S.C. (2) If any cracking is detected, prior to intervals not to exceed 3,500 flight cycles on 552(a) and 1 CFR part 51. Copies may be further flight, accomplish the requirements of that newly installed 15–5PH fuse pin. obtained from Boeing Commercial Airplane either paragraph (a)(2)(i) or (a)(2)(ii) of this (c) For airplanes equipped with bulkhead Group, P.O. Box 3707, Seattle, Washington AD. fuse pins, P/N 311N5211–1: Within 3,000 98124–2207. Copies may be inspected at the (i) Replace the cracked straight fuse pin flight cycles after the effective date of this FAA, Transport Airplane Directorate, 1601 with a new straight fuse pin, P/N 311N5067– AD, replace the bulkhead fuse pins with 15– Lind Avenue, SW., Renton, Washington; or at 1. Prior to the accumulation of 3,800 total 5PH fuse pins, P/N 311N5217–1, in the Office of the Federal Register, 800 North flight cycles on that newly installed straight accordance with Boeing Service Bulletin Capitol Street, NW., suite 700, Washington, fuse pin, perform an eddy current inspection 757–54A0019, Revision 5, dated March 17, DC. to detect cracking in that straight fuse pin, in 1994, and accomplish the requirements of (i) This amendment becomes effective on accordance with the service bulletin. Repeat paragraph (d) of this AD. April 10, 1996. the inspection thereafter at intervals not to (d) For airplanes equipped with 15–5PH exceed 1,000 flight cycles on that newly fuse pins: Prior to the accumulation of 14,000 Issued in Renton, Washington, on March 1, installed straight fuse pin. Or total flight cycles on the 15–5PH fuse pins, 1996. (ii) Replace the cracked straight fuse pin perform an eddy current inspection to detect Darrell M. Pederson, with a new 15–5PH fuse pin, P/N 311N5217– cracking in those 15–5PH fuse pins, in Acting Manager, Transport Airplane 1. Prior to the accumulation of 14,000 total accordance with the procedures described in Directorate, Aircraft Certification Service. flight cycles on that newly installed 15–5PH Boeing Service Bulletin 757–54A0019, [FR Doc. 96–5369 Filed 3–8–96; 8:45 am] fuse pin, perform an eddy current inspection Revision 5, dated March 17, 1994. BILLING CODE 4910±13±U to detect cracking in that newly installed 15– (1) If no cracking is detected, repeat the 5PH fuse pin, in accordance with the inspection thereafter at intervals not to procedures described in the service bulletin. exceed 3,500 flight cycles on the 15–5PH fuse Repeat the inspection thereafter at intervals pin. 14 CFR Part 39 not to exceed 3,500 flight cycles on that (2) If any cracking is detected, accomplish newly installed 15–5PH fuse pin. the requirements of both paragraphs (d)(2)(i) [Docket No. 94±NM±71±AD; Amendment (b) For airplanes equipped with refinished and (d)(2)(ii) of this AD. 39±9534; AD 96±05±08] straight fuse pins, P/N 311N5067–1: Prior to (i) Prior to further flight, replace any the accumulation of 1,000 total flight cycles cracked 15–5PH fuse pin with a new 15–5PH Airworthiness Directives; Boeing on the refinished straight fuse pin, perform fuse pin, P/N 311N5217–1, in accordance Model 757 Series Airplanes Equipped an eddy current inspection to detect cracking with the procedures described in the service With Rolls Royce Engines in the refinished straight fuse pins, in bulletin. And accordance with Boeing Service Bulletin (ii) Prior to the accumulation of 14,000 757–54A0019, Revision 5, dated March 17, total flight cycles on that newly installed 15– AGENCY: Federal Aviation 1994. 5PH fuse pin, perform an eddy current Administration, DOT. (1) If no cracking is detected, repeat the inspection to detect cracking in that newly inspection thereafter at intervals not to installed 15–5PH fuse pin, in accordance ACTION: Final rule. exceed 1,000 flight cycles on the refinished with the procedures described in the service straight fuse pin. bulletin. Repeat the inspection thereafter at SUMMARY: This amendment supersedes (2) If any cracking is detected, prior to intervals not to exceed 3,500 flight cycles on an existing airworthiness directive (AD), further flight, accomplish the requirements of that newly installed 15–5PH fuse pin. applicable to certain Boeing Model 757 either paragraph (b)(2)(i), (b)(2)(ii), or (e) Fuse pins must be of the same type on series airplanes, that currently requires (b)(2)(iii) of this AD, in accordance with the the same strut. For example, a steel fuse pin repetitive inspections to detect cracking service bulletin. having P/N 311N5067–1 may not be installed in the midspar fuse pins and (i) Replace the cracked refinished straight on the same strut that has a corrosion- replacement of certain fuse pins. This fuse pin with a crack-free refinished straight resistant steel (CRES) fuse pin having P/N fuse pin, P/N 311N5067–1. Prior to the 311N5217–1 installed on that strut. However, amendment adds requirements to accumulation of 1,000 total flight cycles on fuse pins on one strut may differ from those inspect straight fuse pins and replace that newly installed refinished straight fuse on another strut, provided the fuse pins are any cracked straight fuse pins with pin, perform an eddy current inspection to not of mixed types on the same strut. either new corrosion-resistant steel fuse detect cracking in that newly installed (f) An alternative method of compliance or pins or like pins; replace bulkhead fuse refinished straight fuse pin, in accordance adjustment of the compliance time that pins with new corrosion-resistant steel with the procedures described in the service provides an acceptable level of safety may be fuse pins; and repetitively inspect bulletin. Repeat this inspection thereafter at used if approved by the Manager, Seattle newly installed fuse pins. This intervals not to exceed 1,000 flight cycles on Aircraft Certification Office (ACO), FAA, amendment is prompted by the the newly installed refinished straight fuse Transport Airplane Directorate. Operators pin. Or shall submit their requests through an development of new corrosion-resistant (ii) Replace the cracked refinished straight appropriate FAA Principal Maintenance steel fuse pins. The actions specified by fuse pin with a new straight fuse pin, P/N Inspector, who may add comments and then this AD are intended to prevent cracking 311N5067–1. Prior to the accumulation of send it to the Manager, Seattle ACO. of the midspar fuse pins, which may 3,800 total flight cycles on that newly Note 3: Information concerning the lead to separation of the strut and installed straight fuse pin, perform an eddy engine from the wing of the airplane. current inspection to detect cracking in that existence of approved alternative methods of compliance with this AD, if any, may be newly installed straight fuse pin, in DATES: Effective April 10, 1996. obtained from the Seattle ACO. accordance with the service bulletin. Repeat The incorporation by reference of the inspection thereafter at intervals not to (g) Special flight permits may be issued in certain publications listed in the exceed 1,000 flight cycles on that newly accordance with sections 21.197 and 21.199 installed straight fuse pin. Or of the Federal Aviation Regulations (14 CFR regulations is approved by the Director (iii) Replace the cracked refinished straight 21.197 and 21.199) to operate the airplane to of the Federal Register as of April 10, fuse pin with a new 15–5PH fuse pin, P/N a location where the requirements of this AD 1996. 311N5217–1. Prior to the accumulation of can be accomplished. 14,000 total flight cycles on that newly (h) The inspections and replacements shall ADDRESSES: The service information installed 15–5PH fuse pin, perform an eddy be done in accordance with Boeing Service referenced in this AD may be obtained current inspection to detect cracking in that Bulletin 757–54A0019, Revision 5, dated from Boeing Commercial Airplane newly installed 15–5PH pin, in accordance March 17, 1994. This incorporation by Group, P.O. Box 3707, Seattle, 9602 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations

Washington 98124–2207. This As for Item 1, the applicability of an that, whenever it plans to revise Service information may be examined at the AD takes precedence over the effectivity Bulletin 757–54A0020, the procedures Federal Aviation Administration (FAA), listing of a service bulletin. Further, the for inspection, removal, and Transport Airplane Directorate, Rules inspection and replacement procedures replacement of the 15–5PH fuse pins be Docket, 1601 Lind Avenue, SW., outlined in the referenced Boeing included. Renton, Washington; or at the Office of service bulletin can be accomplished on One commenter requests that the Federal Register, 800 North Capitol any Model 757, and are not specifically paragraph (a)(2)(ii) of the proposal be Street, NW., suite 700, Washington, DC. tailored only to airplanes specified in revised to indicate that installation of FOR FURTHER INFORMATION CONTACT: the effectivity listing of the service the new 15–5PH fuse pins constitutes Carrie Sumner, Aerospace Engineer, bulletin. terminating action for the inspections of Airframe Branch, ANM–120S, FAA, As for Item 2, the FAA is not aware the older style fuse pins. This Transport Airplane Directorate, Seattle of any current maintenance program commenter asserts that the new pins Aircraft Certification Office, 1601 Lind requirement that includes the have not yet been shown to be unsafe Avenue, SW., Renton, Washington inspection and replacement of 15–5PH in-service. Further, once the new 15– 98055–4056; telephone (206) 227–2778; fuse pins at the intervals set forth in this 5PH pins are installed, they can be fax (206) 227–1181. AD. The FAA established the intervals regularly inspected under the operator’s based on the manufacturer’s analysis FAA-approved maintenance program. SUPPLEMENTARY INFORMATION: A and testing, which demonstrated that The FAA does not concur. As proposal to amend part 39 of the Federal the 15–5PH fuse pin has a fatigue indicated earlier, the manufacturer has Aviation Regulations (14 CFR part 39) threshold of 14,000 flight cycles. This demonstrated, by analysis supported by by superseding AD 93–16–08, identified threshold is applicable to all tests, that the 15–5PH fuse pin has a amendment 39–8665 (58 FR 45041, 15–5PH fuse pins, regardless of whether fatigue threshold of 14,000 flight cycles. August 26, 1993), which is applicable to or not the airplane on which they are In fact, in Revision 5 of Boeing Service certain Boeing Model 757 series installed is listed in the referenced Bulletin 757–54A0020, which was airplanes, was published as a Boeing service bulletin. If the fuse pins referenced in the proposed AD, the supplemental notice of proposed are not replaced or inspected at the manufacturer recommends that all 15– rulemaking in the Federal Register on times required by this AD, the safety 5PH fuse pins be replaced with new May 18, 1995 (60 FR 26697). That action concerns associated with fracture of the pins after 14,000 flight cycles. As an proposed to add a requirement to fuse pins will still exist. The FAA option, at 14,000 flight cycles, the 15– inspect straight fuse pins and replace considers issuance of this AD to be 5PH fuse pins may be examined for any cracked straight fuse pins with necessary, since AD’s are the means by cracks and, if no cracking is evident, either new corrosion-resistant steel fuse which the accomplishment of they may be continually reexamined at pins or like pins; replace bulkhead fuse procedures and adherence to specific 3,500 flight cycle intervals. The FAA pins with new corrosion-resistant steel necessary compliance times are made has determined that this inspection fuse pins; and repetitively inspect mandatory. schedule is both appropriate and newly installed fuse pins. This same commenter contends that warranted to address the unsafe Interested persons have been afforded the manufacturer should revise the condition that arises from the an opportunity to participate in the referenced Boeing service bulletin to consequences of fractured fuse pins. making of this amendment. Due include procedures for eddy current Also, as indicated earlier, the FAA is consideration has been given to the inspections of the 15–5PH fuse pins, as not aware of any current maintenance comments received. well as instructions for removal and program requirement that includes the One commenter, an affected operator, replacement of those pins. The revised inspection and replacement of 15–5PH requests that the applicability of the service bulletin should also include a fuse pins at the intervals set forth in this proposed rule be revised to exclude any listing of all applicable airplanes. The AD. The FAA finds that the issuance of new airplanes that are delivered with commenter requests that the proposed this AD is necessary in order to ensure the new, improved fuse pins already rule be changed to reference the revised that the accomplishment of the installed. This commenter presents two service bulletin. procedures and the adherence to reasons for this request: The FAA does not concur that a specific compliance times are achieved. 1. The commenter recently received change to the rule is necessary. As for After careful review of the available airplanes that were already equipped the procedures for inspections, the data, including the comments noted with the new (15–5PH) mid spar fuse referenced Boeing service bulletin above, the FAA has determined that air pins. These particular airplanes are not specifies that they can be found in the safety and the public interest require the included in the effectivity listing of the 757 Nondestructive Test (NDT) Manual, adoption of the rule as proposed. Boeing service bulletin that was Part 6, Subject 54–40–01, Figure 1 (this There are approximately 306 Model referenced in the proposed rule. Since is noted on page 16 of the Boeing 757 series airplanes equipped with Rolls applicability of the proposed rule would service bulletin). As for removal and Royce engines of the affected design in include all Model 757’s equipped with replacement procedures, Figure 4 of the the worldwide fleet. The FAA estimates Rolls Royce engines, the commenter’s referenced Boeing service bulletin that 119 airplanes of U.S. registry will airplanes would be subject to the displays a detail of the 15–5PH fuse pin be affected by this proposed AD. requirements of the AD, even though installation that can be used in The inspections that were previously these airplanes were not listed in the accomplishing those actions. As for the required by AD 93–16–08, and retained referenced service bulletin. listing of applicable airplanes, while it in this new AD, take approximately 8 2. New airplanes delivered with the may be convenient for operators to have work hours per fuse pin; there are 4 fuse new fuse pins will be inspected, and all affected airplanes listed in the pins per airplane. The average labor rate any replacement of fuse pins can be service bulletin, the FAA reiterates that is approximately $60 per work hour. made, under the regular maintenance the applicability statement of an AD Based on these figures, the current cost program. takes precedence over the effectivity impact of these inspections on U.S. The FAA does not concur with the listing of any service bulletin. The FAA operators is estimated to be $228,480, or commenter’s request. does intend to recommend to Boeing $1,920 per airplane, per inspection Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9603 cycle. However, since the integrity and PART 39ÐAIRWORTHINESS bulletin. Repeat the inspection thereafter at strength of the new steel fuse pins DIRECTIVES intervals not to exceed 1,500 flight cycles on permit longer inspection intervals, the the newly installed straight fuse pin. Or cost impact of these inspections will be 1. The authority citation for part 39 (ii) Replace the cracked straight fuse pin continues to read as follows: with a new 15–5PH fuse pin, P/N 311N5217– lessened, since the inspections are not 1, and prior to the accumulation of 14,000 required to be performed as frequently Authority: 49 USC 106(g), 40113, 44701. total flight cycles on the newly installed 15– as they were previously required under 5PH fuse pin, perform an eddy current AD 93–16–08. § 39.13 [Amended] inspection to detect cracking in the newly The replacement that is required by 2. Section 39.13 is amended by installed pin, in accordance with the procedures described in the service bulletin. this new AD will take approximately 56 removing amendment 39–8665 (58 FR 45041, August 26, 1993), and by adding Repeat the inspection thereafter at intervals work hours per fuse pin, at an average not to exceed 3,500 flight cycles on the newly labor rate of $60 per work hour. a new airworthiness directive (AD), amendment 39–9534, to read as follows: installed fuse pin. Required parts will be provided by the (b) For airplanes equipped with refinished manufacturer at no cost to the operator. 96–05–08 Boeing: Amendment 39–9534. straight fuse pins, P/N 311N5067–1: Perform Based on these figures, the cost impact Docket 94–NM–71–AD. Supersedes AD an eddy current inspection to detect cracking of the replacement action on U.S. 93–16–08, Amendment 39–8665. in those fuse pins at intervals not to exceed Applicability: Model 757 series airplanes 1,500 flight cycles on the refinished fuse operators is estimated to be $1,599,360, pins, in accordance with Boeing Service or $13,440 per airplane. equipped with Rolls Royce engines, certificated in any category. Bulletin 757–54A0020, Revision 5, dated The cost impact figures discussed March 17, 1994. Note 1: This AD applies to each airplane (1) If no cracking is detected, repeat the above are based on assumptions that no identified in the preceding applicability operator has yet accomplished any of inspection thereafter at intervals not to provision, regardless of whether it has been exceed 1,500 flight cycles on the refinished the proposed requirements of this AD modified, altered, or repaired in the area straight fuse pin. action, and that no operator would subject to the requirements of this AD. For (2) If any cracking is detected, prior to accomplish those actions in the future if airplanes that have been modified, altered, or further flight, accomplish the requirements of this AD were not adopted. repaired so that the performance of the either paragraph (b)(2)(i), (b)(2)(ii), or requirements of this AD is affected, the (b)(2)(iii) of this AD, in accordance with the The regulations adopted herein will owner/operator must request approval for an not have substantial direct effects on the service bulletin. alternative method of compliance in (i) Replace the cracked refinished straight States, on the relationship between the accordance with paragraph (f) of this AD. The fuse pin with a crack-free refinished straight national government and the States, or request should include an assessment of the fuse pin, P/N 311N5067–1, and perform an on the distribution of power and effect of the modification, alteration, or repair eddy current inspection to detect cracking in responsibilities among the various on the unsafe condition addressed by this the refinished straight fuse pin at intervals levels of government. Therefore, in AD; and, if the unsafe condition has not been not to exceed 1,500 flight cycles, in accordance with Executive Order 12612, eliminated, the request should include accordance with the procedures described in it is determined that this final rule does specific proposed actions to address it. the service bulletin. Or not have sufficient federalism Compliance: Required as indicated, unless (ii) Replace the cracked refinished straight accomplished previously. fuse pin with a new straight fuse pin, P/N implications to warrant the preparation 311N5067–1, and prior to the accumulation of a Federalism Assessment. Note 2: Inspections accomplished prior to the effective date of this amendment in of 5,000 total flight cycles on the newly For the reasons discussed above, I accordance with the procedures described in installed straight fuse pin, perform an eddy certify that this action (1) is not a Boeing Service Bulletin 757–54A0020, current inspection, in accordance with the ‘‘significant regulatory action’’ under Revision 4, dated May 27, 1993; Revision 3, service bulletin. Repeat the inspection thereafter at intervals not to exceed 1,500 Executive Order 12866; (2) is not a dated March 26, 1992; or Revision 2, dated flight cycles on the newly installed straight October 31, 1991; are considered acceptable ‘‘significant rule’’ under DOT fuse pin. Or for compliance with the applicable Regulatory Policies and Procedures (44 (iii) Replace the cracked refinished straight inspection specified in this amendment. FR 11034, February 26, 1979); and (3) fuse pin with a new 15–5PH fuse pin, P/N will not have a significant economic To prevent cracking of the midspar fuse 311N5217–1, and prior to the accumulation impact, positive or negative, on a pins, which may lead to separation of the of 14,000 total flight cycles on the newly substantial number of small entities strut and engine from the wing of the installed 15–5PH fuse pin, perform an eddy airplane, accomplish the following: current inspection to detect cracking in the under the criteria of the Regulatory (a) For airplanes equipped with straight Flexibility Act. A final evaluation has newly installed pin, in accordance with the fuse pins, part number (P/N) 311N5067–1: procedures described in the service bulletin. been prepared for this action and it is Prior to the accumulation of 5,000 total flight Repeat the inspection thereafter at intervals contained in the Rules Docket. A copy cycles on the straight fuse pin, perform an not to exceed 3,500 flight cycles on the newly of it may be obtained from the Rules eddy current inspection to detect cracking in installed fuse pin. Docket at the location provided under those fuse pins, in accordance with Boeing (c) For airplanes equipped with bulkhead the caption ADDRESSES. Service Bulletin 757–54A0020, Revision 5, fuse pins, P/N 311N5211–1: Within 3,000 dated March 17, 1994. flight cycles after the effective date of this List of Subjects in 14 CFR Part 39 (1) If no cracking is detected, repeat the AD, replace the bulkhead fuse pins with 15– inspection thereafter at intervals not to 5PH fuse pins, P/N 311N5217–1, in Air transportation, Aircraft, Aviation exceed 1,500 flight cycles on the straight fuse accordance with Boeing Service Bulletin safety, Incorporation by reference, pin. 757–54A0020, Revision 5, dated March 17, Safety. (2) If any cracking is detected, prior to 1994, and accomplish the requirements of further flight, accomplish the requirements of paragraph (d) of this AD. Adoption of the Amendment either paragraph (a)(2)(i) or (a)(2)(ii) of this (d) For airplanes equipped with 15–5PH Accordingly, pursuant to the AD. fuse pins: Prior to the accumulation of 14,000 (i) Replace the cracked straight fuse pin authority delegated to me by the total flight cycles on the 15–5PH fuse pins, with a new straight fuse pin, P/N 311N5067– perform an eddy current inspection to detect Administrator, the Federal Aviation 1, and prior to the accumulation of 5,000 cracking in those fuse pins, in accordance Administration amends part 39 of the total flight cycles on the newly installed with the procedures described in Boeing Federal Aviation Regulations (14 CFR straight fuse pin, perform an eddy current Service Bulletin 757–54A0020, Revision 5, part 39) as follows: inspection, in accordance with the service dated March 17, 1994. 9604 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations

(1) If no cracking is detected, repeat the 14 CFR Part 39 Washington 98055–4056; telephone inspection thereafter at intervals not to (206) 227–2146; fax (206) 227–1149. exceed 3,500 flight cycles on the fuse pin. [Docket No. 95±NM±156±AD; Amendment SUPPLEMENTARY INFORMATION: A (2) If any cracking is detected, accomplish 39±9535; AD 96±05±09] the requirements of paragraphs (d)(2)(i) and proposal to amend part 39 of the Federal (d)(2)(ii) of this AD. Airworthiness Directives; Airbus Model Aviation Regulations (14 CFR part 39) (i) Prior to further flight, replace any A300, A300±600, A310, A330, and A340 by superseding, amendment 39–9125 cracked 15–5PH fuse pin with a new 15–5PH Series Airplanes (60 FR 5564, January 30, 1995), which fuse pin, P/N 311N5217–1, in accordance is applicable to all Airbus Model A300, AGENCY: Federal Aviation with the procedures described in the service A300–600, A310, A330, and A340 series bulletin. And Administration, DOT. airplanes, was published as a Notice of (ii) Prior to the accumulation of 14,000 ACTION: Final rule. Proposed Rulemaking (NPRM) in the total flight cycles on the newly installed 15– Federal Register on October 26, 1995 SUMMARY: This amendment supersedes 5PH fuse pin, perform an eddy current (60 FR 54820). That NPRM proposed to an existing airworthiness directive (AD), inspection to detect cracking in the newly continue to require certain actions that is applicable to all Airbus Model installed pin, in accordance with the previously required by AD 95–01–51, A300, A300–600, A310, A330, and A340 procedures described in the service bulletin. specifically: Repeat the inspection thereafter at intervals series airplanes. The existing AD 1. the inspection of the sliding side not to exceed 3,500 flight cycles on the newly currently requires an inspection of the windows in the cockpit to identify the installed fuse pin. sliding side windows in the cockpit to part number of the windows; and (e) Fuse pins must be of the same type on identify suspect windows; and either 2. if suspect windows are installed, the same strut. For example, a steel fuse pin deactivation of the sliding window either deactivation of the sliding having P/N 311N5067–1 may not be installed defogging system; installation of window defogging system; or on the same strut that has a corrosion- thermo-sensitive indicators; or resistant steel (CRES) fuse pin having P/N installation of thermo-sensitive replacement of the window. This 311N5217–1 installed on that strut. However, indicators, daily inspections of those amendment adds a requirement to fuse pins on one strut may differ from those indicators, and deactivation of the replace suspect windows with on another strut, provided the fuse pins are defogging system, if necessary; or serviceable windows, which, when not of mixed types on the same strut. replacement of the window. accomplished, terminates the (f) An alternative method of compliance or The NPRM also proposed to require requirements of the AD. The actions adjustment of the compliance time that the eventual replacement of suspect specified by this amendment are provides an acceptable level of safety may be windows with serviceable windows. used if approved by the Manager, Seattle intended to prevent rupture of a cockpit This replacement of the windows would Aircraft Certification Office (ACO), FAA, sliding window and subsequent rapid constitute terminating action for the Transport Airplane Directorate. Operators decompression of the fuselage due to requirements of the AD. shall submit their requests through an fracture of the window as a result of Interested persons have been afforded appropriate FAA Principal Maintenance thermal stress created by overheating of an opportunity to participate in the Inspector, who may add comments and then the wires of the heating element in a making of this amendment. Due send it to the Manager, Seattle ACO. localized area. Note 3: Information concerning the consideration has been given to the DATES: existence of approved alternative methods of Effective April 10, 1996. comments received. compliance with this AD, if any, may be The incorporation by reference of One commenter supports the obtained from the Seattle ACO. Airbus All Operators Telex 30–01, proposal. Revision 2, dated listed in the (g) Special flight permits may be issued in The Air Transport Association (ATA) accordance with sections 21.197 and 21.199 regulations is approved by the Director of America, on behalf of its two member of the Federal Aviation Regulations (14 CFR of the Federal Register as of April 10, operators that are subject to this AD, 21.197 and 21.199) to operate the airplane to 1996. requests that the FAA withdraw the a location where the requirements of this AD The incorporation by reference of proposal. This commenter indicates that can be accomplished. Airbus All Operators Telex 30–01, dated these two U.S. operators have already (h) The actions shall be done in accordance December 22, 1994, listed in the replaced the subject cockpit sliding with Boeing Service Bulletin 757–54A0020, regulations, was approved previously by windows with approved alternative Revision 5, dated March 17, 1994. This the Director of the Federal Register as of parts on all of their affected airplanes. incorporation by reference was approved by February 14, 1994 (60 FR 5564, January Additionally, the commenter states that the Director of the Federal Register in 30, 1995). accordance with 5 U.S.C. 552(a) and 1 CFR the part numbered windows that ADDRESSES: The service information part 51. Copies may be obtained from Boeing prompted the airworthiness concern are Commercial Airplane Group, P.O. Box 3707, referenced in this AD may be obtained no longer manufactured or available for Seattle, Washington 98124–2207. Copies may from Airbus Industrie, 1 Rond Point purchase. For these reasons, this be inspected at the FAA, Transport Airplane Maurice Beilonte, 31707 Blagnac Cedex, commenter contends that the proposed Directorate, 1601 Lind Avenue, SW., Renton, France. This information may be rule is not warranted. Washington; or at the Office of the Federal examined at the Federal Aviation The FAA does not concur with the Register, 800 North Capitol Street, NW., suite Administration (FAA), Transport commenter’s request. The FAA has 700, Washington, DC. Airplane Directorate, Rules Docket, received no documentation verifying (i) This amendment becomes effective on 1601 Lind Avenue, SW., Renton, that all affected U.S.-registered airplanes April 10, 1996. Washington; or at the Office of the have been modified in accordance with Issued in Renton, Washington, on March 1, Federal Register, 800 North Capitol the actions required by this rule. 1996. Street, NW., suite 700, Washington, DC. Regardless of whether or not all current Darrell M. Pederson, FOR FURTHER INFORMATION CONTACT: U.S.-registered airplanes have been Acting Manager, Transport Airplane Charles Huber, Aerospace Engineer, modified, the FAA has received no data Directorate, Aircraft Certification Service. Standardization Branch, ANM–113, or other evidence to verify that all [FR Doc. 96–5367 Filed 3–8–96; 8:45 am] FAA, Transport Airplane Directorate, affected airplanes, worldwide, have BILLING CODE 4910±13±U 1601 Lind Avenue SW., Renton, been modified. Without this AD, an Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9605 unmodified airplane potentially could ‘‘significant rule’’ under DOT heating element in a localized area, be imported and placed on the U.S. Regulatory Policies and Procedures (44 accomplish the following: Register in the future, thereby FR 11034, February 26, 1979); and (3) (a) Within 7 days after February 14, 1995 reintroducing the unsafe condition into (the effective date of AD 95–01–51, will not have a significant economic amendment 39–9125), perform an inspection the U.S. fleet. It is the responsibility of impact, positive or negative, on a of the left- and right-hand sliding side the FAA, and the intent of this AD, to substantial number of small entities windows in the cockpit to identify the part ensure that this does not happen. under the criteria of the Regulatory number (P/N) of those windows, in Therefore, the issuance of this AD is Flexibility Act. A final evaluation has accordance with paragraph 4.1 of Airbus All both warranted and necessary. been prepared for this action and it is Operators Telex (AOT) 30–01, dated After careful review of the available contained in the Rules Docket. A copy December 22, 1994; or Revision 2, dated data, including the comments noted of it may be obtained from the Rules March 6, 1995. above, the FAA has determined that air (b) If no window manufactured by PPG Docket at the location provided under Industries having P/N NP175202–1 (left-hand safety and the public interest require the the caption ADDRESSES. side) or NP175202–2 (right-hand side) is adoption of the rule as proposed. List of Subjects in 14 CFR Part 39 installed, no further action is required by this There are approximately 66 Model AD. A300, A300–600, and A310 series Air transportation, Aircraft, Aviation (c) If any window manufactured by PPG airplanes of U.S. registry that will be safety, Incorporation by reference, Industries having P/N NP 175202–1 (left- affected by this AD. (Currently, there are Safety. hand side) or NP 175202–2 (right-hand side) no Model A330 or A340 series airplanes is installed, prior to further flight, on the U.S. Register.) Adoption of the Amendment accomplish either paragraph (c)(1), (c)(2), or (c)(3) of this AD in accordance with Airbus The actions that are currently Accordingly, pursuant to the required by AD 95–01–51 take AOT 30–01, dated December 22, 1994; or authority delegated to me by the Revision 2, dated March 6, 1995. approximately 1 work hour per airplane Administrator, the Federal Aviation (1) Deactivate the associated sliding to accomplish, at an average labor rate Administration amends part 39 of the window defogging system in accordance with of $60 per work hour. Based on these Federal Aviation Regulations (14 CFR the procedures specified in paragraph 4.2.2 figures, the cost impact on U.S. part 39) as follows: of the AOT. The defogging system may operators of the actions currently remain deactivated until the window is required is estimated to be $3,960, or PART 39ÐAIRWORTHINESS replaced in accordance with paragraph (d) of $60 per airplane. DIRECTIVES this AD. Or The replacement of the windows will Note 2: This AD may permit the defogging take approximately 7 work hours per 1. The authority citation for part 39 system to be deactivated for a longer time airplane to accomplish, at an average continues to read as follows: than is specified in the Master Minimum Equipment List (MMEL). In any case, the labor rate of $60 per work hour. Authority: 49 USC 106(g), 40113, 44701. provisions of this AD prevail. Required parts will be provided by the § 39.13 [Amended] (2) Install thermo-sensitive indicators in manufacturer at no cost to operators. two areas of the sliding side window (left- Based on these figures, the total cost 2. Section 39.13 is amended by and right-hand sides) in accordance with the impact on U.S. operators of the new removing amendment 39–9125 (60 FR procedures specified in paragraph 4.3 of the requirements of this AD is estimated to 5564, January 30, 1995), and by adding AOT. Thereafter, perform a daily inspection be $27,720, or $420 per airplane. a new airworthiness directive (AD), of the indicators to determine if the 60-degree The cost impact figures discussed amendment 39–9535, to read as follows: segment of any indicator turns from light above are based on assumptions that no grey to black, in accordance with the 96–05–09 Airbus Industrie: Amendment procedures specified in paragraph 4.3 of the operator has yet accomplished any of 39–9535. Docket 95–NM–156–AD. AOT. If any indicator turns black, prior to the requirements of this AD action, and Supersedes AD 95–01–51, Amendment further flight, deactivate the associated that no operator would accomplish 39–9125. sliding window defogging system in those actions in the future if this AD Applicability: All Model A300, A300–600, accordance with paragraph (c)(1) of this AD. were not adopted. However, the FAA A310, A330, and A340 series airplanes, (3) Replace the PPG Industries window has been advised that two U.S. operators certificated in any category. [having part number (P/N) NP 175202–1 (left- have already replaced the subject Note 1: This AD applies to each airplane hand side) or NP 175202–2 (right-hand side)] windows in accordance with the identified in the preceding applicability with a serviceable window manufactured by PPG Industries or by SPS, as listed in requirements of this AD. Therefore, the provision, regardless of whether it has been modified, altered, or repaired in the area paragraph 5.1 of the AOT, in accordance with future cost impact of this AD on U.S. the procedures specified in paragraph 5.1 of operators is expected to be less that the subject to the requirements of this AD. For airplanes that have been modified, altered, or the AOT. After such replacement, no further figure indicated above. repaired so that the performance of the action is required by this AD. The regulations adopted herein will requirements of this AD is affected, the (d) Within 90 days after the effective date of this AD, replace any PPG Industries not have substantial direct effects on the owner/operator must request approval for an window having part number (P/N) NP States, on the relationship between the alternative method of compliance in 175202–1 (left-hand side) or NP 175202–2 national government and the States, or accordance with paragraph (e) of this AD. (right-hand side) with a serviceable window The request should include an assessment of on the distribution of power and manufactured by PPG Industries or by SPS, responsibilities among the various the effect of the modification, alteration, or as listed in paragraph 5.1 of AOT 30–01, levels of government. Therefore, in repair on the unsafe condition addressed by dated December 22, 1994; or paragraphs 5.2.1 accordance with Executive Order 12612, this AD; and, if the unsafe condition has not (PPG Industries windows) and 5.2.2 (SPS been eliminated, the request should include windows) of AOT 30–01, Revision 2, dated it is determined that this final rule does specific proposed actions to address it. not have sufficient federalism March 6, 1995. Accomplish the replacement Compliance: Required as indicated, unless implications to warrant the preparation in accordance with the procedures specified accomplished previously. in AOT 30–01, dated December 22, 1994, or of a Federalism Assessment. To prevent rupture of a cockpit sliding Revision 2, dated March 6, 1995. After such For the reasons discussed above, I window and subsequent rapid replacement, no further action is required by certify that this action (1) is not a decompression of the fuselage due to fracture this AD. ‘‘significant regulatory action’’ under of the window as a result of thermal stress (e) An alternative method of compliance or Executive Order 12866; (2) is not a created by overheating of the wires of the adjustment of the compliance time that 9606 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations provides an acceptable level of safety may be damaged fairings. That AD was After careful review of the available used if approved by the Manager, prompted by a report indicating that an data, including the comment noted Standardization Branch, ANM–113, FAA, overwing fairing detached from an above, the FAA has determined that air Transport Airplane Directorate. Operators airplane. The actions specified by that safety and the public interest require the shall submit their requests through an appropriate FAA Principal Maintenance AD are intended to prevent reduced adoption of the rule as proposed. Inspector, who may add comments and then controllability of the airplane due to The FAA estimates that 14 airplanes send it to the Manager, Standardization loss of an overwing fairing. This of U.S. registry will be affected by this Branch, ANM–113. amendment adds an optional AD. Note 3: Information concerning the terminating action for the currently The inspections currently required by existence of approved alternative methods of required inspections, and limits the AD 94–24–09 take approximately 0.25 compliance with this AD, if any, may be applicability of the rule. work hour per airplane to accomplish, obtained from the Standardization Branch, DATES: Effective April 10, 1996. at an average labor rate of $60 per work ANM–113. The incorporation by reference of hour. Based on these figures, the cost (f) Special flight permits may be issued in Jetstream Alert Service Bulletin J41–53– impact of the current inspection accordance with sections 21.197 and 21.199 028, Revision 2, dated January 17, 1995, requirements of this AD on U.S. of the Federal Aviation Regulations (14 CFR operators is estimated to be $210, or $15 21.197 and 21.199) to operate the airplane to as listed in the regulations, is approved by the Director of the Federal Register per airplane, per inspection. a location where the requirements of this AD Should an operator elect to install the can be accomplished. as of April 10, 1996. (g) The actions shall be done in accordance The incorporation by reference of optional terminating modification, it with Airbus All Operators Telex 30–01, dated Jetstream Alert Service Bulletin J41–53– will take approximately 20 work hours December 22, 1994; or Airbus All Operators 028, Revision 1, dated October 12, 1994, to accomplish, at an average labor rate Telex 30–01, Revision 2, dated March 6, as listed in the regulations, was of $60 per work hour. Required parts 1995. The incorporation by reference of approved previously by the Director of will cost approximately $7,300 per Airbus All Operators Telex 30–01, dated the Federal Register as of December 14, airplane. Based on these figures, the cost December 22, 1994, was approved previously 1995 (59 FR 60891, November 29, 1994). impact of this optional terminating by the Director of the Federal Register, in modification on U.S. operators is accordance with 5 U.S.C. 552(a) and 1 CFR ADDRESSES: The service information referenced in this AD may be obtained estimated to be $8,500 per airplane. part 51, as of February 14, 1995 (60 FR 5564, The regulations adopted herein will January 30, 1995). The incorporation by from Jetstream Aircraft, Inc., P.O. Box reference of Airbus All Operators Telex 30– 16029, Dulles International Airport, not have substantial direct effects on the 01, Revision 2, dated March 6, 1995, was Washington, DC 20041–6029. This States, on the relationship between the approved by the Director of the Federal information may be examined at the national government and the States, or Register in accordance with 5 U.S.C. 552(a) Federal Aviation Administration (FAA), on the distribution of power and and 1 CFR 51. Copies may be obtained from Transport Airplane Directorate, Rules responsibilities among the various Airbus Industrie, 1 Rond Point Maurice Docket, 1601 Lind Avenue, SW., levels of government. Therefore, in Bellonte, 31707 Blagnac Cedex, France. accordance with Executive Order 12612, Copies may be inspected at the FAA, Renton, Washington; or at the Office of the Federal Register, 800 North Capitol it is determined that this final rule does Transport Airplane Directorate, 1601 Lind not have sufficient federalism Avenue, SW., Renton, Washington; or at the Street, NW., suite 700, Washington, DC. implications to warrant the preparation Office of the Federal Register, 800 North FOR FURTHER INFORMATION CONTACT: of a Federalism Assessment. Capitol Street, NW., suite 700, Washington, William Schroeder, Aerospace Engineer, DC. For the reasons discussed above, I Standardization Branch, ANM–113, certify that this action (1) is not a (h) This amendment becomes effective on FAA, Transport Airplane Directorate, April 10, 1996. ‘‘significant regulatory action’’ under 1601 Lind Avenue, SW., Renton, Executive Order 12866; (2) is not a Issued in Renton, Washington, on March 1, Washington 98055–4056; telephone 1996. ‘‘significant rule’’ under DOT (206) 227–2148; fax (206) 227–1149. Darrell M. Pederson, Regulatory Policies and Procedures (44 SUPPLEMENTARY INFORMATION: A Acting Manager, Transport Airplane FR 11034, February 26, 1979); and (3) Directorate, Aircraft Certification Service. proposal to amend part 39 of the Federal will not have a significant economic Aviation Regulations (14 CFR part 39) [FR Doc. 96–5366 Filed 3–8–96; 8:45 am] impact, positive or negative, on a by revising AD 94–24–09, amendment BILLING CODE 4910±13±P substantial number of small entities 39–9082 (59 FR 60891, November 29, under the criteria of the Regulatory 1994), which is applicable to certain Flexibility Act. A final evaluation has 14 CFR Part 39 Jetstream Model 4101 airplanes, was been prepared for this action and it is published in the Federal Register on contained in the Rules Docket. A copy [Docket No. 95±NM±71±AD; Amendment October 11, 1995 (60 FR 52870). The of it may be obtained from the Rules 39±9536; AD 94±24±09 R1] action proposed to revise AD 94–24–09 Docket at the location provided under to continue to require repetitive Airworthiness Directives; Jetstream the caption ADDRESSES. inspections to detect damage to the Model 4101 Airplanes overwing fairings, and replacement or List of Subjects in 14 CFR Part 39 AGENCY: Federal Aviation repair of structurally damaged fairings. Air transportation, Aircraft, Aviation Administration, DOT. The action also proposed to provide an safety, Incorporation by reference, ACTION: Final rule. optional terminating action for the Safety. repetitive inspections. SUMMARY: This amendment revises an Interested persons have been afforded Adoption of the Amendment existing airworthiness directive (AD), an opportunity to participate in the Accordingly, pursuant to the applicable to certain Jetstream Model making of this amendment. Due authority delegated to me by the 4101 airplanes, that currently requires consideration has been given to the Administrator, the Federal Aviation repetitive inspections to detect damage single comment received. Administration amends part 39 of the to the overwing fairings, and The commenter supports the Federal Aviation Regulations (14 CFR replacement or repair of structurally proposed rule. part 39) as follows: Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9607

PART 39ÐAIRWORTHINESS the inspection thereafter at intervals not to Issued in Renton, Washington, on March 4, DIRECTIVES exceed 300 hours time-in-service. 1996. (b) Installation of Modification No. James V. Devany, 1. The authority citation for part 39 JM41392, Parts 1 and 2, in accordance with Acting Manager, Transport Airplane continues to read as follows: Jetstream Service Bulletin J41–53–031, dated Directorate, Aircraft Certification Service. November 22, 1994, constitutes terminating Authority: 49 USC 106(g), 40113, 44701. action for the inspections required by [FR Doc. 96–5525 Filed 3–8–96; 8:45 am] § 39.13 [Amended] paragraph (a) of this AD. BILLING CODE 4910±13±P (c) An alternative method of compliance or 2. Section 39.13 is amended by adjustment of the compliance time that removing amendment 39–9082 (59 FR provides an acceptable level of safety may be 14 CFR Part 39 60891, November 29, 1994), and by used if approved by the Manager, adding a new airworthiness directive Standardization Branch, ANM–113, FAA, [Docket No. 95±NM±277±AD; Amendment (AD), amendment 39–9536, to read as Transport Airplane Directorate. Operators 39±9537; AD 96±06±01] follows: shall submit their requests through an appropriate FAA Principal Maintenance Airworthiness Directives; Boeing 94–24–09 R1 Jetstream Aircraft Limited: Inspector, who may add comments and then Model 757 Series Airplanes Equipped Amendment 39–9536. Docket 95–NM– send it to the Manager, Standardization With Abex Spoiler Actuators 71–AD. Revises AD 94–24–09, Branch, ANM–113. Amendment 39–9082. AGENCY: Federal Aviation Note 3: Information concerning the Applicability: Model 4101 airplanes; Administration, DOT. existence of approved alternative methods of constructor’s number 41004 and subsequent; compliance with this AD, if any, may be ACTION: Final rule; request for on which Modification JM41392 has not been obtained from the Standardization Branch, comments. installed (either during production or in ANM–113. accordance with Jetstream Service Bulletin (d) Special flight permits may be issued in SUMMARY: This amendment adopts a J41–53–031); certificated in any category. new airworthiness directive (AD), Note 1: This AD applies to each airplane accordance with sections 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR applicable to Boeing Model 757 series identified in the preceding applicability airplanes that are equipped with certain provision, regardless of whether it has been 21.197 and 21.199) to operate the airplane to modified, altered, or repaired in the area a location where the requirements of this AD Abex spoiler actuator electro-hydraulic subject to the requirements of this AD. For can be accomplished. servo valves (EHSV) installed in Abex airplanes that have been modified, altered, or (e) The inspections and repair shall be spoiler actuators. This action requires a repaired so that the performance of the done in accordance with Jetstream Alert one-time inspection of the spoiler requirements of this AD is affected, the Service Bulletin J41–53–028, Revision 1, actuator to determine if a suspect EHSV dated October 12, 1994; or Jetstream Alert owner/operator must request approval for an is incorrectly installed, and replacement alternative method of compliance in Service Bulletin J41–53–028, Revision 2, dated January 17, 1995, which contains the of the EHSV, if necessary. This accordance with paragraph (c) of this AD. amendment is prompted by reports that The request should include an assessment of following list of effectives pages: the effect of the modification, alteration, or a bias spring in the Abex EHSV of certain Abex spoiler actuators has been repair on the unsafe condition addressed by Revision level Date shown this AD; and, if the unsafe condition has not Page No. shown on on page found to be incorrectly installed. The been eliminated, the request should include page actions specified in this AD are specific proposed actions to address it. 1, 3, 5, 6 ...... 2 ...... January 17, intended to prevent a significant control Compliance: Required as indicated, unless 1995. upset of the airplane as a result of accomplished previously. 2, 4, 7, 8 ...... Original ...... September problems associated with an incorrectly To prevent reduced controllability of the 22, 1994. installed EHSV in the spoiler actuator airplane, accomplish the following: assembly. (a) Within 7 days after December 14, 1994 (the effective date of AD 94–24–09, The incorporation by reference of DATES: Effective March 26, 1996. amendment 39–9082), perform a detailed Jetstream Alert Service Bulletin J41–53– Comments for inclusion in the Rules visual inspection to detect structural damage 028, Revision 1, dated October 12, 1994, Docket must be received on or before (such as creasing, cracking, or holes) to the was previously approved by the Director May 10, 1996. left (Part 1) and right (Part 2) overwing of the Federal Register in accordance ADDRESSES: Submit comments in fairings, in accordance with Jetstream Alert with 5 U.S.C. 552(a) and 1 CFR part 51 triplicate to the Federal Aviation Service Bulletin J41–53–028, Revision 1, dated October 12, 1994; or Revision 2, dated as of December 14, 1995 (59 FR 60891, Administration (FAA), Transport January17, 1995. November 29, 1994). The incorporation Airplane Directorate, ANM–103, (1) If no structural damage is detected, by reference of Jetstream Alert Service Attention: Rules Docket No. 95–NM– repeat the inspection thereafter at intervals Bulletin J41–53–028, Revision 2, dated 277–AD, 1601 Lind Avenue SW., not to exceed 7 days. January 17, 1995, is approved by the Renton, Washington 98055–4056. (2) If creasing or cracking is detected, prior Director of the Federal Register in Information concerning this AD to further flight, inspect and repair it, in accordance with 5 U.S.C. 552(a) and 1 action may be examined at the FAA, accordance with the alert service bulletin. CFR part 51. Copies may be obtained Transport Airplane Directorate, 1601 Repeat the inspection thereafter at intervals not to exceed 300 hours time-in-service. from Jetstream Aircraft, Inc., P.O. Box Lind Avenue SW., Renton, Washington. 16029, Dulles International Airport, Note 2: Jetstream Alert Service Bulletin FOR FURTHER INFORMATION CONTACT: Don J41–53–028 references British Aerospace Washington, DC 20041–6029. Copies Eiford, Aerospace Engineer, Systems Public Limited Company Drawing 141R0700, may be inspected at the FAA, Transport and Equipment Branch, ANM–130S, Issue 3, dated September 14, 1994, and Airplane Directorate, 1601 Lind FAA, Seattle Aircraft Certification British Aerospace Public Limited Company Avenue, SW., Renton, Washington; or at Office, 1601 Lind Avenue SW., Renton, Drawing 141R0705, Issue 2, dated September the Office of the Federal Register, 800 Washington; telephone (206) 227–2788; 22, 1994, for repair and inspection North Capitol Street, NW., suite 700, fax (206) 227–1181. procedures. Washington, DC. (3) If holes are detected, prior to further SUPPLEMENTARY INFORMATION: The FAA flight, repair in accordance with the Jetstream (f) This amendment becomes effective has received reports that a bias spring in Series 4100 Structural Repair Manual. Repeat on April 10, 1996. the Abex electro-hydraulic servo valve 9608 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations

(EHSV) in certain Abex spoiler actuators unnecessary and the amendment may be substantial number of small entities that are installed on certain Boeing made effective in less than 30 days after under the criteria of the Regulatory Model 757 series airplanes has been publication in the Federal Register. Flexibility Act. A final evaluation has found to be incorrectly installed. One been prepared for this action and it is Comments Invited operator received three valves on which contained in the Rules Docket. A copy the bias spring was installed on the Although this action is in the form of of it may be obtained from the Rules wrong side of the EHSV second stage a final rule and was not preceded by Docket at the location provided under spool. Investigation revealed that the notice and opportunity for public the caption ADDRESSES. valves had been assembled incorrectly comment, comments are invited on this during repair at a non-U.S. repair rule. Interested persons are invited to List of Subjects in 14 CFR Part 39 facility. The subject EHSV’s are Abex P/ comment on this rule by submitting Air transportation, Aircraft, Aviation N 72196, Boeing Specification such written data, views, or arguments safety, Safety. as they may desire. Communications S251N116–1, Model 410–1870. Adoption of the Amendment If the jet pipe in the first stage of the shall identify the Rules Docket number EHSV is plugged, or if the differential and be submitted in triplicate to the Accordingly, pursuant to the pressure between the extend and retract address specified under the caption authority delegated to me by the ports pressurized by the jet pipe is ADDRESSES. All communications Administrator, the Federal Aviation inadequate, an incorrectly installed bias received on or before the closing date Administration amends part 39 of the spring on the second stage spool would for comments will be considered, and Federal Aviation Regulations (14 CFR cause the spoiler to be driven into the this rule may be amended in light of the part 39) as follows: ‘‘deploy’’ position. Such inadvertent comments received. Factual information spoiler deployment would result in the that supports the commenter’s ideas and PART 39ÐAIRWORTHINESS airplane experiencing a rolling moment. suggestions is extremely helpful in DIRECTIVES If the airplane is already banked or is at evaluating the effectiveness of the AD 1. The authority citation for part 39 a low altitude, or if the crew does not action and determining whether continues to read as follows: respond rapidly enough to control the additional rulemaking action would be Authority: 49 USC 106(g), 40113, 44701. uncommanded roll, a significant control needed. upset of the airplane could result. Comments are specifically invited on § 39.13 [Amended] Since an unsafe condition has been the overall regulatory, economic, 2. Section 39.13 is amended by identified that is likely to exist or environmental, and energy aspects of adding the following new airworthiness develop on other airplanes of the same the rule that might suggest a need to directive: type design, this AD is being issued to modify the rule. All comments prevent the occurrence of a significant submitted will be available, both before 96–06–01 Boeing: Amendment 39–9537. control upset of the airplane due to and after the closing date for comments, Docket 95–NM–277–AD. problems associated with suspect in the Rules Docket for examination by Applicability: Model 757 airplanes, interested persons. A report that certificated in any category, that are EHSV’s in the spoiler actuator. This AD equipped with Abex spoiler actuators having requires a one-time inspection of the summarizes each FAA-public contact Abex electro-hydraulic servo valves (EHSV), Abex EHSV on the spoiler actuator to concerned with the substance of this AD part number 72196, with the serial numbers determine if a suspect valve is will be filed in the Rules Docket. listed in Table 1 of this AD: incorrectly installed; if so, the EHSV Commenters wishing the FAA to must be replaced. acknowledge receipt of their comments TABLE 1 None of the Model 757 series submitted in response to this rule must airplanes affected by this action are on submit a self-addressed, stamped EHSV se- Boeing Shipment date* the U.S. Register. All airplanes included postcard on which the following rial No. order No.* in the applicability of this rule currently statement is made: ‘‘Comments to are operated by non-U.S. operators Docket Number 95–NM–277–AD.’’ The AH±0001 . C716657 . 8 November 1991. AH±0002 . C716657 . 8 November 1991. under foreign registry; therefore, they postcard will be date stamped and AH±0003 . C727995 . 25 August 1994. are not directly affected by this AD returned to the commenter. AH±0004 . C727995 . 25 August 1994. action. However, the FAA considers that The regulations adopted herein will AH±0005 . C727995 . 25 August 1995. this rule is necessary to ensure that the not have substantial direct effects on the AH±0006 . C727995 . 25 August 1995. unsafe condition is addressed in the States, on the relationship between the AH±0007 . C727995 . 25 August 1995. event that any of these subject airplanes national government and the States, or 13 ...... C731181 . 12 June 1995. are imported and placed on the U.S. on the distribution of power and 49 ...... C730878 . 01 June 1995. Register in the future. responsibilities among the various 61 ...... C727955 . 13 September Should an affected airplane be levels of government. Therefore, in 1994. 131 ...... C708905 . 13 November 89. imported and placed on the U.S. accordance with Executive Order 12612, 233 ...... C727730 . 17 June 1994. Register in the future, it would require it is determined that this final rule does 241 ...... C731540 . 13 September approximately 1 work hour to not have sufficient federalism 1995. accomplish the required actions, at an implications to warrant the preparation 260 ...... C727955 . 13 September average labor charge of $60 per work of a Federalism Assessment. 1994. hour. Based on these figures, the cost For the reasons discussed above, I 279 ...... C728298 . 02 September impact of this AD would be $60 per certify that this action (1) Is not a 1994. airplane. ‘‘significant regulatory action’’ under 275 ...... C727880 . 24 June 1994. Since this AD action does not affect Executive Order 12866; (2) is not a 308 ...... C725421 . 01 December 1993. 329 ...... C727711 . 17 June 1994. any airplane that is currently on the ‘‘significant rule’’ under DOT 347 ...... C727518 . 14 June 1994. U.S. register, it has no adverse economic Regulatory Policies and Procedures (44 401 ...... C728298 . 05 September impact and imposes no additional FR 11034, February 26, 1979); and (3) 1994. burden on any person. Therefore, notice will not have a significant economic 407 ...... C727730 . 17 June 1994. and public procedures hereon are impact, positive or negative, on a 427 ...... C731181 . 03 July 1995. Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9609

TABLE 1ÐContinued TABLE 1ÐContinued (a) Within 6 months after the effective date of this AD, perform the following procedure: (1) While the airplane is on the ground, EHSV se- Boeing EHSV se- Boeing Shipment date* rial No. order No.* Shipment date* rial No. order No.* extend the flaps to 40 degrees. and visually inspect the spoiler actuator EHSV assembly 450 ...... C731181 . 03 July 1995. 1986Z ...... C727730 . 17 June 1994. to determine the location of the second stage 445 ...... C706627 . 22 February 89. 2017Z ...... C725411 . 24 November 1993. bias spring end cap assembly. 457 ...... C731663 . 12 September 2034 ...... C727730 . 17 June 1994. (2) If the second stage bias spring cap 1995. 2073 ...... C731272 . 12 September assembly is on the aft or lower side of the 456 ...... C728887 . 28 November 1994. 1995. EHSV assembly, prior to further flight, 2125 ...... C725713 . 12 January 1994. 463 ...... C731435 . 21 August 1995. replace the EHSV, having Abex part number 2220 ...... C729735 . 29 March 1995. 484 ...... C727748 . 22 June 1994. 72196, with a serviceable unit in accordance 515 ...... C727745 . 24 June 1994. 2334 ...... C727730 . 17 June 1994. with the airplane maintenance manual. 569 ...... C728290 . 05 September 2348 ...... C727730 . 17 June 1994. 1994. 2426 ...... C731623 . 12 July 1995. Note 2: To be correctly positioned, the 579 ...... C724176 . 14 September second stage bias spring cap assembly should *The Boeing Order Number and Shipment be on the upper or forward side of the EHSV 1993. Date are included in this listing to enable oper- 611 ...... C727955 . 14 September ators to review their records in order to deter- assembly. Appendix 1 of this AD provides a 1994. mine if a suspect EHSV has been ordered, visual representation of the correct 607 ...... C727997 . 20 July 1994. and if, or where, it has been installed on an positioning of the EHSV assembly. 647 ...... C728459 . 10 October 1994. airplane. (b) An alternative method of compliance or 726 ...... C731096 . 04 September Note 1: This AD applies to each airplane adjustment of the compliance time that 1995. identified in the preceding applicability provides an acceptable level of safety may be 725 ...... C729525 . 19 December 1994. provision, regardless of whether it has been used if approved by the Manager, Seattle 819 ...... C728135 . 03 August 1994. modified, altered, or repaired in the area Aircraft Certification Office (ACO), FAA, 890 ...... C726803 . 06 April 1994. subject to the requirements of this AD. For Transport Airplane Directorate. Operators 874 ...... C730890 . 26 April 1995. airplanes that have been modified, altered, or shall submit their requests through an 912 ...... C727977 . 04 August 1994. repaired so that the performance of the appropriate FAA Principal Maintenance 991 ...... C713602 . 10 December 90. requirements of this AD is affected, the Inspector, who may add comments and then 998 ...... C731477 . 4 September 1995. owner/operator must request approval for an send it to the Manager, Seattle ACO. 1022 ...... C708905 . 13 November 89. alternative method of compliance in 1023 ...... C708905 . 13 November 89. accordance with paragraph (b) of this AD. Note 3: Information concerning the 1072 ...... C709166 . 14 November 89. The request should include an assessment of existence of approved alternative methods of 1148 ...... C730192 . 13 March 1995. the effect of the modification, alteration, or compliance with this AD, if any, may be 1175 ...... C723278 . 05 August 1993. repair on the unsafe condition addressed by obtained from the Seattle ACO. 1227 ...... C728303 . 31 August 1994. this AD; and, if the unsafe condition has not (c) Special flight permits may be issued in 1283 ...... C731833 . 04 September been eliminated, the request should include accordance with sections 21.197 and 21.199 1995. specific proposed actions to address it. of the Federal Aviation Regulations (14 CFR 1487 ...... C728549 . 04 October 1994. Compliance: Required as indicated, unless 21.197 and 21.199) to operate the airplane to 1655 ...... C728442 . 28 November 1994. accomplished previously. a location where the requirements of this AD 1780 ...... C726757 . 06 April 1994. To prevent a significant control upset of can be accomplished. 1807 ...... C728669 . 29 September the airplane due to problems associated with (d) This amendment becomes effective on 1994. incorrectly assembled Abex electro-hydraulic March 26, 1996. 1862 ...... C727625 . 17 June 1994. servo valves (EHSV) on certain Abex spoiler 1929 ...... C727977 . 04 August 1994. actuators, accomplish the following: BILLING CODE 4910±13±U 9610 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations

Appendix 1 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9611

BILLING CODE 4910±13±C Issued in Renton, Washington, on March 5, 1996. Darrell M. Pederson, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. 96–5689 Filed 3–8–96; 8:45 am] BILLING CODE 4910±13±U 9612 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations

14 CFR Part 71 The FAA has determined that this airspace within a 1-mile radius of the Blair regulation only involves an established Airport. [Airspace Docket No. 95±AWP±45] body of technical regulations for which * * * * * Amendment of Class E Airspace; frequent and routine amendments are Issued in Los Angeles, California, on February 23, 1996. Hanford, CA necessary to keep them operationally current. Therefore, this regulation—(1) James H. Snow, AGENCY: Federal Aviation is not a ‘‘significant regulatory action’’ Acting Manager, Air Traffic Division, Administration (FAA), DOT. under Executive Order 12866; (2) is not Western-Pacific Region. ACTION: Final rule. a ‘‘significant rule’’ under DOT [FR Doc. 96–5724 Filed 3–8–96; 8:45 am] Regulatory Policies and Procedures (44 BILLING CODE 4910±13±M SUMMARY: This action amends the Class FR 10034; February 26, 1979); and (3) E airspace area at Hanford, CA. The does not warrant preparation of a development of a Global Positioning Regulatory Evaluation as the anticipated 14 CFR Part 121 System (GPS) Standard Instrument impact is so minimal. Since this is a Approach Procedure (SIAP) to Runway routine matter that will only affect air [Docket No. 28154; Amendment No. 121± (RWY) 32 has made this action traffic procedures and air navigation, it 254] necessary. The intended effect of this is certified that this rule will not have action is to provide adequate controlled a significant economic impact on a RIN 2120±AC79 airspace for Instrument Flight Rules substantial number of small entities (IFR) operations at Hanford Municipal under the criteria of the Regulatory Operating Requirements: Domestic, Airport, Hanford, CA. Flexibility Act. Flag, Supplemental, Commuter, and EFFECTIVE DATE: 0901 UTC June 20, List of Subjects in 14 CFR Part 71 On-Demand Operations: Editorial and 1996. Terminology Changes FOR FURTHER INFORMATION CONTACT: Airspace, Incorporation by reference, William Buck, Airspace Specialist, Navigation (air). AGENCY: Federal Aviation System Management Branch, AWP–530, Adoption of the Amendment Administration (FAA), DOT. Air Traffic Division, Western-Pacific In consideration of the foregoing, the ACTION: Final rule; correction. Region, Federal Aviation Federal Aviation Administration Administration, 15000 Aviation SUMMARY: This amendment corrects an amends 14 CFR part 71 as follows: Boulevard, Lawndale, California 90261, error in a document published on telephone (310) 725–6556. PART 71Ð[AMENDED] January 26, 1996 (61 FR 2608), which removed § 121.404. The FAA intended SUPPLEMENTARY INFORMATION: 1. The authority citation for 14 CFR to remove the version of § 121.404 that History part 71 continues to read as follows: was effective before December 20, 1995, On January 8, 1996, the FAA Authority: 49 U.S.C. 106(g), 40103, 40113, and not the revision of § 121.404 proposed to amend part 71 of the 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– published on December 20, 1995 (60 FR Federal Aviation Regulations (14 CFR 1963 Comp., p. 389; 14 CFR 11.69. 65948). Therefore, the version of part 71) by amending the Class E § 71.1 [Amended] § 121.404 that was published on airspace area at Hanford, CA (61 FR December 20, 1995, is reinstated in this 2. The incorporation by reference in document. 548). This action will provide adequate 14 CFR 71.1 of the Federal Aviation controlled airspace to accommodate a Administration Order 7400.9C, Airspace EFFECTIVE DATE: March 11, 1996. GPS SIAP to RWY 32 at Hanford Designations and Reporting Points, FOR FURTHER INFORMATION CONTACT: Municipal Airport, Hanford, CA. dated August 17, 1995, and effective Interested parties were invited to Linda Williams, Office of Rulemaking September 16, 1995, is amended as (ARM–100); Federal Aviation participate in this rulemaking follows: proceeding by submitting written Administration, 800 Independence comments on the proposal to the FAA. Paragraph 6005 Class E airspace areas Avenue SW., Washington, DC 20591; No comments to the proposal were extending upward from 700 feet or more telephone (202) 267–9685. above the surface of the earth. received. Class E airspace designations The Amendment are published in paragraph 6005 of FAA * * * * * Order 7400.9C dated August 17, 1995, AWP CA E5 Hanford, CA [Revised] In consideration of the foregoing, the and effective September 16, 1995, which Federal Aviation Administration Hanford Municipal Airport, CA amends the Federal Aviation is incorporated by reference in 14 CFR (lat. 36°19′07′′ N, long. 119°37′44′′ W) 71.1. The E airspace designations listed Visalia VOR/DME Regulations (14 CFR part 121) as in this document will be published (lat. 36°22′02′′ N, long. 119°28′56′′ W) follows: subsequently in this Order. Blair Airport, CA (lat. 36°16′31′′ N, long. 119°38′26′′ W) PART 121ÐOPERATING The Rule REQUIREMENTS: DOMESTIC, FLAG, That airspace extending upward from 700 This amendment to part 71 of the feet above the surface within a 2.6-mile AND SUPPLEMENTAL OPERATIONS radius of the Hanford Municipal Airport and Federal Aviation Regulations (14 CFR 1. The authority citation for part 121 part 71) amends the Class E airspace within 1.8 miles north and 2.3 miles south ° continues to read as follows: area at Hanford, CA. The development of the Visalia VOR/DME 246 radial, of a GPS SIAP to RWY 32 has made this extending from the 2.6-mile radius to the Authority: 49 U.S.C. 106(g), 40113, 40119, Visalia VOR/DME and 1.5 miles each side of 44101, 44701–44702, 44705, 44709–44711, action necessary. The intended effect of the 152° bearing from the Hanford Municipal this action is to provide adequate 44713, 44716–44717, 44722, 44901, 44903– Airport, extending from the 2.6 mile radius 44904, 44912, 46105. controlled airspace for aircraft executing to 5 miles southeast of the Hanford the GPS RWY 32 SIAP at Hanford Municipal Airport, excluding the Visalia, CA, 2. Section 121.404 is added to read as Municipal Airport, Hanford, CA. Class E airspace area, and excluding that follows: Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9613

§ 121.404 Compliance dates: Crew and the Commission also provides all Amoco Production Company, et al. dispatcher resource management training. interested persons an opportunity to (Amoco), American Forest and Paper After March 19, 1988, no certificate inspect or copy the contents of this Association, ANR Pipeline/Colorado holder may use a person as a flight document during normal business hours Interstate Gas Co.(ANR/CIG), Associated crewmember, and after March 19, 1999, at 888 First Street, NE., Washington, DC Gas Distributors (AGD), Chevron, U.S.A. no certificate holder may use a person 20426. Inc. et al. (Chevron), Colorado Interstate as a flight attendant or aircraft The Commission Issuance Posting Gas Company, Columbia Gas dispatcher unless that person has System (CIPS), an electronic bulletin Transmission/Columbia Gulf completed approved crew resource board service, provides access to the Transmission, Great Lakes Gas management (CRM) or dispatcher texts of formal documents issued by the Transmission (Great Lakes), Interstate resource management (DRM) initial Commission. CIPS is available at no Natural Gas Association of America training, as applicable, with that charge to the user and may be accessed (INGAA), JMC Power Projects, Natural certificate holder or with another using a personal computer with a Gas Supply Association (NGSA), certificate holder. modem by dialing (202) 208–1397 if Mississippi River Transmission Co. Issued in Washington, D.C., on March 4, dialing locally or 1–800–856–3720 if (MRT), Natural Gas Clearinghouse, 1996. dialing long distance. To access CIPS, Natural Gas Supply Association Donald P. Byrne, set your communications software to (NGSA), Panhandle Eastern Pipe Line, 19200, 14400, 12000, 9600, 7200, 4800, Assistant Chief Counsel. Texas Eastern Transmission Corp., and 2400, or 1200 bps, full duplex, no Williston Basin Interstate Pipeline [FR Doc. 96–5726 Filed 3–8–96; 8:45 am] parity, 8 data bits, and 1 stop bit. The Company. BILLING CODE 4910±13±M full text of this document will be available on CIPS indefinitely in ASCII II. Discussion and WordPerfect 5.1 format. The a. Section 154.1 Application; DEPARTMENT OF ENERGY complete text on diskette in Obligation to File Wordperfect format may also be Federal Energy Regulatory purchased from the Commission’s copy 1. Requests for Rehearing Commission contractor, La Dorn Systems Section 154.1(d) requires that any 18 CFR Part 154 Corporation, also located in the Public executed service agreement which Reference Room at 888 First Street, NE., deviates in a material aspect from the [Docket No. RM95±3±001; Order No. 582± Washington, DC 20426. form of service agreement in a pipeline’s A] This order grants, in part, and denies, tariff must be filed with the in part, requests for rehearing of Order Commission. 3 This requirement Filing and Reporting Requirements for 1 No. 582 (Rule). That order adopted codified existing Commission policy. 4 Interstate Natural Gas Company Rate procedural rules governing the form and Schedules and Tariffs Final Rule; composition of interstate natural gas Amoco argues that the Rule violates Order on Rehearing pipeline tariffs and the filing of rates section 4(c) of the NGA by allowing the and charges for the transportation of interstate pipelines to make substantive Issued: February 29, 1996. deviations from pro forma contracts AGENCY: Federal Energy Regulatory natural gas in interstate commerce under sections 4 and 5 of the Natural without honoring the statutory and Commission, DOE. regulatory duty to file contracts with the ACTION: Final rule; Order on rehearing. Gas Act (NGA) and section 311 of the Natural Gas Policy Act. Also, minor Commission so that the public and shippers can determine whether or not SUMMARY: The Federal Energy modifications to the electronic filing they have been subjected to undue Regulatory Commission is issuing an instructions for tariff sheets are added as discrimination.5 order on the requests for rehearing of an appendix. Order No. 582, the final rule amending I. Background 3 part 154 of the Commission’s Section 154.1, Application; Obligation to file, On September 28, 1995, the requires: regulations under the Natural Gas Act. (b) Every natural gas company must file with the That order adopted procedural rules Commission issued Order No. 582, the Commission and post in conformity with the governing the form and composition of final rule in Docket No. RM95–3–000 requirements of this part, schedules showing all interstate natural gas pipeline tariffs and revising part 154, Chapter I, Title 18, rates and charges for any transportation or sale of Code of Federal Regulations. 2 This natural gas subject to the jurisdiction of the the filing of rates and charges for the Commission, and the classifications, practices, transportation of natural gas in order responds to requests for rehearing rules, and regulations affecting such rates, charges, interstate commerce under sections 4 or clarification of the Rule filed by and services, together with all contracts related and 5 of the Natural Gas Act (NGA) and thereto. section 311 of the Natural Gas Policy 1 Filing and Reporting Requirements for Interstate (d) For the purposes of paragraph (b) of this Natural Gas Companies Rate Schedules and Tariffs, section, any contract that conforms to the form of Act. Also, minor modifications to the Order No. 582, 60 FR 52960 (October 11, 1995), II service agreement that is part of the pipeline’s tariff electronic filing instructions for tariff FERC Stats. & Regs. ¶ 19,100–19,183 pursuant to § 154.110 does not have to be filed. Any sheets are added as an appendix. (1995)(regulatory text), III FERC Stats. & Regs. contract or executed service agreement which ¶ 31,025 (1995)(preamble). This order on rehearing deviates in any material aspect from the form of EFFECTIVE DATE: The revised regulations is a companion to the order on rehearing, issued service agreement in the tariff is subject to the filing will become effective April 10, 1996. concurrently in Docket No. RM95–4–001, which requirements of this part. FOR FURTHER INFORMATION CONTACT: concerns amendments to, among other things, the 4 See, Tennessee Gas Pipeline Company, et al., 65 Richard A. White, Office of the General Uniform System of Accounts and FERC Form No. FERC ¶ 61,356 (1993); reh’g denied, 67 FERC 2. Revisions to Uniform System of Accounts Forms, ¶ 61,196 (1994). Counsel, Federal Energy Regulatory Statements, and Reporting Requirements for Natural 5 The Commission has included as § 154.1(b) the Commission, 888 First Street, NE., Gas Companies, Order No. 581, 60 FR 53019 description of the purpose of part 154, which Washington, DC 20426, (202) 208–0491. (October 11, 1995), 72 FERC ¶ 61,301 (1995). reflects the requirement of Section 4(c) of the NGA 2 Filing and Reporting Requirements for Interstate that every natural gas company must file with the SUPPLEMENTARY INFORMATION: In Natural Gas Company Rate Schedules and Tariffs, Commission, and maintain open for public addition to publishing the full text of 60 FR 3111 (January 13, 1995), IV FERC Stats. & inspection, its schedules and contracts. 15 U.S.C. this document in the Federal Register, Regs. ¶ 32,511 (1995). § 717c(c). 9614 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations

Amoco states that the regulatory text (such as 950–1100 psi). A contract calculations.10 To the extent APGA’s is correct as a matter of law and policy. would be consistent with the tariff if, for request seeks to expand the use of the However, Amoco states that the example, it was completed by filling in format compatible with the filing Commission eviscerated the regulation the blanks or included terms that fall company’s spreadsheet application to by not defining ‘‘materiality,’’ and within the prescribed ranges. There is other statements, the request is denied. eliminating the items most likely to be no need to burden the pipeline with The Commission adopted the tab the instrument of undue discrimination filing all contracts that conform to the delimited format as the default for and unjust and unreasonable terms and pro forma agreement that has been filed numeric data because it was conditions from qualification as and approved by the Commission as a recommended by several parties in ‘‘material deviations.’’ Amoco took the part of the tariff. Of course, where a comments to the NOPR. It is also a more items listed in the Preamble as not contract conflicts with the tariff, the generic format capable of being read or likely to trigger a filing, and argues that, tariff controls until the contract is filed created by several software packages. under certain circumstances, unfair and accepted by the Commission. Thus, This allows greater access to the data to discrimination could occur. any contract which is not consistent the general public without imposing the Amoco states that any material with the pro forma service agreement burden of buying and learning to use deviations from the tariff (which must be filed with the Commission. The numerous proprietary spreadsheet include those items excluded by dicta in Commission is continuing to consider in packages. Since statements other than Order No. 582) should be filed in order another proceeding how much statements I, J, and parts of H do not to be sure that there is no undue flexibility in contract terms should be generally contain complex formulae, the discrimination. permitted. On January 31, 1996, the loss of the formulae will not impair 2. Commission Response Commission issued a policy statement review of the data. that it is willing to entertain, on a APGA’s second request, that the The use of forms of service shipper-by-shipper basis, requests to electronic data be available from the agreements as the basis of contracts implement negotiated rates where pipeline if requested, is addressed in between a pipeline and its customers customers retain the ability to choose a section II.i.5 of this order. ensures that there are no unreasonable cost-of-service based tariff rate as a c. Section 154.5 Rejection of Filings differences among the pipeline’s recourse.8 In that policy statement the customers as to the rates, charges, Commission established a proceeding in Section 154.5 states that filings that services, or facilities, while minimizing Docket No. RM96–7–000 to explore how fail to comply with part 154 regulations the amount of paper filed with the much flexibility could be permitted, may be rejected by the Director of the Commission. A contract that conforms although it is likely in any event that Office of Pipeline Regulation (Director) to a pro forma service agreement need case-by-case application will be pursuant to the authority delegated to not be filed with the Commission necessary. the Director in § 375.307(b)(2).11 because the Commission has already 1. Requests for Rehearing considered and determined that the pro b. Section 154.4 Electronic and Paper forma service agreement is just and Media INGAA argues that the regulation reasonable. Any contract that deviates New § 154.4 requires electronic media does not give sufficient guidance to the in a material way from a pro forma filings in addition to paper copies.9 Director as to how to exercise this service agreement must be evaluated Section 154.4(a) states that a pipeline authority, even if this authority has not anew to determine that it is not unjust, must file information contained in been changed or augmented by the Rule. unreasonable, unduly preferential, or spreadsheet format electronically and INGAA seeks clarification that only otherwise unacceptable. continue to serve customers with paper patently deficient rate case filings can Many commenters to the NOPR copies of filings, but it does not require be rejected and that Staff would be requested the Commission to be more a pipeline to provide such information required to make such a determination specific as to what deviations or to its customers in an electronic format. within 15 days of the filing date. INGAA substantive additional provisions will APGA requests clarification that a states that this would give applicants trigger this filing requirement.6 To pipeline must, upon request, provide and intervenors a level of assurance that accommodate these requests the such spreadsheet information, including a rate case filing will proceed on time Preamble gave examples of provisions all formulas embedded in the under the indicated filing date, thus that would not normally be expected to spreadsheet, to its customers in an avoiding confusion as to when new be ‘‘material’’ deviations.7 electronic medium. In the alternative, rates would go into effect. Under The Commission will clarify the prior APGA requests rehearing of this issue. INGAA’s plan, if lesser deficiencies order. To illustrate, a pro forma service In the Rule, the Commission adopted were found, the applicant would have agreement may contain blanks to be a tab delimited ASCII format for most 30 days to rectify such deficiencies. filled in, or ranges for terms of service numeric data and a format compatible ANR and CIG request that the with the filing company’s spreadsheet Commission clarify that so long as there 6 For example, Columbia requested that the application for Statements I, J, and those is no ‘‘patent failure’’ to comply with Commission clarify that specifically drafted parts of Statement H containing state tax the Commission’s requirements, any provisions addressing flow rates, pressure obligations, maximum delivery obligations, term, deficiency may be cured by the pipeline and other ‘‘tariff-contemplated’’ items are not 8 Statement of Policy and Request for Comments and the filing date will be the effective ‘‘material’’ deviations. Amoco, et al., requested that in Docket Nos. RM95–6–000, Alternatives to date of the filing. the Commission clarify ‘‘material deviations,’’ such Traditional Cost-of-Service Ratemaking for Natural ANR and CIG further request that the that contracts must be filed which provide for any Gas Pipelines; and, RM96–7–000, Regulation of Commission reconsider the decision not difference (from that specified in the tariff) in Negotiated Transportation Services of Natural Gas maximum rates, rate design, balancing provisions, Pipelines, 74 FERC ¶ 61,076 (1996). penalties, operational flexibility, or any other 9 Section 154.4 provides, in pertinent part: 10 III FERC Stats. & Regs. ¶ 31, 025 at 31,435. variation. On the other hand, IPAA stated that the (a) General rule. All statements filed pursuant to 11 Section 154.5 states: legal concept of materiality may depend upon subpart D of this part, and all workpapers in A filing that fails to comply with this part may ‘‘where one resides in the food chain’’ and spreadsheet format, and tariff sheets other than be rejected by the Director of the Office of Pipeline suggested that all deviating agreements be filed. those in Volume No. 2, must be submitted on Regulation pursuant to the authority delegated to 7 III FERC Stats. & Regs. ¶ 31,025 at 31,385. electronic media. the Director in § 375.307(b)(2) of this chapter. Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9615 to set forth a procedure that would be d. Section 154.7 General Requirements additional information would, in most followed if a filing is deemed not in for the Submission of a Tariff Filing or cases, speed processing and reduce compliance with the Commission’s Executed Service Agreement requests for additional information or filing requirements. Specifically, ANR Section 154.7 is a new section setting complete filings. The regulations will be and CIG suggest that the Commission forth the content of a tariff filing or amended such that a filing under notify a pipeline in writing within 12 executed service agreement.13 subpart D requires a table or listing of days of filing of a rate case of any the cost of service, rate base and deficiencies in the filing and allow the 1. Transmittal Letter to Contain throughput underlying the proposed pipeline ten days to correct the Quantified Summary rates compared to the same information deficiency or request a waiver of a filing Section 154.7(a)(6) requires the letter underlying the last rate found by the requirement. ANR and CIG state that of transmittal to contain a statement of Commission to be just and reasonable. this procedure would still allow the the nature, the reasons, and the basis for 2. Motion to Place Reduced Rates Into Commission to act within 30 days of the the filing. The statement must include a Effect pipeline’s filing of the rate case. To the summary of the changes or additions extent there is a change or addition to made to the tariff or executed service i. Request for rehearing. Section the filing, ANR and CIG suggest that agreement, as appropriate. 154.7(a)(9) requires that the transmittal intervenors and protestors be permitted NGSA believes that the abbreviated letter contain either a motion, in case of to supplement their filings. ANR and form of the filing should contain a minimal suspension, to place the CIG state that this procedure is quantified summary of the proposed proposed rates into effect at the end of consistent with the 12 day period in changes as well as a narrative summary. the suspension period; or a specific which interested parties may intervene, NGSA states that § 154.7(a)(6) should statement that the pipeline reserves its comment or protest under § 154.210. require a table or listing of the cost of right to file a later motion to place the service, rate base and throughput proposed rates into effect at the end of 2. Commission Response underlying the proposed rates compared the suspension period. JMC Power Projects states that the Section 154.5 merely sets out, in the to the same information underlying the new regulation grants the pipeline the rate and tariff filing requirements, the last rate found by the Commission to be just and reasonable. NGSA argues that option as to when to file a motion to existing power of the Director to reject place suspended rates into effect—either 12 such information would enable parties tariff or rate schedule filings. Section in its initial letter of transmittal or later. to readily ascertain the magnitude and 154.5 signals the Commission’s intent to JMC Power Projects argues that a the sources of the changes being have the Director reject filings that do pipeline proposing to decrease its rates proposed and, thus, negate the need on not comply with the filing requirements admits that its current rates are unjust the part of many parties to receive a promulgated by this order. and unreasonable and has an incentive copy of the full filing. NGSA states that To the extent that the requests for to delay placing suspended decreased adding this small amount of quantified clarification only seek assurance that rates into effect. the regulation does not delegate any information to the abbreviated filing JMC Power Projects seeks clarification new power to the Director, they are could reduce the number of full filings that the motion of the pipeline to place granted. However, any specific the pipelines are requested to provide. suspended rates into effect pursuant to This request for rehearing is granted. guidelines or procedures to be followed § 154.206(b) is the same motion to be The burden to the pipeline to provide by the Director in exercising this filed as part of the transmittal letter the additional summary would be authority must be set out in part 375, pursuant to § 154.7(a)(9), and that the minimal. Although NGSA suggests that not in the pipeline filing requirements. pipeline must file a motion to place the the information could reduce requests The purpose of the regulation is to proposed rates into effect at the end of for full filings, the Commission accepts indicate that the Director’s power is to the suspension period. In the that, in some cases, the quantification reject a filing based on the procedural alternative, JMC Power Projects seek summary may engender additional inadequacy of the filing, not the rehearing and requests that the requests for full filings. Nonetheless, substance. Only the Commission rejects Commission find that when a pipeline considering the short time period in on the basis of substance. When a rate proposes a rate decrease, either no which the Commission and interested filing is procedurally correct but is not motion is necessary for the rates to go parties have to review the filing, this sufficient to determine just and into effect or, if a motion is necessary, reasonableness, the appropriate action is the pipeline must file a motion to place 13 Section 154.7 states, in pertinent part: for the Commission to reject the filing The following must be included with the filing the suspended rates into effect at the on the merits or to accept the filing but of any tariff, executed service agreement, or part end of the minimal suspension period. suspend the proposed rates pending a thereof, or change thereto. JMC Power Projects states that its hearing. To the extent a filing does not (a) A letter of transmittal containing: interpretation of the new regulations to include the information required by the * * * * * the effect that a pipeline is required to regulations and is so deficient that it (6) a statement of the nature, the reasons, and the file a motion to place reduced rates into basis for the filing. The statement must include a prejudices the Commission in the summary of the changes or additions made to the effect at the end of the suspension discharge of its duty to decide whether tariff or executed service agreement, as appropriate. period is consistent with past or not to investigate or suspend the A detailed explanation of the need for each change Commission practice. JMC Power increased rates, the Commission expects or addition to the tariff or executed service Projects states that allowing a pipeline agreement must be included. The natural gas the Director to reject the filing. company also must note all relevant precedents to delay placing decreased rates into relied upon to prepare its filing. effect beyond the minimal suspension 12 Section 375.307 delegates to the Director of the * * * * * period is unjust and unreasonable, Office of Pipeline Regulation the authority to reject (9) a motion, in case of minimal suspension, to particularly when customers in such a a tariff or rate schedule or filing if it patently fails place the proposed rates into effect at the end of the situation are not afforded refund to comply with applicable statutory requirements, suspension period; or, a specific statement that the and with all applicable Commission rules, pipeline reserves its right to file a later motion to protection. regulations, and orders for which a waiver has not place the proposed rates into effect at the end of the ii. Commission response. JMC Power been granted. suspension period. Projects is correct in stating that 9616 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations pipelines have an option to file a motion to place the rates into effect would be Many pipelines voluntarily provide to place suspended rates into effect required; for example, where it may not their customers with such a list. either in the letter of transmittal or later. be clear initially if it is a rate decrease However, the Commission declines to Also, the motion of the pipeline referred due to pancaked cases. Thus, the burden all pipelines with this to in § 154.206(b) is the same motion Commission will retain this option. obligation. Customers may keep abreast referred to in § 154.7(a)(9). Accordingly, the request for clarification of developments affecting pipeline However, the requested clarification that a pipeline is required to file a services by monitoring the ‘‘summary of that a pipeline is required to file a motion to place reduced rates into effect changes or additions made to a tariff’’ motion to place reduced rates into effect at the end of the suspension period, is required by § 154.7(a)(6) when a at the end of the suspension period is denied. pipeline files for a change. Further, this denied. The request is, in effect, asking information is available to the public on 3. Effective Date After Minimal for a special rule to govern proposed the Commission’s bulletin board system Suspension rate decreases. This is unnecessary as by accessing the FERC Automated the revised regulation is consistent with ANR and CIG believe that in System for Tariff Retrieval (FASTR). the purposes of the NGA. situations where the suspension period Section 4(e) of the NGA authorizes the is likely to be minimal, pipelines will e. Section 154.101 Form Commission to suspend operation of a file the motion to place proposed rates Williston Basin points out that schedule and defer the use of a rate into effect with the transmittal letter to § 154.101 contains a typographical error. pending a hearing ‘‘but not for a longer ensure that the rates will be effective as As written, it requires that the paper period than five months beyond the soon as the suspension period ends. copy of a tariff sheet be reproduced on time when it would otherwise go into ANR and CIG ask whether it was the 81⁄2 by 11 inch sheets of paper with effect.’’ 14 If the proceeding has not been Commission’s intent that, where the margins of 1⁄4 inches on the top, bottom, concluded and an order made at the pipeline had reserved its right to file a and left sides, and a margin of 1⁄2 inch expiration of the suspension period, the later motion, the pipeline would lose a on the right side. The NOPR stated that proposed change shall go into effect ‘‘on day or several days before rates were there is to be a 1 and 1⁄4 inch margin on motion of the natural gas company effective. If so, ANR and CIG request the left side of the sheet. making the filing.’’ 15 The Act requires clarification and rehearing. Williston Basin is correct. The the motion; otherwise, the rates do not The request for rehearing is denied. A regulation has been modified to require go into effect. suspended rate may not go into effect that the margins on the top, left, and As a practical matter, where rates prior to the motion of the pipeline. The bottom of the tariff sheet must be 11⁄4 have been suspended for a minimal procedures for motioning rates into inches. effect after suspension are the same period as allowed under the statute, a f. Section 154.107 Currently Effective regardless of the length of the hearing could not possibly be concluded Rates by the expiration of the period. suspension period. NGA section 4(e) 17 The NGA states that refunds may be requires that suspended rates are to go New § 154.107 governs the tariff ordered ‘‘where increased rates or into effect ‘‘on motion’’ of the pipeline, sheets setting forth the natural gas charges are thus made effective.’’ 16 not before the motion is made. Former company’s currently effective rates. Historically, the Commission has § 154.67(a) read that the proposed rate Section 154.107(b) requires that all rates 18 considered the suspension of a rate as ‘‘shall become effective as of the date of be stated in thermal units. a necessary step to assure that refunds receipt of such motion by the 1. Requests for Rehearing may be ordered when appropriate. The Commission or the expiration of the Great Lakes requests clarification or refund is appropriate where the suspension period, whichever is later.’’ rehearing on the grounds that sufficient Commission ultimately determines that Therefore, where the pipeline includes time is needed to permit pipelines to the proposed rate moved into effect at a motion in its filing and the proposed identify and resolve the issues related to the end of the suspension period rates are suspended for a minimal conversion to thermal units, and to (motion rate) is too much of an increase period, the rates will become effective modify existing contractual and tariff over the last rate found to be just and on the date proposed. Where the provisions where the current reasonable (the refund floor). Thus, no pipeline reserves its right to file a later arrangements are in volumetric units. refund is possible where a decrease is motion and the rates are suspended for Great Lakes states that the contractual proposed. Even where the Commission a minimal period, the rates will go into changes necessary to fully convert to ultimately finds that the rates should effect, later, on motion of the pipeline, thermal rates may result in a have been decreased further than as is required by the NGA. reallocation of costs to effectuate the proposed, the motion rate would be less 4. Quarterly List of Tariff Sheets change in rates. than the refund floor. Great Lakes requests clarification that Usually the Commission accepts a In its Initial Comments, AGD conversion to thermal units can be proposed rate decrease without recommended a general reporting implemented through a compliance suspension. Where the Commission obligation for a pipeline to provide to its filing made under § 154.203; and, that does not suspend the effective date of a customers, quarterly, a list of currently any rates restated in thermal units can proposed decrease, a section 4(e) motion effective tariff sheets, whether or not the utilize the cost of service and billing is not required and the proposed pipeline files any rate increase units (converted to dekatherms) decrease goes into effect on the date applications. The Rule states that AGD’s underlying the filing pipeline’s proposed by the pipeline in its filing. suggested summary appears in § 154.7 currently effective rates. However, it may be appropriate, under and thus, what AGD seeks is already required. AGD maintains on rehearing Chevron, USA Inc., and Shell Western certain circumstances to suspend a rate E&P Inc. (Designated Shippers) argue decrease and in such instances a motion that its recommendation has not been satisfied by the indicated regulation nor 18 Section 154.107(b) provides that ‘‘[a]ll rates 14 15 U.S.C. 717c(e). by any other part of Order No. 582. must be stated clearly in cents or dollars and cents 15 Id. per thermal unit. The unit of measure must be 16 Id. 17 15 U.S.C. § 717c(e). stated for each component of a rate.’’ Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9617 that to require a change in these rates, promise of a restructured and integrated § 154.107 without filing a major rate the Commission must find substantial pipeline grid a reality. Accordingly, the case filing under subpart D.23 evidence that stating rates on an Mcf Commission intends to establish, by rule, g. Section 154.109 General Terms and basis is no longer a just and reasonable standards governing pipelines’ conduct of 19 crucial business practices and the electronic Conditions practice. means by which pipelines will exchange The Rule states that the Commission Section 154.109 requires that a information with their customers and third- pipeline set forth in its tariff its discount ‘‘does not intend to actively enforce this parties.21 section until one year after the effective policy and the order in which each date of this rule.’’ 20 Designated At a conference held on September pipeline charge will be discounted.24 Shippers maintain that this delay in 21, 1995, to examine the industry’s The Rule stated that § 154.109(c) merely enforcement does not adequately progress towards standardization, one formalizes the Commission’s policy on address the hardships faced by these participant pointed out the failure of the recognition of discounts as enunciated shippers or give the affected parties a industry to decide on whether to require in Natural.25 forum to address the significant factual nominations to be reported in Mcf or PEC seeks clarification that the determinations that will have to be MMBtu as an example of the lack of decision in Natural left individual made in converting rates and capacity standardization in the industry.22 The pipelines free to argue, based on their entitlements from Mcf units to a thermal Commission’s adoption of the provision individual facts and circumstances, that basis. Designated Shippers state that at § 154.107 requiring rates to be stated the order of discounting in Natural did these determinations are all the more in MMBtu or Dth is an outgrowth of its not apply. INGAA seeks clarification, or critical on pipelines where the heating conviction that standardized business in the alternative rehearing, that this value of the gas varies widely from practices are essential to an integrated provision does not apply to existing receipt point to receipt point, and where national pipeline grid. tariff provisions that provide for a permanent discount mechanism contract capacity, denominated in Mcf Further, staff reviewed the tariffs of 11 negotiated between parties in a previous units, will have to be converted. pipelines which state rates exclusively regulatory proceeding. The Commission Designated Shippers argue that the on the basis of Mcf. All but three assure clarifies that if a pipeline’s tariff proper forum for determining these facts redelivery of thermally equivalent contains an existing provision governing is an individual pipeline rate case. volumes. In other words, the pipeline the order of discounts, accepted by the If the Commission does not grant redelivers a sufficient volume (in Mcf) Commission, no modification to the rehearing, Designated Shippers request to ensure the natural gas delivered tariff provision is required under clarification that implementing Order contains the same heating value as the § 154.109. The Commission further No. 582 will not require an effective rate natural gas received. In this case, there is no guarantee that the volume (in Mcf) clarifies that a pipeline, in a filing to increase for any individual shipper or comply with this section, may attempt delivered will exactly equal the volume result in the infringement of any to show that an order of discounting (in Mcf) received. The requirement that shipper’s contract rights. Designated other than that set forth in Natural natural gas be redelivered in thermally Shippers state that if a conversion is should apply. made at the average Btu factor being equivalent volumes underscores the shipped through the pipeline, some nature of the commodity being traded. h. Section 154.206 Motion to Place shippers will benefit, and other shippers Natural gas is of worth because of its Suspended Rates Into Effect heating content. The true commodity is will be harmed. 1. Effective Date Where Modifications the heating value of the natural gas. are Ordered 2. Commission Response Rates should be reflective of the true The Commission is committed to commodity traded. Section 154.206(a) requires that, when standardization of business practices in Stating rates in MMBtu or Dth as rates have been suspended for more the natural gas industry. Most recently, opposed to Mcf could cause some than a minimal period and the the Commission underscored that shippers to pay higher rates, but any Commission has ordered changes or the commitment in its advance notice of such proposed rate changes will not be rates include costs of facilities that are proposed rulemaking for standards for made without Commission review to not in service, the motion to place business practices of interstate natural ensure they are just and reasonable. All suspended tariff sheets into effect must gas pipelines: pipelines making the switch must file 23 Trailblazer Pipeline Company and Canyon As a result of restructuring, the gas appropriate revisions to their tariffs. At Creek Compression Company have filed to restate industry is becoming a national marketplace. that time, parties can raise their their rates on a thermal basis in compliance with In order to establish a more efficient and concerns about paying higher rates as a Order No. 582. Neither did so in a general rate seamless pipeline grid, where buyers can result of conversion to thermal units. proceeding. 24 easily and efficiently obtain and transport gas All such concerns will be addressed Section 154.109(c) provides: The general terms and conditions of the tariff from all potential sources of supply, the when the Commission determines development of standardized methods of must contain a statement of the order in which the whether the proposed rates are just and company discounts its rates and charges. The conducting business along with standardized statement, specifying the order in which each rate methods of communication is critical. reasonable. All issues regarding implementation of § 154.107(b) can be component will be discounted, must be in Without common business practices and a accordance with Commission policy. common language for communication, the addressed in the individual proceeding 25 III FERC Stats. & Regs. ¶ 31,025 at 31,394 speed and efficiency with which shippers to effectuate the new thermal rates. (citing Natural Gas Pipeline Company of America can transact business across multiple Therefore, the Commission will not (Natural), 69 FERC ¶ 61,029, (1994), reh’g, 70 FERC pipelines is now, and will continue to be, grant rehearing. ¶ 61,317 (1995)). Under the policy, ‘‘[t]he first item of the overall reservation charge discounted will be severely compromised. The industry must We grant Great Lakes’ request for expeditiously complete standardization of the GRI surcharge (for member pipelines), followed crucial business practices to make the clarification that a pipeline may file to by the base rate reservation charge, Account No. state its rates on a thermal basis under 858 or other transition cost surcharges, and last, all GSR reservation surcharges. Other non-transition 19Designated Shippers cite to Mobil Oil Corp. v. reservation surcharges will be attributed as agreed FPC, 483 F.2d 1238 (D.C. Cir. 1973). 21 73 FERC ¶ 61,104 (1995). by the pipeline and its customers in individual 20 III FERC Stats. & Regs. ¶ 31,025 at 31,392. 22 Id. at 61,323. proceedings.’’ 69 FERC at 61,117 n.23. 9618 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations be filed at least one day prior to the date answer to the problem because the not comply with the changes mandated the sheets are to take effect.26 regulations governing the time of by the Commission’s suspension order. i. Requests for rehearing. AGD is motions placing rates in effect provides Pursuant to § 154.206, the motion must concerned that the regulations do not only 24 hours within which the be accompanied by revised tariff sheets adequately assure pipeline compliance pipeline’s compliance with the reflecting any changes ordered by the with whatever conditions or Commission’s required changes in its Commission. A motion that does not requirements for changes in rates that rate filing can be determined. AGD reflect the ordered changes would be in may have been imposed by the states that there is no assurance that, in violation of the Commission order and Commission’s suspension order. AGD individual cases, sufficient time will be the subject rates would be unlawful. recommends that, in situations where provided to ascertain that the pipeline’s 2. Withdrawal After Minimal the Commission has required changes in compliance with Commission-mandated Suspension the filed rates, a minimum period of 14 changes in its rates has occurred. AGD days be fixed as the time between the states that there is no regulatory bar to Section 154.206(c) provides that filing of a motion to place rates in effect the pipeline’s ability to place in effect, where the rate is suspended for a and the proposed effective date. AGD after the suspension period, rates which minimal period and the pipeline has also recommends that the provision do not comply with the changes included in its transmittal letter recommended in its Initial Comments mandated by the Commission’s pursuant to § 154.7(a)(9), a motion to be added to Section 154.206(a). 27 suspension order. place the proposed rate into effect at the AGD points out that the preamble to ii. Commission response. The NOPR end of the suspension period, the the Rule states that ‘‘individual had proposed that when rates have been change will go into effect, subject to suspension orders may require pipelines suspended for more than a minimal refund, on the authorized effective date. to make compliance filings earlier, to period and the Commission has ordered ANR and CIG seek clarification that if reflect changes required by the changes or the rates include costs of the pipeline includes a motion with the Commission.’’ 28 However, AGD states facilities that are not in service, the transmittal letter, and the Commission that this language is not a satisfactory motion to place suspended tariff sheets accepts the filing but requires changes into effect must be filed no less than 30 to the pipeline’s proposal, the pipeline 26 Section 154.206 states, in pertinent part: days nor more than 60 days prior to the will still have the option of withdrawing § 154.206 Motion to place suspended rates into date the sheets would take effect. AGD’s its motion before the rates, with the effect Initial Comments had proposed that in Commission modifications, go into (a) If, prior to the end of the suspension period, effect. the Commission has issued an order requiring addition to the 30–60 day opportunity changes in the filed rates, or the filed rates recover to ascertain whether pipeline This clarification is denied. As costs for facilities not certificated and in service as compliance with any Commission- discussed above, the pipeline may of the proposed effective date, in order to place the ordered changes in its rates had choose to reserve its right to file a later suspended rates into effect, the pipeline must file motion and rates, suspended for a a motion at least one day prior to the effective date occurred, that the regulations also requested by the pipeline. The motion must be include a provision which negated the minimal period, will go into effect, later, accompanied by revised tariff sheets reflecting any pipeline’s ability to place into effect any on motion of the pipeline. Where the changes ordered by the Commission or suspended rates which did not reflect pipeline chooses to include a motion in modifications approved by the Commission during the suspension period under § 154.205. The filing changes the Commission had ordered. its filing and the proposed rates are of the revised tariff sheets must: Columbia commented that the proposed suspended for a minimal period, the (1) comply with the requirements of subparts A, requirement would cause pipelines to rates will become effective on the date B, and C of this part; estimate test period data for that portion proposed. However, the pipeline may (2) identify the Commission order directing the of the test period occurring after the condition its motion on the revision; Commission’s accepting the proposed (3) list the modifications made to the currently date the pipeline must make the motion effective rate during the suspension period, the rate filing. filing without modification. docket number in which the modifications were CNG and Columbia recommended no i. Section 154.208 Service on filed, and identify the order permitting the change to the practice of allowing Customers and Other Parties. New modifications. pipelines to file motion rates one day § 154.208 formally requires the filing (b) Where the Commission has suspended the before the effective date. CNG company to serve its customers and effective date of a change of rate, charge, classification, or service for a minimal period and commented that the proposed rule state regulatory commissions on or the pipeline has not included a motion in its would require pipelines to rely on before the filing date. The regulation transmittal letter, or has specified in its transmittal estimated plant balances in determining requires that all customers and state letter pursuant to § 154.7(a)(9), that it reserves its the level of plant in service at the end commissions receive an abbreviated right to file motion to place the proposed change 29 of rate, charge, classification, or service into effect of the test period. Further, CNG stated, form of the filing. Customers and state at the end of the suspension period, the change will the pipeline would be unable to go into effect, subject to refund, upon motion of the determine the status of negotiations 30 29 Section 154.208 Service on customers and pipeline. days in the future, and would be other parties. (c) Where the Commission has suspended the compelled to move to make the rate (a) On or before the filing date, the company must effective date of a change of rate, charge, serve, upon all customers as of the date of the filing classification, or service for a minimal period and increase effective at the earliest possible and all affected state regulatory commissions, an the pipeline has included, in its transmittal letter date. In light of these comments to the abbreviated form of the filing consisting of: the pursuant to § 154.7(a)(9), a motion to place the NOPR, the revised regulation was Letter of Transmittal; the Statement of Nature, proposed change of rate, charge, classification, or modified to continue the current Reason, and Basis; the changed tariff sheets; a service into effect at the end of the suspension summary of the cost-of-service and rate base; and, period, the change will go into effect, subject to practice of allowing pipelines to file summary of the magnitude of the change. refund, on the authorized effective date. motion rates one day before the effective (b) On or before the filing date, the company must 27 That proviso states: date. serve a full copy of the filing upon all customers Provided, however, that no rates will be made The modifications requested by AGD and state regulatory commissions that have made a effective pursuant to motion until after the party are denied. AGD is incorrect in stating standing request for such service. proposing a rate change has satisfied all conditions (c) Within 48 hours of receiving a request for a imposed by the Commission with regard to the the there is no ‘‘regulatory bar’’ to the complete copy from any customer or state contents of the rate increase filing. pipeline’s ability to place in effect, after commission that has not made a standing request, 28 III FERC Stats. & Regs. ¶ 31,025 at 31,400. the suspension period, rates which do the company must serve a full copy of any filing. Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9619 commissions with an interest may then state commissions on the filing date. to receive service of a complete copy of request a full copy. The pipeline must Columbia states that service effected in a rate filing on or before the filing date. serve the full copy within 48 hours. this manner, along with the form of In the alternative, APGA requests However, pipelines must comply with notice pursuant to § 154.209, is rehearing of this issue. any customer’s standing request to sufficient to assure adequate notice. The request is granted in part. In past receive a complete filing as the initial The requests for rehearing are denied. practice, a party could designate a served filing. Customers are defined as In light of the responses to the NOPR, recipient at the time it files an customers of the pipeline with a the revised regulation is a combination intervention or when the service list is contract for service as of the date of the of the alternatives suggested by several created at hearing. Now that the filing rate case filing.30 commenters and represents a reasonable company must serve its customers on or middle ground between requiring before the filing date, there must be a 2. Service Group service of a complete filing and service procedure for designating service NGSA asks the Commission to of just the transmittal letter. While recipients at the earlier time. The include ‘‘economically impacted reducing the filing burden to the regulation will be revised to provide parties’’ as part of § 154.208. NGSA pipeline, this course assures that all that a customer may designate a states that some gas producers effect current customers and state regulatory representative or agent to receive service title transfer of their gas either at the commissions receive complete notice on or before the filing date as suggested wellhead or at the outlet of a non- adequate to making informed decisions by APGA. The filing company is jurisdictional gas gathering system. about the proposal. Adding or deleting required to serve only one copy per NGSA states that because gas producer recipients to the required service list customer, not multiple copies. However, prices and wellhead operations are would upset the balance achieved by while not required, parties may agree to affected by the rates, terms and the regulation. arrange for multiple recipients or conditions of the pipeline’s tariff, they 3. ‘‘Served’’ or ‘‘Received’’ copies. It would be reasonable to expect should enjoy the full rights of any other the recipient to bear the cost of this potential intervenor to a rate case, NGSA requests that the Commission additional service. including the expeditious receipt of the clarify or modify § 154.208(c) so that pipeline’s rate case documents. NGSA pipelines are required to send the full 5. 48 Hours states that ‘‘economically impacted rate case filing to a requestor such that Columbia Gas Transmission parties’’ includes those purchasers of it is received within 48 hours of their Corporation and Columbia Gulf short-term released capacity who may request. APGA and NGSA state that Transmission Company (Columbia) and not have ‘‘a contract for service as of the § 154.208(c) permits the pipelines to INGAA request clarification that the date of the rate case filing.’’ NGSA states engage regular U.S. postal services 48 parties may interpret § 154.208(c), that economically impacted parties hours after the request had been made requiring action within 48 hours, to should not be excluded from receiving and receive the full filing two or three mean two business days, thereby the pipeline’s rate case filing or because days after it is postmarked. APGA and removing the concern that responsive the timing of the rate case does not NGSA believe that the existence of action need not be taken on holidays or coincide with the timeframe specified overnight express delivery services weekends. within a contract. makes it possible for parties to receive Columbia’s concern is unnecessary. America Forest and Paper Associates a full filing within 48 hours of their Rule 2007 provides that ‘‘any period of (AF&PA) requests that on rehearing the request. time’’ prescribed by a Commission rule Commission revise § 154.208 to provide The request for rehearing is denied. is computed to exclude the day of the that, in addition to customers and Rule 2010 governing the timing of act or event from which the time period affected state commissions, the service states that service is made when begins. Further, the last day of the time pipelines must serve tariff filings on the document is deposited in the mail period is not included if it is a weekend interested parties, such as trade or delivered in another manner.31 The or holiday, in which case the period associations and customer groups, and increased burden of requiring pipelines ends at the close of business on the next their representatives. AF&PA argues that to ensure delivery within 48 hours is day that is not a weekend or holiday.32 trade associations and customer groups out of balance to the potential benefit to Nonetheless, to avoid any confusion the play an important role in proceedings parties receiving the documents earlier. regulations will be revised to state that before the Commission and enable the However, while not required, parties the pipeline must respond to such Commission to conduct an efficient may agree to arrange for overnight requests within two business days. decision-making process by allowing it delivery. It would be reasonable to to consider the views of many interested expect the recipient to bear the cost of 6. Electronic Version parties channeled through one source. this additional service. NGC argues that the Commission On the other hand, Columbia states erred by failing to require interstate that the requirement to serve even the 4. Service Recipient pipelines to provide shippers with an abbreviated copy upon all customers is APGA states that it is the customer’s electronic version of their filing. NGC unduly burdensome. To illustrate, representative or agent, i.e., attorney or states that the provision does not Columbia states that, Columbia consultant, who has the most urgent require pipelines to honor a customer’s Transmission, in addition to its firm need to review a complete copy of the request to receive a copy of the filing in customers, presently serves 300 filing in order to have time to prepare electronic format. interruptible transportation customers, a motion to intervene, protest or NGC states that rather than forcing and Columbia Gulf serves 200 comments within the deadline provided customers to wait until the tariff data is interruptible customers. Columbia by the Rule for the filing of such entered into the Commission’s FASTR continues to believe that the Rule pleadings. APGA requests that the system, which can take weeks, should be modified to require service Commission clarify that a customer may customers should have instant access to only upon firm customers and affected designate a representative or agent also the full filing, through the acquisition of

30 III FERC Stats. & Regs. ¶ 31,025 at 31,403. 31 18 CFR 385.2010. 32 18 CFR 385.2007(a). 9620 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations the data in a standardized electronic calendar day standard achieves this removed because it is not necessary and format directly from the applicant. NGC balance. The request for rehearing is may cause confusion. states that since the pipelines are denied. l. Section 154.303 Test Periods. already required to file electronically, k. Section 154.301 Changes in Rates there will be little added burden or cost Although § 154.303 is a complete to making electronic versions of their PEC Pipelines request clarification as redraft of former § 154.63(e)(2) (i) and filings available. to what items are considered ‘‘rate (ii), the revised regulation maintains the Under §§ 154.4 and 154.209 of the fixing adjustments’’ and which are same time scheme for the test period.36 regulations, pipelines must file the form not.35 PEC Pipelines requests The test period consists of a base period of notice, tariff sheets, and statements clarification that cost-of-service items, followed by an adjustment period. The and workpapers required by subpart D contract demand levels, and throughput base period consists of 12 consecutive of the regulations electronically. In are not ‘‘rate fixing adjustments,’’ for months of the most recently available Order No. 582, the Commission purposes of this requirement. PEC actual experience. The last day of the recognized that both the electronic and Pipelines state that the mere fact that an base period may not be more than four paper versions of the filing represent the element of cost-of-service—such as months prior to the filing date. The official filing.33 Parties receiving service labor costs—has increased is not the adjustment period is a period of up to under § 154.208 have a right to receive type of ‘‘rate fixing adjustment’’ that nine months immediately following the all or part of the official filing should trigger an additional workpaper base period. Section 154.303 clarifies that the depending on their election. Since the requirement. PEC Pipelines state that pipeline must remove from rates moved electronic portion of the filing is part of the same is true with respect to contract the official filing, service would include demand levels and throughput. PEC 36 Section 154.303 Test periods. the pertinent parts of the electronic Pipelines state that the level of O&M version of the filing. However, in Statements A through M, O, P, and supporting expenses and throughput are already schedules, in § 154.312 and § 154.313, must be recognition that not all parties would be covered by the schedules set forth under based upon a test period. interested in receiving the electronic § 154.312, Composition of Statements. (a) If the natural gas company has been in portion of the filing, a party may ask not On the other hand, PEC Pipelines state, operation for 12 months on the filing date, then the to receive the electronic portion of the test period consists of a base period followed by an certain items do affect the setting of the adjustment period. filing, if that is its wish. unit rate, such as cost allocation and (1) The base period consists of 12 consecutive j. Section 154.210 Protests, rate design; logically, these items are months of the most recently available actual experience. The last day of the base period may not Interventions, and Comments those that should be considered ‘‘rate be more than 4 months prior to the filing date. fixing adjustments’’ as addressed in Section 154.210 states that (2) The adjustment period is a period of up to 9 § 154.301(c). months immediately following the base period. interventions, comments, and protests (3) The test period may not extend more than 9 must be filed within 12 calendar days of In response to PEC Pipelines’ concern the Commission will revise this section months beyond the filing date. the filing date and comments must be (4) The rate factors (volumes, costs, and billing filed at the same time as interventions by substituting the term ‘‘change in rates determinants) established during the base period and protests.34 or charges’’ for ‘‘rate fixing may be adjusted for changes in revenues and costs adjustments.’’ This change is more in which are known and measurable with reasonable APGA seeks rehearing on this issue accuracy at the time of the filing and which will and reiterates its request that parties be line with the current terminology where become effective within the adjustment period. The allowed a minimum of 15 days to file parties no longer refer to ‘‘fixing’’ a rate base period factors must be adjusted to eliminate interventions. but ‘‘making’’ a rate change. The nonrecurring items. The company may adjust its The NOPR had proposed that the Commission agrees with PEC Pipelines base period factors to normalize items eliminated as that the mere fact that an element of the nonrecurring. interventions, comments, and protests (b) If the natural gas company has not been in be filed within ‘‘10 days’’ of the filing. cost-of-service has increased does not operation for 12 months on the filing date, then the Many commenters objected to changing trigger an additional workpaper test period must consist of 12 consecutive months from the ‘‘former 15-day’’ time period requirement. Pipelines need to file ending not more than one year after the filing date. Rate factors may be adjusted as in paragraph (a)(4) and numerous alternatives were alternate material when they are of this section but must not be adjusted for suggested for comment periods ranging proposing a ratemaking change that is occurrences anticipated after the 12-month period. from 10 to 30 days. The Commission has inconsistent with a prior Commission (c)(1) Adjustments to base period experience, or balanced the need to allow sufficient decision directly involving the filing to estimates where 12 months’ experience is not company. Further, as the Commission available, may include the costs for facilities for time for interested parties to review a which either a permanent or temporary certificate filing with the need for the proceeding does not require that a specific rate of has been granted, provided such facilities will be to progress swiftly. The use of the 12 return must be used in subsequent in service within the test period; or a certificate filings, the parenthetical language is application is pending. The filing must identify facilities, related costs and the docket number of 33 III FERC Stats. and Regs., ¶ 31,025 at 31,437. each such outstanding certificate. Subject to 34 Section 154.210 Protests, interventions, and 35 Section 154.301 (c) provides: paragraph (c)(2) of this section, adjustments to base comments A natural gas company filing for a change in rates period experience, or to estimates where 12 months’ (a) Unless the notice issued by the Commission or charges must be prepared to go forward at a experience is not available, may include any provides otherwise, any protest, intervention or hearing and sustain, solely on the material amounts for facilities that require a certificate of comment to a tariff filing made pursuant to this part submitted with its filing, the burden of proving that public convenience and necessity, where a must be filed in accordance with § 385.211 of this the proposed changes are just and reasonable. The certificate has not been issued by the filing date but chapter, not later than 12 days after the subject tariff filing and supporting workpapers must be of such is expected to be issued before the end of the test filing. A protest must state the basis for the composition, scope, and format as to comprise the period. Adjustments to base period may include objection. A protest will be considered by the company’s complete case-in-chief in the event that costs for facilities that do not require a certificate Commission in determining the appropriate action the change is suspended and the matter is set for and are in service by the end of the test period. to be taken, but will not serve to make the hearing. If the rate fixing adjustments presented are (2) When a pipeline files a motion to place the protestant a party to the proceeding. A person not in full accord with any prior Commission rates into effect, the filing must be revised to wishing to become a party to the proceeding must decision directly involving the filing company, the exclude the costs associated with any facilities not file a motion to intervene. company must include in its working papers in service as of the earlier of the effective date or (b) Any motion to intervene must be filed not alternate material reflecting the effect of such prior the end of the test period. later than 12 days after the subject tariff filing in decision. (For purposes of this section, rate of (d) The Commission may allow reasonable accordance with § 385.214 of this chapter. return is not a rate fixing adjustment.) deviation from the prescribed test period. Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9621 into effect the cost of any facilities not to include the costs of facilities under are known and measurable with certificated (where a certificate is construction for any of that five-month reasonable accuracy at the time of the required) and in service as of the end of period even if the facilities are in filing and which will become effective the test period. service by the end of the adjustment within the adjustment period. period. Likewise, Williston Basin states, 1. Base Period Accordingly, the regulation will be if the rates are suspended until the end changed to allow a pipeline to file a MRT and Williston Basin request that of the adjustment period, the pipeline’s motion to place rates into effect that the Commission grant rehearing and motion filing would still be made before include costs associated with facilities amend § 154.303(a)(1) to lengthen the the end of the adjustment period and not in service as of the effective date time from the last day of the base period the exact costs of the facilities would subject to removal of such costs where to the filing date from four months to not be known on the day the motion is the facilities are not in service by the five months. MRT states that no made. end of the test period. pipeline would need to wait the full five PEC states that the Commission months to file, but for pipelines with should clarify that it did not intend to m. Section 154.304 Format of small staffs, like MRT, an additional depart from past practice in Statements, Schedules, Workpapers, month would greatly facilitate the promulgating § 154.303 and except from and Supporting Data timely filing of a high-quality initial its § 154.303(c)(2) requirement costs Section 154.304 requires a narrative filing and Statement P. Williston Basin associated with routine facility explanation of each proposed argues that no justification has been construction. PEC states that the adjustment to base period actual given in Order No. 582 for reducing the clarified regulation would read as volumes and costs.37 The Rule indicated already limited amount of time which a follows: the Commission’s intention to adopt pipeline has to prepare its rate filings. When a pipeline files a motion to place two of NGSA’s suggestions; 38 however, These requests, in effect, seek to set rates into effect, the filing must be revised to these changes did not appear in the the test period back one month. This the exclude the costs associated with any regulatory text. The Commission is Commission is reluctant to do. The facilities for which specific certificate amending §§ 154.304 and 154.311 to regulations are constructed so that the authorization is required but is not expected reflect NGSA’s suggestions that rate paid by a customer is based upon to be granted or not in service by the end of the test period. narrative explanations be placed at the representative costs recently incurred by beginning of the specific statements to the pipeline for providing the services PEC states that the Commission which they apply and that statement to that customer. The regulations should also clarify that costs through updates be provided to parties continue to set the cutoff date for these the end of the test period (not the earlier specifically requesting them. representative costs at four months of the effective date or the end of the test before the filing. MRT and Williston period as stated in Order No. 582) may n. Section 154.305 Tax Normalization Basin have not shown that this period be included in rates. PEC states that if Section 154.305 requires pipelines to is unreasonable. the Commission does not so clarify its use tax normalization to compute the regulations, the end of test period 2. Costs of Facilities for Which a income tax component of the cost-of- analysis will be skewed because not all Certificate Application is Pending service and to adjust rate base by of the costs of facilities at the end of the accumulated deferred income taxes i. Requests for rehearing. Williston test period will be included, leading to related to components of the cost-of- Basin seeks rehearing of the mismatches in elements of cost of service. requirements of § 154.303(c). Section service. PEC argues that costs applicable On rehearing, APGA requests that the 154.303(c)(1) permits a pipeline to to new facilities could be excluded on Commission promulgate amendments to include, in adjustments to the base grounds that the facilities were not in its regulations to curtail the practice period, costs of facilities for which a service on an effective date occurring whereby pipelines eliminate or reduce certificate application is pending. earlier than the end of the test period, their accumulated deferred income tax Section 154.303(c)(2) requires that when even though volumes applicable to (ADIT) account balance, which is a pipeline files a motion to place the transportation through the facilities typically deducted from rate base, and proposed rates into effect, the tariff would be reflected in rates if the correspondingly increase their rate base filing must be revised to exclude the deliveries commenced prior to the end and hence their return, when a pipeline costs associated with any facilities not of the test period. PEC states that the undergoes a merger. in service as of the earlier of the basic objective of synchronizing all rate The request for rehearing is denied. effective date or the end of the test elements at the end of the test period Because the request concerns a period. will be thwarted. PEC states that the ratemaking policy, it is beyond the Williston Basin states that there is a proposed revised § 154.303(c)(2) would scope of this rulemaking. problem where a pipeline files its correct this inconsistency. motion to put its proposed rates into ii. Commission response. These o. Section 154.311 Updating of effect before the end of the adjustment requests are granted. The regulation will Statements period. In those circumstances, be revised to return to the previous Certain Statements and Schedules practice. Typically, at the end of the Williston Basin argues, the pipeline must be updated, once, 45 days after the suspension period, the pipeline files a should be permitted to include the cost end of the test period. of the facilities estimated to be in motion to place the proposed rates, as service at the end of the adjustment adjusted for any Commission 37 Section 154.304(b) provides: period, subject to true-up when the determinations, into effect. The The data in support of the proposed rate change actual costs are known. requirement that the motion rates not must include the required particulars of book data, Williston Basin states that if the include costs through the end of the test adjustments, and other computations and Commission suspends the proposed period, when the effective date is information on which the company relies, including a detailed narrative explanation of each rates for one day but the adjustment earlier, negates the ability, otherwise proposed adjustment to base period actual volumes period does not end for another five provided by the regulations, to adjust and costs. months, the pipeline would not be able for changes in revenues and costs which 38 III FERC Stats. & Regs. ¶ 31,025 at 31,405. 9622 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations

INGAA requests clarification that the p. Section 154.312 Composition of the Commission should grant rehearing Commission did not intend nine 12- Statements and require the information submitted under Schedules G–1 through G–6 to be month running totals but rather 1. Schedule D–1 intended a monthly total for each month filed concurrently with a pipeline’s rate in the nine-month period with a single The PEC Pipeline Group suggests that filing. set of updates encompassing a 12-month the filings would be more APGA’s request for rehearing is comprehensible and consistent if period. Second, INGAA states that the denied. The Commission has required a § 154.312, Schedule D–1, were amended 45-day update requirement is summary Statement G to provide to include the functionalization of the as enough information to begin the insufficient time for this much data to adjusted test period accumulated analysis of the rate case. However, the be assembled since the books will not reserve for depreciation and customer specific information is not close until at least 10–15 days past the amortization. PEC Pipeline Group also required immediately; and, is filed 15 end of the test period. INGAA requests suggests a new Schedule D–3 showing days later to ease the burden of the clarification that a period of 75 days be the depreciation reserve balance compilation of such large scale given for such updates. Third, INGAA applicable to the portion of the information on the filing pipeline. urges the Commission to authorize the depreciation rate not yet approved. PEC ii. Confidentiality. ANR and CIG join Director of OPR and presiding ALJ to Pipeline Group also suggests that INGAA in urging the Commission to suspend or terminate the update Schedule D–1 should not be part of the reconsider and incorporate the requirements if a settlement is pending workpapers. confidentiality provisions of the approval, hearings have been Schedule D–1 will be amended to INGAA/AGD agreement in a final rule completed, or an ALJ’s decision is include the functionalization of the as on rehearing.39 In the alternative, ANR pending. INGAA states that updates in adjusted test period accumulated and CIG request that the Commission these situations would serve no reserve for depreciation and permit pipelines to have the option, in purpose. amortization. However, a new Schedule all instances where customer specific D–3 is not necessary since the information is called for (for example, in The Commission did not intend that information required to reflect the the schedules required in Statement G, updates would have nine different 12- depreciation reserve balance applicable the Index of Customers and Form 2 month running totals for each month to the depreciation rate not yet Revenues and Discounts), of using since updates would be filed 45 days approved can be shown on the same customer codes to identify customers. after the end of the test period. Also, schedule. Schedule D–1 is properly a The PEC Pipeline Group disagrees updates must include a monthly total workpaper since it reflects supporting with the Commission’s position for each month in the nine-month data for Statement D. regarding pipelines’ market power in period with a single set of updates today’s market and regulatory 2. Statement G, Revenues, Credits, and encompassing a 12-month period. environment. The PEC Pipeline Group Billing Determinants INGAA’s request for clarification on this states that pipelines compete with one issue is granted. Statement G is a summary of another and with customers using information on all jurisdictional capacity on pipeline systems in new INGAA’s suggestion of 75 days in lieu services. Statement G must be filed with and innovative ways under the auspices of 45 days will not be adopted. The the rate case. More specific information, of Order No. 636; and, non-pipeline Commission staff works expeditiously in Schedules G–1 through 6, must be entities use capacity release and the to complete the review of a pipeline’s filed 15 days later. ‘‘gray’’ market to compete with rate filing and prepare the preliminary i. Delayed filing of schedules. APGA pipelines. PEC Pipeline Group states staff position, testimony and exhibits. states that, now that the Commission that the customers have a stake in Companies have access to the data for under Order No. 636 has relieved avoiding public disclosure of the updates within 10 to 15 days of closing pipelines of mandatory triennial rate information because competitors of a and thus could file within the 45 day filings, the pipeline is generally in customer will know what the pipeline period seemingly without undue complete control of the date on which expects to charge that customer over a hardship. Thus, adding 30 additional it makes a rate filing, and there is no future period of time, not just days to the process would merely delay reason to conclude that it is burdensome historically. PEC Pipeline Group the case without a corresponding to file the information required in requests clarification that coding and benefit. Schedule G–1 through G–6 at the same the projection of commodity billing time as the rate filing. APGA states that determinants by rate schedule are We agree with INGAA’s reasoning on most of the information required to be appropriate to use in preparing the suspension of updates. The filed in those schedules should be easily Statement G and the related schedules. Secretary has the authority to grant accessible by the pipeline directly from Alternatively, the PEC Pipeline Group extensions of time. The regulations will its computer database, with little or no requests clarification that the be revised to recognize the Secretary’s analysis required. Commission recognizes the potential authority to extend the time for the APGA states that by permitting harmful effects on competition that updates. certain information to be filed after the public disclosure of test period The Rule states that among the filing date, the Commission is taking information has and will thus entertain statements and schedules to be updated away with one hand what it has given are H–1(3)(a) through H–1(3)(1). customers with the other in requiring 39 Specifically, the Agreement recommends that that a pipeline’s Statement P testimony the Commission allow pipelines to serve Schedules Williston Basin seeks clarification that G(1) and G(2) to requesting parties under a the reference is to H–1(2)(a) through H– be filed concurrently with the rate case. protective agreement document reached through 1(2)(k). Williston Basin is correct. The In light of the Commission’s negotiation between the pipeline and intervenors in the rate case. In the event that parties could not reference is being changed to H–1(2)(a) requirement that this customer-specific information need only be served upon agree to such a document prior to filing, the through H–1(2)(k). pipeline would use the protective agreement affected customers and those customers employed for similar purposes in the pipeline’s requesting service, APGA argues that most recent rate case. Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9623 with favor, taking into account potential 3. Schedule G–2 5. Schedule H–1(1) anticompetitive effects, requests for Schedule G–2 shows revenue and Schedule H–1 requires identification confidential treatment on a broad basis. billing determinants by month, by and explanation of all accrual or other These requests are denied for the customer name, by rate schedule, by normalizing accounting entries reflected reasons discussed, at length, in the receipt and delivery zone, if applicable, in the applicant’s base period expenses. Rule.40 The type of information for by major rate component and totals for In response to a comment, the which PEC Pipeline seeks confidential the adjustment period. Great Lakes Commission revised proposed Schedule treatment is the type of information that agrees that this requirement may be H–1(1) to require the disclosure and section 4(c) of the NGA requires appropriate to the extent that a explanation of all accruals, not just pipelines to make publicly available.41 If customer’s adjusted throughput varies special accruals reflected in the monthly confidentiality is sought as to test by month/season. However, Great Lakes per book expenses in order to allow period information, § 388.112 sets out states, in the absence of such a customers to test whether a pipeline is the procedure to be followed. variation, the monthly breakdown of inflating its expenses in order to 42 iii. Capacity Release. Statement G adjustment period throughput does not increase its rates. i. Explanation of all accruals. A. requires that the pipeline provide: (1) serve any useful purpose and creates Requests for rehearing. Great Lakes Total revenues by rate schedule and by unnecessary paperwork. Great Lakes argues that this section should not receipt and delivery rate zones, if requests clarification that no monthly require the explanation of all accruals. applicable; and (2) billing determinants breakdown is required if the pipeline Great Lakes argues that numerous (demand and commodity) by rate provides a written statement that its accruals are necessarily recorded for schedule and by receipt and delivery projected annual throughput is evenly items such as payroll, insurance, taxes, rate zones, if applicable. Schedule G–3 distributed over each month of the adjustment period. etc. Great Lakes states that separately also requires that the pipeline specify, The request for rehearing is denied. identifying and explaining all base quantify and justify each proposed There is no need to make a generic period accruals would be very time adjustment including capacity release. change in the Rule. However, a pipeline consuming and burdensome; and that, ANR and CIG seek clarification that demonstrating that its projected annual disclosure of meaningful data can be the requirements of Statement G, throughput is evenly distributed by accomplished much more efficiently by relative to capacity release, requires months, may ask for a waiver of the adhering to the requirements set forth in only summary level total revenue and monthly filing requirements. both the Commission’s previous billing determinants by receipt and regulations and the NOPR. Great Lakes delivery rate zones, if applicable, and 4. Schedules G–5 and I–4 states that adherence to this does not require such information for Revenues from the release by the requirement, in addition to the each capacity release transaction. In the pipeline of transportation and Commission staff’s audit and data alternative, ANR and CIG seek rehearing compression capacity it holds on other request procedure, is more than if Statement G would require data for pipelines (Account 858 capacity) must sufficient to meet the commenter’s each capacity release transaction. ANR be reflected as a credit to Account 858 concerns without requiring the and CIG state that, since most capacity in Schedule I–4 and also as revenue in burdensome production of data, the release transactions are for a term of a Schedule G–5 (Other Revenues). usefulness of which is questionable at month or less, requiring detail for each INGAA seeks clarification that best. PEC argues that there is no capacity release transaction would be revenues from capacity release are not evidence that routine true-ups cause unduly burdensome, for example: based double counted. INGAA states that, special ratemaking concerns and the upon current experience, ANR would while inclusion of such revenues as a original language should be reinstated. have about 1000 capacity release credit against Account 858 costs is ANR and CIG also seek rehearing on contracts for the base period; CIG would appropriate, Schedule I–4 in Section these grounds and add that a rate case have approximately 400 capacity release 154.312(o)(4)(v) requires that revenues filing is not the proper forum for the contracts for the base period. ANR and from released capacity be reflected, disclosure and explanation of all CIG state that if revenue and billing separately, in Schedule G–5. INGAA accruals because such evaluation is determinants of releasing shippers are states that under this methodology, currently performed by the not reduced for capacity release, then revenues from released capacity would Commission’s Office of Chief capacity release data is needed only for count twice against cost of service; once Accountant (OCA) Staff and a the design of usage rates. In such as a credit towards Account 858 costs company’s external accounting firm. instances, ANR and CIG state capacity and second as other revenue. INGAA ANR and CIG also seek clarification or release data need only be provided by requests that the requirement to include rehearing concerning whether the new receipt and delivery rate zone, if these amounts in Statement G–5 be rule requires a pipeline to explain the applicable. removed. accruals appearing in every month in ANR and CIG are correct. The The Commission agrees that these the base period. Since most of the Commission clarifies that Statement G, revenues should not be double counted. individual monthly accruals will have relative to capacity release, requires However, the revenues must be shown been paid during the base or test period, only summary level total revenue and in both Schedules I–4 and G–5. If the and therefore there should be no billing determinants by receipt and revenues are credited to the cost of question regarding inflation of such delivery rate zones by releasing shipper. service in Schedule G–5, then these expenses, the only explanation of It does not require such information for revenues shown in Account 858 may be accruals that would be of value to any each capacity release transaction. removed from the total costs claimed on extent would be those that are recorded Schedule I–4. However, if they are not at the end of the test period. Thus, ANG reflected as a credit to the cost of service and CIG state, to the extent that the rule 40 III FERC Stats. & Regs. ¶ 31,025 at 31,412–3. 41 For a full discussion on this issue, see ANR through Schedule G–5, then they must requires an explanation of accruals, the Pipeline Company, 65 FERC ¶ 61,280 at 62,304–7 be counted as a credit in Schedule I–4 (1993). and Account 858. 42 III FERC Stats. & Regs. ¶ 31,025 at 31,417. 9624 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations explanation should only be with respect development costs, as the Commission to be tailored better to the needs of to accruals remaining on the books at indicated in the preamble, and that intervenors and the nature of the the end of the test period. these regulations should apply only to pipeline. Williston Basin seeks rehearing of the accruals remaining on the books at the Rehearing is granted. The requirement that certain expenses be end of the base period. This clarification Commission agrees with INGAA that stated on a cash basis. Schedule H–1(1) is granted and Schedule H–1(1) is providing this type of information with requires that pipelines reconcile their amended accordingly. the initial filing is not generally base period expenses to actual case necessary. Schedule H–1(2)(j)(iv) will be 6. Schedule H–1(1)(c) expenditures. Williston Basin states that amended by removing the requirement this imposes an enormous burden on Schedule H–1(1)(c) requires a to provide documentation of the pipelines as it conflicts with the method pipeline to show expenses and derivation of allocation bases. by which pipelines maintain their associated quantities applicable to 8. Schedule I–1, Functionalization of accounts under the Uniform System of Accounts 810, 811 and 812. Williston Cost-of-Service Accounts.43 Williston Basin states that Basin seeks rehearing of this recording these types of items on a cash requirement. Williston Basin states that Schedule I–1 replaces current basis would violate the Uniform System the cost portion of this schedule should Statement I (Allocation of overall cost- of Accounts and require companies to be eliminated because fuel costs are of-service). The information on maintain two sets of accounting records: recovered by a separate mechanism jurisdictional and nonjurisdictional one which complies with the Uniform under Williston Basin’s existing tariff sales allocation is eliminated as no System of Accounts and one from which and such costs should, therefore, not be longer needed. the H Schedules can be prepared. subject to review here. Alternatively, Schedule I–1 (c) requires a pipeline Williston Basin states that instead of Williston Basin states that if a pipeline’s that maintains its records by zones and adopting Schedule H–1(1) as written in fuel reimbursement tracker does not proposes a zone rate methodology to Order No. 582, the Commission should require a redetermination of the base provide functionalized costs for each adopt Schedule H–1(1) as written in the level of gas in a rate proceeding, the zone. NGSA suggests that Schedule I–1 NOPR, whereby only ‘‘special accruals’’ Commission should not require that the (c) should only be required for pipelines would be reconciled rather than ‘‘all pipeline provide this information. which separate their cost-of-service by accruals.’’ Williston Basin’s request for rehearing zones. This is already the case. Section B. Commission response. These is denied. As noted in the Rule, the 154.310 requires a cost-of-service by requests for rehearing are granted. Commission must review all fuel costs, zone only if a pipeline maintains Under accrual accounting, many whether recovered in a separate records of costs by zones and proposes 44 expenses are accrued one month and mechanism or not. Fuel usage is an a zone rate methodology based on these paid the next. With thousands of important element of a pipeline’s costs costs. (See the discussion of § 154.310.) and though these costs may be tracked, accrued entries on the books of most 9. Schedule I–1 (d) pipelines, the additional disclosure a pipeline’s tracker may require a requirements included in Schedule H– redetermination of the base level in a NGSA states that on Schedule I–1 (d), 1(1) regulations would be extremely rate proceeding. Since both volumes pipelines should be required to show lengthy, burdensome and, except for and costs are recorded in the fuel the basis for allocating all costs (A&G, project development expenses, accounts the data are readily available. working capital) among functions. unnecessary. In addition, many of the NGSA states that the experience of its 7. Schedules H–1(2)(j)(iv) member companies is that the ‘‘common accruals would have been paid during Schedule H–1(2)(j)(iv) requires that a the base period, and thus present no and joint costs’’ required by Schedule I pipeline document the derivation of the often do not include A&G. Thus, the danger of expense inflation. The only allocations used to appropriate costs explanation of accruals that might be of method used by the company to allocate among affiliated companies. The A&G must be ascertained by means of value would be that of expenses pipeline must also identify by account recorded at the end of the base period. the discovery process. NGSA submits number all costs paid to or received that to explicitly include A&G in these Accordingly, Schedule H–1(1) will be from affiliated companies which are modified such that only ‘‘special regulations would clarify the included in a pipeline’s cost of service requirement, and reduce discovery accruals’’ are reconciled. for both the base and test periods. ii. Project development costs. INGAA burden and delay in the rate case INGAA requests that Schedule H–1 be proceeding, and provide parties with seeks clarification that Schedule H–1(1) amended such that documentation regulations apply only to project important information with respect to demonstrating the derivation of an increasingly important category of allocation bases with underlying 43 According to the Uniform System of Accounts: costs. ‘‘The utility is required to keep its accounts on the calculations are to be provided, as they The Commission agrees with NGSA accrual basis. This requires the inclusion in its are today, during discovery. INGAA that Schedule I often does not include accounts of all known transactions of appreciable states that requiring all pipelines to the allocation of A&G and this amount which affect the accounts.’’ 18 CFR Part provide this information with the allocation should be included. 201, General Instruction No. 11. Under accrual accounting, assets and liabilities are recognized as original rate case filing is unduly Accordingly, Schedule I–1(d) will be they occur—not when they are paid. For example, burdensome because there are revised to include the allocation of the expense and liability for payroll taxes are numerous types of costs allocated A&G. recorded at the time the associated payroll is between divisions or companies, each recorded, not when the taxes are paid. Similarly, 10. Statement O the expense and liability for receipt of purchased with its own ‘‘allocation basis and materials is recorded when the materials are underlying calculations.’’ INGAA states NGSA requests that the rate history received. It is at the time of that the obligation to that in addition to reducing the burden filing requirement be retained but the vendor is established. Other examples of where on pipelines, providing the information modified to require the company to the liability accrued precedes the actual cash payment include interest expense, income taxes, during discovery would allow the data show its rate history only since its last prepaid insurance, pension costs, post retirement major rate filing in Statement O. NGSA benefit costs, and use taxes. 44 III FERC Stats. & Regs. ¶ 31,025 at 31,417. submits that retention of this limited Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9625 form of the rate history requirement needed to make merits determinations d. Citations to data sources and does not represent a burden on the (Statement P) to the Commission and approval order for data used which is pipeline, and provides parties with other parties sooner than under the derived elsewhere; and important summary information, current regulations. e. Requirement that costs, volumes, difficult to obtain by other means, allocation and rate design be shown by q. 154.314 Other Support for a Filing regarding the levels and effective zone of receipt/zone of delivery or other periods for rates which have been in The Rule does not require pipelines to category used to charge rates, where effect since the company’s last filing. file monthly financial reports prepared appropriate. NGSA’s request is denied. One for management purposes and copies of NGSA is concerned that where purpose of the rule was to eliminate any accounting analyses of balance sheet information is not required, it is not unnecessary burdens of production to accounts. 47 likely to be supplied. For example, the pipeline company. This involves APGA requests that the Commission NGSA states that the regulations do not avoiding the duplication of information grant rehearing and require pipelines to require companies to include actual fuel that can be gathered from another file financial reports as an integral part used and fuel retained from shippers source. The history provided by of a Section 4 rate filing. APGA submits under the existing fuel rates when filing Statement O is not relied on in the that a pipeline’s financial statements are for new fuel retention rates. Thus, Commission analysis of a rate essential to an understanding of a NGSA states, parties do not know if the proceeding and is available through the pipeline’s rate of return presentation pipeline’s existing fuel rates have Commission Issuance Posting System and should be available up front to the overrecovered or underrecovered actual (CIPS). parties to a rate proceeding. APGA fuel costs, and may have no actual basis 11. Statement P states that if information contained in on which to evaluate the proposed rates. such reports is deemed commercially NGSA states that, pursuant to In the past, pipelines filed their sensitive by the pipeline, it may file § 154.403(d)(3)), actual data are not Statement P testimony 15 days after such information under seal subject to required by the regulations where the filing the rate proposal. The Rule a protective agreement. proposed rates are based on estimates. requires Statement P to be filed APGA’s request is denied. This data is Consequently, NGSA states, for filing concurrently with the rate case so as to not generally necessary in the early part under this subpart where discovery is make a more complete explanation of of the process. Such information may be not available to interested parties, there the rate proposal available at the outset. obtained through discovery after a rate may be no way of obtaining the needed Williston Basin seeks rehearing of this case has been set for hearing. information. NGSA states that this requirement. Williston Basin states that circumstance would occur, for example, the removal of this 15-day period r. Section 154.403 Periodic Rate where the filing has not been set for unnecessarily shortens the period in Adjustments hearing or where the parties had not which a pipeline must prepare and file New § 154.403 governs the previously agreed to a submission of the a rate case. Williston Basin states that data. the Commission should grant rehearing passthrough, on a periodic basis, of a so as not to place additional burdens on single cost item or revenue item not 2. Commission Response otherwise covered by subpart E, such as companies in preparing the voluminous Section 154.403 is intended to cover remaining purchased gas adjustment statements and schedules that must a disparate array of potential cost mechanisms, fuel loss and unaccounted- accompany rate case filings. recovery or revenue credit surcharges, for gas, and transition cost filings. This request is denied for the reasons in addition to fuel reimbursement discussed in the Rule. 45 The 1. Requests for Rehearing mechanisms. The regulations adopted Commission’s experience is that are intended to ensure the widest NGSA requests that the Commission Statement P provides the most possible applicability. reconsider NGSA’s suggestions for comprehensive description of the The Rule states that the information periodic rate filing requirements, proposed rate change. To achieve its NGSA seeks will be available in the summarized in the Rule. Specifically, intended purpose of expediting the filings under this subpart. 48 NGSA NGSA suggested the following items be hearing, Statement P must serve as the requests that the regulations be revised required with filings made under this applicant’s complete case-in-chief, not a to require reconciliation information for 46 section: mere description of proposed rates. the past period which compares the It is the pipelines’ statutory burden to a. Reconciliation information for the volumes and revenues actually demonstrate that proposed rates are just past period which compares the recovered to the volumes and costs use and reasonable. When the rates cannot volumes and revenues actually to design the rates previously in effect. be determined to be just and reasonable recovered to the volumes and costs used Section 154.403(c)(6) already requires by the filed material alone, a hearing to design the rates previously in effect, that where costs or revenue credits are must be established. This Rule with discounted transactions separately accumulated over a past period for represents a concerted effort to avoid identified, and showing any past period periodic recovery or return, the tariff lengthy hearings. One way to expedite underrecovery to be included in the must include provisions to define the the process is to get the information new rate; past period, to detail the mechanism for b. Actual data on costs incurred since recovering the cost or revenue, to 45 III FERC Stats. & Regs. ¶ 31,025 at 31,382 and the last filing, compared to the costs on describe the mechanism for calculating 31,424. which the previous rates were based; 46 Statement P requires the pipeline to: the entries to the deferral account and Provide copies of prepared testimony indicating c. Derivation of any discounting for passing through the account balance. the line of proof which the company would offer adjustment included in the proposed Where necessary, the information NGSA for its case-in-chief in the event that the rates are rates, citing the authority under which seeks would be covered in the tariff suspended and the matter set for hearing. Name the such adjustment is being made; provision required by § 154.403(c)(6). sponsoring witness of all text and testimony. Statement P must be filed concurrently with the other schedules. 47 III FERC Stats. & Regs. ¶ 31,025 at 31,425. 48 III FERC Stats. & Regs. ¶ 31,025 at 31,427. 9626 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations

Similarly, while the derivation of requiring or approving the refund, or if t. Section 501(d) discounting adjustments is not no date is specified, within 60 days of 1. Higher Interest Rate specifically listed under the filing the order.’’ requirements in § 154.403(d), AGD proposes procedures to reduce 1. Refund Upon Final Order § 154.403(c)(8) requires the tariff to the level and duration of excessive provide, on a step-by-step basis, how Williston Basin states that refunds pipeline rate increases including an the pipeline’s methodology for should be required only upon the amendment to § 154.501(d). AGD calculating its surcharge will be affected issuance of the final Commission order proposes that the Commission exercise by rate discounts. The pipeline must in the proceeding. Williston Basin states its discretion to prescribe a higher then follow this methodology when it that in an instance where a pipeline interest rate to apply to refunds of files to change its rates. When the requests rehearing or appellate review of pipeline’s excessive charges. The pipeline files to establish its a Commission order imposing refund proposed percentage AGD recommends methodology in the tariff, sufficient liability, the refund should be deferred is one that would be high enough to detail must be incorporated in the tariff until after final ruling to avoid the deter the pipeline from seeking to establish the step-by-step calculation necessity for further refunds or for the excessive rate increases so that such methodology. It is in fashioning the required rebilling of prematurely increases are limited to those which can tariff provision that detailed information refunded amounts. Williston Basin be fully justified. AGD states that such requirements will be established such as states that it has become increasingly an interest rate would be equal to the those NGSA would include in the difficult, if not impossible, to collect rate of return on equity sought by the regulations. It is not, therefore, prematurely refunded amounts from pipeline in its rate filing. AGD states necessary for the regulations to transient shippers. that this interest rate would be a explicitly require discounted Williston Basin states that shippers significant deterrent to a pipeline’s transactions to be separately identified. are well protected from any delay they unsubstantiated rate increase proposal Nor is it necessary to modify the might experience in receiving their and provide the pipeline with a regulations to include the requirement refunds since they receive interest on necessary incentive to cooperate with its that the derivation of any discounting the amount which the pipeline must customers in the early disposition of its adjustment be included in the proposed refund; thus, they are made whole for rate increase proposal, an incentive that rates. any overpayment amounts which the no longer exists under the SFV rate Some of the data NGSA wishes the pipeline held. Williston Basin states design standard. regulations to require are already that if pipelines are forced prematurely explicitly required by the new to make refunds before a final, 2. Commission Response regulations. For example, nonappealable agency order is issued AGD seeks to change the § 154.403(d)(1)(ii) requires pipelines could be left holding an empty Commission’s provision for carrying computations to be shown for each bag as they would have to track down charges under § 154.501(d) from a surcharge or fuel reimbursement shippers that may no longer exist to vehicle to ensure compensation for the percentage to be applied. The recover these premature refunds. time value of money into an incentive computations should be broken down 2. Commission Response mechanism for modest rate increase by service, classification, area, zone, or proposals on the part of the pipelines. other subcategory as appropriate. Section 154.501(a) was patterned in The Commission does not intend to Therefore, NGSA’s request that the part after former § 154.67(c). Former change any substantive ratemaking regulations require costs, volumes, § 154.67(c) noted that the date of any policies through this Rule. Thus, AGD’s allocation, and rate design be shown by refund would be determined in a final request is beyond the scope of the Rule zone of receipt/zone of delivery or other Commission order. Section 154.501(a) and is denied. category used to charge rates would be retained this provision but added that if 3. Surcharges redundant. In addition, §§ 154.403(d)(1) no specific date is set, the refund must (iv) and (v) require the pipeline to cite be made within 60 days of the order. ANR and CIG request clarification the source of the costs, revenues, rates, The regulation did not specify the that the Commission’s intent is to allow quantities, indices, load factors, procedure to follow in an instance pipelines, that are required to pay percentages, or other numbers used in where a pipeline requests rehearing or surcharges to other pipelines as a result the calculations. NGSA’s request that appellate review of a Commission order of a Commission order, to recover such citations to data sources be required is, imposing refund liability. To avoid any surcharges from customers within 30 therefore, already in the regulations. confusion, the regulation will be revised days of the pipeline paying such charges Section 154.403(c)(5) requires a step- to read that in the event no date for the through the mechanism of a limited by-step description of the cost refund is set by the Commission order section 4 filing.50 calculation and flowthrough establishing the refund obligation, the methodology to be included in the tariff. refund must be made within 60 days of shall not, unless specifically ordered by the court, Any comparison between actual costs a final Commission order. For purposes operate as a stay of the Commission’s order. Waiting of this section, final order will mean an to disburse a refund until after appeals court review incurred and the costs underlying the would entail undue delay and would be previous rate may be appropriate for order no longer subject to rehearing. inconsistent with current practice. 15 U.S.C. inclusion in the methodology required Williston Basin’s request that the refund 717r(c). by the referenced section. That disbursement be delayed until after 50 For example, in Docket No. RP91–143–027, 72 determination must be made at the time judicial review is denied as inconsistent FERC ¶ 61,081 (Remand Order), the Commission 49 directed Great Lakes to effectuate refunds and the tariff language setting forth the with the NGA. surcharges to expansion and pre-expansion methodology is accepted. shippers, respectively. Under the clarification 49 Section 19(c) of the NGA provides that: sought by ANR and CIG, pipelines that incur s. Section 154.501(a) The filing of an application for rehearing under surcharges pursuant to the Remand Order could file subsection (a) shall not, unless specifically ordered limited section 4 filings seeking authority to Section 154.501(a) states that ‘‘[t]he by the Commission, operate as a stay of the increase their rates to pass through to their shippers refund plus interest must be distributed Commission’s order. The commencement of the amount of the Great Lakes surcharge, and such as specified in the Commission order proceedings under subsection (b) of this section authority would be granted. Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9627

If such clarification is denied, ANR Commission order or is made in filed-for cost of service and its and CIG request rehearing stating that conjunction with a cost tracking throughput and/or other issues which the change to § 154.501 improperly provision approved by the Commission. lend themselves to prompt decisions. mandates a one-sided exception to test A cost tracker permits the pipeline to The Commission’s rules would provide period ratemaking. ANR and CIG state recover costs paid subsequent to the end that, in the absence of compelling that requiring a pipeline to pay to of the test period without having to file reasons, all rate case issues concerning customers refunds received after the end a general rate case and submit to a the pipeline’s cost of service and its of the test period underlying the review of all costs and revenues. throughput volume, including rate of pipeline’s rates violates §§ 154.303 and Therefore, to ensure those costs are not return, depreciation rate and other 154.63(e)(2) of the Commission’s over-recovered, refunds of costs similar issues would be addressed by regulations. ANR and CIG state, unless collected from customers by means of a the ALJ and by the Commission within the Commission implements an rate established under a tracking 12 months of the filing date. exception to this regulation in an even mechanism must be flowed through to The second category of issues would handed manner, equity dictates that customers. be those concerning the pipeline’s rate pipelines should not be required to pass design and/or its allocation of costs through a refund from an upstream 6. Minor Refunds among functions and among customers pipeline unless the Commission ANR/CIG request clarification that the according to their rate schedule. This determines that the pipeline is 30-day provision relates to minor latter category of issues may involve overrecovering its costs after reviewing refunds and surcharges. Sections more complex questions and may all of the pipeline’s other costs and 154.501 and 154.502 relate solely to require the use of expert testimony, revenues. refunds, not to surcharges. exhibits and other evidence to frame the In any event, ANR and CIG request The Commission adopted a single issues for Commission decision. that the 30-day provision be clarified generic standard of 30 days to pass The Commission recognizes that the with respect to minor refunds and through refunds. The difficulty with proposed procedure might have the surcharges. Specifically, they request making an exception for minor refunds effect of expediting pipeline rate case that minor refunds be treated as billing is defining what constitutes a minor decisions. However, before adjustments which will be reflected in refunds. A minor amount on one implementation, the Commission would the next billing 30 days subsequent to pipeline may represent a significant require more study as to the potential receipt, and surcharges be reflected in amount on another pipeline. It is effects of such a procedure on the rate the next billing 30 days subsequent to preferable to have a single generic case as well as what further changes billing. standard. The Commission will review would have to be made to the filing 4. Commission Response requests for exceptions for disbursing requirements. The suggested change is minor refunds through billing simply beyond the scope of the In response to ANR/CIG’s comments adjustments on a case-by-case basis, purposes of this Rule and will not be to the NOPR, the Commission stated in thereby allowing such a provision to be adopted. the Rule that cost increases must be tailored to the specific circumstances of filed for by the pipeline. Pipelines each pipeline. w. Electronic Pleading would not receive automatic NGC states that the Commission on u. Topsheets passthrough authority within 30 days of rehearing should add to its list of goals the pipeline paying such charges. A APGA requests rehearing of the the electronic service of pleadings. NGC pipeline paying increased charges to an Commission’s determination that it states that, with the internet and world- upstream pipeline must file to recover should not establish a time frame for the wide web gaining such increased these costs through a section 4 filing. submission of Staff topsheets. prominence in recent months, it is time The Commission will not prejudge the This matter has been fully considered the Commission implemented electronic proper approach for passing through and discussed in the Rule. APGA’s service through the CIPS system. costs paid to one pipeline by another. arguments do not warrant further Expanding electronic filing Regulations governing such cost consideration or a different conclusion. requirements to pleadings is outside the passthrough are contained elsewhere in This request is denied for the reasons scope of this rulemaking. Part 154. ANR/CIG’s request for discussed in the Rule.51 clarification is denied. x. Suspension of Electronic Filing v. Bifurcation The Commission is suspending the 5. One-Way Tracker AGD suggests, as a strategy to requirement to submit filings under ANR/CIG reiterates, on rehearing, its expedite pipeline rate case decisions, an subpart D electronically until the new comment to the NOPR that the language early bifurcation of a given proceeding electronic filing requirements are fully proposed in the NOPR mandated the into two separate categories for developed.52 institution of a one-way tracker. In decisionmaking. The Commission’s INGAA seeks clarification that after response to that comment, the suspension order in a pipeline rate case electronic filing requirements have been Commission clarified the language of would divide the issues to be addressed finalized, there would be a period of six § 154.501(a)(2) to ensure that the refund by the ALJ and the parties in two months for pipelines to develop internal either is a product of a prior categories, one of which would be software and procedures that match Commission order or occurs in subject to a final Commission decision their data to the newly developed conjunction with a tracker filing deadline of 12 months from the filing electronic filing requirements. During instituted under § 154.403. The date, while the other category could this period, pipelines would continue to provision is not a universal requirement have a different Commission decision file rate cases on paper. for flow through of upstream pipeline deadline. In the first, 12 months-to- In accordance with the Rule, staff refunds as ANR/CIG implies and does decision category, the issues would convened an informal conference on not violate the test period concept. This include those concerning the pipeline’s December 1, 1995, to discuss issues is so because the refund passthrough either is required by a specific 51 III FERC Stats. & Regs. ¶ 31,025 at 31,431. 52 III FERC Stats. & Regs. ¶ 31.025 at 31,433. 9628 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations relating to electronic filing which had INGAA seeks clarification that the the changes or additions made to the not been resolved. Issues relating to the effective date will be 90 days after tariff or executed service agreement, as Index of Customers and discount rate publication in the Federal Register. The appropriate. The statement must filings have been resolved. The final Rule already is in effect. Thus, this include a quantified summary specifications will be issued shortly. request is denied as the issue is moot. comparing the cost of service, rate base Two working groups were established— INGAA also seeks clarification that and throughput underlying each change one to complete work on Form Nos. 2, the order does not apply to pending rate in rate made to the tariff or executed 2A and 11 and one to complete work on cases. This request is granted. service agreement compared to the same rate case filings. The working groups ANR and CIG request clarification of information underlying the last rate met on December 12, 1995, February 7, when pipelines are required to make found by the Commission to be just and 1996 and February 8, 1996. changes to their tariff to bring the tariff reasonable. A detailed explanation of The Commission expects to have into compliance with the new Rule. In the need for each change or addition to work completed on Form No. 11 in time some instances, such as a filing for a the tariff or executed service agreement for the first filings due on May 15, 1996. rate change, it is clear that the next must be included. The natural gas Given the relative simplicity of the filing would trigger the Rule’s company also must note all relevant Form No. 11, there should be no requirements. However, it is not clear precedents relied upon to prepare its difficulty meeting this timetable. A when pipelines will have to make other filing. delay of six months is excessive for this revisions to their present tariffs, such as * * * * * filing. conforming the title page of their tariff The Form Nos. 2, and 2A, and rate to the new Rule’s requirements or § 154.101 [Amended] case filings, however, are far more providing explanations of policies on 3. In § 154.101, the words ‘‘1⁄4 inches’’ complex. Form Nos. 2 and 2A must be such issues as discounts. are removed and the words ‘‘11⁄4 filed electronically on April 30, 1997. The Commission clarifies that all inches’’ are added in their place. However, staff and the Working filings and tariffs on file must be in 4. Section 154.208 is amended by Group—Forms are urged to use due compliance with the revised regulations revising paragraph (c) and adding diligence to complete the filing no later than December 31, 1996. paragraph (d) as follows: specifications by October 31, 1996, in List of Subjects in 18 CFR Part 154 order to provide the six month § 154.208 Service on customers and other preparation time INGAA seeks. Alaska, Natural Gas, Pipelines, parties. As regards electronic filing for rate Reporting and recordkeeping * * * * * cases, the Commission will not adopt requirements. (c) Within two business days of INGAA’s proposal that its The Commission Orders receiving a request for a complete copy implementation be delayed until six (A) The requests for rehearing and from any customer or state commission months after the Commission issues the that has not made a standing request, electronic filing specifications. Several clarification of Order No. 582, the final rule issued in this docket on September the company must serve a full copy of pipelines in the working group are any filing. providing test files of rate case data in 28, 1995, are granted and denied as (d) A customer or other party may the new file format. It is preferable to discussed in the text of this order. designate a recipient of service. The wait until the working group process is (B) All filings and tariffs on file must filing company must serve the complete and staff has better be in compliance with the revised designated recipient, in accordance with information about the amount of time regulations promulgated by Orders No. paragraphs (a), (b) and (c) of this the test pipelines required to create files 582 and 582–A, no later than December section, instead of the customer or other in the new file format before making a 31, 1996. By the Commission. party. For the purposes of this section, decision on the appropriate amount of Lois D. Cashell, service upon such designated recipient delay between the issuance of file Secretary. will be deemed service upon the specifications and implementation of In consideration of the foregoing, the customer or other party. the electronic filing requirements for Commission is amending part 154, rate cases. Therefore, the Commission 5. Section 154.301 is amended by Chapter I, Title 18, Code of Federal revising paragraph (c) as follows: will defer making a ruling on this issue Regulations, as set forth below. until staff issues the file specifications § 154.301 Changes in rates. PART 154ÐRATE SCHEDULES AND for the rate case. * * * * * TARIFFS y. Effective Date (c) A natural gas company filing for a The final rule became effective on 1. The authority citation for part 154 change in rates or charges must be November 13, 1995, 30 days after continues to read as follows: prepared to go forward at a hearing and publication in the Federal Register. Authority: 15 U.S.C. 717–717w; 31 U.S.C. sustain, solely on the material submitted The NOPR proposed that the revised 9701; 42 U.S.C. 7102–7352. with its filing, the burden of proving that the proposed changes are just and regulations would be effective 90 days 2. Section 154.7 is amended by reasonable. The filing and supporting after publication in the Federal revising paragraph (a)(6) to read as 53 workpapers must be of such Register. However, the Rule made the follows: revisions effective 30 days after composition, scope, and format as to publication in the Federal Register.54 § 154.7 General requirements for the comprise the company’s complete case- INGAA states that it would be submission of a tariff filing or executed in-chief in the event that the change is impossible for pipelines who might be service agreement. suspended and the matter is set for in the process of preparing a rate case * * * * * hearing. If the change in rates or charges to implement the Rule within 30 days. (a) * * * presented are not in full accord with (6) A statement of the nature, the any prior Commission decision directly 53 IV FERC Stats. & Regs. ¶ 32,511 at 32,944. reasons, and the basis for the filing. The involving the filing company, the 54 III FERC Stats. & Regs. ¶ 31,025 at 31,375. statement must include a summary of company must include in its working Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9629 papers alternate material reflecting the updates encompassing a 12-month books at the end of the base period or effect of such prior decision. period. The updated statements or other normalizing accounting entries for 6. Section 154.303 is amended by schedules must be filed 45 days after the internal purposes reflected in the revising paragraph (c)(2) to read as end of the test period. The updated monthly expenses presented per book. follows: filing must be provided to parties Explain any amounts not currently specifically requesting them. The payable, except depreciation charged § 154.303 Test periods. updated filing must reference the through clearing accounts, included in * * * * * associated docket number and must be operation and maintenance expenses. (c) * * * filed in the same format, form, and * * * * * (2) When a pipeline files a motion to number as the original filing. (15) * * * place the rates into effect, the filing (b) The statements and schedules in (iv) The bases used in determining the must be revised to exclude the costs § 154.312 to be updated are: Statements amounts of the charges (credits). associated with any facilities that will C, D and H–4; Schedules B–1, B–2, C– Explain and demonstrate the derivation not be in service as of the end of the test 3, D–2, E–2, E–4, G–1, G–4, G–5, G–6, of the allocation bases with underlying period, or for which certificate H–1 (1)(a), H–1 (1)(b), H–1 (1)(c), H–1 calculations used to allocate costs authorization is required but will not be (2)(a) through H–1 (2)(k), H–2 (1), H–3 among affiliated companies, and granted as of the end of the test period. (3), I–4, and I–6. identify (by account number) all costs At the end of the test period, the (c) This requirement to file updates paid to, or received from affiliated pipeline must remove from its rates may be extended by the Secretary companies which are included in a costs associated with any facility that is pursuant to § 375.302 of this chapter. pipeline’s cost-of-service for both the not in service or for which certificate 9. Section 154.312 is amended by base and test periods. authority is required but has not been revising paragraphs (d)(1), (k)(1), granted. (k)(15)(iv) and (o)(1)(iv) as follows: * * * * * (o) * * * * * * * * § 154.312 Composition of Statements. 7. Section 154.304 is amended by (1) * * * * * * * * revising paragraphs (b) and (c) to read (iv) Schedule I–1(d). Show the (d) * * * as follows: method used to allocate common and (1) Schedule D–1. This schedule is joint costs to various functions § 154.304 Format of statements, part of the workpapers. Show the including the allocation of A&G. schedules, workpapers and supporting depreciation reserve book balance Provide the factors underlying the data. applicable to that portion of the allocation of general costs (e.g., miles of * * * * * depreciation rate not yet approved by pipe, cost of plant, labor). Show the (b) The data in support of the the Commission, the depreciation rates, formulae used and explain the bases for proposed rate change must include the the docket number of the order the allocation of common and joint required particulars of book data, approving such rate, and an explanation costs. adjustments, and other computations of any difference. Reflect actual end of * * * * * and information on which the company base period depreciation reserve 10. Section 154.501 is amended by relies, including a detailed narrative functionalized and test period revising paragraph (a)(1) to read as explanation placed at the beginning of depreciation reserve functionalized. follows: the specific statement or schedule to Show accumulated depreciation and which they apply, explaining each amortization, in columnar form, for the § 154.501 Refunds. proposed adjustment to base period ending base and test period balances by (a) Refund Obligation. (1) Any natural actual volumes and costs. functional classifications of gas company that collects rates or (c) Book data included in statements Accumulated Depreciation reserve. charges pursuant to this chapter must and schedules required to be prepared (Examples are provided in Schedule C– refund that portion of any increased or submitted as part of the filing must 1). For each functional plant rates or charges either found by the be reported in a separate column or classification, show depreciation reserve Commission not to be justified, or columns. All adjustments to book data associated with offshore and onshore approved for refund by the Commission must also be reported in a separate plant separately. as part of a settlement, together with column or columns so that book * * * * * interest as required in paragraph (d) of amounts, adjustments thereto, and (k) * * * this section. The refund plus interest adjusted amounts will be clearly (1) Schedule H–1 (1). This schedule is must be distributed as specified in the disclosed. All adjustments must be part of the workpapers. Show the labor Commission order requiring or supported by a narrative explanation costs, materials and other charges approving the refund, or if no date is placed at the beginning of the specific (excluding purchased gas costs) and specified, within 60 days of a final statement or schedule to which they expenses associated with Accounts 810, order. For purposes of this paragraph, a apply. 811, and 812 recorded in each gas final order is an order no longer subject * * * * * operation and maintenance expense to rehearing. The pipeline is not 8. Section 154.311 is revised to read account of the Uniform System of required to make any refund until it has as follows: Accounts. Show these expenses, under collected the refundable money through the columnar headings, with subtotals its rates. § 154.311 Updating of statements. for each functional classification, as * * * * * (a) Certain statements and schedules follows: operation and maintenance in § 154.312, that include test period expenses by months, as booked, for the Note: This Appendix will not appear in the data, must be updated with actual data 12 months of actual experience, and the Code of Federal Regulations. by month and must be resubmitted in 12-month total; adjustments, if any, to Appendix the same format and with consecutive expenses as booked; and total adjusted Minor modifications are made to the monthly totals for each month of the operation and maintenance expenses. electronic filing instructions for tariff sheets. adjustment period with a single set of Disclose and explain all accrual on the The instructions for completing the ‘‘TF07’’ 9630 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations record have been corrected. In the previous III. What To Submit (2) Hand deliveries may be made to the version of these instructions, the position for All proposed revisions to the FERC Gas same address. the FERC Cite was erroneously given as Tariff will be submitted in conformance with You shall not be penalized for failure to character position 43–49. The correct this form. Such proposed revisions include, respond to this collection of information character position is 5–11. The Commission’s but are not limited to, rate changes pursuant unless the collection of information displays software, the FERC Automated System for to a Section 4 filing or changes in service a valid OMB control number. Tariff Retrieval, FASTR, will recognize the pursuant to a certificate issued as a result of FERC cite whether entered in positions 43– a section 7 proceeding. Upon request of the General Instructions 49 or 5–11. The Commission is allowing Secretary of the FERC, companies must (1) Schedule TF. Records TF01 through pipelines to file other electronic filings on submit such additional supporting and TF07 and the text line records are intended CD-ROM. The Commission will extend this clarifying data and information as may be to capture all of the tariff elements which the option to electronic tariff filings as well. specified. pipeline has historically filed as part of its All data will be submitted on diskette(s), FERC Gas Tariff. Record TFO1 identifies the Natural Gas Pipeline Company Tariff Filings preferably 3.5′′ High Density diskettes, and company and the filing date. Record TF02 Revised must conform to the specific instructions provided in Exhibit A. Optionally, data may captures information about the tariff volume; Docket No. RM95–3–001 be submitted on CD. Filings in this medium and Records TF03, TF04, TF05, TF06, and must conform to the specifications in Exhibit TF07 contain requisite marginal information for an individual tariff sheet. The actual tariff OMB Nos. Expiration A. The diskette(s) or CD(s) must be date accompanied by paper copies of the sheet text will follow Record TF07. information submitted on the diskette. The Each tariff sheet should be identified by 1902±0066 ...... 5/31/97 paper copies must conform in all respects to the nature of the sheet, and assigned the 1902±0070 ...... 5/31/97 the requirements of sections 154 and 157 and appropriate ‘‘Text ID’’ from among those 1902±0152 ...... 5/31/97 will consist of the required number of copies listed in the layout for Record TF03. For 1902±0153 ...... 5/31/97 of the transmittal letter, the tariff sheets, the example, a tariff sheet which includes the 1902±0154 ...... 6/30/96 certification of service, and a form of notice table of contents must be assigned Text ID = 1902±0155 ...... 5/31/97 suitable for publication in the Federal ‘‘1’’. The text of a tariff sheet should include Register. any footnotes applicable to the individual This document replaces the Tariff Filing The letter of transmittal and the certification of service will be submitted on tariff sheet. When filing the tariff sheet on Record Formats issued August 31, 1989. paper only. The letter of transmittal must paper, footnotes should appear inside the General Information include the subscription provided in section ruled borders required by section 154.101. 385.2005(a). The subscription provided must All of the marginal information required I. Purpose state, in addition to the requirement in under 18 CFR § 154.102(d) is to be included All companies which maintain a gas tariff section 385.2005(a), that the paper copies only in the tariff sheet header records. These with the Federal Energy Regulatory contain the same information as the header records will be utilized to print a hard Commission (FERC) are required to submit, diskette(s) and that the signer has read and copy with the appropriate marginal along with the paper copies, an electronic knows the contents of the paper copies and information. version of all tariff filings pursuant to section that the contents as stated in the paper copies If a tariff sheet is filed to be read vertically are true to the best knowledge and belief of 385.2011 of the Commission’s regulations. in hard copy, this is referred to hereinafter Companies are required to have an electronic the signer. Respondents claiming that information is as ‘‘Portrait’’ orientation. If the sheet will be version of their entire gas tariff (excluding read horizontally, the orientation is referred Volume No. 2 contractual rate schedules) on privileged must file in accordance with section 385.1112; otherwise, all data to as ‘‘Landscape.’’ The requirements of file with FERC on or before January 26, 1996 section 154.101 imply that the length of a This form does not modify the existing tariff submitted will be considered non-privileged and will be made available to the public line of actual text is 6.75 inches in Portrait sheet format required in section 154.102 or upon request. orientation, and 10.0 inches in Landscape. section 385.2003 for tariff sheets filed on The pitch, the number of print characters per paper. Nor does it modify the requirement in IV. When To Submit horizontal inch (cpi); the number of lines per section 154.201(a) to file a marked paper The tariff sheets should be filed with the vertical inch (lpi); and the page orientation version of the pages to be changed by Commission at the time the company showing additions and deletions using for printing the tariff sheet must be given in proposes a change in service or rate. The the first Tariff Sheet Header Record, (Record highlighting, background shading, bold text, notice period should be consistent with the TF03). The number of characters per or underlined text. Commission’s regulations. horizontal inch (cpi) must not exceed 17. The II. Who Must File V. Where To Submit acceptable lines per vertical inch are 6 or 8. All companies who are required to (1) Submit this report to: Office of the The maximum line length and lines per page maintain a FERC Gas Tariff on file with the Secretary, Federal Energy Regulatory for Portrait and Landscape orientation are as FERC. Commission, Washington, DC 20426. follows:

Maximum line length Maximum (characters) lines per Page orientation page 10cpi 12cpi 15cpi 17cpi 6lpi 8lpi

Vertical (portrait) ...... 65 79 98 112 50 70 Horizontal(landscape) ...... 98 118 148 168 31 44

(2) Record Types. Records must be filed in will be grouped together. If more than one accordance with the instructions in Exhibit the following order: dataset is required for the filing of a volume, A. Company Header Record (TF01): One this record must appear in each dataset. Note: Note: The Appropriate Tariff Sheet Header record per dataset. When more than one dataset is needed to Records Must Precede Each Tariff Sheet! Volume Header Record (TF02): One record accommodate a filing, name the datasets in Sheet Header Record (TF03): One record per volume. All pages for the same volume per sheet. Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9631

Superseded Sheet Header Record (TF04): Specific Instructions No. 3 superseding Original Sheet No. 3,’’ This record pertains to the superseded sheet (1) Effective Date. The date, given as report ‘‘Original Sheet No. 3’’ in this field. If information. One record per sheet unless month, day, and year, on which the the Superseded Sheet ID exceeds the allowed there is no superseded sheet (e.g., Original respondent expects the filing to be put into 40 character positions for this item, use the and Substitute Original sheets). In that case, effect subject to the concurrence of the FERC. ‘‘Abbreviation Conventions List’’ at Exhibit this record may be omitted. (2) Tariff Volume Number. The number of C. Issuing Officer Header Record (TF05): One the volume to which the tariff sheets belong. (9) First Superseded Sheet Number. When record per filing, unless the filing contains For example, if the volume is labeled a single sheet supersedes a range of sheets sheets that reference more than one issuing ‘‘Second Revised Volume No. 1,’’ report a (such as canceling a rate schedule or officer or the tariff sheets are submitted in reserving sheets for future use), report the more than one dataset. Optionally, this ‘‘1’’ in this field. record may precede every tariff sheet filed. (3) Tariff Volume Revision Number. Report number of the first sheet in the range. Date and Docket Header Record (TF06): the number of the revision. For example, if Otherwise this field may be left blank. One record per filing, unless the effective the tariff volume is labelled ‘‘Second Revised (10) Last Superseded Sheet Number. When date or other information in this record Volume No. 1,’’ report a ‘‘2’’ in this field. If a single sheet supersedes a range of sheets changes from sheet to sheet or the tariff the tariff volume is an original volume, report (such as canceling a rate schedule or sheets are submitted in more than one a zero in this field. reserving sheets for future use), report the dataset. Optionally, this record may precede (4) Tariff Volume ID. Report the full tariff number of the last sheet in the range. every tariff sheet filed. volume name in this field. For example, if Otherwise this field may be left blank. FERC Cite (TF07): One record per sheet. the volume is labelled ‘‘First Revised Volume (11) Alternate Sheet ID. When filing This header record should only accompany No. 1,’’ report ‘‘First Revised Volume No. 1’’ primary and alternative tariff sheets, the tariff sheets filed in compliance with an in this field. sheets are uniquely identified by reporting order of the Commission. (5) Sheet Number. Report the number of ‘‘00’’ in this field for the primary sheet, ‘‘01’’ Text Line Records: The actual tariff sheet the tariff sheet being filed. For example, if the for the first alternate, ‘‘02’’ for the second text. Note: any special codes placed in the sheet is numbered ‘‘First Revised Sheet No. alternate, and so on. 3 superseding Original Sheet No. 3,’’ report text (such as bold, italic, underline, etc.) are (12) Issuing Officer. Report the name and a ‘‘3’’ in this field. removed when converting to ASCII format. title of the person authorized to issue the (6) Sheet Revision Number. Report the (3) Numeric Fields. All numeric fields in tariff sheet. Records TF01 through TF06 must not be left number of the revision. For example, if the tariff sheet is numbered ‘‘Second Substitute (13) Issue Date. The date given as month, blank, and must be right justified unless day, and year when the tariff sheet is issued. indicated otherwise. The following Third Revised Sheet No. 4 superseding (14) Order Reference. For tariff sheets conventions should be followed in preparing Second Revised Sheet No. 4,’’ report a ‘‘3’’ in which are filed to make rate schedules or each header record in the filing: this field. If this is an original tariff sheet, (A) If a numeric data item is not applicable report a ‘‘0’’ in this field. provisions ordered by the Commission to the respondent, enter the numeric value (7) Sheet ID. Report the full designation for effective, report the Docket Number and the ‘‘0’’ in the field provided for this data item. the tariff sheet being reported. For example, date of such order. (If more than one docket (B) Do not include commas in reporting if the sheet is designated ‘‘First Revised Sheet applies, report the lead docket relating to the any numeric value. No. 3 superseding Original Sheet No. 3,’’ filing company in the proceeding.) (C) Report all dates as six digit numerics report ‘‘First Revised Sheet No. 3’’ in this (15) FERC Cite. In this field, enter the (month, day, year, MMDDYY). field. If the Sheet ID exceeds the allowed 40 numbers of the cite to the FERC Reports for (4) Pipeline Company ID. Use the code for character positions for this item, use the the order listed in ‘‘Order Reference’’ as the pipeline as contained in the Buyer Seller ‘‘Abbreviation Conventions List’’ at Exhibit follows: For a citation which appears as 12 Code List, U.S. Department of Energy’s C. FERC ¶ 34,567, enter all of the numbers but publication DOE/EIA–0176. A code may be (8) Superseded Sheet ID. Report the full none of the letters, symbols, or commas. It obtained by calling EIA at (202) 586–8841. designation for the tariff sheet being will appear as 1234567. If the order has no (5) Record Lengths. Do not pad the end of superseded. For example, if the tariff sheet FERC Reports citation, do not enter a TF07 data records with blanks. being filed is designated ‘‘First Revised Sheet record.

