Pages 20419±20700 Vol. 61 5±7±96 No. 89 federal register May 7,1996 Tuesday announcement ontheinsidecoverofthisissue. For informationonbriefingsinWashington,DC,see Briefings onHowToUsetheFederalRegister 1 II Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996

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2 III

Contents Federal Register Vol. 61, No. 89

Tuesday, May 7, 1996

Agriculture Department Drug Enforcement Administration See Animal and Plant Health Inspection Service NOTICES See Economic Research Service Applications, hearings, determinations, etc.: See Food Safety and Inspection Service Organix Inc., 20541

Animal and Plant Health Inspection Service Economic Research Service RULES NOTICES Import and export user fees, 20421–20436 Agency information collection activities: NOTICES Proposed collection; comment request, 20508–20509 Meetings: National Animal Damage Control Advisory Committee, Education Department 20508 NOTICES Agency information collection activities: Army Department Proposed collection; comment request, 20516–20517 See Engineers Corps Submission for OMB review; comment request, 20517– NOTICES 20518 Environmental statements; availability, etc.: Base realignment and closure— Employment and Training Administration Evans Subport Fort Monmouth, NJ, 20516 NOTICES Agency information collection activities: Arts and Humanities, National Foundation Proposed collection; comment request, 20542–20543 See National Foundation on the Arts and the Humanities Energy Department Centers for Disease Control and Prevention See Federal Energy Regulatory Commission NOTICES NOTICES Meetings: Natural gas exportation and importation: ICD–9–CM Coordination and Maintenance Committee, Eastern Energy Marketing, Inc., et al., 20518 20526–20527 Tenneco Gas Marketing Co., 20518 Vital and Health Statistics National Committee, 20527 Engineers Corps Coast Guard NOTICES RULES Base realignment and closure: Vessels; small passenger inspection and certification Surplus Federal property— Correction, 20556–20557 Rio Vista Army Reserve Facility, CA, 20516

Commerce Department Environmental Protection Agency See National Institute of Standards and Technology RULES See National Oceanic and Atmospheric Administration Air quality implementation plans; approval and NOTICES promulgation; various States; air quality planning Agency information collection activities: purposes; designation of areas: Submission for OMB review; comment request, 20513 Ohio, 20458–20473 Air quality implementation plans; approval and Commodity Futures Trading Commission promulgation; various States: NOTICES California, 20453–20455 Agency information collection activities: Illinois, 20455–20457 Proposed collection; comment request, 20515–20516 Superfund program: Emergency Planning and Community Right-to-Know Comptroller of the Currency Act— NOTICES Extremely hazardous substances list and reportable Agency information collection activities: quantities, 20473–20490 Proposed collection; comment request, 20551–20552 National oil and hazardous substances contingency plan— Consumer Product Safety Commission National priorities list update, 20473 PROPOSED RULES Water pollution control: Consumer Product Safety Act: Water quality standards— Multi-purpose lighters; child-resistance standard; Arizona surface waters, 20686–20694 rulemaking petition, 20503 PROPOSED RULES Air quality implementation plans; approval and Defense Department promulgation; various States: See Army Department California, 20504 See Engineers Corps Illinois, 20504–20505 IV Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Contents

NOTICES Applications, hearings, determinations, etc.: Agency information collection activities: CNG Transmission Corp., 20518–20519 Proposed collection; comment request, 20520–20522 National Fuel Gas Supply Corp., 20519 Meetings: Gulf of Mexico Program Joint Management and Policy Federal Highway Administration Review Board Committees, 20522 RULES Reports; availability, etc.: Motor vehicle safety standards: Particulate matter; air quality criteria, 20522–20523 Hazardous materials transportation; technical amendment, 20496–20497 Executive Office of the President NOTICES See Presidential Documents Committees; establishment, renewal, termination, etc.: National Motor Carrier Advisory Committee, 20550 Farm Credit Administration NOTICES Federal Railroad Administration Meetings; Sunshine Act, 20523 RULES Federal Aviation Administration Federal hours of service laws, agency interpretation; Supreme Court decision; nationwide applicability, RULES 20494–20496 Aircraft products and parts; certification procedures: Helicopter design; noise level compliance; type certificates, 20696–20699 Federal Reserve System Airworthiness directives: NOTICES Aerospatiale, 20646–20667 Banks and bank holding companies: Beech, 20638–20639 Change in bank control, 20526 British Aerospace, 20671–20672 Formations, acquisitions, and mergers, 20526 Cessna, 20641–20643 Construcciones Aeronauticas, S.A., 20674–20676 Financial Management Service de Havilland, 20616–20636, 20679–20681 See Fiscal Service Dornier, 20639–20641, 20676–20677 Empresa Brasileira de Aeronautica, S.A. (EMBRAER), Fiscal Service 20636–20638, 20677–20679 RULES Fairchild, 20643–20644 Organization, functions, and authority delegations: Fokker, 20681–20682 Government Losses in Shipment Act, claims; address Jetstream, 20644–20646, 20668–20671 change, 20437 SAAB, 20672–20674 Short Brothers, 20682–20684 Food and Drug Administration NOTICES Federal Communications Commission Meetings: RULES Advisory committees, panels, etc., 20527–20528 Radio stations; table of assignments: California, 20490 Food Safety and Inspection Service Virginia and North Carolina, 20490–20491 NOTICES PROPOSED RULES Meat and poultry inspection: Practice and procedure: Interstate shipment of State-inspected products; North American numbering plan; carrier identification recommendations; comment request, 20509–20513 codes expansion— Transition period extension, 20505 Health and Human Services Department Radio stations; table of assignments: See Centers for Disease Control and Prevention Virginia, 20505–20506 NOTICES See Food and Drug Administration Meetings; Sunshine Act, 20523–20524 See Health Care Financing Administration Rulemaking proceedings; petitions filed, granted, denied, See Health Resources and Services Administration etc.; correction, 20556 See National Institutes of Health

Federal Emergency Management Agency Health Care Financing Administration NOTICES NOTICES Disaster and emergency areas: Privacy Act: Arkansas, 20524 Systems of records, 20528–20531 Illinois, 20524–20525 Indiana, 20525 Health Resources and Services Administration New York, 20525 NOTICES Oregon, 20525–20526 Meetings; advisory committees: June, 20531 Federal Energy Regulatory Commission NOTICES Interior Department Electric rate and corporate regulation filings: See National Park Service Indeck Pepperell Power Associates, Inc., et al., 20519– RULES 20520 Natural resource damage assessments, 20560–20614 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Contents V

Internal Revenue Service Research Grants Division initial review groups, 20538– PROPOSED RULES 20540 Income taxes: Individual returns; automatic filing extension; cross National Oceanic and Atmospheric Administration reference PROPOSED RULES Hearing cancellation, 20503–20504 Fishery conservation and management: NOTICES Summer flounder, 20506–20507 Agency information collection activities: NOTICES Proposed collection; comment request, 20552–20555 Permits: Endangered and threatened species, 20514–20515 International Trade Commission NOTICES National Park Service Meetings; Sunshine Act, 20541 NOTICES Meetings: Justice Department Cape Cod National Seashore Advisory Commission, See Drug Enforcement Administration 20540 National Register of Historic Places: Labor Department Pending nominations, 20540–20541 See Employment and Training Administration See Mine Safety and Health Administration Neighborhood Reinvestment Corporation NOTICES NOTICES Agency information collection activities: Meetings; Sunshine Act, 20545 Submission for OMB review; comment request, 20541– 20542 Nuclear Regulatory Commission NOTICES Mine Safety and Health Administration Agency information collection activities: NOTICES Submission for OMB review; comment request, 20546 Safety standard petitions: Environmental statements; availability, etc.: West End Coal Co. et al., 20543–20545 BP Chemicals, Inc., 20548–20549 Jefferson Proving Ground (U.S. Army), IN, 20546–20548 National Foundation on the Arts and the Humanities Meetings; Sunshine Act, 20549–20550 NOTICES Grants and cooperative agreements; availability, etc.: Presidential Documents Research in learning in museums, 20545–20546 PROCLAMATIONS Special observances: National Highway Traffic Safety Administration Labor History Month (Proc. 6891), 20419 RULES Public Health Service Motor vehicle safety standards: See Centers for Disease Control and Prevention Lamps, reflective devices, and associated equipment— See Food and Drug Administration High intensity discharge light source use in replaceable See Health Resources and Services Administration bulb headlamp systems, 20497–20502 See National Institutes of Health

National Institute for Literacy Surface Transportation Board NOTICES NOTICES Agency information collection activities: Railroad operation, acquisition, construction, etc.: Proposed collection; comment request; correction, 20545 Burlington Northern Railroad Co., 20550 Owensville Terminal Co., Inc., 20550–20551 National Institute of Standards and Technology Pittsburg & Shawmut Railroad, Inc., 20551 NOTICES European Union (EU) commerce; identification of bodies to Transportation Department perform product conformity assessment activities, See Coast Guard 20513–20514 See Federal Aviation Administration See Federal Highway Administration National Institutes of Health See Federal Railroad Administration NOTICES See National Highway Traffic Safety Administration Agency information collection activities: See Surface Transportation Board Submission for OMB review; comment request, 20532 Meetings: Treasury Department National Center for Human Genome Research, 20533 See Comptroller of the Currency National Center for Research Resources, 20533 See Fiscal Service National Eye Institute, 20532–20533 See Internal Revenue Service National Heart, Lung, and Blood Institute, 20533–20534 National Institute of Allergy and Infectious Diseases, United States Information Agency 20534–20537 RULES National Institute of Child Health and Human Exchange visitor program: Development, 20535 Program extension procedures, research programs design National Institute of Mental Health, 20536–20537 and conduct, etc. National Library of Medicine, 20537 Partial stay, 20437 VI Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Contents

NOTICES±I33Art objects; importation for exhibition: Part III Africa: The Art of a Continent, 20555 Department of Transportation, Federal Aviation Administration, 20616–20684 Veterans Affairs Department RULES Acquisition regulations: Part IV Loan guaranty and vocational rehabilitation and Environmental Protection Agency, 20686–20694 counseling programs, 20493–20494 Miscellaneous amendments, 20491–20493 Adjudication; pensions, compensation, dependency, etc.: Part V Vicious habits; references removed, 20438 Department of Transportation, Federal Aviation Board of Veterans Appeals: Administration, 20696–20699 Appeals regulations and rules of practice— Single member and panel decisions, reconsiderations, etc., 20447–20453 Disabilities rating schedule: Reader Aids Endocrine system, 20440–20447 Additional information, including a list of public laws, Fibromyalgia, 20438–20440 telephone numbers, reminders, and finding aids, appears in Organization, functions, and authority delegations: the Reader Aids section at the end of this issue. Miscellaneous amendments, 20438 NOTICES Meetings: Persian Gulf Expert Scientific Committee, 20555 Electronic Bulletin Board Free Electronic Bulletin Board service for Public Law Separate Parts In This Issue numbers, Federal Register finding aids, and a list of documents on public inspection is available on 202–275– Part II 1538 or 275–0920. Department of the Interior, 20560–20614 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 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 803...... 20491 804...... 20491 Proclamations: 805...... 20491 6891...... 20419 806...... 20491 9 CFR 808...... 20491 130...... 20421 810...... 20491 812...... 20491 14 CFR 813...... 20491 21...... 20696 815...... 20491 39 (18 documents) ...... 20616, 816...... 20491 20636, 20638, 20639, 20641, 820...... 20491 20643, 20644, 20646, 20668, 822...... 20491 20669, 20671, 20672, 20674, 828...... 20491 20676, 20677, 20679, 20681, 833...... 20491 20682 834...... 20491 836...... 20491 16 CFR 837...... 20491 Proposed Rules: 846...... 20491 1210...... 20503 871...... 20493 22 CFR 49 CFR 514...... 20437 228...... 20494 26 CFR 397...... 20496 564...... 20497 Proposed Rules: 571...... 20497 1...... 20503 301...... 20503 50 CFR 31 CFR Proposed Rules: 361...... 20437 625...... 20506 38 CFR 2...... 24037 3...... 20438 4 (2 documents) ...... 20438, 20440 19...... 20447 20...... 20447 40 CFR 52 (3 documents) ...... 20453, 20455, 20458 81 458 131...... 20686 300...... 20473 355...... 20473 Proposed Rules: 52 (2 documents) ...... 20504 43 CFR 11...... 20560 46 CFR 114...... 20556 116...... 20556 117...... 20556 118...... 20556 119...... 20556 120...... 20556 121...... 20556 122...... 20556 170...... 20556 173...... 20556 175...... 20556 176...... 20556 177...... 20556 178...... 20556 179...... 20556 180...... 20556 181...... 20556 182...... 20556 183...... 20556 185...... 20556 47 CFR 73 (2 documents) ...... 20490 Proposed Rules: 1...... 20505 73...... 20505 48 CFR 801...... 20491 20419

Federal Register Presidential Documents Vol. 61, No. 89

Tuesday, May 7, 1996

Title 3— Proclamation 6891 May 3, 1996

The President Labor History Month, 1996

By the President of the United States of America

A Proclamation In the early 1900s, millions of Americans left their farms to begin new lives as factory workers. Sadly, many of these citizens found neither secure employment nor higher wages at their new jobs, and the industrial economy brought them exploitation, continued poverty, and the risk of injury and death. No student of American history can forget the images of filthy children emerging from mills and mines, the stories of terrible fires and explosions, or the grim legacy of the slums that grew up in factory towns. Although child labor, sweatshops, and workplace disasters are largely horrors of the past, efforts to eliminate them began to succeed only after workers organized and spoke with a united, independent voice. The American labor movement helped the first generation of industrial employees to express their aspirations and insecurities, empowering them with the necessary tools to define the terms and conditions of their employment and to expand the role of labor in the larger society. As we approach the 21st century, our Nation’s economy is undergoing a transformation as momentous as the change that spurred the exodus from farms to factories 100 years ago. And in facing the challenges posed by global competition and rapid technological advances, the workers of the Information Age need the same effective leadership that allowed their forbears to succeed. Each new generation of workers must embrace the activism that has characterized labor’s rich history, and all Americans should recog- nize the role that labor has played in the continuing progress of our democ- racy. NOW, THEREFORE, I, WILLIAM J. CLINTON, President of the United States of America, by virtue of the authority vested in me by the Constitution and laws of the United States, do hereby proclaim May 1996, as Labor History Month. I call upon Government officials, educators, the media, and all the people of the United States to observe this month with ceremonies, activities, and programs that encourage reflection on the labor movement’s heritage and its many contributions to the creation and maintenance of a just America. IN WITNESS WHEREOF, I have hereunto set my hand this third day of May, in the year of our Lord nineteen hundred and ninety-six, and of the Independence of the United States of America the two hundred and twentieth. œ– [FR Doc. 96–11505

Filed 5–6–96; 8:45 am] Billing code 3195–01–P 20421

Rules and Regulations Federal Register Vol. 61, No. 89

Tuesday, May 7, 1996

This section of the FEDERAL REGISTER Veterinarian, Import/Export Products, administrative support, agency contains regulatory documents having general VS, APHIS, 4700 River Road Unit 40, overhead, and Departmental charges. applicability and legal effect, most of which Riverdale, MD 20737–1231; (301) 734– On May 26, 1995, we published in the are keyed to and codified in the Code of 7830. Federal Register (60 FR 27913–27924, Federal Regulations, which is published under For information concerning services Docket No. 92–174–1) a proposal to 50 titles pursuant to 44 U.S.C. 1510. provided for veterinary diagnostics, amend the regulations by revising and The Code of Federal Regulations is sold by contact Dr. James E. Pearson, Acting adding new hourly, minimum, and flat the Superintendent of Documents. Prices of Director, National Veterinary Services rate user fees in the regulations. We new books are listed in the first FEDERAL Laboratories, P.O. Box 844, Ames, IA proposed to increase most of the hourly, REGISTER issue of each week. 50010; (515) 239–8266. minimum, and flat rate user fees for For information concerning fees, import-related services in §§ 130.2, contact Ms. Barbara Thompson, Chief, 130.3, 130.5, 130.6, 130.7, and 130.9 of DEPARTMENT OF AGRICULTURE Financial Systems and Services Branch, the regulations and for export-related Budget and Accounting Division, services in §§ 130.9 and 130.21 of the Animal and Plant Health Inspection APHIS, 4700 River Road Unit 54, regulations. For services performed on Service Riverdale, MD 20737–1232; (301) 734– overtime, we proposed to add new 5901. 9 CFR Part 130 premium hourly rate user fees, to SUPPLEMENTARY INFORMATION: replace the practice of charging two [Docket No. 92±174±2] separate hourly rates (see §§ 130.5, Background RIN 0579±AA67 130.9 and 130.21 of the regulations). We The Food, Agriculture, Conservation proposed to add a new minimum user Import/Export User Fees and Trade Act of 1990, as amended fee in § 130.3 of the regulations. We (referred to below as the Farm Bill), proposed to add a new § 130.10 for AGENCY: Animal and Plant Health authorizes the Secretary of Agriculture, hourly, minimum, and flat rate user fees Inspection Service, USDA. among other things, to prescribe and for pet birds. We proposed to add new ACTION: Final rule. collect fees to reimburse the Secretary requirements for special mail handling for the cost of carrying out the to be paid for by the user in §§ 130.14 SUMMARY: We are amending user fees for provisions of the Federal animal through 130.18 of the regulations. We certain import- and export-related quarantine laws that relate to the proposed to add a new fee for services we provide for live animals and importation, entry, and exportation of nonendorsed export health certificates birds, animal products, organisms and animals, articles, or means of in § 130.20 of the regulations. vectors, and germ plasm and veterinary conveyance (section 2509(c)(1) of the Additionally, we proposed to accept diagnostic services. We are also Farm Bill). The Secretary of Agriculture credit cards in certain locations as an establishing user fees for certain import- is also authorized, under section optional payment method. We also and export-related services we provide 2509(c)(2) of the Farm Bill, to prescribe proposed to make several other changes for live animals and birds, and animal and collect fees to recover the costs of to simplify and clarify the regulations. products and byproducts. We are also carrying out certain veterinary We solicited comments concerning making several miscellaneous changes, diagnostics services. our proposal for 60 days ending July 25, such as amending the definitions of The user fee regulations in 9 CFR part 1995. We received 60 comments by that certain words. These actions are 130 (referred to below as the date. They were from veterinarians, necessary to help ensure that we recover regulations) prescribe user fees that the representatives of agricultural our costs and to simplify and clarify the Animal and Plant Health Inspection industries, exporters, producers, a State application of user fees for the public. Service (APHIS) of the U.S. Department department of livestock, a Member of These actions are taken in accordance of Agriculture (USDA) collects for Congress, and other interested parties. with the Food, Agriculture, various services that APHIS provides. Conservation, and Trade Act of 1990, as Summary of Changes Made in Response The regulations currently include user amended, which gives us the authority to Comments fees for: (1) Providing quarantine, to set and collect these user fees. importation, and entry services within We are making the following changes EFFECTIVE DATE: June 6, 1996. the United States for imported animals; in response to the comments we FOR FURTHER INFORMATION CONTACT: For (2) conducting certain veterinary received. We are combining the services information concerning services diagnostics services; (3) endorsing covered under § 130.4 with the services provided for live animals and birds, and export health certificates for animals; (4) covered under § 130.5. Section 130.4 germ plasm, contact Dr. Gary S. providing certain inspection and covers inspection services at privately Colgrove, Chief Staff Veterinarian, supervision services within the United operated permanent import-quarantine National Center for Import and Export, States for animals intended for export; facilities. Under § 130.4, a flat rate user VS, APHIS, 4700 River Road Unit 38, and (5) conducting certain veterinary fee is charged for each animal Riverdale, MD 20737–1231; (301) 734– inspections outside the United States. quarantined at the facility. Section 130.5 3294. Our user fees are calculated to recover covers inspection services at privately For information concerning services the full cost of providing the service for operated temporary import-quarantine provided for animal products and which the user fee is charged. The cost facilities. Under § 130.5, an hourly user byproducts, organisms and vectors, of providing a service includes direct fee is charged for animals quarantined at contact Dr. Kathleen Akin, Senior Staff labor costs and a pro rata share of the facility. We are adding quarter-hour 20422 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations and minimum user fee rates to premium animal, article, or means of conveyance One commenter questioned charging user fees added in §§ 130.5, 130.9, and or relating to veterinary diagnostics, is user fees for certain services when other 130.21. We are clarifying § 130.20(a) and performed pursuant to the section, shall services are provided at no cost. The § 130.20(b)(1) to specify that the user be liable for payment of fees assessed.’’ commenter referenced free rabies fees listed in § 130.20(b)(1) for Generally speaking, no one is required vaccination clinics on reservations. endorsing export health certificates to conduct any business or endeavor The Farm Bill identified specific which require tests or vaccinations are which is regulated by APHIS. However, program areas for the implementation of charged for endorsements when tests or anyone who does so must comply with user fees, generally related to the vaccinations are required. We are APHIS requirements. In this manner, all importation and exportation of animals changing ‘‘APHIS veterinarian’’ to users ask for service from APHIS. The and animal products. APHIS does not ‘‘designated APHIS employee’’ and APHIS user fees herein are designed to have the authority under the Farm Bill changing ‘‘requested’’ to ‘‘requested and recover and fund the cost of providing to charge fees for other services, such as reviewed’’ in § 130.20(d) of this final specific services. As such, the APHIS rabies vaccinations, which we provide rule. In addition, we are revising the user fee is a fee for specific services on reservations to protect public health. text of footnote 9 to reflect the provided to a certain portion of the 2. Fee Calculations availability of lists for APHIS offices public and, therefore, is not a tax. that accept cash or credit cards. Three commenters stated that our We received several comments related Footnotes to text or tables in §§ 130.7, services are already paid for by taxes, to how we calculated our user fees. One 130.8, 130.10, 130.14, and 130.15 have and therefore, we should not charge fees commenter was concerned about the been revised to add clarity. The for them. One commenter suggested that methods used to calculate the fees and comments and responses are discussed we should fund increases in the costs the possibility that the user fees are below by topic. through other methods. underwriting other APHIS services. After the passage of the 1990 Farm Several comments questioned whether General Comments Bill, Congress reduced APHIS’ we should include certain cost factors, One commenter opposed the entire appropriations (i.e., tax revenue) by the for example, agency overhead charges, proposed rule. All of the other estimated costs of providing these in calculating user fees. Other commenters opposed some portion of import- and export-related services. comments stated that we would recover the proposed rule. Twelve commenters Congress authorized APHIS to recover more money from our proposed user included the following positive all costs associated with these services fees than it costs to provide APHIS comments concerning user fees and the by establishing and charging user fees. services. services APHIS provides. Several Consequently, any increases in our costs As described in the proposal, the user commenters expressed an must be recovered by increasing the fees were calculated to recover the full understanding of our need to increase user fees we charge. Otherwise, we cost of providing the service for which user fees or supported user fees which would have to reduce or discontinue the the fee is charged. ‘‘Full cost’’ includes cover costs. Several expressed service or use funds appropriated for not only the direct labor of the appreciation for the services APHIS other purposes, to the detriment of the veterinarian, animal health technician, provides, such as APHIS’ role in disease program from which the funds were or other APHIS personnel providing the control and maintenance of a healthy reallocated. service, but a pro rata share of and robust livestock industry in the One commenter stated that APHIS administrative support, agency United States, helping export business user fees should not be used for general overhead, and Departmental charges. in the United States, and negotiating Federal budget deficit reduction. One These additional indirect and overhead import- and export-related issues with commenter questioned what will be costs are included as directed in the foreign countries. One commenter done with revenues. Office of Management and Budget supported modest increases in certain The user fees are not being used for (OMB) Circular A–25, User Charges, and user fees as proposed. general Federal budget deficit reduction in accordance with generally accepted in the sense that the revenue does not cost accounting principles. 1. Taxes and Budget Deficit fund or offset general government Had Congress intended for APHIS to Nine commenters expressed concerns operations. The user fees collected pay recover only direct labor costs, the about taxes and the budget deficit. Some for the actual user fee services provided authorizing language would have commenters expressed more than one and will allow APHIS to continue specified that and Congress would have concern; specific concerns follow. providing import- and export-related continued to give APHIS appropriations Two commenters stated that APHIS and veterinary diagnostic services. The to fully fund all indirect and overhead was assessing taxes of its own volition. user fees our Agency collects for these costs associated with import- and Six commenters stated that the APHIS services are deposited into user fee export-related services. The comments user fee is a tax, not a fee. accounts, and the salaries of that we may be underwriting other A tax is money paid to support veterinarians, animal health services and that we will recover more government operations that benefit the technicians, and other APHIS personnel money than it costs to provide the general public. A user fee is money who perform these services are paid service would only be true if the Farm collected for a specific service provided from this account. An employee who Bill authorized us to only recover direct to a readily identifiable recipient. The spends a portion of his work time on costs. However, because we are 1990 Farm Bill authorizes USDA to user fee activities and a portion on other authorized to fully recover all costs, our prescribe and collect user fees to activities is paid the appropriate fees include all appropriate direct, reimburse the cost of carrying out percentage of his salary with user fee indirect, and overhead costs. certain import- and export-related revenue. In addition, a pro rata share of services for animals, animal products, administrative support, agency 3. Trade Concerns and veterinary diagnostics. The Farm overhead, and Departmental charges is Twenty-eight commenters expressed Bill further states that ‘‘Any person for paid from this account. concern about the increases in user fees whom an activity related to the Two commenters questioned user fees and the possible subsequent decrease in importation, entry, or exportation of an as they relate to other APHIS services. exports. Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20423

We realize that payment of the than for animals exported to the rest of user fee, then we will recalculate the proposed user fees will increase the up- the world. user fee for the service to reflect those front cost of doing business for One commenter suggested that APHIS changes. importers and exporters. However, should seek elimination of import- and 6. Economic Analysis before this time, users have been export-related testing procedures which subsidized by the taxpayers in general, are not science- or risk-based and which One commenter stated that we should in that those who receive services from may add unnecessary costs to import- have included a small business impact APHIS have not been charged the full and export-related procedures. statement in the proposed rule. cost for services. As explained above, According to the World Trade A regulatory flexibility analysis, appropriations from taxes are not Organization (WTO), as established by which includes a small business impact available to fund these services. To the Uruguay Round of the General statement, was included in the proposed continue providing import- and export- Agreement on Tariffs and Trade, and the regulations at 60 FR 27919–27920. related and veterinary diagnostic North American Free Trade Agreement One commenter stated that the costs services, APHIS must charge user fees (NAFTA), effective January 1995, used in our economic analysis did not which will recover the costs of import- and export-related requirements provide an accurate picture of how providing services. We attempt to must be science- and risk-based. Along importers assess costs related to minimize the cost of our services to with the United States, many countries importing animals. The commenter keep APHIS user fees at the lowest are revising their requirements to specified that these costs are generally possible level. We do not anticipate that comply with WTO and NAFTA. In broken down into the following three exports will decline significantly as a addition, APHIS continually negotiates areas: the purchase price of the animal, result of these increases in user fees. with other countries to achieve less freight charges, and importing or Many commenters stated that our onerous import requirements for U.S. exporting expenses. proposed user fees would make it exporters. Since our costs vary The costs used in the economic difficult or impossible for U.S. products depending on the requirements imposed analysis performed for the regulatory to compete in the international by the importing country, when other flexibility analysis for the proposal marketplace. Examples of the issues countries lessen their import included all of these expenses. As stated raised included the following: U.S. requirements, our user fees may in the proposal, the figures shown in the products will be less competitive, the decrease. For example, if a country were analysis included purchase and import increased user fees will be a deterrent to to no longer require tests or were to costs, including freight. Therefore, we international trade, exportation of allow more animals on a single export are making no changes as a result of this animals will become unprofitable, and health certificate, the average amount of comment. there will be a decrease in export time it would take to provide activity. Many of these comments endorsement services would decrease 7. Effective Date mentioned trade related issues with and the user fees charged could Three commenters suggested that we Canada. decrease. delay the effective date of the final rule. Although some countries do not We understand the commenters’ 5. Improve Services to Lower Costs currently charge for import- and export- desire to make business plans and not related services, user fees for these Six commenters suggested that we have business affected by increases in services are being adopted by more and lower costs and simplify paperwork our user fees. Our proposal signaled our more countries. In fact, as of May 3, requirements. Five commenters intention to revise the import- and 1995, Canada charges user fees for suggested that we review and improve export-related service user fees. The certain import- and export-related services. Specific suggestions included proposal was published in the Federal animal health services (see May 3, 1995, privatizing services, automating Register on May 25, 1995, and open for Canada Gazette Part II, Vol. 129, No. 9, services, streamlining tests, increasing public comments for 60 days. This rule SOR/DORS/95–198). Therefore, we do field staff, and basing user fees on speed will not take effect until 30 days after not believe that U.S. exporters are at a of service. the date it is published in the Federal competitive disadvantage compared APHIS continually strives to improve Register. This delay should give the with exporters in other countries. efficiency in operations. APHIS seeks to commenters and others adequate time to eliminate duplication of services and to prepare. 4. Other Countries’ Requirements utilize employees better without Two commenters raised the following jeopardizing the quality of our work in 8. Independent Review concerns related to the requirements carrying out the provisions of the One commenter suggested that a other countries impose on U.S. exports. Federal animal quarantine laws. Most review team should be established to One commenter questioned why it costs paperwork services and the related costs conduct an independent user fee significantly more to export animals to associated with imports and exports are review. Canada as opposed to exporting animals required by the importing country and APHIS monitors user fees regularly to the European Union. we cannot do anything directly to and reviews user fees at least annually APHIS costs for export-related change those requirements. However, as to ensure that they continue to services depend on the importing explained above, we do try to negotiate correspond with our costs. In addition, countries’ requirements. Canada has with other countries to make outside reviews are performed by the significantly different paperwork requirements less onerous. If we Office of the Inspector General and the requirements than most other countries propose to eliminate a service for which General Accounting Office (GAO). in the world. Often, more work is we have a user fee, then we will also required on the part of APHIS propose to eliminate the user fee. 9. Privately Owned Import Quarantine employees to ensure the animals being Likewise, if in the future we propose to Facilities (§§ 130.4 and 130.5) exported have met all of Canada’s add a service, then we may also propose One commenter pointed out that paperwork requirements. In those to add a user fee for the service. If we inspection services for animals provided instances, the user fees for animals propose in the future to substantially for privately owned permanent import being exported to Canada may be higher change a service for which we charge a quarantine facilities under § 130.4 are 20424 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations similar to those provided for privately of charging a user fee at the hourly rate entry services at all ports. The owned temporary import quarantine (per 9 CFR part 130) plus reimbursable occasional inspections which require an facilities under § 130.5, and stated that overtime at the hourly rate (per 9 CFR APHIS veterinarian to travel to a limited having different user fees for similar part 97). port, as designated in 9 CFR part 92, services is unfair. The commenter stated One commenter protested that the were one of the many factors considered that depending on the number of proposed premium user fee is an in calculating the user fees. To reflect animals being imported, the user fees increase over the current overtime rate. past experience, the calculation for could be less for the services provided While the hourly rate for the premium these user fees included 2 hours of under § 130.5 during the regular tour of user fee is higher than the hourly travel time for 1 percent of the estimated duty and on overtime than the user fee reimbursable overtime rate, application importations. We are making no changes for the same services if provided under of the premium user fee will decrease based on this comment. However, we § 130.4. The commenter asked if APHIS the overall user fee charges because the will consider this for future revisions to is recovering all the import-related costs premium user fee will be charged in lieu the user fees. All user fee changes will from the hourly user fee charged under of both the hourly user fee and be published in the Federal Register for § 130.5; and if so, why is there such a reimbursable overtime. Therefore, we public comment. difference between that hourly user fee are making no changes based on this and the per head flat rate user fee plus comment. 12. Germ Plasm User Fees (§ 130.8) One commenter questioned how the reimbursable overtime proposed under One commenter questioned the new premium user fee will apply. § 130.4 which can be higher. statement in the proposal that empty Another commenter, stating that work The commenter is correct that germ plasm containers that have been for which the user fees are charged depending on the number of animals exported are presented for inspection usually takes 15 minutes, protested the being imported, if service must be when returned to the United States. The minimum time charged for the work provided on overtime, then the per head commenter asked if there was a protocol user fees charged under § 130.4 can be during overtime. For clarification, in §§ 130.5, 130.9, in place to ensure that these containers higher than the hourly user fees charged are presented for inspection. under § 130.5. We have evaluated this and 130.21 we will add that the situation and have determined that procedures for applying the new APHIS employees review ship based on the similar nature of the premium user fee rates will follow the manifests to determine which items services being provided, animals that procedures for applying reimbursable need to be held for inspection. The are imported into a permanent facility overtime as prescribed under 9 CFR part empty germ plasm containers are listed should be charged at the same rate as 97 with regard, for example, to call- on the ship manifests, held, and those imported into a temporary facility. backs, continuation, commuted travel inspected. As suggested by the commenter, we are time, and maximum travel times. For One commenter suggested charging an making the fees the same. We are example, when 9 CFR part 97 prescribes hourly user fee for import germ plasm making this change by eliminating a 2 hour minimum, that 2 hour inspections because the time spent § 130.4 and including privately owned minimum will be charged at the performing the inspections at the port is permanent import quarantine facilities premium user fee rate. This is consistent usually 3 hours; this time would not be under § 130.5. with United States Code, Title 5 covered by the flat rate user fee. Government Organizations and The calculation for the user fee for 10. Overtime and Premium User Fees Employees, Subchapter V Premium Pay, (§§ 130.5, 130.9, and 130.21) imported germ plasm considered section 5542 (referenced in the authority inspection at all ports. These user fees One commenter stated that charging citation for this final rule), which states were calculated on the average direct both reimbursable overtime and the flat that ‘‘unscheduled overtime work labor hours required for the inspections rate user fee under § 130.4 is double performed by an employee on a day nationwide. We surveyed APHIS charging for the time spent by USDA when work was not scheduled for him, employees performing the inspections personnel. or for which he is required to return to and visited ports to determine the As explained above, we are his place of employment, is deemed at amount of direct labor required for the eliminating § 130.4 and these services least 2 hours in duration.’’ Because inspections. Therefore, we are making will now be covered under § 130.5. employees are entitled to a 2 hour no changes based on this comment. Under § 130.5, during overtime, only the minimum of pay in these circumstances, However, we will consider this for premium rate user fee will be charged. we must charge a minimum of 2 hours One commenter asked if there are any future revisions. All user fee changes in order to recover the cost of providing will be published in the Federal quarter- or half-hour premium user fee that service on overtime. rates for the premium hourly user fee. Register for public comment. We are adding quarter-hour and 11. Import Fee (§ 130.7) One commenter suggested we charge minimum rates for each of the new One commenter stated that the user the same amount for endorsing export premium user fees. Not listing such fee charged in § 130.7 would not fully health certificates for each group of five rates was an oversight in the proposal. recover costs if an APHIS veterinarian embryo donor pairs. For periods of less than an hour, the had to travel to a port to perform the We have determined that there is a quarter-hour premium rate will be inspections. The commenter suggested marginal cost decrease to endorse multiplied by 2 or 3 for half and three that we change this flat rate user fee to additional groups of donor pairs on the quarters of an hour, respectively. an hourly user fee to fully recover costs. same export health certificate. User fees Therefore, we are not adding half-hour The commenter is correct that, as are calculated to recover only the cost premium rates. The premium user fee calculated, the user fees may not cover of services. Therefore, the proposed will become the new hourly overtime the costs of providing import and entry tiered user fee rate, with a lower fee for charge for import- and export-related services at any given air or ocean port. additional groups of donor pairs on the services; it will apply to services These user fees were calculated based same certificate, is appropriate. We are provided under §§ 130.5, 130.9, and on the average time required for an making no changes based on this 130.21 and replace our previous policy APHIS employee to provide import or comment. Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20425

13. User Fees for Endorsing Export completing APHIS paperwork related to costs of these activities for Health Certificates (§ 130.20) the endorsement. Many of the activities reasonableness. Adjustments were made The May 26, 1995, proposed rule also listed above must be performed to make for anticipated changes in volume, proposed to raise user fees for endorsing it possible for APHIS employees to based on past changes and other factors export health certificates for the endorse the export health certificates. such as current market and economic exportation of animals and animal Some endorsements are for exportations conditions. We put as much of our supporting products. APHIS employees endorse which are routine and require relatively little time. Other endorsements require data in the proposed rulemaking as export health certificates in accordance more work and therefore take more possible. However, it was not feasible to with the regulations in 9 CFR part 91. time. Further, endorsements of export include all the materials used to An APHIS endorsement certifies that health certificates of the same certificate develop the user fees. Therefore, as animals and animal products being category take different amounts of time stated in the proposed rulemaking, we exported from the United States are free because import requirements differ for made it available for inspection at our from communicable diseases. each importing country. On average, headquarters in Riverdale, MD. Most of the comments we received when no tests or vaccinations are Many of the comments related to the addressed these user fees. The required, direct labor time for endorsing proposed increases in poultry health commenters were opposed to any fee export health certificates varies, by certificates. Therefore, we have increases. The comments raised the category, between 14 and 22 minutes, included an example of the calculation following issues. for example, endorsements for poultry for the user fee for endorsing export User Fee Increases take 18 minutes. On average, when health certificates for poultry. The average amount of time it takes to According to most of the commenters, verification of tests or vaccinations is required, direct labor time for endorsing endorse an export health certificate for proposed user fees for endorsement of export health certificates varies, based poultry is 18 minutes, which can export health certificates are too high, on the number of tests, between 45 and include any of the direct labor activities and the increases are not justified. 65 minutes for the first animal on the listed above. Using the average direct We understand that some of the certificate. labor rate per hour of $34.06, the direct proposed user fees for endorsement of After estimating the average direct labor cost for 18 minutes is $10.08. As export health certificates are labor time involved in endorsing export described earlier, the following costs are significantly higher than the previous health certificates, direct labor costs the pro rata share for endorsing export user fees. The reason is that the were calculated. To calculate the direct health certificates. Administrative previous user fees were based on labor costs, we used the actual salary of support costs are added at about $0.69 estimates and were set too low. The each individual that provides the for each $1 of direct labor incurred, original user fees for export health services and weighted these costs adding $6.89. Agency overhead and certificates implemented in January according to the number of export departmental charges are added at $2.74 1992 were calculated using the best health certificates endorsed at each and $1.08, respectively. The total cost is information available at that time. Since location to arrive at the average direct $20.79, which is rounded up to the that time, APHIS has separately labor rate per hour, $34.06. This nearest quarter to $21.00. When identified, through our accounting includes salary and benefits. factoring in all of the costs involved in system, costs for services for which user The average number of minutes per endorsing an export health certificate, fees are authorized. Our accounting data endorsement is multiplied by the the fees are reasonable. When and a deficit of over $1 million for each average direct labor rate to arrive at the comparing the proposed user fees to the fiscal year from 1992 through 1994 for total direct labor cost in each certificate previous user fees, which were too low, export-related user fee services shows category. they appear high. However, we could that the previous user fees have not User fee calculations were based on not continue to provide these services if been recovering our costs. Our proposed the direct labor costs and a pro rata we did not increase the user fees to fully user fees were calculated based on more share of support costs, agency overhead, recover our costs. Therefore, we are accurate information, including all of and Departmental charges. Costs were making no changes based on these the costs of providing our services, than assigned directly to a service only when comments. was available when we calculated our the cost was directly related to previous user fees. providing that service. Where an Objections to User Fees for Endorsing In addition to our accounting data, we expense was attributable to several or all Export Health Certificates surveyed APHIS locations nationwide categories of service, it was pro-rated Many commenters objected in general where export health certificates are among the categories based on historic terms to user fees for endorsing export endorsed to identify the amount of direct labor staff hours. This calculation health certificates. direct labor time APHIS employees provided the raw fee. Export health certificates are required spend providing these services. Direct As explained in the proposal, we by the country importing the animal or labor activities may include the rounded the raw fees up to the nearest animal product; they are not required by following: Telephone time for providing quarter. We rounded them off to APHIS, USDA, or any other agency or information about the export health simplify collection and accounting. We organization within the Federal certification process, mailing rounded our user fees up, rather than Government. Therefore, we are unable information to customers, protocol down, because if we were to round to eliminate services and costs research, review of paperwork such as down, even if only by pennies, the user associated with the endorsement of health certificates, verification of fees would not fully recover our costs. export health certificates. However, we laboratory test results, confirmation that If there is a shortfall for a service do attempt, whenever possible, to the importing country’s requirements category, we cannot recover it by negotiate with foreign governments to have been met, paperwork completeness charging a higher user fee for another eliminate export health certificate review, certification statements review, service category. requirements or make them less onerous endorsement/signing, placing an official We compared the resulting user fees to U.S. exporters. We are continually seal on documents if needed, and and the revenue they generate to the negotiating with other countries to 20426 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations eliminate or minimize requirements. fees to endorse export health requirements have been met, paperwork The success of our negotiations can be certificates. Several commenters raised completeness review, certification seen in the following changes in other more than one issue; specific issues statements review, endorsement/ country’s requirements. Canadian test follow. signing, placing an official seal on requirements for blue tongue tests on Five commenters took exception to documents if needed, and completing live cattle have been liberalized. Chile the perceived duplication of services APHIS paperwork related to the has dropped test requirements for provided by local veterinarians and endorsement. Many of the activities contagious caprine pleuropneumonia APHIS veterinarians. listed above must be performed to make tests on U.S. goats. Argentina has Even though local veterinarians may it possible for APHIS employees to dropped test requirements for be federally accredited, importing endorse the export health certificates. contagious equine metritis test countries require an APHIS veterinarian Multiple Versus Single Export Health requirements for horses. In addition, to endorse export health certificates. Certificates there are ongoing negotiations with Several commenters objected to user Mexico to eliminate their requirement fees for services required by the Three commenters were concerned that breeding swine be tested for regulations, as opposed to voluntary about whether we would charge for porcine respiratory and reproductive services. multiple or single export health syndrome, and with Russia to sustain Our authority to collect user fees does certificates in situations where multiple markets for U.S. fresh and frozen not distinguish between mandatory and export health certificates are required poultry meat. We will continue to work voluntary services. Further, we do not for a single exportation or where for improvements in these and other agree with the commenters’ basic multiple similar export health areas. proposition that users do not ask for certificates are required in a limited APHIS services if they are complying time. Examples included egg shipments Small Business with a regulatory requirement. As stated to one corporate agent who then Many commenters maintained the in § 130.20 of the regulations, ‘‘An redistributes the eggs to various proposed APHIS user fees would be export certificate may need to be customers; containers of export product detrimental to small businesses in endorsed for an animal being exported which require up to five copies of the general, or to specific industries, such as from the United States if the country to same export health certificate, each manufacturers of medical diagnostic which the animal is being shipped requiring an original signature; and reagents. Other commenters stated that requires one. APHIS endorses export hundreds of export health certificates paying the user fees would be a health certificates as a service.’’ No one per month where the commenter hardship, increase their cost of doing is required to conduct any business or suggested that economies of scale and business, or have other detrimental endeavor which is regulated by APHIS. time management could be realized if effects. Some commenters proposed that However, anyone who does so must numerous certificates are signed at the we exempt certain industries or classes comply with APHIS requirements. In same time. of users from the proposed user fees or this manner, all users ask for service Different countries have different charge them reduced fees. Among those from APHIS. requirements as to the number and mentioned were members of the poultry APHIS services are provided to kinds of tests that are required and the industry involved in the National enhance U.S. agriculture. APHIS number of animals, birds, or animal Poultry Improvement Plan. services concerning exportation of products which can be covered by one We realize that the proposed user fees animals and animal products are export health certificate. As a result, the may increase the up-front cost of doing designed either to provide services to amount of time required to endorse business. APHIS sympathizes with these exporters which they need in order to export health certificates varies. Since commenters and has attempted to meet requirements of the importing our goal is to fully recover our costs, we minimize the cost of services to keep the country, or to help ensure that no charge the user fee that equals the work user fees at the lowest possible level for infected animals or animal products are required for an export health certificate all users. exported from the United States. This going from one consignee to one However, when Congress authorized service helps protect the individual consignor. If the APHIS employee APHIS to prescribe and collect user fees exporter and helps foreign markets for responsible for endorsing the export to recover the costs of import- and American animals and animal products. health certificate determines that the export-related services for animals, Many commenters asserted that most animals, birds, or animal products are birds, and animal products, it of the work is performed by the part of one consignment, originating specifically reduced APHIS’ exporters and local veterinarians, and from one farm or ranch and destined for appropriations by the estimated amount that APHIS only signs the forms. one location, the user is charged as of providing such services. Currently, Even though in some instances it may though all of the animals, birds, or APHIS is not appropriated funds to appear to the person obtaining the animal products are on one export cover the cost of providing these endorsement for the export health health certificate. If this is not the case, services. Therefore, APHIS cannot certificate that the only step APHIS does more work may be required for the exempt certain classes of users, such as is sign the certificates, there are many endorsement, and a separate fee is small businesses, from the user fees, and other steps that may be involved. As assessed for each endorsement. For cannot charge user fees which recover explained earlier in response to another occasions where shipments being less than the full cost of providing the comment, direct labor activities may exported from the same consignor to the service without using funds include the following: Telephone time same consignee are presented a day appropriated for other purposes. We are for providing information about the apart, a separate fee is charged for each therefore not making any changes based export health certification process, endorsement. on these comments. mailing information to customers, protocol research, review of paperwork Nonendorsed Export Health Certificates Services Provided such as health certificates, verification Seven commenters opposed the new Nine commenters addressed the of laboratory test results, confirmation user fee in § 130.20(d) for nonendorsed services for which APHIS charges user that the importing country’s export health certificates. There Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20427 appeared to be confusion about the do not require tests or vaccinations. Executive Order 12866 and Regulatory reasons for charging the user fee for This is because APHIS personnel must Flexibility Act nonendorsed export health certificates verify the results of tests or This rule has been reviewed under and when the user fee would be vaccinations. The greater the number of Executive Order 12866. The rule has charged. animals, and the larger the number of been determined to be significant for the To clarify our intentions, we are not tests or vaccinations, the more time purposes of Executive Order 12866 and, charging $16.50 for blank export health consuming it is for APHIS personnel to therefore, has been reviewed by the certificates. Rather, the user fee will be perform the verifications necessary to Office of Management and Budget. assessed after the APHIS veterinarian endorse export health certificates. To In accordance with 5 U.S.C. 601 et has received the export health certificate clarify which fee is charged, we are seq., we have performed a Final for endorsement, has begun to review it, revising the text in § 130.20(a) and (b)(1) Regulatory Flexibility Analysis, set forth and subsequently finds a problem to indicate that § 130.20(b)(1) applies below, regarding the economic effect of which prevents him or her from when tests or vaccinations are required this rule on small entities. endorsing the export health certificate and § 130.20(a) applies when tests and Need and Objective of This Rule as presented. At this point the APHIS vaccinations are not required. In accordance with the Farm Bill of veterinarian will return the 1990, the Secretary of Agriculture is nonendorsed export health certificate to Reconsider User Fee Increases authorized to prescribe and collect fees the exporter for corrective action. Since to reimburse the Secretary for the cost work has been performed, we must Three commenters suggested that we of carrying out the provisions of the charge the user fee to recover our costs reconsider the user fee increases for Federal animal quarantine laws that for the services. To clarify this, we are export health certificates and get more relate to the importation, entry, and revising the wording proposed in input from industry. exportation of animals, articles, or § 130.20(d) to specify that the charge By publishing the proposed rule and means of conveyance (section 2509(c)(1) applies to export health certificates requesting comments for 60 days we of the 1990 Farm Bill). The Secretary of presented for endorsement which were believe that we have provided industry Agriculture is also authorized, under reviewed, but not endorsed. with ample opportunity to provide input into the changes in the export section 2509(c)(2) of the Farm Bill, to Nonslaughter Horses to Canada health certificate user fees. Therefore, prescribe and collect fees to recover the One commenter raised concerns about we are making no changes based on costs of carrying out certain veterinary the movement of race horses to Canada. these comments. diagnostics services. As a result of this The commenter maintained that export authority, Congress no longer allocates health certificates and inspections APHIS veterinarian funds to APHIS for these import- and export-related services and veterinary should not be required for race horses, One commenter questioned what and stated that Canadian race tracks are diagnostics services. Therefore, we would happen when an export health established user fees which were dropping the Coggins test requirement. certificate for an animal product is not As explained earlier, we are intended to recover the full cost of endorsed by an APHIS veterinarian, but continually negotiating with Canada providing these services. The cost of by another APHIS employee. and other countries to eliminate or providing these services includes direct minimize their import requirements. Other designated APHIS employees labor costs and a pro rata share of The movement of race horses is one of may endorse export health certificates administrative support, agency the items under discussion. If Canadian for animal products. Therefore, in overhead, and Departmental charges. requirements change, or if a service is § 130.20(d), we are changing the term When we established our original user no longer required because Canada has ‘‘APHIS veterinarian’’ to ‘‘designated fees on February 9, 1992, we used the changed its import requirements, any APHIS employee’’. best estimates we had available. At that time, our accounting system did not corresponding fee changes will be 14. Payment of User Fees (§ 130.50) published in the Federal Register for track costs related to these services public comment. One commenter suggested that we separately from other appropriation funded activities. When a service has Slaughter Animals to Canada or Mexico charge user fees in whole dollar amounts to eliminate the need for been provided to the users free of charge One commenter questioned whether, APHIS offices to keep and make change. for years, it is difficult to predict the for slaughter animals going to Canada or economic decisions people will make Mexico, we will charge the flat rate user APHIS offices should rarely need to regarding those services after a user fee fee in § 130.20(a) or the scaled user fee accept cash, as we also accept credit is established. Therefore, we had to in § 130.20(b)(1) which is based on the cards and checks in payment for user estimate the costs and the demand for number of tests or vaccinations required fees. The regulations explain that a list those services without historical data for for the animals listed on the export of the APHIS offices which accept each import- and export-related services. health certificate. This question was form of payment is available from Since we established these user fees, raised because all cattle, including APHIS headquarters in Riverdale, MD. our accounting system has tracked the slaughter cattle, are required to be tested The slight inconvenience to APHIS costs associated with user fees by for tuberculosis and brucellosis prior to created by accepting change is more imports and exports and for veterinary exportation. than offset by convenience to the public. diagnostics. Therefore, we now have To fully recover our costs, the user Therefore, we are making no changes actual cost and usage data for our fees in § 130.20(b)(1) apply whenever based on this comment. calculations. This has also improved the tests or vaccinations are required. Costs Therefore, based on the rationale set accuracy of our estimates for other user associated with endorsing export health forth in the proposed rule and in this fees. The original user fees established certificates which cover individually document, we are adopting the on February 2, 1992, were primarily for identified animals requiring tests or provisions of the proposal as a final export-related services. On September 1, vaccinations are higher than those rule, with the changes discussed in this 1993, we established user fees for which cover animals as a group which document. veterinary diagnostics services. On 20428 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

January 21, 1994, we established fees on February 9, 1992, were animal import centers and (8) import additional user fees primarily for drastically underestimated. In addition, and export hourly user fees. New user import-related services. Annual reviews the user fees established on January 21, fees are also being established for the of our user fees, based on our 1994, lacked the pay raises and exclusive use of additional space at the accounting data and experience with increased costs since they were Animal Import Center in Newburgh, providing these services, show that calculated in 1993 based on FY 92 costs. NY, for the endorsement of export while many of the estimates resulted in As a result of general cost increases health certificates for animal products, accurate user fees which require only and the inherent difficulty in setting and for pet birds quarantined in an moderate increases, some of our original new user fees, as discussed above, we APHIS owned or supervised quarantine user fees were significantly lower than did not collect enough money in user facility. In addition, we are changing the cost of providing the services. fees during FYs 1992 through 1995 to our method of charging hourly user fees Because these user fees were set too recover the costs of providing the when import- and export-related low, we have been running a deficit to services for which we charged user fees. services are performed outside of an provide the requested services. In fact, for each of those fiscal years, we employee’s normal tour of duty. Therefore, these user fees must be incurred a deficit of over $1 million. As Overall Impact of Changes increased to recover the costs of our user fees are intended to recover full providing requested services. cost, it is apparent that our user fees are Table 1 summarizes the estimated Specifically, we reviewed our records too low and must be raised to reflect changes in user fees that are necessary of user fees collected during fiscal years changes in actual costs and demand for to fully recover costs. This rule will (FYs) 1992 through 1995. The original services. result in a net increase in agency user fees established on February 9, collections of about $3 million, from $8 1992, are based on FY 90 costs. In the Changes to the Regulations million to $11 million. Approximately 5 years since then, there has been an Consequently, this rule updates $1.1 million of this increase represents overall increase in all costs of providing certain user fees related to import- and new user fees and $2 million is services, due to inflation and changes in export-related inspection and attributed to changes in current general economic conditions. certification, animal quarantine, and collections (revised and premium user Additionally, we underestimated veterinary diagnostics. This rule fees). These changes will shift the personnel costs when we set the user changes user fees that are currently burden from taxpayers to the importers fees. For example, in addition to charged for eight broad categories of and exporters who use these APHIS anticipated Federal pay increases (4.2 services. These services include the services. Additional tables providing percent in FY 92 and 3.7 percent in FY inspection, certification, or details of the user fee changes 93), in FY 94, there were locality pay authorization of: (1) live animal imports summarized in Table 1 are available for and cost of living increases of 3.09 to 8 at animal import centers; (2) live animal inspection at USDA, room 1141, South percent for employees stationed in imports at the Mexican border; (3) live Building, 14th Street and Independence different parts of the United States. We animal imports at the Canadian border, Avenue SW., Washington, DC, between also underestimated support costs, such airports, and ocean ports; (4) other 8 a.m. and 4:30 p.m., Monday through as clerical support, office rent, import and inspection services for the Friday, except holidays. Persons telephone, etc., in setting our current importation of live animals and animal wishing to inspect these detailed tables user fees. As a result, the costs of products; (5) veterinary diagnostics; (6) are requested to call ahead on (202) endorsing export health certificates, for the endorsement of export health 690–2817 to facilitate entry into the example, for which we established user certificates; (7) facility rentals at APHIS’ reading room.

TABLE 1.ÐSUMMARY OF ESTIMATED COLLECTIONS FOR IMPORT- AND EXPORT-RELATED SERVICES 1

Category Current Projected Change

New User Fees: Exclusive use of space at the Newburgh, NY Animal Import Center (9 CFR § 130.3) ...... $157,109 $157,109 Quarantine for pet birds (9 CFR § 130.10) ...... 265,245 265,245 Endorsement of export health certificates for animal products (9 CFR § 130.20) ...... 645,000 645,000

Total New User Fees ...... 1,067,354 1,067,354

Revised User Fees: Animal import centers (9 CFR § 130.2) ...... 2,168,468 2,461,334 292,865 APHIS animal import centers and hourly user fees (9 CFR §§ 130.3, 130.5, 130.9, 130.10, and 130.21) ...... 648,318 740,942 92,624 Imports at the Mexican border (9 CFR § 130.6) ...... 1,047,184 1,214,532 167,349 Imports at other ports of entry (9 CFR § 130.7) ...... 817,862 834,251 16,388 Import and inspection services (9 CFR § 130.8) ...... 944,087 970,072 25,986 Veterinary diagnostics (9 CFR § 130.16) ...... 450,118 429,076 (21,042) Endorsements of export health certificates (9 CFR § 130.20) ...... 798,260 2,195,111 1,396,851

Total Revised User Fees ...... 6,874,296 8,845,316 1,971,020

Premium User Fees (9 CFR §§ 130.5, 130.9, and 130.21) ...... 990,900 1,033,319 42,419

Total Revised Collections (Revised and Premium User Fees) ...... 7,865,196 9,878,635 2,013,439 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20429

TABLE 1.ÐSUMMARY OF ESTIMATED COLLECTIONS FOR IMPORT- AND EXPORT-RELATED SERVICES 1ÐContinued

Category Current Projected Change

Projected Total (New and Revised) ...... 7,865,196 10,945,989 3,080,793 1 Projections based on average annual volume estimates provided by the Financial Systems and Services Branch, Budget and Accounting Di- vision, Management and Budget, APHIS, USDA. NOTE: Column and row totals may not be exact due to rounding.

Summary of Comments, Assessment of slaughter animals, can be considered the user fee for the endorsement of Issues, and Resulting Changes small. While there is a wide range in the export health certificates for poultry and Due to the nature of this rule, most of sizes of entities who use our import- eggs is $21.00 (an increase of $19.00 the comments we received on the and export-related services, our from the original $2.00 user fee). The proposed rule focused on economic experience shows that as many as 50 user fee is less than 0.5 percent of the issues; several took exception to the percent may be considered large. estimated value of a shipment. To the extent that changes in user fees results of our economic analysis. The Therefore, while the increase in the user will impact operational costs or profits, comments raised concerns about fee is significant, the user fee is still any entity who utilizes APHIS’s services potential inequitable charges for small relative to the total value of the and is subject to user fees will be shipments. Table 2: Projected User Fee permanent and temporary privately impacted by this rule. The degree of the owned import quarantine facilities impact depends on the entity’s market Collections for the Endorsement of (§ 130.4 and § 130.5, respectively), power, or the ability to which cost Export Health Certificates (9 CFR 4 impacts on small entities, increases in increases can be either absorbed or § 130.20). user fees for the endorsement of export passed on to its buyers. Without health certificates, and impact on information on either profit margins and international trade. As a result of the operational expenses of the affected issues raised about inequitable charges, entities,2 or the supply responsiveness we combined the user fee regulations for of the affected industry,3 the impacts permanent and temporary facilities cannot be precisely predicted. However, under § 130.5 and removed § 130.4 from given the amount of the user fee changes the regulations. This will result in lower (and new user fees) relative to the value charges for economies of scale where of the imported or exported animals and there are multiple animals in a single animal products, some conclusions on shipment than those previously overall impacts to domestic and assessed under § 130.4 for permanent international commerce are drawn facilities. Assessments of the other below. issues raised are provided in the more detailed economic analysis below. Exports Impact on Small Entities Many comments addressed the impact these user fee increases will have on User fee revisions included in this exports. Most of these comments rule could affect some importers and objected to increases in the user fees for exporters of live animals, importers and the endorsement of export health exporters of animal byproducts, and certificates. Many of the comments we firms that seek APHIS’ veterinary received focused on the impact on diagnostic services. We received entities in the poultry and horse comments from importers and industries. exporters, many of whom are small Most of the commenters stated that entities. The Small Business the increase in the user fee for the Administration’s definition of a small endorsement of export health entity involved in these activities is one certificates for poultry and hatching whose total sales is less than $5 million eggs is too high. As explained earlier, annually. The number of entities who these user fees were based on FY 90 are importing and exporting live costs and low estimates of personnel animals and would qualify as a small costs. The user fees have not been entity under this definition cannot be increased in 5 years, and the original determined. However, except possibly user fees were drastically for those entities who deal exclusively underestimated. in more valuable animals, such as Breeding chicks and hatching eggs, breeding or registered animals, data while worth only fractions of a dollar from the 1995 Bureau of the Census individually, are generally exported in indicates that the majority of batches of up to hundreds of thousands; agricultural entities who deal in less the total value of these shipments could valuable animals, such as feeding or exceed $10,000. As shown in Table 2,

2 Information on profits from sales by small an entity’s production due to changes in operating Management and Budget, APHIS, USDA. Note: entities is proprietary in nature and was not costs. Column and row totals may not be exact due to available to APHIS for this analysis. 4 Projections based on average annual volume rounding. 3 The measurement of supply responsiveness estimates provided by the Financial Systems and would provide information on the likely impact on Services Branch, Budget and Accounting Division, 20430 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

User fee Collections Category Annual vol- ume Current New Change Current Projected

Per Certificate User Fees: Slaughter Animals to Canada or Mexico ...... 4,811 $10.00 $24.50 $14.50 $48,110 $117,870 Non-Slaughter Horses to Canada ...... 27,275 10.00 26.25 16.25 272,750 715,969 Poultry ...... 7,037 2.00 21.00 19.00 14,074 147,777 Hatching Eggs ...... 7,036 2.00 21.00 19.00 14,072 147,756 Other: Endorsements ...... 20,748 4.00 16.50 12.50 82,992 342,342 Per Head User Fees: Export Animal, 1±2 tests ...... 2,656 38.00 52.50 14.50 100,928 139,440 Each additional animal ...... 35,235 1.00 3.00 2.00 35,235 105,705 Export Animal, 3±6 tests ...... 3,950 41.50 64.75 23.25 163,925 255,763 Each additional animal ...... 34,905 1.25 5.00 3.754 3,631 174,525 Export Animal, 7 + tests ...... 421 44.00 75.75 31.75 18,524 31,891 Each additional animal ...... 2,679 1.50 6.00 4.50 4,019 16,074

Projected totals ...... 798,260 2,195,111

Since many of the comments related However, the costs are all on a certificate). The new user fees raise to the proposed increases in user fees administrative support. this average to $15.50 per animal for the endorsement of export health In addition, Agency overhead and ($75.75 for the first animal and $6.00 for certificates concerned poultry and egg departmental charges are added at $2.74 additional animals on a certificate), or a exports, we will show how this user fee and $1.08, respectively. The total cost is difference of $8.21 per animal. is calculated by using, as an example, $20.79, which is rounded up to the Certificates that are issued in this the endorsement of an export health nearest quarter to $21.00. When category are endorsed largely for the certificate for poultry. The calculation factoring in all of the costs involved in export of breeding or registered animals for the user fees for endorsing other endorsing an export health certificates, whose worth could be over $2,000 per export health certificates varies by the the user fees are reasonable. When animal. It is therefore expected that amount of direct labor hours required to comparing the proposed user fees to the these user fee increases will not have a previous user fees, which were based on provide the endorsement services. The significant impact on exporters, given average amount of time it takes to FY 90 costs and were too low, they that the amount of the increases is small endorse an export health certificate for appear high. However, we could not in comparison to the value of the poultry is 18 minutes. The direct labor continue to provide these services if we time includes phone time, paperwork did not increase the user fees to fully exported animals. review time, and endorsement time. recover our costs. Impact on International Trade Using the average direct labor cost per The value of a non-slaughter horse hour of $34.06, the direct labor cost for could range between $1,000 and Several commenters suggested that 18 minutes is $10.08. As described $50,000 and more. As shown in Table the increases in user fees could result in earlier, the following costs are the pro 2, the user fee for non-slaughter horses a decrease in international trade. Most rata share for endorsing export health to Canada is $26.25 (an increase of of the commenters specified trade in certificates. $16.25 from the original $10.00 user poultry, horses, and cattle to Canada. As Administrative support costs are fee). The user fee is less than 3 percent stated above, the increases in the user added at about $0.69 for each $1.00 of of the lower value for the non-slaughter fees are small in relation to the value of direct labor incurred, adding $6.89. horse. Therefore, the user fee is small the exported animals. While it follows Administrative support costs include relative to the total value of the horse. that some businesses will feel the local clerical and administrative Many commenters stated that the user impact of these increases, overall, the activities; indirect labor hours fees for the endorsement of export revised user fees are not expected to (supervision of personnel and time health certificates that require the impede commerce and international spent doing work that is not directly verification of tests are too high. As trade. connected with the service but which is shown in Table 2, for any animal, nonetheless necessary, such as repairing endorsements requiring the verification Although some countries do not equipment); travel and transportation of 1 or 2 tests increased by $14.50 per currently charge for import- and export- for personnel; supplies, equipment, and endorsement (from $38.00 to $52.50). related services, user fees for these other necessary items; training; general The largest increase of $31.75 per services are being adopted by more and supplies for offices, washrooms, endorsement (from $44.00 to $75.75) more countries. In fact, as of May 8, cleaning, etc.; contractual services (such relates to the endorsement of export 1995, Canada charges user fees for as guard service, maintenance, trash health certificates that require certain import- and export-related pickup, etc.); grounds maintenance; verification of 7 or more tests required services (see May 3, 1995, Canada chemicals and glassware; and utilities by the importing country. Of the 80,277 Gazette Part II, Vol. 129, No. 9, SOR/ (such as water, telephone, electricity, certificates endorsed in FY 94, only 421 DORS/95–198). In addition, further natural and propane gas, heating and certificates (or 0.5 percent) were issued supports have been eliminated. diesel oil). Some administrative support that required the verification of 7 or Therefore, we do not believe that U.S. items may be contractual or not, more tests. These certificates covered exporters are at a competitive depending on local circumstances. For 3,092 animals for an average charge of disadvantage compared with exporters example, trash pickup may be provided $7.29 per animal ($44.00 for the first in other countries. as a contractual service or a utility. animal and $1.50 for additional animals Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20431

Imports related services provided outside of an average premium user fee (6 out of 7 While most comments addressed employee’s normal tour of duty. Now, days at $65.00 plus 1 out of 7 days at exports, several objected to the increases users of these services, previously $74.00, the sum divided by 7 days in a in user fees for import-related services. charged the hourly user fee plus week). Our historical accounting data For import-related services for animals reimbursable overtime, will be charged for reimbursable overtime confirms this at all ports of entry, including Canadian the single new premium user fee. This method resulted in a reasonable split and Mexican borders, and animal premium user fee reflects both changes between Sunday and other overtime. These calculations show an estimated import centers, increases from the in costs and a change in the structure of overall increase of approximately previous user fees range from $0.25 to the user fee. The intent of this change is to avoid any confusion and the $40,000. While this is a modest increase $21.00. Except for the increases of perception of double charging for over the previous charges for services $12.75 to $21.00 for import services for services. The impact is to lower the performed outside employees’ normal equines at animal import centers, the average hourly user fees for import- and tour of duty, this is a decrease of other increases are all $5.50 or less, export-related services performed approximately $7,000 from the increases while the majority of these user fee outside of an employee’s normal tour of which would have been incurred under increases are less than $1.00. These duty. the old method. Therefore, entities changes represent modest increases and The $1 million projected collection should realize a long-term economic are a small fraction of the typical cost for this category represents a modest benefit from the lower increase. of purchasing and importing a breeding increase, approximately $40,000, to Based on the earlier discussion of the grade animal into the United States, APHIS collections. All of the projected regular time, which is included in the which ranges between $1,500 and calculations are not considered new estimates for reimbursable overtime, it $5,000 per head. Purchase and import user fees or new collections for APHIS follows that the premium user fee, costs for feeder and slaughter animals for the following reasons. In FY 95, we which was estimated for the same are often significantly lower per animal, collected $990,900 for import- and number of hours as the reimbursable but can easily exceed $1,500 per export-related services that involved a overtime plus hourly user fee, is an shipment depending on the number and combination of both hourly user fees overestimate of charges, as some of type of animals in the shipment. and reimbursable overtime. Of this, these hours will remain at $56.00 per The increase in user fees for other $398,425 was collected at the $50.00 hour. Therefore, we anticipate that the import services related to animal hourly user fee, and $592,475 was increase will be lower than our estimate products and byproducts range from collected at the reimbursable overtime shows. $0.50 for an application for a permit rates specified in 9 CFR 97 (for example, Summary renewal, to $10.25 for the inspection of $37.84 for holidays and overtime other an approved establishment. Because the than on Sundays). As explained below, In summary, while it follows that, if user fees charged in this category of a portion of the $398,425 was for the user fees cannot be passed on, the service are based on either a per load, services that began during the regular profit margins of some entities may inspection, application, or certification tour of duty and for which the hourly decline as user fees for endorsing export basis, the amount of increase is small in user fee will still be charged. health certificates are increased. comparison to the total value of the The hourly user fee charges However, the revised user fees represent animal products and byproducts for ($398,425) include the costs for services a small fraction of the value of the which the services are required. The which may have begun during the imported and exported animals and are majority of the increases are $1.50 or regular tour of duty but were completed not generally expected to reduce profits less. The $1.50 increase per permit for on overtime in addition to the hourly or impede exports. Indeed, the full the importation of germ plasm (from user fee charge for the services provided burden of the user fee increases are not $38.00 to $39.50), for instance, is not during overtime. Our accounting system likely to be borne entirely by the expected to cause a significant tracks user fees and reimbursable directly affected entities, as some of the economic burden to importers, given overtime separately. While we can cost increases are expected to be passed that the cost of importing semen could identify total hourly user fees and total on to the purchasers of these exported be over $100,000 per permit when reimbursable overtime hours performed animals. imported from countries with foot-and- in conjunction, we cannot specifically Alternatives mouth disease. Although the breakdown identify the hours of services which of entity sizes is unknown, as stated began on regular time and continued One alternative to this rule would be above, the revised user fees are not into overtime. to take no action. Another alternative to expected to have a significant impact on Next, reflecting the change in costs, this rule would be to establish a either large or small importers of live we estimated FY 95 collections using different user fee structure for small animals and animal products. the increased FY 96 hourly rate of businesses. We do not consider taking $56.00 plus reimbursable overtime. no action a reasonable alternative, Shift From Reimbursable Overtime to With this increase in the hourly user because we would not recover the full Premium User Fees fee, the projected FY 96 collections cost of providing import- and export- This rule also changes the way in would have been $1,040,298 ($447,823 related services and would continue to which hourly user fees for import- and at $56.00 per hour for hourly user fees incur annual deficits of over $1 million. export-related services conducted and $592,475 at the reimbursable We also do not consider establishing a outside an employee’s normal tour of overtime rates as described above). different user fee structure for small duty will be charged. While revising our Finally, we changed the method of businesses a viable option. As stated user fees, we took many factors into charging user fees for hourly services above, Congress does not appropriate account, including public confusion performed during overtime to a single funds to APHIS for these services. about the way we charged for services premium user fee. To calculate the Therefore, APHIS cannot exempt certain provided during overtime. As a result, projected FY 96 collections for the classes of users, such as small we changed the method of charging premium user fee ($1,033,319), we used businesses, from the user fees, and hourly user fees for import- and export- the total FY 95 hours multiplied by the cannot charge user fees that recover less 20432 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations than the full cost of providing the (OMB), and there are no new address, are destined for one address, service. requirements. The assigned OMB and require one entry permit or Another alternative to this rule would control numbers are 0579–0015, 0579– authorization. be to spread the increased costs over all 0040, 0579–0055, and 0579–0094. * * * * * of the user fees, so no single user fee List of Subjects in 9 CFR Part 130 Pet birds. Birds, except ratites, which would increase significantly. Our user are imported for the personal pleasure fees are calculated to recover the costs Animals, Birds, Diagnostic reagents, of their individual owners and are not of the service for which each user fee is Exports, Imports, Poultry, Quarantine, intended for resale. charged. To spread the increases would Reporting and recordkeeping * * * * * mean that some entities would requirements, Tests. Test. A single analysis performed on subsidize others. The intent of these Accordingly, 9 CFR part 130 is a single specimen from an animal, user fees is to shift the burden of the amended as follows: cost of these services from the general animal product, commercial product, or taxpayer to the entity receiving the PART 130ÐUSER FEES animal feed. service. Therefore, APHIS cannot spread United States. The several States of 1. The authority citation for part 130 the United States, the District of the increases evenly over all of the user is revised to read as follows: fees. Columbia, Guam, the Commonwealth of Authority: 5 U.S.C. 5542; 7 U.S.C. 1622; 19 the Northern Mariana Islands, the Executive Order 12778 U.S.C. 1306; 21 U.S.C. 102–105, 111, 114, Commonwealth of Puerto Rico, the This rule has been reviewed under 114a, 134a, 134b, 134c, 134d, 134f, 135, 136, Virgin Islands of the United States, and Executive Order 12778, Civil Justice and 136a; 7 CFR 2.22, 2.80, and 371.2(d). all other territories and possessions of Reform. This rule (1) Preempts all State 2. In § 130.1, the definitions for the United States. and local laws and regulations that are Germplasm and Pet bird are removed; * * * * * inconsistent with this rule; (2) has no the definition for Load is revised; and 3. Section 130.2 is amended as retroactive effect; and (3) does not definitions for Germ plasm, Pet birds, follows: require administrative proceedings Test, and United States are added, in a. By revising the section heading and before parties may file suit in court alphabetical order, to read as follows: in paragraph (a), the table, to read as set challenging this rule. § 130.1 Definitions. forth below. b. By adding at the end of the section Paperwork Reduction Act * * * * * the OMB control number as set forth Germ plasm. Semen, embryos, or ova. In accordance with the Paperwork below. Reduction Act of 1995 (44 U.S.C. 3501 * * * * * et seq.), the information collection or Load. Those animals, birds, or animal § 130.2 User fees for individual animals recordkeeping requirements included in germ plasm, presented for importation and certain birds quarantined in APHIS this rule have been approved by the into the United States in a single Animal Import Centers. Office of Management and Budget shipment, that originate from one (a) * * *

Animal or bird Daily

Birds (including zoo birds, but excluding ratites and pet birds imported in accordance with part 92 of this subchapter): 0±250 grams ...... $1.00 251±1,000 grams ...... 3.25 Over 1,000 grams, and any bird in nonstandard housing or receiving nonstandard care and handling ...... 7.50 Ratites: Chicks (less than 3 months of age) ...... 5.75 Juveniles (3 months through 10 months of age) ...... 8.00 Adults (11 months of age and older) ...... 16.25 Poultry (including zoo poultry): Doves, pigeons, quail ...... 2.00 Chickens, ducks, grouse, guinea fowl, partridge, pea fowl, pheasants ...... 3.50 Game cocks, geese, swans, turkeys, any poultry housed in nonstandard housing or receiving nonstandard care and handling .... 8.25 Equines (including zoo equines, but excluding miniature horses): 1st through 3rd day ...... 149.50 4th through 7th day ...... 108.25 8th and later days ...... 91.75 Miniature horses ...... 40.25 Zoo animals (except equines, birds, and poultry) ...... 32.25 Domestic animals: Camels, cattle, bison, buffalo ...... 56.50 All others ...... 15.00

* * * * * a. In paragraph (a)(1), by revising the c. By revising the OMB control (Approved by the Office of Management and table to read as set forth below. numbers at the end of the section as set Budget under control number 0579–0094.) b. By revising paragraph (c)(3) to read forth below. 4. Section 130.3 is amended as as set forth below. § 130.3 User fees for exclusive use of follows: space at APHIS Animal Import Centers. (a)(1) * * * Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20433

Space avail- Monthly user Animal import center able fee

Miami, FL: South Wing ...... 6,952 sq. ft. .... $30,285.00 (645.9 sq. m.) North Wing ...... 6,545 sq. ft. .... 29,377.00 (608.1 sq. m.) Newburgh, NY: Space A ...... 5,904 sq. ft. .... 47,609.00 (548.5 sq. m.) Space B ...... 9,742 sq. ft. .... 78,555.00 (905 sq. m.)

* * * * * § 130.5 User fees for services at privately § 130.6 User fees for import or entry (c) * * * operated permanent and temporary import- services for live animals at land border (3) If the importer chooses to pay for quarantine facilities. ports along the United States-Mexico additional services on an hourly basis, * * * * * border. the user fees for each employee required (c) If a service must be conducted on (a) * * * to perform the service are: a Sunday or holiday or at any other time (i) $56.00 per hour; outside the normal tour of duty of the User fee (ii) $14.00 per quarter-hour; employee, then the premium user fee Type of live animal (iii) With a minimum of $16.50. rate, as provided for in 9 CFR part 97, (per head) * * * * * in lieu of the user fee listed in paragraph (Approved by the Office of Management and (b) of this section, must be paid for each Feeder ...... $1.75 Budget under control numbers 0579–0040 employee required to perform each Slaughter ...... 2.50 and 0579–0094.) service: Horses, other than slaughter ...... 29.25 § 130.4 [Removed and reserved] (1) $65.00 per hour for weekdays and In-bond or in transit ...... 3.75 holidays; Any ruminants not covered above .... 6.00 5. Section 130.4 is removed and (2) $16.25 per quarter-hour for reserved. weekdays and holidays; * * * * * 6. Section 130.5 is amended as (3) $74.00 per hour for Sundays; 8. Section 130.7 is amended as follows: (4) $18.50 per quarter-hour for follows: a. The section heading, is revised to Sundays; read as set forth below. (5) With a minimum of $16.50. a. In paragraph (a), by removing b. In paragraph (a), before the word ‘‘$16.00’’ and adding ‘‘$16.50’’ in its (Approved by the Office of Management and ‘‘temporary’’, by adding the words place. ‘‘permanent or’’. Budget under control number 0579–0094.) b. In paragraph (a), by removing the c. In paragraph (b)(1), by removing 7. Section 130.6 is amended as phrase ‘‘live animals imported into or ‘‘$50’’ and adding ‘‘$56’’ in its place. follows: d. In paragraph (b)(2), by removing a. In paragraph (a), by removing entering the United States’’ and adding ‘‘$12.50’’ and adding ‘‘$14.00’’ in its ‘‘$16.00’’ and adding ‘‘$16.50’’ in its ‘‘live animals presented for importation place. place. into or entry into the United States’’ in e. In paragraph (b)(3), by removing b. In paragraph (a), by removing the its place. ‘‘$16.00’’ and adding ‘‘$16.50’’ in its phrase ‘‘live animals imported into or c. In paragraph (a), by revising the place. entering the United States’’ and adding table to read as set forth below: f. By adding a new paragraph (c) to ‘‘live animals presented for importation read as set forth below. into or entry into the United States’’ in § 130.7 User fees for import or entry services for live animals at all other ports g. By adding at the end of the section its place. of entry. the OMB control number as set forth c. In paragraph (a), by revising the below. table to read as set forth below. (a) * * *

Type of live animal User fee

Animals being imported into the United States: Horses, other than slaughter and in transit ...... $19.00 per head. Breeding animals (Grade animals, except horses): Swine ...... 0.50 per head. Sheep and goats ...... 0.50 per head. All others ...... 2.25 per head. Registered animals, all types ...... 4.00 per head. Feeder animals: Cattle (not including calves) ...... 1.00 per head. Swine ...... 0.25 per head. Sheep and calves ...... 0.25 per head. Slaughter animals, all types ...... 16.50 per load. Poultry (including eggs), imported for any purpose ...... 33.00 per load. Animals transiting1 the United States: Cattle ...... 1.00 per head. Swine ...... 0.25 per head. Sheep and goats ...... 0.25 per head. 20434 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

Type of live animal User fee

Horses and all other animals ...... 4.50 per head. 1 The user fee in this section will be charged for intransit authorizations at the port where the authorization services are performed. For addi- tional services provided by APHIS, at any port, the applicable hourly user fee will apply. * * * * * 9. In § 130.8, paragraph (a) is amended by revising the table to read as follows: § 130.8 User fees for other services. (a) * **

Service User fee

Inspection for approval of slaughter establishment: Initial approval ...... $246.50 for all inspections required during the year. Renewal ...... 213.50 for all inspections required during the year. Pet birds, except pet birds of U.S. origin entering the United States from Canada: Which have been out of United States more than 60 days ...... 169.75 per lot. Which have been out of United States 60 days or less ...... 71.25 per lot. Germ Plasm Being imported: 1 Semen ...... 39.50 per load. Embryo ...... 39.50 per load. Germ Plasm Being exported: 2 Semen ...... 33.50 per certificate. Embryo (up to 5 donor pairs) ...... 54.75 per certificate. Embryo (each additional group of donor pairs, up to 5 pairs per group, on the same certificate) ...... 24.75 per group of donor pairs. Processing VS form 16±3, ``Application for Permit to Import Controlled Material/Import or Transport Organisms or Vectors'': For permit to import fetal bovine serum when facility inspection is required ...... 208.50 per application. For all other permits ...... 27.50 per application. Amended application ...... 11.50 per amended applica- tion. Application renewal ...... 15.00 per application. Fetal Bovine Serum sample verification ...... 666.00 per verification. Import compliance assistance ...... 24.00 per release. Release from export agricultural hold ...... 24.00 per release. Inspection of approved establishments, warehouses, and facilities under 9 CFR parts 94 through 96: Approval (Compliance Agreement) ...... 262.75 for first year of 3- year approval (for all in- spections required during the year). Renewed approval ...... 152.00 per year for second and third years of 3-year approval (for all inspec- tions required during the year). 1 For inspection of empty containers being imported into the United States, the applicable hourly user fee would apply, unless a user fee has been assessed under 7 CFR part 354.3. 2 This user fee includes a single inspection and resealing of the container at the APHIS employee's regular tour of duty station or at a limited port. For each subsequent inspection and resealing required, the applicable hourly user fee would apply.

* * * * * (b) If a service must be conducted on (5) With a minimum of $16.50. 10. Section 130.9 is amended as a Sunday or holiday or at any other time * * * * * follows: outside the normal tour of duty of the 11. In § 130.50(b)(1), footnote 8 and a. In paragraph (a), introductory text, employee, then the premium user fee the reference to it are redesignated as by removing ‘‘$50’’ and adding ‘‘$56’’ in rate, as provided for in 9 CFR part 97, footnote 9, and in § 130.20(a), footnote its place, and by removing ‘‘$12.50’’ and in lieu of the user fee listed in paragraph 7 and the reference to it, are adding ‘‘$14.00’’ in its place. (a) of this section, must be paid for each redesignated as footnote 8. employee required to perform each 12. A new § 130.10 is added to read b. In paragraph (a), introductory text, as follows: by removing ‘‘$16.00’’ and adding service: ‘‘$16.50, for each employee required to (1) $65.00 per hour for weekdays and § 130.10 User fees for pet birds perform the service’’ in its place. holidays; quarantined at APHIS-owned or supervised c. By revising paragraph (b) to read as (2) $16.25 per quarter-hour for quarantine facilities. set forth below. weekdays and holidays; (a) The person for whom the service is provided and the person requesting § 130.9 User fees for miscellaneous import (3) $74.00 per hour for Sundays; the service are jointly and severally or entry services. (4) $18.50 per quarter-hour for liable for the following user fees, which * * * * * Sundays; include standard care, feed, and Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20435 handling, and which must be paid for respiratory and reproductive syndrome. For 15. Section 130.16 is amended as each animal or bird quarantined in an example, for CF tests for eastern equine follows: Animal Import Center 7 or other APHIS encephalomyelitis (EEE), western equine a. In paragraph (a), in the table, by owned or supervised quarantine facility: encephalomyelitis (WEE), and Venezuelan equine encephalomyelitis (VEE) and for VN revising the entry for ‘‘Virus isolation’’ tests for the New Jersey and Indiana serovars and by adding a new test in alphabetical Daily of vesicular stomatitis (VS), the costs are as order to read as set forth below. Number of birds is isolette user fee follows: EEE—$9.00, WEE and VEE—$2.00 b. By adding a new paragraph (c) to each; VS New Jersey—$7.50, VS Indiana— read as set forth below. 1 ...... $6.50 $1.50. The total of these five assays is $22.00 c. By adding at the end of the section 2 ...... 7.75 for each specimen submitted. the OMB control numbers as set forth 3 ...... 9.25 * * * * * below. 4 ...... 10.75 (c) The user fees in this section do not 5 ...... 12.00 § 130.16 User fees for reference include any costs that may be incurred assistance testing. due to special mail handling, such as (b) Based on the information provided (a) * * * to APHIS personnel, APHIS personnel express, overnight, or foreign mailing. If a test requires special mail handling, all at the Animal Import Center or other Test User APHIS owned or supervised quarantine costs incurred must be paid by the user fee facility will determine the appropriate as specified in paragraph (a) of this number of birds that should be housed section, in addition to the user fee listed in paragraph (a) of this section. ***** per isolette. (3) Other tests: (c) If the person or persons for whom (Approved by the Office of Management and the service is provided or the person or Budget under control numbers 0579–0055 ***** and 0579–0094.) persons requesting the service request Virus isolation (except Newcastle additional services on an hourly basis, 14. Section 130.15 is amended as disease virus) ...... 29.75 the user fees for each employee required follows: Virus isolation for Newcastle disease to perform the service are: a. In paragraph (a), by revising the text virus ...... 14.00 (1) $56.00 per hour; of footnote 1 to the table to read as set (2) $14.00 per quarter-hour; forth below. ***** (3) With a minimum of $16.50. b. By adding a new paragraph (c) to read as set forth below. * * * * * (Approved by the Office of Management and (c) The user fees in this section do not Budget under control number 0579–0094.) c. By adding at the end of the section the OMB control numbers as set forth include any costs that may be incurred 13. Section 130.14 is amended as below. due to special mail handling, such as follows: express, overnight, or foreign mailing. If a. By revising the section heading to § 130.15 User fees for tests performed at a test requires special mail handling, all read as set forth below. FADDL. costs incurred must be paid by the user b. In paragraph (a), after the term (a) * * * as specified in paragraph (a) of this ‘‘NVSL’’, by adding the phrase ‘‘or at 1 Tests with multiple and subsequent section in addition to the user fee listed authorized import sites (excluding antigens can be set up for a fraction of the in paragraph (a) of this section. FADDL)’’. cost of multiple single-antigen tests. Tests (Approved by the Office of Management and c. In paragraph (a), by revising the text subsequent to the first antigen used for these Budget under control numbers 0579–0055 of footnote 1 to the table to read as set assays are reduced down to 20% of the cost and 0579–0094.) forth below. of using the first antigen. The following assays are examples of these cost savings: 16. Section 130.17 is amended as d. By adding a new paragraph (c) to follows: read as set forth below. complement fixation (CF) tests for foot-and- a. In paragraph (a), in the table, in the e. By adding at the end of the section mouth disease or vesicular stomatitis; virus neutralization (VN) tests for foot-and-mouth entry for Johnin: OT, under the Unit the OMB control numbers as set forth disease or vesicular stomatitis. For example, (ml.) column, by removing ‘‘10’’ and below. for CF and VN tests for foot-and-mouth adding ‘‘2’’ in its place. disease A, O, and C antigens, the costs are § 130.14 User fees for tests performed by b. By adding a new paragraph (c) to as follows: CF A antigen—$30.50, O the NVSL or at authorized import sites antigen—$6.25, and C antigen—$6.25; VN A read as set forth below. (excluding FADDL). antigen—$22.00, O antigen—$4.50, and C c. By adding at the end of the section (a) * * * antigen—$4.50. The total of these six assays the OMB control number as set forth 1 Tests with multiple and subsequent is $74.00 for each specimen tested for these below. agents. antigens can be set up for a fraction of the § 130.17 User fees for diagnostic reagents, cost of multiple single-antigen tests. Tests * * * * * slide sets, and tissue sets. subsequent to the first antigen used for these assays are reduced down to 20% of the cost (c) The user fees in this section do not * * * * * of using the first antigen. The following are include any costs that may be incurred (c) The user fees in this section do not examples of these cost savings: complement due to special mail handling, such as include any costs that may be incurred fixation (CF) tests for equine express, overnight, or foreign mailing. If due to special mail handling, such as encephalomyelitis or vesicular stomatitis; a test requires special mail handling, all express, overnight, or foreign mailing. If hemagglutination inhibition (HI) for equine costs incurred must be paid by the user a test requires special mail handling, all encephalomyelitis or equine influenza; virus as specified in paragraph (a) of this costs incurred must be paid by the user neutralization (VN) tests for porcine section in addition to the user fee listed as specified in paragraph (a) of this in paragraph (a) of this section. section in addition to the user fee listed 7 APHIS Animal Import Centers are located in Honolulu, HI, Miami, FL, and Newburgh, NY. The (Approved by the Office of Management and in paragraph (a) of this section. addresses of these facilities are published in part 92 Budget under control numbers 0579–0055 (Approved by the Office of Management and of this chapter. and 0579–0094.) Budget under control number 0579–0094.) 20436 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

17. Section 130.18 is amended as User § 130.21 User fees for inspection and follows: Certificate categories fee supervision services provided within the a. By redesignating the existing text as United States for export animals, birds, and paragraph (a). Nonslaughter horses to Canada ...... 26.25 animal products and byproducts. b. By adding a new paragraph (b) to Poultry ...... 21.00 (a) * * * read as set forth below. Hatching eggs ...... 21.00 (1) Inspecting an export isolation c. By adding at the end of the section Animal products ...... 21.50 facility and the animals in it; the OMB control number as set forth Other endorsements or certifications 16.50 (2) Supervising animal or bird rest below. periods prior to export; (b)(1) All user fees in this paragraph (3) Supervising loading or unloading § 130.18 User fees for sterilization by are for services provided for the of animals or birds for export shipment; gamma radiation. endorsement of export health (4) Inspecting means of conveyance (a) * * * certificates which require the used to export animals or birds; (b) The user fees in this section do not verification of tests or vaccinations. The (5) Conducting inspections under include any costs that may be incurred person for whom the service is provided authority of part 156 of this chapter; due to special mail handling, such as and the person requesting the service (6) Approving or inspecting an express, overnight, or foreign mailing. If are jointly and severally liable for embryo or semen collection center or a test requires special mail handling, all paying the following user fees for each the animals in it; and costs incurred must be paid by the user export health certificate endorsed for (7) Other export or embarkation as specified in paragraph (a) of this animals and birds, depending on the services not specified elsewhere in this section in addition to the user fee listed number of animals covered by the part. in paragraph (a) of this section. certificate and the number of tests * * * * * (Approved by the Office of Management and required. (c) If a service must be conducted on Budget under control number 0579–0094.) a Sunday or holiday or at any other time 18. Section 130.20 is amended as Number of tests/vac- Number of animals or User fee outside the normal tour of duty of the follows: cinations birds on certificate employee, then the premium user fee a. By revising paragraph (a) to read as rate, as provided for in 9 CFR part 97, set forth below. 1±2 ...... First animal ...... $52.50 in lieu of the user fee listed in paragraph b. By revising (b)(1) to read as set Each additional ani- 3.00 (b) of this section, must be paid for each forth below. mal. employee required to perform each c. In paragraph (c), by removing the 3±6 ...... First animal ...... 64.75 service: words ‘‘it is endorsed’’ and by adding Each additional ani- 5.00 (1) $65.00 per hour for weekdays and the phrase ‘‘the export health certificate mal. 7 or more First animal ...... 75.75 holidays; is prepared for endorsement completely (2) $16.25 per quarter-hour for at the site of the inspection’’ in their Each additional ani- 6.00 mal. weekdays and holidays; place. (3) $74.00 per hour for Sundays; d. In paragraph (c), by removing the (4) $18.50 per quarter-hour for reference ‘‘§ 130.7’’ and adding * * * * * Sundays; (d) The user fees prescribed in this ‘‘§ 130.21’’ in its place. (5) With a minimum of $16.50. e. By redesignating paragraph (d) as section will not apply if a requested paragraph (e) and adding a new export health certificate is not endorsed * * * * * paragraph (d) to read as set forth below. by a designated APHIS employee. The 20. Section 130.50 is amended as minimum user fee of $16.50 will be follows: § 130.20 User fees for endorsing export charged for each export health a. In paragraph (b)(1), newly health certificates. certificate that is requested and designated footnote 9 is revised to read (a) All user fees in this paragraph are reviewed, but not endorsed. as set forth below. for services provided for the b. In paragraph (b)(2), immediately * * * * * endorsement of export health before the semi-colon, by adding certificates which do not require the 19. Section 130.21 is amended as ‘‘drawn on a U.S. bank in U.S. dollars verification of tests or vaccinations. The follows: and made payable to the U.S. person for whom the service is provided a. By revising paragraphs (a)(1) Department of Agriculture or USDA’’. and the person requesting the service through (a)(5) to read as set forth below. c. In paragraph (b)(3), immediately are jointly and severally liable for b. By adding new paragraphs (a)(6) before the semi-colon, by adding paying the following user fees for each and (a)(7) to read as set forth below. ‘‘drawn on a U.S. bank in U.S. dollars export health certificate 8 endorsed for and made payable to the U.S. c. In paragraph (b) introductory text, the following types of animals, birds, or Department of Agriculture or USDA’’. before the colon, by adding the phrase animal products, regardless of the d. By revising paragraph (b)(4) to read ‘‘charged per each employee required to number of animals, birds, or animal as set forth below. perform the service’’. products covered by the certificate. d. In paragraph (b)(1), by removing § 130.50 Payment of user fees. ‘‘$50’’ and adding ‘‘$56’’ in its place. Certificate categories User * * * * * fee e. In paragraph (b)(2), by removing the (b) * * * figure ‘‘$12.50’’ and adding ‘‘$14.00’’ in (4) Credit cards (VISATM or Slaughter animals, of any type, mov- MasterCardTM) if payment is made at an ing to Canada or Mexico ...... $24.50 its place. f. In paragraph (b)(3), by removing the Animal Import Center or an APHIS office that is equipped to process credit 8 figure ‘‘$16.00’’ and adding ‘‘$16.50’’ in An export health certificate may need to be 9 endorsed for an animal being exported from the its place. cards. United States if the country to which the animal is being shipped requires one. APHIS endorses export g. By revising paragraph (c) to read as 9 A list of Animal Import Centers and APHIS health certificates as a service. set forth below. offices that accept cash or credit cards may be Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20437

* * * * * 2. Section § 514.20 (j)(2)(i) is stayed Pursuant to 5 U.S.C. 553(d)(3), good Done in Washington, DC, this 1st day from May 7, 1996 until October 4, 1996. cause is found for making this rule of May 1996. [FR Doc. 96–11351 Filed 5–6–96; 8:45 am] effective upon publication. As no notice Terry L. Medley, BILLING CODE 8230±01±M of proposed rulemaking is required, the Acting Administrator, Animal and Plant provisions of the Regulatory Flexibility Health Inspection Service. Act (5 U.S.C. 601, et seq.) do not apply. [FR Doc. 96–11211 Filed 5–6–96; 8:45 am] DEPARTMENT OF THE TREASURY There are no collections of information BILLING CODE 3410±34±P required by this rule, and, therefore, the Fiscal Service Paperwork Reduction Act does not apply. UNITED STATES INFORMATION 31 CFR Part 361 AGENCY List of Subjects in 31 CFR Part 361 Claims Pursuant to the Government 22 CFR Part 514 Losses in Shipment Act Claims, Common carriers, Fiscal Service, Freight, Government property. AGENCY: Exchange Visitor Program Bureau of the Public Debt, Dated: May 1, 1996. Fiscal Service, Department of the AGENCY: United States Information Treasury. Richard L. Gregg, Agency. Commissioner of the Public Debt. ACTION: Final rule. ACTION: Interim rule; partial stay. For the reasons set out in the SUMMARY: This final rule amends 31 SUMMARY: The Agency hereby stays the preamble, 31 CFR Part 361 is amended CFR Part 361 to reflect the change of effective date of § 514.20(j)(2)(i). This as follows: address which resulted when the regulation was promulgated pursuant to Bureau of the Public Debt’s Division of interim rule published on April 8, 1996 PART 361ÐCLAIMS PURSUANT TO Financial Management was moved from (61 FR 15373). This stay will delay by THE GOVERNMENT LOSSES IN Washington, D.C. to Parkersburg, West 150 days, the requirement that program SHIPMENT ACT Virginia. extension requests for professor or research scholar participants be EFFECTIVE DATE: May 7, 1996. 1. The authority citation for Part 361 received by the Agency ninety days FOR FURTHER INFORMATION CONTACT: Lisa continues to read as follows: Yoke Martin, Attorney-Adviser, Office prior to the expiration of the Authority: Sec. 6, 50 Stat. 480; 40 U.S.C. participant’s program. This stay will of the Chief Counsel, Bureau of the 728. permit a transition period for the Public Debt, Parkersburg, WV, at 304– requirement set forth in § 514.20(j)(2)(i). 480–5197, or via the Internet at 2. Paragraph (a) of § 361.7 is amended This stay does not apply to any other [email protected], or Kila Frank, by revising the first sentence to read as section of the interim rule published on CFO Coordinator, Division of Financial follows: April 8, 1996. Management, Bureau of the Public Debt, DATES: This stay is effective from May Parkersburg, WV, at 304–480–6201. A § 361.7 Report of loss, destruction or 7, 1996, until October 4, 1996. copy of this final rule has been made damage. FOR FURTHER INFORMATION CONTACT: available for downloading from the (a) If a consignor receives notice that Stanley S. Colvin, Assistant General Bureau of the Public Debt home page at loss or destruction of, or damage to, Counsel, United States Information the following address: http:// valuables shipped in accordance with www.ustreas.gov/treasury/bureaus/ Agency, 301 4th Street, SW., the Act has occurred, an immediate pubdebt/pubdebt.html Washington, DC 20547; telephone, (202) written report shall be forwarded by the 619–4979. SUPPLEMENTARY INFORMATION: consignor to the Secretary, to the List of Subjects in 22 CFR Part 514 Background attention of the Bureau of the Public Debt, Division of Financial Cultural Exchange Programs. The Bureau of the Public Debt has Management, Room 201, P. O. Box 1328, Dated: May 2, 1996. consolidated many of its functions and Parkersburg, WV 26106–1328. * ** Les Jin, offices, including its Division of * * * * * General Counsel. Financial Management, into its offices in Parkersburg, West Virginia. 3. Section 361.8 is amended by Accordingly, 22 CFR Part 514 is Accordingly, reports and claims amended as follows: revising the first sentence to read as pursuant to the Government Losses in follows: PART 514ÐEXCHANGE VISITOR Shipment Act should now be sent § 361.8 Claim for replacement. PROGRAM directly to the Division’s Parkersburg address. Claim for replacement shall be made 1. The authority citation for Part 514 in writing to the Secretary, to the continues to read as follows: Procedural Requirements attention of the Bureau of the Public This final rule is not a ‘‘significant Authority: 8 U.S.C. 1101(a)(15)(J), 1182, Debt, Division of Financial 1258; 22 U.S.C. 1431–1442, 2451–2460; regulatory action’’ pursuant to Executive Management, Room 210, P. O. Box 1328, Reorganization Plan No. 2 of 1977, 42 FR Order 12866. This final rule merely 62461, 3 CFR, 1977 Comp. p 200; E.O. 12048, reflects the change of address which Parkersburg, WV 26106–1328. * ** 43 FR 13361, 3 CFR, 1978 Comp. p 168, USIA resulted when the Bureau of the Public [FR Doc. 96–11282 Filed 5–6–96; 8:45 am] Delegation order No. 85–5 (50 FR 27393). Debt’s Division of Financial BILLING CODE 4810±39±P Management was moved from obtained from the Animal and Plant Health Inspection Service, Veterinary Services, National Washington, DC to Parkersburg, WV. Center for Import and Export, 4700 River Road Unit Accordingly, notice and public 38, Riverdale, MD 20737–1231. procedure thereon is unnecessary. 20438 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

DEPARTMENT OF VETERANS 38 CFR Part 3 with the adoption of this final rule, no AFFAIRS regulatory flexibility analysis is required RIN 2900±AH87 under the Regulatory Flexibility Act (5 38 CFR Part 2 Removal of References to ``Vicious U.S.C. 601–612). Even so, the Secretary Habits'' hereby certifies that this final rule will RIN 2900±AI08 not have a significant economic impact AGENCY: Department of Veterans Affairs. on a substantial number of small entities Delegations of Authority; ACTION: Final rule. as they are defined in the Regulatory Nonsubstantive Miscellaneous Flexibility Act. This amendment will SUMMARY: Changes Certain Department of directly affect VA beneficiaries but will Veterans Affairs (VA) regulations state not affect small businesses. AGENCY: Department of Veterans Affairs. that to be eligible for pension a veteran The catalog of Federal Domestic ACTION: Final rule. must be permanently and totally Assistance program number is 64.104. disabled from nonservice-connected SUMMARY: This document amends the disability not due to the veteran’s own List of Subjects in 38 CFR Part 3 delegation of authority regulations by willful misconduct or vicious habits. Administrative practice and removing redundant material and by The statute upon which these procedure, Claims, Disability benefits, removing other information not required regulations is based was changed in Health care, Pensions, Veterans, to be published in the Federal Register. 1978 to delete references to ‘‘vicious Vietnam. habits.’’ The purpose of this rule is to EFFECTIVE DATE: May 7, 1996. conform the regulations to the statute. Approved: April 19, 1996. FOR FURTHER INFORMATION CONTACT: Jesse Brown, EFFECTIVE DATE: This amendment is Dawn McGowan, Chief, Directives, effective May 7, 1996. Secretary of Veterans Affairs. Forms, Records Management, FOR FURTHER INFORMATION CONTACT: For the reasons set forth in the Headquarters Health Administration Paul Trowbridge, Consultant, Regulations preamble, 38 CFR part 3 is amended as Service (161A4), Department of Staff, Compensation and Pension follows: Veterans Affairs, 810 Vermont Avenue, Service, Veterans Benefits NW., Washington, DC 20420, (202) 565– Administration, 810 Vermont Avenue, PART 3ÐADJUDICATION 7444. (This is not a toll free number.) NW., Washington, DC 20420, telephone Subpart AÐPension, Compensation, SUPPLEMENTARY INFORMATION: This final (202) 273–7210. rule consists of nonsubstantive changes and Dependency and Indemnity SUPPLEMENTARY INFORMATION: Before Compensation and, therefore, is not subject to the 1978, the statute governing entitlement notice and comment and effective date to pension for nonservice-connected 1. The authority citation for part 3, provisions of 5 U.S.C. 553. disability (now 38 U.S.C. 1521(a)) subpart A continues to read as follows: The Secretary hereby certifies that the provided that VA pension was Authority: 38 U.S.C. 501(a), unless rule will not have a significant potentially payable to a veteran who otherwise noted. economic impact on a substantial was permanently and totally disabled number of small entitles as they are from non-service-connected disability § 3.314 Basic pension determinations. defined in the Regulatory Flexibility not the result of the veteran’s willful 2. In § 3.314(b)(2) remove the words Act, 5 U.S.C. 601–612. This rule merely misconduct or vicious habits. In 1978 ‘‘or vicious habits’’. consists of nonsubstantive changes. the Veterans’ and Survivors’ Pension § 3.323 Combined ratings. There is no Catalog of Federal Improvement Act of 1978, Public Law Domestic Assistance Number. 95–588, deleted the words ‘‘vicious 3. In § 3.323(b)(1) and (b)(2) remove the words ‘‘or vicious habits’’. List of Subjects in 38 CFR Part 2 habits’’ from the pension statute. In 1990 VA amended 38 CFR 3.301(b) [FR Doc. 96–11280 Filed 5–6–96; 8:45 am] Authority delegations (Government to delete the reference to ‘‘vicious BILLING CODE 8320±01±P agencies). habits’’ (55 FR 13529). 38 CFR 3.301(b) Approved: April 29, 1996. now states simply that ‘‘disability Jesse Brown, pension is not payable for any condition 38 CFR Part 4 due to the veteran’s own willful Secretary of Veterans Affairs. RIN 2900±AH05 misconduct.’’ For the reasons set forth in the There are additional references to Schedule for Rating Disabilities; preamble, 38 CFR part 2 is amended as ‘‘vicious habits’’ in 38 CFR sections Fibromyalgia set forth below: 3.314(b)(2), and 3.323(b) which apparently were overlooked when 38 AGENCY: Department of Veterans Affairs. PART 2ÐDELEGATIONS OF CFR 3.301(b) was amended in 1990. ACTION: Interim final rule with request AUTHORITY This rule deletes those references and for comments. conforms the rules to the current 1. The authority citation for part 2 is SUMMARY: This document amends the revised to read as follows: language of 38 U.S.C. 1521(a). Since these amendments are in the Department of Veterans Affairs (VA) Authority: 5 U.S.C. 302; 38 U.S.C. 501, nature of a technical correction, the Schedule for Rating Disabilities by 512; 44 U.S.C. 3702. Secretary finds that notice and public adding a diagnostic code and evaluation criteria for fibromyalgia. The intended §§ 2.3, 2.72, 2.73, 2.74, 2.91, 2.93, 2.94 procedure thereon are unnecessary. [Removed] Accordingly, these amendments are effect of this rule is to ensure that promulgated without regard to the veterans receive consistent evaluations 2. In part 2, §§ 2.3, 2.72, 2.73, 2.74, for this condition. 2.91, 2.93, and 2.94 are removed. notice-and-comment and effective-date provisions of 5 U.S.C. 553. DATES: This interim final rule is [FR Doc. 96–11278 Filed 5–6–96; 8:45 am] Because no notice of proposed effective May 7, 1996. Comments must BILLING CODE 8320±01±P rulemaking was required in connection be received on or before July 8, 1996. Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20439

ADDRESSES: Mail written comments to: Classification criteria for fibromyalgia (See 38 CFR 4.20.) However, because of Director, Office of Regulations for research and epidemiological the variety of analogous conditions Management (02D), Department of purposes were established by the under which fibromyalgia may be Veterans Affairs, 810 Vermont Ave., American College of Rheumatology in evaluated, it is necessary to establish a NW., Washington, DC 20420 or hand 1990. The first requirement is a history final rule immediately in order to avoid deliver written comments to: Office of of widespread pain, which means pain inconsistency in evaluations. Comments Regulations Management, Room 1176, in both the left and right sides of the are being solicited for 60 days after 801 Eye St., NW., Washington, DC body, pain both above and below the publication of this document. VA may 20001. Comments should indicate that waist, and pain in both the axial modify the rule in response to they are submitted in response to ‘‘RIN (cervical spine, anterior chest, thoracic comments, if appropriate. 2900–AH05.’’ All written comments spine, or low back) and peripheral Because no notice of proposed received will be available for public (extremity) skeleton. The second rulemaking was required in connection inspection in the Office of Regulations requirement is the presence of pain on with the adoption of this interim final Management, Room 1176, 801 Eye St., digital palpation at a minimum of 11 of rule, no regulatory flexibility analysis is NW., Washington, DC 20001 between the following 18 tender point sites: required under the Regulatory the hours of 8:00 a.m. and 4:30 p.m., occiput, low cervical, trapezius, Flexibility Act (5 U.S.C. 601 et seq.). Monday through Friday (except supraspinatus, second rib, lateral Further, this amendment would not holidays). epicondyle, gluteal, greater trochanter, directly affect any small entities since it FOR FURTHER INFORMATION CONTACT: knee (there is a left site and a right site would affect only individuals. Caroll McBrine, M.D., Consultant, at each location). In clinical practice, This rule has been reviewed as a Regulations Staff, Compensation and the diagnosis is often made on less ‘‘significant regulatory action’’ under Pension Service, Veterans Benefits stringent criteria, with fewer tender E.O. 12866 by the Office of Management Administration, Department of Veterans points required. and Budget. We are providing three levels of Affairs, 810 Vermont Ave., NW., The Catalog of Federal Domestic evaluation: 10, 20, and 40 percent, Washington, DC 20420, (202) 273–7210. Assistance program numbers are 64.104 consistent, in our judgment, with the and 64.109. SUPPLEMENTARY INFORMATION: The VA clinical range of impairment of this Schedule for Rating Disabilities, which condition. While patients may have List of Subjects in 38 CFR Part 4 constitutes 38 CFR Part 4, is a guide for numerous symptoms that may be the evaluation of disability resulting Disability benefits, Individuals with chronic, it is a benign disease that does disabilities, Pensions, Veterans. from diseases or injuries. This not result in loss of musculoskeletal document adds to the musculoskeletal function. For the 40 percent level, the Approved: December 7, 1995. section of the Schedule, § 4.71a, a new requirements are that the widespread Jesse Brown, diagnostic code, 5025, for fibromyalgia, pain and multiple tender points, with or Secretary of Veterans Affairs. also called fibrositis or primary without certain associated complaints, For the reasons set forth in the fibromyalgia syndrome, and establishes be constant, or nearly so, and refractory preamble, 38 CFR part 4, subpart B is criteria for its evaluation. to therapy. For the 20 percent level, the amended as set forth below: Fibromyalgia is a syndrome of requirements are that the pain and chronic, widespread musculoskeletal tender points, etc., be episodic, with PART 4ÐSCHEDULE FOR RATING pain associated with multiple tender or exacerbations often precipitated by DISABILITIES ‘‘trigger’’ points, and often with environmental or emotional stress or by multiple somatic complaints. Sleep overexertion, but present more than 1. The authority citation for part 4 disorders are present in more than half one-third of the time. For the 10 percent continues to read as follows: of the patients. Anxiety, fatigue, level, the requirement is that the pain Authority: 38 U.S.C. 1155. headache, and irritable bowel symptoms and tender points, etc., require are also common. Some patients continuous medication for control. Subpart BÐDisability Ratings complain of neurologic symptoms such It is necessary to make this rule 2. In § 4.71a, diagnostic code 5025 is as numbness and weakness, but effective upon publication. Conditions added immediately after the sentence objective neurologic abnormalities are not listed in the Schedule may be that follows diagnostic code 5024, to not found. Other associated findings evaluated under a closely related read as follows: include depression, Raynaud’s-like condition in which anatomical symptoms, and stiffness. The etiology is localization, functions affected, and § 4.71a Schedule of ratingsÐ unknown. symptomatology are closely analogous. musculoskeletal system.

Rating

******* 5025 Fibromyalgia (fibrositis, primary fibromyalgia syndrome) With widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance, stiffness, paresthesias, headache, irritable bowel symptoms, depression, anxiety, or Raynaud's-like symptoms: That are constant, or nearly so, and refractory to therapy ...... 40 That are episodic, with exacerbations often precipitated by environmental or emotional stress or by overexertion, but that are present more than one-third of the time ...... 20 That require continuous medication for control ...... 10

******* Note: Widespread pain means pain in both the left and right sides of the body, that is both above and below the waist, and that affects both the axial skeleton (i.e., cervical spine, anterior chest, thoracic spine, or low back) and the extremities. 20440 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

[FR Doc. 96–11275 Filed 5–6–96; 8:45 am] VA agrees that objective rating criteria tachycardia means more than 100 beats BILLING CODE 8320±01±P help assure consistency of evaluations. per minute. With that in mind, we have revised the We proposed that the criteria for proposed criteria. In some cases we hyperthyroidism include ‘‘marked 38 CFR Part 4 have simply removed subjective terms sympathetic nervous system, cardiovascular, or gastrointestinal RIN 2900±AE41 such as ‘‘marked’’, ‘‘increasingly severe’’, and ‘‘pronounced’’ when they symptoms’’ at the 100 percent level and Schedule for Rating Disabilities; did not substantively explain or clarify ‘‘marked emotional instability’’ at the 60 Endocrine System Disabilities the evaluation criteria. In other cases, percent level. In both cases, we have we have supplied objective definitions removed the indefinite word ‘‘marked’’ AGENCY: Department of Veterans Affairs. of terms. In still others, establishing because it does not substantively ACTION: Final rule. more objective, consistent, and explain or clarify the evaluation criteria, unambiguous criteria required more and the criteria are clear without it. SUMMARY: This document amends that detailed modification of the proposed One commenter suggested that we portion of the Department of Veterans criteria, which will be discussed under specify the symptoms of the Affairs (VA) Schedule for Rating the affected diagnostic codes. sympathetic nervous system proposed Disabilities that addresses the Endocrine One commenter, while agreeing with as criteria at the 100 percent level of System. The effect of this action is to the removal of ambiguous words such as evaluation under DC 7900. update the endocrine portion of the ‘‘severe,’’ urged that the rules not be VA does not concur. The sympathetic rating schedule to ensure that it uses made too concrete and thus sterile. nervous system innervates thoracic, current medical terminology and We believe that providing clear and abdominal, and pelvic viscera as well as unambiguous criteria, and that it reflects objective criteria is the best way to blood vessel walls. Therefore, medical advances which have occurred assure that disabilities will be evaluated exaggerated sympathetic nervous system since the last review. fairly and consistently. Judgment and activity can have widespread DATES: This amendment is effective June flexibility are required in the evaluation manifestations including, but not 6, 1996. process, since patients do not limited to, elevated blood pressure, commonly present as textbook models increased cardiac output, increased FOR FURTHER INFORMATION CONTACT: metabolic rate, sweating, nervousness, Caroll McBrine, M.D., Consultant, of disease, and those evaluating disabilities always have the task of weight loss, tachycardia, palpitations, Regulations Staff (211B), Compensation assessing which evaluation level best increased frequency of bowel and Pension Service, Veterans Benefits represents the overall picture. (See 38 movements, and heat intolerance. Administration, Department of Veterans CFR 4.7.) Certain conditions, hyperthyroidism Affairs, 810 Vermont Avenue NW, One commenter stated that it would among them, are known as Washington, DC 20420, (202) 273–7210. be helpful to have additional notes, sympathomimetic conditions because SUPPLEMENTARY INFORMATION: As part of such as the note under DC 7913 on the they mimic the effects of increased the first comprehensive review of the evaluation of the complications of activity of the sympathetic nervous rating schedule since 1945, VA diabetes mellitus, discussing pertinent system, although the sympathetic published a proposal to amend 38 CFR clinical and nonclinical factors to be nervous system itself is normal. Since 4.119, which addresses the endocrine considered in assigning evaluations. the particular signs and symptoms that system, in the Federal Register of In general, we have retained or might be exhibited vary widely from January 22, 1993 (58 FR 5691–95). expanded upon such notes. Where it individual to individual, limiting the Interested persons were invited to seemed more appropriate, we have criteria at the 100 percent level to a few submit written comments on or before incorporated the content of notes into selected symptoms of the sympathetic March 23, 1993. We received comments the evaluation criteria. We have not nervous system would be inappropriate. from The American Legion, Disabled added notes containing background We proposed that increased pulse American Veterans, Veterans of Foreign material, such as general medical pressure be one of the criteria for the 60 Wars, Paralyzed Veterans of America, information that is available in standard percent and 30 percent levels of and VA employees. textbooks, or other material that neither hyperthyroidism. One commenter There were a number of general prescribes VA policy nor establishes questioned the use of pulse pressure as comments. Two commenters requested procedures a rating board must follow, a criterion, stating that it is not a that we establish more objective criteria, because such material is not appropriate diagnostic marker and is not routinely especially for thyroid disease, in a regulation. recorded on an examination report. parathyroid disease, and diabetes We have revised hyperthyroidism, DC Pulse pressure is the difference mellitus. One of them noted that a 7900, in response to the comment between the systolic and diastolic blood substantial number of subjective suggesting more objectivity. The pressures, and it is readily available for descriptors remained. The other proposed criteria required ‘‘severe anyone who has had a blood pressure recommended that we remove tachycardia’’ at the 100 percent level recorded. Hyperthyroidism is one of a ambiguous and undefined terms. One and ‘‘tachycardia’’ at all other levels. number of diseases that may produce an commenter said that the schedule According to ‘‘The Merck Manual’’ (463, increased (or widened) pulse pressure, should eliminate, as much as possible, 16th ed. 1992), tachycardia is a heart which results from an elevated systolic the potential for inconsistency and rate greater than 100 beats per minute, blood pressure and a lowered diastolic error. Another suggested that removing but the medical literature does not blood pressure. Because increased pulse comparative descriptions such as define ‘‘severe’’ tachycardia. Using the pressure is a common sign of ‘‘severe,’’ ‘‘moderate’’, etc., would not word ‘‘severe’’ therefore imposed upon hyperthyroidism, it is an appropriate disturb the remaining criteria and the rater the burden of subjectively criterion to use in evaluating would result in more uniform rating determining its meaning, and we have hyperthyroidism. decisions. removed ‘‘severe’’ at the 100 percent One commenter suggested that tremor Although the commenters offered no level. We have also made the criteria (one of several proposed criteria for specific alternatives for consideration, more objective by indicating that hyperthyroidism at the 10 and 30 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20441 percent levels of evaluation) be The request for separate evaluation of clarify that not all nontoxic adenomas evaluated as a secondary condition with symptoms is a different issue. Because are considered disfiguring, we have a minimum evaluation of 20 percent, of the widespread effects of thyroid restored the zero percent level for those even for involvement of only one hand, hormone, the symptoms of thyroid ‘‘without disfigurement of the head or because it is an employment handicap. disease are diverse, reflecting effects on neck.’’ This does not represent a VA does not concur. There are several multiple body systems. However, the substantive change. types of tremors, and it appears that the presence of such symptoms (e.g., For the sake of clarity, we have also commenter may have based his gastrointestinal symptoms under removed the indefinite word ‘‘severe’’ suggestion on the observation of an hyperthyroidism (DC 7900)) can be an before ‘‘cold intolerance’’ in the individual with a tremor other than the inherent part of thyroid disease and proposed criteria for a 100 percent type characteristic of hyperthyroidism. does not ordinarily indicate that a evaluation for hypothyroidism (DC The tremor of hyperthyroidism is a fine separate and distinct secondary 7903) and revised the indefinite tremor most noticeable in the condition is present. Unless they are criterion ‘‘slow pulse’’ to the more outstretched hands. It is characterized clearly part of a distinct condition precise medical term ‘‘bradycardia’’, as a physiologic tremor, i.e., one that is secondary to thyroid disease, the which is defined as less than 60 beats an exaggeration of the normal symptoms must be used in the overall per minute. We have also revised the physiologic tremor that virtually evaluation criteria for the thyroid requirement of ‘‘mental symptoms’’ to everyone experiences at times condition. The evaluation of secondary ‘‘mental disturbance,’’ since some of the (‘‘Harrison’s Principles of Internal conditions is discussed in the preceding possible manifestations are symptoms Medicine’’ 167 (Jean D. Wilson, M.D. et paragraph. but others are distinct mental disorders. al. eds., 12th ed. 1991)), and is not In the previous schedule, nontoxic These are not substantive changes. severely disabling. Including tremor as adenoma of the thyroid (DC 7902) was One commenter, stating that obesity is one of the requirements at the 10 and 30 evaluated on the basis of pressure such a pervasive problem in American percent levels of evaluation for symptoms or marked disfigurement. We society that weight gain is not a true measure or mark of a specific disorder, hyperthyroidism takes into account the proposed that it be evaluated at the 20 felt that weight gain should not be type and severity of the characteristic percent level if there is ‘‘marked included in the criteria for the 60 hyperthyroid-induced tremor. In our disfigurement of the head or neck.’’ One percent evaluation for hypothyroidism judgment, the presence of such a tremor commenter suggested that nontoxic (DC 7903). would not, in and of itself, warrant the adenoma of the thyroid be rated analogous to DC 7800 (scars, disfiguring, VA does not concur. There are special 20 percent evaluation the commenter characteristics of the weight gain suggests. head, face, or neck). We do not concur. Disfigurement from associated with hypothyroidism that One commenter suggested that a nontoxic adenoma of the thyroid is not distinguish it from the weight gain seen emotional disorders and gastrointestinal a skin phenomenon but an enlargement in simple obesity. The weight gain in and cardiovascular symptoms due to of the thyroid that produces an hypothyroidism is largely due to fluid thyroid conditions (hyperthyroidism, unsightly neck mass through sheer bulk. retention, which appears as ascites, DC 7900; toxic adenoma of thyroid Factors that are used to evaluate skin pleural effusion, edema of the gland, DC 7901; hypothyroidism, DC conditions, such as discoloration and extremities, or even edema of the 7903) be evaluated separately rather color contrast, are not appropriate for nervous system (‘‘Williams Textbook of than being part of the evaluation criteria evaluating that type of disfigurement. In Endocrinology’’ 447–48 (Jean D. Wilson, for thyroid conditions. response to the general request for more M.D. and Daniel W. Foster, M.D. eds., Severe thyroid disease may produce objective criteria previously mentioned, 8th ed. 1992)). This type of weight gain distinct secondary conditions, including we have removed the word ‘‘marked’’, is unlikely to be confused with obesity. certain mental disorders, and such leaving ‘‘with disfigurement of the head For this reason, we believe that weight conditions can always be service- or neck’’ as the sole criterion for a 20 gain is appropriate as part of the overall connected and separately evaluated (see percent evaluation. In our judgment, criteria for the evaluation of 38 CFR 3.310(a)). Some secondary any adenoma that is substantial enough hypothyroidism, and we have retained conditions, e.g., dementia under to be disfiguring warrants a 20 percent it among the criteria for the 60 percent hypothyroidism (DC 7903), are evaluation. This does not represent a level. specifically included in the evaluation substantive change from the proposed The previous schedule included criteria for the 60- or 100-percent levels criteria. ‘‘sluggish mentality and other of thyroid disease. This does not The proposed note under DC 7902 indications of myxedema’’ in the criteria exclude the possibility of service- stated to rate as impairment of affected for the 30 percent evaluation level of connecting and separately evaluating organ if a higher evaluation is hypothyroidism (DC 7903). We the secondary condition, but provides warranted. For the sake of clarity, we proposed to retain mental sluggishness an alternative means of evaluation by have revised the note to state that if as one of the criteria, but to delete the allowing the secondary condition to be there are symptoms due to pressure on term myxedema. A commenter objected used to support the 60- or 100-percent adjacent organs such as the trachea, to the removal of myxedema, saying evaluation level of thyroid disease. larynx, or esophagus, nontoxic adenoma there is no basis for our contention that However, the same condition cannot be of the thyroid will be evaluated under myxedema is seldom encountered. separately evaluated and concurrently the diagnostic code for disability of that The term myxedema is sometimes used to evaluate the primary condition organ, if doing so would result in a used loosely to refer to hypothyroidism (DC’s 7900, 7901, or 7903). (See 4.14 of higher evaluation. This does not in general, but in its stricter meaning, it this part.) This is comparable to the represent a substantive change from the is full-blown hypothyroidism with fluid evaluation of diabetes mellitus (DC proposed note. retention. Hypothyroidism may present 7913), where compensable We proposed to delete the zero at any level of severity, including a complications of diabetes may be either percent level of evaluation for nontoxic subclinical form, and myxedema in the separately evaluated or used to support adenoma (DC 7902) that was present in strict sense is found only in severe a 100-percent evaluation. the previous schedule. However, to disease, when hypothyroidism is 20442 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations untreated or has reached an advanced circulating thyroid hormone’’ from the should be employed in place of stage. We therefore replaced ‘‘sluggish 60 percent and 30 percent levels of ambiguous terms. mentality with other indications of hypothyroidism, (3) ‘‘elevated levels of Criteria we proposed for the 100 myxedema’’ at the 30 percent level with circulating thyroid hormones’’ as a percent level of hypoparathyroidism, in less ambiguous criteria: fatigability, requirement for the 100 and 60 percent addition to ocular disturbances, were: constipation, and mental sluggishness. levels of hyperthyroidism (DC 7900), seizures or convulsions, muscular The previous schedule assigned and (4) ‘‘elevated blood and urine spasm (tetany), or marked hyperthyroidism (DC 7900) and calcium levels’’ as a requirement for the neuromuscular excitability. Since hypothyroidism (DC 7903) minimum 100 and 60 percent levels of muscular spasms and convulsions are ten percent evaluations when hyperparathyroidism (DC 7904). themselves two specific manifestations continuous medication is required for One commenter suggested that we of marked neuromuscular excitability, control. We proposed to delete the quantify weight loss by indicating a for more clarity and to eliminate minimum evaluations, and three percentage below normal weight or redundancy, we have retained marked commenters objected. similar objective measure rather than neuromuscular excitability as one of the Upon further review, VA agrees that using the term ‘‘marked weight loss’’ for criteria, giving its most common a ten percent evaluation is appropriate the 100 and 60 percent levels of manifestations—convulsions, muscular when continuous medication is required hyperparathyroidism (DC 7904). spasms (tetany), and laryngeal for control of these conditions because In addition to removing the references stridor—in parentheses. By providing such treatment implies both the need for to laboratory findings, as discussed this list of conditions, we have made the repeated medical evaluations and the above, we have modified the criteria for meaning of ‘‘marked’’ definite enough possibility of side effects that may hyperparathyroidism by removing that it substantively clarifies the degree themselves require treatment. We have ‘‘marked weight loss’’ from the criteria of neuromuscular excitability needed to therefore restored the ten percent for the 100 and 60 percent levels. Since support a 100 percent evaluation. evaluation level under diagnostic codes severe hyperparathyroidism may For the 60 percent level of 7900 and 7903 for those who require manifest itself through a variety of hypoparathyroidism, the proposed continuous medication. For the sake of gastrointestinal symptoms, weight loss criteria were: marked neuromuscular consistency, we have also added a ten being only one (Williams, 1431), we excitability, ocular disturbances, and percent evaluation level under have replaced the separate requirement constipation or numbness and tingling hyperparathyroidism (DC 7904) for for weight loss with the more flexible of the extremities. We have revised the those who require continuous requirement for ‘‘gastrointestinal proposed criteria by providing three medication. We have recast the note symptoms (nausea, vomiting, anorexia, alternative sets of criteria: marked under hypoparathyroidism (DC 7905) constipation, weight loss, or peptic neuromuscular excitability, a establishing a minimum evaluation of ulcer)’’ at the 100 and 60 percent levels. combination of paresthesias (of arms, ten percent when continuous This change recognizes that legs, or circumoral area) and cataract, or medication is required as ten percent gastrointestinal symptoms are part of an a combination of paresthesias and evaluation criteria. The change under overall pattern of abnormalities, but that increased intracranial pressure. While DC 7905 is editorial in nature and does any individual symptom, such as a this represents a substantive change, it not represent any substantive change to specified amount of weight loss, is not responds to the general comment that the criteria as proposed. required for either level of severity. This we eliminate, as much as possible, the ‘‘Decreased levels of circulating offers more flexibility than the proposed potential for inconsistency and error. thyroid hormones (T4 and/or T3 by requirement for marked weight loss. The proposed criteria appeared to be specific assays)’’ was one of the criteria We proposed that ocular disturbances more stringent at the 60 percent level for a 100 percent evaluation for be one of the criteria for both the 100 than at the 100 percent level, and there hypothyroidism (DC 7903) in the percent and 60 percent levels of also could have been confusion about previous schedule. We proposed a evaluation for hypoparathyroidism (DC which of the criteria listed were change to ‘‘undetectable levels of 7905). One commenter, while giving no required and which were alternatives. circulating thyroid hormones’’ as one of reason, requested that ocular The revision eliminates this confusion, the criteria for the 100 percent level. disturbances be removed as a criterion. affords more flexibility, and provides a Two commenters felt that the proposed There are two distinct types of ocular clearer differentiation between the 100 change made the criteria too stringent. disturbance that may occur in and 60 percent levels. VA concurs. Therapy is instituted as hypoparathyroidism—cataracts and We deleted the word ‘‘marked’’, soon as medical personnel learn that papilledema (Williams, 1456–57; modifying loss of muscle strength, at the there are no detectable levels of Harrison, 1915–16). Papilledema, if 100 percent level of Cushing’s syndrome hormone; the therapy produces a rapid present, would be an indication of the (DC 7907). This is more objective reversion of hormone levels toward increased intracranial pressure that because the rater does not now have to normal but leaves the clinical signs of sometimes occurs in estimate whether a reported loss of disease to resolve more slowly. hypoparathyroidism, but it is only one muscle strength is ‘‘marked.’’ The Although many endocrine conditions possible manifestation of increased change allows any reported loss of require laboratory confirmation of intracranial pressure. Cataracts are muscle strength to serve as one of the hormone levels for diagnosis, the unrelated to increased intracranial requirements at the 100 percent level. hormone levels may not correlate with pressure. For the sake of making the We proposed to retain 100 and 60 the severity of the clinical findings, and criteria clearer and more objective, we percent levels of evaluation for laboratory findings are therefore more have substituted ‘‘cataract or evidence Cushing’s syndrome, as in the previous useful for diagnosis than evaluation. For of increased intracranial pressure (such schedule. One commenter stated that these reasons, we have removed: (1) as papilledema)’’ for ‘‘ocular the condition warrants additional levels ‘‘undetectable levels of circulating disturbances’’. of evaluation, especially when it is thyroid hormones’’ from the criteria for One commenter mentioned secondary to medication. the 100 percent level of hypothyroidism hypoparathyroidism as another example VA agrees. Although secondary (DC 7903), (2) ‘‘decreased levels of of a condition where objective criteria Cushing’s syndrome (due to steroid Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20443 therapy) has physical findings occur are the result of localized or to the basic requirements of thirst and indistinguishable from primary generalized increased intracranial polyuria. Serum and urine osmolality Cushing’s syndrome (Harrison, 1723), pressure because acromegaly is almost levels are objective criteria, but there is a wide range of severity always due to a pituitary adenoma osmolality levels were not proposed as depending on the dosage of steroids (Merck, 1064). There may, for example, criteria for the 20, 40, or 100 percent used, duration of therapy, etc. We have be a visual field defect when the levels. The change in favor of specifying therefore added a 30 percent level of pituitary tumor presses on the optic the number of episodes of dehydration Cushing’s syndrome for those with chiasm. However, it is increased provides criteria that are more parallel milder manifestations: striae, obesity, intracranial pressure from the tumor and comparable from one level to the moon face, glucose intolerance, and that is the underlying cause of any next, and are objective enough that the vascular fragility. visual impairment that is present, and additional laboratory tests are not The previous schedule required the increased pressure is at times needed to determine a 60 percent level increased intracranial pressure, manifested only by findings other than of severity. Finally, we have changed hypertension, genital decline and visual impairment. We have therefore the proposed requirement for the 40 atrophy, hypotrichosis, hypoglycemia, revised the criteria by deleting the percent level from ‘‘polyuria, excessive obesity, and asthenia for a 100 percent requirement for both increased thirst, and dehydration’’ to ‘‘polyuria evaluation of acromegaly (DC 7908). We intracranial pressure and visual with near-continuous thirst, and one or proposed to revise the criteria by impairment in favor of a more flexible, more episodes of dehydration in the requiring increased intracranial but also more specific, requirement for past year not requiring parenteral pressure, arthropathy, glucose evidence of increased intracranial hydration.’’ intolerance, hypertension, pressure ‘‘such as visual field defect.’’ We have also deleted the words cardiomegaly, and visual impairment. This will allow other possible ‘‘increasingly,’’ ‘‘severe,’’ One individual felt that represents a manifestations of increased intracranial ‘‘pronounced,’’ and ‘‘marked’’ wherever tightening of the requirements and pressure, such as papilledema, they occurred in the proposed recommended that cardiomegaly not be headaches, etc., to satisfy one of the evaluation criteria for Addison’s disease required at the 100 percent level. requirements for a 100 percent level of (DC 7911). These words did not Upon further consideration, VA has evaluation and will exclude as criteria substantively explain or clarify the revised the proposed criteria for the 100 visual impairments that have no evaluation criteria, and the criteria are percent level. Cardiomegaly is present relationship to acromegaly. clear without them. in 80 percent of acromegalics and may In further response to the general The proposed criteria for the 20 be part of the generalized organomegaly request for more objective criteria, we percent level of Addison’s disease that is sometimes seen (Williams, 272). have revised the proposed criteria for required either corticosteroid therapy or It is therefore seen commonly enough to diabetes insipidus (DC 7909) by a combination of weakness and be an appropriate criterion. removing the subjective terms fatigability. In response to the Hypertension occurs in approximately ‘‘excessive thirst’’ and ‘‘severe polyuria’’ commenter who said that the schedule 20–40 percent of acromegalics, and wherever they occurred in favor of the should eliminate the potential for overactivity of the sympathetic nervous more objective phrase ‘‘polyuria with inconsistency, we have added system has been suggested as a possible near-continuous thirst.’’ We also revised alternative criteria for the 20 percent etiology. Hypertension and the criteria for the 100 percent level that are parallel to the higher cardiomegaly are thus independent evaluation, which we proposed to be: levels. These criteria require one or two entities, with apparently different ‘‘excessive thirst and severe polyuria crises or two to four episodes during the etiologies (although they may be requiring parenteral hydration therapy, past year, which assures consistency of associated when hypertension results in episodes of syncope, and low systolic evaluation for those with fewer crises or cardiomegaly). Because either may be a and diastolic blood pressure’’ to a episodes. For further clarity of the manifestation of acromegaly, instead of requirement for ‘‘polyuria with near- criteria, we added two notes under DC removing cardiomegaly, we have made continuous thirst, and more than two 7911 that define Addisonian ‘‘crises’’ cardiomegaly an alternative criterion to documented episodes of dehydration and Addisonian ‘‘episodes.’’ hypertension at the 100 percent level, requiring parenteral hydration in the In the previous schedule, under rather than requiring both. past year.’’ The excretion of large diabetes mellitus (DC 7913), regulation The previous schedule required quantities of very dilute urine is the or careful regulation of activities intracranial pressure as one of the underlying abnormality in this (defined as avoidance of strenuous criteria for the 100 percent level of condition, and this leads to dehydration occupational and recreational activities) acromegaly, and symptoms of and hypovolemia. Syncope and low was one of the criteria at the 100 percent intracranial pressure in the optic region blood pressure are not isolated separate and 40 percent evaluation levels. We for the 60 percent level. We proposed to signs but are common effects of proposed ‘‘regulation of activities,’’ not require both increased intracranial dehydration, and these criteria therefore further defined, as a criterion at the 100, pressure and visual impairment for the encompass both parenteral hydration 60, and 40 percent levels. One 100 percent level. One commenter, therapy, used to treat dehydration, and commenter felt that the proposed noting that increased intracranial two of the signs of dehydration (syncope change in language made the meaning pressure specifically impairs peripheral and low blood pressure). less clear. vision, stated that ‘‘visual impairment’’ The proposed criteria for the 60 We agree and have retained the is too broad a term. He said we should percent level included excessive thirst, definition used in the previous rating distinguish visual field loss from central polyuria, dehydration, serum osmolality schedule, ‘‘avoidance of strenuous visual acuity loss and other visual greater than 295 mOsm/kg., and urine occupational and recreational deficits. osmolality less than 38 mOsms/kg. We activities,’’ and included it in the We agree. The term ‘‘visual revised these to a requirement for one or evaluation criteria for the 100 percent impairment’’ can have many meanings, two documented episodes of level. and not all types of visual impairment dehydration requiring parenteral The same commenter said that it is result from acromegaly. Those that do hydration in the past year, in addition meaningless to include limitation of 20444 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations activities as a factor in evaluating deficiencies or beginning diabetic ocular incapacitating symptoms, muscular diabetes mellitus since information of disturbances.’’ weakness, arthropathy, fatigability, etc., this type is not provided in a VA A commenter stated that the word all of which may affect the ability to examination. ‘‘severe,’’ referring to complications at work. Furthermore, we have provided VA disagrees. VA’s Physician’s Guide the 100 percent level of diabetes criteria for the 100 percent levels that for Disability Evaluation Examinations mellitus, is a subjective description that indicate a degree of severity that would is meant to insure that all necessary should be changed. render the average person completely tests are performed and that all findings VA agrees. We have revised the unable to work. Thus the proposed are provided for diagnosis and/or language at both the 60 and 100 percent criteria do address the effects of time evaluation to meet the specific levels to make it more objective, lost from work. requirements of the Schedule for Rating consistent from level to level, and more An additional general comment was Disabilities and related programs. It is precise. We have revised the 100 that recently discharged veterans would available to VA and fee-basis examiners percent criteria to require complications be discriminated against by being conducting examinations for VA that would be compensable if separately evaluated under the revised rating disability benefits. The Guide will be evaluated and the 60 percent criteria to schedule, which he said is revised to provide detailed guidelines require complications that would not be ‘‘deliberalized’’. for examinations reflecting the revised compensable if separately evaluated. VA disagrees. 38 U. S. C. gives the provisions of the rating schedule. It is This is also consistent with note (1), Secretary the authority to readjust the incumbent upon the rating board to following DC 7913, that directs that schedule of ratings from time to time in return to the examiner reports that lack compensable complications of diabetes accordance with experience. The information necessary to apply the mellitus are to be rated separately significant medical advances that have provisions of the rating schedule (see unless they support a 100 percent occurred since 1945 form part of the § 4.2 of 38 CFR). evaluation and that noncompensable experience that must be taken into account in revising the rating schedule. The proposed 100 percent level for complications are considered part of the In order to assure fair and consistent diabetes mellitus required ‘‘repeated’’ diabetic process under DC 7913. One commenter questioned whether a evaluations for veterans, the schedule episodes of ketoacidosis or 10 percent evaluation included those must reflect actual residuals of disease hypoglycemic reactions requiring, with Type II (adult onset) diabetes or injuries, not what residuals might among other things, ‘‘frequent’’ hospital without symptoms and not following a have been in the past. Furthermore, or physician treatment. We received one restricted diet. Congress foresaw that evaluations might comment requesting that we clearly The criterion we proposed for the 10 change when the rating schedule is define ‘‘frequent treatment.’’ percent level, ‘‘controlled by restricted revised and amended 38 U.S.C. 1155 to We concur and have revised that diet only,’’ refers to anyone with prohibit a reduction in a veteran’s portion of the criteria to require diabetes mellitus mild enough not to disability rating because of a ‘‘episodes of ketoacidosis or require insulin or oral hypoglycemics. readjustment of the rating schedule hypoglycemic reactions requiring at For the sake of greater clarity, we have unless an improvement in the disability least three hospitalizations per year or revised the requirement for zero percent has been shown. weekly visits to a diabetic care to ‘‘manageable by restricted diet only.’’ The previous schedule had a 100 provider.’’ Similarly, for the 60 percent This does not represent a substantive percent evaluation for one year level we have changed the requirement change. following the cessation of treatment of from ‘‘occasional’’ episodes of A proposed note under diabetes malignancies. We proposed that the 100 ketoacidosis or hypoglycemic reactions mellitus (DC 7913) stated that when percent evaluation continue indefinitely to ‘‘episodes of ketoacidosis or diabetes mellitus has been definitely but that there be a mandatory VA hypoglycemic reactions requiring one or diagnosed, a glucose tolerance test need examination six months following the two hospitalizations per year or twice a not be ordered solely for rating cessation of treatment, with any change month visits to a diabetic care purposes. A commenter said that the in evaluation based on that or any provider.’’ The change from a term ‘‘definitely diagnosed’’ is an subsequent examination, to be requirement for physician treatment to a entirely subjective descriptor. implemented under the provisions of 38 requirement for visits to a diabetic care To assure that there is no CFR 3.105(e). Three commenters provider reflects the fact that diabetics misunderstanding about the meaning, recommended that VA retain the are usually under the care of a we have changed the term ‘‘definitely evaluation criteria from the previous multidisciplinary diabetic team, and at diagnosed’’ to ‘‘conclusively schedule. any given visit may see a nurse diagnosed.’’ The intent of the term We do not concur. An examination practitioner, physician’s assistant, etc. ‘‘conclusively diagnosed’’ is to indicate six months following the cessation of The previous schedule required those individuals who have a diagnosis treatment affords sufficient time for ‘‘severe complications’’ as one of the of diabetes mellitus that has been convalescence and stabilization of alternative criteria for the 100 percent established through the usual medical residuals because the rule requires an level of diabetes mellitus (DC 7913). The means, both clinical and laboratory, and examination, not a reduction, six proposed revision instead required to exclude those with insufficient months after the cessation of treatment. ‘‘severe complications such as evidence to support a clear diagnosis. In fact, the rule precludes a reduction at retinopathy, nephropathy, One commenter stated that the that time because the process of re- arteriosclerosis, or neuropathy’’ as one revision should address the basic evaluation does not begin until then. of the alternatives. For the 60 percent concept of lost earnings due to time lost First, there must be a VA examination level the previous schedule required from work. He suggested no alternatives. six months after completion of ‘‘mild complications, such as pruritus In our judgment, the evaluation treatment. If the results of that or any ani, mild vascular deficiencies, or criteria we have provided are clearly subsequent examination warrant a beginning diabetic ocular disturbances.’’ linked to lost earnings because they reduction in evaluation, the reduction The proposed revision required ‘‘mild include such things as periods of will be implemented under the complications such as mild vascular hospitalization, episodes of provisions of 38 CFR 3.105(e), which Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20445 require a 60 day notice before VA The myriad of advances in medicine The diagnoses listed by the reduces an evaluation and an additional that have occurred since 1945, such as commenter are actually laboratory test 60 day notice before the reduced early ambulation, better surgical results, and are not, in and of evaluation takes effect. The revision not techniques, new anesthetics, and better themselves, disabilities. They are, only requires a current examination to control of infectious diseases, have led therefore, not appropriate entities for assure that all residuals are to strikingly shorter periods of the rating schedule to address. In documented, but also offers the veteran convalescence after both medical and addition, they have no special more contemporaneous notice of any surgical treatment. The revisions were relationship to the endocrine system. proposed action and expands the proposed based on medical We have made several additional veteran’s opportunity to present considerations; no cost studies or changes based on our own review of the evidence showing that the proposed projections were conducted in proposed regulation. For example, we action should not be taken. In our conjunction with this review. Cost edited the proposed note under judgment, this method will better cutting was therefore not an issue. malignant neoplasm (DC 7914) by ensure that actual side-effects and One commenter stated that applying modifying the sentence ‘‘Any change in recuperation times are taken into § 3.105(e) will cause significant evaluation based upon that examination account because they will be noted on problems from an administrative shall be subject to the provisions of the required VA exam. standpoint and will often significantly § 3.105(e) of this chapter’’ to ‘‘Any Because of commenters’ concerns, lengthen the periods for which a change in evaluation based upon that or however, we have revised the note convalescent rate is paid. any subsequent examination shall be under this code so that it cannot be VA believes that the changes in subject to the provisions of § 3.105(e) of misinterpreted as requiring a reduction convalescence following treatment of this chapter.’’ The change assures that six months after treatment is terminated. malignancy where § 3.105(e) must be the veteran will be given the notices We have also added to the note a applied can be implemented without described above regardless of when an direction to rate on residuals, if there serious administrative problems. examination leading to a proposed has been no local recurrence or Similar changes are being made in each change in evaluation is done and is metastasis, in order to make these body system, and any procedural consistent with changes we have made provisions consistent with those we changes that may be necessary to in the revision of other portions of the provided for malignancies of the revised implement the new process will be rating schedule. This represents no genitourinary system. This is not a made as needed. We have included the substantive change. substantive change, but has been made implementation of the provisions of The previous schedule had a note to provide further clarity, as well as § 3.105(e) to assure that veterans are under DC 7900, hyperthyroidism, internal consistency within the rating afforded due process before addressing the issue of evaluating schedule. convalescent ratings are reduced, and if hyperthyroid heart disease if disease of One commenter said that VA administrative delays do occur from the heart predominates. We have exceeded its mandate by proposing the time to time, they cannot operate to the expanded the note for clarity by adding change in convalescence. disadvantage of veterans. Also, since ‘‘if doing so would result in a higher VA does not concur. VA’s mandate § 3.105(e) applies only to reductions in evaluation than using the criteria arises from 38 U.S.C. 1155, which ‘‘compensation payments currently above.’’ authorizes the Secretary to readjust the being made,’’ it need not be applied in We also made a nonsubstantive rating schedule from time to time in cases where a total evaluation will be editorial change in the note following accordance with experience. assigned and reduced retroactively. pheochromocytoma (DC 7918) from the Another commenter objected to the One commenter urged that VA proposal to rate hyperpituitarism, change in convalescence, saying that the provide zero percent evaluations for all hyperaldosteronism and average person would require at least 12 diagnostic codes. pheochromocytoma as malignant or months of convalescence for brain We do not agree. On October 6, 1993 benign neoplasm under DC 7914 or surgery. VA revised its regulation addressing the 7915, whichever is applicable, to a VA does not agree. The convalescent issue of zero percent evaluations (38 direction to evaluate those conditions periods adopted in this change CFR 4.31) to authorize assignment of a under benign or malignant neoplasms as represent, in our judgment, based on zero percent evaluation for any appropriate. sound medical advice, neither the disability in the rating schedule when For the sake of greater clarity and ease longest nor shortest periods that any minimum requirements for a of comparison, we rearranged the order individual patient might require for compensable evaluation are not met. In of the criteria for diabetes mellitus (DC recovery, but the usual or normal general, that regulatory provision 7913) regarding need for insulin or an periods during which a normal patient, precludes the need for zero percent oral hypoglycemic agent, diet, and under normal circumstances, would be evaluation criteria. We have retained regulation of activities, putting them in expected to recover from a specific zero percent evaluation criteria only the same order at all levels where they condition or surgical procedure. when necessary to give the rater clear appear. This does not represent a Furthermore, these convalescent periods and unambiguous instructions on rating substantive change. represent the point at which the where it might otherwise be unclear We proposed that constipation be one individual patient’s condition is to be whether commonly occurring minor of the criteria for the 60 percent level of evaluated by examination, and do not findings warrant a compensable hypoparathyroidism (DC 7905). preclude an extension of a total evaluation. However, because standard medical evaluation, if appropriate, based on the One commenter noted that veterans textbooks such as ‘‘The Merck Manual’’ individual patient’s condition. are receiving diagnoses of and ‘‘Williams Textbook of Another commenter said that the hyperlipidemia, elevated triglycerides, Endocrinology’’ do not include it as a proposed changes in convalescent and elevated cholesterol, and the characteristic clinical manifestation of periods appear to be purely commenter asked that we address the hypoparathyroidism, we have economically based. handling of claims for these findings. concluded that it is not appropriate as 20446 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations part of VA’s evaluation criteria, and we PART 4ÐSCHEDULE FOR RATING Rat- have, therefore, removed it. DISABILITIES ing We proposed that DC 7901 (thyroid gland, toxic adenoma of) be rated as DC 1. The authority citation for part 4 With disfigurement of the head or neck ...... 20 7900 (hyperthyroidism). For the continues to read as follows: Authority: 38 U.S.C. 1155. Without disfigurement of the head or convenience of rating specialists, we neck ...... 0 have instead repeated the rating criteria Subpart BÐDisability Ratings NOTE: If there are symptoms due to for DC 7900 under DC 7901. For the pressure on adjacent organs such same reason, we have repeated the note 2. Section 4.119 is revised to read as as the trachea, larynx, or esopha- under DC 7914, which explains follows: gus, evaluate under the diagnostic evaluation of malignant neoplasms, code for disability of that organ, if under C-cell hyperplasia of the thyroid § 4.119 Schedule of ratingsÐendocrine doing so would result in a higher (DC 7919), rather than instructing to rate system. evaluation than using this diag- C-cell hyperplasia of the thyroid as nostic code. Rat- 7903 Hypothyroidism malignant neoplasm, as we proposed. ing Cold intolerance, muscular weak- These changes reduce the risk of error ness, cardiovascular involvement, because the necessary criteria are 7900 Hyperthyroidism mental disturbance (dementia, closely associated with the diagnostic Thyroid enlargement, tachycardia slowing of thought, depression), code rather than on another page, and (more than 100 beats per minute), bradycardia (less than 60 beats they also save time for the rating eye involvement, muscular weak- per minute), and sleepiness ...... 100 specialist. They do not represent ness, loss of weight, and sympa- Muscular weakness, mental disturb- thetic nervous system, cardio- ance, and weight gain ...... 60 substantive changes. vascular, or astrointestinal symp- We have made additional Fatigability, constipation, and mental toms ...... 100 sluggishness ...... 30 nonsubstantive editorial changes in Emotional instability, tachycardia, Fatigability, or; continuous medica- fatigability, and increased pulse language by substituting ‘‘evaluate’’ for tion required for control ...... 10 pressure or blood pressure ...... 60 ‘‘rate’’ in several instances and by 7904 Hyperparathyroidism Tachycardia, tremor, and increased changing ‘‘neoplasms’’ to ‘‘neoplasm’’ in Generalized decalcification of bones, DC’s 7914 and 7915, for internal pulse pressure or blood pressure 30 Tachycardia, which may be intermit- kidney stones, gastrointestinal consistency in the rating schedule. tent, and tremor, or; continuous symptoms (nausea, vomiting, ano- VA appreciates the comments medication required for control ...... 10 rexia, constipation, weight loss, or peptic ulcer), and weakness ...... 100 submitted in response to the proposed NOTE (1): If disease of the heart is rule, which is now adopted with the the predominant finding, evaluate Gastrointestinal symptoms and amendments noted above. as hyperthyroid heart disease (DC weakness ...... 60 Continuous medication required for The Secretary hereby certifies that 7008) if doing so would result in a higher evaluation than using the control ...... 10 this regulatory amendment will not NOTE: Following surgery or treat- have a significant economic impact on criteria above. NOTE (2): If ophthalmopathy is the ment, evaluate as digestive, skele- a substantial number of small entities as sole finding, evaluate as field vi- tal, renal, or cardiovascular residu- they are defined in the Regulatory sion, impairment of (DC 6080); als or as endocrine dysfunction. Flexibility Act (RFA), 5 U.S.C. 601–612. diplopia (DC 6090); or impairment 7905 Hypoparathyroidism The reason for this certification is that of central visual acuity (DC 6061± Marked neuromuscular excitability this amendment would not directly 6079). (such as convulsions, muscular affect any small entities. Only VA 7901 Thyroid gland, toxic adenoma of spasms (tetany), or laryngeal stridor) plus either cataract or evi- beneficiaries could be directly affected. Thyroid enlargement, tachycardia (more than 100 beats per minute), dence of increased intracranial Therefore, pursuant to 5 U.S.C. 605(b), pressure (such as papilledema) .... 100 this amendment is exempt from the eye involvement, muscular weak- ness, loss of weight, and sympa- Marked neuromuscular excitability, initial and final regulatory flexibility thetic nervous system, cardio- or; paresthesias (of arms, legs, or analysis requirements of sections 603 vascular, or gastrointestinal symp- circumoral area) plus either cata- and 604. toms ...... 100 ract or evidence of increased This regulatory amendment has been Emotional instability, tachycardia, intracranial pressure ...... 60 reviewed by the Office of Management fatigability, and increased pulse Continuous medication required for and Budget under the provisions of pressure or blood pressure ...... 60 control ...... 10 7907 Cushing's syndrome Executive Order 12866, Regulatory Tachycardia, tremor, and increased As active, progressive disease in- Planning and Review, dated September pulse pressure or blood pressure 30 Tachycardia, which may be intermit- cluding loss of muscle strength, 30, 1993. tent, and tremor, or; continuous areas of osteoporosis, hyper- The Catalog of Federal Domestic medication required for control ...... 10 tension, weakness, and enlarge- Assistance program numbers are 64.104 NOTE (1): If disease of the heart is ment of pituitary or adrenal gland 100 and 64.109. the predominant finding, evaluate Loss of muscle strength and en- as hyperthyroid heart disease (DC largement of pituitary or adrenal List of Subjects in 38 CFR Part 4 7008) if doing so would result in a gland ...... 60 Disability benefits, Individuals with higher evaluation than using the With striae, obesity, moon face, glu- disabilities, Pensions, Veterans. criteria above. cose intolerance, and vascular fra- NOTE (2): If ophthalmopathy is the gility ...... 30 Approved: December 5, 1995. sole finding, evaluate as field vi- NOTE: With recovery or control, Jesse Brown, sion, impairment of (DC 6080); evaluate as residuals of adrenal Secretary of Veterans Affairs. diplopia (DC 6090); or impairment insufficiency or cardiovascular, of central visual acuity (DC 6061± psychiatric, skin, or skeletal com- For the reasons set forth in the 6079). plications under appropriate diag- preamble, 38 CFR part 4, subpart B, is 7902 Thyroid gland, nontoxic ade- nostic code. amended as set forth below: noma of 7908 Acromegaly Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20447

Rat- Rat- Rat- ing ing ing

Evidence of increased intracranial Requiring more than one daily injec- NOTE: A rating of 100 percent shall pressure (such as visual field de- tion of insulin, restricted diet, and continue beyond the cessation of fect), arthropathy, glucose intoler- regulation of activities (avoidance any surgical, X-ray, antineoplastic ance, and either hypertension or of strenuous occupational and rec- chemotherapy or other therapeutic cardiomegaly ...... 100 reational activities) with episodes procedure. Six months after dis- Arthropathy, glucose intolerance, of ketoacidosis or hypoglycemic continuance of such treatment, the and hypertension ...... 60 reactions requiring at least three appropriate disability rating shall Enlargement of acral parts or over- hospitalizations per year or weekly be determined by mandatory VA growth of long bones, and en- visits to a diabetic care provider, examination. Any change in eval- larged sella turcica ...... 30 plus either progressive loss of uation based upon that or any 7909 Diabetes insipidus weight and strength or complica- subsequent examination shall be Polyuria with near-continuous thirst, tions that would be compensable if subject to the provisions of and more than two documented separately evaluated ...... 100 § 3.105(e) of this chapter. If there episodes of dehydration requiring Requiring insulin, restricted diet, and has been no local recurrence or parenteral hydration in the past regulation of activities with epi- metastasis, rate on residuals. year ...... 100 sodes of ketoacidosis or hypo- Polyuria with near-continuous thirst, glycemic reactions requiring one [FR Doc. 96–11281 Filed 5–6–96; 8:45 am] and one or two documented epi- or two hospitalizations per year or BILLING CODE 8320±01±P sodes of dehydration requiring twice a month visits to a diabetic parenteral hydration in the past care provider, plus complications year ...... 60 that would not be compensable if Board of Veterans' Appeals separately evaluated ...... 60 Polyuria with near-continuous thirst, and one or more episodes of de- Requiring insulin, restricted diet, and 38 CFR Parts 19 and 20 hydration in the past year not re- regulation of activities ...... 40 RIN 2900±AH16 quiring parenteral hydration ...... 40 Requiring insulin and restricted diet, or; oral hypoglycemic agent and Polyuria with near-continuous thirst 20 restricted diet ...... 20 Appeals Regulations, Rules of 7911 Addison's disease (Adrenal Manageable by restricted diet only ... 10 Practice: Single Member and Panel Cortical Hypofunction) NOTE (1): Evaluate compensable Decisions; Reconsiderations; Order of Four or more crises during the past complications of diabetes sepa- Consideration year ...... 60 rately unless they are part of the Three crises during the past year, or; criteria used to support a 100 per- AGENCY: Department of Veterans Affairs. five or more episodes during the cent evaluation. Noncompensable ACTION: Final rule. past year ...... 40 complications are considered part One or two crises during the past of the diabetic process under diag- SUMMARY: This document amends the year, or; two to four episodes dur- nostic code 7913. Appeals Regulations and Rules of ing the past year, or; weakness NOTE (2): When diabetes mellitus and fatigability, or; corticosteroid Practice of the Board of Veterans’’ has been conclusively diagnosed, Appeals. The amendments incorporate therapy required for control ...... 20 do not request a glucose tolerance NOTE (1): An Addisonian ``crisis'' test solely for rating purposes. recent statutory changes (including consists of the rapid onset of pe- 7914 Neoplasm, malignant, any spec- provisions to allow matters to be ripheral vascular collapse (with ified part of the endocrine system .... 100 decided by individual Board members), acute hypotension and shock), NOTE: A rating of 100 percent shall set forth procedures regarding with findings that may include: continue beyond the cessation of reconsideration of decisions, change anorexia; nausea; vomiting; dehy- any surgical, X-ray, antineoplastic office names and designations due to dration; profound weakness; pain chemotherapy or other therapeutic administrative changes within the in abdomen, legs, and back; fever; procedure. Six months after dis- Board, and make other nonsubstantive apathy, and depressed mentation continuance of such treatment, the changes. with possible progression to coma, appropriate disability rating shall renal shutdown, and death. be determined by mandatory VA DATES: Effective Date: This final rule is NOTE (2): An Addisonian ``episode,'' examination. Any change in eval- effective May 7, 1996. for VA purposes, is a less acute uation based upon that or any Applicability Dates: The and less severe event than an subsequent examination shall be incorporation of statutory provisions Addisonian crisis and may consist subject to the provisions of and statutory interpretations contained of anorexia, nausea, vomiting, di- § 3.105(e) of this chapter. If there in this final rule will be applied arrhea, dehydration, weakness, has been no local recurrence or retroactively from the effective dates of malaise, orthostatic hypotension, metastasis, rate on residuals. or hypoglycemia, but no peripheral the statutory provisions. For more 7915 Neoplasm, benign, any speci- information concerning the application vascular collapse. fied part of the endocrine system NOTE (3): Tuberculous Addison's dis- rate as residuals of endocrine dys- of the provisions of this final rule, see ease will be evaluated as active or function. the SUPPLEMENTARY INFORMATION section. inactive tuberculosis. If inactive, 7916 Hyperpituitarism (prolactin se- FOR FURTHER INFORMATION CONTACT: these evaluations are not to be creting pituitary dysfunction) Steven L. Keller, Chief Counsel, Board combined with the graduated rat- 7917 Hyperaldosteronism (benign or of Veterans’ Appeals, Department of ings of 50 percent or 30 percent malignant) Veterans Affairs, 810 Vermont Avenue, for non-pulmonary tuberculosis 7918 Pheochromocytoma (benign or specified under § 4.88b. Assign NW, Washington, DC 20420 (202–565– malignant) 5978). the higher rating. NOTE: Evaluate diagnostic codes 7912 Pluriglandular syndrome 7916, 7917, and 7918 as malig- SUPPLEMENTARY INFORMATION: This Evaluate according to major mani- nant or benign neoplasm as ap- document amends the Appeals festations. propriate. Regulations, 38 CFR Part 19, and the 7913 Diabetes mellitus 7919 C-cell hyperplasia of the thyroid 100 Rules of Practice, 38 CFR Part 20, of the 20448 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

Board of Veterans’ Appeals (Board). The Court of Veterans Appeals be treated Approved: April 30, 1996. Board adjudicates appeals of denials of expeditiously. Jesse Brown, claims for veterans’ benefits. Further, § 19.11(b) has been amended Secretary of Veterans Affairs. to provide that reconsideration panels Public Law 103–271 For the reasons set out in the are to be enlarged in increments of three preamble, title 38 of the Code of Federal In large part, the amendments made as necessary to obtain a majority Regulations, parts 19 and 20, are by this document reflect statutory decision. This constitutes the policy for amended under the authority of Public changes made by Public Law 103–271. the Board to use in implementing the Law 103–271, 108 Stat. 740, and Public Changes are made to §§ 19.3, 19.9, provisions of Public Law 103–271. Law 103–446, 108 Stat. 4645, as set 19.11, 19.12, 19.76, 20.3, 20.102, 20.401, Finally, Parts 19 and 20 are amended forth below: 20.606, 20.700, 20.702 through 20.705, to update current titles and designations 20.707 through 20.708, 20.711, 20.714 within the Board, and to make other PART 19ÐBOARD OF VETERANS' through 20.717, 20.901, 20.1003, and nonsubstantive changes. APPEALS: APPEALS REGULATIONS 20.1100, to reflect that, under Public This final rule consists of 1. The authority citation for part 19 Law 103–271, the Board’s Chairman incorporation of statutory provisions, continues to read as follows: may assign matters, including hearings, interpretive rules, rules of agency to individual Board members or to procedure or practice, and Authority: 38 U.S.C. 501(a) panels of three or more members. nonsubstantive changes and, therefore, Subpart AÐOperation of the Board of Changes are made to §§ 19.3, 19.11, is not subject to the notice and comment Veterans' Appeals 20.102, 20.608, 20.707, 20.711, 20.717, and effective date provisions of 5 U.S.C. and 20.1304 to reflect that, under Public 553. 2. Section 19.2 is revised to read as Law 103–271, a proceeding may not be The Secretary hereby certifies that follows: assigned to the Chairman as an this final rule will not have a significant individual member but that the economic impact on a substantial § 19.2 Composition of the Board. Chairman may participate in a number of small entities as they are The Board consists of a Chairman, proceeding assigned to a panel, or in a defined in the Regulatory Flexibility Act Vice Chairman, Deputy Vice Chairmen, reconsideration assigned to a panel, and (RFA), 5 U.S.C. 601–602, since it does Members and professional, to reflect how a reconsideration panel is not contain any substantive provisions. administrative, clerical and to be constituted. This final rule would not cause a stenographic personnel. Deputy Vice Changes are made to §§ 19.11 and significant effect on any entities. Chairmen are Members of the Board 20.707 to reflect that, under Public Law Therefore, pursuant to 5 U.S.C. 605(b), who are appointed to that office by the 103–271, reconsideration of a matter this amendment is exempt from the Secretary upon the recommendation of heard by a single member shall be initial and final regulatory flexibility the Chairman. referred to a panel of not less than three analysis requirements of sections 603 (Authority: 38 U.S.C. 501(a), 512, 7101(a)) Board members, that reconsideration of and 604. 3. Section 19.3 is revised to read as a matter heard by a panel of members Incorporation of statutory provisions follows: shall be referred to an enlarged panel, and statutory interpretations made by and that a reconsideration panel may this final rule will be applied § 19.3 Assignment of proceedings. not include any member who made the retroactively from the effective dates of (a) Assignment. The Chairman may decision that is being reconsidered. the statutory provisions. The dates of Changes are made to §§ 19.75 and assign a proceeding instituted before the application for such changes and for 20.704 to reflect that, under Public Law Board, including any motion, to an certain of the nonsubstantive changes 103–271, hearings at a facility within individual Member or to a panel of three made for clarity, to correct the area served by a VA regional office or more Members for adjudication or typographical errors, or to reflect shall be scheduled to be held in the other appropriate action. The Chairman statutory recodification changes are as order in which requested, but may be may participate in a proceeding follows: assigned to a panel of Members. scheduled earlier if the appellant is July 1, 1994: §§ 19.3(a) and (b); 19.4; (Authority: 38 U.S.C. 7102) seriously ill or under severe financial 19.9; 19.11; 19.12(b); 19.75; 19.76; hardship. 20.3(h) and (n); 20.102(c) and (d); (b) Inability to serve. If a Member is Changes are made to § 20.3 to reflect 20.401(b); 20.606(a), (b), and (d); unable to participate in the disposition that, under Public Law 103–271, in lieu 20.608(b)(2); 20.700(b) and (d); of a proceeding or motion to which the of a personal hearing, an appellant may 20.702(a), (c), (d), and (e); 20.704(a), (c), Member has been assigned, the participate in a Board hearing through (d), (e), and (f); 20.705(b); 20.707; Chairman may assign the proceeding or picture or through voice transmission, 20.708; 20.711(e) and (h); 20.714(a)(4); motion to another Member or substitute by electronic or other means, with the 20.715; 20.716; 20.717(d); 20.901(e); another Member (in the case of a Board member or members at the 20.1003; 20.1100(a); and 20.1304(b). proceeding or motion assigned to a Board’s principal location. November 2, 1994: § 20.900(b) and panel). Miscellaneous (d). Authority: 38 U.S.C. 7101(a), 7102) In addition, definitions of ‘‘electronic List of Subjects § 19.4 [Amended] hearing’’ and ‘‘presiding member’’ have been added to § 20.3 to reflect the 38 CFR Part 19 In § 19.4 the authority citation is revised to read as follows: Board’s interpretation of Public Law Administrative practice and 103–271 and, in § 20.900, paragraph (b) procedure, Claims, Veterans. (Authority: 38 U.S.C. 7102, 7104, 7107) has been revised and paragraph (d) 38 CFR Part 20 5. Section 19.7 is amended by adding added to reflect the Board’s a new paragraph (c) to read as follows: interpretation of the requirement, Administrative practice and established by Public Law 103–446, procedure, Claims, Lawyers, Legal § 19.7 The decision. Section 302, that cases remanded by the services, Veterans. * * * * * Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20449

(c) A decision by a panel of Members Subpart BÐAppeals Processing by which have been rescheduled due to a will be by a majority vote of the panel Agency of Original Jurisdiction postponement requested by an Members. appellant, or on his or her behalf, or due § 19.30 [Amended] 6. Section 19.9 is revised to read as to the prior failure of an appellant to follows: 9. In § 19.30 paragraph (b), is appear at a scheduled hearing before the amended by removing ‘‘VA Form 1–9’’ Board of Veterans’ Appeals at a § 19.9 Remand for further development. and adding, in its place, ‘‘VA Form 9’’. Department of Veterans Affairs field When, during the course of review, it § 19.31 [Amended] facility with good cause. The right to notice at least 60 days in advance will is determined that further evidence or 10. In § 19.31, the last sentence is be deemed to have been waived if an clarification of the evidence or removed. correction of a procedural defect is appellant accepts an earlier hearing date essential for a proper appellate decision, § 19.35 [Amended] due to the cancellation of another a Member or panel of Members of the 11. Section 19.35 is amended by previously scheduled hearing. Board shall remand the case to the removing ‘‘VA Form 1–8’’ and adding, (Authority: 38 U.S.C. 7107) agency of original jurisdiction, in its place, ‘‘VA Form 8’’. specifying the action to be undertaken. § 19.77 [Removed and revised] Subpart CÐAdministrative Appeals 16. Section 19.77 is removed, and (Authority: 38 U.S.C. 7102, 7104(a)) revised. 12. Section 19.51(a)(1) is revised to 7. Section 19.11 is revised to read as read as follows: Subpart EÐSimultaneously Contested follows: § 19.51 Officials authorized to file Claims § 19.11 Reconsideration panel. administrative appeals and time limits for 17. Section 19.101 is amended by (a) Assignment of Members. When a filing. removing ‘‘VA Form 1–9’’ and adding, motion for reconsideration is allowed, * * * * * in its place, ‘‘VA Form 9’’. the Chairman will assign a panel of (a) Central Office—(1) Officials. The three or more Members of the Board, Under Secretary for Benefits or a service PART 20ÐBOARD OF VETERANS' which may include the Chairman, to director of the Veterans Benefits APPEALS: RULES OF PRACTICE conduct the reconsideration. Administration, the Under Secretary for Health or a service director of the 18. The authority citation for part 20 (b) Number of Members constituting a Veterans Health Administration, and the continues to read as follows: reconsideration panel. In the case of a General Counsel. Authority: 38 U.S.C. 501(a) matter originally heard by a single Member of the Board, the case shall be * * * * * Subpart AÐGeneral referred to a panel of three Members of 13. The heading for Subpart D is the Board. In the case of a matter revised to read as follows: 19. Section 20.3 is amended by redesignating paragraphs (h), (i), (j), (k), originally heard by a panel of Members Subpart DÐHearings Before the Board of the Board, the case shall be referred (l), (m), and (n) as (i), (j), (k), (l), (m), (o), of Veterans' Appeals at Department of and (p) respectively, and adding new to an enlarged panel, consisting of three Veterans Affairs Field Facilities or more Members than the original paragraphs (h) and (n) to read as panel. In order to obtain a majority 14. Section 19.75 is revised to read as follows: opinion, the number of Members follows: § 20.3 Rule 3. Definitions. assigned to a reconsideration panel may § 19.75 Hearing docket. * * * * * be increased in successive increments of (h) Electronic hearing means a hearing three. Hearings on appeal held at Department of Veterans Affairs field on appeal in which an appellant or a (c) Members included in the facilities will be scheduled for each area representative participates, through reconsideration panel. The served by a regional office in the order voice transmission or through picture reconsideration panel may not include in which requests for such hearings and voice transmission, by electronic or any Member who participated in the within that area are received by the other means, in a hearing with a decision that is being reconsidered. Department except when a motion to Member or Members sitting at the Additional Members will be assigned in advance the case on the hearing docket Board’s principal location in accordance with paragraph (b) of this is granted under Rule of Practice 704(f) Washington, DC. section. (38 CFR 20.704(f)). * * * * * (Authority: 38 U.S.C. 7102, 7103) (Authority: 38 U.S.C. 7107) (n) Presiding Member means that Member of the Board who presides over 8. Section 19.12(b) is revised to read 15. Section 19.76 is revised to read as a hearing, whether conducted as a single as follows: follows: Member or panel hearing. § 19.12 Disqualification of Members. § 19.76 Notice of time and place of hearing * * * * * * * * * * before the Board of Veterans' Appeals at Department of Veterans Affairs field Subpart BÐThe Board (b) Appeal on same issue subsequent facilities. to decision on administrative appeal. 20. In § 20.102 paragraph (d) is The agency of original jurisdiction Any Member of the Board who made the removed, and paragraph (c) is revised to will notify the appellant and his or her decision on an administrative appeal read as follows: representative of the place and time of will disqualify himself or herself from a hearing before the Board of Veterans’ § 20.102. Rule 102. Delegation of acting on a subsequent appeal by the Appeals at a Department of Veterans authorityÐRules of Practice. claimant on the same issue. Affairs field facility not less than 60 * * * * * (Authority: 38 U.S.C. 7102, 7104, 7106) days prior to the hearing date. This time (c) The authority exercised by the * * * * * limitation does not apply to hearings Chairman of the Board of Veterans’ 20450 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

Appeals described in Rules 2 and 606(e) Member or Members of the Board at (Authority: 38 U.S.C. 7102, 7105, 7107) (§§ 20.2, and 20.606(e) of this part), may Department of Veterans field facilities’’; 31. Section 20.702 is amended by also be exercised by the Vice Chairman and by removing ‘‘traveling Section’’ revising the last sentence in paragraph of the Board; by Deputy Vice Chairmen and adding, in its place, ‘‘hearing’’. (c)(1), the last two sentences in of the Board; and, in connection with a Paragraph (d) is amended by removing paragraph (c)(2), the fourth and last proceeding or motion assigned to them ‘‘Chief of Hearing Section’’ and adding, sentences in paragraph (d), the last by the Chairman, by a Member or in its place, ‘‘Director of the sentence in paragraph (e), and the Members of the Board. Administrative Service’’; and by authority citations for paragraphs (a) * * * * * removing ‘‘proceedings before traveling through (e) to read as follows: Sections’’ and adding, in its place, Subpart CÐCommencement and ‘‘hearings before a Member or § 20.702 Rule 702. Scheduling and notice Perfection of Appeal Members’’; and by revising the phrase of hearings conducted by the Board of ‘‘not more than 10 days prior to the Veterans' Appeals in Washington, DC. § 20.202 [Amended] scheduled hearing date’’ to read, ‘‘not (a) * * * 21. Section 20.202 is amended by less than 10 days prior to the scheduled (Authority: 38 U.S.C. 7102, 7105(a), 7107) removing ‘‘VA Form 1–9’’ and adding, hearing date,’’ and reinserting it directly in its place, ‘‘VA Form 9’’. after the first appearance of ‘‘attorney-at- (b) * * * law’’ in the second sentence; and (Authority: 38 U.S.C. 7102, 7105(a), 7107) Subpart EÐAdministrative Appeals removing ‘‘traveling Section’’ in the (c) Requests for changes in hearing 22. In § 20.401, paragraph (b) is third sentence and adding, in its place, dates. (1) * * * In the case of hearings revised to read as follows: ‘‘hearing’’. to be conducted by the Board of § 20.401 Rule 401. Effect of decision on § 20.608 [Amended] Veterans’ Appeals in Washington, DC, administrative or merged appeal on 27. In § 20.608, paragraph (b)(2), the such requests for a new hearing date claimant's appellate rights. last sentence is removed. must be filed with: Director, * * * * * 28. The heading for Subpart H is Administrative Service (014), Board of (b) Appeal not merged. If the claimant revised to read as follows: Veterans’ Appeals, 810 Vermont does not authorize merger, normal Avenue, NW., Washington, DC 20420. appellate rights on the same issue are Subpart HÐHearings on Appeal (2) * * * In the case of a hearing conducted by the Board of Veterans’ preserved, and the Chairman will assign 29. In § 20.700, paragraph (b) is the proceeding to a Member or panel of Appeals in Washington, DC, whether amended in the third sentence by good cause for establishing a new Members of the Board who did not removing ‘‘personal’’, and by removing make the decision on the administrative hearing date has been shown will be ‘‘of the hearing panel involved’’ in the determined by the presiding Member appeal. The period of time from the date last sentence and adding, in its place, of notification to the claimant of the assigned to conduct the hearing. In the ‘‘assigned to conduct the hearing’’; case of hearings to be conducted by the administrative appeal to the date of the paragraph (d) is amended in the second Board’s decision on the administrative Board of Veterans’ Appeals in sentence by removing ‘‘a Board of Washington, DC, the motion for a new appeal is not chargeable to the claimant Veterans’ Appeals hearing panel’’ and hearing date must be filed with: for purposes of determining the time adding, in its place, ‘‘the Board of Director, Administrative Service (014), limit for perfecting his or her separate Veterans Appeals’’, and by removing Board of Veterans’ Appeals, 810 appeal. ‘‘panel members’’ in the third sentence Vermont Avenue, NW., Washington, DC * * * * * and adding, in its place, ‘‘Member or 20420. Members to whom the appeal has been Subpart GÐRepresentation assigned for a determination’’; a new (Authority: 38 U.S.C. 7102, 7105(a), 7105A, 7107) § 20.603 [Amended] paragraph (e) is added; and the authority citation is revised to read as (d) Failure to appear for a scheduled 23. Section 20.603(a) is amended by follows. hearing. ** * In the case of hearings to removing ‘‘VA Form 2–22a’’ and adding, be conducted by the Board of Veterans’ in its place, ‘‘VA Form 22a’’. § 20.700 Rule 700. General. Appeals in Washington, DC, the motion § 20.604 [Amended] * * * * * must be filed with: Director, (e) Electronic hearings. When suitable 24. Section 20.604(a) is amended by Administrative Service (014), Board of facilities and equipment are available, Veterans’ Appeals, 810 Vermont removing ‘‘VA Form 2–22a’’ and adding, an appellant may be scheduled for an in its place, ‘‘VA Form 22a’’. Avenue, NW., Washington, DC 20420. electronic hearing. Any such hearing ** * In the case of hearings before the § 20.605 [Amended] will be in lieu of a hearing held by Board of Veterans’ Appeals in 25. Section 20.605(c) is amended by personally appearing before a Member Washington, DC, whether good cause for removing ‘‘VA Form 2–22a’’ and adding, or panel of Members of the Board and such failure to appear has been in its place, ‘‘VA Form 22a’’. shall be conducted in the same manner established will be determined by the as, and considered the equivalent of, § 20.606 [Amended] presiding Member assigned to conduct such a hearing. If an appellant declines the hearing. 26. In § 20.606, paragraph (a) is to participate in an electronic hearing, amended by removing ‘‘before traveling the appellant’s opportunity to (Authority: 38 U.S.C. 7102, 7105(a), 7105A, Sections of the Board’’. Paragraph (b) is participate in a hearing before the Board 7107) amended by removing ‘‘Chief, Hearing shall not be affected. (e) Withdrawal of hearing requests. Section (014B)’’ and adding, in its place, (Authority: 38 U.S.C. 7102, 7105(a), 7107) ** * In the case of hearings to be ‘‘Director, Administrative Service conducted by the Board of Veterans’ (014)’’; and by removing ‘‘appeals before § 20.701 [Amended] Appeals in Washington, DC, the notice traveling Sections of the Board’’ and 30. In § 20.701, the authority citation of withdrawal must be sent to: Director, adding, in its place, ‘‘hearings before a is revised to read as follows: Administrative Service (014), Board of Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20451

Veterans’ Appeals, 810 Vermont hearing if good cause is shown. Such requesting postponement have been Avenue, NW., Washington, DC 20420. requests must be in writing, must established will be determined by the (Authority: 38 U.S.C. 7102, 7105(a), 7107) explain why a new hearing date is Member who would have presided over (Approved by the Office of Management and necessary, and must be filed with the the hearing. If good cause and the Budget under control number 2900–0085) office of the official of the Department impossibility of timely requesting of Veterans Affairs who signed the postponement are shown, the hearing 32. Section 20.703 is revised to read notice of the original hearing date. will be rescheduled for the next as follows: Examples of good cause include, but are available hearing date at the same § 20.703 Rule 703. When right arises to not limited to, illness of the appellant facility after the appellant or his or her hearing before the Board of Veterans' and/or representative, difficulty in representative gives notice that the Appeals at a Department of Veterans Affairs obtaining necessary records, and contingency which gave rise to the field facility. unavailability of a necessary witness. If failure to appear has been removed. A hearing before the Board of good cause is shown, the hearing will be (e) Withdrawal of hearing requests. A Veterans’ Appeals at a Department of rescheduled for the next available request for a hearing may be withdrawn Veterans Affairs field facility is a hearing date after the appellant or his or by an appellant at any time before the ‘‘hearing on appeal.’’ Accordingly, there her representative gives notice that the date of the hearing. A request for a is no right to such a hearing until a contingency which gave rise to the hearing may not be withdrawn by an Notice of Disagreement has been filed. request for postponement has been appellant’s representative without the Any request for such a hearing filed removed. If good cause is not shown, consent of the appellant. Notices of with a Notice of Disagreement, or filed the appellant and his or her withdrawal must be submitted to the subsequent to the filing of a Notice of representative will be promptly notified office of the Department of Veterans Disagreement, will be accepted by the and given an opportunity to appear at Affairs official who signed the notice of agency of original jurisdiction. Requests the hearing as previously scheduled. If the hearing date. for such hearings filed before a Notice the appellant elects not to appear at the (f) Advancement of the case on the of Disagreement has been filed, or after prescheduled date, the request for a hearing docket. A hearing may be the Board has entered a final decision in hearing will be considered to have been scheduled at a time earlier than would the case on the issue (or issues) withdrawn. In such cases, however, the be provided for under paragraph (a) appealed will be rejected, except for record will be submitted for review by upon written motion of the appellant or requests for such hearings after a Notice the Member who would have presided the representative showing that the of Disagreement has been filed over the hearing. If the presiding appellant is seriously ill or under severe appealing a denial of benefits in a Member determines that good cause has financial hardship. The motion must be reopened claim which followed a prior been shown, the hearing will be filed with the Board of Veterans’ Board decision or after a motion for rescheduled for the next available Appeals, 810 Vermont Avenue, NW., reconsideration of a prior Board hearing date after the contingency Washington, DC 20420. The ruling on decision has been granted. which gave rise to the request for the motion will be by the Member assigned as the presiding Member for (Authority: 38 U.S.C. 7105(a), 7107) postponement has been removed. (d) Failure to appear for a scheduled the hearing. 33. In § 20.704, the section heading; hearing. If an appellant (or when a (Authority: 38 U.S.C. 7107) paragraphs (a), (c), (d), and (e); and the hearing only for oral argument by a (Approved by the Office of Management and authority citation are revised and representative has been authorized, the Budget under control number 2900–0085) paragraph (f) is added to read as follows: representative) fails to appear for a 34. Section 20.705(b) and the § 20.704 Rule 704. Scheduling and notice scheduled hearing and a request for authority citation are revised to read as of hearings conducted by the Board of postponement has not been received follows: Veterans' Appeals at Department of and granted, the case will be processed Veterans Affairs field facilities. as though the request for a hearing had § 20.705 Rule 705. Where hearings are (a) General. Hearings are conducted been withdrawn. No further request for conducted. by a Member or Members of the Board a hearing will be granted in the same * * * * * of Veterans’ Appeals during appeal unless such failure to appear was (b) At a Department of Veterans prescheduled visits to Department of with good cause and the cause for the Affairs facility having adequate physical Veterans Affairs facilities having failure to appear arose under such resources and personnel for the support adequate physical resources and circumstances that a timely request for of such hearings. personnel for the support of such postponement could not have been (Authority: 38 U.S.C. 7102, 7105(a), 7107) hearings. The hearings will be submitted prior to the scheduled scheduled in the order in which hearing date. A motion for a new § 20.706 [Amended] requests for such hearings within that hearing date following a failure to 35. In § 20.706, the authority citation area were received by the agency of appear for a scheduled hearing must be is revised to read as follows: original jurisdiction, except as provided in writing, must be filed within 15 days (Authority: 38 U.S.C. 7102, 7105(a), 7107) in paragraph (f). Requests for such of the originally scheduled hearing date, 36. Section 20.707 is revised to read hearings must be submitted to the and must explain why the appellant as follows: agency of original jurisdiction, in failed to appear for the hearing and why writing, and should not be submitted a timely request for a new hearing date § 20.707 Rule 707. Designation of Member directly to the Board of Veterans’ could not have been submitted. Such or Members to conduct the hearing. Appeals. motions must be filed with: Director, The Member or panel to whom a * * * * * Administrative Service (014), Board of proceeding is assigned under § 19.3 of (c) Requests for changes in hearing Veterans’ Appeals, 810 Vermont this part shall conduct any hearing dates. Requests for a change in a hearing Avenue, NW., Washington, DC 20420. before the Board in connection with that date may be made at any time up to two Whether good cause for such failure to proceeding. Where a proceeding has weeks prior to the scheduled date of the appear and the impossibility of timely been assigned to a panel, the Chairman, 20452 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations or the Chairman’s designee, shall ruling on the motion. Where the moving Veterans’ Appeals, 810 Vermont designate one of the Members as the party seeks production of documents or Avenue, NW., Washington, DC 20420. presiding Member. The Member or other tangible evidence, the Member or In the case of hearings held before the Members who conduct the hearing shall panel may condition the granting of the Board at Department of Veterans Affairs participate in making the final motion upon the advancement by the field facilities, arrangements must be determination of the claim, subject to moving party of the reasonable cost of made through the office of the the exception in § 19.11(c) of this part producing the books, paper, documents, Department of Veterans Affairs official (relating to reconsideration of a or other tangible evidence requested. who signed the letter giving notification decision). * * * * * of the time and place of the hearing. (h) Motion to quash or modify (Authority: 38 U.S.C. 7102, 7107) (Authority: 38 U.S.C. 7102, 7105(a), 7107) subpoena. If an individual served with 37. Section 20.708 is revised to read a subpoena considers the subpoena to 43. In § 20.716 the last two sentences as follows: be unreasonable or oppressive, he or she and the authority citation are revised to § 20.708 Rule 708. Prehearing conference. may move that the subpoena be quashed read as follows: or modified. Such motions must be in An appellant’s authorized writing and must explain why the § 20.716 Rule 716. Correction of hearing representative may request a prehearing subpoena is unreasonable or oppressive transcripts. conference with the presiding Member and what relief is sought. Such motions ** * In the case of hearings held of a hearing to clarify the issues to be must be filed with the Board not more considered at a hearing on appeal, before the Board of Veterans’ Appeals, than 10 days following receipt of the whether in Washington, DC, or in the obtain rulings on the admissibility of subpoena. Rulings on such motions will evidence, develop stipulations of fact, field, the motion must be filed with the be made by the Member or panel Director, Administrative Service (014), establish the length of argument which authorizing the subpoena, who will Board of Veterans’ Appeals, 810 will be permitted, or take other steps inform all interested parties of the Vermont Avenue, NW., Washington, DC which will make the hearing itself more ruling in writing. The quashing of any 20420. The ruling on the motion will be efficient and productive. With respect to subpoena will be conditional upon the made by the presiding Member of the hearings to be held before the Board at return of the check for fees and mileage hearing. Washington, DC, arrangements for a to the party on whose behalf the prehearing conference must be made subpoena was issued. (Authority: 38 U.S.C. 7102, 7105(a), 7107) through: Director, Administrative Service (014), Board of Veterans’ (Authority: 38 U.S.C. 5711, 7102(a), 7107) 44. Section 20.717, paragraph (c) is Appeals, 810 Vermont Avenue, NW., 41. In § 20.714, paragraph (a) amended by removing ‘‘Chief, Hearing Washington, DC 20420. Requests for introductory text is amended by revising Section (0141F)’’ and adding, in its prehearing conferences in cases the first sentence; paragraph (a)(1) is place, ‘‘Director, Administrative Service involving hearings to be held before the amended by removing ‘‘of the hearing (014); and by revising paragraph (d) and Board at Department of Veterans Affairs panel’’ in the second sentence, and by the authority citation to read as follows: field facilities must be addressed to the removing ‘‘Chief, Hearing Section office of the Department of Veterans (014B)’’ in the last sentence and adding, § 20.717 Rule 717. Loss of hearing tapes Affairs official who signed the letter in its place, ‘‘Director, Administrative or transcriptsÐmotion for new hearing. giving notice of the time and place of Service (014); and paragraph (a)(4) * * * * * the hearing. introductory text and the authority (d) Ruling on motion for a new (Authority: 38 U.S.C. 7102, 7105(a), 7107) citation at the end of the section are hearing. The ruling on the motion for a revised to read as follows: new hearing will be made by the § 20.709 [Amended] § 20.714 Rule 714. Record of hearing. Member who presided over the hearing. 38. Section 20.709 is amended by (a) Board of Veterans’ Appeals. A If the presiding Member is no longer revising the authority citation to read as hearing before a Member or panel of available, the ruling on the motion may follows: Members of the Board, whether held in be made by the Member or Members to (Authority: 38 U.S.C. 7102, 7105(a), 7107) Washington, DC, or at a Department of whom the case has been assigned for a determination. In cases in which a final 39. Section 20.710 is amended by Veterans Affairs field facility, will be Board of Veterans’ Appeals decision has revising the authority citation to read as recorded on audio tape. * * * already been promulgated with respect follows: * * * * * (4) With respect to hearings to the appeal in question, the Chairman § 20.710 Rule 710. Witnesses at hearings. conducted by a Member or Members of will assign the matter in accordance * * * * * the Board at a Department of Veterans with § 19.3 of this title. Factors to be (Authority: 38 U.S.C. 7102, 7105(a), 7107) Affairs field facility : * ** considered in ruling on the motion include, but will not be limited to, the 40. Section 20.711 is amended by * * * * * extent of the loss of the record in those (Authority: 38 U.S.C. 7102, 7105(a), 7107) revising paragraphs (e) and (h) and the cases where only a portion of a hearing authority citation to read as follows: 42. In § 20.715 the last two sentences tape is unintelligible or only a portion § 20.711 Rule 711. Subpoenas. and the authority citation are revised to of a transcript has been lost or read as follows: * * * * * destroyed, and the extent and (e) Ruling on motion for subpoena. § 20.715 Rule 715. Recording of hearing by reasonableness of any delay in moving Where the Chairman has assigned the appellant or representative. for a new hearing. If a new hearing is appeal to a Member or panel, the ruling ** * In the case of hearings held granted in a case in which a final Board on the motion will be made by that before the Board of Veterans’ Appeals in of Veterans’ Appeals decision has Member or panel. Where the appeal has Washington, DC, arrangements must be already been promulgated, a not been assigned, the Chairman will made with the Director of the supplemental decision will be issued. assign the matter for the purpose of Administrative Service (014), Board of (Authority: 38 U.S.C. 7102, 7105(a), 7107) Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20453

Subpart JÐAction by the Board (Authority: 38 U.S.C. 7102, 7103, 7105(a)) notice will be published in the Federal Register. 45. Section 20.900 is amended by Subpart LÐFinality ADDRESSES: Copies of the rule and EPA’s revising paragraph (b) and the authority 48. In section 20.1100(a), the last evaluation report for the rule are citation, and by adding a new paragraph available for public inspection at EPA’s (d) to read as follows: sentence is amended by removing ‘‘Section’’ and adding, in its place, Region IX office during normal business § 20.900 Rule 900. Order of consideration ‘‘Panel’’; and the first sentence is hours. Copies of the submitted rule are of appeals. revised to read as follows: available for inspection at the following * * * * * locations: § 20.1100 Rule 1100. Finality of decisions Rulemaking Section (A–5–3), Air and (b) Appeals considered in docket of the Board. order. Appeals are considered in the Toxics Division, U.S. Environmental order in which they are entered on the (a) General. All decisions of the Board Protection Agency, Region IX, 75 docket, except as provided in will be stamped with the date of mailing Hawthorne Street, San Francisco, CA paragraphs (c) and (d). on the face of the decision. * * * 94105 * * * * * * * * * * Environmental Protection Agency, Air Docket (6102), 401 ‘‘M’’ Street, S.W., (d) Consideration of appeals Subpart NÐMiscellaneous remanded by the United States Court of Washington, D.C. 20460 California Air Resources Board, Veterans Appeals. A case remanded by § 20.1304 [Amended] the United States Court of Veterans Stationary Source Division, Rule 49. In § 20.1304 paragraph (b) is Evaluation Section, 2020 ‘‘L’’ Street, Appeals for additional development or amended by removing the next-to-the- other appropriate action will be treated Sacramento, CA 95814 last sentence reading ‘‘The ruling on the Santa Barbara County Air Pollution expeditiously by the Board without motion will be by the Chairman.’’. Control District, 26 Casitilian Drive, regard to its place on the Board’s docket. [FR Doc. 96–11279 Filed 5–6–96; 8:45 am] B–23, Goleta, CA 93117 (Authority: 38 U.S.C. 7107, Pub. Law No. BILLING CODE 8320±01±P FOR FURTHER INFORMATION CONTACT: 103–446 § 302) Christine Vineyard, Rulemaking Section 46. Section 20.901(e) is revised to (A–5–3), Air and Toxics Division, U.S. read as follows: ENVIRONMENTAL PROTECTION Environmental Protection Agency, Region IX, 75 Hawthorne Street, San § 20.901 Rule 901. Medical opinions and AGENCY opinions of the General Counsel. Francisco, CA 94105, Telephone: (415) 40 CFR Part 52 744–1197. * * * * * (e) For purposes of this section, the [CA 095±0008a; FRL±5464±2] SUPPLEMENTARY INFORMATION: term ‘‘the Board’’ includes the Applicability Chairman, the Vice Chairman, any Approval and Promulgation of Deputy Vice Chairman, and any Implementation Plans; California State The rule being approved into the Member of the Board before whom a Implementation Plan Revision, Santa California SIP is SBCAPCD Rule 359, case is pending. Barbara County Air Pollution Control Flares and Thermal Oxidizers. This rule District was submitted by the California Air (Authority: 38 U.S.C. 5107(a), 7104(c), 7109) Resources Board (CARB) to EPA on July AGENCY: Environmental Protection 13, 1994. Subpart KÐReconsideration Agency (EPA). Background 47. Section 20.1003 is revised to read ACTION: Direct final rule. as follows: Rule 359 was originally adopted as SUMMARY: EPA is taking direct final part of SBCAPCD’s 1991 Air Quality § 20.1003 Rule 1003. Hearings on action on a revision to the California Attainment Plan in response to the reconsideration. State Implementation Plan (SIP). The California Clean Air Act and is not After a motion for reconsideration has revision concerns a new rule from the required by any specific provision of the been allowed, a hearing will be granted Santa Barbara County Air Pollution CAA. However, SBCAPCD Rule 359 is if an appellant requests a hearing before Control District (SBCAPCD). This consistent with the goals of the CAA the Board. The hearing will be held by approval action will incorporate this and EPA policy. In addition, Rule 359 a Member or Members assigned to the rule into the federally approved SIP. furthers the goals of the Act by reconsideration panel. A hearing will The intended effect of approving this strengthening the SIP. Section 110(a) of not normally be scheduled solely for the rule is to regulate emissions of oxides of the CAA contains general requirements purpose of receiving argument by a nitrogen (NOX), oxides of sulfur (SOX), for states to submit enforceable representative. Such argument should and volatile organic compounds (VOCs). emissions limitations and other control be submitted in the form of a written This rule controls NOX, SOX, and VOC measures as may be necessary or brief. Oral argument may also be emissions from flare and thermal appropriate to achieve the goals of the submitted on audio cassette for oxidizer stacks at oil and gas production Act. Rule 359 meets these requirements transcription for the record in industries. Thus, EPA is finalizing the by controlling NOX, SOX, and VOC accordance with Rule 700(d) approval of this rule into the California emissions from flare and thermal (§ 20.700(d) of this part). Requests for SIP under provisions of the Federal oxidizer stacks at oil and gas production appearances by representatives alone to Clean Air Act, as amended in 1990 facilities. personally present argument to a (CAA or the Act) regarding EPA action The State of California submitted Member or panel of Members of the on SIP submittals. many rules for incorporation into its SIP Board may be granted if good cause is DATES: This action is effective on July 8, on July 13, 1994, including the rule shown. Whether good cause has been 1996 unless adverse or critical being acted on in this notice. This shown will be determined by the comments are received by June 6, 1996. notice addresses EPA’s direct-final presiding Member. If the effective date is delayed, a timely action for SBCAPCD Rule 359, Flares 20454 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations and Thermal Oxidizers. Santa Barbara approve the SIP revision should adverse actions and also require the private County adopted Rule 359 on June 28, or critical comments be filed. This sector to perform certain duties. The 1994. This submitted rule was found to action will be effective July 8, 1996, rule being approved by this action will be complete on September 12, 1994 unless, by June 6, 1996, adverse or impose no new requirements because pursuant to EPA’s completeness criteria critical comments are received. affected sources are already subject to that are set forth in 40 CFR part 51, If the EPA receives such comments, this regulation under State law. appendix V 1 and is being finalized for this action will be withdrawn before the Therefore, no additional costs to State, approval into the SIP. effective date by publishing a local, or tribal governments or to the The following is EPA’s evaluation and subsequent document that will private sector result from this action. final action for this rule. withdraw the final action. All public EPA has also determined that this final comments received will then be action does not include a mandate that EPA Evaluation and Action addressed in a subsequent final rule may result in estimated costs of $100 In determining the approvability of based on this action serving as a million or more to State, local, or tribal this rule, EPA must evaluate the rule for proposed rule. The EPA will not governments in the aggregate or to the consistency with the requirements of institute a second comment period on private sector. this action. Any parties interested in the CAA and with EPA policy. This action has been classified as a commenting on this action should do so SBCAPCD’s submitted Rule 359, Table 3 action for signature by the Flares and Thermal Oxidizers includes at this time. If no such comments are received, the public is advised that this Regional Administrator under the the following requirements: procedures published in the Federal • Fuel sulfur content limits action will be effective July 8, 1996. • Register on January 19, 1989 (54 FR The use of technology-based Regulatory Process 2214–2225), as revised by a July 10, standards • Under the Regulatory Flexibility Act, 1995 memorandum from Mary Nichols, A flare minimization plan for all Assistant Administrator for Air and planned flaring activities 5 U.S.C. 600 et seq., EPA must prepare • a regulatory flexibility analysis Radiation. The Office of Management Emergency events documentation and Budget (OMB) has exempted this • Proposes pollutant emission limits assessing the impact of any proposed or final rule on small entities. 5 U.S.C. 603 regulatory action from Executive Order for continuous, planned flaring at 12866 review. thermal oxidizers and enclosed ground and 604. Alternatively, EPA may certify flares that the rule will not have a significant List of Subjects in 40 CFR Part 52 • Source testing impact on a substantial number of small • Requires monitoring, entities. Small entities include small Environmental protection, Air recordkeeping, and reporting businesses, small not-for-profit pollution control, Hydrocarbons, For a detailed evaluation of SBCAPCD enterprises and government entities Incorporation by reference, Rule 359, please refer to the technical with jurisdiction over populations of Intergovernmental relations, Ozone, support document (TSD) dated March less than 50,000. Reporting and recordkeeping 20, 1996. SIP approvals under section 110 do requirements, Volatile organic EPA has evaluated the submitted rule not create any new requirements, but compounds. simply approve requirements that the and has determined that it is consistent Note: Incorporation by reference of the State is already imposing. Therefore, with the goals of the Act, the State Implementation Plan for the State of requirements of 110(a), and EPA policy. because the Federal SIP-approval does California was approved by the Director of Therefore, SBCAPCD Rule 359, Flares not impose any new requirements, I the Federal Register on July 1, 1982. certify that it does not have a significant and Thermal Oxidizers is being Dated: April 18, 1996. approved into the federally approved impact on any small entities affected. Moreover, due to the nature of the Felicia Marcus, SIP because of its beneficial effect on Regional Administrator. the air quality in the Santa Barbara Federal-state relationship under the County area and its strengthening of the CAA, preparation of a regulatory Subpart F of part 52, Chapter I, title SIP. flexibility analysis would constitute 40 of the Code of Federal Regulations is Nothing in this action should be Federal inquiry into the economic amended as follows: construed as permitting or allowing or reasonableness of state action. The CAA establishing a precedent for any future forbids EPA to base its actions PART 52Ð[AMENDED] implementation plan. Each request for concerning SIPs on such grounds. revision to the state implementation Union Electric Co. v. U.S. E.P.A., 427 1. The authority citation for part 52 plan shall be considered separately in U.S. 246, 256–66 (S. Ct. 1976); 42 U.S.C. continues to read as follows: light of specific technical, economic, 7410 (a)(2). Authority: 42 U.S.C. 7401–7671q. and environmental factors and in Unfunded Mandates relation to relevant statutory and Under Sections 202, 203, and 205 of Subpart FÐCalifornia regulatory requirements. the Unfunded Mandates Reform Act of EPA is publishing this notice without 1995 (‘‘Unfunded Mandates Act’’), 2. Section 52.220 is amended by prior proposal because the Agency signed into law on March 22, 1995, EPA adding paragraph (c)(198)(i)(K)(2) to views this as a noncontroversial must undertake various actions in read as follows: amendment and anticipates no adverse association with proposed or final rules § 52.220 Identification of plan. comments. However, in a separate that include a Federal mandate that may document in this Federal Register result in estimated costs of $100 million * * * * * publication, the EPA is proposing to or more to the private sector or to State, (c) * * * local, or tribal governments in the 1 (198) * * * EPA adopted the completeness criteria on aggregate. February 16, 1990 (55 FR 5830) and, pursuant to (i) * * * section 110(k)(1)(A) of the CAA, revised the criteria These rules may bind State, local, and on August 26, 1991 (56 FR 42216). tribal governments to perform certain (K) * * * Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20455