ELECTRONIC TARIFF FILE LAYOUTÐSCHEDULE TF

Character Item position Data type Comments

(1) Company Header Record: Schedule ID ...... 1±2 character ..... sch=TF. Record ID ...... 3±4 numeric ...... code=01. Company ID ...... 5±10 numeric ...... company code from buyer/seller code list, see general instruction 4. Date Submitted ...... 11±16 numeric ...... month, day and year report is filed (mmddyy). Company Name ...... 17±65 character ..... name of filing company. (2) Volume Header Record: Schedule ID ...... 1±2 character ..... sch=TF. Record ID ...... 3±4 numeric ...... code=02. Tariff Volume Number ...... 5±8 character ..... see specific instruction 2. Tariff Volume Revision Number ...... 9±11 numeric ...... see specific instruction 3. Tariff Volume ID ...... 12±51 character ..... see specific instruction 4. (3) Sheet Header Record: Schedule ID ...... 1±2 character ..... sch=TF. Record ID ...... 3±4 numeric ...... code=03. Sheet Number ...... 5±12 character ..... see specific instruction 5. Sheet Revision Number ...... 13±15 numeric ...... see specific instruction 6. Alternate Sheet ID ...... 16±17 numeric ...... see specific instruction 11. Text ID ...... 18±19 numeric ...... 0=Title Page...... 1=Table of Contents. 9632 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations

ELECTRONIC TARIFF FILE LAYOUTÐSCHEDULE TFÐContinued

Character Item position Data type Comments

...... 2=Preliminary Statement...... 3=Rate Sheets...... 4=Rate Schedule Text...... 5=General Terms and Conditions...... 6=Form of Service Agreements...... 7=Index of Customers...... 8=Other Indices...... 9=Other Tariff Sheets...... 10=Sheets Reserved for Future Use. Orientation ...... 20 character ..... P=Portrait...... L=Landscape. Pitch ...... 21±22 numeric ...... Characters per Horizontal Inch=10, 12, 15, or 17. Lines Per Inch ...... 23 numeric ...... Lines per Vertical Inch=6 or 8. Sheet ID ...... 24±63 character ..... see specific instruction 7. (4) Superseded Sheet Header Record: Schedule ID ...... 1±2 character ..... sch=TF. Record ID ...... 3±4 numeric ...... code=04. First Superseded Sheet Number ...... 5±12 character ..... see specific instruction 9. Last Superseded Sheet Number ...... 13±20 character ..... see specific instruction 10. Superseded Sheet ID ...... 21±60 character ..... see specific instruction 8. (5) Issuing Officer Header Record: Schedule ID ...... 1±2 character ..... sch=TF. Record ID ...... 3±4 numeric ...... code=05. Issued By ...... 5±58 character ..... name and title of issuing official; see specific instruction 12. (6) Date and Docket Header Record: Schedule ID ...... 1±2 character ..... sch=TF. Record ID ...... 3±4 numeric ...... code=06. Date Issued ...... 5±10 numeric ...... (mmddyy); see specific instruction 13. Order Date ...... 11±16 numeric ...... (mmddyy); see specific instruction 14. Docket Number ...... 17±36 character ..... see specific instruction 14. Effective Date ...... 37±42 numeric ...... (mmddyy); see specific instruction 1. (7) FERC Cite: Schedule ID ...... 1±2 character ..... sch=TF. Record ID ...... 3±4 numeric ...... code=07. FERC Cite ...... 5±11 numeric ...... see specific instruction 15. (8) Sheet Text Line Records: Each entire record consists of the text of the corresponding line of the tariff sheet, without prefix of any kind. the two-digit month, day, and year the tariff more than one diskette is necessary to Exhibit A—Filing Procedures filing is submitted. If more than one tariff accommodate a filing, the diskettes should be Diskette(s) or CD(s) containing the filing is made on the same day, the numbered 1 of N, 2 of N, etc., where N is the information specified for each record ID of subsequent filings should be given file names total number of diskettes. the tariff filing filed with the FERC must ‘‘TFMMDDYY.BSC’’, ‘‘TFMMDDYY.CSC’’, CD Specifications conform with the following requirements: etc., where ‘‘BSC’’ indicates the second filing Filing on CD is an option for those (1) The character code for representing all of the day, ‘‘CSC’’ the third filing, etc. The respondents who wish to do so. However, all data should be the American National file name for each submission must be data filed on CD must adhere to the following Standard Code for Information Interchange included in the transmittal letter two constraints: (ASCII) as defined in FIPS PUB 1–2. An accompanying the respondent’s filing. 1. All data submitted must be on CD- exception will be made for the cents (¢) (4) Each logical record must be terminated Recordable (CD-R) media or traditional CD- symbol, which should be coded as by a CR (ASCII carriage return-13 decimal, ROM media. hexadecimal 8B, or decimal 155, as defined OD hexadecimal). An ASCII line feed (LF) 2. The file directory structure of the CD in the IBM-US (PC–8) symbol set. Note that following a CR is accepted but not required must adhere to the ISO 9660 Level One there are symbol sets which define it as part of termination. Do Not pad the end standard. differently. of data records with spaces. What is CD-R and how does it differ from (2) The definitions, instructions, and (5) Do not omit any numeric item. Numeric traditional CD-ROM media? schedule ID/record ID data layouts for this items do not require leading zeros unless CD-R is a technology that allows for form specify explicitly the data items to be specifically noted in the description of the creating CD-ROMs on the desktop more reported and the sequence for recording the data item. See the General Instructions of this cheaply than traditional CD-ROM media. information on the diskette(s) or CD(s). The form for detailed instructions for recording Traditional CD-ROMs are made by using a information required for a tariff filing should numeric data on the diskette(s). laser to ‘‘burn’’ pits in a thin metallic layer be recorded on the diskette(s) or CD(s) (6) When refiling only to correct an thus recording the binary data. By exactly as specified in the data layout for electronic data error on the electronic version comparison CD-R uses special discs each schedule/record and in accordance with of a tariff sheet and not in the paper version, impregnated with an organic dye which the general instructions. use the same file name, pagination and serves the same function as the pits, but at (3) All tariff sheets filed under a given submittal date. a much lower cost. Both kinds of discs are docket number should all be included in the (7) Each diskette must have a label affixed readable with a traditional CD-ROM drive. same ‘‘file’’ or data set, if possible. (Large to it stating the pipeline’s name. The CD Other kinds of discs, magneto optical, or files may be split as a matter of convenience must be enclosed in an appropriate disc floptical discs are not readable by the or diskette size limitation). The file should be protector with a label affixed to the protector common CD-ROM drive and require a named: ‘‘TFMMDDYY.ASC’’ where ‘‘TF’’ stating the pipeline’s name. The label must different system altogether. stands for ‘‘Tariff Filing’’, and ‘‘MMDDYY’’ is also state that tariff sheets are enclosed. If What is Level One ISO 9660? Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9633

The ISO 9660 standard is for file directory superseded sheet. However, if a sheet ‘‘Substitute’’ in accordance with Guideline systems on CD-ROMs. It is a non-proprietary designated as superseded is subsequently (3) above or ‘‘ll Rev’’ in accordance with standard and can be used on different rejected, it is not necessary to refile solely to Guideline (8), depending on whether the platforms. It defines naming conventions, correct the superseded sheet designation. retroactive filing is in the same docket as or and directory depth. There are two main (See Example 1.) a different docket from the sheet being levels of ISO 9660: level one and level two. (5) Rejected Sheets. If a sheet is rejected by replaced. The rest of the sheets should be The major difference lies within the naming order of the Commission, do not reuse the designated as a ‘‘Substitute’’ of each sheet conventions. Level one ISO 9660 allows for pagination of the rejected sheets. Designate a already on file. For the first new sheet in the MS-DOS style filenames (eight character and sheet ‘‘Substitute’’ if it is filed to replace a series of sheets, the superseded sheet shall be three character extensions). Level two ISO rejected sheet in the same proceeding, but do designated in accordance with Guideline (4) 9660 allows for thirty-two character not designate a rejected sheet as the above. However, the remainder of the sheets filenames. Because the commission relies superseded sheet. Refer to Guidelines (3) and in the series should supersede each other in upon MS-DOS compatible personal (4). order, even though they are all filed in the computers, data submitted on CD-ROMs (6) Alternate Sheets. When filing two same docket. In this way, the ‘‘superseded’’ must be in compliance with Level One ISO versions of a proposed tariff sheet, designate designation will reflect the last sheet in effect 9660. the sheets ‘‘ ll Revised Sheet No. ll’’ on each given effective date. (See Examples and ‘‘Alternate ll Revised Sheet No. ll.’’ 5 and 6.) Exhibit B—Tariff Sheet Pagination Paginate a replacement alternate sheet ‘‘Sub (10) Canceled Sheets. When filing to cancel Guidelines Alternate.’’ a rate schedule, file one sheet with a new Section 154.102(d)(2) of the Commission’s (7) Inserted Sheets. Designate sheets revision number and the sheet number of the regulations requires companies to number inserted between two consecutively first canceled sheet. Designate as superseded their tariff sheets as provided below. numbered sheets using an uppercase letter ‘‘Sheet Nos. ll–ll’’ where the blanks (1) Original Sheets. Paginate a sheet as following the first sheet number (e.g., sheets refer to the first and last canceled sheet ‘‘Original Sheet No. ll’’ when the sheet inserted between sheets 8 and 9 would be numbers in a series. The specific pagination number has not been used previously in the 8A, 8B, etc.). For sheets inserted between two of each individual canceled sheet should be tariff volume. When filing an entire original consecutively lettered sheets, add a ‘‘.’’ included in the body of the tariff sheet. When or revised tariff volume, all sheets should be followed by a two digit number (e.g., sheets using the formerly canceled sheet numbers, paginated as ‘‘Original Sheet No. ll’’ inserted between sheets 8A and 8B would be refer to the pagination of the sheets listed in unless the sheet falls within the exception 8A.01 through 8A.99). For further insertions, the body of the canceling sheet, and paginate under Guideline (11). add a lowercase letter (e.g., between sheets each sheet with the next higher revision (2) Revised Sheets. Designate a sheet as 8A.01 and 8A.02 would be 8A.01a, 8A.01b, number. See Example 8. ‘‘Revised’’ if it is (a) filed in a different etc.). (11) Sheets Reserved For Future Use. When proceeding than the sheet it is superseding or (8) Pre-dated Sheets. When a sheet is filed reserving a number of sheets for future use, (b) filed in the same proceeding but given a with a proposed effective date which pre- file one sheet paginated ‘‘Sheet Nos. ll– new proposed effective date. Each dates the effective date of a suspended or ll’’, where the blanks refer to the first and subsequent ‘‘Revised’’ pagination should be effective sheet with the same number filed in last reserved sheet numbers in series. In the numbered sequentially. (See Examples 1 and a different proceeding, designate the new body of the sheet state ‘‘Reserved for Future 2.) sheet ‘‘ll Rev ll Revised Sheet No. ll’’ Use.’’ (See Example 9.) Note: in the electronic (3) Substitute Sheets. Designate a sheet as where the second and third blanks are tariff sheet records, report the first sheet ‘‘Substitute ll Revised Sheet No. ll’’ if numbered the same as the sheet with the number in the series in the ‘‘Sheet No.’’ field it is filed to replace a sheet filed in the same later effective date and the first blank and the full pagination in the ‘‘Sheet ID’’ proceeding with the same effective date. If a contains ‘‘1st,’’ ‘‘2nd,’’ etc. Commonly, this field. substitute sheet needs to be replaced, situation occurs when a sheet is suspended paginate the new sheet as ‘‘Second for five months and subsequent sheets need (12) Abbreviations. Pagination cannot Substitute,’’ and so on. (See Example 1.) to be made effective prior to the date the exceed 40 characters. Abbreviate from (4) Superseded Sheets. Designate as the suspended sheet becomes effective. (See left to right using the Abbreviation superseded sheet the most recent sheet filed Example 3.) Note: When using the ‘‘1st Rev’’ Conventions List in Exhibit C. in a different proceeding effective or pagination, drop extraneous words if the Abbreviate only as needed to reduce the proposed to be effective on the same day or superseded sheet provides the same pagination to 40 characters or less. (See on a day prior to the new sheet. This means information. (See Example 4.) Example 7.) Electronic and paper when filing a substitute sheet the designated (9) Retroactive Sheets. When filing a versions of a tariff sheet must be superseded sheet stays the same. Provided retroactive change back to a certain date, all paginated exactly alike, including that the sheet does not fall under the sheets which are or were in effect from that exception in guideline (9). Never designate a date forward need to be changed. The first abbreviations. rejected or suspended sheet as the sheet should be designated either as BILLING CODE 6717±01±P 9634 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9635 9636 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9637

[FR Doc. 96–5165 Filed 3–8–96; 8:45 am] BILLING CODE 6717±01±C 9638 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations

DEPARTMENT OF THE TREASURY and without entry. The list of dispensing with notice and public designated organizations entitled to this procedure thereon as unnecessary. For Customs Service duty-free entry privilege are delineated the same reason, good cause exists for at § 148.87(b), Customs Regulations (19 dispensing with a delayed effective date 19 CFR Part 148 CFR 148.87(b)). Thus, the list of public under 5 U.S.C. 553(d)(1) and (3). Since [T.D. 96±23] international organizations maintained this document is not subject to the by Customs is for the limited purpose of notice and public procedure Changes to Customs List of identifying those organizations entitled requirements of 5 U.S.C. 553, it is not Designated Public International to the duty-free entry privilege; it does subject to provisions of the Regulatory Organizations: INTERPOL not necessarily include all of the Flexibility Act (5 U.S.C. 601 et seq.). international organizations that are on This document does not meet the AGENCY: Customs Service, Treasury. the list maintained by the Department of criteria for a ‘‘significant regulatory ACTION: Final rule. State, which delineates all of the action’’ as specified in E.O. 12866. international organizations designated SUMMARY: This document amends the Drafting Information Customs Regulations by adding the by the President regardless of the extent The principal author of this document International Criminal Police of the privileges conferred. was Gregory R. Vilders, Attorney, Organization (INTERPOL) to Customs Executive Order (EO) 12425 of June Regulations Branch, Office of list of designated public international 16, 1983, 48 FR 28069, 3 CFR part 1983 Regulations and Rulings. organizations entitled to certain free Comp.p. 193, 19 Weekly entry privileges provided for under Comp.Pres.Doc. 885, designated the List of Subjects in 19 CFR Part 148 provisions of the International International Criminal Police Customs duties and inspection, Organizations Immunities Act. Organization (INTERPOL) as a public international organization with limited Executive orders, Foreign officials, EFFECTIVE DATE: March 11, 1996. privileges; certain privileges, such as Government employees, International FOR FURTHER INFORMATION CONTACT: duty-free customs entry and exemption organizations, Privileges and Dennis Sequeira, Director, International from federal internal-revenue immunities, Taxes. Organizations & Agreements Division, importation taxes were not extended to Amendment to the Regulations Office of International Affairs (202) 927– INTERPOL. See T.D. 93–45. Thus, 1480. INTERPOL was listed on the For the reasons stated above, part 148, Customs Regulations (19 CFR part 148), SUPPLEMENTARY INFORMATION: Department of State’s list of designated international organizations, but not is amended as set forth below: Background Customs list. By EO 12971 of September PART 148ÐPERSONAL The International Organizations 15, 1995, 60 FR 48617, 3 CFR part 1996 DECLARATIONS AND EXEMPTIONS Immunities Act, 22 U.S.C. 288, Comp.p. ll, 31 Weekly generally provides that certain Comp.Pres.Doc. 1572, the President 1. The general authority citation for international organizations, agencies, amended EO 12425 in order to extend part 148 and the specific authority and committees, those in which the some of the privileges, exemptions, and citation for § 148.87 continue to read as United States participates or otherwise immunities to INTERPOL withheld by follows: has an interest and which have been EO 12425; one being the privilege of Authority: 19 U.S.C. 66, 1496, 1498, 1624. designated by the President through duty-free Customs entry. Accordingly, The provisions of this part, except for subpart appropriate Executive Order as public Customs is amending its list of C, are also issued under 19 U.S.C. 1202 international organizations, are entitled designated public international (General Note 20, Harmonized Tariff to enjoy certain privileges, exemptions, organizations at § 148.87(b) of the Schedule of the United States); and immunities conferred by the Act. Customs Regulations (19 CFR 148.87(b)) * * * * * The Department of State lists the public to include INTERPOL. Section 148.87 also issued under 22 U.S.C. international organizations, designated Inapplicability of Public Notice and 288. by the President as entitled to enjoy any Comment Requirements, Delayed * * * * * measure of the privileges, exemptions, Effective Date Requirements, the 2. Section 148.87(b) is amended by and immunities conferred by the Act, in Regulatory Flexibility Act, and adding the following, in appropriate the notes following the provisions of Executive Order 12866 alphabetical order, to the table, to read Section 288. as follows: One of the privileges provided for Because this amendment merely under the Act is that the baggage and corrects the listing of designated § 148.87 Officers and employees of, and effects of alien officers, employees, and organizations entitled by law to free representatives to, public international representatives—and their families, entry privileges as public international organizations. suites, and servants—to the designated organizations, pursuant to 5 U.S.C. * * * * * organization, are admitted free of duty 553(b)(B), good cause exists for (b) * * *

Executive Organization order Date

******* International Criminal Police Organization (INTERPOL)ÐLimited privileges...... 12425 June 16, 1983. 12971 Sep. 15, 1995.

******* Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9639

George J. Weise, DEPARTMENT OF THE TREASURY ACTION: Direct final rule. Commissioner of Customs. SUMMARY: In this action, U.S. Approved: February 11, 1996. Internal Revenue Service Environmental Protection Agency John P. Simpson, 26 CFR Part 31 (USEPA) is approving a revision to the Deputy Assistant Secretary of the Treasury. Wisconsin State Implementation Plan [TD 8634] [FR Doc. 96–5683 Filed 3–8–96; 8:45 am] (SIP) for the purpose of establishing a BILLING CODE 4820±02±P RIN 1545±AT11 Clean-Fuel Fleet Program. Wisconsin submitted the SIP revision request to Withholding on Distributions of Indian satisfy a federal mandate, found in the Gaming Profits to Tribal Members; Clean Air Act, requiring certain states to DEPARTMENT OF HEALTH AND Correction establish Clean-Fuel Fleet Programs. HUMAN SERVICES AGENCY: Internal Revenue Service, This revision establishes and requires the implementation of a Clean-Fuel Food and Drug Administration Treasury. Fleet Program in the Milwaukee ozone ACTION: Correction to final regulations. 21 CFR Part 5 nonattainment area. SUMMARY: This document contains a DATES: This ‘‘direct final’’ rule is Delegations of Authority and correction to final regulations [TD 8634] effective May 10, 1996, unless USEPA Organization; Correction which were published in the Federal receives adverse or critical comments by Register for Tuesday, December 19, April 10, 1996. If the effective date is AGENCY: Food and Drug Administration, 1995 (60 FR 65237). The final delayed, timely notice will be published HHS. regulations relate to the income tax in the Federal Register. ACTION: Final rule; correction. withholding requirement on ADDRESSES: Comments may be mailed distributions of profits from certain to: Carlton T. Nash, United States SUMMARY: The Food and Drug gaming activities made to members of Environmental Protection Agency, Administration (FDA) is correcting a Indian tribes. Region 5, Air and Radiation Division, final rule that appeared in the Federal EFFECTIVE DATE: December 19, 1995. Air Programs Branch (AP–18J), 77 West Register of May 19, 1995 (60 FR 26825). FOR FURTHER INFORMATION CONTACT: Jackson Boulevard, Chicago, Illinois, This document amended the regulations Rebecca Wilson (202) 622–6040 (not a 60604. for delegations of authority covering the toll-free number). Copies of the documents relevant to certification of true documents and the this action are available at the above SUPPLEMENTARY INFORMATION: use of the Department seal. In the final address for public inspection during rule, ‘‘The Director, Office of Food Background normal business hours. FOR FURTHER INFORMATION CONTACT: Labeling (CFSAN).’’ was inadvertently The final regulations that are the Brad omitted from the regulation. This subject to this correction are under J. Beeson at (312) 353–4779. document corrects that error. section 3402 of the Internal Revenue SUPPLEMENTARY INFORMATION: EFFECTIVE DATE Code. : May 19, 1995. I. Background FOR FURTHER INFORMATION CONTACT: Need for Correction On November 15, 1990, Congress Ellen Rawlings, Division of Management As published, TD 8634 contains an enacted amendments to the 1977 Clean Systems and Policy (HFA–340), Food error that is in need of clarification. Air Act (CAA), codified at 42 U.S.C. and Drug Administration, 5600 Fishers 7401–7671q. The Clean-Fuel Fleet Lane, Rockville, MD 20857, 301–443– Correction of Publication Program (CFFP) is contained under Part 4976. Accordingly, the publication of final C, entitled ‘‘Clean Fuel Vehicles,’’ of In FR Doc. 95–12398, appearing on regulations which are the subject of FR Title II of the Clean Air Act. Part C was page 26825, in the Federal Register of Doc. 95–30683, is corrected as follows: added to the CAA to establish two Friday, May 19, 1995, the following On page 65237, column one, in the programs, a clean-fuel vehicle pilot correction is made: heading, the ‘‘RIN’’ ‘‘1545–AT12’’ is program in the state of California (the corrected to read ‘‘1545–AT11’’. California Pilot Test Program) and a § 5.22 [Corrected] Cynthia E. Grigsby, federal CFFP in certain ozone and On page 26826, in the second column, Chief, Regulations Unit, Assistant Chief carbon monoxide (CO) nonattainment § 5.22 is corrected by adding paragraph Counsel (Corporate). areas. (a)(9)(xiii) to read as follows: [FR Doc. 96–5728 Filed 3–8–96; 8:45 am] The CFFP will introduce lower pollution emitting vehicles, ‘‘clean-fuel § 5.22 Certification of true copies and use BILLING CODE 4830±01±U of Department seal. vehicles’’ (CFVs), into centrally-fueled fleets by requiring covered fleet (a) * * * ENVIRONMENTAL PROTECTION operators to include a percentage of (9) * * * AGENCY CFVs in their new fleet purchases. The (xiii) The Director, Office of Food goal of the CFFP is to reduce emissions Labeling, CFSAN. 40 CFR Part 52 of non-methane organic gasses (NMOG), * * * * * oxides of nitrogen (NOx), and CO [WI64±01±7148a; FRL±5416±8] through the introduction of CFVs into Dated: February 2, 1996. the covered areas. Both NMOG and NOx William K. Hubbard, Approval and Promulgation of State Implementation Plan; Wisconsin; are precursors of ozone and, in most Associate Commissioner for Policy Clean-Fuel Fleet Program areas, their reduction will reduce the Coordination. concentration of ozone in covered ozone [FR Doc. 96–5688 Filed 3–8–96; 8:45 am] AGENCY: United States Environmental nonattainment areas. Reductions of BILLING CODE 4160±01±F Protection Agency (USEPA). vehicular CO emissions will reduce the 9640 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations concentration of CO in covered CO Document (TSD), dated September 6, stringent CFV standards, which are nonattainment areas. 1995, which is available from the referred to as low-emission vehicle Congress chose centrally-fueled fleets Region 5 Office, listed above. (LEV) standards, ultra low-emission because operators of these fleets have vehicle (ULEV) standards, and zero- A. Covered Areas more control over obtaining fuel than emission vehicle (ZEV) standards. In the general public. Additionally, the The SIP revision needs to list those addition, a vehicle certified by the EPA control that operators maintain over areas where the CFFP will be to meet the inherently low-emission their fleets simplifies maintenance and implemented, as required by section vehicle (ILEV) standard, found in 40 refueling of these vehicles. Finally, 246(a)(2) of the CAA. In Wisconsin, the CFR 88.311–93, is also considered a because fleet vehicles typically travel applicable areas defined by section CFV. more miles on an annual basis than do 246(a)(2) include Kenosha, Milwaukee, NR 487.02(6) defines a CFV as a non-fleet vehicles, they provide greater Ozaukee, Racine, Washington, and vehicle which has been certified to opportunity to improve air quality on a Waukesha counties. meet, for any model year, a set of per vehicle basis. Section NR 487.01(1) of the emission standards, contained in Table Section 182(c)(4) of the CAA allows Wisconsin Administrative Code defines I of the CFFP rule. The standards states to opt-out of the CFFP by the covered area to include Kenosha, specified in the rule are the same as submitting, for EPA approval, a SIP Milwaukee, Ozaukee, Racine, those established in 40 CFR 88.104–94, revision consisting of a substitute Washington, and Waukesha counties. 40 CFR 88.311–93, and 40 CFR 88.306– program resulting in as much or greater These are the same counties as required 944. long term emission reductions in ozone by the CAA. F. Percentage Requirements producing and toxic air emissions as the B. Definitions CFFP. The EPA may approve such a Section 246(b) of the CAA establishes revision ‘‘only if it consists exclusively Sections 241(1) to (7) of the CAA, and phase-in requirements for covered fleets of provisions other than those required 40 CFR 88.302–94, define specific terms applicable to new vehicle acquisitions. under the [CAA] for the area.’’ that are to be used in the state NR 487.03 contains the CFV purchase regulations. requirements for the Wisconsin’s CFFP. II. Program Requirements NR 487.02 contains definitions of the The phase-in schedule in Wisconsin’s Unless a state chooses to opt-out of terms used by Wisconsin in the CFFP rule is identical to the schedule in the the CFFP under section 182(c)(4) of the rule. The revision’s definitions are CAA. CAA, section 246 of the CAA directs a consistent with section 241(1) to (7) of G. Credit Program state containing covered areas to revise the CAA as well as 40 CFR 88.302–94. its SIP, within 42 months after Section 246(f) of the CAA and 40 CFR C. Covered Fleets enactment of the CAA, to establish a 88.304–94 require the state to CFFP. The CFFP shall require a Section 241(5) of the CAA defines a implement a credit program as part of specified percentage of all newly ‘‘covered fleet’’ as 10 or more motor the CFFP. Briefly, the Clean-Fuel Fleet acquired vehicles of covered fleets, vehicles that are owned or operated by (CFF) credit program establishes a beginning with model year (MY) 1998 a single person. market-based mechanism that allows and thereafter, to be CFVs and such NR 487.01(1) and 487.02, taken fleet owners some flexibility in vehicles shall use the fuel on which the together, identify the vehicles/fleets that complying with the CFF purchase vehicle was certified to be a CFV (or to are included in Wisconsin’s CFFP, and requirement. Fleet owners may meet the use a fuel that will result in even fewer are consistent with section 241(5) of the purchase requirements in any of several emissions than the fuel that was used CAA. ways: (1) By the purchase of more CFVs than the minimum required by a CFFP; for certification), when operating in the D. Vehicles Classes Covered covered area. (2) by the purchase of CFVs which meet Sections 242 and 243 of the CAA and more stringent emission standards than III. State Submittal 40 CFR part 88, subpart C, define the the minimum required by the CFFP; (3) The state of Wisconsin did not choose vehicle classes covered by the CFFP. by the purchase of CFVs otherwise to opt-out of the CFFP pursuant to Additionally, section 245(a) of the CAA exempt from the CFFP; and (4) by the section 182(c)(4) of the CAA and, exempts from the CFV standards purchase of CFVs before MY 1998. therefore, submitted a SIP revision on vehicles having a Gross Vehicle Weight The credits generated may be used by May 12, 1994, to implement a CFFP. Rating (GVWR) of more than 26,000 a covered fleet operator to satisfy the However, because this submittal did not pounds. purchase requirements of a CFFP or may include a fully adopted rule establishing NR 487.02(6) and (7) define the be traded by one covered fleet operator a CFFP, EPA deemed the submittal vehicle classes covered by the to another, provided the credits were incomplete. On June 7, 1995, the state Wisconsin CFFP. The classes of vehicles generated and used in, and both made a supplemental submittal that included in the Revision are identical to operators are located in, the same included a fully adopted CFFP rule. On those set forth in sections 242 and 243 nonattainment area. Certain restrictions July 20, EPA determined that the state’s of the CAA and 40 CFR part 88, subpart on the trading of the credits between SIP submittal for a CFFP was complete. C, including the 26,000 pound GVWR classes must be observed. The credits do exemption. not depreciate with time and are to be IV. EPA’s Analysis of the State’s Clean freely traded without interference by the Fuel Fleet Program E. Clean-Fuel Vehicles (CFVs) state. EPA has reviewed the state’s Section 241(7) of the CAA defines a NR 487.09 establishes a credit submittal for consistency with the CFV to mean a vehicle in a class or program that provides credits for requirements of EPA regulations. A category of vehicles that has been operators who: (1) acquire more CFVs summary of EPA’s analysis is provided certified to meet for any model year the than the Wisconsin CFFP requires in below. More detailed support for applicable CFV standards. 40 CFR any year; (2) acquire CFVs which meet approval of the state’s submittal is 88.104–94 and 40 CFR 88.306–94 more stringent emission standards than contained in a Technical Support establish three categories of increasingly the minimum requirements; (3) acquire Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9641

CFVs in exempted vehicle categories; or specified in section 246(a)(4) of the of the CFFP. 60 FR 54305 (Oct. 23, (4) acquire CFVs after November 15, CAA. 1995). 1990, but prior to MY 1998. These NR 487.14 is the enforcement section K. Recordkeeping and Monitoring eligibility requirements are consistent of the Wisconsin CFFP. This section with section 246(f) of the CAA. No specific recordkeeping and states that fleet operators are subject to NR 487 includes Tables 3, 4, 6, and monitoring requirements are found in WDNR enforcement procedures and 7, which set forth the amount of credit section 246 of the CAA or 40 CFR penalties if they fail to comply with any granted for the various ways of meeting 88.304–94. However, EPA ensures that a requirement of NR 487. the purchasing requirements explained number of questions are answered in order to determine the adequacy of a M. Transportation Control Measure above. These tables are identical to Exemptions Tables C94–2, C94–2.2, C94–4, and CFFP. 60 FR 54305 (Oct. 23, 1995). C94–4.2 of 40 CFR part 88, subpart C. (1) Does the SIP revision provide a 40 CFR 88.307–94(a) requires states to The revision requires credits for LDV reasonable process for the state to exempt any CFV, required by law to and HDV to be kept separate. Trading of determine which fleets should report participate in a CFFP, from temporal- credits between LDV and LDT is data to the state, consistent with the based (e.g., time-of-day or day-of-week) permitted. However, trading is not state’s approach to ‘‘operated in the transportation control measures (TCM) allowed between HDV and LDV or LDT covered area’’? existing for air quality reasons as long or in an upward direction. These (2) Is there a process for updating this as the exemption does not create a clear limitations and restrictions are list of potentially covered fleet and direct safety hazard. In the case of consistent with those specified in operators? high occupancy vehicle (HOV) lanes, section 246(f)(2) of the CAA. (3) Does the SIP revision include a this exemption only applies to CFVs process for the state agency to receive at that are certified to be ILEVs pursuant H. Fuel Use least the following data from fleet to 40 CFR 88.313–93. 40 CFR 88.304–94(b)(3) requires that operators: NR 487.10 exempts CFVs from the fuel on which a dual fuel/flexible (a) Numbers, categories, and fueling temporal based TCMs as long as the fuel CFV was certified to be used at all patterns of vehicles in the fleet? CFV is in compliance with applicable (b) Numbers, engine family names, times when the vehicle is in the covered emission standards. In addition, NR categories, and fueling patterns of new area. 487.10(3) specifically exempts ILEVs acquisitions? NR 487.03(3) requires that for any from HOV restrictions. These TCM (c) Numbers, engine family names, restrictions are consistent with those dual-fuel/hybrid electric vehicle to be categories, and fueling patterns of CFV considered a CFV (and therefore capable provided for in 40 CFR 88.307–94 and acquisitions? 40 CFR 88.313–93. of generating credit), the vehicle must (d) For dual-fuel/flexible-fuel be operated, while in the covered area, vehicles, data on fuel usage sufficient to N. Concluding Statement on the fuel or power source, for which demonstrate that the proper fuel was The EPA has reviewed the Wisconsin it was certified to meet applicable used when the vehicle was operated in emission standards. CFFP SIP revision submitted to the EPA the covered area? as described above. The materials I. Fuel Availability (4) Does the SIP revision describe how contained in the SIP revision represent the data will be processed, maintained, an acceptable approach to the CFFP Section 246(e) of the CAA requires the updated, and used to confirm SIP revision to require fuel providers to requirements and meet all the criteria compliance by fleets? required for approvability. make clean alternative fuel available to (5) Does the SIP revision provide for the covered fleets at central locations. oversight of the data acquisition V. Action NR 487.12 requires fuel providers to process? The EPA approves Wisconsin’s CFFP make clean alternative fuels available to Information and actions responsive to covered fleet operators at central SIP submittal. With this action, EPA these questions are provided as follows: incorporates Wisconsin’s CFFP SIP locations where technically and NR 487.05 requires any person who economically feasible. revision into the SIP, making it federally operates a fleet of 10 or more CFVs to enforceable. J. Consultation register with the WDNR. Because EPA considers this action NR 487.05 also requires the noncontroversial and routine, we are Section 246(a)(4) of the CAA requires registration to include some information that the SIP revision must be developed approving it without prior proposal. responsive to the questions above. In This action will become effective on in consultation with fleet operators, addition, NR 487.06 requires covered vehicle manufacturers, fuel producers, May 10, 1996. However, if we receive fleet operators to submit annual significant adverse comments by April distributors of motor vehicle fuel, and compliance plans to WDNR. All other interested parties, taking into 10, 1996, EPA will publish a document information required in 3(a) to 3(d) that modifies or withdraws this action. consideration operational range, above, as well as other information, is specialty uses, vehicle and fuel included in these requirements. The VI. Miscellaneous availability, costs, safety, resale values, information is reported on balance A. Applicability to Future SIP Decisions and other relevant factors. sheets and item sheets which allows the The Wisconsin Department of Natural WDNR to monitor the performance of Nothing in this action should be Resources (WDNR) organized a the operators. WDNR will review the construed as permitting, allowing or consultation committee, called the annual compliance plans for approval or establishing a precedent for any future Clean-Fuel Fleet Committee. The disapproval in keeping with NR 487.08. request for revision to any SIP. The EPA Committee met several times and shall consider each request for revision included representatives from fleet L. Enforcement to the SIP in light of specific technical, owners, fleet operators, fuel providers, The state must be able to adequately economic, and environmental factors and environmentalists. The Committee enforce the requirements of the and in relation to relevant statutory and took into consideration the factors regulations adopted for implementation regulatory requirements. 9642 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations

B. Executive Order 12866 governments in the aggregate, or to the (B) Wisconsin Statutes, section This action has been classified as a private sector. 144.3714, enacted on April 30, 1992, by Table 3 action for signature by the This federal action approves pre- Wisconsin Act 302. Regional Administrator under the existing requirements under state or * * * * * local law, and imposes no new federal procedures published in the Federal [FR Doc. 96–5735 Filed 3–8–96; 8:45 am] requirements. Accordingly, no Register on January 19, 1989 (54 FR BILLING CODE 6560±50±P 2214–2225), as revised by a July 10, additional costs to state, local, or tribal 1995 memorandum from Mary Nichols, governments, or the private sector, Assistant Administrator for Air and result from this action. 40 CFR Part 52 Radiation. The Office of Management D. Petitions for Judicial Review [MO±30±1±7152a; FRL±5424±7] and Budget has exempted this Under section 307(b)(1) of the Act, regulatory action from E.O. 12866 petitions for judicial review of this Approval and Promulgation of review. action must be filed in the United States Implementation Plans; State of C. Regulatory Flexibility Court of Appeals for the appropriate Missouri Under the Regulatory Flexibility Act, circuit by May 10, 1996. Filing a AGENCY: Environmental Protection 5 U.S.C. 600 et seq., EPA must prepare petition for reconsideration by the Agency (EPA). a regulatory flexibility analysis Administrator of this final rule does not ACTION: Direct final rule. assessing the impact of any proposed or affect the finality of this rule for the SUMMARY: By this action the EPA gives final rule on small entities (5 U.S.C. 603 purposes of judicial review, nor does it conditional approval to the State and 604). Alternatively, EPA may certify extend the time within which a petition Implementation Plan (SIP) submitted by that the rule will not have a significant for judicial review may be filed and the state of Missouri for the purpose of impact on a substantial number of small shall not postpone the effectiveness of fulfilling the requirements set forth in entities. Small entities include small such rule or action. This action may not the EPA’s General Conformity rule. The businesses, small not-for-profit be challenged later in proceedings to SIP was submitted by the state to satisfy enterprises, and government entities enforce its requirements (see section the Federal requirements in 40 CFR with jurisdiction over populations of 307(b)(2)). 51.852 and 93.151. less than 50,000. List of Subjects in 40 CFR Part 52 DATES: This action will be effective May This approval does not create any Environmental protection, Air 10, 1996, unless by April 10, 1996, new requirements. Therefore, I certify pollution control, Hydrocarbons, adverse or critical comments are that this action does not have a Incorporation by reference, received. significant impact on any small entities Intergovernmental relations, Ozone, ADDRESSES: Copies of the documents affected. Moreover, due to the nature of Motor vehicle pollution, Reporting and relevant to this action are available for the federal-state relationship under the recordkeeping requirements. public inspection during normal Act, preparation of the regulatory Dated: January 17, 1996. business hours at the: Environmental flexibility analysis would constitute Protection Agency, Air Planning and federal inquiry into the economic Valdas V. Adamkus, Development Branch, 726 Minnesota reasonableness of the state action. The Regional Administrator. Avenue, Kansas City, Kansas 66101; and Act forbids EPA to base its actions Part 52, chapter I, title 40 of the Code EPA Air & Radiation Docket and concerning SIPs on such grounds. of Federal Regulations is amended as Information Center, 401 M Street, SW., Union Electric Co. v. U.S. E.P.A., 427 follows: Washington, DC 20460. U.S. 246, 256–66 (1976). PART 52Ð[AMENDED] FOR FURTHER INFORMATION CONTACT: Lisa Under Section 202 of the Unfunded V. Haugen at (913) 551–7877. Mandates Reform Act of 1995 1. The authority citation for part 52 (‘‘Unfunded Mandates Act’’), signed continues to read as follows: SUPPLEMENTARY INFORMATION: into law on March 22, 1995, the EPA Authority: 42 U.S.C. 7401–7671q. I. Background must prepare a budgetary impact Section 176(c) of the Clean Air Act Subpart YYÐWisconsin statement to accompany any proposed (CAA), as amended (the Act), requires or final rule that includes a federal 2. Section 52.2570 is amended by the EPA to promulgate criteria and mandate that may result in estimated adding paragraph (c)(87) to read as procedures for demonstrating and costs to state, local, or tribal follows: ensuring conformity of Federal actions governments in the aggregate; or to the to an applicable implementation plan private sector, of $100 million or more. § 52.2570 Identification of plan. developed pursuant to section 110 and Under Section 205, the EPA must select * * * * * Part D of the Act. Conformity to an SIP the most cost-effective and least (c) * * * is defined in the Act as meaning burdensome alternative that achieves (87) The state of Wisconsin requested conformity to an SIP’s purpose of the objectives of the rule and is a revision to the Wisconsin State eliminating or reducing the severity and consistent with statutory requirements. Implementation Plan (SIP). This number of violations of the National Section 203 requires the EPA to revision is for the purpose of Ambient Air Quality Standards establish a plan for informing and establishing and implementing a Clean- (NAAQS) and achieving expeditious advising any small governments that Fuel Fleet Program to satisfy the federal attainment of such standards. The may be significantly or uniquely requirements for a Clean Fuel Fleet Federal agency responsible for the impacted by the rule. Program to be part of the SIP for action is required to determine if its The EPA has determined that the Wisconsin. actions conform to the applicable SIP. approval action promulgated today does (i) Incorporation by reference. On November 30, 1993, EPA not include a federal mandate that may (A) Chapter 487 of the Wisconsin promulgated the final rule (hereafter result in estimated costs of $100 million Administrative Code, effective June 1, referred to as the General Conformity or more to either state, local, or tribal 1995. rule), which establishes the criteria and Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9643 procedures governing the determination with the intent of the Federal rule. The document in the Federal Register of conformity for all Federal actions, STAPPA/ALAPCO rule also contains publication, the EPA is proposing to except Federal highway and transit ‘‘more stringent’’ and ‘‘lateral’’ options approve the SIP revision should adverse actions. which change the substance of the or critical comments be filed. The St. Louis area was designated Federal rule. Missouri did not adopt any If the EPA receives such comments, nonattainment for ozone and carbon of these options from the model rule. this action will be withdrawn before the monoxide (CO) in 1978. On November Missouri rule 10 CSR 10–6.300 was effective date by publishing a 6, 1991, EPA promulgated a rule which adopted by the Missouri Air subsequent document that will classified the St. Louis area as a Conservation Commission, after proper withdraw the final action. All public moderate ozone nonattainment area, notice and public hearing, on January comments received will then be and as an unclassified nonattainment 12, 1995, and became effective on May addressed in a subsequent final rule area for CO. In this same rulemaking, 28, 1995. The rule applies to all areas based on this action serving as a EPA promulgated nonattainment in the state of Missouri which are proposed rule. The EPA will not designations for three areas in Missouri designated as nonattainment or institute a second comment period on which failed to achieve the NAAQS for maintenance for any criteria pollutant or this action. Any parties interested in lead. The nonattainment areas are standard for which there is an NAAQS. commenting on this action should do so identified as portions of Iron County, at this time. III. Conditional Approval Missouri, in the vicinity of the Asarco Nothing in this action should be primary lead smelting facility; the area EPA has determined that SIP construed as permitting or allowing or surrounding the Doe Run primary/ revisions which use, verbatim, the establishing a precedent for any future secondary lead smelter-refinery model rule developed by STAPPA/ request for revision to any SIP. Each installation near Boss, Missouri; and the ALAPCO are not approvable. Two request for revision to the SIP shall be area in the vicinity of the Doe Run sentences added by STAPPA/ALAPCO considered separately in light of specific primary lead smelter in Herculaneum, as clarifying language make the model technical, economic, and environmental Missouri. Kansas City was redesignated rule more stringent than the Federal factors, and in relation to relevant to attainment for ozone, and a General Conformity rule. Missouri rules statutory and regulatory requirements. maintenance plan was approved, in a 10 CSR 10–6.300(3)(C)4 and (9)(B)2 Under the Regulatory Flexibility Act, June 23, 1992, Federal Register notice. include this language. EPA did not 5 U.S.C. 600 et seq., EPA must prepare Section 51.851 (93.151) of the General make a determination as to the a regulatory flexibility analysis Conformity rule requires that states approvability of the language in the assessing the impact of any proposed or submit an SIP revision containing the STAPPA/ALAPCO rule until after the final rule on small entities (5 U.S.C. 603 criteria and procedures for assessing the state of Missouri officially submitted the and 604). Alternatively, EPA may certify conformity of Federal actions to the required SIP revision. However, in a that the rule will not have a significant applicable SIP, within 12 months after letter dated December 7, 1995, from impact on a substantial number of small November 30, 1993. As the rule applies David Shorr, Director, Missouri entities. Small entities include small to all nonattainment areas and Department of Natural Resources businesses, small not-for-profit maintenance areas, an SIP revision (MDNR), to Dennis Grams, Regional enterprises, and government entities which addresses the requirements of the Administrator, EPA, the state has with jurisdiction over populations of General Conformity rule became due on committed to change the unapprovable less than 50,000. November 30, 1994. sections and resubmit the SIP revision, Conditional approvals of SIP within one year from December 7, 1995. submittals under section 110 and II. Review of State Submittal Under section 110(k)(4) of the Act, subchapter I, Part D of the CAA do not On February 14, 1995, the state of EPA may grant a conditional approval of create any new requirements, but Missouri submitted a General this revision based on the state’s simply approve requirements that the Conformity SIP revision. The commitment to correct deficiencies by a state is already imposing. Therefore, submission included Missouri rule 10 date certain, but not later than one year because the Federal SIP approval does CSR 10–6.300 (10–6.300), which applies after the date of approval of the plan not impose any new requirements, EPA to all areas in the state of Missouri revision. Furthermore, section 110(k)(4) certifies that it does not have a which are designated as nonattainment of the Act states that, should the state significant impact on any small entities or maintenance for any criteria pollutant fail to meet its commitment, this affected. Moreover, due to the nature of or standard for which there is an conditional approval will convert to a the Federal-state relationship under the NAAQS. The General Conformity rule disapproval. As the state has committed CAA, preparation of a regulatory establishes the criteria for EPA approval to correct this SIP revision within one flexibility analysis would constitute of SIPs. See 40 CFR 51.851 and 93.151. year from December 7, 1995, EPA grants Federal inquiry into the economic These criteria provide that the state a conditional approval of the state’s reasonableness of state action. The CAA provisions must be at least as stringent submittal. forbids EPA to base its actions as the requirements specified in EPA’s concerning SIPs on such grounds General Conformity rule, and that they EPA ACTION (Union Electric Co. v. U.S. E.P.A., 427 can be more stringent only if they apply By this action, EPA grants conditional U.S. 246, 256–66 (S.Ct. 1976); 42 U.S.C. equally to Federal and nonfederal approval of Missouri’s February 14, 7410(a)(2)). entities. 1995, submittal. This SIP revision If the conditional approval is The state of Missouri chose to use the substantially meets the requirements set converted to a disapproval under model General Conformity rule forth in 40 CFR 51.851 and 93.151, section 110(k), based on the state’s developed by the State and Territorial except as noted above. failure to meet the commitment, it will Air Pollution Program Administrators The EPA is publishing this action not affect any existing state (STAPPA)/Association of Local Air without prior proposal because the requirements applicable to small Pollution Control Officials (ALAPCO). Agency views this as a noncontroversial entities. Federal disapproval of the state The STAPPA/ALAPCO model rule amendment and anticipates no adverse submittal does not affect its state added clarifying changes consistent comments. However, in a separate enforceability. Moreover, EPA’s 9644 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations disapproval of the submittal does not enforce its requirements. (See section 40 CFR Part 52 impose a new Federal requirement. 307(b)(2).) Therefore, EPA certifies that this [OH89±1±7254a; FRL±5434±7] List of Subjects in 40 CFR Part 52 disapproval action does not have a Approval and Promulgation of significant impact on a substantial Environmental protection, Air Implementation Plans; Ohio number of small entities, because it does pollution control, Carbon monoxide, not remove existing state requirements Incorporation by reference, AGENCY: United States Environmental or substitute a new Federal requirement. Intergovernmental relations, Lead, Protection Agency (USEPA). This action has been classified as a Ozone, Reporting and recordkeeping ACTION: Direct final rule. Table 3 action for signature by the requirements, Volatile organic SUMMARY: This document approves a Regional Administrator under the compounds. procedures published in the Federal State Implementation Plan (SIP) Register on January 19, 1989, (54 FR Dated: February 6, 1996. revision for the State of Ohio for the 2214–2225), as revised by a July 10, Dennis Grams, general conformity rules. The general 1995, memorandum from Mary Nichols, Regional Administrator. conformity SIP revisions enable the Assistant Administrator for Air and Part 52, chapter I, title 40 of the Code State of Ohio to implement and enforce Radiation. The Office of Management of Federal Regulations is amended as the Federal general conformity and Budget has exempted this follows: requirements in the nonattainment or regulatory action from E.O. 12866 maintenance areas at the State or local review. PART 52Ð[AMENDED] level. General Conformity assures that federal actions conform to the State plan Unfunded Mandates 1. The authority citation for part 52 to attain and maintain the public health Under sections 202, 203, and 205 of continues to read as follows: based air quality standards. The the Unfunded Mandates Reform Act of Authority: 42 U.S.C. 7401–7671q. rationale for the approval and other 1995 (‘‘Unfunded Mandates Act’’), information is provided in this signed into law on March 22, 1995, EPA Subpart AAÐMissouri document. must undertake various actions in DATES: This action is effective May 10, association with proposed or final rules 2. Section 52.1320 is amended by 1996 unless adverse comments are that include a Federal mandate that may adding paragraph (c)(93) to read as received by April 10, 1996. If the result in estimated costs of $100 million follows: effective date is delayed, timely notice or more to the private sector, or to state, will be published in the Federal local, or tribal governments in the § 52.1320 Identification of plan. Register. aggregate. * * * * * ADDRESSES: Through submission of this SIP, the Copies of the SIP revision (c) * * * state has elected to adopt the program are available for inspection at the provided for under section 110 of the (93) On February 14, 1995, the following address: (It is recommended CAA. These rules may bind state and Missouri Department of Natural that you telephone Patricia Morris at local governments to perform certain Resources (MDNR) submitted a new rule (312) 353–8656 before visiting the actions and also require the private which pertains to general conformity. Region 5 Office.) United States Environmental Protection Agency, sector to perform certain duties. To the (i) Incorporation by reference. extent that the rules being finalized for Region 5, Air and Radiation Division, 77 (A) New rule 10 CSR 10–6.300, West Jackson Boulevard, Chicago, approval by this action will impose new entitled Conformity of General Federal requirements, sources are already Illinois 60604. Actions to State Implementation Plans, FOR FURTHER INFORMATION CONTACT: subject to these regulations under state effective May 28, 1995. law. Accordingly, no additional costs to Patricia Morris, Regulation state or local governments, or to the 3. Section 52.1323 is amended by Development Section (AR–18J), Air private sector, result from this final adding paragraph (h) to read as follows: Programs Branch, Air and Radiation Division, United States Environmental action. The EPA has also determined § 52.1323 Approval Status. that this final action does not include a Protection Agency, Region 5, 77 West * * * * * mandate that may result in estimated Jackson Boulevard, Chicago, Illinois costs of $100 million or more to state or (h) The state of Missouri commits to 60604, Telephone Number (312) 353– local governments in the aggregate or to revise 10 CSR 6.300 to remove language 8656. in paragraphs (3)(C)4. and (9)(B) which the private sector. EPA has determined SUPPLEMENTARY INFORMATION: that these rules result in no additional is more stringent than the language in costs to tribal government. the Federal General Conformity rule. In I. Background Under section 307(b)(1) of the CAA, a letter to Mr. Dennis Grams, Regional Conformity provisions first appeared petitions for judicial review of this Administrator, EPA, dated December 7, in the Clean Air Act (CAA) amendments action must be filed in the United States 1995, Mr. David Shorr, Director, MDNR, of 1977 (Pub. L. 95–95). Although these Court of Appeals for the appropriate stated: provisions did not define the term circuit by May 10, 1996. Filing a We commit to initiating a change in the conformity, they provided that no petition for reconsideration by the wording in the above paragraphs [paragraphs Federal department could engage in, Administrator of this final rule does not (3)(C)4. and (9)(B)] of Missouri rule 10 CSR support in any way or provide financial affect the finality of this rule for the 10–6.300, and to submit the change to EPA assistance for, license or permit, or purposes of judicial review, nor does it within one year from the date of this letter approve any activity which did not extend the time within which a petition [December 7, 1995]. We intend that the conform to a SIP that has been approved for judicial review may be filed, and change will give our rule the same stringency or promulgated for the nonattainment or as the General Conformity Rule. shall not postpone the effectiveness of maintenance areas. such rule or action. This action may not [FR Doc. 96–5733 Filed 3–8–96; 8:45 am] The CAA Amendments of 1990 be challenged later in proceedings to BILLING CODE 6560±50±P expanded the scope and content of the Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9645 conformity provisions by defining received by OEPA during the public and 604). Alternatively, USEPA may conformity to an implementation plan. comment period. Before the public certify that the rule will not have a Conformity is defined in Section 176(c) comment period, the OEPA also mailed significant impact on a substantial of the CAA as conformity to the SIP’s a copy of the rules to government number of small entities. Small entities purpose of eliminating or reducing the agencies located in Ohio which would include small businesses, small not-for- severity and number of violations of the be affected by the rules and requested profit enterprises, and government National Ambient Air Quality Standards comments on the rules. entities with jurisdiction over and achieving expeditious attainment of populations of less than 50,000. such standards, and that such activities III. USEPA Action This approval does not create any will not: (1) Cause or contribute to any The USEPA is approving the general new requirements. Therefore, I certify new violation of any standard in any conformity SIP revision for the State of that this action does not have a area, (2) increase the frequency or Ohio. The EPA has evaluated this SIP significant impact on any small entities severity of any existing violation of any revision and has determined that the affected. Moreover, due to the nature of standard in any area, or (3) delay timely State has fully adopted regulations the Federal-State relationship under the attainment of any standard or any which meet the provisions of the Act, preparation of the regulatory required interim emission reductions or Federal general conformity rules in flexibility analysis would constitute other milestones in any area. accordance with 40 CFR Part 93 Subpart Federal inquiry into the economic The CAA requires USEPA to B. The appropriate public participation reasonableness of the State action. The promulgate criteria and procedures for and comprehensive interagency Act forbids USEPA to base its actions determining conformity of all other consultations have been undertaken concerning SIPs on such grounds. Federal actions in the nonattainment or during development and adoption of Union Electric Co. v. U.S. E.P.A., 427 maintenance areas (actions other than this rule by the OEPA. As stated earlier, U.S. 246, 256–66 (1976). those under Title 23 U.S.C. or the the OEPA held a public hearing on the Under Section 202 of the Unfunded Federal Transit Act ) to a SIP. The general conformity submittal on May 25, Mandates Reform Act of 1995 criteria and procedures developed for 1995. No comments were received by (‘‘Unfunded Mandates Act’’), signed this purpose are called ‘‘general OEPA during the public comment into law on March 22, 1995, the USEPA conformity’’ rules. The actions under period. must prepare a budgetary impact Title 23 U.S.C. or the Federal Transit The USEPA considers this action statement to accompany any proposed Act will be addressed in a separate noncontroversial and routine. Therefore, or final rule that includes a Federal Federal Register document. The USEPA we are approving it without prior mandate that may result in estimated published the final general conformity proposal. This action will become costs to State, local, or tribal rules in the November 30, 1993, Federal effective on May 10, 1996 unless USEPA governments in the aggregate; or to the Register and codified them at 40 CFR receives adverse comments by April 10, private sector, of $100 million or more. part 51, subpart W—Determining 1996. However, if USEPA receives Under Section 205, the USEPA must Conformity of General Federal Actions adverse comments by April 10, 1996, select the most cost-effective and least to State or Federal Implementation USEPA will publish a document that burdensome alternative that achieves Plans. The general conformity rules withdraws this action. the objectives of the rule and is require the States and local air quality consistent with statutory requirements. agencies (where applicable) to adopt IV. Miscellaneous Section 203 requires the USEPA to and submit a general conformity SIP A. Applicability to Future SIP establish a plan for informing and revision to the USEPA not later than Decisions advising any small governments that November 30, 1994. Nothing in this action should be may be significantly or uniquely construed as permitting, allowing or impacted by the rule. II. Evaluation of State Submittal establishing a precedent for any future The USEPA has determined that the Pursuant to the requirements under request for revision to any SIP. The approval action promulgated today does Section 176(c)(4)(C) of the CAA, as USEPA shall consider each request for not include a Federal mandate that may amended November 15, 1990, the Ohio revision to the SIP in light of specific result in estimated costs of $100 million Environmental Protection Agency technical, economic, and environmental or more to either State, local, or tribal (OEPA) submitted a State factors and in relation to relevant governments in the aggregate, or to the Implementation Plan (SIP) revision to statutory and regulatory requirements. private sector. the USEPA on August 17, 1995. The B. Executive Order 12866 This Federal action approves pre- submittal was found complete on This action has been classified as a existing requirements under State or October 5, 1995. In its submittal, the Table 3 action for signature by the local law, and imposes no new Federal State adopted rules (Ohio Regional Administrator under the requirements. Accordingly, no Administrative Code OAC 3745–102– procedures published in the Federal additional costs to State, local, or tribal 01,-02,-03,-04,-05,-06,-07) which repeat Register on January 19, 1989 (54 FR governments, or the private sector, verbatim the USEPA general conformity 2214–2225), as revised by a July 10, result from this action. rule (40 CFR Part 93 Subpart B) with 1995 memorandum from Mary Nichols, D. Petitions for Judicial Review only minor clarifications. General Assistant Administrator for Air and Under Section 307(b)(1) of the Act, conformity is required for all areas Radiation. The Office of Management petitions for judicial review of this which are designated nonattainment or and Budget has exempted this action must be filed in the United States maintenance for any of the six National regulatory action from E.O. 12866 Court of Appeals for the appropriate Ambient Air Quality Standard (NAAQS) review. circuit by May 10, 1996. Filing a criteria pollutants (ozone, carbon C. Regulatory Flexibility petition for reconsideration by the monoxide, sulfer dioxide, nitrogen Under the Regulatory Flexibility Act, Administrator of this final rule does not dioxide, lead, and particulate matter). 5 U.S.C. 600 et seq., USEPA must affect the finality of this rule for the The OEPA held a public hearing on prepare a regulatory flexibility analysis purposes of judicial review, nor does it the general conformity submittal on assessing the impact of any proposed or extend the time within which a petition May 25, 1995. No comments were final rule on small entities (5 U.S.C. 603 for judicial review may be filed and 9646 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations shall not postpone the effectiveness of (‘‘CWA’’) which apply only to violations of up to $10,000 per violation (up to a such rule or action. This action may not that occurred prior to enactment of the maximum assessment of $25,000), or a be challenged later in proceedings to Oil Pollution Act of 1990 (‘‘OPA’’). Class II penalty of up to $10,000 per day enforce its requirements (see Section Because EPA is unaware of any on-going of violation (up to a maximum 307(b)(2)). penalty actions for pre-OPA violations, assessment of $125,000). Further, it is deleting these rules from the CFR. section 311(b)(6) now provides for List of Subjects in 40 CFR Part 52 EFFECTIVE DATE: This final rule takes different administrative proceedings for Environmental protection, Air effect on March 11, 1996. these two classes of penalties. pollution control, Incorporation by FOR FURTHER INFORMATION CONTACT: Respondents in Class I cases are given reference, Intergovernmental relations, Kevin Mould, Office of Emergency and a reasonable opportunity to be heard General conformity. Remedial Response, U.S. Environmental and to present evidence, but the hearing Dated: February 12, 1996. Protection Agency, 401 M Street SW., need not meet the requirements of the David A. Ullrich, Washington, DC 20460, mail code Administrative Procedure Act (APA) for Acting Regional Administrator. 5202G, phone (703) 603–8728; or the formal adjudications (5 U.S.C. 554). 40 CFR part 52, is amended as RCRA/Superfund Hotline, phone (800) Class II hearings, however, are on the follows: 424–9346 or (703) 603–9232 in the record and subject to 5 U.S.C. 554. Washington, DC metropolitan area. As a result of these OPA-enacted PART 52Ð[AMENDED] changes in both the penalty amounts SUPPLEMENTARY INFORMATION: and the procedures needed to be 1. The authority citation for part 52 I. Introduction followed in issuing penalties, EPA continues to read as follows: amended section 112.6 and Part 114 to Authority: 42 U.S.C 7401–7671q. On March 4, 1995 the President ensure that the provisions would be directed all Federal agencies and Subpart KKÐOhio applicable only to violations of the Oil departments to conduct a Pollution Prevention regulations comprehensive review of the regulations 2. Section 52.1870 is amended by contained in 40 CFR Part 112 which they administer and, by June 1, 1995 to adding paragraph (c) (107) to read as occurred prior to enactment of OPA identify those rules that are obsolete or follows: (August 18, 1990). 57 FR 52704 (Nov. 4, unduly burdensome. EPA has 1992). At the present time—more than § 52.1870 Identification of plan. conducted a review of all of its rules, five years after enactment of OPA—EPA * * * * * including rules issued under the CWA. is unaware on any on-going penalty (c) * * * 33 U.S.C. 1251 et seq. Based upon this actions for violations of the Part 112 (107) Approval—On August 17, 1995, review, EPA is today eliminating the regulations which occurred prior to the Ohio Environmental Protection following obsolete CWA rules from the August 18, 1990. EPA is therefore Agency submitted a revision to the State CFR: 40 CFR section 112.6, Part 114, deleting section 112.6 and Part 114 from Implementation Plan for general and section 117.22. the CFR. conformity rules. The general II. Obsolete Rules As explained in a prior Federal conformity rules enable the State of Register notice, EPA will use two sets Ohio to implement and enforce the Civil Penalties for Violation of the Oil of procedures for assessing Federal general conformity Pollution Prevention Regulations administrative penalties for violations of requirements in the nonattainment or (Section 112.6 and Part 114) CWA section 311(b)(3) occurring after maintenance areas at the State or local The civil penalty provision of the oil August 18, 1990. 57 FR 52704 (Nov. 4, level in accordance with 40 CFR part 93, pollution prevention regulations (40 1992). For Class I penalties, the Agency subpart B—Determining Conformity of CFR 112.6), and the related civil penalty follows generally the procedures set General Federal Actions to State or provisions and procedures at 40 CFR forth in the proposed 40 CFR 28, Non- Federal Implementation Plans. part 114 were promulgated in 1974 APA Consolidated Rules of Practice for (i) Incorporation by reference. August pursuant to section 311(j) of the CWA. Administrative Assessment of Civil 1, 1995, Ohio Administrative Code 39 FR 31602, August 29, 1974. Part 112 Penalties. 56 FR 29996 (July 1, 1991). Chapter 3745–102, effective August 21, sets out, for onshore and offshore non- For the assessment of CWA section 311 1995. transportation-related facilities, Class II penalties, the Agency uses as [FR Doc. 96–5737 Filed 3–8–96; 8:45 am] requirements designed to prevent guidance the Consolidated Rules of BILLING CODE 6560±50±P discharges of oil into or upon Practice Governing the Administrative ‘‘navigable waters and adjoining Assessment of Civil Penalties and the shorelines.’’ 40 CFR 112.6 and 114.1 Revocation or Suspension of Permits at 40 CFR Parts 112, 114, and 117 each provide that violations of the oil 40 CFR 22. pollution prevention regulations may [FRL±5432±9] result in the assessment of an Notification of Hazardous Substances administrative penalty of not more than Discharge(s) and Prohibition Against Oil Discharge Program; Removal of Unauthorized Discharges Legally Obsolete Rules $5,000 per day of violation. 40 CFR 112.6 and 114.1 are based on authority 40 CFR 117 generally establishes the AGENCY: Environmental Protection in CWA section 311(j)(2), which, before reportable quantities for CWA Agency. its amendment by the Oil Pollution Act hazardous substances designated under ACTION: Final rule. of 1990 (OPA), limited civil penalties 40 CFR 116 for purposes of CWA assessed for violations of regulations section 311. 40 CFR 117.21 sets out the SUMMARY: The Environmental Protection issued under section 311(j) to ‘‘not more notification requirement for discharges Agency (EPA) is today removing from than $5,000 for each such violation.’’ of designated hazardous substances the Code of Federal Regulations (CFR) OPA repealed CWA section 311(j)(2) pursuant to CWA section 311(b)(5). 40 rules pertaining to the oil and hazardous and amended CWA section 311(b)(6) to CFR 117.22(b) provides that violation(s) substances discharge program provide that violators of CWA section of the notification requirement may promulgated under the Clean Water Act 311(j) may be assessed a Class I penalty result in a fine of not more than $10,000 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9647 or imprisonment for not more than one make it applicable only to violations of establishing any interpretation or year, or both. However, 40 CFR the discharge prohibition which guideline relating to the transportation, 117.22(b) is based on language in former occurred prior to August 18, 1990, the storage, discharge, release, emission, or CWA section 311(b)(5), which was date of enactment of the Oil Pollution disposal of a fat, oil or grease. EPA has amended by OPA. Section 4301 of OPA Act. 40 CFR 117.22(a); see 57 FR 52704 determined that no differentiation amended CWA section 311(b)(5) to (Nov. 4, 1992). At the present time, EPA between these classes of oil is necessary provide that any person convicted of is unaware of any on-going for the portions of this rule that relate violation of the notification requirement administrative penalty actions for to the discharge of oil (Part 114 and in CWA section 311(b)(5) be ‘‘fined in violations of the notification section 112.6). This rule imposes no accordance with title 18, United States requirements in CWA section 311(b)(5) substantive requirements; instead the Code, or imprisoned for not more than or the discharge prohibitions for rule merely deletes provisions of the oil 5 years, or both.’’ 33 U.S.C. 1321(b)(5). hazardous substances in CWA section pollution prevention program that are As a result of this change in the penalty 311(b)(3) which occurred prior to legally obsolete for the reasons stated provision enacted by OPA, EPA August 18, 1990. All violations of the above. amended section 117.22 by making it notification requirements and discharge V. Analyses under E.O. 12866, the applicable only to violations occurring prohibitions which have occurred or prior to August 18, 1990, the date of will occur since enactment of OPA will Unfunded Mandates Reform Act of enactment of the Oil Pollution Act. 40 be subject to the different penalty 1995, the Regulatory Flexibility Act and CFR 117.22(a); see 57 FR 52704 (Nov. 4, provisions contained in CWA sections the Paperwork Reduction Act 1992). 311(b)(6) and 311(b)(7), as amended by For the above reasons, this action is 40 CFR 117.22(c) provides that an OPA. Furthermore, CWA section 311, as not a ‘‘significant’’ regulatory action owner, operator or a person in charge of amended by OPA, itself provides all the within the meaning of E.O. 12866. It a vessel or facility that has discharged necessary legal authorities establishing also does not impose any Federal a designated hazardous substance penalties for the violation of section mandate on State, local or tribal exceeding the reportable quantity may 311(b)(5) notification requirements and governments or the private sector within be subject to a civil administrative section 311(b)(3) discharge prohibitions. the meaning of the Unfunded Mandates penalty assessment of up to $5,000 per EPA is therefore deleting 40 CFR section Reform Act of 1995. For the same violation. The regulation also states that 117.22 from the Code of Federal reasons, pursuant to the Regulatory the Agency may pursue a judicial civil Regulations. Flexibility Act, I certify that this action penalty action, seeking up to $50,000 would not have a significant economic III. Good Cause Exemption From per violation; where the discharge impact on a substantial number of small Notice-and-Comment Rulemaking resulted from willful negligence or entities. Finally, this action would not Procedures willful misconduct, the maximum impose any requirements under the judicial civil penalty is $250,000. 40 The Administrative Procedure Act Paperwork Reduction Act. CFR 117.22(c) is based on language in generally requires agencies to provide former CWA section 311(b)(6)(A), which prior notice and opportunity for public List of Subjects was amended by OPA. comment before issuing a final rule. 5 40 CFR Part 112 As indicated above, section 4301 of U.S.C. § 553(b). Rules are exempt from Environmental protection, Oil OPA repealed CWA section 311(b)(6) this requirement if the issuing agency pollution penalties, Reporting and and replaced it with a new penalty finds for good cause that notice and recordkeeping requirements. assessment framework. CWA section comment are unnecessary. 5 U.S.C. 311(b)(6) now provides that violators of § 553(b)(3)(B). 40 CFR Part 114 the prohibition against unauthorized EPA has determined that providing Administrative practice and discharges in section 311(b)(3) may be prior notice and opportunity for procedure, Oil pollution, Penalties. assessed a Class I penalty of up to comment on the deletion of these rules $10,000 per violation (up to a maximum from the CFR is unnecessary. As 40 CFR Part 117 assessment of $25,000) or a Class II discussed in Sections I and II, EPA is Hazardous substances, Penalties, penalty of up to $10,000 per day of unaware of any proceedings pending Reporting and recordkeeping violation (up to a maximum assessment under these rules. Withdrawing them requirements, Water pollution control. of $125,000). 33 U.S.C. 1321(b)(6)(B). will affect only the few, if any, future Dated: February 15, 1996. Section 4301 of OPA also added CWA proceedings that may be initiated for Elliott P. Laws, section 311(b)(7), which provides for the pre-OPA violations. judicial assessment of civil penalties for For the same reasons, EPA believes Assistant Administrator Office of Solid Waste violations of CWA section 311(b)(3) of there is good cause for making the and Emergency Response. up to ‘‘$25,000 per day of violation’’ or removal of these rules from the CFR For the reasons set out in the up to ‘‘$1,000 per barrel of oil or unit immediately effective. See 5 U.S.C. preamble, under the authority at 33 of reportable quantity of hazardous § 553(d). U.S.C. 1361(a), title 40, chapter I of the substances.’’ For violations of section Code of Federal Regulations is amended 311(b)(3) that are a result of gross IV. Differentiation between Classes of as follows: negligence or willful misconduct, the Oil violator now is subject to a civil penalty The Edible Oil Regulatory Reform PART 112Ð[AMENDED] of ‘‘not less than $100,000 and not more Act, Public Law 104–55, requires most 1. The authority citation for part 112 than $3,000 per barrel or oil or unit of federal agencies to differentiate between continues to read as follows: reportable quantity or hazardous and establish separate classes for (1) Authority: 33 U.S.C. 1321 and 1361; E.O. substance discharged.’’ animal fats and oils and greases, fish 12777 (October 18, 1991), 3 CFR, 1991 As a result of the changes in penalties and marine mammal oils, and oils of Comp., p. 351. for prohibited discharges of CWA vegetable origin and (2) other greases hazardous substances as enacted by the and oils, including petroleum, when § 112.6 [Removed] OPA, EPA amended section 117.22(c) to issuing or enforcing any regulation or 2. Section 112.6 is removed. 9648 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations

PART 114Ð[REMOVED] FOR FURTHER INFORMATION CONTACT: J. by adding Channel 228A and removing Bertron Withers, Jr., Mass Media Channel 223A at Barnesboro. 3. Part 114 is removed. Bureau, (202) 418–2180. Federal Communications Commission. PART 117Ð[AMENDED] SUPPLEMENTARY INFORMATION: This is a John A. Karousos, synopsis of the Commission’s Report Chief, Allocations Branch, Policy and Rules 4. The authority citation for part 117 and Order, MM Docket No. 87–433, Division, Mass Media Bureau. continues to read as follows: adopted February 16, 1996 and released [FR Doc. 96–5429 Filed 3–8–96; 8:45 am] Authority: Secs. 311 and 501(a), Federal March 4, 1996. The full text of this BILLING CODE 6712±01±F Water Pollution Control Act (33 U.S. C. 1251 Commission decision is available for et seq.), (‘‘the Act’’) and E.O. 11735 inspection and copying during normal superseded by E.O. 12777 56 FR 54757. business hours in the Commission’s 47 CFR Part 76 § 117.22 [Removed] Reference Center (Room 239), 1919 M Street, NW., Washington, DC 20554. The [CS Docket No. 96±40; FCC 96±84] 5. Section 117.22 is removed. complete text of this decision may also Telecommunications Act of 1996 [FR Doc. 96–5710 Filed 3–8–96; 8:45 am] be purchased from the Commission’s BILLING CODE 6560±50±P copy contractor, International AGENCY: Federal Communications Transcription Services, 2100 M Street, Commission. NW., Suite 140, Washington, DC 20037, ACTION: Interim rule. FEDERAL COMMUNICATIONS (202) 857–3800. SUMMARY: This Order establishes interim COMMISSION The Commission orders modification of the licenses of Station WMKX(FM), rules to implement Section 641 of the 47 CFR Part 73 Brookville, to specify operation on Communications Act, including Channel 288B1; of Station WPXZ-FM, establishing the hours of the day when [MM Docket No. 87±433; RM±5994 and RM± a significant number of children are 6181] Punxsutawney, to specify operation on Channel 281A; and of Station WQMU, likely to view sexually explicit adult programming or other indecent Radio Broadcasting Services; Indiana, to specify operation on programming on any channel of the Barnesboro, Brookville, Indiana, Channel 223A. Channel 288B1 can be service of a multichannel video Johnsonburg, Punxsutawney, PA allotted to Brookville in compliance with the Commission’s spacing programming distributor primarily AGENCY: Federal Communications requirements at coordinates North dedicated to sexually-oriented Commission. Latitude 41–09–36 and West Longitude programming if such programming is ACTION: Final rule. 79–04–54. Channel 277B1 can also be not fully blocked or fully scrambled. allotted to Brookville in compliance Section 505 of the Telecommunications SUMMARY: The Commission, at the with the Commission’s spacing Act directs the Commission to establish request of Strattan Broadcasting, requirements at coordinates North these hours. In this Order, the licensee of Station WMKX(FM), Latitude 41–02–12 and West Longitude Commission determines that the hours Channel 240A, Brookville, 79–06–06. Channel 263A can be allotted of 6 a.m. to 10 p.m. are the hours when Pennsylvania, grants Strattan’s rule to Johnsonburg in compliance with the such programming may not be shown if making petition (RM–5994) seeking the Commission’s spacing requirements at not fully scrambled or fully blocked. upgrade of its Class A channel in either a site located at coordinates North EFFECTIVE DATE: March 11, 1996. Brookville on non-adjacent Channel Latitude 41–29–24 and West Longtitude FOR FURTHER INFORMATION, CONTACT: 288B1. See Notice of Proposed Rule 78–40–36. With this action, the Meryl S. Icove, Cable Services Bureau, Making, 52 FR 39254 (October 21, proceeding is terminated. (202) 416–0800. 1987). The Commission dismisses the SUPPLEMENTARY INFORMATION: List of Subjects in 47 CFR Part 73 This is a counterproposal (RM–6181) of Renda synopsis of the Order in CS Docket No. Radio, Inc., licensee of Station WPXZ- Radio broadcasting. 96–40, FCC 96–84, adopted March 4, FM, Channel 288A, Punxsutawney, Part 73 of title 47 of the Code of 1996 and released March 5, 1996. The Pennsylvania. The Commission also complete text of this Order is available allots Channel 277B1 as an alternative Federal Regulations is amended as follows: for inspection and copying during equivalent channel at Brookville, as normal business hours in the FCC requested by Strattan in its comments. PART 73Ð[AMENDED] Reference Center (room 239), 1919 M To accommodate these allotments to Street, NW., Washington, DC, and also Brookville, we also order four channel 1. The authority citation for part 73 may be purchased from the substitutions: Channel 281A in lieu of continues to read as follows: Commission’s copy contractor, Channel 288A at Punxsutawney, Authority: Secs 303, 48 Stat., as amended, International Transcription Services, Pennsylvania, and the modification of 1082; 47 U.S.C. 154, 303. Inc. (‘‘ITS Inc.’’) at (202) 587–3800, 2100 the authorization of Station WPXZ-FM M Street, NW., Suite 140, Washington, accordingly; Channel 263A in lieu of § 73.202 [Amended] DC 20017. Channel 277A at Johnsonburg, 2. Section 73.202(b), the Table of FM Pennsylvania; Channel 223A in lieu of Allotments under Pennsylvania, is Synopsis of Order Channel 276A at Indiana, Pennsylvania; amended by adding Channel 288B1 and 1. On February 8, 1996, the and Channel 228A for Channel 223A at Channel 277B1 and removing Channel Telecommunications Act of 1996 (‘‘1996 Barnesboro, Pennsylvania. See 240A at Brookville; by adding Channel Act’’), Pub. L. No. 104–104, 110 Stat. 56 Supplemental Information, infra. 281A and removing Channel 288A at (1996), was enacted. Section 505 of the DATES: Effective April 18, 1996. The Punxsutawney; by adding Channel 1996 Act amends the Communications window period for filing applications 263A and removing Channel 277A at Act by adding a new Section 641, will open on April 18, 1996 and close Johnsonburg; adding Channel 223A and entitled ‘‘Scrambling of Sexually on May 20, 1996. removing Channel 276A at Indiana; and Explicit Adult Video Service Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9649

Programming.’’ Section 641(a) requires impracticable to engage in notice and we interpret the provision as not that multichannel video programming comment procedures. requiring the scrambling of distributors (‘‘MVPDs’’) fully scramble 4. This interim rule is based on a programming that is not indecent even or fully block sexually explicit adult closely analogous, existing Commission if provided on a channel primarily programming or other indecent rule. The Commission’s current rule dedicated to sexually-oriented programming on any channel of its regarding broadcast indecency prohibits programming. service primarily dedicated to sexually- the licensee of a radio or television 6. To the extent that compliance with oriented programming so that a broadcast station from broadcasting Section 641 conflicts with any nonsubscriber does not receive such between 6 a.m. and 10 p.m. any material Commission rules requiring cable programming. Section 641(b) provides which is indecent. 47 CFR 73.3999. This operators to give advance written notice that, until the MVPD fully scrambles rule is based on an extensive to subscribers or local franchising such programming, it may not provide administrative record and judicial authorities of certain changes in their such programming during the hours of review of the regulation of indecent service, those rules are waived. See 47 the day when a significant number of programming. The United States Court CFR §§ 76.309(c)(3)(i)(B), 76.964. To the children are likely to view such of Appeals for the District of Columbia extent that compliance with Section 641 programming. Section 641(b) further Circuit upheld a 10 p.m. to 6 a.m. safe conflicts with any state or local notice requires that the Commission determine harbor in Action for Children’s requirements, those requirements are those hours. Section 641(c) also Television v. FCC, and the United States preempted by Section 641 itself, which provides a definition of ‘‘scramble:’’ ‘‘to Supreme Court denied certiorari. 58 requires that MVPDs make the rearrange the content of the signal of the F.3d 654 (D.C. Cir. 1995) (en banc), cert. programming changes within 30 days of programming so that the programming denied, 64 USLW 3465 (Jan. 8, 1996). the Section’s enactment. Cable operators cannot be viewed or heard in an We are aware of no relevant differences should, however, give notice as soon as understandable manner.’’ These here that would justify a different is reasonably practicable. We provisions take effect 30 days after the interim rule. Accordingly, based upon understand that in some instances such date of enactment of the 1996 Act, i.e., that closely related proceeding, we notice may not be given until after the March 9, 1996. In this Order the adopt an interim rule requiring that, change has been made. Commission adopts a rule incorporating until an MVPD complies with the Ordering Clauses Section 641(a). The Commission also scrambling/blocking requirement in establishes an interim rule new Section 641(a), the MVPD may not 7. It is ordered that, pursuant to implementing Section 641(b), providing provide sexually explicit adult Sections 4(i) and 641 of the that the programming described in programming or other programming that Communications Act of 1934, as subsection (a) may not be provided is indecent on any channel of its service amended, 47 U.S.C. 154(i), and Section between the hours of 6 a.m. and 10 p.m. primarily dedicated to sexually-oriented 505 of the Telecommunications Act of if not fully scrambled or fully blocked. programming between the hours of 6 1996, that the Commission’s rules ARE The NPRM adopted with this Order on a.m. and 10 p.m. AMENDED as set forth below. These 5. We define ‘‘indecent’’ programming March 4, 1996, requests comment on rules are effective upon publication in here on an interim basis the same as in whether the interim rule should be the Federal Register. We find good other video programming contexts: any adopted as a final rule. Finally, the cause for making these rules effective programming that describes or depicts NPRM requests comment on other upon publication in the Federal sexual or excretory activities or organs issues regarding implementation and Register because Section 641 becomes in a patently offensive manner as enforcement of these rules. effective 30 days after enactment of the measured by contemporary community Telecommunications Act of 1996. 2. We herein establish a rule standards for the cable or other MVPD incorporating the self-effectuating 8. It is further ordered that 47 CFR medium. See Infinity Broadcasting 76.309(c)(3)(i)(B) IS WAIVED to the language of Section 641(a). We are Corporation of Pennsylvania, 2 FCC Rcd adding this rule without providing prior extent indicated herein. 2705 (1987); 47 CFR §§ 76.701(g). We 9. It is further ordered that 47 CFR public notice and comment because the believe it is clear that the term ‘‘sexually rule simply incorporates a provision of § 76.964 IS WAIVED to the extent explicit adult programming’’ in Section indicated herein. the 1996 Act. The Commission’s action 641(a) is merely a subset of the term involves no discretion. Accordingly, ‘‘programming that is indecent.’’ To the Lists of Subjects in 47 CFR Part 76 notice and comment would serve no extent that this language could be Cable television. purpose and is thus unnecessary, and viewed as ambiguous, we interpret it to this action falls within the ‘‘good cause’’ include only indecent programming. As Amendatory Text exception of the Administrative to the applicability of Section 641(a) Part 76 of Title 47 of the Code of Procedure Act (‘‘APA’’). See 5 U.S.C. only to channels ‘‘primarily dedicated Federal Regulations is amended to read 553(b)(B). to sexually-oriented programming,’’ we as follows: 3. We establish an interim rule believe the statute is clear regarding implementing Section 641(b) regarding what channels Section 641(a) applies to, PART 76Ð[AMENDED] the hours during which MVPDs may not but unless and until we adopt a provide sexually explicit adult definition of that term we will rely on 1. The authority citation of Part 76 programming or other indecent the good faith judgment of MVPDs continues to read as follows: programming on any channel primarily regarding its definition. We note that Authority: Secs. 2, 3, 4, 301, 303, 307, 308, dedicated to sexually-oriented Section 641 only requires that MVPDs 309, 48 Stat. as amended, 1064, 1065, 1066, programming if it is not fully scrambled fully scramble or otherwise fully block 1081, 1082, 1083, 1084, 1085, 1101; 47 U.S.C. or fully blocked. We find that good the video and audio portion of channels Secs. 152, 153, 154, 301, 303, 307, 308, 309, cause exists to establish an interim rule primarily dedicated to sexually-oriented 532, 535, 542, 543, 552 as amended, 106 Stat. without notice and comment because programming ‘‘[i]n providing sexually 1460. Section 641 takes effect 30 days after explicit adult programming or other 2. A new § 76.227 is added to Subpart enactment of the 1996 Act, making it programming that is indecent.’’ Thus, G to read as follows: 9650 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations

§ 76.227 Blocking of indecent sexually- EFFECTIVE DATE: March 11, 1996. or all of the local share required for oriented programming channels. FOR FURTHER INFORMATION CONTACT: capital projects under 49 U.S.C. §§ 5311 (a) In providing sexually explicit Nancy Zaczek, Attorney-Advisor, Office and 5336, thereby increasing the adult programming or other of the Chief Counsel, (202) 366–4011. proportion of Federal money used to programming that is indecent on any pay for a project, which Part 671 called channel of its service primarily SUPPLEMENTARY INFORMATION: the ‘‘increased Federal share.’’ In short, dedicated to sexually-oriented Introduction in fiscal years 1992 and 1993 a recipient programming, a multichannel video could have funded a project’s costs On August 11, 1993, FTA published programming distributor shall fully using only Federal money. an Interim Final Rule announcing a scramble or otherwise fully block the The rule specified the circumstances temporary change in how it finances video and audio portion of such channel under which FTA would grant a waiver, capital projects for certain FTA-funded so that one not a subscriber to such described the application process, and programs, specifically allowing for a channel or programming does not detailed procedures for the repayment ‘‘waiver’’ of the local match receive it. of the ‘‘increased Federal share.’’ The requirements under two FTA-funded (b) Until a multichannel video waiver applied only to funds obligated programs. 58 FR 42690. The underlying programming distributor complies with by FTA and drawn down by the statutory authority for that policy the requirement set forth in paragraph recipient before October 1, 1993. change has expired, thus prompting (a) of this section, the multichannel FTA to remove 49 CFR 671 from the Analysis of the Comment video programming distributor shall not Code of Federal Regulations. The provide the programming referred to in FTA received only one comment to Federal Highway Administration paragraph (a) of this section between the the interim final rule. That comment, (FHWA) published a final rule on hours of 6 a.m. and 10 p.m. from a State Department of (c) Scramble means to rearrange the February 2, 1993 at 58 FR 6713, Transportation (DOT), raised concerns content of the signal of the programming subsequently codified at 23 CFR 140, about how the ‘‘increased Federal so that the programming cannot be waiving the State matching share’’ would be repaid by a recipient. viewed or heard in an understandable requirements to fund certain kinds of The ‘‘increased Federal share’’ equals manner. construction projects under the Federal- the amount of the local share waived by (d) Sexually explicit adult aid highway program. Because FTA and FTA. programming or other programming that FHWA were authorized by the same The rule specified that recipients is indecent means any programming statute to waive the local or State must repay the ‘‘increased Federal that describes or depicts sexual or matching requirements, FTA and FHWA share’’ before March 31, 1994. Should a excretory activities or organs in a adopted similar approaches to recipient fail to meet this deadline, the patently offensive manner as measured implementing the temporary waiver rule provided that FTA would deduct by contemporary community standards program. fifty percent of the amount waived in fiscal year 1995 and fifty percent in for the cable or other multichannel The Temporary Waiver Program video programming distribution fiscal year 1996 from the recipient’s As explained in the interim final rule, medium. apportionment. If, however, the funds under section 9 of the Federal Transit were transferred from the Surface Federal Communications Commission. Act, as amended (FT Act) now codified Transportation Program or the William F. Caton, at 49 U.S.C. § 5336 and called Congestion Mitigation and Air Quality Acting Secretary. ‘‘urbanized area formula program,’’ and program to formula programs for [FR Doc. 96–5869 Filed 3–8–96; 8:45 am] under section 18 of the FT Act, now urbanized or non-urbanized areas and BILLING CODE 6712±01±P codified at 49 U.S.C. § 5311 and called the recipient did not repay those funds ‘‘non-urbanized area formula program,’’ before March 31, 1994, the Federal FTA and a recipient of its funds share Highway Administration (FHWA) DEPARTMENT OF TRANSPORTATION the costs of financing local mass transit would deduct fifty percent of the capital projects. Specifically, FTA pays amount waived from the originating Federal Transit Administration eighty percent of a capital project’s apportionment under the appropriate eligible costs (the Federal share), and a highway program in FY 1995 and the 49 CFR Part 671 recipient pays the remaining twenty remaining portion in FY 1996. [Docket 93±A] percent (the local match or local share). The State DOT objected to the latter To ensure the sufficiency of local alternative and recommended that State RIN 2132±AA49 financing for a project, 49 U.S.C. § 5307 DOTs be given a formal role in requires a recipient to certify that it can approving any waiver requested by a Temporary Local Match Waiver; pay its share of the project’s cost. A recipient, and that any waiver of the Removal similar requirement applies to grants local share for a transit project be repaid AGENCY: Federal Transit Administration, made under FTA’s ‘‘non-urbanized area from a recipient’s transit apportionment DOT. formula program.’’ regardless of the original source of the ACTION: Final Rule. During fiscal years 1992 and 1993, funding. however, an alternative approach to This State DOT was the only SUMMARY: Because the supporting these Federal and local share commenter who raised this particular statutory authority has expired, the requirements was available. concern and therefore FTA concluded Federal Transit Administration (FTA) is Specifically, the Dire Emergency that virtually all FTA recipients and removing the Temporary Local Match Supplemental Appropriations Act, State DOTs did not see this particular Waiver for sections 9 and 18 from the 1992, P.L. 102–302, and the Department repayment provision as burdensome or Code of Federal Regulations. FTA made of Transportation Appropriations Act, objectionable. Moreover, the Acts did this determination as part of the 1993, P.L. 102–388, (the Acts) permitted not give State DOTs a role in approving President’s ‘‘reinventing government’’ FTA, under limited circumstances, to waiver requests. Consequently, FTA did initiative. waive in fiscal years 1992 and 1993 part not change this particular provision. Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9651

Regulatory Analysis matter of prioritizing among different species programs, including listing of This is not a significant rule under types of listing activities. While the endangered and threatened species, has Executive Order 12866 or under the backlog exists, and in order to focus been provided through a series of Department’s Regulatory Policies and conservation benefits on those species continuing resolutions, each of which Procedures. It does not impose costs on in greatest need, the Service believes has maintained in force the moratorium regulated parties; it merely removes a that processing the outstanding against issuing final listings or critical proposed listings should receive higher habitat designations. The continuing Part that has become obsolete and priority than other actions authorized by resolutions also severely reduced or whose underlying statutory authority section 4 (such as petition findings, new eliminated the funding available for the has lapsed. There are not sufficient proposed listings, and critical habitat Service’s listing program. Consequently, Federalism implications to warrant the determinations). the Service reassigned listing program preparation of a Federalism Assessment. personnel to other duties. The net effect The Department certifies that this rule DATES: This guidance takes effect March of these legislative and administrative will not have a significant economic 11, 1996. Comments on this guidance actions is that the Service’s listing impact on a substantial number of small will be accepted until April 10, 1996. program has been essentially shut down entities. This interim guidance will remain in effect until September 30, 1996, unless since October 1995, and will remain so List of Subjects in 49 CFR Part 671 extended by further notice. until adequate funding is restored. The moratorium and severe funding Grant programs-transportation, Mass ADDRESSES: Comments on this interim restrictions have created problems that Transportation. guidance should be addressed to the require additional guidance. Accordingly, for the reasons set forth Chief, Division of Endangered Species, U.S. Fish and Wildlife Service, 1849 C When adequate appropriations are above, and under the Authority 49 provided by the Congress for the U.S.C. 5334 (b)(2), part 671 is hereby Street NW., Mailstop ARLSQ–452, Washington, DC 20240. administration of a listing program and removed. when the listing program is no longer FOR FURTHER INFORMATION CONTACT: E. restricted by moratoria or similar Issued: March 5, 1996. LaVerne Smith, Chief, Division of conditions, the Service will face the Gordon J. Linton, Endangered Species, U.S. Fish and considerable task of restaffing its listing Administrator. Wildlife Service, 703–358–2171 (see program and allocating the available [FR Doc. 96–5670 Filed 3–8–96; 8:45 am] ADDRESSES section). resources to the following listing BILLING CODE 4910±57±P SUPPLEMENTARY INFORMATION: activities that have accrued significant Background backlogs. First, the Service has issued proposed listings for 243 species, which DEPARTMENT OF THE INTERIOR The Service adopted guidelines on require final decisions. Second, September 21, 1983 (48 FR 43098– Fish and Wildlife Service although the moratorium imposed by 43105) that govern the assignment of Pub. L. 104–6 does not specifically priorities to species under consideration 50 CFR Part 17 extend to petition processing or the for listing as endangered or threatened development of new proposed listings, Endangered and Threatened Wildlife under section 4 of the Endangered the extremely limited funding available and Plants; Interim Listing Priority Species Act of 1973, as amended (16 to the Service for listing activities has Guidance U.S.C. 1531 et seq.). The Service generally precluded these actions since adopted those guidelines to establish a October 1, 1995. However, during this AGENCY: Fish and Wildlife Service, rational system for allocating available period the Service has continued to Interior. appropriations to the highest priority receive new petitions and now has a ACTION: Notice of interim listing priority species when adding species to the lists backlog of petitions that request the guidance. of endangered or threatened wildlife listing or delisting of 41 species under and plants or reclassifying threatened section 4(b)(3) of the Act. Third, the SUMMARY: The U.S. Fish and Wildlife species to endangered status. The Service is required by numerous court Service (Service) adopts interim system places greatest importance on orders or settlement agreements to guidance for assigning relative priorities the immediacy and magnitude of process a variety of actions under to listing actions conducted under threats, but also factors in the level of section 4 of the Act. Fourth, the Service section 4 of the Endangered Species Act taxonomic distinctiveness by assigning also needs to make expeditious progress (Act). Congress enacted a moratorium priority in descending order to on determining the conservation status on final listings and critical habitat monotypic genera, full species, and of the 182 species designated by the designations in April 1995 which, subspecies (or equivalently, distinct Service as candidates for listing in the combined with severe funding population segments of vertebrates). recently published Candidate Notice of constraints, essentially shut down the The enactment of Public Law 104–6 Review (61 FR 7596; February 28, 1996). Service’s listing program beginning in in April, 1995 rescinded $1.5 million These backlogs and court orders October 1995. During this shutdown, a from the Service’s budget for carrying illustrate the need for program-wide large backlog of listing actions, out listing activities through the priorities to guide the allocation of particularly unresolved proposed remainder of Fiscal Year 1995. Public resources once the listing program is listings, is accruing. When the Law 104–6 also contained a prohibition revived. For the above reasons, good moratorium is lifted and adequate on the expenditure of the remaining cause exists to make this guidance funding is restored to operate a listing appropriated funds for final effective immediately. program, the Service will need to act determinations to list species or Section 4(b)(1) of the Act requires the expeditiously to resolve the status of designate critical habitat which, in Service to use the ‘‘best available outstanding proposed listings. This effect, placed a moratorium on those scientific and commercial information’’ guidance supplements, but does not activities. to determine those species in need of replace, the current listing priority Since the end of Fiscal Year 1995, the Act’s protections. It has been long- guidelines, which are silent on the funding for the Service’s endangered standing Service policy that the order in 9652 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations which species should be processed for section 4 of the Act. The various types The Service will conduct a listing is based primarily on the of actions within each tier (such as new preliminary review of any petition to immediacy and magnitude of the threats proposed listings, administrative list a species or change a threatened they face. Given the large backlogs of petition findings, etc.) will be accorded species to endangered status to proposed species, petitions, and roughly equal priority, but the 1983 determine if an emergency situation candidate species awaiting proposal, it listing priority guidelines should be exists or if the species would probably will be extremely important for the used as applicable. The Service be assigned a high listing priority upon Service to focus its efforts on actions emphasizes that this guidance is completion of a status review. If the that will provide the greatest effective until September 30, 1996 initial screening indicates an emergency conservation benefits to imperiled (unless extended by future notice) and situation the action will be elevated to species in the most expeditious manner. the agency fully anticipates returning to Tier 1. If the initial screening indicates The Service will continue to base a more balanced implementation of the a species that probably faces high- decisions regarding the order in which Act’s listing responsibilities to magnitude threats, processing of the species will be proposed or listed on the concurrently process petition findings petition will be assigned to Tier 3. 1983 listing priority guidelines. These and proposed and final listings and Tier 4—Processing new Proposed Rules decisions will be implemented by the critical habitat determinations, after Regional Office designated with lead for Species Facing Moderate- or Low- funding has been restored and the Magnitude Threats; Processing responsibility for the particular species. backlogs reduced. The Service allocates its listing Administrative Findings on Petitions not appropriation among the Regional Tier 1—Emergency Listing Actions Assigned to Tiers 1 or 3; and Processing Offices based primarily on the number Final Decisions on Proposed Delistings Once the moratorium is lifted, the or Reclassifications of proposed and candidate species for Service will immediately process Processing of new proposed rules for which the Region has lead emergency listings for species that face species facing moderate- or low- responsibility. This ensures that those an imminent risk of extinction under magnitude threats would provide less areas of the country with the largest the emergency listing provisions of conservation benefit than actions percentage of known imperiled biota section 4(b)(7) of the Act and will described in Tiers 1 through 3, so the will receive a correspondingly high prepare a proposed listing immediately Service is assigning this activity to Tier level of listing resources. The 1983 upon learning of the need to emergency 4. listing priority guidelines and this list. This provision will also apply to guidance will be applied at the Administrative findings for petitions any petitioned species for which the that are not assigned to Tiers 1 or 3 after National, Regional, and local levels. Service deems an emergency situation While funding for listing activities is initial screening will be processed as a exists. allocated based on expected workload, Tier 4 priority but only to the extent that the types of activities composing each Tier 2—Processing Final Decisions on such action does not substantially deter Region’s listing workload vary greatly. Proposed Listings (Applies After the from the Service’s ability to deal with As a result, Regions with few Moratorium is Lifted) the backlog of proposed listings. outstanding proposed listings may be Processing of final decisions for able to process new proposed listings or In issuing the outstanding proposed previously proposed delistings and petition findings before all of the listings, the Service deemed that the reclassifications provides relief from outstanding proposed listings have been vast majority of the proposed species unnecessary regulations. The Service processed in Regions with large faced high-magnitude threats. The believes that providing such regulatory numbers of outstanding proposed Service believes that focusing efforts on relief is an appropriate Tier 4 activity. making final decisions relative to these listings. Tier 5— Processing Critical Habitat To address the biological, budgetary, proposed species will provide maximum conservation benefits to those Determinations and Processing new and administrative issues noted above, Proposed Delistings or Reclassifications the Service therefore adopts the species that are in greatest need of the following interim listing priority Act’s protections. Designation of critical habitat guidance. Tier 3—Processing New Proposed consumes large amounts of the Service’s listing appropriation and generally Interim Listing Priority Guidance Listings for Species Facing High- Magnitude Threats (Listing Priority provides only limited conservation The Headquarters Office will Numbers 1 through 6) and Initial benefits beyond those achieved when a promptly process any draft petition Screening of Petitions species is listed as endangered or findings, draft proposed rules or final threatened. Because critical habitat rules (once the moratorium is lifted) to While the backlog of candidate protections are restricted to Federal add species to the lists, draft proposed species has been reduced substantially actions, situations where designating or final critical habitat determinations since 1992, the Service has determined critical habitat provides additional (once the moratorium is lifted), or draft that 182 species warrant issuance of protection beyond the protections withdrawal notices that could not be proposed listings. The Act directs the included in section 7 are rare. It is processed because of the funding Service to make ‘‘expeditious progress’’ critical during this interim period to constraints or the moratorium. This will in adding new species to the lists and maximize the conservation benefit of only apply to draft documents already thereby necessitates steady work in every dollar spent in the listing activity. approved by the Field and Regional reducing the number of outstanding The small amount of additional Offices but for which final action could candidate species. Issuance of new protection that is gained by designating not be completed per guidance issued proposed listings is the first formal step critical habitat for species that are by the Director. in the regulatory process for listing a already on the lists is greatly The following sections describe a species. Many candidate species face outweighed by providing the multi-tiered approach that assigns high-magnitude threats and the need to protections included in sections 7 and relative priorities, on a descending start the regulatory process justifies 9 to newly-listed species. Therefore, the basis, to actions to be carried out under placement of this activity in Tier 3. Service will place higher priority on Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9653 addressing species that presently have for Tier 2 actions. Proposed listings for under active litigation. To do so would no protection under the Act rather than species facing high-magnitude threats let litigants, rather than expert devoting limited resources to the that can be quickly completed (based on biological judgments, control the setting expensive process of designating critical factors such as few public comments to of listing priorities. The Regional Office habitat for species already protected by address or final decisions that were with responsibility for processing such the Act. almost complete prior to the packages will need to determine the Issuing new proposed delistings and moratorium) will have higher priority relative priority of such cases based downlistings can provide regulatory than proposed rules for species with upon this guidance and the 1983 listing relief but will be accorded Tier 5 equivalent listing priorities that still priority guidelines and furnish priority due to limited listing resources require extensive work to complete. supporting documentation that can be and the fact that such actions will not Given species with equivalent listing submitted to the relevant Court to become effective in the immediate priorities and the factors previously indicate where such species fall in the future. discussed being equal, proposed listings overall priority scheme. with the oldest dates of issue should be Setting Priorities Within Tier 2 Public Comments Solicited processed first. Most of the outstanding proposed The Service intends that any action listings deal with species that face high- Notifying the Courts on Matters in Litigation resulting from this guidance be as magnitude threats, such that additional accurate and as effective as possible. guidance is needed to clarify the relative The Service will assess the status and Therefore, any comments or suggestions priorities within Tier 2. Proposed rules the relative priority of all section 4 from the public, other concerned dealing with taxa deemed to face petition and rule-making activities that governmental agencies, the scientific imminent, high-magnitude threats will are the subject of active litigation using community, industry, commercial trade have the highest priority within Tier 2. this interim guidance and the 1983 entities, or any other interested party The Service will promptly review the listing priority guidelines. The Service, concerning any aspect of this guidance backlog of 243 proposed species and through the Office of the Solicitor, will are hereby solicited. While the guidance each Region will reevaluate the then notify the Justice Department of its will be used immediately, the Service immediacy and magnitude of threats priority determination and request that will take into consideration the facing all species that have been appropriate relief be requested from comments and any additional proposed for listing and revise the each district court to allow those species information received. Such species’ listing priority assignments with the highest biological priority to be communications may lead to the accordingly. Those with the highest addressed first. The Service will provide adoption of additional or revised listing priority will be processed first. periodic updates to each district court guidance that differs from this interim Proposed listings that cover multiple on the progress that it is making in guidance. species facing high-magnitude threats addressing high priority proposed and will have priority over single-species candidate species. However, to the Authority proposed rules unless the Service has extent that these efforts to uphold the The authority for this notice is the reason to believe that the single-species Service’s interim priority guidance and Endangered Species Act of 1973, as proposal should be processed to avoid the 1983 listing priority guidelines do amended, 16 U.S.C. 1531 et seq. possible extinction. not receive deference in the Courts, the Dated: March 1, 1996. Due to unresolved questions or to the Service will need to comply with court John G. Rogers, length of time since proposal, the orders despite any conservation Acting Director, U.S. Fish and Wildlife Service may determine that additional disruption that may result. Service. public comment or hearings are The Service will not elevate the [FR Doc. 96–5646 Filed 3–8–96; 8:45 am] necessary before issuing a final decision priority of proposed listings for species BILLING CODE 4310±55±P 9654

Proposed Rules Federal Register Vol. 61, No. 48

Monday, March 11, 1996

This section of the FEDERAL REGISTER FOR FURTHER INFORMATION CONTACT: Mr. operating budget. A general and locality contains notices to the public of the proposed James R. Rodeheaver, Branch Chief, salary increase for Federal employees, issuance of rules and regulations. The Processed Products Branch, Fruit and ranging from 3.09 to 6.25 percent purpose of these notices is to give interested Vegetable Division, Agricultural depending on locality, effective January persons an opportunity to participate in the Marketing Service, U.S. Department of 1995, has materially affected program rule making prior to the adoption of the final rules. Agriculture, P.O. Box 96456, Room 0709 costs. Another general and locality South Building, Washington, D.C. salary increase, ranging from 2.39 to 20090–6456, Telephone (202) 720–4693. 2.87 percent depending upon locality DEPARTMENT OF AGRICULTURE SUPPLEMENTARY INFORMATION: This (amounting to approximately $625,000), proposed rule has been determined to was effective January 1996; further Agricultural Marketing Service be not significant for purposes of standardization program costs, Executive Order 12866, and therefore previously funded by appropriated 7 CFR Part 52 has not been reviewed by the Office of funds, must be paid for by user fees. Management and Budget. While a concerted effort to cut costs [FV±96±326] This proposed rule has been reviewed resulted in overhead savings of under Executive Order 12778, Civil $623,926 in FY95 over FY94, the last fee Processed Fruits and Vegetables, Justice Reform. This action is not increase in August 1994 did not result Processed Products Thereof, and intended to have retroactive effect. This in collection of enough revenue to cover Certain Other Processed Food rule would not preempt any State or all these increases and still maintain an Products Regulations Governing local laws, regulations, or policies, adequate reserve balance (four months Inspection and Certification unless they present an irreconcilable of costs) called for by Agency policy and prudent financial management. AGENCY : conflict with this rule. There are no Agricultural Marketing Currently the Processed Products Service, USDA. administrative procedures which must be exhausted prior to any judicial Branch (PPB) trust fund reserve balance ACTION : Proposed rule. challenge to the provisions of this rule. for all programs is approximately $1.480 mil. under the desirable level of SUMMARY: This document would revise The Administrator, Agricultural Marketing Service (AMS), has certified $11.031. Further action is necessary to the Regulations Governing Inspection meet rising costs and maintain adequate and Certification of Processed Fruits that this action will not have a significant economic impact on a reserve balances. This action will assist and Vegetables and Certain Other in moving the PPB trust fund toward a Products 1 by increasing the lot substantial number of small entities, as defined in the Regulatory Flexibility more adequate level and will result in inspection and less than year round fees an estimated $368,000 in additional charged for the inspection of processed Act, P.L. 96–354 (5 U.S.C. 601). The proposed rule reflects certain fee revenues. Projected FY96 revenues for fruits and vegetables and certain other the lot inspection and less than year products. These revisions are necessary increases needed to recover the costs of services rendered in accordance with round inspection programs are $8.291 in order to recover, as nearly as mil. with costs projected at $8.194 and practicable, the costs of performing the Agricultural Marketing Act (AMA) of 1946. The inspection, grading and a reserve of $2.682. inspection services under the Based on the Agency’s analysis of Agricultural Marketing Act of 1946. certification program for processed fruits and vegetables and related increased costs since 1994, AMS DATES: Comments must be received on proposes to increase the fees relating to or before April 10, 1996. products is voluntary. The AMA authorizes voluntary such services as shown in the following ADDRESSES: Interested persons are official inspection, grading, and table. The table compares current fees invited to submit written comments certification on a user-fee basis, of and charges with proposed fees and concerning this proposal. Comments processed food products including charges for processed fruit and vegetable must be sent in duplicate to the Office processed fruits, vegetables, and inspection as found in 7 CFR 52.42– of the Branch Chief, Processed Products processed products made from them. 52.51. For inspection services charged Branch, Fruit and Vegetable Division, The AMA provides that reasonable fees under section 52.42, overtime and Agricultural Marketing Service, U.S. be collected from the user of the holiday work would continue to be Department of Agriculture, P.O. Box program services to cover as nearly as charged as provided in that section. For 96456, Room 0709 South Building, practicable the costs of services inspection services charged on a Washington, D.C. 20090–6456. rendered. This proposal would amend contract basis under section 52.51 Comments should note the date and the schedule for fees and charges for lot overtime work would also continue to page number of this issue of the Federal inspection and less than year round be charged as provided in that section. Register and will be made available for inspection services rendered to the Unless otherwise provided for by public inspection in the office of the processed fruit and vegetable industry regulation or written agreement between Branch Chief during regular business to reflect the costs currently associated the applicant and the Administrator, the hours. with the program. charges in the schedule of fees as found AMS regularly reviews these in section 52.42 are: 1 May include the following: Honey; molasses, programs to determine if fees are except for stockfeed; nuts and nut products, except Current Proposed oil; sugar (cane, beet, and maple); sirups (blended), adequate. Employee salary and benefits sirups, except from grain; tea, cocoa, coffee, spices, are major program costs that account for $39.50/hr...... $41.00/hr. condiments. approximately 85 percent of the total Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Proposed Rules 9655

Charges for travel and other expenses § 52.51 [Amended] DEPARTMENT OF TRANSPORTATION as found in section 52.50: 4. In § 52.51, paragraph (c)(2) is Federal Aviation Administration Current Proposed amended by removing the figure ‘‘$39.50’’ and adding in its place 14 CFR Part 71 $39.50/hr...... $41.00/hr. ‘‘$42.00’’ and paragraph (d)(1) is amended by removing the figure [Airspace Docket No. 95±AWP±13] Charges for year-round in-plant ‘‘$39.50’’ and adding the figure Proposed Establishment of Class E inspection services on a contract basis ‘‘$42.00’’ in its place. Airspace; Hollister, CA as found in section 52.51 (c): Dated: February 29, 1996. AGENCY: Federal Aviation (2) For personnel assigned on less David N. Lewis, Administration (FAA), DOT. than a year-round basis: Acting Administrator. ACTION: Supplemental notice of Current Proposed [FR Doc. 96–5715 Filed 3–8–96; 8:45 am] proposed rulemaking. BILLING CODE 3410±02±P Each inspector: SUMMARY: This supplemental notice $39.50/hr...... $42.00/hr. amends a previous proposal to establish In-plant sampler: Food Safety and Inspection Service a Class E airspace area at Hollister, CA. $22.00/hr...... $22.00/hr. The development of a Global 9 CFR Parts 301, 304, 305, 306, 307, Positioning System (GPS) Standard Charges for less than year-round in- 318, 325, and 381 Instrument Approach Procedure (SIAP) plant inspection services (four or more to Runway (RWY) 31 has made this consecutive 40 hour weeks) on a [Docket No. 95±008E] proposal necessary. The intended effect contract basis as found in section 52.51 of this supplemental notice is to provide (d): FSIS Agenda for Change: Regulatory additional controlled airspace for Review; Reopening of Comment Instrument Flight Rules (IFR) operations Current Proposed Period at Hollister Municipal Airport, Hollister, CA. (1) Each inspector: DATES $39.50/hr...... $42.00/hr. AGENCY: Food Safety and Inspection : Comments must be received on (2) In-plant sampler: Service, USDA. or before April 18, 1996. $22.00/hr...... $22.00/hr. ADDRESSES: Send comments on the ACTION: Reopening of comment period. proposal in triplicate to: Federal List of Subjects in 7 CFR Part 52 Aviation Administration, Attn: SUMMARY: The Food Safety and Manager, System Management Branch, Food grades and standards, Food Inspection Service (FSIS) is reopening AWP–530, Docket No. 95–AWP–13, Air labeling, Frozen foods, Fruit juices, the comment period for the advance Traffic Division, P.O. Box 92007, Fruits, Reporting and recordkeeping notice of proposed rulemaking, ‘‘FSIS Worldway Postal Center, Los Angeles, requirements, Vegetables. Agenda for Change: Regulatory Review’’ California 90009. For the reasons set forth in the (60 FR 67469), published in the Federal The official docket may be examined preamble, 7 CFR Part 52 is proposed to Register on December 29, 1995, in in the Office of the Assistant Chief be amended as follows: response to a request for additional time Counsel, Western Pacific Region, to submit comments. The comment Federal Aviation Administration, Room PART 52ÐREGULATIONS period will reopen for 60 days. 6007, 15000 Aviation Boulevard, GOVERNING INSPECTION AND Lawndale, California 90261. DATES: Comments must be received on CERTIFICATION OF PROCESSED An informal docket may also be or before May 10, 1996. FRUITS AND VEGETABLES, examined during normal business at the PROCESSED PRODUCTS THEREOF, ADDRESSES: Send an original and two Office of the Manager, System AND CERTAIN OTHER PROCESSED copies of written comments to: FSIS Management Branch, Air Traffic FOOD PRODUCTS 1 Docket Clerk, DOCKET #95–008A, Division at the above address. Room 4352, South Agriculture Building, FOR FURTHER INFORMATION CONTACT: 1. The authority citation for 7 CFR Food Safety and Inspection Service, William Buck, Airspace Specialist, Part 52 continues to read as follows: U.S. Department of Agriculture, System Management Branch, AWP–530, Authority: 7 U.S.C. 1621–1627. Washington, DC 20250–3700. Air Traffic Division, Western-Pacific Region, Federal Aviation § 52.42 [Amended] FOR FURTHER INFORMATION CONTACT: Dr. Administration, 15000 Aviation 2. In § 52.42, the figure ‘‘$39.50’’ is Paula Cohen, Director, Regulations Boulevard, Lawndale, California 90261, removed and the figure ‘‘$41.00’’ is Development, at (202) 720–7164. telephone (310) 725–6556. added in its place. Done at Washington, DC on March 5, 1996. SUPPLEMENTARY INFORMATION: Michael R. Taylor, § 52.50 [Amended] Comments Invited 3. In § 52.50, the figure ‘‘$39.50’’ is Acting Under Secretary for Food Safety. [FR Doc. 96–5707 Filed 3–8–96; 8:45 am] Interested parties are invited to removed and the figure ‘‘$41.00’’ is participate in this proposed rulemaking BILLING CODE 3410±DM±P added in its place. by submitting such written data, views, or arguments as they may desire. 1 May include the following: Honey; molasses, Comments that provide the factual basis except for stockfeed; nuts and nut products, except oil; sugar (cane, beet, and maple); sirups (blended), supporting the views and suggestions sirups, except from grain; tea, cocoa, coffee, spices, presented are particularly helpful in condiments. developing reasoned regulatory 9656 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Proposed Rules decisions on the proposal. Comments E airspace designations for airspace within 2 miles each side of the 142° bearing are specifically invited on the overall areas extending upward from 700 feet or from the Hollister Municipal Airport regulatory, aeronautical, economic, more above the surface of the earth are extending from the 4.2-mile radius to 10 environmental, and energy-related published in Paragraph 6005 of FAA miles southeast of the Hollister Municipal aspects of the proposal. Airport and within 2 miles each side of the Order 7400.9C dated August 17, 1995, 320° bearing from the Hollister Municipal Communications should identify the and effective September 16, 1995, which Airport extending from the 4.2-mile radius to airspace docket number and be is incorporated by reference in 14 CFR 5.4 miles northwest of the Hollister submitted in triplicate to the address 71.1. The Class E airspace designation Municipal Airport. listed above. Commenters wishing the listed in this document would be * * * * * FAA to acknowledge receipt of their published subsequently in this Order. Issued in Los Angeles, California, on comments on this notice must submit The FAA has determined that this February 27, 1996. with the comments a self-addressed, proposed regulation only involves an James H. Snow, stamped postcard on which the established body of technical Acting Manager, Air Traffic Division, following statement is made: regulations for which frequent and Western-Pacific Region. ‘‘Comments to Airspace Docket No. 95– routine amendments are necessary to [FR Doc. 96–5725 Filed 3–8–96; 8:45 am] AWP–13.’’ The postcard will be date/ keep them operationally current. BILLING CODE 4910±13±M time stamped and returned to the Therefore, this proposed regulation—(1) commenter. All communications is not a ‘‘significant regulatory action’’ received on or before the specified under Executive Order 12866; (2) is not 14 CFR Part 71 closing date for comments will be a ‘‘significant rule’’ under DOT considered before taking action on the Regulatory Policies and Procedures (44 [Airspace Docket No. 96±AWP±5] proposed rule. The proposal contained FR 10034; February 26, 1979); and (3) Amendment of Class E Airspace; Ely, in this supplemental notice may be does not warrant preparation of a NV changed in light of comments received. Regulatory Evaluation as the anticipated All comments submitted will be impact is so minimal. Since this is a AGENCY: Federal Aviation available for examination in the System routine matter that will only affect air Administration (FAA), DOT. Management Branch, Air Traffic traffic procedures and air navigation, it ACTION: Notice of proposed rulemaking. Division, at 15000 Aviation Boulevard, is certified that this proposed rule Lawndale, California 90261, both before would not have a significant economic SUMMARY: This notice proposes to and after the closing date for comments. impact on a substantial number of small amend Class E airspace at Ely, NV. The A report summarizing each substantive entities under the criteria of the establishment of a Global Positioning public contact with FAA personnel Regulatory Flexibility Act. System (GPS) Standard Instrument concerned with this rulemaking will be Approach Procedure (SIAP) to Runway List of Subjects in 14 CFR Part 71 filed in the docket. (RWY) 18 has made this proposal Availability of NPRM’s Airspace, Incorporation by reference, necessary. The intended effect of this Navigation (air). proposal is to provide additional Any person may obtain a copy of this The Proposed Amendment controlled airspace for Instrument Flight Supplemental Notice of Proposed Rules (IFR) operations at ELY Airport Rulemaking (SNPRM) by submitting a In consideration of the foregoing, the (Yelland Field), Ely, NV. request to the Federal Aviation Federal Aviation Administration DATES: Comments must be received on Administration, System Management proposes to amend 14 CFR part 71 as or before April 12, 1996. Branch, P.O. Box 92007, Worldway follows: Postal Center, Los Angeles, California ADDRESSES: Send comments on the 90009. Communications must identify PART 71Ð[AMENDED] proposal in triplicate to: Federal the notice number of this SNPRM. Aviation Administration, Attn: 1. the authority citation for 14 CFR Manager, System Management Branch, Persons interested in being placed on a part 71 continues to read as follows: mailing list for future NPRM’s should AWP–530, Docket No. 96–AWP–5, Air also request a copy of Advisory Circular Authority: 49 U.S.C. 106(g), 40103, 40113, Traffic Division, P.O. Box 92007, No. 11–2A, which describes the 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– Worldway Postal Center, Los Angeles, 1963 Comp., p. 389; 14 CFR 11.69. application procedures. California, 90009 § 71.1 [Amended] The official docket may be examined The Proposal in the Office of the Assistant Chief 2. The incorporation by reference in Counsel, Western Pacific Region, The FAA is considering an 14 CFR 71.1 of the Federal Aviation Federal Aviation Administration, Room amendment to part 71 of the Federal Administration Order 7400.9C, Airspace 6007, 15000 Aviation Boulevard, Aviation Regulations (14 CFR part 71) Designations and Reporting Points, Lawndale, California 90261. by establishing a Class E airspace area dated August 17, 1995, and effective An informal docket may also be at Hollister, CA. The FAA published an September 16, 1995, is amended as examined during normal business at the earlier notice proposing to establish follows: Class E airspace area at Hollister, CA, on Office of the Manager, System January 8, 1996 (60 FR 549). Comments Paragraph 6005 Class E airspace areas Management Branch, Air Traffic received in response to the NPRM and extending upward from 700 feet or more Division at the above address. above the surface of the earth. this SNPRM will be addressed in the FOR FURTHER INFORMATION CONTACT: final disposition of the rule. This * * * * * Scott Speer, Airspace Specialist, System supplemental notice proposes to amend AWP CA E5 Hollister, CA [New] Management Branch, AWP–530, Air the Class E airspace area at Hollister, Hollister Municipal Airport, CA Traffic Division, Western-Pacific CA, as proposed in the original notice (Lat. 36°53′36′′N, long. 121°24′37′′W) Region, Federal Aviation by providing additional controlled That airspace extending upward from 700 Administration, 15000 Aviation airspace for IFR operations at Hollister feet above the surface within a 4.2-mile Boulevard, Lawndale, California, 90261, Municipal Airport, Hollister, CA. Class radius of Hollister Municipal Airport and telephone (310) 725–6533. Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Proposed Rules 9657

SUPPLEMENTARY INFORMATION: of this proposal is to provide additional radius of Ely VOR and within 4.3-miles controlled airspace for IFR operations at northeast and 8.3 miles southwest of the Ely Comments Invited ° Ely Airport-Yelland Field, Ely, NV. VOR 303 radial, extending from the Ely VOR Interested parties are invited to to 16.1 miles northwest and within 3 miles Class E airspace designations are ° participate in this proposed rulemaking published in Paragraph 6005 of FAA each side of the Ely VOR 014 radial, by submitting such written data, views, extending from the Ely VOR to 12.6 miles Order 7400.9C dated August 17, 1995, northeast and within 3 miles each side of the or arguments as they may desire. and effective September 16, 1995, which ° Comments that provide the factual basis Ely VOR 167 radial, extending from the Ely is incorporated by reference in 14 CFR VOR to 7.7 miles south of the Ely VOR. That supporting the views and suggestions 71.1. The Class E airspace designations airspace extending upward from 1,200 feet presented are particularly helpful in listed in this document would be above the surface within a 19.1-mile radius developing reasoned regulatory published subsequently in this Order. of Ely VOR and within 6.1 miles northeast decisions on the proposal. Comments The FAA has determined that this and 8.7 miles southwest of the Ely VOR 335° are specifically invited on the overall proposed regulation only involves an radial, extending from the 19.1-mile radius regulatory, aeronautical, economic, established body of technical area to 33 miles northwest of the Ely VOR environmental, and energy-related regulations for which frequent and and within 4.3 miles east and 6.5 miles west of the Ely VOR 014° radial, extending from aspects of the proposal. routine amendments are necessary to Communications should identify the the 19.1 mile radius to 21.3 miles north of keep them operationally current. the Ely VOR, and within 14 miles west and airspace docket number and be Therefore, this proposed regulation—(1) 12.5 miles east of the Ely VOR 169° radial, submitted in triplicate to the address is not a ‘‘significant regulatory action’’ extending from the 19.1-mile radius to 30 listed above. Commenters wishing the under Executive Order 12866; (2) is not miles south of the Ely VOR. FAA to acknowledge receipt of their a ‘‘significant rule’’ under DOT * * * * * comments on this notice must submit Regulatory Policies and Procedures (44 Issued in Los Angeles, California, on with the comments a self-addressed, FR 10034; February 26, 1979); and (3) February 22, 1996. stamped postcard on which the does not warrant preparation of a James H. Snow, following statement is made: Regulatory Evaluation as the anticipated Acting Manager, Air Traffic Division, ‘‘Comments to Airspace Docket No. 96– impact is so minimal. Since this is a Western-Pacific Region. AWP–5.’’ The postcard will be date/ routine matter that will only affect air [FR Doc. 96–5723 Filed 3–8–96; 8:45 am] time stamped and returned to the traffic procedures and air navigation, it BILLING CODE 4910±13±M commenter. All communications is certified that this proposed rule received on or before the specified would not have a significant economic closing date for comment swill be impact on a substantial number of small 14 CFR Part 71 considered before taking action on the entities under the criteria of the proposed rule. The proposal contained Regulatory Flexibility Act. [Airspace Docket No. 96±AWP±7] in this notice may be changed in light of comments received. All comments List of Subjects in 14 CFR Part 71 Proposed Amendment of Class E submitted will be available for Airspace, Incorporation by reference, Airspace; Jackson, CA examination in the System Management Navigation (air). AGENCY: Federal Aviation Branch, Air Traffic Division, at 15000 The Proposed Amendment Administration (FAA), DOT. Aviation Boulevard, Lawndale, ACTION: Notice of proposed rulemaking. California 90261, both before and after In consideration of the foregoing, the the closing date for comments. A report Federal Aviation Administration SUMMARY: This notice proposes to summarizing each substantive public proposes to amend 14 CFR part 71 as amend the Class E airspace area at contact with FAA personnel concerned follows: Jackson, CA. The development of a with this rulemaking will be filed in the PART 71Ð[AMENDED] Global Positioning System (GPS) docket. Standard Instrument Approach Availability of NPRM 1. The authority citation for 14 CFR Procedure (SIAP) to Runway (RWY) 1 part 71 continues to read as follows: has made this proposal necessary. The Any person may obtain a copy of this intended effect of this proposal is to Notice of Proposed Rulemaking (NPRM) Authority: 49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– provide adequate controlled airspace for by submitting a request to the Federal 1963 Comp., p. 389; 14 CFR 11.69. Instrument Flight Rules (IFR) operations Aviation Administration, System at Westover Field Amador County, § 71.1 [Amended] Management Branch, P.O. box 92007, Jackson, CA. Worldway Postal Center, Los Angeles, 2. The incorporation by reference in DATES: California 90009. Communications must 14 CFR 71.1 of the Federal Aviation Comments must be received on identify the notice number of this Administration Order 7400.9C, Airspace or before April 12, 1996. NPRM. Persons interested in being Designations and Reporting Points, ADDRESSES: Send comments on the placed on a mailing list for future dated August 17, 1995, and effective proposal in triplicate to: Federal NPRM’s should also request a copy of September 16, 1995, is amended as Aviation Administration, Attn: Advisory Circular No. 11–2A, which follows: Manager, System Management Branch, describes the application procedures. AWP–530, Docket No. 96–AWP–7, Air Paragraph 6005 Class E airspace areas Traffic Division, P.O. Box 92007, The Proposal extending upward from 700 feet or more above the surface of the earth. Worldway Postal Center, Los Angeles, The FAA is considering an California 90009. amendment to part 71 of the Federal * * * * * The official docket may be examined Aviation Regulations (14 CFR part 71) to AWP NV E5 Ely, NV [Revised] in the Office of the Assistant Chief amend the Class E airspace area at Ely, Ely VOR/DME Counsel, Western Pacific Region, NV. The establishment of a GPS SIAP to (Lat. 39°17′53′′N, long. 114°50′54′′W) Federal Aviation Administration, Room Ely Airport-Yelland Field has made this That airspace extending upward from 700 6007, 15000 Aviation Boulevard, proposal necessary. The intended effect feet above the surface within a 4.3-mile Lawndale, California 90261. 9658 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Proposed Rules

An informal docket may also be NPRM. Persons interested in being § 71.1 [Amended] examined during normal business at the placed on a mailing list for future 2. The incorporation by reference in Office of the Manager, System NPRM’s should also request a copy of 14 CFR 71.1 of the Federal Aviation Management Branch, Air Traffic Advisory Circular No. 11–2A, which Administration Order 7400.9C, Airspace Division at the above address. describes the application procedures. Designations and Reporting Points, FOR FURTHER INFORMATION CONTACT: The Proposal dated August 17, 1995, and effective William Buck, Airspace Specialist, September 16, 1995, is amended as System Management Branch, AWP–530, The FAA is considering an follows: Air Traffic Division, Western-Pacific amendment to part 71 of the Federal Aviation Regulations (14 CFR part 71) Paragraph 6005 Class E airspace areas Region, Federal Aviation extending upward from 700 feet or more Administration, 15000 Aviation by amending the Class E airspace area above the surface of the earth. at Jackson, CA. The development of GPS Boulevard, Lawndale, California 90261, * * * * * telephone (310) 725–6556. SIAP at Westover Field Amador County has made this proposal necessary. The AWP CA E5 Jackson, CA [Revised] SUPPLEMENTARY INFORMATION: intended effect of this proposal is to Jackson, Westover Field Amador Field, CA Comments Invited provide adequate Class E airspace for (Lat. 38°22′36′′ N, long. 120°47′38′′ W) aircraft executing the GPS RWY 1 SIAP Interested parties are invited to That airspace extending upward from 700 at Westover Field Amador County, participate in this proposed rulemaking feet above the surface within a 6.3-mile Jackson, CA. Class E airspace radius of Westover Field Amador County. by submitting such written data, views, designations for airspace area extending or arguments as they may desire. * * * * * upward from 700 feet or more above the Comments that provide the factual basis Issued in Los Angeles, California, on surface of the earth are published in February 23, 1996. supporting the views and suggestions Paragraph 6005 of FAA Order 7400.9C presented are particularly helpful in James H. Snow, dated August 17, 1995, and effective developing reasoned regulatory Acting Manager, Air Traffic Division, September 16, 1995, which is decisions on the proposal. Comments Western-Pacific Region. incorporated by reference in 14 CFR are specifically invited on the overall [FR Doc. 96–5722 Filed 3–8–96; 8:45 am] 71.1. The Class E airspace designation regulatory, aeronautical, economic, BILLING CODE 4910±13±M listed in this document would be environmental, and energy-related published subsequently in this Order. aspects of the proposal. The FAA has determined that this Communications should identify the 14 CFR Part 71 proposed regulation only involves an airspace docket number and be [Airspace Docket No. 96±AWP±6] established body of technical submitted in triplicate to the address regulations for which frequent and listed above. Commenters wishing the Amendment of Class E Airspace; routine amendments are necessary to FAA to acknowledge receipt of their Visalia, CA keep them operationally current. comments on this notice must submit Therefore, this proposed regulation—(1) AGENCY: Federal Aviation with the comments a self-addressed, is not a ‘‘significant regulatory action’’ Administration (FAA), DOT. stamped postcard on which the under Executive Order 12866; (2) is not following statement is made: ACTION: Notice of proposed rulemaking. a ‘‘significant rule’’ under DOT ‘‘Comments to Airspace Docket No. 96– Regulatory Policies and Procedures (44 SUMMARY: This notice proposes to AWP–7.’’ The postcard will be date/ FR 10034; February 26, 1979); and (3) amend the Class E airspace area at time stamped and returned to the does not warrant preparation of a Visalia, CA due to the abandonment of commenter. All communications Regulatory Evaluation as the anticipated Ianni Strip, CA. The intended effect of received on or before the specified impact is so minimal. Since this is a this proposal is to remove the reference closing date for comments will be routine matter that will only affect air to Ianni Strip from the Class E airspace considered before taking action on the traffic procedures and air navigation, it description. proposed rule. The proposal contained is certified that this proposed rule DATES: Comments must be received on in this notice may be changed in light would not have a significant economic or before April 12, 1996. of comments received. All comments impact on a substantial number of small submitted will be available for ADDRESSES: Send comments on the entities under the criteria of the examination in the System Management proposal in triplicate to: Federal Regulatory Flexibility Act. Branch, Air Traffic Division, at 15000 Aviation Administration, Attn: Aviation Boulevard, Lawndale, List of Subjects in 14 CFR Part 71 Manager, System Management Branch, California 90261, both before and after AWP–530, Docket No. 95–AWP–6, Air Airspace, Incorporation by reference, Traffic Division, P.O. Box 92007, the closing date for comments. A report Navigation (air). summarizing each substantive public Worldway Postal Center, Los Angeles, contact with FAA personnel concerned The Proposed Amendment California 90009. The official docket may be examined with this rulemaking will be filed in the In consideration of the foregoing, the docket. in the Office of the Assistant Chief Federal Aviation Administration Counsel, Western Pacific Region, Availability of NPRM proposes to amend 14 CFR part 71 as Federal Aviation Administration, Room follows: Any person may obtain a copy of this 6007, 15000 Aviation Boulevard, Notice of Proposed Rulemaking (NPRM) PART 71Ð[AMENDED] Lawndale, California 90261. by submitting a request to the Federal An informal docket may also be Aviation Administration, System 1. The authority citation for 14 CFR examined during normal business at the Management Branch, P.O. Box 92007, part 71 continues to read as follows: Office of the Manager, System Worldway Postal Center, Los Angeles, Authority: 49 U.S.C. 106(g), 40103, 40113, Management Branch, Air Traffic California 90009. Communications must 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– Division at the above address. identify the notice number of this 1963 Comp., p. 389; 14 CFR 11.69. FOR FURTHER INFORMATION CONTACT: Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Proposed Rules 9659

William Buck, Airspace Specialist, The Proposal September 16, 1995, is amended as System Management Branch, AWP–530, The FAA is considering an follows: Air Traffic Division, Western-Pacific amendment to part 71 of the Federal Paragraph 6005 Class E airspace areas Region, Federal Aviation Aviation Regulations (14 CFR part 71) to extending upward from 700 feet or more Administration, 15000 Aviation revise the Class E airspace area at above the surface of the earth. Boulevard, Lawndale, California, 90261, Visalia Municipal Airport, CA due to * * * * * telephone (310) 725–6556. the abandonment of Ianni Strip, CA. Visalia Municipal Airport, CA (Lat. 36°19′07′′N, long. 119°23′34′′W) SUPPLEMENTARY INFORMATION: The intended effect of this proposal is to remove the reference to Ianni Strip Visalia VOR/DME ° ′ ′′ ° ′ ′′ Comments Invited from the Class E airspace description. (Lat. 36 22 02 N, long. 119 28 56 W) Class E airspace designations for Swanson Ranch NR1 Airport, CA Interested parties are invited to (Lat. 36°24′00′′N, long. 119°37′03′′W) airspace areas extending upward from participate in this proposed rulemaking 700 feet or more above the surface of the That airspace extending upward from 700 by submitting such written data, views, feet above the surface within a 5-mile radius earth are published in Paragraph 6005 of or arguments as they may desire. of the Visalia Municipal Airport and within FAA Order 7400.9C dated August 17, ° Comments that provide the factual basis 1.8 miles each side of the Visalia VOR 302 1995, and effective September 16, 1995, supporting the views and suggestions radial, extending from the 5-mile radius to 7 which is incorporated by reference in 14 miles northwest of the VOR and within 4 presented are particularly helpful in CFR 71.1. The Class E airspace miles each side of the Visalia VOR 150° developing reasoned regulatory designation listed in this document radial, extending from 1.7 miles southeast to decisions on the proposal. Comments would be published subsequently in 17.4 miles southeast of the Visalia VOR and ° are specifically invited on the overall this Order. within 2.3 miles each side of the 245 bearing regulatory, aeronautical, economic, The FAA has determined that this from the Visalia Municipal Airport, extending from the 5-mile radius to 8 miles environmental, and energy-related proposed regulation only involves an aspects of the proposal. southwest of the airport; excluding the established body of technical airspace within 1-mile radius of Swanson Communications should identify the regulations for which frequent and airspace docket number and be Ranch NR1 Airport. routine amendments are necessary to * * * * * submitted in triplicate to the address keep them operationally current. listed above. Commenters wishing the Issued in Los Angeles, California, on Therefore, this proposal regulation—(1) February 22, 1996. FAA to acknowledge receipt of their is not a ‘‘significant regulatory action’’ comments on this notice must submit Leonard A. Mobley, under Executive Order 12866; (2) is not Acting Manager, Air Traffic Division, with the comments a self-addressed, a ‘‘significant rule’’ under DOT stamped postcard on which the Western-Pacific Region. Regulatory Policies and Procedures (44 [FR Doc. 96–5721 Filed 3–8–96; 8:45 am] following statement is made: FR 10034; February 26, 1979); and (3) ‘‘Comments to Airspace Docket No. 96– does not warrant preparation of a BILLING CODE 4910±13±M AWP–6.’’ The postcard will be date/ Regulatory Evaluation as the anticipated time stamped and returned to the impact is so minimal. Since this is a commenter. All communications routine matter that will only affect air DEPARTMENT OF THE TREASURY received on or before the specified traffic procedures and air navigation, it Internal Revenue Service closing date for comments will be is certified that this proposed rule considered before taking action on the would not have a significant economic 26 CFR Part 1 proposed rule. The proposal contained impact on a substantial number of small in this notice may be changed in light entities under the criteria of the [EE±24±93] of comments received. All comments Regulatory Flexibility Act. submitted will be available for RIN 1545±AU05 examination in the System Management List of Subjects in 14 CFR Part 71 Notice, Consent, and Election Branch, Air Traffic Division, at 15000 Airspace, Incorporation by reference, Requirements Under Sections Aviation Boulevard, Lawndale, Navigation (air). 411(a)(11) and 417; Hearing California 90261, both before and after the closing date for comments. A report The Proposed Amendment AGENCY: Internal Revenue Service, summarizing each substantive public Accordingly, pursuant to the Treasury. contact with FAA personnel concerned authority delegated to me, the Federal ACTION: Notice of public hearing on with this rulemaking will be filed in the Aviation Administration proposes to proposed rulemaking. docket. amend part 71 of the Federal Aviation Regulations (14 CFR part 71) as follows: SUMMARY: This document provides Availability of NPRM notice of a public hearing on proposed Any person may obtain a copy of this PART 71Ð[AMENDED] Income Tax Regulations that provide guidance concerning the notice and Notice of Proposed Rulemaking (NPRM) 1. The authority citation for 14 CFR consent requirements under section by submitting a request to the Federal part 71 continues to read as follows: Aviation Administration, System 411(a)(11) and the notice and election Authority: 49 U.S.C. 106(g), 40103, 40113, requirements of section 417. Management Branch, P.O. Box 92007, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– DATES: The public hearing will be held Worldway Postal Center, Los Angeles, 1963 Comp., p. 389; 14 CFR 11.69. California 90009. Communications must Wednesday, April 24, 1996, beginning identify the notice number of this § 71.1 [Amended] at 10:00 a.m. Requests to speak and NPRM. Persons interested in being 2. The incorporation by reference in outlines of oral comments must be placed on a mailing list for future 14 CFR 71.1 of the Federal Aviation received by Wednesday, April 3, 1996. NPRM’s should also request a copy of Administration Order 7400.9C, Airspace ADDRESSES: The public hearing will be Advisory Circular No. 11–2A, which Designations and Reporting Points, held in the Commissioner’s Conference describes the application procedures. dated August 17, 1995, and effective Room, third floor, Room 3313, Internal 9660 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Proposed Rules

Revenue Building, 1111 Constitution 26 CFR Part 1 26 CFR Part 301 Avenue NW., Washington, DC. Requests to speak and outlines of oral comments [EE±24±93] [DL±40±95] should be mailed to the Internal Revenue Service, P.O. Box 7604, Ben RIN 1545±AU05 RIN 1545±AT48 Franklin Station, Attn: CC:DOM:CORP:R [EE–24–93], room 5228, Washington, DC Notice, Consent, and Election Disclosure of Returns and Return 20044. Requirements Under Sections Information to Procure Property or FOR FURTHER INFORMATION CONTACT: 411(a)(11) and 417; Correction Services for Tax Administration Christina Vasquez of the Regulations Purposes; Correction AGENCY: Unit, Assistant Chief Counsel Internal Revenue Service, AGENCY: (Corporate), (202) 622–6803 (not a toll- Treasury. Internal Revenue Service, Treasury. free number). ACTION: Correction to notice of proposed rulemaking by cross-reference to ACTION: Correction to notice of proposed SUPPLEMENTARY INFORMATION: temporary regulations. rulemaking. The subject of the public hearing is proposed amendments to the Income SUMMARY: This document contains a SUMMARY: This document contains Tax Regulations under sections 411 and correction to proposed regulations by corrections to the notice of proposed 417 of the Internal Revenue Code of cross-reference to temporary regulations rulemaking which was published in the 1986. The proposed regulations which were published in the Federal Federal Register for Friday, December appeared in the Federal Register for Register for Friday, September 22, 1995 15, 1995 (60 FR 64402). The proposed Friday, September 22, 1995 (60 FR (60 FR 49236). The proposed regulations regulations relate to the disclosure of 49236). provide guidance concerning the notice returns and return information in and consent requirements under section connection with the procurement of The rules of § 601.601(a)(3) of the 411(a)(11) and the notice and election property and services for tax ‘‘Statement of Procedural Rules’’ (26 requirements of section 417. administration purposes. CFR part 601) shall apply with respect to the public hearing. Persons who have FOR FURTHER INFORMATION CONTACT: FOR FURTHER INFORMATION CONTACT: submitted written comments within the Thomas Foley, (202) 622–6050 (not a Donald Squires, (202) 622–4570 (not a time prescribed in the notice of toll-free number). toll-free number). proposed rulemaking and who also SUPPLEMENTARY INFORMATION: SUPPLEMENTARY INFORMATION: desire to present oral comments at the hearing on the proposed regulations Background Background should submit not later than The notice of proposed rulemaking by The notice of proposed rulemaking Wednesday, April 3, 1996, an outline of cross-reference to temporary regulations that is the subject of this correction is the oral comments/testimony to be that is the subject of this correction is under section 6103 of the Internal presented at the hearing and the time under sections 411 and 417 of the Revenue Code. they wish to devote to each subject. Internal Revenue Code. Each speaker (or group of speakers Need for Correction Need for Correction representing a single entity) will be As published, the notice of proposed limited to 10 minutes for an oral As published, the notice of proposed rulemaking contains errors that are in presentation exclusive of the time rulemaking by cross-reference to need of clarification. consumed by the questions from the temporary regulations contains an error Correction of Publication panel for the government and answer that is in need of correction. thereto. Correction of Publication Accordingly, the publication of the Because of controlled access notice of proposed rulemaking which is restrictions, attenders cannot be Accordingly, the publication of the the subject of FR Doc. 95–30505, is admitted beyond the lobby of the notice of proposed rulemaking by cross- corrected as follows: Internal Revenue Building until 9:45 reference to temporary regulations a.m. 1. On page 64402, column three, in which is the subject of FR Doc. 95– the heading, the ‘‘Agency number’’ An agenda showing the scheduling of 23264, is corrected as follows: ‘‘[DL–01–95]’’ is corrected to read ‘‘[DL– the speakers will be made after outlines On page 49236, in the heading, the 40–95]’’. are received from the persons testifying. ‘‘RIN’’ ‘‘1545–AT75’’ is corrected to read 2. On page 64402, column three, in Copies of the agenda will be available ‘‘1545–AU05’’. free of charge at the hearing. the preamble following the ADDRESSES: Cynthia E. Grigsby, caption, lines 2 and 8, the language Cynthia E. Grigsby, Chief, Regulations Unit, Assistant Chief ‘‘(DL–01–95)’’ is corrected to read ‘‘(DL– Chief, Regulations Unit, Assistant Chief Counsel (Corporate). 40–95)’’. Counsel (Corporate). [FR Doc. 96–5730 Filed 3–8–96; 8:45 am] Cynthia E. Grigsby, [FR Doc. 96–5674 Filed 3–8–96; 8:45 am] BILLING CODE 4830±01±U Chief, Regulations Unit, Assistant Chief BILLING CODE 4830±01±P Counsel (Corporate). [FR Doc. 96–5729 Filed 3–8–96; 8:45 am] BILLING CODE 4830±01±U Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Proposed Rules 9661

ENVIRONMENTAL PROTECTION SUMMARY: The EPA proposes to grant conformity SIP revisions enable the AGENCY conditional approval of the State State of Ohio to implement and enforce Implementation Plan (SIP) revision the Federal general conformity 40 CFR Part 52 submitted by the state of Missouri for requirements in the nonattainment and [WI64±01±7148b; FRL±5416±9] the purpose of fulfilling the maintenance areas at the State or local requirements set forth in the EPA’s level in accordance with regulations on Approval and Promulgation of State General Conformity rule. The SIP was Determining Conformity of General Implementation Plan; Wisconsin; submitted by the state to satisfy the Federal Actions to State or Federal Clean Fuel Fleet Program Federal requirements in 40 CFR 51.852 Implementation Plans. and 93.151. In the final rules section of DATES: Comments on this proposed AGENCY: United States Environmental the Federal Register, the EPA is action must be received by April 10, Protection Agency (USEPA). granting conditional approval the state’s 1996. ACTION: Proposed rule. SIP revision as a direct final rule ADDRESSES: Written comments should without prior proposal because the SUMMARY: The U.S. Environmental be sent to: J. Elmer Bortzer, Chief, Agency views this as a noncontroversial Regulation Development Section, Air Protection Agency (USEPA) is revision amendment and anticipates no proposing to approve a revision to the Programs Branch (AR–18J), USEPA, adverse comments. A detailed rationale Region 5, 77 West Jackson Boulevard, Wisconsin State Implementation Plan for the approval is set forth in the direct (SIP) for the purpose of establishing a Chicago, Illinois 60604–3590. final rule. If no adverse comments are Copies of the request and the Clean-Fuel Fleet Program. Wisconsin received in response to this proposed submitted the SIP revision request to USEPA’s analysis are available for rule, no further activity is contemplated inspection at the following address: satisfy a federal mandate, found in the in relation to this rule. If the EPA Clean Air Act, requiring certain states to (Please telephone Patricia Morris at receives adverse comments, the direct (312) 353–8656 before visiting the establish Clean-Fuel Fleet Programs. final rule will be withdrawn and all This revision establishes and requires Region 5 office.) USEPA, Region 5, Air public comments received will be and Radiation Division, 77 West Jackson the implementation of a Clean-Fuel addressed in a subsequent final rule Fleet Program in the Milwaukee ozone Boulevard, Chicago, Illinois 60604– based on this proposed rule. The EPA 3590. nonattainment area. will not institute a second comment DATES: Comments on this proposed period on this document. Any parties SUPPLEMENTARY INFORMATION: For action must be received by April 10, interested in commenting on this additional information, see the Direct 1996. document should do so at this time. Final rule which is located in the Rules section of this Federal Register. ADDRESSES: Written comments should DATES: Comments on this proposed rule be sent to: Carlton T. Nash, Chief, must be received in writing by April 10, Authority: 42 U.S.C. 7401–7671q. Regulation Development Section, Air 1996. Dated: February 12, 1996. Programs Branch (AP–18J), USEPA, ADDRESSES: Comments may be mailed to David A. Ullrich, Region 5, 77 West Jackson Boulevard, Lisa V. Haugen, Environmental Acting Regional Administrator. Chicago, Illinois 60604–3590. Protection Agency, Air Planning and [FR Doc. 96–5738 Filed 3–8–96; 8:45 am] SUPPLEMENTARY INFORMATION: For Development Branch, 726 Minnesota BILLING CODE 6560±50±P additional information, see the Direct Avenue, Kansas City, Kansas 66101. Final rule which is located in the Rules FOR FURTHER INFORMATION CONTACT: Lisa section of this Federal Register. Copies V. Haugen at (913) 551–7877. 40 CFR Part 70 of the request and the USEPA’s analysis are available for inspection at the SUPPLEMENTARY INFORMATION: See the [TN±96±01; TN-MEMP±96±01; FRL±5439±2] information provided in the direct final following address: (Please telephone Clean Air Act Proposed Interim Brad Beeson at (312) 353–4779 before rule which is located in the rules section of the Federal Register. Approval of Title V Operating Permit visiting the Region 5 office.) EPA, Programs; State of Tennessee and Region 5, Air and Radiation Division, 77 Dated: February 6, 1996. Memphis-Shelby County, Tennessee West Jackson Boulevard, Chicago, Dennis Grams, Illinois 60604–3590. Regional Administrator. AGENCY: Environmental Protection Authority: 42 U.S. C. 7401–7671q. [FR Doc. 96–5734 Filed 3–8–96; 8:45 am] Agency (EPA). Dated: January 17, 1996. BILLING CODE 6560±50±P ACTION: Proposed interim approval. Valdas V. Adamkus, SUMMARY: EPA proposes interim Regional Administrator. 40 CFR Part 52 approval of the operating permit [FR Doc. 96–5736 Filed 3–8–96; 8:45 am] programs submitted by the Tennessee BILLING CODE 6560±50±P [OH89±1±7254b; FRL±5434±8] Department of Environment and Conservation and by the Memphis- Approval and Promulgation of Shelby County Health Department for 40 CFR Part 52 Implementation Plan; Ohio the purpose of complying with Federal [MO±30±1±7152b; FRL±5424±8] AGENCY: Environmental Protection requirements which mandate that Agency (EPA). authorized permitting authorities Approval and Promulgation of develop, and submit to EPA, programs ACTION: Proposed rule. Implementation Plans; State of for issuing operating permits to all Missouri SUMMARY: The Environmental Protection major stationary sources and to certain other sources. AGENCY: Environmental Protection Agency (EPA) proposes to approve a Agency (EPA). revision to the Ohio State DATES: Comments on this proposed Implementation Plan (SIP) for the action must be received in writing by ACTION: Proposed rule. general conformity rules. The general April 10, 1996. 9662 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Proposed Rules

ADDRESSES: Written comments on this February 13, 1996. Because the August the State of Tennessee or Memphis- action should be addressed to Carla E. 8, 1995 supplement materially changed Shelby County, both sanctions under Pierce, Chief, Air Toxics Unit/Title V the State’s title V program submittal, section 179(b) will apply after the Program Development Team, Air EPA extended the one-year review expiration of the 18-month period until Programs Branch, at the EPA Region 4 period. EPA received Memphis-Shelby the Administrator determines that the office listed below. Copies of the State County’s title V program submittal on State or the County has come into of Tennessee and Memphis-Shelby June 26, 1995. Supplemental materials compliance. In any case, if, six months County submittals, and other supporting dated August 22, 1995, August 23, 1995, after application of the first sanction, information used in developing this August 24, 1995, January 29, 1996, the State or the County still has not proposed interim approval, are available February 7, 1996, and February 14, 1996 submitted a corrective program that EPA for inspection during normal business were submitted by the County to determines to be complete, a second hours at the following location: U.S. complete the title V program submittal. sanction will be required. Environmental Protection Agency, EPA reviews title V operating permit If, following final interim approval, Region 4, 345 Courtland Street, NE, programs pursuant to section 502 of the EPA disapproves the State of Atlanta, GA 30365. Interested persons Act and 40 CFR part 70, which together Tennessee’s or Memphis-Shelby wanting to examine these documents, outline the criteria for approval and County’s complete corrective program, contained in the EPA dockets numbered disapproval. Where a program EPA will be required to apply one of the TN–96–01 and TN-MEMP–96–01, substantially, but not fully, meets the section 179(b) sanctions on the date 18 should make an appointment at least 24 requirements of part 70, EPA may grant months after the effective date of the hours before the visiting day. the program interim approval for a disapproval, unless prior to that date the FOR FURTHER INFORMATION CONTACT: Kim period of up to two years. If EPA has not State or the County has submitted a Gates, Title V Program Development fully approved a program by November revised program and EPA has Team, Air Programs Branch, Air, 15, 1995, or by the end of the interim determined that it corrected the Pesticides & Toxics Management program approval period, it must deficiencies that prompted the Division, U.S. Environmental Protection establish and implement a Federal disapproval. Moreover, if the Agency, Region 4, 345 Courtland Street, operating permit program for that state Administrator finds a lack of good faith NE, Atlanta, GA 30365, (404) 347–3555, or local agency. on the part of the State or the County, Ext. 4146. B. Federal Oversight and Sanctions both sanctions under section 179(b) will apply after the expiration of the 18- SUPPLEMENTARY INFORMATION: If EPA grants interim approval to the month period until the Administrator State of Tennessee and Memphis-Shelby I. Background and Purpose determines that the State or the County County programs, the interim approvals has come into compliance. In all cases, A. Introduction will extend for two years following the if six months after EPA applies the first effective date of the final interim As required under title V of the Clean sanction, the State of Tennessee or approvals, and cannot be renewed. Air Act (‘‘the Act’’), as amended by the Memphis-Shelby County has not During the interim approval period, the 1990 Clean Air Act Amendments, EPA submitted a revised program that EPA State and the County will not be subject promulgated rules on July 21, 1992 (57 determines to have corrected the to sanctions and EPA will not be FR 32250) that define the minimum deficiencies that prompted disapproval, elements of an approvable operating obligated to promulgate, administer, and enforce a Federal operating permit a second sanction will be required. permit program and the corresponding In addition, discretionary sanctions program for the State or the County. standards and procedures by which EPA may be applied where warranted any Permits issued under a program with will approve, oversee, and withdraw time after the end of an interim approval interim approval are fully effective with approval of state and local operating period if a state or local agency has not respect to part 70. The 12-month time permit programs. These rules are timely submitted a complete corrective period for submittal of permit codified at 40 Code of Federal program or EPA has disapproved a Regulations (CFR) part 70. Title V and applications by sources subject to part submitted corrective program. part 70 require that authorized 70 requirements and the three-year time Moreover, if EPA has not granted full permitting authorities develop, and period for processing the initial permit approval to a state or local program by submit to EPA, programs for issuing applications begin upon the effective the expiration of an interim approval operating permits to all major stationary date of final interim approval. and that expiration occurs after sources and to certain other sources. Following the granting of final interim The Act requires permitting approval, if the State of Tennessee or November 15, 1995, EPA must authorities to develop and submit these Memphis-Shelby County fail to submit promulgate, administer, and enforce a programs to EPA by November 15, 1993, a complete corrective program for full Federal operating permit program for and EPA to approve or disapprove each approval by the date six months before that state or local agency upon interim program within one year after receiving expiration of the interim approval, EPA approval expiration. the submittal. If the program submission will start an 18-month clock for II. Proposed Action and Implications is materially changed during the one- mandatory sanctions. If the State or the year review period, 40 CFR 70.4(e)(2) County then fail to submit a corrective A. Analysis of State and County allows EPA to extend the review period program that EPA finds complete before Submittals for no more than one year following the expiration of that 18-month period, EPA has concluded that the operating receipt of the additional materials. EPA EPA is required to apply one of the permit programs submitted by the State received the State of Tennessee’s title V sanctions in section 179(b) of the Act, of Tennessee and Memphis-Shelby operating permit program submittal on which will remain in effect until EPA County substantially meet the November 10, 1994. The State determines that the State or the County requirements of title V and part 70, and supplemented the original program has corrected the deficiency by proposes to interimly approve the submittal with additional materials on submitting a complete corrective programs. For detailed information on December 5, 1994, August 8, 1995, program. Moreover, if the Administrator the analyses of the State and County January 17, 1996, January 30, 1996, and finds a lack of good faith on the part of submittals, please refer to the Technical Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Proposed Rules 9663

Support Documents (TSDs) contained in deemed the program descriptions to be Acidic Precipitation’’.1 These the dockets at the address noted above. sufficient for meeting the requirement of regulations, and several other rules and The TSDs describe the manner in which 40 CFR 70.4(b)(1). statutes providing for administrative the programs satisfy the operating Pursuant to 40 CFR 70.4(b)(3), each actions and the assessment of fees, were permit program requirements of part 70. permitting authority is required to submitted by Memphis-Shelby County submit a legal opinion from the with sufficient evidence of procedurally 1. Support Materials Attorney General (or the attorney for the correct adoption as required by 40 CFR Pursuant to section 502(d) of the Act, air pollution control agency that has 70.4(b)(2). each permitting authority must develop independent legal counsel) and submit to the Administrator an demonstrating adequate authority to 3. Regulations operating permit program under state or carry out all aspects of the title V a. Applicability. The State of local law or under an interstate compact operating permit program. The State of Tennessee and Memphis-Shelby County that meets the requirements of title V of Tennessee submitted an Attorney title V program submittals, in the Act. On November 10, 1994, EPA General’s Opinion demonstrating Subparagraphs 1200–3–9–.02(11) (b) received the title V operating permit adequate legal authority as required by and (c), substantially meet the program submitted by the Tennessee Federal law and regulation. The requirements of 40 CFR 70.2 and 70.3 Department of Environment and Memphis-Shelby County submittal with regards to applicability. Conservation. The State requested, contains an Opinion Letter by the The State of Tennessee and Memphis- under the signature of the Tennessee County Attorney. This letter, with the Shelby County title V programs provide Governor’s designee, approval of its supplements dated August 24, 1995 and for the treatment of research and operating permit program with full January 29, 1995, adequately development (R&D) facilities as sources authority to administer the program in demonstrate the required legal that are separate from other stationary ninety-one of the State’s ninety-five authority. sources that are located on contiguous counties. Four of the State’s counties The program submittals also contain and adjacent properties and that are (Shelby, Davidson, Hamilton, and Knox) supporting documentation, such as under common control. Neither are regulated by local air pollution evidence of the procedurally correct program, however, requires a ‘‘support control agencies operating under adoption of the permitting rules, permit facility test’’ (see 60 FR 45556, August certificates of exemption issued application forms, and copies of the 31, 1995) before R&D is treated as a pursuant to Tennessee Code Annotated enforcement agreements with EPA. The separate source when it is co-located (T.C.A.) Section 68–201–115. The State’s submittal was determined by with an industrial activity. EPA does State’s jurisdiction also does not extend EPA to be administratively complete on not consider the lack of the support to sources of air pollution over which an January 24, 1995. The County’s facility test as an issue for program Indian Tribe has jurisdiction. The State submittal was determined to be approval because the definition of of Tennessee supplemented its initial administratively complete on September ‘‘Research and Development Facility’’ title V program submittal on December 5, 1995. found in Subparagraph 1200–3–9– 5, 1994, August 8, 1995, January 17, .02(11)(b)24. requires that the facility 2. Program Implementation 1996, January 30, 1996, and February not be ‘‘engaged in the manufacture of 13, 1996. The State of Tennessee developed products for commercial sale in On June 26, 1995, EPA received the Paragraph 1200–3–9–.02(11), entitled commerce, except in a de minimis Memphis-Shelby County title V ‘‘Major Stationary Source Operating manner’’. Therefore, it is EPA’s operating permit program submittal. Permits’’, of the Tennessee Air Pollution understanding that if co-located R&D The State requested, under the signature Control Regulations to implement the facilities contribute to industrial of the Tennessee Governor’s designee, substantive requirements of part 70. The activities in material rather than de approval of the County’s program on State also developed Rule 1200–3–10– minimis capacities, the State and the behalf of the Memphis-Shelby County .04 entitled ‘‘Enhanced and Periodic County will consider them as support Health Department. The Memphis- Monitoring for Title V Sources’’ and facilities and thus not separable. This Shelby County Health Department has Chapter 1200–3–30 entitled ‘‘Control of interpretation is consistent with the authority to administer the operating Acidic Precipitation’’ to implement support facility test, which treats co- permit program in all areas of Shelby other title V requirements. These rules, located and commonly owned sources County, Tennessee, including the and several other rules and statutes as one source (with aggregated incorporated municipalities of providing for administrative actions and emissions) if the output of one source is Arlington, Bartlett, Collierville, the assessment of fees, were submitted more than 50 percent devoted to the Germantown, Lakeland, Memphis, and by the State with sufficient evidence of support of the other source. Millington. The County’s jurisdiction procedurally correct adoption as The State of Tennessee and Memphis- does not extend to sources of air required by 40 CFR 70.4(b)(2). Shelby County programs, in pollution over which an Indian Tribe The County’s operating permit Subparagraph 1200–3–9– has jurisdiction. The County program is implemented and enforced .02(11)(b)14.(iv), provide that ‘‘* * * all supplemented its initial program on through the Shelby County Air activities claimed by an applicant to be August 22, 1995, August 23, 1995, Pollution Control Code, which was August 24, 1995, January 29, 1996, amended on April 24, 1995 to 1 The current Memphis-Shelby County February 7, 1996, and February 14, incorporate by reference in entirety the codifications make reference to the entire 1996. State’s Paragraph 1200–3–9–.02(11) Tennessee Chapter 1200–3–9, which was adopted The State of Tennessee and Memphis- entitled ‘‘Major Stationary Source and incorporated by reference into Section 16–77 of Operating Permits’’, Rule 1200–3–10– the City’s code and into Section 3–5 of the County’s Shelby County submittals address, in code. In addition, Tennessee Chapter 1200–3–10 the Workload Analyses contained .04 entitled ‘‘Enhanced and Periodic was adopted into Sections 16–85 and 3–7, and therein, the requirement of 40 CFR Monitoring for Title V Sources’’, and Tennessee Chapter 1200–3–30 was adopted into Chapter 1200–3–30 entitled ‘‘Control of Sections 16–91.2 and 3–36. Since the City and the 70.4(b)(1) by describing how the State County have not yet codified subsections, all and County intend to carry out their references in this notice will be to applicable parts responsibilities under part 70. EPA has of Tennessee regulations. 9664 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Proposed Rules research and development at the that their permitting regulations require The initial State of Tennessee and contiguous or adjacent property shall a source submitting an application for a Memphis-Shelby County title V program have their emissions aggregated as a title V permit to certify its compliance submittals contained the version of Rule single source for the purposes of status with regards to all applicable 1200–3–9–.04 entitled ‘‘Exemptions’’ determining whether or not the research requirements. Alternatively, the State that became state-effective on November and development activities constitute a and the County could revise their 21, 1993. Rule 1200–3–9–.04 identifies major source.’’ It is EPA’s understanding regulations to directly incorporate this over 50 different insignificant activities that the term ‘‘activities’’ in this requirement. and emission units that are exempt from provision is intended to address the In addition, because neither the State permitting requirements. Because Rule R&D activities at the R&D facility, as nor the County have regulatory 1200–3–9–.04 purports to exempt the referenced in the preceding sentence of provisions for permit applications to listed activities from ‘‘permitting’’, Subparagraph 1200–3–9– contain the information described in 40 rather than from description in the .02(11)(b)14.(iv) and defined in CFR 70.5(c), EPA is reminding the State permit application, it is broader than the Subparagraph 1200–3–9–.02(11)(b)24., and the County that any revisions to exemption contemplated by 40 CFR and is not intended to apply to any their forms must be submitted as title V 70.5(c). activities occurring within a stationary program revisions for EPA review and Activities and emission units deemed source that is not considered to be a approval pursuant to 40 CFR 70.4(i). ‘‘insignificant’’ for purposes of title V R&D facility. Given this understanding, c. Insignificant Activities. Pursuant to permitting are not exemptions from the EPA does not consider this provision to part 70, a permitting authority must obligation to consider all emissions be a title V program approval issue for request and EPA may approve as part of from the source in determining whether the State or the County. that program, a list of insignificant the source is major, nor are they Neither the State or the County activities and emission levels which exemptions from the requirement to addressed 40 CFR 70.3(b)(3), which need not be included in the permit comply with the permit content allows exempted sources to apply for a applications. Although part 70 does not provisions of 40 CFR 70.6 for all permit, in their program submittals. define appropriate emission levels for applicable requirements. Rather, Justification of this omission of a part 70 insignificant activities, 40 CFR provisions for insignificant activities provision is requested from the State 70.4(b)(2) requires permitting and emission units allow sources and the County as a condition of full authorities to include in their title V subject to title V to avoid description of program approval. program submittals any criteria used to EPA-approved insignificant activities in b. Permit Applications. The State of determine insignificant activities or the application, or to include only Tennessee and Memphis-Shelby County emission levels. Based on the limited information in the application title V programs, in Subparagraph 1200– information provided in the submittal, (as in the case of activities deemed 3–9–.02(11)(d) and in the permit EPA determines whether the insignificant based on size or application forms, substantially meet insignificant emission levels for the production rate). Therefore, the the requirements of 40 CFR 70.5 for particular program under review are exemption from ‘‘permitting’’ complete permit application forms. approvable. requirements contained in Rule 1200–3– However, the regulatory provisions in For other title V program submittals, 9–.04 must be removed as a condition both programs do not specifically EPA has accepted ‘‘generic’’ (that is, not of full approval for both programs. require the permit applications to keyed to a specific type of activity) Moreover, neither the State nor the contain the information described in 40 emission thresholds of no more than County submitted information regarding CFR 70.5(c), including the compliance five tons per year for regulated air the estimated levels of emissions from certification requirements of 40 CFR pollutants and 1000 pounds per year for the activities and units listed in Rule 70.5(c)(9). hazardous air pollutants (HAPs) as 1200–3–9–.04, nor has a demonstration The State’s and County’s application insignificant. EPA believes that these been made that these activities are not forms, which were submitted for levels are sufficiently below likely to be subject to applicable approval as part of both title V applicability thresholds for many requirements or to have emissions that programs, do require all the information applicable requirements to ensure, in affect major source status. EPA has referred to in 40 CFR 70.5(c), including combination with appropriate examined the list of excluded activities a certification of compliance status with ‘‘gatekeepers’’, that units potentially and believes that exclusion of these respect to all applicable requirements. subject to applicable requirements are items would unduly hamper a EPA is concerned in particular that the included in permit applications. In reviewer’s ability to verify whether the compliance certification be a binding, addition to insignificant activity lists or source has correctly identified all regulatory requirement upon the source. threshold levels with appropriate applicable requirements in its The State asserts that, because its emissions limitations, a State’s program application. regulations require sources to provide must provide, as required in 40 CFR Therefore, as a condition of full the information specified in the 70.5(c), that an application may not approval for both programs, the State application form, and because the omit information needed to determine and the County must provide a application form submitted for approval the applicability of and to impose demonstration that adequately as part of the State’s title V program applicable requirements, and to collect quantifies the potential emissions requires a compliance certification, the fees. If a state or local agency’s (based on maximum capacity or on compliance certification is a regulatory permitting regulations include this specified size/operational limitations) requirement that is binding upon the ‘‘gatekeeper’’ language, and the from each of the activities and emission source. EPA finds this explanation insignificant activities list and generic units listed in Paragraphs 1200–3–9–.04 plausible, but seeks confirmation in the threshold levels are reasonable (that is, (1) and (4) sufficient to allow EPA to form of a legal opinion from the State. if they are not on their face likely to determine that exclusion of the Therefore, as a condition of full interfere with the determination and activities and units from permit approval for both programs, EPA is imposition of applicable requirements), applications will not interfere with the requesting that the State and the County then EPA will approve the insignificant determination and imposition of clarify in supplemental legal opinions activities provisions. applicable requirements. In the Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Proposed Rules 9665 alternative, the State and the County above with regards to the initially compliance requirements contained in could specifically limit the emissions submitted Rule 1200–3–9–.04, namely the permit, to the type of emission unit from each listed activity and emissions that the rule would authorize excluding and applicable requirement in question. unit to the recommended 5 tpy for insignificant activities from major EPA has discussed this issue regulated air pollutants and 1000 source applicability determinations or previously in the interim approval pounds per year for HAPs. In addition, from other requirements of part 70 for notices on the State of Washington’s Rule 1200–3–9–.04 must be revised to units that are listed as insignificant but title V program (see 60 FR 50166 include ‘‘gatekeeper’’ language that are in fact subject to applicable (September 28, 1995) and 60 FR 62992 consistent with that in 40 CFR 70.5(c), requirements. (December 8, 1995)). This issue is also as discussed above, and to remove any Therefore, as conditions of full addressed in the July 10, 1995 guidance language implying that insignificant approval for both programs, the State memorandum entitled ‘‘White Paper for activities may be excluded from major and the County must complete the Streamlined Development of Part 70 source applicability determinations. following: Permit Applications’’ from Lydia On August 8, 1995, the State of (1) Provide a demonstration that Wegman, Deputy Director of EPA’s Tennessee supplemented Rule 1200–3– adequately quantifies the potential Office of Air Quality Planning and 9–.04 in its title V program with emissions (based on maximum capacity Standards, to the EPA Regional Air Paragraph 1200–3–9–.04(5) entitled or on specified size/operational Directors. EPA is committed to issuing ‘‘Major Source Operating Permits limitations) from each of the activities additional guidance to aid state and Insignificant Emission Units’’, which and emission units listed in local permitting authorities in drafting became state-effective on August 26, Subparagraphs 1200–3–9–.04(5) (f) and permits which comply with the permit 1995. Memphis-Shelby County has not (g) sufficient to allow EPA to determine content requirements of 40 CFR 70.6 for yet formally supplemented its title V that exclusion of the activities and units insignificant activities, and intends to program with Paragraph 1200–3–9– from permit applications will not issue such guidance in the very near .04(5), but the County is in the process interfere with the determination and future. of amending its code to include this imposition of applicable requirements. Therefore, as a condition of full paragraph. The County has informed In the alternative, the State and County approval for both programs, EPA that it will supplement its title V could specifically limit the emissions Subparagraph 1200–3–9–.04(5)(c)3. program with Paragraph 1200–3–9– from each listed activity and emissions must be revised to eliminate the .04(5) when the amended code is local- unit to the recommended 5 tpy for exemption from the monitoring, effective. regulated air pollutants and 1000 recordkeeping, reporting, and Paragraph 1200–3–9–.04(5) contains pounds per year for HAPs. certification requirements of 40 CFR two lists of insignificant emission units (2) Address the conflicts with 70.6 (a)(3) and (c) for sources subject to and activities. The list in Subparagraph applicable requirements that are generally applicable SIP requirements. 1200–3–9–.04(5)(f) includes more than discussed in the TSDs. In addition, Subparagraph 1200–3–9– 120 emission units and activities that (3) Remove the exemption from .04(5)(h) exempts increases in regulated are categorically exempt from permitting requirements contained in air pollutant emissions from permit permitting requirements and allowed to Subparagraph 1200–3–9–.04(5)(f) to amendment and modification be omitted from the permit application. ensure that the insignificant activities procedures. Because this provision The list in Subparagraph 1200–3–9– provisions are not broader than that conflicts with the requirements of 40 .04(5)(g) contains more than 23 emission allowed under 40 CFR 70.5(c), and CFR 70.7, it must be revised to be units and activities that are defined as include ‘‘gatekeeper’’ language consistent with the part 70 criteria for insignificant based on size or consistent with that in 40 CFR 70.5(c). administrative permit amendments and production rate. The units and activities In addition to the exemption from permit modifications as a condition of in the second list are required to be permitting in Subparagraph 1200–3–9– full approval for both programs. included in the permit application. .04(5)(f), the provisions of Subparagraph d. Permit Content. The State of Based on EPA’s review of Paragraph 1200–3–9–.04(5)(c)3. exempt sources Tennessee and Memphis-Shelby County 1200–3–9–.04(5), a number of the subject to generally applicable SIP title V programs, in Subparagraphs activities and emission units contained requirements from the monitoring, 1200–3–9–.02(11) (a) and (e), in the two lists either directly or recordkeeping, reporting, and substantially meet the requirements of potentially conflict with applicable certification requirements of 40 CFR 40 CFR 70.4 and 70.6 for permit content, requirements as defined in part 70, or 70.6 (a)(3) and (c). However, part 70 including operational flexibility and off- are so vaguely or broadly articulated does not exempt insignificant activities permit changes. However, Subparagraph that EPA cannot determine whether a and emission units subject to applicable 1200–3–9–.02(11)(b) entitled conflict or potential conflict exists. requirements from the permit content ‘‘Definitions’’ contains the following Obvious conflicts that were noted by requirements of 40 CFR 70.6. That is to restriction: EPA are discussed in the say, although insignificant activities ‘‘All references in this paragraph to the aforementioned TSDs. However, EPA may be omitted from description in the Federal Act or to federal regulations or could not adequately evaluate the two permit application, nothing in part 70 requirements shall be to (i) that Act and those lists because neither the State or the allows the permitting authority to issue regulations and requirements as in effect on County submitted information permits that exempt the source from December 15, 1993, and (ii) any other federal quantifying the potential emissions from compliance certification or (as regulations or requirements to the extent that the listed activities and units, or the appropriate) monitoring, recordkeeping, they are adopted and are effective as Rules criteria that were used to determine the and reporting required under 40 CFR of the State of Tennessee. insignificant activities and emission 70.6 for all emissions units subject to This restriction applies to all Federal units. And, because the rule purports to applicable requirements. Part 70 does, requirements referenced in Paragraph exclude activities and emission units however, allow permitting authorities 1200–3–9–.02(11), including the listed in Subparagraph 1200–3–9– the flexibility to tailor the amount and definition of ‘‘Applicable requirement’’ .04(5)(f) from permitting requirements, quality of information required in the in Subparagraph 1200–3–9–.02(11)(b). EPA has the same concerns as discussed permit application, and the rigor of The State’s and County’s definition of 9666 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Proposed Rules

‘‘Applicable requirement’’ is, therefore, respect to the reporting of deviations. The State of Tennessee and Memphis- not equivalent to the part 70 definition Instead, Subparagraph 1200–3–9– Shelby County have the authority to because it restricts the domain of .02(11)(e)1.(iii)(III)II. references the issue variances from the requirements applicable requirements to those in provisions of Rule 1200–3–20–.03 to imposed by State and County law. The effect before a certain date. As a result, define ‘‘prompt reporting’’. Rule 1200– State has discretion, pursuant to T.C.A. neither program ensures that issued 3–20–.03 specifies that in the event of Section 68–201–118, to grant relief from permits will address all applicable a malfunction, a source shall notify the compliance with State statutes and requirements in accordance with 40 State and the County by telephone rules. The County has discretion, CFR 70.6(a). Subparagraph 1200–3–9– within 24 hours of the malfunction. The pursuant to Section 3–10 of the Shelby .02(11)(b) must be revised for notification must contain a statement County Code, to grant relief from consistency with part 70 as a condition giving all pertinent facts, including the compliance with County statutes and of full approval for both programs. estimated duration of the malfunction. rules. EPA regards these provisions as The State and County program Chapter 1200–3–20, which contains wholly external to the programs submittals, in Subparagraph 1200–3–9– Rule 1200–3–20–.03, was included in submitted for approval under part 70, .02(11)(e)4., provide for the issuance of the State’s title V program submittal, but and consequently proposes to take no general permits. However, this not in the County’s submittal. The action on these provisions of State and provision allows a source to operate County clarified, in a letter dated County law. without an appropriate title V permit February 7, 1996, that the prompt EPA has no authority to approve and not be subject to enforcement reporting provision of Rule 1200–3–20– provisions of state and local law, such action. Subparagraph 1200–3–9– .03 is effective in all of the County’s as the variance provisions referred to .02(11)(e)4. initially indicates that a jurisdictions. above, that are inconsistent with title V. source shall be subject to enforcement Subparagraph 1200–3–9- EPA does not recognize the ability of a action if it operates under a general .02(11)(e)1.(iii)(III)II. also references permitting authority to grant relief from permit but is later found not to qualify Chapter 1200–3–20 to define deviations the duty to comply with a Federally for a general permit. However, the next from permit conditions, such as upset, enforceable title V operating permit, sentence states that if the source is malfunction, or emergency conditions. except where such relief is granted required to have an individual permit, However, Paragraph 1200–3–20-.06(5) through the procedures allowed by part the permit shield will apply until the identifies a number of different 70. A title V permit may be issued or individual permit becomes effective, exceedances that will not be considered revised (consistent with part 70 which relieves the source from liability. by the State as violations. This permitting procedures) to incorporate Because this provision conflicts with 40 provision conflicts with part 70, which those terms of a variance that are CFR 70.6(d)(1), it must be changed as a requires that any emissions not consistent with applicable condition of full approval of the State permitted at a source be in violation of requirements. A title V permit may also and County programs. permit terms and conditions. incorporate, via part 70 permit issuance Part 70 requires prompt reporting of Specifically, 40 CFR 70.6(g) classifies or modification procedures, the deviations from the permit excess emissions due to emergency schedule of compliance set forth in a requirements. Section 70.6(a)(3)(iii)(B) situations as a violation of an existing variance. However, EPA reserves the requires the permitting authority to permit, and allows the State to provide right to pursue enforcement of define ‘‘prompt’’ in relation to the an affirmative defense in certain applicable requirements degree and type of deviation likely to circumstances. notwithstanding the existence of a occur and the applicable requirements. If a regulation such as Chapter 1200– compliance schedule in a permit to Although the permit program 3–20 is approved into the SIP, it operate. This interpretation is consistent regulations should define ‘‘prompt’’ for becomes a part of an applicable with 40 CFR 70.5(c)(8)(iii)(C), which purposes of administrative efficiency requirement and therefore may function states that a schedule of compliance and clarity, an acceptable alternative is with respect to that requirement or ‘‘shall be supplemental to, and shall not to define ‘‘prompt’’ in each individual requirements of which it is a part. This sanction noncompliance with, the permit. EPA believes that ‘‘prompt’’ would be true even after the applicable applicable requirements on which it is should generally be defined as requiring requirement is incorporated into the based.’’ reporting within two to ten days of the permit. However, the version of Chapter The State of Tennessee and Memphis- deviation. Two to ten days is sufficient 1200–3–20 contained in the State’s title Shelby County title V program time in most cases to protect public V program submittal is not approved submittals contain provisions for the health and safety as well as to provide into the Tennessee SIP. More issuance of Federally enforceable state a forewarning of potential problems. For importantly, from the standpoint of part and local minor source operating sources with a low level of excess 70, Chapter 1200–3–20 is on its face permits to limit an air pollution source’s emissions, a longer time period may be limited to SIP requirements. It would, potential to emit. Limiting a source’s acceptable. However, prompt reporting therefore, affect the definition of potential to emit through Federally must be more frequent than the violations for any applicable enforceable minor source operating semiannual reporting requirement, requirement incorporated into the permits can affect the applicability of given this is a distinct reporting permit, including those that the State Federal regulations to a source, obligation under section has no authority to change, such as including the regulations governing title 70.6(a)(3)(iii)(A). Where ‘‘prompt’’ is Federal standards. To remedy this V operating permits, New Source defined in the individual permit but not inconsistency with part 70, and as a Review (NSR) preconstruction permits, in the program regulations, EPA may condition of full program approval, the Prevention of Significant Deterioration veto permits that do not contain State must revise Chapter 1200–3–20 to (PSD) preconstruction permits for sufficiently prompt reporting of clarify that it applies only with respect criteria pollutants, and Federal air deviations. to requirements in the SIP. Furthermore, toxics requirements mandated under The State of Tennessee and Memphis- the revised rule must be submitted to section 112 of the CAA. Shelby County have not defined EPA for approval into the Tennessee EPA promulgated the criteria for ‘‘prompt’’ in their title V programs with SIP. Federal enforceability of minor source Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Proposed Rules 9667 operating permits in the Federal title V programs, in T.C.A. Sections 68– Tennessee Air Pollution Control Register on June 28, 1989 (see 54 FR 201–101 et seq., address the Regulations. EPA has determined that 22274). One of the criteria is EPA’s requirements of 40 CFR 70.11 with this legal authority is sufficient to allow approval of the minor source operating respect to enforcement authority. the State and the County to issue permit program into the State permits that assure compliance with all 4. Permit Fee Demonstration Implementation Plan (SIP). Both the section 112 requirements. State of Tennessee and Memphis-Shelby Section 502(b)(3) of the Act requires EPA is interpreting the above legal County have submitted the provisions each permitting authority to collect fees authority to mean that the State of for issuing Federal enforceable minor sufficient to cover all reasonable direct Tennessee and Memphis-Shelby County source operating permits as SIP and indirect costs necessary for the are able to carry out all section 112 revisions. Therefore, EPA is not taking development and administration of its activities with respect to part 70 and action in this notice on the ‘‘opt out’’ title V operating permit program. Each non-part 70 sources. For further provisions contained in Paragraph title V program submittal must contain rationale on this interpretation, please 1200–3–9-.02(11)(1) as part of either the either a detailed demonstration of fee refer to the aforementioned TSDs. State or the County title V program. adequacy or a demonstration that Both program submittals contain Both program submittals contain aggregate fees collected from title V Chapter 1200–3–32 entitled ‘‘Prevention Paragraph 1200–3–9-.02(4) entitled sources meet or exceed $25 per ton of of Accidental Releases’’, which was ‘‘Permits for Non-Complying Sources’’, emissions per year (adjusted from 1989 promulgated by the State and adopted which is an approved SIP rule that does by the Consumer Price Index (CPI)). The by the County to implement the $25 per ton is presumed, for program not address any part 70 requirements. provisions of section 112(r) of the Act. approval, to be sufficient to cover all Moreover, the version of the rule However, EPA has not yet promulgated reasonable program costs and is thus included in the submittals contains a Federal rule to implement the referred to as the ‘‘presumptive revisions that have not yet been provisions of section 112(r), so the State minimum’’. submitted for incorporation in either the and County rules may not be equivalent State of Tennessee’s or Memphis-Shelby Both the State of Tennessee and Memphis-Shelby County have elected to to the final Federal rule. Therefore, EPA County’s SIP. EPA has provided is not taking action in this notice on comments to the State on the revised assess title V operating permit fees below the Federal presumptive Chapter 1200–3–32 as part of either the version of the rule, but the comments State or the County title V program. have not yet been addressed by the minimum fee amount, and both program b. Implementation of Section 112(g) State. EPA is, therefore, not taking submittals contained Workload During Transition Period EPA issued an action on Paragraph 1200–3–9-.02(4) as Analyses satisfying the 40 CFR interpretive notice on February 14, 1995 part of either the State or the County 70.9(b)(5) requirement for detailed fee (60 FR 8333), which outlines the title V program. demonstrations. The fee demonstrations e. Permit Processing and Review. The showed that the fees collected will Agency’s revised interpretation of State of Tennessee and Memphis-Shelby adequately cover the anticipated costs of section 112(g) applicability. The notice County title V programs, in the State and the County operating postpones the effective date of section Subparagraph 1200–3–9-.02(11)(f) and permit programs for the years 1995 112(g) until after EPA has promulgated (g), substantially meet the permit through 1999. a rule addressing that provision. The processing and review requirements of The specified activities that constitute notice explains that EPA is considering 40 CFR 70.7 (including minor permit the State’s program are consistent with whether the effective date of section modifications and public participation) 40 CFR 70.9(b)(1), but the County’s fee 112(g) should be delayed beyond the and 70.8. However, the State’s and provisions allow use of the operating date of promulgation of the Federal rule County’s permit reopenings provisions permit fees for any purpose rather than so as to allow permitting authorities for HAP sources are not consistent with solely for the funding of title V program time to adopt rules implementing the part 70 requirements. activities in accordance with 40 CFR Federal rule, and that EPA will provide According to Subparagraph 1200–3– 70.9(a). Moreover, the County’s program for any such additional delay in the 31-.04(1)(a), the State and the County does not specify that the fees used to final section 112(g) rulemaking. A will call applications for permit cover the direct and indirect costs of the detailed discussion of the rationale for revisions when EPA promulgates new operating permit program will be the revised interpretation is included in maximum achievable control collected only from part 70 sources, as the February 14, 1995 notice. technology (MACT) standards. Sources required by 40 CFR 70.9(a). Memphis- Unless and until EPA provides for an will have 360 days to submit Shelby County, therefore, must revise its additional postponement of the section applications, and the permitting fee provisions to be consistent with the 112(g) effective date, the State of authority shall issue the permit revision part 70 requirements as a condition of Tennessee and Memphis-Shelby County within 18 months of the date the full program approval. must have Federally enforceable application is deemed complete. This mechanisms for implementing section provision conflicts with 40 CFR 5. Provisions Implementing 112(g) during the period between 70.7(f)(1)(i), which requires completion Requirements of Other Titles of the Act promulgation of the Federal section of permit reopenings not later than 18 a. Authority for Section 112 112(g) rule and adoption of months after promulgation of a new Implementation. In the title V program implementing State and County applicable requirement in cases of submittals, the State of Tennessee and regulations. Both program submittals permits with remaining terms of three or Memphis-Shelby County demonstrate contain Chapter 1200–3–31 entitled more years. As a result, Subparagraph adequate legal authority to implement ‘‘Case by Case Determinations of 1200–3–31-.04(1)(a) must be revised for and enforce all section 112 requirements Hazardous Air Pollutant Control consistency with part 70 requirements through title V permits. This legal Requirements’’, which will serve as an as a condition of full approval for both authority is contained in T.C.A. adequate implementation vehicle during programs. Sections 68–201–101 et seq., and in the transition period. Chapter 1200–3– f. Enforcement Authority. The State of Subparagraphs 1200–3–9–.02(11)(b)5. 31 became state-effective on September Tennessee and Memphis-Shelby County and 1200–3–9–.02(11)(c)(iii) of the 18, 1994, and the County adopted and 9668 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Proposed Rules incorporated it by reference on April 24, parts 61 and 63 for part 70 sources and 1995, January 29, 1996, February 7, 1995. non-part 70 sources.2 1996, and February 14, 1996. If this However, Chapter 1200–3–31 The State of Tennessee has informed interim approval is finalized, the contains several discrepancies with EPA that it intends to accept the changes identified below must be made respect to the provisions of section delegation of section 112 standards for full approval of the State and County 112(g) of the Act. As a condition of full under part 61 on a case-by-case basis programs. program approval, the State and the and the delegation of section 112 1. Opt-in Provision for Exempted County must correct the following standards under part 63 on an automatic Sources discrepancies in order to use this basis. The details of the State’s use of chapter to implement section 112(g) these delegation mechanisms are set Neither the State or the County during the transition period between forth in letters dated November 4, 1994, program addressed 40 CFR 70.3(b)(3), promulgation of the Federal section January 30, 1996, and February 13, which allows exempted sources to 112(g) rule and the adoption of 1996. apply for a permit. Justification of the equivalent State and County regulations: Memphis-Shelby County has omission of this part 70 provision is (1) The definition of ‘‘modification’’ informed EPA that it too intends to requested from the State and the in Paragraph 1200–3–31–.02(10) accept delegation of section 112 County. conflicts with the section 112(g) standards under part 61 on a case-by- case basis and the delegation of section 2. Certification of Compliance With definition regarding offsets. The State/ Applicable Requirements County definition indicates that 112 standards under part 63 on an increased emissions of one HAP may be automatic basis. The details of the Neither the State or the County offset by an equal or greater decrease of County’s use of these delegation program contains regulatory provisions another HAP that is deemed by the mechanisms are set forth in letters dated that require sources to certify permitting authority to be equal to or June 14, 1995, February 7, 1996, and compliance with all applicable more hazardous. However, according to February 14, 1996. requirements. EPA is, therefore, section 112(g)(1)(A), the offset must be d. Title IV Acid Rain Program requesting the State and the County to Requirements. The State of Tennessee by a HAP which is deemed to be more clarify in supplemental legal opinions promulgated Chapter 1200–3–30 to hazardous, and the determination must that their permitting regulations require implement the Phase II acid rain be based on guidance issued by the a source submitting an application for a permitting requirements of 40 CFR part Administrator under section title V permit to certify its compliance 72. This chapter became state-effective 112(g)(1)(B). status with regards to all applicable on September 13, 1994, and has been (2) According to Subparagraph 1200– requirements. In the alternative, the determined by EPA to be acceptable for 3–31–.05(1), the State and the County State and the County could revise their the purposes of administering an acid shall only make case-by-case regulations to directly incorporate this rain program. Memphis-Shelby County determinations for new sources in a requirement. adopted and incorporated the State’s source category scheduled for action Chapter 1200–3–30 by reference on 3. Insignificant Activities under sections 112(e)(1) and (3). April 24, 1995. The County’s acid rain As discussed above in section However, section 112(g) applies to all program has also been determined by II.A.3.c., the State and the County must major sources of HAPs, regardless of EPA to be acceptable for the purposes of complete the following: whether or not they have been included administering an acid rain program. a. Remove the exemptions from in a scheduled source category. permitting requirements contained in B. Proposed Actions c. Program for Delegation of Section Paragraphs 1200–3–9–.04(1) and (4), 112 Standards as Promulgated. The EPA proposes interim approval of the and in Subparagraph 1200–3–9– requirements for title V program title V operating permit program .04(5)(f), and include ‘‘gatekeeper’’ approval, specified in 40 CFR 70.4(b), submitted by the Tennessee Department language consistent with that in 40 CFR encompass section 112(l)(5) of Environment and Conservation on 70.5(c). requirements for approval of an November 10, 1994, and as b. Revise Subparagraph 1200–3–9– operating permit program for delegation supplemented on December 5, 1994, .04(5)(c)3. to eliminate the exemption of section 112 standards promulgated by August 8, 1995, January 17, 1996, from the monitoring, recordkeeping, EPA as they apply to title V sources. January 30, 1996, and February 13, reporting, and certification requirements Section 112(l)(5) requires that operating 1996. EPA also proposes interim of 40 CFR 70.6(a)(3) and (c) for sources permit programs contain adequate approval of the title V program subject to generally applicable SIP authorities, adequate resources for submitted by the Memphis-Shelby requirements. implementation, and expeditious County Health Department on June 26, c. Provide a demonstration that compliance schedules, which are also 1995, and as supplemented on August adequately quantifies the potential requirements under part 70. Therefore, 22, 1995, August 23, 1995, August 24, emissions (based on maximum capacity EPA also proposes to approve, under or on specified size/operational section 112(l)(5) and 40 CFR 63.91, the 2 The radionuclide National Emission Standards limitations) from each of the activities State of Tennessee and Memphis-Shelby for Hazardous Air Pollutant (NESHAP) is a section 112 regulation and therefore, also an applicable and emission units listed in Paragraphs County programs for receiving requirement under the State operating permits 1200–3–9–.04(1) and (4), and delegation of section 112 standards and program for part 70 sources. There is not yet a Subparagraphs 1200–3–9–.04(5)(f) and programs that are unchanged from the Federal definition of ‘‘major’’ for radionuclide (g), sufficient to allow EPA to determine Federal rules as promulgated. In sources. Therefore, until a major source definition for radionuclide is promulgated, no source would that exclusion of the activities and units addition, EPA proposes to delegate to be a major section 112 source solely due to its from permit applications will not the State and the County all existing radionuclide emissions. However, a radionuclide interfere with the determination and standards and programs under 40 CFR source may, in the interim, be a major source under imposition of applicable requirements. part 70 for another reason, thus requiring a part 70 permit. EPA will work with the State in the In the alternative, the State and the development of its radionuclide program to ensure County could specifically limit the that permits are issued in a timely manner. emissions from each listed activity and Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Proposed Rules 9669 emissions unit to the recommended 5 the direct and indirect costs of the organized group or community, tpy for regulated air pollutants and 1000 operating permit program will be including any Alaska Native village, pounds per year for HAPs. collected only from part 70 sources, as which is Federally recognized as d. Address EPA’s concerns, as required by 40 CFR 70.9(a). Memphis- eligible for the special programs and discussed in the TSDs, about potential Shelby County, therefore, must revise its services provided by the United States conflicts of certain activities and fee provisions to be consistent with the to Indians because of their status as emission units listed in Paragraph part 70 requirements. Indians.’’ See section 302(r) of the CAA; 1200–3–9-.04(5) with applicable see also 59 FR 43956, 43962 (August 25, 9. Implementation of Section 112(g) requirements. 1994); 58 FR 54364 (October 21, 1993). During Transition Period e. Revise Subparagraph 1200–3–9- III. Administrative Requirements .04(5)(h) to be consistent with the Both the State and the County title V criteria in 40 CFR 70.7 for program submittals contain Chapter A. Request for Public Comments 1200–3–31 entitled ‘‘Case by Case administrative permit amendments and EPA requests comments on all aspects Determinations of Hazardous Air permit modifications. of this proposed interim approval. Pollutant Control Requirements’’. As Copies of the State of Tennessee and 4. Applicable Federal Requirements discussed above in section II.A.4.b., the Memphis-Shelby County title V program discrepancies between Chapter 1200–3– Subparagraph 1200–3–9-.02(11)(b) in submittals, and other information relied 31 and Federal requirements must be the State and County programs restricts upon for the proposed interim approval, addressed for EPA to approve this the domain of Federal requirements are contained in the dockets numbered mechanism of implementing section referenced in Paragraph 1200–3–9- TN–96–01 and TN-MEMP–96–01, 112(g) during the transition period .02(11) to those in effect on December which are maintained at the EPA Region between Federal 112(g) rule 15, 1993. As a result, neither program 4 office. These dockets are organized promulgation and adoption of ensures that issued permits will address and complete files of all the information appropriate State and County rules. all applicable requirements in submitted to, or otherwise considered accordance with 40 CFR 70.6(a). In addition, as discussed above in section II.A.4.c., EPA proposes approval by, EPA in the development of this Subparagraph 1200–3–9-.02(11)(b) must notice. The principal purposes of the therefore be revised for consistency with under section 112(l)(5) and 40 CFR 63.91 to the State of Tennessee and docket are: part 70. (1) to allow interested parties a means Memphis-Shelby County programs for to identify and locate documents so that 5. General Permits receiving delegation of section 112 they can effectively participate in the standards and programs that are Subparagraph 1200–3–9-.02(11)(e)4. approval process, and in both programs provides for the unchanged from Federal rules as (2) to serve as the record in case of issuance of general permits. However, promulgated. EPA also proposes to judicial review. EPA will consider any this provision allows a source to operate delegate existing standards and comments received by April 10, 1996. without an appropriate title V permit programs under 40 CFR parts 61 and 63 and not be subject to enforcement for both part 70 sources and non-part 70 B. Executive Order 12866 action. This provision must be revised sources. The Office of Management and Budget for consistency with the requirements of This interim approval, which may not has exempted this action from Executive 40 CFR 70.6(d)(1). be renewed, extends for a period of up Order 12866 review. to two years. During the interim 6. Excess Emissions Due to Malfunction, approval period, the State of Tennessee C. Regulatory Flexibility Act Startup, and Shutdown and Memphis-Shelby County are EPA’s actions under section 502 of the The State must revise Chapter 1200– protected from sanctions for failure to Act do not create any new requirements, 3–20 to make clear that it applies only have programs, and EPA is not obligated but simply address operating permit with respect to the requirements in the to promulgate Federal operating permit programs submitted to satisfy the Tennessee SIP, and the revised rule programs in the State or the County. requirements of 40 CFR part 70. Because must be submitted to EPA for approval Permits issued under a program with this action does not impose any new in the SIP. interim approval are fully effective with requirements, it does not have a respect to part 70, and the one-year time significant impact on a substantial 7. Permit Reopenings period for submittal of permit number of small entities. Subparagraph 1200–3–31-.04(1)(a) applications by subject sources begins D. Unfunded Mandates Reform Act of must be revised in both programs for upon the effective date of interim 1995 consistency with the permit reopening approval, as does the three-year time requirements in 40 CFR 70.7(f)(1)(i), period for processing the initial permit Under section 202 of the Unfunded which requires completion of permit applications. Mandates Reform Act of 1995 reopenings not later than 18 months The scope of the State of Tennessee (‘‘Unfunded Mandates Act’’), signed after promulgation of a new applicable and Memphis-Shelby County title V into law on March 22, 1995, EPA must requirement in cases of permits with programs that EPA proposes to prepare a budgetary impact statement to remaining permit terms of three or more interimly approve in this notice applies accompany any proposed or final rule years. to all part 70 sources (as defined in the that includes a Federal mandate that approved program) within the ninety- may result in estimated costs to State, 8. Use of Title V Fees one counties under the State’s local, or tribal governments in the Memphis-Shelby County’s fee jurisdiction and in Shelby County, aggregate, or to the private sector, of provisions allow for use of operating except any sources of air pollution over $100 million or more. Under section permit fees for any purpose rather than which an Indian Tribe has jurisdiction. 205, EPA must select the most cost- solely for the funding of title V program See, e.g., 59 FR 55813, 55815–18 effective and least burdensome activities, as required by 40 CFR 70.9(a). (November 9, 1994). The term ‘‘Indian alternative that achieves the objectives Moreover, the County’s program does Tribe’’ is defined under the Act as ‘‘any of the rule and is consistent with not specify that the fees used to cover Indian tribe, band, nation, or other statutory requirements. Section 203 9670 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Proposed Rules requires EPA to establish a plan for U.S.-flag vessel to a foreign destination. Prior Rulemaking informing and advising any small This provision would allow U.S. Great On August 8, 1994, MARAD governments that may be significantly Lakes ports to compete for certain bulk published a final rule on this subject in or uniquely impacted by the rule. agricultural commodity preference the Federal Register (59 FR 40261). That EPA has determined that the cargoes under agricultural assistance rule stated that it was intended to allow proposed interim approval action programs administered by the U.S. U.S. Great Lakes ports to participate promulgated today does not include a Department of Agriculture (USDA) and with ports in other U.S. port ranges in Federal mandate that may result in the U.S. Agency for International the carriage of bulk agricultural estimated costs of $100 million or more Development (USAID). MARAD issued commodity preference cargoes. substantially identical rules in 1994 and to State, local, or tribal governments in Dramatic changes in shipping 1995 related to the Great Lakes Shipping the aggregate, or to the private sector. conditions have occurred since 1960, season for each of those years, This Federal action approves pre- including the disappearance of any all- respectively. This rule would extend the existing requirements under State or U.S.-flag commercial ocean-going bulk provision for an additional five years, local law, and imposes no new Federal cargo service to foreign countries from after which the Agency would assess the requirements. Accordingly, no U.S. Great Lakes ports. The static merits of making the rule permanent. additional costs to State, local, or tribal configuration of the St. Lawrence governments, or to the private sector, DATES: Comments must be received on Seaway system and the evolving greater result from this action. or before April 10, 1996. size of commercial vessels contributed List of Subjects in 40 CFR Part 70 ADDRESSES: Send original and two to the disappearance of any all-U.S.-flag copies of comments to the Secretary, service. Environmental protection, Maritime Administration, Room 7210, Administrative practice and procedure, No bulk grain preference cargo has Department of Transportation, 400 7th moved on U.S.-flag vessels out of the Air pollution control, Environmental Street S.W., Washington, D.C. 20590. To protection, Intergovernmental relations, Great Lakes since 1989, with the expedite review of comments, MARAD exception of one trial shipment in 1993. Operating permits, and Reporting and requests, but does not require recordkeeping requirements. Under the Food Security Act of 1985, submission of an additional ten (10) Public Law 99–198, codified at 46 App. Authority: 42 U.S.C. 7401–7671q. copies. All comments will be made U.S.C. 1241f(c)(2), a certain minimum Dated: February 26, 1996. available for inspection during normal amount of Government-impelled cargo Phyllis P. Harris, business hours at the above address. was required to be allocated to Great Acting Regional Administrator. Commenters wishing MARAD to Lakes ports during the Great Lakes acknowledge receipt of comments [FR Doc. 96–5720 Filed 3–8–96; 8:45 am] shipping seasons of 1986, 1987, 1988 should enclose a self-addressed BILLING CODE 6560±50±P and 1989. That ‘‘set-aside’’ expired in envelope or postcard. 1989, and was not renewed by the FOR FURTHER INFORMATION CONTACT: John Congress. The disappearance of E. Graykowski, Deputy Maritime DEPARTMENT OF TRANSPORTATION Government-impelled agricultural cargo Administrator for Inland Waterways and flowing from the Great Lakes coincided Maritime Administration Great Lakes, Maritime Administration, with the expiration of the Great Lakes Washington, DC, 20590, Telephone ‘‘set aside.’’ 46 CFR Part 381 (202) 366–1718. At the time of the opening of the 1994 SUPPLEMENTARY INFORMATION: United [Docket No. R±165] Great Lakes shipping season on April 5, States law at sections 901(b) and 901b, 1994, the Great Lakes did not have any RIN 2133±AB25 Merchant Marine Act, 1936, as amended all-U.S.-flag ocean freight capability for (the ‘‘Act’’), 46 App. U.S.C. 1241(b) and carriage of bulk preference cargo. In Cargo PreferenceÐU.S.-Flag Vessels; 1241f, requires that at least 75 percent contrast, the total export nationwide by Available U.S.-Flag Commercial of certain agricultural product cargoes non-liner vessels of USDA and USAID Vessels ‘‘impelled’’ by Federal programs agricultural assistance program cargoes AGENCY: Maritime Administration, (preference cargoes), and transported by subject to cargo preference in the 1994– Transportation. sea, be carried on privately-owned 1995 cargo preference year (the latest ACTION: Proposed rule. United States-flag commercial vessels, program year for which figures are to the extent that such vessels ‘‘are available) amounted to 6.2 million SUMMARY: This amendment to the cargo available at fair and reasonable rates.’’ metric tons, of which 4.9 million (78 preference regulations of the Maritime The Secretary of Transportation wishes percent) was transported on U.S.-flag Administration (MARAD) would to administer that program so that all vessels. provide that during the five year period ports and port ranges, including U.S. beginning with the 1996 Great Lakes Great Lakes ports, may participate in the Extension of Trial Period shipping season when the St. Lawrence carriage of preference cargoes under five MARAD initially issued that rule for Seaway is in use, MARAD will consider programs administered by the United the purpose of allowing Great Lakes the legal requirement for the carriage of States Department of Agriculture ports the opportunity to compete for bulk agricultural commodity preference (USDA) and United States Agency for agricultural commodity preference cargoes on privately-owned ‘‘available’’ International Development (USAID), cargoes for only the 1994 Great Lakes U.S.-flag commercial vessels to have pursuant to Titles I, II and III of the shipping season cargoes, and to assess been satisfied where the cargo is Agricultural Trade Development and the results. As predicted by numerous initially loaded at a Great Lakes port on Assistance Act of 1954, as amended, commenters, the timing of the final rule, one or more U.S.-flag or foreign-flag P.L. 480 (7 U.S.C. 1701–1727), the which was not published until August vessels, transferred to a U.S.-flag Agricultural Act of 1949, as amended (7 18, 1994, did not allow for a true trial commercial vessel at a Canadian U.S.C. 2791(c)) and the Food for period since it actually extended for less transshipment point outside the St. Progress Act of 1985, as amended (7 than one-half of the 1994 Great Lakes Lawrence Seaway, and carried on that U.S.C. 1736). Shipping season. Because of the long Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Proposed Rules 9671 lead time required for arranging Rulemaking Analyses and Notices § 381.9 Available U.S.-flag service. shipments of bulk agriculture For purposes of shipping bulk Executive Order 12866 (Regulatory commodity preference cargoes, there agricultural commodities under Planning and Review) apparently was no real opportunity for programs administered by sponsoring U.S.-flag vessel operators to make the This rulemaking is not considered to Federal agencies from U.S. Great Lakes necessary arrangements and bid on be an economically significant ports during the 1996–2000 Great Lakes preference cargoes. Accordingly, regulatory action under section 3(f) of shipping seasons, if direct U.S.-flag MARAD proposed to extend this policy Executive Order 12866, or a significant service, at fair and reasonable rates, is to the 1995 Great Lakes shipping season rule under the Department’s Regulatory not available at U.S. Great Lakes ports, and issued a final rule that was Policies and Procedures. Accordingly, it a joint service involving a foreign-flag published in the Federal Register on has not been reviewed by the Office of vessel(s) carrying cargo no farther than May 9, 1995 (60 FR 24560). Management and Budget. a Canadian port(s) or other point(s) on Great Lakes participation in cargo MARAD projects that this rule would the Gulf of St. Lawrence, with preference shipments under these five allow the annual movement of up to transshipment via a U.S.-flag privately programs administered by the USDA 300,000 metric tons of agricultural owned commercial vessel to the and USAID could be improved if commodities from Great Lakes ports, ultimate foreign destination, will be foreign-flag feeder vessels were with a reduction in the shipping cost to deemed to comply with the requirement authorized to transport bulk grain sponsoring Federal agencies of up to $3 of ‘‘available’’ commercial U.S.-flag commodities from Great Lakes ports to per metric ton ($900,000). service under the Cargo Preference Act Canadian transshipment points for If this rule is finalized, MARAD will of 1954. Shipper agencies considering export on oceangoing U.S.-flag bulk evaluate the results over that trial period bids resulting in the lowest landed cost carriers to the final destination port. before determining whether to issue a of transportation based on U.S.-flag rates MARAD issued its 1994 and 1995 final rule to make this provision permanent. and service shall include within the rules to authorize the use of foreign-flag Federalism comparison of U.S.-flag rates and feeder vessels for the transportation of service, for shipments originating in bulk agricultural commodities cargoes The Maritime Administration has U.S. Great Lakes ports, through rates (if from the Great Lakes ports to Canadian analyzed this rulemaking in accordance offered) to a Canadian port or other transshipment ports outside the St. with the principles and criteria point on the Gulf of St. Lawrence and Lawrence Seaway during the 1994–95 contained in Executive Order 12612, a U.S.-flag leg for the remainder of the Great Lakes shipping season. Outside and it has been determined that these voyage. The ‘‘fair and reasonable’’ rate the St. Lawrence Seaway, the cargo regulations do not have sufficient for this mixed service will be would be transferred to a U.S.-flag federalism implications to warrant the determined by considering the U.S.-flag vessel for delivery to its foreign preparation of a Federalism Assessment. component under the existing destination. Regulatory Flexibility Act regulations at 46 CFR Part 382 or 383, as appropriate, and incorporating the Subsequently, USDA indicated that The Maritime Administration certifies cost for the foreign-flag component into provisions in Pub. L. 480 regulating the that this rulemaking will not have a the U.S.-flag ‘‘fair and reasonable’’ rate payment of freight by USDA for the significant economic impact on a in the same way as the cost of foreign- Title II and Title III shipments, as well substantial number of small entities. as in the Food For Progress Act of 1985, flag vessels used to lighten U.S.-flag negatively impacted on suppliers that Environmental Assessment vessels in the recipient country’s bid on Great Lakes cargoes to be The Maritime Administration has territorial waters. Alternatively, the transshipped to Canadian shipping considered the environmental impact of supplier of the commodity may offer the points. USDA indicated that these this rulemaking and has concluded that Cargo FOB Canadian transshipment provisions prevent them from paying for an environmental impact statement is point, and MARAD will determine fair the foreign-flag Great Lakes transit leg, not required under the National and reasonable rates accordingly. even if the freight is billed separately. Environmental Policy Act of 1969. Dated: March 6, 1996. The Pub. L. 480 Title I program is not Paperwork Reduction Act By Order of the Maritime Administrator. affected by this provision. Due to these Joel Richard, statutory provisions, the Great Lakes This rulemaking contains no reporting Secretary, Maritime Administration. region has been, in effect, prohibited requirement that is subject to OMB [FR Doc. 96–5727 Filed 3–8–96; 8:45 am] from utilizing the rule and participating approval under 5 CFR Part 1320, in 54 percent, or 7.9 millon metric tons, pursuant to the Paperwork Reduction BILLING CODE 4910±81±P of the bulk cargo shipped during the Act of 1980 (44 U.S.C. 3501, et seq.) past two years under Titles II and III of Pub. L. 480, the Agricultural Act of 1949 List of Subjects in 46 CFR Part 381 FEDERAL COMMUNICATIONS and the Food for Progress Act of 1985 Freight, Maritime carriers. COMMISSION programs. Accordingly, MARAD hereby 47 CFR Part 76 USDA has proposed an amendment to proposes to amend 46 CFR part 381 as the 1995 Farm Bill which would allow follows: [CS Docket No. 96±40; FCC 96±84] USDA to pay the cost of the foreign-flag Great Lakes transit leg for transshipment PART 381Ð[AMENDED] Telecommunications Act of 1996 in Canadian ports. Consistent with the 1. The authority citation for Part 381 AGENCY: Federal Communications legislation proposed by the USDA continues to read as follows: Commission. provision in the 1995 Farm Bill, ACTION: Proposed rule. MARAD recommends that the rule be Authority: 46 App. U.S.C. 1101, 1114(b), extended for an additional five years, 1122(d) and 1241; 49 CFR 1.66. SUMMARY: The Commission is issuing after which it would reassess the merits 2. Section 381.9 would be revised to this Notice of Proposed Rulemaking in of making the rule permanent. read as follows: order to solicit comment on the proper 9672 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Proposed Rules implementation of Section 641 of the rearrange the content of the signal of the above, we believe the statute is clear Communications Act. This NPRM is programming so that the programming regarding the channels to which Section necessary to fulfill the statutory cannot be viewed or heard in an 641(a) applies, however, to the extent requirement in Section 505 of the understandable manner.’’ These parties disagree, they may comment on Telecommunications Act of 1996 that provisions take effect 30 days after the the appropriate definition of the Commission determine the hours of date of enactment of the 1996 Act, i.e., ‘‘channel * * * primarily dedicated to the day when a significant number of March 9, 1996. In an Order adopted sexually oriented programming.’’ children are likely to view sexually with this NPRM on March 4, 1996, the 4. Finally, we seek comment on any explicit adult programming or other Commission adopted a rule other issues relevant to proper indecent programming on any channel incorporating Section 641(a). We also implementation of Section 641. In of the service of a multichannel video established an interim rule particular, with respect to the programming distributor primarily implementing Section 641(b), providing requirement to ‘‘fully scramble or dedicated to sexually oriented that the programming described in otherwise fully block’’ sexually explicit programming if such programming is subsection (a) may not be provided adult programming or other not fully blocked or fully scrambled. between the hours of 6 a.m. and 10 p.m. programming that is indecent, are there This proceeding will permit the if not fully scrambled or fully blocked. differences in technology between Commission to issue final rules. This NPRM requests comment on MVPDs that would require different DATES: Comments are due on April 26, whether the interim rule should be rules? 1996. Replies are due on May 24, 1996. adopted as a final rule. Finally, we Initial Regulatory Flexibility Act request comment on other issues FOR FURTHER INFORMATION, CONTACT: Analysis Meryl S. Icove, Cable Services Bureau, regarding implementation and enforcement of these rules. 5. Pursuant to Section 603 of the (202) 416–0800. 2. We propose to adopt a final rule Regulatory Flexibility Act, the SUPPLEMENTARY INFORMATION: This is a establishing the hours between 6 a.m. Commission has prepared the following synopsis of the Notice of Proposed and 10 p.m. as the hours when sexually initial regulatory flexibility analysis Rulemaking in CS Docket No. 96–40, explicit adult programming or other (‘‘IRFA’’) of the expected impact of FCC 96–84, adopted March 4, 1996 and programming that is indecent on any these proposed policies and rules on released March 5, 1996. The complete channel primarily dedicated to sexually- small entities. Written public comments text of this Notice of Proposed oriented programming is prohibited if are requested on the IRFA. These Rulemaking is available for inspection not fully scrambled for nonsubscribers. comments must be filed in accordance and copying during normal business We tentatively conclude there are no with the same filing deadlines as hours in the FCC Reference Center relevant differences between broadcast comments on the rest of the NPRM, but (room 239), 1919 M Street, NW., and nonbroadcast delivery of they must have a separate and distinct Washington, DC, and also may be programming that justify adoption of a heading designating them as responses purchased from the Commission’s copy different rule. Commenters on this issue to the IRFA. The Secretary shall cause contractor, International Transcription are asked to provide specific data in a copy of the NPRM, including the Services, Inc. (‘‘ITS Inc.’’) at (202) 587– support of any assertions regarding the IRFA, to be sent to the Chief Counsel for 3800, 2100 M Street, NW., Suite 140, hours when children are likely to be Advocacy of the Small Business Washington, DC 20017. viewing this programming. Administration in accordance with Section 603(a) of the Regulatory Synopsis of Notice of Proposed 3. We note that the definition of Flexibility Act, Pub. L. No. 96–354, 94 Rulemaking indecent programming in the video programming context is well Stat. 1164, 5 U.S.C. 601 et seq. (1981). 1. On February 8, 1996, the established. The Commission defines 6. The Commission issues this NPRM Telecommunications Act of 1996 (‘‘1996 broadcast indecency as ‘‘language or pursuant to Section 505, Pub. L. No. Act’’), Pub. L. No. 104–104, 110 Stat. 56 material that, in context, depicts or 104–104, and seeks public comment on (1996), was enacted. Section 505 of the describes, in terms patently offensive as the implementation of that statutory 1996 Act amends the Communications measured by contemporary community provision. Objectives. Our goal in this Act by adding a new Section 641, standards for the broadcast medium, proceeding is to gather information to entitled ‘‘Scrambling of Sexually sexual or excretory activities or organs.’’ implement Congress’ directive that Explicit Adult Video Service Infinity Broadcasting Corporation of multichannel video programming Programming.’’ Section 641(a) requires Pennsylvania, 2 FCC Rcd 2705 (1987). distributors fully scramble or fully block that multichannel video programming The Commission has also defined sexually explicit adult programming or distributors (‘‘MVPDs’’) fully scramble indecency with respect to the use of other programming that is indecent on or fully block sexually explicit adult channel capacity on cable systems for any channel primarily dedicated to programming or other indecent leased access and public, educational sexually oriented programming so that programming on any channel of its and governmental access—indecent nonsubscribers do not receive it. We service primarily dedicated to sexually- programming is any programming that also must gather information so we can oriented programming so that a describes or depicts sexual or excretory determine the hours when significant nonsubscriber does not receive such activities or organs in a patently numbers of children are likely to view programming. Section 641(b) provides offensive manner as measured by such programming if not fully that, until the MVPD fully scrambles contemporary community standards for scrambled or fully blocked. Legal Basis. such programming, it may not provide the cable medium. See 47 CFR Authority for this proposed rulemaking such programming during the hours of 76.701(g), 76.702. We propose to use the is contained in Sections 4(i) and 641 of the day when a significant number of same definition for purposes of this the Communications Act of 1934, as children are likely to view such statutory provision. Because we read the amended, 47 U.S.C. 154(i), and in programming. Section 641(b) further term ‘‘sexually explicit adult Section 505 of the Telecommunications requires that the Commission determine programming’’ to be a subset of indecent Act of 1996, Pub. L. No. 104–104 (1996). those hours. Section 641(c) also programming, we do not believe that Description, Potential Impact and provides a definition of ‘‘scramble:’’ ‘‘to further definition is necessary. As noted Number of Small Entities Affected. The Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Proposed Rules 9673 rules proposed could affect certain Federal Rules which Overlap, Duplicate Proposed Rulemaking, and that small entities including multichannel or Conflict with these Rules. None. Any COMMENT IS SOUGHT regarding such video programming distributors who Significant Alternatives Minimizing proposals, discussions, and statement of choose to provide sexually explicit Impact on Small Entities and Consistent issues. adult programming or other with Stated Objectives. None. programming that is indecent on a 7. It is ordered that, pursuant to List of Subjects in 47 CFR Part 76 channel primarily dedicated to sexually- Sections 4(i) and 641 of the Cable television. oriented programming without fully Communications Act of 1934, as scrambling or fully blocking such amended, 47 U.S.C. 154(i), and Section Federal Communications Commission. programming during hours when it is 505 of the Telecommunications Act of William F. Caton, prohibited from doing so by the 1996, notice is hereby given of proposed Acting Secretary. amendments to Part 76, in accordance Commission. [FR Doc. 96–5870 Filed 3–8–96; 8:45 am] Reporting, Recordkeeping and Other with the proposals, discussions, and Compliance Requirements. None. statement of issues in this Notice of BILLING CODE 6712±01±P 9674

Notices Federal Register Vol. 61, No. 48

Monday, March 11, 1996

This section of the FEDERAL REGISTER This revision proposes amending only The Forest Supervisor of the contains documents other than rules or the Beaverland Forest Plan. The purpose Beaverhead-Deerlodge National Forests proposed rules that are applicable to the is to determine what combination of is the responsible official who will make public. Notices of hearings and investigations, goals, objectives and standards will the decision. She will decide on this committee meetings, agency decisions and restore and/or maintain riparian proposal after considering comments rulings, delegations of authority, filing of petitions and applications and agency function. and responses, environmental statements of organization and functions are DATES: The scoping period for this consequences discussed in the Final examples of documents appearing in this analysis ran from September 25 through EIS, and applicable laws, regulations, section. November 15, 1995. and policies. The decision and reasons ADDRESSES: Written comments were for the decision will be documented in sent to Deborah L.R. Austin, Forest a Record of Decision. DEPARTMENT OF AGRICULTURE Supervisor, Beaverhead-Deerlodge Dated: February 26, 1996. National Forests, 420 Barrett Street, Forest Service Deborah L.R. Austin, Dillon, MT 59725. Forest Supervisor, Beaverhead-Deerlodge Beaverhead Forest Plan Amendment; FOR FURTHER INFORMATION CONTACT: National Forests. Beaverhead-Deerlodge National Diane Petroni, Environmental Analysis [FR Doc. 96–5473 Filed 3–8–96; 8:45 am] Team Leader, Madison Ranger District, Forests; Beaverhead, Madison, BILLING CODE 3410±11±M Gallatin, Silver Bow, and Deer Lodge 5 Forest Service Road, Ennis, MT 59729, Counties, Montana or phone: (406) 682–4253. SUPPLEMENTARY INFORMATION: Further Grain Inspection, Packers and AGENCY: Forest Service, USDA. information about the proposed action, Stockyards Administration ACTION: Revised Notice; intent to issues, and how comments are used can prepare environmental impact be found in the original notice of intent. Deposting of Stockyards statement. The only change is the deletion of the Deerlodge portion of the Beaverhead- Notice is hereby given, that the SUMMARY: This is a revision of a Notice Deerlodge National Forests from the livestock markets named herein, of Intent originally published in the analysis. originally posted on the dates specified Federal Register by the Forest Service Another formal opportunity for below as being subject to the Packers (60 FR 49393), September 25, 1995. The response will be provided following and Stockyards Act, 1921, as amended original notice stated the Forest Service completion of a DEIS. The draft EIS (7 U.S.C. 181 et seq.), no longer comes will prepare an environmental impact should be available for review in within the definition of a stockyard statement (EIS) to amend both the November, 1996. The final EIS is under the Act and are therefore, no Beaverhead and Deerlodge Forest Plans scheduled for completion in August, longer subject to the provisions of the to include further riparian direction. 1997. Act.

Facility No., name, and location of stockyard Date of posting

AR 118 Harrison Stockyard Auction, Inc., Harrison, Arkansas ...... June 12, 1957. MD 108 Harry Rudnick & Sons, Inc., Galena, Maryland ...... October 21, 1959. MO 144 Kennett Sales Co., Inc., Kennett, Missouri ...... May 8, 1959. NC 142 Albemarle Marketing Association, Inc., Edenton, North Carolina ...... April 30, 1973. NC 166 Mountain Livestock Auction, Murphy, North Carolina ...... January 6, 1994. TN 180 M. L. Hickerson's Livestock Market, Manchester, Tennessee ...... April 19, 1982. VA 134 South Boston Livestock Market, Inc., South Boston, Virginia ...... March 10, 1959. VA 135 Lunenburg County Livestock Market, Inc., South Hill, Virginia ...... March 9, 1959. VA 139 Tappahanock Livestock Market, Inc., Tappahanock, Virginia ...... March 19, 1959.

This notice is in the nature of a Done at Washington, D.C., this 4th day of DEPARTMENT OF COMMERCE change relieving a restriction and, thus, March 1996. may be made effective in less than 30 Daniel L. Van Ackeren, Foreign-Trade Zones Board days after publication in the Federal Director, Livestock Marketing Division, [Docket 15±96] Register without prior notice or other Packers and Stockyards Programs. public procedure. This notice is given [FR Doc. 96–5708 Filed 3–8–96; 8:45 am] Foreign-Trade Zone 75ÐPhoenix, pursuant to section 302 of the Packers BILLING CODE 3210±KD±P Arizona; Application for Subzone; and Stockyards Act (7 U.S.C. 202) and PETsMART, Inc. is effective upon publication in the An application has been submitted to Federal Register. the Foreign-Trade Zones Board (the Board) by the City of Phoenix, Arizona, grantee of FTZ 75, requesting special- purpose subzone status for the Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices 9675 warehouse/distribution facility of Dated: February 29, 1996. hearing on April 4, 1996, 9:00 a.m., at PETsMART, Inc. (PETsMART), in John J. Da Ponte, Jr., Williams Gateway Airport, Phoenix, Arizona. The application was Executive Secretary. Administration Building (Bldg. #41) submitted pursuant to the provisions of [FR Doc. 96–5598 Filed 3–8–96; 8:45 am] Conference Room, 6001 South Power the Foreign-Trade Zones Act, as BILLING CODE 3510±DS±P Road, Mesa, Arizona. amended (19 U.S.C. 81a–81u), and the Public comment on the application is regulations of the Board (15 CFR part invited from interested parties. 400). It was formally filed on February [Docket 16±96] Submissions (original and 3 copies) 22, 1996. shall be addressed to the Board’s Proposed Foreign-Trade ZoneÐMesa, Executive Secretary at the address PETsMART operates over 250 retail Arizona; Application and Public below. The closing period for their stores in the U.S. that specialize in pet Hearing food, pet supplies and pet services receipt is May 10, 1996. Rebuttal (1995 sales—$1 bil.). It is planning to An application has been submitted to comments in response to material open stores in Canada, Europe and Latin the Foreign-Trade Zones Board (the submitted during the foregoing period America in 1996. Board) by the City of Mesa, Arizona, to may be submitted during the subsequent The proposal calls for subzone status establish a general-purpose foreign-trade 15-day period (to May 28, 1996). at PETsMART’s new regional zone in Mesa, Arizona, adjacent to the A copy of the application and warehouse/distribution center (614,000 Phoenix Customs port of entry. The accompanying exhibits will be available sq. ft. on 34.4 acres, currently under application was submitted pursuant to during this time for public inspection at construction) at 7600 West Latham the provisions of the Foreign-Trade the following locations: Street, Phoenix. The facility (100 Zones Act, as amended (19 U.S.C. 81a– MEGACORP, City of Mesa Economic employees) will be used to warehouse 81u), and the regulations of the Board Development, 100 North Center and distribute a variety of pet supplies (15 CFR Part 400). It was formally filed Street, Mesa, AZ 85201 including: dog and cat toys, collars and on February 28, 1996. The applicant is Office of the Executive Secretary, leashes, cages, books, vitamins, and authorized to make the proposal under Foreign-Trade Zones Board, Room aquatic and equestrian supplies. No Section 44–6501 of the Arizona Revised 3716, U.S. Department of Commerce, requests for manufacturing authority are Statutes. 14th & Pennsylvania Avenue, NW., being made at this time. The The proposed zone would be the Washington, DC 20230. distribution facility will serve company second general-purpose zone in the Dated: March 1, 1996. Phoenix Customs port of entry area. The retail stores in the U.S. and abroad. John J. Da Ponte, Jr., Zone procedures would exempt existing zone, FTZ 75, is located at the Phoenix Sky Harbor Center at Squaw Executive Secretary. PETsMART from Customs duty [FR Doc. 96–5599 Filed 3–8–96; 8:45 am] payments on the foreign items that are Peak Freeway and I–10 in Phoenix, reexported. On domestic sales, the adjacent to Sky Harbor International BILLING CODE 3510±DS±P company would be able to defer Airport (Grantee: City of Phoenix, Board Customs duty payments until the items Order 185, 47 FR 14931, 4/7/82). [Docket 17±96] are shipped from the facility. The The proposed foreign-trade zone application indicates that the zone would be located at Williams Gateway Foreign-Trade Zone 119ÐMinneapolis, savings would help improve the Airport (3,020 acres), formerly Williams MN; Application for Subzone Status; facility’s international competitiveness. Air Force Base, 6001 South Power Road, Plastic Products Company, Inc., In accordance with the Board’s Mesa, some 22 miles east of the Sky Facilities (Plastic In-Line Skates); regulations, a member of the FTZ Staff Harbor site. Approximately half of the Lindstrom and Princeton, Minnesota has been designated examiner to site involves existing airfield infrastructure, and the remaining area An application has been submitted to investigate the application and report to (approximately 1,400 acres) is available the Foreign-Trade Zones Board (the the Board. for industrial development. The site is Board) by the Greater Metropolitan Area Public comment is invited from currently leased to Williams Gateway Foreign Trade Zone Commission, interested parties. Submissions (original Airport Authority (WGAA) by the U.S. grantee of FTZ 119, requesting special- and 3 copies) shall be addressed to the Air Force, but the Air Force is in the purpose subzone status for the plastic Board’s Executive Secretary at the process of conveying title to the in-line skate manufacturing facilities of address below. The closing period for property to WGAA. Plastic Products Company, Inc. (PPCI), their receipt is May 10, 1996. Rebuttal The application contains evidence of located in Lindstrom and Princeton, comments in response to material the need for additional zone services in Minnesota. The application was submitted during the foregoing period the Mesa area. In addition to aerospace/ submitted pursuant to the provisions of may be submitted during the subsequent aviation related manufacturing, aircraft the Foreign-Trade Zones Act, as 15-day period (to May 28, 1996). maintenance and refurbishing, WGAA amended (19 U.S.C. 81a–81u), and the A copy of the application and plans to market the project as an regulations of the Board (15 CFR Part accompanying exhibits will be available international aerospace and aviation 400). It was formally filed on February for public inspection at each of the center. Specific manufacturing 29, 1996. following locations: approvals are not being sought at this The proposed subzone would consist U.S. Department of Commerce District time. Requests would be made to the of PPCI’s two manufacturing facilities in Office, Phoenix Plaza, Suite 970, 2901 Board on a case-by-case basis. east-central Minnesota: Site 1 (102,000 N. Central Avenue, Phoenix, Arizona In accordance with the Board’s sq.ft./6 acres)—30355 Akerson Street, 85012 regulations, a member of the FTZ Staff Lindstrom (Chisago County), Minnesota; Office of the Executive Secretary, has been designated examiner to and, Site 2 (168,000 sq.ft./8 acres)—610 Foreign-Trade Zones Board, Room investigate the application and report to Old South Highway 18, Princeton (Mille 3716, U.S. Department of Commerce, the Board. Lacs County), Minnesota. The facilities 14th & Pennsylvania Avenue, NW., As part of the investigation, the (350 employees) are used to produce Washington, DC 20230. Commerce examiner will hold a public plastic in-line skates for export and the 9676 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices domestic market. The production Whereas, an application from the Commerce, 14th Street and Constitution process involves injection molding and Greater Kansas City Foreign Trade Zone, Avenue, N.W., Washington, D.C. 20230, final assembly. Components purchased Inc., grantee of Foreign-Trade Zone 15, telephone: (202) 482–4697. from abroad (about 50% of total, by for authority to expand its general- SUPPLEMENTARY INFORMATION: Because it value) include: textile and vinyl liners purpose zone in the Kansas City, is not practicable to complete this (parts of footwear), footbeds, fasteners, Missouri, area was filed by the Board on review within the time limits mandated bearings, laces, wheels and wheel/ April 14, 1995 (FTZ Docket 15–95, 60 by Section 751(a)(3)(A) of the Trade and bearing assemblies, buckle assemblies, FR 19720, 4/20/95); and, Tariff Act of 1930, as amended by the strap assemblies (duty rate range: free— Whereas, notice inviting public Uruguay Round Agreements Act of 10.6%). comment was given in the Federal 1994, the Department is extending the Zone procedures would exempt PPCI Register and the application has been time limits for completion of the from Customs duty payments on the processed pursuant to the FTZ Act and preliminary results until July 12, 1996. foreign components used in the export the Board’s regulations; and, We will issue our final results for this production. On its domestic sales, the Whereas, the Board adopts the review by November 12, 1996. company would be able to choose the findings and recommendations of the duty rate that applies to finished in-line examiner’s report, and finds that the These extensions are in accordance skates (duty free) for the foreign inputs requirements of the FTZ Act and with section 751(a)(3)(A) of the Tariff noted above. The application indicates Board’s regulations are satisfied, and Act of 1930, as amended (19 U.S.C. that subzone status would help improve that the proposal is in the public 1675(a)(3)(A)). the plants’ international interest; Dated: February 22, 1996. competitiveness. Now, therefore, the Board hereby Roland L. MacDonald, In accordance with the Board’s orders: The application to expand FTZ 15 is Acting Deputy Assistant Secretary for regulations, a member of the FTZ Staff Compliance. approved, subject to the Act and the has been designated examiner to [FR Doc. 96–5595 Filed 3–8–96; 8:45 am] investigate the application and report to Board’s regulations, including Section BILLING CODE 3510±DS±P the Board. 400.28. Public comment on the application is Signed at Washington, DC, this 28th day of invited from interested parties. February 1996. [A±821±803] Submissions (original and three copies) Paul L. Joffe, shall be addressed to the Board’s Acting Assistant Secretary of Commerce for Titanium Sponge From Russia; Final Executive Secretary at the address Import Administration, Alternate Chairman, Results of Antidumping Duty below. The closing period for their Foreign-Trade Zones Board. Administrative Review receipt is May 10, 1996. Rebuttal Attest: comments in response to material John J. Da Ponte, Jr., AGENCY: Import Administration, submitted during the foregoing period Executive Secretary. International Trade Administration, may be submitted during the subsequent [FR Doc. 96–5597 Filed 3–8–96; 8:45 am] Commerce. 15-day period (to May 28, 1996). BILLING CODE 3510±25±P A copy of the application and the ACTION: Notice of Final Results of accompanying exhibits will be available Antidumping Duty Administrative for public inspection at each of the International Trade Administration Review. following locations: [A±122±506] U.S. Department of Commerce, District SUMMARY: On September 26, 1995, the Department of Commerce (the Office, 108 Federal Building, 110 Oil Country Tubular Goods From South 4th Street, Minneapolis, MN Department) published the preliminary Canada; Antidumping Duty results of review of the antidumping 55401 Administrative Review; Time Limits Office of the Executive Secretary, finding on titanium sponge from Russia Foreign-Trade Zones Board, U.S. AGENCY: Import Administration, (33 FR 12138, August 28, 1968). The Department of Commerce, Room International Trade Administration, review covers one manufacturer, 3716, 14th Street & Pennsylvania Commerce. Berezniki Titanium-Magnesium Works Avenue, NW., Washington, DC ACTION: Notice of extension of time (AVISMA), and exports of the subject 20230–0002. limits. merchandise to the United States for the period August 1, 1993 through July 31, Dated: March 1, 1996. SUMMARY: The Department of Commerce 1994. John J. Da Ponte, Jr., (the Department) is extending the time We gave interested parties an Executive Secretary. limits of the preliminary and final opportunity to comment on the [FR Doc. 96–5600 Filed 3–8–96; 8:45 am] results of the second antidumping duty preliminary results of review. Based on BILLING CODE 3510±DS±P administrative review of oil country our analysis of the comments received, tubular goods (OCTG) from Canada. The we have not changed the final results review covers one manufacturer/ from those presented in the preliminary [Order No. 804] exporter of the subject merchandise to results of review. the United States and the period June 1, Expansion of Foreign-Trade Zone 15, 1994 through May 31, 1995. EFFECTIVE DATE: March 11, 1996. Kansas City, Missouri, Area EFFECTIVE DATE: March 11, 1996. FOR FURTHER INFORMATION CONTACT: Pursuant to its authority under the FOR FURTHER INFORMATION CONTACT: David Genovese or Zev Primor, Office of Foreign-Trade Zones Act of June 18, David M. Genovese, Office of Antidumping Compliance, International 1934, as amended (19 U.S.C. 81a–81u), Antidumping Compliance, Import Trade Administration, U.S. Department the Foreign-Trade Zones Board (the Administration, International Trade of Commerce, Washington, DC 20230, Board) adopts the following Order: Administration, U.S. Department of telephone: (202) 482–5254. Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices 9677

SUPPLEMENTARY INFORMATION: the final destination of each of its sales States, such knowledge is insufficient to Background at the time of sale, it did know that a transform AVISMA’s export sales into substantial portion of its sales to sales of merchandise subject to the On August 31, 1994, Titanium Metals Interlink, an international trader, were antidumping duty order. Corporation (TIMET) a U.S. producer of destined for the United States. Citing to Petitioner further challenges titanium sponge, AVISMA a Russian Certain Stainless Steel Sheet and Strip Interlink’s suggestion that it is producer of titanium sponge, Interlink Products From the Federal Republic of ‘‘irrelevant and unnecessary’’ for the Metals and Chemicals, Inc., (Interlink) Germany; Final Determination of Sales Department to identify the particular an unrelated third country reseller of at Less Than Fair Value, 48 FR 20459 shipments that were resold to the titanium sponge, and RMI Titanium (May 6, 1983) (Stainless Steel), AVISMA United States in order to make a final Company (RMI), a U.S. importer of states that the Department has based the determination. Petitioner states that titanium sponge, requested an United States price on the purchase section 751(a)(2) of the Act explicitly administrative review of AVISMA’s price when a foreign producer selling requires that assessments and deposits sales of subject merchandise. The through a trading company knows that of estimated antidumping duties be Department initiated the review on part of the merchandise was destined based on entries of merchandise subject September 16, 1994 (59 FR 47609), for the United States at the time of to an antidumping duty order and that covering the period August 1, 1993, purchase. merchandise sold for export to through July 31, 1994. On September 26, AVISMA contends that its inability to destinations outside the United States is 1995, the Department published the identify particular shipments that were not subject to a U.S. antidumping duty preliminary results of review (60 FR resold in the United States is irrelevant order. 49576). The Department has now and unnecessary to the Department’s Department’s Position completed this review in accordance final determination. AVISMA argues with section 751 of the Tariff Act of that the Department’s requirement, as We disagree with respondents. 1930, as amended (the Act). Unless described in Television Receivers, Section 772(b) of the Act defines otherwise indicated, all citations to the Monochrome and Color, From Japan; purchase price as ‘‘the price at which statute and to the Department’s Final Results of Antidumping Duty merchandise is purchased, or agreed to regulations are in reference to the Administrative Review, 58 FR 11211 be purchased, prior to the date of provisions as they existed on December (February 24, 1993), that there be importation, from a reseller or the 31, 1994. knowledge of the destination of specific manufacturer or producer of the shipments is wrong. AVISMA states that merchandise for exportation to the Scope of the Review general knowledge of the destination of United States.’’ The Department has The merchandise covered by this sales should be enough under the consistently defined a U.S. sale as a sale review is titanium sponge from Russia. antidumping law. in which a manufacturer is informed in Titanium sponge is chiefly used for Petitioner, citing to Chrome-Plated advance that the merchandise is aerospace vehicles, specifically, in the Lug Nuts from Taiwan, (56 FR 36130, destined for the United States, or has construction of compressor blades and July 31, 1991) and Urea from the reason to know of the ultimate wheels, stator blades, rotors, and other U.S.S.R., (52 FR 19557, May 26, 1987), destination of the merchandise at the parts in aircraft gas turbine engines. respectively, argues that: (1) it is the time of sale, through special markings, Imports of titanium sponge are Department’s longstanding practice to market-specific specifications, or currently classifiable under the base U.S. price on sales by a producer shipping instructions. See, e.g., harmonized tariff schedule (HTS) to an unrelated trading company outside Antifriction Bearings (Other Than subheading 8108.10.50.10. The HTS the United States only when the Tapered Roller Bearings) and Parts subheading is provided for convenience producer knows at the time of sale that From France, et al.; Final Results of and U.S. Customs purposes; our written the merchandise is destined for the Antidumping Duty Administrative description of the scope of this finding United States; and, (2) the Department Review, (57 FR 28360, 28423, June 24, is dispositive. does not base U.S. price on sales to an 1992); Ferrovanadium and Nitride This review covers one manufacturer, unrelated trading company when the Vanadium From the Russian AVISMA, and the period August 1, 1993 producer does not know at the time of Federation; Notice of Final through July 31, 1994. sale that the merchandise is destined for Determination of Sales at Less Than the United States. Petitioner states that Fair Value, (60 FR 27957, May 26, Analysis of Comments Received in this case, AVISMA’s export sales 1995); Natural Bristle Paint Brush and We gave interested parties an were to unrelated companies for Brush Heads From the People’s opportunity to comment on the shipment to places outside the United Republic of China; Final Results of preliminary results. We received States and that AVISMA was not aware Antidumping Duty Administrative comments from the respondent and the of the final destination of the Review, (55 FR 42599, October 22, petitioner. At the request of AVISMA, merchandise it sold for export at the 1990); Television Receivers, Interlink, and RMI, we held a public time of sale. Petitioner states that under Monochrome and Color, From Japan; hearing on December 7, 1995. these circumstances, the U.S. price must Final Results of Antidumping Duty be based on the sale from the trading Administrative Review, (58 FR 11211, Comment 1 company to the U.S. purchaser, i.e., the February 24, 1993); Oil Country Tubular AVISMA argues that it had sufficient sale for export to the United States. Goods From Canada; Final Results of knowledge at the time of sale that at Petitioner, citing to Pure Magnesium Antidumping Duty Administrative least a portion of its sales were destined and Alloy Magnesium from the Russian Review, (55 FR 50739, December 10, for resale in the United States. AVISMA Federation, (60 FR 16440, March 30, 1990); Urea From the Union of Soviet argues that there is sufficient and 1995), further argues that even if Socialist Republics; Final Determination detailed evidence on the record in the AVISMA had a general knowledge that of Sales at Less Than Fair Value, (52 FR form of affidavits and letters of some unknown portion of the 19557, May 26, 1987); and, Pure correspondence to support its merchandise it exported might be Magnesium and Alloy Magnesium from contention that while it did not know entered for consumption in the United the Russian Federation; Final 9678 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices

Determination of Sales at Less Than request in the amount of the 83.96 percent. These deposit Fair Value, (60 FR 16440, March 30, antidumping duties deposited at the requirements, when imposed, shall 1995). time the merchandise entered the remain in effect until publication of the Furthermore, the Stainless Steel case United States. final results of the next administrative cited by AVISMA does not contradict Petitioner states that in this case, the review. the Department’s practice. While Department received a timely request This notice also serves as a final AVISMA suggests that it knew or should for review of a specified producer, reminder to importers of their have known that part of the AVISMA and that therefore, the responsibility under 19 CFR 353.26 to merchandise was destined for the assessment and deposit rates for all file a certificate regarding the United States, the record demonstrates other producers and resellers, including reimbursement of antidumping duties that AVISMA was not informed in Interlink, are determined by operation prior to liquidation of the relevant advance of the destination of the of law. Petitioner, citing to Chrome- entries during this review period. merchandise that it sold to Interlink nor Plated Lug Nuts from Taiwan, (56 FR Failure to comply with this requirement did it have reason to know of the 36130, July 31, 1991), argues that the could result in the Secretary’s ultimate destination of the merchandise Department does not, and in the context presumption that reimbursement of at the time of sale. Interlink, as an of an administrative review, it cannot antidumping duties occurred and the international trader of metals, sells review sales by an unrelated trading subsequent assessment of double titanium sponge to other countries as company unless it is asked to do so. antidumping duties. well as to the United States and Department’s Position This notice also serves as a reminder titanium sponge specifications are based to parties subject to administrative on world-wide standards in accordance We disagree with the respondent. protective orders (APOs) of their with its expected applications rather With respect to requests for review, responsibility concerning the than the ultimate destination of the section 353.22(a) of the Department’s disposition of proprietary information merchandise. regulations states that, ‘‘(e)ach year disclosed under APO in accordance during the anniversary month of the Comment 2 with 19 CFR 353.34(d). Timely written publication of an order * * * an notification of return/destruction of Respondent argues that the interested party * * * may request APO materials or conversion to judicial Department should review Interlink’s ** * an administrative review of protective order is hereby requested. sales to the United States because the specified individual producers or Failure to comply with the regulations request for review submitted on behalf resellers covered by an order (emphasis and the terms of an APO is a of AVISMA, Interlink, and RMI clearly added)’.’ For those producers or sanctionable violation. was intended to cover Interlink’s sales resellers for whom no review is This administrative review and notice to the United States during the period specifically requested, the Department are in accordance with section 751(a)(1) of review. Respondent states that the ‘‘will instruct the Customs Service to of the Act (19 U.S.C. 1675(a)(1)) and 19 submission on behalf of the three assess antidumping duties * * * on the CFR 353.22. companies requested the Department to merchandise not covered by the conduct a review of ‘‘AVISMA’s U.S. request.’’ 19 C.F.R. § 353.22(e)(2)(1995). Dated: February 29, 1996. sales subject to the antidumping duty In the instant case, interested parties Susan G. Esserman, order on titanium sponge from Russia.’’ (i.e., AVISMA, Interlink, RMI, and Assistant Secretary for Import Respondent states that since AVISMA is TIMET) only requested an Administration. a producer of titanium sponge, Interlink administrative review of AVISMA’s [FR Doc. 96–5596 Filed 3–8–96; 8:45 am] is an exporter of titanium sponge, and sales, not Interlink’s sales. Accordingly, BILLING CODE 3510±DS±P RMI is an importer of titanium sponge, since a review of Interlink’s sales was the clear intent of the request for review not requested by interested parties, such was to seek a review of AVISMA’s sales sales are not covered by this COMMODITY FUTURES TRADING to the United States through the only administrative review. COMMISSION exporter identified, Interlink. Final Results of Review Respondent argues that Interlink, in Chicago Mercantile Exchange seeking a review of AVISMA’s sales, Based on our analysis of the Proposed Rule Amendments To clearly intended for the Department to comments received, we have not Establish a Globex Foreign Exchange review Interlink’s shipments and that changed the final results from those Facility the Department cannot rationally presented in the preliminary results of construe the request for review in any review. Accordingly, we have AGENCY: Commodity Futures Trading other manner. determined that, consistent with the Commission. Petitioner argues that since AVISMA preliminary results, the margin for ACTION: Notice of proposed rule was the only party for which a review Russian titanium sponge that entered amendments of the Chicago Mercantile was requested it is the only party the the United States during the period of Exchange to establish a Globex Foreign Department is authorized by law to review will continue to be the rate from Exchange Facility. review. Petitioner states that 19 CFR the most recent review, which is 83.96 353.22(a) authorizes the Department to percent. The Department will issue SUMMARY: The Chicago Mercantile review only those producers or resellers appraisement instruction directly to the Exchange (‘‘CME’’ or ‘‘Exchange’’) has for which it has received a timely U.S. Customs Service. submitted proposed rule amendments request for review. Petitioner states that, Furthermore, as provided by section and other materials which would pursuant to 19 CFR 353.22(e)(2), if the 751(a)(1) of the Act, the cash deposit establish a wholly-owned subsidiary of Department does not receive a timely rate for all shipments of titanium sponge the Exchange which would function as request for review of a producer or from Russia, entered or withdrawn from a market maker for certain CME foreign resellers, antidumping duties are warehouse, for consumption on or after currency futures contracts traded automatically assessed on entries of the publication date of the final results merchandise not covered by the review of this administrative review, will be Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices 9679 through the Globex system.1 Acting other participant conducting incorporate automated support systems, pursuant to the authority delegated by transactions on the Exchange. including systems to track GFF audit Commission Regulation 140.96, the Operations of the Exchange, as a self- trails and performance. Division of Trading and Markets has regulatory organization, and the GFF, as The GFF Oversight Committee would determined to publish the CME a subsidiary entity, would be separated. have authority to establish and maintain proposal for public comment. The The GFF would have neither direct nor trading limits, internal controls, and risk Division believes that publication of the indirect access to Exchange information management safeguards. The GFF CME proposal is in the public interest on market positions or market exposures Oversight Committee also would have and will assist the Commission in of clearing firms and individuals. authority to halt trading operations of considering the views of interested The GFF would operate as a market the GFF or order liquidation of GFF persons. maker during the electronic trading positions at any time. The GFF DATES: Comments must be received on hours (‘‘ETH’’) session of the Globex Oversight Committee would or before April 10, 1996. system. GFF trading activities would be periodically report to the CME Board of confined to trading solely for the Directors. FOR FURTHER INFORMATION CONTACT: account of the GFF. GFF market making The GFF Risk Manager, the CME Clarence Sanders, Attorney, Division of operations would be available during clearing member firm carrying GFF Trading and Markets, Commodity two 81⁄4 hour shifts during the Globex positions, and CME Clearing House staff Futures Trading Commission, Three ETH session. would review GFF trading on a daily Lafayette Centre, 1155 21st Street NW., At inception, the GFF would be basis. Other CME staff would have Washington, DC 20581. Telephone: authorized to make markets in futures oversight authority to review books, (202) 418–5484. contracts for Deutsche marks, Japanese records, systems, and facilities of the SUPPLEMENTARY INFORMATION: yen, Swiss francs, and British pounds GFF. CME staff also would have traded through Globex. After a period of authority to review GFF trading activity I. Description of Proposed Rule time, however, the GFF also would be for potential regulatory violations or Amendments authorized to make markets in futures fraud. A. Purpose contracts in Australian dollars and II. Request for Comments Canadian dollars traded through Globex. By letters dated January 22, and As a market maker, the GFF would (i) The Commission requests comments February 1, 1996, the CME submitted maintain a two-sided market in the form on any aspect of the CME’s proposed proposed rule amendments pursuant to of current bid and ask price quotations rule amendments that members of the Section 5a(a)(12)(A) of the Commodity and (ii) satisfy bids or offers of other public believe may raise issues under the Act or Commission regulations. In Exchange Act (‘‘Act’’) and Commission market participants at the GFF’s current particular, the Commission requests Regulation 1.41(b). The proposed bid and ask prices. The GFF also would comments regarding the impact on amendments would establish a Globex execute transactions through Globex on competitive trading conditions; the Foreign Exchange Facility (‘‘GFF’’). a Request for Quote (‘‘RFQ’’) basis.3 The adequacy of safeguards designed to limit Under the proposal, the GFF would GFF would undertake to hedge its the Exchange’s exposure to financial function as a market maker for certain Globex-originated positions by risk; the implications for financial CME foreign currency futures contracts executing offsetting transactions in the 2 integrity and any consequent need for traded through the Globex system. The spot or forward interbank foreign the segregation of, or limitations on objective of the GFF would be to currency market. access to, information at the CME and augment the liquidity of certain Globex Market positions of the GFF would be the GFF; the need for safeguards to foreign currency futures contracts. In so carried on the books of a CME clearing address potential or actual conflicts of doing, the CME believes that the GFF member firm. Under such an interest arising out of the Exchange’s would help to ensure the presence of arrangement, the GFF would be a operation of the GFF; the need for relatively liquid markets and narrower customer of the carrying clearing restrictions on the personal trading bid/ask spread quotations for trading in member firm. The GFF intends to activities of GFF employees; the foreign currency futures contracts liquidate its Globex-originated futures desirability of segregating GFF positions through the Globex system. positions, along with any corresponding from the positions of other customers at interbank positions, during regular B. Operation the clearing member firm carrying the trading hours (‘‘RTH’’). However, if the GFF’s positions; the determination of The GFF would be organized as a GFF did not liquidate all or part of its appropriate means for assuring that a wholly-owned subsidiary of the CME. Globex-originated futures position loss experienced by the GFF would not The Exchange would independently during RTH, then the GFF would be affect other customers of the clearing capitalize the GFF, thereby providing required to meet performance bond member firm carrying the GFF’s the GFF with separate financial margin requirements at its carrying positions; and whether any other resources. GFF employees who operate clearing member firm. Globex terminals would be subject to all conditions or requirements should be applicable CME rules governing Globex C. Oversight imposed on the proposal. Copies of the proposed rule trading. The GFF would be subject to The CME would establish risk amendments and related materials are the rules and regulations of the management controls, including the available for inspection at the Office of Exchange in the same manner as any establishment of a GFF Oversight the Secretariat, Commodity Futures Committee and the appointment of a Trading Commission, Three Lafayette 1 The CME proposal includes newly proposed GFF Risk Manager, to oversee GFF Centre, 1155 21st Street NW, Rule 586. operations. Risk management controls 2 Globex is an electronic trade execution system Washington, DC 20581. Copies also may established by the CME would for trading in certain of the Exchange’s futures and be obtained through the Office of the options contracts outside of the CME’s regular trading hours. Additionally, certain contracts of the 3 An RFQ is a Globex system alert by which a Secretariat at the above address or by Marche´ A Terme International de France are listed Globex user may broadcast a message to all other telephoning (202) 418–5100. Some for trading through Globex. users requesting a quotation. materials may be subject to confidential 9680 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices treatment pursuant to 17 CFR 145.5 or analyzed. Reuse of the parcel is adjusted or terminated, if appropriate, 145.9. analyzed as an indirect or secondary and steps taken to collect any resulting Any person interested in submitting effect of facility disposal. This overpayment. written data, views, or arguments on the environmental Impact Statement DATES: This proposed action will proposed rule amendments should send analyzes potential environmental and become effective April 10, 1996, and the such comments to Jean A. Webb, socioeconomic consequences of three computer matching will proceed Secretary, Commodity Futures Trading reuse scenarios. In contradistinction to accordingly without further notice, Commission, Three Lafayette Centre, our finding of no significant impacts unless comments are received which 1155 21st Street NW, Washington, DC with respect to disposal alternatives, would result in a contrary 20581, by the specified date. added demands on limited water determination or if the Office of Issued in Washington, DC, on February 4, resources, traffic, utility system Management and Budget or Congress 1996. deficiencies and traffic related air objects thereto. Any public comment Alan L. Seifert, pollutant emissions have been must be received before the effective Deputy Director. identified as potentially significant date. impacts under one or more of the reuse [FR Doc. 96–5606 Filed 3–8–96; 8:45 am] alternatives. ADDRESSES: Any interested party may BILLING CODE 6351±01±M submit written comments to the DATES: The public review period for this Director, Defense Privacy Office, Crystal document ends 30 days after the date of Mall 4, Room 920, 1941 Jefferson Davis publication of the EPA notice in the DEPARTMENT OF DEFENSE Highway, Arlington, VA 22202–4502. Federal Register. FOR FURTHER INFORMATION CONTACT: Mr. Department of the Army ADDRESSES: Copies of the Final Environmental Impact Statement can be Aurelio Nepa, Jr. at telephone (703) Final Environmental Impact Statement obtained by writing to Mr. Glenn Coffee, 607–2943. (FEIS) on the Disposal and Reuse of U.S. Army Corps of Engineers, Mobile SUPPLEMENTARY INFORMATION: Pursuant the BRAC Parcel at Tooele Army District, ATTN: CESAM–PD–E, 109 St. to subsection (o) of the Privacy Act of Depot, Tooele, Utah Joseph Street, P.O. Box 2288, Mobile, 1974, as amended, (5 U.S.C. 552a), the Alabama 36628–000, telephone (334) DMDC and VA have concluded an AGENCY: Department of the Army, DOD. 690–2729, telefax (334) 690–2424.1. agreement to conduct a computer ACTION: Notice of availability. Dated: March 5, 1996. matching program between the agencies. The purpose of the match is to exchange SUMMARY: The proposed action Raymond J. Fatz, personal data between the agencies to evaluated by this FEIS is the disposal of Acting Deputy Assistant Secretary of the the 1700 acre BRAC parcel at Tooele Army, (Environmental, Safety and identify disability compensation Army Depot, Tooele, Utah in Occupational Health) OASA (IL&E). recipients who have returned to active accordance with the Defense Base [FR Doc. 96–5706 Filed 3–8–96; 8:45 am] duty and are therefore ineligible to receive VA compensation. Closure and realignment Act of 1990, BILLING CODE 3710±08±M Public Law 101–510, as amended. The parties to this agreement have The FEIS addresses the environmental determined that a computer matching consequences of the disposal and Defense Logistics Agency program is the most efficient, subsequent reuse of the 1700 acres. expeditious, and effective means of Three alternative methods of disposal Privacy Act of 1974; Computer obtaining and processing the are analyzed: Encumbered Disposal, Matching Program Between the information needed by the VA to Unencumbered Disposal and retention Department of Veterans Affairs and the identify ineligible VA disability of the property in a caretaker status (i.e., Defense Manpower Data Center of the compensation recipients who have the No Action Alternative). The Department of Defense. returned to active duty. Using the computer matching program, Encumbered Disposal Alternative AGENCY: Defense Manpower Data information on successful matches (hits) addresses natural or man-made Center, Defense Logistics Agency, encumbrances to the future reuse. The can be provided to VA within 90 days Department of Defense. of receipt of a magnetic tape of VA Unencumbered Disposal Alternative ACTION: Notice of a computer matching benefits record data. A computer match evaluates the potential to remove program between the Department of is the most efficient method, other than encumbrances, thereby allowing the Veterans Affairs (VA) and the a manual search of all active duty property to be disposed of with fewer or Department of Defense (DoD) for public military personnel records, to identify no Army imposed restrictions on future comment. use. The impacts of reuse are evaluated such cases if an individual does not in terms of land use intensities. SUMMARY: Subsection (e)(12) of the report his/her own return to active duty. No significant adverse environmental Privacy Act of 1974, as amended, (5 A copy of the computer matching impacts associated with the no action U.S.C. 552a) requires agencies to agreement between VA and DMDC is alternative or other disposal alternatives publish advance notice of any proposed available upon request to the public. have been identified. The Tooele or revised computer matching program Requests should be submitted to the County Base Reuse Committee by the matching agency for public address caption above or to the submitted a plan for reuse of the BRAC comment. The DoD, as the matching Department of Veterans Affairs, Parcel at Tooele Army Depot. The FEIS agency under the Privacy Act is hereby Veterans Benefit Administration, 810 acknowledges the Tooele County Base giving notice to the record subjects of a Vermont Avenue, NW, Washington, DC Reuse Committee Reuse Plan as the computer matching program between 20420. preferred local reuse plan, and the VA and DoD that their records are being Set forth below is the notice of the impacts of that plan are analyzed in the matched by computer. The purpose of establishment of a computer matching FEIS. Actions associated with this match is to identify disability program required by paragraph 6.c. of realignment of Tooele Army Depot compensation recipients who return to the Office of Management and Budget missions are discussed but not active duty to insure benefits are Guidelines on computer matching Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices 9681 published in the Federal Register at 54 duty pay. The head of any Federal F. Inclusive Dates of the Matching FR 25818 on June 19, 1989. department or agency shall provide Program: This computer matching The matching agreement, as required such information as requested by the program is subject to review by the by 5 U.S.C. 552a(r) of the Privacy Act, VA for the purpose of determining Office of Management and Budget and and an advance copy of this notice was eligibility for, or amount of benefits, or Congress. If no objections are raised by submitted on February 28, 1996, to the verifying other information which either, and the mandatory 30 day public Committee on Government Reform and respect thereto under 38 U.S.C. 5106. notice period for comment has expired Oversight of the House of D. Records to be Matched: The for this Federal Register notice with no Representatives, the Committee on systems of records maintained by the significant adverse public comments in Governmental Affairs of the Senate, and respective agencies under the Privacy receipt resulting in a contrary the Administrator of the Office of Act of 1974, as amended, 5 U.S.C. 552a, determination, then this computer Information and Regulatory Affairs, matching program becomes effective from which records will be disclosed for Office of Management and Budget and the respective agencies may begin the purpose of this computer match are pursuant to paragraph 4d of Appendix the exchange of data 30 days after the as follows: I to OMB Circular No. A–130, ‘Federal date of this published notice at a Agency Responsibilities for Maintaining The VA will use the system of records mutually agreeable time and will be Records about Individuals,’ dated July identified as 58 VA 21/22, repeated quarterly. Under no 15, 1994 (59 FR 37906, July 25, 1994). ’Compensation, Pension, Education and circumstances shall the matching The matching program is subject to Rehabilitation Records-VA,’ as set forth program be implemented before the 30 review by OMB and Congress and shall on pages 967–971, Volume II of the day public notice period for comment not become effective until that review Federal Register publication Privacy has elapsed as this time period cannot period has elapsed. Act Issuances, 1991 Compilation, as be waived. By agreement between VA Dated: March 6, 1996. amended on April 9, 1992 at 57 FR and DMDC, the matching program will 12374, and on September 23, 1992 at 57 be in effect and continue for 18 months Patricia L. Toppings, FR 44007. with an option to renew for 12 Alternate OSD Federal Register Liaison DoD will use personal data from the additional months unless one of the Officer, Department of Defense. record systems identified as S322.10 parties to the agreement advises the DMDC, entitled ‘Defense Manpower other by written request to terminate or Notice of a Computer Matching Data Center Data Base,’ last published in modify the agreement. Program Between the Department of the Federal Register on April 20, 1995, G. Address for Receipt of Public Veterans Affairs and the Department of at 60 FR 19738. Comments or Inquiries: Director, Defense for Debt Collection E. Description of Computer Matching Defense Privacy Office, Crystal Mall 4, A. Participating Agencies: Program: The VA, as the source agency, Room 920, 1941 Jefferson Davis Participants in this computer matching will provide DMDC with a magnetic Highway, Arlington, VA 22202–4502. program are the Department of Veterans tape which contains the VA benefit Telephone (703) 607–2943. Affairs (VA) and the Defense Manpower record data of individual VA disability [FR Doc. 96–5703 Filed 3–8–96; 8:45 am] Data Center (DMDC) of the Department compensation recipients. Upon receipt BILLING CODE 5000±04±F of Defense (DoD). The VA is the source of the computer tape file of recipient agency, i.e., the activity disclosing the accounts, DMDC will perform a records for the purpose of the match. computer match using all nine digits of Corps of Engineers The DMDC is the specific recipient the SSNs in the VA file against a DMDC activity or matching agency, i.e., the computer database. The DMDC database Intent to Prepare an Environmental agency that actually performs the will consist of employment records of Impact Statement for the Bluestone computer matching. active duty military members. Matching Dam Safety Assurance Program, Hinton, West Virginia B. Purpose of the Match: Upon the records, ’hits’ based on the SSN, will execution of an agreement, the VA will produce the member’s name, branch of AGENCY: Army Corps of Engineers, DOD. service, and unit designation. The hits provide identifying information on ACTION: Notice of Intent. disability compensation recipients to will be furnished to the Veterans DMDC to match against active duty, Benefits Administration which is SUMMARY: Under the Policy for including full-time National Guard and responsible for verifying and Evaluating Modifications of Existing Reserve personnel, to identify those determining that the data on the DMDC Dams Related to Hydrologic and seismic recipients who have returned to active reply tape file are consistent with the adequacy, the Huntington District duty and are ineligible to receive VA source file and for resolving any proposes to evaluate alternative compensation so that benefits can then discrepancies or inconsistencies on an measures necessary to modify the be adjusted or terminated, if in order, individual basis. The Veterans Benefits Bluestone Dam consistent with state-of- and steps taken to collect any resulting Administration will also be responsible the-art design criteria. The proposed overpayment. for making final determinations as to action is being conducted through the C. Authority for Conducting the eligibility for benefits or verifying any Corps’ Dam Safety Assurance Program Match: The legal authority for other information with respect thereto. for the evaluation of existing dams. The conducting the matching program for The magnetic computer tape provided Huntington District has determined that use in the administration of the VA’s by VA will contain information on an Environmental Impact Statement is Compensation and Pension Benefits approximately 2.2 million disability required for the proposed study. Program is contained in 38 U.S.C. compensation recipients. FOR FURTHER INFORMATION CONTACT: 5304(c), Prohibition Against Duplication The DMDC computer database file Questions regarding the proposed action of Benefits, which precludes pension, contains approximately 2 million and Environmental Impact Statement compensation, or retirement pay on records of active duty military members, should be addressed to: Mr. C. Barry account of any person’s own service, for including full time Reserve and Passmore, PD–B, Phone: (304) 529– any period for which he receives active National Guard. 5712, Huntington District, Corps of 9682 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices

Engineers, 502 Eighth Street, the Preservation of Historic and Special Programs, the anticipated range Huntington, West Virginia 25701–2070. Archeological Data and EO 11593. is $400,000 to $450,000; for Children’s Programs the anticipated range is SUPPLEMENTARY INFORMATION: Deis Availability $250,000 to $500,000; and for Proposed Action It is anticipated that the DEIS will be Syndicated Television Programming the available for public review by June The purpose of the study is to identify anticipated range is $350,000 to 1997. the preferred alternative to modify the $500,000.’’ existing dam to meet current hydrologic Gregory D. Showalter, 3. In the notice inviting applications, and seismic criteria. Army Federal Register Liaison Officer. under Postsecondary Education FR Doc. 96–5605 Filed 3–8–96; 8:45 am] Programs for Individuals With Reasonable Alternatives BILLING CODE 3710±GM±M Disabilities, beginning on page 4180, the Several alternatives will be following corrections are made: considered for modifying the project. It In the title of the Absolute Priority, has been determined that improvements DEPARTMENT OF EDUCATION and in the sentence following the title to the project will be necessary to of the Absolute Priority, change accommodate the Probable Maximum Office of Special Education and ‘‘Secondary Education’’ to Flood (PMF). Three alternatives have Rehabilitative Services ‘‘Postsecondary Education’’. been identified. Alternative 1 consists of 4. In the notice of final priorities, on AGENCY: Department of Education. raising the dam. Alternative 2 consists page 4169, in the Analysis of Comments ACTION: of an auxiliary spillway. Alternative 3 Correction notice. and Changes section, in the title of the first priority in the second column, consists of partial overtopping of the PURPOSE: On February 2, 1996, the change ‘‘Secondary Education’’ to dam. Secretary published in the Federal ‘‘Postsecondary Education’’ and delete Register two notices relating to grant Scoping process ‘‘services’’. programs under the Individuals with a. The scoping process for the Disabilities Education Act: a notice of 5. In the notice of final priorities, on Bluestone DSA study and DEIS will final priorities (page 4168); and a notice page 4169, in the Analysis of Comments include a series of public involvement inviting applications for new awards for and Changes section, in the title of the meetings and workshops so that the fiscal year 1996 (page 4178). The second priority in the second column, proposed actions and alternative purpose of this notice is to make one add the word ‘‘services’’ after corrective measures can receive correction to the final priority for Closed ‘‘Secondary Education’’. widespread public awareness. Through Captioned Television Programs (CFDA FOR FURTHER INFORMATION CONTACT: Jo the public involvement program and 84.026U); to add information regarding Ann McCann, U.S. Department of media announcements, the Federal, the range of awards for each television Education, 600 Independence Avenue, state and local agencies as well as other program category under this same S.W., Room 4631, Switzer Building, affected and concerned organizations program (CFDA 84.026U); to correct Washington, D.C., 20202–2731. will be kept abreast of the study by the terminology in the title and program Telephone (202) 205–8475. Fax: (202) Corps of Engineers. purpose section of the Absolute Priority 205–8971. Individuals who use a b. Potentially significant issues for titled Model Demonstration Projects to telecommunications device for the deaf NEPA consideration have been Improve the Delivery and Outcomes of (TDD) may call the TDD number: (202) identified. (1) The capability of the 50- Postsecondary Education for Individuals 205–8169. Internet: l l year-old project to adequately and safely with Disabilities (CFDA 84.078C); and Jo Ann [email protected]. provide needed services will be to make other minor technical changes Dated: March 6, 1996. reviewed by evaluating the design of the in the notice of final priorities. Judith E. Heumann, project through application of current The following corrections should be modern engineering design criteria. (2) Assistant Secretary for Special Education and made: Rehabilitative Services. Potential adjustments to the project will 1. In the notice of final priorities, on [FR Doc. 96–5713 Filed 3–8–96; 8:45 am] be considered and screened to identify page 4174 under the Absolute Priority— BILLING CODE 4000±01±P a suitable modernization plan for the Closed Captioned Television Programs, project, and associated operation and the last sentence in the paragraph construction impacts will be assessed entitled ‘‘Movies, Mini-Series and Projects With Industry; Waiver with and without adjustment. (3) It is Special Programs’’ is deleted, and the anticipated that the potential following sentence added: AGENCY: Department of Education. improvement of the project to increase ‘‘Funds provided under this category ACTION: Notice of Waiver. the capability for adequately and safely may be used to support no more than accommodating extreme events may be one-half of the captioning costs of SUMMARY: The Secretary waives the regarded as a significant Federal action. movies, mini-series, and specials.’’ requirement in the Education c. The DEIS will be developed under 2. In the notice inviting applications, Department General Administrative the guidance, requirements, and format on page 4180, under Absolute Priority— Regulations (EDGAR) in 34 CFR in 40 CFR 1502.9c and 1502.10. Closed Captioned Television Programs, 75.261(a)(2) that prohibits project Consultation will be conducted with the the following information is added: extensions that involve the obligation of U.S. Fish and Wildlife Service and the ‘‘Estimated Range of Awards: The additional Federal funds. The Secretary Environmental Protection Agency Secretary anticipates making at least one waives this EDGAR requirement for during the NEPA process, pursuant to award in each category of television fiscal year (FY) 1996 only for the the requirements of the Fish and programs. For each 12-month period, Projects With Industry (PWI) program. Wildlife Coordination Act, the the anticipated range of awards for The Secretary will issue continuation Endangered Species Act, the Heritage National News and Public Information awards in FY 1996 to all grantees under Conservation and Recreation Service is $500,000 to $1,500,000, for a total of this program that are in the fifth and and State Historic Preservation Act, and $2,500,000; for Movies, Mini-Series and final year of the project period in order Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices 9683 to ensure the most efficient and effective previously described makes the most review of proposed Federal financial use of Federal funds. programmatic sense and is the most assistance. EFFECTIVE DATE: This waiver takes effect efficient and effective use of Federal In accordance with the order, this on April 10, 1996. funds. However, to do so, the document is intended to provide early FOR FURTHER INFORMATION CONTACT: Department must waive the requirement notification of the Department’s specific Thomas E. Finch, U.S. Department of in EDGAR in 34 CFR 75.261(a)(2) that plans and actions for this program. Education, 600 Independence Avenue, prohibits the extension of project (Catalog of Federal Domestic Assistance S.W., Room 3038, Mary E. Switzer periods that involve the obligation of Number 84.234 Projects With Industry.) Building, Washington, D.C. 20202–2575. additional Federal funds. Dated: March 4, 1996. Telephone: (202) 205–8292. Individuals Waiver of Proposed Rulemaking Howard R. Moses, who use a telecommunications device In accordance with section 437 of the Acting Assistant Secretary for Special for the deaf (TDD) may call the Federal General Education Provisions Act (20 Education and Rehabilitative Services. Information Relay Service (FIRS) at 1– U.S.C. 1232) and the Administrative [FR Doc. 96–5593 Filed 3–8–96; 8:45 am] 800–877–8339 between 8 a.m. and 8 Procedure Act (5 U.S.C. 553), it is the BILLING CODE 4000±01±P p.m., Eastern time, Monday through practice of the Secretary to offer Friday. interested parties an opportunity to SUPPLEMENTARY INFORMATION: A total of comment on proposed regulations. DEPARTMENT OF ENERGY 95 grantees, which were first funded in However, the Secretary has determined, FY 1991, received their fifth and final pursuant to 5 U.S.C. 553(b)(B), that Availability of the Stockpile year of project support in FY 1995. public comment is impracticable Stewardship and Management Draft The Department had planned to because of the time constraints Programmatic Environmental Impact conduct a competition for new five-year discussed in the Supplementary Statement awards later this fiscal year in Information section of this notice. Just accordance with revised program AGENCY: Department of Energy. as there is insufficient time to change regulations that would strengthen ACTION: Notice of availability and public the program regulations for purposes of certain statutory requirements and hearings. making new awards in fiscal year 1996, enhance project accountability. The there is not enough time to take public SUMMARY: The Department of Energy revised regulations would contain new comment on waiving the EDGAR (DOE) announces the availability of the application content requirements and requirement prohibiting cost extensions Stockpile Stewardship and Management new selection criteria for evaluating and make the continuation awards. Draft Programmatic Environmental grant applications. The Department had planned to Regulatory Flexibility Act Certification Impact Statement (PEIS), and the dates publish a notice of proposed rulemaking and locations for public hearings to The Secretary certifies that this receive comments on the Draft PEIS. (NPRM) proposing revisions to the waiver would not have a significant existing program regulations in mid- DOE prepared the Stockpile economic impact on a substantial Stewardship and Management PEIS December 1995, but, because of the number of small entities. closure of the Department for a number pursuant to the National Environmental The small entities that would be Policy Act (NEPA) of 1969 (42 U.S.C. of weeks in December and early January affected by this waiver are program due to lapsed funding and inclement 4321 et seq.) The Stockpile Stewardship grantees currently receiving Federal and Management PEIS analyzes the weather, the Department was unable to funds to complete the fifth and final meet this schedule. The NPRM was consequences to the environment year of the project period. However, the associated with alternative ways of published on January 22, 1996 (60 FR waiver would not have a significant 1672) and provides for a comment maintaining the safety and reliability of economic impact on these grantees the nuclear weapons stockpile in the period ending March 22, 1996. The because the waiver would not impose Department has now determined that it absence of underground nuclear testing. excessive regulatory burdens or require DATES: is unable to publish final regulations in The public comment period on unnecessary Federal supervision. The the Draft PEIS will extend until May 7, time to have them apply to a waiver would impose minimal competition for new awards in FY 1996. 1996. The dates, times and locations of requirements to ensure the proper the public hearings on the Draft PEIS are The program statute (section expenditure of program funds— 621(e)(1)(A) of the Rehabilitation Act of identified in the SUPPLEMENTARY requirements that are standard to INFORMATION. 1973, as amended) specifies that a grant continuation awards. may be made for a period of up to five ADDRESSES: Written comments on the years and may be renewed. The Paperwork Reduction Act of 1995 Draft PEIS, as well as requests for copies Department has interpreted this This waiver has been examined under of the Draft PEIS or its Summary may authority to mean that it can extend the Paperwork Reduction Act of 1995 be submitted to the Office of non-competitively PWI grants beyond and has been found to contain no Reconfiguration, DP–25, U.S. the five-year project period. The information collection requirements. Department of Energy, P.O. Box 3417, Department has decided to exercise this Alexandria, Virginia 22302. Requests for renewal authority because of the unique Intergovernmental Review copies may also be made by calling 1– circumstances affecting this program This program is subject to the 800–776–2765. this fiscal year and to make requirements of Executive Order 12372 FOR FURTHER INFORMATION CONTACT: For continuation awards for an additional and the regulations in 34 CFR Part 79. general information on the Department’s year rather than conduct a new The objective of the Executive order is National Environmental Policy Act competition under the existing program to foster an intergovernmental (NEPA) process, please contact: Ms. regulations. partnership and a strengthened Carol Borgstrom, Director, Office of The Department has, therefore, federalism by relying on processes NEPA Policy and Assistance, EH–42, determined that to make continuation developed by State and local U.S. Department of Energy, 1000 awards under the circumstances governments for coordination and Independence Ave., S.W., Washington, 9684 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices

D.C. 20585. Ms. Borgstrom may be Facility. Four sites are potentially • Construct and operate the Atlas contacted by calling (202) 586–4600 or affected by the Stockpile Stewardship Facility at Los Alamos National by leaving a message at 1–800–472– alternatives: Los Alamos National Laboratory, at Los Alamos NM. 2756. Laboratory (LANL), Lawrence Livermore Specific information regarding the National Laboratory (LLNL), Sandia Stockpile Management public hearings, including registration National Laboratories (SNL), and the • Secondary and Case Component information, can also be obtained by Nevada Test Site (NTS). Fabrication—downsize the Y–12 Plant calling 1–800–776–2765, writing to the Stockpile management refers to at Oak Ridge Reservation, at Oak Ridge address above, or electronically via activities associated with the TN. computer as follows: Federal production, maintenance, surveillance, • Information Exchange Bulletin Board, refurbishment, and dismantlement of Pit Component Fabrication—re- InterNet Address: http://web.fie.com/ the nuclear weapons stockpile. The establish pit component fabrication fedix/doeoor.html, Modem Toll-Free: 1– stockpile management portion of the capability at the Los Alamos National 800–783–3349, D.C. Metro Modem: PEIS evaluates the potential Laboratory, at Los Alamos NM. 301–258–0953. environmental impacts of reasonable • Assembly/Disassembly—downsize SUPPLEMENTARY INFORMATION: In alternatives for carrying out the the Pantex Plant, at Amarillo TX. response to the end of the Cold War and stockpile management functions. • Nonnuclear Component changes in the world political situation, Alternative sites are assessed for nuclear Fabrication—downsize the Kansas City the United States is no longer producing weapons assembly/disassembly, and for Plant, Kansas City MO. new nuclear weapons. Instead, the fabrication of plutonium, uranium, high emphasis of the United States’ nuclear explosives, and nonnuclear Ten public hearings to receive weapons program is on reducing the components. Eight sites are potentially comments on the Draft Stockpile size of the Nation’s nuclear stockpile by affected: Savannah River Site (SRS), Oak Stewardship and Management PEIS will dismantling existing nuclear weapons. Ridge Reservation (ORR), Pantex Plant be held. A workshop-type format will be DOE has been directed by the President (Pantex), Kansas City Plant (KCP), used for each hearing, including: a and Congress to maintain the safety and LANL, LLNL, SNL, and NTS. The PEIS program overview; interactive reliability of the reduced nuclear also evaluates the No Action alternative discussions; and a summary session. For weapons stockpile in the absence of of relying on existing facilities in their the four sites which are being underground nuclear testing. In order to current configuration and continuing considered as alternative locations for fulfill that responsibility, DOE has the missions at current sites to achieve both the Stockpile Stewardship and developed the Stockpile Stewardship both stockpile stewardship and Management Draft PEIS and the Storage and Management Program to provide a stockpile management missions. and Disposition of Weapons-Usable single, highly integrated technical As of February 9, 1996, the date when Fissile Materials Draft PEIS (Nevada program for maintaining the continued the Stockpile Stewardship and Test Site at Las Vegas, NV, Oak Ridge safety and reliability of the nuclear Management Draft PEIS was sent to the Reservation at Oak Ridge, TN, the stockpile. The Stockpile Stewardship printer, the Department had identified Pantex Plant at Amarillo, TX, and and Management PEIS describes and only one preferred alternative: to Savannah River Site at North Augusta, analyzes alternative ways to implement construct and operate the NIF at LLNL. SC), joint public hearings will be held the Stockpile Stewardship and Since that date, DOE has identified to receive comments on both Management Program. additional preferred alternatives. The documents. The Pantex Site-Wide PEIS Stockpile stewardship refers to complete list of preferred alternatives is is also scheduled to be discussed at the activities associated with the research, as follows: public hearings in Amarillo, TX, and design, development, and testing of North Augusta, SC. The public hearing nuclear weapons, and the assessment Stockpile Stewardship to be held in Washington, D.C. will also and certification of their safety and • Construct and operate the NIF at be a joint hearing. These joint hearings reliability of the weapons. The stockpile Lawrence Livermore National are scheduled to explain the stewardship portion of the PEIS Laboratory, at Livermore CA. interrelationship between the programs evaluates the potential environmental • Construct and operate the and to facilitate comments by persons impacts of three proposed facilities: the Contained Firing Facility at Lawrence interested in the proposals. These National Ignition Facility (NIF), the Livermore National Laboratory, at public hearings have been scheduled as Contained Firing Facility, and the Atlas Livermore CA. follows:

Location Date Time

Los Alamos, New Mexico, Fuller Lodge, 2132 Central Avenue, Los Alamos, NM 87544 .... March 26, 1996 ...... 1:00 p.m.±5:00 p.m. March 26, 1996 ...... 6:00 p.m.±10:00 p.m. Albuquerque, New Mexico, Albuquerque Convention Center, 401 Second Street, N.W., Al- March 28, 1996 ...... 6:00 p.m.±10:00 p.m. buquerque, NM 87102. Las Vegas, Nevada, The Sands Expo and Convention Center, 201 East Sands Avenue, March 28, 1996 ...... 6:00 p.m.±11:00 p.m. Las Vegas, NV 89109. March 29, 1996 ...... 8:00 a.m.±1:00 p.m. Oak Ridge, Tennessee, Garden Plaza Hotel, 215 S. Illinois Avenue, Oak Ridge, TN April 1, 1996 ...... 6:00 p.m.±10:00 p.m. 37830. (Stockpile Stewardship and Management only) April 2, 1996 ...... 8:30 a.m.±1:30 p.m. (Both Programs) April 2, 1996 ...... 6:00 p.m.±10:00 p.m. (Storage and Disposition only) Kansas City, Missouri, Rockhurst College, 1100 Rockhurst Roadway, Kansas City, MO April 9, 1996 ...... 12:00 p.m.±4:00 p.m. 64110. Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices 9685

Location Date Time

April 9, 1996 ...... 6:00 p.m.±10:00 p.m. Livermore, California, LLNL Research Drive Training Center, 2140 Research Drive, Liver- April 11, 1996 ...... 12:00 p.m.±4:00 p.m. more, CA 94550. April 11, 1996 ...... 6:00 p.m.±10:00 p.m. Washington, D.C., Forrestal Bldg., Rm. 1E±245, 1000 Independence Avenue, SW., Wash- April 18, 1996 ...... 9:00 a.m.±12:30 p.m. ington, D.C. 20585. Amarillo, Texas, Radisson Inn Airport, 7909 I±40 East, at Lakeside, Amarillo, TX 79102 ... April 22, 1996 ...... 6:00 p.m.±11:00 p.m. April 23, 1996 ...... 8:30 a.m.±5:30 p.m. (An evening meeting may be held April 23, 1996 if there is sufficient interest) Santa Fe, New Mexico, High Mesa Inn, 3347 Cerrillos Road, Santa Fe, NM 87505 ...... April 25, 1996 ...... 6:00 p.m.±10:00 p.m. North Augusta, SC, North Augusta Community Center, 101 Brookside Drive, North Au- April 30, 1996 ...... 8:00 a.m.±1:00 p.m. gusta, SC 29841. April 30, 1996 ...... 6:00 p.m.±11:00 p.m.

Details regarding the format and tariff provisions regarding the filing of [Docket No. RP96±161±000] procedures for the public hearings will the annual redetermination of the be published locally. Hearing times will monthly charge for services provided to ANR Pipeline Company; Notice of be extended, as appropriate, to High Island Offshore System (HIOS) Proposed Changes in FERC Gas Tariff accommodate public interest. under ANR’s Rate Schedule X–64. March 5, 1996. The public comment period will ANR states that HIOS gave ANR extend until May 7, 1996. Written or Take notice that on February 29, 1996, notice of its intent to terminate its oral comments on the Draft EIS are ANR Pipeline Company (ANR) tendered invited from the general public, other existing service agreement with ANR for filing as part of its FERC Gas Tariff, government agencies, and all other effective May 22, 1995, and that on Second Revised Volume No. 1, the interested parties. Comments received February 28, 1996, ANR and HIOS following revised tariff sheet, proposed or postmarked by May, 7, 1996, whether entered into an agreement in principle to become effective March 1, 1996: written or oral, submitted directly to the for new rates and charges for the service Sixteenth Revised Sheet No. 18 Department, or presented during a provided under Rate Schedule X–64 public hearing, will be given equal which agreement eliminates the need to ANR states that the above-referenced consideration in preparation of the Final determine annually the rate through the tariff sheet is being filed to implement EIS. Comments received after that date end of calendar year 2000. Thereafter, an annual true-up of the recovery of its will be considered to the extent unless the parties agree otherwise, the Above-Market Dakota Costs, as required practicable. DOE will use the comments annual redetermination requirement by its recovery tariff mechanism. ANR received to help prepare the Final may be reactivated. Accordingly, ANR advises that the filing proposes a version of the EIS. A Final PEIS for requests that the tariff provision which negative reservation surcharge Stockpile Stewardship and Management requires an annual rate redetermination adjustment of ($0.076) applicable to its is expected to be completed by July filing by ANR be suspended. currently effective, firm service Rate 1996. A Record of Decision would be Any person desiring to be heard or to Schedules. ANR states that this negative completed no sooner than 30 days after protest said filing should file a motion surcharge is proposed to return to the Final PEIS is issued. to intervene or protest with the Federal ANR’s customers, over the twelve Signed in Washington, D.C. this 6th day of Energy Regulatory Commission, 888 month period of March 1, 1996 to March, 1996. First Street, NE, Washington, DC 20426 February 28, 1997, the $3.4 million of Eldon W. Joersz, in accordance with Rules 214 and 211 above-market Dakota cost Major General, USAF, Principal Deputy of the Commission’s Rules of Practice overcollections, inclusive of interest, Assistant Secretary For Military Application, and Procedure (18 CFR 385.214 or which is reflected in the true-up filing. Defense Programs. 385.211). All such motions or protests [FR Doc. 96–5699 Filed 3–8–96; 8:45 am] Any person desiring to be heard or to should be filed on or before March 12, protest this filing should file a motion BILLING CODE 6450±01±P 1996. Protests will be considered by the to intervene or protest with the Federal Commission in determining the Energy Regulatory Commission, 888 Federal Energy Regulatory appropriate action to be taken, but will First Street, N.E., Washington, D.C. Commission not serve to make Protestants parties to 20426, in accordance with 18 CFR the proceeding. Any person wishing to 385.214 and 385.211 of the [Docket No. RP96±153±000] become a party must file a motion to Commissions Rules and Regulations. All intervene. Copies of this application are such motions or protests must be filed ANR Pipeline Company; Notice of request for Suspension of FERC Gas on file with the Commission and are as provided in Sections 154.210 of the Tariff Requirement available for public inspection. Commission’s Regulations. Protests will Linwood A. Watson, Jr., be considered by the Commission in March 5, 1996. Acting Secretary. determining the appropriate action to be taken, but will not serve to make Take notice that on February 29, 1996, [FR Doc. 96–5623 Filed 3–8–96; 8:45 am] ANR Pipeline Company (ANR) filed, protestants parties to the proceeding. pursuant to Rule 207 of the Rules of BILLING CODE 6717±01±M Any person wishing to become a party Practice and Procedure of the Federal must file a motion to intervene. Copies Energy Regulatory Commission, 18 CFR of this filing are on file with the 385.207, a request for suspension of its Commission and are available for public 9686 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices inspection in the Public Reference inspection in the Public Reference Tenth Revised Sheet No. 31 Room. Room. Seventeenth Revised Sheet No. 32 Linwood A. Watson, Jr., Seventeenth Revised Sheet No. 33 Linwood A. Watson, Jr., Eigth Revised Sheet No. 34 Acting Secretary. Acting Secretary. Tenth Revised Sheet No. 35 [FR Doc. 96–5630 Filed 3–8–96; 8:45 am] [FR Doc. 96–5663 Filed 3–8–96; 8:45 am] Tenth Revised Sheet No. 36 BILLING CODE 6717±01±M BILLING CODE 6717±01±M CNG requests an effective date of April 1, 1996, for these proposed tariff [Docket No. RP96±155±000] sheets. [Docket No. RP96±154±000] CNG states that the purpose of this CNG Transmission Corporation; Notice filing is to update CNG’s effective ANR Pipeline Company; Notice of of Termination of Service Transportation Cost Rate Adjustment Proposed Changes in FERC Gas Tariff March 5, 1996. (TCRA). The effect of the proposed TCRA on each element on CNG’s rates March 5, 1996. Take notice that on February 29, 1996, CNG Transmission Corporation (CNGT), is summarized on Workpaper 4, which Take notice that on February 29, 1996, tendered for filing, pursuant to Section is attached to the filing. CNG further ANR Pipeline Company (ANR) tendered 4 of the Natural Gas Act, a notice of states that it has computed its TCRA in for filing as part of its FERC Gas Tariff, termination of service on pipeline accordance with the methods prescribed Second Revised Volume No. 1, the facilities which CNG will abandon by by section 15.3 of the General Terms; following tariff sheets, to become sale to Eastern States Oil & Gas, Inc. this calculation is set forth in detail on effective March 1, 1996: CNG states that no contract for Workpaper 1. CNG states that copies of this letter of Eleventh Revised Sheet No. 8 transportation of service with CNG will be terminated because delivery of gas transmittal and enclosures are being Thirteenth Revised Sheet No. 9 mailed to CNG’s customers and Thirteenth Revised Sheet No. 13 will occur further downstream of the current delivery points. CNG proposes a interested state commissions. Thirteenth Revised Sheet No. 16 Any person desiring to be heard or to Fifteenth Revised Sheet No. 18 March 29, 1996 effective date. CNG states that copies of the filing are protest this filing should file a motion ANR states that the above-referenced being mailed to CNG’s customers and to intervene or protest with the Federal tariff sheets are being filed pursuant to interested state commissions. Energy Regulatory Commission, 888 the approved recovery mechanism of its Any person desiring to be heard or to First Street, NE., Washington, DC 20426, Tariff to implement recovery of $6.8 protest this filing should file a motion in accordance with 18 CFR 385.214 and million of costs that are associated with to intervene or protest with the Federal 385.211 of the Commission’s Rules and its obligations to Dakota Gasification Energy Regulatory Commission, 888 Regulations. All such motions or Company (Dakota). ANR proposes a First Street, N.E., Washington, D.C. protests must be filed as provided in section 154.210 of the Commission’s reservation surcharge applicable to its 20426, in accordance with Rules 214 Regulations. Protests will be considered Part 284 firm transportation customers and 211 of the Commission’s Rules of by the Commission in determining the to collect ninety percent (90%) of the Practice and Procedure (18 CFR 385.214 appropriate action to be taken, but will Dakota costs and an adjustment to the or 385.211). All such motions or not serve to make protestants parties to maximum base tariff rates of Rate protests must be filed on or before March 12, 1996. Protests will be the proceeding. Any person wishing to Schedule ITS and overrun rates become a party must filed a motion to applicable to Rate Schedule FTS–2 so as considered by the Commission in determining the appropriate action to be intervene. Copies of this filing are on to recover the remaining ten percent file with the Commission and are (10%). ANR advises that the proposed taken, but will not serve to make the protestants parties to the proceedings. available for public inspection in the changes would decrease current Public Reference Room. quarterly Dakota Above-Market cost Any person wishing to become a party to the proceeding or to participate as a Linwood A. Watson, Jr., recoveries from $9.7 million to $6.8 part in any hearing therein must file a Acting Secretary. million, based upon costs incurred from motion to intervene. Copies of this filing November 1995 to January 1996. [FR Doc. 96–5641 Filed 3–8–96; 8:45 am] are on file with the Commission and are BILLING CODE 6717±01±M Any person desiring to be heard or to available for public inspection in the protest this filing should file a motion Public Reference Room. to intervene or protest with the Federal Linwood A. Watson, Jr., [Docket No. RP96±165±000] Energy Regulatory Commission, 888 Acting Secretary. Columbia Gas Transmission First Street, N.E., Washington, DC [FR Doc. 96–5624 Filed 3–8–96; 8:45 am] 20426, in accordance with 18 CFR Corporation; Notice of Proposed BILLING CODE 6717±01±M 385.214 and 385.211 of the Changes in FERC Gas Tariff Commission’s Rules and Regulations. March 5, 1996. [Docket No. TM96±5±22±000] All such motions or protests must be Take notice that on March 1, 1996, filed as provided in Section 154.210 of CNG Transmission Corporation; Notice Columbia Gas Transmission Corporation the Commission’s Regulations. Protests of Proposed Changes in FERC Gas (Columbia), tendered for filing as part of will be considered by the Commission Tariff its FERC Gas Tariff, Second Revised in determining the appropriate action to Volume No. 1, the revised tariff sheets be taken, but will not serve to make March 5, 1996. listed below: protestants parties to the proceeding. Take notice that on February 29, 1996, 4th Sub Eleventh Revised Sheet No. 25 Any person wishing to become a party CNG Transmission Corporation (CNG), 3rd Sub Eleventh Revised Sheet No. 26 must file a motion to intervene. Copies tendered for filing as part of its FERC 3rd Sub Eleventh Revised Sheet No. 27 of this filing are on file with the Gas Tariff, Second Revised Volume No. 3rd Sub Twelfth Revised Sheet No. 28 Commission and are available for public 1, the following tariff sheets: 2nd Sub Seventh Revised Sheet No. 29 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices 9687

3rd Sub Seventh Revised Sheet No. 30 commodity costs applicable to its order issued on February 16, 1996, at 74 The proposed Effective Date of these Stranded Account No. 186 deferral FERC ¶ 61,160 in Docket No. RP95– revised tariff sheets is April 1, 1996. period of January 1, 1995, through 408–000. Columbia states that this filing March 31, 1996. Any person desiring to be heard or to constitutes its annual filing pursuant to Columbia states that copies of this protest this filing should file a motion Section 36.2 of the General Terms and filing have been served upon all of its to intervene or protest with the Federal Conditions (GTC) of its FERC Gas Tariff, firm customers, and interested State Energy Regulatory Commission, 888 Second Revised Volume No. 1. GTC Commissions. Moreover, all First Street, N.E., Washington, D.C. Section 36, (‘‘Transportation Costs Rate interruptible customers having 20426, in accordance with Sections Adjustment (TCRA)’’, enables Columbia submitted a standing request for such 385.214 and 385.211 of the to adjust its TCRA rates prospectively to filings were also served. Commission’s Rules and Regulations. reflect estimated current costs and Any person desiring to be heard or to All such motions or protests must be unrecovered amounts for the deferral protest this filing should file a motion filed as provided in Section 154.210 of period. In this filing, Columbia states to intervene or protest with the Federal the Commission’s Regulations. Protests that its TCRA rate consists of a current Energy Regulatory Commission, 888 will be considered by the Commission operational TCRA rate, a current First Street, NE., Washington, DC 20426, in determining the appropriate action to stranded TCRA rate, an unrecovered in accordance with Sections 385.214 be taken, but will not serve to make operational 858 rate, and an and 385.211 of the Commission’s Rules protestants parties to the proceeding. unrecovered stranded 858 rate. and Regulations. All such motions or Any person wishing to become a party Columbia states that its filing includes protests must be filed as provided in must file a motion to intervene. Copies projected costs in the amount of Section 154.210 of the Commission’s of this filing are on file with the $15,317,083 for the Operational Regulations. Protests will be considered Commission and are available for public Account No. 858 contracts based upon by the Commission in determining the inspection in the Public Reference the rates of the applicable pipeline appropriate action to be taken, but will Room. companies at April 1, 1996, and the not serve to make protestants parties to Linwood A. Watson, Jr., respective determinants associated with the proceeding. Any person wishing to Acting Secretary. these contracts. According to Columbia, become a party must file a motion to [FR Doc. 96–5637 Filed 3–8–96; 8:45 am] intervene. Copies of this filing are on the Operational Account No. 858 BILLING CODE 6717±01±M contracts are those upstream pipeline file with the Commission and are contracts retained by Columbia during available for public inspection in the restructuring under Order No. 636 to Public Reference Room. [Docket No. TM96±4±70±000] meet its operational needs. Linwood A. Watson, Jr., Columbia further states that in Acting Secretary. Columbia Gulf Transmission Company; Notice of Proposed accordance with Article VIII, Section G [FR Doc. 96–5633 Filed 3–8–96; 8:45 am] Changes in FERC Gas Tariff of the Customer Settlement in Docket BILLING CODE 6717±01±M No. GP94–2, et al., it is maintaining the March 5, 1996. stranded TCRA demand rates filed in [Docket No. TM96±3±21±000] Take notice that on March 1, 1996, Docket No. RP95–196 as accepted by the Columbia Gulf Transmission Company Commission by order dated March 30, Columbia Gas Transmission (Columbia Gulf) tendered for filing as 1995, 70 FERC ¶ 61,364 (1995), in order Corporation; Notice of Proposed part of its FERC Gas Tariff, Second to levelize Columbia’s recovery of costs. Changes in FERC Gas Tariff Revised Volume No. 1, the following Columbia also states that in this filing tariff sheets, to become effective April 1, it is eliminating the stranded March 5, 1996. 1996: commodity rate of ($0.0048)/Dth, Take notice that on March 1, 1996, effective April 1, 1996. The stranded Eleventh Revised Sheet No. 018 Columbia Gas Transmission Corporation Eleventh Revised Sheet No. 019 commodity rate was designed on a (Columbia) tendered for filing as part of credit balance which included a rate its FERC Gas Tariff, Second Revised Columbia Gulf states that the instant refund in Tennessee Gas Pipeline Volume No. 1, the following tariff sheet, filing represents Columbia Gulf’s annual Company’s Docket No. RP91–203. to become effective April 1, 1996: filing pursuant to Section 33, Columbia has fully flowed back to its ‘‘Transportation Retainage Adjustment customers the credit balance of the Third Revised Sheet No. 44 (TRA)’’, of the General Terms and commodity costs. Columbia further Columbia states that the proposed Conditions of its FERC Gas Tariff, anticipates that its stranded Account changes constitute Columbia’s annual Second Revised Volume No. 1. No. 858 costs will be fully recovered by filing pursuant to the provisions of Columbia Gulf states that it currently September of 1996. Section 35, ‘‘Retainage Adjustment has retainage factors for each of its three Columbia, by this filing, also proposes Mechanism’’, of the General Terms and zones. Each factor consists of a current to reconcile actual activity for the Conditions (GTC) of its tariff. The and an unrecovered component for deferral period to reflect a net under revised sheet listed above sets forth the company-use, lost, and unaccounted for recovery of $1,175,764. Columbia retainage percentages as a result of this quantities. In this filing, Columbia Gulf proposes to flow back an over recovery filing, and reflects adjustments for both is adjusting the current component of of $837,141 in demand costs, and the current and unrecovered each retainage factor to reflect a change $769,183 in commodity costs applicable components within each of the retainage in the estimate for company-use, lost, to its Operational Account No. 186 percentages for company-use, lost and and unaccounted for quantities. The deferral period of January 1, 1995, unaccounted for quantities. Columbia unrecovered component for each of the through December 31, 1995. states that it has also implemented a retainage factors is also being adjusted Finally, Columbia proposes to recover separate gathering retainage percentage in this filing to account for an under- through a commodity surcharge an applicable to gathering quantities in recovery of these quantities during the under recovery of $2,782,088 in accordance with this Commission’s deferral period. 9688 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices

Any person desiring to be heard or to Thirty-First Revised Sheet No. 1–D.3 Revised Volume No. 1, the following protest this filing should file a motion El Paso states that the tendered tariff proposed tariff sheet: to intervene or protest with the Federal sheets proposed to become effective Sixth Revised Sheet No. 6 Energy Regulatory Commission, 888 April 1, 1996, reflect an adjustment to First Street, N.E., Washington, D.C. its take-or-pay Throughput Surcharge to The proposed tariff sheet contains an 20426, in accordance with Sections reflect an adjustment for the difference effective date of April 1, 1996. 385.214 and 385.211 of the between previously estimated interest Equitrans states that this filing Commission’s Rules and Regulations. and actual interest and to add actual constitutes its first annual products All such motions or protests must be interest for February and March 1996. extraction rate adjustment filing under filed as provided in Section 154.210 of As a result, the Throughput Surcharge section 32 of the General Terms and the Commission’s Regulations. Protests has decreased $0.0439 per dth, from Conditions of its FERC Gas Tariff. By will be considered by the Commission $0.0461 to $ 0.0022 per dth. this filing, Equitrans proposes an in determining the appropriate action to El Paso states that the tendered tariff adjusted extraction rate of $0.2015/Dth be taken, but will not serve to make sheets proposed to become effective for the prospective 12-month period protestants parties to the proceeding. May 1, 1996, will remove the beginning April 1, 1996. Equitrans states Any person wishing to become a party Throughput Surcharge from the that this represents a significant must file a motion to intervene. Copies applicable Statement of Rates sheets in reduction from the $0.2450/Dth rate of this filing are on file with the its Tariff after the completion of the which was approved by the Commission Commission and are available for public take-or-pay cost recovery on April 30, in 1995. In calculating the current rate, inspection in the Public Reference 1996. El Paso has requested waiver of Equitrans states that it utilizes actual Room. the requirements of Section 154.207 of extraction billings and actual plant Linwood A. Watson, Jr., the Commission’s Regulations to accept throughput for the 12 months ended Acting Secretary. the tendered tariff sheets with a December 31, 1995, adjusted for [FR Doc. 96–5640 Filed 3–8–96; 8:45 am] proposed May 1, 1996, effective date anticipated activity during 1996, all as BILLING CODE 6717±01±M and permit them to become effective on more fully set forth in the filing. that date, which is 61 days following the Any person desiring to be heard or date of the filing. protest this filing should file a motion [Docket No. TM96±2±33±000] Any person desiring to be heard or to to intervene or protest with the Federal El Paso Natural Gas Company; Notice protest said filing should file a motion Energy Regulatory Commission, 888 of Proposed Changes in FERC Gas to intervene or protest with the Federal First Street, N.E., Washington, D.C. Tariff Energy Regulatory Commission, 888 20426, in accordance with sections First Street, NE., Washington, DC 20426, 385.214 and 385.211 of the March 5, 1996. in accordance with Sections 385.214 Commission’s Rules and Regulations. Take notice that on March 1, 1996, El and 385.211 of the Commission’s Rules All such motions or protests must be Paso Natural Gas Company (El Paso), and Regulations. All such motions or filed as provided in Section 154.210 of tendered for filing as part of its FERC protests must be filed as provided in the Commission’s Regulations. Protests Gas Tariff, the following tariff sheets, to Section 154.210 of the Commission’s will be considered by the Commission become effective April 1, 1996. Regulations. Protests will be considered in determining the appropriate action to by the Commission in determining the Second Revised Volume No. 1–A be taken, but will not serve to make appropriate action to be taken, but will protestants parties to the proceeding. Sixth Revised Sheet Nos. 20 and 23 not serve to make protestants parties to Any person wishing to become a party Seventh Revised Sheet No. 24 Sixth Revised Sheet No. 26 the proceeding. Any person wishing to must file a motion to intervene. Copies Fifth Revised Sheet Nos. 27–28 become a party must file a motion to of this filing are on file with the intervene. Copies of this filing are on Commission and are available for public Third Revised Volume No. 1 file with the Commission and are inspection in the Public Reference Fourth Revised Sheet No. 101 available for public inspection in the Room. Third Revised Volume No. 2 Public Reference Room. Linwood A. Watson, Jr., Thirty-Seventh Revised Sheet No. 1–D.2 Linwood A. Watson, Jr., Acting Secretary. Thirtieth Revised Sheet No. 1–D.3 Acting Secretary. [FR Doc. 96–5635 Filed 3–8–96; 8:45 am] El Paso is also tendering for filing as [FR Doc. 96–5636 Filed 3–8–96; 8:45 am] BILLING CODE 6717±01±M part of its FERC Gas Tariff, Volume Nos. BILLING CODE 6717±01±M 1–A, 1, and 2, the following tariff sheets, to become effective May 1, 1996. [Docket No. TM96±2±24±000] [Docket No. MG96±8±000] Second Revised Volume No. 1–A Equitrans, L.P.; Notice of Proposed Michigan Gas Storage Company; Seventh Revised Sheet Nos. 20 and 23 Notice of Filing Eighth Revised Sheet No. 24 Changes in FERC Gas Tariff Seventh Revised Sheet No. 26 March 5, 1996. March 5, 1996. Sixth Revised Sheet Nos. 27–28 Take notice that on March 1, 1996, Take notice that on February 28, 1996, Third Revised Volume No. 2 Equitrans, L.P. (Equitrans) tendered for Michigan Gas Storage Company Thirty-Eighth Revised Sheet No. 1–D.2 filing a part of its FERC Gas Tariff, First (Michigan Gas) filed revised standards Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices 9689 of conduct under Order Nos. 497 et amended to include authorization to services provided through various seq.1 and Order Nos. 566, et seq.2 abandon Wells 5448 and 5447 located in pipelines and metering and regulating Any person desiring to be heard or to National Fuel’s St. Mary’s Storage Field, stations which National Fuel will protest said filing should file a motion Elk County, Pennsylvania. National Fuel transfer to its affiliate, National Fuel Gas to intervene or protest with the Federal states that Well 5448 was plugged in Distribution Corporation. National Fuel Energy Regulatory Commission, 888 1974 and Well 5447 was plugged in proposes an April 1, 1996 effective date. First Street, NE., Washington, DC 20426, 1976. National Fuel states that no in accordance with Rules 211 or 214 of Any person desiring to be heard or to transportation agreement will be the Commission’s Rules of Practice and make any protest with reference to said abandoned as a result of these transfers Procedure (18 CFR 385.211 or 385.214). amendment should on or before March and service to customers served off All such motions to intervene or protest 12, 1996, file with the Federal Energy these facilities will not be adversely should be filed on or before March 20, Regulatory Commission, Washington, affected by the transfer. 1996. Protests will be considered by the D.C. 20426, a motion to intervene or a Any person desiring to be heard or to Commission in determining the protest in accordance with the protest this filing should file a motion appropriate action to be taken but will requirements of the Commission’s Rules to intervene or protest with the Federal not serve to make protestants parties to of Practice and Procedure (18 CFR Energy Regulatory Commission, 888 the proceeding. Any person wishing to 385.214 and 385.211) and the First Street, N.E., Washington, D.C. become a party must file a motion to regulations under the Natural Gas Act 20426, in accordance with sections intervene. Copies of this filing are on (18 CFR 157.10). All protests filed with 385.214 and 385.211 of the file with the Commission and are the Commission will be considered by Commission’s Regulations. All such available for public inspection. it in determining the appropriate action motions or protests must be filed as Linwood A. Watson, Jr., to be taken but will not serve to make provided in Section 154.210 of the Acting Secretary. the protestants parties to the Commission’s Regulation. Protests will [FR Doc. 96–5621 Filed 3–8–96; 8:45 am] proceeding. Any person wishing to be considered by the Commission in BILLING CODE 6717±01±M become a party in any proceeding determining the appropriate action to be herein must file a motion to intervene taken, but will not serve to make in accordance with the Commission’s protestants parties to the proceeding. [Docket No. CP96±85±000] rules. Any person wishing to become a party National Fuel Gas Supply Corporation; Take further notice that, pursuant to must file a motion to intervene. Copies Notice of Amendment the authority contained in and subject to of this filing are on file with the the jurisdiction conferred upon the Commission and are available for public March 5, 1996. Commission by Sections 7 and 15 of the inspection in the Public Reference Take notice that on January 4, 1996, Natural Gas Act and the Commission’s Room. National Fuel Gas Supply Corporation Rules of Practice and Procedure, a Linwood A. Watson, Jr., (National Fuel), 10 Lafayette Square, hearing will be held without further Acting Secretary. Buffalo, New York 14203, requested that notice before the Commission or its [FR Doc. 96–5628 Filed 3–8–96; 8:45 am] its abandonment application, filed on designee on this amendment if no BILLING CODE 6717±01±M November 24, 1995, in Docket No. motion to intervene is filed within the CP96–85–000, pursuant to Section 7(b) time required herein, if the Commission of the Natural Gas Act and Part 157 of of its own review of the matter finds [Docket No. CP95±130±001] the Commission’s Regulations be that permission and approval for the proposed abandonment are required by Northern Natural Gas Company; Notice 1 Order No. 497, 53 FR 22139 (June 14, 1988), III the public convenience and necessity. If of Petition to Amend FERC Stats. & Regs. ¶ 30,820 (1988); Order No. 497– a motion for leave to intervene is timely A, order on rehearing, 54 FR 52781 (December 22, March 5, 1996. 1989), III FERC Stats. & Regs. 30,868 (1989); Order filed, or if the Commission on its own Take notice that on February 27, 1996, No. 497–B, order extending sunset date, 55 FR motion believes that formal hearing is Northern Natural Gas Company 53291 (December 28, 1990), III FERC Stats. & Regs. required, further notice of such hearing (Northern), 1111 South 103rd Street, ¶ 30,908 (1990); Order No. 497–C, order extending will be duly given. Under the procedure sunset date, 57 FR 9 (January 2, 1992), III FERC Omaha, Nebraska 68124–1000, filed in Stats. & Regs. ¶ 30,934 (1991), rehearing denied, 57 herein provided for, unless otherwise Docket No. CP95–130–001 a petition FR 5815 (February 18, 1992), 58 FERC ¶ 61,139 advised, it will be unnecessary for (1992); Tenneco Gas v. FERC (affirmed in part and pursuant to Section 7(c) of the Natural National Fuel to appear or to be Gas Act to amend its certificate issued remanded in part), 969 F. 2d 1187 (D.C. Cir. 1992); represented at the hearing. Order No. 497–D, order on remand and extending in Docket No. CP95–130–000 on June sunset date, III FERC Stats. & Regs. ¶ 30,958 Linwood A. Watson, Jr., 30, 1995,1 authorizing the construction (December 4, 1992), 57 FR 58978 (December 14, Acting Secretary. 1992); Order No. 497–E, order on rehearing and and operation of certain compressor and extending sunset date, 59 FR 243 (January 4, 1994), [FR Doc. 96–5620 Filed 3–8–96; 8:45 am] town border station facilities, all as 65 FERC ¶ 61,381 (December 23, 1993); Order No. BILLING CODE 6717±01±M more fully set forth in the petition on 497–F, order denying rehearing and granting file with the Commission and open to clarification, 59 FR 15336 (April 1, 1994), 66 FERC public inspection. ¶ 61,347 (March 24, 1994); and Order No. 497–G, [Docket No. RP96±159±000] order extending sunset date, 59 FR 32884 (June 27, Northern proposes to install three 1994), III FERC Stats. & Regs. ¶ 30,996 (June 17, National Fuel Gas Supply Corporation; refurbished 1,100 horsepower iso-rated 1994). compressor units in lieu of the two 2 Standards of Conduct and Reporting Notice of Termination of Services Requirements for Transportation and Affiliate 1,600 horsepower units authorized in its Transactions, Order No. 566, 59 FR 32885 (June 27, March 5, 1996. original certificate for its Belleville 1994), III FERC Stats. & Regs. ¶ 30,997 (June 17, Take notice that on February 29, 1996, Compressor Station, Green County, 1994); Order No. 566–A, order on rehearing, 59 FR National Fuel Gas Supply Corporation Wisconsin. Northern states that this 52896 (October 20, 1994), 69 FERC ¶ 61,044 (October 14, 1994); Order No. 566–B, order on (National Fuel) tendered for filing, modification would allow more rehearing, 59 FR 65707 (December 21, 1994); 69 pursuant to Section 4 of the Natural Gas FERC ¶ 61,334 (December 14, 1994). Act, a notice of termination of gathering 1 71 FERC ¶ 61,418 (1995). 9690 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices operational flexibility as well as All such motions or protests must be [Docket No. TM96±3±37±000] reducing construction and installation filed as provided in Section 154.210 of costs. Northern estimates that the the Commission’s Regulations. All Northwest Pipeline Corporation; Notice reduction in construction costs would protests will be considered by the of Proposed Changes in FERC Gas amount to more than one million Commission in determining the Tariff dollars. Northern asserts that this appropriate action to be taken in this March 5, 1996. modification would not change the proceeding, but will not serve to make Take notice that on March 1, 1996, design flow or capacity from that protestant a party to the proceedings. Northwest Pipeline Corporation proposed in its original application. Any person wishing to become a party (Northwest) tendered for filing as part of Any person desiring to be heard or to must file a motion to intervene. Copies its FERC Gas Tariff the following tariff make any protest with reference to said of this filing are on file with the sheets, to become effective April 1, petition to amend should on or before Commission and are available for 1996: March 15, 1996, file with the Federal inspection. Third Revised Volume No. 1 Energy Regulatory Commission, Linwood A. Watson, Jr. Fifth Revised Sheet No. 14 Washington, D.C. 20426, a motion to Acting Secretary. intervene or a protest in accordance [FR Doc. 96–5631 Filed 3–8–96; 8:45 am] Original Volume No. 2 with the requirements of the BILLING CODE 6717±01±M Seventeenth Revised Sheet No. 2.1 Commission’s Rules of Practice and Procedure (18 CFR 384.214 or 385.211) Northwest states that the purpose of this filing is to propose new fuel use and the Regulations under the Natural [Docket No. RP96±164±000] Gas Act (18 CFR 157.10). All protests requirements factors (‘‘Factors’’) for filed with the Commission will be Northern Natural Gas Company; Notice Northwest’s transportation and storage rate schedules. The Factors are considered by it in determining the of Proposed Changes in FERC Gas determined each year to become appropriate action to be taken but will Tariff not serve to make the protestants parties effective April 1 pursuant to Section to the proceeding. Any person wishing March 5, 1996. 14.12 of the General Terms and to become a party to a proceeding or to Take notice that on March 1, 1996, Conditions contained in Northwest’s participate as a party in any hearing Northern Natural Gas Company FERC Gas Tariff, Third Revised Volume therein must file a motion to intervene (Northern), tendered for filing changes No. 1, and pursuant to section 5 of Sheet in accordance with the Commission’s in its FERC Gas Tariff, Fifth Revised No. 2.1 in Northwest’s FERC Gas Tariff, Rules. Volume No. 1. Original Volume No. 2. Northern states that the filing revises Northwest states that Fifth Revised Linwood A. Watson, Jr., Sheet No. 14 of Third Revised Volume Acting Secretary. the current GSR surcharge which is designed to recover Northern’s gas No. 1 and Seventeenth Revised Sheet [FR Doc. 96–5619 Filed 3–8–96; 8:45 am] supply realignment costs. Therefore, No. 2.1. of Original Volume No. 2 BILLING CODE 6717±01±M Northern has filed the Twentieth propose a Factor of 1.58% for Revised Sheet Nos. 50 and 51 to revise transportation service rate schedules TF–1, TF–2, TI–1, T–1 and for all [Docket No. RP96±163±000] the GSR surcharge, effective April 1, 1996. transportation service rate schedules Northern Natural Gas Company; Notice Northern states that copies of this contained in Original Volume No. 2 of of Proposed Changes in FERC Gas filing were served upon the Company’s Northwest’s FERC Gas Tariff. Northwest also states that Fifth Tariff customers and interested State Revised Sheet No. 14 proposes a Factor Commissions. Take notice that on March 1, 1996, of 1.51% for service at the Jackson Any person desiring to be heard or to Northern Natural Gas Company Prairie Storage Project under Rate protest said filing should file a motion (Northern), tendered for filing changes Schedules SGS–1, SGS–2F and SGS–2I. to intervene or protest with the Federal in its FERC Gas Tariff, Fifth Revised This tariff sheet also revises the Factor Energy Regulatory Commission, 888 Volume No. 1. for the Plymouth LNG Facility storage First Street, N.E., Washington, D.C., Northern states that the filing revises service to 1.88% for Rate Schedules LS– 20426, in accordance with Sections the current Stranded Account No. 858 1, LS–2F and LS–2I. and Stranded Account No. 858-Reverse 385.214 and 385.211 of the Any person desiring to be heard or Auction surcharges, which are designed Commission’s Rules and Regulations. protest this filing should file a motion to recover costs incurred by Northern All such motions or protests must be to intervene or protest with the Federal related to its contracts with third-party filed as provided in Section 154.210 of Energy Regulatory Commission, 888 pipelines. Therefore, Northern has filed the Commission’s Regulations. All First Street, N.E., Washington, DC Twenty First Revised Sheet Nos. 50 and protests will be considered by the 20426, in accordance with Sections 51 to be effective April 1, 1996. Commission in determining the 385.214 and 385.211 of the Northern states that copies of this appropriate action to be taken in this Commission’s Rules and Regulations. filing were served upon the Company’s proceeding, but will not serve to make All such motions or protests must be customers and interested state protestant a party to the proceedings. filed as provided in Section 154.210 of commissions. Any person wishing to become a party the Commission’s Regulations. Protests Any person desiring to be heard or to must file a motion to intervene. Copies will be considered by the Commission protest said filing should file a motion of this filing are on file with the in determining the appropriate action to to intervene or protest with the Federal Commission and are available for be taken, but will not serve to make Energy Regulatory Commission, 888 inspection. protestants parties to the proceeding. First Street, N.E., Washington, D.C. Linwood A. Watson, Jr., Any person wishing to become a party 20426, in accordance with Sections Acting Secretary. must file a motion to intervene. Copies 385.214 and 385.211 of the [FR Doc. 96–5632 Filed 3–8–96; 8:45 am] of this filing are on file with the Commission’s Rules and Regulations. BILLING CODE 6717±01±M Commission and are available for public Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices 9691 inspection in the Public Reference Panhandle states that in accordance show the projected amount of fuel usage Room. with Section 154.2(d) of the and lost and unaccounted for gas that Linwood A. Watson, Jr., Commission’s regulations a copy of this will be required for the projected Acting Secretary. filing. In addition, copies of this filing transportation and storage volumes FR Doc. 96–5638 Filed 3–8–96; 8:45 am] are being served on all affected provided for under Panhandle’s customers and applicable state transportation and storage Rate BILLING CODE 6717±01±M regulatory agencies. Schedules effective April 1, 1996. Any person desiring to be heard or to Panhandle states that copies of this protest this filing should file a motion filing are being served on all affected [Docket No. RP96±166±000] to intervene or protest with the Federal customers and applicable state regulatory agencies. Panhandle Eastern Pipe Line Energy Regulatory Commission, 888 First Street, N.E., Washington, DC Any person desiring to be heard or to Company; Notice of Proposed protest this filing should file a motion Changes in FERC Gas Tariff 20426, in accordance with 18 CFR 385.214 and 385.211 of the to intervene or a protest with the March 5, 1996. Commission’s Rules and Regulations. Federal Energy Regulatory Commission, Take notice that on March 1, 1996, All such motions or protests must be 888 First Street, N.E., Washington, DC Panhandle Eastern Pipe Line Company filed as provided in Section 154.210 of 20426, in accordance with 18 CFR (Panhandle) tendered for filing as part of the Commission’s Regulations. Protests 385.214 and 385.211 of the its FERC Gas Tariff, First Revised will be considered by the Commission Commission’s Rules and Regulations. Volume No. 1, the tariff sheets listed on in determining the appropriate action to All such motions or protests must be Appendix A to the filing, to become be taken, but will not serve to make filed as provided in Section 154.210 of effective April 1, 1996. protestants parties to the proceeding. the Commission’s Regulations. Protests Panhandle states that this filing Any person wishing to become a party will be considered by the Commission removes from Panhandle’s currently must file a motion to intervene. Copies in determining the appropriate action to effective rates the Additional Take-or- of this filing are on file with the be taken, but will not serve to make Pay Volumetric Surcharge established Commission and are available for public protestants parties to the proceeding. by Section 18.10 of the General Terms inspection in the Public Reference Any person wishing to become a party and Conditions of Panhandle’s tariff Room. must file a motion to intervene. Copies which was the subject of Panhandle’s Linwood A. Watson, Jr., of this filing are on file with the filing in Docket No. RP94–153–000. The Acting Secretary. Commission and are available for public inspection in the Public Reference current volumetric surcharge and the [FR Doc. 96–4634 Filed 3–8–96; 8:45 am] Room. provisions of Section 18.10 were BILLING CODE 6717±01±M established in a Stipulation and Linwood A. Watson, Jr., Agreement (Settlement) dated July 19, Acting Secretary. 1994 which the Commission approved [Docket No. TM96±4±28±000] [FR Doc. 96–5639 Filed 3–8–96; 8:45 am] in orders dated September 22, 1994, 68 BILLING CODE 6717±01±M Panhandle Eastern Pipe Line FERC ¶ 61,353 (1994), and December 22, Company; Notice of Proposed 1994, 69 FERC ¶ 61,383 (1994). Section Changes in FERC Gas Tariff [Docket No. RP96±152±000] 18.10(b)(4) provides for an initial Recovery Period which commenced on March 5, 1996. Southern Natural Gas Company; April 1, 1994 and will terminate on Take notice that on March 1, 1996, Notice of GSR Cost Recovery Filing March 31, 1996. Accordingly, Panhandle Eastern Pipe Line Company Panhandle is now proposing to remove (Panhandle) tendered for filing as part of March 5, 1996. 0.19¢ from the current 1.19¢ TOP its FERC Gas Tariff, First Revised Take notice that on February 27, 1996, Volumetric Surcharge, thus reducing the Volume No. 1, the tariff sheets listed on Southern Natural Gas Company surcharge to 1.00¢. Appendix A to the filing, to become (Southern) tendered for filing as part of Panhandle further states that Section effective April 1, 1996. its FERC Gas Tariff, Seventh Revised 18.10 (g) of the General Terms and Panhandle states that this filing is Volume No. 1, the following tariff sheets Conditions provides for a Reconciliation made in accordance with Section 24 with the proposed effective date of April Recovery Period if it is determined that (Fuel Reimbursement Adjustment) of 1, 1996. Panhandle has not fully recovered the the General Terms and Conditions in Tariff Sheets Applicable to Contesting Additional Take-or-Pay Settlement Panhandle’s FERC Gas Tariff, First Parties Costs at the conclusion of the initial 24- Revised Volume No. 1. The revised tariff Eighth Revised Sheet No. 14 month recovery period. A Volumetric sheets filed herewith reflect the Thirtieth Revised Sheet No. 15 Surcharge is to be re-established during following changes to the Fuel Eighth Revised Sheet No. 16 the Reconciliation Recovery Period to Reimbursement Percentages: Thirtieth Revised Sheet No. 17 recover any such deficiency. Currently, Eighteenth Revised Sheet No. 18 (1) a 0.07% increase in the Gathering Fuel Nineteenth Revised Sheet No. 29 Panhandle projects that an unrecovered Reimbursement Percentage; balance will exist at March 31, 1996. Nineteenth Revised Sheet No. 30 (2) A (0.44%) decrease in the Field Zone Nineteenth Revised Sheet No. 31 Accordingly, pursuant to Section 18.10 Fuel Reimbursement Percentage; (b)(4) of the General Terms and (3) a (0.01%) decrease in the Market Zone Tariff Sheets Applicable to Supporting Conditions of Panhandle’s tariff, Fuel Reimbursement Percentage; Parties Panhandle expects to file on or before (4) No change in the Field Area Storage Second Revised Sheet No. 14A May 1, 1996, supporting workpapers Reimbursement Percentages; and Ninth Revised Sheet No. 15A and tariff sheets to implement a new (5) No change in the Market Area Storage Second Revised Sheet No. 16A surcharge to be effective June 1, 1996 for Fuel Reimbursement Percentages. Ninth Revised Sheet No. 17A the twelve month Reconciliation Panhandle further states that it has Southern sets forth in the filing its Recovery Period. included detailed computations which revised demand surcharges and revised 9692 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices interruptible rates that will be charged Southern states that copies of the 385.214 and 385.211 of the in connection with its recovery of GSR filing were served upon all parties listed Commission’s Regulations. All such costs associated with the payment of on the official service list compiled by motions or protests must be filed as price differential costs under realigned the Secretary in these proceedings. provided in Section 154.210 of the gas supply contracts or contract buyout Any persons desiring to be heard or Commission’s Regulations. Protests will costs associated with continuing to protest said filing should file a be considered by the Commission in realignment efforts as well as sales motion to intervene or protest with the determining the appropriate action to be function costs during the period Federal Energy Regulatory Commission, taken, but will not serve to make November 1, 1995 through January 31, 888 First Street, NE., Washington DC protestants parties to the proceeding. 1996. These GSR costs have arisen as a 20426, in accordance with 18 CFR Any person wishing to become a party direct result of customers’ elections 385.214 and 385.211 of the must file a motion to intervene. Copies during restructuring to terminate their Commission’s Rules of Practice and of this filing are on file with the sales entitlements under Order No. 636. Procedure. All such motions or protests Commission and are available for public Southern states that copies of the must be filed as provided in section inspection in the Public Reference filing were served upon Southern’s 154.210 of the Commission’s Room. customers and interested state Regulations. Protests will be considered Linwood A. Watson, Jr., commissions. by the Commission in determining the Acting Secretary. Any person desiring to be heard or to appropriate action to be taken, but will [FR Doc. 96–5629 Filed 3–8–96; 8:45 am] protest said filing should file a motion not serve to make protestants parties to BILLING CODE 6717±01±M to intervene or protest with the Federal the proceeding. Any person wishing to Energy Regulatory Commission, 888 become a party must file a motion to First Street, N.E., Washington, D.C. intervene. Copies of Southern’s filing [Docket No. RP96±156±000] are on file with the Commission and are 20426, in accordance with Sections Texas Eastern Transmission available for public inspection. 385.214 and 385.211 of the Corporation; Notice of Proposed Commission’s Rules of Practice and Linwood A. Watson, Jr., Changes in FERC Gas Tariff Procedure. All such motions or protests Acting Secretary. must be filed as provided in Section [FR Doc. 96–5627 Filed 3–8–96; 8:45 am] March 5, 1996. 154.210 of the Commission’s BILLING CODE 6717±01±M Take notice that on February 29, 1996, Regulations. Protests will be considered Texas Eastern Transmission Corporation by the Commission in determining the (Texas Eastern) tendered for filing as appropriate action to be taken, but will [Docket No. RP96±160±000] part of its FERC Gas Tariff, Sixth not serve to make the protestants parties Revised Volume No. 1, the following to the proceeding. Any person wishing Tennessee Gas Pipeline Company; tariff sheets with a proposed effective to become a party must file a motion to Notice of Proposed Changes in FERC date of April 1, 1996: Gas Tariff intervene. Copies of Southern’s filing Third Revised Sheet No. 143 are on file with the Commission and are March 5, 1996. Third Revised Sheet No. 144 available for public inspection. Take notice that on February 29, 1996, Third Revised Sheet Nos. 145–155 Linwood A. Watson, Jr., Tennessee Gas Pipeline Company Texas Eastern states that the filing is Acting Secretary. (Tennessee) tendered for filing as part of submitted pursuant to Section 15.2(G), [FR Doc. 96–5622 Filed 3–8–96; 8:45 am] its FERC Gas Tariff, Fifth Revised Transition Cost Tracker, of the General BILLING CODE 6717±01±M Volume No. 1, the following tariff Terms and Conditions of Texas sheets, with an effective date of April 1, Eastern’s FERC Gas Tariff, Sixth Revised 1996: Volume No. 1, and as a limited [Docket No. RP96±158±000] Third Revised Sheet No. 206 application pursuant to Section 4 of the Natural Gas Act, 15 U.S.C. Section 717c Southern Natural Gas Company; Substitute Original Sheet No. 209B Substitute Original Sheet No. 209C (1988), and the Rules and Regulations of Notice of GSR Revised Tariff Sheets Substitute Original Sheet No. 209D the Federal Energy Regulatory March 5, 1996. Original Sheet No. 209E Commission (Commission) promulgated Fourth Revised Sheet No. 212 Take notice that on February 29, 1996, thereunder. Southern Natural Gas Company Tennessee states that the proposed Texas Eastern states that the purpose (Southern) tendered for filing as part of filing allows an OBA holder to group of the filing is to continue its recovery its FERC Gas Tariff, Seventh Revised two FS contracts for SSO purposes, of Order No. 636 transition costs Volume No. 1, the following tariff sheets implements a fuel treatment option for incurred by upstream pipelines and with the proposed effective date of the SSO, and modifies the SSO flowed through to Texas Eastern as March 1, 1996: Transportation Component crediting initially approved by the Commission mechanism of the SSO as well as the by order dated March 31, 1995 in Tariff Sheets Applicable to Contesting charge for mid-month interzonal trades Docket No. RP95–174–000. Texas Parties under the cash out mechanism. Eastern states that this filing covers Seventh Revised Sheet No. 14 Tennessee states that copies of the approximately $3.3 million of net Twenty-ninth Revised Sheet No. 15 filing have been mailed to all affected upstream transition costs for the period Seventh Revised Sheet No. 16 customers and state regulatory January 1, 1995 through December 31, Twenty-ninth Revised Sheet No. 17 commissions. 1995, which is a reduction of Southern states that the proposed Any person desiring to be heard or to approximately 30% from the last filing. tariff sheets reflect a slight increase in protest this filing should file a motion Texas Eastern states that the costs Southern’s March 1, 1996 FT and FT– to intervene or protest with the Federal included in this filing have been NN surcharge as a result of the removal Energy Regulatory Commission, 888 partially offset by refund amounts of a credit to the GSR surcharge for First Street, N.E., Washington, D.C. received from upstream suppliers and February 1996. 20426, in accordance with Sections that carrying charges calculated Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices 9693 pursuant to the Commission’s Commissions and other interested April 1, 1996 through March 31, 1997 Regulations are included from the date parties. and Appendix D contains workpapers of payment of the costs or receipt of the Any person desiring to be heard or to supporting the calculation of the TEP refund amount to the projected date of protest said filing should file a motion Deferred Account. payment by the customers. to intervene or protest with the Federal Transco states that it is serving copies Texas Eastern states that copies of the Energy Regulatory Commission, 888 of the instant filing to its customers, filing were served on all firm customers First Street, NE., Washington, DC 20426, State Commissions, and other interested of Texas Eastern and applicable state in accordance with 18 CFR 385.214 and parties. commissions. 385.211 of the Commission’s Rules and Any person desiring to be heard or to Any person desiring to be heard or to Regulations. All such motions or protest said filing should file a motion protest said filing should file a motion protests must be filed as provided in to intervene or protest with the Federal to intervene or protest with the Federal Section 154.210 of the Commission’s Energy Regulatory Commission, 888 Energy Regulatory Commission, 888 Regulations. Protests will be considered First Street, Washington, D.C. 20426, in First Street, NE., Washington, DC 20426, by the Commission in determining the accordance with Sections 385.214 and in accordance with Sections 385.214 appropriate action to be taken, but will 385.211 of the Commission’s Rules and and 385.211 of the Commission’s Rules not serve to make protestants parties to Regulations. All such motions or and Regulations. All such motions or the proceeding. Any person wishing to protests must be filed as provided in protests must be filed as provided in become a party must file a motion to Section 154.210 of the Commission’s Section 154.210 of the Commission’s intervene. Copies of this filing are on Regulations. Protests will be considered Regulations. Protests will be considered file with the Commission and are by the Commission in determining the by the Commission in determining the available for public inspection in the appropriate action to be taken, but will appropriate action to be taken, but will Public Reference Room. not serve to make protestants parties to not serve to make protestants parties to Linwood A. Watson, Jr., the proceeding. Any person wishing to the proceeding. Any person wishing to Acting Secretary. become a party must file a motion to become a party must file a motion to [FR Doc. 96–5643 Filed 3–8–96; 8:45 am] intervene. Copies of this filing are on intervene. Copies of this filing are on file with the Commission and are BILLING CODE 6717±01±M file with the Commission and are available or public inspection in the available for public inspection in the Public Reference Room. Public Reference Room. [Docket No. TM96±11±29±000] Linwood A. Watson, Jr., Linwood A. Watson, Jr., Acting Secretary. Transcontinental Gas Pipe Line Acting Secretary. Corporation; Notice of Proposed [FR Doc. 96–5644 Filed 3–8–96; 8:45 am] [FR Doc. 96–5625 Filed 3–8–96; 8:45 am] Changes in FERC Gas Tariff BILLING CODE 4717±01±M BILLING CODE 6717±01±M March 5, 1996. [Docket No. TM96±5±30±000] Take notice that on March 1, 1996 [Docket No. TM96±10±29±000] Transcontinental Gas Pipe Line Trunkline Gas Company; Notice of Transcontinental Gas Pipe Line Corporation (Transco) tendered for Proposed Changes in FERC Gas Tariff Corporation; Notice of Filing filing certain revised tariff sheets to its FERC Gas Tariff, Third Revised Volume March 5, 1996. March 5, 1996. No. 1 and Original Volume No. 2, which Take notice that on March 1, 1996, Take notice that on March 1, 1996, tariff sheets are enumerated in Trunkline Gas Company (Trunkline) Transcontinental Gas Pipe Line Appendix A attached to the filing, to be tendered for filing as part of its FERC Corporation (Transco) tendered for effective April 1, 1996. Gas Tariff, First Revised Volume No. 1, filing certain revised tariff sheets to Transco the instant filing is submitted the following tariff sheets, to become Third Revised Volume No. 1 and pursuant to Section 41 of the General effective April 1, 1996: Original Volume No. 2 of its FERC Gas Terms and Conditions of Transco’s 1st Rev Fourteenth Revised Sheet No. 6 Tariff enumerated in Appendix A FERC Gas Tariff which provides that 1st Rev Fourteenth Revised Sheet No. 7 attached to the filing, to be effective Transco will file to reflect net changes 1st Rev Fourteenth Revised Sheet No. 8 April 1, 1996. in the Transmission Electric Power 1st Rev Fourteenth Revised Sheet No. 9 Transco states that the instant filing is (TEP) rates 30 days prior to each TEP 1st Rev Fourteenth Revised Sheet No. 10 submitted pursuant to Section 38 of the Annual Period beginning April 1. Trunkine states that this filing is General Terms and Conditions of Attached in Appendix B to the filing are being made in accordance with Section Transco’s FERC Gas Tariff which workpapers supporting the derivation of 22 (Fuel Reimbursement Adjustment) of provides that Transco will file, to be the revised TEP rates reflected on the the General Terms and Conditions in effective each April 1, a redetermination tariff sheet included therein. Trunkline’s FERC Gas Tariff, First of its fuel retention percentages The TEP rates are designed to recover Revised Volume No. 1. applicable to transportation and storage Transco’s transmission electric power Trunkline also states that on January rate schedules. The derivations of the costs for its electric compressor stations 29, 1996 Trunkline proposed, in Docket revised fuel retention percentages (Stations 100, 120, 145, and 205). The No. RP96–129–000, to base the included herein are based on Transco’s costs underlying the revised TEP rates calculation and application of its fuel estimate of gas required for operations consist of two components—the reimbursement percentage on the (GRO) for the forthcoming annual Estimated TEP Costs for the period quantity of gas received for, instead of period April 1996 through March 1997 April 1, 1996 through March 31, 1997 delivered to the account of its shippers. plus the balance accumulated in the plus the balance in the TEP Deferred On February 29, 1996, the Commission Deferred GRO Account at January 31, Account including accumulated interest accepted Trunkline’s proposal, subject 1996. as of January 31, 1996. Appendix C to Trunkline moving such change into Transco is serving copies of the contains schedules detailing the effect at least one day prior to April 1, instant filing to its customers, State Estimated TEP Costs for the period 1996. Because Trunkline intends to 9694 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices move into effect the referenced tariff WTG states that copies of the filing WIC states that copies of the filing change prior to April 1, 1996, the were served upon WTG’s customers and were served upon the company’s information contained in this filing interested state commissions. intervening jurisdictional customers and reflects fuel retention calculated on a Any persons desiring to be heard or interested state commissions. received volume basis, thus conforming to protest said filing should file a Any person desiring to be heard or to to the tariff revisions accepted in Docket motion to intervene or protest with the protest said filing should file a motion No. RP96–129–000. Federal Energy Regulatory Commission, to intervene or protest with the Federal Trunkline further states that the 888 first Street, N.E., Washington, D.C. Energy Regulatory Commission, 888 revised tariff sheets filed herewith 20426, in accordance with Sections First Street, NE., Washington, DC 20426, reflect: (1) a (0.58)% decrease (Field 385.214 and 385.211 of the in accordance with Sections 385.211 Zone to Zone 2), a (0.61)% decrease Commission’s Rules and Regulations. and 385.214 of the Commission’s Rules (Zone 1A to Zone 2), a (0.37)% decrease All such motions or protests must be and Regulations. All such motions or (Zone 1B to Zone 2), a (0.15)% decrease filed as provided in Section 154.210 of protests should be filed on or before (Zone 2 only), a (0.52)% decrease (Field the Commission’s Regulations. Protests March 12, 1996. Protests will be Zone to Zone 1B), a (0.55)% decrease will be considered by the Commission considered by the Commission in (Zone 1A to Zone 1B), a (0.31)% in determining the appropriate action to determining the appropriate action to be decrease (Zone 1B only), a (0.30)% be taken, but will not serve to make the taken, but will not serve to make decrease (Field Zone to Zone 1A), a protestants parties to the proceeding. protestants parties to the proceeding. (0.33)% decrease (Zone 1A only), and a Any person wishing to become a party Any person wishing to become a party (0.06)% decrease (Field Zone only) to must file a motion to intervene. Copies must file a motion to intervene. Copies the currently effective fuel of this filing are on file with the of this filing are on file with the reimbursement percentages. Commission and are available for public Commission and are available for public Trunkline states that a copy of this inspection in the Public Reference inspection in the Public Reference filing was mailed to affected shippers Room. Room. and interested state regulatory agencies. Linwood A. Watson, Jr., Linwood A. Watson, Jr., Any person desiring to be heard or to Acting Secretary. Acting Secretary. protest said filing should file a motion [FR Doc. 96–5645 Filed 3–8–96; 8:45 am] [FR Doc. 96–5626 Filed 3–8–96; 8:45 am] to intervene or protest with the Federal BILLING CODE 6717±01±M Energy Regulatory Commission, 888 BILLING CODE 6717±01±M First Street, N.E., Washington, D.C. 20426, in accordance with Sections [Docket Nos. RP96±157±000 and TM96±2± [Docket No. ER96±1167±000, et al.] 385.214 and 385.211 of the 76±000] Commission’s Rules and Regulations. Consolidated Edison Company of New All such motions or protests must be Wyoming Interstate Company, Ltd.; York, Inc., et al.; Electric Rate and filed as provided in Section 154.210 of Notice of Filing Corporate Regulation Filings the Commission’s Regulations. Protests March 5, 1996. March 5, 1996. will be considered by the Commission Take notice that on February 29, 1996, Take notice that the following filings in determining the appropriate action to Wyoming Interstate Company (WIC), have been made with the Commission: be taken, but will not serve to make tendered for filing its first annual 1. Consolidated Edison Company of protestants parties to the proceeding. Recomputation of Fuel, Lost and New York, Inc. Any person wishing to become a party Unaccounted-for Percentage (FL&U) must file a motion to intervene. Copies Filing with the Federal Energy [Docket No. ER96–1167–000] of this filing are on file with the Regulatory Commission. WIC proposes a Take notice that on February 26, 1996, Commission and are available for public December 1, 1995 effective date. WIC Consolidated Edison Company of New inspection in the Public Reference states that the FL&U percentage of 0% York, Inc. (Con Edison), tendered for Room. to .07% was based on the actual FL&U filing an agreement with LG&E Power Linwood A. Watson, Jr., usage adjusted for a measurement error Marketing, Inc. (LPM) to provide for the Acting Secretary. caused by pulsation at WIC’s Dull Knife sale of energy and capacity. For energy [FR Doc. 96–5642 Filed 3–8–96; 8:45 am] meter site, actual system throughput the ceiling rate is 100 percent of the BILLING CODE 6717±01±M and actual customer retention to date incremental energy cost plus up to 10 since the inception of WIC’s FL&U tariff percent of the SIC (where such 10 mechanism through December 31, 1995. percent is limited to 1 mill per Kwhr [Docket No. TQ96±2±35±000] On October 3, 1995, WIC states that it when the SIC in the hour reflects a West Texas Gas, Inc.; Notice of filed a motion for an extension of time purchased power resource). The ceiling Proposed Changes in FERC Gas Tariff within which to submit its annual FL&U rate for capacity is $7.70 per megawatt filing, in accordance with Section 24 of hour. Energy and capacity sold by LPM March 5, 1996. the General terms and Conditions in will be at market-based rates. Take notice that on March 1, 1996, WIC’s First Revised Volume No. 1 and Con Edison states that a copy of this West Texas Gas, Inc. (WTG), tendered Article 31 in WIC’s Second Revised filing has been served by mail upon for filing proposed changes in its FERC Volume No. 2. On October 20, 1995, the LPM. Gas Tariff, First Revised Volume No. 1. Commission granted WIC an extension Comment date: March 19, 1996, in WTG submitted Eighteenth Revised of time until February 29, 1996 to file accordance with Standard Paragraph E Sheet No. 4 to be effective April 1, 1996. its first annual FL&U filing so that at the end of this notice. This tariff sheet and the accompanying accurate measured volumes could be 2. Arizona Public Service Company explanatory schedules constitute WTG’s reflected in its filing. quarterly PGA filing submitted in WIC is also proposing a change in its [Docket No. ER96–1168–000] accordance with the Commission’s tariff to accommodate an FL&U Take notice that on February 26, 1996, purchased gas adjustments regulations. percentage of no less than zero. Arizona Public Service Company (APS), Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices 9695 tendered for filing an Amendment No. Comment date: March 19, 1996, in Comment date: March 19, 1996, in 2 (Amendment) to the O&M Agreement accordance with Standard Paragraph E accordance with Standard Paragraph E (Agreement) between APS and the City at the end of this notice. at the end of this notice. of Williams. This Amendment No. 2 5. Jersey Central Power & Light Standard Paragraph provides for APS to administer certain Company, Metropolitan Edison billing functions on behalf of the City of E. Any person desiring to be heard or Company, and Pennsylvania Electric Williams. to protest said filing should file a Company Copies of this filing have been served motion to intervene or protest with the upon the City of Williams and the [Docket No. ER96–1171–000] Federal Energy Regulatory Commission, Arizona Corporation Commission. Take notice that on February 26, 1996, 888 First Street, N.E., Washington, D.C. Comment date: March 19, 1996, in GPU Service Corporation (GPU), on 20426, in accordance with Rules 211 accordance with Standard Paragraph E behalf of Jersey Central Power & Light and 214 of the Commission’s Rules of at the end of this notice. Company, Metropolitan Edison Practice and Procedure (18 CFR 385.211 and 18 CFR 385.214). All such motions 3. Duke Power Company Company and Pennsylvania Electric Company (jointly referred to as the GPU or protests should be filed on or before [Docket No. ER96–1169–000] Companies), filed a Service Agreement the comment date. Protests will be Take notice that on February 26, 1996, between GPU and Toledo Edison considered by the Commission in Duke Power Company (Duke), tendered Company (TEC) dated February 20, determining the appropriate action to be for filing a Transmission Service 1996. This Service Agreement specifies taken, but will not serve to make Agreement (TSA) between Duke, on its that TEC has agreed to the rates, terms protestants parties to the proceeding. own behalf and acting as agent for its and conditions of the GPU Companies’ Any person wishing to become a party wholly-owned subsidiary, Nantahala Energy Transmission Service Tariff must file a motion to intervene. Copies Power and Light company, and Alabama accepted by the Commission on of this filing are on file with the Power Company, Georgia Power September 28, 1995 in Docket No. Commission and are available for public Company, Gulf Power Company, ER95–791–000 and designated as FERC inspection. Mississippi Power Company, Savannah Electric Tariff, Original Volume No. 3. Linwood A. Watson, Jr., Electric and Power Company and GPU requests a waiver of the Acting Secretary. Southern Company Services, Inc. Commission’s notice requirements for [FR Doc. 96–5681 Filed 3–8–96; 8:45 am] (Southern Companies). Duke states that good causes shown and an effective date BILLING CODE 6717±01±P the TSA sets out the transmission February 20, 1996 for the Service arrangements under which Duke will Agreement. GPU has served copies of provide Southern Companies non-firm the filing on regulatory agencies in New Sunshine Act Meeting transmission service under its Jersey and Pennsylvania and on TEC. Transmission Service Tariff. Comment date: March 19, 1996, in March 6, 1996. Comment date: March 19, 1996, in accordance with Standard Paragraph E The following notice of meeting is accordance with Standard Paragraph E at the end of this notice. published pursuant to section 3(a) of the at the end of this notice. Government in the Sunshine Act (Pub. 6. Jersey Central Power & Light L. 94–409), 5 U.S.C. 552b: 4. Jersey Central Power & Light Company, Metropolitan Edison Company, Metropolitan Edison Company, and Pennsylvania Electric AGENCY HOLDING MEETING: Federal Company, and Pennsylvania Electric Company Energy Regulatory Commission. Company [Docket No. ER96–1172–000] DATE AND TIME: March 13, 1996, 10:00 a.m. [Docket No. ER96–1170–000] Take notice that on February 26, 1996, Take notice that on February 26, 1996, GPU Service Corporation (GPU), on PLACE: 888 First Street, NE., Room 2C, GPU Service Corporation (GPU), on behalf of Jersey Central Power & Light Washington, DC 20426. behalf of Jersey Central Power & Light Company, Metropolitan Edison STATUS: Open. Company, Metropolitan Edison Company and Pennsylvania Electric MATTERS TO BE CONSIDERED: Agenda. Company and Pennsylvania Electric Company (jointly referred to as the GPU * Note—Items listed on the agenda may Company (jointly referred to as the GPU Companies), filed a Service Agreement be deleted without further notice. Companies), filed a Service Agreement between GPU and Aquila Power between GPU and Cleveland Electric Corporation (AQUILA) dated December CONTACT PERSON FOR MORE INFORMATION: Illuminating Company (CEI) dated 29, 1995. This Service Agreement Lois D. Cashell, Secretary, Telephone February 20, 1996. This Service specifies that AQUILA has agreed to the (202) 208–0400. For a recording listing Agreement specifies that CEI has agreed rates, terms and conditions of the GPU items stricken from or added to the to the rates, terms and conditions of the Companies’ Energy Transmission meeting, call (202) 208–1627. GPU Companies’ Energy Transmission Service Tariff accepted by the This is a list of matters to be Service Tariff accepted by the Commission on September 28, 1995 in considered by the Commission. It does Commission on September 28, 1995 in Docket No. ER95–791–000 and not include a listing of all papers Docket No. ER95–791–000 and designated as FERC Electric Tariff relevant to the items on the agenda; designated as FERC Electric Tariff, Original Volume No. 3. however, all public documents may be Original Volume No. 3. GPU requests a waiver of the examined in the reference and GPU requests a waiver of the Commission’s notice requirements for information center. Commission’s notice requirements for good causes shown and an effective date Consent Agenda—Hydro; 648th Meeting— good causes shown and an effective date December 29, 1995, for the Service March 13, 1996; Regular Meeting (10:00 December 29, 1995 for the Service Agreement. GPU has served copies of a.m.) Agreement. GPU has served copies of the filing on regulatory agencies in New CAH–1. the filing on regulatory agencies in New Jersey and Pennsylvania and on Docket No. P–2288–009, Public Service Jersey and Pennsylvania and on CEI. AQUILA. Company of New Hampshire 9696 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices

Other Nos. P–2311–008, James River-New Omitted Reserved Hampshire Electric, Inc. CAG–9. II. CAH–2. Docket No. RP95–409–002, Northwest Pipeline Certificate Matters Docket No. P–2406–004, Duke Power Pipeline Corporation PC–1. Company CAG–10. Reserved CAH–3. Docket No. RP95–349–001, The Brooklyn Lois D. Cashell, Docket No. P–2459–007, West Penn Power Union Gas Company v. CNG Secretary. Company Transmission Corporation CAH–4. CAG–11. [FR Doc. 96–5827 Filed 3–7–96; 11:22 am] Docket No. P–2465–004, Duke Power Docket No. FA90–65–002, Northern BILLING CODE 6717±01±P Company Border Pipeline Company CAH–5. CAG–12. Docket No. P–7481–085, NYSD Ltd. Docket No. RP95–19–001, Trunkline Gas ENVIRONMENTAL PROTECTION Partnership Company AGENCY CAH–6. CAG–13. OMITTED Omitted CAG–14. OMITTED [FRL±5438±8] CAH–7. CAG–15. Docket No. P–2614–021, City of Hamilton, Docket No. RP95–197–009, Performance Partnership Grants for Ohio Transcontinental Gas Pipe Line State and Tribal Environmental Consent Agenda—Electric Corporation Programs: Interim Guidance CAG–16. CAE–1. Docket No. MG96–6–000, AGENCY: U.S. Environmental Protection Docket No. ER96–373–000, MP Energy, Transcontinental Gas Pipe Line Agency. Inc. Corporation ACTION: Notice. CAE–2. CAG–17. Docket No. ER96–553–000, QST Energy Docket No. MG95–4–000, Northwest SUMMARY: Trading, Inc. The ‘‘Performance Pipeline Corporation Partnership Grants for State and Tribal CAE–3. CAG–18. Docket No. ER96–894–000, Baltimore Gas Docket No. RM96–9–000, Editorial Environmental Programs: Interim and Electric Company changes to various regulations to Guidance’’ provides information for: Other Nos. ER96–929–000, Potomac conform references to revised part 154 States and Tribes that apply for and Electric Power Company CAG–19. receive Performance Partnership Grants CAE–4. Docket No. IS96–12–000, Seaway Pipeline (PPGs); States applying for PPGs and Omitted Company entrance into the National CAE–5. CAG–20. Environmental Performance Partnership Docket No. ER94–1402–002, Cenergy, Inc. Docket No. CP91–50–003, Sumas CAE–6. System (NEPPS); and EPA Regions that Cogeneration Company, L.P. approve and award PPGs. Omitted CAG–21. CAE–7. Docket No. CP96–140–000, Tenneco Baja PPGs are intended to provide States Docket No. ER96–200–001, New England California Corporation and Tribes with greater flexibility to Power Company CAG–22. address their highest environmental Other Nos. ER96–233–001, New England Docket No. CP94–227–001, Trunkline Gas priorities, improve environmental Power Company; ER96–234–001, New Company performance, achieve administrative England Power Company; ER96–235– CAG–23. savings, and strengthen partnerships 001, New England Power Company; Docket No. CP95–668–000, CNG between EPA and the States or Tribes. ER96–236–001, New England Power Transmission Corporation and Texas FOR FURTHER INFORMATION CONTACT: Company; ER96–237–001, New England Eastern Transmission Corporation Power Company; ER96–238–001, New Other Nos. CP95–668–001, CNG Anne Robertson, Office of Water (4102), England Power Company Transmission Corporation and Texas U.S. Environmental Protection Agency, Consent Agenda—Gas and Oil Eastern Transmission Corporation 401 M Street, SW, Washington, DC CAG–24. 20460, Telephone: (202) 260–5034, CAG–1. Docket No. CP95–689–000, Conoco, Inc. FAX: (202) 260–5711, or Jack Bowles, Docket No. RP96–142–000, Texas Eastern Other Nos. CP95–687–000, Northern U.S. Environmental Protection Agency, Transmission Corporation Natural Gas Company CAG–2. Region VIII, 999 18th Street, Suite 500, CAG–25. Denver, CO 80202–2466, Telephone: Docket No. TM96–9–29–000, Docket No. CP96–113–000, Shell Gas Transcontinental Gas Pipe Line Pipeline Company (303) 312–6315, FAX: (303) 312–6067. Corporation CAG–26. SUPPLEMENTARY INFORMATION: EPA is CAG–3. Docket No. MT95–18–000, Alabama- offering PPGs to eligible States and Docket No. RP96–66–000, Mississippi Tennessee Natural Gas Company Tribes in Fiscal Year 1996 (FY96). A River Transmission Corporation CAG–27. CAG–4. PPG is a multi-program grant made to a Docket No. CP94–172–002, Mojave State or Tribal agency from funds Docket No. PR96–1–000, Equitable Storage Pipeline Company Company otherwise available for categorical grant CAG–5. Hydro Agenda programs. A State or Tribe can combine Docket No. RP95–314–001, Tennessee Gas H–1. funds from 2 or more of 16 eligible grant Pipeline Company Reserved programs into 1 or more PPGs. CAG–6. Recipients may then use PPGs to fund Electric Agenda Docket No. RP96–116–000, South Georgia activities that are within the cumulative Natural Gas Company E–1. eligibilities of the 16 eligible grant CAG–7. Reserved Docket No. RP95–65–000, Northern programs. Natural Gas Company Oil and Gas Agenda As of the date of this Federal Register Other Nos. RP95–69–000, Northern I. Notice, EPA does not yet have Natural Gas Company Pipeline Rate Matters authorization to award PPGs. Congress CAG–8. PR–1. included authority for awarding PPGs in Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices 9697 its FY96 EPA Appropriations Bill, but Grants, Audit and Procurement, Authority this bill did not become law. EPA can U.S. EPA—Region VIII, 999 18th • The House and the Senate have begin to award PPGs only after the Street, Suite 500, Denver, CO included the necessary appropriations enactment of this language. 80202–2466, (303) 312–6336. language. Additional contacts for information Jack Bowles, U.S. EPA—Region VIII, • It appears likely that authority will on PPGs are: 999 18th Street, Suite 500, Denver, exist when EPA’s appropriations act Headquarters: CO 80202–2466, (303) 312–6315. becomes law. Bruce Feldman, Chief, Grants Policy, Region 9: • EPA cannot award PPGs until the Information and Training, or Ellen Melinda Taplin, Chief, Grants necessary appropriations language Haffa, Grants Administration Management Section (P–4–4), U.S. becomes law. Division, U.S. EPA (3901F), 401 M EPA—Region IX, 75 Hawthorne • Authority would apply to funds Street, SW, Washington, DC 20460, Street, San Francisco, California from sixteen grants funded from EPA’s (202) 260–2523. 94105, (415) 744–1693. proposed Program and Infrastructure Region 1: Region 10: Assistance (PIA) appropriation. Robert Goetzl, Chief, Strategic Denise Baker, U.S. EPA—Region X, Planning Office, CSP, U.S. EPA— 1200 6th Avenue, Seattle, WA Eligibility Region I, John F. Kennedy Federal 98101, (206) 553–8087. • All States and federally recognized Building, One Congress Street, Dated: March 5, 1996. Indian Tribes (including environmental, Boston, Massachusetts 02203, (617) Dana Minerva, health, agriculture, and other State/ 565–3378. Tribal agencies) eligible to receive more Peter Connell, Manager, Grants Deputy Assistant Administrator, Office of Water. than one categorical grant in Fiscal Year Management Unit, AGM, U.S. (FY) 1996 are eligible to receive PPGs. Kerrigan Clough, EPA—Region I, John F. Kennedy • Local agencies are eligible if they: Federal Building, Boston, MA Assistant Regional Administrator, Office of (1) Are a State agency; and (2) receive 02203, (617) 565–3378. Pollution Prevention, State and Tribal Assistance, Region VIII. direct funding from EPA for two or more Region 2: of the eligible grant programs. Tierre Jeanne, Chief, Grants Performance Partnership Grants • PPGs do not affect State or Tribal Administration Branch, U.S. EPA— Guidance agency ‘‘pass-through’’ grants to local or Region II, 290 Broadway, New York, Executive Summary other agencies. NY 10007–1866, (212) 637–3402. • State/Tribal agency eligibility is John Malleck, Chief, Water Quality Performance Partnership Grants (PPGs) subject to the authority of the governor Management Section, Water A PPG is a multi-program grant made or State legislature, or Tribal authorities, Management Division, U.S. EPA— to a State or Tribal agency by the U.S. as appropriate. Region II, 290 Broadway, New York, Environmental Protection Agency (EPA) Application NY 10007–1866, (212) 637–3720. from funds allocated and otherwise • Region 3: available for categorical grant programs. States and Tribes may apply for Grants and Audit Management PPGs provide States and Tribes with the PPGs for any period after enactment of Branch, U.S. EPA—Region III, 841 option to combine funds from two or statutory authority for the program and Chestnut Street, Philadelphia, PA more categorical grants into one or more may convert FY 1996 categorical grants 19107, (215) 597–7805. PPGs. to a PPG during the year. • Applicants should apply for FY Region 4: Purpose Michelle Glenn, U.S. EPA—Region IV, 1996 categorical grants in the event that • 345 Courtland Street, Atlanta, GA Flexibility. States and Tribes will EPA does not receive PPG authority. 30365, (404) 347–7109 ext. 6878. have the flexibility to address their Applicants may use most of the same highest environmental priorities across elements (e.g. workplans or program Region 5: all media and establish resource plans) of the categorical application Tom Jackson, Acquisition and allocations based on those priorities, package for the PPG application Assistance Branch (MC–10J), U.S. while continuing to address core package. EPA will eliminate any EPA—Region V, 77 West Jackson program commitments. unnecessary or duplicative Blvd., Chicago, Illinois 60604, (312) • Improved Environmental documentation. 886–7523. Performance. States and Tribes can: (1) • PPG program commitments are the Region 6: More effectively link program activities programmatic basis for the PPG award Brenda Durden, Chief, Program with environmental goals and program and grant accountability. Commitments Planning and Grants Branch, U.S. outcomes; and (2) develop innovative may consist of environmental EPA—Region VI, 1445 Ross pollution prevention, ecosystem, and indicators, performance measures Avenue, Dallas, Texas 75202, (214) community-based strategies. (including measures of activity), and 665–6510. • Administrative Savings. Recipients narrative descriptions of program Joe Massey, Grants Management and EPA can reduce administrative activities or program elements. PPG Office, U.S. EPA—Region VI, 1445 burdens and costs by greatly reducing program commitments must have core Ross Avenue, Dallas, Texas 75202, the numbers of grant applications, program elements and performance (214) 665–7408. budgets, workplans, and reports. measures, as defined by appropriate Region 7: • Strengthened Partnerships. EPA environmental statutes, regulations and Carol Rompage, Grants Management will develop partnerships with States EPA or State policy. PPG program Officer, U.S. EPA—Region VII, 726 and Tribes where both parties share the commitments may be contained in Minnesota Avenue, Kansas City, KS same environmental and program goals categorical workplans, in an 66101. and deploy their unique resources and Environmental Performance Agreement Region 8: abilities to jointly accomplish those (EnPA) or in a Tribal Environmental Tony Medrano, Director, Office of goals. Agreement (TEA). 9698 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices

Funding and State/Tribal Cost Share EPA Regional Implementation recipients, and activities. Sections 4–8 • EPA’s allocation of grant funds to • EPA’s Regional Administrators will provide more specific guidance to States will be the same whether the be the designated approval and award Federal, State, and Tribal officials funds are awarded as PPGs or officials for PPGs, with the ability to responsible for implementing the grant categorically. PPGs do not adversely redelegate authority within their program. States and Tribes are affect a Tribe’s ability to compete for Regions. presented a variety of options for how any grant. • EPA Regions will designate a single to apply for and manage PPGs. Section • PPGs may fund any activities grant Project Officer for each PPG. 4, in particular, helps applicants eligible to be funded under sixteen • When State/Tribal PPG proposals identify reasons for applying for a PPG specified EPA grant authorities. present significant national policy and provides application criteria. Each • FY 1995 federal grant funds must be issues, EPA Regions will consult with section includes a checklist of steps and expended as categorical grants and may EPA’s national program managers. options. not be carried over into FY 1996 PPGs, Section 1.3 Purpose and Goals because authority for PPGs begins with Table of Contents FY 1996 federal funds. Section 1. Overview of EPA’s Performance President Clinton announced • EPA’s policy and goal is that States Partnership Grant Program Performance Partnership Grants on and Tribes should continue to spend, in Section 2. Authority March 16, 1995, as part of the effect, the same amount of funds for Section 3. Eligibility Administration’s program to ‘‘Reinvent environmental programs under PPGs as Section 4. PPG Application Options in FY Environmental Regulation.’’ PPGs are a under categorical grants. Although, 1996 part of EPA’s continuing effort to Section 5. EPA and Recipient Roles and reinvent government and build State under PPGs, recipients will have the Responsibilities flexibility to realign those resources Section 6. Funding and Tribal environmental protection among environmental programs based Section 7. Administrative Information capacity. This voluntary program is a on negotiated priorities in the EnPA/ Section 8. Post-Award Requirements response to recommendations from TEA, the total resources in the State or Attachment 1. Sample Performance Measures various internal and external Tribe, both Federal and non-Federal, stakeholders 1 to: Section 1. Overview of the U.S. targeted to environmental programs • Increase State and Tribal flexibility, should not be reduced, except in Environmental Protection Agency’s • Help States and Tribes improve exceptional circumstances, for example, Performance Partnership Grant environmental performance, • where a State or Tribe reduces funds Program Achieve administrative savings by streamlining the grants process, and across all State or Tribal agencies. Thus, Section 1.1 Scope of Guidance • the required cost share (based on the Strengthen EPA partnerships with A Performance Partnership Grant match or maintenance of effort State and Tribal governments. (PPG) is a single grant made to a State requirements of the categorical grants These previous recommendations or Tribe from grant funds allocated and included in the PPG) will be the same have formed the basis for the purposes otherwise available for existing under PPGs as under categorical grants, and goals of the PPG program, as categorical grant programs. PPGs are unless EPA determines that there are described below: voluntary and provide States and Tribes Flexibility. PPGs will provide States exceptional circumstances justifying a with the option to combine funds from and Tribes with flexibility to address reduction in cost share for a PPG for the two or more categorical grants into one their most pressing environmental year that the PPG is awarded. • Applicants may have a single PPG or more PPGs. Recipients may receive priorities across all media and establish budget for accounting and reporting their financial assistance as one or more resource allocations based on those purposes. PPG(s), or continue receiving funds as priorities, while continuing to address categorical grants. States and Tribes may core program commitments. They will State/Tribal Options apply for these grants for any period allow recipients to more effectively • The content of each PPG depends after enactment of statutory authority for administer core statutory, regulatory on its purpose and the extent to which the PPG program. and non-regulatory programs. a recipient would like to deviate from This Guidance provides direction for: Recipients will also be able to develop traditional categorical workplans or (1) States and Tribes that apply for and innovative multimedia programs and pilot the National Environmental receive PPGs; (2) States applying for activities that are difficult to fund with Performance Partnership System PPGs and piloting the National separate categorical grants. Moreover, (NEPPS). Below are the four major Environmental Performance Partnership recipients will have the option of categories of PPGs defined in this System (NEPPS); and (3) EPA Regions developing multi-year planning. guidance (applicants may suggest other that approve and award PPGs. This Improved Environmental options): document remains in effect until Performance. PPGs will encourage • Administrative flexibility and superseded by statute, federal States and Tribes to improve savings only (with categorical regulation, or amended guidance. EPA environmental performance and more workplans); expects to develop and issue regulations effectively link program goals with • Administrative and programmatic governing PPGs during FY 1996/1997. program outcomes. Recipients will be flexibility (with categorical workplans The Agency expects extensive and a supplemental EnPA or TEA that stakeholder involvement in the 1 The National Performance Review (‘‘Creating a explains the rationale and benefits of development of the regulation. Government That Works Better and Costs Less’’), September 1992; EPA’s State-EPA Capacity Steering the PPG); Section 1.2 Organization Committee recommendations in ‘‘Strengthening • Administrative and programmatic Environmental Management in the United States, flexibility; single/multimedia EnPA/ The guidance is divided into two Report of the Task Force to Enhance State TEA in place of categorical workplans; parts. Sections 1–3 present an overview Capacity,’’ Environmental Protection Agency, Office and of the new program, explaining the of the Administrator, EPA–270–R–93–001, July • 1993; and the National Academy of Public Any of the above PPG options and purpose and expected benefits of PPGs, Administration Report (‘‘Setting Priorities, Getting piloting the NEPPS. and identifying eligible grants, Results: A New Direction for EPA’’), April 1995. Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices 9699 able to establish priorities across all eligible categorical grants, some of the partnership agreement are increased environmental programs, and integrate sixteen (e.g., water media PPG), or reliance on self-management by State strategic goals such as pollution portions of some of them (e.g., an programs and a differential approach to prevention and community-based enforcement PPG). As summarized oversight that serves as an incentive for environmental protection into their below and explained in Section 4, State programs to perform well, program planning. States and Tribes application options are streamlined and rewarding strong programs and freeing will be able to achieve these objectives tailored to the specific goals of the PPG. up federal resources to address by: States and Tribes may apply for a PPG problems where State programs need • Coordinating and integrating using any of the following four options. assistance. activities which are now fragmented EPA will also work with States and NEPPS and PPGs share many of the under many statutes, regulations, and Tribes on any other options they would same objectives. Of course, States may programs, like to propose. apply for PPGs without piloting NEPPS • Conducting assessments to define I. Administrative flexibility and (and vice-versa) in FY 1996. But where environmental problems and set savings based on FY 1996 categorical States wish to apply for PPGs and enter priorities with the public, workplans (see Section 4.3). NEPPS, the processes and • Targeting the most significant II. Administrative and programmatic documentation are integrated and, environmental problems, flexibility with an Environmental where appropriate, identical. The • Building environmental protection Performance Agreement (EnPA)/Tribal Environmental Performance Agreement capacity through training, technical Environmental Agreement (TEA) that (EnPA) is a document that is common assistance and other appropriate means, includes FY 1996 categorical workplans. to both PPGs and NEPPS. For States and In this case, the categorical workplans doing both, the EnPA will allow the • Using common sense and still establish most of the PPG program processes and documentation to be multimedia environmental protection commitments. The EnPA/TEA also integrated (see Section 4.6 for more strategies such as pollution prevention, explains the rationale for the PPG and details). ecosystem protection, community-based identifies any additional PPG program Section 1.6 Relationship to Tribal protection and environmental justice. commitments (see Section 4.4). The emphasis on improved III. Administrative and Programmatic Environmental Agreements environmental performance will be flexibility based on an EnPA/TEA that On July 14, 1994, Administrator achieved by increasing the use of replaces categorical workplans. In this Browner issued a nine-point Action environmental indicators and program case, the EnPA/TEA establishes all of Memorandum on Strengthening Tribal performance measures, and decreasing the PPG program commitments (see Operations which called for the the reporting of inputs and activities. Section 4.5). development of Tribal-EPA Workplans Performance measures, to be developed IV. Application for a PPG under any (now called Tribal Environmental jointly by EPA and each State or Tribe, of the three previous options and Agreements) to be jointly developed by will gauge progress toward agreed upon piloting the National Environmental EPA Regions and Tribes. In consultation goals (see Section 1.7). Improved Performance Partnership System with the Agency’s Tribal Operations performance measures will provide the (NEPPS). Currently, this option is Committee, the American Indian foundation for better reporting, available for States, although interested Environmental Office and the National monitoring, and assessment of State, Tribes could explore applicability with Indian Work Group developed guidance Tribal and national environmental their Regional Administrator (see for the Tribal Environmental conditions. EPA expects that targeted Section 4.6). Agreements (TEAs). Currently, EPA Regions and Tribes are developing strategic approaches and improved Section 1.5 Relationship to Oversight performance measures, when TEAs, many of which will be signed Reform and the National Environmental within the next year. implemented together, will accelerate Performance Partnership System long-term systematic improvements in The TEAs (signed by the EPA environmental conditions. On May 17, 1995, State and EPA Regional Administrator and the Tribal Administrative Savings. EPA, States, leaders signed a ‘‘Joint Commitment to leadership) are a planning tool which and Tribes expect PPGs to reduce Reform Oversight and Create a National clearly identifies the Tribe’s administrative burdens and costs by Environmental Performance Partnership environmental objectives, expected reducing the overall number of grant System’’ (NEPPS). The objective of outcomes and resource needs, and applications, workplans, reports and signing this agreement was to accelerate implementation and management certifications associated with the transition to a new working assistance needed from EPA. The traditional, single media federal grants. relationship between EPA and the Agreements establish the Tribe’s Multi-year planning may also contribute States—one which reflects the environmental objectives over 3–4 to reduced administrative costs. advancement made in environmental years, but are flexible documents that Strengthened Partnerships. EPA will protection over the preceding two can be changed to meet Tribal needs. develop partnerships with States and decades by both the States and EPA. For Tribal PPGs, the TEAs will Tribes where both parties share the Key goals that this new partnership substitute for the State EnPAs. In order same environmental and program goals agreement share with PPGs are: to allow for the TEAs to also compare with the and jointly deploy their unique States and EPA to achieve improved EnPAs as commitment documents (PPG resources and abilities to accomplish environmental results by directing Options II–IV) where Tribes/States are those goals. scarce public resources toward the shifting funds, Tribes wanting to enter highest priority, highest value activities; a PPG will have to include a specific Section 1.4 Summary of State and to provide States with greater flexibility section on the anticipated PPG funds Tribal Options to achieve those results; to improve and program commitments in addition The PPG program is designed to public understanding of environmental to the other elements of the TEA or as provide maximum flexibility to States conditions and choices; and to enhance an amendment to an already signed and Tribes. Potential recipients may accountability to the public and TEA. By using the TEA instead of the apply for a PPG to replace all sixteen taxpayers. Other key goals of the NEPPS EnPA, the Tribes will not have to 9700 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices conduct two planning processes. The traditionally used to evaluate Categorical Grant—Media-specific or addition of a commitment section to the environmental programs. multimedia grant for a particular TEA should ensure that PPG funding Business Environmental Performance program or narrowly defined activities. shifts, commitments, and expectations measures assess environmental behavior Environmental Performance are clearly defined in one document in the private sector. Agreement (EnPA)—Broad strategic signed by both the Tribe and EPA. TEAs Environmental Indicators are document containing negotiated will be required for Tribes wherever measures of actual changes in air and environmental priorities and goals. The EnPAs are required for States. water quality, land use, and changes in EnPA may also include specific program living resources and human health. commitments that are incorporated by Section 1.7 PPG Accountability and Appropriate accountability provisions reference in the Performance Performance Measures are essential in designing the new PPG Partnership Grant Agreement. A State All PPGs will be required to contain program. A fundamental goal of EPA’s may use this document as a means to a legally binding set of program efforts to design accountability implement NEPPS, even if the State commitments. These program provisions into PPGs is to begin moving does not apply for a PPG. commitments will be the primary basis Federal, State, and Tribal programs National Environmental Performance for evaluating the success of a PPG. toward the use of results-oriented Partnership System (NEPPS)—A new Some program commitments will be measures of environmental and program approach to developing and required in all PPGs because they are performance that are understandable implementing the State-EPA oversight required by statute, regulation, standing and meaningful to the public. In recent relationship agreed to by the States and legal agreements between EPA and years, EPA, States, and Tribes, with EPA. It contains seven principal States/Tribes (e.g., Delegation input from the stakeholders and the components: (1) Increased use of Agreements), or National Program public, have embarked on new and environmental indicators; (2) a new Manager program guidance. Others will innovative strategic directions and approach to program assessments by be optional. developed or tested innovative States; (3) environmental performance For the purposes of this PPG performance measures that are a natural agreements; (4) differential oversight; (5) guidance, program commitments are ‘‘a fit to incorporate into PPGs. EPA performance leadership programs; (6) description of the PPG program goals believes that PPG performance measures public outreach and involvement; and and objectives, results and benefits should be consistent with ongoing EPA (7) joint system evaluation. expected, a plan of action, and and State or Tribal initiatives, such as National Program Manager— quantifiable projections of the program ‘‘The New Generation of Environmental Individual responsible for setting the and environmental accomplishments to Protection: EPA’s Five-Year Strategic direction and policy for the be achieved and the performance Plan,’’ 2 the National Environmental management of an EPA media or measures to be used. Where Goals Project, and EPA National enforcement program on a National accomplishments cannot be quantified, Program performance measures level. activities can be listed to show the (developed under the NEPPS initiative). Oversight Reform—Same as National schedule of accomplishments. PPG Examples of some potential Environmental Performance Partnership program commitments are the legal performance measures are included in System (see above). basis for the expenditure of federal grant Attachment 1. A more comprehensive Performance Partnership Grant funds and the recipient’s matching list of optional environmental indicators (PPG)—A PPG is a single grant made to requirement’’ (see Section 1.8). may be found in ‘‘Prospective Indicators a State or Tribe from grant funds allocated and otherwise available for During FY 1996, EPA will continue to for State Use in Performance more than one existing categorical grant work with States and Tribes to define Agreements’’ prepared under a program. PPGs are voluntary and will the elements of program commitments, cooperative agreement with the Florida provide States and Tribes with the including national environmental goals Center for Public Management, Florida option to combine funds from two or and performance measures. State University. This report provides a more of their categorical grants into one As EPA and States/Tribes negotiate preliminary list of national or more PPGs. Recipients must be program commitments under PPGs, they environmental indicators that may be eligible to receive the categorical grants are encouraged to use performance helpful to States, Tribes and EPA included in a PPG. However, the unique measures that measure program and looking for good ideas about available administrative requirements and environmental outcomes and outputs environmental indicators.3 limitations set forth in 40 CFR Part 35 more often than they now do. For FY 1996, performance measures Subpart A for each categorical program Performance measures that are PPG are required only if they are required by will not apply after the funding is program commitments must be statute, regulation or standing legal approved for a PPG. Only those quantifiable, measurable, and verifiable. agreements between EPA and States/ requirements that pertain to PPGs will Specifically, EPA encourages all States Tribes (e.g., Delegation Agreements), or if EPA National Program Managers or be applicable. and Tribes to adopt outcome and Performance Partnership Grant Regions have required them in guidance output-oriented performance measures Agreement—The legal instrument by or policy. that track program performance, which EPA will transfer money, environmental conditions and trends, Section 1.8 Definitions property, services or anything of value and business environmental Agency—United States to an eligible PPG grant recipient. The performance. agreement will specify: State/Tribal Program Performance Environmental Protection Agency • (EPA). Budget and project periods, measures suggest how effectively or • Federal share of eligible program reliably a State/Tribal Program is 2 costs, achieving its objectives. Measures may EPA 200–B–94–002. • Combined budget, 3 To obtain a copy of the document, contact EPA’s • be outcome or output oriented. They Office of Policy, Planning and Evaluation, at (202) PPG program commitments (see may include, where appropriate and 260–4909, or Florida State University at (904) 921– definition below), and necessary, activity measures 0423. • Any terms and conditions. Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices 9701

Performance Partnership Grant That beginning in fiscal year 1996 and each agencies—such as combining funds Program Commitments—A description fiscal year thereafter, and notwithstanding from an environmental department with of the PPG program goals and objectives, any other provision of law, the Administrator funds from program grants to an is authorized to make grants annually, from results and benefits expected, a plan of funds appropriated under this heading agriculture or health department—a action, and quantifiable projections of subject to such terms and conditions as the joint proposal signed by the appropriate the program and environmental Administrator shall establish, to any State or officials should indicate a method for accomplishments to be achieved and the federally recognized Indian Tribe for sharing funds in addition to performance measures to be used. multimedia or single media pollution demonstrating the eligibility, planning, Where accomplishments cannot be prevention, control, and abatement and accountability and evaluation elements quantified, activities can be listed to related environmental activities, at the of PPGs described in this guidance. show the schedule of accomplishments. request of the Governor or other appropriate If program eligibility, formerly State official, or the Tribe. PPG program commitments are the legal referred to as Treatment as State (TAS), basis for the expenditure of federal grant Section 2.2 Other Authorities is required for a Tribal applicant to be funds and the recipient’s matching The requirements of 40 CFR Part 31, eligible to receive categorical funding requirement. This guidance will ‘‘Uniform Administrative Requirements for a specific program, the Agency will commonly refer to PPG program for Grants and Cooperative Agreements require the same eligibility if the Tribal commitments as consisting of goals, to State and Local Governments,’’ will applicant intends to include funds for objectives, performance measures and apply to a PPG as they do to a that categorical grant in the PPG or to program activities. A set of core program categorical grant. Some limited use PPG funds for activities under that commitments must be included in the exceptions to 40 CFR Part 31 may be program. PPG Program Commitments. These core necessary to accommodate these grants. EPA encourages applicants to program commitments are based on EPA will manage such exceptions for combine funds from as many categorical requirements in statutes, regulations, FY 1996 awards through the grant program grants as possible into a PPG to standing legal agreements between EPA deviation process. Additional achieve maximum flexibility. and States/Tribes (e.g. Delegation requirements are included in Section 3.2 Eligible Grant Programs Agreements), and National Program substantive program regulations, OMB Manager guidance. Circulars A–87 and A–102, the EPA Funds available for the following Program Flexibility—Reduction of Assistance Administration Manual, sixteen grants identified in EPA’s FY EPA-State/Tribal Memoranda of 1996 Program and Infrastructure effort or elimination of a program 4 element in order to invest in another Agreement (MOA), NPM-Regional Assistance appropriation are eligible to media-specific or multimedia program Guidance and MOA, the NEPPS be combined into a PPG in FY 1996: 1. air pollution control (CAA section element. agreement signed on May 17, 1995 (for States piloting NEPPS), and E.O. 12372, 105), Tribal Environmental Agreement 2. water pollution control (CWA section (TEA)—A planning tool (signed by the ‘‘Intergovernmental Review of Federal Programs.’’ 106), EPA Regional Administrator and the 3. nonpoint source management (CWA Tribal leadership) which clearly Section 3. Eligibility section 319), identifies the Tribe’s environmental Section 3.1 Eligible Applicants 4. water quality cooperative agreements objectives, expected outcomes and (CWA section 104(b)(3)), resource needs, as well as All States, territories, and Federally 5. wetlands program development implementation and management recognized Indian Tribes eligible to (CWA section 104(b)(3)), assistance needed from EPA. The receive more than one of the categorical 6. public water system supervision Agreements establish the Tribe’s grants referred to in Section 3.2 in FY (SDWA sections 1443(a) and environmental objectives over 3–4 1996 are eligible to receive a PPG(s). 1451(a)(3)), years, but are flexible documents that Any duly authorized State or Tribal 7. underground water source protection can be changed to meet Tribal needs. entity that currently receives or is (SDWA section 1443(b)), eligible to receive EPA categorical Section 2. Authority 8. hazardous waste management (Solid program grants may request a PPG for Waste Disposal Act section 3011(a)), Section 2.1 Statutory Authority the funds it administers. This may 9. underground storage tank (Solid include agencies other than Waste Disposal Act section As of the date of this document, there environmental agencies (e.g., 2007(f)(2)), is not yet Federal authority providing agricultural and health agencies), where 10. radon assessment and mitigation for the award of PPGs by the authorized by State/Tribal law. (TSCA section 306), Administrator of EPA. The President Agencies that now receive pass-through 11. lead-based paint activities (TSCA proposed the necessary legislative funding from a State or Tribe may section 404(g)), authority with the FY 1996 Budget, and continue to receive such funding subject 12. toxics compliance and monitoring the House of Representatives and the to applicable State, Tribal or Federal (TSCA section 28) Senate have included the necessary law. For any agency that now receives 13. pollution prevention incentives for authority in EPA’s appropriations bill. direct Federal funding, but is not States (PPA section 6605) However, the Agency cannot award eligible for a PPG (e.g., local air 14. pesticide enforcement (FIFRA PPGs until EPA’s appropriations statute districts), EPA will continue to make section 23(a)(1)), is enacted, and the Office of Federal funding available pursuant to 15. pesticide applicator certification and Management and Budget and Congress existing categorical grant authorities. training (FIFRA section 23(a)(2)), and have approved the Agency’s Operating Eligibility for PPGs is subject to the Plan. The Agency will keep potential appropriate State, Tribal, or Territorial 4 There has been some discussion of changing the recipients informed as to the status of executive or legislative authorities. name of the Program and Infrastructure Assistance the necessary legislative authority. appropriation to the State and Tribal Assistance In the case of proposals which Grants appropriation. As of the date of issuance of The authorizing language included by the combine funds currently awarded to this document, no final decision had been made, House and Senate reads as follows: separate, duly authorized State or Tribal and no name change had occurred. 9702 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices

16. General Assistance Grants to Indian targeted NPDES permits, empowerment still establish most of the PPG program Tribes (Indian Environmental General zones), commitments. The EnPA/TEA also Assistance Program Act of 1992). • Support of Agency initiatives explains the rationale for the PPG and Only eligible Tribes can propose to including Common Sense Initiative & identifies any additional PPG program include these funds in a PPG Regulatory Reinvention (e.g., XL commitments (see Section 4.4). application. strategy implementation, market based III. Administrative and Programmatic Generally, grant funds that States strategies, local community risk flexibility based on an EnPA/TEA that combine into PPGs are those that assessment, negotiated rulemaking, replaces categorical workplans. In this third-party auditing, self certification for provide for continuing, ongoing, case, the EnPA/TEA establishes all of compliance), environmental programs. Because all the PPG program commitments (see EPA grants to Tribes are awarded • Environmental justice, Section 4.5). through a competitive or discretionary • Public outreach and involvement, process, Tribes will be allowed to • Information clearinghouses, IV. Application for a PPG under any include these grants in a PPG without • Environmental monitoring, of the three previous options and adverse affects to their ability to • Capacity building and piloting the National Environmental compete for any grant. For competitive environmental code development, and Performance Partnership System grants on the above list (e.g., pollution • Integration of regulatory and non (NEPPS). prevention incentives for States, regulatory strategies. Currently, this option is available for nonpoint source, wetlands program Section 4. PPG Application Options States, although interested Tribes could development, water quality cooperative explore applicability with their Regional agreements, general assistance program Section 4.1 Introduction Administrator (see Section 4.6). In grants to Tribes) to be combined in a This chapter presents the application addition to these options, EPA will PPG, the State or Tribe must first be options for States and Tribes applying continue working with States and Tribes awarded the competitive grant, and for a PPG(s). For FY 1996, all eligible to identify other application options for must identify specific output measures PPG applicants should apply for a implementing PPGs in FY 1996. as a condition for adding the funds to categorical grant(s) in the event that PPG applicants, like all State, local, a PPG. EPA will add the funds to the EPA’s appropriations statute is not PPG by a grant amendment. and Tribal federal grant applicants, will enacted with the necessary PPG continue to use the ‘‘Application for Section 3.3 Eligible Activities authority. As an alternative to Federal Assistance: State and Local Recipients may use PPGs to fund submitting separate categorical Non-Construction Programs’’ (Standard workplans and budgets, applicants may activities that are within the cumulative Form 424), including the required submit, in accordance with 40 CFR eligibilities of the grants listed in supporting documents. Submittal of this 35.145, a consolidated workplan and Section 3.2. Within these eligibilities, a application by a Governor or other budget. The consolidated budget should PPG may fund multimedia regulatory appropriate State or Tribal official will identify funds from each categorical and non-regulatory activities that could serve as the State’s or Tribe’s official grant program. The consolidated be difficult to fund under any request for a PPG. individual categorical grant. EPA, in workplan should identify how funds consultation with the States and Tribes, from each categorical grant program will Section 4.3 Option I. Applicants has developed a list of activities support particular activities. Seeking a PPG for Administrative indicative of those it hopes PPGs will Applicants choosing to apply only for Flexibility and Savings Based on FY encourage. The list does not indicate categorical grants for FY 1996 will 1996 Categorical Workplans pre-approval of activities and is not continue to follow the current process intended to be exhaustive. It merely and schedule for categorical grants. (For When an applicant has either illustrates the kind of activities which program grants with budget periods completed, or plans to complete, States, Tribes, the Agency and other ending on 9/30/95, applications were negotiation of its categorical grant stakeholders have identified as difficult due by 8/1/95. Reimbursement for pre- workplans for FY 1996, the PPG to conduct with categorical grants and award costs from 10/1/95 until the date program commitments will consist of for which PPGs would be appropriate. of award are only available if EPA has those grant workplans. The PPG Activities that PPGs may support, but received the application by 9/30/95). application should contain: are not limited to: • First page of Standard Form 424— • Section 4.2 PPG Options Pollution prevention oriented ‘‘Application for Federal Assistance,’’ Given the uncertainty of EPA’s multi-media rules, permitting, • compliance assistance, inspections, Congressional appropriations in FY Consolidated budget (separate enforcement, training, and facility 1996 and the fact that many States and categorical budgets totaled for funding planning ( e.g., one industry/one rule, Tribes have completed or nearly in the PPG), one stop emission reporting, permitting completed their categorical grant • A list of the grant programs (or and compliance assistance), applications, EPA is providing PPG portions thereof) from which funds will • Non regulatory pollution applicants with the following four be reprogrammed to a PPG(s), prevention technical assistance, application options: • A narrative statement explaining technology development and diffusion, I. Administrative flexibility and the rationale and expected benefits of and partnerships with accountants, savings based on FY 1996 categorical the PPG (i.e., improved performance of financiers, insurers, risk managers, workplans (see Section 4.3). the combined grant, administrative urban planners, chemists, product II. Administrative and programmatic savings, reinvestments), and designers and marketers, and other flexibility with an Environmental professions, Performance Agreement (EnPA)/Tribal • Categorical workplans proposed for • Ecosystem, community, sector, Environmental Agreement (TEA) that inclusion in the PPG (same workplans watershed, or airshed environmental includes FY 1996 categorical workplans. submitted with categorical applications protection strategies (e.g., watershed In this case, the categorical workplans can be used). Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices 9703

Section 4.4 Option II. Applicants program commitments. The EnPA/TEA investments/ disinvestments should be Seeking a PPG for Administrative and replaces the FY 1996 categorical identified here. Programmatic Flexibility, Based on an workplans. The PPG Agreement would • EPA Roles and Responsibilities in EnPA/TEA that Includes Categorical reference the sections of the EnPA/TEA Supporting State or Tribal Efforts. To Workplans that are PPG program commitments. In strengthen the federal partnership with States and Tribes, the EnPA/TEA should This section applies to applicants this case, a State or Tribe could: (1) describe how EPA will carry out its who will use PPGs to implement a new Continue to make media or program the federal responsibilities and how it will strategic direction, programmatic primary basis for organizing its PPG support the State’s or Tribe’s flexibility, or innovative environmental program commitments; or (2) organize environmental protection efforts. The protection strategies, not already PPG program commitments on some other primary basis (e.g., community- negotiated agreement should include explained in categorical grant the program commitments (goals, workplans. In this case, an EnPA/TEA based environmental protection). The PPG application should contain performance measures, and/or program will contain: the goals and rationale for activities) the recipient expects to the PPG; the FY 1996 categorical the following: • First Page of Standard Form 424— achieve under the PPG. The agreement workplans that establish most of the should also set forth procedures (e.g., PPG program commitments; and any ‘‘Application for Federal Assistance,’’ • Single budget supporting the PPG, mid-year and end-of-year reviews, additional PPG program commitments reporting requirements, joint activities) not contained in categorical workplans. and • An EnPA/TEA that includes: that EPA and the recipient will use for The PPG Agreement would reference evaluating accomplishments, discussing • A list of grants (or portions thereof) the categorical workplans and any other progress, and making adjustments to from which funds will be reprogrammed sections of the EnPA/TEA that contain meet milestones. PPG program commitments. The intent to a PPG(s), • • Core Program Commitments. The is to develop the EnPA in two phases. Negotiated environmental priorities EnPA/TEA must include core program In the first phase, EPA and the applicant and goals, • commitments (goals, performance negotiate and agree on environmental A narrative statement explaining measures, program activities) derived priorities and goals. In the second the rationale and expected benefits (i.e., from statutes, regulations, and standing phase, EPA and the applicant negotiate improved performance of the combined legal agreements between EPA and PPG program commitments to achieve grant, administrative savings, States/Tribes (e.g., Delegation these goals. disinvestments, reinvestments), Agreements). As appropriate and • The PPG application should contain Identification of EPA roles and negotiated between EPA Regions and the following: responsibilities, recipients, core program commitments • First Page of Standard Form 424— • PPG program commitments that and performance measures should ‘‘Application for Federal Assistance,’’ include: reflect National Program Manager • Single budget supporting the PPG, • Core program commitments, and guidance, EPA Headquarters-Regional and • Multimedia and additional media- MOA, Regional-State/Tribal MOA, and • An EnPA/TEA that includes: specific program commitments, other EPA or State/Tribal policies. EPA • A list of grants (or portions thereof) • A description of Public should work with States and Tribes to from which funds will be reprogrammed Participation efforts (optional), and balance the need to maintain core to a PPG(s), • Evaluation. program requirements with the need to • Negotiated environmental priorities The following explains in more detail incorporate program flexibility and and goals, some of the elements of the EnPA/TEA move toward program performance • A narrative statement explaining not previously addressed: measures and environmental indicators. the rationale and expected benefits (i.e., • Negotiated Environmental Priorities An EnPA/TEA may also include improved performance of the combined and Goals. This part of the EnPA/TEA measures for which data sources are not grant, administrative savings, is the product of negotiation between yet available if there is a commitment to disinvestments, reinvestments), senior Regional officials and State or develop reliable data sources. • Identification of EPA Roles and Tribal officials in positions to negotiate • Public Participation. For FY 1996, Responsibilities, across grant programs, where this is States and Tribes should continue to use • PPG program commitments appropriate. This part identifies the their current public participation consisting of: applicant’s most significant processes in conjunction with PPGs. • Categorical workplans proposed for environmental problems and the goals EPA believes that it is critical to involve inclusion in the PPG (workplans the applicant expects to achieve with all stakeholders in the process of submitted with categorical applications the PPG. This strategic planning process determining environmental priorities can be used), and reflects the applicant’s priorities (as and goals, and therefore strongly • Any additional multimedia or contained in any State or Tribal strategic encourages States and Tribes to involve strategic PPG program commitments plans or self-assessments), comparative stakeholders in identifying priority and performance measures, risk studies or other risk-based environmental problems. Recognizing • A description of public approaches, and national priorities the role and contribution of general participation efforts (optional), and (enumerated in EPA’s 5-year strategic purpose and special purpose local • Evaluation criteria and procedure. plan 5, the National Environmental governments in the Nation’s overall protection of the environment, EPA Section 4.5 Option III. Administrative Goals Project and National program priorities specified in EPA HQ/Regional strongly encourages States to engage and Programmatic Flexibility Based on local jurisdictions which would be an EnPA that Replaces Categorical Memorandums of Agreement). Major new strategic or program directions or affected by a PPG. EPA also encourages Workplans recipients to share with stakeholders the This section describes the elements of 5 ‘‘The New Generation of Environmental results of their FY 1996 activities a PPG application based entirely on an Protection: EPA’s Five-Year Strategic Plan,’’ (EPA defined in the EnPA/TEA. Effective EnPA/TEA that establishes PPG 200–B–94–002) public participation will establish the 9704 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices foundation for greater program environmental performance measures State and Tribal flexibility; (2) resulted flexibility and the achievement of better were part of the PPG program in States and Tribes adopting innovative environmental results. commitments); and (4) improved EPA/ environmental protection strategies; (3) • PPG Evaluation. The recipient grantee working relationships.6 After changed polluter behavior; and (4) should prepare a PPG annual report (as reviewing the annual report, the EPA improved public health and the described in 40 CFR 31.40(b)) as well as Project Officer will provide evaluation environment. satisfy any other reporting requirements findings to the recipient and will required in the PPG agreement. In include such findings in the official PPG Section 4.6 Applicants Seeking a PPG addition to evaluating performance file. and Piloting the National based on PPG program commitments, • Evaluating the National PPG Environmental Performance Partnership the recipient should identify any Program. EPA will request the System (NEPPS) in FY 1996 7 problems, delays or conditions which assistance of PPG recipients to evaluate This section applies to States materially affected the recipient’s ability the overall PPG process. Lessons interested in applying for a PPG and to meet the PPG objectives, and any learned from the FY 1996 experience piloting NEPPS. A State may choose to benefits that enabled the recipient to will be used to modify the program in perform better than expected. EPA and subsequent years. The overall PPG grant pilot NEPPS in combination with any of the States/Tribes are also interested in process will be evaluated by EPA and the PPG options described above. In knowing whether the work undertaken program participants in order to addition to providing the information under the grant: (1) Addressed the understand how well it is being for PPGs described in either Sections stated strategic priorities and goals; (2) implemented as a national program. In 4.3, 4.4, or 4.5, a NEPPS pilot State achieved administrative cost savings; (3) addition to the criteria used to evaluate would have to consult the May 17, 1995 where appropriate, improved individual PPGs, national criteria will NEPPS agreement for details of the environmental results (to the extent address whether PPGs: (1) Led to greater NEPPS system.