(2) Rule 359, adopted on June 28, address: (It is recommended that you rules for sources covered by a post- 1994. telephone Steven Rosenthal at (312) enactment CTG in accordance with a * * * * * 886–6052 before visiting the Region 5 schedule specified in a CTG document. [FR Doc. 96–11204 Filed 5–6–96; 8:45 am] office.) U.S. Environmental Protection Accordingly, States must submit a Agency, Region 5, Air and Radiation BILLING CODE 6560±50±P RACT rule for SOCMI reactor processes Division, 77 West Jackson Boulevard, and distillation operations before March Chicago, Illinois 60604. 23, 1995. Illinois has submitted a rule, 40 CFR Part 52 FOR FURTHER INFORMATION CONTACT: covering these SOCMI sources, which Steven Rosenthal, Air Programs Branch [IL18±7±7024a; FRL±5436±1] will be the subject of a separate (AR–18J) (312) 886–6052. rulemaking action. Approval and Promulgation of SUPPLEMENTARY INFORMATION: The USEPA developed a CTG Implementation Plan; Illinois Background document as Appendix E to the General AGENCY: United States Environmental Preamble for the Implementation of Under the Act as amended in 1977, Title I of the Clean Air Act Amendments Protection Agency (USEPA). ozone nonattainment areas were of 1990. (57 FR 18070, 18077, April 28, ACTION: Direct final rule. required to adopt reasonably available 1992). In Appendix E, USEPA control technology (RACT) for sources SUMMARY: On October 21, 1993, the interpreted the Act to allow a State of VOC emissions. USEPA issued three Illinois Environmental Protection (IEPA) either to submit a non-CTG rule by sets of control technique guidelines submitted to USEPA volatile organic (CTGs) documents, establishing a November 15, 1992, or to defer compound (VOC) rules that were ‘‘presumptive norm’’ for RACT for submittal of a RACT rule for sources intended to satisfy part of the various categories of VOC sources. The that the State anticipated would be requirements of section 182(b)(2) of the three sets of CTGs were (1) Group I— covered by a post-enactment CTG, based Clean Air Act (Act) amendments of issued before January 1978 (15 CTGs); on the list of CTGs USEPA expected to 1990. Rules submitted at that time (2) Group II—issued in 1978 (9 CTGs); issue to meet the requirement in section include control requirements for certain and (3) Group III—issued in the early 183. Appendix E states that if USEPA major sources in the East St. Louis 1980’s (5 CTGs). Those sources not fails to issue a CTG by November 15, nonattainment area not covered by a covered by a CTG were called non-CTG 1993 (which it did for 11 source Control Technique Guideline (CTG) sources. USEPA determined that the categories), the responsibility shifts to document. These major non-CTG VOC area’s SIP-approved attainment date the State to submit a non-CTG RACT rules apply to sources which emit (at established which RACT rules the area rule for those sources by November 15, maximum capacity) 100 tons of VOC per needed to adopt and implement. Those 1994. In accordance with section year. These rules provide an areas (including the East St. Louis area) 182(b)(2), implementation of that RACT environmental benefit due to the that sought an extension of the rule should occur by May 31, 1995. imposition of additional control attainment date under section 172(a)(2) Most of these 11 categories are covered requirements. This rulemaking action to as late as December 31, 1987, were by Illinois’ ‘‘generic’’ major non-CTG approves, in final, Illinois’ rules for required to adopt RACT for all CTG rules that are the subject of this major non-CTG sources in the East St. sources and for all major (100 tons per Louis nonattainment area. The rationale document. year or more of VOC emissions) non- for the conditional approval is set forth On October 21, 1993, IEPA submitted CTG sources. in this final rule; additional information VOC rules for the East St. Louis ozone Section 182(b)(2) of the Act as 1 is available at the address indicated amended in 1990 (amended Act) moderate nonattainment area and a below. Elsewhere in this Federal requires States to adopt reasonably revision to these major non-CTG control Register, USEPA is proposing approval available control technology (RACT) requirements was submitted to USEPA of and soliciting public comment on this rules for all areas designated on May 26, 1995. Most of those rules, requested revision to the Illinois State nonattainment for ozone and classified including those which deal with source Implementation Plan (SIP). If adverse as moderate or above. There are three categories covered by CTGs, (and the comments are received on this direct parts to the section 182(b)(2) RACT related test methods, definitions and final rule, USEPA will withdraw the requirement: (1) RACT for sources recordkeeping requirements) were final rule and address the comments covered by an existing CTG—i.e., a CTG approved by USEPA on September 9, received in a new final rule. Unless this issued prior to the enactment of the 1994 (59 FR 46562). This document final rule is withdrawn, no further amended Act of 1990; (2) RACT for deals with those major non-CTG rules rulemaking will occur on this requested sources covered by a post-enactment for the East St. Louis area which are SIP revision. CTG; and (3) RACT for all major sources intended to largely satisfy the major DATES: This final rule is effective July 8, not covered by a CTG. These section non-CTG control requirements of 1996 unless adverse comments are 182(b)(2) RACT requirements are sections 182(a)(2)(A) and 182(b)(2). received by June 6, 1996. If the effective referred to as the RACT ‘‘catch-up’’ However, this October 21, 1993, date is delayed, timely notice will be requirements. submittal exempts bakeries and sewage published in the Federal Register. The amended Act requires USEPA to treatment plants from these major non- ADDRESSES: Written comments can be issue CTGs for 13 source categories by CTG regulations. Major non-CTG mailed to: J. Elmer Bortzer, Chief, November 15, 1993. A CTG was regulations are, therefore, required for Regulation Development Section, Air published by this date for two source any major bakeries and industrial Programs Branch (AR–18J), Air and categories—Synthetic Organic Chemical wastewater treatment plants in the East Radiation Division, U.S. Environmental Manufacturing Industry (SOCMI) St. Louis area. Protection Agency, 77 West Jackson Reactors and Distillation; however, the Boulevard, Chicago, Illinois 60604. CTGs for the remaining source 1 The East St. Louis moderate ozone Copies of the SIP revision request are categories have not been completed. The nonattainment area consists of Madison, Monroe, available for inspection at the following amended Act requires States to submit and St. Clair counties. 20456 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

Evaluation of Rules VOC emissions of at least 81 percent it determines that a permit is not Subparts PP, QQ, RR and TT in Part from each emission unit, or (2) For quantifiable or practically enforceable or 219 consist of ‘‘generic’’ major non-CTG coating lines, the daily-weighted a permit relaxes the SIP. The underlying rules for sources, in the East St. Louis average VOC content shall not exceed SIP, to which any equivalent alternative ozone nonattainment area, not 3.5 pounds (lbs) VOC per gallon (gal) of control plan would be compared, has specifically covered by another rule. coating, or (3) an equivalent alternative federally enforceable control Compliance with these rules was control plan which has been approved requirements, test methods, and required by May 15, 1992. These rules by the Agency and the USEPA in a recordkeeping and reporting are generally consistent with the federally enforceable permit or as a SIP requirements. In addition, a September Chicago Federal Implementation Plan revision. 13, 1995, letter from IEPA contains the On December 17, 1992, (57 FR 59928) specific procedures for USEPA review that was promulgated by USEPA on USEPA approved Illinois’ existing and approval. June 29, 1990 (55 FR 26818) and Operating Permit program as satisfying Subsections 219.620(a)(1)(B), codified at 40 CFR § 52.741, and/or USEPA’s June 28, 1989, (54 FR 27274) 219.920(a)(2), 219.940(a)(2), USEPA RACT guidance. The discussion five criteria regarding Federal 219.960(a)(2), and 219.980(a)(2) allow below clarifies certain aspects of these enforceability. One of the criteria is that sources to avoid the applicability of non-CTG rules, including parts of these permits may not be issued that make specified major non-CTG rules, rules that differ from previously less stringent any SIP limitation or provided a source has a federally approved ‘‘generic’’ non-CTG VOC requirement. USEPA’s December 17, enforceable permit that limits emissions rules. 1992, notice states that operating to below the applicable cutoff through Sections 926, 946, 966, and 986 capacity or production limitations. specify the control requirements for the permits issued by Illinois in conformance with the five criteria These subsections are approvable rules. Subsection (a) of each of these because USEPA can deem a permit to be Sections requires an overall 81 percent (including the prohibition against States issuing operating permit limits less ‘‘not federally enforceable’’ in a letter to reduction from each emission unit. An IEPA. Upon issuance of such a letter, (Illinois Pollution Control) Board Note stringent than the regulations in the SIP) discussed in this notice will be the source is no longer protected by the has been added to each subsection to permit referenced in the subject clarify what is intended by the term considered federally enforceable. This notice also states Illinois’ operating subsections. The source would then be ‘‘emission unit.’’ A further clarification subject to the SIP requirements if its of the Board Note has been provided in permit program allows USEPA to deem an operating permit not ‘‘federally emissions exceed the applicable cutoff. a June 16, 1993, letter from Dennis This is consistent with USEPA’s Lawler, IEPA. enforceable.’’ On July 21, 1992, USEPA December 17, 1992, approval of Illinois’ Subparts PP, QQ, RR and TT do not promulgated a new part 70 of chapter 1 operating permit program which states: apply to sources that are not major (that of title 40 of the Code of Federal ‘‘In approving the State operating is, emit less than 100 tons VOC per year Regulations. See 57 FR 32250. Part 70 program USEPA is determining that at maximum capacity) and exempt contains regulations, required by Title V Illinois’ program allows USEPA to deem emission units with less than 1 ton VOC of the Act, that specify the minimum an operating permit not ‘federally per year or 2.5 tons VOC per year elements of State operating permit enforceable’ for purposes of limiting (depending upon the subpart) if the total programs. Part 70 is, therefore, an potential to emit and to offset emissions from such emission units do appropriate basis for evaluating the creditability.’’ (57 FR 59928, 59930). not exceed 5 tons VOC per year. Subpart acceptability of Illinois’ use of federally IEPA has agreed to this approach and UU contains the recordkeeping and enforceable State operating permits specified the applicable procedures in a reporting requirements for the non-CTG (FESOP) and Title V permits in its VOC March 26, 1993, letter to USEPA. In requirements in Subparts PP, QQ, RR, rules. summary, these subsections are and TT and Section 219.990 (in Subpart Section 70.6(a)(1)(iii) states: approvable because USEPA can UU) contains the recordkeeping and invalidate the protection provided by an reporting requirements for exempt If an applicable implementation plan operating permit by deeming such emission units. Although Section allows a determination of an alternative operating permit to be ‘‘not federally emission limit at a part 70 source, equivalent 219.990 refers to emission units which enforceable’’ in a letter to IEPA. are exempt, it should be noted that the to that contained in the plan, to be made in the permit issuance, renewal, or significant Final Rulemaking Action owner or operator of an emission unit modification process, and the State elects to which is exempt because the source is use such process, any permit containing such For the reasons discussed above, not major would need to submit records equivalency determination shall contain USEPA approves the major non-CTG for the entire source to demonstrate that provisions to ensure that any resulting VOC RACT rules in Part 219 (for the maximum theoretical emissions from all emissions limit has been demonstrated to be East St. Louis ozone nonattainment non-CTG and unregulated CTG quantifiable, accountable, enforceable, and area) that were submitted on October 21, operations are below the applicable based on replicable procedures. 1993 and May 26, 1995. cutoff. In those cases where one or more USEPA has therefore determined that Because USEPA considers this action (but not all) emission units are exempt the option for alternative control plans, noncontroversial and routine, we are (as in 219.920(c), 219.940(c), 219.960(c), submitted on October 21, 1993 (with a approving it without prior proposal. The and 219.980(c)), records must be revision submitted on May 26, 1995), in action will become effective on July 8, submitted documenting that each such subsections 219.926(c), 219.946(b), 1996. However, if we receive adverse emission unit is exempt. 219.966(b), and 219.986(c), is comments by June 6, 1996, then USEPA Illinois’ major non-CTG VOC rules in approvable because it requires that any will publish a document that withdraws Subparts PP, QQ, RR, and TT require alternative must be equivalent to the this final action. If no request for a applicable sources to comply with one underlying SIP requirements (consistent public hearing has been received, of the following: (1) Emission capture with part 70) and USEPA can deem a USEPA will address the public and control techniques which achieve permit containing an alternative control comments received in a new final rule an overall reduction in uncontrolled plan to be not ‘‘federally enforceable’’ if on the requested SIP revision based on Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20457 the proposed rule located in the the selection of this alternative is List of Subjects in 40 CFR Part 52 proposed rules section of this Federal inconsistent with law. Environmental protection, Air Register. If a public hearing is Because this final rule is estimated to pollution control, Hydrocarbons, requested, USEPA will publish a result in the expenditure by State, local, Incorporation by reference, document announcing a public hearing and tribal governments or the private Intergovernmental relations, Ozone, and reopening the public comment sector of less then $100 million in any Reporting and recordkeeping period until 30 days after the public one year, the USEPA has not prepared requirements. hearing. At the conclusion of this a budgetary impact statement or additional public comment period, specifically addressed the selection of Dated: February 7, 1996. USEPA will publish a final rule the least costly, most cost-effective, or David A. Ullrich, responding to the public comments least burdensome alternative. Because Acting Regional Administrator. received and announcing final action. small governments will not be For the reasons stated in the This action has been classified as a significantly or uniquely affected by this preamble, part 52, chapter I, title 40 of Table 3 action by the Regional rule, the USEPA is not required to the Code of Federal Regulations is Administrator under the procedures develop a plan with regard to small amended as follows: published in the Federal Register on governments. This rule only approves January 19, 1989 (54 FR 2214–2225), as the incorporation of existing state rules PART 52Ð[AMENDED] revised by an October 4, 1993, into the SIP. It imposes no additional 1. The authority citation for part 52 memorandum from Michael H. Shapiro, requirements. continues to read as follows: former Acting Assistant Administrator Under the Regulatory Flexibility Act, for the Office of Air and Radiation. A 5 U.S.C. 600 et seq., USEPA must Authority: 42 U.S.C. 7401 7671q. July 10, 1995, memorandum from Mary prepare a regulatory flexibility analysis Subpart OÐIllinois D. Nichols, Assistant Administrator for assessing the impact of any proposed or the Office of Air and Radiation explains final rule on small entities. (5 U.S.C. 603 2. Section 52.720 is amended by that the authority to approve/disapprove and 604.) Alternatively, USEPA may adding paragraph (c)(127) to read as SIPs has been delegated to the Regional certify that the rule will not have a follows: Administrators for Table 3 actions. The significant impact on a substantial Office of Management and Budget has number of small entities. Small entities § 52.720 Identification of plan. exempted this regulatory action from include small businesses, small not-for- * * * * * Executive Order 12866 review. profit enterprises, and government (c) * * * Nothing in this action should be entities with jurisdiction over (127) On October 21, 1993, and May construed as permitting, allowing or populations of less than 50,000. 26, 1995, Illinois submitted volatile establishing a precedent for any future SIP approvals under section 110 and organic compound control regulations request for revision to any SIP. USEPA subchapter I, part D of the Clean Air Act for incorporation in the Illinois State shall consider each request for revision do not create any new requirements, but Implementation Plan for ozone. to the SIP in light of specific technical, simply approve requirements that the (i) Incorporation by reference. economic, and environmental factors State is already imposing. Therefore, (A) Illinois Administrative Code Title and in relation to relevant statutory and because the Federal SIP-approval does 35: Environmental Protection, Subtitle regulatory requirements. not impose any new requirements, I B: Air Pollution, Chapter I: Pollution Section 202 of the Unfunded certify that it does not have a significant Control Board, Subchapter c: Emissions Mandates Reform Act of 1995 impact on any small entities affected. Standards and Limitations for (‘‘Unfunded Mandates Act’’) (signed Moreover, due to the nature of the Stationary Sources, Part 219: Organic into law on March 22, 1995) requires Federal-State relationship under the Material Emissions Standards and that the USEPA prepare a budgetary Act, preparation of a regulatory Limitations for Metro East Area, Subpart impact statement before promulgating a flexibility analysis would constitute PP: 219.920, 219.923, 219.927, 219.928; rule that includes a Federal mandate Federal inquiry into the economic Subpart QQ: 219.940, 219.943, 219.947, that may result in expenditure by State, reasonableness of the State action. The 219.948; Subpart RR: 219.960, 219.963, local, and tribal governments, in Clean Air Act forbids USEPA to base its 219.967, 219.968; Subpart TT: 219.980, aggregate, or by the private sector, of actions concerning SIPs on such 219.983, 219.987, 219.988; and Subpart $100 million or more in any one year. grounds. Union Electric Co. v. USEPA., UU. These Subparts were adopted on Section 203 requires the USEPA to 427 U.S. 246, 256–66 (S.Ct. 1976); 42 September 9, 1993, Amended at 17 Ill. establish a plan for obtaining input from U.S.C. 7410(a)(2). Reg. 16918, effective September 27, 1993. and informing, educating, and advising Under section 307(b)(1) of the Clean (B) Illinois Administrative Code Title any small governments that may be Air Act, petitions for judicial review of 35: Environmental Protection, Subtitle significantly or uniquely affected by the this action must be filed in the United B: Air Pollution, Chapter I: Pollution rule. States Court of Appeals for the Control Board, Subchapter c: Emissions Under section 205 of the Unfunded appropriate circuit by July 8, 1996. Standards and Limitations for Mandates Act, the USEPA must identify Filing a petition for reconsideration by Stationary Sources, Part 219: Organic and consider a reasonable number of the Administrator of this final rule does Material Emissions Standards and regulatory alternatives before not affect the finality of this rule for the Limitations for Metro East Area, Subpart promulgating a rule for which a purposes of judicial review nor does it PP: 219.926; Subpart QQ: 219.946; budgetary impact statement must be extend the time within which a petition Subpart RR: 219.966; and Subpart TT: prepared. The USEPA must select from for judicial review may be filed, and 219.986. These Subparts were adopted those alternatives the least costly, most shall not postpone the effectiveness of on April 20, 1995, Amended at 19 Ill. cost-effective, or least burdensome such rule or action. This action may not Reg. 6958, effective May 9, 1995. alternative that achieves the objectives be challenged later in proceedings to of the rule, unless the USEPA explains enforce its requirements. (See Section [FR Doc. 96–11202 Filed 5–6–96; 8:45 am] why this alternative is not selected or 307(b)(2)). BILLING CODE 6560±50±P 20458 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

40 CFR Parts 52 and 81 Region 5, Chicago, Illinois 60604, (312) attained the standard, the stated 886–6058. purpose of the RFP requirement will [OH92±1 & OH79±3; FRL±5458±8] have already been fulfilled and USEPA SUPPLEMENTARY INFORMATION: Approval and Promulgation of does not believe that the area need Determination of Attainment Implementation Plans and Designation submit revisions providing for the of Areas for Air Quality Planning I. Background further emission reductions described in Purposes; Ohio the RFP provisions of section 182(b)(1). Subpart 2 of Part D of Title I of the The USEPA notes that it took this AGENCY: Environmental Protection CAA contains various air quality view with respect to the general RFP Agency (USEPA). planning and state implementation plan requirement of section 172(c)(2) in the (SIP) submission requirements for ozone ACTION: Final rule. General Preamble for the Interpretation nonattainment areas. The USEPA of Title I of the Clean Air Act SUMMARY: The USEPA is determining believes it is reasonable to interpret Amendments of 1990 (57 FR 13498 that the Cleveland-Akron-Lorain (CAL) provisions regarding RFP and (April 16, 1992)), and it is now ozone nonattainment area (which attainment demonstrations, along with extending that interpretation to the includes the Counties of Ashtabula, certain other related provisions, so as specific provisions of subpart 2. In the Cuyahoga, Geauga, Lake, Lorain, not to require SIP submissions if an General Preamble, USEPA stated, in the Medina, Portage and Summit) has ozone nonattainment area subject to context of a discussion of the attained the public health-based those requirements is monitoring requirements applicable to the National Ambient Air Quality Standard attainment of the ozone standard (i.e., evaluation of requests to redesignate (NAAQS) for ozone. This determination attainment of the NAAQS demonstrated nonattainment areas to attainment, that is based upon three years of complete, with three consecutive years of the ‘‘requirements for RFP will not quality-assured, ambient air monitoring complete, quality-assured, air quality apply in evaluating a request for data for the 1993 to 1995 ozone seasons monitoring data). As described below, redesignation to attainment since, at a that demonstrate that the ozone NAAQS USEPA has previously interpreted the minimum, the air quality data for the has been attained in each of these areas. general provisions of subpart 1 of part area must show that the area has already On the basis of this determination, D of Title I (sections 171 and 172) so as attained. Showing that the State will USEPA is also determining that certain not to require the submission of SIP make RFP towards attainment will, reasonable-further-progress (RFP) and revisions concerning RFP, attainment therefore, have no meaning at that attainment demonstration requirements, demonstrations, or contingency point.’’ (See 57 FR at 13564) 2 along with certain other related measures. As explained in a Second, with respect to the requirements, of Part D of Title 1 of the memorandum from John S. Seitz, attainment demonstration requirements Clean Air Act (CAA) are not applicable Director, Office of Air Quality Planning of Section 182(b)(1), an analogous to the Cleveland-Akron-Lorain area. and Standards, entitled ‘‘Reasonable rationale leads to the same result. In another part of this rulemaking, the Further Progress, Attainment Section 182(b)(1) requires that the plan USEPA is approving the Ohio Demonstration, and Related provide for ‘‘such specific annual Environmental Protection Agency Requirements for Ozone Nonattainment reductions in emissions * * * as (OEPA) request to revise the official Areas Meeting the Ozone National necessary to attain the national primary designation of the Cleveland-Akron- Ambient Air Quality Standard,’’ dated ambient air quality standard by the Lorain (CAL) area as an area that is May 10, 1995, USEPA believes it is attainment date applicable under this meeting the ozone air quality standard. appropriate to interpret the more Act.’’ As with the RFP requirements, if The USEPA is also approving the CAL specific RFP, attainment demonstration an area has in fact monitored attainment area maintenance plan as a revision to and related provisions of subpart 2 in of the standard, USEPA believes there is Ohio’s State Implementation Plan (SIP) the same manner. no need for an area to make a further for ozone. The purpose of the First, with respect to RFP, section submission containing additional maintenance plan is to provide for 171(1) of the CAA states that, for measures to achieve attainment. This is continued good ozone air quality levels purposes of part D of Title I, RFP also consistent with the interpretation of in the area over the next 10 years. ‘‘means such annual incremental certain section 172(c) requirements reductions in emissions of the relevant EFFECTIVE DATE: This final rule is provided by USEPA in the General air pollutant as are required by this part Preamble to Title I. As USEPA stated in effective on May 7, 1996. or may reasonably be required by the ADDRESSES: Copies of the determination the Preamble, no other measures to Administrator for the purpose of provide for attainment would be needed of attainment, redesignation requests, ensuring attainment of the applicable public comments on the rulemaking, by areas seeking redesignation to NAAQS by the applicable date.’’ Thus, attainment since ‘‘attainment will have and other materials relating to this whether dealing with the general RFP rulemaking are available for inspection been reached.’’ (57 FR at 13564; see also requirement of section 172(c)(2), or the September 1992 Calcagni memorandum at the following address: (It is more specific RFP requirements of recommended that you telephone subpart 2 for classified ozone William Jones at (312) 886–6058, before both the 15 percent plan requirement of section nonattainment areas (such as the 15 182(b)(1) and the 3 percent per year requirement of visiting the Region 5 Office.) United percent plan requirement of section section 182(c)(2) are specific varieties of RFP States Environmental Protection 182(b)(1)), the stated purpose of RFP is requirements. Agency, Region 5, Air and Radiation to ensure attainment by the applicable 2 See also ‘‘Procedures for Processing Requests to Division, 77 West Jackson Boulevard 1 Redesignate Areas to Attainment,’’ from John attainment date. If an area has in fact Calcagni, Director, Air Quality Management (AR–18J), Chicago, Illinois 60604. Division, to Regional Air Division Directors, FOR FURTHER INFORMATION ON THIS ACTION 1 USEPA notes that paragraph (1) of subsection September 4, 1992, at page 6 (stating that the CONTACT: William Jones, Air Programs 182(b) is entitled ‘‘PLAN PROVISIONS FOR ‘‘requirements for reasonable further progress * ** REASONABLE FURTHER PROGRESS’’ and that will not apply for redesignations because they only Branch, Regulation Development subparagraph (B) of paragraph 182(c)(2) is entitled have meaning for areas not attaining the standard’’) Section (AR–18J), United States ‘‘REASONABLE FURTHER PROGRESS (hereinafter referred to as ‘‘September 1992 Environmental Protection Agency, DEMONSTRATION,’’ thereby making it clear that Calcagni memorandum’’). Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20459 at page 6). Upon attainment of the for 1995 shows no new exceedances of (1) Response: The issue of transported NAAQS, the focus of state planning the ozone NAAQS were monitored in emissions is not relevant to this efforts shifts to the maintenance of the the Cleveland-Akron-Lorain area. rulemaking action. The purpose of the NAAQS and the development of a On the basis of this review, USEPA requirements of section 182(b)(1) maintenance plan under Section 175A. determines that the area has attained the concerning reasonable further progress Similar reasoning applies to other ozone standard during the 1993–95 and attainment demonstration and the related provisions of subpart 2. The first period, which is the most recent three- contingency measure requirements of of these are the contingency measure year time period of air quality section 172(c)(9) as they apply to CAL requirements of section 172(c)(9) of the monitoring data, and therefore are not is not to address emissions from that Act. The USEPA has previously required to submit a 15% emissions area that may cause or contribute to air interpreted the contingency measure reduction plan, attainment quality problems in downwind areas. requirement of section 172(c)(9) as no demonstration, and a section 172(c)(9) The purpose of those requirements as longer being applicable once an area has contingency measure plan. See the June they apply to CAL is to achieve attained the standard since those 29, 1995, proposed rulemaking attainment of the standard in that area. ‘‘contingency measures are directed at published in the Federal Register at 60 The issue of transported emissions is ensuring RFP and attainment by the FR 31433. dealt with by other provisions of the applicable date.’’ (57 FR at 13564; see Public Comment/USEPA Response Act, provisions that are not the subject also September 1992 Calcagni of this rulemaking action. USEPA has memorandum at page 6). These are the comments and authority, and the state has an The State must continue to operate an responses that relate to the obligation, under section 110(a)(2)(A) appropriate air quality monitoring determination of attainment for the (in the case of intrastate areas) and network, in accordance with 40 CFR Cleveland-Akron-Lorain area. section 110(a)(2)(D) (in the case of part 58, to verify the attainment status Comments that were received in support interstate areas), to address transported of the area. The air quality data relied of the determination are not emissions from upwind areas that upon to determine that the area is summarized below; only the adverse significantly contribute to air quality attaining the ozone standard must be comments are summarized and problems in downwind areas. The consistent with 40 CFR part 58 responses are provided to these determination being made in this requirements and other relevant USEPA comments. No further action will be rulemaking is that, as CAL has attained guidance and recorded in USEPA’s— taken on the determination of the ozone standard, certain additional Aerometric Information Retrieval attainment for the Dayton and Toledo Act requirements whose purpose is to System (AIRS). areas since those areas have already achieve attainment in the area do not The determinations made in this been redesignated to attainment. In a apply to them. That determination does notice do not shield an area from future later part of this rulemaking comments not mean that the area might not have USEPA action to require emissions and responses are provided on the to achieve additional reductions reductions from sources in the area ozone redesignation request for the CAL pursuant to other provisions of the Act where there is evidence, such as area. Because of the potential for if it is determined in the future that such photochemical grid modeling, showing overlap of comments received on the reductions are necessary to deal with that emissions from sources in the area issue of the determination of attainment transport from the CAL area to contribute significantly to and the redesignation, USEPA hereby downwind areas. nonattainment in, or interfere with incorporates by reference the responses Currently, the issue of transported maintenance by, any other States with contained in the section below on ozone and ozone precursors is being respect to the NAAQS (see section redesignation to the extent that they addressed by the Ozone Transport 110(a)(2)(D)). The USEPA has authority bear on the issues involved in the Assessment Group (OTAG) which is under sections 110(a)(2)(A) and determination of attainment, and vice composed of Industry, Environmental 110(a)(2)(D) of the Act to require such versa. To the extent that comments can Groups, Federal Government, State emission reductions if necessary and be construed to bear on both rulemaking Governments (including the State of appropriate to deal with transport actions, responses should be construed Ohio), and Local Governments from the situations. to pertain to both. Midwest and Eastern Regions. OTAG is (1) Comment: The determination performing ozone modeling to Analysis of Air Quality Data action has been inappropriately determine how ozone transport can be The USEPA has reviewed the ambient segregated from the section 110(a)(2)(D) addressed on a regional basis. After this air monitoring data for ozone (consistent petition submitted by the State of New assessment is completed, The United with the requirements contained in 40 York which requested the Federal States Environmental Protection Agency CFR part 58 and recorded in AIRS) for government to assess the (USEPA) anticipates using its authority the Cleveland-Akron-Lorain ozone implementation plans of upwind states under sections 110(a)(2)(A) and nonattainment area in Ohio from the to determine their contribution to 110(a)(2)(D) of the Act to require 1992 through 1995 ozone seasons. The nonattainment in the State of New York. emissions reductions where appropriate following ozone exceedances were Regional Oxidant Modeling indicates based on this assessment and any other recorded for the period from 1993 to that areas to the west of the State of New relevant information. 1995 (and the average number of York, including the State of Ohio, (2) Comment: The determination of expected exceedances for this three-year contribute to violations of the ozone attainment fails to meet the purpose, period is also presented): NAAQS in the northeast United States, intent and spirit of the Clean Air Act by Cleveland-Akron-Lorain: Medina including the State of New York. not protecting and enhancing the County, 6364 Deerview Lane (1994)— Therefore these areas should continue to quality of the Nation’s air resources so 0.127 parts per million (ppm); average meet the statutory reasonable further as to promote the public health and expected exceedances: 0.3. Cuyahoga progress requirements set forth in the welfare and the productive capacity of County, 891 E. 152 St. (1993)—0.126 Clean Air Act, at least until the State of its population. The ozone standard has ppm, (1994) 0.127 ppm and 0.125 ppm; New York’s section 110(a)(2)(D) request been shown to be inadequate to protect average expected exceedances: 1.0. Data has been acted on. public health. The American Lung 20460 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

Association has provided ample (3) Response: Nothing requires that all reasonable further progress and evidence and new studies continue to of the SIP revisions submitted by the contingency measures, unnecessary. confirm this. It is very clear to many State be reviewed together. The CAA USEPA’s May 10 memorandum set people living here that the air is has differing submittal dates for the SIPs forth USEPA’s interpretation of the polluted and adversely affecting and requires USEPA to act on each requirements of CAA sections 172(c)(9) people’s health. Furthermore, no one within a specific time period of its and 182(b)(1)(A), with respect to ozone has demonstrated that the bad air and submittal. This would probably not nonattainment areas that have achieved high pollution levels in Ohio’s allow adequate time for USEPA to the ozone NAAQS. USEPA explained nonattainment areas are not adversely process all of the submittals at once, that because the purpose of those affecting the health of those downwind. given that some of the submittals were requirements has already been fulfilled (2) Response: The determination of submitted years apart from each other. for areas that have attained the standard, attainment is based on ozone Where possible USEPA has sought to the requirements do not apply to those monitoring data collected in the consolidate responses to submittals but areas for as long as they stay in Cleveland-Akron-Lorain area. These the CAA is not always conducive to this attainment. It further explained that this data continue to show that the area has approach. The determination of interpretation is consistent with attained the standard. In a separate part attainment is not the same as a USEPA’s interpretation of the general of this rulemaking the ozone redesignation to attainment, and reasonable further progress redesignation request is discussed. This therefore the requirements of section requirements and section 172(c)(9) request contains a maintenance plan 107, which apply to redesignations to contingency measure requirements with which will provide for continued attainment are not applicable. See also respect to redesignation requests as set maintenance of the standard into the the response to comments below. The forth in its General Preamble, and with future. The maintenance plan is determination of attainment is only related USEPA guidance on the unaffected by the determination of based on the area’s ozone monitoring procedures to be used when USEPA is attainment that finds that the 15% plan, data. USEPA has decided to address the processing redesignation requests. attainment demonstration, and section determination of attainment and the USEPA has concluded that Congress 172(c)(9) contingency measures are no State’s ozone redesignation request for included the 15 percent plan as a longer required. Cleveland-Akron-Lorain together in this specification of ‘‘reasonable further USEPA is also reviewing the current Federal Register action. This progress’’. Section 182(b)(1) is entitled ozone standard to see whether it should rulemaking does not circumvent the ‘‘Plan provisions for reasonable further be revised in order to better protect the redesignation requirements. See the progress.’’ The heading’s reference to public health. Until the current NAAQS discussion in the redesignation ‘‘reasonable further progress’’ indicates is revised, the current NAAQS of .12 rulemaking, below, and in USEPA’s Congress’ overall intent in enacting the Responses to Comments in its parts per million is the appropriate provision. The term ‘‘reasonable further Determination of Attainment of Ozone standard against which to assess plans progress’’ is defined as ‘‘such annual Standard for Salt Lake and Davis and measure attainment. incremental reductions in emissions of Counties, Utah 60 FR 36723 (July 18, (3) Comment: The piecemeal the relevant air pollutant as are required 1995). USEPA in this portion of the approach which USEPA is taking to by this part or may reasonably be rulemaking, its determination of ozone attainment and redesignation is required by (USEPA) for the purpose of attainment, is simply making a factual promoting backsliding and encouraging ensuring attainment of the applicable determination that since CAL is doing the least possible to protect public (NAAQS) by the applicable date.’’ 42 attaining the standard, certain U.S.C. section 7501(l). This definition health and actually clean up the air. A provisions of the CAA, whose express holistic approach to solving purpose is to achieve attainment of the applies for ‘‘the purposes of * * * part’’ environmental problems is always standard, do not require SIP revisions. D of Title I of the CAA, which includes needed. This is no exception. Reviewing In the redesignation portion of this section 182(b). Id. Thus, the term emissions inventories in one rulemaking, USEPA explains its basis ‘‘reasonable further progress’’ requires rulemaking, NOX in another, the SIP in for concluding that CAL has met the only such reductions in emissions as are another, Reasonable Further Progress in requirements of section 107 for necessary to attain the NAAQS by the another, transportation modeling in redesignation to attainment. attainment date and no more. 42 U.S.C. another, etc. is a methodology which With respect to the determination of section 7501(l). Accordingly, USEPA effectively puts blinders on and attainment, USEPA set forth in the June has interpreted section 182(b)(1)(A)(I) prevents complete analysis of 29, 1995 notices on CAL its basis for consistent with the statutory definition interdependence aspects. Furthermore interpreting certain CAA requirements of ‘‘reasonable further progress’’ and this piecemeal approach is an out-of- as inapplicable to an area that is with section 182(b)(1)(A)(I)’s express sequence, illogical process. attaining the ozone standard. purpose of assuring progress to bring USEPA must first determine if This interpretation is consistent with violating areas into attainment. If an attainment has been reached in USEPA’s General Preamble for the area has in fact attained the standard, accordance with the Clean Air Act’s Implementation of Title I of the Clean the stated purpose of the RFP redesignation criteria given in section Air Act Amendments of 1990 (‘‘General requirement will have already been 107. Without ascertaining that Preamble’’), 57 FR 13,498 (April 16, fulfilled and USEPA does not believe attainment has actually been reached it 1992), which directly addressed that the area need submit revisions is premature to alleviate the requirements for redesignations. Id. at providing for the further emissions requirements for further controls or 13,561–64. USEPA interpreted the reductions described in section Reasonable Further Progress. It appears general reasonable further progress 182(b)(1). that USEPA is only applying the first requirement and contingency measures The legislative history expressly redesignation requirement that the area as not applying to redesignation supports USEPA’s interpretation of has attained the NAAQS and ignoring requests because an area must have section 182(b)(1)(A)(I). In describing the the other requirements for redesignation attained the standard before it could be 15 percent plan, the House Report and proceeding to relax the standards. redesignated to attainment, making stated: Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20461

The emissions reductions called for in this Ohio in 1988 or thus far in 1995 is not measures, and USEPA believes it is subsection * * * provide a concrete all that unusual. Even higher appropriate to interpret the ozone- translation of how much an area must do to temperature have been recorded. It can specific provisions of subpart 2 in the achieve ‘‘reasonable further progress’’ toward be expected that there will be more same manner. This is further discussed attainment of the standards, as required in exceedances, unless there are reductions under section I covering the background section 172 and defined in section 171. Areas that fail, as determined by USEPA, to achieve in ozone precursor emissions. on the determination of attainment. reasonable further progress are in violation of USEPA policy (September 4, 1992, The determination of attainment is the Act. procedures for processing requests to based only on ozone monitoring data for redesignate areas to attainment, from the area. The data for at least the last H.R. Rep. no. 490, 101st Cong., 2d Sess., John Calcagni) states that data from the four years show that the area has pt. 1 (1990) at 236. Thus, Congress monitors be from areas of highest achieved attainment. We believe that contemplated that the requirements of concentration and that modeling may be the monitoring data is adequate and section 182(b)(1)(A)(I) were simply a necessary to determine the representative of the area and that specification of the more general representativeness of the monitor data. modeling is not necessary to show reasonable further progress (4) Response: While voluntary attainment. These data show that the requirements of the Act, with the same measures were used in Cleveland during area is in attainment and the monitoring goals and definition. the summer of 1995 to involve the data for 1995 show that no exceedances Moreover, USEPA’s interpretation of community in keeping their air clean, were monitored in the entire Cleveland- the requirements of section the Ohio Environmental Protection Akron-Lorain area. This shows that the 182(b)(1)(A)(I) is consistent with its Agency (OEPA) did not claim that this provisions related to submitting a SIP interpretation of the general reasonable measure was responsible for the revision to bring an area into attainment further progress requirements of CAA Cleveland area attaining the NAAQS. of the ozone NAAQS, such as the section 172. Ohio’s request claimed that the attainment demonstration, RFP, and USEPA has also determined that improvement in air quality was due to contingency measures requirements are section 172 (c)(9), 42 U.S.C. section permanent and enforceable measures, not necessary since the area is already 7502(c)(9) does not require a namely the Federal Motor Vehicle in attainment of the ozone NAAQS. contingency measures plan for an area Emissions Control Program and the The weather in 1995 was more such as CAL, which has attained the Federal fuel volatility requirements that conducive toward forming ozone in standard. The contingency measures reduced the emissions from gasoline. In many parts of the Country. Even though plan is required for an area which ‘‘fails addition, the basic automobile this was the case no exceedances were to make reasonable further progress, or inspection and maintenance program, monitored at any of the monitors in the to attain the (NAAQS) by the attainment required as a part of the carbon CAL area showing that the area has date * * *’’ 42 U.S.C. section monoxide SIP, would also have reduced its emissions to a level that has 7502(c)(9). If, as USEPA has determined provided volatile organic compound brought the CAL area into attainment of with respect to CAL, an area has already (VOC), and oxide of nitrogen (NOx) the ozone NAAQS. attained the standard, then by definition emissions reductions in the area, as a (5) Comment: The Southwestern such an area is not one to which side benefit. These measures resulted in Pennsylvania Growth Alliance (Growth contingency measures apply. There the area’s VOC emissions decreasing by Alliance) is concerned that the simply is no failure to attain or make about 14 percent from 1990 to 1994, redesignation of the Cleveland-Akron- progress for which additional measures enabling the area to reach attainment of Lorain area could adversely affect both need be contingent. However, as with the ozone NAAQS. the economy and air quality in section 182(b)(1)(A)(I), USEPA USEPA policy on the determination of southwestern Pennsylvania, and it feels interprets section 172(c)(9)’s attainment is provided in a May 10, that action on the applications from requirements to be applicable to areas 1995, memorandum from John S. Seitz, these regions should be suspended until that lapse back into violation prior to Director of the Office of Air Quality a more comprehensive national solution redesignation, and which therefore need Planning and Standards. This to interstate transport of ozone and additional progress toward attainment. memorandum sets forth USEPA’s ozone precursors is developed and Moreover, USEPA’s interpretation of interpretation of certain requirements of implemented. The Growth Alliance 172(c)(9) is consistent with its subpart 2 of part D of title I of the Clean believes that Southwestern interpretation of these requirements in Air Act as they relate to ozone Pennsylvania is being unfairly the context of redesignation requests. 57 nonattainment areas that are meeting disadvantaged compared to neighboring FR 13564. USEPA’s interpretation also the ozone NAAQS. The USEPA believes states by the requirements created by vindicates the policy objective of it is reasonable to interpret provisions the Clean Air Act, by USEPA, and by reducing the burden on states and regarding RFP and attainment the Northeast Ozone Transport sources of adopting and implementing demonstrations, along with the related Commission. additional control measures that are not requirements, so as not to require SIP (5) Response: USEPA’s proposed necessary to attain the standard. submissions if an ozone nonattainment action to determine that the Cleveland- (4) Comment: The number of ‘‘close area subject to those requirements is in Akron-Lorain area has reached calls’’ and the use of voluntary measures fact attaining the ozone standard (i.e., attainment and that it is not necessary to reduce ozone raises real questions attainment of the NAAQS is for it to have an attainment about the overall air quality. Modeling demonstrated with 3 consecutive years demonstration, 15% rate of reduction would answer some of these questions of complete, quality-assured air quality plan, and a contingency plan is different and give a truer picture of what the air monitoring data). The USEPA has from redesignating the Cleveland- is really like. Some initial analysis of previously interpreted the general Akron-Lorain area as an attainment area the weather patterns in 1995 indicates provisions of subpart 1 of part D of title for ozone. In order for USEPA to make that they may be similar to 1988, a I (section 171 and 172) so as not to a determination concerning the 15% supposedly ‘‘unusually hot, dry require the submissions of SIP revisions plan and other requirements, it is only summer’’ when numerous exceedances concerning RFP, attainment necessary to show that the area has were recorded. In fact, the weather in demonstrations, or contingency attained the ozone standard through 20462 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations monitoring data. In order to be has attained the ozone standard, the Quality Standards (NAAQS); (ii) The redesignated from nonattainment to requirements of section 182(b)(1) Administrator has fully approved the attainment the area must meet the five concerning the submission of the 15 applicable implementation plan for the redesignation requirements of section percent plan and ozone attainment area under section 110(k); (iii) The 107 of the CAA. One of the five demonstration and the requirements of Administrator determines that the redesignation requirements is that the section 172(c)(9) concerning improvement in air quality is due to area have met all of the SIP contingency measures are not applicable permanent and enforceable reductions requirements applicable to the area. A to the Cleveland-Akron-Lorain area. in emissions resulting from determination of attainment renders Additionally since this determination is implementation of the applicable some of those requirements as occurring simultaneously with the implementation plan and applicable inapplicable, based on the area attaining ozone redesignation to attainment, the Federal air pollutant control regulations the standard, but the area would still determination will not be revoked in the and other permanent and enforceable have to meet the remaining applicable event of a violation. Rather, in the event reductions; (iv) The Administrator has SIP requirements before it could satisfy of a violation, the contingency measures fully approved a maintenance plan for part of the requirements for in the approved maintenance plan the area as meeting the requirements of redesignation. The ozone redesignation would be triggered by a violation. section 175(A); and (v) the State request for Cleveland-Akron-Lorain is containing such area has met all Ozone Redesignation Request being addressed in a separate part of requirements applicable to the area this same Federal Register action. A I. Background under section 110 and Part D. discussion of the comments and Included in the State submittal was a responses received on the redesignation On November 14, 1994, the OEPA maintenance plan. A component of the is given in that part of this action. In submitted to the USEPA a request for maintenance plan is the maintenance order for the CAL area to be redesignation to attainment for ozone redesignated from nonattainment to for the CAL area of Lorain, Cuyahoga, demonstration which shows that the attainment it would have to meet all of Lake, Ashtabula, Geauga, Medina, level of emissions projected out 10 years the applicable redesignation Summit and Portage. Additional will not exceed the attainment year requirements. If an area meets the information on the State public hearing inventory. The proposed rulemaking criteria for redesignation nothing in the and response to comments was presented summary tables of Volatile CAA suggests that redesignations submitted to USEPA on February 22, Organic Compounds (VOC) emissions, should be delayed. Any issue regarding 1995. The redesignation requests were and NOX emissions projections for the transport of ozone and its precursors supported by technical information CAL area counties. The OEPA has can and is expected to be dealt with demonstrating that the requirements of revised the base year and projected year through the Ozone Transport and section 107(d)(3)(E) of the Clean Air Act inventories numbers in response to Assessment Group (OTAG) and Amendments (CAAA) were met. On comments made by Region 5. The VOC USEPA’s authority under section 110 June 15, 1995, a notice was published in and NOX point source emissions (a)(2)(A) and (a)(2)(D) of the Act. See the Federal Register (60 FR 31433) projections for the year 2000 were also Response to comment 2. which proposed approval of the estimated by USEPA based on an redesignation requests to attainment for average growth rate for the 1996 to 2006 Determination Conclusion ozone and the maintenance plans for the period. These estimates show that the The USEPA has determined that the Ohio CAL moderate ozone total emissions in the area are expected Cleveland-Akron-Lorain (which nonattainment area counties. to remain below the attainment level of includes the Counties of Ashtabula, emissions. In addition, the NOX point II. Summary of Proposed Rulemaking Cuyahoga, Geauga, Lake, Lorain, source emission projections do not Medina, Portage and Summit) has The proposed rulemaking detailed account for emission reductions due to attained the ozone standard and how the State submittal fulfilled the the Title IV Acid Rain requirements of continues to attain the standard at this redesignation requirements of the the CAA, which would further reduce time. CAAA. Specifically, section 107(d)(3)(E) NOX emissions in the area. The changes As a consequence of this provides for redesignation if: (i) The did not affect the State’s ability to determination that the Cleveland- Administrator determines that the area demonstrate maintenance. The revised Akron-Lorain ozone nonattainment area has attained the National Ambient Air tables are presented below.

SUMMARY OF VOC EMISSIONS [Tons/day]

1996 pro- 2000 pro- 2006 pro- 1990 base 1993 attain jected jected jected

Point ...... 82.22 75.75 78.55 82.44 88.63 Area ...... 201.05 201.37 201.45 201.63 200.86 Mobile ...... 248.4 181.4 131.2 78.4 48.8 Totals ...... 531.7 458.5 411.2 362.5 338.3

SUMMARY OF NOX EMISSIONS [Tons/day]

1996 pro- 2000 pro- 2006 pro- 1990 base 1993 attain jected jected jected

Point ...... 245.59 254.61 263.91 277.05 298.00 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20463

SUMMARY OF NOX EMISSIONSÐContinued [Tons/day]

1996 pro- 2000 pro- 2006 pro- 1990 base 1993 attain jected jected jected

Area ...... 80.46 80.56 80.51 80.61 80.18 Mobile ...... 176.6 159.9 142.2 95.5 75.4 Totals ...... 502.6 495.1 486.6 453.2 453.6

Additionally, the VOC and NOX as long as the area continues to meet the the elderly, and impacts on smog levels emissions projected for the year 2006 in standard. Such a determination is made still visible in the area. the above tables are considered for the CAL area in a separate part of (1) Response: The NAAQS were emission budgets for purposes of this rulemaking. Consequently, final established to protect the public’s health transportation conformity. approval of the redesignation request for and welfare with an adequate margin of The proposal stated that final the CAL counties of Lorain, Cuyahoga, safety. Although additional reductions approval of the CAL moderate Lake, Ashtabula, Geauga, Medina, in VOCs may provide further health nonattainment area counties was Summit, and Portage is no longer improvements, it is noted that the issue contingent upon final approval of VOC dependent upon approval of the 15% here is attainment of the ozone reasonably available control technology plan, attainment demonstration, or standard. The State of Ohio has met the (RACT) rules, the 1990 Base-year section 172(c)(9) contingency measures. requirements for the redesignation of inventory, the section 182(f) NOX the Cleveland-Akron-Lorain area to waiver request, the 182(b)(1) reasonable Public Comment/USEPA Response attainment of the ozone standard, further progress plan (15% plan), the In response to the request for written including attainment of the ozone 182(b)(4) inspection and maintenance comments on the proposed rulemaking, NAAQS. It is not clear that further plan, the attainment demonstration, and USEPA received about 50 comment reduction in ozone levels will provide the 172(c)(9) contingency measures. All letters. Letters were received from significant health improvements. With regard to a revised ozone of these requirements have either been concerned citizens, environmental standard, it should be noted that the met through full approval of state groups, and industry. Over 30 of these USEPA along with States and science submittals or have been determined in letters were adverse comments on the advisors, is the process of reconsidering this rulemaking to be no longer propose rulemaking. The remaining the ozone standard. If the ozone applicable. The final approval of most of comments were in support of the standard is revised a number of ozone the VOC RACT rules were published on proposed rule. The following attainment and nonattainment areas March 23, 1995 (60 FR 15235), and summarizes the adverse comments may be affected. A redesignation of became effective on May 22, 1995. Final received and responds to them. The approval of RACT rules for major Cleveland-Akron-Lorain to attainment at comments in support of the rule are not stationary sources not specifically this time will not prevent this area from summarized below, but are available for covered by a USEPA Control Technique being redesignated to nonattainment if it public review in USEPA’s docket. In an Guideline for RACT became effective on is subsequently found to be in violation earlier part of this rulemaking October 31, 1995, in a letter notice of a revised ozone standard. Until the comments and responses are provided action from Regional Administrator NAAQS is revised, however, the 0.12 on the determination of attainment for Adamkus to the individual companies. ppm NAAQS for ozone is the only the CAL area. To the extent that any A formal announcement of this was appropriate standard against which to comments under the determination made in the Federal Register. The Base- judge attainment. section also apply to the ozone year inventories were approved on (2) Comment: People in the December 7, 1995 (60 FR 62737) and redesignation action for the CAL area Cleveland-Akron-Lorain area suffer from they are also incorporated into the effective on January 8, 1996. The NOX sinus problems, and increased waiver request was approved on July 13, comments/responses under this section occurrence of asthma and other life- 1995 (60 FR 36051) and became covering the ozone redesignation action threatening respiratory illnesses that are effective on August 14, 1995. The I/M for the CAL area. directly attributable to air pollution. The plan was approved on April 4, 1995 (60 (1) Comment: Many of the air is often oppressive and really FR 16989) and became effective on June commenters are opposed to the unbreathable, especially in the kind of 3, 1995. redesignation of the Cleveland-Akron- hot, humid weather that the area has A May 10, 1995, memorandum from Lorain area to attainment on the experienced this summer. Infants and John S. Seitz, Director, Office of Air grounds that they believe that more the elderly are affected by the higher Quality Planning and Standards, stringent emission control requirements tolerance of ozone levels now in force. entitled ‘‘Reasonable Further Progress, and sanctions are needed to avoid We see people who become ill from Attainment Demonstration, and Related unsafe pollution levels. These polluted air whenever the ozone level Requirements for Ozone Nonattainment commenters believe that the benefits of rises. The current ozone standard is not Areas Meeting the Ozone National health and environmental health based. We want to breathe Ambient Air Quality Standard’’, states improvements to be achieved through cleaner air. We are opposed to the that upon a determination made by stricter standards outweigh the redesignation of Cleveland-Akron- USEPA that an area has attained the increased costs of emission controls on Lorain because of the asthma epidemic NAAQS for ozone, that area need not industry and on the public. Several and increasing number of asthma submit SIP revisions concerning commenters state that the ozone deaths. The pervasiveness of the health reasonable further progress (15%) plan, standard itself should be tightened, threat posed far outweighs the 182(b)(1) attainment demonstrations, expressing concerns over long term inhibition of industrial expansion and and 172(c)(9) contingency measures for health impacts, impacts on children and limits on smokestack pollution. 20464 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

(2) Response: The current ozone engines the pollution from these are freed when oxygen molecules are standard is a health based standard. It vehicles will be significantly reduced. impacted by the high energy radiation. was recently reviewed and reaffirmed, In October 1993, the USEPA required Some of these freed oxygen atoms see 58 FR 13008 (March 9, 1995). the use of a cleaner diesel fuel combine with oxygen molecules to form However, the ozone NAAQS is currently throughout the country. Diesel fuel used ozone molecules. Within this layer of being reviewed to see if the standard in on-highway compression ignition the atmosphere, ozone is a significant should be changed and what the new engines contains less sulphur than absorber of high energy ultraviolet standard would be, see 59 FR 5164 earlier fuels. Lower sulphur reduces the radiation from the Sun. If this (February 3, 1994). A staff report was amount of indirect particulate and ultraviolet radiation reached the surface recently released that discusses this improves the operation of new diesel of the earth in sufficient intensity, review of the ozone NAAQS. But unless engines using particulate trap oxidizers significant, undesirable biological and until the ozone NAAQS is changed to control direct particulate emissions. It damage could result to surface - it remains the standard to use for is estimated that the use of low-sulphur organisms. Concerns over potential comparison against ozone monitoring diesel fuel reduces direct and indirect damage to the protective ozone layer has data in the area. Those data indicates particulate by approximately 28 percent led to efforts to reduce the emissions of attainment of the ozone standard. from the baseline fuel. Air quality gasses which are believed to directly or (3) Comment: In Cleveland-Akron- impacts of fuel controls are projected to indirectly eliminate ozone molecules. Lorain the air smells. There are also foul reduce particulate by 2.3 to 8.3 In the case of the proposed of odors coming from factories during the micrograms per cubic meter and Cleveland-Akron-Lorain, one is dealing early morning hours that are waking us sulphur dioxide by 7 to 16 micrograms with ozone found in the lowest levels of up and making us nauseated. per cubic meter in a metropolitan area the atmosphere. At this level of the (3) Response: At the Federal level the the size of Cleveland-Akron-Lorain. atmosphere, high ozone levels are not Clean Air Act (CAA) does not provide The State of Ohio will implement its typically found (natural processes can specific requirements for companies to inspection and maintenance (I/M) lead to peak ozone levels of 0.04 to 0.06 control odors. Odor is not an issue program beginning in 1996. The parts per million, well below the ozone pertinent to the ozone standard or the authorizing State legislation for the I/M standard of 0.12 parts per million). Man- attainment of that standard. We have, program requires the testing of diesel made (anthropogenic) emissions of however, made our enforcement group powered vehicles up to 10,000 pounds volatile organic compounds, oxides of aware of these complaints to see what for opacity (smoke). Buses are also nitrogen, and other gases, in the can be done. Further, existing facilities required to meet emission standards for presence of sunlight and relatively must continue to operate existing air smoke, hydrocarbons and carbon warm temperatures, can lead to ozone pollution control equipment in monoxide. formation of considerably higher accordance with applicable rules, The reductions in hydrocarbon, and concentrations. This chemical formation regulations and permits, and sources NOX emissions from trucks and buses process involves hundreds of chemical that are problematic in terms of posing will contribute to maintaining the ozone reactions and differs significantly from a nuisance to area residents may be standard and protecting the public’s the process that forms ozone in the referred to the State and local health. Particulate issues are separate stratosphere. There is no significant environmental enforcement staff for from ozone issues and are not relevant exchange of ozone between the lower investigation. for consideration here. While the atmosphere, where high ozone levels are (4) Comment: Several commenters standards for particulate emissions will undesirable, and the stratosphere, where expressed concern that trucks and buses greatly reduce the amount of smoke high ozone levels are desirable for the pollute the air by blowing out black emitted from trucks and busses, it is not protection of life on earth. smoke and that cleaning up emissions expected to have a significant effect on Ozone concentrations in excess of the from cars is not sufficient. ozone levels and as a result is not ozone standard are shown, based on (4) Response: The USEPA agrees that pertinent to an ozone redesignation numerous health studies and correlation cleaning up emissions from cars is not request. of health data and monitored ozone enough. Trucks and buses also produce (5) Comment: Several commenters concentrations, to be damaging to significant pollution. The USEPA has have expressed confusion over the human health, particularly causing set stringent standards for new heavy relationship between the proposed problems with the human respiratory duty diesel engines beginning with the redesignation and the protection of the system. For this reason, ozone has been 1988 model year, with additional ‘‘ozone layer.’’ One commenter in listed as a primary pollutant with a improvements to be made with the 1991 particular requests that the USEPA defined health-based standard. and 1994 model year engines. The black explain the ‘‘whole ozone picture.’’ (6) Comment: The air quality in smoke from diesel trucks and buses is (5) Response: At the very outset of Cleveland-Akron-Lorain is lousy and particulate matter which is a visible air this response, it must be noted that there has been no improvement in the pollutant. Trucks and buses also ‘‘ozone’’ referred to in the proposed quality of our air. If anything, I would contribute to ozone air pollution redesignation is chemically identical to say things are worse. because they produce hydrocarbons and the ‘‘ozone’’ referred to in the term (6) Response: With respect to ozone NOX. The NOX emission standard has ‘‘ozone layer.’’ In both situations ozone levels in the CAL, the air quality has been tightened from 10.7 grams per refers to a gas composed of molecules improved significantly since the late brake horsepower per hour (g/bhp-hr) in with three oxygen atoms each. 1980’s. During 1988 there were a 1985 to 6.0 in 1988 and 5.0 in 1991. The In the case of the ‘‘ozone layer’’, one number of monitored readings above hydrocarbon emission rate for diesel is referring to the layer of the Earth’s .150 parts per million in the area. engines is set at 1.3 g/bhp-hr. Particulate stratosphere where ozone is found in During the last four years the highest emission standards have been tightened relatively high concentrations. Ozone in concentration monitored was .127 ppm. from 0.60 g/bhp-hr in 1988 to 0.10 g/ this layer is formed through the reaction CAL achieved attainment of the ozone bhp-hr in 1994 for all new heavy duty of oxygen molecules (two oxygen atoms standard at the end of 1994, by engines. As the older trucks and buses each) and high energy electromagnetic monitoring attainment of the ozone are replaced by the newer, cleaner radiation from the Sun. Oxygen atoms NAAQS during the three previous years Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20465

(which are 1992, 1993, and 1994). The jobs. In fact, there is evidence that and in comment 4 in the determination area continued to attain the standard indicates the opposite. Second, even if of attainment section. since that time. this is true, we would be selling our (9) Comment: A number of Section 107(d)(3)(E)(iii) requires that, health, and the health of our world and commenters believed the air monitoring for the USEPA to approve a our children, for economic benefit. This in the area was inadequate. Several redesignation, it must determine that does not seem a good trade. There is concerns were noted: Commenters the improvement in air quality is due to entirely too much emphasis on business stated that there is presently insufficient permanent and enforceable reductions economic considerations over health monitoring both in terms of what is in emissions. The September Calcagni considerations. The cost to industry monitored and the number of memorandum, at page 4, clarifies this may be high, but what about the cost to monitoring stations (specifically, a lack requirement by stating that pay for increased health problems? Air of ozone monitoring in Geauga County ‘‘[a]ttainment resulting from temporary pollution results in hundreds of was cited by several commenters). reductions in emission rates (e.g., thousands of dollars worth of asthma (9) Response: The requirements for reduced production or shutdown due to illnesses and deaths each week. This ambient air quality monitoring are temporary adverse economic should be spent on pollution controls detailed in 40 CFR part 58. The federal conditions) or unusually favorable instead. requirements include: The use of meteorology would not qualify as an air It would be reprehensible if the approved air monitoring equipment; quality improvement due to permanent agency charged with the protection of quality assurance of monitoring data; and enforceable emission reductions.’’ health and the environment capitulated appropriate network design; operating As discussed in the June 15, 1995 to vested, self-serving interests that schedule; and siting of individual Federal Register proposed rulemaking, place the almighty dollar ahead of monitors. In determining attainment or the State of Ohio demonstrated that human health and welfare. The nonattainment status of an area for the permanent and enforceable emission redesignation request should not be NAAQS for ozone, only air monitors reductions are responsible for the recent approved. sampling for ozone are relevant. (7) Response: The approval of the improvement in air quality. This Monitoring for precursors of ozone ozone redesignation request for demonstration was accomplished (such as VOC and NO ) can be Cleveland-Akron-Lorain is based on the S X through an estimate of the reductions beneficial in understanding ozone area meeting the five requirements of (from 1990 to 1993) of VOC achieved formation. For determining the air section 107 of the CAA. It is not based through Federal measures such as the quality concentrations of ozone in an Federal Motor Vehicle Emissions on economic grounds. The first of the area and determining attainment of the Control Program (FMVECP) and fuel five requirements of section 107 is that ozone standard, ambient ozone monitors volatility rules implemented from 1990– the area has attained the National are considered. 1993, as suggested by the September Ambient Air Quality Standard for The Cleveland-Akron-Lorain ozone Calcagni memorandum. ozone, which it has. The NAAQS for Volatile Organic Compound (VOC) ozone is set at a level designed to monitoring network consists of ten emissions are one of the precursors that protect the public’s health and ambient ozone monitors: three in help to form ozone. The total emission monitoring data show that the area is Cuyahoga County, two in Lake County, reductions achieved from 1990 to 1993 meeting the standard. and one each in Ashtabula, Lorain, were 65 tons of VOC per day. This is a (8) Comment: One commenter, Medina, Portage and Summit Counties. 14 percent reduction in VOCs, which although not expressing opposition to The monitoring network is reviewed by corresponds to the drop in ozone the proposed redesignation, does the USEPA. The individual monitoring concentrations in the area. These express opposition to the approach used sites meet the federal monitoring emission reductions were primarily the in the Cleveland-Akron-Lorain area of requirements. The commenters are result of the FMVECP, Automobile trying to get the public to reduce correct in noting that Geauga County is Inspection and Maintenance program, emissions only during critical high downwind of the urban area and in a and Gasoline Reid Vapor Pressure (RVP) ozone potential periods. The commenter location that would be expected to reductions from 10.5 pounds per square favors a permanent curtailment of receive high ozone concentrations. inch (psi) in 1989, to 9.0 psi in 1992. emissions so that people with related However, the USEPA believes that The VOC emissions are expected to health risks, such as asthma, will not decisions on the air quality can be made continue to decrease in the future due have to seek the shelter of air- with the current network because the to the Federal Motor Vehicle Emissions conditioned places during such periods. monitors cover an adequate geographic Control Program, Stage II vapor recovery (8) Response: It is agreed that, where area to be representative of the program, and the Enhanced Automobile possible, permanent emission controls nonattainment area. Ozone monitors are Inspection and Maintenance Program. should be implemented to minimize located in every county that is The NOX emissions are also expected to ozone levels and to attain the ozone contiguous to Geauga County. All of decrease in the future due to the Federal standard. It should be recognized that these monitors are in attainment of the Motor Vehicle Emissions Control many permanent emission controls, ozone NAAQS, including Lake County Program and the Enhanced Automobile such as reasonably available control which is also downwind of the main Inspection and Maintenance Program. technology, transportation control urban area and would be expected to (7) Comment: I am sure you are being measures, and vehicle inspection/ have similar air quality to Geauga bombarded with requests to change the maintenance, have been implemented in County. Based on this USEPA believes designation to attainment, on the the Cleveland-Akron-Lorain area. The that Geauga County is also in attainment grounds that the region will be hurt maintenance plan takes into account of the ozone NAAQS. economically if this is not done. To me, that these emission controls will be (10) Comment: One commenter such arguments ignore two fundamental maintained despite the redesignation of believed that the original readings that points. First, there is not evidence that the area as an area in attainment of the brought about the ‘‘bad rating’’ were stricter environmental regulations hurt ozone standard. The permanent and taken in an industrial area surrounded the economy. A clean environment does enforceable emissions reductions are by freeways inundated with Cleveland not mean less jobs, it can mean more discussed under comment number six, Browns fans. The commenter believed 20466 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations the monitoring readings to be mandatory, and giving incentives for aircraft emissions were projected to the unrepresentative. sharing rides. One commenter was 10-year maintenance period in Ohio’s (10) Response: The highest ozone against the more stringent I/M program. maintenance plan for the Cleveland- readings are not typically found in (12) Response: The I/M program for Akron-Lorain area, and were shown, industrial areas or near freeways. automobiles is a very cost-effective along with emissions from other Industries and traffic produce program for reducing pollution. Studies sources, to not cause a projected hydrocarbons (also called volatile show that a small percentage of vehicles violation of the ozone standard. organic compounds) and NOX pollution are producing a large portion of the (14) Comment: A number of that react in the presence of sunlight to pollution in a metropolitan area. commenters were concerned that the form ozone. This reaction takes place Automobiles that are not well- redesignation would affect over a period of several hours and thus maintained or that have pollution transportation choices and the highest ozone concentrations are control equipment that has been transportation planning and would typically found 20 to 40 miles in the disabled emit air pollution that can contribute to more pollution. Concerns downwind direction. The USEPA increase ozone concentrations. The I/M were expressed about: The need for considers all valid, quality assured program will identify these automobiles more bike paths, the need for improved monitoring data in the area in assessing and require repairs. Compared to other public transit, the need to discourage the air quality. The moderate ozone forms of pollution control, the I/M driving. Specific concern was expressed nonattainment designation was based program is a low-cost alternative. The about express lanes on I–271 which on 3 years of ozone monitoring data enhanced I/M program is estimated to would impact the environment. Another (1987–1989) and was based on the cost between $500 to $900 dollars per commenter had concerns about a fourth highest reading (.157 the design ton of VOC pollution reduced. This subway being dropped from the value) at the monitoring site in Akron, compares to a cost of approximately transportation planning, a lack of Ohio. Other ozone monitoring sites in $5,000 per ton for a basic program, bicycle facilities, more interchanges and the area also had ozone concentrations $5,000 to $10,000 dollars per ton of freeways and new lane additions. There in the range of a moderate classification. VOC reduced for additional stationary was concern about a tollway from For example, the site at Jefferson source controls beyond the current Toledo to Portsmouth instead of light Elementary School in Eastlake, Ohio RACT required in the Cleveland-Akron- rail that would be upwind of the had a design value of .152 for the 1987– Lorain area. The USEPA agrees that an populated current nonattainment areas 1989 time period. The ozone monitoring effective I/M program is important. The and would add pollution to the areas. data now shows an improvement in air enhanced I/M program adopted by Ohio The commenter wanted pollution quality that demonstrates attainment of and which began in January 1996, is the prevention through better transportation the health based ozone standard. All air best and most cost effective testing choices. monitoring data is available to the program recommended by the USEPA. (14) Response: The redesignation to public from the national USEPA An additional feature of the State’s attainment does not negate the need for Aerometric Information and Retrieval enhanced I/M program, designed to the area to make smart transportation System (AIRS) data bank. improve repair-effectiveness, is the choices. The transportation conformity (11) Comment: The fact that this requirement that automobile technicians requirements still apply to the area as a region did not adopt reformulated, less become certified to repair vehicles maintenance area. The area will need to ozone-producing gasoline with fewer which fail the test. The auto technician demonstrate that emissions are not VOC’s for summertime use clearly training program requires technicians to exceeding the mobile source emission demonstrates the lack of commitment to undergo a training program to ensure budget in the maintenance plan. The clean air. they are able to perform repairs on Northeast Ohio Area wide Coordinating (11) Response: While the Cleveland- current new-technology vehicles and Agency (NOACA) is the local Akron-Lorain area was not required to vehicles of the future. Technicians and metropolitan planning organization for adopted reformulated gasoline in order repair facilities will be graded on the the Cleveland-Akron-Lorain area and to be redesignated, they did choose an effectiveness of repairs and this performs the conformity analysis on the Enhanced Automobile Inspection and information will be available to the transportation plan. Conformity to the Maintenance program (I/M) as a public in order to make informed emission budget is designed to prevent maintenance measure to be decisions on where to take their vehicle the area from increasing mobile source implemented in the area. This program for repairs. This technician training and emissions to the point where the air was chosen as the most cost effective certification program began quality standards are exceeded. program that the area could use for implementation in October 1995, and is Conformity will also provide assurance maintaining the standard while still being supervised by the OEPA. that a project will not be done if it providing room for growth in the area. (13) Comment: A commenter would cause or contribute to a violation (12) Comment: Several commenters expresses the concern that control of of the ozone NAAQS in the CAL area. expressed dissatisfaction with the emissions from aircraft as they travel The commenters are correct in noting inspection and maintenance program for over the area (and over the United States that transportation measures such as automobiles. Some were concerned in general) have not been given enough improvements in bicycle paths and about gaps in the I/M program that consideration. The commenter believes facilities and improved public transit reduced the effectiveness. One aircraft emissions must be considered will contribute to better air quality by commenter suggested other pollution along with emissions from industries reducing the number of automobiles and reduction measures. A commenter and automobiles in the control of air the number of vehicle miles of travel. believed that the vehicle inspection and pollution. The commenters are also correct in their maintenance program was not effective. (13) Response: It should be noted that concerns about increasing freeway The commenter believed that the I/M States, under the requirements of capacity and tollways, as these types of funds would be better spent on section 182(a)(1) of the Clean Air Act, projects will encourage additional enforcing the speed limit, getting rid of have included aircraft emissions in a vehicular traffic. The USEPA believes high polluting vehicles, doing more on base year emissions inventory for each that the conformity requirements will ‘‘Ozone Action Days’’ or making these ozone nonattainment area. These allow the area to make local decisions Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20467 on transportation planning while continue to be enforced by the State and to the air quality planning goals in the assuring that mobile source emissions will remain federally enforceable. applicable SIP. The requirement to will not increase. Increases to the (17) Comment: One commenter determine conformity applies to mobile source budget are only allowed asserted that section 107(d)(e)(E)(v) transportation plans, programs and if there is an excess in the total requires that a state meet all applicable projects developed, funded or approved projected emissions for the area. requirements under section 110 and Part under Title 23 U.S.C. or the Federal Projects such as tollways that are built D. While claiming that Cleveland Transit Act (‘‘transportation in the maintenance area would also be satisfies all 172(c) requirements, USEPA conformity’’), as well as to all other subject to conformity. Tollways that are acknowledges that some components Federal actions (‘‘general conformity’’). in attainment areas are not currently have not yet completed regulatory Section 176 further provides that the required to meet any conformity tests. It review. 60 FR 31437. conformity revisions to be submitted by is possible that projects of this type (17) Response: All applicable the States must be consistent with could affect air quality downwind; components, including those were Federal conformity regulations that the however, the USEPA believes that the referred to in the proposal as pending Act required the USEPA to promulgate. cleaner vehicle standards will regulatory review, have now completed Congress provided for the State contribute to preventing degradation of regulatory review. The Clean Air Act revisions to be submitted one year after the air. See also the response to requires that the Cleveland-Akron- the date of promulgation of final USEPA comment 18. Lorain area meet all applicable conformity regulations. (15) Comment: Over Lake Erie there is requirements before the area is The USEPA promulgated final a gray and yellow mass of pollution. redesignated. USEPA approved the 1990 transportation conformity regulations on There is also a trail of smoke that rises base year emissions inventory in a final November 24, 1993 (58 FR 62188), and from the smoke stacks of the East Lake rulemaking published on December 7, general conformity regulations on Electric Power plant, and the trucks and 1995 (60 FR 62737). The remaining VOC November 30, 1993 (58 FR 63214). RACT rules for the area were approved buses are also emitting smoke. When I These conformity rules require that in letter notice rulemakings dated am at a high point on a hill looking States adopt both transportation and October 31, 1995 and announced in the down at downtown Cleveland, I can general conformity provisions in the SIP Federal Register. In a separate part of barely see the buildings. It’s as if they for areas designated nonattainment or this final rulemaking USEPA are behind a cloud of dirt, smoke, and subject to a maintenance plan approved determined that the 15% plan and other pollution. We need to change this. under section 175A of the Act. Pursuant contingency measures requirements are to 40 CFR 51.396 of the transportation (15) Response: USEPA has a variety of no longer applicable to the Cleveland- conformity rule and 40 CFR 51.851 of programs addressing the commenter’s Akron-Lorain area. USEPA’s rational for the general conformity rule, the State of concerns. The ‘‘trail of smoke’’ from the this action is contained in the Ohio is required to submit a SIP East Lake power plant is particulate rulemakings dated August 25, 1995 (60 revision containing transportation matter, which is regulated both by limits FR 44277), June 29, 1995 (60 FR 33742, conformity criteria and procedures on the mass of particulate matter and by and 60 FR 33781), and this final consistent with those established in the limits on the opacity of the plume. rulemaking. As a result of these actions Federal rule by November 25, 1994, and Smoke from trucks and buses is being the Cleveland-Akron-Lorain area has November 30, 1994, respectively. Ohio limited by new emissions standards that met all of the fully approved SIP submitted transportation and general have been made achievable by new requirements. These requirements were conformity SIP revisions on August 17, limitations on the sulfur content of met before USEPA published this final 1995. The USEPA has not yet approved diesel fuel. USEPA is updating its rulemaking taking action on the the transportation conformity rules as visibility regulations to reduce the redesignation requests. part of the SIP. Final rulemaking on the impairment of visibility due to air In response to the comment on the general conformity rules is expected pollution. Nevertheless, USEPA protection of the public health. The soon. evaluates attainment of the air quality public’s health is protected as The USEPA believes it is reasonable standards based on quantitative evidenced by the monitoring data to interpret the conformity requirements measurements of air pollutant collected in the area. The data show that as not being applicable requirements for concentration. Since these the air quality levels are meeting the purposes of evaluating the redesignation measurements indicate that the ozone NAAQS for ozone. These standards request under section 107(d). The standard is being attained, USEPA must were set to protect the public health and rationale for this is based on a conclude that this criterion for welfare. combination of two factors. First, the redesignation is satisfied. (18) Comment: By this proposed requirement to submit SIP revisions to (16) Comment: Several commenters approval, USEPA claims the comply with the conformity provisions are opposed to the redesignation redesignation request relieves Ohio from of the Act continue to apply to areas because they believe it will lead to less submitting SIP revisions providing after redesignation to attainment, since USEPA oversight of existing emission transportation and general conformity such areas would be subject to a section control regulations and, therefore, to criteria guidance. 175A maintenance plan. Therefore, the increased air pollution. (18) Response: USEPA in this notice State remains obligated to adopt the (16) Response: All volatile organic does not relieve Ohio from conformity transportation and general conformity compound emission control regulations requirements. Rather, USEPA has rules even after redesignation and in place at the time of the redesignation determined that those requirements will would risk sanctions for failure to do so. of the Cleveland-Akron-Lorain area will continue to apply after the area is While redesignation of an area to remain in place unless it is ultimately redesignated, and therefore need not be attainment enables the area to avoid shown through photochemical fulfilled as a condition of redesignation. further compliance with most dispersion modeling that such control Section 176(c) of the Act requires States requirements of section 110 and part D, measures are not necessary for to revise their SIPs to establish criteria since those requirements are linked to continued attainment of the ozone and procedures to ensure that Federal the nonattainment status of an area, the standard. These regulations will actions, before they are taken, conform conformity requirements apply to both 20468 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations nonattainment and maintenance areas. adopted a complete implementation USEPA disagrees with the Second, USEPA’s federal conformity plan. commentor’s analysis of the language rules require the performance of (19) Response: USEPA has not and structure of the CAA. USEPA’s conformity analyses in the absence of suspended or granted the CAL an statutory analysis was explained in state-adopted rules. Therefore, a delay exemption from any applicable detail in the June 8, 1995 direct final in adopting State rules does not relieve requirements. Rather, USEPA has rule and in the May 10, 1995 an area from the obligation to interpreted the requirements of section memorandum from John Seitz. USEPA implement conformity requirements. l82(b)(1)(A)(i) and l72 (c)(9) as not being further elaborated upon this analysis, Because areas are subject to the applicable once an area has attained the and responded to many of the concerns conformity requirements regardless of standard, as long as it continues to do raised by the plaintiffs, in its final whether they are redesignated to so. This is not a waiver of requirements determination of attainment of Ozone attainment and must implement that by their terms clearly apply; it is a Standard for Salt Lake and Davis conformity under Federal rules if State determination that certain requirements Counties, Utah, and Determination rules are not yet adopted, the USEPA are written so as to be operative only if Regarding Applicability of Certain believes it is reasonable to view these the area is not attaining the standard. Reasonable Further Progress and requirements as not being applicable The May 10 Policy was clear about Attainment Demonstration requirements for purposes of evaluating the consequences of the policy for Requirements. See 60 FR 36,723 (July a redesignation request. redesignations. First, it made plain that 18, 1995). To the extent here pertinent, For the reasons just discussed, the a determination of attainment is not such portions of that notice, including USEPA believes that the ozone tantamount to a redesignation of an area the responses to comments, are redesignation request for the CAL area to attainment. Attainment is only one of incorporated herein by reference. the criteria set forth in 107(d)(3)(E). To may be approved notwithstanding the Thus, USEPA disagrees with the be redesignated, the State must satisfy lack of fully approved State commentors’ view that USEPA is not all of the criteria of 107(d)(3)(E), transportation and general conformity complying with all the redesignation including the requirement of a rules. This policy was also exercised in requirements of 107(d)(3)(E). The area demonstration that the improvement in the Tampa, Florida ozone redesignation has a fully approved plan for and has the area’s air quality is due to finalized on December 7, 1995 (60 FR met all applicable requirements. USEPA permanent and enforceable reductions, 62748). has interpreted SIP submission and the requirements that the area have requirements of section 182(b)(1) (19) Comments: A commenter argued a fully-approved SIP which meets all of regarding reasonable further progress that the submission is defective under the applicable section 110 and part D and attainment demonstration plans, section 107(d)(3) because of the absence requirements, and a fully approved and of section 172(c)(9) regarding of a complete and fully approved maintenance plan. contingency measures to be implementation plan. The commenter Upon a determination of attainment, implemented in the event an area fails asserted that USEPA cannot excuse however, the 182(b)(1)(A)(i) to make reasonable further progress or Ohio’s failure to submit required SIP requirements of RFP and attainment attain the standard by the attainment revisions coming due after the plans, and the 172(c)(9) requirement of date, not to apply for so long as the area November 15, 1994 filing of the contingency plans are no longer continues to attain the standard. Since redesignation request. The commenter considered applicable requirements they are not applicable, fulfillment of complained that USEPA in its proposal under section 107(d)(3)(E). They would these requirements is not necessary to was illegally attempting to rectify gaps no longer be included among those meet the redesignation criteria of by waiving applicability of necessary measures whose approval is part of the 107(d)(3)(E). SIP requirements, including the requirement of having a fully approved The commenter challenges USEPA’s requirements of 15 percent RFP, SIP. authority to determine certain SIP attainment demonstration, and A commenter contended that, by requirements inapplicable, and then contingency measures. Under section relying upon its determination of bootstraps that argument to complain 107(d)(3)(E)(ii), a nonattainment area attainment, USEPA is avoiding the that since CAL has not met these may be redesignated only after USEPA redesignation requirements of 107(d). requirements, the redesignation request has fully approved the applicable This is not the case. What USEPA has only partially fulfills 107(d)(E)(v). The implementation plan for the area under done is make a determination that since commenter argues that this is because section 110(k). the area is attaining the standard, which the state has not met all ‘‘applicable’’ Under the APA, the Administrator is a factual determination, certain requirements under section 110 and Part may not suspend applicability of SIP provisions of the CAA, whose express D; but the requirements it points to are requirements except by redesignation purpose is to achieve attainment of the the very ones that USEPA has pursuant to 107(d)(e)(E). This can be standard, do not require SIP revisions to determined are inapplicable. done only if USEPA has fully approved be made by the State for so long as the USEPA rejects this kind of circular the SIP under 110(k). See area continues to attain the standard. argument. Since USEPA has determined 107(d)(3)(E)(iii). Congress allotted This has long been USEPA’s policy with that the statute does not require certain USEPA no discretion in determining respect to the section 172(c)(9) submissions so long as the area is in what constitutes the applicable plan, contingency measures and section attainment, those inapplicable but directed it to look at section 110(k), 172(c)(2) RFP requirement. See general requirements cannot serve as the basis which does not give the Administrator preamble at 57 FR 13498. USEPA has for concluding that the redesignation authority to decide what constitutes the also made determinations regarding request is defective. Under the criteria ‘‘applicable requirements of this Act.’’ section 182(f) NOx waivers at or before of section 107(d)(E)(3) itself, a state need Under section 107(d), the Administrator the redesignation of an area and only meet all applicable requirements, can only grant a request to redesignate therefore not required NOx RACT and have a fully approved plan that to attainment if the state has met all submissions to approve such contains all required elements. Thus applicable requirements under section redesignations. See the Bay Area USEPA’s interpretation is fully 110 and Part D, and after the state has redesignation at 59 FR 49361. consistent with the criteria of section Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20469

107(d)(3). Since USEPA has determined and illegal since those documents were D NSR) Requirements for Areas that the 15%, attainment demonstration, issued without opportunity for notice Requesting Redesignation to and contingency plan requirements are and comment and are not enforceable Attainment. not applicable to CAL, and has found regulations. The USEPA believes that its decision the SIP to be fully approvable without (21) Response: USEPA’s reference to not to insist on a fully-approved NSR them, the CAL area has fairly met the and reliance on those documents, all of program as a prerequisite to criteria of section 107(d)(3). Certainly which are either published or publicly redesignation is justifiable as an USEPA, after determining that these available and a part of the record of this exercise of the Agency’s general requirements are inapplicable, could not rulemaking, is in no way illegal under authority to establish de minimis in good faith conclude that the provisions of either the CAA or the exceptions to statutory requirements. redesignation request is defective Administrative Procedures Act. (The See Alabama Power Co. v. Costle, 636 because it fails to meet them. commentor cited no specific provisions F.2d 323, 360–61 (D.C. Cir. 1979). Under Thus USEPA concludes that, where it of either act). USEPA agrees that such Alabama Power Co. v. Costle, the has made a determination of attainment documents do not establish enforceable USEPA has the authority to establish de that results in the suspension of regulations; they do not purport to be minimis exceptions to statutory requirements, it may rely on that anything but guidance. That is precisely requirements where the application of determination and its consequences in why USEPA has performed this the statutory requirements would be of considering the approvability of a rulemaking—a notice-and-comment trivial or no value environmentally. redesignation request. rulemaking to take comment on its In this context, the issue presented is For the reasons stated above and statutory interpretations and factual whether the USEPA has the authority to elsewhere in this Notice, in the June 29, determinations in order to make a establish an exception to the 1995 Federal Register notices (60 FR binding and enforceable determination requirements of section 107(d)(3)(E) that 3372, 33781), in the May 10, 1995 regarding the CAL area. The June 29, the USEPA have fully-approved a SIP memorandum, and in the 60 FR 36,723 1995 Federal Register notice referred to meeting all of the requirements (July 18, 1995) Utah notice, USEPA does USEPA’s prior policy memoranda not as applicable to the area under section 110 not believe that the rulemaking violates binding the Agency to adopt the and part D of title I of the Act. Plainly, any section of the CAA, nor does it interpretations being proposed therein, the NSR provisions of section 110 and circumvent the redesignation but rather as a useful description of the part D are requirements that were requirements under section 107(d)(3)(E). rationale underlying those proposed applicable to the Ohio area seeking (20) Comment: Citizens Commissions interpretations. USEPA has explained redesignation at the time of the for Clean Air in the Lake Michigan Area the legal and factual basis for its submission of the request for stated that USEPA’s action is not a rulemaking in the June 29, 1995 Federal redesignation. Thus, on its face, section reasonable interpretation of USEPA’s Register notice and afforded the public 107(d)(3)(E) would seem to require that nondiscretionary mandate ‘‘to protect a full opportunity to comment on the State have submitted and the and enhance the quality of the Nation’s USEPA’s proposed interpretation and USEPA have fully-approved a part D air resources so as to promote the public determination fully consistent with the NSR program meeting the requirements health and welfare and the productive applicable procedural requirements of of the Act before the areas could be capacity of its population[.]}. section the Administrative Procedures Act. (The redesignated to attainment. 101(b)(1). procedural requirements of section Under the USEPA’s de minimis (20) Response: The USEPA disagrees 307(d) of the CAA do not apply to this authority, however, it may establish an with the commentor’s statement that its rulemaking since it is not among the exception to an otherwise plain action violates section 101(b)(1). Section rulemakings listed in section 307(d)(1).) statutory requirement if its fulfillment 101(b)(1) does not establish a (22) Comment: USEPA claims that, in would be of little or no environmental nondiscretionary duty; it is a statement accordance with the October 1994 value. In this context, it is necessary to of purpose—a purpose that USEPA is Nichols memorandum, ‘‘that areas being determine what would be achieved by not disregarding in this action. the area redesignated need not comply with the insisting that there be a fully-approved has attained the primary ozone requirement that a NSR program be part D NSR program in place prior to the standard, a standard designed to protect approved prior to redesignation so redesignation of the CAL area. For the public health with an adequate margin [long] as they have an approved following reasons, the USEPA believes of safety. (see section 109(b)(1)). Prevention of Significant Deterioration that requiring the adoption and full- USEPA’s action does not relax any of (PSD) SIP or delegated PSD authority.’’ approval of a part D NSR program prior the requirements that have led to the 60 FR at 31439. USEPA apparently to redesignation would not be of attainment of the standard. Rather, its believes it can replace NSR with PSD, significant environmental value in this action has the effect of suspending but the CAA does not grant the case. requirements, for additional pollution Administrator such discretion. Ohio has demonstrated that reductions, above and beyond those that (22) Response: The USEPA believes maintenance of the ozone National have resulted in the attainment of the that the CAL area may be redesignated Ambient Air Quality Standards health-based standard. to attainment notwithstanding the lack (NAAQS) will occur even if the (21) Comment: A commentor asserts of a fully-approved NSR program emission reductions expected to result that USEPA’s action violates the meeting the requirements of the 1990 from the part D NSR program do not Administrative Procedure Act and the Act amendments and the absence of occur. The emission projections made CAA through its reliance on such an NSR program from the by Ohio to demonstrate maintenance of unpublished memoranda of John contingency plan. This view, while a the NAAQS considered growth in point Calcagni and John Seitz and the General departure from past policy, has been set source emissions (along with growth for Preamble for the Implementation of forth by the USEPA as its new policy in other source categories) and were Title I of the Clean Air Act Amendments a memorandum from Mary Nichols, premised on the assumption that the of 1990, 57 FR l3498 (April 16, 1992). Assistant Administrator for Air and Prevention of Significant Deterioration According to the commentor, reliance Radiation, dated October 14, 1994, (PSD) program, rather than the part D on those documents is inappropriate entitled Part D New Source Review (part NSR, would be in effect, during the 20470 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations maintenance period. Under NSR, include ‘‘a program to provide for the Reasonably Available Control significant point source emissions enforcement of the measures described Technology (RACT) programs, which growth would not occur. Michigan in subparagraph (A), and regulation of have no corollary for attainment areas. assumed that NSR would not apply after the modification and construction of Moreover, the USEPA believes that redesignation to attainment, and any stationary source within the areas those other required programs are therefore, assumed source growth covered by the plan as necessary to clearly within the scope of the term factors based on projected growth in the assure that NAAQS are achieved, ‘‘measure.’’ 4 economy and in the area’s population. including a permit program as required The USEPA’s logic in treating part D (It should be noted that the growth in parts C and D.’’ (Emphasis added.) If NSR in this manner does not mean that factors assumed may be overestimates the term measures as used in section other applicable part D requirements, under PSD, which would restrain source 110 (a)(2)(A) and (c) had been intended including those that have been growth through the application of best to include PSD and NSR there would previously met and previously relied available control techniques.) Thus, have been no point to requiring that upon in demonstrating attainment, contrary to the assertion of the SIPs include both measures and could be eliminated without an analysis commentor, Ohio has demonstrated that preconstruction review under parts C demonstrating that maintenance would there is no need to retain the part D NSR and D (PSD or NSR). Unless ‘‘measures’’ be protected. As noted above, Ohio has as an operative program in the SIP referred to something other than demonstrated that maintenance would during the maintenance period in order preconstruction review under parts C be protected with PSD in effect, rather to provide for continued maintenance of and D, the reference to preconstruction than part D NSR. Thus, the USEPA is the NAAQS. (If this demonstration had review programs in section 110(a)(2)(C) not permitting part D NSR to be not been made, NSR would have had to would be rendered mere surplusage. removed without a demonstration that have been retained in the SIP as an Thus, in section 110(a)(2) (A) and (C), it maintenance of the standard will be operative program since it would have is apparent that Congress distinguished achieved. Moreover, the USEPA has not been needed to maintain the ozone ‘‘measures’’ from preconstruction amended its policy with respect to the standard.) review. On the other hand, in other conversion of other SIP elements to The other purpose that requiring the provisions of the Act, such as section contingency provisions, which is that full-approval of a part D NSR program 161, Congress appeared to include PSD they may be converted to contingency might serve would be to ensure that within the scope of the term provisions only upon a showing that NSR would become a contingency ‘‘measures.’’ maintenance will be achieved without provision in the maintenance plan The USEPA believes that the fact that them being in effect. Finally, as noted required for these areas by section Congress used the undefined term above, the USEPA believes that the NSR 107(d)(3)(E)(iv) and 175A(d). These ‘‘measure’’ differently in different requirement differs from other provisions require that, for an area to be sections of the Act is germane. This requirements, and does not believe that redesignated to attainment, it must indicates that the term is susceptible to the rationale for the NSR exception receive full approval of a maintenance more than one interpretation and that extends to other required programs. plan containing ‘‘such contingency the USEPA has the discretion to As the USEPA has recently changed provisions as the Administrator deems interpret it in a reasonable manner in its policy, the position taken in this necessary to assure that the State will the context of section 175A. Inasmuch action is consistent with the USEPA’s promptly correct any violation of the as Congress itself has used the term in current national policy. That policy standard which occurs after the a manner that excluded PSD and NSR permits redesignation to proceed redesignation of the area as an from its scope, the USEPA believes it is without otherwise required NSR attainment area. Such provisions shall reasonable to interpret ‘‘measure,’’ as programs having been fully approved include a requirement that the State will used in section 175A(d), not to include and converted to contingency implement all measures with respect to NSR. That this is a reasonable provisions provided that the area the control of the air pollutant interpretation is further supported by demonstrates, as has been done in this concerned which were contained in the the fact that PSD, a program that is the case, that maintenance will be achieved SIP for the area before redesignation of corollary of part D NSR for attainment with the application of PSD rather than the area as an attainment area.’’ Based areas, goes into effect in lieu of part D part D NSR. on this language, it is apparent that NSR.3 This distinguishes NSR from (23) Comment: A violation does not whether an approved NSR program other required programs under the Act, occur until the third ‘‘exceedance’’, this must be included as a contingency such as inspection and maintenance and is deceptive and doesn’t help people get provision depends on whether it is a information that the air is polluted. ‘‘measure’’ for the control of the 3 The USEPA is not suggesting that NSR and PSD Even though .124 ppm is above the pertinent air pollutants. are equivalent, but merely that they are the same ‘‘standard’’ of 0.12 ppm; because of As the USEPA noted in the proposal type of program. The PSD program is a requirement in attainment areas and designed to allow new rounding that terrible air wouldn’t even regarding this redesignation request, the source permitting, yet contains adequate provisions be counted as an exceedances or term ‘‘measure’’ is not defined in to protect the NAAQS. If any information including violation. section 175A(d) and Congress utilized preconstruction monitoring, indicates that an area that term differently in different is not continuing to meet the NAAQS after redesignation to attainment, 40 CFR part 51 4 The USEPA also notes that in the case of the provisions of the Act with respect to the appendix S (Interpretive Offset Rule) or a 40 CFR Cleveland, Ohio area, all permits to install for major PSD and NSR permitting programs. For 51.165(b) program would apply. The USEPA volatile organic compound (VOC) emission sources example, in section 110(a)(2)(A), believes that in any area that is designated or and major VOC emission source modifications Congress required that SIPs include redesignated as attainment under section 107, but issued by the State in the moderate ozone experiences violations of the NAAQS, these nonattainment areas since November 15, 1992 have ‘‘enforceable emission limitations and provisions should be interpreted as requiring major complied with the 1.15 to 1.0 VOC emissions offset other control measures, means, or new or modified sources to obtain VOC emission ratio. In addition, permits to install cannot be techniques . . . as may be necessary or offsets of at least a 1:1 ratio, and as presuming that issued under the Prevention of Significant 1:1 NOX offsets are necessary. See October 14, 1994 Deterioration (PSD) program unless the applicant appropriate to meet the applicable memorandum from Mary Nichols entitled Part D can demonstrate that the increased emissions from requirements of the Act.’’ In section New Source Review (part D NSR) Requirements for the new or modified source will not result in a 110(a)(2)(C), Congress required that SIPs Areas Requesting Redesignation to Attainment. violation of the NAAQS. Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20471

Cleveland-Akron-Lorain’s ozone (24) Comment: A commenter was USEPA Quality Assurance manual gives monitors are not on all year. We should concerned that because of the more detailed guidance on operation of be monitoring year-round. We get redesignation to attainment the area ambient air monitors. The USEPA unusual weather in northeast Ohio. would become exempt from congestion audits the State and local agencies on a We’ve had temperatures in the 80’s mitigation and air quality (CMAQ) regular basis to ascertain that the during every month when we are not funds which local transit agencies relied appropriate quality assurance measures required by law to monitor. If we had on for new buses and expanded service are being implemented. In the case of a violation during these months (we thus increasing air pollution. the Cleveland local agency, the State air have had extreme haze then and lots of (24) Response: The federal CMAQ agency (Ohio Environmental Protection emergency room visits from respiratory program is designed to give additional Agency) is responsible for conducting patients), we have no way of knowing, money for air quality nonattainment accuracy audits on the air monitoring so these days don’t count, either. I am areas to use on transportation projects equipment being operated by the against the redesignation of Cleveland- that will improve the air quality and Cleveland local agency. In addition, the Akron-Lorain for these reasons. bring the area into attainment of the air USEPA conducts audits of the air (23) Response: Published guidance quality standards. The United States monitoring network. Precision and (Guideline for the Interpretation of Department of Transportation (USDOT) Accuracy audits are reported on a Ozone Air Quality Standards, January revised their CMAQ guidance on July regular basis to the USEPA and recorded 1979, EPA–450/4–79–003), which is 13, 1995, to allow redesignated areas to in the national AIRS data bank. This part of the ozone standard by reference have a 2 year transition period to insure information is available to the public. in 40 CFR part 50, appendix H, notes continuity in CMAQ funding for This oversight ensures the quality of the that the stated level of the standard is projects which are programmed in the data relied upon for redesignation. first 2 years of the transportation determined by defining the number of III. Rulemaking Action significant figures to be used in improvement program at the time the On June 29, 1995, USEPA proposed to comparison with the standard. For area is redesignated to attainment. determine that the 15% plan, attainment example, a standard level of 0.12 ppm Although Cleveland-Akron-Lorain will demonstration, and contingency means that measurements are to be lose the additional CMAQ funds after measures plan for the Cleveland-Akron- rounded to two decimal places (0.005 the 2-year transitional period, the Lorain area are no longer applicable rounds up), and therefore, 0.125 ppm is projects already programmed for funding will now be able to continue requirements, since the area has the smallest three-decimal implementation. Air pollution is not attained the ozone NAAQS. The USEPA concentration value in excess of the expected to increase because the stricter received several comments pertaining to level of the standard that is considered standards for new cleaner cars, trucks the proposed rulemaking. These an exceedance. and buses will help to decrease comments were considered and Since ozone levels decrease pollutant emissions. The USEPA responses are detailed in the above significantly in the colder parts of the believes the air pollution emissions will section of the rulemaking on the year in many areas, ozone is required to thus continue to decrease or at least determination of attainment. USEPA be monitored at monitors only during maintain the levels that have brought believes that the determination of the ‘‘ozone season’’ which is listed in the area into attainment. attainment is still warranted and is Appendix D to 40 CFR part 58 for Ohio (25) Comment: The 15% plan taking final action to determine that the as April through October. This seasonal approved for Greater Cleveland-Akron- requirements for a 15% emissions definition was initially set in 1986 Lorain fell short of the required reduction plan, attainment based on temperature data. Months reduction because the area did not demonstration, and contingency where the monthly mean daily choose to do reformulated gasoline. The measures plan are not applicable at this maximum temperature is less than 55 area has not met this requirement and time. degrees Fahrenheit were generally should not be redesignated. On June 15, 1995, USEPA proposed to excluded from the season. In Cleveland- (25) Response: USEPA determined approve the OEPA request for Akron-Lorain, this occurs from that, based on USEPA’s determination redesignation to attainment and the November through March. In different of attainment, the requirement for a maintenance plan for ozone for the CAL areas of the country where months are 15% reduction in volatile organic moderate nonattainment area counties cooler than 55 degrees Fahrenheit, emissions in the area is no longer of Lorain, Cuyahoga, Lake, Ashtabula, ozone concentrations greater than .08 applicable. See the final action also Geauga, Medina, Summit, and Portage. ppm are unlikely to occur. In addition contained in this final rulemaking. The USEPA received about 50 comment actual ozone monitoring data for the Since this is no longer an applicable letters pertaining to the proposed Cleveland-Akron-Lorain area collected requirement, the area is not required to rulemaking. The comments were from 1987 though 1994 for the months meet it before the CAL area can be considered and responses are detailed of April and October show only three redesignated. The 15% reduction plan in the above section of the rulemaking recorded concentrations above .100 that was submitted for the CAL area did on the ozone redesignation request. The parts per million. The highest not rely on reformulated gasoline to USEPA believes that the redesignation monitored concentration was .109 parts achieve the emissions reduction. requirements of Section 107(d) are per million during October 1992. The (26) Comment: Several commenters satisfied and is taking final action to ozone NAAQS of .12 ppm was not believed there was a potential conflict of approve the requests for redesignation exceeded in the Cleveland-Akron-Lorain interest when the same entity (i.e. the to attainment and the maintenance plan area for the months of April and October City of Cleveland) does the monitoring for the CAL counties of Lorain, from 1987 though 1994. Given the and also applies for redesignation. Cuyahoga, Lake, Ashtabula, Geauga, generally lower temperatures of the (26) Response: The ambient air data Medina, Summit, and Portage. other winter months compared to April collected by State and local agencies are and October, it is expected that these required to meet very specific quality IV. Boilerplate Regulatory Language months would not have monitored an assurance measures that are detailed in USEPA finds that there is good cause exceedance of the ozone NAAQS. 40 CFR 58.10 and appendix A. The for this redesignation, SIP revision, and 20472 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations determination of attainment to become simply approve requirements that the not affect the finality of this rule for the effective immediately upon publication State is already imposing. Therefore, purposes of judicial review nor does it because a delayed effective date is because the federal SIP-approval does extend the time within which a petition unnecessary due to the nature of a not impose any new requirements, I for judicial review may be filed, and redesignation to attainment, certify that it does not have a significant shall not postpone the effectiveness of determination of attainment, which impact on any small entities affected. such rule or action. This action may not exempts the areas from certain Clean Moreover, due to the nature of the be challenged later in proceedings to Air Act requirements that would other federal-state relationship under the enforce its requirements. (See section wise apply to it. The immediate CAA, preparation of a regulatory 307(b)(2).) effective date for this redesignation is flexibility analysis would constitute authorized under both 5 U.S.C. federal inquiry into the economic List of Subjects in 40 CFR Part 52 553(d)(1), which provides that reasonableness of state action. The CAA Air pollution control, Nitrogen rulemaking actions may become forbids USEPA to base its actions Oxides, Ozone, Volatile organic effective less than 30 days after concerning SIPs on such grounds. compounds. publication if the rule ‘‘grants or Union Electric Co. v. U.S. E.P.A., 427 recognizes an exemption or relieves a U.S. 246, 256–66 (S.Ct. 1976); 42 U.S.C. 40 CFR Part 81 restriction’’ and section 553(d)(3), 7410(a)(2). Air pollution control. which allows an effective date less than Under sections 202, 203, and 205 of Dated: April 4, 1996. 30 days after publication ‘‘as otherwise the Unfunded Mandates Reform Act of provided by the agency for good cause 1995 (Unfunded Mandates Act), signed Valdas V. Adamkus, found and published with the rule.’’ into law on March 22, 1995, USEPA Regional Administrator. Nothing in this action should be must undertake various actions in Chapter I, Title 40 of the Code of construed as permitting, allowing or association with proposed or final rules Federal Regulations is amended as establishing a precedent for any future that include a Federal mandate that may follows: request for revision to any SIP. USEPA result in estimated costs of $100 million shall consider each request for revision or more to the private sector, or to State, PART 52Ð[AMENDED] to the SIP in light of specific technical, local, or tribal governments in the economic, and environmental factors aggregate. 1. The authority citation for Part 52 and in relation to relevant statutory and Through submission of the state continues to read as follows: regulatory requirements. implementation plan or plan revisions Authority: 42 U.S.C. 7401–7671q. This action has been classified as a approved in this action, the State and Table 3 action for signature by the any affected local or tribal governments 2. Section 52.1885 is amended by Regional Administrator under the have elected to adopt the program adding paragraphs (b)(10) and (w) to procedures published in the Federal provided for under section 175A of the read as follows: Register on January 19, 1989 (54 FR Clean Air Act. The rules and § 52.1885 Control Strategy: Ozone. 2214–2225), as revised by a July 10, commitments being proposed for 1995, memorandum from Mary Nichols, approval in this action may bind State, * * * * * Assistant Administrator for Air and local and tribal governments to perform (b) * * * Radiation. The Office of Management certain actions and also may ultimately (9) Lorain, Cuyahoga, Lake, Ashtabula, and Budget (OMB) has exempted this lead to the private sector being required Geauga, Medina, Summit, and regulatory action from Executive Order to perform certain duties. To the extent Portage Counties. 12866 review. that the rules and commitments being * * * * * Under the Regulatory Flexibility Act, proposed for approval by this action (w) Determination—USEPA is 5 U.S.C. 600 et seq., USEPA must will impose or lead to the imposition of determining that, as of May 7, 1996, the prepare a regulatory flexibility analysis any mandate upon the State, local or Cleveland-Akron-Lorain ozone assessing the impact of any proposed or tribal governments either as the owner nonattainment area (which includes the final rule on small entities (5 U.S.C. 603 or operator of a source or as a regulator, Counties of Ashtabula, Cuyahoga, and 604). Alternatively, USEPA may or would impose or lead to the Geauga, Lake, Lorain, Medina, Portage certify that the rule will not have a imposition of any mandate upon the and Summit) have attained the ozone significant impact on a substantial private sector, USEPA’s action will standard and that the reasonable further number of small entities. Small entities impose no new requirements; such progress and attainment demonstration include small businesses, small not-for- sources are already subject to these requirements of section 182(b)(1) and profit enterprises, and government requirements under State law. related requirements of section 172(c)(9) entities with jurisdiction over Accordingly, no additional costs to of the Clean Air Act do not apply to the populations of less than 50,000. State, local, or tribal governments, or to area. Redesignation of an area to attainment the private sector, result from this under section 107(d)(3)(E) of the CAA action. The USEPA has also determined * * * * * does not impose any new requirements that this action does not include a PART 81ÐDESIGNATION OF AREAS on small entities. Redesignation is an mandate that may result in estimated FOR AIR QUALITY PLANNING action that affects the status of a costs of $100 million or more to State, PURPOSESÐOHIO geographical area and does not impose local, or tribal governments in the any regulatory requirements on sources. aggregate or to the private sector. 1. The authority citation for part 81 The Administrator certifies that the Under section 307(b)(1) of the Clean continues to read as follows: Air Act, petitions for judicial review of approval of the redesignation request Authority: 42 U.S.C. 7401–7671q. will not affect a substantial number of this action must be filed in the United small entities. States Court of Appeals for the 2. In § 81.336 the ozone table is SIP approvals under section 110 and appropriate circuit by July 8, 1996. amended by revising the entry for the subchapter I, Part D of the CAA do not Filing a petition for reconsideration by Cleveland-Akron-Lorain Area to read as create any new requirements, but the Administrator of this final rule does follows: Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20473

§ 81.336 Ohio. * * * * *

OHIOÐOZONE

Designation Classification Designated area Date 1 Type Date 1 Type

******* Cleveland-Akron-Lorain Area ...... May 7, 1996 ...... Attainment. Ashtabula County Cuyahoga County Geauga County Lake County Lorain County Medina County Portage County Summit County

******* 1 This date is November 15, 1990 unless otherwise noted.

* * * * * available at: EPA Region V docket room Dated: April 22, 1996. [FR Doc. 96–11133 Filed 5–6–96; 8:45 am] at the above address and at the East David A. Ullrich, BILLING CODE 6560±50±P Bethel City Hall and the Minnesota Acting Regional Administrator, U.S. EPA, Pollution Control Agency Public Region V. Library, 520 Lafayette RD. St. Paul, MN 40 CFR part 300 is amended as 40 CFR Part 300 55155–4194. follows: [FRL±5468±7] SUPPLEMENTARY INFORMATION: The site to PART 300Ð[AMENDED] be deleted from the NPL is the East National Oil and Hazardous Bethel Demolition Landfill Site in 1. The authority citation for part 300 Substances Contingency Plan; Anoka County, Minnesota. A Notice of continues to read as follows: National Priorities List Update Intent to Delete was published March Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C. AGENCY: Environmental Protection 13, 1996, (61 FR 10298) for this site. The 9601–9657; E.O. 12777, 56 FR 54757, 3 CFR, Agency. closing date for comments on the Notice 1991 Comp.; p.351; E.O. 12580, 52 FR 2923, 3 CFR, 1987 Comp.; p. 193. ACTION: Notice of Deletion of the East of Intent to Delete was April 12, 1996. Bethel Demolition Landfill Superfund EPA received no comments. Appendix B—[Amended] Site from the National Priorities List The EPA identifies sites which appear 2. Table 1 of appendix B to part 300 (NPL). to present a significant risk to public is amended by removing the East Bethel SUMMARY: The Environmental Protection health, welfare, or the environment and Demolition Landfill Site, East Bethel Agency (EPA) announces the deletion of it maintains the NPL as the list of those Township, Minnesota.P sites. Sites on the NPL may be the the East Bethel Demolition Landfill site [FR Doc. 96–11218 Filed 5–6–96; 8:45 am] subject of Hazardous Substance in Anoka, Minnesota from the National BILLING CODE 6560±50±P Priorities List (NPL). The NPL is Response Trust Fund-financed remedial Appendix B of 40 CFR Part 300 which actions. Any site deleted from the NPL is the National Oil and Hazardous remains eligible for Fund-financed 40 CFR Part 355 Substances Contingency Plan (NCP), remedial actions in the unlikely event [Docket 300 PQ±R2; FRL±5468±5] which EPA promulgated pursuant to that conditions at the site warrant such Section 105 of the Comprehensive action. Section 300.425(e)(3) of the NCP RIN 2050±AD50 Environmental Response, states that Fund-financed actions may Compensation, and Liability Act of 1980 be taken at sites deleted from the NPL Extremely Hazardous Substances (CERCLA), as amended. EPA and the in the unlikely event that conditions at AGENCY: Environmental Protection State of Minnesota have determined that the site warrant such action. Deletion of Agency (EPA). all appropriate Fund-financed responses a site from the NPL does not affect ACTION: Final rule. under CERCLA have been implemented responsible party liability or impede and that no further response by Agency efforts to recover costs SUMMARY: Today, EPA is implementing responsible parties under CERCLA is associated with response efforts. one of its regulatory reform appropriate. commitments set forth in its June 1, EFFECTIVE DATE: May 7, 1996. List of Subjects in 40 CFR Part 300 1995, Report to the President. EPA is FOR FURTHER INFORMATION CONTACT: Rita Environmental protection, Hazardous taking final action on two proposed Garner-Davis at (312) 886–2440, Waste, Chemicals, Hazardous rules that modify the extremely Associate Remedial Project Manager, substances, Reporting and hazardous substances (EHS) list and Superfund Division, U.S. EPA—Region reportable quantities under section 302 recordkeeping requirements, Superfund, V, 77 West Jackson Blvd., Chicago, IL of the Emergency Planning and Water pollution control, Water supply. 60604. Information on the site is Community Right-to-Know Act of 1986 20474 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

(EPCRA), Title III of the Superfund U.S. Environmental Protection Agency FOR FURTHER INFORMATION CONTACT: The Amendments and Reauthorization Act CERCLA Docket Office, Crystal Gateway RCRA/UST, Superfund, and EPCRA of 1986. EPA is raising the statutory #1, 1st Floor, 1235 Jefferson Davis Hotline at 800/424–9346 (in the reportable quantities (RQs) for 202 Highway, Arlington, VA 22202 [Docket Washington, DC metropolitan area, EHSs. EPA is also removing four Number 300 PQ–R2]. The docket is contact 703/486–3323). The chemicals that do not meet the listing available for inspection between the Telecommunications Device for the Deaf criteria from the EHS list. Through these hours of 9 a.m. and 4 p.m., Monday (TDD) Hotline number is 800/553–7672 actions, the Agency is reducing the through Friday, excluding Federal (in the Washington, DC metropolitan burden of reporting for facilities holidays. Appointments to review the area, contact 703/412–9810); or John presently required to report certain docket can be made by calling 703/603– Ferris, Chemical Engineer, Chemical releases unnecessarily. Protection of 9232. The public may copy a maximum Emergency Preparedness and human health and the environment is of 266 pages from any regulatory docket Prevention Office (5101), U.S. maintained while better focusing at no cost. If the number of pages copied Environmental Protection Agency, 401 attention on releases that may require a exceeds 266, however, an administrative M Street S.W., Washington, DC 20460, response by state and/or local fee of $25 and a charge of $0.15 per page or at (202) 260–4043. authorities. for each page after page 266 will be EFFECTIVE DATE: July 8, 1996. incurred. The docket will mail copies of SUPPLEMENTARY INFORMATION: ADDRESSES: materials to requestors who are outside Regulated entities. Regulated Docket: Copies of materials relevant to of the Washington, DC metropolitan categories and entities include: this rulemaking are contained in the area.

Category Regulated entities

Industry ...... All facilities handling chemicals on the extremely hazardous substances list may be subject to this regulation. Federal Government Executive Order 12856 requires all federal agencies to comply with sections 302 and 304 of EPCRA. State and Local Gov- State emergency response commissions and local emergency planning committees receive the information provided ernments. under EPCRA section 304. State/local government facilities handling chemicals on the extremely hazardous sub- stances list may be subject to this regulation.

This table is not intended to be I. Introduction EPCRA. Section 302(a)(2) required that exhaustive, but rather provide a guide the list be identical to the list compiled a. Statutory Authority for readers regarding entities likely to be by EPA in 1985 as part of EPA’s regulated by this action. To determine This regulation is issued under Chemical Emergency Preparedness whether your facility is regulated by this sections 302, 304 and 328 of the Program. Under section 302(a)(4), EPA action, you should carefully examine Emergency Planning and Community is authorized to revise the list, but in the applicability criteria in section Right-to-Know Act (EPCRA). undertaking any such revision, EPA 355.40 of title 40 of the Code of Federal b. Background must take into account the ‘‘toxicity, Regulations. If you have questions reactivity, volatility, dispersibility, regarding the applicability of this action On October 17, 1986, the President combustibility, or flammability of a to a particular entity, consult the person signed into law the Superfund substance.’’ The term ‘‘toxicity’’ is listed in the preceding FOR FURTHER Amendments and Reauthorization Act defined to include ‘‘any short- or long- INFORMATION CONTACT section. of 1986 (SARA), Pub. L. 99–499 (1986). term health effects which may result Title III of SARA, the Emergency from a short-term exposure to the Contents: The contents of today’s Planning and Community Right-to- substance.’’ preamble are listed in the following Know Act of 1986 (EPCRA), established EPA published the list of 402 outline: a program designed to encourage state extremely hazardous substances on I. Introduction and local planning and preparedness for November 17, 1986 (51 FR 41570). On a. Statutory Authority spills or releases of extremely hazardous the same day, EPA proposed the b. Background substances and to provide the public deletion of 40 substances from the EHS c. Today’s Rulemaking and local governments with information list on the basis that their original listing II. RQ Adjustment Methodology concerning chemical releases and the was in error. On April 22, 1987, 52 FR a. TPQ methodology potential chemical risks in their 13388, EPA announced that it was b. CERCLA RQ methodology c. Proposed methodology communities. deferring the proposed delisting of these d. Alternative chosen Subtitle A of the Act establishes the substances, pending an evaluation of the III. Response to Comments on the August 30, framework for local emergency long-term effects from short-term 1989 Proposal planning. Under section 302, a facility exposure to each of them. This deferral a. Reportable Quantities and Threshold which has present an extremely was in response to comments from Planning Quantities hazardous substance (EHS) in excess of members of the public who argued that b. Sulfur Dioxide its threshold planning quantity (TPQ) the proposed rule was premature. On c. Hydrogen Chloride/Hydrochloric Acid must notify its state emergency response November 23, 1987, the District Court d. Sulfur Trioxide commission (SERC) and participate, as for the District of Columbia in A.L. IV. Listing Corrections necessary, with the local emergency Laboratories, Inc. v. Environmental V. Response to Comments on the October 12, Protection Agency issued an order 1994 Proposal planning committee (LEPC) in the local VI. Regulatory Analysis emergency planning process. requiring EPA to remove several a. Executive Order 12866 Section 302 directed EPA to publish substances from the EHS list, reasoning b. Regulatory Flexibility Act the list of extremely hazardous that Congress did not intend to include c. Paperwork Reduction Act substances as an interim final rule in the statutorily designated list d. Unfunded Mandates within 30 days of the enactment of substances listed due to ‘‘clerical error.’’ Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20475

It is on the basis of this ruling that EPA reportable quantities for these chemicals quantity of the chemical which when proposed on October 12, 1994 (59 FR the same as their threshold planning released will generate the level of 51816), the removal of four chemicals. quantities. EPA is also finalizing the concern at a distance of 100 meters. Section 304 of EPCRA establishes proposal to remove phosphorus requirements for immediate reporting of pentoxide, diethylcarbamazine citrate, b. CERCLA RQ Methodology certain releases of EHSs and hazardous fenitrothion and tellurium from the EHS The CERCLA RQ methodology uses a substances (HSs) listed under the list. two step process to determine the Comprehensive Environmental On August 30, 1989, EPA proposed possibility of harm from the release of Response, Compensation, and Liability the adjustment of the TPQ for a hazardous substance. The Act (CERCLA) to SERCs and LEPCs, isophorone diisocyanate. Today’s rule methodology begins with an evaluation similar to the release reporting reflects the current TPQ for isophorone of six intrinsic physical, chemical, and provisions of CERCLA section 103. diisocyanate. However, an adjusted TPQ Although similar, CERCLA section 103 and RQ will be published in a future toxicological properties associated with and EPCRA section 304 differ somewhat notice. each hazardous substance. These in purpose. CERCLA provides generally properties are known as the ‘‘primary II. RQ Adjustment Methodologies for federal planning and coordination of criteria.’’ Each substance is evaluated entities and for federal contingency a. TPQ Methodology according to the applicable ‘‘primary plans. CERCLA section 103 requires criteria,’’ and an RQ value is determined EPA’s methodology for establishing for each applicable criterion. The federal notification for any release of a threshold planning quantities for EHSs hazardous substance in an amount equal ‘‘primary criteria’’ RQ for each under EPCRA consists of initially hazardous substance is the lowest value to or in excess of its RQ. EPCRA is determining the minimum short term designed to protect the public in the of all the applicable criteria. For exposure concentration in air that example, if the Agency evaluates event of dangerous chemical releases would lead to serious irreversible health through the establishment of local and hazardous substance A under the RQ effects in the general population when adjustment methodology, identifies both state emergency response capability. exposed to the substance for relatively EPCRA section 304 requires, in addition aquatic toxicity and mammalian toxicity short duration. This is the so-called data on the substance, and sets a to any federal notification, notification ‘‘level of concern.’’ (See the Threshold to state and local authorities for any tentative RQ of 100 pounds on the basis Planning Quantities Technical Support of aquatic toxicity and 1000 pounds on release of an EHS in an amount equal Document, April 7, 1987.) the basis of mammalian toxicity, the 100 to or in excess of its RQ. The potential There are two ways to determine a pound value will be the applicable hazards posed by EHSs make state and ‘‘level of concern.’’ If it is available for local notification critical to effective and a chemical, EPA may use one-tenth of ‘‘primary criteria’’ RQ. Upon completion timely emergency response. EHSs are the Immediately Dangerous to Life and of the evaluation of the ‘‘primary acutely toxic chemicals which cause Health (IDLH) level established by the criteria’’ RQ, secondary adjustment both severe sort- and long-term health National Institute for Occupational criteria based on the natural degradation effects after a single, brief exposure. In Safety and Health (NIOSH). The IDLH is processes of BHP (biodegradation, many cases, local and state authorities the maximum concentration of a hydrolysis, and photolysis) are assessed. may be the first and only responders to substance in air to which a healthy If a hazardous substance, when released the release of an EHS. worker can be exposed for 30 minutes into the environment, degrades (within Notifications are required if a release and escape without suffering 5 days) to a less hazardous form by one of an EHS or HS is equal to or above the irreversible health effects or impairing or more of the BHP processes, its reportable quantity (RQ). Section 304(a) symptoms. If the IDLH value is not primary criteria RQ is raised one level; of EPCRA provides that chemicals on available, as is the case for most of the if the substance degrades to a more the EHS list which do not have an RQ EHSs, EPA determines an IDLH hazardous form, its RQ may be lowered. assigned to them by regulation, will equivalent value using available toxicity have a reportable quantity of 1 pound. c. Proposed Methodology data with an adjustment factor. Currently, 204 EHSs have the statutory The level of concern is then divided For approximately 60 of the 232 one-pound RQ. On August 30, 1989 (54 by a factor ‘‘V’’ which represents the chemicals proposed for adjustment on FR 35988), EPA proposed to modify the extent to which the material can August 30, 1989, the CERCLA statutory RQs for 232 EHSs using a volatilize and become airborne and methodology adjusted RQs that were too proposed modification of the CERCLA dispersed. This approach is explained high for purposes of emergency RQ methodology. in the November 17, 1986 Federal notification under EPCRA. The c. Today’s Rulemaking Register notice (51 FR 41580). Dividing reportable quantities under the CERCLA EPA is today taking final action on the the level of concern by ‘‘V’’ provides the methodology in these cases are higher two proposed rules published in the index value for an EHS. than the substances’ EPCRA threshold The final threshold planning quantity Federal Register on August 30, 1989 planning quantity. To rectify this is then determined by a relative ranking and October 12, 1994. As discussed discrepancy, the August 30, 1989, notice of the index values for all of the below, EPA is not yet taking final action proposed to modify the CERCLA RQ chemicals on the EHS list. The index on some aspects of the proposed rules. methodology by integrating the TPQ values and their corresponding EPA is adjusting the reportable into the CERCLA RQ methodology. As threshold planning quantities are found quantities of 204 extremely hazardous proposed, after the two-step CERCLA in the Threshold Planning Quantity substances.1 This rule will make the RQ process had been applied to the Technical Support Document. This chemicals, an additional step of 1 Although a total of 215 EHSs have one-pound approach is generally based on the comparing the tentative RQ to the statutory RQs, this rule is adjusting the RQs of 204 substances’ TPQs was applied. If the of these EHSs. The remaining 11 EHSs with one- developing a rulemaking to adjust the CERCLA and TPQ was lower than the tentative RQ, pound statutory RQs were designated CERCLA EPCRA one-pound RQs for these 11 substances. The hazardous substances in a February 9, 1995 final substances are identified in 40 CFR Part 355 by the the RQ would be adjusted to the TPQ rule (60 FR 7824); the Agency is currently footnote ‘‘d.’’ level or lower. 20476 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations d. Alternative Chosen determine the six TPQ quantities (1, 10, believes that the use of the TPQ In the proposed rule of August 30, 100, 500, 1,000, and 10,000 pounds). methodology is appropriate to set RQs 1989, the Agency was seeking comment Since the TPQ methodology is based on for extremely hazardous substances. on the various alternatives that could be the possibility of harm from release, the However, because these chemicals are used to set the reportable quantities. At Agency believes that it is appropriate to not being added to the CERCLA the time the RQ adjustments were rely on it to adjust RQs as well. hazardous substance list, modification proposed, the Agency anticipated that Finally, like CERCLA RQs, EPCRA of the CERCLA RQ methodology is not the EHSs would be designated CERCLA RQs do not reflect a determination that warranted at this time. a release of a substance will always be hazardous substances as proposed on b. Sulfur Dioxide January 23, 1989 (54 FR 3388). The hazardous at the RQ level and never The adjusted RQ for sulfur dioxide Agency, however is not finalizing at this hazardous below that level. EPA has not was proposed at 100-pounds. Several time the proposal to designate these attempted to make such a determination commenters from the petroleum chemicals as CERCLA hazardous because the actual hazard will vary with industry commented that the 100-pound substances. Today’s rule does not affect the unique circumstances of the release. RQ is too low and would require any CERCLA hazardous substances. For this reason, EPA encourages SERCs needless and excessive reporting for the Therefore, the Agency is not utilizing or and LEPCs to consider the RQ during petroleum sector. In the petroleum modifying the CERCLA RQ their emergency planning process sector, sulfur dioxide is a combustion methodology at this time. Instead, the involving facilities with extremely product created when hydrogen sulfide Agency has decided to adjust the 1 hazardous substances. from crude oil and natural gas is flared. pound EHS RQs to the same level as III. Response to Comments on August 2 The commenters referenced the Federal their respective TPQs. 30, 1989 Proposal Clean Air Act New Source Performance The Agency believes that it is Many of the comments received in Standards that they state allow coal appropriate to rely on the TPQ response to the Federal Register notice fired power plants to emit 200,000 methodology rather than the CERCLA of August 30, 1989, are not addressed pounds per day of sulfur dioxide. methodology to adjust EHS RQs for today because they concerned the The proposed RQ for sulfur dioxide several reasons. designation of EHSs as CERCLA was set at 100-pounds based on the First, reporting of EHS releases is hazardous substances and the proposed modified CERCLA RQ required because EHSs are acutely toxic adjustment of RQs for those substances methodology. In the final rule of April and will potentially pose an immediate under CERCLA. As stated above, the 22, 1987 (52 FR 13378), the TPQ for hazard upon release. Thus, EHS RQs Agency is not taking action on sulfur dioxide was adjusted to 500- should be adjusted based on substances’ modifying the CERCLA RQ pounds. Because there is no 500-pound potential for immediate effects. The methodology or listing EHSs as CERCLA CERCLA RQ level, the sulfur dioxide TPQ methodology, designed specifically hazardous substances at this time. For a RQ was proposed at 100-pounds. As for the EHSs, is based on such effects, complete list of comments and the stated earlier in this rule, EPA is not utilizing a ‘‘level of concern’’ based Agency’s responses, see the responses to modifying the CERCLA RQ upon short-term exposure comments document in the Docket of methodology at this time, but is concentrations that could lead to serious this Federal Register notice. adjusting RQs to the TPQ level. The irreversible health effects. final EPCRA RQ for sulfur dioxide is Second, use of the CERCLA secondary a. Threshold Planning Quantity 500-pounds. criteria of BHP is inappropriate for Methodology EPA does not agree that the existence adjusting EHS RQs. The BHP analysis is The Agency received several of a 200,000 pounds per day standard used to increase a substance’s RQ by comments on its proposed use of the for one sector means that the EPCRA RQ taking into account its natural chemical TPQ methodology to adjust RQs. These should be set at a higher RQ level. degradation. EHSs can cause severe commenters believed that the use of the Sulfur dioxide is used in many health effects after only a single, brief TPQ methodology was inappropriate industries other than the petroleum exposure which may occur prior to any because the RQ and the TPQ address sector, for example, sulfuric acid chemical degradation. The BHP analysis different regulatory requirements. production, water purification and the and higher RQs based on chemical EPA believes that the TPQ pulp and paper industry. While flares degradation are not suitable in this methodology is appropriate for these and stacks are designed to lift the sulfur context. chemicals. Although the RQs and TPQs dioxide into the atmosphere, ground Third, as with RQs, the Agency trigger two distinct notification level releases of sulfur dioxide, adjusts TPQs based on the possibility of requirements, both quantities are including releases from containers harm from the release of a specific adjusted based on the possibility of storing sulfur dioxide may be more substance. In the Threshold Planning harm from the release of a specific hazardous to the community. Since EPA Quantity Technical Support Document substance. Thus, even though TPQ sets one RQ to incorporate all probable to the proposed rule of November 17, (EPCRA § 302) notification is not release scenarios, EPA believes that the 1986 (51 FR 41570) to adjust TPQs, EPA triggered by an actual release, the TPQ 500 pound RQ based on the substance’s stated that the TPQ should represent a is based upon the potential harm from IDLH value provides an appropriate quantity that could cause serious health an actual release. In addition, the level. consequences if an accident were to particular concern with EHSs is that EPA notes that the release reporting occur with that quantity. Consistent they will potentially pose an immediate requirements of EPCRA section 304 with this statement, EPA modelled a hazard upon release. Notification work in conjunction with the federally variety of release scenarios to generate requirements should be based on the permitted release exemption under the relative ranking of each EHS and to potential for these immediate effects, CERCLA section 101(10) and the and the TPQ methodology (developed continuous release reporting 2 The release of EHSs which are already CERCLA hazardous substances is reportable at the RQ levels specifically for the EHS list) is in fact requirements under CERCLA section applicable under CERCLA. (EPCRA section 304 based upon the potential for immediate 103. Releases that are federally (a)(1)). effects. For these reasons, the Agency permitted and those that are continuous Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20477

have reduced reporting requirements If LC50 or LD50 data are not available, Tellurium Development Association under EPCRA section 304. then LCLO or LDLO data are used. also submitted a study that reported an Substances that meet one of these c. Hydrogen Chloride LD50 greater than 5000 mg/kg for criteria have the potential for causing tellurium metal. Based on this Several commenters correctly pointed harm if accidently released and are, information, EPA is deleting tellurium out that the phrase ‘‘gas only’’ was therefore, designated as EHSs. from the list of EHSs. omitted from the hydrogen chloride EPA listed phosphorus pentoxide listing in the tables proposing to revise based on information presented in an V. Response to Comments on October Appendices A and B to 40 CFR part 355. abstract. This source reported an LC50 of 12, 1994, Proposal In today’s rule, this omission is 0.061 mg/L for guinea pigs and an LC50 corrected. of 0.271 mg/L for mice exposed for 1 EPA received one comment from the In the final rule published in the hour to smoke generated from burning Clean Water Fund of North Carolina Federal Register December 27, 1989 (54 red phosphorus. A significant limitation objecting to the removal of phosphorus FR 53057), EPA raised the reportable of this study is that the toxic effects pentoxide from the EHS list. The Clean quantity for Hydrogen chloride (gas cannot be directly related to phosphorus Water Fund questions the validity of an only) to 5,000 pounds. This is the same pentoxide. Therefore, these data are unpublished 1987 toxicity study as the reportable quantity for hydrogen insufficient for listing phosphorus showing no toxic effects in exposed chloride (a synonym of hydrochloric pentoxide as an EHS. In addition, the animals, at levels up to .99 mg/L of acid) under CERCLA section 103. Elemental Phosphorus Ad Hoc Solid phosphorus pentoxide aerosol. That d. Sulfur Trioxide Waste Group submitted a study that study however, did not determine the indicated that the LC50 for rats exposed level of the chemical in question in the Several commenters believed that a to phosphorus pentoxide for 4 hours is reportable quantity for sulfur trioxide chamber atmosphere. The analytical greater than 0.99 mg/L, well above the method determined only total above 100 pounds is warranted. EPA, .5 mg/L listing criteria. Based on the however, disagrees. The 100 pound TPQ phosphorus, which was then converted insufficient information in the original to an equivalent concentration of for sulfur Trioxide is based upon acute study and the information of the more phosphorus pentoxide in air. The Clean toxicity. EPA agrees that some releases recent study, EPA has decided to Water Fund argues, therefore, that the of sulfur trioxide above 100-pounds may remove phosphorus pentoxide from the not be hazardous based upon the EHS list. pentoxide should remain on the list conditions of the release (e.g. from a EPA listed diethylcarbamazine citrate because the 1980 and 1982 combustion flare or stack). However, 100-pound based on information presented in a experiments established that the releases of sulfur trioxide at ground Russian data compilation that listed an pentoxide was a major component of the level (e.g. releases during sulfuric acid LC50 for rats equal to 0.309 mg/L for a smoke and ‘‘because the analytical and explosive manufacturing) may pose 4-hour exposure. Review of this techniques employed by the 1980 study a hazard to the community. An RQ information indicated that the toxicity may have actually synthesized the incorporates all probable release values presented were unverifiable pentoxide from other (possibly less scenarios so that persons off-site can because the study details were not dangerous) phosphorus compounds determine the level of response available. In addition, SmithKline actually present in the test chamber.’’ necessary. Therefore, the Agency Beecham submitted a study that The Agency assumes Clean Water Fund believes that the 100-pound RQ for reported no deaths of rats from exposure believes that because the pentoxide sulfur trioxide based upon its acute to either 1.63 mg/L or 2.38 mg/L for 1 could have been synthesized from less toxicity is appropriate. hour. Based on the poor quality of the toxic compounds, the pentoxide IV. Listing Corrections original study and the additional presented the toxic character of the test information received, EPA has decided chamber gas. EPA is making final a rule that was to remove diethylcarbamazine citrate originally proposed on October 30, from the EHS list. EPA disagrees. The 1980 and 1982 1994, to remove phosphorus pentoxide, EPA listed fenitrothion based on a studies show that, in burning the diethylcarbamizine citrate, finitrothion study that reported an LC50 equal to phosphorus, there is a potential for the and tellurium from the extremely 0.378 mg/L for a 4-hour exposure. EPA’s production of several oxides of hazardous substances list.3 review of this study concluded that a phosphorus. Regardless of how Substances are listed as EHSs based toxic impurity had resulted in an pentoxide was formed (as noted by the on toxicity criteria. Substances are erroneously low value for the LC50. In Clean Water Fund) or whether the screened using acute animal toxicity addition, a surfactant was present that various oxide compounds are more or data for the most sensitive mammalian altered the permeability of the skin and less toxic, the fact still remains that the species and are placed on the list if they cell membranes of the test animals, studies did not distinguish which of the meet one of the following criteria: making them more susceptible to various oxides caused the high toxicity • 4 ≤ LC50 0.5 mg/L fenitrothion’s toxic effect. Information of the smoke. While the 1987 study • 5 ≤ Dermal LD50 50 mg/kg submitted by Sumitomo Chemical showed no toxicity of phosphorus • Oral LD ≤ 25 mg/kg 50 America, Inc., reported an LC50 greater pentoxide, it also is not conclusive than 2.210 mg/L. Based on the Agency’s 3 because it did not indicate a direct On October 30, 1994, EPA proposed the review and the additional information, adjustment of the TPQ for isophorone diisocyanate. measurement of phosphorus pentoxide fenitrothion is being deleted from the The final rule on this adjustment will be published in the chamber and the pentoxide could EHS list. in a future notice. have hydrolyzed to possibly less toxic 4 ‘‘LC ’’ refers to that concentration of a EPA listed tellurium metal based on 50 constituents. On balance, none of the substance in the air that is expected to cause the a study that reported an oral LD50 of 20 death of 50 percent of a defined experimental mg/kg. Review of this study indicted studies presented show that phosphorus population. pentoxide meets the toxicity criteria. 5 that sodium tellurate, which is listed as ‘‘LD50’’ refers to that dose of a substance Accordingly, EPA is removing the expected to cause the death of 50 percent of a an EHS, was used in the study rather defined experimental population. than tellurium metal. The Selenium chemical from the EHS list. 20478 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

VI. Regulatory Analyses c. Paperwork Reduction Act sector. Under section 202 of the UMRA, EPA generally must prepare a written a. Executive Order 12866 The information collection requirements contained in this final rule statement, including a cost-benefit Under Executive Order 12866, (58 FR analysis, for proposed and final rules 51,735) of October 4, 1993, the Agency have been approved by OMB under the provisions of the Paperwork Reduction with ‘‘Federal mandates’’ that may must determine whether the regulatory result in expenditures to State, local, action is ‘‘significant’’ and therefore Act, 44 U.S.C. 3501 et seq., and have been assigned OMB control number and tribal governments, in the aggregate, subject to review by the Office of or to the private sector, of $100 million 2050–0092 (EPA Information Collection Management and Budget (OMB) and the or more in any one year. Before Request No. 1395.2). Copies of the requirements of the Executive Order. promulgating an EPA rule for which a information collection requests may be The Order defines ‘‘significant written statement is needed, section 205 obtained from Sandy Farmer, OPPE regulatory action’’ as one that is likely of the UMRA generally requires EPA to Regulatory Information Division, U.S. to result in a rule that may: identify and consider a reasonable Environmental Protection Agency (1) Have an annual effect on the number of regulatory alternatives and (2136), 401 M Street, SW., Washington, economy of $100 million or more or adopt the least costly, most cost- DC 20460 or by calling (202) 260–2740. adversely affect in a material way the effective or least burdensome alternative As indicated in the Section I economy, a sector of the economy, that achieves the objectives of the rule. Introduction, the mandatory reporting productivity, competition, jobs, the The provisions of section 205 do not requirements under EPCRA section 304 environment, public health or safety, or apply when they are inconsistent with State, local or tribal governments or serve as a trigger for informing state and applicable law. Moreover, section 205 communities; local governments of a release, so that allows EPA to adopt an alternative other (2) Create a serious inconsistency or state and local personnel can evaluate than the least costly, most cost-effective otherwise interfere with an action taken the need for any necessary action in a or least burdensome alternative if the or planned by another agency; timely fashion. EPCRA section 304 also Administrator publishes with the final (3) Materially alter the budgetary requires the submittal of a written rule an explanation why that alternative impact of entitlements, grants, user fees, follow-up notice to the same state and was not adopted. Before EPA establishes or loan programs or the rights and local entities. any regulatory requirements that may obligations of recipients thereof; or The public reporting burden for the significantly or uniquely affect small (4) Raise novel legal or policy issues collection of information pursuant to governments, including tribal arising out of legal mandates, the EPCRA section 304 is estimated to take, governments, it must have developed President’s priorities, or the principles on average, 5 hours per response. This under section 203 of the UMRA a small set forth in the Executive Order. estimate includes the time required to government agency plan. The plan must It has been determined that this rule make the call and to develop the written provide for notifying potentially is not a ‘‘significant regulatory action’’ follow-up notice. affected small governments, enabling under the terms of Executive Order Because the RQs for almost all of the officials of affected small governments 12866 and is therefore not subject to substances included in today’s rule are to have meaningful and timely input in OMB review. to be raised, the net reporting and the development of EPA regulatory recordkeeping burden associated with b. Regulatory Flexibility Analysis proposals with significant Federal reporting releases of these substances intergovernmental mandates, and Pursuant to the Regulatory Flexibility under EPCRA section 304 is expected to informing, educating, and advising Act, 5 U.S.C. 601 et seq., whenever an decrease. As demonstrated in an small governments on compliance with agency is required to publish a notice of economic impact analysis (EIA), the the regulatory requirements. rulemaking for any proposed or final Agency estimates that the total burden EPA has determined that this rule rule, it must prepare and make available reduction for notification to SERCs and does not contain a Federal mandate that for public comment a regulatory LEPCs, and notification to 911 services may result in expenditures of $100 flexibility analysis that describes the in transportation-related incidents, and million or more for State, local, and effect of the rule on small entities (i.e., the completion of follow up reports will tribal governments, in the aggregate, or small businesses, small organizations, equate to 6,249 hours at a total cost the private sector in any one year. and small governmental jurisdictions). savings of $355,628 per year. Because the RQs for almost all of the This analysis is unnecessary, however, Send comments on the ICR to the substances included in today’s rule are if the agency’s administrator certifies Director, OPPE Regulatory Information to be raised, the net reporting and that the rule will not have a significant Division, U.S. Environmental Protection recordkeeping burden associated with economic effect on a substantial number Agency (2136), 401 M Street, SW., reporting releases of these substances of small entities. Washington, DC 20460; and to the under EPCRA section 304 is expected to EPA has examined this rule’s Office of Information and Regulatory decrease. As demonstrated in an potential effects on small entities as Affairs, Office of Management and economic impact analysis (EIA), the required by the Regulatory Flexibility Budget, 725 17th Street, NW., Agency estimates that the total burden Act. It has determined that today’s final Washington, DC 20503, marked reduction for notification to SERCs and rule will not have a significant ‘‘Attention: Desk Officer for EPA.’’ LEPCs, and notification to 911 services economic effect on a substantial number Include ICR number 1395.2 in any in transportation-related incidents, and of small entities. The overall economic correspondence. the completion of follow up reports will effect of this regulation has been equate to 6,249 hours at a total cost d. Unfunded Mandates Reform Act determined to equate to 6,249 hours of savings of $355,628 per year. Thus, burden reduction (with no added Title II of the Unfunded Mandates today’s rule is not subject to the burden) at a total cost saving of Reform Act of 1995 (UMRA), Public requirements of sections 202 and 205 of $355,628 per year to all regulated Law 104–4, establishes requirements for the UMRA. entities. Therefore, this regulation will Federal agencies to assess the effects of EPA has determined that this rule have a cost savings, and not have a their regulatory actions on State, local, contains no regulatory requirements that significant impact on small businesses. and tribal governments and the private might significantly or uniquely affect Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20479 small governments. Because the RQs for Community emergency response plan, Dated: April 29, 1996. almost all of the substances included in Community right-to-know, Contingency Carol M. Browner, today’s rule are to be raised, the net planning, Disaster assistance, Administrator. reporting and recordkeeping burden Emergency Planning and Community For the reasons set out in the associated with reporting releases of Right-to-Know Act, Extremely preamble, title 40, Chapter I of the Code these substances under EPCRA section hazardous substances, Hazardous of Federal Regulations is amended as 304 is expected to decrease. Small substances, Intergovernmental relations, follows: governments will no longer receive Natural resources, Penalties, Reportable notifications and written follow-up quantity, Reporting and recordkeeping PART 355ÐEMERGENCY PLANNING reports from facilities that have releases requirements, Superfund Amendments AND NOTIFICATION of extremely hazardous substances less and Reauthorization Act, Threshold that the substances’ TPQ. 1. The authority citation for part 355 planning quantity, Water pollution continues to read as follows: List of Subjects in 40 CFR Part 355 control, Water supply. Authority: 42 U.S.C. 11002, 11004, and Air pollution control, Chemical 11048. accident prevention, Chemical 2. Appendices A and B in Part 355 are emergency preparedness, Chemicals, revised to read as follows:

APPENDIX A TO PART 355ÐTHE LIST OF EXTREMELY HAZARDOUS SUBSTANCES AND THEIR THRESHOLD PLANNING QUANTITIES [Alphabetical Order]

Reportable Threshold plan- CAS No. Chemical name Notes quantity * ning quantity (pounds) (pounds)

75±86±5 Acetone Cyanohydrin ...... 10 1,000 1752±30±3 Acetone Thiosemicarbazide ...... 1,000 1,000/10,000 107±02±8 Acrolein ...... 1 500 79±06±1 Acrylamide ...... l 5,000 1,000/10,000 107±13±1 Acrylonitrile ...... l 100 10,000 814±68±6 Acrylyl Chloride ...... h 100 100 111±69±3 Adiponitrile ...... l 1,000 1,000 116±06±3 Aldicarb ...... c 1 100/10,000 309±00±2 Aldrin ...... 1 500/10,000 107±18±6 Allyl Alcohol ...... 100 1,000 107±11±9 Allylamine ...... 500 500 20859±73±8 Aluminum Phosphide ...... b 100 500 54±62±6 Aminopterin ...... 500 500/10,000 78±53±5 Amiton ...... 500 500 3734±97±2 Amiton Oxalate ...... 100 100/10,000 7664±41±7 Ammonia ...... l 100 500 300±62±9 Amphetamine ...... 1,000 1,000 62±53±3 Aniline ...... l 5,000 1,000 88±05±1 Aniline, 2,4,6±Trimethyl- ...... 500 500 7783±70±2 Antimony Pentafluoride ...... 500 500 1397±94±0 Antimycin A ...... c 1,000 1,000/10,000 86±88±4 ANTU ...... 100 500/10,000 1303±28±2 Arsenic Pentoxide ...... 1 100/10,000 1327±53±3 Arsenous Oxide ...... h 1 100/10,000 7784±34±1 Arsenous Trichloride ...... 1 500 7784±42±1 Arsine ...... 100 100 2642±71±9 Azinphos-Ethyl ...... 100 100/10,000 86±50±0 Azinphos-Methyl ...... 1 10/10,000 98±87±3 Benzal Chloride ...... 5,000 500 98±16±8 Benzenamine, 3-(Trifluoromethyl)- ...... 500 500 100±14±1 Benzene, 1-(Chloromethyl)-4±Nitro- ...... 500 500/10,000 98±05±5 Benzenearsonic Acid ...... 10 10/10,000 3615±21±2 Benzimidazole, 4,5±Dichloro-2-(Trifluoromethyl)- ...... g 500 500/10,000 98±07±7 Benzotrichloride ...... 10 100 100±44±7 Benzyl Chloride ...... 100 500 140±29±4 Benzyl Cyanide ...... h 500 500 15271±41±7 Bicyclo[2.2.1]Heptane-2-Carbonitrile, 5-Chloro-6- 500 500/10,000 ((((Methylamino)Carbonyl)Oxy)Imino)±, (1s-(1-alpha,2-beta,4-alpha,5-alpha,6E))±. 534±07±6 Bis(Chloromethyl) Ketone ...... 10 10/10,000 4044±65±9 Bitoscanate ...... 500 500/10,000 10294±34±5 Boron Trichloride ...... 500 500 7637±07±2 Boron Trifluoride ...... 500 500 353±42±4 Boron Trifluoride Compound With Methyl Ether (1:1) ...... 1,000 1,000 28772±56±7 Bromadiolone ...... 100 100/10,000 7726±95±6 Bromine ...... l 500 500 1306±19±0 Cadmium Oxide ...... 100 100/10,000 2223±93±0 Cadmium Stearate ...... c 1,000 1,000/10,000 7778±44±1 Calcium Arsenate ...... 1 500/10,000 20480 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

APPENDIX A TO PART 355ÐTHE LIST OF EXTREMELY HAZARDOUS SUBSTANCES AND THEIR THRESHOLD PLANNING QUANTITIESÐContinued [Alphabetical Order]

Reportable Threshold plan- CAS No. Chemical name Notes quantity * ning quantity (pounds) (pounds)

8001±35±2 Camphechlor ...... 1 500/10,000 56±25±7 Cantharidin ...... 100 100/10,000 51±83±2 Carbachol Chloride ...... 500 500/10,000 26419±73±8 Carbamic Acid, Methyl-, O-(((2,4±Dimethyl-1, 3±Dithiolan-2-yl)Methylene)Amino)- ...... d 1 100/10,000 1563±66±2 Carbofuran ...... 10 10/10,000 75±15±0 Carbon Disulfide ...... l 100 10,000 786±19±6 Carbophenothion ...... 500 500 57±74±9 Chlordane ...... 1 1,000 470±90±6 Chlorfenvinfos ...... 500 500 7782±50±5 Chlorine ...... 10 100 24934±91±6 Chlormephos ...... 500 500 999±81±5 Chlormequat Chloride ...... h 100 100/10,000 79±11±8 Chloroacetic Acid ...... 100 100/10,000 107±07±3 Chloroethanol ...... 500 500 627±11±2 Chloroethyl Chloroformate ...... 1,000 1,000 67±66±3 Chloroform ...... l 10 10,000 542±88±1 Chloromethyl Ether ...... h 10 100 107±30±2 Chloromethyl Methyl Ether ...... c 10 100 3691±35±8 Chlorophacinone ...... 100 100/10,000 1982±47±4 Chloroxuron ...... 500 500/10,000 21923±23±9 Chlorthiophos ...... h 500 500 10025±73±7 Chromic Chloride ...... 1 1/10,000 62207±76±5 Cobalt, ((2,2'-(1,2±Ethanediylbis (Nitrilomethylidyne)) Bis(6±Fluorophenolato))(2-)- 100 100/10,000 N,N',O,O')-. 10210±68±1 Cobalt Carbonyl ...... h 10 10/10,000 64±86±8 Colchicine ...... h 10 10/10,000 56±72±4 Coumaphos ...... 10 100/10,000 5836±29±3 Coumatetralyl ...... 500 500/10,000 95±48±7 Cresol, o- ...... 100 1,000/10,000 535±89±7 Crimidine ...... 100 100/10,000 4170±30±3 Crotonaldehyde ...... 100 1,000 123±73±9 Crotonaldehyde, (E)- ...... 100 1,000 506±68±3 Cyanogen Bromide ...... 1,000 500/10,000 506±78±5 Cyanogen Iodide ...... 1,000 1,000/10,000 2636±26±2 Cyanophos ...... 1,000 1,000 675±14±9 Cyanuric Fluoride ...... 100 100 66±81±9 Cycloheximide ...... 100 100/10,000 108±91±8 Cyclohexylamine ...... l 10,000 10,000 17702±41±9 Decaborane(14) ...... 500 500/10,000 8065±48±3 Demeton ...... 500 500 919±86±8 Demeton-S-Methyl ...... 500 500 10311±84±9 Dialifor ...... 100 100/10,000 19287±45±7 Diborane ...... 100 100 111±44±4 Dichloroethyl ether ...... 10 10,000 149±74±6 Dichloromethylphenylsilane ...... 1,000 1,000 62±73±7 Dichlorvos ...... 10 1,000 141±66±2 Dicrotophos ...... 100 100 1464±53±5 Diepoxybutane ...... 10 500 814±49±3 Diethyl Chlorophosphate ...... h 500 500 71±63±6 Digitoxin ...... c 100 100/10,000 2238±07±5 Diglycidyl Ether ...... 1,000 1,000 20830±75±5 Digoxin ...... h 10 10/10,000 115±26±4 Dimefox ...... 500 500 60±51±5 Dimethoate ...... 10 500/10,000 2524±03±0 Dimethyl Phosphorochloridothioate ...... 500 500 77±78±1 Dimethyl sulfate ...... 100 500 75±78±5 Dimethyldichlorosilane ...... h 500 500 57±14±7 Dimethylhydrazine ...... 10 1,000 99±98±9 Dimethyl-p-Phenylenediamine ...... 10 10/10,000 644±64±4 Dimetilan ...... d 1 500/10,000 534±52±1 Dinitrocresol ...... 10 10/10,000 88±85±7 Dinoseb ...... 1,000 100/10,000 1420±07±1 Dinoterb ...... 500 500/10,000 78±34±2 Dioxathion ...... 500 500 82±66±6 Diphacinone ...... 10 10/10,000 152±16±9 Diphosphoramide, Octamethyl- ...... 100 100 298±04±4 Disulfoton ...... 1 500 514±73±8 Dithiazanine Iodide ...... 500 500/10,000 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20481

APPENDIX A TO PART 355ÐTHE LIST OF EXTREMELY HAZARDOUS SUBSTANCES AND THEIR THRESHOLD PLANNING QUANTITIESÐContinued [Alphabetical Order]

Reportable Threshold plan- CAS No. Chemical name Notes quantity * ning quantity (pounds) (pounds)

541±53±7 Dithiobiuret ...... 100 100/10,000 316±42±7 Emetine, Dihydrochloride ...... h 1 1/10,000 115±29±7 Endosulfan ...... 1 10/10,000 2778±04±3 Endothion ...... 500 500/10,000 72±20±8 Endrin ...... 1 500/10,000 106±89±8 Epichlorohydrin ...... l 100 1,000 2104±64±5 EPN ...... 100 100/10,000 50±14±6 Ergocalciferol ...... c 1,000 1,000/10,000 379±79±3 Ergotamine Tartrate ...... 500 500/10,000 1622±32±8 Ethanesulfonyl Chloride, 2-Chloro- ...... 500 500 10140±87±1 Ethanol, 1,2±Dichloro-, Acetate ...... 1,000 1,000 563±12±2 Ethion ...... 10 1,000 13194±48±4 Ethoprophos ...... 1,000 1,000 538±07±8 Ethylbis(2-Chloroethyl)Amine ...... h 500 500 371±62±0 Ethylene Fluorohydrin ...... c, h 10 10 75±21±8 Ethylene Oxide ...... l 10 1,000 107±15±3 Ethylenediamine ...... 5,000 10,000 151±56±4 Ethyleneimine ...... 1 500 542±90±5 Ethylthiocyanate ...... 10,000 10,000 22224±92±6 Fenamiphos ...... 10 10/10,000 115±90±2 Fensulfothion ...... h 500 500 4301±50±2 Fluenetil ...... 100 100/10,000 7782±41±4 Fluorine ...... k 10 500 640±19±7 Fluoroacetamide ...... j 100 100/10,000 144±49±0 Fluoroacetic Acid ...... 10 10/10,000 359±06±8 Fluoroacetyl Chloride ...... c 10 10 51±21±8 Fluorouracil ...... 500 500/10,000 944±22±9 Fonofos ...... 500 500 50±00±0 Formaldehyde ...... l 100 500 107±16±4 Formaldehyde Cyanohydrin ...... h 1,000 1,000 23422±53±9 Formetanate Hydrochloride ...... d, h 1 500/10,000 2540±82±1 Formothion ...... 100 100 17702±57±7 Formparanate ...... d 1 100/10,000 21548±32±3 Fosthietan ...... 500 500 3878±19±1 Fuberidazole ...... 100 100/10,000 110±00±9 Furan ...... 100 500 13450±90±3 Gallium Trichloride ...... 500 500/10,000 77±47±4 Hexachlorocyclopentadiene ...... h 10 100 4835±11±4 Hexamethylenediamine, N,N′-Dibutyl- ...... 500 500 302±01±2 Hydrazine ...... 1 1,000 74±90±8 Hydrocyanic Acid ...... 10 100 7647±01±0 Hydrogen Chloride (gas only) ...... l 5,000 500 7664±39±3 Hydrogen Fluoride ...... 100 100 7722±84±1 Hydrogen Peroxide (Conc > 52%) ...... l 1,000 1,000 7783±07±5 Hydrogen Selenide ...... 10 10 7783±06±4 Hydrogen Sulfide ...... l 100 500 123±31±9 Hydroquinone ...... l 100 500/10,000 13463±40±6 Iron, Pentacarbonyl- ...... 100 100 297±78±9 Isobenzan ...... 100 100/10,000 78±82±0 Isobutyronitrile ...... h 1,000 1,000 102±36±3 Isocyanic Acid, 3,4±Dichlorophenyl Ester ...... 500 500/10,000 465±73±6 Isodrin ...... 1 100/10,000 55±91±4 Isofluorphate ...... c 100 100 4098±71±9 Isophorone Diisocyanate ...... 100 100 108±23±6 Isopropyl Chloroformate ...... 1,000 1,000 119±38±0 Isopropylmethylpyrazolyl Dimethylcarbamate ...... d 1 500 78±97±7 Lactonitrile ...... 1,000 1,000 21609±90±5 Leptophos ...... 500 500/10,000 541±25±3 Lewisite ...... c, h 10 10 58±89±9 Lindane ...... 1 1,000/10,000 7580±67±8 Lithium Hydride ...... b 100 100 109±77±3 Malononitrile ...... 1,000 500/10,000 12108±13±3 Manganese, Tricarbonyl Methylcyclopentadienyl ...... h 100 100 51±75±2 Mechlorethamine ...... c 10 10 950±10±7 Mephosfolan ...... 500 500 1600±27±7 Mercuric Acetate ...... 500 500/10,000 7487±94±7 Mercuric Chloride ...... 500 500/10,000 21908±53±2 Mercuric Oxide ...... 500 500/10,000 20482 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

APPENDIX A TO PART 355ÐTHE LIST OF EXTREMELY HAZARDOUS SUBSTANCES AND THEIR THRESHOLD PLANNING QUANTITIESÐContinued [Alphabetical Order]

Reportable Threshold plan- CAS No. Chemical name Notes quantity * ning quantity (pounds) (pounds)

10476±95±6 Methacrolein Diacetate ...... 1,000 1,000 760±93±0 Methacrylic Anhydride ...... 500 500 126±98±7 Methacrylonitrile ...... h 1,000 500 920±46±7 Methacryloyl Chloride ...... 100 100 30674±80±7 Methacryloyloxyethyl Isocyanate ...... h 100 100 10265±92±6 Methamidophos ...... 100 100/10,000 558±25±8 Methanesulfonyl Fluoride ...... 1,000 1,000 950±37±8 Methidathion ...... 500 500/10,000 2032±65±7 Methiocarb ...... 10 500/10,000 16752±77±5 Methomyl ...... h 100 500/10,000 151±38±2 Methoxyethylmercuric Acetate ...... 500 500/10,000 80±63±7 Methyl 2±Chloroacrylate ...... 500 500 74±83±9 Methyl Bromide ...... l 1,000 1,000 79±22±1 Methyl Chloroformate ...... h 1,000 500 60±34±4 Methyl Hydrazine ...... 10 500 624±83±9 Methyl Isocyanate ...... 10 500 556±61±6 Methyl Isothiocyanate ...... b 500 500 74±93±1 Methyl Mercaptan ...... l 100 500 3735±23±7 Methyl Phenkapton ...... 500 500 676±97±1 Methyl Phosphonic Dichloride ...... b 100 100 556±64±9 Methyl Thiocyanate ...... 10,000 10,000 78±94±4 Methyl Vinyl Ketone ...... 10 10 502±39±6 Methylmercuric Dicyanamide ...... 500 500/10,000 75±79±6 Methyltrichlorosilane ...... h 500 500 1129±41±5 Metolcarb ...... d 1 100/10,000 7786±34±7 Mevinphos ...... 10 500 315±18±4 Mexacarbate ...... 1,000 500/10,000 50±07±7 Mitomycin C ...... 10 500/10,000 6923±22±4 Monocrotophos ...... 10 10/10,000 2763±96±4 Muscimol ...... 1,000 500/10,000 505±60±2 Mustard Gas ...... h 500 500 13463±39±3 Nickel Carbonyl ...... 10 1 54±11±5 Nicotine ...... c 100 100 65±30±5 Nicotine Sulfate ...... 100 100/10,000 7697±37±2 Nitric Acid ...... 1,000 1,000 10102±43±9 Nitric Oxide ...... c 10 100 98±95±3 Nitrobenzene ...... l 1,000 10,000 1122±60±7 Nitrocyclohexane ...... 500 500 10102±44±0 Nitrogen Dioxide ...... 10 100 62±75±9 Nitrosodimethylamine ...... h 10 1,000 991±42±4 Norbormide ...... 100 100/10,000 0 Organorhodium Complex (PMN±82±147) ...... 10 10/10,000 630±60±4 Ouabain ...... c 100 100/10,000 23135±22±0 Oxamyl ...... d 1 100/10,000 78±71±7 Oxetane, 3,3±Bis(Chloromethyl)- ...... 500 500 2497±07±6 Oxydisulfoton ...... h 500 500 10028±15±6 Ozone ...... 100 100 1910±42±5 Paraquat Dichloride ...... 10 10/10,000 2074±50±2 Paraquat Methosulfate ...... 10 10/10,000 56±38±2 Parathion ...... c 10 100 298±00±0 Parathion-Methyl ...... c 100 100/10,000 12002±03±8 Paris Green ...... 1 500/10,000 19624±22±7 Pentaborane ...... 500 500 2570±26±5 Pentadecylamine ...... 100 100/10,000 79±21±0 Peracetic Acid ...... 500 500 594±42±3 Perchloromethylmercaptan ...... 100 500 108±95±2 Phenol ...... 1,000 500/10,000 4418±66±0 Phenol, 2,2'-Thiobis(4±Chloro-6±Methyl)- ...... 100 100/10,000 64±00±6 Phenol, 3-(1±Methylethyl)-, Methylcarbamate ...... d 1 500/10,000 58±36±6 Phenoxarsine, 10,10'-Oxydi- ...... 500 500/10,000 696±28±6 Phenyl Dichloroarsine ...... h 1 500 59±88±1 Phenylhydrazine Hydrochloride ...... 1,000 1,000/10,000 62±38±4 Phenylmercury Acetate ...... 100 500/10,000 2097±19±0 Phenylsilatrane ...... h 100 100/10,000 103±85±5 Phenylthiourea ...... 100 100/10,000 298±02±2 Phorate ...... 10 10 4104±14±7 Phosacetim ...... 100 100/10,000 947±02±4 Phosfolan ...... 100 100/10,000 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20483

APPENDIX A TO PART 355ÐTHE LIST OF EXTREMELY HAZARDOUS SUBSTANCES AND THEIR THRESHOLD PLANNING QUANTITIESÐContinued [Alphabetical Order]

Reportable Threshold plan- CAS No. Chemical name Notes quantity * ning quantity (pounds) (pounds)

75±44±5 Phosgene ...... l 10 10 732±11±6 Phosmet ...... 10 10/10,000 13171±21±6 Phosphamidon ...... 100 100 7803±51±2 Phosphine ...... 100 500 2703±13±1 Phosphonothioic Acid, Methyl-, O-Ethyl O-(4- (Methylthio) Phenyl) Ester ...... 500 500 50782±69±9 Phosphonothioic Acid, Methyl-, S-(2-(Bis(1±Methylethyl)Amino)Ethyl) O-Ethyl Ester ... 100 100 2665±30±7 Phosphonothioic Acid, Methyl-, O-(4±Nitrophenyl) O-Phenyl Ester ...... 500 500 3254±63±5 Phosphoric Acid, Dimethyl 4-(Methylthio)Phenyl Ester ...... 500 500 2587±90±8 Phosphorothioic Acid, O,O-Dimethyl-S-(2±Methylthio) Ethyl Ester ...... c, g 500 500 7723±14±0 Phosphorus ...... b, h 1 100 10025±87±3 Phosphorus Oxychloride ...... 1,000 500 10026±13±8 Phosphorus Pentachloride ...... b 500 500 7719±12±2 Phosphorus Trichloride ...... 1,000 1,000 57±47±6 Physostigmine ...... d 1 100/10,000 57±64±7 Physostigmine, Salicylate (1:1) ...... d 1 100/10,000 124±87±8 Picrotoxin ...... 500 500/10,000 110±89±4 Piperidine ...... 1,000 1,000 23505±41±1 Pirimifos-Ethyl ...... 1,000 1,000 10124±50±2 Potassium Arsenite ...... 1 500/10,000 151±50±8 Potassium Cyanide ...... b 10 100 506±61±6 Potassium Silver Cyanide ...... b 1 500 2631±37±0 Promecarb ...... d, h 1 500/10,000 106±96±7 Propargyl Bromide ...... 10 10 57±57±8 Propiolactone, Beta- ...... 10 500 107±12±0 Propionitrile ...... 10 500 542±76±7 Propionitrile, 3±Chloro- ...... 1,000 1,000 70±69±9 Propiophenone, 4±Amino- ...... g 100 100/10,000 109±61±5 Propyl Chloroformate ...... 500 500 75±56±9 Propylene Oxide ...... l 100 10,000 75±55±8 Propyleneimine ...... 1 10,000 2275±18±5 Prothoate ...... 100 100/10,000 129±00±0 Pyrene ...... c 5,000 1,000/10,000 140±76±1 Pyridine, 2±Methyl-5±Vinyl- ...... 500 500 504±24±5 Pyridine, 4±Amino- ...... h 1,000 500/10,000 1124±33±0 Pyridine, 4±Nitro-,l-Oxide ...... 500 500/10,000 53558±25±1 Pyriminil ...... h 100 100/10,000 14167±18±1 Salcomine ...... 500 500/10,000 107±44±8 Sarin ...... h 10 10 7783±00±8 Selenious Acid ...... 10 1,000/10,000 7791±23±3 Selenium Oxychloride ...... 500 500 563±41±7 Semicarbazide Hydrochloride ...... 1,000 1,000/10,000 3037±72±7 Silane, (4±Aminobutyl)Diethoxymethyl- ...... 1,000 1,000 7631±89±2 Sodium Arsenate ...... 1 1,000/10,000 7784±46±5 Sodium Arsenite ...... 1 500/10,000 26628±22±8 Sodium Azide (Na(N3)) ...... b 1,000 500 124±65±2 Sodium Cacodylate ...... 100 100/10,000 143±33±9 Sodium Cyanide (Na(CN)) ...... b 10 100 62±74±8 Sodium Fluoroacetate ...... 10 10/10,000 13410±01±0 Sodium Selenate ...... 100 100/10,000 10102±18±8 Sodium Selenite ...... h 100 100/10,000 10102±20±2 Sodium Tellurite ...... 500 500/10,000 900±95±8 Stannane, Acetoxytriphenyl- ...... g 500 500/10,000 57±24±9 Strychnine ...... c 10 100/10,000 60±41±3 Strychnine Sulfate ...... 10 100/10,000 3689±24±5 Sulfotep ...... 100 500 3569±57±1 Sulfoxide, 3±Chloropropyl Octyl ...... 500 500 7446±09±5 Sulfur Dioxide ...... 1 500 500 7783±60±0 Sulfur Tetrafluoride ...... 100 100 7446±11±9 Sulfur Trioxide ...... b 100 100 7664±93±9 Sulfuric Acid ...... 1,000 1,000 77±81±6 Tabun ...... c, h 10 10 7783±80±4 Tellurium Hexafluoride ...... k 100 100 107±49±3 TEPP ...... 10 100 13071±79±9 Terbufos ...... h 100 100 78±00±2 Tetraethyllead ...... c 10 100 597±64±8 Tetraethyltin ...... c 100 100 75±74±1 Tetramethyllead ...... c, 1 100 100 509±14±8 Tetranitromethane ...... 10 500 20484 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

APPENDIX A TO PART 355ÐTHE LIST OF EXTREMELY HAZARDOUS SUBSTANCES AND THEIR THRESHOLD PLANNING QUANTITIESÐContinued [Alphabetical Order]

Reportable Threshold plan- CAS No. Chemical name Notes quantity * ning quantity (pounds) (pounds)

10031±59±1 Thallium Sulfate ...... h 100 100/10,000 6533±73±9 Thallous Carbonate ...... c, h 100 100/10,000 7791±12±0 Thallous Chloride ...... c, h 100 100/10,000 2757±18±8 Thallous Malonate ...... c, h 100 100/10,000 7446±18±6 Thallous Sulfate ...... 100 100/10,000 2231±57±4 Thiocarbazide ...... 1,000 1,000/10,000 39196±18±4 Thiofanox ...... 100 100/10,000 297±97±2 Thionazin ...... 100 500 108±98±5 Thiophenol ...... 100 500 79±19±6 Thiosemicarbazide ...... 100 100/10,000 5344±82±1 Thiourea, (2±Chlorophenyl)- ...... 100 100/10,000 614±78±8 Thiourea, (2±Methylphenyl)- ...... 500 500/10,000 7550±45±0 Titanium Tetrachloride ...... 1,000 100 584±84±9 Toluene 2,4±Diisocyanate ...... 100 500 91±08±7 Toluene 2,6±Diisocyanate ...... 100 100 110±57±6 Trans-1,4±Dichlorobutene ...... 500 500 1031±47±6 Triamiphos ...... 500 500/10,000 24017±47±8 Triazofos ...... 500 500 76±02±8 Trichloroacetyl Chloride ...... 500 500 115±21±9 Trichloroethylsilane ...... h 500 500 327±98±0 Trichloronate ...... k 500 500 98±13±5 Trichlorophenylsilane ...... h 500 500 1558±25±4 Trichloro(Chloromethyl)Silane ...... 100 100 27137±85±5 Trichloro(Dichlorophenyl) Silane ...... 500 500 998±30±1 Triethoxysilane ...... 500 500 75±77±4 Trimethylchlorosilane ...... 1,000 1,000 824±11±3 Trimethylolpropane Phosphite ...... h 100 100/10,000 1066±45±1 Trimethyltin Chloride ...... 500 500/10,000 639±58±7 Triphenyltin Chloride ...... 500 500/10,000 555±77±1 Tris(2±Chloroethyl)Amine ...... h 100 100 2001±95±8 Valinomycin ...... c 1,000 1,000/10,000 1314±62±1 Vanadium Pentoxide ...... 1,000 100/10,000 108±05±4 Vinyl Acetate Monomer ...... 1 5,000 1,000 81±81±2 Warfarin ...... 100 500/10,000 129±06±6 Warfarin Sodium ...... h 100 100/10,000 28347±13±9 Xylylene Dichloride ...... 100 100/10,000 58270±08±9 Zinc, Dichloro(4,4± Dimethyl-5((((Methylamino)Carbonyl) Oxy)Imino)Pentanenitrile)-, 100 100/10,000 (T±4)-. 1314±84±7 Zinc Phosphide ...... b 100 500 * Only the statutory or final RQ is shown. For more information, see 40 CFR Table 302.4. NOTES: a This chemical does not meet acute toxicity criteria. Its TPQ is set at 10,000 pounds. b This material is a reactive solid. The TPQ does not default to 10,000 pounds for non-powder, non-molten, nonsolution form. c The calculated TPQ changed after technical review as described in the technical support document. d Indicates that the RQ is subject to change when the assessment of potential carcinogenicity and/or other toxicity is completed. e Statutory reportable quantity for purposes of notification under SARA sect 304(a)(2). f [Reserved] g New chemicals added that were not part of the original list of 402 substances. h Revised TPQ based on new or re-evaluated toxicity data. j TPQ is revised to its calculated value and does not change due to technical review as in proposed rule. k The TPQ was revised after proposal due to calculation error. l Chemicals on the original list that do not meet toxicity criteria but because of their high production volume and recognized toxicity are consid- ered chemicals of concern (``Other chemicals'').

APPENDIX B TO PART 355ÐTHE LIST OF EXTREMELY HAZARDOUS SUBSTANCES AND THEIR THRESHOLD PLANNING QUANTITIES [CAS Number Order]

Reportable Threshold plan- CAS No. Chemical name Notes quantity * ning quantity (pounds) (pounds)

0 Organorhodium Complex (PMN±82±147) ...... 10 10/10,000 50±00±0 Formaldehyde ...... l 100 500 50±07±7 Mitomycin C ...... 10 500/10,000 50±14±6 Ergocalciferol ...... c 1,000 1,000/10,000 51±21±8 Fluorouracil ...... 500 500/10,000 51±75±2 Mechlorethaminec ...... c 10 10 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20485

APPENDIX B TO PART 355ÐTHE LIST OF EXTREMELY HAZARDOUS SUBSTANCES AND THEIR THRESHOLD PLANNING QUANTITIESÐContinued [CAS Number Order]

Reportable Threshold plan- CAS No. Chemical name Notes quantity * ning quantity (pounds) (pounds)

51±83±2 Carbachol Chloride ...... 500 500/10,000 54±11±5 Nicotine ...... c 100 100 54±62±6 Aminopterin ...... 500 500/10,000 55±91±4 Isofluorphate ...... c 100 100 56±25±7 Cantharidin ...... 100 100/10,000 56±38±2 Parathion ...... c 10 100 56±72±4 Coumaphos ...... 10 100/10,000 57±14±7 Dimethylhydrazine ...... 10 1,000 57±24±9 Strychnine ...... c 10 100/10,000 57±47±6 Physostigmine ...... d 1 100/10,000 57±57±8 Propiolactone, Beta- ...... 10 500 57±64±7 Physostigmine, Salicylate (1:1) ...... d 1 100/10,000 57±74±9 Chlordane ...... 1 1,000 58±36±6 Phenoxarsine, 10,10'-Oxydi- ...... 500 500/10,000 58±89±9 Lindane ...... 1 1,000/10,000 59±88±1 Phenylhydrazine Hydrochloride ...... 1,000 1,000/10,000 60±34±4 Methyl Hydrazine ...... 10 500 60±41±3 Strychnine sulfate ...... 10 100/10,000 60±51±5 Dimethoate ...... 10 500/10,000 62±38±4 Phenylmercury Acetate ...... 100 500/10,000 62±53±3 Aniline ...... l 5,000 1,000 62±73±7 Dichlorvos ...... 10 1,000 62±74±8 Sodium Fluoroacetate ...... 10 10/10,000 62±75±9 Nitrosodimethylamine ...... h 10 1,000 64±00±6 Phenol, 3-(1-Methylethyl)-, Methylcarbamate ...... d 1 500/10,000 64±86±8 Colchicine ...... h 10 10/10,000 65±30±5 Nicotine sulfate ...... 100 100/10,000 66±81±9 Cycloheximide ...... 100 100/10,000 67±66±3 Chloroform ...... l 10 10,000 70±69±9 Propiophenone, 4-Amino- ...... g 100 100/10,000 71±63±6 Digitoxin ...... c 100 100/10,000 72±20±8 Endrin ...... 1 500/10,000 74±83±9 Methyl Bromide ...... l 1,000 1,000 74±90±8 Hydrocyanic Acid ...... 10 100 74±93±1 Methyl Mercaptan ...... l 100 500 75±15±0 Carbon Disulfide ...... l 100 10,000 75±21±8 Ethylene Oxide ...... l 10 1,000 75±44±5 Phosgene ...... l 10 10 75±55±8 Propyleneimine ...... 1 10,000 75±56±9 Propylene Oxide ...... l 100 10,000 75±74±1 Tetramethyllead ...... c, l 100 100 75±77±4 Trimethylchlorosilane ...... 1,000 1,000 75±78±5 Dimethyldichlorosilane ...... h 500 500 75±79±6 Methyltrichlorosilane ...... h 500 500 75±86±5 Acetone Cyanohydrin ...... 10 1,000 76±02±8 Trichloroacetyl Chloride ...... 500 500 77±47±4 Hexachlorocyclopentadiene ...... h 10 100 77±78±1 Dimethyl Sulfate ...... 100 500 77±81±6 Tabun ...... c, h 10 10 78±00±2 Tetraethyllead ...... c 10 100 78±34±2 Dioxathion ...... 500 500 78±53±5 Amiton ...... 500 500 78±71±7 Oxetane, 3,3-Bis(Chloromethyl)- ...... 500 500 78±82±0 Isobutyronitrile ...... h 1,000 1,000 78±94±4 Methyl Vinyl Ketone ...... 10 10 78±97±7 Lactonitrile ...... 1,000 1,000 79±06±1 Acrylamide ...... l 5,000 1,000/10,000 79±11±8 Chloroacetic Acid ...... 100 100/10,000 79±19±6 Thiosemicarbazide ...... 100 100/10,000 79±21±0 Peracetic Acid ...... 500 500 79±22±1 Methyl Chloroformate ...... h 1,000 500 80±63±7 Methyl 2-Chloroacrylate ...... 500 500 81±81±2 Warfarin ...... 100 500/10,000 82±66±6 Diphacinone ...... 10 10/10,000 86±50±0 Azinphos-Methyl ...... 1 10/10,000 86±88±4 ANTU ...... 100 500/10,000 88±05±1 Aniline, 2,4,6-Trimethyl- ...... 500 500 88±85±7 Dinoseb ...... 1,000 100/10,000 20486 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

APPENDIX B TO PART 355ÐTHE LIST OF EXTREMELY HAZARDOUS SUBSTANCES AND THEIR THRESHOLD PLANNING QUANTITIESÐContinued [CAS Number Order]

Reportable Threshold plan- CAS No. Chemical name Notes quantity * ning quantity (pounds) (pounds)

91±08±7 Toluene 2,6-Diisocyanate ...... 100 100 95±48±7 Cresol, o- ...... 100 1,000/10,000 98±05±5 Benzenearsonic Acid ...... 10 10/10,000 98±07±7 Benzotrichloride ...... 10 100 98±13±5 Trichlorophenylsilane ...... h 500 500 98±16±8 Benzenamine, 3-(Trifluoromethyl)- ...... 500 500 98±87±3 Benzal Chloride ...... 5,000 500 98±95±3 Nitrobenzene ...... l 1,000 10,000 99±98±9 Dimethyl-p-Phenylenediamine ...... 10 10/10,000 100±14±1 Benzene, 1-(Chloromethyl)-4-Nitro- ...... 500 500/10,000 100±44±7 Benzyl Chloride ...... 100 500 102±36±3 Isocyanic Acid, 3,4-Dichlorophenyl Ester ...... 500 500/10,000 103±85±5 Phenylthiourea ...... 100 100/10,000 106±89±8 Epichlorohydrin ...... l 100 1,000 106±96±7 Propargyl Bromide ...... 10 10 107±02±8 Acrolein ...... 1 500 107±07±3 Chloroethanol ...... 500 500 107±11±9 Allylamine ...... 500 500 107±12±0 Propionitrile ...... 10 500 107±13±1 Acrylonitrile ...... l 100 10,000 107±15±3 Ethylenediamine ...... 5,000 10,000 107±16±4 Formaldehyde Cyanohydrin ...... h 1,000 1,000 107±18±6 Allyl Alcohol ...... 100 1,000 107±30±2 Chloromethyl Methyl Ether ...... c 10 100 107±44±8 Sarin ...... h 10 10 107±49±3 TEPP ...... 10 100 108±05±4 Vinyl Acetate Monomer ...... l 5,000 1,000 108±23±6 Isopropyl Chloroformate ...... 1,000 1,000 108±91±8 Cyclohexylamine ...... l 10,000 10,000 108±95±2 Phenol ...... 1,000 500/10,000 108±98±5 Thiophenol ...... 100 500 109±61±5 Propyl Chloroformate ...... 500 500 109±77±3 Malononitrile ...... 1,000 500/10,000 110±00±9 Furan ...... 100 500 110±57±6 Trans-1,4-Dichlorobutene ...... 500 500 110±89±4 Piperidine ...... 1,000 1,000 111±44±4 Dichloroethyl Ether ...... 10 10,000 111±69±3 Adiponitrile ...... l 1,000 1,000 115±21±9 Trichloroethylsilane ...... h 500 500 115±26±4 Dimefox ...... 500 500 115±29±7 Endosulfan ...... 1 10/10,000 115±90±2 Fensulfothion ...... h 500 500 116±06±3 Aldicarb ...... c 1 100/10,000 119±38±0 Isopropylmethylpyrazolyl Dimethylcarbamate ...... d 1 500 123±31±9 Hydroquinone ...... l 100 500/10,000 123±73±9 Crotonaldehyde, (E)- ...... 100 1,000 124±65±2 Sodium Cacodylate ...... 100 100/10,000 124±87±8 Picrotoxin ...... 500 500/10,000 126±98±7 Methacrylonitrile ...... h 1,000 500 129±00±0 Pyrene ...... c 5,000 1,000/10,000 129±06±6 Warfarin Sodium ...... h 100 100/10,000 140±29±4 Benzyl Cyanide ...... h 500 500 140±76±1 Pyridine, 2-Methyl-5-Vinyl- ...... 500 500 141±66±2 Dicrotophos ...... 100 100 143±33±9 Sodium Cyanide (Na(CN)) ...... b 10 100 144±49±0 Fluoroacetic Acid ...... 10 10/10,000 149±74±6 Dichloromethylphenylsilane ...... 1,000 1,000 151±38±2 Methoxyethylmercuric Acetate ...... 500 500/10,000 151±50±8 Potassium Cyanide ...... b 10 100 151±56±4 Ethyleneimine ...... 1 500 152±16±9 Diphosphoramide, Octamethyl- ...... 100 100 297±78±9 Isobenzan ...... 100 100/10,000 297±97±2 Thionazin ...... 100 500 298±00±0 Parathion-Methyl ...... c 100 100/10,000 298±02±2 Phorate ...... 10 10 298±04±4 Disulfoton ...... 1 500 300±62±9 Amphetamine ...... 1,000 1,000 302±01±2 Hydrazine ...... 1 1,000 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20487

APPENDIX B TO PART 355ÐTHE LIST OF EXTREMELY HAZARDOUS SUBSTANCES AND THEIR THRESHOLD PLANNING QUANTITIESÐContinued [CAS Number Order]

Reportable Threshold plan- CAS No. Chemical name Notes quantity * ning quantity (pounds) (pounds)

309±00±2 Aldrin ...... 1 500/10,000 315±18±4 Mexacarbate ...... 1,000 500/10,000 316±42±7 Emetine, Dihydrochloride ...... h 1 1/10,000 327±98±0 Trichloronate ...... k 500 500 353±42±4 Boron Trifluoride Compound With Methyl Ether (1:1) ...... 1,000 1,000 359±06±8 Fluoroacetyl Chloride ...... c 10 10 371±62±0 Ethylene Fluorohydrin ...... c, h 10 10 379±79±3 Ergotamine Tartrate ...... 500 500/10,000 465±73±6 Isodrin ...... 1 100/10,000 470±90±6 Chlorfenvinfos ...... 500 500 502±39±6 Methylmercuric Dicyanamide ...... 500 500/10,000 504±24±5 Pyridine, 4-Amino- ...... h 1,000 500/10,000 505±60±2 Mustard Gas ...... h 500 500 506±61±6 Potassium Silver Cyanide ...... b 1 500 506±68±3 Cyanogen Bromide ...... 1,000 500/10,000 506±78±5 Cyanogen Iodide ...... 1,000 1,000/10,000 509±14±8 Tetranitromethane ...... 10 500 514±73±8 Dithiazanine Iodide ...... 500 500/10,000 534±07±6 Bis(Chloromethyl) Ketone ...... 10 10/10,000 534±52±1 Dinitrocresol ...... 10 10/10,000 535±89±7 Crimidine ...... 100 100/10,000 538±07±8 Ethylbis(2-Chloroethyl)Amine ...... h 500 500 541±25±3 Lewisite ...... c, h 10 10 541±53±7 Dithiobiuret ...... 100 100/10,000 542±76±7 Propionitrile, 3-Chloro- ...... 1,000 1,000 542±88±1 Chloromethyl Ether ...... h 10 100 542±90±5 Ethylthiocyanate ...... 10,000 10,000 555±77±1 Tris(2-Chloroethyl)Amine ...... h 100 100 556±61±6 Methyl Isothiocyanate ...... b 500 500 556±64±9 Methyl Thiocyanate ...... 10,000 10,000 558±25±8 Methanesulfonyl Fluoride ...... 1,000 1,000 563±12±2 Ethion ...... 10 1,000 563±41±7 Semicarbazide Hydrochloride ...... 1,000 1,000/10,000 584±84±9 Toluene 2,4-Diisocyanate ...... 100 500 594±42±3 Perchloromethylmercaptan ...... 100 500 597±64±8 Tetraethyltin ...... c 100 100 614±78±8 Thiourea, (2-Methylphenyl)- ...... 500 500/10,000 624±83±9 Methyl Isocyanate ...... 10 500 627±11±2 Chloroethyl Chloroformate ...... 1,000 1,000 630±60±4 Ouabain ...... c 100 100/10,000 639±58±7 Triphenyltin Chloride ...... 500 500/10,000 640±19±7 Fluoroacetamide ...... j 100 100/10,000 644±64±4 Dimetilan ...... d 1 500/10,000 675±14±9 Cyanuric Fluoride ...... 100 100 676±97±1 Methyl Phosphonic Dichloride ...... b 100 100 696±28±6 Phenyl Dichloroarsine ...... h 1 500 732±11±6 Phosmet ...... 10 10/10,000 760±93±0 Methacrylic Anhydride ...... 500 500 786±19±6 Carbophenothion ...... 500 500 814±49±3 Diethyl Chlorophosphate ...... h 500 500 814±68±6 Acrylyl Chloride ...... h 100 100 824±11±3 Trimethylolpropane Phosphite ...... h 100 100/10,000 900±95±8 Stannane, Acetoxytriphenyl- ...... g 500 500/10,000 919±86±8 Demeton-S-Methyl ...... 500 500 920±46±7 Methacryloyl Chloride ...... 100 100 944±22±9 Fonofos ...... 500 500 947±02±4 Phosfolan ...... 100 100/10,000 950±10±7 Mephosfolan ...... 500 500 950±37±8 Methidathion ...... 500 500/10,000 991±42±4 Norbormide ...... 100 100/10,000 998±30±1 Triethoxysilane ...... 500 500 999±81±5 Chlormequat Chloride ...... h 100 100/10,000 1031±47±6 Triamiphos ...... 500 500/10,000 1066±45±1 Trimethyltin Chloride ...... 500 500/10,000 1122±60±7 Nitrocyclohexane ...... 500 500 1124±33±0 Pyridine, 4-Nitro-,1-Oxide ...... 500 500/10,000 1129±41±5 Metolcarb ...... d 1 100/10,000 1303±28±2 Arsenic Pentoxide ...... 1 100/10,000 20488 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

APPENDIX B TO PART 355ÐTHE LIST OF EXTREMELY HAZARDOUS SUBSTANCES AND THEIR THRESHOLD PLANNING QUANTITIESÐContinued [CAS Number Order]

Reportable Threshold plan- CAS No. Chemical name Notes quantity * ning quantity (pounds) (pounds)

1306±19±0 Cadmium Oxide ...... 100 100/10,000 1314±62±1 Vanadium Pentoxide ...... 1,000 100/10,000 1314±84±7 Zinc Phosphide ...... b 100 500 1327±53±3 Arsenous Oxide ...... h 1 100/10,000 1397±94±0 Antimycin A ...... c 1,000 1,000/10,000 1420±07±1 Dinoterb ...... 500 500/10,000 1464±53±5 Diepoxybutane ...... 10 500 1558±25±4 Trichloro(Chloromethyl)Silane ...... 100 100 1563±66±2 Carbofuran ...... 10 10/10,000 1600±27±7 Mercuric Acetate ...... 500 500/10,000 1622±32±8 Ethanesulfonyl Chloride, 2-Chloro- ...... 500 500 1752±30±3 Acetone Thiosemicarbazide ...... 1,000 1,000/10,000 1910±42±5 Paraquat Dichloride ...... 10 10/10,000 1982±47±4 Chloroxuron ...... 500 500/10,000 2001±95±8 Valinomycin ...... c 1,000 1,000/10,000 2032±65±7 Methiocarb ...... 10 500/10,000 2074±50±2 Paraquat Methosulfate ...... 10 10/10,000 2097±19±0 Phenylsilatrane ...... h 100 100/10,000 2104±64±5 EPN ...... 100 100/10,000 2223±93±0 Cadmium Stearate ...... c 1,000 1,000/10,000 2231±57±4 Thiocarbazide ...... 1,000 1,000/10,000 2238±07±5 Diglycidyl Ether ...... 1,000 1,000 2275±18±5 Prothoate ...... 100 100/10,000 2497±07±6 Oxydisulfoton ...... h 500 500 2524±03±0 Dimethyl Phosphorochloridothioate ...... 500 500 2540±82±1 Formothion ...... 100 100 2570±26±5 Pentadecylamine ...... 100 100/10,000 2587±90±8 Phosphorothioic Acid, O,O-Dimethyl-S-(2-Methylthio) Ethyl Ester ...... c, g 500 500 2631±37±0 Promecarb ...... d, h 1 500/10,000 2636±26±2 Cyanophos ...... 1,000 1,000 2642±71±9 Azinphos-Ethyl ...... 100 100/10,000 2665±30±7 Phosphonothioic Acid, Methyl-, O-(4-Nitrophenyl) O-Phenyl Ester ...... 500 500 2703±13±1 Phosphonothioic Acid, Methyl-, O-Ethyl O-(4-(Methylthio)Phenyl) Ester ...... 500 500 2757±18±8 Thallous Malonate ...... c, h 100 100/10,000 2763±96±4 Muscimol ...... 1,000 500/10,000 2778±04±3 Endothion ...... 500 500/10,000 3037±72±7 Silane, (4-Aminobutyl)Diethoxymethyl- ...... 1,000 1,000 3254±63±5 Phosphoric Acid, Dimethyl 4-(Methylthio)Phenyl Ester ...... 500 500 3569±57±1 Sulfoxide, 3-Chloropropyl Octyl ...... 500 500 3615±21±2 Benzimidazole, 4,5-Dichloro-2-(Trifluoromethyl)- ...... g 500 500/10,000 3689±24±5 Sulfotep ...... 100 500 3691±35±8 Chlorophacinone ...... 100 100/10,000 3734±97±2 Amiton Oxalate ...... 100 100/10,000 3735±23±7 Methyl Phenkapton ...... 500 500 3878±19±1 Fuberidazole ...... 100 100/10,000 4044±65±9 Bitoscanate ...... 500 500/10,000 4098±71±9 Isophorone Diisocyanate ...... 100 100 4104±14±7 Phosacetim ...... 100 100/10,000 4170±30±3 Crotonaldehyde ...... 100 1,000 4301±50±2 Fluenetil ...... 100 100/10,000 4418±66±0 Phenol, 2,2'-Thiobis(4-Chloro-6-Methyl)- ...... 100 100/10,000 4835±11±4 Hexamethylenediamine, N,N'-Dibutyl- ...... 500 500 5344±82±1 Thiourea, (2-Chlorophenyl)- ...... 100 100/10,000 5836±29±3 Coumatetralyl ...... 500 500/10,000 6533±73±9 Thallous Carbonate ...... c, h 100 100/10,000 6923±22±4 Monocrotophos ...... 10 10/10,000 7446±09±5 Sulfur Dioxide ...... l 500 500 7446±11±9 Sulfur Trioxide ...... b 100 100 7446±18±6 Thallous Sulfate ...... 100 100/10,000 7487±94±7 Mercuric Chloride ...... 500 500/10,000 7550±45±0 Titanium Tetrachloride ...... 1,000 100 7580±67±8 Lithium Hydride ...... b 100 100 7631±89±2 Sodium Arsenate ...... 1 1,000/10,000 7637±07±2 Boron Trifluoride ...... 500 500 7647±01±0 Hydrogen Chloride (gas only) ...... l 5,000 500 7664±39±3 Hydrogen Fluoride ...... 100 100 7664±41±7 Ammonia ...... l 100 500 7664±93±9 Sulfuric Acid ...... 1,000 1,000 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20489

APPENDIX B TO PART 355ÐTHE LIST OF EXTREMELY HAZARDOUS SUBSTANCES AND THEIR THRESHOLD PLANNING QUANTITIESÐContinued [CAS Number Order]

Reportable Threshold plan- CAS No. Chemical name Notes quantity * ning quantity (pounds) (pounds)

7697±37±2 Nitric Acid ...... 1,000 1,000 7719±12±2 Phosphorus Trichloride ...... 1,000 1,000 7722±84±1 Hydrogen Peroxide (Conc > 52%) ...... l 1,000 1,000 7723±14±0 Phosphorus ...... b, h 1 100 7726±95±6 Bromine ...... l 500 500 7778±44±1 Calcium Arsenate ...... 1 500/10,000 7782±41±4 Fluorine ...... k 10 500 7782±50±5 Chlorine ...... 10 100 7783±00±8 Selenious Acid ...... 10 1,000/10,000 7783±06±4 Hydrogen Sulfide ...... l 100 500 7783±07±5 Hydrogen Selenide ...... 10 10 7783±60±0 Sulfur Tetrafluoride ...... 100 100 7783±70±2 Antimony Pentafluoride ...... 500 500 7783±80±4 Tellurium Hexafluoride ...... k 100 100 7784±34±1 Arsenous Trichloride ...... 1 500 7784±42±1 Arsine ...... 100 100 7784±46±5 Sodium Arsenite ...... 1 500/10,000 7786±34±7 Mevinphos ...... 10 500 7791±12±0 Thallous Chloride ...... c, h 100 100/10,000 7791±23±3 Selenium Oxychloride ...... 500 500 7803±51±2 Phosphine ...... 100 500 8001±35±2 Camphechlor ...... 1 500/10,000 8065±48±3 Demeton ...... 500 500 10025±73±7 Chromic Chloride ...... 1 1/10,000 10025±87±3 Phosphorus Oxychloride ...... 1,000 500 10026±13±8 Phosphorus Pentachloride ...... b 500 500 10028±15±6 Ozone ...... 100 100 10031±59±1 Thallium Sulfate ...... h 100 100/10,000 10102±18±8 Sodium Selenite ...... h 100 100/10,000 10102±20±2 Sodium Tellurite ...... 500 500/10,000 10102±43±9 Nitric Oxide ...... c 10 100 10102±44±0 Nitrogen Dioxide ...... 10 100 10124±50±2 Potassium Arsenite ...... 1 500/10,000 10140±87±1 Ethanol, 1,2-Dichloro-, Acetate ...... 1,000 1,000 10210±68±1 Cobalt Carbonyl ...... h 10 10/10,000 10265±92±6 Methamidophos ...... 100 100/10,000 10294±34±5 Boron Trichloride ...... 500 500 10311±84±9 Dialifor ...... 100 100/10,000 10476±95±6 Methacrolein Diacetate ...... 1,000 1,000 12002±03±8 Paris Green ...... 1 500/10,000 12108±13±3 Manganese, Tricarbonyl Methylcyclopentadienyl ...... h 100 100 13071±79±9 Terbufosh ...... h 100 100 13171±21±6 Phosphamidon ...... 100 100 13194±48±4 Ethoprophos ...... 1,000 1,000 13410±01±0 Sodium Selenate ...... 100 100/10,000 13450±90±3 Gallium Trichloride ...... 500 500/10,000 13463±39±3 Nickel Carbonyl ...... 10 1 13463±40±6 Iron, Pentacarbonyl- ...... 100 100 14167±18±1 Salcomine ...... 500 500/10,000 15271±41±7 Bicyclo[2.2.1]Heptane-2-Carbonitrile, 5-Chloro-6- 500 500/10,000 ((((Methylamino)Carbonyl)Oxy)Imino)-, (1s-(1-alpha,2-beta,4-alpha,5-alpha,6E))-. 16752±77±5 Methomyl ...... h 100 500/10,000 17702±41±9 Decaborane(14) ...... 500 500/10,000 17702±57±7 Formparanated ...... d 1 100/10,000 19287±45±7 Diborane ...... 100 100 19624±22±7 Pentaborane ...... 500 500 20830±75±5 Digoxin ...... h 10 10/10,000 20859±73±8 Aluminum Phosphide ...... b 100 500 21548±32±3 Fosthietan ...... 500 500 21609±90±5 Leptophos ...... 500 500/10,000 21908±53±2 Mercuric Oxide ...... 500 500/10,000 21923±23±9 Chlorthiophos ...... h 500 500 22224±92±6 Fenamiphos ...... 10 10/10,000 23135±22±0 Oxamyl ...... d 1 100/10,000 23422±53±9 Formetanate Hydrochloride ...... d, h 1 500/10,000 23505±41±1 Pirimifos-Ethyl ...... 1,000 1,000 24017±47±8 Triazofos ...... 500 500 24934±91±6 Chlormephos ...... 500 500 20490 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

APPENDIX B TO PART 355ÐTHE LIST OF EXTREMELY HAZARDOUS SUBSTANCES AND THEIR THRESHOLD PLANNING QUANTITIESÐContinued [CAS Number Order]

Reportable Threshold plan- CAS No. Chemical name Notes quantity * ning quantity (pounds) (pounds)

26419±73±8 Carbamic Acid, Methyl-, O-(((2,4-Dimethyl-1, 3-Dithiolan-2-yl)Methylene)Amino)- ...... d 1 100/10,000 26628±22±8 Sodium Azide (Na(N3)) ...... b 1,000 500 27137±85±5 Trichloro(Dichlorophenyl)Silane ...... 500 500 28347±13±9 Xylylene Dichloride ...... 100 100/10,000 28772±56±7 Bromadiolone ...... 100 100/10,000 30674±80±7 Methacryloyloxyethyl Isocyanateh ...... 100 100 39196±18±4 Thiofanox ...... 100 100/10,000 50782±69±9 Phosphonothioic Acid, Methyl-, S-(2-(Bis(1-Methylethyl)Amino)Ethyl) O-Ethyl Ester .... 100 100 53558±25±1 Pyriminil ...... h 100 100/10,000 58270±08±9 Zinc, Dichloro(4,4-Dimethyl-5((((Methylamino) Carbonyl)Oxy)Imino)Pentanenitrile)-, 100 100/10,000 (T±4)-. 62207±76±5 Cobalt, ((2,2'-(1,2-Ethanediylbis (Nitrilomethylidyne)) Bis(6-Fluorophenolato)) (2-)- 100 100/10,000 N,N',O,O')-. *Only the statutory or final RQ is shown. For more information, see 40 CFR Table 302.4. NOTES: a. This chemical does not meet acute toxicity criteria. Its TPQ is set at 10,000 pounds. b. This material is a reactive solid. The TPQ does not default to 10,000 pounds for non-powder, non-molten, non-solution form. c. The calculated TPQ changed after technical review as described in the technical support document. d. Indicates that the RQ is subject to change when the assessment of potential carcinogenicity and/or other toxicity is completed. e. Statutory reportable quantity for purposes of notification under SARA sect 304(a)(2). f. [Reserved] g. New chemicals added that were not part of the original list of 402 substances. h. Revised TPQ based on new or re-evaluated toxicity data. j. TPQ is revised to its calculated value and does not change due to technical review as in proposed rule. k. The TPQ was revised after proposal due to calculation error. l. Chemicals on the original list that do not meet toxicity criteria but because of their high production volume and recognized toxicity are consid- ered chemicals of concern (``Other chemicals'').

[FR Doc. 96–11209 Filed 5–6–96; 8:45 am] SUPPLEMENTARY INFORMATION: This is a Federal Communications Commission. BILLING CODE 6560±50±P synopsis of the Commission’s Report John A Karousos, and Order in MM Docket No. 94–61, Chief, Allocations Branch, Policy and Rules adopted April 16, 1996, and released Division, Mass Media Bureau. April 30, 1996. The full text of this [FR Doc. 96–11325 Filed 5–6–96; 8:45 am] FEDERAL COMMUNICATIONS Commission decision is available for BILLING CODE 6712±01±F COMMISSION inspection and copying during normal business hours in the FCC Reference 47 CFR Part 73 Center (Room 239), 1919 M Street, NW., 47 CFR Part 73 [MM Docket No. 94±61; RM±8464] Washington, DC. The complete text of this decision may also be purchased [MM Docket No. 91±137, RM±7494] from the Commission’s copy contractor, Radio Broadcasting Services; Radio Broadcasting Services; Saltville, Garberville and Hydesville, CA International Transcription Service, Inc., (202) 857–3800, 1919 M Street, VA and Jefferson, NC AGENCY: Federal Communications NW., Room 246, or 2100 M Street, NW., AGENCY: Federal Communications Commission. Suite 140, Washington, DC 20037. Commission. ACTION: Final rule. List of Subjects in 47 CFR Part 73 ACTION: Final rule; denial of reconsideration. SUMMARY: This document allots Channel Radio broadcasting. 231C1 to Hydesville, California. This Part 73 of title 47 of the Code of SUMMARY: The Chief, Policy and Rules document also dismisses a proposal by Division denied the petition for Brett E. Miller to reallot Channel 279C1 Federal Regulations is amended as follows: reconsideration, filed by Smith from Garberville, California, to Communications, Inc., of the Report and Hydesville, California. See 59 FR 35081, PART 73Ð[AMENDED] Order in this proceeding, 56 FR 23260, July 8, 1996. The reference coordinates published May 21, 1991. The Chief also for Channel 231C1 are 40–27–58 and 1. The authority citation for part 73 affirmed the Report and Order and its 124–04–28. With this action, the continues to read as follows: use of the Commission’s standard proceeding is terminated. Authority: Secs. 303, 48 Stat., as amended, propagation prediction methodology. DATES: Effective June 14, 1996. The 1082; 47 U.S.C. 154, as amended. The Report and Order had granted the window period for filing applications petition (RM–7494) of 106.1, Inc. to will open on June 14, 1996, and close § 73.202 [Amended] upgrade the construction permit at on July 15, 1996. 2. Section 73.202(b), the Table of FM Saltville from Channel 291A to Channel FOR FURTHER INFORMATION CONTACT: Allotments under California, is 291C3, to reallot it to Jefferson, and to Robert Hayne, Mass Media Bureau, amended by adding Hydesville, Channel modify its permit to specify Jefferson as (202) 418–2177. 231C1. the new community of license. With Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20491 this action, the proceeding is Management, Department of Veterans 801.104±1 [Removed] terminated. Affairs, 810 Vermont Avenue NW., 3. Section 801.104–1 is removed. EFFECTIVE DATE: Washington, DC 20420, (202) 565–4424. May 7, 1996. 801.104±3 [Removed] SUPPLEMENTARY INFORMATION: This final FOR FURTHER INFORMATION CONTACT: J. 4. Section 801.104–3 is removed. Bertron Withers, Jr., Mass Media rule consists of nonsubstantive changes Bureau, (202) 418–2180. and, therefore, is not subject to the 801.201 [Removed] notice and comment and effective date SUPPLEMENTARY INFORMATION: This is a 5. Section 801.201 is removed. provisions of 5 U.S.C. 553. Also, this synopsis of the Commission’s final rule is not a significant revision as 801.301 [Amended] Memorandum Opinion and Order, MM defined in FAR 1.501–1. Docket No. 91–137, adopted April 19, 6. In § 801.301, paragraph (c) is The Secretary hereby certifies that 1996 and released April 30, 1996. The removed. this final rule will not have a significant full text of this Commission decision is economic impact on a substantial 801.403 [Amended] available for inspection and copying number of small entities as they are 7. In § 801.403, paragraph (b) is during normal business hours in FCC’s defined in the Regulatory Flexibility Act amended by removing the last sentence. Reference Center (Room 239), 1919 M (RFA), 5 U.S.C. 601–602. This final rule Street, NW., Washington, DC. The 801.470 [Removed] would not cause a significant effect on complete text of this decision may also any entities since it does not contain 8. Section 801.470 is removed. be purchased from the Commission’s any substantive provisions. Therefore, copy contractor, International 801.602±72 [Amended] pursuant to 5 U.S.C. 605(b), this Transcription Services, 2100 M Street, 9. In § 801.602–72, paragraph (e)(5) is amendment is exempt from the initial NW., Suite 140, Washington, DC 20037, amended by removing ‘‘806.303’’ and and final regulatory flexibility analysis (202) 857–3800. adding, in its place, ‘‘FAR 6.303’’. requirements of sections 603 and 604. Federal Communications Commission. 801.670±6 [Removed] List of Subjects Douglas W. Webbink, 10. Section 801.670–6 is removed. Chief, Policy and Rules Division, Mass Media 48 CFR Parts 801 and 836 Bureau. Government procurement, Reporting PART 803ÐIMPROPER BUSINESS [FR Doc. 96–11326 Filed 5–6–96; 8:45 am] and recordkeeping requirements. PRACTICES AND PERSONAL BILLING CODE 6712±01±F CONFLICTS OF INTEREST 48 CFR Part 803 803.101±3 [Amended] Antitrust, Conflict of interest, 11. In § 803.101–3, paragraph (a) is DEPARTMENT OF VETERANS Government procurement. amended by removing the second and AFFAIRS 48 CFR Parts 804, 805, 806, 810, 812, third sentences; paragraph (c) is 48 CFR Parts 801, 803, 804, 805, 806, 813, 815, 816, , 834, 837 and 846. removed; and paragraph (d) is 808, 810, 812, 813, 815, 816, 820, 822, Government procurement. redesignated as a new paragraph (c). 828, 833, 834, 836, 837, and 846 48 CFR Part 808 803.104±5 [Removed] RIN 2900±AI02 Government procurement, Utilities. 12. Section 803.104–5 is removed. VA Acquisition Regulations: 48 CFR Parts 820 and 822 803.104±9 [Removed] Miscellaneous Amendments Government procurement, Labor. 13. Section 803.104–9 is removed. AGENCY: Department of Veterans Affairs. 48 CFR Part 828 803.104±11 [Removed] ACTION: Final rule. Government procurement, Insurance, 14. Section 803.104–11 is removed. SUMMARY: This document amends the Surety bonds. 803.104±12 [Removed] Department of Veterans Affairs 48 CFR Part 833 15. Section 803.104–12 is removed. Acquisition Regulations (VAAR) to Administrative practice and 803.3 [Amended] eliminate restatements of the Federal procedure, Government procurement. Acquisition Regulation (FAR), to 16. In subpart 803.3, the subpart eliminate provisions duplicative of Approved: April 29, 1996. heading is amended by removing other provisions in the VAAR, to Jesse Brown, ‘‘IDENTICAL BIDS AND’’. eliminate internal procedures not Secretary of Veterans Affairs. 803.301 [Removed] required to be included in regulations, For the reasons set out in the 17. Section 803.301 is removed. to eliminate provisions that refer to preamble, 48 CFR Chapter 8 is amended activities that no longer can occur (such as follows: 803.408 [Removed] as regulations concerning VA depots 18. Section 803.408 is removed. which no longer exist), to make PART 801ÐVETERANS AFFAIRS corrections, and to make clarifications. ACQUISITION REGULATIONS SYSTEM 803.408±1 [Removed] 19. Section 803.408–1 is removed. EFFECTIVE DATE: May 7, 1996. 1. The authority citation for parts 801, FOR FURTHER INFORMATION CONTACT: 803, 804, 805, 806, 808, 810, 812, 813, 803.409 [Amended] Sherry Patton for parts 801, 803, 804, 815, 816, 822, 828, 833, 836, 837, and 20. In § 803.409, paragraph (a) is 805, 834, 836 and 837; Don Kaliher for 846 is revised to read as follows: removed and the paragraph designation parts 806, 808, 810, 812, 828 and 833; Authority: 38 U.S.C. 501 and 40 U.S.C. ‘‘(b)’’ is removed. Wanza Lewis for parts 813, 815, 816, 486(c). 820 and 822; and Ramona Jones for part 803.603 [Removed] 846; Acquisition Policy Division (95A), 801.104 [Removed] 21. Subpart 803.6 consisting of Office of Acquisition and Materiel 2. Section 801.104 is removed. § 803.603 is removed. 20492 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

PART 804ÐADMINISTRATIVE (a)(10) are redesignated as paragraphs § 816.306 [Removed] MATTERS (a)(2) through (a)(9), respectively. 43. Subpart 816.3 consisting of 804.101 [Amended] 808.304±1±808.304±5, 808.307±2, 808.304± § 816.606 is removed. 22. In § 804.101, paragraph (a) is 70 [Removed] § 816.603 [Removed] 34. Subpart 808.3 consisting of removed and the paragraph designation 44. Subpart 816.6 consisting of ‘‘(b)’’ is removed. §§ 808.304–1 through 808.304–5, § 808.307–2 and § 808.304–70 are is § 816.603 is removed. PART 805ÐPUBLICIZING CONTRACT removed. PART 820Ð[REMOVED] ACTIONS 808.405±5 [Removed] 45. Part 820 is removed. 805.202 [Amended] 35. Section 808.405–5 is removed. 23. Section 805.202 is amended by PART 822ÐAPPLICATION OF LABOR PART 810ÐSPECIFICATIONS, removing the second and third LAWS TO GOVERNMENT STANDARDS, AND PURCHASE sentences. ACQUISITIONS ORDER DESCRIPTIONS 805.207 [Amended] § 822.471 [Removed] § 810.007 [Amended] 24. In § 805.207, paragraphs (a), (b)(1), 36. In § 810.007, paragraph (a)(2)(i) is 46. Section 822.471 is removed. (b)(2) and (b)(3) are removed and the removed, paragraph (a)(2)(ii) is PART 828ÐBONDS AND INSURANCE paragraph designation ‘‘(b)’’ is removed. amended by removing ‘‘When the PART 806ÐCOMPETITION deviation specified in paragraph (a)(2)(i) § 828.307±1 [Removed] of this section is for an item that is not REQUIREMENTS 47. Section 828.307–1 is removed. being purchased for depot stock, 806.302±3 [Amended] document’’ and adding, in its place, PART 833ÐPROTESTS, DISPUTES, 25. Section 806.302–3 is amended by ‘‘Document’’; and paragraphs (a)(2)(ii) APPEALS removing ‘‘sections 806.303 and’’ and and (a)(2)(iii) are redesignated as adding, in its place, ‘‘FAR 6.303 and 48 paragraphs (a)(2)(i) and (a)(2)(ii), § 833.103 [Amended] CFR’’. respectively. 48. In § 833.103, paragraphs (a), (b)(1), (b)(4), and (b)(7)(vii) are removed; 806.302±5 [Amended] PART 812ÐCONTRACT DELIVERY OR paragraph (b) is redesignated as PERFORMANCE 26. Section 806.302–5 is amended by paragraph (a), the new designated removing ‘‘806.303’’ each of the three § 812.503 [Removed] paragraphs (a)(2), (a)(3), (a)(5), (a)(6) and times it appears and adding, in its place, 37. Subpart 812.5 consisting of (a)(7) are redesignated as paragraphs each time ‘‘FAR 6.303’’. § 812.503 is removed. (a)(1) through (a)(5), respectively; the 806.302±7 [Amended] new designated paragraphs (a)(5)(viii) PART 813ÐSMALL PURCHASE AND through (a)(5)(x) are redesignated as 27. Section 806.302–7(b) is amended OTHER SIMPLIFIED PURCHASE paragraphs (a)(5)(vii) through (a)(5)(ix), by removing ‘‘806.303’’ and adding, in PROCEDURES respectively; and paragraphs (c), (d), (e), its place, ‘‘FAR 6.303’’. and (f) are redesignated as paragraphs § 813.103 [Removed] 806.303 [Removed] (b), (c), (d), and (e), respectively. 38. Subpart 813.1 consisting of 28. Section 806.303 is removed. § 813.103 is removed. § 833.211 [Amended] 806.303±1 [Removed] 49. In § 833.211, paragraphs (d) and PART 815ÐCONTRACTING BY (e) are removed. 29. Section 806.303–1 is removed. NEGOTIATION 806.304 [Amended] § 815.502 [Removed] PART 834Ð[REMOVED] 30. In § 806.304, paragraph (a) is 39. Section 815.502 is removed. amended by removing ‘‘6.303 and 50. Part 834 is removed. § 815.800 [Removed] 806.303’’ and adding, in its place, PART 836ÐCONSTRUCTION AND ‘‘6.303,’’. 40. Section 815.800 is removed. ARCHITECT-ENGINEER CONTRACTS § 815.7001±815.7002 [Removed] 806.502 [Amended] § 836.202 [Amended] 31. Section 806.502 is amended by 41. Subpart 815.70 consisting of 51. In § 836.202, paragraph (a) is removing paragraphs (d) and (e). §§ 815.7001 through 815.7002 is removed. removed and the introductory text is 806.570 [Amended] redesignated as new paragraph (a). PART 816ÐTYPES OF CONTRACTS 32. In § 806.570, paragraphs (a) and § 836.211 [Amended] (c) are removed, the paragraph § 816.102 [Amended] designation ‘‘(b)’’ is removed, and 52. In § 836.211, paragraphs (a), (b), paragraphs (b) (1) through (5) are 42. In § 816.102, paragraphs (a) and and (d) are removed, and the paragraph redesignated as paragraphs (a) through (c) are removed, paragraph (b) is designation ‘‘(c)’’ is removed. (e), respectively. amended by removing ‘‘of the type specified in paragraph (a)(3) of this § 836.371 [Amended] PART 808ÐREQUIRED SOURCES OF section’’; paragraphs (b), (d), and (e) are 53. In § 836.371, paragraph (a) is SUPPLIES AND SERVICES redesignated as paragraphs (a), (b), and amended by removing the second and (c), respectively, and the new third sentences. 808.001 [Amended] redesignated paragraph (c) is amended 33. In § 808.001, paragraph (a)(2) is by removing the reference to paragraph § 836.601 [Removed] removed and paragraphs (a)(3) through ‘‘(d)’’ and adding, in its place, ‘‘(b)’’. 54. Section 836.601 is removed. Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20493

§ 836.602±1 [Amended] 48 CFR Part 871 economic impact on a substantial number of small entities as they are 55. In § 836.602–1, paragraph (c) is RIN 2900±AG65 removed and paragraph (d) is defined in the Regulatory Flexibility redesignated as new paragraph (c). VA Acquisition Regulations: Loan Act, 5 U.S.C. 601–612. This final rule Guaranty and Vocational Rehabilitation would not cause a significant effect on § 836.602±3 [Removed] and Counseling Programs any entities. Therefore, pursuant to 5 56. Section 836.602–3 is removed. U.S.C. 605(b), this final rule is exempt AGENCY: Department of Veterans Affairs. from the initial and final regulatory § 836.606±70 [Amended] ACTION: Final rule. flexibility analyses requirements of 57. In § 836.606–70, the first 5 §§ 603 and 604. SUMMARY: This document adopts as a sentences are removed. This document is made effective on final rule without substantive change the date of publication. It restates § 836.606±71 [Amended] the provisions of a proposed rule to statutory provisions and relieves amend the Department of Veterans restrictions. 58. In § 836.606–71, the second and Affairs (VA) acquisition regulations fourth sentences are removed. List of Subjects in 48 CFR Part 871 (VAAR). This final rule increases to § 836.606±73 [Amended] $500 the blanket advance authority of Government procurement, Loan management brokers to incur routine programs-social programs, Loan 59. In § 836.606–73, paragraph (a) is charges in connection with the programs-veterans, Reporting and amended by removing ‘‘fee limitation on management of properties acquired by recordkeeping requirements, Vocational architect or engineer services set forth in VA under VA’s housing and small rehabilitation. section 304(b) of the Federal Property business loan programs (38 U.S.C. and Administration Services Act of Approved: March 18, 1996. Chapter 37). It also increases to $500 the 1949, as amended, and referred to in Jesse Brown, property holders’ emergency repair FAR 15.903(d)(1)(ii), applies to those Secretary of Veterans Affairs. threshold. In addition, Regional Office services generally required in preparing For the reasons set forth in the Directors, Loan Guaranty Officers, and working drawings and specifications preamble, 48 CFR part 871 is amended Assistant Loan Guaranty Officers are which form the basis for bidding and for as set forth below: authorized to approve repair programs the award of construction contract. The where the estimated cost (i.e., the fixed’’. PART 871ÐLOAN GUARANTY AND aggregate amount of the proposed VOCATIONAL REHABILITATION AND PART 837ÐSERVICE CONTRACTING contracts to purchase supplies and COUNSELING PROGRAMS services as contemplated in a property § 837.104 [Amended] analysis by the Loan Guaranty activity) 1. The authority citation for part 871 is revised to read as follows: 60. In § 837.104, paragraph (a) is does not exceed $25,000. Further, amended by removing ‘‘, except to the nonsubstantive changes are made for Authority: 10 U.S.C. ch. 106, 107, 1606; 38 extent indicated in 815.204 and subpart purposes of clarity and to reflect U.S.C. 501, ch. 30, 31, 32, 35, 36, 37; 40 U.S.C. 486(c). 837.2,’’. organizational changes. These changes are intended to promote the efficient Subpart 871.1ÐLoan Guaranty § 837.200 [Removed] management of VA’s acquired property Program 61. Section 837.200 is removed. inventory. EFFECTIVE DATE: May 7, 1996. 2. Section 871.101 is revised to read § 837.204 [Removed] FOR FURTHER INFORMATION CONTACT: as follows: 62. Section 837.204 is removed. Wanza E. Lewis, Acquisition Policy 871.101 Policy. Division (95A), Office of Acquisition § 837.205 [Removed] All acquisitions for the repair and and Materiel Management, Department maintenance of VA property acquired 63. Section 837.205 is removed. of Veterans Affairs, 810 Vermont under 38 U.S.C. Chapter 37 shall be Avenue, NW., Washington, DC 20420, § 837.271±5 [Amended] made in accordance with FAR Parts 14, (202) 565–4424. 15, and 16; (VAAR) 48 CFR Parts 814, 64. Section 837.271–5 and SUPPLEMENTARY INFORMATION: On 815, and 816; and (VAAR) 48 CFR Appendices A and B to subpart 837.2 February 14, 1994, we published in the subpart 871.1. are removed. Federal Register (59 FR 6942) a (Authority: 10 U.S.C. ch. 106, 107, 1606; 38 § 837.7002±7002 [Amended] proposal to amend provisions of the U.S.C. 501, ch. 37; 40 U.S.C. 486(c)) VAAR captioned ‘‘LOAN GUARANTY 65. In § 837.7002, the last sentence is AND VOCATIONAL REHABILITATION 871.102 [Amended] removed. AND COUNSELING PROGRAMS’’. We 3. In § 871.102, paragraph (a) is solicited comments concerning the PART 846ÐQUALITY ASSURANCE amended by adding ‘‘, Loan Guaranty proposal for 60 days ending April 15, Officers, and Assistant Loan Guaranty § 846.302 [Removed] 1994. We did not receive any comments. Officers’’ after ‘‘Directors’’; by removing The information presented in the ‘‘purchase supplies and services for the 66. Section 846.302 is removed. proposal still provides a basis for this repair to’’ and adding, in its place, § 846.403 [Removed] final rule. We are making several ‘‘approve a repair program for’’; and by nonsubstantive changes, but otherwise, removing ‘‘$5,000 on any single 67. Section 846.403 is removed. based on the rationale set forth in the transaction’’ and adding in its place § 846.408±72 [Removed] proposal, we are adopting the ‘‘$25,000. A repair program means the provisions of the proposed rule as a aggregate amount of the proposed 68. Section 846.408–72 is removed. final rule without change. contracts which are contemplated in a [FR Doc. 96–11276 Filed 5–6–96; 8:45 am] The Secretary hereby certifies that property analysis by the Loan Guaranty BILLING CODE 8320±01±P this final rule will not have a significant activity’’. 20494 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

4. In § 871.102, paragraph (b) is 871.207 [Amended] point of final release. Notice and amended by removing ‘‘$5,000’’ and 13. In § 871.207, paragraph (b)(2) is comment procedures are unnecessary adding in its place ‘‘$25,000’’ and by amended by removing ‘‘Veterans with regard to the general statement of removing ‘‘Chief Benefits Director’’ and Administration’’ and adding in its place policy and interpretation issued by this adding in its place ‘‘Under Secretary for ‘‘Department of Veterans Affairs’’. notice because such a statement is Benefits’’. excepted from notice and comment [FR Doc. 96–11277 Filed 5–6–96; 8:45 am] 5. In § 871.102, in paragraph (c) the procedure by virtue of 5 U.S.C. second sentence is amended by BILLING CODE 8320±01±P 553(b)(3)(A). Statements of policy are removing ‘‘Chief Benefits Director’’ and also an exception to the general adding in its place ‘‘Under Secretary for requirement of publication at least 30 Benefits’’. DEPARTMENT OF TRANSPORTATION days prior to the effective date. See 5 U.S.C. 553(d)(2). 6. In § 871.102, paragraph (d) is Federal Railroad Administration amended by removing ‘‘$200’’ and Effect of this Notice adding in its place ‘‘$500’’. 49 CFR Part 228 On January 8, 1996, the United States 7. In § 871.102, in paragraph (e) the Decision of the United States Supreme Supreme Court issued its decision in the first sentence is amended by removing case of Brotherhood of Locomotive ‘‘listed with him/her’’ and adding in its Court Concerning an Agency Interpretation of the Federal Hours of Engineers v. Atchison, Topeka and place ‘‘assigned’’; the second sentence is Santa Fe R.R.,ll U.S. ll, 116 S.Ct. amended by removing ‘‘$200’’ and Service Laws; Change in Agency Interpretation; Enforcement Policy 595, affirming the decision of the United adding in its place ‘‘$500’’ and by States Court of Appeals for the Seventh removing ‘‘his/her’’ and adding in its Regarding Violations of Laws as Previously Interpreted Circuit in the case of Atchison, Topeka, place ‘‘the’’; and the third sentence is and Santa Fe Railway Co. v. Pen˜ a, 44 amended by removing ‘‘$200’’ and AGENCY: Federal Railroad F.3d 437 (1994). Both cases concern adding in its place ‘‘$500’’. Administration (FRA), Department of FRA’s interpretation of the HSL as they 871.103 [Removed] Transportation (DOT). pertain to the status of train crewmembers waiting for the arrival of 8. Section 871.103 is removed. ACTION: Statement of agency policy and interpretation. deadhead transportation to their point 871.105 [Removed] of final release. The Supreme Court SUMMARY: Notice is hereby given that, in unanimously held that such time, when 9. Section 871.105 is removed. accordance with the decision of the no additional services are required of 871.106 [Amended] United States Supreme Court in railroad carrier employees, should be 10. In § 871.106, in paragraph (b) the Brotherhood of Locomotive Engineers v. classified as limbo time (i.e., neither on- second sentence is amended by Atchison, Topeka and Santa Fe R.R., all nor off-duty time) for HSL purposes. The Supreme Court’s holding removing ‘‘or material men’’ and is time spent awaiting the arrival of a coincided with the position that FRA amended by removing ‘‘his/her’’ and deadhead vehicle for transportation to had traditionally taken until the agency adding in its place ‘‘the the point of final release, when no changed its interpretation of the HSL in subcontractor’s’’. additional services are required of railroad carrier employees, shall be late 1992. Prior to that change, FRA had Subpart 871.2ÐVocational treated by FRA as time neither on nor considered an employee to be on duty Rehabilitation and Counseling off duty for purposes of the Federal during the time spent waiting for the Program hours of service laws (‘‘HSL’’), arrival of deadhead transportation to the throughout the entire nation. FRA is employee’s point of final release only if 11. Section 871.200 is revised to read amending its current interpretive the employee actually had duties to as follows: statement to reflect this Supreme Court perform. If the railroad carrier had decision. relieved the employee of all 871.200 Scope of subpart. responsibility, FRA had considered EFFECTIVE DATE: January 8, 1996. This subpart establishes policy and such time spent merely waiting for the procedures for the vocational FOR FURTHER INFORMATION CONTACT: deadhead vehicle to arrive as limbo rehabilitation and counseling program Edward R. English, Director, Office of time. as it pertains to contracts for training Safety Assurance and Compliance, However, on September 22, 1992, in and rehabilitation services, approval of Office of Safety, FRA, 400 Seventh response to lawsuits filed by the United institutions (including rehabilitation Street, S.W., Washington, D.C. 20590 Transportation Union and the facilities), training establishments, and (telephone: 202–366–9252); or David H. Brotherhood of Locomotive Engineers, a employers under 38 U.S.C. Chapter 31, Kasminoff, Trial Attorney, Office of three-judge panel of the United States and contracts for counseling services Chief Counsel, FRA, 400 Seventh Street, Court of Appeals for the Ninth Circuit under 38 U.S.C. Chapters 30, 31, 32, 35, S.W., Washington, D.C. 20590 held that such time spent waiting for and 36 and 10 U.S.C. Chapters 106, 107, (telephone: 202–366–0628). transportation was to be considered on- and 1606. SUPPLEMENTARY INFORMATION: duty time. United Transportation Union v. Skinner, 975 F.2d 1421 (9th Cir. (Authority: 10 U.S.C. ch. 106, 107, 1606; 38 Public Participation U.S.C. 501, ch. 30, 31, 32, 35, 36; 40 U.S.C. 1992). The Ninth Circuit includes 486(c)) In this notice FRA is announcing that Alaska, Arizona, California, Guam, it has changed its interpretation of the Hawaii, Idaho, Montana, Nevada, 871.201±3 [Amended] HSL (49 U.S.C. 20102, 21101–21108, Oregon, and Washington. Although FRA 12. Section 871.201–3 is amended by 21303, and 21304), consistent with a disagreed with the Ninth Circuit’s legal removing ‘‘Veterans Health Services and unanimous decision of the United States rationale, FRA recognized both the Research Administration’’ and adding in Supreme Court, concerning the ambiguity of the HSL’s pertinent its place ‘‘Veterans Health treatment of time spent awaiting the provisions and the reasonableness of the Administration’’. arrival of deadhead transportation to the court’s ultimate conclusion as to the Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20495 proper reading of those provisions. the arrival of the deadhead vehicle after 49 CFR Part 228 to reflect the fact that, Accordingly, in the interest of uniform the expiration of the maximum 12 in addition to computing time spent in application of the HSL and to promote hours. The Court made clear that the deadhead transportation from the final the safety of railroad operations, FRA laws account for that circumstance by duty assignment of the work tour to the decided to treat the Ninth’s Circuit treating such time as time on duty point of final release as limbo time (time opinion as binding throughout the pursuant to 49 U.S.C. 21103(b)(3) neither on- nor off- duty), all time spent entire nation. That shift in agency (commingled service provision). Of awaiting the arrival of a deadhead policy was announced in an October 28, course, where a railroad carrier’s vehicle for transportation to the point of 1992 letter to the Association of operating rules clearly relieve an final release, when no additional American Railroads (AAR), and was employee of all duties during the services are required of the railroad later published in the Federal Register. waiting period and no duties are employee, shall also be treated by FRA 58 Fed. Reg. 18,193 (1993). specifically assigned, the employee’s as limbo time for purposes of the laws. FRA had always believed that both waiting time will be considered limbo the Ninth Circuit’s interpretation of the time. List of Subjects in 49 CFR Part 228 relevant HSL provisions, and what Consistent with the Supreme Court’s Penalties, Railroad employees, became the Seventh Circuit’s holding, FRA is ceasing all enforcement Reporting and recordkeeping interpretation, were reasonable. While activity concerning alleged violations of requirements. FRA adopted the Ninth Circuit’s the HSL and hours of duty records and interpretation in 1992 primarily to reporting regulations (49 CFR Part 228, In consideration of the foregoing, 49 achieve national uniformity, the Subpart B) occurring anywhere in the CFR Part 228 is amended as follows: contrary decision of the Seventh Circuit United States involving only the in 1994 made that goal impossible to awaiting deadhead issue. Allegations of PART 228Ð[AMENDED] achieve until the Supreme Court finally excess service involving only this issue resolved the split between the circuit are no longer being investigated by FRA. 1. The authority citation for 49 CFR courts. Moreover, upon review of the Moreover, all case files containing Part 228 is revised to read as follows: Seventh Circuit’s unanimous, en banc violation reports involving only this Authority: 49 U.S.C. 20102–20103, 20107– decision, FRA concluded that the issue, regardless of the location or the 20108, 20111, 20112, 21101–21108, 21303– Seventh Circuit’s reading of the date of the alleged violation, will soon 21304, as amended; 49 U.S.C. App. 1655(e), pertinent HSL provisions was better be terminated. FRA’s Office of Chief as amended; 49 CFR 1.49(d), (m). reasoned than the decision of the Ninth Counsel will provide the legal Circuit. Accordingly, FRA stated in a department of each railroad impacted by 2. Appendix A to Part 228 is March 1, 1995 letter to AAR that, the Supreme Court’s decision with a amended: By revising the second effective March 6, 1995, with respect to complete list of the case files that are paragraph of Deadheading, under the locations outside of the territory of the affected by this policy change. undesignated centerheading ‘‘Train and Ninth Circuit, FRA would revert to its Although time spent awaiting the Engine Service,’’ to read as follows: prior view that all time spent merely arrival of deadhead transportation to the waiting on a train for the arrival of employee’s point of final release will Appendix A to Part 228ÐRequirements deadhead transportation to the now constitute limbo time and FRA will of the Hours of Service Act: Statement employee’s point of final release would enforce the laws accordingly, FRA of Agency Policy and Interpretation remains concerned about instances in be treated as limbo time. * * * * * Now that the Supreme Court has which employees are held on trains for resolved the split in the circuits, this long periods of time while awaiting the Train and Engine Service means that effective January 8, 1996, arrival of deadhead transportation in the * * * * * FRA treats an employee merely required absence of any valid emergency that to remain on a train—at a location in might explain such an occurrence. To Deadheading. * * * any state in the nation—while awaiting the extent that the waiting periods are the arrival of deadhead transportation to extremely lengthy, current scientific All time spent awaiting the arrival of the employee’s point of final release, as information concerning sleep cycles and a deadhead vehicle for transportation neither on nor off duty; the employee’s the effects of fatigue on safety-sensitive from the final duty assignment of the status most closely resembles, and is performance indicates that the waiting work tour to the point of final release is part and parcel of, deadheading from periods could contribute to the considered limbo time, i.e., neither time duty. cumulative exhaustion of the employee. on duty nor time off duty, provided that However, as FRA has long This cumulative exhaustion could occur the employee is given no specific maintained, if an employee is required even though the employee receives the responsibilities to perform during this to perform service of any kind during legally required rest period upon arrival time. However, if an employee is that period (e.g., protecting the train at the point of final release. required to perform service of any kind against vandalism, observing passing Accordingly, it is FRA’s expectation that during that period (e.g., protecting the trains for any defects or unsafe the railroad carriers will voluntarily train against vandalism, observing conditions, flagging, shutting down employ their best efforts to minimize passing trains for any defects or unsafe locomotives, checking fluid levels, or the time that employees spend waiting conditions, flagging, shutting down communicating train consist for the arrival of deadhead locomotives, checking fluid levels, or information via radio), he or she will be transportation. FRA also urges the communicating train consist considered as on duty until all such railroad carriers to devise pilot projects information via radio), he or she will be service is completed. Moreover, the under the laws, pursuant to 49 U.S.C. considered as on duty until all such Supreme Court’s decision addressed the 21108, that might reduce the awaiting- service is completed. Of course, where situation in which a crew that has deadhead time in return for flexibility a railroad carrier’s operating rules expired under the laws is called upon on other hours of service issues. clearly relieve the employee of all duties to perform nonoperational duties (i.e., FRA is amending its current during the waiting period and no duties commingled duties) while it waits for interpretive statement in Appendix A to are specifically assigned, the waiting 20496 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations time is not computed as either time on Rulemaking Analyses and Notices FHWA has evaluated the effects of this duty or time off duty. This final rule simply revises the rule on small entities. Based upon this * * * * * authority citation for the FHWA’s evaluation, the FHWA certifies that this Jolene M. Molitoris, Transportation of Hazardous Materials final rule will not have a significant Federal Railroad Administrator. regulations to remove an incorrect economic impact on a substantial number of small entities. [FR Doc. 96–11224 Filed 5–6–96; 8:45 am] reference and to insert several BILLING CODE 4910±06±P references, one of which was used Executive Order 12612 (Federalism previously but was then erroneously Assessment) removed. Thus, the FHWA believes that Federal Highway Administration prior notice and opportunity for The FHWA has reviewed this action comment are unnecessary under 5 to ensure its compliance with the 49 CFR Part 397 U.S.C. 553(b)(3)(B). Similarly, due to the principles and criteria contained in Executive Order 12612, and it has been RIN 2125±AD90 editorial nature of this final rule, the FHWA has determined that prior notice determined that this rulemaking does Transportation of Hazardous Materials and opportunity for comment are not not raise sufficient federalism issues to Regulations; Technical Amendment required under the Department of warrant the preparation of a separate Transportation’s regulatory policies and Federalism Assessment. This final rule AGENCY: Federal Highway procedures. It is not anticipated that will not preempt any State law or State Administration (FHWA), DOT. provision of a comment period would regulation, and no additional costs or ACTION: Final rule; technical result in the receipt of useful burdens will be imposed on the States. amendment. information. In this final rule, the In addition, this rule will have no effect on the States’ ability to discharge SUMMARY: This document makes a FHWA is not exercising discretion in a way that could be meaningfully affected traditional State governmental technical amendment to correct the functions. authority citation for 49 CFR part 397. by public comment. A citation which was erroneously In addition, the FHWA finds that Executive Order 12372 deleted will be reinserted, and other good cause exists to dispense with the (Intergovernmental Review) 30-day delay in the effective date specific references will be added to Catalog of Federal Domestic update this authority citation. required by 5 U.S.C. 553(d) due to the minor and technical nature of these Assistance Number 20.217, Motor EFFECTIVE DATE: May 7, 1996. amendments. Thus, the FHWA is Carrier Safety. The regulations FOR FURTHER INFORMATION CONTACT: Mr. proceeding directly with a final rule implementing Executive Order 12372 Nathan C. Root, Office of Motor Carrier which will be effective on its date of regarding intergovernmental Research and Standards, (202) 366–4009 publication. consultation on Federal programs and or Raymond W. Cuprill, Office of Chief activities do not apply to this program. Counsel, (202) 366–0834. Office hours Executive Order 12866 (Regulatory are from 7:45 a.m. to 4:15 p.m., e.t., Planning and Review) and DOT Paperwork Reduction Act Monday through Friday, except Federal Regulatory Policies and Procedures This action does not contain a holidays. Because this rule simply makes collection of information requirement SUPPLEMENTARY INFORMATION: minor, technical corrections to the for the purposes of the Paperwork authority citation for 49 CFR part 397, Reduction Act of 1995, 44 U.S.C. 3501– Background this rulemaking is not likely to have an 3520. In 1988, in the course of making other annual effect on the economy of $100 National Environmental Policy Act changes to part 397, the Federal million or more. It is also not expected Highway Administration (FHWA) to cause an adverse effect on any sector The agency has reviewed this action inadvertently eliminated from the of the economy. In addition, no serious to ensure compliance with the National authority citation the reference to inconsistency or interference with Environmental Policy Act of 1969 (42 section 204 of the Interstate Commerce another agency’s actions or plans will U.S.C. 4321–4347) and has determined Act, as amended (formerly found at 49 result. Thus, the FHWA has determined that this action will have no effect on U.S.C. 304). The FHWA did not intend that this action is not a significant the quality of the environment. Thus, an to eliminate this reference, and with this regulatory action under Executive Order environmental impact statement is not rulemaking, the FHWA is simply 12866. Neither is it a significant required. reinserting into the authority citation rulemaking under the Department of Regulation Identification Number this reference (now codified at 49 U.S.C. Transportation’s regulatory policies and 31502). The FHWA is also adding to the procedures because it also does not A regulation identification number authority a reference to 49 U.S.C. 31136 concern a matter about which there is (RIN) is assigned to each regulatory (formerly section 206 of the Motor substantial public interest or action listed in the Unified Agenda of Carrier Safety Act of 1984). This citation controversy; it will not have a Federal Regulations. The Regulatory refers to the authority of the Secretary substantial effect on State and local Information Service Center publishes of Transportation to prescribe governments or raise a major the Unified Agenda in April and regulations on commercial motor transportation safety problem; in October of each year. The RIN contained vehicle safety. In addition, the FHWA is addition, it will not initiate a substantial in the heading of this document can be amending in the authority section the regulatory program or change in policy. used to cross reference this action with current reference to 49 U.S.C. 5101 et Therefore, a full regulatory evaluation is the Unified Agenda. seq. in order to reflect the specific not warranted. List of Subjects in 49 CFR Part 397 sections of the law—49 U.S.C. 5112 and 5125—that provide the authority for the Regulatory Flexibility Act Hazardous materials transportation, regulations found in subparts C through In compliance with the Regulatory Highway safety, Highways and roads, E of 49 CFR part 397. Flexibility Act (5 U.S.C. 601–612), the Motor carriers, Motor vehicle safety. Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20497

Issued on: April 29, 1996. the Federal Register to initiate Proposed Amendments to Standard No. Rodney E. Slater, rulemaking that would amend Standard 108 Federal Highway Administrator. No. 108 so as to allow replaceable bulb S4 Definitions. NHTSA proposed to The FHWA hereby amends 49 CFR headlamps to incorporate short arc add a definition of ‘‘filament’’ to read: discharge light sources (60 FR 31939). part 397 by revising the authority Filament means that part of the light citation to read as follows: As NHTSA noted in the NPRM, short source or light emitting element(s), such as arc discharge headlamp systems are a resistive element, the excited portion of a PART 397ÐTRANSPORTATION OF specific mixture of gases under pressure, or HAZARDOUS MATERIALS; DRIVING commonly referred to as ‘‘high intensity discharge’’ (HID) systems. Presently, the any part of other energy conversion sources, AND PARKING RULESÐ[AMENDED] that generates radiant energy which can be only HID application in production for seen. Authority: 49 U.S.C. 322; 49 CFR 1.48. lamps covered by Standard No. 108 is Subpart A also issued under 49 U.S.C. 31136, in headlamps, and the only way HID No comments were received on this 31502. Subparts C, D, and E also issued headlamps can be used under Standard issue and the proposed definition is under 49 U.S.C. 5112, 5125. No. 108 is in an ‘‘integral beam adopted. Paragraph S7.7(i). The NPRM [FR Doc. 96–11373 Filed 5–6–96; 8:45 am] headlighting system’’ (Section S7.4). proposed amendments to paragraph BILLING CODE 4910±22±P Thus, today, HID headlamps are S7.7(i). Under the final rule published comprised of a headlamp body on November 28, 1995 (60 FR 58522), (including reflector and lens), a small National Highway Traffic Safety transferring HB type light sources to transparent envelope containing a Administration part 564, paragraph S7.7(i) became specific mixture of gases under high paragraph S7.7(b). Under the final rule 49 CFR Parts 564 and 571 pressure (the discharge bulb), and an published today, paragraph S7.7(b) electronic ballast to convert low voltage [Docket No. 95±47; Notice 2] becomes S7.7(d). The following direct current to a controlled output summary of the proposal adopts the RIN 2127±AF65 high voltage direct or alternating current nomenclature of the final rule, which to drive the discharge bulb. does not significantly differ from the Replaceable Light Source Information; proposal. Federal Motor Vehicle Safety However, by definition (S4), an integral beam headlamp (including Paragraph S7.7(d) discusses the Standards Lamps, Reflective Devices, procedures for measuring maximum and Associated Equipment those with HID light sources) is one with an ‘‘integral and indivisible optical power and luminous flux. This is AGENCY: National Highway Traffic assembly’’, and a headlamp that is ‘‘not followed by two new subparagraphs, the first of which, S7.7(d)(1), applies Safety Administration (NHTSA), DOT. a replaceable bulb headlamp * * *.’’ In specifically to seasoning requirements ACTION: Final rule. the event of damage to one component, for light sources with resistive element such as the lens, the entire unit, ballast SUMMARY: This document amends the type filaments and luminous flux Federal motor vehicle safety standard and all, must be replaced. The cost to measurement requirements for HB Type on lighting to allow high intensity replace an integral beam HID headlamp bulbs. The second, S7.7(d)(2), applies to discharge (HID) light sources to be used is substantially higher than the cost of seasoning requirements for light sources in replaceable bulb headlamp systems, replacing a more conventional using excited gas mixtures as filaments in addition to their presently allowed headlamp. The initial HID headlamp or discharge arcs and associated use in integral beam headlamp systems. permitted (as a result of NHTSA- luminous flux measurement. As for Adoption of this amendment requires initiated amendments to Standard No. seasoning of light sources using other corresponding amendments to part 564, 108 to facilitate their introduction) was energy conversion sources, NHTSA will the regulation under which Docket No. an integral-type design. At the time, it address this issue when industry has 93–11 was established as a depository was unknown how to define HID identified such sources. for replaceable light source information. sources as replaceable bulb light OSI recommended that the seasoning However, if the life of the light source sources. The agency is now furthering for resistive and excited-gas light approaches that of the vehicle, as is the HID headlamp technology by defining sources (including ballasts) should be case with HIDs, interchangeability will HID’s as ‘‘replaceable light sources’’, so one percent of rated life, as set forth in no longer be so important. Therefore, that headlamp components may be SAE Recommended Practice J2009 NHTSA is adding Appendix B to part individually replaced. This amendment FEB93 Discharge Forward Lighting 564 which allows a manufacturer to to Standard No. 108 means that a Systems (hereafter ‘‘SAE J2009’’). Ford submit fewer items of dimensional vehicle manufacturer wishing to offer also recommended that seasoning for information if it can demonstrate that HID headlamps now has a choice excited gas light sources (including the rated laboratory life of its light ballast) be in accordance with SAE source is not less than 2,000 hours. between two types, integral and replaceable light source. J2009. Additionally, Ford recommended DATES: Effective Date: The amendments that seasoning for resistive element type to the Code of Federal Regulations, and Comments in support of the NPRM filaments be in accordance with SAE the requirements of the amendments, were received from the American J1383 APR85. NHTSA notes that its are effective June 6, 1996. Automobile Manufacturers Association proposed amendments affecting Petition Date: Petitions for (AAMA), Ford Motor Co., Hella, Inc., ‘‘seasoning’’ are consistent with the OSI reconsideration must be received not Koito Manufacturing Co. Ltd., OSRAM and Ford recommendations. later than June 21, 1996. Sylvania, Inc. (OSI), and Stanley Ford found proposed paragraph FOR FURTHER INFORMATION CONTACT: Electronic Co., Inc. Comments opposing S7.7(i) confusing and it suggested Kenneth O. Hardie, Office of the proposal were received from the changes which it felt would clarify Rulemaking (202–366–6987). Insurance Institute for Highway Safety NHTSA’s intent. NHTSA concurs, and SUPPLEMENTARY INFORMATION: On June (IIHS) and Advocates for Highway and has rewritten the provision as S7.7(b) 19, 1995, NHTSA published a notice in Auto Safety (Advocates). (In addition to recommending specific 20498 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations requirements for the measurement of varying degrees of information detail the information specified in Appendix luminous flux for a light source with a dependent upon the rated laboratory life B, if the ‘‘rated average laboratory life’’ resistive element type filament, Ford of the light source.’’ NHTSA disagrees; is not less than 2,000 hours. The SAE did not object to the NHTSA proposal the intended purposes of Appendix A has addressed this issue in sections 4.3 to specifically cite seasoning and Appendix B are different. One and 4.9 of SAE J2009. These sections requirements for light sources using an purpose of the former is to assure that specify procedures and tests to excited gas mixture). replacement light sources are available determine life of the total HID system Regarding proposed paragraph and interchangeable. This is not a measured in both hours and starting S7.7(l)(7) which would require the date purpose of Appendix B because long- cycles. NHTSA is adopting the term of manufacture to be placed on the light life light sources need not be used there, ‘‘rated laboratory life.’’ In so source, Ford asked that it not be manufactured for interchangeability doing, it also examined the definition of adopted as it provides no safety benefit purposes by many different aftermarket ‘‘rated average laboratory life’’ which and because Standard No. 108 does not suppliers. Because light sources with appears in SAE Standard J1383 JUN90. require date of manufacture marking for specifications filed under Appendix B It found that SAE J1383 JUN90 was any other lamps or lighting equipment. are expected to last the life of the suitable for incandescent light sources NHTSA concurs, and the proposal is not vehicle, component replacement would where lumen drop off occurs at a adopted. be necessitated primarily by damage. relatively steady rate over life, but that Readers should note that proposed Thus it is unlikely that the low demand HID system lumens drop rapidly during new paragraph S7.7(l) is adopted as for replacement components would be the initial burning hours and then, later, paragraph S7.7(e). New section S7.7(f) is met by other than manufacturers of the tend toward a more level rate of drop. added to state that, for light sources that original equipment devices. This In Koito’s view, Appendix B is not use light generated by gaseous discharge distinction from Appendix A requires necessary. It believes that all light lighting sources, seasoning shall be in two different statements of regulatory source submittals to part 564, including accordance with section 4.0, and the purposes in section 564.2. HIDs, and regardless of the rated ‘‘rated laboratory life’’ shall be Finally, Appendix B allows laboratory life, should contain the determined in accordance with sections manufacturers to retain ballast design information required in Appendix A. It 4.3 and 4.9 of SAE J2009. parameters that may include proprietary indicated that the life in hours of an HID S8 Tests and Procedures for Integral manufacturing specifications, whereas light source will vary with the ballasts Beam and Replaceable Bulb Appendix A requires disclosure of such combined with it. Therefore, life in Headlighting Systems. In the NPRM, aspects as they relate to hours for an HID light source is NHTSA proposed adding ‘‘specific gas interchangeability. essentially meaningless if the original mixture’’ type light sources in the tests Paragraph 564.5(a). Under the ballast is changed to another type of specified in S8 to replace ‘‘non-filament proposal, relevant manufacturers must ballast. NHTSA understands this. It is type.’’ There was no objection and S8 is ‘‘furnish the information specified in for this reason that NHTSA is adopting amended as proposed. appendix A or appendix B.’’ Ford the language proposed in the NPRM that Other Issues Associated with Short suggested that this implied that Item III of Appendix B specifies the Arc Discharge Lighting Systems. The manufacturers could file under either rated laboratory life of the light source/ only regulatory requirement that Appendix when filing under Appendix ballast combination instead of that of NHTSA proposed that addressed the B is allowable only for long-life light the light source alone. Item IV of issue of electrical shock was the sources. NHTSA has made an editorial Appendix B of this final rule reflects marking of the ballast with an change to clarify that Appendix B is this requirement. Appendix B was appropriate warning. Stanley available only for long-life light sources, specifically intended to accommodate recommended the adoption of a while both Appendices are available for all ballasts that are functionally universally agreed upon marking system long- life light source information. interchangeable with a light source but such as specified by the International Appendix B. Commenters concurred different in design. New paragraph Standards Organization (ISO). However, with NHTSA’s proposed benchmark S7.7(e)(4) of Standard No. 108, adopted NHTSA wishes to allow manufacturers that not less than 2,000 hours of rated in this final rule, requires that each wide latitude in choosing their warnings laboratory life is a suitable designation ballast filed with a light source bear regarding electrical shock and has not of a long-life light source. In accordance permanent markings that indicate the followed Stanley’s suggestion in the with the proposal, in the final rule the rated laboratory life of the combination. final rule. manufacturer of such a light source may Any part 564 submittal for a light source provide the lesser amount of requiring ballasts for operation must Proposed Amendments to Part 564 information that will be required by include information that specifically General. Ford would replace all Appendix B, but, at its option, can make identifies all ballasts that will be used references to ‘‘filament’’ with ‘‘filament its submission under Appendix A. In with the light source. Substitution of a or discharge arc.’’ NHTSA agrees, and either event, a replaceable light source ballast other than that identified with this has been done when the text could which is the subject of information the light source in part 564 is not specifically refer to either. Also as submitted to Docket No. 93–11 is permitted. indicated previously, the definition of required to comply with Standard No. It is important that ballast information ‘‘filament’’ that was proposed to be 108. be submitted. NHTSA considers the added to Standard No. 108, and it Stanley commented that a clear electronic ballast along with the applies to part 564 by virtue of Section definition of ‘‘life’’ was not provided in transparent envelope containing a 564.4 which incorporates definitions the NPRM, and recommended that specific mixture of gases under pressure used in other NHTSA regulations. ‘‘life’’ of a light source be defined in (the discharge bulb) to be an integral Section 564.2 Purpose. Ford terms of luminous flux maintenance. part of the light source system, although recommended that this section not be NHTSA concurs that an explanation is the bulb and ballast may be separate revised because both Appendix A and desirable, since Standard No. 108 and components. Furthermore, in Appendix B have a common purpose; Part 564 both indicate that determining compliance with Standard ‘‘they merely accomplish it by requiring manufacturers may optionally furnish No. 108, testing of the light source Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20499 without a designated ballast would be permitted in integral beam lighting addressed these concerns in the difficult if not impossible. systems, and will continue to be so used preamble to the proposal (see 60 FR at NHTSA has decided not to act upon even if they are not permitted in 31942). In that discussion, NHTSA Koito’s recommendation that all light replaceable bulb systems. However, the noted that SAE J2009 recognizes UV source submittals (including HID) be proposal to allow them in such systems radiation and electric shock as potential required to fulfill all informational is being adopted because there are no safety hazards. To address the hazard of requirements of Appendix A. The intent safety disbenefits in allowing them. The UV radiation, the lighting community of Appendix A is to ensure that use of replaceable light source HID has developed HID bulbs that include sufficient technical information is lighting systems as an alternative to an additional transparent envelope available to replacement light source non-replaceable ones or to resistive which is a UV filter. Other innovative manufacturers so that they may element type filament lighting systems design solutions are being considered to manufacture identical replacement light is an issue of the marketplace, not of prevent UV emissions. The need for sources. NHTSA has decided that safety. high voltage shock safety is also requiring the Appendix B submitter to Advocates disagreed with NHTSA recognized by the SAE document. These provide all the information required in that this rulemaking would reduce costs are design and testing issues for the Appendix A is unnecessary if the both to manufacturers and consumers. manufacturer. NHTSA will monitor manufacturer provides rated laboratory In its view, NHTSA’s rationale for cost them and propose rulemaking if it life data supporting a light source and reduction is based upon the fact that appears to be required for health and ballast life of 2,000 hours or more. HID headlamps might not have to be safety. Ford recommended that Section I of replaced for the life of the vehicle and Appendix A be added to Appendix B consequently is not an adequate Effective Date (‘‘Filament Position Dimensions and evaluation of the costs and benefits Since the final rule does not impose Tolerances Using Either Direct Filament accruing to consumers from the any additional burden and is intended Dimensions or the Three Dimensional institution of HID headlamp systems. to afford an alternative to existing Filament Tolerance Box’’). Ford also NHTSA’s rationale for cost reduction requirements, it is hereby found that an recommended that Appendix B require is intended in the context of HID effective date earlier than 180 days after specification of the electrode position headlamp systems. In an integral beam issuance of the final rule is in the public dimensions and tolerances for light system using HIDs, all headlamp parts interest. The final rule (i.e., the sources using excited gas mixtures as must be replaced when a component amendments to the Code of Federal filaments. Ford stated that the mid-point fails or is damaged, even for something Regulations and the requirements of the electrode separation distance as simple as a cracked lens. Allowing specified therein) is effective 30 days would provide a comparable dimension HID’s to be used in replaceable bulb after its publication in the Federal ‘‘A’’ of Figure 8 to be utilized in headlamp systems would permit Register. Standard No. 108’s section S9 Deflection separability and the replacement of test for replaceable light sources. individual components at significant Rulemaking Analyses NHTSA concurs with this cost savings to the consumer. Repair Executive Order 12866 and DOT recommendation since, as Ford stated, costs for damaged HID headlamps ought Regulatory Policies and Procedures the mid-point of the electrode to be significantly reduced if lamp separation distance would provide a bodies, discharge bulbs and ballasts can This rulemaking action has not been comparable dimension ‘‘A’’ which is be individually serviced, instead of reviewed under Executive Order 12866. required to support the bulb deflection being replaced as part of a headlamp It has been determined that the test for replaceable light sources (S9). assembly. In addition, it is probable that rulemaking action is not significant NHTSA has accordingly amended minor damage would be repaired (such under Department of Transportation Section I of Appendix B as adopted. as a cracked lens) that could degrade regulatory policies and procedures. The Finally, the reader should note that headlamp performance if there is an effect of the rulemaking action is to the conforming amendments to economic incentive not to defer allow an alternative headlighting paragraphs 564.5(a) and (c) reflect the correction until required to do so, either system. It will not impose any agency’s recent amendment of by failing performance or state motor additional burden upon any person. The paragraph S7.7 of Standard No. 108 and vehicle inspection. final rule will reduce costs both to 564.5(a) and (c) to transfer HB type Advocates also argued that the manufacturers and consumers. Because replaceable light sources to Docket No. rulemaking was mischaracterized as ballasts will no longer have to be 93–11 (November 28, 1995; 60 FR ‘‘non-significant.’’ The rulemaking is integral with the light source, 58522). properly characterized under DOT manufacturers may use a simpler, less policies and procedures. The final rule expensive connector. Consumers may Comments in Opposition prescribes an alternative, optional, replace separate elements of an HID- IIHS opposed the rulemaking action headlighting system, and results in no replaceable light source headlamp because HID light sources are more additional costs or burdens upon any system as compared with the present expensive to replace than other light regulated person or upon the public. regulation which requires replacement sources and recommended that the Finally, Advocates disagreed with the of the whole unit. Impacts of the rule agency not permit the use of agency’s decision not to regulate are, therefore, so minimal as not to increasingly expensive lighting systems ultraviolet radiation (UV) and electric warrant preparation of a full regulatory on motor vehicles without conducting a shock, and recommended that a evaluation. parallel rulemaking to reinstate a no- supplementary NPRM be issued Regulatory Flexibility Act damage 5 mph bumper standard. addressing the possible threat to human Advocates, too, believed that the health and safety through UV emissions The agency has also considered the replacement cost for HID headlamp and high voltages. effects of this rulemaking action in systems ought to be a central There appears to be no current need relation to the Regulatory Flexibility consideration of this rulemaking. to do so, other than requiring a warning Act. I certify that this rulemaking action NHTSA notes that HID light sources are marking on the ballast. NHTSA would not have a significant economic 20500 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations effect upon a substantial number of PART 564ÐREPLACEABLE LIGHT hours, the manufacturer shall furnish small entities. Motor vehicle and SOURCE INFORMATION the information specified in either lighting equipment manufacturers are Appendix A or Appendix B of this part. generally not small businesses within 1. The authority citation for part 564 Information shall be furnished to: the meaning of the Regulatory continues to read as follows: Associate Administrator for Safety Flexibility Act. Further, small Authority: 49 U.S.C. 322, 30111, 30115, Performance Standards, National organizations and governmental 30117, 30166; delegation of authority at 49 Highway Traffic Safety Administration, jurisdictions will not be significantly CFR 1.50. 400 Seventh Street SW, Washington, affected as the price of new motor 2. Section 564.1 is revised to read as D.C. 20590. Attn: Replaceable Light vehicles will not be impacted. set forth below. Source Information Docket No. 93–11 Accordingly, no Regulatory Flexibility (unless the agency has already filed Analysis has been prepared. § 564.1 Scope. such information in Docket No. 93–11). This part requires the submission of (b) The manufacturer shall submit Executive Order 12612 (Federalism) dimensional, electrical specification, such information not later than 60 days This action has been analyzed in and marking/designation information, before it intends to begin the accordance with the principles and as specified in Appendix A and manufacture of the replaceable light criteria contained in Executive Order Appendix B of this part, for original source to which the information applies, 12612 on ‘‘Federalism.’’ It has been equipment replaceable light sources or to incorporate the light source into a determined that the rulemaking action used in motor vehicle headlighting headlamp or motor vehicle of its does not have sufficient federalism systems. manufacture. Each submission shall implications to warrant the preparation 3. Section 564.2 is revised to read as consist of one original set of information of a Federalism Assessment. set forth below. and 10 legible reproduced copies, all on 81⁄2 by 11-inch paper. National Environmental Policy Act § 564.2 Purposes. (c) The Associate Administrator The purposes of this part are achieved promptly reviews each submission and NHTSA has analyzed this rulemaking through its Appendices: informs the manufacturer not later than action for purposes of the National (a) The purposes of Appendix A of 30 days after its receipt whether the Environmental Policy Act. The this part are to ensure submission has been accepted. Upon rulemaking action will not have a (1) The availability to replacement acceptance, the Associate Administrator significant effect upon the environment light source manufacturers of the files the information in Docket No. 93– as it does not affect the present method manufacturing specifications of original 11. The Associate Administrator does of manufacturing motor vehicle lighting equipment light sources so that not accept any submission that does not equipment. replacement light sources are contain all the information specified in Civil Justice Reform interchangeable with original Appendix A or Appendix B of this part, equipment light sources and provide or whose accompanying information This rulemaking action will not have equivalent performance, and indicates that any new light source any retroactive effect. Under 49 U.S.C. (2) That redesigned or newly which is the subject of a submission is 30103, whenever a Federal motor developed light sources are designated interchangeable with any replaceable vehicle safety standard is in effect, a as distinct, different, and light source for which the agency has state may not adopt or maintain a safety noninterchangeable with previously previously filed information in Docket standard applicable to the same aspect existing light sources. No. 93–11. of performance which is not identical to (b) The purposes of Appendix B of (d) A manufacturer may request the Federal standard. Under 49 U.S.C. this part are to ensure modification of a light source for which 30163, a procedure is set forth for (1) That original equipment light information has previously been filed in judicial review of final rules sources are replaceable and that Docket No. 93–11, and the submission establishing, amending, or revoking replacement light sources provide shall be processed in the manner Federal motor vehicle safety standards. equivalent performance, and provided by § 564.5(c). A request for That section does not require (2) That redesignated or newly modification shall contain the submission of a petition for developed light sources are designated following: reconsideration or other administrative as distinct, different, and (1) All the information specified in proceedings before parties may file suit noninterchangeable with previously Appendix A or Appendix B of this part in court. existing light sources. that is relevant to the modification requested, Paperwork Reduction Act 4. Section 564.5 (a), (b), (c), (d) introductory text and (d)(1) are revised * * * * * The reporting and record keeping to read as set forth below. 5. Part 564 is amended by revising the requirement associated with part 564 heading for section I and adding § 564.5 Information filing; agency Paragraph D to Section I of Appendix A have been approved by the Office and processing of filings. Management and Budget in accordance to read as set forth below. (a) Each manufacturer of a motor with 44 U.S.C. chapter 35. The OMB Appendix A—Information to be vehicle, original equipment headlamp, control number is 2127- 0563. Submitted for Replaceable Light or original equipment headlamp Sources List of Subjects in 49 CFR Parts 564 and replaceable light source, which intends 571 to manufacture a replaceable light I. Filament or Discharge Arc Position source as original equipment or to Dimensions and Tolerances Using Imports, Motor vehicle safety, Motor incorporate a replaceable light source in Either Direct Filament or Discharge Arc vehicles. its headlamps or motor vehicles, shall Dimensions or the Three Dimensional In consideration of the foregoing, 49 furnish the information specified in Filament or Discharge Arc Tolerance CFR parts 564 and 571 are amended as Appendix A. If the rated laboratory life Box. follows: of the light source is not less than 2,000 * * * * * Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20501

D. For a light source using excited gas or discharge arc tolerance box relative to Ballast and Rated Life of the Light mixtures as a filament, necessary the bulb base centerline. Source/Ballast Combination. fiducial information and specifications 3. Transverse location of the filament A. Maximum power (in watts). including electrode position dimensions or discharge arc centerline or the B. Luminous Flux (in lumens). and tolerance information that provide filament or discharge arc tolerance box C. Rated laboratory life of the light similar location and characteristics relative to the bulb base centerline. source/ballast combination (not less information required by paragraphs A, 4. Filament or discharge arc tolerance than 2,000 hours). B, and C of this section I for light box dimensions, if used. V. Applicable to Light Sources that sources using a resistive type filament. C. If the replaceable light source has Operate With a Source Voltage Other both a lower beam and upper beam Than 12.8 Volts Direct Current, and * * * * * When a Proprietary Ballast Must Be 6. Part 564 is amended by revising filament or discharge arc, the Used With the Light Source. dimensional relationship between the Section IX of Appendix A to read as set A. Manufacturer’s part number for the two filament or discharge arc forth below. ballast. centerlines or the filament or discharge Appendix A—Information to be B. Any other characteristics necessary arc tolerance boxes may be provided for system operation. Submitted For Replaceable Light instead of referencing the upper beam Sources VI. Bulb Markings/Designation—ANSI filament or discharge arc centerline or Number, ECE Identifier, Manufacturer’s * * * * * filament or discharge arc tolerance box Part Number, Individual or in Any IX. All other information, dimensions to the bulb base centerline or reference Combination. or performance specifications necessary plane. VII. All other identification, for interchangeability, replaceability, or D. For a light source using excited gas dimensions or performance system test purposes not listed in mixtures as a filament, necessary specifications necessary for sections I through VIII. If a ballast is fiducial information and specifications replaceability or systems test not listed required for operation, a complete including electrode position in sections I through VI. listing of the requirements and dimensions, and tolerance information parameters between the light source and that provide similar location and PART 571ÐFEDERAL MOTOR ballast, and ballast and the vehicle shall characteristics information required by VEHICLE SAFETY STANDARDS also be provided. paragraphs A, B, and C of this section 7. Part 564 is amended by adding 1. The authority citation for part 571 I for light sources using a resistive type continues to read as follows: Appendix B to read as set forth below. filament. II. Bulb Base Interchangeability Authority: 49 U.S.C. 322, 30111, 30115, Appendix B—Information to be 30117, and 30166; delegation of authority at Submitted for Long Life Replaceable Dimensions and Tolerance. 49 CFR 1.50. Light Sources of Limited Definition A. Angular locations, diameters, key/ keyway sizes, and any other 2. Section 571.108 is amended by: I. Filament or Discharge Arc Position interchangeability dimensions for (a) adding a definition of ‘‘Filament’’ Dimensions and Tolerances Using indexing the bulb base in the bulb in alphabetical order to section S4, Either Direct Filament or Discharge Arc holder. deleting the definition of ‘‘Seasoning’’ Dimensions or the Three Dimensional B. Diameter, width, depth, and in Section S4, and revising the Filament Discharge Arc Tolerance Box. surface finish of seal groove, surface, or definition of ‘‘Replaceable light source’’ A. Lower beam filament or discharge other pertinent sealing features. in section S4 to read as set forth below, arc dimensions or filament or discharge (b) revising paragraph S7.7 (a), (b), (c), C. Diameter of the bulb base at the arc tolerance box dimensions and and (d), and adding new paragraphs interface of the base and its relation of these to the bulb base S7.7 (e), (f), and (g) to read as set forth perpendicular reference surface. reference plane and centerline. below, and 1. Axial location of the filament or D. Dimensions of features related to (c) revising section S8 to read as set discharge arc centerline or the filament retention of the bulb base in the bulb forth below: or discharge arc tolerance box relative to holder such as tabs, keys, keyways, § 571.108 Motor Vehicle Safety Standard the bulb base reference plane. surface, etc. III. Bulb Holder Interchangeability No. 108 Lamps, Reflective Devices, and 2. Vertical location of the filament or Associated Equipment. discharge arc centerline or the filament Dimensions and Tolerances. or discharge arc tolerance box relative to A. Mating angular locations, * * * * * diameters, key/keyway sizes, any other 54. * * * the bulb base centerline. Filament means that part of the light 3. Transverse location of the filament interchangeability dimensions for source or light emitting element(s), such or discharge arc centerline or the indexing the bulb base in the bulb as a resistive element, the excited filament or discharge arc tolerance box holder. portion of a specific mixture of gases relative to the bulb base centerline. B. Mating diameter, width, depth, and under pressure, or any part of other 4. Filament or discharge arc tolerance surface, or other pertinent sealing energy conversion sources, that box dimensions, if used. features. B. Upper beam filament or discharge C. Mating diameter of the bulb holder generates radiant energy which can be arc dimensions or the filament or at the interface of the bulb base aperture seen. discharge arc tolerance box dimensions and its perpendicular reference surface. * * * * * and relation of these to the bulb base D. Mating dimensions of features Replaceable light source means an reference plane and centerline. related to retention of the bulb base in assembly of a capsule, base, and 1. Axial location of the filament or the bulb holder such as tabs, keys, terminals that is designed to conform to discharge arc centerline or the filament keyways, surface, or any other the requirements of Appendix A or or discharge arc tolerance box relative to characteristics necessary for mating Appendix B of part 564 Replaceable the bulb base reference plane. dimensions. Light Source Information of this 2. Vertical location of the filament or IV. Electrical Specifications for Each Chapter. discharge arc centerline or the filament Light Source that Operates With a * * * * * 20502 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

S7.7 * * * Appendix B of part 564 of this chapter. voltage applied to the ballast input (a) If other than an HB Type, the light An airtight seal exists when no air terminals, the measurement of luminous source shall be marked with the bulb bubbles appear on the low pressure flux shall be made with the black cap marking designation specified for it in (connector) side after the light source installed, if so designed, and shall be compliance with Appendix A or has been immersed in water for one made with an opaque white colored Appendix B of part 564 of this chapter. minute while inserted in a cylindrical cover, except for the portion normally The base of each HB Type shall be aperture specified for the light source, located within the interior of the lamp marked with its HB Type designation. and subjected to an air pressure of housing. Each replaceable light source shall also 70kPa (10 P.S.I.G.) on the glass capsule (e) If a ballast is required for be marked with the symbol DOT and side. operation, each ballast shall bear the with a name or trademark in accordance (d) The measurement of maximum following permanent markings: with paragraph S7.2. power and luminous flux that is (1) Name or logo of ballast (b) The measurement of maximum submitted in compliance with section manufacturer; power and luminous flux that is VII of Appendix A of part 564 of this (2) Ballast part number or unique submitted in compliance with chapter, or section IV of Appendix B of identification; Appendix A or Appendix B of part 564 part 564 of this chapter, shall be made (3) Part number or other unique of this chapter shall be made in with the direct current test voltage identification of the light source for accordance with this paragraph. The regulated within one quarter of one which the ballast is designed; filament or discharge arc shall be percent. The test voltage shall be 12.8v. (4) Rated laboratory life of the light seasoned before measurement of either. The measurement of luminous flux shall source/ballast combination, if the Measurement shall be made with the be in accordance with the Illuminating information for the light source has been direct current test voltage regulated Engineering Society of North America, filed in Appendix B of part 564 of this within one quarter of one percent. The LM 45; IES Approved Method for chapter; test voltage shall be 12.8v. The Electrical and Photometric (5) A warning that ballast output measurement of luminous flux shall be Measurements of General Service voltage presents the potential for severe in accordance with the Illuminating Incandescent Filament Lamps (April electrical shock that could lead to Engineering Society of North America, 1980). The filament of a replaceable permanent injury or death; LM–45, IES Approved Method for light source shall be seasoned before (6) Ballast output power in watts and Electrical and Photometric such measurement. The white covers output voltage in rms volts AC or DC; Measurements of General Service are used to eliminate the likelihood of and Incandescent Filament Lamps (April incorrect lumens measurement that will (7) The symbol ‘DOT’.’’ 1980); shall be made with the black cap occur should the reflectance of the light (f) For light sources that use excited installed on Type HB1, Type HB2, Type source base and electrical connector be gas mixtures as a filament or discharge HB4, and Type HB5, and on any other low. arc, the ‘‘rated laboratory life’’ shall be replaceable light source so designed; (1) For a light source with a resistive determined in accordance with sections and shall be made with the electrical element type filament, seasoning of the 4.3 and 4.9 of SAE Recommended conductor and light source base light source shall be made in accordance Practice J2009 FEB93 Forward shrouded with an opaque white cover, with section 2.9 of SAE Standard J1383 Discharge Lighting Systems. except for the portion normally located APR85 Performance Requirements for (g) After the force deflection test within the interior of the lamp housing. Motor Vehicle Headlamps. The conducted in accordance with S9, the The measurement of luminous flux for measurement of luminous flux shall be permanent deflection of the glass the Types HB3 and HB4 shall be made made with the black cap installed on envelope shall not exceed 0.13 mm in with the base covered with a white Type HB1, Type HB2, Type HB4, and the direction of the applied force. cover as shown in the drawings for Type HB5 light sources, and on any * * * * * Types HB3 and HB4 filed in Docket No. other replaceable light source so S8 Tests and Procedures for Integral 93–11. (The white cover is used to designed, and shall be made with the Beam and Replaceable Bulb eliminate the likelihood of incorrect electrical conductor and light source Headlighting Systems. When tested in lumen measurement that will occur base shrouded with an opaque white accordance with the following should the reflectance of the light colored cover, except for the portion procedures, each integral beam source base and electrical connector be normally located within the interior of headlamp shall meet the requirements low). the lamp housing. The measurement of of paragraph S7.4, and each replaceable (c) The capsule, lead wires and/or luminous flux for Type HB3 and Type bulb headlamp shall meet the terminals, and seal on each Type HB1, HB4 shall be made with the base requirements of paragraph S7.5. Ballasts Type HB3, Type HB4, and Type HB5 covered with the white cover shown in required to operate specific gas mixture light source, and on any other the drawings for Types HB3 and HB4 light sources shall be included in the replaceable light source which uses a filed in Docket No. 93–11. tests specified in paragraphs S8.1 and seal, shall be installed in a pressure (2) For a light source using excited gas S8.4 though S8.7. chamber as shown in Figure 25 so as to mixtures as a filament or discharge arc, provide an airtight seal. The diameter of seasoning of the light source system, * * * * * the aperture in Figure 25 on a including any ballast required for its Issued on: April 25, 1996. replaceable light source (other than an operation, shall be made in accordance Ricardo Martinez, HB Type) shall be that dimension with section 4.0 of SAE Recommended Administrator. furnished for such light source in Practice J2009 FEB93 Discharge [FR Doc. 96–11113 Filed 5–06–96; 8:45 am] compliance with Appendix A or Forward Lighting Systems. With the test BILLING CODE 4910±59±P 20503

Proposed Rules Federal Register Vol. 61, No. 89

Tuesday, May 7, 1996

This section of the FEDERAL REGISTER would apply to a particular ‘‘multi- including the ages of the children who contains notices to the public of the proposed purpose’’ lighter. started the fires, the ages of the victims, issuance of rules and regulations. The This type of product is commonly the locations from which the children purpose of these notices is to give interested purchased for lighting charcoal or gas obtained the lighters, and physical persons an opportunity to participate in the grills and fireplaces. The particular descriptions of the products involved rule making prior to the adoption of the final rules. product referred to by the petitioner is (including identification of the a butane-fueled lighter with a handle, a manufacturers and models, if available); trigger for actuating the lighting 5. Ways in which the products could CONSUMER PRODUCT SAFETY mechanism and fuel flow, and a long be modified to be child resistant; COMMISSION nose from which the flame extends. The 6. Characteristics of the product that device has a ‘‘safety’’ that can be could or should not be used to define 16 CFR Part 1210 manually moved to the ‘‘off’’ position to which products might be subject to the block actuation of the trigger. If the requested rule; Petition CP 96±1 Requesting a Child- Commission grants the petition, the 7. Other information on the potential Resistance Standard for Multi-Purpose rulemaking would develop a generic costs and benefits of the requested rule; Lighters description of the product to be and regulated, in order to cover similar 8. Steps that have been taken by AGENCY: Consumer Product Safety products made by others. For the industry or others to reduce the risk of Commission. purposes of this notice, the product injuries from the product. ACTION: Petition for rulemaking. category will be referred to as ‘‘multi- Comments on the petition should be purpose lighters.’’ received in the Commission’s Office of SUMMARY: Judy L. Carr has petitioned The cigarette lighter safety standard the Secretary by July 8, 1996. Comments the Commission to begin a rulemaking requires that lighters subject to the should be captioned ‘‘Petition CP 96–1 proceeding to amend the Safety standard have child-resistant features to for Child-Resistant Multi-Purpose Standard for Cigarette Lighters, 16 CFR prevent operation by most children Lighters.’’ part 1210, so it would apply to a ‘‘multi- under age 5. The child-resistant Interested parties may obtain a copy purpose’’ lighter. The Commission mechanism must reset itself of the petition by writing or calling the solicits written comments concerning automatically after each operation of the Office of the Secretary, Consumer the petition from all interested parties. lighter’s ignition mechanism. 16 CFR Product Safety Commission, DATES: Comments on the petition 1210.3(b)(1). However, multi-purpose Washington, DC 20207; telephone (301) should be received in the Office of the lighters are currently excluded from the 504–0800. A copy of the petition is Secretary by July 8, 1996. cigarette lighter regulation. See 16 CFR available for inspection from 8:30 a.m. to 5 p.m., Monday through Friday, in ADDRESSES: Comments on the petition 1210.2(c). the Commission’s Public Reading Room, should be mailed to the Office of the The petition sets forth facts in the room 502, 4330 East-West Highway, Secretary, Consumer Product Safety form of petitioner’s personal knowledge of an incident involving her children. Bethesda Maryland 20814. Commission, Washington, DC 20207, Dated: April 29, 1996. telephone (301) 504–0800, or delivered Petitioner asserts that her children Sayde E. Dunn, to the Office of the Secretary, Consumer started a fire while playing with the Product Safety Commission, room 502, lighter, resulting in burns to a 4-year-old Secretary of the Commission. 4330 East-West Highway, Bethesda girl on over 60% of her body. The [FR Doc. 96–11121 Filed 5–6–96; 8:45 am] Maryland 20814. Comments should be petition also contains information BILLING CODE 6355±01±P captioned ‘‘Petition CP 96–1 for Child- concerning other incidents where young Resistant Multi-Purpose Lighters.’’ children started fires using a multi- Copies of the petition are available by purpose lighter. That information was DEPARTMENT OF THE TREASURY writing or calling the Office of the obtained by the petitioner through Secretary. discovery in litigation with the Internal Revenue Service product’s manufacturer. FOR FURTHER INFORMATION CONTACT: The Commission solicits comments 26 CFR Parts 1 and 301 Rockelle S. Hammond, Docket Control on the issues raised by the petition. The [IA±41±93] Specialist, Office of the Secretary, Commission is particularly interested in Consumer Product Safety Commission, comments on the following topics: RIN 1545±AS04 Washington, DC 20207; telephone: (301) 1. The types and numbers of multi- Automatic Extension of Time for Filing 504–0800 ext. 1232. purpose lighters currently sold to Individual Income Tax Returns; SUPPLEMENTARY INFORMATION: The consumers; Hearing Cancellation Commission has docketed 2. The manufacturers and distributors correspondence from Judy L. Carr as a of the product; AGENCY: Internal Revenue Service, petition for rulemaking under the 3. The number of persons injured or Treasury. Consumer Product Safety Act (‘‘CPSA’’). killed in fires started by children under ACTION: Cancellation of notice of public Ms. Carr asks that the Commission begin the age of 5 years using multi-purpose hearing on proposed regulations. a rulemaking proceeding to amend the lighters; Safety Standard for Cigarette Lighters, 4. The circumstances under which SUMMARY: This document provides 16 C.F.R. § 1210, so that the standard these injuries and deaths occur, notice of cancellation of a public 20504 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Proposed Rules hearing on proposed regulations that direct final rule without prior proposal 40 CFR Part 52 reflect the new procedures for obtaining because the Agency views this as a [IL±18±7±7024b; FRL±5436±2] an automatic extension of time to file an noncontroversial revision and individual income tax return. anticipates no adverse comments. A Approval and Promulgation of DATES: The public hearing originally detailed rationale for this approval is set Implementation Plan; Illinois scheduled for May 8, 1996, beginning at forth in the direct final rule. If no 10:00 a.m. is cancelled. adverse comments are received in AGENCY: Environmental Protection FOR FURTHER INFORMATION CONTACT: response to this proposed rule, no Agency. Michael Slaughter of the Regulations further activity is contemplated in ACTION: Proposed rule. Unit, Assistant Chief Counsel relation to this rule. If EPA receives SUMMARY: On October 21, 1993, the (Corporate), (202) 622–7180 (not a toll- adverse comments, the direct final rule Illinois Environmental Protection free number). will be withdrawn and all public comments received will be addressed in Agency (IEPA) submitted to the USEPA SUPPLEMENTARY INFORMATION: The a subsequent final rule based on this volatile organic compound (VOC) rules subject of the public hearing is proposed proposed rule. The EPA will not that were intended to satisfy part of the regulations under sections 6081 and institute a second comment period on requirements of section 182(b)(2) of the 6651 of the Internal Revenue Code. A this document. Any parties interested in Clean Air Act (Act) amendments of notice of proposed rulemaking by cross commenting on this action should do so 1990. Specifically, these rules provide reference to temporary regulations and at this time. control requirements for certain major notice of public hearing appearing in sources not covered by a Control DATES: Comments on this proposed rule the Federal Register for Thursday, Technique Guideline (CTG) document. January 4, 1996 (61 FR 338), announced must be received in writing by June 6, 1996. These non-CTG VOC rules apply to that a pubic hearing on the proposed sources in the East St. Louis ozone regulations would be held on ADDRESSES: Written comments on this nonattainment area which emit (at Wednesday, May 8, 1996, beginning at action should be addressed to: Daniel A. maximum capacity) 100 tons of VOC per 10:00 a.m., in the IRS Auditorium, 7400 Meer, Rulemaking Section (A–5–3), Air year. These rules therefore provide an Corridor, Internal Revenue Building, and Toxics Division, U.S. environmental benefit due to the 1111 Constitution Avenue NW., Environmental Protection Agency, imposition of control requirements on Washington, D.C. Region 9, 75 Hawthorne Street, San sources emitting greater than 100 tons of The public hearing scheduled for Francisco, CA 94105–3901. VOC per year that belong to certain Wednesday, May 8, 1996, is cancelled. Copies of the rule and EPA’s source categories. The USEPA proposes Cynthia E. Grigsby, evaluation report of the rule are to approve these VOC rules for major Chief, Regulations Unit, Assistant Chief available for public inspection at EPA’s non-CTG sources. This action lists the Counsel (Corporate). Region 9 office during normal business State implementation plan revision that [FR Doc. 96–11404 Filed 5–3–96; 8:45 am] hours. Copies of the submitted rule are USEPA is proposing to approve and BILLING CODE 4830±01±P also available for inspection at the provides an opportunity for public following locations: comment. A rationale for approving this Santa Barbara County Air Pollution request is presented in the final rules ENVIRONMENTAL PROTECTION Control District, 26 Castilian Drive, B– section of this Federal Register, where AGENCY 23, Goleta, CA 93117 USEPA is approving the revision California Air Resources Board, request as a direct final rule without 40 CFR Part 52 Stationary Source Division, Rule prior proposal because USEPA views [CA 095±0008b; FRL±5464±3] Evaluation Section, 2020 ‘‘L’’ Street, this as a noncontroversial revision and Sacramento, CA 95814. anticipates no adverse comments. If no Approval and Promulgation of State FOR FURTHER INFORMATION CONTACT: adverse comments are received in Implementation Plans; California State Christine Vineyard, Rulemaking Section response to that direct final rule, no Implementation Plan Revision, Santa (A–5–3), Air and Toxics Division, U.S. further activity is contemplated in Barbara County Air Pollution Control Environmental Protection Agency, relation to this proposed rule. If USEPA District Region 9, 75 Hawthorne Street, San receives adverse comments the direct final rule will be withdrawn. Any AGENCY: Environmental Protection Francisco, CA 94105–3901, Telephone: (415) 744–1197. parties interested in commenting on this Agency (EPA). document should do so at this time. The SUPPLEMENTARY INFORMATION: ACTION: Proposed rule. This final rule on this proposed action will document concerns Santa Barbara address all comments received. SUMMARY: EPA is proposing to approve County Air Pollution Control District a revision to the California State Rule 359, Flare and Thermal Oxidizers, DATES: Comments on this document Implementation Plan (SIP) which submitted to EPA on July 13, 1994 by must be received by June 6, 1996. concerns the control of volatile organic the California Air Resources Board. For ADDRESSES: Written comments should compound (VOC) emissions, oxides of further information, please see the be addressed to: J. Elmer Bortzer, Chief, nitrogen (NOX), and oxides of sulfur information provided in the Direct Final Regulatory Development Section, Air (SOX) from flare and thermal oxidizers. action which is located in the Rules Programs Branch (AR–18J), The intended effect of proposing Section of this Federal Register. Environmental Protection Agency, approval of this rule is to regulate Region 5, 77 West Jackson Boulevard, Authority: 42 U.S.C. 7401–7671q. emissions of VOC, NOX, and SOX in Chicago, Illinois 60604. accordance with the goals of the Clean Dated: April 18, 1996. Comments should be strictly limited Air Act, as amended in 1990 (CAA or Felicia Marcus, to the subject matter of this proposal. the Act). In the Final Rules Section of Regional Administrator. Copies of the State submittal and this Federal Register, the EPA is [FR Doc. 96–11207 Filed 5–6–96; 8:45 am] USEPA’s analysis of it are available for approving the state’s SIP revision as a BILLING CODE 6560±50±P inspection at: Regulation Development Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Proposed Rules 20505

Section, Air Programs Branch (AR–18J) addressing various issues relating to sent to the Commission’s contractor for Environmental Protection Agency, administration of the North American public service records duplication: ITS, Region 5, 77 West Jackson Boulevard, Numbering Plan and tentatively Inc., 2100 M Street, N.W., Suite 140, Chicago, Illinois 60604. concluding, regarding carrier Washington, D.C. 20037. Comments and FOR FURTHER INFORMATION CONTACT: identification codes (CICs), that the reply comments will be available for Steven Rosenthal, Air Programs Branch, industry’s plan to expand Feature Group public inspection during regular U.S. Environmental Protection Agency, D (FGD) CICs from three to four digits, business hours in the FCC Reference Region 5, (312) 886–6052, at the Chicago in the event of exhaust of the three digit Center, Room 239, 1919 M Street, N.W., address indicated above. codes, was reasonable to ensure that the Washington, D.C. 20554. Copies can demand for CICs could be met. SUPPLEMENTARY INFORMATION: For also be obtained from ITS at (202) 857– Administration of the North American additional information see the direct 3800. Numbering Plan, Notice of Proposed final rule which is published in the 5. We will continue to treat this Rulemaking, 9 FCC Rcd 2068 (1994) rules section of this Federal Register. proceeding as non-restricted for (NPRM)(59 FR 24103 (05/10/94)). The purposes of the Commission’s ex parte Dated: February 7, 1996. NPRM also tentatively concluded that rules. See generally 47 CFR §§ 1.1200– David A. Ullrich, the transition or permissive dialing 1.1216. For further information contact, Acting, Regional Administrator. period for the expansion, during which David Ward (202/418–2336), Elizabeth [FR Doc. 96–11203 Filed 5–6–96; 8:45 am] both three and four digit CICs would be Nightingale (202/418–2352), or Mary BILLING CODE 6560±50±P recognized, should last six years. The DeLuca (202/418–2334) of the Network pleading cycle in response to the NPRM Services Division, Common Carrier closed on June 30, 1994. Bureau. 2. The record on the NPRM is two FEDERAL COMMUNICATIONS Federal Communications Commission COMMISSION years old, and significant events have occurred since the record closed: (1) Geraldine Matise, 47 CFR Part 1 The assignment of exclusively four digit Chief, Network Services Division, Common FGD CICs has begun, and in turn the Carrier Bureau. [CC Docket No. 92±237; DA 96±678] transition period has begun; (2) there [FR Doc. 96–11438 Filed 5–6–96; 8:45 am] has been an unexpected increase in the BILLING CODE 6712±01±P Carrier Identification Codes demand for CICs, due to new uses for AGENCY: Federal Communications the codes recently discovered by the Commission. industry; (3) we now expect an even 47 CFR Part 73 ACTION: Proposed rule. greater demand for CICs, with the anticipated increase in carriers entering [MM Docket No. 96±100; RM±8789] SUMMARY: On April 30, 1996, the the market as a result of the Commission released a public notice Telecommunications Act of 1996, Radio Broadcasting Services; Amherst seeking further comments to the Pub.L. 104–104, 110 Stat. 56 (1996) and Lynchburg, VA (1996 Act); and (4) the local exchange Commission’s Notice of Proposed AGENCY: Federal Communications carriers are now obligated to provide Rulemaking (Administration of the Commission. North American Numbering Plan), CC dialing parity under Section 251 of the ACTION: Docket No. 92–237 specifically on the 1996 Act, see 47 U.S.C. 251(b)(3). Proposed rule. 3. We seek, therefore, to refresh the issue of the appropriate length of the SUMMARY: record in CC Docket No. 92–237 The Commission requests transition period for the expansion of comments on a petition by Greater carrier identification codes (CICs) from specifically on the issue of the appropriate length of the transition Lynchburg Stereo Broadcasters three to four digits. The intended effect proposing the allotment of Channel of this action is to seek further period. Commenters should limit their comments to updated factual 294A to Amherst, Virginia, and the comments because the record on the allotment Channel 229A to Lynchburg, NPRM is two years old, and significant information in light of the recent events described above. We ask that parties Virginia. Channels 294A and 229A can events have occurred since the record be allotted to Amherst and Lynchburg, closed. neither simply reiterate their previous comments nor raise any new issues, but respectively, in compliance with the DATES: Comments must be filed on or confine their discussion to how the Commission’s minimum distance before May 21, 1996, and reply length of the transition period has been separation requirements. Channel 294A comments must be filed on or before affected, if at all. can be allotted to Amherst with a site May 28, 1996. 4. Comments and reply comments in restriction of 12.8 kilometers (8.0 miles) ADDRESSES: Federal Communications response to this Notice should be no northeast to avoid short-spacing Commission, 1919 M Street, N.W., more than 10 pages, and otherwise in conflicts with the licensed site of Washington, DC 20554. compliance with Sections 1.415 and Station WLQE(FM), Channel 295A, FOR FURTHER INFORMATION CONTACT: 1.419 of the Commission’s rules. Bedford, Virginia, and with Station David Ward, (202) 418–2336, Elizabeth Comments must be filed on or before WPXX(FM)’s construction permit for Nightingale, (202) 418–2352, or Mary May 21, 1996, and reply comments must Channel 294A at Semora, North DeLuca, (202) 418–2334, all of the be filed on or before May 28, 1996. Carolina. The coordinates for Channel Common Carrier Bureau, Network Comments and reply comments must be 294A are 37–40–36 and 78–57–19. Services Division. sent to the Office of the Secretary, FCC, Channel 229A can be allotted to Lynchburg without a site restriction. SUPPLEMENTARY INFORMATION: 1919 M Street, N.W., Washington, D.C. 20554. Two copies should also be sent The coordinates for Channel 229A at Released: April 30, 1996. to the Network Services Division, Lynchburg are 37–24–49 and 79–08–33. 1. On April 4, 1994, the Commission Common Carrier Bureau, FCC, Room DATES: Comments must be filed on or adopted a Notice of Proposed 235, 2000 M Street, N.W., Washington, before June 24, 1996, and reply Rulemaking (CC Docket No. 92–237) D.C. 20554. One copy should also be comments on or before July 9, 1996. 20506 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Proposed Rules

ADDRESSES: Federal Communications Atmospheric Administration (NOAA), Proposed management measures for Commission, Washington, DC 20554. In Commerce. scup in Year 1 of management include: addition to filing comments with the ACTION: Notice of availability of an Dealer, charter/party (c/p) vessel, and FCC, interested parties should serve the amendment to a fishery management operator permits; moratorium vessel petitioner, or its counsel or consultant, plan and request for comments. permits for the directed commercial as follows: John F. Garziglia, Pepper & fishery; a requirement that permitted Corazzini, L.L.P., 1776 K Street, NW., SUMMARY: NMFS issues this document vessels may sell only to permitted Suite 200, Washington, DC 20006 to advise that the Mid-Atlantic Fishery dealers; mandatory reporting for (Counsel for petitioner). Management Council (Council) has permitted vessels and dealers; escape FOR FURTHER INFORMATION CONTACT: Pam submitted Amendment 8 to the Fishery vents on scup pots or traps; degradable Blumenthal, Mass Media Bureau, (202) Management Plan for the Summer hinges and fasteners in scup pots or 418–2180. Flounder and Scup Fisheries (FMP) for traps; and maximum size for rollers SUPPLEMENTARY INFORMATION: This is a Secretarial review and is requesting used in roller rig trawl gear; minimum comments from the public. Amendment synopsis of the Commission’s Notice of fish sizes for the commercial and 8 would initiate management measures Proposed Rule Making, MM Docket No. recreational fisheries; and minimum for the scup fishery. 96–100, adopted April 22, 1996, and codend mesh requirements when released May 1, 1996. The full text of DATES: Comments must be received on possessing more than a threshold level this Commission decision is available or before June 24, 1996. of scup on board. In Year 2 and beyond, for inspection and copying during ADDRESSES: Send comments to Dr. a coastwide quota would also be normal business hours in the FCC’s Andrew A. Rosenberg, Regional implemented with Federal commercial Reference Center (Room 239), 1919 M Director, National Marine Fisheries permit holders being prohibited from Street, NW., Washington, DC. The Service, Northeast Regional Office, One landing after the quota had been complete text of this decision may also Blackburn Drive, Gloucester, MA 01930- attained, as well as a framework to be purchased from the Commission’s 3799. Mark the outside of the envelope allow time/area closures in order to copy contractor, ITS, Inc., (202) 857– ‘‘Comments on Summer Flounder and reduce bycatch and prevent quota 3800, 2100 M Street, NW., Suite 140, Scup Plan.’’ Washington, DC 20037. overruns. The proposed amendment Copies of proposed Amendment 8, its also includes a framework measure to Provisions of the Regulatory Regulatory Impact Review (RIR) and the allow future adjustments to minimum Flexibility Act of 1980 do not apply to Initial Regulatory Flexibility Analysis fish sizes, mesh size, and the threshold this proceeding. contained within the RIR, and the Final level of fish on board that triggers the Members of the public should note Environmental Impact Statement are that from the time a Notice of Proposed available from David R. Keifer, mesh size, and to implement a Rule Making is issued until the matter Executive Director, Mid-Atlantic recreational possession limit and is no longer subject to Commission Fishery Management Council, Room season. consideration or court review, all ex 2115 Federal Building, 300 S. New NMFS disapproved six measures in parte contacts are prohibited in Street, Dover, DE 19904-6790. Amendment 8 before publishing this Commission proceedings, such as this FOR FURTHER INFORMATION CONTACT: notice of availability as authorized one, which involve channel allotments. Regina L. Spallone, Fishery Policy under section 304(a)(1)(A) of the See 47 CFR 1.1204(b) for rules Analyst, 508-281-9221. Magnuson Act. These disapproved governing permissible ex parte contacts. measures would: (1) Confer moratorium For information regarding proper SUPPLEMENTARY INFORMATION: The Magnuson Fishery Conservation and permit eligibility upon vessels that were filing procedures for comments, see 47 re-rigging on January 26, 1993, and land CFR 1.415 and 1.420. Management Act (16 U.S.C. 1801 et seq.) (Magnuson Act) requires that each scup prior to the implementation of the List of Subjects in 47 CFR Part 73 regional fishery management council FMP; (2) require vessels to keep scup Radio broadcasting. submit any fishery management plan or catches of less than 4,000 lb (1,814 kg) amendment it prepares to NMFS for (the level at which the minimum mesh Federal Communications Commission. review. The Magnuson Act also requires requirement is triggered) in 100–lb John A. Karousos, that NMFS, upon receiving the plan or boxes to enhance enforcement; (3) Chief, Allocations Branch, Policy and Rules amendment for review, immediately accept state dealer permits in lieu of the Division, Mass Media Bureau. make a preliminary evaluation of required Federal permit; (4) deny access [FR Doc. 96–11327 Filed 5–6–96; 8:45 am] whether the amendment is sufficient to to the exclusive economic zone to BILLING CODE 6712±01±F warrant continued review, and publish vessels from states that do not a document that the plan or amendment implement recreational measures is available for public review and equivalent to those specified in the DEPARTMENT OF COMMERCE comment. NMFS will consider the Federal plan; (5) use state regulations to public comments received during the define scup pots for the residents of that National Oceanic and Atmospheric comment period in determining state; and (6) establish annual Administration whether to approve the plan or recreational harvest limits and deduct amendment. catches in excess of those limits from 50 CFR Part 625 Amendment 8, if approved, would the limits for the following year. revise the Summer Flounder FMP to Day 1 for this amendment is April 26, [I.D. 042696A] institute management measures that 1996. Proposed regulations to would allow the scup (Stenotomus Summer Flounder and Scup Fishery; implement this amendment are Notice of Availability of Amendment 8 chrysops) resource to rebuild over a 7- year period. Scup are currently scheduled to be published within 15 AGENCY: National Marine Fisheries overexploited and at a low biomass days of this date. Service (NMFS), National Oceanic and level. Authority: 16 U.S.C. 1801 et seq. Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Proposed Rules 20507

Dated: May 1, 1996. Richard W. Surdi, Acting Director, Office of Fisheries Conservation and Management, National Marine Fisheries Service. [FR Doc. 96–11271 Filed 5–2–96; 11:10 am] BILLING CODE 3510±22±F 20508

Notices Federal Register Vol. 61, No. 89

Tuesday, May 7, 1996

This section of the FEDERAL REGISTER Please refer to Docket No. 96–022–1 charges paid by producers for ginning contains documents other than rules or when submitting your statements. services, the proportion of the crop proposed rules that are applicable to the This notice of meeting is given harvested by different harvesting public. Notices of hearings and investigations, pursuant to section 10 of the Federal technologies, and the average volume of committee meetings, agency decisions and Advisory Committee Act (Pub. L. 92– seed cotton needed to yield a standard rulings, delegations of authority, filing of 463). petitions and applications and agency 480-pound net-weight bale. Also, statements of organization and functions are Done in Washington, DC, this 2nd day of information is provided on the methods examples of documents appearing in this May 1996. of temporary seed cotton storage used in section. Terry L. Medley, each state. All required information is Acting Administrator, Animal and Plant collected from cotton gins on a simple Health Inspection Service. one-page questionnaire with a postage- DEPARTMENT OF AGRICULTURE [FR Doc. 96–11354 Filed 5–6–96; 8:45 am] paid return envelope enclosed. Estimate of Burden: Public reporting BILLING CODE 3410±34±P Animal and Plant Health Inspection burden for this collection of information Service is estimated to average 10 minutes per Economic Research Service response. [Docket No. 96±022±1] Respondents: Private owned or Notice of Intent To Extend a Currently cooperative cotton ginning facilities National Animal Damage Control Approved Information Collection located in 14 states. Advisory Committee; Meeting Estimated Number of Respondents: ACTION: Notice and request for 1,300. AGENCY: Animal and Plant Health comments. Inspection Service, USDA. Estimated Number of Responses per SUMMARY: In accordance with the Respondent: 1. ACTION: Notice of meeting. Paperwork Reduction Act of 1995, this Estimated Total Annual Burden on SUMMARY: We are giving notice of a notice announces the Economic Respondents: 217 hours. meeting of the National Animal Damage Research Service’s (ERS) intention to Copies of this information collection Control Advisory Committee. extend a currently approved can be obtained from Edward H. Glade, Jr., Commercial Agriculture Division, PLACE, DATES, AND TIME OF MEETING: The information collection in support of the ERS, (202) 219–1286. meeting will be held at the Holiday Inn, annual ERS report on cotton ginning 3836 East Mulberry, Fort Collins, CO, charges, harvesting practices, and Comments selected marketing costs. (970) 484–4660. The Committee will Comments are invited on: (a) whether meet on May 22, 1996, from 8 a.m. to DATES: Comments on this notice must be received by no later than July 11, 1996. the proposed collection of information 5 p.m. is necessary for the proper performance ADDITIONAL INFORMATION OR COMMENTS: FOR FURTHER INFORMATION CONTACT: Mr. of the functions of the agency, including Contact Fred Hoff, Associate Director, William Clay, Director, Operational whether the information will have Information Services Division, Support Staff, ADC, APHIS, Suite 6B02, practical utility; (b) the accuracy of the Economic Research Service, U.S. 4700 River Road Unit 87, Riverdale, MD agency’s estimate of the burden of the Department of Agriculture, 1301 New 20737–1234, (301) 734–7921. proposed collection of information York Avenue, NW., Washington, DC SUPPLEMENTARY INFORMATION: The including the validity of the 20005–4788, (202) 219–0511. National Animal Damage Control methodology and assumptions used; (c) Advisory Committee (Committee) SUPPLEMENTARY INFORMATION: ways to enhance the quality, utility, and advises the Secretary of Agriculture Title: Cotton Ginning Charges, clarity of the information to be concerning policies, program issues, Harvesting Practices and Selected collected; and (d) ways to minimize the and research needed to conduct the Marketing Costs. burden of the collection of information Animal Damage Control (ADC) program. OMB Number: 0536–0001. on those who are to respond, including The Committee also serves as a public Expiration Date of Approval: August through the use of appropriate forum enabling those affected by the 31, 1996. automated, electronic, mechanical, or ADC program to have a voice in the Type of Request: Intent to extend other technological collection program’s policies. currently approved information techniques or other forms of information The meeting will focus on research collection. technology. Comments may be sent to: and research priorities and will be open Abstract: Information on cotton Fred Hoff, Associate Director, to the public. However, due to time ginning charges and harvesting practices Information Services Division, constraints, the public will not be has been collected annually from U.S. Economic Research Service, U.S. allowed to participate in the cotton gins by the United States Department of Agriculture, 1301 New Committee’s discussions. Written Department of Agriculture (USDA) since York Avenue, NW., Washington, DC statements concerning meeting topics 1957. This information is used by the 20005–4788, (202) 219–0511. may be filed with the Committee before USDA and cotton industry participants All responses to this notice will be or after the meeting by sending them to as a primary source of data for planning summarized and included in the request Mr. William Clay at the address listed and analysis, and is not available in any for OMB approval. under FOR FURTHER INFORMATION form elsewhere. Results are shown for All comments will also become a CONTACT, or may be filed at the meeting. each cotton growing state detailing matter of public record. Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Notices 20509

Signed at Washington, DC., April 18, 1996. SUPPLEMENTARY INFORMATION: transport, store, or distribute meat and Susan Offutt, 1996 Farm Bill Provision poultry products in interstate commerce Administrator, Economic Research Service. after those products leave federally Section 918(b) of the Federal [FR Doc. 96–11298 Filed 5–6–96; 8:45 am] inspected establishments. The Agency Agriculture Improvement and Reform BILLING CODE 3410±18±M also registers meat or poultry brokers, Act of 1996 (PL 104–127; known as the renderers, manufacturers, or 1996 Farm Bill), which was signed into wholesalers, or others dealing in meat or Food Safety and Inspection Service law April 4, 1996, requires that, not poultry products that are not intended later than 90 days after enactment of the for human consumption. [Docket No. 96±012N] Farm Bill, or by July 3, 1996, the FSIS also maintains a comprehensive Secretary of Agriculture submit a report import inspection system. That system Interstate Shipment of State-inspected to Congress concerning the steps involves two major activities, the first Meat and Poultry Products necessary to achieve interstate shipment being oversight to ensure that exporting AGENCY: Food Safety and Inspection of meat and poultry products inspected countries have in place appropriate Service, USDA. under State programs that are ‘‘at least controls over their meat and poultry equal to’’ the Federal inspection ACTION: Notice; request for public inspection systems. Such countries (1) programs. Under the current Federal comments. must undergo a rigorous review process meat and poultry inspection laws, such before they can become eligible to SUMMARY: The 1996 Farm Bill requires products may be distributed solely export meat and poultry to the United the Secretary of Agriculture to submit to within the States in which they are States and (2) must receive periodic Congress, by July 3, 1996, prepared. reviews by FSIS to maintain such recommendations concerning the steps Background eligibility. Only plants operating under necessary to achieve interstate shipment FSIS approved national inspection of State-inspected meat and poultry Under the Federal Meat Inspection programs may qualify to export meat products. Under the Federal Meat Act (FMIA; 21 U.S.C. 601 et seq.) and and poultry products into the United Inspection Act (FMIA) and the Poultry the Poultry Products Inspection Act States. Meat and poultry products Products Inspection Act (PPIA), (PPIA; 21 U.S.C. 451 et seq.), FSIS is inspected under regional or provincial products inspected under State responsible for ensuring that meat, meat (i.e., state) inspection programs in programs ‘‘at least equal to’’ the Federal food, and poultry products distributed foreign countries are not eligible for inspection program may be distributed in interstate and foreign commerce are export to the United States. only within State boundaries. FSIS is safe, wholesome, not adulterated, and The second part of our import control requesting comment from the public on properly marked, labeled, and packaged. program is reinspection at the port of FSIS currently conducts antemortem which issues need to be addressed in entry, on a sample basis, of meat and and postmortem inspection of livestock responding to the Congressional poultry products as they enter the and poultry at slaughtering directive to make recommendations United States. Reinspection is a check to establishments, inspects further- concerning the interstate shipment of make sure that the foreign country’s processed meat and poultry products, State-inspected products. Possible inspection system is working. Seventy- inspects the sanitary conditions of issues include, but are not limited to: four import inspection personnel carry facilities where meat and poultry the safety, wholesomeness, and labeling out import reinspection at products are produced, and certifies of State-inspected products; recall approximately 160 official import U.S. products for export to foreign responsibilities; the administration of establishments. countries. FSIS investigates violations of The program for determining the State programs; the funding of Federal the inspection laws and violative eligibility of a foreign country to export oversight of State inspection programs; products are controlled through to the United States is based on a the funding of Federal assistance to detentions, civil seizures and voluntary systems approach. FSIS focuses on a State inspection programs; jurisdictional recalls. country’s overall inspection system as a complications; eligibility of such FSIS inspection is supported by means of ensuring consumer protection. products for export; and economic laboratory services in the fields of For instance, the Agency examines effects. The Agency plans to use these chemistry, microbiology, serology, and whether the country has the legal comments in formulating its pathology. An important laboratory- authority to impose requirements recommendations to Congress supported function is the National equivalent to those of the United States concerning State-inspected meat and Residue Program, which is designed to in areas such as sanitation and poultry products. help prevent the distribution in antemortem and postmortem inspection. DATES: Comments must be received on commerce of products containing illegal We examine the organizational structure or before June 6, 1996. concentrations of drugs, pesticides, and and staffing of its inspection program. ADDRESSES: Please send an original and other chemicals. FSIS also carries out We also conduct on-site reviews of the two copies of written comments to microbiological surveys to determine country’s inspection operations to Policy, Evaluation and Planning Staff, pathogen levels in raw meat and poultry evaluate the effectiveness of all aspects Attn: FSIS Docket Clerk, DOCKET No. and special microbiological studies and of the country’s program. 96–012N, Room 4352 South Building, surveillance of raw and processed Once a country becomes eligible, FSIS Food Safety and Inspection Service, products. An example of this is the conducts on-site reviews of its U.S. Department of Agriculture, testing of raw ground beef for the inspection system—usually one or more Washington, DC 20250. presence of E. coli O157:H7. times a year. The frequency of the FOR FURTHER INFORMATION CONTACT: Mr. FSIS operates a compliance program reviews is determined by a country’s Patrick Clerkin, Office of the aimed at ensuring that meat and poultry performance history, including previous Administrator, Food Safety and products in commerce are not plant reviews as well as product Inspection Service, U.S. Department of adulterated or misbranded. Through this reinspection at United States ports-of- Agriculture, Washington, DC 20250; program, the Agency exercises entry. If a country does not continue to Code (202) 205–0700. regulatory authority over businesses that operate an inspection system that 20510 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Notices complies with all FSIS requirements, it agreements on compliance-related Senate Committee on Agriculture and is removed from the list of countries matters. Under these agreements, FSIS Forestry (Senate Report No. 799, Nov. eligible to export to the United States. provides advice and technical assistance 21, 1967) expressed the view that some FSIS port-of-entry inspection is a to the States and funds up to 50 percent of the Federal standards for plant further check on the effectiveness of the of the cost of operating the State construction were unrealistic for some foreign country’s inspection system. It programs. Technical assistance small facilities, and encouraged USDA should be emphasized that reinspection activities include providing routine to consider basing the eligibility of an is carried out on products that have training of State inspection personnel at establishment for inspection on a already passed the foreign country’s the FSIS training center, providing combined evaluation of the operating inspection and been certified as meeting special training when new inspection procedures used by the establishment all U.S. requirements by the exporting systems are introduced, and helping and the building construction and country. State laboratories with problems physical facilities rather than upon a USDA import inspectors, using an requiring specialized expertise. Federal separate evaluation of these factors. If automated system, examine each lot of and State compliance personnel are the operating procedures were patterned product for general condition, proper trained together at the Federal Law so as to ensure the sanitary handling of labeling, and proper certification that Enforcement Training Center. products within the establishment and the products comply with all U.S. If, for any reason, a State fails to result in wholesome food, the regulatory requirements. In addition, develop or maintain and enforce establishment could be declared eligible based on a plant’s history of compliance effective inspection requirements that for Federal inspection. However, the with inspection requirements, the are ‘‘at least equal to’’ those of the Senate report emphasized that State nature of the product, and the size of the Federal program, USDA is required to requirements concerning shipment, the automated system designate the State for Federal wholesomeness, additives, labeling, and generates an inspection plan for each inspection. In designated States, all other regulations were not to be shipment that may identify additional establishments wishing to engage in compromised and had to be at least inspection tasks. The system applies a commercial activities requiring equal to Federal standards. The WPPA statistical sampling plan to each lot of inspection must apply to, and be accommodated small establishments by product presented for reinspection. approved by, FSIS for Federal authorizing USDA to exempt from Selected reinspection tasks could inspection. Designation may also be inspection establishments handling include detailed product examination; applied to individual establishments, 20,000 or fewer birds per year to be net weight verification; container the meat portion of a State program, the distributed solely within a State and by condition review; product label poultry portion, or the entire program. providing other exemptions. examination; species testing; and The FMIA and PPIA provisions for laboratory analyses for food chemistry, ‘‘equal-to’’ State inspection programs Growth and Development of the State- residues, and microbial contamination. were introduced by the 1967 Federal Cooperative Inspection In addition, import inspectors can take Wholesome Meat Act (WMA) and the Program additional samples whenever they 1968 Wholesome Poultry Products Act Following the enactment of the WMA suspect a problem. Daily reinspection (WPPA), which provided numerous results from all ports-of-entry are amendments to the Meat Inspection Act and the WPPA, many States opted for entered and stored in the system, of 1906 and the Poultry Products designation rather than fund the continuously updating the compliance Inspection Act of 1957. The necessary improvements to meet the histories for every foreign establishment amendments relating to State programs ‘‘equal-to’’ provisions of the Acts. From exporting to the United States. were prompted mainly by concern over 1971 to 1981, 23 States and four The FMIA (at 7 U.S.C. 661) and the the potential for distribution to the Territories were designated, primarily PPIA (at 7 U.S.C. 454) authorize the consumer of unwholesome or because of an inability to fund the Secretary of Agriculture to cooperate adulterated meat and poultry products programs. Four States chose to designate with the States in their development because of the absence of mandatory the poultry inspection branches of their and administration of meat and poultry inspection for products produced and programs, but retained the meat inspection programs that impose sold within States and localities. The inspection branches. USDA monitored requirements for mandatory antemortem original inspection laws had provided and reviewed the remaining 27 meat or and postmortem inspection and for mandatory Federal inspection of meat and poultry inspection programs, establishment sanitation, and products in interstate commerce but not and issued annual certifications that the requirements governing the preparation of products distributed solely within a programs were meeting the ‘‘equal-to’’ of further-processed products, that are State. At the time the WMA and WPPA requirements, as provided in the Acts. ‘‘at least equal to’’ the corresponding were passed, up to 25 percent of meat At present, 26 States have active Federal requirements. Products food products and 13 percent of poultry programs, 24 covering both meat and produced for human food and inspected products were produced without poultry inspection and 2 covering meat under ‘‘equal-to’’ State programs are Federal inspection coverage and, if only. limited by Federal law to intrastate inspected at all, were subject to widely During the 1970’s and 1980’s, the distribution. The Acts further authorize varying State and local standards. Federal approach to oversight of State the Secretary to cooperate with the The WMA and WPPA extended programs changed. Initially, FSIS States in administering compliance inspection coverage to thousands of provided training and guidance to assist programs under authorities that are ‘‘at establishments that had not been the States in applying the national least equal to’’ those provided by Title previously subject to Federal standards standards. Once the various State II of the FMIA (21 U.S.C. 641–645) or or ‘‘equal-to’’ State standards. Many of programs were able to demonstrate their Section 11 of the PPIA (21 U.S.C. 460). the establishments affected were smaller ability to administer and maintain FSIS has signed State-Federal facilities, some located in remote areas, ‘‘equal-to’’ programs without Federal cooperative agreements with States that which produced small quantities of guidance, FSIS changed its oversight have chosen to operate their own meat, meat food, or poultry products. In approach to one of monitoring and inspection programs; with separate presenting the WMA to the Senate, the verification. Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Notices 20511

In exercising its oversight function, or others dealing in meat or poultry OIG report and continues to work on FSIS conducts a system review of each products not intended for human improvements. State’s program. A system review consumption. The Interstate Shipment Issue involves a combined evaluation of the In addition, FSIS reviews State State’s requirements, operations, and procedures for reporting violations of As stated above, the FMIA and PPIA, enforcement of its meat and poultry State meat and poultry inspection laws, as amended by the WMA and the inspection laws. Each State maintaining initiating civil or criminal proceedings, WPPA, permit State-inspected products an inspection program must keep on file documenting breakdowns in the State to be shipped only in intrastate with USDA an up-to-date State inspection system, and ensuring that the commerce. The Acts would have to be Performance Plan (SPP) 1. The SPP, requirements for products not to be used amended before State-inspected which is required by an FSIS directive for human food are observed. products could be distributed in and not by regulation, documents the interstate commerce. existence of State laws, regulations, External Reviews of FSIS Oversight of In 1968, when Congress was funding, workforce, laboratories, and State Programs deliberating on the WPPA, the issue of other resources necessary for the State The efficacy of FSIS reviews of State interstate shipment of State poultry to operate an ‘‘equal-to’’ program. The ‘‘equal-to’’ status has been questioned products was debated at length. SPP also describes operations and periodically by external reviewers. In Congress rejected the proposal at that enforcement and how the State’s 1983, the General Accounting Office time. One reason was that allowing program works in the particular (GAO) audited USDA’s State oversight interstate shipment of State inspected environment of the State to ensure the procedures to determine whether FSIS poultry but not of red meat would create integrity of meat and poultry products certification of State ‘‘equal-to’’ status an unacceptable disparity between the intended for intrastate sale, conformed to the authorizing red meat and poultry inspection transportation, and use. The head of legislation. At the time, FSIS was basing programs. Congress left open the each State program must certify its certification on a quarterly review possibility of future consideration of the annually, in writing, that the program and rating of individual State-inspected interstate shipment issue after State meets ‘‘equal-to’’ requirements. establishments. GAO reported that meat and poultry inspection programs Teams of subject matter experts from USDA’s procedures were reasonable, had been firmly established. Congress FSIS conduct comprehensive reviews of but that the certification process lacked has considered amending the Acts to each State program every three-to-five uniformity across regions.2 GAO also allow the interstate shipment of State- years to verify adherence to SPP’s. noted that FSIS’s internal reviews did inspected products on a number of These reviews include random sampling not include regular assessments of State occasions since that time. of in-plant records and conditions. On program oversight. a continuing basis, FSIS field officials Issues to be Addressed In response to the GAO Report, FSIS work directly with State officials FSIS is requesting comments to be adopted a systems approach to providing advice and assistance. When used in preparing its report to Congress reviewing and evaluating State information from Federal officials in the on the interstate shipment issue as inspection programs. This change field or from other sources leads FSIS to required by the 1996 Farm Bill. FSIS is, resulted in the SPP requirement and the suspect deficiencies in State programs, regrettably, setting a short time limit for comprehensive reviews described FSIS conducts special reviews. submitting comments on this issue. above. FSIS chose this approach FSIS also exercises oversight of State However, the Farm Bill has set a 90-day because it provided for long-range compliance programs covering intrastate timeframe within which the Agency improvement, allowed States to assume commerce in meat and poultry products must submit its recommendations to more responsibility for program intended for human food or other Congress. purposes to ensure that these programs controls, broadened the scope of Federal are ‘‘at least equal to’’ the Federal oversight, and reduced Federal costs. In the view of FSIS, reporting on ‘‘the compliance program. FSIS verifies that steps necessary to achieve interstate In January 1994, the Department’s shipment’’ of State-inspected meat and the laws and regulations covering Office of Inspector General (OIG) compliance-related matters provide the poultry products, means, in part, reported, among other findings, that the addressing any issues arising from the State with authorities ‘‘at least equal to’’ Agency’s comprehensive reviews did those provided FSIS under the FMIA States’ Performance Plans. Concerning not address State program weaknesses these issues, commenters should and PPIA. FSIS also ensures that State in a number of areas, including agencies have resources adequate to identify the factors that might weigh for establishment sanitation, inspection or against permitting State-inspected carry out effective compliance scheduling, and procedures for programs, including qualified personnel products into interstate commerce and obtaining and handling laboratory what steps would be necessary to and adequate funding. State compliance samples.3 OIG also questioned the programs must be effective in address those factors. Commenters consistency of FSIS reviews from region should specify whether such factors are controlling products that are suspected to region and the adequacy of follow- of being adulterated or misbranded; in generic to all establishment types or ups to verify that State corrective action specific to slaughter establishments or enforcing recordkeeping requirements plans resulting from FSIS and providing for necessary access to to processing establishments. Some comprehensive reviews were carried specific aspects of the current SPP’s that establishment facilities, records, and out. FSIS has taken some steps to inventory; and in ensuring proper may warrant focus include: address the deficiencies noted in the • registration of meat or poultry brokers, Food safety • renderers, manufacturers, wholesalers, 2 A copy of the GAO report is on file in the FSIS Laboratory services and sampling Docket Room, Room 4352 South Agriculture • Facility and equipment 1 Members of the public who are interested in Building, Washington DC 20250. requirements reviewing a State’s SPP may contact Dr. Robert 3 A copy of the OIG report is on file in the FSIS • Fetzner, Director, Federal-State Relations Staff, at Docket Room, Room 4352 South Agriculture Labeling (202) 720–6313, to arrange an appointment. Building, Washington, DC 20250. • Recall procedures 20512 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Notices

Food Safety Issues: Current Inspection Administration of State Programs; ◆ If State-inspected products are System HACCP allowed in interstate commerce without reinspection, should any other measures • What additional steps, if any, Commenters are invited to consider what additional challenges might arise be considered? should be taken to provide full ◆ What resources would be necessary with the adoption and implementation assurance to the Nation’s consumers to carry out this inspection and from of ‘‘Pathogen Reduction; HACCP’’ that State-inspected products produced what source or sources should they be regulations proposed by the Agency. under the current system of inspection obtained? meet the same standards of food safety • Should interstate shipment of State- and wholesomeness as Federal or inspected products be authorized prior Export of State-inspected Product foreign-inspected products? to the States’ implementation of the ◆ Should State-inspected product be • What modifications to the SPP’s HACCP and pathogen reduction considered eligible for export? Why or would be necessary to provide for the regulations? ◆ why not? Under what conditions should monitoring of each State’s product in Should interstate shipment of export of State-inspected product be interstate commerce and for feedback to State-inspected products be authorized permitted? the State program? prior to FSIS’s evaluation of States’ ◆ How would technical problems operations under these adopted and trade issues be addressed? By Laboratory Services regulations? ◆ whom would these problems and issues • What improvements, if any, need to Is implementation of HACCP by be addressed? be made in State laboratory standards, the States a factor that should even be ◆ How would costs be addressed? sampling programs, or performance? considered? ◆ How would permitting the interstate shipment of State-inspected Establishment facility and equipment Interstate Relations ◆ product affect the acceptability to requirements What potential exists for States foreign countries and importers of U.S.- with conflicting standards to bring • What issues relating to export products generally? actions in Federal courts against firms establishments’ facilities, equipment, ◆ What agency or agencies would be located in other States or against the and sanitation need to be considered, responsible for certifying exports? States in which such firms are located? and how? ◆ If interstate shipment of State- Economic Effects Marking and Labeling; Product inspected meat and poultry products is The number of meat and poultry Identification allowed, should there be some provision establishments under State inspection for all consumers in the States and • How should State-inspected has been declining steadily in recent Territories to participate in the product be identified in commerce? years. For example, in 1986, 3,707 meat rulemaking proceedings in any one of Should special marking or labeling or poultry establishments were the States concerning such products? requirements be imposed? operating under State inspection in 27 ◆ Should a State be able to refuse States, but by 1994 there were 2,904 • What effect would permitting acceptance of another State’s products? such establishments in the same number interstate shipment of State-inspected If so, under what conditions? What of States. product have on the consumer’s ability avenues of recourse are available to the Permitting interstate sale and to determine whether a product or its State whose products are refused? What distribution of State-inspected products ingredients had been inspected and should be the FSIS role in such matters? could eliminate the incentives for would consumer confidence in the holding a Federal grant of inspection safety and quality of meat and poultry Acceptance of Product Inspected Under rather than a State grant. This change products be in any way affected? Equivalent Systems could affect the economies of the Recall Procedures Meat and poultry products prepared Federal and State programs if it resulted under foreign inspection systems that in significant shifts of establishments • Which agency or agencies should are equivalent to the Federal inspection between the Federal and State systems. exercise jurisdiction in cases involving system are allowed in interstate ◆ Should the ability of an the recall of a State-inspected product commerce. Foreign products that are establishment to choose between that may have been distributed to shipped to the United States have been Federal and State inspection be several other States? inspected and passed by a national restricted in any way? Why? • Could confusion over jurisdiction inspection program that meets standards ◆ Would States be induced to arise that could impede timely action to equivalent to those of this country’s compete with one another by marketing prevent the consumption of unsafe, Federal program. These programs are their inspection programs so as to adulterated products? subject to regular systems reviews by influence company decisions on where In addition to the issues arising from FSIS officials and, in addition, products to locate new or relocate existing meat the SPP’s, FSIS welcomes comments on imported to this country are subject to and poultry establishments? If so, what other issues that could have a bearing FSIS reinspection at points of entry would be the consequences for the on interstate shipment of State- before they are shipped in interstate States, for workers, for consumers? inspected products. These issues commerce. Reinspection is a ◆ What would be the implications or include State implementation of performance-based system; foreign consequences of allowing sales of State- HACCP-based inspection, interstate establishments with better compliance inspected product to Federal relations (including the refusal of one histories have their products establishments for further processing? State to accept the products of another reinspected less frequently. Would this affect decisions by domestic State), acceptance of product inspected ◆ Should the FSIS reinspection or foreign buyers? under equivalent systems, the export of system for imported products be ◆ What effect should permitting the State-inspected product, economic considered to provide the same level of interstate shipment of State-inspected effects, and the availability of resources assurance to the public that foreign- product have on establishments where for Federal assistance and oversight. inspected products receive? Federal inspection is performed by State Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Notices 20513 employees under Federal-State DEPARTMENT OF COMMERCE National Institute of Standards and cooperative agreements, pursuant to the Technology Talmadge-Aiken Act (7 U.S.C. 450)? Submission For OMB Review; Comment Request [Docket No. 960405101±6101±0] Availability of Resources for Federal RIN 0693±XX17 Oversight of and Assistance to State DOC has submitted to the Office of Programs Management and Budget (OMB) for Request To Identify Bodies Interested clearance the following proposal for in European Union (EU) Conformity A perennial question to be addressed collection of information under the Assessment Activities is the availability of resources for provisions of the Paperwork Reduction appropriate Federal oversight of State Act (44 U.S.C. chapter 35). AGENCY: National Institute of Standards programs to ensure that they are ‘‘at Agency: Bureau of the Census. and Technology, Commerce. least equal to’’ the Federal program. The Title: Survey of Public Attitudes ACTION: Request for public comment. Toward Administrative Records Use. resource question is sometimes Form Number(s): None –– Computer SUMMARY: This is to advise the public highlighted when the Agency’s assisted telephone interview. that the National Institute of Standards oversight of State programs undergoes Agency Approval Number: None. and Technology (NIST) is seeking input external evaluation by GAO or OIG, as Type of Request: New collection. regarding the identification of bodies discussed above. Nevertheless, the Burden: 300 hours. which can perform conformity Number of Respondents: 1,200. ability of the Agency to meet the need assessment of products that will Avg Hours Per Response: 15 minutes. for oversight of State programs will ultimately be entered into commerce in continue to be challenged by a scarcity Needs and Uses: The Census Bureau is testing the use of administrative the European union (EU). This of resources. This challenge is likely to information is requested in support of be far greater than it is at present if records in the Census 2000 to estimate the characteristics of nonresponding ongoing negotiations between the State-inspected products are permitted households, supplement data for United States and the EU for mutual to be shipped in interstate commerce, respondents that return incomplete recognition of product approvals for the volume and geographical forms, and estimate the number of pursuant to regulatory requirements. At distribution of State-inspected products persons missed within households. To the present time, we wish to identify could be greater than they are now, and enhance the usability of administrative and report to the EU those U.S. the handling of the products more record information, the Census Bureau organizations that believe that they are complicated. is also considering asking respondents qualified and are interested in certifying ◆ What is the best way to ensure the in the Census 2000 to provide their products as being in compliance with continued provision of resources Social Security number (SSN). This mandatory EU product safety requirements, that is, U.S.-based necessary for Federal oversight of State survey asks respondents to rate their organizations that desire to be programs? feelings and attitudes toward our use of recognized as equivalent to notified or ◆ administrative records and collecting What would be the effect on State SSN in the census. Knowledge about the competent body status under a U.S.-EU resources of allowing interstate public’s feelings and attitudes will help mutual recognition agreement (MRA), as shipment of State-inspected product, the Census Bureau form privacy policy, specified in the EU directives covering especially if large numbers of achieve effective promotion and telecommunications terminal establishments switch from Federal to outreach, and determine language for equipment (TTE) (EEC 89/263), State inspection? public use forms. electromagnetic compatibility (EMC) ◆ In addition, how should the Affected Public: Individuals. (89/336), low voltage electrical financing of State programs be Frequency: One time. equipment (LVD) (EEC 73/23), and Respondent’s Obligation: Voluntary. accomplished? Should USDA continue recreational craft (EEC 94/25). The areas OMB Desk Officer: Jerry Coffey, (202) of present interest are the following: (1) to pay up to half the cost of operating 395–7314. Product testing and quality assessment; a State program? Copies of the above information (2) quality system registration; (3) ◆ If a wider market were opened to collection proposal can be obtained by evaluation of technical construction State-inspected products, would sales calling or writing Linda Engelmeier, files (specific to the EMC directive); and volumes rise and would State Acting DOC Forms Clearance Officer, (4) product certification. Copies of the economies be better able to support a (202) 482–3272, Department of pertinent EU directives and related lists larger share of program operations? Commerce, Room 5312, 14th and of reference standards are available at Constitution Avenue, NW, Washington, the U.S. Department of Commerce, The foregoing list of issues is not DC 20230. intended to be inclusive; FSIS Room 3042, Herbert C. Hoover Building, Written comments and 14th and Constitution Avenue, recognizes that commenters may suggest recommendations for the proposed other issues and provide comments Washington, D.C., or NIST, building information collection should be sent 820, Room 164, Gaithersburg, Maryland. regarding them. FSIS welcomes within 30 days of publication of this Organizations are invited to inform comments on other issues related to notice to Jerry Coffey, OMB Desk NIST of their interest in carrying out interstate shipment of meat and poultry Officer, Room 10201, New Executive any of the activities listed above under from State-inspected establishments. Office Building, Washington, DC 20503. specific EU directives, indicating the Done, at Washington, D.C., on: May 3, Dated: April 29, 1996. scope of their claimed competence and 1996. Linda Engelmeier, identifying specific standards, test Michael R. Taylor, Acting Departmental Forms Clearance methods, etc. Organizations should note Acting Under Secretary for Food Safety. Officer, Office of Management and current accreditation by a recognized Organization. [FR Doc. 96–11456 Filed 5–3–96; 1:40 pm] national, regional or international [FR Doc. 96–11259 Filed 5–6–96; 8:45 am] accreditation body to a recognized or BILLING CODE 3510±12±M BILLING CODE 3510±07±F international standard and, if possible, 20514 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Notices provide information demonstrating that technical competence pursuant to a FPC (P500B) requests modification 4 they actively engaged in conformity U.S.-EU MRA. to permit 822 for an increase in their assessment procedures related to Interested persons should respond in annual take of ESA-listed species relevant EU directives. This may writing to the above address. All associated with an additional scientific include subcontractor relationships comments submitted in response to this research/monitoring activity, an with EU notified or competent bodies. notice will become part of the public increase in the number of outmigrating Based on responses to this notice, record and will be available for juvenile salmonids in 1996, and NIST will compile a list of interested inspection and copying at the U.S. recognition of an ESA-listed adult organizations. This list will be provided Department of Commerce Central salmon incidental take. Permit 822 to European Commission officials to Reference and Records and Inspection authorizes an annual take of juvenile, illustrate the types of organizations that Facility, Room 6020, Herbert C. Hoover threatened, naturally-produced and may be qualified and subsequently Building, 14th and Constitution artificially-propagated, Snake River considered for U.S. designated Avenue, Washington, D.C. 20230. spring/summer chinook salmon conformity assessment body status. It is Dated: April 30, 1996. (Oncorhynchus tshawytscha); juvenile, emphasized that organizations do not Samuel Kramer, threatened, Snake River fall chinook automatically qualify as designated Associate Director. salmon (Oncorhynchus tshawytscha); conformity assessment bodies simply by [FR Doc. 96–11288 Filed 5–6–96; 8:45 am] and juvenile, endangered, Snake River responding to this notice. Formal sockeye salmon (Oncorhynchus nerka) application and processing under BILLING CODE 3510±13±M associated with scientific research/ NVCASE or equivalent program will be monitoring activities at upstream required before designated status can be National Oceanic and Atmospheric locations and at the hydropower dams granted. (OMB Control No. 0693–0019). Administration on the Snake and Columbia Rivers in DATES: Comments on this request must the Pacific Northwest. be received by June 6, 1996. [I.D. 042996D] FPC requests an increase in the ADDRESSES: Comments should be Endangered Species; Permits number of juvenile, ESA-listed, submitted in writing to Dr. Belinda L. naturally-produced and artificially- Collins, Director, Office of Standards AGENCY: National Marine Fisheries propagated, Snake River spring/summer Services, National Institute of Standards Service (NMFS), National Oceanic and chinook salmon associated with the and Technology, Building 820, room Atmospheric Administration (NOAA), operation of a second airlift sampler at 282, Gaithersburg, Maryland 20899, by Commerce. fax at 301–963–2871 or by e-mail to ACTION: Receipt of an application for John Day Dam during the 1996 juvenile [email protected]. modification 4 to scientific research/ outmigration. FPC requests an increase monitoring permit 822 (P500B). in the number of juvenile, ESA-listed, FOR FURTHER INFORMATION CONTACT: Snake River sockeye salmon to be Dr. Belinda L. Collins, in writing at SUMMARY: Notice is hereby given that captured and handled, and an increase NIST, Building 820, room 282, the Fish Passage Center at Portland, OR in the resulting indirect mortality of Gaithersburg, Maryland 20899, by (FPC) has applied in due form for a these fish, associated with an increase telephone at 301–975–4000, by fax at modification to a permit to take in the estimate of the number of ESA- 301–963–2871 or by e-mail to endangered and threatened species for listed salmon juveniles expected to [email protected]. the purpose of scientific research/ outmigrate in 1996. In addition, FPC SUPPLEMENTARY INFORMATION: The U.S. monitoring. requests an incidental take of adult and Government is currently engaged in DATES: Written comments or requests for jack, ESA-listed, Snake River spring/ negotiations with the EU for the purpose a public hearing on this application summer chinook salmon associated of entering into a Mutual Recognition must be received on or before June 6, with fallbacks through the juvenile Agreement (MRA) regarding the 1996. bypass systems at Bonneville and John acceptance of each other’s testing and ADDRESSES: The application and related Day Dams on the Columbia River. FPC certification programs in regulated documents are available for review in also requests a modification of their product areas. Under the National the following offices, by appointment: sampling protocol for monitoring Technology Transfer and Advancement Office of Protected Resources, F/PR8, juvenile salmonids for symptoms of gas Act of 1995 (P.L. 104–113), signed NMFS, 1315 East-West Highway, Silver bubble trauma (GBT). An additional March 7, 1996, NIST is designated as Spring, MD 20910–3226 (301–713– take of ESA-listed species is not the federal agency with responsibility 1401); and requested for the modified GBT for coordinating accreditation activities. Environmental and Technical sampling protocol. Modification 4 is NIST also operates the National Services Division, 525 NE Oregon requested for the duration of the permit. voluntary Conformity Assessment Street, Suite 500, Portland, OR 97232– Permit 822 expires on December 31, System Evaluation (NVCASE) program 4169 (503–230–5400). 1997. as a means of providing U.S. domestic Written comments or requests for a entities with a U.S. Government public hearing should be submitted to Those individuals requesting a ‘‘assurance of competency’’ to facilitate the Chief, Endangered Species Division, hearing (see ADDRESSES) should set out the acceptance of test data or product Office of Protected Resources. the specific reasons why a hearing on certifications issued in this country by SUPPLEMENTARY INFORMATION: FPC this application would be appropriate. governments of other countries on the requests a modification to a permit The holding of such hearing is at the same basis as test data or product under the authority of section 10 of the discretion of the Assistant certification issued in the other country. Endangered Species Act of 1973 (ESA) Administrator for Fisheries, NOAA. All This notice is a solicitation of interest (16 U.S.C. 1531-1543) and the NMFS statements and opinions contained in on the part of U.S. conformity regulations governing ESA-listed fish this application summary are those of assessment entities in obtaining U.S. and wildlife permits (50 CFR parts 217- the applicant and do not necessarily government recognition of their 227). reflect the views of NMFS. Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Notices 20515

Dated: April 29, 1996. spawning, rearing, and migratory research to include the Salmon River Margaret Lorenz, requirements of fall chinook salmon in subbasin, an area previously Acting Chief, Endangered Species Division, the Columbia River Basin. Modification unspecified for this research activity. Office of Protected Resources, National 5 authorizes an increase in the annual Notification has been received that SBT Marine Fisheries Service. take of ESA-listed species in association would like to withdraw the request for [FR Doc. 96–11264 Filed 5–6–96; 8:45 am] with three additional scientific research modification 3 to permit 849. Since the BILLING CODE 3510±22±F activities. NBS will evaluate the extent, target species of the proposed expanded seasonality, and size selectivity of research area is bull trout, a non-listed predation on subyearling fall chinook species, and there is a possibility of an [I.D. 042996C] salmon; estimate food availability and incidental take of an ESA-listed species Endangered Species; Permits growth of subyearling fall chinook associated with the research, SBT will salmon in nearshore rearing habitats for submit an incidental take permit AGENCY: National Marine Fisheries eventual use in a bioenergetics model; application. Service (NMFS), National Oceanic and and relate juvenile fall chinook salmon Issuance of the modifications, as Atmospheric Administration (NOAA), survival to physiological development. required by the ESA, was based on a Commerce. Modification 5 is valid for the duration finding that such actions: (1) Were ACTION: Issuance of modification 5 to of the permit. Permit 817 expires on requested in good faith, (2) will not permit 817 (P45K), modification 1 to December 31, 1996. operate to the disadvantage of the ESA- permit 956 (P45S), and receipt of a Notice was published on February 29, listed species that are the subject of the notification of withdrawal of the request 1996 (61 FR 7776) that an application permits, and (3) is consistent with the for modification 3 to permit 849 (P510). had been filed by NBS (P45S) for purposes and policies set forth in modification 1 to scientific research section 2 of the ESA and the NMFS SUMMARY: Notice is hereby given that permit 956. Modification 1 to permit regulations governing ESA-listed NMFS has issued modifications to 956 was issued on April 23, 1996. species permits. permits that authorize takes of Permit 956 authorizes a take of juvenile, Dated: April 29, 1996. Endangered Species Act-listed species ESA-listed, Snake River spring/summer for the purpose of scientific research, chinook salmon (Oncorhynchus Margaret Lorenz, subject to certain conditions set forth tshawytscha) associated with a study Acting Chief, Endangered Species Division, therein, to the National Biological designed to provide managers with data Office of Protected Resources, National Marine Fisheries Service. Service at Cook, WA (NBS) and has on the distribution, abundance, received notification of the withdrawal movement, and habitat use of [FR Doc. 96–11265 Filed 5–6–96; 8:45 am] of a modification request from the anadromous fish that migrate through BILLING CODE 3510±22±P Shoshone-Bannock Tribes at Fort Hall, Lower Granite Reservoir on the Snake ID (SBT). River in WA. For modification 1, NBS COMMODITY FUTURES TRADING ADDRESSES: The applications and is authorized to collect juvenile fish, a related documents are available for portion of which will be ESA-listed COMMISSION juveniles, with a purse seine in Lower review in the following offices, by Proposed Collection; Comment appointment: Granite pool to obtain the maximum sample size needed for annual radio tag Request for Extension of Two Office of Protected Resources, F/PR8, transmitter research. NBS will apply Currently Approved Information NMFS, 1315 East-West Highway, radio transmitter tags by surgical Collections; 3038±0021 and 3038±0023 Silver Spring, MD 20910–3226 (301– implantation and transport the ESA- 713–1401); and AGENCY: Commodity Futures Trading listed juvenile fish from the point of Commission. Environmental and Technical Services acquisition to an upstream release site. Division, 525 NE Oregon Street, Suite NBS will use radio-tagged fish to ACTION: Notice. 500, Portland, OR 97232–4169 (503– evaluate the operation of a surface 230–5400). SUMMARY: In accordance with the collector prototype in the forebay of Paperwork Reduction Act of 1995, (Pub. SUPPLEMENTARY INFORMATION: The Lower Granite Dam. Also, NBS will modifications to permits were issued L. 104–13) this notice announces that capture, handle, and release ESA-listed the Commodity Futures Trading under the authority of section 10 of the juvenile fish while using a mid-water Endangered Species Act of 1973 (ESA) Commission intends to submit to the trawl for species verification of Office of Management and Budget (16 U.S.C. 1531–1543) and the NMFS hydroacoustic surveys. Modification 1 is regulations governing ESA-listed fish requests for the extension of two valid for the duration of the permit. currently approved information and wildlife permits (50 CFR parts 217– Permit 956 expires on September 30, 222). collections which expire on June 30, 1999. 1996. These collections are: Notice was published on February 29, Notice was published on March 5, 1996 (61 FR 7776) that an application 1996 (61 FR 8568) that an application 3038–0021—Regulations Governing had been filed by NBS (P45K) for had been filed by SBT (P510) for Bankruptcies of Commodity Brokers modification 5 to scientific research modification 3 to scientific research 3038–0023—Regulations and Forms Relating permit 817. Modification 5 to permit permit 849. Permit 849 authorizes a take to Registration with the Commission 817 was issued on April 16, 1996. of adult and juvenile, threatened, Snake ADDRESSES: Persons wishing to Permit 817 authorizes a direct take of River spring/summer chinook salmon comment on these information juvenile, threatened, Snake River fall (Oncorhynchus tshawytscha) associated collections should contact Jeff Hill, chinook salmon (Oncorhynchus with stock assessment and fish Office of Management and Budget, tshawytscha) and an indirect take of condition surveys in the Salmon River Room 3228, NEOB, Washington, DC juvenile, threatened, Snake River subbasin and the pond series of Yankee 20502, (202) 395–7340. Copies of the spring/summer chinook salmon Fork, Salmon River in Idaho. For submission are available from Joe F. (Oncorhynchus tshawytscha) associated modification 3, SBT requested to Mink, Agency Clearance Officer, (202) with scientific research on the expand the area of their electrofishing 418–5170. 20516 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Notices

Title: Regulations Governing Action: Extension. Estimated Annual Burden: 801 total Bankruptcies of Commodity Brokers. Respondents: Futures Commission hours. Control Number: 3038–0021. Merchants.

Estimated Est. avg. Respondents number of re- Annual re- hours per re- spondents sponses sponse

Futures Commission Merchants ...... 802 16,002 0.35

Title: Regulations and Forms Relating Control Number: 3038–0023. Estimated Annual Burden: 18,975 to Registration with the Commission. Action: Extension. hours. Respondents: Registrants.

Estimated Est. avg. Respondents number of re- Annual re- hours per re- spondents sponses sponse

Registrants ...... 60,980 4 1.13

Issued in Washington, DC on May 2, 1996. regional area surrounding the Evans SUMMARY: The U.S. Army Corps of Jean A. Webb, Subpost. Engineers, Sacramento District, on Secretary to the Commission. DATES: The Army will hold a public behalf of the Department of the Army [FR Doc. 96–11301 Filed 5–6–96; 8:45 am] review meeting for this Draft EIS. The identifies as surplus the real property BILLING CODE 6351±01±M location and date of the meeting, to be located at Rio Vista Army Reserve scheduled during May 1996, will be Facility, Rio Vista, California. Rio Vista announced in local news media. Copies Army Reserve Facility is located in of the DEIS are available for review at Sonoma County, on the Sacramento DEPARTMENT OF DEFENSE the Wall Township Public Library, 2700 River approximately 20 miles southeast Allaire Road, Wall, New Jersey 07719. of Travis Air Force Base, between Lodi Department of the Army Oral and written comments may be and Fairfield, California. The Facility is comprised of 27.8 acres and includes 22 Draft Environmental Impact Statement presented at the public meeting. Comments and suggestions received temporary wood-frame buildings and (EIS) on the Disposal and Reuse of the miscellaneous improvements. The Evans Subpost Fort Monmouth, NJ within 45 days of the publication of the Environmental Protection Agency’s property is being conveyed to the City AGENCY: Department of the Army, DOD. Notice of Availability for this action will of Rio Vista as authorized by the National Defense Authorizations Act of ACTION: Notice of availability. be addressed in the Final Environmental Impact Statement. 1995, Section 2834. FOR FURTHER INFORMATION CONTACT: SUMMARY: The proposed action ADDRESSES: Copies of the Draft evaluated by this EIS is the disposal of Environmental Impact Statement can be Ms. Karen Fisbeck, Army Corps of the Evans Subpost Fort Monmouth, New obtained by writing to Dr. Susan Rees, Engineers, Real Estate Division, 1325 J Jersey, in accordance with the Defense U.S. Army Engineer District, ATTN: Street, Sacramento, CA 91814–2922, Base Closure and Realignment Act of CESAM–PD–E, P.O. Box 2288, Mobile, telephone (916) 557–6844, fax (916) 1990, Public Law 101–510. The Draft Alabama 36628–0001 or by telephone at 557–7855; or Mr. Norman Repanich, EIS addresses the environmental (334) 694–4141 or telefax (334) 690– City Hall, P.O. Box 745, Rio Vista, CA consequences of the disposal and 2424. 94571, telephone (707) 374–6451. subsequent reuse of the 215 acres. Three SUPPLEMENTARY INFORMATION: None. Dated: April 30, 1996. alternative methods of disposal are Gregory D. Showalter, Raymond J. Fatz, analyzed: Encumbered Disposal, Army Federal Register Liaison Officer. Acting Deputy Assistant Secretary of the Unencumbered Disposal and retention [FR Doc. 96–11286 Filed 5–6–96; 8:45 am] of the property in a caretaker status (i.e., Army, (Environmental, Safety, and BILLING CODE 3710±EZ±M the No Action Alternative). The Occupational Health) OASA (IL&E). Encumbered Disposal Alternative [FR Doc. 96–11312 Filed 5–6–96; 8:45 am] addresses natural or man-made BILLING CODE 3710±08±M encumbrances to the future reuse. The DEPARTMENT OF EDUCATION Unencumbered Disposal Alternative Corps of Engineers Notice of Proposed Information evaluates the potential to remove Collection Requests encumbrances, thereby allowing the Notice of Availability of Surplus Land property to be disposed of with fewer or and Buildings as Prescribed by Public AGENCY: Department of Education. no Army imposed restrictions on future Law 101±510 and Required by Public ACTION: Notice of proposed information use. The impacts of reuse are evaluated Law 100±526, Located at Rio Vista collection requests. in terms of land use intensities. Army Reserve Facility, Rio Vista, CA A scoping meeting was held at the SUMMARY: The Acting Director, theater located on the Main Post of Fort AGENCY: U.S. Army Corps of Engineers, Information Resources Group, invites Monmouth on December 8, 1994. Public DOD. comments on the proposed information notices requesting input and comments collection requests as required by the ACTION: Notice of availability. from the public were issued in the Paperwork Reduction Act of 1995. Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Notices 20517

DATES: An emergency review has been Departmental review of the information collection requests as required by the requested in accordance with the Act collection. Each proposed information Paperwork Reduction Act of 1995. (44 U.S.C. Chapter 3507 (j)), since collection, grouped by office, contains DATES: public harm is reasonably likely to the following: (1) Type of review Interested persons are invited to result if normal clearance procedures requested, e.g., new, revision, extension, submit comments on or before June 6, are followed. Approval by the Office of existing or reinstatement; (2) Title; (3) 1996. Management and Budget (OMB) has Summary of the collection; (4) ADDRESSES: Written comments should been requested by May 17, 1996. A Description of the need for, and be addressed to the Office of regular clearance process is also proposed use of, the information; (5) Information and Regulatory Affairs, beginning. Interested persons are Respondents and frequency of Attention: Wendy Taylor, Desk Officer, invited to submit comments on or before collection; and (6) Reporting and/or Department of Education, Office of July 8, 1996. Recordkeeping burden. ED invites Management and Budget, 725 17th ADDRESSES: Written comments public comment at the address specified Street, NW., Room 10235, New regarding the emergency review should above. Copies of the requests are Executive Office Building, Washington, be addressed to the Office of available from Patrick J. Sherrill at the DC 20503. Requests for copies of the Information and Regulatory Affairs, address specified above. Attention: Wendy Taylor, Desk Officer: The Department of Education is proposed information collection Department of Education, Office of especially interested in public comment requests should be addressed to Patrick Management and Budget, 725 17th addressing the following issues: (1) is J. Sherrill, Department of Education, 600 Street, NW., Room 10235, New this collection necessary to the proper Independence Avenue, S.W., Room Executive Office Building, Washington, functions of the Department, (2) will 5624, Regional Office Building 3, D.C. 20503. Requests for copies of the this information be processed and used Washington, DC 20202–4651. proposed information collection request in a timely manner, (3) is the estimate FOR FURTHER INFORMATION CONTACT: should be addressed to Patrick J. of burden accurate, (4) how might the Patrick J. Sherrill (202) 708–8196. Sherrill, Department of Education, 7th & Department enhance the quality, utility, Individuals who use a D Streets, S.W., Room 5624, Regional and clarity of the information to be telecommunications device for the deaf Office Building 3, Washington, D.C. collected, and (5) how might the (TDD) may call the Federal Information 20202–4651. Written comments Department minimize the burden of this Relay Service (FIRS) at 1–800–877–8339 regarding the regular clearance and collection on the respondents, including between 8 a.m. and 8 p.m., Eastern time, requests for copies of the proposed through the use of information information collection requests should technology. Monday through Friday. be addressed to Patrick J. Sherrill, Dated: May 1, 1996. SUPPLEMENTARY INFORMATION: Section Department of Education, 600 Arthur F. Chantker, 3506 of the Paperwork Reduction Act of Independence Avenue, S.W., Room Acting Director, Information Resources 1995 (44 U. S. C. Chapter 35) requires 5624, Regional Office Building 3, Group. that the Office of Management and Washington, DC 20202–4651, or should Budget (OMB) provide interested be electronic mailed to the internet Office of Postsecondary Education Federal agencies and the public an early # address [email protected], or should be Type of Review: New. opportunity to comment on information faxed to 202–708–9346. Title: William D. Ford Federal Direct collection requests. OMB may amend or FOR FURTHER INFORMATION CONTACT: Loan Program, Closed School Loan waive the requirement for public Patrick J. Sherrill (202) 708–8196. Discharge Application Documents. consultation to the extent that public Individuals who use a Frequency: On occasion. participation in the approval process telecommunications device for the deaf Affected Public: Individuals or would defeat the purpose of the (TDD) may call the Federal Information households. information collection, violate State or Relay Service (FIRS) at 1–800–877–8339 Annual Reporting and Recordkeeping Federal law, or substantially interfere between 8 a.m. and 8 p.m., Eastern time, Hour Burden: with any agency’s ability to perform its Monday through Friday. Responses: 2,200 statutory obligations. The Acting SUPPLEMENTARY INFORMATION: Section Burden Hours: 1,100 Director of the Information Resources 3506 (c)(2)(A) of the Paperwork Abstract: These forms will serve as Group publishes this notice containing Reduction Act of 1995 (44 U.S.C. the means of collecting the information proposed information collection Chapter 3506 (c)(2)(A) requires that the that the Department of Education Director of OMB provide interested requests prior to submission of these requires in order to determine whether requests to OMB. Each proposed Federal agencies and the public an early a direct loan borrower qualifies for a information collection, grouped by opportunity to comment on information loan discharge based on school closure. collection requests. The Office of office, contains the following: (1) Type Management and Budget (OMB) may [FR Doc. 96–11262 Filed 5–6–96; 8:45 am] of review requested, e.g., new, revision, amend or waive the requirement for BILLING CODE 4000±01±P extension, existing or reinstatement; (2) public consultation to the extent that Title; (3) Summary of the collection; (4) public participation in the approval Description of the need for, and Notice of Proposed Information process would defeat the purpose of the proposed use of, the information; (5) Collection Requests information collection, violate State or Respondents and frequency of Federal law, or substantially interfere AGENCY: Department of Education. collection; and (6) Reporting and/or with any agency’s ability to perform its ACTION: Submission for OMB review; Recordkeeping burden. OMB invites statutory obligations. The Acting comment request. public comment at the address specified Director of the Information Resources above. Copies of the requests are Group, publishes this notice containing SUMMARY: The Acting Director, available from Patrick J. Sherrill at the proposed information collection Information Resources Group, invites address specified above. requests at the beginning of the comments on the proposed information 20518 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Notices

Dated: May 1, 1996. information is transmitted to State SUMMARY: The Office of Fossil Energy of Arthur F. Chantker, agencies to assist in the conduct and the Department of Energy gives notice Acting Director, Information Resources expansion of the program at the State that it has issued Orders authorizing Group. level. Respondents are the designated various imports and/or exports of vocational rehabiliation agencies. Office of Special Education and natural gas. These Orders are Rehabilitative Services [FR Doc. 96–11263 Filed 5–6–96; 8:45 am] summarized in the attached Appendix. Type of Review: Extension. BILLING CODE 4000±01±P These Orders are available for Title: Report of Randolph-Sheppard inspection and copying in the Office of Vending Facility Program. Fuels Programs Docket Room, 3–F056, Frequency: Annually. DEPARTMENT OF ENERGY Forrestal Building, 1000 Independence Affected Public: Individuals or Avenue, S.W., Washington, D.C. 20585, households; Business or other for-profit; Office of Fossil Energy (202) 586–9478. The Docket Room is Federal Government; State, local or [FE Docket Nos. 96±02±NG; 96±03±NG, 96± open between the hours of 8:00 a.m. and Tribal Gov’t, SEAs or LEAs. 13±NG, 96±12±NG, 96±10±NG, 96±14±NG] 4:30 p.m., Monday through Friday, Annual Reporting and Recordkeeping except Federal holidays. Hour Burden: Eastern Energy Marketing, Inc., et al.; Responses: 51 Orders Granting Authorization To Issued in Washington, D.C., on April 25, Burden Hours: 739 Import and/or Export Natural Gas 1996. Clifford P. Tomaszewski, Abstract: The information is needed AGENCY: Office of Fossil Energy, DOE. to evaluate the effectiveness of the Director, Office of Natural Gas, Office of Fuels ACTION: Notice of orders. program and to promote growth. The Programs, Office of Fossil Energy.

APPENDIXÐIMPORT/EXPORT AUTHORIZATIONS GRANTED [DOE/FE Authority]

Date is- Import vol- Export vol- Order No. sued Importer/exporter FE docket No. ume ume Comments

1151 ...... 03/27/96 Eastern Energy Marketing, (96±2±NG) 2,677 Mcf/ ...... Long-term for 20 years, day. from Canada. 1152 ...... 03/27/96 Eastern Energy Marketing, Inc. (96±3±NG) 2,826 Mcf/ ...... Long-term for 20 years, day. from Canada. 1153 ...... 03/27/96 Norstar Energy Limited Partnership (96±13±NG) 73 Bcf/2- 73 Bcf/2- Short-term for 2 years, year term. year. from and to Canada. 1154 ...... 03/27/96 Murphy Gas Gathering Company (96±12±NG) 73 Bcf/2- ...... Short-term for 2 years, year term. from and to Canada. 1156 ...... 03/29/96 ProGas U.S.A., Inc. (96±10±NG) 15,000 Mcf/ ...... Long-term ending 10/31/ day. 2000, from Canada. 1157 ...... 04/03/96 Westcoast Gas Services (96±14±NG) 1,000 Bcf/2- 1,000 Bcf/2- Short-term for 2 years, year term. year term. from and to Canada.

[FR Doc. 96–11299 Filed 5–6–96; 8:45 am] Avenue, S.W., Washington, D.C. 20585, implementation of the rates contained BILLING CODE 6450±01±P (202) 586–9478. The docket room is in the Commission-approved open between the hours of 8:00 a.m. and Stipulation and Agreement filed on June 4:30 p.m., Monday through Friday, 28, 1995 (the June 28 Stipulation). [FE Docket No. 96±16±NG] except Federal holidays. CNG states that the purpose of this Issued in Washington, D.C., April 19, 1996. Tenneco Gas Marketing Company; filing is to report refunds and associated Clifford P. Tomaszewski Order Granting Blanket Authorization interest that CNG paid to its customers Director, Office of Natural Gas, Office of Fuels on March 29, 1996. CNG further states To Export Natural Gas to Canada and Programs, Office of Fossil Energy. Mexico that these refunds were made as a result [FR Doc. 96–11300 Filed 5–6–96; 8:45 am] of CNG implementation of settlement AGENCY: Office of Fossil Energy, DOE. BILLING CODE 6450±01±P rates, which were approved by Commission order dated December 7, ACTION: Notice of order. 1995, in Docket Nos. RP94–96, et al., 73 Federal Energy Regulatory SUMMARY: The Office of Fossil Energy of Commission FERC ¶ 61,289 (1995). As detailed in the Department of Energy gives notice Attachment A to the filing, CNG states that it has issued an order granting CNG Transmission Corporation; Notice that the total refund obligation in these Tenneco Gas Marketing Company of Report of Refunds proceedings as of March 29, 1996, authorization to export up to 200 Bcf of consisted of a principal amount of [Docket No. RP94±96±019] natural gas to Canada and to export up $81,340,394.26, plus interest of to 200 Bcf of natural gas to Mexico over May 1, 1996. $7,372,157.20, for a total refund a two-year term beginning the date of Take notice that on April 29, 1996, obligation of $88,712,551.46. The first export delivery after May 10, 1996. CNG Transmission Corporation (CNG), workpapers included in Attachment B This order is available for inspection tendered for filing its report of refunds to the filing, provide detailed support and copying in the Office of Fuels attributable to the resolution of the for CNG computation of this refund Programs Docket Room, 3F–056, captioned proceedings. CNG states that Forrestal Building, 1000 Independence the reported refunds reflect CNG Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Notices 20519 principal and associated interest, as not serve to make protestants parties to Comment date: May 14, 1996, in allocated by rate schedule, by customer, the proceeding. Copies of this filing are accordance with Standard Paragraph E and by invoice group. on file with the Commission and are at the end of this notice. CNG states that copies of this letter of available for public inspection. 3. Consumers Power Company transmittal and enclosures are being Linwood A. Watson, Jr., mailed to affected customers and Acting Secretary. [Docket No. ER96–1637–000] interested state commissions. [FR Doc. 96–11266 Filed 5–6–96; 8:45 am] Take notice that on April 25, 1996, Any person desiring to protest this BILLING CODE 6717±01±M Consumers Power Company filing should file a protest with the (Consumers), tendered for filing a Federal Energy Regulatory Commission, revision to the annual charge rate for 888 First Street NE., Washington, DC, [Docket No. ER96±1635±000, et al.] charges due Consumers from Northern 20426, in accordance with 18 CFR Indiana Public Service Company 385.211 of the Commission Rules and Indeck Pepperell Power Assoicates, (Northern), under the terms of the Regulations. All such protests must be Barton Lake-Batavia Interconnection filed on or before May 8, 1996. Protests Inc., et al. Electric Rate and Corporate Regulation Filings Facilities Agreement (designated will be considered by the Commission Consumers Power Company Electric in determining the appropriate action to April 30, 1996. Rate Schedule FERC No. 44). be taken, but will not serve to make protestants parties to the proceeding. Take notice that the following filings The revised charge is provided for in Copies of this filing are on file with the have been made with the Commission: Subsection 1.043 of the Agreement, Commission and are available for public which provides that the annual charge 1. Indeck Pepperell Power Associates, rate may be redetermined effective May inspection in the Public Reference Inc. Room. 1, 1996 using year-end 1995 data with a new annual charge rate. As a result of Linwood A. Watson, Jr., [Docket No. ER96–1635–000] the redetermination, the monthly Acting Secretary. Take notice that on April 25, 1996, charges to be paid by Northern were [FR Doc. 96–11267 Filed 5–6–96; 8:45 am] Indeck Pepperell Power Associates, Inc. increased from $17,082.00 to BILLING CODE 6717±01±M (Indeck Pepperell) submitted for filing $17,693.00. Consumers requests an the Electric Power Service Agreement effective date of May 1, 1996, and between Indeck Pepperell and [Docket No. RP91±47±017] therefore requests waiver of the Massachusetts Municipal Wholesale Commission’s notice requirements. Electric Company (MMWEC) setting National Fuel Gas Supply Corporation; Copies of the filing were served upon Notice of Compliance Filing forth the terms and conditions for Indeck Pepperell’s provision of electric Northern, the Michigan Public Service May 1, 1996. capacity, energy and services to Commission and the Indiana Utility Regulatory Commission. Take notice that on April 26, 1996, MMWEC under Indeck Pepperell’s Rate National Fuel Gas Supply Corporation Schedule FERC No. 1. Comment date: May 14, 1996, in (National) notified the Commission that Indeck Pepperell states that its filing accordance with Standard Paragraph E it made Billing Adjustments to its is in accordance with Part 35 of the at the end of this notice. former RQ and CD customers, in Commission’s Regulations. Indeck 4. Madison Gas and Electric Company accordance with Section 20(f) of the Pepperell requests a waiver of the [Docket No. ER96–1638–000] General Terms and Conditions of Commission’s notice requirements so National’s FERC Gas Tariff. that its revised rate schedule may Take notice that on April 25, 1996, Under Section 20, National is become effective on May 1, 1996. Madison Gas and Electric Company required to make any Billing Comment date: May 14, 1996, in (MGE), tendered for filing a service Adjustments caused by the reallocation accordance with Standard Paragraph E agreement with Delhi Energy Services, of take-or-pay (TOP) charges under the at the end of this notice. Inc., under MGE’s Power Sales Tariff. Winter Requirement Quantity allocation MGE requests an effective date 60 days method within sixty (60) days of a final 2. Kansas City Power & Light Company from the filing date. Commission Order. National states that [Docket No. ER96–1636–000] Comment date: May 14, 1996, in this Billing Adjustment reflects charges Take notice that on April 25, 1996, accordance with Standard Paragraph E or refunds caused by the reallocation of at the end of this notice. TOP charges from Columbia Gas Kansas City Power & Light Company Transmission Corporation. (KCPL), tendered for filing a Service 5. Public Service Electric and Gas National states that copies of the letter Agreement dated April 4, 1996, between Company KCPL and Commonwealth Edison and the attached worksheets were sent [Docket No. ER96–1639–000] to each of National’s former RQ and CD Company (ComEd). KCPL proposes an customers. effective date of April 4, 1996, and Take notice that on April 25, 1996, Any person desiring to protest said requests waiver of the Commission’s Public Service Electric and Gas filing should file a protest with the notice requirement. This Agreement Company (PSE&G), tendered for filing Federal Energy Regulatory Commission, provides for the rates and charges for an initial rate schedule to provide fully 888 First Street NE., Washington, D.C. Non-Firm Transmission Service interruptible transmission service to 20426, in accordance with Rule 211 of between KCPL and ComEd. PECO Energy Company, for delivery of the Commission’s Rules of Practice and In its filing, KCPL states that the rates non-firm wholesale electrical power and Procedure 18 CFR 385.211. All such included in the above-mentioned associated energy output utilizing the protests must be filed on or before May Service Agreement are KCPL’s rates and PSE&G bulk power transmission system. 8, 1996. Protests will be considered by charges which were conditionally Comment date: May 14, 1996, in the Commission in determining the accepted for filing by the Commission in accordance with Standard Paragraph E appropriate action to be taken but will Docket No. ER94–1045–000. at the end of this notice. 20520 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Notices

6. PECO Energy Company Comment date: May 14, 1996, in Comment date: May 14, 1996, in [Docket No. ER96–1640–000] accordance with Standard Paragraph E accordance with Standard Paragraph E at the end of this notice. at the end of this notice. Take notice that on April 25, 1996, PECO Energy Company (PECO), filed a 9. Arizona Public Service Company 13. East Texas Electric Cooperative Inc. Service Agreement dated April 17, 1996, [Docket No. ER96–1644–000] [Docket No. ES96–24–000] with NorAm Energy Services, Inc. Take notice that on April 25, 1996, Take notice that on April 26, 1996, (NORAM) under PECO’s FERC Electric Arizona Public Service Company (APS), East Texas Electric Cooperative, Inc. Tariff Original Volume No. 1 (Tariff). tendered for filing a Service Agreement filed an application, under § 204 of the The Service Agreement adds NORAM as under APS-FERC Electric Tariff Original Federal Power Act, seeking a customer under the Tariff. Volume No. 1 (APS Tariff) with the authorization to assume a long-term PECO requests an effective date of following entity: secured loan. The loan will be extended April 17, 1996, for the Service Federal Energy Sales Inc. by the National Rural Utilities Agreement. Cooperative Finance Corporation in an PECO states that copies of this filing A copy of this filing has been served amount up to $6,073,276 and will have been supplied to NORAM and to on the above listed party and the mature in 7 years. the Pennsylvania Public Utility Arizona Corporation Commission. Comment date: May 14, 1996, in Commission. Comment date: May 14, 1996, in accordance with Standard Paragraph E Comment date: May 14, 1996, in accordance with Standard Paragraph E at the end of this notice. at the end of this notice. accordance with Standard Paragraph E Standard Paragraph at the end of this notice. 10. Louisville Gas and Electric E. Any person desiring to be heard or 7. PECO Energy Company Company to protest said filing should file a [Docket No. ER96–1641–000] [Docket No. ER96–1646–000] motion to intervene or protest with the Take notice that on April 25, 1996, Take notice that on April 24, 1996, Federal Energy Regulatory Commission, PECO Energy Company (PECO), filed a Louisville Gas and Electric Company 888 First Street, N.E., Washington, D.C. Service Agreement dated April 17, 1996, (LG&E), tendered for filing a Purchase 20426, in accordance with Rules 211 with South Carolina Public Service and Sales Agreement between LG&E and and 214 of the Commission’s Rules of Authority (SANTEE COOPER) under Rainbow Energy Marketing Corporation Practice and Procedure (18 CFR 385.211 PECO’s FERC Electric Tariff Original under Rate Schedule GSS—Generation and 18 CFR 385.214). All such motions Volume No. 1 (Tariff). The Service Sales Service. or protests should be filed on or before Agreement adds SANTEE COOPER as a A copy of the filing has been mailed the comment date. Protests will be customer under the Tariff. to the Kentucky Public Service considered by the Commission in Commission. determining the appropriate action to be PECO requests an effective date of taken, but will not serve to make Comment date: May 14, 1996, in April 17, 1996, for the Service protestants parties to the proceeding. accordance with Standard Paragraph E Agreement. Any person wishing to become a party at the end of this notice. PECO states that copies of this filing must file a motion to intervene. Copies have been supplied to SANTEE 11. Louisville Gas and Electric Co. of this filing are on file with the COOPER and to the Pennsylvania Public Commission and are available for public [Docket No. ER96–1647–000] Utility Commission. inspection. Comment date: May 14, 1996, in Take notice that on April 26, 1996, Linwood A. Watson, Jr., Louisville Gas and Electric Company accordance with Standard Paragraph E Acting Secretary. at the end of this notice. (LG&E), tendered for filing a Purchase and Sales Agreement between LG&E and [FR Doc. 96–11268 Filed 5–6–96; 8:45 am] 8. Virginia Electric and Power Co. Intercoast Power Marketing Company, BILLING CODE 6717±01±P [Docket No. ER96–1642–000] under Rate Schedule GSS—Generation Take notice that on April 25, 1996, Sales Service. A copy of the filing has been mailed ENVIRONMENTAL PROTECTION Virginia Electric and Power Company AGENCY (Virginia Power), tendered for filing a to the Kentucky Public Service Service Agreement between Maine Commission. [FRL±5468±9] Public Service Company and Virginia Comment date: May 14, 1996, in Power, dated April 17, 1996, under the accordance with Standard Paragraph E Request for Comments: The Pesticides Power Sales Tariff to Eligible Purchasers at the end of this notice. Enforcement and Applicator dated May 27, 1994. Under the tendered Certification Cooperative Agreements 12. Louisville Gas and Electric Output Projection/Quarterly Service Agreement Virginia Power Company agrees to provide services to Maine Accomplishments Reporting Form; Public Service Company under the [Docket No. ER96–1648–000] Agency Information Collection rates, terms and conditions of the Power Take notice that on April 26, 1996, Activities up for Renewal (OMB Control Sales Tariff as agreed by the parties Louisville Gas and Electric Company Number 2070±0113) pursuant to the terms of the applicable (LG&E), tendered for filing a Purchase AGENCY: Environmental Protection Service Schedules included in the and Sales Agreement between LG&E and Agency (EPA). Power Sales Tariff. Industrial Energy Applications, Inc. ACTION: Notice. Copies of the filing were served upon under Rate Schedule GSS—Generation the Virginia State Corporation Sales Service. SUMMARY: In compliance with the Commission, the North Carolina A copy of the filing has been mailed Paperwork Reduction Act (44 U. S. C. Utilities Commission, and the Maine to the Kentucky Public Service 3501 et seq.), this notice announces that Public Utilities Commission. Commission. the Information Collection Request (ICR) Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Notices 20521 listed below is coming up for renewal. projected to be trained, certified, and who respond, including through the use Before submitting the renewal package recertified and the number and type of appropriate automated electronic, to the Office of Management and Budget actually trained, certified, and mechanical, or other technological (OMB), EPA is soliciting comments on recertified during a specific period of collection techniques or other forms of specific aspects of the collection as time and according to recertification information technology, e. g., permitting described below. periods. electronic submission of responses. DATES: Comments must be submitted on States submit the completed forms to their EPA Regional Office, where it is Estimating the Burden and Cost of the or before July 8, 1996. Collection ADDRESSES: United States entered into a data base. The Environmental Protection Agency; information is used to evaluate whether Estimating Respondent Burden Office of Enforcement and Compliance planned activities are actually The estimates for developing and Assurance; Enforcement Capacity and accomplished, whether the activities providing to EPA the information found Outreach Office (2201A); 401 M Street, undertaken are commensurate with in Form 5700–33H are based upon SW., Washington, D. C. 20460. grant funding levels, to ensure that discussions with State pesticide Interested persons can obtain a copy of adequate coverage is given to the entire, regulatory officials. The information this ICR, without charge, by writing to broad scope of compliance and collection involves two groups of the following address: Ms. Sandy enforcement activities, and to provide a respondents: 70 respondents complete Farmer; United States Environmental basis for adjusting enforcement plans projections and report enforcement Protection Agency; OPPE Regulatory throughout the year, dependent on accomplishments (Group A); and 55 Information Division (2136); 401 M emerging situations. Additionally the respondents complete certification and Street, SW., Washington, DC; EPA ICR training, certification, and training reports (Group B). The type of Number 1547/OMB Control No. 2070– recertification information is also used information being collected and 0113. to determine if funding levels are adequate, to determine if a State’s reported on 5700–33H is that which a FOR FURTHER INFORMATION CONTACT: John Certification Plan is being implemented, State Pesticide Agency would already be J. Neylan III, Telephone number (202) and to afford a basis for adjustment as maintaining as a part of the State’s 564–5033; facsimile number (202) 564– needed. competent management of a Federally- 0034; E-mail The information collected under this funded grant program. Completion of ([email protected]). ICR is not confidential and will be the enforcement/certification and SUPPLEMENTARY INFORMATION: provided upon request by writing to the training activities projection report is Affected Entities: Entities affected by address listed above. An agency may not estimated to take four hours. The total this action are those States, Territories, conduct or sponsor, and a person is not number of hours to complete the and Indian Tribes which have entered required to respond to, a collection of quarterly enforcement accomplishment into cooperative agreements with the information unless it displays a reports is 20 hours, while it takes six Agency for pesticide enforcement and/ currently valid OMB control number. hours to execute the certification or for certification and training The OMB control numbers for EPA’s accomplishments report and three hours activities. regulations are listed in 40 CFR Part 9 to document annually the total number Title: Pesticides Enforcement and and 48 CFR Chapter 15. of certified applicators by category. Applicator Certification Cooperative The Agency needs to obtain the Agreement Output Projections/ information required by this Estimating Respondent Cost Quarterly Accomplishments Reporting information collection in order to The cost to respondents to provide the Form; (OMB Control No. 2070–0113); determine (1) if the activities planned EPA ICR No. 1547; Expires August 31, information collected under this ICR is are commensurate with the proposed estimated to be minor. The Agency did 1996. This is a request for an extension funding level, (2) if the planned of a currently approved collection. not have approximate hourly rates for activities adequately cover the scope of State employees and therefore in Abstract: This information collection enforcement and certification and request is for EPA Form 5700–33H, the calculating costs EPA substituted hourly training activities that correspond to a labor rates for Federal managers Pesticides Enforcement and Applicator strong pesticide program, (3) if planned Certification Cooperative Agreement ($76.00), Technical ($55.00), and activities are actually implemented, and clerical support ($25.00). Output Projections/Quarterly 4) if planned activities need to be Accomplishments Reporting Form. This adjusted to fit changing circumstances. Estimating Agency Burden Cost reporting form is required from States, The EPA would like to solicit Territories, and Tribes (States) that have comments to: The costs to the Government to cooperative agreements (grants) with the (i) evaluate whether the proposed process, analyze, and maintain the Office of Enforcement and Compliance collection of information is necessary information requested in Form 5700– Assurance (OECA) and/or the Office of for the proper performance of the 33H is based on four work hours per Prevention, Pesticides, and Toxic functions of the Agency, including report received [five reports from each Substances (OPPTS) under the authority whether the information will have respondent in Group A, and three of the Federal Insecticide, Fungicide, practical utility; reports from each respondent in Group and Rodenticide Act, sections 23(a)(1) (ii) evaluate the accuracy of the B annually], and ten hours of and (2), 26(a), and 11(a)(2)(D). The Agency’s estimate of the burden of the Headquarters personnel at an average reporting form is used by grantees to proposed collection of information, GS–9 Step 4 grade plus 10.4% estimated report: a) the number and type of including the validity of the overhead costs. Other direct costs are inspections projected and completed, methodology and assumptions used; limited to printing costs for the the number and type of samples (iii) enhance the quality, utility, and reporting form. The number of expected to be taken and actually clarity of the information to be respondents is based upon the number collected, the number and type of collected; and of States, Tribes and Territories that enforcement actions taken; and b) the (iv) minimize the burden of the have entered into cooperative number and type of applicators collection of the information on those agreements with the Agency. 20522 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Notices

Bottom Line Burden Hours and Costs on May 30. Agenda items will include: —Organization The estimates of costs for Form 5700– Program Assessments: Mission; —Priorities —Incomplete Business Items 33H are discussed below. The annual Function; Organization; FY96–97 3:00 pm burden costs for respondents consist of Priorities; and Incomplete Business Meeting Adjourned * ** reading instructions, compiling Items. information, completing forms, and The meeting is open to the public. [FR Doc. 96–11336 Filed 5–6–96; 8:45 am] filing the forms with EPA. The total Bryon Griffith, BILLING CODE 6560±50±P time associated with providing the Acting Director, Gulf of Mexico Program. enforcement activity projections and Draft Agenda Joint PRB/MC Meeting, [FRL±5501±4] quarterly accomplishments reports is 24 May 29–30, 1996 hours, times 70 respondents, which Air Quality Criteria for Particulate equals 1680 hours at an annual cost of Wednesday, May 29 Matter $25,200.00. The total time associated 10:00 am with providing the certification and Welcome & Introduction of AGENCY: Environmental Protection training activities projections and Participants Agency. semiannual accomplishment reports is Program Status (GMP Director’s ACTION: Notice of Availability. nine hours, times 55 respondents, Update) which equals 495 hours at an annual SUMMARY: This notice announces the cost of $7425.00. The entire annual cost Program Assessments availability of a final report titled, Air of this collection is $32,625.00. 10:30 am Quality Criteria for Particulate Matter Send comments regarding these Mission (Who/What is the Gulf (EPA/600/P–95/001aF–cF), prepared by matters, or any other aspect of the Program?) the U.S. Environmental Protection information collection, including —External Perceptions (Clients/ Agency’s (EPA) Office of Research and suggestions for reducing the burden, to Constituents) Development (ORD). This document the address listed above. —Internal Perceptions (Partners) evaluates the latest scientific —Recommended Adjustments (GMP information pertaining to health and Dated: April 24, 1996. environmental effects associated with Elaine G. Stanley, Director) —PRB/MC Discussion/Decision airborne particulate matter (PM). Director, Office of Compliance, Office of DATES: On April 12, 1996 ORD Enforcement and Compliance Assurance. 1:00 pm Function (What are the appropriate transmitted to the EPA Office of Air and [FR Doc. 96–11335 Filed 5–6–96; 8:45 am] functional approaches & objectives Radiation final versions of all thirteen BILLING CODE 6560±50±P for the Gulf Program?) chapters of the document, Air Quality —External Perceptions (Clients/ Criteria for Particulate Matter. After [FRL±5468±3] Constituents) duplication of this large final report, —Internal Perceptions (Partners) bound copies of the PM Air Quality Gulf of Mexico Program Joint —Recommended Adjustments (GMP Criteria Document will be available for Management Committee and Policy Director) wide public distribution on or about Review Board Committee Meeting —PRB/MC Discussion/Decision May 15, 1996. Until duplication is 3:00 pm completed, interested parties can access AGENCY: U.S. Environmental Protection Organization (What structure is the Executive Summary of the PM Air Agency (EPA). needed to carry out the Program?) Quality Criteria Document via the Internet on the ORD Home Page (http:/ ACTION: Notice of meeting of the Joint —External Perceptions (Clients/ /www.epa.gov/ORD). In addition, the Management Committee and Policy Constituents) entire PM Air Quality Criteria Review Board Committee of the Gulf of —Internal Perceptions (Partners) Document is available electronically on Mexico Program. —Recommended Adjustments (GMP Director) the Agency’s Office of Air Quality Planning and Standards’ (OAQPS) SUMMARY: The Gulf of Mexico Program’s —PRB/MC Discussion/Decision Technology Transfer Network (TTN) Joint Management Committee and 4:30 pm Meeting adjourned for the day Bulletin Board System (BBS). The Policy Review Board Committee will *** telephone number for the TTN BBS is hold a meeting at the Omni Royal Thursday, May 30 (919) 541–5742. To access the bulletin Orleans Hotel, 621 St. Louis Street, New board a modern and communications Orleans, Louisiana. 8:30 am Organization (continued * * *) software are necessary. The following FOR FURTHER INFORMATION CONTACT: —PRB/MC Discussion/Decision parameters on the communications James D. Giattina, Director, Gulf of 10:00 am software are required: Data Bits—8; Mexico Program Office, Building 1103, Priorities FY 1996–1997 (Where do Parity—N; and Stop Bits—1.The Room 202, John C. Stennis Space we need to focus limited resources document will be located on the Clean Center, Stennis Space Center, MS for the greatest return?) Air Act Amendments BBS, under Title 39529–6000, at (601) 688–3726. —Internal Perception (Partners) I, Policy/Guidance Documents. If SUPPLEMENTARY INFORMATION: A meeting —PRB/MC Discussion/Decision assistance is needed in accessing the of the Management Committee and Incomplete Business Items (PRB & system, call the help desk at (919) 541– Policy Review Board Committee of the MC) 5384 in Research Triangle Park, NC. Gulf of Mexico Program will be held Also, a copy of the completed report is May 29–30, 1996, at the Omni Royal Meeting Summary available for public inspection at the Orleans Hotel, 621 St. Louis Street, New 2:00 pm EPA Air Docket and at the EPA Library, Orleans, Louisiana. The committee will Agreements/Decisions: both at EPA Headquarters, Waterside meet from 10:00 a.m. to 4:30 p.m. on —Mission Mall, 401 M Street, SW, Washington, May 29 and from 8:30 a.m. to 3:00 p.m. —Function D.C. EPA Air Docket hours, in Room Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Notices 20523

M1500 of Waterside Mall, are 8:00 a.m. Dated: May 1, 1996. Dated: May 3, 1996. to 5:30 p.m., Monday through Friday, Joseph K. Alexander, Floyd Fithian, excluding holidays. EPA Library hours Deputy Assistant Administrator for Research Secretary, Farm Credit Administration Board. are from 10:00 a.m. until 2:00 p.m., and Development. [FR Doc. 96–11466 Filed 5–3–96; 3:14 pm] excluding holidays. [FR Doc. 96–11334 Filed 5–6–96; 8:45 am] BILLING CODE 6705±01±P ADDRESSES: On or about May 15, 1996, BILLING CODE 6560±50±M interested parties can obtain a single copy of the final PM Air Quality Criteria FEDERAL COMMUNICATIONS COMMISSION Document by contacting: ORD FARM CREDIT ADMINISTRATION Publications Office, Technology Sunshine Act Meeting; FCC To Hold Transfer Division, National Risk Sunshine Act Meeting; Farm Credit Open Commission Meeting Thursday Management Research Laboratory, U.S. Administration Board; Regular Meeting Environmental Protection Agency, 26 May 9, 1996 W. Martin Luther King Drive, AGENCY: Farm Credit Administration. The Federal Communications Cincinnati, OH 45268; telephone (513) Commission will hold an Open Meeting 569–7562; facsimile: (513) 569–7566. SUMMARY: Notice is hereby given, on the subjects listed below on Please provide your name and mailing pursuant to the Government in the Thursday, May 9, 1996, which is address, and request the three-volume Sunshine Act (5 U.S.C. 552b(e)(3)), of scheduled to commence at 2:00 p.m., in document by the title and EPA the forthcoming regular meeting of the Room 856, at 1919 M Street, NW., document number (EPA/600/P–95/ Farm Credit Administration Board Washington, DC. 001aF–cF). There will be a limited (Board). number of paper copies available from Item No., Bureau, Subject DATE AND TIME: The rerular meeting of the above source. Requests will be filled the Board will be held at the offices of on a first-come-first-served basis. After 1—Mass Media—Title: Advanced the Farm Credit Administration in the supply is exhausted, copies of the Television Systems and Their Impact McLean, Virginia, on May 9, 1996, from upon the Existing Television PM Air Quality Criteria Document can 10:00 a.m. until such time as the Board Broadcast Service (MM Docket No. be purchased from the National concludes its business. 87–268). Summary: The Commission Technical Information Service (NTIS) by will consider action concerning calling (703) 487–4650 or sending a FOR FURTHER INFORMATION CONTACT: Floyd Fithian, Secretary to the Farm technical standards for digital facsimile to (703) 321–8547. The NTIS television. order numbers for the Air Quality Credit Administration Board, (703) 883– 2—Office of Engineering and Criteria for Particulate Matter are: Vol. 4025, TDD (703) 883–4444. Technology—Title: Amendment of I of III (PB96–168232), Vol. II of III ADDRESSES: Farm Credit Parts 2 and 15 of the Commission’s (PB96–168240), Vol. III of III (PB96– Administration, 1501 Farm Credit Drive, Rules to Deregulate the Equipment 168257), and for the three volume set McLean, Virginia 22102–5090. Authorization Requirements for (PB96–168224). SUPPLEMENTARY INFORMATION: Parts of Digital Devices (ET Docket No. 95– FOR FURTHER INFORMATION CONTACT: this meeting of the Board will be open 19). Summary: The Commission will Diane H. Ray, National Center for to the public (limited space available), consider action concerning new Environmental Assessment (MD–52), and parts of this meeting will be closed equipment authorization procedures U.S. Environmental Protection Agency, to the public. In order to increase the for personal computers and peripheral Research Triangle Park, NC 27711; accessibility to Board meetings, persons devices, accreditation of testing telephone: (919) 541–3637; facsimile: requiring assistance should make laboratories, and the authorization of (919) 541–1818. arrangements in advance. The matters to CPU boards and power supplies to be considered at the meeting are: facilitate modular construction. SUPPLEMENTARY INFORMATION: Sections 3—International—Title: Motion of 108 to 109 of the Clean Air Act (CAA) Open Session AT&T Corp., to be Declared Non- govern the establishment, review, and A. Approval of Minutes Dominant for International Services. revision of National Ambient Air B. New Business Summary: The Commission will Quality Standards (NAAQS). Section consider a request from AT&T that it 108 directs the Administrator of the U.S. Regulations be reclassified as a non-dominant Environmental Protection Agency (EPA) 1. Flood Insurance Regulations Update [12 carrier in the provision of to list pollutants that may reasonably be CFR Part 614] (Final) international services. anticipated to endanger public health or 2. Disclosure to Shareholders [12 CFR Part 620] (Proposed) 4—International—Title: Amendment of welfare and to issue air quality criteria the Commission’s Regulatory Policies for them. The air quality criteria are to 3. Other Financing Institutions [12 CFR Part 614] (ANPRM) to Allow Non-U.S.- licensed Space reflect the latest scientific information Stations to Provide Domestic and useful in indicating the kind and extent C. Report International Satellite Service in the of all effects on public health and Report on Regulations for the Federal United States and Amendment of welfare that may be expected from the Agricultural Mortgage Corporation Section 25.131 of the Commission’s presence of the pollutant in ambient air. Closed Session* Rules and Regulations to Eliminate In keeping with these CAA mandates, the Licensing Requirement for Certain this document evaluates the latest D. Report International Receive-Only Earth scientific information useful in deriving OSMO Quarterly Stations (CC Docket No. 93–23, RM– criteria to form scientific bases for lllllllll 7931). Summary: The Commission decisions regarding possible revision of *Session Closed—Exempt pursuant to 5 will consider action concerning a current PM NAAQS. U.S.C. 552b(c) (8) and (9). uniform framework to evaluate 20524 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Notices

applications by users in the United You are authorized to provide Individual affected by the catastrophe declared a States for authority to operate with Assistance in the designated areas. Further, major disaster by the President in his satellites licensed by other countries. you are authorized to provide reimbursement declaration of April 23, 1996: for debris removal and emergency protective Additional information concerning measures under the Public Assistance The counties of Crawford and Sebastian for this meeting may be obtained from program. Other assistance under Public Hazard Mitigation Assistance. (Already Audrey Spivack or Maureen Peratino, Assistance or Hazard Mitigation may be designated for Individual Assistance and Office of Public Affairs, telephone added at a later date, if warranted. Consistent Public Assistance.) number (202) 418–0500. with the requirement that Federal assistance The counties of Franklin, Madison, Copies of materials adopted at this be supplemental, any Federal funds provided Marion, and Washington for Hazard under the Stafford Act for Public Assistance Mitigation. (Already designated for meeting can be purchased from the Individual Assistance.) FCC’s duplicating contractor, or Hazard Mitigation will be limited to 75 percent of the total eligible costs. (Catalog of Federal Domestic Assistance No. International Transcription Services, 83.516, Disaster Assistance.) Inc. at (202) 857–3800. Audio and video The time period prescribed for the Dennis H. Kwiatkowski, tapes of this meeting can be purchased implementation of section 310(a), from Telspan International at (301) 731– Priority to Certain Applications for Deputy Associate Director, Response and Recovery Directorate. 5355. Public Facility and Public Housing Dated May 2, 1996. Assistance, 42 U.S.C. 5153, shall be for [FR Doc. 96–11321 Filed 5–6–96; 8:45 am] BILLING CODE 6718±02±P Federal Communications Commission. a period not to exceed six months after the date of this declaration. William F. Caton, Notice is hereby given that pursuant [FEMA±1111±DR] Acting Secretary. to the authority vested in the Director of [FR Doc. 96–11528 Filed 5–3–96; 3:14 pm] the Federal Emergency Management Arkansas; Amendment to Notice of a BILLING CODE 6712±01±F Agency under Executive Order 12148, I Major Disaster Declaration hereby appoint Graham Nance of the Federal Emergency Management Agency AGENCY: Federal Emergency FEDERAL EMERGENCY to act as the Federal Coordinating Management Agency (FEMA). MANAGEMENT AGENCY Officer for this declared disaster. ACTION: Notice. I do hereby determine the following [FEMA±1111±DR] areas of the State of Arkansas to have SUMMARY: This notice amends the notice of a major disaster for the State of Arkansas; Major Disaster and Related been affected adversely by this declared Arkansas, (FEMA–1111–DR), dated Determinations major disaster: April 23, 1996, and related Crawford and Sebastian Counties for determinations. AGENCY: Federal Emergency Individual Assistance and reimbursement for Management Agency (FEMA). debris removal and emergency protective EFFECTIVE DATE: April 30, 1996. ACTION: Notice. measures under the Public Assistance FOR FURTHER INFORMATION CONTACT: program. Pauline C. Campbell, Response and SUMMARY: This is a notice of the (Catalog of Federal Domestic Assistance No. Recovery Directorate, Federal Presidential declaration of a major 83.516, Disaster Assistance.) Emergency Management Agency, disaster for the State of Arkansas James L. Witt, Washington, DC 20472, (202) 646–3606. (FEMA–1111–DR), dated April 23, 1996, Director. SUPPLEMENTARY INFORMATION: The notice and related determinations. [FR Doc. 96–11320 Filed 5–6–96; 8:45 am] of a major disaster for the State of EFFECTIVE DATE: April 23, 1996. BILLING CODE 6718±02±P Arkansas, is hereby amended to include FOR FURTHER INFORMATION CONTACT: the following areas among those areas Pauline C. Campbell, Response and determined to have been adversely [FEMA±1111±DR] Recovery Directorate, Federal affected by the catastrophe declared a Emergency Management Agency, Arkansas; Amendment to Notice of a major disaster by the President in his Washington, DC 20472, (202) 646–3606. Major Disaster Declaration declaration of April 23, 1996: SUPPLEMENTARY INFORMATION: Notice is The counties of Franklin and Madison for hereby given that, in a letter dated April AGENCY: Federal Emergency Public Assistance. (Already designated for 23, 1996, the President declared a major Management Agency (FEMA). Individual Assistance and Hazard Mitigation disaster under the authority of the ACTION: Notice. Assistance.) Robert T. Stafford Disaster Relief and (Catalog of Federal Domestic Assistance No. SUMMARY: This notice amends the notice Emergency Assistance Act (42 U.S.C. 83.516, Disaster Assistance.) of a major disaster for the State of 5121 et seq.), as follows: Arkansas, (FEMA–1111–DR), dated William C. Tidball, I have determined that the damage in April 23, 1996, and related Associate Director, Response and Recovery certain areas of the State of Arkansas determinations. Directorate. resulting from severe storms and tornadoes EFFECTIVE DATE: April 26, 1996. [FR Doc. 96–11322 Filed 5–6–96; 8:45 am] on April 21–22, 1996, is of sufficient severity BILLING CODE 6718±02±P and magnitude to warrant a major disaster FOR FURTHER INFORMATION CONTACT: declaration under the Robert T. Stafford Pauline C. Campbell, Response and Disaster Relief and Emergency Assistance Act Recovery Directorate, Federal [FEMA±1110±DR] (‘‘the Stafford Act’’). I, therefore, declare that Emergency Management Agency, such a major disaster exists in the State of Washington, DC 20472, (202) 646–3606. Illinois; Major Disaster and Related Arkansas. SUPPLEMENTARY INFORMATION: Determinations In order to provide Federal assistance, you The notice are hereby authorized to allocate from funds of a major disaster for the State of AGENCY: Federal Emergency available for these purposes, such amounts as Arkansas, is hereby amended to include Management Agency (FEMA). the following areas among those areas you find necessary for Federal disaster ACTION: Notice. assistance and administrative expenses. determined to have been adversely Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Notices 20525

SUMMARY: This is a notice of the [FEMA±1110±DR] contracts, and personnel overtime that are Presidential declaration of a major required to clear one lane in each direction disaster for the State of Illinois (FEMA– Illinois; Amendment to Notice of a along snow emergency routes (or select 1110–DR), dated April 23, 1996, and Major Disaster Declaration primary roads in those communities without such designated roadways), and routes related determinations. AGENCY: Federal Emergency necessary to allow the passage of emergency EFFECTIVE DATE: April 23, 1996. Management Agency (FEMA). vehicles to hospitals, nursing homes, and FOR FURTHER INFORMATION CONTACT: ACTION: Notice. other critical facilities. Pauline C. Campbell, Response and (Catalog of Federal Domestic Assistance No. Recovery Directorate, Federal SUMMARY: This notice amends the notice 83.516, Disaster Assistance.) Emergency Management Agency, of a major disaster for the State of Dennis H. Kwiatkowski, Washington, DC 20472, (202) 646–3606. Illinois, (FEMA–1110–DR), dated April Deputy Associate Director, Response and SUPPLEMENTARY INFORMATION: Notice is 23, 1996, and related determinations. Recovery Directorate. hereby given that, in a letter dated April EFFECTIVE DATE: April 30, 1996. [FR Doc. 96–11319 Filed 5–6–96; 8:45 am] 23, 1996, the President declared a major FOR FURTHER INFORMATION CONTACT: BILLING CODE 6718±02±P disaster under the authority of the Pauline C. Campbell, Response and Robert T. Stafford Disaster Relief and Recovery Directorate, Federal Emergency Assistance Act (42 U.S.C. Emergency Management Agency, [FEMA±1095±DR] 5121 et seq.), as follows: Washington, DC 20472, (202) 646–3606. New York; Amendment to Notice of a I have determined that the damage in SUPPLEMENTARY INFORMATION: The notice Major Disaster Declaration certain areas of the State of Illinois, resulting of a major disaster for the State of from severe storms and tornadoes on April Illinois, is hereby amended to include AGENCY: Federal Emergency 18–19, 1996, is of sufficient severity and the following areas among those areas Management Agency (FEMA). magnitude to warrant a major disaster determined to have been adversely ACTION: Notice. declaration under the Robert T. Stafford affected by the catastrophe declared a Disaster Relief and Emergency Assistance Act major disaster by the President in his SUMMARY: This notice amends the notice (‘‘the Stafford Act’’). I, therefore, declare that declaration of April 23, 1996: of a major disaster for the State of New such a major disaster exists in the State of York, (FEMA–1095–DR), dated January Illinois. The Counties of Henry, Lake, and Marion 24, 1996, and related determinations. In order to provide Federal assistance, you for Individual Assistance, Public Assistance are hereby authorized to allocate from funds and Hazard Mitigation Assistance. EFFECTIVE DATE: April 25, 1996. available for these purposes, such amounts as (Catalog of Federal Domestic Assistance No. FOR FURTHER INFORMATION CONTACT: you find necessary for Federal disaster 83.516, Disaster Assistance.) Pauline C. Campbell, Response and assistance and administrative expenses. William C. Tidball, Recovery Directorate, Federal You are authorized to provide Individual Emergency Management Agency, Assistance, Public Assistance and Hazard Associate Director, Response and Recovery Mitigation in the designated areas. Consistent Directorate. Washington, DC 20472, (202) 646–3606. with the requirement that Federal assistance [FR Doc. 96–11324 Filed 5–6–96; 8:45 am] SUPPLEMENTARY INFORMATION: The notice be supplemental, any Federal funds provided BILLING CODE 6718±02±P of a major disaster for the State of New under the Stafford Act for Public Assistance York, is hereby amended to include the or Hazard Mitigation will be limited to 75 following areas among those areas percent of the total eligible costs. [FEMA±1109±DR] determined to have been adversely The time period prescribed for the Indiana; Amendment to Notice of a affected by the catastrophe declared a implementation of section 310(a), Major Disaster Declaration major disaster by the President in his Priority to Certain Applications for declaration of January 24, 1996: Public Facility and Public Housing AGENCY: Federal Emergency Onondaga and St. Lawrence Counties for Assistance, 42 U.S.C. 5153, shall be for Management Agency (FEMA). Hazard Mitigation Assistance (already a period not to exceed six months after ACTION: Notice. designated for Public Assistance). the date of this declaration. (Catalog of Federal Domestic Assistance No. Notice is hereby given that pursuant SUMMARY: This notice amends the notice 83.516, Disaster Assistance.) to the authority vested in the Director of of a major disaster for the State of Dennis H. Kwiatkowski, Indiana, (FEMA–1109–DR), dated April the Federal Emergency Management Deputy Associate Director, Response and Agency under Executive Order 12148, I 2, 1996, and related determinations. Recovery Directorate. hereby appoint Ron Sherman of the EFFECTIVE DATE: April 26, 1996. [FR Doc. 96–11318 Filed 5–6–96; 8:45 am] Federal Emergency Management Agency FOR FURTHER INFORMATION CONTACT: BILLING CODE 6718±02±P to act as the Federal Coordinating Pauline C. Campbell, Response and Officer for this declared disaster. Recovery Directorate, Federal I do hereby determine the following Emergency Management Agency, [FEMA±1107±DR] areas of the State of Illinois to have been Washington, DC 20472, (202) 646–3606. affected adversely by this declared Oregon; Amendment to Notice of a SUPPLEMENTARY INFORMATION: The notice Major Disaster Declaration major disaster: of a major disaster for the State of Champaign and Macon Counties for Indiana, is hereby amended to include AGENCY: Federal Emergency Individual Assistance, Public Assistance and the following areas among those areas Management Agency (FEMA). Hazard Mitigation. determined to have been adversely ACTION: Notice. (Catalog of Federal Domestic Assistance No. affected by the catastrophe declared a 83.516, Disaster Assistance.) major disaster by the President in his SUMMARY: This notice amends the notice James L. Witt, declaration of April 2, 1996: of a major disaster for the State of Director. The counties of Clay, Franklin, Parke, Oregon, (FEMA–1107–DR), dated March [FR Doc. 96–11323 Filed 5–6–96; 8:45 am] Perry, Montgomery, and Switzerland for 19, 1996, and related determinations. BILLING CODE 6718±02±P reimbursement for the costs of equipment, EFFECTIVE DATE: April 24, 1996. 20526 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Notices