SUMMARY OF PPG APPLICATION REQUIREMENTS 1 Applicants For a PPG Applicants For a PPG Seeking Administrative & Seeking Administrative Programmatic Flexibility Applicants Seeking Admin. Flexibility Only Based on Based on Categorical & Program Flexibility PPG Application Elements Categorical Grant Grant Workplans. EnPA/ Based on an EnPA/TEA Workplans. Most Elements TEA Addresses Differences that Replaces Categorical Already in Categorical From Categorical Grant Workplans Workplans Workplans

Standard Form 424Ð``Application for Federal Assist- Required ...... Required ...... Required. ance'' (1st page). EnPA/TEA ...... Optional ...... Required ...... Required. Budget ...... Required ...... Required ...... Required. Grant Selection ...... Required ...... Required ...... Required. Rationale and expected benefits ...... Required ...... Required ...... Required. Negotiated Environmental Goals and Priorities ...... N/A ...... Required ...... Required. EPA Roles and Responsibilities to Support State and Optional ...... Required ...... Required. Tribal Efforts. PPG Program Commitments ...... Required ...... Required ...... Required. Categorical Workplans ...... Required ...... Required ...... N/A. Core Program Commitments ...... Required ...... Required ...... Required. Multimedia/strategic Program Commitments ...... Optional ...... Encouraged ...... Encouraged. Environmental Indicators ...... Optional ...... Optional ...... Optional. Evaluation of PPG ...... Required ...... Required ...... Required. Public Participation ...... Optional ...... Optional ...... Optional. 1 As noted in Section 4.1, due to the uncertainty of PPG legislation, all application options assume the submission of separate categorical workplans or a consolidated workplan. Key: N/A=Not Applicable. Note: States piloting NEPPS also reference May 17 NEPPS Agreement.

Section 4.7 Converting Categorical grants according to the current receipt of a final financial status report Grants to a PPG during FY 1996 categorical application schedule. EPA and funds reprogrammed into the PPG. The following procedures apply to will award the applicant’s categorical To facilitate the applicant’s receipt of its those applicants who receive a grants for FY 1996. If an applicant then total annual grant funding the applicant categorical grant for FY 1996 and desire decides to convert to a PPG, the should be prepared to indicate at the to convert from a categorical grant(s) to applicant must submit a PPG time of its categorical award whether it a PPG(s). application and consult with the anticipates participation in a PPG in FY The State or Tribe should submit Regional Administrator to select a start 1996. If so, the applicant should provide applications for all FY 1996 categorical date for the PPG. The Regional an estimated start date for the PPG. Administrator will arrange for the Applicants should refer to Section 4 for 6 The FY 1995 grant flexibility demonstration projects in New Hampshire, Massachusetts and necessary deobligation and additional instructions. North Dakota provide some useful lessons in reprogramming of funds. The Regional There is no deadline for submitting a evaluating combined grants. Updates on these Administrator will then award the PPG. PPG application to convert specified projects are available from Regions I and VIII. The FY 1996 categorical grant should be 7 Currently, this option is available for States, categorical grants during FY 1996. although interested Tribes could explore closed when appropriate and upon However, the sooner such an applicability with their Regional Administrator. Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices 9705 application is submitted, the more designate a team of sub-project officers Section 5.3 Recipients advantages of the PPG the recipient will to support the designated Project Recipients may wish to designate a realize in FY 1996. Officer, or set additional criteria for single point of contact for each PPG to Section 5. EPA and Recipient Roles designating the PO. serve as the counterpart to the EPA and Responsibilities Regional Program Manager. The Project Officer. This individual would managers of all programs included in be responsible for coordinating all Section 5.1 EPA Headquarters the PPG will jointly be the program programmatic and technical aspects of National Program Manager (NPM). managers of the PPG, as will other the PPG as well as for all intra-State or The NPMs set national strategic appropriate Regional management intra-Tribal agreements. Recipients direction and core program officials. Regional Program Managers: should identify these points of contact requirements and priorities for all (1) Will at a minimum be consulted in their PPG application. environmental programs. In any about/participate in negotiations with Section 6. Funding circumstance where a State or Tribe States and Tribes; (2) articulate Agency, proposes activities that will lead it to NPM and Regional goals and priorities Section 6.1 Project Period and significantly deviate from NPM and work with the States and Tribes to Availability of Funds priorities or regulatory requirements, or incorporate them into the EnPA/TEA; In consultation with the Regional raise issues of national consistency, the (3) serve as the principal source for Administrator, the applicant may Regions will consult with the technical program assistance to States choose to submit either annual or multi- appropriate NPM. In many cases, NPMs and Tribes; and (4) participate in State year EnPAs/TEAs or workplans. Budget also allocate national categorical grant and Tribal program evaluation as periods for PPGs will be for 12 months, funds to EPA’s Regions based on an defined by the EnPA/TEA. In any but the applicant has the flexibility to established allocation criteria. circumstance where a State or Tribe select, in consultation with the Regional Grants Administration Division proposes activities that will lead it to Administrator, the specific start and end (GAD). GAD responsibilities include: (1) significantly deviate from NPM dates for the budget period. Project Sponsoring Office for the Performance priorities or regulatory requirements, or periods may remain open to reflect the Partnership Grant Delegation of raise issues of national consistency, the continuing nature of PPGs. Project and authority; (2) approving Office for Regions will consult with the budget periods may not begin before the deviations to 40 CFR Part 31 required to appropriate NPM. date of enactment of PPG statutory implement PPGs in FY 1996; and (3) authority. sponsoring office for proposed PPG Regional Project Officer. As regulations (FY 1997). designated by the RA, the Performance Section 6.2 Award Amounts and Office of the Comptroller (OC). OC’s Partnership Grant Project Officer (PO) Distribution of Funds will be the primary point of contact for responsibilities include: (1) Establish National and Regional allocation of the grant recipient. This individual will and secure Congressional approval of grant funds to State and Tribal PPG program element; (2) propose be responsible for coordinating all recipients will be the same whether the Congressional approval to exempt new programmatic and technical aspects of funds are awarded as PPGs or PPG program element from the the EnPA/TEA and PPG program categorically. reprogramming limit; (3) distribute commitments and the PPG agreement. categorical grant funds to the Regions; All POs must have successfully Section 6.3 Reprogramming of Funds and (4) approve requests by the Regions completed the EPA training course EPA is proposing the establishment of to reprogram categorical grant funds ‘‘Managing Your Financial Assistance a specific PPG program element. into the PPG program element. Agreement—Project Officer Pending Congressional approval, EPA’s Responsibilities.’’ The POs should Section 5.2 EPA Regions Budget Division will continue to coordinate closely with the Regional allocate grant funds in the current Regional Administrator (RA). The RA Indian Coordinator/Regional Indian categorical program elements. Regional is the designated approval and award Office for Tribal PPGs. Budget Officers will request the official for PPGs with re-delegation Regional Grants Management Office reprogramming of funds into the PPG authority to the Deputy Regional (GMO). Regional GMOs are responsible program element. Reprogramming Administrator or the Division Director for carrying out all administrative requests will be made only after the PPG or equivalent level (See Section 7.1). functions associated with the receipt of project officer, EPA approval official The RA, or a senior regional official(s) the PPG application, processing of the and the Grants Management Office find designated by the RA, should conduct PPG award, and post-award the PPG application and PPG program the initial negotiations with the administrative management of the PPG commitments acceptable. (Currently, applicant to establish environmental grants. (These functions are the same as reprogramming requests over $500,000 priorities and goals (See Section 4.5). those for the award and management of require Congressional approval. EPA The RA should notify NPMs when their categorical grants.) will seek a Congressional exemption for programs are being incorporated into a PPG reprogramming.) The purpose Regional Budget Offices. Regional PPG and should keep the NPMs statement/justification that should be Budget Offices are responsible for informed of activities carried out under included in the reprogramming request submitting approval requests to PPGs that affect the NPMs’ programs. is: The RA should also designate a single Headquarters Budget Division for point of contact to serve as the Regional reprogramming of funds from Purpose: This action reprograms resources Performance Partnership Grant Project categorical program elements to the PPG ($ ) from existing categorical grants, air ($ program element and, upon approval, ), water ($ ), etc. to support the Officer (PO) on each award. Because implementation of the Performance PPGs cross programs, the PO should completing the reprogramming of the Partnership Grant for the State/Tribe of coordinate negotiations with the funds. Both the PPG award and llll. This transfer is authorized by the recipient on behalf of all the relevant obligation must include the State decision memorandum dated llll and EPA programs. The RA may wish to identifier code on transactions in IFMS. signed by llll. 9706 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices

Person to contact: llllllllllll effect, the same amount of funds for federal/recipient share ratios stated on Phone: llll (inc. area code) environmental programs under PPGs as the PPG grant award. While recipients Section 6.4 FY 1995 Carryover and under categorical grants. Although, must maintain adequate financial Unexpended Prior Year Funds under PPGs, recipients will have the records of their cost share, EPA may not flexibility to realign those resources require categorical financial reporting Unexpended State funds from FY among environmental programs based by recipients or track categorical match 1995 awards may not legally be used to on negotiated priorities in the EnPA/ shares or maintenance of effort (MOE) fund first-year (FY 1996) PPGs. The TEA, the total resources in the State or expenditures for those grant funds recipient, in consultation with the Tribe, both Federal and non-Federal, included in a PPG. Regional Administrator, may choose to targeted to environmental programs maintain FY 1995 unexpended balances Recipients should calculate a single, should not be reduced. Thus, the composite minimum cost share for each by extending the existing categorical required cost share (based on the match grants, consistent with limits of their PPGs. To calculate the or maintenance of effort requirements of minimum cost share for a 1996 PPG, established on carry-over by the the categorical grants included in the Comptroller General, or by applying for start with the amount of federal dollars PPG) will be the same under PPGs as from each program (source of funds) a partial FY 1996 categorical grant to under categorical grants, unless EPA cover the unexpended funds. Project going into the PPG. The minimum determines that there are exceptional required cost share for each portion is officers should inform recipients circumstances justifying a reduction in proposing to apply or to convert to a determined by following the cost share cost share for a PPG for the year that the requirements of the relevant categorical PPG for FY 1996 of the need to maintain PPG is awarded. The primary exception prior year accounts through extensions grant program (based on the source of is where a State or Tribe reduces funds funds). The minimum recipient cost until FY 1995 funds are expended. across all State or Tribal agencies. When Funds recovered from an applicant’s share for the PPG is the sum of the the reduction is due to a non-selective FY 1996 categorical grants will be minimum cost shares of the contributed reduction in the expenditures related to available to fund PPGs awarded in FY components shown in the fourth all programs and entities of the 1997 and beyond, provided there is column of the following example. executive branch of the State or Tribal consistency with the appropriation and/ Example. A State applies for a PPG government, EPA also will allow or the underlying categorical program combining its Water-106, Nonpoint Source, reductions in environmental program statutes and Comptroller Policy No.88– UIC, UST, RCRA and Air-105 categorical resources. 09 ‘‘Disposition of Unobligated Balances grants. The portion of the federal categorical of Assistance Awards.’’ FY 1997 It is also important to recognize that, grant funding from each program designated when the categorical funds are by the recipient to be reprogrammed to the carryover of unobligated balances will PPG is listed in the third column below. be allowed provided that the recipient reprogrammed into the PPG program element and the PPG is awarded, those (This amount does not necessarily reflect all uses the carryover award amount to the Federal dollars available to the recipient support either ongoing programmatic funds lose their categorical nature. The for that specific categorical program. The goals, a multi-year PPG workplan, or recipient’s minimum cost share recipient may choose to continue to receive those activities contemplated for the requirement applies to the entire grant. some of the program’s funding categorically.) next PPG award cycle’s goals. The recipient cost share must be The fourth column illustrates the minimum If the PPG program commitments expended for performance of the recipient cost share for each piece (based on includes activities that cannot be fully approved PPG program commitments as the cost share requirements of the program funded at the time of award, additional reflected in the approved PPG budget of that is the source of the funds). The fifth column notes the basis for the requirement. funding can be added as it becomes total estimated program costs, i.e., without regard to the original The total amount of federal money awarded available. The Regions may also in the PPG is the sum of the contributed forward-fund PPG awards. categorical source of federal funds and portions dollars in the third column. The categorical activities. As the costs of Section 6.5 Cost Share Requirements minimum recipient PPG cost share is the sum performing PPG work are incurred, the of the minimum recipient cost shares for EPA’s policy and goal is that States recipient will be reimbursed the federal each of the contributed portions shown in the and Tribes should continue to spend, in share of total expenditures based on the fourth column.

Federal Recipient Funding source PPG total share cost Share Basis of cost share

Water-106 ...... 1,239,064 1,087,995 151,069 1 MOE. Nonpoint Source ...... 924,333 554,600 369,733 2 MOE or 40% match. UIC ...... 78,796 59,097 19,699 25% match. UST ...... 216,667 162,500 54,167 25% match. RCRA ...... 465,989 349,492 116,497 25% match. Air-105 ...... 2,290,230 1,374,198 916,132 2,3 MOE or 40% match.

PPG ...... 5,215,079 3,587,882 1,627,297 PPG guidance. 1 The Water 106 program has no match requirement. However, it has a MOE requirement based on recurrent expenditures in the FY year end- ing (1) June 30, 1971 or (2) October 1, 1977, if the State is expending funds awarded in any fiscal year for construction grants management under section 205(g). This requirement obligates a State to spend at least the base year amount of money each year without regard to the amount of the federal award. EPA will continue to use this MOE requirement amount to calculate recipient minimum cost share when the Water 106 program is part of a PPG. 2 The Air 105 and the Nonpoint Source programs have both a match and an MOE requirement. The greater of the MOE or the match require- ments of these two programs will be used to calculate the minimum cost share requirement for a PPG, when the programs are part of a PPG. 3 Revenue generated by the collection of Clean Air Act Title V fees can only be used for the Title V Operating Permit program and cannot be used to meet cost share requirements for any grants, including PPGs as well as section 105 grants. Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices 9707

The minimum composite cost share for the measures cited in that grant agreement. obligations, unobligated balances, PPG in this example is $1,627,297, which is The Regional Administrator may also outlays, expenditures and program 31.2% of the PPG total of $5,215,079. The require the applicant to submit a level income. percentage is based on the ratio between the Recipients will track PPG funds to the total dollar value (Federal and non-Federal) of supplemental budget detail necessary of each program, activity, etc., included in to allow for adequate determination of total effort or costs incurred for the PPG the PPG(s) and the dollar value of its the allowability, allocability, necessity, work. EPA will reimburse the recipient respective cost sharing requirement. EPA and reasonableness of each element of for the federal share of the costs from uses this percentage to determine the program costs. Required budget detail the PPG budgetary program element. recipient’s share of each dollar expended for should not exceed levels supplied under PPG costs will not be tracked to each of the PPG(s). previous EPA categorical grant awards. the original individual categorical If a recipient chooses to split federal source(s) of grant funding. categorical funding between a PPG and a Section 7.3 Certifications categorical grant, the minimum required cost Section 8.3 Payment share for the PPG will be directly related to States/Tribes may submit one set of the portion of the categorical grant funds grant certifications (i.e., anti-lobbying, To reduce paperwork and facilitate moving to the PPG. The following is an debarment/suspension, SF424B— payment, EPA will encourage PPG example of how this would apply to the UST assurances and procurement) with the recipients to receive electronic funding cited above. If half of the funding PPG application on an annual basis— payments via the Automated was maintained in a categorical grant bundled certifications. Clearinghouse (ACH) System. Inability ($81,250 went to both the PPG and the to qualify for an ACH method of categorical grant), the minimum cost share Section 7.4 Standard Terms and payment will not preclude an otherwise for the PPG would be half of $54,167 or Conditions eligible recipient from receiving a PPG $27,083.50. If the cost share requirement for a EPA will add standard terms and award. categorical grant is a minimum percentage of conditions to the PPG agreement as Section 8.4 Allowable Costs the total grant program (combined federal required by the authorities set forth in and recipient contributions), the minimum sections 2.1 and 2.2. The PPG agreement OMB Circular A–87 (cost principles) allowable recipient contribution can be must cite the PPG program and EPA regulations in 40 CFR Part 31 calculated using a two step process. commitments as terms and conditions of will apply to PPGs to determine the Following is an example of how this would the agreement. The Region may add any reasonableness, allowability, necessity apply to the RCRA funding above: and allocability of costs. (1) Divide the available federal funding by additional State or Tribal specific terms the maximum federal share ($349,492 and conditions deemed appropriate and Section 8.5 Additions/Deletions of divided by 75%) The result is the minimum necessary on a case by case basis. Programs From Existing PPGS total program amount (federal and State Section 7.5 Grants Information and shares combined) for the grant ($465,989). (2) States/Tribes may elect which Subtract the federal contribution from the Control System (GICS) Data categorical program(s) or project grants minimum total program amount to determine The following GICS codes for PPGs will be included in its established PPG the minimum required recipient will be established when authorizing award(s), consistent with Section 3.2. In contribution. ($465,989¥$349,492 = legislation for these grants is in place. general, once an annual PPG is awarded $116,497. $116,497 represents 25% of the for a given fiscal year, EPA will —Program Code total.) authorize no programmatic deletions —Statutory Authority Code until the beginning of the next award Section 7. Administrative Information —Regulatory Code cycle. Once PPG program commitments —CFDA number Section 7.1 Delegation of Authority are approved and funds have been The Regional Administrator is the Section 8. Post-Award Requirements reprogrammed by EPA, the funds lose designated approval and award official their categorical identity and cannot be Section 8.1 Pre-Award Costs for PPGs with approval redelegation pulled out by an applicant. authority to the Deputy Regional Consistent with 40 CFR 35.141 and Funds for grants approved in the Administrator or the Division Director subject to the availability of funds, EPA middle of the fiscal year and level. References: Delegation #1–14- will reimburse applicants for allowable appropriate competitive grants may be Assistance Agreements; Performance costs incurred from the beginning of the added to the PPG subject to PO Partnership Grants Delegation. (Number approved budget period. approval. The PO and recipient will renegotiate the approved environmental to be assigned. The Performance Section 8.2 Financial Management performance agreement goals and revise Partnership Grant Delegation will be put and Reporting in place upon approval of authorizing the PPG program commitments and legislation.) PPG recipients will continue to follow budgets. EPA will reprogram the funds the regulations for Standards for to be added to a PPG. The recipient Section 7.2 Grant Budget Information Financial Management Systems must submit a formal amendment to add Applicants may merge funding for all contained in 40 CFR Part 31.20. Fiscal funding to the PPG. EPA will process PPG programs and activities into a control and accounting procedures of the amendments as expeditiously as single budget for accounting and the recipient applicant must be possible, while maintaining fiduciary reporting purposes. This budget must sufficient to permit preparation of responsibility, to accommodate the display a breakdown of costs by object Financial Status Reports for PPG recipient. class categories on Standard Form 424B. awards. If a recipient chooses to add a For applicants proposing multi-year PPG recipients must maintain categorical grant program to a two-year PPG program commitments, the accounting and financial records which PPG, the match requirements of that applicant need only reflect object class adequately identify the source (i.e., program will then be calculated as part costs for FY 1996. However, the budget Federal funds and match) and of the overall PPG composite match (see information must accurately reflect the application of funds provided for PPG Section 6.5). grant agreement and be able to be activities. These records should contain If the recipient drops a program at the tracked to support the performance relevant information such as end of a cycle, based on the recipient’s 9708 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices decision to redirect its efforts and with management, etc. Measures could —the percentage of population exposed the prior approval of the PPG PO, the include: to substandard water, PPG recipient shall be reimbursed for —percentage of NPDES permit holders —percentage of stream miles meeting allowable costs incurred during the PPG in significant non-compliance, designated uses, project period. —percentage of enforcement actions —percentage reductions in air pollution such as VOCs, Sox, etc., and Section 8.6 Enforcement taken within timely and appropriate guidelines, —percentage reductions in dangerous If a recipient materially fails to —percentage of permits up-to-date, blood-lead levels in children. comply with a term or condition in the —percentage of river, lake and estuary [FR Doc. 96–5711 Filed 3–8–96; 8:45 am] PPG award, EPA may impose sanctions miles monitored, in accordance with 40 CFR 31.43, —percentage of falsification rates in BILLING CODE 6560±50±P including the conversion of a PPG back drinking water data, to individual categorical grants during —percentage of enforcement actions the next award cycle. leading to supplement projects, FEDERAL COMMUNICATIONS COMMISSION Section 8.7 Disputes —number of permits avoided by helping companies reduce emissions below Notice of Public Information The dispute process set forth in 40 permit thresholds, CFR 31.70 will apply to PPGs. —number of multi-media inspections or Collections Submitted to OMB for Disagreements between the recipient permits, Review and Approval and EPA regarding PPG applications, —percentage of State or Tribal program March 4, 1996. including PPG program commitments, personnel trained in pollution SUMMARY: priorities and/or related performance prevention, ecosystem management, The Federal Communications indicators, or PPGs themselves, or environmental justice, and Commission, as part of its continuing including disallowances or enforcement —number of innovative pilot programs effort to reduce paperwork burden actions, are to be resolved at the lowest (e.g., voluntary programs). invites the general public and other Federal agencies to take this level possible, i.e., the project officer. Business Environmental Performance The Regional Administrator opportunity to comment on the Measures assess environmental behavior following proposed and/or continuing designates the Dispute Decision in the private sector. These measures Official—the next level of appeal after information collections, as required by can complement or substitute for the Paperwork Reduction Act of 1995, the project officer. Because of the multi- environmental indicators that may be media nature of the PPG program, it is Public Law 104–13. Comments are difficult or expensive to measure. requested concerning (a) whether the suggested that the Regional Measures could include: Administrator select a multi-media proposed collection of information is —compliance rates for particular Division Director in Regions where necessary for the proper performance of sectors, applicable, or the Region’s Senior the functions of the Commission, —percentage reductions in water Resource Official/Assistant Regional including whether the information shall generation rates (per unit product), have practical utility; (b) the accuracy of Administrator as the Disputes Decision —percentage reduction in total Official to resolve disputes arising the Commissions burden estimates; (c) emissions, ways to enhance the quality, utility, and under the PPG assistance agreements. —percentage of facilities participating The Regional Administrator will clarity of the information collected and in voluntary pollution prevention (d) ways to minimize the burden of the continue to be the final level of appeal programs and meeting their publicly at the Regional level. The Deputy collection of information on the stated pollution prevention goals, respondents, including the use of Administrator or his/her designee will —number of significant changes at any serve as the Headquarters Disputes automated collection techniques or entity (public or private) that have other forms of information technology. Review Official to resolve disputes been made as a result of compliance arising under PPG assistance agreements assistance in three categories: (1) DATES: Written comments should be appealed to Headquarters. notification, (2) regulatory submitted on or before April 10, 1996. If you anticipate that you will be Attachment 1—Sample Performance requirements, and (3) environmental submitting comments, but find it Measures improvements, —change in the compliance profile of a difficult to do so within the period of Below are examples of performance particular sector, regulated time allowed by this notice, you should measures that fall into three categories: advise the contact listed below as soon • population, or community that is the program performance measures, as possible. • business environmental focus of a compliance assistance ADDRESS: Direct all comments to performance measures, and initiative, • environmental indicators. —percent of entities (public or private) Dorothy Conway, Federal State/Tribal Program Performance within a particular sector, regulated Communications, Room 234, 1919 M Measures suggest how effectively or population, or community that have St., NW., Washington, DC 20554 or via reliably a State/Tribal program is received compliance assistance, and internet to [email protected] and operating, and are the ones we have —percent of facilities that participate in Timothy Fain, OMB Desk Officer, 10236 traditionally relied on to judge State and voluntary compliance assistance NEOB 725 17th Street, NW., programs and come in to compliance Washington, DC 20503 or Tribal programs. While these kinds of _ measures will still be required for PPGs, within the requisite correction period. fain [email protected]. the States’, Tribes’ and EPA’s goals are Environmental Indicators measure FOR FURTHER INFORMATION CONTACT: For to reduce these to a minimum, make the changes in air, water and land quality additional information or copies of the ones we use more meaningful, and parameters and human health. Measures information collections contact Dorothy develop useful measures of cross- could include: Conway at 202–418–0217 or via internet program activities such as multi-media —the percentage of population exposed at [email protected]. pollution prevention, ecosystem to substandard air, SUPPLEMENTARY INFORMATION: Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices 9709

OMB Approval No.: 3060–0303. FEDERAL RESERVE SYSTEM of Texas, Inc., Birmingham, Alabama; Title: Section 97.5 Station license and Compass Bancorporation of Texas, required. Formations of, Acquisitions by, and Inc., Wilmington, Delaware; to merge Form No.: N/A. Mergers of Bank Holding Companies with Royall Financial Corporation, Palestine, Texas, and thereby indirectly Type of Review: Reinstatement, The companies listed in this notice acquire The Royall National Bank of without change of a previously have applied to the Board for approval, approved collection. Palestine, Palestine, Texas. pursuant to the Bank Holding Company B. Federal Reserve Bank of Dallas Respondents: Individuals or Act of 1956 (12 U.S.C. § 1841 et seq.) households. (Genie D. Short, Vice President) 2200 (BHC Act), Regulation Y (12 CFR Part North Pearl Street, Dallas, Texas 75201- Number of Respondents: 40,000 225), and all other applicable statutes 2272: respondents. and regulations to become a bank 1. Southwest Bancorporation, Inc., Estimated Time Per Response: 3 holding company and/or to acquire the Houston, Texas; to become a bank seconds per response. assets or the ownership of, control of, or holding company by acquiring 100 Total Annual Burden: 40 hours. the power to vote shares of a bank or percent of the voting shares of Total Annualized Cost per bank holding company and all of the Southwest Bancorporation of Delaware, respondent: $0.10 This is the estimated banks and nonbanking companies Inc., Wilmington, Delaware, and thereby costs for photocopying the license. owned by the bank holding company, indirectly acquire Southwest Bank of Needs and Uses: The recordkeeping including the companies listed below. Texas, N.A., Houston, Texas. requirement in section 97.5 requires that The applications listed below, as well In connection with this application an original or photocopy of each as other related filings required by the Southwest Bancorporation of Delaware, amateur station license be retained at Board, are available for immediate Inc., Wilmington, Delaware, also has the station. This requirement is inspection at the Federal Reserve Bank applied to become a bank holding necessary so field personnel can quickly indicated. Once the application has company by acquiring 100 percent of determine whether the station is been accepted for processing, it will also the voting shares of Southwest Bank of licensed and is being operated in be available for inspection at the offices Texas, N.A., Houston, Texas. of the Board of Governors. Interested conformance with the terms of the Board of Governors of the Federal Reserve station license. This record should be persons may express their views in System, March 5, 1996. retained for 10 years in order to writing on the standards enumerated in Jennifer J. Johnson, the BHC Act (12 U.S.C. § 1842(c)). If the coincide with the operator license term. Deputy Secretary of the Board. proposal also involves the acquisition of OMB Approval No.: 3060–0302. a nonbanking company, the review also [FR Doc. 96–5671 Filed 3–8–96; 8:45 am] Title: Section 97.9 Operator license. includes whether the acquisition of the BILLING CODE 6210±01±F Form No.: N/A. nonbanking company complies with the Type of Review: Reinstatement, standards in section 4 of the BHC Act, Notice of Proposals to Engage in without change of a previously including whether the acquisition of the approved collection. Permissible Nonbanking Activities or nonbanking company can ‘‘reasonably to Acquire Companies that are Respondents: Individuals or be expected to produce benefits to the households. Engaged in Permissible Nonbanking public, such as greater convenience, Activities Number of Respondents: 40,000 increased competition, or gains in respondents. efficiency, that outweigh possible The companies listed in this notice Estimated Time Per Response: 3 adverse effects, such as undue have given notice under section 4 of the seconds per response. concentration of resources, decreased or Bank Holding Company Act (12 U.S.C. Total Annual Burden: 40 hours. unfair competition, conflicts of § 1843) (BHC Act) and Regulation Total Annualized Cost per interests, or unsound banking practices’’ Y, (12 CFR Part 225) to commence or to respondent: $0.10 This is the estimated (12 U.S.C. § 1843). Any request for engage de novo, or to acquire or control costs for photocopying the license. a hearing must be accompanied by a voting securities or assets of a company Needs and Uses: The recordkeeping statement of the reasons a written that engages either directly or through a requirement in section 97.9 requires that presentation would not suffice in lieu of subsidiary or other company, in a an amateur radio operator keep an a hearing, identifying specifically any nonbanking activity that is listed in § original or photocopy of his or her questions of fact that are in dispute, 225.25 of Regulation Y (12 CFR 225.25) amateur operator license in their summarizing the evidence that would or that the Board has determined by personal possession when serving as the be presented at a hearing, and indicating Order to be closely related to banking control operator of an amateur station. how the party commenting would be and permissible for bank holding This requirement is necessary so field aggrieved by approval of the proposal. companies. Unless otherwise noted, personnel can quickly determine Unless otherwise noted, nonbanking these activities will be conducted whether an operator is licensed in activities will be conducted throughout throughout the United States. conformance with the Communications the United States. Each notice is available for inspection Act of 1934, as amended as well as the Unless otherwise noted, comments at the Federal Reserve Bank indicated. International Telecommunications regarding each of these applications Once the notice has been accepted for Union Radio Regulations. This record must be received at the Reserve Bank processing, it will also be available for should be retained for 10 years in order indicated or the offices of the Board of inspection at the offices of the Board of to coincide with the license term. Governors not later than April 4, 1996. Governors. Interested persons may A. Federal Reserve Bank of Atlanta express their views in writing on the Federal Communications Commission. (Zane R. Kelley, Vice President) 104 question whether the proposal complies William F. Caton, Marietta Street, N.W., Atlanta, Georgia with the standards of section 4 of the Acting Secretary. 30303: BHC Act, including whether [FR Doc. 96–5594 Filed 3–8–96; 8:45 am] 1. Compass Bancshares, Inc., consummation of the proposal can BILLING CODE 6712±01±F Birmingham, Alabama; Compass Banks ‘‘reasonably be expected to produce 9710 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices benefits to the public, such as greater Board’s Regulation Y. This activity will actions at sites evaluated by the convenience, increased competition, or take place in Wheaton, Minnesota. Division of Health Assessment and gains in efficiency, that outweigh E. Federal Reserve Bank of Kansas Consultation (public health possible adverse effects, such as undue City (John E. Yorke, Senior Vice assessments), Division of Health Studies concentration of resources, decreased or President) 925 Grand Avenue, Kansas (health investigations), Division of unfair competition, conflicts of City, Missouri 64198: Health Education (community health interests, or unsound banking practices’’ 1. Shickley State Company, Shickley, education), and other parts and (12 U.S.C. § 1843). Any request for a Nebraska; to engage de novo through its programs of ATSDR as appropriate; (6) hearing on this question must be subsidiary, Campbell Apartments, Inc., coordinates inter-divisional community accompanied by a statement of the Shickley, Nebraska, and thereby engage involvement plans for sites where more reasons a written presentation would in community development activities than one division is conducting site not suffice in lieu of a hearing, pursuant to § 225.25(b)(6) of the Board’s activities; (7) coordinates ATSDR’s identifying specifically any questions of Regulation Y. Minority Health Program; (8) fact that are in dispute, summarizing the Board of Governors of the Federal Reserve coordinates other special projects as evidence that would be presented at a System, March 5, 1996 required. hearing, and indicating how the party Jennifer J. Johnson, Dated: March 1, 1996. commenting would be aggrieved by Deputy Secretary of the Board. David Satcher, approval of the proposal. [FR Doc. 96–5672 Filed 3–8–96; 8:45 am] Unless otherwise noted, comments Administrator, Agency for Toxic Substances BILLING CODE 6210±01±F and Disease Registry. regarding the applications must be received at the Reserve Bank indicated [FR Doc. 96–5712 Filed 3–8–96; 8:45 am] BILLING CODE 4160±70±M or the offices of the Board of Governors DEPARTMENT OF HEALTH AND not later than March 25, 1996. HUMAN SERVICES A. Federal Reserve Bank of Cleveland Centers for Disease Control and (John J. Wixted, Jr., Vice President) 1455 Agency for Toxic Substances and Prevention East Sixth Street, Cleveland, Ohio Disease Registry 44101: Citizens Advisory Committee on Public 1. Mid Am, Inc., Bowling Green, Ohio; Statement of Organization, Functions, Health Service Activities and Research to engage de novo through its and Delegations of Authority at Department of Energy (DOE) Sites: subsidiary, Mid Am Credit Corp., Part H, Chapter HT (Agency for Toxic Idaho National Engineering Laboratory Columbus, Ohio, in lending activities Health Effects Subcommittee pursuant to § 225.25(b)(1) of the Board’s Substances and Disease Registry) of the Regulation Y; and in leasing activities Statement of Organization, Functions, In accordance with section 10(a)(2) of pursuant to § 225.25(b)(5) of the Board’s and Delegations of Authority of the the Federal Advisory Committee Act Regulation Y. Department of Health and Human (Pub. L. 92–463), the Agency for Toxic B. Federal Reserve Bank of Atlanta Services (50 FR 25129–25130, dated Substances and Disease Registry (Zane R. Kelley, Vice President) 104 June 17, 1985, as amended most (ATSDR) and the Centers for Disease Marietta Street, N.W., Atlanta, Georgia recently at 59 FR 29815, dated June 9, Control and Prevention (CDC) 30303: 1994) is amended to reflect the transfer announces the following meeting. 1. Capital City Bank Group, Inc., of the Public Health Practice Coordination Group from the Office of Name: Citizens Advisory Committee on Tallahassee, Florida; to acquire First Public Health Service Activities and Financial Bancorp, Inc., Tallahassee, the Assistant Administrator to the Research at DOE Sites: Idaho National Florida, and First Federal Bank, Division of Health Education, Agency Engineering Laboratory Health Effects Tallahassee, Florida, and thereby engage for Toxic Substances and Disease Subcommittee (INEL). in operating a savings association, Registry. Is amended to reflect recently Times and Dates: 8 a.m.–4 p.m., March 26, pursuant to § 225.25(b)(9) of the Board’s approved organizational changes. Delete 1996. 8 a.m.–12 noon, March 27, 1996. Regulation Y. the title and functional statement for the Place: Owyhee Plaza Hotel, 1109 Main Public Health Practice Coordination Street, Boise, Idaho 83702, telephone 208/ C. Federal Reserve Bank of Chicago 343–4611, FAX 208/381–0695. (James A. Bluemle, Vice President) 230 Group (HTBD). Status: Open to the public, limited only by South LaSalle Street, Chicago, Illinois Delete the functional statement for the the space available. The meeting room 60690: Division of Health Education (HTC7) accommodates approximately 75 people. 1. First Chicago NBD Corporation, and insert the following: Background: Under a Memorandum of Chicago, Illinois; to acquire First (1) Coordinates health communication Understanding (MOU) signed in December Federal Savings Bank of Barrington, and education, developmental and 1990 with DOE, the Department of Health Barrington, Illinois, and thereby engage educational activities for emergency and Human Services (HHS) has been given the responsibility and resources for in operating a savings association response, and hazardous waste worker safety and health with Federal, State, conducting analytic epidemiologic pursuant to § 225.25(b)(9) of the Board’s investigations of residents of communities in Regulation Y. and local agencies and private the vicinity of DOE facilities, workers at DOE D. Federal Reserve Bank of organizations; (2) develops and facilities, and other persons potentially Minneapolis (James M. Lyon, Vice disseminates to physicians and other exposed to radiation or to potential hazards President) 250 Marquette Avenue, health care providers materials on the from non-nuclear energy production use. Minneapolis, Minnesota 55480: health effects of toxic substances; (3) HHS delegated program responsibility to 1. Community First Bankshares, Inc., establishes and maintains a list of areas CDC. Fargo, North Dakota; to acquire closed or restricted to the public In addition, an MOU was signed in October Community Insurance, Inc., Fargo, because of contamination with toxic 1990 and renewed in November 1992 between ATSDR and DOE. The MOU North Dakota, and thereby engage in substances; (4) initiates research related delineates the responsibilities and operating an insurance agency in a town to its mandates that will help prevent procedures for ATSDR’s public health of less than 5,000 in population adverse health effects from hazardous activities at DOE sites required under pursuant to § 225.25(b)(8)(iii) of the substances; (5) coordinates follow-up sections 104, 105, 107, and 120 of the Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices 9711

Comprehensive Environmental Response, permanently debarring John D. Copanos, agency’s proposal to issue an order Compensation, and Liability Act (CERCLA or 6504 Montrose Ave., Baltimore, MD under section 306(a) of the act debarring ‘‘Superfund’’). These activities include health 21212, from providing services in any Mr. Copanos from providing services in consultations and public health assessments capacity to a person that has an any capacity to a person that has an at DOE sites listed on, or proposed for, the Superfund National Priorities List and at approved or pending drug product approved or pending drug product sites that are the subject of petitions from the application. FDA bases this order on its application. FDA based the proposal to public; and other health-related activities finding that Mr. Copanos was convicted debar Mr. Copanos on its finding that he such as epidemiologic studies, health of a felony under Federal law for had been convicted of felonies under surveillance, exposure and disease registries, conduct relating to the regulation of a Federal law for conduct relating to the health education, substance-specific applied drug product under the act. regulation of a drug product. research, emergency response, and EFFECTIVE DATE: March 11, 1996 In the Federal Register notice of preparation of toxicological profiles. November 9, 1994, FDA informed Mr. Purpose: This subcommittee is charged ADDRESSES: Application for termination with providing advice and recommendations of debarment to the Dockets Copanos that his request for a hearing to the Director, CDC, and the Administrator, Management Branch (HFA–305), Food could not rest upon mere allegations or ATSDR, regarding community, American and Drug Administration, 12420 denials but must present specific facts Indian Tribes, and labor concerns pertaining Parklawn Dr., Rm. 1–23, Rockville, MD showing that there was a genuine and to CDC’s and ATSDR’s public health 20857. substantial issue of fact requiring a activities and research at respective DOE hearing. FDA also informed Mr. FOR FURTHER INFORMATION CONTACT: sites. Activities shall focus on providing a Copanos that if it conclusively appeared Christine F. Rogers, Center for Drug forum for community, American Indian from the face of the information and Tribal, and labor interaction and serve as a Evaluation and Research (HFD–7), Food factual analyses in his request for a vehicle for community concern to be and Drug Administration, 7500 Standish hearing that there was no genuine and expressed as advice and recommendations to Pl., Rockville, MD 20855, 301–594– substantial issue of fact which CDC and ATSDR. 2041. Matters to be Discussed: Agenda items precluded the order of debarment, FDA SUPPLEMENTARY INFORMATION: include: presentations from the National would enter summary judgment against Center for Environmental Health (NCEH), the I. Background him and deny his request for a hearing. National Institute for Occupational Safety In a letter dated December 8, 1994, John D. Copanos was the owner and and Health, and ATSDR updates on the Mr. Copanos requested a hearing, and in president of John D. Copanos and Sons, progress of current studies; discussion of the a letter dated January 6, 1995, Mr. State oversight program; INEL Dose Inc., and Kanasco, Ltd., when, on Copanos submitted arguments and Evaluation Report; and updates on the November 13, 1989, he agreed to plead information in support of his hearing technical workshop on ‘‘Calculating and guilty to one count of distributing request. In his request for a hearing, Mr. Interpreting Radiological Doses and Risks for misbranded drugs with intent to Copanos does not dispute that he was Individuals Exposed to Radionuclides Due to mislead, a Federal felony offense under Historical Releases from the Hanford Nuclear convicted of a felony under Federal law sections 301(a) of the act (21 U.S.C. Reservation’’ and a public involvement as alleged by FDA. However, Mr. 331(a)) and 303(a)(2)(previously 303(b)) activities. Copanos argues that: (1) He did not of the act (21 U.S.C. 333(a)(2)) Agenda items are subject to change as receive proper notice; (2) he is entitled priorities dictate. (previously 21 U.S.C. 333(b)), and one to a hearing to contest or explain the Contact Persons for More Information: count of causing the adulteration of facts underlying his plea; (3) some Arthur J. Robinson, Jr., or Nadine Dickerson, drugs with intent to mislead, a Federal factual statements in the agency’s Radiation Studies Branch, Division of felony offense under sections 301(k) and proposal are inaccurate; (4) the agency’s Environmental Hazards and Health Effects, 303(a)(2) of the act. On February 16, NCEH, CDC, 4770 Buford Highway, NE, (F– reliance on portions of the indictment is 1990, the United States District Court 35), Atlanta, Georgia 30341–3724, telephone inappropriate; (5) and the agency’s for the District of Maryland accepted 770/488–7040, FAX 770/488–7044. proposal to debar him is Mr. Copanos’ plea of guilty and entered Dated: February 6, 1996. unconstitutional. judgment against him for these felonies. Nancy C. Hirsch, The Deputy Commissioner for The bases for these convictions were as Acting Director, Management Analysis and Operations has considered Mr. Copanos’ follows. Services Office, Centers for Disease Control arguments and concludes that they are Mr. Copanos distributed a drug that and Prevention. unpersuasive and fail to raise a genuine was misbranded because its labeling [FR Doc. 96–5804 Filed 3–8–96; 8:45 am] and substantial issue of fact requiring a failed to bear adequate directions for use BILLING CODE 4163±18±M hearing. Moreover, the legal arguments and because it failed to warn of the that Mr. Copanos offers do not create the presence of phenylalanine, a component bases for a hearing (see 21 CFR of aspartame. In fact, adequate testing Food and Drug Administration 12.24(b)(1)). Mr. Copanos’ arguments are had not been conducted to determine discussed below. [Docket No. 94N±0033] the effect of aspartame on the stability, potency, and effectiveness of this drug. II. Mr. Copanos’ Arguments in Support John D. Copanos; Denial of Hearing; This drug was also misbranded because of a Hearing Final Debarment Order it failed to reveal the presence and A. Notice AGENCY: Food and Drug Administration, amount of phenylalanine. HHS. In addition, Mr. Copanos pled guilty Mr. Copanos objects to being notified ACTION: Notice. to causing the adulteration of a drug of his proposed debarment through with intent to mislead by failing to publication in the Federal Register. It is SUMMARY: The Food and Drug comply with current good the policy of the agency to send a notice Administration (FDA) denies John D. manufacturing practice. of proposed debarment by certified Copanos’ request for a hearing and In a notice published in the Federal mail. If certified mail delivery is issues a final order under section 306(a) Register of November 9, 1994 (59 FR unsuccessful, the agency attempts to of the Federal Food, Drug, and Cosmetic 55846), FDA offered Mr. Copanos an deliver the notice to the individual Act (the act) (21 U.S.C. 335a(a)) opportunity for a hearing on the personally. If this attempt fails also, 9712 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices notice is given through publication in factual circumstances underlying his a ‘‘taking’’ of property under the Fifth the Federal Register. FDA attempted to plea fail to raise a genuine and Amendment. Mr. Copanos further states serve Mr. Copanos by certified mail but substantial issue of fact justifying a that he has sold his company, including was unable to do so. In September 1994, hearing. all of its approved applications, and that FDA’s Baltimore District Office learned to debar him now ‘‘1would be a C. Ex Post Facto Argument that Mr. Copanos was out of the malicious act’’ on the part of the agency. country. Agents from FDA’s Baltimore Mr. Copanos argues that the ex post Mr. Copanos also argues that he should District Office visited Mr. Copanos’ facto clause of the U.S. Constitution not be debarred because his guilty plea home weekly to determine if he had prohibits application of section was made at an emotional and stressful returned. FDA’s Office of Criminal 306(a)(2) of the act to him because this time. Investigation arranged with U.S. section was not in effect at the time of None of these arguments raise a Customs to be notified if Mr. Copanos Mr. Copanos’ criminal conduct. The genuine and substantial issue of fact returned to the country. When Mr. Generic Drug Enforcement Act (GDEA) requiring resolution at a hearing. Mr. Copanos did not return to the country, of 1992, including section 306(a)(2), was Copanos has not established that his the debarment notice was published in enacted on May 13, 1992, and Mr. debarment affects any property interest the Federal Register on November 9, Copanos was convicted on February 16, protected by the Fifth Amendment. The 1994. 1990. expectation of employment is not Mr. Copanos requested a hearing on An ex post facto law is one that recognized as a protected property his proposed debarment and made reaches back to punish acts that interest under the Fifth Amendment. arguments in support of that request. occurred before enactment of the law or Hoopa Valley Tribe v. Christie, 812 F.2d Thus, it is clear that Mr. Copanos that adds a new punishment to one that 1097, 1102 (9th Cir. 1986); Chang v. received actual notice of the agency’s was in effect when the crime was United States, 859 F.2d 893, 896–97 proposed action and has not been committed. (Ex Parte Garland, 4 Wall. (Fed. Cir. 1988). Loss of potential profit deprived of any procedural rights by 333, 377, 18 L. Ed. 366 (1866); Collins is not a sufficient basis for a ‘‘takings’’ virtue of publication of the debarment v. Youngblood, 497 U.S. 37 (1990).) claim. Andrus v. Allard, 444 U.S. 51, 66 notice in the Federal Register. Mr. Copanos’ claim that application of (1979). To have a protected property the mandatory debarment provisions of interest, one must have a ‘‘legitimate B. Facts Underlying the Plea the act is prohibited by the ex post facto claim of entitlement’’ to that interest. Mr. Copanos makes the following clause is unpersuasive, because the Erikson v. United States, 67 F.3d 858 statements relating to the facts intent of debarment is remedial, not (9th Cir. 1995). One who voluntarily underlying his plea. He states that he punitive. Congress created the GDEA in enters a pervasively regulated industry, held a management position and did not response to findings of fraud and such as the pharmaceutical industry, personally misbrand or manufacture corruption in the generic drug industry. and then violates its regulations, cannot adulterated drugs, that none of the drugs Both the language of the GDEA and its successfully claim that he has a or products involved were put into legislative history reveal that the protected property interest when he is commerce, and that the first count of the purpose of the debarment provisions set no longer entitled to the benefits of that plea related to a facility that was not forth in the GDEA is ‘‘to restore and industry. Id. under his full control at the time. Mr. ensure the integrity of the abbreviated Mr. Copanos does not dispute that he Copanos also states that the agency’s new drug application (ANDA) approval was convicted as alleged by FDA. Under proposal sets forth areas of indictment process and to protect the public section 306(l)(1)(B) of the act a information and factual statements of health.’’ (See section 1, Pub. L. 102–282, conviction includes a guilty plea. The allegations rather than actual proof. GDEA of 1992.) facts underlying Mr. Copanos’ Mr. Copanos is correct that the In a suit challenging a debarment conviction are not at issue. Moreover, agency’s proposal contained some order issued by FDA (58 FR 69368, the act does not permit consideration of inaccuracies. Although Mr. Copanos December 30, 1993), the factors such as emotional stress; rather, pled guilty to counts four and six of the constitutionality of the debarment the act is clear that an individual shall indictment against him, he did not provision was upheld against a similar be debarred if convicted of a felony plead guilty to all the particulars listed challenge under the ex post facto clause. under Federal law for conduct relating in the indictment. In its debarment The reviewing court affirmed the to the regulation of any drug product proposal, the agency mistakenly referred remedial character of debarment: (see section 306(a)(2)(B) of the act). Mr. to parts of the indictment to which Mr. Without question, the GDEA serves Copanos has been convicted of such a Copanos did not plead. The agency very compelling governmental interests unrelated felony. Accordingly, the Deputy to punishment. The punitive effects of the much regrets this error. However, this Commissioner for Operations denies Mr. misplaced reliance does not raise a GDEA are merely incidental to its overriding purpose to safeguard the integrity of the Copanos’ request for a hearing. genuine and substantial issue of fact generic drug industry while protecting public III. Findings and Order requiring a hearing. health. The act requires FDA to mandatorily Bae v. Shalala, 44 F.3d 489, 493 (7th Therefore, the Deputy Commissioner debar an individual who has been Cir. 1995). Because the intent of the for Operations, under section 306(a) of convicted of certain Federal felonies. GDEA is remedial rather than punitive, the act and under authority delegated to The only relevant factual issue is Mr. Copanos’ argument that the GDEA him (21 CFR 5.20), finds that John D. whether Mr. Copanos was, in fact, violates the ex post facto clause must Copanos has been convicted of felonies convicted. Mr. Copanos does not fail. See id. at 496–97. under Federal law for conduct relating dispute that he pled guilty to two to the regulation of a drug product (21 Federal felony counts for actions that D. Miscellaneous Arguments U.S.C. 335a(a)(2)(B)). relate to the regulation of a drug Mr. Copanos argues that his As a result of the foregoing findings, product. Section 306(l) of the act debarment would be ‘‘an John D. Copanos is permanently includes in its definition of a unconstitutional taking of the right to debarred from providing services in any conviction, a guilty plea. Accordingly, earn a living in the United States.’’ It capacity to a person with an approved Mr. Copanos’ statements regarding the appears that Mr. Copanos is referring to or pending drug product application Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices 9713 under section 505, 507, 512, or 802 of Place: Parklawn Building, Room 9C–26, 552b(c)(4) and 552b(c)(6), Title 5, U.S.C. the act (21 U.S.C. 355, 357, 360b, or 5600 Fishers Lane, Rockville, MD 20857. Applications and/or proposals and the 382), or under section 351 of the Public Contact Person: Jean G. Noronha, Parklawn discussions could reveal confidential trade Health Service Act (42 U.S.C. 262), Building, Room 9C–26, 5600 Fishers Lane, secrets or commercial property such as Rockville, MD 20857, Telephone: 301, 443– patentable material and personal information effective (insert date of publication in 6470. concerning individuals associated with the the Federal Register), (21 U.S.C. This notice is being published less than applications and/or proposals, the disclosure 335a(c)(1)(B) and (c)(2)(A)(ii)). Any fifteen days prior to the above meeting due of which would constitute a clearly person with an approved or pending to the urgent need to meet timing limitations unwarranted invasion of personal privacy. drug product application who imposed by the review and funding cycle. This notice is being published less than knowingly uses the services of Mr. Committee Name: National Institute of fifteen days prior to the meeting due to the Copanos, in any capacity, during his Mental Health Special Emphasis Panel. urgent need to meet timing limitations period of debarment, will be subject to Date: March 26, 1996. imposed by the review and funding cycle. a civil money penalty (section 307(a)(6) Time: 3 p.m. (Catalog of Federal Domestic Assistance of the act (21 U.S.C. 335b(a)(6))). If Mr. Place: Parklawn Building, Room 9C–26, Program Numbers 93.242, 93.281, 93.282). 5600 Fishers Lane, Rockville, MD 20857. Copanos, during his period of Dated: March 5, 1996. Contact Person: Jean G. Noronha, Parklawn Susan K. Feldman, debarment, provides services in any Building, Room 9C–26, 5600 Fishers Lane, capacity to a person with an approved Rockville, MD 20857, Telephone: 301, 443– Committee Management Officer, NIH. or pending drug product application, he 6470. FR Doc. 96–5668 Filed 3–8–96; 8:45 am] will be subject to a civil penalty (section Committee Name: National Institute of BILLING CODE 4140±01±M 307(a)(7) of the act). In addition, FDA Mental Health Special Emphasis Panel. will not accept or review any ANDA or Date: March 27, 1996. abbreviated antibiotic drug application Time: 3 p.m. Division of Research Grants; Notice of submitted by or with Mr. Copanos’ Place: Parklawn Building, Room 9C–26, Closed Meetings 5600 Fishers Lane, Rockville, MD 20857. assistance during his period of Pursuant to Section 10(d) of the debarment. Contact Person: Jean G. Noronha, Parklawn Building, Room 9C–26, 5600 Fishers Lane, Federal Advisory Committee Act, as Mr. Copanos may file an application Rockville, MD 20857, Telephone: 301, 443– amended (5 U.S.C. Appendix 2), notice to attempt to terminate his debarment 6470. is hereby given of the following Division pursuant to section 306(d)(4)(A) of the The meetings will be closed in accordance of Research Grants Special Emphasis act. Any such application would be with the provisions set forth in secs. Panel (SEP) meetings: 552b(c)(4) and 552b(c)(6), Title 5, U.S.C. reviewed under the criteria and Purpose/Agenda: To review individual Applications and/or proposals and the processes set forth in section grant applications. discussions could reveal confidential trade 306(d)(4)(C) and (d)(4)(D) of the act. Name of SEP: Behavioral and secrets or commercial property such as Such an application should be Neurosciences. patentable material and personal information Date: March 19, 1996. identified with Docket No. 94N–0033 concerning individuals associated with the Time: 12:00 p.m. and sent to the Dockets Management applications and/or proposals, the disclosure Place: Ramada Inn, Rockville, Maryland. Branch (address above). All such of which would constitute a clearly Contact Person: Dr. Joseph Kimm, submissions are to be filed in four unwarranted invasion of personal privacy. Scientific Review Administrator, 6701 copies. The public availability of (Catalog of Federal Domestic Assistance Rockledge Drive, Room 5178, Bethesda, information in these submissions is Program Numbers 93.242, 93.281, 93.282) Maryland 20892, (301) 435–1249. governed by 21 CFR 10.20(j). Publicly Dated: March 5, 1996. Name of SEP: Microbiological and available submissions may be seen in Susan K. Feldman, Immunological Sciences. the Dockets Management Branch Committee Management Officer, NIH. Date: March 25, 1996. between 9 a.m. and 4 p.m., Monday Time: 10:00 a.m. [FR Doc. 96–5667 Filed 3–8–96; 8:45 am] through Friday. Place: NIH, Rockledge 2, Room 4184, BILLING CODE 4140±01±M Telephone Conference. Dated: February 22, 1996. Contact Person: Dr. Martin Slater, Michael A. Friedman, Scientific Review Administrator, 6701 Deputy Commissioner for Operations. National Institute of Mental Health; Rockledge Drive, Room 4184, Bethesda, [FR Doc. 96–5687 Filed 3–8–96; 8:45 am] Notice of Closed Meeting Maryland 20892, (301) 435–1149. BILLING CODE 4160±01±F Pursuant to Section 10(d) of the Name of SEP: Microbiological and Immunological Sciences. Federal Advisory Committee Act, as Date: March 26, 1996. amended (5 U.S.C. Appendix 2), notice National Institutes of Health Time: 1:30 p.m. is hereby given of the following meeting Place: NIH, Rockledge 2, Room 4182, National Institute of Mental Health; of the National Institute of Mental Telephone Conference. Notice of Closed Meetings Health Special Emphasis Panel: Contact Person: Dr. William Branche, Jr., Scientific Review Administrator, 6701 Agenda/Purpose: To review and evaluate Rockledge Drive, Room 4182, Bethesda, grant applications. Pursuant to Section 10(d) of the Maryland 20892, (301) 435–1148. Committee Name: National Institute of Federal Advisory Committee, as Name of SEP: Biological and Physiological amended (5 U.S.C. Appendix 2), notice Mental Health Special Emphasis Panel. Date: March 14, 1996. Sciences. is hereby given of the following Time: 10 a.m. Date: March 26, 1996. meetings of the National Institute of Place: Days Inn, 2000 Jefferson Davis Hwy., Time: 8:30 a.m. Mental Health Special Emphasis Panel: Crystal City, VA 22202. Place: NIH, Rockledge 2, Conf. Room 9116. Agenda/Purpose: To review and evaluate Contact Person: Angela L. Redlingshafer, Contact Person: Dr. Sooja Kim, Scientific grant applications. Parklawn, Room 9C–18, 5600 Fishers Lane, Review Administrator, 6701 Rockledge Drive, Committee Name: National Institute of Rockville, MD 20857, Telephone: 301, 443– Room 4120, Bethesda, Maryland 20892, (301) Mental Health Special Emphasis Panel. 1367. 435–1780. Date: March 19, 1996. The meeting will be closed in accordance Name of SEP: Microbiological and Time: 1 p.m. with the provisions set forth in secs. Immunological Sciences. 9714 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices

Date: March 27, 1996. Rockledge Drive, Room 4106, Bethesda, DEPARTMENT OF HOUSING AND Time: 1:30 p.m. Maryland 20892. (301) 435–1786. URBAN DEVELOPMENT Place: NIH, Rockledge 2, Room 4182, Name of SEP: Clinical Sciences. [Docket No. FR±4004±N±03] Telephone Conference. Date: April 12, 1996. Contact Person: Dr. William Branche, Jr., Time: 8:30 a.m. Scientific Review Administrator, 6701 Office of the Assistant Secretary for Place: Key Bridge Marriott, Rossyln, VA. Rockledge Drive, Room 4182, Bethesda, Community Planning and Contact Person: Dr. Nancy Shinowara, Maryland 20892, (301) 435–1148. Development; Notice of Funding Scientific Review Administrator, 6701 Name of SEP: Microbiological and Availability for: The HUD-Administered Rockledge Drive, Room 5216, Bethesda, Immunological Sciences. Small Cities Community Development Maryland 20892. (301) 435–1173. Date: March 27, 1996. Block Grant (CDBG) ProgramÐFiscal Time: 11:00 a.m. Name of SEP: Biological and Physiological Year 1996; and the Section 108 Loan Place: NIH, Rockledge 2, Room 4186, Sciences. Guarantee Program for Small Telephone Conference. Date: April 23, 1996. Communities in New York State; Contact Person: Dr. Gerald Liddel, Time: 8:30 a.m. Extension of Application Deadline Scientific Review Administrator, 6701 Place: Holiday Inn, Silver Spring, MD. Rockledge Drive, Room 4186, Bethesda, Contact Person: Dr. Peggy McCardle, AGENCY: Office of the Assistant Maryland 20892, (301) 435–1150. Scientific Review Administrator, 6701 Secretary for Community Planning and Name of SEP: Behavioral and Rockledge Drive, Room 5198, Bethesda, Development, HUD. Neurosciences. Maryland 20892. (301) 435–1258. ACTION: Notice of Funding Availability Date: April 1, 1996. Purpose/Agenda: To review Small (NOFA) for Fiscal Year (FY) 1996; Time: 10:00 a.m. Business Innovation Research. Extension of application deadline. Place: Embassy Suites, Chevy Chase, MD. Name of SEP: Behavioral and Contact Person: Dr. Joseph Kimm, Neurosciences. SUMMARY: This notice extends the Scientific Review Administrator, 6701 Date: March 28, 1996. application deadline for the FY 1996 Rockledge Drive, Room 5178, Bethesda, NOFA for the HUD-Administered Small Maryland 20892, (301) 435–1249. Time: 8:30 a.m. Place: Ramda Inn, Rockville, Maryland. Cities Community Development Block Name of SEP: Microbiological and Contact Person: Dr. Luigi Giacometti, Grant (CDBG) Program for Small Immunological Sciences. Date: April 2, 1996. Scientific Review Administrator, 6701 Communities in New York State, Time: 10:00 a.m. Rockledge Drive, Room 5179, Bethesda, published in the Federal Register on Place: NIH, Rockledge 2, Room 4186, Maryland 20892. (301) 435–1246. December 28, 1995 (60 FR 67260). This Telephone Conference. Name of SEP: Biological and Physiological notice establishes the application Contact Person: Dr. Gerald Liddel, Sciences. deadline to be April 3, 1996. Scientific Review Administrator, 6701 Date: April 8, 1996. FOR FURTHER INFORMATION CONTACT: Rockledge Drive, Room 4186, Bethesda, Time: 8:30 a.m. Joseph A. D’Agosta, Director, Office of Maryland 20892, (301) 435–1150. Place: Double Tree Hotel, Rockville, MD. Community Planning and Development, Name of SEP: Microbiological and Contact Person: Dr. Harish Chopra, Department of Housing and Urban Immunological Sciences. Scientific Review Administrator, 6701 Development, 26 Federal Plaza, New Date: April 2, 1996. Rockledge Drive, Room 5112, Bethesda, York, NY 10278–0068; telephone (212) Time: 2:30 p.m. Maryland 20892. (301) 435–1169. Place: NIH, Rockledge 2, Room 4178, 264–0771. (This is not a toll-free Telephone Conference. Name of SEP: Clinical Sciences. number.) Hearing- or speech-impaired Contact Person: Dr. Jean Hickman, Date: April 9, 1996. persons may call (212) 264–0927 (TDD). Scientific Review Administrator, 6701 Time: 8:00 a.m. SUPPLEMENTARY INFORMATION: The Rockledge Drive, Room 4178, Bethesda, Place: NIH, Rockledge 2, Room 4218, Notice of Funding Availability (NOFA) Maryland 20892. (301) 435–1146. Telephone Conference. for the HUD-Administered Small Cities Name of SEP: Microbiological and Contact Person: Dr. Shirley Hilden, Community Development Block Grant Immunological Sciences. Scientific Review Administrator, 6701 (CDBG) Program—Fiscal Year (FY) Date: April 9, 1996. Rockledge Drive, Room 4218, Bethesda, 1996, and the Section 108 Loan Time: 10:00 a.m. Maryland 20892. (301) 435–1198. Guarantee Program for Small Place: NIH, Rockledge 2, Room 4186, The meetings will be closed in accordance Communities in New York State was Telephone Conference. with the provisions set forth in secs. published in the Federal Register on Contact Person: Dr. Gerald Liddel, 552b(c)(4) and 552b(c)(6), Title 5, U.S.C. December 28, 1995 (60 FR 67260), and Scientific Review Administrator, 6701 Applications and/or proposals and the Rockledge Drive, Room 4186, Bethesda, discussions could reveal confidential trade amended on February 28, 1996 (61 FR Maryland 20892. (301) 435–1150. secrets or commercial property such as 7533). Name of SEP: Biological and Physiological patentable material and personal information The FY 1996 NOFA established Sciences. concerning individuals associated with the March 13, 1996 as the application Date: April 10, 1996. applications and/or proposals, the disclosure deadline, stating that the application Time: 2:00 p.m. of which would constitute a clearly kits may be obtained from HUD’s New Place: NIH, Rockledge 2, Room 5196, unwarranted invasion of personal privacy. York or Buffalo offices. However, due to Telephone Conference. a number of factors, HUD has been Contact Person: Ms. Carol Campbell, (Catalog of Federal Domestic Assistance program Nos. 93.306, 93.333, 93.337, 93.393– unable to provide the application kits as Scientific Review Administrator, 6701 early as it planned. Therefore, this Rockledge Drive, Room 5196, Bethesda, 93,396, 93.837–93.844, 93.846–93.878, Maryland 20892. (301) 435–1257. 93.892, 93,893, National Institutes of Health, notice establishes that the application deadline is extended from March 13, Name of SEP: Clinical Sciences. HHS) Date: April 12, 1996. Dated: March 5, 1996. 1996 to April 3, 1996. All other instructions in the FY 1996 NOFA with Time: 1:30 p.m. Susan K. Feldman, Place: NIH, Rockledge 2, Room 4106, regard to submitting applications Committee Management Officer, NIH. Telephone Conference. remain in effect. Contact Person: Ms. Josephine Pelham, [FR Doc. 96–5666 Filed 3–8–96; 8:45 am] Accordingly, FR Doc. 95–31383, the Scientific Review Administrator, 6701 BILLING CODE 4140±01±M NOFA for the HUD-Administered Small Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices 9715

Cities Community Development Block to the HUD office at the address listed material to update or supplement the Grant (CDBG) Program—Fiscal Year above in Section A. prior application. 1996, and the Section 108 Loan The above-stated application deadline All applicants are free to submit an Guarantee Program for Small is firm as to date and hour. In the entirely new application in place of a Communities in New York State, interest of fairness to all competing previous application should they so published in the Federal Register on applicants, the Department will treat as desire. December 28, 1995 (60 FR 67260), is ineligible for consideration any * * * * * amended as follows: application that is not received on, or 4. On page 67279, in column 1, in 1. On page 67260, in column 2, the postmarked by, April 3, 1996. section III., under the heading two paragraphs under the heading Applicants should take this practice ‘‘Technical Assistance’’, the second DATES are amended to read as follows: into account and make early submission paragraph is amended to read as DATES: Applications are due by April 3, of their materials to avoid any risk of follows: 1996. Application kits may be obtained loss of eligibility brought about by III. Technical Assistance from and must be submitted to either unanticipated delays or other delivery- HUD’s New York or Buffalo Office. related problems. * * * * * Applications, if mailed, must be * * * * * In order to be considered for funding, postmarked no later than midnight on 3. On page 67278, in column 2, complete applications (an original and April 3, 1996. If an application is hand- section II.C.2., under the heading two photocopies of the entire delivered to the New York or the Buffalo ‘‘Streamlined Application Requirements application) must be physically received Office, the application must be for Certain Applicants’’, is amended to by the appropriate HUD office on April delivered to the appropriate office by no read as follows: 3, 1996 by 4:00 p.m. or, if mailed, later than 4:00 p.m. on the deadline postmarked no later than midnight, date. Application kits will be made II. Application and Funding Award April 3, 1996. Applications must be available by a date that affords Process delivered or mailed to the appropriate applicants no fewer than 30 days to * * * * * HUD office at the address indicated in respond to this NOFA. For further Section II. C. The Application information on obtaining and Dated: March 6, 1996. submitting applications, please see * * * * * Andrew Cuomo, Section II of this NOFA. 2. Streamlined Application Assistant Secretary for Community Planning The above-stated application deadline Requirements for Certain Applicants is firm as to date and hour. In the and Development. An eligible applicant that submitted interest of fairness to all competing [FR Doc. 96–5731 Filed 3–6–96; 2:15 pm] an application under the Fiscal Year applicants, the Department will treat as BILLING CODE 4210±29±P 1995 NOFA, but whose application was ineligible for consideration any not selected for funding, may notify application that is not received by 4:00 HUD in writing by the application p.m. on, or postmarked by, April 3, DEPARTMENT OF THE INTERIOR deadline date, April 3, 1996, that it 1996. Applicants should take this wishes its FY 1995 application to be procedure into account and make early Fish and Wildlife Service reactivated for consideration under this submission of their materials to avoid NOFA. Applications that are reactivated Endangered and Threatened Species any risk of loss of eligibility brought may be updated, amended, or Permit Application about by unanticipated delays or other supplemented by the applicant, delivery-related problems. AGENCY: Fish and Wildlife Service, 2. On page 67278, in column 1, provided that such amendment or supplementation is received no later Interior. section II.B., under the heading ACTION: Notice of receipt of application. ‘‘Submitting Applications’’, is amended than the due date for applications under to read as follows: this NOFA. If there is no significant The following applicant has applied change in the application involving new for a permit to conduct certain activities II. Application and Funding Award activities or alteration of proposed with endangered species. This notice is Process activities that will significantly change provided pursuant to section 10(c) of * * * * * the scope, location, or objectives of the the Endangered Species Act of 1973, as proposed activities or beneficiaries, amended (16 U.S.C. 1531, et seq.). B. Submitting Applications there will be no further citizen A final application must be submitted participation requirement to keep the PRT–811314 to HUD no later than April 3, 1996. A application active for a succeeding Applicant: Don R. Helms, Helms & final application includes an original round or competition. Associates, Bellevue, Iowa. and two photocopies. Final applications Applicants with activities approved The applicant requests a permit to may be mailed, and if they are received for funding under the Fiscal Year 1995 take (capture, handle and release, and after the deadline, must be postmarked NOFA are eligible for additional translocate specimens) Higgins’ eye no later than midnight, April 3, 1996. funding for those activities under this pearly mussel (Lampsilis higginsi) Applicants in New York, in the counties NOFA. Applicants seeking additional throughout the Upper Mississippi River of Sullivan, Ulster, Putnam, and in non- funding for activities selected for basin above river mile 360. Proposed participating jurisdictions in the urban funding under the Fiscal Year 1995 activities are expected to result in counties of Dutchess, Orange, Rockland, NOFA may notify the Department in population status information that will Westchester, Nassau, and Suffolk writing by April 3, 1996 that they wish be useful in recovery of the species and should submit applications to the New to seek additional funding for those in avoiding impacts to species when York Office. All other nonentitled activities. Such applicants may completing projects that impact the communities in New York State should incorporate by reference the application riverine habitat. submit their applications to the Buffalo materials in the applicant’s Fiscal Year Correction is made to the following Office. Applications must be submitted 1995 application, and may provide announcement previously published in 9716 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices the Federal Register, Vol. 61, No. 13, (Eretmochelys imbricata), and Kemp’s Endangered/Threatened Species Permit page 1399, dated January 19, 1996. ridley sea turtle, Lepidochelys kempii), Coordinator, U.S. Fish and Wildlife and piping plovers (Charadrius Service, 1875 Century Boulevard, PRT–809630 melodus) resulting from public beach- Suite 200, Atlanta, Georgia 30345, Applicant: Dr. Allen Kurta, Eastern driving activity and lighting controlled (telephone 404/679–7110, fax 404/ Michigan University, Ypsilanti, and operated by Volusia County, to the 679–7081) Michigan. extent that minimization and mitigation Field Supervisor, U.S. Fish and Wildlife The applicant requests a permit to measures proposed in the habitat Service, 6620 Southpoint Drive South, take (capture and release, handle, radio- conservation plan (HCP) are not Suite 310, Jacksonville, Florida tag) Indiana Bats (Myotis sodalis) in successful. The incidental take permit 32216–0912, (telephone 904/232– Michigan and Indiana. would cover the Defined Area of the 2580, fax 904/232–2404). Written data or comments should be HCP, bounded on the north by the FOR FURTHER INFORMATION CONTACT: submitted to the Regional Director, U.S. Volusia-Flagler County line, on the Dawn Zattau at the Jacksonville, Fish and Wildlife Service, Division of south by the Volusia-Brevard County Florida, Field Office or Rick G. Gooch Endangered Species, 1 Federal Drive, line (49.08 miles of coastline), on the at the Atlanta, Georgia, Regional Office. Fort Snelling, Minnesota 55111–4056, east by the mean low water line, and on SUPPLEMENTARY INFORMATION: The and must be received within 30 days of the west by the line of permanent the date of this publication. beaches in Volusia County are well vegetation, or the seawall, whichever is known throughout the United States as Documents and other information closer to the ocean. submitted with this application are a recreational attraction and are a major available for review by any party who The Service also announces the component of the local Volusia County submits a written request for a copy of availability of an environmental economy. Driving on the beach has been such documents to the following office assessment (EA) and HCP for the a tradition since before the turn of the within 30 days of the date of publication incidental take application. Copies of century. Driving on the beach has the of this notice: U.S. Fish and Wildlife the EA or HCP may be obtained by potential to harm federally listed Service, Division of Endangered making a request to the Jacksonville, wildlife species that also use the beach. Species, 1 Federal Drive, Fort Snelling, Florida, Field Office address below. Four sea turtle species have been Minnesota 55111–4056. Telephone: Requests for the documents must be documented as nesting in Volusia (612/725–3536 x250); FAX: (612/725– submitted in writing to be processed. County. The nesting and hatching 3526). This notice also advises the public that season extends from about April 15 the Service has made a preliminary through October 31. However, some Dated February 26, 1996. determination that issuing the nests may be laid prior to April 15, and John A. Blankenship, incidental take permit is not a major some hatchlings may emerge from nests Assistant Regional Director, Ecological Federal action significantly affecting the after October 31. Between 1988 and Services, Region 3, Fish and Wildlife Service, quality of the human environment 1994, the number of sea turtles nests Fort Snelling, Minnesota. within the meaning of Section 102 (2)(C) within the Defined Area ranged from [FR Doc. 96–5592 Filed 3–8–96; 8:45 am] of the National Environmental Policy 1,360 nests to 2,247 nests; between 74 BILLING CODE 4310±55±M Act of 1969, as amended. The Finding to 87 percent of the nests occurred at of No Significant Impact (FONSI) is Canaveral National Seashore (11.78 based on information contained in the miles of coastline) and North Peninsula Availability of an Environmental EA and HCP. The final determination State Recreation Area (2.70 miles of Assessment and Receipt of an will be made no sooner than 30 days coastline), areas where no public Application for an Incidental Take from the date of this notice. This notice driving is allowed. The number of nests Permit for Five Species of Sea Turtles is provided pursuant to Section 10 of reported in the area under the (Loggerhead Sea Turtle, Caretta the Act and National Environmental jurisdiction of Volusia County (34.60 Caretta, Green Sea Turtle, Chelonia Policy Act Regulations (40 CFR 1506.6). miles of coastline) ranged from 204 to Mydas, Leatherback Sea Turtle, 495 between 1992 and 1994. Loggerhead DATES: Written comments on the permit Dermochelys Coriacea, Hawksbill Sea sea turtles averaged about 97 percent of application, EA and HCP should be Turtle Eretmochelys Imbricata, and this nesting activity, while green and received on or before April 10, 1996. Kemp's Ridley Sea Turtle, leatherback sea turtles averaged 2.7 and Lepidochelys Kempii), and Piping ADDRESSES: Persons wishing to review 0.1 percent, respectively. Only one Plovers (Charadrius Melodus), in the application, HCP, and EA may hawksbill sea turtle nest has ever been Volusia County, Florida obtain a copy by writing the Service’s documented in the Defined Area. AGENCY: Fish and Wildlife Service, Jacksonville, Florida, Field Office. Kemp’s ridley sea turtles are not known Interior. Documents will also be available for to nest in the Defined Area, but ACTION: Notice. public inspection by appointment strandings have occurred there. during normal business hours at the The piping plover is a small, beach- SUMMARY: The county of Volusia Service’s Southeast Regional Office, dwelling bird that feeds primarily (Applicant) is seeking an incidental take Atlanta, Georgia, or the Jacksonville, during daylight hours on sandy shores permit from the Fish and Wildlife Florida, Field Office. In addition, copies searching for prey at or near the sand/ Service (Service), pursuant to Section 10 of the application, the HCP, and EA are water interface or in the seaweed or (a)(1)(B) of the Endangered Species Act available for public inspection at all other flotsam that has washed ashore. of 1973, as amended (Act). The Volusia County Public Libraries, during Piping plovers are migratory and are incidental take permit would authorize their normal operating hours. Written observed in Florida during the non- the take of five species of sea turtles data or comments concerning the nesting season, typically from (loggerhead sea turtle, Caretta caretta, application, EA, or HCP should be September through March. Piping green sea turtle, Chelonia mydas, submitted to the Regional Office. Please plovers along the Atlantic coast appear leatherback sea turtle, Dermochelys reference the permit under PRT–811813 to be observed most often at the coriacea, hawksbill sea turtle in such comments. accreting ends of barrier island, along Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices 9717 sandy peninsulas, and near coastal enforcement provisions of Section 9 of Based on the analysis conducted by inlets. During a 1991 census, in which the Act. One alternative would continue the Service, it has been determined that: 32 miles of Volusia County beachfront the requirements of a Court Order 1. Issuance of the incidental take were surveyed, a total of four piping issued in 1995 nesting season for sea permit will not appreciably reduce the plovers were observed, all in the turtles. It may result in take of sea likelihood of survival and recovery of immediate vicinity of Ponce Inlet. turtles and piping plovers and, as with the affected species in the wild or result On Volusia County beaches, sea the no action alternative, continue to in the adverse modification of turtles and other protected species may expose the Applicant to the enforcement designated critical habitat. This decision be affected by artificial lighting, provisions of Section 9 of the Act. A is based upon and considers the vehicular and pedestrian traffic, erosion third alternative examines removing all cumulative impacts of past, present and control structures, beach maintenance public vehicles from the county future issuance of incidental take practices, stormwater runoff, and beaches; it would have an immediate permits within the historic and current recreational equipment. Volusia County adverse impact to segments of the range of each species affected in the is seeking an incidental take permit for tourist economy and to beach revenues. permit action. vehicular traffic and county-owned and In addition, because of lack of adequate 2. Issuance of an incidental take operated artificial lighting on the beach. off-beach parking, a large number of permit would not have significant The presence of vehicles on the beach people would be kept off the beach. The effects on the human environment in has the potential to take sea turtles by proposed action alternative is issuance the project area. hitting or running over nesting females, of the incidental take permit. This 3. The proposed take is incidental to hatchlings, juvenile turtles that have provides for establishment of zones of an otherwise lawful activity. washed up on the beach (as often the beach where public driving would 4. The Applicant has ensured that happens during storms), and turtle not be allowed (an additional 9 miles of adequate funding will be provided to nests. Vehicle traffic and vehicle lights no-driving beach established), and implement the measures proposed in may deter female sea turtles during their coincides with areas of highest use by the submitted HCP. 5. Other than impacts to endangered nesting attempts, and vehicle lights may sea turtles. Transitional Areas would be and threatened species as outlined in also disorient newly hatched sea turtles. established, where public driving would the documentation of this decision, the Tire ruts in the sand may trap, be allowed with the exception of a 30- indirect impacts which may result from misdirect, or otherwise detain foot Conservation Zone, as measured issuance of the incidental take permit hatchlings from reaching the ocean. from the toe of the dunes or seawall, are addressed by other regulations and Equipment allowed on the beach for whichever is closest to the sea. Urban statutes under the jurisdiction of other moving sand may run over sea turtle Areas would be established, where government entities. The validity of the nests, as well as place sand on top of public driving would be allowed, with nests, which could interfere with the Service’s incidental take permit is the exception of a 30-foot Conservation incubation process and hatchlings contingent upon the Applicant’s Zone, the seaward 15 feet of which emergence. compliance with the terms of the permit could be used for parking. There would Artificial lighting can be detrimental and all other laws and regulations under be no nighttime public driving or to sea turtles in several ways. Studies the control of State, local, and other parking allowed on the beach. The HCP have shown that light pollution can Federal governmental entities. also includes monitoring of protected deter female sea turtles from coming Dated: March 5, 1996. onto the beach to nest. Also, females species, increased enforcement of the Sam D. Hamilton, attempting to return to sea after nesting county lighting ordinance, and can be disoriented by beach lighting and increased educational activities for Acting Regional Director. have difficulty making it back to the protected species. It would also provide [FR Doc. 96–5690 Filed 3–8–96; 8:45 am] ocean. In some cases, nesting females for an economic development plan for BILLING CODE 4310±55±P have ended up on coastal highways and off-beach parking, diversification of been struck by vehicles. Artificial beach beach uses and experiences, and lighting is even more detrimental to sea increased cooperation between Availability of an Environmental turtle hatchlings, which emerge from volunteer turtle patrols, State and Assessment and Receipt of an nests at night. Under natural conditions, Federal agencies, and the county. The Application for an Incidental Take hatchlings move toward the brightest, HCP provides a funding mechanism for Permit for Parkside Homes Planned most open horizon, which is over the these minimization and mitigation Unit Development, South San ocean. However, when bright light measures. Francisco, San Mateo County, sources are present on the beach, they As stated above, the Service has made California become the brightest spot on the a preliminary determination that the AGENCY: Fish and Wildlife Service, horizon and attract hatchlings in the proposed action, e.g., issuance of the Interior. wrong direction, making them more incidental take permit, is not a major ACTION: Notice of Availability. vulnerable to predators, desiccation, Federal action significantly affecting the exhaustion, and automobiles on quality of the human environment SUMMARY: This notice advises the public highways and in parking lots. within the meaning of Section 102(2)(C) that Parkside Homes Planned Unit The EA considers the consequences of of the National Environmental Policy Development has applied to the U.S. four alternatives. The no action Act of 1969, as amended. This Fish and Wildlife Service (Service) for alternative would continue to preliminary information may be an incidental take permit pursuant to implement a beach management adjusted due to public comment section 10(a)(1)(B) of the Endangered program as required by existing Volusia received in response to this notice and Species Act of 1973, as amended (Act). County regulations and ordinances and is based on information contained in the The application has been assigned may result in take of sea turtles and EA and HCP. An appropriate excerpt permit number 811259. The proposed piping plovers. Without an exemption from the FONSI reflecting the Service’s permit would authorize the incidental provided by Section 10 of the Act, the finding on the application is provided take of the endangered mission blue Applicant will risk exposure to the below: butterfly (Icaricia icaroides 9718 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices missionensis) and San Bruno elfin otherwise lawful activities. Regulations greater than under the Preferred butterfly (Callophrys mossii bayensis) governing permits for threatened species Alternative 1; and (2) and conservation and/or their habitat during the are promulgated in 50 CFR 17.32; areas established on site would be construction of a housing development. regulations governing permits for relatively small and fragmented. The permit would become effective for endangered species are promulgated in This notice is provided pursuant to the Callippe silverspot butterfly 50 CFR 17.22. section 10(a) of the Act and National (Speyeria callippe callippe), currently Parkside Homes proposes to construct Environmental Policy Act of 1969 proposed for endangered status, if it is 156 units of moderate-cost housing on a (NEPA) regulations (40 CFR 1506.6). listed under the Act. The permit would 25.4-acre parcel in South San Francisco, The Service will evaluate the be in effect for 10 years. San Mateo County, California. The site application, associated documents, and The Service also announces the is located on the north side of Sign Hill comments submitted thereon to availability of an environmental and faces the south side of San Bruno determine whether the application assessment (EA) for the incidental take Mountain. Parkside Homes seeks meets the requirements of section 10(a) permit application, which includes the coverage for the removal of habitat for of the Act. If it is determined that the proposed Habitat Conservation Plan the mission blue butterfly, San Bruno requirements are met, a permit will be (HCP) fully describing the proposed Elfin butterfly, and Callippe silverspot issued for the incidental take of the project and mitigation, and the butterfly on 19.53 acres of the site. listed species. The final permit decision accompanying Implementing Agreement Though the proposed project would will be made no sooner than 30 days (IA). This notice is provided pursuant to remove suitable habitat for these from the date of this notice. section 10(a) of the Act and National butterfiles, the HCP involves the Dated: March 1, 1996. establishment of a 12.11-acre butterfly Environmental Policy Act regulations Thomas Dwyer, (40 CFR 1506.6). All comments, conservation area onsite to be maintained in perpetuity. The Deputy Regional Director, Region 1, Portland, including names and addresses, Oregon. conservation area would include 5.87 received will become part of the official [FR Doc. 96–5692 Filed 3–8–96; 8:45 am] administrative record and may be made acres of ungraded land and 6.24 acres of BILLING CODE 4310±55±M available to the public. graded land, restored as butterfly DATES: Written comments on the permit habitat. All Sedum spathulifolium and Viola pedunculata, host plants for the application, EA and IA should be Aquatic Nuisance Species Task Force San Bruno elfin butterfly and Callippe received on or before April 10, 1996. Risk Assessment and Management silverspot, respectively, within the ADDRESSES: Comments regarding the Committee grading plan would be transplanted to application or adequacy of the EA and the conservation area. In addition, AGENCY: Department of the Interior, Fish IA should be addressed to Mr. Joel approximately 250 lupine (host plant for Medlin, Field Supervisor, U.S. Fish and and Wildlife Service. the mission blue butterfly) and 100 ACTION: Notice of document availability. Wildlife Service, Sacramento Field Sedum (host plant for the San Bruno Office, 2800 Cottage Way, Room E– elfin butterfly) would be planted in the SUMMARY: This notice announces the 1823, Sacramento, California 95825. conservation area. Other measures are availability for public comment two Please refer to permit number PRT– specified in the HCP to minimize to documents produced by the Risk 811259 when submitting comments. potential for take during construction Assessment and Management Individuals wishing copies of the activities. Committee (Committee), a committee of application, EA or IA for review should The EA considers the environmental the Aquatic Nuisance Species Task immediately contact the above office consequences of three alternatives. The Force. The documents are as follows: (1) (916–979–2725). no project alternative would result in no Final Draft—Generic Nonindigenous FOR FURTHER INFORMATION CONTACT: immediate environmental impacts. Aquatic Organisms Risk Analysis Mr. Michael Horton or Ms. Tiki Baron, However, under this alternative a Review Process; and, (2) Final Draft— U.S. Fish and Wildlife Service, butterfly conservation area would not be Risk Assessment on the black carp Sacramento Field Office, 2800 Cottage established and maintained in (Pisces: Cyprinidae). The Aquatic Way, Room E–1823, Sacramento, perpetuity, and the quality of the Nuisance Species Task Force was California 95825 (916–979–2725). existing habitat may decline over time established under the authority of the SUPPLEMENTARY INFORMATION: as a result of invasive exotic vegetation Nonindigenous Aquatic Nuisance which exists on the site. This alternative Prevention and Control Act of 1990. Availability of Documents was rejected because it would deny the DATES: Comment period ends on May Individuals wishing copies of the landowner the opportunity to develop 10, 1996. documents should immediately contact housing on the property and no ADDRESSES: Written responses and the Service’s Sacramento Field Office at enhancement of the site for listed requests for copies of the documents the above referenced address, or by species would occur. Alternative 1, the should be mailed to: Richard Orr, Risk telephone at (916) 979–2725. proposed action, was selected because: Assessment and Management Documents will also be available for (1) It best satisfies the needs and Committee Chairman, U.S. Dept. of public inspection, by appointment, purpose of the proposed project; (2) it is Agriculture, Animal and Plant Health during normal business hours at the likely to result in a relatively low level Inspection Service—PPD, 4700 River above address. of incidental take; and (3) impacts are minimized and mitigated through the Road, Unit 117, Riverdale, Maryland, Background establishment of a butterfly 20737–1238. Section 9 of the Act prohibits the conservation area. The third alternative FOR FURTHER INFORMATION CONTACT: ‘‘taking’’ of a species listed as involves the development of 25 single Richard Orr, Risk Assessment and threatened or endangered. However, the family homes on one-acre lots over the Management Committee Chairman at Service, under limited circumstances, entire 25.4-acre parcel. This alternative (301) 734–8939. may issue permits to take listed species was not selected because: (1) The level SUPPLEMENTARY INFORMATION: The incidental to, and not the purpose of, of incidental take would likely be Generic Nonindigenous Aquatic Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices 9719

Organisms Risk Analysis Review SUMMARY: In accordance with the Congress passed the Multiple Surface Process is the risk process developed Paperwork Reduction Act of 1995, the Use Act of 1955 (69 Stat. 368, 30 U.S.C. through the Risk Assessment and Bureau of Land Management (BLM) is 601–615), which is also known as Management Committee to help meet announcing its intention to request Public Law 167, the Common Varieties the requirements of the Aquatic approval to collect certain information Act, or the Surface Resources Act. Nuisance Prevention and Control Act of from owners of unpatented mining Under the Act, mining claims located 1990 (P.L. 101–646, 104 Stat. 4761, 16 claims. This information is needed for after the date of the Act (July 23, 1955) U.S.C. 4701 et seq., November 29, 1990). BLM to implement the Multiple Surface must only be used for prospecting, The objective of the Review Process is Use Act of 1955; the Multiple Mineral mining or processing operations and to provide a standardized process for Development Act of 1954; the Act of reasonably incident uses. Mining claims evaluating the risk of introducing April 8, 1948; and the general mining located prior to the date of the Act will nonindigneous organisms into a new laws. be subject to the Act where, after notice environment and, if needed, DATES: Comments on the proposed and hearing, BLM determines the determining the correct risk information collection must be received locator’s surface rights are similarly management steps needed to mitigate by May 10, 1996, to be assured of limited. To defend against a the risk. The Review Process provides a consideration. Government inquiry as to the ownership framework where scientific, technical, ADDRESSES: Comments may be mailed of vegetal or mineral rights to locations and other relevant information can be to: Regulatory Management Team (420), made prior to July 23, 1955, an owner organized into a format that is Bureau of Land Management, 1849 C of an unpatented mining claim must understandable and useful to managers Street NW, Room 401LS, Washington, submit the information required by the and decision makers. The process was D.C. 20240. implementing regulations at 43 CFR developed to function as an open Comments may be sent via Internet to: 3712.2–3, including the date of location process with early and continuous input [email protected]. Please include of the claim, the book and page of from all identified interested parties and ‘‘ATTN: 1004–0110’’ and your name recordation of the notice or certificate of designed to be flexible and dynamic and return address in your Internet location, the section or sections of enough to accommodate a variety of message. public land surveys which embrace the approaches to nonindigneous organisms Comments may be hand-delivered to claim, whether the claimant is a locator risk depending on the available the Bureau of Land Management or purchaser under the location, and the resources, accessibility of the biological Administrative Record, Room 401, 1620 name and address of the claimant and information, and the risk assessment L Street, NW, Washington, DC. of any other person with an interest in methods available at the time of the Comments will be available for public the claim. assessment. The black carp was chosen review at the L Street address during BLM uses the information provided as the test organism for the Review regular business hours (7:45 A.M. to by the mining claimant to determine the Process because it demonstrated: (1) A 4:15 p.m.), Monday through Friday. applicability of the use restrictions of real issue in which the potential for the Multiple Surface Use Act to pre-Act FOR FURTHER INFORMATION CONTACT: positive gain (biological control of claims. If BLM did not collect this Roger A. Haskins, (202) 452–0355. yellow grub and zebra mussel) has to be information, mining claims located balanced with the potential of becoming SUPPLEMENTARY INFORMATION: In prior to the Act could be used for established and causing economic and/ accordance with 5 CFR 1320.8(d), BLM purposes unrelated to mining, which or environmental damage on a new is required to provide 60-day notice in frequently cause adverse environmental environment; (2) a real issue in which the Federal Register concerning a impacts or create health and safety political, economic, and environmental proposed collection of information to hazards on the public lands. See concern were already present; and, (3) a solicit comments on (a) whether the Unauthorized Activities on Hardrock situation in which there still exists time proposed collection of information is Claims, GAO-RCED–90–111. to correctly manage this issue to the necessary for the proper performance of In 1954, Congress passed the Multiple benefit of the American people. This the functions of the agency, including Mineral Development Act (68 Stat. 708, assessment is specific organism whether the information will have 30 U.S.C. 521–531) to eliminate assessment and does not attempt to practical utility; (b) the accuracy of the conflicts between claimants of locatable evaluate the black carp as a pathway. agency’s estimate of the burden of the minerals and permittees and lessees of proposed collection of information, leasable minerals, such as coal, oil and Dated: February 29, 1996. including the validity of the gas. The Act permits development of the Gary Edwards, methodology and assumptions used; (c) same tract of public land under both Assistant Director—Fisheries, Co-Chair, ways to enhance the quality, utility, and systems of mineral disposal, that is, Aquatic Nuisance Species Task Force. clarity of the information to be both mining claims under the general [FR Doc. 96–5398 Filed 3–8–96; 8:45 am] collected; and (d) ways to minimize the mining law and permits and leases BILLING CODE 4310±55±M burden of the collection of information under the Mineral Leasing Act of 1920 on those who are to respond, including can cover the same piece of public through the use of appropriate domain. Bureau of Land Management automated, electronic, mechanical, or To assert a right to Mineral Leasing [WO±320±1990±2±24 1A] other technological collection Act deposits that lie under mining techniques or other forms of information claims located prior to the date of the Notice of Proposed Information technology. BLM will receive and Act (August 13, 1954), a permittee or Collection, OMB Approval Number analyze any comments sent in response lessee may submit to BLM a request for 1004±0110 to this notice and include them with its publication under the implementing AGENCY: Bureau of Land Management, request for approval from the Office of regulations at 43 CFR 3742.3–1. The Interior. Management and Budget under 44 request for publication must include a U.S.C. 3501 et seq. certified copy of the notice of ACTION: Notice and request for To guard against use of mining claims application, offer, permit, or lease; an comments. for purposes unrelated to mining, affidavit stating that the lands involved 9720 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices have been examined and giving the owner of an unpatented mining claim within San Bernardino County, name and address of anyone found must seek BLM approval to cut any California. working the land; and a certificate timber located on the claim. Under the The Plan of Operations is available for setting forth the name of anyone found implementing regulations at 43 CFR public review and comment for a period to have an interest in any pre-Act 3821.4, the claim owner must file a of 30 days from the publication date of unpatented mining claim, based on an written application with the local BLM this notice. Analysis of the proposal will examination of records. office. The application must identify the be conducted in accordance with the Subsequently, BLM publishes a amount and kind of timber desired and California Desert Protection Act, Section notice, to which an owner of an the use to which it will be put. 509. The document can be viewed unpatented mining claim must submit BLM uses the information to ensure during normal business hours at the the information required by the that the cutting of timber on a valid Office of the Superintendent, Mojave implementing regulations at 43 CFR mining claim located on the O&C lands National Preserve, 222 East Main Street, 3742.3–2, including the date of location is limited to that which corresponds to Suite 202, Barstow, CA 92311. of the claim, the book and page of the amount and kind needed for the Dated: February 27, 1996. recordation of the notice or certificate of development and operation of the mine Stephen Crabtree, location, the section or sections of and does not conflict with multiple-use Field Director, Pacific West Area. public land surveys which embrace the and resource management goals. If BLM claim, whether the claimant is a locator did not collect this information, mining [FR Doc. 96–5739 Filed 3–8–96; 8:45 am] or purchaser under the location, and the claimants would be precluded from BILLING CODE 4310±70±P name and address of the claimant and cutting timber necessary for their of any other person with an interest in mining operations. Availability of Plan of Operations for the claim. Based on BLM’s experience BLM uses the information provided administering the activities described Mining Operations; ZZYZX Production by both the permittee or lessee and the above, the public reporting burden for Company, Mojave National Preserve, mining claimant to determine whether the information collections is estimated San Bernardino County, California the mining claimant has any right to or to average one hour per response. The Notice is hereby given in accordance interest in Leasing Act minerals under respondents are owners of unpatented with Section 9.17(a) of Title 36 of the the mining claim. If BLM did not collect mining claims, mill sites, and tunnel Code of Federal Regulations, Part 9, this information, the rights of mining sites located upon the public lands, Subpart A, that the National Park claimants to Leasing Act minerals reserved mineral estates of the United Service has received from James Orr, located under their claims could be States, restricted lands of the United ZZYZX Production Company a Plan of adversely affected. States, National Forests, and National Operations to conduct mining The Act of April 23, 1932 (47 Stat. Parks. The frequency of response is one operations on the Soda Lake 72 and 136, 43 U.S.C. 154) authorizes the per demand or assertion of right. The Soda Lake 88 claims in the Soda Lake Secretary of the Interior to open to number of responses per year is claim group, in the Mojave National location, entry and patent under the estimated to be about ten. The estimated Preserve, located within San Bernardino general mining laws public lands which total annual burden on new respondents County, California. are withdrawn from development under is collectively ten hours. The Plan of Operations is available for the Reclamation Act of June 17, 1902 All responses to this notice will be public review and comment for a period (32 Stat. 388, 43 U.S.C. 416). Under the summarized and included in the request of 30 days from the publication date of implementing regulations at 43 CFR for Office of Management and Budget this notice. Analysis of the proposal will 3816.2, anyone wishing to open these approval. All comments will also not be conducted until a validity study lands may file an application with BLM. become a matter of public record. is conducted in accordance with the The application must include a Dated: March 5, 1996. California Desert Protection Act, Section description of the land and the factual Annetta L. Cheek, 509. The document can be viewed basis for the belief that the land contains during normal business hours at the Chief, Regulatory Management Team. valuable mineral deposits. Office of the Superintendent, Mojave BLM uses the information provided [FR Doc. 96–5673 Filed 3–8–96; 8:45 am] National Preserve, 222 East Main Street, by the applicant to determine if it is in BILLING CODE 4310±84±P Suite 202, Barstow, CA 92311. the public interest to open land in Dated: February 27, 1996. reclamation withdrawals to mineral development. If BLM did not collect this National Park Service Stephen Crabtree, information, the development of Field Director, Pacific West Area. Availability of Plan of Operations, [FR Doc. 96–5740 Filed 3–8–96; 8:45 am] valuable mineral deposits on Mining Operations CIMA Cinder Mine, BILLING CODE 4310±70±P reclamation withdrawals would be Mojave National Preserve, San precluded. Bernardino County, California The Act of April 8, 1948 (62 Stat. 162) reopened the revested Oregon and Notice is hereby given in accordance DEPARTMENT OF JUSTICE California Railroad and reconveyed with Section 9.17 (a) of Title 36 of the Coos Bay Wagon road grant lands (the Code of Federal Regulations, Part 9, Foreign Claims Settlement O&C lands) to exploration, location, Subpart A, that the National Park Commission entry and patent under the general Service has received from J. Lorene AGENCY: Foreign Claims Settlement mining laws. The Act also validated Caffee, the Cima Cinder Mine, a Plan of Commission; Justice. mineral claims located on the O&C Operations to conduct mining ACTION: Notice of information collection lands during the period from August 28, operations on the Cinder No. 2, Cinder under review; Adjudication of claims of 1937 to April 8, 1948. The O&C lands No. 3, Cinder 2 M 12—M 14, Cinder 2 U.S. survivors of the Holocaust. comprise about 2 million acres of public M 16—M 21, Cinder 2 M 30—M 31, and forestlands in western Oregon that are Cinder 3 M 1—M 7 claims, in the This proposed information collection managed by BLM. Under the Act, the Mojave National Preserve, located is published to obtain comments from Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices 9721 the public. Comments and suggestions The information collected will be Dated at Washington, DC on March 7, are encouraged and will be accepted for used to adjudicate the claims of U.S. 1996. sixty (60) days from the date of survivors of the Holocaust and to Jeanette Matthews, publication of this notice. negotiate a sum to be paid by the Administrative Assistant. Comments should address one or Federal Republic of Germany for [FR Doc. 96–5886 Filed 3–7–96; 2:38 pm] more of the following four points: reparations for Nazi persecution of U.S. BILLING CODE 4410±01±P 1. Evaluate whether the proposed nationals. collection of information is necessary 5. Estimate of the total number of for the proper performance of the respondents and the amount of time estimated for an average respondent to functions of the Foreign Claims DEPARTMENT OF LABOR Settlement Commission (FCSC), respond: 100 responses at an average of including whether the information will 2 hours per response. Office of the Secretary have practical utility; 6. Estimate of the total public burden 2. Evaluate the accuracy of the FCSC’s (in hours) associated with the Senior Executive Service; Appointment estimate of the burden of the proposed collection: 200 annual burden hours at of a Member to the Performance collection of information, including the $10 per hour for a total burden cost of Review Board validity of the methodology and $2,000. assumptions used; If additional information is required Title 5 U.S.C. 4314(c)(4) provides that 3. Suggest ways in which the quality, concerning this overview, please Notice of the appointment of an utility and clarity of information contact: Mr. Robert B. Briggs, Clearance individual to serve as a member of the proposed to be collected might be Officer, United States Department of Performance Review Board of the Senior enhanced; and Justice, Systems Policy Staff, Justice Executive Service shall be published in 4. Suggest ways in which the FCSC Management Division, Suite 850, the Federal Register. could minimize the burden of the Washington Center Building, 1001 G St., The following individual is hereby proposed collection of information on NW., Washington, DC 20530. appointed to a three-year term on the those who are to respond, including use Dated: March 5, 1996. of appropriate automated, electronic, Department’s Performance Review Robert B. Briggs, Board: Patricia W. Lattimore. mechanical or other collection Department Clearance Officer, United States techniques or other forms of information Department of Justice. FOR FURTHER INFORMATION CONTACT: technology, such as permitting [FR Doc. 96–5665 Filed 3–8–96; 8:45 am] Mr. Larry K. Goodwin, Director of electronic submission of responses. BILLING CODE 4410±01±M Human Resources Center, Room C5526, A complete copy of this notice is U.S. Department of Labor, Frances available in the following alternative Perkins Building, 200 Constitution format: electronic file on computer Avenue, NW., Washington, DC 20210, diskette. FOREIGN CLAIMS SETTLEMENT telephone: (202) 219–6551. Please address comments, suggestions COMMISSION Signed at Washington, DC, this 5th day of and requests for additional information [F.C.S.C. Meeting Notice No. 4±96] to: Mr. David E. Bradley, Chief Counsel, March, 1996. Foreign Claims Settlement Commission Sunshine Act Meetings; Robert B. Reich, of the United States, 600 E St., NW., Announcement in Regard to Secretary of Labor. Room 6002, Washington, DC 20579. Tel. Commission Meetings and Hearings [FR Doc. 96–5717 Filed 3–8–96; 8:45 am] 202–616–6975, FAX 202–616–6993. BILLING CODE 4510±23±M Supplementary information: This The Foreign Claims Settlement proposed collection of information will Commission, pursuant to its regulations enable the FCSC to adjudicate the (45 CFR Part 504), and the Government in the Sunshine Act (5 U.S.C. 552b), Employment and Training claims of U.S. survivors of the Administration Holocaust against the Federal Republic hereby gives notice in regard to the of Germany for loss of liberty or damage scheduling of open meetings and oral to body or health as a result of Nazi hearings for the transaction of [TA±W±31,857] persecution while interned during Commission business and other matters Douglas County, Inc. dba Douglas World War II. specified, as follows: County Forest Products, Winchester, Overview of this proposed Oregon; Notice of Termination of information collection: Date and time Subject Matter Investigation 1. Type of information collection: Tues., May 7, 1996 at Consideration of Pro- New Collection. 10:00 a.m.. posed Decisions on Pursuant to Section 221 of the Trade 2. Title of the form/collection: claims against Al- Act of 1974, an investigation was Statement of Claim for Filing of Claims bania. initiated on February 5, 1996 in by Holocaust Survivors Against the response to a worker petition which was Government of the Federal Republic of All meetings are held at the Foreign Germany. Claims Settlement Commission, 600 E filed on February in behalf of workers 3. Agency Form number, and name of Street, NW., Washington, DC. Requests at Douglas County, Inc., dba Douglas component of the Department of Justice for information, or advance notices of County Forest Products, Winchester, sponsoring the collection: FCSC Form intention to observe a meeting may be Oregon. 2–96; Foreign Claims Settlement directed to: Administrative Officer, The petitioner has requested that the Commission of the United States. Foreign Claims Settlement Commission, petition be withdrawn. Consequently, 4. Affected public who will be asked 600 E Street, NW., Room 6002, further investigation in this case would to respond, as well as a brief abstract: Washington, DC 20579. Telephone: serve no purpose, and the investigation Primary: Individuals. Other: none. (202) 616–6988. has been terminated. 9722 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices

Signed in Washington, D.C. this 26th day provides detailed guidelines for use in level in their new job, or dislocated of February, 1996. applying for demonstration grants. Part workers who have not had the skills or Russell T. Kile, III includes the statement of work for training necessary to earn high wages in Acting Program Manager, Policy and the demonstration projects. Part IV their previous employment. Reemployment Services, Office of Trade identifies and defines the selection The purpose of this demonstration is Adjustment Assistance. criteria which will be used in reviewing to test an alternative response to the [FR Doc. 96–5541 Filed 3–8–96; 8:45 am] and evaluating applications. needs of dislocated workers by utilizing BILLING CODE 4510±30±M the services of entities, other than States Part I. Background and Substate Grantees (SSGs), that have A. Authorities access to jobs at wages greater than the Job Training Partnership Act, Title III, average placement wage for JTPA Section 324 of the Job Training Demonstration Program: High Wage Substate areas (SSAs) as calculated for Partnership Act authorizes the use of Job Opportunities for Dislocated the 1994 JTPA Program Year. The direct funds reserved under Title III, Part B for Workers Project involvement of private sector applicants demonstration programs of up to three that are eligible under this AGENCY: Employment and Training years in length. Administration, Labor. Applicants for grants must comply demonstration will promote the identification of high wage job ACTION: Notice of availability of funds with all Federal and State laws in and solicitation for grant application setting up their programs. For example, opportunities and the provision of the (SGA). grantees must comply with necessary services including requirements for licensing, funds may recruitment, eligibility determination, SUMMARY: All information required to only be used for activities which are in basic readjustment and retraining submit a proposal is contained in this addition to those which would services to enable dislocated workers to announcement. The U.S. Department of otherwise be available, and they must be placed in the identified job Labor (DOL), Employment and Training obtain union concurrence when opportunities. Administration (ETA), announces a The following demonstration program working within a labor agreement. demonstration program to test the goals will be required of the grantees: (1) In order to assure long-term high wage concept of the direct involvement of the wage paid to the dislocated worker opportunities, grant participants business associations and labor at placement must at a minimum exceed receiving training prior to placement organizations as an avenue for the SSA average wage at placement by must qualify for the appropriate dislocated workers to secure high wage 20 percent; (2) at least 80 percent of national or State occupational jobs, to be funded with Secretary’s project participants must be employed certifications/licenses indicating that a National Reserve funds appropriated at the targeted wage within 90 days after recognized level of occupational through Title III of the Job Training completing services under the project; competency has been achieved. Partnership Act (JTPA). This notices and (3) at least 70 percent of the project describes the process that eligible B. Purpose of the Demonstration participants will rate the services entities must use to apply for As authorized under Title III of JTPA, received as ‘‘very’’ or ‘‘extremely’’ demonstration funds, how grantees are the Dislocated Worker Program provides helpful. In order to obtain high-wage jobs, a to be selected, and the responsibilities a wide range of employment and greater investment in training and of grantees. It is anticipated that up to training services to eligible dislocated program services for each worker may $7 million will be available for funding workers to help them find and qualify be necessary. Therefore, with demonstration projects covered by this for new jobs through an established appropriate documentation, the cost per solicitation with no project being service delivery network of States and participant may be higher than under awarded more than $750,000. Funds substate grantees. This demonstration Title III formula programs operated in cannot be used to duplicate services will look at how private-sector the same local area. provided under another DOL agreement. mechanisms and systems that have DATES: Applications for grant awards access to high wage job opportunities C. Technical Assistance and Oversight will be accepted commencing March 11, can offer an alternative response to the 1996. The closing date for receipt of DOL will provide technical assistance needs of the dislocated worker to grantees in establishing appropriate proposals is April 30, 1996 at 2 p.m. population. (Eastern Time) at the address below. data collection methods and processes. A continuing concern of workers In addition, DOL will establish, for each ADDRESSES: Applications shall be facing dislocation is the erosion of demonstration project site, an oversight mailed to: Division of Acquisition and earnings resulting from starting over in group made up of Federal, State and Assistance, Attention: Brenda Banks, a new career. By identifying high wage other appropriate interested parties. Reference: SGA/DAA 96–003, job opportunities, and effective methods Employment and Training of accessing those opportunities, this D. Definitions Administration, U.S. Department of project can provide alternative Unless otherwise indicated in this Labor, Room S–4203, 200 Constitution approaches to that concern. Projects announcement, definitions of terms Avenue, NW., Washington, DC 20210. funded through this solicitation are to used herein shall be those definitions FOR FURTHER INFORMATION CONTACT: provide reemployment and/or retraining found in the Job Training Partnership Brenda Banks, Division of Acquisition services—as described in Sections Act, as amended, particularly at Section and Assistance, Telephone: (202) 219– 314(c) and 314(d) of JTPA—to 4 and Section 301. 7300 (this is not a toll-free number). dislocated workers. Participants must be SUPPLEMENTARY INFORMATION: This eligible dislocated workers under E. Contact With State JTPA Substate announcement consists of four parts. Section 301(a) of JTPA. Possible target Grantees Part I describes the authorities and populations served under the grant In order to ascertain the average wage purpose of the demonstration program could include dislocated workers who at placement of the JTPA Title III and identifies the oversight policy. Part have previously received high wages Substate area where the grant applicant II describes the application process and and are seeking to maintain that wage proposes to operate a demonstration, the Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices 9723 grant applicant may contact the State 14, 16–18) of JTPA], supportive services (1) Was sent by the U.S. Postal Service Dislocated Worker Unit (DWU) which [Section 314(c)(15)], and retraining registered or certified mail not later than administers the JTPA Title III program. services [Section 314(d)] requested the fifth calendar day before the date A list of the phone numbers of the State through this grant. For each budget line specified for receipt of the application DWUs can be found in Appendix C. item, identify the source and amount of (e.g., an offer submitted in response to funds (if applicable) other than those Part II. Application Process a solicitation requiring receipt of requested by this application and applications by the 30th of January must A. Eligible Applicants include any restrictions that may apply have been mailed by the 25th); or to the use on these funds. (A suggested Eligible applicants for demonstration (2) Was sent by U.S. Postal Service format is provided in Attachment 2). projects are employer associations, Express Mail Next Day Service—Post unions, trade associations and other Grant funds may cover only those Office to Addressee, not later than 5 organizations and institutions that can costs which are appropriate and p.m. at the place of mailing two working document: (1) Their access to reasonable determined by OMB Circular days prior to the date specified for A–122, Cost Principles for Nonprofit employment opportunities in receipt of proposals. The term ‘‘working Organizations and Title III of the JTPA occupations for which there is a days’’ excludes weekends and U.S. Regulations. Federal funds cannot be demand and at wages at least 20 percent Federal holidays. greater than the average placement wage used to provide training which an The only acceptable evidence to for the local JTPA Title III program; (2) employer is in a position to, and would establish the date of mailing of a late the ability to deliver the services otherwise, provide, nor can they be used proposed; and (3) the management to provide salaries for program proposal sent either by the U.S. Postal structure necessary to ensure the participants. They can however be used Service registered or certified mail is the integrity of the funds requested (by for employer reimbursement of the U.S. postmark both on the envelope or meeting the standards for financial extraordinary costs associated with on- wrapper and on the original receipt management and participant data the-job training (see 20 CFR 627.240 of from the U.S. Postal Service. Both systems as outlined in 20 CFR 627.425). the Job Training Partnership Act postmarks must show a legible date or Individual employers, and current Regulations regarding used of JTPA the proposal shall be processed as if JTPA State and substate formula grant funds for on-the-job training). mailed late. ‘‘Postmark’’ means a program grantees are not eligible Federal funds may not be used for printed, stamped, or otherwise placed grantees for this demonstration program acquisition of production equipment. impression (exclusive of a postage meter (although they may participate). Applicants may budget limited amounts machine impression) that is readily Entities described in section 501(c)(4) of grant funds to work with technical identifiable without further action as of the Internal Revenue Code who expert(s)/consultants to provide advice having been supplied and affixed by engage in lobbying activities are not and develop more complete project employees of the U.S. Postal Service on eligible to receive funds under this SGA. plans. However, the level of detail the date of mailing. Therefore, The new Lobbying Disclosure Act of regarding the project plan may affect the applicants should request the postal 1995, Public Law No. 104–65, 109 Stat. amount of funding provided. clerk to place a legible hand 691, which became effective January 1, 2. Technical Proposal cancellation ‘‘bull’s eye’’ postmark on 1996, prohibits the award of federal both the receipt and the envelope or funds to these entities if they engage in The technical proposal shall wrapper. demonstrate the offeror’s capabilities in lobbying activities. The only acceptable evidence to accordance with the Statement of Work establish the date of mailing of a late B. Contents in Part III of this solicitation. NO COST proposal sent by ‘‘Express Mail Next DATA OR REFERENCE TO PRICE An original and three (3) copies of the Day Service—Post Office to Addressee’’ SHALL BE INCLUDED IN THE proposal shall be submitted. The is the date entered by the post office TECHNICAL PROPOSAL. proposal shall consist of two (2) receiving clerk on the ‘‘Express Mail separate and distinct parts—Part I, the C. Hand-Delivered Proposals Next Day Service—Post Office to Financial Proposal, and Part II, the Addressee’’ label and the postmark on Proposals should be mailed no later Technical Proposal. both the envelope and wrapper and on than five (5) days prior to the closing the original receipt from the U.S. Postal 1. Financial Proposal date for the receipt of applications. The Financial Proposal, Part I, shall However, if proposals are hand- Service. ‘‘Postmark’’ has the same contain the SF–424, ‘‘Application for delivered, they shall be received at the meaning as defined above. Therefore, Federal Assistance’’ (Appendix A). The designated place by 2 p.m., Eastern applicants should request the postal applicant shall indicate on the SF 424 Time on the closing date for receipt of clerk to place a legible hand the type of organization for which it applications. All overnight mail will be cancellation ‘‘bull’s eye’’ postmark on qualifies under the eligibility criteria in considered to be hand-delivered and both the receipt and the envelope part II.A, paragraph one. The Federal must be received at the designated place wrapper. Domestic Assistance Catalog number is by the specified time and closing date. E. Withdrawal of Proposals 17.246. The Project Line Item Budget Telegraphed and/or faxed proposals will Estimates (Appendix B, pages 1 and 2) not be honored. Proposals that fail to Proposals may be withdrawn by are provided to assist applicants in the adhere to the above instructions will not written notice or telegram (including preparation of their cost proposal. The be considered. mailgram) received at any time before budget shall include on separate pages award. Proposals may be withdrawn in D. Late Proposals detailed breakout of each budget line person by an applicant or an authorized item, including detailed administrative Any proposal received at the office representative thereof, if the costs and costs for one or more of the designated in the solicitation after the representative’s identity is made known following categories as applicable: basic exact time specified for receipt will not and the representative signs a receipt for readjustment services [Section 314(c)(1– be considered unless it— the proposal. 9724 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices

F. Period of Performance wage earners who are to trained for and and announcements, use of media, The Period of Performance shall be 18 placed high wage jobs, or (2) high wage staffing for this task, use of the Service months from the date of execution by dislocated workers who are to be trained Delivery Area and Community Based the Government. Delivery of services to and placed in jobs that maintain their Organizations, etc., but must participants will begin within 90 days of earning levels. Describe the dislocated demonstrate successful experience in execution. Justification for later worker target population, including the reaching the target population. 2. Eligibility determination: The name operation start date must be provided in size, location(s), and the documented of the entity responsible for the proposal. needs of this population relative to services to be provided in order to determination of Title III eligibility for G. Option to Extend ensure placement in proposed high participants entering the program. If the The Department may elect to add wage jobs. Explain the basis for the entity to determine eligibility will not funds to the Grant for an additional year selection of high or low wage dislocated be the local title III substate grantee, of operation, based on the availability of workers as the demonstration’s target describe steps that will be taken to funds, successful program operation, population. If the workers represent a ensure proper documentation of the participants’ eligibility. and the needs of the Department. particular industry or occupation, it should be noted in the application. 3. Selection Criteria: A description of H. Page Count Limit the criteria and process to be used in B. Description of the Targeted High selecting those individuals to be served Applications are to be limited to 25 Wage Jobs single-side pages 8.5 in. x 11 in., single- by the project from among the total spaced, with a maximum of 10 pages of 1. Labor market condition— number of eligible persons recruited for the project. attachments. Documentation using labor market information appropriate to the 4. Services to be Provided: A I. Cost Limitations geographic area to be served indicating description of the services to be These demonstration grants are not that (a) the availability of a substantial provided from the time of selection for subject to the cost limitations at Section number of job openings in targeted high the project through placement in the 315 of JTPA. However, any offeror wage occupations and that (b) a shortage high wage job. The description must indicate a clear understanding of what proposing administrative cost that of qualified workers exist to fill these services and support will be necessary exceed 15 percent of the budget and/or documented openings. for the participants to successfully be supportive services that exceed 25 2. Supply of competing job placed in the high wage jobs, including percent of the funds requested in the applicants—Assurance that the number services not funded under the grant, and application must provide a narrative of individuals receiving training (from ways to address participant financial justification. all source—JTPA, secondary and post secondary vocational schools, needs during periods of training. Grant J. Support of appropriate labor proprietary schools, union funded activities can include any organization(s) apprenticeship programs, etc.) for these activities listed in Section 314 (c) and Documentation of consultation and occupations are not in excess of the (d) of the Job Training Partnership Act support for the project concept from number of job openings projected and should include at a minimum, applicable labor organizations must be within the next 12 months. assessment, retraining, job placement, provided in accordance with Part III., 3. Identification of specific job and supportive services as well as relocation assistance, if applicable. A Item F. Below. openings—Applicants may document their access to firm job commitments by description of the provisions made for Part III. Statement of Work specific employers, or they may referral of participants who are Each application should follow the delineate a cogent job development unsuccessful in the project to other format outlined below. For sections, A strategy based on the characteristics of appropriate employment and training through G, the application should their organization and an analysis of the service providers should be provided. include: (1) information that responds to local labor market area. The degree to Information must demonstrate that the requirements in this part; (2) which this information is explicit will proposed training provider(s) are information that indicates adherence to be taken into account in review of the qualified to deliver training that meets the provisions described in Parts I and proposal. appropriate employment standards and/ II of this solicitation; and (3) other If all jobs that are projected to be or certification and licensing information the offeror believes will filled are not available at the onset of requirements. Such issues as past address the selection criteria identified the project, and explanation of how new performance, qualifications of in Part IV. job openings will identified and instructors, accreditation of certification developed must be included. Note: of training curricula should be Note: If the offeror intends to serve Special credit will be given to addressed where appropriate. In dislocated workers in more than one labor opportunities for jobs in nontraditional addition, describe how training will be market area, information required under A customized to account for transferable and B below should be provided for each occupations. area. Similarly to the extent that the program skills and previous education. Costs of C. Project Design for the High Wage Job proposed retraining relative to the costs design differs for different geographic areas, Opportunities for Dislocated Workers information must be provided relative to of similar training through other each geographic area to be served. Demonstration providers should be addressed. Describe the major project 5. Participant flow: A flowchart and A. Description of the Target Population components listed below: timeliness to illustrate how the project All project participants must be 1. Outreach and recruitment of project will assure access to the necessary and eligible dislocated workers as defined in participants: A description of how appropriate reemployment and Section 301(a) of the Job Training eligible dislocated workers will be retraining services required to place Partnership Act. Projects may target identified and recruited for the targeted recipients in the targeted high wage either or both of the two following high wage jobs. Recruitment efforts may jobs. A description of the sequence of groups of dislocated workers: (1) Low address public service communications services and the criteria used to Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices 9725 determine the appropriateness of collection, and how the information will labor organization represents a specific services for specific participants be used in implementing and managing substantial number of workers engaged should accompany the flowchart. Please the project. It is expected that grantees in similar work. note if service choice options will be may employ focus groups and surveys, Part IV. Evaluation Criteria available to the participant. in addition to other methods, to collect feedback information. Prospective offerors are advised that D. Project Management Technical assistance in the design and the selection of grantee(s) for award is 1. Structure—Describe the implementation of customer satisfaction to be made after careful evaluation of management structure for the project data collection may be provided by the proposals by a panel selected by DOL. including a staffing plan which Department of Labor. Panelists will evaluate the proposals for describes each position and the 4. Previous project management acceptability based upon the overall percentage of time assigned to this experience.—Provide an objective responsiveness to the Statement of project. demonstration of the applicant’s ability Work, with emphasis on the various 2. Program Integrity—Describe the to manage the project, ensure the factors enumerated below, taking into mechanisms to ensure financial integrity of the funds, and deliver the consideration the extent to which funds accountability of grant funds, and proposed performance. Indicate the are available. The panel results are performance accountability relative to applicant’s past experience in the advisory in nature and not biding on the job placements. management of grant-funded projects Grant Officer. Specific references should be made to similar to that being proposed, 1. Documentation of High Wage collecting information needed to: 1) particularly regarding oversight and Occupational Demand (20 points) determine the achievement of project operating functions including financial outcomes as indicated in section F management. The documentation of demand for the (including follow-ups of participants 90 targeted high wage job, at the present E. Outcomes days after leaving the program) and 2) time and in the future, is based upon the reporting of participants, outcomes, Provide the following information for reliable, recognized, and timely sources and expenditures. the project: of information. The analysis of the labor 3. Monitoring— 1. Planned number of participants. market indicates a general a. Establishment of Project 2. Average Cost per participant understanding of the labor market in the Implementation and Progress (derived by dividing the amount of area(s) where the project will operate. Benchmarks: Describe how the project funds requested by the number of Documentation that the supply of will keep records of its activities as participants planned). workers at the skill level for which required in 29 CFR Parts 95 and 97 and 3. Planned number of program training is to be provided is inadequate 20 CFR 631.63 as appropriate, including completions (the number of participants to meet the local labor market needs. who complete the services provided by benchmarks to indicate the planned 2. Description of the Target Population the grant). implementation of the project which to be Served (20 points) will provide: 4. Planned number of program-related placements (the number of participants The description of the characteristics —Quarterly implementation schedule of who are placed in jobs related to the of the target group is clear and participant activity and quarterly training or services funded by the grant). meaningful and sufficiently detailed to cumulative expenditure projections 5. Average wage at placement (at a determine the potential participants’ (see Attachment 3). minimum, must exceed the JTPA service needs. Documentation is —Start-up implementation events for Substate Area Title III average wage at provided that a significant number of each month that are necessary to placement by 20 percent). dislocated workers who meet these achieve a fully operational project 6. Placement rate (must achieve a characteristics are available for status (assume accomplishments by placement rate of at least 80 percent participation in the project area. the end of the month specified). within 90 days of completing the Sufficient rationale is provided to b. Participant progress: A description project) [derived by dividing the understand how the number of of how a participant’s continuing number of participants placed in jobs by dislocated workers to be enrolled in the participation in the project will be the number of project participants project was determined. monitored. enrolled in the project]. The recruitment plan supports the c. Project performance: Provide the 7. Cost per placement [derived by number of planned enrollments. information on project performance that dividing the amount of the grant request 3. Service plan (35 points) will be collected on a short-term basis by the number of placements]. (weekly, monthly, etc.) by program 8. Average wage at 13-week follow- The scope of services to be provided managers for internal project up. is adequate to meet the needs of the management to determine if the project 9. Job retention rate at 13-week target population given (1) their is accomplishing its objectives as follow-up. characteristics; (2) the occupation(s) in planned or if project adjustments are 10. Percentage of participants rating which they are to be trained and (3) the necessary. the services of the project ‘‘very’’ or length of program participation planned d. Customer satisfaction: A ‘‘extremely’’ helpful. prior to placement. description of the process and The strategies of identifying job procedures to be used to obtain F. Coordination openings appear to be appropriate. feedback from participants and other Docmentationof consultation and Adequate provision has been made for appropriate parties on the support for the project concept from job development and placement services responsiveness and effectiveness of the applicable labor organizations must be are appropriate to the target services provided. The description submitted when 20% or more of the population’s needs. should include an identification of the targeted worker population are Note: Special Consideration will be types of information to be obtained, the represented by a labor organization, or given for: (1) Recruitment and method(s) and frequency of data where the training is for jobs where a placement plans providing jobs in 9726 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices nontraditional occupations and (2) the services to be provided, and the jobs would be based on the offeror’s proposal specifically identified innovative in which the project participants will be without alteration. The offeror’s approaches to training or other services. placed. Sufficient justification is signature on the SF–424 constitutes a provided for cost per participant. Other 4. Management Plan (15 points) binding offer. resources have been leveraged to Signed at Washington, D.C., this 5th day of The applicant has successfully supplement this grant and involve a March, 1996. managed grants in the past. The project broader constituency of interested workplan demonstrates the applicant’s parties. Janice E. Perry, ability to effectively track the progress The proposed outcomes are cost ETA Grant Officer. of the project with respect to planned effective, e.g., placement rate, cost per performance and expenditures. Appendices placement, wage replacement rate, wage Sufficient procedures are in place to use level achieved in comparison to local 1. Appendix A—Application for Federal the information obtained by the project median wage, at a minimum, meet the Assistance (Standard Form 424) operator to take corrective action if minimum standards stated in this indicated. The proposal provides for a 2. Appendix B—Project Line Item announcement. grievance process. The project operator Budget Estimates, Pages 1 and 2 has a method of assessing customer Applicants are advised that 3. Appendix C—State JTPA Dislocated satisfaction and taking into account the discussions may be necessary in order Worker Units Telephone Listing results of such assessment in the project to clarify any inconsistencies in their operations. Review by the appropriate applications. The final decision on the Suggested Format Attachments labor organizations, where appropriate, award will be based on what is most 1. Attachment 1—Implementation and is documented. advantageous to the Federal Government as determined by the ETA Performance Benchmarks 5. Cost (10 points) Grant Officer. The Government may 2. Attachment 2—Service Plan Matrix Project costs are reasonable in relation elect to award grant(s) without BILLING CODE 4510±30±M to the characteristics of the target group, discussion with the offeror(s). Award Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices 9727 9728 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices 9729 9730 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices 9731 9732 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices 9733

[FR Doc. 96–5718 Filed 3–8–96; 8:45 am] BILLING CODE 4510±30±C 9734 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices

Notice of Revised Schedule of Signed at Washington, D.C., on March 5, 3. Proposed Rule: Amendments to Part 711, Remuneration for the UCX Program 1996. NCUA’s Rules and Regulations, Management Timothy M. Barnicle, Official Interlocks. 4. Final Rule: Amendments to Part 748, Under Section 8521(a)(2) of title 5 of Assistant Secretary of Labor. NCUA’s Rules and Regulations, Criminal the United States Code, the Secretary of [FR Doc. 96–5719 Filed 3–8–96; 8:45 am] Labor is required to issue from time to Referral. BILLING CODE 4510±30±M 5. Final Amendments to Interpretive time a Schedule of Remuneration Ruling and Policy Statement 94–1, Chartering specifying the pay and allowances for and Field of Membership. each pay grade of members of the LEGAL SERVICES CORPORATION RECESS: 2:45 p.m. military services. The schedules are used to calculate the base period wages TIME AND DATE: 3:00 p.m., Wednesday, Board of Directors Sunshine Act March 13, 1996. and benefits payable under the program Meeting of Unemployment Compensation for Ex- PLACE: Board Room, 7th Floor, Room servicemembers (UCX Program). TIME AND DATE: The Board of Directors 7047, 1775 Duke Street, Alexandria, VA The revised schedule published with of the Legal Services Corporation will 22314–3428. this Notice reflects increases in military meet by telephone on March 20, 1996. STATUS: Closed. pay and allowances which were The meeting will begin at 11:00 a.m. MATTERS TO BE CONSIDERED: effective in January 1996. Eastern Standard Time. 1. Approval of Minutes of Previous Open Accordingly, the following new LOCATION: Members of the Corporation’s Meetings. Schedule of Remuneration, issued staff and the public will be able to hear 2. Request from a Federal Credit Union to pursuant to 20 CFR 614.12, applies to and participate in the meeting by means Convert to a Community Charter. Closed ‘‘First Claims’’ for UCX which are of telephonic conferencing equipment pursuant to exemption (8). effective beginning with the first day of set up for this purpose in the 3. Administrative Actions under Part 745 the first week which begins after April of NCUA’s Rules and Regulations. Closed Corporation’s Board Room, on the 11th pursuant to exemption (6). 6, 1996. floor of 750 First Street, NE, 4. Administrative Action under Section Washington, DC 20002. 206 of the FCU Act. Closed pursuant to Monthly Pay grade STATUS OF MEETING: Open. exemptions (7), (8), and (10). rate 5. Personnel Action: SSP Merit Pay MATTERS TO BE CONSIDERED: Increase. Closed pursuant to exemption (6). (1) Commissioned Officers 1. Approval of Agenda. FOR FURTHER INFORMATION CONTACT: 2. Consider and act on the adoption of a 0±10 ...... $10,629 funding policy for the remainder of FY 1996. Becky Baker, Secretary of the Board, 0±9 ...... 10,274 Telephone (703) 518–6304. 0±8 ...... 9,426 CONTACT PERSON FOR INFORMATION: Hattie Ulan, 0±7 ...... 8,495 Victor M. Fortuno, General Counsel, at Acting Secretary of the Board. 0±6 ...... 7,217 (202) 336–8800. [FR Doc. 96–5809 Filed 3–7–96; 10:14 am] 0±5 ...... 6,040 Upon request, meeting notices will be 0±4 ...... 4,973 made available in alternate formats to BILLING CODE 7535±01±M 0±3 ...... 4,033 0±2 ...... 3,236 accommodate visual and hearing 0±1 ...... 2,307 impairments. Individuals who have a disability and need an accommodation NATIONAL FOUNDATION ON THE (2) Commissioned Officers With Over 4 ARTS AND THE HUMANITIES Years Active Duty as an Enlisted Mem- to attend the meeting should contact ber or Warrant Officer Barbara Asante, at (202) 336–8800. Commission of Fine Arts; Meeting Dated: March 7, 1996. 0±3E ...... $4,588 Victor M. Fortuno, The Commission of Fine Arts’ 0±2E ...... 3,835 meeting scheduled for 14 March 1996 General Counsel. 0±1E ...... 3,203 has been cancelled. The next meeting is [FR Doc. 96–5905 Filed 3–7–96; 3:27 pm] (3) Warrant Officers scheduled for 18 April 1996 at 10:00 BILLING CODE 7050±01±P a.m. in the Commission’s offices in the W±5 ...... $5,389 Pension Building, Suite 312, Judiciary W±4 ...... 4,606 Square, 441 F Street NW., Washington, W±3 ...... 3,851 NATIONAL CREDIT UNION DC 20001 to discuss various projects W±2 ...... 3,256 ADMINISTRATION affecting the appearance of Washington, W±1 ...... 2,756 DC, including buildings, memorials, Sunshine Act Meeting Enlisted Personnel parks, etc.; also matters of design TIME AND DATE: 1:30 p.m., Wednesday, referred by other agencies of the E±9 ...... $4,172 March 13, 1996. government. Inquiries regarding the agenda and E±8 ...... 3,523 PLACE: Board Room, 7th Floor, Room requests to submit written or oral E±7 ...... 3,068 7047, 1775 Duke Street, Alexandria, VA E±6 ...... 2,674 statements should be addressed to 22314–3428. E±5 ...... 2,295 Charles H. Atherton, Secretary, E±4 ...... 1,908 STATUS: Open. Commission of Fine Arts, at the above E±3 ...... 1,658 BOARD BRIEFING: address or call the above number. E±2 ...... 1,515 E±1 ...... 1,314 1. Insurance Fund Report. Dated in Washington, DC on March 4, MATTERS TO BE CONSIDERED: 1996. Charles H. Atherton, The publication of this new Schedule 1. Approval of Minutes of Previous Open of Remuneration does not revoke any Meeting. Secretary. prior schedule or change the period of 2. Policy Statement: Alternative Dispute [FR Doc. 96–5664 Filed 3–8–96; 8:45 am] time any prior schedule was in effect. Resolution. BILLING CODE 6330±01±M Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices 9735

NUCLEAR REGULATORY 8. An estimate of the total number of ACTION: Notice of the OMB review of COMMISSION hours needed annually to complete the information collection and solicitation requirement or request: 4,848 (48 hours of public comment. The NRC hereby Documents Containing Reporting or for reporting and 800 hours each for 6 informs potential respondents that an Recordkeeping Requirements: Office recordkeepers). agency may not conduct or sponsor, and of Management and Budget (OMB) 9. An indication of whether Section that a person is not required to respond Review 3507(d), Pub. L. 104–13 applies: Not to, a collection of information unless it applicable. displays a currently valid OMB control AGENCY: Nuclear Regulatory 10. Abstract: 10 CFR Part 75 number. Commission (NRC). establishes a system of nuclear material ACTION: Notice of the OMB review of accounting and control to implement SUMMARY: The NRC has recently information collection and solicitation the agreement between the United submitted to OMB for review the of public comment. The NRC hereby States and the International Atomic following proposal for the collection of informs potential respondents that an Energy Agency (IAEA). Under that information under the provisions of the agency may not conduct or sponsor, and agreement, NRC is required to collect Paperwork Reduction Act of 1995 (44 that a person is not required to respond the information and make it available to U.S.C. Chapter 35). to, a collection of information unless it the IAEA. This submittal is a revision 1. Type of submission, new, revision, displays a currently valid OMB control which reflects a reduction in burden or extension: Extension. number. because IAEA will only be selecting one 2. The title of the information NRC-licensed facility for inspection collection: IAEA Form N–71—Design SUMMARY: The NRC has recently pursuant to § 75.41. Information Questionnaire. submitted to OMB for review the A copy of the submittal may be 3. The form number if applicable: following proposal for the collection of viewed free of charge at the NRC Public IAEA Form N–71. information under the provisions of the Document Room, 2120 L Street NW. 4. How often the collection is Paperwork Reduction Act of 1995 (44 (Lower Level), Washington, DC. required: Once. U.S.C. Chapter 35). Members of the public who are in the 5. Who will be required or asked to 1. Type of submission, new, revision, Washington, DC, area can access the report: Licensees of facilities on the U.S. or extension: Revision. submittal via modem on the Public eligible list who have been notified in 2. The title of the information Document Room Bulletin Board (NRC’s writing by the Commission to submit collection: 10 CFR Part 75—Safeguards Advance Copy Document Library) NRC the form. on Nuclear Material—Implementation of subsystem at FedWorld, 703–321–3339. 6. An estimate of the number of US/IAEA Agreement. Members of the public who are located responses: One. 3. The form number if applicable: Not outside of the Washington, DC, area can 7. The estimated number of annual applicable. dial FedWorld, 1–800–303–9672, or use respondents: One. 4. How often the collection is the FedWorld Internet address: 8. An estimate of the total number of required: Installation information is fedworld.gov (Telnet). The document hours needed annually to complete the submitted upon written notification will be available on the bulletin board requirement or request: 360. from the Commission. Changes are for 30 days after the signature date of 9. An indication of whether Section submitted as occurring. Nuclear this notice. If assistance is needed in 3507(d), Pub. L. 104–13 applies: Not Material accounting and control accessing the document, please contact applicable. information is submitted in accordance the FedWorld help desk at 703–487– 10. Abstract: Licensees of facilities with specified instructions. 4608. that appear on the U.S. eligible list, 5. Who will be required or asked to Comments and questions should be pursuant to the US/IAEA Safeguards report: All persons licensed or certified directed to the OMB reviewer by April Agreement, and who have been notified by the Commission or Agreement States 10, 1996: Troy Hillier, Office of in writing by the Commission, are to possess source or special nuclear Information and Regulatory Affairs required to complete and submit a material at an installation specified on (3150–0055), NEOB–10202, Office of Design Information Questionnaire, IAEA the U.S. eligible list as determined by Management and Budget, Washington, Form N–71, to provide information the Secretary of State or his designee DC 20503. Comments can also be concerning their installation for use of and filed with the Commission, as well submitted by telephone at (202) 395– the International Atomic Energy as holders of construction permits and 3084. The NRC Clearance Officer is Agency. persons who intend to receive source Brenda Jo. Shelton, (301) 415–7233. A copy of the submittal may be material. viewed free of charge at the NRC Public Dated at Rockville, Maryland, this 1st day 6. An estimate of the number of of March 1996. Document Room, 2120 L Street, NW (Lower Level), Washington, DC. responses: One. The IAEA is currently For the Nuclear Regulatory Commission. expected to select one NRC-licensed Members of the public who are in the Gerald F. Cranford, facility for inspection in the next year. Washington, DC, area can access the 7. The estimated number of annual Designated Senior Official for Information submittal via modem on the Public Resources Management. respondents: One reporting and five Document Room Bulletin Board (NRC’s recordkeeping. The NRC-licensed [FR Doc. 96–5678 Filed 3–8–96; 8:45 am] Advance Copy Document Library) NRC facility selected for inspection will be BILLING CODE 7590±01±P subsystem at FedWorld, 703–321–3339. reporting design information. This Members of the public who are located facility and the five facilities selected Documents Containing Reporting or outside of the Washington, DC, area can pursuant to a separate protocol will Recordkeeping Requirements: Office dial FedWorld, 1–800–303–9672, or use maintain transfer and material balance of Management and Budget (OMB) the FedWorld Internet address: records, but reporting to the IAEA will Review fedworld.gov (Telnet). The document be through the U.S. State system will be available on the bulletin board (Nuclear Materials Management and AGENCY: Nuclear Regulatory for 30 days after the signature date of Safeguards System). Commission (NRC). this notice. If assistance is needed in 9736 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices accessing the document, please contact Opportunitiy for a Hearing (Emergency SUPPLEMENTARY INFORMATION: the FedWorld help desk at 703–487– Circumstances)’’ for the Virgil C. Subsection (e)(12) of the Privacy Act of 4608. Summer Nuclear Power Station, Unit 1. 1974 (5 U.S.C. 552a), as amended by the Comments and questions should be This notice corrects the notice Computer Matching and Privacy directed to the OMB reviewer by April published in the Federal Register on Protection Act of 1988 (Pub. L. 100– 10, 1996: Troy Hillier, Office of February 28, 1996 (61 FR 7568). The 503), requires agencies to publish notice Information and Regulatory Affairs phrase ‘‘No significant hazard of the establishment or revision of a (3150–0056), NEOB–10202, Office of consideration comments received: computer matching program. Subsection Management and Budget, Washington, None’’ is deleted. Also, at the end of the (o) requires agencies to conclude a DC 20503. Comments can also be notice, ‘‘Attorney for licensee: Randolph computer matching agreement submitted by telephone at (202) 395– R. Mahan, South Carolina Electric & Gas containing the terms under which the 3084. The NRC Clearance Officer is Company, Post Office Box 764, new or revised matching program will Brenda Jo. Shelton, (301) 415–7233. Columbia, South Carolina 29218’’ and be conducted. This document publishes Dated at Rockville, Maryland, this 1st day ‘‘NRC Project Director: Frederick J. notice of a matching program for which of March 1996. Hebdon’’ are added. an agreement has been concluded. The Postal Service will conduct an For the Nuclear Regulatory Commission. Dated at Rockville Maryland, this 4th day internal agency match that compares Gerald F. Cranford, of March 1996. Jacob I. Zimmerman, records from a Privacy Act system of Designated Senior Official for Information records and a grouping of records that Acting Project Manager, Project Directorate Resources Management. is not subject to the Privacy Act. Under [FR Doc. 96–5680 Filed 3–8–96; 8:45 am] II–3, Division of Reactor Projects—I/II, Office of Nuclear Reactor Regulation. those circumstances, the match does not BILLING CODE 7590±01±P [FR Doc. 96–5679 Filed 3–8–96; 8:45 am] constitute a matching program subject to the computer matching provisions of the BILLING CODE 7590±01±P Privacy Act. Nevertheless, the Postal Workshop on Generic Letter 96±01 Service is conducting the matching ``Testing of Safety-Related Logic program under those provisions because Circuits'' POSTAL SERVICE of potentially adverse consequences to AGENCY: Nuclear Regulatory Privacy Act of 1974; Computer some postal employees. This new computer matching program Commission. Matching Program identifies postal employees who have ACTION: Announcement of meeting. AGENCY: Postal Service. improperly exercised their influence to SUMMARY: The NRC staff will meet with ACTION: Notice of computer matching direct postal contract awards or other the Nuclear Energy Institute (NEI) and program. purchases to companies owned and interested Utilities to discuss operated by themselves, family implementation and provide SUMMARY: This document publishes members, or others. In addition, this clarification on Generic Letter 96–01. notice that the Postal Service intends to matching program identifies any DATES: The meeting will be held on conduct an internal computer matching employees who are involved in March 19, 1996, from 1:30 p.m. to 4 program that compares its records about financial conflict of interest, fraud, p.m. postal employees with records about misrepresentation, or other situations in violation of Postal Service standards of ADDRESSES: The meeting will be held at vendors. The objective of this matching conduct. Where records match, limited the Sheraton Gateway Hotel (Atlanta program is to identify instances where information is provided from employee Airport) 1900 Sullivan Road, College employees have attempted to corrupt and vendor records to the Postal Park, Georgia. the postal procurement process and defraud the Postal Service. This notice Inspection Service, which then FOR FURTHER INFORMATION CONTACT: meets the requirements of subsection conducts an examination to determine Interested members of the public should (e)(12) of the Privacy Act of 1974 (5 any impropriety. A previous computer contact Eunice Deras of NEI at (202) U.S.C. 552a, as amended by Pub. L. matching program, conducted for the 739–8150 for registration. 100–503, the Computer Matching and same purpose, resulted in refinement of Dated at Rockville, Maryland, this 5th day Privacy Protection Act of 1988) that the matching and tracking process and of March 1996. agencies publish notice of new the detection of contracts awarded in For the Nuclear Regulatory Commission. matching programs. conflict with postal policy. Set forth Douglas V. Pickett, DATES: Any interested party may submit below is the notice of the establishment Acting Director, Project Directorate III–3, written comments on this proposed of a computer matching program. Division of Reactor Projects—III/IV, Office of Nuclear Reactor Regulation. matching program. The matching Notice of an Internal Computer program will begin no sooner than April [FR Doc. 96–5677 Filed 3–8–96; 8:45 am] Matching Program—United States 22, 1996. Postal Service (Internal Agency Match BILLING CODE 7590±01±P ADDRESSES: Written comments on this of Payroll File With Vendor File) proposal should be mailed or delivered A. Participating Agencies: The United [Docket No. 50±395] to Payroll Accounting/Records, United States Postal Service is the only States Postal Service, 475 L’Enfant Plaza South Carolina Electric & Gas participant in this computer matching SW, Room 8650, Washington, DC program, which compares two internal Company; South Carolina Public 20260–5243. Copies of all written Service Authority; Correction records files. comments will be available at the above B. Purpose of the Match: This The February 28, 1996, Federal address for public inspection and computer matching program identifies Register contained a ‘‘Notice of Issuance photocopying between 8 a.m. and 4:45 postal employees who have improperly of Amendment to Facility Operating p.m., Monday through Friday. exercised their influence to direct postal License and Final Determination of no FOR FURTHER INFORMATION CONTACT: contract awards or other purchases to Significant Hazards Consideration and Betty E. Sheriff, (202) 268–2608. companies owned and operated by Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices 9737 themselves, family members or others. (56 FR 11798–11805)). Where it is 1:00 p.m.—Government investigations The matching program identifies established that misconduct is present, of possible exposure to chemical employees who are involved in administrative disciplinary action and/ and biological warfare agents. financial conflict of interest, fraud, or prosecution may be initiated. 2:30 p.m.—Break. misrepresentation, or other situations in However, no such action may be taken 2:45 p.m.—Non-governmental violation of Postal Service standards of until the individual has received notice investigations of possible exposure conduct. of adverse findings and has been given to chemical and biological warfare C. Authority for Conducting the an opportunity to contest them, as agents. Match: Sections 401 and 404 of title 39, required by Pub. L. 100–503. 4:15 p.m.—Committee members and United States Code, grant the Postal Stanley F. Mires, staff discussion. Inspection Service the power to conduct Chief Counsel, Legislative. 4:30 p.m.—Adjourn. civil and criminal investigations of [FR Doc. 96–5585 Filed 3–8–96; 8:45 am] A final agenda will be available at the violations of postal laws, including meeting. attempts to corrupt the postal BILLING CODE 7710±12±P procurement process and defraud the Public Participation Postal Service. This computer matching The meeting is open to the public. program is also consistent with the PRESINDENTIAL ADVISORY Members of the public who wish to Inspection Service’s Inspector General COMMITTEE ON GULF WAR make oral statements should contact the authority to address fraud, waste, and VETERANS' ILLNESSES Advisory Committee at the address or abuse in the agency. telephone number listed below at least D. Records to be Matched: This Meeting five business days prior to the meeting. computer matching program involves AGENCY: Presidential Advisory Reasonable provisions will be made to one Privacy Act system of records, include on the agenda presentations ‘‘USPS 050.020, Finance Records— Committee on Gulf War Veterans’ Illnesses. from individuals who have not yet had Payroll System,’’ which was most an opportunity to address the Advisory ACTION: Notice of open meeting. recently published in its entirety in the Committee. Priority will be given to Federal Register on December 4, 1992 SUMMARY: This notice is hereby given to Gulf War veterans and their families. (57 FR 57517–57518) and amended in The panel chair is empowered to the Federal Register on November 22, announce an open meeting of a panel of conduct the meeting in a fashion that 1993 (58 FR 61718–61719). That system the Presidential Advisory Committee on will facilitate the orderly conduct of contains Postal Service employee data Gulf War Veterans’ Illnesses. The panel business. People who wish to file that are compared with data in the will discuss issues related to chemical written statements with the Advisory Postal Service’s vendor payment files and biological warfare agents and will Committee may do so at any time. (these files relate to businesses and, receive comment from members of the therefore, are not covered by the Privacy public. Major Thomas P. Cross will FOR FURTHER INFORMATION CONTACT: Act). Matches are made on the basis of chair this panel meeting. Michael E. Kowalok, Presidential like expanded ZIP Codes. For each hit DATES: April 16. 1996, 9:20 a.m.–4:30 Advisory Committee on Gulf War (matched 9-digit ZIP Codes), the p.m. Veterans’ Illnesses. 1411 K Street, N.W., employee’s name, address, social PLACE: Radisson Hotel Atlanta, suite 1000, Washington, DC 20005, security number, occupation, and pay Courtland & International Boulevards, Telephone: (202) 761–0066, Fax: (202) location are extracted from the payroll Atlanta, GA 30303. 761–0310. file; the vendor’s name, address, vendor SUPPLEMENTARY INFORMATION: The Dated: March 6, 1996. number, account number, finance President established the Presidential C.A. Bock, number, year-to-date amount paid, and Advisory Committee on Gulf War Federal Register Liaison Officer, Presidential most recent payment date are extracted Veterans’ Illnesses by Executive Order Advisory Committee on Gulf War Veterans’ from the vendor file. 12961, May 26, 1995. The purpose of Illnesses. E. Description of Computer Matching this Advisory Committee is to review [FR Doc. 96–5662 Filed 3–8–96; 8:45 am] Program: A match of nine-digit ZIP and provide recommendations on the BILLING CODE 3610±76±M Codes indicates whether the employee’s full range of government activities home address and the vendor’s address associated with Gulf War veterans’ are the same physical geographical illnesses. The Advisory Committee RAILROAD RETIREMENT BOARD location. No adverse action is taken reports to the President through the based solely on such a match; the match Secretary of Defense, the Secretary of Determination of Quarterly Rate of merely indicates a need for further Health and Human Services, and the Excise Tax for Railroad Retirement review to determine whether Supplemental Annuity Program investigation is warranted. Review Secretary of Veterans Affairs. Advisory includes an identification of the Committee members have expertise In accordance with directions in transaction and examination of relevant to the functions of the Section 3221(c) of the Railroad procurement files, employee records, Committee and are appointed by the Retirement Tax Act (26 U.S.C., Section and/or information from other sources President from non-Federal sectors. 3221(c)), the Railroad Retirement Board from which verification of identity and Tentative Agenda has determined that the excise tax compliance with postal procurement imposed by such Section 3221(c) on policy can be made. Where review Tuesday, April 16, 1996 every employer, with respect to having indicates potential misconduct, case 9:20 a.m.—Call to order and opening individuals in his employ, for each files may be established within the remarks. work-hour for which compensation is parameters of USPS 080.010, Inspection 9:30 a.m.—Public comment. paid by such employer for services Requirements—Investigative File 10:30 a.m.—Break. rendered to him during the quarter System (last published in its entirety in 10:50 a.m.—Public comment (cont.). beginning April 1, 1996, shall be at the the Federal Register on March 20, 1991 12:00 p.m.—Lunch. rate of 34 cents. 9738 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices

In accordance with directions in could result in quotation discrepancies, York Stock Exchange, Inc. (‘‘NYSE’’). Section 15(a) of the Railroad Retirement resulting in detrimental fluctuations of The Securities commenced trading on Act of 1974, the Railroad Retirement the Company’s securities. Price the NYSE at the opening of business on Board has determined that for the discrepancies and other market January 31, 1996 and concurrently quarter beginning April 1, 1996, 34.2 inefficiencies could result in arbitrage therewith the Securities were percent of the taxes collected under trading which could be detrimental to suspended from trading on the Amex. Sections 3211(b) and 3221(c) of the the Company’s stockholders. In making the decision to withdraw Railroad Retirement Tax Act shall be Additionally, the Company is subject to the Securities from listing on the Amex, credited to the Railroad Retirement fees assessed by both the Exchange and the Company considered the direct and Account and 65.8 percent of the taxes the NASD and believes that the interests indirect costs and expenses attendant collected under such Sections 3211(b) of its stockholders are best served by with maintaining the dual listing of the and 3221(c) plus 100 percent of the withdrawal from listing and registration securities on the NYSE and on the taxes collected under Section 3221(d) of on the Exchange in order to avoid Amex. The Company does not see any the Railroad Retirement Tax Act shall be duplicate fees. The Company further particular advantage in the dual trading credited to the Railroad Retirement believes that listing on the Nasdaq/NMS of the Securities and believes that dual Supplemental Account. will enable current shareholders to listing would fragment the market for facilitate trades in the Company’s the Securities. Dated: March 1, 1996. securities in the most cost-effective Any interested person may, on or By Authority of the Board. manner. before March 26, 1996, submit by letter Beatrice Ezerski, Any interested person may, on or to the Secretary of the Securities and Secretary to the Board. before March 26, 1996, submit by letter Exchange Commission, 450 Fifth Street [FR Doc. 96–5603 Filed 3–8–96; 8:45 am] to the Secretary of the Securities and NW., Washington, D.C. 20549, facts BILLING CODE 7905±01±M Exchange Commission, 450 Fifth Street bearing upon whether the application NW., Washington, DC 20549, facts has been made in accordance with the bearing upon whether the application rules of the exchanges and what terms, SECURITIES AND EXCHANGE has been made in accordance with the if any, should be imposed by the COMMISSION rules of the exchanges and what terms, Commission for the protection of if any, should be imposed by the investors. The Commission, based on Issuer Delisting; Notice of Application Commission for the protection of the information submitted to it, will to Withdraw from Listing and investors. The Commission, based on issue an order granting the application Registration; (Mobile Mini, Inc., the information submitted to it, will after the date mentioned above, unless Common Stock, $.01 Par Value; issue an order granting the application the Commission determines to order a Warrants) File No. 1±12804 after the date mentioned above, unless hearing on the matter. the Commission determines to order a For the Commission, by the Division of March 5, 1996. hearing on the matter. Market Regulation, pursuant to delegated Mobile Mini, Inc. (‘‘Company’’) has For the Commission, by the Division of authority. filed an application with the Securities Market Regulation, pursuant to delegated Jonathan G. Katz, and Exchange Commission authority. Secretary, (‘‘Commission’’), pursuant to Section Jonathan G. Katz, 12(d) of the Securities Exchange Act of [FR Doc. 96–5686 Filed 3–8–96; 8:45 am] Secretary. 1934 (‘‘Act’’) and Rule 12d2–2(d) BILLING CODE 8010±01±M promulgated thereunder, to withdraw [FR Doc. 96–5685 Filed 3–8–96; 8:45 am] BILLING CODE 5010±01±M the above specified securities Issuer Delisting; Notice of Application (‘‘Securities’’) from listing and To Withdraw From Listing and registration on the Pacific Stock Issuer Delisting; Notice of Application Registration; (Voice Control Systems, Exchange Incorporated (‘‘PSE’’). To Withdraw From Listing and Inc., Common Stock, $.01 Par Value) The reasons alleged in the application Registration; (Simula, Inc., Common File No. 1±1±11189 for withdrawing the Securities from Stock, $.01 Par Value; 12% Senior listing and registration include the Subordinated Notes (Series 1993) Due March 5, 1996. following: 1998) File No. 1±12410 Voice Control Systems Inc. According to the Company, the (‘‘Company’’) has filed an application application for listing on Nasdaq as a March 5, 1996. with the Securities and Exchange National Market Security (‘‘Nasdaq/ Simula, Inc. (‘‘Company’’) has filed an Commission (‘‘Commission’’), pursuant NMS’’) was approved by the National application with the Securities and to Section 12(d) of the Securities Association of Securities Dealers Exchange Commission (‘‘Commission’’), Exchange Act of 1934 (‘‘Act’’) and Rule (‘‘NASD’’) and the Company is now pursuant to Section 12(d) of the 12d2–2(d) promulgated thereunder, to listed on the Nasdaq/NMS. Listing on Securities Exchange Act of 1934 (‘‘Act’’) withdraw the above specified security the Nasdaq/NMS allows market makers and Rule 12d2–2(d) promulgated (‘‘Security’’) from listing and in the Company’s Securities to thereunder, to withdraw the above registration on the Emerging Company instantaneously change the bid and ask specified securities (‘‘Securities’’) from Marketplace of the American Stock quotations of the Company’s Securities listing and registration on the American Exchange, Inc. (‘‘Amex’’). while the market is open, provided that Stock Exchange, Inc. (‘‘Amex’’). The reasons alleged in the application they comply with rules promulgated by The reasons alleged in the application for withdrawing the Security from the NASD. There are currently 19 for withdrawing the Securities from listing and registration include the market makers on the Nasdaq/NMS listing and registration include the following: providing a market in the Company’s following: According to the Company, the Board Securities. According to the Company, in of Directors of the Company (‘‘Board’’) The Company believes that listing on addition to being listed on the Amex, unanimously approved resolutions on both the Nasdaq/NMS and the Exchange the Securities are listed on the New October 4, 1995, to withdraw the Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices 9739