FOR FURTHER INFORMATION CONTACT: interests, or unsound banking practices’’ considered in acting on the notices are Pauline C. Campbell, Response and (12 U.S.C. 1843). Any request for set forth in paragraph 7 of the Act (12 Recovery Directorate, Federal a hearing must be accompanied by a U.S.C. 1817(j)(7)). Emergency Management Agency, statement of the reasons a written The notices are available for Washington, DC 20472, (202) 646–3606. presentation would not suffice in lieu of immediate inspection at the Federal SUPPLEMENTARY INFORMATION: The notice a hearing, identifying specifically any Reserve Bank indicated. Once the of a major disaster for the State of questions of fact that are in dispute, notices have been accepted for Oregon, is hereby amended to include summarizing the evidence that would processing, they will also be available the following areas among those areas be presented at a hearing, and indicating for inspection at the offices of the Board determined to have been adversely how the party commenting would be of Governors. Interested persons may affected by the catastrophe declared a aggrieved by approval of the proposal. express their views in writing to the major disaster by the President in his Unless otherwise noted, nonbanking Reserve Bank indicated for that notice declaration of March 19, 1996: activities will be conducted throughout or to the offices of the Board of the United States. Governors. Comments must be received Clatsop and Washington Counties for Unless otherwise noted, comments not later than May 21, 1996. Public Assistance and Hazard Mitigation. regarding each of these applications A. Federal Reserve Bank of St. Louis (Catalog of Federal Domestic Assistance No. must be received at the Reserve Bank (Randall C. Sumner, Vice President) 411 83.516, Disaster Assistance.) indicated or the offices of the Board of Locust Street, St. Louis, Missouri 63166: Dennis H. Kwiatkowski, Governors not later than May 31, 1996. 1. F. Gilbert Bickel, III and Martha W. Deputy Associate Director, Response and A. Federal Reserve Bank of Bickel, of St. Louis, Missouri; to acquire Recovery Directorate. Richmond (Lloyd W. Bostian, Jr., Senior an additional 31.52 percent, for a total [FR Doc. 96–11317 Filed 5–6–96; 8:45 am] Vice President) 701 East Byrd Street, of 35.61 percent of the voting shares of BILLING CODE 6718±02±P Richmond, Virginia 23261: St. Johns Bancshares, Inc., St. Louis, 1. Rowan Bancorp, Inc., China Grove, Missouri, and thereby indirectly acquire North Carolina; to become a bank St. Johns Bank & Trust Company, St. FEDERAL RESERVE SYSTEM holding company by acquiring 100 Louis, Missouri. percent of the voting shares of Rowan Formations of, Acquisitions by, and Board of Governors of the Federal Reserve Savings Bank, SSB, Inc., China Grove, System, May 1, 1996. Mergers of Bank Holding Companies North Carolina. Jennifer J. Johnson, B. Federal Reserve Bank of Atlanta The companies listed in this notice (Zane R. Kelley, Vice President) 104 Deputy Secretary of the Board. have applied to the Board for approval, Marietta Street, N.W., Atlanta, Georgia [FR Doc. 96–11270 Filed 5–6–96; 8:45 am] pursuant to the Bank Holding Company 30303: BILLING CODE 6210±01±F Act of 1956 (12 U.S.C. 1841 et seq.) 1. Brookwood Group, Inc., Columbia, (BHC Act), Regulation Y (12 CFR part Tennessee; to become a bank holding 225), and all other applicable statutes company by acquiring 30.8 percent of DEPARTMENT OF HEALTH AND and regulations to become a bank the voting shares of Brookwood Group, HUMAN SERVICES holding company and/or to acquire the L.P., Columbia, Tennessee, and thereby assets or the ownership of, control of, or indirectly acquire The Middle Centers for Disease Control and the power to vote shares of a bank or Tennessee Bank, Columbia, Tennessee. Prevention bank holding company and all of the C. Federal Reserve Bank of St. Louis banks and nonbanking companies (Randall C. Sumner, Vice President) 411 The National Center for Health owned by the bank holding company, Locust Street, St. Louis, Missouri 63166: Statistics (NCHS), Centers for Disease including the companies listed below. 1. F. Gilbert Bickel, III, L.C., St. Louis, Control and Prevention (CDC), The applications listed below, as well Missouri; to become a bank holding Announces the Following Meeting as other related filings required by the company by acquiring 86.3 percent of Name: ICD–9–CM Coordination and Board, are available for immediate the voting shares of St. Johns Maintenance Committee. inspection at the Federal Reserve Bank Bancshares, Inc., St. Louis, Missouri, Time and Date: 9 a.m.–5 p.m., June 6, indicated. Once the application has and thereby indirectly acquire St. Johns 1996. been accepted for processing, it will also Bank and Trust Company, St. Louis, Place: Room 703A, Hubert H. Humphrey be available for inspection at the offices Missouri. Building, 200 Independence Avenue, SW, of the Board of Governors. Interested Washington, DC 20201. Board of Governors of the Federal Reserve persons may express their views in Status: Open. System, May 1, 1996. Purpose: The ICD–9–CM Coordination and writing on the standards enumerated in Jennifer J. Johnson, the BHC Act (12 U.S.C. 1842(c)). If the Maintenance Committee will be holding its Deputy Secretary of the Board. first meeting of the year. This meeting is a proposal also involves the acquisition of public forum for the presentation of proposed a nonbanking company, the review also [FR Doc. 96–11269 Filed 5–6–96; 8:45 am] BILLING CODE 6210±01±F modifications to the International includes whether the acquisition of the Classification of Diseases, ninth-revision, nonbanking company complies with the clinical modification. standards in section 4 of the BHC Act, Change in Bank Control Notices; Notice: In the interest of security, the including whether the acquisition of the Department has instituted stringent Acquisitions of Shares of Banks or procedures for entrance into the Hubert H. nonbanking company can ‘‘reasonably Bank Holding Companies be expected to produce benefits to the Humphrey building by non-government public, such as greater convenience, The notificants listed below have employees. Thus, persons without a government identification card should plan increased competition, or gains in applied under the Change in Bank to arrive at the building either between 8:30 efficiency, that outweigh possible Control Act (12 U.S.C. 1817(j)) and § and 9 a.m. or 12:30 and 1 p.m. so they can adverse effects, such as undue 225.41 of the Board’s Regulation Y (12 be escorted to the meeting room. Entrance to concentration of resources, decreased or CFR 225.41) to acquire a bank or bank the meeting at other times during the day unfair competition, conflicts of holding company. The factors that are cannot be assured. Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Notices 20527

Contact Person for More Information: Food and Drug Administration hearing, May 23, 1996, 7:30 a.m. to 9 Substantive program information may be a.m., unless public participation does obtained from Donna Pickett, Co-chair, ICD– Advisory Committee; Notice of Meeting not last that long; open committee 9–CM Coordination and Maintenance discussion, 9 a.m. to 5 p.m.; Andrew Committee, NCHS, CDC, Room 1100, AGENCY: Food and Drug Administration, HHS. Novick, Center for Devices and Presidential Building, 6525 Belcrest Road, Radiological Health (HFZ–410), Food ACTION: Hyattsville, Maryland 20782, telephone 301/ Notice. and Drug Administration, 9200 436–7050, extension 142. SUMMARY: This notice announces a Corporate Blvd., Rockville, MD 20850, Dated: April 30, 1996. forthcoming meeting of a public 301–594–1296, or FDA Advisory Carolyn J. Russell, advisory committee of the Food and Committee Information Hotline, 1–800– Director, Management Analysist and Services Drug Administration (FDA). This notice 741–8138 (301–443–0572 in the Office, Centers for Disease Control and also summarizes the procedures for the Washington, DC area), Orthopedic and Prevention (CDC). meeting and methods by which Rehabilitation Devices Panel, code [FR Doc. 96–11284 Filed 5–6–96; 8:45 am] interested persons may participate in 12521. Please call the hotline for BILLING CODE 4160±18±M open public hearings before FDA’s information concerning any possible advisory committees. changes. FDA has established an Advisory General function of the committee. National Committee on Vital and Health Committee Information Hotline (the The committee reviews and evaluates Statistics (NCVHS) Subcommittee on hotline) using a voice-mail telephone data on the safety and effectiveness of Health Statistics for Minority and other system. The hotline provides the public marketed and investigational devices Special Populations: Meeting with access to the most current and makes recommendations for their information on FDA advisory committee regulation. Pursuant to Pub. L. 92–463, the meetings. The advisory committee Agenda—Open public hearing. National Center for Health Statistics hotline, which will disseminate current Interested persons may present data, (NCHS), Centers for Disease Control and information and information updates, information, or views, orally or in Prevention (CDC), announces the can be accessed by dialing 1–800–741– writing, on issues pending before the following subcommittee meeting. 8138 or 301–443–0572. Each advisory committee. Those desiring to make committee is assigned a 5-digit number. formal presentations should notify the Name: NCVHS Subcommittee on Health This 5-digit number will appear in each contact person before May 15, 1996, and Statistics for Minority and Other Special individual notice of meeting. The submit a brief statement of the general Populations. nature of the evidence or arguments Time and Date: 1 p.m.–4 p.m., June 3, hotline will enable the public to obtain information about a particular advisory they wish to present, the names and 1996. addresses of proposed participants, and Place: Room 503A, Hubert H. Humphrey committee by using the committee’s 5- digit number. Information in the hotline an indication of the approximate time Building, 200 Independence Avenue, SW, required to make their comments. Washington, DC 20201. is preliminary and may change before a meeting is actually held. The hotline Open committee discussion. On May Status: Open. 23, 1996, the committee will discuss Purpose: The Subcommittee will discuss will be updated when such changes are and vote on two premarket approval topics such as race and ethnicity data for made. applications for intervertebral body both Medicare and Medicaid managed care MEETING: The following advisory fusion devices. populations, State multiracial legislation, committee meeting is announced: Asian/Pacific Islander Summit data, and an Closed committee deliberations. On update on the review of Federal standards for Orthopedic and Rehabilitation Devices May 22, 1996, FDA staff will present to race and ethnicity data. Panel of the Medical Devices Advisory the committee trade secret and/or Notice: In the interest of security, the Committee confidential commercial information Department has instituted stringent regarding present and future FDA procedures for entrance to the Hubert H. Date, time, and place. May 22, 1996, issues. This portion of the meeting will Humphrey Building by non-government 3 p.m., and May 23, 1996, 7:30 a.m., be closed to permit discussion of this employees. Thus, persons without a Holiday Inn—Gaithersburg, Ballroom, information (5 U.S.C. 552b(c)(4)). government identification card should plan Two Montgomery Village Ave., Each public advisory committee to arrive at the building between 12:30 and Gaithersburg, MD. A limited number of meeting listed above may have as many 1 p.m. so they can be escorted to the meeting. overnight accommodations have been as four separable portions: (1) An open Entrance to the meeting at other times during reserved at the hotel. Attendees public hearing, (2) an open committee the day cannot be assured. requiring overnight accommodations discussion, (3) a closed presentation of Contact Persons for More Information: may contact the hotel at 301–948–8900 data, and (4) a closed committee Substantive program information as well as or 1–800–465–4329, and reference the deliberation. Every advisory committee summaries of the meeting and a roster of FDA Panel meeting block. Reservations meeting shall have an open public committee members may be obtained from will be confirmed at the group rate hearing portion. Whether or not it also Gail F. Fisher, Ph.D., Executive Secretary, based on availability. Attendees with a includes any of the other three portions NCVHS, NCHS, CDC, Room 1100, disability requiring special will depend upon the specific meeting Presidential Building, 6525 Belcrest Road, accommodations should contact John involved. The dates and times reserved Hyattsville, Maryland 20782, telephone 301/ 436–7050. Sellman, Sociometrics, Inc., 8300 for the separate portions of each Colesville Rd., suite 550, Silver Spring, committee meeting are listed above. Dated: April 30, 1996. MD 20910, 301–608–2151. The The open public hearing portion of Carolyn J. Russell, availability of appropriate each meeting shall be at least 1 hour Director, Management Analysis and Services accommodations cannot be assured long unless public participation does Office, Centers for Disease Control and unless prior notification is received. not last that long. It is emphasized, Prevention (CDC). Type of meeting and contact person. however, that the 1 hour time limit for [FR Doc. 96–11283 Filed 5–6–96; 8:45 am] Closed committee deliberations, May an open public hearing represents a BILLING CODE 4163±18±M 22, 1996, 3 p.m. to 5 p.m.; open public minimum rather than a maximum time 20528 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Notices for public participation, and an open (FACA) (5 U.S.C. app. 2, 10(d)), permits Dated: May 2, 1996. public hearing may last for whatever such closed advisory committee Michael A. Friedman, longer period the committee meetings in certain circumstances. Deputy Commissioner for Operations. chairperson determines will facilitate Those portions of a meeting designated [FR Doc. 96–11435 Filed 5–6–96; 8:45 am] the committee’s work. as closed, however, shall be closed for BILLING CODE 4160±01±F Public hearings are subject to FDA’s the shortest possible time, consistent guideline (subpart C of 21 CFR part 10) with the intent of the cited statutes. concerning the policy and procedures The FACA, as amended, provides that Health Care Financing Administration for electronic media coverage of FDA’s a portion of a meeting may be closed public administrative proceedings, where the matter for discussion involves Privacy Act of 1974; System of including hearings before public a trade secret; commercial or financial Records advisory committees under 21 CFR part information that is privileged or AGENCY: Department of Health and 14. Under 21 CFR 10.205, confidential; information of a personal Human Services (HHS), Health Care representatives of the electronic media nature, disclosure of which would be a Financing Administration (HCFA). may be permitted, subject to certain clearly unwarranted invasion of limitations, to videotape, film, or ACTION: Notice of proposal to alter an personal privacy; investigatory files existing system of records by: otherwise record FDA’s public compiled for law enforcement purposes; administrative proceedings, including Expanding the purpose of the system, information the premature disclosure of changing the name of the system, presentations by participants. which would be likely to significantly Meetings of advisory committees shall changing the name of the ‘‘Unique frustrate implementation of a proposed Physician Identification Number be conducted, insofar as is practical, in agency action; and information in accordance with the agenda published (UPIN)’’ to the ‘‘Unique Physician/ certain other instances not generally Practitioner Identification Number,’’ in this Federal Register notice. Changes relevant to FDA matters. in the agenda will be announced at the changing the structure of the UPIN, Examples of portions of FDA advisory beginning of the open portion of a adding tax identification numbers to the committee meetings that ordinarily may meeting. data fields, and adding a new routine Any interested person who wishes to be closed, where necessary and in use (number 10) to the system of records be assured of the right to make an oral accordance with FACA criteria, include for the release of data to Federal and presentation at the open public hearing the review, discussion, and evaluation state agencies. portion of a meeting shall inform the of drafts of regulations or guidelines or similar preexisting internal agency SUMMARY: HCFA is proposing to revise contact person listed above, either orally the systems notice for the ‘‘Medicare or in writing, prior to the meeting. Any documents, but only if their premature disclosure is likely to significantly Physician Identification and Eligibility person attending the hearing who does System (MPIES), ’’ System No. 09–70– not in advance of the meeting request an frustrate implementation of proposed agency action; review of trade secrets 0525. The following alterations will be opportunity to speak will be allowed to made to this system of records: make an oral presentation at the and confidential commercial or financial information submitted to the 1. The purpose statement for the hearing’s conclusion, if time permits, at system will be revised to better reflect the chairperson’s discretion. agency; consideration of matters involving investigatory files compiled the system’s expanded function. The The agenda, the questions to be new purpose of this system of records addressed by the committee, and a for law enforcement purposes; and review of matters, such as personnel will read as follows: ‘‘to maintain current list of committee members will unique identification of each physician, be available at the meeting location on records or individual patient records, where disclosure would constitute a practitioner, and medical group practice the day of the meeting. requesting and/or receiving Medicare Transcripts of the open portion of the clearly unwarranted invasion of personal privacy. reimbursement.’’ meeting may be requested in writing 2. The name of the system will be Examples of portions of FDA advisory from the Freedom of Information Office changed from the ‘‘Medicare Physician committee meetings that ordinarily shall (HFI–35), Food and Drug Identification and Eligibility System not be closed include the review, Administration, 5600 Fishers Lane, rm. (MPIES),’’ to the ‘‘Unique Physician/ discussion, and evaluation of general 12A–16, Rockville, MD 20857, Practitioner Identification Number preclinical and clinical test protocols approximately 15 working days after the (UPIN) System.’’ meeting, at a cost of 10 cents per page. and procedures for a class of drugs or 3. The name of the ‘‘Unique Physician The transcript may be viewed at the devices; consideration of labeling Identification Number (UPIN)’’ will be Dockets Management Branch (HFA– requirements for a class of marketed changed to the ‘‘Unique Physician/ 305), Food and Drug Administration, drugs or devices; review of data and Practitioner Identification Number.’’ 12420 Parklawn Dr., rm. 1–23, information on specific investigational Despite this amendment, the acronym Rockville, MD 20857, approximately 15 or marketed drugs and devices that have UPIN will not be changed because working days after the meeting, between previously been made public; Federal and state agencies and private the hours of 9 a.m. and 4 p.m., Monday presentation of any other data or and public insurance entities are through Friday. Summary minutes of information that is not exempt from familiar with the use of this acronym. the open portion of the meeting may be public disclosure pursuant to the FACA, 4. The structure of the UPIN identifier requested in writing from the Freedom as amended; and, deliberation to is being changed from a 6-digit of Information Office (address above) formulate advice and recommendations identifier to a 10-digit identifier so as to beginning approximately 90 days after to the agency on matters that do not uniquely identify all physicians, the meeting. independently justify closing. practitioners and medical group The Commissioner has determined for This notice is issued under section practices, and to rectify current the reasons stated that those portions of 10(a)(1) and (2) of the Federal Advisory problems with existing individualized the advisory committee meetings so Committee Act (5 U.S.C. app. 2), and identification systems. designated in this notice shall be closed. FDA’s regulations (21 CFR part 14) on 5. Tax identification numbers will be The Federal Advisory Committee Act advisory committees. collected and added to the data fields Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Notices 20529 maintained on all physicians, reimbursement.’’ Expanding the alphabetic and/or numeric characters. practitioners, and medical group purpose to include other health care Some carriers assign separate PINs to practices in this system. professionals and practitioners will the same physician providing medical 6. HCFA is also proposing to add a assist HCFA in identifying billers and in services in more than one locality, office new routine use (number 10) to this determining the appropriate amount to or practice, and lack the capability to system notice for the release of data to pay for Medicare services. cross-reference the PINs and related other Federal and state agencies. A practitioner includes, but is not physician data (e.g., group affiliation). EFFECTIVE DATE: HCFA filed a new limited to, a physical therapist, certified Other carriers maintain a single PIN system report with the Chairman of the registered nurse anesthetist, certified or cross-referenced PINs for each Committee on Government Reform and registered nurse midwife, physician physician practicing within the carrier’s Oversight of the House of assistant, occupational therapist, geographic area of responsibility. Since Representatives, the Chairman of the audiologist, family nurse practitioner, physicians, groups, and practitioners Committee on Governmental Affairs of anesthesia assistant, mammography can furnish medical services as well as the Senate, and the Administrator, screening center, ambulance service bill for these services from several Office of Information and Regulatory supplier, portable x-ray supplier, locations or states which are in different Affairs, Office of Management and independent physiological laboratory, carrier jurisdictions, the independent Budget (OMB) on May 1, 1996. To clinical social worker, psychologist, providers who have been found to be ensure that all parties have adequate nurse practitioner, certified clinical ineligible for Medicare payments in one time in which to comment, the revised nurse specialist or any other practitioner area, location or state could move to a system of records, including routine as may be specified by the Secretary as different location or state in order to uses, will become effective 40 days from defined in Social Security Act sections receive inappropriate or illegal the publication of this notice or from the 1861(r) and 1877(h)(4). payment. date it is submitted to OMB and the A medical group practice is defined as In order to rectify the problems Congress, whichever is later, unless a group of two or more physicians inherent in these individualized HCFA receives comments which require legally organized as a partnership, identification systems, HCFA proposes alterations to this notice. professional corporation, foundation, to expand the national registry of not-for-profit corporation, faculty physicians under Congressional ADDRESS: Please address comments to: practice plan, or similar association (A) mandate, (section 1842(r) of the Social Richard A. DeMeo, HCFA Privacy Act In which each physician who is a Security Act, (42 U.S.C. 1395u(r))) so as Officer, Freedom of Information and member of the group provides to identify physicians, practitioners and Privacy Office, Associate Administrator substantially the full range of services medical group practices deemed eligible for External Affairs (AAEA), Health Care which the physician routinely provides for Medicare payments and to maintain Financing Administration, Room C2– (including medical care, consultation, more comprehensive data on provider 26–21, 7500 Security Boulevard, diagnosis, or treatment) through the credentials. Baltimore, Maryland 21244–1850. joint use of shared office space, This initiative will also support the Comments received will be available for facilities, equipment, and personnel; (B) Medicare Transaction System (MTS) examination at this location. for which substantially all of the development effort. MTS is a single, FOR FURTHER INFORMATION CONTACT: services of the physicians who are national, government owned, standard, Gerald Wright, Provider Enrollment members of the group are provided integrated claims processing system that Unit, Office of Program Requirements, through the group and are billed in the will perform automated claims Bureau of Program Operations, Health name of the group and amounts so processing functions for Part A and Part Care Financing Administration, Room received are treated as receipts of the B Medicare claims. HCFA must, S1–04–20, 7500 Security Boulevard, group; (C) in which overhead expenses therefore, build a national Medicare Baltimore, Maryland 21244–1850. His of, and the income from the practice are database of provider information, to be telephone number is (410) 786–5798. distributed in accordance with methods known as the MTS Provider File, in SUPPLEMENTARY INFORMATION: In 1988, previously determined by members of order to support all MTS functions. HCFA established a new system of the group; and (D) which meets other The MTS Provider File would retain records, under the authority of section standards such as the Secretary may all provider information in a standard 1842(r) of the Social Security Act Pub. impose by regulation to implement format so as to facilitate Medicare L. 101–508, 42 U.S.C. 1395u(r)), to section 1877(h)(4) of the Social Security functions, both internal and external to maintain a UPIN for each physician who Act. MTS. provides services for which payment is Section 1871(a)(1) of the Act provides The Medicare Provider Database made under Medicare. Notice of this that the Secretary shall prescribe such would uniquely identify and enumerate system, the ‘‘Medicare Physician regulations as may be necessary to carry all Medicare providers and would Identification and Eligibility System out the administration of the insurance provide summary information to (MPIES),’’ HHS/HCFA/BPO, no. 09–70– program under this title (XVIII). Section support MTS functions. In order to 0525, was most recently published on 1833(d) of the Act prohibits making develop that capability, HCFA is June 10, 1989 in the Federal Register. payment under part B for services proposing to expand the UPIN system to This system contains records of all which are payable under Part A. By provide identifying numbers for physicians, as defined by § 1861(r) of uniquely identifying Part B health physicians, practitioners and medical Title XVIII of the Social Security Act, professionals, practitioners, and groups group practices. who provide services for which we believe we will eliminate the At this time, HCFA is also proposing payment is made under Medicare. possibility of duplicate payments. to change the name of this system to At this time, HCFA is proposing to Medicare carriers currently identify better reflect the system’s expanded expand the purpose of this system of physicians, practitioners, and groups purpose. We are proposing to change records: ‘‘to maintain unique using their own systems of assigned the name of this system from the identification of each physician, numbers. These individualized systems ‘‘Medicare Physician Identification and practitioner, and medical group practice allow for Physician Identification Eligibility System (MPIES),’’ System No. requesting and/or receiving Medicare Numbers (PINs) ranging from four to 16 09–70–0525, to the ‘‘Unique Physician/ 20530 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Notices

Practitioner Identification Number in the performance of services and in information. Records will not be (UPIN) System.’’ This system will now the referral of patients for other services retrieved by tax identification numbers. be referred to as the UPIN system. or ordering of other services or Records are retrieved alphabetically by HCFA is proposing to change the suppliers. This requires laboratories and an individual’s or group’s name or name and structure of the unique durable medical equipment (DME) UPIN. Any uses of social security identifier from ‘‘Unique Physician suppliers, as well as consulting numbers in data identification, retrieval, Identification Numbers (UPIN)’’ to physicians, to show on the Medicare and analysis are in full compliance with ‘‘Unique Physician/Practitioner claim form the UPIN of the ordering or section 7 of the Privacy Act. Data Identification Numbers.’’ HCFA will referring physician. identification at the individual level is continue to use the acronym UPIN HCFA will continue to publish an necessary to link information collected because Federal and state agencies, as annual hard copy directory of UPINs for by HCFA to other data records in order well as private and public insurance physicians which will assist in the to further the operation and entities are familiar with its use. identification of an ordering or referring effectiveness of the Medicare program. The structure of the UPIN will be physician. The directory will include Also at this time, HCFA is proposing changed from a 6-digit alphanumeric the names, credentials, state licensed in, to add a new routine use (number 10) identifier to a 10-digit alphanumeric zip code, provider numbers, specialty, to this systems notice for the release of identifier. It will have a 6-digit base and business addresses of all listed data to other Federal and state agencies. (who) identifier along with a 4-digit physicians. HCFA will publish only the The Privacy Act (5 U.S.C. 552a) permits location (where) identifier. 6-digit base number in the directory at us to disclose information about an These changes will enable HCFA to this time. The UPINs of practitioners individual without consent of the determine the location where the and medical groups as well as the 4- individual for ‘‘routine uses,’’ that is, service was rendered and to decide digit location identifiers will not be disclosure is permitted for purposes that whether a physician, practitioner and published in the annual hard copy of are compatible with the purpose for group practice whose services are billed the UPIN directory because these which we have collected the to the program, is entitled to Medicare numbers will not be used for claims information. reimbursement. The 4-digit location processing, are temporary, transitional The new proposed routine use would identifier for physicians and the 10-digit internal-control numbers to assist HCFA permit release of data to other Federal UPINs assigned to practitioners and to transfer locally-assigned carrier and to state agencies. This routine use medical groups will be used by numbers to the MTS claims processing has two purposes: First, disclosure Medicare only for internal use—to link system, will not fit on existing billing would be permitted to other Federal and locally assigned providers to a national forms, and may cause confusion as to to state agencies to enhance the provider identifier. which numbers should be noted on the accuracy of Medicare’s payment of Carriers will continue to use their claim form. The 10-digit UPINs of health benefits through improved locally assigned provider numbers in physician, practitioners and medical coordination of benefits and second, claims processing. Practitioners and groups will be published annually in an disclosure would be permitted to enable group practices will not need to use electronic version of the UPIN directory. other Federal and state agencies to their UPINs for claims reimbursement. Enrollment information will be fulfill their own Medicare-related Physicians, suppliers, and laboratories obtained from data currently available processing procedures. will continue to report the physicians’ in carrier systems. The data will be HCFA has recently received a number base 6-digit identifier for ordering and researched, verified, and complied by of requests from other Federal agencies, referring requirements. carriers before submission to HCFA for e.g., the Department of Labor, Veterans The UPIN expansion will increase assignment of UPINs. Duplicate data for Affairs (Office of Civilian Health and system standardization, identify two or more providers will be Medical Programs of the Uniformed providers across lines, facilitate investigated by the carrier to determine Services), and from state Medicaid development of provider data to support if the identified providers are the same agencies, asking for help in coordinating MTS, and permit HCFA to respond or different individuals. Once assured benefits and fulfilling their own timely to and Federal initiative to that no duplication exists, HCFA will Medicare-related processing procedures. implement standard, universal health notify each carrier of the assigned To fulfill these requests requires the care provider identifiers. UPINs. The carriers will issue the UPINs release of data from the UPIN system. A Section 4164 (c) of the Omnibus to physicians, practitioners, and group primary purpose of the Medicare Budget Reconciliation Act (OBRA) of practices. program, for which this system of 1990 requires HCFA to ‘‘publish a HCFA is also proposing to add the records was established, is to assure directory of the unique physician collection of tax identification numbers high quality and effective health care to identification numbers (UPIN) of all to the data maintained on physicians, Medicare beneficiaries. We believe that physicians providing services for which practitioners, and medical group this purpose can be better accomplished payment may be made under Part B of practices in this system. Carriers will be through coordination of provider data Title XVIII of the Social Security Act required to provide tax identification between and among other Federal and and shall include in such directory the numbers (e.g., social security or state agencies. The proposed new names, provider numbers, and business employee identification number) for all routine use in the revised system meets addresses of all listed physicians.’’ The physicians, practitioners, and groups to the compatibility criteria, inasmuch as modification and expansion of the UPIN the UPIN system. Tax identification the information is collected for System will enable HFCA to execute numbers are needed to assure accurate administering payments to providers in regulations found at 42 Code of Federal identification of carriers’ physician, accordance with Title XVIII of the Regulations (CFR) 421.200 et seq., as practitioner, and group records. Social Security Act. We anticipate that well as the provisions of section 6204(b) The tax identification number disclosure under the routine use will of OBRA 1989 (section 1833(q) of the provided by a carrier should be the one not result in any unwarranted adverse Act) which help HCFA identify reported to the Internal Revenue Service effects on personal privacy. utilization patterns that deviate from and used in HCFA’s 1099 program. The routine use will be numbered (10) professionally-established norms, both Carriers are currently collecting this and will read as follows: Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Notices 20531

(10) To another Federal or a state Health Resources and Services Date and Time: June 9–12, 1996; 3:00 p.m. agency to: (1) Contribute to the accuracy Administration Place: Tamarron Hilton, 40290 U.S. of HCFA’s proper payment of Medicare Highway 550 North, Durango, CO 81301 Advisory Council; Notice of Meeting (970) 259–2000 FAX (970) 259–0745 health benefits, or (2) enable such The meeting is open to the public. agency to administer a Federal or state In accordance with section 10(a)(2) of Agenda: The meeting will begin on health benefits program, or as necessary the Federal Advisory Committee Act Sunday, June 9, with a working session for to enable such agency to fulfill a (Public Law 92–463), announcement is the Health Care Financing and Education and requirement of a Federal or state statute made of the following National Health Services Work Groups and a or regulation, if HCFA: legislative update. The plenary session will Advisory bodies scheduled to meet begin at 8:30 a.m. on Monday, June 10, with a. Determines that the use or during the month of June 1996. topics including a discussion of Employee disclosure does not violate legal Name: Advisory Commission on Retirement Income Security Act, Medicaid, limitations under which the data were Childhood Vaccines (ACCV). and the Colorado Rural Perspective. On provided, collected, or obtained; Date and Time: June 6–7, 9:00 am–5:00 Tuesday, June 11, there will be a site visit to Shiprock, NM, with transportation provided. b. Determines that the purpose for p.m. Place: Parklawn Building, Conference Individuals interested in participating in the which the disclosure is be made cannot Rooms G & H, 5600 Fishers Lane, Rockville, site visit should contact Arlene Granderson reasonably be accomplished unless the Maryland 20857. at (301) 443–0613. data are provided in individually The meeting is open to the public. The meeting will convene at 8:30 a.m. on identifiable form; Agenda: The full Commission will meet on Wednesday, June 12. Adjournment is Thursday, June 6 from 9:00 a.m. to 5:00 p.m. anticipated by 12:30 p.m. c. Requires the recipient to: and Friday, June 7 from 9:00 am. to 12:00 Anyone requiring information regarding (1) Establish reasonable noon. Agenda items will include, but not be the subject Committee should contact Dena administrative, technical, and physical limited to: a report on the National Vaccine S. Puskin, Executive Secretary, National Program; a report on the Advisory Committee Advisory Committee on Rural Health, Health safeguards to prevent unauthorized use Resources and Services Administration, or disclosure of the record; on Immunization Practices’ (ACIP) Polio Vaccine Policy; a report on the Acellular Room 9–05, Parklawn Building, 5600 Fishers (2) Make no further use or disclosure Pertussis Vaccines Symposium; a report on Lane, Rockville, Maryland 20857, Telephone of the record except: Vaccine-Associated Paralytic Poliomeyelitis; (301) 443–0835, FAX (301) 443–2803. an update on the Centers of Disease Control Persons interested in attending any portion (a) In emergency circumstances and Prevention and Food and Drug of the meeting should contact Ms. Arlene affecting the health or safety of any Administration’s Vaccine Safety Activities; Granderson or Lisa Shelton, Office of Rural individual; report of the Vaccine Safety Subcommittee; Health Policy, Health Resources and Services Administration, Telephone (301) 443–0835. (b) For use on another project under and routine Program reports. the same conditions and with written Public comment will be permitted before Name: Material and Child Health Research noon and/or at the end of the Commission Grants Review Committee. authorization from HCFA; and meeting, as time permits. Oral presentations Date and Time: June 12–14, 1996, 9:00 a.m. (c) When required by law; will be limited to 5 minutes per public Place: Conference Room ‘‘O’’, Parklawn speaker. Building, 5600 Fishers Lane, Rockville, (d) Secures a written statement Persons interested in providing an oral Maryland 20857. attesting to the next recipient’s presentation should submit a written request, Open on June 12, 1996, 9:00 a.m.—10:00 understanding of, and willingness to along with a copy of their presentation to Mr. a.m. abide by the following provisions: Jerry Anderson, Principal Staff Liaison, Closed for remainder of meeting Division of Vaccine Injury Compensation, Agenda: The open portion of the meeting (1) Not to use the data for purposes Bureau of Health Professions, Health will cover opening remarks by the Director, other than those for which the data were Resources and Services Administration, Division of Science, Education and Analysis, disclosed; Room 8A–35, 5600 Fishers Lane, Rockville, Maternal and Child Health Bureau, who will (2) Not to publish or otherwise MD 20852; Telephone (301) 443–6593. report on program issues, congressional disclose the data in a form raising Requests should contain the name, activities and other topics of interest to the address, telephone number, and any business field of maternal and child health. The unacceptable possibilities that or professional affiliation of the person meeting will be closed to the public on June individuals could be identified (i.e., the desiring to make an oral presentation. Groups 12 at 10:00 a.m. for the remainder of the data must not be individual-specific and having similar interests are requested to meeting for the review of grant applications. must be aggregated to a level where no combine their comments and present them The closing is in accordance with the data cells have 10 or fewer individuals); through a single representative. The provisions set forth in section 552b(c)(6), and allocation of time may be adjusted to Title 5 U.S.C., and the Determination by the accommodate the level of expressed interest. Associate Administrator for Policy (3) Not to publish any aggregation of The Division of Vaccine Injury Compensation Coordination, Health Resources and Services the data without HCFA’s approval. will notify each presenter by mail or Administration, pursuant to Public Law 92– The proposed new routine use for the telephone of their assigned presentation time. 463. Persons who do not file an advance request Anyone requiring information regarding MPIES (hereafter UPIN) system is for presentation, but desire to make an oral the subject Council should contact Gontran consistent with the Privacy Act, 5 U.S.C. statement, may sign up in Conference Room Lamberty, Dr.P.H., Executive Secretary, 552a(a)(7), since it is compatible with G and H before 10:00 on June 6–7. These Maternal and Child Health Research Grants the purpose for which the data were persons will be allocated time as time Review Committee, Room 18A–55, Parklawn collected. We are publishing the notice permits. Building, 5600 Fishers Lane, Rockville, in its entirety below for the convenience Anyone requiring information regarding Maryland 20857, Telephone (301) 443–2190. of the reader. the Commission should contact Mr. Agenda Items are subject to change as Anderson, Division of Vaccine Injury priorities dictate. Dated: April 30, 1996. Compensation, Bureau of Health Professions, Dated: May 2, 1996. Health Resources and Services Bruce C. Vladeck, Jackie E. Baum, Administration, Room 8A–35, 5600 Fishers Administrator, Health Care Financing Lane, Rockville, Maryland 20852; Telephone Advisory Committee Management Officer, Administration. (301) 443–6593. HRSA. [FR Doc. 96–11260 Filed 5–6–96; 8:45 am] Name: National Advisory Committee on [FR Doc. 96–11305 Filed 5–6–96; 8:45 am] BILLING CODE 4120±03±M Rural Health. BILLING CODE 4160±15±M 20532 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Notices

National Institutes of Health notice is to allow an additional 30 days collected will be used to further for public comment. The National understanding of the effects of chronic Submission for OMB Review; Institutes of Health may not conduct or occupational exposure to pesticides on Comment Request; Effect of Chronic sponsor, and the respondent is not neurological function and in the Occupational Exposure to Pesticides required to respond to an information assessment of public health concerns to on Neurological Function in collection that has been extended, occupational groups and the public. Farmworkers (Workers' Health Study) revised, or implemented on or after Frequently of Response: One time. October 1, 1995, unless it displays a Affected Public: Individuals or SUMMARY: Under the provisions of currently valid OMB control number. households; Farms. Type of Section 3506(c)(2)(A) of the Paperwork PROPOSED COLLECTION: Title: Effect of Respondents: Male and Female adult Reduction Act of 1995, the National Chronic Occupational Exposure to farmworkers and control subjects. The Institute of Environmental Health Pesticides on Neurological Function in annual reporting burden is as follows: Sciences (NIEHS), the National Farmworkers (Workers’ Health Study). Estimated Number of Respondents: 326 Institutes of Health (NIH) has submitted Type of Information Collection Request. Estimated Number of Responses per to the Office of Management and Budget NEW. Need and Use of Information (OMB) a request to review and approve Collection: This is a cross-sectional Respondent: 1.92; Average Burden the information collection listed below. study of 125 farmworkers exposed to Hours Per Response: 1.11; and This proposed information collection pesticides and 125 unexposed control Estimated Total Annual Burden Hours was previously published in the Federal subjects with other jobs matched for age, Requested: 692. The annualized cost to Register on November 3, 1995, pages sex, and ethnicity. There are few studies respondents is estimated at: $6,920.00. 55845–55846, and allowed 60-days for which document an association of There are no Capital Costs to report. public comment. No public comments subclinical neurological effects with There are no Operating or Maintenance were received. The purpose of this chronic exposure. The information Costs to report.

Estimated Estimated Estimated number of Average total annual Type of respondents number of responses burden burden respondents per re- hours per hours re- spondent response quested

Exposed farmworkers ...... 147 2.0204 1.1515 342 Control subjects ...... 179 1.8379 1.0639 350

Total ...... 326 ...... 692

REQUEST FOR COMMENTS: Written Desk Officer for NIH. To request more The NAEC meeting will be open to comments and/or suggestions from the information on the proposed project or the public on June 6 from 8:30 a.m. until public and affected agencies are invited to obtain a copy of the data collection approximately 11:30 a.m. Following on one or more of the following points: plans and instruments, contact: Dr. Freja opening remarks by the Director, NEI, (1) Whether the proposed collection of Kamel, Senior Staff Fellow, DIR, EBMP, there will be presentations by the staff information is necessary for the proper Epidemiology Branch, NIEHS, Bldg. of the Institute and discussions performance of the function of the 101, Room A357, Research Triangle concerning Institute programs and agency, including whether the Park, NC 27709, or call non-toll free policies. Attendance by the public at the information will have practical utility; number (919) 541–1581. open session will be limited to space (2) The accuracy of the agency’s available. COMMENTS DUE DATE: Comments estimate of the burden of the proposed In accordance with provisions set collection of information, including the regarding this information collection are best assured of having their full effect if forth in Secs. 552b(c)(4) and 552b(c)(6), validity of the methodology and Title 5, U.S.C. and Sec. 10(d) of Public received on or before June 6, 1996. assumptions used; (3) Ways to enhance Law 92–463, the meeting of the NAEC the quality, utility, and clarity of the Dated: April 5, 1996. will be closed to the public on June 6 information to be collected; and (4) Charles Leasure, from approximately 11:30 a.m. until Ways to minimize the burden of the Associate Director for Management, NIEHS. adjournment at approximately 5:00 p.m. collection of information on those who [FR Doc. 96–11352 Filed 5–6–96; 8:45 am] for the review, discussion, and are to respond, including the use of evaluation of individual grant BILLING CODE 4140±01±M appropriate automated, electronic, applications. These applications and the mechanical, or other technological discussions could reveal confidential collection techniques or other forms of Public Health Services trade secrets or commercial property information technology. such as patentable material, and DIRECT COMMENTS TO OMB: Written National Institutes of Health (NIH); personal information concerning comments and/or suggestions regarding Notice of the Meeting of the National individuals associated with the the item(s) contained in this notice, Advisory Eye Council applications, the disclosure of which especially regarding the estimated would constitute a clearly unwarranted public burden and associated response Pursuant to Pub. L. 92–463, notice is invasion of personal privacy. time, should be directed to the: Office hereby given of the meeting of the Ms. Lois DeNinno, Council Assistant, of Management and Budget, Office of National Advisory Eye Council (NAEC) National Eye Institute, EPS, Suit 350, Regulatory Affairs, New Executive on June 6, 1996, Executive Plaza North, 6120 Executive Boulevard, MSC–7164, Office Building, Room 10235, Conference Room G, 6130 Executive Bethesda, Maryland 20892–7164, (301) Washington, D.C. 20503, Attention: Boulevard, Bethesda, Maryland. 496–9110, will provide a summary of Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Notices 20533 the meeting, roster of committee as sign language interpretation or other Extramural Research Facilities Construction members, and substantive program reasonable accommodations, should Projects, National Institutes of Health) information upon request. Individuals contact the Scientific Review Dated: May 1, 1996. who plan to attend and need special Administrator listed below, in advance Susan K. Feldman, assistance, such as sign language of the meeting. Committee Management Officer, NIH. interpretation or other reasonable Name of Committee: National Center for [FR Doc. 96–11359 Filed 5–6–96; 8:45 am] accommodations, should contact Ms. Research Resources Initial Review Group— BILLING CODE 4140±01±M DeNinno in advance of the meeting. Comparative Medicine Review Committee. (Catalog of Federal Domestic Assistance Dates of Meeting: June 2–4, 1996. Program No. 93.867, Vision Research: Place of Meeting: One Washington Circle, National Center for Human Genome National Institutes of Health) Conference Center, One Washington Circle, Research; Amended Notice of Meeting NW., Washington, DC 20037, (202) 872–1680. Dated: May 1, 1996. of the National Advisory Council for Closed: June 2, 6:30 p.m.—Until recess. Susan K. Feldman, Open: June 3, 8:30 a.m.—10:00 a.m. Human Genome Research Committee Management Officer, NIH. Closed: June 3, 10:00 a.m.—until Notice is hereby given of a change in [FR Doc. 96–11356 Filed 5–6–96; 8:45 am] adjournment. the open session of the meeting of the BILLING CODE 4140±01±M Scientific Review Administrator: Dr. Raymond O’Neill, National Institutes of National Advisory Council for Human Health, 1 Rockledge Center, Room 6018, 6705 Genome Research, Holiday Inn, National Institutes of Health Rockledge Drive, MSC 7965, Bethesda, MD Washington/Chevy Chase, Palladian 20892–7965, Telephone: (301) 435–0820. East/Center, 5520 Wisconsin Avenue, National Center for Research Name of Committee: National Center for Chevy Chase, Maryland, notice of which Resources; Notice of Meetings Research Resources Initial Review Group— was published in the Federal Register Research Centers in Minority Institutions (61 FR 18397) on April 25, 1996. Pursuant to Pub. L. 92–463, notice is Review Committee. This meeting was scheduled to be hereby given of the meetings of the Date of Meeting: June 3, 1996. open to the public on Monday, May 20, Place of Meeting: Doubletree Hotel, Alpine National Center for Research Resources from 8:30 a.m. to 11:30. The open Initial Review Group and the Scientific Room, 1750 Rockville Pike, Rockville, MD 20852, (301) 468–1100. session will now begin at 9:30 a.m. to and Technical Review Board on approximately 12 noon. Biomedical and Behavioral Research Open: June 3, 8:30 a.m.—10:30 a.m. Closed: June 3, 10:30 a.m.—until Dated: May 1, 1996. Facilities, National Center for Research adjournment. Susan K. Feldman, Resources (NCRR) for June 1996. These Scientific Review Administrator: Dr. John meetings will be open to the public as Lymangrover, National Institutes of Health, 1 Committee Management Officer, NIH. indicated below, to discuss program Rockledge Center, Room 6018, 6705 [FR Doc. 96–11367 Filed 5–6–96; 8:45 am] planning; program accomplishments; Rockledge Drive, MSC 7965, Bethesda, MD BILLING CODE 4140±01±M administrative matters such as previous 20892–7965, Telephone: (301) 435–0820. meeting minutes; the report of the Name of Committee: Scientific and Director, NCRR; review of budget and Technical Review Board on Biomedical and National Heart, Lung, and Blood legislative updates; and special reports Behavioral Research Facilities. Institute; Notice of Meeting of Board of or other issues relating to committee Dates of Meeting: June 18–19, 1996. Scientific Counselors business. Attendance by the public will Place of Meeting: Holiday Inn, Georgia be limited to space available. Room, 8120 Wisconsin Avenue, Bethesda, Pursuant to Pub. L. 92–463, notice is MD 20814, (301) 562–2000. hereby given of the meeting of the Board These meetings will be closed to the Open: June 18, 8:00 a.m.—8:30 a.m. public as indicated below in accordance of Scientific Counselors, National Heart, Closed: June 18, 8:30 a.m.—until Lung, and Blood Institute at 8:30 a.m. with provisions set forth in secs. adjournment. 552b(c)(4) and 552b(c)(6), Title 5, U.S.C. Scientific Review Administrator: Dr. Jill on June 6–7, 1996, National Institutes of and sec. 10(d) of Pub. L. 92–463, for the Carrington, National Institutes of Health, 1 Health, 9000 Rockville Pike, Building review, discussion and evaluation of Rockledge Center, Room 6018, 6705 10, Room 7S235, Bethesda, Maryland individual grant applications. These Rockledge Drive, MSC 7965, Bethesda, MD 20892. applications and the discussions could 20892–7965, Telephone: (301) 435–0822. In accordance with the provisions set reveal confidential trade secrets or Name of Committee: National Center for forth in sec. 552b(c)(6), Title 5, U.S.C. commercial property such as patentable Research Resources Initial Review Group— and sec. 10(d) of Pub. L. 92–463, the material, and personal information General Clinical Research Centers Review entire meeting will be closed to the Committee. concerning individuals associated with public for the review, discussion and Dates of Meeting: June 19–20, 1996. evaluation of individual programs and the applications, the disclosure of Place of Meeting: Holiday Inn, Pallidian which would constitute a clearly East, 5520 Wisconsin Avenue, Chevy Chase, projects conducted by the National unwarranted invasion of personal MD 20815, (301) 658–1500. Institutes of Health, including privacy. Open: June 19, 8:00 a.m.—9:00 a.m. consideration of personnel Ms. Maureen Mylander, Public Affairs Closed: June 19, 9:00 a.m.—until qualifications and performance, the Officer, NCRR, National Institutes of adjournment. competence of individual investigators, Health, 1 Rockledge Center, Room 5146, Scientific Review Administrator: Dr. Bela J. and similar items, the disclosure of 6705 Rockledge Drive, MSC 7965, Gulyas, National Institutes of Health, 1 which would constitute a clearly Bethesda, Maryland 20892–7965, (301) Rockledge Center, Room 6018, 6705 unwarranted invasion of personal Rockledge Drive, MSC 7965, Bethesda, MD privacy. 435–0888, will provide summaries of 20892–7965, Telephone: (301) 435–0818. meetings and rosters of committee Dr. Edward D. Korn, Executive (Catalog of Federal Domestic Assistance members. other information pertaining Program Nos. 93.306, Laboratory Animal Secretary and Director, Division of to the meetings can be obtained from the Sciences and Primate Research; 93.333, Intramural Research, NHLBI, NIH, Scientific Review Administrator Clinical Research; 93.389, Research Centers Building 10, Room 7N214, (301) 496– indicated. Individuals who plan to in Minority Institutions; 93.167, Research 2116, will furnish substantive program attend and need special assistance, such Facilities Improvement Program; 93.214 information. 20534 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Notices

Dated: May 1, 1996. 552b(c)(4) and 552b(c)(6), Title 5, U.S.C. (Catalog of Federal Domestic Assistance Susan K. Feldman, Applications and the discussions could Programs Nos. 93.837, Heart and Vascular Committee Management Officer, NIH. reveal confidential trade secrets or Diseases Research; 93.838, Lung Diseases commercial property such as patentable Research; and 93.839, Blood Diseases and [FR Doc. 96–11355 Filed 5–6–96; 8:45 am] material and personal information Resources Research, National Institutes of BILLING CODE 4140±01±M concerning individuals associated with the Health) applications, the disclosure of which would Dated: May 1, 1996. constitute a clearly unwarranted invasion of Susan K. Feldman, National Heart, Lung, and Blood personal privacy. Committee Management Officer, NIH. Institute; Notice of Closed Meeting (Catalog of Federal Domestic Assistance [FR Doc. 96–11365 Filed 5–6–96; 8:45 am] Pursuant to Section 10(d) of the Programs Nos. 93.837, Heart and Vascular Diseases Research; 93.838, Lung Diseases BILLING CODE 4140±01±M Federal Advisory Committee Act, as Research; and 93.839, Blood Diseases and amended (5 U.S.C. Appendix 2), notice Resources Research, National Institutes of is hereby given of the following Initial Health) National Institute of Allergy and Review Group (IRG) meeting: Dated: May 1, 1996. Infectious Diseases; Notice of Meeting: Name of IRG: Clinical Trials Review Susan K. Feldman, Microbiology and Infectious Diseases Committee. Committee Management Officer, NIH. Research Committee Date: June 23–24, 1996. Time: 7:00 p.m. [FR Doc. 96–11364 Filed 5–6–96; 8:45 am] Pursuant to Pub. L. 92–463, notice is Place: Holiday Inn Chevy Chase, 5520 BILLING CODE 4140±01±M hereby given of the meeting of the Wisconsin Avenue, Chevy Chase, Maryland Microbiology and Infectious Diseases 20815. Research Committee, National Institute Contact Person: Dr. David M. Monsees, National Heart, Lung, and Blood of Allergy and Infectious Diseases, on 6701 Rockledge Drive, Rm. 7178, Bethesda, Institute; Notice of Meetings June 6–7, 1996, at the Holiday Inn Maryland 20892, (301) 435–0270. Gaithersburg, Washingtonian Room, 2 Purpose/Agenda: To review and evaluate Pursuant to Pub. L. 92–463, notice is Montgomery Village Avenue, Bethesda, grant applications. hereby given of the meeting of the Maryland. The meeting will be closed in accordance following Heart, Lung, and Blood The meeting will be open to the with the provisions set forth in secs. Special Emphasis Panels. 552b(c)(4) and 552b(c)(6), Title 5, U.S.C. public from 8 a.m. to 9 a.m. on June 6, Applications and the discussions could These meetings will be open to the to discuss administrative details relating reveal confidential trade secrets or public to provide concept review of to committee business and for program commercial property such as patentable proposed contract or grant solicitations. review. Attendance by the public will material and personal information Individuals who plan to attend and be limited to space available. In concerning individuals associated with the need special assistance, such as sign applications, the disclosure of which would accordance with the provisions set forth constitute a clearly unwarranted invasion of language interpretation or other in secs. 552b(c)(4) and 552b(c)(6), Title personal privacy. reasonable accommodations, should 5, U.S.C. and sec. 10(d) of Pub. L 92– (Catalog of Federal Domestic Assistance inform the Contact Persons listed below 463, the meeting will be closed to the Program Nos. 93.837, Heart and Vascular in advance of the meeting. public for the review, discussion, and Diseases Research; 93.838, Lung Diseases Name of Panel: Pediatric Cardiovascular evaluation of individual grant Research; and 93.839, Blood Diseases and Disease. applications and contract proposals Resources Research, National Institutes of Dates of Meeting: June 6, 1996. from 9 a.m. until recess on June 6, and Health) Time of Meeting: 9:00 a.m. from 8 a.m. until adjournment on June Dated: May 1, 1996. Place of Meeting: Wood Club Room B, 7. These applications, proposals and the Susan K. Feldman, Wood Building, Children’s Hospital of discussions could reveal confidential Committee Management Officer, NIH. Philadelphia, South 34th Street, Philadelphia, Pennsylvania. trade secrets or commercial property [FR Doc. 96–11363 Filed 5–6–96; 8:45 am] Agenda: Identify important areas of such as patentable material and BILLING CODE 4140±01±M research to be included in the next personal information concerning solicitation for SCORs in pediatric individuals associated with the cardiovascular disease. applications and proposals, the National Heart, Lung, and Blood Contact Person: Constance Weinstein, disclosure of which would constitute a Institute; Notice of Closed Meeting Ph.D, NIH/NHLBI/DHVD, Rockledge Center clearly unwarranted invasion of Two, Room 9144, 6701 Rockledge Drive, Pursuant to Section 10(d) of the personal privacy. Bethesda, Maryland 20892–7940, (301) 435– Ms. Claudia Goad, Committee Federal Advisory Committee Act, as 0510. amended (5 U.S.C. Appendix 2), notice Management Officer, National Institute Name of Panel: Lung Biology Disease. of Allergy and Infectious Diseases, Solar is hereby given of the following Initial Dates of Meeting: June 10–11, 1996. Review Group (IRG) meeting: Time of Meeting: 7:30 p.m. Building, Room 3C26, National Institutes of Health, Bethesda, Name of IRG: Heart, Lung, and Blood Place of Meeting: June 10-Ramada Inn, Program Project Review Committee. 1775 Rockville Pike, Rockville, Maryland Maryland, 301–496–7601, will provide a Date: June 20, 1996. 20852. June 11 (8:00 a.m.)—Prospect summary of the meeting and a roster of Time: 8:00 a.m. Associates, 1801 Rockville Pike, Suite 500, committee members upon request. Place: Holiday Inn Chevy Chase, 5520 Rockville, Maryland 20852. Individuals who plan to attend and Wisconsin Avenue, Chevy Chase, Maryland Agenda: To identify current issues in basic need special assistance, such as sign 20815. and clinical topics related to several language interpretation or other Contact Person: Dr. Jeffrey H. Hurst, 6701 programs in the Division of Lung Disease’s reasonable accommodations, should Rockledge Drive, Rm. 7208, Bethesda, Lung Biology and Disease Program for future Maryland 20892, (301) 435–0303. NHLBI-supported research contact Ms. Goad in advance of the Purpose/Agenda: To review and evaluate Contact Person: Dorothy B. Gail, Ph.D, meeting. program project grant applications. NIH/NHLBI/DLD, Rockledge Center Two, Dr. Gary Madonna, Scientific Review The meeting will be closed in accordance Room. 10018, 6701 Rockledge Drive, Administrator, Microbiology and with the provisions set forth in secs. Bethesda, Maryland 20892, (301) 435–0222. Infectious Diseases Research Committee, Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Notices 20535

NIAID, NIH, Solar Building, Room Ms. Mary Plummer, Executive Ms. Claudia Goad, Committee 4C21, Rockville, Maryland 20892, Secretary, NICHD, 6100 Executive Management Officer, National Institute telephone 301–496–3528, will provide Boulevard, Room 5E03, National of Allergy and Infectious Diseases, Solar substantive program information. Institutes of Health, Bethesda, Maryland Building, Room 3C26, National (Catalog of Federal Domestic Assistance 20892–7510, Area Code 301, 496–1485, Institutes of Health, Bethesda, Maryland Program No. 93.856, Microbiology and will provide a summary of the meeting 20892, 301–496–7601, will provide a Infectious Diseases Research, National and a roster of Council members as well summary of the meeting and a roster of Institutes of Health) as substantive program information. committee members upon request. Dated: May 1, 1996. Individuals who plan to attend the open Individuals who plan to attend and Susan K. Feldman, session and need special assistance, need special assistance, such as sign Committee Management Officer, NIH. such as sign language interpretation or language interpretation or other reasonable accommodations, should [FR Doc. 96–11357 Filed 5–6–96; 8:45 am] other reasonable accommodations, should contact Ms. Plummer. contact Ms. Goad in advance of the BILLING CODE 4140±01±M meeting. (Catalog of Federal Domestic Dr. Thomas J. Kindt, Executive Assistance Program Nos. 93.864, Secretary, Board of Scientific National Institute of Child Health and Population Research, and 93.865, Counselors, NIAID, National Institutes Human Development; Notice of Research for Mothers and Children, of Health, Building 10, Room 4A31, Meeting of the National Advisory Child National Institutes of Health) telephone 301–496–3006, will provide Health and Human Development Dated May 1, 1996. substantive program information. Council Susan K. Feldman, (Catalog of Federal Domestic Assistance Pursuant to Public Law 92–463, Committee Management Officer NIH. Program No. 93–301, National Institutes of notice is hereby given of the meeting of [FR Doc. 96–11358 Filed 5–6–96; 8:45 am] Health) the National Advisory Child Health and BILLING CODE 4140±01±M Dated: May 1, 1996. Human Development Council on June Susan K. Feldman, 3–4, 1996. The meeting will be held in Committee Management Officer, NIH. National Institute of Allergy and Building 31, Conference Room 10, [FR Doc. 96–11361 Filed 5–6–96; 8:45 am] Infectious Diseases; Notice of Meeting: National Institutes of Health, Bethesda, BILLING CODE 4140±01±M Maryland. The meeting of the Board of Scientific Counselors Subcommittee on Planning will be open Pursuant to Pub. L. 92–463, notice is on June 3. The Subcommittee meeting hereby given of the meeting of the Board National Institute of Allergy and will held in Building 31, Room 2A03, of Scientific Counselors, National Infectious Diseases; Notice of Meeting: from 8:00 a.m. to 10:00 a.m. to discuss Institute of Allergy and Infectious Allergy, Immunology, and program plans and the agenda for the Diseases, on June 17–19, 1996. The Transplantation Research Committee next Council meeting. Attendance by meeting will be held in the 4th Floor Pursuant to Pub. L. 92–463, notice is the public will be limited to space Conference Room, Building 4, National hereby given of the meeting of the available. Institutes of Health, 9000 Rockville Allergy, Immunology, and The Council meeting will be open to Pike, Bethesda, Maryland. Transplantation Research Committee on the public on June 3 from 10:00 a.m. The meeting will be open to the June 17–18, 1996, at the Georgetown until 5:00 p.m. The agenda includes a public on June 17 from 11 a.m. to 11:45 Holiday Inn, 2101 Wisconsin Avenue, report by the Director, NICHD, a report a.m. and from 1 p.m. to recess. On June N.W., Washington, D.C. by the Human Learning and Behavior 18 the meeting will be open from 9:30 The meeting will be open to the Branch, and a presentation on the a.m. until 12 p.m. During the open public from 8:30 a.m. to 9:45 a.m. on Interactive Research Project Grants sessions, the permanent staff of the June 17 to discuss administrative details Mechanism. The meeting will be open Laboratory of Cellular and Molecular relating to committee business and on June 4 upon completion of Immunology will present and discuss program review, and for a report from applications at approximately 12:30 their immediate, past and present the Director, Division of Extramural p.m. to adjournment if any policy issues research activities. Activities which will include a are raised which need further In accordance with the provisions set discussion of budgetary matters. discussion. forth in Sec. 552b(c)(6), Title 5, U.S.C. Attendance by the public will be limited In accordance with the provisions set and Sec. 10(d) of Pub. L. 92–463, the to space available. forth in sections 552(c)(4), and 552(c)(6), meeting will be closed to the public on In accordance with the provisions set Title 5, United States Code and section June 17 from 8:30 a.m. until 11 a.m., forth in secs. 552b(c)(4) and 552b(c)(6), 10(d) of Public Law 92–463, the meeting and from 11:45 a.m. until 1 p.m.; on Title 5, U.S.C. and sec. 10(d) of Pub. L. of the full Council will be closed to the June 18 from 8:30 a.m. until 9:30 a.m., 92–463, the meeting will be closed to public on June 4 from 8:00 a.m. to and from 12 p.m. until recess; and on the public for the review, discussion, approximately 12:30 p.m. for the June 19 from 8:30 a.m. until and evaluation of individual grant review, discussion, and evaluation of adjournment, for the review, discussion, applications and contract proposals individual grant applications. These and evaluation of individual intramural from 9:45 a.m. until recess on June 17, applications and the discussion could programs and projects conducted by the and from 8:30 a.m. until adjournment reveal confidential trade secrets or National Institute of Allergy and on June 18. These applications, commercial property such as patentable Infectious Diseases, including proposals, and the discussions could material, and personal information consideration of personal qualifications reveal confidential trade secrets or concerning individuals associated with and performance, the competence of commercial property such as patentable the applications, the disclosure of individual investigators, and similar material and personal information which would constitute a clearly items, the disclosure of which would concerning individuals associated with unwarranted invasion of personal constitute a clearly unwarranted the applications and proposals, the privacy. invasion of personal privacy. disclosure of which would constitute a 20536 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Notices clearly unwarranted invasion of Time: 9 a.m. Fishers Lane, Rockville, MD 20857, personal privacy. Place: Hampshire Hotel, 1310 New Telephone: 301, 443–6470. Ms. Claudia Goad, Committee Hampshire Ave., NW., Washington, DC Committee Name: Child/Adolescent Management Officer, National Institute 20036. Development, Risk, and Prevention Review of Allergy and Infectious Diseases, Solar Contact Person: Maureen L. Eister, Committee. Parklawn Building, Room 9–101, 5600 Building, Room 3C26, National Date: June 13–June 14, 1996. Fishers Lane, Rockville, MD 20857, Time: 9 a.m. Institutes of Health, Bethesda, Maryland Telephone: 301, 443–3936. 20892, 301–496–7601, will provide a Place: The Latham Hotel, 3000 M Street, Committee Name: Clinical N.W., Washington, DC 20007–3701. summary of the meeting and a roster of Psychopathology Review Committee. Contact Person: Phyllis D. Artis, Parklawn committee members upon request. Date: June 6–June 7, 1996. Building, Room 9C–26, 5600 Fishers Lane, Individuals who plan to attend and Time: 8:30 a.m. Rockville, MD 20857, Telephone Number: need special assistance, such as sign Place: Hyatt Regency Bethesda, One 301, 443–6470. Bethesda Metro Center, Bethesda, MD 20814. language interpretation or other Committee Name: Health Behavior and Contact Person: Jean Speas, Parklawn, reasonable accommodations, should Prevention Review Committee. Room 9C–18, 5600 Fishers Lane, Rockville, contact Ms. Goad in advance of the MD 20857, Telephone: 301 443–1340. Date: June 13–June 14, 1996. meeting. Time: 9 a.m. Dr. Kevin M. Callahan, Scientific Committee Name: Mental Disorders of Place: Embassy Suites Hotel, 4300 Military Aging Review Committee. Review Administrator, Allergy, Road, N.W., Washington, DC 20015. Date: June 6–June 7, 1996. Contact Person: Monica F. Woodfork, Immunology and Transplantation Time: 9 a.m. Parklawn Building, Room 9C–26, 5600 Research Committee, NIAID, NIH, Solar Place: Barcelo Washington, Hotel, 2121 P Fishers Lane, Rockville, MD 20857, Building, Room 4C20, Bethesda, Street, NW., Washington, DC 20037. Telephone: 301, 443–4843. Maryland 20892, telephone 301–496– Contact Person: W. Gregory Zimmerman, 8424, will provide substantive program Parklawn Building, Room 9C–18, 5600 Committee Name: Psychobiology, Behavior, and Neuroscience Review information. Fishers Lane, Rockville, MD 20857, Telephone: 301, 443–1340. Committee. (Catalog of Federal Domestic Assistance Committee Name: Clinical Centers and Date: June 14–June 15, 1996. Program Nos. 93.855, Immunology, Allergic Special Projects Review Committee. Time: 9 a.m. and Immunologic Diseases Research, Date: June 6–June 7, 1996. Place: Double Tree Hotel, 1750 Rockville National Institutes of Health) Time: 9 a.m. Pike, Rockville, MD 20852. Dated: May 1, 1996. Place: Chevy Chase Holiday Inn, 5520 Contact Person: William H. Radcliffe, Susan K. Feldman, Wisconsin Avenue, Chevy Chase, MD 20815. Parklawn Building, Room 9–101, 5600 Fishers Lane, Rockville, MD 20857, Committee Management Officer, NIH. Contact Person: Phyllis L. Zusman, Parklawn Building, Room 9C–18, 5600 Telephone: 301, 443–3936. [FR Doc. 96–11362 Filed 5–6–96; 8:45 am] Fishers Lane, Rockville, MD 20857, Committee Name: Molecular, Cellular, and BILLING CODE 4140±01±M Telephone: 301, 443–1340. Developmental Neurobiology Review Committee Name: Services Research Committee. Review Committee. Date: June 17–June 18, 1996. National Institute of Mental Health; Date: June 11–June 12, 1996. Time: 8 a.m. Notice of Closed Meetings Time: 9 a.m. Place: Chevy Chase Holiday Inn, 5520 Place: Chevy Chase Holiday Inn, 5520 Wisconsin Avenue, Chevy Chase, MD 20815. Pursuant to section 10(d) of the Wisconsin Avenue, Chevy Chase, MD 20815. Contact Person: Donna Ricketts, Parklawn, Federal Advisory Committee Act, as Contact Person: Angela L. Redlingshafer, Room 9–101, 5600 Fishers Lane, Rockville, amended (5 U.S.C. Appendix 2), notice Parklawn, Room 9C–18, 5600 Fishers Lane, MD 20857, Telephone: 301, 443–3936. is hereby given of the following Rockville, MD 20857, Telephone: 301, 443– Committee Name: Epidemiology and meetings of the National Institute of 1367. Genetics Review Committee. Mental Health Initial Review Group: Committee Name: Neuropharmacology and Date: June 17–June 19, 1996. Agenda/Purpose: To review and evaluate Neurochemistry Review Committee. Time: 9 a.m. grant application. Date: June 12–June 14, 1996. Place: Double Tree Hotel, 1750 Rockville Committee Name: Violence and Traumatic Time: 8 a.m. Pike, Rockville, MD 20852. Street Review Committee. Place: Chevy Chase Holiday Inn, 5520 Contact Person: Shirley Williams, Date: June 3–June 4, 1996. Wisconsin Avenue, Chevy Chase, MD 20815. Parklawn, Room 9C–18, 5600 Fishers Lane, Time: 8:30 a.m. Contact Person: Shirley H. Maltz, Rockville, MD 20857, Telephone: 301, 443– Place: One Washington Circle, One Parklawn, Room 9–101, 5600 Fishers Lane, 1367 Washington Circle, NW., Washington, DC Rockville, MD 20857, Telephone: 301, 443– Committee Name: Cognitive Functional 20037. 3367. Neuroscience Review Committee. Contact Person: Sheri L. Schwartzback, Committee Name: Treatment Assessment Date: June 20–June 21, 1996. Parklawn Building, Room 9C–26, 5600 Review Committee. Time: 9 a.m. Fishers Lane, Rockville, MD 20857, Date: June 13–June 14, 1996. Place: Hyatt Regency Bethesda, One Telephone: 301, 443–4843. Time: 8:30 a.m. Bethesda Metro Center, Bethesda, MD 20814. Committee Name: Child Psychopathology Place: Bethesda Ramada Inn, 8400 Contact Person: Shirley H. Maltz, and Treatment Review Committee. Wisconsin Avenue, Bethesda, MD 20814. Parklawn, Room 9–101, 5600 Fishers Lane, Date: June 4–June 5, 1996. Contact Person: Phyllis L. Zusman, Rockville, MD 20857, Telephone: 301, 443– Time: 9 a.m. Parklawn Building, Room 9C–18, 5600 3367. Place: Bethesda Ramada Inn, 8400 Fishers Lane, Rockville, MD 20857, Committee Name: Perception and Wisconsin Avenue, Bethesda, MD 20814. Telephone: 301, 443–1340. Cognition Review Committee. Contact Person: Angela L. Redlingshafer, Committee Name: Social and Group Date: June 20–June 21, 1996. Parklawn, Room 9C–18, 5600 Fishers Lane, Processes Review Committee. Time: 9 a.m. Rockville, MD 20857, Telephone: 301, 443– Date: June 13–June 14, 1996. Place: The Latham Hotel Georgetown, 3000 1367. Time: 9 a.m. M Street, N.W., Washington, DC 20007. Committee Name: Clinical Neuroscience Place: Holiday Inn, Bethesda, 8120 Contact Person: Regina M. Thomas, and Biological Psychopathology Review Wisconsin Avenue, Bethesda, MD 20814. Parklawn Building, Room 9C–26, 5600 Committee. Contact Person: Rehana A. Chowdhury, Fishers Lane, Rockville, MD 20857, Date: June 5–June 7, 1996. Parklawn Building, Room 9C–26, 5600 Telephone: 301, 443–6470. Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Notices 20537

Committee Name: Mental Health AIDS and applications and/or proposals, the disclosure Dated: May 1, 1996. Immunology Review Committee—1. of which would constitute a clearly Susan K. Feldman, Date: June 24–June 27, 1996. unwarranted invasion of personal privacy. Time: 8:30 a.m. This notice is being published less than 15 Committee Management Officer, NIH. Place: Chevy Chase Holiday Inn, 5520 days prior to the meeting due to the urgent [FR Doc. 96–11353 Filed 5–6–96; 8:45 am] Wisconsin Avenue, Chevy Chase, MD 20815. need to meet timing limitations imposed by BILLING CODE 4140±01±M Contact Person: Regina M. Thomas, the review and funding cycle. Parklawn Building, Room 9C–26, 5600 (Catalog of Federal Domestic Assistance Fishers Lane, Rockville, MD 20857, Programs Nos. 93.855, Immunology, Allergic National Library of Medicine; Notice of Telephone: 301, 443–6470. and Immunologic Diseases Research; 93.856, Meeting of the Biomedical Library Committee Name: Mental Health AIDS and Microbiology and Infectious Diseases Review Committee Immunology Review Committee—2. Research, National Institutes of Health.) Date: July 1–July 2, 1996. Dated: April 30, 1996. Pursuant to Pub. L. 92–463, notice is Time: 8:30 a.m. Susan K. Feldman, Place: One Washington Circle, One hereby given of the meeting of the Washington Circle, N.W., Washington, DC Committee Management Officer, NIH. Biomedical Library Review Committee 20037. [FR Doc. 96–11369 Filed 5–6–96; 8:45 am] on June 19–20, 1996, convening at 8:30 Contact Person: Rehana A. Chowdhury, BILLING CODE 4140±01±M a.m. in the Board Room of the National Parklawn Building, Room 9C–26, 5600 Library of Medicine, Building 38, 8600 Fishers Lane, Rockville, MD 20857, Rockville Pike, Bethesda, Maryland. Telephone: 301, 443–6470. National Library of Medicine; Notice of The meetings will be closed in accordance The meeting on June 19 will be open Meeting of the Literature Selection to the public from 8:30 a.m. to with the provisions set forth in secs. Technical Review Committee 552b(c)(4) and 552b(c)(6), Title 5, U.S.C. approximately 11 a.m. for the Applications and/or proposals and the Pursuant to Pub. L. 92–463, notice is discussion of administrative reports and discussions could reveal confidential trade hereby given of a meeting of the program developments. Attendance by secrets or commercial property such as Literature Selection Technical Review the public will be limited to space patentable material and personal information available. Individuals who plan to concerning individuals associated with the Committee, National Library of Medicine, on June 13–14, 1996, attend and need special assistance, such applications and/or proposals, the disclosure as sign language interpretation or other of which would constitute a clearly convening at 9 a.m. on June 13 and at unwarranted invasion of personal privacy. 8:30 a.m. on June 14 in the Board Room reasonable accommodations, should contact Dr. Roger W. Dahlen at 301– (Catalog of Federal Domestic Assistance of the National Library of Medicine, Program Numbers 93.242, 93.281, 93.282) Building 38, 8600 Rockville Pike, 496–4221 two weeks before the meeting. Dated: May 1, 1996. Bethesda, Maryland. In accordance with provisions set Susan K. Feldman, The meeting on June 13 will be open forth in secs. 552b(c)(4) and 552b(c)(6), Committee Management Office, NIH. to the public from 9 a.m. to Title 5, U.S.C., and sec. 10(d) of Pub. L. 92–463, the meeting on June 19 will be [FR Doc. 96–11366 Filed 5–6–96; 8:45 am] approximately 10:30 a.m. for the discussion of administrative reports and closed to the public for the review, BILLING CODE 4140±01±M program developments. Attendance by discussion, and evaluation of individual the public will be limited to space grant applications from 11 a.m. to National Institute of Allergy and available. Individuals who plan to approximately 5 p.m., and on June 20 Infectious Disease; Notice of Closed attend and need special assistance, such from 8:30 a.m. to adjournment. These Meeting as sign language interpretation or other applications and the discussion could reasonable accommodations, should reveal confidential trade secrets or Pursuant to Section 10(d) of the contact Mrs. Lois Ann Colaianni at 301– commercial property, such as patentable Federal Advisory Committee Act, as 496–6921 two weeks before the meeting. material, and personal information amended (5 U.S.C. Appendix 2), notice In accordance with provisions set concerning individuals associated with is hereby given of the following forth in sec. 552b(c)(9)(B), Title 5, the applications, disclosure of which National Institute of Allergy and U.S.C., Pub. L. 92–463, the meeting will would constitute a clearly unwarranted Infectious Diseases Special Emphasis be closed on June 13 from 10:30 a.m. to invasion of personal privacy. Panel (SEP) meeting: approximately 5 p.m. and on June 14 Dr. Roger W. Dahlen, Scientific Name of SEP: Research Training Grant from 8:30 a.m. to adjournment for the Review Administrator, and Chief, Applications in Allergy and Immunology. review and discussion of individual Biomedical Information Support Date: May 13, 1996. journals as potential titles to be indexed Branch, Extramural Programs, National Time: 4:00 p.m. by the National Library of Medicine. Library of Medicine, 8600 Rockville Place: Teleconference, Solar Bldg., Room The presence of individuals Pike, Bethesda, Maryland 20894, 3C40, 6003 Executive Blvd., Bethesda, MD associated with these publications could 20892, (301) 402–4988. telephone number: 301–496–4221, will Contact Person: Dr. Dianne E. Tingley, hinder fair and open discussion and provide summaries of the meeting, Scientific Review Adm., 6003 Executive evaluation of individual journals by the rosters of the committee members, and Boulevard, Solar Bldg., Room 4C07, Committee members. other information pertaining to the Bethesda, MD 20892–7610, (301) 496–0818. Mrs. Lois Ann Colaianni, Scientific meeting. Purpose/Agenda: To evaluate grant Review Administrator of the Committee, (Catalog of Federal Domestic Assistance applications. and Associate Director, Library The meeting will be closed in accordance Program No. 93.879—Medical Library Operations, National Library of Assistance, National Institutes of Health.) with the provisions set forth in secs. Medicine, 8600 Rockville Pike, 552b(c)(4) and 552b(c)(6), Title 5, U.S.C. Dated: May 1, 1996. Bethesda, Maryland 20894, telephone Applications and/or proposals and the Susan K. Feldman, discussions could reveal confidential trade number: 301–496–6921, will provide a Committee Management Officer, NIH. secrets or commercial property such as summary of the meeting, rosters of the patentable material and personal information committee members, and other [FR Doc. 96–11360 Filed 5–6–96; 8:45 am] concerning individuals associated with the information pertaining to the meeting. BILLING CODE 4140±01±M 20538 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Notices

Division of Research Grants; Notice of amended (5 U.S.C. Appendix 2), notice Closed Meetings is hereby given of the following meetings that are being held to review Pursuant to section 10(d) of the grant applications: Federal Advisory Committee Act, as

May±July 1996 Study section/contact person meetings Time Location

AIDS and Related Research Initial Review Group: AIDS & Related Research 1, Dr. Sami Mayyasi, 301±435±1216 .... July 6±7 ...... 8:00 a.m. Seattle Marriott Hotel, Seattle, WA. AIDS & Related Research 2, Dr. Gilbert Meier, 301±435±1219 ...... July 19 ...... 8:00 a.m. Holiday Inn, Chevy Chase, MD. AIDS & Related Research 3, Dr. Marcel Pons, 301±435±1217 ...... July 27±28 ...... 8:00 a.m. Holiday Inn, Chevy Chase, MD. AIDS & Related Research 4, Dr. Mohindar Poonian, 301±435± July 12±13 ...... 8:30 a.m. Hilton Hotel, Bellevue, WA. 1218. AIDS & Related Research 5, Dr. Mohindar Poonian, 301±435± July 14 ...... 8:30 a.m. Hilton Hotel, Bellevue, WA. 1218. AIDS & Related Research 6, Dr. Gilbert Meier, 301±435±1219 ...... July 1 ...... 8:00 a.m. Holiday Inn, Chevy Chase, MD. AIDS & Related Research 7, Dr. Gilbert Meier, 301±435±1219 ...... July 12 ...... 8:00 a.m. Holiday Inn, Chevy Chase, MD. Biobehavioral and Social Sciences Initial Review Group: Behavioral Medicine, Ms. Carol Campbell, 301±435±1257 ...... June 26±27 ...... 8:30 a.m. St. James Hotel, Washington, DC. Bio-Psychology, Dr. Gilbert Meier, 301±435±1219 ...... June 13±14 ...... 9:00 a.m. Doubletree Hotel, Rockville, MD. Human Development & Aging±1, Dr. Anita Miller Sostek, 301± June 13±14 ...... 9:00 a.m. Embassy Suites Hotel, Chevy 435±1260. Chase Pavilion, Washington, DC. Human Development & Aging±2, Dr. Robert Weller, 301±435± June 18±19 ...... 8:30 a.m. Hyatt Regency Hotel, Bethesda, 1261. MD. Human Development & Aging±3, Dr. Anita Miller Sostek, 301± June 17±18 ...... 9:00 a.m. Embassy Suites Hotel, Chevy 435±1260. Chase Pavilion, Washington, DC. Social Sciences & Population, Dr. Robert Weller, 301±435±1261 June 13±14 ...... 8:00 a.m. Washington Vista Hotel, Washing- ton, DC. Biochemical Sciences Initial Review Group: Biochemistry, Dr. Chhanda Ganguly, 301±435±1739 ...... June 12±14 ...... 8:30 a.m. Georgetown Holiday Inn, Washing- ton, DC. Medical Biochemistry, Dr. Alexander Liacouras, 301±435±1740 ..... June 20±21 ...... 8:30 a.m. One Washington Circle Hotel, Washington, DC. Pathobiochemistry, Dr. Zakir Bengali, 301±435±1742 ...... June 6±7 ...... 8:30 a.m. Georgetown Holiday Inn, Washing- ton, DC. Physiological Chemistry, Dr. Donald Schneider, 301±435±1165 ..... June 20±21 ...... 8:30 a.m. Holiday Inn, Chevy Chase, MD. Biophysical and Chemical Sciences Initial Review Group: Bio-Organic & Natural Products Chemistry, Dr. Harold Radtke, June 20±21 ...... 9:00 a.m. Manor on Golden Pond, 301±435±1728. Holdemess, NH. Biophysical Chemistry, Dr. John Beisler, 301±435±1727 ...... June 13±15 ...... 8:30 a.m. One Washington Circle Hotel, Washington, DC. Medicinal Chemistry, Dr. Ronald Dubois, 301±435±1722 ...... June 5±7 ...... 8:30 a.m. Holiday Inn, Chevy Chase, MD. Metallobiochemistry, Dr. Asher Hyatt, 301±435±1751 ...... June 27±28 ...... 8:30 a.m. Georgetown Holiday Inn, Washing- ton, DC. Molecular & Cellular Biophysics, Dr. Nancy Lamontagne, 301± June 13±14 ...... 8:30 a.m. Holiday Inn, Chevy Chase, MD. 435±1726. Physical Biochemistry, Dr. Gopa Rakhit, 301±435±1721 ...... June 17±18 ...... 8:30 a.m. Doubletree Hotel, Rockville, MD. Cardiovascular Sciences Initial Review Group: Cardiovascular, Dr. Gordon Johnson, 301±435±1212 ...... June 5±7 ...... 8:00 a.m. Doubletree Hotel, Alexandria, VA. Cardiovascular & Renal, Dr. Anthony Chung, 301±435±1213 ...... June 17±19 ...... 8:30 a.m. Holiday Inn, Chevy Chase, MD. Experimental Cardiovascular Sciences, Dr. Anshumali Chaudhari, June 10±11 ...... 8:00 a.m. Doubletree Hotel, Rockville, MD. 301±435±1210. Hematology±1, Dr. Clark Lum, 301±435±1195 ...... June 6±7 ...... 8:00 a.m. Doubletree Hotel, Rockville, MD. Hematology-2, Dr. Jerrold Fried, 301±435±1777 ...... June 13±14 ...... 8:30 a.m. Holiday Inn, Bethesda, MD. Pharmacology, Dr. Jeanne Ketley, 301±435±1789 ...... June 19±20 ...... 8:00 a.m. American Inn, Bethesda, MD. Cell Development and Function Initial Review Group: Biological Sciences-2, Dr. Camilla Day, 301±435±1024 ...... June 18±19 ...... 8:30 a.m. The Georgetown Inn, Washington, DC. Cellular Biology and Physiology-1 Dr. Gerald Greenhouse, 301± June 5±6 ...... 8:30 a.m. Hyatt Fair Lakes, Fairfax, VA. 435±1023. Cellular Biology and Physiology-2, Dr. Gerhard Ehrenspeck, 301± June 10±11 ...... 8:30 a.m. Holiday Inn, Chevy Chase, MD. 435±1022. Human Embryology & Development-2, Dr. Sherry Dupere, 301± June 27±28 ...... 8:00 a.m. Holiday Inn, Chevy Chase, MD. 435±1021. International & Cooperative Projects, Dr. G. B. Warren, 301±435± July 18±19 ...... 8:00 a.m. Embassy Suites Hotel, Chevy 1019. Chase Pavilion, Washington, DC. Molecular Biology, Dr. Robert Su, 301±435±1025 ...... June 27±29 ...... 8:30 a.m. The Georgetown Inn, Washington, DC. Molecular Cytology, Dr. Ramesh Nayak, 301±435±1026 ...... June 6±7 ...... 8:00 a.m. Holiday Inn, Chevy Chase, MD. Endocrinology and Reproductive Sciences Initial Review Group: Biochemical Endocrinology, Dr. Michael Knecht, 301±435±1046 .... June 5±6 ...... 8:30 a.m. Embassy Suites Hotel, Chevy Chase Pavilion, Washington, DC. Endocrinology, Dr. Syed Amir, 301±435±1043 ...... June 10±11 ...... 8:30 a.m The King George Hotel, San Fran- cisco, CA. Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Notices 20539

May±July 1996 Study section/contact person meetings Time Location

Human Embryology & Development-1, Dr. Michael Knecht, 301± June 20±21 ...... 8:00 a.m Doubletree Hotel, Rockville, MD. 435±1046. Reproductive Biology, Dr. Dennis Leszczynski, 301±435±1044 ...... June 17±18 ...... 8:00 a.m Doubletree Hotel, Rockville, MD. Reproductive Endocrinology, Dr. Abubakar Shaikh, 301±435±1042 July 1±2 ...... 8:00 a.m. Doubletree Hotel, Rockville, MD. Genetic Sciences Initial Review Group: Biological Sciences-1, Dr. Nancy Pearson, 301±435±1047 ...... June 23±30 ...... 8:30 a.m St. James Hotel, Washington, DC. Genetics, Dr. David Remondini, 301±435±1038 ...... June 6±8 ...... 9:00 a.m. Georgetown Holiday Inn, Washing- ton, DC. Genome, Dr. Cheryl Corsaro, 301±435±1045 ...... June 17±19 ...... 9:00 a.m St. James Hotel, Washington, DC. Mammalian Genetics, Dr. Jerry Roberts, 301±435±1037 ...... June 27±28 ...... 8:30 a.m Holiday Inn, Chevy Chase, MD. Health Promotion and Disease Prevention Initial Review Group: Epidemiology & Disease Control-1, Dr. Scott Osborne, 301±435± June 18±20 ...... 8:30 a.m Marriott Residence Inn, Bethesda, 1782. MD. Epidemiology & Disease Control-2, Dr. J. Terrell Hoffeld, 301± June 24±26 ...... 8:00 a.m Holiday Inn, Chevy Chase, MD. 435±1781. Nursing Research, Dr. Gertrude McFarland, 301±435±1784 ...... June 20±21 ...... 8:30 a.m. Holiday Inn, Bethesda, MD. Immunological Sciences Initial Review Group: Allergy & Immunology, Dr. Gene Zimmerman, 301±435±1220 ...... June 17±18 ...... 8:30 a.m. Holiday Inn, Chevy Chase, MD. Experimental Immunology, Dr. Calbert Laing, 301±435±1221 ...... June 17±18 ...... 8:30 a.m. Holiday Inn, Chevy Chase, MD. Immunobiology, Dr. Betty Hayden, 301±435±1223 ...... May 29±30 ...... 8:30 a.m. Holiday Inn, Chevy Chase, MD. Immunological Sciences, Dr. Anita Corman Weinblatt, 301±435± June 12±14 ...... 8:30 a.m. Holiday Inn, Chevy Chase, MD. 1224. Immunology, Virology & Pathology, Dr. Lynwood Jones, 301±435± June 19±21 ...... 8:30 a.m. Holiday Inn, Chevy Chase, MD. 1153. Infectious Diseases and Microbiology Initial Review Group: Bacteriology & Mycology±1, Dr. Timothy Henry, 301±435±1147 ..... June 17±18 ...... 8:30 a.m. Marriott Residence Inn, Bethesda, MD. Bacteriology & Mycology±2, Dr. William Branche, Jr., 301±435± June 19±21 ...... 8:30 a.m. Holiday Inn, Chevy Chase, MD. 1148. Experimental Virology, Dr. Garrett Keefer, 301±435±1152 ...... June 24±25 ...... 8:30 a.m. Holiday Inn, Chevy Chase, MD. Microbial Physiology & Genetics±1, Dr. Martin Slater, 301±435± June 19±21 ...... 8:30 a.m. Holiday Inn, Governor's House, 1149. Washington, DC. Microbial Physiology & Genetics-2, Dr. Gerald Liddel, 301±435± June 20±21 ...... 8:30 a.m. Ramada Inn, Rockville, MD. 1150. Tropical Medicine & Parasitology, Dr. Jean Hickman, 301±435± June 20±21 ...... 8:00 a.m. Holiday Inn, Bethesda, MD. 1146. Virology, Dr. Rita Anand, 301±435±1151 ...... June 20±21 ...... 8:30 a.m. Doubletree Hotel, Rockville, MD. Musculoskeletal and Dental Sciences Initial Review Group: General Medicine A±1, Dr. Harold Davidson, 301±435±1776 ...... June 2±4 ...... 7:00 p.m. Marriott Hotel, Pooks Hill, Be- thesda, MD. General Medicine B, Dr. Shirley Hilden, 301±435±1198 ...... June 3±4 ...... 8:00 a.m. Holiday Inn, Chevy Chase, MD. Oral Biology & Medicine-1, Dr. Priscilla Chen, 301±435±1787 ...... June 24±25 ...... 8:30 a.m. Holiday Inn Old Town, Alexandria, VA. Oral Biology & Medicine-2, Dr. Priscilla Chen, 301±435±1787 ...... June 10±11 ...... 8:30 a.m. Holiday Inn Old Town, Alexandria, VA. Orthopedics & Musculoskeletal, Dr. Daniel McDonald, 301±435± June 19±20 ...... 8:00 a.m. Holiday Inn, Gaithersburg, MD. 1215. Neurological Sciences Initial Review Group: Neurological Sciences-1, Dr. Carl Banner, 301±435±1251 ...... June 5±7 ...... 8:30 a.m. Holiday Inn, Bethesda, MD. Neurological Sciences-2, Dr. Kathleen Michels, 301±435±1250 ..... June 10±12 ...... 8:00 a.m. Holiday Inn, Chevy Chase, MD. Neurology B±1, Dr. Lillian Pubols, 301±435±1255 ...... June 4±6 ...... 8:30 a.m. Omni Shoreham Hotel, Washing- ton, DC. Neurology B±2, Dr. Herman Teitelbaum, 301±435±1254 ...... June 23±25 ...... 7:00 p.m. Holiday Inn, Chevy Chase, MD. Neurology C, Dr. Kenneth Newrock, 301±435±1252 ...... June 26±28 ...... 8:30 a.m. Radisson Barcelo Hotel, Washing- ton, DC. NUTRITIONAL AND METABOLIC SCIENCES INITIAL REVIEW GROUP: General Medicine A±2, Dr. Mushtaq Khan, 301±435±1778 ...... June 24±26 ...... 8:30 a.m. Doubletree Hotel, Rockville, MD. Metabolism, Dr. Krish Krishnan, 301±435±1779 ...... July 2±3 ...... 8:00 a.m. Georgetown Holiday Inn, Washing- ton, DC. Nutrition, Dr. Sooja Kim, 301±435±1780 ...... June 24±25 ...... 8:30 a.m. Doubletree Hotel, Rockville, MD. ONCOLOGICAL SCIENCES REVIEW GROUP: Chemical Pathology, Dr. Edmund Copeland, 301±435±1715 ...... June 19±21 ...... 8:00 a.m. Holiday Inn, Chevy Chase, MD. Experimental Therapeutics±1, Dr. Philip Perkins, 301±435±1718 ... June 27±28 ...... 8:30 a.m. Hyatt Hotel, Arlington, VA. Experimental Therapeutics±2, Dr. Marcia Litwack, 301±435±1719 June 26±28 ...... 8:30 a.m. Embassy Suites Hotel, Chevy Chase Pavilion, Washington, DC. Metabolic Pathology, Dr. Marcelina Powers, 301±435±1720 ...... June 18±20 ...... 8:30 a.m. Holiday Inn, Bethesda, MD. Pathology A, Dr. Larry Pinkus, 301±435±1214 ...... June 11±13 ...... 8:30 a.m. Holiday Inn, Chevy Chase, MD. Pathology B, Dr. Martin Padarathsingh, 301±435±1717 ...... June 18±20 ...... 8:00 a.m. Georgetown, Holiday Inn, Washing- ton, DC. Radiation, Dr. Paul Strudler, 301±435±1716 ...... June 3±5 ...... 8:30 a.m. Embassy Suites Hotel, Chevy Chase Pavilion, Washington, DC. Pathophysiological Sciences Initial Review Group: 20540 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Notices

May±July 1996 Study section/contact person meetings Time Location

Lung Biology & Pathology, Dr. Anne Clark, 301±435±1017 ...... June 12±13 ...... 8:00 a.m. St. James Hotel, Washington, DC. Physiology, Dr. Michael Lang, 301±435±1015 ...... June 13±14 ...... 8:30 a.m. Embassy Suites Hotel, Chevy Chase Pavilion, Washington, DC. Respiratory & Applied Physiology, Dr. Everett Sinnett, 301±435± June 18±19 ...... 8:30 a.m. Holiday Inn, Chevy Chase, MD. 1016. Sensory Sciences Initial Review Group: Hearing Research, Dr. Joseph Kimm, 301±435±1249 ...... June 10±12 ...... 8:30 a.m. Radisson Barcelo Hotel, Washing- ton, DC. Sensory Disorders & Language, Dr. Jane Hu, 301±435±1245 ...... June 12±14 ...... 8:30 a.m. Capitol Holiday Inn, Washington, DC. Visual Sciences A, Dr. Luigi Giacometti, 301±435±1246 ...... June 12±14 ...... 8:30 a.m. Ramada Inn, Rockville, MD. Visual Sciences B, Dr. Leonard Jakubczak, 301±435±1247 ...... June 19±21 ...... 8:30 a.m. The Latham Hotel, Washington, DC. Visual Sciences C, Dr. Carole Jelsema, 301±435±1248 ...... June 12±14 ...... 8:00 a.m. Omni Shoreham Hotel, Washing- ton, DC. Surgery, Radiology and Bioengineering Initial Review Group: Diagnostic Radiology, Dr. Eileen Bradley, 301±435±1178 ...... June 19±20 ...... 8:00 a.m. The Georgetown Inn, Washington, DC. Surgery & Bioengineering, Dr. Paul Parakkal, 301±435±1172 ...... June 24±25 ...... 8:00 a.m. Georgetown Holiday Inn, Washing- ton, DC. Surgery, Anesthesiology & Trauma, Dr. Gerald Becker, 301±435± June 19±20 ...... 1:00 p.m. Holiday Inn, Bethesda, MD. 1750.

The meetings will be closed in with respect to matters relating to the National Seashore, So. Wellfleet, MA accordance with the provisions set forth development of the Cape Cod National 02663. in secs. 552b(c)(4) and 552b(c)(6), Title Seashore, and with respect to carrying Dated: April 30, 1996. 5, U.S.C. Applications and/or proposals out the provisions of sections 4 and 5 and the discussions could reveal of the Act establishing the Seashore. Maria Burks, Superintendent. confidential trade secrets or commercial The Commission members will property such as patentable material convene at Headquarters, Marconi [FR Doc. 96–11303 Filed 5–6–96; 8:45 am] and personal information concerning Station at 10 a.m. for a field trip to the BILLING CODE 4310±70±P individuals associated with the Bog House. applications and/or proposals, the The commission members will then disclosure of which would constitute a National Register of Historic Places; meet at 1 p.m. at Park Headquarters, clearly unwarranted invasion of Notification of Pending Nominations Marconi Station for their regular personal privacy. business meeting which will be held for Nominations for the following (Catalog of Federal Domestic Assistance the following reasons: Program Nos. 93.306, 93.333, 93.337, 93.393– properties being considered for listing 93.396, 93.837–93.844, 93.846–93.878, 1. Adoption of Agenda. in the National Register were received 93.892, 93.893, National Institutes of Health, 2 Approval of Minutes of Previous by the National Park Service before HHS) Meeting. April 27, 1996. Pursuant to section Dated: May 01, 1996. 3. Reports of Officers. 4. Old Business. 60.13 of 36 CFR Part 60 written Susan K. Feldman, 5. Dune Shack Policy—R. Philbrick. comments concerning the significance Committee Management Officer, NIH. 6. Report of Superintendent: GMP Update, of these properties under the National [FR Doc. 96–11368 Filed 5–6–96; 8:45 am] Lighthouses, Provincetown Airport Terminal Register criteria for evaluation may be BILLING CODE 4140±01±M Design. forwarded to the National Register, 7. Use & Occupancy Subcommittee—W. National Park Service, P.O. Box 37127, Hammatt. 8. New Business. Washington, DC 20013–7127. Written DEPARTMENT OF THE INTERIOR 9. Agenda for next meeting. comments should be submitted by May 10. Date for next meeting. 22, 1996. National Park Service 11. Public comment. Carol D. Shull, 12. Adjournment. Cape Cod National Seashore Advisory Keeper of the National Register. Commission; Meeting The meeting is open to the public. It FLORIDA is expected that 15 persons will be able Notice is hereby given in accordance Monroe County with the Federal Advisory Committee to attend the meeting in addition to the Act (Pub. L. 92–463, 86 Stat. 770, 5 Commission members. USS ALLIGATOR, Address Restricted, U.S.C. App 1, section 10), that a meeting Interested persons may make oral/ Islamoranda vicinity, 96000581 of the Cape Cod National Seashore written presentations to the Commission GEORGIA Advisory Commission will be held on during the business meeting or file Friday, May 31, 1996. written statements. Such requests McDuffie County The Commission was reestablished should be made to the park Pine Top Farm, Jct. of US 78 and US 278, 2 pursuant to Public Law 99–349, superintendent at least seven days prior mi. E of Thomson, Thomson vicinity, Amendment 24. The purpose of the to the meeting. Further information 96000582 Commission is to consult with the concerning the meeting may be obtained Secretary of the Interior, or his designee, from the Superintendent, Cape Cod Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Notices 20541

KANSAS INTERNATIONAL TRADE disposed of at the scheduled meeting, Sedgwick County COMMISSION may be carried over to the agenda of the following meeting. Monroe—Mahan House, 1357 S. Broadway, Sunshine Act Meeting Wichita, 96000583 By order of the Commission. Issued: May 3, 1996. NEVADA [USITC SE–96–08] AGENCY HOLDING THE MEETING: United Donna R. Koehnke, White Pine County States International Trade Commission. Secretary. Osceola (East) Ditch, Starting .5 mi. E of TIME AND DATE: May 16, 1996 at 11:00 [FR Doc. 96–11535 Filed 5–3–96; 3:40 pm] Grouse Canyon and running approximately a.m. BILLING CODE 7020±02±P 18 mi. SE to Lehman Cr., Great Basin National Park, Baker vicinity, 96000584 PLACE: Room 101, 500 E Street S.W. Washington, DC 20436. NEW YORK STATUS: Open to the public. DEPARTMENT OF JUSTICE New York County MATTERS TO BE CONSIDERED: Drug Enforcement Administration Mount Morris Park Historic District 1. Agenda for future meeting (Boundary Increase), Roughly bounded by 2. Minutes Manufacturer of Controlled Adam Clayton Powell, Jr. Blvd. and Mt. 3. Ratification List Substances; Notice of Registration Morris Park W. from W. 118th to W. 124th 4. Inv. No. 731–TA–747 (Preliminary) (Fresh Sts., New York, 96000585 Tomatoes from Mexico)—briefing and By Notice dated December 22, 1995, and published in the Federal Register TEXAS vote. 5. Outstanding action jackets: on January 22, 1996, (61 FR 1603), Bexar County 1. ID–96–006, Request for report approval Organix Inc., 65 Cummings Park, Calcasieu Building, 202–214 Broadway, San in Inv. No. 332–237 (Production Sharing: Woburn, Massachusetts 01801, made Antonio, 96000588 Use of U.S. Components and Materials in application to the Drug Enforcement Foreign Assembly Operations). Administration (DEA) to be registered as Dallas County 2. ID–96–007, 1996 Annual report in Inv. No. 332–345 (U.S. Trade Shifts in a bulk manufacturer of the basic classes Titche—Goettinger Department Store, 1901 of controlled substances listed below: Main St., Dallas, 96000586 Selected Industries). Harris County In accordance with Commission Drug Schedule policy, subject matter listed above, not Lewis Apartment Building, 2815–2817 Smith disposed of at the scheduled meeting, Tetrahydrocannabinols (7370) ..... I. St., Houston, 96000587 may be carried over to the agenda of the Morphine (9300) ...... II. UTAH following meeting. No comments or objections have been Cache County By order of the Commission. received. DEA has considered the Richmond Relief Society Hall (Mormon Issued: May 3, 1996 factors in 21 U.S.C. 823(a) and Church Buildings in Utah MPS), 15 E. Donna R. Koehnke, determined that the registration of Main St., Richmond, 96000589 Secretary. Organix Inc. to manufacture the listed Sampete County [FR Doc. 96–11534 Filed 5–3–96; 3:36 pm] controlled substances is consistent with Moroni Opera House, Jct. of UT 132 and W. BILLING CODE 7020±02±P the public interest at this time. Main St., Moroni, 96000589 Therefore, pursuant to 21 U.S.C. 823 and 28 C.F.R. 0.100 and 0.104, the VIRGINIA Sunshine Act Meeting Deputy Assistant Administrator, Office Franklin County of Diversion Control, hereby orders that [USITC SE–96–09] Cahas Mountain Rural Historic District, Jct. the application submitted by the above AGENCY HOLDING THE MEETING: United of VA 613 and US 220, Peak of Cahas Mt. firm for registration as a bulk to near Roanoke Co. line, Boones Mill, States International Trade Commission. manufacturer of the basic classes of 96000593 TIME AND DATE: May 29, 1996 at 11:00 controlled substances listed above is a.m. Rockbridge County granted. PLACE: Room 101, 500 E Street SW., Dated; April 29, 1996. Kennedy—Lunsford Farm, Approximately .5 Washington, DC 20436. mi. S of VA 606, near jct. with VA 604, Gene R. Haislip, STATUS: Raphine, 96000592 Open to the public. Deputy Assistant Administrator, Office of MATTERS TO BE CONSIDERED: Salem Independent County Diversion Control, Drug Enforcement 1. Agenda for future meeting Administration. Downtown Salem Historic District, Roughly, 2. Minutes [FR Doc. 96–11310 Filed 5–6–96; 8:45 am] Main St. from Broad St. to College Ave., 3. Ratification List Salem, 96000591 BILLING CODE 4410±09±M 4. Inv. No. 731–TA–731 (Final) (Bicycles The following property was omitted from the People’s Republic of China)— from a previous Notification of Pending briefing and vote. 5. Outstanding action jackets: DEPARTMENT OF LABOR Nominations list: 1. ID–96–008, Initiation of an investigation Office of the Secretary OREGON under section 332 of the Tariff Act of 1930 on South American trading Lane County partners’ schedules of commitments. Submission for OMB Review; Amazon Family Housing Complex, Jct. of 2. O/TATA–96–004, Report on S. Comment Request Patterson St. and 22nd Ave., Eugene, 1550 (2-Amino-3-chlorobenzoic acid, May 2, 1996. 95000090 methyl ester). The Department of Labor (DOL) has [FR Doc. 96–11302 Filed 5–6–96; 8:45 am] In accordance with Commission submitted the following public BILLING CODE 4310±70±M policy, subject matter listed above, not information collection request (ICR) to 20542 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Notices the Office of Management and Budget Description: This collection of —Minimize the burden of the collection (OMB) for review and approval in information is used to determine of information on those who are to accordance with the Paperwork whether a retail or service or respond, including the use of Reduction Act of 1995 (P.L. 104–13, 44 agricultural employer should be appropriate automated, electronic, U.S.C. Chapter 35). A copy of this authorized to pay subminimum wages mechanical, or other technological individual ICR, with applicable to full-time students pursuant to the collection techniques or other forms supporting documentation, may be provisions of section 14(b) of the Fair of information technology, e.g., obtained by calling the Department of Labor Standards Act. permitting electronic submission of Labor Acting Departmental Clearance responses. { } Theresa M. O’Malley, Officer, Theresa M. O’Malley ( 202 ADDRESSES: Eve MacDonald, Acting Departmental Clearance Officer. 219–5095). Individuals who use a Unemployment Insurance Service, telecommunications device for the deaf [FR Doc. 96–11346 Filed 5–6–96; 8:45 am] Employment and Training (TTY/TDD) may call {202} 219–4720 BILLING CODE 4510±27±M Administration, Department of Labor, between 1:00 p.m. and 4:00 p.m. Eastern Room C 4514, 200 Constitution Ave, time, Monday through Friday. N.W., Washington, D.C., 20210; 202 Employment and Training Comments should be sent to Office of 219–5309 (this is not a toll-free Administration Information and Regulatory Affairs, number). Attn: OMB Desk Officer for the Employment Standards Administration, Proposed Information Collection SUPPLEMENTARY INFORMATION: Request Submitted for Public Office of Management and Budget, I. Background Room 10235, Washington, DC 20503 Comment and Recommendations; ({202} 395–7316), within 30 days from Extension of the Unemployment Since 1987, all State Employment the date of this publication in the Insurance (UI) Revenue Quality Control Security Agencies (SESAs) except the Federal Register. Program (RQC); Notice Virgin Islands have been required by The OMB is particularly interested in regulation at 20 CFR 602 to operate a SUMMARY: The Department of Labor, as Quality Control program to assess their comments which: part of its continuing effort to reduce * evaluate whether the proposed Unemployment Insurance tax and paperwork and respondent burden, collection of information is necessary benefit programs. Revenue Quality conducts a preclearance consultation for the proper performance of the Control (RQC) developed new measures program to provide the general public functions of the agency, including for tax performance to replace those and Federal agencies with an whether the information will have previously gathered under the Quality opportunity to comment on proposed practical utility; Appraisal (QA) system. RQC is designed * evaluate the accuracy of the and/or continuing collections of to assess the major internal UI tax agency’s estimate of the burden of the information in accordance with the functions by utilizing three proposed collection of information, Paperwork Reduction Act of 1995 methodologies: (1) Computed Measures including the validity of the (PRA95) (44 U.S.C. 3506(c)(2)(A)). This are indicators of timeliness and methodology and assumptions used; program helps to ensure that requested completeness based on data * enhance the quality, utility, and data can be provided in the desired automatically generated via the existing clarity of the information to be format, reporting burden (time and ET 581 automated report. (2) Program collected; and financial resources) is minimized, Reviews assess accuracy through a two- * minimize the burden of the collection instruments are clearly fold examination: (a) ‘‘Systems collection of information on those who understood, and the impact of collection Reviews’’ examine tax systems for the are to respond, including through the requirements on respondents can be existence of internal controls; (b) small use of appropriate automated, properly assessed. Currently, the ‘‘Acceptance Samples’’ of those systems’ electronic, mechanical, or other Employment and Training transactions are then examined to verify technological collection techniques or Administration is soliciting comments the effectiveness of those controls. (3) other forms of information technology, concerning the proposed revision and Through the use of non-evaluative e.g., permitting electronic submission of extension of the UI RQC Program. A surveys, RQC documents the methods responses. copy of the proposed information and procedures the SESA uses to Agency: Employment Standards collection request can be obtained by manage its tax operation. Best practices Administration. contacting the employee listed below in are identified and this information is Title: Application for Authority to the contact section of this notice. shared with other SESAs. Employ Full-Time Students at DATES: Written comments must be The last tax function to be covered by Subminimum Wages in Retail or Service submitted on or before July 8, 1996. RQC, Cashiering, has recently been Establishments or Agriculture. Written comments should: developed and transmitted to all States. OMB Number: 1215–0032. —Evaluate whether the proposed As with the other sections of RQC, the Agency Number: WH–200–MIS. Cashiering section will include a Frequency: Annually. collection of information is necessary Affected Public: Individuals or for the proper performance of the Systems Review. Since the quality of households; Business or other for-profit; functions of the agency, including payment applications will be evident Not-for-Profit institutions; Farms. whether the information will have through the Acceptance Samples of Number of Respondents: 5,000. practical utility; other sections of RQC, there will be no Estimated Time Per Respondent: 10– —Evaluate the accuracy of the agency’s Acceptance Sample specific to 30 minutes. estimate of the burden of the Cashiering. Instead, a measure is in Total Burden Hours: 1,100. proposed collection of information, place to identify timeliness of deposit of Total Annualized capital/startup including the validity of the employer payments into the clearing costs: $0. methodology and assumptions used; account. Deposit activities dictate that Total annual costs (operating/ —Enhance the quality, utility, and the measurement be conducted maintaining systems or purchasing clarity of the information to be manually; therefore, an Estimation services): $1,750. collected; and Sample (ES) review, similar in form to Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Notices 20543 the Quality Appraisal review for deposit Comments submitted in response to 3. West End Coal Company, Deep Mine promptness, has been developed. this notice will be summarized and/or [Docket No. M–96–26–C] included in the request for Office of II. Current Actions West End Coal Company, Deep Mine, Management and Budget approval of the 525 Pine Street, Lykens, Pennsylvania This is a request for OMB approval information collection request; they will 17048 has filed a petition to modify the under the Paperwork Reduction Act of also become a matter of public record. 1995 (44 USC 3506 (c)(2)(A)) of an application of 30 CFR 75.364(b)(1), (4), Dated: May 1, 1996. extension to an existing collection of and (5) (weekly examination) to its Last information previously approved and Mary Ann Wyrsch, Chance Slope (I.D. No. 36–07859) assigned OMB control No. 1205–0332. A Director, Unemployment Insurance Service. located in Schuylkill County, revision is also proposed to substitute [FR Doc. 96–11345 Filed 5–6–96; 8:45 am] Pennsylvania. Due to hazardous conditions and roof falls, certain areas the RQC design for measuring BILLING CODE 4510±30±P cashiering timeliness for the Quality of the intake haulage slope and primary Appraisal design. The proposed revision escapeway cannot be traveled safely. should have little or no impact on total Mine Safety and Health Administration The petitioner proposes to examine these areas from the gunboat/slope car burden hours because it replaces the Petitions for Modification with an alternative air quality sample used in the Quality Appraisal evaluation at the section’s intake level, cashiering review and no longer The following parties have filed and to travel and thoroughly examine includes an additional Acceptance petitions to modify the application of these areas for hazardous conditions Sample of 60 to test for accuracy in mandatory safety standards under once a month. The petitioner asserts posting. section 101(c) of the Federal Mine that the proposed alternative method The overall approach used in RQC Safety and Health Act of 1977. would provide at least the same sampling is similar in function to the measure of protection as would the QA sampling approach for Cashiering. 1. West End Coal Company, Deep Mine mandatory standard. There are, however, some differences in [Docket No. M–96–24–C] estimation sampling that enhance the West End Coal Company, Deep Mine, 4. West End Coal Company, Deep Mine RQC review approach: • 525 Pine Street, Lykens, Pennsylvania [Docket No. M–96–27–C] Deposit timeliness will be measured 17048 has filed a petition to modify the during the second quarter report period West End Coal Company, Deep Mine, application of 30 CFR 75.1202–1(a) 525 Pine Street, Lykens, Pennsylvania instead of the third quarter report period (temporary notations, revisions, and 17048 has filed a petition to modify the measured by QA. More payments are supplements) to its Last Chance Slope application of 30 CFR 75.360 (preshift typically received for the second (I.D. No. 36–07859) located in examination) to its Last Chance Slope quarter, providing a more accurate Schuylkill County, Pennsylvania. The (I.D. No. 36–07859) located in reading of the SESAs’ effectiveness; petitioner proposes to revise and • States have the flexibility to choose Schuylkill County, Pennsylvania. The supplement mine maps annually petitioner proposes to visually examine the period during which the ES will be instead of every 6 months, as required, selected (the QA time period was the each seal for physical damage from the and to update maps daily by hand slope gunboat during the preshift same for all States). This should allow notations. The petitioner asserts that the States to draw the sample from the most examination after an air quality reading proposed alternative method would is taken in by the intake portal and to representative flow of remittances; provide at least the same measure of • A standard sample size has been test for the quantity and quality of air at protection as would the mandatory established, to give all States’ estimates the intake air split locations off the standard. similar precision; slope in the gangway portion of the • A less cumbersome, more direct 2. West End Coal Company, Deep Mine working section. The petitioner method of calculating timeliness has proposes to physically examine the [Docket No. M–96–25–C] been developed for the ES than the one entire length of the slope once a month. used in the QA; West End Coal Company, Deep Mine, The petitioner asserts that the proposed • The ES includes a review of the 525 Pine Street, Lykens, Pennsylvania alternative method would provide at Cashiering activities performed by 17048 has filed a petition to modify the least the same measure of protection as agents of the SESAs previously application of 30 CFR 75.1200(d) & (i) would the mandatory standard. (mine map) to its Last Chance Slope excluded from QA; and 5. West End Coal Company, Deep Mine • The new timeliness measure now (I.D. No. 36–07859) located in reflects timeliness of electronically Schuylkill County, Pennsylvania. The [Docket No. M–96–28–C] transferred payments. petitioner proposes to use cross-sections West End Coal Company, Deep Mine, AGENCY: Employment and Training instead of contour lines through the 525 Pine Street, Lykens, Pennsylvania Administration, Department of Labor. intake slope, at locations of rock tunnel 17048 has filed a petition to modify the Title: Unemployment Insurance connections between veins, and at application of 30 CFR 75.335 Revenue Quality Control Program. 1,000-foot intervals of advance from the (construction of seals) to its Last Chance OMB Number: 1205–0332. intake slope and to limit the required Slope (I.D. No. 36–07859) located in Affected Public: State governments mapping of the mine workings above Schuylkill County, Pennsylvania. The (State Employment Security Agencies). and below to those present within 100 petitioner requests a modification of the Total Respondents: Fifty two State feet of the veins being mined except standard to permit alternative methods governments. when veins are interconnected to other of construction using wooden materials Frequency: Annually. veins beyond the 100-foot limit through of moderate size and weight due to the Total Responses: Fifty two. rock tunnel. The petitioner asserts that difficulty in accessing previously driven Average Time Per Response: 1750 the proposed alternative method would headings and breasts containing hours. provide at least the same measure of inaccessible abandoned workings; to Estimated Total Burden Hours: 91,000 protection as would the mandatory accept a design criteria in the 10 psi hours for 52 States. standard. range; and to permit the water trap to be 20544 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Notices installed in the gangway seal and to provide two portable fire permanent stopping lines would be sampling tube in the monkey seal for extinguishers or one portable fire constructed when rooms are driven seals installed in pairs. The petitioner extinguisher with twice the required more than 600 feet deep and temporary asserts that the proposed alternative capacity at each temporary electrical stopping lines would be used when method would provide at least the same installation instead of providing one rooms are driven 600 feet deep or less, measure of protection as would the extinguisher and rock dust at temporary as measured from the centerline of the mandatory standard. electrical installations. The petitioner panel from which the rooms are driven; asserts that the proposed alternative and that air flow volumes would be 6. West End Coal Company, Deep Mine method would provide at least the same measured in accordance with 30 CFR [Docket No. M–96–29–C] measure of protection as would the 75.360(c)(1) and 75.362(c)(1). The West End Coal Company, Deep Mine, mandatory standard. petitioner asserts that application of the standard would result in a diminution 525 Pine Street, Lykens, Pennsylvania 9. Pittsburg & Midway Coal Mining of safety to the miners; and that the 17048 has filed a petition to modify the Company application of 30 CFR 75.1100 (quantity proposed alternative method would and location of firefighting equipment) [Docket No. M–96–32–C] provide at least the same measure of to its Last Chance Slope (I.D. No. 36– Pittsburg & Midway Coal Mining protection as would the mandatory 07859) located in Schuylkill County, Company, P.O. Box 6518, Englewood, standard. Pennsylvania. The petitioner proposes Colorado 80155–6518 has filed a 11. Pittsburg & Midway Coal Mining to use only portable fire extinguishers to petition to modify the application of 30 Company replace existing requirements where CFR 75.325(b) (air quantity) to its Sebree rock dust, water cars, and other water No. 1 Mine (I.D. No. 15–17044) located [Docket No. M–96–34–C] storage are not practical. The petitioner in Webster County, Kentucky. The Pittsburg & Midway Coal Mining asserts that the proposed alternative petitioner proposes to provide positive Company, P.O. Box 6518, Englewood, method would provide at least the same ventilation by using the stopping line Colorado 80155–6518 has filed a measure of protection as would the constructed to separate the intake and petition to modify the application of 30 mandatory standard. return air courses in the rooms CFR 75.362(c)(1) (on-shift examination) previously developed on the same to its Sebree No. 1 Mine (I.D. No. 15– 7. Amax Coal Company panel. The petitioner states that the 17044) located in Webster County, [Docket No. M–96–30–C] stopping line would be constructed and Kentucky. The petitioner proposes to Amax Coal Company, One Oxford maintained in accordance with the provide positive ventilation by using the Centre, 301 Grant Street, 20th Floor, requirements in 30 CFR 75.333; that stopping line constructed to separate the Pittsburgh, Pennsylvania 15219–1410 permanent stopping lines would be intake and return air courses in the has filed a petition to modify the constructed when rooms are driven rooms previously developed on the application of 30 CFR 75.503 more than 600 feet deep and temporary same panel. The petitioner states that (permissible electric face equipment; stopping lines would be used when the stopping line would be constructed maintenance) to its Wabash Mine (I.D. rooms are driven 600 feet deep or less, and maintained in accordance with the No. 11–00877) located in Wabash as measured from the centerline of the requirements in 30 CFR 75.333; that County, Illinois. The petitioner proposes panel from which the rooms are driven; permanent stopping lines would be to extend the length of portable trailing and that air flow volumes would be constructed when rooms are driven cables to 825 feet. These cables would measured in accordance with 30 CFR more than 600 feet deep and temporary carry electrical power from the working 75.360(c)(1) and 75.362(c)(1). The stopping lines would be used when face transformer to the mobile roof petitioner asserts that application of the rooms are driven 600 feet deep or less, supports. The trailing cables connecting standard would result in a diminution as measured from the centerline of the the working section transformer to the of safety to the miners; and that the panel from which the rooms are driven; mobile roof supports are No. 4 3/C G– proposed alternative method would and that air flow volumes would be GC. The petitioner is conducting second provide at least the same measure of measured in accordance with 30 CFR mining in certain areas of its mine protection as would the mandatory 75.360(c)(1) and 75.362(c)(1). The where Voest-Alpine mobile roof standard. petitioner asserts that application of the supports are used and asserts that a standard would result in a diminution 10. Pittsburg & Midway Coal Mining safer mining process and more effective of safety to the miners; and that the Company roof control is provided during second proposed alternative method would mining than if timbers and other types [Docket No. M–96–33–C] provide at least the same measure of of support are used. In addition, the Pittsburg & Midway Coal Mining protection as would the mandatory petitioner asserts that the proposed Company, P.O. Box 6518, Englewood, standard. alternative method would provide at Colorado 80155–6518 has filed a 12. Pittsburg & Midway Coal Mining least the same measure of protection as petition to modify the application of 30 Company would the mandatory standard. CFR 75.360(c)(1) (preshift examination) [Docket No. M–96–35–C] 8. Eighty-Four Mining Company to its Sebree No. 1 Mine (I.D. No. 15– 17044) located in Webster County, Pittsburg & Midway Coal Mining [Docket No. M–96–31–C] Kentucky. The petitioner proposes to Company, P.O. Box 6518, Englewood Eighty-Four Mining Company, 655 provide positive ventilation by using the 80155–6518 has filed a petition to Church Street, Indiana, Pennsylvania stopping line constructed to separate the modify the application of 30 CFR 15701 has filed a petition to modify the intake and return air courses in the 75.1700 (oil and gas wells) to its Sebree application of 30 CFR 75.1100–2(e) rooms previously developed on the No. 1 Mine (I.D. No. 15–17044) located (quantity and location of firefighting same panel. The petitioner states that in Webster County, Kentucky. The equipment) to its Mine 84 (I.D. No. 36– the stopping line would be constructed petitioner proposes to mine through oil 00958) located in Washington County, and maintained in accordance with the and gas wells. The petitioner asserts that Pennsylvania. The petitioner proposes requirements in 30 CFR 75.333; that the proposed alternative method would Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Notices 20545 provide at least the same measure of e.g., permitting electronic submission of Humanities and the National Science protection as would the mandatory responses. Foundation. standard. Andrew J. Hartman, DEADLINE DATE FOR TRANSMITTAL OF Request for Comments Director, National Institute for Literacy. PROPOSALS: Proposals must be received [FR Doc. 96–11439 Filed 5–6–96; 8:45 am] by Friday, August 2, 1996. Persons interested in these petitions BILLING CODE 6055±01±M PROPOSALS DELIVERED BY MAIL: A may furnish written comments. These proposal sent by mail must be addressed comments must be filed with the Office to the Institute of Museum Services, of Standards, Regulations, and 1100 Pennsylvania Avenue, NW, Room Variances, Mine Safety and Health NEIGHBORHOOD REINVESTMENT 609, Washington, DC 20506. Administration, Room 627, 4015 Wilson CORPORATION Boulevard, Arlington, Virginia 22203. PROPOSALS DELIVERED BY HAND: Sunshine Act Meeting; Regular Proposals that are hand-delivered must All comments must be postmarked or Meeting of the Board of Directors received in that office on or before June be taken to the Institute of Museum 6, 1996. Copies of these petitions are TIME AND DATE: 2:00 p.m., Monday, May Services, 1100 Pennsylvania Avenue, available for inspection at that address. 17, 1996. NW, Room 609, Washington, DC 20506. PLACE: Neighborhood Reinvestment Hand-delivered applications will be Dated: April 30, 1996. accepted between 9 a.m. and 4:30 p.m. Patricia W. Silvey, Corporation, 1325 G Street, N.W., Suite 800, Board Room, Washington, D.C. (Washington DC time) daily, except Director, Office of Standards, Regulations, 20005. Saturdays, Sundays, and Federal and Variances. holidays. An application that is hand- STATUS: Open/Closed. [FR Doc. 96–11273 Filed 5–6–96; 8:45 am] delivered will not be accepted after 4:30 BILLING CODE 4510±43±P CONTACT PERSON FOR MORE INFORMATION: p.m. on the deadline date. Jeffrey T. Bryson, General Counsel/ ADDRESSES: Secretary 202/376–2441. Institute of Museum Services, 1100 Pennsylvania Avenue, Agenda. NATIONAL INSTITUTE FOR LITERACY NW, Washington, DC 20506. I. Call to Order FOR FURTHER INFORMATION CONTACT: Proposed Agency Information II. Approval of Minutes: Rebecca Danvers, Program Director, Collection Activities March 4, 1996, Regular Meeting (202) 606–8539. Deaf and hearing III. Committee Appointments: impaired individuals may call the TDD AGENCY: National Institute for Literacy. a. Audit Committee b. Budget Committee Line, (202) 606–8636. ACTION: Notice and request for c. Personnel Committee SUPPLEMENTARY INFORMATION: The issue comments. IV. Election of Officers of learning in a museum setting is V. Board Appointments complex. Here, learning is viewed both Correction VI. Treasurer’s Report as a process (involving perception and In notice document 96–10329 VII. Executive Director’s Quarterly memory as shaped by prior experience Management Report to develop neurological structures) and appearing on page 17326 in the issue of VIII. Personnel Matters (Closed Meeting) Friday, April 19, 1996, in the first IX. Adjourn as a product (including a range of ideas, feelings and sensations). This view column, Notice 96–10146 appearing on Jeffrey T. Bryson, page 18162, in the issue of Wednesday, mandates a broad conception in General Counsel/Secretary. April 24, 1996, in the third column, considering museum learning. Notice 96–10329 appearing on page [FR Doc. 96–11452 Filed 5–3–96; 1:00 pm] As defined here, museums include 18446 in the issue of Thursday, April BILLING CODE 7570±01±M art, history, natural history, and science 25, 1996, in the second column, and museums; art, nature and science Notice 96–10328 appearing on page centers; historic houses and sites; 18446 in the issue of Thursday, April NATIONAL FOUNDATION ON THE children’s museums planetariums, 25, 1996, in the third column, after ARTS AND THE HUMANITIES arboretums and botanical gardens, zoos Frequency of Collection insert the and aquariums and general and Institute of Museum Services; following correction: specialized museums. They provide a Research in Learning in Museums, wide range of content to a virtually Request for Comments Request for Proposals unlimited variety of audiences. Thus the NIFL solicits comments to: (1) AGENCY: Institute of Museum Services, issues of museum learning cuts across a Evaluate whether the proposed NFAH. broad spectrum of contexts and collection of information is necessary ACTION: Notice of Availability of Funds contents. for the proper performance of the for Cooperative Agreement to Support Museums share many of the functions of the agency, including Research in Learning in Museums. characteristics of other educational whether the information will have organizations both in their educational practical utility. (2) Evaluation the SUMMARY: This announcement applies to missions and in their conduct of accuracy of the agency’s estimates of the a request for proposals to support, educational practice. However, museum burden of the proposal collection of through a cooperative agreement(s), a based learning has important information. (3) Enhance the quality, collaborative team(s) which will design dimensions which may afford unique utility, and clarity of the information to and conduct a program of theoretical experiences for learners: be collected. (4) Minimize the burden of and applied research on learning in Museums learning is inherently the collection of information on those museums. It is intended that support for sensory, experiential and contextual. who are to respond, including through this Request for Proposals is provided Much of what a visitor learns in a the use of appropriate automated or from the Institute of Museum Services, museum is subject specific, generally electronic collection technologies of the National Endowment for the Arts, based on that museum’s role as a other forms of information technology, the National Endowment for the repository of cultural artifacts, but much 20546 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Notices of it is not. Museum learning is often Education and Other Non-Profit applications invested in the United ‘‘object-centered’’ and activity Institutions; A–133 Audits of State and States, as represented by or in the centered,’’ but visitors also perceive and Local Governments. custody of the Commission and other remember the other facets of a museum (Catalogue of Federal Domestic Assistance patents in which the Commission has experience including the rich social, No. 45.301, Institute of Museum Services) legal rights. physical and personal contexts. Dated: May 1, 1996. A copy of the submittal may be Museum learning provides viewed free of charge at the NRC Public Diane B. Frankel, opportunities for active learning and Document Room, 2120 L Street, NW provides for multiple points of entry Director. (Lower Level, Washington, DC. into the learning experience. Because a [FR Doc. 96–11261 Filed 5–6–96; 8:45 am] Members of the public who are in the museum visit may offer varied BILLING CODE 7036±01±M Washington, DC, area can access the experiences, including the potential for submittal via modem on the Public discovery learning and for self-directed Document Room Bulletin Board (NRC’s and self-paced inquiry, museums may NUCLEAR REGULATORY Advanced Copy Document Library) NRC provide learning experiences for a COMMISSION subsystem at FedWorld, 703–321–3339. variety of learners with differing Members of the public who are located characteristics, needs expectations and Agency Information Collection outside of the Washington, DC, area can learning styles. Activities: Submission for OMB dial FedWorld, 1–800–303–9672, or use Although museum learning Review: Comment Request the FedWorld Internet address: experiences include formal, nonformal. AGENCY: U.S. Nuclear Regulatory fedworld.gov (Telnet). The document and informal modes, they often differ Commission (NRC). will be available on the bulletin board from or transcend the typical offerings for 30 days after the signature date of ACTION: Notice of the OMB review of of formal, sequential instruction tied to this notice. If assistance is needed in information collection and solicitation specified goals with clearly identified accessing the document, please contact of public comment. populations which are found in other the FedWorld help desk at 703–487– educational organizations. SUMMARY: The NRC has recently 4608. Additional assistance in locating AVAILABLE FUNDS: An award(s) is submitted to OMB for review the the document is available from the NRC expected to be no greater than following proposal for the collection of Public Document Room, nationally at 1– $1,000,000 and may be less, depending information under the provisions of the 800–397–4209, or within the on the availability of funds and the Paperwork Reduction Act of 1995 (44 Washington, DC, area at 202–634–3273. quality of proposals. The supporting U.S.C. Chapter 35). The NRC hereby Comments and questions should be funding agencies reserve the right to informs potential respondents that an directed to the OMB reviewer by June 6, make one, multiple or no awards as a agency may not conduct or sponsor, and 1996. Peter Francis, Office of result of this request for proposals. The that a person is not required to respond Information and Regulatory Affairs coordinating agency, the Institute of to, a collection of information unless it (3150–0121), NEOB–10202, Office of Museum Services, reserves the right to displays a currently valid OMB control Management and Budget, Washington, negotiate with the applicant to ensure numbers. DC 20503. that the goals of this request for 1. Type of submission new, revision, Comments can also be submitted by proposals are met. or extension: Extension. telephone at (202) 395–3084. APPLICATION FORMS: Applicants may 2. The title of the information The NRC Clearance Officer is Brenda obtain application packets for Research collection: 10 CFR 81, Standard Jo. Shelton, (301) 415–7233. in Learning in Museums, Request for Specifications for Granting of Patent Dated at Rockville, Maryland this 1st day Proposals, by contacting the Institute of Licenses. of May 1996. Museum Services, 1100 Pennsylvania 3. The form number if applicable: For the Nuclear Regulatory Commission. Avenue, NW, Room 609, Washington, 4. How often the collection is Gerald F. Cranford, DC 20506, (202) 606–8539, TDD Line— required: Application for licenses are Designated Senior Official for Information (202) 606–8636, or e-mail at submitted once. Other reports are Resources Management. [email protected]. submitted annually or as other events [FR Doc. 96–11294 Filed 5–6–96; 8:45 am] APPLICABLE REGULATIONS: In addition to require. BILLING CODE 7590±01±P statutes and regulations referenced in 5. Who will be required or asked to the Statement of Assurances, these report: Applicants for and holders of Office of Management and Budget NRC licenses to NRC inventions. Jefferson Proving Ground (U.S. Army), Circulars may apply to the management 6. An estimated number of annual Indiana of project activities by the cooperative respondents: 0. [Docket No. 040±08838] team(s), depending on the 7. The estimated number of annual organizational structure of the official respondents: 0. AGENCY: Nuclear Regulatory applicant(s): A–21 Cost Principles for 8. An estimate of the total number of Commission. Educational Institutions; A–87 Cost hours needed annually to complete the ACTION: Finding of no significant impact Principles for State and Local requirement or request: 35 hours; associated with amendment to Materials Governments; A–102 Uniform however, no applications are License SUB–1435 for Release of Area Administrative Requirements for Grants anticipated during the next three years. South of Firing Line for Unrestricted and Cooperative Agreements to State 9. An indication of whether Section Use, U.S. Army Jefferson Proving and Local Governments; A–110 Uniform 3507(d), Pub. L 104–13 applies: Not Ground, Madison, IN. Administrative Requirement for Grants applicable. The U.S. Nuclear Regulatory and Other Agreements to Non-Profit 10. Abstract: 10 CFR Part 81 Commission is considering issuing an Organizations; A–122 Cost Principles establishes the standard specifications amendment to Material License No. for Non-Profit Organizations; A–128 for the issuance of licenses to rights in SUB–1435, to release, for unrestricted Audits of Institutions of Higher inventions covered by patents or patent use, that portion of the U.S. Army Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Notices 20547

Jefferson Proving Ground (JPG), The portion of the JPG site located of the firing line can be released for Madison, IN, located south of the firing south of the firing line has been unrestricted use. line, in response to a license remediated to levels in compliance with Alternatives to the Proposed Action amendment application dated the current NRC decommissioning September 29, 1995. criteria for unrestricted release. The Alternatives to the proposed actions licensee submitted a Final Survey include: Summary of Environmental Assessment Report (FSR) to NRC by letter dated (a) Transferring the License to another Background March 8, 1995. The staff reviewed the Army Command; The U.S. Army (the licensee) holds licensee’s FSR and conducted a (b) Postponing release of the area NRC Material License No. SUB–1435 to Confirmatory Radiological Survey (CRS) south of the firing line until final use, store, and test depleted uranium on June 6–8, 1995. Based on the FSR disposition of the area north of the firing (DU) munitions at the JPG, Madison, and CRS data, the staff concluded that line is determined; and Indiana. In accordance with the Defense the area south of the firing line meets (c) Taking no action. Authorization Amendments and Base NRC criteria for unrestricted release and The JPG Army Command is a Realignment and Closure Act of 1988 can be removed from License SUB– subordinate command to TECOM. The (Public Law 100–526), the licensee was 1435. technical capabilities of TECOM exceed required to close the JPG base on Environmental Impact of the Proposed those of the JPG Command. The Army September 30, 1995. Action had the option of selecting other The JPG site has been divided into commands with equivalent or greater two parts, separated along a line (firing The actual oversight of the licensee’s capability upon elimination of the JPG line) connecting Gate 19 (west) with licensed activities at JPG was effectively Command upon base closure. The Gate 1A (east). The two areas have been transferred from the JPG Army licensee’s decision to transfer the designated ‘‘the area north of the firing Command to TECOM, on closure of the license responsibility to a higher level line’’ and ‘‘the area south of the firing JPG facility. The overall effects of base Command (TECOM) with greater closure, on the JPG license oversight, line.’’ technical capability is acceptable. were the elimination of a lower level of The area north of the firing line Postponing release of the area south of management and the transfer of contains the DU impact area and the firing line is not consistent with the responsibility to a higher level of consists of approximately 12,000,000 timeliness requirements of 10 CFR management within the same m 2 (3,000 acres) located in the south- 40.42(g)(1) or the licensing provisions of organization. The practical impact of the central portion of the site. The area § 40.42(j). Therefore, timely release of located south of the firing line contains transfer is a change in the radiation protection officers and their locations. the remediated JPG portion south of the buildings and facilities that were used firing line is consistent with NRC for storage of DU material and is the The staff, based on its review of the licensee’s organization, has determined regulations. In addition, postponing its area that the licensee has requested be release would hinder the licensee’s released for unrestricted use. that it is acceptable for the licensee to transfer licensing responsibility for the plans to use the land and facilities for Identification of the Proposed Action area north of the firing line to what other useful purposes. The ‘‘no action alternative’’ is In a letter dated September 29, 1995, amounts to a higher level of unacceptable for the same reasons as the licensee referenced previous management within the same postponed release. briefings and correspondence as the organization. The reassignment of the bases for undertaking the following JPG licensing responsibility to this Agencies and Persons Consulted proposed actions: (1) Transferring the higher level of management (TECOM) will not have an adverse impact on the NRC has consulted with the Indiana license (SUB–1435) to Headquarters, State Department of Health, Division of U.S. Army Test and Evaluation environment nor on the health and Indoor and Radiological Health Command (TECOM), until license safety of the public. concerning this environmental termination and defining the DU impact The licensee’s submittals indicate that assessment. This agency has concurred area north of the firing line as the area the residual contamination levels with the NRC’s assessment that the area that would be covered by the license comply with NRC’s criteria for south of the firing line at JPG can be (SUB–1435) transferred to TECOM; and unrestricted release established in ‘‘The released for unrestricted use. (2) informing NRC of the completion of Action Plan to Ensure Timely the decommissioning of the area south Decommissioning of Site Finding of No Significant Impact of the firing line and the proposed Decommissioning Management Plan Based on the environmental release of the area for unrestricted use. Sites’’ (57 FR 13391) of April 16, 1992. A confirmatory radiological survey assessment, the Commission concludes The Need for the Proposed Action conducted by NRC provided the staff that the issuance of the license In accordance with the requirements with confidence in the accuracy and amendment will not have a significant of the Defense Authorization reliability of the licensee’s final survey effect on the quality of the human Amendment and Realignment Act of results. To alleviate concerns regarding environment. Accordingly, the 1988 (Public Law 100–526), the licensee potential inadvertent intrusion, from the Commission has determined not to was required to close the JPG site on area south of the firing line, into the DU prepare an environmental impact September 30, 1995. Upon base closure impact area north of the firing line, the statement for the proposed action. the JPG Army Command which licensee has recently completed The environmental assessment and managed the licensed material at the installation of a fence that will separate the documents related to this proposed site was eliminated. On elimination of the area south of the firing line from the action are available for public the JPG Army Command, responsibility area north of the firing line. The NRC inspection and copying at NRC’s Public for the licensed material at the JPG site finds that because these criteria have Document Room, 2120 L Street, N.W., was effectively transferred from the JPG been met and the fence has been Washington, DC 20555. Command (subordinate command) to installed, there is no significant impact Dated at Rockville, Maryland this day of TECOM. on the environment and the area south April, 1996. 20548 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Notices

For the Nuclear Regulatory Commission. Environmental Impacts of the Proposed concentrations to be minimal, because Robert A. Nelson, Action: the sludges and soils will be handled in Acting Chief, Low-Level Waste and The NRC staff reviewed the levels of a wet state. NRC staff agrees with this Decommissioning Projects Branch, Division contamination, the proposed assessment. of Waste Management, Office of Nuclear Liquids discharged to the U.S. remediation and decommissioning Material Safety and Safeguards. Environmental Protection Agency (EPA) methods, BPC’s preferred disposal [FR Doc. 96–11293 Filed 5–6–96; 8:45 am] permitted deep well injection system option, and the radiological and BILLING CODE 7590±01±P will have concentrations less than the environmental controls that will be used EPA proposed drinking water limits for during the remediation and uranium, and will result in doses less decommissioning. These controls Environmental Assessment Finding of than 0.057 mSv/yr (5.7 mrem/yr) to include the as low as is reasonably No Significant Impact Related to individuals hypothetically, consuming achievable (ALARA) program, worker Amendment to Materials License No. this water. SUB±908 BP Chemicals, Inc., Lima, OH dosimetry, a bioassay program for The BPC performed dose assessments workers, air monitoring, routine for two of the three closure cells using The U.S. Nuclear Regulatory surveys, and routine monitoring of both RESRAD computer code, Version 5.05. Commission is considering issuing an airborne and liquid effluent releases to The RESRAD computer code estimates amendment to Materials License No. meet 10 CFR Part 20 radiation radiation dose impacts assuming a SUB–908, held by BP Chemicals, Inc. protection requirements. Worker and resident-farmer scenario, where an (BPC), to authorize the remediation, public doses will be limited so that individual would live in a residence on decommissioning and construction of exposures will not exceed 10 CFR Part the site, grow food, and consume all the mixed waste pond closure project at 20 requirements. drinking water from a water well. The its facility in Lima, Ohio. BPC proposed to remediate the NRC staff verified BPC’s analyses and On November 19, 1991, NRC contaminated sludge ponds in obtained similar results to BPC’s. These published a notice of Consideration of accordance with ‘‘Guidelines for dose assessments include the worst-case Amendment to BPC’s License and Decontamination of Facilities and scenarios, with the proposed cover over Opportunity for Hearing (56 FR 58406). Equipment Prior to Release for the closure cells assumed to have been There was no response to that notice. Unrestricted Use or Termination of removed. The predicted doses are less Environmental Assessment Summary Licenses for Byproduct, Source, and than NRC’s limit of 1 mSv/yr (100 Special Nuclear Materials,’’ dated mrem/yr) for radiation doses to the Proposed Action August 1987. BPC also proposed to public in 10 CFR Part 20. NRC staff The proposed action is as proposed by dispose of the depleted uranium- considers that, if a third closure cell is the licensee in a second revised contaminated mixed wastes in the constructed, the dose assessment results application dated February 7, 1994, RCRA-designed onsite closure cells, in of the two closure cells will envelope which supplemented the initial accordance with the 1981 BTP. Based the dose impacts of the third closure application dated August 15, 1991, and on uranium solubility testing of the cell. the first revision dated February 28, mixed wastes, the maximum depleted During the remediation of the waste 1992. In this action, BPC is proposing to uranium concentration that is from the ponds and placement of the use onsite disposal, under 10 CFR Part acceptable for disposal in the closure waste into the closure cells, workers 20.2002, at its facility in Lima, Ohio, to cells is 11.1 Bq/gm (300 pCi/gm) total will receive doses from direct exposure dispose of the mixed waste with depleted uranium. and from the inhalation of airborne concentrations up to the Option 2 limit The staff also analyzed the depleted uranium. The maximum in NRC’s 1981 Branch Technical radiological impacts to the public from estimated direct exposure is for workers Position (1981 BTP) on ‘‘Disposal or the disposal of depleted uranium- standing on the contaminated soil from Onsite Storage of Thorium or Uranium contaminated sludges and soils in the the ponds. The estimated exposure is Wastes from Past Operations’’ (46 FR proposed on-site closure cells. 4.0E–05 mSv/hr (4.0E–03 mrem/hr). 52061). Materials to be disposed of are Radiological impacts on members of the Assuming a 2000-hour work year, the currently located in surface public could result from inhalation and maximally exposed worker would impoundments, hereinafter called ingestion of releases of radioactivity in receive an annual dose of 0.08 mSv/yr ponds, that contain sludges air and in water during the remediation (8 mrem/yr). The resulting dose is a contaminated with mixed wastes. The operations, and direct exposure to small fraction of the 50 mSv/yr (5000 disposal will be in up to three lined radiation from radioactive materials at mrem/yr) limit for workers (routine closure cells designed and constructed the site during remediation operations. occupational exposure) in 10 CFR Part according to the Resource Conservation The public will also be exposed to 20. and Recovery Act (RCRA) criteria. radiation as a result of the on-site Based on the above evaluations, disposals in the closure cells. radiation exposures, of persons living or Need for Proposed Action: Decommissioning workers will receive traveling near the site, caused by onsite The proposed action is necessary to doses primarily by ingestion, inhalation operations, will be well within limits remediate the existing depleted uranium and direct exposure during the contained in NRC’s regulations and will contamination and to decommission the remediation activities. In addition to be small in comparison to natural ponds containing the radioactive impacts from routine operations, the background radiation. The licensee has wastes. Onsite disposal is proposed to potential radiological consequences of a radiation protection program that will accomplish the objectives of the accidents were considered. maintain radiation exposures and remediation and decommissioning. The BPC provided an estimate of the effluent releases within the limits of 10 Based on the advantages and dose to the public from airborne CFR Part 20, and will maintain disadvantages of the five other effluents to be generated during the exposures ALARA. alternatives investigated, BPC remediation activities associated with BPC and the NRC staff also evaluated concluded that the 10 CFR Part 20.2002 the pond closure project. During normal the radiological impacts from potential disposal option is the preferred choice. operations, the licensee expects airborne accidents. The predicted maximum Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Notices 20549 exposure to a member of the public • On-site temporary storage followed amendment application submittals (BPC employee not involved in the by off-site permanent disposal at a dated August 15, 1991, February 28, remediation project) from an accident future, commercial low-level radioactive 1992, and February 7, 1994; and (2) the scenario would be 0.07 mSv (7 mrem) waste disposal site; complete Environmental Assessment. internal exposure. This potential • Treatment of the mixed waste to The documents are available for public exposure would result when a truck, remove the hazardous constituents and inspection at the Commission’s Public transporting contaminated soil, tipped disposal of the remaining low-level Document Room, 2120 L Street, N.W., over, spread fuel over the spilled soil, radioactive waste at a commercial low- Washington, DC 20555. and caught fire. The exposed individual level radioactive waste disposal site; • Dated at Rockville, Maryland, this 1st day was assumed to be standing downwind On-site disposal under 10 CFR Part of May 1996. of the accident at the controlled access 20.2002 (BPC’s preferred option). For the Nuclear Regulatory Commission. area boundary. The calculated dose is a The advantages and disadvantages of Robert A. Nelson, small fraction of the annual dose limit these alternatives, are described in the Acting Chief, Low-Level Waste and to the public of 1.0 mSv/yr (100 mrem/ EA. Decommissioning Projects Branch, Division yr) in 10 CFR Part 20. The NRC staff Conclusions of Waste Management, Office of Nuclear verified these calculations used by the Material Safety and Safeguards. licensee. The onsite permanent disposal under [FR Doc. 96–11291 Filed 5–6–96; 8:45 am] The predicted maximum exposure to 10 CFR Part 20.2002 (the BPC’s BILLING CODE 7590±01±P a worker from an accident scenario, preferred option) consists of removing other than the above truck accident, and stabilizing the contaminated would be 7.7E–04 mSv (7.7E–02 mrem). material, and disposing of the wastes in Sunshine Act Meeting This is based on an explosion of the pug up to three closure cells designed and mill mixer, where the worker was constructed according to the RCRA AGENCY HOLDING THE MEETING: Nuclear immersed in a ‘‘contaminated’’ cloud of criteria. This disposal option complies Regulatory Commission. suspended sludge for 10 seconds while with the provisions of 10 CFR Part DATE: Weeks of May 6, 13, 20, and 27, leaving the immediate area of the 20.2002. 1996. explosion. This resultant exposure is a The environmental and public health PLACE: Commissioners’ Conference small fraction of the 50 mSv/yr (5000 impacts would be minimized to ALARA Room, 11555 Rockville Pike, Rockville, mrem/yr) annual exposure limit for standards. No additional lands are Maryland. radiation workers and would not required. There will be no adverse STATUS: Public and Closed. significantly add to the worker’s annual impacts caused by off-site waste exposure. The NRC staff verified transportation because no off-site waste MATTERS TO BE CONSIDERED: calculations used by the licensee. transport is involved. Also, Because no wastes are expected to be occupational exposures will be Week of May 6 shipped offsite to a licensed low-level minimized. The estimated cost for the Friday, May 10 waste disposal site, there are no mixed waste pond closure project is $6 10:00 a.m. expected impacts from the million, plus a contingency factor of 25 Briefing on Severe Accident Master transportation or offsite disposal of percent. Integration Plan (Public Meeting) radioactive materials. The NRC staff concludes that there are (Contact: Themis Speis, 301–415–6802) The NRC staff also considered no reasonably available alternatives, to 11:30 a.m. nonradiological impacts and concluded the BPC’s preferred action, that are Affirmation Session (Public Meeting) (if that all such impacts are negligible. obviously superior. needed) The NRC staff examined the Agencies and Persons Consulted, and Week of May 13—Tentative distribution of minority and low-income Sources Used Monday, May 13 communities near the BPC site. Based on the data, there is no potential for This EA was prepared entirely by 2:00 p.m. environmental justice issues because of NRC’s Office of Nuclear Material Safety Briefing by Commonwealth Edison (Public race, because no minority exceeds 20 and Safeguards staff in Rockville, Meeting) percent of the total population. Because Maryland, and Region III staff in Lisle, Wednesday, May 15 the site represents an insignificant risk Illinois. Review comments were 2:00 p.m. to the public health and safety, and the solicited on the draft EA from the Ohio Briefing on Performance Assessment human environment, any residual Department of Health, the Ohio Program in HLW, LLW, and SDMP radioactivity left at the site is not Environmental Protection Agency, and (Public Meeting) expected to disproportionately impact the Allen County Combined Health (Contact: Norman Eisenberg, 301–415– minority or low income populations District, Lima, Ohio. 7285) near the BPC site. The staff concludes 3:30 p.m. Finding of No Siginficant Impact Affirmation Session (Public Meeting) (if that no environmental justice potential needed) occurs at the BPC site. Based upon the environmental assessment, the Commission concludes Week of May 20—Tentative Alternatives to the Proposed Action that the proposed action will not have Wednesday, May 22 Six alternatives were investigated that a significant impact on the quality of the resulted in the selection of onsite human environment. Accordingly the 10:00 a.m. Commission has determined not to Briefing on Status of NRC Operator disposal as the recommended and Licensing Initial Examination Pilot preferred option by BPC. They are: prepare an environmental impact • Process (Public Meeting) No action; statement for the proposed action. (Contact: Stuart Richards, 301–415–1031) • Pond water treatment only; Additional Information 11:30 a.m. • Disposal at an existing commercial Affirmation Session (Public Meeting) (if low-level radioactive waste disposal For further details with respect to the needed) site; proposed action, see: (1) BPC’s license 2:00 p.m. 20550 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Notices

Briefing by International Programs effectiveness of the FHWA’s programs FOR FURTHER INFORMATION CONTACT: (Closed—Ex. 1) and policies. The Committee reviews Beryl Gordon, (202) 927–5610. [TDD for Friday, May 24 research projects, regulations, and the hearing impaired: (202) 927–5721.] 9:30 a.m. programs including those involving SUPPLEMENTARY INFORMATION: Meeting with Advisory Committee on commercial motor vehicle licensing and Additional information is contained in Reactor Safeguards (ACRS) (Public taxation, uniformity, and safety. the Board’s decision. To purchase a Meeting) Meetings of the Committee are open to copy of the full decision, write to, call, (Contact: John Larkins, 301–415–7360) the public and must be announced in or pick up in person from: DC NEWS & Week of May 27—Tentative the Federal Register. Copies of the DATA, INC., Room 2229, 1201 Committee’s charter are available upon Constitution Avenue, N.W., Thursday, May 30 request. Washington, DC 20423. Telephone: 2:00 p.m. FOR FURTHER INFORMATION CONTACT: Ms. (202) 289–4357/4359. [Assistance for Briefing on Status of Dry Cask Storage Jill L. Hochman, HIA–20, Room 3104, the hearing impaired is available Issues (Public Meeting) through TDD services (202) 927–5721.] (Contact: William Travers, 301–415–8500) 400 Seventh Street, SW., Washington 20590, (202) 366–1861. Office hours are Decided: April 23, 1996. Friday, May 31 from 7:45 a.m. to 4:15 p.m. e.t., Monday By the Board, Chairman Morgan, Vice 10:00 a.m. through Friday, except for Federal Chairman Simmons, and Commissioner Briefing on NRC Inspection Activities holidays. Owen. (Public Meeting) (23 U.S.C. 315; 49 CFR 1.48) Vernon A. Williams, 11:30 a.m. Secretary. Affirmation Session (Public Meeting) (if Issued on: April 29, 1996. needed) Rodney E. Slater, [FR Doc. 96–11315 Filed 5–6–96; 8:45 am] BILLING CODE 4915±00±P *The schedule for Commission Federal Highway Administrator. meetings is subject to change on short [FR Doc. 96–11371 Filed 5–6–96; 8:45 am] notice. To verify the status of meetings BILLING CODE 4910±22±P [STB Finance Docket No. 32899] call (Recording)—(301) 415–1292. Owensville Terminal Company, Inc.Ð CONTACT PERSON FOR MORE INFORMATION: Surface Transportation Board 1 Acquisition and Operation Bill Hill (301) 415–1661. ExemptionÐPoseyville & Owensville This notice is distributed by mail to several Railroad Company, Inc. [9623] hundred subscribers: if you no longer wish [STB Finance Docket No. 32857] to receive it, or would like to be added to it, Owensville Terminal Company, Inc. please contact the Office of the Secretary, Burlington Northern Railroad (OTC), a noncarrier, filed a notice of Attn: Operations Branch, Washington, D.C. CompanyÐLease ExemptionÐ Union exemption to acquire from Poseyville & 20555 (301–415–1963). Pacific Railroad Company Owensville Railroad Company, Inc. In addition, distribution of this meeting AGENCY: Surface Transportation Board. (P&O), and operate approximately 11.2 notice over the internet system is available. miles of rail branch line in Gibson and If you are interested in receiving this ACTION: Notice of exemption. Commission meeting schedule electronically, Posey Counties, IN, between milepost 271.0 in Poseyville and milepost 282.2 please send an electronic message to SUMMARY: The Board exempts under 49 in Owensville.2 The transaction was to [email protected] or [email protected]. U.S.C. 10502 from the prior approval be consummated on or after April 19, * * * * * requirements of 49 U.S.C. 11323–25 the 3 Dated: May 3, 1996. 1996. lease by Burlington Northern Railroad This notice is filed under 49 CFR Andrew L. Bates, Company of Union Pacific Railroad 1150.31. If the notice contains false or Senior Level Advisor, Office of the Secretary. Company’s 1.0-mile line of railroad misleading information, the exemption [FR Doc. 96–11529 Filed 5–3–96; 3:51 pm] from milepost 32.0 to milepost 33.0, at is void ab initio. Petitions to reopen the BILLING CODE 7590±01±M Valmont, CO, subject to standard employee protective conditions. 1 The ICC Termination Act of 1995, Pub. L. No. DATES: This exemption is effective on 104–88, 109 Stat. 803, which was enacted on DEPARTMENT OF TRANSPORTATION June 6, 1996. Petitions to stay must be December 29, 1995, and took effect on January 1, 1996, abolished the Interstate Commerce filed by May 17, 1996. Petitions to Commission and transferred certain functions to the Federal Highway Administration reopen must be filed by May 28, 1996. Surface Transportation Board (Board). This notice relates to functions that are subject to Board National Motor Carrier Advisory ADDRESSES: Send pleadings referring to jurisdiction pursuant to 49 U.S.C. 10901. Committee; Charter Renewal STB Finance Docket No. 32857 to: (1) 2 P&O owns the line and operates it as a branch Surface Transportation Board, Office of line, using equipment and labor supplied under AGENCY: Federal Highway the Secretary, Case Control Branch, contract by Garden Spot & Ohio Railroad (GS&O). Administration (FHWA), DOT. 1201 Constitution Avenue, N.W., The line connects with GS&O at Poseyville. 3 P&O was placed into receivership by the Gibson ACTION: Notice of charter renewal. Washington, DC 20423; and (2) Michael County Superior Court, Gibson County, IN, in Cause E. Roper, 3800 Continental Plaza, 777 No. 26001–9303–CP–0010. On March 19, 1993, the SUMMARY: The charter for the National Main Street, Fort Worth, TX 76102– court appointed Robert W. Musgrave (Musgrave) Motor Carrier Advisory Committee (the 5384. receiver for P&O. Pursuant to a March 26, 1996 Committee) has been renewed for a two- court order, Musgrave agreed to sell the line (real estate, leases and licenses, track, ties, and other year period of time from 1996 through 1 The ICC Termination Act of 1995, Pub. L. No. track materials) to RailAmerica, Inc. (RailAmerica), 1998, effective on January 29, 1996. The 104–88, 109 Stat. 803 (the Act), which was enacted a Delaware corporation. RailAmerica, in turn, will Committee acts in an advisory capacity on December 29, 1995, and took effect on January assign its rights and interests in the line to OTC, to the Federal Highway Administrator. 1, 1996, abolished the Interstate Commerce and Huron and Eastern Railway Company, Inc. Commission and transferred certain functions to the (Huron), will supply the labor and equipment, as It makes recommendations intended to Surface Transportation Board (Board). This notice needed, for OTC to operate the line. OTC and improve the safety and productivity of relates to functions that are subject to Board Huron are Michigan corporations and RailAmerica the motor carrier industry and the jurisdiction pursuant to 49 U.S.C. 11323. subsidiaries. Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Notices 20551 proceeding to revoke the exemption Company (Mountain Laurel), and Red control of P&S together with the other under 49 U.S.C. 10502(d) [formerly Bank Railroad Company (Red Bank).3 railroads in its system after P&S section 10505(d)] may be filed at any All of the lines to be acquired and becomes a Class III rail carrier. time. The filing of a petition to reopen operated by P&S are in the State of If the verified notice contains false or will not automatically stay the Pennsylvania and are from: (1) misleading information, the exemption transaction. An original and 10 copies of Shawmut, being 96.747 miles of line (a) is void ab initio. Petitions to reopen the all pleadings, referring to STB Finance between Brockway Yard, Brockway proceeding to revoke the exemption Docket No. 32899, must be filed with (milepost 0.0) and Freeport (milepost under 49 U.S.C. 10502(d) may be filed the Surface Transportation Board, Office 88.027), a distance of 88.027 miles, (b) at any time. The filing of a petition to of the Secretary, Case Control Branch, between milepost 0.98 of the main line reopen will not automatically stay the 1201 Constitution Ave., N.W., at Snyder Township (a/k/a milepost 0.0) transaction. An original and 10 copies of Washington, DC 20423. In addition, a and the connection with B&P (milepost all pleadings, referring to STB Finance copy of each pleading must be served on 0.37), a distance of .37 miles, (c) Docket No. 32903, must be filed with Robert P. vom Eigen, Esq., Hopkins & between Brookville Yard (milepost the Surface Transportation Board, Office Sutter, 888 16th St., N.W., Washington, 20.89) and the connection with of the Secretary, Case Control Branch, D.C. 20006. Mountain Laurel (milepost 0.30), a 1201 Constitution Avenue, N.W., Decided: April 29, 1996. distance of .30 miles, (d) between Washington, DC 20423. In addition, a By the Board, David M. Konschnik, milepost 24.29 of the main line at Knox copy of each pleading must be served on Director, Office of Proceedings. Township (a/k/a milepost 0.0) to the Eric M. Hocky, Esquire, Gollatz, Griffin Vernon A. Williams, end of track (milepost 3.65), a distance & Ewing, P.C., 213 West Miner Street, Secretary. of 3.65 miles, (e) between milepost P.O. Box 796, West Chester, PA 19381– [FR Doc. 96–11314 Filed 5–6–96; 8:45 am] 60.42 of the main line at Madison (a/k/ 0796. a milepost 0.0) and the end of track BILLING CODE 4915±00±P Decided: May 1, 1996. (milepost 3.12), a distance of 3.12 miles, By the Board, David M. Konschnik, and (f) between Milepost 69.86 of the Director, Office of Proceedings. [STB Finance Docket No. 32903] main line in East Franklin (a/k/a Vernon A. Williams, milepost 0.0) and the connection with Secretary. Pittsburg & Shawmut Railroad, Inc.Ð B&P (milepost 1.28), a distance of 1.28 Acquisition and Operation miles; (2) Mountain Laurel,4 being 127.7 [FR Doc. 96–11316 Filed 5–6–96; 8:45 am] ExemptionÐRail Lines Controlled by miles of line (a) between Lawsonham BILLING CODE 4915±00±P Arthur T. Walker Estate Corporation (milepost 6.0) and Driftwood (milepost (The Pittsburg & Shawmut Railroad 110.0) a distance of 104 miles, and (b) Company, Red Bank Railroad between Rose (Brookville) (milepost 0.0) DEPARTMENT OF THE TREASURY Company and Mountain Laurel and Piney (milepost 23.7), a distance of Office of the Comptroller of the Railroad Company) [9544] 23.7 miles; and (3) Red Bank’s 12.5 Currency Pittsburg & Shawmut Railroad, Inc. miles of leased line, being (a) between (P&S), a noncarrier, has filed a verified Lawsonham (milepost 0.0) and Sligo Proposed Collection; Comment notice of exemption under 49 CFR (milepost 10.5), a distance of 10.5 miles, Request 1150.31 to acquire and operate all of the and (b) between the end of track lines of railroad controlled by Arthur T. (milepost 4.0) and Lawsonham AGENCY: Office of the Comptroller of the Walker Estate Corporation (ATWEC),2 (milepost 6.0), a distance of 2.0 miles, Currency (OCC), Treasury. viz., the lines owned by The Pittsburg & for a total mileage of 236.947. ACTION: Notice and request for Shawmut Railroad Company Consummation was expected to be on comments. (Shawmut), Mountain Laurel Railroad or about April 25, 1996. This proceeding is related to Genesee SUMMARY: The OCC, as part of its 1 The ICC Termination Act of 1995, Pub. L. No. & Wyoming Inc.—Continuance in continuing effort to reduce paperwork 104–88, 109 Stat. 803, which was enacted on Control Exemption—Pittsburg & and respondent burden, invites the December 29, 1995, and took effect on January 1, general public and other Federal 1996, abolished the Interstate Commerce Shawmut Railroad, Inc., STB Finance Commission (ICC) and transferred certain functions Docket No. 32904, wherein Genesee & agencies to take this opportunity to to the Surface Transportation Board (Board). This Wyoming, Inc. has concurrently filed a comment on proposed and/or notice relates to functions that are subject to Board petition for exemption to continue in continuing information collections, as jurisdiction pursuant to 49 U.S.C. 10901. required by the Paperwork Reduction 2 P&S maintains, and we agree, that this 3 transaction falls under 49 U.S.C. 10901. Because Red Bank operates, with Shannon Transport, Act of 1995. Currently, the OCC is P&S, a noncarrier, is acquiring all rail assets of three Inc. (Shannon), its rail lines under a lease and soliciting comments concerning an separate carriers, it could be argued that the operating agreement authorized in Finance Docket information collection titled Interpretive No. 31705, Shannon Transport, Inc., and Red Bank transaction is subject to 49 U.S.C. 11323(a)(4). Rulings (12 CFR 7). However, although Shawmut, Mountain Laurel and Railroad Company—Acquisition and Operation Red Bank are now separate, substantial corporate Exemption—Consolidated Rail Corporation. DATES: Written comments should be entities, together they comprise the single rail Shannon has indicated that it will provide its submitted by June 6, 1996. system of ATWEC. P&S will acquire and commence written consent to the assignment of that agreement operation of the three rail lines simultaneously, and to P&S at the closing of the transaction prior to the ADDRESSES: Direct all written comments operate them as a single carrier. As a practical commencement of operations by P&S. to the Communications Division, matter, the only effect of processing this transaction 4 The ICC approved Mountain Laurel’s acquisition Attention: 1557–0204, Third Floor, under section 10901, as opposed to section 11323, of these lines in Finance Docket No. 31974, Office of the Comptroller of the is that the class exemption at 49 CFR 1150.31 is Mountain Laurel Railroad Company—Acquisition available for section 10901 transactions involving and Operation Exemption—Consolidated Rail Currency, 250 E Street SW., the creation of a Class III carrier. Because this Corporation. By petition filed December 28, 1993, Washington, DC 20219. In addition, transaction only involves Class III carriers, it is the Brotherhood of Maintenance of Way Employees comments may be sent by facsimile immaterial, for purposes of employee protective seeks to revoke the exemption. This matter is transmission to (202) 874–5274, or by arrangements, whether the transaction falls under pending before the Board, and, as a result, P&S’s section 10901 or section 11323. See 49 U.S.C. acquisition of Mountain Laurel is subject to final electronic mail to 10901(c) and 11326(c). Board action in Finance Docket No. 31974. [email protected]. 20552 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Notices

FOR FURTHER INFORMATION CONTACT: ACTION: Notice and request for information is necessary for the proper Additional information or a copy of the comments. performance of the functions of the collection may be obtained by agency, including whether the contacting Jessie Gates or Dionne Walsh, SUMMARY: The Department of the information shall have practical utility; (202) 874–5090, Legislative and Treasury, as part of its continuing effort (b) the accuracy of the agency’s estimate Regulatory Activities Division (1557– to reduce paperwork and respondent of the burden of the collection of 0204), Office of the Comptroller of the burden, invites the general public and information; (c) ways to enhance the Currency, 250 E Street SW., other Federal agencies to take this quality, utility, and clarity of the Washington, DC 20219. opportunity to comment on proposed information to be collected; and (d) SUPPLEMENTARY INFORMATION: and/or continuing information ways to minimize the burden of the Title: Interpretive Rulings (12 CFR 7). collections, as required by the collection of information on OMB Number: 1557–0204. Paperwork Reduction Act of 1995, respondents, including through the use Form Number: None. Public Law 104–13 (44 U.S.C. of automated collection techniques or Abstract: This information collection 3506(c)(2)(A)). Currently, the IRS is other forms of information technology. covers various recordkeeping soliciting comments concerning Form requirements in the interpretive rulings 8697, Interest Computation Under the Approved: April 29, 1996. in 12 CFR Part 7. National banks need Look-Back Method for Completed Long- Garrick R. Shear, these records to insure their compliance Term Contracts. IRS Reports Clearance Officer. with applicable banking law and DATES: Written comments should be [FR Doc. 96–11347 Filed 5–6–96; 8:45 am] regulatory requirements. The OCC uses received on or before July 8, 1996 to be BILLING CODE 4830±01±U these records as an audit tool to verify assured of consideration. bank compliance. ADDRESSES: Direct all written comments Type of Review: Renewal of OMB Proposed Collection; Comment to Garrick R. Shear, Internal Revenue approval without change. Request for Form MSR E±665 Service, room 5571, 1111 Constitution Affected Public: Businesses or other for-profit. Avenue NW., Washington, DC 20224. AGENCY: Internal Revenue Service (IRS), Number of Respondents: 2,430. FOR FURTHER INFORMATION CONTACT: Treasury. Total Annual Responses: 2,430. Requests for additional information or ACTION: Notice and request for Frequency of Response: copies of the form(s) and instructions comments. Recordkeeping. should be directed to Martha R. Brinson, Total Annual Burden Hours: 4,156. (202) 622–3869, Internal Revenue SUMMARY: The Department of the Treasury, as part of its continuing effort Comments Service, room 5571, 1111 Constitution Avenue NW., Washington, DC 20224. to reduce paperwork and respondent burden, invites the general public and Comments submitted in response to SUPPLEMENTARY INFORMATION: this notice will be summarized and/or Title: Interest Computation Under the other Federal agencies to take this included in the request for OMB Look-Back Method for Completed Long- opportunity to comment on proposed approval. All comments will become a Term Contracts. and/or continuing information matter of public record. Comments are OMB Number: 1545–1031. collections, as required by the invited on: Form Number: Form 8697. Paperwork Reduction Act of 1995, (a) Whether the collection of Abstract: Taxpayers required to Public Law 104–13 (44 U.S.C. information is necessary for the proper account for all or part of any long-term 3506(C)(2)(A)). Currently, the IRS is performance of the functions of the contract entered into after February 28, soliciting comments concerning Form agency, including whether the 1986, under the percentage of MSR E–665 (formerly SWR E–665), information shall have practical utility; completion method must use Form 8697 Deduction for Depletion on Ground (b) The accuracy of the agency’s to compute and report interest due or to Water Used for Irrigation. estimate of the burden of the collection be refunded under Internal Revenue DATES: Written comments should be of information; Code section 460(b)(3). The IRS uses received on or before July 8, 1996 to be (c) Ways to enhance the quality, assured of consideration. utility, and clarity of the information to Form 8697 to determine if the interest has been figured correctly. ADDRESSES: Direct all written comments be collected; and to Garrick R. Shear, Internal Revenue (d) Ways to minimize the burden of Current Actions: There are no changes being made to the form at this time. Service, room 5571, 1111 Constitution the collection on respondents, including Avenue NW., Washington, DC 20224. through the use of automated collection Type of Review: Extension of a FOR FURTHER INFORMATION CONTACT: techniques or other forms of information currently approved collection. Requests for additional information or technology. Affected Public: Individuals or households and businesses or other for- copies of the information collection Dated: April 30, 1996. profit organizations. should be directed to Carol Savage, Karen Solomon, Estimated Number of Respondents: (202) 622–3945, Internal Revenue Director, Legislative & Regulatory Activities 5,000. Service, room 5569, 1111 Constitution Division. Estimated Time per Respondent: 12 Avenue NW., Washington, DC 20224. [FR Doc. 96–11376 Filed 5–06–96; 8:45 am] hr. 39 min. SUPPLEMENTARY INFORMATION: BILLING CODE 4810±33±P Estimated Total Annual Burden Title: Form MSR E–665, Deduction for Hours: 63,270. Depletion on Ground Water Used for REQUEST FOR COMMENTS: Comments Irrigation. Internal Revenue Service submitted in response to this notice will OMB Number: 1545–0520. Proposed Collection; Comment be summarized and/or included in the Form Number: Form MSR E–665. Request for Form 8697 request for OMB approval. All Abstract: This form provides a comments will become a matter of standard method of computing and AGENCY: Internal Revenue Service (IRS), public record. Comments are invited on: reporting water depletion deductions by Treasury. (a) Whether the collection of taxpayers who extract ground water Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Notices 20553 from the Ogallala geological formation. DATES: Written comments should be Proposed Collection; Comment The IRS uses the information to received on or before July 8, 1996 to be Request for Form 4563 determine if the depletion deduction assured of consideration. AGENCY: Internal Revenue Service (IRS), has been computed correctly. ADDRESSES: Direct all written comments Treasury. Current Actions: There are no changes to Garrick R. Shear, Internal Revenue being made to the form at this time. Service, room 5571, 1111 Constitution ACTION: Notice and request for Type of Review: Extension of a Avenue NW., Washington, DC 20224. comments. currently approved collection. FOR FURTHER INFORMATION CONTACT: SUMMARY: The Department of the Affected Public: Farms, individuals or Requests for additional information or Treasury, as part of its continuing effort households, and business or other for- copies of the form(s) and instructions to reduce paperwork and respondent profit organizations. should be directed to Martha R. Brinson, burden, invites the general public and Estimated Number of Respondents: (202) 622–3869, Internal Revenue other Federal agencies to take this 2,000. Service, room 5571, 1111 Constitution opportunity to comment on proposed Estimated Time Per Respondent: 2 Avenue NW., Washington, DC 20224. and/or continuing information hours. SUPPLEMENTARY INFORMATION: collections, as required by the Estimated Total Annual Burden Title: U.S. Information Return—Trust Paperwork Reduction Act of 1995, Hours: 4,000 hours. Accumulation of Charitable Amounts Public Law 104–13 (44 U.S.C. REQUEST FOR COMMENTS: Comments OMB Number: 1545–0094 3506(c)(2)(A)). Currently, the IRS is submitted in response to this notice will Form Number: Form 1041–A soliciting comments concerning Form be summarized and/or included in the Abstract: Form 1041–A is used to 4563, Exclusion of Income for Bona Fide request for OMB approval. All report the information required in Residents of American Samoa. comments will become a matter of Internal Revenue Code section 6034 DATES: Written comments should be public record. Comments are invited on: concerning accumulation and received on or before July 8, 1996 to be (a) Whether the collection of distribution of charitable amounts. The assured of consideration. data is used to verify that amounts for information is necessary for the proper ADDRESSES: Direct all written comments performance of the functions of the which a charitable deduction was to Garrick R. Shear, Internal Revenue agency, including whether the allowed are used for charitable Service, room 5571, 1111 Constitution information shall have practical utility; purposes. Avenue NW., Washington, DC 20224. (b) the accuracy of the agency’s estimate Current Actions: There are no changes being made to the form at this time. FOR FURTHER INFORMATION CONTACT: of the burden of the collection of Requests for additional information or information; (c) ways to enhance the Type of Review: Extension of a currently approved collection. copies of the form(s) and instructions quality, utility, and clarity of the should be directed to Martha R. Brinson, information to be collected; and (d) Affected Public: Business or other for- profit organizations and individuals or (202) 622–3869, Internal Revenue ways to minimize the burden of the Service, room 5571, 1111 Constitution collection of information on households. Estimated Number of Respondents: Avenue NW., Washington, DC 20224. respondents, including through the use SUPPLEMENTARY INFORMATION: of automated collection techniques or 18,000 Estimated Time per Respondent: 37 hr Title: Exclusion of Income for Bona other forms of information technology. 21 min. Fide Residents of American Samoa. Approved: April 29, 1996. Estimated Total Annual Burden OMB Number: 1545–0173. Garrick R. Shear, Hours: 672,300 Form Number: Form 4563. IRS Reports Clearance Officer. REQUEST FOR COMMENTS: Comments Abstract: This form is used by bona [FR Doc. 96–11348 Filed 5–6–96; 8:45 am] submitted in response to this notice will fide residents of American Samoa to exclude income from sources within BILLING CODE 4830±01±U be summarized and/or included in the request for OMB approval. All American Samoa, Guam, and the comments will become a matter of Commonwealth of the Northern Mariana Proposed Collection; Comment public record. Comments are invited on: Islands to the extent specified in Request for Form 1041±A (a) Whether the collection of Internal Revenue Code section 931. This information is necessary for the proper information is used by the Service to AGENCY: Internal Revenue Service (IRS), performance of the functions of the determine if an individual is eligible to Treasury. agency, including whether the exclude possession source income. ACTION: Notice and request for information shall have practical utility; Current Actions: There are no changes comments. (b) the accuracy of the agency’s estimate being made to the form at this time. of the burden of the collection of Type of Review: Extension of a SUMMARY: The Department of the information; (c) ways to enhance the currently approved collection. Treasury, as part of its continuing effort quality, utility, and clarity of the Affected Public: Individuals or to reduce paperwork and respondent information to be collected; and (d) households. burden, invites the general public and ways to minimize the burden of the Estimated Number of Respondents: other Federal agencies to take this collection of information on 100. Estimated Time per Respondent: 1 hr. opportunity to comment on proposed respondents, including through the use 21 min. and/or continuing information of automated collection techniques or Estimated Total Annual Burden collections, as required by the other forms of information technology. Paperwork Reduction Act of 1995, Hours: 135. Approved: April 25, 1996. Public Law 104–13 (44 U.S.C. REQUEST FOR COMMENTS: Comments 3506(c)(2)(A)). Currently, the IRS is Garrick R. Shear, submitted in response to this notice will soliciting comments concerning Form IRS Reports Clearance Officer. be summarized and/or included in the 1041–A, U.S. Information Return—Trust [FR Doc. 96–11349 Filed 5–6–96; 8:45 am] request for OMB approval. All Accumulation of Charitable Amounts. BILLING CODE 4830±01±U comments will become a matter of 20554 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Notices public record. Comments are invited on: Abstract: Form 8848 is used by (a) Public Law 104–13 (44 U.S.C. (a) Whether the collection of foreign corporations that have 3506(c)(2)(A)). Currently, the IRS is information is necessary for the proper completely terminated all of their U.S. soliciting comments concerning Form performance of the functions of the trade or business within the meaning of 8842, Election To Use Different agency, including whether the Regulations section 1.884–2T(a) during Annualization Periods for Corporate information shall have practical utility; the tax year or (b) domestic corporations Estimated Tax. (b) the accuracy of the agency’s estimate to whom a foreign corporation has DATES: Written comments should be of the burden of the collection of transferred its U.S. assets in a received on or before July 8, 1996 to be information; (c) ways to enhance the transaction described in Internal assured of consideration. quality, utility, and clarity of the Revenue Code section 381(a), if the ADDRESSES: Direct all written comments information to be collected; and (d) foreign corporation was engaged in a to Garrick R. Shear, Internal Revenue ways to minimize the burden of the U.S. trade or business at that time. Service, room 5571, 1111 Constitution Current Actions: There are no changes collection of information on Avenue NW., Washington, DC 20224. respondents, including through the use being made to the form at this time. of automated collection techniques or Type of Review: Extension of a FOR FURTHER INFORMATION CONTACT: other forms of information technology. currently approved collection. Requests for additional information or Affected Public: Business or other for- copies of the form(s) and instructions Approved: April 29, 1996. profit organizations. should be directed to Martha R. Brinson, Garrick R. Shear, Estimated Number of Respondents: (202) 622–3869, Internal Revenue IRS Reports Clearance Officer. 5,000. Service, room 5571, 1111 Constitution [FR Doc. 96–11350 Filed 5–6–96; 8:45 am] Estimated Time per Respondent: 5hr. Avenue NW., Washington, DC 20224. BILLING CODE 4830±01±U 34 min. SUPPLEMENTARY INFORMATION: Estimated Total Annual Burden Title: Election To Use Different Hours: 27,800 Annualization Periods for Corporate REQUEST FOR COMMENTS: Comments Proposed Collection; Comment Estimated Tax. submitted in response to this notice will Request for Form 8848 OMB Number: 1545–1409. be summarized and/or included in the Form Number: Form 8842. AGENCY: Internal Revenue Service (IRS), request for OMB approval. All Abstract: Form 8842 is a form used by Treasury. comments will become a matter of corporations, tax- exempt organizations ACTION: Notice and request for public record. Comments are invited on: subject to the unrelated business income comments. (a) Whether the collection of tax, and private foundations to annually information is necessary for the proper SUMMARY: The Department of the elect the use of an annualization period performance of the functions of the Treasury, as part of its continuing effort under Internal Revenue Code section agency, including whether the to reduce paperwork and respondent 6655(e)(2)(C) (i) or (ii) for purposes of information shall have practical utility; burden, invites the general public and figuring the corporation’s estimated tax (b) the accuracy of the agency’s estimate other Federal agencies to take this payments under the annualized income of the burden of the collection of opportunity to comment on proposed installment method. information; (c) ways to enhance the and/or continuing information Current Actions: There are no changes quality, utility, and clarity of the collections, as required by the being made to the form at this time. information to be collected; and (d) Paperwork Reduction Act of 1995, Type of Review: Extension of a ways to minimize the burden of the Public Law 104–13 (44 U.S.C. currently approved collection. collection of information on 3506(c)(2)(A)). Currently, the IRS is Affected Public: Business or other for- respondents, including through the use soliciting comments concerning Form profit organizations. of automated collection techniques or 8848, Consent To Extend the Time To Estimated Number of Respondents: other forms of information technology. Assess the Branch Profits Tax Under 2,000. Regulations Sections 1.884–2T (a) and Approved: April 30, 1996. Estimated Time per Respondent: 2hr. (c). Garrick R. Shear, 21 min. DATES: Written comments should be IRS Reports Clearance Officer. Estimated Total Annual Burden received on or before July 8, 1996 to be [FR Doc. 96–11377 Filed 5–6–96; 8:45 am] Hours: 4,700. assured of consideration. BILLING CODE 4830±01±U REQUEST FOR COMMENTS: Comments ADDRESSES: Direct all written comments submitted in response to this notice will to Garrick R. Shear, Internal Revenue be summarized and/or included in the Service, room 5571, 1111 Constitution Proposed Collection; Comment request for OMB approval. All Avenue NW., Washington, DC 20224. Request for Form 8842 comments will become a matter of FOR FURTHER INFORMATION CONTACT: AGENCY: Internal Revenue Service (IRS), public record. Comments are invited on: Requests for additional information or Treasury. (a) Whether the collection of copies of the form(s) and instructions ACTION: Notice and request for information is necessary for the proper should be directed to Martha R. Brinson, comments. performance of the functions of the (202) 622–3869, Internal Revenue agency, including whether the Service, room 5571, 1111 Constitution SUMMARY: The Department of the information shall have practical utility; Avenue NW., Washington, DC 20224. Treasury, as part of its continuing effort (b) the accuracy of the agency’s estimate SUPPLEMENTARY INFORMATION: to reduce paperwork and respondent of the burden of the collection of Title: Consent To Extend the Time To burden, invites the general public and information; (c) ways to enhance the Assess the Branch Profits Tax Under other Federal agencies to take this quality, utility, and clarity of the Regulations Sections 1.884–2T (a) and opportunity to comment on proposed information to be collected; and (d) (c). and/or continuing information ways to minimize the burden of the OMB Number: 1545–1407. collections, as required by the collection of information on Form Number: Form 8848. Paperwork Reduction Act of 1995, respondents, including through the use Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Notices 20555 of automated collection techniques or Notice of this determination is ordered During these executive sessions, other forms of information technology. to be published in the Federal Register. discussions and recommendations will Approved: April 30, 1996. Dated: May 2, 1996. deal with medical records of specific Garrick R. Shear, Les Jin, patients and individually identifiable patient medical histories. The IRS Reports Clearance Officer. General Counsel. disclosure of this information is clearly [FR Doc. 96–11378 Filed 5–6–96; 8:45 am] [FR Doc. 96–11416 Filed 5–2–96; 4:38 pm] BILLING CODE 8230±01±M an unwarranted invasion of personal BILLING CODE 4830±01±U privacy. Closure of this portion of the meeting is in accordance with subsection 10(d) of P.L. 92–463, as UNITED STATES INFORMATION DEPARTMENT OF VETERANS AFFAIRS amended by P.L. 94–409, and as cited in AGENCY 5 U.S.C. 552b(c)(6). Culturally Significant Objects Imported Persian Gulf Expert Scientific The agenda for June 3 will begin with for Exhibition; Determination Committee; Notice of Meeting an update on recent events, followed by The Department of Veterans Affairs responses from Committee members. Notice is hereby given of the The first day’s agenda will also cover following determination: Pursuant to (VA), in accordance with P.L. 92–463, gives notice that a meeting of the VA reports on activities of the Persian Gulf the authority vested in me by the Act of Spouses and Children Exam and the October 19, 1965 (79 Stat. 985, 22 U.S.C. Persian Gulf Expert Scientific Committee will be held on: Directions for Research and 2459), Executive Order 12047 of March Development in Veterans Affairs, as 27, 1978 (43 F.R. 13359, March 29, Monday, June 3, 1996, at 9:00 a.m.–5:00 p.m. well as feedback from the Presidential 1978), and Delegation Order No. 85–5 of Tuesday, June 4, 1996, at 9:00 a.m.–12:01 Advisory Committee on Gulf War p.m. June 27, 1985 (50 FR 27393, July 2, Veterans’ Illnesses Interim Report. 1985), I hereby determine that the The location of the meeting will be On June 4 the Committee will hear objects to be included in the exhibit, 810 Vermont Avenue, NW., updates from the Persian Gulf Veterans’ ‘‘Africa: The Art of a Continent’’ (See Washington, D.C., Room 230. list1), imported from abroad for the The Committee’s objectives are to Illnesses Investigative Team as well as temporary exhibition without profit advise the Under Secretary for Health activities from England’s Persian Gulf within the United States, are of cultural about medical findings affecting Persian Studies. significance. These objects are imported Gulf era veterans. Additional information concerning pursuant to a loan agreement with the At this meeting the Committee will these meetings may be obtained from foreign lenders. I also determine that the review all aspects of patient care and the Executive Secretary, Office of Public exhibition or display of the listed medical diagnoses and will provide Health & Environmental Hazards, 810 exhibit objects at the Solomon R. professional consultation as needed. Vermont Avenue NW., Washington, Guggenheim Museum from on or about The Committee may advise on other D.C. 20420. June 4, 1996, through September 29, areas involving research and Dated: April 22, 1996. 1996, is in the national interest. Public development, veterans benefits and/or By Direction of the Secretary. training aspects for patients and staff. 1 A copy of this list may be obtained by All portions of the meeting will be Heyward Bannister, contacting Ms. Neila Sheahan, Assistant General Committee Management Officer. Counsel, at 202/619–5030, and the address is Room open to the public except from 4:00 p.m. 700, U.S. Information Agency, 301 4th Street SW., until 5:00 p.m. on June 3 and from 11:00 [FR Doc. 96–11274 Filed 5–6–95; 8:45 am] Washington, D.C. 20547–0001. a.m. to 12:00 noon on June 4, 1996. BILLING CODE 8320±01±M 20556

Corrections Federal Register Vol. 61, No. 89

Tuesday, May 7, 1996

This section of the FEDERAL REGISTER vessels.’’ should read ‘‘§ 116.330 Sailing § 120.330 [Corrected] contains editorial corrections of previously vessels.’’ 17. On page 929, in the third column, published Presidential, Rule, Proposed Rule, in §120.330, the second ‘‘(g)’’ should and Notice documents. These corrections are § 116.415 [Corrected] read ‘‘(h)’’. prepared by the Office of the Federal 4. On page 903, in §116.415(b), in the Register. Agency prepared corrections are table, in column 12, ‘‘1C’’ and ‘‘2C’’ § 120.340 [Corrected] issued as signed documents and appear in 1 ′ 2 ′ the appropriate document categories should read ‘‘ C ’’ and ‘‘ C ’’, 18. On page 931, in the first column, elsewhere in the issue. respectively. in §120.340(p), in the eighth line, 5. On the same page, in §116.415(c), ‘‘=10.75 ohms/mil-foot (english)’’ in the table, in columns 4 and 12, ‘‘C1’’ should not have appeared. should read ‘‘1C′’’. FEDERAL COMMUNICATIONS 6. On the same page, in the same § 120.380 [Corrected] COMMISSION table, in column 13, in the 12th entry, 19. On page 932, in the first column, [Report No. 2128] ‘‘A–0’’ should read ‘‘1A–0’’. in §120.380(h)(2), in the fifth line, ‘‘responsible’’ should read Petitions for Reconsideration, § 116.438 [Corrected] ‘‘responsive’’. Clarification and Stay of Actions in 7. On page 907, in the first column, Rulemaking Proceedings in §116.438(m)(3), in the last line, ‘‘of’’ § 121.704 [Corrected] should read ‘‘if’’. 20. On page 935, in the third column, Correction in §121.704, in the last line, ‘‘3 CFR Part In notice document 96–9746 § 116.500 [Corrected] 159’’ should read ‘‘33 CFR Part 159’’. appearing on page 19295, in the issue of 8. On page 908, in the second column, Wednesday, May 1, 1996, make the in §116.500(o)(2), ‘‘designated’’ should § 122.604 [Corrected] following correction: read ‘‘designed’’. 21. On page 942, in the first column, On page 19295, in the 1st column, in in §122.604(h), in the seventh line, the 13th line, ‘‘May 7, 1996.’’ should § 117.64 [Corrected] ‘‘March 11, 1995’’ should read ‘‘March read ‘‘May 16, 1996.’’. 9. On page 912, in the second column, 11, 1996’’. BILLING CODE 1505±01±D in §117.64, in the second line, 22. On the same page, in the same ‘‘operators’’ should read ‘‘operates’’. column, in §122.604(i), in the first line, insert ‘‘and’’ after ‘‘boat’’. § 118.300 [Corrected] DEPARTMENT OF TRANSPORTATION 10. On page 917, in the third column, § 122.702 [Corrected] Coast Guard in §118.300(e), in the first line, ‘‘most’’ 23. On the same page, in the third should read ‘‘must’’. column, in §122.702(a), in the second 46 CFR Parts 114, 116, 117, 118, 119, line, ‘‘inboard’’ should read ‘‘onboard’’. 120, 121, 122, 170, 173, 175, 176, 177, § 118.410 [Corrected] 178, 179, 180, 181, 182, 183, 185 11. On page 919, in the second § 122.704 [Corrected] [CGD 85±080] column, in §118.410(d), the second 24. On the same page, in the third RIN 2115±AC 22 ‘‘(1)’’ should read ‘‘(4)’’. column, in §122.704(a), in the first line, ‘‘fail’’ should read ‘‘fall’’. § 119.115 [Corrected] Small Passenger Vessel Inspection and Certification 12. On page 922, in the second § 122.900 [Corrected] column, in §119.115(b), in the second 25. On page 943, in the third column, Correction line from the bottom, ‘‘no’’ should read in §122.900, in the second line, insert In rule document 96–213 beginning ‘‘not’’. ‘‘will subject’’ after ‘‘subchapter’’. on page 864 in the issue of Wednesday, § 119.445 [Corrected] § 170.170 [Corrected] January 10, 1996, make the following corrections: 13. On page 925, in the third column, 26. On page 944, in the first column, in §119.445(d), in the first line, ‘‘Full’’ in §170.170(a), in the second line, § 114.400 [Corrected] should read ‘‘Fill’’. ‘‘T=cither:’’ should read ‘‘T=either:’’. 1. On page 887, in the third column, § 119.455 [Corrected] in §114.400(b), in the definition High §§ 173.059, 173.060, 173.061, 173.062 [Corrected] Speed Craft, in the last line, the 14. On page 926, in the second equation should read: column, in §119.455(a)(1)(ii), in the last 27. On page 946, in the second ‘‘V=3.7×Displ.1667’’. line, ‘‘lest’’ should read ‘‘least’’. column, in the table, in column 2, the 2. On page 888, in the first column, 15. On the same page, in the same second entry should read ‘‘Or §179.360 in the same section, in the definition column, in §119.455(b)(3), in the 11th in subchapter T of this chapter.’’. Length, in the second line, ‘‘sprints’’ line, ‘‘dock’’ should read ‘‘deck’’. SUBCHAPTER TÐ[CORRECTED] should read ‘‘sprits’’. § 119.530 [Corrected] 28. On the same page, in the third § 116.300 [Corrected] 16. On page 927, in the second column, in the table of contents for 3. On page 901, in the third column, column, in §119.530(a), in the second Subchapter T, in the third line from the the section heading ‘‘§ 116.300 Sailing line, ‘‘alarms’’ should read ‘‘alarm’’. bottom, ‘‘Electrical’’ was misspelled. Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Corrections 20557

§ 175.110 [Corrected] § 176.400 [Corrected] line, ‘‘§160.010’’ should read 29. On page 947, in §175.110(d), in 42. On the same page, in the same ‘‘§161.010’’. the table heading, ‘‘Subchapter K1’’ column, the section heading ‘‘§176.000 § 180.130 [Corrected] should read ‘‘Subchapter 1K′’’. General.’’ should read ‘‘§176.400 General.’’ 56. On page 978, in the second § 175.400 [Corrected] column, in §180.137(e), in the first line, 30. On page 948, in the first column, § 176.404 [Corrected] ‘‘carried’’ should read ‘‘carries’’. in §175.400, in the definition Cargo 43. On page 957, in the first column, § 180.204 [Corrected] space, in the second line, remove ‘‘(1) in §176.404, in the fifth line from the 57. On page 980, in the second Cargo space means a:’’. bottom, ‘‘conducting’’ should read column, the section heading ‘‘§180.304 31. On the same page, in the same ‘‘conducted’’. Survival craft—vessels operating on column, in §175.400, in the definition coastwise routes.’’ should read Consideration, in the third line, § 176.802 [Corrected] ‘‘§180.204 Survival craft—vessels ‘‘according’’ should read ‘‘accruing’’; 44. On page 959, in the first column, operating on coastwise routes.’’ and beginning with the fourth line, in §176.802(c), the last line should read remove ‘‘but not including a pecuniary ‘‘hull can be observed.’’ § 181.320 [Corrected] payment accruing to an individual, § 176.810 [Corrected] 58. On page 983, in the first column, person, or entity,’’. 45. On page 960, in §176.810(b)(2), in in §181.320(c)(3), in the fourth through 32. On the same page, in the second the sixth lines, ‘‘and an outer cover of column, in §175.400, the definition the table heading, ‘‘1786.810(b)’’ should read ‘‘176.810(b)’’. rubber tube, plies of braided fabric ‘‘Dripproof’’ was misspelled. reinforcement, ’’ should be removed. 33. On page 949, in the first column, § 176.920 [Corrected] 59. On page 984, in the first column, in §175.400, in the definition High 46. On page 961, in the first column, in §181.410(b)(2), in the last line, ‘‘tow’’ Speed Craft, in the second paragraph, in the section heading ‘‘§176.970 should read ‘‘two’’. the second line, the equation should Exemptions.’’ should read ‘‘§176.920 × .1667 § 182.320 [Corrected] read: ‘‘V=3.7 Displ ’’. Exemptions.’’ 34. On the same page, in the same 60. On page 987, in the third column, column, in the definition Lakes, bays, § 177.1010 [Corrected] in §182.320(a), in the second line, ‘‘53’’ and sounds, in the third line, ‘‘lack’’ 47. On page 966, in the second should read ‘‘52’’. should read ‘‘lake’’. column, in §177.1010, in the first line, § 182.425 [Corrected] § 176.100 [Corrected] ‘‘Class’’ should read ‘‘Glass’’. 61. On page 989, in the first column, 35. On page 954, in the first column, § 178.320 [Corrected] in §182.425(b)(6), in the second line, in §176.100(b), in the fifth line, 48. On page 967, in the third column, ‘‘new’’ should read ‘‘raw’’. ‘‘abroad’’ should read ‘‘aboard’’. in §178.320(d), in the last line, § 182.430 [Corrected] § 176.105 [Corrected] ‘‘leading’’ should read ‘‘loading’’. 62. On the same page, in the third 36. On the same page, in the second § 178.330 [Corrected] column, in §182.430, in the last paragraph, ‘‘(1)’’ should read ‘‘(l)’’. column, in §176.105(d), in the first line, 49. On page 968, in the third column, ‘‘Certification’’ should read in §178.330(d)(3)(i), the second line § 182.520 [Corrected] ‘‘Certificate’’. ′ should read: ‘‘i=f(2L–1.5L )/4L’’. 63. On page 995, in the second 37. On the same page, in the same 50. On the same page, in the same column, in §182.520(j)(1), in the first column, in §176.105(e), in the fourth column, in §178.330(d)(3)(ii), the third line, ‘‘On’’ should read ‘‘One’’. line, ‘‘Certification’’ should read line should read: ‘‘i=f(2L–L′)/4L’’. ‘‘Certificate’’. 51. On the same page, in the same PART 183Ð[CORRECTED] § 176.107 [Corrected] column, in §178.330(d)(3)(ii), in the 64. On page 997, in the second 10th line, ‘‘L1’’ should read ‘‘L′’’. column, under the heading Subpart A, 38. On the same page, in the same ‘‘183.000’’ should read ‘‘183.100’’. column, in §176.107(a) and (b), in the § 178.450 [Corrected] first lines, ‘‘Certification’’ should read 52. On page 971, in the first column, § 183.130 [Corrected] ‘‘Certificate’’. in §178.450(a), under Recess Ration=LR/ 65. On the same page, in the third column, in §183.130(a), in the second § 176.110 [Corrected] LC, insert ‘‘LC=2/3 vesel length (LOD).’’ under ‘‘LR=the length of the recess in line, ‘‘or’’ should read ‘‘of’’. 39. On the same page, in the same the after 2/3 vessel length (LOD).’’ column, in §176.110(a) and (b), in the § 183.330 [Corrected] fifth and fourth lines respectively and § 179.220 [Corrected] 66. On page 1000, in the first column, the second line of the third column, 53. On page 972, in the third column, in §183.330(p), the seventh line should ‘‘Certification of Inspection’’ should in §179.220(a), in NOTE 1 appearing read: ‘‘=10.75 ohm/mil-foot (english)’’. read ‘‘Cerfiticate of Inspection’’. after the table, in the second line, § 183.350 [Corrected] ‘‘mid0point’’ should read ‘‘midpoint’’. § 176.310 [Corrected] 67. On the same page, in the same 40. On page 956, in the second § 180.68 [Corrected] column, in §183.350(d), in the third column, in §176.310(a), in the first line, 54. On page 976, in the third column, line, ‘‘slips’’ should read ‘‘clips’’. ‘‘Certificate’’ should read in §180.68(c)(1), in the seventh line, § 185.506 [Corrected] ‘‘Certification’’. insert ‘‘or (b)’’ after ‘‘(a)’’. 41. On the same page, in the same 68. On page 1008, in the second column, in §176.310(b), in the fourth § 180.70 [Corrected] column, in §185.506(b)(1), insert line, ‘‘Certificate’’ should read 55. On page 977, in the second ‘‘through’’ in lieu of the first ‘‘and’’. ‘‘Certification’’. column, in §180.70(d)(1), in the second BILLING CODE 1505±01±D federal register May 7,1996 Tuesday Type AProcedures;FinalRule Natural ResourceDamageAssessments: 43 CFRPart11 Office oftheSecretary Interior Department ofthe Part II 20559 20560 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

DEPARTMENT OF THE INTERIOR D. Post-Assessment Phase recover the reasonable costs of assessing III. Nature of Type A Procedures natural resource damages. Natural Office of the Secretary IV. Workings of the NRDAM/CME and resource damages are distinct from NRDAM/GLE response costs. Response costs are the 43 CFR Part 11 A. Overview B. Data Inputs and Modifications costs of actions taken under the C. Geographic Information System National Contingency Plan (40 CFR part RIN 1090±AA21 & 1090±AA23 D. Submodels 300) to remove threats to human health V. Use of the NRDAM/CME and NRDAM/ and the environment caused by Natural Resource Damage GLE in Other Contexts hazardous substance releases. Today’s AssessmentsÐType A Procedures VI. Summary of Major Changes from the final rule addresses only the assessment Proposed Rules AGENCY: Department of the Interior. of natural resource damages and is not A. Rule Language intended for use in connection with ACTION: Final rule. B. NRDAM/CME and NRDAM/GLE VII. Response to Comments response-related activities, such as SUMMARY: This final rule amends the A. General Comments setting cleanup priorities. regulations for assessing natural B. Technical Documents CERCLA requires the President to resource damages under the C. Selection of Assessment Procedures promulgate regulations for the Comprehensive Environmental D. User-Supplied Information assessment of natural resource damages Response, Compensation, and Liability E. Physical Fates resulting from hazardous substance F. Species Distribution and Abundance releases. CERCLA sec. 301(c). The Act. Federal, State, and Indian tribe G. Toxicity and Mortality natural resource trustees may use these President delegated the responsibility H. Loss of Production for promulgating these regulations to the regulations to obtain compensation from I. Catch and Bag Losses potentially responsible parties for J. Habitat Restoration Department. E.O. 12316, as amended by natural resource injuries resulting from K. Assimilative Capacity Restoration E.O. 12580. The regulations must hazardous substance releases. Trustees L. Restocking identify the ‘‘best available’’ procedures obtain a rebuttable presumption in M. Consideration of Costs and Benefits of for assessing natural resource damages. Active Restoration litigation for damages, up to $100,000, CERCLA sec. 301(c)(2). CERCLA N. Damages for Fishing and Hunting Losses requires that the natural resource calculated in accordance with this rule. O. Damages for Lost Wildlife Viewing The rule does not change the overall damage assessment regulations include P. Damages for Beach and Boating Closures two types of assessment procedures. administrative process for conducting Q. Judicial Review and the Rebuttable ‘‘Type A’’ procedures are ‘‘standard assessments but simply revises an Presumption procedures for simplified assessments existing ‘‘type A’’ procedure for I. Background requiring minimal field observation.’’ assessing natural resource damages in CERCLA sec. 301(c)(2)(A). ‘‘Type B’’ coastal and marine environments and A. Statutory Provisions procedures are ‘‘alternative protocols for establishes a new type A procedure for The Department of the Interior (the conducting assessments in individual the Great Lakes. Department) is amending the cases.’’ CERCLA sec. 301(c)(2)(B). EFFECTIVE DATE: The effective date of regulations for assessing natural Federal and State trustees who perform this final rule is June 6, 1996. The resource damages under the assessments in accordance with these incorporation by reference of certain Comprehensive Environmental regulations receive a rebuttable documents listed in this rule was Response, Compensation, and Liability presumption in court. CERCLA sec. approved by the Director of the Federal Act, as amended (42 U.S.C. 9601 et seq.) 107(f)(2)(C). The Department must Register and is effective June 6, 1996. (CERCLA). CERCLA provides that review the regulations, and revise them FOR FURTHER INFORMATION CONTACT: certain categories of persons, known as as appropriate, every two years. Mary Morton at (202) 208–3302 (for potentially responsible parties (PRPs), CERCLA sec. 301(c)(3). questions about the rule language) or are liable for natural resource damages B. History of this Rulemaking David Rosenberger at (202) 208–3811 resulting from a release of a hazardous (for questions about the computer substance. CERCLA sec. 107(a). Natural On March 20, 1987, the Department models). Interested parties may obtain resource damages are monetary published a final rule establishing a copies of the computer models and compensation for injury to, destruction type A procedure for coastal and marine supporting documentation free of charge of, or loss of natural resources. CERCLA environments that incorporated a from the Department through July 31, sec. 107(a)(4)(C). computer model, known as the Natural 1996, and thereafter for a fee from the Only those Federal, State, and Indian Resource Damage Assessment Model for National Technical Information Service, tribe officials designated as natural Coastal and Marine Environments 5285 Port Royal Road, Springfield, VA resource trustees may recover natural (NRDAM/CME). 52 FR 9041. The 22161, ph: (703) 487–4650. The models resource damages. CERCLA defines Department indicated that it would are also on the Internet at http:// ‘‘State’’ to include: consider developing additional type A www.usgs.gov/doi/oepc/ The District of Columbia, the procedures as experience was gained oepchome.html. Commonwealth of Puerto Rico, Guam, with the type A procedure for coastal and marine environments. Id. at 9057. SUPPLEMENTARY INFORMATION: This American Samoa, the United States Virgin Islands, the Commonwealth of the Northern On June 2, 1988, the Department preamble is organized as follows: Marianas, and any other territory or published an advance notice of I. Background possession over which the United States has proposed rulemaking soliciting A. Statutory Provisions jurisdiction. CERCLA sec. 101(27). comment on the development of a type B. History of this Rulemaking Trustees must use all sums they A procedure for Great Lakes C. Oil Pollution Act Regulations II. Relationship of Today’s Final Rule to the recover in compensation for natural environments that would incorporate a Existing Regulations resource injuries to restore, rehabilitate, computer model called the Natural A. Preassessment Phase replace, or acquire the equivalent of the Resource Damage Assessment Model for B. Assessment Plan Phase injured natural resources. CERCLA sec. Great Lakes Environments (NRDAM/ C. Assessment Phase 107(f)(1). Trustee officials may also GLE). 53 FR 20143. A few months later, Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20561 the Department published an advance development of the type A procedure NOAA published a final OPA rule on notice of proposed rulemaking for Great Lakes environments to January 5, 1996. 61 FR 439. announcing the commencement of the conform with Ohio v. Interior and The Department began developing the statutorily required biennial review of Colorado v. Interior. 54 FR 39015 (Sept. type A procedures before the enactment the type A procedure for coastal and 22, 1989). of OPA and, thus, originally included marine environments. 54 FR 5093 (Feb. The Department published a notice of both hazardous substances and oil in 1, 1989). proposed rulemaking for the type A the NRDAM/CME and NRDAM/GLE On July 14, 1989, the U.S. Court of procedure for Great Lakes environments algorithms and databases. The Appeals for the District of Columbia on August 8, 1994. 59 FR 40319. The Department has worked closely with Circuit issued two decisions that August 8, 1994, Federal Register notice NOAA during the development of the affected these two pending type A also contained two proposed type A procedures. During its rulemakings. The Department had amendments to the natural resource rulemaking, NOAA indicated it would issued type B procedures on August 1, damage assessment regulations that allow use of the Department’s type A 1986. 51 FR 27674. State, industry, and would affect all type A procedures. The procedures under the OPA regulations. environmental group petitioners Department proposed to revise the See 59 FR 1062, 1124–25 (Jan. 7, 1994); challenged those procedures in State of conditions under which both type A and 60 FR 39803, 39831 (Aug. 3, 1995). Ohio v. United States Department of the and type B procedures could be used in NOAA’s final rule states that trustees Interior (Ohio v. Interior), 880 F.2d 432 the same assessment, and to make may use ‘‘[m]odel-based procedures, (D.C. Cir. 1989). The court in Ohio v. explicit the scope of judicial review of including type A procedures identified Interior upheld various aspects of the assessments performed using type A in 43 CFR part 11, subpart D,’’ provided type B procedures but ordered the procedures. The Department later that any such procedure meets the Department to revise the type B extended the comment period on the following conditions: procedures to reflect the statutory August 8, 1994, proposed rule through (1) The procedure must be capable of preference for using restoration costs as February 6, 1995. 59 FR 54877 (Nov. 2, providing assessment information of use in the measure of natural resource 1994). determining the type and scale of restoration damages. The court used the term On December 8, 1994, the Department appropriate for a particular injury; ‘‘restoration costs’’ to encompass the (2) The additional cost of a more complex issued a notice of proposed rulemaking cost of restoring, rehabilitating, procedure must be reasonably related to the for the modified type A procedure for replacing, and/or acquiring the expected increase in the quantity and/or equivalent of the injured natural coastal and marine environments. 59 FR quality of relevant information provided by resources. The court also ordered the 63300. On February 7, 1995, the the more complex procedure; and Department to revise the type B Department extended the comment (3) The procedure must be reliable and periods on both the proposed Great valid for the particular incident. 61 FR at 503 procedures to allow for the recovery of (15 CFR 990.27). all reliably calculated values lost to the Lakes type A rule and the proposed public as a result of the injury to natural coastal and marine type A rule through Therefore, the Department has resources. July 6, 1995. 60 FR 7155 and 7156. The retained components relating to oil in State, industry, and environmental Department noted that, in light of the the final versions of the NRDAM/CME group petitioners also challenged the similarities between the two proposed and NRDAM/GLE, while recognizing original type A procedure for coastal rules, it would consider the public that these components are without any and marine environments in State of comments on the two rules direct regulatory effect. The Department Colorado v. United States Department of concurrently. Id. at 7156 and 7157. is also providing responses to comments the Interior (Colorado v. Interior), 880 Today’s final rule covers both the type it received on the oil-related F.2d 481 (D.C. Cir. 1989). The court in A procedure for coastal and marine components of the type A models. Colorado v. Interior upheld the environments and the type A procedure However, the Department wishes to Department’s sequential approach to for Great Lakes environments. emphasize that its regulations do not developing type A procedures but urged C. Oil Pollution Act Regulations govern the assessment of natural the Department to develop additional resource damages for oil discharges type A procedures to address as many Originally, trustees could use the under OPA. Trustees who wish to use different cases as possible. The court Department’s regulations to assess the type A procedures and obtain a also remanded the type A procedure for natural resource damages resulting from rebuttable presumption for assessments coastal and marine environments, based either a hazardous substance release of oil discharges must follow the on the reasoning in the Ohio v. Interior under CERCLA or an oil or hazardous process established by NOAA’s decision, to permit the Department to substance discharge into navigable regulations. allow for the calculation of restoration waters under the Clean Water Act (33 Further, some of the language in the costs. The original type A procedure for U.S.C. 1251 et seq.). However, the Oil CERCLA rule varies from that in the coastal and marine environments Pollution Act of 1990 (OPA) amended OPA rule. For example, today’s final calculated damages based solely on the natural resource damage provisions rule incorporates the existing definition certain lost public uses of the injured of the Clean Water Act. See 33 U.S.C. of ‘‘reasonable cost’’ at 43 CFR 11.14, resources. 1321, 2702(b)(2), and 2706(a). OPA from which the definition in the OPA On September 22, 1989, the authorized the National Oceanic and rule differs. See 61 FR at 504 (15 CFR Department published an advance Atmospheric Administration (NOAA) to 990.30). Section 11.35(b) of today’s final notice of proposed rulemaking stating develop new natural resource damage rule, which requires trustees to conduct that it would revise the type A assessment regulations for assessing type B procedures if the PRPs advance procedure for coastal and marine natural resource damages resulting from the reasonable costs of using such environments in compliance with Ohio discharges, or threats of discharges, of procedures, differs from the OPA rule v. Interior and Colorado v. Interior oil into navigable waters that, once conditions governing PRP requests for during the ongoing biennial review. 54 final, would supersede the provisions of alternative assessment procedures. See FR 39013. The Department also the Department’s regulations addressing 61 FR at 501 (15 CFR 990.14(b)(6)). announced that it would modify the oil. 33 U.S.C 2706(e)(1) and 2751(b). Also, § 11.44(f) of today’s final rule 20562 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations provides that if the models calculate For more information on the appropriate, whenever a PRP submits a damages in excess of $100,000, then Preassessment Phase, see subpart B of written request and justification for use trustees who wish to obtain a rebuttable 43 CFR part 11. of type B procedures and advances all presumption must either: (1) limit the reasonable costs of using type B B. Assessment Plan Phase portion of their claim calculated with procedures within a time frame the type A procedure to $100,000; or (2) If trustees determine that additional acceptable to the trustees. compute all damages using type B assessment work is warranted, they For more information on the procedures. The OPA rule, on the other begin the Assessment Plan Phase. The Assessment Plan Phase, see §§ 11.30 hand, contains no dollar cut-off for use Assessment Plan Phase includes the through 11.37 of today’s final rule and of specific procedures. Because use of preparation of a written Assessment subpart C of 43 CFR part 11. Plan describing the procedures trustees the type A procedures for oil discharges C. Assessment Phase is governed by the OPA rule, the intend to use to determine damages. The Department defers to NOAA on how trustees must make the draft Assessment During the Assessment Phase, trustees such differences are to be resolved when Plan available for public review and conduct the work described in the the NRDAM/CME and NRDAM/GLE are comment. Assessment Plan. The work consists of used for assessments of oil discharges. The regulations provide two types of three steps: Injury Determination; assessment procedures: type A and type Quantification; and Damage II. Relationship of Today’s Final Rule B. Type A procedures, such as those Determination. In Injury Determination, to the Existing Regulations contained in today’s final rule, are trustees determine whether any natural The existing regulations establish an simplified procedures requiring resources have been injured. If trustees administrative process for conducting minimal field observation. Type B determine that resources have been assessments. See 43 CFR part 11. The procedures involve more detailed field injured, they proceed to Quantification, administrative process covers all the studies. The Assessment Plan in which they quantify the resulting steps trustees need to follow if they documents whether trustees plan to use change in baseline conditions. wish to obtain a rebuttable presumption a type A procedure, type B procedures, ‘‘Baseline’’ conditions are the in litigation of their claim. However, or both. Today’s final rule revises the conditions that would have existed had trustees have the authority to settle their standards that trustees must follow the release not occurred. Finally, in damage claims at any time during the when selecting assessment procedures . Damage Determination, trustees administrative process and the Section 11.34 of today’s final rule calculate the monetary compensation to Department continues to encourage identifies several conditions that must be sought as damages for the natural trustees and PRPs to pursue settlement. be met before trustees can use a type A resource injuries. Damages include two Furthermore, trustees are not required to procedure and obtain a rebuttable components: (1) The cost of restoring, follow the regulations. If, however, presumption. If the conditions are not rehabilitating, replacing, and/or trustees and PRPs fail to reach a met, then trustees who elect to follow acquiring the equivalent of the injured settlement and the case is litigated, the regulations must use type B natural resources; and (2) the economic trustees will only obtain a rebuttable procedures to assess all damages. If the value lost by the public pending presumption if they performed their conditions are met, then trustees must recovery of the resources (compensable assessment in accordance with the decide whether to use a type A value). regulations. procedure, type B procedures, or both. When trustees use type B procedures, The same general administrative This decision is based on whether the they perform Injury Determination, process applies regardless of whether benefits of the increased accuracy Quantification, and Damage type A or type B procedures are used. provided by type B procedures would Determination through laboratory and The process has four phases: offset the anticipated additional cost of field studies. The regulations provide a Preassessment, Assessment Plan, using type B procedures, and whether range of alternative type B scientific and Assessment, and Post-Assessment. the anticipated damages would exceed economic methodologies for conducting During the Assessment Phase, trustees the anticipated cost of using type B such studies. For more information on use type A and/or type B procedures to procedures. use of type B procedures during the perform the technical work needed for Trustees may use both type A and Assessment Phase, see subpart E of 43 the actual determination of damages. type B procedures for the same release CFR part 11. Today’s final rule does not change if: (1) The type B procedures are cost- When trustees use a type A this overall administrative process. The effective and can be performed at a procedure, they perform Injury rule simply revises the type A reasonable cost; (2) the type B Determination, Quantification, and procedures available for use during the procedures are used only to determine Damage Determination through a Assessment Phase and modifies the damages for injuries or economic values computer model. Today’s type A standards for using both type A and of a type not addressed by the type A procedure for coastal and marine type B procedures for the same release. procedure; and (3) there is no double environments incorporates Version 2.4 recovery. Section 11.36 of the final rule of the NRDAM/CME. Today’s type A A. Preassessment Phase lists the categories of damages that are procedure for Great Lakes environments Today’s final rule does not affect the included in the type A models and for incorporates Version 1.4 of the NRDAM/ Preassessment Phase. The which trustees may not conduct GLE. Preassessment Phase consists of the supplemental type B studies. Trustees Trustees must supply a number of activities that precede the actual must document in the Assessment Plan data inputs to operate the NRDAM/CME assessment. For example, upon how they intend to prevent double and the NRDAM/GLE. The rule also detecting or receiving notification of a recovery when they use both type A and requires trustees to modify certain data release, trustees decide, based on a type B procedures. contained in the models if they have number of criteria, whether further Today’s final rule also maintains the more reliable information. Section 11.41 assessment actions are warranted. requirement that trustees use type B and Appendices II and III of the final Trustees document this decision in the procedures, even if they determine that rule describe the required data inputs Preassessment Screen Determination. use of a type A procedure would be and modifications. After trustees supply Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20563 the data inputs and modifications, the decide to continue using the type A other actions to restore, rehabilitate, models themselves perform the procedure, they must make any replace, and/or acquire the equivalent of remaining calculations necessary to necessary revisions to the user inputs, the injured resources. establish if there has been an injury, and perform a final application of the Also, existing 43 CFR 11.93(d), which quantify the extent of injury, select model. was not a subject of this rulemaking, appropriate restoration actions, and For more information on the provides that trustees may apply several value economic losses. With the Assessment Phase, see §§ 11.40 through type A recoveries to a single Restoration availability of these computer models, 11.44 of the final rule. For more Plan, so long as the Plan is intended to trustees will now be able to pursue information on how the NRDAM/CME address the same or similar injuries as compensation for cases in which the and the NRDAM/GLE perform Injury those identified in each application of cost of detailed type B studies is Determination, Quantification, and the type A procedure. prohibitive. Damage Determination, see Section IV For more information on the Post- Trustees may not implement type B of this preamble. Assessment Phase, see subpart F of 43 procedures until after the public review CFR part 11. D. Post-Assessment Phase period on the Assessment Plan. III. Nature of Type A Procedures However, today’s final rule provides Once the Assessment Phase is that trustees who use a type A completed, trustees enter the Post- The Department believes it is procedure must perform a preliminary Assessment Phase. Today’s final rule important that trustees, PRPs, and the application of the model before issuing does not substantively modify the Post- public clearly understand what the type the Assessment Plan and then include Assessment Phase. A procedures are, as well as what they the data inputs and the results of the During the Post-Assessment Phase, are not, intended to provide. The preliminary application in the publicly trustees prepare a Report of Assessment NRDAM/CME and the NRDAM/GLE are reviewed Plan. This requirement should detailing the results of the Assessment sophisticated computer models. These provide PRPs and other members of the Phase. When trustees use a type A models incorporate a significant level of public with a more meaningful procedure, the Report will include the site-specific detail about actual physical opportunity for comment. Performance printed output of the final model and biological conditions in the of a preliminary application of the application. If a trustee is aware of geographic areas they encompass. The models will also allow trustees to reliable evidence that a private party has language and legislative history of determine if type B procedures are recovered damages for commercial CERCLA suggest that Congress warranted in light of a new cap on the harvests lost as a result of the release, envisioned type A procedures as look- damages that can be claimed through the trustee must eliminate from the up tables based on dollars per gallon or use of a type A procedure. claim any damages for such lost unit of affected area. See, e.g., S. Rep. The rule now provides that if the harvests included in the lost economic No. 96–848, 96th Cong. 2d Sess. 86 (July preliminary application indicates rent calculated by the model. If a trustee 11, 1980). In requiring the development damages in excess of $100,000, then is aware of reliable evidence that the of two types of assessment procedures— trustees who wish to obtain a rebuttable model application covers resources one simplified and the other more presumption must decide whether to: beyond his or her trustee jurisdiction, complex and site-specific—Congress (1) limit the portion of their claim the trustee must either: (1) have the made a policy choice that trustees be calculated with the type A procedure to other trustees who do have jurisdiction provided with a simplified, inexpensive $100,000; or (2) compute all damages over those resources join in the type A mechanism for obtaining recoveries in using type B procedures. The $100,000 assessment; or (2) eliminate any smaller cases. By envisioning a limit applies only to damages calculated damages for those resources from the mechanism such as a look-up table, by a type A procedure and does not claim. Congress obviously recognized that limit damages calculated through Trustees present the Report of trustees who use type A procedures supplemental type B studies. This dollar Assessment to the PRPs along with a should not be required to develop—or cut-off is based on the fairness of demand for damages and assessment be prejudiced for not developing—the allowing trustees to receive a rebuttable costs. If a PRP does not agree to pay same degree of site-specific accuracy as presumption for damages calculated by within 60 days, the trustees may file might be achieved using more expensive the NRDAM/CME or NRDAM/GLE suit. Federal and State trustees receive type B procedures. Nevertheless, in given the current level of experience a rebuttable presumption of correctness order to increase accuracy, the with these models. The cut-off is not if they performed their assessments in Department has developed computer based on reliability. The Department accordance with the Preassessment models that enable the consideration of believes the NRDAM/CME and Phase, Assessment Plan Phase, site-specific factors. For example, the NRDAM/GLE are capable of generating Assessment Phase, and Post-Assessment NRDAM/CME and NRDAM/GLE take reliable damage estimates at levels Phase requirements set forth in the into account physical variations among above $100,000. Therefore, although regulations. Once a court awards geographic areas, differences in the trustees cannot use the models and damages or the trustees and PRPs have toxicity and physical characteristics of obtain a rebuttable presumption above reached a settlement, trustees establish hazardous substances, seasonal and $100,000, the Department believes the an account to hold the recovered temperature effects, and differences in models are appropriate for use in other damages pending preparation of a the biological productivity of the spill contexts, such as settlement Restoration Plan describing how they site. The Department believes that when negotiations and litigation without the intend to use the funds. applied correctly using reliable input rebuttable presumption. When trustees use a type A data, the NRDAM/CME and NRDAM/ After the close of the comment period procedure, they are not restricted to GLE are powerful, reliable tools for on the Assessment Plan, trustees must implementing the general restoration assessing the injuries and compensable carefully review and substantively methods used by the model to calculate values they address. respond to all comments they receive the restoration cost component of the However, as sophisticated and and must decide whether to continue damage claim. Instead, trustees have the reliable as they are, the NRDAM/CME using the type A procedure. If they do discretion to spend recovered sums on and NRDAM/GLE do not, and were 20564 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations never intended to, constitute automated of estimated restoration costs and technical documents free of charge until type B procedures. The NRDAM/CME compensable values. The NRDAM/CME July 31, 1996. and NRDAM/GLE are, after all, only and the NRDAM/GLE are complex The models have a menu-driven models of selected aspects of reality computer models; however, their use is graphic display to assist users. The and, like all models, they are incapable not restricted to computer specialists. minimum computer configuration of precisely capturing reality in every The NRDAM/CME was developed required to use the models is:  case. Modeling always necessitates under contract to the Department by • IBM -compatible personal  some simplifying assumptions, and the Applied Science Associates, Inc., A.T. computer (PC) using MS–DOS 3.3 or modeling of something as complex as Kearney, Inc., and Hagler Bailly higher; • the effects of hazardous substance spills Consulting, Inc. The NRDAM/GLE was 80386 processor or better with math on natural resources necessitates developed under contract to the co-processor; • numerous simplifying assumptions. Department by Applied Science 1.4 megabyte 3.5 inch floppy disk Section 11.34 of the final rule drive; Associates, Inc., and Hagler Bailly • identifies a number of assumptions the Consulting, Inc. 4 megabytes of RAM with 540 Department made during the kilobytes available; ‘‘CERCLA Type A Natural Resource • development of the NRDAM/CME and Damage Assessment Model for Coastal Hard disk with 75 megabytes of NRDAM/GLE. If these assumptions are and Marine Environments Technical available space; • VGA monitor; and not reasonable in a particular case, Documentation,’’ dated April 1996 (the • Microsoft-compatible mouse and trustees may not use the models and NRDAM/CME technical document) mouse driver software. For further obtain a rebuttable presumption. But describes the NRDAM/CME. Volume I information on installation of the even when these assumptions are of the NRDAM/CME technical models, see Section 2, Volume II of the reasonable, the models’ damage document discusses the content and NRDAM/CME and NRDAM/GLE estimates will differ from the damages derivation of the NRDAM/CME technical documents. that type B procedures would produce. submodels and databases. Volume II is However, Congress explicitly authorized a user’s manual. Volume III is a B. Data Inputs and Modifications the development of simplified type A compilation of the chemical and The models’ databases include most procedures that required less field work environmental databases used by the of the data used by the models to than type B procedures and then NRDAM/CME. Volume IV contains the determine injury and damages. explicitly granted a rebuttable biological databases on the species life However, the final rule requires trustees presumption to assessments performed histories, species abundances, and to provide certain data inputs. The rule using these type A procedures just as it trophic-level production rates used by also requires trustees to modify certain granted a rebuttable presumption to the NRDAM/CME. Volume V is a data contained in the models if they assessments performed using type B compilation of the compensable values have more reliable information. The procedures. Finally, the Department has and restoration costs used by the required data inputs and modifications retained in today’s final rule the safety NRDAM/CME. Volume VI is a listing of are described in § 11.41 and Appendices valve that always allows PRPs to require the active source code for the NRDAM/ II and III. trustees to use type B procedures rather CME. Trustees may have direct knowledge than a type A procedure if they advance ‘‘CERCLA Type A Natural Resource of some of the required data inputs. all reasonable costs of using such type Damage Assessment Model for Great Additional information may be available B procedures within an acceptable time Lakes Environments Technical from the On-Scene Coordinator (OSC), frame. Documentation,’’ dated April 1996 (the who is responsible for managing The standard for evaluating the NRDAM/GLE technical document) response actions following a release. results of the NRDAM/CME or the describes the NRDAM/GLE. Volume I of The U.S. Coast Guard will normally be NRDAM/GLE in a particular case is not the NRDAM/GLE technical document the OSC for releases in coastal or marine whether the model projections conform discusses the content and derivation of environments or the Great Lakes. precisely to field observations. Rather, the NRDAM/GLE submodels and However, trustees remain responsible the standard is whether the overall databases. Volume II is a user’s manual. for ensuring that all data inputs are damage figure calculated by the models Volume III is a compilation of all the reliable. is fair and reasonable in light of the databases used by the NRDAM/GLE. feasibility and cost of developing more Volume IV is a listing of the active C. Geographic Information System specific information using type B source code for the NRDAM/GLE. The models incorporate a geographic procedures. For example, if a spill Today’s final rule incorporates by information system (GIS) that supplies occurs in an area where biological reference the NRDAM/CME, the geographically distributed information conditions are relatively uniform over a NRDAM/CME technical document, the to the submodels. The submodels divide wide area, the fact that the NRDAM/ NRDAM/GLE, and the NRDAM/GLE space into series of rectangular grids. In CME or NRDAM/GLE project that the technical document. Anyone can obtain the NRDAM/CME, each grid contains surface trajectory would turn to the right computer diskettes containing the 10,000 cells (100 × 100). In the NRDAM/ when in fact it turned to the left is not models and technical documents from GLE, each grid contains 2,500 cells (50 necessarily adequate grounds to reject the National Technical Information × 50). The size of a specific grid and, wholesale the results of the model. Service for a fee. The technical therefore, the interior cells, varies based IV. Workings of the NRDAM/CME and documents supplied on diskette are on the physical geometry of and the NRDAM/GLE formatted in WordPerfect 5.1. Some availability of natural resource databases are formatted in QuatroPro. information about the particular A. Overview Hard-bound copies of the technical geographic area. For example, the GIS The NRDAM/CME and the NRDAM/ documents are also available. Also, to uses smaller grids for nearshore areas GLE consist of integrated submodels facilitate prompt distribution of the than for offshore areas. The models and databases that calculate natural models, the Department will be assign a habitat type to each grid cell. resource damages based on certain types providing diskettes of the models and The GIS draws the necessary Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20565 environmental and biotic data from the further information on the chemical and are uniformly distributed throughout a appropriate databases. The models toxicological database, see Section 7, particular habitat type within the model assume that conditions are uniform Volume I, and Section 2, Volume III of grids rather than through use of particle throughout a particular grid cell. the NRDAM/CME and NRDAM/GLE arrays. For further information about the GIS technical documents. Once the biological effects submodel and grid system, see Section 2, Volume determines direct mortality and direct I of the NRDAM/CME technical 2. Biological Effects Submodel loss of production , the submodel then document; and Section 3.15, Volume I The biological effects submodel calculates indirect mortality and of the NRDAM/GLE technical determines whether certain types of indirect loss of production for fish, document. natural resource injuries have resulted shellfish, and wildlife resulting from from the release and, if so, quantifies reductions in food resources. The D. Submodels those injuries. The biological effects submodel uses a generalized food web Both models include four linked submodel determines and quantifies the model to determine the effect that direct submodels: a physical fates submodel, a following types of injury: (1) Direct loss of plant production, invertebrates, biological effects submodel, a mortality resulting from short-term and noncommercial fish and mammals restoration submodel, and a exposure to the released substance; (2) have on higher trophic-level fish, compensable value submodel. The direct loss of production resulting from shellfish, and wildlife. NRDAM/GLE also has a hydrodynamics short-term exposure to the released After determining injuries from both submodel. substance; (3) indirect mortality direct exposure and food web losses, the resulting from food web losses; and (4) biological effects submodel quantifies 1. Physical Fates Submodel indirect loss of production resulting those injuries both in terms of lost The physical fates submodel estimates from food web losses. The biological populations over time and, in the case the distribution of the released database supplies data on habitat type of fish, shellfish, and wildlife, fishing substance on the water surface, along and species biomass to the biological and hunting losses. The submodel also shorelines, in the water column, and in effects submodel. computes fishing and hunting losses sediments over time. The submodel uses The biological effects submodel resulting from closures. The an array of computational ‘‘particles’’ to determines direct mortality of fish, compensable value submodel uses this represent the released substance. A shellfish, and wildlife and direct loss of information to determine compensable variable fraction of the released production for plants and invertebrates value. substance is associated with each by calculating exposure of different For further information on the particle. The submodel tracks the species to the released substance. When biological effects submodel, see Section distribution of the particles in both time performing these calculations, the 4, Volume I of the NRDAM/CME and and space as they move across a three- biological effects submodel uses the NRDAM/GLE technical documents. For dimensional gridded environment. time series data generated by the further information on the biological Modeled wind and current effects physical fates submodel concerning the database, see Section 6, Volume I, and drive the movement of the particles on distribution and concentration of the Volume IV of the NRDAM/CME the water surface and in the water released substance. technical document; and Section 8, column. In the NRDAM/GLE, the The biological effects submodel Volume I, and Section 3, Volume III of hydrodynamics submodel simulates the determines direct mortality of fish and the NRDAM/GLE technical document. wind-driven currents occurring in the shellfish through use of an array of water column. In the NRDAM/CME, the computational ‘‘particles’’ that move 3. Restoration Submodel physical fates submodel simulates through the gridded environment. Each The restoration submodel estimates wind-driven currents in the upper water particle represents a portion of the fish the cost, if any, of restoring the injured column and employs user-supplied data or shellfish populations potentially resources. The submodel first evaluates inputs on background and tidal currents exposed to the release. Each time a possible habitat restoration and to simulate movement in the upper and particle enters an area with dissolved restocking actions. The submodel lower water column. water or sediment concentrations of the analyzes the costs and benefits of any Drawing data about the physical and spilled substance, the submodel possible habitat restoration and chemical properties of the released calculates the percentage mortality of restocking actions to determine whether substance from the chemical and the fish or shellfish population these forms of active restoration or toxicological database, the submodel represented by the particle. These natural recovery should be assumed for continues simulating the transport and calculations continue until purposes of the models’ damage fate of the substance until all concentrations of the released substance calculations. In some cases, the environmental exposure levels are fall below acute toxicity thresholds. submodel also determines the cost of below a specified concentration (the The biological effects submodel uses restoring lost assimilative capacity. The acute toxicity threshold). The acute similar procedures to determine direct active restoration costs, if any, toxicity threshold serves as a switch to mortality of birds and mammals. computed by the restoration submodel turn off the physical fates submodel and However, the submodel only determines comprise one component of the damage activate the biological effects submodel. direct mortality of birds and mammals figure; the other component, The submodel creates a time-series file when the released substance forms a compensable value, is calculated by the of surface slick coverage, shoreline surface slick. compensable value submodel. coverage, and substance concentration The biological effects submodel For certain types of habitats, the levels in the water column and in determines direct mortality of fish and restoration submodel evaluates habitat bottom sediments that is used by the shellfish eggs and larvae through use of restoration action. The submodel biological effects submodel. particle arrays that move with the identifies those habitats for which For further information on the currents, as biologically appropriate. For human intervention may potentially physical fates submodel, see Section 3, plants and invertebrates, the submodel facilitate recovery. For each such habitat Volume I of the NRDAM/CME and determines direct loss of production in each affected area, the restoration NRDAM/GLE technical documents. For based on the assumption that such biota submodel evaluates the effect that a 20566 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations particular active restoration alternative the measured benefits, then the The submodel computes the following would have on the compensable value submodel assumes, for purposes of types of compensable values: calculated by the model. If the relevant generating a damage figure, that natural Lost economic rent for lost commercial active habitat restoration alternative recovery, rather than active restoration, harvests resulting from any closures specified would result in a lower total will be used to reestablish baseline by the authorized official and/or from compensable value for a particular grid conditions. If the costs do not exceed population losses; cell than reliance upon natural recovery, the measured benefits by ten times, then Lost recreational harvests resulting from then the restoration submodel computes the submodel assumes, for purposes of any closures specified by the trustee and/or the cost of performing that alternative generating a damage figure, that habitat from population losses; In the NRDAM/CME, lost wildlife viewing, for that grid cell. The restoration cost restoration and restocking actions will resulting from population losses, by residents database supplies information on unit be implemented. of the States bordering the provinces in restoration costs to the restoration Finally, for releases that generate a which the population losses occurred; submodel. The biological effects and damage figure related to mortality and In the NRDAM/GLE, lost wildlife viewing, compensable value submodels supply loss of productivity, the restoration resulting from population losses, by residents information to the restoration submodel submodel also calculates the cost of of local areas bordering the provinces in which the population losses occurred; Lost concerning the extent of injury and restoring the water’s baseline ability to compensable value with and without beach visitation due to closure; and absorb pollutants (assimilative In the NRDAM/GLE, lost boating due to active habitat restoration. If the active capacity). In the case of such releases, closure. habitat restoration alternative would not the restoration submodel determines the The submodel calculates compensable result in a lower total compensable amount of the released substance that value for lost economic rent by value than reliance upon natural would remain in the environment after recovery, then the restoration submodel multiplying the total lost harvest of the environmental exposure levels are species, as computed by the biological does not compute any habitat below acute toxicity thresholds and restoration costs. effects submodel, by the commercial after any habitat restoration actions are price per unit of harvest, as supplied by The restoration submodel evaluates completed. The submodel then the following types of active habitat the compensable value database. The computes the cost of removing a rule provides that if a trustee is aware restoration alternatives against natural contaminant mass with toxicity recovery: of reliable evidence that a private party equivalent to the remaining non-acutely has recovered damages for commercial For open water sediments: dredging and toxic dispersed mass of the released refilling with clean material (shallow water); harvests lost as a result of the release, substance from other identified the trustee must eliminate from the or capping (deep water); contaminated sites. When determining For wetlands, macroalgal beds, and claim any damages for such lost seagrass beds: replacement of contaminated the amount of contaminant mass to harvests included in the lost economic substrate and replanting (if sediments are remove, the submodel adjusts for the rent calculated by the model. toxic); or replanting (if sediments are not relative degradability of that The submodel calculates compensable toxic but mortality has occurred); contaminant compared to that of the value for lost recreational harvests by For invertebrate reefs (coral and mollusk): spilled substance. The restoration cost multiplying the total lost recreational replacement of contaminated substrate and database supplies data on unit costs to harvest of the species, as computed by reseeding (if sediments are toxic); or the restoration submodel. reseeding (if sediments are not toxic but the biological effects submodel, by the mortality has occurred); and The restoration submodel sums the marginal value of harvesting an For shorelines in coastal or marine costs of any selected types of active additional animal, as supplied by the environments: washing of sand and gravel; restoration. The models combine this compensable value database. The replacement of mud; and chemical washing figure with the compensable value submodel computes damages only for of rocky shoreline. figure computed by the compensable harvests lost due to populations losses The restoration submodel then value submodel to form the final or closures. The submodel does not considers restocking of fish and damage figure. compute damages for lost quality of wildlife. If stocks of the same age as the For further information on the recreational fishing unrelated to lost injured fish and wildlife are available restoration submodel, see Section 5, harvests or for lost trips due to de facto through captive breeding programs, then Volume I of the NRDAM/CME and closures. the submodel computes the cost of NRDAM/GLE technical documents. For The compensable value submodel restocking those species after the habitat further information on the restoration computes compensable value for a has recovered, either through natural cost database, see Sections 5, 12, and 13, specific range of lost wildlife viewing. recovery or active habitat restoration. Volume I, and Sections 5 through 7, First, the submodel only calculates The restoration cost submodel supplies Volume V of the NRDAM/CME wildlife viewing damages resulting from data on the availability and cost of technical document; and Section 9, population losses and does not address stocks to the restoration submodel. Volume I and Section 5, Volume III of damages resulting from closures. If the relevant active habitat the NRDAM/GLE technical document. Second, the submodel only calculates restoration alternative would reduce losses incurred by certain segments of 4. Compensable Value Submodel compensable value or if restocking is the wildlife viewing public. The models possible, then the submodel performs a Compensable value, as computed by divide geographic areas into provinces. cost-benefit test of these forms of active the compensable value submodel, is the The NRDAM/CME computes lost restoration. The submodel compares the sum of certain economic use values lost wildlife viewing only for residents of total costs of active habitat restoration to the public pending the States bordering the provinces in which and restocking against the measured reestablishment of baseline conditions the population loss occurred. The benefits of such restoration (i.e., through either natural recovery or active NRDAM/GLE computes lost wildlife compensable value assuming natural restoration, as determined by the viewing only for residents of local areas recovery minus compensable value restoration submodel. Only public bordering the provinces in which the assuming active habitat restoration and losses are included in compensable population loss occurred. The submodel restocking). If the costs exceed ten times value. calculates damages by multiplying the Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20567 number of viewing trips affected by the the model output indicates damages in presumption, such use can produce release by the per-animal marginal excess of $100,000, then trustees who reliable damage estimates if done viewing value for the animals killed. wish to obtain a rebuttable presumption properly. The compensable value submodel must either: (1) Limit the portion of VI. Summary of Major Changes from computes compensable value for lost their claim calculated with the type A the Proposed Rules beach visitation only if trustees specify procedure to $100,000; or (2) compute that there has been a closure of a beach. all damages using type B procedures. The Department has made numerous The submodel does not calculate For further information on the changes in the rule language and models damages for lost quality of beach compensable value submodel, see based on the comments received. The visitation or for lost beach visitation due Sections 8 through 11, Volume I of the Department discusses its rationale for to de facto closures. If a closure is NRDAM/CME technical document; and these changes in Section VII of this specified, the compensable value Section 6, Volume I of the NRDAM/GLE preamble. submodel calculates compensable value technical document. For further A. Rule Language by multiplying the length of beach information on the compensable value closed per day and the number of days database, see Sections 8 through 11, The Department has made several closed, as supplied by trustees, by the Volume I, and Sections 1 through 4, major substantive changes to the per-day value of trips to the closed Volume V of the NRDAM/CME proposed rule language. With regard to length. The compensable value database technical document; and Section 6, the applicability of the type A supplies data on the per-unit value of Volume I, and Section 4, Volume III of procedures, the Department has lost beach visitation. the NRDAM/GLE technical document. modified the conditions that must be The NRDAM/GLE computes met before a trustee can use a type A compensable value for lost boating only V. Use of the NRDAM/CME and procedure to obtain a rebuttable if trustees specify that there has been a NRDAM/GLE in Other Contexts presumption and has eliminated the closure of a boating area. The model The Department is issuing today’s provision that would have required does not calculate damages for lost final rule in compliance with the trustees to use the type A procedures in quality of boating or for lost boating statutory requirement to develop some circumstances. Instead of trips due to de facto closures. If a procedures for conducting simplified delineating ‘‘primary’’ and ‘‘secondary’’ closure is specified, the compensable assessments that are entitled to a conditions for use as the proposed rule value submodel calculates compensable rebuttable presumption. The standards did, the final rule now provides that if value by multiplying the geographic in today’s final rule apply only when the conditions for use of the models area closed per day and the number of trustees use the type A models to listed in § 11.34 are met, then trustees days closed, as supplied by trustees, by develop a damage figure and intend to decide whether to use type A or type B the per-day value of trips to the closed obtain a rebuttable presumption for that procedures based on an evaluation of area. The compensable value database figure in litigation. Trustees who use the the averaged data and simplifying supplies data on the per-unit value of models in other contexts, such as assumptions listed in the NRDAM/CME lost boating. The NRDAM/CME does not settlement negotiations or litigation and NRDAM/GLE technical documents. compute compensable value for lost without the benefit of the rebuttable The Department has also more clearly boating. presumption, are not subject to the rule delineated the conditions under which The per-unit values in the standards. In these other contexts, trustees can use type B procedures to compensable value database are stated trustees are free to make modifications supplement a type A procedure and the in 1991 dollars for the NRDAM/CME to the model databases beyond those process for doing so. and 1990 dollars for the NRDAM/GLE. permitted under the rule and to use With regard to operation of the The compensable value submodel uses some, but not all, of the components of NRDAM/CME and the NRDAM/GLE, the Gross National Product Implicit the models. the rule now allows trustees to modify Price Deflator, as supplied by trustees, For example, trustees may wish to use the habitat designations in the models to adjust per-unit values to current the models to develop a benchmark and still obtain a rebuttable dollars. The compensable value damage figure for settlement presumption. The rule also requires submodel discounts the value of future negotiations but may have more up-to- trustees to perform a preliminary losses using a three percent discount date or more site-specific information application of the NRDAM/CME or rate. on recreational fishing values. In that NRDAM/GLE and make the results After applying the Gross National case, trustees may choose to apply the available for public review before Product Implicit Price Deflator and the models using modified recreational performing a final application and discount rate, the compensable value fishing values, notwithstanding the rule presenting a demand to the PRP. submodel sums the lost values to provisions concerning modification of The final rule contains three new calculate a compensable value figure. the model databases. In other situations, provisions that require trustees in some This figure is added to the restoration trustees may choose to rely on the cases to adjust the damage figure costs, if any, computed by the models’ predictions of injury but calculated by the models before restoration submodel to form the final perform their own analyses of presenting a demand. First, the rule now damage figure calculated by the models. restoration alternatives and provides that if trustees are presented The rule provides that if a trustee is compensable values. Trustees may also with evidence that private parties have aware of reliable evidence that the choose to rely on the models’ damage obtained recoveries for lost commercial model application covers resources calculations for some resources but for harvests, they must eliminate any beyond his or her jurisdiction, the other resources substitute their own damages for such lost harvests included trustee must either: (1) Have the other damage calculations for other resources in the lost economic rent calculated by trustees who do have jurisdiction over covered by the models. The Department the model. Second, the rule provides those resources join in the type A believes that although use of the type A that if a trustee is aware of reliable assessment; or (2) eliminate any models in these ways would not be evidence that the model application damages for those resources from the covered by today’s rule and, therefore, covers resources beyond his or her claim. Further, the rule provides that if would not be entitled to a rebuttable trustee jurisdiction, the trustee must 20568 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations either: (1) Have the other trustees who necessary to conform to other provisions The final rule revises subsection (c) to do have jurisdiction over those in today’s final rule. Existing subsection make it easier to understand and to resources join in the type A assessment; (a), which applied to both type A and make the same necessary conforming or (2) eliminate any damages for those type B procedures, did not authorize change described in the discussion of resources from the type A damage performance of any assessment § 11.30. calculation. Third, the rule provides methodologies until after the period of The final rule language revising that if the model output indicates public review and comment for the subsection (f) is slightly reworded, but damages in excess of $100,000, then Assessment Plan. Section 11.42 of substantively the same as, the language trustees who wish to obtain a rebuttable today’s final rule requires trustees to in the August 1994 proposed rule. As presumption must either: (1) Limit the perform a preliminary application of the explained in the August 1994 notice of portion of their claim calculated with NRDAM/CME or NRDAM/GLE before proposed rulemaking, this provision the type A procedure to $100,000; or (2) releasing the Assessment Plan for public clarifies that the confirmation of compute all damages using type B review and comment. Trustees who use exposure requirement applies to type B, procedures. type B procedures, however, must still but not type A, procedures. Original The Department has also eliminated make the Assessment Plan available for §§ 11.34(a)(1), 11.31(c)(1), and the proposed clarification of the scope public review and comment before 11.33(b)(4) already established this of review of a type A assessment in a performing any of the procedures distinction. Today’s final rule language natural resource damage case. contained in the Plan. See § 11.32(c) of merely makes the rule easier to Finally, as part of its regulatory today’s final rule. The Department has understand. reform efforts, the Department has revised the heading of the section and Section 11.33 What Types of rewritten the final rule in plain English. the language of subsection (a) to make Assessment Procedures Are Available? The Department believes this revision them easier to understand and to make has made the rule significantly clearer this conforming change. The Today’s final rule revises § 11.33 to and easier to read. Department has also modified limit this section to providing a brief The following is a section-by-section subsection (c)(1)(vi) to make a necessary description of the difference between analysis of the final rule: conforming change cross-referencing type A and type B procedures. Subpart A—Introduction other rule provisions. Section 11.34 When May the Section 11.31 What Does the Authorized Official Use a Type A Section 11.15 What Damages May a Procedure? Trustee Recover? Assessment Plan Include? The final rule revises the heading and New § 11.34 combines and revises The Department has rewritten the changes that were proposed for § 11.33 heading of this section to make it easier rule language to make the section easier to understand. Subsection (a)(1) adopts in the August 1994 and December 1994 to understand. The final rule language proposed rules. This section now states revising subsection (a)(1) is unchanged as final the language in the August 1994 proposed rule. the threshold conditions that must be from the August 1994 proposed rule. present before a trustee may use a type The Department has revised The final rule eliminates the separate A procedure, many of which were subsection (b) from the August 1994 subsections referring to type A included among the ‘‘primary’’ proposed rule to make it clear that the procedures, type B procedures, or a conditions in the proposed rules. combination of type A and B procedures Assessment Plan must include a in the same assessment. Sections 11.34 detailed explanation of how the Section 11.35 How Does the through 11.36 include the criteria and trustee’s decision to use a type A Authorized Official Decide Whether to standards for selecting type A procedure, type B procedures, or a Use Type A or Type B Procedures? procedures, type B procedures, or a combination, satisfies the decisional New § 11.35 further revises changes combination, making additional detail standards contained in the rule. that were proposed for § 11.33. The in this introductory section Subsection (c) clarifies and corrects section provides decisional criteria for unnecessary. existing rule language, which was the determination whether to use type A garbled in 1988. Compare 53 FR 5174 Section 11.18 Incorporation by or type B procedures, assuming that the (Feb. 22, 1988) with 51 FR at 27731. Reference conditions in § 11.34 are met. The final Although this language was not in the rule language requires trustees to base The final rule slightly revises and proposed rules, it is a nonsubstantive the decision whether to use type A or updates the proposed rule language change. Subsection (c)(1) has been type B procedures on an evaluation of incorporating by reference the NRDAM/ modified to make a necessary the data and assumptions in the type A CME technical document, and adding conforming change cross-referencing procedures, as described in the language incorporating by reference the redesignated § 11.37. NRDAM/CME and NRDAM/GLE NRDAM/GLE technical document. Subsection (d) revises the existing technical documents. These Section 11.19 Information Collection rule language to make it easier to assumptions include many of the understand. Subpart D contains the ‘‘secondary conditions’’ contained in The final rule retains the December requirements concerning identification the proposed rules. 1994 proposed rule language to remove and documentation of information, and and reserve this section. therefore it is unnecessary to repeat Section 11.36 May the Authorized Official Use Both Type A and Type B Subpart C—Assessment Plan Phase them in subsection (d). Procedures for the Same Release? Section 11.32 How Does the Section 11.30 What Does the New § 11.36 provides standards for Authorized Official Develop the Authorized Official do if an Assessment when trustees may use both a type A Assessment Plan? is Warranted? procedures and type B procedures for The final rule makes several revisions The Department has revised the the same release. The August and to this section that were not included in heading of this section to make it easier December 1994 proposed revisions to the proposed rules, but which are to understand. § 11.33 included similar modifications. Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20569

Today’s final rule language provides they have reliable evidence that the Subpart F—Post-Assessment Phase clearer, more specific criteria, and databases are incorrect. Section 11.90 What Documentation specifically identifies the categories of Must the Authorized Official Prepare injury and compensable value Section 11.42 How Does the After Completing the Assessment? addressed by the type A procedures. Authorized Official Apply the NRDAM/ Subsection (d) addresses the issue of CME and NRDAM/GLE? The Department has revised the final rule from the August 1994 proposed which type B procedures must be This section contains a new followed when a trustee decides to rule to make the heading and rule procedure requiring trustees to perform combine a type A and type B procedures language simpler and easier to a preliminary application of the in a single assessment. understand. The substantive effect of NRDAM/CME or NRDAM/GLE as part this provision is the same as existing Section 11.37 Must the Authorized of the process for deciding whether to § 11.90. Official Confirm Exposure Before use a type A procedure. If the trustee Implementing the Assessment Plan? decides to continue with a type A Section 11.91 How Does the Authorized Official Seek Recovery of the The Department has revised the procedure, then the data inputs, modifications, and results of the Assessed Damages From the Potentially heading of this section (formerly Responsible Party? § 11.34) and has modified subsection (a) preliminary application become part of from the proposed rule to make it easier the Assessment Plan. Today’s final rule revises the heading to read. Subsection (a) clarifies the of the section and the first sentence of Section 11.43 Can Interested Parties intent of the existing rule that the subsection (a) to make the rule language Review the Results of the Preliminary confirmation of exposure requirement simpler and easier to understand. The applies only to type B procedures. Application? substantive effect of this provision is the same as existing § 11.91. Although former § 11.34(a) did not This section requires trustees who expressly distinguish between type B decide to continue with a type A Appendices and type A procedures, former procedure to develop an Assessment The Department has added two new §§ 11.31(c)(1) and 11.33(b)(4) limited Plan, which must include the data the confirmation of exposure appendices to the rule. These inputs, modifications, and results of the requirement to type B procedures. appendices specify the format for data preliminary application. The trustee inputs and modifications for the Subpart D—Type A Procedures must make the Assessment Plan NRDAM/CME and NRDAM/GLE. available for public review and Section 11.40 What Are Type A B. NRDAM/CME and NRDAM/GLE comment. Procedures? The Department has made several The Department has revised the Section 11.44 What Does the major substantive changes to the heading of this section and the language Authorized Official do After the Close of NRDAM/CME and NRDAM/GLE of subsection (a) to make them easier to the Comment Period? computer code and databases. The read, to add references to the type A Department has revised the chemical procedures for Great Lakes Subsections (a) through (c) of this database for both the NRDAM/CME and environments, to provide additional section state the procedural and NRDAM/GLE to incorporate an information about both type A substantive requirements following additional 24 oils and petroleum procedures, and to incorporate the public comment on the Assessment products. The Environment Canada requirement that a trustee must follow Plan, which include performing a final publication, ‘‘A Catalogue of Crude Oil the procedures in §§ 11.41 through application of the NRDAM/CME or and Oil Product Properties,’’ and 11.44 when using either of the two type NRDAM/GLE and preparing a Report of NOAA’s ADIOS (Automated Data A procedures. Today’s final rule Assessment. Subsection (d) includes Inquiry for Oil Spills) database provided provides a more detailed description of specific criteria to preclude double the principal sources of information for type A procedures than was contained recovery for economic rent for lost revision of the databases. The in the August 1994 proposed revision to commercial harvests if a private party Department also deleted the following § 11.40. has already recovered for the same hazardous substances from the database: pure metals, nontoxic substances, and Section 11.41 What Data Must the damages. Subsection (e) resolves a substances for which the toxicity Authorized Official Supply? potential problem arising when trustees have not agreed in advance to use a type threshold was less than the water This section identifies the data inputs A procedure jointly. Subsection (f) solubility. The Department deleted a and modifications that the trustee must limits the damages that may be total of 31 hazardous substances from supply to use the NRDAM/CME or recovered by trustees who use the the NRDAM/CME database and 32 NRDAM/GLE. Today’s final rule NRDAM/CME or NRDAM/GLE and hazardous substances from the NRDAM/ modifies and simplifies proposed intend to obtain a rebuttable GLE database. § 11.42 (c) and (d) in the August 1994 presumption. The Department has included an proposed rule, and proposed revisions additive toxicity model for oil and to § 11.41 in the December 1994 Subpart E—Type B Procedures petroleum products in the biological proposed rule. The final rule language effects submodel to address the additive for § 11.41 is considerably shorter than Section 11.73 Quantification Phase- toxicity of the multiple substances in oil that in the proposed rules, because the Resource Recoverability Analysis and petroleum products. The additive format for data inputs and modifications The Department has revised toxicity model also addresses the effects is now contained in two new subsection (a) to make a necessary of oil weathering. appendices to the rule. The final rule The Department has updated the conforming change to cross-reference now requires trustees to make certain wildlife viewing values contained in redesignated § 11.35 (now § 11.38). modifications to the model databases, both the NRDAM/CME and NRDAM/ including the habitat designations, if GLE economic databases based on 20570 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations recent information available from the Finally, the Department has revised Section 11.15(a)(1)(iii) of the original 1994 addendum to the 1991 National the calculation of assimilative capacity type A rule, which was promulgated in Survey of Fishing, Hunting, and restoration costs to correct for the 1987, established that trustees could use Wildlife-Associated Recreation degradation rate of the spilled substance both type A and type B procedures for developed by the U.S. Fish and Wildlife and to limit the calculation of the same release under certain Service (FWS). Also, in the NRDAM/ assimilative capacity restoration costs to circumstances. See 52 FR at 9095. The CME, the Department revised the cases where biological injury has Department did not repropose, revisit, wildlife viewing values to reflect the occurred and produces compensable or solicit comment on whether CERCLA total population of the respective coastal value. allows trustees to combine type A and type B procedures. The only issue raised states. VII. Response to Comments In the NRDAM/CME, the Department and addressed in this rulemaking was has modified the habitat grids to The Department received numerous whether the Department should expand provide a finer scale resolution. The public comments on the proposed type the authorization for combined use of Department changed the scale from a 50 A procedures. The Department and type A and type B procedures. x 50 grid to a 100 x 100 grid. The NOAA also asked several independent Finally, the Department did not Department has also upgraded the technical reviewers to examine the repropose, revisit, or solicit comment on Microsoft compiler to allow for use of proposed NRDAM/CME. The its long-standing positions on the 32-bit processing and additional random Department made the comments of recoverability of damages for lost access memory (RAM). these independent technical reviewers economic rent and lost assimilative The Department has revised the east available to the public and included capacity. Both the original type B rule coast wetland habitats represented in them in the administrative record for and the original type A rule explicitly the NRDAM/CME grids for provinces this rulemaking. See 60 FR 28773 (June allowed for the recovery of lost 2, 1995). The Department provides 11, 12, and 13 (New York and New economic rent. See 43 CFR 11.83(c)(1); responses to both the public comments Jersey) to incorporate more site-specific 51 FR at 27749; and 52 FR at 9047. The and the comments of the independent data provided by commenters. See Department has recognized the loss of technical reviewers below. Section 3.4, Volume III of the NRDAM/ assimilative capacity as a legitimate In addition to the issues discussed category of natural resource damages CME technical document. below, commenters addressed a number In the NRDAM/CME, the Department since the promulgation of the original of issues beyond the scope of this type B procedures in 1986. 51 FR at has substantially revised wildlife rulemaking. The Department explicitly abundance data for provinces 40 27716; see also 59 FR at 14273. The limited this rulemaking to four issues: Department has begun a biennial review through 51 (west coast and the Gulf of the revision of the existing type A of the type B procedures and will be Alaska) based on additional information procedure for coastal and marine considering the issues of lost economic and data provided by public environments; the development of a rent and lost assimilative capacity in commenters. new type A procedure for Great Lakes that context. See 59 FR 62749 (Oct. 19, The Department has added a habitat environments; the conditions for 1994). editor to the NRDAM/GLE user interface combined use of type A and type B consistent with that provided in the procedures; and the scope of judicial A. General Comments proposed NRDAM/CME. review of assessments performed using Comment: Some commenters The Department has included type A procedures. See 59 FR at 40319– supported the concept of a reliable, intertidal seagrass as an additional 20, 63300, and 63302. Nevertheless, accurate, automated damage assessment habitat type in the NRDAM/CME. The some commenters raised additional procedure that would eliminate the intertidal seagrass habitat includes those issues, including: whether trustees need for expensive tailor-made studies. common habitats for tropical seagrass should be allowed to pool natural However, other commenters objected to and eelgrass. resource damage recoveries to the calculation of damages through what The Department has disaggregated the implement regional restoration plans; they considered to be abstract model output files for the injury and the permissibility of using type A and application of theoretical, generic damage calculations resulting from type B procedures for the same release; models. Some of these commenters direct kills versus food web and habitat and whether lost economic rent and the thought that many of the calculations of losses, and from commercial versus cost of restoring lost assimilative the NRDAM/CME and NRDAM/GLE recreational fishing losses. capacity are legally permissible were based on unsubstantiated The Department has revised the active categories of damages. The Department assumptions. habitat restoration alternatives has not evaluated, and is not providing A number of commenters, including evaluated for structured habitats (i.e., substantive responses to, comments on some of the independent technical wetlands, seagrass beds, macroalgal these issues in this rulemaking. reviewers, questioned the Department’s beds, and invertebrate reefs) to include Section 11.93(d) of the existing use of ‘‘grand averages’’ to extrapolate not only sediment replacement with regulations, which was promulgated in data for a specific species, substance, or replanting but also replanting alone. 1987, allows pooling of multiple type A location, to different species, The Department has eliminated the recoveries to implement a single substances, and locations. Commenters calculation of compensable value for restoration plan, so long as the plan is were particularly concerned about the lost boating and subsistence losses from intended to address the same or similar extrapolation of economic values made the NRDAM/CME. injuries as those identified in each in the compensable value submodel. For The Department has revised the application of the type A procedure. See example, commenters noted that some restoration submodel to include a cost- 52 FR at 9100. The Department neither of the studies used to value recreational benefit test for determining whether the reproposed, revisited, nor solicited fishing in the NRDAM/CME were based measured benefits of active habitat comment on § 11.93(d) and merely cited on freshwater fishing and commercial restoration and restocking, as compared it in the preambles to the proposed rules fishing. Commenters also stated that to natural recovery, are worth the by way of background. 59 FR at 40324 many of the studies used outdated data additional costs. and 63305. and outdated or unreliable Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20571 methodologies. For example, With regard to the compensable value the damage figures produced by the commenters noted that recreational submodel, the Department did apply models are nothing more than sheer hunting values were derived from a 20- specific criteria during its selection of speculation and are not legally year old contingent valuation study. studies to use for benefits transfer. The sufficient due to the compounding of Some commenters suggested specific Department used only studies that: (1) errors, uncertainties, biases, and criteria that they thought should be met Were based on an extensive literature overestimates. when performing benefits transfer (i.e., review and consultations with relevant Response: As discussed in more detail the extrapolation of economic values governmental agencies; (2) reasonably below, the Department has carefully derived from studies of one situation to represented the natural resource and reviewed all comments it received on another situation). public use under investigation; (3) the proposed models and rule language. Response: CERCLA requires that type contributed to a reasonable Based on this review, the Department A procedures involve ‘‘minimal field representation of the different regions has made numerous modifications to observation’’ and authorizes type A included in the models; (4) were the models and the rule language. procedures to be based on ‘‘units of conducted by a recognized university- Where the Department concluded that discharge or units of affected area.’’ associated researcher or established no changes were needed, the CERCLA sec. 301(c)(2)(A). The Senate consulting firm; and (5) used Department has explained its reasoning. Report that accompanied the appropriate valuation methodologies. The Department believes that the final predecessor bill to CERCLA provides The Department believes that these type A models, as revised in response to the following indication of Congress’ criteria adequately address all the comments, are best available procedures intent: concerns that the commenters’ when used in accordance with the Natural resource damage assessments suggested criteria are intended to standards and process set forth in based on this type of regulation [type A] address. The first three criteria assure today’s final rule. The models, with should require as little fieldwork as possible, that the resources considered in the their state-of-the-art modeling and and rely on a combination of habitat values, selected studies are as similar as extensive databases, represent a tables of values for individual species, and possible to the resources to be valued in significant advancement beyond the previously conducted surveys and laboratory the models. The fourth criterion assures original NRDAM/CME issued in 1987. studies, related to units of discharge or units that the selected studies are The final type A procedures provide for of affected area. S. Rep. No. 96–848 at 86. scientifically sound. The fifth criterion reliable, cost-effective, simplified This language indicates that Congress assures that the selected studies use assessments that are entitled to a envisioned the development of type A appropriate valuation methodologies. rebuttable presumption. procedures that do not require the Comment: One commenter suggested Comment: Several commenters performance of any new studies but that the Department had developed the thought the Department had been overly instead use existing studies to provide models by selecting values from a few ambitious in attempting to develop generalized values that can be applied studies while ignoring others. The models like the NRDAM/GLE and the in specific cases. Inherent in the commenter argued that the Department NRDAM/CME. Specifically, these concept of developing unit values from had failed to provide adequate commenters stated that the biological existing studies is the notion of making justification for the values it selected. effects submodel attempted to perform a assumptions in the absence of empirical Response: The Department conducted task that is beyond the current state of data and applying average values across extensive searches for available ecological modeling. The commenters a range of nonidentical items. Therefore, information. Some data the Department contended that state-of-the-art the Department believes that CERCLA identified were not used because better ecological modeling is not yet capable of authorizes it to make appropriate or more applicable data were available. producing accurate quantitative extrapolations from existing data. However, none of the identified data determinations and is primarily useful The science of natural resource was ignored. The Department believes only for making qualitative predictions. damage assessment is still evolving. The that the NRDAM/CME and NRDAM/ The commenters also thought that the universe of relevant studies is still very GLE technical documents adequately multiple iterative calculations small for many crucial aspects of explain and justify the values in the performed by the biological effects damage assessment. Existing data are models. submodel did not alleviate the problem particularly limited as to the effects of Comment: Some commenters thought but simply amounted to averaging of small spills. Even when addressing the that the proposed type A models were nonsense. limited range of scenarios covered by so technically flawed that they did not Response: The Department agrees that the NRDAM/CME and the NRDAM/ meet the statutory standard of ‘‘best ecological models should generally be GLE, the Department faced significant available procedures’’ and, therefore, used only for qualitative predictions. challenges in bridging data gaps. trustees should not obtain a rebuttable However, the biological effects Although Congress did authorize the presumption if they use the models. submodel in the NRDAM/GLE and the Department to make extrapolations from These commenters urged the NRDAM/CME is not a true ecological existing data, the Department recognizes Department to abandon the models model in the sense suggested by that any such extrapolations must be noting that Colorado v. Interior does not commenters. Ecological models evaluate reasonable. Thus, when developing the require or authorize the Department to the changes in ecosystem structure and models, the Department tried to make issue a model that is unreliable. One function resulting from disturbances. use of the most reliable information commenter acknowledged that the The biological effects submodel, on the available based on extensive reviews of proposed revised NRDAM/CME other hand, is a toxicological effects published and unpublished information appeared to be an improvement over the model. The biological effects submodel and data; make only those assumptions original NRDAM/CME Version 1.2 simply calculates acute mortality and that are necessary; ensure that any issued in 1987. However, the lost production and projects these assumptions that are made are commenter thought the proposed injuries forward as biota not present or reasonable; and identify clearly all revised model still contained too many used in future years. The submodel assumptions that were required for the flaws to accomplish its intended need not, and does not attempt to, development of simplified procedures. purpose. Another commenter stated that address the higher-order ecological 20572 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations changes in the structure and functions resource effects of small spills. In fact, NRDAM/CME by independent technical of biological systems as true ecological although more data exist for large spills, reviewers was directly relevant for the models do. even those data are limited. NRDAM/GLE because the NRDAM/GLE The Department believes that the Nonetheless, the Department has used incorporates the same basic modeling as NRDAM/CME and NRDAM/GLE are the data that are available to conduct the NRDAM/CME. reasonable tools for assessing the validation studies of the NRDAM/CME Comment: Some of the independent injuries and compensable values that physical fates and biological effects technical reviewers claimed that the they address and do not generate submodels and believes that these proposed NRDAM/CME underestimated ‘‘nonsense.’’ Further, the use of iterative studies suggest that the submodels damages. In support of this claim, these calculations is designed to, and does, provide reasonable estimates of the reviewers noted that when used to enhance the reliability of damage actual physical fates and biological calculate damages for certain actual estimates in particular cases. The effects of spills. Even less data exist for releases, the model generated damage biological effects submodel uses several spills in the Great Lakes than for spills figures that were usually at least an randomized algorithms for processes, in coastal and marine environments. order of magnitude less than the figure such as swimming by fish, that are However, since the NRDAM/GLE for which the parties settled. considered random at the relevant contains the same algorithms as the Response: The Department believes spatial and temporal scales. For each NRDAM/CME, the Department believes that when the conditions set forth in spill modeled, the submodel performs the results of the validation studies of § 11.34 are met, the models will multiple iterative runs and then selects the NRDAM/CME also support the generate reasonable and appropriate the mean result. This approach is a NRDAM/GLE. damage figures for the injuries and generally accepted method of modeling Because of the cost involved in losses these simplified procedures the most probable biological effects for performing site-specific type B studies, address. The Department does not events that have an element of trustees have rarely pursued damage believe that historical settlements randomness. claims for minor releases. Therefore, provide an accurate or meaningful Comment: Some commenters thought virtually no data exist with which to standard against which to judge the the proposed models were validate the restoration and reliability of damage figures generated fundamentally flawed because they compensable value submodels or by the NRDAM/GLE and the NRDAM/ used overly simplistic simulations of determine the need for calibrating the CME. Although real-life case data on movement of biota within a population. damage estimates produced by the physical fates and biological effects can, The commenters stated that these models. In the absence of such data, the in some instances, provide useful simulations could not be improved Department has relied primarily on comparisons when evaluating the because of the lack of basic data on careful reviews of the accuracy and physical fates and biological effects population movement. reasonableness of the data and submodels, bottom-line settlement Response: The Department believes algorithms used in the models. The figures may differ from model damage that the NRDAM/CME and the NRDAM/ Department believes that these reviews figures for a number of reasons that have GLE use the best available procedure for of the scientific underpinnings of the nothing to do with reliability. simulating the movement of biota and models provide adequate support for the First, because of the cost involved in that this procedure is reliable for the reliability of the damage estimates performing site-specific type B studies, purposes of a simplified damage produced by the models. trustees have rarely pursued damage assessment. The Department The Department further believes that claims for minor releases. Therefore, acknowledges that the directed the models are consistent with historical natural resource damage movement of biota is not well congressional intent underlying the settlements usually involve large spills. understood quantitatively. However, at directive to produce procedures for The type A models were designed for the smallest scale, there is a random simplified assessments. The models are minor releases and are based on various component to the movements of animals best available simplified procedures. assumptions that often are not within the habitats they occupy, and the They produce reliable, fair, and reasonable in the case of large spills. NRDAM/CME and NRDAM/GLE can reasonable results when used for their Therefore, the restoration and and do model this component. The intended purpose. The Department has compensable value submodels would models do not simulate within-season, clearly identified the capabilities and not have been applicable to the cases in between-habitat movements, except limitations of the models and has which natural resource damage where currents carry organisms across allowed trustees to select between type settlements have been reached. boundaries. However, the seasonal and A and type B procedures based on Second, it is difficult to determine the habitat-specific abundances included in specified criteria. Finally, the appropriate user inputs for some of the the database do account for inter-habitat Department has retained the provision actual cases, many of which are several movement between seasons. allowing PRPs to require trustees to use years old. For example, user-supplied Comment: Some commenters, type B procedures if they advance the information on beach, and fisheries including some of the independent reasonable cost of using such closures can significantly affect the total technical reviewers, thought that the procedures within an acceptable time damage figure, yet data on the actual Department should validate the models frame. extent of such closures are in some against real-world data and perform Comment: One commenter stated that cases no longer available. sensitivity analyses. A few commenters the NRDAM/GLE should be peer Third, the models do not purport to also thought the Department should reviewed in an open forum prior to capture all, or even most, of the ‘‘real calibrate the models. promulgation. world’’ or ‘‘actual’’ damages that could Response: The Department has Response: The Department believes be determined if the costs of a full on- conducted extensive sensitivity studies that the NRDAM/GLE has been site assessment were not a of both the NRDAM/CME and NRDAM/ adequately reviewed. The proposed consideration. Instead, the models use GLE. It is difficult to conduct conclusive model was made available for public averaged values to calculate a specific validation studies of the models due to review and comment for eleven months. subset of the damages resulting from a the extreme lack of data on the natural Also, the review of the proposed release. When used for the minor Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20573 releases for which they are intended, the the Colorado v. Interior remand as well models and the State table are based on models yield reliable and appropriate as modeling and database improvements different approaches to damage damage figures that are calculated at a made as a result of the biennial review. assessment. The Washington table reasonable cost. Past natural resource Among the most significant differences, establishes a pre-set, per-gallon scale of damage settlement agreements have the original model assumed a generic damages. The type A models, on the generally identified a single damage study area defined by the user with other hand, estimate the actual effects of figure that is not broken down by uniform depth, habitat, and the release and then generate a site- component. In fact, most settlement environmental conditions. Today’s final specific damage figure based on the cost agreements to date have not even listed NRDAM/CME allows for geographic of restoring injured resources plus which types of injuries and losses the resolution of multiple habitats, depths, selected public economic values lost agreement is intended to address. coastline, shore type, currents, ice cover pending recovery. Therefore, it is usually impossible to and other environmental condition. The With regard to PRPs’ potential use of determine if the model is even new NRDAM/CME contains much larger the type A models to undermine the calculating the same type of damages as biological and economic databases, Washington table, the Department those covered by the settlement, let resolving many more species categories would like to emphasize that the type A alone whether the calculation produces and geographic regions. Also, the new models were developed specifically for a damage figure that matches the NRDAM/CME contains a restoration use under Federal law. State or tribal settlement figure. The larger—and more submodel and restoration cost database. simplified procedures may take into complicated—the release, the greater the The Department believes that these and account costs, economic values, or other likelihood of a divergence between the other changes have resulted in considerations not reflected in the type type A damage figures and the more significant improvements in the A models. As such, the damages site-specific damages that might be reliability of the calculations of the produced by the type A models are not calculated using type B procedures. The model. an appropriate point of comparison for fact that such divergence occurs, and Comment: One commenter stated that evaluating State or tribal procedures. even at times might appear ‘‘extreme,’’ the models were unreliable because The type A models in no way preempt does not suggest unreliability or an NOAA used them to develop proposed State or tribal procedures that are inappropriate ‘‘underestimation’’ of OPA compensation formulas that authorized under and designed to damages by the type A models. Rather, generated unrealistic damage figures. enforce non-Federal laws. it only serves to illustrate the limited Response: The Department does not Comment: Several commenters function these procedures are intended believe that damage figures produced by questioned the disparity between the to serve, and the reason they are NOAA’s proposed OPA compensation levels of sophistication of different designed to be used for minor releases, formulas are relevant to the evaluation components of the models. Some of the for which the costs of type B procedures of either the proposed or final versions independent technical reviewers noted cannot be justified when compared to of the NRDAM/GLE and NRDAM/CME. that the compensable value submodel, the anticipated level of damages. On January 7, 1994, NOAA proposed unlike the relatively complex physical Finally, settlements are the result of compensation formulas for determining fates and biological effects submodels, negotiation. The negotiation process natural resource damages under OPA. essentially amounted to a look-up table. usually begins before either party has 59 FR at 1176–77. These formulas were These reviewers thought that the completed its assessment work. based on early developmental drafts of Department should develop a more Settlement negotiations are influenced the NRDAM/GLE and the NRDAM/CME dynamic economics model. Other by both parties’ perception of several that the Department made available to commenters thought that significant factors extraneous to the assessment NOAA in 1991. The Department has disparities in complexity existed even process. These factors include: the extensively modified both the NRDAM/ within the physical fates and biological transaction costs associated with CME and NRDAM/GLE since 1991. For effects submodels. delaying settlement or terminating example, the Department has revised Response: The Department has negotiations and litigating the case; the the algorithms contained in the physical attempted to incorporate the best strength of the liability portion of the fates and biological effects submodels; available procedures for modeling all case; the PRP’s financial condition; and expanded and updated the biological components of the type A models. The the trustee’s ability to fund a complete databases; and revised the chemical and Department acknowledges that the assessment. In light of the influence of economic databases. Section VI.B of this levels of intricacy vary throughout the these factors in settlement negotiations preamble identifies other major changes models. These variances reflect the and the other difficulties in comparing that the Department made to the differing degrees of current technology settlement figures against model NRDAM/CME and NRDAM/GLE as a and scientific knowledge. Economic calculations, the Department does not result of public comments. science has not progressed to the point believe that variances between model Comment: One commenter stated that where there are general models of damage figures and historical the proposed NRDAM/CME recreational demand that can be readily settlements indicates anything about the dramatically underestimated damages as applied to specific recreational activities reliability of the models, when used as compared to the compensation table at specific locations. This is in distinct intended. developed by the State of Washington contrast to the biological and physical Comment: One of the independent under its natural resource damage laws. sciences. The physical fates and technical reviewers questioned why the The commenter expressed concern that biological effects submodels are based damages calculated by the proposed PRPs may use the NRDAM/CME to seek on parameterizations of known and NRDAM/CME do not agree with those reductions in the State compensation generally accepted models of physical calculated by the original NRDAM/CME table. and biological processes. for the same spill. Response: The Department does not Comment: One of the independent Response: The new NRDAM/CME believe it is appropriate or relevant to technical reviewers stated that the differs significantly from the 1987 compare the results of type A model models incorporate some biases that version of the model due to runs against the figures in Washington’s will result in underestimates of damages modifications made in compliance with compensation table, because the type A and other biases that will result in 20574 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations overestimates. The technical reviewer was beyond the ability of untrained alone product that would not require suggested that the models provide a users. One commenter thought the licensing a copyrighted product such as range of damage estimates that reflect technical documents should clearly Windows software. consistent use of conservative state the required user qualifications. Comment: A few commenters assumptions on one end and consistent Several commenters, including some of complained about the speed of the use of liberal assumptions at the other the independent technical reviewers, proposed models. Some commenters end. Another independent technical suggested improved user interfaces. called upon the Department to upgrade reviewer suggested that the models be Some of the independent technical the computer platform required to run modified to perform an uncertainty reviewers thought that additional user the models. The commenters thought analysis for each run. guidance was needed; one suggested that such an upgrade would enable Response: The Department believes it that the Department develop an users to complete model runs in hours has adequately and appropriately animated tutorial. rather than days and would allow the addressed the potential for bias in the Response: While the Department models to use more detailed databases, NRDAM/CME and NRDAM/GLE. The acknowledges that the NRDAM/CME thus increasing accuracy. type A procedures are principally and NRDAM/GLE are functionally very Response: In developing the type A designed to establish a process for complex, it does not believe that they models, the Department had to strike a trustees to follow if they wish to pursue require an undue level of expertise to balance between the desire for the speed a natural resource damage claim and operate. Users must simply be able to: afforded by high-powered computer obtain a rebuttable presumption in (1) Understand the conditions for use in equipment and the need to ensure that court. In a suit for damages, trustees will § 11.34; (2) evaluate the models’ any type A procedure developed is need to identify a specific claim. simplifying assumptions listed in of readily accessible to a wide array of Therefore, the Department has Section 1, Volume I the technical potential users. The Department developed type A models that generate documents; (3) evaluate the averaged believes it has struck the appropriate a single damage figure rather than a data included in the models as balance in the PC environment. range of possibilities. described in Volumes III through IV of It is evident from even a cursory Moreover, where commenters, or the the NRDAM/CME technical document review of the technical documents that Department itself, identified specific and Volume III of the NRDAM/GLE the models are very complex and potential biases in the proposed models, technical document; and (4) enter perform millions of individual the Department modified the models to correctly the required user-supplied calculations during a run. The correct for such biases to the extent data as described in Appendices II and Department has made every effort to possible. Where the Department could III of the rule. Users who meet these optimize the models for speed without not eliminate the potential for bias, it standards will obtain reliable results compromising their accuracy or identified the simplifying assumptions regardless of whether they have a full applicability. Obviously, there continue made in the models that produce that understanding of all the models’ to be advances in PC technology. For the potential. As discussed further below, components. development of the type A models, it those assumptions that could result in As discussed further below, the was necessary for the Department to significant overestimates of damages if Department has revised the regulatory settle on a widely-available computer they are not reasonable in a particular conditions for use of the models to platform and finalize the rule. While case are listed in § 11.34 as conditions clarify a number of points of confusion. more recent technological developments that must be met if the trustees expect Section 1, Volume I of the NRDAM/ will allow these models to run faster on to obtain a rebuttable presumption. CME and NRDAM/GLE technical improved computer platforms, the Those assumptions that are not likely to documents now contains a clearer, Department decided that maintaining result in significant overestimates of simpler discussion of all the major the models for use on 386 PCs would damages if they are not reasonable in a model assumptions of which users not compromise their function or particular case, and, in fact, may result should be aware when determining purpose and would keep them readily in underestimates, are explicitly whether to use type A or type B accessible to potential users. identified in Section 1, Volume I of the procedures. The Department has also Model run times are affected by the NRDAM/CME and NRDAM/GLE rewritten the regulatory discussion of complexity of the spill (e.g., amount technical documents. Section 11.35(a) the user-supplied information and spilled, duration of the spill, and provides that if a type A procedure is moved that discussion into appendices degradation rate of the spilled applicable, trustees must determine in an attempt to make it easier to read. substance) as much as the computer whether to use type A or type B Volume II of the technical documents platform utilized. Nonetheless, for procedures based on an evaluation of includes a revised discussion of how to minor spills, most runs are executed in those model assumptions. develop and input the user-supplied a matter of minutes rather than hours or As discussed in Section III of this data. Finally, the models provide a days even on a 386 PC. The models will preamble, the type A models are neither graphic user interface that has been take significantly less time to run on a expected nor intended to produce revised to further simplify the task of 486 PC or a Pentium PC, but the user damage estimates that ‘‘match’’ the the user. While additional guidance is not precluded from using an older results of more complex site-specific might be helpful and may be developed model of computer. assessment procedures. Therefore, the in the future, the Department believes Since the issuance of the proposed Department has concluded that a that the current level of guidance is rule, the NRDAM/CME has been moved traditional uncertainty analysis is not adequate to allow non-expert users to to a 32-bit FORTRAN compiler. This needed. operate the model correctly. move allowed the Department to Comment: Several commenters Comment: Some of the independent subdivide the habitat grids by a factor of thought the scope and complexity of the technical reviewers questioned why the four and increase the number of proposed NRDAM/GLE and NRDAM/ user interface was not consistent with computational particles used to CME were too great. A few commenters Windows software. represent spilled material and biota. thought the models were so complex Response: The Department chose to These changes should improve the and difficult to use that operating them develop the user interface as a stand- accuracy of the model. The area Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20575 modeled in the NRDAM/GLE is much Department acknowledges that the type Response: The ultimate purpose of all smaller than that modeled in the A models do not address all potential the calculations made by the type A NRDAM/CME. Therefore, the losses and injuries that might result models is the determination of a reliable Department concluded that these from a release and that, in some cases, damage figure. Therefore, while changes were not needed in the losses not included in the models may reviewing the comments and deciding NRDAM/GLE to increase speed or be significant. The Department further which changes to make to the models, accuracy. acknowledges that Ohio v. Interior and the Department has focused on whether Comment: One of the independent Colorado v. Interior instructed the the suggested changes would technical reviewers stated that when he Department to allow for the recovery of significantly improve the reliability of attempted to replicate test runs on the all reliably calculated values. The issue, the final damage figure. proposed NRDAM/CME he obtained then, is reliability. The exclusion of Comment: One commenter suggested different results. certain categories of injury and loss that trustees be allowed to use Response: Users will obtain identical from the models was based on the simplified procedures developed by results if, but only if, they use identical Department’s evaluation of whether States and receive a rebuttable inputs. The Department designed the there was adequate reliable information presumption under the CERCLA type A models so that they will produce to support their inclusion. regulations. Another commenter identical results, regardless of the make For example, the Department has requested that the Department develop or model of PC used, if the user- considered the comments suggesting the compensation tables for commonly supplied inputs are identical. To addition of nonuse losses, but continues released hazardous substances. accomplish this result, the Department to believe that the addition of such Response: Some simplified State or built a table of random numbers into the values is not feasible at this time. As tribal procedures may well be models’ code rather than have the discussed in the proposed NRDAM/ appropriate for use under CERCLA. models use the random number CME technical document, most studies However, only a handful of coastal generating features of the of nonuse values do not report marginal States have developed such procedures. microprocessor. nonuse values that would be required Further, these State procedures have Comment: Several commenters, for the type A models as they are been developed under State laws, which including some of the independent presently designed. See Section 8.5.2, may establish somewhat different technical reviewers, suggested that the Volume I of the proposed NRDAM/CME objectives and standards than CERCLA. Department include additional technical document. Furthermore, these The Department believes it would need categories of damages in the type A studies have tended to focus on the to evaluate carefully any particular State models. Commenters recommended that nonuse values of threatened or or tribal procedure to determine its the Department add the following losses endangered species. As a consequence, consistency with CERCLA’s regulatory to the models: sublethal biological the bulk of available studies are not mandate before allowing it to be used effects; chronic biological effects; directly applicable to the estimation of and accorded a rebuttable presumption wetland losses; nonuse losses (i.e., nonuse values that would be lost as a under these regulations. Therefore, the economic values that are not dependent result of the small spills addressed by Department decided it was more on use of a resource, such as the value the type A models. appropriate to develop its own of knowing a resource exists); de facto Furthermore, the final rule explicitly simplified procedures for the coastal beach, boating, and fisheries closures; provides that where trustees expect and marine and Great Lakes reductions in the quality of boating and losses that are not addressed by the environments. beach recreation in the absence of models, they may consider using type B The primary advantage of closures; reductions in the quality of procedures in addition to a type A compensation tables appears to be their recreational fishing unrelated to procedure, provided that type B ease of use. The Department believes mortality or closures; and ecosystem procedures are cost-effective, can be that the NRDAM/CME and NRDAM/ functional losses such as reductions in performed at a reasonable cost, and do GLE are simple enough to operate that filtration, mineral recycling, and not result in double recovery. The compensation tables are not necessary. decomposition. These commenters Department recognizes that type B Further, the Department believes that expressed concern that if the models are procedures are likely to be significantly the models will provide a level of site- not expanded to cover additional losses, more costly than type A procedures and, specific accuracy beyond that which a then type A assessments will in some cases, trustees may not be able compensation table could offer. consistently underestimate damages. to perform type B procedures and still Although the Department has decided They noted that Ohio v. Interior and satisfy the rule’s reasonable cost not to incorporate compensation tables Colorado v. Interior instructed the standard. Nevertheless, the Department or simplified State or tribal procedures Department to allow for the recovery of does not believe that the cost of in this rulemaking, the Department has all reliably calculated losses. performing type B procedures justifies begun to evaluate the need for, and Commenters also thought that, in light the inclusion in the models of losses for feasibility of, additional type A of the cost of type B procedures, it was which there is an inadequate basis to procedures. See 60 FR 24604 (May 9, disingenuous of the Department to state determine damages. During future 1995). The Department will further that trustees could simply use type B biennial reviews, the Department will consider the use of simplified State procedures to calculate damages for reevaluate whether additional procedures and the development of losses not included in the models. information has become available that compensation tables in that context. Response: The Department has supports expansion of the categories of attempted to include in the models all losses and injuries included in the B. Technical Documents categories of loss and injury for which models. Comment: Some commenters stated adequate, reliable information exists in Comment: One of the independent that the Department had failed to a format that enables the calculation of technical reviewers stated that provide adequate documentation damages for the wide range of additional detail should only be added explaining how the proposed models substances, resources, and geographic to the models if it influences the final operated and why the Department made areas covered by the models. The damage figure. the choices it did when developing 20576 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations different components of the proposed as complex as the NRDAM/CME and technical documents now starts with a models. One commenter stated that the NRDAM/GLE some reviewers will list of the assumptions relevant to that scope and complexity of the models always want more information on submodel. were too great and suggested that a specific elements while others will be C. Selection of Assessment Procedures revised program be developed and overwhelmed as the documentation accompanied by a simplified synopsis becomes more extensive. Although the Comment: The Department received of the technical assumptions and Department never deliberately omitted numerous comments on the proposed formulas presented in a format more any discussion it thought would be of conditions for use of the type A models. amenable to comment. Commenters interest to reviewers, the Department The proposed rules identified a set of cited case law requiring agencies to did recognize that providing too much primary conditions and a set of provide a complete explanation and information can be just as problematic secondary conditions. Under the defense of models used in the as providing too little. The Department proposed rules, if any primary condition development of regulations. The has tried to be sensitive to the risk that were not met, trustees would not have commenters noted that the Department’s important information can become been allowed to use the type A obligation to provide a full discussion of buried in a mountain of detail. procedure. If all primary and all the type A models was even greater The Department extended the public secondary conditions were met, trustees because the models are used to comment period on the proposed would have been required to use the determine monetary liability of NRDAM/CME once and on the proposed type A procedure for all damages. If all particular parties. NRDAM/GLE twice. The total comment primary conditions but only some Response: The Department periods were seven months for the secondary conditions were met, trustees acknowledges its duty to provide an proposed NRDAM/CME and eleven could have used a combination of type adequate explanation and justification months for the proposed NRDAM/GLE. A and type B procedures. of the models and to provide the public Those reviewers left with questions after Some commenters thought the with a meaningful opportunity to reviewing the models and technical proposed rules were overly prescriptive review and comment on the proposed documents were free to contact in dictating which type of assessment models. The Department believes it has Departmental staff at any time during procedures trustees may use. These fulfilled this duty. the comment period. commenters argued that trustees should The proposed models were Finally, the Department has provided have greater discretion to determine accompanied by lengthy and detailed additional discussion of specific model which procedures, type A, type B, or a technical documents describing the aspects in the final versions of the combination, are appropriate in a content, workings, and development of NRDAM/CME and NRDAM/GLE particular case. Commenters expressed the models. The proposed NRDAM/ technical documents and in this concern that the conditions regarding CME technical document exceeded preamble as a result of specific public use of the type A procedures were 2,400 pages in length; the proposed comments. vaguely defined and would invite NRDAM/GLE technical document was Comment: Several commenters, confrontation and litigation if they were almost 1,500 pages in length. Also, the including some of the independent imposed as requirements. These preambles to the proposed rules technical reviewers, said that the commenters supported expansion of the provided a roadmap to the technical technical documents were either authority to use type A and type B documents, highlighting areas of unclear or difficult to use. Others noted procedures in combination, but thought potential concern and identifying where confusing table captions and headings, the proposed rules still did not provide various issues were discussed in the inconsistencies, incorrect citations, and adequate flexibility. These commenters technical documents. The Department typographical errors. One commenter also stated that the type A procedures made the proposed models and suggested that major assumptions for were particularly useful when used with technical documents available on each submodel be placed in bold print selective site-specific studies of impacts diskette free of charge to anyone who at the beginning of each section. One not addressed in the type A models. requested them. commenter recommended that the Other commenters, including one of To assist commenters in reviewing the technical documents be amended to the independent technical reviewers, models, the Department equipped the give examples of when the models thought that the proposed rules gave proposed models with a user interface might underestimate or overestimate trustees too much discretion in selecting that included pull-down menus, ‘‘help’’ damages. assessment procedures. Some of these screens, and graphic displays of the Response: The Department has commenters thought that the conditions physical environments and user- reviewed and revised the NRDAM/CME regarding use of the type A procedures generated runs of the physical fates and NRDAM/GLE technical documents should be clearer and stricter. One of submodel. The Department also to further clarify algorithms, the independent technical reviewers incorporated pertinent calculations from assumptions, and data sources. The suggested that the Department the physical fates, biological effects, Department has also checked the recharacterize the assumptions made by restoration, and compensable value documents for consistency, particularly the models as limits of applicability. submodels into the printed model with regard to terminology and has One commenter argued that trustees be output to enable reviewers to evaluate fixed the noted typographical errors and required to use a type A procedure the reliability of the models for incorrect citations. Section 1, Volume I unless they provide scientific incident-specific model applications. of the NRDAM/CME and NRDAM/GLE justification for using type B The Department notes that the goal of technical documents now more clearly procedures. On the other hand, some developing models that calculate identifies all the major assumptions of commenters expressed concern that the compensatory damages for spills which trustees should be aware when proposed rules would allow excessive throughout the Great Lakes and coastal deciding whether to use the models and use of the type A procedures and and marine environments has describes the likely results if the suggested making the primary necessitated a relatively high level of assumptions are not reasonable in a conditions more restrictive. complexity in modeling. The particular case. Further, the discussion Several commenters objected to the Department recognizes that with models of each submodel in Volume I of the proposed provision allowing combined Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20577 use of type A and type B procedures. in the first category is not reasonable in warranted in light of the degree of The commenters argued that Congress the particular case. If an assumption in additional precision and accuracy that intended the type A and type B the second category is not reasonable in such procedures will provide. procedures to be mutually exclusive. a particular case, it may be appropriate The issue of the legal permissibility of These commenters also thought that for trustees to use type B procedures to allowing trustees to use both type A and combined use of type A and type B ensure that the public receives full type B procedures for the same release procedures would pose significant risks compensation for its losses. However, is one that the Department decided and of double recovery of damages and that the Department believes trustees in resolved in 1987 and is beyond the the proposed rules failed to provide any those cases should have the option of scope of this rulemaking. Today’s final guidance on how to prevent such using the type A models when the costs rule merely expands the use of double recovery. One commenter stated of type B procedures are not reasonable. supplemental type B studies beyond that combined use of type A and type The appropriateness of the models in resources not addressed by the type A B procedures was inconsistent with the these cases will depend on site-specific procedure to include compensable ‘‘average’’ values justification for factors. The Department has concluded values and injuries of a type not simplified procedures, since type B that it is more appropriate to allow addressed by the type A procedure. procedures would be used to offset type trustees to analyze these factors in the The Department acknowledges that A underestimates without any context of a particular case than to combined use of type A and type B corresponding offset of type A establish inflexible, overly rigid procedures can, in some instances, pose overestimates. Another commenter standards. potential double counting problems. expressed concern that if allowed to Therefore, the Department has However, trustees should not be forced supplement type A assessments, identified all the major model to choose between forgoing trustees would spend enormous sums assumptions and for each one compensation for a public loss not assessing nonuse values for small determined into which of the two addressed by the type A model on the releases even though such releases are categories they fall. Those assumptions one hand and funding a full-scale, time- unlikely to produce any meaningful in the first category are identified in consuming, labor-intensive type B nonuse losses. Some commenters stated § 11.34 of the final rule as conditions assessment of all injuries on the other that if the final rule allowed use of type that must be met if trustees intend to hand. Instead, the potential problems B procedures to supplement a type A use the NRDAM/CME or NRDAM/GLE with combined use of type A and type assessment, then such use should be and obtain a rebuttable presumption. B procedures should be addressed limited to resources not included in the These assumptions include most of the through limitations designed to protect type A procedure. primary conditions in the proposed against double recovery. Response: The type A models are rules. The final rule provides that trustees powerful tools for completing The Department has identified the who use a type A procedure may assessments and beginning restoration assumptions in the second category and perform additional type B studies only as quickly and cost-effectively as listed them, along with the other for injuries or compensable values of a possible. The Department has sought to assumptions, in Section 1, Volume I of type not addressed by the type A balance the utility of making these tools the NRDAM/CME and NRDAM/GLE procedure. The secondary conditions in available in the widest possible range of technical documents. These the proposed rules have been recast to cases against the potential dangers that assumptions include many of the identify explicitly the injuries and they may produce unreliable results secondary conditions in the proposed compensable values that are addressed when stretched beyond their limits or rule. Section 11.35(a) provides that if in the type A models and, therefore, that they may result in double recovery the conditions for use of a type A may not be supplemented with type B when inappropriately combined with procedure are met, the trustee must procedures. type B procedures. decide whether to use that procedure or Given the vast range of potential The Department has carefully use type B procedures by weighing the scenarios, it is infeasible to develop a reexamined both the proposed difficulty of collecting site-specific data single, uniform formula for preventing conditions regarding use of the models against the suitability of these double recovery. Instead, § 11.15(d) of as well as the additional major additional assumptions as well as of the the existing regulations prohibits double simplifying assumptions incorporated averaged data described in Volumes III recovery of damages. Also, § 11.36(a)(2) into the models and described in the through IV of the NRDAM/CME of today’s final rule provides that technical documents. The Department technical document, and in Volume III trustees may only perform supplemental has concluded that the conditions for of the NRDAM/GLE technical type B procedures if such procedures use of the models should recognize two document. will not result in double recovery. different categories of assumptions built The Department has eliminated the Further, § 11.36(c) requires trustees to into the models. The first category proposed provision that would have provide an explanation in the encompasses those assumptions that required trustees to use a type A Assessment Plan of how they intend to could result in significant overestimates procedure in some cases. That avoid any double recovery in the case of of damages if they are not reasonable in requirement was originally motivated combined use of type A and type B a particular case. The second category out of concern over potential misuse of procedures. PRPs and the public will encompasses those assumptions that are unnecessarily expensive and time- have an opportunity to review the not likely to result in significant consuming type B procedures. 59 FR at trustees’ strategy for preventing double overestimates of damages if they are not 40322. Although the models are cost- recovery when the Assessment Plan is reasonable in a particular case and that effective, reliable tools where made available for public comment. may well result in underestimates. applicable, the Department has The Department agrees with the The Department believes it is concluded that trustees should not be comment that the type A procedures can inappropriate to grant a rebuttable prevented from conducting site-specific be particularly useful when combined presumption to an assessment work if they can do so at a reasonable with selective studies of impacts not performed using the NRDAM/CME or cost and if the additional costs of addressed by the models. The NRDAM/GLE if one of the assumptions performing type B procedures are Department would like to ensure that 20578 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations where combined use of type A and type damages for the geographic area in are beyond the scope of the trustee’s B procedures is warranted, trustees are which those habitats are located. If a jurisdiction. freed from conducting duplicative trustee were to use one of the models Also, § 11.44(e) provides that if a assessment procedures. Therefore, the and then conduct supplemental type B trustee is aware of reliable evidence that Department has modified the final rule studies of such a habitat, the trustees a type A application covers resources to clarify that when using type B would need to adjust the type A damage beyond his or her trustee jurisdiction, procedures for compensable values that figure to eliminate any damages the trustee must either: (1) Have the are not included in a type A procedure, calculated for the area over which the other trustees who do have jurisdiction but that result from injuries addressed habitat is located. The Department has over those resources join in the type A by the type A procedure, trustees need concluded that in the context of a assessment; or (2) eliminate any not conduct injury determination and simplified assessment, trustees who damages for those resources from the quantification all over again using type wish to obtain a rebuttable presumption claim for damages. B procedures. Instead, trustees may rely should be limited to conducting type B Furthermore, the Department strongly on the injury projections of the type A studies for the purposes of addressing encourages trustees to work together to model and simply use one of the type additional injuries and compensable ensure that natural resource damage B valuation methodologies authorized values that are not included in the assessments remain focused on restoring by § 11.83 (a) and (c) to compute model rather than substituting for the injured resources rather than compensable value. damages already calculated by the debating over which trustee has With regard to the concern about model. jurisdiction over them. As noted by unwarranted type B studies of nonuse Comment: A number of commenters some of the commenters, § 11.32(a)(1) of values, aside from the implausibility of thought that trustees should be the existing regulations requires a the scenario suggested by the prohibited from using type A trustee to notify all other interested commenter, the Department notes that procedures unless all interested trustees trustees before beginning an assessment calculation of nonuse values using type agree to a single joint assessment. These and encourages all trustees to cooperate and coordinate. Also, § 11.15(d) of the B procedures is under examination in a commenters stated that such a provision existing regulations prohibits double separate rulemaking. See 59 FR 23097 was necessary to avoid the problems of (May 4, 1994). Therefore, this recovery of damages. double recovery and improper The issue of inter-trustee coordination rulemaking need not address this issue. allocation of damages among trustees. Finally, the Department believes it is extends beyond this rulemaking to the These commenters thought that these appropriate to revise the existing rule to overall administrative process for problems were more significant for type allow supplemental use of type B conducting all assessments. The A assessments than for type B procedures beyond resources not potential for overlapping claims exists assessments because the type A models addressed in the type A models. The whenever trustees conduct separate provide less detail than type B public can experience significant and assessments, regardless of whether type procedures on the type and location of distinct losses associated with the same A or type B procedures are used. The resource. Ohio v. Interior emphasized injured resources and the damages Department has initiated a biennial that the regulations should allow for the associated with those resources. review of the administrative process for recovery of all reliably calculated lost Response: The Department conducting assessments. The values. 432 F.2d at 464. The Department acknowledges that the type A models Department will be further examining sees no reason to impose an arbitrary pose a unique problem when trustees do the issue of inter-trustee coordination distinction between losses associated not act jointly. The type A models during that review. 59 FR at 52752. with different resources and losses generate a total damage figure for all Comment: A few commenters stated associated with the same resource so affected resources. Therefore, if a trustee that PRPs should be ensured a long as there is no double recovery. acts independently and applies a type A meaningful opportunity to participate in Comment: One commenter suggested model, the total damage figure generated the selection of assessment procedures. that trustees be allowed to use by the model might include damages for These commenters requested that PRPs supplemental type B procedures to resources that are not under that be given a chance to review trustees’ determine damages for habitats that are trustee’s jurisdiction. assumptions and reasoning. not accurately represented in the To address this problem, § 11.42 now Commenters also expressed support for models. requires a trustee to perform a cooperative trustee-PRP assessments. Response: In cases where the models preliminary application of the model Response: The Department agrees that assign an incorrect habitat designation before making the draft Assessment Plan PRPs should have an opportunity to for a specific area, trustees have the available for public review and participate in selection of assessment ability to correct that designation and comment. The trustee must include a procedures. Section 11.32(a)(2)(iii)(A) of would not need to conduct summary of the model application in the existing regulations already requires supplemental type B studies. In cases the draft Assessment Plan and make trustees to invite PRPs to participate in where releases affect habitats beyond available a copy of the model output. the development of the type and scope the models’ level of spatial detail, The output of the model does in fact of the assessment as well as the trustees may perform supplemental type identify the type and location of injured performance of the assessment B studies so long as such studies do not resources. Section 11.31(a)(2) of the procedures. Today’s final rule does not address injuries or compensable values existing regulations requires trustees to change that requirement. Section in the categories listed in § 11.36(b) of include in the Assessment Plan a 11.32(c) requires trustees to make their the final rule. The Department does not statement of authority for asserting Assessment Plans available for public believe it is appropriate to expand this trusteeship for those resources review and comment. The proposed rule authority to conduct supplemental type addressed in the Plan. Therefore, PRPs required trustees to include in their B studies and still obtain a rebuttable and other interested members of the Assessment Plans documentation of presumption. When such small habitats public will have an opportunity to their decision whether to use a type A are affected, the models will comment on whether any of the injured procedure, type B procedures, or both. nonetheless determine injury and resources identified in the model output Section 11.31(b) of today’s final rule Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20579 now makes more explicit the trustees’ biomass for a particular habitat. Even the models only if the release is a single duty to provide a detailed explanation with correct habitat designation, edited event. These commenters expressed of their rationale for using a type A or through the built-in designation, the concern that in the absence of such a procedure, type B procedures, or both. models may not reflect small habitats or requirement, trustees could use a type A Also, § 11.35(d) now clarifies that populations with densities that differ procedure to assess one release in a trustees may change their decisions from the seasonal average. multi-release incident and use type B about the types of procedures they use The Department acknowledges the procedures to assess the other releases. based on public comments. confusion generated by the term The commenters thought that such a Comment: Many commenters ‘‘reasonably represented.’’ The term was practice would result in double addressed specific proposed conditions not intended to require trustees to counting because some of the injuries for use of the models. Some commenters conduct field surveys to collect baseline predicted for one release would already questioned the condition regarding data. Instead, it was designed to address be accounted for in the assessment of whether the data in the models cases where information already existed another release. These commenters also reasonably represented the spatial and about baseline conditions and such pre- thought that the rule should be temporal distribution of affected existing information differed rewritten to clarify that the type A biological resources. One commenter significantly from the data in the model. models can be applied only to releases suggested that this condition was Section 11.34(e) now simply provides of a single substance. The commenters inconsistent with the habitat editor. that a trustee may not use the models if noted that without this change, similar Another commenter requested he or she is aware of reliable evidence double counting problems could arise clarification of the term ‘‘reasonably that, for species expected to represent a from multiple applications of the represented.’’ This commenter significant portion of the claim, the models. expressed concern that the condition species biomass is significantly lower Response: The Department has seemed to require trustees to collect than the species biomass assigned by concluded that the model assumption baseline data, which would defeat the the models. that the release is a single event need intent of requiring minimal field Comment: A few commenters noted not be made a condition for use of the observation in type A procedures. that the models may significantly models. Instead, Section 1, Volume I of Response: The Department has underestimate damages when the the technical documents notes that the reexamined this proposed condition released substance causes chronic or models assume that each spill is an regarding use of the models. The sublethal effects, when sensitive independent, short-term event. condition addressed two different habitats or life stages are affected, when Section 11.15(d) of the existing model assumptions. First, the condition animals aggregate for feeding or regulations already prohibits double addressed the assumption that the reproduction, or when long-term effects, recovery of damages. In the case of a release did not affect any small but such as reproductive impairment or multi-release incident, if trustees choose important environments beyond the changes in food web structure, are to use a type A model for one release level of spatial detail of the model. expected. and then conduct type B studies for the Second, the condition addressed the Response: The Department other releases, they will be required to assumption that species biomass is acknowledges that the type A models ensure that the type B procedures do not averaged spatially and temporally. The may not accurately calculate total result in double recovery. The Department has concluded that if the damages in the situations identified by Department acknowledges that in some first assumption is not reasonable in a the commenters. However, the cases it may be difficult for trustees to particular case, then the model will Department has included provisions in satisfy this requirement. However, the most likely underestimate, rather than the final rule to address these situations. Department believes that in those multi- overestimate, damages. Therefore, the Section 11.35(a) provides that if a type release cases where trustees can tailor Department has eliminated this A procedure is applicable, trustees must their type B studies to address only the assumption from the conditions for use determine whether to use type A or type effects of the releases not assessed by listed in § 11.34 of the final rule. B procedures based on an evaluation of the type A model, they should have the Instead, the Department has identified the model assumptions listed in Section opportunity to do so. the assumption in the NRDAM/CME 1, Volume I of the NRDAM/CME and With regard to releases of multiple and NRDAM/GLE technical documents NRDAM/GLE technical documents. One substances, the rule now provides that as one of the factors for trustees to of the listed assumptions is that there trustees must select and assess only one consider when deciding whether to use are no affected environments beyond of the substances that was released. See type A or type B procedures, once they the spatial detail of the models. This Appendices II and III. This requirement have established that the conditions set assumption will alert trustees to the will eliminate double counting forth in § 11.34 are met. See Section 1, potential for underestimating damages problems. In fact, toxicity of mixtures Volume I of the NRDAM/CME and where sensitive habitats are affected. has been found to be additive or NRDAM/GLE technical documents. The Another listed assumption is that synergistic in aquatic environments for Department has clarified the second species biomass is averaged spatially a wide variety of substances. See assumption, concerning species and temporally. This assumption will Section 4, Volume I of the NRDAM/ biomass, and included it in § 11.34 as a alert trustees to the potential for CME technical document. Thus, this condition that must be met if trustees underestimating damages when animals requirement may actually result in intend to use the models and obtain a aggregate. Finally, the rule explicitly underestimates of damages. However, rebuttable presumption. identifies the injuries addressed by the the Department believes that in cases of The habitat editor does not conflict type A models; therefore, trustees will mixtures when the cost of using type B with either of these assumptions. The have notice that they will need to procedures is not reasonable, trustees final rule allows trustees to change the perform supplemental type B should have the option of using a type habitat designation for an entire existing procedures if they wish to address A procedure rather than forgoing all grid cell. However, the rule does not chronic or sublethal biological injuries. compensation. allow trustees to redraw the boundaries Comment: Some commenters thought Comment: A few commenters of the grid cells or modify the species that trustees should be allowed to use addressed the use of the models for 20580 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations substances not specifically identified in models will start their simulations at the intended the type A procedures as a tool the database. Some commenters point that the released substance enters for obtaining a rebuttable presumption supported giving trustees flexibility to water within a geographic region in cases of minor releases. Thus, the use the models for such substances represented in the models. The only Department included a provision in the provided that they identified a proxy potential problem is that the models proposed rules that prohibited trustees that was included in the database and will not account for the effects produced from using the models to obtain a documented the reasons why the use of before the release entered the model rebuttable presumption unless the that proxy was appropriate. Other boundaries, a consideration that may release was minor. The proposed rule commenters expressed concern that support use of type B procedures in provided no definition of ‘‘minor,’’ and allowing use of proxies would add a some cases. However, the Department the Department indicated in the significant range of discretion given the believes trustees should have the option preamble to the proposed rules that it number of different physical and of using the models to assess such had been unable to develop a uniform chemical attributes that must be releases when the cost of performing standard for all substances and areas considered when identifying a proxy. type B procedures to develop a more encompassed by the models. See 59 FR Some commenters, including one of the complete damage figure is not at 40330 and 63313. However, after independent technical reviewers, reasonable. reviewing the comments, the suggested that the Department expand Therefore, the rule allows trustees to Department has concluded that given the oil database. use the models for releases that occur the significance of this term and the fact Response: The Department has outside the boundaries of the models so that type A procedures were intended as concluded that allowing the use of long as the user-supplied inputs simplified procedures requiring limited proxies for hazardous substances appropriately reflect conditions at the analysis by trustees, it is appropriate to without significant guidance on point that the substance entered such provide clear guidance. selection of such proxies would raise waters rather than the point of the The Department evaluated a number serious concerns about the uniformity original release. Appendices II and III of different approaches to defining and reliability of the type A model specify that when using the models for ‘‘minor.’’ First, the Department results. Moreover, developing guidance releases that originate on land or outside reviewed the language and legislative on selection of proxies would be the model databases, trustees must history of CERCLA. The Senate Report impractical given the extremely wide adjust the data inputs. that accompanied the predecessor bill to range of hazardous substances and the Comment: One commenter said that CERCLA states: diversity of their relevant attributes. the definition of ‘‘minor’’ was vague, but [A] simplified type of regulation is Therefore, for chemical releases, supported the Department’s discussion necessary to effectively deal with damage trustees may only use the models if the of it and the proposal to allow trustees assessment in most ‘‘minor’’ releases of released material is one of the specific discretion to define ‘‘minor’’ on a case- hazardous materials * * *. The other type of chemicals listed in the database. by-case basis. Other commenters, regulations [type B] would be employed in As discussed in Section I.C. of this including one of the independent large or unusually damaging releases and preamble, use of the models for oil technical reviewers, thought that the would be used to guide the site-specific discharges is governed by NOAA’s OPA Department should define ‘‘minor.’’ One damage assessment. S. Rep. No. 96–848 at 86. rule rather than by today’s final rule. commenter suggested that the rule However, nothing in the legislative However, the Department notes that it require trustees to justify their history indicates what Congress meant has expanded the database to include 33 determination of whether a release is by ‘‘minor.’’ types of oils that cover a broad range of minor with scientific documentation. Next, the Department considered chemical and physical characteristics. Another comment recommended the basing the definition on the technical Comment: Some commenters stated Department define ‘‘minor’’ based on limitations of the NRDAM/CME and the that trustees should be allowed to use spill size, prediction of affected area, or NRDAM/GLE for modeling large or the type A models and obtain a resulting damage estimates. highly toxic spills. However, sensitivity rebuttable presumption for releases that Response: In light of Congressional analyses of the models failed to reveal did not originate in, but later migrated intent to restrict use of type A any clear stages at which the model into, a coastal or marine or Great Lakes procedures to minor releases and after assumptions became invalid. environment. These commenters argued considerable analysis and deliberation, The Department then considered that the type A models could the Department has decided to impose relying upon existing standards accommodate such releases. On the a specific dollar cut-off for use of the developed in other contexts of other hand, one commenter thought that models to obtain a rebuttable environmental law. The U.S. Coast such use should not be allowed because presumption. The final rule provides Guard has developed a volume-based there are no data on conditions outside that if the model output indicates system for classifying oil spills for the boundaries of the type A models. damages in excess of $100,000, then purposes of spill response. See 40 CFR Response: The Department has trustees who wish to obtain a rebuttable 300.5 (minor discharge of oil is one of concluded that the type A models can presumption must either: (1) limit the less than 1,000 gallons to inland waters produce reliable damage figures for portion of their claim calculated with or 10,000 gallons to coastal waters). The releases that do not originate in, but do the type A procedure to $100,000; or (2) U.S. Environmental Protection Agency migrate within, the boundaries of the compute all damages using type B (EPA) is responsible for developing a models provided that the user supplies procedures. The Department believes parallel rating system for hazardous appropriate data inputs. So long as the this provision establishes an appropriate substance spill response. While EPA has user supplies data inputs that reflect standard of fairness for allowing trustees developed a qualitative system, this conditions at the point that the to receive a rebuttable presumption for system does not provide the type of substance enters the model boundaries, damages calculated by the NRDAM/ clear, quantitative limits that the the models are just as capable of CME or NRDAM/GLE given the current Department believes are needed in this computing reliable damages as they level of experience with these models. context. See 40 CFR 300.5 (minor would be if the release had actually The language and legislative history release of hazardous substance is one started at that point. In such cases, the of CERCLA indicate that Congress that poses minimal threat to public Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20581 health or welfare of the U.S. or the the applicability of the NRDAM/CME in of causation when type A procedures, as environment). some circumstances but notes that it opposed to type B procedures, are used. Next, the Department considered does not render the model inapplicable Several commenters observed that basing a definition of minor on the point to all locations where subsurface CERCLA calls for type A procedures at which type B procedures can no currents are not uniform. The models that involve ‘‘minimal’’ rather than ‘‘no’’ longer be performed at a reasonable use vertically averaged currents and field observation. The commenters cost. However, because trustees have assume that the speed and direction of thought that the Department was rarely pursued damage claims for horizontal transport is uniform over engaging in sheer speculation when it smaller spills, the Department was depth at a specific latitude and asserted in the August 8, 1994, notice of unable to develop reliable estimates of longitude. The models do include proposed rulemaking that requiring the cost of conducting type B randomized motion in the vertical confirmation of injury in type A procedures in such cases. dimension, but not directed motion. The assessments would be unduly Therefore, the Department was left to vertically averaged current is essentially burdensome. Finally, the commenters make this policy decision about the a current that provides the correct net stated that none of the steps that upper limit on applicability of type A transport averaged vertically. If the trustees must take before applying a procedures without the benefit of clear transport of the released substance type A model, including the empirical standards or legal precedents. cannot be reasonably represented by a Preassessment Screen Determination, The Department has chosen to base this vertically averaged current, then the satisfy the required standard of limit on its sense of when it is no longer NRDAM/CME’s projections may not be causation. ‘‘fair’’ to allow trustees to obtain a reliable. For example, substances with Response: The type A models do not rebuttable presumption using the high densities, such as sulfuric acid, ‘‘assume’’ that injury occurs. Using both NRDAM/CME or NRDAM/GLE as may sink rapidly through the water the information provided by the trustees opposed to performing type B column so that the principal mass is and the biological and environmental procedures. The Department believes transported in the direction of the information about the spill site that, given the current level of subsurface current. However, in many contained in the model databases, the experience with these models, $100,000 cases, such as when a substance remains models perform millions of calculations represents a reasonable cut-off for their at or near the surface or sinks slowly, to determine whether or not the release use. As more experience is gained with subsurface currents will not affect the has caused an injury. The models these models, the Department will fate of the spilled substance. In these project the distribution of the released reconsider this cut-off in future biennial cases the model can reliably predict substance over space and time, track the reviews. Further, because this regulatory damages. Therefore, the rule allows changing toxicity of the substance over cut-off is based on considerations of trustees to use the NRDAM/CME, even that space and time, and simulate the fairness rather than the inherent if subsurface currents are not uniform, movements of biota throughout the area reliability of the models, the Department so long as they are not expected to around the release. The models only wishes to emphasize that although use significantly affect the level and extent conclude that injury has occurred if of the models to calculate damages of injuries. biota are exposed to the released above $100,000 is not entitled to a substance at concentrations and rebuttable presumption, such use may D. User-Supplied Information durations that exceed acute toxicity nonetheless be appropriate in other Comment: Several commenters thresholds. If such thresholds have not contexts, such as settlement suggested changes to the proposed been exceeded, the models conclude negotiations or litigation without the models and rules that would require that there has been no injury. The benefit of the rebuttable presumption. trustees to confirm injury. These models can and have projected that no Finally, the Department recognizes commenters asserted that the proposed injury resulted from particular releases. that in some instances the models may models merely assume injury and that In such cases, the models determine that project damages in excess of $100,000, the proposed rules inappropriately damages equal zero. yet it may not be reasonable to perform failed to require field verification of this The issue is not whether the type B procedures. The Department assumption. The commenters noted that Department is attempting to excuse believes that trustees should be allowed CERCLA limits recovery to damages that trustees from their legal requirement to the option of claiming damages up to ‘‘result from’’ a release. These prove causation; the Department agrees $100,000 in such cases instead of commenters argued that this limitation that trustees must demonstrate that forgoing all compensation. Therefore, requires that trustees conduct field injury resulted from a release. Rather, the Department has eliminated the studies that prove that an injury actually the issue is whether trustees should be proposed rule condition that type A occurred and that it was caused by the allowed to use the type A models to procedures only be used for minor release in question. make that demonstration. The releases and instead imposed a cap on A number of commenters thought that Department believes that it is the level of damages that trustees can Congress intended traditional tort law appropriate to allow trustees to use a claim through use of a type A procedure standards of causation to apply to type A model to demonstrate injury and still obtain a rebuttable natural resource damage cases and cited without on-site verification of the model presumption. case law in support of this position. projections. Comment: Several commenters Some commenters noted that Ohio v. There is a tension between the thought that the proposed condition Interior rejected a challenge to the statutory provision requiring trustees to requiring uniform subsurface currents Department’s strict acceptance criteria demonstrate that injury ‘‘resulted from’’ would render the NRDAM/CME for determining injury under the type B a release and the provision requiring the inapplicable to all spills in procedures and upheld the development of simplified assessment Massachusetts, New Hampshire, and Department’s interpretation that procedures that involve ‘‘minimal field Maine. CERCLA adopted traditional causation observation.’’ As noted in the cases Response: The Department standards. 880 F.2d at 471. The cited by commenters, the requirement acknowledges that the condition commenters stated that CERCLA does that trustees demonstrate that injury regarding subsurface currents may limit not create a different standard of proof resulted from the release indicates that 20582 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

Congress intended that natural resource interprets ‘‘minimal field observations’’ procedures, and the Department damage liability be compensatory. PRPs to be information that is readily or believes that in light of the statutory are to be held liable not just because routinely collected following a release. description of type A procedures, they are responsible for a release but The Department rejects the argument different standards are warranted. In because they are responsible for a that the language of CERCLA requires fact, as discussed above, the legislative release that caused an adverse effect. On on-site verification of causation, since history of CERCLA suggests that the the other hand, by requiring the observations would often be inadequate Department would have been justified development of type A procedures, to determine causation. For example, in developing a look-up table or Congress recognized that assessment the released substance may sink or compensation formula as a type work can be expensive and time- disperse into the water column, Aprocedure. Instead, the type A models consuming. In the case of minor precluding visual methods for use both site-specific information releases, it is often not cost-effective or documenting pathways and exposure. provided by the trustees and biological feasible to conduct more than minimal Furthermore, the potentially exposed and environmental information about field observations. The Department has resources may be difficult and costly to the spill site contained in the databases struggled to resolve the tension between sample (e.g., endangered species, to approximate more precisely the these two statutory requirements by marine mammals, or subtidal actual effects of the release. developing type A procedures that rely organisms). In other instances, the Finally, the Department notes that the on computer models to predict actual persistence of the substance, or the final rule has been revised to require site-specific effects to the maximum remote location of the release, may trustees to perform a preliminary extent practicable but do not require on- prevent trustee scientists from reaching application of the model and make the site verification of the models’ injury the spill site in a timely manner to results available for public comment predictions. conduct assessment work. before presenting a damage claim. Although the regulations do not Moreover, today’s final rule does not Therefore, PRPs will have an require trustees to verify the injury establish a new standard for proof of opportunity to evaluate the injury projections of the type A models, they causation. The regulations did not projections. They can then decide do require trustees who use a type A require trustees to verify the injury whether they have information that model to make several determinations projections of the original NRDAM/ indicates that the projections are wrong that require field observations. Before CME. The existing regulations require and that the user inputs need to be trustees can proceed with a type A trustees to confirm exposure before modified or that type B procedures procedure, they must perform a implementing type B studies, but not should be used. Preassessment Screen Determination in type A procedures. Today’s final rule Comment: The Department received which they establish if assessment work does include language in § 11.31(c)(1) several comments on the wind inputs. is warranted. Existing § 11.23(e) requires clarifying that the confirmation of Some commenters expressed concern trustees to make a preliminary exposure requirement only applies to about the adequacy of the proposed rule determination that the following type B procedures. The original type A language allowing trustees to supply conditions have been met: rule contained the same substantive one set of wind data for a 30-day period. provision, only worded differently. See These commenters noted that wind data A release of a hazardous substance has 52 FR at 9064. This final rule simply were critical to correct functioning of occurred; Natural resources under their the models and requested that trustees trusteeship have been or are likely to have rewords and relocates the existing been adversely affected; provision. be required to supply actual hourly The quantity and concentration of the Even when trustees use type B data. One commenter noted that such released substance is sufficient to potentially procedures, there are some data are readily available from the cause injury; circumstances under which the existing National Climatic Data Center. These Data sufficient to pursue an assessment can regulations allow them to use models to commenters also thought that actual be obtained at a reasonable cost; and determine injury to surface water, wind data should be supplied for the Response actions will not sufficiently groundwater, and air. See 43 CFR entire duration of the model application remedy the injury. 11.64(b)(6), 11.64(c)(8), and 11.64 (d)(2). because of gross oversimplifications in If the trustees determine that these The existing regulations also allow the data supplied by the models when conditions are met, they must then trustees who perform type B procedures the user-supplied wind data run out. demonstrate that the released substance to use models to demonstrate that a One of the independent technical entered the water, which is the only groundwater or air pathway exists reviewers suggested that users be pathway considered by the models. between the site of the release and allowed to enter wind data in their Trustees must develop information on injured biological resources. See 43 CFR choice of units. ambient environmental conditions at 11.63(c)(5)(ii)(C) and 11.63(d)(4). Response: The Department agrees that the site of the release and on the extent Demonstration of a pathway is an one set of wind data for an entire 30-day of response actions. Also, trustees must integral part of establishing causation. period may not be adequate in all cases. evaluate whether potentially affected The Department acknowledges that Trustees are free to supply hourly wind resources are addressed by the model. the existing regulations do not explicitly data; however, the Department also The Department agrees that these allow trustees who use type B believes that requiring trustees to do so determinations in and of themselves do procedures to demonstrate biological in all cases would be onerous. not establish causation. They are not injury based on models alone. However, Therefore, the Department has modified intended to do so; causation is as Ohio v. Interior recognized, the the final rule to require trustees to demonstrated by the models. However, language and legislative history of supply data on prevailing wind these determinations do fulfill the CERCLA are ambiguous as to the conditions for each day of the 30-day standard of minimal field observations. standard of proof of causation. 880 F.2d period. Recognizing that the type A The Department notes that Congress at 470. Nothing in the statutory language procedures were intended to provide chose to use the word ‘‘observations’’ prohibits the Department from simplified procedures requiring rather than ‘‘studies,’’ ‘‘surveys,’’ or establishing different standards of proof minimal analysis by trustees, the ‘‘analyses.’’ Therefore, the Department of causation under type A and type B Department has concluded that it is Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20583 appropriate to establish a uniform time Response: The Department believes With regard to entry of data on frame for entry of wind data. Wind that the ice model contained in the removal that occurred more than 24 speed and direction are most relevant to NRDAM/CME and NRDAM/GLE hours after the initial release, the final the simulation of the surface trajectory. reasonably reflects average ice rule requires trustees to specify the time Released substances will generally only conditions. However, the Department of the removal. Therefore, even for float for a few days or weeks before they has modified the final rule to provide injuries that do occur within the first 24 sink or go ashore. Therefore, the that when trustees have reliable hours, entry of the total volume Department believes that 30 days is an evidence that ice was not present at the removed would not result in an appropriate time frame for the vast spill site, they must disable the ice underestimate of damages because the majority of releases to which the type A modeling function. models will take into consideration that models will be applied. Users are free to Comment: A few commenters the removal did not occur entirely supply more than 30 days worth of addressed the data inputs for response within the first 24 hours. The wind data if they choose but are not actions. One commenter thought that Department assumes that the required to do so. If a simulation the models should take into account the commenter’s concern is that the models continues past 30 days and the user has effects of spill prevention and will underestimate damages if they only supplied 30 days worth of data, the containment measures required under subtract the entire volume removed models will supply climatological wind OPA and other laws. Some commenters because only the removal during the data. With regard to the units of stated that trustees should only be first 24 hours would reduce the measurement for wind data, the required to supply the volume of the likelihood of acute injury. However, not Department notes that users are allowed released substance that was removed all direct effects considered by the to enter wind data measured either in during the first 24 hours after the models will occur within the first 24 knots or in meters per second. The release. These commenters noted that hours after the release. Department believes this provides users the types of acute effects considered by To address the problem identified in with appropriate flexibility. the models should have occurred within the December 1994 preamble, the Comment: Several commenters that first 24-hour period. Department has modified the final rule Some commenters thought that addressed the currents inputs to the language addressing the required data limiting the data inputs to the first 24 proposed NRDAM/CME. Some input for response actions. Appendix II hours would also alleviate the problem commenters, including a few of the now states that when developing the with the NRDAM/CME identified in the independent technical reviewers, found data input on response actions, trustees December 8, 1994, preamble. In that it difficult to enter currents data and must specify a geographic area that preamble, the Department noted that suggested that default values be made encompasses the entire surface water there may be cases where the proposed and shoreline area over which the available. On the other hand, one NRDAM/CME would not subtract the spilled substance was likely to have commenter thought that the tool for full volume removed even though users spread. This requirement should ensure supplying currents data in the proposed had provided full and accurate that the NRDAM/CME will subtract the NRDAM/CME was already too information about removal actions. This full volume of spilled material that was simplistic. One of the independent problem arose because the proposed removed during response. technical reviewers noted a ‘‘bug’’ in the model required users to specify the Comment: Numerous commenters program. location and time frame of the removal. addressed whether users should be Response: Currents have a profound The proposed model then subtracted the allowed to modify the model databases. impact on the physical fate of spilled mass removed at the time and location One commenter suggested that the substances and are highly variable. specified by the user. If the user models would be too labor-intensive if Provision by the model of a single set specified that mass was removed from a trustees were expected to edit numerous of default values for currents would location before the time that the model databases. However, most commenters adversely affect the reliability of the projected the substance would reach supported retaining the habitat editor in model. Therefore, the Department that location, then the model was the final version of the models, noting believes it is appropriate to require unable to subtract any removed mass. the prevalence of default values in the users to supply some level of site- See 59 FR at 63307–08. Another habitat database. Some commenters, specific data on currents. However, the commenter expressed concern about including one of the independent Department is also committed to this problem and suggested modifying technical reviewers, stated that the ensuring that the NRDAM/CME remain the NRDAM/CME so that in such a Department should continuously update accessible to a wide range of potential situation the volume of the released the model databases to ensure that they users and, thus, recognizes the need to substance actually removed would be reflect current information. Other avoid excessively complicated user subtracted from the nearest location commenters expressed doubt that the inputs. The Department has revised the where the model predicted that an Department could conduct such updates currents entry tool to make it easier to equivalent volume of the substance in a timely manner. These commenters use and to correct the ‘‘bug.’’ The could be found at that time. thought that model accuracy would be Department has also provided Response: The final rule and models increased if trustees were allowed to additional guidance on developing and do account for the effects of successful edit not only the habitat designations entering currents files in Volume II of spill prevention and containment but also other data such as species the NRDAM/CME technical document. measures. The models calculate biomass, baseline fishing mortality Comment: Some commenters objected damages only for the volume of rates, commercial fish prices, and to the proposed provision allowing substance that entered the water, was restoration costs. These commenters trustees to decide whether or not to not removed, and caused injury. noted that PRPs would be protected have the models consider ice cover. Therefore, any material prevented from from potential misuse of the editing These commenters stated that the rule entering the water as a result of feature by trustees because the input should require trustees to have the voluntary or mandatory spill prevention data would be subject to challenge. models consider ice cover if ice is or containment measures would not be Some commenters recommended present during or after the release. considered by the models. various mechanisms for allowing users 20584 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations to substitute more precise or up-to-date as part of pre-spill planning, which be modified to require trustees to supply site-specific information. For example, should further expedite habitat editing. the implicit price deflator for the Gross one commenter suggested creating an Once edited, the revised habitat Domestic Product (GDP) instead of that administrative process for obtaining designations may be saved within the for the Gross National Product (GNP), variances from the model parameters or models and used again for future model one commenter indicated that use of the data. applications. However, trustees who implicit price deflator for the GNP Response: The Department save such redesignations would still should be retained. Another commenter acknowledges that allowing users to need to justify those redesignations in stated that the Department should revise the models’ databases would any future Assessment Plans. change the base year from 1987 to 1992. enable fine-tuning to better reflect site- With regard to other model databases, Response: The Department has specific conditions. On the other hand, the Department believes that allowing decided to retain the GNP implicit price Congress specifically mandated the additional editing would undermine deflator as the index with which to development of type A procedures to Congress’ intent for developing type A adjust past dollar amounts to current simplify assessments and minimize procedures. Allowing other edits would dollar equivalents. Because GNP refers fieldwork. The more trustees are require users to make additional to income that is available to U.S. expected to edit the model databases, conforming changes that would residents, it is appropriate for analyses the less the type A procedures fulfill complicate use of the models. For that are related to the use of that this mandate and the closer such example, changing the fisheries biomass income, such as expenditures for procedures approach the data-gathering or parameters would require environmental restoration. GDP, on the requirements of type B procedures. recalculation of egg and larval other hand, refers to income that is Therefore, the Department has abundance using the model equations. derived from production within the decided to allow trustees to modify, Changing wildlife abundances would U.S., regardless of whether that income under some circumstances, the models’ require recalculation of lost wildlife is available to U.S. residents or accrues default values for water temperature, viewing values. to non-U.S. residents. For more total suspended sediment The final rule no longer requires use information regarding GNP and GDP, concentrations, mean settling velocity of of the type A models. Therefore, when readers are referred to the August 1991 suspended solids, air temperature, and trustees have, or are provided with, issue of the Survey of Current Business habitat type. However, trustees may not evidence that the model databases are available from the Bureau of Economic make any additional modifications to inaccurate for a specific incident, they Analysis, U.S. Department of the databases if they intend to obtain a are free to use type B procedures, Commerce. Also, the Department has rebuttable presumption. provided they can do so at a reasonable updated the index numbers in the The proposed rules included cost. When trustees or PRPs already models to accommodate the change in provisions allowing trustees to supply have site-specific information indicating base year from 1987 to 1992. site-specific values for water that model data are inaccurate, the cost Comment: One of the independent temperature, total suspended sediment and effort associated with conducting technical reviewers questioned the user concentrations, mean settling velocity of type B procedures, and in turn the need inputs to the proposed NRDAM/CME suspended solids, and air temperature. for a type A procedure, should be concerning boat closures. The technical The Department continues to believe reduced. reviewer thought that it might be that these parameters are highly variable The Department does not have the difficult for trustees to estimate the and can profoundly affect the physical resources available to support an number of boats affected by the closure. fate of released substances. Therefore, administrative process for reviewing Response: As discussed in Section trustees should be allowed to change the petitions for variances from the VII.P of this preamble, the Department default values for these parameters if computer model parameters or has eliminated the calculation of they have more accurate data. databases. However, the Department is damages for lost boating from the The Department has also concluded statutorily required to review and NRDAM/CME. that retention of the habitat editor is update the models every two years and, Comment: A few commenters appropriate given the importance of thus, will be incorporating more up-to- responded to the Department’s habitat designations to the total damage date information as it becomes solicitation of comment on whether figure and the prevalence of default available. Also, the Department notes users should be allowed to supply a habitat designations in the models. that the models already update the site-specific discount rate and, if so, Also, despite specific solicitations in compensable value and restoration cost how they should determine the correct both notices of proposed rulemaking, databases to account for inflationary rate. These commenters stated that the relatively few commenters supplied effects through application of the models should use a fixed discount rate revised habitat information to the implicit price deflator. Finally, the but that the fixed rate should be three Department and some State commenters Department notes that while the results percent rather than the seven percent specifically stated that they had been of model runs made with customized rate included in the proposed models. unable to review the habitat changes beyond those identified in the Response: The Department believes designations. rule would not receive the rebuttable that the appropriate discount rate is the The Department does not believe that presumption for damage claims made consumer’s rate of time preference for the habitat editor requires excessive under CERCLA, they may nonetheless natural resource services. This is the effort to operate. First, trustees are not be reliable and useful in other contexts, rate at which individuals are willing to required to edit habitat designations. such as settlement negotiations or trade natural resource services today for Second, while the task could be litigation without the benefit of the similar natural resource services in the substantial if a single user attempted to rebuttable presumption. future. The Department further believes edit the large regions covered by the Comment: A few commenters that the real (inflation-adjusted) rate of models, it is not so labor intensive for addressed the implicit price deflator return on U.S. Treasury bills is a the area actually affected by any single data input. In response to the reasonable proxy for this rate of time spill. The Department also notes that Department’s solicitation of comment preference. An analysis of real rates of trustees often perform habitat mapping on whether the proposed rules should return on U.S. Treasury bills reveals an Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20585 indicated annual discount rate of three do not agree with experiment results many of the physical processes that percent. Therefore, the Department reported in the literature. Several affect the size of the surface slicks. agrees with the commenters that future commenters also concluded the Response: The models do treat all lost use values should be discounted at Department inappropriately applied the chemicals that are lighter than water as a three percent rate. This discount rate same degradation rates to the nine oils ‘‘slicks.’’ However, chemicals that are has been incorporated in the models. included in the models (except for No. very soluble, such as ethanol and The Department believes that use of a 2 diesel oil). They could not ammonia, will very quickly mix into the fixed discount rate is appropriate in the substantiate the model degradation water column. Thus, chemicals that are context of a simplified procedure. rates, and concluded they were invalid. highly soluble do not remain on the Further, the Department believes it is One of the independent technical surface long enough to have any direct unlikely that the rate will change reviewers suggested that the Department effect on wildlife at the water surface. significantly over the next two years. update the parameters for oils. Some The Department disagrees that the During the biennial review, the commenters also thought that the models do not adequately account for Department will reexamine this issue. models relied on overly simplistic and the physical processes affecting surface slicks. The major processes affecting the E. Physical Fates outdated modeling techniques. Response: The Department found the size of surface slicks are spreading, Comment: Several commenters, physical and chemical parameters evaporation, and entrainment, all of including some of the independent included in the models for hazardous which are simulated in the models. For technical reviewers, thought the substances to be in agreement with further discussion, see Sections 3.3 physical fates submodel was well commenters’ independent literature through 3.5, Volume I of the NRDAM/ developed and well tested. Another search, except with regard to the CME and NRDAM/GLE technical commenter stated that the proposed partition coefficient for documents. models produced spill trajectories that epichlorohydrin. After reviewing the Comment: One commenter referred resembled actual spill events. literature, the Department has decided the Department to the Ohio spill Conversely, one commenter experienced to substitute the proposed parameter for database as an additional source of difficulty with the models’ trajectory this substance. information. component noting that, during some Response: The Department took this The Department has also increased trial runs, the spill did not move. database into consideration when the number of oils and petroleum Response: The Department determining the types of spills to use for products included in the models to a acknowledges and appreciates the the sensitivity analysis of the NRDAM/ total of 33 and has revised the physical supportive comments concerning the GLE. physical fates submodel. Physical fates and chemical parameters for oils based Comment: One commenter questioned modeling is a technical discipline that on the most recent literature. The whether the use of varying grid sizes has received extensive study. In reply to degradation rates for oils in the models makes the NRDAM/GLE less accurate the trajectory difficulty, the Department apply to acutely toxic low molecular for spills in areas of large grid size. notes that the model’s spill trajectory is weight components. Thus, they are Response: The Department designed dependent upon the user’s entry of consistent for all oils. The Department the grid sizes to represent the Great wind and current data. Spilled material reviewed the accuracy of these data and Lakes habitats at a resolution required does not move during simulations if the documented all sources in the technical by the local spatial variability. Areas user does not supply wind and current documents when revising the oil with more spatial variability have data. database. For further information, see smaller grids and higher resolution. The Comment: Several commenters, Section 2, Volume III of the NRDAM/ areas with large grid sizes are the open including some of the independent CME and NRDAM/GLE technical lakes where fine detail is not necessary. technical reviewers, were disappointed documents. Thus, the NRDAM/GLE is not less by coarse resolution of most habitat The Department does not agree that accurate in the areas where grids are grids in the NRDAM/CME. These the modeling techniques used are either largest. commenters complained that the outdated or overly simplistic. The Comment: One commenter questioned limited resolution results in the loss of Department has never intended the why the Department did not incorporate consideration of critical shoreline physical fates submodel, or any of the the U.S. Army Lake Survey grid in the habitats. other submodels, to provide a NRDAM/GLE. Response: The Department has comprehensive treatment of all known Response: Development of the improved the resolution in the NRDAM/ physical, chemical, and biological NRDAM/GLE grid required the CME by a factor of four through use of processes occurring in aquatic representation of spatially varying a new compiler and additional memory. environments, nor is such treatment habitats and depths as well as the Comment: Several commenters necessary for the limited purposes of the contours of the connecting channels claimed the proposed models used type A procedures. Instead, the within a regular rectangular grid system. inadequate and nonrepresentative data modeling techniques employed are The U.S. Army Lake Survey grid does on the physical and chemical properties intended to reasonably approximate the not consistently meet this requirement. of hazardous substances and oil and most relevant processes pertaining to Moreover, the Department has no reason provided references to additional data the fates and effects of spills that occur to believe that use of the U.S. Army sources. The commenters stated that the in aquatic environments based on Lake Survey grid would significantly chemical and physical data on gasoline readily available user input data. improve the reliability of the NRDAM/ and diesel oil, particularly the sulfur Comment: One commenter thought GLE. content in diesel oil and vapor pressures that the models overstated wildlife Comment: A few commenters, in gasoline, do not accurately represent injuries by inappropriately treating including one of the independent the products in use today. One of the chemicals less dense than water as technical reviewers, thought that the independent technical reviewers stated slicks. The commenter also stated that Department should use three- that the relative toxicities used in the the proposed models’ predictions of oil dimensional hydrodynamics models. models for No. 6, No. 2, and crude oils and chemical slicks failed to account for Several commenters thought the 20586 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations proposed type A models unrealistically surface, the present current dynamics encompass a majority of the grid cell. assumed that currents were uniform model adequately addresses physical For fringing wetlands, oiling occurs in with depth; unjustifiably failed to fates. the same manner as for other shorelines. incorporate three-dimensional currents The Department recognizes that For extensive wetlands, slicks keep modeling; and inappropriately failed to seiches occur in the Great Lakes. The moving across the area, as they do in account for the effects of wind-driven Department has not, however, included water, but they can oil wetland biota in turbulence mixing processes that such processes in the NRDAM/GLE the same way as they do in fringing increase mixing as high winds make the because these processes are not a wetlands. Oil may accumulate in water surface rough. One commenter significant transport process for sediments in all cells, by partitioning stated that a three-dimensional determining the physical fate of spilled onto suspended sediments and sinking. hydrodynamics model was needed to substance in the Great Lakes. Further, account for the effects of seiches (i.e., any change in the location of a shoreline F. Species Distribution and Abundance occasional and sudden oscillations of brought about by a seiche is likely to be Comment: Several commenters the water of lakes, bays, or estuaries small and should not have a significant thought the default habitat designations caused by wind or changes in effect on the injuries calculated by the in the NRDAM/CME generally provided barometric pressure). model. an inadequate representation of coastal Response: The NRDAM/CME and Comment: One commenter thought and marine habitats. Others NRDAM/GLE use a three-dimensional that the models should not include recommended specific changes such as transport model. The transport model liquid asphalt. The commenter noted including habitat data available in assumes that currents are uniform that liquid asphalt hardens and sinks to existing or upcoming studies. One vertically at each horizontally defined the bottom quickly, and can be commenter provided specific habitat location. If the Department did include completely removed by dredging. data for New York and New Jersey. a three-dimensional current dynamics Response: The Department agrees that Another commenter requested that the model in the NRDAM/CME and the models are not designed to estimate Department use information that would NRDAM/GLE, then users would need damages for substances such as liquid be available from the upcoming Texas the assistance of expert hydrodynamic asphalt. The models assume that oils Natural Resource Inventory. modelers to operate the type A models. and petroleum products float initially, Response: As stated in the notices of For example, three-dimensional current although they may subsequently proposed rulemaking, the Department dynamics models are dependent on entrain, adsorb to particles, and sink. recognized the shortcomings of the physical forces at the boundaries of the Liquid asphalt does not act in this default habitat designations and modeled area, which the user would be manner and, thus, has not been specifically solicited comment on those required to enter. The Department included in the databases. designations. See 59 FR at 40330 and Comment: One commenter criticized believes that imposing such complex 63314. The notices also provided modeling requirements would conflict the NRDAM/CME’s treatment of ice, technical instructions on transmitting with the statutory directive to develop stating that the model inappropriately information to the Department about simplified assessment procedures. assumes that ice is always a solid mass. suggested changes to the default habitat The models utilize vertically averaged Response: The model does not assume designations. The Department has currents with the assumption that that ice is always a solid mass. For a reviewed and revised the habitat horizontal transport is uniform in speed discussion of how the models treat ice, designations in the NRDAM/CME based and direction over depth at a given see Section 3.11, Volume I of the on technical data provided to the location in horizontal space (i.e., at a NRDAM/CME and NRDAM/GLE Department for the coastal and marine given latitude and longitude). One of the technical documents. conditions for use of the models is that Comment: Some commenters thought waters of New York and New Jersey. subsurface currents either are not a smooth function relating requisite The Department did not receive other expected to significantly affect the level thickness to spillet diameter would be specific recommendations for changing and extent of injuries or are reasonably more realistic than the step function the default habitat designations within uniform with depth in the area of the proposed in the models. the format requested. spill. The models also include Response: Not enough quantitative The Department recognizes that randomized motion in the vertical information is available to develop a additional habitat data are continually dimension, but not directed motion in smooth function. Available data are, in becoming available. However, the the vertical. Thus, the currents carrying fact, in the form of a step function. Department needed to finalize the data spilled material must be representable Further, given the available data and the in the models and chose not to delay in a manner consistent with this steepness of the relationship between issuance of the models to incorporate assumption of the models. mortality and dose in the pertinent recent or upcoming studies, such as the The vertically averaged current is range, the form of the function would Texas inventory. During future biennial essentially a current that provides the not significantly affect the reliability of reviews, the Department will update the correct net transport, averaged the model calculations. habitat designations to reflect newer vertically. If the transport of spilled Comment: One of the independent information. Meanwhile, today’s final material cannot be reasonably technical reviewers noted that the rule allows trustees to change the represented by a vertically averaged proposed NRDAM/CME treated default habitat designations. As further current, the condition for use would not wetlands as water cells and questioned studies provide better data, trustees may be met and the model would not be why they were not oiled as other substitute such data for the default applicable. However in many cases, shorelines. values included in the models using the three-dimensional representation of Response: Wetlands are either habitat editor function. current dynamics would not fringing or extensive in the model. Comment: One commenter stated that significantly change the damages ‘‘Fringing’’ wetlands are those which shoreline types in the NRDAM/GLE calculated by the models. For example, form narrow wetlands along shorelines. should include a cohesive (clay) for substances of low density, such as ‘‘Extensive’’ wetlands, on the other component. The commenter also toluene, that remain at or near the hand, are those sufficiently large to thought that rocky shoreline should be Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20587 changed to either rocky bluff or cobble have low accuracy. The commenters significant degree. For stocks where data beach. stated that the abundance data were were available, averages for the most Response: The Department does not inconsistent with catch data provided recent three years were used. The believe that changes to the shoreline by Federal and State fisheries agencies models are designed to represent an types are necessary. The suggested and, thus, did not account for variability average year. changes would have little impact on the in fish populations. The commenters Considerable care and effort went into reliability of the damage figure since questioned the level of care and effort estimating total lake fish stock data in biological injuries are not calculated that had gone into estimating total lake the NRDAM/GLE, as documented in based on shoreline designations. The fish stock data in the NRDAM/GLE. Section 3, Volume III of the NRDAM/ models use shoreline type to Response: The Department notes that GLE technical document. The approximate the oil retention on fishery statistics are collected to fulfill Department considered both the data shorelines. Further, the distinct holding a variety of different research and available and the species behavior in capacities for these shoreline types are management needs. For the purposes of terms of habitats utilized by season. unavailable but could be expected to fall these models, fish biomass abundance Comment: Some commenters, within the holding capacities of the was required. However, such data were including a few of the independent shoreline types already represented not uniformly available for all species technical reviewers, questioned the within the NRDAM/GLE. and all geographic regions covered by wildlife abundance data sources used Comment: One commenter provided the models. As a result, the Department for determining hunting and trapping maps of habitat types for Michigan and drew upon available data from State and losses. One commenter thought that suggested that wetlands in the Federal fishery management and some abundance data from one area connecting waterways be hand-edited. research organizations and extrapolated were used inappropriately to represent Response: Although the Department where needed to fill gaps. The criteria abundances in other areas. For example, appreciates the effort provided by the used for the selection and use of the commenter noted that the study by commenter, the grid scale of the available data are outlined in Section Onuf (1987) was used inappropriately to information was of a much smaller 6.3, Volume I of the NRDAM/CME extrapolate bird abundances over the resolution than that contained in the technical document. For all stocks entire west coast; and that the study by NRDAM/GLE and could not be directly where the National Marine Fisheries Breuggeman (1989) was used applied to revisions of the habitat grids. Service (NMFS) or State agencies have inappropriately to extrapolate marine The Department believes the NRDAM/ performed a stock assessment, these mammal abundances to both the GLE habitat designations are consistent stock sizes were used. The Department California coast and to Galveston Bay. with the maps provided, were such used biomass surveys if stock Another commenter questioned the information consolidated at the larger assessments were not available. The references to Bellrose (1980), NRDAM/GLE grid scale. As a result, the Department used catch data only if specifically as applied to trumpeter default habitat designations were not these other data sources were swans in Prince William Sound. revised in the NRDAM/GLE, and the unavailable. Thus, the data are Response: The Department has Department has not hand-edited the consistent with that collected by Federal obtained additional sources of bird habitat maps of the connecting and State agencies and represent the abundance data for the west coast and waterways. best available data for each species has incorporated those data into the Comment: Some commenters, included. Since the most valuable wildlife abundance database of the including one of the independent species in terms of total catch are also NRDAM/CME. Also, the Department has technical reviewers, thought that the the most studied, data are likely to be revised the abundance data for models should map the location of more accurate for valuable species. Galveston Bay to include more recent critical habitats, such as bird colonies or Damages resulting from less significant data on dolphins. The Department has rare communities and plants. species in the catch are typically included additional osprey data and Response: The Department does not insignificant. updated the eagle and harbor seal data. believe it is appropriate, in the context Where the Department had to use Further, the Department has deleted of developing simplified type A catch data to estimate biomass, it used data for mysticetes (baleen whales) for procedures, to attempt to map all both commercial and recreational catch provinces 4, 5, and 7. The Department critical habitats and rare communities data compiled by NMFS, the Federal applied data in Bellrose (1980) only throughout the entire geographic region agency charged with assessing and where no other data were available. The covered by the models. The models regulating fisheries stock. These catch Department has now replaced most were developed based on an assumed data are the best available source of references to Bellrose (1980) with more average abundance of biota by habitat information. The Department used recent data. In particular, the within a biological province. The commercial catch data as the sole source Department has updated data for Prince Department believes that if a release is of information only where there was not William Sound based on a 1990 to 1995 expected to affect a critical habitat or a significant recreational fishery. waterbird survey. For further rare community that is not adequately The Department did attempt to information, see Section 5, Volume IV of represented by the models, then use of account for variability in fish the NRDAM/CME technical document. type B procedures should be populations. The areal extent of a Comment: One of the independent considered. species and its seasonal movements are technical reviewers thought that the Comment: A number of commenters, based on life-history information for definition of subtidal wetland was including some of the independent that species. Some species do not in fact unclear and recommended that technical reviewers, identified and move seasonally. Those that do are intertidal seagrass be added as a habitat suggested the Department fill data gaps indicated in the database. In some cases, type. in fish abundance. Several commenters catch from large areas is represented in Response: Subtidal wetlands are the believed the fish abundance data in the smaller areas if the life history warrants. subtidal shallow waters in and around models were based on commercial catch In other cases, the data are not extensive wetlands. The Department has data that were not generated with sound supportive of regional specificity. Also, amended the NRDAM/CME technical scientific methods and are known to some stocks do vary annually to a document to include this more precise 20588 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations definition of subtidal wetlands. See Response: The habitat grid will, by abundance data. See 59 FR at 40330 and Table 4.4, Volume I, of the NRDAM/ the fact that it is rectangular, never 63314. The Department has made a CME technical document. The precisely represent actual shore length, number of changes to the databases as Department has also included intertidal which is curved. However, the a result of the public comments and seagrass as an additional habitat type. Department notes that the NRDAM/ now believes that the abundance data Comment: A number of commenters, CME’s grid resolution has been are more reliable. including one of the independent increased by a factor of four and the In response to the specific data technical reviewers, thought that use of habitat data for the area in question comparisons made by the commenter, province-wide abundance figures was (provinces 11 through 13) have been the Department has updated the data for inappropriate given the sizes of the revised based on information provided province 51 and revised seabird provinces. An independent technical to the Department. These revisions have abundances for the northeast. Puffins reviewer suggested that provinces be significantly improved the precision of are no longer included in province 2, subdivided. Another commenter stated the shore length estimate. The but are present in province 3, offshore that grid-specific wildlife abundances Department considered the commenter’s New Hampshire and Maine. The State of should be used where such data are suggestion of using a multiplication Maryland’s 1994 census data are more available. factor to correct shore width. However, recent and have been used. The Florida For west coast wildlife densities, one such a multiplier would affect the Natural Resource Department’s 1994 commenter noted that the NRDAM/ manner in which the physical fates estimates for pelican and bald eagles are CME’s provinces are not consistent with submodel addresses the oiling of more recent and have been used. The spatial strata within which seasonal shorelines and induce additional error Department has not included the data densities of a species are relatively into the calculations performed by the for Loggerhead and Kemp’s Ridley uniform. The commenter noted that this model. Thus, the multiplication factor turtles in the offshore Gulf of Mexico can result in wildlife densities that are method was not employed. since these species are not found in orders of magnitude too high in some Comment: A few commenters, waters greater than 200 meters deep cases or too low in others. including some of the independent (NOAA 1985). Also, no data Another commenter pointed out that technical reviewers, suggested that documenting abundances of these monthly rather than seasonal averages the estimates of wildlife seasonal turtles in Galveston Bay are available. be used where such data are available. densities for the west coast were For further information, see Section 5, Commenters noted that use of monthly uniformly high and the numbers Volume IV of the NRDAM/CME averages was particularly important for generated by extrapolation of density technical document. migratory species. Comment: A commenter thought the may exceed entire world population for Response: Adequate data do not exist wildlife abundance data were generally many species. The commenter provided at this time for most species to biased. recent survey density data for birds and incorporate monthly averages. As more Response: The Department believes mammals. One of the independent data become available, the Department that the data used in the models technical reviewers suggested that the will consider incorporating monthly represent the best available information Department update data on west coast averages in the models during future collected by independent scientists and bird abundances. biennial reviews. government agencies. Response: The wildlife data for the Comment: One commenter questioned Comment: One commenter noted that west coast and Gulf of Alaska were the reliability of the abundance data in the assumption of even distribution and completely revised with more recent the proposed NRDAM/CME and offered random movement of biota may not be and actual survey data provided by one different data from State wildlife true. For example, the commenter noted commenter. Wildlife data for other agencies and available literature. The that fish eggs and larvae are not provinces were also updated with more commenter recommended the following randomly distributed. recent information. These corrections changes to the databases: modification Response: Although some biological have eliminated the extrapolation errors of data for pigeon guillemots and populations may not be evenly noted. The Department believes the kingfishers in Puget Sound and the distributed and may not move randomly revisions made to the database have Straits of Juan de Fuca (province 51) across large areas encompassing sufficiently addressed the possible need based on 1994 census data by multiple habitat types, the Department for subdividing province-wide Washington State; deletion of data on believes that, for purposes of these abundances. For further information, puffins along the New Hampshire coast; models, it is reasonable to assume that see Section 5, Volume IV of the modification of data on bald eagles and populations are randomly distributed NRDAM/CME technical document. osprey in Maryland based on within a single habitat type. Comment: One commenter thought Maryland’s 1994 census; modification of Comment: Several commenters noted the way east coast province-wide data on pelicans and bald eagles in that the proposed wildlife mortality wildlife abundances were distributed to Florida based on the Florida Natural model assumed that a wildlife species the available individual habitats within Resource Department’s estimates; and redistributes itself uniformly over its NRDAM/CME grids resulted in an addition of data on Loggerhead and habitat each and every day. The underrepresentation of wildlife Kemp’s Ridley turtles for the Gulf of commenters thought this assumption abundances within the habitat grids. Mexico and Galveston Bay. was not justifiable and would tend to The commenter noted that individual Response: The Department overstate wildlife mortality. habitat grids cannot hold enough habitat acknowledges that some errors occurred Response: The Department believes area to add up to the assumed during the compilation of the wildlife that, for purposes of these models, it is provincial totals. The commenter abundance database, and additional reasonable to assume that a wildlife suggested adding a multiplication factor information and data sources have been species redistributes itself uniformly to correct for the underrepresentation of identified as a result of the public’s over its habitat each day. Habitat area habitat area, and resulting proportionate review of these models. In fact, the within the models is of a size on the underrepresentation of wildlife Department specifically sought the order of an individual’s actual home abundances. assistance of the public on the wildlife range. Each individual does tend to Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20589 cover its home range each day, either for using type B procedures instead of a most important species in southern feeding or territorial purposes. Thus, type A procedure. Maine and New Hampshire. populations do redistribute themselves Comment: One commenter addressed Response: The commenter appears to daily. species abundance in New York Harbor. have misinterpreted the data contained Comment: A commenter noted that The commenter was unable to match the in the proposed technical document. the models’ assumption that the density species abundance data for New York The Department acknowledges that of a species in its designated habitat is Harbor with that of the Erwin and NMFS does not list commercial oyster constant throughout a given province Korschger (1979) reference cited. The fisheries in northern New England; could result in overestimates of actual commenter also stated that inaccuracies however, there is a small recreational mortalities for those provinces with in abundance data resulted from a fishery for oysters. Thus, they are not multiple grids. failure to adequately identify habitat commercially important but do have Response: The Department does not types. recreational significance. believe that this assumption leads to Response: The Department has Comment: One commenter asserted overestimates for provinces with rechecked the data and made revisions, that shrimp is by far the most significant multiple grids. The biological database as appropriate, using the Erwin and catch in South Carolina. The commenter assigns the densities of species on all Korschger (1979) source and other more also thought that roughtail rays, orange appropriate designated habitats recent sources. The results of the filefish, and scad were overly abundant regardless of the number of grids retabulated data are contained in in the database relative to shrimp. Response: The Department could not contained in the province. However, Section 5, Volume IV of the NRDAM/ find any Federal or State stock losses occurring in one grid are not CME technical document. assessments or biomass surveys for distributed across grid boundaries and, The wildlife abundance data shrimp, roughtail rays, orange filefish, thus would not overestimate losses. contained in the databases are province- Comment: A commenter thought the or scad in South Carolina. Therefore, the wide abundances and, thus, are NRDAM/GLE technical document Department based the abundance data independent of the habitat grids and the should specify the time frame duration for these species on NMFS commercial habitat types assigned to the grid cells. for all assumptions about species catch statistics. The NMFS catch data do Table 6.4, Volume I of the NRDAM/CME density. not support the statement that shrimp Response: The model assumes that technical document contains the areas are the most significant catch in South species densities are uniform by season. of habitat used for all calculations of Carolina. Shrimp are a significant part The abundance tables clearly specify wildlife abundances. Further, the of the inshore catch for many of the that density figures are provided on a habitat grids for New York Harbor have reporting areas, but are not common in seasonal basis. See Tables III.3.17 been revised based on comments offshore areas. The database includes all through III.3.27 and III.3.40 through submitted by the States of New York species for which NMFS catch data III.3.50, Volume III of the NRDAM/GLE and New Jersey. were available. Roughtail rays do form technical document. Comment: Another commenter stated a large percentage of the catch by Comment: A commenter noted that that Great Lakes wildlife abundances weight; however, they are not as several of the groups of marine birds should be based on a more thorough significant economically as shrimp and, and mammals used in the NRDAM/CME review of the literature and thought that thus, are not as highly valued in the could be eliminated, based on Burt (1976) was an inappropriate source model. Orange filefish and scad are not documentation of relative lack of of data. The commenter recommended major portions of the catch and the vulnerability to oil spills. that the models incorporate site-specific model accurately reflects that. Response: The Department data wherever they are available instead Comment: One commenter questioned acknowledges that some groups of of applying average values for several why the NRDAM/CME did not include marine birds and mammals are not as provinces. lobster in New York Harbor. sensitive as others to the effects of oil Response: The Department has Response: The Department could not spills. However, the model also incorporated site-specific information find any Federal or State stock evaluates indirect effects (e.g., via the into each of the lake provinces. The assessments or biomass surveys of food web) for both oil and chemical Department used Burt (1976) only if lobster in New York Harbor; therefore, spills, which could be significant in more province-specific data were not the Department relied on NMFS certain scenarios. available. Public commenters supplied commercial catch statistics. The NMFS Comment: One commenter stated that no additional data on wildlife commercial catch statistics do not show the species contained in the NRDAM/ abundances in the Great Lakes. Further, any catch for lobster in New York CME should be limited to those for the Department conducted a thorough Harbor. which reliable abundance data exist, or search for published and unpublished Comment: One commenter sought those that are threatened or endangered. data and located no additional sources clarification of several aspects of the Response: The NRDAM/CME is of data. When abundances were highly discussion of young-of-the-year limited to those species for which variable among lake province-specific modeling in the NRDAM/CME technical reliable abundance estimates were sources of equal validity, the document. The commenter questioned available. Section 6, Volume I of the Department averaged available data to the meaning of the term ‘‘stable NRDAM/CME technical document reduce the error associated with the distribution;’’ the connection between explains the criteria the Department estimates. Professional judgment, based young-of-the-year and the adult stocks; used to establish the estimates. The on life history information for the and the meaning of the term ‘‘monthly Department included threatened or species in question, was used to mean,’’ since no monthly mean endangered species where data were determine how available data would be abundances are present in the young-of- available. However, in light of the applied. the-year database. limited range of injuries and Comment: Some commenters Response: The term ‘‘stable’’ means compensable values considered by the disagreed with the statement in the constant in time. The Department has models, if injuries to these species are proposed NRDAM/CME technical clarified the NRDAM/CME technical significant, trustees should consider document that oysters are one of the document on this point. See Section 20590 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

4.3.2, Volume I of the NRDAM/CME habitats as assumed in the database for assumptions used in the models and technical document. The Department California provinces 40 through 47. thought such information must surely has also expanded the NRDAM/CME Response: The NRDAM/CME does not be available. Another commenter technical document to explain the assume that forage fish production is asserted that laboratory bioassays connection between adult stock and nonexistent outside of structured overestimate metals toxicity and that the young-of-the-year. See Section 6.5, habitats. The food web model includes Department should consult EPA’s Water Volume I of the NRDAM/CME technical forage fish, in particular planktivorous Effects Ratio studies on binding capacity document. The Department has forage fish, in open water habitats. in natural waters. A few commenters modified the derivation of young-of-the- Comment: One commenter questioned thought that the models’ treatment of year abundance estimates so that such the inclusion of goldfish as metals speciation was overly simplistic. abundances are estimated on a daily representative herbivorous forage fish in Another commenter maintained that the basis for the first year of life and wetlands in the proposed NRDAM/GLE proposed toxicity values were too high averaged for each month. See Section technical document. compared with EPA water quality 6.5, Volume I, and Section 3, Volume IV Response: The Department used criteria. Further, the commenter of the NRDAM/CME technical goldfish in the table to which the suggested the Department refer to EPA document. commenter refers simply as an example, sediment quality criteria for benthic Comment: One commenter questioned because it is one of the few truly organisms. how the NRDAM/CME could determine herbivorous fish. Most forage fish Response: The Department believes the young-of-the-year surviving the first feeding on the bottom are omnivorous. that the biological effects submodel year of life under equilibrium Comment: One commenter thought incorporates the best available mortality conditions without knowing the first the proposed NRDAM/CME technical and toxicity data. The Department has year natural mortality rate. document was unclear how zooplankton not been able to locate bioassay data on Response: The NRDAM/CME production was determined since no the toxicity of hydrocarbon products calculates the number of one-year-old zooplankton production values were that have been developed under individuals needed to replace the fished presented in the biological database. carefully controlled conditions, with stock, assuming equilibrium Response: The NRDAM/CME constant aromatic concentrations in the populations. Thus, the actual numbers calculates zooplankton production water. Also, oil and petroleum products of eggs and larvae are not calculated or based on a percentage of phytoplankton are highly variable in their percent needed. The model is calculating the production. The technical document has composition and bioassay results. Very percentage of one-year-old animals lost been clarified. See Section 4.4, Volume few studies have addressed oil toxicity because of the spill. I of the NRDAM/CME technical and, therefore, the Department has not used direct bioassay data on oils in the Comment: Given that the abundance document. Comment: A commenter noted that models. See Section 4.2.3, Volume I of of a species may be seasonal, one the rates of production for planktivorous the NRDAM/CME and NRDAM/GLE commenter questioned how it was forage fish were not provided in the technical documents. possible that the natural mortality rate NRDAM/CME biological database and Laboratory bioassays more closely and the fishing mortality rate are questioned how primary production for correspond to dissolved metal constant for members of a species group these fish was calculated. concentration toxicity than total metal within and across years, as the equation Response: The NRDAM/CME concentration in the water. The models for young-of-the-year requires. calculates planktivorous forage fish estimate dissolved metal concentrations, Response: The natural mortality rates production based on a percentage of and these are the concentrations and the fishing mortality rates apply to zooplankton production. The technical assumed to be causing the injuries. the species population (stock) regardless document has been clarified. See Thus, the models address metal of location and abundance. Stock Section 4.4, Volume I of the NRDAM/ speciation to the extent possible, abundances apply on a province-wide CME technical document. without incorporating a complex basis. The abundances in a specific Comment: One of the independent speciation model. Further, even such a province may vary by season due to technical reviewers questioned why complex speciation model could not be migration of stock in and out of different several bait fish species were not coupled to appropriate toxicity data at provinces. Therefore, there is no included in the models. the present time, as is well noted in EPA inconsistency between using a constant Response: The Department did not and other literature. mortality rate over time and using include such species because it could EPA’s water quality criteria would not abundance figures that vary by season. find no quantitative data for such be an appropriate basis for the models’ For further discussion, see Section 6.5, species. toxicity calculations. The toxicity data Volume I of the NRDAM/CME technical in the models are mean values for acute document. G. Toxicity and Mortality response. Water quality criteria are Comment: One commenter thought Comment: Some of the independent designed to be lower than any the young-of-the-year database in the technical reviewers stated that the concentration found to have either an NRDAM/CME was incomplete, noting biological effects submodel was logical acute or chronic response for even the that there are several species groups in and well conceived for assessing the most sensitive species. Thus, the water the adult database that are absent in the effects of minor spills. However, other quality criteria should be lower than the young-of-the-year database. commenters asserted that the submodel models’ toxicity data. EPA sediment Response: Certain species, such as suffered from an overall lack of quality criteria are evaluated in Section anadromous fish, do not spawn in supporting data and questioned the 4.2.1, Volume I of the NRDAM/CME and marine habitats. Thus, there may be methods used for calculation of NRDAM/GLE technical documents. adults present in a given province mortality and toxicity data. One Comment: One commenter provided a without young-of-the-year present. commenter noted that bioassay studies highly technical review of the proposed Comment: One commenter questioned measuring the lethality of oil and toxicity model. The commenter noted whether forage fish production was petroleum mixtures directly were that it was the commonly accepted nonexistent outside of structured preferable to the oil toxicity toxicity model currently used in Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20591 environmental toxicology. The algorithm used and further clarification underestimate toxic effects, because in commenter encouraged the Department of the changes made. acute tests involving up to 96 hours of to apply chemical- and species-specific Comment: Several commenters noted exposure, animals are typically not fed. values to the alpha and gamma terms in examples, primarily for metals, where Thus effects result from water-borne the toxicity algorithm. the proposed NRDAM/CME used exposure only. The technical reviewer Response: The Department toxicity thresholds that were lower than concluded that the models may be appreciates the in-depth review of the naturally occurring water solubilities. inappropriate for spills of hydrophobic toxicity model provided by the The commenters suggested these errors organic compounds where most of the commenter; however, insufficient data were due to the Department’s exposure would be through exist at this time to make the inappropriate use of freshwater toxicity contaminated food. recommended changes. To the extent data in saltwater environments. Response: The Department agrees that possible, the Department has used Response: Comparison of the salt- and the models may not fully capture the gamma values that are chemical-specific freshwater databases for those chemicals effects of a spill that contaminates food and alpha values that vary by class of where data existed showed no sources. The Department has revised the chemicals. See Section 4.2.1, Volume I significant differences in toxicity values technical documents to clarify this of the NRDAM/CME and NRDAM/GLE given the variability of such data. point. See Section 4.2.1, Volume I of the technical documents. However, the Department has deleted NRDAM/CME and NRDAM/GLE Comment: One commenter questioned those chemicals where a difference technical documents. the accuracy of the toxicity calculations would be expected (i.e., those making Comment: One of the independent of the proposed NRDAM/GLE, up salinity such as sodium). technical reviewers thought that the particularly with regard to releases of The toxic thresholds in the models are models should account for the metals. The commenter provided only used as switches to end the incremental effects of spills on existing information on a series of test cases in calculations of the physical fates levels of contamination. the Niagara River that the commenter submodel. When the physical fates Response: The Department did ran using the proposed NRDAM/GLE. submodel determines that consider inclusion of background Response: Based on the information concentrations are below this level in all contamination data in the models. provided, the Department believes the locations, it stops running. The However, data sources were insufficient test cases run by the commenter may threshold is the concentration that to include such information for the not provide an appropriate basis for would cause one percent mortality at 30 entire area covered by the models. As a evaluating the NRDAM/GLE. The degrees Celsius after 96 or more hours practical matter, background NRDAM/GLE was not designed to of exposure for the most sensitive contamination present at the spill site address multiple releases from various species group. The biological effects before a spill would lower the threshold sources over a number of years. It submodel calculates the actual mortality for effects by the spill. Thus, not appears that the commenter may have for each species group based on including background contamination in run the cases with the accumulated duration of exposure and temperature. the models is likely to underestimate mass of contaminants as if that mass The proposed technical documents injuries. However, the Department had resulted from single event spills of contained an incorrect list of the toxic believes that in cases where background short duration. Also, the model was not thresholds actually used by the models. contamination is significant but the cost designed to evaluate long-term chronic The documents have been corrected. of using type B procedures is not exposures to hazardous substances. See Table III.2.1, Volume III of the reasonable, trustees should still have the The Department does agree, however, NRDAM/CME and NRDAM/GLE option of using a type A procedure. that pure metals are not correctly technical documents. Comment: Commenters suggested that modeled by the NRDAM/CME and The toxicity data in the database, rather than use average exposure NRDAM/GLE. The toxicity data for including the threshold values, apply to concentrations in the plume, the models these metals are based on bioassay dissolved concentrations, not total should evaluate mortalities that accrue studies that measured the dissolved concentrations. For chemicals that are from the actual cumulative exposure. metal ion concentrations in water. Such highly partitioned, such as metals and One of the independent technical toxicity data are not representative of nonpolar organics, the dissolved reviewers thought that it was not the chemical state of the metal that concentrations will be a small fraction meaningful to estimate fractions of would occur under natural of the total. The physical fates submodel animals killed and recommended that environmental conditions. As a result, partitions chemicals in both the water the models round up fractional the Department has deleted all pure column and the sediments. Only mortalities to total animals killed. metals from the chemical databases. dissolved chemical in the water column Response: Inadequate data currently Comment: Some commenters, or in the sediment pore water causes exist to estimate effects of cumulative including one of the independent toxicity in the models. Thus, the exposure. Further, the computational technical reviewers, expressed concern toxicity values should not be compared complexities and the potential size of about the models’ failure to account for to total concentrations in water, but the internal, intermediate data files are the additive toxicity of aromatics in oils. rather to the dissolved portion only. effectively beyond the capacity of Response: The Department has This accounts for the discrepancies currently available PCs. Instead, the modified the NRDAM/CME and perceived by the commenter when biological effects submodel performs NRDAM/GLE to include an additive comparing thresholds to total metal multiple iterative runs, using different toxicity model that accounts for the background concentrations. The randomized algorithms, and then combined lethality of similar acting Department has eliminated all averages the results of these runs to aromatics in oils. The Department used chemicals with a solubility below the avoid anomalous model outputs and the information identified by one of the toxic threshold. increase reliability. See Section 4.3.1, commenters to construct this additive Comment: One of the independent Volume I of the NRDAM/CME and toxicity model. See Section 4.2, Volume technical reviewers thought that the use NRDAM/GLE technical documents. I of the NRDAM/CME and NRDAM/GLE of toxicity values based on acute The model is intended to generate technical documents for the specific toxicity laboratory tests could valid mortality estimates for portions of 20592 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations populations rather than discrete deaths wildlife mortality used by the models Response: The Department has of individual animals. Therefore, are based on data obtained from modified the NRDAM/GLE to include fractional mortality figures are observations of real spills. Some duck mortality rates that are consistent appropriate. modifications have been made to the with those in the NRDAM/CME. Based Comment: One commenter thought probability values based on more recent on recent information, the Department the portions of the NRDAM/CME and information. has incorporated a 99 percent mortality NRDAM/GLE technical documents The Department acknowledges that rate in both models for those ducks that pertaining to the use of particles to the supporting data sources for wildlife are exposed to a spill over the threshold represent biological populations were mortality do address crude oil. dose. See Section 4.3.4, Volume I of the unclear. The commenter sought However, the Department believes that NRDAM/GLE technical document. clarification of how the models operate the models adequately account for the Comment: Commenters noted an when the particles hit a physical differences between crude oil and other apparent lack of correspondence boundary within the models. The petroleum products by calculating between numbers of marine birds the commenter also sought clarification of wildlife exposure dose based on the oil models estimated to be killed, and the fate of particles and their exposure thickness and slick size. The mortality numbers killed based on actual wildlife history during a change of seasons. The threshold is based on the exposure dose recoveries and detailed damage commenter believed there should be that is sufficient to cause an observable assessments. One commenter believed exposure memory for particles effect in experimental studies. If the that the mortality counts for birds representing those species whose exposure level exceeds the threshold, impacted by oil spills in Florida density is constant across seasons. The then wildlife mortality is assumed. For appeared low in almost all cases. commenter further supported the use of example, petroleum products that Commenters suggested an alternative multiple iterative runs to minimize the spread to sheen quickly, entrain, and/or hindcast model for wildlife mortality variability error caused by using a finite evaporate have much less effect on estimation that was used for the T/V number of particles to represent a wildlife in the models than thick, long- Puerto Rican, Apex Houston, Nestucca, population and by limiting particle lasting oils, such as crude oil. Thus, the and Exxon Valdez oil spills. movements on a daily basis. models account for differences among Response: The Department believes Response: Particles may be hydrocarbon-based oils and products that the apparently low mortalities observed by the commenter were due to transported out of a grid at the through the physical fates submodel and downstream edge and ‘‘created’’ as the low abundance data for certain bird the exposure algorithm. This algorithm previously unexposed particles at the species contained in the proposed is further explained in Section 4.3.4, upstream edge. Particles intersecting biological database for the Florida coast. Volume I of the NRDAM/CME and land are reflected back into the water. The Department has revised the wildlife NRDAM/GLE technical documents. At the change in seasons, the models database for the Florida coast based on Comment: Some commenters assume that new individuals are present additional information provided by (at pre-spill abundances) and do not contended that no data were available to commenters. Model runs conducted carry over the exposure history from the support mortality rates for raptors. with the revised wildlife abundance past season. The past season’s injuries Commenters also questioned the database no longer reveal large are tabulated and the exposure history extrapolation of sea otter mortality discrepancies. See Section 5, Volume IV for the new season is set at zero. probabilities to polar bears. of the NRDAM/CME technical Therefore, in a case where exposure Response: The Department considers document. extends across the seasonal boundary, the eagle mortality rates to be Also, the Department has revised the the time of exposure would be appropriate for raptors in general. probability of mortality for aerial divers underestimated. The technical Mortality of eagles and other raptors as using hindcasts, as suggested. See documents have been clarified on these calculated by the models generally Section 4.3.4, Volume I of the NRDAM/ points. See Section 4.3, Volume I of the results from contact with slicks in CME technical document. NRDAM/CME and NRDAM/GLE shallow waters and along shorelines, Comment: Several commenters, technical documents. The Department and both eagles and other raptors including one of the independent agrees that multiple runs of the same occupy such areas to similar degrees. technical reviewers, generally scenario will give a better prediction of The eagle mortality rates used in the questioned the oil mortality damages than a single run. Thus the models are also supported by evidence probabilities and suggested that they be models’ internal procedures average from the Exxon Valdez spill. Further, calibrated to data from actual spills, multiple runs to arrive at a damage osprey behave very much like eagles. noting that the wildlife mortality figure. Thus, the Department believes it is probabilities in the proposed models Comment: Several commenters reasonable to use the same mortality were inconsistent with experience in generally criticized the proposed rate for eagles and osprey. the Exxon Valdez spill. models’ wildlife mortality calculations. The Department recognizes that no Response: The mortality probabilities Some commenters maintained that the explicit data are available on the included in the models are based in part models fail to adequately distinguish probability of polar bears dying from on data from actual spills. Very little among effects of different types of spills. However, the Department data exist on the natural resource effects compounds and questioned the believes that it is appropriate to use the of small spills of the type addressed by application of wildlife mortality same probability for all furbearers the type A models. Therefore, it is probabilities to substances other than because the mechanisms of exposure impossible to determine the need for crude oil since the only supporting data and toxicity, namely ingestion of oil calibration. Nonetheless, the sources were for crude oil. through grooming, are similar. Department did consider data on Response: The Department considers Comment: One commenter thought physical fates and biological effects the wildlife mortality model to be that the NRDAM/GLE should use a 90 collected after the Exxon Valdez spill reasonable, scientifically justified and to 95 percent mortality rate for ducks when evaluating the NRDAM/CME’s consistent with experience in actual contacting heavy oil, as the proposed mortality predictions. Bird and marine spill events. The probabilities of NRDAM/CME did. mammal injuries estimated by the Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20593 model provide reasonable agreement percent was too high and has reduced process the Department used to derive with estimated kills caused by the spill. it to 0.1 percent. The Department average toxicity parameters. Researchers Also, the commenters may not have considers this revised rate to be have found that the LC50 for one correctly interpreted how the model reasonable as compared to the mortality species is a reasonable predictor of calculates wildlife mortality. The rate for seals. The NRDAM/CME toxicity for other species within the commenters inferred that the wildlife assumes a seal mortality rate of 1.0 same family and that, in many cases, mortality probabilities are multiplied percent based on hindcast projections cross-family correlations are also times all animals at risk, and include using Exxon Valdez data. Seals significant. See Sections 4 and 7, populations for all of the northern Gulf continuously inhabit open waters and Volume I of the NRDAM/CME and of Alaska in the total population at risk. shorelines, whereas terrestrial wildlife NRDAM/GLE technical documents. Instead, the model only multiplies the inhabit shorelines only a portion of the Also, the administrative record for this probabilities times the animals actually time. Therefore, terrestrial mammals rulemaking includes additional material encountering oil and receiving a dose would be expected to have lower rates on the derivation of average toxicity above the threshold value. Thus, the of encountering spills and, thus, lower parameters. population ‘‘at risk’’ in this sense is mortality rates. Available information is insufficient orders of magnitude lower than the Comment: Commenters suggested the to disaggregate further the toxicity commenter’s suggested value. models grossly overestimate fish values used in the models. Comment: Several commenters mortality from oil spills by Disaggregation of the few data available asserted that the models overestimate overestimating dissolved hydrocarbon would increase the error in the model wildlife injuries by failing to account for concentrations. These commenters result because of the uncertainties weathering of oil, the effect of particularly took issue with the associated with individual data points. temperature, and the fact that light Department’s assumption that total For plants, algae, or angiosperms, products like gasoline and other floating aromatic hydrocarbon content of a spill available data in EPA’s AQUIRE chemicals would be readily washed remains the same by percentage before database support the use of a mean from the coats of furbearers. and after the spill. These commenters LC50 value. There are insufficient data Response: The physical fates cited studies showing that weathering to quantify differing values by plant submodel does account for weathering. results in little of the hydrocarbon group. The Department does not believe Evaporation, degradation, and content entering the water column. that use of more specific plant values entrainment reduce the area and Response: The Department does not would significantly improve the thickness of slicks, which in turn think that the models overestimate fish reliability of the model damage figure reduces the frequency with which mortality resulting from oil spills. because the model damage figures are wildlife will be exposed to oil doses Aromatics in oils are known to cause not sensitive to the value assumed, large enough to induce effects. See the most acute toxicity. See Section within the range of observed data for a Section 3.5, Volume I of the NRDAM/ 4.2.3, Volume I of the NRDAM/CME and given chemical. CME and NRDAM/GLE technical NRDAM/GLE technical documents. The Comment: A few commenters documents. For example, extremely physical fates submodel separately generally criticized the Department’s volatile compounds evaporate so tracks dissolved aromatics of two approach to assessing fish mortality quickly that their surface slicks have molecular weight size classes: (1) from toxicity data using statistically essentially no effect on wildlife. monoaromatic benzenes and (2) averaged values, asserting that The Department does not think that diaromatic compounds. These aromatics information necessary to review the temperature is likely to have a do volatilize rapidly in the models. adequacy of such an approach was not significant effect on mortality rates. Thus, relatively little of these aromatics included in the proposed technical While one effect of oiling is a decrease end up in the water column and cause documents. One of the commenters in thermal conductance of fur and toxicity. See Section 3.5, Volume I of noted apparent inconsistencies between feathers, it is generally thought that the the NRDAM/CME and NRDAM/GLE the values used in the models and the predominant toxic effects result from technical documents. values in the AQUIRE database. Another ingestion of oil during grooming. See Also, the models do not assume that commenter asserted that unless the Section 4.3.4, Volume I of the NRDAM/ the percent composition of total Department could demonstrate that the CME technical document. Also, animals aromatic hydrocarbons remains constant oil toxicity algorithms in the revised are adapted to the climate in which they in the spilled substance. The NRDAM/CME were more accurate than live. Thus, a tropical species suffers Department has clarified the text of the those in the original NRDAM/CME from hypothermia at a higher technical documents on this point. See issued in 1987, the Department should temperature than subpolar species. Section 4.2.3, Volume I of the NRDAM/ return to the original algorithms. Finally, the light products and CME and NRDAM/GLE technical Response: The Department believes it chemicals contained in crude oil are documents. has provided sufficient information and widely recognized to be the more toxic Comment: Commenters asserted that opportunity to review the approaches components. The light products and it is too simplistic to use a mean LC50 used to calculate fish mortality and to chemicals are hydrophobic, and so (the concentration at which 50 percent derive the toxicity data contained in the would not be washed from fur by of test organisms die within a defined databases. Section 4, Volume I of the seawater. Given the same dose, in terms time period) for the whole taxonomic NRDAM/CME and NRDAM/GLE of mass of hydrocarbons, these products class of fish or for all plants, algae, or technical documents explains how the are expected to have similar effects to angiosperms. Further, commenters models calculate fish mortality. Section crude oils. maintained that the Department failed 2, Volume III of the NRDAM/CME and Comment: One commenter thought to provide information sufficient to NRDAM/GLE technical documents that the proposed 10 percent mortality evaluate the statistical relationships provides toxicity values for each rate for terrestrial mammals was too involved. substance contained in the chemical high. Response: The NRDAM/CME and databases and the source of information Response: The Department agrees that NRDAM/GLE technical documents used to derive those values. Due to the the proposed mortality rate of 10 contain detailed descriptions of the volume of material, the Department has 20594 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations not included in the technical documents Comment: One of the independent Section 4.5.2, Volume I of the NRDAM/ all of the raw data and statistical technical reviewers thought the CME and NRDAM/GLE technical analyses that were compiled for each NRDAM/CME should account for the documents. The models do not assume toxicity value. However, the sources of fact that fish and macroinvertebrates that the spill occurs at the time of the raw data, such as AQUIRE, are may be exposed to intertidal fledging or that the time of fledging is available to the public. Also the contamination when the tide is in. constant for all species. The wildlife life methods used to derive the statistically Response: The model does account for history parameters used by the models averaged toxicity values are consistent tidal inundation in its calculation of the include the age (in months) at which with those commonly used in aquatic water column plume. Contamination in young are fledged or weaned, not the toxicology. The toxicity values used in the water may move into intertidal areas month of the year in which they are the model are based on all literature in when water is present over them. When fledged or weaned. The fledging and the AQUIRE database as of November the tide goes out, the plume is weaning ages in the database are the 1991. The AQUIRE database has not transported out as well. ages at which young become been updated since that time. The Comment: One of the independent independent. See Section 4, Volume IV commenter appears to have reviewed technical reviewers thought the fish of the NRDAM/CME technical only a limited range of data in the swimming speeds used in the proposed document, and Section 3.6, Volume III AQUIRE database. models were extremely low. of the NRDAM/GLE technical Finally, the Department believes that Response: The Department believes document. the revised NRDAM/CME is an that the swimming speeds incorporated A substantial volume of literature improvement over the original NRDAM/ in the models are appropriate for the addresses the parental care of young CME and more accurately calculates oil time step involved. The models use birds and mammals and the inability of toxicity. The technical documents these speeds as distance moved in a those young to survive without parents. explain all oil toxicity values used in single direction in an individual time See Section 4, Volume IV of the the models. See Section 4.2.3, Volume step. Direction is randomized, so that NRDAM/CME technical document, and I, and Section 2, Volume III of the after many time steps, motion is Section 3.8.4, Volume III of the NRDAM/CME and NRDAM/GLE random. The rates are low because of NRDAM/GLE technical document. The technical documents. The toxicity the time step used. Otherwise, there is Department believes it has provided parameters are for dissolved aromatic too much migration of fish in the ample documentation to substantiate hydrocarbons of less than 200 molecular models. For further discussion, see that the death of parent animals does weight, which is what the models Section 4.3.1, Volume I of the NRDAM/ result in the death of young that are calculate as the toxic material. CME and NRDAM/GLE technical dependent on them. Literature estimates are for whole oil, documents. H. Loss of Production total petroleum hydrocarbons, or water Comment: One commenter questioned soluble fractions, and thus are the accuracy of the statement in the Comment: One of the independent inapplicable to and higher than those proposed NRDAM/GLE technical technical reviewers stated that direct for the dissolved low molecular weight document that short duration oiling can kill seagrass and thereby fraction. disturbances of biota are not evaluated reduce habitat function. The technical Comment: One commenter noted that in light of the fact that the model reviewer suggested that the models the susceptibility of developing fish specifically focuses on acute injury. account for the effect of oiling on eggs and larvae to toxic substances Response: The statement in the submerged macrophytes such as changes over time and sought technical document to which the seagrass and kelp. clarification whether the models commenter refers simply addresses the Response: The NRDAM/CME account for seasonal variations in model assumption that seasonal calculates the sublethal loss of toxicity. biological abundances do not change for production and the acute lethal effects Response: The Department recognizes reasons other than the spill. See Section to subtidal seagrasses and other that the susceptibility of fish eggs and 4.1.2, Volume I of the NRDAM/GLE submerged macrophytes exposed to larvae to toxic substances may change technical document. concentrations of dissolved oil in the with age. However, the Department does Comment: One commenter stated that water. However, evidence of oil coating not think that sufficient research data the Department had made an and smothering macrophytes that are have been compiled to quantify a unsubstantiated assumption that, for under water or in floating beds, does not change in toxicity by age of eggs and wildlife, death of parent animals will appear to be available. The Department larvae for all the species groups and necessarily lead to death of immature does not consider smothering of chemical substances contained in the animals. However, other commenters subtidal seagrass to be likely given that chemical database. Therefore, the stated that, according to the equations in oil slicks float on the water surface and models have not been revised to account the proposed technical documents, the wave action would flush the oil from for this potential effect. models fail to account for lost future floating beds. Therefore, the Department Comment: Some commenters, harvest of young that are killed as a has not included the coating and including one of the independent result of the death of their parents. A smothering of subtidal macrophytes as technical reviewers, criticized the few commenters thought the models an injury calculated by the model. models for failing to account for the assumed that the spill occurred at the Intertidal seagrass habitats have been effects of avoidance of a spill by fish. time of fledging and that the time of added to the NRDAM/CME as a new Response: The Department fledging is constant for all species. Some habitat type. The Department recognizes acknowledges that some portion of fish commenters also thought that the that intertidal seagrass can be coated by populations may avoid spills of some hatching and fledging times presented oil and smothered. Research studies types of chemicals. However, the in the database were excessive. have shown saltmarsh plant mortalities Department was unable to identify Response: The models assume that if to occur from exposure to oil adequate quantitative data on this adult birds or mammals are killed while thicknesses of 14 millimeters. As a phenomenon to include it in the models their young are dependent upon them, result, oiling of intertidal seagrass beds at this time. then the young will be lost as well. See over a threshold thickness of 14 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20595 millimeters is considered lethal to the field. Instead, the use of only the assume temporal distribution is seagrass, which is consistent with the higher LC50 data would likely be constant by season for fish and shellfish model’s treatment of oiling effects on representative of only the direct and by month for young-of-the-year. other intertidal habitat types. See mortality to nonsensitive organisms. The models do not assume even Section 4.3.3.2, Volume I of the Comment: One of the independent spatial distributions of ecological NRDAM/CME technical document. technical reviewers recommended that communities. The abundance data Comment: One commenter thought the Department adopt a habitat-based contained in the biological database that the proposed method of estimating approach to calculating the loss of were developed assuming evenly post-spill recovery of macrophyte production. Under this approach, each distributed species abundances within a primary production was adequate for grid would have an associated biomass particular habitat and biological the purposes of the NRDAM/CME. per unit area, and if that grid were oiled, province occupied by the species, and However, the commenter suggested that an assumed percent of yield would be within a given season or month. The the Department consider adjusting the lost. species abundance data are assigned to sigmoidal function used to estimate the Response: The models do use a the models’ biological computational rate of biomass production so that the habitat-based approach in the particles. Abundances of young-of-the maximum rate of production occurs at calculation of lost production. Each year change monthly between habitats, one-half of the pre-spill biomass level. contiguous grid cell of the same habitat provinces, and portions of the water Response: The Department type within the grid has an associated column (pelagic, demersal or benthic), acknowledges the limitations of biomass per unit area. The models as appropriate to the species’ life available data to specifically define the calculate a percentage loss of biomass history. Therefore, the particles do not shape of the recovery curve for for the defined habitat type based on represent abundances that are evenly macrophyte production. However, the concentration and time of exposure. distributed spatially. model results are not sensitive to the Biomass losses are summed and The Department acknowledges that a specific shape of the recovery curve; multiplied times the fishing mortality small portion of demersal young-of-the- therefore, further effort to refine the rate within the habitat type to calculate year are potentially carried by currents. curve is not likely to result in the lost yield. See Sections 4.3 and 6.2, However, for the purposes of these significantly improved reliability. Volume I of the NRDAM/CME technical models, the Department believes it is Comment: A few commenters, document, and Sections 4.3 and 8.2.2, reasonable to assume that all demersal including one of the independent Volume I of the NRDAM/GLE technical young-of-the-year are attached to the technical reviewers, thought the models document. bottom. See Section 4.3.2, Volume I of should consider the effects of Comment: Several commenters stated the NRDAM/CME and NRDAM/GLE compensatory growth (i.e., enhanced that the models rely on assumptions technical documents. If any demersal production due to the removal of inter- about ecological and exposure processes young-of-the-year did in fact drift with and intra-species density-dependent that are inconsistent with actual the current, they would likely be more growth-limiting factors). These environmental conditions and could exposed to the released substance, commenters stated that the models result in inflated damage estimates. which would also be moving with the would overestimate production losses Some commenters thought that the current. Therefore, if the assumption unless compensatory growth were models inappropriately assume that that all demersal young-of-the-year are considered. The commenter also ecological communities are evenly attached to the bottom is not reasonable suggested that, for lower trophic levels, distributed both temporally and in a particular case, the models are the models should use the upper 75th spatially. Several commenters disagreed likely to underestimate rather than percentile of the available LC50 or EC50 with the model assumption that all overestimate damages. (i.e., the concentration at which growth demersal young-of-the-year are attached Also, simulation of vertical migration is reduced by 50 percent) values rather to the bottom and thought that this would require substantial additional than the mean of the LC50 and EC50 assumption would overestimate injury. modeling. The Department does not values. Some commenters stated that the believe that adding such complexity Response: The Department assumption that the depth of would substantially improve the acknowledges that compensatory bioturbation is always 10 centimeters reliability of the final damage figure. growth is not addressed within the would also lead to overestimates of In some contaminated, and thus models. However, the Department does injuries. One of the independent ecologically stressed, habitats, the depth not believe that production losses are technical reviewers thought that the of bioturbation may be less than 10 overestimated as a result. For the small models should account for vertical centimeters. However, for most regions spills for which the models were migration. covered by the models, the Department designed, density-dependent growth Response: Ecosystems have the believes it is reasonable to assume a and survival effects are likely to be resilience to adapt to a number of depth of 10 centimeters, since most insignificant. Further, density- unpredictable disturbances. Further, estuarine and marine sediments are dependent effects of large changes in most small spills do not appear to relatively uncontaminated. Contrary to fish population sizes have been difficult significantly alter ecosystem structure or the commenters’ assertion that this to quantify because of large natural the temporal distribution of assumption may cause an overestimate variations and other ecological forces. populations. The purpose of the models in pore water concentrations in areas The known disturbances that enhance is to evaluate effects of spills small where bioturbation is small, the dilution productivity in ecosystems are natural enough that they do not significantly of contaminants over the assumed depth events to which the ecosystem adapts alter ecosystem structure and dynamics. of 10 centimeters could underestimate rather than hazardous substance spills. The Department believes it is reasonable pore water concentrations and injuries. The selection of only the upper 75th to assume stable temporal distributions Comment: Some of the commenters, percentile of the LC50 and EC50 data and that such an assumption is not including one of the independent would arbitrarily exclude toxicity data inconsistent with actual environmental technical reviewers, thought the food that may be representative of all conditions during small spills. web model was crude. For example, the sensitive and nonsensitive organisms in Therefore, the models continue to independent technical reviewer 20596 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations questioned the assumption that all biota of losses even when hunting is Response: The models include fishing are equivalent as food sources. Another prohibited. Commenters also criticized and natural mortality rates that apply to commenter stated that the model the use of uniform annual hunting stocks, which may move seasonally. The provided only a rough approximation of mortality rates that do not assume any rates apply to the entire population of upper trophic-level production losses particular underlying daily patterns that fish within the provinces occupied by a attributable to spill-related reductions in would produce such rates. given stock no matter whether they are primary productivity. Response: The type A models present or absent from particular Response: The Department calculate lost catch based on a standard locations at different times of the year. acknowledges that the food web model fisheries model. See Section 4.5.1, Comment: One commenter thought is generalized for all aquatic habitats, Volume I of the NRDAM/CME and that the fish biomass figures used in the but believes it is reasonable for the NRDAM/GLE technical documents. calculation of predation rates should purposes of the NRDAM/GLE and Fishing mortality is an instantaneous reflect the entire stock, not just the NRDAM/CME. The food web model rate, the coefficient of an exponential, exploitable stock biomass. provides a reliable approximation of first-order ‘‘decay’’ curve. The nature of Response: The models do, in fact, use spill-related upper trophic-level this equation is that an instantaneous the total stock biomass in these production losses due to lost primary fishing mortality rate of one corresponds calculations. productivity. The Department believes to an annual harvest of 63 percent of the Comment: A few commenters noted that development of a more standing stock abundance present at the that the yield model assumes that the sophisticated, geographic-specific food beginning of the year. The models biomass of each fish species is web model would not significantly account for growth of animals over the uniformly distributed over the entire improve the reliability of the final year they are harvested. Thus, the province in which it is found, while the damage figure. harvest may exceed the standing stock figures in the database reflect the actual Comment: One of the independent biomass present at any given time if the distribution of the stock. The technical reviewers thought that the growth rate of the species is high. An commenters further noted that if a consumption rate parameters contained annual harvest rate of 63 percent of species did not extend throughout the in the food web model should vary standing stock abundance at the entire province, then this assumption seasonally. beginning of the year is not equivalent would lead to an overestimate of loss of Response: Seasonal changes in lower to a 63 percent catch of all the fish yield. trophic-level production rates and in species stock cumulatively available Response: The Department chose temperature already partially provide a throughout the year. The fishing province boundaries to minimize this seasonal effect in the models. The mortality rates assumed in the database source of error in the models. Department does not believe that further are based on best available fisheries Additionally, there are three sub-areas refinement would significantly improve statistics estimated by NMFS and State (habitats) within each province with the reliability of the final damage figure. fisheries management agencies. unique fishery biomasses. See Section I. Catch and Bag Losses The models apply hunting mortality 6.3, Volume I of the NRDAM/CME rates to a population, i.e., a stock or technical document. Comment: Several commenters group of interbreeding animals. See Comment: A few commenters raised addressed the methods used to translate Section 4.5.3, Volume I of the NRDAM/ questions about the interplay between fish mortality and wildlife mortality CME and NRDAM/GLE technical the user-supplied information on into reductions in catch and bag. documents. The hunting mortality rate closures and the models’ spill-related Commenters noted that a correct in the models is simply the probability mortality predictions. The commenters translation was needed because of being hunted successfully at some noted that the models do not adjust mortality is not a sufficient basis for time and place over one year of life. fishing mortality rates when there is a damages if it does not result in a Therefore, the models need not consider closure. Commenters suggested that quantifiable reduction in the services exactly where or when the animals are users be allowed to make such an provided by the resources. Some actually taken during a given year or adjustment to avoid underestimating commenters thought the proposed whether hunting seasons are open or recovery periods. single-species approach to modeling closed at the spill site. The Department Response: The Department believes fishery complexes and ecosystems was derived the hunting mortality rates from the assumption of a constant fishing simplistic but adequate for the purposes tagging studies. A considerable amount mortality rate is reasonable for purposes of the type A models. Other commenters of literature shows that birds and of calculating recovery periods after argued that predictions of catch and bag mammals have similar hunting minor spills. Only very large changes in losses were wholly unreliable and mortality rates per animal (or per 100 fishing would be measurable in the resulted in inflated estimates of service animals) throughout North American population over the long term. For losses. populations due to migratory behavior minor releases, it is unlikely that Some commenters stated that the and biological limits on productivity. extended closures will occur. models sometimes predict a catch loss See Section 4, Volume IV of the Comment: One commenter questioned that exceeds the prediction of total NRDAM/CME technical document. the yield formulas in the proposed mortality. These commenters asserted Therefore, the models use per-animal NRDAM/CME technical document and that inaccurately high fishing rates in rates that are justifiably constant in time offered alternative formulas. The the proposed NRDAM/GLE lead to the and space. commenter noted that the proposed estimation that 50 to 70 percent of some Comment: Some commenters thought equations appeared to be missing the fish species would be caught in a single it was inconsistent for the models to final year’s contribution to yield. year. Commenters complained that lost assume that a fish species may be Response: The Department has wildlife bag predictions failed to present or absent in certain seasons reviewed the alternative formulas account for regional differences. Some while also assuming that fishing and offered by the commenter and has commenters thought that failure to natural mortality rates are constant and concluded that they are more precise. consider hunting regulations would act continuously on the population The Department has modified the final inappropriately result in the calculation throughout the year. versions of the models accordingly. The Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20597 models continue to calculate losses Volume I of the NRDAM/CME technical types of aquatic beds necessitate the through the last year after the spill document, and Sections 5 and 9, development of distinct per-unit effects where killed individuals would Volume I of the NRDAM/GLE technical restoration costs for each type. have lived and died naturally. The document. Comment: Several commenters said Department has clarified the language of Sediment capping in deep water is that the models grossly overestimate the the technical documents on this point. technically possible. The models size of the areas to be restored because See Section 4.5.1, Volume I of the calculate damages based on the cost of they use unrealistically low toxicity NRDAM/CME and NRDAM/GLE capping only if toxicity in sediments of thresholds. To illustrate this point, technical documents. an entire grid cell is so persistent that commenters noted that the models recovery following capping would be assign a toxicity threshold to cupric J. Habitat Restoration faster than natural recovery. The chloride that is less than 1/40th its Comment: Several commenters Department believes that in such cases, normal concentration in saltwater. thought that the proposed methodology sediment capping is appropriate. The These commenters argued that a spill of for calculating habitat restoration costs Department has attempted to account cupric chloride would have to spread was so flawed that the Department for site-specific factors relating to over a huge area before it would should eliminate such damages from the offshore capping by including cost dissipate below the toxic threshold, models. These commenters identified figures that take into consideration the which would then necessitate four major flaws in the methodology different distances that equipment and restoration over a similarly huge area. that, taken together, render it invalid: (1) sediments must be transported. Response: The toxicity thresholds The models’ acute toxic threshold is The Department also carefully included in the models merely serve as unrealistically low, leading the models evaluated a wide range of possible switches to end a model run. When the to overestimate the size of the areas habitat restoration actions, including physical fates submodel determines that needing restoration; (2) the models often replacement of the affected resources concentrations of the released substance overestimate the time necessary for with other resources, acquisition of are below the threshold level for that natural recovery; (3) the models select equivalent resources, natural recovery, substance in all locations, it stops specific physical restoration measures and other technologies. Based on this running. The threshold is the without regard to their feasibility; and evaluation, the Department believes that concentration that would cause one (4) the Department overestimated the it has identified the most cost-effective percent mortality at 30 degrees Celsius fixed costs for small spills. types of habitat restoration that can after 96 or more hours of exposure in Response: As discussed in more detail reasonably be included in models of this the most sensitive species group. When below, the Department believes that the type. calculating habitat restoration costs, the methodology for calculating habitat With regard to off-site restoration, the restoration submodel will examine all restoration costs is reliable. Therefore, Department acknowledges that after areas over which the spill has spread the Department has retained the recovering damages through the use of but will only calculate the cost of active methodology in the final versions of the a type A procedure, trustees may well restoration if it would result in lower NRDAM/CME and the NRDAM/GLE decide that the recoveries are best spent compensable value than natural subject to the revisions described in on off-site actions, such as the purchase recovery. Compensable value is Section VI.B of this preamble. and enhancement of nearby property to generated only when there is mortality Comment: Several commenters said provide equivalent habitat to that lost. or loss of production. The biological the Department had failed to consider However, the availability of nearby land effects submodel calculates mortality adequately the feasibility or the cost- of the same habitat type as that injured, and loss of production not on the basis effectiveness of the specific restoration the cost of any available land, and the of the toxicity thresholds but rather on actions included in the models. For need for and feasibility of any actions to the basis of mean LC50 and EC50 example, commenters argued that make the land equivalent in quality to values. Therefore, the toxicity sediment capping in deep water is not that lost are all highly site-specific thresholds do not determine the extent a proven technique and that the cost of factors. The Department does not of habitat restoration. Further, the such capping is highly site-specific. believe that adequate data are currently models will only include the cost of Therefore, these commenters thought available to include off-site restoration active restoration in the final damage that deep-water capping should be among the list of restoration actions figure if such active restoration passes eliminated from the models. evaluated by the models. With regard to the cost-benefit test discussed below. Commenters also thought that the partial rehabilitation, the Department Comment: There were several Department had failed to substantiate its has improved the resolution of the comments concerning the models’ claim that the types of habitat NRDAM/CME by a factor of four, which predictions of recovery times. One of restoration actions considered by the allows the restoration submodel to the independent technical reviewers models are in fact the most cost- consider restoration of much smaller suggested that the recovery times be effective. Some commenters, including geographic areas. modified. Another commenter noted one of the independent technical Comment: One commenter noted that that recovery times are very uncertain reviewers, thought the Department had techniques for reestablishing freshwater and that relatively small adjustments unduly limited the range of restoration macrophyte beds of wild celery have can have significant effects on estimates actions the models consider, and should been well demonstrated and should be of total losses. Several commenters said have included off-site restoration, separately included in the NRDAM/ the proposed restoration submodel partial rehabilitation, and other GLE. generally overestimated the time mitigating actions. Response: The NRDAM/GLE does required for natural recovery. Some Response: The Department has evaluate actions to restore wild celery commenters stated that the NRDAM/ concluded, based on an extensive beds but does so through consideration CME appeared to incorporate recovery literature review, that all restoration of a single type of restoration action for times for seagrass beds and coral reefs options considered by the models are all aquatic bed habitats. The Department that exceeded the literature values listed technically feasible. For additional does not think the differences between in the proposed NRDAM/CME technical discussion see Sections 5 and 12, the techniques for restoring various document. Other commenters 20598 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations questioned the lack of data for saltmarsh recover the reasonable and necessary Response: The Department has wetlands and mudflats and criticized costs of an assessment. These costs reevaluated the habitat restoration the Department’s use of identical include ‘‘[a]dministrative costs and actions included for seagrass beds, recovery times for mudflats and sandy expenses necessary for, and incidental invertebrate reefs, and other structured beaches. to * * * restoration, rehabilitation, habitats and decided that in certain Response: The Department believes replacement, and/or acquisition of circumstances it would be technically that the scientific literature supports the equivalent resources planning.’’ 43 CFR feasible and more cost-effective to recovery times for seagrass beds, coral 11.15(a)(3)(ii). Therefore, trustees who perform restoration actions that are less reefs, saltmarsh wetlands, and mudflats use a type A procedure and wish to invasive than replacement of substrate. contained in the NRDAM/CME. Further, recover restoration planning costs may Therefore, the Department has revised the recovery periods included in the develop their own estimates of such the NRDAM/CME to include two NRDAM/CME for seagrass beds and costs and include them as assessment potential restoration actions for such coral reef are consistent with the costs in the demand presented to the habitats. Where the sediments are literature cited in the technical PRPs under revised § 11.91(a). sufficiently contaminated, the document. See Section 4.3.3.2, Volume Comment: One commenter was restoration submodel evaluates substrate I of the NRDAM/CME technical generally concerned about the quality of replacement or capping followed by document. the Department’s information-gathering replanting or reseeding of the vegetation Comment: One commenter questioned efforts on habitat restoration techniques, or invertebrate structure. Where the Department’s assumption that noting the lack of current references in sediments are not contaminated but reproduction of fish and wildlife species the technical documents. The mortality of the structural habitat has resumes normal levels as soon as independent technical reviewers occurred, the submodel evaluates toxicity is no longer present. recommended that the Department replanting or reseeding alone. The Response: The Department recognizes update the per-unit restoration cost data submodel evaluates each affected grid that substances may cause sublethal or included in the models. cell. See Section 12.2, Volume I of the chronic injuries that affect reproduction Response: NOAA conducted an NRDAM/CME technical document. after concentrations have dropped extensive literature search on natural Comment: One commenter thought below acutely toxic levels. However, the that the Department had inappropriately models do not attempt to address the resource restoration while developing guidance documents in connection with based freshwater wetland restoration effects of such sublethal or chronic alternatives for hazardous substance injuries. If trustees believe such injuries its natural resource damage assessment rulemaking under OPA. The Department releases on oil-related experiences. are likely to be significant, they should Response: The Department did not has updated the per-unit restoration consider conducting type B studies base freshwater wetland restoration for costs included in the models based on instead of, or in addition to, a type A hazardous substance releases on data procedure. information compiled through this relating to oil spills. In fact, data on Comment: There were a few NOAA effort as well as other recent freshwater wetland restoration arises comments about the inclusion of fixed information. Also, as discussed below, almost entirely out of non-oil restoration costs in the models. Some the Department has revised the habitat experiences. See Section 5.7, Volume I commenters, including some of the restoration actions evaluated for of the NRDAM/GLE technical independent technical reviewers, structured habitats (i.e., wetlands, document. thought that the fixed cost figure was seagrass, macroalgal, coral, mollusk, and Comment: One commenter noted that too low; other commenters thought it reef). removal and replacement of soils and was too high. One of the independent Comment: A few commenters thought vegetation is subject to failure and, even technical reviewers thought different that the costs of upland disposal of if ‘‘successful,’’ results in different fixed costs should be applied depending sediments in the proposed NRDAM/GLE habitat. on the type of habitat affected. inappropriately failed to factor in long- Response: The Department agrees that Response: Trustees who use a type A term operation and maintenance. removal of substrate and replanting can procedure will have to develop a Response: The model includes the result in failures and the emergence of restoration plan once they obtain per-unit costs that a commercial facility different habitats. The Department compensation for the natural resource would charge to accept sediment for developed recovery rates and per-unit injuries. See 43 CFR 11.93(a). The disposal. These costs are one-time costs restoration costs that account for such proposed models included a fixed cost charged by the commercial facility and, risks. of $18,300 to cover restoration planning thus, should include the facility’s Comment: One commenter objected to costs. The Department recognizes that anticipated long-term operation and the inclusion of washing and steam the extent of the restoration planning maintenance costs. Trustees would not cleaning as restoration alternatives, costs for each particular case may vary incur any additional long-term costs. noting that such actions caused injury dramatically. Such costs depend on Comment: Some of the independent during the Exxon Valdez response. whether the trustees intend to technical reviewers thought that the Response: The Department has implement the restoration actions NRDAM/CME incorrectly assumed that retained washing and steam cleaning as chosen by the model or develop other seagrass replanting and oyster reef a potential shoreline habitat restoration restoration actions. The costs also vary seeding would entail destruction and alternative in the NRDAM/CME. The depending on the complexity of the subsequent reestablishment of the entire Department agrees that washing and selected restoration actions. In light of habitat. These technical reviewers also steam cleaning cause injury but believes the highly site-specific nature of thought this assumption would produce that inclusion of such alternatives in the restoration planning costs, the a bias against invoking habitat model is appropriate subject to the Department has chosen to eliminate restoration because habitat restoration of decision criteria used by the models. them from the models. this nature will generally result in When the model evaluates these Nevertheless, § 11.15(a)(3) of the compensable value in excess of that alternatives, it assumes that the actions regulations, which is not changed by which would occur under natural will destroy the habitat. The model will this rulemaking, allows trustees to recovery. only select these alternatives if, Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20599 notwithstanding their deleterious computed by the final NRDAM/CME would have provided in the absence of effects, they nonetheless result in lower and the NRDAM/GLE are based on the release. See 43 CFR 11.70(a). The compensable value than natural demonstrable, rather than speculative, assimilation of pollutants is a real recovery. In coastal and marine losses. service provided by natural resources environments, the tidal flux creates a Assimilative capacity is an and is well-founded in scientific distinct shoreline habitat that is not ecosystem’s ability to repair itself by literature. Assimilative capacity will be present in the Great Lakes. Therefore, digesting, degrading, transforming, reduced whenever a release occurs. the NRDAM/GLE does not include absorbing, or otherwise eliminating the Releases use some of the assimilative shoreline washing and steaming. pollutants placed in it. The Department capacity of aquatic environments and so Comment: One commenter disagreed recognizes that there are contrasting long as the pollutants remain in the with the statement in the proposed views of the nature of assimilative environment, some portion of NRDAM/GLE technical document that capacity. The purist position is that no assimilative capacity—a service fish production is not negatively materials placed in aquatic provided by the natural resource—is affected by dredging. environments will ever simply lost. The Department does not agree that Response: The Department disappear. Some substances cannot be reduction in assimilative capacity is acknowledges, and the models broken down and will reenter and dependent on a subsequent release of recognize, that dredging of a habitat recycle through the ecosystem even if the exact same substance in the exact reduces egg and larval fish production they have no detrimental effects. Other same area. A release reduces in the dredged habitat to zero initially, substances may be completely digested assimilative capacity regardless of and then production follows vegetative in the ecosystem and transformed into subsequent spill events. and benthic recovery. The models harmless or naturally occurring Nevertheless, the Department simply assume that adult fish elements. This digestion, however, will recognizes that there are practical production is unaffected. consume some of the ecosystem’s limitations on measuring and K. Assimilative Capacity Restoration resources (e.g., dissolved oxygen) at the addressing assimilative capacity loss, expense of natural processes and particularly in the context of a Comment: Several commenters argued components of the system. Thus, standardized procedure for minor that assimilative capacity restoration following this purist approach, all releases. The issue, then, is not whether costs are not legally recoverable. A additions to a water body will change it there is a reduction in assimilative number of commenters thought that to a greater or lesser degree, and the capacity but, rather, the extent of the inclusion of damages for lost only way to ensure restoration of the reduction and the type of actions that assimilative capacity was overly equilibrium in the ecosystem is to are appropriate to restore the lost speculative. These commenters stated eliminate or remove all introduced assimilative capacity. As discussed that the presence of a spilled substance material. above, assimilative capacity can be seen only causes a meaningful reduction in Recognizing, however, that absolute as the ability to absorb pollutants up to assimilative capacity if the resource will removal of a discrete spilled substance a threshold where detrimental effects be required to assimilate more of a can be impractical, if not impossible, occur. The type A models focus on similar substance in the same area some experts have adopted a more injury to biological resources. Therefore, before the spilled substance degrades. pragmatic approach. Under this the threshold for meaningful loss of The commenters argued that the type A approach, the assimilative capacity of a assimilative capacity now built into the models merely assume that assimilative water body is usually viewed in relation models is mortality or loss of capacity has been reduced. Some of to some water quality standard or level production resulting in compensable these commenters thought that the of service. In other words, assimilative value. Releases that generate assumption of an actual reduction in capacity is the ability of a water body to compensable value related to mortality assimilative capacity is particularly absorb a particular pollutant up to the or loss of production have, by troubling in the case of minor spills. point where certain detrimental effects definition, exceeded the assimilative The commenters noted that if type B are realized. capacity of the ecosystem. In the case of procedures are used, trustees would be The Department carefully considered such releases, the models estimate the required to demonstrate an actual both the purist and pragmatic cost of restoring assimilative capacity. reduction in assimilative capacity. One approaches to assimilative capacity. The cost is based on the removal of a commenter noted that Ohio v. Interior Based on this consideration, the mass equivalent in toxicity to the had stated that a procedure that Department included in the proposed amount of the spilled substance that permitted unduly speculative type A models a methodology for remains after concentrations have fallen assessments would not constitute a best computing assimilative capacity below acute toxicity thresholds and available procedure under CERCLA. 889 restoration. After reviewing the public after any habitat restoration actions are F.2d at 462. comments, the Department has modified completed. Such removal will return the Response: The issue of whether lost that methodology to ensure that the aquatic system to a state that is assimilative capacity is a legally models more accurately quantify functionally equivalent to its baseline permissible category of damages was assimilative capacity losses. The condition. When there has been no decided and resolved by the Department Department believes that the modified acute mortality or loss of productivity, in 1986 and is beyond the scope of this methodology is appropriate for the models do not calculate any rulemaking. The only issues that the inclusion in the models. assimilative capacity restoration costs. Department is considering in this The Department does not believe that Comment: Some commenters asserted rulemaking are: whether the type A recovery of damages for lost assimilative that the models fail to take into account models adequately demonstrate a loss of capacity using the type A models is how spatial, temporal, and chemical assimilative capacity; and, if so, speculative. Trustees are authorized to factors affect the assimilative capacity whether the models accurately compute recover damages to restore injured and function of a resource. the costs for restoring that loss. The resources to their baseline conditions. Response: The Department has Department believes that the Baseline is measured in terms of the modified the models to account more assimilative capacity restoration costs services that the injured resources fully for the factors affecting 20600 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations assimilative capacity. The extent of believes that the methodology included capacity in a more cost-effective manner assimilative capacity reduction depends in the final type A models meets both than that predicted by the type A on how long a substance remains in the these standards. Biota are potentially models would have the option of environment. The proposed versions of exposed to the released substance funding type B procedures or pursuing the type A models did not consider throughout an entire biological an appropriate settlement with the degradation rates when computing lost province; therefore, the Department trustees. assimilative capacity. The Department evaluated potential dredge sites on a Comment: One commenter thought has modified the models to correct for province-wide basis. Within each that loss of assimilative capacity was a the degradation rate of the released province, the Department focused on legitimate basis for recovery but stated substance relative to the degradation National Status and Trends (NST) sites that damages for the loss should be rates of the contaminants found in the and International Joint Commission (IJC) characterized as compensable value sediment at the sites at which dredging areas of concern because there are rather than restoration costs. is presumed to occur. See Section 5.4.4, considerable data available on the sites Response: The Department believes Volume I of the NRDAM/CME and and because they are heavily that the damages for lost assimilative NRDAM/GLE technical documents. The contaminated. The higher the toxic mass capacity are correctly categorized as Department believes that this per volume at a site is, the cheaper is restoration costs rather than modification, along with the models’ the cost of dredging sediment equal in compensable value. Under the existing methodology for ensuring that the toxicity to the remainder of the released regulations, compensable value is the removed mass is equivalent in toxicity substance. Therefore, for each province, economic value that the public loses to the released substance, adequately the Department determined which NTS until the injured resources recover. See account for the different factors affecting site or IJC area of concern had the 43 CFR 11.83(c)(1). The type A models assimilative capacity. highest toxic mass per volume and used calculate damages for lost assimilative Comment: Several commenters that site to develop assimilative capacity capacity based not on economic value objected to basing assimilative capacity restoration costs. See Section 13, lost to the public but rather the cost of restoration costs on the cost of dredging Volume I of the NRDAM/CME technical restoring baseline services. projects outside the area affected by the document, and Section 9.4, Volume I of Comment: One commenter noted that release. The commenters complained the NRDAM/GLE technical document. the proposed NRDAM/CME in some that there was no relationship between Had the Department restricted cases predicts that more of the these dredging projects and the injured dredging to areas closer to the site of the substance will remain in the resources. One commenter asserted that release, the costs would likely have environment than was spilled in the inclusion of these damages was increased significantly, because the first place. motivated by a desire to circumvent the levels of contamination in those areas Response: This result was caused by normal appropriations process for would be lower than at NST sites and a coding error that the Department has funding dredging projects unrelated to IJC areas of concern. On the other hand, corrected in the final version of the the spill. Commenters, including one of had the Department considered NST NRDAM/CME. the independent technical reviewers, sites and IJC areas of concern well Comment: Commenters noted that, observed that at dredging sites with beyond the boundaries of the province contrary to assertions in the August 8, heavy contamination, less material in which the release occurred, the 1994, and the December 8, 1994, notices would have to be dredged than at sites dredging would be less clearly related to of proposed rulemaking, the models do with lower levels of contamination. the actual release. compute habitat restoration costs and These commenters noted that this The Department considered using the assimilative capacity restoration costs method generates dramatically different cost of preventing discharges from point for the same release. figures for different geographic areas sources, such as POTWs, as a possible Response: The models compute and that such differences were unfair basis for assimilative capacity assimilative capacity restoration costs because they were unrelated to the spill. restoration costs. However, the for any toxic mass that remains in the A few commenters stated that since the Department was unable to locate environment either because no habitat Department seems to believe that adequate data on point source restoration action is taken or because assimilative capacity is affected over discharges for toxic chemicals. habitat restoration does not fully remove extremely large areas, the models Commenters presented no additional the toxic mass. The preamble and should base damages on the lowest information that would enable the technical documents have been dredging cost for any of the provinces. Department to develop assimilative clarified. See Section 5.4.4, Volume I of Some commenters, including one of capacity restoration costs based on the NRDAM/CME and NRDAM/GLE the independent technical reviewers, reducing point source discharges. technical documents. also argued that it would be more cost- With regard to allowing PRPs to Comment: One commenter noted that effective to calculate damages based on develop alternative methods of restoring there are now 43, not 42, IJC areas of prevention of wastewater discharges lost assimilative capacity, the objective concern in the Great Lakes. from point sources, such as publicly of the type A models is to provide a sum Response: At the time that the owned treatment works (POTWs). certain on an inexpensive, expedited proposed NRDAM/GLE was being Another commenter suggested that the basis. Allowing PRPs to develop developed, there were only 42 IJC areas rule allow PRPs the option of alternative restoration methods, of concern. As more IJC areas of concern determining and implementing more providing trustees with an appropriate and NST sites are identified, the cost-effective methods of restoring lost opportunity to evaluate the feasibility Department will consider updating the assimilative capacity rather than paying and adequacy of the PRPs’ proposal, and models in future biennial reviews. the damages calculated by the models. giving the public a chance to review the However, it was not feasible for the Response: The Department agrees that proposal could undermine this Department to revise the NRDAM/GLE the method for restoring lost objective. Where the models predict to account for this one additional site assimilative capacity should be significant assimilative capacity within the available time frame. reasonably related to the actual release restoration costs, PRPs who believe that Comment: One commenter questioned and cost-effective. The Department they could restore lost assimilative the use of standardized sediment LC50s Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20601 based solely on bulk sediment commercial suppliers and used the Response: The scenario does not concentrations. actual market prices of acquiring such result in a net loss of fish and wildlife Response: The LC50s used in the species. The Department believes that because the model calculates a loss and models are for pore water this approach adequately ensures that allows only one-to-one replacement, concentrations, not bulk sediment the restoration costs in the model are with correction for restocking survival, concentrations. realistic and reasonable. The of missing individuals. The Department Comment: One commenter stated that Department has added Table 12.7 to has clarified the technical document. the proposed NRDAM/GLE generated Volume I of the NRDAM/CME technical See Section 5.4.3, Volume I of the inappropriately high assimilative document to present the data obtained NRDAM/CME technical document. capacity restoration costs for releases of from the International Animal Comment: One of the independent metals. The commenter thought these Exchange, Inc. technical reviewers noted that the inappropriate costs resulted from Bald eagles and other raptors have proposed NRDAM/CME technical underestimating the rate at which been restored by hand-rearing document stated that only fish that metals attenuate in the Niagara River hatchlings in a number of States. The would be caught are restocked in the and Lake Ontario. The commenter models use the same costs for all raptors model. The technical reviewer thought stated that metals fall to the bottom, are because the activities and effort required that all fish killed should be restocked, buried, and pose no toxicity threat. are similar for all species. The eagle not just those ultimately caught. Response: As discussed in Section restocking cost may be considered a Response: The models assume that all VII.G of this preamble, the Department general figure for all raptors. fish and shellfish killed are restocked, if has eliminated all pure metals from the The Department has revised the stocks are available. The technical chemical database. For metal calculations for fish restocking costs in document has been clarified. See compounds, the Department believes the NRDAM/CME. The proposed Section 5.4.3, Volume I of the NRDAM/ that the NRDAM/GLE adequately NRDAM/CME used an average size for CME technical document. accounts for attenuation. The model all salmon species. The final model uses Comment: One of the independent calculates the fate of the released species-specific parameters for salmon technical reviewers thought that the substance by partitioning the dissolved in each of the three applicable models should grant habitat restoration fraction from the particulate fraction in provinces. See Table 12.6, Volume I of priority over restocking. both the water and the sediments. The Response: The models decide whether the NRDAM/CME technical document. LC50s used in the model for to invoke habitat restoration Comment: One commenter questioned assimilative capacity calculations are independently from the decision the assumed source of restocked limited to those for dissolved chemicals. whether to restock. Therefore, animals, noting that simply moving prioritization is not necessary. L. Restocking animals from one location in the wild to Comment: Several commenters another would still leave the public M. Consideration of Costs and Benefits questioned the reasonableness of the with a net loss. of Active Restoration methodology for invoking and Response: The Department believes Comment: Numerous commenters, calculating restocking costs. A few that translocation of animals in the wild including some of the independent commenters thought that the proposed may, under some circumstances, be an technical reviewers, criticized the NRDAM/CME should not include appropriate restoration action. However, models for failing to consider whether restocking costs for species, such as for purposes of the type A procedures, the various active restoration dolphins, polar bears, eagles, and the Department chose to consider only alternatives were warranted in light of alligators, that have never been and are restocking of captive-bred animals, the the relationship between the benefits of unlikely to be restocked after a spill. cost of which is generally lower than the those actions and the costs of the These commenters stated that including cost of translocation in the wild. See alternatives. Some commenters offered restocking costs for such species was Table 12.7, Volume I of the NRDAM/ examples where the models computed particularly troubling in light of the CME technical document. restoration costs that were millions of weakness of the model’s underlying Comment: One commenter thought dollars or hundreds of times greater estimates of mortality for these species. that it would be more appropriate to than estimated compensable values. Further, the commenters thought the consider predator control than Many commenters thought that the Department’s restocking cost estimates restocking for canvasback and redhead models should incorporate a decision for captive breeding programs, in some ducks in the Great Lakes. rule to screen out restoration actions cases, came from unpublished sources Response: After recovering damages that would impose grossly and lacked real-world precedent. The through the use of a type A procedure, disproportionate costs. commenters noted, for example, that trustees may well decide that the Response: As it indicated in the there was no reason to assume that recoveries are better spent on predator March 25, 1994, type B rulemaking, the osprey and raptors cost the same to control rather than restocking. However, Department believes that the restock as eagles. Finally, another the feasibility, effectiveness, and relationship between costs and benefits commenter considered the salmon methods of predator control are highly is an important factor in selecting an restocking costs included in the site-specific. The Department does not appropriate restoration action. See 59 proposed NRDAM/CME to be believe that adequate data are currently FR at 14271. The Department unrealistically high. available to include predator control acknowledges that the proposed rules Response: The Department agrees that among the list of restoration actions and models did not explicitly address it is highly unlikely that trustees would evaluated by the models. this factor. After careful consideration, restock polar bears and, thus, has Comment: One of the independent the Department has revised the models deleted polar bear restocking costs from technical reviewers thought the to perform a cost-benefit analysis of the NRDAM/CME. The Department has restocking scenario described in the habitat restoration and restocking limited the rest of the restocking proposed NRDAM/CME technical actions. component to those species that are document would result in a net loss of If the relevant active habitat actually available from hatcheries or fish and wildlife. restoration alternative would reduce 20602 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations compensable value or if restocking is make this policy determination without Comment: Commenters objected to possible, then the submodel performs a the benefit of clear empirical standards the calculation of damages for lost cost-benefit test of these forms of active or legal precedents. The Department has recreational fishing on the grounds that restoration. The submodel compares the selected a ratio of ten-to-one based on the Department had failed to link the total costs of active habitat restoration its sense of fairness and reasonableness. injury to a reduction in services by and restocking against the measured Although the models do impose a using trip values rather than marginal benefits of such restoration (i.e., uniform standard, the Department (per fish) values. Other commenters, compensable value assuming natural continues to believe that a truly including some of the independent recovery minus compensable value ‘‘correct’’ cost-benefit ratio depends on technical reviewers, noted that all assuming active restoration). If the costs site-specific factors. The standard species are assigned to a single mode of exceed ten times the measured benefits, contained in today’s models is not recreational fishing. They stated that then the submodel assumes, for intended to suggest that a similar ratio data are available on percentage caught purposes of generating a damage figure, is appropriate in a type B context but by each mode, and recommended these that natural recovery, rather than active rather has been included in recognition data be included in the models to restoration, will be used to reestablish of the unique nature of the type A weight the recreational fishing values. baseline conditions. If the costs do not procedures. Even when trustees use Response: Though not fully explained exceed the measured benefits by ten type A procedures, if the ratio is in the proposed NRDAM/CME and times, then the submodel assumes, for exceeded, they may nevertheless NRDAM/GLE technical documents, the purposes of generating a damage figure, conclude that compensable values Department established the link that habitat restoration and restocking assuming natural recovery as between the injury and a reduction in will be implemented. determined by the models will not services by calculating average trip The Department determined in the provide adequate funding for necessary values (dollars of trip value per March 25, 1994, rulemaking that restoration actions. In such cases, kilogram of fish caught) and then although cost-benefit considerations are trustees are free to calculate damages adjusting these values by applying ratios an important factor in selecting an using type B procedures. of average trip values to marginal values appropriate restoration action when a Finally, the Department has chosen (additional trip value per fish caught) trustee uses type B procedures, the exact not to apply the cost-benefit test to that were obtained from studies that determination of how to evaluate this assimilative capacity restoration. The have compared these values. The factor should be resolved on a case-by- Department believes that assimilative Department has revised the technical case basis. Therefore, 43 CFR 11.82(d) capacity does have an economic value. documents. See Section 9.3.4, Volume I lists the relationship between costs and However, the Department is unaware of of the NRDAM/CME technical benefits as one of several factors that any economic study that calculates the document, and Section 6.3, Volume I of trustees must evaluate before selecting a consumer surplus or economic rent the NRDAM/GLE technical document. restoration action when using type B associated with assimilative capacity. The Department acknowledges that procedures. The Department continues Accordingly, the Department has not additional data on percentage of fish to believe that this is the most included assimilative capacity in the caught by different modes of fishing are appropriate approach in the type B cost-benefit test since its inclusion does becoming available. However, due to the context. However, in the type A context, not affect the calculation of fact that the majority of species in a where a model, rather than the trustees, compensable values. particular area tend to be caught by a dominant mode of fishing and that there determine the range and type of N. Damages for Fishing and Hunting are not always major differences restoration actions on which to base the Losses damage claim, and where the intent is between values in the various modes of to minimize the level of analysis that Comment: Some of the independent fishing, the Department does not believe trustees must conduct, the Department technical reviewers noted that closures that weighting recreational fishing believes it is appropriate to impose a to recreational fishing represent a values using data on percentages caught bright-line standard. change in access rather than in catch by each fishing mode would The Department has concluded that rate. These technical reviewers thought significantly improve the reliability of the evaluation of the costs and benefits that random utility models (RUMs) the final damage figure. As additional of active habitat restoration and should be used to value both the data become available, the Department restocking versus natural recovery changes in catch rates and in access, will reconsider this issue in future should focus on incremental costs and noting that RUMs are designed to biennial reviews. benefits. Therefore, the models compare capture substitution across sites. Comment: One commenter noted that, the total costs of active habitat Response: The Department in an attempt to maximize total utility, restoration and restocking against acknowledges that recently evolved anglers tend to reduce the number of compensable value assuming natural techniques for resource valuation could fishing trips they take as the marginal recovery minus compensable value potentially improve the calculation of utility from fishing falls in response to assuming active restoration. damages in the models. However, a reduction in the catch rate. This When determining what an inclusion of such techniques would commenter argued that the models appropriate cost-benefit ratio would be require considerable additional work, should, therefore, account for in the type A context, the Department including the development of a RUM reductions in participation in addition considered the dicta in Ohio v. Interior describing recreational choices across to reductions in catch. The commenter suggesting three-to-one as a possible the broad geographic regions covered by suggested that the models estimate ratio. See 880 F.2d at 443–44, n. 7. the models and a database containing reductions in participation for spills However, the NRDAM/CME and the parameters required as inputs to the that exceed some given threshold NRDAM/GLE quantify only a very RUM. The Department has concluded volume. narrow range of compensable values. that such additional work is not feasible Response: The Department believes Thus, the Department does not believe at this time. The Department may that, while participation in fishing that a three-to-one ratio is appropriate. reconsider this issue in future biennial activities may be affected by moderate Therefore, the Department was left to reviews of the models. or large-scale spills, small spills are Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20603 likely to affect primarily the quality of rulemaking. HEA is currently not listed inclusion in the models of damages for such activities. Specifically, the as one of the type B methodologies for loss of commercially harvested fish and Department believes that the principal calculating compensable value, furbearers. These commenters rejected effect of small spills on recreational although the regulations do allow use of the explanation that inclusion of anglers is a reduction in catch rather additional unlisted methodologies if damages for such losses was designed to than a reduction in fishing trips. The they meet certain criteria. The compensate the public for lost economic commenter appears to agree with this Department is conducting a biennial rent. The commenters noted that the position by suggesting that the models review of the type B methodologies and government does not in fact charge rent account for reductions in participation will be examining the use of HEA in for commercial harvests and concluded for spills over a given threshold size. that context. The Department believes that the public, therefore, does not incur However, where participation is that inclusion of HEA in a type A any loss of economic rent. Commenters reduced, trustees may conduct procedure should await the resolution argued that the models were not supplemental type B studies. of the biennial review of the type B capturing the public’s lost economic Comment: One commenter thought procedures. Also, the availability and rent but rather were inappropriately that the models inappropriately cost of obtaining habitat equivalent to calculating the commercial users’ assumed that species that lacked catch that injured is highly site-specific. The private losses, which are not recoverable data had no recreational value. Department currently does not have as natural resource damages under Response: The Department recognizes adequate data to incorporate HEA into CERCLA. The commenters cited Satsky that there may be species for which the models. v. Paramount Communications, Inc. for catch data are not available that Comment: Commenters objected to the proposition that trustees may only nevertheless have recreational value. the method used to value lost bring claims ‘‘for injuries to interests However, the only fish-related subsistence fishing. The commenters which all citizens hold in common.’’ 7 compensable value that the models stated that the proposed NRDAM/CME F.3d 1464, 1470 (10th Cir. 1993). The compute is for lost harvests. Without does not clearly define subsistence commenters argued that private catch data, the models cannot determine anglers and inappropriately assumes economic interests, such as commercial lost harvests and, thus, cannot compute that the full value of the subsistence losses, are not interests that all citizens compensable value. If an injured fish resource is lost without considering hold in common. Citing various floor species has values unrelated to harvest, substitutes. In addition, the commenters debates on the Superfund Amendments then trustees may conduct supplemental argued that the proposed NRDAM/CME and Reauthorization Act, the type B studies to capture those values. measures subsistence loss by the gross commenters argued that Congress Comment: A few commenters, cost of an alternate food supply (rather intended the double recovery including some of the independent than considering net subsistence losses) prohibition to bar natural resource technical reviewers, thought that the and adjusts the costs to account for damage claims for losses that are subject lost recreational fishing and hunting supposed differences in protein between to private recovery. Commenters also values used in the models were store-bought and wild-harvested fish noted that if damages for such losses are outdated. based on a study of birds, not fish. retained in the models, then serious Response: The Department has not Several commenters thought that double recovery problems arise because updated the recreational fishing and inclusion of damages for lost commercial users will assert hunting values in the models. The subsistence fishing was legally overlapping claims. Department will revisit this issue during impermissible. On the other hand, one Response: The type A models include the next biennial review. of the independent technical reviewers damages for lost commercial harvests in Comment: One of the independent noted that subsistence hunting, not only order to capture lost economic rent. The technical reviewers questioned why the subsistence fishing, is significant in issue of whether lost economic rent is hunting values included in the Alaska and should be included in the a legally permissible category of proposed models did not account for the model. damages was decided and resolved by effects of changes in effort. Response: The Department the Department in 1986 and is beyond Response: The Department is not acknowledges that the proposed the scope of this rulemaking. The only aware of any evidence that effort NRDAM/CME failed to clearly define issues that the Department is changes in cases of minor spills. subsistence anglers, failed to consider considering in this rulemaking are: Comment: Some of the independent substitutes, and inappropriately whether economic rent is, in fact, technical reviewers recommended that measured subsistence loss as the gross generated by commercially harvested the Department include habitat cost of an alternate food supply. All of species; if so, whether the type A equivalency analysis (HEA) in the these shortcoming raise significant models correctly calculate any loss of models. questions about the reliability of the that economic rent resulting from Response: HEA is a method of model’s calculation of compensable releases covered by the models; and determining damages for interim losses value for subsistence loss. Data are whether the rule adequately protects that does not require the explicit unavailable at this time to correct these against double recovery. calculation of the economic value lost problems. Therefore, the Department In the preamble to the original type B by the public. Instead, HEA bases has decided to delete subsistence losses rule, economic rent is defined as ‘‘the damages on the cost of obtaining or from the NRDAM/CME. Because the excess of total earnings of a producer of creating additional acreage that would Department has decided to delete a good or service over the payment provide the same habitat services as that subsistence losses for technical reasons, required to induce that producer to lost pending recovery of the injured it is not necessary for the Department to supply the same quantity currently resources. While HEA has merit, the address the legal permissibility of being supplied.’’ 51 FR at 27691. In Department has elected not to pursue its trustees recovering natural resource other words, economic rent for inclusion in the type A models at this damages for subsistence losses. commercially harvested resources is the time. The use of HEA to compute Comment: Some commenters, fee that commercial harvesters could compensation for interim losses is an including some of the independent pay to the government and still find issue that extends beyond this technical reviewers, objected to the harvesting economically feasible. 20604 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