Security from listing on the Exchange [Release No. 34±36918; International Series However, in granting access and and, instead, list the Security on the Release No. 942; File No. SR±NASD±95± participation to non-member clearing Nasdaq as a National Market Security 49] organizations the NASD was concerned (‘‘Nasdaq/NMS’’). The decision of the Self-Regulatory Organizations; about its ability to regulate individual Board followed a lengthy study of the National Association of Securities non-member broker/dealers that enter matter, and was based upon the belief Dealers, Inc.; Order Approving into transactions with NASD members. that listing of the Security on Nasdaq Proposed Rule Change Granting the Accordingly, the NASD determined to will be more beneficial to the Company Canadian Depository for Securities permit non-member participation only and its shareholders than the present Access to the Automated Confirmation for those organizations that would listing on the Exchange because: Transaction Service guarantee the trades submitted by their members. 1. The Committee believes such a March 4, 1996. listing will result in additional market On October 12, 1995, the National Recently, the NASD received another makers in the Company’s security. This Association of Securities Dealers, Inc. request through the International should in turn result in additional (‘‘NASD’’) filed with the Securities and Securities Clearing Corporation to allow research reports on the Company and Exchange Commission (‘‘Commission’’) member broker-dealers of CDS to enhanced interest in the Company’s a proposed rule change (File No. SR– participate in ACT. After reviewing the stock; NASD–95–49) under section 19(b)(1) of financial status of CDS, the NASD 2. The Exchange has recently the Securities Exchange Act of 1934 determined that CDS is in a financial discontinued the Emerging Company (‘‘Act’’) 1 to allow access by The position to guarantee the performance of Marketplace on which the Company is Canadian Depository for Securities its members. In addition, CDS is a listed. Accordingly, issuers of the type (‘‘CDS’’) to the NASD’s automated member of the National Securities and size of the Company will not be confirmation transaction service Clearing Corporation (‘‘NSCC’’) and a listed on the Amex in the future and (‘‘ACT’’). Notice of the proposal was Special Representative under NSCC’s ultimately the Company will be out of published in the Federal Register on rules.5 Furthermore, CDS members December 12, 1995.2 No comment place; submit trade data through NSCC’s letters were received. For the reasons Correspondent Clearing Service 6 as 3. The Company’s major publicly-held discussed below, the Commission is required by ACT Rules.7 competitors and customers are listed on approving the proposed rule change. the Nasdaq/NMS, so the Company I. Description 20785 [File No. SR–NASD–94–55] (order approving believes that the investment community proposed rule change relating to the access of will expect to find an issuer such as the The NASD is amending its ‘‘Rules of WCCC and its members to ACT). Company listed on the Nasdaq/NMS. Practice and Procedure for the The NASD granted access and participation to Failure to meet these expectations will Automated Confirmation Transaction WCCC in part because at that time WCCC was a Service’’ (‘‘ACT Rules’’) to permit CDS participant of the Midwest Clearing Corporation diminish interest in the Company’s (‘‘MCC’’). WCC also demonstrated sufficient stock. to enter trades in NASD’s ACT Service.3 In 1992, the NASD approved an financial strength to support the trade guarantee Any interested person may, on or made on behalf of its members. Recently, Stock amendment to its ACT Rules to permit Clearing Corporation of Philadelphia (‘‘SCCP’’) before March 26, 1996, submit by letter certain non-member clearing replaced MCC as the clearing agency at which to the Secretary of the Securities and organizations and their member broker/ WCCC is a member. SCCP is a clearing agency Exchange Commission, 450 Fifth Street, dealers to have access to and participate registered with the Commission under section 17A NW., Washington, DC 20549, facts of the Act. Furthermore, WCCC continues to in ACT. The rule change was adopted guarantee the trades of its members and to provide bearing upon whether the application with the West Canada Clearing financial resources to support the trade guarantee. has been made in accordance with the Corporation (‘‘WCCC’’) in mind, and For a description of the SCCP/WCCC arrangement, rules of the exchanges and what terms, WCCC was the first non-member refer to a letter from William W. Uchimoto, General if any, should be imposed by the clearing organization to be granted Counsel, Stock Clearing Corporation of 4 Philadelphia, to Jonathan Kallman, Associate Commission for the protection of access to and participation in ACT. Director, Division of Market Regulation, investors. The Commission, based on Commission (January 24, 1996), requesting the the information submitted to it, will 1 15 U.S.C. § 78s(b)(1) (1988). Commission take a no-action position regarding the issue an order granting the application 2 Securities Exchange Act Release No. 36552 clearing agency registration requirements under (December 5, 1995), 60 FR 63746 [File No. SR– section 17A of the Act as they pertain to WCCC. after the date mentioned above, unless NASD–95–49]. 5 Generally, a Special Representative is a member the Commission determines to order a 3 Generally, ACT facilitates comparison and or a registered clearing agency that has been hearing on the matter. clearing of interdealer over-the-counter equity authorized by one or more other persons to act on trades by requiring input of trade details within their behalf at NSCC. For a complete description of For the Commission, by the Division of specific time frames, by comparing the trade details, Special Representative, refer to NSCC Rule 39, Market Regulation, pursuant to delegated and by submitting matched, locked-in trades for ‘‘Special Representative/Index Receipt Agent.’’ clearing. For a complete description of ACT, refer authority. 6 Under the Correspondent Clearing Service, to Securities Exchange Act Release Nos. 27229 NSCC members functioning as Special Jonathan G. Katz, (September 8, 1989), 54 FR 38484 [File No. SR– Representatives (e.g., CDS) submit transaction data Secretary. NASD–89–25] (order partially approving proposed rule change to permit ACT to be used by self- on behalf of correspondents, which are NSCC [FR Doc. 96–5684 Filed 3–8–96; 8:45 am] clearing firms) and 28583 (October 26, 1990), 55 FR members or non-members of NSCC that are members of an interfaced clearing organization (e.g., BILLING CODE 8010±01±M 46120 [File No. SR–NASD–89–25] (order approving remainder of File SR–NASD–89–25 to permit ACT CDS member). For a complete description of to be used by introducing and correspondent NSCC’s Correspondent Clearing Service, refer to broker-dealers). NSCC Procedure IV., C. 4 The amendments to the ACT Rules allowing 7 ACT Rules require that a non-member clearing non-member clearing organizations access to and organization not be given access to ACT unless it participation in ACT and specifically approving (1) is a clearing agency registered under the Act, (2) WCCC participation were approved by the maintains membership in a registered clearing Commission on April 19, 1995. Securities Exchange agency, or (3) maintains an effective clearing Act Release No. 35625 (April 19, 1995), 60 FR arrangement with a registered clearing agency. 9740 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices

II. Discussion Advisory Committee (ITAC) Ad Hoc on Authority is soliciting public comments Section 15A(b)(6) 8 of the Act requires implementation of the Leland Initiative: on this proposed collection as provided that the rules of a national securities Africa Global Information Infrastructure by 5 CFR Section 1320.8(d)(1). Requests association be designed to promote just Gateway. The meeting is scheduled for for information, including copies of the and equitable principles of trade and to Wednesday, April 3, 10:00 a.m. to noon, information collection proposed and foster cooperation and coordination Loy Henderson Auditorium, Department supporting documentation, should be with persons engaged in regulating, of State, 2201 ‘‘C’’ Street NW., directed to the Acting Agency Clearance clearing, settling, and processing Washington, DC. Officer: Wilma H. McCauley, Tennessee information with respect to securities, The purpose of ITAC is to advise the Valley Authority, 1101 Market Street and in general, to protect investors and Department on policy, technical and (CST 13B), Chattanooga, TN 37402– the public interest. The Commission operations matters and to provide 2801; (423) 751–2523. believes the proposed rule change is strategic planning recommendations, Comments should be sent to the consistent with the NASD’s obligations with respect to international Acting Agency Clearance Officer no because it fosters cooperation and telecommunications and information later than May 10, 1996. coordination with persons engaged in issues. SUPPLEMENTARY INFORMATION: clearing and settling securities The purpose of the Ad Hoc Type of Request: Regular submission, transactions by streamlining and Committee is to advise the U.S. proposal to extend without revision a improving the process by which trades Government on the Leland Initiative; a currently approved collection of between NASD and CDS members are multi-year program to support full information (OMB control number compared. The Commission also Internet connectivity in up to twenty 3316–0016). believes the rule change is consistent African nations. The agenda for the Title of Information Collection: with the Act because it permits CDS meeting will cover how the U.S. plans Farmer Questionnaire-Vicinity of broker/dealer members to participate in to implement the Leland Initiative. We Nuclear Power Plants. will address the three components of Frequency of Use: On occasion. ACT under an agreement by CDS to Type of Affected Public: Individuals guarantee its member transactions. Such the Initiative: policies, infrastructure and approaches to assure wide use of or households, and farms. participation should promote the public Small Business or Organizations interest by expanding the universe of the Internet. Questions regarding the agenda may be directed to John Mack, Affected: No. Canadian Brokers executing trades with Federal Budget Functional Category NASD members in the U.S. Department of State, at 202–647–5778. Members of the general public may Code: 271. Furthermore, the CDS guarantee of its Estimated Number of Annual attend the meetings and join in the member transactions should promote Responses: 1,200. investor protection. discussions, subject to the instructions Estimated Total Annual Burden of the chair. In this regard, entry to the III. Conclusion Hours: 600. building is controlled. If you wish to Estimated Average Burden Hours Per The Commission finds that the attend, please send a fax to 202–647– Response: .5. proposal is consistent with the 0158 not later than 1 week before the Need For and Use of Information: requirements of the Act and particularly scheduled meeting. This survey is used to locate, for with Section 15A(b)(6) of the Act and One of the following valid photo ID’s monitoring purposes, rural residents, the rules and regulations thereunder. will be required for admittance: U.S. home gardens, and milk animals within It is therefore ordered, pursuant to driver’s license with picture, U.S. a five mile radius of a nuclear power Section 19(b)(2) of the Act, that the passport, U.S. government ID (company plant. The monitoring program is a proposed rule change (File No. SR– ID’s are no longer accepted by mandatory requirement of the Nuclear NASD–95–49) be, and hereby is, Diplomatic Security). Enter from the Regulatory Commission set out in the approved. ‘‘C’’ Street Main Lobby. technical specifications when the plants For the Commission by the Division of Dated: February 29, 1996. were licensed. Market Regulation, pursuant to delegated Richard E. Shrum, William S. Moore, 9 authority. ITAC Executive Director. Senior Manager, Administrative Services. Margaret H. McFarland, [FR Doc. 96–5604 Filed 3–8–96; 8:45 am] [FR Doc. 96–5602 Filed 3–8–96; 8:45 am] Deputy Secretary. BILLING CODE 4710±45±M BILLING CODE 8120±08±P [FR Doc. 96–5608 Filed 3–8–96; 8:45 am] BILLING CODE 8010±01±M TENNESSEE VALLEY AUTHORITY DEPARTMENT OF TRANSPORTATION DEPARTMENT OF STATE Paperwork Reduction Act of 1995, as Federal Railroad Administration [Public Notice No. 2352] Amended by P.L. 104±13; Proposed [Docket No. RSAC±96±1] Collection; Comment Request United States International Railroad Safety Advisory Committee; AGENCY: Tennessee Valley Authority. Telecommunication Advisory Establishment Committee (ITAC) Ad Hoc on the ACTION: Proposed collection; comment request. AGENCY: Federal Railroad Leland Initiative: Africa GII Gateway; Administration (FRA), Department of Meeting Notice SUMMARY: The proposed information Transportation (DOT). The Department of State announces collection described below will be ACTION: Notice of Railroad Safety the first meeting of the United States submitted to the Office of Management Advisory Committee (‘‘RSAC’’) International Telecommunications and Budget (OMB) for review, as Establishment. required by the Paperwork Reduction 8 15 U.S.C. § 78o-3(b)(6) (1988). Act of 1995 (44 U.S.C. Chapter 35, as SUMMARY: As required by Section 9(a)(2) 9 17 CFR 200.30–3(a)(12) (1994). amended). The Tennessee Valley of the Federal Advisory Committee Act Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices 9741

(FACA), 5 U.S.C. App. 2 (1988) and 41 Committee Composition 7 of Title 49, Code of Federal C.F.R. Part 101–6, section 101–6, Regulations. 1015(a), the Federal Railroad The Administrator is the sponsor of Jolene M. Molitoris, the Committee and will designate the Administration (FRA) is giving notice of Administrator. the establishment of an advisory members of the Committee. The Administrator’s representative (the [FR Doc. 96–5505 Filed 3–8–96; 8:45 am] committee to address railroad safety BILLING CODE 4910±06±P issues. This committee will provide Associate Administrator for Safety or recommendations and comments and that person’s delegate) shall serve as Chairperson for the Committee. The will be known as the ‘‘Railroad Safety National Highway Traffic Safety Committee is authorized to constitute an Advisory Committee’’(RSAC). Administration Executive Committee and such DATES: On or about April 1, 1996, FRA subcommittees as the Administrator and International Harmonization of Safety will file the Committee’s charter with the Committee find necessary to Standards; Calendar of Meetings the General Services Administration, discharge its responsibilities. AGENCY: National Highway Traffic the Library of Congress, and all The Committee will have sufficient Safety Administration (NHTSA), DOT. Congressional committees with diversity to ensure the requisite range of jurisdiction over FRA, as required by views and expertise necessary to ACTION: Notice of meetings. section 9(c) of FACA. discharge its responsibilities. The SUMMARY: The National Highway Traffic FOR FURTHER INFORMATION CONTACT: membership on the Committee will be Safety Administration (NHTSA) will Grady Cothen, Deputy Associate fairly balanced with points of view continue its participation during this Administrator for Safety Standards representative of those interested in year in the international meetings to Program Development, Federal Railroad railroad issues, including those of harmonize U.S. and foreign motor Administration, 400 7th Street, SW., railroad owners, manufacturers, labor vehicle safety standards. These meetings Washington, DC 20590, 202–366–0897, groups, state government groups, and will be conducted by the Working Party or Lisa Levine, Office of Chief Counsel, public interest associations. In order to on the Construction of Vehicles (WP29) Federal Railroad Administration, 400 foster harmonization of railroad safety under the Inland Transport Committee standards at their inception, the 7th Street, S.W., Washington, D.C. of the United Nations’ Economic agencies with regulatory responsibility 20590, 202–366–0621. Commission for Europe (ECE), and by for railroad safety in both Canada and the six Meetings of Experts (formerly SUPPLEMENTARY INFORMATION: FRA has Mexico will be extended Associate called Groups of Rapporteurs) of WP29. concluded that the continued use of ad Memberships that will not include any The NHTSA currently represents the hoc collaborative procedures for voting rights. United States in all of the Meetings of appropriate rulemakings is not the most Meetings and Recordkeeping Experts except those on Pollution and effective means of accomplishing our on Noise. goal of achieving a more consensual Timely notice of committee and DATES: For a list of scheduled meetings, regulatory program. Instead, FRA subcommittee meetings will be see the Supplementary Information believes that establishing an advisory published in the Federal Register at section of this Notice. Inquiries or committee to address railroad safety least 15 days before the meeting, except comments related to specific meetings issues will provide the best opportunity in exceptional circumstances, where the should be made at least two weeks for creating a consensual regulatory reasons for giving less than 15 days preceding that meeting. program in order to inform the notice will be explained in the Federal FOR FURTHER INFORMATION CONTACT: Administrator in the conduct of her Register notice. Each meeting of the Francis J. Turpin, Office of International statutory responsibilities. The formation Committee shall be open to the public, Harmonization (NOA–05), National and use of the Railroad Safety Advisory except as authorized by Section 10(d) of Highway Traffic Safety Administration, Committee are determined to be in the FACA, as implemented by 41 C.F.R. Part 400 Seventh Street, SW., Washington, public interest in connection with the 101–6. Persons wishing to appear before DC 20590 (202–366–2114). performance of duties imposed on the the Committee will have to make prior SUPPLEMENTARY INFORMATION: This Secretary, and delegated to the Federal arrangements to do so. Written materials calendar consists of those ECE meetings Railroad Administrator, by the federal may be submitted to the Committee at currently scheduled. It is published for railroad safety statutes (49 U.S.C. any time. Each meeting will be held at information and planning purposes and 20101–21311). a reasonable time, in a place reasonably the meeting dates and places are subject The Committee will provide a accessible to the public, and in a room to change. NHTSA attendance at these continuing forum for advice and large enough to accommodate the meetings will be affected by agenda recommendations on railroad safety Committee members, staff, and content, priorities and availability of issues. As all interested segments of the interested members of the public. travel funds. railroad industry will be represented on Subject to the Freedom of Information March 11, 1996 the Committee, all of FRA’s customers Act, 5 U.S.C. 552, the records, reports, Administrative Committee for the will have a more direct role in shaping transcripts, minutes and other Coordination of Work of WP29 + FRA’s regulatory program. The documents that are made available to, or (AC.2), Sixtieth Session—Geneva, Committee will allow management, prepared for or by, the Committee will Switzerland. labor, FRA and other interested parties be available for public inspection and March 12–15, 1996 cooperatively to address safety problems copying at the Office of Chief Counsel, Inland Transport Committee, Working by identifying the best solutions based Federal Railroad Administration, 400 Party on the Construction of on agreed-upon facts, and, where 7th Street, SW., Washington, DC 20594. Vehicles (WP29), One Hundred- regulation appears necessary, identify Fees will be charged for information and-Eighth Session—Geneva, regulatory options to implement these furnished to the public in accordance Switzerland. solutions. with the fee schedule published in Part April 1–4, 1996 9742 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices

Meeting of Experts on Lighting and February 26–29, 1996 DATES: The exemption will be effective Light-Signalling (GRE), Thirty-Sixth Meeting of Experts on Noise, (GRB), April 10, 1996. Petitions to stay must be Session—Geneva, Switzerland. Twenty-Fourth Session—Geneva, filed by March 26, 1996 and petitions to April 22–26, 1996 Switzerland. reopen must be filed by April 5, 1996. Meeting of Experts on General Safety Issued on: March 6, 1996. ADDRESSES: An original and 10 copies of Provisions (GRSG), Seventieth Francis J. Turpin, all pleadings, referring to Finance Session—Geneva, Switzerland. Docket No. 32506, must be filed with May 6–10, 1996 Director, Office of International Harmonization. the Office of the Secretary, Case Control Meeting of Experts on Passive Safety Branch, Surface Transportation Board, (GRSP), Nineteenth Session— [FR Doc. 96–5669 Filed 3–8–96; 8:45 am] BILLING CODE 4910±59±P 1201 Constitution Avenue NW., Geneva, Switzerland. Washington, DC 20423. In addition, a June 11–14, 1996 copy of all pleadings must be served on Meeting of Experts on Pollution and Surface Transportation Board 1 Mark H. Sidman, WEINER, BRODSKY, Energy (GRPE), Thirty-Second SIDMAN & KIDER, P.C., Suite 800, 1350 Session—Geneva, Switzerland. [Finance Docket No. 32506] New York Avenue NW., Washington, June 24, 1996 DC 20005. Administrative Committee for the Ellis & Eastern CompanyÐAcquisition, Coordination of Work of WP29 + Operation, Joint Relocation Project, FOR FURTHER INFORMATION CONTACT: (AC.2), Sixty-First Session— and Trackage Rights ExemptionsÐ Joseph H. Dettmar, (202) 927–5268. Geneva, Switzerland. Brandon-Ellis, SD [TDD for the hearing-impaired: (202) June 25–28, 1996 927–5721.] AGENCY: Surface Transportation Board. Inland Transport Committee, Working SUPPLEMENTARY INFORMATION: ACTION: Notice of exemption. Party on the Construction of Additional information is contained in Vehicles (WP29), One Hundred- SUMMARY: Under 49 U.S.C. 10505, the the Board’s decision. To purchase a and-Ninth Session—Geneva, Board exempts from the prior approval copy of the decision, write to, call, or Switzerland. requirements of (a) 49 U.S.C. 10901 the pick up in person from DC News & Data, September 16–18, 1996 acquisition and operation by Ellis & Inc., Room 2229, Surface Transportation Meeting of Experts on Brakes and Eastern Company of a 16.5-mile rail line Board, Washington, DC 20423. Running Gear (GRRF),Fortieth between milepost 49.0, at or near Telephone: (202) 289–4357/4359. Session—Geneva, Switzerland. Brandon, and milepost 65.5, at or near [Assistance for the hearing-impaired is September 19–20, 1996 Ellis, in Minnehaha County, SD, and (b) available through TDD services at (202) Meeting of Experts on Noise, (GRB), 49 U.S.C. 11343–45, (i) the sale by Ellis 927–5721.] Twenty-Fifth Session—Geneva, & Eastern Company to Burlington Decided: February 26, 1996. Switzerland. Northern Railroad Company of a By the Board, Chairman Morgan, Vice October 7–10, 1996 switching yard and the adjacent 2.0- Chairman Simmons, and Commissioner Meeting of Experts on General Safety mile line between mileposts 56.6 and Owen. Provisions (GRSG), Seventy-First 58.6, all in Sioux Falls, SD, and the Vernon A. Williams, Session—Geneva, Switzerland. grant back of trackage rights over that Secretary. October 28–November 1, 1996 line, (ii) the grant of additional trackage Meeting of Experts on Lighting and [FR Doc. 96–5696 Filed 3–8–96; 8:45 am] rights by Burlington Northern Railroad BILLING CODE 4915±00±P Light-Signalling (GRE), Thirty- Company to Ellis & Eastern Company Seventh Session—Geneva, over a 2.0-mile line between mileposts Switzerland. 54.6 and 56.6, also in Sioux Falls, and Surface Transportation Board 1 November 11, 1996 (iii) a joint relocation project involving Administrative Committee for the the respective lines of Ellis & Eastern [STB Finance Docket No. 32754] Coordination of Work of WP29 + Company and Burlington Northern Livonia, Avon & Lakeville Railroad (AC.2), Sixty-Second Session— Railroad Company between mileposts CorporationÐAcquisition and Geneva, Switzerland. 55.6 and 56.6, also in Sioux Falls. The November 12–15, 1996 Operation ExemptionÐLine of exemptions for those transactions Inland Transport Committee, Working Consolidated Rail Corporation requiring prior approval under 49 U.S.C. Party on the Construction of 11343–45 are subject to appropriate Vehicles (WP29), One Hundred- AGENCY: Surface Transportation Board, labor protective conditions. and-Tenth Session—Geneva, DOT. Switzerland. ACTION: Notice of exemption. 1 The ICC Termination Act of 1995, Pub. L. No. December 2–5, 1996 104–88, 109 Stat. 803 (the Act), which was enacted SUMMARY: The Board, under 49 U.S.C. Meeting of Experts on Passive Safety on December 29, 1995, and took effect on January 10502, exempts from the prior approval (GRSP), Twentieth Session— 1, 1996, abolished the Interstate Commerce requirements of 49 U.S.C. 10902 the Geneva, Switzerland. A listing of Commission (ICC) and transferred certain functions and proceedings to the Surface Transportation acquisition and operation of an 18.49- the meetings that were scheduled Board (Board). Section 204(b)(1) of the Act mile line of railroad near Rochester, NY, and have taken place is presented provides, in general, that proceedings pending by the Livonia, Avon & Lakeville below: before the ICC on the effective date of that January 16–19, 1996 legislation shall be decided under the law in effect prior to January 1, 1996, insofar as they involve 1 The ICC Termination Act of 1995, Pub. L. No. Meeting of Experts on Pollution and functions retained by the Act. This notice relates to 104–88, 109 Stat. 803, which was enacted on Energy (GRPE), Thirty-First a proceeding that was pending with the ICC prior December 29, 1995, and took effect on January 1, Session—Geneva, Switzerland. to January 1, 1996, and to functions that are subject 1996, abolished the Interstate Commerce February 5–9, 1996 to Board jurisdiction pursuant to 49 U.S.C. 10901 Commission (ICC) and transferred certain functions and 49 U.S.C. 11323. Therefore, this notice applies and proceedings to the Surface Transportation Meeting of Experts on Brakes and the law in effect prior to the Act, and citations are Board (Board). This notice relates to functions that Running Gear (GRRF), Thirty-Ninth to the former sections of the statute, unless are subject to Board jurisdiction pursuant to 49 Session—Geneva, Switzerland. otherwise indicated. U.S.C. 10902. Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices 9743

Railroad Corporation, a Class III of railroad known as the Englewood for public use conditions under 49 CFR railroad. Subdivision from milepost 136 at or 1152.28 must be filed by April 1, 1996, DATES: The exemption will be effective near Protection to milepost 166 plus with: Office of the Secretary, Case March 31, 1996. Petitions to stay must 1846 feet at or near Englewood, in Clark Control Branch, Surface Transportation be filed by March 19, 1996. Petitions to and Comanche Counties, KS.3 Board, 1201 Constitution Avenue, NW., reopen must be filed by March 25, 1996. CKR has certified that: (1) no local Washington, DC 20423. traffic has moved over the line for at ADDRESSES: Send pleadings, referring to A copy of any petition filed with the least 2 years; (2) any overhead traffic has STB Finance Docket No. 32754 to: (1) Board should be sent to applicant’s been rerouted over other lines; (3) no representative: Michael J. Ogborn, Surface Transportation Board, Office of formal complaint filed by a user of rail the Secretary, Case Control Branch, Manager, Central Kansas Railway, service on the line (or by a state or local Limited Liability Company, 252 Clayton 1201 Constitution Avenue NW., government entity acting on behalf of Washington, DC 20423; and (2) Street, 4th Floor, Denver, CO 80206. such user) regarding cessation of service If the verified notice contains false or petitioner’s representative: Kevin M. over the line either is pending with the Sheys, Oppenheimer Wolff & Donnelly, misleading information, the exemption Board or with any U.S. District Court or is void ab initio. 1020 Nineteenth Street NW., Suite 400, has been decided in favor of Washington, DC 20036. CKR has filed an environmental complainant within the 2-year period; report which addresses the FOR FURTHER INFORMATION CONTACT: and (4) the requirements at 49 CFR abandonments effects, if any, on the Joseph H. Dettmar, (202) 927–5660. 1105.7 (environmental reports), 49 CFR environment and historic resources. The [TDD for the hearing impaired: (202) 1105.8 (historic reports), 49 CFR Section of Environmental Analysis 927–5721.] 1105.11 (transmittal letter), 49 CFR (SEA) will issue an environmental SUPPLEMENTARY INFORMATION: 1105.12 (newspaper publication), and assessment (EA) by March 15, 1996. Additional information is contained in 49 CFR 1152.50(d)(1) (notice to Interested persons may obtain a copy of the Board’s decision. To purchase a governmental agencies) have been met. the EA by writing to SEA (Room 3219, copy of the full decision, write to, call, As a condition to use of this Surface Transportation Board, or pick up in person from: DC News & exemption, any employee adversely Washington, DC 20423) or by calling Data, Inc., 1201 Constitution Avenue affected by the abandonment shall be Elaine Kaiser, Chief of SEA, at (202) NW., Room 2229, Washington, DC protected under Oregon Short Line R. 927–6248. Comments on environmental 20423. Telephone: (202) 289–4357/ Co.—Abandonment—Goshen, 360 I.C.C. and historic preservation matters must 4359. [Assistance for the hearing 91 (1979). To address whether this be filed within 15 days after the EA impaired is available through TDD condition adequately protects affected becomes available to the public. services (202) 927–5721.] employees, a petition for partial Environmental, historic preservation, revocation under 49 U.S.C. 10502(d) public use, or trail use/rail banking Decided: March 5, 1996. must be filed. conditions will be imposed, where By the Board, Chairman Morgan, Vice Provided no formal expression of Chairman Simmons, and Commissioner intent to file an offer of financial appropriate, in a subsequent decision. Owen. assistance (OFA) has been received, this Decided: February 29, 1996. Vernon A. Williams, exemption will be effective on April 10, By the Board, David M. Konschnik, Secretary. 1996, unless stayed pending Director, Office of Proceedings. [FR Doc. 96–5693 Filed 3–8–96; 8:45 am] reconsideration. Petitions to stay that do Vernon A. Williams, BILLING CODE 4915±00±P not involve environmental issues,4 Secretary. formal expressions of intent to file an [FR Doc. 96–5695 Filed 3–8–96; 8:45 am] 5 OFA under 49 CFR 1152.27(c)(2), and BILLING CODE 4915±00±P [STB Docket No. AB±406 (Sub-No. 5X)] trail use/rail banking requests under 49 6 Central Kansas Railway, Limited CFR 1152.29 must be filed by March [STB Docket No. AB±459 (Sub-No. 1X)] Liability CompanyÐAbandonment 21, 1996. Petitions to reopen or requests ExemptionÐin Clark and Comanche 3 Pursuant to 49 CFR 1152.50(d)(2), the railroad Central Railroad Company of IndianaÐ Counties, KS must file a verified notice with the Board at least Abandonment ExemptionÐin 50 days before the abandonment or discontinuance Dearborn County, IN Central Kansas Railway, Limited is to be consummated. The applicant in its verified 2 Liability Company (CKR) has filed a notice, indicated a proposed consummation date of Central Railroad Company of Indiana notice of exemption under 49 CFR 1152 April 8, 1996. Because the verified notice was not (CIND) filed a notice of exemption Subpart F—Exempt Abandonments to filed until February 20, 1996, however, consummation should have not been proposed to under 49 CFR 1152 Subpart F—Exempt abandon a 30.3-mile portion of its line take place prior to April 10, 1996. Applicant’s Abandonments to abandon representative has been contacted and informed of approximately 2.3-miles of its rail line 1 The ICC Termination Act of 1995, Pub. L. No. the correct consummation date. from milepost 22.4 near Lawrenceburg 104–88, 109 Stat. 803 (the Act), which was enacted 4 The Board will grant a stay if an informed on December 29, 1995, and took effect on January decision on environmental issues (whether raised Junction to milepost 24.7 near Dearborn 1, 1996, abolished the Interstate Commerce by a party or by the Board’s Section of Junction, in Dearborn County, IN. Commission (ICC) and transferred certain functions Environmental Analysis in its independent CIND has certified that: (1) no local to the Surface Transportation Board (Board). This investigation) cannot be made before the traffic has moved over the line for at notice relates to functions that are subject to Board exemption’s effective date. See Exemption of Out- jurisdiction pursuant to 49 U.S.C. 10903. of-Service Rail Lines, 5 I.C.C.2d 377 (1989). Any least 2 years; (2) arrangements have 2 CKR is a subsidiary of OmniTRAX, Inc., a request for a stay should be filed as soon as possible noncarrier holding company. OmniTRAX was so that the Board may take appropriate action before 1 The ICC Termination Act of 1995, Pub. L. No. authorized to control CKR, pursuant to the notice the exemption’s effective date. 104–88, 109 Stat. 803 (the Act), which was enacted of exemption in Patrick D. Broe, The Broe 5 See Exempt. of Rail Abandonment—Offers of on December 29, 1995, and took effect on January Companies, The Great Western Railway Company, Finan. Assist., 4 I.C.C.2d 164 (1987). 1, 1996, abolished the Interstate Commerce Railco, Inc., Chicago West Pullman Transportation 6 The Board will accept late-filed trail use Commission (ICC) and transferred certain functions Corp., et al.—Corporate Family Reorganization requests so long as the abandonment has not been to the Surface Transportation Board (Board). This Exemption, Finance Docket No. 32531 (ICC served consummated and the abandoning railroad is notice relates to functions that are subject to Board July 12, 1994). willing to negotiate an agreement. jurisdiction pursuant to 49 U.S.C. 10903. 9744 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices been made to reroute overhead traffic CIND has filed an environmental The agenda will consist of the review over other lines; (3) no formal complaint report which addresses the and evaluation of the acceptability of filed by a user of rail service on the line abandonments effects, if any, on the fair market value appraisals of works of (or by a state or local government entity environment and historic resources. The art involved in federal income, estate, or acting on behalf of such user) regarding Section of Environmental Analysis gift tax returns. This will involve the cessation of service over the line either (SEA) will issue an environmental discussion of material in individual tax is pending with the Board or with any assessment (EA) by March 15, 1996. returns made confidential by the U.S. District Court or has been decided Interested persons may obtain a copy of provisions of section 6103 of Title 26 of in favor of complainant within the 2- the EA by writing to SEA (Room 3219, the United States Code. year period; and (4) the requirements at Surface Transportation Board, A determination as required by 49 CFR 1105.7 (environmental reports), Washington, DC 20423) or by calling section 10(d) of the Federal Advisory 49 CFR 1105.8 (historic reports), 49 CFR Elaine Kaiser, Chief of SEA, at (202) Committee Act has been made that this 1105.11 (transmittal letter), 49 CFR 927–6248. Comments on environmental meeting is concerned with matters listed 1105.12 (newspaper publication), and and historic preservation matters must in section 552b(c) (3), (4), (6), and (7) of 49 CFR 1152.50(d)(1) (notice to be filed within 15 days after the EA Title 5 of the United States Code, and governmental agencies) have been met. becomes available to the public. that the meeting will not be open to the As a condition to use of this Environmental, historic preservation, public. exemption, any employee adversely public use, or trail use/rail banking affected by the abandonment shall be The Commissioner of Internal conditions will be imposed, where Revenue has determined that this protected under Oregon Short Line R. appropriate, in a subsequent decision. Co.—Abandonment—Goshen, 360 I.C.C. document is not a significant regulatory Decided: February 29, 1996. 91 (1979). To address whether this action as defined in Executive Order condition adequately protects affected By the Board, David M. Konschnik, 12866 and that a regulatory impact Director, Office of Proceedings. employees, a petition for partial analysis therefore is not required. revocation under 49 U.S.C. 10502(d) Vernon A. Williams, Neither does this document constitute a must be filed. Secretary. rule subject to the Regulatory Flexibility Provided no formal expression of [FR Doc. 96–5694 Filed 3–8–96; 8:45 am] Act (5 U.S.C. Chapter 6). intent to file an offer of financial BILLING CODE 4915±00±P This Notice is being published later assistance (OFA) has been received, this than 15 days before the date of the exemption will be effective on April 10, meeting. This agency has concluded 1996, unless stayed pending DEPARTMENT OF THE TREASURY that exceptional circumstances warrant reconsideration. Petitions to stay that do holding the meeting on March 20 due to not involve environmental issues,2 Internal Revenue Service scheduling conflicts of the members. formal expressions of intent to file an Margaret Milner Richardson, Art Advisory PanelÐNotice of Closed OFA under 49 CFR 1152.27(c)(2),3 and Commissioner of Internal Revenue. Meeting trail use/rail banking requests under 49 [FR Doc. 96–5743 Filed 3–8–96; 8:45 am] CFR 1152.29 4 must be filed by March AGENCY: Internal Revenue Service, BILLING CODE 4830±01±U 21, 1996. Petitions to reopen or requests Treasury. for public use conditions under 49 CFR ACTION: Notice of closed meeting of Art 1152.28 must be filed by April 1, 1996, Advisory Panel. with: Office of the Secretary, Case UNITED STATES ENRICHMENT Control Branch, Surface Transportation SUMMARY: Closed meeting of the Art CORPORATION Board, 1201 Constitution Avenue, NW., Advisory Panel will be held in Washington, DC 20423. Washington, DC. Sunshine Act Meeting A copy of any petition filed with the DATES: The meeting will be held March Board should be sent to applicant’s 20 and 21, 1996. AGENCY: United States Enrichment representative: Jo A. DeRoche, Esq., Corporation Board of Directors. ADDRESSES: The closed meeting of the Weiner, Brodsky, Sidman & Kider, P.C., Art Advisory Panel will be held on TIME AND DATE: 8:00 a.m., Tuesday, 1350 New York Ave., NW., Suite 800, March 20 and 21, 1996 in Room 118, March 12, 1996. Washington, DC 20005–4797. If the verified notice contains false or beginning at 9:30 a.m., Aerospace PLACE: USEC Corporate Headquarters, misleading information, the exemption Center Building, 901 D Street, SW., 6903 Rockledge Drive, Bethesda, is void ab initio. Washington, DC 20024. Maryland 20817. FOR FURTHER INFORMATION CONTACT: STATUS: The meeting will be closed to 2 Karen Carolan, C:AP:AS:4 901 D Street, The Board will grant a stay if an informed the public. decision on environmental issues (whether raised SW., Washington, DC 20024. Telephone by a party or by the Board’s Section of (202) 401–4128, (not a toll free number). MATTERS TO BE CONSIDERED: Environmental Analysis in its independent b investigation) cannot be made before the SUPPLEMENTARY INFORMATION: Notice is Review of commercial and exemption’s effective date. See Exemption of Out- hereby given pursuant to section financial issues of the Corporation. of-Service Rail Lines, 5 I.C.C.2d 377 (1989). Any 10(a)(2) of the Federal Advisory request for a stay should be filed as soon as possible CONTACT PERSON FOR MORE INFORMATION: so that the Board may take appropriate action before Committee Act, 5 U.S.C. App. (1988), Barbara Arnold, 301–564–3354. the exemption’s effective date. that a closed meeting of the Art Dated: March 6, 1996. 3 See Exempt. of Rail Abandonment—Offers of Advisory Panel will be held on March Finan. Assist., 4 I.C.C.2d 164 (1987). 20 and 21, 1996 in Room 118 beginning William H. Timbers, Jr., 4 The Board will accept late-filed trail use at 9:30 a.m., Aerospace Center Building, President and Chief Executive Officer. requests so long as the abandonment has not been consummated and the abandoning railroad is 901 D Street, SW., Washington, DC [FR Doc. 96–5810 Filed 3–7–96; 10:14 am] willing to negotiate an agreement. 20024. BILLING CODE 8720±01±M federal register March 11,1996 Monday Regulations; ProposedRule Coastal ZoneManagementProgram 15 CFRPart923,etal. Administration National OceanicandAtmospheric Commerce Department of Part II 9745 9746 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Proposed Rules

DEPARTMENT OF COMMERCE restore or enhance the resources of the eligible coastal states that do not yet Nation’s coasts. In all, 29 coastal states have approved programs, OCRM will National Oceanic and Atmospheric and territories have chosen to continue to provide necessary guidance, Administration participate in this program, and their and actual and timely notice of programs have received federal appropriate application procedures. In 15 CFR Parts 923, 926, 927, 928, 932, approval. Five states are currently particular, OCRM will continue to work 933 developing programs for federal with the 5 coastal states currently [Docket No. 960126015±6015±01] approval. Many of the regulations developing programs in order to ensure promulgated when the program began that those programs meet the criteria for RIN 0648±AI43 are no longer needed, now that the federal approval. Finally, the proposed Coastal Zone Management Program program has matured. rule would remove 15 CFR part 933 In March 1995, President Clinton because it implements a portion of the Regulations issued a directive to federal agencies CZMA that was repealed in 1986. AGENCY: Office of Ocean and Coastal regarding their responsibilities under OCRM will provide guidance on a Resource Management (OCRM), his Regulatory Reform Initiative. This corresponding technical assistance National Ocean Service (NOS), National initiative is part of the National provision that was added to the CZMA Oceanic and Atmospheric Performance Review and calls for in the Coastal Zone Act Reauthorization Administration (NOAA), Department of immediate, comprehensive regulatory Amendments of 1990. reform. The President directed all Commerce (DOC). D. Updates Program Change Regulations ACTION: Proposed rule. agencies to review all of their regulations, with an emphasis on The proposed rule would update the SUMMARY: The National Oceanic and eliminating or modifying those that are program change regulations so that they Atmospheric Administration (NOAA) is obsolete or otherwise in need of reform. more precisely reflect the structure of proposing to revise and consolidate its This proposed rule is intended to carry coastal management programs. In regulations concerning coastal zone out the President’s directive with particular, the four criteria identified at management (CZM) program respect to the regulations implementing 15 CFR 923.80(d)(1)–(4), by which development, approval, grants and the Coastal Zone Management program program changes are assessed, would be evaluation, and remove obsolete rules and revises those regulations as follows: replaced by a reference to the five concerning research and technical program approvability areas identified A. Consolidates Regulations assistance. These regulations in part 923: (1) uses subject to implement, in part, the Coastal Zone The proposed rule would consolidate management, (2) special management Management Act, as amended (CZMA). CZM program regulations found in areas, (3) boundaries, (4) authorities and The purpose of this proposed rule is to present 15 CFR parts 923, 927, 928 and organization, and (5) coordination, remove outdated provisions and to 932 into a revised part 923. This public involvement and national revise and consolidate remaining consolidation is expected to make the interest. provisions. The intended effect of this regulations easier for coastal states, While the four criteria were an effort proposed rule is to make the CZM territories and the public to use. to group the program approvability areas, not all program changes fit program regulations more concise and B. Removes Regulations Restating easier to use. squarely within the four groups. The Statutory Language proposed rule repeats the headings of DATES: Comments on the proposed rule The proposed rule would remove subparts B through F of part 923, and so, are invited and will be considered if those regulations in 15 CFR part 923 tracks the program approvability areas. submitted on or before April 25, 1996. that simply restate provisions contained In addition, states may refer to these ADDRESSES: All comments concerning in the Coastal Zone Management Act. subparts for assistance in their analysis these proposed regulations should be These provisions would be replaced, of a program change. Furthermore, mailed to: Clement Lewsey, Coastal where appropriate, with references to states would no longer be required to Programs Division, Office of Ocean and the applicable sections of the CZMA. address those program areas that do not Coastal Resource Management, NOAA, Removal of these provisions is in apply to their proposed changes. Rather, N/ORM3, 1305 East-West Highway, accordance with the rules of the Office the proposal allows states to discuss one SSMC 4, 11th Floor, Silver Spring, MD of the Federal Register which discourage or more of the program areas that would 20910. agencies from restating the language of be affected by a change. Thus, the FOR FURTHER INFORMATION CONTACT: a law in a document intended for proposal allows states greater flexibility Roger Eckert, NOAA Office of General publication in the Federal Register. to provide a more focused analysis. Counsel for Ocean Services, at 301–713– OCRM anticipates that most program 2967 (ext. 213), fax: 301–713–4408, e- C. Removes Outdated Provisions and change requests will continue to be mail: [email protected]. Simplifies Remaining Provisions routine program changes. OCRM plans SUPPLEMENTARY INFORMATION: The proposed rule would remove to provide coastal states and territories those regulations in 15 CFR part 923 with additional program change I. Authority that are no longer necessary because the guidance. This proposed rule is issued under CZM program has reached its maturity, The proposed rule also would add the authority of the CZMA, 16 U.S.C. and simplify the remaining provisions. explanatory statements concerning the 1451 et seq. Many of the more detailed regulatory addition of any enforceable policies to requirements would be removed. Since management programs. These II. Background part 923 largely addresses requirements statements reflect Congress’ increased The CZMA was enacted to encourage for the development and approval of focus on enforceable policies in the and assist the 35 eligible coastal states coastal management programs, many of Coastal Zone Act Reauthorization and territories to develop and these changes would not apply to those Amendments of 1990. OCRM, federal implement CZM programs to preserve, states that already have federally agencies, applicants for federal licenses protect, develop and, where possible, approved CZM programs. For the or permits, and often the state coastal Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Proposed Rules 9747 programs themselves, cannot always Paperwork Reduction Act Dated: March 1, 1996. identify the enforceable policies in a The proposed rule contains W. Scott Page, program. OCRM recognizes that events collection-of-information requirements Acting Assistant Administrator for Ocean beyond a coastal management program’s subject to review and approval by OMB Services and Coastal Zone Management. control can change the enforceability of under the Paperwork Reduction Act For the reasons set out in the a policy. (PRA). The collection-of-information Preamble, it is proposed to amend 15 However, OCRM needs to know just requirements contained in this proposed CFR Chapter IX as follows: what is being changed at the time of a rule have been approved under OMB 1. The heading for Part 923 is revised program change, and federal agencies Control Number 0648–0119. The to read as follows: and applicants should be allowed to estimated response times for these comment on the enforceable policies requirements are 480 hours for PART 923ÐCOASTAL ZONE submitted for incorporation. management program approval and 8 MANAGEMENT PROGRAM Finally, the term ‘‘routine program hours for program amendments and REGULATIONS implementation’’ would be changed to routine program changes. 2. The table of contents for Part 923 the more descriptive term ‘‘routine The response estimates shown is revised to read as follows: program change,’’ and existing agency include the time for reviewing practice that allows for the resubmittal instructions, searching existing data Subpart AÐGeneral of routine program change requests sources, gathering and maintaining data Sec. would be codified. needed, and completing and reviewing 923.1 Purpose and scope. the collection of information. Send 923.2 Definitions. III. Miscellaneous Rulemaking comments regarding these burden 923.3 General requirements. Requirements estimates or any other aspect of the Subpart BÐUses Subject to Management Executive Order 12372: collection of information to the Coastal 923.10 General. Intergovernmental Review Programs Division at the ADDRESSES 923.11 Uses subject to management. above, and to OMB at the Office of 923.12 Uses of regional benefit. This program is subject to Executive Information and Regulatory Affairs, 923.13 Energy facility planning process. Order 12372. Office of Management and Budget, Subpart CÐSpecial Management Areas Executive Order 12612: Federalism Washington, DC. 20503 (Attention: NOAA Desk Officer). 923.20 General. Assessment 923.21 Areas of particular concern. Notwithstanding any other provision 923.22 Areas for preservation or restoration. NOAA has concluded that this of the law, no person is required to regulatory action does not have 923.23 Other areas of particular concern. respond to, nor shall any person be 923.24 Shorefront access and protection sufficient federalism implications to subject to a penalty for failure to comply planning. warrant the preparation of a Federalism with a collection of information, subject 923.25 Shoreline erosion/mitigation Assessment under Executive Order to the requirements of the PRA, unless planning. 12612. that collection of information displays a Subpart DÐBoundaries currently valid OMB Control Number. Executive Order 12866: Regulatory 923.30 General. Planning and Review National Environmental Policy Act 923.31 Inland boundary. 923.32 Lakeward or seaward boundary. This regulatory action is not NOAA has concluded that this 923.33 Excluded lands. significant for purposes of Executive regulatory action does not constitute a 923.34 Interstate boundary. Order 12866. major federal action significantly Subpart EÐAuthorities and Organization Regulatory Flexibility Act affecting the quality of the human environment. Therefore, an 923.40 General. The Assistant General Counsel for environmental impact statement is not 923.41 Identification of authorities. Legislation and Regulation of the required. 923.42 State establishment of criteria and standards for local implementation— Department of Commerce has certified List of Subjects Technique A. to the Chief Counsel for Advocacy of the 923.43 Direct State land and water use Small Business Administration that the 15 CFR Parts 923, 928 and 932 planning and regulation—Technique B. proposed rule, if adopted, would not Administrative practice and 923.44 State review on a case-by-case basis have a significant impact on a procedure, Coastal zone, Grant of actions affecting land and water uses substantial number of small entities programs—Natural resources, Reporting subject to the management program— Technique C. because (1) the rule addresses CZM and recordkeeping requirements. programs of coastal states and 923.45 Air and water pollution control territories, (2) those provisions that 15 CFR Part 926 requirements. 923.46 Organizational structure. would be removed, because they are [Reserved] 923.47 Designated State agency. outdated or repeat statutory language, 923.48 Documentation. are unnecessary for the development 15 CFR Part 927 and implementation of CZM programs, Administrative practice and Subpart FÐCoordination, Public Involvement and National Interest and (3) the revision and consolidation of procedure, Coastal zone, Grant remaining provisions would impose no programs—Natural resources. 923.50 General. additional burden on small entities. In 923.51 Federal-State consultation. particular, the update of the CZM 15 CFR Part 933 923.52 Consideration of the national interest in facilities. program change regulations, if adopted, Administrative practice and 923.53 Federal consistency procedures. would help ensure the continued procedure, Coastal zone, Grant 923.54 Mediation. approvability of CZM programs. programs—Natural resources, Reporting 923.55 Full participation by State and local Accordingly, an initial Regulatory and recordkeeping requirements, governments, interested parties, and the Flexibility Analysis was not prepared. Research. general public. 9748 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Proposed Rules

923.56 Plan coordination. Services and Coastal Zone Management applicable requirements of the Coastal 923.57 Continuing consultation. pursuant to the Coastal Zone Nonpoint Pollution Control Program of 923.58 Public hearings. Management Act of 1972, as amended the state required by section 6217 of the Subpart GÐReview/Approval Procedures (hereafter, the Act); the grant Coastal Zone Act Reauthorization 923.60 Review/approval procedures. application procedures for program Amendments of 1990. funds; conditions under which grants Subpart HÐAmendments to and may be terminated; and requirements § 923.2 Definitions. Termination of Approved Management (a) The term Act means the Coastal Programs for review of approved management programs. Zone Management Act of 1972, as 923.80 General. (b) Sections 306 and 307 of the Act set amended. 923.81 Requests for amendments. forth requirements which must be (b) The term Secretary means the 923.82 Amendment review/approval Secretary of Commerce and his/her procedures. fulfilled as a condition of program 923.83 Mediation of amendments. approval. The specifics of these designee. 923.84 Routine program changes. requirements are set forth below under (c) The term Assistant Administrator the following headings: General means the Assistant Administrator for Subpart IÐApplications for Program Ocean Services and Coastal Zone Development or Implementation Grants Requirements; Uses Subject to Management; Special Management Management, National Oceanic and 923.90 General. Atmospheric Administration (NOAA), 923.91 State responsibility. Areas; Boundaries; Authorities and Organization; and Coordination, Public or designee. 923.92 Allocation. (d)(1) The term relevant Federal 923.93 Eligible implementation costs. Involvement and National Interest. All 923.94 Application for program relevant sections of the Act are dealt agencies means those Federal agencies development or implementation grants. with under one of these groupings, but with programs, activities, projects, 923.95 Approval of applications. not necessarily in the order in which regulatory, financing, or other assistance 923.96 Grant amendments. they appear in the Act. responsibilities in the following fields Subpart JÐAllocation of Section 306 (c) In summary, the requirements for which could impact or affect a State’s Program Administration Grants program approval are that a State coastal zone: (i) Energy production or transmission, 923.110 Allocation formula. develop a management program that: (1) Identifies and evaluates those (ii) Recreation of a more than local Subpart KÐCoastal Zone Enhancement coastal resources recognized in the Act nature, Grants Program as requiring management or protection (iii) Transportation, 923.121 General. by the State; (iv) Production of food and fiber, 923.122 Objectives. (2) Reexamines existing policies or (v) Preservation of life and property, 923.123 Definitions. develops new policies to manage these (vi) National defense, 923.124 Allocation of section 309 funds. resources. These policies must be (vii) Historic, cultural, aesthetic, and 923.125 Criteria for section 309 project conservation values, selection. specific, comprehensive, and enforceable; (viii) Mineral resources and 923.126 Pre-application procedures. extraction, and 923.127 Formal application for financial (3) Determines specific use and assistance and application review and special geographic areas that are to be (ix) Pollution abatement and control. approval procedures. subject to the management program, (2) The following are defined as 923.128 Revisions to assessments and based on the nature of identified coastal relevant Federal agencies: Department strategies. concerns; of Agriculture; Department of Commerce; Department of Defense; Subpart LÐReview of Performance (4) Identifies the inland and seaward Department of Education; Department of 923.131 General. areas subject to the management program; Energy; Department of Health and 923.132 Definitions. Human Services; Department of 923.133 Procedure for conducting (5) Provides for the consideration of continuing reviews of approved State the national interest in the planning for Housing and Urban Development; CZM programs. and siting of facilities that meet more Department of the Interior; Department 923.134 Public participation. than local requirements; of Transportation; Environmental 923.135 Enforcement. (6) Includes sufficient legal Protection Agency; Federal Energy 3. The authority for Part 923 is revised authorities and organizational Regulatory Commission; General to read as follows: arrangements to implement the program Services Administration; Nuclear and to ensure conformance to it. In Regulatory Commission; Federal Authority: 16 U.S.C. 1452 et seq. Sections arriving at these elements of the Emergency Management Agency. 923.92 and 923.94 are also issued under E.O. (e) The term Federal agencies 12372, July 14, 1982, 3 CFR, 1982 Comp. p. management program, States are obliged 197, as amended by E.O. 12416, April 8, to follow an open process which principally affected means the same as 1983, 3 CFR, 1983 Comp. p. 186; (31 U.S.C. involves providing information to and ‘‘relevant Federal agencies.’’ The 6506; 42 U.S.C. 3334). considering the interests of the general Assistant Administrator may include other agencies for purposes of reviewing 4. Subpart J consisting of §§ 923.90 public, special interest groups, local the management program and through 923.98 is removed, and governments, and regional, State, environmental impact statement. Subparts A through I of Part 923 are interstate, and Federal agencies; (f) The term Coastal State means a revised to read as follows: (7) Provides for public participation in permitting processes, consistency State of the United States in, or Subpart AÐGeneral determinations, and other similar bordering on, the Atlantic, Pacific, or decisions; Arctic Ocean, the Gulf of Mexico, Long § 923.1 Purpose and scope. (8) Provides a mechanism to ensure Island Sound, or one or more of the (a) The regulations in this part set that all state agencies will adhere to the Great Lakes. Pursuant to section 304(3) forth the requirements for State coastal program; and of the Act, the term also includes Puerto management program approval by the (9) Contains enforceable policies and Rico, the Virgin Islands, Guam, and Assistant Administrator for Ocean mechanisms to implement the American Samoa. Pursuant to section Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Proposed Rules 9749

703 of the Covenant to Establish a coastal resources, uses, and areas. The impacts on coastal waters or on Commonwealth of the Northern Mariana three classes must include policies that geographic areas likely to be affected by Islands in Political Union with the address uses of or impacts on wetlands or vulnerable to sea level rise. United States of America, the term also and floodplains within the State’s (3) The management program must includes the Northern Marianas. coastal zone, and that minimize the explain how those uses identified in (g) The term management program destruction, loss or degradation of paragraph (a)(2) of this section will be includes, but is not limited to, a wetlands and preserve and enhance managed. The management program comprehensive statement in words, their natural values in accordance with must also contain those enforceable maps, illustrations, or other media of the purposes of Executive Order 11990, policies, legal authorities, performance communication, including an pertaining to wetlands. These policies standards or other techniques or articulation of enforceable policies and also must reduce risks of flood loss, procedures that will govern whether citation of authorities providing this minimize the impact of floods on and how uses will be allowed, enforceability, prepared and adopted by human safety, health and welfare, and conditioned, modified, encouraged or the State in accordance with the preserve the natural, beneficial values prohibited. provisions of this Act and this part, served by floodplains, in accordance (b) In identifying uses and their setting forth objectives, policies, and with the purpose of Executive Order appropriate management, a State should standards to guide public and private 11988, pertaining to floodplains. analyze the quality, location, uses of lands and waters in the coastal (d) The policies in the program must distribution and demand for the natural zone. be appropriate to the nature and degree and man-made resources of their coastal (h) The following terms, as used in of management needed for uses, areas, zone, and should consider potential these regulations, have the same and resources identified as subject to individual and cumulative impacts of definition as provided in section 304 of the program. uses on coastal waters. the Act: (e) The policies, standards, objectives, (c) States should utilize the following (1) Coastal zone; criteria, and procedures by which types of analyses: (1) Capability and suitability of (2) Coastal waters; program decisions will be made must resources to support existing or (3) Enforceable policy; provide: (4) Estuary; (1) A clear understanding of the projected uses; (2) Environmental impacts on coastal (5) Land use; and content of the program, especially in resources; (6) Water use. identifying who will be affected by the (i) The term grant means a financial (3) Compatibility of various uses with program and how, and adjacent uses or resources; assistance instrument and refers to both (2) A clear sense of direction and grants and cooperative agreements. (4) Evaluation of inland and other predictability for decisionmakers who location alternatives; and § 923.3 General requirements. must take actions pursuant to or (5) Water dependency of various uses (a) The management program must be consistent with the management and other social and economic developed and adopted in accordance program. considerations. with the requirements of the Act and (d) Examination of the following Subpart BÐUses Subject to factors is suggested: this part, after notice, and the Management opportunity for full participation by (1) Air and water quality; (2) Historic, cultural and esthetic relevant federal and state agencies, local § 923.10 General. resources where coastal development is governments, regional organizations, This subpart sets forth the likely to affect these resources; port authorities, and other interested requirements for management program (3) Open space or recreational uses of parties and persons, and be adequate to approvability with respect to land and the shoreline where increased access to carry out the purposes of the Act and be water uses which, because of their the shorefront is a particularly consistent with the national policy set direct and significant impacts on coastal important concern; forth in section 303 of the Act. waters or those geographic areas likely (4) Floral and faunal communities (b) The management program must to be affected by or vulnerable to sea where loss of living marine resources or provide for the management of those level rise, are subject to the terms of the threats to endangered or threatened land and water uses having a direct and management program. This subpart coastal species are particularly significant impact on coastal waters and deals in full with the following important concerns. those geographic areas which are likely subsections of the Act: 306(d)(1)(B), (5) Information on the impacts of to be affected by or vulnerable to sea Uses Subject to the Management global warming and resultant sea level level rise. The program must include Program, 306(d)(2)(H), Energy Facility rise on natural resources such as provisions to assure the appropriate Planning, and 306(d)(12)(B), Uses of beaches, dunes, estuaries, and wetlands, protection of those significant resources Regional Benefit. on salinization of drinking water and areas, such as wetlands, beaches supplies, and on properties, § 923.11 Uses subject to management. and dunes, and barrier islands, that infrastructure and public works. make the state’s coastal zone a unique, (a) (1) The management program for vulnerable, or valuable area. each coastal state must include a § 923.12 Uses of regional benefit. (c) The management program must definition of what shall constitute The management program must contain a broad class of policies for each permissible land uses and water uses contain a method of assuring that local of the following areas: resource within the coastal zone which have a land use and water use regulations protection, management of coastal direct and significant impact on the within the coastal zone do not development, and simplification of coastal waters. unreasonably restrict or exclude land governmental processes. These three (2) The management program must uses and water uses of regional benefit. broad classes must include specific identify those land and water uses that To this end, the management program policies that provide the framework for will be subject to the terms of the must: the exercise of various management management program. These uses shall (1) Identify what constitutes uses of techniques and authorities governing be those with direct and significant regional benefit; and 9750 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Proposed Rules

(2) Identify and utilize any one or a and Protection Planning; 306(d)(2)(I)— floods, erosion, settlement, salt water combination of methods, consistent Shoreline Erosion/Mitigation Planning; intrusion, and sea level rise; with the control techniques employed and 306(d)(9)—Areas for Preservation (8) Areas needed to protect, maintain by the State, to assure local land and and Restoration. or replenish coastal lands or resources water use regulations do not (b) The importance of designating including coastal flood plains, aquifers unreasonably restrict or exclude uses of areas of particular concern for and their recharge areas, estuaries, sand regional benefit. management purposes and the number dunes, coral and other reefs, beaches, and type of areas that should be offshore sand deposits and mangrove § 923.13 Energy facility planning process. designated is directly related to the stands. (a) The management program must degree of comprehensive controls (c) Where states will involve local contain a planning process for energy applied throughout a State’s coastal governments, other state agencies, facilities likely to be located in or which zone. Where a State’s general coastal federal agencies and/or the public in the may significantly affect, the coastal management policies and authorities process of designating areas of zone, including a process for address state and national concerns particular concern, States must provide anticipating the management of the comprehensively and are specific with guidelines to those who will be impacts resulting from such facilities. respect to particular resources and uses, involved in the designation process. (See subsection 304(5) of the Act.) This relatively less emphasis need be placed These guidelines shall contain the process must contain the following on designation of areas of particular purposes, criteria, and procedures for elements: concern. Where these policies are nominating areas of particular concern. (1) Identification of energy facilities limited and non-specific, greater (d) In identifying areas of concern by which are likely to locate in, or which emphasis should be placed on areas of location (if site specific) or category of may significantly affect, a State’s coastal particular concern to assure effective coastal resources (if generic), the zone; management and an adequate degree of program must contain sufficient detail (2) Procedures for assessing the program specificity. to enable affected landowners, suitability of sites for such facilities governmental entities and the public to designed to evaluate, to the extent § 923.21 Areas of particular concern. determine with reasonable certainty practicable, the costs and benefits of (a) The management program must whether a given area is designated. proposed and alternative sites in terms include an inventory and designation of (e) In identifying areas of concern, the of State and national interests as well as areas of particular concern within the program must describe the nature of the local concerns; coastal zone, on a generic and/or site- concern and the basis on which (3) Articulation and identification of specific basis, and broad guidelines on designations were made. enforceable State policies, authorities priorities of uses in particular areas, (f) The management program must and techniques for managing energy including specifically those uses of describe how the management program facilities and their impacts; and lowest priority. addresses and resolves the concerns for (4) Identification of how interested (b) In developing criteria for which areas are designated; and and affected public and private parties inventorying and designating areas of (g) The management program must will be involved in the planning particular concern. States must consider provide guidelines regarding priorities process. whether the following represent areas of of uses in these areas, including concern requiring special management: guidelines on uses of lowest priority. Subpart CÐSpecial Management Areas (1) Areas of unique, scarce, fragile or § 923.22 Areas for preservation or vulnerable natural habitat; unique or restoration. fragile, physical, figuration (as, for § 923.20 General. The management program must example, Niagara Falls); historical (a) This subpart sets forth the include procedures whereby specific significance, cultural value or scenic requirements for management program areas may be designated for the purpose importance (including resources on or approvability with respect to areas of of preserving or restoring them for their determined to be eligible for the particular concern because of their conservation, recreational, ecological, National Register of Historic Places.); coastal-related values or characteristics, historical or esthetic values, and the or because they may face pressures (2) Areas of high natural productivity criteria for such designations. which require detailed attention beyond or essential habitat for living resources, the general planning and regulatory including fish, wildlife, and endangered § 923.23 Other areas of particular concern. system which is part of the management species and the various trophic levels in (a) The management program may, program. As a result, these areas require the food web critical to their well-being; but is not required to, designate specific special management attention within (3) Areas of substantial recreational areas known to require additional or the terms of the State’s overall coastal value and/or opportunity; special management, but for which program. This special management may (4) Areas where developments and additional management techniques have include regulatory or permit facilities are dependent upon the not been developed or necessary requirements applicable only to the area utilization of, or access to, coastal authorities have not been established at of particular concern. It also may waters; the time of program approval. If a include increased intergovernmental (5) Areas of unique hydrologic, management program includes such coordination, technical, assistance, geologic or topographic significance for designations, the basis for designation enhanced public expenditures, or industrial or commercial development must be clearly stated, and a reasonable additional public services and or for dredge spoil disposal; time frame and procedures must be set maintenance to a designated area. This (6) Area or urban concentration where forth for developing and implementing subpart deals with the following shoreline utilization and water uses are appropriate management techniques. subsections of the Act: 306(d)(2)(C)— highly competitive; These procedures must provide for the Geographic Areas of Particular Concern; (7) Areas where, if development were development of those items required in 306(d)(2)(E)—Guidelines on Priorities of permitted, it might be subject to § 923.21. The management program Uses; 306(d)(2)(G)—Shorefront Access significant hazard due to storms, slides, must identify an agency (or agencies) Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Proposed Rules 9751 capable of formulating the necessary to restore areas adversely affected by rocky shores to the point of upland management policies and techniques. such erosion. vegetation; (b) The management program must (b) The basic purpose in developing (7) Islands—Bodies of land meet the requirements of § 923.22 for this planning process is to give special surrounded by water on all sides. containing procedures for designating attention to erosion issues. This special Islands must be included in their areas for preservation or restoration. The management attention may be achieved entirety, except when uses of interior management program may include by designating erosion areas as areas of portions of islands do not cause direct procedures and criteria for designating particular concern pursuant to § 923.21 and significant impacts. areas of particular concern for other or as areas for preservation or (8) The inland boundary must be than preservation or restoration restoration pursuant to § 923.22. presented in a manner that is clear and purposes after program approval. (c) The management program must exact enough to permit determination of include an identification and whether property or an activity is § 923.24 Shorefront access and protection description of enforceable policies, legal located within the management area. planning. authorities, funding techniques and States must be able to advise interested (a) The management program must other techniques that will be used to parties whether they are subject to the include a definition of the term ‘‘beach’’ manage the effects of erosion, including terms of the management program and a planning process for the potential impacts of sea level rise, as the within, at a maximum, 30 days of protection of, and access to, public state’s planning process indicates is receipt of an inquiry. An inland coastal beaches and other public coastal areas necessary. zone boundary defined in terms of of environmental, recreational, political jurisdiction (e.g., county, historical, esthetic, ecological or Subpart DÐBoundaries township or municipal lines) cultural cultural value. features (e.g., highways, railroads), § 923.30 General. (b) The basic purpose in focusing planning areas (e.g., regional agency special planning attention on shorefront This subpart sets forth the jurisdictions, census enumeration access and protection is to provide requirements for management program districts), or a uniform setback line is public beaches and other public coastal approvability with respect to boundaries acceptable so long as it includes the areas of environmental, recreational, of the coastal zone. There are four areas identified. historic, esthetic, ecological or cultural elements to a State’s boundary: the (b) The inland boundary of a State’s value with special management inland boundary, the seaward boundary, coastal zone may include: attention within the purview of the areas excluded from the boundary, and, (1) Watersheds—A state may State’s management program. This in most cases, interstate boundaries. determine some uses within entire special management attention may be Specific requirements with respect to watersheds which have direct and achieved by designating public procedures for determining and significant impact on coastal waters or shorefront areas requiring additional identifying these boundary elements are are likely to be affected by or vulnerable access or protection as areas of discussed in the sections of this subpart to sea level rise. In such cases it may be particular concern pursuant to § 923.21 that follow. appropriate to define the coastal zone as or areas for preservation or restoration including these watersheds. § 923.31 Inland boundary. pursuant to § 923.22. (2) Areas of tidal influence that (c) The management program must (a) The inland boundary of a State’s extend further inland than waters under contain a procedure for assessing public coastal zone must include: saline influence; particularly in beaches and other public areas, (1) Those areas the management of estuaries, deltas and rivers where uses including State owned lands, tidelands which is necessary to control uses inland could have direct and significant and bottom lands, which require access which have direct and significant impacts on coastal waters or areas that or protection, and a description of impacts on coastal waters, or are likely are likely to be affected by or vulnerable appropriate types of access and to be affected by or vulnerable to sea to sea level rise. protection. level rise, pursuant to section 923.11 of (3) Indian lands not held in trust by (d) The management program must these regulations. the Federal Government. contain a definition of the term ‘‘beach’’ (2) Those special management areas (c) In many urban areas or where the that is the broadest definition allowable identified pursuant to § 923.21; shoreline has been modified under state law or constitutional (3) Waters under saline influence— extensively, natural system provisions, and an identification of Waters containing a significant quantity relationships between land and water public areas meeting that definition. of seawater, as defined by and may be extremely difficult, if not, (e) The management program must uniformly applied by the State; impossible, to define in terms of direct contain an identification and (4) Salt marshes and wetlands—Areas and significant impacts. Two activities description of enforceable policies, legal subject to regular inundation of tidal that States should consider as causing authorities, funding programs and other salt (or Great Lakes) waters which direct and significant impacts on coastal techniques that will be used to provide contain marsh flora typical of the waters in urban areas are sewage such shorefront access and protection region; discharges and urban runoff. In that the State’s planning process (5) Beaches—The area affected by addition, States should consider indicates is necessary. wave action directly from the sea. dependency of uses on water access and Examples are sandy beaches and rocky visual relationships as factors § 923.25 Shoreline erosion/mitigation areas usually to the vegetation line; appropriate for the determination of the planning. (6) Transitional and intertidal areas— inland boundary in highly urbanized (a) The management program must Areas subject to coastal storm surge, and areas. include a planning process for assessing areas containing vegetation that is salt the effects of, and studying and tolerant and survives because of § 923.32 Lakeward or seaward boundary. evaluating ways to control, or lessen the conditions associated with proximity to (a) (1) For states adjoining the Great impact of, shoreline erosion, including coastal waters. Transitional and Lakes, the lakeward boundary of the potential impacts of sea level rise, and intertidal areas also include dunes and State’s coastal zone is the international 9752 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Proposed Rules boundary with Canada or the with adjoining coastal States regarding Control Development and Resolve boundaries with adjacent states. For delineation of any adjacent inland and Conflicts; 306(d)(10)(B)-Powers of states adjacent to the Atlantic or Pacific lateral seaward boundary. Acquisition; 306(d)(11)-Techniques of Ocean, or the Gulf of Mexico, the Control; and 307(f)-Air and Water seaward boundary is the outer limit of Subpart EÐAuthorities and Quality Control Requirements. The state title and ownership under the Organization organization requirements of the Act Submerged Lands Act (48 U.S.C. 1301 et § 923.40 General. dealt with in this subpart are those seq.), the Act of March 2, 1917 (48 contained in sections 306(d)(2)(F)- (a) This subpart sets forth the U.S.C. 749), the Covenant to Establish a requirements for management program Organizational Structure; 306(d)(6)- Commonwealth of the Northern Mariana approvability with respect to authorities Designated State Agency; and 306(d)(7)- Islands in Political Union with the and organization. The authorities and Organization. United States of America, as approved organizational structure on which a by the Act of March 24, 1976 (48 U.S.C. § 923.41 Identification of authorities. State will rely to administer its (a) (1) The management program must 1681 note) or section 1 of the Act of management program are the crucial November 10, 1963, (48 U.S.C. 1705, as identify the means by which the state underpinnings for enforcing the policies proposes to exert control over the applicable). which guide the management of the (2) The requirement for defining the permissible land uses and water uses uses and areas identified in its seaward boundary of a State’s coastal within the coastal zone which have a management program. There is a direct zone can be met by a simple restatement direct and significant impact on the relationship between the adequacy of of the limits defined in this section, coastal waters, including a listing of authorities and the adequacy of the unless there are water areas which relevant state constitutional provisions, overall program. The authorities need to require a more exact delineation laws, regulations, and judicial be broad enough in both geographic because of site specific policies decisions. These are the means by scope and subject matter to ensure associated with these areas. Where which the state will enforce its coastal implementation of the State’s States have site specific policies for management policies. (See section enforceable policies. These enforceable particular water areas, these shall be 304(6a) of the Act.) policies must be sufficiently mapped, described or referenced so that (2) The state chosen agency or comprehensive and specific to regulate their location can be determined agencies (including local governments, land and water uses, control reasonably easily by any party affected area-wide agencies, regional agencies, or development, and resolve conflicts by the policies. interstate agencies) must have the (b) The seaward limits, as defined in among competing uses in order to authority for the management of the this section, are for purposes of this assure wise use of the coastal zone. coastal zone. Such authority includes program only and represent the area (Issues relating to the adequate scope of the following powers: within which the State’s management the program are dealt with in § 923.3.) (i) To administer land use and water (b) The entity or entities which will program may be authorized and use regulations to control development exercise the program’s authorities is a financed. These limits are irrespective to ensure compliance with the matter of State determination. They may of any other claims States may have by management program, and to resolve be the state agency designated pursuant virtue of other laws. conflicts among competing uses; and to section 306(d)(6) of the Act, other (ii) To acquire fee simple and less § 923.33 Excluded lands. state agencies, regional or interstate than fee simple interests in land, waters, (a) The boundary of a State’s coastal bodies, and local governments. The and other property through zone must exclude lands owned, leased, major approval criterion is a condemnation or other means when held in trust or whose use is otherwise determination that such entity or necessary to achieve conformance with by law subject solely to the discretion of entities are required to exercise their the management program. the Federal Government, its officers or authorities in conformance with the (b) In order to meet these agents. To meet this requirement, the policies of the management program. requirements, the program must identify program must describe, list or map Accordingly, the essential requirement relevant state constitutional provisions, lands or types of lands owned, leased, is that the State demonstrate that there statutes, regulations, case law and such held in trust or otherwise used solely by is a means of ensuring such compliance. other legal instruments (including Federal agencies. This demonstration will be in the executive orders and interagency (b) The exclusion of Federal lands context of one or a combination of the agreements) that will be used to carry does not remove Federal agencies from three control techniques specified in out the state’s management program, the obligation of complying with the section 306(d)(11) of the Act. The including the authorities pursuant to consistency provisions of section 307 of requirements related to section sections 306(d)(10) and 306(d)(11) of the the Act when Federal actions on these 306(d)(12) of the Act are described in Act which require a state to have the excluded lands have spillover impacts §§ 923.42 through 923.44 of this ability to: that affect any land or water use or subchapter. (1) Administer land and water use natural resource of the coastal zone (c) In determining the adequacy of the regulations in conformance with the within the purview of a state’s authorities and organization of a state’s policies of the management program; management program. In excluding programs, the Assistant Administrator (2) Control such development as is Federal lands from a State’s coastal zone will review and evaluate authorities and necessary to ensure compliance with the for the purposes of this Act, a State does organizational arrangements in light of management program; not impair any rights or authorities that the requirements of this subpart and the (3) Resolve conflicts among it may have over Federal lands that exist finding of section 302(h) of the Act. competing uses; and separate from this program. (d) The authorities requirements of (4) Acquire appropriate interest in the Act dealt with in this subpart are lands, waters or other property as § 923.34 Interstate boundary. those contained in subsections necessary to achieve management States must document that there has 306(d)(2)(D)-Means of Control; objectives. Where acquisition will be a been consultation and coordination 306(d)(10)-Authorities; 306(d)(10)(A)- necessary technique for accomplishing Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Proposed Rules 9753 particular program policies and statutory authority to prepare and adopt (5) A State must be able to assure objectives, the management program a program for a local government, and implementation and enforcement of a must indicate for what purpose a mechanism by which the State can local program once approved. To acquisition will be used (i.e., what cause the local government to enforce accomplish this a State must: policies or objectives will be the State-created program. Where the (i) Establish a monitoring system accomplished); the type of acquisition mechanism to assure local enforcement which defines what constitutes and (e.g., fee simple, purchase of easements, will be judicial relief, the program must detects patterns of non-compliance. In condemnation); and what agency (or include the authority under which the case of uses of regional benefit and agencies) of government have the judicial relief can be sought; facilities in which there is a national authority for the specified type of (iii) State preparation and interest, the monitoring system must be acquisition. enforcement of a program on behalf of capable of detecting single instances of a local government. Here the State must local actions affecting such uses or § 923.42 State establishment of criteria have the authority to: facilities in a manner contrary to the and standards for local implementationÐ Technique A. (A) Prepare and adopt a plan, management program. regulations, and ordinances for the local (ii) Be capable of assuring compliance (a) The management program must government and when a pattern of deviation is detected provide for any one or a combination of (B) Enforce such plans, regulations or when a facility involving identified general techniques specified in and ordinances; national interests or a use of regional subsection 306(d)(11) of the Act for benefit is affected in a manner contrary control of land uses and water uses (iv) State review of local government actions on a case-by-case basis or on to the program’s policies. When State within the coastal zone. The first such action is required because of failure by control technique, at subsection appeal, and prevention of actions inconsistent with the standards and a local government to enforce its 306(d)(11)(A) of the Act, is state program, the State must be able to do establishment of criteria and standards criteria. Under this technique, when a local government fails to adopt an one or a combination of the following: for local implementation, subject to (A) Directly enforce the entire local administrative review and enforcement approvable program, the State must have the ability to review activities in program; (control technique A). (B) Directly enforce that portion of the (b) There are 5 principal requirements the coastal zone subject to the management program and the power to local program that is being enforced that control technique A must embody improperly. State intervention would be in order to be approved: prohibit, modify or condition those activities based on the policies, necessary only in those local (1) The State must have developed government activities that are violating and have in effect at the time of program standards and criteria of the management program; or the policies, standards or criteria. approval enforceable policies that meet (C) Seek judicial relief against local the requirements of § 923.3. These (v) If a locality fails to adopt a management program, the State may government for failure to properly policies must serve as the standards and enforce; criteria for local program development utilize a procedure whereby the responsibility for preparing a program (D) Review local government actions or the State must have separate on a case-by-case basis or on appeal and standards and criteria, related to these shifts to an intermediate level government, such as a county. If this have the power to prevent those actions enforceable policies, that will guide inconsistent with the policies and local program development. intermediate level of government fails to produce a program, then the State must standards. (2) During the period while local (E) Provide a procedure whereby the have the ability to take one of the programs are being developed, a State responsibility for enforcing a program actions described above. This must have sufficient authority to assure shifts to an intermediate level of alternative cannot be used where the that land and water use decisions government, assuming statutory intermediate level of government lacks subject to the management program will authority exists to enable the immediate the legal authority to adopt and comply with the program’s enforceable of government to assume this implement regulations necessary to policies. The adequacy of these responsibility. authorities will be judged on the same implement State policies, standards and basis as specified for direct State criteria. § 923.43 Direct State land and water use controls or case-by-case reviews. (4) A State must have a procedure planning and regulationÐTechnique B. (3) A State must be able to ensure that whereby it reviews and certifies the (a) The management program must coastal programs will be developed local program’s compliance with State provide for any one or a combination of pursuant to the State’s standards and standards and criteria. This procedure general techniques specified in criteria, or failing this, that the must include provisions for: subsection 306(d)(11) of the Act for management program can be (i) Opportunity for the public and control of land and water uses within implemented directly by the State. This governmental entities (including the coastal zone. The second such requirement can be met if a State can Federal agencies) to participate in the control technique, at subsection exercise any one of the following development of local programs; and 306(d)(11)(B) of the Act, is direct state techniques: (ii) Opportunity for the public and land and water use planning and (i) Direct State enforcement of its governmental entities (including regulation (control technique B). standards and criteria in which case a Federal agencies) to make their views (b) To have control technique B State would need to meet the known (through public hearings or other approved, the State must have the requirements of this section which means) to the State agency prior to requisite direct authority to plan and address the direct State control approval of local programs; and regulate land and water uses subject to technique; (iii) Review by the State of the the management program. This (ii) Preparation of a local program by adequacy of local programs authority can take the form of: a State agency which the local consideration of facilities identified in a (1) Comprehensive legislation—A government then would implement. To State’s management program in which single piece of comprehensive use this technique the State must have there is a national interest. legislation specific to coastal 9754 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Proposed Rules management and the requirements of the coastal zone. The third such control control requirements applicable to such this Act. technique, at subsection 306(d)(11)(C) of program. Incorporation of the air and (2) Networking—The utilization of the Act, is state administrative review water quality requirements pursuant to authorities which are compatible with for consistency with the management the CWA and CAA should involve their and applied on the basis of coastal program of all development plans, consideration during program management policies developed projects, or land and water use development, especially with respect to pursuant to § 923.3. regulations, including exceptions and use determinations and designation of (c) In order to apply the networking variances thereto, proposed by any state areas for special management. In concept, the State must: or local authority or private developer, addition, this incorporation will prove (1) Demonstrate that, taken together, with power to approve or disapprove to be more meaningful if close existing authorities can and will be used after public notice and an opportunity coordination and working relationships to implement the full range of policies for hearings (control technique C). between the State agency and the air and management techniques identified (b) Under case-by-case review, States and water quality agencies are as necessary for coastal management have the power to review individual developed and maintained throughout purposes; and development plans, projects or land and the program development process and (2) Bind each party which exercises water use regulations (including after program approval. statutory authority that is part of the variances and exceptions thereto) management program to conformance proposed by any State or local authority § 923.46 Organizational structure. with relevant enforceable policies and or private developer which have been The State must be organized to management techniques. Parties may be identified in the management program implement the management program. bound to conformance through an as being subject to review for The management program must describe executive order, administrative directive consistency with the management the organizational structure that will be or a memorandum of understanding program. This control technique used to implement and administer the provided that: requires the greatest degree of policy management program including a (i) The management program specificity because compliance with the discussion of those state and other authorities provide grounds for taking program will not require any prior agencies, including local governments, action to ensure compliance of actions on the part of anyone affected by that will have responsibility for networked agencies with the program. It the program. Specificity also is needed administering, enforcing and/or will be sufficient if any of the following to avoid challenges that decisions (made monitoring those authorities or can act to ensure compliance: The state pursuant to the management program) techniques required pursuant to the agency designated pursuant to are unfounded, arbitrary or capricious. following subsections of the Act: subsection 306(d)(6) of the Act, the (c) To have control technique C 306(d)(3)(B); 306(d)(10); 306(d)(10) (A) state’s Attorney General, another state approved, a State must: and (B); 306(d) (11) and (12); and 307(f). agency, a local government, or a citizen. (1) Identify the plans, projects or The management program must also (ii) The executive order, regulations subject to review, based on describe the relationship of these administrative directive or their significance in terms of impacts on administering agencies to the state memorandum of understanding coastal resources, potential for agency designated pursuant to establishes conformance requirements incompatibility with the State’s coastal subsection 306(d)(6) of the Act. of other State agency activities or management program, and having § 923.47 Designated State agency. authorities to management program greater than local significance; policies. A gubernatorial executive (2) Identify the State agency that will (a) For program approval, the order will be acceptable if networked conduct this review; Governor of the state must designate a State agency heads are directly (3) Include the criteria by which single state agency to receive and responsible to the Governor. identified plans, projects and administer the grants for implementing (3) Where networked State agencies regulations will be approved or the management program. can enforce the management program disapproved; (1) This entity must have the fiscal policies at the time of section 306 (4) Have the power to approve or and legal capability to accept and approval without first having to revise disapprove identified plans, projects or administer grant funds, to make their operating rules and regulations, regulations that are inconsistent with contracts or other arrangements (such as then any proposed revisions to such the management program, or the power passthrough grants) with participating rules and regulations which would to seek court review thereof; and agencies for the purpose of carrying out enhance or facilitate implementation (5) Provide public notice of reviews specific management tasks and to need not be accomplished prior to and the opportunity for public hearing account for the expenditure of the program approval. Where State agencies prior to rendering a decision on each implementation funds of any recipient cannot enforce coastal policies without case-by-case review. of such monies, and (2) This entity must have the first revising their rules and regulations, § 923.45 Air and water pollution control administrative capability to monitor and then these revisions must be made prior requirements. evaluate the management of the State’s to approval of the State’s program by the The program must incorporate, by coastal resources by the various Assistant Administrator. reference or otherwise, all requirements agencies and/or local governments with § 923.44 State review on a case-by-case established by the Federal Water specified responsibilities under the basis of actions affecting land and water Pollution Control Act, as amended management program (irrespective of uses subject to the management program- (Clean Water Act of CWA), or the Clean whether such entities receive section Technique C. Air Act, as amended (CAA), or 306 funds); to make periodic reports to (a) The management program must established by the Federal Government the Office of Ocean and Coastal provide for any one or a combination of or by any state or local government Resource Management (OCRM), the general techniques specified in pursuant to such Acts. Such Governor, or the State legislature, as subsection 306(d)(11) of the Act for requirements must be the water appropriate, regarding the performance control of land and water uses within pollution control and air pollution of all agencies involved in the program. Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Proposed Rules 9755

The entity also must be capable of and any changes thereto, submitted for of the management program and to presenting evidence of adherence to the the approval of the Assistant responding to concerns by interested management program or justification for Administrator. parties. The requirements for deviation as part of the review by OCRM (b) Has designated a single State intergovernmental cooperation and of State performance required by section agency to receive and administer public participation continue after 312 of the Act. implementation grants; program approval. (b) (1) The 306 agency designation is (c) Attests to the fact that the State has (c) This subpart deals with designed to establish a single point of the authorities necessary to implement requirements for coordination with accountability for prudent use of the management program; and governmental entities, interest groups administrative funds in the furtherance (d) Attests to the fact that the State is and the general public to assure that of the management and for monitoring organized to implement the their interests are fully expressed and of management activities. Designation management program. considered during the program does not imply that this single agency development process and that Subpart FÐCoordination, Public need be a ‘‘super agency’’ or the procedures are created to insure Involvement and National Interest principal implementation vehicle. It is, continued consideration of their views however, the focal point for proper § 923.50 General. during program implementation. In administration and evaluation of the (a) Coordination with governmental addition, this subpart deals with State’s program and the entity to which agencies having interests and mediation procedures for serious OCRM will look when monitoring and responsibilities affecting the coastal disagreements between States and reevaluating a State’s program during zone, and involvement of interest Federal agencies that occur during program implementation. groups as well as the general public is program development and (2) The requirement for the single implementation. This subpart addresses designated agency should not be viewed essential to the development and administration of State coastal the requirements of the following as confining or otherwise limiting the subsections of the Act: 306(d)(1)— role and responsibilities which may be management programs. The coordination requirements of this Opportunity for Full Participation; assigned to this agency. It is up to the 306(d)(3)(A)—Plan Coordination; State to decide in what manner and to subpart are intended to achieve a proper balancing of diverse interests in the 306(d)(3)(B)—Continued State-Local what extent the designated State agency Consultation; 306(d)(4)—Public will be involved in actual program coastal zone. The policies of section 303 of the Act require that there be a Hearings; 306(d)(8)—Consideration of implementation or enforcement. In the National Interest in Facilities; determining the extent to which this balancing of varying, sometimes conflicting, interests, including: 307(b)—Federal Consultation; and agency should be involved in program 307(h)—Mediation. implementation or enforcement, specific (1) The preservation, protection, factors should be considered, such as development and, where possible, the § 923.51 Federal-State consultation. restoration or enhancement of coastal the manner in which local and regional (a) The management program must be authorities are involved in program resources; (2) The achievement of wise use of developed and adopted with the implementation, the administrative coastal land and water resources with opportunity of full participation by structure of the State, the authorities to full consideration for ecological, relevant Federal agencies and with be relied upon the agencies cultural, historic, and aesthetic values adequate consideration of the views of administering such authorities. Because and needs for compatible economic Federal agencies principally affected by the designated State agency may be development; such program. viewed as the best vehicle for increasing (3) The involvement of the public, of (b) By providing relevant Federal the unity and efficiency of a Federal, state and local governments agencies with the opportunity for full management program, the State may and of regional agencies in the participation during program want to consider the following in development and implementation of development and for adequately selecting which agency to designate: considering the views of such agencies, (i) Whether the designated State entity coastal management programs; (4) The management of coastal States can effectuate the Federal has a legislative mandate to coordinate development to improve, safeguard, and consistency provisions of subsections other State or local programs, plans and/ restore coastal water quality; and 307 (c) and (d) of the Act once their or policies within the coastal zone; (5) The study and development of programs are approved. (See 15 CFR (ii) To what extent linkages already part 930 for a full discussion of the exist between the entity, other agencies, plans for addressing the adverse effects of land subsidence and sea level rise. Federal consistency provisions of the and local governments; Act.) (iii) To what extent management or (b) In order to be meaningful, regulatory authorities affecting the coordination with and participation by (c) In addition to the consideration of coastal zone presently are administered various units and levels of government relevant Federal agency views required by the agency; and including regional commissions, during program development, Federal (iv) Whether the agency is equipped interest groups, and the general public agencies have the opportunity to to handle monitoring, evaluation and should begin early in the process of provide further comment during the enforcement responsibilities. program development and should program review and approval process. continue throughout on a timely basis to (See subpart G for details on this § 923.48 Documentation. assure that such efforts will result in process.) Moreover, in the event of a A transmittal letter signed by the substantive inputs into a State’s serious disagreement between a relevant Governor is required for the submission management program. State efforts Federal agency and designated State of a management program for federal should be devoted not only to obtaining agency during program development or approval. The letter must state that the information necessary for developing during program implementation, the Governor: the management program but also to mediation provisions of subsection (a) Has reviewed and approved as obtaining reactions and 307(h) of the Act are available. (See State policy, the management program, recommendations regarding the content § 923.54 for details on mediation.) 9756 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Proposed Rules

(d) In order to provide an opportunity resolved at the time of program subsection 306(d)(6) of the Act or a for participation by relevant Federal submission. single other agency will handle agencies and give adequate consistency review (see 15 CFR 930.18); consideration to their views, each state § 923.52 Consideration of the national (2) A list of Federal license and interest in facilities. must: permit activities that will be subject to (i) Contact each relevant Federal (a) The management program must review (see 15 CFR 930.53); Agency listed in § 923.2(d) and such provide for adequate consideration of (3) For States anticipating coastal the national interest involved in other Federal agencies as may be zone effects from Outer Continental planning for, and managing the coastal relevant, owing to a State’s particular Shelf (OCS) activities, the license and zone, including the siting of facilities circumstances, early in the development permit list also must include OCS plans such as energy facilities which are of of its management program. The which describe in detail Federal license greater than local significance. In the purpose of such contact is to develop and permit activities (see 15 CFR case of energy facilities, the State must mutual arrangements or understandings 930.74); and have considered any applicable national regarding that agency’s participation (4) The public notice procedures to be or interstate energy plan or program. during program development; used for certifications submitted for (b) The primary purpose of this Federal License and permit activities (2) Provide for Federal agency input requirement is to assure adequate on a timely basis as the program is and, where appropriate, for OCS plans consideration by States of the national (see 15 CFR 930.61 through 930.62 and developed. Such input shall be related interest involved in the planning for and both to information required to develop 930.78). siting of facilities (which are necessary (b) Beyond the minimum the management program and to to meet other than local requirements) evaluation of and recommendations requirements contained in paragraph (a) during: of this section, States have the option of concerning various elements of the (1) The development of the State’s management program; including: management program, (1) A list of Federal activities, (3) Solicit statements from the head of (2) The review and approval of the including development projects, which Federal agencies identified in Table 1 of program by the Assistant Administrator, in the opinion of the State agency are § 923.52(c)(1) as to their interpretation and of the national interest in the planning (3) The implementation of the likely to significantly affect the coastal for and siting of facilities which are program as such facilities are proposed. zone and thereby will require a Federal more than local in nature; (c) In order to fulfill this requirement, agency consistency determination (see (4) Summarize the nature, frequency, States must: 15 CFR 930.35); and (2) A description of the types of and timing of contacts with relevant (1) Describe the national interest in information and data necessary to assess Federal agencies; the planning for and siting of facilities the consistency of Federal license and (5) Evaluate Federal comments considered during program permit activities and, where received during the program development. appropriate, those described in detail in development process and, where (2) Indicate the sources relied upon OCS plans (see 15 CFR 930.56 and appropriate in the opinion of the State, for a description of the national interest 930.75). accommodate the substance of pertinent in the planning for and siting of the comments in the management program. facilities. § 923.54 Mediation. States must consider and evaluate (3) Indicate how and where the consideration of the national interest is (a) Section 307(h) of the Act provides relevant Federal agency views or for mediation of serious disagreement comments about the following: reflected in the substance of the management program. In the case of between any Federal agency and a (i) Management of coastal resources energy facilities in which there is a coastal state in the development and for preservation, conservation, national interest, the program must implementation of a management development, enhancement or indicate the consideration given any program. In certain cases, mediation by restoration purposes; national or interstate energy plans or the Secretary, with the assistance of the (ii) Statements of the national interest programs which are applicable to or Executive Office of the President, may in the planning for or siting of facilities affect a state’s coastal zone. be an appropriate forum for conflict which are more than local in nature; (4) Describe the process for continued resolution. (iii) Uses which are subject to the consideration of the national interest in (b) State-Federal differences should be management program; the planning for and siting of facilities addressed initially by the parties (iv) Areas which are of particular during program implementation, involved. Whenever a serious concern to the management program; including a clear and detailed disagreement cannot be resolved (v) Boundary determinations; description of the administrative between the parties concerned, either (vi) Shorefront access and protecting procedures and decisions points where party may request the informal planning, energy facility planning and such interest will be considered. assistance of the Assistant erosion planning processes; and Administrator in resolving the (vii) Federally developed or assisted § 923.53 Federal consistency procedures. disagreement. This request shall be in plans that must be coordinated with the (a) A State must include in its writing, stating the points of management program pursuant to management program submission, as disagreement and the reason therefor. A subsection 306(d)(3) of the Act. part of the body of the submission an copy of the request shall be sent to the (6) Indicate the nature of major appendix or an attachment, the other party to the disagreement. comments by Federal agencies provided procedures it will use to implement the (c) If a serious disagreement persists, during program development (either by Federal consistency requirements of the Secretary or other head of a relevant including copies of comments or by subsections 307 (c) and (d) of the Act. Federal agency, or the Governor or the summarizing comments) and discuss At a minimum, the following must be head of the state agency designated by any major differences or conflicts included: the Governor as administratively between the management program and (1) An indication of whether the state responsible for program development (if Federal views that have not been agency designated pursuant to a state still is receiving section 305 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Proposed Rules 9757 program development grants) or for affected parties, identified in paragraph submission and the means that can be program implementation (if a state is (b)(2) of this section, and the nature of used to resolve these conflicts. receiving section 306 program the State’s response to these comments; implementation grants) may notify the and § 923.57 Continuing consultation. Secretary in writing of the existence of (d) Hold public meetings, workshops, (a) As required by subsection a serious disagreement, and may request etc., during the course of program 306(d)(3)(B) of the Act, a State must that the Secretary seek to mediate the development at accessible locations and establish an effective mechanism for serious disagreement. A copy of the convenient times, with reasonable continuing consultation and written request must be sent to the notice and availability of materials. coordination between the management agency with which the requesting agency designated pursuant to agency disagrees and to the Assistant § 923.56 Plan coordination. paragraph (6) of section 306(d) of the Administrator. (a) The management program must be Act and with local governments, (d) Secretarial mediation efforts shall coordinated with local, areawide, and interstate agencies, regional agencies, last only so long as the parties agree to interstate plans applicable to areas and areawide agencies within the participate. The Secretary shall confer within the coastal zone— coastal zone to assure the full with the Executive Office of the (1) Existing on January 1 of the year participation of those local governments President, as necessary, during the in which the state’s management and agencies in carrying out the mediation process. program is submitted to the Secretary; purposes of this Act. (e) Mediation shall terminate: and (b) The management program must establish a procedure whereby local (1) At any time the parties agree to a (2) Which have been developed by a governments with zoning authority are resolution of the serious disagreement, local government, an areawide agency, a notified of State management program (2) If one of the parties withdraws regional agency, or an interstate agency. decisions which would conflict with from mediation, (b) A State must insure that the any local zoning ordinance decision. (3) In the event the parties fail to contents of its management program has reach a resolution of the serious (1) ‘‘Management program decision’’ been coordinated with local, areawide refers to any major, discretionary policy disagreement within 15 days following and interstate plans applicable to areas Secretarial mediation efforts, and the decisions on the part of a management within the coastal zone existing on agency, such as the determination of parties do not agree to extend mediation January 1 of the year in which the beyond that period, or permissible land and water uses, the State’s management program is designation of areas or particular (4) For other good cause. submitted to the Assistant (f) The availability of the mediation concern or areas for preservation or Administrator for approval. To restoration, or the decision to acquire services provided in this section is not document this coordination, the intended expressly or implicitly to limit property for public uses. Regulatory management program must: actions which are taken pursuant to the parties’ use of alternate forums to (1) Identify local governments, resolve disputes. these major decisions are not subject to areawide agencies and regional or the State-local consultation Specifically, judicial review where interstate agencies which have plans otherwise available by law may be mechanisms. A State management affecting the coastal zone in effect on program decision is in conflict with a sought by any party to a serious January 1 of the year in which the disagreement without first having local zoning ordinance if the decision is management program is submitted; contradictory to that ordinance. A State exhausted the mediation process (2) List or provide a summary of provided herein. management program decision that contacts with these entities for the consists of additional but not § 923.55 Full participation by State and purpose of coordinating the contradictory requirements is not in local governments, interested parties, and management program with plans conflict with a local zoning ordinance, the general public. adopted by a governmental entity as of decision or other action; The management program must be January 1 of the year in which the (2) ‘‘Local government’’ refers to these developed and adopted with the management program is submitted. At a defined in section 304(11) of the Act opportunity of full participation by state minimum, the following plans, affecting which have some form of zoning agencies, local governments, regional a State coastal zone, shall be reviewed: authority. commissions and organizations, port land use plans prepared pursuant to (3) ‘‘Local zoning ordinance, decision authorities, and other interested public section 701 of the Housing and Urban or other action’’ refers to any local and private parties. To meet this Development Act of 1968, as amended; government land or water use action requirement, a State must: State and areawide waste treatment which regulates or restricts the (a) Develop and make available facility or management plans prepared construction, alteration of use of land, general information regarding the pursuant to sections 201 and 208 of the water or structures thereon or program design, its content and its Clean Water Act, as amended; plans and thereunder. These actions include status throughout program designations made pursuant to the zoning ordinances, master plans and development; Flood Insurance Act of 1974; any official maps. A local government has (b) Provide a listing, as applicable interstate energy plans or the right to comment on a State comprehensive as possible, of all programs developed pursuant to section management program decision when governmental agencies, regional 309 of the Act; regional and interstate such decision conflicts with the above organizations, port authorities and highway plans; plans developed by specified actions; public and private organizations likely Regional Action Planning Commission; (4) Notification must be in writing to be affected by or to have a direct and fishery management plans and must inform the local government interest in the development and developed pursuant to the Fisheries of its right to submit comments to the implementation of the management Conservation and Management Act. State management agency in the event program; (3) Identify conflicts with those plans the proposed State management (c) Indicate the nature of major of a regulatory nature that are program decision conflicts with a local comments received from interested or unresolved at the time of program zoning ordinance, decision or other 9758 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Proposed Rules action. The effect of providing such the impacts of the management the program document submitted to the notice is to stay State action to program. If the hearing(s) are not on the Assistant Administrator for review and implement its management decision for management document per se, all approval. at least a 30-day period unless the local requests for such document must be government waives its right to honored and comments on the Subpart HÐAmendments to and comment. document received prior to submission Termination of Approved Management (5) ‘‘Waiver’’ of the right of local of the document to the Assistant Programs. government to comment (thereby Administrator must be considered; § 923.80 General. permitting a State agency to proceed (b) Provide a minimum of 30 days immediately with implementation of the public notice of hearing dates and (a) This subpart establishes the management program decision) shall locations; criteria and procedures by which result: (c) Make available for public review, amendments, modifications or other (i) Following State agency receipt of a at the time of public notice, all agency changes to approved management written statement from a local materials pertinent to the hearings; and programs may be made. This subpart government indicating that it either: (d) Include a transcript or summary of also establishes the conditions and (A) Waives its right to comment; or the public hearing(s) with the State’s procedures by which administrative (B) Concurs with the management program document or submit same funding may be terminated for program decision; or within thirty (30) days following programmatic reasons. (C) Intends to take action which submittal of the program to the (b) Any coastal state may amend or conflicts or interferes with the Assistant Administrator. At the same modify a management program which is management program decision; or time this transcript or summary is has submitted and which has been (ii) Following a public statement by a submitted to the Assistant approved by the Assistant local government to the same effect as Administrator, it must be made Administrator under this subsection, paragraph (b)(5)(i) of this section; or available, upon request, to the public. subject to the conditions provided for in (iii) Following an action by a local subsection 306(e) of the Act. government that conflicts or interferes Subpart GÐReview/Approval (c) As required by subsection 312(d) with the management program decision. Procedures of the Act, the Assistant Administrator (6) The management program shall shall withdraw approval of the include procedures to be followed by a § 923.60 Review/approval procedures. management program of any coastal management agency in considering a (a) All state management program state and shall withdraw financial local government’s comments. These submissions must contain an assistance available to that state under procedures shall include, at a minimum, environmental assessment at the time of this title as well as any unexpended circumstances under which the agency submission of the management program portion of such assistance, if the will exercise its discretion to hold a to OCRM for threshold review. In Assistant Administrator determines that public hearing. Where public hearings accordance with regulations the coastal state has failed to take the will be held, the program must set forth implementing the National actions referred to in subsection notice and other hearing procedures that Environmental Policy Act of 1969, as 312(c)(2)(A) of the Act. will be followed. Following State amended, OCRM will assist the State by (d) For purposes of this subpart, agency consideration of local comments outlining the types of information amendments are defined as substantial (when a discretionary public hearing is required. (See 40 CFR 1506.5 (a) and changes in one or more of the following not held) or following public hearing, (b).) coastal management program areas: the management agency shall provide a (b) Upon submission by a State of its (1) Uses subject to management; written response to the affected local draft management program, OCRM will (2) Special management areas; government, affected local government, determine if it adequately meets the (3) Boundaries; within a reasonable period of time and requirements of the Act and this part. (4) Authorities and organization; and prior to implementation of the Assuming positive findings are made (5) Coordination, public involvement management program decision, on the and major revisions to the State’s draft and the national interest. results of the agency’s consideration of management program are not required, (e) OCRM will provide guidance on public comments. OCRM will prepare draft and final program changes. The five program environmental impact statements, in management areas identified in § 923.58 Public hearings. accordance with National § 923.80(d) are also discussed in The management program must be Environmental Policy Act requirements. subparts B through F of this part. developed and adopted after the holding Because the review process involves of public hearings. A State must: preparation and dissemination of draft § 923.81 Requests for amendments. (a) Hold a minimum of two public and final environmental impact (a) Requests for amendments shall be hearings during the course of program statements and lengthy Federal agency submitted to the Assistant development, at least one of which will review; states should anticipate that it Administrator by the Governor of a be on the total scope of the coastal will take at least 7 months between the coastal state with an approved management program. Hearings on the time a state first submits a draft management program or by the head of total management program do not have management program to OCRM for the state agency (designated pursuant to to be held on the actual document threshold review and the point at which subsection 306(d)(6) of the Act) if the submitted to the Assistant the Assistant Administrator makes a Governor had delegated this Administrator for section 306 approval. final decision on whether to approve the responsibility and such delegation is However, such hearing(s) must cover management program. Certain factors part of the approved management the substance and content of the will contribute to lengthening or program. Whenever possible, requests proposed management program in such shortening this timetable; these factors should be submitted prior to final State a manner that the general public, and are discussed in OCRM guidance on the action to implement the amendment. At particularly affected parties, have a review/approval process. The OCRM least one public hearing must be held on reasonable opportunity to understand guidance also recommends a format for the proposed amendment, pursuant to Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Proposed Rules 9759 subsection 306(d)(4) of the Act. approvability criteria of subsection (i) States have the option of notifying Pursuant to section 311 of the Act, 306(d) of the Act. OCRM of routine change on a case-by- notice of such public hearing(s) must be (b) If the Assistant Administrator, as case basis, periodically throughout the announced at least 30 days prior to the a preliminary matter, determines that year, or annually. hearing date. At the time of the the management program, if changed, (ii) In determining when an how often announcement, relevant agency would no longer constitute an to notify OCRM of such actions, States materials pertinent to the hearing must approvable program, or if any of the should be aware that Federal be made available to the public. procedural requirements of section consistency will apply only after the (b) Amendment requests must contain 306(d) of the Act have not been met, the notice required by paragraph (b)(4) of the following: Assistant Administrator shall advise the this section has been provided. (1) A description of the proposed state in writing of the reasons why the (2) Concurrent with notifying OCRM, change, including specific pages and amendment request cannot be States must provide notice to the text of the management program that considered. general public and affected parties, will be changed if the amendment is (c) If the Assistant Administrator, as including local governments, other State approved by the Assistant a preliminary matter, determines that agencies and regional offices of relevant Administrator. This description shall the management program, if changed, federal agencies of the notification given also identify any enforceable policies to would still constitute an approvable OCRM. be added to the management program; program and that the procedural (i) This notice must: (2) An explanation of why the change requirements of section 306(d) of the (A) Describe the nature of the routine is necessary and appropriate, including Act have been met, the Assistant program change and identify any a discussion of the following factors, as Administrator will then determine, enforceable policies to be added to the relevant: Changes in coastal zone needs, pursuant to the National Environmental management program if the State’s problems, issues, or priorities. This Policy Act of 1969, as amended, request is approved; discussion also shall identify which whether an environmental impact (B) Indicate that the State considers it findings, if any, made by the Assistant statement (EIS) is required. to be a routine program change and has requested OCRM’s concurrence in that Administrator in approving the § 923.83 Medication of amendments. management program may need to be determination; and (a) Section 307(h)(2) of the Act (C) Indicate that any comments on modified if the amendment is approved; provides for mediation of ‘‘serious whether or not the action does or does (3) A copy of public notice(s) disagreements’’ between a Federal not constitute a routine program change announcing the public hearing(s) on the agency and a coastal State during may be submitted to OCRM within 3 proposed amendments; administration of an approved weeks of the date of issuance of the (4) A summary of the hearing(s) management program. Accordingly notice. comments: mediation is available to states or (ii) Where relevant Federal agencies (i) Where OCRM is providing Federal federal agencies when a serious do not maintain regional offices, notice agency review concurrent with the disagreement regarding a proposed must be provided to the headquarters notice period for the State’s public amendment arises. office. hearing, this summary of hearing(s) (b) Mediation may be requested by a (3) Within 4 weeks of receipt of notice comments may be submitted to the Governor or head of a state agency from a State, OCRM will inform the Assistant Administrator within 60 days designated pursuant to subsection State whether it concurs that the action after the hearing; 306(d)(6) or by the head of a relevant constitutes a routine program change. (ii) Where hearing(s) summaries are Federal agency. Mediation is a Failure to notify a State in writing submitted as a supplement to the voluntary process in which the within 4 weeks of receipt of notice shall amendment request (as in the case Secretary of Commerce attempts to be considered concurrence. described in paragraph (b)(1) of this mediate between disagreeing parties (4) Where OCRM concurs, a State then section), the Assistant Administrator over major problems. (See § 923.54). must provide notice of this fact to the will not take final action to approve or general public and affected parties, disapprove an amendment request until § 923.84 Routine program changes. including local governments, other State the hearing(s) summaries have been (a) Further detailing of a State’s agencies and relevant Federal agencies. received and reviewed; and program that is the result of (i) This notice must: (5) Documentation of opportunities implementing provisions approved as (A) Indicate the date on which the provided relevant Federal, State, part of a State’s approved management State received concurrence from OCRM regional and local agencies, port program, that does not result in the type that the action constitutes a routine authorities and other interested public of action described in § 923.80(d), will program change; and private parties to participate in the be considered a routine program change. (B) Reference the earlier notice development and approval at the State While a routine change is not subject to (required in paragraph (b)(2) of this level of the proposed amendment. the amendment procedures contained in section) for a description of the content §§ 923.81 through 923.82, it is subject to of the action; and § 923.82 Amendment review/approval mediation provisions of § 923.83. (C) Indicate if Federal consistency procedures. (b) (1) States must notify OCRM of applies as of the date of the notice (a) Upon submission by a State of its routine program change actions in order called for in this paragraph. amendment request, OCRM will review that OCRM may review the action to (ii) Federal consistency shall not be the request to determine preliminarily if ensure it does not constitute an required until this notice has been the management program, if changed amendment. The state notification shall provided. according to the amendment request, identify and enforceable policies to be (5) Where OCRM does not concur, a still will constitute an approvable added to the management program, and State will be advised to: program. In making this determination, explain why the program change will (i) submit the action as an OCRM will determine whether the state not result in the type of action described amendment, subject to the provisions of has satisfied the applicable program in § 923.80(d). §§ 923.81 through 923.82; or 9760 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Proposed Rules

(ii) resubmit the routine program § 923.91 State responsibility. under a section 306 grant cannot be change with additional information (a) Applications for program grants made, unless they are subject to requested by OCRM concerning how the are required to be submitted by the adequate State overview and are part of program will be changed as a result of Governor of a participating state or by the approved management program. the action. the head of the state entity designated Where the approved management by the Governor pursuant to subsection program provides for other specified Subpart IÐApplications for Program 306(d)(6) of the Act. local activities or one-time projects, Development or Implementation (b) In the case of a section 305 grant, again subject to adequate State Grants the application must designate a single overview, then a portion of § 923.90 General. state agency or entity to receive administrative grant funds may be development grants and to be considered regional agencies and may (a) The primary purpose of responsible for development of the be allocated to local governments. development grants made pursuant to State’s coastal management program. (2) Indian Tribes. Tribal participation section 305 of the Act is to assist coastal The designee need not be that entity in coastal management efforts may be States in the development of designated by the Governor pursuant to supported and encouraged through a comprehensive coastal management subsection 306(d)(6) of the Act as a State’s program. Individual tribes or programs that can be approved by the single agency to receive and administer groups of tribes may be considered Assistant Administrator. The primary implementation grants. regional agencies and may be allocated purpose of implementation grants made (c) One State application will cover a portion of a State’s grant for the pursuant to section 306 of the Act is to all program activities for which program development of independent tribal assist coastal States in implementing development or implementation funds coastal management programs or the coastal management programs following under this Act and matching State funds implementation of specific management their approval, including especially are provided, irrespective of whether projects provided that: administrative actions to implement these activities will be carried out by (i) The State certifies that such tribal enforceable program policies, State agencies, areawide or regional programs or projects are compatible authorities and other management agencies, local governments, or with its approved coastal management techniques. The purpose of the interstate entities. policies; and guidelines in this subpart is to define (d) The designated State entities shall (ii) On excluded tribal lands, the State the procedures by which grantees apply be fiscally responsible for all demonstrates that the tribal program or for and administer grants under the Act. expenditures made under the grant, project would or could directly affect These guidelines shall be used and including expenditures by subgrantees the State’s coastal zone. and contractors. interpreted in conjunction with § 923.93 Eligible implementation costs. applicable Federal laws and policies, § 923.92 Allocation. Department of Commerce grants (a) Costs claimed must be beneficial (a) Subsections 303(4), 306(d)(3)(B) management regulations, policies and and necessary to the objectives of the and 306(d)(10) of the Act foster procedures, and any other applicable grant project. As used herein the terms intergovernmental cooperation in that a directives from the NOAA Grants cost and grant project pertain to both the state, in accordance with its coastal Federal and the matching share. Management Division and OCRM zone management program, may Allowability of costs will be determined program offices. allocate some of its coastal zone in accordance with the provisions of (b) Grants awarded to a State must be management responsibilities to several OMB Circular A–87: Cost Principles for expended for the development or agencies, including local governments, State, Local and Indian Tribal administration, as appropriate, of a areawide agencies, regional agencies Governments. management program that meets the and interstate agencies. Such allocations (b) Federal funds awarded pursuant to requirements of the Act, and in provide for continuing consultation and section 306 of the Act may not be used accordance with the terms of the award. more effective participation and for land acquisition purposes and may (c) All applications for funding under cooperation among state and local not be used for construction purposes. section 305 or 306 of the Act, including governments, interstate, regional and These costs may be eligible, however, proposed work programs, funding areawide agencies. pursuant to section 306A of the Act. priorities and allocations are subject to (b) A State may allocate a portion or (c) The primary purpose for which the discretion of the Assistant portions of its grant to other State implementation funds, pursuant to Administrator. agencies, local governments, areawide section 306 of the Act, are to be used is or regional agencies, interstate entities, to assure effective implementation and (d) For purposes of this subpart, the or Indian tribes, if the work to result administration of the management term ‘‘development grant’’ means a from such allocation(s) will contribute program, including especially grant awarded pursuant to subsection to the effective development or administrative actions to implement 305(a) of the Act. ‘‘Administrative implementation of the State’s enforceable program policies, grant’’ and ‘‘implementation grant’’ are management program. authorities and other management used interchangeably and mean grants (1) Local governments. Should a State techniques. Implementation activities awarded pursuant to subsection 306(a) desire to allocate a portion of its grant should focus on achieving the policies of the Act. to a local government, units of general- of the Act. (e) All application and preapplication purpose local government are preferred (d) Section 306 funding in support of forms are to be requested from and over special-purpose units of local any of these purposes may be used to submitted to: National Oceanic and government. Where a State will be fund, among other things: Atmospheric Administration, Office of relying on direct State controls as (1) Personnel costs, Ocean and Coastal Resource provided for in subsection 306(d)(11)(B) (2) Supplies and overhead, Management, Coastal Programs of the Act, pass-throughs to local (3) Equipment, and Division, 1305 East-West Highway (N/ governments for local planning, (4) Feasibility studies and preliminary ORM3), Silver Spring, MD 20910. regulatory or administrative efforts engineering reports. Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Proposed Rules 9761

(e) States are encouraged to (1) An identification of those elements (c) The NOAA Grants Officer, upon coordinate administrative funding of the approved management program recommendation by the Assistant requests with funding possibilities that are to be supported in whole or in Administrator, may waive appropriate pursuant to sections 306A, 308, 309, 310 part by the Federal and the matching administrative requirements contained and 315 of the Act, as well as with share, in this subpart, upon finding of funding possibilities pursuant to section (2) A clear statement of the major extenuating circumstances relating to 6217 of the Coastal Zone Act tasks required to implement each applications for assistance. Reauthorization Amendments to 1990. element, When in doubt as to the appropriate (3) For each task the application must: § 923.96 Grant amendments. section of the Act under which to (i) Specify how it will be (a) Actions that require an request funding, States should consult accomplished and by whom; amendment to a grant award such as a with OCRM. States should consult with (ii) Identify any sub-awardees (other request for additional Federal funds, OCRM on technical aspects of State agencies, local governments, changes in the amount of the non- consolidating requests into a single individuals, etc.) that will be allocated Federal share, changes in the approved responsibility for carrying out all or application. project budget as specified in 15 CFR portions of the task, and indicate the Part 24, or extension of the grant period § 923.94 Application for program estimated cost of the sub-awards for must be submitted to the Assistant development or implementation grants. each allocation; and Administrator and approved in writing (a) OMB Standard Form 424 (4–92) (iii) Indicate the estimated total cost. (4) The sum of all task costs in by the NOAA Grants Officer prior to and the NOAA Application Kit for paragraph (c)(3) of this section should initiation of the contemplated change. Federal Assistance constitute the formal equal the total estimated grant project Such requests should be submitted at application. An original and two (2) cost. least 30 days prior to the proposed copies must be submitted 45 days prior (d) For program development grants, effective date of the change and, if to the desired grant beginning date. The when evaluating whether a State is appropriate, accompanied by evidence application must be accompanied by making satisfactory progress toward of compliance with E.O. 12372 evidence of compliance with E.O. 12372 completion of an approvable requirements. requirements including the resolution of management program which is (b) NOAA shall acknowledge receipt any problems raised by the proposed necessary to establish eligibility for of the grantee’s request within the ten project. The administrative subsequent grants, the Assistant (10) working days of receipt of the requirements for grants and subawards, Administrator will consider: correspondence. This notification shall under this program, to state, local and (1) The progress made toward meeting indicate NOAA’s decision regarding the Indian tribal governments are set out in management program goals and request; or indicate a time-frame within 15 CFR Part 24. The administrative objectives; which a decision will be made. requirements for other entities are (2) The progress demonstrated in prescribed under OMB Circular A–110: completing the past year’s work PART 926Ð[REMOVED] Administrative Requirements for Grants program; and Agreements with Institutions of (3) The cumulative progress toward 5. Part 926 which is currently Higher Education, Hospitals and Other meeting the requirements for reserved is removed. Non-Profit Organizations. preliminary or final approval of a (b) Costs claimed as charges to the coastal management program; PART 927Ð[REDESIGNATED AS PART grant project must be beneficial and (4) The applicability of the proposed 923, SUBPART J] necessary to the objectives of the grant work program to fulfillment of the 6. Part 927, consisting of § 927.1, is project. As used herein, the terms ‘‘cost’’ requirement for final approval; and redesignated as subpart J of part 923, and ‘‘grant project’’ pertain to both the (5) The effectiveness of mechanisms consisting of § 923.110. Federal amount awarded and the non- for insuring public participation and federal matching share. Allowability of consultation with affected Federal, State, regional and local agencies in PART 928Ð[REDESIGNATED AS PART costs will be determined in accordance 923, SUBPART L] with the provisions of OMB Circular A– program development. 87: Cost Principles for State, Local and § 923.95 Approval of applications. 7. Part 928 is redesignated as subpart Indian Tribal Governments. Eligible (a) The application for a grant by any L of part 923, and §§ 928.1 through implementation costs also shall be coastal State which complies with the 928.5 are redesignated as §§ 923.131 determined in accordance with § 923.93 policies and requirements of the Act through 923.135 in the subpart. of these regulations. Allowability of and these guidelines shall be approved § 923.131 [Amended] costs for non-profit organizations will be by the NOAA Grants Officer, upon determined in accordance with OMB recommendation by the Assistant 8. Redesignated § 923.131 is amended Circular A–122: Cost Principles for Non- Administrator, assuming available by replacing the two references to ‘‘this Profit Organizations. Allowability of funding. part’’ in the introductory text with costs for institutions of higher education (b) Should an application be found references to ‘‘this subpart.’’ will be determined in accordance with deficient, the Assistant Administrator OMB Circular A–21: Cost Principles for will notify the applicant in detail of any § 923.133 [Amended] Educational Institutions. deficiency when an application fails to 9. Redesignated § 923.133 is amended (c) In the grant application, the conform to the requirements of the Act by changing the references to 15 CFR applicant must describe clearly and or these regulations. Conferences may 928.3 and 928.4 in paragraph (b)(9), the briefly the activities that will be be held on these matters. Corrections or reference to § 928.2(d) in paragraph undertaken with grant funds in support adjustments to the application will (c)(2), and the reference to § 928.3(c)(4) of implementation and administration provide the basis for resubmittal of the in paragraph (d)(2), as references to of the management program. This application for further consideration §§ 923.133 and 923.134, § 923.132(d) description must include: and review. and § 923.133(c)(4), respectively. 9762 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Proposed Rules

§ 923.134 [Amended] Management, Coastal Programs paragraph (a) as references to 10. Redesignated § 923.134 is Division, 1305 East-West Highway (N/ §§ 923.126(b) and 923.121(b), amended by changing the reference to ORM3), Silver Spring, MD 20910’’, and respectively, 15 CFR 928.3(b)(7) in paragraph (b)(3) as (3) by changing the reference to 15 (2) by changing the reference to 15 a reference to § 923.133(b)(7). CFR 932.5(a) in paragraph (d) and the CFR 923.95(d)(3)(ii) in paragraph reference to 15 CFR 932.5(b) in (b)(1)(iii) as a reference to § 923.135 [Amended] paragraph (e), as references to § 923.94(d)(3)(ii), 11. Redesignated § 923.135 is §§ 923.125(a) and 923.125(b), (3) by changing the references to 15 amended as follows: respectively. CFR 932.5(a) and 15 CFR 932.5(b) in (1) by changing the reference to 15 paragraph (b)(4) as references to § 923.124 [Amended] CFR 928.5(a)(3) in paragraph (a)(2)(i) as §§ 923.125(a) and 923.125(b), a reference to § 923.135(a)(3), 16. Redesignated § 923.124 is respectively, (2) by changing the reference to 15 amended as follows: (4) by changing the reference to 15 CFR 928.4 in paragraph (a)(2)(ii) as a (1) by changing the reference to 15 CFR 932.3(a) in paragraph (b)(7) as a reference to § 923.134, CFR 932.1(b) and 15 CFR 927.1(c) in reference to § 923.123(a), (3) by changing the reference to 15 paragraph (d)(1)(i) as references to (5) by changing the references to 15 CFR 923.81(c) in paragraph (a)(3)(i)(G) §§ 923.121(b) and 923.110(c), CFR 932.5(a) and 15 CFR 932.4(d) in as a reference to 15 CFR 923.81(a), and respectively, paragraph (b)(8) as references to (4) by changing the four references to (2) by changing the reference to 15 §§ 923.125(a) and 923.124(d), 15 CFR 928.5(a)(2) in paragraphs CFR 932.4(d) in paragraph (d)(1)(iii) as respectively, (b)(2)(i) and (iii) as references to a reference to § 923.124(d), (6) by changing the references to 15 § 923.135(a)(2). (3) by changing the reference to 15 CFR 932.5(a) and 15 CFR 932.5(b) in CFR 932.8 in paragraph (d)(3) as a paragraph (c)(3) as references to PART 932Ð[REDESIGNATED AS PART reference to § 923.128, 923, SUBPART K] (4) by changing the references to 15 §§ 923.125(a) and 923.125(b), CFR 932.4(d), 15 CFR 932.3(d) and 15 respectively, 12. Part 932 is redesignated as (7) by changing the references to 15 Subpart K of Part 923, and §§ 932.1 CFR 932.5(b) in paragraph (e) as references to §§ 923.124(d), 923.123(d), CFR 932.5(a) and 15 CFR 932.4(d) in through 932.8 are redesignated as paragraph (c)(4) as references to §§ 923.121 through 923.128 in the and 923.125(b), respectively, and (5) by changing the references to 15 §§ 923.125(a) and 923.124(d), Subpart. respectively, and 13. Redesignated § 923.121 is CFR 932.4(b), 15 CFR 932.4(c), 15 CFR 932.4(d) and 15 CFR 932.4(e) in (8) by changing the reference to amended by revising paragraph (h) to subpart J of 15 CFR part 923 in read as follows: paragraph (f) as references to §§ 923.124(b), 923.124(c), 923.124(d) paragraph (c)(5) as a reference to subpart § 923.121 General. and 923.124(e), respectively. I of 15 CFR part 923. * * * * * § 923.127 [Amended] (h) All application forms are to be § 923.125 [Amended] 20. Redesignated § 923.127 is requested from and submitted to: 17. Redesignated § 923.125 is amended as follows: National Oceanic and Atmospheric amended as follows: Administration, Office of Ocean and (1) by changing the reference to 15 (1) by changing the reference to Coastal Resource Management, Coastal CFR 932.6(b)(1) in paragraph (a)(1)(v) as subpart J of 15 CFR part 923 in Programs Division, 1305 East-West a reference to § 923.126(b)(1), paragraph (a) as a reference to subpart Highway (N/ORM3), Silver Spring, MD (2) by changing the reference to 15 I of 15 CFR part 923, 20910. CFR 932.3(e) in paragraph (b)(2)(ii) as a (2) by changing the reference to 15 14. Redesignated § 923.121 is further reference to § 923.123(e), CFR 932.6(b)(1) in paragraph (b) as a amended as follows: (3) by changing the reference to 15 reference to § 923.126(b)(1), (1) by changing the references to ‘‘this CFR 932.3(f) in paragraph (b)(2)(iii) as a (3) by changing the reference to part’’ in paragraphs (a) and (b) with reference to § 923.123(f), and subpart J of 15 CFR part 923 in references to ‘‘this subpart’’, and (4) by changing the references to paragraph (c) as a reference to subpart (2) by changing the reference to 15 § 932.5(a) and 15 CFR 932.5(b) in I of 15 CFR part 923, and CFR 932.8 in paragraph (b)(1) as a paragraph (c) as references to (4) by changing the reference to 15 reference to § 923.128. §§ 923.125(a) and 923.125(b), CFR 932.6(c)(2) in paragraph (e) as a respectively. reference to § 923.126(c)(2). § 923.123 [Amended] 18. Redesignated § 923.125 is further 15. Redesignated § 923.123 is amended by removing footnote two in PART 933ÐCOASTAL ZONE amended as follows: paragraph (a)(1)(ii). MANAGEMENT RESEARCH AND (1) in paragraph (a), by replacing TECHNICAL ASSISTANCE [REMOVED] ‘‘routine program implementation’’ with § 923.126 [Amended] ‘‘routine program change’’, 19. Redesignated § 923.126 is 21. Part 933 is removed. (2) in the footnote in paragraph (b), amended as follows: * * * * * the address is revised to read: ‘‘Office of (1) by changing the references to 15 [FR Doc. 96–5237 Filed 3–8–96; 8:45 am] Ocean and Coastal Resource CFR 932.6(b) and 15 CFR 932.1(b) in BILLING CODE 3510±08±M federal register March 11,1996 Monday Mine Ventilation;FinalRule Safety StandardsforUndergroundCoal 30 CFRPart75 Mine SafetyandHealthAdministration Department ofLabor Part III 9763 9764 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations

DEPARTMENT OF LABOR a necessary ventilation safety protection views expressed at these meetings and was either not in place or not followed, gave serious consideration to these Mine Safety and Health Administration with disastrous results. Examples issues. Some of these comments became include the explosion at the Monogah the basis for portions of this rulemaking. 30 CFR Part 75 mine in 1907 in which 362 miners Internal discussions of MSHA’s RIN 1219±AA11 perished, the worst mining disaster in experience with the implementation of the history of the United States. Other the rule led MSHA to include still other Safety Standards for Underground more recent examples include the issues in this rulemaking. In fact, MSHA Coal Mine Ventilation Farmington disaster in 1968 in which 78 stayed the application of two additional miners died, the Scotia mine in 1976 provisions in response to potential AGENCY: Mine Safety and Health where 26 died, Grundy No. 17 in 1981 problems pointed out by interested Administration, (MSHA) Labor. where 13 died, Wilberg in 1984 where parties. These stayed provisions relate ACTION: Final rule. 27 died, Pyro in 1989 with 10 deaths to actions following the stoppage of the and Southmountain in 1992 where 8 main mine fan with persons SUMMARY: This final rule revises the miners died. In 1969 and again in 1977, underground and to a potential fire Mine Safety and Health Congress recognized the hazards of hazard from the enclosure of Administration’s (MSHA’s) existing improper ventilation and established a compressors in a noncombustible safety standards for ventilation of role for the government in addressing structure. MSHA addresses these issues underground coal mines. After ventilation hazards. MSHA, with the in the rulemaking. Once MSHA decided publication of the existing standards, cooperation of labor and industry, has that it was going to proceed with a the U.S. Court of Appeals in the D.C. met with a large measure of success in rulemaking to address these issues, it Circuit stayed the application of one reducing the accidents, injuries and added other provisions to the package to standard and MSHA stayed two fatalities that have resulted from poor allow all parties an opportunity to standards. The rule revises these stayed ventilation practices. For example, comment where they expressed the provisions, revises or clarifies other explosions and fires in a 29 year period view that they had insufficient provisions in the rule and includes from 1940 to 1968 resulted in the deaths opportunity to comment on the existing some new provisions. The provisions of of 491 miners. Since the passage of the rule (The comprehensive rule that was the final rule are expected to decrease Federal Coal Mine Health and Safety published in the Federal Register on the potential for fatalities, particularly Act of 1969, 178 explosion and fire May 15, 1992). The rule MSHA accidents which can result in multiple related deaths have occurred. While proposed also included issues raised by deaths, and to reduce the risk of injuries MSHA recognizes that this number is parties in litigation challenging the and illnesses in underground coal still unacceptable, the significant existing rule. MSHA anticipates that the mines. For the convenience of the reduction in loss of life cannot be final rule should resolve matters reader, MSHA has published the full ignored. To a great extent, the included in the challenge raised by the text of the ventilation standards for framework for this success has been the litigation of the existing rule. Finally, in underground coal mines in this implementation of effective ventilation an effort to address confusion that document. standards. seemed to exist with certain provisions EFFECTIVE DATE: The final rule is Preventing recurrence of disasters like of the existing ventilation rule effective June 10, 1996. those of the past remains the top promulgated in May of 1992, MSHA FOR FURTHER INFORMATION CONTACT: priority of MSHA. MSHA believes that either proposed clarifications to the Patricia W. Silvey, Director, Office of a serious commitment by management, existing rule or discussed the affected Standards, Regulations and Variances, labor, and government is necessary to provisions in the preambles to the MSHA, phone 703/ 235–1910; fax 703/ develop effective, yet reasonable and proposed and final rules in an effort to 235–5551. practical regulations that protect the clarify them. safety and health of our nation’s miners. The issues in the rulemaking are SUPPLEMENTARY INFORMATION: MSHA anticipates that this rulemaking, complex and highly technical. I. Background which revises portions of the Comments to the proposal (published comprehensive ventilation rule on May 19, 1994, 59 FR 26536) and The mining of coal underground has published in 1992 (57 FR 20868, May comments following the public hearings historically been recognized as one of 15, 1992) and adds new provisions, will (held in September and October 1994, in the more hazardous occupations in the bring the coal mining industry closer to Price, Utah, Logan, West Virginia, and world. It is a universally recognized that objective. Washington, Pennsylvania) were principle of underground coal mine The comprehensive 1992 ventilation extensive. One party alone submitted safety that there must be proper rulemaking was closely followed by over two thousand pages of written ventilation of the mine. Indeed, no interested industry and labor groups, comments and over 275 exhibits. Not aspect of safety in underground coal who frequently expressed divergent only were the safety issues involved mining is more fundamental than views on approaches to resolving complex, but in many cases, MSHA’s proper ventilation. A basic tenet of ventilation issues. Certain commenters task was made more difficult by hearing mining safety states that ventilation exercised their right to challenge the diametrically opposed viewpoints. must be sufficient: (1) To dilute, render rule and the U.S. Court of Appeals for harmless and carry away the hazardous the D.C. Circuit Court stayed one Major Improvements in the Final Rule components of mine air, such as provision relating to oxygen and carbon The final rule provides a number of potentially explosive methane; and (2) dioxide in the bleeder entries. MSHA significant improvements to the existing to provide necessary levels of oxygen to held a series of informational meetings ventilation regulations. For example, the the miners’ working environment. around the country during which it final rule provides for the electronic Ventilation safety programs are explained the application of the rule. In storage of records. A major portion of designed around this philosophy. The so doing, MSHA listened to many the mining industry has this capability history of mining is replete with tragic questions about the implementation of at the present time through computer incidents where one aspect or another of the rule. MSHA was sensitive to the technology at the mine site. Electronic Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9765 record retention can reduce the cost of mining conditions and practices that using belt air to ventilate the working storage and maintenance of records and impact the plan approval. face on the rulemaking agenda for provide for ease in access and transfer Other safety enhancements from the development of a proposed rule. Thus, of information without reducing the existing rule include: requiring the use ‘‘belt air’’ is not addressed in this protection afforded miners. of extendable probes to conduct rulemaking. Additionally, having records methane tests at deep cuts; requiring on- MSHA has also received comments electronically stored can facilitate trend shift examinations on other than coal and recommendations on a number of analysis, allowing for earlier detection producing shifts; and accepting a other issues that are outside the scope and correction of potential hazards. performance test to determine minimum of this rulemaking. For example, much The final rule also requires pressure dimensions at certain locations in of the extensive testimony directed recorders or an option of the use of a fan escapeways. toward the use of atmospheric monitoring system on main mine fans at Finally, the final rule clarifies existing monitoring systems was beyond the all mines. This represents a major step regulations that were considered vague issues dealt with in this rulemaking. toward monitoring the mine fans by some parties or were misunderstood. Also, recommendations for the use of controlling the ventilation at the mines For example, the final rule provides that transparent or translucent material for and helps assure that the miners have certified pumpers can conduct their check curtains exceed the scope of this uncontaminated air at all times. The own examination rather than requiring rulemaking. The final rule, therefore, final rule also provides for methane the examination to be conducted during does not include these testing at the face during mining the preshift segment of the mining recommendations. operations. This technology is operation. Commenters to the proposal especially useful for taking methane To serve the interests of the mining frequently included a discussion of tests during extended cut mining community, MSHA has republished the various accident reports, most written operations. The methane testing full text of subpart D of 30 CFR part 75 by MSHA. In addition, there were evaluates air flow to the face to as it will read upon promulgation of this discussions of other documents related determine that methane is sufficiently rule. to specific incidents or mines, such as diluted, rendered harmless, and carried MSHA Internal Review Reports or away so as to reduce or eliminate the II. Discussion of the Final Rule specific mine plans. In some cases, the hazards associated with methane A. General Discussion documents were submitted for inclusion liberated during mining operations. in the record. In other cases, the Other improvements in the rule In developing the final rule, MSHA documents were merely referenced. include revisions to the three stayed has made every effort to address the MSHA is independently aware of the provisions in the existing rule. Air comments received during the extensive history of ventilation related quality levels for oxygen and carbon rulemaking, and to develop practical explosions, and has considered this dioxide in bleeders are established to requirements for real safety problems. information. Where appropriate, this protect mine examiners who are Both the costs and the benefits of each information is discussed in the section- required to travel to determine if the standard were also considered. In by-section analysis in the preamble of bleeders are functioning properly. A addition, each standard, as well as this rule. MSHA is aware that accidents second stayed provision is revised to revisions and deletions, was carefully can result from or be contributed to by limit the use of transportation considered against the statutory the violation of one or more of the equipment during the withdrawal of requirement that nothing in the final existing standards. In that context, miners after an unintentional fan rule shall reduce the protection afforded MSHA has found that the solution is not stoppage. This revision to the existing miners by an existing mandatory health necessarily to promulgate another rule reduces the likelihood of an or safety standard. Where appropriate, standard. (The offender may be as likely ignition from methane that can MSHA has provided for a phase in to ignore it as well.) Instead, for accumulate during the fan stoppage. period to allow mine operators time to demonstrated noncompliance with The third stayed provision is revised to effectively plan and implement the existing standards, the solution is often allow the option of attending rather than necessary changes. found in increased emphasis, training, housing compressors in a MSHA carefully analyzed the or enforcement, rather than in the noncombustible enclosure. The hazards comments received and responded in promulgation of additional rules. associated with the operation of many instances by revising the Several sections of the final rule deal compressors in underground mines proposed requirements. For example, with requirements for sections and areas were demonstrated at the Wilberg mine unlike the proposal, the final rule does where mechanized mining equipment is disaster, where 27 people lost their lives not require the second level being installed or removed. These as a result of a compressor fire. countersigning of records; allows the provisions, which were included in the This final rule provides for an alert use of nonpermissible equipment when existing standard published in May and alarm device to be located outside conducting an examination upon restart 1992, were reproposed without change of noncombustible structures housing of a fan following unintentional fan for the purpose of receiving additional electrical installations. The alert and stoppages, and requires pressure comments from all interested parties. alarm assures that miners are made recording devices or an option of the One commenter cited the William aware of a problem in time to extinguish use of a fan monitoring system to be Station mine explosion as evidence of a fire or safely evacuate an area or the used on all main mine fans. the need for these requirements. Other mine as necessary for safety. Another Several commenters strongly urged commenters reiterated an earlier change to the existing rule involves MSHA to proceed in this rulemaking on objection that the standards were miners or their representatives in the the issue of using air coursed through procedurally flawed. MSHA does not mine ventilation plan approval process the belt entries (‘‘belt air’’) to ventilate agree that these provisions are before the plan is submitted for the working face. MSHA has completed procedurally flawed and notes that each approval. This provides for the its consideration of the Report of the of these standards was reproposed and opportunity for input from those having Secretary’s Advisory Committee Report not simply restated as part of this first hand knowledge in the particular on Belt Air and has placed the issue of rulemaking. Comments relative to the 9766 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations technical merits of an individual dates and times, machine-numbered as appropriate to the conditions and standard are addressed in the section- pages are unnecessary. electronic storage system used at the by-section portion of this preamble. Some record books that are currently mine. Upon reconsideration, MSHA has in use and acceptable under the existing concluded that an additional specific Recordkeeping Requirements in the standards are vulnerable to misuse or requirement would be an unnecessary Final Rule manipulation. For example, under the burden and has not included it in the The final rule revises the existing rule, records could be kept in rule. recordkeeping requirements for several a spiral notebook or even a loose leaf A variety of comments were received standards. The standards affected are binder. The final rule addresses this regarding the countersigning of certain § 75.310, Installation of main mine fans; issue by requiring that records be made records by the mine foreman, and the § 75.312, Main mine fan examinations in books that are secure and not time frame permitted for countersigning. and records; § 75.342, Methane susceptible to alteration. Examples of The final rule adopts the proposal that monitors; § 75.360, Preshift books that are considered by MSHA to the mine foreman must countersign the examination; § 75.362, On-shift be secure and not susceptible to record by the end of the mine foreman’s examination; § 75.363, Hazardous alteration include, but are not limited next regularly scheduled working shift. conditions; posting, correcting and to, record books that are currently The mine foreman is the person most recording; § 75.364, Weekly approved by state mine safety agencies, responsible for the day-to-day operation examinations; and § 75.370, Mine and permanently bound books. of the mine. It is essential for the health ventilation plan; contents. Examples of books that would not be and safety of the miners that the mine Generally, the final rule requires considered books that are secure and foreman be fully aware of the examiners to record the results of not susceptible to alteration include information contained in examination methane tests as a percent of methane loose leaf binders and spiral note books. reports so as to be able to allocate Several commenters advocated the detected; records must be made in a resources to correct safety problems as use of computers for the storage and book that is secure and not susceptible they develop. Allowing until the end of retrieval of records. In support of this to alteration, or electronically in such a the mine foreman’s next regularly approach, the commenters cited manner as to be secure and not scheduled working shift to countersign computer records as being highly susceptible to alteration; and records the reports assures that the mine accurate, requiring less storage space must be countersigned by the mine foreman is aware of the results of the and facilitating data retrieval. Other examination in sufficient time to initiate foreman by the end of the mine commenters expressed concern for the corrective actions. In response to foreman’s next regularly scheduled security of records stored electronically, commenters, the final rule allows a working shift. These rules are intended and offered examples of breaches of mine official equivalent to a mine to assure that examination results are security in record systems at banks and foreman to countersign the records. maintained and made available, and national security installations as Some commenters suggested that the that the appropriate level of mine evidence to support this concern. time for countersigning is unnecessarily management is made aware of Electronic storage of information and long, and that the final rule should conditions or problems requiring assessing it through computers is more restore a previous requirement that attention. The revisions also help assure and more a common business practice countersigning be completed the integrity of records and enable mine generally and in the mining industry. ‘‘promptly.’’ The term ‘‘promptly’’ management to review the quality of the Recognizing this trend, the final rule involves a level of ambiguity that is examinations. MSHA intends the term permits the use of electronically stored eliminated by specifying the time for ‘‘secure and not susceptible to records provided they are secure and countersigning records. The record does alteration’’ when applied to electronic not susceptible to alteration, are able to not show that the time set by the final storage to mean that the stored record capture the information and signatures rule would expose miners to safety or cannot be modified. One example of required, and are accessible to the health risks. Also, hazardous conditions acceptable storage would be a ‘‘write representative of the miners and the are required to be corrected once, read many’’ drive. representatives of the Secretary. Based immediately. Numerous comments were received on the rulemaking record, MSHA Commenters suggested that the term both supporting and opposing the believes that electronic records meeting ‘‘mine foreman’’ be replaced by a proposed recordkeeping requirements. these criteria are practical and as ‘‘certified person responsible for MSHA reviewed and fully considered reliable as traditional records. ventilation of the mine or his designee.’’ each of these comments. The proposal In the preamble to the proposal, Another commenter suggested that the would have required that records be MSHA expressed its intent to require a record could be countersigned by the kept in either state-approved books or in hard copy printout of the information mine foreman or any other mine official bound books with sequential machine- stored electronically to be available responsible for the day-to-day operation numbered pages. Commenters argued within 1 hour of a request, and to of the mine. Commenters stated that that under the existing rule records may require backing up of the information some operations no longer use the terms be falsified or altered. Commenters also within 24 hours. Commenters objected ‘‘mine foreman’’, ‘‘mine manager,’’ or stated that accident investigations have to making the records available within ‘‘superintendent.’’ To provide for demonstrated the need for improved 1 hour as being too stringent and alternative management titles, the final records. Other commenters asserted that unnecessarily requiring a person to be rule incorporates the phrase ‘‘or the proposed requirement for bound on duty at all times. MSHA agrees that equivalent mine official.’’ books with sequential machine- the requirement would be overly Numerous comments were received numbered pages adds an economic burdensome and has not included it in regarding the requirement of the burden for the majority of compliant the final rule. Similarly, MSHA has not proposal for second level countersigning operators and another way should be included a specific requirement for by the mine superintendent, mine found, ‘‘to foil the very few who are backing up the computer data. The final manager, or other mine official to whom recalcitrant.’’ Other commenters stated rule requires that the records be secure. the mine foreman is directly that since all records currently include This encompasses backing up the data accountable within 2 scheduled Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9767 production days thereafter. Commenters B. Section-by-Section Discussion necessary ventilation can be objecting to the proposal stated that The following section-by-section maintained. Monitoring of the fans to higher level management should be able portion of the preamble discusses each assure that they are operating properly to delegate responsibility, noting that provision affected. The text of the final is an element of this protection. The often this level of official has more than rule is included at the end of the final rule for § 75.310 revises paragraphs (a) and (c) of the existing rule. The one mine to oversee and may not document. necessarily be available within the revisions address: (1) automatic signals proposed two days. One commenter Section 75.301 Definitions for fan stoppage, (2) pressure recording suggested allowing three days for The final rule revises the definition of devices, and (3) main mine fan second level countersigning in order to return air to permit operators to monitoring systems. Paragraph (a)(3) of § 75.310, like the recognize that such an official often has designate certain air courses as return proposal, requires each main mine fan numerous obligations and to allow for air courses for the purpose of ventilating to be equipped with an automatic normal absences. Other commenters structures, areas or installations that are device that gives a signal at the mine simply recommended that the second required to be ventilated to return air when the fan either slows or stops. The level countersigning be deleted. courses and for ventilating seals when Another commenter stated that some existing rule does not specify where the the air in the air course will not be used states hold the mine foreman legally signal is to be given. Commenters to ventilate working places. Thus, an responsible, that the mine foreman supported the proposal stating that a operator wishing to split air off of an should correct hazardous conditions signal alarming at a location away from immediately and withdraw miners as intake for the purpose of ventilating the mine site would rely on overland appropriate, and that the second level shops, electrical installations, or for communication lines to transmit the countersigning would add no measure other purposes, could designate the air signal, with the person receiving the of safety. One commenter noted that in course into which the split is directed signal then notifying the mine. These many cases the mine manager or as a return provided the air in the air overland communication lines are superintendent is not a certified course would not be used to ventilate subject to weather and other potential individual and long periods may elapse working places or other locations, sources of damage, which could result during which this person does not go structures, installations or areas in a disruption of the communication. underground. In these instances, the required to be ventilated with intake air. Other commenters objected to the person countersigning would have little Commenters generally agreed with the proposal, however, stating that the or no understanding or first hand change. However, one commenter ability of a mine operator to consolidate knowledge of the conditions in the expressed the concern that air currents monitoring of several mines at one mine. Commenters stated that ventilating electrical installations could single location is a very efficient and countersigning by the mine foreman is be coursed to the conveyor belt entry cost-effective practice and should not be adequate notification to the operator of before being coursed to a redesignated arbitrarily prohibited. Further, they any deficiency and that the mine return air course, and thus not vented stated that there would be absolutely no foreman has the necessary resources and directly to a return. The commenter delay in contacting the miners from this responsibility to correct any situation expressed the opinion that because the central location should a fan noted in the records. air is not vented directly to a return malfunction occur. For clarity and for Other commenters supported the under this scenario, the rule would not increased safety, the final rule requires proposal noting that second level permit this practice. MSHA does not that the signal be given at the mine. countersigning would provide an agree with the commenter’s MSHA believes that in the case of a fan additional level of accountability. These interpretation and the final rule, stoppage, this will assure more timely commenters also suggested that in the consistent with § 75.340, permits this notice to miners, and hence, a more event of a major accident, the second practice. effective safety response. The level countersigning requirement would MSHA does not anticipate that requirement that the signal be given at be important in fully assessing the operators will need to redesignate air a surface location at the mine does not contributing causes. courses on a routine basis. When preclude the signal from also being MSHA has determined that questions arise as to the need to given elsewhere, such as at a central countersigning by the mine foreman or redesignate an intake as a return, the office, as long as it is given at the mine. equivalent mine official, as specified in operator should contact the local MSHA Paragraph (a)(3) of § 75.310 requires the final rule, provides the means office. In order that all interested that a responsible person, designated by necessary to detect and correct persons are made aware when an air the operator, shall always be at a surface developing hazards in a mine. course is redesignated, the final rule location at the mine where the signal Countersigning by the mine foreman requires in § 75.372, Mine ventilation can be seen or heard while anyone is assures the necessary notification to an map, that such redesignated air courses underground. In addition, the official with the knowledge of the day- be shown on the mine’s ventilation responsible person must be provided to-day operation of the mine having the map. with two-way communication with authority to maintain the mine in a safe working sections and with other Section 75.310 Installation of Main operating condition. Agency experience established locations where persons are Mine Fans has demonstrated that higher level mine normally assigned to work. Commenters officials commonly lack hands-on The main mine fans serve a vital role supported the proposal stating that the involvement or in-depth knowledge of in providing ventilation to prevent changes provide clarification and the specific conditions underground or methane accumulations and possible specificity. Other commenters agreed how the highly detailed ventilation explosions as well as providing miners with the proposed concept of two-way rules impact upon those conditions. with a healthful working environment. communication but felt that the Therefore, countersigning by a mine Section 75.310 is primarily directed at wording, ‘‘established locations where official at a higher level does not assure protecting the main mine fans from fires persons are normally assigned to work’’ any additional level of safety and and damage in the event of an is ambiguous and subject to imposes an unnecessary burden. underground explosion so that misinterpretation. Some commenters 9768 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations objected to the proposed requirement mines be required to operate continually following mine explosions and during stating that (1) it is redundant of and further suggested that all main mine more routine ventilation survey work § 75.1600 Communications; (2) properly fans be equipped with pressure has shown that the accuracy to which a the subject of a separate rulemaking recording devices and main mine fan 7-day, circular recording chart of the under § 75.1600 or; (3) it is vague, monitoring systems. In support of this type normally used can be read is on the ambiguous, or subjective. Section suggestion, the commenter stated that order of several minutes. MSHA would 75.1600 only requires two-way continuous fan pressure recording expect that the polling frequency for a communication between the surface and devices would have a positive impact pressure recording device used in lieu working sections and does not identify on safety at these operations. Such of a pressure recorder would be no more that this communication must be devices will provide necessary than one (1) minute. provided to a location where a person information to operators and miners at MSHA received a number of can see or hear the fan alarm signal. operations affected by this change. comments in response to the proposed Commenters suggested that the MSHA has not included one requirement in paragraph (a)(4) that requirement be revised to more commenter’s suggestion that main mine when a pressure recording device other specifically quantify locations where fan monitoring systems be required for than a circular pressure recorder is persons are normally assigned to work. all main mine fans. While MSHA used, a hard copy of the continuous MSHA recognizes that, as proposed, the supports and encourages the use of this graph or chart be generated at not more standard might result in advanced technology the Agency does than 7-day intervals. Comments ranged misinterpretation and the final rule has not believe that it is appropriate to from requiring daily printouts to not been reworded to read, ‘‘* * * two-way mandate it for all mines because daily requiring any printout except when communication with working sections fan examinations coupled with pressure requested by an Authorized and work stations where person(s) are recording devices have proved to be Representative of the Secretary. In routinely assigned to work for the adequate over the years. Also, MSHA response to these comments, the final majority of a shift.’’ does not adopt a suggestion that main rule retains the requirement for a hard Some, but not all, outby areas where mine fans at all mines be required to copy of the continuous graph or chart be two-way communication would be operate continuously. generated at not more than 7-day required by the final rule include; intervals. In light of MSHA’s stated Paragraph (a)(4) of the final rule shops, attended belt transfer points, position to permit records of requires that when a pressure attended rail car loading points, and examinations to be stored electronically, attended underground coal storage bins monitoring device is used in lieu of a the final rule permits the record of main and hoppers. It is not intended that this pressure recording device, it must mine fan pressure to be stored communications capability be provided produce a continuous graph or chart of electronically provided the record is in areas where secondary roof support is the fan pressure. A hard copy of the secure and not susceptible to alteration. being installed or where rock dust is continuous graph or chart must be Paragraph (c) of § 75.310 specifies being applied, or at unattended printed at regular intervals of not more requirements for main mine fan underground pumps, or in areas such as than 7 days. This provision permits the monitoring systems if used under return air courses, bleeder entries and use of relatively recent advances in § 75.312. Commenters suggested that the conveyor belt haulageways other than at technology for monitoring main mine requirements were repetitive, confusing, belt transfer points. The requirement fan pressure provided a continuous and would discourage mine operators that two-way communication be record of the fan pressure is provided. from using monitoring systems which provided to work stations where In the proposal, MSHA specifically could provide more protection. MSHA persons are routinely assigned to work solicited comments as to an appropriate believes that the requirements in for the majority of a shift is intended to polling frequency that would provide a paragraph (c) are necessary to effectively help assure that these persons receive record that is substantially continuous. monitor a fan, particularly when these prompt notification of fan stoppages. In response to this request, one systems are used in lieu of daily fan Because these work stations are off the commenter proposed that a polling examinations. working section, a lack of frequency of two seconds is necessary to Paragraph (c)(3) of § 75.310 of the communication capabilities could result take full advantage of available proposal would have required that main in delays in notification and therefore technology. This commenter stated that mine fan monitoring systems provide, delays in egress from the mine. continuously means constant or on demand, a printout of the monitored Paragraph (a)(4) of the existing rule unbroken and that a continuous record parameters, including the mine requires that main mine fans be should require a polling frequency of ventilating pressure. Several equipped with a pressure recording not greater than 2 seconds. Another commenters objected to the requirement device or with a main mine fan commenter, an instrument that a printout be provided ‘‘on monitoring system but exempts from manufacturer, suggested that a one demand.’’ As interpreted by these this requirement mines permitted to minute sampling interval is definitely commenters, this standard would shut down main mine fans under feasible. Main mine fan monitoring, require that the operator provide a § 75.311. when used, is often part of a more printout at any time it is requested. As The final rule eliminates this comprehensive mine-wide atmospheric explained in the preamble to the exemption and requires that all main monitoring system (AMS), and to proposal, ‘‘* * * the monitoring system mine fans be equipped with a pressure require that the fan be polled every two would be required to have the capability recording device or a main mine fan seconds could delay the polling of other of providing (emphasis added), on monitoring device. For mines not important sensors. Additionally, demand, a printout of the information currently required to have such a because these pressure monitoring being monitored. This capability is device, MSHA has provided for a 1 year devices are intended to be used in lieu intended to facilitate the review of the phase in period to allow mine operators of the traditional circular pressure information by mine management time to effectively plan and implement recorder they must provide a required in § 75.312(b).’’ The the necessary changes. One commenter substantially equivalent record. commenters misinterpreted the purpose suggested that all main mine fans at all Experience by MSHA engineers for the standard. MSHA recognizes, Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9769 however, the merits of being able to being applied, or at unattended and corrective action. In addition, obtain a printout within a reasonable underground pumps, or in areas such as MSHA has 25 years of experience with period of time. Therefore, the final rule return air courses, bleeder entries and the phrase ‘‘unusual variances in mine requires that a main mine fan conveyor belt haulageways other than at ventilation pressure’’ and is unaware of monitoring system used to satisfy the belt transfer points. The requirement significant difficulties with this requirements of § 75.312 provide a that two-way communication be terminology. printout of the monitored parameters, provided to work stations where Commenters questioned what including the mine ventilating pressure, persons are routinely assigned to work constitutes an ‘‘electrical or mechanical within a reasonable period, not to for the majority of a shift is intended to deficiency’’ for the purposes of § 75.311. exceed the end of the next scheduled help assure that these persons receive The purpose of the standard is to assure shift during which miners are prompt notification of fan stoppages or that a problem with main mine fans is underground. other problems with the fan that might corrected promptly and that the proper Paragraph (c)(5) of § 75.310 requires require withdrawal of miners. Because persons are notified that the problem that two-way communication be these work stations are off the working exists. The types of electrical or provided between a surface location at section, a lack of communication mechanical deficiencies requiring action the mine where the signals from the fan capabilities could result in delays in under paragraph (d) are those that can monitoring system can be seen or heard notification and therefore delays in interfere with mine ventilation. In and working sections and other egress from the mine. addition, MSHA has 25 years of established locations where persons are experience with the phrase ‘‘electrical normally assigned to work for the Section 75.311 Main Mine Fan and mechanical deficiencies’’ and is, majority of the shift. Except for minor Operation again, unaware of any significant editorial changes, this requirement is The main mine fan provides the difficulties with the use of this the same as the proposal. Comments on pressure that causes air to move through terminology during this time frame. this proposal were the same as the mine to dilute and carry away Commenters also addressed the comments on proposed paragraph (a)(3). explosive and toxic gases, dusts and proposal that the ‘‘mine superintendent, Several commenters supported the fumes. As such it is the most important assistant mine superintendent, or mine proposal stating that the changes part of the ventilation system. Section foreman’’ be notified immediately when provide clarification and specificity. 75.311 requires fans to be continuously an unusual variance in mine ventilation Other commenters agreed with the operated to provide constant ventilation pressure is observed, or when an proposed concept of two-way to underground areas and specifies electrical or mechanical deficiency in a communication but felt that the precautions for planned fan stoppages. main mine fan is detected. The final wording, ‘‘established locations where It also addresses the repair of main mine rule does not retain the mine persons are normally assigned to work’’ fans, monitoring of fan signal devices on superintendent or the assistant mine is ambiguous and subject to the surface, and protection against fires superintendent as mine officials to be misinterpretation. Some commenters around fans and intake air openings. notified. Commenters stated that this objected to the proposed requirement The final rule revises paragraph (d) of provision provides a measure of safety stating that (1) it is redundant of § 75.311, which addresses the to the miners by requiring that specific § 75.1600 Communications; (2) properly notification of mine officials of any mine managers be notified of possible the subject of a separate rulemaking unusual variance in mine ventilation main mine fan problems, while the under § 75.1600 or; (3) it is vague, pressure and requires the prompt repair existing standard specifies that such a ambiguous, or subjective. Section of electrical or mechanical deficiencies. situation must be investigated. Other 75.1600 only requires two-way The final rule requires immediate commenters, however, suggested that communication between the surface and notification and the prompt institution the persons identified for notification working sections and does not identify of corrective action or repairs. under the proposal may not be the most that this communication must be Commenters suggested deletion of the qualified to handle the problem. They provided to a location where a person word ‘‘unusual’’ maintaining that this also indicated that the notification can see or hear the fan alarm signal. term makes the requirement vague and requirement could unnecessarily delay Commenters suggested that the subject to different interpretations. appropriate action by other responsible requirement be revised to more These commenters suggested persons. The commenters further stated specifically quantify locations where substituting the phrase, ‘‘that could that the mine superintendent or persons are normally assigned to work. materially affect the safety and health of assistant mine superintendent may not MSHA recognizes that, as proposed, the persons in the mine’’ to describe the be at the mine and that a certified standard might result in type of pressure variance that would person would be in charge who should misinterpretation and the final rule has require action. In making this be permitted to take the appropriate reworded the proposal to read, ‘‘* ** recommendation, the commenters cited action. The proposed requirement that two-way communication with working similar language in existing certain mine managers be notified sections and work stations where § 75.324(a)(1) that, according to the immediately was not intended to person(s) are routinely assigned to work commenters, is understood throughout require that these individuals personally for the majority of a shift.’’ the coal mining community. Section take the necessary actions to respond to Some, but not all, outby areas where 75.324(a)(1) concerns alterations of the the problem with the main mine fan. two-way communication would be main ventilation air current or any split Neither was it intended that they be required by the final rule include; of the main air current. The final rule notified of such a problem, to the shops, attended belt transfer points, does not adopt this recommendation. exclusion of all others. The objective of attended rail car loading points, and Minor fluctuations in fan operating the rule is to assure that the appropriate attended underground coal storage bins pressure are normal; however, unusual actions are taken as soon as possible. and hoppers. It is not intended that this changes can be indications of changes in Additionally, notification of specified communications capability be provided fan operation or changes underground, mine officials is intended to assure that in areas where secondary roof support is such as roof falls or loss of ventilation those persons who are responsible for being installed or where rock dust is controls, that require prompt attention the mine are aware of the problem. The 9770 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations final rule, therefore, retains the developing and correct these problems is in proper working order, requirement that certain mine managers before ventilation is affected. mechanically and electrically. be notified of any unusual variance in The final rule removes existing Paragraph (a) requires a daily physical the mine ventilation pressure or if an paragraph (g)(2), revises existing examination of the main mine fan, electrical or mechanical deficiency of a paragraphs (a), (b)(1), (c), (d), (g)(1) and unless a fan monitoring system is used. main mine fan is detected. (h), redesignates existing paragraph (f) If a fan monitoring system is used, The final rule does, however, delete as (f)(1), and adds new paragraphs (f)(2) paragraph (b) requires a weekly physical reference to notification of the mine and (g)(2). Paragraph (a) of the final rule, examination of the main mine fan, a superintendent or assistant mine like the existing rule, requires daily weekly test of the monitoring system, superintendent. As discussed in relation examination of main mine fans unless a and a daily review of the main mine fan to the countersigning of records, the fan monitoring system is used. In monitoring data. Commenters suggested mine superintendent is quite often not addition, paragraph (a) specifies that an that even if a main mine fan is equipped a certified person and is only examination of the main mine fan is not with a monitoring system, the fan periodically present at the mine. In required on days when no person goes should still be subject to daily physical addition, consistent with other sections underground. An examination of the examinations because a fan monitoring of the final rule and recognizing that the fan, however, is required prior to system is not capable of disclosing all term mine foreman is not used at some anyone entering the mine. The purpose conditions that a physical inspection mines, the final rule requires that if an of this examination, as stated in could disclose. The final rule does not unusual variance in the mine paragraph (a), is to assure the electrical adopt this suggestion. A weekly ventilation pressure is observed, or if an and mechanical reliability of the fan. physical examination of the fan and a electrical or mechanical deficiency of a When a fan monitoring system is test of the monitoring system coupled main mine fan is detected, the mine used, the final rule requires a daily with a daily review of the monitoring foreman or equivalent mine official, or review of the data from the monitoring data provides reasonable assurance that in the absence of the mine foreman or system to be made, except on days when a mine fan is operating reliably. equivalent mine official, a designated no person goes underground. A review Commenters suggested that the certified person acting for the mine of the data from the monitoring system proposed requirement of paragraph foreman or equivalent mine official must be completed, however, prior to (b)(1) requiring a daily review of main shall be notified immediately. As with anyone entering the mine. mine fan monitoring system data is the proposal, the final rule requires that Fan examinations or review of fan unnecessary and redundant. These appropriate action or repairs shall be monitoring system data are required to commenters suggested that the system instituted promptly. It is not intended be performed by a trained person need only be capable of producing a that the appropriate action or repairs be designated by the operator. printout because the systems would delayed until the mine foreman or Commenters questioned the use of the automatically alarm anytime an equivalent mine official is notified. term ‘‘assure’’ in paragraph (a) when electrical or mechanical deficiency During a series of informational referring to the electrical and exists. Requiring a daily review of the meetings held by MSHA following mechanical reliability of main mine monitoring system data, according to publication of the existing rule, fans. MSHA uses the term ‘‘assure’’ in these commenters, could discourage the questions arose concerning the this context as defined in Webster’s use of improved technology. Other operation of back-up fans. For Third New International Dictionary, commenters noted that operators informational purposes, the preamble to Unabridged, 1993 edition, to mean, ‘‘to currently using fan monitoring systems the proposal included a detailed make safe, to give confidence to.’’ The conduct a daily review of the data at the discussion of questions about the sense of this definition is consistent present time and that the requirements operation of back-up fans under the with the intended purpose of the to review the data would provide an ventilation regulations and solicited examination. The term does not mean to additional measure of safety for the comments. MSHA did not propose any ‘‘guarantee’’ safety, as suggested by one miners. MSHA believes that a daily rule changes, nor does the final rule commenter. review of data from fan monitoring contain specific provisions for back-up Commenters suggested that the final systems is needed to assure that mine fans. When a back-up fan operates in rule require the examination of main management is made aware of any place of the main mine fan, the back-up mine fans for proper operation be operational changes or trends in fan is considered to be a main mine fan conducted by an individual trained as monitored parameters. Main mine fans and all subpart D requirements for main part of the mine operator’s training plan provide the source for mine ventilation mine fans are applicable. required by MSHA’s comprehensive and, therefore, are critical to miners’ training regulation in part 48 of 30 CFR. safety. As discussed earlier, these daily Section 75.312 Main Mine Fan Other commenters understood the reviews of data are designed to Examinations and Records proposal to require training of fan complement the physical examinations Proper operation of main mine fans is examiners under part 48, and objected of the fan. critical to mine ventilation and the to such a requirement. These The final rule adopts the requirements prevention of methane accumulations commenters suggested that the person of proposed paragraphs (b)(1)(ii) (A) and and possibly methane explosions. conducting the fan examination be one (B) and requires that when a fan Recognizing the importance of the main who has received training through monitoring system is used as provided mine fan, § 75.312 requires that each experience or has been trained by an under paragraph (a), a trained person main mine fan be examined at least experienced person, or by the fan designated by the operator must test the once each day that the fan operates manufacturer. The final rule does not system for proper operation at least unless the fan is continuously require fan examiners to be trained as every 7 days. Commenters objected that monitored with a main mine fan part of the operator’s part 48 training it is redundant because a fan monitoring monitoring system. Through daily plan. Instead, the final rule specifies system is capable of monitoring itself examinations or continuous monitoring that fan examiners must be trained and can automatically provide a of critical parameters, the operator can sufficiently to have the skill and warning when a fan malfunction occurs. determine if problems with the fan are knowledge to ascertain whether the fan These commenters also stated that if the Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9771 system is continuously operated, the protection as stopping the fan, the that the person performing main mine system is self-tested for proper petition for modification process is fan examinations certify by initials and operation several times a minute and available for an operator to obtain date at the fan or another location that the 7-day test is unnecessary. The approval. specified by the operator that the commenters suggested that the 7-day Paragraphs (c) and (d) permit examinations were made. Each test only be conducted if the fan underground power to remain energized certification is required to identify the monitoring system is not continuously during fan signal and automatic closing main mine fan that was examined. operated. For continuously operating door testing, notwithstanding the When daily fan examinations are fans an examination of the fan should requirements of § 75.311. If the fan is conducted, daily certification is more appropriately be conducted not restarted within 15 minutes, the required. When a main mine fan monthly, according to these final rule requires that underground monitoring system is used and fan commenters. Requiring more frequent power be deenergized and no one is examinations are conducted at 7 day checks the commenters maintain would permitted to enter any underground intervals, certification is required each discourage the use of fan monitoring portion of the mine until the fan is time the fan is examined. systems. restarted and an examination is One commenter offered suggested The final rule does not adopt these conducted. Additionally, paragraphs (c) wording that would eliminate the suggestions. While MSHA encourages and (d) require that only persons option of certifying that the examination the use of fan monitoring systems, necessary to evaluate the effect of the was completed at a location other than excessive reliance on the self- fan stoppage or restart, or to perform the fan being examined. This suggestion monitoring features of these systems is maintenance or repair work that cannot has not been adopted and the final rule incompatible with the importance of otherwise be done while the fan is retains the flexibility for certifications to reliable operation of main mine fans. operating, are permitted underground. be made away from the fan. MSHA does not anticipate that the final Some commenters objected to limiting Paragraph (f)(2) of the final rule rules for examination requirements will the persons who can be underground requires that when a main mine fan discourage the use of fan monitoring during fan signal and closing door tests. monitoring system is used, a daily systems. Main mine fans without a Other commenters objected to anyone printout of the system’s data must be monitoring system are required to be being permitted underground during the certified to indicate that the daily examined daily, while fans with stoppage of a fan to conduct the review was completed. While some monitoring systems are required to be required tests. These commenters commenters generally agreed with this examined every seven days. expressed the opinion that all necessary requirement other commenters Paragraphs (c) and (d) of § 75.312 of work can be performed with the fan suggested that an alternative should be the final rule continue in effect the operating and therefore, when a fan is provided for systems which are requirements that tests of the automatic shut down to test the fan signal device continuously operated and supervised. fan signal device and automatic closing or the automatic closing doors no one In such cases, the commenters suggested doors, when these doors are required, be should be underground. that immediate notification of the mine conducted at intervals not to exceed 31 Some work, such as working foreman when a deficiency arises would days. The specified means of testing immediately inby a blowing fan, could be appropriate, together with these devices and doors is by stopping place workers at risk by exposing them maintaining the internal records of data the fan. The proposal would have to extreme temperatures, effects of the gathered by the systems for one year. permitted an alternative test not high velocity air stream, or excessive The suggested alternative is not involving stopping the fan if the noise levels when the fan is operating. included in the final rule. MSHA alternative method provided the same In addition, repair work within a shaft believes that documentation that level of assurance that the signal device can more safely be done when a fan is monitoring system data is being or door would function as intended stopped. The rule, therefore, retains the reviewed is necessary to provide during fan stoppages. Two commenters exception that permits persons reasonable assurance that mine favored the proposal and suggested that underground during intentional fan management is aware, on a timely basis, there is no need to approve alternate stoppages to evaluate the effect of the of the operating condition of the fan means of testing fan signal devices in fan stoppage or restart, or to perform being monitored. However, to reduce the mine ventilation plan. These maintenance or repair work that cannot the burden of this requirement, the final commenters expressed the opinion that otherwise be done while the fan is rule in paragraph (f)(2) does permit the each authorized representative should operating. electronic certification of the review of be capable of ascertaining the validity of Paragraphs (c) and (d) of the final rule the data generated by a fan monitoring the alternative method. The commenters are reworded to clarify that during the system. As with electronically kept did not make a similar suggestion required tests, power circuits may records, the rule would require that the relative to the alternative means remain energized only if no person is electronic certification include provision proposed in paragraph (d) for underground. Therefore, if an operator handwritten initials and dates. A automatic closing doors. Another elects to evaluate the effect of the fan discussion of comments concerning the commenter opposed the use of stoppage or restart, or to perform use of computers to maintain records alternative tests stating that it would be maintenance or repair work that cannot can be found in the General Discussion premature to adopt a provision for an otherwise be done while the fan is of this preamble. alternative test to stopping the fan when operating, simultaneous with the tests Paragraph (g)(1) of § 75.312 requires such a test has not as yet been required, power circuits must be that by the end of the shift on which the developed. MSHA has reconsidered the deenergized in accordance with examination is made, persons making proposal and the final rule continues to § 75.311(b)(3). Additionally, in main mine fan examinations must require that the tests of fan signal accordance with § 75.311(b)(2), all record all uncorrected defects found devices and automatic closing doors be mechanized equipment must be shut during the examination that may affect conducted by stopping the fan. Should off. the operation of the fan. The rule also an operator develop an alternative Paragraph (f)(1) of the final rule specifies that records be maintained in method that provides the same level of retains the longstanding requirement a book that is secure and not susceptible 9772 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations to alteration, or electronically in such a be made in books that are secure and Paragraph (a)(3) of the final rule manner as to be secure and not not susceptible to alteration, or requires that if a main mine fan stops, susceptible to alteration. The proposal electronically in such a manner as to be everyone shall be withdrawn from the would have required all defects found secure and not susceptible to alteration. working sections and from areas where during the main mine fan examination A detailed discussion of record books mechanized mining equipment is being that may affect the operation of the fan and the use of computers to maintain installed or removed. The language of to be recorded whether corrected or records can be found in the General the final rule is identical to the wording uncorrected. Discussion of this preamble. of stayed § 75.313 (a)(3). An in-depth Some commenters objected to Paragraph (g)(2) of the existing rule discussion of provisions concerning the recording defects that ‘‘may’’ affect the requires that at mines permitted to shut installation and removal of mechanized operation of the main mine fan, and down main mine fans under § 75.311, if mining equipment is presented in the suggested only defects that do affect the a pressure recording device is not used, General Discussion section of this operation of the main mine fan and that a record shall be made, in a book preamble. are not corrected by the end of the shift, maintained for that purpose, of the time The final rule revises paragraphs need to be recorded. and fan pressure immediately before the (c)(2), (c)(3), (d)(1)(i) and, (d)(1)(ii) of the Some commenters asserted that a fan is stopped, and after the fan is stayed standard. Paragraphs (c)(2) and record of ‘‘all’’ defects should be restarted and the fan pressure stabilizes. (c)(3) require that when a main mine fan required in order to identify recurring The final rule does not retain this stops with persons underground, the problems that may lead to bigger requirement in light of the new underground electric power circuits problems. These commenters requirement of § 75.310(a)(4) that all shall be deenergized and mechanized interpreted the proposal to require such main mine fans be provided with a equipment shall be shut off. These rules a record. The final rule is intended to pressure recording device or an option further recognize an exception to address problems found during fan of the use of a fan monitoring system. facilitate miners’ evacuation from the examinations that may indicate more This new requirement eliminates the mine. The exception temporarily serious defects and ultimately lead to a need for an additional record of the time permits some circuits to remain fan failure and that cannot be corrected and fan pressure made immediately energized and some mechanized by the end of the shift. The objective is before the fan is stopped and after the equipment to not be shut off, provided to record defects of a nature and fan is restarted and the fan pressure these circuits and mechanized seriousness that could result in a fan stabilizes. This information is obtained equipment are necessary to withdraw failure, but not to record defects that are from the pressure recording chart, persons from the mine and are located so minor that it would be unreasonable in areas where methane is not likely to which records the pressure to expect fan failure to result. Another migrate to or accumulate. These circuits continuously and automatically, thus commenter stated that recording all must be deenergized and the maintaining the protection afforded the defects that may affect fan operation mechanized equipment must be shut off miners. would result in excessive paperwork of as persons are withdrawn. The final rule little value. This commenter also Paragraph (h) of the final rule requires differs from the stayed standard by suggested that if mine ventilation does that the records required by § 75.312 be limiting the exception permitting the become ineffective, the workers are to maintained at a surface location at the use of these circuits or equipment to be withdrawn from the mine. MSHA is mine for one year and be made available areas where methane is not likely to sensitive to concerns about for inspection by authorized migrate to or accumulate. recordkeeping. Therefore, the final rule representatives of the Secretary and the Paragraph (d)(1)(i) requires that when requires that all uncorrected defects representative of miners. Comments a fan stoppage lasts for more than 15 which are found during the examination were generally favorable on this minutes a preshift-type examination that may affect fan operation be proposal. A discussion of comments must be conducted before persons other recorded. In this manner, miners on the concerning the use of computers to than designated examiners, are oncoming shift are aware of problems maintain records can be found in the permitted to enter any underground area with the fan that potentially could General Discussion of this preamble. of the mine. Examiners are permitted to impact underground ventilation. As with the other provisions of the re-enter the underground area of the Commenters supported the use of final rule allowing electronic mine from which miners have been electronic media as a substitute for certification or recordkeeping, sufficient withdrawn only after the fan has specific types of record books. protections have been included so that operated for at least 15 minutes unless Commenters pointed out that almost all there is no reduction in protection from a longer period of time is specified in such systems incorporate recordkeeping the existing standards. the mine ventilation plan. Paragraph functions and that significant variances Section 75.313 Main Mine Fan (d)(1)(ii) requires that when a fan from the norm are easily noted. They Stoppage With Persons Underground stoppage lasts for more than 15 minutes, concluded that the computer monitoring underground power circuits are not to systems provide superior protection for Section 75.313 was stayed by MSHA be energized and nonpermissible the miners. The final rule permits, in as explained in the introductory section mechanized equipment is not to be paragraph (g)(1), the use of of this preamble. Generally, this started until a preshift-type examination electronically stored records for main standard is concerned with protecting is conducted, except that designated mine fan examinations provided the miners from the danger introduced certified examiners may use records are secure, are able to capture when the main mine fan stops, such as nonpermissible transportation the information and signatures required, when there is a loss of power. Under equipment in intake airways to facilitate and are accessible to the representative these circumstances, mine ventilation is the conduct of the required of the miners and the representatives of interrupted, permitting gases such as examination. the Secretary. methane to accumulate. These Some commenters suggested that As with other records required by this conditions can lead to an explosion actions following fan stoppages are best rule, paragraphs (g)(2) and (g)(3) require ignited by electric circuits or the handled on a mine-by-mine basis that records required by § 75.312 must operation of equipment. through a plan approval process. Along Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9773 these lines, commenters suggested that prudent mine managers. MSHA agrees objectives of these standards are the the fan stoppage plan approval process that the terms and objectives of the final protection of the examiners and the previously used by MSHA should be rule are understood in the mining safety of miners returning to work. used with only minor modification to community, and believes that the As proposed, paragraph (d)(1)(i) assure that plans do not become determination of whether methane may would have required that when a fan standardized, that is, model the rule on migrate from adjacent areas and enter stoppage lasts for more than 15 minutes a past standard with criteria for travelways and haulageways used by a preshift- type examination be approval of fan stoppage plans. Other miners during withdrawal should be conducted covering the requirements of commenters, while supporting the made on a mine-by-mine basis. § 75.360(b) through (e) before persons, concept of fan stoppage plans, proposed Therefore, the final rule retains the other than designated examiners, enter to tie the submission and approval of exception that power circuits may any underground area of the mine. such plans to total mine ventilation remain energized and mechanized Commenters suggested that to provide surveys and computer simulations equipment may be operated only if the level of protection desired, a conducted by the operator every three located in areas where methane is not complete preshift examination, months. According to one commenter likely to migrate to or accumulate. including the certification and the data provided by these surveys Some commenters stated that history recordkeeping requirements of would be used to determine the does not support the need for the § 75.360(f) through (g), should be adequacy of a fan stoppage plan. requirements of paragraphs (c)(2) and required. Commenters pointed to the The final rule does not adopt the (c)(3). Mine fan stoppages need for miners reentering evacuated suggestions of the commenters for mine unquestionably result in the existence of areas to be able to determine if the area fan stoppage plans. One objective in this unventilated areas and may result in had been examined and urged that the rulemaking is to reduce the need for highly hazardous methane final rule require the examiner to certify paperwork, such as plans, where accumulations. Although there have by initial, date and time the areas reasonable, uniform requirements can been a limited number of ignitions/ examined. be developed. The final rule establishes explosions directly attributable to the MSHA agrees that clear notice to the general requirement that after a fan operation of transportation equipment miners about which areas have been stoppage lasting more than 15 minutes, during a fan stoppage, the true measure examined is necessary and consistent mine power and equipment is to be shut of the potential hazard addressed by this with the objectives of the rule. The final down. However, experience shows that standard can be seen in the ignitions rule, therefore, adopts the proposal. A using transportation equipment to and explosions that were the result of record of the hazardous conditions facilitate mine evacuation is often the operation of transportation found by examiners is required under necessary, provided this is done where equipment in unventilated areas. § 75.363 of the final rule. This record gas is not likely to accumulate, and Examples of such types of accidents serves the purpose of providing mine circuits are deenergized on the way out include: The 1972 Itmann No. 3 management with the information of the mine. explosion, in which 5 miners died; the necessary relative to the existence and Some commenters suggested that the 1976 Scotia Mine explosion, in which correction of hazardous conditions in requirements in paragraphs (c)(2) and 15 miners died; the 1982 Virginia the mine. The final rule incorporates (c)(3) limiting the use of transportation Pocahontas No. 6 Mine explosion in these requirements by specifying that equipment to areas and haulageways which 1 miner was injured; the 1983 the scope of the examination be ‘‘where methane is not likely to migrate McClure No. 1 Mine explosion, in conducted as described in § 75.360(b) to or accumulate’’ are inconsistent with which 7 miners died; the 1983 Homer through (e). certain state laws. As support for this City Mine explosion in which a mine Under paragraph (d)(1)(i) no one other assertion, the commenters gave the examiner was killed; the 1983 than designated certified examiners example of the state of Illinois’ Greenwich Collieries No. 1 Mine would re-enter any underground area of requirements for evacuating mines explosion in which 3 miners were killed the mine until the entire examination is following an interruption in ventilation, and 4 miners were injured and; the 1993 completed. Commenters suggested that which does not expressly recognize explosion at the Buck Mountain No. 2 paragraph (d)(1)(i) be revised to permit limited use of power and equipment to Mine in which 3 miners were injured. partial examinations following fan facilitate evacuation. State mine safety Given this history of explosions, it stoppages and restarts under certain laws, including Illinois’, are similar to would not be prudent to permit electric conditions. Under this suggested the final rule provisions for evacuation circuits to remain energized and approach, the examination would focus after a mine fan stoppage. As a general mechanized equipment to be operated on the effectiveness of the mine’s rule, state mine safety regulations that in areas or haulageways where methane ventilation system and methane are more stringent than MSHA is likely to migrate to or accumulate accumulations in travelways, work standards are not considered to be in during a fan stoppage. places or other areas where miners will conflict with federal regulations, and One commenter stated that the in- work following the interruption of the more stringent safety requirement mine test necessary to determine the ventilation. One commenter further applies. In this case, if the Illinois likelihood of methane migration could suggested that an exception to this regulation would not permit temporary only be done with the fan stopped. The examination be provided for noncoal use of power and equipment to facilitate commenter questioned whether miners producing shifts, where persons are to evacuation, then the state law would not would be permitted underground during work in the shaft, slope, drift, or on the be inconsistent with MSHA. the tests. To the extent the tests require immediate shaft or slope bottom area. Several commenters objected to the the main mine fan to be turned off, The commenter suggested the wording, ‘‘where methane is not likely persons would be allowed underground examination following a fan stoppage to migrate to or accumulate,’’ in to evaluate the effect of the fan stoppage could be limited to this area. paragraphs (c)(2) and (c)(3), as being or restart. The final rule does not adopt this vague. Other commenters stated that the Paragraphs (d)(1)(i) and (ii) address approach. Limiting the scope of rule’s requirement was simply good safety precautions for reentering the examinations following an interruption practice that would be heeded by mine after ventilation is restored. Key in mine ventilation to general 9774 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations ventilation effectiveness and methane equipment for the transportation of to remain underground. These accumulation would not focus on likely examiners be permitted. commenters also took the position that areas of concern. For example, no As revised, paragraph (d)(1)(i) once a fan has been off for more than 15 examination for hazards would be requires that the main fan when minutes, all efforts to restart the fan required, and no air measurements to restarted run for at least 15 minutes so should be suspended, unless it is known determine if the air is moving in its that restoration of mine ventilation is that it is safe to restart the fan. Other proper direction and at its normal underway before anyone enters the commenters expressed significantly volume would be required. As to the mine. Once this is accomplished, different views on both issues. A area of the mine required to be electrical circuits in shafts and slopes number of commenters supported examined, only those places where can be energized safely as these areas restarting the fan as soon as possible miners will return to work and the route are the first places to be reventilated by because the longer it is off, the greater of travel used to reach these places must fresh air. Accordingly, the final rule the potential hazard. MSHA concurs be examined. Thus, the final rule is permits these circuits to be re-energized with this reasoning and the final rule sufficiently flexible to meet the after the mine fan has run for at least 15 adopts this approach. commenter’s concerns about non- coal minutes. On the issue of requiring the producing shifts. The final rule also permits examiners evacuation to continue once it has A question arose during public to use nonpermissible equipment for begun until the fan is restarted, even meetings as to the meaning of the term transportation during the examination. when ventilation is restored, a number on-coming shift in § 75.360 when The proposal would have prohibited of commenters objected that such a applied to § 75.313. For the purposes of this practice. Some commenters requirement would result in § 75.313(d)(1)(i) and (ii) the term supported the proposed prohibition unnecessary delays and may result in ‘‘persons on the on-coming shift’’ is citing two mining accidents involving additional safety risks. One commenter interpreted as meaning persons on the nonpermissible equipment in stated that the proposal would not allow shift on which the fan is restarted. If a unventilated areas. Other commenters for the variables that exist from mine to fan outage extends from one shift into objected to the proposal not to allow the mine. Several commenters suggested another, a preshift examination as use of nonpermissible equipment to that if the operator has reason to believe required by § 75.360 must be completed facilitate examinations following the that the time frame of the fan stoppage before any person, except certified restart of a main mine fan. These would be less than the travel time or examiners designated to conduct the commenters stated that travelways and equivalent, the dangers of traveling examination, enters the mine. equipment roadways can be examined outby into possible pockets of Commenters also suggested that the and tested for the presence of methane, dangerous gas buildup (or other travel final rule specify a minimum time for the results of the examination called hazards) far outweigh the dangers of the fan to run before examiners re-enter out, and typical nonpermissible staying on the section in intake air back the mine so that examiners are not transportation equipment placed into from the face. This would also allow the unduly exposed to danger. Several operation to expedite the examination of miners to remain on the section and commenters observed that this is a the mine. proceed to the working places after the general practice in the industry. After considering all of the comments, fan has restarted and the working places MSHA agrees that an important MSHA has revised the proposal and the have been examined by a certified measure of safety is gained by allowing final rule permits the use of person. the mine fan to run sufficiently long to nonpermissible transportation MSHA disagrees with this position. In begin reventilating the mine before equipment, in intake airways, to some mines, the time to travel from the anyone enters. The final rule, therefore, facilitate making the examinations after outside to the working sections can provides designated certified examiners an interruption in mine ventilation. approach 1 hour. Following the shall enter the underground area of the Using nonpermissible equipment in this approach suggested, miners would mine from which miners have been fashion, in nonventilated areas, has remain on the section in an unventilated withdrawn only after the fan has been a demonstrably safe practice for mine for up to 1 hour. If at the end of operated for at least 15 minutes unless many years in the industry. In addition, this time ventilation is still not restored, a longer period of time is specified in the requirement of running the fan for it is unclear whether the miners then the approved mine ventilation plan. The 15 minutes before reentering the mine, proceed to the surface, traveling through 15 minute provision will permit re- together with keeping the transportation the same area the commenter suggested ventilation of entries in which equipment in the intake airways where might be hazardous some 45 minutes examiners will travel to take place and the main ventilating current travels first, before. the examiners will then be traveling into provides the desired level of safety. The commenters stated further that, the mine in fresh air. Under proposed paragraph (d)(2), if ‘‘Forcing miners to walk out of the mine Proposed paragraph (d)(1)(ii) would ventilation was restored to the mine could take hours and unnecessarily have required that when a fan stoppage before miners reached the surface, all delay the restoration of ventilation and lasts more than 15 minutes underground miners would have been required to resumption of operations.’’ While there power circuits are not to be energized continue traveling to the surface. As may be instances where the time and nonpermissible equipment is not to proposed, designated certified required to withdraw miners is be started until a preshift-type examiners would have been permitted increased, the requirements in examination is completed. Commenters to remain underground for the purpose paragraphs (c)(2) and (c)(3) have no objected to the proposal for various of beginning the required examination. impact on the restoration of ventilation. reasons. One commenter suggested that The final rule does not adopt the In fact, MSHA’s position is that before power is permitted to be proposal and retains the language of the ventilation should be restored as soon as energized a complete ventilation survey existing standard. possible following a fan stoppage. should be required. Other commenters While supporting the requirement Lastly, a number of commenters focused on the practical considerations that miners continue to the surface after suggested that when ventilation is involved in conducting examinations a fan is restarted, some commenters restored during evacuation, miners and urged that use of nonpermissible objected to permitting certified persons should be permitted to remain where Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9775 they are and return to working areas the instrument and the permissibility Commenters suggested that after an examination of inby areas is requirements might be assigned the task. maintenance and calibration completed. These commenters stated Several commenters suggested that requirements should parallel those that no additional measure of safety is the requirements of paragraph (e) are proposed under § 75.342 for machine- gained by requiring miners to continue redundant with general requirements mounted methane monitors. They to the surface if ventilation has been found elsewhere in the standards and suggested that, because the detectors restored and the area in which the are unnecessary. Other commenters felt and monitors perform similar functions, miners are located is free of hazards. that the current performance standard is the requirements should be similar. The MSHA agrees and has retained the adequate, but that the meaning of final rule does not adopt this suggestion. language of the existing rule. By ‘‘assure’’ is unclear. Still other The methane monitoring instruments retaining the existing language, the commenters indicated that the under this standard and those governed general practice of miners stopping their assurance of permissibility is properly by § 75.342 are subject to different evacuation and waiting for examiners to the responsibility of the user. One mining conditions. For example, complete their work will continue. commenter noted that the instruments machine-mounted monitors must be Under this approach, miners remain in are intrinsically safe and that the calibrated and maintained underground, a safe location while ventilation of the manufacturer’s instructions are on the equipment on which they are mine is restored. They do not return to sufficient. MSHA agrees that the general installed and on working sections. This any area of the mine until it has been requirement under paragraph (a), calibration must also be scheduled determined to be safe. The final rule together with requiring trained persons, within production timetables. Handheld does not prevent mine operators from is adequate. detectors and measurement devices, having miners continue to the surface if Another commenter suggested that a however, are removed from the mine they so choose. Regardless of whether formal written maintenance program be and are maintained and calibrated in miners remain where they are or required. Under this suggestion, the surface environments. Calibration and continue to the surface, paragraph program would be subject to MSHA maintenance of handheld detectors is (d)(1)(i) of the final rule requires that the approval and would include records of usually done during shifts when the fan operate for at least 15 minutes before all maintenance and calibrations to be instruments are rotated out of service. the examination of the areas from which made by the end of the shift. This Thus machine-mounted monitors are miners have withdrawn is examined. commenter also suggested that existing calibrated and maintained under more strenuous conditions than handheld Section 75.320 Air Quality Detectors paragraph (a) be revised to provide for more frequent calibration by inserting detectors. and Measurement Devices One commenter suggested that the phrase ‘‘* * * or more often if Section 75.320 establishes the written records of all maintenance and necessary * * *.’’ This suggestion has standards for the devices relied upon to calibration should be required. The not been adopted since compliance with test for the presence of methane and commenter further suggested that: Each other dangerous gases that can the proper operating and permissibility operator submit a written maintenance accumulate in a mine. It generally provisions of paragraph (a) would result program to MSHA for approval and requires that these devices be approved in more frequent calibration, if provide a copy to the miner’s and maintained in permissible and necessary. MSHA notes that under the representative; the written program proper operating condition. previous standard, there was no written specify training to be provided; records The final rule adds a new paragraph maintenance program required nor were be completed by the person performing (e). It requires that maintenance of records required. MSHA believes that maintenance and be countersigned by instruments required by paragraphs (a) experience under both the previous and the mine foreman within 24 hours; and through (d) of § 75.320 to detect and existing standards demonstrates that, that records be maintained for one year measure air quality be done by a trained with the addition of paragraph (e), and be made available to MSHA and the person. The final rule does not include maintenance and calibration is representative of the miners. These the proposal that before each shift care appropriately addressed in the final rule additional requirements were not shall be taken to assure the permissible and safety is not reduced. included in the proposal and are not condition of the air quality detectors Several commenters agreed with the adopted in the final rule. The and other measurement devices to be proposal for a ‘‘trained’’ person to requirements contained in the final rule used during the shift. MSHA has maintain air quality detectors and adequately address and are concluded that this requirement would measurement devices. These appropriately related to the concerns have been redundant with paragraph (a) commenters suggested that the trained relative to maintenance, calibration, and is unnecessary. The final rule person be defined as a person permissibility, and the general permits an operator to send instruments designated by the operator who has condition of air quality detectors and to a repair facility or to the received training through experience in measurement devices. manufacturer for regular servicing. maintenance of the instrument, has been Commenters at the informational trained by an experienced person, or Section 75.321 Air Quality meetings and in later discussions on the one who has received training by or The primary function of a mine existing rule stated that maintenance by through the instrument manufacturer. ventilation system is twofold, to remove trained persons should be specified and MSHA has not adopted this suggestion hazardous gases such as methane, and that requiring only that air quality since the operator should have some to provide miners with an respirable detectors and other measurement flexibility as to the mode of training. environment in areas where they are devices be maintained in permissible The requirement that the person required to work or travel. As discussed condition would not be sufficient. They performing the maintenance must be in the introductory section of this stated that without a requirement for trained is intended to mean that the preamble, § 75.321 of the existing maintenance to be done by a trained person be capable of doing the required standard was stayed by the United person, similar to that which existed in maintenance, not that they receive a States Court of Appeals for the District the previous standard, a person with specific course of instruction in what to of Columbia Circuit as it pertains to less than the necessary understanding of do. bleeder entries. The final rule, in 9776 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations

§ 75.321, addresses acceptable levels of intends to apply TWA and STEL levels percent oxygen is the minimum level for oxygen and carbon dioxide in areas of in a manner consistent with the Air safe entry into an area, and that at a a mine, including areas of a bleeder Quality rulemaking. The levels for level of 16 percent, judgement and entry, where persons are required to carbon dioxide in the final rule for areas breathing are impaired. The American work or travel. where persons work or travel in bleeder National Standards Institute (ANSI), in Paragraph (a)(1) continues a basic air entries and worked-out areas are ANSI Z88.2–1992, ‘‘American National quality requirement that has been in identical to the levels contained in Standard for Respiratory Protection’’ place since 1970 that air in areas where MSHA’s proposed Air Quality standards recognizes that at 16 percent oxygen persons work or travel contain at least for coal and metal and nonmetal mines there is an impairment in the ability to 19.5 percent oxygen and not more than and the 1992 Threshold Limit Values think and pay attention, and a reduction 0.5 percent carbon dioxide, and the (TLVs) as specified by the American in coordination. ANSI recognizes that at volume and velocity of the air current Conference of Governmental Industrial 19 percent oxygen there are some in these areas be sufficient to dilute, Hygienists (ACGIH). adverse physiological effects. render harmless, and carry away Some commenters suggested that The need for regulating the oxygen flammable, explosive, noxious, and other changes be included in the final level where persons work or travel in harmful gases, dusts, smoke, and fumes. rule. First, they recommended that the bleeder entries is illustrated by two Paragraph (a)(2) applies the same permissible minimum oxygen level for mining accidents. One of these requirement for oxygen, 19.5 percent, bleeders and worked-out areas be accidents resulted in the death of a mine for the air in areas of bleeder entries and lowered from 19.5 percent to 18 percent. examiner and the second resulted in the worked-out areas where persons work or Second, they suggested that the near death of two individuals, one of travel. The final rule does not require requirements that apply to bleeders and whom was a mine examiner. Mine the carbon dioxide level of 0.5 percent worked-out areas be expanded to examiners are, through training and to be applied to bleeder entries and include airways associated with experience, the individuals best able to worked-out areas. Rather paragraph bleederless mining areas. The rationale identify the hazards associated with (a)(2) requires that the carbon dioxide given for this second recommendation irrespirable atmospheres. The first levels in the air in bleeder entries and was that the conditions in these airways accident occurred at the Arclar Mine in worked-out areas where persons work or are similar to bleeders. In light of the Equality, Illinois in 1989. Prior to travel not exceed 0.5 percent time- ongoing Air Quality rulemaking, MSHA implementation of the existing standard, weighted average (TWA) and 3.0 is not at this time clarifying existing Air a mine examiner entered a worked-out percent short-term exposure limit Quality standards except those for area that was posted with a danger sign (STEL). worked-out areas and bleeder entries. and was asphyxiated. Under the existing MSHA interpreted former § 75.301 to Commenters for the most part agreed regulation, ventilation or sealing of this require at least 19.5 percent oxygen and with the change relative to carbon area, rather than posting, would be no greater than 0.5 percent carbon dioxide although one commenter required. Because the area was not dioxide in bleeder systems where indicated that there was no need for any sealed, the existing regulation would persons work or travel. It was MSHA’s standard. Bleeder entries and worked- require the area to be examined during intent that existing § 75.321 would out areas are required to be traveled or the weekly examination. The final rule necessitate compliance with these levels evaluated at least weekly. Generally, would require that the route of travel for where persons would be exposed in this is done by a person traveling alone the examiner contain at least 19.5 bleeder entries and in worked-out areas. who is often required to be in the percent oxygen. Had the final rule been However, the application of this bleeder entries or worked-out areas for in place when the examiner entered the provision to bleeders and worked-out an extended period. The purpose of this worked-out area, the accident may have areas was stayed by the United States standard is to protect miners, not to been avoided. Court of Appeals pending the outcome regulate air quality where persons are The second accident, although not in of litigation addressing the not exposed. Therefore, if examinations a bleeder entry or worked-out area, is promulgation of the existing rule. are performed remotely or if persons illustrative of what can happen when MSHA continues to believe that making the examination can otherwise individuals, including mine examiners, providing necessary air quality is remain in air that meets the are subjected to oxygen deficient air. In essential to protect miners and requirements of the standard, oxygen 1983 at the Bird No. 3 Mine in examiners whenever they work or travel and carbon dioxide levels at bleeder Riverside, Pennsylvania, an assistant in bleeder entries and worked-out areas. connectors and bleeder evaluation mine foreman, a certified person, Therefore, the final rule includes a new points would not have to meet the entered the mine for the purpose of provision specifying that the air in concentrations required by the final conducting an examination. After bleeder entries and worked-out areas rule. traveling approximately 1100 feet, the where persons work or travel contain at According to the National Institute for examiner became dizzy, noticed that his least 19.5 percent oxygen, and that Occupational Safety and Health flame safety lamp had extinguished and carbon dioxide not exceed 0.5 percent (NIOSH) of the U.S. Department of withdrew approximately 200 feet where TWA and 3.0 percent STEL. A TWA is Health and Human Services (NIOSH he sat down and apparently became the time-weighted average concentration Respirator Decision Logic, May 1987), unconscious. A second individual upon for a normal 8-hour workday and a 40- 19.5 percent oxygen provides an entering the area in search of the hour workweek. A STEL is the adequate amount of oxygen for most examiner also became dizzy but was maximum time-weighted average work assignments and incorporates a able to withdraw to a location that was concentration to which miners can be safety factor. Also according to NIOSH, not oxygen deficient. When the mine exposed for a continuous period of up the safety factor is needed because examiner regained consciousness, his to 15 minutes. Commenters noted an oxygen-deficient atmospheres offer little cap lamp battery had discharged and he error in the preamble to the proposal warning of danger. In the NIOSH traveled in total darkness until he with respect to the time an individual publication, ‘‘A Guide to Safety in encountered a mine rescue team. Air can be exposed to concentrations Confined Spaces,’’ (page 4), a chart is samples collected in the area where the between the TWA and the STEL. MSHA presented that indicates that 19.5 mine examiner first became dizzy Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9777 indicated an oxygen level of about 16.8 headache, and mental confusion; three conveys the proper sense of urgency to percent, while other samples collected subjects collapsed. correct the condition. Other commenters nearby indicated oxygen concentrations During rulemaking on the proposed stated that the addition of the phrase ‘‘at of nearly 20 percent. air quality standard, NIOSH once’’ does nothing to improve health or Because mine examiners are required recommended a 0.5 percent TWA and a safety. MSHA has included the phrase to work or travel in areas where oxygen- 3.0 percent STEL. NIOSH made a in the final rule for clarity. deficient air could occur without similar recommendation to the Methane poses a significant hazard to warning, and they normally travel and Occupational Safety and Health miners when it is permitted to work alone, there must be a requirement Administration during that Agency’s accumulate without corrective action that provides them the protection permissible exposure limit rulemaking. being taken quickly. MSHA has always necessary for the performance of their Given the work environment in bleeder intended that corrective changes be duties under these conditions. It is entries and worked-out areas, as made at once. The final rule revises important that the level for oxygen be described earlier, MSHA believes that paragraphs (b)(1)(ii), (c)(1) and (d)(2)(i) established above that identified as the regulatory approach to bleeders and to require that these changes be made resulting in impaired judgement worked-out areas provided by the final ‘‘at once,’’ the phrase used in former because it is essential that individuals rule is necessary and appropriate. In §§ 75.308 and 75.309. traveling in these areas remain highly addition to examiners, other miners may Some commenters stated that the alert. The hazards that can exist in be required to work in the bleeder proposal, if literally enforced, would bleeder entries and worked-out areas entries and worked-out areas, necessitate changes to be made before include elevated methane levels, poor performing duties such as installing roof the cause or source of the increase in footing, loose and unstable roof, and support, pumping water, recovering methane can be investigated. Other water accumulations. For this reason, materials or adjusting ventilation. The commenters stated that approvals must the final rule adopts a minimum level levels established in the final rule be obtained for many ventilation of oxygen of 19.5 percent as would provide these miners with the changes and that some changes require recommended by NIOSH. necessary protection. extended periods of time to complete. MSHA is also concerned with the Operators may take those actions effects of other gases often found in Section 75.323 Actions for Excessive necessary to abate imminent dangers or bleeder entries. Section 75.322 of the Methane hazardous conditions, or to safeguard existing regulation limits the Section 75.323 establishes the actions persons and equipment. A part of this concentration of noxious or poisonous that must be taken when methane action would be a determination of the gases to the current (1971) TLV’s as reaches certain levels. Methane is the cause of the problem. MSHA knows of adopted and applied by the ACGIH. most dangerous gas encountered by no case where an operator has been Section 75.322 specifically excludes miners working underground. When the prohibited from a necessary correction carbon dioxide since it is covered by level of methane reaches 5.0 percent it for a methane problem pending a plan § 75.321. However, so the mining public is explosive. Section 75.323 generally approval. However, in cases where will clearly understand the application establishes action levels below this intentional changes are made which of the regulation, the final rule lower explosive limit to permit could materially affect the safety and establishes a separate standard for appropriate actions to be taken by mine health of miners, approval is required carbon dioxide levels for areas where operators in order to prevent an before resumption of normal work if the persons work or travel in bleeder entries explosion. changes affect the information approved and worked-out areas. The levels set by The final rule adopts the proposal for in the mine ventilation plan. MSHA the final rule, 0.5 percent TWA and 3.0 § 75.323. In doing so, it revises recognizes that some ventilation percent STEL, when considered in paragraphs (b)(1)(ii), (c)(1), and (d)(2)(i) changes take time to accomplish and conjunction with the requirements of of the existing standard. The rule interprets the phrase ‘‘at once’’ as § 75.322 and the requirement for clarifies that corrective actions at meaning that the work of making the oxygen, will provide persons working or specified methane levels must be taken necessary change to reduce methane traveling in these areas with a safe and ‘‘at once’’ and provides that actions for levels begins immediately. healthful working environment. MSHA excessive methane include areas where One commenter questioned how the recognizes that the effects of carbon mechanized mining equipment is being phrase ‘‘at once’’ would apply to a dioxide are both chronic and acute and, installed or removed. MSHA believes methane feeder which is encountered therefore, sets both a TWA and a STEL. that final rule § 75.323 increases the despite an appropriate and well thought NIOSH, in recommending a standard for protection afforded by the existing out ventilation change. MSHA carbon dioxide, also recognized this and standard. recognizes that methane feeders may be recommended a similar approach. The Initially, the need for clarification was encountered unexpectedly. As long as a NIOSH recommendation, made in a raised during informational meetings mine operators takes action as required Criteria Document published in 1976, and subsequent discussions after by the standard, they will be in proposed a TWA concentration of 1.0 publication of the existing rule. As compliance. percent and a ceiling value of 3.0 discussed below, the final rule retains One commenter suggested that some percent not to exceed 10 minutes. In the language of the proposal which is MSHA personnel were improperly making this recommendation, NIOSH identical to the wording of the previous interpreting methane excursions above recognized that there are additive stress standard. 1.0 percent to be violations of the effects of increased carbon dioxide Some commenters indicated that standard. The commenter seemed to concentrations and exercise. As support delays in remedial actions to reduce suggest the regulations should provide for this, the NIOSH document cites methane were being experienced at that the actions specified in § 75.323 for research that showed that healthy, some mines. These commenters excessive methane do not apply to trained subjects exposed to 2.8 to 5.2 attributed delays to the deletion of the concentrations detected on machine- percent carbon dioxide at maximum phrase ‘‘at once’’ in the existing mounted methane monitors. Other exercise levels experienced respiratory standard. These commenters also commenters indicated that the standard difficulty, impaired vision, severe suggested that the phrase ‘‘at once’’ requires unnecessary ventilation 9778 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations changes in response to instantaneous batteries will deplete quickly, little removed, paragraph (b)(2) of the final increases caused by excessive methane hazard would result, or in the rule requires persons to be withdrawn liberation. MSHA recognizes that alternative, each battery outstation from the affected area. The presence of instantaneous methane monitor could be monitored for methane and methane in these areas can pose a readings for machine mounted monitors automatically trip at some set methane significant risk to miners and therefore may occasionally reach or exceed 1.0 level. The final rule does not include their withdrawal from the affected area percent. Usually, these are short-lived this suggestion. Where excessive is essential to their safety. Paragraph and the monitor reading quickly falls methane concentrations necessitate that (b)(2) also requires that all electric below 1.0 percent, even before the power be deenergized, information from power to equipment in affected areas be machine operator can react. However, continued operation of the non- disconnected at the power source. This consistent monitor readings of 1.0 intrinsically safe system would not prevents accidental energization of percent or more indicate a problem and outweigh the potential ignition hazard. equipment and removes power from should cause appropriate changes and To permit operation of a non- cables and circuits which may also be adjustments. Repeated short duration intrinsically safe system in areas known ignition sources. No other work is increases above 1.0 per cent should also to contain excessive levels of methane permitted in the affected area until the be cause for concern and may would be a departure from accepted, concentration of methane is less than necessitate changes or adjustments to effective, and long standing safety 1.0 percent. A conforming change is also ventilation. practice. made to paragraph (b)(2) by adding With respect to paragraphs (b)(1), Several commenters objected to the ‘‘mechanized’’ before mining equipment (b)(2), and (c)(1) some commenters requirement in paragraph (b)(1)(iii) that for consistency with other provisions of stated that the mere presence of prohibits any work in the affected area the rule. methane does not constitute a violation until the methane is reduced to less Comments were received which of a mandatory health and safety than 1.0 percent. Commenters objected to the (b)(2)(ii) requirement standard. MSHA agrees. In this context, questioned whether the standard would that except for intrinsically safe AMS, one commenter suggested replacing the prohibit an operator from taking steps to electrically powered equipment in the word ‘‘present’’ with ‘‘detected.’’ The reduce the methane. The language must affected area shall be disconnected at commenter continued that an operator be given a reasonable interpretation and the power source. Some commenters cannot possibly correct a methane should be considered in context of the suggested that this equipment should be problem until it has been detected, that preceding requirement in paragraph (ii) simply ‘‘deenergized.’’ These the rule should reflect realistic that ‘‘changes or adjustments shall be commenters stated that there was no expectations, and that the current term made at once * * * ’’ need to disconnect the power source, ‘‘present’’ is meaningless. MSHA agrees These requirements are virtually that this could require belt drives, that a methane problem cannot be identical to those found in the previous pumps, etc. to be physically corrected unless it has been detected standard which was in effect for over 20 disconnected where permanent and that the mere presence of methane years. MSHA is unaware of any instance connections have been made, which does not constitute a violation. Only the where an operator was prohibited from could result in a major unnecessary failure to properly respond once being correcting methane problems by such an operation. MSHA has not adopted this made aware of the presence of methane application of the standard. suggested revision. MSHA issues in excess of allowable levels is a Some commenters suggested adding a numerous citations and orders for violation. The standard requires that an phrase to paragraph (b)(1)(iii) to read, damaged power cables, trailing cables, operator properly conduct an ‘‘No work other than removal of the and splices where the conductors are examination; and if methane over 1.0 accumulation shall be permitted * * * ’’ badly damaged or exposed. Each of percent or 1.5 percent is found, as Similarly, MSHA believes that the these citations and orders represents the applicable, corrective action must be suggested change is unnecessary and presence of a potential ignition source. taken at once. has not adopted it. MSHA experience Power cables would remain energized When 1.0 percent or more methane is indicates that the rule is well under these conditions as would be the present in a working place, an intake air understood and has been properly case if the commenters’ suggestion were course, or an area where mechanized applied. adopted. mining equipment is being installed or Other commenters thought that the There are several aspects of § 75.323 removed, paragraph (b)(1)(i) of the final standard, as proposed, would cause which were not proposed for revision, rule requires all electrical, diesel, and hasty, ill-advised changes to be made but for which comments were received. battery- powered equipment in the and would prohibit an investigation into Comments were received relative to the affected working place, intake air the cause or source of the methane 1.0 percent action level in intake air course, or other area, except for problem which could result in phased- courses. Commenters contended that intrinsically safe AMS, to be in corrections. MSHA agrees that Congress established an immutable deenergized or shut off. Deenergizing or operators should seek long term methane limitation of 0.25 percent in shutting off of this equipment protects solutions and should fully investigate intakes. Commenters stated that because miners by preventing this equipment the cause or source of methane Congress had expressly limited intakes from providing ignition sources. accumulations. Investigation and long passing openings to abandoned areas to One commenter suggested that non- term corrections are not prohibited by 0.25 percent methane, that implicitly, intrinsically safe AMS equipment the rule. However, the final rule does all intakes were limited to 0.25 percent should be permitted to run under require that certain actions be methane. However, the commenter then battery power when 1.0 percent or more undertaken at once to correct the short suggested adopting an intake action methane is encountered. The term or acute safety hazards resulting level for methane of 0.5 percent. MSHA commenter stated that the benefit from accumulations of methane. notes that the methane levels were not derived through the system’s operation If 1.5 percent or more of methane is proposed for revision and are not being outweighs the hazard of the non- present in a working place, an intake air revised under the final rule. The intrinsically safe system. The course, or an area where mechanized commenters, however, should refer to a commenter continued that since the mining equipment is being installed or discussion of this issue included in the Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9779 preamble to the existing rule dated May permit the existing ventilation system to reinforced by several speakers at the 15, 1992. maintain the level of methane below 1.0 public hearings. Other commenters If 1.5 percent or more methane is percent. In all cases, however, indirectly referred to § 75.324 and stated present in return air, paragraph (d)(2)(i) increasing the quantity or distribution of that the phrase, ‘‘materially affect the would require changes or adjustments air continues to be an accepted means safety or health of persons in the mine’’ be made ‘‘at once’’ to the ventilation of reducing methane levels. No safety is accepted and understood by the system to reduce the concentration of benefit would be derived from mining community. methane. Because of the hazards disallowing reduced coal extraction One commenter suggested that the presented by accumulations of methane, rates as a means of maintaining methane person designated by the operator to MSHA believes that changes or levels under 1.0 percent. supervise ventilation changes should be adjustments should be made The final rule retains the language of a certified person that is knowledgeable immediately and be made independent proposed §§ 75.323(b)(1)(i), of the mine’s ventilation system. The of the mine ventilation plan in the 75.323(b)(1)(iii), and 75.323 (b)(2)(i) and results of changes to a complex interest of safety. MSHA recognizes that (b)(2)(ii) which is identical to the ventilation system are not always easy some changes take time to complete. If wording of the existing standards. An to predict, and for that reason caution operators begin ‘‘at once’’ to make the in-depth discussion of the reproposal of must be used when making significant necessary changes and adjustments, provisions concerning the installation changes to one air split or several air they will be in compliance with the and removal of mechanized mining splits. The balance of splits can be standard. equipment is presented in the General affected and may result in air reversals, MSHA received comments relative to Discussion section of this preamble. dead air spaces, or insufficient air flow § 75.323 which, although were outside in critical areas. For this reason, such Section 75.324 Intentional Changes in the scope of the rulemaking, changes must be evaluated by a certified the Ventilation System demonstrate an incorrect understanding person examining the affected areas to of the existing rule. The limitations on This section addresses the determine that the areas are safe before methane content and the associated precautions that must be taken when a production is resumed. Therefore, the actions required when excessive significant change is made to the Agency believes that it is to be an methane is encountered are important ventilation system. MSHA did not unnecessary burden to also have components of a safety program to propose any change to existing § 75.324 ventilation changes supervised by a protect underground miners. Therefore, and is not making any revisions in the certified person. Thus, the suggestion of several of these comments will be final rule. the commenter has not been adopted in addressed so that the mining Questions had been raised concerning the final rule. community will better understand these the language, ‘‘materially affect the This commenter also suggested that standards. safety or health of persons in the mine’’ the provisions of § 75.324 should apply First, one commenter objected to the that appears in the existing standard. to all intentional changes which alter existing requirements in § 75.323(d). The phrase is important in that it the air current in any section or area of The commenter incorrectly stated that identifies those ventilation changes that the mine by 10 percent or more, or by paragraph (d) permits normal operations require approval of the MSHA district 9,000 cfm or more, whichever is less with 1.5 percent methane in working manager under § 75.370(c). MSHA and that such change be considered to places. Methane limits in working regards it as impractical to follow a affect the entire mine. The commenter places and intake air courses is limited ‘‘cookbook’’ approach to identifying recommended the miners’ by § 75.323(b). Paragraph (b) specifies what will or will not require approval. representative be afforded the right to actions if 1.0 percent methane is Each particular circumstance is to be accompany the certified person to present, and withdrawal if 1.5 percent is reviewed by the operator on its own evaluate the effects of the ventilation present. Similarly, § 75.323(c) limits merits. To illustrate the Agency’s change and that a preshift examination methane between the last working place expectations, the following is a list of of the mine be conducted to assure that on a working section and where that some examples of what MSHA the mine is safe before electric power is split of air meets another split of air to considers intentional changes that restored. 1.0 percent and requires withdrawal at would materially affect the safety or The commenter also suggested that a 1.5 percent. Paragraph (d) modifies the health of miners. These examples are record be maintained of all ventilation requirement for that portion of the not meant to include all possibilities, changes to include the names of all return split outby the section loading but are meant to provide some general persons involved with the change, the point and has no effect on methane guidance: adding a new shaft; bringing date and time of the change, and results either in working places or between the a new fan on line; changing the and locations of air quality and quantity last working place and the point in the direction of air in an air course; measurements taken both before and return opposite the loading point. changing the direction of air in a bleeder after the change. The commenter stated One commenter indicated a system; shutting down one fan in a that the record should be made in an preference for the language used in a multiple fan system; starting a new approved book within 24 hours of the previous MSHA regulation, § 75.308–1. operating section with ventilating change and that the record should be The previous standard restricted the quantities redistributed from other signed and countersigned. Finally, the changes or adjustments to increasing the sections of the mine; changing entries commenter recommended that the mine quantity or improving the distribution from intakes to returns and vice versa; ventilation map should be updated of air in the affected working place to an and any change that affects the immediately after the ventilation change extent sufficient to reduce and maintain information required by § 75.371, Mine is made and that within 24 hours of the the methane to less than 1.0 percent. ventilation plan; contents. change, the updated map should be The existing rule establishes a Comments were specifically solicited made available to the miners’ performance standard that allows for on issues raised in the preamble representative and a copy sent to the several methods of compliance. One discussion to the proposal. In response, district manager. Section 75.370(c) acceptable method of compliance is to written comments were received from requires that any change to the limit the rate of production of coal to one commenter. These comments were ventilation system that alters the main 9780 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations air current or any split of the main air Only a few comments were received hazard exists. It is important to know current in a manner that could that were specific to paragraph (d). One exactly how areas where mechanized materially affect the safety or health of commenter discussing § 75.371(r) equipment is being installed or removed the miners, or any change to the suggested that the quantity of air will be ventilated. Therefore, this information required in § 75.371 shall required by § 75.325(d) to be specified suggestion has not been included and be provided to and approved by the in the plan should represent the the rule. district manager before implementation. ‘‘minimum’’ quantity to be provided Commenters were concerned about The final rule requires that this and that the location specified should the ventilation of a longwall face prior information be provided to the miners’ be identified as typical so as to give the to the first gob fall. This type of concern representative at least 5 days before mine the flexibility to adapt to should be handled through the mine submittal to the district manager (See conditions. This comment is consistent ventilation plan. Paragraph (d) only § 75.370 for full discussion). MSHA with MSHA’s intent for the proposal deals with areas were mechanized believes that this provision provides and helps to clarify it. Therefore, the mining equipment is being installed or necessary protection for miners. word ‘‘minimum’’ has been inserted removed and not where mining is in One commenter stated that the into the final rule in both § 75.371(r) progress. standard is reactive and that MSHA and paragraph (d) of § 75.325. Section 75.330 Face Ventilation routinely cites mine operators after a Obviously, mine operators can have air Control Devices methane explosion or ignition. MSHA quantities which exceed the minimum The final rule adds a new paragraph believes that the standard is designed to specified in the mine ventilation plan. (c) adopting the proposal language. The assure that operators are proactive and MSHA agrees conceptually with a comment that the ventilation scheme new paragraph (c) requires that when develop plans that prevent hazardous line brattice or any other face conditions. The Agency anticipates that shown in the plan should be representative of the method of ventilation control device is damaged to with the clarification provided through an extent that ventilation of the working this rulemaking, operators will obtain ventilation to be used. However, MSHA does not adopt this comment because face is inadequate, production activities MSHA approval prior to making in the working place are required to intentional ventilation changes that the plan must also be specific enough so that the operator, the miners, the cease until necessary repairs are made materially affect the safety and health of and adequate ventilation is restored. miners, thereby preventing potentially representative of miners, and MSHA are assured that the areas are being MSHA notes that before issuing a hazardous conditions. When questions citation for a violation of this provision, arise as to whether an anticipated adequately ventilated. Other commenters suggested that the an inspector would normally be change requires prior approval, MSHA total quantity of air to be delivered to a expected to measure the air quantity to is available to provide guidance as to longwall needs to be specified in the determine whether adequate ventilation whether approval is necessary. mine ventilation plan. In support of the is being maintained. Section 75.325 Air Quantity suggestion the commenter stated that Some commenters considered the the inclusion of the word ‘‘total’’ proposed regulation redundant since The quantity of air in cubic feet per recognizes that some mines may use belt operators must already maintain minute (cfm) is an important measure of air at the set up or tear down phase minimum air quantities at the face, underground coal mine ventilation. It is while some intake air may be diverted thereby making repairs necessary to essential for miners’ health and safety to ventilate bleeders, battery chargers or maintain the required quantity. Face that each working face be ventilated by compressors and, therefore, the total ventilation controls are a critical feature a sufficient quantity of air to dilute, quantity of air being delivered to the of reliable ventilation. As such, render harmless, and carry away longwall face should be the figure with maintaining these controls in good flammable and harmful dusts and gases which MSHA is concerned. The condition and making repairs necessary produced during mining. An commenter stated further that the to restore ventilation is sound safety insufficient quantity of air at a working recommendation recognizes that practice. To do less invites increased face could permit methane to conditions vary greatly from mine to risk of a methane ignition and elevated accumulate and lead to an explosion. mine, coal seam to coal seam, even from respirable dust. Also on a practical level Section 75.325 generally establishes the one longwall panel to the next panel of most miners on a working section do quantities of air that must be provided the same mine. The commenter added not have a means of measuring air and the locations underground where that while a specified amount of air can quantities. However, miners can these quantities must be provided. be delivered to a recovery face, and determine when ventilation controls are Section 75.325(d) requires that areas pressure can be placed on the gob, it is damaged appreciably and are likely to where mechanized mining equipment is impossible to guarantee a specified adversely affect the air quantity. being installed or removed be ventilated volume or velocity of air at the recovery One commenter indicated that entire and that the minimum quantity of air point. working sections might be shut down to and the ventilation controls necessary to MSHA agrees that the total air repair a ventilation control at any one provide these quantities be specified in quantity provided to a recovery face is face with no corresponding safety the approved mine ventilation plan. The of importance; however, the distribution benefit. The final rule provides that final rule adds the word ‘‘minimum’’ to of this air is also important. The volume ‘‘production activities in the working the phrase, ‘‘quantity of air’’ that of air being delivered to the longwall place shall cease’’ until adequate appears in the existing standard and the face during equipment removal is ventilation is restored. Unless elevated proposal. The existing standard was important because of the types of methane levels or some other problem reproposed without change. An in- activities that occur (e.g. cutting and existed, the entire section would not be depth discussion of the reproposal of welding and the operation in some cases shut down for repair of a ventilation provisions concerning the installation of considerable numbers of diesel control. and removal of mechanized mining powered vehicles) and the fact that it is Some commenters asserted that equipment is presented in the General along the face that the majority of controls may be slightly damaged while Discussion section of this preamble. miners work and where an ignition still maintaining quantities in excess of Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9781 the requirements at the face. Similarly, whether methane checks are are ventilated to reduce the likelihood commenters worried that numerous representative of face concentrations; of an accident on one section impacting citations would be issued based solely maximum feasible cut depth and another section, with deadly on the appearance of the controls, even ventilation device distance; respirable consequences. Generally, § 75.332 though the minimum required face air dust in ‘‘deep cuts;’’ proper provides that each of these areas must quantities are exceeded. These maintenance of ventilation control be ventilated with a separate split of commenters stated that the only reliable devices; how ventilation is maintained fresh air that has not been used to indicator is an air measurement. after the continuous miner is withdrawn ventilate another working area or an MSHA agrees that the only precise from the cut; roof bolter ventilation; and area where mining has ceased if this indicator of air quantity is a differences between scrubber systems area cannot be examined. When measurement. Accordingly, MSHA and sprayfan systems. Another ventilated in this manner, the products anticipates that noncompliance commenter noted that historically most from a fire on one section will not decisions will be based on air roof fall fatalities have occurred within contaminate another section and measurements which show ‘‘ventilation 25 feet of the face. This commenter methane in worked-out areas will not be of the working place is inadequate.’’ asserted that the deep-cut mining carried to working sections by the However, ventilation controls which are system helps to resolve this problem ventilating air stream. in poor condition are likely to cue an and reduce exposure. The commenter The final rule provides that each inspector to conduct an air continues that to prohibit any variation working section and each area where measurement. from the 10 foot line curtain distance mechanized mining equipment is being Other commenters generally requirement would adversely affect installed or removed, shall be ventilated expressed the view that the safety of the miners working in the area. by a separate split of intake air directed requirements of § 75.330, even MSHA agrees that each of these issues by overcasts, undercasts or other considering the proposed revision, are is important. The appropriate vehicle to permanent ventilation controls. The inadequate to fully address the issue of address these specific concerns is the final rule adopts the language of face ventilation. According to these mine ventilation plan required by proposed § 75.332(a)(1), which is commenters, additional requirements existing § 75.370. The mine ventilation identical to existing § 75.332(a)(1). An are needed, including: proper plan provides the necessary latitude to in-depth discussion of the reproposal of installation and maintenance criteria for address the diversity of mining provisions concerning the installation face ventilation control devices, conditions found throughout the and removal of mechanized mining requirements for providing devices country. Details of each system must be equipment is presented in the General continuously from the last open shown in the plan and must be specific Discussion section of this preamble. crosscut to the working face, immediate to the conditions at each mine where Several commenters responded to repair of these devices if damaged by a such a system is employed. Also, § 75.332(a)(1). Some commenters fall or otherwise, providing sufficient MSHA’s review and approval of mine suggested that the standard be revised to space between the line curtain and the plans includes an onsite investigation to permit the installation of mechanized rib and maintaining the area free of evaluate the system and to assess the mining equipment in either the return obstructions, and minimizing leakage adequacy of the specified plan or intake air courses of working sections while providing installations which parameters. In addition, inspectors provided the air had not been used to permit traffic to pass without adversely routinely evaluate the suitability of the ventilate any worked-out areas, areas affecting ventilation. Further, the mine ventilation plan during regular where pillars have been recovered, or commenters asserted that only mine inspections. bleeder systems. The commenters cumulatively can the desired result be The commenter’s concerns about maintained that prohibiting the obtained through these requirements methane checks in ‘‘deep cuts’’ is installation of longwall equipment on and that additional requirements would addressed by the final rule the same split of air as a developing unit empower individual miners to take § 75.362(d)(2) which requires that delays the installation of a mining corrective actions when needed. methane tests be made ‘‘at the face.’’ system. The commenters further Each of these suggestions is a This new requirement will assure that observed that this mining equipment desirable ventilation practice which measurements are taken at the location consists mainly of steel conveyor MSHA supports. However, the final rule where the hazard is most likely to occur. sections and roof supports that contain is not intended to set detailed standards Testimony received at the public a 95 percent water-based hydraulic fluid for the installation of ventilation control rulemaking hearings indicated that which does not burn. Therefore, devices. Instead, the rule addresses technology exists in the form of according to these commenters, minimum requirements for face air extendable probes that can be used to longwall mining equipment can safely quantities and requires the face take these measurements, without be installed on the intake side of an ventilation system used to deliver these putting miners at additional risk from active mining unit and, with quantities to be maintained. fall of ground. monitoring, in the return air course of Some commenters indicated a an active mining unit. concern about so-called ‘‘deep-cut’’ Section 75.332 Working Sections and The safety benefits of using separate mining wherein continuous miners, by Working Places splits of air to provide ventilation are remote control, develop cuts from 25 to Working sections and working places well established. A primary benefit of 60 feet inby permanent roof support. are the areas of a coal mine with the such a provision is to protect workers Commenters questioned the adequacy of greatest amount of activity and the down-wind from being put at risk by face ventilation where ventilation largest concentration of workers. They events up-wind from their location. controls may be 30 to 50 feet from the are the location of the greatest number Among the most serious of these risks face. Specifically, questions were raised of potential ignition sources. They is miners being overcome by the about: whether adequate ventilation therefore harbor the greatest risk of products of combustion or an explosion. actually reaches the face in ‘‘deep cuts’’ accidents such as methane ignitions and In Miner’s Circular 50, ‘‘Explosions to dilute methane; whether more explosions and equipment fires. Section and Fires in Bituminous-Coal Mines’’ frequent air measurements are needed; 75.332 addresses the ways these areas published by the Bureau of Mines in 9782 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations

1954, the authors state that when air in part to the improper use of a The use of continuous haulage travels a long path through a mine, it temporary ventilation control where a systems, particularly in low seam coal gradually becomes depleted of oxygen permanent control (i.e., an overcast) mines, is becoming more common. The and may become so contaminated with should have been used. More recently, final rule specifically addresses other gases that it no longer is healthful, the explosion that occurred during the continuous haulage systems in or it may accumulate enough explosive set up of a longwall at the Golden Eagle paragraphs (b)(1), (b)(3) and (b)(4) of the gas to present an explosion hazard. The Mine in 1991 which injured 11 miners rule and clarifies where temporary authors go on to state that when the air involved the removal of two permanent controls are an acceptable means of is divided into several splits, each ventilation controls and the replacement ventilation control when these systems traveling a short path, better air can be of these controls with temporary are used. Continuous haulage systems furnished to each group of persons in controls. As these and other accidents utilize mobile bridge conveyors or the mine. Further, if a local explosion or illustrate, the ventilation controls that similar mechanisms to transport coal fire should occur, the poisonous gases deliver air to working areas are vitally directly from a continuous mining evolved may be confined to one section important to miners’’ safety. Therefore, machine to a low profile belt. As the and the force of the explosion and the the final rule requires that these controls continuous mining machine moves from gases may kill all the persons in that be permanent in nature and not place to place, the continuous haulage particular section but may not affect temporary. system slides back and forth along a low other sections of the mine. According to Another commenter indicated that the profile conveyor belt using a ‘‘dolly’’ or the authors, when a mine is ventilated use of temporary controls would lower other travel mechanism. The low profile by a continuous current of air, the worker exposure to hazards by not conveyor belt then transports the coal to miners on the return side of an requiring repeated handling of the section conveyor belt. explosion or fire probably will be killed permanent control materials which can The existing rule permits the use of or overcome by the poisonous gases and be heavy. Proper handling practices and temporary ventilation controls in lieu of that judicious splitting of the air is a modern materials can reduce the risk of permanent ventilation controls to safeguard against this eventuality. injuries associated with handling separate continuous face haulage Similarly, Stefanko states in the 1973 construction materials. MSHA considers systems from return, intake, and edition of the Society of Mining these risks lower than the dangers of primary escapeway entries in rooms Engineers (SME) Engineering Handbook using temporary controls in lieu of developed 600 feet or less from the centerline of the entry from which the that splitting the air is recognized as permanent controls. being necessary for safety and presents rooms were developed. This practice is only minimal power cost. Section 75.333 Ventilation Controls consistent with longstanding MSHA The commenters implied that because policy, which recognizes that these The primary means for directing air longwall mining equipment is largely rooms are used for a short duration and from the outside, through the mine noncombustible, this danger is the minimum air quantity must be openings, to the working areas and back minimized for workers down-wind on maintained regardless of the controls to the surface is through the use of an active mining section. This reasoning used. overlooks the fact, however, that the ventilation controls: either permanent Existing paragraph (b)(1) allows installation of a longwall is labor- controls, such as stoppings (walls), temporary controls to separate intake intensive, involving cutting and welding overcasts or undercasts (air bridges), and return air courses in rooms driven in the presence of methane and coal, as and doors, or temporary controls, such 600 feet or less from the centerline of well as machinery operating under load. as line brattice (curtains). Permanent the entry from which the room was These conditions add contaminants to ventilation controls are designed for developed. The final rule adds to the ventilating current, and increase the long term use while temporary controls existing paragraph (b)(1) the proposed possibility of a fire or explosion. are intended for use on a short term language clarifying that the use of Likewise, a longwall being installed on basis. In general, § 75.333 specifies temporary controls in these rooms is the return side of an active mining where each type of control can be used also acceptable when continuous section would expose the miners doing and how each permanent control is to haulage systems are used. This change the installation to the dust and gases, be constructed. It is essential that responds to commenters who point out and the results of a fire or explosion, ventilation controls be correctly that the rooms in which the continuous from the section. Even with monitoring, constructed, maintained, and properly haulage systems are installed are miners would be put at risk as their located to provide ventilation to continuously attended by the operators opportunities for escape would be working sections and other areas where of the system and an immediate limited. For these reasons, the final rule it is needed to dilute methane, response to any safety related problem does not adopt the commenters’’ respirable coal mine dust and other with the system or the ventilation suggestion. contaminants, and provide miners with controls would be expected. One commenter also suggested that a safe and healthful work environment. Commenters also noted that two or three ‘‘approved ventilation controls’’ be The final rule revises paragraphs (a), rooms are often concurrently developed required instead of specifying that (b)(1), (b)(3), (b)(4) and (e)(1) of existing using a continuous haulage system and overcasts, undercasts or other § 75.333, and adds a new paragraph (h). the life of the actively developing rooms permanent ventilation controls be used Revisions to paragraphs (a) and (e)(1) is often less than three days. As a result to direct intake air. The commenter address the durability of stoppings, of this short life, mining in these rooms explained that this would allow while the revisions to (b)(1), (b)(3) and is often completed before construction operators the flexibility of submitting (b)(4) address ventilation controls of permanent controls is finished. Also, plans that allow the use of temporary required when continuous haulage access to the continuous haulage system controls in some instances. systems are used. New paragraph (h) is required through crosscuts for Temporary controls to split air are not requires all permanent ventilation maintenance and operation of the as reliable as permanent controls. The controls, including seals, to be system. first explosion at the Scotia Mine in maintained to serve the purpose for Under paragraphs (b)(3) and (b)(4) the 1976 which killed 15 miners, was due which they were built. proposal would have required belt and Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9783 intake separation to the outby travel continuous haulage systems, while However, MSHA sees merit in some of point of the dolly and belt and primary preserving the integrity of the the suggestions made by commenters. escapeway separation to the inby most ventilation system. At present, MSHA Commenters suggested that some travel point. Commenters indicated would expect that the most outby point constructions can not be tested confusion because of the distinction of travel of the dolly would govern since according to the ASTM test, some between intake and primary escapeway MSHA is not aware of any continuous constructions that are widely used in separation and believed that conflicts haulage systems which travel more than coal mines do not meet the 39 pound would exist. Commenters also suggested 600 feet outby the point of deepest per square foot threshold, and the that the language proposed to address penetration. ASTM test can only be run at a limited the use of temporary ventilation Paragraph (b)(4) of the final rule number of locations nationwide. controls for continuous haulage systems continues to require permanent After reviewing all of the comments was confusing and contradictory. The stoppings or other permanent received and based on experience with final rule revises the requirements of ventilation control devices to separate various construction methods and proposed paragraphs (b)(3) and (b)(4) to the primary escapeway from the belt materials used for permanent respond to these comments. and trolley haulage entries, as required ventilation controls since the inception Paragraph (b)(3) of the final rule by § 75.380(g). Commenters suggested of the Mine Act, the final rule retains the requirement that permanent that for the purposes of § 75.380(g), the recognizes traditionally accepted controls be provided to separate belt definition of loading point in proposed construction methods for permanent conveyor haulageways from intake air paragraph (b)(4) be revised to be the ventilation controls, and retains the courses when the air in the intake air outby point of travel of the dolly as ASTM test for new materials and course is used to provide air to active opposed to the inby point of travel. The methods. Controls made with new working places. The final rule also final rule adopts this suggestion and materials or methods must be retains the proposed provision that requires separation by permanent comparable in strength to controls made when continuous haulage systems are stoppings to be maintained to the outby with traditionally accepted materials or used in rooms less than 600 feet from point of travel of the dolly or 600 feet methods. the centerline of the entry from which from the point of deepest penetration, Since the inception of the Mine Act, the rooms were developed, temporary whichever distance is less, to separate a number of traditionally accepted stoppings or other temporary ventilation the haulage entry from the primary construction methods have performed controls may be built and maintained to escapeway. The provisions of provide the required separation. § 75.380(g) continue to allow the district adequately and have served their Commenters stated that new manager to require a greater or lesser intended function of separating air technology may result in continuous distance for this separation. courses. These traditionally accepted haulage systems with the outby point of In response to questions about construction methods are: 8-inch and 6- travel of the dolly extending acceptable construction methods and inch concrete blocks (both hollow-core considerably beyond the 600 feet materials for permanent ventilation and solid) with mortared joints; 8-inch distance. The commenters noted that controls (excluding seals) MSHA and 6-inch concrete blocks dry-stacked such an extended length of temporary proposed eliminating the definition of and coated on both sides with a strength controls could result in unanticipated ‘‘durable’’ in paragraph (a) and to enhancing sealant suitable for dry- adverse consequences for the ventilation modify paragraph (e)(1). The proposal stacked stoppings; 8-inch and 6-inch system, and suggested that a maximum would have required these controls to concrete blocks dry-stacked and coated distance of 300 feet outby the inby point be constructed in a manner and of on the high pressure side with a of travel of the dolly be established for materials that result in a construction strength enhancing sealant suitable for the use of temporary ventilation that has been tested and shown to have dry-stacked stoppings; steel stoppings controls. MSHA agrees that extensive a minimum strength of 39 pounds per (minimum 20-gauge) with seams sealed use of temporary ventilation controls square foot as tested under ASTM E72– using manufacturer’s recommended can create problems, including 80 Section 12—Transverse Load- tape and with the tape and perimeter of excessive leakage and the possible short Specimen Vertical, load only (ASTM the metal stopping coated with a circuiting of air. The final rule, E72–80). The 8-inch hollow-core suitable mine sealant; and lightweight therefore, limits the distance that concrete block stopping with mortared incombustible cementatious masonry temporary controls may be used to joints, to which all other constructions blocks coated on the joints and separate continuous haulage systems were tied under the definition of perimeter with a strength enhancing from intake air courses, including the durable in the existing standard, has sealant suitable for dry-stacked primary escapeway. The final rule been tested and shown to have a stoppings. In addition, 4-inch concrete permits temporary controls to be used minimum strength of 39 pounds per blocks may be used in the above from the point of deepest penetration of square foot. applications in seam heights less than the conveyor belt entry to the most MSHA received numerous comments 48 inches. Tongue and groove 4-inch outby point of travel of the dolly or 600 questioning the validity of the ASTM concrete blocks coated on both sides feet, whichever distance is the less. As E72–80 test for determining with a strength enhancing sealant a result, 600 feet is the maximum linear acceptability of underground ventilation suitable for dry-stacked stoppings may distance of entry in which temporary controls. Commenters questioned the be used in coal seams of any height. The controls may be used for separation of appropriateness of a strength sealants referred to in this paragraph air courses. The 600 feet would be requirement of 39 pounds per square would be applied in the thickness measured as a straight-line distance foot and the relevance of this value to recommended by the manufacturer. from the point of deepest penetration in the in-mine conditions. After review, MSHA maintains a list of sealants the conveyor belt haulage entry. This MSHA continues to believe that use of which may be used for the above approach comports with the 600 foot the ASTM E72–80 test to determine that applications. This list is available at limit for the use of temporary stoppings the relative strength of a ventilation each MSHA District Office. The final in rooms and allows a reasonable use of control construction is appropriate and rule would continue to permit these temporary ventilation controls with the final rule retains this standard. traditionally accepted construction 9784 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations methods to be acceptable for the does not include a standard for Several commenters objected to construction of ventilation controls. construction or installation and including seal construction sequence as For new construction methods or maintenance of temporary stoppings. part of the information to be submitted materials other than those used for the The commenter adds that temporary for approval in the mine ventilation traditionally accepted constructions ventilation controls are a source of plan. Their rationale was that mining identified above, the final rule requires potential leakage and are often conditions change and could result in a that the strength be equal to or greater susceptible to damage from roof and rib change in the sequence of seal than the traditionally accepted in-mine falls and from mobile equipment. The construction. The construction might controls. Tests may be performed under commenter also refers to several then be delayed while approval for the ASTM E72–80 Section 12—Transverse accidents where failure to maintain change is obtained. These commenters Load-Specimen Vertical, load only, or permanent or temporary ventilation suggested that in some cases, delays in the operator may conduct comparative controls was a critical factor in the seal construction could result in a in-mine tests. In-mine tests must be accident. hazard to miners. Other commenters designed to demonstrate the MSHA agrees that to properly direct stated that the sequence of construction comparative strength of the proposed the flow of air and provide for adequate of seals is more appropriately and more construction and a traditionally face ventilation, temporary controls, as easily shown on the mine ventilation accepted in-mine control. well as all permanent ventilation map required by § 75.372. Another As with the existing rule, the final controls, must be installed and commenter stated that the sequence of rule would require, in paragraph maintained in an adequate manner to construction should be subject to (e)(1)(ii), that all overcasts, undercasts, control leakage. MSHA has accepted as approval because the placement of seals shaft partitions, permanent stoppings, temporary controls, check curtains or if improperly installed can cause and regulators, installed after November other flame- resistant material approved adverse effects on the ventilation system 15, 1992, be constructed of by MSHA that are constructed and and gob gases. MSHA is sensitive to the noncombustible material. Also, like the installed in such a manner to minimize concern that a delay in approval could existing standard, the final rule lists leakage. As required by paragraph (h) of result in a hazard to miners and, as materials that would be suitable for this section of the final rule, these explained in the preamble discussion of these controls. The final rule would also controls must be maintained to serve the § 75.370, if a delay in seal construction continue to prohibit ventilation controls purpose for which they were built. would result in a hazard to miners the installed after November 15, 1992, from review and approval of the plan can be being constructed of aluminum. Section 75.334 Worked-Out Areas and expedited. Paragraph (h) of the proposal would Areas Where Pillars Are Being MSHA agrees with the commenter have required that all permanent Recovered that the location and sequence of seal ventilation controls, including seals, be construction may be more easily, that is, Worked-out areas, areas where coal maintained to serve the purpose for more clearly shown on the mine map extraction has been completed, can pose which they were built. The final rule required by § 75.372 than in the written deadly hazards to miners, including an retains proposed paragraph (h) with one text of the plan submitted under explosive methane accumulation, revision. One commenter stated that the § 75.371. The existing standard permits irrespirable atmosphere, and the paragraph should require all ventilation appropriate information required under controls, including temporary controls, possibility of fire from spontaneous § 75.371 to be shown on the map to be maintained to serve the purpose combustion. Section 75.334 establishes required by § 75.372. The effect is that for which they were built. Given the the requirements for ventilation of these the information both appears on the importance of temporary controls areas to mitigate these hazards. In ventilation map and in the ventilation devices in providing for adequate general, § 75.334 requires that following plan and is subject to approval. The ventilation, the final rule requires all mining, these areas are to be sealed or discussion of § 75.371(bb) further ventilation controls, both permanent ventilated. Section 75.334 also specifies addresses this point. and temporary, including all doors and the requirements for evaluating the Spontaneous combustion is the seals, to be maintained to serve the effectiveness of the ventilation of process through which coal or other purpose for which they were built. This worked-out areas so operators can materials self heat by the absorption of standard applies to all ventilation determine that the ventilation system is oxygen. Paragraph (f) of § 75.334 controls, regardless of the construction functioning as intended. addresses mines with a demonstrated date. The final rule revises paragraph (e) of history of spontaneous combustion and Relative to seal maintenance, MSHA the existing § 75.334. Existing paragraph those located in coal seams determined does not intend that the maintenance (e) requires that each mining system be to be susceptible to spontaneous requirement be applied to seals located designed so that worked-out areas can combustion. Paragraph (f) requires that within another sealed area. be sealed. The final rule adds to the approved mine ventilation plan for Additionally, the rule does not apply to paragraph (e) the proposed requirement these mines specify the measures that seals which have become consumed that the location and sequence of will be used to detect methane, carbon within a gob area which is ventilated construction of proposed seals be monoxide, and oxygen concentrations and evaluated in a manner approved in specified in the approved mine during and after pillar recovery, and in the mine ventilation plan. ventilation plan. Improper location and worked-out areas where no pillars have One commenter raised several sequencing of seal construction can been recovered; the actions that will be questions concerning what MSHA have a dangerous effect on mine air taken to protect miners from the hazards would consider to be an acceptable quality and ventilation. As the proper of spontaneous combustion; and, if a temporary stopping. MSHA has not location and sequence of construction of bleeder system will not be used, the defined the term ‘‘temporary ventilation seals is a mine-by-mine determination, methods that will be used to control control’’ in the rule. The commenter the mine ventilation plan provides the spontaneous combustion, stated that, in the preamble to the most workable mechanism by which to accumulations of methane-air mixtures, proposal, MSHA refers to ‘‘properly assure proper air quality and ventilation and other gases, dusts, and fumes in the constructed’’ temporary stoppings but of the mine. worked-out area. Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9785

Through meetings with various determine the self heating tendency of combustion leads to a mine operator segments of the mining community, a coal. determination that a bleeder system MSHA became aware of a concern that However, MSHA is also mindful that should not be used. paragraph (f) of existing § 75.334 may some mines that have a spontaneous One commenter stated that this rule is have been promulgated without the combustion problem may be unable to unnecessary because only a limited public being provided the opportunity reduce the oxygen content to a number of mines actually have a to adequately comment. Although sufficiently low level to mitigate demonstrated spontaneous combustion MSHA believes that existing paragraph spontaneous combustion. For these problem. The commenter suggested that (f) was promulgated properly, the mines, a bleederless system may not be the petition for modification (variance) Agency reproposed paragraph (f) with appropriate. To illustrate, it is well process should be used to address this wording identical to that used in known that the oxygen level in a gob issue, which would allow miners existing § 75.334. The purpose of the varies depending on the location where representatives to participate. The final reproposal was to assure MSHA the measurement is made. For example, rule does not adopt this approach. To received and considered all pertinent the periphery of a gob normally will the extent practicable, an objective of comments. have higher oxygen levels than the this rulemaking is to reduce the need for Several commenters to the existing interior of the gob. The oxygen level in exceptions and paperwork. In this case, rule suggested that bleeder systems the interior of the gob is critical when the existing mine ventilation plan should not be required for all mines. dealing with spontaneous combustion. process provides a ready-made These commenters stated that in some If conditions are such that the oxygen mechanism for establishing the mines the practice of ventilating content in critical areas within a gob precautions necessary, on a mine-by- worked-out areas increases the risk of cannot be reduced below that necessary mine basis, to protect miners from the spontaneous combustion by supplying for a methane ignition to occur, a hazards of spontaneous combustion in a oxygen to combustion-prone materials bleeder system may provide the most timely manner. In addition, under the in these areas. They also requested that safety. MSHA specifically solicited final rule, miners representatives are the final rule promulgated in 1992 comment on this subject; however, none afforded input into the mine ventilation include provisions to address was received. plan. Under paragraph (f)(1), the approved Another commenter stated that spontaneous combustion. MSHA ventilation plans for mines that have or paragraph (f) should be directed more to acknowledged the need to reduce the are susceptible to spontaneous the detection and control of flow of oxygen to areas where there is combustion must specify measures to spontaneous combustion and not solely a likelihood of spontaneous combustion, detect methane, carbon monoxide, and at its prevention. The commenter and included in the 1992 rule oxygen concentrations in worked-out offered examples of detection and requirements for mine ventilation plans areas. These measures must be taken control techniques that could be used. to address spontaneous combustion in during and after pillar recovery and in MSHA agrees that spontaneous mines with a demonstrated history of worked-out areas where no pillars have combustion prevention, detection and this hazard or mines that are located in been recovered. The purpose of these control are all important when dealing coal seams determined to be susceptible measures is to determine if worked-out with spontaneous combustion. The final to spontaneous combustion. areas will be ventilated or sealed. If the rule recognizes, however, that while Experience gained through methane concentration or other hazards prevention is the goal, instances of application of the existing standard has in the worked-out area cannot be spontaneous combustion will occur. demonstrated that a limited number of controlled while the mine is limiting Another commenter stated that the mines have experienced spontaneous airflow to avoid spontaneous preamble to the proposal was not combustion problems. Studies by the combustion, it may be necessary to seal correct in that it implied a need to limit Bureau of Mines have identified the or to ventilate the worked-out area using airflow to avoid spontaneous volatile properties of coal seams and a bleeder system. These measures also combustion. The commenter states that, have determined that certain seams are help to determine the extent to which to avoid spontaneous combustion, susceptible to spontaneous combustion. the worked-out areas can be ventilated miners must create a near-zero pressure The final rule is directed to mines in without increasing the spontaneous differential across most areas of these seams. combustion hazard. concern. MSHA agrees that creating a MSHA is not suggesting that all coal Under the provisions of paragraph ‘‘near-zero pressure differential’’ will mines will meet the test to show (f)(2) the operator is required to specify have the desired effect of limiting the susceptibility to spontaneous in the mine ventilation plan the actions airflow. In a paper entitled combustion. A demonstrated history or that will be taken to protect miners from ‘‘Examination of Bleederless Ventilation the determination of susceptibility to the hazards of spontaneous combustion. Practices for Spontaneous Combustion spontaneous combustion is a Protections from the hazards of Control in U. S. Coal Mines’’ presented prerequisite to the applicability of spontaneous combustion might include: at the 7th U.S. Mine Ventilation paragraph (f). While it is true that all Additional continuous monitoring of Symposium in June 1995, the authors coal oxidizes when exposed to air, this fire gases at strategic locations report that their study revealed that fact is not sufficient to make the underground, increased air sample restricting airflow into mined-out areas determination that a coal seam is collection and analysis, trending of air is recognized world-wide as a susceptible to spontaneous combustion. contaminant data, increased spontaneous combustion control MSHA would expect that absent a examinations, and changes to the mine measure and that when designing a demonstrated history of spontaneous ventilation system such as bleederless ventilation system critical combustion in a mine, an operator redistribution of air or pressure attention must be given to mine layout, would provide the necessary data to balancing. This requirement would be seal construction, methane drainage, demonstrate that the mine is susceptible triggered if the mine has a demonstrated regulations, monitoring, and emergency to spontaneous combustion so that the history of spontaneous combustion, or, procedures. In discussing the subject of provisions of paragraph (f) should if an evaluation of the susceptibility of air leakage, Koenning in a paper entitled apply. A number of methods are used to the coal seam to spontaneous ‘‘Spontaneous Combustion in Coal 9786 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations

Mines’’ presented at the 4th U.S. Mine protected with fire suppressions fire suppression systems. The Ventilation Symposium in June 1989, systems, and be ventilated or monitored commenter includes several examples of identified air leakage as the most often to protect miners working down stream fires involving compressors to illustrate cited cause of spontaneous combustion. from the products of combustion. this point. MSHA has addressed In both of these papers, the authors MSHA proposed to revise paragraph concerns relative to compressor fires in emphasize the need to properly design (a) of existing § 75.340 to clarify the the final rule section dealing with a bleederless ventilation system to standard and to add requirements compressors, § 75.344. Other examples reduce the likelihood of spontaneous concerning alarms and sensors. The cited by the commenter included combustion and achieve the level of final rule adopts the language in the explosions caused by mobile equipment worker safety desired. MSHA agrees proposal with one modification. It and a fire that occurred on a power with these authors that a bleederless replaces the word ‘‘located’’ with the center located at the working section. ventilation system must be designed to word ‘‘housed.’’ The instances cited by the commenter encompass all of the factors identified. Existing 75.340(a) requires that are not relevant to § 75.340. The It was suggested by one commenter that certain underground electrical commenter argued that fire suppression measurement of carbon dioxide should equipment be either located in a systems have not worked and uses the be included in the requirements of noncombustible structure or area or compressor fires previously mentioned paragraph (f). In discussing the gases equipped with a fire suppression to illustrate the point. MSHA notes that required to be measured (methane, system. Section 75.340 (a) also requires there are numerous instances where the oxygen, and carbon monoxide), the that the equipment be ventilated by systems have worked. However, in the commenter stated that these gases alone intake air, and lists alternatives ways to vast majority of these cases there is no will not aid in the detection of do so in paragraphs (a)(1),(a)(2), and documentation because there is no spontaneous combustion in its incipient (a)(3). The final rule adds language to requirement for reporting fires that are or developed stage. The commenter paragraph (a)(3), the alternative which extinguished within 30 minutes. suggested that miners be required to establishes an acceptable means for The final rule in paragraph (a)(1)(iii) monitor for carbon dioxide because, in monitoring the underground electrical revises existing paragraph (a)(3) of the opinion of the commenter, the trend installations using sensors other than a § 75.340 by adding 2 requirements. It in the ratio CO/CO2 is the only viable § 75.351 atmospheric monitoring adds a requirement that a visual and predictor. system. audible alarm be provided on MSHA sees merit in the measurement MSHA sought in the proposal to installations if the (a)(1)(iii) alternative of carbon dioxide as well as other clarify the application of existing is selected. Also, when operating under products of combustion to assist in the § 75.340(a)(3). Paragraph (a)(3) of the this alternative, monitoring of intake air detection of spontaneous combustion. existing rule provides for the activation that ventilates battery charging stations However, the ratio CO/CO2 is not the of doors upon the presence of certain must be done with sensors not affected only viable predictor of spontaneous indications of a possible fire. The by hydrogen. combustion. One researcher suggested paragraph was appropriate for enclosed Some commenters noted their that carbon monoxide production is the structures or areas; but questions at agreement with these proposed changes. earliest, detectable effect of spontaneous informational meetings challenged its Noting that no single system is failsafe, heating. Others have suggested, applicability to the alternative where a one commenter suggested that all the following a series of tests, that four gas fire suppression system was used requirements of § 75.340 be combined ratios clearly indicated the development without an enclosure. To address the and made applicable in all cases. The of thermal runaway, but only the CO2¥ questions, the proposal placed the requirements would include; >O2 ratio gave an early warning of the requirements for noncombustible noncombustible structures, fire heating in the coalbed. structures or areas and for fire suppression, ventilation directly to the As can be seen, a number of methods suppression systems into separate return, additional communications, of predicting the onset of spontaneous paragraphs. MSHA proposed that one of continuous AMS monitoring for carbon combustion have been suggested. While the alternatives for ventilating with monoxide, methane, and hydrogen, paragraph (f)(1) requires only the intake air (monitoring the underground along with automatic closing doors and measurement of methane, oxygen, and electrical installations using sensors temperature protection. After carbon monoxide, MSHA would not other than a § 75.351 atmospheric consideration of the comments and the discourage operators from monitoring system) was acceptable only underlying rationale, MSHA concludes incorporating, as part of the mine if the equipment was located in a that to require that the alternatives be ventilation plan, any or all of these noncombustible structure or area and applied cumulatively in every case methods as well as other appropriate not acceptable if only a fire suppression would be infeasible or impractical. In methods to aid in the early detection of system was used. This revision addition, MSHA does not believe that spontaneous combustion. eliminates the confusion that existed these overly restrictive requirements are with the existing rule. It should be necessary in all circumstances. Section 75.340 Underground Electrical noted that if an operator elects to locate Paragraph (a)(1)(iii) addresses Installations this equipment in a noncombustible electrical installations that are equipped Electrical installations can provide an structure or area, the operator would not with doors that automatically close ignition source for methane and can be precluded from also installing a fire when sensor readings reach certain represent a serious fire hazard suppression system. levels. One of these action levels is a underground. Typical electrical One commenter questioned the reason level for the optical density of smoke. In installations are battery charging for separating fire suppression and § 75.340 (a)(1)(iii)(B) of the proposal and stations, substations, rectifiers and noncombustible structures, noting that the preamble discussion on page 26371, certain water pumps. Section 75.340 there was no need for the distinction in MSHA refers to the optical density of requires that these installations be the rule. In objecting to the proposal, the smoke of 0.05 per meter to characterize ventilated and protected against fire. commenter stated that there should be the sensitivity of smoke detectors. As These installations must also be housed several cumulative layers of protection, discussed in MSHA’s opening statement in noncombustible structures or areas or including both fireproof enclosures and to the ventilation rulemaking hearings, Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9787 the value used for the optical density of caused by battery chargers. The meaningful distinction between the two smoke is based on information provided requirements are necessary to safely words. However, because the word from the Bureau of Mines. MSHA operate chargers, regardless of the suggested by the commenter will not pointed out that based on comments location of the charger. reduce safety and may add to the clarity received from the Bureau of Mines, this One commenter suggested that all of the rule for some readers, it has been number is incorrect and should be water pumps should be exempted from adopted in the final rule. divided by 2.303 to conform to the § 75.340 because fire history is limited. Section 75.342 Methane Monitors internationally accepted term of optical The standard already exempts pumps density. No commenter took issue with that have limited fire hazard potential in Methane monitors are a critical link in this point. MSHA has made the paragraphs (b)(2) through (b)(6). Pumps the safety protections designed to correction in the final rule. One outside of the listed categories do prevent mine explosions. Mounted on commenter suggested that optical present hazards. As an example, a 200 mining equipment which works directly densities be increased and based on an horsepower pump exploded at a mine in in the face, these instruments provide ambient to account for background dust. Virginia after an extended period of the first warning that gas is being In contrast, another commenter being overheated. An example of a liberated in potentially dangerous suggested that the specified optical pump posing a limited hazard is an quantities. Methane monitors are relied density should be reduced by half. emulsion pump located at or near the upon to shut down mining equipment MSHA has found insufficient section that is moved as the section automatically when gas concentrations justification to adopt either of these advances or retreats. Emulsion pumps reach 2 percent. The continued suggestions and believes that the are considered for the purpose of operation of mining equipment under specified 0.05, corrected to 0.022 based § 75.340 to be water pumps. these conditions can lead to a spark and on comments from the Bureau of Mines, Also, one commenter called attention catastrophic explosion. is the appropriate level for optical to MSHA’s omission of the word ‘‘or’’ in The final rule revises paragraph (a)(4) density used in § 75.340. Existing two places in § 75.340, Underground which addresses maintenance and § 75.351 Atmospheric monitoring Electrical Installations. MSHA agrees calibration of methane monitors that are system (AMS), uses a level for optical that the omission was inadvertent and required on underground mining density of smoke of 0.05 per meter. so stated in its opening statement at the equipment to provide a warning to MSHA recognizes that the level in ventilation hearings. In § 75.340, the equipment operators when the methane § 75.351 should also be corrected. word ‘‘or’’ has been inserted between concentrations nears dangerous levels. MSHA intends to correct the level for paragraphs (a)(1) (i) and (ii) dealing with Methane monitors also automatically optical density used in § 75.351 in a alternative ventilation requirements for deenergize the equipment when future rulemaking. In the meantime, noncombustible structures or areas and methane approaches the explosive range MSHA will use an optical density of between paragraphs (a)(1)(iii) (A) and or if the monitor is not operating 0.022 per meter for purposes of § 75.340. (B) setting out criteria that would govern properly. The rule requires that trained The visual and audible alarm required the activation of automatic closing persons perform maintenance and in paragraph (a)(1)(iii) must be situated doors. calibration of the methane monitors at so that it can be seen or heard by Another commenter suggested that least every 31 days and requires that persons traveling in the intake entry the signal from the visual and audible calibration records be maintained. The immediately adjacent to the installation. alarms required by existing paragraph final rule does not adopt the proposal It was suggested to MSHA that these (a)(3) should be sent to a surface which would have required that a electrical installations may be location at the mine rather than being written maintenance program be susceptible to fire and the fire could go located outside the installation. The available for inspection. undetected. The visual and audible commenter supported the suggestion by Some commenters expressed the view alarms would provide additional safety indicating that a quicker response that the proposed revisions were at these installations by alerting miners would thus be provided since the alarm unnecessary and recommended that in the area. would be immediately noticed. In order they be deleted from the final rule. One commenter suggested that an to achieve an effective level of safety, Other commenters supported the alternative should be added to carbon MSHA has provided in paragraph proposed revisions and urged MSHA to monoxide or smoke detection. The (a)(1)(iii) that the visual and audible adopt additional requirements as well. suggested alternative would be to permit alarm be located outside of and on the Paragraph (a)(4) of the final rule another means that would be approved intake side of the enclosure. This requires that calibration and by the district manager. This suggestion location will permit persons traveling in maintenance of the monitors be has not been adopted since both carbon the intake entry immediately adjacent to performed by persons properly trained monoxide monitoring and smoke the installation to see or hear the alarm. in maintenance, calibration, and detection have been shown to be Paragraph (a)(2) allows the use of an permissibility of the methane monitors. effective and reliable and can be used. alternative system using an AMS which One commenter expressed the view that One commenter stated that battery would provide an alarm at the surface no change was needed to the existing chargers located on working sections do of the mine. rule. However, the rulemaking record not present the same hazards as those Finally, one commenter objected to also contains a number of examples in located outby, along the intake. The the use of the word ‘‘located’’ in the which poorly maintained or improperly commenter suggested that chargers phrase ‘‘located in noncombustible repaired methane monitors have been located on working sections should be structures or areas’’. The commenter found during the investigations of exempted from § 75.340. MSHA argued that MSHA should use the word methane related accidents. disagrees. MSHA believes that battery ‘‘housed’’ and that the use of the word The final rule in paragraph (a)(4)(ii) chargers present the same safety hazards ‘‘located’’ actually reduces the requires that each operator maintain a associated with other electrical protection intended by Congress. MSHA record of all calibration tests of methane equipment plus the charging of batteries does not agree with that interpretation monitors. As with other recordkeeping results in the liberation of hydrogen. and maintains that in the context in requirements under the final rule, There is a demonstrated history of fires which the word is used there is no records must be maintained in a secure 9788 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations book that is not susceptible to alteration, monitors were provided. An opposing all permissible equipment, including or may be kept electronically in a comment indicated that an expansion of methane monitors, to be maintained in computer system so as to be secure and the methane monitor coverage was not permissible condition. MSHA agrees. not susceptible to alteration. Some necessary since methane is rarely Section 75.344 Compressors commenters recommended that a record associated with outby areas. Because of be kept of all maintenance performed on the response time of methane monitors, Section 75.344 deals with the use of a methane monitor, urging that a record and considering the speed at which air compressors underground. As is necessary to prove the maintenance is most outby equipment normally discussed in the introductory section of done. MSHA believes that the revisions operates, it is unlikely that a monitor this preamble, MSHA stayed § 75.344(a) contained in the final rule, together with would prevent a machine from entering because of a concern over a possible the existing requirements, will assure an a body of methane if such a overheating or fire hazard. Improperly appropriate level of maintenance concentration were encountered. MSHA used or maintained air compressors can without the need for additional records believes that methane monitors are present a significant risk of fire of maintenance. suitable and effective in face areas underground. MSHA determined that Some commenters expressed concern where coal is being cut, mined, or the cause of the 1984 fire at the Wilberg over the security of computer-based loaded. However, MSHA does not Mine that claimed the lives of 27 miners records, and offered examples of believe that an expansion of coverage to was an improperly maintained breaches of security in the banking and include all nonpermissible equipment is compressor. In general, § 75.344 national security fields. Others, warranted. requires that most compressors be however, advocated the use of A number of commenters operated only while attended or located computers for the storage and retrieval recommended that methane monitors in a noncombustible structure or area of records as being highly accurate, should be calibrated at least every 7 that is monitored for temperature and requiring less storage space and days rather than at least every 31 days carbon monoxide or smoke; have a fire facilitating data retrieval. MSHA agrees as provided by the existing standard. suppression system; and, automatically that security of required records is One commenter suggested daily shut down in the event of a fire. important. It is also MSHA’s objective to calibration. Commenters noted that The final rule revises the existing make the final rule requirements for methane monitors lose sensitivity and § 75.344, including the stayed paragraph compilation and storage of records that response time increases with (a), and supersedes interim § 75.345. practical and in concert with modern monitor age and after exposures to The final rule recognizes that in some methods. To this end, the final rule elevated methane concentrations. The cases compliance with the existing rule requires that the record of maintenance existing requirement for calibration of could result in heat buildup when a and calibration of methane monitors be methane monitors at least every 31 days compressor is located in a maintained in secure books that are not parallels the recommendations of noncombustible structure or area. To susceptible to alteration, and also several manufacturers. The 31 day address this possible hazard the final permits these records to be maintained requirement establishes a maximum rule provides an option. A compressor electronically in a computer system so time interval between calibrations. would be acceptable when not located as to be secure and not susceptible to However, the final rule also requires the in a noncombustible structure or area alteration. The calibration record will operator to maintain methane monitors provided it is continuously attended by aid operators in tracking calibration in permissible and proper operating someone who can see the compressor at activity and will serve as a check to condition. Thus, under unusual all times, activate the fire suppression assure that calibrations are being circumstances of use, it is possible that system and shut off the compressor. conducted at least once every 31 days. weekly or even more frequent Also, the existing rule is modified for The record will also be reviewed by calibration may be necessary to comply compressors that are located in a authorized representatives of the with the standard. noncombustible structure or area. They Secretary and miners’ representatives to Comment was also received must be ventilated by intake air coursed determine that calibrations are being recommending an additional directly into a return air course or to the conducted as required. requirement that calibration records be surface and equipped with sensors to Paragraph (a)(4)(iii) of the final rule countersigned by the Maintenance monitor for heat and for carbon requires that operators retain the record Supervisor or Chief Electrician at the monoxide or smoke. In addition, upon of calibration tests for 1 year from the mine. The final rule does not adopt this the activation of the fire suppression date of the test. Records are to be recommendation. The purpose of the system, the compressor must maintained at a surface location at the calibration record required under the automatically deenergize or shut off. mine and made available for inspection final rule is not the same as other The final rule does not include by authorized representatives of the records where countersigning is proposed paragraph (b)(2) which Secretary and the representative of required by the final rule. provided an additional alternative miners. A discussion of comments Countersigning requirements are means of ventilating compressor concerning the use of computers to directed at informing upper mine installations located away from working maintain records can be found in the management of hazardous conditions sections and near a return air course General Discussion of this preamble. which require their attention. While the where a substantial pressure differential Several commenters suggested that calibration record has the potential to exists. equipment not operated in the face area assist mine management in identifying Comments were solicited on the also be equipped with methane equipment problems, its main function exemption for compressors having a monitors. Commenters noted accidents is to assist operators in assuring that certain maximum horsepower. which have occurred when this timely calibration is occurring. Comments were received both nonpermissible equipment has ignited The proposal would have required supporting and opposing a possible methane in outby areas. Commenters that operators adopt a written revision to increase the limit from 5 to also asserted that equipment used for maintenance program for methane 30 horsepower. Because of the history of the withdrawal of personnel during fan monitors. Commenters pointed out that compressor fires, including the 1984 stoppages would be safer if methane the existing standard already requires Wilberg mine disaster which resulted in Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9789

27 fatalities, the existing limitation of 5 compressor. Polyalphaolefins, purpose of clarifying the requirement, horsepower has not been revised. One polyglycols, and mineral oil blends all the final rule includes the commenter’s commenter questioned the proposal contain hydrocarbons and have a recommendations. Compressors which reference to 9 mine fires which started tendency to varnish and create deposits have been disconnected from the power in compressors between 1970 and 1992. in air compressors. Accordingly, the or fuel source would not be subject to The commenter suggested that the nine final rule, like the existing rule, exempts the requirement under the final rule. fires was inaccurately low and compressors of five horsepower or less Another commenter suggested that referenced an MSHA report which and the suggested revision to 30 the person specified in paragraph (a)(1) stated that 21 compressor fires occurred horsepower has not been adopted. be trained. The commenter noted that between 1977 and 1987. The preamble One commenter stated that modern the attendant would be of little value if discussion addressing the number of compressor technologies allow for much unaware of the appropriate response to fires was in relation to underground safer rotary screw compressor operation a fire. The commenter suggested that the coal mines. Other compressor fires have using non-defeatable programmed safety person know how to deenergize the occurred at surface coal mines and at controls, synthetic lubricants, automatic machine and activate the fire noncoal mines. Regardless of the fire suppression and shutdown, and suppression system manually. MSHA number of compressors affected, other precautions. Although synthetic agrees and notes that this knowledge is however, the safety concerns remain the lubricants offer some safety required under the proposal by same. enhancement, they do not fully mitigate requiring that the attendant be capable Several commenters suggested that the hazards. Also, considering the of performing these tasks. MSHA the cutoff for application of § 75.344 be accident history including the Wilberg believes that any training necessary to changed from 5 horsepower for all disaster, MSHA has not provided an meet this capability is implicit in the compressors to 30 horsepower for exemption for rotary screw compressors. standard and the proposal has been reciprocating compressors and 5 Existing § 75.344 (a)(1) requires all retained under the final rule. horsepower for all other types of compressors to be located in Another commenter suggested that an compressors. The rationale for this noncombustible structures or areas and attendant be accepted as an alternative recommendation was that reciprocating to be equipped with a heat-activated fire to noncombustible structures or areas compressors of up to 30 horsepower suppression system. During for a maximum of 8 hours. The contain about the same amount of informational meetings it was brought to commenter stated that 8 hours would lubricating oil as 5 horsepower MSHA’s attention that in some provide sufficient time for urgent roof compressors. This suggestion was not instances requiring compressors to be bolting or construction work such as included in the proposal, based on inside such a structure could present a coating stoppings or powering a jack MSHA information (Report No. 06–292– hazard through compressor overheating. hammer. After considering the 87 of the Industrial Safety Division, Upon reviewing this potential effect of comment, the suggested time limit has Pittsburgh Safety and Health the regulation, MSHA agreed. Therefore, not been adopted. MSHA believes that Technology Center) that the before the existing standard could a continuous attendant, always within predominant hazard for fire or become effective, MSHA stayed the sight of the compressor and capable of explosion in reciprocating compressors application of paragraph (a)(1) and responding as required, provides a level is not the lubricating oil, but rather the included the standard in this of protection equivalent to the formation of carbonaceous deposits in rulemaking. protection provided by an enclosure. the discharge system. MSHA received The final rule addresses the potential Therefore, the final rule allows either comments addressing the formation of of compressor overheating by allowing a alternative to be selected. It should also carbonaceous deposits in the discharge compliance alternative to enclosing the be noted that the final rule has been system indicating that the use of compressor. Heat is generated at revised to require either a continuous synthetic oil prevents any carbonaceous considerable rates by operating attendant or containment in a accumulation. Commenters suggested compressors. Improperly used or noncombustible enclosure or area. that all identified hazards would be maintained compressors can present a One commenter suggested that an eliminated through the use of synthetic significant risk of fire. To minimize this alternative be provided in the rule to oils. However, commenters also noted hazard, the rule specifies other allow for video monitoring of that synthetic oils have a higher flash installation and operational compressors as an alternative to point. requirements as well as providing for attendance or noncombustible MSHA has examined the subject of fire detection and fire suppression. As enclosures. MSHA has not adopted the synthetic oils and found that synthetic recommended by commenters, the final suggestion since video monitoring oils can be formulated with rule also provides for audible and visual would not provide an equivalent level polyalphaolefins, polyglycols, silicones, alarms and automatic deenergization or of safety compared to either an esters, phosphate-esters, and di-esters as shut-off. enclosure or attendance. There would the primary ingredient. These Several commenters discussed the be a considerable time delay in compounds are also blended with proposed revisions to paragraph (a). One responding to a video monitor as mineral oils to form synthetic commenter urged that the term compared to a nearby attendant who lubricants. The rate of oxidation is ‘‘operation’’ be clarified, noting that could immediately shut down the varied among these compounds. Of compressors which are designed to compressor, activate fire suppression, these types, only silicone based automatically start when necessary to discharge fire extinguishers, apply rock lubricants exhibit virtually no oxidation rebuild air pressure should be protected. dust, and take other necessary actions. and are used primarily where extremely MSHA considers compressors that are Other commenters addressed an high temperatures are expected. Also, installed to automatically start when allowable distance within which the silicone based lubricants are inherently necessary to rebuild air pressure to be compressor attendant must remain. In fire resistant. Unfortunately, silicone in operation. MSHA agrees that these the preamble to the proposal, MSHA based lubricants are incompatible with compressors should be provided either solicited comments on the proposed reciprocating compressors and will a noncombustible structure (or area) or language, ‘‘can see the compressor at all rapidly lead to failure of the an attendant. Accordingly, for the times’’ versus having the attendant 9790 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations remain within some specified distance. this approach, the proposed paragraph Paragraph (e) of the final rule requires Rationale was solicited for any specific (a)(1) language was deleted. automatic deenergization or automatic distances suggested. Several Commenters indicated confusion over shut off of the compressor if the fire commenters supported the proposal, the similarity of proposed paragraphs suppression system of paragraph (b) is noting that adjustment is inherently (a)(1) and (b)(1) of the existing rule. The activated. A number of commenters provided for high mining heights and final rule combines these two suggested that compressors should have seam undulations since a low requirements in (a)(1). The final rule an automatic shutdown feature that undulating seam would cause the requires both that the person be able to deenergizes or shuts-off the compressor attendant to remain closer to the see the compressor and be capable of when the required fire suppression compressor. Another commenter activating the fire suppression system. system is activated. MSHA agrees. suggested that a maximum distance of Paragraph (a)(2) of the final rule MSHA recognizes that under § 75.1107– 20 feet be specified. The commenter requires that compressors, if installed in 4 automatic deenergization is required if reasoned that a maximum distance of 20 a noncombustible structure or area, be the automatic fire suppression system is feet would assure that the attendant ventilated by intake air coursed directly activated on unattended electrically could react to a fire quickly, noting that into a return air course or to the surface powered compressors. a compressor fire would propagate and be equipped with sensors to Proposed paragraph (b)(2) has been rapidly. The commenter also voiced a monitor for heat and for carbon omitted from the final rule. The concern over travel time in low height monoxide or smoke. MSHA expects that paragraph was intended to provide mines and noted that distances over 20 an air quantity sufficient to cool the additional flexibility for compressor feet might allow a fire to get out of compressor will be provided through installations located away from working control before the attendant could reach the enclosure. The manufacturer’s sections and near a return air course the machine. operation manuals for compressors where a substantial pressure differential Another commenter was concerned often specify an air quantity or a exists. No comments were received in with the proposed requirement in (a)(1) maximum ambient temperature. The support of the proposed standard, while that a person be able to see the sensors required by paragraph (a)(2) a number of comments were received in compressor at all times. The commenter must deenergize power to the opposition. Commenters objecting to the suggested that the term ‘‘close compressor, activate a visual and standard raised concerns about proximity’’ be adopted noting that a audible alarm located outside of and on overheating and stated that the revisions were made unnecessary in view of person could be in close proximity, e.g. the intake side of the enclosure, and in an adjacent crosscut, but not within modified paragraph (a). MSHA agrees. activate doors to automatically enclose sight. The commenter suggested that Historically, when compressors that are the noncombustible structure or area this should be acceptable since the on fire continue to operate, they often when either of the conditions in person would still be able to activate the released oil into the environment, thus paragraph (a)(2)(i) or (ii) occurs. The fire suppression system. MSHA increasing the severity of the fire. For visual alarm should be situated so that disagrees. The suggested situation is not this reason, MSHA believes that safety it can be seen by persons traveling in acceptable since a considerable delay is best served by requiring compressors the intake entry immediately adjacent to could result before detection of a to be deenergized or shut-off when the the enclosure. The sensors must also problem if the person were not within fire suppression system is activated. deenergize or shut-off the compressor in sight of the compressor. In such a case Commenters recommended the person would be relying on the addition to closing the doors of the deenergization in (a)(2) of the final rule. smell of smoke or some indirect means enclosure. MSHA agrees and has the included of detecting a problem. Because of the Paragraph (a)(1)(ii) specifies that the automatic deenergization in (a)(2). One potential fire hazard associated with sensors shall deenergize power to the commenter suggested that alarms be compressors, reaction time is critical. compressor, activate a visual and automatically given at the section and MSHA continues to believe that reaction audible alarm located outside of and on surface and that two-way time is appropriately minimized if the the intake side of the enclosure, and communications be provided at each assigned person can see the compressor activate doors to automatically enclose compressor installation. This at all times, is capable of deenergizing the noncombustible structure or area recommendation has not been adopted the unit, and is capable of activating the when the carbon monoxide since the rule provides the desired level fire suppression system. While agreeing concentration reaches 10 parts per of safety through venting to the return, that reaction time is critical and after million above the ambient level for the automatic fire extinguishment and considering all of the comments, MSHA area, or the optical density of smoke closure of doors, in addition to the finds the arguments for not specifying a reaches 0.05 per meter. These levels are alarms outside the enclosure. set distance to be more persuasive. the same as required by the existing Therefore, the final rule permits rule. As discussed in MSHA’s opening Section 75.360 Preshift Examination compressors to be continuously statement at the ventilation rulemaking The preshift examination is a attended by a person designated by the hearings, the value used for the optical critically important and fundamental operator who can see the compressor at density of smoke is based on safety practice in the industry. It is a all times during its operation. Any information provided from the Bureau primary means of determining the designated person attending the of Mines. MSHA pointed out that, based effectiveness of the mine’s ventilation compressor must be capable of on comments received from the Bureau system and of detecting developing activating the fire suppression system of Mines, this number is incorrect and hazards, such as methane and deenergizing or shutting-off the should be divided by 2.303 to conform accumulations, water accumulations, compressor in the event of a fire. to the internationally accepted term of and bad roof. If a compressor is not enclosed in optical density. MSHA’s remarks were A considerable number of comments accordance with (a)(2), the compressor made in reference to the requirement in were received representing a range of can be operated only while it can be § 75.340(a)(1)(iii)(B). The final rule also opinions on the changes MSHA seen by a person designated by the makes a conforming technical revision proposed. After consideration of all operator according to (a)(1). In adopting to § 75.344(a)(2)(ii). comments received, the final rule Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9791 adopts certain modifications and hour period would be acceptable for the has concluded that, considering the clarifications to the existing standard to entire 8-hour period regardless of shift speed at which underground conditions increase the effectiveness of the preshift schedules. Other comments indicate can change, a reasonable period must be examination. The final rule removes that this suggested modification would identified after which another paragraph (e), redesignates existing be consistent with the original intent examination is necessary. It is not paragraphs (f) through (h) as (e) through and language of section 303(d)(2) of the MSHA’s intent that the preshift be a (g), revises paragraphs (a), (b), and (f) Mine Act, which provides that no continuous examination without a and adds new paragraphs (b)(8) through person, other than certified persons beginning or an end. Rather if the mine (b)(10). designated to conduct the examination, uses regular shifts that are longer than Existing paragraph (a) is divided into is permitted to enter any underground 8 hours in length, the preshift paragraphs (a)(1)and (a)(2) in the final area unless a preshift examination of examination is good for an entire 8-hour rule. Paragraph (a)(1) of the final rule such area has been made within 8 hours interval. Those persons who start their contains the existing general prior to their entering the area. A work shift later than the normal shift requirement that preshift examinations commenter stated that to allow preshifts start time do not need an additional are to be conducted by certified persons at more than 8-hour periods reduces the preshift examination during the designated by the operator. Paragraph protection envisioned by the drafters of remainder of the 8-hour period. (a)(1) also modifies the existing and the Mine Act. MSHA understands the However, a preshift will be required if proposed language in response to concerns and the critical nature of the they are to stay in the area past the end comments, to provide for preshift preshift examinations to monitor the of the 8-hour period. However, in examinations at 8-hour periods. constantly changing conditions accordance with longstanding practice, Paragraph (a)(2) of the proposed rule underground and has revised the rule unplanned short excursions past the 8- would have allowed pumpers to accordingly to provide for an hour period that occur infrequently will conduct an examination in lieu of the examination at 8-hour intervals. be accepted without an additional preshift examination under certain Under the final rule, operators will preshift. For example, miners required conditions. The final rule adopts this establish the 8-hour periods for which to stay an additional short period of approach with 2 changes. The final rule preshift examinations will be time, such as 15 minutes to complete a does not require the pumper to examine conducted. Persons may enter or leave mechanical repair, or due to a mantrip for noncompliance with mandatory the mine, regardless of their shift delay, would not need an additional safety and health standards that could schedule during any established period preshift. The rule simplifies and result in a hazardous condition and for which a preshift examination has clarifies the application of the standard does require that records be made and been conducted. However, another at mines employing creative shift retained in accordance with § 75.363. preshift examination must be completed scheduling. A number of commenters addressed prior to the next 8-hour period if any Comments were received suggesting the application of this standard at mines persons, other than examiners, remain that the regulation should stipulate where extended, overlapping, or other in the mine. As always, no person other 12:00 a.m., 8:00 a.m., and 4:00 p.m. as novel working shifts are employed. than examiners may enter any the beginning of the 8-hour periods for MSHA agrees with commenters that underground area prior to the which preshift examinations would be evolution within the industry in shift completion of a preshift examination. required. This suggestion has not been scheduling has presented a number of The final rule requires three preshift adopted. There is no safety or health questions and controversies regarding examinations where persons are benefit to be gained through prohibiting the standard which must be resolved to underground for more than 16 hours per operators from adopting other 8-hour assure that proper preshift examinations day. At mines with only one 8-hour intervals, e.g., 10:00 p.m., 6:00 a.m., and are conducted within suitable time shift per day only one preshift 2:00 p.m. Also, the standard is not frames. Based on comments, the final examination per day would be required. intended to prevent operators from rule adopts a modification to clarify and Mines working 10-or 12- hour shifts establishing their own work times. For standardize the application of the would conduct preshift examinations example, an operator may elect a preshift examination in recognition of for each 8-hour period during which starting time of 11:00 a.m. for a weekend the use of novel shifts while persons are underground. MSHA agrees project provided the preshift is maintaining the protection of the with comments that the original completed within the 3 hours prior to existing standard. legislation of the Mine Act envisioned the beginning of the shift. Underground working schedules of that preshift examinations would be A commenter suggested that the final three 8-hour shifts per day were conducted for each 8-hour interval that rule not require a preshift examination virtually standard when the previous persons worked underground. Similar to for non-coal producing shifts, where rule was implemented. Currently a the existing requirement, the final rule persons are to work in the shaft, slope, substantial number of mining operations does not require examinations for drift, or on the immediate shaft or slope have work shifts of more than 8 hours. designated 8-hour periods when no one bottom area. Under the commenter’s Other operations stagger or overlap goes underground. suggestion, only that area immediately shifts providing for continuous MSHA recognizes that the final rule surrounding the bottom would need to underground mining activities. Some may cause a limited number of mines to be examined. The rationale given for the mines that operate around the clock perform examinations that are not suggested change is that it is intended schedule persons to begin shifts at one- currently required. These affected mines to bring the standard into conformity or two-hour intervals. In such cases, do not operate 24 hours per day but with ‘‘certain state regulatory controversies and misunderstandings work one or two shifts which exceed 8 programs’’. MSHA is not aware of state have developed regarding application of hours. For example, the final rule regulatory programs which would the current standard. requires two examinations per day at a necessitate a change in the language of Commenters suggested that preshift mine operating one 12-hour shift per the final rule. Additionally, because examinations should be conducted for day. When a mine operates two 10-hour areas where persons are not scheduled distinct 8-hour periods. Under this shifts per day the final rule requires to work or travel are not required to be scenario a preshift examination for an 8- three examinations per day. The Agency examined under the final rule, the 9792 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations change is unnecessary. Therefore, the If, however, after the beginning of the mining has only recently been suggestion of the commenter has not preshift examination, persons are completed and normally work as a part been adopted. assigned to enter the area, the pumper of a crew. Therefore, MSHA does not Paragraph (a)(2) of the final rule may perform a supplemental consider the work assignments to be provides that preshift examinations of examination for other persons in similar enough to merit the same areas where pumpers are scheduled to accordance with § 75.361, provided that consideration and has not included this work or travel are not required prior to the certified pumper is designated by recommendation in the final rule. the pumper entering the areas, if the the operator to conduct such As proposed, paragraph (a)(2) would pumper is a certified person and the examinations. have required that the certified pumper pumper conducts the specified Commenters asserted that pumpers examine for noncompliance with examinations. This standard recognizes cannot conduct quality examinations mandatory safety or health standards that pumpers travel to remote areas of and effectively perform their normal that could result in a hazardous the mine to check on water levels and work duties. Under a previous standard condition, test for methane and oxygen the status of pumps, making regular replaced in 1992, persons such as deficiency, and determine if the air is preshift examinations impractical. The pumpers, who were required to enter moving in its proper direction in the examinations required by pumpers idle or abandoned areas on a regular area to be worked or traveled by the include an examination for hazardous basis in the performance of their duties, pumper. A number of commenters conditions, tests for methane and and who were trained and qualified, recommended the deletion of the oxygen deficiency, and a determination were authorized to make examinations requirement that the certified pumper of whether the air is moving in its for methane, oxygen deficiency and identify and record noncompliance with proper direction in the area where the other dangerous conditions for mandatory safety and health standards pumper works or travels. The themselves. Under the final rule, either that could result in a hazardous examination of the area must be a preshift examination must be made in condition. Commenters cited a number completed before the pumper performs accordance with paragraph (a)(1) before of objections: the requirement would any other work. A record of all a pumper enters an area, or certified detract from miner safety, would hazardous conditions found by the pumpers must conduct an examination significantly and unnecessarily increase pumper must be made and retained in under paragraph (a)(2). the burden on examiners, would accordance with § 75.363. One commenter cited a 1984 incident diminish the quality of the examination, One commenter objected to the at the Greenwich No. 1 mine where would require excessive judgment and proposal stating that areas where three miners were killed in an explosion discretion by the examiners, and require pumpers work or travel should be while entering an idle area to work on examiners to make predictions. After preshift examined. The commenter a pump. The commenter suggested that considering all submitted comments, stated that the proposed revision would an effective preshift examination would MSHA concludes that these comments weaken the protections provided under have prevented the accident and have merit and the final rule does not the existing standard, and that the rule suggests that both a preshift require certified pumpers to examine for would indirectly require that pumpers examination and examinations by violations of mandatory safety and be certified. The commenter noted that qualified pumpers should be required. health standards that could result in a most pumpers are not certified to An adequate preshift examination or hazardous condition. perform examinations, and that it would supplemental examination as specified Under paragraph (a)(2), a record of all be inappropriate to require ‘‘hourly in the final rule, would prevent a hazardous conditions found by the employees’’ to obtain such similar result. One of these two pumper must be kept in accordance certifications. The commenter further examinations is always required under with § 75.363. One commenter objected suggested that the proposed revision the final rule before persons enter any in that all of the records resulting from could infringe on the traditional such idle area. a preshift examination would not be relationship between labor and Also in addressing paragraph (a)(2), required of the pumper, such as the management wherein only management one commenter suggested that some locations of air and methane is required to be certified. The final rule certified persons who are pumpers may measurements and the results of does not require that pumpers be not conduct adequate examinations. methane tests. The commenter certified. Rather the final rule provides According to the commenter, certified suggested that the full preshift record an option for pumpers to perform persons conducting examinations under should be produced just as if the examinations for themselves if they are paragraph (a)(2) cannot be expected to examination were done according to certified. Otherwise, areas where perform at the same level as preshift paragraph (a)(1). In the case of the pumpers are scheduled to travel must be examiners conducting examinations pumper-examined area, the records preshift examined by a certified person. under (a)(1). MSHA expects that all required under paragraph (a)(2) will The final rule maintains the existing certified persons who are required to assure that mine management is made level of safety. A complete examination conduct examinations, including aware of any condition which results in by a certified person is still required and certified pumpers, will conduct the a hazardous condition and will facilitate the examination will be conducted examinations in accordance with the corrective actions being taken. It is closer to the time that work is standards. important to note that the pumper is performed in the area. As with other Another commenter suggested that conducting an examination in a limited examination requirements, no one may persons performing other jobs, such as area only for himself or herself. This is accompany the pumper during the rock dusters, should be permitted to in contrast to the various areas examination. It is important to note that perform examinations for themselves. addressed in paragraph (a)(1), where the the examination performed by the Pumpers, unlike most other miners examination is in anticipation of one or pumper under paragraph (a)(2) is not except mine examiners, travel in remote many other miners entering these areas acceptable if other persons have been areas of the mine and normally work usually on a regular basis, all of whom scheduled to enter the area. The pumper alone. Persons performing work such as are relying on the examiner’s findings. may only perform an examination in rock dusting, however, normally work In these circumstances, it is important lieu of a preshift for himself or herself. in newer areas of the mine where that a record is made which can be Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9793 utilized to spot ongoing problems and MSHA is persuaded that to require best information available at the time trends. examiners to look for violations that the preshift begins. If changes must be Paragraph (b) of the rule specifies the might become a hazard could distract made, § 75.361 specifies that areas not nature of the preshift examinations and examiners from their primary duties. preshift examined be covered by a the locations where a preshift The final rule, therefore, does not adopt supplemental examination performed examination is required. Proposed this aspect of the proposal. by certified persons before miners enter paragraph (b) would have required that Paragraph (b)(1) of the final rule the area. the person conducting the preshift adopts the proposal and clarifies that One commenter objected that was examination would examine for preshift examinations are to include confusing and should be modified. noncompliance with mandatory safety travelways in addition to roadways and Other commenters foresaw possible or health standards that could result in track haulageways. During abuses of the flexibility offered by the a hazardous condition. After informational meetings, commenters rule with some operators performing considering all submitted comments, indicated that the terms ‘‘roadways’’ supplemental rather than preshift the final rule does not contain this and ‘‘track haulageways’’ are associated examinations, claiming that assignments requirement. with areas where mobile powered were made after the preshift A number of commenters equipment is operated. By including the examination begins. After considering recommended the deletion of the term ‘‘travelways,’’ the rule clarifies that the comments, MSHA has retained the requirement to identify and record areas where persons are scheduled to proposed flexibility to preshift examine noncompliance with mandatory safety travel on foot are to be included, since areas where miners are scheduled to and health standards that could result in hazards may also develop in these areas. work or travel. To require more than a hazardous condition. Various One commenter suggested that the this would be impractical. commenters stated that the proposed proposal would greatly increase the area Section 75.360(b)(3) of the final rule requirement: would distract the that must be preshift examined, even requires preshift examinations of examiner from the most important though the requirement is limited to working sections and areas where aspects of the preshift examination; only those travelways where miners are mechanized mining equipment is being would require predictions; would be an scheduled to work or travel. This installed or removed if anyone is unrealistic expectation; and/or is commenter suggested that in large scheduled to work on the section or in designed only to facilitate enforcement mines many more areas than would the area during the oncoming shift. A actions. Commenters also suggested that actually be used by miners would have discussion of the reproposal of the proposal would result in a shift in to be preshift examined. The premise of provisions concerning the installation the focus of preshift examination from the preshift examination is that all areas and removal of mechanized mining true hazards to noncompliance. where miners will work or travel be equipment is presented in the General Other commenters objected that the examined for hazards. The final rule Discussion section of this preamble. As proposed requirement to examine for change concerning ‘‘travelways’’ is with the existing rule, the examination noncompliance with mandatory safety intended only to clarify that, when includes working places, approaches to or health standards that could result in miners are scheduled to use these areas, worked-out areas, and ventilation a hazardous condition is so vague that they must be preshift examined first. controls on these sections or in these it could detract from miner safety. One The final rule, therefore, does not areas. The final rule, like the proposal, commenter suggested that the examiners expand the existing scope to the preshift adds a new requirement that the would spend their time performing examination requirements. examination also include a test of the permissibility checks, torquing roof The language of the existing roof, face and rib conditions on these bolts, measuring roof bolt spacing, and paragraph (b)(1) referring to, ‘‘* ** sections or in these areas. similar tasks which represent a other areas where persons are scheduled Proposed changes to paragraph (b)(3) significant departure from the to work or travel during the oncoming not adopted in the final rule would have examiners traditional duties. shift’’ is transferred to a new paragraph also required preshift examination of Another commenter expressed the (b)(10) with conforming changes, as sections not scheduled to operate but opinion that paragraph (b) should proposed. MSHA received no comments capable of producing coal by simply require that all violations of mandatory on moving this provision to paragraph energizing the equipment on the safety or health standards be recorded (b)(10). Commenters did respond to the section. Also, proposed changes to and it should not be limited to those phrase in proposed paragraph (b)(1) paragraphs (c), (c)(1), and (c)(3) that could result in hazardous requiring preshift examinations of specifying where air volume conditions. Preshift examinations assess roadways, travelways and track measurements were to be taken on these the overall safety conditions in the haulageways where persons are ‘‘* ** sections have also not been adopted in mine; assure that critical areas are scheduled, prior to the beginning of the the final rule. properly ventilated; assure that the mine preshift examination to work or travel The new requirement to test the roof, is safe to be entered by miners on the during the oncoming shift.’’ The face and rib conditions is added because oncoming shift; identify hazards, purpose of this proposal, which is of the importance of this test to the whether violations or not, for the adopted in the final rule with only safety of miners. In newly mined areas, protection of miners; and through this clarifying changes, is to permit work checking roof, face and rib stability is identification facilitate correction of and mining personnel to be rescheduled most important to preventing injuries hazardous conditions. after the start of a shift. Preshift and death. Comments were received in The preshift examination examinations, by their nature, must be support of the revision, citing accidents requirements in the final rule are completed before the start of the shift. which might have been prevented had intended to focus the attention of the Changes in conditions, however, such as such tests been adequately performed examiner in critical areas. This a breakdown of equipment, can alter during preshift examinations. One approach is consistent with the planned work schedules. To commenter, when suggesting new fundamental purpose of preshift accommodate these circumstances, the wording for paragraph (b)(3), indicated examinations which is to discover final rule requires mine operators to that the requirement to test the roof, face conditions that pose a hazard to miners. design preshift examinations around the and rib conditions should be deleted but 9794 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations did not offer any rationale for the approaches is used to ventilate working of the longwall panel and in the bleeder suggested deletion. Another commenter sections where anyone is scheduled to entries caused a fragile balance of air suggested that the preshift examination work during the oncoming shift. The flows to exist in the ventilation system should only require a visual examination of the approaches to the that permitted methane to migrate from examination of the roof, rather than a worked-out areas is to be made in the the gob and to accumulate near the physical examination. Physical intake air course immediately inby and longwall headgate. examinations of the roof, such as outby each entry used to carry air into One commenter agreed with the ‘‘sounding,’’ have been a historically the worked-out area. The examination of proposal and discussed the need to accepted method for examiners to test the entries used to carry air into the assure that miners are not exposed to roof competency. Whenever an worked-out areas is to be at a point the hazards associated with ventilating examiner has a question as to whether immediately inby the intersection of working sections with return air. a section of roof is competent, such a each entry with the intake air course. Essentially, the final rule requires that test should be performed. The standard is intended to assure that at each applicable approach, three Comments were mixed on MSHA’s miners are not exposed to the hazards examinations must be made; proposed revision to include idle associated with ventilating working immediately inby and outby the working sections as part of the preshift sections with contaminated air which approach in the intake entry and in the examination. The proposal is not has passed through a worked-out area. approach itself immediately inby the retained in the final rule. Some The requirement is consistent with the intersection with the intake entry. commenters objected to the proposal as § 75.301 definition of ‘‘return air’’ and Situations exist where multiple unnecessary, burdensome, or with § 75.332 which provides that openings along an intake lead into a impractical. Commenters believed that working sections and other specified worked-out area. Under some the existing § 75.361 requirement for areas must be ventilated with intake air. conditions intake air enters the supplemental examinations prior to Commenters correctly noted that a upstream openings, passes through the anyone entering into such an area was clarification was needed in the first worked-out area, and then re-enters the sufficient. Commenters also stated that sentence of proposed paragraph (b)(4) to intake. The examination required by a preshift examination in these areas indicate that the examination at the paragraph (b)(4) is designed to assure could introduce a false sense of security specified points is only required if the that such a condition is detected. Also, and that the effect would be to divert intake air passing the approaches is the examination detects any change in preshift examiners from more important used to ventilate working sections ventilation entering the worked-out area duties. One commenter stated that the where anyone is scheduled to work which may warrant follow-up or proposed requirement would be during the oncoming shift. Commenters corrective actions to assure that the inconsistent with and contradictory to suggested that an examination should worked-out area is ventilated. the basic concept of preshift not be required if the intake air is not Paragraph (b)(6) of the final rule examinations. Another commenter used to ventilate working sections or if adopts the proposal modifying the objected to MSHA’s statement in the no one is scheduled to work on the existing rule. No comments were preamble to the proposal that there is a section. This was the result intended by received on this aspect of the proposal. reasonable likelihood that miners will at the proposal and the final rule has been The final rule in paragraph (b)(6)(i) some point during a working shift enter revised accordingly. requires preshift examinations to sections that are set up to mine coal. One commenter also suggested that include entries and rooms developed In support of the proposed the requirement in paragraph (b)(4) is after November 15, 1992 (the effective requirement to preshift examine idle unnecessary because the safeguards in date of the existing rule), and developed sections, one commenter cited the approved mine ventilation plan more than 2 crosscuts off an intake air explosions at the Red Ash Mine in 1973, should prevent an air reversal in a course without permanent ventilation the Scotia Mine in 1976, the P&P Mine worked-out area in which this air would controls where intake air passes through in 1977, the Ferrell #17 in 1980, the enter the intake air course. The or by these entries or rooms to reach a Greenwich #1 Mine in 1984, and the commenter offered the example of a working section where anyone is 1994 explosion at the Day Branch No. 9 worked-out area connected directly to a scheduled to work during the oncoming Mine in Kentucky. As the commenter bleeder system. MSHA agrees that when shift. Similarly, under (b)(6)(ii) the pointed out, in each of these accidents proper safeguards are in place and examination must include entries and miners were sent into an area that had operating as intended, air reversals are rooms developed after November 15, not been preshift examined. However, unlikely. However, roof falls and other 1992, and driven more than 20 feet off none of these accidents were the result obstructions in the worked-out area or an intake air course without a crosscut of miners entering areas that would in the bleeder can cause air reversals, and without permanent ventilation have been covered by the proposal. In permitting return air to enter the intake controls where intake air passes through each instance, miners entered an area and be transported to the working or by these entries or rooms to reach a where mining had ceased, but could not section. Without a suitable examination, working section where anyone is be resumed by simply energizing this condition would go undetected and scheduled to work during the oncoming equipment. Another common thread in could lead to disaster. While not exactly shift. each of these explosions was the failure the same, the explosion at the Pyro Existing paragraph (b)(6) requires that of the operator to conduct the required Mine in 1989, which resulted in the a preshift examination be made in all supplemental examination prior to deaths of 10 miners, was the result of a entries and rooms driven more than 20 miners entering the area on an somewhat similar set of circumstances. feet off an intake air course without a unscheduled basis. A water blockage in the bleeder entry crosscut or more than 2 crosscuts off an Paragraph (b)(4) of the final rule that combined with changes to certain intake air course without permanent requires preshift examinations to ventilation controls led to methane ventilation controls where intake air include approaches to worked-out areas migrating from the worked-out area onto passes through or by these entries or along intake air courses and at the the longwall face. MSHA’s report of this rooms to a working section where entries used to carry air into worked-out accident concludes, in part, that anyone is scheduled to work during the areas if the intake air passing the changes that occurred during the mining oncoming shift. MSHA proposed Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9795 modifications to existing paragraph portions of the opening. As mobile above attributed to methane (b)(6) based on concerns raised equipment passes under these areas or accumulations in high spots, the Itmann following publication of the existing a conveyor belt is put into operation, the No. 3 Mine explosion occurred when a rule on May 15, 1992. Commenters at methane is pulled down and mixed trolley powered vehicle ignited methane that time indicated that extensive with the air in the entry and may be in a high spot, resulting in the death of rehabilitation would be required at a ignited. The final rule addresses the 5 miners and severe burns to 2 other number of mines to implement the hazards of undetected accumulations of miners. The phrase ‘‘high spots where standard in the rooms and entries methane in high spots by requiring methane is likely to accumulate’’ should described in the rule, causing preshift examinations in such areas in be understood in the coal mining diminished safety for miners performing intake air courses if equipment will be industry. Experienced miners, and in the rehabilitation work. Commenters operated in the area during the shift. particular preshift examiners and noted that some areas had been Several commenters requested that certified persons, can readily recognize timbered heavily and cribbed because of MSHA clarify the term ‘‘high spots.’’ a high spot where methane is likely to adverse roof conditions and that One commenter stated that many hours accumulate. Also, MSHA for many years rehabilitation would unnecessarily would be necessary to examine every has considered preshift examinations to expose miners to roof falls and rib rolls indentation in the roof of a large mine be inadequate where examinations did while removing or repositioning roof and stated the belief that the turbulence not include methane tests in these areas. support. In addition, roof conditions in created by passing equipment would An examination of ‘‘every indentation,’’ some areas would remain hazardous render harmless any of the small as foreseen by one commenter is not even after rehabilitation. The amounts of methane that might possibly expected nor intended by paragraph commenters also noted that many such accumulate. Another commenter (b)(8), which specifies that preshift areas had been in existence for many believed the requirement was examinations be used to identify years without incident and that any unnecessary because there has never methane hazards by testing in the methane liberation had long since been a problem with methane appropriate locations. The final rule stopped due to the passage of time. accumulating in intakes in quantities does not adopt the suggestion that They noted that some areas cannot be sufficient to cause an explosion. One methane examinations be based on mine effectively sealed and that the risks commenter suggested that the liberation history since significant associated with rehabilitation and requirement should only be applicable methane liberation may begin or can subsequent physical examinations to mines with a demonstrated history of greatly increase at any time. Also, the would greatly outweigh the safety methane accumulations, noting that potential for a dangerous accumulation benefit to be gained. MSHA recognizes although mines are considered likely to of methane in a high spot is influenced the legitimate concerns raised by the liberate methane, it is not likely that all by mine ventilation, particularly the air commenters and the final rule requires mines will accumulate methane in high velocity in the entry. preshift examination of entries and spots. One commenter suggested that the Another commenter suggested that rooms developed after November 15, rule require tests only in ‘‘unventilated preshift examinations should be 1992 and driven more than 20 feet off high spots’’ along intake air courses. required in all high spots in intakes, an intake air course without a crosscut The final rule does not adopt this returns, belt entries, and track haulage or more than 2 crosscuts off an intake approach. The purpose of the preshift entries. The commenter also objected to examination is to detect hazards, in this air course without permanent limiting the examination in intakes only case accumulations of methane. ventilation controls where intake air to areas where equipment may be Nominal ventilation in a high roof passes through or by these entries or operated during the shift. The cavity may not be sufficient to sweep rooms to a working section where commenter observed that methane can away methane and an accumulation anyone is scheduled to work during the accumulate quickly in high spots and could exist. The final rule directs an oncoming shift. MSHA believes, that it is critical to detect the methane examiner’s attention to such situations. however, that the conditions addressed before it creates a danger. The Proposed paragraph (b)(9) is modified by paragraph (b)(6) are the result of commenter notes several accidents in the final rule. Paragraph (b)(9) of the improper mining practices in the past. involving methane accumulations in final rule requires preshift examinations These mining systems should be revised high spots, including: Meigs No. 31 at underground electrical installations in the future to avoid poor conditions, Mine in 1993 where methane in a roof referred to in § 75.340(a), except those or the areas affected should be fully and cavity was ignited by a torch; VP–5 water pumps listed in § 75.340(b)(2) reliably ventilated and be examined. Mine in 1992 when methane in a cavity through (b)(6), and areas where Also, the final rule applies only to was ignited by a torch; Ferrell No. 17 compressors subject to § 75.344 are entries and rooms developed after the Mine in 1980 where, according to the installed if the electrical installation or effective date of the existing rule. As commenter, methane may have compressor is or will be energized such, the mining industry was on notice accumulated in a cavity in the belt entry during the shift. The proposal would of the shortcomings of mining practices roof and may have been ignited by a have exempted all water pumps from that left entries and rooms of the type trolley powered vehicle; and in the VP– the requirements of paragraph (b)(9). addressed by the standard. 6 in 1982 where methane in a high spot One commenter objected to the Paragraph (b)(8) retains the proposal was ignited by a trolley powered vehicle exemption for pumps and requiring preshift examinations to traveling through the area. The recommended that all pumps be include high spots along intake air commenter stated that accumulations of examined pointing out that some pumps courses where methane is likely to methane in high spots can be ignited by are large, high-horsepower units. The accumulate, if equipment may be any number of sources. commenter noted a 1994 case in operated in the area during the shift. As A meaningful preshift examination Virginia where a 200 horsepower pump noted in the proposal, it has long been requires that conditions which can lead exploded. Pumps of this type may be in recognized that methane can to an explosion or ignition be detected locations or in applications that would accumulate in high areas with no and corrected before miners begin their not be examined by pumpers under indications being detected in the lower work. In addition to the accidents cited paragraph (a)(2). The final rule responds 9796 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations to this issue by requiring that all pumps begun. Often, once the examination has require this second level countersigning. should not be exempted from the started it is not possible to contact the Also, the final rule allows an official standard. Paragraph (b)(9) requires examiners to direct them to newly equivalent to a mine foreman to sign the preshift examinations of all pumps, identified areas where miners will work. records. Finally, the final rule allows for except those specified in § 75.340(b)(2) In these cases, a supplemental secure storage of records in a way that through (b)(6). Pumps specified in examination is required before persons is not susceptible to alteration and the § 75.340(b)(2) through (b)(6) and other work or travel in these areas. As records can be kept in a book or in a pumps that operate automatically or discussed in the preamble to the computer system. that otherwise may be energized are proposal, paragraph (b)(1) requires Commenters suggested that the final generally in the more remote areas of preshift examinations of any rule only require the examiner to record the mine and are to be examined weekly underground area where persons are uncorrected hazardous conditions and in accordance with § 75.364. scheduled to work or travel during the not those which were corrected by the Pumps which will be examined by oncoming shift. Under the existing rule, end of the shift. Commenters certified pumpers in accordance with an operator did not have the flexibility characterized the reporting of corrected paragraph (a)(2) are not covered by the to modify work assignments after the hazardous conditions as unnecessary final rule because of the limited hazards preshift examination had begun, unless and unjustified by the accident history. they pose and because certified it was possible to contact and redirect MSHA did not adopt the proposal to pumpers would themselves conduct the examiners to perform a preshift record corrected defects found during examinations of this equipment in examination before the beginning of the the fan examination required by accordance with paragraph (a)(2). shift. Commenters in general supported § 75.312. MSHA believes, however, that Examinations by pumpers at these the proposal. One commenter, however, a record of all hazards found during the locations will assure that methane has while supporting the change expressed preshift examination, including those not accumulated and that the equipment concern that the provision could be corrected, is necessary. The record is not in a condition to create a fire or abused. MSHA does not anticipate serves as a history of the types of ignition source. abuse of the rule and believes it to be A review of the accident history conditions that are being experienced in a reasonable approach to assuring that the mine. When the records are properly reveals a number of fires in equipment areas where persons work or travel are completed and reviewed, mine that, under the final rule, would be examined. operators can use them to determine if subject to preshift examinations. For As discussed above, the final rule example, the compressor that MSHA does not adopt the proposed revisions to the same hazardous conditions are identified as the probable cause of the paragraphs (c), (c)(1), and (c)(3) and occurring repeatedly and if the fire in the Wilberg Mine, which killed instead retains the language of the corrective action being taken is 28 miners, would have required a existing standard. While commenters to effective. Additionally, this record can preshift examination under (b)(9) of the proposed paragraphs (c), (c)(1), and permit mine management, the final rule. Additionally, MSHA has (c)(3) objected to expanding air volume representative of miners, and the identified several fires associated with measurements made during preshift representative of the Secretary to better rectifiers and transformer installations examinations to sections where coal focus their attention during in the mining industry. One of these could be mined by simply energizing examinations and inspections. The transformer fires was discovered during the equipment, no comments were safety value of a complete record is a preshift examination. received objecting to retaining the illustrated by the 1989 explosion at Pyro One commenter supported proposed requirement for areas where equipment Mining Company’s William Station paragraph (b)(9) and noted a number of is being installed or removed. An in- Mine in which 10 miners were killed. ignitions involving trolleys. The depth discussion of the reproposal of MSHA’s accident investigation report commenter also noted that history provisions concerning the installation concludes that methane concentrations demonstrates that other electrical and removal of mechanized mining of up to 6.5 percent were detected in the installations present ignition or fire equipment is presented in the General explosion area prior to the explosion but hazards which should be examined Discussion section of this preamble. reports by the mine foreman for the shift before each shift. Paragraph (f) of the final rule sets out failed to record the presence of these One commenter incorrectly the requirements for recording and dangerous accumulations of methane or understood proposed paragraph (b)(9) to countersigning both the results of the show the action taken to correct the not require preshift examinations of preshift examination and actions taken condition. The investigation further areas where compressors subject to to correct hazardous conditions found found that the failure to record these § 75.344 are installed if the compressor during the preshift examination. The methane accumulations in the is or will be energized during the shift. final rule adopts the following proposed appropriate record books prevented The standard does require preshift revisions to the existing rule: a record of management officials and other examinations of such equipment, which the results of the preshift examination is interested persons from learning of the includes all compressors except those required to be made; the results of hazardous condition and initiating which are components of equipment methane tests are required to be made corrective action. In light of the record, such as locomotives and rock dusting in terms of the percentage of methane the final rule adopts the proposal and machines and are compressors of less found; and a certified person is required requires the examiner to record the than five horsepower. to record the actions taken to correct results, whether corrected or not, of the Paragraph (b)(10) adopts the proposal hazardous conditions found during the preshift examination and the action that preshift examinations include other preshift examination. taken to correct hazardous conditions areas where work or travel during the Additionally, paragraph (f) of the found during the preshift examination. oncoming shift is scheduled prior to the proposal would have required This would include hazardous beginning of the preshift examination. countersigning by both the mine conditions and their locations and the This provision recognizes that work foreman and the superintendent or results of methane and air requirements and situations may change equivalent individual to whom the mine measurements required to be made after the preshift examination has foreman reports. The final rule does not elsewhere in § 75.360. Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9797

As with other records required by this mine official to whom the mine foreman an on-shift examination of each section rule, the records of preshift is directly accountable, within 2 where anyone is assigned to work examinations may be kept either in scheduled production days after the during the shift and any area where secure books that are not susceptible to countersigning by the mine foreman. mechanized mining equipment is being alteration or electronically in a The final rule does not retain this installed or removed during the shift. computer system so as to be secure and proposed requirement. A detailed The existing rule required that an on- not susceptible to alteration. A detailed discussion of the subject of second level shift examination be performed only on discussion of record books and the use countersigning can be found in the sections where coal is produced and of computers to maintain records can be General Discussion section of this areas where mechanized mining found in the General Discussion of this preamble. equipment is being installed or preamble. Paragraph (f) of the final rule also removed. Some commenters agreed that A variety of comments were received contains revisions to the existing rule to many of the same hazards exist on a regarding the countersigning of preshift allow for electronic storage of records. section whether coal is being produced records by the mine foreman, and the Paragraph (g) requires that the records or not. Commenters gave several time permitted for countersigning. The required by § 75.360 be maintained at a examples of activities that take place on final rule adopts the proposal that the surface location at the mine for one year non-coal producing sections including mine foreman or equivalent mine and be made available for inspection by equipment repair and maintenance, official must countersign the record of authorized representatives of the cutting and welding, rockdusting, clean- the preshift examination by the end of Secretary and the representatives of up, and roof bolting. As indicated by the mine foreman’s next regularly miners. A discussion of comments these commenters, all of these activities scheduled working shift. The mine concerning the use of computers to present the potential for a serious foreman is in a position of responsibility maintain records can be found in the accident. One commenter arguing for the day-to-day operation of the mine. General Discussion of this preamble. against the proposed change stated that It is essential for the health and safety Section 75.362 On-Shift Examination the preshift and supplemental of the miners that the mine foreman be examinations already address the safety fully aware of the information contained Like the preshift examination, the on- concerns to which the proposal was in the preshift examination reports so as shift examination of working sections is directed. While MSHA considers the to be able to allocate resources to a long accepted safety practice in coal preshift and supplemental examinations address safety problems. Allowing until mining. As coal is extracted, conditions to be of great importance in providing the end of the mine foreman’s next in the mine continually change and a safe work environment, these regularly scheduled working shift to hazardous conditions can develop. examinations are performed prior to countersign the reports provides Because the mining environment workers on a shift entering the mine or, sufficient flexibility to make compliance changes constantly during coal in the case of the supplemental practical while assuring that the mine production, this examination identifies examination, in an area of the mine that foreman is aware of the results of the emerging hazards or verifies that has not been preshift examined. The on- examination in a reasonably timely hazards have not developed since the shift examination is intended to address manner. preshift examination. Generally, the on- hazards that develop during the shift. Some commenters suggested that the shift examination includes tests for The concept of the on-shift examination time for countersigning is unnecessarily methane and oxygen deficiency, an is not new. On-shift examinations of long, and that the final rule should examination for hazardous conditions, coal producing sections have been restore a previous requirement that and air measurements at specified required since the enactment of the countersigning be completed locations. Federal Coal Mine Health and Safety ‘‘promptly.’’ The term ‘‘promptly’’ The final rule adopts proposed Act of 1969. involves ambiguity that is eliminated by § 75.362 with the exception that Another commenter arguing against specifying the time for countersigning revisions have been made to the expanding the on-shift examination the preshift examination record. The proposed provisions dealing with an requirement to non-coal producing rulemaking record does not show that examination for compliance with the sections stated that requiring on-shift the time set by the final rule would mine ventilation plan requirements for examinations of areas other than expose miners to safety or health risks. respirable dust control. working sections would detract from Commenters suggested that the term The final rule redesignates existing other required examinations. On-shift ‘‘mine foreman’’ be replaced by a (d)(1)(i) and (ii) as (d)(1)(ii) and (iii), examinations on coal producing ‘‘certified person responsible for revises paragraphs (a)(1), (c)(1), sections are normally conducted by ventilation of the mine or his designee.’’ (d)(1)(iii) and (d)(2), removes paragraph section foremen who spend the vast Another commenter suggested that the (a)(2), and adds new paragraphs (a)(2) majority of the shift on the section they record could be countersigned by the and (d)(1)(i). Additionally, the are supervising. These individuals will mine foreman or any other mine official requirements of existing paragraphs (g) not normally conduct the on-shift responsible for the day-to-day operation and (h), recordkeeping and retention, examinations in non-coal producing of the mine. Commenters stated that are transferred to § 75.363, Hazardous sections. These examinations will be some operations no longer use the terms conditions, posting, correcting, and conducted by certified persons assigned ‘‘mine foreman,’’ ‘‘mine manager,’’ or recording. New paragraphs (g)(1) and to work in these areas or other certified ‘‘superintendent’’. To provide for (g)(2) are also added by the final rule. persons assigned to conduct these alternative management titles, the final The word ‘‘on-shift’’ has been added examinations. MSHA does not, rule incorporates the phrase ‘‘or to the first sentence of paragraph (a)(1) therefore, foresee reduced attention to equivalent mine official.’’ for clarity and consistency with other examinations in working sections. Numerous comments were received paragraphs of § 75.362. MSHA did not Another commenter suggested that regarding the proposal for second level receive any comments on this proposed the requirements for on-shift countersigning of the preshift revision. Paragraph (a)(1) is also revised examinations be expanded further than examination record by the mine as proposed to require a certified person proposed. The commenter stated that superintendent, mine manager, or other designated by the operator to conduct many of the same types of activities that 9798 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations occur on non-production shifts on the additional on-shift examination the need for further attention. In 1990, sections also occur in outby areas of conducted on non-coal producing approximately 2000 deaths were mines. In support of this sections where miners are working. The associated with Coal Worker’s recommendation the commenter additional documentation required does Pneumoconiosis and the total number of pointed to 4 explosions which occurred not override the need for the standard. deaths between 1968 and 1990 were in outby areas of the mines. Those Another commenter suggested that the over 55,000. As of 1993, total annual accidents were the explosions at the term ‘‘more often if necessary for safety’’ Black Lung Program costs were over Greenwich Collieries No. 1 Mine in be changed to ‘‘more often if necessary $1.3 billion and the cumulative total Pennsylvania in February 1984 where 3 for safety as determined by the operator cost had exceeded $30 billion. miners were killed; the explosion at the depending on the mining conditions at Agency experience shows that needed Day Branch Mine in Kentucky in 1994 the time.’’ This commenter stated that attention has not always been given to where 2 miners lost their lives and; an conducting additional checks for safety the proper functioning of respirable dust ignition at the Loveridge No. 22 Mine in is a current practice and individuals controls. For example, a series of special West Virginia in 1992 that burned 1 working on the section, including the spot inspections, undertaken in 1991 to miner. In each accident, several section foreman, are the most familiar conduct checks of the dust control violations of safety standards with conditions in that area and should parameters during the course of working contributed to the explosion or ignition, make the determination whether shifts, revealed that 21 percent of the including inadequate or entirely omitted additional examinations are needed. 781 mining units sampled were not examinations required by standards in MSHA agrees with this commenter that complying with one or more of their effect at the time. Compliance with persons working on a section are in the dust control parameters. In its 1992 those safety standards would have best position to identify the need for report, an MSHA Task Group significantly reduced the likelihood of additional examinations. The suggested recommended coal mine operators be these tragic accidents occurring. language has not been adopted, required to make periodic on-shift Likewise, requirements of this final rule, however, because MSHA believes that examinations to verify that the mine such as the requirements for preshift this determination should not be limited ventilation plan parameters are in place and supplemental examinations in areas to persons working on the section. and functioning as intended. MSHA where persons are assigned to work or Another commenter supported the considers on-shift examinations of travel, would have served well to proposal and listed explosions that have respirable dust controls an important prevent these accidents. occurred which, in the opinion of the part of reasonable and prudent The final rule requirements for on- commenter, could have been prevented respirable dust control strategy. shift examinations focus on the areas had additional on-shift examinations Several methods of measuring water most likely to develop hazards during a been made. MSHA agrees that there are spray pressures would be acceptable. shift. Expanding the examination occasions when additional on-shift For example, water flow and pressure requirements further is not supported by examinations are necessary for safety can be monitored through the the record nor needed for miner safety. and, therefore, the final rule requires installation of an in-line water meter As proposed, the final rule also that on-shift examinations be conducted and a pressure transducer. Water revises paragraph (a)(1) to clarify that at least once each shift, or more often if pressure can also be measured by sufficient on-shift examinations must be needed for safety. permanently installing a pressure gauge conducted to assure safety. One The final rule retains the existing on a machine. Operators would commenter suggested that MSHA provision of paragraphs (a)(1), (c)(1) and determine the working relationship should include language to require more (c)(2) requiring an on-shift examination between the pressure gauge reading and than one examination if necessary for of areas where mechanized mining the actual operating pressure at the safety, as provided for in the previous equipment is being installed or sprays. Once the working relationship standard. The final rule adopts this removed. An in-depth discussion of the has been established, the gauge pressure approach and requires that at least once reproposal of provisions concerning the could be used to indicate the actual during each shift, or more often if installation and removal of mechanized spray pressure specified in the mine necessary for safety, a certified person mining equipment is presented in the ventilation plan for a given number and designated by the operator must General Discussion section of this type of operating sprays. conduct an on-shift examination of each preamble. Measurement of any required water section where anyone is assigned to Paragraph (a)(2) adds a new on-shift flow rate could be accomplished work during the shift and any area examination requirement to address through the installation of a flowmeter. where mechanized mining equipment is respirable dust control. Under the final A flowmeter provides a direct and being installed or removed during the rule, before coal production begins on a reliable measurement and is the shift. As with other changes to this section, an examination for compliance preferred method of determining water section, comments were received both with the dust control measures flow rate. Another acceptable method of supporting and opposing the change. established in the mine ventilation plan determining flow rate would be to One commenter in opposition to the must be completed. This examination establish the relationship between the standard argued that although the includes measurement of air quantities water pressure and the spray orifice operator is required to maintain a safe and velocities, water pressures and flow diameter, either through engineering work environment at all times, rates, a check for excessive leakage in data or through actual tests. Once documentation should not be required the water delivery system, and checks of established, the water pressure gauge for each inspection that is made of the the number of operating water sprays reading could be used to reliably working environment throughout the and their orientation as well as the indicate a flow rate for a specific shift. The commenter is correct in placement of section ventilation control number of sprays at a given orifice size. stating that the rule, in § 75.363, devices. One commenter, while generally requires additional documentation. Assuring full compliance with these supportive of the requirement for an on- However, the only additional requirements is important in shift examination of respirable dust documentation required will be for safeguarding the health of miners. controls, expressed concern over hazardous conditions found during the Human and financial costs demonstrate permitting the use of in-line flowmeters Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9799 and pressure transducers. The key dust control measures. This under the direction of a person commenter stated that leaks in the information can be used to give early designated by the operator and as set location of the flowmeter and pressure warnings of deteriorating dust controls, out in paragraph (g)(2), a certified transducer could go undetected, allowing corrective action to be taken person must certify that the examination resulting in a loss of pressure and flow before the dust control system fails to has been completed. MSHA would at the sprays. MSHA agrees that protect miners from excessive dust expect that the person directing this undetected leaks could result in levels. Although continuous monitoring examination would be present at the site improper operation of the system. To will eliminate the need for periodic of the examination while the address this point, the final rule has physical measurements to verify proper examination is conducted. been revised from the proposal to operation of some dust controls, visual Another commenter recommended require that a check for excessive observation of other controls will still be that the final rule not specify the leakage in the water delivery system be necessary. Among these are the number measurements that are to be made need made during the on-shift. This and location of operating water sprays, during the on-shift examination of dust commenter also suggested that use of their general condition and orientation, controls, and that the standard be incorrect spray nozzles could result in the section ventilation setup and control rewritten to require such an improper operation of the system that device placement, the check for examination be sufficient to assure would not be detected with in-line excessive leakage in the water delivery compliance with the respirable dust flowmeters and pressure transducers. system, and other control measures parameters specified in the mine MSHA would expect that as part of the where performance and operating ventilation plan. Because it is possible examination of the number of operating condition can only be assessed visually. to identify specifically some of the sprays a check would be made to assure One commenter suggested that MSHA parameters that must be measured in all that the proper sprays are being used. not permit the use of continuous instances the suggestion of the The final rule requires that the monitoring in lieu of physical checks commenter has not been adopted. By number of water sprays and their because technology to permit such identifying these parameters in the final orientation be included in the monitoring is not as yet available. The rule, misunderstandings over whether a examination. While spray orientation is final rule is intended to be sufficiently plan specification is for dust control or important in air-directing spray systems, flexible to permit the use of new methane control, for example, can be such as sprayfans and shearer-clearers, technology, such as continuous eliminated. MSHA does not intend that precise monitoring and sensing devices, and As proposed, paragraph (a)(2) would angles be determined during each also to encourage the introduction of have required that the respirable dust examination. Rather, the examiner such modern equipment. The final rule control portion of the examination be would be responsible for assessing does not require the physical made at or near the beginning of the whether the direction and orientation of measurement of the air velocity and shift and before production begins on a the sprays are generally correct and in quantity, water pressure and flow rates section. One commenter suggested that accordance with the requirements of the if continuous monitoring of the dust such a requirement would eliminate the mine ventilation plan. control parameters is used and indicates common practice of changing shifts on The final rule also requires that the that the dust controls are functioning the section without an interruption in working section ventilation and control properly. production. MSHA recognizes that device placement be examined for The on-shift examination of the dust changing crews without an interruption compliance with the mine’s ventilation controls is to be completed under the in production has become a common plan. Mine ventilation, particularly direction of a person who has been practice in some areas and does not where coal extraction occurs, is a basic designated by the operator. The intend that this practice be changed by respirable dust control measure. proposal would have required that a this rule. The final rule has revised the Any other respirable dust controls certified person conduct the proposal so that when a shift change is specified in the approved mine examination. One commenter objected accomplished without an interruption ventilation plan are also included in the to this approach, suggesting that the in production on a section, the required scope of the examination required under completion of this examination would examination may be made any time the final rule. An example of such require considerable time and that a within 1 hour of the shift change. In controls is the cleaning and more thorough examination could be those instances when there is an maintenance procedures for a wet bed accomplished by a person(s) familiar interruption in production during a shift scrubber installed on a continuous with the equipment and the dust control change, the final rule requires that the mining machine. The examination measures being utilized. This on-shift examination of respirable dust would include a check to assure that air commenter recommended that MSHA controls be made before production inlets and discharges are not plugged. It remove the word ‘‘certified’’, thus begins on a section. The proposed is not MSHA’s intent that the air permitting the examination to be wording ‘‘at or near the beginning of the quantity produced by a machine- conducted by persons other than shift’’ has not been included in the final mounted scrubber be measured as part certified persons. A second commenter rule in recognition of the fact that of the on-shift examination required by argued that the examination should be production on a section could be paragraph (a)(2), unless such a conducted by a single individual delayed and not begun until well after requirement is included as a part of the because other persons may be assigned the beginning of the shift. Because the mine ventilation plan. to a section who are not familiar with purpose of the standard is to assure that MSHA is aware that through advances the requirements of the mine ventilation dust exposures are controlled during in technology it may be feasible to plan for that section. mining, the on-shift examination must continuously monitor air quantity and The final rule deletes the word be conducted prior to the beginning of velocity, and spray water flow rate and ‘‘certified,’’ permitting on-shift production in order to be most effective. pressure. Continuous monitoring offers examinations of dust controls to be Other commenters objected to the potential to further improve miner conducted by one or more persons who examining respirable dust control protection by providing real-time data are not certified individuals. However, parameters for various reasons. Some on the performance and condition of the examination must still be conducted commenters stated that operators are 9800 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations required to comply with the made by some operators, together with purposes of § 75.362, a section in the requirements of the mine ventilation the flexibility of the final rule, the mine is considered to be the area inby plan relative to dust control and a burden of making these checks is the loading point; or, in the case of the separate requirement is not needed. The minimized. installation of mechanized mining measurements specified in the final rule The final rule requires in paragraph equipment, inby the proposed loading are a practical way to provide (a)(2) that deficiencies found during the point; or, in the case of the removal of reasonable assurance that miners are not on-shift examination of dust controls be mechanized mining equipment, inby the being exposed to unhealthy levels of corrected before production begins, or location of the last established loading respirable dust. The purpose of these when crews are changed without an point. The final rule requires in checks is not to restate the requirements interruption in production, before paragraphs (a)(1), (c)(1), and (c)(2) that for compliance with the mine’s production continues. The proposal the certified person conducting the on- ventilation plan. Instead, as discussed would have required that deficiencies in shift examination examine the section above, the final rule is intended to bring the controls be corrected immediately. in much the same way as it would be needed attention to the proper However, the final rule revises the examined during a coal producing shift, functioning of dust controls before proposal in response to one commenter including checking for hazardous production begins. who pointed out that the correction of conditions, testing for methane and Other commenters expressed the deficiencies is important prior to oxygen deficiency, determining if the air opinion that coal production should not production, in view of the purpose of is moving in its proper direction, and be delayed until after the completion of the rule. measuring the volume of air in the last the examination of dust controls. Another commenter suggested that open crosscut or in the intake of According to these commenters, this the examination of dust controls be longwalls or shortwalls, as appropriate. examination will take the certified conducted after production begins so as Some commenters objected to this person away from other examinations to be more representative of production provision stating that there is little that must be completed to assure safety. conditions. In contrast, another safety benefit to requiring on-shift As explained previously, the final rule commenter observed that if the required examinations on sections other than has been revised to permit the changing dust control parameters are not being working sections where coal is being of crews without an interruption in met before production is begun, it is produced. The final rule does not limit production. The completion of the on- unlikely that they will be met after on-shift examinations to ‘‘working shift examination of dust control production is started. This commenter sections’’ but includes other areas where parameters can be postponed for up to suggested multiple examinations, one persons are working. Hazards similar to 1 hour when crews are switched out at before production begins and one at those that develop on a coal producing the face. Additionally, the final rule has some later time during the shift. MSHA section can also develop during a shift been revised to permit the examination agrees that if dust control measures are on sections that are not producing, but of dust control parameters to be deficient before production begins it is where personnel are assigned to work. performed by a person(s) other than a unlikely that they will be corrected later Paragraph (d)(1)(i) requires that at the certified person and to simply require in the shift. Therefore the final rule start of each shift, before electrically the certified person to certify that the requires the on-shift examination of the operated equipment is energized, a examination was completed. These dust control measures prior to the qualified person test for methane at each revisions substantially reduce any delay beginning of production. The final rule, working place. One commenter in production that could have resulted however, does not include the suggested that the existing standard is under the rule as proposed. recommendation for an additional sufficient because quite often in today’s Another commenter objected to the examination of dust control measures. mining practices equipment is already requirements of paragraph (a)(2) stating Paragraphs (c)(1) and (c)(2) require energized at the start of the shift since that examination of dust controls is certified persons conducting on-shift one equipment operator takes over from unnecessary because all personnel are examinations to take air measurements the previous operator and examinations required to be trained in the at the same locations where air for methane have been performed every requirements of all approved mine plans measurements are required during the 20 minutes as required by including the mine ventilation plan, and preshift examination. This includes § 75.362(d)(1)(ii). MSHA does not agree many of the required mine ventilation areas where mechanized mining that the existing standard is sufficient plan parameters are checked during the equipment, including longwall or for a number of reasons. First, although pre-shift examination. The commenter shortwall mining equipment, is being the commenter is correct in stating that stated further that other parameters, installed or removed. Reduced volume switching operators while the such as number of water sprays and or velocity of air during the shift can equipment remains energized is a pressure, are checked by the equipment contribute to increased levels of relatively common practice it is not a operators during the pre-operational respirable dust, methane accumulations, universal practice. In mines where inspection. In the opinion of the or oxygen-deficient atmospheres. equipment is deenergized between commenter, the proposed examination Checking the mine’s ventilation system shifts, the final rule provides for a test of dust control parameters is redundant verifies that changes in the mine for methane in each working place prior and unnecessary. ventilation system due to the to the equipment being energized. On The requirements of paragraph (a)(2) production process have not occurred. sections in mines where equipment are not redundant with existing The final rule removes the word operators are switched while equipment standards. There is no requirement for ‘‘working’’ from paragraph (c)(1) to remains energized, MSHA would a pre-operational inspection of dust assure that the application of the consider a methane test performed controls. For the reasons discussed standard would extend to all sections, during the previous 20 minutes under above, MSHA considers examination of consistent with paragraph (a). Many of paragraph (d)(1)(iii) as sufficient to dust controls for proper functioning to the activities to which miners are comply with the methane test be an important practical measure for assigned are on sections not normally requirement of paragraph (d)(1)(i) for protecting miners’’ health. To the extent thought of as ‘‘working sections,’’ a term the working place where mining is that these checks are currently being associated with coal production. For taking place. However, paragraph Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9801