Commercial harvesters invest capital change. Also, total biomass effects economic rent. However, in some cases in equipment (e.g., gear, traps, and should be limited for minor spills, thus commercial harvesters may not have a boats). This capital could have been it is unlikely that there will be long-term private cause of action or their liquidated and put to another use, such effects on the catchability of resources. recoveries may be subject to geographic as investment in a bank. Therefore, Finally, the Department believes it is or temporal limitations. For example, commercial harvesting is worthwhile reasonable to assume for minor spills commercial harvesters may be limited to only if the harvester receives a price for that the same number of commercial recovering damages incurred during the the harvest that both covers labor and harvesters will continue to expend the period of formal closure, or incurred in fuel costs as well as provides a same amount of economic resources to the area closed or in the area in which reasonable return on capital. To the conduct harvests and that the markets fish were directly exposed to the extent that the harvester receives a price for the necessary labor and capital released substance. See, e.g., Golnoy that exceeds costs plus a reasonable inputs to commercial fishing are Barge Co. v. M/T Shinoussa, Civ. No. H– return on capital, the government could competitive. Therefore, the type A 90–2414, 1993 WL 735038 (S.D. Tex. charge a fee and the harvester would models compute damages based on the Aug. 17, 1993). In other cases, continue to engage in harvesting. Thus harvesters’ forgone revenue, which is commercial harvesters may choose not economic rent is generated. the market price the harvesters could to bring private causes of action. If The Department believes that have received at the time the resources commercial harvesters do not obtain economic rent is being generated by would have been harvested. The direct full compensation, then the commercially harvested fish and Department believes that this figure will public’s interest is not satisfied and the wildlife. The one situation in which capture lost economic rent. trustees may bring a claim for lost economic rent is clearly eliminated is With regard to potential double economic rent. when natural resources are exploited to recovery, the Department acknowledges For minor releases where damages the point that all profits, including that in some cases commercial may be relatively low and data economic rent, have been competed harvesters may bring private causes of establishing injury and causation may away. This situation arises when action that include economic rent. As be difficult to obtain, the Department commercial harvests are not regulated noted above, resource managers believes that it is unlikely that and, thus, harvesters have free and generally do not charge fees to capture commercial harvesters will go to the unlimited access. Economic theory economic rent; therefore, when expense and trouble to pursue a legal predicts that in such cases harvesters commercial harvesters sell their claim. Therefore, the Department has will ignore both the value of the harvests they obtain a profit that retained the calculation of lost resources for future use as well as the includes economic rent. Under OPA, economic rent in the models. However, costs of crowding. Fisher, A.C., commercial harvesters have a specific to prevent double recovery, § 11.44(d) Resource and Environmental private cause of action. CERCLA does provides that if the trustee is aware of Economics, New York: Cambridge Univ. not grant commercial harvesters a reliable evidence that a private party has Press, 1981. private cause of action. However, some recovered damages for commercial One way of preventing this situation commercial harvesters, such as harvests lost as a result of the release, and generating economic rent, is to commercial fishermen in coastal waters, the trustee must eliminate from his or charge fees. Currently, resource probably do have private causes of her claim any damages for such lost managers do not generally charge fees action for hazardous substance-related harvest that are included in the lost except to cover administrative costs of injuries under State law or common economic rent calculated by the model. processing permits. See, e.g., Magnuson law. When commercial harvesters bring When the Assessment Plan is made Act, 16 U.S.C. 1854(d). However, a claim for lost profit it will most likely available for public review and resource managers do regulate include economic rent. Therefore, if comment, PRPs and commercial commercial harvesting through limits trustees also bring a claim for lost harvesters will have an opportunity to on the gear that may be used, limits on economic rent there will be a potential alert trustees to any private actions for the length of the harvest season, catch double recovery problem. lost commercial harvests. restrictions, tradeable permits for The governmental regulation of Comment: A few commenters, limited entry or individual catch quotas, commercial fish and wildlife harvest including some of the independent and other programs. For example, implies a public concern that these technical reviewers, thought that the NMFS has recently established a pilot resources be managed in order to prices used to calculate damages for lost program to buy back fishing permits to sustain their contribution to economic commercial harvests were invalid restore stocks of cod, haddock, and productivity. The public’s value for because they did not account for flounder in the Atlantic Ocean. These commercial harvesting is further seasonal and regional variations. programs are designed to protect the reflected in express policy statements Commenters also stated that the data resources for future use. The that the government is committed to used were from 1984 through 1988 and Department believes that these programs promoting resources’ contribution to should be updated. do in fact curb overexploitation of economic productivity. See, e.g., Fish Response: The models account for stocks and thus prevent profits and Wildlife Act of 1956, 16 U.S.C. seasonal and regional differences in (including economic rent) from being 742a. Therefore, when there are commercial prices to the extent possible driven down to zero. For example, reductions of commercial harvests, the given available data. In the Great Lakes, Alaska salmon and herring fisheries are public suffers a loss. pelt prices were available on a State-by- regulated with tradeable entry permits. If commercial harvesters can and do State basis. The Department used these The aggregate value in 1988 of all bring a private cause of action, then the prices to develop average prices for each permits in the salmon, herring, and harvesters may be fully compensated of the Great Lakes. In the coastal areas, herring roe fisheries was $925 million. and the public’s interest in promoting pelt prices were available only on a Market prices are largely set on a commercial harvests may be satisfied. If regional basis. national or international basis. harvesters are compensated for full At the time the Department performed Therefore, in the case of minor spills, it social losses, then trustees should not the bulk of the work on the commercial is unlikely that market prices will recover separate damages for lost fisheries component, 1984 through 1988 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20605 was the most recent 5-year period for Wildlife viewing is one of the most using Loomis et al. (1989) and Cooper which final statistics were available for significant direct use services that and Loomis (1991) to establish the the offshore zone in which the catch wildlife provide to humans. Inclusion of relationship between changes in occurred (rather than ports where lost wildlife viewing damages in the wildlife seen and changes in value and harvest was taken). The Department type A models necessitated that the by using FWS’ National Survey of decided to average the figures over a Department draw conclusions about the Fishing, Hunting, and Wildlife- five-year period to eliminate short-term relationship between changes in Associated Recreation to establish total variability. The Department believes wildlife populations and changes in the viewing values for particular species. that the commercial fishing statistics perceptions of wildlife by viewing The Department first estimated the total currently incorporated in the models are participants. There is no known value of wildlife viewing at ocean- or reliable. However, as additional data empirical research that indicates how lake-side for an entire State. Then the become available, the Department will participants perceive changes in Department allocated this total value consider updating the models during wildlife populations. The proposed among species and wildlife individuals future biennial reviews. models assumed that a given percentage within species that reside along the reduction in wildlife populations results State’s ocean- or lake-side. For further O. Damages for Lost Wildlife Viewing in the same percentage reduction in the discussion of this methodology, see Comment: One commenter supported wildlife seen by participants. Section 8.4, Volume I of the NRDAM/ the proposed approach for calculating The Department has determined that CME technical document, and Section damages for lost wildlife viewing as percentage reductions in wildlife 6.4.1, Volume I of the NRDAM/GLE reliable and reasonable. However, most viewing perception could be lower or technical document. commenters criticized the approach. higher than the percentage reduction in The Department recognizes that the Commenters noted that the Department wildlife populations. For example, a per-animal viewing values assigned by itself appeared to have serious wildlife population may consist of 100 the models for some species vary widely reservations about the approach. A animals yet the public may only by province. However, the Department number of commenters thought that the perceive, on average, 50 of those has concluded that these variances are approach would consistently animals. If a spill were to kill 50 percent not errors that need to be corrected but, underestimate damages; others thought of the population, then the public’s rather, reflect actual and relevant that damages would be overestimated. perception of the population would be regional differences. The value that the Some commenters stated that the reduced by 20 percent if the 50 killed public derives from viewing a particular Department’s methodology for animals included only 10 of the animals animal in a particular area depends on calculating wildlife viewing losses was the public normally sees. However, if how many people engage in wildlife so unreliable that such losses should be the 50 killed individuals included 30 of viewing in that area and how many deleted from the models. the animals the public normally sees, animals of that type there are to view in then the change in perception would be that area. Therefore, the models Several commenters thought it was 60 percent. Therefore, in the absence of appropriately contain relatively low per- incorrect to assume that a given empirical evidence on the subject, the animal values for species that are reduction in wildlife population would Department has decided to assume that abundant and for areas with low produce a comparable reduction in the percentage reductions in wildlife participation in wildlife viewing. wildlife seen. Thus, the commenters viewing perception are equal to Conversely, the models contain higher concluded that the Department was percentage reductions in wildlife per-animal values for less abundant unable to link the injury to a reduction populations. species and for areas with higher in services. The commenters further When determining how a given wildlife viewing participation. stated that the calculation used reduction in the number of animals Not only are the regional variances in inappropriate assumptions and studies viewed affects the value the public per-animal values appropriate, but also, to calculate the value of a wildlife derives from viewing, the Department such variances do not lead to unrealistic viewing trip on a per-animal basis. relied on the only available studies that differences in the damage figures A few commenters thought the values identified a marginal value for wildlife calculated by the models for particular appear arbitrary since they vary so viewing (Loomis et al. (1989) and releases. When determining damages for widely by province. One commenter Cooper and Loomis (1991)). The a particular release, the models suggested that the wide variations in Department believes that these studies calculate damages for lost wildlife province values be eliminated either are reliable. The Department viewing based on the probability that through the use of uniform average acknowledges that one of the studies the release will kill wildlife. The values or through the deletion of dealt with trips that were not taken probability that an animal will come extreme values. On the other hand, primarily for the purpose of wildlife into contact with, and be killed by, a some commenters thought the models viewing. However, contrary to the release is directly related to the wildlife did not adequately account for the assertions of some commenters, the abundance in the area affected by the variable characteristics of affected sites. studies specifically examined how release. In areas with low wildlife Response: In the notices of proposed changes in the number of animals seen abundance, minor releases would have rulemaking, the Department solicited affected the value of the trips. Therefore, a low probability of killing wildlife. comment on a number of aspects of the the wildlife viewing values used in the Therefore, although the per-animal proposed methodology for determining type A models do not reflect any other values in these areas may be damages for lost wildlife viewing. 59 FR non-viewing aspects of recreational significantly higher than in areas of high at 40328–29 and 63311–12. Based on its trips. abundance, the actual damage figure careful consideration of the comments it The biological effects submodel may not be. received, as well as its own quantifies wildlife mortality in terms of Comment: Some commenters reexamination of the models, the the number of animals killed. Therefore, contended that the methodology for Department has modified the the Department needed to develop per- calculating viewing damages relies on methodology and believes that it is animal viewing values. The Department assumptions that overstate the number sound. developed such per-animal values by of wildlife viewing trips to affected 20606 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations areas. Some commenters also claimed side county to include residents of areas to incorporate such losses into models. that the Department had used unreliable within an average one-way trip distance As more data become available, the survey data to derive per-animal from the provinces where injury Department may reconsider this issue in viewing values. Several commenters occurred. Statewide average future biennial reviews. Meanwhile, the thought the models used outdated data. participation rates were used in the rule allows trustees to conduct Response: The Department has NRDAM/GLE due to a lack of reliable supplemental type B studies to assess revised the wildlife viewing damage data at the county level. damages for such losses. component of the models to reflect more The Department recognizes that out-of Comment: Some commenters asked recent data. When developing the State visitors may experience viewing whether the models considered the proposed models, the Department used losses; however, adequate data are not effect of closures on wildlife viewing FWS’ 1985 National Survey of Fishing, currently available to incorporate such losses. Hunting, and Wildlife-Associated losses into models. As more data Response: The models do not address Recreation. This survey was updated in become available, the Department may the effect of closures on wildlife 1991. The Department has revised the reconsider this issue in future biennial viewing. The models only compute final models to reflect this update. FWS reviews. Meanwhile, the rule allows mortality-related wildlife viewing has conducted wildlife-related trustees to conduct supplemental type B losses. recreation surveys roughly every 5 years studies to assess damages for such P. Damages for Beach and Boating since 1955. The results of these surveys losses. Closures are widely disseminated and are relied Comment: Some commenters, upon both by governments and by including a few of the independent Comment: The Department received private individuals for a range of technical reviewers, suggested including several comments on the proposed purposes. The Department believes it is viewing losses incurred by individuals NRDAM/CME’s methodology for appropriate to use these surveys to under the age of 18. One commenter calculating damages for beach closures. determine participation rates for noted that the Department had relied on A few commenters thought that the wildlife viewing as well as the value of wildlife participation survey data Department had made unsubstantiated wildlife viewing trips. supplied by individuals 16 years or and questionable assumptions in Comment: A few commenters, older but used population data that only estimating beach visitation. Some including some of the independent included individuals 18 years or older. commenters, including one of the technical reviewers, suggested that the Response: The Department has independent technical reviewers, proposed models be expanded to revised the models to include viewing claimed that the Department had failed account for viewing losses incurred by losses experienced by individuals 16 to account adequately for differences in individuals other than residents of years of age and older. visitations and values associated with coastal counties. One commenter stated Comment: Some commenters, different beach types and different that in Michigan, regional populations including a few of the independent seasons. One independent technical are not concentrated either in lake shore technical reviewers, thought that spills reviewer stated that beach visitation is counties or at substantial distances could affect not only the quality of the highly variable within provinces, and inland and suggested that the NRDAM/ wildlife viewing trips but also the that more localized visitation data could GLE incorporate lost wildlife viewing number of trips taken. These be mapped in a GIS from survey data. on a two-county deep basis. One of the commenters thought the models should Response: The Department could not independent technical reviewers noted account for this effect. locate adequate data to develop separate that the absence of damages for lost Response: Adequate data are not per-person values for visiting Federal viewing by out-of-State tourists was a currently available to incorporate beaches versus non-Federal beaches. significant problem in Alaska. damages for lost participation in However, the Department believes the Response: The Department has wildlife viewing. Further, while NRDAM/CME adequately accounts for revised the NRDAM/CME to account for participation in wildlife viewing may be differences between the two types of impacts on the populations of coastal affected by moderate or large-scale beaches through the use of different States rather than just coastal counties. releases, minor releases, for which the visitation figures. A sample of monthly See Section 8.4, Volume I of the type A models are designed, are likely visitation data was taken from NRDAM/CME technical document. to affect primarily the quality of such representative beaches in each Wildlife viewing damage calculations in activity. As more data become available, economic province. This sampling was the NRDAM/CME rely on State-level the Department may reconsider this designed to account for differences in estimates of participation rates for issue in future biennial reviews. visitation that exist between economic wildlife viewing at the ocean. The Comment: A few commenters thought provinces. The Department also Department believes that it is more the models did not account for all collected separate visitation data for appropriate to apply these State-level species that had viewing value. National Seashores and other public participation rates to State populations Response: The Department believes beaches. The user is required to enter than to county populations in the that the species addressed by the the type of beach affected (National NRDAM/CME. models account for the vast majority of Seashore or other public beach) as an The Department has not applied the viewing values. input to the NRDAM/CME. Further, participation rates in the final NRDAM/ Comment: One commenter noted that before the compensable value submodel GLE to the entire State population due the deaths of migratory species could applies an average beach use value to to the existence of alternative recreation result in viewing losses in locations the estimated loss in beach use, the sites in other parts of the Great Lakes beyond the spill site and thought that submodel adjusts the value to account States. Instead, the Department has the models should account for such for seasonal variations. The NRDAM/ generally limited the participation rate losses. CME uses seasonal variations in the to the populations of lake-side counties Response: The Department duration of beach visits as a reasonable in the NRDAM/GLE. In a few instances acknowledges that releases can result in approximation of the seasonal variations involving very narrow counties, the off-site viewing losses; however, in beach use values. Data on the Department has gone beyond the lake- adequate data are not currently available duration of beach visits were available Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20607 for National Seashores, but not for other substitutes when valuing beaches. They value for coastal and marine waters in public beaches. Therefore, the recommended that values from the proposed NRDAM/CME. The Department applied the National appropriate studies be selected based on commenters stated that marine boating Seashore duration data to other public an understanding of the welfare is different from freshwater boating. beaches. For further discussion, see economics of substitutes. Specifically, Some commenters, including some of Section 10, Volume I of the NRDAM/ they expressed concern over the the independent technical reviewers, CME technical document. Department’s use of studies of loss of thought that the coastal regions of the Comment: Several commenters raised beach use over large regions. The United States were so heterogenous that concerns about valuation of beach technical reviewers thought that such applying one boating value to the entire closures in the proposed NRDAM/GLE. studies would not account for coastline of the United States was not Some commenters criticized the use of individuals’ ability to substitute one appropriate. studies of saltwater beaches to value beach for another within a given region Further, the commenters stated that Great Lakes beach use. A few and, thus, would not correctly capture the proposed NRDAM/GLE commenters stated that the studies the the value of particular beaches. inappropriately assumed that all boat Department used to value Great Lakes Response: The Department did use trips were evenly distributed along the beach use were outdated. Other studies that account for the effect of Great Lakes shoreline, which would commenters complained that the substitution. See Section 10.3.2, Volume result in an overestimate of damages. NRDAM/GLE used the same values for I of the NRDAM/CME technical These commenters also thought the Federal and non-Federal beaches. document. studies used to derive boating value in Response: In the NRDAM/GLE, the Comment: One of the independent the NRDAM/GLE were unpublished and per-day value of beach recreation is technical reviewers suggested that outdated, and inappropriate for the based on the average of several values losses on private beaches should be transfer of values. reported for general beach recreation. included. Response: The Department was The Department acknowledges that Response: CERCLA authorizes unable to establish the similarity of basing beach-related recreation values trustees to pursue claims only for marine boating to freshwater boating for on studies carried out exclusively at injuries to public resources, namely the NRDAM/CME. Therefore, the Great Lakes locations would have been those resources ‘‘belonging to, managed Department has eliminated the ideal. However, no such studies were by, held in trust by, appertaining to or calculation of lost boating values from available. Intuitively, beach recreation otherwise controlled by’’ the United the NRDAM/CME. on the Great Lakes combines some States, a State, or an Indian tribe. As to the NRDAM/GLE, the density of aspects of seashore beach recreation CERCLA sec. 101(16). Private beaches recreational boating is higher near ports. with some aspects of freshwater beach will generally not constitute public Thus, due to the greater likelihood of recreation. Therefore, the Department resources. Therefore, the rule only spills occurring near port facilities, the used a range of studies, including both allows trustees to use the type A models Department believes the even allocation studies of saltwater beach recreation as for public beaches. of boating trips used in the model could well as studies of freshwater beach Comment: One of the independent tend to underestimate the number of recreation. technical reviewers stated that the boating trips that would be affected by The Department believes that the data NRDAM/CME should be modified to a small spill rather than overestimate used are still the best available. If allow for the recovery of damages for the value. additional data on the value of beach- lost use of rocky shoreline. The Department does not agree that related recreation in the Great Lakes Response: The Department was the models calculate only upwardly become available, the Department will unable to identify sufficient data on the biased boating damages. In the NRDAM/ consider incorporating such data in the relative value of recreation on different GLE, lost trips are estimated using a NRDAM/GLE during future biennial shoreline types in coastal and marine formula that distributes the estimated reviews. environments to permit distinctions number of trips across the total area of Data limitations required that the between rocky and sandy shorelines. water covered by the near shore Department make assumptions Therefore, the models compute damages forecast. In some areas this may result concerning the distribution of monthly for lost use of all types of closed Federal in underestimates of the number of trips to non-Federal lake shores. The or State beaches; however, the models affected boating trips. For example, NRDAM/GLE assumes that the assign the same values regardless of areas near major ports or marina distribution is identical to the habitat type. The Department believes facilities are likely to have a higher distribution of monthly trips to National that this approach is reasonable in light density of boating trips than is assumed Lake shores. See Section 6.4.2, Volume of the geographic breadth of the studies in the NRDAM/GLE. Nevertheless, the I of the NRDAM/GLE technical used to develop the beach values in the Department believes that in those areas document. models. Further, although the August when type B procedures cannot be The Department could not locate 1994 proposed rule required trustees performed at a reasonable cost, trustees adequate data to develop separate per- who used the NRDAM/GLE to specify should have the option of using the person values for visiting Federal whether a closed beach was rocky or NRDAM/GLE. beaches versus non-Federal beaches. sandy, the model itself did not assign However, the Department believes the different values based on that Q. Judicial Review and the Rebuttable NRDAM/GLE adequately accounts for designation. Therefore, the Department Presumption differences between the two types of has revised the final rule to remove the Comment: Some commenters beaches because the per-person values requirement. supported proposed § 11.91(c)(2), and translate into different per-meter values Comment: Several commenters the Department’s related statements for Federal and non-Federal beaches. thought the models used unreliable regarding which elements of a type A Comment: Some of the independent boating area coefficients that were likely damage assessment can be challenged technical reviewers were confused by biased upward. The commenters following application of the NRDAM/ the discussion in the proposed technical complained about the use of freshwater CME or NRDAM/GLE in a specific case, documents on consideration of boating studies to determine a boating and which aspects of the rule (which 20608 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations incorporates the models) must be are reviewed—e.g., evidence in a has the legal authority under section challenged within 90 days of particular case that the computer model 301(c)(2) to promulgate proposed promulgation, as provided by section grossly overstates the number of affected § 11.91(c)(2), nor whether that section 113(a) of CERCLA. Proposed fish and wildlife. Some commenters accurately interprets CERCLA. § 11.91(c)(2) states that judicial review suggested that application of proposed The Department does note that some of a type A damage assessment shall be § 11.91(c)(2) would raise constitutional of the comments interpreting CERCLA’s limited to the trustee’s decision to use due process questions. rebuttable presumption provision the type A procedure and the incident- Finally, some of these commenters specific data supplied by the trustee. It objected to the provisions in proposed appear largely to read CERCLA’s further states that the decision to use the § 11.91(c)(2) that the rebuttable preclusive review provision out of the type A procedure and the incident- presumption applies to the trustee’s statute. Undoubtedly, Congress specific data collected by the trustee decision to use the type A procedure intended that PRPs have a meaningful receive CERCLA’s rebuttable and the data inputs. These commenters opportunity to rebut specific aspects of presumption. The commenters stated that CERCLA’s rebuttable a trustee’s case, but not if it is a ‘‘matter supporting this proposed provision presumption is granted only to the final with respect to which review could suggested that it would reduce the results of an assessment, not to have been obtained’’ in a challenge to potential for litigation and attendant intermediate steps such as the decision the regulations. CERCLA sec. 113(a). In delays to restoration, although they to use the type A procedures and the the case of the type A rules, the validity conditioned their support on how the data input selections. These of the regulations themselves is closely Department responded to their other commenters also asserted that the related to the content and workings of comments. Department had provided no criteria for the incorporated computer models. The Numerous other commenters strongly ensuring the accuracy and reliability of Department believes that section 113(a) objected to proposed § 11.91(c)(2), as site-specific data inputs, and that absent of CERCLA requires that challenges to beyond the Department’s authority and such regulatory criteria, the inputs aspects of the rule that are clearly as contrary to the two provisions in would not be entitled to the rebuttable discernible from the rule language, the CERCLA interpreted and applied in presumption. The commenters cited the models, the incorporated technical proposed § 11.91(c)(2). These absence of a rebuttable presumption for documentation, and this Federal commenters asserted that proposed the statement of trusteeship as an Register notice be brought within 90 § 11.91(c)(2) is outside of the example where the Department days after promulgation. Sections rulemaking authority provided by concluded that the absence of guidance 107(f)(2)(A) and 113(a) of CERCLA section 301(c)(1) of CERCLA, and resulted in the absence of a rebuttable should be read in harmony with one therefore beyond the Department’s legal presumption. authority. These commenters stated that Response: The Department has given another. while the Department has authority to this issue careful consideration, and Also, contrary to the view of some promulgate regulations for assessments, decided not to include proposed commenters, the statutory language of it does not have authority to prescribe § 11.91(c)(2) in today’s final rule. CERCLA does not limit the effect of the what effect those assessments will have Whether or not a court ultimately would rebuttable presumption to the ‘‘final in future judicial proceedings. uphold the authority of the Department results’’ of an assessment. Rather, These commenters also asserted that to promulgate proposed § 11.91(c)(2), section 107(f)(2)(C) of CERCLA provides the Department’s proposed rule and the interpretation of CERCLA that ‘‘[a]ny determination or assessment language that judicial review of a type reflected in it, the Department has of damages * * * made * * * in A assessment in a specific case would concluded that there is sufficient accordance with the regulations * ** be limited to the trustee’s decision to uncertainty about the precise effect of shall have the force and effect of a use the type A procedure and the sections 107(f)(2)(C) and 113(a) of rebuttable presumption.’’ Although the incident-specific data supplied by the CERCLA, as applied in a specific case, Department has decided not to trustee is contrary to sections 113 and to warrant leaving proposed promulgate regulatory language 107(f)(2)(C) of CERCLA and the § 11.91(c)(2) out of the rule at this time. delineating the scope of the rebuttable The Department recognizes that there Administrative Procedure Act (5 U.S.C. presumption, the statute appears to be are numerous scenarios giving rise to 551 et seq.). These commenters stated worded more broadly than was that because CERCLA provides a natural resource damage claims. recognized by these commenters. rebuttable presumption to assessments Whether or not proposed § 11.91(c)(2) as Furthermore, the rule does provide performed in accordance with the applied would be overly broad could procedures requiring trustees to include regulations, CERCLA allows a PRP to depend on the specific circumstances of introduce any relevant evidence that a given case. Aside from whether the data inputs in the Assessment Plan, may rebut the presumption. In the view commenters objecting to this provision which is subject to public review and of these commenters, proposed are legally correct, the questions raised comment. As such, the rule does § 11.91(c)(2) would deny PRPs any have convinced the Department that this contain procedural criteria to ensure the meaningful opportunity to rebut the issue is best addressed outside the accuracy and reliability of data inputs rebuttable presumption, effectively rulemaking context, at least until through a public review and comment rendering the presumption irrebuttable. additional experience has been gained process. The commenters also failed to These commenters interpreted section through case-specific application of recognize a primary reason for the 113(a) of CERCLA as only barring future these simplified procedures. Therefore, Department declining to afford the judicial review of whether the the Department has concluded for now rebuttable presumption to the statement regulations are valid and meet statutory that the precise delineation of of trusteeship. Unlike a statement of requirements. Section 113(a) does not, CERCLA’s preclusive review and trusteeship, which is in essence a according to these commenters, rebuttable presumption provisions to legally-founded assertion, data inputs preclude judicial consideration of all type A damage assessments is best left are factual in nature and can be relevant evidence in an assessment not to specific cases. As a result, the checked, reviewed, and verified through performed at the time the regulations Department need not address whether it the public comment process. Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20609

National Environmental Policy Act, § 11.15 What damages may a trustee Phase that an assessment is warranted, Regulatory Flexibility Act, Paperwork recover? the authorized official must develop a Reduction Act, and Executive Orders (a) * * * plan for the assessment of natural 12866, 12630, 12778, and 12612 (1) Damages as determined in resource damages. accordance with this part and calculated The Department has determined that * * * * * based on injuries occurring from the this rule does not constitute a major (c) * * * onset of the release through the recovery Federal action significantly affecting the (1) * * * period, less any mitigation of those quality of the human environment. (vi) Any other Assessment Plan costs injuries by response actions taken or Therefore, the Department has not for activities authorized by §§ 11.30 anticipated, plus any increase in prepared any further analysis pursuant through 11.38. injuries that are reasonably unavoidable to section 102(2)(C) of the National * * * * * as a result of response actions taken or Environmental Policy Act (43 U.S.C. 6. Section 11.31 is amended by anticipated; 4332(2)(C)). revising the heading and paragraphs The Department certifies that this rule * * * * * (a)(1), (b), (c) introductory text, (c)(1), will not have a significant economic 3. Section 11.18 is amended by and (d) to read as follows: effect on a substantial number of small revising paragraph (a)(4) and adding a new paragraph (a)(5) to read as follows: § 11.31 What does the Assessment Plan entities under the Regulatory Flexibility include? Act (5 U.S.C. 601 et seq.). The rule § 11.18 Incorporation by reference. (a) General content and level of detail. provides technical procedural guidance (a) * * * (1) The Assessment Plan must identify for the assessment of damages to natural (4) The CERCLA Type A Natural and document the use of all of the type resources. It does not directly impose Resource Damage Assessment Model for A and/or type B procedures that will be any additional cost. As the rule applies Coastal and Marine Environments, performed. to natural resource trustees, it is not Technical Documentation, Volumes I– * * * * * expected to have an effect on a VI, dated April 1996, prepared for the substantial number of small entities. (b) Identification of types of U.S. Department of the Interior by assessment procedures. The Assessment This rule does not contain Applied Science Associates, Inc., A.T. information collection requirements that Plan must identify whether the Kearney, Inc., and Hagler Bailly authorized official plans to use a type A require approval by the Office of Consulting, Inc. (NRDAM/CME Management and Budget (OMB) under procedure, type B procedures, or a technical document). Interested parties combination. Sections 11.34 through the Paperwork Reduction Act (44 U.S.C. may obtain a copy of this document 3501 et seq.). 11.36 contain standards for deciding from the National Technical Information which types of procedures to use. The OMB has reviewed this rule under Service, 5285 Port Royal Road, Executive Order 12866. This rule does Assessment Plan must include a Springfield, VA 22161; PB96–501788; detailed discussion of how these not have takings implications under ph: (703) 487–4650. Sections 11.34 (a) Executive Order 12630. The Department standards are met. (b) and (e), 11.35(a), 11.36(b), 11.40(a), (c) Specific requirements for type B has certified to OMB that this rule meets and 11.42(a), and Appendix II refer to the applicable standards provided in procedures. If the authorized official this document. plans to use type B procedures, the Sections 2(a) and 2(b)(2) of Executive (5) The CERCLA Type A Natural Order 12778. This rule does not have Assessment Plan must also include the Resource Damage Assessment Model for following: federalism implications under Executive Great Lakes Environments, Technical Order 12612. (1) The results of the confirmation of Documentation, Volumes I–IV, dated exposure performed under § 11.37; List of Subjects in 43 CFR Part 11 April 1996, prepared for the U.S. Department of the Interior by Applied * * * * * Coastal zone, Environmental Science Associates, Inc., and Hagler (d) Specific requirements for type A protection, Fish, Hazardous substances, Bailly Consulting, Inc. (NRDAM/GLE procedures. If the authorized official Incorporation by reference, Indian technical document). Interested parties plans to use a type A procedure, the lands, Marine resources, National may obtain a copy of this document Assessment Plan must also contain the forests, National parks, Natural from the National Technical Information information described in subpart D. resources, Public lands, Recreation Service, 5285 Port Royal Road, 7. Section 11.32 is amended by areas, Sea shores, Wildlife, Wildlife Springfield, VA 22161; PB96–501770; revising the heading and paragraph refuges. ph: (703) 487–4650. Sections 11.34 (a) (c)(1) and adding a new paragraph (f)(3) to read as follows: For the reasons set out in the (b) and (e), 11.35(a), 11.36(b), 11.40(a), preamble, Title 43, Subtitle A of the and 11.42(a), and Appendix III refer to § 11.32 How does the authorized official Code of Federal Regulations is amended this document. develop the Assessment Plan? as follows: * * * * * * * * * * 4. Section 11.19 is removed and (c) Public involvement in the PART 11ÐNATURAL RESOURCE reserved. Assessment Plan. (1) The authorized DAMAGE ASSESSMENTS official must make the Assessment Plan Subpart CÐAssessment Plan Phase 1. The authority citation for Part 11 available for review by any identified continues to read as follows: 5. Section 11.30 is amended by potentially responsible parties, other natural resource trustees, other affected Authority: 42 U.S.C. 9651(c), as amended. revising the heading and paragraphs (a) and (c)(1)(vi) to read as follows: Federal or State agencies or Indian Subpart AÐIntroduction tribes, and any other interested member § 11.30 What does the authorized official of the public for a period of at least 30 2. Section 11.15 is amended by do if an assessment is warranted? calendar days, with reasonable revising the heading and paragraph (a) If the authorized official extensions granted as appropriate. The (a)(1) to read as follows: determines during the Preassessment authorized official may not perform any 20610 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations type B procedures described in the (e) The authorized official is not (c) If there is no available type A Assessment Plan until after this review aware of any reliable evidence that, for procedure, the authorized official must period. species that are likely to represent a use type B procedures to calculate all * * * * * significant portion of the claim, the damages. (f) * * * species biomass is significantly lower (d) Except as provided in paragraph (3) Paragraphs (f)(1) and (f)(2) of this than the species biomass assigned by (b) of this section, the authorized official section do not apply to the use of a type the NRDAM/CME or the NRDAM/GLE may change the type of procedure used A procedure. Tables IV.2.1 through IV.2.115 and in light of comments received on the 8. Section 11.33 is revised to read as IV.5.1 through IV.5.77, Volume III of the Assessment Plan. [See § 11.32(e)(2) to follows: NRDAM/CME technical document list determine if the authorized official must the species biomasses in the NRDAM/ provide for additional public review.] § 11.33 What types of assessment CME. Tables III.3.17 through III.3.27 and However, if the authorized official procedures are available? III.3.40 through III.3.50, Volume III of decides to use type B procedures in lieu There are two types of assessment the NRDAM/GLE technical document of a type A procedure, and cannot procedures: list the species biomasses in the confirm exposure under § 11.37, the (a) Type A procedures are simplified NRDAM/GLE ; and authorized official may not then use a procedures that require minimal field (f) Subsurface currents either: are not type A procedure. observation. Subpart D describes the expected to significantly affect the level type A procedures. There are two type § 11.36 May the authorized official use or extent of injuries; or are reasonably both type A and type B procedures for the A procedures: a procedure for coastal or uniform with depth over the water marine environments, which same release? column in the area affected by the (a) The authorized official may use incorporates the Natural Resource release. Damage Assessment Model for Coastal both a type A procedure and type B and Marine Environments, Version 2.4 § 11.35 How does the authorized official procedures for the same release if: (NRDAM/CME); and a procedure for decide whether to use type A or type B (1) The type B procedures are cost- Great Lakes environments, which procedures? effective and can be performed at a incorporates the Natural Resource (a) If the authorized official reasonable cost; Damage Assessment Model for Great determines under § 11.34 that a type A (2) There is no double recovery; and Lakes Environments, Version 1.4 procedure is available, the authorized (3) The type B procedures are used (NRDAM/GLE). official must then decide whether to use only to determine damages for injuries (b) Type B procedures require more that procedure or use type B procedures. or compensable values that do not fall extensive field observation than the type The authorized official must make this into the categories addressed by the type A procedures. Subpart E describes the decision by weighing the difficulty of A procedure. [Sections 11.14(v) and type B procedures. collecting site-specific data against the 11.62 define ‘‘injury.’’ Section 9. Sections 11.34 and 11.35 are suitability of the averaged data and 11.83(c)(1) defines ‘‘compensable redesignated as §§ 11.37 and 11.38 and simplifying assumptions in the type A value.’’] (b) The type A procedures address the new §§ 11.34 through 11.36 are added to procedure for the release being assessed. following categories of injury and read as follows: The authorized official may use type B compensable value: procedures if they can be performed at § 11.34 When may the authorized official (1) Direct mortality of species covered a reasonable cost and if the increase in use a type A procedure? by the NRDAM/CME or NRDAM/GLE accuracy provided by those procedures The authorized official may use a type resulting from short-term exposure to outweighs the increase in assessment A procedure only if: the released substance. Volume IV of the costs. Section 1, Volume I of the (a) The released substance entered an NRDAM/CME technical document NRDAM/CME technical document area covered by the NRDAM/CME or (incorporated by reference, see § 11.18) (incorporated by reference, see § 11.18) NRDAM/GLE. Section 3.4, Volume III of lists the species that the NRDAM/CME lists the simplifying assumptions made the NRDAM/CME technical document covers. Section 3, Volume III of the in the NRDAM/CME. Volumes III (incorporated by reference, see § 11.18) NRDAM/GLE technical document through IV of the NRDAM/CME identifies the areas that the NRDAM/ (incorporated by reference, see § 11.18) technical document list the data in the CME covers. Section 6.2, Volume III of lists the species that the NRDAM/GLE NRDAM/CME. Section 1, Volume I of the NRDAM/GLE technical document covers; the NRDAM/GLE technical document (incorporated by reference, see § 11.18) (2) Direct loss of production of species (incorporated by reference, see § 11.18) describes the areas that the NRDAM/ covered by the NRDAM/CME or lists the simplifying assumptions made GLE covers; NRDAM/GLE resulting from short-term in the NRDAM/GLE. Volume III of the (b) The NRDAM/CME or NRDAM/ exposure to the released substance; NRDAM/GLE technical document lists GLE cover the released substance. Table (3) Indirect mortality of species the data in the NRDAM/GLE. 7.1, Volume I of the NRDAM/CME covered by the NRDAM/CME or technical document lists the substances (b) The authorized official must use NRDAM/GLE resulting from disruption that the NRDAM/CME covers. Table 7.1, type B procedures rather than a type A of the food web by direct mortality or Volume I of the NRDAM/GLE technical procedure whenever a potentially direct loss of production; document lists the substances that the responsible party: (4) Indirect loss of production of NRDAM/GLE covers; (1) Submits a written request for use species covered by the NRDAM/CME or (c) The released substance entered of type B procedures along with NRDAM/GLE resulting from disruption water at or near the surface; documentation of the reasons of the food web by direct mortality or (d) At the time of the release, winds supporting the request; and direct loss of production; did not vary spatially over the area (2) Advances all reasonable costs of (5) Lost assimilative capacity of water affected by the release in a way that using type B procedures within a time column and sediments; would significantly affect the level or frame acceptable to the authorized (6) Lost economic rent for lost extent of injuries; official. commercial harvests resulting from any Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20611 closures specified by the authorized at least one of the natural resources (10) For the NRDAM/CME, the official and/or from population losses; identified as potentially injured in the condition of the currents and tides. (7) Lost recreational harvests resulting preassessment screen has in fact been (b) The authorized official must from any closures specified by the exposed to the released substance. change the data in the NRDAM/CME authorized official and/or from * * * * * and the NRDAM/GLE for the following population losses; 11. The heading of subpart D is parameters if he or she is aware of more (8) For the type A procedure for revised to read as follows: accurate data: coastal and marine environments, lost (1) Air temperature; wildlife viewing, resulting from Subpart DÐType A Procedures (2) Water temperature at the surface; population losses, by residents of the (3) Total suspended sediment States bordering the provinces in which 12. Section 11.40 is amended by concentration; the population losses occurred. [A revising the heading and paragraph (a), province is one of the geographic areas removing paragraph (b), removing the (4) Mean settling velocity of delineated in Table 6.1, Volume I of the heading from paragraph (c), and suspended solids; and NRDAM/CME technical document.] For redesignating paragraph (c) as paragraph (5) Habitat type. the type A procedure for Great Lakes (b) to read as follows: (c)(1) If the release occurred in Alaska environments, lost wildlife viewing, § 11.40 What are type A procedures? and the authorized official is not aware of any reliable evidence that ice was resulting from population losses, by (a) A type A procedure is a absent from the site of the release, then residents of local areas bordering the standardized methodology for he or she must turn on the ice modeling provinces in which the population performing Injury Determination, function. Otherwise, the authorized losses occurred. [A province is one of Quantification, and Damage official must leave the ice modeling the geographic areas delineated in Table Determination that requires minimal function off. 8.1, Volume I of the NRDAM/GLE field observation. There are two type A technical document.]; procedures: the type A procedure for (2) If the release occurred in the Great (9) Lost beach visitation due to coastal and marine environments; and Lakes and the authorized official is closure; and the type A procedure for Great Lakes aware of reliable evidence that ice was (10) For the type A procedure for environments. The type A procedure for absent from the site of the release, then Great Lakes environments, lost boating coastal and marine environments he or she must turn off the ice modeling due to closure. incorporates a computer model called function. (c) If the authorized official uses both the Natural Resource Damage (d) The authorized official must type A and type B procedures, he or she Assessment Model for Coastal and develop the data inputs and must explain in the Assessment Plan Marine Environments Version 2.4 modifications and include them in the how he or she intends to prevent double (NRDAM/CME). The NRDAM/CME Assessment Plan in the format specified recovery. technical document (incorporated by in Appendix II (for the NRDAM/CME) (d) When the authorized official uses reference, see § 11.18) includes and or Appendix III (for the NRDAM/GLE). type B procedures for injuries not explains the NRDAM/CME. The type A 14. New §§ 11.42 through 11.44 are addressed in a type A procedure, he or procedure for Great Lakes environments added to subpart D to read as follows: she must follow all of subpart E (which incorporates a computer model called contains standards for determining and § 11.42 How does the authorized official the Natural Resource Damage quantifying injury as well as apply the NRDAM/CME or NRDAM/GLE? Assessment Model for Great Lakes determining damages), § 11.31(c) Environments Version 1.4 (NRDAM/ (a) The authorized official must (which addresses content of the GLE). The NRDAM/GLE technical perform a preliminary application of the Assessment Plan), and § 11.37 (which document (incorporated by reference, NRDAM/CME or NRDAM/GLE with the addresses confirmation of exposure). see § 11.18) includes and explains the data inputs and modifications When the authorized official uses type NRDAM/GLE. The authorized official developed under § 11.41. Volume II of B procedures for compensable values must follow §§ 11.41 through 11.44 the NRDAM/CME technical document that are not included in a type A when using the type A procedures. (incorporated by reference, see § 11.18) procedure but that result from injuries (b) * * * describes how to apply the NRDAM/ that are addressed in the type A 13. Section 11.41 is revised to read as CME. Volume II of the NRDAM/GLE procedure, he or she need not follow all follows: technical document (incorporated by of subpart E, § 11.31(c), and § 11.37. reference, see § 11.18) describes how to Instead, the authorized official may rely § 11.41 What data must the authorized apply the NRDAM/GLE. For cases on the injury predictions of the type A official supply? involving releases of two or more procedure and simply use the valuation (a) The NRDAM/CME and the substances or a release of a mixture of methodologies authorized by § 11.83(c) NRDAM/GLE require several data substances, the authorized official may to calculate compensable value. When inputs to operate. The authorized only apply the NRDAM/CME or using valuation methodologies, the official must develop the following data NRDAM/GLE once using only one of the authorized official must comply with inputs: substances. § 11.84. (1) The identity of the released (b) If the preliminary application of 10. Newly designated § 11.37 is substance; the NRDAM/CME or NRDAM/GLE amended by revising the heading and (2) The mass or volume of the indicates damages in excess of paragraph (a) to read as follows: identified substance that was released; $100,000, then the authorized official (3) The duration of the release; must decide whether to: § 11.37 Must the authorized official (4) The time of the release; confirm exposure before implementing the (5) The location of the release; (1) Limit the portion of his or her Assessment Plan? (6) The wind conditions; claim calculated with the type A (a) Before including any type B (7) The extent of response actions; procedure to $100,000; or methodologies in the Assessment Plan, (8) The extent of any closures; (2) Compute all damages using type B the authorized official must confirm that (9) The implicit price deflator; and procedures. 20612 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

§ 11.43 Can interested parties review the (f) If the final application of the § 11.91 How does the authorized official results of the preliminary application? NRDAM/CME or NRDAM/GLE, adjusted seek recovery of the assessed damages After completing the preliminary as needed under paragraphs (d) and (e), from the potentially responsible party? application of the NRDAM/CME or calculates damages in excess of (a) At the conclusion of the NRDAM/GLE, if the authorized official $100,000, then the authorized official assessment, the authorized official must decides to continue with the type A must limit the portion of his or her present to the potentially responsible procedure, he or she must issue an claim calculated with the type A party a demand in writing for the Assessment Plan for public comment as procedure to $100,000. damages determined in accordance with described in § 11.32. The Assessment (g) After preparing the Report of this part and the reasonable cost of the Plan must include the information Assessment, the authorized official must assessment. [See § 11.92(b) to determine described in § 11.31, the data inputs and follow the steps described in subpart F. how the authorized official must adjust modifications developed under § 11.41, 15. The heading of subpart E is damages if he or she plans to place and a summary of the results of the revised to read as follows: recovered funds in a non-interest- preliminary application. The bearing account.] The authorized official Assessment Plan must also identify a Subpart EÐType B Procedures must deliver the demand in a manner contact from whom a complete copy of that establishes the date of receipt. the printout of the preliminary 16. Section 11.73 is amended by *** application can be obtained. revising the second sentence of * * * * * paragraph (a) to read as follows: § 11.44 What does the authorized official 19. New Appendices II and III are do after the close of the comment period? § 11.73 Quantification phase-resource added to read as follows: recoverability analysis (a) The authorized official must Appendix II to Part 11—Format for carefully review all comments received (a) * * * The time estimated for Data Inputs and Modifications to the on the Assessment Plan, provide recovery or any lesser period of time as NRDAM/CME substantive responses to all comments, determined in the Assessment Plan and modify the Plan as appropriate. [See This appendix specifies the format for data must be used as the recovery period for inputs and modifications to the NRDAM/ § 11.32(e)(2) to determine if the purposes of § 11.38 and the Damage CME under § 11.41. Consult the back of this authorized official must provide for Determination phase, §§ 11.80 through appendix for definitions. additional public review.] 11.84. Starting Point for the NRDAM/CME (b) If, after reviewing the public * * * * * comments, the authorized official The NRDAM/CME begins its calculations decides to continue with the type A Subpart FÐPost-Assessment Phase at the point that the released substance procedure, he or she must then perform entered water in an area represented by its geographic database. Any water within the a final application of the NRDAM/CME 17. Section 11.90 is amended by revising the heading, paragraphs (a) and geographic boundaries of the NRDAM/CME or NRDAM/GLE, using final data inputs is a ‘‘coastal or marine environment.’’ The and modifications based on § 11.41 and (b), and the first sentence of paragraph authorized official must determine all data any reliable information received during (c) as follows: inputs and modifications as of the time and the public review and comment period. location that the released substance entered § 11.90 What documentation must the a coastal or marine environment. In the case (c) After completing the final authorized official prepare after completing of a release that began in water in an area application of the NRDAM/CME or the assessment? NRDAM/GLE, the authorized official within the boundaries of the NRDAM/CME, must prepare a Report of Assessment. (a) At the conclusion of an this point will be the same as the point of the release. However, for releases that begin on The Report of Assessment must include assessment, the authorized official must prepare a Report of Assessment that land or that begin outside the boundaries of the printed output from the final the NRDAM/CME, this point will not be the application as well as the Preassessment consists of the Preassessment Screen Determination, the Assessment Plan, point of the release but rather the point at Screen Determination and the which the released substance migrates into a Assessment Plan. and the information specified in coastal or marine environment. paragraphs (b) and (c) of this section as (d) If the authorized official is aware Required Data Inputs of reliable evidence that a private party applicable. (b) When the authorized official has Documentation of the source of the data has recovered damages for commercial inputs; and harvests lost as a result of the release, used a type A procedure, the Report of the authorized official must eliminate Assessment must include the Identity of Substance from the claim any damages for such information specified in subpart D. For release of single substance: lost harvests that are included in the (c) When the authorized official has Name of the substance that entered a lost economic rent calculated by the used type B procedures, the Report of coastal or marine environment as it appears NRDAM/CME or NRDAM/GLE. Assessment must include all in Table 7.1, Volume I of the NRDAM/CME documentation supporting the technical document (incorporated by (e) If the authorized official is aware reference, see § 11.18). of reliable evidence that the NRDAM/ determinations required in the Injury For releases of two or more substances or CME or NRDAM/GLE application covers Determination phase, the Quantification a release of a mixture of two or more resources beyond his or her trustee phase, and the Damage Determination substances: jurisdiction, the authorized official must phase, and specifically including the Name of only one of the substances that either: test results of any and all methodologies entered a coastal or marine environment as (1) Have the other authorized performed in these phases. * ** it appears in Table 7.1, Volume I of the official(s) who do have trustee 18. Section 11.91 is amended by NRDAM/CME technical document. jurisdiction over those resources join in revising the heading and by removing Mass or Volume the type A assessment; or the first sentence of paragraph (a) and For release of single substance: (2) Eliminate any damages for those inserting three new sentences in its Mass or volume of identified substance resources from the claim for damages. place to read as follows: that entered a coastal or marine environment Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20613 stated in tonnes, barrels, gallons, liters, Closures Modifications to the NRDAM/CME Databases pounds, or kilograms. Documentation that the closure was (if Any) For releases of two or more substances or ordered by an appropriate agency as a result Documentation of the source of the a release of a mixture of two or more of the release; modification; and substances: Province(s) in which closure occurred; and For air temperature: Mass or volume of the one identified For beaches: Air temperature, stated in degrees Celsius, substance (rather than total mass) that Whether the beach was Federal or State assigned by the NRDAM/CME at the point entered a coastal or marine environment (including municipal or county); that the identified substance entered a coastal stated in tonnes, barrels, gallons, liters, Number of days of closure stated by or marine environment (see Table III.3.2, pounds, or kilograms. calendar month; and Volume III of the NRDAM/CME technical Duration Length of shoreline closed, stated in document); and kilometers, for each month in which closure Substitute air temperature stated in degrees Length of time over which the identified occurred. Celsius. substance entered a coastal or marine For fisheries and shellfish harvest areas: For water temperature at the surface: environment stated in hours. Whether area closed was seaward open Water temperature at the surface, stated in Time water, landward open water, or structured; degrees Celsius, assigned by the NRDAM/ CME at the point that the identified Year, month, day, and hour when the Number of days of closure; and Area closed stated in square kilometers. substance entered a coastal or marine identified substance first entered a coastal or environment (see Table III.3.3, Volume III of marine environment. For furbearer hunting or trapping areas and waterfowl hunting areas: the NRDAM/CME technical document); and Location Number of days of closure; and Substitute water temperature stated in degrees Celsius. Area closed stated in square kilometers. Latitude and longitude, stated in degrees For total suspended sediment and decimal minutes, where the identified Implicit Price Deflator concentration: substance entered a coastal or marine Total suspended sediment concentration, environment. Quarterly implicit price deflator for the Gross National Product (base year 1992) for stated in milligrams per liter, assigned by the Winds the quarter in which the identified substance NRDAM/CME at the point that the identified substance entered a coastal or marine entered a coastal or marine environment. At least one set of data on prevailing wind environment (see Section 3, Volume I of the [See the Survey of Current Business, conditions for each day of the 30-day period NRDAM/CME technical document); and published by the U.S. Department of beginning 24 hours before the identified Substitute suspended sediment Commerce/Bureau of Economic Analysis, substance entered a coastal or marine concentration stated in milligrams per liter. environment. Each set must include: 1441 L Street, NW, Washington, D.C., 20230, For mean settling velocity of suspended Wind velocity stated in knots or meters per (202) 606–9900.] solids: second; and Currents Mean settling velocity of suspended Corresponding wind direction stated in the sediments, stated in meters per day, assigned For a rectangular geographic area degree angle of the wind’s origin. by the NRDAM/CME at the point that the encompassing the area affected by the release [One possible source of information is the identified substance entered a coastal or National Climatic Data Center, Asheville, NC stated in terms of the northern- and southern- marine environment (see Section 3, Volume (703) 271–4800.] most latitude, and the eastern- and western- I of the NRDAM/CME technical document); most longitude: and Response Actions At least one set of data concerning Substitute suspended sediment If removed from water surface: background (mean) current consisting of— concentration stated in milligrams per liter. A rectangular geographic area An east-west (U) velocity stated in For habitat type: encompassing the surface water area over centimeters per second or knots; Latitude and longitude bounds of area for which the released substance was likely to A north-south (V) velocity stated in which the habitat type is being modified; have spread, stated in terms of the northern- centimeters per second or knots; and Habitat type assigned by the NRDAM/CME and southern-most latitude, and the eastern- Latitude and longitude of the origin of the (see Section 3.4, Volume III of the NRDAM/ and western-most longitude; U and V velocity components. CME technical document); and One or more time frames for removal stated At least one set of data concerning tidal Substitute habitat type. in terms of the number of days and hours current at time of flood stage (i.e., rising tide) For releases in Alaska, if the authorized after the identified substance entered a consisting of— official leaves the ice modeling function off, coastal or marine environment that removal An east-west (U) velocity stated in he or she must provide documentation that began and ended; and centimeters per second or knots; ice was absent at the site of the release. For each time frame, volume of the A north-south (V) velocity stated in identified substance removed from the water centimeters per second or knots; and Definitions surface (not the total volume of contaminated Latitude and longitude of the origin of the Background (mean) current—net long-term water or sediments removed) stated in U and V velocity components. current flow (i.e., one direction only), barrels, gallons, or cubic meters. [Possible sources of information are: the attributable to forces such as winds, river If removed from shoreline: National Ocean Service, U.S. Department of flow, water density, and tides, that remains A rectangular geographic area Commerce, Riverdale, MD (310) 436–6990; when all the oscillatory (tidal) components encompassing the shoreline area over which and the Eldridge Tide and Pilot Book, Robert have been removed either mathematically or the released substance was likely to have Eldridge White Publisher, Boston, MA (617) by measurement techniques. spread, stated in terms of the northern- and 742–3045.] Landward open water—a body of water southern-most latitude, and the eastern- and that does not contain vegetation (e.g., western-most longitude; Tides wetland, seagrass, or kelp) or invertebrate One or more time frames for removal stated Hour of high tide on the day that the reef (e.g., coral reef) and is classified as in terms of the number of days and hours identified substance entered a coastal or ‘‘landward’’ in Table 6.2, Volume I of the after the identified substance entered a marine environment; NRDAM/CME technical document. coastal or marine environment that removal Tidal range at point that the identified Province—one of the geographic areas began and ended; and substance entered a coastal or marine delineated in Table 6.1, Volume I of the For each time frame, volume of the environment stated in meters; and NRDAM/CME technical document. identified substance removed (not the total Whether the tide in the area affected by the Seaward open water—a body of water that volume of contaminated water or sediments release is diurnal (i.e., completes one full does not contain vegetation (e.g., wetlands, removed) stated in barrels, gallons, or cubic cycle every day) or semi-diurnal (i.e., seagrass, or kelp) or invertebrate reef (e.g., meters. completes two full cycles every day). coral reef) and is classified as ‘‘seaward’’ in 20614 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

Table 6.2, Volume I of the NRDAM/CME Duration Modifications to the NRDAM/GLE Databases technical document. Length of time over which the identified (if Any) Structured—in an area that contains substance entered a Great Lakes environment Documentation of the source of the vegetation (e.g., wetlands, seagrass, or kelp) stated in hours. or invertebrate reef (e.g., coral reef). modifications; and Tidal current—currents caused by Time For air temperature: Air temperature, stated in degrees Celsius, alternating rise and fall of the sea level due Year, month, day, and hour when the to the gravitational forces between the earth, identified substance first entered a Great assigned by the NRDAM/GLE at the point moon, and sun. Lakes environment. that the identified substance entered a Great Tidal range—difference between the Lakes environment (see Table III.6.1, Volume highest and lowest height of the tide. Location III of the NRDAM/GLE technical document); Appendix III to Part 11—Format for Latitude and longitude, stated in degrees and and decimal minutes, where the identified Substitute air temperature stated in degrees Data Inputs and Modifications to the substance entered a Great Lakes Celsius. NRDAM/GLE environment. For water temperature at the surface: This appendix specifies the format for data Winds Water temperature at the surface, stated in inputs and modifications to the NRDAM/GLE At least one set of data on prevailing wind degrees Celsius, assigned by the NRDAM/ under § 11.41. Consult the back of this GLE at the point that the identified substance appendix for definitions. conditions for each day of the 30-day period beginning 24 hours before the identified entered a Great Lakes environment (see Table Point of Analysis substance entered a Great Lakes III.6.2.6, Volume III of the NRDAM/GLE The NRDAM/GLE begins its calculations at environment. Each set must include: technical document); and the point that the released substance entered Wind velocity stated in knots or meters per Substitute water temperature stated in water in an area represented by its second; and Corresponding wind direction degrees Celsius. geographic database. Any water within the stated in the degree angle of the wind’s For total suspended sediment geographic boundaries of the NRDAM/GLE is origin. concentration: a ‘‘Great Lakes environment.’’ The authorized [One possible source of information is the Total suspended sediment concentration, official must determine all data inputs and National Climatic Data Center, Asheville, NC stated in milligrams per liter, assigned by the modifications as of the time and location that (703) 271–4800.] NRDAM/GLE at the point that the identified the released substance entered a Great Lakes Response Actions substance entered a Great Lakes environment environment. In the case of a release that (see Section 3, Volume I of the NRDAM/GLE began in water in an area within the Percentage of identified substance removed technical document); and boundaries of the NRDAM/GLE, this point from water surface, bottom sediments, and will be the same as the point of the release. shoreline; and Substitute suspended sediment However, for releases that begin on land or For each medium cleaned (water surface, concentration stated in milligrams per liter. that begin outside the boundaries of the bottom sediments, or shoreline), the number For mean settling velocity of suspended NRDAM/GLE, this point will not be the point of days after the identified substance entered solids: of the release but rather the point at which a Great Lakes environment that removal Mean settling velocity of suspended the released substance migrates into a Great began and ended. sediments, stated in meters per day, assigned Lakes environment. Closures by the NRDAM/GLE at the point that the identified substance entered a Great Lakes Required Data Inputs Documentation that the closure was environment (see Section 3, Volume I of the Documentation of source of data inputs; ordered by an appropriate agency as a result NRDAM/GLE technical document); and and of the release; and For boating areas: Substitute suspended sediment Identity of Substance Number of weekend days of closure stated concentration stated in milligrams per liter. For release of single substance: by calendar month; For habitat type: Name of the released substance that Number of weekday days of closure stated Latitude and longitude bounds of area for entered a Great Lakes environment as it by calendar month; and which the habitat type is being modified; appears in Table 7.1, Volume I of the Area closed stated in square kilometers. Habitat type assigned by the NRDAM/GLE NRDAM/GLE technical document For beaches: (see Section 6.2, Volume III of the NRDAM/ (incorporated by reference, see § 11.18). Whether the beach was Federal or State GLE technical document); and (including municipal or county); For releases of two or more substances or Substitute habitat type. a release of a mixture of two or more Number of days of closure stated by If the authorized official turns off the ice substances: calendar month; and Name of only one of the released Length of shoreline closed stated in meters. modeling function, then he or she must substances that entered a Great Lakes For fisheries: provide documentation that ice was absent environment as it appears in Table 7.1, Whether area closed was an offshore, from the site of the release. nearshore, or wetland fishery; Volume I of the NRDAM/GLE technical Definitions document. Number of days of closure; and Area closed stated in square kilometers. Nearshore fishery—fishery in an open Mass or Volume For furbearer hunting or trapping areas and water area that is less than 30 feet in depth For releases of single substance: waterfowl hunting areas: or is in a connecting channel. Mass or volume of identified substance Number of days of closure; and Offshore fishery—fishery in an open water that entered a Great Lakes environment Area closed stated in square kilometers. area that is 30 feet or more in depth. stated in tonnes, barrels, gallons, liters, Wetland fishery—fishery that is not in an pounds, or kilograms. Implicit Price Deflator open water area. For releases of two or more substances or Quarterly implicit price deflator for the a release of a mixture of two or more Gross National Product (base year 1992) for Dated: April 25, 1996. substances: the quarter in which the identified substance Bonnie R. Cohen, entered a Great Lakes environment. [See the Mass or volume of the one identified Assistant Secretary—Policy, Management, Survey of Current Business, published by the substance (rather than total mass) that and Budget. entered a Great Lakes environment stated in U.S. Department of Commerce/Bureau of tonnes, barrels, gallons, liters, pounds, or Economic Analysis, 1441 L Street, NW, [FR Doc. 96–10747 Filed 5–6–96; 8:45 am] kilograms. Washington, D.C., 20230, (202) 606–9900.] BILLING CODE 4310±RG±P federal register May 7,1996 Tuesday Airworthiness Directives;FinalRules 14 CFRPart39 Federal AviationAdministration Transportation Department of Part III 20615 20616 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

DEPARTMENT OF TRANSPORTATION and icing data provided currently to the January 25, 1996 (61 FR 2175). The flight crews. The actions specified by action proposed to require revising the Federal Aviation Administration this AD are intended to minimize the Airplane Flight Manual (AFM) to potential hazards associated with specify procedures that would prohibit 14 CFR Part 39 operating the airplane in freezing rain or flight in freezing rain or freezing drizzle [Docket No. 96±CE±01±AD; Amendment 39± freezing drizzle conditions by providing conditions (as determined by certain 9587; AD 96±09±11] more clearly defined procedures and visual cues), limit or prohibit the use of limitations associated with such various flight control devices, and RIN 2120±AA64 conditions. provide the flight crew with recognition Airworthiness Directives; de Havilland, EFFECTIVE DATE: June 11, 1996. cues for, and procedures for exiting from, severe icing conditions. Inc. DHC±6 Series Airplanes ADDRESSES: Information that relates to this AD may be examined at the Federal Disposition of Comments AGENCY: Federal Aviation Aviation Administration (FAA), Central Interested persons have been afforded Administration, DOT. Region, Office of the Assistant Chief ACTION: Final rule. an opportunity to participate in the Counsel, Attention: Rules Docket 96– making of this amendment. Due CE–01–AD, Room 1558, 601 E. 12th SUMMARY: This amendment adopts a consideration has been given to the Street, Kansas City, Missouri 64106. new airworthiness directive (AD) that comments received. applies to de Havilland DHC–6 series FOR FURTHER INFORMATION CONTACT: Mr. In addition to the proposed rule airplanes. This action requires revising John Dow, Aerospace Engineer, FAA, described previously, in January 1996, the Airplane Flight Manual (AFM) to Small Airplane Directorate, 1201 the FAA issued 17 other similar provide the flight crew with recognition Walnut, suite 900, Kansas City, Missouri proposals that address the subject cues for, and procedures for exiting 64106; telephone (816) 426–6934; unsafe condition on various airplane from, severe icing conditions, and to facsimile (816) 426–2169. models (see below for a listing of all 18 limit or prohibit the use of various flight SUPPLEMENTARY INFORMATION: A proposed rules). These 17 proposals also control devices. This amendment is proposal to amend part 39 of the Federal were published in the Federal Register prompted by results of a review of the Aviation Regulations (14 CFR part 39) to on January 25, 1996. This final rule requirements for certification of the include an AD that would apply to de contains the FAA’s responses to all airplane in icing conditions, new Havilland DHC–6 series airplanes was public comments received for each of information on the icing environment, published in the Federal Register on these proposed rules.

Federal Register cita- Docket No. Manufacturer/airplane model tion

96±CE±01±AD de Havilland DHC±6 Series ...... 61 FR 2175 96±CE±02±AD EMBRAER EMB±110P1/EMB±110P2 ...... 61 FR 2183 96±CE±03±AD Beech 99/200/1900 Series ...... 61 FR 2180 96±CE±04±AD Dornier 228 Series ...... 61 FR 2172 96±CE±05±AD Cessna 208/208B ...... 61 FR 2178 96±CE±06±AD Fairchild Aircraft SA226/SA227 Series ...... 61 FR 2189 96±CE±07±AD Jetstream 3101/3201 ...... 61 FR 2186 96±NM±13±AD Jetstream BAe ATP ...... 61 FR 2144 96±NM±14±AD Jetstream 4101 ...... 61 FR 2142 96±NM±15±AD British Aerospace HS 748 Series ...... 61 FR 2139 96±NM±16±AD Saab SF340A/SAAB 340B/SAAB 2000 Series ...... 61 FR 2169 96±NM±17±AD CASA C±212/CN±235 Series ...... 61 FR 2166 96±NM±18±AD Dornier 328±100 Series ...... 61 FR 2157 96±NM±19±AD EMBRAER EMB±120 Series ...... 61 FR 2163 96±NM±20±AD de Havilland DHC±7/DHC±8 Series ...... 61 FR 2154 96±NM±21±AD Fokker F27 Mark 100/200/300/400/500/600/700/050 Series ...... 61 FR 2160 96±NM±22±AD Short Brothers SD3±30/SD3±60/SD3±SHERPA Series ...... 61 FR 2151 95±NM±146±AD Aerospatiale ATR±42/ATR±72 Series ...... 61 FR 2147

Comment 1. Support for the Proposals incorporation of AFM procedures, in accumulation of ice. The commenter Numerous commenters support the addition to installation of the modified states that the term ‘‘severe icing’’ has FAA’s intent to minimize the potential boots, provide a substantial margin of a specific meaning as defined in the hazards associated with operating safety for the Aerospatiale fleet. Aeronautical Information Manual: ‘‘The airplanes of any type design in severe Comment 2. Requests Concerning rate of accumulation is such that the icing conditions. One commenter states References to ‘‘Freezing Rain/Freezing icing/anti-icing equipment fails to that the limitation prohibiting the use of Drizzle’’ reduce or control the hazard. Immediate flaps while enroute and during holding diversion is necessary.’’ The commenter in icing conditions will be a positive Raytheon requests that references to a states that, although freezing rain or contribution to safety. Additionally, class of meteorological conditions in the freezing drizzle may involve drops several commenters support the limitations described as ‘‘freezing rain larger than those specified in Appendix requirement of the proposed AD for or freezing drizzle’’ should be removed C of part 25 (‘‘Airworthiness Standards: Aerospatiale airplanes for installation of from the proposed rules. Raytheon Transport Category Airplanes’’) of the modified deicing boots on the outer contends that instructions for the flight Federal Aviation Regulations (14 CFR leading edges of the wings. One of these crew should be restricted to hazardous part 25), flight into those conditions commenters states that the conditions that are defined by the does not always result in accumulation Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20617 of ice beyond the capability of the these AD’s, the flight crew must only would need to be canceled in order to aircraft nor is severe icing always the take action if certain visual cues are make all reasonable efforts to avoid result of freezing rain or freezing present on the airplane. encounters with freezing rain/freezing drizzle. Raytheon concludes that the The FAA has determined that drizzle conditions—i.e., when these limitation specified in paragraph (a)(1) reference to freezing rain and freezing conditions are forecast, airplanes will be of the proposals which reads, ‘‘Flight in drizzle should not be removed from the prohibited from flight into those meteorological conditions described as text of the ‘‘Caution’’ that appears in conditions. One commenter remarks freezing rain or freezing drizzle, as paragraph (a)(2) of the proposals. [Note: that, based on the actual weather in determined by the following visual The ‘‘Caution’’ appears as the January 1996, nearly 75 percent of its cues, is prohibited,’’ is an inference or ‘‘Warning’’ in paragraph (a)(1) of the scheduled flights would have been conclusion that does not follow from the final rules. An explanation of this canceled due to forecast or actual premises. change is contained in the disposition of freezing rain or freezing drizzle The European Regional Airlines Comment 49 of these final rules.] conditions if the AD’s had been in (ERA) Association states that the Reference to freezing rain and freezing effect. The commenters do not believe proposals define visual cues to be used drizzle in that portion of text is made that the FAA has considered the to identify ‘‘freezing rain’’ and ‘‘freezing simply to provide a description of economic factors affected by the drizzle,’’ but these criteria are conditions that may result in ice build- proposed actions, such as the number of inconsistent with the criteria defined by up that exceeds the capabilities of the flights lost per day, crew costs, the International Civil Aviation ice protection system. passenger compensation, misconnected Organization (ICAO) and used by Comment 3. Request for Review of baggage, etc. weather observers in aviation If the FAA does not withdraw the ‘‘Severe Icing’’ Terminology meteorological support services. The proposals, one commenter states that FAA infers from this remark that ERA One commenter, the Civil Aviation the prohibition of flight in freezing rain requests the use of ICAO terminology Authority (CAA), which is the or freezing drizzle, as specified in associated with the visual cues. airworthiness authority for the United paragraph (a)(1) of the proposals, should The FAA concurs partially. The FAA Kingdom, requests that use of the be revised. The commenter suggests the concurs that most of the references to terminology ‘‘severe icing’’ be reviewed. following: ‘‘The aircraft should be ‘‘freezing rain/freezing drizzle’’ can be The CAA does not believe it is immediately flown clear of icing removed from the final rules. The FAA appropriate that this terminology conditions if ice is seen forming on the has revised the final rules to replace becomes accepted for supercooled large upper surface of the wing behind the certain references to freezing rain and droplet (SLD) conditions. The CAA leading edge deice boots.’’ The freezing drizzle with the words ‘‘severe indicates that a common interpretation commenter believes that the current icing.’’ The FAA finds that since the for ‘‘severe icing’’ is that beyond the wording in the proposals would cause visual cues contained in paragraph limit specified in Appendix C of part 25 flight crews to cancel or delay departure (a)(1) of these final rules indicate that of the Federal Aviation Regulations (14 not only when freezing rain or freezing icing conditions have exceeded the CFR part 25), which is at or just over the drizzle exists, but also when those limits of the ice protection equipment, capability of the ice protection system. conditions are forecast. the use of the terminology ‘‘severe The FAA has reviewed the use of the The FAA concurs partially. The FAA icing’’ is appropriate. As stated by one terminology ‘‘severe icing’’ as related to finds that some misunderstanding exists commenter, ‘‘severe icing’’ is SLD. The FAA finds that ice resulting among the commenters concerning the terminology used to describe icing from SLD conditions may not always intent of these AD’s. Many of the conditions that exceed the capabilities meet the criterion specified in the commenters believe that the AD’s will of the ice protection equipment. The common interpretation of ‘‘severe prevent affected airplanes from flight in terminology ‘‘severe icing’’ is commonly icing,’’ as described by the commenter. forecast freezing rain and freezing used and understood within the The FAA notes that while SLD drizzle. This is not the case. The FAA aviation community. Additionally, there conditions may result in the formation agrees that certain language contained should be no confusion over the use of of severe icing, severe icing also may in the AD’s must be clarified to reflect this term in the final rules because the accrue in conditions such as liquid its intent. The FAA has evaluated the AFM revisions required by these AD’s water content, temperature, or extent of wording proposed by one of the define the terminology ‘‘severe icing’’ by cloud, when those conditions exceed commenters and agrees with it in specifying the visual cues that indicate the limits specified in Appendix C of principal. However, the FAA has when the capabilities of the ice part 25 of the Federal Aviation determined that the first limitation in protection equipment have been Regulations (14 CFR part 25). As paragraph (a)(1) of the final rules must exceeded. However, the FAA would explained previously, most references to be revised in order to accommodate consider a request for approval of an freezing rain and freezing drizzle have visual cues other than that specified by alternative method of compliance to use been replaced with the terminology the commenter, to incorporate terminology other than ‘‘severe icing’’ in ‘‘severe icing.’’ Additionally, the AFM’s terminology familiar to the flight crew, an AFM, in accordance with the for the affected airplanes include a and to emphasize that these AD’s provisions of these AD’s, provided that definition of severe icing. address only in-flight icing encounters. adequate justification is presented to Additionally, in order to ensure that support such a request. Comment 4. Request To Withdraw the appropriate coordination with Air Any inconsistencies that may exist Proposals: Significant Economic Impact Traffic Control is accomplished, the between the criteria used by weather on Operating Community FAA has revised the instruction specialists to define ‘‘severe icing’’ and A number of commenters request that following the visual cues in paragraph the criteria stated in these final rules are the proposals be withdrawn because the (a)(1), and has moved that instruction to not relevant for these AD’s because effect of these proposed AD’s will the end of the first limitation in these AD’s do not require the flight crew produce a significant economic impact paragraph (a)(1) of the final rules. The to take any action based on information on the operating community. The entire limitation reads as follows: provided by a weather observer. For commenters indicate that many flights ‘‘During flight, severe icing conditions 20618 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations that exceed those for which the airplane landing the airplane when freezing rain/ release simply because the forecast may is certificated shall be determined by freezing drizzle conditions are indicate freezing rain or freezing drizzle, the following visual cues. If one or more encountered would, in many cases, be but is prohibited from continued flight of these visual cues exists, immediately the most expeditious method of exiting in severe icing conditions. request priority handling from Air the conditions. Such landing would be Comment 5. Request To Withdraw the Traffic Control to facilitate a route or an in compliance with the limitation that Proposals: No Unsafe Condition Has altitude change to exit the icing requires the flight crew to exit the Been Established conditions.’’ (Operators should note severe icing conditions. that, in the final rule for Aerospatiale Two commenters indicate that the Several commenters request that the airplanes, only one visual cue is first note that appears in paragraph proposals be withdrawn because no specified. That cue involves ice on the (a)(1) of the proposed rules could be unsafe condition has been established side window of the airplane.) interpreted to mean that if freezing rain with respect to airplane handling Several commenters question certain or freezing drizzle is forecast anywhere characteristics in severe icing issues related to dispatch of the airplane along the route of flight, the airplane conditions. One commenter states that in severe icing conditions. One could not be dispatched. One of the the preamble of the proposals does not commenter states that the procedures commenters concludes that forecasting provide data that establish an unsafe specified in the proposed AD’s fail to methodologies are inadequate and condition; the preamble only indicates address the conditions that would would need to be improved. The other that there are inadequate data to prohibit takeoff in freezing rain and commenter suggests that the FAA represent all possible conditions. freezing drizzle. The commenter remove the word ‘‘purely’’ from the Another commenter remarks that the believes the visual cues provided in the note. The same commenter requests that FAA’s dismissal of the significance of proposals would only appear on an the FAA clarify that the airplane may be the test results with the specious airplane during flight. Thus, allowable dispatched if the forecast may indicate comment, ‘‘such airplanes could conditions for takeoff during times of freezing rain/freezing drizzle develop ice shapes other than those forecast freezing rain or freezing drizzle conditions. Another commenter tested,’’ is wholly speculative, and is an are left to the individual operator’s indicates that the wording of the same invalid basis on which to issue an AD interpretation. Another commenter note is unclear as to how the FAA under the provisions of part 39 believes that the FAA has not defines a ‘‘purely’’ inadvertent (‘‘Airworthiness Directives’’) of the established a basis for prohibiting flight encounter. The commenter states that Federal Aviation Regulations (14 CFR in all reported freezing drizzle. The examples of such purely inadvertent part 39). The FAA does not concur that these commenter contends that takeoff in encounters would be helpful. AD’s should be withdrawn. As stated in freezing rain should always be One commenter asks the following the preamble to the proposals, the FAA prevented, but takeoff in freezing drizzle questions in regard to the same note: should be possible after applying has not required that airplanes be —What are ‘‘reasonable efforts?’’ appropriate deicing or anti-icing shown to be capable of operating safely —What does ‘‘immediately exit’’ mean? treatments. One commenter requests in icing conditions outside the icing Are the procedures for immediately that the FAA clarify how the procedures certification envelope specified in exiting listed in the Air Traffic for exiting freezing rain/freezing drizzle Appendix C of part 25 of the Federal Controller’s Handbook or the conditions would apply to takeoff and Aviation Regulations (14 CFR part 25). Airman’s Information Manual? Can a landing. The commenter states that This means that any time an airplane is pilot operating the airplane in a landing during those conditions might, flown in icing conditions for which it is holding pattern decide on his/her in many cases, be the most expeditious not certificated, there is a potential for own to immediately descend below method of avoiding a hazardous an unsafe condition to exist or develop condition. Another commenter suggests the freezing level without regard to and the flight crew must take steps to that the AFM for Aerospatiale airplanes other traffic? exit those conditions expeditiously. should be revised to reflect standard One commenter states that the note Further, the FAA has determined that dispatch rules; however, the commenter should be placed in the Normal flight crews are not currently provided provides no justification for this request. Procedures Section of the AFM, rather with adequate information necessary to The FAA concurs that visual cues that than in the Limitations Section. The determine when an airplane is operating would prohibit takeoff in freezing rain commenter provides no justification for in icing conditions for which it is not or freezing drizzle were not provided this request. certificated or what action to take when because the FAA’s intent is that these The FAA concurs that clarification of such conditions are encountered. The AD’s address only in-flight icing this note is necessary. The FAA absence of this information presents an encounters. These AD’s do not affect originally included the note in the AD’s unsafe condition because without that any existing regulations or FAA- to clarify the intent of the rules. Since information, a pilot may remain in icing approved operating procedures related the first instruction and the limitation conditions for which the airplane has to takeoff, dispatch, or release of an that follows have been revised in these not been proven to be safe. These AD’s airplane in icing conditions. These AD’s final rules, the FAA finds that inclusion correct the unsafe condition by only prohibit remaining in icing of the clarifying note is no longer requiring AFM revisions that provide conditions when certain visual cues are necessary. In order to avoid any possible the flight crews with visual cues to present on the airplane; these AD’s do misinterpretation of the intent of the determine when icing conditions have not prohibit flight into forecast or limitation on flight in freezing rain or been encountered for which the airplane reported freezing drizzle. Operators freezing drizzle, the FAA has removed is not certificated, and by providing must comply with existing rules that the first note that appeared in paragraph procedures to safely exit those require an airplane to be free of ice prior (a)(1) of the proposals. These AD’s do conditions. to takeoff. Further, the FAA finds no not prohibit flight into forecast or Additionally, in the preamble to the need to revise the AFM for Aerospatiale reported freezing rain or freezing proposed rules, the FAA discussed the airplanes to reflect standard dispatch drizzle. This means that the aircraft is investigation of roll control anomalies to rules. The FAA also considers that not prohibited from takeoff, dispatch, or explain that this investigation was not a Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20619 complete certification program. The Numerous commenters oppose the long-haul jet aircraft is less, the testing was designed to examine only statement contained in the preamble of exposure on a per flight basis is exactly the roll handling characteristics of the the proposals which indicates that since the same. The commenter states that, airplane in certain droplets the size of turbopropeller-powered airplanes are like landing gear life limits, the proper freezing drizzle. The testing was not a more likely to operate at low altitudes measure of exposure to freezing rain/ certification test to approve the airplane and to make more frequent landings, freezing drizzle should be the number of for flight into freezing drizzle. The they are more likely to encounter icing flights, not the number of flight hours. results of the tests were not used to conditions that are outside the icing Another commenter, Saab, states that determine if these final rules were envelope. One commenter states that the Saab Model SAAB 2000 series airplanes required, but rather to determine if mere fact that turbopropeller-powered have a unique power-to-weight ratio, design changes were needed to prevent airplanes make more frequent landings which makes it comparable with a catastrophic roll upset. The roll is irrelevant for the following reasons: airplanes of the same size and, in some control testing and the AD’s must be —Every flight encounters the same relevant areas such as climb viewed as two unrelated actions. atmospheric conditions after takeoff performance and single engine ceiling, even far superior. Operators of those Comment 6. Request To Withdraw the and prior to landing, whether the airplanes can operate the aircraft over- Proposals: Unsafe Condition Is Outside airplane is powered by a the-weather at flight level (FL) 310. This Certification Limits turbopropeller or turbojet engine; —There are numerous airplanes means that these Saab airplanes operate One commenter states that the powered by turbojet engines that on jet profiles and, therefore, are not proposed AD’s should be withdrawn operate on segments equal in duration exposed to the icing conditions that are because the issuance of AD’s to address to those operated by many outside the icing envelope any more the problems of icing encounters turbopropeller-powered aircraft; than the airplanes that are excluded outside of the limits for which the numerous airplanes powered by from the proposals. airplane is certificated is a completely turbojet engines make just as frequent The FAA does not concur that the inappropriate application of part 39 of landings; and proposals should be withdrawn. The the Federal Aviation Regulations (14 —Even if turbopropeller-powered FAA does not intend to imply through CFR part 39). Another commenter aircraft do make more frequent issuance of these AD’s that contends that since the Aerospatiale landings, there is no negative turbopropeller-powered airplanes are aircraft passed all present certification inference to be drawn from that fact; less safe than airplanes having other testing, what transpired beyond the more opportunities are available to types of propulsion systems. As stated limits of certification should not be held ensure that ice has not formed on the in the preamble of the proposals, the against that aircraft. aircraft if the aircraft lands more FAA addressed certain airplanes as a The FAA does not concur that the frequently. higher priority for two reasons: AD’s should be withdrawn on the basis One commenter states that the —Turbopropeller-powered airplanes are that the unsafe condition is outside the altitudes where SLD conditions exist are more likely to operate at low altitudes icing certification envelope. Flight in the same altitudes at which jets would and to make more frequent landings; icing conditions that are outside the encounter those conditions during the therefore, they are more likely to icing certification envelope occurs departure and arrival phases of flight. encounter icing conditions that are during the normal service life of an Flight in SLD conditions that would outside the icing envelope specified airplane. Apart from the visual cues have a negative effect on a in Appendix C of part 25 of the provided in these final rules, there is no turbopropeller-powered airplane would Federal Aviation Regulations (14 CFR existing method provided to the flight have the same effect on a jet, since both part 25); and crews to identify when the airplane is are certificated under the same rules —The flight crew of an airplane having in a condition that exceeds the icing with regard to flight into adverse an unpowered roll control system certification envelope. The appropriate weather, and both fly at about the same must rely solely on physical strength vehicle for providing this method of speeds during the departure and arrival to counteract roll control anomalies, identification is through issuance of an phases of flight. Additionally, another whereas a roll control anomaly that AD. The FAA acknowledges that the commenter adds that no airplane, occurs on an airplane having a Aerospatiale airplane has been shown to whether it is powered by a powered roll control system need not comply with existing certification rules; turbopropeller, turbojet, or turbofan be offset directly by the flight crew. however, no airplane is certificated for engine, is certificated for operation in Since the issuance of the proposed flight in icing conditions outside of SLD conditions. rules, the FAA has reconsidered this Appendix C of part 25 of the Federal Another commenter indicates that reasoning. The FAA acknowledges that Aviation Regulations (14 CFR part 25). icing encounters take place at altitudes simply because an airplane is below the cruising altitudes of most turbopropeller-powered and has a Comment 7. Request To Withdraw the turbopropeller-powered aircraft used in particular flight profile, that airplane Proposals: Proposals Unfairly scheduled service; this also occurs on should not be addressed as a higher Discriminate Against Turbopropeller- airplanes powered by turbojet engines. priority. However, this does not Powered Aircraft Icing encounters occur during takeoff, diminish the significance of the Several commenters state that the climb, descent, holding, and landing necessity of the flight crew of an proposed AD’s should be withdrawn phases of flight on both types of aircraft. airplane having an unpowered roll because the AD’s unfairly discriminate The commenter adds that operating the control system to rely on physical against turbopropeller-powered aircraft. airplane in a holding pattern for a strength to counteract roll control The commenters contend that by issuing prolonged period in severe icing anomalies. The subject airplanes all these proposed rules, the FAA is conditions is hazardous for both turbojet have pneumatic deicing boots and creating a public perception that and turbopropeller-powered aircraft. unpowered aileron controls, which have turbopropeller-powered aircraft are less The commenter explains that, although been common denominators in the safe than other aircraft. the exposure time per flight hour of a accident and incident history 20620 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations concerning flight in icing conditions One commenter questions the words involve SLD conditions. Results of this and, in particular, during conditions ‘‘same type design,’’ and asks if those examination revealed that the type when SLD was believed to be present. words refer to high wing, low wing, T- design characteristics that appear to be Therefore, airplanes having those design tail, or aircraft of another type design. common in these events are pneumatic features are of immediate concern to the Three commenters provide deicing boots and unpowered aileron FAA and were addressed as a higher justification in support of a request that controls. Airplanes having those type priority. Additionally, these AD’s certain airplanes be exempt from these design characteristics appear to be more primarily address airplanes used in AD’s: susceptible to control problems in regularly scheduled passenger service in • de Havilland Model DHC–7 and severe icing conditions. In response to the United States. DHC–8 series airplanes: De Havilland Fokker’s remark that its airplanes will The FAA finds that the comment states that the airplanes it manufactures not experience roll control problems indicating that more frequent landings share a conservative aerodynamic since those airplanes do not have provides more opportunity to verify that design philosophy that yields unshielded horn balances, the FAA has ice has not formed is irrelevant. It also exceptional low-speed handling determined that horn balances on the could be said that more frequent qualities and demonstrated benign accident airplane were not the source of landings gives more opportunity for ice handling qualities in icing conditions. the uncommanded aileron motion. to form. The FAA agrees with the De Havilland adds that two-thirds of the Design similarities of the wing, tail, or statement that holding for prolonged roll control authority of these airplanes ailerons do not appear to be a common periods in severe icing conditions is is provided by hydraulically powered denominator among airplanes involved hazardous for all aircraft types. The roll spoilers. A second commenter adds in accidents or incidents where SLD FAA is considering initiating an that increased testing has been conditions may have been present. assessment of the need to prohibit all conducted on these airplanes. Saab asks for removal of the sentence • Fokker F27 Mark 100, 200, 300, aircraft from continued flight in severe that reads, ‘‘Since an unsafe condition 400, 500, 600, 700, and 050 series icing conditions as defined in these has been identified that is likely to exist airplanes: Fokker states that the leading AD’s. or develop on other airplanes of the edge boots on Fokker Model F27 series same type design * * *.’’ Saab states Although Transport Canada Aviation airplanes and Model F27 Mark 050 that this sentence implies that Saab does not request that the proposed AD’s series airplanes extend to a chord wise Model SF340A and SAAB 340B series be withdrawn, the commenter indicates position, 12.5 percent wing chord, airplanes have a problem and that this that roll control anomalies could exist which precludes all but the very largest problem is ‘‘likely to develop on other for all aircraft whether they have droplets impinging on the unprotected airplanes of the same type design.’’ Yet, powered or unpowered roll control surfaces. Fokker adds that since the there have been no reported problems systems. Transport Canada Aviation accident airplane has unshielded horn on those airplanes, which are not of the adds that some jet-powered aircraft have balances and the affected Fokker same type design as all other unpowered ailerons. airplanes do not have these unshielded turbopropeller-powered airplanes. The FAA concurs that roll anomalies horn balances, Fokker airplanes will not Transport Canada Aviation does not could exist for all aircraft whether they experience roll upset problems. Fokker request that the proposals be have powered or unpowered roll control indicates that aerodynamically withdrawn; however, the commenter systems. However, these AD’s address balancing the control surfaces by means requests that the FAA revise the same airplanes having both deicing boots and of unshielded horn balances was not phrase discussed by Saab. Transport unpowered aileron controls. The FAA applied because of the bad service Canada Aviation requests that the acknowledges that other airplanes that experience of the Vickers Viking aircraft phrase be reworded as follows: ‘‘Since have powered ailerons may be subject to in 1946. an unsafe condition has been identified roll problems in severe icing conditions • Beech Model 200 and 200C where aircraft icing certification is not due to loss of lift. However, the FAA is airplanes: Raytheon states that these adequate to address the conditions that not aware of a mechanism that would particular airplane models are not are outside of Appendix C of FAR part allow ice to produce an uncommanded normally considered to be commuter 25 * * *.’’ control deflection on airplanes having aircraft, and that issuance of an AD The FAA does not concur with Saab’s powered flight control systems. In would be contrary to the stated purpose request. The FAA acknowledges that addition, airplanes having powered roll of the proposals because most of these there have been no reported problems control systems do not have direct airplanes are used in non-revenue involving severe icing conditions on feedback of aerodynamic forces to the service. Raytheon states that these Saab airplanes. However, Saab Model pilot. However, the FAA is considering airplanes are all low wing aircraft. SF340A and SAAB 340B series initiating an assessment of the need to Aerospatiale Model ATR–72 series airplanes have pneumatic deicing boots apply similar limitations to other airplanes (the accident airplane) is 50 and unpowered aileron controls, which aircraft types. percent larger and carries over twice the have been determined to be the common number of passengers as these Beech Comment 8. Request To Withdraw the denominators among the airplanes aircraft. For these reasons, as well as Proposals: Affected Airplanes Are Not involved in accidents and incidents in other differences in the geometry of the severe icing conditions. Therefore, the Same Type Design as Accident Airplane airplanes (i.e., relative aileron span), FAA has determined that when severe Several commenters contend that the Raytheon states that the supposition of icing conditions are encountered on proposals should be withdrawn because an icing hazard in these aircraft is these Saab airplanes, those conditions the FAA has not established clearly that purely speculative. must be exited. the airplanes addressed in the proposed The FAA does not concur that any of Although the FAA has no technical rules have the same type design as the the addressed airplanes should be objection to the revised wording Aerospatiale Model ATR–72 series exempt from these AD’s. The FAA has proposed by Transport Canada Aviation, airplane that was involved in an examined the accident and incident this sentence does not reappear in the accident in October 1994 that occurred history in icing conditions and, in final rules. Therefore, no change to the in severe icing conditions. particular, those events believed to final rule is necessary. Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20621

Comment 9. Request for Explanation of • Another commenter has not does not request that the proposed rules the Applicability of the AD’s experienced any icing related upsets or be withdrawn.) The FAA does not concur with this One commenter requests an control irregularities in its fleet of de request. As explained previously, the explanation of the methodology used by Havilland Model DHC–8 series FAA has issued AD’s for airplanes the FAA to determine that AD’s should airplanes and Beech Model 1900 series having pneumatic deicing boots and not be issued for Cessna and Piper airplanes. • One commenter operates 21 Beech unpowered aileron controls as a multi-engine aircraft. The commenter Model 1900D airplanes, 32 EMBRAER priority. Airplanes having these design also asks if an AD similar to the Model EMB–120 series airplanes, and features are of immediate concern to the proposed rules exists for Boeing Model 41 Aerospatiale Model ATR–42 and FAA because these features have been 737 series airplanes. The commenter ATR–72 series airplanes; none of these common denominators in the accident indicates that Model 737 series airplanes have experienced any icing and incident history concerning flight in airplanes have demonstrated abnormal incidents this season. icing conditions and, in particular, and unexplained roll tendencies. • One commenter indicates that during conditions when SLD was The FAA provides the following airplanes produced by Beech, believed to be present. The FAA is clarification for this commenter. No EMBRAER, and Jetstream Aircraft considering the need for rulemaking to AD’s have been issued for Piper Limited (JAL) have no record of impose similar limitations on other airplanes or Boeing Model 737 series uncommanded roll due to asymmetrical aircraft. airplanes. However, as reflected in the build-up of ice on surfaces beyond the table above, the FAA has issued an AD deicing boots. Comment 11. Request To Withdraw the for Cessna Model 208 and 208B • One commenter notes that it has not Proposals: Extensive Testing Revealed airplanes. experienced any unusual icing No Icing Problems Most of the aircraft affected by these characteristics on its fleet of EMBRAER Several commenters request that the final rules are used primarily in Model EMB–120 series airplanes and proposals be withdrawn because regularly scheduled passenger service in Aerospatiale Model ATR–72 series extensive testing revealed no icing the United States. However, there are airplanes. problems on many different some airplanes affected by the final • Fairchild notes that in over 26 years turbopropeller-powered airplanes, even rules that are not used in regularly and 15,000,000 flight hours in passenger though those tests likely exceeded any scheduled passenger service. Two of service, there has never been a reported icing certification tests ever performed these are Cessna Model 208 and 208B incident where the controllability of on other civil aircraft types, including airplanes. Those airplanes were Fairchild Aircraft SA226 and SA227 large jet-powered transport category included in the final rules because of series airplanes were in jeopardy as a airplanes. Fokker states that Fokker their accident and incident history in result of any icing encounters (including Model F27 series airplanes do not icing conditions. The FAA is SLD icing encounters). demonstrate unacceptable roll control considering an assessment of the need • The Luftfartsverket (LFV), which is characteristics in severe icing to prohibit all aircraft from continued the airworthiness authority for Sweden, conditions; however, Fokker submits no flight in severe icing conditions. states that no ice build-up behind the data to substantiate this statement. The FAA does not concur. The FAA Comment 10. Request To Withdraw the wing boots has ever been reported on Saab Model SF340A, SAAB 340B, or finds that successful completion of the Proposals: Service Experience of roll upset evaluation is not a valid Affected Airplanes Is Satisfactory SAAB 2000 series airplanes. Additionally, the leading edge on these reason for withdrawing the AD’s. On the Several commenters indicate that the airplanes can be inspected easily during contrary, if the evaluation had FAA should withdraw the proposed flight. demonstrated anomalies, the FAA may AD’s in light of the satisfactory service • Saab remarks that no roll anomaly have concluded that action beyond that experience of the airplanes addressed in problems in icing conditions have required by these AD’s was necessary to the proposals. The commenters believe occurred during the extensive service address the demonstrated unsafe that the FAA is singling out experience of Saab Model SF340A and condition. The testing was designed to turbopropeller-powered aircraft without SAAB 340B series airplanes. examine only the roll handling any regard for the operational record of The FAA does not concur that the characteristics of the airplane in certain those aircraft. AD’s should be withdrawn. The fact that droplets the size of freezing drizzle to Several commenters provide an airplane has a perfect safety record determine if any design changes are justification in support of this request: in icing does not negate the fact that no necessary to prevent catastrophic • One commenter states that de airplane has been certificated for flight control surface deflection. The testing Havilland airplanes have been into SLD. The FAA has determined that was not a certification test to approve successfully operated for over 30 years a need exists to provide the flight crew the airplane for flight into freezing without one instance of roll upset or with useful safety-related information drizzle since many of the components flight control problems. regarding the limitations of the airplane and their functions were not tested (e.g., • De Havilland indicates that de concerning flight in severe icing pitch control, engine and propeller, Havilland Model DHC–8 series conditions. The purpose of issuing these performance, stall warning, windshield, airplanes have been in service for 11 final rules is to provide the flight crew air data sensors and fuel system vents). years and have accumulated 6 million with such information. Further, freezing rain was not tested. flights and 5 million flight hours One commenter, Transport Canada Satisfactory demonstration of those tests without any incidents due to icing. Aviation, requests that the proposals does not remove the FAA’s • De Havilland adds that de apply only to those airplanes that have responsibility to provide a safe Havilland Model DHC–7 series a demonstrated history of in-service operating environment for the airplanes have been in service for 18 problems as a priority. The commenter passengers and crew. years and have accumulated 3.7 million states that the hazards relating to JAL comments that its airplanes are flights and 2.7 million flight hours operation in icing conditions exist for not subject to the addressed unsafe without any incidents due to icing. all types of aircraft. (The commenter condition, and that the FAA had 20622 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations concurred with this contention. JAL material and mandatory training for conclusion, although AFM revisions states that the FAA agreed that, by the issuance of an AD is not appropriate, were not required by an AD, AFM controllability evaluation process, all nor would this adequately address the changes were mandated indirectly by a Jetstream aircraft types had been unsafe condition. The FAA fully new part 121 regulation. demonstrated to be not susceptible to supports the development of advisory The commenters also reference roll control anomalies in freezing rain or materials and training. Part 121 ground deicing. Part 91 (‘‘General freezing drizzle conditions. (‘‘Certification and Operations: Operating and Flight Rules’’) of the The FAA does not concur with JAL’s Domestic, Flag, and Supplemental Air Federal Aviation Regulations (14 CFR position concerning its airplanes. All Carriers and Commercial Operators of part 91) prohibits takeoff of an airplane Jetstream airplanes affected by these Large Aircraft’’) and part 135 (‘‘Air Taxi unless the airframe is clear of ice; AD’s successfully completed the roll Operators and Commercial Operators’’) therefore, there is no need to provide upset evaluation. However, as stated of the Federal Aviation Regulations (14 additional limitations concerning the previously, no airplanes were tested in CFR parts 121 and 135) require that amount of ice that would be acceptable freezing rain conditions. The roll upset appropriate training concerning for takeoff. However, in the case of evaluation only addressed conditions limitations such as those contained in severe icing conditions addressed by that were believed to have existed these AD’s be incorporated into air these final rules, the AFM’s currently during an accident involving a transport carriers’ training programs. However, allow flight in icing, but the AFM does category airplane that occurred in the FAA’s position is that the not define when the limits of the October 1994. Therefore, since no development and use of such advisory certificated icing operation envelope airplane has been tested in all freezing materials and training alone are not have been exceeded. rain and freezing drizzle conditions, no adequate to address the subject unsafe Concerning the issue of clear air airplane has been demonstrated to be condition. Currently, the AFM’s specify turbulence, issuance of an AD was not safe for continued flight in these that the affected airplanes are required because an airspeed limitation conditions. certificated for flight in icing conditions; associated with turbulent air penetration was already in the AFM’s. Comment 12. Request To Withdraw the however, the AFM’s do not specify a Therefore, in this case, the issue was Proposals: Publish Advisory Materials method of determining whether the addressed in the AFM as well as and Require Training certification limits for those conditions have been exceeded. Consequently, the through awareness and training. Several commenters request that, in FAA finds that these AFM’s must be lieu of issuing the proposed rules, the Comment 13. Request To Withdraw the revised to provide limitations for flight Proposals: Incorporate Operational FAA publish appropriate advisory in icing conditions and to provide the Issues Into a Training Curriculum materials and require training for flight crew with a method of recognition, avoidance, and exit from determining when those limitations Two commenters request that the severe icing encounters as part of the have been exceeded. proposals be withdrawn because the required severe weather training for The FAA does not concur that proposed AD’s address an operational pilots and dispatchers. Two commenters amending part 121 of the Federal issue that should be incorporated into suggest that the FAA include such Aviation Regulations (14 CFR part 121) an operator’s training curriculum. One requirements in the operating rules in lieu of issuing these AD’s is commenter states that pilots must be specified in part 121 (‘‘Certification and appropriate. The FAA’s position is that made aware of the hazards of icing and Operations: Domestic, Flag, and the appropriate place to inform the that extended operation of an airplane Supplemental Air Carriers and flight crew of the limitations of the in any icing encounter that results in Commercial Operators of Large airplane is in the AFM. The appropriate significant airframe accretion of ice is Aircraft’’) of the Federal Aviation vehicle for mandating such AFM unacceptable. Regulations (14 CFR part 121). Another revisions is through issuance of an AD. The FAA does not concur that the commenter indicates that, since jets and In addition, an AD will ensure that the AD’s should be withdrawn based on the piston-engine aircraft also could incorporation of such AFM revisions is commenters’ request. The FAA develop ice shapes other than those not left to each operator’s individual acknowledges that these AD’s address tested, training should not be provided discretion and that flight crews receive an operational issue. When the only to pilots of turbopropeller-powered pertinent information. The FAA may requirements of these AD’s are airplanes, but to pilots of all aircraft. consider an assessment of the need to accomplished and the AFM limitations Some commenters also suggest that the provide training to pilots of all aircraft are revised, this material will be FAA has successfully addressed other types for flight in severe icing incorporated necessarily, as explained issues through increased awareness and conditions. previously, into the training curriculum training requirements, rather than by The commenters reference windshear for the flight crews and dispatchers, if issuing AD’s against every airplane type as an example of an issue that was applicable, in the operator’s approved design to require revising the handled successfully without issuance training program. In this manner, pilots Limitations Section of the AFM. The of an AD to revise the AFM’s. In this and dispatchers, if applicable, will be commenters cite windshear, ground case, the AFM’s for all airplanes having informed of the hazards of icing and deicing, and clear air turbulence as an onboard windshear system were that continued operation of an airplane examples of such issues. The revised to provide the flight crew with in certain icing conditions is prohibited. commenters contend that, except where procedures for responding when the configuration changes are needed, such system gives an alert. Although no AD Comment 14. Request To Withdraw the as in the case of windshear detection was issued to mandate these AFM Proposals: Require Training for Air devices, improved awareness and revisions, without revising the AFM, Traffic Controllers and Weather training programs—not AD’s—have operators could not comply with the Specialists been highly effective in achieving section of part 121 of the Federal Two commenters request that the needed safety improvements. Aviation Regulations (14 CFR part 121) FAA implement additional policy to The FAA does not concur. The FAA that requires installation of the require training for air traffic controllers considers that substituting advisory windshear detection devices. In and weather specialists in the Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20623 recognition, avoidance, and procedures to provide the flight crew with visual proposals be withdrawn for this to exit severe icing conditions. cues which indicate that icing particular reason.) JAL indicates that the The FAA does not concur that these conditions have exceeded the existing AFM revisions have already AD’s should be withdrawn. However, capabilities of the ice protection been FAA-approved. the FAA acknowledges that equipment, and with procedures to The FAA does not concur with the implementation of these AD’s may safely exit those conditions. No change commenters’ requests. The FAA necessitate additional training beyond to the AD’s is necessary. acknowledges that the AFM revisions that which is already required for air required by these final rules will traffic controllers and weather Comment 17. Request To Withdraw the supersede previously approved AFM specialists. The FAA may consider the Proposals: AFM Revisions Already Are revisions. However, the FAA is unaware need to provide training concerning Required of any AFM that addresses all of the recognition, avoidance, and procedures One commenter requests that the provisions specified in these final rules, for exiting severe icing conditions. proposals be withdrawn because section nor of any AFM that contains specific However, the intent of these AD’s is to 121.133 (‘‘Manual Requirements: visual cues that the FAA has not provide the flight crew with recognition ‘Preparation’ ’’) of the Federal Aviation included in the final rules. Even if AFM cues for, and procedures for exiting Regulations (14 CFR 121.133) already material currently exists that does from, severe icing conditions. The requires that operators incorporate contain all of the provisions of the final appropriate vehicle for requiring that revisions into the AFM’s; therefore, rules, the FAA finds that issuance of an such information be included in the issuance of the proposed AD’s is AD would still be necessary to mandate AFM’s is through issuance of an AD. unnecessary. the provisions of the AFM revisions. The FAA does not concur. Section However, the FAA would consider a Comment 15. Request To Withdraw the 121.133 of the Federal Aviation request for approval of an alternative Proposals: Add a Caution to the AFM Regulations (14 CFR 121.133) does not method of compliance, in accordance One commenter requests that, in lieu specifically require that AFM’s be with the provisions of this AD, for those of issuing the proposed AD’s, a updated to current revisions. Section operators having AFM’s that already ‘‘Caution’’ should be added to the AFM 121.141 (‘‘Airplane or Rotorcraft Flight contain all of the provisions of the final to inform pilots to exit icing conditions Manual’’) of the Federal Aviation rules. if ice was observed to be forming aft of Regulations (14 CFR 121.141) requires Another commenter requests that the the protected surfaces of the wings. The that the current AFM be carried on the FAA withdraw the proposal that applies commenter states that information aircraft, but does not require to Fairchild Model SA226 and SA227 regarding the use of flaps and the incorporation of the most current series airplanes. The commenter states autopilot in icing conditions could also revisions. Additionally, the commenter that the AFM for those airplanes be incorporated into the AFM. The does not address the need to change the currently contains visual cues to aid the commenter does not indicate which AFM’s for airplanes that operate under flight crew in recognition of weather section of the AFM should include this parts 135 (‘‘Air Taxi Operators and conditions conducive to SLD. This AFM material. Commercial Operators’’) and 91 also provides procedures for avoidance The FAA does not concur. The FAA (‘‘General Operating and Flight Rules’’) of such conditions. The commenter finds that the requirement to exit severe of the Federal Aviation Regulations (14 adds that these AFM procedures result icing conditions and information CFR parts 135 and 91). The appropriate in additional operating limitations on concerning use of the autopilot during vehicle for ensuring that the Limitations the aircraft with regard to severe flight in those conditions must be Section of the AFM’s is changed is weather conditions. The commenter included in the Limitations Section of through issuance of an AD. believes these AFM procedures address the AFM. Additionally, information all current FAA requirements. Comment 18. Request To Withdraw the concerning use of the flaps during those The FAA does not concur that the Proposals: Use Existing AFM Revisions conditions should be included in the AFM for Fairchild Model SA226 and Procedures Section of the AFM. The The General Aviation Manufacturers SA227 series airplanes addresses all of appropriate vehicle for requiring these Association (GAMA), on behalf of its the proposed requirements of the changes to the AFM is through issuance members, states that some of the proposed rule. For example, the of an AD. affected manufacturers have prepared Limitations section of the AFM for those FAA-approved revisions for the AFM’s airplanes does not require the flight Comment 16. Request To Withdraw the for their products. GAMA indicates that crew to exit severe icing conditions. For Proposals: Require Alternative AFM those revisions incorporate specific this reason, the FAA does not consider Limitation information regarding cues for the AFM for Fairchild Model SA226 and One commenter requests that, in lieu recognizing severe icing conditions and SA227 series airplanes to be equivalent of an AD, the FAA require an alternative procedures for exiting such conditions, to the information specified in these AFM limitation that reads as follows: if encountered. Therefore, if the AD’s. ‘‘This aircraft is certified for flight into proposed AD’s are adopted, the icing conditions as specified by requirements of the AD’s would Comment 19. Request To Withdraw the Appendix C of Part 25. Actual icing supersede the information operators Proposals: Develop Rulemaking To encountered may be greater than have already incorporated into the Address Airplane Certification Outside Appendix C requirements.’’ AFM’s with less appropriate of Appendix C The FAA does not concur. The information that is not type design Three commenters suggest that suggested limitation does not provide specific. instead of arbitrarily prohibiting guidance as to how a pilot can identify One commenter, JAL, requests that operation of the airplane, the FAA and safely exit icing conditions that certain existing AFM revisions for the should undertake a well-designed have exceeded those specified in the affected Jetstream airplanes be cited in research program and, if warranted, icing envelope in Appendix C of part 25 the proposed AD’s for those airplanes in devise a rulemaking plan for of the Federal Aviation Regulations (14 lieu of the content of the proposed AD’s. certification of airplanes outside of CFR part 25). These AD’s are intended (However, JAL does not request that the Appendix C of part 25 of the Federal 20624 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

Aviation Regulations (14 CFR part 25). the potential adverse effects of SLD on requirement that all icing detection One commenter also suggests possible all airplane types. lights must be operative. For de retroactive implementation of a new Havilland Model DHC–7 and DHC–8 Comment 21. Request To Withdraw the Appendix C. series airplanes, the commenter requests Proposals: Establish a Detailed The FAA does not concur because of that the requirement be changed to Reporting System the length of time that would be mandate that at least one outboard and required to implement the commenters’ One commenter requests that the FAA one inboard inspection light be suggestion. The FAA finds that action is establish a detailed reporting system for operative prior to flight into known or required prior to the commencement of inadvertent encounters with severe SLD. forecast icing conditions at night. Since the next icing season to prohibit the The commenter envisions a system that the MMEL contains a provision that a continued flight of airplanes in icing would provide a database for better suitable lamp/light of adequate capacity conditions that have been shown to be identification of controllability issues be available, this is considered unsafe and for which the airplanes have and visual indications related to these acceptable in conjunction with other not been certificated. However, the FAA encounters. indications of freezing rain or freezing is currently considering initiating an The FAA does not concur with the drizzle. Similarly, for de Havilland assessment of the need to revise commenter’s request. The FAA has been DHC–6 series airplanes, the requirement Appendix C and the possibility of its advised that the Regional Airline should be revised to require a suitable retroactive implementation. Association (RAA) has already lamp/light for dispatch at night with Transport Canada Aviation states that established an ‘‘Unusual Icing Reporting one wing inspection light inoperative. Program’’ for the purpose described by the FAA has determined that there may The FAA does not concur. The FAA the commenter; therefore, establishing be a problem with the certification has determined that the justification another reporting program would requirements for icing on de Havilland provided by the commenter is not duplicate this benefit. Model DHC–6, DHC–7, and DHC–8 adequate to enable the FAA to series airplanes, but not the specific Comment 22. Request To Withdraw the determine if the proposed changes are approval or design features of those Proposals: Revise the Master Minimum acceptable. During severe icing airplanes. However, the commenter Equipment List (MMEL) conditions, the flight crew’s workload does not specifically request that the may be high, and there may be no proposals be withdrawn. Two commenters request that, instead The FAA does not concur with the of addressing an MMEL item in an AD opportunity to use the portable lamp/ commenter’s statement. The FAA has [i.e., the icing detection lights light, which, in itself, may create only determined that no adequate referenced in paragraph (a)(1) of the disorientation in the cockpit due to means exists for the flight crew to proposals], the FAA should require that adverse reflections from the glass. The determine when the icing certification the MMEL be revised. A third FAA’s intent in having all inspection limits have been exceeded. The purpose commenter adds that the decision to lights be operative at night is to provide of these AD’s is to provide more clearly change the MMEL should be made by the flight crew the best possible defined procedures and limitations FAA Operations Inspectors based on visibility of the airframe. However, the associated with severe icing conditions. local conditions. One commenter states FAA would consider a request for This does not imply that the that the prohibition of dispatch with approval of an alternative method of certification requirements for icing are any inoperative ice detection lights compliance, in accordance with the inadequate. would preclude any efforts by an provisions of these AD’s, provided that operator to enhance safety by installing adequate justification is presented to Comment 20. Request To Withdraw the a second set of bulbs. The commenter support such a request. Proposals: Issue a ‘‘General AD’’ for All adds that under this proposed rule, this Airplane Types Comment 23. Request To Withdraw the type of action would be penalized by Proposals: Certify Airplanes for Flight in One commenter requests that a simply doubling the chances of a Conditions Outside Appendix C ‘‘general AD’’ be issued to prohibit all burned out bulb grounding the aircraft. airplane types from inadvertent flight In practice, if one were to add a fully One commenter implies that the into hazardous SLD conditions. Another redundant set of bulbs, it would airplanes affected by the proposed rules commenter adds that if encounters with enhance safety by allowing the must be rectified to a level beyond the freezing rain/freezing drizzle conditions equivalent of the current illumination present certification requirements for must be reported to Air Traffic Control, level even with a bulb burned out. flight in icing. such reporting also should apply to The FAA does not concur with these The FAA does not concur. The final flight crews of all airplane types. requests. FAA Operations Inspectors are rules do not require certification of the The FAA does not concur with the not authorized to make MMEL airplane beyond the current certification commenter’s request. For the reasons revisions. The FAA has determined that requirements for flight in icing specified discussed earlier in the preamble of this it is prudent to address the icing in Appendix C. These AD’s simply AD, the FAA has determined that detection lights in these final rules to provide the flight crew with visual cues airplanes having pneumatic deicing ensure uniform and immediate which indicate that icing conditions boots and unpowered aileron controls application of the requirements of the have exceeded the capabilities of the ice are of immediate concern and have been AD’s. Concerning the example provided protection equipment, and with addressed as a higher priority. The FAA by one of the commenters, if an operator procedures to safely exit those finds that action is required prior to the chooses to add a fully redundant set of conditions. commencement of the next icing season bulbs, that operator should request One commenter requests that the to prohibit the operation of these approval of an alternative method of proposal for de Havilland DHC–6 series airplanes in icing conditions that have compliance in accordance with the airplanes be withdrawn because this been shown to be unsafe and for which provisions of this final rule. airplane model is type certificated in the airplanes have not been certificated. Although Transport Canada Aviation Canada, which is a country with a However, the FAA is currently does not request that the proposals be higher standard than the United States considering initiating an assessment of withdrawn, it requests a revision to the for operating in icing conditions. Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20625

The FAA does not concur. This (APA) to comment on the proposed the visual cues defined in the AD’s. commenter did not submit data to the rules.’’ Specifically, the commenter Therefore, the pilot determines when FAA to substantiate that the airplane asks: severe icing conditions exist. has been shown to be safe for flight —What is unusual icing? The terminology ‘‘splatter effect’’ did outside the icing certification envelope —Does the pilot, Air Traffic Control, not appear in the proposed rules. The specified in Appendix C. Additionally, dispatch, or the FAA determine when FAA infers from the commenter’s the FAA is unaware of any foreign civil the conditions exist? question that the commenter is aviation authority having certification —What is splatter effect? referencing terminology used in requirements for icing conditions that —Where are the operating instructions paragraph (a)(2) of the proposed AD’s. are outside of the icing certification incorporated—in the AFM, training ‘‘Droplets that splash or splatter on envelope used in the United States. manuals, or some other document? impact at temperatures below +5 degrees Celsius OAT’’ is a visual cue Comment 24. Request To Withdraw the The FAA infers from the commenter’s that was included in the proposed AD’s Proposals: Proposals Prohibit Takeoff or remarks that the commenter requests the as a method of identifying severe icing Approach in ‘‘Light Freezing Drizzle’’ proposed AD’s be withdrawn because informed comments could not be conditions. Conditions Concerning incorporation of operating provided. One commenter requests the instructions, these final rules specify The FAA does not concur that the proposals be withdrawn because the that the AFM’s be revised. The AD’s do AD’s should be withdrawn on this basis. proposed limitation would prohibit not specify that any other manuals or The FAA does not agree that the public takeoff or approach when ‘‘light freezing documents be revised. However, has been deprived of the ability to drizzle’’ conditions that are caused by information that is included in the AFM provide informed comments, as light precipitation falling through a thin as a limitation is necessarily included in required by the APA. In general, the layer of cold surface air below warmer the training program. air above are reported on the surface. APA requires that notice of the terms or The commenter maintains that with substance of a proposed rule be Comment 26. Request To Clarify Scope accomplishment of the appropriate published in the Federal Register. The of Icing Conditions Addressed ground deicing precautions prior to purpose of this requirement is to ensure Transport Canada Aviation suggests takeoff, no hazard to the operation of the that federal agencies thoroughly that the proposals, which address only airplane is posed. consider all information and opinions freezing rain/freezing drizzle The FAA does not concur that the submitted by the public before any conditions, are not adequate to cover all AD’s should be withdrawn for this requirements are imposed. Notice is hazards related to operation of aircraft reason. These AD’s do not affect any intended to improve both the quality of in icing conditions. The commenter existing regulations or FAA-approved the regulations and their acceptability to makes no specific request. operating procedures related to takeoff, the public. The FAA finds that none of The FAA concurs that these AD’s do dispatch, or release of an airplane in the questions raised by the commenter not address all icing related hazards. icing conditions, nor do these AD’s identify areas in which the commenter The FAA’s intent is to minimize the prohibit operation in specific has not been provided a reasonable potential hazards associated with meteorological conditions. These AD’s opportunity to comment. The fact that operating the airplane in severe icing only prohibit remaining in icing the commenter raises questions suggests conditions by providing the flight crews conditions when certain visual cues are that the commenter considers a need for with more clearly defined procedures present on the airplane. Operators must further clarification. Even if the and limitations associated with such comply with existing rules that require commenter is correct in that these conditions. However, no change to the an airplane to be free of ice prior to questions require clarification, that fact final rules is necessary. takeoff. Therefore, takeoff in ‘‘light in itself is a comment that can be freezing drizzle’’ would only be addressed properly by simply clarifying Comment 27. Request To Expand the prohibited by existing regulations or terms. The fact that clarification is Applicability of the AD’s FAA-approved operating procedures, necessary does not mean that the public One commenter, the CAA, suggests not by these AD’s. As explained has been denied reasonable opportunity that the ‘‘coverage’’ of the proposals previously, the FAA considers that to comment. should be stated clearly. The CAA landing the airplane when freezing rain/ In response to the commenter’s believes that a restriction to those freezing drizzle conditions are questions, the FAA provides the operations in ‘‘regularly scheduled encountered would, in many cases, be following clarification. The term passenger service’’ is not warranted for the most expeditious method of exiting ‘‘unusual icing’’ did not appear in the a safety issue as it does not cover cargo, the conditions. Such landing would be proposed rules. However, the phrase charter, or private operations. The in compliance with the limitation that ‘‘unusually extensive ice’’ is referenced commenter does not specify which requires the flight crew to exit the in paragraph (a)(1) of the final rules. airplane models should be addressed. severe icing conditions. [This reference appears in paragraph The FAA infers from the commenter’s (a)(2) of the final rule for Aerospatiale remarks that it requests that the Comment 25. Request To Withdraw the airplanes.] ‘‘Unusually extensive ice’’ proposed AD’s be applicable to other Proposals: Proposals Leave Unanswered accrued on the airframe in areas not airplane models that are used in cargo, Questions normally observed to collect ice is a charter, or private operations that may One commenter contends that the visual cue that is subject to have been excluded from the proposals leave unanswered questions. interpretation by the flight crew; applicability of these AD’s. The commenter alleges that without the therefore, a specific definition of The FAA does not concur that the answers to those questions, affected ‘‘unusually extensive ice’’ cannot be applicability of these AD’s should be parties are deprived of the ability to provided. expanded to include additional airplane provide informed comments and, These AD’s address changes to AFM models used primarily in cargo, charter, thereby, are ‘‘denied their rights under limitations, which pertain to the pilot or private operation. The FAA is the Administrative Procedures Act since the pilot is responsible to look for currently considering the need for 20626 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations additional rulemaking to address other lower wing would not be a reliable Transport Canada Aviation states that airplane models having pneumatic visual cue. Two commenters suggest the term ‘‘protected area’’ may not be deicing boots and unpowered aileron that specific visual cues be provided for readily recognizable by the flight crew; controls that are used in these types of each airplane model. One of these for example, not all of a deicing boot service that were not addressed by these commenters states that subjective cues surface is ‘‘protected area.’’ [This AD’s. Additionally, the applicability of may be of limited benefit if the pilot’s terminology appears in the second these final rules indicates that the AD’s experience with icing is inadequate. The visual cue (in the proposals for apply to ‘‘all’’ of the airplane models other commenter adds that subjective airplanes other than Aerospatiale identified, certificated in any category. visual cues will result in varying airplanes) and in the autopilot This means that the AD’s apply to all of interpretations (i.e., some unnecessary limitation in paragraph (a)(1) of the the affected airplanes, regardless of how course changes in altitudes or service proposals. For Aerospatiale airplanes, those airplanes are operated (including interruptions caused by overly this terminology appears in the passenger service, cargo, charter, or conservative interpretations). Transport secondary indications in paragraph private operation). Canada Aviation does not request more (a)(1) of the proposal.] The FAA infers that the commenter requests that more Comment 28. Request for Design specific visual cues; but states that specific language than ‘‘protected area’’ Changes to the Airplanes ‘‘unusually extensive ice,’’ ‘‘normally observed,’’ and ‘‘farther back than be used. One commenter requests that the FAA normally observed’’ are all variable The FAA does not concur that this require design changes to the airplanes, terms that are largely dependent on terminology should be revised. The which, when accomplished, will allow flight crew experience. The commenter FAA considers that a pilot understands elimination of the AFM limitations. The contends that limitations and that a portion of the deicing boot would commenter states that abnormal roll procedures described using these terms be considered to be unprotected. control anomalies could be eliminated will not be consistently interpreted. In Therefore, no additional clarification or by design changes that prevent any ice addition, Transport Canada Aviation definition of the term ‘‘protected area’’ shapes from forming by using states that ice on the lower wing surface is necessary. supplemental ice protection added to aft of the protected area, by itself, is Comment 30. Request To Reference existing pneumatic boots or other ice unlikely to cause a hazard. Moreover, protection installations. The commenter Clear Icing Conditions and Clear the presence or absence of such ice Component of Mixed Icing Conditions concludes that, given this added cannot be used as an indication of any protection, restricting flight in freezing One commenter also asks that all hazardous accumulation on the upper drizzle could be reduced to allow references to freezing rain and freezing wing surface or on the horizontal exposure to these atmospheric drizzle environments and visual cue stabilizer. conditions for a reasonable time and identification reference clear icing would not require immediately exiting The FAA does not concur with the conditions and the clear component of these conditions when encountered as commenters’ request to provide more mixed icing conditions. According to presently stipulated. specific (or airplane-specific) visual the commenter, mixed icing conditions The FAA does not concur that it cues. The FAA agrees with the can contain areas of freezing rain and/ should require design changes to commenters’ assertion that, under or freezing drizzle. The commenter airplanes in these AD’s. Currently, the certain circumstances, examination of notes that mixed icing has taken on two FAA is unaware of any design changes the undersurface of a high wing may not different definitions within the aviation that would allow elimination or be reliable. The FAA also agrees that community—the ‘‘engineering’’ reduction of the AFM limitations other cues, such as unusually extensive definition (which is defined in an FAA specified in these AD’s. However, if ice accrued on the airframe in areas not icing handbook) and the definition such design changes are developed, normally observed to collect ice and pilots use (which includes areas of clear approved, and become available, the accumulation of ice on the propeller and rime ice). The commenter states FAA would consider additional spinner farther aft then normally that a clear definition of these rulemaking to require such changes. The observed, are subjective and that conditions is needed. The commenter FAA finds that even if the ice protection reliance on pilot judgment and adds that only pilot reports can show system prevented the formation of ice experience is necessary in such cases. that freezing rain/freezing drizzle exists shapes in front of the ailerons when the Additionally, the FAA fully supports because forecasting of these conditions airframe is exposed to certain freezing the development and use of airplane- is inadequate. The commenter indicates drizzle conditions, other meteorological specific cues by operators and that while the Aerospatiale airplanes conditions still exist (e.g., freezing rain) manufacturers. Unfortunately, no have side window cues that will for which the airplane would not be commenter provided airplane-specific accurately identify freezing rain or certificated. cues during this comment period. freezing drizzle, pilots of other airplanes In summary, the FAA finds that the without such a sophisticated cue may Comment 29. Request for More Specific combined use of the generic cues erroneously report mixed icing. Visual Cues provided and the effect of the final rules The FAA does not concur. The FAA One commenter requests that the FAA in increasing the awareness of pilots acknowledges that freezing rain and provide more specific visual cues for concerning the hazard of operating freezing drizzle may be reported as identification of freezing rain or freezing outside of the certification icing clear/mixed icing conditions. However, drizzle conditions. The commenter envelope will provide an acceptable the flight crew must exit icing states that the generic visual cues level of safety. However, for those conditions that produce the visual cues provided in the proposed AD’s are not operators that elect to identify airplane- specified in the final rules. Exiting the adequate for aircraft types that specific visual cues, the FAA would icing conditions is not dependent upon frequently operate in and encounter consider a request for approval of an the terminology used to describe the SLD conditions. For example, ice could alternative method of compliance, in conditions. Therefore, the FAA has be forming on the upper wing and not accordance with the provisions of this determined that it is not necessary to the lower wing; therefore, looking at the AD. include references to clear icing Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20627 conditions and the clear component of that do not have this type of airfoil. the test conditions that existed during mixed icing conditions. In addition, the Second, the FAA has examined the data the tanker testing conducted at Edwards FAA has determined that including a submitted by the commenter, and Air Force Base, which was intended to discussion in these AD’s of the disagrees with the commenter’s be a ‘‘before modification/after phenomenon of mixed icing conditions assertion concerning the formation of modification’’ validation program, were as it relates to the current state-of-the-art ice ridges. The formation of ice ridges not identical. The commenter adds that weather forecasting would be premature depends on many factors. Ice ridges no modification will ensure that any because no clear definition of this have been observed to form in areas airplane is safe while flying in icing phenomenon has been agreed upon where there is no pressure (commonly, conditions outside those specified in among the aviation community. The ‘‘suction’’) peak. However, the Appendix C. FAA is currently considering an impingement location of large droplets The FAA does not concur with the assessment during which various icing- is more relevant to the development of commenter’s request for a re-evaluation related subjects, including mixed icing ice ridges than the particular pressure of the modified deicing boots. The conditions, would be addressed. distribution. The commenter does not modified deicing boots for these address the fact that, regardless of the airplanes were subjected to an extensive Comment 31. Request for Research and type of airfoil on an airplane, a certification program by both the FAA Use of Wing-Mounted Ice Detectors substantial sharp edge protuberance in and the Direction Ge´ne´rale de l’Aviation One commenter requests that wing- the vicinity of the suction peak can have Civile (DGAC), which is the mounted ice detectors, which provide adverse consequences to the airworthiness authority for France. FAA real-time icing severity information (or aerodynamic performance of the airfoil. approval of the modified boots was immediate feedback) to flight crews, Regardless of the cause of location of ice based on engineering analyses, wind continue to be researched and used formations, prevention or removal of the tunnel testing, flight testing in natural throughout the fleet. The FAA infers ice is certainly an acceptable remedy for icing conditions, and a validation from this commenter’s request that the such conditions, should those program involving a United States Air commenter asks that installation of conditions occur. For example, Force icing tanker. This testing verified these ice detectors be mandated by the Aerospatiale extended the deicing boots that the modified boots continue to FAA. to prevent the formation of adverse ice perform the intended function within While the FAA supports the ridges. the Appendix C icing envelope. In development of such ice detectors, the addition, the extended deicing boots FAA does not concur that installation of Comment 33. Request for Approval of were shown to adequately protect the these ice detectors should be required. Improved Deicing Equipment for airplane from the larger, supercooled The specifications for automatic Aerospatiale Airplanes water droplets that are believed to have detectors having the capabilities to ATR requests that paragraph (b) of the existed in the area at the time of the differentiate among freezing rain, proposed rule for Aerospatiale airplanes accident in October 1994. freezing drizzle, and other icing be revised to indicate that installation of It should be noted, however, that it is conditions have not been determined. any improved version of deicing not intended that the modified boots However, if such ice detectors are equipment that is approved by the FAA provide protection in all possible icing developed, approved, and become is acceptable for compliance with the conditions, including freezing rain/ available, the FAA may consider further requirements of that paragraph. The freezing drizzle. However, the FAA rulemaking action to require installation commenter provides no justification for considers that the combination of the of such equipment. its request. enlarged deicing boots, the AFM The FAA does not concur with the operational procedures and restrictions, Comment 32. Request to Limit the commenter’s request to revise the AD. and the visual cues which indicate entry Applicability of the AD’s However, if an improved version of into freezing rain/freezing drizzle One commenter requests that the deicing equipment is developed, conditions provides for an enhanced applicability of the proposals be limited approved, and available, the FAA would level of safety during inadvertent flight to airplanes having NACA 430xx consider a request for approval of an in these conditions. airfoils. The commenter asserts that the alternative method of compliance, in Comment 35. Request for Formal unusual pressure peak on the NACA accordance with the provisions of the Weather Forecasting System for 430xx airfoils at 9 percent chord caused AD. the ice ridge to form at that point, which Freezing Rain/Freezing Drizzle resulted in the accident involving a Comment 34. Request for Re-Evaluation One commenter supports a Aerospatiale Model ATR–72 series of Modified Deicing Boots on requirement to establish a formal system airplane. The commenter states that Aerospatiale Airplanes to provide forecasts of freezing rain/ ‘‘the accident was caused by the poorly In response to the proposal for freezing drizzle conditions, as proposed designed, unusual, and fortunately Aerospatiale airplanes, one commenter in paragraphs (b) and (c) of the original rarely used NACA 430xx airfoils used requests that the new, enlarged deicing proposed rule for Aerospatiale on this airplane.’’ boots that are required to be installed on airplanes. [This proposed requirement The FAA does not concur with the these airplanes must be re-evaluated was removed from the subsequent commenter’s request to limit the before total confidence in the modified supplemental notice of proposed applicability of the AD’s. First, the boots is warranted. The commenter rulemaking (NPRM) issued for these National Transportation Safety Board asserts that no test data exist to show airplanes in January 1996.] The (NTSB) has not yet made an official that the modified boots will preclude commenter states that such a finding of the probable cause of the the problem of large droplets outside of requirement should remain in effect accident referenced by the commenter. Appendix C. The area of exposure until forecasting tools are developed or Therefore, the FAA cannot assume that outside of Appendix C is essentially detection methods are established to airplanes having NACA 430xx airfoils open-ended, and only limited testing prevent dispatch or operations in are more susceptible to the addressed within a narrow range of droplet conditions outside those specified in unsafe condition than those airplanes diameters was conducted. Additionally, Appendix C. The commenter states that 20628 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations the efficacy of the deicing boots has not Aerospatiale Service Bulletins ATR42– proposal for Saab SF340A and SAAB been shown completely nor 57–0043, ATR72–57–1015, and ATR72– 340B series airplanes should be revised. documented; therefore, avoidance of 57–1016. The correct date for Revision The commenter suggests that the first freezing rain/freezing drizzle is 1 of those service bulletins (April 10, visual cue that appears in that paramount to safety of flight. 1995) was specified in the proposal for paragraph, which relates to unusually The FAA does not concur that such a the affected airplanes. extensive ice accretion, be removed requirement is necessary. The FAA from the proposal for those airplanes. Comment 37. Request To Revise agrees that such a system would Saab indicates that critical ice is Referenced Service Bulletins enhance the safety of flight operations. believed to be ice that builds up beyond However, there is no evidence that lack One commenter to the proposal for the protected surfaces on the wing. On of a system with such specialized Aerospatiale airplanes suggests that Saab Model SF340A and SAAB 340B features would lead to an unsafe service bulletin revisions should series airplanes, the pilot has a good condition. Forecasts of freezing rain/ contain a statement indicating that the view of the outer wing and the propeller freezing drizzle are a normal part of pre- revision has no effect on previously spinner. Unusually extensive ice in flight weather briefings. The FAA is modified airplanes. The commenter other areas may or may not be aware, however, of serious limitations provides no justification for this request. significant in determining whether for such a system to provide accurate The FAA acknowledges that many freezing rain or freezing drizzle is and timely forecasts of these conditions service bulletins do contain the present; however, the primary visual during flight in areas that are removed suggested phrase as an aid to operators cue for these airplanes is ice on the from weather reporting stations. Quite that may already have accomplished an spinner/outer wing. often, the only indication of the earlier service bulletin revision. In fact, In light of Saab’s remarks, the FAA existence of severe icing conditions is if a particular service bulletin is concurs that the visual cue addressed by from pilot reports or other direct specified in an AD and that service the commenter should be removed from observations. bulletin is revised, the FAA routinely the final rule for Saab Model SF340A Research is underway currently in determines whether the service bulletin and SAAB 340B series airplanes. (That industry and the academic community revision adequately addresses the visual cue remains in place for Saab to address shortcomings in the unsafe condition specified in the AD; if Model SAAB 2000 series airplanes.) forecasting of severe icing conditions. necessary, the FAA amends the AD to Paragraph (a)(1) of that final rule has The FAA may consider further cite the later service bulletin revision. been revised accordingly. rulemaking if advancements in weather A second commenter, Raytheon, forecasting provide for a reliable method Comment 38. Request To Revise Visual requests that the same visual cue be to predict the occurrence of freezing Cue: Ice on Side Window removed from the proposal for Beech rain/freezing drizzle conditions during One commenter suggests revised airplanes. Raytheon indicates that it flight or in areas removed from direct wording for the first visual cue specified does not believe that observation of this observations. in paragraph (a)(1) of the proposed rule visual cue indicates that the airplane for Aerospatiale airplanes, as follows: has exceeded the Appendix C icing Comment 36. Request To Approve ‘‘Freezing rain and freezing drizzle are envelope with respect to Beech Earlier Service Bulletin Revisions characterized by ice covering all or a airplanes. Therefore, the cue specified One commenter to the proposed rule substantial part of the unheated portion in the proposal would be irrelevant in for Aerospatiale airplanes requests that of either forward side window and/or an AFM for these airplanes. the proposed AD be revised to specify water splashing or streaming on the The FAA does not concur with that earlier revisions of service bulletins windshield or the side window when in Raytheon’s request. The commenter has are acceptable for compliance with the freezing or near freezing temperatures.’’ not submitted data to warrant removal requirements of the proposed rule. The The commenter states that the present of the visual cue. No change to the final commenter makes this request so as to wording implies that ice will always rule for Beech airplanes has been made. eliminate the need to apply for approval appear on the side window; however, Comment 40. Request To Remove Visual of alternative methods of compliance this is not the case. when accomplishing service bulletin The FAA does not concur with the Cue: Accumulation of Ice on Wing revisions other than those specified in commenter’s request. The commenter’s Surfaces the proposed rule. revised wording suggests that water JAL requests that the FAA remove the The FAA does not concur that earlier splashing or streaming on the generic information contained in the revisions of the referenced service windshield or the side window would visual cue concerning accumulation of bulletins should be cited in the final be a primary cue used to determine ice on the wing surfaces from the rule for Aerospatiale airplanes. when severe icing conditions are proposals for Jetstream airplanes. JAL However, the FAA would consider a present. The FAA does not concur that indicates that, for its airplanes, the request for approval of an alternative water splashing or streaming on the appropriate visual cue is the accretion method of compliance, in accordance windshield or the side window would of ice behind the protected area of the with the provisions of the AD, provided be a reliable cue in itself. However, this wing upper surface (not the wing lower that adequate justification is presented cue may be used as a supplemental cue surface). to support such a request. to the primary cue of ice accruing on the The FAA concurs partially. The FAA Additionally, the FAA has revised the side window. No change to the final does not agree that the visual cue revision levels specified for certain rule for Aerospatiale airplanes is should be removed from the final rules service bulletins because those revision necessary. for Jetstream airplanes. However, the levels were omitted inadvertently from FAA finds that this particular visual cue paragraph (b) of the proposed rule for Comment 39. Request To Remove Visual should be airplane-specific. Therefore, Aerospatiale airplanes. That final rule Cue: Unusually Extensive Ice Accretion the FAA has customized paragraph has been revised to indicate that certain One commenter, Saab, requests that if (a)(1) of the final rules for all affected modifications are to be accomplished in the FAA does not withdraw the airplanes to specify whether accordance with Revision 1 of proposed AD’s, paragraph (a)(1) of the accumulation of ice is observed on the Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20629 upper or lower surface of the wing, airplane had flown into icing conditions The commenter states that confusion depending upon whether the airplane is containing freezing rain or freezing over terms that have not been defined a high- or low-wing airplane. [Operators drizzle. clearly by the FAA has partially resulted should note that, for Aerospatiale in accidents and incidents. However, Comment 43. Request To Remove airplanes, the cue was customized in the commenter does not cite a specific Limitation to Immediately Exit Freezing paragraph (a)(2) of the final rule.] case in which this occurred. Rain/Freezing Drizzle The FAA has re-examined the last Comment 41. Request To Revise Visual Saab requests that the FAA remove a sentence of the first instruction listed in Cue: Accumulation of Ice on Propeller sentence from paragraph (a)(1) of the the procedures for exiting the freezing Spinner proposals that requires the pilot to rain/freezing drizzle environment in One commenter requests that the FAA immediately exit freezing rain or paragraph (a)(2) of the proposals. The revise the visual cue concerning freezing drizzle conditions by changing FAA has reconsidered use of the term accumulation of ice on the propeller altitude or course. This commenter ‘‘priority.’’ The FAA finds that more spinner, as specified in paragraph (a)(1) points out that the first limitation appropriate language that would be of the proposals. For consistency, the contained in the proposal for Saab understood clearly by the flight crew commenter requests that the word airplanes (‘‘Flight in meteorological and Air Traffic Controllers should be ‘‘back’’ be replaced with ‘‘aft.’’ conditions described as freezing rain or used in that instruction. Existing The FAA concurs with the freezing drizzle, as determined by the training for flight crews and Air Traffic commenter’s request. The final rules following visual cues, is Controllers addresses priority handling have been revised to change the visual prohibited . . .’’) already prohibits of airplanes. However, the FAA will cue to read as follows: ‘‘Accumulation flight in these conditions, and the pilot issue additional information for Air of ice on the propeller spinner farther should respond accordingly. Raytheon Traffic Controllers to further clarify aft than normally observed.’’ [Operators believes a conflict exists between using priority handling of airplanes in severe should note that, for Aerospatiale observations of ice accretion, as icing conditions. The FAA finds that the airplanes, this change appears in required by paragraph (a)(1) of the limitations specified in paragraph (a)(1) paragraph (a)(2) of the final rule.] proposed rules, and the of the final rules will result in the pilot Comment 42. Request To Remove Visual ‘‘determination’’ of certain taking appropriate steps to exit the icing Cue: Accumulation of Ice on Propeller meteorological conditions. conditions. Therefore, the FAA finds Spinner The FAA concurs partially. The FAA that the sentence questioned by the commenter may be removed from the One commenter, JAL, requests that does not agree that the sentence discussed by Saab should be removed final rules without affecting safety. the FAA remove the visual cue Accordingly, the FAA has removed that concerning accumulation of ice on the from paragraph (a)(1) of the final rules. As explained previously, the first sentence from the final rules. propeller spinner from the proposals for Additionally, in order to use Jetstream airplanes. JAL indicates that limitation in paragraph (a)(1) of the final rules has been revised to read: ‘‘During terminology in the procedures for on Jetstream Model ATP airplanes and exiting the severe icing environment Model 748 series airplanes, the flight, severe icing conditions that exceed those for which the airplane is that is consistent with the terminology propeller spinner is not visible from the used in the revised limitation and to certificated shall be determined by the flight deck. On Jetstream Models 3101, simplify certain language, the FAA has following visual cues. If one or more of 3201, and 4101 airplanes, the propeller revised the first instruction of the these visual cues exist, immediately spinner is visible from the flight deck, procedures. The revised instruction request priority handling from Air but flight test experience indicates that reads as follows: ‘‘Immediately request Traffic Control to facilitate a route or an there is no unique correlation between priority handling from Air Traffic altitude change to exit the icing the extent of spinner ice accretion and Control to facilitate a route or an conditions.’’ (This wording is slightly the existence of freezing rain/freezing altitude change to exit the icing different in the final rule for drizzle conditions. conditions in order to avoid extended Aerospatiale airplanes because only one The FAA concurs partially. The FAA exposure to flight conditions more visual cue is provided.) The FAA finds concurs that since the propeller spinner severe than those for which the airplane that this revision to the final rules is not visible from the flight deck on has been certificated.’’ Jetstream Model ATP airplanes and addresses the commenters’ concerns Model 748 series airplanes, the visual with regard to the proposed limitations. Comment 44. Request To Change the cue can be removed from paragraph One commenter poses various Note Concerning the Autopilot (a)(1) of the final rules for these models. questions concerning the last sentence One commenter, ATR, requests that The FAA does not concur that this of the first instruction listed in the the FAA revise the second note in visual cue should be removed from the procedures for exiting the freezing rain/ paragraph (a)(1) of the proposal for AD’s for Jetstream Models 3101, 3201, freezing drizzle environment in Aerospatiale airplanes. As proposed, and 4101 airplanes. The commenter did paragraph (a)(2) of the proposals. (That ATR believes the last sentence of the not submit data to substantiate its sentence reads as follows: ‘‘Asking for note is too restrictive. ATR proposes the assertion that flight test experience priority to leave the area is fully following: ‘‘The autopilot may mask indicates there is no unique correlation justified under these conditions.’’) tactile cues . . . characteristics. between the extent of spinner ice —What does the term ‘‘priority’’ provide Therefore, when any ice is visible on the accretion and the existence of freezing a pilot when asking for priority to airplane, the pilot should consider rain/freezing drizzle conditions. leave icing conditions? flying manually for short periods in Therefore, it is uncertain if the —What if there were three simultaneous order to check the absence of any commenter’s flight test airplane was requests for ‘‘priority?’’ anomaly.’’ equipped with instrumentation that —What Air Traffic Control procedures Two commenters request that the would allow the detection and/or exist for treating an immediate request FAA remove a similar note concerning measurement of droplets outside the for ‘‘priority?’’ the autopilot from the proposals for Appendix C conditions, and if the —Where is the term ‘‘priority’’ defined? airplanes other than Aerospatiale 20630 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations models. One of the commenters, JAL, autopilot. The commenter believes that Additionally, the FAA acknowledges states that the note contains advisory prohibiting use of the autopilot when that the autopilot limitation, as information and should not appear in any ice is observed aft of the protected proposed, could be misinterpreted to the Limitations Section of an AFM. surfaces of the wing is a rigid mean that the autopilot must be The FAA concurs with ATR’s requirement that takes away a valuable disengaged when unusual lateral trim or comment that the last sentence of the aid to the flight crew when it may be autopilot trim warnings are note is too restrictive; that sentence has needed most. Raytheon states that there encountered, regardless of whether the been removed from the final rules for all is no evidence that the autopilots on airplane is in icing conditions. airplanes. However, the FAA does not Beech aircraft would mask an icing However, the FAA only intended that agree with JAL’s contention that the related control problem. The commenter the autopilot limitation apply while the explanation of the relationship between points out that tests on those aircraft airplane is in icing conditions. the autopilot and the masking of tactile disclosed no icing related control cues is inappropriate for insertion in the In light of this, the FAA has problem to mask. The commenter adds determined that the autopilot limitation Limitations Section of an AFM. On the that trying to anticipate every situation contrary, the FAA finds that inclusion contained in paragraph (a)(1) of the final with an absolute prohibition may lead rules must be revised. The FAA has of such information will increase the to other unsafe conditions. level of understanding and, changed that limitation to read as The FAA does not concur that the follows: ‘‘Since the autopilot may mask consequently, will increase the level of autopilot limitation should be modified safety. tactile cues that indicate adverse or removed from the AD’s for any of the changes in handling characteristics, use In light of this, the FAA finds that the affected airplanes. The limited amount note may be removed from paragraph of the autopilot is prohibited when any of time the pilot is using manual of the visual cues specified above exist, (a)(1) of the final rules for all airplanes; controls instead of the autopilot would however, the information contained in or when unusual lateral trim not result in an unsafe condition. In the first sentence of that note has been requirements or autopilot trim warnings normal operational environments and combined with the autopilot limitation are encountered while the airplane is in conditions, the autopilot is a valuable in paragraph (a)(1) of the final rules. The icing conditions.’’ (This wording is aid that reduces the workload of the final rules have been revised slightly different in the final rule for flight crew. However, under abnormal accordingly. Aerospatiale airplanes because only one conditions (ice aft of the protected visual cue is provided.) This revision Comment 45. Requests To Remove surfaces, unusual lateral trim, or more accurately reflects the FAA’s Autopilot Limitation autopilot trim warnings), the autopilot intent and is, therefore, a logical will mask the build-up of large or Saab requests that the FAA revise the outgrowth of the proposed rules. second limitation that appears in unusual control forces in one or more paragraph (a)(1) of the proposal for Saab axes. Therefore, for the short period of Comment 46. Request To Insert airplanes. As proposed, this limitation time necessary to exit severe icing Procedures in Limitations or Abnormal indicates that use of the autopilot is conditions, the safest course of action Procedures Section of AFM prohibited when any ice is observed would be manual pilot control. Even if One commenter suggests that forming aft of the protected surfaces of an autopilot does not automatically operations in icing conditions that the wing, or when unusual lateral trim disconnect, the pilot may choose to exceed the capability of the airplane requirements or autopilot trim warnings disconnect the autopilot and could then should be described in the Limitations are encountered. Saab asks that this be faced unexpectedly with unusual or Abnormal Procedures Section of the autopilot limitation be modified to take control forces. These reasons also still AFM, rather than in the Normal into consideration the autopilot system hold true with airplanes that have been Procedures Section, as specified in design on these airplanes, which flight tested with the ice shapes. paragraph (a)(2) of the proposals. provides out-of-trim warnings; Since the issuance of the proposed therefore, the autopilot can be used up rules, the FAA has re-examined the The FAA concurs partially. The FAA to the point where a warning is autopilot limitation specified in agrees that the Abnormal Procedures triggered. Saab adds that the triggering paragraph (a)(1) of the proposals. The Section may be an appropriate location point is early enough for the warning to FAA recognizes that clarification is for the procedures for exiting severe be taken, should the reason be ice build- necessary with regard to its intent icing conditions. However, the FAA up beyond the protected surfaces. concerning that limitation. That does not agree that such operational Additionally, there is no automatic limitation, as specified in the proposals, procedures should appear in the disconnect if the autopilot servo reaches states that use of the autopilot is Limitations Section of the AFM since its limit torque, which would prevent prohibited when any ice is observed such procedures are not limitations. any surprise to the pilot during an out- forming aft of the protected surfaces of Additionally, upon further review, the of-trim condition. the wing, or when unusual lateral trim FAA finds that AFM’s may have neither Another commenter, EMBRAER, requirements or autopilot trim warnings an Abnormal Procedures nor a Normal requests that use of the autopilot not be are encountered. However, the FAA’s Procedures Section. Consequently, to limited for EMBRAER Model EMB–120 intent concerning that limitation is that provide operators with flexibility as to series airplanes. The commenter states the autopilot be disconnected when the where the procedures specified in that flight tests have demonstrated the flight crew observes any of the visual paragraph (a)(2) should be incorporated safe ability of these airplanes to depart cues identified in paragraph (a)(1) of the in the AFM, that paragraph has been a freezing rain/freezing drizzle AD’s. The need to disconnect the revised to require that the ‘‘Procedures’’ condition with the autopilot on. autopilot arises when an amount of ice Section of the AFM be revised. This Raytheon also objects to the autopilot accumulates that indicates the limits of means that the procedures may be limitation. Raytheon suggests that a the ice protection equipment have been inserted in the ‘‘Normal Procedures,’’ better approach is to inform the pilots exceeded, regardless of the means by ‘‘Abnormal Procedures,’’ or other of the nature of ice accretion, and then which the flight crew becomes aware of ‘‘Procedures’’ Section of the AFM, as let the pilots decide when to use the the accumulation of ice. appropriate. Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20631

Comment 47. Request To Remove revisions which state, ‘‘Sustained flight extended does not always result in a Duplicate Visual Cues in icing conditions is prohibited with reduced angle-of-attack. For instance, Two commenters indicate that certain flaps extended.’’ However, the during extension of the flaps while the visual cues specified in paragraph (a)(2) commenter does not provide a airplane is slowing, the angle-of-attack of the proposals are duplicated in the suggestion for rewording this will increase. The FAA concurs with the suggestion ‘‘Warning’’ that is also contained in that instruction. The FAA concurs that the procedures to include the words ‘‘the possibility of paragraph. One commenter states that related to extension of the flaps can be ice forming on the upper surface further the duplication of text reduces the reworded somewhat. For clarification aft * * *’’ The FAA acknowledges that impact of the message. Another purposes, the FAA has replaced the under certain conditions the droplets commenter questions whether the visual word ‘‘avoid’’ with ‘‘do not’’ in that will not impinge further aft with a cues and procedures for exiting the procedure in paragraph (a)(2) of the reduced angle-of-attack. The final rules icing environment are intended to be final rules. This revision eliminates the have been revised to add the words part of the AFM material. The FAA conflict discussed by the second suggested by the commenter to the sixth infers from these remarks that the commenter. However, the FAA does not instruction specified in the procedures commenters request that duplicate text agree that revising the remainder of the for exiting the severe icing environment be removed. instruction, as suggested by Saab, contained in paragraph (a)(2) of the Transport Canada Aviation requests provides any additional clarification. AD’s. That revised instruction reads as that the ‘‘Warning’’ be removed because The FAA agrees that inserting the follows: ‘‘Do not extend flaps * ** indications of the possible hazard are revised wording in the Limitations with the possibility of ice forming on progressive and may not necessarily Section of the AFM, rather than in the the upper surface * * *’’ require immediate action from the pilot. Normal Procedures Section, would be The commenter suggests that renaming acceptable; however, this would expand Comment 49. Requests To Revise this as a ‘‘Caution’’ may be more the scope of the originally proposed ‘‘Caution’’ Paragraph appropriate. rules and would necessitate reopening One commenter asks that the heading, The FAA concurs partially. The FAA the comment period to provide ‘‘Caution,’’ which appears in paragraph agrees that duplicate text should be additional opportunity for public (a)(2) of the proposals, be renamed removed from the ‘‘Warning’’ section comment. In light of the time required ‘‘Warning’’ because this section is that appeared in the proposals. The to complete the rulemaking process in intended to prevent loss of life or injury. FAA finds that only one unique advance of the upcoming icing season Transport Canada Aviation requests that instruction appears in the ‘‘Warning’’ in and in consideration of the safety issues the ‘‘Caution’’ section be changed to a paragraph (a)(2) of the proposals: ‘‘If the addressed by these final rules, the FAA note. The commenter provides no flaps are extended, do not retract them finds that the AD’s should be issued justification. until the airframe is clear of ice.’’ without additional delay. However, the The FAA concurs partially. The FAA Therefore, the FAA has added that FAA would consider a request for does not concur that the ‘‘Caution’’ instruction to the procedures for exiting approval of an alternative method of should be changed to a note because the severe icing environment in compliance, in accordance with the this section is intended to prevent loss paragraph (a)(2) of the AD’s. The provisions of this AD, to include this of life or injury. In light of this, the FAA remainder of the ‘‘Warning’’ section that information in the Limitations Section concurs with the commenter’s request to appeared in the proposals has been of an operator’s AFM. rename the ‘‘Caution’’ section removed from the final rules. Transport Canada Aviation requests ‘‘Warning.’’ The FAA finds that that this instruction be revised to read ‘‘Warning’’ is a stronger term and would Comment 48. Request for Revision to as follows: ‘‘Do not extend flaps during be a more appropriate heading for the Instruction for Flaps Extension operation in icing conditions, except for paragraph in question. Additionally, the Saab requests that the FAA revise an approach and landing. Operation with FAA finds that the ‘‘Warning’’ provides instruction contained in the procedures flaps extended will result in a reduced advisory information that should for exiting the freezing rain/freezing wing angle-of-attack with the possibility precede the first limitation in paragraph drizzle environment in paragraph (a)(2) of ice forming on the upper surface (a)(1) of the AD’s. Accordingly, the FAA of the proposals. That instruction further aft on the wing than normal, has revised the heading ‘‘Caution’’ to indicates to ‘‘Avoid extending flaps possibly aft of the protected area.’’ ‘‘Warning’’ in the final rules. In during extended operation in icing The FAA concurs partially. The FAA addition, the ‘‘Warning’’ has been conditions * * *.’’ Saab suggests the does not concur with the commenter’s placed at the beginning of paragraph following: ‘‘Do not extend flaps when suggested rewording to limit use of the (a)(1) of the final rules. The FAA has holding in conditions where ice is flaps in all operation in icing conditions determined that including this accreting on the airframe.’’ Further, the except approach and landing. The information in the Limitations Section commenter asks that this instruction be wording proposed in the AD’s would of the AFM will not impose an inserted as a ‘‘caution’’ in the affect use of the flaps only during additional burden on any operator, Limitations Section of the AFM, rather extended operation in icing conditions. since it is informational only and does than into the Normal Procedures The FAA finds that an amount of ice not necessitate providing an additional Section, as specified in the proposed sufficient to cause control problems is opportunity for public comment. rule. Saab believes that it is imperative more likely to accumulate during Additionally, the commenter notes that the flaps not be extended in such prolonged operations in icing that an undefined term, ‘‘extreme,’’ is cases. Inserting the instruction into the conditions. Further, the FAA does not used in a sentence in the ‘‘Caution’’ Limitations Section, rather than the concur that the words ‘‘operation of the paragraph of the proposals, as follows: Normal Procedures Section, would add flaps can result in a reduced angle-of- ‘‘Flight in freezing rain, freezing drizzle, strength to the requirement. attack * * *’’ should be changed to or mixed icing conditions (supercooled Another commenter states that this ‘‘operation of the flaps will result in a liquid water and ice crystals) may result same instruction appears to be in reduced angle-of-attack * * *’’ in this in extreme ice build-up on protected conflict with previously approved AFM instruction. Operation with flaps surfaces * * *’’ The FAA infers from 20632 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations this remark that the commenter asks indicators contained in that section are remark the commenter requests that the that the word ‘‘extreme’’ be removed specified in the final rule in a section ambient temperature that appears in the from the ‘‘Caution’’ paragraph. titled: ‘‘The following weather weather conditions specified in The FAA concurs. The FAA finds that conditions may be conducive to severe paragraph (a)(2) of the proposals be removing the word ‘‘extreme’’ would in-flight icing.’’ (This change is expressed as SAT for those airplanes. not change the intent of the sentence explained further in Comment 51 The FAA does not concur. The FAA and may eliminate confusion. The word below.) does not intend to specify which ‘‘extreme’’ has been removed from this Comment 51. Request To Remove Visual specific indicator in the cockpit a pilot section of the final rule. In addition, for should use to determine the ambient air clarification purposes, the FAA has Cues: Identification of Possible Freezing Rain/Freezing Drizzle temperature. The FAA intends that the revised the first sentence of the pilot use whatever means necessary to One commenter states that the word proposed ‘‘Caution’’ from ‘‘Severe icing determine ambient air temperature. comprises environmental conditions ‘‘may’’ in the following title, which ** *’’ to ‘‘Severe icing may result from appears in paragraph (a)(2) of the However, since airplanes may have environmental conditions * * *’’ proposals, is confusing: ‘‘The following indicators other than OAT, the FAA has may be used to identify possible replaced the words ‘‘outside air Comment 50. Request To Remove Visual freezing rain/freezing drizzle temperature’’ with ‘‘ambient air Cues: Identification of Freezing Rain/ conditions.’’ The commenter indicates temperature’’ in the weather conditions, Freezing Drizzle that AFM procedures should provide a and in the procedures for exiting the One commenter indicates that the clear sequence of steps that must be severe icing environment, specified in cues provided in paragraph (a)(2) of the followed and that such procedures paragraph (a)(2) of these final rules to proposals for identifying freezing rain/ should be explicit; general advice, eliminate confusion concerning the freezing drizzle conditions are regardless of how prudent, should be need for a specific type of indicator. duplicated in material that appears in published elsewhere. The FAA infers In addition, the FAA has re-examined paragraph (a)(1) of the proposals. The from this remark that the commenter the ambient temperature of +5 degrees FAA infers from this remark that the asks that the cues that appear under this Celsius that is specified in paragraph commenter requests that duplicative section be deleted. (a)(2) of the proposals. The FAA has wording be removed from paragraph The FAA does not concur that this determined that this temperature is too (a)(2) of the proposed rules. section should be removed. The cues high to be used as a reliable indication The FAA concurs. The FAA finds that provided for identification of possible of whether severe icing conditions may the section entitled ‘‘The following shall severe icing conditions will alert the exist during flight. The FAA finds that be used to identify freezing rain/freezing pilot to the possibility that unusual ice 0 degrees Celsius is a more appropriate drizzle icing conditions’’ is duplicated accretion may develop. The FAA finds indication. The FAA has revised in material that appears in paragraph that the level of detail provided in the paragraph (a)(2) of the final rules for all (a)(1), and does not enhance the final rules will increase the level of pilot airplanes accordingly. effectiveness of the AD’s. Therefore, that awareness and, consequently, will section has been removed from increase the level of safety over that Comment 53. Request To Replace paragraph (a)(2) of the final rules for all which exists currently. Therefore, the Reference to Droplets that Splash or airplanes other than Aerospatiale Model FAA has determined that it is Splatter ATR–42 and ATR–72 series airplanes. appropriate to incorporate this section JAL requests that the weather Paragraph (a)(1) of the proposals for in the AFM. condition that pertains to ‘‘droplets that Aerospatiale airplanes specified However, the FAA finds that splash or splatter’’ be removed from secondary indications for identifying clarification is necessary with regard to paragraph (a)(2) of the proposals. JAL possible freezing rain/freezing drizzle the title of this section. The FAA finds believes that this weather condition conditions. The FAA recognizes that the that operators may misinterpret that places too much emphasis on subjective flight crew could have interpreted that title, as proposed, to mean that this judgment. JAL states that normal rain paragraph to mean that if the secondary section contains visual cues that should conditions will contain droplets that indicators were observed, the airplane be used to identify possible severe icing splash or splatter upon impact with the must be flown clear of the severe icing conditions prior to takeoff, dispatch, or windshield. JAL indicates that conditions. However, the FAA’s intent release while the airplane is on the information included in its existing is that the flight crew must immediately ground. Additionally, the FAA finds AFM revisions, specified as follows, request priority handling to exit the that confusion could result in adequately addresses the issue: icing conditions only when the visual differentiating between the weather ‘‘Prolonged operation in altitude bands cue (ice on the side window) specified conditions specified in this section and where temperatures are near freezing in paragraph (a)(1) of the AD is the visual cues provided in paragraph and heavy moisture is visible on the observed. (a)(1) of the AD’s. For clarification windscreen should be avoided.’’ Accordingly, the FAA has deleted the purposes, the FAA has revised the title secondary indications of possible severe of this section to read as follows: ‘‘The The FAA does not concur that this icing conditions from paragraph (a)(1) of following weather conditions may be weather condition should be removed the final rule for Aerospatiale airplanes. conducive to severe in-flight icing.’’ from the AD’s. This weather condition In addition, the FAA has removed the must be used in conjunction with the visual cue (ice on the side window) Comment 52. Request To Revise Air temperature specified as a means of from paragraph (a)(2) of the final rule. Temperature References identifying severe in-flight icing The FAA has retitled the section Transport Canada Aviation states that conditions. The weather condition also containing the secondary indications of ambient temperature is indicated as will alert the pilot to the possibility that possible severe icing as follows: ‘‘The static air temperature (SAT), rather than unusual ice accretion may develop. The following may be used as secondary outside air temperature (OAT), for de FAA finds that the AFM information indications of severe icing conditions.’’ Havilland Model DHC–8 series submitted by JAL does not provide an Further, the last two secondary airplanes. The FAA infers from this equivalent alert to the pilot. Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20633

Comment 54. Request To Revise finds that remaining in such conditions increase the airspeed and roll the wings Procedures for Exiting Freezing Rain/ for a prolonged period may result in level, if in a turn. However, as explained Freezing Drizzle accumulating an amount of ice previously, this portion of the procedure JAL requests that the procedures for sufficient to cause control problems. has been removed from the final rules. exiting freezing rain/freezing drizzle The phrase ‘‘to avoid extended The FAA does not agree that either specified in paragraph (a)(2) of the exposure’’ is only intended to explain to ‘‘lateral’’ or ‘‘aileron’’ should be used to proposals be restricted to essential the flight crew why severe icing specify the type of uncommanded instructions that the flight crew must conditions should be exited control movement. The FAA finds that follow. JAL contends that the immediately. use of the term ‘‘lateral’’ may not be Raytheon questions the necessity to procedures contained in the proposals understood by the flight crew. The FAA tell a commercial pilot not to make any are not written in the appropriate format finds that including the word ‘‘aileron’’ abrupt or excessive maneuvers if the for AFM procedures, but are more may clarify which control surface is of aircraft is in the position of having concern; however, the FAA has representative of advisory material. JAL control difficulties. This instruction determined that use of a more general also states that the current FAA- appears under the heading ‘‘Procedures term, ‘‘roll’’ will correctly specify the approved AFM procedures for exiting for exiting the freezing rain/freezing type of uncommanded control freezing rain/freezing drizzle already drizzle environment,’’ which appears in movement that is of concern. The FAA provide this essential information and paragraph (a)(2) of the proposals. The has revised the fifth instruction in the conform to the existing style of the commenter contends that this is a procedures for exiting the severe icing AFM’s. Transport Canada Aviation training issue and is not appropriate for environment in paragraph (a)(2) of the requests that the first instruction in AFM procedures. The FAA infers from final rules accordingly. The revised these procedures be revised to state the commenter’s remark that the instruction reads as follows: ‘‘If an only: ‘‘Exit the freezing rain or freezing commenter requests that these unusual roll response or uncommanded drizzle conditions immediately.’’ The instructions be eliminated from the roll control movement is observed, commenter also requests clarification of proposed rules. reduce the angle-of-attack.’’ the terms ‘‘extended exposure,’’ as used The FAA does not concur. The FAA In addition, the procedures for exiting in that instruction. has determined that such instructions the freezing rain/freezing drizzle The FAA concurs partially. The FAA provide beneficial guidance to the flight environment contained in the proposals has reviewed the procedures for exiting crew, which will enhance the safety of did not specify to use ‘‘a sudden burst the severe icing environment and finds the aircraft. of power’’ when reducing the angle-of- that two of the instructions contained in Saab requests that the FAA revise one attack. Rather, the proposed procedure those procedures do not require the of the instructions specified in the indicates to apply additional power, if level of detail provided in the proposed procedures for exiting freezing rain/ needed, to provide the desired flight rules. The FAA finds that the freezing drizzle specified in the path. However, as discussed previously, information concerning masking of proposals. The instruction states that if the FAA has removed this reference control system forces is already an unusual roll response or from the final rules. In addition, as provided in the Limitations Section of uncommanded control movement is explained previously, the FAA has the AFM. Therefore, the FAA has observed, the angle-of-attack should be revised the final rules to add the word revised the third instruction of those reduced by increasing the airspeed or ‘‘roll’’ to describe the type of procedures to read as follows: ‘‘Do not rolling the wings level (if in a turn), and uncommanded control movement. This engage the autopilot.’’ Additionally, the applying additional power, if needed. revised wording addresses Saab’s FAA has determined that the flight crew Saab suggests that this instruction be concern regarding increasing power for need not be provided with instructions revised to include the word ‘‘aileron’’ in a pitch anomaly. for reducing the angle-of-attack because the reference to uncommanded control Saab also notes that this instruction instructions such as this are considered movement. Saab states further that in recommends a reduction in the angle-of- to be basic airmanship. Accordingly, the the case of wing ice beyond the attack and application of power, if FAA has revised the fifth instruction in protected surfaces, the application of needed. However, the next instruction the procedures for exiting the severe power may be appropriate to increase of the procedures indicates that icing environment to specify only airspeed/improve airflow. However, if reducing the angle-of-attack may cause information that is essential for the ice has accrued on the wings beyond the ice to build up beyond the protected flight crew. The revised instruction protected surfaces, there is a possibility areas of the wing. Saab concludes that reads as follows: ‘‘If an unusual roll that there also is ice on the horizontal there is a conflict in that the proposed response . . . reduce the angle-of-attack.’’ stabilizers. In this case, a sudden burst AD would require that the angle-of- The FAA finds that, for the remainder of power may be detrimental. An attack not be reduced or ice will collect of the procedures for exiting, the uncommanded pitch control movement beyond the protected surfaces; however, additional level of details provided in is indicative of tail ice, which normally the angle-of-attack must be reduced if the final rules will increase the level of calls for a different action, both there is an unusual roll response or understanding and, consequently, will concerning power as well as the uncommanded control movement. increase the level of safety over that handling of flaps, if extended. Another The FAA does not concur with the which exists currently. The FAA finds commenter, Transport Canada Aviation, commenter’s contention that there is a that these procedures are appropriate for requests that the same instruction be conflict in the AD’s. Reducing the angle- insertion in the AFM’s. revised to include the word ‘‘lateral’’ in of-attack by increasing airspeed or Regarding the terms ‘‘extended reference to ‘‘uncommanded control rolling the wings level (if in a turn), and exposure,’’ the intent of that instruction movement,’’ and to change the phrase applying additional power, if needed, is is to advise the flight crew that exiting ‘‘or rolling wings level’’ to ‘‘and rolling a procedure used to exit severe icing the severe icing conditions will wings level.’’ conditions following an unusual roll minimize the exposure to flight The FAA concurs partially. The FAA response or uncommanded roll control conditions outside those for which the agrees that the correct procedures for movement; whereas the instruction that airplane has been certificated. The FAA reducing the angle-of-attack is to involves not extending the flaps during 20634 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations extended operation in icing conditions manufacturer should be considered and rulemaking actions typically only is intended to prevent ice build-up included in the final rules, if includes such direct costs. In the case of beyond the unprotected surfaces. appropriate. All manufacturers have these AD’s, for example, the Raytheon asks for removal of the been provided with an opportunity to requirements are to revise the AFM to instruction to reduce the angle-of-attack submit such procedures in response to include certain information. How and apply additional power, if needed, the proposed rules. Some manufacturers operators actually ‘‘implement’’ that in response to an unusual roll response requested changes to the final rules. The information thereafter (once it is placed or uncommanded control movement. FAA has revised the final rules for those in the AFM) may vary greatly among The commenter states that these are requests that were substantiated them. normal instructions with respect to adequately. Following issuance of the Further, because AD’s require specific wing stall and are inappropriate for final rules, the FAA would consider a actions to address specific unsafe inclusion in an AFM. request to include additional changes to conditions, they appear to impose costs The FAA concurs partially. There the AFM revisions, in accordance with that would not otherwise be borne by may not be a stall warning associated the provisions of these AD’s, provided operators. However, because of the with uncommanded control movements that adequate justification is presented general obligation of operators to in the case of encounters with severe to support such a request. maintain and operate aircraft in an icing conditions. Since this is not a airworthy condition, this appearance is ‘‘normal’’ stall, the flight crew may not Comment 56. Revision of Procedures for deceptive. Attributing those costs solely recognize that normal stall recovery Exiting the Severe Icing Environment to the issuance of this AD is unrealistic procedures should be used. However, as The FAA has re-examined the section because, in the interest of maintaining stated previously, the instruction titled ‘‘Procedures for exiting the severe and operating safe aircraft, prudent referenced by the commenter has been icing environment’’ in paragraph (a)(2) operators would accomplish the deleted, in part, from the final rules. of the proposals. As proposed, that required actions even if they were not Raytheon also states that it is not section states that if the visual cues used required to do so by the AD. In any case, appropriate to require contact with Air for identifying ‘‘possible’’ freezing rain the FAA has determined that direct and Traffic Control as part of an AFM or freezing drizzle conditions are incidental costs are still outweighed by procedure since this is already observed, the flight crew should follow the safety benefits of the AD. addressed in the Aeronautical the procedures specified for exiting The FAA points out that it is not Information Manual and in section those conditions. The FAA did not required to do a full cost-benefit 91.183 of the Federal Aviation intend that the flight crew use the analysis for each AD. AD’s were Regulations (14 CFR 91.183). The FAA procedures for exiting the severe icing explicitly exempted from the Office of infers from this statement that the environment when the weather Management and Budget (OMB) commenter requests that the instruction conditions specified in paragraph (a)(2) coordination process described in to contact Air Traffic Control should be of these AD’s are observed. The FAA’s Section 6 of that Executive Order. As a removed from the procedures for exiting intent is that the flight crew use those matter of law, in order to be airworthy, severe icing conditions. procedures only when the visual cues an aircraft must conform to its type The FAA does not concur. The FAA identified in the Limitations Section of design and be in a condition for safe is aware that this instruction is the AFM are observed. operation. The type design is approved contained in the references provided by In order to eliminate any confusion, only after the FAA makes a the commenter. However, the FAA finds the FAA has revised the last sentence of determination that it complies with all that the importance of timely the first paragraph in the procedures for applicable airworthiness requirements. dissemination of this instruction exiting the severe icing environment. In adopting and maintaining those warrants its inclusion in the final rules. The FAA has removed the word requirements, the FAA has already Inclusion of instructions of this type is ‘‘possible’’ from that sentence, and has made the determination that they not without precedent; for example, added clarification that the visual cues establish a level of safety that is cost- similar information also is specified in are specified in the Limitations Section beneficial. When the FAA later makes a certain AFM’s where the forward look of the AFM. The revised sentence reads finding of an unsafe condition in an windshear system is addressed. as follows: ‘‘If the visual cues specified aircraft and issues an AD, it means that in the Limitations Section of the AFM the original cost beneficial level of Comment 55. Request To Revise for identifying severe icing conditions safety is no longer being achieved and Procedures for Exiting the Severe Icing are observed, accomplish the that the required actions are necessary Environment: Include Airplane- Specific following.’’ (Operators should note that, to restore that level of safety. Because Instructions for Aerospatiale airplanes, the final rule this level of safety has already been One commenter suggests that any specifies only one visual cue, which determined to be cost beneficial, and action that might be necessary to involves ice on the side window.) because the AD does not add an optimize aircraft performance and additional regulatory requirement that control in conditions of exceptional Comment 57. Request to Revise Cost increases the level of safety beyond icing, and exit from those conditions, Estimate what has been established by the type should be determined separately with Transport Canada requests that the design, a full cost-benefit analysis for each manufacturer; such procedures FAA provide an operational cost each AD would be redundant and should be contained in the AFM for estimate in the proposed AD’s. unnecessary. each airplane model. The FAA infers The FAA acknowledges the concern from this remark that the commenter of the commenter. The FAA recognizes Comment 58. Requests to Delay requests that the FAA revise the that, in accomplishing the requirements Issuance of the Final Rules procedures for exiting the severe icing of any AD, operators may incur other Three commenters request that the environment in each final rule to costs in addition to the ‘‘direct’’ costs FAA extend the comment period for the include airplane-specific instructions. that are reflected in the cost analysis proposed rules by 90 days. Each of the The FAA agrees that procedures presented in the AD preamble. commenters request the extension in obtained from each individual However, the cost analysis in AD order to complete a comprehensive Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20635 analysis of this issue. The commenters continued operational safety airplanes that have been modified, altered, or state their involvement in focusing on necessitates the imposition of these repaired so that the performance of the ‘‘. . . ther recent rulemaking activity, costs. requirements of this AD is affected, the including the Commuter Rule, flight owner/operator must request approval for an Regulatory Impact alternative method of compliance in crewmember training requirements, and accordance with paragraph (d) of this AD. proposed rules covering flight crew The regulations adopted herein will The request should include an assessment of flight, duty and test requirements . . .’’ not have substantial direct effects on the the effect of the modification, alteration, or as a reason that did not allow complete States, on the relationship between the repair on the unsafe condition addressed by analysis of the proposed AD’s. national government and the States, or this AD; and, if the unsafe condition has not One commenter requests that on the distribution of power and been eliminated, the request should include implementation of the AD’s be deferred responsibilities among the various specific proposed actions to address it. until further discussion with industry levels of government. Therefore, in Compliance: Required as indicated, unless has been undertaken. accordance with Executive Order 12612, accomplished previously. The FAA has reviewed these requests it is determined that this final rule does To minimize the potential hazards and, in consideration of the importance associated with operating the airplane in not have sufficient federalism severe icing conditions by providing more and need for dissemination of this implications to warrant the preparation clearly defined procedures and limitations important information to the aviation of a Federalism Assessment. associated with such conditions, accomplish community, does not concur that the For the reasons discussed above, I the following: comment period should be extended or certify that this action (1) is not a (a) Within 30 days after the effective date issuance of the final rules be deferred ‘‘significant regulatory action’’ under of this AD, accomplish the requirements of until a later date. Issuing the final rules Executive Order 12866; (2) is not a paragraphs (a)(1) and (a)(2) of this AD. will ensure that the information is ‘‘significant rule’’ under DOT Note 2: Operators must initiate action to available, understood, and implemented Regulatory Policies and Procedures (44 notify and ensure that flight crewmembers by the aviation community before the FR 11034, February 26, 1979); and (3) are apprised of this change. next icing season. For these reasons, the will not have a significant economic (1) Revise the FAA-approved Airplane FAA has determined that it is Flight Manual (AFM) by incorporating the impact, positive or negative, on a following into the Limitations Section of the imperative that the information and substantial number of small entities AFM. This may be accomplished by inserting actions contained in these final rules be under the criteria of the Regulatory a copy of this AD in the AFM. incorporated into the operators’ AFM’s Flexibility Act. A copy of the final immediately. evaluation prepared for this action is ‘‘WARNING Severe icing may result from Conclusion contained in the Rules Docket. A copy of it may be obtained by contacting the environmental conditions outside of those for which the airplane is certificated. Flight in After careful review of the available Rules Docket at the location provided data, including the comments noted freezing rain, freezing drizzle, or mixed icing under the caption ADDRESSES. conditions (supercooled liquid water and ice above, the FAA has determined that air List of Subjects in 14 CFR Part 39 crystals) may result in ice build-up on safety and the public interest require the protected surfaces exceeding the capability of adoption of the rule with the changes Air transportation, Aircraft, Aviation the ice protection system, or may result in ice previously described. The FAA has safety, Incorporation by reference, forming aft of the protected surfaces. This ice determined that these changes will Safety. may not be shed using the ice protection neither increase the economic burden systems, and may seriously degrade the Adoption of the Amendment on any operator nor increase the scope performance and controllability of the Accordingly, pursuant to the airplane. of the AD. • authority delegated to me by the During flight, severe icing conditions Cost Impact Administrator, the Federal Aviation that exceed those for which the airplane is certificated shall be determined by the The FAA estimates that 169 airplanes Administration amends part 39 of the following visual cues. If one or more of these in the U.S. registry will be affected by Federal Aviation Regulations (14 CFR visual cues exists, immediately request this AD, that it will take approximately part 39) as follows: priority handling from Air Traffic Control to 1 workhour per airplane to accomplish facilitate a route or an altitude change to exit the required action, and that the average PART 39ÐAIRWORTHINESS the icing conditions. labor rate is approximately $60 an hour. DIRECTIVES —Unusually extensive ice accreted on the Since an owner/operator who holds at 1. The authority citation for part 39 airframe in areas not normally observed to collect ice. least a private pilot’s certificate as continues to read as follows: authorized by sections 43.7 and 43.11 of —Accumulation of ice on the upper surface the Federal Aviation Regulations (14 Authority: 49 USC 106(g), 40113, 44701. of the wing aft of the protected area. —Accumulation of ice on the propeller CFR 43.7 and 43.11) can accomplish the § 39.13 [Amended] spinner farther aft than normally observed. required action, the only cost impact 2. Section 39.13 is amended by • Since the autopilot may mask tactile upon the public is the time it would adding a new airworthiness directive cues that indicate adverse changes in take the affected airplane owner/ (AD) to read as follows: handling characteristics, use of the autopilot operators to incorporate the AFM is prohibited when any of the visual cues 96–09–11 De Havilland: Amendment 39– revisions. specified above exist, or when unusual 9587; Docket No. 96–CE–01–AD. In addition, the FAA recognizes that lateral trim requirements or autopilot trim this AD may impose operational costs. Applicability: Models DHC–6–1, DHC–6– warnings are encountered while the airplane However, those costs are incalculable 100, DHC–6–200, and DHC–6–300 airplanes is in icing conditions. (all serial numbers), certificated in any • All icing detection lights must be because the frequency of occurrence of category. the specified conditions and the operative prior to flight into icing conditions Note 1: This AD applies to each airplane at night. [NOTE: This supersedes any relief associated additional flight time cannot identified in the preceding applicability provided by the Master Minimum Equipment be determined. Nevertheless, because of provision, regardless of whether it has been List (MMEL).]’’ the severity of the unsafe condition modified, altered, or repaired in the area (2) Revise the FAA-approved AFM by addressed, the FAA has determined that subject to the requirements of this AD. For incorporating the following into the 20636 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

Procedures Section of the AFM. This may be appropriate FAA Maintenance Inspector, CE–02–AD, Room 1558, 601 E. 12th accomplished by inserting a copy of this AD who may add comments and then send it to Street, Kansas City, Missouri 64106. in the AFM. the Manager, Small Airplane Directorate. FOR FURTHER INFORMATION CONTACT: Mr. ‘‘THE FOLLOWING WEATHER Note 3: Information concerning the John Dow, Aerospace Engineer, FAA, existence of approved alternative methods of CONDITIONS MAY BE CONDUCIVE TO Small Airplane Directorate, 1201 SEVERE IN-FLIGHT ICING: compliance with this AD, if any, may be obtained from the Small Airplane Walnut, suite 900, Kansas City, Missouri • Visible rain at temperatures below 0 Directorate. 64106; telephone (816) 426–6934; degrees Celsius ambient air temperature. facsimile (816) 426–2169. • Droplets that splash or splatter on impact (e) All persons affected by this directive at temperatures below 0 degrees Celsius may examine information related to this AD SUPPLEMENTARY INFORMATION: A ambient air temperature. at the FAA, Central Region, Office of the proposal to amend part 39 of the Federal Assistant Chief Counsel, Room 1558, 601 E. Aviation Regulations (14 CFR part 39) to PROCEDURES FOR EXITING THE SEVERE 12th Street, Kansas City, Missouri 64106. include an AD that would apply to ICING ENVIRONMENT: (f) This amendment (39–9587) becomes EMBRAER Models EMB–110P1 and effective on June 11, 1996. These procedures are applicable to all EMB–110P2 airplanes was published in flight phases from takeoff to landing. Monitor Issued in Kansas City, Missouri, on April the Federal Register on January 25, 24, 1996. the ambient air temperature. While severe 1996 (61 FR 2183). The action proposed icing may form at temperatures as cold as Henry A. Armstrong, ¥18 degrees Celsius, increased vigilance is to require revising the Airplane Flight Acting Manager, Small Airplane Directorate, Manual (AFM) to specify procedures warranted at temperatures around freezing Aircraft Certification Service. with visible moisture present. If the visual that would prohibit flight in freezing cues specified in the Limitations Section of [FR Doc. 96–10728 Filed 5–1–96; 3:23 pm] rain or freezing drizzle conditions (as the AFM for identifying severe icing BILLING CODE 4910±13±P determined by certain visual cues), limit conditions are observed, accomplish the or prohibit the use of various flight following: control devices, and provide the flight • Immediately request priority handling 14 CFR Part 39 crew with recognition cues for, and from Air Traffic Control to facilitate a route procedures for exiting from, severe icing or an altitude change to exit the severe icing [Docket No. 96±CE±02±AD; Amendment 39± conditions in order to avoid extended 9588; AD 96±09±12] conditions. exposure to flight conditions more severe Disposition of Comments than those for which the airplane has been RIN 2120±AA64 certificated. For the disposition of comments on • Avoid abrupt and excessive Airworthiness Directives; Empresa this rulemaking action, see Docket No. maneuvering that may exacerbate control Brasileiro de Aeronautico, S.A. Models 96–CE–01; Amendment 39–9587; AD difficulties. EMB±110P1 and EMB±110P2 Airplanes 96–09–11, Airworthiness Directives; de • Do not engage the autopilot. Havilland, Inc. DHC–6 Series Airplanes, • AGENCY: Federal Aviation If the autopilot is engaged, hold the published elsewhere in this issue of the Administration, DOT. control wheel firmly and disengage the Federal Register. autopilot. ACTION: Final rule. • If an unusual roll response or Conclusion uncommanded roll control movement is SUMMARY: This amendment adopts a After careful review of the available observed, reduce the angle-of-attack. new airworthiness directive (AD) that • data, including the comments noted Do not extend flaps during extended applies to Empresa Brasileiro de operation in icing conditions. Operation with above, the FAA has determined that air Aeronautico, S.A. (EMBRAER) Models flaps extended can result in a reduced wing safety and the public interest require the EMB–110P1 and EMB–110P2 airplanes. angle-of-attack, with the possibility of ice adoption of the rule with the changes This action requires revising the forming on the upper surface further aft on previously described. The FAA has Airplane Flight Manual (AFM) to the wing than normal, possibly aft of the determined that these changes will protected area. provide the flight crew with recognition neither increase the economic burden • If the flaps are extended, do not retract cues for, and procedures for exiting on any operator nor increase the scope them until the airframe is clear of ice. from, severe icing conditions, and to • of the AD. Report these weather conditions to Air limit or prohibit the use of various flight Traffic Control.’’ control devices. This amendment is Cost Impact (b) Incorporating the AFM revisions, as required by this AD, may be performed by prompted by results of a review of the The FAA estimates that 169 airplanes the owner/operator holding at least a private requirements for certification of the in the U.S. registry will be affected by pilot certificate as authorized by section 43.7 airplane in icing conditions, new this AD, that it will take approximately of the Federal Aviation Regulations (14 CFR information on the icing environment, 1 workhour per airplane to accomplish 43.7), and must be entered into the aircraft and icing data provided currently to the the required action, and that the average records showing compliance with this AD in flight crews. The actions specified by labor rate is approximately $60 an hour. accordance with section 43.11 of the Federal this AD are intended to minimize the Aviation Regulations (14 CFR 43.11). Since an owner/operator who holds at potential hazards associated with least a private pilot’s certificate as (c) Special flight permits may be issued in operating the airplane in freezing rain or accordance with sections 21.197 and 21.199 authorized by sections 43.7 and 43.11 of of the Federal Aviation Regulations (14 CFR freezing drizzle conditions by providing the Federal Aviation Regulations (14 21.197 and 21.199) to operate the airplane to more clearly defined procedures and CFR 43.7 and 43.11) can accomplish the a location where the requirements of this AD limitations associated with such required action, the only cost impact can be accomplished. conditions. upon the public is the time it would (d) An alternative method of compliance or EFFECTIVE DATE: June 11, 1996. take the affected airplane owner/ adjustment of the compliance time that ADDRESSES: provides an acceptable level of safety may be Information that relates to operators to incorporate the AFM used if approved by the Manager, Small this AD may be examined at the Federal revisions. Airplane Directorate, FAA, 1201 Walnut, Aviation Administration (FAA), Central In addition, the FAA recognizes that suite 900, Kansas City, Missouri 64106. The Region, Office of the Assistant Chief this AD may impose operational costs. request shall be forwarded through an Counsel, Attention: Rules Docket 96– However, those costs are incalculable Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20637 because the frequency of occurrence of § 39.13 [Amended] —Accumulation of ice on the propeller the specified conditions and the 2. Section 39.13 is amended by spinner farther aft than normally observed. associated additional flight time cannot adding a new airworthiness directive • Since the autopilot may mask tactile be determined. Nevertheless, because of (AD) to read as follows: cues that indicate adverse changes in handling characteristics, use of the autopilot the severity of the unsafe condition 96–09–12 Empresa Brasileira de is prohibited when any of the visual cues addressed, the FAA has determined that Aeronautica, S.A. (EMBRAER): specified above exist, or when unusual continued operational safety Amendment 39–9588; Docket No. 96– lateral trim requirements or autopilot trim necessitates the imposition of these CE–02–AD. warnings are encountered while the airplane costs. Applicability: Models EMB–110P1 and is in icing conditions. EMB–110P2 airplanes (all serial numbers), • All icing detection lights must be Regulatory Impact certificated in any category. operative prior to flight into icing conditions Note 1: This AD applies to each airplane at night. [NOTE: This supersedes any relief The regulations adopted herein will identified in the preceding applicability provided by the Master Minimum Equipment not have substantial direct effects on the provision, regardless of whether it has been List (MMEL).]’’ States, on the relationship between the modified, altered, or repaired in the area (2) Revise the FAA-approved AFM by national government and the States, or subject to the requirements of this AD. For incorporating the following into the airplanes that have been modified, altered, or Procedures Section of the AFM. This may be on the distribution of power and repaired so that the performance of the accomplished by inserting a copy of this AD responsibilities among the various requirements of this AD is affected, the in the AFM. levels of government. Therefore, in owner/operator must request approval for an ‘‘THE FOLLOWING WEATHER alternative method of compliance in accordance with Executive Order 12612, CONDITIONS MAY BE CONDUCIVE TO accordance with paragraph (d) of this AD. it is determined that this final rule does SEVERE IN-FLIGHT ICING: not have sufficient federalism The request should include an assessment of the effect of the modification, alteration, or • Visible rain at temperatures below 0 implications to warrant the preparation repair on the unsafe condition addressed by degrees Celsius ambient air temperature. of a Federalism Assessment. this AD; and, if the unsafe condition has not • Droplets that splash or splatter on impact For the reasons discussed above, I been eliminated, the request should include at temperatures below 0 degrees Celsius certify that this action (1) is not a specific proposed actions to address it. ambient air temperature. ‘‘significant regulatory action’’ under Compliance: Required as indicated, unless PROCEDURES FOR EXITING THE SEVERE accomplished previously. ICING ENVIRONMENT: Executive Order 12866; (2) is not a To minimize the potential hazards ‘‘significant rule’’ under DOT associated with operating the airplane in These procedures are applicable to all Regulatory Policies and Procedures (44 severe icing conditions by providing more flight phases from takeoff to landing. Monitor FR 11034, February 26, 1979); and (3) clearly defined procedures and limitations the ambient air temperature. While severe will not have a significant economic associated with such conditions, accomplish icing may form at temperatures as cold as the following: ¥18 degrees Celsius, increased vigilance is impact, positive or negative, on a (a) Within 30 days after the effective date warranted at temperatures around freezing substantial number of small entities of this AD, accomplish the requirements of with visible moisture present. If the visual under the criteria of the Regulatory paragraphs (a)(1) and (a)(2) of this AD. cues specified in the Limitations Section of Flexibility Act. A copy of the final Note 2: Operators must initiate action to the AFM for identifying severe icing evaluation prepared for this action is notify and ensure that flight crewmembers conditions are observed, accomplish the are apprised of this change. following: contained in the Rules Docket. A copy • (1) Revise the FAA-approved Airplane Immediately request priority handling of it may be obtained by contacting the from Air Traffic Control to facilitate a route Rules Docket at the location provided Flight Manual (AFM) by incorporating the following into the Limitations Section of the or an altitude change to exit the severe icing ADDRESSES under the caption . AFM. This may be accomplished by inserting conditions in order to avoid extended a copy of this AD in the AFM. exposure to flight conditions more severe List of Subjects in 14 CFR Part 39 than those for which the airplane has been ‘‘WARNING certificated. Air transportation, Aircraft, Aviation Severe icing may result from • Avoid abrupt and excessive safety, Incorporation by reference, environmental conditions outside of those for maneuvering that may exacerbate control Safety. which the airplane is certificated. Flight in difficulties. freezing rain, freezing drizzle, or mixed icing • Do not engage the autopilot. Adoption of the Amendment conditions (supercooled liquid water and ice • If the autopilot is engaged, hold the control wheel firmly and disengage the Accordingly, pursuant to the crystals) may result in ice build-up on protected surfaces exceeding the capability of autopilot. authority delegated to me by the the ice protection system, or may result in ice • If an unusual roll response or Administrator, the Federal Aviation forming aft of the protected surfaces. This ice uncommanded roll control movement is Administration amends part 39 of the may not be shed using the ice protection observed, reduce the angle-of-attack. Federal Aviation Regulations (14 CFR systems, and may seriously degrade the • Do not extend flaps during extended part 39) as follows: performance and controllability of the operation in icing conditions. Operation with airplane. flaps extended can result in a reduced wing • PART 39ÐAIRWORTHINESS During flight, severe icing conditions angle-of-attack, with the possibility of ice that exceed those for which the airplane is forming on the upper surface further aft on DIRECTIVES certificated shall be determined by the the wing than normal, possibly aft of the following visual cues. If one or more of these protected area. 1. The authority citation for part 39 visual cues exists, immediately request • If the flaps are extended, do not retract continues to read as follows: priority handling from Air Traffic Control to them until the airframe is clear of ice. facilitate a route or an altitude change to exit • Authority: 49 USC 106(g), 40113, 44701. Report these weather conditions to Air the icing conditions. Traffic Control.’’ —Unusually extensive ice accreted on the (b) Incorporating the AFM revisions, as airframe in areas not normally observed to required by this AD, may be performed by collect ice. the owner/operator holding at least a private —Accumulation of ice on the lower surface pilot certificate as authorized by section 43.7 of the wing aft of the protected area. of the Federal Aviation Regulations (14 CFR 20638 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

43.7), and must be entered into the aircraft icing environment, and icing data this AD, that it will take approximately records showing compliance with this AD in provided currently to the flight crews. 1 workhour per airplane to accomplish accordance with section 43.11 of the Federal The actions specified by this AD are the required action, and that the average Aviation Regulations (14 CFR 43.11). intended to minimize the potential labor rate is approximately $60 an hour. (c) Special flight permits may be issued in accordance with sections 21.197 and 21.199 hazards associated with operating the Since an owner/operator who holds at of the Federal Aviation Regulations (14 CFR airplane in freezing rain or freezing least a private pilot’s certificate as 21.197 and 21.199) to operate the airplane to drizzle conditions by providing more authorized by sections 43.7 and 43.11 of a location where the requirements of this AD clearly defined procedures and the Federal Aviation Regulations (14 can be accomplished. limitations associated with such CFR 43.7 and 43.11) can accomplish the (d) An alternative method of compliance or conditions. required action, the only cost impact adjustment of the compliance time that EFFECTIVE DATE: June 11, 1996. upon the public is the time it would provides an acceptable level of safety may be ADDRESSES: Information that relates to take the affected airplane owner/ used if approved by the Manager, Small operators to incorporate the AFM Airplane Directorate, FAA, 1201 Walnut, this AD may be examined at the Federal suite 900, Kansas City, Missouri 64106. The Aviation Administration (FAA), Central revisions. request shall be forwarded through an Region, Office of the Assistant Chief In addition, the FAA recognizes that appropriate FAA Maintenance Inspector, Counsel, Attention: Rules Docket 96– this AD may impose operational costs. who may add comments and then send it to CE–03–AD, Room 1558, 601 E. 12th However, those costs are incalculable the Manager, Small Airplane Directorate. Street, Kansas City, Missouri 64106. because the frequency of occurrence of Note 3: Information concerning the FOR FURTHER INFORMATION CONTACT: Mr. the specified conditions and the existence of approved alternative methods of John Dow, Aerospace Engineer, FAA, associated additional flight time cannot compliance with this AD, if any, may be be determined. Nevertheless, because of obtained from the Small Airplane Small Airplane Directorate, 1201 Walnut, suite 900, Kansas City, Missouri the severity of the unsafe condition Directorate. addressed, the FAA has determined that (e) All persons affected by this directive 64106; telephone (816) 426–6934; facsimile (816) 426–2169. continued operational safety may examine information related to this AD necessitates the imposition of these at the FAA, Central Region, Office of the SUPPLEMENTARY INFORMATION: A costs. Assistant Chief Counsel, Room 1558, 601 E. proposal to amend part 39 of the Federal 12th Street, Kansas City, Missouri 64106. Aviation Regulations (14 CFR part 39) to Regulatory Impact (f) This amendment (39–9588) becomes include an AD that would apply to The regulations adopted herein will effective on June 11, 1996. Models 99, 99A, A99A, B99, C99, B200, not have substantial direct effects on the Issued in Kansas City, Missouri, on April B200C, 1900, 1900C, and 1900D States, on the relationship between the 24, 1996. airplanes was published in the Federal national government and the States, or Henry A. Armstrong, Register on January 25, 1996 (61 FR on the distribution of power and Acting Manager, Small Airplane Directorate, 2180). The action proposed to require responsibilities among the various Aircraft Certification Service. revising the Airplane Flight Manual levels of government. Therefore, in [FR Doc. 96–10725 Filed 5–1–96; 3:23 pm] (AFM) to specify procedures that would accordance with Executive Order 12612, BILLING CODE 4910±13±P prohibit flight in freezing rain or it is determined that this final rule does freezing drizzle conditions (as not have sufficient federalism determined by certain visual cues), limit implications to warrant the preparation 14 CFR Part 39 or prohibit the use of various flight of a Federalism Assessment. control devices, and provide the flight [Docket No. 96±CE±03±AD; Amendment 39± For the reasons discussed above, I 9589; AD 96±09±13] crew with recognition cues for, and procedures for exiting from, severe icing certify that this action (1) is not a [RIN 2120±AA64] conditions. ‘‘significant regulatory action’’ under Executive Order 12866; (2) is not a Airworthiness Directives; Beech Disposition of Comments ‘‘significant rule’’ under DOT Aircraft Corporation Models 99, 99A, For the disposition of comments on Regulatory Policies and Procedures (44 A99A, B99, C99, B200, B200C, 1900, FR 11034, February 26, 1979); and (3) 1900C, and 1900D Airplanes this rulemaking action, see Docket No. 96–CE–01; Amendment 39–9587; AD will not have a significant economic AGENCY: Federal Aviation 96–09–11, Airworthiness Directives; de impact, positive or negative, on a Administration, DOT. Havilland, Inc. DHC–6 Series Airplanes, substantial number of small entities ACTION: Final rule. published elsewhere in this issue of the under the criteria of the Regulatory Federal Register. Flexibility Act. A copy of the final SUMMARY: This amendment adopts a evaluation prepared for this action is new airworthiness directive (AD) that Conclusion contained in the Rules Docket. A copy applies to all Beech Aircraft Corporation After careful review of the available of it may be obtained by contacting the (Beech) Models 99, 99A, A99A, B99, data, including the comments noted Rules Docket at the location provided C99, B200, B200C, 1900, 1900C, and above, the FAA has determined that air under the caption ADDRESSES. 1900D airplanes. This action requires safety and the public interest require the List of Subjects in 14 CFR Part 39 revising the Airplane Flight Manual adoption of the rule with the changes (AFM) to provide the flight crew with previously described. The FAA has Air transportation, Aircraft, Aviation recognition cues for, and procedures for determined that these changes will safety, Incorporation by reference, exiting from, severe icing conditions, neither increase the economic burden Safety. and to limit or prohibit the use of on any operator nor increase the scope Adoption of the Amendment various flight control devices. This of the AD. amendment is prompted by results of a Accordingly, pursuant to the review of the requirements for Cost Impact authority delegated to me by the certification of the airplane in icing The FAA estimates that 169 airplanes Administrator, the Federal Aviation conditions, new information on the in the U.S. registry will be affected by Administration amends part 39 of the Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20639

Federal Aviation Regulations (14 CFR certificated shall be determined by the the wing than normal, possibly aft of the part 39) as follows: following visual cues. If one or more of these protected area. visual cues exists, immediately request • If the flaps are extended, do not retract PART 39ÐAIRWORTHINESS priority handling from Air Traffic Control to them until the airframe is clear of ice. DIRECTIVES facilitate a route or an altitude change to exit • Report these weather conditions to Air the icing conditions. Traffic Control.’’ 1. The authority citation for part 39 —Unusually extensive ice accreted on the (b) Incorporating the AFM revisions, as continues to read as follows: airframe in areas not normally observed to required by this AD, may be performed by collect ice. the owner/operator holding at least a private Authority: 49 USC 106(g), 40113, 44701. —Accumulation of ice on the lower surface pilot certificate as authorized by section 43.7 § 39.13 [Amended] of the wing aft of the protected area. of the Federal Aviation Regulations (14 CFR —Accumulation of ice on the propeller 43.7), and must be entered into the aircraft 2. Section 39.13 is amended by spinner farther aft than normally observed. records showing compliance with this AD in adding a new airworthiness directive • Since the autopilot may mask tactile accordance with section 43.11 of the Federal (AD) to read as follows: cues that indicate adverse changes in Aviation Regulations (14 CFR 43.11). 96–09–13 Beech Aircraft Corporation: handling characteristics, use of the autopilot (c) Special flight permits may be issued in Amendment 39–9589; Docket No. 96– is prohibited when any of the visual cues accordance with sections 21.197 and 21.199 CE–03–AD. specified above exist, or when unusual of the Federal Aviation Regulations (14 CFR Applicability: Models 99, 99A, A99A, B99, lateral trim requirements or autopilot trim 21.197 and 21.199) to operate the airplane to C99, B200, B200C, 1900, 1900C, and 1900D warnings are encountered while the airplane a location where the requirements of this AD is in icing conditions. can be accomplished. airplanes (all serial numbers), certificated in • any category. All icing detection lights must be (d) An alternative method of compliance or operative prior to flight into icing conditions adjustment of the compliance time that Note 1: This AD applies to each airplane at night. [NOTE: This supersedes any relief provides an acceptable level of safety may be identified in the preceding applicability provided by the Master Minimum Equipment used if approved by the Manager, Small provision, regardless of whether it has been List (MMEL).]’’ Airplane Directorate, FAA, 1201 Walnut, modified, altered, or repaired in the area (2) Revise the FAA-approved AFM by suite 900, Kansas City, Missouri 64106. The subject to the requirements of this AD. For incorporating the following into the request shall be forwarded through an airplanes that have been modified, altered, or Procedures Section of the AFM. This may be appropriate FAA Maintenance Inspector, repaired so that the performance of the accomplished by inserting a copy of this AD who may add comments and then send it to requirements of this AD is affected, the in the AFM. the Manager, Small Airplane Directorate. owner/operator must request approval for an alternative method of compliance in ‘‘THE FOLLOWING WEATHER Note 3: Information concerning the accordance with paragraph (d) of this AD. CONDITIONS MAY BE CONDUCIVE TO existence of approved alternative methods of The request should include an assessment of SEVERE IN-FLIGHT ICING: compliance with this AD, if any, may be obtained from the Small Airplane the effect of the modification, alteration, or • Visible rain at temperatures below 0 Directorate. repair on the unsafe condition addressed by degrees Celsius ambient air temperature. this AD; and, if the unsafe condition has not • Droplets that splash or splatter on impact (e) All persons affected by this directive been eliminated, the request should include at temperatures below 0 degrees Celsius may examine information related to this AD specific proposed actions to address it. ambient air temperature. at the FAA, Central Region, Office of the Compliance: Required as indicated, unless Assistant Chief Counsel, Room 1558, 601 E. accomplished previously. PROCEDURES FOR EXITING THE SEVERE 12th Street, Kansas City, Missouri 64106. To minimize the potential hazards ICING ENVIRONMENT: (f) This amendment (39–9589) becomes associated with operating the airplane in These procedures are applicable to all effective on June 11, 1996. severe icing conditions by providing more flight phases from takeoff to landing. Monitor Issued in Kansas City, Missouri, on April clearly defined procedures and limitations the ambient air temperature. While severe 24, 1996. associated with such conditions, accomplish icing may form at temperatures as cold as -18 Henry A. Armstrong, the following: degrees Celsius, increased vigilance is (a) Within 30 days after the effective date Acting Manager, Small Airplane Directorate, warranted at temperatures around freezing Aircraft Certification Service. of this AD, accomplish the requirements of with visible moisture present. If the visual paragraphs (a)(1) and (a)(2) of this AD. cues specified in the Limitations Section of [FR Doc. 96–10723 Filed 5–1–96; 3:23 pm] Note 2: Operators must initiate action to the AFM for identifying severe icing BILLING CODE 4910±13±P notify and ensure that flight crewmembers conditions are observed, accomplish the are apprised of this change. following: (1) Revise the FAA-approved Airplane • Immediately request priority handling 14 CFR Part 39 from Air Traffic Control to facilitate a route Flight Manual (AFM) by incorporating the [Docket No. 96±CE±04±AD; Amendment 39± or an altitude change to exit the severe icing following into the Limitations Section of the 9590; AD 96±09- 14] AFM. This may be accomplished by inserting conditions in order to avoid extended a copy of this AD in the AFM. exposure to flight conditions more severe RIN 2120±AA64 than those for which the airplane has been ‘‘WARNING certificated. Airworthiness Directives; Dornier 228 Severe icing may result from • Avoid abrupt and excessive Series Airplanes environmental conditions outside of those for maneuvering that may exacerbate control which the airplane is certificated. Flight in difficulties. AGENCY: Federal Aviation freezing rain, freezing drizzle, or mixed icing • Do not engage the autopilot. Administration, DOT. • conditions (supercooled liquid water and ice If the autopilot is engaged, hold the ACTION: Final rule. crystals) may result in ice build-up on control wheel firmly and disengage the protected surfaces exceeding the capability of autopilot. SUMMARY: This amendment adopts a • the ice protection system, or may result in ice If an unusual roll response or new airworthiness directive (AD) that forming aft of the protected surfaces. This ice uncommanded roll control movement is applies to all Dornier 228 series may not be shed using the ice protection observed, reduce the angle-of-attack. systems, and may seriously degrade the • Do not extend flaps during extended airplanes. This action requires revising performance and controllability of the operation in icing conditions. Operation with the Airplane Flight Manual (AFM) to airplane. flaps extended can result in a reduced wing provide the flight crew with recognition • During flight, severe icing conditions angle-of-attack, with the possibility of ice cues for, and procedures for exiting that exceed those for which the airplane is forming on the upper surface further aft on from, severe icing conditions, and to 20640 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations limit or prohibit the use of various flight Cost Impact Administrator, the Federal Aviation control devices. This amendment is The FAA estimates that 169 airplanes Administration amends part 39 of the prompted by results of a review of the in the U.S. registry will be affected by Federal Aviation Regulations (14 CFR requirements for certification of the this AD, that it will take approximately part 39) as follows: airplane in icing conditions, new 1 workhour per airplane to accomplish PART 39ÐAIRWORTHINESS information on the icing environment, the required action, and that the average DIRECTIVES and icing data provided currently to the labor rate is approximately $60 an hour. flight crews. The actions specified by Since an owner/operator who holds at 1. The authority citation for part 39 this AD are intended to minimize the least a private pilot’s certificate as continues to read as follows: potential hazards associated with authorized by sections 43.7 and 43.11 of operating the airplane in freezing rain or the Federal Aviation Regulations (14 Authority: 49 USC 106(g), 40113, 44701. freezing drizzle conditions by providing CFR 43.7 and 43.11) can accomplish the § 39.13 [Amended] more clearly defined procedures and required action, the only cost impact limitations associated with such upon the public is the time it would 2. Section 39.13 is amended by conditions. take the affected airplane owner/ adding a new airworthiness directive (AD) to read as follows: EFFECTIVE DATE: June 11, 1996. operators to incorporate the AFM revisions. 96–09–14 Dornier: Amendment 39–9590; ADDRESSES: Information that relates to In addition, the FAA recognizes that Docket No. 96- CE–04–AD. Applicability: this AD may be examined at the Federal this AD may impose operational costs. Models 228–100, 228–101, 228–200, 228- Aviation Administration (FAA), Central However, those costs are incalculable 201, 228–202, and 228–212 airplanes (all Region, Office of the Assistant Chief because the frequency of occurrence of serial numbers), certificated in any Counsel, Attention: Rules Docket 96– the specified conditions and the category. CE–04–AD, Room 1558, 601 E. 12th associated additional flight time cannot Note 1: This AD applies to each airplane Street, Kansas City, Missouri 64106. be determined. Nevertheless, because of identified in the preceding applicability provision, regardless of whether it has been FOR FURTHER INFORMATION CONTACT: Mr. the severity of the unsafe condition modified, altered, or repaired in the area John Dow, Aerospace Engineer, FAA, addressed, the FAA has determined that subject to the requirements of this AD. For Small Airplane Directorate, 1201 continued operational safety airplanes that have been modified, altered, or Walnut, suite 900, Kansas City, Missouri necessitates the imposition of these repaired so that the performance of the 64106; telephone (816) 426–6934; costs. requirements of this AD is affected, the facsimile (816) 426–2169. owner/operator must request approval for an Regulatory Impact alternative method of compliance in SUPPLEMENTARY INFORMATION: A accordance with paragraph (d) of this AD. proposal to amend part 39 of the Federal The regulations adopted herein will not have substantial direct effects on the The request should include an assessment of Aviation Regulations (14 CFR part 39) to the effect of the modification, alteration, or include an AD that would apply to States, on the relationship between the national government and the States, or repair on the unsafe condition addressed by Dornier 228 series airplanes was on the distribution of power and this AD; and, if the unsafe condition has not published in the Federal Register on been eliminated, the request should include responsibilities among the various January 25, 1996 (61 FR 2172). The specific proposed actions to address it. levels of government. Therefore, in action proposed to require revising the Compliance: Required as indicated, unless accordance with Executive Order 12612, Airplane Flight Manual (AFM) to accomplished previously. it is determined that this final rule does specify procedures that would prohibit To minimize the potential hazards not have sufficient federalism flight in freezing rain or freezing drizzle associated with operating the airplane in implications to warrant the preparation conditions (as determined by certain severe icing conditions by providing more of a Federalism Assessment. clearly defined procedures and limitations visual cues), limit or prohibit the use of For the reasons discussed above, I associated with such conditions, accomplish various flight control devices, and certify that this action (1) is not a the following: provide the flight crew with recognition ‘‘significant regulatory action’’ under (a) Within 30 days after the effective date cues for, and procedures for exiting Executive Order 12866; (2) is not a of this AD, accomplish the requirements of from, severe icing conditions. ‘‘significant rule’’ under DOT paragraphs (a)(1) and (a)(2) of this AD. Disposition of Comments Regulatory Policies and Procedures (44 Note 2: Operators must initiate action to FR 11034, February 26, 1979); and (3) notify and ensure that flight crewmembers are apprised of this change. For the disposition of comments on will not have a significant economic this rulemaking action, see Docket No. impact, positive or negative, on a (1) Revise the FAA-approved Airplane 96–CE–01; Amendment 39–9587; AD Flight Manual (AFM) by incorporating the substantial number of small entities following into the Limitations Section of the 96–09–11, Airworthiness Directives; de under the criteria of the Regulatory Havilland, Inc. DHC–6 Series Airplanes, AFM. This may be accomplished by inserting Flexibility Act. A copy of the final a copy of this AD in the AFM. published elsewhere in this issue of the evaluation prepared for this action is Federal Register. contained in the Rules Docket. A copy ‘‘WARNING Conclusion of it may be obtained by contacting the Severe icing may result from Rules Docket at the location provided environmental conditions outside of those for which the airplane is certificated. Flight in After careful review of the available under the caption ADDRESSES. data, including the comments noted freezing rain, freezing drizzle, or mixed icing above, the FAA has determined that air List of Subjects in 14 CFR Part 39 conditions (supercooled liquid water and ice crystals) may result in ice build-up on safety and the public interest require the Air transportation, Aircraft, Aviation adoption of the rule with the changes protected surfaces exceeding the capability of safety, Incorporation by reference, the ice protection system, or may result in ice previously described. The FAA has Safety. forming aft of the protected surfaces. This ice determined that these changes will Adoption of the Amendment may not be shed using the ice protection neither increase the economic burden systems, and may seriously degrade the on any operator nor increase the scope Accordingly, pursuant to the performance and controllability of the of the AD. authority delegated to me by the airplane. Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20641

• During flight, severe icing conditions angle-of-attack, with the possibility of ice the Airplane Flight Manual (AFM) to that exceed those for which the airplane is forming on the upper surface further aft on provide the flight crew with recognition certificated shall be determined by the the wing than normal, possibly aft of the cues for, and procedures for exiting following visual cues. If one or more of these protected area. from, severe icing conditions, and to visual cues exists, immediately request • If the flaps are extended, do not retract priority handling from Air Traffic Control to them until the airframe is clear of ice. limit or prohibit the use of various flight facilitate a route or an altitude change to exit • Report these weather conditions to Air control devices. This amendment is the icing conditions. Traffic Control.’’ prompted by results of a review of the —Unusually extensive ice accreted on the (b) Incorporating the AFM revisions, as requirements for certification of the airframe in areas not normally observed to required by this AD, may be performed by airplane in icing conditions, new collect ice. the owner/operator holding at least a private information on the icing environment, —Accumulation of ice on the upper surface pilot certificate as authorized by section 43.7 and icing data provided currently to the of the wing aft of the protected area. of the Federal Aviation Regulations (14 CFR flight crews. The actions specified by —Accumulation of ice on the propeller 43.7), and must be entered into the aircraft this AD are intended to minimize the records showing compliance with this AD in spinner farther aft than normally observed. potential hazards associated with • Since the autopilot may mask tactile accordance with section 43.11 of the Federal Aviation Regulations (14 CFR 43.11). operating the airplane in freezing rain or cues that indicate adverse changes in freezing drizzle conditions by providing handling characteristics, use of the autopilot (c) Special flight permits may be issued in is prohibited when any of the visual cues accordance with sections 21.197 and 21.199 more clearly defined procedures and specified above exist, or when unusual of the Federal Aviation Regulations (14 CFR limitations associated with such lateral trim requirements or autopilot trim 21.197 and 21.199) to operate the airplane to conditions. warnings are encountered while the airplane a location where the requirements of this AD EFFECTIVE DATE: June 11, 1996. can be accomplished. is in icing conditions. ADDRESSES: Information that relates to • All icing detection lights must be (d) An alternative method of compliance or operative prior to flight into icing conditions adjustment of the compliance time that this AD may be examined at the Federal at night. [NOTE: This supersedes any relief provides an acceptable level of safety may be Aviation Administration (FAA), Central provided by the Master Minimum Equipment used if approved by the Manager, Small Region, Office of the Assistant Chief List (MMEL).]’’ Airplane Directorate, FAA, 1201 Walnut, Counsel, Attention: Rules Docket 96– (2) Revise the FAA-approved AFM by suite 900, Kansas City, Missouri 64106. The CE–05–AD, Room 1558, 601 E. 12th incorporating the following into the request shall be forwarded through an Street, Kansas City, Missouri 64106. Procedures Section of the AFM. This may be appropriate FAA Maintenance Inspector, FOR FURTHER INFORMATION CONTACT: Mr. accomplished by inserting a copy of this AD who may add comments and then send it to in the AFM. the Manager, Small Airplane Directorate. John Dow, Aerospace Engineer, FAA, Small Airplane Directorate, 1201 ‘‘THE FOLLOWING WEATHER Note 3: Information concerning the existence of approved alternative methods of Walnut, suite 900, Kansas City, Missouri CONDITIONS MAY BE CONDUCIVE TO 64106; telephone (816) 426–6934; SEVERE IN-FLIGHT ICING: compliance with this AD, if any, may be obtained from the Small Airplane facsimile (816) 426–2169. • Visible rain at temperatures below 0 Directorate. SUPPLEMENTARY INFORMATION: A degrees Celsius ambient air temperature. (e) All persons affected by this directive • Droplets that splash or splatter on impact proposal to amend part 39 of the Federal may examine information related to this AD at temperatures below 0 degrees Celsius Aviation Regulations (14 CFR part 39) to at the FAA, Central Region, Office of the ambient air temperature. include an AD that would apply to Assistant Chief Counsel, Room 1558, 601 E. Cessna Models 208 and 208B airplanes PROCEDURES FOR EXITING THE SEVERE 12th Street, Kansas City, Missouri 64106. was published in the Federal Register ICING ENVIRONMENT: (f) This amendment (39–9590) becomes on January 25, 1996 (61 FR 2178). The These procedures are applicable to all effective on June 11, 1996. Issued in Kansas City, Missouri, on April action proposed to require revising the flight phases from takeoff to landing. Monitor Airplane Flight Manual (AFM) to the ambient air temperature. While severe 24, 1996. icing may form at temperatures as cold as -18 Henry A. Armstrong, specify procedures that would prohibit degrees Celsius, increased vigilance is Acting Manager, Small Airplane Directorate, flight in freezing rain or freezing drizzle warranted at temperatures around freezing Aircraft Certification Service. conditions (as determined by certain with visible moisture present. If the visual [FR Doc. 96–10722 Filed 5–1–96; 3:24 am] visual cues), limit or prohibit the use of cues specified in the Limitations Section of various flight control devices, and BILLING CODE 4910±13±P the AFM for identifying severe icing provide the flight crew with recognition conditions are observed, accomplish the cues for, and procedures for exiting following: from, severe icing conditions. • Immediately request priority handling 14 CFR Part 39 from Air Traffic Control to facilitate a route [Docket No. 96±CE±05±AD; Amendment 39± Disposition of Comments or an altitude change to exit the severe icing 9591; AD 96±09±15] For the disposition of comments on conditions in order to avoid extended this rulemaking action, see Docket No. exposure to flight conditions more severe RIN 2120±AA64 than those for which the airplane has been 96–CE–01; Amendment 39–9587; AD certificated. Airworthiness Directives; Cessna 96–09–11, Airworthiness Directives; de • Avoid abrupt and excessive Aircraft Company Models 208 and Havilland, Inc. DHC–6 Series Airplanes, maneuvering that may exacerbate control 208B Airplanes published elsewhere in this issue of the difficulties. Federal Register. • Do not engage the autopilot. AGENCY: Federal Aviation • If the autopilot is engaged, hold the Administration, DOT. Conclusion control wheel firmly and disengage the ACTION: Final rule After careful review of the available autopilot. data, including the comments noted • If an unusual roll response or SUMMARY: uncommanded roll control movement is This amendment adopts a above, the FAA has determined that air observed, reduce the angle-of-attack. new airworthiness directive (AD) that safety and the public interest require the • Do not extend flaps during extended applies to all Cessna Aircraft Company adoption of the rule with the changes operation in icing conditions. Operation with (Cessna) Models 208 and 208B previously described. The FAA has flaps extended can result in a reduced wing airplanes. This action requires revising determined that these changes will 20642 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations neither increase the economic burden Adoption of the Amendment systems, and may seriously degrade the performance and controllability of the on any operator nor increase the scope Accordingly, pursuant to the of the AD. airplane. authority delegated to me by the • During flight, severe icing conditions Cost Impact Administrator, the Federal Aviation that exceed those for which the airplane is Administration amends part 39 of the The FAA estimates that 169 airplanes certificated shall be determined by the Federal Aviation Regulations (14 CFR following visual cues. If one or more of these in the U.S. registry will be affected by part 39) as follows: visual cues exists, immediately request this AD, that it will take approximately priority handling from Air Traffic Control to 1 workhour per airplane to accomplish PART 39ÐAIRWORTHINESS facilitate a route or an altitude change to exit the required action, and that the average DIRECTIVES the icing conditions. labor rate is approximately $60 an hour. —Unusually extensive ice accreted on the Since an owner/operator who holds at 1. The authority citation for part 39 airframe in areas not normally observed to least a private pilot’s certificate as continues to read as follows: collect ice. authorized by sections 43.7 and 43.11 of Authority: 49 USC 106(g), 40113, 44701. —Accumulation of ice on the upper surface the Federal Aviation Regulations (14 of the wing aft of the protected area. CFR 43.7 and 43.11) can accomplish the § 39.13 [Amended] —Accumulation of ice on the propeller 2. Section 39.13 is amended by spinner farther aft than normally observed. required action, the only cost impact • upon the public is the time it would adding a new airworthiness directive Since the autopilot may mask tactile (AD) to read as follows: cues that indicate adverse changes in take the affected airplane owner/ handling characteristics, use of the autopilot operators to incorporate the AFM 96–09–15 Cessna Aircraft Company: is prohibited when any of the visual cues revisions. Amendment 39–9591; Docket No. 96– specified above exist, or when unusual In addition, the FAA recognizes that CE–05–AD. lateral trim requirements or autopilot trim this AD may impose operational costs. Applicability: Models 208 and 208B warnings are encountered while the airplane However, those costs are incalculable airplanes (all serial numbers), certificated in is in icing conditions. because the frequency of occurrence of any category. • All icing detection lights must be the specified conditions and the Note 1: This AD applies to each airplane operative prior to flight into icing conditions associated additional flight time cannot identified in the preceding applicability at night. [NOTE: This supersedes any relief provided by the Master Minimum Equipment be determined. Nevertheless, because of provision, regardless of whether it has been modified, altered, or repaired in the area List (MMEL).]’’ the severity of the unsafe condition (2) Revise the FAA-approved AFM by addressed, the FAA has determined that subject to the requirements of this AD. For airplanes that have been modified, altered, or incorporating the following into the continued operational safety repaired so that the performance of the Procedures Section of the AFM. This may be necessitates the imposition of these requirements of this AD is affected, the accomplished by inserting a copy of this AD costs. owner/operator must request approval for an in the AFM. Regulatory Impact alternative method of compliance in ‘‘THE FOLLOWING WEATHER accordance with paragraph (d) of this AD. CONDITIONS MAY BE CONDUCIVE TO The regulations adopted herein will The request should include an assessment of SEVERE IN-FLIGHT ICING: the effect of the modification, alteration, or not have substantial direct effects on the • Visible rain at temperatures below 0 repair on the unsafe condition addressed by States, on the relationship between the degrees Celsius ambient air temperature. this AD; and, if the unsafe condition has not national government and the States, or • Droplets that splash or splatter on impact been eliminated, the request should include on the distribution of power and at temperatures below 0 degrees Celsius specific proposed actions to address it. ambient air temperature. responsibilities among the various Compliance: Required as indicated, unless levels of government. Therefore, in accomplished previously. PROCEDURES FOR EXITING THE SEVERE accordance with Executive Order 12612, To minimize the potential hazards ICING ENVIRONMENT: it is determined that this final rule does associated with operating the airplane in These procedures are applicable to all not have sufficient federalism severe icing conditions by providing more flight phases from takeoff to landing. Monitor implications to warrant the preparation clearly defined procedures and limitations the ambient air temperature. While severe of a Federalism Assessment. associated with such conditions, accomplish icing may form at temperatures as cold as -18 For the reasons discussed above, I the following: degrees Celsius, increased vigilance is certify that this action (1) is not a (a) Within 30 days after the effective date warranted at temperatures around freezing ‘‘significant regulatory action’’ under of this AD, accomplish the requirements of with visible moisture present. If the visual paragraphs (a)(1) and (a)(2) of this AD. Executive Order 12866; (2) is not a cues specified in the Limitations Section of ‘‘significant rule’’ under DOT Note 2: Operators must initiate action to the AFM for identifying severe icing notify and ensure that flight crewmembers Regulatory Policies and Procedures (44 conditions are observed, accomplish the are apprised of this change. following: FR 11034, February 26, 1979); and (3) (1) Revise the FAA-approved Airplane • Immediately request priority handling will not have a significant economic Flight Manual (AFM) by incorporating the from Air Traffic Control to facilitate a route impact, positive or negative, on a following into the Limitations Section of the or an altitude change to exit the severe icing substantial number of small entities AFM. This may be accomplished by inserting conditions in order to avoid extended under the criteria of the Regulatory a copy of this AD in the AFM. exposure to flight conditions more severe Flexibility Act. A copy of the final than those for which the airplane has been ‘‘WARNING evaluation prepared for this action is certificated. • contained in the Rules Docket. A copy Severe icing may result from Avoid abrupt and excessive of it may be obtained by contacting the environmental conditions outside of those for maneuvering that may exacerbate control which the airplane is certificated. Flight in difficulties. Rules Docket at the location provided freezing rain, freezing drizzle, or mixed icing • Do not engage the autopilot. under the caption ADDRESSES. conditions (supercooled liquid water and ice • If the autopilot is engaged, hold the List of Subjects in 14 CFR Part 39 crystals) may result in ice build-up on control wheel firmly and disengage the protected surfaces exceeding the capability of autopilot. Air transportation, Aircraft, Aviation the ice protection system, or may result in ice • If an unusual roll response or safety, Incorporation by reference, forming aft of the protected surfaces. This ice uncommanded roll control movement is Safety. may not be shed using the ice protection observed, reduce the angle-of-attack. Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20643

• Do not extend flaps during extended and SA227 series airplanes. This action adoption of the rule with the changes operation in icing conditions. Operation with requires revising the Airplane Flight previously described. The FAA has flaps extended can result in a reduced wing Manual (AFM) to provide the flight determined that these changes will angle-of-attack, with the possibility of ice crew with recognition cues for, and neither increase the economic burden forming on the upper surface further aft on the wing than normal, possibly aft of the procedures for exiting from, severe icing on any operator nor increase the scope protected area. conditions, and to limit or prohibit the of the AD. • use of various flight control devices. If the flaps are extended, do not retract Cost Impact them until the airframe is clear of ice. This amendment is prompted by results • Report these weather conditions to Air of a review of the requirements for The FAA estimates that 169 airplanes Traffic Control.’’ certification of the airplane in icing (b) Incorporating the AFM revisions, as in the U.S. registry will be affected by conditions, new information on the this AD, that it will take approximately required by this AD, may be performed by icing environment, and icing data the owner/operator holding at least a private 1 workhour per airplane to accomplish pilot certificate as authorized by section 43.7 provided currently to the flight crews. the required action, and that the average of the Federal Aviation Regulations (14 CFR The actions specified by this AD are labor rate is approximately $60 an hour. 43.7), and must be entered into the aircraft intended to minimize the potential Since an owner/operator who holds at records showing compliance with this AD in hazards associated with operating the least a private pilot’s certificate as accordance with section 43.11 of the Federal airplane in freezing rain or freezing authorized by sections 43.7 and 43.11 of Aviation Regulations (14 CFR 43.11). drizzle conditions by providing more (c) Special flight permits may be issued in the Federal Aviation Regulations (14 clearly defined procedures and CFR 43.7 and 43.11) can accomplish the accordance with sections 21.197 and 21.199 limitations associated with such of the Federal Aviation Regulations (14 CFR required action, the only cost impact 21.197 and 21.199) to operate the airplane to conditions. upon the public is the time it would a location where the requirements of this AD EFFECTIVE DATE: June 11, 1996. take the affected airplane owner/ can be accomplished. ADDRESSES: Information that relates to operators to incorporate the AFM (d) An alternative method of compliance or this AD may be examined at the Federal revisions. adjustment of the compliance time that Aviation Administration (FAA), Central In addition, the FAA recognizes that provides an acceptable level of safety may be Region, Office of the Assistant Chief used if approved by the Manager, Small this AD may impose operational costs. Airplane Directorate, FAA, 1201 Walnut, Counsel, Attention: Rules Docket 96– However, those costs are incalculable suite 900, Kansas City, Missouri 64106. The CE–06–AD, Room 1558, 601 E. 12th because the frequency of occurrence of request shall be forwarded through an Street, Kansas City, Missouri 64106. the specified conditions and the appropriate FAA Maintenance Inspector, FOR FURTHER INFORMATION CONTACT: Mr. associated additional flight time cannot who may add comments and then send it to John Dow, Aerospace Engineer, FAA, be determined. Nevertheless, because of the Manager, Small Airplane Directorate. Small Airplane Directorate, 1201 the severity of the unsafe condition Note 3: Information concerning the Walnut, suite 900, Kansas City, Missouri addressed, the FAA has determined that existence of approved alternative methods of 64106; telephone (816) 426–6934; compliance with this AD, if any, may be continued operational safety obtained from the Small Airplane facsimile (816) 426–2169. necessitates the imposition of these Directorate. SUPPLEMENTARY INFORMATION: A costs. proposal to amend part 39 of the Federal (e) All persons affected by this directive Regulatory Impact may examine information related to this AD Aviation Regulations (14 CFR part 39) to at the FAA, Central Region, Office of the include an AD that would apply to The regulations adopted herein will Assistant Chief Counsel, Room 1558, 601 E. Fairchild Aircraft SA226 and SA227 not have substantial direct effects on the 12th Street, Kansas City, Missouri 64106. series airplanes was published in the (f) This amendment (39–9591) becomes States, on the relationship between the Federal Register on January 25, 1996 national government and the States, or effective on June 11, 1996. (61 FR 2189). The action proposed to Issued in Kansas City, Missouri, on April on the distribution of power and require revising the Airplane Flight responsibilities among the various 24, 1996. Manual (AFM) to specify procedures Henry A. Armstrong, levels of government. Therefore, in that would prohibit flight in freezing accordance with Executive Order 12612, Acting Manager, Small Airplane Directorate, rain or freezing drizzle conditions (as Aircraft Certification Service. it is determined that this final rule does determined by certain visual cues), limit not have sufficient federalism [FR Doc. 96–10729 Filed 5–1–96; 3:24 pm] or prohibit the use of various flight implications to warrant the preparation BILLING CODE 4910±13±P control devices, and provide the flight of a Federalism Assessment. crew with recognition cues for, and procedures for exiting from, severe icing For the reasons discussed above, I 14 CFR Part 39 conditions. certify that this action (1) is not a ‘‘significant regulatory action’’ under [Docket No. 96±CE±06±AD; Amendment 39± Disposition of Comments Executive Order 12866; (2) is not a 9592; AD 96±09±16] For the disposition of comments on ‘‘significant rule’’ under DOT RIN 2120±AA64 this rulemaking action, see Docket No. Regulatory Policies and Procedures (44 96–CE–01; Amendment 39–9587; AD FR 11034, February 26, 1979); and (3) Airworthiness Directives; Fairchild 96–09–11, Airworthiness Directives; de will not have a significant economic Aircraft SA226 and SA227 Series Havilland, Inc. DHC–6 Series Airplanes, impact, positive or negative, on a Airplanes published elsewhere in this issue of the substantial number of small entities AGENCY: Federal Aviation Federal Register. under the criteria of the Regulatory Flexibility Act. A copy of the final Administration, DOT. Conclusion ACTION: Final rule. evaluation prepared for this action is After careful review of the available contained in the Rules Docket. A copy SUMMARY: This amendment adopts a data, including the comments noted of it may be obtained by contacting the new airworthiness directive (AD) that above, the FAA has determined that air Rules Docket at the location provided applies to all Fairchild Aircraft SA226 safety and the public interest require the under the caption ADDRESSES. 20644 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

List of Subjects in 14 CFR Part 39 crystals) may result in ice build-up on • If the autopilot is engaged, hold the protected surfaces exceeding the capability of control wheel firmly and disengage the Air transportation, Aircraft, Aviation the ice protection system, or may result in ice autopilot. safety, Incorporation by reference, forming aft of the protected surfaces. This ice • If an unusual roll response or Safety. may not be shed using the ice protection uncommanded roll control movement is observed, reduce the angle-of-attack. Adoption of the Amendment systems, and may seriously degrade the performance and controllability of the • Do not extend flaps during extended Accordingly, pursuant to the airplane. operation in icing conditions. Operation with authority delegated to me by the • During flight, severe icing conditions flaps extended can result in a reduced wing Administrator, the Federal Aviation that exceed those for which the airplane is angle-of-attack, with the possibility of ice Administration amends part 39 of the certificated shall be determined by the forming on the upper surface further aft on following visual cues. If one or more of these the wing than normal, possibly aft of the Federal Aviation Regulations (14 CFR protected area. part 39) as follows: visual cues exists, immediately request • priority handling from Air Traffic Control to If the flaps are extended, do not retract them until the airframe is clear of ice. facilitate a route or an altitude change to exit PART 39ÐAIRWORTHINESS • Report these weather conditions to Air the icing conditions. DIRECTIVES Traffic Control.’’ —Unusually extensive ice accreted on the (b) Incorporating the AFM revisions, as 1. The authority citation for part 39 airframe in areas not normally observed to required by this AD, may be performed by continues to read as follows: collect ice. the owner/operator holding at least a private —Accumulation of ice on the lower surface Authority: 49 USC 106(g), 40113, 44701. pilot certificate as authorized by section 43.7 of the wing aft of the protected area. of the Federal Aviation Regulations (14 CFR § 39.13 [Amended] —Accumulation of ice on the propeller 43.7), and must be entered into the aircraft spinner farther aft than normally observed. records showing compliance with this AD in 2. Section 39.13 is amended by • adding a new airworthiness directive Since the autopilot may mask tactile accordance with section 43.11 of the Federal cues that indicate adverse changes in Aviation Regulations (14 CFR 43.11). (AD) to read as follows: handling characteristics, use of the autopilot (c) Special flight permits may be issued in 96–09–16 Fairchild Aircraft: Amendment is prohibited when any of the visual cues accordance with sections 21.197 and 21.199 39–9592; Docket No. 96–CE–06–AD. specified above exist, or when unusual of the Federal Aviation Regulations (14 CFR Applicability: Models SA226–T, SA226– lateral trim requirements or autopilot trim 21.197 and 21.199) to operate the airplane to T(B), SA226–AT, SA226–TC, SA227–TT, warnings are encountered while the airplane a location where the requirements of this AD SA227–AT, SA227–AC, SA227–BC, SA227– is in icing conditions. can be accomplished. CC, and SA227–DC airplanes (all serial • All icing detection lights must be (d) An alternative method of compliance or numbers), certificated in any category. operative prior to flight into icing conditions adjustment of the compliance time that at night. [NOTE: This supersedes any relief provides an acceptable level of safety may be Note 1: This AD applies to each airplane used if approved by the Manager, Small identified in the preceding applicability provided by the Master Minimum Equipment List (MMEL).]’’ Airplane Directorate, FAA, 1201 Walnut, provision, regardless of whether it has been suite 900, Kansas City, Missouri 64106. The (2) Revise the FAA-approved AFM by modified, altered, or repaired in the area request shall be forwarded through an incorporating the following into the subject to the requirements of this AD. For appropriate FAA Maintenance Inspector, Procedures Section of the AFM. This may be airplanes that have been modified, altered, or who may add comments and then send it to repaired so that the performance of the accomplished by inserting a copy of this AD the Manager, Small Airplane Directorate. requirements of this AD is affected, the in the AFM. Note 3: Information concerning the owner/operator must request approval for an ‘‘THE FOLLOWING WEATHER existence of approved alternative methods of alternative method of compliance in CONDITIONS MAY BE CONDUCIVE TO compliance with this AD, if any, may be accordance with paragraph (d) of this AD. SEVERE IN-FLIGHT ICING: obtained from the Small Airplane The request should include an assessment of Directorate. the effect of the modification, alteration, or • Visible rain at temperatures below 0 repair on the unsafe condition addressed by degrees Celsius ambient air temperature. (e) All persons affected by this directive this AD; and, if the unsafe condition has not • Droplets that splash or splatter on impact may examine information related to this AD been eliminated, the request should include at temperatures below 0 degrees Celsius at the FAA, Central Region, Office of the specific proposed actions to address it. ambient air temperature. Assistant Chief Counsel, Room 1558, 601 E. Compliance: Required as indicated, unless 12th Street, Kansas City, Missouri 64106. PROCEDURES FOR EXITING THE SEVERE accomplished previously. To minimize the (f) This amendment (39–9592) becomes potential hazards associated with operating ICING ENVIRONMENT: effective on June 11, 1996. the airplane in severe icing conditions by These procedures are applicable to all Issued in Kansas City, Missouri, on April providing more clearly defined procedures flight phases from takeoff to landing. Monitor 24, 1996. and limitations associated with such the ambient air temperature. While severe Henry A. Armstrong, conditions, accomplish the following: icing may form at temperatures as cold as Acting Manager, Small Airplane Directorate, ¥ (a) Within 30 days after the effective date 18 degrees Celsius, increased vigilance is Aircraft Certification Service. of this AD, accomplish the requirements of warranted at temperatures around freezing paragraphs (a)(1) and (a)(2) of this AD. with visible moisture present. If the visual [FR Doc. 96–10724 Filed 5–1–96; 3:25 pm] Note 2: Operators must initiate action to cues specified in the Limitations Section of BILLING CODE 4910±13±P notify and ensure that flight crewmembers the AFM for identifying severe icing are apprised of this change. conditions are observed, accomplish the (1) Revise the FAA-approved Airplane following: 14 CFR Part 39 • Immediately request priority handling Flight Manual (AFM) by incorporating the [Docket No. 96±CE±07±AD; Amendment 39± from Air Traffic Control to facilitate a route following into the Limitations Section of the 9593; AD 96±09±17] AFM. This may be accomplished by inserting or an altitude change to exit the severe icing a copy of this AD in the AFM. conditions in order to avoid extended RIN 2120±AA64 exposure to flight conditions more severe ‘‘WARNING than those for which the airplane has been Airworthiness Directives; Jetstream Severe icing may result from certificated. Aircraft Limited Jetstream Models 3101 environmental conditions outside of those for • Avoid abrupt and excessive and 3201 Airplanes which the airplane is certificated. Flight in maneuvering that may exacerbate control freezing rain, freezing drizzle, or mixed icing difficulties. AGENCY: Federal Aviation conditions (supercooled liquid water and ice • Do not engage the autopilot. Administration, DOT. Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20645

ACTION: Final rule. Conclusion contained in the Rules Docket. A copy After careful review of the available of it may be obtained by contacting the SUMMARY: This amendment adopts a data, including the comments noted Rules Docket at the location provided new airworthiness directive (AD) that above, the FAA has determined that air under the caption ADDRESSES. applies to all Jetstream Aircraft Limited safety and the public interest require the (JAL) Jetstream Models 3101 and 3201 List of Subjects in 14 CFR Part 39 adoption of the rule with the changes airplanes. This action requires revising previously described. The FAA has Air transportation, Aircraft, Aviation the Airplane Flight Manual (AFM) to determined that these changes will safety, Incorporation by reference, provide the flight crew with recognition neither increase the economic burden Safety. cues for, and procedures for exiting on any operator nor increase the scope from, severe icing conditions, and to Adoption of the Amendment of the AD. limit or prohibit the use of various flight control devices. This amendment is Cost Impact Accordingly, pursuant to the authority delegated to me by the prompted by results of a review of the The FAA estimates that 169 airplanes requirements for certification of the Administrator, the Federal Aviation in the U.S. registry will be affected by Administration amends part 39 of the airplane in icing conditions, new this AD, that it will take approximately information on the icing environment, Federal Aviation Regulations (14 CFR 1 workhour per airplane to accomplish part 39) as follows: and icing data provided currently to the the required action, and that the average flight crews. The actions specified by labor rate is approximately $60 an hour. PART 39ÐAIRWORTHINESS this AD are intended to minimize the Since an owner/operator who holds at DIRECTIVES potential hazards associated with least a private pilot’s certificate as operating the airplane in freezing rain or authorized by sections 43.7 and 43.11 of 1. The authority citation for part 39 freezing drizzle conditions by providing the Federal Aviation Regulations (14 continues to read as follows: more clearly defined procedures and CFR 43.7 and 43.11) can accomplish the Authority: 49 USC 106(g), 40113, 44701. limitations associated with such required action, the only cost impact conditions. upon the public is the time it would § 39.13 [AMENDED] EFFECTIVE DATE: June 11, 1996. take the affected airplane owner/ 2. Section 39.13 is amended by ADDRESSES: Information that relates to operators to incorporate the AFM adding a new airworthiness directive this AD may be examined at the Federal revisions. (AD) to read as follows: In addition, the FAA recognizes that Aviation Administration (FAA), Central 96–09–17 Jetstream Aircraft Limited: Region, Office of the Assistant Chief this AD may impose operational costs. However, those costs are incalculable Amendment 39–9593; Docket No. 96– Counsel, Attention: Rules Docket 96– CE–07–AD. CE–07–AD, Room 1558, 601 E. 12th because the frequency of occurrence of the specified conditions and the Applicability: Jetstream Models 3101 and Street, Kansas City, Missouri 64106. 3201 airplanes (all serial numbers), associated additional flight time cannot FOR FURTHER INFORMATION CONTACT: certificated in any category. Mr. be determined. Nevertheless, because of John Dow, Aerospace Engineer, FAA, Note 1: This AD applies to each airplane the severity of the unsafe condition identified in the preceding applicability Small Airplane Directorate, 1201 addressed, the FAA has determined that Walnut, suite 900, Kansas City, Missouri provision, regardless of whether it has been continued operational safety modified, altered, or repaired in the area 64106; telephone (816) 426–6934; necessitates the imposition of these facsimile (816) 426–2169. subject to the requirements of this AD. For costs. airplanes that have been modified, altered, or SUPPLEMENTARY INFORMATION: A repaired so that the performance of the proposal to amend part 39 of the Federal Regulatory Impact requirements of this AD is affected, the Aviation Regulations (14 CFR part 39) to The regulations adopted herein will owner/operator must request approval for an include an AD that would apply to JAL not have substantial direct effects on the alternative method of compliance in Jetstream Models 3101 and 3201 States, on the relationship between the accordance with paragraph (d) of this AD. airplanes was published in the Federal national government and the States, or The request should include an assessment of the effect of the modification, alteration, or Register on January 25, 1996 (61 FR on the distribution of power and repair on the unsafe condition addressed by 2186). The action proposed to require responsibilities among the various this AD; and, if the unsafe condition has not revising the Airplane Flight Manual levels of government. Therefore, in been eliminated, the request should include (AFM) to specify procedures that would accordance with Executive Order 12612, specific proposed actions to address it. prohibit flight in freezing rain or it is determined that this final rule does Compliance: Required as indicated, unless freezing drizzle conditions (as not have sufficient federalism accomplished previously. To minimize the determined by certain visual cues), limit implications to warrant the preparation potential hazards associated with operating or prohibit the use of various flight of a Federalism Assessment. the airplane in severe icing conditions by control devices, and provide the flight For the reasons discussed above, I providing more clearly defined procedures crew with recognition cues for, and certify that this action (1) is not a and limitations associated with such procedures for exiting from, severe icing ‘‘significant regulatory action’’ under conditions, accomplish the following: conditions. Executive Order 12866; (2) is not a (a) Within 30 days after the effective date of this AD, accomplish the requirements of ‘‘significant rule’’ under DOT Disposition of Comments paragraphs (a)(1) and (a)(2) of this AD. Regulatory Policies and Procedures (44 Note 2: Operators must initiate action to For the disposition of comments on FR 11034, February 26, 1979); and (3) notify and ensure that flight crewmembers this rulemaking action, see Docket No. will not have a significant economic are apprised of this change. 96–CE–01; Amendment 39–9587; AD impact, positive or negative, on a (1) Revise the FAA-approved Airplane 96–09–11, Airworthiness Directives; de substantial number of small entities Flight Manual (AFM) by incorporating the Havilland, Inc. DHC–6 Series Airplanes, under the criteria of the Regulatory following into the Limitations Section of the published elsewhere in this issue of the Flexibility Act. A copy of the final AFM. This may be accomplished by inserting Federal Register. evaluation prepared for this action is a copy of this AD in the AFM. 20646 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

‘‘WARNING • Avoid abrupt and excessive 14 CFR Part 39 Severe icing may result from maneuvering that may exacerbate control [Docket No. 95±NM±146±AD; Amendment environmental conditions outside of those for difficulties. 39±9604; AD 96±09±28] which the airplane is certificated. Flight in • Do not engage the autopilot. freezing rain, freezing drizzle, or mixed icing • If the autopilot is engaged, hold the RIN 2120±AA64 conditions (supercooled liquid water and ice control wheel firmly and disengage the crystals) may result in ice build-up on autopilot. Airworthiness Directives; Aerospatiale protected surfaces exceeding the capability of • If an unusual roll response or Model ATR±42 and ATR±72 Series the ice protection system, or may result in ice Airplanes forming aft of the protected surfaces. This ice uncommanded roll control movement is observed, reduce the angle-of-attack. may not be shed using the ice protection AGENCY: Federal Aviation • Do not extend flaps during extended systems, and may seriously degrade the Administration, DOT. performance and controllability of the operation in icing conditions. Operation with airplane. flaps extended can result in a reduced wing ACTION: Final rule. • During flight, severe icing conditions angle-of-attack, with the possibility of ice SUMMARY: This amendment supersedes that exceed those for which the airplane is forming on the upper surface further aft on an existing airworthiness directive (AD), certificated shall be determined by the the wing than normal, possibly aft of the following visual cues. If one or more of these applicable to all Aerospatiale Model protected area. visual cues exists, immediately request • ATR–42 and ATR–72 series airplanes. priority handling from Air Traffic Control to If the flaps are extended, do not retract Unless modifications are accomplished facilitate a route or an altitude change to exit them until the airframe is clear of ice. • or alternative procedures and training the icing conditions. Report these weather conditions to Air are adopted, that AD currently prohibits —Unusually extensive ice accreted on the Traffic Control.’’ operation of the airplane in certain icing airframe in areas not normally observed to (b) Incorporating the AFM revisions, as conditions, and requires restrictions on collect ice. required by this AD, may be performed by the use of the autopilot in certain —Accumulation of ice on the lower surface the owner/operator holding at least a private conditions. That AD was prompted by of the wing aft of the protected area. pilot certificate as authorized by section 43.7 —Accumulation of ice on the propeller an FAA determination that, during of the Federal Aviation Regulations (14 CFR spinner farther aft than normally observed. 43.7), and must be entered into the aircraft flight, in certain icing conditions, and • Since the autopilot may mask tactile records showing compliance with this AD in with the airplane in a specific flight cues that indicate adverse changes in configuration, a ridge of ice can form on handling characteristics, use of the autopilot accordance with section 43.11 of the Federal Aviation Regulations (14 CFR 43.11). the wing and cause an interruption in is prohibited when any of the visual cues the airflow over the ailerons, aileron specified above exist, or when unusual (c) Special flight permits may be issued in lateral trim requirements or autopilot trim accordance with sections 21.197 and 21.199 deflection, and resultant lateral control warnings are encountered while the airplane of the Federal Aviation Regulations (14 CFR forces. The actions specified by that AD is in icing conditions. 21.197 and 21.199) to operate the airplane to are intended to prevent a roll upset from • All icing detection lights must be a location where the requirements of this AD which the flight crew may be unable to operative prior to flight into icing conditions can be accomplished. recover. This action adds requirements at night. [NOTE: This supersedes any relief (d) An alternative method of compliance or for modification of the deicing boots on provided by the Master Minimum Equipment the leading edge of the wing and various List (MMEL).]’’ adjustment of the compliance time that (2) Revise the FAA-approved AFM by provides an acceptable level of safety may be follow-on actions. This action also incorporating the following into the used if approved by the Manager, Small removes certain limitations and Procedures Section of the AFM. This may be Airplane Directorate, FAA, 1201 Walnut, procedures. accomplished by inserting a copy of this AD suite 900, Kansas City, Missouri 64106. The DATES: Effective June 11, 1996. in the AFM. request shall be forwarded through an The incorporation by reference of ‘‘THE FOLLOWING WEATHER appropriate FAA Maintenance Inspector, certain publications, as listed in the CONDITIONS MAY BE CONDUCIVE TO who may add comments and then send it to regulations, is approved by the Director SEVERE IN-FLIGHT ICING: the Manager, Small Airplane Directorate. of the Federal Register as of June 11, • Visible rain at temperatures below 0 Note 3: Information concerning the 1996. degrees Celsius ambient air temperature. existence of approved alternative methods of The incorporation by reference of • Droplets that splash or splatter on impact compliance with this AD, if any, may be Aerospatiale Service Bulletin ATR72– at temperatures below 0 degrees Celsius obtained from the Small Airplane 27–1039, dated January 12, 1995, listed ambient air temperature. Directorate. in the regulations was approved PROCEDURES FOR EXITING THE SEVERE (e) All persons affected by this directive previously by the Director of the Federal ICING ENVIRONMENT: may examine information related to this AD Register as of March 8, 1995 (60 FR These procedures are applicable to all at the FAA, Central Region, Office of the 9616, February 21, 1995). flight phases from takeoff to landing. Monitor Assistant Chief Counsel, Room 1558, 601 E. ADDRESSES: The service information the ambient air temperature. While severe 12th Street, Kansas City, Missouri 64106. referenced in this AD may be obtained icing may form at temperatures as cold as (f) This amendment (39–9593) becomes from Aerospatiale, 316 Route de ¥18 degrees Celsius, increased vigilance is effective on June 11, 1996. Bayonne, 31060 Toulouse, Cedex 03, warranted at temperatures around freezing France. This information may be with visible moisture present. If the visual Issued in Kansas City, Missouri, on April cues specified in the Limitations Section of 24, 1996. examined at the Federal Aviation Administration (FAA), Transport the AFM for identifying severe icing Henry A. Armstrong, conditions are observed, accomplish the Airplane Directorate, Rules Docket, following: Acting Manager, Small Airplane Directorate, 1601 Lind Avenue, SW., Renton, • Immediately request priority handling Aircraft Certification Service. Washington; or at the Office of the from Air Traffic Control to facilitate a route [FR Doc. 96–10727 Filed 5–1–96; 3:25 pm] Federal Register, 800 North Capitol or an altitude change to exit the severe icing BILLING CODE 4910±13±P Street, NW., suite 700, Washington, DC. conditions in order to avoid extended exposure to flight conditions more severe FOR FURTHER INFORMATION CONTACT: Gary than those for which the airplane has been Lium, Aerospace Engineer, certificated. Standardization Branch, ANM–113, Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20647

FAA, Transport Airplane Directorate, operation of the airplane in certain icing making of this amendment. Due 1601 Lind Avenue, SW., Renton, conditions unless modifications are consideration has been given to the Washington 98055–4056; telephone accomplished or alternatives procedures comments received. (206) 227–1112; fax (206) 227–1149. and training are adopted, and to require In addition to the proposed rule SUPPLEMENTARY INFORMATION: A restrictions on the use of the autopilot described previously, in January 1996, in certain conditions. The action also proposal to amend part 39 of the Federal the FAA issued 17 other similar Aviation Regulations (14 CFR part 39) proposed to add requirements for proposals that address the subject by superseding AD 95–02–51, modification of the deicing boots on the unsafe condition on various airplane amendment 39–9152 (60 FR 9616, leading edge of the wing and various models (see below for a listing of all 18 February 21, 1995), which is applicable follow-on actions. In addition, the to all Aerospatiale Model ATR–42 and action proposed to remove certain proposed rules). These 17 proposals also ATR–72 series airplanes, was published limitations and procedures. were published in the Federal Register on January 25, 1996. This final rule as a supplemental notice of proposed Disposition of Comments rulemaking (NPRM) in the Federal contains the FAA’s responses to all Register on January 25, 1996 (61 FR Interested persons have been afforded public comments received for each of 2147). The action proposed to prohibit an opportunity to participate in the these proposed rules.

FEDERAL REGISTER Docket No. Manufacturer/airplane model citation

96±CE±01±AD de Havilland DHC±6 Series ...... 61 FR 2175 96±CE±02±AD EMBRAER EMB±110P1/EMB±110P2 ...... 61 FR 2183 96±CE±03±AD Beech 99/200/1900 Series ...... 61 FR 2180 96±CE±04±AD Dornier 228 Series ...... 61 FR 2172 96±CE±05±AD Cessna 208/208B ...... 61 FR 2178 96±CE±06±AD Fairchild Aircraft SA226/SA227 Series ...... 61 FR 2189 96±CE±07±AD Jetstream 3101/3201 ...... 61 FR 2186 96±NM±13±AD Jetstream BAe ATP ...... 61 FR 2144 96±NM±14±AD Jetstream 4101 ...... 61 FR 2142 96±NM±15±AD British Aerospace HS 748 Series ...... 61 FR 2139 96±NM±16±AD Saab SF340A/SAAB 340B/SAAB 2000 Series ...... 61 FR 2169 96±NM±17±AD CASA C±212/CN±235 Series ...... 61 FR 2166 96±NM±18±AD Dornier 328±100 Series ...... 61 FR 2157 96±NM±19±AD EMBRAER EMB±120 Series ...... 61 FR 2163 96±NM±20±AD de Havilland DHC±7/DHC±8 Series ...... 61 FR 2154 96±NM±21±AD Fokker F27 Mark 100/200/300/400/500/600/700/050 Series ...... 61 FR 2160 96±NM±22±AD Short Brothers SD3±30/SD3±60/SD3±SHERPA Series ...... 61 FR 2151 95±NM±146±AD Aerospatiale ATR±42/ATR±72 Series ...... 61 FR 2147

Comment 1. Support for the Proposals crew should be restricted to hazardous The European Regional Airlines Numerous commenters support the conditions that are defined by the (ERA) Association states that the FAA’s intent to minimize the potential accumulation of ice. The commenter proposals define visual cues to be used hazards associated with operating states that the term ‘‘severe icing’’ has to identify ‘‘freezing rain’’ and ‘‘freezing airplanes of any type design in severe a specific meaning as defined in the drizzle,’’ but these criteria are icing conditions. One commenter states Aeronautical Information Manual: ‘‘The inconsistent with the criteria defined by that the limitation prohibiting the use of rate of accumulation is such that the the International Civil Aviation flaps while enroute and during holding icing/anti-icing equipment fails to Organization (ICAO) and used by in icing conditions will be a positive reduce or control the hazard. Immediate weather observers in aviation contribution to safety. Additionally, diversion is necessary.’’ The commenter meteorological support services. The several commenters support the states that, although freezing rain or FAA infers from this remark that ERA requirement of the proposed AD for freezing drizzle may involve drops requests the use of ICAO terminology Aerospatiale airplanes for installation of larger than those specified in Appendix associated with the visual cues. modified deicing boots on the outer C of part 25 (‘‘Airworthiness Standards: The FAA concurs partially. The FAA leading edges of the wings. One of these Transport Category Airplanes’’) of the concurs that most of the references to commenters states that the Federal Aviation Regulations (14 CFR ‘‘freezing rain/freezing drizzle’’ can be incorporation of AFM procedures, in part 25), flight into those conditions removed from the final rules. The FAA addition to installation of the modified does not always result in accumulation has revised the final rules to replace boots, provide a substantial margin of of ice beyond the capability of the certain references to freezing rain and safety for the Aerospatiale fleet. aircraft nor is severe icing always the freezing drizzle with the words ‘‘severe result of freezing rain or freezing icing.’’ The FAA finds that since the Comment 2. Requests Concerning drizzle. Raytheon concludes that the visual cues contained in paragraph References to ‘‘Freezing Rain/Freezing limitation specified in paragraph (a)(1) (a)(1) of these final rules indicate that Drizzle’’ of the proposals which reads, ‘‘Flight in icing conditions have exceeded the Raytheon requests that references to a meteorological conditions described as limits of the ice protection equipment, class of meteorological conditions in the freezing rain or freezing drizzle, as the use of the terminology ‘‘severe limitations described as ‘‘freezing rain determined by the following visual icing’’ is appropriate. As stated by one or freezing drizzle’’ should be removed cues, is prohibited,’’ is an inference or commenter, ‘‘severe icing’’ is from the proposed rules. Raytheon conclusion that does not follow from the terminology used to describe icing contends that instructions for the flight premises. conditions that exceed the capabilities 20648 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations of the ice protection equipment. The common interpretation of ‘‘severe prevent affected airplanes from flight in terminology ‘‘severe icing’’ is commonly icing,’’ as described by the commenter. forecast freezing rain and freezing used and understood within the The FAA notes that while SLD drizzle. This is not the case. The FAA aviation community. Additionally, there conditions may result in the formation agrees that certain language contained should be no confusion over the use of of severe icing, severe icing also may in the AD’s must be clarified to reflect this term in the final rules because the accrue in conditions such as liquid its intent. The FAA has evaluated the AFM revisions required by these AD’s water content, temperature, or extent of wording proposed by one of the define the terminology ‘‘severe icing’’ by cloud, when those conditions exceed commenters and agrees with it in specifying the visual cues that indicate the limits specified in Appendix C of principal. However, the FAA has when the capabilities of the ice part 25 of the Federal Aviation determined that the first limitation in protection equipment have been Regulations (14 CFR part 25). As paragraph (a)(1) of the final rules must exceeded. However, the FAA would explained previously, most references to be revised in order to accommodate consider a request for approval of an freezing rain and freezing drizzle have visual cues other than that specified by alternative method of compliance to use been replaced with the terminology the commenter, to incorporate terminology other than ‘‘severe icing’’ in ‘‘severe icing.’’ Additionally, the AFM’s terminology familiar to the flight crew, an AFM, in accordance with the for the affected airplanes include a and to emphasize that these AD’s provisions of these AD’s, provided that definition of severe icing. address only in-flight icing encounters. adequate justification is presented to Comment 4. Request To Withdraw the Additionally, in order to ensure that support such a request. appropriate coordination with Air Any inconsistencies that may exist Proposals: Significant Economic Impact on Operating Community Traffic Control is accomplished, the between the criteria used by weather FAA has revised the instruction specialists to define ‘‘severe icing’’ and A number of commenters request that following the visual cues in paragraph the criteria stated in these final rules are the proposals be withdrawn because the (a)(1), and has moved that instruction to not relevant for these AD’s because effect of these proposed AD’s will the end of the first limitation in these AD’s do not require the flight crew produce a significant economic impact paragraph (a)(1) of the final rules. The to take any action based on information on the operating community. The entire limitation reads as follows: provided by a weather observer. For commenters indicate that many flights ‘‘During flight, severe icing conditions these AD’s, the flight crew must only would need to be canceled in order to that exceed those for which the airplane take action if certain visual cues are make all reasonable efforts to avoid is certificated shall be determined by encounters with freezing rain/freezing present on the airplane. the following visual cues. If one or more drizzle conditions—i.e., when these The FAA has determined that of these visual cues exists, immediately conditions are forecast, airplanes will be reference to freezing rain and freezing request priority handling from Air drizzle should not be removed from the prohibited from flight into those Traffic Control to facilitate a route or an text of the ‘‘Caution’’ that appears in conditions. One commenter remarks altitude change to exit the icing paragraph (a)(2) of the proposals. [Note: that, based on the actual weather in conditions.’’ (Operators should note The ‘‘Caution’’ appears as the January 1996, nearly 75 percent of its that, in the final rule for Aerospatiale ‘‘Warning’’ in paragraph (a)(1) of the scheduled flights would have been airplanes, only one visual cue is final rules. An explanation of this canceled due to forecast or actual specified. That cue involves ice on the change is contained in the disposition of freezing rain or freezing drizzle side window of the airplane.) Comment 49 of these final rules.] conditions if the AD’s had been in Reference to freezing rain and freezing effect. The commenters do not believe Several commenters question certain drizzle in that portion of text is made that the FAA has considered the issues related to dispatch of the airplane simply to provide a description of economic factors affected by the in severe icing conditions. One conditions that may result in ice build- proposed actions, such as the number of commenter states that the procedures up that exceeds the capabilities of the flights lost per day, crew costs, specified in the proposed AD’s fail to ice protection system. passenger compensation, misconnected address the conditions that would baggage, etc. prohibit takeoff in freezing rain and Comment 3. Request for Review of If the FAA does not withdraw the freezing drizzle. The commenter ‘‘Severe Icing’’ Terminology proposals, one commenter states that believes the visual cues provided in the One commenter, the Civil Aviation the prohibition of flight in freezing rain proposals would only appear on an Authority (CAA), which is the or freezing drizzle, as specified in airplane during flight. Thus, allowable airworthiness authority for the United paragraph (a)(1) of the proposals, should conditions for takeoff during times of Kingdom, requests that use of the be revised. The commenter suggests the forecast freezing rain or freezing drizzle terminology ‘‘severe icing’’ be reviewed. following: ‘‘The aircraft should be are left to the individual operator’s The CAA does not believe it is immediately flown clear of icing interpretation. Another commenter appropriate that this terminology conditions if ice is seen forming on the believes that the FAA has not becomes accepted for supercooled large upper surface of the wing behind the established a basis for prohibiting flight droplet (SLD) conditions. The CAA leading edge deice boots.’’ The in all reported freezing drizzle. The indicates that a common interpretation commenter believes that the current commenter contends that takeoff in for ‘‘severe icing’’ is that beyond the wording in the proposals would cause freezing rain should always be limit specified in Appendix C of part 25 flight crews to cancel or delay departure prevented, but takeoff in freezing drizzle of the Federal Aviation Regulations (14 not only when freezing rain or freezing should be possible after applying CFR part 25), which is at or just over the drizzle exists, but also when those appropriate deicing or anti-icing capability of the ice protection system. conditions are forecast. treatments. One commenter requests The FAA has reviewed the use of the The FAA concurs partially. The FAA that the FAA clarify how the procedures terminology ‘‘severe icing’’ as related to finds that some misunderstanding exists for exiting freezing rain/freezing drizzle SLD. The FAA finds that ice resulting among the commenters concerning the conditions would apply to takeoff and from SLD conditions may not always intent of these AD’s. Many of the landing. The commenter states that meet the criterion specified in the commenters believe that the AD’s will landing during those conditions might, Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20649 in many cases, be the most expeditious holding pattern decide on his/her not certificated, there is a potential for method of avoiding a hazardous own to immediately descend below an unsafe condition to exist or develop condition. Another commenter suggests the freezing level without regard to and the flight crew must take steps to that the AFM for Aerospatiale airplanes other traffic? exit those conditions expeditiously. should be revised to reflect standard One commenter states that the note Further, the FAA has determined that dispatch rules; however, the commenter should be placed in the Normal flight crews are not currently provided provides no justification for this request. Procedures Section of the AFM, rather with adequate information necessary to The FAA concurs that visual cues that than in the Limitations Section. The determine when an airplane is operating would prohibit takeoff in freezing rain commenter provides no justification for in icing conditions for which it is not or freezing drizzle were not provided this request. certificated or what action to take when because the FAA’s intent is that these The FAA concurs that clarification of such conditions are encountered. The AD’s address only in-flight icing this note is necessary. The FAA absence of this information presents an encounters. These AD’s do not affect originally included the note in the AD’s unsafe condition because without that any existing regulations or FAA- to clarify the intent of the rules. Since information, a pilot may remain in icing approved operating procedures related the first instruction and the limitation conditions for which the airplane has to takeoff, dispatch, or release of an that follows have been revised in these not been proven to be safe. These AD’s airplane in icing conditions. These AD’s final rules, the FAA finds that inclusion correct the unsafe condition by only prohibit remaining in icing of the clarifying note is no longer requiring AFM revisions that provide conditions when certain visual cues are necessary. In order to avoid any possible the flight crews with visual cues to present on the airplane; these AD’s do misinterpretation of the intent of the determine when icing conditions have not prohibit flight into forecast or limitation on flight in freezing rain or been encountered for which the airplane reported freezing drizzle. Operators freezing drizzle, the FAA has removed is not certificated, and by providing must comply with existing rules that the first note that appeared in paragraph procedures to safely exit those require an airplane to be free of ice prior (a)(1) of the proposals. These AD’s do conditions. to takeoff. Further, the FAA finds no not prohibit flight into forecast or Additionally, in the preamble to the need to revise the AFM for Aerospatiale reported freezing rain or freezing proposed rules, the FAA discussed the airplanes to reflect standard dispatch drizzle. This means that the aircraft is investigation of roll control anomalies to rules. The FAA also considers that not prohibited from takeoff, dispatch, or explain that this investigation was not a landing the airplane when freezing rain/ release simply because the forecast may complete certification program. The freezing drizzle conditions are indicate freezing rain or freezing drizzle, testing was designed to examine only encountered would, in many cases, be but is prohibited from continued flight the roll handling characteristics of the the most expeditious method of exiting in severe icing conditions. airplane in certain droplets the size of freezing drizzle. The testing was not a the conditions. Such landing would be Comment 5. Request To Withdraw the in compliance with the limitation that certification test to approve the airplane Proposals: No Unsafe Condition Has for flight into freezing drizzle. The requires the flight crew to exit the Been Established severe icing conditions. results of the tests were not used to Several commenters request that the Two commenters indicate that the determine if these final rules were proposals be withdrawn because no first note that appears in paragraph required, but rather to determine if unsafe condition has been established design changes were needed to prevent (a)(1) of the proposed rules could be with respect to airplane handling a catastrophic roll upset. The roll interpreted to mean that if freezing rain characteristics in severe icing control testing and the AD’s must be or freezing drizzle is forecast anywhere conditions. One commenter states that viewed as two unrelated actions. along the route of flight, the airplane the preamble of the proposals does not could not be dispatched. One of the Comment 6. Request To Withdraw the provide data that establish an unsafe Proposals: Unsafe Condition is Outside commenters concludes that forecasting condition; the preamble only indicates Certification Limits methodologies are inadequate and that there are inadequate data to would need to be improved. The other represent all possible conditions. One commenter states that the commenter suggests that the FAA Another commenter remarks that the proposed AD’s should be withdrawn remove the word ‘‘purely’’ from the FAA’s dismissal of the significance of because the issuance of AD’s to address note. The same commenter requests that the test results with the specious the problems of icing encounters the FAA clarify that the airplane may be comment, ‘‘such airplanes could outside of the limits for which the dispatched if the forecast may indicate develop ice shapes other than those airplane is certificated is a completely freezing rain/freezing drizzle tested,’’ is wholly speculative, and is an inappropriate application of part 39 of conditions. Another commenter invalid basis on which to issue an AD the Federal Aviation Regulations (14 indicates that the wording of the same under the provisions of part 39 CFR part 39). Another commenter note is unclear as to how the FAA (‘‘Airworthiness Directives’’) of the contends that since the Aerospatiale defines a ‘‘purely’’ inadvertent Federal Aviation Regulations (14 CFR aircraft passed all present certification encounter. The commenter states that part 39). testing, what transpired beyond the examples of such purely inadvertent The FAA does not concur that these limits of certification should not be held encounters would be helpful. AD’s should be withdrawn. As stated in against that aircraft. One commenter asks the following the preamble to the proposals, the FAA The FAA does not concur that the questions in regard to the same note: has not required that airplanes be AD’s should be withdrawn on the basis —What are ‘‘reasonable efforts?’’ shown to be capable of operating safely that the unsafe condition is outside the —What does ‘‘immediately exit’’ mean? in icing conditions outside the icing icing certification envelope. Flight in Are the procedures for immediately certification envelope specified in icing conditions that are outside the exiting listed in the Air Traffic Appendix C of part 25 of the Federal icing certification envelope occurs Controller’s Handbook or the Aviation Regulations (14 CFR part 25). during the normal service life of an Airman’s Information Manual? Can a This means that any time an airplane is airplane. Apart from the visual cues pilot operating the airplane in a flown in icing conditions for which it is provided in these final rules, there is no 20650 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations existing method provided to the flight have the same effect on a jet, since both Federal Aviation Regulations (14 CFR crews to identify when the airplane is are certificated under the same rules part 25); and in a condition that exceeds the icing with regard to flight into adverse —The flight crew of an airplane having certification envelope. The appropriate weather, and both fly at about the same an unpowered roll control system vehicle for providing this method of speeds during the departure and arrival must rely solely on physical strength identification is through issuance of an phases of flight. Additionally, another to counteract roll control anomalies, AD. The FAA acknowledges that the commenter adds that no airplane, whereas a roll control anomaly that Aerospatiale airplane has been shown to whether it is powered by a occurs on an airplane having a comply with existing certification rules; turbopropeller, turbojet, or turbofan powered roll control system need not however, no airplane is certificated for engine, is certificated for operation in be offset directly by the flight crew. flight in icing conditions outside of SLD conditions. Since the issuance of the proposed Appendix C of part 25 of the Federal Another commenter indicates that rules, the FAA has reconsidered this Aviation Regulations (14 CFR part 25). icing encounters take place at altitudes reasoning. The FAA acknowledges that Comment 7. Request To Withdraw the below the cruising altitudes of most simply because an airplane is Proposals: Proposals Unfairly turbopropeller-powered aircraft used in turbopropeller-powered and has a Discriminate Against Turbopropeller- scheduled service; this also occurs on particular flight profile, that airplane Powered Aircraft airplanes powered by turbojet engines. should not be addressed as a higher Icing encounters occur during takeoff, priority. However, this does not Several commenters state that the climb, descent, holding, and landing diminish the significance of the proposed AD’s should be withdrawn phases of flight on both types of aircraft. necessity of the flight crew of an because the AD’s unfairly discriminate The commenter adds that operating the airplane having an unpowered roll against turbopropeller-powered aircraft. airplane in a holding pattern for a control system to rely on physical The commenters contend that by issuing prolonged period in severe icing strength to counteract roll control these proposed rules, the FAA is conditions is hazardous for both turbojet anomalies. The subject airplanes all creating a public perception that and turbopropeller-powered aircraft. have pneumatic deicing boots and turbopropeller-powered aircraft are less The commenter explains that, although unpowered aileron controls, which have safe than other aircraft. the exposure time per flight hour of a been common denominators in the Numerous commenters oppose the long-haul jet aircraft is less, the accident and incident history statement contained in the preamble of exposure on a per flight basis is exactly concerning flight in icing conditions the proposals which indicates that since the same. The commenter states that, and, in particular, during conditions turbopropeller-powered airplanes are like landing gear life limits, the proper when SLD was believed to be present. more likely to operate at low altitudes measure of exposure to freezing rain/ Therefore, airplanes having those design and to make more frequent landings, freezing drizzle should be the number of features are of immediate concern to the they are more likely to encounter icing flights, not the number of flight hours. FAA and were addressed as a higher conditions that are outside the icing Another commenter, Saab, states that priority. Additionally, these AD’s envelope. One commenter states that the primarily address airplanes used in mere fact that turbopropeller-powered Saab Model SAAB 2000 series airplanes have a unique power-to-weight ratio, regularly scheduled passenger service in airplanes make more frequent landings the United States. is irrelevant for the following reasons: which makes it comparable with airplanes of the same size and, in some The FAA finds that the comment —Every flight encounters the same relevant areas such as climb indicating that more frequent landings atmospheric conditions after takeoff performance and single engine ceiling, provides more opportunity to verify that and prior to landing, whether the even far superior. Operators of those ice has not formed is irrelevant. It also airplane is powered by a airplanes can operate the aircraft over- could be said that more frequent turbopropeller or turbojet engine; the-weather at flight level (FL) 310. This landings gives more opportunity for ice —There are numerous airplanes means that these Saab airplanes operate to form. The FAA agrees with the powered by turbojet engines that on jet profiles and, therefore, are not statement that holding for prolonged operate on segments equal in duration exposed to the icing conditions that are periods in severe icing conditions is to those operated by many outside the icing envelope any more hazardous for all aircraft types. The turbopropeller-powered aircraft; than the airplanes that are excluded FAA is considering initiating an numerous airplanes powered by from the proposals. assessment of the need to prohibit all turbojet engines make just as frequent aircraft from continued flight in severe landings; and The FAA does not concur that the icing conditions as defined in these —Even if turbopropeller-powered proposals should be withdrawn. The AD’s. aircraft do make more frequent FAA does not intend to imply through Although Transport Canada Aviation landings, there is no negative issuance of these AD’s that does not request that the proposed AD’s inference to be drawn from that fact; turbopropeller-powered airplanes are be withdrawn, the commenter indicates more opportunities are available to less safe than airplanes having other that roll control anomalies could exist ensure that ice has not formed on the types of propulsion systems. As stated for all aircraft whether they have aircraft if the aircraft lands more in the preamble of the proposals, the powered or unpowered roll control frequently. FAA addressed certain airplanes as a systems. Transport Canada Aviation higher priority for two reasons: One commenter states that the adds that some jet-powered aircraft have altitudes where SLD conditions exist are —Turbopropeller-powered airplanes are unpowered ailerons. the same altitudes at which jets would more likely to operate at low altitudes The FAA concurs that roll anomalies encounter those conditions during the and to make more frequent landings; could exist for all aircraft whether they departure and arrival phases of flight. therefore, they are more likely to have powered or unpowered roll control Flight in SLD conditions that would encounter icing conditions that are systems. However, these AD’s address have a negative effect on a outside the icing envelope specified airplanes having both deicing boots and turbopropeller-powered airplane would in Appendix C of part 25 of the unpowered aileron controls. The FAA Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20651 acknowledges that other airplanes that experience of the Vickers Viking aircraft phrase be reworded as follows: ‘‘Since have powered ailerons may be subject to in 1946. an unsafe condition has been identified roll problems in severe icing conditions • Beech Model 200 and 200C where aircraft icing certification is not due to loss of lift. However, the FAA is airplanes: Raytheon states that these adequate to address the conditions that not aware of a mechanism that would particular airplane models are not are outside of Appendix C of FAR part allow ice to produce an uncommanded normally considered to be commuter 25 . . . .’’ control deflection on airplanes having aircraft, and that issuance of an AD The FAA does not concur with Saab’s powered flight control systems. In would be contrary to the stated purpose addition, airplanes having powered roll of the proposals because most of these request. The FAA acknowledges that control systems do not have direct airplanes are used in non-revenue there have been no reported problems feedback of aerodynamic forces to the service. Raytheon states that these involving severe icing conditions on pilot. However, the FAA is considering airplanes are all low wing aircraft. Saab airplanes. However, Saab Model initiating an assessment of the need to Aerospatiale Model ATR–72 series SF340A and SAAB 340B series apply similar limitations to other airplanes (the accident airplane) is 50 airplanes have pneumatic deicing boots aircraft types. percent larger and carries over twice the and unpowered aileron controls, which number of passengers as these Beech have been determined to be the common Comment 8. Request To Withdraw the aircraft. For these reasons, as well as denominators among the airplanes Proposals: Affected Airplanes Are Not other differences in the geometry of the involved in accidents and incidents in Same Type Design as Accident Airplane airplanes (i.e., relative aileron span), severe icing conditions. Therefore, the Several commenters contend that the Raytheon states that the supposition of FAA has determined that when severe proposals should be withdrawn because an icing hazard in these aircraft is icing conditions are encountered on the FAA has not established clearly that purely speculative. these Saab airplanes, those conditions the airplanes addressed in the proposed The FAA does not concur that any of must be exited. rules have the same type design as the the addressed airplanes should be Aerospatiale Model ATR–72 series exempt from these AD’s. The FAA has Although the FAA has no technical airplane that was involved in an examined the accident and incident objection to the revised wording accident in October 1994 that occurred history in icing conditions and, in proposed by Transport Canada Aviation, in severe icing conditions. particular, those events believed to this sentence does not reappear in the One commenter questions the words involve SLD conditions. Results of this final rules. Therefore, no change to the ‘‘same type design,’’ and asks if those examination revealed that the type final rule is necessary. words refer to high wing, low wing, T- design characteristics that appear to be Comment 9. Request for Explanation of tail, or aircraft of another type design. common in these events are pneumatic the Applicability of the AD’s Three commenters provide deicing boots and unpowered aileron justification in support of a request that controls. Airplanes having those type One commenter requests an certain airplanes be exempt from these design characteristics appear to be more explanation of the methodology used by AD’s: susceptible to control problems in the FAA to determine that AD’s should • de Havilland Model DHC–7 and severe icing conditions. In response to not be issued for Cessna and Piper DHC–8 series airplanes: De Havilland Fokker’s remark that its airplanes will multi-engine aircraft. The commenter states that the airplanes it manufactures not experience roll control problems share a conservative aerodynamic also asks if an AD similar to the since those airplanes do not have proposed rules exists for Boeing Model design philosophy that yields unshielded horn balances, the FAA has 737 series airplanes. The commenter exceptional low-speed handling determined that horn balances on the indicates that Model 737 series qualities and demonstrated benign accident airplane were not the source of handling qualities in icing conditions. the uncommanded aileron motion. airplanes have demonstrated abnormal De Havilland adds that two-thirds of the Design similarities of the wing, tail, or and unexplained roll tendencies. roll control authority of these airplanes ailerons do not appear to be a common The FAA provides the following is provided by hydraulically powered denominator among airplanes involved clarification for this commenter. No roll spoilers. A second commenter adds in accidents or incidents where SLD AD’s have been issued for Piper that increased testing has been conditions may have been present. airplanes or Boeing Model 737 series conducted on these airplanes. Saab asks for removal of the sentence airplanes. However, as reflected in the • Fokker F27 Mark 100, 200, 300, that reads, ‘‘Since an unsafe condition table above, the FAA has issued an AD 400, 500, 600, 700, and 050 series has been identified that is likely to exist for Cessna Model 208 and 208B airplanes: Fokker states that the leading or develop on other airplanes of the airplanes. edge boots on Fokker Model F27 series same type design . * * *’’ Saab states airplanes and Model F27 Mark 050 that this sentence implies that Saab Most of the aircraft affected by these series airplanes extend to a chord wise Model SF340A and SAAB 340B series final rules are used primarily in position, 12.5 percent wing chord, airplanes have a problem and that this regularly scheduled passenger service in which precludes all but the very largest problem is ‘‘likely to develop on other the United States. However, there are droplets impinging on the unprotected airplanes of the same type design.’’ Yet, some airplanes affected by the final surfaces. Fokker adds that since the there have been no reported problems rules that are not used in regularly accident airplane has unshielded horn on those airplanes, which are not of the scheduled passenger service. Two of balances and the affected Fokker same type design as all other these are Cessna Model 208 and 208B airplanes do not have these unshielded turbopropeller-powered airplanes. airplanes. Those airplanes were horn balances, Fokker airplanes will not Transport Canada Aviation does not included in the final rules because of experience roll upset problems. Fokker request that the proposals be their accident and incident history in indicates that aerodynamically withdrawn; however, the commenter icing conditions. The FAA is balancing the control surfaces by means requests that the FAA revise the same considering an assessment of the need of unshielded horn balances was not phrase discussed by Saab. Transport to prohibit all aircraft from continued applied because of the bad service Canada Aviation requests that the flight in severe icing conditions. 20652 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

Comment 10. Request To Withdraw the wing boots has ever been reported on The FAA does not concur. The FAA Proposals: Service Experience of Saab Model SF340A, SAAB 340B, or finds that successful completion of the Affected Airplanes is Satisfactory SAAB 2000 series airplanes. roll upset evaluation is not a valid Several commenters indicate that the Additionally, the leading edge on these reason for withdrawing the AD’s. On the FAA should withdraw the proposed airplanes can be inspected easily during contrary, if the evaluation had AD’s in light of the satisfactory service flight. demonstrated anomalies, the FAA may • Saab remarks that no roll anomaly experience of the airplanes addressed in have concluded that action beyond that problems in icing conditions have required by these AD’s was necessary to the proposals. The commenters believe occurred during the extensive service address the demonstrated unsafe that the FAA is singling out experience of Saab Model SF340A and condition. The testing was designed to turbopropeller-powered aircraft without SAAB 340B series airplanes. examine only the roll handling any regard for the operational record of • The FAA does not concur that the characteristics of the airplane in certain those aircraft. AD’s should be withdrawn. The fact that droplets the size of freezing drizzle to Several commenters provide an airplane has a perfect safety record determine if any design changes are justification in support of this request: in icing does not negate the fact that no necessary to prevent catastrophic • One commenter states that de airplane has been certificated for flight control surface deflection. The testing Havilland airplanes have been into SLD. The FAA has determined that was not a certification test to approve successfully operated for over 30 years a need exists to provide the flight crew the airplane for flight into freezing without one instance of roll upset or with useful safety-related information drizzle since many of the components flight control problems. regarding the limitations of the airplane and their functions were not tested (e.g., • De Havilland indicates that de concerning flight in severe icing pitch control, engine and propeller, Havilland Model DHC–8 series conditions. The purpose of issuing these performance, stall warning, windshield, airplanes have been in service for 11 final rules is to provide the flight crew air data sensors and fuel system vents). years and have accumulated 6 million with such information. Further, freezing rain was not tested. flights and 5 million flight hours One commenter, Transport Canada Satisfactory demonstration of those tests without any incidents due to icing. Aviation, requests that the proposals • does not remove the FAA’s De Havilland adds that de apply only to those airplanes that have responsibility to provide a safe Havilland Model DHC–7 series a demonstrated history of in-service operating environment for the airplanes have been in service for 18 problems as a priority. The commenter passengers and crew. years and have accumulated 3.7 million states that the hazards relating to JAL comments that its airplanes are flights and 2.7 million flight hours operation in icing conditions exist for not subject to the addressed unsafe without any incidents due to icing. all types of aircraft. (The commenter • condition, and that the FAA had Another commenter has not does not request that the proposed rules concurred with this contention. JAL experienced any icing related upsets or be withdrawn.) states that the FAA agreed that, by the control irregularities in its fleet of de The FAA does not concur with this controllability evaluation process, all Havilland Model DHC–8 series request. As explained previously, the Jetstream aircraft types had been airplanes and Beech Model 1900 series FAA has issued AD’s for airplanes demonstrated to be not susceptible to airplanes. having pneumatic deicing boots and roll control anomalies in freezing rain or • One commenter operates 21 Beech unpowered aileron controls as a freezing drizzle conditions. Model 1900D airplanes, 32 EMBRAER priority. Airplanes having these design The FAA does not concur with JAL’s Model EMB–120 series airplanes, and features are of immediate concern to the position concerning its airplanes. All 41 Aerospatiale Model ATR–42 and FAA because these features have been Jetstream airplanes affected by these ATR–72 series airplanes; none of these common denominators in the accident AD’s successfully completed the roll airplanes have experienced any icing and incident history concerning flight in upset evaluation. However, as stated incidents this season. icing conditions and, in particular, previously, no airplanes were tested in • One commenter indicates that during conditions when SLD was freezing rain conditions. The roll upset airplanes produced by Beech, believed to be present. The FAA is evaluation only addressed conditions EMBRAER, and Jetstream Aircraft considering the need for rulemaking to that were believed to have existed Limited (JAL) have no record of impose similar limitations on other during an accident involving a transport uncommanded roll due to asymmetrical aircraft. category airplane that occurred in build-up of ice on surfaces beyond the October 1994. Therefore, since no Comment 11. Request To Withdraw the deicing boots. airplane has been tested in all freezing Proposals: Extensive Testing Revealed • One commenter notes that it has not rain and freezing drizzle conditions, no No Icing Problems experienced any unusual icing airplane has been demonstrated to be characteristics on its fleet of EMBRAER Several commenters request that the safe for continued flight in these Model EMB–120 series airplanes and proposals be withdrawn because conditions. Aerospatiale Model ATR–72 series extensive testing revealed no icing airplanes. problems on many different Comment 12. Request To Withdraw the • Fairchild notes that in over 26 years turbopropeller-powered airplanes, even Proposals: Publish Advisory Materials and 15,000,000 flight hours in passenger though those tests likely exceeded any and Require Training service, there has never been a reported icing certification tests ever performed Several commenters request that, in incident where the controllability of on other civil aircraft types, including lieu of issuing the proposed rules, the Fairchild Aircraft SA226 and SA227 large jet-powered transport category FAA publish appropriate advisory series airplanes were in jeopardy as a airplanes. Fokker states that Fokker materials and require training for result of any icing encounters (including Model F27 series airplanes do not recognition, avoidance, and exit from SLD icing encounters). demonstrate unacceptable roll control severe icing encounters as part of the • The Luftfartsverket (LFV), which is characteristics in severe icing required severe weather training for the airworthiness authority for Sweden, conditions; however, Fokker submits no pilots and dispatchers. Two commenters states that no ice build-up behind the data to substantiate this statement. suggest that the FAA include such Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20653 requirements in the operating rules in lieu of issuing these AD’s is commenter states that pilots must be specified in part 121 (‘‘Certification and appropriate. The FAA’s position is that made aware of the hazards of icing and Operations: Domestic, Flag, and the appropriate place to inform the that extended operation of an airplane Supplemental Air Carriers and flight crew of the limitations of the in any icing encounter that results in Commercial Operators of Large airplane is in the AFM. The appropriate significant airframe accretion of ice is Aircraft’’) of the Federal Aviation vehicle for mandating such AFM unacceptable. Regulations (14 CFR part 121). Another revisions is through issuance of an AD. The FAA does not concur that the commenter indicates that, since jets and In addition, an AD will ensure that the AD’s should be withdrawn based on the piston-engine aircraft also could incorporation of such AFM revisions is commenters’ request. The FAA develop ice shapes other than those not left to each operator’s individual acknowledges that these AD’s address tested, training should not be provided discretion and that flight crews receive an operational issue. When the only to pilots of turbopropeller-powered pertinent information. The FAA may requirements of these AD’s are airplanes, but to pilots of all aircraft. consider an assessment of the need to accomplished and the AFM limitations Some commenters also suggest that the provide training to pilots of all aircraft are revised, this material will be FAA has successfully addressed other types for flight in severe icing incorporated necessarily, as explained issues through increased awareness and conditions. previously, into the training curriculum training requirements, rather than by The commenters reference windshear for the flight crews and dispatchers, if issuing AD’s against every airplane type as an example of an issue that was applicable, in the operator’s approved design to require revising the handled successfully without issuance training program. In this manner, pilots Limitations Section of the AFM. The of an AD to revise the AFM’s. In this and dispatchers, if applicable, will be commenters cite windshear, ground case, the AFM’s for all airplanes having informed of the hazards of icing and deicing, and clear air turbulence as an onboard windshear system were that continued operation of an airplane examples of such issues. The revised to provide the flight crew with in certain icing conditions is prohibited. commenters contend that, except where procedures for responding when the configuration changes are needed, such system gives an alert. Although no AD Comment 14. Request To Withdraw the as in the case of windshear detection was issued to mandate these AFM Proposals: Require Training for Air devices, improved awareness and revisions, without revising the AFM, Traffic Controllers and Weather training programs—not AD’s—have operators could not comply with the Specialists been highly effective in achieving section of part 121 of the Federal Two commenters request that the Aviation Regulations (14 CFR part 121) needed safety improvements. FAA implement additional policy to The FAA does not concur. The FAA that requires installation of the require training for air traffic controllers considers that substituting advisory windshear detection devices. In and weather specialists in the material and mandatory training for conclusion, although AFM revisions recognition, avoidance, and procedures issuance of an AD is not appropriate, were not required by an AD, AFM to exit severe icing conditions. nor would this adequately address the changes were mandated indirectly by a unsafe condition. The FAA fully new part 121 regulation. The FAA does not concur that these supports the development of advisory The commenters also reference AD’s should be withdrawn. However, materials and training. Part 121 ground deicing. Part 91 (‘‘General the FAA acknowledges that (‘‘Certification and Operations: Operating and Flight Rules’’) of the implementation of these AD’s may Domestic, Flag, and Supplemental Air Federal Aviation Regulations (14 CFR necessitate additional training beyond Carriers and Commercial Operators of part 91) prohibits takeoff of an airplane that which is already required for air Large Aircraft’’) and part 135 (‘‘Air Taxi unless the airframe is clear of ice; traffic controllers and weather Operators and Commercial Operators’’) therefore, there is no need to provide specialists. The FAA may consider the of the Federal Aviation Regulations (14 additional limitations concerning the need to provide training concerning CFR parts 121 and 135) require that amount of ice that would be acceptable recognition, avoidance, and procedures appropriate training concerning for takeoff. However, in the case of for exiting severe icing conditions. limitations such as those contained in severe icing conditions addressed by However, the intent of these AD’s is to these AD’s be incorporated into air these final rules, the AFM’s currently provide the flight crew with recognition carriers’ training programs. However, allow flight in icing, but the AFM does cues for, and procedures for exiting the FAA’s position is that the not define when the limits of the from, severe icing conditions. The development and use of such advisory certificated icing operation envelope appropriate vehicle for requiring that materials and training alone are not have been exceeded. such information be included in the adequate to address the subject unsafe Concerning the issue of clear air AFM’s is through issuance of an AD. condition. Currently, the AFM’s specify turbulence, issuance of an AD was not Comment 15. Request To Withdraw the that the affected airplanes are required because an airspeed limitation Proposals: Add a Caution to the AFM certificated for flight in icing conditions; associated with turbulent air however, the AFM’s do not specify a penetration was already in the AFM’s. One commenter requests that, in lieu method of determining whether the Therefore, in this case, the issue was of issuing the proposed AD’s, a certification limits for those conditions addressed in the AFM as well as ‘‘Caution’’ should be added to the AFM have been exceeded. Consequently, the through awareness and training. to inform pilots to exit icing conditions FAA finds that these AFM’s must be if ice was observed to be forming aft of revised to provide limitations for flight Comment 13. Request To Withdraw the the protected surfaces of the wings. The in icing conditions and to provide the Proposals: Incorporate Operational commenter states that information flight crew with a method of Issues into a Training Curriculum regarding the use of flaps and the determining when those limitations Two commenters request that the autopilot in icing conditions could also have been exceeded. proposals be withdrawn because the be incorporated into the AFM. The The FAA does not concur that proposed AD’s address an operational commenter does not indicate which amending part 121 of the Federal issue that should be incorporated into section of the AFM should include this Aviation Regulations (14 CFR part 121) an operator’s training curriculum. One material. 20654 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

The FAA does not concur. The FAA (‘‘General Operating and Flight Rules’’) of such conditions. The commenter finds that the requirement to exit severe of the Federal Aviation Regulations (14 adds that these AFM procedures result icing conditions and information CFR parts 135 and 91). The appropriate in additional operating limitations on concerning use of the autopilot during vehicle for ensuring that the Limitations the aircraft with regard to severe flight in those conditions must be Section of the AFM’s is changed is weather conditions. The commenter included in the Limitations Section of through issuance of an AD. believes these AFM procedures address the AFM. Additionally, information all current FAA requirements. Comment 18. Request To Withdraw the concerning use of the flaps during those The FAA does not concur that the Proposals: Use Existing AFM Revisions conditions should be included in the AFM for Fairchild Model SA226 and Procedures Section of the AFM. The The General Aviation Manufacturers SA227 series airplanes addresses all of appropriate vehicle for requiring these Association (GAMA), on behalf of its the proposed requirements of the changes to the AFM is through issuance members, states that some of the proposed rule. For example, the of an AD. affected manufacturers have prepared Limitations section of the AFM for those FAA-approved revisions for the AFM’s airplanes does not require the flight Comment 16. Request To Withdraw the for their products. GAMA indicates that crew to exit severe icing conditions. For Proposals: Require Alternative AFM those revisions incorporate specific this reason, the FAA does not consider Limitation information regarding cues for the AFM for Fairchild Model SA226 and One commenter requests that, in lieu recognizing severe icing conditions and SA227 series airplanes to be equivalent of an AD, the FAA require an alternative procedures for exiting such conditions, to the information specified in these AFM limitation that reads as follows: if encountered. Therefore, if the AD’s. ‘‘This aircraft is certified for flight into proposed AD’s are adopted, the icing conditions as specified by requirements of the AD’s would Comment 19. Request To Withdraw the Appendix C of Part 25. Actual icing supersede the information operators Proposals: Develop Rulemaking to encountered may be greater than have already incorporated into the Address Airplane Certification Outside Appendix C requirements.’’ AFM’s with less appropriate of Appendix C The FAA does not concur. The information that is not type design Three commenters suggest that suggested limitation does not provide specific. instead of arbitrarily prohibiting guidance as to how a pilot can identify One commenter, JAL, requests that operation of the airplane, the FAA and safely exit icing conditions that certain existing AFM revisions for the should undertake a well-designed have exceeded those specified in the affected Jetstream airplanes be cited in research program and, if warranted, icing envelope in Appendix C of part 25 the proposed AD’s for those airplanes in devise a rulemaking plan for of the Federal Aviation Regulations (14 lieu of the content of the proposed AD’s. certification of airplanes outside of CFR part 25). These AD’s are intended (However, JAL does not request that the Appendix C of part 25 of the Federal to provide the flight crew with visual proposals be withdrawn for this Aviation Regulations (14 CFR part 25). cues which indicate that icing particular reason.) JAL indicates that the One commenter also suggests possible conditions have exceeded the existing AFM revisions have already retroactive implementation of a new capabilities of the ice protection been FAA-approved. Appendix C. equipment, and with procedures to The FAA does not concur with the The FAA does not concur because of safely exit those conditions. No change commenters’ requests. The FAA the length of time that would be to the AD’s is necessary. acknowledges that the AFM revisions required to implement the commenters’ required by these final rules will suggestion. The FAA finds that action is Comment 17. Request To Withdraw the supersede previously approved AFM required prior to the commencement of Proposals: AFM Revisions Already Are revisions. However, the FAA is unaware the next icing season to prohibit the Required of any AFM that addresses all of the continued flight of airplanes in icing One commenter requests that the provisions specified in these final rules, conditions that have been shown to be proposals be withdrawn because section nor of any AFM that contains specific unsafe and for which the airplanes have 121.133 (‘‘Manual Requirements: visual cues that the FAA has not not been certificated. However, the FAA ‘Preparation’ ’’) of the Federal Aviation included in the final rules. Even if AFM is currently considering initiating an Regulations (14 CFR 121.133) already material currently exists that does assessment of the need to revise requires that operators incorporate contain all of the provisions of the final Appendix C and the possibility of its revisions into the AFM’s; therefore, rules, the FAA finds that issuance of an retroactive implementation. issuance of the proposed AD’s is AD would still be necessary to mandate Transport Canada Aviation states that unnecessary. the provisions of the AFM revisions. the FAA has determined that there may The FAA does not concur. Section However, the FAA would consider a be a problem with the certification 121.133 of the Federal Aviation request for approval of an alternative requirements for icing on de Havilland Regulations (14 CFR 121.133) does not method of compliance, in accordance Model DHC–6, DHC–7, and DHC–8 specifically require that AFM’s be with the provisions of this AD, for those series airplanes, but not the specific updated to current revisions. Section operators having AFM’s that already approval or design features of those 121.141 (‘‘Airplane or Rotorcraft Flight contain all of the provisions of the final airplanes. However, the commenter Manual’’) of the Federal Aviation rules. does not specifically request that the Regulations (14 CFR 121.141) requires Another commenter requests that the proposals be withdrawn. that the current AFM be carried on the FAA withdraw the proposal that applies The FAA does not concur with the aircraft, but does not require to Fairchild Model SA226 and SA227 commenter’s statement. The FAA has incorporation of the most current series airplanes. The commenter states only determined that no adequate revisions. Additionally, the commenter that the AFM for those airplanes means exists for the flight crew to does not address the need to change the currently contains visual cues to aid the determine when the icing certification AFM’s for airplanes that operate under flight crew in recognition of weather limits have been exceeded. The purpose parts 135 (‘‘Air Taxi Operators and conditions conducive to SLD. This AFM of these AD’s is to provide more clearly Commercial Operators’’) and 91 also provides procedures for avoidance defined procedures and limitations Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20655 associated with severe icing conditions. local conditions. One commenter states FAA would consider a request for This does not imply that the that the prohibition of dispatch with approval of an alternative method of certification requirements for icing are any inoperative ice detection lights compliance, in accordance with the inadequate. would preclude any efforts by an provisions of these AD’s, provided that operator to enhance safety by installing adequate justification is presented to Comment 20. Request To Withdraw the a second set of bulbs. The commenter support such a request. Proposals: Issue a ‘‘General AD’’ for All adds that under this proposed rule, this Airplane Types Comment 23. Request To Withdraw the type of action would be penalized by Proposals: Certify Airplanes for Flight in One commenter requests that a simply doubling the chances of a Conditions Outside Appendix C ‘‘general AD’’ be issued to prohibit all burned out bulb grounding the aircraft. airplane types from inadvertent flight In practice, if one were to add a fully One commenter implies that the into hazardous SLD conditions. Another redundant set of bulbs, it would airplanes affected by the proposed rules commenter adds that if encounters with enhance safety by allowing the must be rectified to a level beyond the freezing rain/freezing drizzle conditions equivalent of the current illumination present certification requirements for must be reported to Air Traffic Control, level even with a bulb burned out. flight in icing. such reporting also should apply to The FAA does not concur with these The FAA does not concur. The final flight crews of all airplane types. requests. FAA Operations Inspectors are rules do not require certification of the The FAA does not concur with the not authorized to make MMEL airplane beyond the current certification commenter’s request. For the reasons revisions. The FAA has determined that requirements for flight in icing specified discussed earlier in the preamble of this it is prudent to address the icing in Appendix C. These AD’s simply AD, the FAA has determined that detection lights in these final rules to provide the flight crew with visual cues airplanes having pneumatic deicing ensure uniform and immediate which indicate that icing conditions boots and unpowered aileron controls application of the requirements of the have exceeded the capabilities of the ice are of immediate concern and have been AD’s. Concerning the example provided protection equipment, and with addressed as a higher priority. The FAA by one of the commenters, if an operator procedures to safely exit those finds that action is required prior to the chooses to add a fully redundant set of conditions. commencement of the next icing season bulbs, that operator should request One commenter requests that the to prohibit the operation of these approval of an alternative method of proposal for de Havilland Model DHC– airplanes in icing conditions that have compliance in accordance with the 6 series airplanes be withdrawn because been shown to be unsafe and for which provisions of this final rule. this airplane model is type certificated the airplanes have not been certificated. Although Transport Canada Aviation in Canada, which is a country with a However, the FAA is currently does not request that the proposals be higher standard than the United States considering initiating an assessment of withdrawn, it requests a revision to the for operating in icing conditions. the potential adverse effects of SLD on requirement that all icing detection The FAA does not concur. This all airplane types. lights must be operative. For de commenter did not submit data to the Havilland Model DHC–7 and DHC–8 FAA to substantiate that the airplane Comment 21. Request To Withdraw the series airplanes, the commenter requests has been shown to be safe for flight Proposals: Establish a Detailed that the requirement be changed to outside the icing certification envelope Reporting System mandate that at least one outboard and specified in Appendix C. Additionally, One commenter requests that the FAA one inboard inspection light be the FAA is unaware of any foreign civil establish a detailed reporting system for operative prior to flight into known or aviation authority having certification inadvertent encounters with severe SLD. forecast icing conditions at night. Since requirements for icing conditions that The commenter envisions a system that the MMEL contains a provision that a are outside of the icing certification would provide a database for better suitable lamp/light of adequate capacity envelope used in the United States. identification of controllability issues be available, this is considered Comment 24. Request To Withdraw the and visual indications related to these acceptable in conjunction with other Proposals: Proposals Prohibit Takeoff or encounters. indications of freezing rain or freezing The FAA does not concur with the drizzle. Similarly, for de Havilland Approach in ‘‘Light Freezing Drizzle’’ commenter’s request. The FAA has been Model DHC–6 series airplanes, the Conditions advised that the Regional Airline requirement should be revised to One commenter requests the Association (RAA) has already require a suitable lamp/light for proposals be withdrawn because the established an ‘‘Unusual Icing Reporting dispatch at night with one wing proposed limitation would prohibit Program’’ for the purpose described by inspection light inoperative. takeoff or approach when ‘‘light freezing the commenter; therefore, establishing The FAA does not concur. The FAA drizzle’’ conditions that are caused by another reporting program would has determined that the justification light precipitation falling through a thin duplicate this benefit. provided by the commenter is not layer of cold surface air below warmer adequate to enable the FAA to air above are reported on the surface. Comment 22. Request To Withdraw the determine if the proposed changes are The commenter maintains that with Proposals: Revise the Master Minimum acceptable. During severe icing accomplishment of the appropriate Equipment List (MMEL) conditions, the flight crew’s workload ground deicing precautions prior to Two commenters request that, instead may be high, and there may be no takeoff, no hazard to the operation of the of addressing an MMEL item in an AD opportunity to use the portable lamp/ airplane is posed. [i.e., the icing detection lights light, which, in itself, may create The FAA does not concur that the referenced in paragraph (a)(1) of the disorientation in the cockpit due to AD’s should be withdrawn for this proposals], the FAA should require that adverse reflections from the glass. The reason. These AD’s do not affect any the MMEL be revised. A third FAA’s intent in having all inspection existing regulations or FAA-approved commenter adds that the decision to lights be operative at night is to provide operating procedures related to takeoff, change the MMEL should be made by the flight crew the best possible dispatch, or release of an airplane in FAA Operations Inspectors based on visibility of the airframe. However, the icing conditions, nor do these AD’s 20656 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations prohibit operation in specific has not been provided a reasonable potential hazards associated with meteorological conditions. These AD’s opportunity to comment. The fact that operating the airplane in severe icing only prohibit remaining in icing the commenter raises questions suggests conditions by providing the flight crews conditions when certain visual cues are that the commenter considers a need for with more clearly defined procedures present on the airplane. Operators must further clarification. Even if the and limitations associated with such comply with existing rules that require commenter is correct in that these conditions. However, no change to the an airplane to be free of ice prior to questions require clarification, that fact final rules is necessary. in itself is a comment that can be takeoff. Therefore, takeoff in ‘‘light Comment 27. Request To Expand the addressed properly by simply clarifying freezing drizzle’’ would only be Applicability of the AD’s prohibited by existing regulations or terms. The fact that clarification is FAA-approved operating procedures, necessary does not mean that the public One commenter, the CAA, suggests not by these AD’s. As explained has been denied reasonable opportunity that the ‘‘coverage’’ of the proposals previously, the FAA considers that to comment. should be stated clearly. The CAA landing the airplane when freezing rain/ In response to the commenter’s believes that a restriction to those freezing drizzle conditions are questions, the FAA provides the operations in ‘‘regularly scheduled encountered would, in many cases, be following clarification. The term passenger service’’ is not warranted for the most expeditious method of exiting ‘‘unusual icing’’ did not appear in the a safety issue as it does not cover cargo, the conditions. Such landing would be proposed rules. However, the phrase charter, or private operations. The in compliance with the limitation that ‘‘unusually extensive ice’’ is referenced commenter does not specify which requires the flight crew to exit the in paragraph (a)(1) of the final rules. airplane models should be addressed. severe icing conditions. [This reference appears in paragraph The FAA infers from the commenter’s (a)(2) of the final rule for Aerospatiale remarks that it requests that the Comment 25. Request To Withdraw the airplanes.] ‘‘Unusually extensive ice’’ proposed AD’s be applicable to other Proposals: Proposals Leave Unanswered accrued on the airframe in areas not airplane models that are used in cargo, Questions normally observed to collect ice is a charter, or private operations that may One commenter contends that the visual cue that is subject to have been excluded from the proposals leave unanswered questions. interpretation by the flight crew; applicability of these AD’s. The commenter alleges that without the therefore, a specific definition of The FAA does not concur that the answers to those questions, affected ‘‘unusually extensive ice’’ cannot be applicability of these AD’s should be parties are deprived of the ability to provided. expanded to include additional airplane provide informed comments and, These AD’s address changes to AFM models used primarily in cargo, charter, thereby, are ‘‘denied their rights under limitations, which pertain to the pilot or private operation. The FAA is the Administrative Procedures Act since the pilot is responsible to look for currently considering the need for additional rulemaking to address other (APA) to comment on the proposed the visual cues defined in the AD’s. airplane models having pneumatic rules.’’ Specifically, the commenter Therefore, the pilot determines when deicing boots and unpowered aileron asks: severe icing conditions exist. The terminology ‘‘splatter effect’’ did controls that are used in these types of —What is unusual icing? not appear in the proposed rules. The service that were not addressed by these —Does the pilot, Air Traffic Control, FAA infers from the commenter’s AD’s. Additionally, the applicability of dispatch, or the FAA determine when question that the commenter is these final rules indicates that the AD’s the conditions exist? referencing terminology used in apply to ‘‘all’’ of the airplane models —What is splatter effect? paragraph (a)(2) of the proposed AD’s. identified, certificated in any category. —Where are the operating instructions ‘‘Droplets that splash or splatter on This means that the AD’s apply to all of incorporated—in the AFM, training impact at temperatures below +5 the affected airplanes, regardless of how manuals, or some other document? degrees Celsius OAT’’ is a visual cue those airplanes are operated (including The FAA infers from the commenter’s that was included in the proposed AD’s passenger service, cargo, charter, or remarks that the commenter requests the as a method of identifying severe icing private operation). proposed AD’s be withdrawn because conditions. informed comments could not be Comment 28. Request for Design Concerning incorporation of operating Changes to the Airplanes provided. instructions, these final rules specify The FAA does not concur that the that the AFM’s be revised. The AD’s do One commenter requests that the FAA AD’s should be withdrawn on this basis. not specify that any other manuals or require design changes to the airplanes, The FAA does not agree that the public documents be revised. However, which, when accomplished, will allow has been deprived of the ability to information that is included in the AFM elimination of the AFM limitations. The provide informed comments, as as a limitation is necessarily included in commenter states that abnormal roll required by the APA. In general, the the training program. control anomalies could be eliminated APA requires that notice of the terms or by design changes that prevent any ice substance of a proposed rule be Comment 26. Request To Clarify Scope shapes from forming by using published in the Federal Register. The of Icing Conditions Addressed supplemental ice protection added to purpose of this requirement is to ensure Transport Canada Aviation suggests existing pneumatic boots or other ice that federal agencies thoroughly that the proposals, which address only protection installations. The commenter consider all information and opinions freezing rain/freezing drizzle concludes that, given this added submitted by the public before any conditions, are not adequate to cover all protection, restricting flight in freezing requirements are imposed. Notice is hazards related to operation of aircraft drizzle could be reduced to allow intended to improve both the quality of in icing conditions. The commenter exposure to these atmospheric the regulations and their acceptability to makes no specific request. conditions for a reasonable time and the public. The FAA finds that none of The FAA concurs that these AD’s do would not require immediately exiting the questions raised by the commenter not address all icing related hazards. these conditions when encountered as identify areas in which the commenter The FAA’s intent is to minimize the presently stipulated. Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20657

The FAA does not concur that it commenters’ assertion that, under or freezing drizzle. The commenter should require design changes to certain circumstances, examination of notes that mixed icing has taken on two airplanes in these AD’s. Currently, the the undersurface of a high wing may not different definitions within the aviation FAA is unaware of any design changes be reliable. The FAA also agrees that community—the ‘‘engineering’’ that would allow elimination or other cues, such as unusually extensive definition (which is defined in an FAA reduction of the AFM limitations ice accrued on the airframe in areas not icing handbook) and the definition specified in these AD’s. However, if normally observed to collect ice and pilots use (which includes areas of clear such design changes are developed, accumulation of ice on the propeller and rime ice). The commenter states approved, and become available, the spinner farther aft then normally that a clear definition of these FAA would consider additional observed, are subjective and that conditions is needed. The commenter rulemaking to require such changes. The reliance on pilot judgment and adds that only pilot reports can show FAA finds that even if the ice protection experience is necessary in such cases. that freezing rain/freezing drizzle exists system prevented the formation of ice Additionally, the FAA fully supports because forecasting of these conditions shapes in front of the ailerons when the the development and use of airplane- is inadequate. The commenter indicates airframe is exposed to certain freezing specific cues by operators and that while the Aerospatiale airplanes drizzle conditions, other meteorological manufacturers. Unfortunately, no have side window cues that will conditions still exist (e.g., freezing rain) commenter provided airplane-specific accurately identify freezing rain or for which the airplane would not be cues during this comment period. freezing drizzle, pilots of other airplanes certificated. In summary, the FAA finds that the without such a sophisticated cue may combined use of the generic cues erroneously report mixed icing. Comment 29. Request for More Specific provided and the effect of the final rules The FAA does not concur. The FAA Visual Cues in increasing the awareness of pilots acknowledges that freezing rain and One commenter requests that the FAA concerning the hazard of operating freezing drizzle may be reported as provide more specific visual cues for outside of the certification icing clear/mixed icing conditions. However, identification of freezing rain or freezing envelope will provide an acceptable the flight crew must exit icing drizzle conditions. The commenter level of safety. However, for those conditions that produce the visual cues states that the generic visual cues operators that elect to identify airplane- specified in the final rules. Exiting the provided in the proposed AD’s are not specific visual cues, the FAA would icing conditions is not dependent upon adequate for aircraft types that consider a request for approval of an the terminology used to describe the frequently operate in and encounter alternative method of compliance, in conditions. Therefore, the FAA has SLD conditions. For example, ice could accordance with the provisions of this determined that it is not necessary to be forming on the upper wing and not AD. include references to clear icing the lower wing; therefore, looking at the Transport Canada Aviation states that conditions and the clear component of lower wing would not be a reliable the term ‘‘protected area’’ may not be mixed icing conditions. In addition, the visual cue. Two commenters suggest readily recognizable by the flight crew; FAA has determined that including a that specific visual cues be provided for for example, not all of a deicing boot discussion in these AD’s of the each airplane model. One of these surface is ‘‘protected area.’’ [This phenomenon of mixed icing conditions commenters states that subjective cues terminology appears in the second as it relates to the current state-of-the-art may be of limited benefit if the pilot’s visual cue (in the proposals for weather forecasting would be premature experience with icing is inadequate. The airplanes other than Aerospatiale because no clear definition of this other commenter adds that subjective airplanes) and in the autopilot phenomenon has been agreed upon visual cues will result in varying limitation in paragraph (a)(1) of the among the aviation community. The interpretations (i.e., some unnecessary proposals. For Aerospatiale airplanes, FAA is currently considering an course changes in altitudes or service this terminology appears in the assessment during which various icing- interruptions caused by overly secondary indications in paragraph related subjects, including mixed icing conservative interpretations). Transport (a)(1) of the proposal.] The FAA infers conditions, would be addressed. Canada Aviation does not request more that the commenter requests that more Comment 31. Request for Research and specific visual cues; but states that specific language than ‘‘protected area’’ Use of Wing-Mounted Ice Detectors ‘‘unusually extensive ice,’’ ‘‘normally be used. observed,’’ and ‘‘farther back than The FAA does not concur that this One commenter requests that wing- normally observed’’ are all variable terminology should be revised. The mounted ice detectors, which provide terms that are largely dependent on FAA considers that a pilot understands real-time icing severity information (or flight crew experience. The commenter that a portion of the deicing boot would immediate feedback) to flight crews, contends that limitations and be considered to be unprotected. continue to be researched and used procedures described using these terms Therefore, no additional clarification or throughout the fleet. The FAA infers will not be consistently interpreted. In definition of the term ‘‘protected area’’ from this commenter’s request that the addition, Transport Canada Aviation is necessary. commenter asks that installation of states that ice on the lower wing surface these ice detectors be mandated by the aft of the protected area, by itself, is Comment 30. Request to Reference Clear FAA. unlikely to cause a hazard. Moreover, Icing Conditions and Clear Component While the FAA supports the the presence or absence of such ice of Mixed Icing Conditions development of such ice detectors, the cannot be used as an indication of any One commenter also asks that all FAA does not concur that installation of hazardous accumulation on the upper references to freezing rain and freezing these ice detectors should be required. wing surface or on the horizontal drizzle environments and visual cue The specifications for automatic stabilizer. identification reference clear icing detectors having the capabilities to The FAA does not concur with the conditions and the clear component of differentiate among freezing rain, commenters’ request to provide more mixed icing conditions. According to freezing drizzle, and other icing specific (or airplane-specific) visual the commenter, mixed icing conditions conditions have not been determined. cues. The FAA agrees with the can contain areas of freezing rain and/ However, if such ice detectors are 20658 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations developed, approved, and become is acceptable for compliance with the conditions, including freezing rain/ available, the FAA may consider further requirements of that paragraph. The freezing drizzle. However, the FAA rulemaking action to require installation commenter provides no justification for considers that the combination of the of such equipment. its request. enlarged deicing boots, the AFM The FAA does not concur with the operational procedures and restrictions, Comment 32. Request to Limit the commenter’s request to revise the AD. Applicability of the AD’s and the visual cues which indicate entry However, if an improved version of into freezing rain/freezing drizzle One commenter requests that the deicing equipment is developed, conditions provides for an enhanced applicability of the proposals be limited approved, and available, the FAA would level of safety during inadvertent flight to airplanes having NACA 430xx consider a request for approval of an in these conditions. airfoils. The commenter asserts that the alternative method of compliance, in unusual pressure peak on the NACA accordance with the provisions of the Comment 35. Request for Formal 430xx airfoils at 9 percent chord caused AD. Weather Forecasting System for the ice ridge to form at that point, which Freezing Rain/Freezing Drizzle resulted in the accident involving a Comment 34. Request for Re-Evaluation Aerospatiale Model ATR–72 series of Modified Deicing Boots on One commenter supports a airplane. The commenter states that Aerospatiale Airplanes requirement to establish a formal system ‘‘the accident was caused by the poorly In response to the proposal for to provide forecasts of freezing rain/ designed, unusual, and fortunately Aerospatiale airplanes, one commenter freezing drizzle conditions, as proposed rarely used NACA 430xx airfoils used requests that the new, enlarged deicing in paragraphs (b) and (c) of the original on this airplane.’’ boots that are required to be installed on proposed rule for Aerospatiale The FAA does not concur with the these airplanes must be re-evaluated airplanes. [This proposed requirement commenter’s request to limit the before total confidence in the modified was removed from the subsequent applicability of the AD’s. First, the boots is warranted. The commenter supplemental notice of proposed National Transportation Safety Board asserts that no test data exist to show rulemaking (NPRM) issued for these (NTSB) has not yet made an official that the modified boots will preclude airplanes in January 1996.] The finding of the probable cause of the the problem of large droplets outside of commenter states that such a accident referenced by the commenter. Appendix C. The area of exposure requirement should remain in effect Therefore, the FAA cannot assume that outside of Appendix C is essentially until forecasting tools are developed or airplanes having NACA 430xx airfoils open-ended, and only limited testing detection methods are established to are more susceptible to the addressed within a narrow range of droplet prevent dispatch or operations in unsafe condition than those airplanes diameters was conducted. Additionally, conditions outside those specified in that do not have this type of airfoil. the test conditions that existed during Appendix C. The commenter states that Second, the FAA has examined the data the tanker testing conducted at Edwards the efficacy of the deicing boots has not submitted by the commenter, and Air Force Base, which was intended to been shown completely nor disagrees with the commenter’s be a ‘‘before modification/after documented; therefore, avoidance of assertion concerning the formation of modification’’ validation program, were freezing rain/freezing drizzle is ice ridges. The formation of ice ridges not identical. The commenter adds that paramount to safety of flight. depends on many factors. Ice ridges no modification will ensure that any The FAA does not concur that such a have been observed to form in areas airplane is safe while flying in icing requirement is necessary. The FAA where there is no pressure (commonly, conditions outside those specified in agrees that such a system would ‘‘suction’’) peak. However, the Appendix C. enhance the safety of flight operations. impingement location of large droplets The FAA does not concur with the However, there is no evidence that lack is more relevant to the development of commenter’s request for a re-evaluation of a system with such specialized ice ridges than the particular pressure of the modified deicing boots. The features would lead to an unsafe distribution. The commenter does not modified deicing boots for these condition. Forecasts of freezing rain/ address the fact that, regardless of the airplanes were subjected to an extensive freezing drizzle are a normal part of pre- type of airfoil on an airplane, a certification program by both the FAA flight weather briefings. The FAA is substantial sharp edge protuberance in and the Direction Ge´ne´rale de l’Aviation aware, however, of serious limitations the vicinity of the suction peak can have Civile (DGAC), which is the for such a system to provide accurate adverse consequences to the airworthiness authority for France. FAA and timely forecasts of these conditions aerodynamic performance of the airfoil. approval of the modified boots was during flight in areas that are removed Regardless of the cause of location of ice based on engineering analyses, wind from weather reporting stations. Quite formations, prevention or removal of the tunnel testing, flight testing in natural often, the only indication of the ice is certainly an acceptable remedy for icing conditions, and a validation existence of severe icing conditions is such conditions, should those program involving a United States Air from pilot reports or other direct conditions occur. For example, Force icing tanker. This testing verified observations. Aerospatiale extended the deicing boots that the modified boots continue to to prevent the formation of adverse ice perform the intended function within Research is underway currently in ridges. the Appendix C icing envelope. In industry and the academic community addition, the extended deicing boots to address shortcomings in the Comment 33. Request for Approval of were shown to adequately protect the forecasting of severe icing conditions. Improved Deicing Equipment for airplane from the larger, supercooled The FAA may consider further Aerospatiale Airplanes water droplets that are believed to have rulemaking if advancements in weather ATR requests that paragraph (b) of the existed in the area at the time of the forecasting provide for a reliable method proposed rule for Aerospatiale airplanes accident in October 1994. to predict the occurrence of freezing be revised to indicate that installation of It should be noted, however, that it is rain/freezing drizzle conditions during any improved version of deicing not intended that the modified boots flight or in areas removed from direct equipment that is approved by the FAA provide protection in all possible icing observations. Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20659

Comment 36. Request To Approve for Aerospatiale airplanes, as follows: has exceeded the Appendix C icing Earlier Service Bulletin Revisions ‘‘Freezing rain and freezing drizzle are envelope with respect to Beech One commenter to the proposed rule characterized by ice covering all or a airplanes. Therefore, the cue specified for Aerospatiale airplanes requests that substantial part of the unheated portion in the proposal would be irrelevant in the proposed AD be revised to specify of either forward side window and/or an AFM for these airplanes. water splashing or streaming on the The FAA does not concur with that earlier revisions of service bulletins windshield or the side window when in Raytheon’s request. The commenter has are acceptable for compliance with the freezing or near freezing temperatures.’’ not submitted data to warrant removal requirements of the proposed rule. The The commenter states that the present of the visual cue. No change to the final commenter makes this request so as to wording implies that ice will always rule for Beech airplanes has been made. eliminate the need to apply for approval appear on the side window; however, of alternative methods of compliance Comment 40. Request To Remove Visual this is not the case. when accomplishing service bulletin The FAA does not concur with the Cue: Accumulation of Ice on Wing revisions other than those specified in commenter’s request. The commenter’s Surfaces the proposed rule. revised wording suggests that water JAL requests that the FAA remove the The FAA does not concur that earlier splashing or streaming on the generic information contained in the revisions of the referenced service windshield or the side window would visual cue concerning accumulation of bulletins should be cited in the final be a primary cue used to determine ice on the wing surfaces from the rule for Aerospatiale airplanes. when severe icing conditions are proposals for Jetstream airplanes. JAL However, the FAA would consider a present. The FAA does not concur that indicates that, for its airplanes, the request for approval of an alternative water splashing or streaming on the appropriate visual cue is the accretion method of compliance, in accordance windshield or the side window would of ice behind the protected area of the with the provisions of the AD, provided be a reliable cue in itself. However, this wing upper surface (not the wing lower that adequate justification is presented cue may be used as a supplemental cue surface). to support such a request. to the primary cue of ice accruing on the The FAA concurs. The FAA finds that Additionally, the FAA has revised the side window. No change to the final this particular visual cue should be revision levels specified for certain rule for Aerospatiale airplanes is airplane-specific. Therefore, the FAA service bulletins because those revision necessary. has customized paragraph (a)(1) of the levels were omitted inadvertently from final rules for all affected airplanes to Comment 39. Request To Remove Visual paragraph (b) of the proposed rule for specify whether accumulation of ice is Cue: Unusually Extensive Ice Accretion Aerospatiale airplanes. That final rule observed on the upper or lower surface has been revised to indicate that certain One commenter, Saab, requests that if of the wing, depending upon whether modifications are to be accomplished in the FAA does not withdraw the the airplane is a high- or low-wing accordance with Revision 1 of proposed AD’s, paragraph (a)(1) of the airplane. [Operators should note that, Aerospatiale Service Bulletins ATR42– proposal for Saab SF340A and SAAB for Aerospatiale airplanes, the cue was 57–0043, ATR72–57–1015, and ATR72– 340B series airplanes should be revised. customized in paragraph (a)(2) of the 57–1016. The correct date for Revision The commenter suggests that the first final rule.] 1 of those service bulletins (April 10, visual cue that appears in that 1995) was specified in the proposal for paragraph, which relates to unusually Comment 41. Request To Revise Visual the affected airplanes. extensive ice accretion, be removed Cue: Accumulation of Ice on Propeller from the proposal for those airplanes. Spinner Comment 37. Request To Revise Saab indicates that critical ice is Referenced Service Bulletins One commenter requests that the FAA believed to be ice that builds up beyond revise the visual cue concerning One commenter to the proposal for the protected surfaces on the wing. On accumulation of ice on the propeller Aerospatiale airplanes suggests that Saab Model SF340A and SAAB 340B spinner, as specified in paragraph (a)(1) service bulletin revisions should series airplanes, the pilot has a good of the proposals. For consistency, the contain a statement indicating that the view of the outer wing and the propeller commenter requests that the word revision has no effect on previously spinner. Unusually extensive ice in ‘‘back’’ be replaced with ‘‘aft.’’ modified airplanes. The commenter other areas may or may not be The FAA concurs with the provides no justification for this request. significant in determining whether commenter’s request. The final rules The FAA acknowledges that many freezing rain or freezing drizzle is have been revised to change the visual service bulletins do contain the present; however, the primary visual cue to read as follows: ‘‘Accumulation suggested phrase as an aid to operators cue for these airplanes is ice on the of ice on the propeller spinner farther that may already have accomplished an spinner/outer wing. aft than normally observed.’’ [Operators earlier service bulletin revision. In fact, In light of Saab’s remarks, the FAA should note that, for Aerospatiale if a particular service bulletin is concurs that the visual cue addressed by airplanes, this change appears in specified in an AD and that service the commenter should be removed from paragraph (a)(2) of the final rule.] bulletin is revised, the FAA routinely the final rule for Saab Model SF340A determines whether the service bulletin and SAAB 340B series airplanes. (That Comment 42. Request To Remove Visual revision adequately addresses the visual cue remains in place for Saab Cue: Accumulation of Ice on Propeller unsafe condition specified in the AD; if Model SAAB 2000 series airplanes.) Spinner necessary, the FAA amends the AD to Paragraph (a)(1) of that final rule has One commenter, JAL, requests that cite the later service bulletin revision. been revised accordingly. the FAA remove the visual cue A second commenter, Raytheon, concerning accumulation of ice on the Comment 38. Request To Revise Visual requests that the same visual cue be propeller spinner from the proposals for Cue: Ice on Side Window removed from the proposal for Beech Jetstream airplanes. JAL indicates that One commenter suggests revised airplanes. Raytheon indicates that it on Jetstream Model ATP airplanes and wording for the first visual cue specified does not believe that observation of this Model 748 series airplanes, the in paragraph (a)(1) of the proposed rule visual cue indicates that the airplane propeller spinner is not visible from the 20660 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations flight deck. On Jetstream Model 3101, following visual cues. If one or more of simplify certain language, the FAA has 3201, and 4101 airplanes, the propeller these visual cues exist, immediately revised the first instruction of the spinner is visible from the flight deck, request priority handling from Air procedures. The revised instruction but flight test experience indicates that Traffic Control to facilitate a route or an reads as follows: ‘‘Immediately request there is no unique correlation between altitude change to exit the icing priority handling from Air Traffic the extent of spinner ice accretion and conditions.’’ (This wording is slightly Control to facilitate a route or an the existence of freezing rain/freezing different in the final rule for altitude change to exit the icing drizzle conditions. Aerospatiale airplanes because only one conditions in order to avoid extended The FAA concurs partially. The FAA visual cue is provided.) The FAA finds exposure to flight conditions more concurs that since the propeller spinner that this revision to the final rules severe than those for which the airplane is not visible from the flight deck on addresses the commenters’ concerns has been certificated.’’ Jetstream Model ATP airplanes and with regard to the proposed limitations. Model 748 series airplanes, the visual Comment 44. Request To Change the One commenter poses various Note Concerning the Autopilot cue can be removed from paragraph questions concerning the last sentence (a)(1) of the final rules for these models. of the first instruction listed in the One commenter, ATR, requests that The FAA does not concur that this procedures for exiting the freezing rain/ the FAA revise the second note in visual cue should be removed from the freezing drizzle environment in paragraph (a)(1) of the proposal for AD’s for Jetstream Model 3101, 3201, paragraph (a)(2) of the proposals. (That Aerospatiale airplanes. As proposed, and 4101 airplanes. The commenter did sentence reads as follows: ‘‘Asking for ATR believes the last sentence of the not submit data to substantiate its priority to leave the area is fully note is too restrictive. ATR proposes the assertion that flight test experience justified under these conditions.’’) following: ‘‘The autopilot may mask tactile cues * * * characteristics. indicates there is no unique correlation —What does the term ‘‘priority’’ provide Therefore, when any ice is visible on the between the extent of spinner ice a pilot when asking for priority to airplane, the pilot should consider accretion and the existence of freezing leave icing conditions? flying manually for short periods in rain/freezing drizzle conditions. —What if there were three simultaneous order to check the absence of any Therefore, it is uncertain if the requests for ‘‘priority?’’ commenter’s flight test airplane was —What Air Traffic Control procedures anomaly.’’ Two commenters request that the equipped with instrumentation that exist for treating an immediate request FAA remove a similar note concerning would allow the detection and/or for ‘‘priority?’’ the autopilot from the proposals for measurement of droplets outside the —Where is the term ‘‘priority’’ defined? Appendix C conditions, and if the airplanes other than Aerospatiale airplane had flown into icing conditions The commenter states that confusion models. One of the commenters, JAL, containing freezing rain or freezing over terms that have not been defined states that the note contains advisory drizzle. clearly by the FAA has partially resulted information and should not appear in in accidents and incidents. However, the Limitations Section of an AFM. Comment 43. Request To Remove the commenter does not cite a specific The FAA concurs with ATR’s Limitation to Immediately Exit Freezing case in which this occurred. comment that the last sentence of the Rain/Freezing Drizzle The FAA has re-examined the last note is too restrictive; that sentence has Saab requests that the FAA remove a sentence of the first instruction listed in been removed from the final rules for all sentence from paragraph (a)(1) of the the procedures for exiting the freezing airplanes. However, the FAA does not proposals that requires the pilot to rain/freezing drizzle environment in agree with JAL’s contention that the immediately exit freezing rain or paragraph (a)(2) of the proposals. The explanation of the relationship between freezing drizzle conditions by changing FAA has reconsidered use of the term the autopilot and the masking of tactile altitude or course. This commenter ‘‘priority.’’ The FAA finds that more cues is inappropriate for insertion in the points out that the first limitation appropriate language that would be Limitations Section of an AFM. On the contained in the proposal for Saab understood clearly by the flight crew contrary, the FAA finds that inclusion airplanes (‘‘Flight in meteorological and Air Traffic Controllers should be of such information will increase the conditions described as freezing rain or used in that instruction. Existing level of understanding and, freezing drizzle, as determined by the training for flight crews and Air Traffic consequently, will increase the level of following visual cues, is prohibited Controllers addresses priority handling safety. ** *’’) already prohibits flight in these of airplanes. However, the FAA will In light of this, the FAA finds that the conditions, and the pilot should issue additional information for Air note may be removed from paragraph respond accordingly. Raytheon believes Traffic Controllers to further clarify (a)(1) of the final rules for all airplanes; a conflict exists between using priority handling of airplanes in severe however, the information contained in observations of ice accretion, as icing conditions. The FAA finds that the the first sentence of that note has been required by paragraph (a)(1) of the limitations specified in paragraph (a)(1) combined with the autopilot limitation proposed rules, and the of the final rules will result in the pilot in paragraph (a)(1) of the final rules. The ‘‘determination’’ of certain taking appropriate steps to exit the icing final rules have been revised meteorological conditions. conditions. Therefore, the FAA finds accordingly. The FAA concurs partially. The FAA that the sentence questioned by the does not agree that the sentence commenter may be removed from the Comment 45. Requests to Remove discussed by Saab should be removed final rules without affecting safety. Autopilot Limitation from paragraph (a)(1) of the final rules. Accordingly, the FAA has removed that Saab requests that the FAA revise the As explained previously, the first sentence from the final rules. second limitation that appears in limitation in paragraph (a)(1) of the final Additionally, in order to use paragraph (a)(1) of the proposal for Saab rules has been revised to read: ‘‘During terminology in the procedures for airplanes. As proposed, this limitation flight, severe icing conditions that exiting the severe icing environment indicates that use of the autopilot is exceed those for which the airplane is that is consistent with the terminology prohibited when any ice is observed certificated shall be determined by the used in the revised limitation and to forming aft of the protected surfaces of Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20661 the wing, or when unusual lateral trim disconnect the autopilot and could then or Abnormal Procedures Section of the requirements or autopilot trim warnings be faced unexpectedly with unusual AFM, rather than in the Normal are encountered. Saab asks that this control forces. These reasons also still Procedures Section, as specified in autopilot limitation be modified to take hold true with airplanes that have been paragraph (a)(2) of the proposals. into consideration the autopilot system flight tested with the ice shapes. The FAA concurs partially. The FAA design on these airplanes, which Since the issuance of the proposed agrees that the Abnormal Procedures provides out-of-trim warnings; rules, the FAA has re-examined the Section may be an appropriate location therefore, the autopilot can be used up autopilot limitation specified in for the procedures for exiting severe to the point where a warning is paragraph (a)(1) of the proposals. The icing conditions. However, the FAA triggered. Saab adds that the triggering FAA recognizes that clarification is does not agree that such operational point is early enough for the warning to necessary with regard to its intent procedures should appear in the be taken, should the reason be ice build- concerning that limitation. That Limitations Section of the AFM since up beyond the protected surfaces. limitation, as specified in the proposals, such procedures are not limitations. Additionally, there is no automatic states that use of the autopilot is Additionally, upon further review, the disconnect if the autopilot servo reaches prohibited when any ice is observed FAA finds that AFM’s may have neither its limit torque, which would prevent forming aft of the protected surfaces of an Abnormal Procedures nor a Normal any surprise to the pilot during an out- the wing, or when unusual lateral trim Procedures Section. Consequently, to of-trim condition. requirements or autopilot trim warnings provide operators with flexibility as to Another commenter, EMBRAER, are encountered. However, the FAA’s where the procedures specified in requests that use of the autopilot not be intent concerning that limitation is that paragraph (a)(2) should be incorporated limited for EMBRAER Model EMB–120 the autopilot be disconnected when the in the AFM, that paragraph has been series airplanes. The commenter states flight crew observes any of the visual revised to require that the ‘‘Procedures’’ that flight tests have demonstrated the cues identified in paragraph (a)(1) of the Section of the AFM be revised. This safe ability of these airplanes to depart AD’s. The need to disconnect the means that the procedures may be a freezing rain/freezing drizzle autopilot arises when an amount of ice inserted in the ‘‘Normal Procedures,’’ condition with the autopilot on. accumulates that indicates the limits of ‘‘Abnormal Procedures,’’ or other Raytheon also objects to the autopilot the ice protection equipment have been ‘‘Procedures’’ Section of the AFM, as limitation. Raytheon suggests that a exceeded, regardless of the means by appropriate. better approach is to inform the pilots which the flight crew becomes aware of Comment 47. Request To Remove of the nature of ice accretion, and then the accumulation of ice. let the pilots decide when to use the Additionally, the FAA acknowledges Duplicate Visual Cues autopilot. The commenter believes that that the autopilot limitation, as Two commenters indicate that certain prohibiting use of the autopilot when proposed, could be misinterpreted to visual cues specified in paragraph (a)(2) any ice is observed aft of the protected mean that the autopilot must be of the proposals are duplicated in the surfaces of the wing is a rigid disengaged when unusual lateral trim or ‘‘Warning’’ that is also contained in that requirement that takes away a valuable autopilot trim warnings are paragraph. One commenter states that aid to the flight crew when it may be encountered, regardless of whether the the duplication of text reduces the needed most. Raytheon states that there airplane is in icing conditions. impact of the message. Another is no evidence that the autopilots on However, the FAA only intended that commenter questions whether the visual Beech aircraft would mask an icing the autopilot limitation apply while the cues and procedures for exiting the related control problem. The commenter airplane is in icing conditions. icing environment are intended to be points out that tests on those aircraft In light of this, the FAA has part of the AFM material. The FAA disclosed no icing related control determined that the autopilot limitation infers from these remarks that the problem to mask. The commenter adds contained in paragraph (a)(1) of the final commenters request that duplicate text that trying to anticipate every situation rules must be revised. The FAA has be removed. with an absolute prohibition may lead changed that limitation to read as Transport Canada Aviation requests to other unsafe conditions. follows: ‘‘Since the autopilot may mask that the ‘‘Warning’’ be removed because The FAA does not concur that the tactile cues that indicate adverse indications of the possible hazard are autopilot limitation should be modified changes in handling characteristics, use progressive and may not necessarily or removed from the AD’s for any of the of the autopilot is prohibited when any require immediate action from the pilot. affected airplanes. The limited amount of the visual cues specified above exist, The commenter suggests that renaming of time the pilot is using manual or when unusual lateral trim this as a ‘‘Caution’’ may be more controls instead of the autopilot would requirements or autopilot trim warnings appropriate. not result in an unsafe condition. In are encountered while the airplane is in The FAA concurs partially. The FAA normal operational environments and icing conditions.’’ (This wording is agrees that duplicate text should be conditions, the autopilot is a valuable slightly different in the final rule for removed from the ‘‘Warning’’ section aid that reduces the workload of the Aerospatiale airplanes because only one that appeared in the proposals. The flight crew. However, under abnormal visual cue is provided.) This revision FAA finds that only one unique conditions (ice aft of the protected more accurately reflects the FAA’s instruction appears in the ‘‘Warning’’ in surfaces, unusual lateral trim, or intent and is, therefore, a logical paragraph (a)(2) of the proposals: ‘‘If the autopilot trim warnings), the autopilot outgrowth of the proposed rules. flaps are extended, do not retract them will mask the build-up of large or until the airframe is clear of ice.’’ unusual control forces in one or more Comment 46. Request To Insert Therefore, the FAA has added that axes. Therefore, for the short period of Procedures in Limitations or Abnormal instruction to the procedures for exiting time necessary to exit severe icing Procedures Section of AFM the severe icing environment in conditions, the safest course of action One commenter suggests that paragraph (a)(2) of the AD’s. The would be manual pilot control. Even if operations in icing conditions that remainder of the ‘‘Warning’’ section that an autopilot does not automatically exceed the capability of the airplane appeared in the proposals has been disconnect, the pilot may choose to should be described in the Limitations removed from the final rules. 20662 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

Comment 48. Request for Revision to Transport Canada Aviation requests ‘‘Warning.’’ The FAA finds that Instruction for Flaps Extension that this instruction be revised to read ‘‘Warning’’ is a stronger term and would as follows: ‘‘Do not extend flaps during be a more appropriate heading for the Saab requests that the FAA revise an operation in icing conditions, except for paragraph in question. Additionally, the instruction contained in the procedures approach and landing. Operation with FAA finds that the ‘‘Warning’’ provides for exiting the freezing rain/freezing flaps extended will result in a reduced advisory information that should drizzle environment in paragraph (a)(2) wing angle-of-attack with the possibility precede the first limitation in paragraph of the proposals. That instruction of ice forming on the upper surface (a)(1) of the AD’s. Accordingly, the FAA indicates to ‘‘Avoid extending flaps further aft on the wing than normal, has revised the heading ‘‘Caution’’ to during extended operation in icing possibly aft of the protected area.’’ ‘‘Warning’’ in the final rules. In conditions * * *.’’ Saab suggests the The FAA concurs partially. The FAA addition, the ‘‘Warning’’ has been following: ‘‘Do not extend flaps when does not concur with the commenter’s placed at the beginning of paragraph holding in conditions where ice is suggested rewording to limit use of the (a)(1) of the final rules. The FAA has accreting on the airframe.’’ Further, the flaps in all operation in icing conditions determined that including this commenter asks that this instruction be except approach and landing. The information in the Limitations Section inserted as a ‘‘caution’’ in the wording proposed in the AD’s would of the AFM will not impose an Limitations Section of the AFM, rather affect use of the flaps only during additional burden on any operator, than into the Normal Procedures extended operation in icing conditions. since it is informational only and does Section, as specified in the proposed The FAA finds that an amount of ice not necessitate providing an additional rule. Saab believes that it is imperative sufficient to cause control problems is opportunity for public comment. that the flaps not be extended in such more likely to accumulate during Additionally, the commenter notes cases. Inserting the instruction into the prolonged operations in icing that an undefined term, ‘‘extreme,’’ is Limitations Section, rather than the conditions. Further, the FAA does not used in a sentence in the ‘‘Caution’’ Normal Procedures Section, would add concur that the words ‘‘operation of the paragraph of the proposals, as follows: strength to the requirement. flaps can result in a reduced angle-of- ‘‘Flight in freezing rain, freezing drizzle, Another commenter states that this attack * * *’’ should be changed to or mixed icing conditions (supercooled same instruction appears to be in ‘‘operation of the flaps will result in a liquid water and ice crystals) may result conflict with previously approved AFM reduced angle-of-attack * * *’’ in this in extreme ice build-up on protected revisions which state, ‘‘Sustained flight instruction. Operation with flaps surfaces * * * .’’ The FAA infers from in icing conditions is prohibited with extended does not always result in a this remark that the commenter asks flaps extended.’’ However, the reduced angle-of-attack. For instance, that the word ‘‘extreme’’ be removed commenter does not provide a during extension of the flaps while the from the ‘‘Caution’’ paragraph. suggestion for rewording this airplane is slowing, the angle-of-attack The FAA concurs. The FAA finds that instruction. will increase. removing the word ‘‘extreme’’ would The FAA concurs with the suggestion not change the intent of the sentence The FAA concurs that the procedures to include the words ‘‘the possibility of and may eliminate confusion. The word related to extension of the flaps can be ice forming on the upper surface further ‘‘extreme’’ has been removed from this reworded somewhat. For clarification aft * * * .’’ The FAA acknowledges that section of the final rule. In addition, for purposes, the FAA has replaced the under certain conditions the droplets clarification purposes, the FAA has word ‘‘avoid’’ with ‘‘do not’’ in that will not impinge further aft with a revised the first sentence of the procedure in paragraph (a)(2) of the reduced angle-of-attack. The final rules proposed ‘‘Caution’’ from ‘‘Severe icing final rules. This revision eliminates the have been revised to add the words comprises environmental conditions . . conflict discussed by the second suggested by the commenter to the sixth .’’ to ‘‘Severe icing may result from commenter. However, the FAA does not instruction specified in the procedures environmental conditions * * * .’’ agree that revising the remainder of the for exiting the severe icing environment instruction, as suggested by Saab, Comment 50. Request To Remove Visual contained in paragraph (a)(2) of the provides any additional clarification. Cues: Identification of Freezing Rain/ AD’s. That revised instruction reads as Freezing Drizzle The FAA agrees that inserting the follows: ‘‘Do not extend flaps . . . with revised wording in the Limitations the possibility of ice forming on the One commenter indicates that the Section of the AFM, rather than in the upper surface * * * .’’ cues provided in paragraph (a)(2) of the Normal Procedures Section, would be proposals for identifying freezing rain/ acceptable; however, this would expand Comment 49. Requests To Revise freezing drizzle conditions are the scope of the originally proposed ‘‘Caution’’ Paragraph duplicated in material that appears in rules and would necessitate reopening One commenter asks that the heading, paragraph (a)(1) of the proposals. The the comment period to provide ‘‘Caution,’’ which appears in paragraph FAA infers from this remark that the additional opportunity for public (a)(2) of the proposals, be renamed commenter requests that duplicative comment. In light of the time required ‘‘Warning’’ because this section is wording be removed from paragraph to complete the rulemaking process in intended to prevent loss of life or injury. (a)(2) of the proposed rules. advance of the upcoming icing season Transport Canada Aviation requests that The FAA concurs. The FAA finds that and in consideration of the safety issues the ‘‘Caution’’ section be changed to a the section entitled ‘‘The following shall addressed by these final rules, the FAA note. The commenter provides no be used to identify freezing rain/freezing finds that the AD’s should be issued justification. drizzle icing conditions’’ is duplicated without additional delay. However, the The FAA concurs partially. The FAA in material that appears in paragraph FAA would consider a request for does not concur that the ‘‘Caution’’ (a)(1), and does not enhance the approval of an alternative method of should be changed to a note because effectiveness of the AD’s. Therefore, that compliance, in accordance with the this section is intended to prevent loss section has been removed from provisions of this AD, to include this of life or injury. In light of this, the FAA paragraph (a)(2) of the final rules for all information in the Limitations Section concurs with the commenter’s request to airplanes other than Aerospatiale Model of an operator’s AFM. rename the ‘‘Caution’’ section ATR–42 and ATR–72 series airplanes. Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20663

Paragraph (a)(1) of the proposals for appropriate to incorporate this section Comment 53. Request To Replace Aerospatiale airplanes specified in the AFM. Reference to Droplets that Splash or secondary indications for identifying However, the FAA finds that Splatter possible freezing rain/freezing drizzle clarification is necessary with regard to JAL requests that the weather conditions. The FAA recognizes that the the title of this section. The FAA finds condition that pertains to ‘‘droplets that flight crew could have interpreted that that operators may misinterpret that splash or splatter’’ be removed from paragraph to mean that if the secondary title, as proposed, to mean that this paragraph (a)(2) of the proposals. JAL indicators were observed, the airplane section contains visual cues that should believes that this weather condition must be flown clear of the severe icing places too much emphasis on subjective conditions. However, the FAA’s intent be used to identify possible severe icing conditions prior to takeoff, dispatch, or judgment. JAL states that normal rain is that the flight crew must immediately conditions will contain droplets that request priority handling to exit the release while the airplane is on the ground. Additionally, the FAA finds splash or splatter upon impact with the icing conditions only when the visual windshield. JAL indicates that cue (ice on the side window) specified that confusion could result in differentiating between the weather information included in its existing in paragraph (a)(1) of the AD is AFM revisions, specified as follows, conditions specified in this section and observed. adequately addresses the issue: the visual cues provided in paragraph Accordingly, the FAA has deleted the ‘‘Prolonged operation in altitude bands (a)(1) of the AD’s. For clarification secondary indications of possible severe where temperatures are near freezing icing conditions from paragraph (a)(1) of purposes, the FAA has revised the title and heavy moisture is visible on the the final rule for Aerospatiale airplanes. of this section to read as follows: ‘‘The windscreen should be avoided.’’ In addition, the FAA has removed the following weather conditions may be The FAA does not concur that this visual cue (ice on the side window) conducive to severe in-flight icing.’’ weather condition should be removed from paragraph (a)(2) of the final rule. from the AD’s. This weather condition The FAA has retitled the section Comment 52. Request To Revise Air Temperature References must be used in conjunction with the containing the secondary indications of temperature specified as a means of possible severe icing as follows: ‘‘The Transport Canada Aviation states that identifying severe in-flight icing following may be used as secondary ambient temperature is indicated as conditions. The weather condition also indications of severe icing conditions.’’ static air temperature (SAT), rather than will alert the pilot to the possibility that Further, the last two secondary outside air temperature (OAT), for de unusual ice accretion may develop. The indicators contained in that section are Havilland Model DHC–8 series FAA finds that the AFM information specified in the final rule in a section airplanes. The FAA infers from this submitted by JAL does not provide an titled: ‘‘The following weather equivalent alert to the pilot. conditions may be conducive to severe remark the commenter requests that the in-flight icing.’’ (This change is ambient temperature that appears in the Comment 54. Request To Revise explained further in Comment 51 weather conditions specified in Procedures for Exiting Freezing Rain/ below.) paragraph (a)(2) of the proposals be Freezing Drizzle expressed as SAT for those airplanes. Comment 51. Request To Remove Visual JAL requests that the procedures for The FAA does not concur. The FAA Cues: Identification of Possible Freezing exiting freezing rain/freezing drizzle Rain/Freezing Drizzle does not intend to specify which specified in paragraph (a)(2) of the specific indicator in the cockpit a pilot proposals be restricted to essential One commenter states that the word should use to determine the ambient air instructions that the flight crew must ‘‘may’’ in the following title, which temperature. The FAA intends that the follow. JAL contends that the appears in paragraph (a)(2) of the pilot use whatever means necessary to procedures contained in the proposals proposals, is confusing: ‘‘The following determine ambient air temperature. are not written in the appropriate format may be used to identify possible for AFM procedures, but are more However, since airplanes may have freezing rain/freezing drizzle representative of advisory material. JAL indicators other than OAT, the FAA has conditions.’’ The commenter indicates also states that the current FAA- that AFM procedures should provide a replaced the words ‘‘outside air approved AFM procedures for exiting clear sequence of steps that must be temperature’’ with ‘‘ambient air freezing rain/freezing drizzle already followed and that such procedures temperature’’ in the weather conditions, provide this essential information and should be explicit; general advice, and in the procedures for exiting the conform to the existing style of the regardless of how prudent, should be severe icing environment, specified in AFM’s. Transport Canada Aviation published elsewhere. The FAA infers paragraph (a)(2) of these final rules to requests that the first instruction in from this remark that the commenter eliminate confusion concerning the these procedures be revised to state asks that the cues that appear under this need for a specific type of indicator. only: ‘‘Exit the freezing rain or freezing section be deleted. In addition, the FAA has re-examined drizzle conditions immediately.’’ The The FAA does not concur that this the ambient temperature of +5 degrees commenter also requests clarification of section should be removed. The cues Celsius that is specified in paragraph the terms ‘‘extended exposure,’’ as used provided for identification of possible (a)(2) of the proposals. The FAA has in that instruction. severe icing conditions will alert the determined that this temperature is too The FAA concurs partially. The FAA pilot to the possibility that unusual ice high to be used as a reliable indication has reviewed the procedures for exiting accretion may develop. The FAA finds of whether severe icing conditions may the severe icing environment and finds that the level of detail provided in the that two of the instructions contained in exist during flight. The FAA finds that final rules will increase the level of pilot those procedures do not require the 0 degrees Celsius is a more appropriate awareness and, consequently, will level of detail provided in the proposed indication. The FAA has revised increase the level of safety over that rules. The FAA finds that the which exists currently. Therefore, the paragraph (a)(2) of the final rules for all information concerning masking of FAA has determined that it is airplanes accordingly. control system forces is already 20664 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations provided in the Limitations Section of uncommanded control movement is explained previously, the FAA has the AFM. Therefore, the FAA has observed, the angle-of-attack should be revised the final rules to add the word revised the third instruction of those reduced by increasing the airspeed or ‘‘roll’’ to describe the type of procedures to read as follows: ‘‘Do not rolling the wings level (if in a turn), and uncommanded control movement. This engage the autopilot.’’ Additionally, the applying additional power, if needed. revised wording addresses Saab’s FAA has determined that the flight crew Saab suggests that this instruction be concern regarding increasing power for need not be provided with instructions revised to include the word ‘‘aileron’’ in a pitch anomaly. for reducing the angle-of-attack because the reference to uncommanded control Saab also notes that this instruction instructions such as this are considered movement. Saab states further that in recommends a reduction in the angle-of- to be basic airmanship. Accordingly, the the case of wing ice beyond the attack and application of power, if FAA has revised the fifth instruction in protected surfaces, the application of needed. However, the next instruction the procedures for exiting the severe power may be appropriate to increase of the procedures indicates that icing environment to specify only airspeed/improve airflow. However, if reducing the angle-of-attack may cause information that is essential for the ice has accrued on the wings beyond the ice to build up beyond the protected flight crew. The revised instruction protected surfaces, there is a possibility areas of the wing. Saab concludes that reads as follows: ‘‘If an unusual roll that there also is ice on the horizontal there is a conflict in that the proposed response * * * reduce the angle-of- stabilizers. In this case, a sudden burst AD would require that the angle-of- attack.’’ The FAA finds that, for the of power may be detrimental. An attack not be reduced or ice will collect remainder of the procedures for exiting, uncommanded pitch control movement beyond the protected surfaces; however, the additional level of details provided is indicative of tail ice, which normally the angle-of-attack must be reduced if in the final rules will increase the level calls for a different action, both there is an unusual roll response or of understanding and, consequently, concerning power as well as the uncommanded control movement. will increase the level of safety over that handling of flaps, if extended. Another The FAA does not concur with the which exists currently. The FAA finds commenter, Transport Canada Aviation, commenter’s contention that there is a that these procedures are appropriate for requests that the same instruction be conflict in the AD’s. Reducing the angle- insertion in the AFM’s. revised to include the word ‘‘lateral’’ in of-attack by increasing airspeed or Regarding the terms ‘‘extended reference to ‘‘uncommanded control rolling the wings level (if in a turn), and exposure,’’ the intent of that instruction movement,’’ and to change the phrase applying additional power, if needed, is is to advise the flight crew that exiting ‘‘or rolling wings level’’ to ‘‘and rolling a procedure used to exit severe icing the severe icing conditions will wings level.’’ conditions following an unusual roll minimize the exposure to flight The FAA concurs partially. The FAA response or uncommanded roll control conditions outside those for which the agrees that the correct procedures for movement; whereas the instruction that airplane has been certificated. The FAA reducing the angle-of-attack is to involves not extending the flaps during finds that remaining in such conditions increase the airspeed and roll the wings extended operation in icing conditions for a prolonged period may result in level, if in a turn. However, as explained is intended to prevent ice build-up accumulating an amount of ice previously, this portion of the procedure beyond the unprotected surfaces. sufficient to cause control problems. has been removed from the final rules. Raytheon asks for removal of the The phrase ‘‘to avoid extended The FAA does not agree that either instruction to reduce the angle-of-attack exposure’’ is only intended to explain to ‘‘lateral’’ or ‘‘aileron’’ should be used to and apply additional power, if needed, the flight crew why severe icing specify the type of uncommanded in response to an unusual roll response conditions should be exited control movement. The FAA finds that or uncommanded control movement. immediately. use of the term ‘‘lateral’’ may not be The commenter states that these are Raytheon questions the necessity to understood by the flight crew. The FAA normal instructions with respect to tell a commercial pilot not to make any finds that including the word ‘‘aileron’’ wing stall and are inappropriate for abrupt or excessive maneuvers if the may clarify which control surface is of inclusion in an AFM. aircraft is in the position of having concern; however, the FAA has The FAA concurs partially. There control difficulties. This instruction determined that use of a more general may not be a stall warning associated appears under the heading ‘‘Procedures term, ‘‘roll’’ will correctly specify the with uncommanded control movements for exiting the freezing rain/freezing type of uncommanded control in the case of encounters with severe drizzle environment,’’ which appears in movement that is of concern. The FAA icing conditions. Since this is not a paragraph (a)(2) of the proposals. The has revised the fifth instruction in the ‘‘normal’’ stall, the flight crew may not commenter contends that this is a procedures for exiting the severe icing recognize that normal stall recovery training issue and is not appropriate for environment in paragraph (a)(2) of the procedures should be used. However, as AFM procedures. The FAA infers from final rules accordingly. The revised stated previously, the instruction the commenter’s remark that the instruction reads as follows: ‘‘If an referenced by the commenter has been commenter requests that these unusual roll response or uncommanded deleted, in part, from the final rules. instructions be eliminated from the roll control movement is observed, Raytheon also states that it is not proposed rules. reduce the angle-of-attack.’’ appropriate to require contact with Air The FAA does not concur. The FAA In addition, the procedures for exiting Traffic Control as part of an AFM has determined that such instructions the freezing rain/freezing drizzle procedure since this is already provide beneficial guidance to the flight environment contained in the proposals addressed in the Aeronautical crew, which will enhance the safety of did not specify to use ‘‘a sudden burst Information Manual and in section the aircraft. of power’’ when reducing the angle-of- 91.183 of the Federal Aviation Saab requests that the FAA revise one attack. Rather, the proposed procedure Regulations (14 CFR 91.183). The FAA of the instructions specified in the indicates to apply additional power, if infers from this statement that the procedures for exiting freezing rain/ needed, to provide the desired flight commenter requests that the instruction freezing drizzle specified in the path. However, as discussed previously, to contact Air Traffic Control should be proposals. The instruction states that if the FAA has removed this reference removed from the procedures for exiting an unusual roll response or from the final rules. In addition, as severe icing conditions. Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20665

The FAA does not concur. The FAA identified in the Limitations Section of design and be in a condition for safe is aware that this instruction is the AFM are observed. operation. The type design is approved contained in the references provided by In order to eliminate any confusion, only after the FAA makes a the commenter. However, the FAA finds the FAA has revised the last sentence of determination that it complies with all that the importance of timely the first paragraph in the procedures for applicable airworthiness requirements. dissemination of this instruction exiting the severe icing environment. In adopting and maintaining those warrants its inclusion in the final rules. The FAA has removed the word requirements, the FAA has already Inclusion of instructions of this type is ‘‘possible’’ from that sentence, and has made the determination that they not without precedent; for example, added clarification that the visual cues establish a level of safety that is cost- similar information also is specified in are specified in the Limitations Section beneficial. When the FAA later makes a certain AFM’s where the forward look of the AFM. The revised sentence reads finding of an unsafe condition in an windshear system is addressed. as follows: ‘‘If the visual cues specified aircraft and issues an AD, it means that in the Limitations Section of the AFM the original cost beneficial level of Comment 55. Request To Revise for identifying severe icing conditions safety is no longer being achieved and Procedures for Exiting the Severe Icing are observed, accomplish the that the required actions are necessary Environment: Include Airplane-Specific following.’’ (Operators should note that, to restore that level of safety. Because Instructions for Aerospatiale airplanes, the final rule this level of safety has already been One commenter suggests that any specifies only one visual cue, which determined to be cost beneficial, and action that might be necessary to involves ice on the side window.) because the AD does not add an optimize aircraft performance and additional regulatory requirement that control in conditions of exceptional Comment 57. Request To Revise Cost Estimate increases the level of safety beyond icing, and exit from those conditions, what has been established by the type should be determined separately with Transport Canada requests that the design, a full cost-benefit analysis for each manufacturer; such procedures FAA provide an operational cost each AD would be redundant and should be contained in the AFM for estimate in the proposed AD’s. unnecessary. each airplane model. The FAA infers The FAA acknowledges the concern from this remark that the commenter of the commenter. The FAA recognizes Comment 58. Requests To Delay requests that the FAA revise the that, in accomplishing the requirements Issuance of the Final Rules procedures for exiting the severe icing of any AD, operators may incur other Three commenters request that the environment in each final rule to costs in addition to the ‘‘direct’’ costs FAA extend the comment period for the include airplane-specific instructions. that are reflected in the cost analysis proposed rules by 90 days. Each of the The FAA agrees that procedures presented in the AD preamble. commenters request the extension in obtained from each individual However, the cost analysis in AD order to complete a comprehensive manufacturer should be considered and rulemaking actions typically only analysis of this issue. The commenters included in the final rules, if includes such direct costs. In the case of state their involvement in focusing on appropriate. All manufacturers have these AD’s, for example, the ‘‘* * * other recent rulemaking activity, been provided with an opportunity to requirements are to revise the AFM to including the Commuter Rule, flight submit such procedures in response to include certain information. How crewmember training requirements, and the proposed rules. Some manufacturers operators actually ‘‘implement’’ that proposed rules covering flight crew requested changes to the final rules. The information thereafter (once it is placed flight, duty and test requirements FAA has revised the final rules for those in the AFM) may vary greatly among ** *’’ as a reason that did not allow requests that were substantiated them. complete analysis of the proposed AD’s. adequately. Following issuance of the Further, because AD’s require specific One commenter requests that final rules, the FAA would consider a actions to address specific unsafe implementation of the AD’s be deferred request to include additional changes to conditions, they appear to impose costs until further discussion with industry the AFM revisions, in accordance with that would not otherwise be borne by has been undertaken. the provisions of these AD’s, provided operators. However, because of the The FAA has reviewed these requests that adequate justification is presented general obligation of operators to and, in consideration of the importance to support such a request. maintain and operate aircraft in an and need for dissemination of this airworthy condition, this appearance is important information to the aviation Comment 56. Revision of Procedures for deceptive. Attributing those costs solely community, does not concur that the Exiting the Severe Icing Environment to the issuance of this AD is unrealistic comment period should be extended or The FAA has re-examined the section because, in the interest of maintaining issuance of the final rules be deferred titled ‘‘Procedures for exiting the severe and operating safe aircraft, prudent until a later date. Issuing the final rules icing environment’’ in paragraph (a)(2) operators would accomplish the will ensure that the information is of the proposals. As proposed, that required actions even if they were not available, understood, and implemented section states that if the visual cues used required to do so by the AD. In any case, by the aviation community before the for identifying ‘‘possible’’ freezing rain the FAA has determined that direct and next icing season. For these reasons, the or freezing drizzle conditions are incidental costs are still outweighed by FAA has determined that it is observed, the flight crew should follow the safety benefits of the AD. imperative that the information and the procedures specified for exiting The FAA points out that it is not actions contained in these final rules be those conditions. The FAA did not required to do a full cost-benefit incorporated into the operators’ AFM’s intend that the flight crew use the analysis for each AD. AD’s were immediately. procedures for exiting the severe icing explicitly exempted from the Office of environment when the weather Management and Budget (OMB) Conclusion conditions specified in paragraph (a)(2) coordination process described in After careful review of the available of these AD’s are observed. The FAA’s Section 6 of that Executive Order. As a data, including the comments noted intent is that the flight crew use those matter of law, in order to be airworthy, above, the FAA has determined that air procedures only when the visual cues an aircraft must conform to its type safety and the public interest require the 20666 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations adoption of the rule with the changes Regulatory Impact AD. For airplanes that have been modified, altered, or repaired so that the performance previously described. The FAA has The regulations adopted herein will determined that these changes will of the requirements of this AD is affected, the not have substantial direct effects on the owner/operator must request approval for an neither increase the economic burden States, on the relationship between the alternative method of compliance in on any operator nor increase the scope national government and the States, or accordance with paragraph (d) of this AD. of the AD. on the distribution of power and The request should include an assessment of the effect of the modification, alteration, or Cost Impact responsibilities among the various levels of government. Therefore, in repair on the unsafe condition addressed by this AD; and, if the unsafe condition has not The FAA estimates that 158 accordance with Executive Order 12612, been eliminated, the request should include Aerospatiale Model ATR–42 and ATR– it is determined that this final rule does specific proposed actions to address it. 72 series airplanes of U.S. registry will not have sufficient federalism Compliance: Required as indicated, unless be affected by this AD, that it will take implications to warrant the preparation accomplished previously. approximately 1 work hour per airplane of a Federalism Assessment. To minimize the potential hazards to accomplish the required actions, and For the reasons discussed above, I associated with operating the airplane in that the average labor rate is $60 per certify that this action (1) is not a severe icing conditions by providing more work hour. Based on these figures, the ‘‘significant regulatory action’’ under clearly defined procedures and limitations cost impact of the AD on U.S. operators Executive Order 12866; (2) is not a associated with such conditions, accomplish is estimated to be $9,480, or $60 per ‘‘significant rule’’ under DOT the following: Regulatory Policies and Procedures (44 (a) Within 30 days after the effective date airplane. of this AD, accomplish the requirements of FR 11034, February 26, 1979); and (3) For Model ATR–42 series airplanes, paragraphs (a)(1) and (a)(2) of this AD. will not have a significant economic Modification 4216 (or 4222), as required Note 2: Operators must initiate action to impact, positive or negative, on a in this AD, will take approximately 52 notify and ensure that flight crewmembers substantial number of small entities work hours per airplane to accomplish, are apprised of this change. under the criteria of the Regulatory at an average labor rate of $60 per work (1) Revise the FAA-approved Airplane Flexibility Act. A final evaluation has hour. Required parts will be supplied by Flight Manual (AFM) by incorporating the been prepared for this action and it is the manufacturer at no cost to operators. following into the Limitations Section of the contained in the Rules Docket. A copy AFM. This may be accomplished by inserting Based on these figures, the cost impact of it may be obtained from the Rules a copy of this AD in the AFM. on U.S. operators for this modification Docket at the location provided under is estimated to be $492,960, or $3,120 ‘‘WARNING the caption ADDRESSES. per airplane. Severe icing may result from For Model ATR–72 series airplanes, List of Subjects in 14 CFR Part 39 environmental conditions outside of those for which the airplane is certificated. Flight in Modification 4215 (or 4221), as required Air transportation, Aircraft, Aviation freezing rain, freezing drizzle, or mixed icing in this AD, will take approximately 96 safety, Incorporation by reference, conditions (supercooled liquid water and ice work hours per airplane to accomplish. Safety. crystals) may result in ice build-up on Required parts for this modification will Adoption of the Amendment protected surfaces exceeding the capability of be supplied by the manufacturer at no the ice protection system, or may result in ice cost to operators. Modification 4213, as Accordingly, pursuant to the forming aft of the protected surfaces. This ice required in this AD, would take authority delegated to me by the may not be shed using the ice protection approximately 4 work hours to Administrator, the Federal Aviation systems, and may seriously degrade the performance and controllability of the accomplish. Required parts will cost Administration amends part 39 of the Federal Aviation Regulations (14 CFR airplane. approximately $200 per airplane. The • During flight, severe icing conditions average labor rate for accomplishment of part 39) as follows: that exceed those for which the airplane is both modifications is $60 per work certificated shall be determined by the PART 39ÐAIRWORTHINESS hour. Based on these figures, the cost following visual cue. If the following visual DIRECTIVES impact on U.S. operators for these cue exists, immediately request priority modifications is estimated to be 1. The authority citation for part 39 handling from Air Traffic Control to facilitate $979,600, or $6,200 per airplane. a route or an altitude change to exit the icing continues to read as follows: conditions. The cost impact figures discussed Authority: 49 USC 106(g), 40113, 44701. —Severe icing is characterized by ice above are based on assumptions that no covering all or a substantial part of the § 39.13 [Amended] operator has yet accomplished any of unheated portion of either forward side the requirements of this AD action, and 2. Section 39.13 is amended by window, possibly associated with water that no operator would accomplish removing amendment 39–9152 (60 FR splashing and streaming on the those actions in the future if this AD 9616, February 21, 1995), and by adding windshield. were not adopted. a new airworthiness directive (AD), • Since the autopilot may mask tactile amendment 39–9604, to read as follows: cues that indicate adverse changes in In addition, the FAA recognizes that handling characteristics, use of the autopilot this AD may impose operational costs. 96–09–28 Aerospatiale: Amendment 39– is prohibited when the visual cue specified However, those costs are incalculable 9604. Docket 95–NM–146–AD. above exists, or when unusual lateral trim because the frequency of occurrence of Supersedes AD 95–02–51, Amendment requirements or autopilot trim warnings are 39–9152. the specified conditions and the encountered while the airplane is in icing associated additional flight time are Applicability: All Model ATR–42 and conditions. ATR–72 series airplanes, certificated in any • All icing detection lights must be indeterminable. Nevertheless, because category. of the severity of the unsafe condition operative prior to flight into icing conditions Note 1: This AD applies to each airplane at night. [NOTE: This supersedes any relief addressed, the FAA has determined that identified in the preceding applicability provided by the Master Minimum Equipment continued operational safety provision, regardless of whether it has been List (MMEL).]’’ necessitates the imposition of these otherwise modified, altered, or repaired in • The ice detector must be operative for costs. the area subject to the requirements of this flight into icing conditions. Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20667

(2) Revise the FAA-approved AFM by than those for which the airplane has been Aerospatiale Service Bulletin ATR72–30– incorporating the following into the certificated. 1023, Revision 1, dated April 10, 1995; Procedures Section of the AFM. This may be • Avoid abrupt and excessive ATR72–57–1015, Revision 1, dated April 10, accomplished by inserting a copy of this AD maneuvering that may exacerbate control 1995; and ATR72–57–1016, Revision 1, dated in the AFM. difficulties. April 10, 1995. Modification 4221 shall be • Do not engage the autopilot. accomplished in accordance with ‘‘THE FOLLOWING MAY BE USED AS • If the autopilot is engaged, hold the Aerospatiale Service Bulletin ATR72–57– SECONDARY INDICATIONS OF SEVERE control wheel firmly and disengage the 1015, Revision 1, dated April 10, 1995; and ICING CONDITIONS: autopilot. ATR72–57–1016, Revision 1, dated April 10, • • Unusually extensive ice accreted on the If an unusual roll response or 1995. uncommanded roll control movement is airframe in areas not normally observed to (c) For Model ATR–72 series airplanes: collect ice. observed, reduce the angle-of-attack. • Within 6 months after the effective date of • Accumulation of ice on the lower surface Do not extend flaps during extended operation in icing conditions. Operation with this AD, install Aerospatiale Modification of the wing aft of the protected area. 4213, ‘‘Flaps Extension Inhibition above VFE • flaps extended can result in a reduced wing Accumulation of ice on the propeller 15 deg.,’’ in accordance with Aerospatiale spinner farther aft than normally observed. angle-of-attack, with the possibility of ice forming on the upper surface further aft on Service Bulletin ATR72–27–1039, dated THE FOLLOWING WEATHER CONDITIONS the wing than normal, possibly aft of the January 12, 1995. MAY BE CONDUCIVE TO SEVERE IN- protected area. (d) An alternative method of compliance or FLIGHT ICING: • If the flaps are extended, do not retract adjustment of the compliance time that • them until the airframe is clear of ice. provides an acceptable level of safety may be Visible rain at temperatures below 0 • used if approved by the Manager, degrees Celsius ambient air temperature. Report these weather conditions to Air Traffic Control.’’ Standardization Branch, ANM–113, FAA, • Droplets that splash or splatter on impact (b) Within 6 months after the effective date Transport Airplane Directorate. Operators at temperatures below 0 degrees Celsius of this AD, modify the deicing boots on the shall submit their requests through an ambient air temperature. leading edges of the wing by accomplishing appropriate FAA Principal Operations PROCEDURES FOR EXITING THE SEVERE either paragraph (b)(1) or (b)(2) of this AD, as Inspector, who may add comments and then ICING ENVIRONMENT: applicable. send it to the Manager, Standardization (1) For Model ATR–42 series airplanes: These procedures are applicable to all Branch, ANM–113. Accomplish Aerospatiale Modification 4216 flight phases from takeoff to landing. Monitor Note 3: Information concerning the (during retrofit) or 4222 (during production), existence of approved alternative methods of the ambient air temperature. While severe as applicable. Modification 4216 shall be icing may form at temperatures as cold as compliance with this AD, if any, may be accomplished in accordance with obtained from the Standardization Branch, ¥18 degrees Celsius, increased vigilance is Aerospatiale Service Bulletin ATR42–30– ANM–113. warranted at temperatures around freezing 0059, Revision 1, dated April 10, 1995; and with visible moisture present. If the visual ATR42–57–0043, Revision 1, dated April 10, (e) Special flight permits may be issued in cue specified in the Limitations Section of 1995. Modification 4222 shall be accordance with sections 21.197 and 21.199 the AFM for identifying severe icing accomplished in accordance with of the Federal Aviation Regulations (14 CFR conditions is observed, accomplish the Aerospatiale Service Bulletin ATR42–57– 21.197 and 21.199) to operate the airplane to following: 0043, Revision 1, dated April 10, 1995. a location where the requirements of this AD • Immediately request priority handling (2) For Model ATR–72 series airplanes: can be accomplished. from Air Traffic Control to facilitate a route Accomplish Aerospatiale Modification 4215 (f) The modifications shall be done in or an altitude change to exit the severe icing (during retrofit) or 4221 (during production), accordance with the following Aerospatiale conditions in order to avoid extended as applicable. Modification 4215 shall be service bulletins, which contain the specified exposure to flight conditions more severe accomplished in accordance with effective pages:

Revision level Service bulletin referenced and date Page No. shown on page Date shown on page

ATR42±30±0059, Revision 1, April 10, 1995 ...... 1±3, 12±17, 31, 32 1 April 10, 1995. 4±11, 18±30, 33±36 Original March 20, 1995. ATR42±57±0043, Revision 1, April 10, 1995 ...... 1±4, 6, 8 1 April 10, 1995. 5, 7, 9±18 Original March 20, 1995. ATR72±30±1023, Revision 1, April 10, 1995 ...... 1, 2, 12±17, 33, 34 1 April 10, 1995. 3±11, 18±32, 35±38 Original March 20, 1995. ATR72±57±1015, Revision 1, April 10, 1995 ...... 1, 2, 5, 6, 8, 11, 15 1 April 10, 1995. 3, 4, 7, 9, 10, 12±14, 16 Original March 20, 1995. ATR72±57±1016, Revision 1, April 10, 1995 ...... 1, 2, 5, 6, 8, 11, 15 1 April 10, 1995. 3, 4, 7, 9, 10, 12±14 Original March 20, 1995.