(d)(1)(i) also requires that methane tests are considerably higher than other areas faces. Methane monitors have proven be made in other working places on the in the working place. For example, reliable over the years and provide a section not only in the working place Luxner, in Bureau of Mines Report of second level of protection against where the equipment is being operated. Investigation 7223, ‘‘Face Ventilation in methane ignitions. Methane monitors The final rule requires in paragraph Underground Bituminous Coal Mines,’’ provide for methane detection at a fixed (d)(1)(iii) that methane tests be made published in 1969, reported methane location while the use of a methane more frequently than 20 minutes if concentration in excess of 5 percent as detector with a probe permits methane required in the approved mine far back as 15 feet using both blowing measurements to be made at various ventilation plan at specific locations, and exhaust ventilation systems with a locations in the face area. during the operation of equipment in curtain-to-face distance of 20 feet. The Historically, machine-mounted the working place. One commenter concentration outby this location as methane monitors have been used as a objected to this requirement expressing reported by Luxner was between zero backup for the other required tests. This the opinion that the standard does not and 1 percent. Later, Haney, et al., also concept was exactly what Congress identify situations in which more showed lesser concentrations of recognized in § 303(l) of the Coal Mine frequent methane tests would be methane further from the face using Health and Safety Act of 1969 (Coal warranted and, therefore, operators various types of assisted ventilation Act). Discussing this provision, the could be faced with a requirement to systems. conference managers noted ‘‘...the conduct additional methane tests which A speaker at one of the public methane monitor is an additional are unwarranted and would result in the hearings on the proposal suggested that backup device for detecting methane misallocation of safety resources. The tests should be made at the last row of and should not be construed as a final rule is intended to address bolts and if 0.2 percent of methane is substitute for the other tests and testing situations such as an abnormally high found at that location, a probe should be devices required in this title for methane liberation rate in a mine or an used to test at the face. The final rule detecting and controlling methane.’’ area of a mine that would warrant more does not adopt this recommendation H.R. Conf. Rep. No. 91–761, 91st Cong., frequent testing for methane. Like the because MSHA is unaware of any tests 1st Sess. 80 (1969). existing standard the final rule requires that relate the concentration of methane The final rule does not adopt the this test to be made by a qualified at the face with the concentration at the suggestion of commenters that methane person, not a certified person, thus in last row of bolts. Based on current monitors be accepted in lieu of the most cases the person who makes the knowledge, it is doubtful that such a methane tests required by paragraph test will be the machine operator. As a direct correlation could be made (d)(2). result, this test will not require that because of the number of variables Paragraph (g)(1) adopts the language other safety-related activities be stopped involved. of proposed paragraph (g) and requires to make a test for methane. A recurring comment concerning that the person making the on-shift Under the existing rule, methane tests taking methane tests at the face with a examination in belt haulage entries required by paragraph (d)(1) were to be probe was that such a requirement will certify by initials, date, and time that made at the last permanent roof support lead to an increase in the number of the examination was made at enough unless the mine ventilation plan back injuries among miners. However, locations to show that the entire area required that they be made closer to the other commenters supported the has been examined. As explained in the face using extendable probes. Paragraph requirement and stated that probes as preamble to the proposal, the existing (d)(2) of the final rule revises this long as 40 feet are currently being used rule does not require certification that standard and requires that the methane in some areas of the country. Miners examinations were conducted in belt tests specified in paragraphs (d)(1)(i) with experience in using these probes conveyor entries. Comments received through (d)(1)(iii) be made at the face testified at the rulemaking hearings that expressed the view that without from under permanent roof support, although the long probes can at times be certification, no mechanism exists to using extendable probes or other means. difficult to use, they are being used and verify that examinations were Like the existing standard, paragraph are providing measurements of methane conducted in belt conveyor entries. (d)(2) requires that for longwall and at the face in mines operating in coal Other commenters questioned what shortwall mining systems, the tests are seams as low as 37 inches. MSHA meant by ‘‘enough locations.’’ to be made at the cutting head. When The possibility of an increase in the MSHA agrees with the commenter that mining has been stopped for more than number of back injuries is of serious the certification requirement should be 20 minutes, methane tests must be made concern to MSHA. However, after added to the rule to provide a means to prior to the start up of the equipment. reviewing all of the written comments verify that the examination has taken During informational meetings and testimony taken during public place. With respect to the locations following the publishing of the existing hearings, particularly that of miners where the certification should be made, standard, it became apparent that a large having experience with the use of this certification process is a common segment of the mining community felt probes, MSHA is persuaded that this is practice in the industry and is required that methane tests should be made as a reasonable approach and will achieve by several state regulations. The close to the working face as practicable the desired safety results without undue locations where certification would be without exposing miners to unsafe risk of back injuries. expected to be kept are no different than conditions. MSHA agrees that proper Several commenters suggested that in those which were required for many testing for methane at the face is lieu of requiring methane tests at the years under the previous MSHA essential for safe mining operations. The face, MSHA should permit the use of regulation and which have been need for making methane tests at the the methane monitor to satisfy the commonly accepted in the industry. face has been demonstrated by requirement. In making this Paragraph (g)(2) is a new requirement researchers and engineers from the U.S. recommendation, one commenter relating to the certification of the Bureau of Mines and MSHA through suggested that the methane monitors examination of respirable dust control work performed over the last 25 years. should not be required to be installed on parameters. Under (g)(2), the person This work documents that in a working face equipment if they cannot also be making the on-shift examination to place the concentrations near the face used to test for methane in unsupported assure compliance with the respirable 9802 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations dust control parameters specified in the Section 75.363 is not directed only operator for the purpose of conducting mine ventilation plan must certify by toward hazardous conditions found examinations shall be posted with a initials, date, and time that the during examinations. Hazardous conspicuous danger sign and shall be examination was made. conditions occur and are found at times corrected immediately or remain posted. during the shift when examinations are MSHA would expect that when a Section 75.363 Hazardous Conditions; not being made. Under the final rule, hazardous condition is reported to these Posting, Correcting, and Recording these hazardous conditions would also certified persons, that the measures Section 75.363 is a new section require posting, correction, and necessary to evaluate the situation and, requiring the posting, correcting and recording when found by the mine if necessary, to comply with the recording of hazardous conditions. The foreman or equivalent mine official, provisions of this section would be posting of hazardous conditions against assistants to the mine foreman or taken. entry is a time tested method for equivalent mine official, or other One commenter suggested that the preventing accidents. Examiners, upon certified persons designated by the proposed requirement that all hazardous finding a hazardous condition, erect operator to conduct examinations. conditions be corrected ‘‘immediately’’ ‘‘danger boards’’ to alert persons One commenter questioned whether would diminish safety because miners traveling in the area of the presence of the proposed standard was intended to could be exposed to hazards the hazard. In this manner, miners are assign new duties to the mine foreman unnecessarily. The commenter offered prevented from inadvertently entering and assistant mine foremen. The final as an example an area of bad roof in a an area where a hazard exists. Section rule does not impose additional ‘‘remote, unused crosscut’’ and 75.363 requires that hazardous responsibilities on the mine foreman suggested that in this case posting of the conditions be posted and access to the and assistant mine foremen. However, area against entry would be sufficient. area be limited; that the hazardous these individuals are certified and MSHA recognizes that there are conditions be corrected immediately or routinely travel throughout the mine for instances, such as the example remain posted; and, that a record be purposes other than making presented by the commenter, where made and maintained of the hazardous examinations. The standard requires safety is best served by simply posting condition and the action taken to correct that hazardous conditions found by the the area against entry. This has long the condition. Records of the hazards mine foreman, assistant mine foreman, been the practice in the industry and the and the actions required to correct the or equivalent mine officials, be treated final rule does not prevent this from hazards provide valuable safety the same as hazardous conditions found continuing. In these cases, the corrective information about conditions in the by other certified persons who have action required to prevent injury is to mine and the effectiveness of corrective been designated to conduct preclude persons from entering the area. measures. examinations. That is, the hazardous The proposal would have required that conditions are to be appropriately the hazardous condition be corrected MSHA’s final rule modifies the posted, corrected, and recorded. The immediately and that the area remain proposal in several ways. The final rule term ‘‘equivalent mine officials’’ has posted until the hazardous condition is deletes the phrase ‘‘or reported to’’ that been added in response to commenters corrected. To reflect the appeared in the first sentence of who suggested that the term ‘‘mine recommendation of the commenter, the proposed § 75.363(a) and deletes the foreman’’ is no longer used at all mines. final rule requires that the hazardous requirement for countersigning by a Under paragraph (a) any hazardous condition be corrected immediately or second level official. It specifies that, condition found by the mine foreman or that the area remain posted until the except for preshift or preshift type equivalent mine official, assistants to hazardous condition is corrected. The examinations, hazardous conditions the mine foreman or equivalent mine Agency recognizes that in some shall be corrected immediately or official, or other certified persons instances posting the area against entry posted until the conditions are designated by the operator to conduct is the corrective action. corrected. The final rule allows for examinations is to be posted with a The requirement that the hazardous countersigning by an official equivalent conspicuous danger sign. The posting conditions be corrected immediately to the mine foreman and provides for requirements of this section apply to does not necessarily require correction storage of records in either a secure every hazardous condition regardless of by the certified examiner finding the book or in electronic media which is not when it is found. Under the proposal, condition. To do so could delay the susceptible to alteration. hazardous conditions reported to the completion of the examination. Rather, It is essential that all hazardous mine foreman, assistants to the mine the final rule requires that the conditions, regardless of when detected foreman or other certified persons hazardous condition be corrected or by whom, be adequately addressed. designated by the operator to conduct following the reporting of the condition Commenters suggested that the examinations would have required by the examiner to the appropriate mine proposed standard be deleted because, posting. Commenters suggested that official. Common sense and sound in their opinion, other standards requiring hazardous conditions judgement should enter into the provide adequate coverage. One ‘‘reported to’’ these individuals would decisions as to when hazardous commenter interpreted the proposed eliminate the judgement of the persons conditions are corrected. Posting of the standard as being directed at only those responsible for making decisions about area where the hazardous condition hazards found during the on-shift whether or not a hazardous condition exists in order to prevent entry is to be examination and supplemental exists. One commenter suggested that accomplished by the certified person examinations, because hazardous the requirement, as proposed, could finding the hazardous condition. conditions found during the preshift undermine the integrity of the certified One commenter questioned whether and weekly are excluded from the person. The final rule is revised to proposed paragraph (a) would require standard. This commenter require that hazardous conditions found the hazardous condition itself be posted. recommended rewriting the by the mine foreman or equivalent mine The posting of the area, as opposed to requirements for the on-shift and official, assistant mine foreman or the hazardous condition itself, would, supplemental examinations to reflect equivalent mine official, or other in most cases, be more effective and a the needed changes. certified persons designated by the safer practice. For instance, if a section Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9803 of bad roof is detected, it would be in conditions found during the preshift working shift to countersign the records the best interest of safety to mark the and weekly examinations because these assures that the mine foreman is aware area or perimeter of the area of bad roof examinations have separate record of hazardous conditions in sufficient instead of the roof itself. The ‘‘danger’’ keeping requirements. time to initiate corrective actions. sign would be placed at a location Commenters recommended rewording Some commenters suggested that the where anyone entering the area of the the standard to eliminate the provisions time for countersigning is unnecessarily hazardous condition would pass so that that no record is required on any shift long, and that the final rule should persons approaching the area would be on which no hazardous condition is require daily countersigning by the expected to see the ‘‘danger’’ sign. The found and that the corrective action mine foreman. The rulemaking record area would remain posted until the taken must also be recorded. These does not show, however, that the time hazardous conditions are corrected. The suggestions were offered to clarify the set by the final rule would expose posting of areas where hazardous standard. MSHA believes that deleting miners to safety or health risks. Also, conditions exist to alert persons is a these requirements would not clarify the hazardous conditions must be corrected long-standing accepted safety practice rule and the suggestions are not adopted immediately or the area must remain in the mining community. in the final rule. posted until the condition is corrected. Paragraph (a) requires that once an Paragraph (c) requires that a record be Numerous comments were received area is posted due to a hazardous made either by the certified person who regarding the requirement of the condition, only persons designated by conducted the examination or by a proposal for second level countersigning the operator to correct or evaluate the person designated by the operator. As of the preshift examination record by condition may enter the posted area. with other records required by this the mine superintendent, mine manager, Additionally, if the hazardous condition subpart, when the record is made by a or other mine official to whom the mine creates an imminent danger, everyone designated person other than the foreman is directly accountable within 2 must be withdrawn from the affected certified person making the scheduled production days after the area to a safe area until the condition is examination, the person making the countersigning by the mine foreman. corrected. Persons referred to in section record need not be certified. If the The final rule does not retain this 104(c) of the Act are permitted to enter record is made by a person designated proposed requirement. A detailed in the area. by the operator, the certified person discussion of the subject of second level One commenter suggested that the must verify the record by initials and countersigning can be found in the representative of the miners be date. MSHA did not receive any General Discussion section of this permitted to enter an area which has comments objecting to this part of the preamble. been posted with a ‘‘danger’’ in order to standard. Like the other recordkeeping As proposed, paragraph (d) of the evaluate the condition. The final rule requirements in the proposal, proposed final rule requires that the records follows the statutory provision in paragraph (c) would have required that required by § 75.363 be maintained at a § 104(c) of the Mine Act. This the record be made in a state-approved surface location at the mine for one year longstanding requirement provides that book or a bound book with sequential and be made available for inspection by only persons designated by the operator machine-numbered pages. Additionally, authorized representatives of the to correct or evaluate the hazardous the proposal would have required Secretary and the representative of condition may enter such posted areas. countersigning by both the mine miners. Comments on this requirement With respect to the representative of foreman and the superintendent or were generally favorable. A discussion miners, § 104(c)(3) provides that the equivalent individual to whom the mine of comments concerning the use of representative of the miners in such foreman reports. The final rule requires computers to maintain records can be mine who is, in the judgment of the that the records of hazardous conditions found in the General Discussion of this operator or an authorized representative must be kept in either secure books that preamble. of the Secretary, qualified to make mine are not susceptible to alteration, or Section 75.364 Weekly Examination examinations or who is accompanied by electronically in a computer system so such a person and whose presence in as to be secure and not susceptible to The weekly examination is directed at such area is necessary for the alteration. A detailed discussion of hazards that develop in the more remote investigation of the hazardous condition record books and the use of computers and less frequently visited areas of a may enter the area. to maintain records can be found in the mine. These areas include: worked-out Paragraph (b) requires that a record of General Discussion of this preamble. areas where pillars have not been hazardous conditions be made by the A variety of comments were received removed, bleeder entries used to end of the shift on which the condition regarding the countersigning of the ventilate worked-out areas where pillars was found. This record is required to be record by the mine foreman, and the have been removed and, some main maintained on the surface and must time permitted for countersigning. The intake and return air courses. Over the include the nature and location of the final rule adopts the proposal that the course of time, hazards such as methane hazardous condition and the corrective mine foreman or equivalent mine accumulations and obstructions to action taken. A record of all hazards official must countersign the record of ventilation can develop in these areas found, as well as the required corrective hazardous conditions by the end of the and can result in an explosion or loss of action, serves as a history of the types mine foreman’s next regularly ventilation if not discovered and of conditions that can be expected in the scheduled working shift. The mine corrected. Because of the confined mine. When the records are properly foreman is responsible for the day-to- nature of the underground mining completed and reviewed, mine day operation of the mine. It is essential environment, loss of life can result in management can use them to determine for the health and safety of the miners other areas of the mine outside the if the same hazardous conditions are that the mine foreman be fully aware of immediate location of the hazard. The recurring and if the corrective action the information contained in this record weekly examination assures that these being taken is effective. No record is so as to be able to allocate resources to hazards are located and corrected. required on any shift on which no correct safety problems as they develop. Generally, § 75.364 requires an hazardous conditions are found. Allowing until the end of the mine examination in unsealed worked-out Paragraph (b) excludes hazardous foreman’s next regularly scheduled areas that have not been pillared; travel 9804 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations in bleeder entries and the performance evaluation points are governed by (a)(1) should be physically examined to all of appropriate measurements in these for unpillared worked-out areas, and by points of deepest penetration. The entries and; a check for hazardous (a)(2)(iv) for pillared worked-out areas commenter suggested that the face of conditions in return and intake air ventilated by bleeder systems. Section each entry or room should be examined courses, in each longwall travelway, at 75.371(z) of the final rule refers to these at its point of deepest penetration. each seal along return and bleeder air requirements for both measurement MSHA agrees that travel to a single courses and each seal along intake air points and evaluation points. The point of deepest penetration within an courses not otherwise examined, in each measurement points and evaluation area may sometimes be inadequate to escapeway, and each working section points may be either in the body of the fully demonstrate effective ventilation that has not been preshift examined mine ventilation plan or may be shown of a worked-out area. The final rule during the previous 7 days. on the 75.372 map. In either case, the addresses this issue by requiring that The final rule modifies existing locations are subject to approval by measurement points be established in § 75.364 (a), (b), and (h). It adopts MSHA. the mine ventilation plan. several proposed changes to § 75.364 Under paragraph (a)(1), at least every Paragraphs (a)(2) (i) through (iv) of the and modifies or rejects other proposed 7 days a certified person must examine final rule retain the requirement that at changes. unsealed worked-out areas where no least every 7 days a certified person Paragraph (a) specifies weekly pillars have been recovered by traveling must evaluate the effectiveness of examination requirements in unsealed to the area of deepest penetration; bleeder systems used under § 75.334 (b) worked-out areas where no pillars have measuring methane and oxygen and (c). Like the proposal, the final rule been recovered as well as in bleeder concentrations and air quantities and also specifies tests and locations for an systems. The final rule requires that making tests to determine if the air is effective examination. One commenter unpillared worked-out areas and bleeder moving in its proper direction in the noted that mine examinations are systems be physically examined on a areas. The locations of measurement sometimes ineffective and supported the weekly basis and specifies the tests and points where tests and measurements proposed additional specificity in the measurements to be performed by the will be performed must be included in rule, requiring air measurements and examiner. The final rule identifies two the mine ventilation plan and must be tests at key locations or measurement separate locations within nonpillared adequate in number and location to points within worked-out areas. areas and bleeder systems where assure ventilation and air quality in the Established locations where examiners measurements may be required. First, area. Air quantity measurements must will conduct air measurement and tests measurement points must be included be made where the air enters and leaves will help assure effective examinations in the mine ventilation plan to identify the worked-out areas. Sufficient and provide quantitative results to the the locations within unpillared worked- methane and oxygen measurements operator. The final rule requires that the out areas and bleeder systems where must be made to assure the air quality mine ventilation plan include examiners will conduct air in the worked-out areas. An alternative measurement points within worked-out measurements and tests, the results of method of evaluating the ventilation of areas and paragraph (h) requires that the which are to be recorded. These the areas may be approved in the mine results be recorded. measurement points are not in lieu of ventilation plan. Paragraph (a)(2)(ii) requires that traveling the system, but rather are the Under paragraph (a)(1), in addition to measurements of methane and oxygen locations where the examiner will measuring oxygen and methane concentrations be made, air quantity be perform air quantity and quality tests concentrations and testing for proper air measured, and a test performed to and measurements to determine the direction, air quantities must also be determine if the air is moving in its effectiveness of ventilation. These determined. Air quantity measurements proper direction at a point immediately points are tracking and evaluation tools are required where air enters and leaves before the air enters a return split of air. to assure adequate ventilation and to the worked-out area. The final rule also A commenter supported the proposed identify developing trends in ventilation requires that a sufficient number of air measurements where air enters and or air quality which may require measurement points must be included leaves worked-out areas and correctly attention. in the mine ventilation plan to assure noted that such measurements would Second, evaluation points may be appropriate ventilation and air quality reveal some types of ventilation approved in the mine ventilation plan in the area. problems. In a special case, such as on a case-by-case basis as provided The changes to paragraph (a)(1) are in where it may not be possible to measure under (a)(1) and by (a)(2)(iv). These response to comments and MSHA intake air, paragraph (a)(2)(iv) permits evaluation points may be used in lieu of experience with weekly examinations. an alternate method of evaluation to be physical examinations. Evaluation Currently some examiners are simply used when approved in the mine’s points may only be approved in lieu of traveling to the point of deepest ventilation plan. travel if the evaluation points are fully penetration while conducting few if any Another potential hazard exists when adequate to demonstrate that the area is tests or air measurements within the multiple intake openings lead into such ventilated. These provisions are system. The full benefit of an examiner an area, if passing intake air enters discussed below. traveling to the point of deepest upstream openings of the worked-out The final rule clarifies that penetration is lost if the examiner does area and reenters the intake from measurement points for weekly not conduct air quantity and quality downstream openings. The final rule examinations must be specified in the measurements at key locations. also requires that air quantity mine ventilation plan for both The results of these measurements are measurements be made where air enters unpillared and pillared worked-out important in assessing the effectiveness and leaves worked-out areas. areas described in (a)(1) and (a)(2)(iii), of ventilation. In addition, trends in Measurements made where air enters respectively. These measurement points either air quantity or quality can reveal and exits the area will alert the are distinct from the evaluation points developing problems which can be examiner and operator to airflow which may be approved in lieu of a corrected in the earliest stages. changes or imbalances which indicate a physical examination under some One commenter suggested that the potentially dangerous ventilation circumstances. As mentioned above, entire perimeter of worked-out areas problem. The specification of Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9805 measurement points within worked-out area in its entirety. The thrust of the uncorrected hazardous conditions. areas will also assure that short circuits commenter’s argument was that an MSHA is sensitive to minimizing have not interrupted ventilation. inflexible standard requiring either full recordkeeping requirements and, for One commenter stated that the travel of a bleeder system or sealing of example, the final rule requires only standard should fully delineate all the entire area would result in superior uncorrected defects found during the aspects of the weekly examination by designs and improved maintenance. fan examination to be recorded. specifying that the examination include While MSHA agrees with the However, the weekly examination roof and ribs, ventilation controls, water commenter’s ultimate objective of record serves as a history of the types of accumulations, etc. Although MSHA ensuring effective ventilation of bleeder conditions that can be expected in the agrees that these and other conditions systems and worked-out areas, MSHA mine. When the records are properly fall within the purview of the weekly does not agree that elimination of any completed and reviewed, management examination, the final rule does not flexibility within the standard would can use them to determine if the same attempt to provide an exhaustive list of result in infallible designs. Since hazardous conditions are occurring and what is to be covered in a weekly approval of evaluation points is only if the corrective action being taken is examination. Examinations are granted in cases where adequate effective. Additionally, this record can performed by persons trained and ventilation can be determined through permit mine management, the certified as able to make the required evaluation, MSHA believes that representative of the Secretary, and the examinations. Such certified persons retaining flexibility to review individual representative of miners to better focus can be expected to give proper attention cases is an appropriate method and their attention during examinations and to basic safety considerations. results in proper evaluation of the inspections. The final rule adopts the Paragraph (a)(2)(iii) requires that at effectiveness of the bleeder system. proposal and requires the examiner to least one entry of each set of bleeder Paragraph (h) of the final rule governs record all hazardous conditions found entries used as part of a bleeder system recordkeeping requirements for weekly and the action taken to correct the under § 75.334 must be traveled in its examinations. The final rule hazardous condition. entirety. Under the final rule, incorporates several revisions based on A variety of comments were received measurements of methane and oxygen recommendations submitted by regarding the countersigning of the concentrations and air quantities are commenters. The final rule requires that records of weekly examinations by the required to be made during the at the completion of any shift during mine foreman, and the time permitted examination. Also, a test to determine if which a portion of a weekly for countersigning. The final rule adopts the air is moving in its proper direction examination is conducted, a record of the proposal that the mine foreman or must be made at locations or the results be made. This record must equivalent mine official must measurement points, specified in the include any hazardous conditions found countersign the record of the weekly mine’s ventilation plan. The during the examination and their examination by the end of the mine measurements and tests provide the locations, the corrective actions taken, foreman’s next regularly scheduled information necessary to determine the and the results and location of air and working shift. The mine foreman is in effectiveness of the bleeder system. methane measurements. The record a key position of responsibility relative One commenter believed that the must be made by the person making the to the day-to-day operation of the mine. proposal would require each parallel weekly examination or a person It is essential for the health and safety and common bleeder entry of a set to be designated by the operator. of the miners that the mine foreman be traveled. The final rule is intended to The final rule includes a revision fully aware of the information contained simplify the examination and would, requiring that the results of methane in the preshift examination reports so as under the circumstances described by tests must be recorded as the percentage to be able to allocate resources to correct the commenter, require only one entry of methane measured by the examiner. safety problems as they develop. of a set of common entries to be Previously, terms such as ‘‘ok,’’ ‘‘low,’’ Allowing until the end of the mine examined in a bleeder system. Also, or ‘‘trace’’ were entered in record books foreman’s next regularly scheduled similar to the requirements for traveling as test results. The final rule clarifies working shift to countersign the reports intake and return air courses, this that such qualitative terms are not assures that the mine foreman is aware requirement should not be interpreted acceptable when examination of the results on a regular and timely to require the examiner to stay in one requirements specify the measurement basis. entry. For example, if the examiner of air quantity or methane levels as such Numerous comments were received desires to ‘‘zig zag’’ between entries entries provide little useful information. regarding the requirement of the while traveling in a multi-entry bleeder The final rule requires that if the proposal for second level countersigning system, this would be acceptable under record is made by a person other than of the weekly examination record by the the regulation provided tests and the examiner, the examiner must verify mine superintendent, mine manager, or measurements are made at the the record by initials and date by or at other mine official to whom the mine appropriate locations. the end of the shift for which the foreman is directly accountable. A full Paragraph (a)(2)(iv) provides that, in examination was made. As with other discussion of second level lieu of the requirements of (i) through records required by this rule, the countersigning can be found in the (iii), alternative methods of evaluation records of weekly examinations may be General Discussion section of this may be specified in the mine ventilation kept either in secure books that are not preamble. plan provided that the alternative susceptible to alteration, or Paragraph (h) of the final rule also method results in proper evaluation of electronically in a computer system so contains revisions to the existing rule to the effectiveness of the bleeder system. as to be secure and not susceptible to allow for electronic storage of records. One commenter cited several explosions alteration. A detailed discussion of Paragraph (i) requires that the records that were related to bleeder system record books and the use of computers required by § 75.364 be maintained at a deficiencies and linked poor design and to maintain records can be found in the surface location at the mine for one year inadequate maintenance with the General Discussion of this preamble. and be made available for inspection by provision allowing examination at Commenters suggested that the final authorized representatives of the evaluation points in lieu of traveling the rule only require the examiner to record Secretary and the representatives of 9806 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations miners. A discussion of comments requirement. Comments consistently conditions and mining system at the concerning the use of computers to indicated confusion and mine. In addition, § 75.370 provides the maintain records can be found in the misinterpretation of the proposal’s procedures for submittal, review and General Discussion of this preamble. scope, offering a wide range of approval of the plan to assure that the Under the final rule, the record of interpretations. plan for each mine will address the weekly examinations must be As discussed in the preamble to the conditions in that mine. countersigned by the mine foreman or 1992 rule, most hazards are violations of In this final rule, MSHA revises the equivalent mine official by the end of mandatory standards. Requiring the existing plan submission and approval the mine foreman’s next regularly examiner to look for all violations process to provide an increased role for scheduled working shift. Based on regardless of whether they involve a the representative of miners in the mine comments noting that traditional mine distinct hazard could distract the ventilation plan approval process. This management structures have changes at examiner from the more important revision is consistent with the statutory some operations, the final rule provides aspects of the examination. Despite an purpose that miners play a role in safety that an official equivalent to mine attempt in the proposal to limit the and health. foreman may countersign the records. scope of the examination for The final rule redesignates existing The purpose of this change is to require noncompliance to situations that, paragraphs (b)(1) through (f) as (c)(1) that when a mine foreman is not present ‘‘could result in a hazardous condition,’’ through (g), revises paragraphs (a)(3), in the mine’s management structure, an commenters expressed a high level of (c)(1), and (f), and adds a new paragraph equivalent official must perform this misunderstanding. Although a similar (b). The proposal would have modified function. As with the existing standard, requirement existed between 1970 and the existing rule by providing that the second level countersigning by the mine 1992, MSHA generally did not broadly representative of miners would receive superintendent is not required by the apply the standard. After consideration a copy of the proposed mine ventilation final rule. of all comments and a review of the plan or proposed revisions at the time The record of weekly examinations history since the current standard of submittal to MSHA, and the approved must be made in secure media not became effective, MSHA concludes that plan upon approval by MSHA. The susceptible to alteration. If records are the existing standard is appropriate and existing rule provided that the made electronically, they must be best serves the objective of giving submitted plan and the approved plan unalterable, shall capture dates and examiners clear guidance for making were to be made available to the miners signatures, must be accessible to effective examinations. Accordingly, the representative. Another proposed representatives of the miners and the proposal for examinations to include change was to specify the length of time Secretary, and must be capable of noncompliance with mandatory safety the submitted plan and the approved producing printouts. Further discussion and health standards is not adopted in plan would be posted at the mine. A of both the issues of second level the final rule. new paragraph (b) would allow for countersigning and acceptable record Paragraph (b)(7) has been added to timely comments on the submitted plan books or electronic records can be found require that water pumps not examined from the miners representative. in the general discussion section of this as part of a preshift examination Representatives of miners would receive preamble. conducted during the previous 7 days written notice of plan approval. The The proposal, at paragraph (b), would be examined during the weekly final rule, for the most part, adopts the have added a requirement that the examination. This modification is an proposed rule. However, the final rule certified person examine for outgrowth of comments received in requires that the miners representative noncompliance with mandatory safety response to proposed § 75.360, which be notified of the submittal of a mine or health standards that could result in would have required examination of ventilation plan and revisions to a plan a hazardous condition. The proposal certain pumps. As discussed in the 5 working days prior to submittal and drew considerable objection. preamble to § 75.360, one commenter that the representative of miners be Commenters objected to the unlimited persuasively argued that all pumps provided with a copy of the plan upon scope of the term ‘‘noncompliance,’’ the should be examined. Pumps that are not request. It also requires that MSHA legal propriety of recording preshift examined under the final rule provide a copy of miners’’ noncompliance, and the additional are generally located in remote areas of representative comments to the mine examination time required to determine the mine. These pumps are operator upon request. noncompliance, the diversion of the appropriately examined on a weekly Final rule paragraph (a)(3) is divided examiner’s attention away from key basis. into (a)(3)(i), (a)(3)(ii), and (a)(3)(iii) and safety conditions to minor compliance contains new requirements in (a)(1)(i) issues. Even so, another commenter Section 75.370 Mine Ventilation Plan; and (a)(1)(iii). Paragraph (a)(3)(i) supported the proposal as necessary, Submission and Approval requires that the mine operator notify suggesting that the earlier rule was Mine ventilation plans are a long the representative of miners that a mine intended to require operators to assure recognized means for addressing safety ventilation plan or a plan revision is to full compliance through the required and health issues that are mine specific. be submitted to the District Manager for examinations. The commenter correctly Individually tailored plans, with a approval. This notification must be noted that a requirement to examine for nucleus of commonly accepted given at least 5 days prior to safety and health violations was in practices, are an effective method of submission. Paragraph (a)(3)(i) further effect from 1970 until 1992 when it was regulating such complex matters as requires that the operator provide a deleted. mine ventilation and roof control. copy of the plan or revision to the While the proposed standard Section 75.370 requires that each mine representative of miners at the time of appeared attractive in concept, the operator develop and follow a notification, if requested. Paragraph majority of comments received indicate ventilation plan that is approved by (a)(3)(ii) requires that the proposed plan that the standard would result in MSHA and that is designed to control be made available for review by the considerable confusion. In addition, it methane and respirable dust in the representative of miners, and paragraph would be impractical to define and mine. Section 75.370 further requires (a)(3)(iii) requires that the proposed adequately limit the scope of the that the plan be suitable to the plan or revision be posted on the Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9807 bulletin board at the mine and remain miners and their representatives in the Should such a situation arise, it would posted until it is approved, withdrawn, development of mine ventilation plans be handled by the district manager on or denied. in detail. MSHA continues to believe a case by case basis. Generally, the Commenters representing both that miners have a stake in the district manager would be guided by operators and labor suggested that the implementation of the ventilation plan whether the condition, if uncorrected, proposed plan or revision should be at each mine. could result in a health or safety hazard provided to the representative of miners The final rule is consistent with the or an imminent stoppage of production prior to being submitted to the district existing plan approval process and does in the mine or an area of the mine. manager for approval. One commenter not change the process for developing Paragraph (a)(3)(ii) of the final rule suggested that the proposed plan or and approving a mine ventilation plan. retains the requirement that a copy of revision be provided to the The operator continues to be the party the proposed plan or any proposed representative of miners 10 days prior to responsible for developing the mine revisions be made available for submittal and stated that this could ventilation plan and MSHA continues to inspection by the representative of the speed up the approval process by be responsible for reviewing and miners. Although some commenters allowing the miners affected to approving the plan. The proposed rule, thought this was superfluous in light of investigate the proposed change and by in paragraph (a)(3)(i), would have the requirement in paragraph (a)(3)(i), permitting the operator and the required the operator to provide a copy MSHA believes that this requirement representative of miners the opportunity of a proposed mine ventilation plan or facilitates the overall approval process. to reconcile differences prior to the any proposed revision to the Paragraph (a)(3)(iii) of the final rule operator’s seeking approval. The representative of miners at the time of retains the existing requirement that commenter pointed out that some submittal to MSHA. The final rule copies of the proposed plan and existing wage agreements have adopted requires the operator to notify the proposed revisions be posted on the such a requirement. The commenter representative of miners of the submittal mine bulletin board and clarifies that suggested that the rule should also of the proposed plan or revision at least posting is required at the time of include such a requirement because 5 working days prior to submittal to the submittal. MSHA believes that the operators do not always comply with district manager. In addition, a copy is posting requirement is necessary to the requirements of the agreement. This to be provided to the representative of assure that all miners at a mine will commenter further suggested that there miners upon request. In most instances, have the opportunity to review the have been instances where plans have this should provide sufficient time for a proposed plan or revision and provide been revised and acted upon before the review of the proposed plan or revision input during the review process. One representative of miners was aware that and a discussion between the operator commenter suggested that proposed a revision was to be made. Other and the representative of miners over plans or proposed revisions be required commenters suggested that the proposed concerns that may exist. to remain posted for only 30 days from plan or revision be provided 3 days In response to comments, paragraph the time of submittal so as not to prior to submittal. These commenters (a)(3)(i) is further revised in the final ‘‘clutter up the bulletin board.’’ This expressed different reasons for the rule to reflect that there are occasions suggestion has not been included in the suggestion. One of these commenters when mine ventilation plans must be final rule because the mine ventilation stated that the industry has historically submitted and reviewed within a very plan impacts miners’’ safety and health maintained that since the plan is short time frame. In response to a and it is important for miners to know submitted to the district manager for question during one of the public which plan provisions are in effect approval, and developed by the mine hearings on the proposed rule, one versus those which have not been operator, the requirement to provide commenter stated that miners approved. Another commenter copies to other parties is contrary to the understand that at times situations may suggested that proposed plans and Mine Act. However, the commenters arise that necessitate an operator revisions be posted 10 days prior to further stated that their suggestion submitting a plan or revision to MSHA submittal to MSHA. This reflected an attempt to balance all that will not allow for the ten (10) day recommendation has not been included interests and resolve this matter. provision for the representative of the in the final rule to assure that there is These comments are constructive and miners. no confusion between plans that are MSHA has used all of them to fashion Paragraph (a)(3)(i) of the final rule approved and proposed provisions a final rule which is consistent with the requires that in the case of a situation awaiting MSHA approval. To require statutory purpose and responsive to the requiring immediate action on a plan posting of proposed plan revisions prior mining community. One commenter revision, notification of the revision to submission to MSHA would create attempted to relate the rule to terms of shall be given, and if requested, a copy another category of mine ventilation a wage and hour agreement. MSHA does of the revision shall be provided to the plans which could result in unnecessary not intend or have authority to affect representative of miners by the operator, confusion. This is particularly true since any wage and hour agreement. MSHA at the time of submittal to the district the representative of miners will have believes that the involvement of the manager. The final rule does not include the plan at least 5 days prior to miners and their representative in the the recommendation of one commenter submittal. Because there are occasions plan approval process will improve the that the plan or revision be provided to where a representative of miners does health and safety of the Nation’s coal the representative of miners before not feel it is necessary to review a plan miners. As suggested by commenters, submittal because to so require could or revision, the rule only requires the miners who work under the mine delay approval of a change necessary to operator to provide a copy of the plan ventilation plan are often in the best health and safety. Questions will or revision upon request. position to know the effect of proposed undoubtedly arise relative to what Paragraph (b) of the final rule revisions. MSHA has long recognized constitutes a situation requiring specifies procedures that the the importance of input from the miners expedited action. MSHA does not representative of miners may use to and their representatives in the plan- believe that it is possible or appropriate provide input in the mine ventilation approval process. The preamble to the to set forth all circumstances which plan review process. Under the final existing standard discusses the role of would be covered by the standard. rule, the representative of miners may 9808 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations submit comments on the proposed plan proposed plan or proposed revision. Commenters both supported and or revisions to the plan to the district Paragraph (c)(1) adds a requirement that opposed paragraph (f). Those in manager for consideration. Recognizing a copy of this notification be sent by the opposition suggested that some of the that in some instances a decision district manager to the representative of requirements were unnecessary in light relative to the approval or denial of a miners. This provision is intended to of other requirements in the standard. revision must be made in a short time assure that the representative of miners Those supporting the rule suggested that frame, the final rule requires that is kept informed of the status of the plan the operator should be required to comments be made in a ‘‘timely approval. One commenter pointed out provide a copy of the approved plan or manner.’’ MSHA has not defined that quite often, plan provisions are revision to the representative of miners ‘‘timely manner’’ but would consider it modified during the review process and and to make it available within 24 hours to be a period of time that does not the final approved plan may be different of notification of approval. Other unnecessarily delay the approval from that which was originally commenters stated that mine ventilation process. The district manager will submitted. This commenter suggested plan approvals are sometimes sent to continue to be available to discuss with that when a change is made to a the company offices and not necessarily the representative of miners all aspects submission, the representative of miners to the mine. They stated that in these of the plan as they affect miners’ health should be notified of the intended cases, there could be a delay in copies and safety at any time during or change and afforded the opportunity to of the approved plan or revision following approval or denial of a comment. MSHA agrees that changes to reaching the mine. MSHA crafted the proposed plan or revision. Commenters proposed plans do occur during the final rule in light of the existing suggested that the representative of review process. Consistent with paragraph (d) which requires that miners be given a deadline for the MSHA’s philosophy that all parties to operators instruct persons affected by submission of comments similar to the the plan approval process need to be the mine ventilation plan or its revision time frame established in paragraph aware of the status of a proposed plan prior to implementation. Changes to the (a)(3)(i) for the operator to provide or revision, MSHA would expect that plan do occur during the approval copies of proposed plans and revisions the operator would inform the process; MSHA would expect that the to the representative of mines. In representative of miners of changes to plan or revision would be available to support of this recommendation, these the original submittal. However, to the person conducting the required commenters stated that unlimited time require that notification be provided for training and, therefore, would be could unnecessarily delay the approval each and every change, no matter how provided to the representative of process. This recommendation is not minor, could effectively stop the plan miners. included in the final rule due to the review and approval process. Therefore, One commenter suggested that, complexity of some plans and revisions. the final rule does not adopt the because the approved plan is required to MSHA’s goals are for a process that suggestion of the commenter. Some be made available for inspection by the includes both timely review and commenters interpreted paragraph (c)(1) representative of miners, there is no approval and opportunity for input from as requiring the district manager to need for the plan or revision to be miners and the Agency believes both provide a copy of the approved plan to posted on the bulletin board. This goals can be accomplished under the the representative of miners. Paragraph commenter identified some logistical final rule. MSHA does not believe that (c)(1) only requires that the district problems associated with posting of plans stating that removal of the plan this provision will unnecessarily delay manager provide to the representative of from the bulletin board could be a the plan approval process since the final miners a copy of the notification of rule, like the proposal, requires problem. approval or denial that is sent to the This same commenter proposed that comments to be submitted in a timely operator. manner. notification of the miners of a revision One commenter suggested that Proposed paragraphs (f)(1), (f)(2) and to the mine ventilation plan should be comments submitted by the (f)(3) are adopted in the final rule. the responsibility of the representative representative of miners to the district Paragraph (f)(1) is new and requires the of miners. MSHA does not agree that manager as part of the plan approval operator to provide the representative of making the plan available for inspection process should be provided to the miners with a copy of the plan or by the representative of miners is an operator. MSHA would expect that revision following notification of adequate substitute for posting of the during the five day period before the approval, if requested. This facilitates plan or revision so as to make it plan is submitted to the district manager review of the plan or revision by the available to all miners at all times. Nor the operator and the representative of representative of miners. Also, the final does MSHA agree that the responsibility miners will discuss the plan and inform rule continues in paragraphs (f)(2) and for assuring that miners are aware of the the other of their respective positions. (f)(3) the existing requirements that the requirements of the plan is the proper MSHA would encourage the approved plan or revision be made function for the representative of representative of miners to provide a available for inspection by the miners. MSHA recognizes that copy of their comments to the operator representative of miners and be posted difficulties can exist in assuring that the prior to submitting them to MSHA. on the mine bulletin board. Like the approved plan or revision is posted, However, to assure that all parties to the proposal, a new requirement in however the safety benefits of having plan approval process are aware of each paragraph (f)(3) also requires that an the plan available to the persons others position paragraph (b) of the rule approved plan or revision must be affected by its provisions far outweigh provides that the district manager will posted within 1 working day of any logistical problems. provide the operator with these notification of the approval and must comments upon request. remain posted for the period that the Section 75.371 Mine Ventilation Plan; Paragraph (c)(1) of the final rule is plan is in effect. This helps to assure Contents unchanged from the proposal and that the miners themselves, as well as Section 75.371 sets forth the retains the existing requirement that the the representative of miners, are aware information that the operator must district manager notify the operator in of the provisions of the mine ventilation include in the mine ventilation plan. writing of the approval or denial of a plan once it is approved. Because the plan deals with situations Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9809 unique to a mine, the general rules Paragraph (r) of the final rule requires measurements required by the existing applicable in other standards do not fit. that the mine ventilation plan include standard, are essential to evaluate the For the convenience of the reader, the the location where air quantities will be ventilation of worked-out areas and standard that sets out the general rule or provided, and the ventilation controls determine the effectiveness of bleeder provides for an option to include a that will be used to provide these systems. The final rule, therefore, does provision in a plan will generally cross quantities. This language was included not include the suggested changes in reference to the appropriate paragraph in the reproposed provision and in either § 75.364 or § 75.371(z). in § 75.371. § 75.325(d), which requires that the Another commenter suggested that MSHA proposed revisions to existing quantity of air that will be provided since the current standards do not paragraphs (b), (s), (z) and (bb) of during the installation and removal of require a specific volume of air in § 75.371 and reproposed existing mechanized mining equipment, the bleeder entries, it is unnecessary to paragraph (r). MSHA’s final rule adopts location where this quantity will be measure the air volume. Proper the proposal for paragraphs (s), (z) and provided, and the ventilation controls evaluation of the effectiveness of a (bb). MSHA revises its proposed that will be used, be included in the bleeder system can only be achieved by paragraph (r) to make conforming mine ventilation plan. In reproposing comparison of measurements taken in changes with other provisions. Finally, paragraph (r), MSHA inadvertently the bleeder system. In most instances, the final rule retains the existing excluded from § 75.371(r) the one of the most important language for paragraph (b). requirement relative to the location measurements is the air quantity at As stated in the General Discussion where the air quantity is provided. The strategic points in the bleeder system. section of this preamble, provisions final rule has been modified in Therefore, the final rule includes the concerning the installation and removal § 75.371(r) to conform to the proposed requirement that the locations of mechanized mining equipment that requirements of § 75.325(d). where air quantity measurements will were promulgated in May of 1992 as The final rule revises existing be made in the bleeder system be part of the safety standards for paragraph (s) to conform to changes in specified in the mine ventilation plan. underground coal mine ventilation were § 75.362(d)(1)(iii). The final rule deletes Existing paragraph (bb) requires that reproposed in May of 1994 as part of the portion of existing § 75.362(d)(2) the location of ventilating devices used this rulemaking for the purpose of which requires that the mine ventilation to control air movement through receiving and giving full consideration plan include the location of tests which worked-out areas be included in the to all pertinent comments on this issue. are to be made closer to the working mine ventilation plan. The final rule Paragraph (r) of the final rule is one of face than the last permanent roof reinstates a requirement contained in the provisions that was reproposed. supports using extendable probes or the previous regulation, that the Section 75.325(d) of the final rule other acceptable means. The final rule location and sequence of construction of requires that areas where mechanized in paragraph (d)(1)(iii) requires that the proposed seals also be indicated. This mining equipment, including longwall mine ventilation plan specify the requirement is consistent with equipment, is being installed and frequency and location of the methane § 75.334(e) which requires that the removed be ventilated. Paragraph (r) of tests if required more often than 20 sequence of construction of seals be § 75.371 requires that the quantity of air minutes by § 75.362(d)(1)(iii). One specified in the mine ventilation plan. that will be provided be included in the commenter suggested adding the words, Some commenters on paragraph (bb) mine ventilation plan. Most commenters ‘‘or at other locations and frequencies if and § 75.334(e) suggested that proper either supported the provision, citing approved by the district manager and sequencing of seals can change due to the explosion at the William Station contained in the ventilation plan.’’ The mining conditions and should not be Mine, or stated that the standard was suggested clarification is not necessary made a part of the mine ventilation originally promulgated inappropriately and has not been adopted in the final plan. Another commenter suggested that and did not substantively comment on rule. because the time to get a plan approved the requirement. One commenter The final rule revises paragraph (z) to can be lengthy, it may even create suggested that the quantity of air conform to § 75.364(a). Section unnecessary hazards. Proper sequencing specified in the plan under paragraph (r) 75.364(a) addresses the measurements of seal construction is necessary for should represent the minimum quantity to be made to evaluate the effectiveness effective ventilation during sealing. that will be provided and the location of bleeder systems and the ventilation of Therefore, the final rule requires the specified should be identified as what worked-out areas during the weekly location and sequence of the would be typical so as to give the mine examination. The final rule requires that construction of seals be specified and the flexibility to adapt to varying mine the locations where these measurements approved in the mine ventilation plan. conditions. This recommendation is are made or alternative methods of If a delay in seal construction will result consistent with MSHA’s intent and providing these evaluations be included in a hazard to miners, the review and MSHA has included it in the final rule in the mine ventilation plan. One approval of the plan can be expedited as to help clarify the rule. commenter suggested that the locations explained in the preamble discussion of One commenter suggested that the where air measurements are made § 75.370. ventilation scheme shown in the plan should not be required in the mine One commenter on paragraph (bb) should be representative of the method ventilation plan. The commenter made suggested that the locations of of ventilation to be used. MSHA agrees a similar suggestion relative to the stoppings, regulators, and bleeder that the mine ventilation plan should requirement in § 75.364 that air connector entries are better shown on include a method of ventilation that is measurements be made to evaluate the the mine map with a notation that it is representative of that used in the mine. ventilation of worked-out areas and subject to approval under § 75.371. The However, MSHA has not adopted this determine the effectiveness of bleeder existing standard permits appropriate suggestion since the plan must be systems. According to the commenter, information required under § 75.371 to specific enough so that the operator, the since no specific air volume is required be shown on the map required by miners, the representative of miners, it is not necessary to measure the § 75.372. This is explained in the and MSHA are assured that all areas are volume present. The measurement of air preamble discussion for existing being adequately ventilated. quantity, as well as the other § 75.371. MSHA recognizes that some of 9810 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations the information required to be feet. Like the previous standard, this the ventilation map, this information submitted under § 75.371 is best shown revision would assure that all adjacent would not be subject to approval. When on a map. Rather than require additional mine workings appear on the § 75.372 shown on the § 75.372 map, only that maps, this information may be shown map in those cases where operators do portion of the map that contains on the § 75.372 map. When shown on not use a § 75.1200 map for their information required under § 75.371 is the § 75.372 map, only that portion of required submission. subject to approval by the district the map that contains information One commenter suggested that this manager. The information required by required under § 75.371 is subject to requirement not be included because paragraph (b)(19) does not fit this approval by the district manager. mine operators have no legal obligation criteria and therefore is not subject to The proposal would have revised or authority to force an adjacent land approval by the district manager. paragraph (b) to reflect the proposed owner to provide the required As explained in the discussion of changes in paragraphs (c) and (d) of information. MSHA recognizes that the § 75.301, instances have developed § 75.312 allowing alternative testing mine operator may, in some instances, where operators direct air from an methods for main mine fan automatic have difficulty obtaining this intake air course to ventilate shops, closing doors and fan signals. Because information. The hazards that exist electrical installations, or for other the final rule does not include the within abandoned mines, however, purposes, and this air is then coursed to proposed changes to § 75.312(c) and (d), warrant such a requirement. the surface and is not used to ventilate final rule § 75.371(b) conforms. Additionally, as noted previously, this working places. Under one requirement is consistent with the interpretation of the existing definition, Section 75.372 Mine Ventilation Map requirements of § 75.1200(h) and will, because this air has not ventilated a The mine ventilation map provides a therefore, impose no additional burden working place or a worked-out area, the basis for understanding how a particular on the operator. Agency experience air course cannot be considered a return coal mine is ventilated. An accurate and reveals that the existing standard, air course. In these instances, the final up to date map of the mine enables the § 75.1200(h), has not proven to be rule in § 75.301 expressly permits the operator and MSHA to review the practically difficult for compliance. In redesignation of the affected portion of mine’s ventilation plan to determine the addition, this information would be the air course as a return air course. appropriateness of the ventilation available to the miners and would Because it is important that personnel, system to the conditions in the mine. enhance their understanding of the including examiners, the miners’ Only through a thorough understanding ventilation system and aid them in the representative, and representatives of of the ventilation system can the event of an emergency. the Secretary, know which air courses operator and others determine whether Another commenter suggested that have been redesignated, the final rule the system is capable of preventing the rule explicitly require that all mine requires that these air courses be shown methane accumulations, possible workings, including workings from on the map. Paragraph (b)(20) requires explosions, and high levels of respirable auger mining, highwall mining and strip that the location of redesignated air dust. Generally, § 75.372 requires that mining, be shown on the map. This courses be shown on the ventilation the necessary information be provided recommendation has not been included map. Commenters were supportive of on the map. in the final rule because MSHA believes this provision. The final rule revises existing that the final rule is clear and requires paragraph (b)(3) and adds new any workings from other mines, such as Section 75.380 Escapeways; paragraphs (b)(19) and (b)(20). strip, auger and similar workings, to be Bituminous and Lignite Mines Paragraph (b)(3) addresses which shown if they are in the same coalbed When a fire, explosion or other adjacent workings must be shown on and are within 1,000 feet of existing or emergency necessitates an immediate the mine map. The final rule, like the projected mine workings. evacuation of a mine, the designated proposal, requires all known adjacent Proposed paragraph (b)(19) is adopted route for miners to leave the mine is the workings within 1,000 feet of existing or in the final rule. The proposal was escapeway. The escapeway should be projected mine workings to be shown on drafted in response to comments appropriately located and designed to the mine map, regardless of whether the received at public meetings. It reinstates be free of obstructions and hazards to workings are located on mine property the requirement in the previous assure safe passage from the hazardous or on adjacent property. The existing standard that the mine map include the underground environment. The final rule required that only the adjacent entry height, velocity and direction of rule addresses requirements for workings within 1,000 feet be shown if the air current at or near the midpoint escapeways. Paragraphs (b)(1) and (b)(2) they are on mine property. of each belt flight where the height and set forth the requirements for the MSHA has concluded that it is width of the entry are representative of location of the escapeway when necessary to require that the mine the belt haulage entry. Paragraph (b)(19) installing and removing mechanized ventilation map include all known of the final rule should assist the mining equipment. Paragraphs (d)(3) workings located in the same coalbed examiner in rapidly determining through (d)(5) deal with the minimum within 1,000 feet of existing or projected whether the air is flowing in its normal dimensions of escapeways. Paragraph (f) workings, regardless of whether the velocity and direction during addresses the equipment that can be workings are located on the mine examination of the belt entry required used in escapeways and the property. Hazards, such as methane and elsewhere in subpart D. One commenter requirements for fire suppression water accumulations and irrespirable suggested that this requirement is systems on this equipment. Finally, atmospheres, exist in old workings redundant because the mine ventilation paragraph (i) sets the minimum slope of whether located on mine property or plan already requires that this be an escapeway. not. MSHA also notes that this revision ‘‘illustrated’’. MSHA does not agree that The final rule republishes existing makes paragraph (b)(3) consistent with the requirement is redundant since paragraphs (b)(1) and (b)(2) and revises existing paragraph (h) of § 75.1200, there is no such requirement in the paragraph (d)(3) through (d)(5), (f) and Mine map. Paragraph (h) of § 75.1200 mine ventilation plan. (i)(2). requires that the mine map show all MSHA emphasizes that like much of Sections 75.380 (b)(1) and (b)(2) of the adjacent mine workings within 1,000 the information required to be shown on final rule deal with escapeways on Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9811 working sections and areas where undercasts, the height of the escapeway proper planning and engineering. Also, mechanized mining equipment is being may be less than 5 feet provided the MSHA’s experience does not reveal any installed or removed. MSHA adopts the height is sufficient to enable miners, compliance problems associated with proposal in the final rule. An in-depth including disabled persons, to escape the standards since November 1992. discussion of the proposal of provisions quickly in an emergency. It was brought One commenter recommended concerning the installation and removal to the attention of MSHA by one changing the phrase ‘‘disabled persons’’ of mechanized mining equipment is commenter that in some instances the in paragraph (d)(3) to ‘‘injured persons.’’ presented in the General Discussion removal of roof support or the lowering In support of this recommendation, the section of this preamble. of the tops of overcasts may be commenter stated that the phrase is MSHA specifically solicited necessary to provide the 5-foot height intended to include persons who may comments on those portions of the required by the existing rule. It has been be injured but not necessarily disabled. proposal dealing with the installation suggested that this could result in a MSHA does not believe that the change and removal of mechanized mining diminution of safety. is needed since there are many equipment, including paragraphs (b)(1) One commenter suggested that situations that occur underground that and (b)(2) of § 75.380. These paragraphs escapeways should be 6 feet in width can result in a person being injured but require that an escapeway be provided and 5 feet in height without exception. not severely enough to need assistance to areas where mechanized mining This suggestion has not been adopted in (i.e. disabled) to be transported from the equipment is being installed or the final rule. Under the previous rule, mine. An escapeway that will permit removed. Only one substantive escapeway dimensions were addressed the transport of disabled persons, i.e. comment was received. The commenter through criteria and operators routinely the more severely injured persons, can suggested that the location of the requested and received approval for be expected to accommodate persons beginning of the escapeway during lesser dimensions than that in criteria with lesser injuries. The term disabled equipment installation and removal based on a performance test referred to with respect to the concept of injured should be specified in the mine as a ‘‘stretcher test.’’ As applied, this has existed in the regulations for over 25 ventilation plan to minimize the test required 4 persons to carry a fifth years and MSHA is not aware of any potential for congestion during person on a stretcher through the area problems with its use. movement of heavy equipment. The in question. The purpose of the Questions arose during informational commenter stated that the proposal ‘‘stretcher test’’ was to demonstrate that meetings regarding the requirements for would eliminate all access to a longwall the lesser dimension would not delay the height of doors in escapeways. The during the installation or removal of the escape. The final rule permits lesser final rule, like the proposal, permits longwall equipment except for the face escapeway heights and widths under door heights of less than 5 feet under crosscut, and lead to accidents. specific circumstances provided the certain conditions. Under the previous MSHA believes that the location height and width maintained enable rule, escapeway dimensions, including where the loading point will be miners to escape quickly in an door heights, were addressed through installed and where the loading point emergency. The final rule requires that criteria and operators routinely was last located prior to removal are when there is a need to determine requested and received approval for easily identifiable and offer the best whether sufficient height or width is lesser dimensions than that in criteria choice. The suggestion of the provided, MSHA may require a stretcher based on a performance test referred to commenter has not been adopted in the test where 4 persons carry a miner as a ‘‘stretcher test.’’ Under the final final rule. In addition, the commenter through the area in question on a rule, door heights of less than 5 feet are noted that mobile equipment was stretcher. permitted provided the operator can needed during the installation and This commenter suggested that the demonstrate that persons, including removal of longwalls; this equipment results of a stretcher test could be disabled persons, can escape without can be used in the escapeway if manipulated by having the most fit delay. The method of demonstration properly attended and protected with miners carry the smallest miner. MSHA would be the stretcher test, the same as proper fire suppression. continues to believe that the stretcher for the escapeway. Additionally, there As with the existing rule, paragraph test is appropriate. MSHA’s experience are normally few doors in an escapeway (d)(3) of the final rule generally requires is that the stretcher test provides a good and the distance traversed in a door is escapeways to be maintained to a height measure of the ability of miners to very short. Passing the stretcher test of 5 feet from the mine floor to the mine escape. assures that there would be no roof, excluding the thickness of any roof Since the escape of miners is not diminution of safety under the new support. To accommodate mines in low impeded, the demonstration that there provision. Also, since significant seams, the rule provides that where the is no delay in escape assures that there pressure differentials can exist in coalbed is less than 5 feet, the is no reduction in safety. escapeways, doors which are less than escapeways shall be maintained at least MSHA received similar comments 5 feet are easier to open. to the height of the coalbed. As in the regarding the dimensions of escapeways Paragraph (d)(4) of the existing rule past, convergence, the reduction in developed on or after November 16, requires the escapeways be maintained entry height due to roof sag or floor 1992, (the effective date of the existing at least 6 foot wide with some heave, which occurs as a natural rule). Commenters suggested that where exceptions. Widths of less than 6 feet geologic process, will be excluded when these escapeways pass across or under are permitted in either the primary or determining escapeway height unless it overcasts or undercasts, the height of the alternate escapeway in instances would impede the escape of miners, the escapeway should be permitted to where supplemental roof support is including disabled persons, in the event be less than 5 feet provided the height necessary and where the route of travel of an emergency. The final rule modifies is sufficient to enable miners, including passes through doors or other (d)(3) to provide that in areas of mines disabled persons, to escape quickly in permanent ventilation controls. In both where escapeways pass through doors an emergency situation. This suggestion cases, existing paragraph (d)(4) requires or in areas of mines developed before is not adopted in the final rule since that the escapeway be at least 4 feet November 16, 1992 where escapeways sufficient clearance should have been wide. Under the final rule, paragraph pass across or under overcasts or provided in these escapeways through (d)(4)(iii) permits the alternate 9812 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations escapeway to be less than 4 feet wide Experience under the existing and the the Agency will assess the adequacy of under certain conditions. previous rule indicates that track- escapeway widths in such areas by Paragraph (d)(4)(iii) applies to the mounted and rubber-tired equipment means of the stretcher test to assure that alternate escapeway only and allows the which could be used for evacuation the width is sufficient to enable miners, escapeway width to be less than 4 feet should be excluded when determining including disabled persons, to escape for the same conditions addressed in escapeway widths. Track-mounted quickly in an emergency. paragraphs (i) and (ii) if it can be supply cars enhance safety by providing Like the proposal, the final rule in demonstrated that sufficient width is a readily available supply of rock dust, paragraph (d)(5) revises the existing maintained to enable persons, including roof support material, and other language dealing with the location of disabled persons, to escape quickly in essential safety related material. Section escapeways. It provides that escapeways an emergency. The conditions that 75.214 requires that a supply of shall be located to follow the most could warrant lesser widths are the supplementary roof support material direct, safe and practical route to the locations where the alternate escapeway and the tools and equipment necessary nearest mine opening suitable for the passes through doors or other to install the materials be available at a safe evacuation of miners. A question permanent ventilation controls, readily accessible location on each arose during an informational meeting including constructed approaches to working section or within 4 crosscuts of as to whether MSHA intended that the permanent ventilation controls and each working section. In contrast, the existing rule eliminate the requirement facilities addressed in paragraph (d)(6), Agency received comments that that escapeways be routed to the or where supplemental roof support is escapeways should be maintained at ‘‘nearest mine opening.’’ It was not required. least 6 feet in width except in rare cases MSHA’s intent to change this One commenter stated that the where roof supports could reduce the requirement from the previous standard. alternate escapeway should be width to no less than 4 feet over a The existing requirement that the maintained at a minimum width of 4 limited distance. escapeway follow the most direct route feet without exception and noted that The final rule takes a practical to the surface would, in fact, require the on several occasions miners have been approach, preserving the requirement route to go to the nearest mine opening. forced to use the alternate escapeway in that escapeways must be of sufficient However, to eliminate any confusion emergencies. The commenter noted that width to enable miners, including that may exist, the final rule revises it could be difficult to transport an disabled persons, to escape quickly in paragraph (d)(5) and adopts language injured person on a stretcher at widths an emergency. The final rule also similar to that in previous regulation, under 4 feet. The final rule requires that recognizes that certain necessary mining § 75.1704–2(a), that is, that the when there is a need to determine and transportation equipment is located escapeway must follow the most direct, whether adequate width is provided, the on and near working sections. For safe and practical route to the nearest stretcher test would be applied. example, necessary supply cars mine opening suitable for the safe Under the previous rule, approval had containing safety related material like evacuation of miners. been granted for reduced escapeway rock dust, roof support, ventilation One commenter stated that widths based on the stretcher test. These control construction material, etc., is escapeways should not be permitted to approvals were due to the need to allowable. Additionally, longwall pass an opening to be routed to a more provide additional roof support and, in section equipment commonly includes, distant opening. Another commenter some cases, the need for passage but may not be limited to, starter box, stated that the nearest mine opening through ventilation controls. water pump, section belt tailpiece and may not always be the safest due to roof Additionally, as newer portions of a takeup assembly, section transformer, conditions or other factors. MSHA mine age and require additional roof and emulsion pump. Because this acknowledges that the nearest mine support, the final rule allows widths of equipment is necessary to the operation opening may not always be the safest less than 4 feet in the alternate of the longwall, it also is permitted to route to the surface. A number of factors escapeway where this roof support be in the escapeway near the working affect whether or not the safest, most exists, provided the stretcher test is section under the final rule. In direct, practical route has been selected. passed. MSHA believes this approach continuous miner sections as well as These factors include roof conditions, achieves the intended result of the longwall sections, mantrips and travel height, fan location, physical standard while at the same time personnel transportation equipment, dimensions of the mine opening, and addressing the safety issues of providing which could be utilized in an similar considerations. For example, if necessary supplemental roof support emergency evacuation, is allowable. The bad roof conditions are present along and permitting travel in the alternate final rule would not prohibit this the shortest direct route and those roof escapeway. equipment in escapeway entries on or conditions are beyond reasonable The preamble to the proposal stated near working sections. The rule would control, then an alternate ‘‘safe’’ route that under the existing standard require, however, that sufficient designated by the mine operator may be § 75.380(d)(4) mobile equipment should clearance be maintained to permit rapid appropriate. However, the presence of not be considered when determining escape. roof falls does not necessarily indicate escapeway width unless the equipment This aspect of the final rule maintains that the passageway would not be has been permanently abandoned in the the historical approach taken to suitable for evacuation if it is reasonable escapeway or would be obstructing the addressing issues of clearance in the to rehabilitate the area. By way of escapeway for a significant portion of a confined environment of underground another example, where coal seam shift. Commenters objected that this coal mines. The final rule, while thickness varies to the extreme, the interpretation would be unduly permitting reduced dimensions near shortest route may be through lower restrictive and impractical. Commenters working sections as discussed above, coal, making travel relatively slow and noted that certain parked mobile requires that the escapeways always be difficult. An alternate route through a equipment would enhance miner safety maintained of sufficient width to enable high passageway may permit easier where the equipment could be used to miners, including disabled persons, to travel. Such an alternate route, although transport people out of the mine in the escape quickly in an emergency. As longer, may be more practical and event of an emergency. discussed elsewhere in this preamble, therefore may be more appropriate. Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9813

Similarly, there can be other instances in areas of the primary escapeway to those areas of the escapeway that where the ‘‘nearest mine opening’’ may developed after November 15, 1992. were developed prior to March 30, 1970 not be suitable for safe evacuation of Paragraph (f)(2) of the final rule and where separation did not exist on miners. For example, an old mine shaft modifies the existing rule for clarity and November 16, 1992. may not be safe for travel because of expands the application of certain Another commenter correctly badly deteriorated conditions, such as a requirements contained in paragraphs interpreted proposed paragraph (f)(2) as deteriorated shaft lining or deteriorated (f)(3) through (f)(7) to the entire primary extending the requirement that limits timbers, even though the shaft is still escapeway except those areas of the the types of equipment permitted in suitable for mine ventilation purposes. primary escapeway developed prior to primary escapeways to areas of the mine As with the existing standard, mine March 30, 1970 where separation of the developed prior to November 16, 1992. development projections do not have to primary escapeway from the belt and The commenter stated that the proposed be altered to provide additional rooms, trolley haulage entries did not exist as regulation would pose great cost to the entries, or crosscuts for the sole purpose of November 16, 1992. For areas of industry with no appreciable safety of providing a passageway to the nearest mines developed after September 15, benefit derived. A review of the fire mine opening. However, the 1992, (those areas covered by the history relative to both stationary and construction of ventilation controls such existing rule) the provisions of mobile equipment indicates that fires as stoppings, overcasts and undercasts, paragraphs (f)(3) through (f)(7) will be can and do occur on this equipment. or the installation of an escape facility effective as of March 11, 1997. For other Mobile equipment by design is intended may be required to provide the most areas covered by the rule, MSHA has to provide flexibility in movement and direct, safe and practical route to the provided for a 1 year phase in period to is capable of operating anywhere in the surface. allow mine operators time to effectively mine. Although the accident reports do One commenter suggested that MSHA plan and implement the necessary not specify whether the mobile should require an escapeway plan to be changes. The phase in period applies to equipment that caught fire was in the approved by the MSHA district manager areas of a primary escapeway developed primary escapeway when the fire to assure the most direct route to the between March 30, 1970 and November started, it is reasonable to conclude that surface. Existing standards require that 16, 1992, and to areas of the primary at least some of these fires did occur in escapeways be shown on the ventilation escapeway developed prior to March 30, the primary escapeway. MSHA map. In addition, as with other 1970 where separation of the belt and continues to believe that given the regulations, inspectors assess whether trolley haulage entries from the primary importance of the primary escapeway to escapeways follow the most direct, safe escapeway existed prior to November the safety of miners, the extension of the and practical route to the surface during 16, 1992. requirements for operation of equipment each regular inspection. Accordingly, Paragraph (f)(3) prohibits certain in the primary escapeway is necessary MSHA does not believe that an equipment from being in the primary and appropriate. additional plan is necessary. escapeway. Paragraphs (f)(4) and (f)(5) Paragraph (f)(3) lists the equipment Existing paragraph (f) establishes the deal with fire protection for mobile that is not permitted in the primary requirements for ventilation of the equipment that is permitted in the escapeway. Under paragraph (f)(3)(i) of primary escapeway and identifies which primary escapeway and paragraph (f)(6) the final rule, operating diesel equipment can be operated in the addresses a specific circumstance when equipment without an automatic fire primary escapeway and the fire mobile equipment may operate in a suppression system is prohibited in the suppression requirements for this primary escapeway without a fire primary escapeway unless it is attended, equipment. The final rule, like the suppression system. Paragraph (f)(7), a except as provided in paragraphs (f)(6) proposal, modifies paragraph (f) to provision added to the proposed and (f)(7). One commenter stated that explicitly identify the equipment that is language in response to comments, attended diesel equipment with a not permitted in the primary escapeway allows the use of designated emergency manual fire suppression system presents and to specify the types of fire vehicles or ambulances in the primary no fire hazard. Another commenter suppression systems that are to be used escapeway. suggested that unattended diesel and the conditions under which each is One commenter suggested that the equipment should be prohibited. When to be used on equipment permitted in final rule should not provide an diesel equipment is operated in the the primary escapeway. This is done by exception for all areas where separation primary escapeway and is properly replacing existing paragraphs (f)(1) and of the primary escapeway from the belt attended and equipped with a manual (f)(2) with paragraphs (f)(1) through and trolley haulage entry does not exist. fire suppression system, the equipment (f)(7) in the final. The commenter recognized, however, operator can immediately respond to a Existing paragraph (f)(1) requires that that Congress granted an exemption fire, and the safety afforded by the one escapeway that is ventilated with from separation requirements for areas existing standard is maintained. If the intake air be designated as the primary of the primary escapeway developed machine is shut off, however, escapeway and prohibits certain prior to March 30, 1970, the effective attendance is not necessary. When equipment from being used in the date of the Act. The intent of the diesel equipment is to be operated primary escapeway in areas developed proposal was to provide an exemption unattended, an automatic system is after November 15, 1992. Further, from the requirements of proposed required to protect against fire. paragraph (f)(1) requires fire paragraphs (f)(3) through (f)(6) for these One commenter stated that suppression systems on mobile same areas. The commenter points out ‘‘attended’’ should be interpreted to equipment that is operated in the that the proposal would have extended mean that the operator is on or within primary escapeway. The final rule the exemption to other areas of the sight of the vehicle. Another commenter transfers the part of existing paragraph primary escapeway where, for one urged that the standard be clarified to (f)(1) that specifies the area of the reason or another, separation did not require that the operator be at the primary escapeway affected to exist on November 16, 1992, the controls of the equipment. For the paragraph (f)(2). effective date of the existing rule. The purposes of § 75.380(f), by ‘‘attended’’ The existing rule limited the final rule modifies the proposal to MSHA means that the equipment installation or use of certain equipment clarify that the exemption only applies operator would be on the mobile 9814 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations equipment or immediately adjacent to cannot be located in the primary Paragraph (f)(4) of the final rule the equipment and be capable of escapeway except: (A) where necessary adopts MSHA’s proposal with one activating the fire suppression system in to maintain the escapeway in safe, change. As proposed, paragraph (f)(4) the event of a fire. travelable condition; and (B) battery would have required the use of fire The existing standard permits chargers and rectifiers and power suppression systems on mobile equipment to be in the escapeway for centers with transformers that are either equipment operated in the primary purposes of transporting miners and dry-type or contain nonflammable escapeway, and would have allowed materials and for maintaining the liquid, provided they are located on or exceptions for continuous miners and as escapeway but does not expressly near a working section and are moved provided in § 75.380 (f)(5) and (f)(6). prohibit the haulage of coal in the as the section advances or retreats. The The final rule adds an additional primary escapeway. As a matter of first exception allows work to be exception for emergency vehicles or clarification, the final rule specifically performed in the primary escapeway to ambulances as provided in prohibits coal haulage in the primary assure its integrity. The second provides § 75.380(f)(7). Unlike the existing escapeway unless incidental to cleanup for the locations of the described standard, the final rule in paragraph and maintenance of the escapeway. One equipment at or near working sections (f)(4) permits certain mobile equipment commenter supported the proposed if the equipment moves with the operated in the primary escapeway to be prohibition of coal haulage noting that section. Equipment at or near working protected with a manual fire coal haulage would provide a ready sections will normally be within a few suppression system instead of an source of fuel to a machinery-initiated crosscuts of the working face. In many automatic system, provided it is fire. Several commenters expressed a cases, particularly with battery chargers, attended by a person trained in the use concern that incidental coal haulage there may be no practical alternative to and operation of the fire suppression associated with cleanup and locating this equipment in the system. MSHA believes that when a maintenance of the primary escapeway escapeway. In addition, § 75.340 piece of equipment is operated in the would be prohibited under the proposed provides additional protection when primary escapeway and is properly standard. Cleanup and maintenance of using underground electrical attended and equipped with a manual the primary escapeway must be equipment. fire suppression system, the equipment permitted. Therefore, the final rule Paragraph (f)(3)(v) of the final rule operator can immediately respond to the modifies the proposal to permit mobile adopts the proposal and prohibits water situation, and the safety afforded by the equipment to haul coal if incidental to existing standard is maintained. cleanup and maintenance of the primary pumps from being in the primary One commenter stated that no escapeway. escapeway except as provided under electrical, battery or diesel equipment, Paragraph (f)(3)(iii) prohibits paragraphs (f)(3)(v)(A) through compressors in the primary escapeway (f)(3)(v)(F). The pumps that are or other equipment such as compressors except as provided in subparagraphs permitted in the primary escapeway are should be allowed in the primary (f)(3)(iii) (A) through (C). Subparagraph the same ones that are excepted from escapeway, except for the purpose of (A) allows compressors necessary to the requirements of § 75.340 due to the maintenance of the escapeway, and that maintain the escapeway in safe, low potential for fire associated with this equipment should have an travelable condition; (B) allows their operation. They include: water appropriate fire suppression system. compressors that are components of pumps necessary to maintain the Because travel in the escapeway in equipment such as locomotives and escapeway in safe, travelable condition; certain mining systems is essential for rock dusting machines; and, (C) allows submersible pumps; permissible pumps safety given the design of the mining compressors of less than five and associated permissible switchgear; system used, the recommendation of the horsepower due to the limited fire pumps located on or near a working commenter has not been adopted in the hazard associated with their operation. section that are moved as the section final rule. Instead, the final rule One commenter described an incident advances or retreats; pumps installed in provides that certain types of mining involving a compressor in an intake anthracite mines; and small portable equipment can be operated in the airway, which was located in a fireproof pumps. While the existing rule refers to primary escapeway provided the safety enclosure but was improperly the electrical equipment described in precautions set out in the standard are ventilated. According to the commenter, § 75.340 (a) and (b)(1), the final rule, followed. One commenter stated that smoke and contaminants spread like the proposal, lists the affected the rule should only apply to mobile throughout the intake entry and reached equipment for the convenience of the equipment which is operated in the the section, which was then evacuated. reader. Like § 75.340, paragraph (f)(3)(v) primary escapeway, since equipment This illustrates the importance of applies to water pumps and emulsion not operating presents little or no providing adequate protection from the pumps when they are located on or near hazard. MSHA agrees and has possible spread of smoke and the working section and are moved as incorporated this clarification into the contaminants associated with the section advances or retreats. One final rule. compressor fires or overheating. commenter agreed that pumps may be Commenters indicated that it is Paragraph (f)(3)(iv) of the final rule necessary to maintain and rehabilitate sometimes necessary to withdraw face adds battery chargers to the equipment the primary escapeway but suggested equipment, such as continuous miners, included in the proposal that is that a time limit be placed on the length roof bolting machines and shuttle cars, permitted in the primary escapeway of time the pump is allowed to remain into the primary escapeway for a short provided they are located on or near a in the escapeway. MSHA believes that distance beyond the loading point. The working section and moved as the specific conditions at the mine will equipment is sometimes parked and left section advances or retreats. In all other govern the amount of time required for there on down shifts or between shifts. respects, paragraph (f)(3)(iv) of the final any necessary pumping. Therefore, MSHA notes that, as clarified, the final rule adopts the proposal. Under MSHA has not included the suggestion rule does not prohibit this practice. paragraph (f)(3)(iv), underground in the final rule since the decision Because the equipment would be transformer stations, battery charging relative to time must be made on a case- attended when operated and is provided stations, substations, and rectifiers by-case basis, as appropriate. with manual fire suppression, the Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9815 equipment may be operated in the activation. Paragraph (ii) provides an suppression system to operate in the primary escapeway. alternative for a class of small, battery primary escapeway if no persons are Following promulgation of the powered, golf cart type, equipment used inby other than persons directly existing rule, some persons construed for transport of persons and small hand engaged in the use or moving of the the requirement for an automatic fire tools. In this case, fire extinguishers equipment. This provision of the final suppression system to apply to electric may be used in lieu of a fire suppression rule allows for the necessary movement face equipment. As explained in the system. of face equipment, such as between preamble to the proposal, this was not Commenters questioned the need for sections. the intent of MSHA. To clarify its intent, automatic systems on the class of One commenter stated that the MSHA issued Program Policy Letter No. equipment consisting of small, battery exemption provided in (f)(6) should be P92–V–4 on November 16, 1992, powered, golf cart type equipment. One expanded to allow equipment that does addressing the operation and location of commenter suggested that a manual fire not have a fire suppression system to be equipment in primary escapeways. suppression system should be accepted. relocated provided monitoring Under existing regulations in Subpart After a review of the issue, MSHA has equipment is utilized for carbon L—Fire Protection, face equipment is concluded that some types of mobile monoxide or smoke and two-way required to be protected by a manual equipment present a very limited fire communication is available to notify fire suppression system. The final rule hazard. In the case of small, battery appropriate persons. The final rule does recognizes and generally conforms with operated, golf cart type, conveyances not adopt this suggestion. During this requirement. Other than for an designed and used for the transport of moves, equipment is often laboring at exception to permit a situation such as personnel and small hand tools, maximum capacity and there can be the movement of continuous mining considering the limited hazard, a several machines operating machines between sections without a trained operator provided with two 10 simultaneously. Under these conditions, continuous water supply, the final rule pound multi-purpose dry chemical fire equipment fires can develop quickly requires that when face machinery, extinguishers is equivalent in protection and the products of combustion would equipped with a manual fire to a fire suppression system. be carried to inby workers by the suppression system, is operated in the Accordingly, as an alternative under ventilating current. By permitting only primary escapeway, it must be attended paragraph (ii), small battery powered, workers who are directly engaged in the by a person trained in the proper golf cart type, equipment may be operation or movement of the function and use of the fire suppression operated in the primary escapeway if equipment, the final rule prevents other system. The continuous mining provided with two 10 pound multi- workers from being exposed to the machine exception recognizes that the purpose dry chemical fire extinguishers. hazards of a fire on the equipment being fire suppression system for the Unlike diesel powered equipment, the moved. Workers operating or engaged in continuous mining machine often relies golf cart type of equipment is shut off moving the equipment will be in a on a water supply that may be when not operating and, therefore, position to quickly identify the hazard impracticable to provide during attendance is not an issue. The 10 and take necessary action. equipment moves. pound units are standard size Another commenter objected to the The final rule requires in paragraph extinguishers and are appropriate for provision stating that fire suppression (f)(4) that with exceptions for the equipment involved. should be required on all equipment in continuous mining machines and as The system used in accordance with the primary escapeway. This suggestion provided in paragraphs (f)(5), (f)(6), and paragraph (i) must be suitable for the has not been adopted in the final rule. (f)(7), each piece of mobile equipment intended application and listed or MSHA does not agree that fire operated in primary escapeways shall: approved by a nationally recognized suppression is needed when no persons (1) be equipped with manually operated independent testing laboratory. The are inby or downstream of the fire suppression systems installed in language was proposed as two equipment being moved. MSHA has compliance with §§ 75.1107–3 through paragraphs but has been combined in concluded that either these machines 75.1107–16 and be attended the final rule under paragraph (i) and an should be equipped with fire continuously; or (2) be equipped with alternative has been added as paragraph suppression, or fire extinguishers as in an automatic fire suppression system (ii). The types of machinery which fall (f)(5)(ii), or no persons should be inby that is capable of both automatic and under paragraph (f)(5) are not required the location where the equipment is manual activation and installed in to meet the additional requirements of being operated except those persons compliance with §§ 75.1107–3 through §§ 75.1107–3 through 75.1107–16. For directly engaged in the operation or 75.1107–16. Fire suppression systems example, it would be impractical and movement of the equipment. which were installed to meet the 1992 would not enhance safety to apply the Another commenter suggested that rule will continue to be accepted. minimum dry chemical poundage the wording of (f)(6) could be read to Under paragraph (f)(5) of the final requirements of § 75.1107–9 to small allow miners to work on a longwall face rule, personnel carriers and small equipment designed and used solely for while equipment not equipped with fire personnel conveyances designed and personnel and small hand tools. suppression is operated anywhere in the used solely for the transportation of During informational meetings, it was primary escapeway. This is not personnel and small hand tools can be suggested that the term ‘‘dry chemical’’ permitted by the standard. By including operated in the primary escapeway if would be more accurate and appropriate the phrase, ‘‘. . . except those persons either of the requirements under than the term ‘‘dry powder’’ used in the directly engaged in using or moving the paragraphs (i) or (ii) are met. This class existing standard. Like the proposal, the equipment’’, the persons affected are of equipment would not include diesel- final rule adopts this language. MSHA only those persons in the immediate powered pickup trucks, for example, received no comments on this proposed vicinity of the machine. With no which would be governed by paragraph revision persons working inby, the use of (f)(4). Paragraph (i) requires a Paragraph (f)(6) of the final rule machinery without a fire suppression multipurpose dry chemical type provides an exception to the general system would not expose persons to the automatic fire suppression system requirement and allows mobile hazard of toxic gases and fumes from a capable of both manual and automatic equipment not provided with a fire fire on the equipment. The language 9816 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations also would not permit persons to difficult for passage of injured persons One commenter stated that operate mobile equipment without a fire under cold and icy conditions if escapeways should not be permitted to suppression system in the primary mechanical escape facilities were not pass an opening to be routed to a more escapeway while miners are provided. In light of this concern, distant opening. Another commenter downstream working on a longwall face. MSHA proposed to require that stated that the nearest mine opening The controlling factor is whether the mechanical escape facilities be provided may not always be the safest due to roof persons inby are directly engaged in and maintained from the coal seam to conditions or other factors. MSHA using or moving that particular piece of the surface for each slope that is part of acknowledges that the nearest mine equipment. If they are, and no one else a designated escapeway and is inclined opening may not always be the safest is inby, the equipment may be operated more than 9 degrees from the horizontal. route to the surface. A number of factors without a fire suppression system. For The final rule adopts the proposal. affect whether or not the safest, most example, when moving a longwall One commenter objected to proposed direct, practical route has been selected. shield, no one would be permitted to be paragraph (i)(2) indicating that facilities These factors include roof conditions, inby the machine being used to move are unnecessary in low angle slopes travel height, fan location, physical the shield if the machine is not which are of short length. Other dimensions of the mine opening, and provided with a fire suppression system commenters believed that the 1992 similar considerations. For example, if except those persons moving the shield. standard was appropriate. Another bad roof conditions are present along This would include miners operating commenter indicated support for the the shortest direct route and those roof other pieces of equipment to move other proposal as a way to enable persons to conditions are beyond reasonable shields. escape quickly in an emergency. This control, then an alternate ‘‘safe’’ route Paragraph (f)(7) modifies the existing commenter also noted that escape can designated by the mine operator may be rule to include a new exemption to the be very difficult in icy winter conditions appropriate. However, the presence of requirement that mobile equipment in some slopes. After consideration of roof falls does not necessarily indicate operated in primary escapeways have a the comments received, MSHA that the passageway would not be fire suppression system. Paragraph (f)(7) concludes that the proposal was suitable for evacuation if it is reasonable permits mobile equipment designated appropriate and the final rule adopts to rehabilitate the area. By way of and used only as emergency vehicles or this aspect of the proposal. another example, where coal seam ambulances to operate in the primary One commenter suggested that thickness varies to the extreme, the escapeway without fire suppression proposed paragraph (i)(2) could be shortest route may be through lower systems. It was suggested to MSHA that interpreted as requiring mechanical coal, making travel relatively slow and certain types of emergency equipment, escape facilities for slopes that occur difficult. An alternate route through a such as diesel powered ambulances, naturally underground. It was not high passageway may permit easier should be exempt from the requirements MSHA’s intent to apply paragraph (i)(2) travel. Such an alternate route, although for fire suppression systems. Comments to slopes other than from the coal seam longer, may be more practical and were received suggesting that to the surface. The final rule clarifies therefore may be more appropriate. ambulances should be exempt because this and requires that mechanical escape Similarly, there can be instances where space is extremely limited on these facilities be provided for each slope the ‘‘nearest mine opening’’ may not be vehicles and because they are used from the coal seam to the surface that is suitable for safe evacuation of miners. infrequently. MSHA recognizes the part of a designated escapeway and is For example, an old mine shaft may not potential benefit in the use of this type inclined more than 9 degrees from the be safe for travel because of badly of equipment. Another commenter horizontal. deteriorated conditions, such as a objected, foreseeing potential abuses of Like the proposal, the final rule in deteriorated shaft lining or deteriorated the exemption by mine operators who paragraph(d)(5) revises the existing timbers, even though the shaft is still would designate equipment as language dealing with the location of suitable for mine ventilation purposes. ambulances but use it as ordinary escapeways. It provides that escapes As with the existing standard, mine equipment. The final rule permits shall be located to follow the most development projections do not have to emergency vehicles to be operated in direct, safe and practical route to the be altered to provide additional rooms, the primary escapeway without fire nearest mine opening suitable for the entries, or crosscuts for the sole purpose suppression systems only when this safe evacuation of miners. A question of providing a passageway to the nearest equipment is used for medical arose during an informational meeting mine opening. However, the emergencies. as to whether MSHA intended that the construction of ventilation controls such This existing rule requires in existing rule eliminate the requirement as stoppings, overcasts and undercasts, paragraph (i)(2) that mechanical escape that escapeways be routed to the or the installation of an escape facility facilities be provided and maintained ‘‘nearest mine opening.’’ It was not may be required to provide the most for, ‘‘. . . each slope that is part of a MSHA’s intent to change this direct, safe and practical route to the designated escapeway that is either requirement from the previous standard. surface. inclined 18 degrees or more from the The existing requirement that the One commenter suggested that MSHA horizontal or is inclined 9 degrees or escapeway follow the most direct route should require an escapeway plan to be more from the horizontal and is greater to the surface would, in fact, require the approved by the MSHA district manager than 1,000 feet in length.’’ During route to go to the nearest mine opening. to assure the most direct route to the informational meetings, MSHA became However, to eliminate any confusion surface. Existing standards require that aware of a concern that existing that may exist, the final rule revises escapeways be shown on the ventilation paragraph (i)(2) would permit slopes of paragraph (d)(5) and adopts language map. In addition, as with other significant length and inclination to similar to that in previous regulation, regulations, inspectors assess whether exist without any mechanical escape § 75.1704–2(a), that is, that the escapeways follow the most direct, safe facilities. An example would be a slope escapeway must follow the most direct, and practical route to the surface during of 900 feet inclined less than 18 degrees safe and practical route to the nearest each regular inspection. Accordingly, from the horizontal. It was suggested mine opening suitable for the safe MSHA does not believe that an that such a slope could be particularly evacuation of miners. additional plan is necessary. Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9817

Existing paragraph (f) establishes the protection for mobile equipment that is escapeway. Under paragraph(f)(3)(i) of requirements for ventilation of the permitted in the primary escapeway and the final rule, operating diesel primary escapeway and identifies which paragraph (f)(6) addresses a specific equipment without an automatic fire equipment can be operated in the circumstance when mobile equipment suppression system is prohibited in the primary escapeway and the fire may operate in a primary escapeway primary escapeway unless it is attended, suppression requirements for this without a fire suppression system. except as provided in paragraphs (f)(6) equipment. The final rule, like the Paragraph (f)(7), a provision added to and (f)(7). One commenter stated that proposal, modifies paragraph (f) to the proposed language in response to attended diesel equipment with a explicitly identify the equipment that is comments, allows the use of designated manual fire suppression system presents not permitted in the primary escapeway emergency vehicles or ambulances in no fire hazard. Another commenter and to specify the types of fire the primary escapeway. suggested that unattended diesel suppression systems that are to be used One commenter suggested that the equipment should be prohibited. When and the conditions under which each is final rule should not provide an diesel equipment is operated in the to be used on equipment permitted in exception for all areas where separation primary escapeway and is properly the primary escapeway. This is done by of the primary escapeway from the belt attended and equipped with a manual replacing existing paragraphs (f)(1) and and trolley haulage entry does not exist. fire suppression system, the equipment (f)(2) with paragraphs (f)(1) through The commenter recognized, however, operator can immediately respond to a (f)(7) in the final. that Congress granted an exemption fire, and the safety afforded by the Existing paragraph (f)(1) requires that from separation requirements for areas existing standard is maintained. If the one escapeway that is ventilated with of the primary escapeway developed machine is shut off, however, intake air be designated as the primary prior to March 30, 1970, the effective attendance is not necessary. When escapeway and prohibits certain date of the Act. The intent of the diesel equipment is to be operated equipment from being used in the proposal was to provide an exemption unattended, an automatic system is primary escapeway in areas developed from the requirements of proposed required to protect against fire. after November 15, 1992. Further, paragraphs (f)(3) through (f)(6) for these One commenter stated that paragraph (f)(1) requires fire same areas. The commenter points out ‘‘attended’’ should be interpreted to suppression systems on mobile that the proposal would have extended mean that the operator is on or within equipment that is operated in the the exemption to other areas of the sight of the vehicle. Another commenter primary escapeway. The final rule primary escapeway where, for one urged that the standard be clarified to transfers the part of existing paragraph reason or another, separation did not require that the operator be at the (f)(1) that specifies the area of the exist on November 16, 1992, the controls of the equipment. For the primary escapeway affected to effective date of the existing rule. The purposes of § 75.380(f), by ‘‘attended’’ paragraph (f)(2). final rule modifies the proposal to MSHA means that the equipment The existing rule limited the clarify that the exemption only applies operator would be on the mobile installation or use of certain equipment to those areas of the escapeway that equipment or immediately adjacent to in areas of the primary escapeway were developed prior to March 30, 1970 the equipment and be capable of developed after November 15, 1992. and where separation did not exist on activating the fire suppression system Paragraph (f)(2) of the final rule November 16, 1992. immediately in the event of a fire. modifies the existing rule for clarity and Another commenter correctly The existing standard permits expands the application of certain interpreted proposed paragraph (f)(2) as equipment to be in the escapeway for requirements contained in paragraphs extending the requirement that limits purposes of transporting miners and (f)(3) through (f)(7) to the entire primary the types of equipment permitted in materials and for maintaining the escapeway except those areas of the primary escapeways to areas of the mine escapeway but does not expressly primary escapeway developed prior to developed prior to November 16, 1992. prohibit the haulage of coal in the March 30, 1970 where separation of the The commenter stated that the proposed primary escapeway. As a matter of primary escapeway from the belt and regulation would pose great cost to the clarification, the final rule specifically trolley haulage entries did not exist as industry with no appreciable safety prohibits coal haulage in the primary of November 16, 1992. For areas of benefit derived. A review of the fire escapeway unless incidental to cleanup mines developed after September 15, history relative to both stationary and and maintenance of the escapeway. One 1992, (those areas covered by the mobile equipment indicates that fires commenter supported the proposed existing rule) the provisions of can and do occur on this equipment. prohibition of coal haulage noting that paragraphs (f)(3) through (f)(7) will be Mobile equipment by design is intended coal haulage would provide a ready effective as of March 11, 1997. For other to provide flexibility in movement and source of fuel to a machinery-initiated areas covered by the rule, MSHA has is capable of operating anywhere in the fire. Several commenters expressed a provided for a 1 year phase in period to mine. Although the accident reports do concern that incidental coal haulage allow mine operators time to effectively not specify whether the mobile associated with cleanup and plan and implement the necessary equipment that caught fire was in the maintenance of the primary escapeway changes. The phase in period applies to primary escapeway when the fire would be prohibited under the proposed areas of a primary escapeway developed started, it is reasonable to conclude that standard. Cleanup and maintenance of between March 30, 1970 and November at least some of these fires did occur in the primary escapeway must be 16, 1992, and to areas of the primary the primary escapeway. MSHA permitted. Therefore, the final rule escapeway developed prior to March 30, continues to believe that given the modifies the proposal to permit mobile 1970 where separation of the belt and importance of the primary escapeway to equipment to haul coal if incidental to trolley haulage entries from the primary the safety of miners, the extension of the cleanup and maintenance of the primary escapeway existed prior to November requirements for operation of equipment escapeway. 16, 1992. in the primary escapeway is Paragraph (f)(3)(iii) prohibits Paragraph (f)(3) prohibits certain appropriate. compressors in the primary escapeway equipment from the primary escapeway. Paragraph (f)(3) lists the equipment except as provided in subparagraphs Paragraphs (f)(4) and (f)(5) deal with fire that is not permitted in the primary (f)(3)(iii) (A) through (C). Subparagraph 9818 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations

(A) allows compressors necessary to low potential for fire associated with appropriate fire suppression system. maintain the escapeway in safe, their operation. They include: water Because travel in the escapeway in travelable condition; (B) allows pumps necessary to maintain the certain mining systems is essential for compressors that are components of escapeway in safe, travelable condition; safety given the design of the mining equipment such as locomotives and submersible pumps; permissible pumps system used, the recommendation of the rock dusting machines; and, (C) allows and associated permissible switchgear; commenter has not been adopted in the compressors of less than five pumps located on or near a working final rule. Instead, the final rule horsepower due to the limited fire section that are moved as the section provides that certain types of mining hazard associated with their operation. advances or retreats; pumps installed in equipment can be operated in the One commenter described an incident anthracite mines; and small portable primary escapeway provided the safety involving a compressor in an intake pumps. While the existing rule refers to precautions set out in the standard are airway, which was located in a fireproof the electrical equipment described in followed. One commenter stated that enclosure but was improperly § 75.340 (a) and (b)(1), the final rule, the rule should only apply to mobile ventilated. According to the commenter, like the proposal, lists the affected equipment which is operated in the smoke and contaminants spread equipment for the convenience of the primary escapeway, since equipment throughout the intake entry and reached reader. Like § 75.340, paragraph (f)(3)(v) not operating presents little or no the section, which was then evacuated. applies to water pumps and emulsion hazard. MSHA agrees and has This illustrates the importance of pumps when they are located on or near incorporated this clarification into the providing adequate protection from the the working section and are moved as final rule. possible spread of smoke and the section advances or retreats. One Commenters indicated that it is contaminants associated with commenter agreed that pumps may be sometimes necessary to withdraw face compressor fires or overheating. necessary to maintain and rehabilitate equipment, such as continuous miners, Paragraph (f)(3)(iv) of the final rule the primary escapeway but suggested roof bolting machines and shuttle cars, adds battery chargers to the equipment that a time limit be placed on the length into the primary escapeway for a short included in the proposal that is of time the pump is allowed to remain distance beyond the loading point. The permitted in the primary escapeway in the escapeway. MSHA believes that equipment is sometimes parked and left provided it is located on or near a specific conditions at the mine will there on down shifts or between shifts. working section and is moved as the govern the amount of time required for MSHA notes that, as clarified, the final section advances or retreats. In all other any necessary pumping. Therefore, rule does not prohibit this practice. respects, paragraph (f)(3)(iv) of the final MSHA has not included the suggestion Because the equipment would be rule adopts the proposal. Under in the final rule since the decision attended when operated and is provided paragraph (f)(3)(iv), underground relative to time must be made on a case- transformer stations, battery charging with manual fire suppression, the by-case basis, as appropriate. equipment may be operated in the stations, substations, and rectifiers Paragraph (f)(4) of the final rule primary escapeway. cannot be located in the primary adopts MSHA’s proposal with one escapeway except: (A) where necessary change. As proposed, paragraph (f)(4) Following promulgation of the to maintain the escapeway in safe, would have required the use of fire existing rule, some persons construed travelable condition; and (B) battery suppression systems on mobile the requirement for an automatic fire chargers and rectifiers and power equipment operated in the primary suppression system to apply to electric centers with transformers that are either escapeway, and would have allowed face equipment. As explained in the dry-type or contain nonflammable exceptions for continuous miners and as preamble to the proposal, this was not liquid, provided they are located on or provided in § 75.380(f)(5)and (f)(6). The the intent of MSHA. To clarify its intent, near a working section and are moved final rule adds an additional exception MSHA issued Program Policy Letter No. as the section advances or retreats. The for emergency vehicles or ambulances P92–V–4 on November 16, 1992, first exception allows work to be as provided in § 75.380(f)(7). Unlike the addressing the operation and location of performed in the primary escapeway to existing standard, the final rule in equipment in primary escapeways. assure its integrity. The second provides paragraph (f)(4) permits certain mobile Under existing regulations in Subpart for the locations of the described equipment operated in the primary L—Fire Protection, face equipment is equipment at or near working sections escapeway to be protected with a required to be protected by a manual if the equipment moves with the manual fire suppression system instead fire suppression system. The final rule section. Equipment at or near working of an automatic system, provided it is recognizes and generally conforms with sections will normally be within a few continuously attended by a person this requirement. Other than for an crosscuts of the working face. In many trained in the use and operation of the exception to permit a situation such as cases, particularly with battery chargers, fire suppression system. MSHA believes the movement of continuous mining there may be no practical alternative to that when a piece of equipment is machines between sections without a locating this equipment in the operated in the primary escapeway and continuous water supply, the final rule escapeway. In addition, § 75.340 is properly attended and equipped with requires that when face machinery, provides additional protection when a manual fire suppression system, the equipped with a manual fire using underground electrical equipment operator can immediately suppression system, is operated in the equipment. respond to the situation, and the safety primary escapeway, it must be attended Paragraph (f)(3)(v) of the final rule afforded by the existing standard is by a person trained in the proper adopts the proposal and prohibits water maintained. function and use of the fire suppression pumps from being in the primary One commenter stated that no system. The continuous mining escapeway except as provided under electrical, battery or diesel equipment, machine exception recognizes that the paragraphs (f)(3)(v)(A) through or other equipment such as compressors fire suppression system for the (f)(3)(v)(F). The pumps that are should be allowed in the primary continuous mining machine often relies permitted in the primary escapeway are escapeway, except for the purpose of on a water supply that may be the same ones that are excepted from maintenance of the escapeway, and that impracticable to provide during the requirements of § 75.340 due to the this equipment should have an equipment moves. Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9819

The final rule requires in paragraph independent testing laboratory. The are inby or downstream of the (f)(4) that with exceptions for language was proposed as two equipment being moved. MSHA has continuous mining machines and as paragraphs but has been combined in concluded that either these machines provided in paragraphs (f)(5), (f)(6), and the final rule under paragraph (i) and an should be equipped with fire (f)(7), each piece of mobile equipment alternative has been added as paragraph suppression, or fire extinguishers as in operated in primary escapeways shall: (ii). The types of machinery which fall (f)(5)(ii), or no persons should be inby (1) be equipped with manually operated under paragraph (f)(5) are not required the location where the equipment is fire suppression systems installed in to meet the additional requirements of being operated except those persons compliance with §§ 75.1107–3 through §§ 75.1107–3 through 75.1107–16. For directly engaged in the operation or 75.1107–16 and be attended example, it would be impractical and movement of the equipment. continuously; or (2) be equipped with would not enhance safety to apply the Another commenter suggested that an automatic fire suppression system minimum dry chemical poundage the wording of (f)(6) could be read to that is capable of both automatic and requirements of § 75.1107–9 to small allow miners to work on a longwall face manual activation and installed in equipment designed and used solely for while equipment not equipped with fire compliance with §§ 75.1107–3 through personnel and small hand tools. suppression is operated anywhere in the 75.1107–16. During informational meetings, it was primary escapeway. This is not Under paragraph (f)(5) of the final suggested that the term ‘‘dry chemical’’ permitted by the standard. By including rule, personnel carriers and small would be more accurate and appropriate the phrase, ‘‘* * * except those persons personnel conveyances designed and than the term ‘‘dry powder’’ used in the directly engaged in using or moving the used solely for the transportation of existing standard. Like the proposal, the equipment’’, the persons affected are personnel and small hand tools can be final rule adopts this language. MSHA only those persons in the immediate operated in the primary escapeway if received no comments on this proposed vicinity of the machine. With no either of the requirements under revision. persons working inby, the use of paragraphs (i) or (ii) are met. Paragraph Paragraph (f)(6) of the final rule machinery without a fire suppression (i) requires a multipurpose dry chemical provides an exception to the general system would not expose persons to the type automatic fire suppression system requirement and allows mobile hazard of toxic gases and fumes from a capable of both manual and automatic equipment not provided with a fire fire on the equipment. The language activation. Paragraph (ii) provides an suppression system to operate in the also would not permit persons to alternative for a class of small, battery primary escapeway if no persons are operate mobile equipment without a fire powered, golf cart type, equipment used inby other than persons directly suppression system in the primary for transport of persons and small hand engaged in the use or moving of the escapeway while miners are tools. In this case, fire extinguishers equipment. This provision of the final downstream working on a longwall face. may be used in lieu of a fire suppression rule allows for the necessary movement The controlling factor is whether the system. of face equipment, such as between persons inby are directly engaged in Commenters questioned the need for sections. using or moving that particular piece of automatic systems on the class of One commenter stated that the equipment. If they are, and no one else equipment consisting of small, battery exemption provided in (f)(6) should be is inby, the equipment may be operated powered, golf cart type equipment. One expanded to allow equipment that does without a fire suppression system. For commenter suggested that a manual fire not have a fire suppression system to be example, when moving a longwall suppression system should be accepted. relocated provided monitoring shield, no one would be permitted to be After a review of the issue, MSHA has equipment is utilized for carbon inby the machine being used to move concluded that some types of mobile monoxide or smoke and two-way the shield if the machine is not equipment present a very limited fire communication is available to notify provided with a fire suppression system hazard. In the case of small, battery appropriate persons. The final rule does except those persons moving the shield. operated, golf cart type, conveyances not adopt this suggestion. During This would include miners operating designed and used for the transport of moves, equipment is often laboring at other pieces of equipment to move other personnel and small hand tools, maximum capacity and there can be shields. considering the limited hazard, a several machines operating Paragraph (f)(7) modifies the existing trained operator provided with two 10 simultaneously. Under these conditions, rule to include a new exemption to the pound multi-purpose dry chemical fire equipment fires can develop quickly requirement that mobile equipment extinguishers is equivalent in protection and the products of combustion would operated in primary escapeways have a to a fire suppression system. be carried to inby workers by the fire suppression system. Paragraph (f)(7) Accordingly, as an alternative under ventilating current. By permitting only permits mobile equipment designated paragraph (ii), small battery powered, workers who are directly engaged in the and used only as emergency vehicles or golf cart type, equipment may be operation or movement of the ambulances to operate in the primary operated in the primary escapeway if equipment, the final rule prevents other escapeway without fire suppression provided with two 10 pound multi- workers from being exposed to the systems. It was suggested to MSHA that purpose dry chemical fire extinguishers. hazards of a fire on the equipment being certain types of emergency equipment, Unlike diesel powered equipment, the moved. Workers operating or engaged in such as diesel powered ambulances, golf cart type of equipment is shut off moving the equipment will be in a should be exempt from the requirements when not operating and, therefore, position to quickly identify the hazard for fire suppression systems. Comments attendance is not an issue. The 10 and take necessary action. were received suggesting that pound units are standard size Another commenter objected to the ambulances should be exempt because extinguishers and are appropriate for provision stating that fire suppression space is extremely limited on these the equipment involved. should be required on all equipment in vehicles and because they are used The system used in accordance with the primary escapeway. This suggestion infrequently. MSHA recognizes the paragraph (i) must be suitable for the has not been adopted in the final rule. potential benefit in the use of this type intended application and listed or MSHA does not agree that fire of equipment. Another commenter approved by a nationally recognized suppression is needed when no persons objected, foreseeing potential abuses of 9820 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations the exemption by mine operators who Section 75.382 Mechanical Escape facilities to cover more than one mine would designate equipment as Facilities if the mines are located in close ambulances but use it as ordinary Because an escapeway route can proximity. The commenter believed that equipment. The final rule permits sometimes be very long, the most safe, such an arrangement was not emergency vehicles to be operated in direct and practical route to the surface considered in the countersigning the primary escapeway without fire can sometimes involve the use of a provisions of the proposal and stated, suppression systems only when this mechanical escape device such as an ‘‘The effort required to go to each mine equipment is used only for medical automatic elevator or similar, but less every week and track down the mine emergencies. sophisticated, device. Section 75.382 foreman would be burdensome and This existing rule requires in contains the requirements for unnecessary.’’ Paragraph (c) of the existing rule requires a weekly paragraph (i)(2) that mechanical escape mechanical escape facilities installed in examination and a weekly test in which facilities be provided and maintained escapeways under § 75.380 and the hoist must be run through one for, ‘‘. . . each slope that is part of a § 75.381. The final rule contains a new complete cycle of operation to designated escapeway that is either requirement for certification of escape determine that it is operating properly. inclined 18 degrees or more from the facility examinations, proposed as The final rule requires certification to be horizontal or is inclined 9 degrees or paragraph (g). The final rule does not completed by the examiner. As more from the horizontal and is greater retain the other proposed changes, indicated above, MSHA has concluded than 1,000 feet in length.’’ During paragraphs (h) and (i), that would have that certification will achieve the informational meetings, MSHA became added recordkeeping and intended objective of assuring that the aware of a concern that existing countersigning requirements. paragraph (i)(2) would permit slopes of examinations have been conducted. Under paragraph (g) of the final rule, Additional comments were received significant length and inclination to the designated examiner certifies by exist without any mechanical escape recommending further modifications date, time, and initials that the and additions to § 75.382. For example, facilities. An example would be a slope mechanical escape facilities of 900 feet inclined less than 18 degrees a commenter recommended 2-way examination required by paragraph communication capability, with from the horizontal. It was suggested § 75.382(c) was performed. The that such a slope could be particularly supplies and a holding area at the certification must be located at or near escape facility. These types of difficult for passage of injured persons the facility examined. Certification has under cold and icy conditions if comments related to issues outside the long been an accepted practice in the scope of the rulemaking and were not mechanical escape facilities were not mining industry for assuring that a provided. In light of this concern, addressed. Another commenter would required examination has been have MSHA reinstate language from an MSHA proposed to require that completed. One commenter agreed that earlier rule, alleging a reduction in mechanical escape facilities be provided certification is necessary and supported protection. MSHA does not believe that and maintained from the coal seam to the revision. The commenter indicated there is a reduction in protection. Also, the surface for each slope that is part of that the facilities are often designated as the final rule did not propose to change a designated escapeway and is inclined escapeways and therefore there should the existing requirement that the more than 9 degrees from the horizontal. be some assurance that the facilities commenter claimed reduced protection, The final rule adopts the proposal. have been examined and are ready for i.e., that a person trained to operate the One commenter objected to proposed use. Also, in the case of mechanical mechanical escape facility always shall paragraph (i)(2) indicating that facilities escape facilities, if certification is not be available. MSHA notes that this issue are unnecessary in low angle slopes provided, precious time could be lost as is outside the scope of the rulemaking. which are of short length. Other the escape facility is tested prior to use commenters believed that the 1992 to determine if it is functional and safe. Section 75.383 Escapeway Maps and standard was appropriate. Another Under the proposed paragraphs (h) Drills commenter indicated support for the and (i), a record would have had to be When a fire, explosion or other proposal as a way to enable persons to made of the examination of the escape emergency necessitates an immediate escape quickly in an emergency. This facility performed in accordance with evacuation of a mine the designated commenter also noted that escape can § 75.382 (c). The results of the route for miners to leave the mine is the be very difficult in icy winter conditions examination would be included in a escapeway. During a mine fire, in some slopes. After consideration of record, including any deficiency found passageways, even those designated as the comments received, MSHA along with the corrective actions taken escapeways, can become smoke filled concludes that the proposal was to correct the condition. One commenter and the ability to see can be drastically appropriate and the final rule adopts supported the revision requiring records reduced. Therefore, it is vitally this aspect of the proposal. of deficiencies found during important that miners know the route of One commenter suggested that examinations as well as a record of travel through the escapeway. Section proposed paragraph (i)(2) could be corrective actions. Other commenters 75.383 provides for the posting of interpreted as requiring mechanical objected to additional records, noting escapeway maps so that they are escape facilities for slopes that occur that they would not enhance safety. available for miners to study and use naturally underground. It was not After review of the comments, MSHA during an emergency, if necessary. MSHA’s intent to apply paragraph (i)(2) has concluded that certification will Section 75.383 also provides for miners to slopes other than from the coal seam achieve the intended objective of to be trained in the escape route through to the surface. The final rule clarifies assuring the safety of mechanical escapeway drills. Escapeway drills in this and requires that mechanical escape escape. Accordingly, the recordkeeping mines are similar to fire drills in schools facilities be provided for each slope requirements proposed as paragraphs and high rise buildings. from the coal seam to the surface that is (h) and (i) are omitted from the final Existing paragraphs (a) and (b)(1) of part of a designated escapeway and is rule. § 75.383 deal with the escapeway map inclined more than 9 degrees from the One commenter stated that many and drill requirements in areas where horizontal. companies utilize mobile escape mechanized mining equipment is being Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9821 installed or removed. Based on immediately notified of the change. This commenter pointed out, it is essential comments received, the final rule will assure that all affected miners are that each miner be familiar with the contains 2 revisions to the proposal. The aware of the change from the time the escapeways. MSHA concludes that a first allows the mine map to be readily change is implemented. number of accommodations can be accessible as an alternative to posting. While agreeing that each miner’s made to provide assistance to any miner The second requires that miners who familiarity with escapeways is experiencing difficulty during drills. As are underground when any change is important, one commenter stated that discussed above, mobile equipment may made to the escapeway map be requiring travel by foot in the be used provided that the conveyance is immediately notified of the change. escapeways could cause undue physical not so enclosed that miners cannot These revisions to the proposal are stress to some miners in low or steeply observe the route. Operators can allow discussed below. pitching seams. The commenter additional time for miners who may One commenter supported the continued that the desired result could encounter difficulty. Also, assistance requirements of (a) and (b)(1) noting the be obtained by requiring full can be provided by other miners, hazards and activities where participation in drills where particularly in difficult areas such as mechanized mining equipment is being transportation is provided and full unusually steep grades. Such assistance installed or removed. Another participation in drills where would likely also be needed in an actual commenter stated that the requirement transportation is not provided, unless emergency and therefore the drills that the map be ‘‘posted’’ is impractical that escapeway is equipped with a would be particularly instructive to all in some mines. The commenter stated continuous, directional life line. MSHA the miners participating in the drills. that the rule should simply require that notes that the standard does not require MSHA believes that for areas where the map be maintained on the section to travel on foot. Transportation may be mechanized mining equipment is being allow the map to be maintained in a used for escapeway drills provided that installed or removed, providing map tube, or be covered. The the purpose of the standard can be escapeways and posting maps commenter also indicated that a map achieved. That purpose is to assure that identifying these escapeways and tube could aid miners in a rapid escape miners are familiar with the escapeway conducting the drills specified in the since the map and tube could easily be routes and, as specified in (b)(4), before standard are essential to maintain taken with the miners during the or during practice escapeway drills, safety. These requirements help to escape. MSHA agrees that the miners shall be informed of the assure that miners are familiar with maintenance of a posted map could be locations of fire doors, check curtains, escape routes so that should urgent difficult in some conditions such as in changes in the routes of travel, and escape become necessary, they can wet or very low height mines. plans for diverting smoke from reach the surface as quickly as possible. Accordingly, the final rule provides an escapeways. Traveling an escapeway in Section 75.384 Longwall and option wherein the map may be either a completely enclosed mantrip, such Shortwall Travelways posted or be maintained in a location that the route could not be observed, readily accessible to all miners. In would not meet the requirement. As to Modern mining methods include specifying ‘‘readily accessible’’ MSHA the concept of exempting drills in the removing large blocks of coal in one intends that all miners be made aware alternate escapeway where mechanized continuous operation along a wall of the map location and have access to transportation is unavailable if a which can be several hundred feet long. review the map at any time. As an directional lifeline exists, MSHA This method is known as longwall or example, a map secured in a locked tool believes that certain minimum shortwall mining. To avoid trapping chest would not be acceptable. specifications for lifelines would be miners in the face area without a means One commenter objected to paragraph needed before such a compliance of escape in the event of an emergency, (a) in two respects. First, according to alternative could be considered. This there is a need to have a travelway on the commenter, the standard does not would expand the scope of this the side of the block of coal opposite the require maps to show the revised rulemaking beyond the proposal. escapeways. Section 75.384 addresses escapeway routes until the end of the One commenter suggested an the requirements for a travelway on the shift on which the changes are made. expansion of 75.383 to require: tailgate side of a longwall or shortwall, The commenter believes that changes directional life lines in both the location and marking of the are projected in advance and therefore escapeways; communications in both travelway, and procedures to follow the maps should be updated escapeways; numbering of all stoppings during a blockage of the travelway. immediately. Second, the commenter along escapeways; additional SCSR MSHA proposed no changes to the indicated that the requirement that caches; hard hat stickers depicting existing rule. Likewise, the final rule miners must be informed of the changes escapeways and SCSR donning makes no changes to the existing rule. before entering the mine does not procedures; and other measures. While The preamble to the proposal explained address affected miners already many of the suggestions may have merit, that MSHA had received comment underground. Many changes within they are outside the scope of this suggesting that the existing rule be escapeways are not known or planned rulemaking. modified to provide for additional well in advance. Often, such revisions In the proposal, MSHA solicited involvement by miners when a roof fall are in response to changing conditions comments on a concept to allow or other blockage occurs that prevents underground. MSHA does not believe individual miners to opt out of travel in the tailgate travelway. MSHA that allowing a portion of one shift is an escapeway drills for health reasons. One believes that the existing procedures excessive amount of time to update the commenter indicated that a number of and regulations appropriately address maps. MSHA does agree, however, that additional requirements would be the hazards and provide a sufficient changes to the escapeways should be needed to assure that any miners opting opportunity for input and involvement immediately brought to the attention of out would still remain familiar with the for all interested parties. The preamble all miners who are underground at the escapeways. After considering the to the proposal contains a discussion of time of a change. Accordingly, the final comments received, MSHA has not the existing procedures and regulations. rule specifies that all affected miners included an option for miners to opt out One commenter recommended several already underground must be of the escapeway drills. As one additions to existing § 75.384 while 9822 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations agreeing that maintenance of a tailgate drilling. MSHA’s experience is that pattern if the district manager can be travelway is essential. The working places are seldom developed at satisfied that the alternative is suitable recommendations included requiring the same rate and some may lag by to the particular circumstances. the tailgate travelway to be ventilated by significant distances. In addition, entry Another comment suggested that the intake air. The commenter noted that or room centers are ordinarily in excess minimum distances which trigger several mines presently ventilate in this of the 20 foot drill hole depth specified drilling as specified in § 75.388 (a)(1), manner, providing intake air splits at in the standard. Thus, coverage over the (a)(2), and (a)(3) be revised to 100, 500, both headgate and tailgate. While this entire width of the advancing section is and 500 feet, respectively. In support of system has certain advantages, it is not not always provided as suggested by the the suggestion, the commenter noted feasible or practical in all cases. commenter. Another example would be factors such as inaccurate old mine where an advance heading approaches maps, unmapped mining over-boundary Section 75.388 Boreholes in Advance an inaccurately mapped abandoned or outside the legal limits, lost maps or of Mining. mine such that the unknown workings unknown mines, and less than diligent Areas of a mine, or of an adjacent are approached near the undrilled research by some operators. The mine, can be located in close proximity ribline. An inundation could occur at minimum drilling distances in to an advancing working place but can the undrilled ribline as the working paragraph (a) were not proposed for be inaccessible for a variety of reasons. place advanced. To address these revision and the final rule does not These inaccessible areas of a mine can hazards, the final rule requires drilling address them. However, it is important present hazards when mining proceeds of both ribs. If the workings were not to note that the distances specified are inadvertently or improperly into these discovered through drilling, multiple the minimum at which drilling must areas. Inaccessible areas may contain fatalities could result from inundations begin if there is reasonable confidence potentially dangerous accumulations of of water, methane, or oxygen deficient in the position of the old workings. The gases or water, which could result in atmosphere (black damp). Accidents distances specified provide a safety explosions or inundations. To protect similar to this scenario have occurred factor to account for slight mining against these hazards, § 75.388 requires and resulted in inundations of water, overruns, mapping errors, small operators to drill boreholes into the coal methane, or irrespirable atmospheres. deliberate omissions, and similar factors before they extract it. In this manner, One commenter noted that 38 in cases where the position of the old the operator can determine whether inundations of gases or water occurred workings are known with reasonable mining, if continued, will penetrate an between 1990 and 1994. MSHA notes certainty. In cases where old workings area where unknown hazards may be that this number represents only those are known to exist but the position is present. Boreholes are not required accidental cut-throughs which resulted unknown or known with little when the area toward which mining is in inundations. It should be noted that confidence, drilling would be necessary advancing is accessible and is properly numerous additional accidental cut- in excess of the minimum distances examined. throughs have occurred which did not specified in (a) to assure compliance The final rule revises requirements for result in inundations. Each of these with the standard. the drilling of boreholes in advance of additional accidental cut-throughs Section 75.389 Mining into mining. It requires boreholes to be demonstrates the potential for a serious Inaccessible Areas drilled in both ribs of advancing or fatal accident. The commenter stated working places unless an alternative that the number of inundations and the While § 75.388 addresses the need to drilling plan is approved by the district potential for multiple fatalities warrant identify inaccessible areas to avoid manager in accordance with existing a revision to the standard to require accidentally drilling into an area paragraph (g) of this section. Existing both ribs to be drilled. Similar containing a possible hazardous paragraph (c) requires that boreholes be comments and examples were heard environment, § 75.389 establishes drilled in at least one rib of advancing during the public hearings. MSHA procedures for drilling into an working places described in § 75.388 (a). agrees. inaccessible area that has been Although MSHA did not intend any MSHA concludes that in general, both identified. Section 75.389 requires a change in promulgating the existing ribs should be drilled; however, under separate plan be developed and language, comments indicated that some some circumstances drilling of both ribs approved for drilling into inaccessible confusion existed. To address this issue, may be unnecessary. Moreover, MSHA areas. Paragraph (c) of the final rule MSHA proposed to revise the existing recognizes that there are circumstances clarifies that the requirements of standard and adopt language similar to where it would be unnecessary to drill § 75.389(c)(1), (c)(2) and (c)(3) do not the regulation which was in effect prior both ribs at all times. Thus, the final apply to routine mining-through to 1992. The proposed revisions to rule requires that both ribs be drilled operations that are part of a retreat § 75.388 (c) would have required bore unless the district manager grants section ventilation system approved in holes to be drilled in one or both ribs approval for an alternative drilling accordance with § 75.371(f) and (x). The of advancing working places described pattern under existing paragraph (g). final rule retains the proposed language. in § 75.388(a), ‘‘ . . . as may be Under existing paragraph (g), an The preamble to the proposal pointed necessary for adequate protection of alternative drilling pattern may be out that, based on comments received miners in such working places.’’ approved which may not require during informational meetings and other Several comments were received in drilling of both ribs. As with other plans discussions, differing interpretations of response to the proposal. One which are subject to approval, requests the application of existing § 75.389 commenter indicated that the proposed for alternative drilling patterns will be existed. Some persons were interpreting revision was unnecessary since the 1992 reviewed on a case by case basis. After paragraph (c) as requiring, for example, standard adequately indicated that more considering all comments received the mine to be evacuated during the than one rib may need to be drilled. discussing this issue, MSHA has break-through of a pillar split in a Another commenter stated that drilling concluded that the hazard of an retreating section. However, paragraphs one rib is always adequate since inundation is properly addressed by the (a) through (c) of § 75.389 were intended required drilling in adjacent places will final rule which retains sufficient to apply during mining-through assure that the entire area is explored by flexibility for a site specific drilling operations in areas subject to § 75.388 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9823 where hazards and potential hazards safety benefit; therefore, the level of However, operators with petitions for may be unknown. The final rule revises safety provided by the existing standard modifications granted for standards that existing § 75.389(c) by adding an is maintained. have been revised must comply with the exception for routine mining-through new rule on its effective date. New Petitions for Modification operations that are a part of a retreat petitions for modification of the final mining system approved in the mine Operators with petitions for rule may be submitted under 30 CFR ventilation plan. In some circumstances, modification that involve the standards part 44. If Agency assistance is needed, the mining through occurs during revised in this rulemaking need to questions should be directed to the routine mining into an area which is determine the status of those petitions appropriate MSHA district office. covered by an approved mine before the effective date of the rule. If Derivation Table ventilation plan. In this case, the there are sections of this rule that are potential hazards have already been renumbered but remain substantively The following derivation table lists addressed in the mine ventilation plan. unchanged from the existing standards, the number of each final standard and Requiring the operator to submit operators with modifications granted for the number of the existing standard duplicate plans would not result in any these standards need not reapply. from which it is derived.

New section Old section

75.301 ...... Partly new, 75.301. 75.310(a)(3) ...... Partly new, 75.310(a)(3). 75.310(a)(4) ...... Partly new, 75.310(a)(4). 75.310(c) ...... Partly new, 75.310(c). 75.310(c)(1) ...... Partly new, 75.310(c). 75.310(c)(2) ...... 75.310(c). 75.310(c)(3) ...... New. 75.310(c)(4) ...... Partly new, 75.310(c). 75.310(c)(4)(i) ...... 75.310(c)(1). 75.310(c)(4)(ii) ...... 75.310(c)(2). 75.310(c)(5) ...... New. 75.311(d) ...... Partly new, 75.311(d). 75.312(a) ...... Partly new, 75.312(a). 75.312(b)(1) ...... Partly new, 75.312(b)(1). 75.312(b)(1)(i) ...... New. 75.312(b)(1)(ii) ...... 75.312(b)(1) through(b)(1)(ii). 75.312(c) ...... Partly new, 75.312(c). 75.312(d) ...... Partly new, 75.312(d). 75.312(f)(1) ...... 75.312(f). 75.312(f)(2) ...... New. 75.312(g)(1) ...... Partly new, 75.312(g)(1). 75.312(g)(2) ...... New. 75.312(g)(3) ...... Partly new, 75.312(g)(3). 75.312(h) ...... Partly new, 75.312(h). 75.313(a)(1) ...... 75.313(a)(1). 75.313(a)(2) ...... 75.313(a)(2). 75.313(a)(3) ...... 75.313(a)(3). 75.313(b) ...... 75.313(b). 75.313(c)(1) ...... 75.313(c)(1). 75.313(c)(2) ...... Partly new, 75.313(c)(2). 75.313(c)(3) ...... Partly new, 75.313(c)(3). 75.313(d)(1)(i) ...... Partly new, 75.313(d)(1)(i). 75.313(d)(1)(ii) ...... Partly new, 75.313(d)(1)(ii). 75.313(d)(2) ...... Partly new, 75.313(d)(2). 75.320(e) ...... New. 75.321(a)(1) ...... Partly new, 75.321(a). 75.321(a)(2) ...... Partly new, 75.321(a). 75.323(b)(1) ...... 75.323(b)(1). 75.323(b)(1)(i) ...... 75.323(b)(1)(i). 75.323(b)(1)(ii) ...... Partly new, 75.323(b)(1)(ii). 75.323(b)(1)(iii) ...... 75.323(b)(1)(iii). 75.323(b)(2) ...... 75.323(b)(2). 75.323(b)(2)(i) ...... 75.323(b)(2)(i). 75.323(b)(2)(ii) ...... 75.323(b)(2)(ii). 75.323(c)(1) ...... Partly new, 75.323(c)(1). 75.323(d)(2)(i) ...... Partly new, 75.323(d)(2)(i). 75.325(d) ...... Partly new, 75.325(d). 75.330(c) ...... New. 75.332(a)(1) ...... 75.332(a)(1). 75.333(a) ...... Partly new, 75.333(a). 75.333(b)(1) ...... Partly new, 75.333(b)(1). 75.333(b)(3) ...... Partly new, 75.333(b)(3). 75.333(b)(4) ...... Partly new, 75.333(b)(4). 75.333(e)(1)(i) ...... Partly new, 75.333(e)(1). 75.333(e)(1)(ii) ...... Partly new, 75.333(e)(2). 75.333(h) ...... 75.333(e)(1). 75.334(e) ...... Partly new, 75.334(e). 9824 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations

New section Old section

75.334(f)(3) ...... Partly new, 75.334(f)(3). 75.340(a) ...... Partly new, 75.340(a). 75.342(a)(4) ...... Partly new, 75.342(a)(4). 75.342(a)(4)(i) ...... New. 75.342(a)(4)(ii) ...... New. 75.342(a)(4)(iii) ...... New. 75.344(a) ...... Partly new, 75.344(a). 75.344(a)(1) ...... Partly new, 75.344(b)(1). 75.344(a)(2) ...... Partly new, 75.344(a)(1). 75.344(a)(2)(i) ...... 75.344(b)(2)(i). 75.344(a)(2)(ii) ...... 75.344(b)(2)(ii). 75.344(b) ...... Partly new, 75.344(a)(2). 75.344(e) ...... New. 75.360(a)(1) ...... Partly new, 75.360(a)(1). 75.360(a)(2) ...... New. 75.360(b) ...... 75.360(b). 75.360(b)(1) ...... Partly new, 75.360(b)(1). 75.360(b)(3) ...... Partly new, 75.360(b)(3). 75.360(b)(4) ...... Partly new, 75.360(b)(4). 75.360(b)(6)(i) ...... Partly new, 75.360(b)(6). 75.360(b)(6)(ii) ...... Partly new, 75.360(b)(6). 75.360(b)(8) ...... New. 75.360(b)(9) ...... New. 75.360(b)(10) ...... New. 75.360(e) ...... 75.360(f). 75.360(f) ...... Partly new, 75.360(g). 75.360(g) ...... Partly new, 75.360(h). 75.362(a)(1) ...... Partly new, 75.362(a)(1). 75.362(a)(2) ...... New. 75.362(c)(1) ...... Partly new, 75.362(c)(1). 75.362(c)(2) ...... 75.362(c)(2). 75.362(d)(1)(i) ...... New. 75.362(d)(1)(iii) ...... Partly new, 75.362(d)(1)(ii). 75.362(d)(2) ...... Partly new, 75.362(d)(2). 75.362(g)(1) ...... New. 75.362(g)(2) ...... New. 75.363 ...... Partly new, 75.313, 75.361, 75.362. 75.364(a)(1) ...... Partly new, 75.364(a)(1). 75.364(a)(2)(i) ...... Partly new, 75.364(a)(2)(i). 75.364(a)(2)(ii) ...... Partly new, 75.364(a)(2)(ii). 75.364(a)(2)(iii) ...... Partly new, 75.364(a)(2)(iii). 75.364(a)(2)(iv) ...... Partly new, 75.364(a)(2)(iii). 75.364(h) ...... Partly new, 75.364(h). 75.364(i) ...... Partly new, 75.364(i). 75.370(a)(3) ...... Partly new, 75.370(a)(3). 75.370(a)(3)(i) ...... New. 75.370(a)(3)(ii) ...... 75.370(a)(3). 75.370(a)(3)(iii) ...... Partly new, 75.370(a)(3). 75.370(b) ...... New. 75.370(c)(1) ...... Partly new, 75.370(b)(1). 75.370(c)(2) ...... 75.370(b)(2). 75.370(f) ...... Partly new, 75.370(e). 75.370(f)(1) ...... New. 75.370(f)(2) ...... Partly new, 75.370(e). 75.370(f)(3) ...... Partly new, 75.370(e). 75.371(r) ...... Partly new, 75.371(r). 75.371(s) ...... Partly new, 75.371(s). 75.371(z) ...... Partly new, 75.371(z). 75.371(bb) ...... Partly new, 75.371(bb). 75.371(cc) ...... Partly new, 75.371(cc). 75.372(b)(3) ...... Partly new, 75.372(b)(3). 75.372(b)(19) ...... New. 75.372(b)(20) ...... New. 75.380(b)(1) ...... 75.380(b)(1). 75.380(b)(2) ...... 75.380(b)(2). 75.380(d)(3) ...... Partly new, 75.380(d)(3). 75.380(d)(4)(ii) ...... Partly new, 75.380(d)(4)(ii). 75.380(d)(4)(iii) ...... New. 75.380(d)(4)(iv) ...... New. 75.380(d)(5) ...... Partly new, 75.380(d)(5). 75.380(f) ...... Partly new, 75.380(f)(1). 75.380(f)(1) ...... Partly new, 75.380(f)(1). 75.380(f)(2) ...... Partly new, 75.380(f)(1). Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9825

New section Old section

75.380(f)(3) ...... Partly new, 75.380(f)(1). 75.380(f)(4) ...... Partly new, 75.380(f)(2). 75.380(f)(5) ...... Partly new, 75.380(f)(2). 75.380(f)(6) ...... New. 75.380(f)(7) ...... New. 75.380(i)(2) ...... Partly new, 75.380(i)(2). 75.382(g) ...... New. 75.383(a) ...... Partly new, 75.383(a). 75.383(b)(1) ...... 75.383(b)(1). 75.388(c) ...... Partly new, 75.388(c). 75.389(c) ...... New. 75.389(c)(1) ...... 75.389(c)(1).

Redesignation Table standard and the section number of the provisions derived from the The following redesignation table lists final standard which contain revised corresponding existing section. the section number of the existing

Old section New section

75.310(a)(3) ...... 75.310(a)(3). 75.310(a)(4) ...... 75.310(a)(4). 75.310(c) ...... 75.310(c). 75.310(c) ...... 75.310(c)(1). 75.310(c) ...... 75.310(c)(2). 75.310(c) ...... 75.310(c)(4). 75.310(c)(1) ...... 75.310(c)(4)(i). 75.310(c)(2) ...... 75.310(c)(4)(ii). 75.311(d) ...... 75.311(d). 75.312(a) ...... 75.312(a). 75.312(b)(1) ...... 75.312(b)(1), 75.312(b)(1)(ii). 75.312(b)(1)(i) ...... 75.312(b)(1)(ii)(A). 75.312(b)(1)(ii) ...... 75.312(b)(1)(ii)(B). 75.312(c) ...... 75.312(c). 75.312(d) ...... 75.312(d). 75.312(f) ...... 75.312(f)(1). 75.312(g)(1) ...... 75.312(g)(1). 75.312(g)(3) ...... 75.312(g)(3). 75.312(h) ...... 75.312(h). 75.313(c)(2) ...... 75.313(c)(2). 75.313(c)(3) ...... 75.313(c)(3). 75.313(d)(1)(i) ...... 75.313(d)(1)(i). 75.313(d)(1)(ii) ...... 75.313(d)(1)(ii). 75.321(a) ...... 75.321(a)(1). 75.321(a) ...... 75.321(a)(2). 75.323(b)(1)(ii) ...... 75.323(b)(1)(ii). 75.323(c)(1) ...... 75.323(c)(1). 75.323(d)(2)(i) ...... 75.323(d)(2)(i). 75.325(d) ...... 75.325(d). 75.333(a) ...... 75.333(a). 75.333(b)(1) ...... 75.333(b)(1). 75.333(b)(3) ...... 75.333(b)(3). 75.333(b)(4) ...... 75.333(b)(4). 75.333(e)(1) ...... 75.333(e)(1)(i). 75.333(e)(1) ...... 75.333(e)(1)(ii). 75.334(e) ...... 75.334(e). 75.334(f)(3) ...... 75.334(f)(3). 75.340(a) ...... 75.340(a) 75.340(a)(1) ...... 75.340(a)(1)(i). 75.340(a)(2) ...... 75.340(a)(1)(ii). 75.340(a)(3) ...... 75.340(a)(1)(iii). 75.340(a)(3)(i) ...... 75.340(a)(1)(iii)(A). 75.340(a)(3)(ii) ...... 75.340(a)(1)(iii)(B). 75.340(a) ...... 75.340(a)(2). 75.340(a)(1) ...... 75.340(a)(2)(i). 75.340(a)(2) ...... 75.340(a)(2)(ii). 75.342(a)(4) ...... 75.342(a)(4). 75.344(a) ...... 75.344(a). 75.344(a)(1) ...... 75.344(a)(2). 75.344(a)(2) ...... 75.344(b). 75.344(b)(1) ...... 75.344(a)(1). 75.344(b)(2) ...... 75.344(a)(2). 75.344(b)(2)(i) ...... 75.344(a)(2)(i). 9826 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations

Old section New section

75.344(b)(2)(ii) ...... 75.344(a)(2)(ii). 75.360(a) ...... 75.360(a)(1). 75.360(b) ...... 75.360(b). 75.360(b)(1) ...... 75.360(b)(1). 75.360(b)(3) ...... 75.360(b)(3). 75.360(b)(4) ...... 75.350(b)(4). 75.360(b)(6) ...... 75.360(b)(6)(i). 75.360(b)(6) ...... 75.360(b)(6)(ii). 75.360(c) ...... 75.360(c). 75.360(c)(1) ...... 75.360(c)(1). 75.360(c)(3 ...... 75.360(c)(3). 75.360(e) ...... 75.363. 75.360(f) ...... 75.360(e). 75.360(g) ...... 75.360(f). 75.360(h) ...... 75.360(g). 75.362(a)(1) ...... 75.362(a)(1). 75.363(a)(2) ...... 75.363. 75.362(c)(1) ...... 75.362(c)(1). 75.362(d)(1)(i) ...... 75.362(d)(1)(ii). 75.362(d)(1)(ii) ...... 75.362(d)(1)(iii). 75.362(d)(2) ...... 75.362(d)(2). 75.362(g) ...... 75.363. 75.362(h) ...... 75.363. 75.364(a)(1) ...... 75.364(a)(1). 75.364(a)(2)(i) ...... 75.364(a)(2)(i). 75.364(a)(2)(ii) ...... 75.364(a)(2)(ii). 75.364(a)(2)(iii) ...... 75.364(a)(2)(iii). 75.364(h) ...... 75.364(h). 75.364(i) ...... 75.364(i). 75.370(a)(3) ...... 75.370(a)(3). 75.370(a)(3) ...... 75.370(a)(3)(ii). 75.370(a)(3) ...... 75.370(a)(3)(iii). 75.370(b)(1) ...... 75.370(c)(1). 75.370(b)(2) ...... 75.370(c)(2). 75.370(e) ...... 75.370(f). 75.370(e) ...... 75.370(f)(2). 75.370(e) ...... 75.370(f)(3). 75.371(r) ...... 75.371(r). 75.371(s) ...... 75.371(s). 75.371(z) ...... 75.371(z). 75.371(bb) ...... 75.371(bb). 75.371(cc) ...... 75.371(cc). 75.372(b)(3) ...... 75.372(b)(3). 75.380(d)(3) ...... 75.380(d)(3). 75.380(d)(4)(ii) ...... 75.380(d)(4)(ii). 75.380(d)(5) ...... 75.380(d)(5). 75.380(f) ...... 75.380(f). 75.380(i)(2) ...... 75.380(i)(2). 75.383(a) ...... 75.383(a). 75.388(c) ...... 75.388(c). 75.389(c)(1) ...... 75.389(c)(1).

III. Paperwork Reduction Act separate notice in the Federal Register. including the validity of the underlying In accordance with § 1320.11(h) of the methodology and assumptions; and The information collection implementing regulations, OMB has 60 minimized the burden on respondents requirements contained in this rule have days from today’s publication date in for the information collection been submitted to the Office of which to approve, disapprove, or requirements, to the extent possible. Management and Budget (OMB) for instruct MSHA to make a change to the This final rule provides for the use of review under the Paperwork Reduction information collection requirements in electronic storage and maintenance of Act of 1995 (44 U.S.C. 3501–3520), as this rule. records. implemented by OMB in regulations at This final rule addresses comments Benefits 5 CFR part 1320. No person may be submitted to OMB and MSHA on the required to respond to, or may be collection of information requirements In assessing costs and benefits of the subjected to a penalty for failure to in the proposed rule. In revising the ventilation rule, it is important to note comply with, these information requirements from those that appeared that ventilation of underground coal collection requirements until they have in the proposed rule, MSHA has mines is the primary method of been approved and MSHA has evaluated the necessity and usefulness preventing the accumulation of announced the assigned OMB control of the collections of information; explosive methane gas, controlling number. The OMB control number, reevaluated MSHA’s estimate of the harmful respirable dust, and assuring when assigned, will be announced by information collection burden, the quality of air miners breath. Because Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9827 of the potential for a large number of work environment free of excessive million is composed of approximately fatalities resulting from ventilation levels of respirable dust, thereby $0.6 million in net annualized costs problems, MSHA has found it prudent improving long-term health protection (derived from $4.0 million one-time to establish multiple safety factors and for miners and potentially reducing the costs) and approximately $3.4 million safety work practices to better assure number of miners afflicted with coal net annual recurring costs. adequate protection for miners. It is workers’ pneumoconiosis. With respect to large underground extremely difficult to specifically Some provisions clarify the intent of coal mines the net total per year costs quantify safety benefits related to each the existing rule. Such clarifications will be approximately $3.0 million. This safety factor. However, due to the close, should increase the likelihood of $3.0 million is composed of confined nature of the workplace in an compliance and thereby will help to approximately $0.46 million in net underground coal mine, failure of any increase the probability of preventing a annualized costs (derived from $3.0 safety factors or protective actions fatality, injury, or non-injury accident. million one-time costs) and related to ventilation can have For the provisions which offer an approximately $2.54 million net annual disastrous effects. The introduction of alternative compliance option, the recurring costs. this rule lists some of those tragic mine miners will be provided at least the With respect to small underground accidents. In the restricted work same level of safety provided by an coal mines the net total per year costs environment of an underground coal existing requirement. These provisions will be approximately $1.0 million. This mine, failure of a single safety factor or will facilitate compliance by the $1.0 million is composed of noncompliance with a safe work operator, thereby increasing the approximately $0.14 million in net practice could jeopardize the well-being potential for the rule to reduce the annualized costs (derived from $1.0 of all miners underground. The total probability of a ventilation-related million one-time costs) and effect of the provisions in this final rule explosion or accident. approximately $0.82 million net annual In conclusion, the Agency determined in conjunction with MSHA’s existing recurring costs. that these provisions will increase the ventilation standards should decrease Executive Order 12866 requires that the occurrence of fatalities, injuries, probability that compliance with the ventilation rule will prevent future regulatory agencies assess the impact to accidents, and illnesses in underground the government for any regulation coal mines. ventilation-related accidents and generate a safer mining environment. determined to be a significant regulatory With respect to this final rule, the action. MSHA does not believe that this Agency has identified nine fatalities and Compliance Costs and Economic Impact rule will create any significant cost seven injuries which potentially could MSHA has compared the costs impacts to the government. The have been prevented by compliance associated with the existing regulation can be implemented under with these provisions. In addition, the requirements with the costs of the new existing government practices without final rule contains provisions to better requirements. Based upon the available any substantial equipment or facility assure compliance with the respirable data, MSHA estimates that compliance expenditures by the government. dust control parameters specified in the with the rule will produce net total per The incremental compliance costs for mine ventilation plan. Adherence to year costs of approximately $4.0 million all underground coal mines are listed by these parameters helps to maintain a for the mining industry. This $4.0 provision in Table I.

TABLE IV±1.ÐCOMPLIANCE COSTS TO COMPLY WITH THE VENTILATION RULE FOR ALL UNDERGROUND COAL MINES [In thousands of dollars]

First Standard year Annualized Annual costs costs costs

75.301 ...... (100) (7) (20) 75.310 ...... 329 47 (70) 75.311 ...... 75.312 ...... (1,121) 75.313 ...... 322 75.320 ...... 75.321 ...... 250 35 40 75.323 ...... 75.330 ...... 75.333 ...... 75.334 ...... 75.340 ...... 63 9 75.342 ...... 12 2 38 75.344 ...... 57 10 1,256 75.360 ...... 123 17 (1,556) 75.362 ...... 420 59 3,275 75.363 ...... 321 75.364 ...... 682 75.370 ...... 67 75.371 ...... 13 75.372 ...... 75.380 ...... 2,839 436 51 75.382 ...... 13 75.388 ...... 53 9828 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations

TABLE IV±1.ÐCOMPLIANCE COSTS TO COMPLY WITH THE VENTILATION RULE FOR ALL UNDERGROUND COAL MINESÐ Continued [In thousands of dollars]

First Standard year Annualized Annual costs costs costs

75.389.

Total costs ...... 3,993 608 3,364

Regulatory Flexibility Certification will benefit from some of the provisions regulatory relief is not warranted for and the alternative compliance small mining operations. Therefore, The Regulatory Flexibility Act methods. MSHA has determined that these requires that agencies evaluate and MSHA determined that these provisions will not have a significantly include, wherever possible, compliance revisions will not generate a substantial adverse impact upon a substantial alternatives that minimize any adverse cost increase for small mines. The lack number of small entities. impact on small businesses when of a substantial cost increase for small developing regulatory standards. MSHA mines, in conjunction with the fact that The incremental costs for small and has not exempted small mines from any similar hazards exist in both large and large mines are listed by provision in provision of the rule and small mines small mining operations, indicates that Table II.

TABLE IV±2.ÐCOMPLIANCE COSTS TO COMPLY WITH THE VENTILATION RULE FOR SMALL AND LARGE UNDERGROUND COAL MINES [In thousands of dollars]

First year costs Annualized costs Annual costs Standard Small Large Small Large Small Large

75.301 ...... (100) (7) (20) 75.310 ...... 273 56 39 8 (78) 8 75.311 ...... 75.312 ...... (1,121) 75.313 ...... 55 267 75.320 ...... 75.321 ...... 250 35 40 75.323 ...... 75.330 ...... 75.333 ...... 75.334 ...... 75.340 ...... 4 59 1 8 75.342 ...... 6 6 1 1 18 20 75.344 ...... 57 10 43 1,213 75.360 ...... 37 86 5 12 100 (1,656) 75.362 ...... 80 340 11 48 409 2,866 75.363 ...... 98 223 75.364 ...... 126 556 75.370 ...... 12 55 75.371 ...... 6 7 75.372 ...... 75.380 ...... 585 2,254 89 347 6 45 75.382 ...... 13 75.388 ...... 25 28 75.389 ......

Total ...... 985 3,008 146 462 820 2,544

List of Subjects in 30 CFR Part 75 Dated: March 4, 1996. PART 75ÐMANDATORY SAFETY J. Davitt McAteer, STANDARDSÐUNDERGROUND COAL Escapeways, Mine safety and health, Assistant Secretary for Mine Safety and MINES Underground coal mines, Ventilation. Health. 1. The authority citation for part 75 is Accordingly, part 75, subchapter O, revised to read as follows: chapter I, title 30 of the Code of Federal Regulations is amended as follows: Authority: 30 U.S.C. 811. 2. Subpart D of part 75 is revised to read as follows: Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9829

Subpart DÐVentilation currents between each is limited to to assist main mine fans except in Sec. leakage. anthracite mines. In anthracite mines, 75.300 Scope. Incombustible. Incapable of being booster fans installed in the main air 75.301 Definitions. burned. current or a split of the main air current 75.302 Main mine fans. Intake air. Air that has not yet may be used provided their use is 75.310 Installation of main mine fans. ventilated the last working place on any approved in the ventilation plan. 75.311 Main mine fan operation. split of any working section, or any 75.312 Main mine fan examinations and worked-out area, whether pillared or § 75.310 Installation of main mine fans. records. nonpillared. (a) Each main mine fan shall be— 75.313 Main mine fan stoppage with Intrinsically safe. Incapable of persons underground. (1) Installed on the surface in an 75.320 Air quality detectors and releasing enough electrical or thermal incombustible housing; measurement devices. energy under normal or abnormal (2) Connected to the mine opening 75.321 Air quality. conditions to cause ignition of a with incombustible air ducts; 75.322 Harmful quantities of noxious gases. flammable mixture of methane or (3) Equipped with an automatic 75.323 Actions for excessive methane. natural gas and air of the most easily device that gives a signal at the mine 75.324 Intentional changes in the ignitable composition. when the fan either slows or stops. A ventilation system. Noncombustible Structure or Area. 75.325 Air quantity. responsible person designated by the Describes a structure or area that will operator shall always be at a surface 75.326 Mean entry air velocity. continue to provide protection against 75.327 Air courses and trolley haulage location at the mine where the signal systems. flame spread for at least 1 hour when can be seen or heard while anyone is 75.330 Face ventilation control devices. subjected to a fire test incorporating an underground. This person shall be 75.331 Auxiliary fans and tubing. ASTM E119–88 time/temperature heat provided with two-way communication 75.332 Working sections and working input, or equivalent. with the working sections and work places. Noncombustible Material. Describes a stations where persons are routinely 75.333 Ventilation controls. material which when used to construct assigned to work for the majority of a 75.334 Worked-out areas and areas where a ventilation control results in a control shift; pillars are being recovered. that will continue to serve its intended (4) Equipped with a pressure 75.335 Construction of seals. function for 1 hour when subjected to a recording device or system. Mines 75.340 Underground electrical installations. fire test incorporating an ASTM E119– 75.341 Direct-fired intake air heaters. permitted to shut down main mine fans 88 time/temperature heat input, or 75.342 Methane monitors. under § 75.311 and which do not have equivalent. 75.343 Underground shops. a pressure recording device installed on 75.344 Compressors. Return air. Air that has ventilated the last working place on any split of any main mine fans shall have until March 75.350 Air courses and belt haulage entries. 11, 1997 to install a pressure recording 75.351 Atmospheric monitoring system working section or any worked-out area device or system on all main mine fans. (AMS). whether pillared or nonpillared. If air 75.352 Return air courses. mixes with air that has ventilated the If a device or system other than a 75.360 Preshift examination. last working place on any split of any circular pressure recorder is used to 75.361 Supplemental examination. working section or any worked-out area, monitor main mine fan pressure, the 75.362 On-shift examination. whether pillared or nonpillared, it is monitoring device or system shall 75.363 Hazardous conditions; posting, considered return air. For the purposes provide a continuous graph or correcting and recording. continuous chart of the pressure as a 75.364 Weekly examination. of § 75.507–1, air that has been used to ventilate any working place in a coal function of time. At not more than 7-day 75.370 Mine ventilation plan; submission intervals, a hard copy of the continuous and approval. producing section or pillared area, or air graph or chart shall be generated or the 75.371 Mine ventilation plan; contents. that has been used to ventilate any 75.372 Mine ventilation map. working face if such air is directed away record of the fan pressure shall be stored 75.373 Reopening mines. from the immediate return is return air. electronically. When records of fan 75.380 Escapeways; bituminous and lignite Notwithstanding the definition of intake pressure are stored electronically, the mines. air, for the purpose of ventilation of system used to store these records shall 75.381 Escapeways; anthracite mines. structures, areas or installations that are be secure and not susceptible to 75.382 Mechanical escape facilities. alteration and shall be capable of storing 75.383 Escapeway maps and drills. required by this subpart D to be ventilated to return air courses, and for the required data. Records of the fan 75.384 Longwall and shortwall travelways. pressure shall be retained at a surface 75.385 Opening new mines. ventilation of seals, other air courses location at the mine for at least 1 year 75.386 Final mining of pillars. may be designated as return air courses 75.388 Boreholes in advance of mining. by the operator only when the air in and be made available for inspection by 75.389 Mining into inaccessible areas. these air courses will not be used to authorized representatives of the Secretary and the representative of § 75.300 Scope. ventilate working places or other locations, structures, installations or miners; This subpart sets requirements for areas required to be ventilated with (5) Protected by one or more weak underground coal mine ventilation. intake air. walls or explosion doors, or a combination of weak walls and § 75.301 Definitions. Worked-out area. An area where mining has been completed, whether explosion doors, located in direct line In addition to the applicable pillared or nonpillared, excluding with possible explosive forces; definitions in § 75.2, the following developing entries, return air courses, (6) Except as provided under definitions apply in this subpart. and intake air courses. paragraph (e) of this section, offset by at Air course. An entry or a set of entries least 15 feet from the nearest side of the separated from other entries by § 75.302 Main mine fans. mine opening unless an alternative stoppings, overcasts, other ventilation Each coal mine shall be ventilated by method of protecting the fan and its control devices, or by solid blocks of one or more main mine fans. Booster associated components is approved in coal or rock so that any mixing of air fans shall not be installed underground the ventilation plan. 9830 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations

(b)(1) If an electric motor is used to (2) The fan entry shall be developed operator shall always be at a surface drive a main mine fan, the motor shall out of direct line with possible location where each main mine fan operate from a power circuit explosive forces; signal can be seen or heard. independent of all mine power circuits. (3) The coal or other solid material (f) The area within 100 feet of main (2) If an internal combustion engine is between the pressure relief entry and mine fans and intake air openings shall used to drive a main mine fan— the fan entry shall be at least 2,500 be kept free of combustible material, (i) The fuel supply shall be protected square feet; and unless alternative precautions necessary against fires and explosions; (4) The surface opening of the to provide protection from fire or other (ii) The engine shall be installed in an pressure relief entry shall be not less products of combustion are approved in incombustible housing and be equipped than 15 feet nor more than 100 feet from the ventilation plan. with a remote shut-down device; the surface opening of the fan entry and (g) If multiple mine fans are used, the (iii) The engine and the engine from the underground intersection of mine ventilation system shall be exhaust system shall be located out of the fan entry and pressure relief entry. designed and maintained to eliminate direct line of the air current exhausting (f) In mines ventilated by multiple areas without air movement. from the mine; and main mine fans, incombustible doors (h) Any atmospheric monitoring (iv) The engine exhaust shall be shall be installed so that if any main system operated during fan stoppages vented to the atmosphere so that the mine fan stops and air reversals through shall be intrinsically safe. exhaust gases do not contaminate the the fan are possible, the doors on the mine intake air current or any affected fan automatically close. § 75.312 Main mine fan examinations and enclosure. records. (c) If a main mine fan monitoring § 75.311 Main mine fan operation. (a) To assure electrical and system is used under § 75.312, the (a) Main mine fans shall be mechanical reliability of main mine system shall— continuously operated, except as fans, each main mine fan and its (1) Record, as described in paragraph otherwise approved in the ventilation associated components, including (a)(4) the mine ventilating pressure; plan, or when intentionally stopped for devices for measuring or recording mine (2) Monitor bearing temperature, testing of automatic closing doors and ventilation pressure, shall be examined revolutions per minute, vibration, automatic fan signal devices, for proper operation by a trained person electric voltage, and amperage; maintenance or adjustment of the fan, or designated by the operator. (3) Provide a printout of the to perform maintenance or repair work Examinations of main mine fans shall be monitored parameters, including the underground that cannot otherwise be made at least once each day that the fan mine ventilating pressure within a made while the fan is operating. operates, unless a fan monitoring system reasonable period, not to exceed the end (b) Except as provided in paragraph is used. No examination is required on of the next scheduled shift during (c) of this section, when a main mine any day when no one, including which miners are underground; and fan is intentionally stopped and the certified persons, goes underground, (4) Be equipped with an automatic device that signals when— ventilating quantity provided by the fan except that an examination shall be (i) An electrical or mechanical is not maintained by a back-up fan completed prior to anyone entering the deficiency exists in the monitoring system— mine. system; or (1) Only persons necessary to evaluate (b)(1) If a main mine fan monitoring (ii) A sudden increase or loss in mine the effect of the fan stoppage or restart, system is used, a trained person ventilating pressure occurs. or to perform maintenance or repair designated by the operator shall— (5) Provide monitoring, records, work that cannot otherwise be made (i) At least once each day review the printouts, and signals required by while the fan is operating, shall be data provided by the fan monitoring paragraphs (c)(1) through (c)(4) at a permitted underground; system to assure that the fan and the fan surface location at the mine where a (2) Mechanized equipment shall be monitoring system are operating responsible person designated by the shut off before stopping the fan; and properly. No review is required on any operator is always on duty and where (3) Electric power circuits entering day when no one, including certified signals from the monitoring system can underground areas of the mine shall be persons, goes underground, except that be seen or heard while anyone is deenergized. a review of the data shall be performed underground. This person shall be (c) When a back-up fan system is used prior to anyone entering the provided with two-way communication that does not provide the ventilating underground portion of the mine. Data with the working sections and work quantity provided by the main mine fan, reviewed should include the fan stations where persons are routinely persons may be permitted in the mine pressure, bearing temperature, assigned to work for the majority of a and electric power circuits may be revolutions per minute, vibration, shift. energized as specified in the approved electric voltage, and amperage; and (d) Weak walls and explosion doors ventilation plan. (ii) At least every 7 days— shall have cross-sectional areas at least (d) If an unusual variance in the mine (A) Test the monitoring system for equal to that of the entry through which ventilation pressure is observed, or if an proper operation; and the pressure from an explosion electrical or mechanical deficiency of a (B) Examine each main mine fan and underground would be relieved. A weak main mine fan is detected, the mine its associated components to assure wall and explosion door combination foreman or equivalent mine official, or electrical and mechanical reliability of shall have a total cross-sectional area at in the absence of the mine foreman or main mine fans. least equal to that of the entry through equivalent mine official, a designated (2) If the monitoring system which the pressure from an explosion certified person acting for the mine malfunctions, the malfunction shall be underground would be relieved. foreman or equivalent mine official corrected, or paragraph (a) of this (e) If a mine fan is installed in line shall be notified immediately, and section shall apply. with an entry, a slope, or a shaft— appropriate action or repairs shall be (c) At least every 31 days, the (1) The cross-sectional area of the instituted promptly. automatic fan signal device for each pressure relief entry shall be at least (e) While persons are underground, a main mine fan shall be tested by equal to that of the fan entry; responsible person designated by the stopping the fan. Only persons Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9831 necessary to evaluate the effect of the operation of the fan that are not other areas where methane is likely to fan stoppage or restart, or to perform corrected by the end of that shift. accumulate before work is resumed and maintenance or repair work that cannot Records shall be maintained in a secure before equipment is energized or otherwise be made while the fan is book that is not susceptible to alteration restarted in these areas. operating, shall be permitted or electronically in a computer system (c) If ventilation is not restored within underground. Notwithstanding the so as to be secure and not susceptible 15 minutes after a main mine fan requirement of § 75.311(b)(3), to alteration. stops— underground power may remain (2) When a fan monitoring system is (1) Everyone shall be withdrawn from energized during this test provided no used in lieu of the daily fan the mine; one, including persons identified in examination— (2) Underground electric power § 75.311(b)(1), is underground. If the fan (i) The certified copies of data circuits shall be deenergized. However, is not restarted within 15 minutes, produced by fan monitoring systems circuits necessary to withdraw persons underground power shall be shall be maintained separate from other from the mine need not be deenergized deenergized and no one shall enter any computer-generated reports or data; and if located in areas or haulageways where underground area of the mine until the (ii) A record shall be made of any fan methane is not likely to migrate to or fan is restarted and an examination of monitoring system malfunctions, accumulate. These circuits shall be the mine is conducted as described in electrical or mechanical deficiencies in deenergized as persons are withdrawn; § 75.360 (b) through (e) and the mine the monitoring system and any sudden and has been determined to be safe. increase or loss in mine ventilating (3) Mechanized equipment not (d) At least every 31 days, the pressure. The record shall be made by located on working sections shall be automatic closing doors in multiple the end of the shift on which the review shut off. However, mechanized main mine fan systems shall be tested of the data is completed and shall be equipment necessary to withdraw by stopping the fan. Only persons maintained in a secure book that is not persons from the mine need not be shut necessary to evaluate the effect of the susceptible to alteration or off if located in areas where methane is fan stoppage or restart, or to perform electronically in a computer system so not likely to migrate to or accumulate. maintenance or repair work that cannot as to be secure and not susceptible to (d)(1) When ventilation is restored— otherwise be made while the fan is alteration. (i) No one other than designated operating, shall be permitted (3) By the end of the shift on which certified examiners shall enter any underground. Notwithstanding the the monthly test of the automatic fan underground area of the mine until an provisions of § 75.311, underground signal device or the automatic closing examination is conducted as described power may remain energized during this doors is completed, persons making in § 75.360(b) through (e) and the area test provided no one, including persons these tests shall record the results of the has been determined to be safe. identified in § 75.311(b)(1), is tests. Records shall be maintained in a Designated certified examiners shall underground. If the fan is not restarted secure book that is not susceptible to enter the underground area of the mine within 15 minutes, underground power alteration or electronically in a from which miners have been shall be deenergized and no one shall computer system so as to be secure and withdrawn only after the fan has enter any underground area of the mine, not susceptible to alteration. until the fan is restarted and an (h) Retention period. Records, operated for at least 15 minutes unless examination of the mine is conducted as including records of mine fan pressure a longer period of time is specified in described in § 75.360 (b) through (e) and and the certified copies of data the approved ventilation plan. the mine has been determined to be produced by fan monitoring systems, (ii) Underground power circuits shall safe. shall be retained at a surface location at not be energized and nonpermissible (e) Circular main mine fan pressure the mine for at least 1 year and shall be mechanized equipment shall not be recording charts shall be changed before made available for inspection by started or operated in an area until an the beginning of a second revolution. authorized representatives of the examination is conducted as described (f)(1) Certification. Persons making Secretary and the representative of in § 75.360(b) through (e) and the area main mine fan examinations shall miners. has been determined to be safe, except certify by initials and date at the fan or that designated certified examiners may another location specified by the § 75.313 Main mine fan stoppage with use nonpermissible transportation operator that the examinations were persons underground. equipment in intake airways to facilitate made. Each certification shall identify (a) If a main mine fan stops while the making of the required examination. the main mine fan examined. anyone is underground and the (2) If ventilation is restored to the (2) Persons reviewing data produced ventilating quantity provided by the fan mine before miners reach the surface, by a main mine fan monitoring system is not maintained by a back-up fan the miners may return to underground shall certify by initials and date on a system— working areas only after an examination printed copy of the data from the system (1) Electrically powered equipment in of the areas is made by a certified that the review was completed. In lieu each working section shall be person and the areas are determined to of certification on a copy of the data, the deenergized; be safe. person reviewing the data may certify (2) Other mechanized equipment in (e) Any atmospheric monitoring electronically that the review was each working section shall be shut off; system operated during fan stoppages completed. Electronic certification shall and shall be intrinsically safe. be by handwritten initials and date in a (3) Everyone shall be withdrawn from computer system so as to be secure and the working sections and areas where § 75.320 Air quality detectors and not susceptible to alteration. mechanized mining equipment is being measurement devices. (g)(1) Recordkeeping. By the end of installed or removed. (a) Tests for methane shall be made by the shift on which the examination is (b) If ventilation is restored within 15 a qualified person with MSHA approved made, persons making main mine fan minutes after a main mine fan stops, detectors that are maintained in examinations shall record all certified persons shall examine for permissible and proper operating uncorrected defects that may affect the methane in the working places and in condition and calibrated with a known 9832 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations methane-air mixture at least once every dioxide, shall not exceed the current (i) Everyone except those persons 31 days. threshold limit values (TLV) as referred to in § 104(c) of the Act shall be (b) Tests for oxygen deficiency shall specified and applied by the ACGIH. withdrawn from the affected area; be made by a qualified person with Detectors or laboratory analysis of mine (ii) Other than intrinsically safe AMS, MSHA approved oxygen detectors that air samples shall be used to determine equipment in the affected area shall be are maintained in permissible and the concentrations of harmful, noxious, deenergized, electric power shall be proper operating condition and that can or poisonous gases. disconnected at the power source, and detect 19.5 percent oxygen with an § 75.323 Actions for excessive methane. other mechanized equipment shall be accuracy of ±0.5 percent. The oxygen shut off; and (a) Location of tests. Tests for methane detectors shall be calibrated at the start (iii) No other work shall be permitted concentrations under this section shall of each shift that the detectors will be in the affected area until the methane be made at least 12 inches from the roof, used. concentration in the return air is less face, ribs, and floor. (c) Handheld devices that contain than 1.0 percent. electrical components and that are used (b) Working places and intake air for measuring air velocity, carbon courses. (d) Return air split alternative. (1) The monoxide, oxides of nitrogen, and other (1) When 1.0 percent or more methane provisions of this paragraph apply if— gases shall be approved and maintained is present in a working place or an (i) The quantity of air in the split in permissible and proper operating intake air course, including an air ventilating the active workings is at condition. course in which a belt conveyor is least 27,000 cubic feet per minute in the (d) An oxygen detector approved by located, or in an area where mechanized last open crosscut or the quantity MSHA shall be used to make tests for mining equipment is being installed or specified in the approved ventilation oxygen deficiency required by the removed— plan, whichever is greater; regulations in this part. Permissible (i) Except intrinsically safe (ii) The methane content of the air in flame safety lamps may only be used as atmospheric monitoring systems (AMS), the split is continuously monitored a supplementary testing device. electrically powered equipment in the during mining operations by an AMS (e) Maintenance of instruments affected area shall be deenergized, and that gives a visual and audible signal on required by paragraphs (a) through (d) of other mechanized equipment shall be the working section when the methane this section shall be done by persons shut off; in the return air reaches 1.5 percent, and trained in such maintenance. (ii) Changes or adjustments shall be the methane content is monitored as made at once to the ventilation system specified in § 75.351; and § 75.321 Air quality. to reduce the concentration of methane (iii) Rock dust is continuously applied (a)(1) The air in areas where persons to less than 1.0 percent; and with a mechanical duster to the return work or travel, except as specified in (iii) No other work shall be permitted air course during coal production at a paragraph (a)(2) of this section, shall in the affected area until the methane location in the air course immediately contain at least 19.5 percent oxygen and concentration is less than 1.0 percent. outby the most inby monitoring point. not more than 0.5 percent carbon (2) When 1.5 percent or more methane dioxide, and the volume and velocity of (2) When 1.5 percent or more methane is present in a working place or an is present in a return air split between the air current in these areas shall be intake air course, including an air sufficient to dilute, render harmless, a point in the return opposite the course in which a belt conveyor is section loading point and where that and carry away flammable, explosive, located, or in an area where mechanized noxious, and harmful gases, dusts, split of air meets another split of air or mining equipment is being installed or where the split of air is used to ventilate smoke, and fumes. removed— (2) The air in areas of bleeder entries seals or worked-out areas— (i) Everyone except those persons and worked-out areas where persons (i) Changes or adjustments shall be referred to in § 104(c) of the Act shall be work or travel shall contain at least 19.5 made at once to the ventilation system withdrawn from the affected area; and percent oxygen, and carbon dioxide to reduce the concentration of methane (ii) Except for intrinsically safe AMS, levels shall not exceed 0.5 percent time in the return air below 1.5 percent; electrically powered equipment in the weighted average and 3.0 percent short (ii) Everyone except those persons affected area shall be disconnected at term exposure limit. referred to in § 104(c) of the Act shall be the power source. (b) Notwithstanding the provisions of withdrawn from the affected area; (c) Return air split. (1) When 1.0 § 75.322, for the purpose of preventing percent or more methane is present in (iii) Except for intrinsically safe AMS, explosions from gases other than a return air split between the last equipment in the affected area shall be methane, the following gases shall not working place on a working section and deenergized, electric power shall be be permitted to accumulate in excess of where that split of air meets another disconnected at the power source, and the concentrations listed below: split of air, or the location at which the other mechanized equipment shall be (1) Carbon monoxide (CO)—2.5 split is used to ventilate seals or shut off; and percent (iv) No other work shall be permitted (2) Hydrogen (H )—.80 percent worked-out areas changes or 2 adjustments shall be made at once to the in the affected area until the methane (3) Hydrogen sulfide (H2S)—.80 concentration in the return air is less percent ventilation system to reduce the concentration of methane in the return than 1.5 percent. (4) Acetylene (C2H2)—.40 percent air to less than 1.0 percent. (e) Bleeders and other return air (5) Propane (C3H8)—.40 percent (6) MAPP (methyl-acetylene- (2) When 1.5 percent or more methane courses. The concentration of methane propylene-propodiene)—.30 percent is present in a return air split between in a bleeder split of air immediately the last working place on a working before the air in the split joins another § 75.322 Harmful quantities of noxious section and where that split of air meets split of air, or in a return air course gases. another split of air, or the location other than as described in paragraphs (c) Concentrations of noxious or where the split is used to ventilate seals and (d) of this section, shall not exceed poisonous gases, other than carbon or worked-out areas— 2.0 percent. Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9833

§ 75.324 Intentional changes in the of a pillar line shall be at least 9,000 dust concentrations below the ventilation system. cubic feet per minute unless a greater applicable levels. Mean entry air (a) A person designated by the quantity is required to be specified in velocity shall be determined at or near operator shall supervise any intentional the approved ventilation plan. the inby end of the line curtain, change in ventilation that— (c) In longwall and shortwall mining ventilation tubing, or other face (1) Alters the main air current or any systems— ventilation control devices. split of the main air current in a manner (1) The quantity of air shall be at least that could materially affect the safety or 30,000 cubic feet per minute reaching § 75.327 Air courses and trolley haulage health of persons in the mine; or the working face of each longwall, systems. (2) Affects section ventilation by unless the operator demonstrates that a (a) In any mine opened on or after 9,000 cubic feet per minute of air or lesser air quantity will maintain March 30, 1970, or in any new working more in bituminous or lignite mines, or continual compliance with applicable section of a mine opened before that 5,000 cubic feet per minute of air or methane and respirable dust standards. date, where trolley haulage systems are more in anthracite mines. This lesser quantity shall be specified in maintained and where trolley wires or (b) Intentional changes shall be made the approved ventilation plan. A trolley feeder wires are installed, an only under the following conditions: quantity greater than 30,000 cubic feet authorized representative of the (1) Electric power shall be removed per minute may be required to be Secretary shall require enough entries or from areas affected by the ventilation specified in the approved ventilation rooms as intake air courses to limit the change and mechanized equipment in plan. velocity of air currents in the those areas shall be shut off before the (2) The velocity of air that will be haulageways to minimize the hazards of ventilation change begins. provided to control methane and fires and dust explosions in the (2) Only persons making the change respirable dust below applicable haulageways. in ventilation shall be in the mine. standards on each longwall or shortwall (b) Unless the district manager (3) Electric power shall not be and the locations where these velocities approves a higher velocity, the velocity restored to the areas affected by the will be provided shall be specified in of the air current in the trolley haulage ventilation change and mechanized the approved ventilation plan. The entries shall be limited to not more than equipment shall not be restarted until a locations specified shall be at least 50 250 feet per minute. A higher air certified person has examined these feet but no more than 100 feet from the velocity may be required to limit the areas for methane accumulation and for headgate and tailgate, respectively. methane content in these haulage oxygen deficiency and has determined (d) Ventilation shall be maintained entries or elsewhere in the mine to less that the areas are safe. during installation and removal of than 1.0 percent and provide an mechanized mining equipment. The § 75.325 Air quantity. adequate supply of oxygen. approved ventilation plan shall specify (a)(1) In bituminous and lignite mines the minimum quantity of air, the § 75.330 Face ventilation control devices. the quantity of air shall be at least 3,000 locations where this quantity will be (a) Brattice cloth, ventilation tubing cubic feet per minute reaching each provided and the ventilation controls and other face ventilation control working face where coal is being cut, required. devices shall be made of flame-resistant mined, drilled for blasting, or loaded. (e) In anthracite mines, the quantity of material approved by MSHA. When a greater quantity is necessary to air shall be as follows: (b)(1) Ventilation control devices shall dilute, render harmless, and carry away (1) At least 1,500 cubic feet per be used to provide ventilation to dilute, flammable, explosive, noxious, and minute reaching each working face render harmless, and to carry away harmful gases, dusts, smoke, and fumes, where coal is being mined, unless a flammable, explosive, noxious, and this quantity shall be specified in the greater quantity is required to be harmful gases, dusts, smoke, and approved ventilation plan. A minimum specified in the approved ventilation fumes— air quantity may be required to be plan. (i) To each working face from which specified in the approved ventilation (2) At least 5,000 cubic feet per plan for other working places or coal is being cut, mined, drilled for minute passing through the last open blasting, or loaded; and working faces. crosscut in each set of entries or rooms (ii) To any other working places as (2) The quantity of air reaching the and at the intake end of any pillar line, required by the approved ventilation working face shall be determined at or unless a greater quantity is required to plan. near the face end of the line curtain, be specified in the approved ventilation ventilation tubing, or other ventilation plan. (2) These devices shall be installed at control device. If the curtain, tubing, or (3) When robbing areas where air a distance no greater than 10 feet from device extends beyond the last row of currents cannot be controlled and air the area of deepest penetration to which permanent roof supports, the quantity of measurements cannot be obtained, the any portion of the face has been air reaching the working face shall be air shall have perceptible movement. advanced unless an alternative distance determined behind the line curtain or in is specified and approved in the the ventilation tubing at or near the last § 75.326 Mean entry air velocity. ventilation plan. Alternative distances row of permanent supports. In exhausting face ventilation specified shall be capable of (3) If machine mounted dust systems, the mean entry air velocity maintaining concentrations of respirable collectors or diffuser fans are used, the shall be at least 60 feet per minute dust, methane, and other harmful gases approved ventilation plan shall specify reaching each working face where coal below the levels specified in the the operating volume of the dust is being cut, mined, drilled for blasting, applicable sections of this chapter. collector or diffuser fan. or loaded, and to any other working (c) When the line brattice or any other (b) In bituminous and lignite mines, places as required in the approved face ventilation control device is the quantity of air reaching the last open ventilation plan. A lower mean entry air damaged to an extent that ventilation of crosscut of each set of entries or rooms velocity may be approved in the the working face is inadequate, on each working section and the ventilation plan if the lower velocity production activities in the working quantity of air reaching the intake end will maintain methane and respirable place shall cease until necessary repairs 9834 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations are made and adequate ventilation is Second mining is intentional retreat serve their intended purpose of restored. mining where pillars have been wholly maintaining separation and permitting or partially removed, regardless of the travel between air courses, and shall be § 75.331 Auxiliary fans and tubing. amount of recovery obtained. installed as follows in permanent (a) When auxiliary fans and tubing are (2) Air that has passed by any opening stoppings constructed after November used for face ventilation, each auxiliary of any unsealed area that is not 15, 1992: fan shall be— examined under §§ 75.360, 75.361 or (1) The distance between personnel (1) Permissible, if the fan is 75.364 of this subpart, shall not be used doors shall be no more than 300 feet in electrically operated; to ventilate any working place. seam heights below 48 inches and 600 (2) Maintained in proper operating feet in seam heights 48 inches or higher. condition; § 75.333 Ventilation controls. (2) The location of all personnel doors (3) Deenergized or shut off when no (a) For purposes of this section, in stoppings along escapeways shall be one is present on the working section; ‘‘doors’’ include any door frames. clearly marked so that the doors may be and (b) Permanent stoppings or other easily identified by anyone traveling in (4) Located and operated to avoid permanent ventilation control devices the escapeway and in the entries on recirculation of air. constructed after November 15, 1992, either side of the doors. (b) If a deficiency exists in any shall be built and maintained— (3) When not in use, personnel doors auxiliary fan system, the deficiency (1) Between intake and return air shall be closed. shall be corrected or the auxiliary fan courses, except temporary controls may (d) Doors, other than personnel doors, shall be deenergized immediately. be used in rooms that are 600 feet or less constructed after November 15, 1992, (c) If the air passing through an from the centerline of the entry from that are used in lieu of permanent auxiliary fan or tubing contains 1.0 which the room was developed stoppings or to control ventilation percent or more methane, power to including where continuous face within an air course shall be: electrical equipment in the working haulage systems are used in such rooms. (1) Made of noncombustible material place and to the auxiliary fan shall be Unless otherwise approved in the or coated on all accessible surfaces with deenergized, and other mechanized ventilation plan, these stoppings or flame-retardant material having a flame- equipment in the working place shall be controls shall be maintained to and spread index of 25 or less, as tested shut off until the methane concentration including the third connecting crosscut under ASTM E162–87. is reduced to less than 1.0 percent. outby the working face; (2) Of sufficient strength to serve their (d) When an auxiliary fan is (2) To separate belt conveyor intended purpose of maintaining stopped— haulageways from return air courses, separation and permitting travel (1) Line brattice or other face except where belt entries in areas of between or within air courses or entries. ventilation control devices shall be used mines developed before March 30, 1970, (3) Installed in pairs to form an to maintain ventilation to affected faces; are used as return air courses; airlock. When an airlock is used, one and (3) To separate belt conveyor side of the airlock shall remain closed. (2) Electrical equipment in the haulageways from intake air courses When not in use, both sides shall be affected working places shall be when the air in the intake air courses is closed. disconnected at the power source, and used to provide air to active working (e)(1)(i) Except as provided in other mechanized equipment shall be places. Temporary ventilation controls paragraphs (e)(2), (e)(3) and (e)(4) of this shut off until ventilation to the working may be used in rooms that are 600 feet section all overcasts, undercasts, shaft place is restored. or less from the centerline of the entry partitions, permanent stoppings, and from which the rooms were developed regulators, installed after March 11, § 75.332 Working sections and working including where continuous face 1997, shall be constructed in a places. haulage systems are used in such rooms. traditionally accepted method and of (a)(1) Each working section and each When continuous face haulage systems materials that have been demonstrated area where mechanized mining are used, permanent stoppings or other to perform adequately or in a method equipment is being installed or permanent ventilation control devices and of materials that have been tested removed, shall be ventilated by a shall be built and maintained to the and shown to have a minimum strength separate split of intake air directed by outby most point of travel of the dolly equal to or greater than the traditionally overcasts, undercasts or other or 600 feet from the point of deepest accepted in-mine controls. Tests may be permanent ventilation controls. penetration in the conveyor belt entry, performed under ASTM E72–80 Section (2) When two or more sets of mining whichever distance is closer to the point 12—Transverse Load-Specimen equipment are simultaneously engaged of deepest penetration, to separate the Vertical, load only, or the operator may in cutting, mining, or loading coal or continuous haulage entry from the conduct comparative in-mine tests. In- rock from working places within the intake entries; mine tests shall be designed to same working section, each set of (4) To separate the primary escapeway demonstrate the comparative strength of mining equipment shall be on a separate from belt and trolley haulage entries, as the proposed construction and a split of intake air. required by § 75.380(g). For the traditionally accepted in-mine control. (3) For purposes of this section, a set purposes of § 75.380(g), the loading (ii) All overcasts, undercasts, shaft of mining equipment includes a single point for a continuous haulage system partitions, permanent stoppings, and loading machine, a single continuous shall be the outby most point of travel regulators, installed after November 15, mining machine, or a single longwall or of the dolly or 600 feet from the point 1992, shall be constructed of shortwall mining machine. of deepest penetration, whichever noncombustible material. Materials that (b)(1) Air that has passed through any distance is less; and are suitable for the construction of area that is not examined under (5) In return air courses to direct air overcasts, undercasts, shaft partitions, §§ 75.360, 75.361 or 75.364 of this into adjacent worked-out areas. permanent stoppings, and regulators subpart, or through an area where (c) Personnel doors shall be include concrete, concrete block, brick, second mining has been done shall not constructed of noncombustible material cinder block, tile, or steel. No be used to ventilate any working place. and shall be of sufficient strength to ventilation controls installed after Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9835

November 15, 1992, shall be constructed (2) The means to determine the minimize leakage and that has a flame- of aluminum. effectiveness of bleeder systems; spread index of 25 or less, as tested (2) In anthracite mines, permanent (3) The means for adequately under ASTM E162–87, ‘‘Surface stoppings may be constructed of maintaining bleeder entries free of Flammability of Materials Using a overlapping layers of hardwood mine obstructions such as roof falls and Radiant Heat Energy Source.’’ boards, if the stoppings are a minimum standing water; and (2) Alternative methods or materials 2 inches thick. (4) The location of ventilating devices may be used to create a seal if they can (3) When timbers are used to create such as regulators, stoppings and withstand a static horizontal pressure of permanent stoppings in heaving or bleeder connectors used to control air 20 pounds per square inch provided the caving areas, the stoppings shall be movement through the worked-out area. method of installation and the material coated on all accessible surfaces with a (d) If the bleeder system used does not used approved in the ventilation plan. flame-retardant material having a flame- continuously dilute and move methane- If the alternative methods or materials spread index of 25 or less, as tested air mixtures and other gases, dusts, and include the use of timbers, the timbers under ASTM E162–87, ‘‘Surface fumes away from worked-out areas into also shall be coated on all accessible Flammability of Materials Using a a return air course or to the surface of surfaces with flame-retardant material Radiant Heat Energy Source.’’ the mine, or it cannot be determined by having a flame-spread index 25 or less, (4) In anthracite mines, doors and examinations or evaluations under as tested under ASTM E162–87. regulators may be constructed of § 75.364 that the bleeder system is (b) A sampling pipe or pipes shall be overlapping layers of hardwood boards, working effectively, the worked-out area installed in each set of seals for a if the doors, door frames, and regulators shall be sealed. worked-out area. Each pipe shall— are a minimum 2 inches thick. (e) Each mining system shall be (1) Extend into the sealed area a (f) When sealants are applied to designed so that each worked-out area sufficient distance (at least 15 feet) to ventilation controls, the sealant shall can be sealed. The approved ventilation obtain a representative sample from have a flame-spread index of 25 or less plan shall specify the location and the behind the seal; under ASTM E162–87. sequence of construction of proposed (2) Be equipped with a cap or shut-off (g) Before mining is discontinued in seals. valve; and an entry or room that is advanced more (f) In place of the requirements of (3) Be installed with the sampling end than 20 feet from the inby rib, a crosscut paragraphs (a) and (b) of this section, for of the pipe about 12 inches from the shall be made or line brattice shall be mines with a demonstrated history of roof. installed and maintained to provide spontaneous combustion, or that are (c)(1) A corrosion-resistant water pipe adequate ventilation. When conditions located in a coal seam determined to be or pipes shall be installed in seals at the such as methane liberation warrant a susceptible to spontaneous combustion, low points of the area being sealed and distance less than 20 feet, the approved the approved ventilation plan shall at all other locations necessary when ventilation plan shall specify the specify the following: water accumulation within the sealed (1) Measures to detect methane, location of such rooms or entries and area is possible; and carbon monoxide, and oxygen the maximum distance they will be (2) Each water pipe shall have a water concentrations during and after pillar developed before a crosscut is made or trap installed on the outby side of the recovery, and in worked-out areas line brattice is installed. seal. (h) All permanent ventilation where no pillars have been recovered, to controls, including seals, shall be determine if the areas must be § 75.340 Underground electrical maintained to serve the purpose for ventilated or sealed. installations. which they were built. (2) Actions that will be taken to (a) Underground transformer stations, protect miners from the hazards of battery charging stations, substations, § 75.334 Worked-out areas and areas spontaneous combustion. where pillars are being recovered. rectifiers, and water pumps shall be (3) If a bleeder system will not be housed in noncombustible structures or (a) Worked-out areas where no pillars used, the methods that will be used to have been recovered shall be— areas or be equipped with a fire control spontaneous combustion, suppression system meeting the (1) Ventilated so that methane-air accumulations of methane-air mixtures, mixtures and other gases, dusts, and requirements of § 75.1107–3 through and other gases, dusts, and fumes in the § 75.1107–16. fumes from throughout the worked-out worked-out area. areas are continuously diluted and (1) When a noncombustible structure routed into a return air course or to the § 75.335 Construction of seals. or area is used, these installations shall surface of the mine; or (a)(1) Each seal constructed after be— (2) Sealed. November 15, 1992, shall be— (i) Ventilated with intake air that is (b)(1) During pillar recovery a bleeder (i) Constructed of solid concrete coursed into a return air course or to the system shall be used to control the air blocks at least 6 by 8 by 16 inches, laid surface and that is not used to ventilate passing through the area and to in a transverse pattern with mortar working places; or continuously dilute and move methane- between all joints; (ii) Ventilated with intake air that is air mixtures and other gases, dusts, and (ii) Hitched into solid ribs to a depth monitored for carbon monoxide or fumes from the worked-out area away of at least 4 inches and hitched at least smoke by an AMS installed and from active workings and into a return 4 inches into the floor; operated according to § 75.351. air course or to the surface of the mine. (iii) At least 16 inches thick. When Monitoring of intake air ventilating (2) After pillar recovery a bleeder the thickness of the seal is less than 24 battery charging stations shall be done system shall be maintained to provide inches and the width is greater than 16 with sensors not affected by hydrogen; ventilation to the worked-out area, or feet or the height is greater than 10 feet, or the area shall be sealed. a pilaster shall be interlocked near the (iii) Ventilated with intake air and (c) The approved ventilation plan center of the seal. The pilaster shall be equipped with sensors to monitor for shall specify the following: at least 16 inches by 32 inches; and heat and for carbon monoxide or smoke. (1) The design and use of bleeder (iv) Coated on all accessible surfaces Monitoring of intake air ventilating systems; with flame-retardant material that will battery charging stations shall be done 9836 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations with sensors not affected by hydrogen. (1) Hydrostatic relief valves installed as to be secure and not susceptible to The sensors shall deenergize power to on vaporizers and on storage tanks shall alteration. the installation, activate a visual and be vented; and (iii) Retain the record of calibration audible alarm located outside of and on (2) Fuel storage tanks shall be located tests for 1 year from the date of the test. the intake side of the enclosure, and or protected to prevent fuel from leaking Records shall be retained at a surface activate doors that will automatically into the mine. location at the mine and made available close when either of the following (f) Following any period of 8 hours or for inspection by authorized occurs: more during which a heater does not representatives of the Secretary and the (A) The temperature in the operate, the heater and its associated representative of miners. noncombustible structure reaches 165 components shall be examined within (b)(1) When the methane °F; or its first hour of operation. Additionally, concentration at any methane monitor (B) The carbon monoxide each heater and its components shall be reaches 1.0 percent the monitor shall concentration reaches 10 parts per examined at least once each shift that give a warning signal. million above the ambient level for the the heater operates. The examination (2) The warning signal device of the area, or the optical density of smoke shall include measurement of the methane monitor shall be visible to a reaches 0.022 per meter. At least every carbon monoxide concentration at the person who can deenergize the 31 days, sensors installed to monitor for bottom of each shaft, slope, or in the equipment on which the monitor is carbon monoxide shall be calibrated drift opening where air is being heated. mounted. with a known concentration of carbon The measurements shall be taken by a (c) The methane monitor shall monoxide and air sufficient to activate person designated by the operator or by automatically deenergize the machine the closing door, or each smoke sensor a carbon monoxide sensor that is on which it is mounted when— shall be tested to determine that it calibrated with a known concentration (1) The methane concentration at any functions correctly. of carbon monoxide and air at least once methane monitor reaches 2.0 percent; or (2) The monitor is not operating (2) When a fire suppression system is every 31 days. When the carbon properly. used, these installations shall be— monoxide concentration at this location (i) Ventilated with intake air that is reaches 50 parts per million, the heater § 75.343 Underground shops. coursed into a return air course or to the causing the elevated carbon monoxide (a) Underground shops shall be surface and that is not used to ventilate level shall be shut down. working places; or equipped with an automatic fire (ii) Ventilated with intake air that is § 75.342 Methane monitors. suppression system meeting the monitored for carbon monoxide or requirements of § 75.1107–3 through (a)(1) MSHA approved methane § 75.1107–16, or be enclosed in a smoke by an AMS installed and monitors shall be installed on all face operated according to § 75.351. noncombustible structure or area. cutting machines, continuous miners, (b) Underground shops shall be Monitoring of intake air ventilating longwall face equipment, loading ventilated with intake air that is coursed battery charging stations shall be done machines, and other mechanized directly into a return air course. with sensors not affected by hydrogen. equipment used to extract or load coal (b) This section does not apply to— within the working place. § 75.344 Compressors. (1) Rectifiers and power centers with (2) The sensing device for methane (a) Except compressors that are transformers that are either dry-type or monitors on longwall shearing machines components of equipment such as contain nonflammable liquid, if they are shall be installed at the return air end locomotives and rock dusting machines located at or near the section and are of the longwall face. An additional and compressors of less than 5 moved as the working section advances sensing device also shall be installed on horsepower, electrical compressors or retreats; the longwall shearing machine, including those that may start (2) Submersible pumps; downwind and as close to the cutting automatically shall be: (3) Permissible pumps and associated head as practicable. An alternative (1) Continuously attended by a person permissible switchgear; location or locations for the sensing designated by the operator who can see (4) Pumps located on or near the device required on the longwall the compressor at all times during its section and that are moved as the shearing machine may be approved in operation. Any designated person working section advances or retreats; attending the compressor shall be (5) Pumps installed in anthracite the ventilation plan. (3) The sensing devices of methane capable of activating the fire mines; and (6) Small portable pumps. monitors shall be installed as close to suppression system and deenergizing or the working face as practicable. shutting-off the compressor in the event § 75.341 Direct-fired intake air heaters. (4) Methane monitors shall be of a fire; or, (a) If any system used to heat intake maintained in permissible and proper (2) Enclosed in a noncombustible air malfunctions, the heaters affected operating condition and shall be structure or area which is ventilated by shall switch off automatically. calibrated with a known air-methane intake air coursed directly into a return (b) Thermal overload devices shall mixture at least once every 31 days. To air course or to the surface and protect the blower motor from assure that methane monitors are equipped with sensors to monitor for overheating. properly maintained and calibrated, the heat and for carbon monoxide or smoke. (c) The fuel supply shall turn off operator shall: The sensors shall deenergize power to automatically if a flame-out occurs. (i) Use persons properly trained in the the compressor, activate a visual and (d) Each heater shall be located or maintenance, calibration, and audible alarm located outside of and on guarded to prevent contact by persons permissibility of methane monitors to the intake side of the enclosure, and and shall be equipped with a screen at calibrate and maintain the devices. activate doors to automatically enclose the inlet to prevent combustible (ii) Maintain a record of all calibration the noncombustible structure or area materials from passing over the burner tests of methane monitors. Records shall when either of the following occurs: units. be maintained in a secure book that is (i) The temperature in the (e) If intake air heaters use liquefied not susceptible to alteration or noncombustible structure or area fuel systems— electronically in a computer system so reaches 165 °F. Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9837

(ii) The carbon monoxide entries, and to assure that air therein of air, or inby the location where the concentration reaches 10 parts per shall contain less than 1.0 volume per split of air is used to ventilate seals or million above the ambient level for the centum of methane. worked-out areas. area, or the optical density of smoke (c) Electrical installations. If used to reaches 0.022 per meter. At least once § 75.351 Atmospheric monitoring system monitor the intake air ventilating (AMS). every 31 days, sensors installed to underground transformer stations, monitor for carbon monoxide shall be (a) Minimum requirements. An AMS battery charging stations, substations, calibrated with a known concentration shall consist of sensors to monitor the rectifiers, or water pumps under of carbon monoxide and air sufficient to mine atmosphere and instruments at a § 75.340(a)(2), at least one sensor shall activate the closing door, and each surface location designated by the be installed to monitor the mine smoke sensor shall be tested to operator to receive information from the atmosphere for carbon monoxide or determine that it functions correctly. monitoring sensors. Each AMS installed smoke at least 50 feet and no more than (b) Compressors, except those in accordance with §§ 75.323(d)(1)(ii), 100 feet downstream in the direction of exempted in paragraph (a), shall be 75.340(a)(2) and 75.362(f) shall do the air flow. equipped with a heat activated fire following: (d) Signals and alarms. (1) A person suppression system meeting the (1) Monitor for circuit continuity and designated by the operator shall be at a requirements of 75.1107–3 through sensor function, and identify at the surface location where the signals and 75.1107–16. designated surface location any alarms from the AMS can always be (c) Two portable fire extinguishers or activated or malfunctioning sensor. seen or heard while anyone is (2) Signal a designated surface one extinguisher having at least twice underground. This person shall have location at the mine when any the minimum capacity specified for a access to two-way communication with interruption of circuit continuity occurs portable fire extinguisher in § 75.1100– working sections and with other or any sensor malfunctions. 1(e) shall be provided for each identifiable duty stations underground. (3) Signal affected working sections compressor. A mine map showing the underground and the designated surface location (d) In addition to electrical monitoring system shall be posted at the when— compressors, this section shall apply to surface location. diesel compressors. (i) The carbon monoxide concentration at any carbon monoxide (2) If a signal from any AMS sensor is (e) Notwithstanding the requirements activated, the monitor producing the of § 75.1107–4, upon activation of any sensor reaches 5 parts per million above the established ambient level for that signal shall be identified, an fire suppression system used under examination shall be made to determine paragraph (b) of this section, the area; or (ii) The methane concentration at any the cause of the activation, and compressor shall be automatically appropriate action shall be taken. deenergized or automatically shut off. methane monitoring station exceeds the maximum allowable concentration as (e) Sensors. (1) Each carbon monoxide § 75.350 Air courses and belt haulage specified for that location in § 75.323. sensor shall be capable of detecting ± entries. (4) Activate alarms at a designated carbon monoxide in air at a level of 1 In any coal mine opened after March surface location and affected working part per million throughout the 30, 1970, the entries used as intake and sections when the carbon monoxide operating range. return air courses shall be separated concentration at any carbon monoxide (2) Each methane sensor shall be from belt haulage entries, and each sensor reaches 10 parts per million capable of detecting 1.0 percent ± operator of such mine shall limit the above the established ambient level for methane in air with an accuracy of 0.2 velocity of the air coursed through belt the area or when the optical density of percent methane. haulage entries to the amount necessary smoke at any smoke sensor reaches 0.05 (3) Each smoke sensor shall be to provide an adequate supply of oxygen per meter. capable of detecting the optical density in such entries, and to insure that the air (b) Return splits. (1) If used to monitor of smoke with an accuracy of ±0.005 per therein shall contain less than 1.0 return air splits under § 75.362(f), AMS meter. volume per centum of methane, and sensors shall monitor the mine (f) Testing and calibration. At least such air shall not be used to ventilate atmosphere for percentage of methane once every 31 days— active working places. Whenever an in each return split of air from each (1) Each carbon monoxide sensor authorized representative of the working section between the last shall be calibrated with a known Secretary finds, in the case of any coal working place, or longwall or shortwall concentration of carbon monoxide and mine opened on or prior to March 30, face, ventilated by that air split and the air sufficient to activate an alarm; 1970, that has been developed with junction of that return air split with (2) Each smoke sensor shall be more than two entries, that the another air split, seal, or worked-out functionally tested; conditions in the entries, other than belt area. If auxiliary fans and tubing are (3) Each methane sensor shall be haulage entries, are such as to permit used, the sensor also shall be located calibrated with a known methane-air adequately the coursing of intake or outby the auxiliary fan discharge. mixture; and return air through such entries: (2) If used to monitor air splits under (4) Each oxygen sensor shall be (a) The belt haulage entries shall not § 75.323(d)(1)(ii), AMS sensors shall calibrated with air having a known be used to ventilate, unless such entries monitor the mine atmosphere at the oxygen concentration. are necessary to ventilate, active following locations: (g) Intrinsic Safety. Components of working places, and (i) In the return air course opposite AMS installed in areas where (b) When the belt haulage entries are the section loading point or, if auxiliary permissible equipment is required shall not necessary to ventilate the active fans and tubing are used, in the return be intrinsically safe. working places, the operator of such air course outby the auxiliary fans and (h) Recordkeeping. If a signal device mine shall limit the velocity of the air a point opposite the section loading or alarm is activated, a record shall be coursed through the belt haulage entries point. made of the date, time, type of sensor, to the amount necessary to provide an (ii) Immediately inby the location and the reason for its activation. Also adequate supply of oxygen in such where the split of air meets another split the maximum concentration detected at 9838 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations the sensor producing the signal shall be the working places, approaches to of air entering each of the following recorded. worked-out areas and ventilation areas if anyone is scheduled to work in (i) Retention period. Records shall be controls on these sections and in these the areas during the oncoming shift: retained for at least 1 year at a surface areas, and the examination shall include (1) In the last open crosscut of each location at the mine and made available tests of the roof, face and rib conditions set of entries or rooms on each working for inspection by authorized on these sections and in these areas. section and areas where mechanized representatives of the Secretary and (4) Approaches to worked-out areas mining equipment is being installed or representatives of miners. along intake air courses and at the removed. The last open crosscut is the entries used to carry air into worked-out crosscut in the line of pillars containing § 75.352 Return air courses. areas if the intake air passing the the permanent stoppings that separate Entries used as return air courses approaches is used to ventilate working the intake air courses and the return air shall be separated from belt haulage sections where anyone is scheduled to courses. entries by permanent ventilation work during the oncoming shift. The (2) On each longwall or shortwall in controls. examination of the approaches to the the intake entry or entries at the intake worked-out areas shall be made in the end of the longwall or shortwall face § 75.360 Preshift examination. intake air course immediately inby and immediately outby the face and the (a)(1) Except as provided in paragraph outby each entry used to carry air into velocity of air at each end of the face at (a)(2) of this section, a certified person the worked-out area. An examination of the locations specified in the approved designated by the operator shall make a the entries used to carry air into the ventilation plan. preshift examination within 3 hours worked-out areas shall be conducted at (3) At the intake end of any pillar preceding the beginning of any 8-hour a point immediately inby the line— interval during which any person is intersection of each entry with the (i) If a single split of air is used, in the scheduled to work or travel intake air course. intake entry furthest from the return air underground. The operator shall (5) Seals along intake air courses course, immediately outby the first open establish the 8-hour intervals of time where intake air passes by a seal to crosscut outby the line of pillars being subject to the required preshift ventilate working sections where mined; or examinations. No person other than anyone is scheduled to work during the (ii) If a split system is used, in the certified examiners may enter or remain oncoming shift. intake entries of each split immediately in any underground area unless a (6)(i) Entries and rooms developed inby the split point. preshift examination has been after November 15, 1992, and developed (d) The district manager may require completed for the established 8-hour more than 2 crosscuts off an intake air the certified person to examine other period. course without permanent ventilation areas of the mine or examine for other (2) Preshift examinations of areas controls where intake air passes through hazards during the preshift where pumpers are scheduled to work or by these entries or rooms to reach a examination. or travel shall not be required prior to working section where anyone is (e) Certification. At each working the pumper entering the areas if the scheduled to work during the oncoming place examined, the person doing the pumper is a certified person and the shift; and, preshift examination shall certify by pumper conducts an examination for (ii) Entries and rooms developed after initials, date, and the time, that the hazardous conditions, tests for methane November 15, 1992, and driven more examination was made. In areas and oxygen deficiency and determines if than 20 feet off an intake air course required to be examined outby a the air is moving in its proper direction without a crosscut and without working section, the certified person in the area where the pumper works or permanent ventilation controls where shall certify by initials, date, and the travels. The examination of the area intake air passes through or by these time at enough locations to show that must be completed before the pumper entries or rooms to reach a working the entire area has been examined. performs any other work. A record of all section where anyone is scheduled to (f) Recordkeeping. A record of the hazardous conditions found by the work during the oncoming shift. results of each preshift examination, pumper shall be made and retained in (7) Where unattended diesel including a record of hazardous accordance with § 75.363. equipment is to operate or areas where conditions and their locations found by (b) The person conducting the preshift trolley wires or trolley feeder wires are the examiner during each examination examination shall examine for to be or will remain energized during and of the results and locations of air hazardous conditions, test for methane the oncoming shift. and methane measurements, shall be and oxygen deficiency, and determine if (8) High spots along intake air courses made on the surface before any persons, the air is moving in its proper direction where methane is likely to accumulate, other than certified persons conducting at the following locations: if equipment will be operated in the examinations required by this subpart, (1) Roadways, travelways and track area during the shift. enter any underground area of the mine. haulageways where persons are (9) Underground electrical The results of methane tests shall be scheduled, prior to the beginning of the installations referred to in § 75.340(a), recorded as the percentage of methane preshift examination, to work or travel except those pumps listed in § 75.340 measured by the examiner. The record during the oncoming shift. (b)(2) through (b)(6), and areas where shall be made by the certified person (2) Belt conveyors that will be used to compressors subject to § 75.344 are who made the examination or by a transport persons during the oncoming installed if the electrical installation or person designated by the operator. If the shift and the entries in which these belt compressor is or will be energized record is made by someone other than conveyors are located. during the shift. the examiner, the examiner shall verify (3) Working sections and areas where (10) Other areas where work or travel the record by initials and date by or at mechanized mining equipment is being during the oncoming shift is scheduled the end of the shift for which the installed or removed, if anyone is prior to the beginning of the preshift examination was made. A record shall scheduled to work on the section or in examination. also be made by a certified person of the the area during the oncoming shift. The (c) The person conducting the preshift action taken to correct hazardous scope of the examination shall include examination shall determine the volume conditions found during the preshift Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9839 examination. All preshift and corrective made before production begins on a (iii) At 20-minute intervals, or more action records shall be countersigned by section. Deficiencies in dust controls often if required in the approved the mine foreman or equivalent mine shall be corrected before production ventilation plan at specific locations, official by the end of the mine foreman’s begins or resumes. The examination during the operation of equipment in or equivalent mine official’s next shall include air quantities and the working place. regularly scheduled working shift. The velocities, water pressures and flow (2) These methane tests shall be made records required by this section shall be rates, excessive leakage in the water at the face from under permanent roof made in a secure book that is not delivery system, water spray numbers support, using extendable probes or susceptible to alteration or and orientations, section ventilation and other acceptable means. When longwall electronically in a computer system so control device placement, and any other or shortwall mining systems are used, as to be secure and not susceptible to dust suppression measures required by these methane tests shall be made at the alteration. the ventilation plan. Additional shearer, the plow, or the cutting head. (g) Retention period. Records shall be measurements of the air velocity and When mining has been stopped for more retained at a surface location at the mine quantity, water pressure and flow rates than 20 minutes, methane tests shall be for at least 1 year and shall be made are not required if continuous conducted prior to the start up of available for inspection by authorized monitoring of these controls is used and equipment. representatives of the Secretary and the indicates that the dust controls are (e) If auxiliary fans and tubing are representative of miners. functioning properly. used, they shall be inspected frequently. (b) During each shift that coal is (f) During each shift that coal is § 75.361 Supplemental examination. produced, a certified person shall produced and at intervals not exceeding (a) Except for certified persons examine for hazardous conditions along 4 hours, tests for methane shall be made conducting examinations required by each belt conveyor haulageway where a by a certified person or by an this subpart, within 3 hours before belt conveyor is operated. This atmospheric monitoring system (AMS) anyone enters an area in which a examination may be conducted at the in each return split of air from each preshift examination has not been made same time as the preshift examination of working section between the last for that shift, a certified person shall belt conveyors and belt conveyor working place, or longwall or shortwall examine the area for hazardous haulageways, if the examination is face, ventilated by that split of air and conditions, determine whether the air is conducted within 3 hours before the the junction of the return air split with traveling in its proper direction and at oncoming shift. another air split, seal, or worked-out its normal volume, and test for methane (c) Persons conducting the on-shift area. If auxiliary fans and tubing are and oxygen deficiency. examination shall determine at the used, the tests shall be made at a (b) Certification. At each working following locations: location outby the auxiliary fan place examined, the person making the (1) The volume of air in the last open discharge. supplemental examination shall certify crosscut of each set of entries or rooms (g) Certification. (1) The person by initials, date, and the time, that the on each section and areas where conducting the on-shift examination in examination was made. In areas mechanized mining equipment is being belt haulage entries shall certify by required to be examined outby a installed or removed. The last open initials, date, and time that the working section, the certified person crosscut is the crosscut in the line of examination was made. The certified shall certify by initials, date, and the pillars containing the permanent person shall certify by initials, date, and time at enough locations to show that stoppings that separate the intake air the time at enough locations to show the entire area has been examined. courses and the return air courses. that the entire area has been examined. (2) The volume of air on a longwall (2) The person directing the on-shift § 75.362 On-shift examination. or shortwall, including areas where examination to assure compliance with (a) (1) At least once during each shift, longwall or shortwall equipment is the respirable dust control parameters or more often if necessary for safety, a being installed or removed, in the intake specified in the mine ventilation plan certified person designated by the entry or entries at the intake end of the shall certify by initials, date, and time operator shall conduct an on-shift longwall or shortwall. that the examination was made. examination of each section where (3) The velocity of air at each end of anyone is assigned to work during the the longwall or shortwall face at the § 75.363 Hazardous conditions; posting, correcting and recording. shift and any area where mechanized locations specified in the approved mining equipment is being installed or ventilation plan. (a) Any hazardous condition found by removed during the shift. The certified (4) The volume of air at the intake end the mine foreman or equivalent mine person shall check for hazardous of any pillar line— official, assistant mine foreman or conditions, test for methane and oxygen (i) Where a single split of air is used equivalent mine official, or other deficiency, and determine if the air is in the intake entry furthest from the certified persons designated by the moving in its proper direction. return air course immediately outby the operator for the purposes of conducting (2) A person designated by the first open crosscut outby the line of examinations under this subpart D, shall operator shall conduct an examination pillars being mined; or be posted with a conspicuous danger to assure compliance with the respirable (ii) Where a split system is used in the sign where anyone entering the areas dust control parameters specified in the intake entries of each split immediately would pass. A hazardous condition, mine ventilation plan. In those inby the split point. other than one detected during a instances when a shift change is (d) (1) A qualified person shall make preshift examination or an examination accomplished without an interruption tests for methane— conducted following a fan stoppage and in production on a section, the (i) At the start of each shift at each restart under § 75.313(d)(1)(i), shall be examination shall be made anytime working place before electrically corrected immediately or the area shall within 1 hour of the shift change. In operated equipment is energized; and remain posted until the hazardous those instances when there is an (ii) Immediately before equipment is condition is corrected. If the condition interruption in production during the energized, taken into, or operated in a creates an imminent danger, everyone shift change, the examination shall be working place; and except those persons referred to in 9840 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations section 104(c) of the Act shall be (2) At least every 7 days, a certified split of air immediately before it enters withdrawn from the area affected to a person shall evaluate the effectiveness the main returns, and where the air safe area until the hazardous condition of bleeder systems required by § 75.334 leaves the main returns; and is corrected. Only persons designated by as follows: (3) Test for methane in the return the operator to correct or evaluate the (i) Measurements of methane and entry nearest each set of seals condition may enter the posted area. oxygen concentrations and air quantity immediately after the air passes the (b) A record shall be made of any and a test to determine if the air is seals. hazardous condition found. This record moving in its proper direction shall be (d) Hazardous conditions shall be shall be kept in a book maintained for made where air enters the worked-out corrected immediately. If the condition this purpose on the surface at the mine. area. creates an imminent danger, everyone The record shall be made by the (ii) Measurements of methane and except those persons referred to in completion of the shift on which the oxygen concentrations and air quantity § 104(c) of the Act shall be withdrawn hazardous condition is found and shall and a test to determine if the air is from the area affected to a safe area until include the nature and location of the moving in the proper direction shall be the hazardous condition is corrected. hazardous condition and the corrective made immediately before the air enters (e) The weekly examination may be action taken. This record shall not be a return split of air. conducted at the same time as the required for shifts when no hazardous (iii) At least one entry of each set of preshift or on-shift examinations. conditions are found or for hazardous bleeder entries used as part of a bleeder (f) (1) The weekly examination is not conditions found during the preshift or system under § 75.334 shall be traveled required during any 7 day period in weekly examinations inasmuch as these in its entirety. Measurements of which no one enters any underground examinations have separate methane and oxygen concentrations and area of the mine. recordkeeping requirements. air quantities and a test to determine if (2) Except for certified persons (c) The record shall be made by the the air is moving in the proper direction required to make examinations, no one certified person who conducted the shall be made at the measurement point shall enter any underground area of the examination or a person designated by locations specified in the mine mine if a weekly examination has not the operator. If made by a person other ventilation plan to determine the been completed within the previous 7 than the certified person, the certified effectiveness of the bleeder system. days. person shall verify the record by initials (iv) In lieu of the requirements of (g) Certification. The person making and date by or at the end of the shift for paragraphs (a)(2)(i) and (iii) of this which the examination was made. the weekly examinations shall certify by section, an alternative method of initials, date, and the time that the Records shall be countersigned by the evaluation may be specified in the mine foreman or equivalent mine examination was made. Certifications ventilation plan provided the alternative and times shall appear at enough official by the end of the mine foreman’s method results in proper evaluation of or equivalent mine official’s next locations to show that the entire area the effectiveness of the bleeder system. has been examined. regularly scheduled working shift. The (b) Hazardous conditions. At least (h) Recordkeeping. At the completion record shall be made in a secure book every 7 days, an examination for of any shift during which a portion of that is not susceptible to alteration or hazardous conditions at the following a weekly examination is conducted, a electronically in a computer system so locations shall be made by a certified record of the results of each weekly as to be secure and not susceptible to person designated by the operator: examination, including a record of alteration. (1) In at least one entry of each intake hazardous conditions found during each (d) Retention period. Records shall be air course, in its entirety, so that the examination and their locations, the retained at a surface location at the mine entire air course is traveled. for at least 1 year and shall be made (2) In at least one entry of each return corrective action taken, and the results available for inspection by authorized air course, in its entirety, so that the and location of air and methane representatives of the Secretary and the entire air course is traveled. measurements, shall be made. The representative of miners. (3) In each longwall or shortwall results of methane tests shall be travelway in its entirety, so that the recorded as the percentage of methane § 75.364 Weekly examination. entire travelway is traveled. measured by the examiner. The record (a) Worked-out areas. (1) At least (4) At each seal along return and shall be made by the person making the every 7 days, a certified person shall bleeder air courses and at each seal examination or a person designated by examine unsealed worked-out areas along intake air courses not examined the operator. If made by a person other where no pillars have been recovered by under § 75.360(b)(5). than the examiner, the examiner shall traveling to the area of deepest (5) In each escapeway so that the verify the record by the initials and date penetration; measuring methane and entire escapeway is traveled. by or at the end of the shift for which oxygen concentrations and air quantities (6) On each working section not the examination was made. The record and making tests to determine if the air examined under § 75.360(b)(3) during shall be countersigned by the mine is moving in the proper direction in the the previous 7 days. foreman or equivalent mine official by area. The locations of measurement (7) At each water pump not examined the end of the mine foreman’s or points where tests and measurements during a preshift examination equivalent mine official’s next regularly will be performed shall be included in conducted during the previous 7 days. scheduled working shift. The records the mine ventilation plan and shall be (c) Measurements and tests. At least required by this section shall be made adequate in number and location to every 7 days, a certified person shall— in a secure book that is not susceptible assure ventilation and air quality in the (1) Determine the volume of air to alteration or electronically in a area. Air quantity measurements shall entering the main intakes and in each computer system so as to be secure and also be made where the air enters and intake split; not susceptible to alteration. leaves the worked-out area. An (2) Determine the volume of air and (i) Retention period. Records shall be alternative method of evaluating the test for methane in the last open retained at a surface location at the mine ventilation of the area may be approved crosscut in any pair or set of developing for at least 1 year and shall be made in the ventilation plan. entries or rooms, in the return of each available for inspection by authorized Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9841 representatives of the Secretary and the (c) (1) The district manager will notify (c) Methods of protecting main mine representative of miners. the operator in writing of the approval fans and associated components from or denial of approval of a proposed the forces of an underground explosion § 75.370 Mine ventilation plan; submission ventilation plan or proposed revision. A if a 15-foot offset from the nearest side and approval. copy of this notification will be sent to of the mine opening is not provided (see (a) (1) The operator shall develop and the representative of miners by the § 75.310(a)(6)); and the methods of follow a ventilation plan approved by district manager. protecting main mine fans and intake air the district manager. The plan shall be (2) If the district manager denies openings if combustible material will be designed to control methane and approval of a proposed plan or revision, within 100 feet of the area surrounding respirable dust and shall be suitable to the deficiencies of the plan or revision the fan or these openings (see the conditions and mining system at the shall be specified in writing and the § 75.311(f)). mine. The ventilation plan shall consist operator will be provided an (d) Persons that will be permitted to of two parts, the plan content as opportunity to discuss the deficiencies enter the mine, the work these persons prescribed in § 75.371 and the with the district manager. will do while in the mine, and electric ventilation map with information as (d) No proposed ventilation plan shall power circuits that will be energized prescribed in § 75.372. Only that portion be implemented before it is approved by when a back-up fan system is used that of the map which contains information the district manager. Any intentional does not provide the ventilating required under § 75.371 will be subject change to the ventilation system that quantity provided by the main mine fan to approval by the district manager. alters the main air current or any split (see § 75.311(c)). (2) The proposed ventilation plan and of the main air current in a manner that (e) The locations and operating any revision to the plan shall be could materially affect the safety and conditions of booster fans installed in submitted in writing to the district health of the miners, or any change to anthracite mines (see § 75.302). manager. When revisions to a the information required in § 75.371 (f) Section and face ventilation ventilation plan are proposed, only the shall be submitted to and approved by systems used, including drawings revised pages, maps, or sketches of the the district manager before illustrating how each system is used, plan need to be submitted. When implementation. and a description of each different dust required in writing by the district (e) Before implementing an approved suppression system used on equipment manager, the operator shall submit a ventilation plan or a revision to a on working sections. fully revised plan by consolidating the ventilation plan, persons affected by the (g) Locations where the air quantities plan and all revisions in an orderly revision shall be instructed by the must be greater than 3,000 cubic feet per manner and by deleting all outdated operator in its provisions. minute (see § 75.325(a)(1)). (h) In anthracite mines, locations material. (f) The approved ventilation plan and (3) (i) The mine operator shall notify where the air quantities must be greater any revisions shall be— than 1,500 cubic feet per minute (see the representative of miners at least 5 (1) Provided upon request to the days prior to submission of a mine § 75.325(e)(1)). representative of miners by the operator (i) Working places and working faces ventilation plan and any revision to a following notification of approval; mine ventilation plan. If requested, the other than those where coal is being cut, (2) Made available for inspection by mined, drilled for blasting or loaded, mine operator shall provide a copy to the representative of miners; and the representative of miners at the time where a minimum air quantity will be (3) Posted on the mine bulletin board maintained, and the air quantity at those of notification. In the event of a within 1 working day following situation requiring immediate action on locations (see § 75.325(a)(1)). notification of approval. The approved (j) The operating volume of machine a plan revision, notification of the plan and revisions shall remain posted mounted dust collectors or diffuser fans, revision shall be given, and if requested, on the bulletin board for the period that if used (see § 75.325(a)(3)). a copy of the revision shall be provided, they are in effect. (k) The minimum mean entry air to the representative of miners by the (g) The ventilation plan for each mine velocity in exhausting face ventilation operator at the time of submittal; shall be reviewed every 6 months by an systems where coal is being cut, mined, (ii) A copy of the proposed ventilation authorized representative of the drilled for blasting, or loaded, if the plan, and a copy of any proposed Secretary to assure that it is suitable to velocity will be less than 60 feet per revision, submitted for approval shall be current conditions in the mine. minute. Other working places where made available for inspection by the coal is not being cut, mined, drilled for § 75.371 Mine ventilation plan; contents. representative of miners; and blasting or loaded, where at least 60 feet (iii) A copy of the proposed The mine ventilation plan shall per minute or some other minimum ventilation plan, and a copy of any contain the information described below mean entry air velocity will be proposed revision, submitted for and any additional provisions required maintained (see § 75.326). approval shall be posted on the mine by the district manager: (l) The maximum distance if greater bulletin board at the time of submittal. (a) The mine name, company name, than 10 feet from each working face at The proposed plan or proposed revision mine identification number, and the which face ventilation control devices shall remain posted until it is approved, name of the individual submitting the will be installed (see § 75.330(b)(2)). The withdrawn or denied. plan information. working places other than those where (b) Following receipt of the proposed (b) Planned main mine fan stoppages, coal is being cut, mined, drilled for plan or proposed revision, the other than those scheduled for testing, blasting or loaded, where face representative of miners may submit maintenance or adjustment, including ventilation control devices will be used timely comments to the district procedures to be followed during these (see § 75.330(b)(1)(ii). manager, in writing, for consideration stoppages and subsequent restarts (see (m) The volume of air required in the during the review process. A copy of § 75.311(a)) and the type of device to be last open crosscut or the quantity of air these comments shall also be provided used for monitoring main mine fan reaching the pillar line if greater than to the operator by the district manager pressure, if other than a pressure 9,000 cubic feet per minute (see upon request. recording device (see 75.310(a)(4)). § 75.325(b)). 9842 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations

(n) In anthracite mines, the volume of obstructions such as roof falls and of not less than 100 nor more than 500 air required in the last open crosscut or standing water (see § 75.334(c)(3)). feet to the inch. A registered engineer or the quantity of air reaching the pillar (bb) The location of ventilation a registered surveyor shall certify that line if greater than 5,000 cubic feet per devices such as regulators, stoppings the map is accurate. minute (see § 75.325(e)(2)). and bleeder connectors used to control (2) In addition to the informational (o) Locations where separations of air movement through worked-out areas requirements of this section the map intake and return air courses will be (see § 75.334(c)(4)). The location and may also be used to depict and explain built and maintained to other than the sequence of construction of proposed plan contents that are required in third connecting crosscut outby each seals for each worked-out area. (see § 75.371. Information shown on the map working face (see § 75.333(b)(1)). § 75.334(e)). to satisfy the requirements of § 75.371 (p) The volume of air required at the (cc) In mines with a demonstrated shall be subject to approval by the intake to the longwall sections, if history of spontaneous combustion: a district manager. different than 30,000 cubic feet per description of the measures that will be (b) The map shall contain the minute (see § 75.325(c)). used to detect methane, carbon following information: (q) The velocities of air on a longwall monoxide, and oxygen concentration (1) The mine name, company name, or shortwall face, and the locations during and after pillar recovery and in mine identification number, a legend where the velocities must be measured worked-out areas where no pillars have identifying the scale of the map and (see § 75.325(c)(2)). been recovered (see § 75.334(f)(1); and, symbols used, and the name of the individual responsible for the (r) The minimum quantity of air that the actions which will be taken to information on the map. will be provided during the installation protect miners from the hazards associated with spontaneous (2) All areas of the mine, including and removal of mechanized mining sealed and unsealed worked-out areas. equipment, the location where this combustion (see § 75.334(f)(2). If a bleeder system will not be used, the (3) All known mine workings that are quantity will be provided, and the located in the same coalbed within methods that will be used to control ventilation controls that will be used. 1,000 feet of existing or projected spontaneous combustion, (see § 75.325(d)). workings. These workings may be accumulations of methane-air mixtures, (s) The locations and frequency of the shown on a mine map with a scale other and other gases, dusts, and fumes in the methane tests if required more often by than that required by paragraph (a) of § 75.362(d)(1)(iii) (see § 75.362 worked-out area (see § 75.334(f)(3)). (dd) The location of all horizontal this section, if the scale does not exceed (d)(1)(iii). 2,000 feet to the inch and is specified on degasification holes that are longer than (t) The locations where samples for the map. 1,000 feet and the location of all vertical ‘‘designated areas’’ will be collected, (4) The locations of all known mine including the specific location of each degasification holes. workings underlying and overlying the (ee) If methane drainage systems are sampling device, and the respirable dust mine property and the distance between used, a detailed sketch of each system, control measures used at the dust the mine workings. generating sources for these locations including a description of safety (5) The locations of all known oil and (see § 70.208 of this chapter). precautions used with the systems. gas wells and all known drill holes that (u) The methane and dust control (ff) A description of the methods and penetrate the coalbed being mined. systems at underground dumps, materials to be used to seal worked-out (6) The locations of all main mine crushers, transfer points, and areas if those methods or materials will fans, installed backup fans and motors, haulageways. be different from those specified by and each fan’s specifications, including § 75.335(a)(1). (v) Areas in trolley haulage entries size, type, model number, manufacturer, (gg) The alternative location for the where the air velocity will be greater operating pressure, motor horsepower, additional sensing device if the device than 250 feet per minute and the and revolutions per minute. will not be installed on the longwall velocity in these areas (see § 75.327(b)). (7) The locations of all surface mine shearing machine (see § 75.342(a)(2)). (w) Locations where entries will be openings and the direction and quantity (hh) The ambient level in parts per of air at each opening. advanced less than 20 feet from the inby million of carbon monoxide, and the rib without a crosscut being provided (8) The elevation at the top and method for determining the ambient bottom of each shaft and slope, and where a line brattice will be required. level, in all areas where carbon (see § 75.333(g)). shaft and slope dimensions, including monoxide sensors are installed. depth and length. (x) A description of the bleeder (ii) The distance that separation system to be used, including its design (9) The direction of air flow in all between the primary escapeway and the underground areas of the mine. (see § 75.334). belt or track haulage entries will be (10) The locations of all active (y) The means for determining the maintained if other than to the first working sections and the four-digit effectiveness of bleeder systems (see connecting crosscut outby the section identification number for each § 75.334(c)(2)). loading point (see § 75.380(g)). mechanized mining unit (MMU). (z) The locations where measurements (jj) In anthracite mines, the (11) The location of all escapeways. of methane and oxygen concentrations dimensions of escapeways where the (12) The locations of all ventilation and air quantities and tests to determine pitch of the coal seam does not permit controls, including permanent whether the air is moving in the proper escapeways to be maintained 4 feet by stoppings, overcasts, undercasts, direction will be made to evaluate the 5 feet and the locations where these regulators, seals, airlock doors, ventilation of nonpillared worked-out dimensions must be maintained (see haulageway doors and other doors, areas (see § 75.364 (a)(1)) and the § 75.381(c)(4)). except temporary ventilation controls effectiveness of bleeder systems (see on working sections. § 75.364 (a)(2)(iii). Alternative methods § 75.372 Mine ventilation map. (13) The direction and quantity of of evaluation of the effectiveness of (a)(1) At intervals not exceeding 12 air— bleeder systems (§ 75.364 (a)(2)(iv)). months, the operator shall submit to the (i) Entering and leaving each split; (aa) The means for adequately district manager 3 copies of an up-to- (ii) In the last open crosscut of each maintaining bleeder entries free of date map of the mine drawn to a scale set of entries and rooms; and Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9843

(iii) At the intake end of each pillar (c) The two separate and distinct material cars containing rock dust or line, including any longwall or escapeways required by this section roof control supplies, or is to be used for shortwall. shall not end at a common shaft, slope, the evacuation of miners off the section (14) Projections for at least 12 months or drift opening, except that multiple in the event of an emergency. In any of anticipated mine development, compartment shafts or slopes separated instance, escapeways shall be of proposed ventilation controls, proposed by walls constructed of noncombustible sufficient width to enable miners, bleeder systems, and the anticipated material may be used as separate and including disabled persons, to escape location of intake and return air courses, distinct passageways. quickly in an emergency. When there is belt entries, and escapeways. (d) Each escapeway shall be— a need to determine whether sufficient (15) The locations of existing methane (1) Maintained in a safe condition to width is provided, MSHA may require drainage systems. always assure passage of anyone, a stretcher test where 4 persons carry a (16) The locations of all atmospheric including disabled persons; miner through the area in question on monitoring system sensors. (2) Clearly marked to show the route a stretcher; (17) Contour lines that pass through and direction of travel to the surface; (5) Located to follow the most direct, whole number elevations of the coalbed (3) Maintained to at least a height of safe and practical route to the nearest being mined. These lines shall be 5 feet from the mine floor to the mine mine opening suitable for the safe spaced at 10-foot elevation levels unless roof, excluding the thickness of any roof evacuation of miners; and a wider spacing is permitted by the support, except that the escapeways (6) Provided with ladders, stairways, district manager. shall be maintained to at least the height ramps, or similar facilities where the (18) The location of proposed seals for of the coalbed, excluding the thickness escapeways cross over obstructions. each worked-out area. of any roof support, where the coalbed (e) Surface openings shall be (19) The entry height, velocity and is less than 5 feet. In areas of mines adequately protected to prevent surface direction of the air current at or near the where escapeways pass through doors, fires, fumes, smoke, and flood water midpoint of each belt flight where the the height may be less than 5 feet, from entering the mine. height and width of the entry are provided that sufficient height is (f) Primary escapeway. (1) One representative of the belt haulage entry. maintained to enable miners, including escapeway that is ventilated with intake (20) The location and designation of disabled persons, to escape quickly in air shall be designated as the primary air courses that have been redesignated an emergency. In areas of mines escapeway. from intake to return for the purpose of developed before November 16, 1992, (2) Paragraphs (f)(3) through (f)(7) of ventilation of structures, areas or where escapeways pass over or under this section apply as follows: (i) To all areas of a primary escapeway installations that are required by this overcasts or undercasts, the height may developed on or after November 16, subpart D to be ventilated to return air be less than 5 feet provided that 1992; courses, and for ventilation of seals. sufficient height is maintained to enable miners, including disabled persons, to (ii) Effective as of March 11, 1997, to (c) The mine map required by all areas of a primary escapeway § 75.1200 may be used to satisfy the escape quickly in an emergency. When there is a need to determine whether developed between March 30, 1970 and requirements for the ventilation map, November 16, 1992; and sufficient height is provided, MSHA provided that all the information (iii) Effective as of March 11, 1997, to may require a stretcher test where 4 required by this section is contained on all areas of the primary escapeway the map. persons carry a miner through the area developed prior to March 30, 1970 in question on a stretcher; where separation of the belt and trolley § 75.373 Reopening mines. (4) Maintained at least 6 feet wide haulage entries from the primary After a mine is abandoned or declared except— escapeway existed prior to November inactive, and before it is reopened, (i) Where necessary supplemental roof support is installed, the escapeway shall 16, 1992. mining operations shall not begin until (3) The following equipment is not MSHA has been notified and has not be less than 4 feet wide; or (ii) Where the route of travel passes permitted in the primary escapeway: completed an inspection. (i) Unattended operating diesel through doors or other permanent equipment without an automatic fire § 75.380 Escapeways; bituminous and ventilation controls, the escapeway lignite mines. suppression system. shall be at least 4 feet wide to enable (ii) Mobile equipment hauling coal (a) Except in situations addressed in miners to escape quickly in an except for hauling coal incidental to § 75.381, § 75.385 and § 75.386, at least emergency, or cleanup or maintenance of the primary two separate and distinct travelable (iii) Where the alternate escapeway escapeway. passageways shall be designated as passes through doors or other (iii) Compressors, except— escapeways and shall meet the permanent ventilation controls or where (A) Compressors necessary to requirements of this section. supplemental roof support is required maintain the escapeway in safe, (b) (1) Escapeways shall be provided and sufficient width is maintained to travelable condition; from each working section, and each enable miners, including disabled (B) Compressors that are components area where mechanized mining persons, to escape quickly in an of equipment such as locomotives and equipment is being installed or emergency. When there is a need to rock dusting machines; and removed, continuous to the surface determine whether sufficient width is (C) Compressors of less than five escape drift opening or continuous to provided, MSHA may require a stretcher horsepower. the escape shaft or slope facilities to the test where 4 persons carry a miner (iv) Underground transformer surface. through the area in question on a stations, battery charging stations, (2) During equipment installation, stretcher, or substations, and rectifiers except— these escapeways shall begin at the (iv) Where mobile equipment near (A) Where necessary to maintain the projected location for the section working sections, and other equipment escapeway in safe, travelable condition; loading point. During equipment essential to the ongoing operation of and removal, they shall begin at the location longwall sections, is necessary during (B) Battery charging stations and of the last loading point. normal mining operations, such as rectifiers and power centers with 9844 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations transformers that are either dry-type or point except when a greater or lesser escapeways, unless mechanical escape contain nonflammable liquid, provided distance for this separation is specified facilities are installed. they are located on or near a working and approved in the ventilation plan section and are moved as the section and does not pose a hazard to miners. § 75.381 Escapeways; anthracite mines. advances or retreats. (h) Alternate escapeway. One (a) Except as provided in §§ 75.385 (v) Water pumps, except— escapeway shall be designated as the and 75.386, at least two separate and (A) Water pumps necessary to alternate escapeway. The alternate distinct travelable passageways shall be maintain the escapeway in safe, escapeway shall be separated from the designated as escapeways and shall travelable condition; primary escapeway for its entire length, meet the requirements of this section. (B) Submersible pumps; except that the alternate and primary (b) Escapeways shall be provided (C) Permissible pumps and associated escapeways may be ventilated from a from each working section continuous permissible switchgear; common intake air shaft or slope to the surface. (D) Pumps located on or near a opening. (c) Each escapeway shall be— working section that are moved as the (i) Mechanical escape facilities shall (1) Maintained in a safe condition to section advances or retreats; be provided and maintained for— always assure passage of anyone, (E) Pumps installed in anthracite (1) Each shaft that is part of a including disabled persons; mines; and designated escapeway and is greater (2) Clearly marked to show the route (F) Small portable pumps. than 50 feet in depth; and of travel to the surface; (4) Mobile equipment operated in the (2) Each slope from the coal seam to (3) Provided with ladders, stairways, primary escapeway, except for the surface that is part of a designated ramps, or similar facilities where the continuous miners and as provided in escapeway and is inclined more than 9 escapeways cross over obstructions; and paragraphs (f)(5), (f)(6), and (f)(7) of this degrees from the horizontal. (4) Maintained at least 4 feet wide by section, shall be equipped with a fire (j) Within 30 minutes after mine 5 feet high. If the pitch or thickness of suppression system installed according personnel on the surface have been the coal seam does not permit these to §§ 75.1107–3 through 75.1107–16 that notified of an emergency requiring dimensions to be maintained other is— evacuation, mechanical escape facilities dimensions may be approved in the (i) Manually operated and attended provided under paragraph (i) of this ventilation plan. continuously by a person trained in the section shall be operational at the (d) Surface openings shall be systems function and use, or adequately protected to prevent surface (ii) A multipurpose dry chemical type bottom of shaft and slope openings that fires, fumes, smoke, and flood water capable of both automatic and manual are part of escapeways. from entering the mine. activation. (k) Except where automatically (5) Personnel carriers and small activated hoisting equipment is used, (e) Primary escapeway. One mobile equipment designed and used the bottom of each shaft or slope escapeway that shall be ventilated with only for carrying people and small hand opening that is part of a designated intake air shall be designated as the tools may be operated in primary escapeway shall be equipped with a primary escapeway. escapeways if— means of signaling a surface location (f) Alternate escapeway. One (i) The equipment is provided with a where a person is always on duty when escapeway that shall be designated as multipurpose dry chemical type fire anyone is underground. When the signal the alternate escapeway shall be suppression system capable of both is activated or the evacuation of persons separated from the primary escapeway automatic and manual activation, and underground is necessary, the person for its entire length. the suppression system is suitable for shall assure that mechanical escape (g) Mechanical escape facilities shall the intended application and is listed or facilities are operational as required by be provided— approved by a nationally recognized paragraph (j) of this section. (1) For each shaft or slope opening independent testing laboratory, or, (l) (1) Stairways or mechanical escape that is part of a primary escapeway; and (ii) Battery powered and provided facilities shall be installed in shafts that (2) For slopes that are part of with two 10 pound multipurpose dry are part of the designated escapeways escapeways, unless ladders are chemical portable fire extinguishers. and that are 50 feet or less in depth, installed. (6) Notwithstanding the requirements except ladders may be used in shafts (h) Within 30 minutes after mine of paragraph (f)(3)(i), mobile equipment that are part of the designated personnel on the surface have been not provided with a fire suppression escapeways and that are 5 feet or less in notified of an emergency requiring system may operate in the primary depth. evacuation, mechanical escape facilities escapeway if no one is inby except those (2) Stairways shall be constructed of shall be operational at the bottom of persons directly engaged in using or concrete or metal, set on an angle not to each shaft and slope opening that is part moving the equipment. exceed 45 degrees from the horizontal, of an escapeway. (7) Notwithstanding the requirements and equipped on the open side with (i) Except where automatically of paragraph (f)(3)(i), mobile equipment handrails. In addition, landing activated hoisting equipment is used, designated and used only as emergency platforms that are at least 2 feet by 4 feet the bottom of each shaft or slope vehicles or ambulances, may be shall be installed at intervals not to opening that is part of a primary operated in the primary escapeway exceed 20 vertical feet on the stairways escapeway shall be equipped with a without fire suppression systems. and equipped on the open side with means of signaling a surface location (g) Except where separation of belt handrails. where a person is always on duty when and trolley haulage entries from (3) Ladders shall be constructed of anyone is underground. When the signal designated escapeways did not exist metal, anchored securely, and set on an is activated or the evacuation of before November 15, 1992, the primary angle not to exceed 60 degrees from the personnel is necessary, the person on escapeway shall be separated from belt horizontal. duty shall assure that mechanical and trolley haulage entries for its entire (m) A travelway designed to prevent escape facilities are operational as length, to and including the first slippage shall be provided in slope and required by paragraph (h) of this connecting crosscut outby each loading drift openings that are part of designated section. Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations 9845

§ 75.382 Mechanical escape facilities. locations of doors, or directions of informed of the locations of fire doors, (a) Mechanical escape facilities shall airflow shall be shown on the maps by check curtains, changes in the routes of be provided with overspeed, overwind, the end of the shift on which the travel, and plans for diverting smoke and automatic stop controls. changes are made, and affected miners from escapeways. (b) Every mechanical escape facility shall be informed of the changes before (c) The practice escapeway drills may with a platform, cage, or other device entering the underground areas of the be used to satisfy the evacuation shall be equipped with brakes that can mine. Miners underground on a shift specifications of the fire drills required stop the fully loaded platform, cage, or when any such change is made shall be by § 75.1101–23. other device. immediately notified of the change. (c) Mechanical escape facilities, (b) (1) At least once every 90 days, § 75.384 Longwall and shortwall including automatic elevators, shall be each miner, including miners with travelways. examined weekly. The weekly working stations located between (a) If longwall or shortwall mining examination of this equipment may be working sections and main escapeways, systems are used and the two designated conducted at the same time as a daily shall participate in a practice escapeway escapeways required by § 75.380 are examination required by § 75.1400–3. drill. During this drill, each miner shall located on the headgate side of the (1) The weekly examination shall travel the primary or alternate longwall or shortwall, a travelway shall include an examination of the headgear, escapeway from the miner’s working be provided on the tailgate side of that connections, links and chains, section or area where mechanized longwall or shortwall. The travelway overspeed and overwind controls, mining equipment is being installed or shall be located to follow the most automatic stop controls, and other removed, to the area where the split of direct and safe practical route to a facilities. air ventilating the working section designated escapeway. (2) At least once each week, the hoist intersects a main air course, or 2,000 (b) The route of travel shall be clearly shall be run through one complete cycle feet outby the section loading point, marked. of operation to determine that it is whichever distance is greater. Other (c) When a roof fall or other blockage operating properly. miners shall participate in the occurs that prevents travel in the (d) A person trained to operate the escapeway drill by traveling in the travelway— mechanical escape facility always shall primary or alternate escapeway for a (1) Work shall cease on the longwall be available while anyone is distance of 2,000 feet from their working or shortwall face; underground to provide the mechanical station toward the nearest escape (2) Miners shall be withdrawn from escape facilities, if required, to the facility or drift opening. An escapeway face areas to a safe area outby the bottom of each shaft and slope opening drill shall not be conducted in the same section loading point; and that is part of an escapeway within 30 escapeway as the immediately (3) MSHA shall be notified. minutes after personnel on the surface preceding drill. (d) Work may resume on the longwall have been notified of an emergency (2) At least once every 6 weeks and or shortwall face after the procedures set requiring evacuation. However, no for each shift, at least two miners on out in §§ 75.215 and 75.222 are operator is required for automatically each coal producing working section implemented. operated cages, platforms, or elevators. who work on that section, accompanied (e) Mechanical escape facilities shall by the section supervisor, shall § 75.385 Opening new mines. have rated capacities consistent with the participate in a practice escape drill and When new mines are opened, no more loads handled. shall travel the primary or alternate than 20 miners at a time shall be (f) Manually-operated mechanical escapeway from the location specified allowed in any mine until a connection escape facilities shall be equipped with in paragraph (b)(1) of this section, to the has been made between the mine indicators that accurately and reliably surface, to mechanical escape facilities, openings, and these connections shall show the position of the facility. or to an underground entrance to a shaft be made as soon as possible. (g) Certification. The person making or slope to the surface. Systematic the examination as required by rotation of section personnel shall be § 75.386 Final mining of pillars. paragraph (c) of this section shall certify used so that all miners participate in When only one mine opening is by initials, date, and the time that the this drill. An escapeway drill shall not available due to final mining of pillars, examination was made. Certifications be conducted in the same escapeway as no more than 20 miners at a time shall shall be made at or near the facility the immediately preceding drill. be allowed in the mine, and the distance examined. (3) At least once every 6 weeks, at between the mine opening and working least two miners on each maintenance face shall not exceed 500 feet. § 75.383 Escapeway maps and drills. shift and a supervisor, shall participate (a) A map shall be posted or readily in a practice escape drill and shall travel § 75.388 Boreholes in advance of mining. accessible to all miners in each working the primary or alternate escapeway from (a) Boreholes shall be drilled in each section, and in each area where the location specified in paragraph advancing working place when the mechanized mining equipment is being (b)(1) of this section, to the surface, to working place approaches— installed or removed. The map shall mechanical escape facilities, or to an (1) To within 50 feet of any area show the designated escapeways from underground entrance to a shaft or slope located in the mine as shown by surveys the working section to the location to the surface. Systematic rotation of that are certified by a registered where miners must travel to satisfy the maintenance personnel and working engineer or registered surveyor unless escapeway drill specified in paragraph sections shall be used so that all miners the area has been preshift examined; (b)(1) of this section. A map showing the participate in this drill and the (2) To within 200 feet of any area main escapeways shall be posted at a escapeways from all sections are located in the mine not shown by surface location of the mine where traveled. An escapeway drill shall not surveys that are certified by a registered miners congregate, such as at the mine be conducted in the same escapeway as engineer or registered surveyor unless bulletin board, bathhouse, or waiting the immediately preceding drill. the area has been preshift examined; or room. All maps shall be kept up to date, (4) Before or during practice (3) To within 200 feet of any mine and any changes in route of travel, escapeway drills, miners shall be workings of an adjacent mine located in 9846 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Rules and Regulations the same coalbed unless the mine boreholes shall be plugged with wooden for mining-through into the area has workings have been preshift examined. plugs or similar devices when— been approved by the district manager. (b) Boreholes shall be drilled as (1) Tests conducted at the boreholes (3) A copy of the procedures to be follows: show that the atmosphere in the followed shall be posted near the site of (1) Into the working face, parallel to penetrated area contains more than 1.0 the mining-through operations and the the rib, and within 3 feet of each rib. percent methane, less than 19.5 percent operator shall explain these procedures (2) Into the working face, parallel to oxygen, or harmful concentrations of to all miners involved in the operations. the rib, and at intervals across the face carbon monoxide, carbon dioxide or (b) The procedures specified in the not to exceed 8 feet. other explosive, harmful or noxious plan shall include— (3) At least 20 feet in depth in gases; (1) The method of ventilation, advance of the working face, and always (2) Tests for methane, oxygen, carbon ventilation controls, and the air maintained to a distance of 10 feet in quantities and velocities in the affected advance of the working face. monoxide, and carbon dioxide cannot working section and working place; (c) Boreholes shall be drilled in both be made because air from mine ribs of advancing working places workings is flowing into the penetrated (2) Dewatering procedures to be used described in paragraph (a) of this area; or if a penetrated area contains a water section unless an alternative drilling (3) Water is discharging through the accumulation; and plan is approved by the District boreholes from the penetrated area into (3) The procedures and precautions to Manager in accordance with paragraph the mine workings. be followed during mining-through (g) of this section. These boreholes shall (f) If mining is to be conducted within operations. be drilled— 50 feet above or below an inaccessible (c) Except for routine mining-through (1) At an angle of 45 degrees to the area of another mine, boreholes shall be operations that are part of a retreat direction of advance; drilled, as necessary, according to a plan section ventilation system approved in (2) At least 20 feet in depth; and approved by the district manager. accordance with § 75.371(f) and (x), the following provisions shall apply: (3) At intervals not to exceed 8 feet. (g) Alternative borehole patterns that (d) When a borehole penetrates an (1) Before and during mining-through provide the same protection to miners area that cannot be examined, and operations, a certified person shall as the pattern established by paragraphs before mining continues, a certified perform air quality tests at intervals and (b) and (c) of this section may be used person shall, if possible, determine— at locations necessary to protect the under a plan approved by the district (1) The direction of airflow in the safety of the miners. manager. borehole; (2) During mining-through operations, (2) The pressure differential between § 75.389 Mining into inaccessible areas. only persons involved in these the penetrated area and the mine operations shall be permitted in the workings; (a) (1) The operator shall develop and follow a plan for mining into areas mine; and (3) The concentrations of methane, (3) After mining-through, a certified oxygen, carbon monoxide, and carbon penetrated by boreholes drilled under § 75.388. person shall determine that the affected dioxide; and areas are safe before any persons enter (2) Mining shall not resume into any (4) Whether water is impounded the underground areas of the mine. within the penetrated area. area penetrated by boreholes until (e) Unless action is taken to dewater conditions in the penetrated area can be [FR Doc. 96–5453 Filed 3–6–96; 11:23 am] or to ventilate penetrated areas, determined under § 75.388 and the plan BILLING CODE 4510±43±P federal register March 11,1996 Monday Proposed Rule Force onDisclosureSimplification; Phase-One RecommendationsofTask 17 CFRPart210,etal. Commission Exchange Securities and Part IV 9847 9848 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Proposed Rules

SECURITIES AND EXCHANGE or M. Kathleen Haller, Division of D,41, Rule 902 42 of Regulation S,43 Rule COMMISSION Corporation Finance, at (202) 942–1977. 311 44 of Regulation S–T,45 Form F–6,46 47 48 49 SUPPLEMENTARY INFORMATION: In order to Form F–7, Form F–8, Form F–9, 17 CFR Parts 210, 228, 229, 230, 232, begin implementing certain of the Form F–10,50 Form F–80,51 and 239, 240, and 249 recommendations of the Task Force on Exchange Act Rules 12b–11,52 13a–13,53 Disclosure Simplification that it has so 14d–1,54 15d–13,55 16a–3,56 and 24b– [Release Nos. 33±7271 and 34±36922; S7± 57 6±96] far considered, the Commission today is 2. proposing the elimination of Rules 3– I. Background RIN 3235±AG75 16,1 4–05,2 4–06,3 and 4–10 (b) through Chairman Arthur Levitt organized the (h) 4 of Regulation S–X,5 Industry Guide Phase-One Recommendations of Task Task Force on Disclosure Simplification 1,6 Rule 148 7 under the Securities Act Force on Disclosure Simplification (‘‘Task Force’’) in August 1995 to review of 1933 (‘‘Securities Act’’),8 Regulation forms and rules relating to capital- AGENCY: Securities and Exchange B 9 (including Forms 1–G and 3–G and raising transactions, periodic reporting Commission. Schedules A, B, C, and D thereunder 10), pursuant to the Exchange Act, proxy ACTION: Proposed rules. Rules 445,11 446,12 447 13 and 494 14 of solicitations, and tender offers and Regulation C under the Securities Act,15 beneficial ownership reports under the SUMMARY: The Commission has thus far Regulation F,16 (including Form 1–F 17), Williams Act. The goal was to simplify considered certain of the Securities Act Rules 702(T) 18 and the disclosure process and to make recommendations contained in the Task 703(T),19 Form 701,20 Rule 13a–17 21 Force on Disclosure Simplification’s regulation of capital formation more under the Securities Exchange Act of effective and efficient where consistent Report (‘‘Task Force Report’’), the 1934 (‘‘Exchange Act’’),22 Exchange Act publication of which the Commission is 23 24 25 with investor protection. Rules 15d–17, 16b–1(c) and 16b–4, In the course of its review, the Task authorizing today. The Commission 26 General Instruction I of Form 10–K, Force met with issuing companies, now proposes to eliminate a number of and Form 10–C.27 In addition, rules and forms that may no longer be investor groups, underwriters, amendments are being proposed to the accounting firms, law firms and others necessary or appropriate for the 28 following rules and forms: Item 501 who participate daily in the capital protection of investors, and to propose and Item 601(b) 29 of Regulations S–B 30 other minor or technical rule changes or markets (‘‘industry participants’’). The and S–K,31 Rule 252(h)(2) 32 of Task Force prepared a report corrections. Other proposals designed to Regulation A,33 Rules 402,34 406,35 improve the disclosure process, both for summarizing its findings and setting 464,36 471,37 472 38 and 473 39 of forth recommendations and suggestions investors and those subject to the Regulation C, Rule 504 40 of Regulation Commission’s disclosure requirements, of areas for further Commission study. The Task Force Report was presented to may be forthcoming in future releases 1 17 CFR 210.3–16. the Commission at an open meeting on following the Commission’s further 2 17 CFR 210.4–05. March 5, 1996.58 consideration of the remaining Task 3 17 CFR 210.4–06. The Task Force has recommended Force recommendations. Accordingly, 4 17 CFR 210.4–10(a) through (h). that the Commission eliminate or by issuing this release, the Commission 5 17 CFR Part 210. 6 modify many rules and forms, as well as does not intend to express any view on 17 CFR 229.801(a) and 229.802(a). 7 simplify several key aspects of securities the merits of any of the Task Force’s 17 CFR 230.148. 8 offerings. Having had the opportunity to recommendations not addressed in this 15 U.S.C. 77a et seq. 9 17 CFR 230.300 through 230.346. consider a relatively small number of release. 10 Referenced in 17 CFR 239.101. those recommendations, the DATES: Comments should be submitted 11 17 CFR 230.445. Commission has determined to on or before April 10, 1996. 12 17 CFR 230.446. implement some of the Task Force ADDRESSES: All comments concerning 13 17 CFR 230.447. Report’s recommendations by proposing 14 the rule proposals should be submitted 17 CFR 230.494. for public comment the elimination of 15 17 CFR 230.400 through 230.494. in triplicate to Jonathan G. Katz, 16 45 rules and 4 forms in conjunction Secretary, U.S. Securities and Exchange 17 CFR 230.651 through 230.656. 17 17 CFR 239.300. with the publication of the Task Force Commission, Mail Stop 6–9, 450 Fifth 18 17 CFR 230.702(T). Street NW., Washington, D.C. 20549. 19 17 CFR 230.703(T). 41 17 CFR 230.501 through 230.508. Comments also may be submitted 20 17 CFR 239.701. 42 17 CFR 230.902. electronically at the following E-mail 21 17 CFR 240.13a–17. 43 17 CFR 230.901 through 230.904. address: [email protected]. All 22 15 U.S.C. 78a et seq. 44 17 CFR 232.311. 23 17 CFR 240.15d–17. 45 17 CFR Part 232. comment letters should refer to File 46 24 17 CFR 240.16b–1. 17 CFR 239.36. Number S7–6–96; this file number 47 25 17 CFR 240.16b–4. 17 CFR 239.37. should be included on the subject line 48 26 17 CFR 249.310. 17 CFR 239.38. if E-mail is used. Comment letters will 49 27 17 CFR 249.310c. 17 CFR 239.39. 50 be available for inspection and copying 28 17 CFR 229.501. 17 CFR 239.40. 51 in the public reference room at the same 29 17 CFR 228.601(b) and 17 CFR 229.601(b). 17 CFR 239.41. 52 address. Electronically submitted 30 17 CFR Part 228. 17 CFR 240.12b–11. 53 comment letters will be posted on the 31 17 CFR Part 229. 17 CFR 240.13a–13. 54 32 17 CFR 230.252(h)(2). 17 CFR 240.14d–1. Commission’s Internet web site (http:// 55 33 17 CFR 230.251 through 230.263. 17 CFR 240.15d–13. www.sec.gov). 56 34 17 CFR 230.402. 17 CFR 240.16a–3. FOR FURTHER INFORMATION CONTACT: 57 35 17 CFR 230.406. 17 CFR 240.24b–2. 58 The Report is available for inspection and James R. Budge, Office of Disclosure 36 17 CFR 230.464. Policy, Division of Corporation Finance, 37 copying in the Commission’s public reference room. 17 CFR 230.471. The Report also is posted on the Commission’s at (202) 942–2910, Douglas G. Tanner, 38 17 CFR 230.472. Internet web site (http://www.sec.gov). Persons Office of Chief Accountant, Division of 39 17 CFR 230.473. interested in commenting on the Report may do so Corporation Finance at (202) 942–2960 40 17 CFR 230.504. by referring to File No. S7–6–96. Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Proposed Rules 9849

Report. A number of other revisions, does not require any offeror to furnish any assessment levied thereon.’’ Thus, including minor and technical current or past financial statements. assessable stock is stock, the purchase of amendments, also are being proposed. Regulation B also requires an offeror which triggers an annual obligation to Other proposals designed to improve to submit two post-offering reports: pay an amount, termed an the disclosure process, both for Form 1–G and Form 3–G. Form 1–G, ‘‘assessment,’’ to the issuer in addition investors and those subject to the which is filed with the Commission, to the original offering price. If the Commission’s disclosure requirements, requires disclosure of information buyer fails to pay the levied assessment may be forthcoming in future releases pertaining to each sale of the offered after receiving a notice of delinquency following the Commission’s further securities. Form 3–G, which is sent to from the issuer, the issuer can reclaim consideration of the Task Force each purchaser as well as filed with the the original stock and resell it, usually recommendations. Commission, includes more detailed at an auction. The Commission is taking the first information pertaining to the offering’s Under Rule 136, both the levying of step towards implementation of certain results, including the actual cost of an assessment on assessable stock and of the Task Force recommendations by drilling, and expenses incurred in the the resale of forfeited assessable stock proposing the elimination or selling effort. constitute the issuance of securities, amendment of the rules and forms Between 1966 and 1977, the which trigger registration requirements enumerated below. By issuing these Commission received 6,904 Regulation under the Act. Regulation F establishes proposals for public comment B filings. This relatively large number of a partial conditional exemption from simultaneously with the publication of Regulation B filings appears to have registration for these transactions. In the Task Force Report, the Commission corresponded with a spurt of oil/gas order to qualify for the exemption, a does not intend to indicate either drilling activity and related financing company must be incorporated or have approval or disapproval of any of the triggered by the energy crisis of the mid its principal business operations in the remaining recommendations or 1970s. In 1975 alone, the Commission United States. In addition, a company suggestions in the Task Force Report received 625 Regulation B offering cannot claim more than $300,000 in that it has not yet fully considered. sheets pertaining to $35.4 million in exempted assessable stock transactions total sales. for any one calendar year. Form 1–F II. Non-Financial Disclosure However, by 1977 the number of requires disclosure of pertinent A. Securities Act Rules Regulation B offering sheets received by information about the issuer; its 10% the Commission had dropped to 96, beneficial stockholders; its directors and 1. Regulation B (Rules 300–346), and covering only $7.3 million in aggregate officers; its levied assessments, resales Accompanying Schedules A, B, C, and sales of oil/gas securities. Since then, of forfeited assessable stock, and other D, and Forms 1–G and 3–G the number of Regulation B offering unregistered securities issued during the Regulation B provides a conditional, sheets filed has steadily declined, from preceding year; and its current proposed limited exemption from Securities Act 94 such filings in 1980, to 13 in 1985, assessments or resales of forfeited registration for offerings of ‘‘fractional 7 in 1990, 4 in 1992, and, finally, 0 in assessable stock. undivided interests’’ in oil or gas rights 1995. Moreover, since enactment of It appears that only two types of of up to $250,000 per offering. A Regulation B’s reporting requirements in companies have issued assessable stock: precursor to Regulation B was adopted 1972, the Commission has received only mining companies and water extraction/ by the Federal Trade Commission in one each of Form 1–G and Form 3–G. delivery companies, also known as 1934; 59 Regulation B was last Comment is requested as to whether mutual water companies. Since the substantially revised in 1972.60 Regulation B (and accompanying promulgation of Regulation F, In order to qualify for the Regulation schedules and forms) continues to be approximately 40 such companies have B exemption, an offeror of fractional useful to investors and issuers. Does the filed a total of 234 1–F forms. Most of undivided interests in certain specified availability of other exemptions, such as these filings occurred between 1967 and oil or gas rights must file an offering the limited offering exemption from 1982. Only 32 Form 1–F filings have sheet with the Commission at least ten registration set forth in Regulation D, or occurred between 1983 and 1995. Ten days prior to commencing the offering. the private placement exemption under companies were responsible for those The offering sheet must contain the Section 4(2) of the Securities Act,61 filings. Since 1992, only three information specified by Schedules A, render Regulation B obsolete? companies have filed a total of 10 1–F B, C, or D, depending on the distinct forms with the Commission. type of oil/gas interest, as well as on 2. Regulation F (Rules 651±656) and One reason for the recent steady whether the enterprise is producing or Accompanying Form 1±F decline of Form 1–F filings appears to non-producing. These schedules require Regulation F provides a conditional be the availability of more beneficial some detailed information concerning limited exemption from Securities Act limited offering exemptions, the nature and amount of the interests registration for assessments levied on particularly the Rule 504 exemption. In offered; the legal rights and obligations assessable stock and for resales of 1982, the Commission adopted its first created by such interests; a description forfeited assessable stock. The version of Rule 504. Following that year, of the property in question; for Commission promulgated Regulation F the annual number of Form 1–F producing interests, a history of the oil/ in 1959 62 at the same time that it submissions steadily decreased from 9 gas production activities in the field in enacted Securities Act Rule 136.63 Rule in 1982, to 6 in 1983, 3 in 1984, 0 in question; and, for non-producing 136(c) defines ‘‘assessable stock’’ to 1985 and 1986, and an average filing interests, a description of plans for the mean ‘‘stock which is subject to resale rate of 2–3 for the years 1987 to 1995. drilling of wells, including the by the issuer * * * in the event of a Virtually all Regulation F companies estimated costs and method of financing failure of the holder of such stock to pay have been non-reporting companies. such drilling. However, Regulation B Accordingly, such companies are 61 15 U.S.C. 77d(2). eligible to claim a Rule 504 exemption. 59 Release No. 33–185 (June 30, 1934). 62 Release No. 33–4121 (July 30, 1959) [24 FR Comment is requested as to whether 60 Release No. 33–5314 (October 11, 1972) [37 FR 6385]. Regulation F (and accompanying 23829]. 63 17 CFR 230.136. schedules and forms) continues to be 9850 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Proposed Rules useful to investors and issuers. Does the Commission filings shows that there transferred to the Surface availability of other exemptions, such as was only one competitive bid filing in Transportation Board, an independent the limited offering exemption from 1994, and no competitive bid filings in agency of the Department of registration set forth in Regulation D, or 1995. One reason for the lack of filings Transportation. the private placement exemption under under these rules may be that, beginning Comment is requested as to whether Section 4(2) of the Securities Act, render in 1982, the Commission began to relax the exemption provided by this rule Regulation F obsolete? the restrictive bidding requirements of continues to serve a useful purpose. In PUHCA Rule 50 in recognition of the 3. Securities Act Rule 148 addition, comment is solicited as to fact that these procedures often whether the exemption provided by this Rule 148 was originally designed to precluded registered holding companies rule should continue to be administered be a counterpart to Rule 144 and, as from obtaining the benefits of the by the Surface Transportation Board, as such, to provide a safe harbor for the Securities Act Rule 415 shelf ICC’s successor, or whether it should be resales of certain categories of securities registration procedure, placing them at treated similarly to the other Section acquired in bankruptcy proceedings. a disadvantage compared to other 16(b) exemptive provisions that are Included in these categories are issuers in getting access to the capital administered by the Commission. securities issued under the Federal markets on short notice. In 1994, the Bankruptcy Act, portfolio securities sold Commission determined that 2. Exchange Act Rule 16b–4 under the Securities Investors competitive bidding was no longer Protection Act (SIPA), and issuances of necessary to prevent abuses in the Rule 16b–4 provides an exemption debtor securities in circumstances issuance and sale of securities by these from the requirements of Section 16(b) where the Federal Deposit Insurance companies and rescinded Rule 50.64 for certain holding company redemption Corporation (FDIC) has been appointed Comment is requested as to whether transactions. There appear to be few receiver of the debtor’s assets. Rules 445, 446, and 447 continue to be situations where a holding company In 1978, the Bankruptcy Act was useful in capital raising transactions. owns securities in only one company repealed and replaced with the Comment also is requested as to and desires to exchange its own shares Bankruptcy Code, which provides an whether other Commission rules, such through a redemption for those of such exemption from Securities Act as Rule 430A (which eliminates the company, and there appear to be few, if registration as well as a safe harbor for need for alternative prospectus cover any, situations in which the rule is the resales of securities received under pages),65 are adequate to accommodate invoked. a plan of reorganization. Through no- the distribution of securities through Commenters should address whether action letters, the Commission has taken today’s competitive bidding practices. the exemption provided by this rule has the position that Rule 148 is applicable been invoked with any degree of only to resales of securities that were 5. Securities Act Rule 494 frequency. Comment is also requested as issued under the repealed Bankruptcy Rule 494 was adopted in 1951 to to whether the rule generally serves a Act, but not to resales of securities accommodate a then common practice useful purpose, and should be retained under the 1978 Bankruptcy Code. of advertising securities issued by in whole or in part; if retained, for what Comment is requested as to whether 66 foreign national governments. The purpose. Rule 148 continues to serve a useful rule limits such ‘‘newspaper purpose (e.g., in connection with prospectuses’’ for foreign government C. Disclosure Requirements securities sold under the SIPA and/or securities to advertisements appearing where the FDIC has been appointed in newspapers, magazines and other 1. Item 501(b) of Regulation S–K receiver of the debtor’s assets). periodicals that are distributed by Item 501(b) of Regulation S–K Commenters also should consider second class mail. However, the practice currently requires that registrants whether the rule be retained for appears to have fallen into disuse. provide a cross-reference sheet securities issued under the repealed Comment is requested as to whether immediately following the facing page Bankruptcy Act. Rule 494 continues to serve a useful in prospectuses, showing the location of 4. Securities Act Rules 445, 446, and purpose. Should this rule be retained, in the information required to be included 447 whole or in part, in light of in response to the items in the form. contemporary practices relating to The Task Force has recommended This cross-reference sheet requirement offerings of foreign government is in addition the Regulation S–K Item that the Commission eliminate Rules securities? 445, 446 and 447, which govern 502(g) provision that registrants include registration statements filed in B. Exchange Act Rules a reasonably detailed table of contents.67 In light of the table of connection with securities to be offered 1. Paragraph (c) of Exchange Act Rule contents requirement, the Commission through competitive bidding (e.g., by 16b–1 means of a solicitation of competitive proposes to eliminate the cross- proposals from underwriters). These This rule exempts the acquisition of reference sheet requirement. securities resulting from a rules were put into place in the late Comment is requested as to whether reorganization of a railroad or other 1940s principally to accommodate the table of contents provides an carrier approved by the Interstate registered public utility holding adequate road map to the prospectus so Commerce Commission (‘‘ICC’’), an companies and their subsidiaries that the cross-reference sheet could be agency that was abolished as of January (‘‘registered holding companies’’). These eliminated entirely. Commenters who 1, 1996. The function of approving such companies were subject to Rule 50 object to total elimination should reorganizations has now been under the Public Utility Holding specify how the cross-reference sheet Company Act of 1935 (‘‘PUHCA’’), should be modified to reflect their 64 Release No. 35–26031 (April 20, 1994) [59 FR which required that their securities be 21922]. concerns. sold through competitive bids. 65 17 CFR 230.430A. Rules 445, 446 and 447 appear to be 66 Release No. 33–3425 (August 27, 1951) [16 FR 67 References to the cross reference sheet would rarely used at present. A review of 8820]. be deleted from Securities Act Rule 472. Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Proposed Rules 9851

2. Item 501(c)(8) of Regulation S–K 68 book value per share. The Commission purchasers, or the markets in which This proposed revision, which proposes to eliminate Guide 1 because these securities are traded. the information requested by the Guide eliminates a red ink requirement for the 3. Form 10–C required prospectus caption ‘‘Subject to also appears to be within the coverage Completion’’, would conform the of other rules of the Commission, The Commission proposes to requirements of Regulation S–K with including Items 101 and 303 of eliminate Form 10–C and Rules 13a–17 72 those of Regulation S–B, which has no Regulation S–K. and 15d–17, which require issuers requirements relating to the color of the Comment is requested on whether any registered under the Exchange Act and caption. Comment is solicited on aspect of the information required by quoted in Nasdaq to report changes in whether the color of the caption serves Guide 1 is not furnished by affected corporate name to the Commission and a significant purpose. issuers pursuant to other Commission the NASD, or an aggregate increase or rules, and if not, whether maintaining a decrease of a class of securities 3. Exhibits separate Guide 1 would be necessary or outstanding that exceeds 5% of the The Commission proposes to delete appropriate and in the interests of amount of securities of the class the following from the required list of investors. outstanding. In proposing the elimination of this form, the exhibits in Regulation S–K and D. Forms Regulation S–B 69 because the Commission notes that the information information in each such exhibit either 1. Form 701 regarding changes in number of shares appears to be infrequently used or is The Commission proposes to delete outstanding typically is reflected in an otherwise available. The specific expired Form 701 (Notice of sales issuer’s financial statements. Comment exhibits proposed to be eliminated are: pursuant to an exemption under Section is requested as to whether the Form 10– Opinion regarding discount on capital 701) and the rules that required its filing C provides material information not shares (Exhibit 6); 70 Opinion regarding (Securities Act Rules 702(T) and 703(T)) otherwise provided. Commenters who liquidation preference (Exhibit 7); in order to remove them from the Code favor retention of Form 10–C should be Statement regarding computation of per of Federal Regulations. By their terms, specific with respect to the reasoning for share earnings (Exhibit 11); Material Rules 702(T) and 703(T), and thus Form their position. foreign patents (Exhibit 14); and 701, were effective only until 1993. III. Financial Disclosure Information from reports furnished to Commenters who believe that this form state insurance regulatory authorities should be re-instated should provide The Commission also proposes to (Exhibit 28).71 specific reasons as to the bases for their implement certain of the Comment is solicited on whether any views. recommendations in the Task Force of these exhibits provides information Report relating to accounting disclosure material to investors and other market 2. Form F–6 rules, as set forth below. These rules participants. Does the statement Commission is proposing to eliminate were identified as being largely regarding computation of per share Items 3(e) and 4(a) of Form F–6, duplicative of generally accepted earnings provide useful information not governing the registration of depositary accounting principles (‘‘GAAP’’) or otherwise provided in Commission shares evidenced by American other Commission rules. Accordingly, filings? Commenters should address Depositary Receipts (‘‘ADRs’’), because maintaining separate Commission rules whether the availability of foreign the elicited information appears to be of would appear unnecessary. patent documentation or documents little use to investors or the marketplace The proposed changes are not filed with insurance regulators is at large. intended to alter current accounting sufficient, or whether they should Item 3(e) of Form F–6 requires the standards or disclosure practices. continue to be filed with securities registrant to include, as an exhibit, the Comment is requested on whether any disclosure documents. name of each dealer known to the of the proposed changes would have the 4. Industry Guide 1 registrant who has deposited shares effect of altering current accounting against issuance of ADRs, proposes to standards or disclosure practices, and if Guide 1 requires disclosure of the deposit shares or participated in a plan so, how. principal sources of electric and gas to deposit shares, within the past six 1. Rule 3–16 of Regulation S–X revenues and the classes of services months. Under Item 4(a) of Form F–6, offered by the registrant in certain a registrant must undertake to provide Rule 3–16(a) of Regulation S–X sets registration statements as well as annual semi-annual updated information forth the requirement that a registrant, reports on Form 10–K. In addition, if generally concerning dealers depositing which has emerged from a significant equity securities are being registered shares in the facility and the number of reorganization, disclose in its financial and will be issued at a price below book shares issued/cancelled during the statements a brief explanation of such value per share, Guide 1 requires covered period. However, because the reorganization. In addition, if the disclosure of the effects, if any, on the base number of outstanding shares is registrant is about to emerge from a registrant’s business of issuing such not normally publicly available, the reorganization, Rule 3–16(b) of shares at a price below the underlying information regarding semi-annual Regulation S–X requires a balance sheet adjustments to that number appears to giving effect to the plan of 68 17 CFR 229.501(c)(8). be of little use. reorganization with separate 69 Item 601(b) of Regulation S–B and Regulation S–K. Comment is requested as to whether presentation of the registrant’s balance 70 This exhibit currently is not required in any information provided by Item 3(e) sheet before the reorganization, the Regulation S–B; consequently, no change is or 4(a) serves any useful purpose, changes to be effected in the necessary. whether to the issuers of the underlying reorganization, and the balance sheet of 71 Regulation S–T Rule 311(c), providing that shares (particularly where the ADR the registrant after the reorganization. exhibits filed by electronic filers pursuant to paragraph (b)(28) may be filed in paper under cover facility is unsponsored), ADR Registrants have historically satisfied of Form SE [17 CFR 239.64, 249.444, 269.8] would the requirements of Rule 3–16(b) with be eliminated. 72 17 CFR 229.101 and 229.303, respectively. pro forma financial information. 9852 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Proposed Rules

In November 1990, the AICPA issued extinguished and deducted from the A 75 or the filing of a delaying or other SOP 90–7, ‘‘Financial Reporting by appropriate caption on the balance amendment under Rule 473 76 by Entities in Reorganization Under the sheet. Further, with respect to the facsimile transmission, so as to provide Bankruptcy Code,’’ which prescribes the provisions of Rule 4–06 relating to issuers with additional flexibility in accounting and financial statement reacquired indebtedness held for filing documents with the Commission. presentation for entities in bankruptcy pension and other special funds, SFAS • Modify and clarify signature reorganization and for entities which 87 and SFAS 106 prescribe the requirements to allow manual, typed, have emerged from bankruptcy. ARB 43, definition of, and accounting for, plan duplicated or faxed signatures on paper Section 210 of the Financial Reporting assets for pension plans and other post filings, with a manual signature Codification, and SAB Topic 5:S employment benefit plans, which are retention requirement for typed, prescribes the accounting and financial treated as issuer liabilities. duplicated or faxed signatures.77 This statement disclosures for quasi- Comment is requested on whether proposal would clarify existing rules, as reorganizations. Further, Article 11 of maintaining a separate Commission well as extend to paper filers the option Regulation S–X requires pro forma Rule 4–06 is necessary or appropriate in of filing typed signature pages, thus financial information whenever light of applicable GAAP, and the needs providing comparable treatment to both consummation of events or transactions of users of registrant financial paper and electronic filers.78 The occurs or is probable and for which statements. proposed language would retain the disclosure of pro forma financial five-year manual signature retention 4. Rule 4–10 of Regulation S–X information would be material to requirement of Regulation S–T Rule investors. The requirements of the successful 302(b). Comment is requested The Commission proposes to efforts accounting method followed by specifically as to whether the five-year eliminate Rule 3–16 of Regulation S–X oil and gas producers are set forth in retention period is necessary, or because the information requested by paragraphs (b) through (h) of Rule 4–10 whether all signature retention that Rule also appears to be within the of Regulation S–X. As a result of the requirements, including those in scope of Article 11 and the disclosure Commission’s action to supersede the Regulation S–T, should be reduced to a requirements of the other accounting FASB’s determination to designate shorter period, such as three or four literature discussed above. Comment is successful efforts as the method of years. requested on whether there are any accounting to be applied uniformly by • Revise provisions in Rule 406 of reorganizations within the scope of Rule all oil and gas producers,73 specific Regulation C and Exchange Act Rule 3–16 which would be outside the scope rules for both the successful efforts and 24b–2 to emphasize the fact that of SOP 90–7, ARB 43, Section 210 of the full cost accounting methods were confidential treatment requests should Financial Reporting Codification, and maintained in Regulation S–X. not be submitted electronically, but SAB 78 [SAB Topic 5:S], for which The successful efforts method of rather, should be submitted in paper. disclosure of the information required accounting codified into Rule 4–10 This is intended to minimize the by Rule 3–16 would be material to appears to be duplicative of the chances of a confidential document investors. In addition, comment is accounting standards adopted by the being erroneously submitted as part of requested on whether the information FASB in SFAS 19. Because of such a public filing. required by Rule 3–16 would be duplication, the Commission proposes • Modify Rule 504 of Regulation D 79 required to be disclosed in whole or in to eliminate the portions of Rule 4–10 so that the rule itself states that there is part by the items discussed above, and which duplicate SFAS 19—paragraph no information delivery requirement in if so, whether maintaining a separate (b) through (h) of the Rule. Comment is connection with Rule 504 offerings. rule is necessary or appropriate to requested on whether there are any This is intended to eliminate confusion ensure full and fair disclosure. significant differences between resulting from the current language of 2. Rule 4–05 of Regulation S–X paragraphs (b) through (h) of Rule 4–10 Regulation D. and the requirements of SFAS 19 and, • Update the Regulation S definition The Commission proposes to if not, whether maintaining separate of ‘‘Designated Offshore Securities eliminate Rule 4–05 of Regulation S–X, Commission rules is necessary or Market’’ to include markets that have relating to current assets and current appropriate. been recognized as such by the Division liabilities when a company’s operating of Corporation Finance pursuant to cycle is longer than one year, because IV. Miscellaneous Minor and Technical delegated authority since the adoption Chapter 3A of ARB 43 and current Changes of the regulation.80 accounting practices, requires the same The Commission proposes to make • Eliminate provisions exempting presentation and information. Comment the following technical changes to small life and mutual life insurance is requested on whether there would be certain rules and forms under the companies from filing quarterly any material loss of information in Securities Act and the Exchange Act. financial results on Form 10–Q and financial statements if Rule 4–05 of Comment is sought on the necessity or Form 10–QSB.81 The exemption for Regulation S–X were to be eliminated. appropriateness of each of the proposed small life insurance companies expired 3. Rule 4–06 of Regulation S–X changes. • 75 The Commission proposes to Correct a number of out-of-date Proposed amendment to 17 CFR 230.252(h)(2). 76 17 CFR 230.473. eliminate Rule 4–06 of Regulation S–X, cross references in certain Securities Act 74 77 Proposed amendments to Rule 402 and 471 of which currently provides that rules and forms. • Allow the addition or withdrawal of Regulation C, and Exchange Act Rules 12b–11, 14d– reacquired indebtedness of a registrant 1 and 16a–3. must be deducted from the appropriate a delaying notation under Regulation 78 See Rule 302 of Regulation S–T [17 CFR liability caption on the registrant’s 232.302]. 79 balance sheet. This rule is believed by 73 Accounting Series Release No. 253 (August 31, Proposed amendment to 17 CFR 230.504. 1978) [43 FR 40688]. 80 Proposed amendment to Rule 902 of Regulation some to be unnecessary because GAAP, 74 Proposed amendments to Rule 406, 464 and S. including APB 26 and SFAS 76, 473 of Regulation C and Forms F–7, F–8, F–9, F– 81 Proposed amendment to Exchange Act Rules requires that such items be considered 10 and F–80. 13a–13 and 15d–16. Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Proposed Rules 9853 by its terms on December 20, 1983, and VII. Summary of Initial Regulatory about .3% of the total burden hours the exemption for mutual life Flexibility Analysis associated with current requirements. companies was meant to track the small An initial regulatory flexibility With respect to the proposal to life insurance companies exemption. analysis has been prepared in eliminate certain requirements within • Eliminate a general instruction to accordance with 5 U.S.C. 603 Form F–6,85 the supporting statement Form 10–K 82 referring to filings on concerning the proposed amendments. indicates that registrants no longer Form S–18, which form was replaced by The analysis notes that the amendments would be required to furnish the name other small business forms in 1992. are to eliminate certain rules and forms of each dealer known to it or depositary V. General Request for Comment and make minor revisions to the who: 1) has deposited shares against the Commission’s rules to correct or issuance of ADRs within the past six Any interested persons wishing to modernize them. months, 2) proposes to deposit shares submit comment on any of the As discussed more fully in the against issuance of ADRs, or 3) assisted proposals set forth in this release, are analysis, the proposals would affect or participated in the creation of the invited to do so by submitting them in persons that are small entities, as plan of the issuance of the ADRs or the defined by the Commission’s rules. It is triplicate to Jonathan G. Katz, Secretary, selection of the deposited securities. not expected that increased reporting, U.S. Securities and Exchange This proposal would reduce the total recordkeeping and compliance burdens Commission, 450 Fifth Street, N.W., information burden of affected Washington D.C. 20549. Comments also would result from the changes. The registrants (currently 339 hours) by may be submitted electronically at the analysis also indicates that there are no approximately .1 hour per submission, following E-mail address: rule- current federal rules that duplicate, for a total reduction of 33.9 hours for all [email protected]. All comment letters overlap or conflict with the rules and submissions. should refer to File Number S7–6–96; forms to be amended. this file number should be included on As stated in the analysis, several The Commission solicits comment: the subject line if E-mail is used. possible significant alternatives to the concerning whether the proposed Comment is specifically requested as to proposals were considered, including, change in collection of information is whether any of the rules or forms that among others, establishing different necessary; on the accuracy of the have been proposed to be eliminated compliance or reporting requirements Commission’s estimate of the burden of provide disclosure that is material to for small entities or exempting them the proposed changes to the collection investors, issuers or other market from all or part of the proposed of information; on the quality, utility participants, the states or any other requirements. As discussed more fully and clarity of the information to be entity. Comment also is requested on in the analysis, the nature of these collected; and whether the burden of any competitive burdens that might amendments do not lend themselves to collection of information on those who result from the adoption of any of the separate treatment, nor would they are to respond, including through the proposals. All comments will be impose additional burdens on small use of automated collection techniques considered by the Commission in business issuers. or other forms of information complying with its responsibility under Written comments are encouraged technology, may be minimized. Section 23(a) of the Exchange Act.83 with respect to any aspect of the analysis. Such comments will be Persons desiring to submit comments Comments received will be available for on the collection of information public inspection and copying in the considered in the preparation of the requirements should direct them to the Commission’s public reference room, Final Regulatory Flexibility Analysis if Office of Management and Budget, 450 Fifth Street, N.W., Washington, D.C. the proposed amendments are adopted. Attention: Desk Officer for the 20549. Electronically submitted A copy of the analysis may be obtained Securities and Exchange Commission, comment letters will be posted on the by contacting James R. Budge, Office of Office of Information and Regulatory Commission’s Internet web site (http:// Disclosure Policy, Division of www.sec.gov). Corporation Finance, Mail Stop 3–7, 450 Affairs, Washington, D.C. 20503, and Fifth Street, N.W., Washington, D.C. should also send a copy of their VI. Cost-Benefit Analysis 20549. comments to Jonathan G. Katz, Secretary, Securities and Exchange Commenters are requested to provide VIII. Paperwork Reduction Act their views and data relating to any Commission, 450 Fifth Street, N.W., The staff has consulted with the Washington, D.C. 20549, with reference costs and benefits associated with these Office of Management and Budget proposals to aid the Commission in its to File No. S7–6–96. The Office of (‘‘OMB’’) and has submitted the Management and Budget is required to evaluation of the costs and benefits that proposals for review in accordance with may result from the changes proposed make a decision concerning the the Paperwork Reduction Act of 1995 collection of information between 30 in this release. It is anticipated that (‘‘the Act’’)(44 U.S.C. 3501 et seq.). It is these proposals will benefit those with and 60 days after publication, so a anticipated that the proposals to comment to OMB is best assured of filing obligations by simplifying or eliminate certain exhibits from Item clarifying current rules and by having its full effect if OMB receives it 601(b) of Regulations S–K and S–B 84 eliminating rules and forms that are within 30 days of publication. would reduce the existing information outdated or rarely used for other collection requirements that are IX. Statutory Basis for the Proposals reasons. No detrimental effects to associated with the forms identified in investors are expected. However, it is the exhibit tables in those regulations. The foregoing amendments are not believed that the changes outlined The net reduction for all affected proposed pursuant to Sections 6, 7, 8, herein will affect significantly the information collection requirements 10 and 19(a) of the Securities Act, overall costs and burdens associated would be an estimated 62,663 hours, or Sections 3, 12, 13, 14, 15(d), 23(a) and with filing requirements generally. 35A of the Exchange Act. 84 The titles of the affected information collection 82 General Instruction I. requirements are ‘‘Regulation S–K’’ and ‘‘Regulation 85 This information collection is entitled ‘‘Form 83 15 U.S.C. 78w(a). S–B.’’ F–6.’’ 9854 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Proposed Rules

List of Subjects in 17 CFR Parts 210, PART 229ÐSTANDARD telegraphic amendment shall be 228, 229, 230, 232, 239, 240, and 249 INSTRUCTIONS FOR FILING FORMS confirmed in writing within a Accountants, Confidential business UNDER SECURITIES ACT OF 1933, reasonable time by filing a signed copy. information, Registration requirements, SECURITIES EXCHANGE ACT OF 1934 Such confirmation shall not be deemed Reporting and recordkeeping AND ENERGY POLICY AND an amendment. CONSERVATION ACT OF 1975Ð requirements, Securities. §§ 230.300±230.346 [Removed and REGULATION S±K Text of the Proposals reserved] 8. The authority citation continues to 15. By removing the undesignated In accordance with the foregoing, read in part as follows: center heading—Regulation B—and Title 17, Chapter II of the Code of removing and reserving §§ 230.300 Federal Regulations is proposed to be Authority: 15 U.S.C. 77e, 77f, 77g, 77h, 77j, 77k, 77s, 77aa(25), 77aa(26), 77ddd, 77eee, through 230.346 (Regulation B) (The amended as follows: 77ggg, 77hhh, 77iii, 77jjj, 77nnn, 77sss, 78c, undesignated center heading ‘‘Attention 78i, 78j, 78l, 78m, 78n, 78o, 78w, 78ll(d), 79e, Electronic Filers’’ and the paragraph PART 210ÐFORM AND CONTENT OF 79n, 79t, 80a–8, 80a–29, 80a–30, 80a–37, immediately following remain AND REQUIREMENTS FOR FINANCIAL 80b–11, unless otherwise noted. unchanged). STATEMENTS, SECURITIES ACT OF * * * * * 16. By amending § 230.402 by 1933, SECURITIES EXCHANGE ACT removing the word ‘‘manually’’ from the OF 1934, PUBLIC UTILITY HOLDING § 229.501 [Amended] fourth sentence of paragraph (a), and COMPANY ACT OF 1935, INVESTMENT 9. By amending § 229.501 (Item 501 from the fourth sentence of paragraph COMPANY ACT OF 1940, AND Regulation S–K) by removing paragraph (c), and by revising paragraph (e) to read ENERGY POLICY AND (b), redesignating paragraph (c) as as follows: CONSERVATION ACT OF 1975 paragraph (b), and in newly designated paragraph (b)(8) by removing the words § 230.402 Number of copies; binding; 1. The authority citation for Part 210 signatures. continues to read as follows: ‘‘, in red ink’’. * * * * * Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s, § 229.601 [Amended] (e) Signatures. Where the Act or the 77aa(25), 77aa(26), 78l, 78m, 78n, 78o(d), 10. By amending § 229.601 (Item 601 rules thereunder, including paragraphs 78w(a), 78ll(d), 79e(b), 79j(a), 79n, 79t(a), of Regulation S–K) in the exhibit table, (a) and (c) of this section, require a 80a–8, 80a–20, 80a–29, 80a–30, 80a–37, by removing and reserving exhibit unless otherwise noted. document filed with or furnished to the numbers (6), (7), (11), (14) and (28), and Commission to be signed, such § 210.3±16 [Removed and reserved] by removing and reserving paragraphs document shall be manually signed, or 2. By removing and reserving § 210.3– (b)(6), (b)(7), (b)(11), (b)(14) and (b)(28). signed using either typed signatures or 16. . duplicated or facsimile versions of manual signatures. Where typed, §§ 229.801 and 229.802 [Amended] § 210.4±05 [Removed and reserved] duplicated or facsimile signatures are 3. By removing and reserving § 210.4– 11. By amending § 229.801 and used, each signatory to the filing shall 05. § 229.802 by removing and reserving manually sign a signature page or other paragraph (a) in both sections, and by document authenticating, § 210.4±06 [Removed and reserved] removing Industry Guide 1. acknowledging or otherwise adopting 4. By removing and reserving § 210.4– his or her signature that appears in the PART 230ÐGENERAL RULES AND 06. filing. Such document shall be executed REGULATIONS, SECURITIES ACT OF before or at the time the filing is made § 210.4±10 [Amended] 1933 and shall be retained by the registrant 5. By amending § 210.4–10 by 12. The authority citation for Part 230 for a period of five years. Upon request, removing the heading preceding continues to read in part as follows: the registrant shall furnish to the paragraph (b), removing paragraphs (b) Authority: 15 U.S.C. 77b, 77f, 77g, 77h, 77j, Commission or its staff a copy of any or through (h) and redesignating all documents retained pursuant to this paragraphs (i) and (j) as paragraphs (b) 77s, 77sss, 78c, 78d, 78l, 78m, 78n, 78o, 78w, 78ll(d), 79t, 80a–8, 80a–29, 80a–30, and 80a– section. and (c). 37, unless otherwise noted. 17. By amending § 230.406 by revising the heading ‘‘Preliminary Note’’ to read PART 228ÐINTEGRATED * * * * * ‘‘Preliminary Notes’’, by designating the DISCLOSURE SYSTEM FOR SMALL § 230.148 [Removed and reserved] preliminary note as preliminary note 1, BUSINESS ISSUERS 13. By removing and reserving adding preliminary note 2, removing 6. The authority citation for Part 228 § 230.148. from paragraph (a) the words ‘‘or on continues to read as follows: 14. By amending § 230.252 by revising Form F–4 (§ 239.34 of this chapter) complying with General Instruction F of Authority: 15 U.S.C. 77e, 77f, 77g, 77h, 77j, paragraph (h)(2) to read as follows: that Form’’, and removing paragraph (j) 77k, 77s, 77aa(25), 77aa(26), 77ddd, 77eee, § 230.252 Offering statement. 77ggg, 77hhh, 77jjj, 77nnn, 77sss, 78l, 78m, to read as follows: 78n, 78o, 78w, 78ll, 80a–8, 80a–29, 80a–30, * * * * * § 230.406 Confidential treatment of 80a–37, 80b–11, unless otherwise noted. (h) Amendments. (1) * * * information filed with the Commission. § 228.60 [Amended] (2) An amendment to include a Preliminary Notes: (1) * * * 7. By amending § 228.601 (Item 601 of delaying notation pursuant to paragraph (2) All confidential treatment requests Regulation S–B) in the exhibit table, by (g)(2) or to remove one pursuant to shall be submitted in paper format only, removing and reserving exhibit numbers paragraph (g)(3) of this section after the whether or not the filer is an electronic (7), (11), (14), and (28), and by removing initial filing of an offering statement filer. See Rule 101(c)(1)(i) of Regulation and reserving paragraphs (b)(7), (b)(11), may be made by telegram, letter or S–T (§ 232.101(c)(1)(i) of this chapter). (b)(14), and (b)(28). facsimile transmission. Each such * * * * * Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Proposed Rules 9855

§§ 230.445±230.447 [Removed and chapter) complying with General redesignating paragraphs (d) through (i) reserved] Instruction F of that Form’’ to read as as paragraphs (c) through (h). 18. By removing the undesignated follows: center heading Competitive Bids and PART 239ÐFORMS PRESCRIBED removing and reserving §§ 230.445 § 230.473 Delaying amendments. UNDER THE SECURITIES ACT OF 1933 * * * * * through 230.447. 31. The authority citation for Part 239 (c) * * * Any such amendment filed § 230.464 [Amended] continues to read in part as follows: after the filing of the registration Authority: 15 U.S.C. 77f, 77f, 77h, 77j, 77s, 19. By amending § 230.464 by revising statement, any amendment altering the 77sss, 78c, 78l, 78m, 78n, 78o(d), 78w(a), the heading to read ‘‘Effective date of proposed date of public sale of the 78ll(d), 79e, 79f, 79g, 79j, 79l, 79m, 79n, 79q, post-effective amendments to securities being registered, or any 79t, 80a–8, 80a–29, 80a–30 and 80a–37, registration statements filed on Form S– amendment filed pursuant to paragraph unless otherwise noted. 8 and on certain Forms S–3, S–4, F–2 (b) of this section may be made by * * * * * and F–3.’’ and by removing from the telegram, letter or facsimile 32. By amending Form F–6 introductory text the words ‘‘or on Form transmission. * ** (referenced in § 239.36) by removing F–4 (§ 239.34 of this chapter) that there * * * * * Items 3(e) and 4(a) and by redesignating is continued compliance with General Item 3(f) as Item 3(e) and Items 4(b) and Instruction F of that Form’’ and from § 230.494 [Removed and reserved] 4(c) as Items 4(a) and 4(b). paragraph (b) the words ‘‘or a Form F– 23. By removing and reserving 4 registration statement complying with [Note: The text of Form F–6 does not, and § 230.494. the amendments thereto will not, appear in General Instruction F of that Form’’. 24. By amending § 230.504 by revising the Code of Federal Regulations.] 20. By amending § 230.471 by paragraph (b)(1) to read as follows: designating the text as paragraph (a) and § 239.37 [Amended] adding paragraph (b) to read as follows: § 230.504 Exemption for limited offerings 33. By amending Form F–7 and sales of securities not exceeding (referenced in § 239.37) in Part I, Item 3 § 230.471 Signatures to amendments. $1,000,000. by removing the words ‘‘Rule 24 of the (a) * * * * * * * * Commission’s Rules of Practice’’ from (b) Where the Act or the rules (b) Conditions to be met. (1) To the second sentence and inserting ‘‘Item thereunder require a document filed qualify for exemption under this 10(d) of Regulation S–K’’ in its place. with or furnished to the Commission to § 230.504, offers and sales must satisfy be signed, such document shall be the terms and conditions of §§ 230.501 [Note: The text of Form F–7 does not, and manually signed, or signed using either the amendments thereto will not, appear in and 230.502(a). the Code of Federal Regulations.] typed signatures or duplicated or * * * * * facsimile versions of manual signatures. § 239.38 [Amended] Where typed, duplicated or facsimile §§ 230.651±230.656 [Removed and 34. By amending Form F–8 signatures are used, each signatory to reserved] (referenced in § 239.38) in Part I, Item 3 the filing shall manually sign a 25. By removing the undesignated by removing the words ‘‘Rule 24 of the signature page or other document center heading and by removing and Commission’s Rules of Practice’’ from authenticating, acknowledging or reserving §§ 230.651 through 230.656 the second sentence and inserting ‘‘Item otherwise adopting his or her signature (Regulation F). 10(d) of Regulation S–K’’ in its place. that appears in the filing. Such document shall be executed before or at § 230.702 [Amended] [Note: The text of Form F–8 does not, and 26. By removing § 230.702(T). the amendments thereto will not, appear in the time the filing is made and shall be the Code of Federal Regulations.] retained by the registrant for a period of § 230.703 [Amended] five years. Upon request, the registrant § 239.39 [Amended] shall furnish to the Commission or its 27. By removing § 230.703(T). 35. By amending Form F–9 staff a copy of any or all documents § 230.902 [Amended] (referenced in § 239.39) in Part I, Item 3 retained pursuant to this section. by removing the words ‘‘Rule 24 of the 21. By amending § 230.472 by revising 28. By amending § 230.902 at the end of paragraph (a)(1) before the word Commission’s Rules of Practice’’ from the second sentence of paragraph (b) to the second sentence and inserting ‘‘Item read as follows: ‘‘and’’, add the words ‘‘the Helsinki Stock Exchange; the Alberta Stock 10(d) of Regulation S–K’’ in its place. § 230.472 Filing of amendments; number Exchange; the Oslo Stock Exchange; the [Note: The text of Form F–9 does not, and of copies. Mexico Stock Exchange; and the the amendments thereto will not, appear in * * * * * Istanbul Stock Exchange;’’. the Code of Federal Regulations.] (b) * * * Each such copy of the § 239.40 [Amended] PART 232ÐREGULATION S±TÐ amended prospectus shall be 36. By amending Form F–10 accompanied by a copy of the cross GENERAL RULES AND REGULATIONS FOR ELECTRONIC FILINGS (referenced in § 239.40) in Part I, Item 4 reference sheet required by Rule 481(a) by removing the words ‘‘Rule 24 of the (§ 230.481(a)), where applicable, if the 29. The authority citation for Part 232 Commission’s Rules of Practice’’ from amendment of the prospectus resulted continues to read as follows: the second sentence and inserting ‘‘Item in any change in the accuracy of the 10(d) of Regulation S–K’’ in its place. cross reference sheet previously filed. Authority: 15 U.S.C. 77f, 77g, 77h, 77j, *** 77s(a), 77sss(a), 78c(b), 78l, 78m, 78n, 78o(d), [Note: The text of Form F–10 does not, and 78w(a), 78ll, 79t(a), 80a–8, 80a–29, 80a–30 the amendments thereto will not, appear in * * * * * and 80a–37. the Code of Federal Regulations.] 22. By amending § 230.473 by revising the second sentence of paragraph (c) § 232.311 [Amended] § 239.41 [Amended] and by removing from paragraph (d) the 30. By amending § 232.311 by 37. By amending Form F–80 words ‘‘or on Form F–4 (§ 239.34 of this removing paragraph (c) and (referenced in § 239.41) in Part I, Item 3 9856 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Proposed Rules by removing the words ‘‘Rule 24 of the § 240.13a±13 Quarterly reports on Form (c) Part I of the quarterly reports on Commission’s Rules of Practice’’ from 10±Q and Form 10±QSB (§ 249.308a and Form 10–Q or Form 10–QSB need not the second sentence and inserting ‘‘Item § 249.308b of this Chapter). be filed by mining companies not in the 10(d) of Regulation S–K’’ in its place. * * * * * production stage but engaged primarily [Note: The text of Form F–80 does not, and (c) Part I of the quarterly reports on in the exploration for the development the amendments thereto will not, appear in Form 10–Q or Form 10–QSB need not of mineral deposits other than oil, gas or the Code of Federal Regulations.] be filed by mining companies not in the coal, if all of the following conditions production stage but engaged primarily are met: § 239.101 [Removed and reserved] in the exploration for the development (1) The registrant has not been in 38. By removing and reserving of mineral deposits other than oil, gas or production during the current fiscal § 239.101 and by removing Schedules A, coal, if all of the following conditions year or the two years immediately prior B, C, D and Forms 1–G and 3–G are met: thereto; except that being in production referenced in that section. (1) The registrant has not been in for an aggregate period of not more than production during the current fiscal eight months over the three-year period § 239.300 [Removed and reserved] year or the two years immediately prior shall not be a violation of this condition. 39. By removing and reserving thereto; except that being in production (2) Receipts from the sale of mineral § 239.300 and by removing Form 1–F. for an aggregate period of not more than products or from the operations of eight months over the three-year period § 239.701 [Removed and reserved] mineral producing properties by the shall not be a violation of this condition. registrant and its subsidiaries combined 40. By removing and reserving (2) Receipts from the sale of mineral have not exceeded $500,000 in any of § 239.701 and by removing Form 701. products or from the operations of the most recent six years and have not mineral producing properties by the PART 240ÐGENERAL RULES AND aggregated more than $1,500,000 in the registrant and its subsidiaries combined most recent six fiscal years. REGULATIONS, SECURITIES have not exceeded $500,000 in any of * * * * * EXCHANGE ACT OF 1934 the most recent six years and have not 41. The authority citation for Part 240 aggregated more than $1,500,000 in the § 239.15d±17 [Removed and reserved] most recent six fiscal years. continues to read in part as follows: 47. By removing and reserving * * * * * Authority: 15 U.S.C. 77c, 77d, 77g, 77j, § 240.15d–17. 77s, 77eee, 77ggg, 77nnn, 77sss, 77ttt, 78c, § 240.13a±17 [Removed and reserved] 48. By amending § 240.16a–3 by 78d, 78i, 78j, 78l, 78m, 78n, 78o, 78p, 78q, revising paragraph (i) to read as follows: 78s, 78w, 78x, 78ll(d), 79q, 79t, 80a–20, 80a– 44. By removing and reserving 23, 80a–29, 80a–37, 80b–3, 80b–4 and 80b– § 240.13a–17. § 240.16a±3 Reporting transactions and 11, unless otherwise noted. 45. By amending § 240.14d–1 by holdings. * * * * * revising paragraph (d) to read as * * * * * 42. By amending § 240.12b–11 by follows: (i) Signatures. Where the Act or the removing the word ‘‘manually’’ from § 240.14d±1 Scope of and definitions rules, forms, reports or schedules paragraph (b) and by revising paragraph applicable to Regulations 14D and 14E. thereunder require a document filed (d) to read as follows: * * * * * with or furnished to the Commission to be signed, such document shall be § 240.12b±11 Number of copies; (d) Signatures. Where the Act or the rules, forms, reports or schedules manually signed, or signed using either signatures; binding. typed signatures or duplicated or * * * * * thereunder require a document filed with or furnished to the Commission to facsimile versions of manual signatures. (d) Signatures. Where the Act or the be signed, such document shall be Where typed, duplicated or facsimile rules, forms, reports or schedules manually signed, or signed using either signatures are used, each signatory to thereunder, including paragraph (b) of typed signatures or duplicated or the filing shall manually sign a this section, require a document filed facsimile versions of manual signatures. signature page or other document with or furnished to the Commission to Where typed, duplicated or facsimile authenticating, acknowledging or be signed, such document shall be signatures are used, each signatory to otherwise adopting his or her signature manually signed, or signed using either the filing shall manually sign a that appears in the filing. Such typed signatures or duplicated or signature page or other document document shall be executed before or at facsimile versions of manual signatures. authenticating, acknowledging or the time the filing is made and shall be Where typed, duplicated or facsimile otherwise adopting his or her signature retained by the filer for a period of five signatures are used, each signatory to that appears in the filing. Such years. Upon request, the filer shall the filing shall manually sign a document shall be executed before or at furnish to the Commission or its staff a signature page or other document the time the filing is made and shall be copy of any or all documents retained authenticating, acknowledging or retained by the filer for a period of five pursuant to this section. otherwise adopting his or her signature years. Upon request, the filer shall that appears in the filing. Such § 240.16b±1 [Amended] furnish to the Commission or its staff a document shall be executed before or at copy of any or all documents retained 49. By amending § 240.16b–1 by the time the filing is made and shall be pursuant to this section. removing paragraph (c). retained by the filer for a period of five 46. By amending § 240.15d–13 by years. Upon request, the filer shall § 240.16b±4 [Removed and reserved] revising the section heading and furnish to the Commission or its staff a 50. By removing and reserving paragraph (c) to read as follow: copy of any or all documents retained § 240.16b–4. pursuant to this section. § 240.15d±13 Quarterly reports on Form 51. By amending § 240.24b–2 by 43. By amending § 240.13a–13 by 10±Q and Form 10±QSB (§ 249.308a and adding a preliminary note preceding the revising the section heading and § 249.308b of this Chapter). text of paragraph (a) and by removing paragraph (c) to read as follow: * * * * * paragraph (g), to read as follows: Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Proposed Rules 9857

§ 240.24b±2 Nondisclosure of information filed with the Commission and with any exchange. Preliminary Note Confidential treatment requests shall be submitted in paper format only, whether or not the filer is required to submit a filing in electronic format. * * * * * PART 249ÐFORMS, SECURITIES EXCHANGE ACT OF 1934 52. The authority citation for Part 249 continues to read in part as follows: Authority: 15 U.S.C. 78a, et seq., unless otherwise noted; * * * * * § 249.310 [Amended] 53. By amending Form 10–K (referenced in § 249.310) by removing general instruction I. and redesignating general instruction J. as general instruction I. [Note: The text of Form 10–K does not, and the amendments thereto will not, appear in the Code of Federal Regulations.] § 249.310c [Removed and reserved] 54. By removing and reserving § 249.310c and by removing Form 10–C. Dated: March 5, 1996. By the Commission. Margaret H. McFarland, Deputy Secretary. [FR Doc. 96–5607 Filed 3–8–96; 8:45 am] BILLING CODE 8010±01±P federal register March 11,1996 Monday Deployment PlanningProgram;Notice Intelligent TransportationSystems;Early Federal HighwayAdministration Transportation Department of Part V 9859 9860 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices

DEPARTMENT OF TRANSPORTATION seriously pursue deployment of ITS Recipients of Early Deployment applications. Those areas that are ready Planning Program grants will be Federal Highway Administration to participate in the Early Deployment evaluated and selected based on Planning Program will typically have responses to this notice by State or local Intelligent Transportation Systems; the following general characteristics: agencies supplying the following Early Deployment Planning Program (a) An understanding of local needs, information: (b) A demonstrated commitment to AGENCY: Federal Highway A. Information Requested Administration (FHWA), DOT. good transportation management, (c) A cooperative relationship States and metropolitan areas that are ACTION: Notice and request for between agencies, and ready to pursue ITS technologies for information. (d) A general understanding of the areawide applications should respond SUMMARY: The FHWA is announcing its type of ITS user services which will to this announcement by notifying their procedures for implementing the address local needs. local FHWA Division Office. The Intelligent Transportation System (ITS) The Early Deployment Planning expressions of interest should include Early Deployment Planning Program. Program is intended to provide the following information: This Program is intended to provide assistance to these metropolitan areas to 1. A general explanation of local assistance to State and local develop a strategic deployment plan for transportation needs. This may include transportation agencies and ITS that would: a description of (a) the broad-based Metropolitan Planning Organizations (a) Identify and document applicable transportation problems in the area (e.g., (MPOs) for the development of multi- ITS user services, congestion, safety, commercial traffic), year strategic deployment plans for ITS (b) Establish system performance and/or (b) the unique transportation in major metropolitan areas. The criteria, needs of the area (e.g., tourist centers, assistance will take the form of grants (c) Assess the functions and major employment centers, restrictive which provide funding for planning requirements of the system, topography, or environmental issues). studies, and development and (d) Identify and evaluate potential 2. An indication of the local agencies’ documentation of strategic deployment technologies on the basis of commitment to good transportation plans. The goal is to fund up to 10 performance, compatibility, flexibility, management. This may include a metropolitan area studies to be initiated and cost, description of (a) current traffic and in FY 1996, based on availability of (e) Assess potential funding and transit management systems and their funding. implementation options, including use capabilities, (b) resource commitments of private sector resources, and DATES: for transportation operations, Information regarding an area’s (f) Identify time frames for interest in requesting Early Deployment maintenance, and staffing, (c) implementation. transportation projects underway, Planning Program grants should be The Early Deployment Planning (EDP) submitted by May 10, 1996. planned or completed which will Program has targeted the 75 largest support traffic/transit management and/ ADDRESSES: Federal Highway metropolitan areas (listed in Appendix Administration Division Office in the or ITS in the area, and/or (d) an B) for development of ITS strategic indication of the intent to actively appropriate State. See Appendix A for a plans. Sixty-six EDP studies have been listing of Division Office addresses. pursue ITS deployment after completion completed or are currently underway. of the planning study. FOR FURTHER INFORMATION CONTACT: John Areas not appearing on the appended 3. Demonstration of a cooperative A. Gerner, Office of Traffic Management list but which meet the general relationship between agencies. This may and ITS Applications, Federal Highway characteristics described earlier and be shown by (a) an expression of Administration, HTV–3, 400 7th Street which satisfactorily respond to the interest submitted by a lead agency with SW., Washington, D.C. 20590, 202–366– information requested will also be endorsements from the other agencies 9228. considered for participation in the Early involved in the project, (b) a joint letter SUPPLEMENTARY INFORMATION: The Deployment Planning Program. of interest from a broad range of Intelligent Transportation Systems Act Metropolitan areas that demonstrate agencies (highway, transit, tollway, city, of 1991, Part B of Title VI of the their readiness and are selected for state, MPO, etc.) in the area, and/or (c) Intermodal Surface Transportation funding will be contacted for descriptions of past or planned joint Efficiency Act of 1991 (ISTEA), development of a grant proposal. Funds projects with other agencies. established and provided funding, will be obligated through the State 4. A statement demonstrating a including planning grants, for ITS Transportation Agency, in cooperation general understanding of the type of ITS activities. Secs. 6055(b) and 6058(b), with the MPO, by execution of the grant. user services applicable to the area for Pub. L. 102- 240, 105 Stat. 1914, 2192, Early Deployment Planning funds are its future transportation system (in the 2194 (1991)(as amended by the National available at a maximum Federal share of next ten years). Areas are encouraged to Highway System Designation Act of 80 percent with a 20 percent match from take a needs-based approach and focus 1995, Pub. L. 104–59, 109 Stat. 568 non-Federal sources. Funds will be on a broad range of applicable ITS (1995)). Section 6055(b) provides for added to the State’s obligation ceiling in services. Interested agencies are referred grants to State and local governments the amount of the ITS contribution to to the FHWA publication ‘‘IVHS for feasibility and planning studies to approved Early Deployment Planning Planning and Project Deployment develop and implement intelligent projects. The goal is to fund up to 10 Process’’ for a suggested approach. transportation systems. The Early metropolitan area studies in FY 1996, 5. Estimated project cost and potential Deployment Planning Program with priority being given to funding sources for the matching implements the planning grants section metropolitan areas listed in Appendix B portion of the project cost. of the ISTEA. The Early Deployment that have not yet received funding for The information provided in a State Planning Program is designed to EDP studies. At this time the FHWA or local agency’s expression of interest accelerate the application of ITS does not anticipate future solicitations regarding items one through five will technologies in metropolitan areas that for EDP study proposals under this form the basis of the evaluation criteria. have demonstrated a readiness to program. The information will be used by FHWA Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices 9861 and Federal Transit Administration California (HDA–CA), Mr. Fred J. Hempel, Building, 301 S. Park St., Drawer 10056, (FTA) personnel to determine the area’s Administrator, 980 9th Street, Suite 400, Helena, MT 59626–0056 current state of readiness, its current Sacramento, CA 95814–2724 Nebraska (HDA–NE), Mr. Ronald W. Colorado (HDA–CO), Mr. George H. Osborne, Carmichael, Administrator, Federal capabilities, and appropriateness for Administrator, 555 Zang Street, Room 250, Building, Room 220, 100 Centennial Mall participation in the ITS Early Lakewood, CO 80228 North, Lincoln, NE 68508–3851 Deployment Planning Program. Connecticut (HDA–CT), Mr. Donald J. West, Nevada (HDA–NV), Mr. John T. Price, B. General Selection Procedures Administrator, 628–2 Hebron Ave., Suite Administrator, 705 North Plaza Street, 303, Glastonbury, CT 06033 Suite 220, Carson City, NV 89701 Based on the expressions of interest Delaware (HDA–DE), Mr. John J. Gilbert, New Hampshire (HDA–NH), Ms. Kathleen O. and review of all information available, Administrator, 300 South New Street, Laffey, Administrator, Federal Building, the FHWA Region Offices will arrange Room 2101, Dover, DE 19901–6726 Room 204, 279 Pleasant Street, Concord, in priority order the areas that they have District of Columbia (HDA–DC), Mr. Arthur NH 03301 J. Hill, Administrator, Union Center Plaza, New Jersey (HDA–NJ), Mr. Dennis L. Merida, determined to be ready. Initial selection Suite 750, 820 First Street, NE., Administrator, 840 Bear Tavern Road, will be made by a national team Washington, D.C. 20002 Suite 310, Trenton, NJ 08628–1019 (composed of FHWA and FTA Florida (HDA–FL), Mr. Jennings R. Skinner, New Mexico (HDA–NM), Mr. Reuben S. headquarters and field personnel) based Administrator, 227 N. Bronough St., Room Thomas, Administrator, 604 W. San Mateo on available funds. When initial 2015, Tallahassee, FL 32301 Road, Santa Fe, NM 87505 selections are made, selected parties Georgia (HDA–GA), Mr. Larry Dreihaup, New York (HDA–NY), Mr. Harold J. Brown, will be asked to prepare a more detailed Administrator, 1720 Peachtree Road NW., Administrator, Leo W. O’Brien Federal proposal, which will form the basis for Suite 300, Atlanta, GA 30367 Building, 9th Floor, Clinton Avenue & Hawaii (HDA–HI), Mr. Abraham Y. Wong, North Pearl Street, Albany, NY 12207 the commitment of funding through Administrator, Prince Jonah Kuhio North Carolina (HDA–NC), Mr. Nicholas L. execution of a cooperative agreement. Kalanianaole Federal Building, 300 Ala Graf, Administrator, 310 New Bern Approved study agreements will Moana Blvd., Room 3202, Honolulu, HI Avenue, Suite 410, Raleigh, NC 27601 include a requirement to produce a 96850 North Dakota (HDA–ND), Mr. Thomas Kelly, report which may be given wide Idaho (HDA–ID), Mr. Jack T. Coe, Administrator, 1471 Interstate Loop, distribution in order to assist others Administrator, 3050 Lakeharbor Lane, Bismarck, ND 58501–0567 who are interested in deployment of ITS Suite 126, Boise, ID 83703 Ohio (HDA–OH), Mr. William C. Jones, Illinois (HDA–IL), Mr. Michael A. Cook, Administrator, 200 North High Street, services. Implementation of Administrator, 3250 Executive Park Drive, Room 328, Columbus, OH 43215 recommendations from the report will Springfield, IL 62705 be monitored and evaluated. Indiana (HDA–IN), Mr. Arthur A. Fendrick, Oklahoma (HDA–OK), Mr. James K. Erickson, If a selected area chooses to advertise Administrator, 575 N. Pennsylvania Street, Administrator, 715 S. Metropolitan, Suite for consultant services to develop their Room 254, Indianapolis, IN 46204–1576 700, Oklahoma City, OK 73108 strategic deployment plan, they are Iowa (HDA–IA), Mr. Ronald R. Salmons, Oregon (HDA–OR), Mr. David G. Reilly, encouraged to consider Small and Assistant Division Administrator, 105 Assistant Division Administrator, The Disadvantaged Business Enterprise Sixth Street, Ames, IA 50010–6337 Equitable Center, Suite 100, 530 Center (SBE/DBE) firms, and Historically Black Kansas (HDA–KS), Mr. David R. Geiger, Street, NE., Salem, OR 97301 Administrator, 3300 South Topeka Pennsylvania (HDA–PA), Mr. Manuel A. Colleges and Universities (HBCU). Boulevard, Suite 1, Topeka, KS 66611– Marks, Administrator, 228 Walnut Street, Assistance Provided by FHWA 2237 Room 558, Harrisburg, PA 17101–1702 Kentucky (HDA–KY), Mr. Paul E. Toussaint, Puerto Rico (HDA–PR), Mr. Nelson Technical assistance is available from Administrator, John C. Watts Federal Castellanos, Administrator, Frederico the FHWA and other sources regardless Building and U.S. Courthouse, 330 W. Degetau Federal Building & U.S. of the status of an individual Broadway, Frankfort, KY 40602 Courthouse, Carlos Chardon Street, Room metropolitan area relative to ITS Louisiana (HDA–LA), Mr. William A. 329, Hato Rey, PR 00918 deployment. Even though an individual Sussman, Administrator, Federal Building, Rhode Island (HDA–RI), Mr. Gordon G. metropolitan area may not be ready to Room 255, 750 Florida Street, Baton Rouge, Hoxie, Administrator, 380 Westminster LA 70821 Mall, 5th Floor, Providence, RI 02903 participate in the Early Deployment Maine (HDA–ME), Mr. Paul L. Lariviere, South Carolina (HDA–SC), Mr. Robert J. Planning Program, technical assistance Administrator, Edmund S. Muskie Federal Probst, Administrator, Strom Thurmond can be provided, as needed, in Building, 40 Western Avenue, Room 614, Federal Building, 1835 Assembly Street, development of long range strategic Augusta, ME 04330 Suite 758, Columbia, SC 29201 plans for deployment of ITS user Maryland (HDA–MD), Ms. Susan J. Binder, South Dakota (HDA–SD), Mr. Donald F. services. The local FHWA Division Administrator, The Rotunda, Suite 220, Kamnikar, Administrator, P.O. Box 700, Offices will be able to identify specific 711 West 40th Street, Baltimore, MD 21211 Pierre, SD 57501–0700 areas where technical assistance is Massachusetts (HDA–MA), Mr. Peter C. Tennessee (HDA–TN), Mr. Dennis C. Cook, Markle, Administrator, 55 Broadway—10th Administrator, 249 Cumberland Bend available. Floor, Cambridge, MA 02142 Drive, Nashville, TN 37228 Appendix A—List of FHWA Division Michigan (HDA–MI), Mr. A George Ostensen, Texas (HDA–TX), Mr. Curtis D. Reagan, Office Addresses Administrator, Federal Building, Room Administrator, Federal Office Building, 207, 315 West Allegan Street, Lansing, MI 300 East Eighth Street, Room 826, Austin, Alabama (HDA–AL), Mr. Joe D. Wilkerson, 48933 TX 78701 Administrator, 500 Eastern Blvd., Suite Minnesota (HDA–MN), Mr. Alan R. Steger, Utah (HDA–UT), Mr. Michael G. Richie, 200, Montgomery, AL 36117–2018 Administrator, Metro Square Bldg., Suite Administrator, 2520 West 4700 South, Alaska (HDA–AK), Mr. Robert E. Ruby, 490, Seventh & Robert Streets, St. Paul, MN Suite 9A, Salt Lake City, UT 84118 Administrator, 709 W. Ninth Street, Room 55101 Vermont (HDA–VT), Mr. William Fung, 851, Juneau, AK 99802–1648 Mississippi (HDA–MS), Ms. Phyllis E. Engineering Coordinator, Federal Building, Arizona (HDA–AZ), Mr. Robert E. Hollis, Young, Administrator, 666 North Street, 87 State Street, Montpelier, VT 05602 Administrator, 234 N. Central Ave., Suite Suite 105, Jackson, MS 39202-3199 Virginia (HDA–VA), Mr. Roberto Fonseca- 330, Phoenix, AZ 85004 Missouri (HDA–MO), Mr. Gerald J. Reihsen, Martinez, Administrator, 1504 Santa Rosa Arkansas (HDA–AR), Mr. William D. Administrator, P.O. Box 1787, Jefferson Road, Suite 205, Richmond, VA 23229 Richardson, Administrator, Federal Office City, MO 65102 Virgin Islands (HVI–01), Administrator, U.S. Bldg., Room 3128, 700 West Capitol Montana (HDA–MT), Mr. Henry D. Federal Building & Courthouse, Charlotte Avenue, Little Rock, AR 72201–3298 Honeywell, Administrator, Federal Office Amalie, Room 281, St. Thomas, VI 00801 9862 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices

Washington (HDA–WA), Mr. Gene K. Fong, Pittsburgh, Beaver Valley, PA1 Raleigh-Durham, NC1 Administrator, Suite 501, Evergreen Plaza, Phoenix, AZ1 Scranton, Wilkes, Barre, PA1 711 South Capitol Way, Olympia, WA Tampa, St. Petersburg, Clearwater, FL1 Tulsa, OK 98501 Denver, Boulder, CO1 Grand Rapids, MI1 West Virginia (HDA–WV), Mr. David E. Cincinnati, Hamilton, OH–KY–IN Allentown, Bethlehem, Easton, PA–NJ Bender, Administrator, 550 Eagan Street, Milwaukee, Racine, WI Fresno, CA Suite 300, Charleston, WV 25301 Kansas City MO–KS1 Tucson, AZ1 Wisconsin (HDA–WI), Mr. James E. St. John, Sacramento, CA1 Syracuse, NY1 Administrator, 567 D’Onofrio Drive, Portland, Vancouver, OR–WA1 Greenville, Spartanburg, SC1 Madison, WI 53719 Norfolk, Virginia Beach, Newport, VA1 Omaha, NE–IA1 Wyoming (HDA–WY), Mr. Frederick A. Columbus, OH1 Toledo, OH Behrens, Administrator, 1916 Evans San Antonio, TX1 Knoxville, TN Avenue, Cheyenne, WY 82001–3764 Indianapolis, IN1 El Paso, TX1 Appendix B—75 Largest Metropolitan New Orleans, LA1 Harrisburg, Lebanon, Carlisle, PA 1 Areas By Population Buffalo, Niagara Falls, NY Bakersfield, CA Charlotte, Gastonia, Rock Hill, NC1 New Haven, Meriden, CT1 New York, Northern New Jersey, Long Island, Providence, Pawtucket, Fall River, RI1 Springfield, MA1 NY–NJ1 Hartford, New Britain, Middletown, CT1 Baton Rouge, LA Los Angeles, Anaheim, Riverside, CA Orlando, FL1 Little Rock, North Little Rock, AR Chicago, Gary, Lake County, IL–IN–WI1 Salt Lake City, Odgon, UT1 Charleston, SC1 San Francisco, Oakland, San Jose, CA1 Rochester, NY1 Youngstown, Warren, OH–PA Philadelphia, Wilmington, Trenton, PA–NJ1 Nashville, TN1 Wichita, KS Detroit, Ann Arbor, MI1 Memphis, TN1 (Secs. 6055(b) and 6058(b), Pub. L. 102–240, Boston, Lawrence, Salem, MA–NH1 Oklahoma City, OK 105 Stat. 1914, 2192, 2194; 23 U.S.C.; 49 CFR Washington, D.C.1 Louisville, KY–IN1 1.48) Dallas, Fort Worth, TX1 Dayton, Springfield, OH1 Issued on: March 4, 1996. Houston, Galveston, Brazoria, TX 1 Greensboro, Winston-Salem, High Point, NC Rodney E. Slater, Miami, Fort Lauderdale, FL Birmingham, AL1 Atlanta, GA1 Jacksonville, FL1 Federal Highway Administration. Cleveland, Akron, Lorain, OH1 Albany, Schenectady, Troy, NY [FR Doc. 96–5742 Filed 3–8–96; 8:45 am] Seattle, Tacoma, WA1 Richmond, Petersburg, VA1 BILLING CODE 4910±22±P San Diego, CA1 West Palm Beach, Boca Raton, Delray, FL 1 Minneapolis, St. Paul, MN–WI Honolulu, HI 1 Metropolitan areas that have received ITS Early St. Louis, MO–IL1 Austin, TX1 Deployment Planning funding through prior Baltimore, MD1 Las Vegas, NV1 announcements. federal register March 11,1996 Monday Fiscal Year1996;Notice Inviting ApplicationsforNewAwards Vocational InstitutionsProgram;Notice Tribally ControlledPostsecondary Education Department of Part VI 9863 9864 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices

DEPARTMENT OF EDUCATION for fiscal year 1996. As a result of final distinguishing characteristics, including action, funds available for this the characteristics of the students the [CFDA No.: 84.245] competition could be reduced or even institution serves and plans to serve, Tribally Controlled Postsecondary eliminated. and the programs of study it offers and Vocational Institutions Program; Estimated Range of Awards: proposes to offer. Notice Inviting Applications for New $1,054,000–$1,800,000 (funding for first (2) Data for the past three academic Awards for Fiscal Year (FY) 1996 12 months). years reflecting the number and Estimated Average Size of Awards: required qualifications of the teaching Note to Applicants: This notice is a $1,459,500 (funding for first 12 months). and administrative staff, the number of complete application package. Together Estimated Number of Awards: A students enrolled, attendance rates, with the statute authorizing the program minimum of 2. dropout rates, graduation rates, rate of and applicable regulations governing Note: The Department is not bound by any job placement or college enrollment the program, including the Education estimates in this notice. after graduation, and the most Department General Administrative significant scholastic problems affecting Project Period: 5 years. Regulations (EDGAR), this notice the student population. Applicable Regulations: contains all of the information, (3) A description of how the application forms, and instructions (a) The Education Department General Administrative Regulations (EDGAR) as institution is responsive to the current needed to apply for a grant under this and projected labor market needs in its competition. follows: (1) 34 CFR Part 75 (Direct Grant geographic area, including the Purpose of Program: The Tribally institution’s plans for placement of Controlled Postsecondary Vocational Programs). (2) 34 CFR Part 77 (Definitions that students. Institutions Program provides grants for (4) Assumptions concerning the the operation and improvement of Apply to Department Regulations). (3) 34 CFR Part 80 (Uniform institutional environment, the potential tribally controlled postsecondary number of students to be served, vocational institutions to ensure Administrative Requirements for Grants and Cooperative Agreements to State enrollment trends, and economic factors continued and expanded educational that could affect the institution. opportunities for Indian students, and to and Local Governments). (4) 34 CFR Part 81 (General Education (5) Major problems or deficiencies allow for the improvement and that inhibit the institution from expansion of the physical resources of Provisions Act— Enforcement). (5) 34 CFR Part 82 (New Restrictions realizing its mission. those institutions. (6) Long-range and short-range goals The Secretary intends to distribute all on Lobbying). that will chart the growth and funds available under this program (6) 34 CFR Part 85 (Governmentwide development of the institution and through this competitive grant process Debarment and Suspension address the problems identified under and, therefore, it is anticipated that no (Nonprocurement) and paragraph (e)(5) of this section. funds would be reserved to fund Governmentwide Requirements for (7) Measurable objectives related to additional training equipment costs at a Drug-Free Workplace (Grants)). reaching each goal. later date. (7) 34 CFR Part 86 (Drug-Free Schools The Secretary wishes to highlight for and Campuses). (8) Time-frames for achieving the potential applicants that this program (b) The regulations for this program in goals and objectives described in can help to further the National 34 CFR Parts 400 and 410. paragraphs (e)(6) and (7) of this section. Education Goals. Specifically, the Content of the Application: To receive (9) Priorities for implementing Tribally Controlled Postsecondary an institutional support grant under the improvements concerning instructional Vocational Institutions Program Tribally Controlled Postsecondary and student support, capital supports the National Education Goal Vocational Institutions Program, an expenditures, equipment, and other that, by the year 2000, every adult applicant must include the following priority areas. American will be literate and will information in the application: (10) Major resource requirements possess the knowledge and skills (a) Documentation showing that the necessary to achieve the institution’s necessary to compete in a global institution is eligible according to the goals and objectives, including economy and exercise the rights and requirements in 34 CFR 410.2. personnel, finances, equipment, and responsibilities of citizenship. (b) A description of the fiscal control facilities. Eligible Applicants: A tribally and fund accounting procedures to be (11) A detailed budget identifying the controlled postsecondary vocational used for all funds received under this costs to be paid with a grant under this institution, as defined in 34 CFR 410.5, program that will allow the Secretary to program and resources available from that meets the requirements in 34 CFR monitor expenditures and the Education other Federal, State, and local sources 410.2 is eligible for an award under this Department Inspector General, the U.S. that will be used to achieve the program. Comptroller General, or an independent institution’s goals and objectives. Deadline for Transmittal of non-Federal auditor to audit the Budget and cost information must be Applications: April 10, 1996. institution’s programs. sufficiently detailed to enable the Available Funds: $2,919,000 for the (c) The institution’s operating Secretary to determine the amount of first 12 months. Funding for the second, expenses for the preceding fiscal year, payments pursuant to section 386(b)(2) third, fourth, and fifth years of the including allowable expenses listed in of the Carl D. Perkins Vocational and project period for any grant awarded 34 CFR 410.30. Applied Technology Education Act under this competition is subject to the (d) The institution’s Indian student (Act). The statement must include availability of funds and to a grantee count. information on allowable expenses meeting the requirements in 34 CFR (e) A comprehensive development listed in 34 CFR 410.30. 75.253. plan that must address— (12) Strategies and resources for Applicants should note that Congress (1) The institutional mission objectively evaluating the institution’s has not yet enacted final appropriations statement, i.e., a broad statement of progress towards, and success in, for Department of Education programs purpose, that identifies the institution’s achieving its goals and objectives. Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices 9865

Selection Criteria: The Secretary uses (3) Includes a staff management plan Application Control Center, Attention: the following selection criteria to likely to ensure effective administration (CFDA# 84.245), Room #3633, Regional evaluate applications for new grants of the project activities. Office Building #3, 7th and D Streets, under this competition. If only one or (d) Budget and cost effectiveness. (20 SW., Washington, DC two applicants are eligible, the Secretary points) The Secretary reviews each (b) An applicant must show one of the selects each eligible applicant. The application to determine the extent to following as proof of mailing: amount of each grant is determined by which— (1) A legibly dated U.S. Postal Service the quality of the application, based on (1) The budget is adequate to support postmark. the selection criteria, and the respective the proposed activities to be funded (2) A legible mail receipt with the needs of the applicants. If there are under this program, including capital date of mailing stamped by the U.S. more than two elibible applicants, the expenditures and acquisition of Postal Service. Secretary ranks each application using equipment, if applicable; (3) A dated shipping label, invoice, or the selection criteria. The Secretary (2) Costs are necessary and reasonable receipt from a commercial carrier. funds two or more applicants. The in relation to similar activities the (4) Any other proof of mailing number of grants made and the amount institution carried out in previous years; acceptable to the Secretary. of each grant is determined by taking and (c) If an application is mailed through into account the quality of the (3) The budget narrative justifies the the U.S. Postal Service, the Secretary applications and the respective needs of expenditures. does not accept either of the following the applicants. (e) Evaluation plan. (10 points) The as proof of mailing: (1) A private metered postmark. The program regulations in 34 CFR Secretary reviews each application to determine the quality of the evaluation (2) A mail receipt that is not dated by 410.21 assign a maximum of 85 points the U.S. Postal Service. for these criteria. Further, under 34 CFR plan the institution plans to use to 410.20(b) the Secretary is authorized to determine its progress towards, and Notes: (1) The U.S. Postal Service does not distribute an additional 15 points success in, achieving its goals and uniformly provide a dated postmark. Before among the criteria to bring the total to objectives, including the extent to relying on this method, an applicant should check with its local post office. a maximum of 100 points. The which— maximum score for each criterion is (1) The plan identifies, at a minimum, (2) The Application Control Center indicated in parentheses. types of data to be collected, expected will mail a Grant Application Receipt (a) Institutional goals and objectives. outcomes, and how those outcomes will Acknowledgement to each applicant. If (15 points) The Secretary reviews each be measured; an applicant fails to receive the (2) The methods of evaluation are application to determine the extent to notification of application receipt appropriate and, to the extent possible, which the applicant’s current and future within 15 days from the date of mailing are objective and produce data that are institutional goals and objectives are— the application, the applicant should quantifiable; and (1) Realistic and defined in terms of call the U.S. Department of Education (3) The methods of evaluation provide measurable results; and Application Control Center at (202) periodic data that can be used for (2) Directly related to the problems to 708–9494. ongoing program improvement. (3) The applicant must indicate on the be solved. Additional Factors: After evaluating (b) Comprehensive development plan. envelope and—if not provided by the applications according to the criteria in Department—in Item 10 of the (30 points) The Secretary reviews each 34 CFR 410.21 and consulting, to the application to determine the extent to Application for Federal Assistance extent practicable, with boards of (Standard Form 424) the CFDA which the plan is effectively designed to trustees and the tribal governments meet the applicant’s current and future number—and suffix letter, if any—of the chartering the institutions being competition under which the institutional goals and objectives, considered, the Secretary determines including instructional and student application is being submitted. whether the most highly rated Application Instructions and Forms: support needs, and equipment and applications are equitably distributed All forms and instructions are included capital requirements. among Indian tribes. as Appendix A of this notice. Questions (c) Implementation strategy. (25 The Secretary may select other and answers pertaining to this program points) The Secretary reviews each applications for funding if doing so are included, as Appendix B, to assist application to determine the extent to would improve the distribution of potential applicants. which an applicant’s implementation projects among Indian tribes. To apply for an award under this strategy— In addition to the criteria in 34 CFR program competition, your application (1) For each major activity funded 410.21, the Secretary considers whether must be organized in the following under this program, is comprehensive funding a particular applicant order and include the following five and likely to be effective, taking into duplicates an effort already being made. parts: account the applicant’s past Instructions for Transmittal of Part I: Application for Federal performance and the data for the past Applications: Assistance (Standard Form 424 (Rev. 4– three academic years reflecting the (a) If an applicant wants to apply for 88)) and instructions. number and required qualifications of a grant, the applicant shall— Part II: Budget Information—Non- the teaching and administrative staff, (1) Mail the original and six copies of Construction Programs (ED Form No. the number of students enrolled, the application on or before the 524) and instructions. attendance rates, dropout rates, deadline date to: U.S. Department of Part III: Budget Narrative. graduation rates, rate of job placement Education, Application Control Center, Part IV: Program Narrative. or college enrollment after graduation, Attention: (CFDA# 84.245), Washington, Part V: Additional Assurances and and the most significant scholastic DC 20202–4725. Certifications: problems affecting the student (2) Hand deliver the original and six a. Assurances—Non-Construction population; copies of the application by 4:30 p.m. Programs (Standard Form 424B). (2) Includes a realistic timetable for (Washington, DC time) on the deadline b. Certification regarding Lobbying; each such activity; and date to: U.S. Department of Education, Debarment, Suspension, and Other 9866 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices

Responsibility Matters; and Drug-Free original ink signature. All applicants of application notices for discretionary Workplace Requirements (ED 80–0013) must submit ONE original signed grant competitions, can be viewed on and Instructions. application, including ink signatures on the Department’s electronic bulletin c. Certification regarding Debarment, all forms and assurances and SIX copies board (ED Board), telephone (202) 260– Suspension, Ineligibility and Voluntary of the application. Please mark each 9950; on the Internet Gopher Server at Exclusion: Lower Tier Covered application as original or copy. No grant GOPHER.ED.GOV (under Transactions (ED 80–0014, 9/90) and may be awarded unless a completed Announcements, Bulletins, and Press Instructions. (NOTE: ED 80–0014 is application form has been received. Releases); or on the World Wide Web (at intended for the use of grantees and For Further Information Contact: http://www.ed.gov/money.htm). should not be transmitted to the Roberta Lewis, U.S. Department of However, the official application notice Education, 600 Independence Avenue, Department.) for a discretionary grant competition is d. Disclosure of Lobbying Activities SW. (Room 4523—MES), Washington, the notice published in the Federal (Standard Form LLL) (if applicable) and DC 20202–7242. Telephone (202) 205– Register. Instructions, and Disclosure of Lobbying 5680. Individuals who use a Activities Continuation Sheet (Standard telecommunications device for the deaf Program Authority: 20 U.S.C. 2397–2397h. Form LLL–A). (TDD) may call the Federal Information Dated: March 6, 1996. e. Notice to all Applicants. Relay Service (FIRS) at 1–800–877–8339 Jon Weintraub, An applicant may submit information between 8 a.m. and 8 p.m., Eastern time, Acting Assistant Secretary, Office of on a photostatic copy of the forms in Monday through Friday. Vocational and Adult Education. Appendix A. However, each of the Information about the Department’s pertinent documents must each have an funding opportunities, including copies BILLING CODE 4000±01±P Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices 9867

Appendix A 9868 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices 9869 9870 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices 9871 9872 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices

BILLING CODE 4000±01±C Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices 9873

APPENDIX A (minimum wage is the basis for amount per Before preparing your application, you Part II—Budget Information hour—$4.25). should carefully read the legislation and 12. Total Costs: Show total for lines 9 regulations of the program, eligibility Instructions for Part II—Budget Information through 11. requirements, information on any priority set Sections A and B—Budget Summary by by the Secretary, and the selection criteria for Categories Instructions for Part III—Budget Narrative this competition. 1. Personnel: Show salaries to be paid to Prepare a detailed Budget Narrative for Your program narrative should be clear, personnel. each year of the project that justifies, and/or concise, and to the point. Begin the narrative 2. Fringe Benefits: Indicate the rate and clarifies the budget figures shown in Section with a one page abstract or summary of your amount of fringe benefits. A. Explain: proposed project. Then describe the project 3. Travel: Indicate the amount requested 1. How personnel costs are calculated— in detail, addressing each selection criterion for both local and out of State travel of provide yearly and/or hourly rates; for other in order. Project Staff. Include funds for at least one than full-time staff, provide hours per day, The Secretary strongly requests you limit trip for two people to attend the Project week, month, and year. the program narrative to no more than 30 Director’s Workshop. 2. The basis used to estimate certain costs double-spaced, typed pages (on one side 4. Equipment: Indicate the cost of non- (professional personnel, consultants, travel, only), although the Secretary will consider expendable personal property that has a cost indirect costs) and any other costs that may your application if it is longer. Be sure to of $5,000 or more per unit. appear unusual; number consecutively ALL pages in your 5. Supplies: Include the cost of consumable 3. How the major cost items relate to the application. supplies and materials to be used during the proposed project activities (refer to You may include supporting project period. application page); documentation as appendices. Be sure that 6. Contractual: Show the amount to be 4. The costs of the project’s evaluation this material is concise and pertinent to this used for: (1) procurement contracts (except component; program competition. those which belong on other lines such as 5. What matching occurs in each budget You are advised that: supplies and equipment); and (2) sub- category. (a) The Department considers only contracts. Please limit this section to no more than information contained in the application in 7. Construction: Not Applicable five pages. ranking applications for funding 8. Other: Indicate all direct costs not consideration. Letters of support sent clearly covered by lines 1 through 6 above, Instructions for Part IV—Program Narrative separately from the formal application including consultants and capital The program narrative will comprise the package are not considered in the review by expenditures. largest portion of your application. This part the technical review panels. (EDGAR Sec. 9. Total Direct Cost: Show the total for is where you spell out the who, what, when, 75.217) Lines 1 through 8. where, why, and how of your proposed (b) The technical review panel evaluates 10. Indirect Costs: Indicate the rate and project. each application solely on the basis of the amount of indirect costs. Although you will not have a form to fill established technical review criteria. Letters (Note: Except for grants to Federally out for your narrative, there is a format. This of support contained in the application will recognized Indian tribes, the indirect cost format is the selection criteria. Because your strengthen the application only insofar as rate cannot exceed 8% of the total direct application will be reviewed and rated by a they contain commitments which pertain to charges.) review panel on the basis of the selection the established technical review criteria, 11. Training/stipend Cost: Indicate cost per criteria, your narrative should follow the such as commitment and resources. student and number of hours of instruction order and format of the criteria. BILLING CODE 4000±01±P 9874 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices 9875 9876 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices 9877 9878 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices 9879 9880 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices 9881

BILLING CODE 4000±01±C 9882 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices

Notice To All Applicants might describe how it will make the respond to specific questions about Thank you for your interest in this materials available on audio tape or in braille application requirements, evaluation criteria, program. The purpose of this enclosure is to for students who are blind. and the priorities. Applicants should inform you about a new provision in the (3) An applicant that proposes to carry out understand that this previous preapplication Department of Education’s General Education a model science program for secondary consultation is not required, nor will it in Provisions Act (GEPA) that applies to students and is concerned that girls may be any way influence the success of an applicants for new grant awards under less likely than boys to enroll in the course, application. Department programs. This provision is might indicate how it tends to conduct Q. When will I find out if I’m going to be section 427 of GEPA, enacted as part of the ‘‘outreach’’ efforts to girls, to encourage their funded? Improving America’s Schools Act of 1994 enrollment. A. You can expect to receive notification (Pub. L. 103–382). We recognize that many applicants may within 3 to 4 months of the application already be implementing effective steps to closing date, depending on the number of To Whom Does This Provision Apply? ensure equity of access and participation in applications received and the number of Section 427 of GEPA affects applicants for their grant programs, and we appreciate your competitions with closing dates at about the new discretionary grant awards under this cooperation in responding to the same time. program. ALL APPLICANTS FOR NEW requirements of this provision. Q. Once my application has been reviewed AWARDS MUST INCLUDE INFORMATION Estimated Burden Statement by the review panel, can you tell me the IN THEIR APPLICATIONS TO ADDRESS outcome? THIS NEW PROVISION IN ORDER TO According to the Paperwork Reduction Act A. No. Every year we are called by a RECEIVE FUNDING UNDER THIS of 1995, no persons are required to respond number of applicants who have legitimate PROGRAM. to a collection of information unless it reasons for needing to know the outcome of displays a valid OMB control number. The the review prior to official notification. Some What Does This Provision Require? valid OMB control number for this applicants need to make job decisions, some Section 427 requires each applicant for information collection is 1801–0004 (Exp. 8/ need to notify a local school district, etc. funds (other than an individual person) to 31/98). The time required to complete this Regardless of the reason, because final include in its application a description of the information collection is estimated to vary funding decisions have not been made at that steps the applicant proposes to take to ensure from 1 to 3 hours per response, with an point, we cannot share information about the equitable access to, and participation in, its average of 1.5 hours, including the time to review with anyone. federally-assisted program for students, review instructions, search existing data Q. Will my application be returned if I am teachers, and other program beneficiaries resources, gather and maintain the data not funded? with special needs. needed, and complete and review the A. We no longer return unsuccessful information collection. If you have any This section allows applicants discretion applications. Thus, applicants should retain comments concerning the accuracy of the in developing the required description. The at least one copy of the application. time estimate(s) or suggestions for improving statute highlights six types of barriers that Q. Can I obtain copies of reviewers’ this form, please write to: U.S. Department of can impede equitable access or participation comments? Education, Washington, DC 20202–4651. that you may address: gender, race, national A. Upon written request, reviewers’ origin, color, disability, or age. Based on local Appendix B comments will be mailed to unsuccessful circumstances, you can determine whether applicants. these or other barriers may prevent your Potential applicants frequently direct Q. Is travel allowed under these projects? students, teachers, etc. from equitable access questions to officials of the Department A. Travel associated with carrying out the or participation. Your description need not regarding application notices and project is allowed. Because we will request be lengthy; you may provide a clear and programmatic and administrative regulations the project directors and evaluators of funded succinct description of how you plan to governing various direct grant programs. To address those barriers that are applicable to assist potential applicants the Department projects to attend an annual project directors your circumstances. In addition, the has assembled the following most commonly meeting, you should include annual trips for information my be provided in a single asked questions. each to Washington, D.C., in the travel narrative, or, if appropriate, may be Q. Can we get an extension of the budget. Travel to conferences is sometimes discussed in connection with related topics deadline? allowed when it is for purposes of in the application. A. No. A closing date may be changed only dissemination. Section 427 is not intended to duplicate under extraordinary circumstances. Any Q. If my application receives high scores the requirements of civil rights statutes, but change must be announced in the Federal from the reviewers, does that mean that I will rather to ensure that, in designing their Register and apply to all applications. receive funding? projects, applicants for Federal funds address Waivers for individual applications cannot A. Not necessarily. It is often the case that equity concerns that may affect the ability of be granted regardless of the circumstances. the number of applications scored highly by certain potential beneficiaries to fully Q. How many copies of the application the reviewers exceeds the dollars available participate in the project and to achieve to should I submit and must they be bound? for funding projects under a particular high standards. Consistent with program A. Our new policy calls for an original and competition. The order of selection, which is requirements and its approved application, six copies to be submitted. The binding of based on the scores of all the applications an applicant may use the Federal funds applications is optional and discouraged. and other relevant factors, determines the awarded to it to eliminate barriers it Q. We just missed the deadline for the XXX applications that can be funded. identifies. competition. May we submit under another Q. What happens during negotiations? competition? A. During negotiations technical and What Are Examples of How an Applicant A. Yes, however, the likelihood of success budget issues may be raised. These are issues Might Satisfy the Requirement of This is not good. A properly prepared application that have been identified during the panel Provision? must meet the requirements of the and staff reviews that require clarification. The following examples may help illustrate competition to which it is submitted. Sometimes issues are stated as ‘‘conditions.’’ how an applicant may comply with section Q. I’m not sure which competition is most These are issues that have been identified as 427. appropriate for my project. What should I do? so critical that the award cannot be made (1) An applicant that proposes to carry out A. We are happy to discuss any questions unless those conditions are met. Questions an adult literacy project serving, among with you and provide clarification on the may also be raised about the proposed others, adults with limited English unique elements of the various competitions. budget. Generally, these issues are raised proficiency, might describe in its application Q. Will you help us prepare our because there is inadequate justification or how it intends to distribute a brochure about application? explanation of a particular budget item, or the proposed project to such potential A. We are happy to provide general because the budget item seems unimportant participants in their native language. program information. Clearly, it would not be to the successful completion of the project. (2) An applicant that proposes to develop appropriate for staff to participate in the If you are asked to make changes that you instructional materials for classroom use actual writing of an application, but we can feel could seriously affect the project’s Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Notices 9883 success, you may provide reasons for not Q. Where can copies of the Federal (1) Carl D. Perkins Vocational and Applied making the changes or provide alternative Register, program regulations, and Federal Technology Education Act (Perkins Act) suggestions. Similarly, if proposed budget statutes be obtained? (Public Law 101–392, 104 Stat. 753 (1990) 20 reductions will, in your opinion, seriously A. Copies of these materials can usually be U.S.C. §§ 2301 et seq. (Supp. IV) 1992). affect the project activities, you may explain found at your local library. If not, they can (2) State Vocational and Applied why and provide additional justification for be obtained from the Government Printing Technology Education Programs and the proposed expenses. An award cannot be Office by writing to: Superintendent of National Discretionary Programs of made until all negotiation issues have been Documents, U.S. Government Printing Office, Vocational Education Final Regulations, 34 CFR Parts 400 and 410. resolved. Washington, D.C. 20402. Telephone: (202) (3) Education Department General Q. How do I provide an assurance? 783–3238. When requesting copies of Administrative Regulations, 34 CFR Parts 74, A. Except for SF–424B, ‘‘Assurances—Non- regulations or statutes, it is helpful to use the 75, 77, 79, 80, 81, 82, 85, and 86. Construction Programs,’’ simply state in specific name, public law number, or part writing that you are meeting a prescribed number. The material referenced in this [FR Doc. 96–5714 Filed 3–8–96; 8:45 am] requirement. notice should be referred to as follows: BILLING CODE 4000±01±P federal register March 11,1996 Monday Union Independent States of theFormerSoviet Assistance Program fortheNew Presidential Determination 96±14Ð Producing andTransit Countries Certification forMajorNarcotics Presidential Determination96±13Ð Act, 1996 and RelatedProgramsAppropriations Foreign Operations,ExportFinancing, 604(b(1) andSection604(b)(5)ofthe Written PolicyJustificationUnderSection Consultations andSubmissionofa Delegation ofResponsibilityfor Memorandum ofFebruary29,1996Ð Peaceful UsesofNuclearEnergy and theArgentineRepublicConcerning Between theUnitedStatesofAmerica Proposed AgreementforCooperation Presidential Determinationonthe Presidential Determination96±12Ð The President Part VII 9885

9887

Federal Register Presidential Documents Vol. 61, No. 48

Monday, March 11, 1996

Title 3— Presidential Determination No. 96–12 of February 28, 1996

The President Presidential Determination on the Proposed Agreement for Cooperation Between the United States of America and the Argentine Republic Concerning Peaceful Uses of Nuclear En- ergy

Memorandum for the Secretary of State [and] the Secretary of Energy

I have considered the proposed Agreement for Cooperation Between the United States of America and the Argentine Republic Concerning Peaceful Uses of Nuclear Energy, along with the views, recommendations, and state- ments of the interested agencies. I have determined that the performance of the agreement will promote, and will not constitute an unreasonable risk to, the common defense and security. Pursuant to section 123 b. of the Atomic Energy Act of 1954, as amended (42 U.S.C. 2153 (b)), I hereby approve the proposed agreement and authorize you to arrange for its execution. The Secretary of State is authorized and directed to publish this determina- tion in the Federal Register. œ–

THE WHITE HOUSE, Washington, February 28, 1996. [FR Doc. 96–5909 Filed 3–8–96; 8:45 am] Biling code 4710–10–M 9889 Presidential Documents

Memorandum of February 29, 1996

Delegation of Responsibility for Consultations and Submis- sion of a Written Policy Justification Under Section 604(b)(1) and Section 604(b)(5) of the Foreign Operations, Export Fi- nancing, and Related Programs Appropriations Act, 1996

Memorandum for the Secretary of State

By the authority vested in me by the Constitution and laws of the United States of America, including section 301 of title 3 of the United States Code, I hereby delegate to the Secretary of State the functions vested in the President by section 604(b)(1) and 604(b)(5) of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1996 (Public Law 104–107). Any reference in this memorandum to provisions of any Act related to the subject of this memorandum shall be deemed to include references to any hereafter-enacted provision of law that is the same or substantially the same as such provisions. You are authorized and directed to publish this memorandum in the Federal Register. œ–

THE WHITE HOUSE, Washington, February 29, 1996. [FR Doc. 96–5910 Filed 3–8–96; 8:45 am] Billing code 4710–10–M 9891 Presidential Documents

Presidential Determination No. 96–13 of March 1, 1996

Certification for Major Narcotics Producing and Transit Countries

Memorandum for the Secretary of State

By virtue of the authority vested in me by section 490(b)(1)(A) of the Foreign Assistance Act of 1961, as amended, (‘‘the Act’’), I hereby determine and certify that the following major drug producing and/or major drug transit countries/territories have cooperated fully with the United States, or taken adequate steps on their own, to achieve full compliance with the goals and objectives of the 1988 United Nations Convention Against Illicit Traffic in Narcotics Drugs and Psychotropic Substances: The Bahamas, Belize, Bolivia, Brazil, Cambodia, China, Dominican Republic, Ecuador, Guatemala, Haiti, Hong Kong, India, Jamaica, Laos, Malaysia, Mexico, Panama, Peru, Taiwan, Thailand, Venezuela, and Vietnam. By virtue of the authority vested in me by section 490(b)(1)(B) of the Act, I hereby determine that it is in the vital national interests of the United States to certify the following countries: Lebanon, Pakistan, and Paraguay. Information on these countries, as required under section 490(b)(3) of the Act, is attached. I have determined that the following major producing and/or major transit countries do not meet the standards set forth in section 490(b). Afghanistan, Burma, Colombia, Iran, Nigeria, and Syria. I have made there determinations, taking into account the factors set forth in section 490 of the Act and based on the information contained in the International Narcotics Control Strategy Report of 1996. Because the perform- ance of these countries varies, I have attached an explanatory statement in each case. You are hereby authorized and directed to report this determination to the Congress immediately and to publish it in the Federal Register. œ–

THE WHITE HOUSE, Washington, March 1, 1996. [FR Doc. 96–5911 Filed 3–8–96; 8:45 am] Billing code 4710–10–M 9893 Presidential Documents

Presidential Determination No. 96–14 of March 1, 1996

Assistance Program for the New Independent States of the Former Soviet Union

Memorandum for the Secretary of State

Pursuant to subsection (d) under the heading ‘‘Assistance for the New Inde- pendent States of the Former Soviet Union’’ in title II of the Foreign Oper- ations, Export Financing, and Related Programs Appropriations Act, 1996 (Public Law 104–107), I hereby determine that it is in the national security interest of the United States to make available funds appropriated under that heading without regard to the restriction in that subsection. You are authorized and directed to notify the Congress of this determination and to arrange for its publication in the Federal Register. œ–

THE WHITE HOUSE Washington, March 1, 1996. [FR Doc. 96–5912 Filed 3–8–96; 8:45 am] Billing Code 4710–10–M federal register March 11,1996 Monday Iran Emergency Notice ofMarch8,1996ÐContinuation The President Part VIII 9895

9897

Federal Register Presidential Documents Vol. 61, No. 48

Monday, March 11, 1996

Title 3— Notice of March 8, 1996

The President Continuation of Iran Emergency

On March 15, 1995, by Executive Order No. 12957, I declared a national emergency with respect to Iran pursuant to the International Emergency Economic Powers Act (50 U.S.C. 1701–1706), to deal with the threat to the national security, foreign policy, and economy of the United States constituted by the actions and policies of the Government of Iran, including its support for international terrorism, efforts to undermine the Middle East peace process, and acquisition of weapons of mass destruction and the means to deliver them. On May 6, 1995, I issued Executive Order No. 12959 imposing more comprehensive sanctions to further respond to this threat. Because the actions and policies of the Government of Iran continue to threaten the national security, foreign policy, and economy of the United States, the national emergency declared on March 15, 1995, must continue in effect beyond March 15, 1996. Therefore, in accordance with section 202(d) of the National Emergencies Act (50 U.S.C. 1622(d)), I am continuing the national emergency with respect to Iran. Because the emergency declared by Executive Order No. 12957 constitutes an emergency separate from that declared on November 14, 1979, by Executive Order No. 12170, this renewal is distinct from the emergency renewal of November 1995. This Notice shall be published in the Federal Register and transmitted to the Congress. œ–

THE WHITE HOUSE, March 8, 1996. [FR Doc. 96–5946 Filed 3–8–96;10:56 am] Billing code 3195–01–P i

Reader Aids Federal Register Vol. 61, No. 48 Monday, March 11, 1996

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING MARCH

Federal Register/Code of Federal Regulations At the end of each month, the Office of the Federal Register General Information, indexes and other finding 202±523±5227 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since Public inspection announcement line 523±5215 the revision date of each title. 8 CFR Laws 3 CFR 242...... 8858 Public Laws Update Services (numbers, dates, etc.) 523±6641 Proclamations: For additional information 523±5227 6867...... 8843 9 CFR 6868...... 8847 Presidential Documents 6869...... 8849 Proposed Rules: 523±5227 Executive orders and proclamations Executive Orders: 1...... 9371 The United States Government Manual 523±5227 12131 (Amended by 3...... 9371 Other Services EO 12991)...... 9587 301...... 9655 304...... 9655 Electronic and on-line services (voice) 523±4534 12957 (Continued by Notice of March 8, 305...... 9655 Privacy Act Compilation 523±3187 1996) ...... 9897 306...... 9655 523±5229 TDD for the hearing impaired 12959 (See Notice of 307...... 9655 March 8, 1996)...... 9897 310...... 8892 ELECTRONIC BULLETIN BOARD 12990...... 8467 318...... 8892, 9655 12991...... 9587 319...... 8892 Free Electronic Bulletin Board service for Public Law numbers, Administrative Orders: 325...... 9655 Federal Register finding aids, and list of documents on public 381...... 8892, 9655 inspection. 202±275±0920 Memorandums: February 29, 1996 ...... 9889 12 CFR FAX-ON-DEMAND Notices: 366...... 9590 You may access our Fax-On-Demand service. You only need a fax March 8, 1996 ...... 9897 machine and there is no charge for the service except for long Presidential Determinations: Proposed Rules: distance telephone charges the user may incur. The list of No. 96±10 of February 3...... 9114 documents on public inspection and the daily Federal Register’s 23, 1996 ...... 8463 208...... 9114 table of contents are available using this service. The document No. 96±11 of February 225...... 9114 numbers are 7050-Public Inspection list and 7051-Table of 23, 1996 ...... 8465 325...... 9114 Contents list. The public inspection list will be updated No. 96±12 of February 703...... 8499 immediately for documents filed on an emergency basis. 28, 1996 ...... 9887 No. 96±13 of March 1, 13 CFR NOTE: YOU WILL ONLY GET A LISTING OF DOCUMENTS ON 1996 ...... 9891 FILE AND NOT THE ACTUAL DOCUMENT. Documents on Ch. III ...... 7979 No. 96±14 of March 1, public inspection may be viewed and copied in our office located 107...... 7985 1996 ...... 9893 at 800 North Capitol Street, N.W., Suite 700. The Fax-On-Demand 115...... 7985 telephone number is: 301±713±6905 120...... 7985 4 CFR 121...... 7986 28...... 9089 125...... 7986 FEDERAL REGISTER PAGES AND DATES, MARCH 5 CFR 14 CFR 7979±8204...... 1 315...... 9321 8205±8466...... 4 25...... 9533 39 ...... 8209, 8211, 9090, 9092, 8467±8850...... 5 7 CFR 9097, 9098, 9371, 9599, 8851±9088...... 6 29...... 9589 9601, 9604, 9606, 9607 9089±9320...... 7 31...... 9589 71...... 8859, 9612 9321±9588...... 8 32...... 9589 121...... 9612 9589±9898...... 11 51...... 9589 Proposed Rules: 52...... 9589 39 ...... 8892, 8896, 8897, 9119 53...... 9589 71 ...... 8899, 9655, 9656, 9657, 54...... 9589 9658 56...... 9589 58...... 9589 15 CFR 70...... 9589 160...... 9589 785...... 8471 301...... 8205 Proposed Rules: 319...... 8205 923...... 9746 457...... 8851 926...... 9746 1487...... 8207 927...... 9746 1491...... 8207 928...... 9746 1492...... 8207 932...... 9746 1495...... 8207 933...... 9746 Proposed Rules: 52...... 9654 16 CFR 916...... 8225 Proposed Rules: 917...... 8225 405...... 8499 ii Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Reader Aids

17 CFR 1305...... 8503 1915...... 9381 Proposed Rules: 60±741...... 9532 Proposed Rules: 1306...... 8503 1926...... 9381 1307...... 8503 210...... 9848 30 CFR 42 CFR 228...... 9848 1308...... 8503 229...... 9848 1309...... 8503 75...... 9764 57...... 9532 230...... 9848 1310...... 8503 Proposed Rules: 58...... 9532 232...... 9848 1311...... 8503 250...... 8534, 8901 Proposed Rules: 239...... 9848 1312...... 8503 251...... 8901 440...... 9405 240...... 9848 1313...... 8503 256...... 8901 906...... 8534 43 CFR 249...... 9848 1316...... 8503 936...... 8536 22 CFR Proposed Rules: 18 CFR 31 CFR Ch. II ...... 8537 40...... 9325 14...... 8538 154...... 9613 514...... 8215 500...... 9343 157...... 8213 535...... 8216 44 CFR 201...... 8860 23 CFR Proposed Rules: 61...... 8222 284...... 8860, 8870 1313...... 9101 357...... 8420 64...... 7997, 8474 Proposed Rules: 19 CFR 32 CFR 1210...... 9120 46 CFR 10...... 7987 23...... 9344 113...... 7987 24 CFR 216...... 0346 Proposed Rules: 148...... 9638 5...... 9040, 9536 706 ...... 9104, 9105, 9107 108...... 8539 Proposed Rules: 35...... 9064 Proposed Rules: 110...... 8539 101...... 8001 92...... 9036 324...... 8003 111...... 8539 202...... 8458 112...... 8539 20 CFR 243...... 9536 33 CFR 113...... 8539 368...... 8213 842...... 9536 4...... 9264 161...... 8539 880...... 9040 100 ...... 8216, 8217, 8218 381...... 9670 21 CFR 130...... 9264 881...... 9040 47 CFR 5 ...... 8214, 8472, 9639 882...... 9040 131...... 9264 73...... 7990 883...... 9040 132...... 9264 0...... 8475 101...... 8752 884...... 9040 137...... 9264 2...... 8475 123...... 9100 885...... 9040 138...... 9264 5...... 8475 136...... 8781 886...... 9040 165 ...... 8219, 8220, 9348 21...... 8475 137...... 8781 889...... 9040 Proposed Rules: 22...... 8475 139...... 8781 904...... 9040 100...... 8227, 8229 23...... 8475 25...... 8475 164...... 9323 941...... 8712 34 CFR 172...... 8797 942...... 9536 61...... 8879 180...... 7990 950...... 8712 75...... 8454 64...... 8879 310...... 9570 955...... 9052 345...... 8158 73 ...... 7999, 8000, 8475, 8880, 8881, 9359, 9360, 9648 332...... 8836 960...... 9040 40 CFR 510...... 8872 962...... 8814 76...... 9361, 9648 520...... 8872 965...... 8712 52 ...... 7992, 7995, 8873, 9350, 78...... 8475 522...... 8872 968...... 8712 9639, 9642, 9644 80...... 8475 524...... 8872 982...... 9040 70...... 8875 90...... 8475, 8478 80...... 8221 880...... 8432 983...... 9040 94...... 8475 112...... 9646 890...... 8432 984...... 8814 95...... 8475 114...... 9646 1240...... 9100 Proposed Rules: Proposed Rules: 117...... 9646 2...... 8905 Proposed Rules: 250...... 8901 152...... 8876 2...... 8002 251...... 8901 25...... 8905 167...... 8221 73 ...... 8014, 8230, 9410, 9411 54...... 8502 256...... 8901 180...... 9355 70...... 8372 76...... 9411, 9671 26 CFR 185...... 9357 87...... 8905 73...... 8372 271...... 9108 74...... 8372 1...... 7991, 9326 300...... 7996 48 CFR 80...... 8372 20...... 7991 Proposed Rules: 213...... 9532 81...... 8372 25...... 7991 52 ...... 8008, 8009, 8901, 9125, 82...... 8372 31...... 9639 9639, 9642, 9644 49 CFR 101 ...... 8372, 8750, 8900 602...... 9336 63...... 9383, 9532 178...... 8372 Proposed Rules: 70...... 9125, 9661 382...... 9546 201...... 8372 1 ...... 9377, 9659, 9660 82...... 9014 383...... 9546 312...... 8502 301...... 9660 89...... 9131 390...... 9546 314...... 8502 391...... 9546 28 CFR 90...... 9131 320...... 8502 91...... 9131 392...... 9546 330...... 8450, 8502 52...... 8472 122...... 8229 671...... 9650 601...... 8502 1201...... 9112 29 CFR 123...... 8229 701...... 8372 180 ...... 8174, 8901, 8903, 9399 1262...... 9112 807...... 8502 1901...... 9228 264...... 9532 Proposed Rules: 812...... 8502 1902...... 9228 265...... 9532 171...... 8328 814...... 8502 1910...... 9228 266...... 9532 173...... 8328 860...... 8502 1915...... 9228 300...... 8012, 9403 178...... 8328 886...... 9373 1926...... 9228 403...... 8229 191...... 9132 1300...... 8503 1928...... 9228 501...... 8229 192...... 8231, 9132 1301...... 8503 1950...... 9228 745...... 9064 193...... 8231 1302...... 8503 1951...... 9228 195...... 8231, 9415 1303...... 8503 Proposed Rules: 41 CFR 229...... 8881 1304...... 8503 1910...... 9381 101±71...... 9110 571...... 9135 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Reader Aids iii

572...... 9135 Ch. X...... 9413 1201...... 9138 1262...... 9138 1312...... 9419 50 CFR 17...... 9651 260...... 9368 261...... 9368 262...... 9368 263...... 9368 264...... 9368 265...... 9368 266...... 9368 267...... 9368 285...... 8223 290...... 8224 351...... 9369 380...... 8483 650...... 8490 651...... 8492 655...... 8496 661...... 8497 672...... 8888 675 .....8497, 9498, 8888, 8889, 9113, 9370 683...... 8890 Proposed Rules: 17 ...... 8014, 8016, 8018 23...... 8019 260...... 9420 651...... 8540 663...... 8021 675...... 8023 686...... 8564 iv Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Reader Aids

REMINDERS Louisiana; published 2-9-96 part removed; published 3- Housing-- The rules and proposed rules Vessels; small passenger 11-96 Section 515 rural rental in this list were editorially inspection and certification; TREASURY DEPARTMENT housing loans; compiled as an aid to Federal published 1-10-96 Customs Service comments due by 3-18- Register users. Inclusion or TRANSPORTATION Organizations and functions; 96; published 1-17-96 exclusion from this list has no DEPARTMENT field organization, ports of AGRICULTURE legal significance. Federal Aviation entry, etc.: DEPARTMENT Administration International Criminal Police Import quotas and fees: RULES GOING INTO Air carrier certification and Organization; port of entry Dairy products; comments EFFECT TODAY operations: designation; published 3- due by 3-18-96; published Domestic, flag, 11-96 1-18-96 supplemental, commuter, COMMERCE DEPARTMENT and on-demand COMMERCE DEPARTMENT National Oceanic and operations; operating COMMENTS DUE NEXT Freedom of Information and Atmospheric Administration requirements; editorial and WEEK Privacy Acts; Tuna, Atlantic bluefin fisheries; terminology changes implementation; comments published 3-4-96 Correction; published 3- AGRICULTURE due by 3-22-96; published ENVIRONMENTAL 11-96 DEPARTMENT 2-21-96 PROTECTION AGENCY Airworthiness directives: Agricultural Marketing COMMERCE DEPARTMENT Water programs: Airbus; published 2-23-96 Service National Oceanic and Oil discharge program; Boeing; published 2-23-96 Olives grown in California; Atmospheric Administration Federal regulatory review; European Joint Aviation comments due by 3-21-96; Fishery conservation and published 3-11-96 Requirements; normal, published 2-20-96 management: FEDERAL utility, acrobatic, and Onions grown in-- Gulf of Alaska and Bering COMMUNICATIONS commuter category Texas; comments due by 3- Sea and Aleutian Islands COMMISSION airplanes-- 21-96; published 2-20-96 groundfish; comments due Practice and procedure: Systems and equipment AGRICULTURE by 3-21-96; published 2- Pioneer's preference rules; standards; correction; DEPARTMENT 20-96 regulatory review; published 2-28-96 published 2-9-96 Animal and Plant Health DEFENSE DEPARTMENT Jetstream; published 2-12- Inspection Service Federal Acquisition Regulation Radio stations; table of 96 Plant-related quarantine, (FAR): assignments: McDonnell Douglas; domestic: Defense Authorization Act; Texas; published 2-5-96 published 2-12-96 Citrus canker; comments implementation; comments Wyoming; published 2-5-96 SAAB; published 2-12-96 Television broadcasting: due by 3-22-96; published due by 3-22-96; published Airworthiness standards: 1-22-96 2-21-96 Telecommunications Act of European Joint Aviation AGRICULTURE EDUCATION DEPARTMENT 1996-- Requirements; normal, DEPARTMENT Sexually explicit adult utility, acrobatic, and Special education and programming; commuter category Farm Service Agency rehabilitative services: scrambling or blocking; airplanes-- Program regulations: Projects with industry published 3-11-96 Airframe standards; Housing-- program; comments due Television stations; table of published 2-9-96 Section 515 rural rental by 3-22-96; published 1- assignments: Flight standards; housing loans; 22-96 South Dakota; published 2- published 2-9-96 comments due by 3-18- ENVIRONMENTAL 5-96 Powerplant standards; 96; published 1-17-96 PROTECTION AGENCY HOUSING AND URBAN published 2-9-96 AGRICULTURE Air programs; State authority DEVELOPMENT Systems and equipment DEPARTMENT delegations: DEPARTMENT standards; published 2- Rural Business and Washington; comments due Federal regulatory review; 9-96 Cooperative Development by 3-18-96; published 2- published 2-9-96 Transport category Service 16-96 Lobbying of personnel; airplanes-- Program regulations: Air quality implementation requirements; CFR part Discrete gust load design plans; approval and removed; published 2-9-96 Housing-- requirements; published Section 515 rural rental promulgation; various INTERIOR DEPARTMENT 2-9-96 States: Land Management Bureau housing loans; TRANSPORTATION comments due by 3-18- Florida; comments due by Minerals management: DEPARTMENT 96; published 1-17-96 3-22-96; published 2-21- Oil and gas leasing-- Federal Railroad 96 Heavy oil; development AGRICULTURE Administration DEPARTMENT Michigan; comments due by promotion and royalty Federal regulatory review: 3-22-96; published 2-21- reduction; published 2- Rural Housing and Loans under Rail Passenger 96 8-96 Community Development Service Act of 1970 and Service South Carolina; comments INTERIOR DEPARTMENT regulations under Railroad Program regulations: due by 3-18-96; published Fish and Wildlife Service Revitalization and 2-16-96 Housing-- Endangered and threatened Regulatory Reform Act of Air quality implementation species: 1976; CFR parts Section 515 rural rental plans; √A√approval and Interim listing priority removed; published 2-9-96 housing loans; promulgation; various guidance; published 3-11- TRANSPORTATION comments due by 3-18- States; air quality planning 96 DEPARTMENT 96; published 1-17-96 purposes; designation of TRANSPORTATION Federal Transit AGRICULTURE areas: DEPARTMENT Administration DEPARTMENT New Mexico; comments due Coast Guard Temporary local match waiver Rural Utilities Service by 3-18-96; published 2- Drawbridge operations: for Sections 9 and 18; CFR Program regulations: 16-96 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Reader Aids v

Clean Air Act: Audit program revision; Defense Authorization Act; TRANSPORTATION Acid rain program-- comments due by 3-18- implementation; comments DEPARTMENT Nitrogen oxides emissions 96; published 2-1-96 due by 3-22-96; published National Highway Traffic reduction program; GENERAL ACCOUNTING 2-21-96 Safety Administration comments due by 3-19- OFFICE PERSONNEL MANAGEMENT Meetings: 96; published 2-2-96 Bid protest process; comments OFFICE Mirror systems safety; due by 3-22-96; published Prevailing rate systems; Hazardous waste: comments due by 3-22- 2-21-96 comments due by 3-18-96; Identification and listing-- 96; published 2-7-96 GENERAL SERVICES published 2-15-96 Petroleum refining process TREASURY DEPARTMENT wastes; land disposal ADMINISTRATION RAILROAD RETIREMENT restrictions; comments Federal Acquisition Regulation BOARD Internal Revenue Service due by 3-21-96; (FAR): Public information availability; Employment taxes and published 2-13-96 Defense Authorization Act; fee schedule; comments collection of income taxes at State underground storage implementation; comments due by 3-18-96; published source: tank program approvals-- due by 3-22-96; published 1-18-96 Backup witholding, Maine; comments due by 2-21-96 STATE DEPARTMENT statement mailing 3-22-96; published 2-21- HEALTH AND HUMAN Removal of alien enemies requirements, and due 96 SERVICES DEPARTMENT brought to U.S.; World War diligence; comments due Rhode Island; comments Food and Drug II reparations; and disposal by 3-20-96; published 12- due by 3-21-96; Administration of surplus property in 21-95 published 2-20-96 Food for human consumption: foreign areas; CFR parts Income taxes: removed; comments due by Water pollution control: Food labeling-- Family and Medical Leave 3-22-96; published 2-21-96 Water quality standards-- Nutrient content claims; Act; cafeteria plans Sacramento River, San general principles; TRANSPORTATION operation; comments due Joaquin River, and San comments due by 3-20- DEPARTMENT by 3-20-96; published 12- Francisco Bay and 96; published 12-21-95 Coast Guard 21-95 Delta, CA; surface Nutrient content claims; Federal regulatory review: Loans to plan participants; waters; protection general principles; Electrical engineering comments due by 3-20- criteria; comments due correction; comments requirements for merchant 96; published 12-21-95 by 3-19-96; published due by 3-20-96; vessels; comments due Tax exempt section 12-20-95 published 3-6-96 by 3-18-96; published 2-2- 501(c)(5) organizations; FEDERAL Human subjects, protection; 96 requirements; comments COMMUNICATIONS informed consent; comments Regattas and marine parades: due by 3-20-96; published COMMISSION due by 3-21-96; published Annual National Maritime 12-21-95 12-22-95 Common carrier services Week Tugboat Races; TREASURY DEPARTMENT HEALTH AND HUMAN comments due by 3-18- Common and private carrier Government Securities Act of SERVICES DEPARTMENT 96; published 1-17-96 paging, licensing 1986; large position rules procedures; competitive Public Health Service TRANSPORTATION financial responsibility and bidding; comments due by Organization, functions, and DEPARTMENT reporting and recordkeeping 3-18-96; published 2-16- authority delegations: Ticketless travel; passenger requirements amendments; 96 Senior Biomedical Research notices; comments due by comments due by 3-18-96; Radio stations; table of Service; comments due 3-19-96; published 1-19-96 published 12-18-95 assignments: by 3-22-96; published 2- TRANSPORTATION Arkansas; comments due by 21-96 DEPARTMENT 3-21-96; published 2-6-96 LIST OF PUBLIC LAWS INTERIOR DEPARTMENT Federal Aviation Television broadcasting: Minerals Management Administration Cable television systems-- Service This is a list of public bills Airworthiness directives: from the 104th Congress Cable home wiring; Royalty management: Airbus; comments due by 3- which have become Federal comments due by 3-18- Federal and Indian leases; 19-96; published 1-19-96 laws. It may be used in 96; published 2-16-96 oil valuation; comments Beech; comments due by 3- conjunction with ``P L U S'' Telephone and cable due by 3-19-96; published 22-96; published 2-9-96 (Public Laws Update Service) telecommunications inside 12-20-95 Bellanca, Inc.; comments on 202±523±6641. The text of wiring, customer premises INTERIOR DEPARTMENT due by 3-20-96; published laws is not published in the equipment; harmonization; Surface Mining Reclamation 1-22-96 Federal Register but may be comments due by 3-18- and Enforcement Office ordered in individual pamphlet 96; published 2-1-96 Cessna; comments due by Permanent program and 3-21-96; published 1-22- form (referred to as ``slip FEDERAL DEPOSIT abandoned mine land 96 laws'') from the INSURANCE CORPORATION Superintendent of Documents, reclamation plan Jetstream; comments due General policy: submissions: U.S. Government Printing by 3-22-96; published 1- Office, Washington, DC 20402 Fitness for employment; Colorado; comments due by 19-96 (phone, 202±512±2470). minimum standards; 3-20-96; published 3-5-96 Class E airspace; comments comments due by 3-18- NATIONAL AERONAUTICS due by 3-18-96; published H.R. 2196/P.L. 104±113 96; published 2-15-96 AND SPACE 1-31-96 National Technology Transfer FEDERAL EMERGENCY ADMINISTRATION Colored Federal Airways; and Advancement Act of 1995 MANAGEMENT AGENCY Federal Acquisition Regulation comments due by 3-21-96; (Mar. 7, 1996; 110 Stat. 775) Flood insurance program: (FAR): published 2-6-96 Last List March 7, 1996 vi Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Reader Aids

CFR CHECKLIST Title Stock Number Price Revision Date 14 Parts: 1–59 ...... (869–026–00042–5) ...... 33.00 Jan. 1, 1995 This checklist, prepared by the Office of the Federal Register, is 60–139 ...... (869–026–00043–3) ...... 27.00 Jan. 1, 1995 published weekly. It is arranged in the order of CFR titles, stock 140–199 ...... (869–026–00044–1) ...... 13.00 Jan. 1, 1995 numbers, prices, and revision dates. 200–1199 ...... (869–026–00045–0) ...... 23.00 Jan. 1, 1995 An asterisk (*) precedes each entry that has been issued since last 1200–End ...... (869–026–00046–8) ...... 16.00 Jan. 1, 1995 week and which is now available for sale at the Government Printing 15 Parts: Office. 0–299 ...... (869–026–00047–6) ...... 15.00 Jan. 1, 1995 A checklist of current CFR volumes comprising a complete CFR set, 300–799 ...... (869–026–00048–4) ...... 26.00 Jan. 1, 1995 also appears in the latest issue of the LSA (List of CFR Sections 800–End ...... (869–026–00049–2) ...... 21.00 Jan. 1, 1995 Affected), which is revised monthly. 16 Parts: The annual rate for subscription to all revised volumes is $883.00 0–149 ...... (869–026–00050–6) ...... 7.00 Jan. 1, 1995 domestic, $220.75 additional for foreign mailing. 150–999 ...... (869–026–00051–4) ...... 19.00 Jan. 1, 1995 Mail orders to the Superintendent of Documents, Attn: New Orders, 1000–End ...... (869–026–00052–2) ...... 25.00 Jan. 1, 1995 P.O. Box 371954, Pittsburgh, PA 15250±7954. All orders must be accompanied by remittance (check, money order, GPO Deposit 17 Parts: Account, VISA, or Master Card). Charge orders may be telephoned 1–199 ...... (869–026–00054–9) ...... 20.00 Apr. 1, 1995 ...... to the GPO Order Desk, Monday through Friday, at (202) 512±1800 200–239 (869–026–00055–7) 24.00 Apr. 1, 1995 ...... from 8:00 a.m. to 4:00 p.m. eastern time, or FAX your charge orders 240–End (869–026–00056–5) 30.00 Apr. 1, 1995 to (202) 512-2233. 18 Parts: Title Stock Number Price Revision Date 1–149 ...... (869–026–00057–3) ...... 16.00 Apr. 1, 1995 150–279 ...... (869–026–00058–1) ...... 13.00 Apr. 1, 1995 1, 2 (2 Reserved) ...... (869–026–00001–8) ...... $5.00 Jan. 1, 1995 280–399 ...... (869–026–00059–0) ...... 13.00 Apr. 1, 1995 3 (1994 Compilation 400–End ...... (869–026–00060–3) ...... 11.00 Apr. 1, 1995 and Parts 100 and 19 Parts: 1 101) ...... (869–026–00002–6) ...... 40.00 Jan. 1, 1995 1–140 ...... (869–026–00061–1) ...... 25.00 Apr. 1, 1995 4 ...... (869–026–00003–4) ...... 5.50 Jan. 1, 1995 141–199 ...... (869–026–00062–0) ...... 21.00 Apr. 1, 1995 200–End ...... (869–026–00063–8) ...... 12.00 Apr. 1, 1995 5 Parts: 1–699 ...... (869–026–00004–2) ...... 23.00 Jan. 1, 1995 20 Parts: 700–1199 ...... (869–026–00005–1) ...... 20.00 Jan. 1, 1995 1–399 ...... (869–026–00064–6) ...... 20.00 Apr. 1, 1995 1200–End, 6 (6 400–499 ...... (869–026–00065–4) ...... 34.00 Apr. 1, 1995 Reserved) ...... (869–026–00006–9) ...... 23.00 Jan. 1, 1995 500–End ...... (869–026–00066–2) ...... 34.00 Apr. 1, 1995 7 Parts: 21 Parts: 0–26 ...... (869–026–00007–7) ...... 21.00 Jan. 1, 1995 1–99 ...... (869–026–00067–1) ...... 16.00 Apr. 1, 1995 27–45 ...... (869–026–00008–5) ...... 14.00 Jan. 1, 1995 100–169 ...... (869–026–00068–9) ...... 21.00 Apr. 1, 1995 46–51 ...... (869–026–00009–3) ...... 21.00 Jan. 1, 1995 170–199 ...... (869–026–00069–7) ...... 22.00 Apr. 1, 1995 52 ...... (869–026–00010–7) ...... 30.00 Jan. 1, 1995 200–299 ...... (869–026–00070–1) ...... 7.00 Apr. 1, 1995 53–209 ...... (869–026–00011–5) ...... 25.00 Jan. 1, 1995 300–499 ...... (869–026–00071–9) ...... 39.00 Apr. 1, 1995 210–299 ...... (869–026–00012–3) ...... 34.00 Jan. 1, 1995 500–599 ...... (869–026–00072–7) ...... 22.00 Apr. 1, 1995 300–399 ...... (869–026–00013–1) ...... 16.00 Jan. 1, 1995 600–799 ...... (869–026–00073–5) ...... 9.50 Apr. 1, 1995 400–699 ...... (869–026–00014–0) ...... 21.00 Jan. 1, 1995 800–1299 ...... (869–026–00074–3) ...... 23.00 Apr. 1, 1995 700–899 ...... (869–026–00015–8) ...... 23.00 Jan. 1, 1995 1300–End ...... (869–026–00075–1) ...... 13.00 Apr. 1, 1995 900–999 ...... (869–026–00016–6) ...... 32.00 Jan. 1, 1995 1000–1059 ...... (869–026–00017–4) ...... 23.00 Jan. 1, 1995 22 Parts: 1060–1119 ...... (869–026–00018–2) ...... 15.00 Jan. 1, 1995 1–299 ...... (869–026–00076–0) ...... 33.00 Apr. 1, 1995 1120–1199 ...... (869–026–00019–1) ...... 12.00 Jan. 1, 1995 300–End ...... (869–026–00077–8) ...... 24.00 Apr. 1, 1995 1200–1499 ...... (869–026–00020–4) ...... 32.00 Jan. 1, 1995 23 ...... (869–026–00078–6) ...... 22.00 Apr. 1, 1995 1500–1899 ...... (869–026–00021–2) ...... 35.00 Jan. 1, 1995 24 Parts: 1900–1939 ...... (869–026–00022–1) ...... 16.00 Jan. 1, 1995 ...... 1940–1949 ...... (869–026–00023–9) ...... 30.00 Jan. 1, 1995 0–199 (869–026–00079–4) 40.00 Apr. 1, 1995 1950–1999 ...... (869–026–00024–7) ...... 40.00 Jan. 1, 1995 200–219 ...... (869–026–00080–8) ...... 19.00 Apr. 1, 1995 2000–End ...... (869–026–00025–5) ...... 14.00 Jan. 1, 1995 220–499 ...... (869–026–00081–6) ...... 23.00 Apr. 1, 1995 500–699 ...... (869–026–00082–4) ...... 20.00 Apr. 1, 1995 8 ...... (869–026–00026–3) ...... 23.00 Jan. 1, 1995 700–899 ...... (869–026–00083–2) ...... 24.00 Apr. 1, 1995 9 Parts: 900–1699 ...... (869–026–00084–1) ...... 24.00 Apr. 1, 1995 1–199 ...... (869–026–00027–1) ...... 30.00 Jan. 1, 1995 1700–End ...... (869–026–00085–9) ...... 17.00 Apr. 1, 1995 200–End ...... (869–026–00028–0) ...... 23.00 Jan. 1, 1995 25 ...... (869–026–00086–7) ...... 32.00 Apr. 1, 1995 10 Parts: 26 Parts: 0–50 ...... (869–026–00029–8) ...... 30.00 Jan. 1, 1995 §§ 1.0-1–1.60 ...... (869–026–00087–5) ...... 21.00 Apr. 1, 1995 51–199 ...... (869–026–00030–1) ...... 23.00 Jan. 1, 1995 §§ 1.61–1.169 ...... (869–026–00088–3) ...... 34.00 Apr. 1, 1995 200–399 ...... (869–026–00031–0) ...... 15.00 6Jan. 1, 1993 §§ 1.170–1.300 ...... (869–026–00089–1) ...... 24.00 Apr. 1, 1995 400–499 ...... (869–026–00032–8) ...... 21.00 Jan. 1, 1995 §§ 1.301–1.400 ...... (869–026–00090–5) ...... 17.00 Apr. 1, 1995 500–End ...... (869–026–00033–6) ...... 39.00 Jan. 1, 1995 §§ 1.401–1.440 ...... (869–026–00091–3) ...... 30.00 Apr. 1, 1995 11 ...... (869–026–00034–4) ...... 14.00 Jan. 1, 1995 §§ 1.441-1.500 ...... (869-026-00092-1) ...... 22.00 Apr. 1, 1995 §§ 1.501–1.640 ...... (869–026–00093–0) ...... 21.00 Apr. 1, 1995 12 Parts: §§ 1.641–1.850 ...... (869–026–00094–8) ...... 25.00 Apr. 1, 1995 1–199 ...... (869–026–00035–2) ...... 12.00 Jan. 1, 1995 §§ 1.851–1.907 ...... (869–026–00095–6) ...... 26.00 Apr. 1, 1995 200–219 ...... (869–026–00036–1) ...... 16.00 Jan. 1, 1995 §§ 1.908–1.1000 ...... (869–026–00096–4) ...... 27.00 Apr. 1, 1995 220–299 ...... (869–026–00037–9) ...... 28.00 Jan. 1, 1995 §§ 1.1001–1.1400 ...... (869–026–00097–2) ...... 25.00 Apr. 1, 1995 300–499 ...... (869–026–00038–7) ...... 23.00 Jan. 1, 1995 §§ 1.1401–End ...... (869–026–00098–1) ...... 33.00 Apr. 1, 1995 500–599 ...... (869–026–00039–5) ...... 19.00 Jan. 1, 1995 2–29 ...... (869–026–00099–9) ...... 25.00 Apr. 1, 1995 ...... 600–End (869–026–00040–9) 35.00 Jan. 1, 1995 30–39 ...... (869–026–00100–6) ...... 18.00 Apr. 1, 1995 13 ...... (869–026–00041–7) ...... 32.00 Jan. 1, 1995 40–49 ...... (869–026–00101–4) ...... 14.00 Apr. 1, 1995 Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Reader Aids vii

Title Stock Number Price Revision Date Title Stock Number Price Revision Date 50–299 ...... (869–026–00102–2) ...... 14.00 Apr. 1, 1995 400–424 ...... (869–026–00155–3) ...... 26.00 July 1, 1995 300–499 ...... (869–026–00103–1) ...... 24.00 Apr. 1, 1995 425–699 ...... (869–026–00156–1) ...... 30.00 July 1, 1995 500–599 ...... (869–026–00104–9) ...... 6.00 4 Apr. 1, 1990 700–789 ...... (869–026–00157–0) ...... 25.00 July 1, 1995 600–End ...... (869–026–00105–7) ...... 8.00 Apr. 1, 1995 790–End ...... (869–026–00158–8) ...... 15.00 July 1, 1995 27 Parts: 41 Chapters: 1–199 ...... (869–026–00106–5) ...... 37.00 Apr. 1, 1995 1, 1–1 to 1–10 ...... 13.00 3 July 1, 1984 200–End ...... (869–026–00107–3) ...... 13.00 7Apr. 1, 1994 1, 1–11 to Appendix, 2 (2 Reserved) ...... 13.00 3 July 1, 1984 3–6 ...... 14.00 3 July 1, 1984 28 Parts: ...... 7 ...... 6.00 3 July 1, 1984 1-42 ...... (869–026–00108–1) ...... 27.00 July 1, 1995 8 ...... 4.50 3 July 1, 1984 43-end ...... (869-026-00109-0) ...... 22.00 July 1, 1995 9 ...... 13.00 3 July 1, 1984 29 Parts: 10–17 ...... 9.50 3 July 1, 1984 0–99 ...... (869–026–00110–3) ...... 21.00 July 1, 1995 18, Vol. I, Parts 1–5 ...... 13.00 3 July 1, 1984 100–499 ...... (869–026–00111–1) ...... 9.50 July 1, 1995 18, Vol. II, Parts 6–19 ...... 13.00 3 July 1, 1984 500–899 ...... (869–026–00112–0) ...... 36.00 July 1, 1995 18, Vol. III, Parts 20–52 ...... 13.00 3 July 1, 1984 900–1899 ...... (869–026–00113–8) ...... 17.00 July 1, 1995 19–100 ...... 13.00 3 July 1, 1984 1900–1910 (§§ 1901.1 to 1–100 ...... (869–026–00159–6) ...... 9.50 July 1, 1995 1910.999) ...... (869–026–00114–6) ...... 33.00 July 1, 1995 101 ...... (869–026–00160–0) ...... 29.00 July 1, 1995 1910 (§§ 1910.1000 to 102–200 ...... (869–026–00161–8) ...... 15.00 July 1, 1995 end) ...... (869–026–00115–4) ...... 22.00 July 1, 1995 201–End ...... (869–026–00162–6) ...... 13.00 July 1, 1995 1911–1925 ...... (869–026–00116–2) ...... 27.00 July 1, 1995 42 Parts: 1926 ...... (869–026–00117–1) ...... 35.00 July 1, 1995 1–399 ...... (869–026–00163–4) ...... 26.00 Oct. 1, 1995 1927–End ...... (869–026–00118–9) ...... 36.00 July 1, 1995 400–429 ...... (869–026–00164–2) ...... 26.00 Oct. 1, 1995 30 Parts: 430–End ...... (869–026–00165–1) ...... 39.00 Oct. 1, 1995 1–199 ...... (869–026–00119–7) ...... 25.00 July 1, 1995 43 Parts: 200–699 ...... (869–026–00120–1) ...... 20.00 July 1, 1995 1–999 ...... (869–026–00166–9) ...... 23.00 Oct. 1, 1995 700–End ...... (869–026–00121–9) ...... 30.00 July 1, 1995 1000–3999 ...... (869–026–00167–7) ...... 31.00 Oct. 1, 1995 31 Parts: 4000–End ...... (869–026–00168–5) ...... 15.00 Oct. 1, 1995 0–199 ...... (869–026–00122–7) ...... 15.00 July 1, 1995 44 ...... (869–026–00169–3) ...... 24.00 Oct. 1, 1995 200–End ...... (869–026–00123–5) ...... 25.00 July 1, 1995 45 Parts: 32 Parts: 2 1–199 ...... (869–022–00170–7) ...... 22.00 Oct. 1, 1995 1–39, Vol. I ...... 15.00 July 1, 1984 200–499 ...... (869–026–00171–5) ...... 14.00 Oct. 1, 1995 1–39, Vol. II ...... 19.00 2 July 1, 1984 2 500–1199 ...... (869–026–00172–3) ...... 23.00 Oct. 1, 1995 1–39, Vol. III ...... 18.00 July 1, 1984 1200–End ...... (869–026–00173–1) ...... 26.00 Oct. 1, 1995 1–190 ...... (869–026–00124–3) ...... 32.00 July 1, 1995 191–399 ...... (869–026–00125–1) ...... 38.00 July 1, 1995 46 Parts: 400–629 ...... (869–026–00126–0) ...... 26.00 July 1, 1995 *1–40 ...... (869–026–00174–0) ...... 21.00 Oct. 1, 1995 630–699 ...... (869–026–00127–8) ...... 14.00 5 July 1, 1991 41–69 ...... (869–026–00175–8) ...... 17.00 Oct. 1, 1995 700–799 ...... (869–026–00128–6) ...... 21.00 July 1, 1995 70–89 ...... (869–026–00176–6) ...... 8.50 Oct. 1, 1995 800–End ...... (869–026–00129–4) ...... 22.00 July 1, 1995 90–139 ...... (869–026–00177–4) ...... 15.00 Oct. 1, 1995 140–155 ...... (869–026–00178–2) ...... 12.00 Oct. 1, 1995 33 Parts: 156–165 ...... (869–026–00179–1) ...... 17.00 Oct. 1, 1995 1–124 ...... (869–026–00130–8) ...... 20.00 July 1, 1995 166–199 ...... (869–026–00180–4) ...... 17.00 Oct. 1, 1995 125–199 ...... (869–026–00131–6) ...... 27.00 July 1, 1995 200–499 ...... (869–026–00181–2) ...... 19.00 Oct. 1, 1995 200–End ...... (869–026–00132–4) ...... 24.00 July 1, 1995 500–End ...... (869–026–00182–1) ...... 13.00 Oct. 1, 1995 34 Parts: 47 Parts: 1–299 ...... (869–026–00133–2) ...... 25.00 July 1, 1995 0–19 ...... (869–026–00183–9) ...... 25.00 Oct. 1, 1995 300–399 ...... (869–026–00134–1) ...... 21.00 July 1, 1995 20–39 ...... (869–026–00184–7) ...... 21.00 Oct. 1, 1995 400–End ...... (869–026–00135–9) ...... 37.00 July 5, 1995 40–69 ...... (869–026–00185–5) ...... 14.00 Oct. 1, 1995 35 ...... (869–026–00136–7) ...... 12.00 July 1, 1995 70–79 ...... (869–026–00186–3) ...... 24.00 Oct. 1, 1995 80–End ...... (869–026–00187–1) ...... 30.00 Oct. 1, 1995 36 Parts 1–199 ...... (869–026–00137–5) ...... 15.00 July 1, 1995 48 Chapters: 200–End ...... (869–026–00138–3) ...... 37.00 July 1, 1995 1 (Parts 1–51) ...... (869–022–00185–0) ...... 36.00 Oct. 1, 1994 1 (Parts 52–99) ...... (869–022–00186–8) ...... 23.00 Oct. 1, 1994 37 ...... (869–026–00139–1) ...... 20.00 July 1, 1995 2 (Parts 201–251) ...... (869–026–00190–1) ...... 17.00 Oct. 1, 1995 38 Parts: 2 (Parts 252–299) ...... (869–026–00191–0) ...... 13.00 Oct. 1, 1995 0–17 ...... (869–026–00140–5) ...... 30.00 July 1, 1995 3–6 ...... (869–022–00189–2) ...... 23.00 Oct. 1, 1994 18–End ...... (869–026–00141–3) ...... 30.00 July 1, 1995 7–14 ...... (869–026–00193–6) ...... 28.00 Oct. 1, 1995 39 ...... (869–026–00142–1) ...... 17.00 July 1, 1995 15–28 ...... (869–026–00194–4) ...... 31.00 Oct. 1, 1995 29–End ...... (869–026–00195–2) ...... 19.00 Oct. 1, 1995 40 Parts: 1–51 ...... (869–026–00143–0) ...... 40.00 July 1, 1995 49 Parts: 52 ...... (869–026–00144–8) ...... 39.00 July 1, 1995 1–99 ...... (869–026–00196–1) ...... 25.00 Oct. 1, 1995 53–59 ...... (869–026–00145–6) ...... 11.00 July 1, 1995 100–177 ...... (869–022–00194–9) ...... 30.00 Oct. 1, 1994 60 ...... (869-026-00146-4) ...... 36.00 July 1, 1995 *178–199 ...... (869–026–00198–7) ...... 22.00 Oct. 1, 1995 61–71 ...... (869–026–00147–2) ...... 36.00 July 1, 1995 200–399 ...... (869–026–00199–5) ...... 30.00 Oct. 1, 1995 72–85 ...... (869–026–00148–1) ...... 41.00 July 1, 1995 400–999 ...... (869–022–00197–3) ...... 35.00 Oct. 1, 1994 86 ...... (869–026–00149–9) ...... 40.00 July 1, 1995 1000–1199 ...... (869–026–00201–1) ...... 18.00 Oct. 1, 1995 87–149 ...... (869–026–00150–2) ...... 41.00 July 1, 1995 1200–End ...... (869–026–00202–9) ...... 15.00 Oct. 1, 1995 150–189 ...... (869–026–00151–1) ...... 25.00 July 1, 1995 50 Parts: 190–259 ...... (869–026–00152–9) ...... 17.00 July 1, 1995 *1–199 ...... (869–026–00203–7) ...... 26.00 Oct. 1, 1995 260–299 ...... (869–026–00153–7) ...... 40.00 July 1, 1995 200–599 ...... (869–026–00204–5) ...... 22.00 Oct. 1, 1995 300–399 ...... (869–026–00154–5) ...... 21.00 July 1, 1995 600–End ...... (869–026–00205–3) ...... 27.00 Oct. 1, 1995 viii Federal Register / Vol. 61, No. 48 / Monday, March 11, 1996 / Reader Aids

Title Stock Number Price Revision Date CFR Index and Findings Aids ...... (869–026–00053–1) ...... 36.00 Jan. 1, 1995 Complete 1996 CFR set ...... 883.00 1996 Microfiche CFR Edition: Subscription (mailed as issued) ...... 264.00 1996 Individual copies ...... 1.00 1996 Complete set (one-time mailing) ...... 264.00 1995 Complete set (one-time mailing) ...... 244.00 1994 Complete set (one-time mailing) ...... 223.00 1993 1 Because Title 3 is an annual compilation, this volume and all previous volumes should be retained as a permanent reference source. 2 The July 1, 1985 edition of 32 CFR Parts 1–189 contains a note only for Parts 1–39 inclusive. For the full text of the Defense Acquisition Regulations in Parts 1–39, consult the three CFR volumes issued as of July 1, 1984, containing those parts. 3 The July 1, 1985 edition of 41 CFR Chapters 1–100 contains a note only for Chapters 1 to 49 inclusive. For the full text of procurement regulations in Chapters 1 to 49, consult the eleven CFR volumes issued as of July 1, 1984 containing those chapters. 4 No amendments to this volume were promulgated during the period Apr. 1, 1990 to Mar. 31, 1995. The CFR volume issued April 1, 1990, should be retained. 5 No amendments to this volume were promulgated during the period July 1, 1991 to June 30, 1995. The CFR volume issued July 1, 1991, should be retained. 6 No amendments to this volume were promulgated during the period January 1, 1993 to December 31, 1994. The CFR volume issued January 1, 1993, should be retained. 7 No amendments to this volume were promulgated during the period April 1, 1994 to March 31, 1995. The CFR volume issued April 1, 1994, should be retained.