The incorporation by reference of these may be inspected at the FAA, Transport Issued in Renton, Washington, on April 24, documents was approved by the Director of Airplane Directorate, 1601 Lind Avenue, 1996. the Federal Register in accordance with 5 SW., Renton, Washington; or at the Office of Ronald T. Wojnar, U.S.C. 552(a) and 1 CFR part 51. The the Federal Register, 800 North Capitol installation shall be done in accordance with Manager, Transport Airplane Directorate, Street, NW., suite 700, Washington, DC. Aircraft Certification Service. Aerospatiale Service Bulletin ATR72–27– (g) This amendment becomes effective on Certified to be a true copy of the original. 1039, dated January 12, 1995. The June 11, 1996. incorporation by reference of these Lori Aliment, documents was approved previously by the Certifying Officer. Director of the Federal Register, in accordance with 5 U.S.C. 552(a) and 1 CFR [FR Doc. 96–10744 Filed 5–1–96; 3:25 pm] part 51, as of March 8, 1995 (60 FR 9616, BILLING CODE 4910±13±P February 21, 1995). Copies may be obtained from Aerospatiale, 316 Route de Bayonne, 31060 Toulouse, Cedex 03, France. Copies 20668 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

14 CFR Part 39 Disposition of Comments ‘‘significant rule’’ under DOT For the disposition of comments on Regulatory Policies and Procedures (44 [Docket No. 96±NM±13±AD; Amendment this rulemaking action, see Docket No. FR 11034, February 26, 1979); and (3) 39±9594; AD 96±09±18] 95–NM–146–AD; Amendment 39–9604; will not have a significant economic AD 96–09–28, Airworthiness Directives; impact, positive or negative, on a RIN 2120±AA64 Aerospatiale Model ATR–42 and ATR– substantial number of small entities 72 Series Airplanes, published under the criteria of the Regulatory Airworthiness Directives; Jetstream elsewhere in this issue of the Federal Flexibility Act. A final evaluation has Model BAe ATP Airplanes Register. been prepared for this action and it is contained in the Rules Docket. A copy AGENCY: Federal Aviation Conclusion of it may be obtained from the Rules Administration, DOT. After careful review of the available Docket at the location provided under ACTION: Final rule. data, including the comments noted the caption ADDRESSES. above, the FAA has determined that air SUMMARY: This amendment adopts a List of Subjects in 14 CFR Part 39 new airworthiness directive (AD), safety and the public interest require the applicable to all Jetstream Model BAe adoption of the rule with the changes Air transportation, Aircraft, Aviation ATP airplanes, that requires revising the previously described. The FAA has safety, Safety. determined that these changes will Airplane Flight Manual (AFM) to Adoption of the Amendment provide the flight crew with recognition neither increase the economic burden cues for, and procedures for exiting on any operator nor increase the scope Accordingly, pursuant to the from, severe icing conditions, and to of the AD. authority delegated to me by the limit or prohibit the use of various flight Cost Impact Administrator, the Federal Aviation Administration amends part 39 of the control devices. This amendment is The FAA estimates that 10 airplanes prompted by results of a review of the Federal Aviation Regulations (14 CFR of U.S. registry will be affected by this part 39) as follows: requirements for certification of the AD, that it will take approximately 1 airplane in icing conditions, new work hour per airplane to accomplish PART 39ÐAIRWORTHINESS information on the icing environment, the required actions, and that the DIRECTIVES and icing data provided currently to the average labor rate is $60 per work hour. flight crews. The actions specified by Based on these figures, the cost impact 1. The authority citation for part 39 this AD are intended to minimize the of the AD on U.S. operators is estimated continues to read as follows: potential hazards associated with to be $600, or $60 per airplane. Authority: 49 USC 106(g), 40113, 44701. operating the airplane in severe icing The cost impact figure discussed conditions by providing more clearly above is based on assumptions that no § 39.13 [Amended] defined procedures and limitations operator has yet accomplished any of 2. Section 39.13 is amended by associated with such conditions. the requirements of this AD action, and adding the following new airworthiness EFFECTIVE DATE: June 11, 1996. that no operator would accomplish directive: ADDRESSES: Information pertaining to those actions in the future if this AD 96–09–18 Jetstream Aircraft Limited this rulemaking action may be examined were not adopted. (Formerly British Aerospace Commercial at the Federal Aviation Administration In addition, the FAA recognizes that Aircraft, Limited): Amendment 39–9594. (FAA), Transport Airplane Directorate, this AD may impose operational costs. Docket 96–NM–13–AD. Rules Docket, 1601 Lind Avenue, SW., However, those costs are incalculable Applicability: All Model BAe ATP Renton, Washington. because the frequency of occurrence of airplanes, certificated in any category. the specified conditions and the FOR FURTHER INFORMATION CONTACT: Note 1: This AD applies to each airplane associated additional flight time are William Schroeder, Aerospace Engineer, identified in the preceding applicability indeterminable. Nevertheless, because provision, regardless of whether it has been Standardization Branch, ANM–113, of the severity of the unsafe condition modified, altered, or repaired in the area FAA, Transport Airplane Directorate, addressed, the FAA has determined that subject to the requirements of this AD. For 1601 Lind Avenue, SW., Renton, continued operational safety airplanes that have been modified, altered, or Washington 98055–4056; telephone necessitates the imposition of these repaired so that the performance of the (206) 227–2148; fax (206) 227–1149. requirements of this AD is affected, the costs. SUPPLEMENTARY INFORMATION: A owner/operator must request approval for an proposal to amend part 39 of the Federal Regulatory Impact alternative method of compliance in accordance with paragraph (b) of this AD. Aviation Regulations (14 CFR part 39) to The regulations adopted herein will The request should include an assessment of include an airworthiness directive (AD) not have substantial direct effects on the the effect of the modification, alteration, or that is applicable to all Jetstream Model States, on the relationship between the repair on the unsafe condition addressed by BAe ATP airplanes was published in the national government and the States, or this AD; and, if the unsafe condition has not Federal Register on January 25, 1996 on the distribution of power and been eliminated, the request should include (61 FR 2144). That action proposed to responsibilities among the various specific proposed actions to address it. require revising the Airplane Flight levels of government. Therefore, in Compliance: Required as indicated, unless Manual (AFM) to specify procedures accordance with Executive Order 12612, accomplished previously. that would prohibit flight in freezing it is determined that this final rule does To minimize the potential hazards rain or freezing drizzle conditions (as not have sufficient federalism associated with operating the airplane in determined by certain visual cues), limit severe icing conditions by providing more implications to warrant the preparation clearly defined procedures and limitations or prohibit the use of various flight of a Federalism Assessment. associated with such conditions, accomplish control devices, and provide the flight For the reasons discussed above, I the following: crew with recognition cues for, and certify that this action (1) is not a (a) Within 30 days after the effective date procedures for exiting from, severe icing ‘‘significant regulatory action’’ under of this AD, accomplish the requirements of conditions. Executive Order 12866; (2) is not a paragraphs (a)(1) and (a)(2) of this AD. Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20669

Note 2: Operators must initiate action to • Immediately request priority handling SUMMARY: This amendment adopts a notify and ensure that flight crewmembers from Air Traffic Control to facilitate a route new airworthiness directive (AD), are apprised of this change. or an altitude change to exit the severe icing applicable to all Jetstream Model 4101 (1) Revise the FAA-approved Airplane conditions in order to avoid extended airplanes, that requires revising the Flight Manual (AFM) by incorporating the exposure to flight conditions more severe following into the Limitations Section of the than those for which the airplane has been Airplane Flight Manual (AFM) to AFM. This may be accomplished by inserting certificated. provide the flight crew with recognition a copy of this AD in the AFM. • Avoid abrupt and excessive cues for, and procedures for exiting maneuvering that may exacerbate control from, severe icing conditions, and to ‘‘WARNING difficulties. limit or prohibit the use of various flight • Severe icing may result from Do not engage the autopilot. control devices. This amendment is environmental conditions outside of those for • If the autopilot is engaged, hold the prompted by results of a review of the which the airplane is certificated. Flight in control wheel firmly and disengage the freezing rain, freezing drizzle, or mixed icing autopilot. requirements for certification of the conditions (supercooled liquid water and ice • If an unusual roll response or airplane in icing conditions, new crystals) may result in ice build-up on uncommanded roll control movement is information on the icing environment, protected surfaces exceeding the capability of observed, reduce the angle-of-attack. and icing data provided currently to the the ice protection system, or may result in ice • Do not extend flaps during extended flight crews. The actions specified by forming aft of the protected surfaces. This ice operation in icing conditions. Operation with this AD are intended to prevent or may not be shed using the ice protection flaps extended can result in a reduced wing systems, and may seriously degrade the minimize the potential hazards angle-of-attack, with the possibility of ice associated with operating the airplane performance and controllability of the forming on the upper surface further aft on airplane. in severe icing conditions by providing • the wing than normal, possibly aft of the During flight, severe icing conditions protected area. more clearly defined procedures and that exceed those for which the airplane is • If the flaps are extended, do not retract limitations associated with such certificated shall be determined by the them until the airframe is clear of ice. conditions. following visual cues. If one or more of these • Report these weather conditions to Air visual cues exists, immediately request Traffic Control.’’ EFFECTIVE DATE: June 11, 1996. priority handling from Air Traffic Control to (b) An alternative method of compliance or facilitate a route or an altitude change to exit ADDRESSES: Information pertaining to adjustment of the compliance time that the icing conditions. provides an acceptable level of safety may be this rulemaking action may be examined —Unusually extensive ice accreted on the used if approved by the Manager, at the Federal Aviation Administration airframe in areas not normally observed to Standardization Branch, ANM–113, FAA, (FAA), Transport Airplane Directorate, collect ice Transport Airplane Directorate. Operators Rules Docket, 1601 Lind Avenue, SW., —Accumulation of ice on the upper surface shall submit their requests through an Renton, Washington. of the wing aft of the protected area appropriate FAA Principal Operations • Since the autopilot may mask tactile Inspector, who may add comments and then FOR FURTHER INFORMATION CONTACT: cues that indicate adverse changes in send it to the Manager, Standardization William Schroeder, Aerospace Engineer, handling characteristics, use of the autopilot Branch, ANM–113. Standardization Branch, ANM–113, is prohibited when any of the visual cues Note 3: Information concerning the FAA, Transport Airplane Directorate, specified above exist, or when unusual lateral trim requirements or autopilot trim existence of approved alternative methods of 1601 Lind Avenue, SW., Renton, warnings are encountered while the airplane compliance with this AD, if any, may be Washington 98055–4056; telephone is in icing conditions. obtained from the Standardization Branch, (206) 227–2148; fax (206) 227–1149. • All icing detection lights must be ANM–113. operative prior to flight into icing conditions (c) Special flight permits may be issued in SUPPLEMENTARY INFORMATION: A at night. [NOTE: This supersedes any relief accordance with sections 21.197 and 21.199 proposal to amend part 39 of the Federal provided by the Master Minimum Equipment of the Federal Aviation Regulations (14 CFR Aviation Regulations (14 CFR part 39) to List (MMEL).]’’ 21.197 and 21.199) to operate the airplane to include an airworthiness directive (AD) (2) Revise the FAA-approved AFM by a location where the requirements of this AD that is applicable to all Jetstream Model incorporating the following into the can be accomplished. 4101 airplanes was published in the Procedures Section of the AFM. This may be (d) This amendment becomes effective on Federal Register on January 25, 1996 accomplished by inserting a copy of this AD June 11, 1996. in the AFM. (61 FR 2142). That action proposed to Issued in Renton, Washington, on April 24, require revising the Airplane Flight 1996. ‘‘THE FOLLOWING WEATHER Manual (AFM) to specify procedures CONDITIONS MAY BE CONDUCIVE TO Ronald T. Wojnar, that would prohibit flight in freezing SEVERE IN-FLIGHT ICING Manager, Transport Airplane Directorate, rain or freezing drizzle conditions (as • Aircraft Certification Service. Visible rain at temperatures below 0 determined by certain visual cues), limit degrees Celsius ambient air temperature. [FR Doc. 96–10775 Filed 5–1–96; 3:26 pm] • or prohibit the use of various flight Droplets that splash or splatter on impact BILLING CODE 4910±13±P at temperatures below 0 degrees Celsius control devices, and provide the flight ambient air temperature. crew with recognition cues for, and procedures for exiting from, severe icing PROCEDURES FOR EXITING THE SEVERE 14 CFR Part 39 ICING ENVIRONMENT conditions. [Docket No. 96±NM±14±AD; Amendment These procedures are applicable to all 39±9595; AD 96±09±19] Disposition of Comments flight phases from takeoff to landing. Monitor the ambient air temperature. While severe RIN 2120±AA64 For the disposition of comments on icing may form at temperatures as cold as this rulemaking action, see Docket No. ¥18 degrees Celsius, increased vigilance is Airworthiness Directives; Jetstream 95–NM–146–AD; Amendment 39–9604; warranted at temperatures around freezing Model 4101 Airplanes AD 96–09–28, Airworthiness Directives; with visible moisture present. If the visual cues specified in the Limitations Section of AGENCY: Federal Aviation Aerospatiale Model ATR–42 and ATR– the AFM for identifying severe icing Administration, DOT. 72 Series Airplanes, published elsewhere in this issue of the Federal conditions are observed, accomplish the ACTION: Final rule. following: Register. 20670 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

Conclusion contained in the Rules Docket. A copy which the airplane is certificated. Flight in freezing rain, freezing drizzle, or mixed icing After careful review of the available of it may be obtained from the Rules Docket at the location provided under conditions (supercooled liquid water and ice data, including the comments noted crystals) may result in ice build-up on ADDRESSES above, the FAA has determined that air the caption . protected surfaces exceeding the capability of safety and the public interest require the List of Subjects in 14 CFR Part 39 the ice protection system, or may result in ice forming aft of the protected surfaces. This ice adoption of the rule with the changes Air transportation, Aircraft, Aviation previously described. The FAA has may not be shed using the ice protection safety, Safety. systems, and may seriously degrade the determined that these changes will performance and controllability of the neither increase the economic burden Adoption of the Amendment airplane. on any operator nor increase the scope Accordingly, pursuant to the • During flight, severe icing conditions of the AD. authority delegated to me by the that exceed those for which the airplane is certificated shall be determined by the Cost Impact Administrator, the Federal Aviation Administration amends part 39 of the following visual cues. If one or more of these The FAA estimates that 35 airplanes visual cues exists, immediately request Federal Aviation Regulations (14 CFR priority handling from Air Traffic Control to of U.S. registry will be affected by this part 39) as follows: AD, that it will take approximately 1 facilitate a route or an altitude change to exit the icing conditions. work hour per airplane to accomplish PART 39ÐAIRWORTHINESS —Unusually extensive ice accreted on the the required actions, and that the DIRECTIVES airframe in areas not normally observed to average labor rate is $60 per work hour. 1. The authority citation for part 39 collect ice. Based on these figures, the cost impact —Accumulation of ice on the upper surface of the AD on U.S. operators is estimated continues to read as follows: of the wing aft of the protected area. to be $2,100, or $60 per airplane. Authority: 49 USC 106(g), 40113, 44701. —Accumulation of ice on the propeller The cost impact figure discussed spinner farther aft than normally observed. § 39.13 [Amended] above is based on assumptions that no • Since the autopilot may mask tactile operator has yet accomplished any of 2. Section 39.13 is amended by cues that indicate adverse changes in the requirements of this AD action, and adding the following new airworthiness handling characteristics, use of the autopilot directive: is prohibited when any of the visual cues that no operator would accomplish specified above exist, or when unusual those actions in the future if this AD 96–09–19 Jetstream Aircraft Limited: lateral trim requirements or autopilot trim were not adopted. Amendment 39–9595. Docket 96–NM– warnings are encountered while the airplane In addition, the FAA recognizes that 14–AD. is in icing conditions. this AD may impose operational costs. Applicability: All Model 4101 airplanes, • All icing detection lights must be However, those costs are incalculable certificated in any category. operative prior to flight into icing conditions because the frequency of occurrence of Note 1: This AD applies to each airplane at night. [NOTE: This supersedes any relief the specified conditions and the identified in the preceding applicability provided by the Master Minimum Equipment List (MMEL).]’’ associated additional flight time are provision, regardless of whether it has been modified, altered, or repaired in the area (2) Revise the FAA-approved AFM by indeterminable. Nevertheless, because subject to the requirements of this AD. For incorporating the following into the of the severity of the unsafe condition airplanes that have been modified, altered, or Procedures Section of the AFM. This may be addressed, the FAA has determined that repaired so that the performance of the accomplished by inserting a copy of this AD continued operational safety requirements of this AD is affected, the in the AFM. necessitates the imposition of these owner/operator must request approval for an ‘‘THE FOLLOWING WEATHER costs. alternative method of compliance in CONDITIONS MAY BE CONDUCIVE TO accordance with paragraph (b) of this AD. SEVERE IN-FLIGHT ICING Regulatory Impact The request should include an assessment of • Visible rain at temperatures below 0 The regulations adopted herein will the effect of the modification, alteration, or repair on the unsafe condition addressed by degrees Celsius ambient air temperature. • not have substantial direct effects on the this AD; and, if the unsafe condition has not Droplets that splash or splatter on impact States, on the relationship between the been eliminated, the request should include at temperatures below 0 degrees Celsius national government and the States, or specific proposed actions to address it. ambient air temperature. on the distribution of power and Compliance: Required as indicated, unless PROCEDURES FOR EXITING THE SEVERE responsibilities among the various accomplished previously. ICING ENVIRONMENT levels of government. Therefore, in To minimize the potential hazards These procedures are applicable to all accordance with Executive Order 12612, associated with operating the airplane in flight phases from takeoff to landing. Monitor it is determined that this final rule does severe icing conditions by providing more the ambient air temperature. While severe not have sufficient federalism clearly defined procedures and limitations icing may form at temperatures as cold as implications to warrant the preparation associated with such conditions, accomplish ¥18 degrees Celsius, increased vigilance is the following: warranted at temperatures around freezing of a Federalism Assessment. (a) Within 30 days after the effective date For the reasons discussed above, I with visible moisture present. If the visual of this AD, accomplish the requirements of cues specified in the Limitations Section of certify that this action (1) is not a paragraphs (a)(1) and (a)(2) of this AD. the AFM for identifying severe icing ‘‘significant regulatory action’’ under Note 2: Operators must initiate action to conditions are observed, accomplish the Executive Order 12866; (2) is not a notify and ensure that flight crewmembers following: ‘‘significant rule’’ under DOT are apprised of this change. • Immediately request priority handling Regulatory Policies and Procedures (44 (1) Revise the FAA-approved Airplane from Air Traffic Control to facilitate a route FR 11034, February 26, 1979); and (3) Flight Manual (AFM) by incorporating the or an altitude change to exit the severe icing will not have a significant economic following into the Limitations Section of the conditions in order to avoid extended impact, positive or negative, on a AFM. This may be accomplished by inserting exposure to flight conditions more severe a copy of this AD in the AFM. than those for which the airplane has been substantial number of small entities certificated. under the criteria of the Regulatory ‘‘WARNING • Avoid abrupt and excessive Flexibility Act. A final evaluation has Severe icing may result from maneuvering that may exacerbate control been prepared for this action and it is environmental conditions outside of those for difficulties. Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20671

• Do not engage the autopilot. conditions, and to limit or prohibit the on any operator nor increase the scope • If the autopilot is engaged, hold the use of various flight control devices. of the AD. control wheel firmly and disengage the This amendment is prompted by results Cost Impact autopilot. of a review of the requirements for • If an unusual roll response or certification of the airplane in icing Currently, there are no Model HS 748 uncommanded roll control movement is series airplanes on the U.S. Register. observed, reduce the angle-of-attack. conditions, new information on the • Do not extend flaps during extended icing environment, and icing data However, should an affected airplane be operation in icing conditions. Operation with provided currently to the flight crews. imported and placed on the U.S. flaps extended can result in a reduced wing The actions specified by this AD are Register in the future, it would require angle-of-attack, with the possibility of ice intended to minimize the potential approximately 1 work hour to forming on the upper surface further aft on hazards associated with operating the accomplish the required actions, at an the wing than normal, possibly aft of the airplane in severe icing conditions by average labor rate of $60 per work hour. protected area. Based on these figures, the cost impact • providing more clearly defined If the flaps are extended, do not retract of this AD would be $60 per airplane. them until the airframe is clear of ice. procedures and limitations associated • with such conditions. In addition, the FAA recognizes that Report these weather conditions to Air this AD may impose operational costs. Traffic Control. EFFECTIVE DATE: June 11, 1996. However, those costs are incalculable (b) An alternative method of compliance or ADDRESSES: Information pertaining to because the frequency of occurrence of adjustment of the compliance time that this rulemaking action may be examined the specified conditions and the provides an acceptable level of safety may be at the Federal Aviation Administration associated additional flight time are used if approved by the Manager, (FAA), Transport Airplane Directorate, Standardization Branch, ANM–113, FAA, indeterminable. Nevertheless, because Rules Docket, 1601 Lind Avenue, SW., Transport Airplane Directorate. Operators of the severity of the unsafe condition Renton, Washington. shall submit their requests through an addressed, the FAA has determined that appropriate FAA Principal Operations FOR FURTHER INFORMATION CONTACT: continued operational safety Inspector, who may add comments and then William Schroeder, Aerospace Engineer, necessitates the imposition of these send it to the Manager, Standardization Standardization Branch, ANM–113, costs. Branch, ANM–113. FAA, Transport Airplane Directorate, Note 3: Information concerning the 1601 Lind Avenue, SW., Renton, Regulatory Impact existence of approved alternative methods of Washington 98055–4056; telephone The regulations adopted herein will compliance with this AD, if any, may be (206) 227–2148; fax (206) 227–1149. obtained from the Standardization Branch, not have substantial direct effects on the ANM–113. SUPPLEMENTARY INFORMATION: A States, on the relationship between the (c) Special flight permits may be issued in proposal to amend part 39 of the Federal national government and the States, or accordance with sections 21.197 and 21.199 Aviation Regulations (14 CFR part 39) to on the distribution of power and of the Federal Aviation Regulations (14 CFR include an airworthiness directive (AD) responsibilities among the various 21.197 and 21.199) to operate the airplane to that is applicable to all British levels of government. Therefore, in a location where the requirements of this AD Aerospace Model HS 748 series accordance with Executive Order 12612, can be accomplished. airplanes was published in the Federal it is determined that this final rule does (d) This amendment becomes effective on Register on January 25, 1996 (61 FR not have sufficient federalism June 11, 1996. 2139). That action proposed to require implications to warrant the preparation Issued in Renton, Washington, on April 24, revising the Airplane Flight Manual of a Federalism Assessment. 1996. (AFM) to specify procedures that would For the reasons discussed above, I Ronald T. Wojnar, prohibit flight in freezing rain or certify that this action (1) is not a Manager, Transport Airplane Directorate, freezing drizzle conditions (as ‘‘significant regulatory action’’ under Aircraft Certification Service. determined by certain visual cues), limit Executive Order 12866; (2) is not a [FR Doc. 96–10777 Filed 5–1–96; 3:26 pm] or prohibit the use of various flight ‘‘significant rule’’ under DOT BILLING CODE 4910±13±P control devices, and provide the flight Regulatory Policies and Procedures (44 crew with recognition cues for, and FR 11034, February 26, 1979); and (3) procedures for exiting from, severe icing will not have a significant economic 14 CFR Part 39 conditions. impact, positive or negative, on a substantial number of small entities [Docket No. 96±NM±15±AD; Amendment Disposition of Comments 39±9596; AD 96±09±20] under the criteria of the Regulatory For the disposition of comments on Flexibility Act. A final evaluation has RIN 2120±AA64 this rulemaking action, see Docket No. been prepared for this action and it is 95–NM–146–AD; Amendment 39–9604; Airworthiness Directives; British contained in the Rules Docket. A copy AD 96–09–28, Airworthiness Directives; Aerospace Model HS 748 Series of it may be obtained from the Rules Aerospatiale Model ATR–42 and ATR– Airplanes Docket at the location provided under 72 Series Airplanes, published the caption ADDRESSES. AGENCY: Federal Aviation elsewhere in this issue of the Federal Administration, DOT. Register. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation ACTION: Final rule. Conclusion safety, Safety. SUMMARY: This amendment adopts a After careful review of the available new airworthiness directive (AD), data, including the comments noted Adoption of the Amendment applicable to all British Aerospace above, the FAA has determined that air Accordingly, pursuant to the Model HS 748 series airplanes, that safety and the public interest require the authority delegated to me by the requires revising the Airplane Flight adoption of the rule with the changes Administrator, the Federal Aviation Manual (AFM) to provide the flight previously described. The FAA has Administration amends part 39 of the crew with recognition cues for, and determined that these changes will Federal Aviation Regulations (14 CFR procedures for exiting from, severe icing neither increase the economic burden part 39) as follows: 20672 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

PART 39ÐAIRWORTHINESS facilitate a route or an altitude change to exit (b) An alternative method of compliance or DIRECTIVES the icing conditions. adjustment of the compliance time that —Unusually extensive ice accreted on the provides an acceptable level of safety may be 1. The authority citation for part 39 airframe in areas not normally observed to used if approved by the Manager, continues to read as follows: collect ice Standardization Branch, ANM–113, FAA, Transport Airplane Directorate. Operators Authority: 49 USC 106(g), 40113, 44701. —Accumulation of ice on the upper surface of the wing aft of the protected area shall submit their requests through an § 39.13 [Amended] • Since the autopilot may mask tactile appropriate FAA Principal Operations Inspector, who may add comments and then 2. Section 39.13 is amended by cues that indicate adverse changes in handling characteristics, use of the autopilot send it to the Manager, Standardization adding the following new airworthiness Branch, ANM–113. directive: is prohibited when any of the visual cues specified above exist, or when unusual Note 3: Information concerning the 96–09–20 Jetstream Aircraft Limited lateral trim requirements or autopilot trim existence of approved alternative methods of (Formerly British Aerospace, Aircraft warnings are encountered while the airplane compliance with this AD, if any, may be Group): Amendment 39–9596. Docket is in icing conditions. obtained from the Standardization Branch, 96–NM–15–AD. • All icing detection lights must be ANM–113. Applicability: All Model HS 748 series operative prior to flight into icing conditions (c) Special flight permits may be issued in airplanes, certificated in any category. at night. [NOTE: This supersedes any relief accordance with sections 21.197 and 21.199 Note 1: This AD applies to each airplane provided by the Master Minimum Equipment of the Federal Aviation Regulations (14 CFR identified in the preceding applicability List (MMEL).]’’ 21.197 and 21.199) to operate the airplane to provision, regardless of whether it has been (2) Revise the FAA-approved AFM by a location where the requirements of this AD modified, altered, or repaired in the area incorporating the following into the can be accomplished. subject to the requirements of this AD. For Procedures Section of the AFM. This may be (d) This amendment becomes effective on airplanes that have been modified, altered, or accomplished by inserting a copy of this AD June 11, 1996. repaired so that the performance of the in the AFM. Issued in Renton, Washington, on April 24, requirements of this AD is affected, the ‘‘THE FOLLOWING WEATHER 1996. owner/operator must request approval for an CONDITIONS MAY BE CONDUCIVE TO Ronald T. Wojnar alternative method of compliance in SEVERE IN-FLIGHT ICING Manager, Transport Airplane Directorate, accordance with paragraph (b) of this AD. • Visible rain at temperatures below 0 Aircraft Certification Service. The request should include an assessment of degrees Celsius ambient air temperature. the effect of the modification, alteration, or [FR Doc. 96–10776 Filed 5–1–96; 3:26 pm] • Droplets that splash or splatter on impact repair on the unsafe condition addressed by BILLING CODE 4910±13±P at temperatures below 0 degrees Celsius this AD; and, if the unsafe condition has not ambient air temperature. been eliminated, the request should include specific proposed actions to address it. PROCEDURES FOR EXITING THE SEVERE 14 CFR Part 39 ICING ENVIRONMENT Compliance: Required as indicated, unless [Docket No. 96±NM±16±AD; Amendment accomplished previously. These procedures are applicable to all 39±9597; AD 96±09±21] To minimize the potential hazards flight phases from takeoff to landing. Monitor associated with operating the airplane in the ambient air temperature. While severe RIN 2120±AA64 severe icing conditions by providing more icing may form at temperatures as cold as -18 clearly defined procedures and limitations degrees Celsius, increased vigilance is Airworthiness Directives; Saab Model associated with such conditions, accomplish warranted at temperatures around freezing SAAB SF340A, SAAB 340B, and SAAB the following: with visible moisture present. If the visual 2000 Series Airplanes (a) Within 30 days after the effective date cues specified in the Limitations Section of of this AD, accomplish the requirements of the AFM for identifying severe icing AGENCY: Federal Aviation paragraphs (a)(1) and (a)(2) of this AD. conditions are observed, accomplish the Administration, DOT. Note 2: Operators must initiate action to following: ACTION: Final rule. notify and ensure that flight crewmembers • Immediately request priority handling are apprised of this change. from Air Traffic Control to facilitate a route SUMMARY: This amendment adopts a (1) Revise the FAA-approved Airplane or an altitude change to exit the severe icing new airworthiness directive (AD), Flight Manual (AFM) by incorporating the conditions in order to avoid extended applicable to all Saab Model SAAB exposure to flight conditions more severe following into the Limitations Section of the SF340A, SAAB 340B, and SAAB 2000 AFM. This may be accomplished by inserting than those for which the airplane has been a copy of this AD in the AFM. certificated. series airplanes, that requires revising • Avoid abrupt and excessive the Airplane Flight Manual (AFM) to ‘‘WARNING maneuvering that may exacerbate control provide the flight crew with recognition Severe icing may result from difficulties. cues for, and procedures for exiting environmental conditions outside of those for • Do not engage the autopilot. from, severe icing conditions, and to which the airplane is certificated. Flight in • If the autopilot is engaged, hold the limit or prohibit the use of various flight freezing rain, freezing drizzle, or mixed icing control wheel firmly and disengage the control devices. This amendment is conditions (supercooled liquid water and ice autopilot. prompted by results of a review of the crystals) may result in ice build-up on • If an unusual roll response or protected surfaces exceeding the capability of uncommanded roll control movement is requirements for certification of the the ice protection system, or may result in ice observed, reduce the angle-of-attack. airplane in icing conditions, new forming aft of the protected surfaces. This ice • Do not extend flaps during extended information on the icing environment, may not be shed using the ice protection operation in icing conditions. Operation with and icing data provided currently to the systems, and may seriously degrade the flaps extended can result in a reduced wing flight crews. The actions specified by performance and controllability of the angle-of-attack, with the possibility of ice this AD are intended to minimize the airplane. forming on the upper surface further aft on potential hazards associated with • During flight, severe icing conditions the wing than normal, possibly aft of the operating the airplane in severe icing that exceed those for which the airplane is protected area. conditions by providing more clearly certificated shall be determined by the • If the flaps are extended, do not retract following visual cues. If one or more of these them until the airframe is clear of ice. defined procedures and limitations visual cues exists, immediately request • Report these weather conditions to Air associated with such conditions. priority handling from Air Traffic Control to Traffic Control.’’ EFFECTIVE DATE: June 11, 1996. Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20673

ADDRESSES: Information pertaining to that no operator would accomplish § 39.13 [Amended] this rulemaking action may be examined those actions in the future if this AD 2. Section 39.13 is amended by at the Federal Aviation Administration were not adopted. adding the following new airworthiness (FAA), Transport Airplane Directorate, In addition, the FAA recognizes that directive: Rules Docket, 1601 Lind Avenue, SW., this AD may impose operational costs. 96–09–21 SAAB Aircraft AB: Amendment Renton, Washington. However, those costs are incalculable 39–9597. Docket 96–NM–16–AD. FOR FURTHER INFORMATION CONTACT: because the frequency of occurrence of Applicability: All Model SAAB SF340A, Ruth Harder, Aerospace Engineer, the specified conditions and the SAAB 340B, and SAAB 2000 series airplanes, Standardization Branch, ANM–113, associated additional flight time are certificated in any category. FAA, Transport Airplane Directorate, indeterminable. Nevertheless, because Note 1: This AD applies to each airplane 1601 Lind Avenue, SW., Renton, identified in the preceding applicability Washington 98055–4056; telephone of the severity of the unsafe condition provision, regardless of whether it has been (206) 227–1721; fax (206) 227–1149. addressed, the FAA has determined that modified, altered, or repaired in the area continued operational safety SUPPLEMENTARY INFORMATION: A subject to the requirements of this AD. For proposal to amend part 39 of the Federal necessitates the imposition of these airplanes that have been modified, altered, or costs. repaired so that the performance of the Aviation Regulations (14 CFR part 39) to requirements of this AD is affected, the include an airworthiness directive (AD) Regulatory Impact owner/operator must request approval for an that is applicable to all Saab Model alternative method of compliance in SAAB SF340A, SAAB 340B, and SAAB The regulations adopted herein will accordance with paragraph (b) of this AD. 2000 series airplanes was published in not have substantial direct effects on the The request should include an assessment of the Federal Register on January 25, States, on the relationship between the the effect of the modification, alteration, or 1996 (61 FR 2169). That action proposed national government and the States, or repair on the unsafe condition addressed by to require revising the Airplane Flight on the distribution of power and this AD; and, if the unsafe condition has not Manual (AFM) to specify procedures been eliminated, the request should include responsibilities among the various specific proposed actions to address it. that would prohibit flight in freezing levels of government. Therefore, in Compliance: Required as indicated, unless rain or freezing drizzle conditions (as accordance with Executive Order 12612, determined by certain visual cues), limit accomplished previously. it is determined that this final rule does To minimize the potential hazards or prohibit the use of various flight not have sufficient federalism associated with operating the airplane in control devices, and provide the flight implications to warrant the preparation severe icing conditions by providing more crew with recognition cues for, and of a Federalism Assessment. clearly defined procedures and limitations procedures for exiting from, severe icing associated with such conditions, accomplish conditions. For the reasons discussed above, I the following: certify that this action (1) is not a (a) Within 30 days after the effective date Disposition of Comments ‘‘significant regulatory action’’ under of this AD, accomplish the requirements of For the disposition of comments on Executive Order 12866; (2) is not a paragraphs (a)(1) and (a)(2) of this AD. this rulemaking action, see Docket No. ‘‘significant rule’’ under DOT Note 2: Operators must initiate action to 95–NM–146–AD; Amendment 39–9604; Regulatory Policies and Procedures (44 notify and ensure that flight crewmembers AD 96–09–28, Airworthiness Directives; FR 11034, February 26, 1979); and (3) are apprised of this change. Aerospatiale Model ATR–42 and ATR– will not have a significant economic (1) Revise the FAA-approved Airplane 72 Series Airplanes, published impact, positive or negative, on a Flight Manual (AFM) by incorporating the elsewhere in this issue of the Federal substantial number of small entities following into the Limitations Section of the Register. AFM. This may be accomplished by inserting under the criteria of the Regulatory a copy of this AD in the AFM. Conclusion Flexibility Act. A final evaluation has ‘‘WARNING After careful review of the available been prepared for this action and it is contained in the Rules Docket. A copy Severe icing may result from data, including the comments noted environmental conditions outside of those for above, the FAA has determined that air of it may be obtained from the Rules Docket at the location provided under which the airplane is certificated. Flight in safety and the public interest require the freezing rain, freezing drizzle, or mixed icing adoption of the rule with the changes the caption ADDRESSES. conditions (supercooled liquid water and ice previously described. The FAA has List of Subjects in 14 CFR Part 39 crystals) may result in ice build-up on determined that these changes will protected surfaces exceeding the capability of neither increase the economic burden Air transportation, Aircraft, Aviation the ice protection system, or may result in ice on any operator nor increase the scope safety, Safety. forming aft of the protected surfaces. This ice may not be shed using the ice protection of the AD. Adoption of the Amendment systems, and may seriously degrade the Cost Impact performance and controllability of the Accordingly, pursuant to the airplane. The FAA estimates that 224 airplanes • During flight, severe icing conditions of U.S. registry will be affected by this authority delegated to me by the Administrator, the Federal Aviation that exceed those for which the airplane is AD, that it will take approximately 1 certificated shall be determined by the work hour per airplane to accomplish Administration amends part 39 of the following visual cues. If one or more of these the required actions, and that the Federal Aviation Regulations (14 CFR visual cues exists, immediately request average labor rate is $60 per work hour. part 39) as follows: priority handling from Air Traffic Control to Based on these figures, the cost impact facilitate a route or an altitude change to exit PART 39ÐAIRWORTHINESS of the AD on U.S. operators is estimated the icing conditions. DIRECTIVES to be $13,440, or $60 per airplane. For Saab Model SAAB 2000 Series Airplanes The cost impact figure discussed Only above is based on assumptions that no 1. The authority citation for part 39 continues to read as follows: —Unusually extensive ice accreted on the operator has yet accomplished any of airframe in areas not normally observed to the requirements of this AD action, and Authority: 49 USC 106(g), 40113, 44701. collect ice. 20674 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

—Accumulation of ice on the upper surface • If the flaps are extended, do not retract providing more clearly defined of the wing aft of the protected area. them until the airframe is clear of ice. procedures and limitations associated • —Accumulation of ice on the propeller Report these weather conditions to Air with such conditions. spinner farther aft than normally observed. Traffic Control.’’ (b) An alternative method of compliance or EFFECTIVE DATE: June 11, 1996. For Saab Model SAAB SF340A and SAAB adjustment of the compliance time that ADDRESSES: Information pertaining to 340B Series Airplanes Only provides an acceptable level of safety may be this rulemaking action may be examined —Accumulation of ice on the upper surface used if approved by the Manager, at the Federal Aviation Administration of the wing aft of the protected area. Standardization Branch, ANM–113, FAA, (FAA), Transport Airplane Directorate, —Accumulation of ice on the propeller Transport Airplane Directorate. Operators Rules Docket, 1601 Lind Avenue, SW., shall submit their requests through an spinner farther aft than normally observed. Renton, Washington. • Since the autopilot may mask tactile appropriate FAA Principal Operations cues that indicate adverse changes in Inspector, who may add comments and then FOR FURTHER INFORMATION CONTACT: handling characteristics, use of the autopilot send it to the Manager, Standardization Gregory Dunn, Aerospace Engineer, is prohibited when any of the visual cues Branch, ANM–113. Standardization Branch, ANM–113, specified above exist, or when unusual Note 3: Information concerning the FAA, Transport Airplane Directorate, lateral trim requirements or autopilot trim existence of approved alternative methods of 1601 Lind Avenue, SW., Renton, warnings are encountered while the airplane compliance with this AD, if any, may be Washington 98055–4056; telephone is in icing conditions. obtained from the Standardization Branch, (206) 227–2799; fax (206) 227–1149. • All icing detection lights must be ANM–113. SUPPLEMENTARY INFORMATION: A operative prior to flight into icing conditions (c) Special flight permits may be issued in at night. [NOTE: This supersedes any relief accordance with sections 21.197 and 21.199 proposal to amend part 39 of the Federal provided by the Master Minimum Equipment of the Federal Aviation Regulations (14 CFR Aviation Regulations (14 CFR part 39) to List (MMEL).]’’ 21.197 and 21.199) to operate the airplane to include an airworthiness directive (AD) (2) Revise the FAA-approved AFM by a location where the requirements of this AD that is applicable to all CASA Model C– incorporating the following into the can be accomplished. 212 and CN–235 series airplanes was Procedures Section of the AFM. This may be (d) This amendment becomes effective on published in the Federal Register on accomplished by inserting a copy of this AD June 11, 1996. January 25, 1996 (61 FR 2166). That in the AFM. Issued in Renton, Washington, on April 24, action proposed to require revising the ‘‘THE FOLLOWING WEATHER 1996. Airplane Flight Manual (AFM) to CONDITIONS MAY BE CONDUCIVE TO Ronald T. Wojnar, specify procedures that would prohibit SEVERE IN-FLIGHT ICING Manager, Transport Airplane Directorate, flight in freezing rain or freezing drizzle • Visible rain at temperatures below 0 Aircraft Certification Service. conditions (as determined by certain degrees Celsius ambient air temperature. [FR Doc. 96–10772 Filed 5–1–96; 3:27 pm] visual cues), limit or prohibit the use of • Droplets that splash or splatter on BILLING CODE 4910±13±P various flight control devices, and impact at temperatures below 0 degrees provide the flight crew with recognition Celsius ambient air temperature. cues for, and procedures for exiting PROCEDURES FOR EXITING THE SEVERE 14 CFR Part 39 from, severe icing conditions. ICING ENVIRONMENT [Docket No. 96±NM±17±AD; Amendment Disposition of Comments These procedures are applicable to all 39±9598; AD 96±09±22] flight phases from takeoff to landing. Monitor For the disposition of comments on the ambient air temperature. While severe RIN 2120±AA64 this rulemaking action, see Docket No. icing may form at temperatures as cold as -18 95–NM–146–AD; Amendment 39–9604; degrees Celsius, increased vigilance is Airworthiness Directives; Construcciones Aeronauticas, S.A. AD 96–09–28, Airworthiness Directives; warranted at temperatures around freezing Aerospatiale Model ATR–42 and ATR– with visible moisture present. If the visual (CASA) Model C±212 and CN±235 cues specified in the Limitations Section of Series Airplanes 72 Series Airplanes, published the AFM for identifying severe icing elsewhere in this issue of the Federal conditions are observed, accomplish the AGENCY: Federal Aviation Register. Administration, DOT. following: Conclusion • Immediately request priority handling ACTION: Final rule. from Air Traffic Control to facilitate a route After careful review of the available or an altitude change to exit the severe icing SUMMARY: This amendment adopts a data, including the comments noted conditions in order to avoid extended new airworthiness directive (AD), above, the FAA has determined that air exposure to flight conditions more severe applicable to all CASA Model C–212 safety and the public interest require the than those for which the airplane has been and CN–235 series airplanes, that adoption of the rule with the changes certificated. • requires revising the Airplane Flight previously described. The FAA has Avoid abrupt and excessive Manual (AFM) to provide the flight maneuvering that may exacerbate control determined that these changes will difficulties. crew with recognition cues for, and neither increase the economic burden • Do not engage the autopilot. procedures for exiting from, severe icing on any operator nor increase the scope • If the autopilot is engaged, hold the conditions, and to limit or prohibit the of the AD. control wheel firmly and disengage the use of various flight control devices. autopilot. This amendment is prompted by results Cost Impact • If an unusual roll response or of a review of the requirements for The FAA estimates that 36 airplanes uncommanded roll control movement is certification of the airplane in icing of U.S. registry will be affected by this observed, reduce the angle-of-attack. • conditions, new information on the AD, that it will take approximately 1 Do not extend flaps during extended icing environment, and icing data work hour per airplane to accomplish operation in icing conditions. Operation with flaps extended can result in a reduced wing provided currently to the flight crews. the required actions, and that the angle-of- attack, with the possibility of ice The actions specified by this AD are average labor rate is $60 per work hour. forming on the upper surface further aft on intended to minimize the potential Based on these figures, the cost impact the wing than normal, possibly aft of the hazards associated with operating the of the AD on U.S. operators is estimated protected area. airplane in severe icing conditions by to be $2,160, or $60 per airplane. Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20675

The cost impact figure discussed § 39.13 [Amended] • Since the autopilot may mask tactile above is based on assumptions that no 2. Section 39.13 is amended by cues that indicate adverse changes in operator has yet accomplished any of adding the following new airworthiness handling characteristics, use of the autopilot the requirements of this AD action, and directive: is prohibited when any of the visual cues specified above exist, or when unusual that no operator would accomplish 96–09–22 CASA: Amendment 39–9598. lateral trim requirements or autopilot trim those actions in the future if this AD Docket 96–NM–17–AD. warnings are encountered while the airplane were not adopted. Applicability: All Model C–212 and CN– is in icing conditions. In addition, the FAA recognizes that 235 series airplanes, certificated in any • All icing detection lights must be this AD may impose operational costs. category. operative prior to flight into icing conditions However, those costs are incalculable Note 1: This AD applies to each airplane at night. [NOTE: This supersedes any relief because the frequency of occurrence of identified in the preceding applicability provided by the Master Minimum Equipment the specified conditions and the provision, regardless of whether it has been List (MMEL).]’’ associated additional flight time are modified, altered, or repaired in the area (2) Revise the FAA-approved AFM by indeterminable. Nevertheless, because subject to the requirements of this AD. For incorporating the following into the Procedures Section of the AFM. This may be of the severity of the unsafe condition airplanes that have been modified, altered, or repaired so that the performance of the accomplished by inserting a copy of this AD addressed, the FAA has determined that requirements of this AD is affected, the in the AFM. continued operational safety owner/operator must request approval for an ‘‘THE FOLLOWING WEATHER necessitates the imposition of these alternative method of compliance in CONDITIONS MAY BE CONDUCIVE TO costs. accordance with paragraph (b) of this AD. The request should include an assessment of SEVERE IN-FLIGHT ICING Regulatory Impact the effect of the modification, alteration, or • Visible rain at temperatures below 0 repair on the unsafe condition addressed by degrees Celsius ambient air temperature. The regulations adopted herein will • not have substantial direct effects on the this AD; and, if the unsafe condition has not Droplets that splash or splatter on been eliminated, the request should include impact at temperatures below 0 degrees States, on the relationship between the specific proposed actions to address it. Celsius ambient air temperature. national government and the States, or Compliance: Required as indicated, unless on the distribution of power and PROCEDURES FOR EXITING THE SEVERE accomplished previously. ICING ENVIRONMENT responsibilities among the various To minimize the potential hazards levels of government. Therefore, in associated with operating the airplane in These procedures are applicable to all accordance with Executive Order 12612, severe icing conditions by providing more flight phases from takeoff to landing. Monitor it is determined that this final rule does clearly defined procedures and limitations the ambient air temperature. While severe not have sufficient federalism associated with such conditions, accomplish icing may form at temperatures as cold as -18 degrees Celsius, increased vigilance is implications to warrant the preparation the following: (a) Within 30 days after the effective date warranted at temperatures around freezing of a Federalism Assessment. of this AD, accomplish the requirements of with visible moisture present. If the visual For the reasons discussed above, I paragraphs (a)(1) and (a)(2) of this AD. cues specified in the Limitations Section of certify that this action (1) is not a Note 2: Operators must initiate action to the AFM for identifying severe icing ‘‘significant regulatory action’’ under notify and ensure that flight crewmembers conditions are observed, accomplish the Executive Order 12866; (2) is not a are apprised of this change. following: • ‘‘significant rule’’ under DOT (1) Revise the FAA-approved Airplane Immediately request priority handling Regulatory Policies and Procedures (44 Flight Manual (AFM) by incorporating the from Air Traffic Control to facilitate a route FR 11034, February 26, 1979); and (3) following into the Limitations Section of the or an altitude change to exit the severe icing conditions in order to avoid extended will not have a significant economic AFM. This may be accomplished by inserting a copy of this AD in the AFM. exposure to flight conditions more severe impact, positive or negative, on a than those for which the airplane has been substantial number of small entities ‘‘WARNING certificated. under the criteria of the Regulatory Severe icing may result from • Avoid abrupt and excessive Flexibility Act. A final evaluation has environmental conditions outside of those for maneuvering that may exacerbate control been prepared for this action and it is which the airplane is certificated. Flight in difficulties. contained in the Rules Docket. A copy freezing rain, freezing drizzle, or mixed icing • Do not engage the autopilot. • of it may be obtained from the Rules conditions (supercooled liquid water and ice If the autopilot is engaged, hold the Docket at the location provided under crystals) may result in ice build-up on control wheel firmly and disengage the protected surfaces exceeding the capability of autopilot. the caption ADDRESSES. the ice protection system, or may result in ice • If an unusual roll response or List of Subjects in 14 CFR Part 39 forming aft of the protected surfaces. This ice uncommanded roll control movement is may not be shed using the ice protection observed, reduce the angle-of-attack. Air transportation, Aircraft, Aviation systems, and may seriously degrade the • Do not extend flaps during extended safety, Safety. performance and controllability of the operation in icing conditions. Operation with airplane. Adoption of the Amendment flaps extended can result in a reduced wing • During flight, severe icing conditions angle-of- attack, with the possibility of ice Accordingly, pursuant to the that exceed those for which the airplane is forming on the upper surface further aft on authority delegated to me by the certificated shall be determined by the the wing than normal, possibly aft of the Administrator, the Federal Aviation following visual cues. If one or more of these protected area. • Administration amends part 39 of the visual cues exists, immediately request If the flaps are extended, do not retract priority handling from Air Traffic Control to Federal Aviation Regulations (14 CFR them until the airframe is clear of ice. facilitate a route or an altitude change to exit • Report these weather conditions to Air part 39) as follows: the icing conditions. Traffic Control.’’ (b) An alternative method of compliance or PART 39ÐAIRWORTHINESS —Unusually extensive ice accreted on the airframe in areas not normally observed to adjustment of the compliance time that DIRECTIVES collect ice. provides an acceptable level of safety may be 1. The authority citation for part 39 —Accumulation of ice on the lower surface used if approved by the Manager, of the wing aft of the protected area. Standardization Branch, ANM–113, FAA, continues to read as follows: —Accumulation of ice on the propeller Transport Airplane Directorate. Operators Authority: 49 USC 106(g), 40113, 44701. spinner farther aft than normally observed. shall submit their requests through an 20676 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations appropriate FAA Principal Operations Standardization Branch, ANM–113, associated additional flight time are Inspector, who may add comments and then FAA, Transport Airplane Directorate, indeterminable. send it to the Manager, Standardization 1601 Lind Avenue, SW., Renton, Nevertheless, because of the severity Branch, ANM–113. Washington 98055–4056; telephone of the unsafe condition addressed, the Note 3: Information concerning the (206) 227–2796; fax (206) 227–1149. FAA has determined that continued existence of approved alternative methods of operational safety necessitates the compliance with this AD, if any, may be SUPPLEMENTARY INFORMATION: A obtained from the Standardization Branch, proposal to amend part 39 of the Federal imposition of these costs. ANM–113. Aviation Regulations (14 CFR part 39) to Regulatory Impact include an airworthiness directive (AD) (c) Special flight permits may be issued in The regulations adopted herein will accordance with sections 21.197 and 21.199 that is applicable to all Dornier Model of the Federal Aviation Regulations (14 CFR 328–100 series airplanes was published not have substantial direct effects on the 21.197 and 21.199) to operate the airplane to in the Federal Register on January 25, States, on the relationship between the a location where the requirements of this AD 1996 (61 FR 2157). That action proposed national government and the States, or can be accomplished. to require revising the Airplane Flight on the distribution of power and (d) This amendment becomes effective on Manual (AFM) to specify procedures responsibilities among the various June 11, 1996. that would prohibit flight in freezing levels of government. Therefore, in Issued in Renton, Washington, on April 24, rain or freezing drizzle conditions (as accordance with Executive Order 12612, 1996. determined by certain visual cues), limit it is determined that this final rule does Ronald T. Wojnar, or prohibit the use of various flight not have sufficient federalism Manager, Transport Airplane Directorate, control devices, and provide the flight implications to warrant the preparation Aircraft Certification Service crew with recognition cues for, and of a Federalism Assessment. [FR Doc. 96–10771 Filed 5–1–96; 3:27 pm] procedures for exiting from, severe icing For the reasons discussed above, I BILLING CODE 4910±13±P conditions. certify that this action (1) is not a ‘‘significant regulatory action’’ under Disposition of Comments Executive Order 12866; (2) is not a 14 CFR Part 39 For the disposition of comments on ‘‘significant rule’’ under DOT [Docket No. 96±NM±18±AD; Amendment this rulemaking action, see Docket No. Regulatory Policies and Procedures (44 39±9599; AD 96±09±23] 95–NM–146–AD; Amendment 39–9604; FR 11034, February 26, 1979); and (3) will not have a significant economic RIN 2120±AA64 AD 96–09–28, Airworthiness Directives; Aerospatiale Model ATR–42 and ATR– impact, positive or negative, on a substantial number of small entities Airworthiness Directives; Dornier 72 Series Airplanes, published under the criteria of the Regulatory Model 328±100 Series Airplanes elsewhere in this issue of the Federal Register. Flexibility Act. A final evaluation has AGENCY: Federal Aviation been prepared for this action and it is Administration, DOT. Conclusion contained in the Rules Docket. A copy ACTION: Final rule. After careful review of the available of it may be obtained from the Rules data, including the comments noted Docket at the location provided under SUMMARY: This amendment adopts a above, the FAA has determined that air the caption ADDRESSES. new airworthiness directive (AD), safety and the public interest require the List of Subjects in 14 CFR Part 39 applicable to all Dornier Model 328–100 adoption of the rule with the changes series airplanes, that requires revising previously described. The FAA has Air transportation, Aircraft, Aviation the Airplane Flight Manual (AFM) to determined that these changes will safety, Safety. provide the flight crew with recognition neither increase the economic burden Adoption of the Amendment cues for, and procedures for exiting on any operator nor increase the scope Accordingly, pursuant to the from, severe icing conditions, and to of the AD. limit or prohibit the use of various flight authority delegated to me by the control devices. This amendment is Cost Impact Administrator, the Federal Aviation Administration amends part 39 of the prompted by results of a review of the The FAA estimates that 31 airplanes Federal Aviation Regulations (14 CFR requirements for certification of the of U.S. registry will be affected by this part 39) as follows: airplane in icing conditions, new AD, that it will take approximately 1 information on the icing environment, work hour per airplane to accomplish and icing data provided currently to the PART 39ÐAIRWORTHINESS the required actions, and that the DIRECTIVES flight crews. The actions specified by average labor rate is $60 per work hour. this AD are intended to minimize the Based on these figures, the cost impact 1. The authority citation for part 39 potential hazards associated with of the AD on U.S. operators is estimated continues to read as follows: operating the airplane in severe icing to be $1,860, or $60 per airplane. Authority: 49 USC 106(g), 40113, 44701. conditions by providing more clearly The cost impact figure discussed defined procedures and limitations above is based on assumptions that no § 39.13 [Amended] associated with such conditions. operator has yet accomplished any of 2. Section 39.13 is amended by EFFECTIVE DATE: June 11, 1996. the requirements of this AD action, and adding the following new airworthiness ADDRESSES: Information pertaining to that no operator would accomplish directive: this rulemaking action may be examined those actions in the future if this AD 96–09–23 Dornier: Amendment 39–9599. at the Federal Aviation Administration were not adopted. Docket 96–NM–18–AD. (FAA), Transport Airplane Directorate, In addition, the FAA recognizes that Applicability: All Model Dornier 328–100 Rules Docket, 1601 Lind Avenue, SW., this AD may impose operational costs. series airplanes, certificated in any category. Renton, Washington. However, those costs are incalculable Note 1: This AD applies to each airplane FOR FURTHER INFORMATION CONTACT: because the frequency of occurrence of identified in the preceding applicability Connie Beane, Aerospace Engineer, the specified conditions and the provision, regardless of whether it has been Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20677 modified, altered, or repaired in the area (2) Revise the FAA-approved AFM by a location where the requirements of this AD subject to the requirements of this AD. For incorporating the following into the can be accomplished. airplanes that have been modified, altered, or Procedures Section of the AFM. This may be (d) This amendment becomes effective on repaired so that the performance of the accomplished by inserting a copy of this AD June 11, 1996. requirements of this AD is affected, the in the AFM. Issued in Renton, Washington, on April 24, owner/operator must request approval for an 1996. alternative method of compliance in ‘‘THE FOLLOWING WEATHER accordance with paragraph (b) of this AD. CONDITIONS MAY BE CONDUCIVE TO Ronald T. Wojnar, The request should include an assessment of SEVERE IN-FLIGHT ICING Manager, Transport Airplane Directorate, the effect of the modification, alteration, or • Visible rain at temperatures below 0 Aircraft Certification Service. repair on the unsafe condition addressed by degrees Celsius ambient air temperature. [FR Doc. 96–10773 Filed 5–1–96; 3:27 pm] • this AD; and, if the unsafe condition has not Droplets that splash or splatter on impact BILLING CODE 4910±13±P been eliminated, the request should include at temperatures below 0 degrees Celsius specific proposed actions to address it. ambient air temperature. Compliance: Required as indicated, unless PROCEDURES FOR EXITING THE SEVERE 14 CFR Part 39 accomplished previously. ICING ENVIRONMENT To minimize the potential hazards [Docket No. 96±NM±19±AD; Amendment associated with operating the airplane in These procedures are applicable to all 39±9600; AD 96±09±24] severe icing conditions by providing more flight phases from takeoff to landing. Monitor clearly defined procedures and limitations the ambient air temperature. While severe RIN: 2120±AA64 associated with such conditions, accomplish icing may form at temperatures as cold as -18 the following: degrees Celsius, increased vigilance is Airworthiness Directives; Empresa (a) Within 30 days after the effective date warranted at temperatures around freezing Brasileira de Aeronautica, S.A. of this AD, accomplish the requirements of with visible moisture present. If the visual (EMBRAER) Model EMB±120 Series paragraphs (a)(1) and (a)(2) of this AD. cues specified in the Limitations Section of Airplanes Note 2: Operators must initiate action to the AFM for identifying severe icing notify and ensure that flight crewmembers conditions are observed, accomplish the AGENCY: Federal Aviation are apprised of this change. following: Administration, DOT. • Immediately request priority handling (1) Revise the FAA-approved Airplane ACTION: Final rule. from Air Traffic Control to facilitate a route Flight Manual (AFM) by incorporating the following into the Limitations Section of the or an altitude change to exit the severe icing SUMMARY: This amendment adopts a AFM. This may be accomplished by inserting conditions in order to avoid extended new airworthiness directive (AD), a copy of this AD in the AFM. exposure to flight conditions more severe applicable to all EMBRAER Model than those for which the airplane has been EMB–120 series airplanes, that requires ‘‘WARNING certificated. • Avoid abrupt and excessive revising the Airplane Flight Manual Severe icing may result from (AFM) to provide the flight crew with environmental conditions outside of those for maneuvering that may exacerbate control which the airplane is certificated. Flight in difficulties. recognition cues for, and procedures for freezing rain, freezing drizzle, or mixed icing • Do not engage the autopilot. exiting from, severe icing conditions, conditions (supercooled liquid water and ice • If the autopilot is engaged, hold the and to limit or prohibit the use of crystals) may result in ice build-up on control wheel firmly and disengage the various flight control devices. This protected surfaces exceeding the capability of autopilot. amendment is prompted by results of a • the ice protection system, or may result in ice If an unusual roll response or review of the requirements for forming aft of the protected surfaces. This ice uncommanded roll control movement is certification of the airplane in icing observed, reduce the angle-of-attack. may not be shed using the ice protection conditions, new information on the systems, and may seriously degrade the • Do not extend flaps during extended performance and controllability of the operation in icing conditions. Operation with icing environment, and icing data airplane. flaps extended can result in a reduced wing provided currently to the flight crews. • During flight, severe icing conditions angle-of- attack, with the possibility of ice The actions specified by this AD are that exceed those for which the airplane is forming on the upper surface further aft on intended to minimize the potential certificated shall be determined by the the wing than normal, possibly aft of the hazards associated with operating the following visual cues. If one or more of these protected area. airplane in severe icing conditions by • visual cues exists, immediately request If the flaps are extended, do not retract providing more clearly defined priority handling from Air Traffic Control to them until the airframe is clear of ice. procedures and limitations associated facilitate a route or an altitude change to exit • Report these weather conditions to Air the icing conditions. Traffic Control.’’ with such conditions. —Unusually extensive ice accreted on the (b) An alternative method of compliance or EFFECTIVE DATE: June 11, 1996. airframe in areas not normally observed to adjustment of the compliance time that ADDRESSES: Information pertaining to collect ice. provides an acceptable level of safety may be this rulemaking action may be examined —Accumulation of ice on the lower surface used if approved by the Manager, at the Federal Aviation Administration of the wing aft of the protected area. Standardization Branch, ANM–113, FAA, (FAA), Transport Airplane Directorate, Transport Airplane Directorate. Operators —Accumulation of ice on the propeller Rules Docket, 1601 Lind Avenue, SW., spinner farther aft than normally observed. shall submit their requests through an Renton, Washington. • Since the autopilot may mask tactile appropriate FAA Principal Operations cues that indicate adverse changes in Inspector, who may add comments and then FOR FURTHER INFORMATION CONTACT: John handling characteristics, use of the autopilot send it to the Manager, Standardization W. McGraw, Aerospace Engineer, Flight is prohibited when any of the visual cues Branch, ANM–113. Test/Systems Branch, ACE–116A, FAA, specified above exist, or when unusual Note 3: Information concerning the Small Airplane Directorate, Atlanta lateral trim requirements or autopilot trim existence of approved alternative methods of Aircraft Certification Office, Campus warnings are encountered while the airplane compliance with this AD, if any, may be Building, 1701 Columbia Avenue, suite is in icing conditions. obtained from the Standardization Branch, • 2–160, College Park, Georgia 30337– All icing detection lights must be ANM–113. 2748; telephone (404) 305–7336; fax operative prior to flight into icing conditions (c) Special flight permits may be issued in at night. [NOTE: This supersedes any relief accordance with sections 21.197 and 21.199 (404) 305–7348. provided by the Master Minimum Equipment of the Federal Aviation Regulations (14 CFR SUPPLEMENTARY INFORMATION: A List (MMEL).]’’ 21.197 and 21.199) to operate the airplane to proposal to amend part 39 of the Federal 20678 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

Aviation Regulations (14 CFR part 39) to Regulatory Impact the effect of the modification, alteration, or include an airworthiness directive (AD) repair on the unsafe condition addressed by The regulations adopted herein will this AD; and, if the unsafe condition has not that is applicable to all EMBRAER not have substantial direct effects on the Model EMB–120 series airplanes was been eliminated, the request should include States, on the relationship between the specific proposed actions to address it. published in the Federal Register on national government and the States, or January 25, 1996 (61 FR 2163). That Compliance: Required as indicated, unless on the distribution of power and accomplished previously. action proposed to require revising the responsibilities among the various To minimize the potential hazards Airplane Flight Manual (AFM) to levels of government. Therefore, in associated with operating the airplane in specify procedures that would prohibit accordance with Executive Order 12612, severe icing conditions by providing more flight in freezing rain or freezing drizzle it is determined that this final rule does clearly defined procedures and limitations conditions (as determined by certain not have sufficient federalism associated with such conditions, accomplish visual cues), limit or prohibit the use of the following: implications to warrant the preparation (a) Within 30 days after the effective date various flight control devices, and of a Federalism Assessment. provide the flight crew with recognition of this AD, accomplish the requirements of For the reasons discussed above, I paragraphs (a)(1) and (a)(2) of this AD. cues for, and procedures for exiting certify that this action (1) is not a from, severe icing conditions. Note 2: Operators must initiate action to ‘‘significant regulatory action’’ under notify and ensure that flight crewmembers Disposition of Comments Executive Order 12866; (2) is not a are apprised of this change. ‘‘significant rule’’ under DOT (1) Revise the FAA-approved Airplane For the disposition of comments on Regulatory Policies and Procedures (44 Flight Manual (AFM) by incorporating the this rulemaking action, see Docket No. FR 11034, February 26, 1979); and (3) following into the Limitations Section of the 95–NM–146–AD; Amendment 39–9604; will not have a significant economic AFM. This may be accomplished by inserting AD 96–09–28, Airworthiness Directives; impact, positive or negative, on a a copy of this AD in the AFM. Aerospatiale Model ATR–42 and ATR– substantial number of small entities ‘‘WARNING 72 Series Airplanes, published under the criteria of the Regulatory elsewhere in this issue of the Federal Severe icing may result from Flexibility Act. A final evaluation has environmental conditions outside of those for Register. been prepared for this action and it is which the airplane is certificated. Flight in Conclusion contained in the Rules Docket. A copy freezing rain, freezing drizzle, or mixed icing of it may be obtained from the Rules conditions (supercooled liquid water and ice After careful review of the available Docket at the location provided under crystals) may result in ice build-up on data, including the comments noted the caption ADDRESSES. protected surfaces exceeding the capability of above, the FAA has determined that air the ice protection system, or may result in ice safety and the public interest require the List of Subjects in 14 CFR Part 39 forming aft of the protected surfaces. This ice adoption of the rule with the changes Air transportation, Aircraft, Aviation may not be shed using the ice protection previously described. The FAA has safety, Safety. systems, and may seriously degrade the performance and controllability of the determined that these changes will Adoption of the Amendment airplane. neither increase the economic burden • During flight, severe icing conditions on any operator nor increase the scope Accordingly, pursuant to the that exceed those for which the airplane is of the AD. authority delegated to me by the certificated shall be determined by the Administrator, the Federal Aviation following visual cues. If one or more of these Cost Impact Administration amends part 39 of the visual cues exists, immediately request The FAA estimates that 227 airplanes Federal Aviation Regulations (14 CFR priority handling from Air Traffic Control to of U.S. registry will be affected by this part 39) as follows: facilitate a route or an altitude change to exit AD, that it will take approximately 1 the icing conditions. work hour per airplane to accomplish PART 39ÐAIRWORTHINESS —Unusually extensive ice accreted on the the required actions, and that the DIRECTIVES airframe in areas not normally observed to collect ice. average labor rate is $60 per work hour. 1. The authority citation for part 39 —Accumulation of ice on the upper surface Based on these figures, the cost impact continues to read as follows: of the wing aft of the protected area. of the AD on U.S. operators is estimated Authority: 49 USC 106(g), 40113, 44701. —Accumulation of ice on the propeller to be $13,620, or $60 per airplane. spinner farther aft than normally observed. The cost impact figure discussed § 39.13 [Amended] • Since the autopilot may mask tactile above is based on assumptions that no 2. Section 39.13 is amended by cues that indicate adverse changes in operator has yet accomplished any of adding the following new airworthiness handling characteristics, use of the autopilot the requirements of this AD action, and directive: is prohibited when any of the visual cues specified above exist, or when unusual that no operator would accomplish 96–09–24 EMBRAER: Amendment 39– those actions in the future if this AD lateral trim requirements or autopilot trim 9600. Docket 96–NM–19–AD. warnings are encountered while the airplane were not adopted. Applicability: All Model EMB–120 series is in icing conditions. In addition, the FAA recognizes that airplanes, certificated in any category. • In icing conditions, use of flaps is this AD may impose operational costs. Note 1: This AD applies to each airplane restricted to takeoff, approach, and landing However, those costs are incalculable identified in the preceding applicability only. When the flaps have been extended for because the frequency of occurrence of provision, regardless of whether it has been approach or landing, they may not be the specified conditions and the modified, altered, or repaired in the area retracted unless the upper surface of the wing associated additional flight time are subject to the requirements of this AD. For aft of the protected area is clear of ice, or indeterminable. Nevertheless, because airplanes that have been modified, altered, or unless flap retraction is essential for go- around. of the severity of the unsafe condition repaired so that the performance of the requirements of this AD is affected, the • All icing detection lights must be addressed, the FAA has determined that owner/operator must request approval for an operative prior to flight into icing conditions continued operational safety alternative method of compliance in at night. [NOTE: This supersedes any relief necessitates the imposition of these accordance with paragraph (b) of this AD. provided by the Master Minimum Equipment costs. The request should include an assessment of List (MMEL).]’’ Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20679

(2) Revise the FAA-approved AFM by a location where the requirements of this AD include an airworthiness directive (AD) incorporating the following into the can be accomplished. that is applicable to all de Havilland Procedures Section of the AFM. This may be (d) This amendment becomes effective on Model DHC–7 and DHC–8 series accomplished by inserting a copy of this AD June 11, 1996. airplanes was published in the Federal in the AFM. Issued in Renton, Washington, on April 24, Register on January 25, 1996 (61 FR ‘‘THE FOLLOWING WEATHER 1996. 2154). That action proposed to require CONDITIONS MAY BE CONDUCIVE TO Ronald T. Wojnar, revising the Airplane Flight Manual SEVERE IN-FLIGHT ICING Manager, Transport Airplane Directorate, (AFM) to specify procedures that would • Visible rain at temperatures below 0 Aircraft Certification Service. prohibit flight in freezing rain or degrees Celsius ambient air temperature. [FR Doc. 96–10770 Filed 5–1–96; 3:28 pm] freezing drizzle conditions (as • Droplets that splash or splatter on impact BILLING CODE 4910±13±P determined by certain visual cues), limit at temperatures below 0 degrees Celsius ambient air temperature. or prohibit the use of various flight control devices, and provide the flight PROCEDURES FOR EXITING THE SEVERE 14 CFR Part 39 crew with recognition cues for, and ICING ENVIRONMENT [Docket No. 96±NM±20±AD; Amendment procedures for exiting from, severe icing These procedures are applicable to all 39±9601; AD 96±09±25] conditions. flight phases from takeoff to landing. Monitor the ambient air temperature. While severe RIN 2120±AA64 Disposition of Comments icing may form at temperatures as cold as For the disposition of comments on ¥18 degrees Celsius, increased vigilance is Airworthiness Directives; de Havilland warranted at temperatures around freezing Model DHC±7 and DHC±8 Series this rulemaking action, see Docket No. with visible moisture present. If the visual Airplanes 95–NM–146–AD; Amendment 39–9604; cues specified in the Limitations Section of AD 96–09–28, Airworthiness Directives; the AFM for identifying severe icing AGENCY: Federal Aviation Aerospatiale Model ATR–42 and ATR– conditions are observed, accomplish the Administration, DOT. 72 Series Airplanes, published following: ACTION: Final rule. elsewhere in this issue of the Federal • Immediately request priority handling Register. from Air Traffic Control to facilitate a route SUMMARY: This amendment adopts a or an altitude change to exit the severe icing new airworthiness directive (AD), Conclusion conditions in order to avoid extended applicable to all de Havilland Model After careful review of the available exposure to flight conditions more severe DCH–7 and DHC–8 series airplanes, that than those for which the airplane has been data, including the comments noted certificated. requires revising the Airplane Flight above, the FAA has determined that air • Avoid abrupt and excessive Manual (AFM) to provide the flight safety and the public interest require the maneuvering that may exacerbate control crew with recognition cues for, and adoption of the rule with the changes difficulties. procedures for exiting from, severe icing • previously described. The FAA has Do not engage the autopilot. conditions, and to limit or prohibit the determined that these changes will • If the autopilot is engaged, hold the use of various flight control devices. control wheel firmly and disengage the neither increase the economic burden This amendment is prompted by results on any operator nor increase the scope autopilot. of a review of the requirements for • If an unusual roll response or of the AD. uncommanded roll control movement is certification of the airplane in icing observed, reduce the angle-of-attack. conditions, new information on the Cost Impact • Do not extend flaps during extended icing environment, and icing data The FAA estimates that 183 airplanes operation in icing conditions. Operation with provided currently to the flight crews. of U.S. registry will be affected by this flaps extended can result in a reduced wing The actions specified by this AD are AD, that it will take approximately 1 angle-of-attack, with the possibility of ice intended to minimize the potential work hour per airplane to accomplish forming on the upper surface further aft on hazards associated with operating the the wing than normal, possibly aft of the the required actions, and that the airplane in severe icing conditions by average labor rate is $60 per work hour. protected area. providing more clearly defined • If the flaps are extended, do not retract Based on these figures, the cost impact them until the airframe is clear of ice. procedures and limitations associated of the AD on U.S. operators is estimated • Report these weather conditions to Air with such conditions. to be $10,980, or $60 per airplane. Traffic Control.’’ EFFECTIVE DATE: June 11, 1996. The cost impact figure discussed (b) An alternative method of compliance or ADDRESSES: Information pertaining to above is based on assumptions that no adjustment of the compliance time that this rulemaking action may be examined operator has yet accomplished any of provides an acceptable level of safety may be at the Federal Aviation Administration used if approved by the Manager, the requirements of this AD action, and Standardization Branch, ANM–113, FAA, (FAA), Transport Airplane Directorate, that no operator would accomplish Transport Airplane Directorate. Operators Rules Docket, 1601 Lind Avenue, SW., those actions in the future if this AD shall submit their requests through an Renton, Washington. were not adopted. appropriate FAA Principal Operations FOR FURTHER INFORMATION CONTACT: In addition, the FAA recognizes that Inspector, who may add comments and then Danko Kramar, Aerospace Engineer, this AD may impose operational costs. send it to the Manager, Standardization Systems and Flight Test Branch, ANE– However, those costs are incalculable Branch, ANM–113. 172, FAA, Engine and Propeller because the frequency of occurrence of Note 3: Information concerning the Directorate, New York Aircraft the specified conditions and the existence of approved alternative methods of Certification Office, 10 Fifth Street, associated additional flight time are compliance with this AD, if any, may be Third Floor, Valley Stream, New York obtained from the Standardization Branch, indeterminable. Nevertheless, because ANM–113. 11581; telephone (516) 256–7509; fax of the severity of the unsafe condition (516) 568–2716. (c) Special flight permits may be issued in addressed, the FAA has determined that accordance with sections 21.197 and 21.199 SUPPLEMENTARY INFORMATION: A continued operational safety of the Federal Aviation Regulations (14 CFR proposal to amend part 39 of the Federal necessitates the imposition of these 21.197 and 21.199) to operate the airplane to Aviation Regulations (14 CFR part 39) to costs. 20680 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

Regulatory Impact The request should include an assessment of ‘‘THE FOLLOWING WEATHER the effect of the modification, alteration, or CONDITIONS MAY BE CONDUCIVE TO The regulations adopted herein will repair on the unsafe condition addressed by SEVERE IN-FLIGHT ICING not have substantial direct effects on the this AD; and, if the unsafe condition has not • States, on the relationship between the Visible rain at temperatures below 0 been eliminated, the request should include degrees Celsius ambient air temperature. national government and the States, or specific proposed actions to address it. • Droplets that splash or splatter on impact on the distribution of power and Compliance: Required as indicated, unless at temperatures below 0 degrees Celsius responsibilities among the various accomplished previously. ambient air temperature. levels of government. Therefore, in To minimize the potential hazards PROCEDURES FOR EXITING THE SEVERE accordance with Executive Order 12612, associated with operating the airplane in ICING ENVIRONMENT it is determined that this final rule does severe icing conditions by providing more not have sufficient federalism clearly defined procedures and limitations These procedures are applicable to all implications to warrant the preparation associated with such conditions, accomplish flight phases from takeoff to landing. Monitor of a Federalism Assessment. the following: the ambient air temperature. While severe For the reasons discussed above, I (a) Within 30 days after the effective date icing may form at temperatures as cold as certify that this action (1) is not a of this AD, accomplish the requirements of ¥18 degrees Celsius, increased vigilance is paragraphs (a)(1) and (a)(2) of this AD. warranted at temperatures around freezing ‘‘significant regulatory action’’ under with visible moisture present. If the visual Note 2: Operators must initiate action to Executive Order 12866; (2) is not a cues specified in the Limitations Section of notify and ensure that flight crewmembers ‘‘significant rule’’ under DOT the AFM for identifying severe icing are apprised of this change. Regulatory Policies and Procedures (44 conditions are observed, accomplish the FR 11034, February 26, 1979); and (3) (1) Revise the FAA-approved Airplane following: will not have a significant economic Flight Manual (AFM) by incorporating the • Immediately request priority handling impact, positive or negative, on a following into the Limitations Section of the from Air Traffic Control to facilitate a route substantial number of small entities AFM. This may be accomplished by inserting or an altitude change to exit the severe icing a copy of this AD in the AFM. under the criteria of the Regulatory conditions in order to avoid extended Flexibility Act. A final evaluation has ‘‘WARNING exposure to flight conditions more severe than those for which the airplane has been been prepared for this action and it is Severe icing may result from contained in the Rules Docket. A copy certificated. environmental conditions outside of those for • Avoid abrupt and excessive of it may be obtained from the Rules which the airplane is certificated. Flight in maneuvering that may exacerbate control Docket at the location provided under freezing rain, freezing drizzle, or mixed icing difficulties. the caption ADDRESSES. conditions (supercooled liquid water and ice • Do not engage the autopilot. crystals) may result in ice build-up on • List of Subjects in 14 CFR Part 39 If the autopilot is engaged, hold the protected surfaces exceeding the capability of control wheel firmly and disengage the Air transportation, Aircraft, Aviation the ice protection system, or may result in ice autopilot. safety, Safety. forming aft of the protected surfaces. This ice • If an unusual roll response or may not be shed using the ice protection uncommanded roll control movement is Adoption of the Amendment systems, and may seriously degrade the observed, reduce the angle-of-attack. Accordingly, pursuant to the performance and controllability of the • Do not extend flaps during extended authority delegated to me by the airplane. operation in icing conditions. Operation with • During flight, severe icing conditions Administrator, the Federal Aviation flaps extended can result in a reduced wing that exceed those for which the airplane is Administration amends part 39 of the angle-of-attack, with the possibility of ice certificated shall be determined by the forming on the upper surface further aft on Federal Aviation Regulations (14 CFR following visual cues. If one or more of these part 39) as follows: the wing than normal, possibly aft of the visual cues exists, immediately request protected area. priority handling from Air Traffic Control to • If the flaps are extended, do not retract PART 39ÐAIRWORTHINESS facilitate a route or an altitude change to exit DIRECTIVES them until the airframe is clear of ice. the icing conditions. • Report these weather conditions to Air 1. The authority citation for part 39 —Unusually extensive ice accreted on the Traffic Control.’’ continues to read as follows: airframe in areas not normally observed to (b) An alternative method of compliance or collect ice. adjustment of the compliance time that Authority: 49 USC 106(g), 40113, 44701. —Accumulation of ice on the lower surface provides an acceptable level of safety may be § 39.13 [Amended] of the wing aft of the protected area. used if approved by the Manager, —Accumulation of ice on the propeller Standardization Branch, ANM–113, FAA, 2. Section 39.13 is amended by spinner farther aft than normally observed. Transport Airplane Directorate. Operators adding the following new airworthiness • Since the autopilot may mask tactile shall submit their requests through an directive: cues that indicate adverse changes in appropriate FAA Principal Operations 96–09–25 de Havilland, Inc.: Amendment handling characteristics, use of the autopilot Inspector, who may add comments and then 39–9601. Docket 96–NM–20–AD. is prohibited when any of the visual cues send it to the Manager, Standardization Branch, ANM–113. Applicability: All Model DHC–7 and DHC– specified above exist, or when unusual 8 series airplanes, certificated in any lateral trim requirements or autopilot trim Note 3: Information concerning the category. warnings are encountered while the airplane existence of approved alternative methods of Note 1: This AD applies to each airplane is in icing conditions. compliance with this AD, if any, may be • identified in the preceding applicability All icing detection lights must be obtained from the Standardization Branch, provision, regardless of whether it has been operative prior to flight into icing conditions ANM–113. modified, altered, or repaired in the area at night. [NOTE: This supersedes any relief (c) Special flight permits may be issued in subject to the requirements of this AD. For provided by the Master Minimum Equipment accordance with sections 21.197 and 21.199 airplanes that have been modified, altered, or List (MMEL).]’’ of the Federal Aviation Regulations (14 CFR repaired so that the performance of the (2) Revise the FAA-approved AFM by 21.197 and 21.199) to operate the airplane to requirements of this AD is affected, the incorporating the following into the a location where the requirements of this AD owner/operator must request approval for an Procedures Section of the AFM. This may be can be accomplished. alternative method of compliance in accomplished by inserting a copy of this AD (d) This amendment becomes effective on accordance with paragraph (b) of this AD. in the AFM. June 11, 1996. Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20681

Issued in Renton, Washington, on April 24, and 700 series airplanes, and Model F27 Regulatory Impact 1996. Mark 050 series airplanes, was The regulations adopted herein will Ronald T. Wojnar, published in the Federal Register on not have substantial direct effects on the Manager, Transport Airplane Directorate, January 25, 1996 (61 FR 2160). That States, on the relationship between the Aircraft Certification Service. action proposed to require revising the national government and the States, or [FR Doc. 96–10769 Filed 5–1–96; 3:28 pm] Airplane Flight Manual (AFM) to on the distribution of power and BILLING CODE 4910±13±P specify procedures that would prohibit responsibilities among the various flight in freezing rain or freezing drizzle levels of government. Therefore, in conditions (as determined by certain accordance with Executive Order 12612, 14 CFR Part 39 visual cues), limit or prohibit the use of it is determined that this final rule does [Docket No. 96±NM±21±AD; Amendment various flight control devices, and not have sufficient federalism 39±9602; AD 96±09±26] provide the flight crew with recognition implications to warrant the preparation RIN 2120±AA64 cues for, and procedures for exiting of a Federalism Assessment. from, severe icing conditions. For the reasons discussed above, I certify that this action (1) is not a Airworthiness Directives; Fokker Disposition of Comments Model F27 Mark 100, 200, 300, 400, 500, ‘‘significant regulatory action’’ under 600, and 700 Series Airplanes, and For the disposition of comments on Executive Order 12866; (2) is not a Model F27 Mark 050 Series Airplanes this rulemaking action, see Docket No. ‘‘significant rule’’ under DOT 95–NM–146–AD; Amendment 39–9604; Regulatory Policies and Procedures (44 AGENCY: Federal Aviation FR 11034, February 26, 1979); and (3) Administration, DOT. AD 96–09–28, Airworthiness Directives; Aerospatiale Model ATR–42 and ATR– will not have a significant economic ACTION: Final rule. 72 Series Airplanes, published impact, positive or negative, on a substantial number of small entities SUMMARY: This amendment adopts a elsewhere in this issue of the Federal under the criteria of the Regulatory new airworthiness directive (AD), Register. Flexibility Act. A final evaluation has applicable to all Fokker Model F27 Conclusion been prepared for this action and it is Mark 100, 200, 300, 400, 500, 600, and contained in the Rules Docket. A copy 700 series airplanes, and Model F27 After careful review of the available of it may be obtained from the Rules Mark 050 series airplanes, that requires data, including the comments noted Docket at the location provided under revising the Airplane Flight Manual above, the FAA has determined that air the caption ADDRESSES. (AFM) to provide the flight crew with safety and the public interest require the recognition cues for, and procedures for adoption of the rule with the changes List of Subjects in 14 CFR Part 39 exiting from, severe icing conditions, previously described. The FAA has Air transportation, Aircraft, Aviation and to limit or prohibit the use of determined that these changes will safety, Safety. various flight control devices. This neither increase the economic burden Adoption of the Amendment amendment is prompted by results of a on any operator nor increase the scope review of the requirements for of the AD. Accordingly, pursuant to the certification of the airplane in icing authority delegated to me by the conditions, new information on the Cost Impact Administrator, the Federal Aviation icing environment, and icing data Administration amends part 39 of the The FAA estimates that 34 airplanes provided currently to the flight crews. Federal Aviation Regulations (14 CFR of U.S. registry will be affected by this The actions specified by this AD are part 39) as follows: intended to minimize the potential AD, that it will take approximately 1 hazards associated with operating the work hour per airplane to accomplish PART 39ÐAIRWORTHINESS airplane in severe icing conditions by the required actions, and that the DIRECTIVES providing more clearly defined average labor rate is $60 per work hour. Based on these figures, the cost impact 1. The authority citation for part 39 procedures and limitations associated continues to read as follows: with such conditions. of the AD on U.S. operators is estimated to be $2,040, or $60 per airplane. Authority: 49 USC 106(g), 40113, 44701. EFFECTIVE DATE: June 11, 1996. ADDRESSES: Information pertaining to The cost impact figure discussed § 39.13 [Amended] this rulemaking action may be examined above is based on assumptions that no 2. Section 39.13 is amended by at the Federal Aviation Administration operator has yet accomplished any of adding the following new airworthiness (FAA), Transport Airplane Directorate, the requirements of this AD action, and directive: Rules Docket, 1601 Lind Avenue, SW., that no operator would accomplish 96–09–26 Fokker: Amendment 39–9602. Renton, Washington. those actions in the future if this AD were not adopted. Docket 96–NM–21–AD. FOR FURTHER INFORMATION CONTACT: Applicability: All Model F27 Mark 100, Ruth Harder, Aerospace Engineer, In addition, the FAA recognizes that 200, 300, 400, 500, 600, and 700 series Standardization Branch, ANM–113, this AD may impose operational costs. airplanes and Model F27 Mark 050 series FAA, Transport Airplane Directorate, However, those costs are incalculable airplanes, certificated in any category. 1601 Lind Avenue, SW., Renton, because the frequency of occurrence of Note 1: This AD applies to each airplane Washington 98055–4056; telephone the specified conditions and the identified in the preceding applicability (206) 227–1721; fax (206) 227–1149. associated additional flight time are provision, regardless of whether it has been SUPPLEMENTARY INFORMATION: A indeterminable. Nevertheless, because modified, altered, or repaired in the area proposal to amend part 39 of the Federal of the severity of the unsafe condition subject to the requirements of this AD. For airplanes that have been modified, altered, or Aviation Regulations (14 CFR part 39) to addressed, the FAA has determined that repaired so that the performance of the include an airworthiness directive (AD) continued operational safety requirements of this AD is affected, the that is applicable to all Fokker Model necessitates the imposition of these owner/operator must request approval for an F27 Mark 100, 200, 300, 400, 500, 600, costs. alternative method of compliance in 20682 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations accordance with paragraph (b) of this AD. ‘‘THE FOLLOWING WEATHER Issued in Renton, Washington, on April 24, The request should include an assessment of CONDITIONS MAY BE CONDUCIVE TO 1996. the effect of the modification, alteration, or SEVERE IN-FLIGHT ICING Ronald T. Wojnar, repair on the unsafe condition addressed by • Visible rain at temperatures below 0 Manager, Transport Airplane Directorate, this AD; and, if the unsafe condition has not degrees Celsius ambient air temperature. Aircraft Certification Service. been eliminated, the request should include • Droplets that splash or splatter on impact [FR Doc. 96–10767 Filed 5–1–96; 3:28 pm] specific proposed actions to address it. at temperatures below 0 degrees Celsius BILLING CODE 4910±13±P Compliance: Required as indicated, unless ambient air temperature. accomplished previously. To minimize the potential hazards PROCEDURES FOR EXITING THE SEVERE associated with operating the airplane in ICING ENVIRONMENT 14 CFR Part 39 severe icing conditions by providing more These procedures are applicable to all [Docket No. 96±NM±22±AD; Amendment clearly defined procedures and limitations flight phases from takeoff to landing. Monitor 39±9603; AD 96±09±27] associated with such conditions, accomplish the ambient air temperature. While severe the following: icing may form at temperatures as cold as RIN: 2120±AA64 (a) Within 30 days after the effective date ¥18 degrees Celsius, increased vigilance is of this AD, accomplish the requirements of warranted at temperatures around freezing Airworthiness Directives; Short paragraphs (a)(1) and (a)(2) of this AD. with visible moisture present. If the visual Brothers Model SD3±30, SD3±60, and Note 2: Operators must initiate action to cues specified in the Limitations Section of SD3±SHERPA Series Airplanes the AFM for identifying severe icing notify and ensure that flight crewmembers AGENCY: Federal Aviation conditions are observed, accomplish the are apprised of this change. Administration, DOT. (1) Revise the FAA-approved Airplane following: • ACTION: Final rule. Flight Manual (AFM) by incorporating the Immediately request priority handling following into the Limitations Section of the from Air Traffic Control to facilitate a route or an altitude change to exit the severe icing SUMMARY: This amendment adopts a AFM. This may be accomplished by inserting new airworthiness directive (AD), a copy of this AD in the AFM. conditions in order to avoid extended exposure to flight conditions more severe applicable to all Short Brothers Model ‘‘WARNING than those for which the airplane has been SD3–30, SD3–60, and SD3–SHERPA Severe icing may result from certificated. series airplanes, that requires revising environmental conditions outside of those for • Avoid abrupt and excessive the Airplane Flight Manual (AFM) to which the airplane is certificated. Flight in maneuvering that may exacerbate control provide the flight crew with recognition freezing rain, freezing drizzle, or mixed icing difficulties. cues for, and procedures for exiting conditions (supercooled liquid water and ice • Do not engage the autopilot. from, severe icing conditions, and to • crystals) may result in ice build-up on If the autopilot is engaged, hold the limit or prohibit the use of various flight protected surfaces exceeding the capability of control wheel firmly and disengage the control devices. This amendment is the ice protection system, or may result in ice autopilot. prompted by results of a review of the forming aft of the protected surfaces. This ice • If an unusual roll response or may not be shed using the ice protection uncommanded roll control movement is requirements for certification of the systems, and may seriously degrade the observed, reduce the angle-of-attack. airplane in icing conditions, new performance and controllability of the • Do not extend flaps during extended information on the icing environment, airplane. operation in icing conditions. Operation with and icing data provided currently to the • During flight, severe icing conditions flaps extended can result in a reduced wing flight crews. The actions specified by that exceed those for which the airplane is angle-of-attack, with the possibility of ice this AD are intended to minimize the certificated shall be determined by the forming on the upper surface further aft on potential hazards associated with following visual cues. If one or more of these the wing than normal, possibly aft of the operating the airplane in severe icing visual cues exists, immediately request protected area. conditions by providing more clearly • If the flaps are extended, do not retract priority handling from Air Traffic Control to defined procedures and limitations facilitate a route or an altitude change to exit them until the airframe is clear of ice. the icing conditions. • Report these weather conditions to Air associated with such conditions. —Unusually extensive ice accreted on the Traffic Control.’’ EFFECTIVE DATE: June 11, 1996. airframe in areas not normally observed to (b) An alternative method of compliance or ADDRESSES: Information pertaining to collect ice. adjustment of the compliance time that this rulemaking action may be examined —Accumulation of ice on the lower surface provides an acceptable level of safety may be at the Federal Aviation Administration of the wing aft of the protected area. used if approved by the Manager, (FAA), Transport Airplane Directorate, —Accumulation of ice on the propeller Standardization Branch, ANM–113, FAA, Rules Docket, 1601 Lind Avenue, SW., spinner farther aft than normally observed. Transport Airplane Directorate. Operators shall submit their requests through an Renton, Washington. • Since the autopilot may mask tactile appropriate FAA Principal Operations FOR FURTHER INFORMATION CONTACT: Phil cues that indicate adverse changes in Inspector, who may add comments and then Forde, Aerospace Engineer, handling characteristics, use of the autopilot send it to the Manager, Standardization is prohibited when any of the visual cues Standardization Branch, ANM–113, Branch, ANM–113. specified above exist, or when unusual FAA, Transport Airplane Directorate, lateral trim requirements or autopilot trim Note 3: Information concerning the 1601 Lind Avenue, SW., Renton, warnings are encountered while the airplane existence of approved alternative methods of Washington 98055–4056; telephone is in icing conditions. compliance with this AD, if any, may be (206) 227–2146; fax (206) 227–1149. obtained from the Standardization Branch, • All icing detection lights must be SUPPLEMENTARY INFORMATION: A ANM–113. operative prior to flight into icing conditions proposal to amend part 39 of the Federal at night. [NOTE: This supersedes any relief (c) Special flight permits may be issued in Aviation Regulations (14 CFR part 39) to provided by the Master Minimum Equipment accordance with sections 21.197 and 21.199 include an airworthiness directive (AD) List (MMEL).]’’ of the Federal Aviation Regulations (14 CFR (2) Revise the FAA-approved AFM by 21.197 and 21.199) to operate the airplane to that is applicable to all Short Brothers incorporating the following into the a location where the requirements of this AD Model SD3–30, SD3–60, and SD3– Procedures Section of the AFM. This may be can be accomplished. SHERPA series airplanes was published accomplished by inserting a copy of this AD (d) This amendment becomes effective on in the Federal Register on January 25, in the AFM. June 11, 1996. 1996 (61 FR 2151). That action proposed Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20683 to require revising the Airplane Flight responsibilities among the various Compliance: Required as indicated, unless Manual (AFM) to specify procedures levels of government. Therefore, in accomplished previously. that would prohibit flight in freezing accordance with Executive Order 12612, To minimize the potential hazards associated with operating the airplane in rain or freezing drizzle conditions (as it is determined that this final rule does severe icing conditions by providing more determined by certain visual cues), limit not have sufficient federalism clearly defined procedures and limitations or prohibit the use of various flight implications to warrant the preparation associated with such conditions, accomplish control devices, and provide the flight of a Federalism Assessment. the following: crew with recognition cues for, and For the reasons discussed above, I (a) Within 30 days after the effective date procedures for exiting from, severe icing certify that this action (1) is not a of this AD, accomplish the requirements of conditions. ‘‘significant regulatory action’’ under paragraphs (a)(1) and (a)(2) of this AD. Note 2: Operators must initiate action to Disposition of Comments Executive Order 12866; (2) is not a ‘‘significant rule’’ under DOT notify and ensure that flight crewmembers are apprised of this change. For the disposition of comments on Regulatory Policies and Procedures (44 this rulemaking action, see Docket No. FR 11034, February 26, 1979); and (3) (1) Revise the FAA-approved Airplane Flight Manual (AFM) by incorporating the 95–NM–146–AD; Amendment 39–9604; will not have a significant economic AD 96–09–28, Airworthiness Directives; following into the Limitations Section of the impact, positive or negative, on a AFM. This may be accomplished by inserting Aerospatiale Model ATR–42 and ATR– substantial number of small entities a copy of this AD in the AFM. 72 Series Airplanes, published under the criteria of the Regulatory elsewhere in this issue of the Federal Flexibility Act. A final evaluation has ‘‘WARNING Register. been prepared for this action and it is Severe icing may result from environmental conditions outside of those for Conclusion contained in the Rules Docket. A copy of it may be obtained from the Rules which the airplane is certificated. Flight in After careful review of the available freezing rain, freezing drizzle, or mixed icing Docket at the location provided under conditions (supercooled liquid water and ice data, including the comments noted the caption ADDRESSES. above, the FAA has determined that air crystals) may result in ice build-up on List of Subjects in 14 CFR Part 39 protected surfaces exceeding the capability of safety and the public interest require the the ice protection system, or may result in ice adoption of the rule with the changes Air transportation, Aircraft, Aviation forming aft of the protected surfaces. This ice previously described. The FAA has safety, Safety. may not be shed using the ice protection determined that these changes will systems, and may seriously degrade the neither increase the economic burden Adoption of the Amendment performance and controllability of the on any operator nor increase the scope airplane. Accordingly, pursuant to the • of the AD. During flight, severe icing conditions authority delegated to me by the that exceed those for which the airplane is Cost Impact Administrator, the Federal Aviation certificated shall be determined by the Administration amends part 39 of the The FAA estimates that 138 airplanes following visual cues. If one or more of these Federal Aviation Regulations (14 CFR visual cues exists, immediately request of U.S. registry will be affected by this part 39) as follows: priority handling from Air Traffic Control to AD, that it will take approximately 1 facilitate a route or an altitude change to exit work hour per airplane to accomplish PART 39ÐAIRWORTHINESS the icing conditions. the required actions, and that the DIRECTIVES —Unusually extensive ice accreted on the average labor rate is $60 per work hour. airframe in areas not normally observed to Based on these figures, the cost impact 1. The authority citation for part 39 collect ice. of the AD on U.S. operators is estimated continues to read as follows: —Accumulation of ice on the lower surface of the wing aft of the protected area. to be $8,280, or $60 per airplane. Authority: 49 USC 106(g), 40113, 44701. The cost impact figure discussed —Accumulation of ice on the propeller above is based on assumptions that no § 39.13 [Amended] spinner farther aft than normally observed. • operator has yet accomplished any of 2. Section 39.13 is amended by Since the autopilot may mask tactile the requirements of this AD action, and cues that indicate adverse changes in adding the following new airworthiness handling characteristics, use of the autopilot that no operator would accomplish directive: is prohibited when any of the visual cues those actions in the future if this AD 96–09–27 Short Brothers, PLC: Amendment specified above exist, or when unusual were not adopted. 39–9603. Docket 96–NM–22–AD. lateral trim requirements or autopilot trim In addition, the FAA recognizes that warnings are encountered while the airplane Applicability: All Model SD3–30, SD3–60, this AD may impose operational costs. is in icing conditions. and SD3–SHERPA series airplanes, • All icing detection lights must be However, those costs are incalculable certificated in any category. because the frequency of occurrence of operative prior to flight into icing conditions Note 1: This AD applies to each airplane at night. [NOTE: This supersedes any relief the specified conditions and the identified in the preceding applicability associated additional flight time are provided by the Master Minimum Equipment provision, regardless of whether it has been List (MMEL).]’’ indeterminable. Nevertheless, because modified, altered, or repaired in the area (2) Revise the FAA-approved AFM by of the severity of the unsafe condition subject to the requirements of this AD. For incorporating the following into the addressed, the FAA has determined that airplanes that have been modified, altered, or Procedures Section of the AFM. This may be continued operational safety repaired so that the performance of the accomplished by inserting a copy of this AD necessitates the imposition of these requirements of this AD is affected, the in the AFM. costs. owner/operator must request approval for an alternative method of compliance in ‘‘THE FOLLOWING WEATHER Regulatory Impact accordance with paragraph (b) of this AD. CONDITIONS MAY BE CONDUCIVE TO The request should include an assessment of SEVERE IN-FLIGHT ICING The regulations adopted herein will the effect of the modification, alteration, or • Visible rain at temperatures below 0 not have substantial direct effects on the repair on the unsafe condition addressed by degrees Celsius ambient air temperature. States, on the relationship between the this AD; and, if the unsafe condition has not • Droplets that splash or splatter on impact national government and the States, or been eliminated, the request should include at temperatures below 0 degrees Celsius on the distribution of power and specific proposed actions to address it. ambient air temperature. 20684 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

PROCEDURES FOR EXITING THE SEVERE • If the autopilot is engaged, hold the Inspector, who may add comments and then ICING ENVIRONMENT control wheel firmly and disengage the send it to the Manager, Standardization autopilot. Branch, ANM–113. These procedures are applicable to all • flight phases from takeoff to landing. Monitor If an unusual roll response or Note 3: Information concerning the uncommanded roll control movement is the ambient air temperature. While severe existence of approved alternative methods of observed, reduce the angle-of-attack. icing may form at temperatures as cold as compliance with this AD, if any, may be • Do not extend flaps during extended ¥18 degrees Celsius, increased vigilance is obtained from the Standardization Branch, operation in icing conditions. Operation with ANM–113. warranted at temperatures around freezing flaps extended can result in a reduced wing with visible moisture present. If the visual angle-of- attack, with the possibility of ice (c) Special flight permits may be issued in cues specified in the Limitations Section of forming on the upper surface further aft on accordance with sections 21.197 and 21.199 the AFM for identifying severe icing the wing than normal, possibly aft of the of the Federal Aviation Regulations (14 CFR conditions are observed, accomplish the protected area. 21.197 and 21.199) to operate the airplane to following: • If the flaps are extended, do not retract a location where the requirements of this AD • Immediately request priority handling them until the airframe is clear of ice. can be accomplished. from Air Traffic Control to facilitate a route • Report these weather conditions to Air (d) This amendment becomes effective on or an altitude change to exit the severe icing Traffic Control.’’ June 11, 1996. conditions in order to avoid extended (b) An alternative method of compliance or Issued in Renton, Washington, on April 24, exposure to flight conditions more severe adjustment of the compliance time that 1996. than those for which the airplane has been provides an acceptable level of safety may be Ronald T. Wojnar, certificated. used if approved by the Manager, Manager, Transport Airplane Directorate, • Avoid abrupt and excessive Standardization Branch, ANM–113, FAA, Aircraft Certification Service. maneuvering that may exacerbate control Transport Airplane Directorate. Operators difficulties. shall submit their requests through an [FR Doc. 96–10768 Filed 5–1–96; 3:29 pm] • Do not engage the autopilot. appropriate FAA Principal Operations BILLING CODE 4910±13±P federal register May 7,1996 Tuesday Waters inArizona;FinalRule Water QualityStandardsforSurface 40 CFRPart131 Protection Agency Environmental Part IV 20685 20686 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

ENVIRONMENTAL PROTECTION fish consumption as a use for certain St., San Francisco, CA 94105. For access AGENCY waters, and requires implementation of to the docket materials, call (415) 744– a monitoring program regarding 1978 for an appointment. A reasonable 40 CFR Part 131 mercury’s effects on wildlife. On fee will be charged for copies. January 29, 1996, EPA published a [FRL±5467±9] proposed rule that included other FOR FURTHER INFORMATION CONTACT: Gary provisions which are not being Wolinsky, Permits and Compliance Water Quality Standards for Surface Branch, W–5, Water Management Waters in Arizona promulgated as part of today’s rule because, after EPA’s proposal, the Division, EPA, Region 9, 75 Hawthorne AGENCY: Environmental Protection Arizona Department of Environmental St., San Francisco, CA 94105, telephone: Agency (EPA). Quality adopted revised regulations and 415 744–1978. ACTION: Final rule. policies in those areas which EPA SUPPLEMENTARY INFORMATION: Region 9 has determined are in SUMMARY: This rule establishes water accordance with the Clean Water Act. A. Regulated Entities quality standards applicable to waters of the United States in the State of EFFECTIVE DATE: June 6, 1996. Entities potentially regulated by this Arizona. EPA is promulgating this rule ADDRESSES: This action’s administrative action are those discharging pollutants pursuant to a court order in Defenders record is available for review and to waters of the United States in of Wildlife v. Browner (Docket No. Civ. copying at the Water Management Arizona. Regulated categories and 93–234 TUC ACM). The rule designates Division, EPA, Region 9, 75 Hawthorne entities include:

Category Examples of regulated entities

Industry ...... Industries discharging mercury to surface waters in Arizona, or discharging pollutants to particular surface waters in Ari- zona listed in sec. 131.31(b) of the rule. Municipalities ...... Publicly-owned treatment works discharging mercury to surface waters in Arizona, or discharging pollutants to particular surface waters listed in sec. 131.31(b) of the rule.

This table is not intended to be States may include in their standards publish proposed regulations setting exhaustive, but rather provides a guide policies generally affecting the forth revised or new water quality for readers regarding entities likely to be standards’ application and standards for those standards regulated by this action. This table lists implementation. See 40 CFR 131.13. disapproved in September 1993 and the types of entities that EPA is now These policies are subject to EPA review April 1994 within 90 days. Defenders of aware could potentially be regulated by and approval. 40 CFR 131.6(f), 40 CFR Wildlife v. Browner, Docket No. Civ 93– this action. Other types of entities not 131.13. 234 TUC ACM. listed in the table could also be Section 303(c)(4) of the CWA On December 29, 1995, the Arizona regulated. To determine whether your authorizes EPA to promulgate water Department of Environmental Quality facility is regulated by this action, you quality standards that supersede (ADEQ) published proposed revisions to should examine the list of waterbodies disapproved State water quality its standards. 1 Ariz. Admin. Reg. 2811. in section 131.31(b) of this rule, and standards, or in any case where the Consistent with the Court’s order, on examine 40 CFR 131.2 which describes Administrator determines that a new or January 29, 1996, EPA published a the purpose of water quality standards revised water quality standard is needed Federal Register notice proposing such as those established in this rule. If to meet the CWA’s requirements. standards related to the mining you have questions regarding the In September 1993, EPA, Region 9, exclusion, fish consumption designated applicability of this action to a disapproved portions of Arizona’s use, PQLs, and implementation policies particular entity, consult the person standards pursuant to section 303(c) of and procedures. 61 FR 2766. The notice listed in the preceding FOR FURTHER the CWA and 40 CFR 131.21. The also identified, and sought comment on, INFORMATION CONTACT section. portions of Arizona’s standards policies that EPA, Region 9, intended to disapproved in September 1993 relate use to implement State narrative criteria B. Background to: the exclusion of mining-related as they relate to toxicity, nutrients, and Under section 303 (33 U.S.C. 1313) of impoundments from water quality mercury. the Clean Water Act (CWA), states are standards; the absence of ‘‘fish The Court order in Defenders of required to develop water quality consumption’’ as a designated use for Wildlife directs EPA to promulgate final standards for waters of the United States certain water bodies; the absence of water quality standards 90 days after within the state. Section 303(c) provides implementation procedures for the EPA proposes such standards unless that a water quality standard shall State’s narrative nutrient standard; the Arizona has adopted revised or new include a designated use or uses to be absence of biomonitoring water quality standards which EPA made of the water and criteria necessary implementation procedures for the determines are in accordance with the to protect those uses. States are required State’s narrative toxicity criterion; and CWA. In January 1996, ADEQ adopted to review their water quality standards the inclusion of practical quantitation implementation procedures for the at least once every three years and, if limits (PQLs) in Arizona’s standards. In State’s narrative nutrient criteria. In appropriate, revise or adopt new April 1994, EPA, Region 9, also April 1996, ADEQ adopted standards. 33 U.S.C. 1313(c). States are disapproved Arizona’s lack of water implementation procedures for the required to submit the results of their quality criteria protective of wildlife for State’s narrative toxic criteria. On April triennial review of their water quality mercury. 26, 1996, EPA, Region 9, approved standards to EPA. EPA is to approve or On November 1, 1995, the United Arizona’s implementation procedures disapprove any new or revised States District Court for the District of for the State’s narrative nutrient and standards. Id. Arizona ordered EPA to prepare and toxic criteria. Because EPA has Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20687 determined that Arizona has addressed ‘‘use attainability analyses’’ recently (cold water fishery)’’ or ‘‘aquatic and EPA’s 1993 disapproval action regarding submitted by Arizona, EPA will proceed wildlife (warm water fishery)’’ use. the absence of appropriate expeditiously to withdraw the revised With the exception of fifteen implementation procedures for toxicity use designations contained in today’s waterbodies, Arizona’s April 1996 final and nutrients through the adoption of rule. rulemaking established the FC use for procedures that are in accordance with all the waterbodies subject to EPA’s C. Summary of Final Rule and the Act, EPA is not promulgating proposal. Response to Major Comments provisions in the final rule related to EPA is not promulgating a Federal these implementation procedures. A description of EPA’s final action, rule designating the FC use for those ADEQ adopted revisions to its and a summary of major comments waters which now have that designated standards on March 22, 1996, and, after regarding the proposal and EPA’s use under Arizona’s rules. In addition, obtaining the approval of the State’s response, are set forth below. Additional EPA is not promulgating a Federal rule Regulatory Review Council, filed comments and responses to comments designating the FC use for Quarter revisions to its standards with Arizona’s are in the administrative record. Circle Bar Tank. EPA has determined that that waterbody is located within the Secretary of State on April 24, 1996. 1. ‘‘Fish Consumption’’ Use ADEQ’s rulemaking repealed the mining boundaries of the Navajo Reservation related provision (R18–11–103.2) Arizona has designated several uses and this rulemaking only applies to disapproved by EPA, Region 9, in for its waters, including uses defined as waters within the jurisdiction of the September 1993, and established a ‘‘fish consumption’’, ‘‘aquatic and State of Arizona. The spelling of two revised exemption related to mining wildlife (cold water fishery)’’, ‘‘aquatic waterbodies has been corrected in the impoundments at R18–11–102. In and wildlife (effluent dominated final rule. addition, ADEQ’s rulemaking added the water)’’, ‘‘aquatic and wildlife On April 3 and April 10, 1996, ADEQ fish consumption use to most of the (ephemeral)’’, and ‘‘aquatic and wildlife submitted UAAs in support of its waters which would have been (warm water fishery)’’. See, R–18–11– determination not to designate the FC designated with the fish consumption 101, and Appendix B of Title 18, use for eleven of the fourteen State use under EPA’s proposal. The State’s Chapter 11, Article 1, of Arizona waterbodies listed in EPA’s proposal rulemaking also deleted the appendix Administrative Rules and Regulations. which did not receive the FC use which prescribed PQLs from the State’s In September 1993, EPA disapproved designation under Arizona’s April 1996 water quality standards regulations. On the lack of the ‘‘fish consumption’’ (FC) rulemaking. EPA is currently reviewing April 26, 1996, EPA, Region 9 approved use for water bodies which Arizona the analyses provided by the State. In these revised regulations thereby designated as having an ‘‘aquatic and accordance with Region 9 practice in removing the need to promulgate a wildlife’’ use. For the standards to be this area, the Region has also sent out Federal regulation addressing these approvable, EPA stated that the State the new analyses for public review and issues. must either revise its standards to comment to persons and organizations ADEQ has also participated, with include the FC use, or submit ‘‘use with interests related to water quality EPA, Region 9, and the U.S. Fish and attainability analyses’’ (UAAs), for the standards determinations in Arizona. Wildlife Service, in the development of subject waters. A UAA is a scientific EPA has asked for comments by May 15, an interim approach to protect assessment showing whether it is 1996. ADEQ intends to submit a UAA predatory wildlife from mercury until feasible to attain a particular use. See, in support of its determination not to appropriate numeric criteria can be 40 CFR 131.3(g) and 131.10(j). designate the FC use for the three developed. In conjunction with ADEQ subsequently completed UAAs remaining waterbodies (Davidson Arizona’s priority pollutant program, showing that it need not designate the Canyon and Tinaja Wash in the Santa ADEQ, in cooperation with the Arizona FC use for those effluent dominated or Cruz River Basin, and Chase Creek in Game and Fish Department, the U.S. ephemeral waters which it had not the Upper Gila River Basin) listed in Fish and Wildlife Service, and EPA will already designated as having the FC use. EPA’s proposed rule. EPA, Region 9, conduct a tissue monitoring program to EPA approved those UAAs in November will send out that UAA for public assess the magnitude and extent of 1995. review and comment. mercury bioaccumulation in the prey In December 1995, ADEQ proposed to Because EPA is under court order to base of the bald eagle and other fish- revise its standards to add the FC use to promulgate this regulation by the end of eating birds in Arizona. The monitoring waters within the State which have the April, and the State submitted UAAs program identifies further actions ‘‘aquatic and wildlife (cold water with insufficient time for the Agency to related to sampling, source fishery)’’ or ‘‘aquatic and wildlife (warm adequately review the documentation identification and remedy selection water fishery)’’ use. See, 1 Ariz. Admin. and solicit public comment prior to its which the agencies will undertake if Reg. 2811 (Dec. 29, 1995), proposed R– court-ordered deadline, EPA is mercury levels in fish are found above 18–11–104 and Appendix B of Title 18, promulgating the fish consumption use a specified action level. Because pursuit Chapter 11, Article 1, of Arizona designation for waterbodies identified of this monitoring program is an Administrative Rules and Regulations. in EPA’s proposal which do not now important component in addressing the In January 1996, EPA proposed to have the FC designated use. Should EPA problem of mercury contamination in designate the fish consumption use for approve, after completing its review of Arizona waters, EPA has included the those waters which Arizona had the UAAs and public comments, the proposed regulatory provision related to designated as having an ‘‘aquatic and State’s determination that attaining the mercury in the final rule. In addition, wildlife’’ use, in those cases where the FC use is not feasible with respect to a EPA is promulgating the fish requirements for completing a UAA had waterbody listed in today’s rule, EPA consumption use designation for not been met. The affected stream will proceed expeditiously to withdraw waterbodies identified in EPA’s segments and water bodies were listed the revised use designation contained in proposal for which the State did not in proposed section 131.31(c). Each of section 131.31(c) with respect to that adopt the fish consumption use the affected waters were, at the time of waterbody. If EPA approves the State’s designation. As explained more fully EPA’s proposal, designated by Arizona UAA prior to the effective date of this below, should EPA decide to approve as having the ‘‘aquatic and wildlife rule with respect to a waterbody listed 20688 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations in section 131.31(c), EPA intends to stay attainability analysis as described in 40 circumstances and conditions than does the effectiveness of the Federal use CFR 131.3(g) whenever the State the State agency, to make these designation with respect to that designates or has designated uses that determinations would be impracticable waterbody pending withdrawal of that do not include the uses specified in and would significantly undermine the part of the rule by EPA. section 101(a)(2) of the Act.’’ 40 CFR health protection goals of the Act. EPA received a number of comments 131.10(j)(1). Section 101(a)(2) of the Finally, the issue in Arizona was not opposing provisions of the proposed CWA provides that water quality ‘‘shall whether the State had reasonably rule relating to fish consumption. One provide for the protection of fish, concluded that existing standards for commenter submitted extensive shellfish, wildlife and recreation in and these waterbodies would protect human comments objecting to EPA’s proposal on the water’’, and, in EPA’s view, the health. Rather, it was the State’s failure to promulgate the FC designated use, ‘‘protection’’ of fish, shellfish, and to adopt standards protecting human particularly with respect to the segment recreation necessarily includes ensuring health that precipitated the Region’s of the Salt River from the I–10 bridge to that fish are not so contaminated that disapproval action. the 23rd Avenue WWTP discharge. The they are unhealthful for human One commenter stated that, even if an commenter contended that EPA should consumption. Nonetheless, the State additional use designation were not have disapproved the lack of the FC had failed to include designated uses necessary and supported by an use on waters designated by Arizona as that would protect such aquatic life for administrative record, EPA has failed to having the aquatic and wildlife (warm purposes of human consumption, or to promulgate scientifically supportable, water fishery) use. The commenter perform a UAA demonstrating that this reasonable and necessary numeric stated that EPA’s disapproval did not use was not attainable. EPA, Region 9, criteria to protect the use. The explain how the Arizona standards were therefore appropriately concluded that commenter stated that the CWA requires inconsistent with section 101(a)(2) of the State’s standards were not numeric criteria only for those toxic the Act, that EPA’s reliance upon 40 ‘‘consistent with’’ the goals of the CWA. pollutants for which criteria have been CFR 131.10(j)(1) in its disapproval was Finally, while this commenter asserts published under section 304(a) of the inappropriate, and that a UAA was not that a FC designated use is not CWA, the discharge or presence of required in order to avoid designating necessary if other standards are which in the affected waters could the FC use for the subject waters. The sufficient to protect the health of reasonably be expected to interfere with commenter stated that EPA rules and persons, the State has not contended those designated uses adopted by the guidance documents do not require a FC that it has adopted criteria applicable to designated use if other water quality State, as necessary to support such these waters that would protect human designated uses, and that EPA has not standards are sufficient to protect the health. The State’s existing water health of persons who may consume conducted the analysis required by this quality criteria were derived to protect section to determine what numeric harvested aquatic life, and that the Act aquatic life itself, not humans who does not require a specific FC use for criteria would be appropriate to support consume it. Unlike aquatic life criteria, the new FC use on the affected surface any waters at all. This commenter human health criteria take into account further stated that EPA has generated no waters. The commenter stated that there many factors that must be considered to is no administrative record to support evidence to support its hypothesis that ensure that pollutant residues in fish, the aquatic and wildlife (warm water EPA’s FC use and associated numeric when consumed by humans, do not criteria for all surface waters, and that fishery) designated use is not sufficient result in adverse health effects. See for the minimal harvesting of edible EPA should have considered whether generally 40 CFR Part 132, Appendices aquatic life that could potentially occur any of the surface waters potentially A and C, 60 FR 15393–15411 (March 23, on the Salt River segment between the subject to the new FC use would be 1995) (containing methodologies for I–10 Bridge and the 23rd Avenue entitled to a modification of the use on deriving aquatic life and human health wastewater treatment plant. The the basis of the factors in 40 CFR criteria for the Great Lakes Basin). EPA commenter stated that Arizona’s use 131.10(g). The commenter also stated therefore believes that there is not a designations and criteria, taken as a that the social and economic impact of reasonable basis to conclude that the whole, are entirely ‘‘consistent’’ with the FC designations would be severe in State’s aquatic life criteria will provide the goals of the CWA, and that Phoenix, noting that some of the protection for persons consuming fish consistency is all that is required in Phoenix storm water outfalls discharge light of 40 CFR 131.5 and 131.6. The from these specified waterbodies. into the Salt River segment that would commenter stated that the CWA and This commenter apparently also be reclassified under the proposed rule. Arizona law require protection of only would seek to place the burden on EPA The commenter stated that the proposed those uses that are actually occurring or Regions to demonstrate that existing rule could have a substantial impact on are reasonably foreseeable, and that EPA uses and criteria are not adequate to storm water discharges and erroneously assumed in this case that protect human health, taking into substantially increase costs to the public the Act requires the FC use found in the account local environmental conditions without any demonstrated improvement Arizona water quality standards to and consumption patterns, prior to in public health. The commenter further apply to all river segments regardless of disapproving state standards that fail to stated that the upgrading of the Salt local environmental conditions, the include the uses reflected in section River and other segments with the FC degree and types of harvesting by 101(a)(2) of the Act. This position use could also have a ripple effect that humans, and the types of aquatic life in ignores the fact that, under EPA would result in more costly standards the riverbed. regulations, a UAA is the appropriate for upstream ephemeral segments, EPA continues to believe that EPA mechanism by which States can noting that Arizona water quality Region 9’s disapproval of the absence of determine whether local environmental standards appear to require that fish consumption use designations for conditions and other factors justify the designated uses for upstream segments certain waterbodies was consistent with absence of a use otherwise meriting shall not cause a violation of water the requirements of the CWA. EPA protection under the Act. Turning this quality standards in downstream regulations regarding use designations process on its head and requiring EPA, segments, and that economic impact of provide that a State ‘‘must conduct a use which has far less familiarity with local the proposed FC use could spread Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20689 upstream to ephemeral waters that Another commenter sought jeopardizing endangered and threatened clearly do not warrant the FC use. clarification that EPA’s designation of wildlife species, further discussions The comments regarding the the fish consumption use would be between EPA, ADEQ, Arizona Game and appropriateness of criteria that will now limited to water bodies which are Fish Department, and the FWS led to apply to these waterbodies appear to waters of the United States. the development of an alternative indicate that commenters have As explained previously, EPA program to address the problem of misunderstood EPA’s action. The State believes that it was appropriate and mercury’s impacts on endangered and has itself adopted criteria that it believes consistent with the requirements and threatened species. The Service are appropriate for providing protection goals of the CWA to promulgate fish indicated its overall approval of this of persons consuming fish from many consumption use designations where approach to dealing with the problem of State waters. EPA is not second- the State has designated the waters as mercury as it relates to the protection of guessing this determination by the State. supporting aquatic life. EPA disagrees wildlife and, on January 17, 1996, EPA also disagrees that it was under a that the CWA places a burden on EPA revised its determination which initially duty to evaluate the attainability of the or States to demonstrate legal, identified adoption of a mercury fish consumption use taking into widespread and continuous use of a criterion as a reasonable and prudent account the factors in 40 CFR 131.10(g). waterbody before adopting a FC use alternative for removing jeopardy to Again, under EPA regulations, States designation. No such restriction is endangered species. Accordingly, in have the opportunity and responsibility evident in the language or legislative January 1996, EPA proposed section for conducting UAAs to demonstrate history of the CWA. To support a 131.31(f) to address the deficiency in that uses consistent with the goals of the particular use designation, it is the State’s standards related to CWA are not attainable. The State had sufficient that such a use be attainable mercury’s effect on wildlife, and failed to do so here. EPA therefore was in the waterbody. Regarding the use solicited comment upon EPA’s intent to within its authority to determine that designation for the Salt River from the implement a monitoring and source the use designations needed to be I–10 bridge to the 23rd Avenue WWTP identification program to assist EPA in revised to be consistent with the goals discharge, that segment is not addressed implementing Arizona’s narrative in CWA section 101(a)(2). The State by today’s rule since the State adopted toxicity criteria. remains free to determine, based on the FC use for this waterbody. See, R– ADEQ has continued to participate, local environmental conditions or the 18–11–101, and Appendix B of Title 18, with EPA, Region 9, and the U.S. Fish costs that it determines could be Chapter 11, Article 1, of Arizona and Wildlife Service, in the associated with the revised use Administrative Rules and Regulations, development of an interim program to designations, to downgrade use as filed on April 24, 1996. protect predatory wildlife from mercury designations in accordance with 40 CFR The one commenter is correct that the until appropriate numeric criteria can 131.10(g). No commenters provided revised use designations only apply to be developed. The program developed information during the public comment waters that meet the definition of waters by the agencies is described in ‘‘Arizona period indicating that, in fact, the of the United States. Priority Pollutant Sampling Program, revised use designations were not ADEQ/AGFD/USFWS/USEPA 2. Water Quality Criteria Protective of attainable according to the criteria Cooperative Program’’, March 29, 1996. Wildlife for Mercury contained in section 131.10(g). Under that program, ADEQ, in Another commenter also questioned Arizona has established numeric cooperation with the Arizona Game and whether the segment of the Salt River criteria for mercury for ‘‘aquatic and Fish Department, the U.S. Fish and from the I–10 bridge to the 23rd Avenue wildlife’’, ‘‘fish consumption’’, Wildlife Service, and EPA will conduct WWTP discharge should be designated ‘‘domestic water source’’ and other uses a tissue monitoring program to assess as having the fish consumption use. The designated for its waters. See, Appendix the magnitude and extent of mercury commenter stated that, if EPA’s A of Title 18, Chapter 11, Article 1, of bioaccumulation in the prey base of the rationale for promulgating the fish Arizona Administrative Rules and bald eagle and other fish-eating birds in consumption use is simply because the Regulations. As part of its consultation Arizona. This monitoring program stream segment had been designated by with EPA regarding Arizona’s water identifies further actions related to Arizona as having the ‘‘aquatic and quality standards pursuant to section 7 sampling, source identification, and wildlife (warm water fishery)’’ use, then of the Endangered Species Act, the U.S remedy selection which the agencies the process and rationale for designating Fish and Wildlife Service (FWS) will undertake if mercury levels in fish the segment is suspect and should be determined that Arizona’s mercury are found above a specified action level. reviewed. criteria for protection of aquatic and EPA received comment upon its Another commenter stated that the wildlife uses were developed without proposal to adopt section 131.31(f) and fish consumption designated use should consideration of bioaccumulative effects upon the monitoring and source not be presumptively applied to all for predatory wildlife, and the FWS identification program identified in the water bodies, and should be applied identified the adoption of mercury Federal Register notice. A commenter only when it is shown that fishing is a criteria protective of wildlife as a means stated that, even with the legal, continuous, and widespread use to remove jeopardy to endangered and implementation procedures proposed by of a particular water body. The threatened species in the context of the EPA, Arizona’s narrative toxicity criteria commenter objected to allowing the Endangered Species Act. would not protect against food chain addition of designated uses to a stream Based upon FWS’s determinations, accumulation in birds and other fish- segment without the requirement to EPA, Region 9, in April 1994 eating species. The commenter make any particular showing while the disapproved Arizona’s lack of water contended that there was no deadline removal of a use may take place only quality criteria protective of wildlife for for completion of the monitoring and after a comprehensive use attainability mercury. stated that there is no need to wait for analysis which is often beyond the While the FWS identified the further fish tissue monitoring because financial or technical capability of the adoption of a mercury criterion recent tests in certain lakes have found individuals most directly affected by the protective of wildlife as a reasonable mercury levels exceeding the 0.1 mg/kg inappropriately designated use. and prudent alternative to avoid level identified under the proposed 20690 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations monitoring program as the trigger for can be used to assist in evaluating the Guidance methodologies or procedures that further control efforts. The commenter magnitude of mercury contamination of are scientifically and technically appropriate also noted that a mercury criterion to wildlife in Arizona. The monitoring for their situations. Supplementary protect against food chain accumulation program was developed in consultation Information Document, p. 82. has been established for the Great Lakes, with the FWS, ADEQ, and Arizona EPA believes the methodology used in and that a similar criterion could be Game and Fish Department. EPA the GLI for deriving a mercury wildlife developed for Arizona. The commenter believes the sampling program is a criteria may be appropriate for use in stated that the Arizona criterion might reasonable first step for identifying Arizona with some modifications based differ if there were evidence that those areas in the State where problems on the specific conditions in Arizona. mercury uptake rates among Arizona may exist and for designing control This does not mean, however, that a fishes are markedly different than strategies that will help remediate such criterion can simply be developed using among Great Lakes fishes, but that EPA problems to benefit wildlife protection the data from the Great Lakes. In has offered no evidence to suggest this in Arizona. The program will assist EPA addition, the commenter implies that is so. in determining whether contaminated the only question which needs to be EPA’s long-term goal is the adoption fish species are isolated cases due to considered when applying the GLI of a mercury criterion for wildlife. particular sources of pollution (in which methodology is whether the mercury However, despite the claims by the case development of permit limits for a uptake rates among Arizona fishes are commenter, the data currently are not particular discharger based on the markedly different than among Great available to derive a mercury criterion State’s existing narrative criterion may Lakes fishes. In fact, the for wildlife in Arizona using the be the best means of remedying the bioaccumulation potential is only one methodology developed for the Great problem) or whether they are indicative component that goes into the derivation Lakes. A detailed discussion of the data of a larger State-wide problem which of wildlife criteria. needed to develop a criterion is needs to be addressed (potentially based ADEQ reviewed the GLI methodology discussed below. In lieu of a numeric on state-wide numeric criteria, when for deriving wildlife criteria to evaluate criterion, EPA believes that the development of such criteria are its applicability to Arizona and approach of using Arizona’s narrative technically feasible). If during the tissue submitted their comments to EPA on criterion in R18–11–108 for toxicity in monitoring it is determined that the May 12, 1995, which are part of the combination with the implementation of mercury tissue levels are consistently administrative record. EPA agrees with the tissue monitoring program will found above the action level of 0.1 mg/ ADEQ that ecological conditions differ satisfy the requirements of the CWA to kg in the prey base of bald eagle or in Arizona from the Great Lakes region. provide protection of designated uses, Yuma clapper rail, then steps will be Therefore direct application of the GLI including wildlife protection and taken to identify the sources of the methodology without modification is propagation. contamination and identify possible probably not appropriate. Development With regard to the commenter’s corrective measures. of a wildlife criterion to protect wildlife general point regarding the necessity of EPA is concerned with the elevated from mercury in Arizona will likely having numeric criteria in order to meet mercury levels at the waterbodies require the completion of tasks the requirements of the CWA, it should identified by the commenter. While analogous to those undertaken by EPA be emphasized that the absence of a neither of the two lakes specifically in the GLI. This effort is necessary numeric criterion for a specific cited by the commenter were identified because several components within the pollutant is not unusual. EPA has not by FWS as priority water bodies for wildlife methodology are specific to the published criteria guidance for the sampling for mercury for threatened and type of aquatic ecosystem and protection of aquatic life for all endangered species, EPA is seeking to associated wildlife species. It would not pollutants. To account for this identify the sources contributing to the be scientifically defensible to directly unavoidable absence of numeric criteria mercury levels detected in the two lakes adopt the mercury wildlife criterion for for all pollutants, States include and corrective measures for them. the Great Lakes in the regulation of narrative criteria as part of their The commenter is correct that a Arizona ecosystems without further standards. Narrative criteria are methodology for deriving wildlife analyses to support such a decision. intended to cover all pollutants and criteria and a mercury criterion for Issues that will require further data endpoints for which the state has not wildlife were recently established in the evaluation and analyses include: (1) The adopted numeric criteria. The role of Great Lakes Water Quality Initiative establishment of representative wildlife narrative criteria in the CWA’s (‘‘GLI’’). It is important to note that the species for aquatic ecosystems in regulatory program is evident in EPA’s GLI wildlife methodology and criteria Arizona, including a determination of permitting regulations which include were developed over several years with their water and food intake rates and the explicit provisions requiring permit input from two national conferences prey that comprises their diets; (2) a limits to ensure narrative criteria are not and several consultations with EPA’s determination of appropriate mercury exceeded. 40 CFR 122.44(d)(1)(vi). Science Advisory Board along with over toxicity thresholds for the representative In addition, the commenter was 5000 public comments on the proposed wildlife species identified for Arizona concerned that there was no deadline GLI. In addition to the large effort ecosystems; and (3) the establishment of for completion of the tissue monitoring undertaken to develop the methodology mercury bioaccumulation factors program. However, sampling will and criteria, EPA stated very clearly in appropriate for Arizona ecosystems and commence in the spring of 1996 and the Supplementary Information their associated food chains. continue through the year 2000. The Document to the GLI that: The technical analyses needed to FWS biological opinion, and the FWS’s establish the representative species (and revised determination regarding EPA would like to reemphasize that the their associated attributes) and provisions in the proposed and final appropriate mercury bioaccumulation reasonable and prudent alternatives, are Guidance are expressly applicable only to the included in the administrative record waters of the Great Lakes System * ** factors will likely require the largest for this rulemaking. States or Tribes with waters outside the Great effort because these items are most The purpose of the tissue monitoring Lakes Systems, in whole or in part, are closely associated with the site-specific program is to provide information that encouraged to implement any of the nature of wildlife criteria. In addition to Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20691 the data evaluation and analyses, peer 11–103.2, as that State rule then existed. conditions for exempting water bodies review would be appropriate for any In the preamble to the proposed Federal under Arizona’s proposal had been met. wildlife methodology and associated rule, EPA also solicited comment The commenter suggested that accuracy criteria developed in Arizona given the regarding revisions to R18–11–102 that and simplicity might be better served by numerous technical and scientific issues the State had proposed in December deleting the State’s mining involved in developing such a 1995 regarding the applicability of its impoundment exemption. EPA methodology. standards to impoundments and considered these comments prior to In summary, while EPA believes the associated ditches and conveyances determining that Arizona’s final development of a wildlife criterion for used in the extraction, beneficiation and rulemaking with respect to mining mercury may be possible, with some processing of metallic ores. impoundments is consistent with the modifications, using the methodology In April 1996 Arizona repealed R18– CWA and that a Federal rule is developed in the GLI, the data to 11–103 in its entirety and revised R18– unneeded. support the development of such a 11–102 by, among other things, adding Under section 303 of the CWA, States criterion are not currently available. provisions related to the applicability of must adopt standards for all waters of Therefore, until this information is the State’s standards to mining-related the United States within the State. See, collected, EPA believes the approach of impoundments. R18–11–102 as Kentucky v. Train, 9 ERC 1280, 1281 relying on the narrative criterion promulgated differs in certain respects (E.D. Ky. 1976). States, however, need combined with the tissue monitoring from the proposed revision upon which not adopt standards for any water body program will provide protection of EPA sought comment in its January which is not a water of the United wildlife in a manner consistent with the 1996 Federal Register notice. States. EPA has defined waters of the EPA has determined that Arizona’s requirements of the Endangered Species United States to include, among other repeal of R18–11 103.2, and Arizona’s Act and Clean Water Act. waters, rivers and streams the use, adoption of revisions to R18–11–102 EPA is continuing to evaluate the degradation, or destruction of which regarding the applicability of the State’s comments upon the substance of the would affect or could affect interstate standards to certain impoundments and monitoring program, for the purpose of commerce; impoundments of such associated ditches and conveyances, are determining whether modifications to waters are also waters of the United consistent with the CWA, and that a the program are warranted. States. See, 40 CFR 122.2 and 40 CFR Another commenter indicated that Federal rule with respect to such impoundments and associated ditches 230.3(s). Accordingly, EPA’s EPA’s disapproval of Arizona’s lack of disapproval was based on the premise water quality criteria protective of and conveyances is not therefore needed to meet the CWA’s requirements. EPA that Arizona must adopt standards wildlife for mercury should have been governing mining impoundments which limited to the need for a mercury believes that the State’s revision to R18– 11–103.2 adequately addresses EPA’s are waters of the United States. In the criterion applicable to only those view of EPA, Region 9, the State’s surface waters where affected concerns because it excludes from standards only those waters that are not revised mining language accords with endangered species are likely to be the CWA because only impoundments adversely impacted. waters of the United States. Accordingly, EPA is not promulgating that are not waters of the United States EPA’s disapproval action was based will not be subject to standards. EPA upon the biological opinion issued by the provision which it proposed regarding mining-related agrees that additional guidance the FWS, which found that the State’s addressing the extent to which water existing criteria for mercury failed to impoundments, and comments opposing the adoption of the proposed quality standards are applicable in cases consider the effects of bioaccumulation noted by the commenters is desirable. of pollutants on wildlife. Because Federal rule are moot. Other commenters objected to mining- bioaccumulative effects may extend 2. Practical Quantitation Limits related exclusions under consideration beyond threatened and endangered in Arizona’s rulemaking or encouraged At the time of EPA’s actions species to other species of wildlife, adoption of a Federal rule in order to disapproving portions of Arizona’s EPA’s disapproval appropriately clarify the applicability of water quality water quality standards, Arizona had extended to Arizona’s waters generally. standards to mining-related activities. prescribed practical quantitation limits D. Summary of Provisions in Proposal One commenter supported the (PQLs) in the regulations establishing its Not Included in Final Rule application of water quality standards to water quality standards. See, R18–11– surface water bodies that have been 120, and Appendix C of Title 18, 1. Mining Exclusion converted into mining impoundments. Chapter 11, Article 1, of Arizona In September 1993, EPA, Region 9, The commenter also indicated that Administrative Rules and Regulations disapproved the exclusion related to EPA’s rule should address the extent to (1992). Under Arizona’s regulations, mining contained in the State’s which water quality standards are ‘‘practical quantitation limit means the standards at Arizona Administrative applicable in cases involving stream lowest level of quantitative Rules and Regulations, R18–11–103.2. diversions and the placement of mining measurement that can be reliably That exclusion provided that Arizona’s wastes in dammed creek beds or valleys. achieved during routine laboratory standards did not apply to certain The commenter indicated its support for operations.’’ R18–11–101.37. In impoundments and associated ditches broadening the protections associated September 1993, EPA, Region 9, and conveyances used in the extraction, with water quality standards to cover disapproved Arizona’s inclusion of the beneficiation and processing of metallic impoundments built in the drainages of PQLs in its regulations. EPA, Region 9, ores. diverted water bodies. Another stated that, in order for the standards to In EPA’s January 1996 Federal commenter suggested that uncertainty be approvable under CWA section Register notice of proposed rulemaking, would be created if Arizona adopted the 303(c), they must protect the designated EPA sought comment on a proposed mining-related revisions then under uses and must not be compromised by Federal rule that would adopt standards consideration. The commenter noted constraints related to analytical for any waters of the United States not that it would be difficult for persons to methods. EPA, Region 9, further stated governed by State standards due to R18– determine whether the particular that Arizona may choose to include the 20692 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

PQLs in a policy or guidance document policies and procedures may be EPA’s own toxicity policy for Arizona separate from the standards regulations. contained either in water quality (‘‘EPA, Region 9, Policy on Using In December 1995, ADEQ proposed standards regulations themselves, or Biomonitoring to Implement Arizona’s deleting the PQLs prescribed in may be included in a standards Narrative Toxicity Criterion’’). These Appendix C from its regulations and submission as policy or guidance comments addressed the purpose and adopting the PQLs in a guidance documents. EPA also stated in its function of toxicity requirements in document. See, 1 Ariz. Admin. Reg. January 1996 preamble that, should the permits. Since Arizona’s toxicity policy 2811 (Dec. 29, 1995), proposed R18–11– State adopt acceptable policies and does not address how the narrative 120. procedures prior to promulgation of a toxicity standard will be implemented In its January 1996 action, EPA final rule by EPA, the Agency would not in permits, these comments have not proposed to adopt a Federal rule that include the subject regulatory been responded to in EPA’s action would provide that Appendix C of provisions in the final rule. approving the Arizona toxicity policy. Arizona’s regulations would not be In January 1996, Arizona adopted a EPA will take these comments into water quality standards for the purposes policy for the implementation of the account as we further refine the of the CWA. State’s narrative criteria for nutrients. implementation of toxicity narrative In its April 1996 rulemaking, Arizona ADEQ, Water Quality Assessment Unit, standards in National Pollutant deleted Appendix C from its ‘‘Implementation Guidelines for the Discharge Elimination System permits regulations. Accordingly, EPA is not Narrative Nutrient Standard’’. In April in Arizona. promulgating a rule addressing this 1996, Arizona adopted a policy for the issue. implementation of the State’s narrative E. Endangered Species Act 3. Implementation Policies criteria for toxicity. ADEQ, ‘‘Interim Pursuant to section 7 of the Whole Effluent Toxicity Implementation Endangered Species Act (16 U.S.C. 1656 In September 1993, EPA disapproved Guidelines for Arizona’’. the lack of implementation procedures et seq.), Federal agencies must assure After reviewing the State-adopted that their actions are unlikely to for Arizona’s narrative nutrient criteria. implementation policies and the Arizona’s narrative nutrient criteria jeopardize the continued existence of comments received in response to the listed threatened or endangered species provides that navigable waters shall be January 1996 Federal Register notice, free from pollutants in amounts or or adversely affect designated critical EPA, Region 9, approved the policies habitat of such species. Today’s action combinations that cause the growth of adopted by the State. With respect to algae or aquatic plants that inhibit or adds the fish consumption use to EPA’s prior disapproval of Arizona’s various waters which previously did not prohibit the habitation, growth or standards due to the lack of propagation of other aquatic life or that have the protections afforded by that implementation policies related to designation, and establishes that a impair recreational uses. See, R18–11– narrative criteria for nutrients and 108.A.6. At the time of the disapproval, monitoring program will be undertaken toxicity, EPA has determined that to implement the State’s narrative water Arizona had not adopted an Arizona’s water quality standards, as implementation process for its narrative quality criteria with respect to the supplemented by the State’s newly effects of mercury on wildlife. criteria. adopted implementation plans, are EPA has completed section 7 Also in September 1993, EPA, Region consistent with the CWA and that no consultation with the FWS regarding 9, disapproved the lack of new Federal water quality standard is this action. implementation procedures for necessary to meet the CWA’s Arizona’s narrative toxicity criterion. requirements. Accordingly, EPA is not F. Executive Order 12866 Arizona’s narrative toxicity criterion promulgating proposed 40 CFR Under Executive Order 12866 (58 FR provides that navigable waters shall be 131.31(e). free from pollutants in amounts or EPA received comments regarding its 51735, October 4, 1993) the Agency combinations that are toxic to humans, implementation policies in response to must determine whether the regulatory animals, plants and other organisms. the January 1996 Federal Register action is ‘‘significant’’ and therefore See, R18–11–108.A.5. At the time of the notice. Because EPA has approved subject to Office of Management and disapproval, Arizona had not adopted Arizona’s implementation policies, and Budget (OMB) review and the implementation procedures for toxicity. therefore not promulgated a final rule requirements of the Executive Order. In its January 1996 proposal, EPA related to these policies, those The Order defines ‘‘significant proposed to adopt a Federal rule to comments are no longer relevant to this regulatory action’’ as one that is likely address these deficiencies in the State’s rulemaking action. However, those to result in a rule that may: standards. Proposed 40 CFR 131.31(e). comments regarding EPA’s policies that (1) Have an annual effect on the In its January 1996 proposal, EPA also are material to EPA’s decision to economy of $100 million or more or solicited comment regarding the approve Arizona’s policies have been adversely affect in a material way the Region’s use of two policies to guide the considered by the Agency in its economy, a sector of the economy, Region’s implementation of the subject approval action and responses to those productivity, competition, jobs, the narrative criteria: ‘‘EPA, Region 9, comments have been prepared and are environment, public health or safety, of Policy for the Implementation of part of the record supporting EPA’s State, local, or tribal governments or Arizona’s Narrative Nutrient Criteria’’ approval of Arizona’s narrative toxicity communities; and ‘‘EPA, Region 9, Policy on Using and narrative nutrient standards (2) Create a serious inconsistency or Biomonitoring to Implement Arizona’s implementation policies. A number of otherwise interfere with an action taken Narrative Toxicity Criterion’’. As noted comments having to do with the or planned by another agency; in EPA’s January 1996 Federal Register appropriateness of adopting Federal (3) Materially alter the budgetary notice, EPA does not believe that it is implementation policies, or the impact of entitlements, grants, user fees, necessary that the State itself adopt necessity of having State policies, are or loan programs of the rights and regulatory provisions addressing these moot since the State has now adopted obligations of recipients thereof; or implementation issues. EPA explained its own implementation policies. Other (4) Raise novel legal or policy issues in the Federal Register notice that such comments received were specific to arising out of legal mandates, the Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20693

President’s priorities, or the principles I. Unfunded Mandates Reform Act J. Paperwork Reduction Act set forth in the Executive Order. Title II of the Unfunded Mandates This action requires no information Because the annualized cost of this Reform Act of 1995 (UMRA), Public collection activities subject to the final rule would be significantly less Law 104–4, establishes requirements for Paperwork Reduction Act, and therefore than $100 million and would meet none Federal agencies to assess the effects of no information collection request (ICR) of the other criteria specified in the their regulatory actions on State, local, will be submitted to the Office of Executive Order, it has been determined and tribal governments and the private Management and Budget (OMB) for that this rule is not a ‘‘significant sector. Under section 202 of the UMRA, review in compliance with the regulatory action’’ under the terms of EPA generally must prepare a written Paperwork Reduction Act, 44 U.S.C. Executive Order 12866, and is therefore statement, including a cost-benefit 3501 et seq. not subject to OMB review. analysis, for proposed and final rules with ‘‘Federal mandates’’ that may List of Subjects in 40 CFR Part 131 G. Executive Order 12875, Enhancing result in expenditures to State, local, Environmental protection, Water the Intergovernmental Partnership and tribal governments, in the aggregate, pollution control, Water quality or to the private sector, of $100 million standards, Toxic pollutants. In compliance with Executive Order or more in any one year. Before 12875 EPA has involved state, local, and Dated: April 29, 1996. promulgating an EPA rule for which a Carol M. Browner, tribal governments in the development written statement is needed, section 205 Administrator. of this rule. EPA, Region 9, consulted of the UMRA generally requires EPA to For the reasons set out in the with ADEQ through conference calls, identify and consider a reasonable preamble, part 131 of title 40 of the meetings and review of draft and final number of regulatory alternatives and Code of Federal Regulations is amended documents. EPA held a meeting on adopt the least costly, most cost- as follows: December 14, 1995, in Phoenix, AZ, effective or least burdensome alternative with members of the potentially that achieves the objectives of the rule. PART 131ÐWATER QUALITY impacted public (e.g., municipalities, The provisions of section 205 do not STANDARDS industries and environmental groups) to apply when they are inconsistent with discuss the proposed action. EPA held applicable law. Moreover, section 205 1. The authority citation for part 131 a public hearing on the proposed action allows EPA to adopt an alternative other continues to read as follows: on February 29, 1996. than the least costly, most cost-effective Authority: 33 U.S.C. 1251 et seq. H. Regulatory Flexibility Act or least burdensome alternative if the Administrator publishes with the final Subpart DÐ[Amended] rule an explanation why that alternative The Regulatory Flexibility Act (5 2. Section 131.31 is amended by was not adopted. Before EPA establishes U.S.C. 601 et seq.) requires EPA to adding paragraphs (b), and (c), to read any regulatory requirements that may assess whether its regulations create a as follows: disproportionate effect on small entities. significantly or uniquely affect small Among its provisions, the Act directs governments, including tribal § 131.31 Arizona. EPA to prepare and publish an initial governments, it must have developed * * * * * regulatory flexibility analysis (IRFA) for under section 203 of the UMRA a small (b) The following waters have, in any proposed rule which may have a government agency plan. The plan must addition to the uses designated by the significant impact on a substantial provide for notifying potentially State, the designated use of fish number of small entities. For purposes affected small governments, enabling consumption as defined in R18–11–101 of this rulemaking, small entities are officials of affected small governments (which is available from the Arizona small dischargers, whether industrial or to have meaningful and timely input in Department of Environmental Quality, municipal. the development of EPA regulatory Water Quality Division, 3033 North proposals with significant Federal Pursuant to section 605(b) of the Central Ave., Phoenix, AZ 85012): intergovernmental mandates, and COLORADO MAIN STEM RIVER Regulatory Flexibility Act (5 U.S.C. informing, educating, and advising 605(b)), the Administrator certifies that BASIN: small governments on compliance with Hualapai Wash this rule will not have a significant the regulatory requirements. economic impact on a substantial MIDDLE GILA RIVER BASIN: As noted above, this rule is limited to Agua Fria River (Camelback Road to number of small entities. This rule is the designation of the fish consumption limited to the designation of the fish Avondale WWTP) use for fourteen waters within Arizona, Galena Gulch consumption use for fourteen waters and the requirement that EPA or Gila River (Felix Road to the Salt within Arizona, and the requirement Arizona implement a monitoring River) that EPA or Arizona implement a program to assess attainment of a State- Queen Creek (Headwaters to the monitoring program to assess attainment adopted water quality standard. EPA Superior WWTP) of a specified State-adopted water has determined that this rule contains Queen Creek (Below Potts Canyon) quality standard. In light of the limited no regulatory requirements that might SAN PEDRO RIVER BASIN: geographic scope of the use designations significantly or uniquely affect small Copper Creek included in the final rule adopted by governments. EPA has also determined SANTA CRUZ RIVER BASIN: EPA (i.e., fourteen waterbodies), the that this rule does not contain a Federal Agua Caliente Wash Agency does not believe that there will mandate that may result in expenditures Nogales Wash be significant impacts associated with of $100 million or more for State, local, Sonoita Creek (Above the town of this aspect of the rule. The mercury and tribal governments, in the aggregate, Patagonia) monitoring program, moreover, will be or the private sector in any one year. Tanque Verde Creek carried out by EPA and ADEQ, and does Thus, today’s rule is not subject to the Tinaja Wash not itself impose any additional requirements of sections 202 and 205 of Davidson Canyon obligations on small entities. the UMRA. UPPER GILA RIVER BASIN 20694 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

Chase Creek (c) To implement the requirements of R18–11–108.A.5 with respect to effects of mercury on wildlife, EPA (or the State with the approval of EPA) shall implement a monitoring program to assess attainment of the water quality standard. [FR Doc. 96–11080 Filed 5–6–96; 8:45 am] BILLING CODE 6560±50±P federal register May 7,1996 Tuesday Equipment; FinalRule in HelicopterTypeDesignforExternal Type CertificationProcedures:Changes 14 CFRPart21 Federal AviationAdministration Transportation Department of Part V 20695 20696 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations

DEPARTMENT OF TRANSPORTATION in response to the NPRM. Accordingly, certificate, when the rotocraft is being the final rule is adopted as proposed in used in operations conducted under Federal Aviation Administration the NPRM. [part 133].’’ However, when the original helicopter noise certification rules were Background 14 CFR Part 21 adopted in part 21, external equipment [Docket No. 28334; Amendment No. 21±73] Statement of the Problem was not excluded from the acoustical change provisions of § 21.93. Thus, RIN 2120±AF10 The certification procedures for aeronautical products and parts are except for helicopters operated under Amendment of the Type Certification contained in 14 CFR part 21. Under part part 133, the addition of external Procedures for Changes in Helicopter 21, an applicant for approval of a equipment was, prior to this Type Design to Attach or Remove change to a helicopter type certificate amendment, subject to the acoustical change provisions of § 21.93. This External Equipment must show compliance with the noise amendment of § 21.93 reconciles the regulations in 14 CFR part 36 (part 36) AGENCY procedural treatment of external : Federal Aviation if the change in type design may equipment added to helicopters with Administration (FAA), DOT. increase the noise level of the helicopter the intent of § 21.93(b)(4) by expanding ACTION: Final rule. (an acoustical change). Section 21.93 the acoustical change exception to defines an ‘‘acoustical change’’ and SUMMARY: This final rule amends the include carriage of external equipment. existing helicopter noise certification classifies the aircraft which must History of Aircraft Noise Certification procedures with respect to certain demonstrate compliance with part 36 Regulations Relevant to This changes in type designs. The following an acoustical change. Section Amendment applicability of the noise certification 21.93(b)(4) describes helicopters procedures is amended to exclude those required to demonstrate compliance On November 3, 1969, the changes in type design that involve the with part 36 for an acoustical change, Administrator of the FAA adopted part attachment or removal of external and specifically excludes helicopters 36 entitled ‘‘Noise Standards: Aircraft equipment, floats and skis, and certain designated exclusively for ‘‘agricultural Type Certification.’’ That action airframe and operational changes made aircraft operations,’’ ‘‘dispensing implemented the FAA’s regulatory noise to accommodate such changes in type firefighting materials,’’ or ‘‘carrying abatement program by prescribing type design (acoustical change requirements). external loads.’’ The intent of the certification noise standards for Also excluded from the applicability of existing § 21.93(b)(4) is to exclude subsonic turbojet powered airplanes. the acoustical change requirements are helicopters designated exclusively to Procedural changes were concurrently helicopter flight operations with doors carry external loads from the made to part 21, ‘‘Certification and/or windows removed or in an open requirement to demonstrate compliance Procedures for Products and Parts,’’ to position. This amendment also makes with part 36. provide criteria and requirements for This amendment addresses type U.S. helicopter noise certification demonstrating compliance with the certification (including noise regulations more consistent with the specifications in part 36 (34 FR 18355, requirements) procedures for changes to International Civil Aviation November 18, 1969). The noise helicopter type designs to configure Organization (ICAO) standards. certification requirements of parts 21 helicopters for carriage of external and 36 are designed to promote the EFFECTIVE DATE: May 7, 1996. equipment. External equipment is incorporation of noise abatement FOR FURTHER INFORMATION CONTACT: defined herein as any instrument, technology into aircraft design. Parts 21 Mr. Kenneth E. Jones, Research and mechanism, part, apparatus, or and 36 have been amended as Engineering Branch (AEE–110), accessory that is attached to or extends appropriate to add new aircraft types to Technology Division, Office of from the helicopter exterior but is not the certification requirements or change Environment and Energy, FAA, 800 used nor is intended to be used in the technical specifications as Independence Avenue, SW., operating or controlling a helicopter in necessary. Subsequently, helicopter Washington, D.C. 20591; telephone flight and its not part of an airframe or noise certification requirements were (202) 267–8933, facsimile (202) 267– engine. Examples of external equipment adopted with amendment 36–14 to part 5594. are spotlights, cameras, airborne signs, 36 and amendment 21–61 to part 21 (53 SUPPLEMENTARY INFORMATION: The and cargo tanks and baskets. FR 3534, February 5, 1988). purpose of this rulemaking is to amend External equipment may be attached The first amendment to part 21 the applicability of the helicopter noise to a helicopter as a Class A Rotorcraft relevant to the original aircraft noise certification procedures to exclude External Load Combination under 14 certification regulation was amendment those changes in helicopter type design CFR part 133 (part 133) ‘‘Rotorcraft 21–27 (34 FR 18355, November 10, that involve the attachment or removal External Load Operations’’, or 1969). That amendment established the of external equipment, floats and skis, alternatively, the external equipment general requirement that an applicant and certain airframe and operational may be attached to the helicopter as a must demonstrate compliance with the changes made to accommodate such change in type design under Subpart D applicable provisions of the part 36 changes in type design (acoustical of part 21. The noise certification procedures prior to issuance of an change requirements). Also excluded requirements do not apply to any original, amended, or supplemental type from the acoustical change requirements helicopter, regardless of airworthiness certificate. The same amendment to part are helicopter flight operations with certification category, that is designated 21 included the addition under doors and/or windows removed or in an exclusively for carrying external loads § 21.93(b) that specified an ‘‘acoustical open position. This amendment is based pursuant to part 133. Section 133.51 change’’ as any voluntary change in type on Notice of Proposed Rulemaking states that ‘‘[a] Rotocraft External-Load design of a transport category or (NPRM) Notice No. 95–15 (60 FR 48790, Operator Certificate is a current and turbojet-powered airplane that may September 20, 1995; Docket No. 28334) valid airworthiness certificate for each increase the noise levels of that in which comments were invited. No rotocraft . . . listed by registration airplane. Section 21.93 was comments were received in the docket number on a list attached to the subsequently amended in response to Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20697 the promulgation of part 36 noise after-market addition by individual instrument, mechanism, part, apparatus, standards for propeller-driven airplanes operators to meet specific mission appurtenance, or accessory (e.g., (Amdt. 21–42; 40 FR 1029, January 6, needs. Given the potential variety of spotlights, cameras and other optical 1975), supersonic airplanes (Amdt. 21– external equipment, the nature of the devices, public address systems, hoists, 47; 43 FR 28406, June 29, 1978), external equipment is not considered airborne signs, tow banners, cargo tanks commuter category airplanes (Amdt. part of the basic design of a given and baskets, emergency flotation gear, 21–59; 52 FR 1806, January 15, 1987), helicopter and does not influence the personnel platforms, wire strike kits, and helicopters (Admt. 21–61; 53 FR basic aerodynamic design or the crop spraying equipment, scientific 3534, February 5, 1988). incorporation of noise abatement apparatus and their accessories) that is Section 21.93 has also been amended technology into the helicopter design. not used or intended to be used in to exclude certain changes in aircraft As stated in the preamble of the final operating or controlling an aircraft in type design from the acoustical change rule (cited previously) for the original flight, that is attached to the helicopter, requirements. The necessity for helicopter noise certification and is not part of an airframe or engine. excluding these changes in type design rulemaking, ‘‘. .. the [helicopter] noise This amendment applies to changes in became apparent only after experience standards apply [only] to internal load the airframe made to: was gained from implementation of the configurations.’’ (1) Accommodate the addition or original noise certification regulations This amendment is consistent with a removal of external equipment: for the aircraft type in question. For similar provision in the applicability (2) Facilitate the use of external turbojet-powered airplanes, amendment section of the helicopter noise equipment; or 21–56 (47 FR 756, January 7, 1982) certification standard approve by the (3) Facilitate the safe operation of the excludes time-limited engine and/or ICAO under its International Standards helicopter with external equipment nacelle changes, where the change in and Recommended Practices: mounted on the helicopter. type design specifies that the airplane Environmental Protection; Annex 16, Examples of airframe changes that are may not be operated for a period of Volume 1, Chapters 8 and 11 (Third excepted include fairings, attachment more than 90 days, and amendment 21– Edition-July 1993). This amendment hardware, cavities constructed in the 62 (53 FR 16360, May 6, 1988) excludes brings the acoustical change provision airframe to accommodate conformally both gear down flight with one or more in the U.S. noise certification attached equipment, and bubble retractable landing gear down during regulations into closer harmony with windows. This amendment also the entire flight and spare engine and that used by foreign noise certification excludes from the acoustical change nacelle carriage external to the skin of authorities. provision external load attaching means, the aircraft. For propeller-driven The FAA has determined that this the airworthiness certification of which commuter category and propeller-driven amendment will provide benefits in the is specified in §§ 27.865 and 29.865. small airplanes, amendment 21–63 (53 form of regulatory relief to the This amendment excludes the FR 47394, November 22, 1988) excludes helicopter industry and to individual addition or removal of floats and skis on ‘‘antique’’ airplanes (i.e., those airplanes helicopter operators. This amendment helicopters from the acoustical change that have flight time before January 1, will result in little or no increase of provision. This amendment makes it 1955) and land configurated aircraft public exposure to helicopter noise clear that any changes in the operating reconfigured with floats and skis. emissions. Prior to this amendment, limitations placed on the helicopter as type certification procedures and the Synopsis of the Amendment a consequence of the addition or helicopter regulations changed by this removal of external equipment, floats, This amendment changes the amendment imposed an undue financial and skis is not an acoustical change. acoustical change provisions of § 21.93 burden on the helicopter industry and Similarly, it also excludes flight to exclude helicopters that have been operators without providing any operations conducted with one or more modified by the addition or removal of measurable benefit to the public. external equipment mounted on the Details of the amendment and doors and/or windows removed or in an helicopter airframe or floats (rigid or limitations of the amendment are open position. bag) and skis. This amendment also provided in the following analysis. The FAA has included addition or excludes certain changes in helicopter removal of floats and skis on helicopters type design from the acoustical change § 21.93 Classification of changes in type under this amendment in order to requirements otherwise applicable to design. provide the same provision for certain airframe changes made to Part 21 prescribes that certain types of helicopters as is currently provided accommodate the external equipment aircraft, including helicopters, must small propeller driven airplanes and and to helicopter flight operations with demonstrate compliance with the propeller driven commuter category doors and/or windows removed or in an applicable requirements of part 36 if a airplanes under § 21.93(b)(3). The open position. This amendment also change in type design results in an acoustical change requirements of applies to any operating limitations acoustical change. Section 21.93 § 21.93 do not require a noise placed on, or removed from the specifies an ‘‘acoustical change’’ as any certification compliance demonstration helicopter as a consequence of the voluntary change in type design for such airplanes because the FAA did addition or removal of external (including operational limitations) that not have a rational basis to consider equipment, floats, and skis. may increase the noise levels of an such design configurations in the The FAA recognizes the utility aspect aircraft. This amendment, applicable original rulemaking that established of the helicopter as an aerial platform of only to helicopters, excludes the noise certification requirements for external equipment. It is a common installation or removal of external theses aircraft. While the addition of practice in the helicopter industry to equipment from being considered an floats and skis adversely affects the add or remove external equipment as acoustical change. The amendment aerodynamic performance, and mission requirements vary. Although specifically excludes from the acoustical consequently the noise levels, of both external equipment may be offered by change provision the addition or small airplanes and helicopters, the the original manufacturer of the removal of all external equipment where FAA lacks the acoustical and helicopter, it is usually added as an ‘‘external equipment’’ means any performance data necessary to develop 20698 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations noise certification regulations relevant The FAA also deletes by this Flexibility Act of 1980 requires agencies to small airplanes and helicopters that amendment the previous text in to analyze the economic impact of are reconfigured by the addition of § 21.93(b)(4)(i) and (ii). Those regulatory changes on small entities. floats or skis. paragraphs indicated examples of Finally, the Office of Management and If a noise compliance demonstration design changes which would be Budget directs agencies to assess the is otherwise required for compliance considered acoustical changes. Since effect of regulatory changes on with part 36, the noise flight test must § 21.93(b) already makes it clear that international trade. In conducting these be conducted without any external ‘‘any voluntary change in the type analyses, the FAA has determined that equipment, floats, or skis mounted to design of an aircraft that may increase this rule: (1) Will generate benefits the helicopter and with doors and the noise levels of the aircraft is an exceeding costs; (2) is not ‘‘significant’’ windows mounted and closed (i.e., ‘acoustical change’ . . . .’’ paragraphs as defined in the Executive Order and aerodynamically clean configuration) § 21.93(b)(4)(i) and (ii) could have been DOT’s policies and procedures; (3) will unless otherwise approved or required erroneously interepreted to indicate that not have a significant impact on a by the FAA. In granting such approvals (any) change to a muffler (including a substantial number of small entities; (4) or establishing such requirements, the change to a quieter muffler) is by will lessen restraints on international rationale for the FAA’s decision will be regulation an acoustical change. trade. These analyses, available in the based on whether or not the measured Paragraphs (i) and (ii) did not represent docket, are summarized below. helicopter noise levels from a proposed a regulatory requirement and added Benefits nothing toward the interpretation of the noise compliance demonstration would The final rule will provide regulatory be representative of a ‘‘clean acoustical change requirements for helicopters. The amended text addresses relief and a cost savings of $31,690,468 configured’’ helicopter. For example, (non-discounted) or $23,409,159 assume a cavity was created in the the definition of external equipment and the exclusions discussed earlier in this discounted, over a ten year period, to fuselage (as a related airframe change) to helicopter manufacturers, modifers, and accommodate a conformally (flush) synopsis. The FAA has examined such factors operators. Of this amount, the projected fitted camera. Under this amendment, cost savings for part 36 noise both the camera and the cavity are as the utility aspect of the helicopter mission, the necessity for the addition certification testing are as follows: excluded from the acoustical change Appendix H testing for helicopter requirements of part 21. However, in the or removal of external equipment to meet mission needs, the relevance of manufacturers is $4,800,000 (non- event of any future noise testing of that discounted) or $4,264,244 discounted; helicopter for a change in type design such equipment with regard to the incorporation of noise abatement Appendix J testing for helicopter unrelated to the camera and cavity, such manufacturers is $3,000,000 (non- a noise test without the camera mounted technology in the design of the helicopter, and the desire for discounted) or $2,330,305 discounted; and the cavity exposed would likely and Appendix J Testing for modifers, lead to unrepresentative noise levels commonality of U.S. noise certification regulations with relevant international $22,500,000 (non-discounted) or due to alternation of the aerodynamic $15,803,025 discounted. The FAA will performance of the helicopter. In this standards and foreign national regulations. After consideration of these also realize administrative cost savings example, during the actual noise test for under these appendices as follows: the unrelated change in type design, the factors, the Administrator determined that the amendment is consistent with Appendix H, $222,460 (non-discounted) FAA would probably require that the or $178,312 discounted; Appendix J, flush-mounted camera be inserted in its the criteria set forth for proposing and amending aircraft noise abatement $231,740 (non-discounted) or $173,525 associated fuselage cavity or that the discounted; and Appendix J (for fuselage cavity be covered in a manner regulations under the authority of § 611(d) of the Federal Aviation Act of modifiers), $936,268 (non-discounted) that would return the fuselage to its or $659,748 discounted. original aerodynamic shape. Similarly, 1958. any analysis for the purpose of International Compatibility Costs demonstrating a ‘‘non-acoustical The FAA has reviewed corresponding From a number of noise certification change’’ under § 21.93 must assume ICAO standards and JAA regulations, studies, the FAA has learned that performance levels consistent with an were they exist. This amendment makes allowing applicants to attach external aerodynamically clean helicopter U.S. helicopter noise certification equipment to their helicopters will (relative to the changes in type design regulations more consistent with the result in no net increase in helicopter excluded under this amendment). That ICAO standards. noise or, at worst, insignificant is, a decrease in a noise certification increases in noise levels. level effected by the addition of Paper Reduction Act Regulatory Flexibility Determination equipment excluded under this In accordance with the Paperwork amendment may not be used to Reduction Act of 1980 (Pub. L. 96–511), The Regulatory Flexibility Act of 1980 ‘‘mathematically’’ offset an increase in there are no requirements for (RFA) was enacted by Congress to noise from a change in type design not information collection associated with ensure that small entities are not affected by this amendment. For this amendment. unnecessarily and disproportionately example, assuming the certification burdened by government regulations. basis for a given helicopter is part 36 Regulatory Evaluation Summary The RFA requires a Regulatory Appendix J, an increase in the flyover Three principal requirements pertain Flexibility Analysis if a rule will have noise certification level caused by the to the economic impacts of changes to a significant economic impact, either upgrade of a transmission may not be the Federal Regulations. First, Executive detrimental or beneficial, on a offset by the decrease in noise from the Order 12866 directs Federal agencies to substantial number of small entities. assumed addition of external promulgate new regulations or modify FAA Order 2100.14A, Regulatory equipment, floats or skis as part of the existing regulations only if the expected Flexibility Criteria and Guidance change in type design for the benefits to society outweigh the prescribes standards for complying with transmission. expected costs. Second, the regulatory RFA review requirements in FAA Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and Regulations 20699 rulemaking actions. The order defines determined that this rule does not Authority: 42 U.S.C. 7572; 49 U.S.C. ‘‘small entities’’ in terms of size significantly affect the human 106(g), 40105, 40113, 44701–44702, 44707, thresholds, ‘‘significant economic environment. A Finding of No 44709, 44711, 44713, 44715, 45303. impact’’ in terms of annualized cost Significant Impact has been prepared 2. Section 21.93 is amended by threshold, and ‘‘substantial number’’ as and placed in the docket. revising paragraph (b)(4) to read as a number that is not less than eleven Justification for Immediate Adoption follows: and that is more than one-third of the small entities subject to the final rule. The FAA has determined that further § 21.93 Classification of changes in type The FAA has determined that, in delay in the adoption of this rule would design. accordance with the above order, the cause undue burden to U.S. * * * * * final rule to part 21 will not have a manufacturers, modifiers, and operators (b) * * * significant economic impact on a of helicopters. This final rule does not substantial number of small entities. impose new regulatory requirements; (4) Helicopters except: The final rule will directly affect two rather, it corrects an oversight in the (i) Those helicopters that are types of entities: (1) Light helicopter original helicopter noise certification designated exclusively: manufacturers, and (2) small helicopter rulemaking, which unnecessarily (A) for ‘‘agricultural aircraft modifiers. applied acoustical change noise operations’’, as defined in § 137.3 of this For small aircraft and aircraft parts certification requirements to some chapter, as effective on January 1, 1966; manufacturers, Order 2100.14A external load configurations. Although specifies a size threshold for the preamble of that original rulemaking (B) for dispensing fire fighting classification as a small entity as 75 or stated that the noise certification materials; or fewer employees. Based upon this size regulations applied only to internal load (C) for carrying external loads, as threshold, all of the affected U.S. configurations, the necessary defined in § 133.1(b) of this chapter, as manufacturers are large. For the purpose amendatory language that would effect effective on December 20, 1976. of the regulatory flexibility that applicability was not made in all of (ii) Those helicopters modified by determination, an aircraft modifier is the relevant portions of the noise installation or removal of external considered a small entity if it has 200 certification regulations. At present, equipment. For purposes of this on fewer employees. there are several applications pending paragraph, ‘‘external equipment’’ means The FAA concludes that a substantial for changes in helicopter type design any instrument, mechanism, part, number of small entities (less than one which call for the addition of external apparatus, appurtenance, or accessory third) will not be significantly affected equipment. Without this rule, those that it attached to, or extends from, the by the final rule. Therefore, the final applicants are unintentionally subject to helicopter exterior but is not used nor rule will not impose a significant costly noise certification testing. is intended to be used in operating or economic impact on a substantial Accordingly, the FAA has determined controlling a helicopter in flight and is number of small entities, and a that good cause exist to make this rule not part of an airframe or engine An regulatory flexibility analysis is not effective in less than 30 days. ‘‘acoustical change’’ does not include: required. Conclusion (A) addition or removal of external Trade Impact Assessment The FAA has determined that this equipment; The FAA has determined that the final rule: (1) is not a significant (B) changes in the airframe made to final rule will neither affect the sale of regulatory action under Executive Order accommodate the addition or removal of foreign aviation products and services 12866; (2) is not a significant regulatory external equipment, to provide for an in the United States nor the sale of U.S. action under DOT Regulatory Policies external load attaching means, to products and services in foreign and Procedures (44 FR 11034, February facilitate the use of external equipment countries. This determination is based 26, 1979); and (3) will not have a or external loads, or to facilitate the safe on the FAA’s contention that the final significant economic impact, positive or operation of the helicopter with external rule will align the U.S. standards more negative, on a substantial number of equipment mounted to, or external closely with foreign standards for noise small entities under the criteria of the loads carried by, the helicopter; certification of external equipment. Regulatory Flexibility Act. In addition, (C) reconfiguration of the helicopter Federalism Implications this final rule will have little or no affect by the addition or removal of floats and on trade opportunities for U.S. firms The regulations herein will not have skis; doing business overseas, or on foreign a substantial direct effects on the states, (D) flight with one or more doors and/ firms doing business in the United on the relationship between the national or windows removed or in an open States. government and the states, or on the position; or distribution of power and List of Subjects in 14 CFR Part 21 (E) any changes in the operational responsibilities among the various Aircraft, Helicopters, Noise control. limitations placed on the helicopter as levels of government. Therefore, in a consequence of the addition or accordance with Executive Order 12612, The Amendment removal of external equipment, floats, it is determined that this proposed rule Accordingly, the Federal Aviation and skis, or flight operations with doors would not have sufficient federalism Administration amends 14 CFR part 21 and/or windows removed or in an open implications to warrant the preparation as follows: position. of a Federalism Assessment. * * * * * Environmental Analysis PART 21ÐCERTIFICATION Issued in Washington DC on May 1, 1996. PROCEDURES FOR PRODUCTS AND David R. Hinson, Pursuant to the Department of PARTS Transportation ‘‘Policies and Procedures Administrator. for Considering Environmental Impacts’’ 1. The authority citation for part 21 [FR Doc. 96–11374 Filed 5–6–96; 8:45 am] (FAA Order 1050.1D), the FAA has continues to read as follows: BILLING CODE 4910±13±M i

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CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING MAY

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. 12 CFR Laws 3 CFR 5...... 19524 Public Laws Update Services (numbers, dates, etc.) 523±6641 Proclamations: 19...... 20330 For additional information 523±5227 6889...... 19503 20...... 19524 6890...... 19803 Presidential Documents 28...... 19524 6891...... 20419 523±5227 205...... 19662, 19678 Executive orders and proclamations Administrative Orders: The United States Government Manual 523±5227 220...... 20386 Memorandums: 250...... 19805 Other Services April 26, 1996 ...... 19505 263...... 20338 Electronic and on-line services (voice) 523±4534 April 28, 1996 ...... 19507 308...... 20344 509...... 20350 Privacy Act Compilation 523±3187 4 CFR TDD for the hearing impaired 523±5229 614...... 20125 Proposed Rules: Proposed Rules: 21...... 19205 207...... 20399 ELECTRONIC BULLETIN BOARD 215...... 19863 5 CFR Free Electronic Bulletin Board service for Public Law numbers, 220...... 20399 Federal Register finding aids, and list of documents on public 300...... 19509 221...... 20399 inspection. 202±275±0920 Ch. LXIX ...... 20117 13 CFR FAX-ON-DEMAND 7 CFR Proposed Rules: You may access our Fax-On-Demand service. You only need a fax 28...... 19511 121...... 20191 machine and there is no charge for the service except for long 53...... 19155 14 CFR distance telephone charges the user may incur. The list of 54...... 19155 documents on public inspection and the daily Federal Register’s 272...... 19155 21...... 20696 table of contents are available using this service. The document 273...... 19155 39 ...... 19540, 19807, 19808, numbers are 7050-Public Inspection list and 7051-Table of 915...... 19512 19809, 19811, 19813, 19815, Contents list. The public inspection list will be updated 916...... 19160 20125, 20127, 20616, 20636, immediately for documents filed on an emergency basis. 917...... 19160 20638, 20639, 20641, 20643, 946...... 20119 20644, 20646, 20668, 20669, NOTE: YOU WILL ONLY GET A LISTING OF DOCUMENTS ON 956...... 20121 20671, 20672, 20674, 20676, FILE AND NOT THE ACTUAL DOCUMENT. Documents on 985...... 20122 20677, 20679, 20681, 20682 public inspection may be viewed and copied in our office located 1007...... 20124 43...... 19498 at 800 North Capitol Street, N.W., Suite 700. The Fax-On-Demand 1280...... 19514 71 ...... 19541, 19542, 19816, telephone number is: 301±713±6905 Proposed Rules: 19817 958...... 20188 73...... 20127 FEDERAL REGISTER PAGES AND DATES, MAY 1005...... 19861 159...... 19784 1007...... 19861 205...... 19164 19155±19502...... 1 1011...... 19861 323...... 19164 19503±19804...... 2 1046...... 19861 385...... 19166 19805±20116...... 3 Proposed Rules: 20117±20418...... 6 8 CFR 39...... 20192, 20194 20419±20700...... 7 3...... 19976 71 ...... 19590, 19591, 19592, 242...... 19976 19593 9 CFR 15 CFR 78...... 19976 902...... 19171 130...... 20421 Proposed Rules: Proposed Rules: 946...... 19594 92...... 20189, 20190 16 CFR 93...... 20190 94...... 20190 1500...... 19818 95...... 20190 Proposed Rules: 96...... 20190 254...... 19869 98...... 20190 1210...... 20503 301...... 19564 304...... 19578 17 CFR 308...... 19578 1...... 19177, 19830 317...... 19564, 19578 3...... 20127 318...... 19564, 19578 5...... 19830 319...... 19578 31...... 19830 320...... 19564 Proposed Rules: 381...... 19564, 19578 1...... 19869 ii Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Reader Aids

156...... 19869 25 CFR 81...... 20458 803...... 20491 Proposed Rules: 131...... 20686 804...... 20491 18 CFR 250...... 19600 180 ...... 19842, 19845, 19847, 805...... 20491 1300...... 20117 19849, 19850, 19852, 19854, 806...... 20491 Proposed Rules: 26 CFR 19855 808...... 20491 161...... 19211 1 ...... 19188, 19189, 19544, 300...... 20473 810...... 20491 250...... 19211 19546 355...... 20473 812...... 20491 284...... 19211, 19832 301...... 19189 Proposed Rules: 813...... 20491 815...... 20491 346...... 19878 602...... 19189 51...... 19231 52 ...... 19233, 19601, 20199, 816...... 20491 Proposed Rules: 820...... 20491 19 CFR 1...... 20503 20200, 20201, 20504 63...... 19887 822...... 20491 10...... 19834 301...... 20503 70...... 20202 828...... 20491 103...... 19835 29 CFR 81...... 19233 833...... 20491 Proposed Rules: 180...... 19233 834...... 20491 101...... 19834 1...... 19982 836...... 20491 2...... 19982 170...... 19889 300...... 19889, 20202 837...... 20491 20 CFR 4...... 19982 846...... 20491 5...... 19982 Ch. I ...... 19432 345...... 20070 871...... 20493 6...... 19982 601...... 19982 41 CFR 2401...... 19468 7...... 19982 617...... 19982 2402...... 19468 8...... 19982 50±203...... 19982 626...... 19982 60±1...... 19982 2404...... 19468 22...... 19982 2405...... 19468 658...... 19982 60±30...... 19982 24...... 19982 2406...... 19468 702...... 19982 60±250...... 19366, 19982 32...... 19982 2409...... 19468 60±741...... 19336, 19982 21 CFR 96...... 19982 2411...... 19468 504...... 19982 2412...... 19468 101...... 20096 42 CFR 507...... 19982 2413...... 19468 201...... 20096 508...... 19982 405...... 19722 2414...... 19468 369...... 20096 530...... 19982 486...... 19722 2415...... 19468 500...... 19542 1910...... 19547 2416...... 19468 501...... 20096 43 CFR 1978...... 19982 2417...... 19468 582...... 19542 Proposed Rules: 11...... 20560 2419...... 19468 589...... 19542 4...... 19770 2420...... 19468 740...... 20096 44 CFR 2426...... 19468 801...... 20096 30 CFR 61...... 19197 2428...... 19468 Proposed Rules: Proposed Rules: 64...... 19857 2429...... 19468 25...... 19476 904...... 19881 206...... 19197 2432...... 19468 102...... 19220 946...... 19885 2434...... 19468 46 CFR 130...... 19220 2436...... 19468 31 CFR 131...... 19220 10...... 19858 2437...... 19468 133...... 19220 361...... 20437 15...... 19858 2442...... 19468 135...... 19220 114...... 20556 2452...... 19468 33 CFR 136...... 19220 116...... 20556 2453...... 19468 137...... 19220 100...... 19192, 20132 117...... 20556 139...... 19220 Proposed Rules: 165...... 19192, 19841 118...... 20556 901...... 19891 145...... 19220 401...... 19548 119...... 20556 905...... 19891 146...... 19220 Proposed Rules: 120...... 20556 906...... 19891 150...... 19220 100...... 20196 121...... 20556 908...... 19891 152...... 19220 154...... 20084 122...... 20556 915...... 19891 155...... 19220 155...... 20084 170...... 20556 916...... 19891 156...... 19220 173...... 20556 917...... 19891 158...... 19220 36 CFR 175...... 20556 922...... 19891 160...... 19220 1228...... 19552 176...... 20556 928...... 19891 161...... 19220 Proposed Rules: 177...... 20556 932...... 19891 163...... 19220 100...... 19220 178...... 20556 933...... 19891 164...... 19220 117...... 19223 179...... 20556 935...... 19891 165...... 19220 180...... 20556 936...... 19891 166...... 19220 37 CFR 181...... 20556 942...... 19891 168...... 19220 Proposed Rules: 182...... 20556 945...... 19891 169...... 19220 1...... 19224 183...... 20556 952...... 19891 210...... 20104 Ch. II ...... 20197 185...... 20556 971...... 19891 211...... 20104 38 CFR 47 CFR 49 CFR 22 CFR 2...... 20133, 20437 3...... 20155 228...... 20494 126...... 19841 3...... 20438 73...... 20490 397...... 20496 514...... 20437 4...... 20438, 20440 Proposed Rules: 564...... 20497 9...... 20134 1...... 19236, 20505 571 ...... 19201, 19202, 19560, 24 CFR 19...... 20447 2...... 19236 19561, 20170, 20172, 20497 0...... 19187 20...... 20447 21...... 19236 604...... 19562 201...... 19788 73 ...... 19601, 20206, 20207, 609...... 19562 290...... 19188 40 CFR 20505 1051...... 19859 941...... 19708 52 ...... 19193, 19555, 20136, 94...... 19236 1053...... 19859 970...... 19708 20139, 20142, 20145, 20147, 1312...... 19859 Proposed Rules: 20453, 20455, 20458 48 CFR Proposed Rules: 901...... 20358 70...... 20150 801...... 20491 571...... 19602 Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Reader Aids iii

1100...... 19236 1120...... 19236 1140...... 19236 Proposed Rules: 1101...... 19236 1121...... 19236 1141...... 19236 17...... 19237 1102...... 19236 1122...... 19236 1142...... 19236 600...... 19390 1103...... 19236 1123...... 19236 1143...... 19236 601...... 19390 1104...... 19236 1124...... 19236 1144...... 19236 602...... 19390 1105...... 19236 1125...... 19236 1145...... 19236 603...... 19390 1106...... 19236 1126...... 19236 1146...... 19236 605...... 19390 1107...... 19236 1127...... 19236 1147...... 19236 611...... 19390 1108...... 19236 1128...... 19236 1148...... 19236 619...... 19390 1109...... 19236 1129...... 19236 1149...... 19236 620...... 19390 1110...... 19236 1130...... 19236 1312...... 19902 1111...... 19236 1131...... 19236 621...... 19390 1112...... 19236 1132...... 19236 625...... 20506 1113...... 19236 1133...... 19236 50 CFR 649...... 20207 1114...... 19236 1134...... 19236 253...... 19171 650...... 20207 1115...... 19236 1135...... 19236 255...... 19171 651...... 20207 1116...... 19236 1136...... 19236 620...... 20175 652...... 19604 1117...... 19236 1137...... 19236 661...... 20175 673...... 19902 1118...... 19236 1138...... 19236 672...... 19976 1119...... 19236 1139...... 19236 675...... 19976 iv Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Reader Aids

REMINDERS Miscellaneous amendments; Islands groundfish; Pentaerythritol stearates; The rules and proposed rules published 5-7-96 comments due by 5-14- comments due by 5-17- in this list were editorially Adjudication; pensions, 96; published 3-20-96 96; published 4-17-96 compiled as an aid to Federal compensation, dependency, Gulf of Alaska and Bering Prosulfuron; comments due Register users. Inclusion or etc.: Sea and Aleutian by 5-17-96; published 4- exclusion from this list has no Vicious habits; references Islands groundfish; 17-96 legal significance. removed; published 5-7-96 comments due by 5-17- Sodium salt of acifluorfen; 96; published 4-2-96 Board of Veterans Appeals: comments due by 5-17- Northeast multispecies; 96; published 4-17-96 RULES GOING INTO Appeals regulations and comments due by 5-15- rules of practice-- Superfund program: EFFECT TODAY 96; published 4-18-96 National oil and hazardous Single member and panel Summer flounder; comments substances contingency decisions, ENVIRONMENTAL due by 5-17-96; published plan-- PROTECTION AGENCY reconsiderations, etc.; 4-22-96 published 5-7-96 National priorities list Air quality implementation DEFENSE DEPARTMENT update; comments due Disabilities rating schedule: plans; √A√approval and Acquisition regulations: by 5-13-96; published Fibromyalgia; published 5-7- promulgation; various Ball and roller bearings; 4-11-96 96 States; air quality planning comments due by 5-17- National priorities list purposes; designation of Organization, functions, and 96; published 3-18-96 update; comments due areas: authority delegations: EDUCATION DEPARTMENT by 5-13-96; published Ohio; published 5-7-96 Miscellaneous amendments; Family educational rights and 4-12-96 published 5-7-96 Superfund program: privacy: Water pollution; effluent National oil and hazardous Regulatory burden reduction; guidelines for point source substances contingency COMMENTS DUE NEXT comments due by 5-13- categories: plan-- WEEK 96; published 3-14-96 Ore mining and dressing; National priorities list comment period ENVIRONMENTAL update; published 5-7- extension; comments due PROTECTION AGENCY 96 AGRICULTURE by 5-13-96; published 4- DEPARTMENT Air pollution control: FEDERAL 10-96 Federal regulatory review; COMMUNICATIONS Rural Utilities Service FARM CREDIT comments due by 5-13- COMMISSION Rural development: ADMINISTRATION 96; published 4-11-96 Radio stations; table of Distance learning and Farm credit system: telemedicine grant Air quality implementation assignments: √ √ Loan policies and program; comments due plans; A approval and Virginia and North Carolina; promulgation; various operations-- published 5-7-96 by 5-16-96; published 4- Loan underwriting; Federal 16-96 States; air quality planning TRANSPORTATION purposes; designation of regulatory review; DEPARTMENT AGRICULTURE areas: comments due by 5-15- Federal Aviation DEPARTMENT Kentucky; comments due by 96; published 4-15-96 Administration Administrative regulations: 5-17-96; published 4-17- FEDERAL Aircraft products and parts; Claims based on 96 COMMUNICATIONS certification procedures: negligence, wrongful act, Michigan; comment period COMMISSION Helicopter design; noise or omission; Federal extension; comments due Personal communications level compliance; type regulatory review; by 5-16-96; published 5-1- services: certificates; published 5-7- comments due by 5-13- 96 Mobile-satellite services; 96 96; published 4-12-96 Clean Air Act: allocation of 70 MHz TRANSPORTATION ARCHITECTURAL AND Accidental release range satellites operation DEPARTMENT TRANSPORTATION prevention; regulated use; comment period reopening; comments due Federal Highway BARRIERS COMPLIANCE substances and thresholds by 5-17-96; published 4- Administration BOARD list; comments due by 5- 15-96; published 4-15-96 25-96 Motor vehicle safety Americans with Disabilities Radio broadcasting: standards: Act; implementation: Proposed stay of effectiveness; comments Broadcast facilities; minor Hazardous materials Accessibility guidelines-- due by 5-15-96; changes without transportation; technical Detectable warnings at published 4-15-96 construction permit; amendment; published 5- curb ramps, hazardous comments due by 5-16- 7-96 vehicular areas, and Fuel and fuel additives-- Federal gasoline Reid 96; published 4-8-96 UNITED STATES reflecting pools; Vapor Pressure volatility Radio stations; table of INFORMATION AGENCY comments due by 5-13- 96; published 4-12-96 standard (1996 and assignments: Exchange visitor program: 1997); relaxation; Alaska; comments due by COMMERCE DEPARTMENT Program extension comments due by 5-15- 5-13-96; published 3-29- procedures, research National Oceanic and 96; published 4-15-96 96 Atmospheric Administration programs design and Hazardous waste program Colorado; comments due by conduct, etc. Fishery conservation and authorizations: 5-13-96; published 3-29- Partial stay; published 5- management: Louisiana; comments due by 96 7-96 Atlantic bluefish; comments 5-13-96; published 3-28- Hawaii; comments due by VETERANS AFFAIRS due by 5-13-96; published 96 5-13-96; published 3-29- DEPARTMENT 3-28-96 Pesticides; tolerances in food, 96 Acquisition regulations: Limited access management animal feeds, and raw New Mexico; comments due Loan guaranty and of Federal fisheries in and agricultural commodities: by 5-13-96; published 3- vocational rehabilitation off of Alaska Diflubenzuron; comments 29-96 and counseling programs; Gulf of Alaska and Bering due by 5-17-96; published Telecommunications Act of published 5-7-96 Sea and Aleutian 4-17-96 1996; implementation: Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Reader Aids v

Local competition provisions; INTERIOR DEPARTMENT reflecting pools; TRANSPORTATION comments due by 5-16- Surface Mining Reclamation comments due by 5-13- DEPARTMENT 96; published 4-25-96 and Enforcement Office 96; published 4-12-96 Federal Highway Television broadcasting: Permanent program and Omnibus Transportation Administration abandoned mine land Employee Testing Act of Motor carrier safety standards: Cable Television Consumer 1991: Protection and reclamation plan New drivers; safety Competition Act of 1992-- submissions: Drug and alcohol testing performance history; Ohio; comments due by 5- requirements for foreign- comments due by 5-13- Leased commercial 17-96; published 4-17-96 based drivers operating in 96; published 3-14-96 access; comments due U.S.; participation by by 5-15-96; published JUSTICE DEPARTMENT Canadian and Mexican TRANSPORTATION 4-15-96 Americans with Disabilities laboratories; comments DEPARTMENT Television stations; table of Act; implementation: due by 5-13-96; published Federal Railroad assignments: Accessibility guidelines-- 3-28-96 Administration Railroad workplace safety: Wisconsin; comments due Detectable warnings at TRANSPORTATION by 5-13-96; published 3- curb ramps, hazardous DEPARTMENT Roadway worker protection; 29-96 vehicular areas, and Federal Aviation comments due by 5-13- reflecting pools; Administration 96; published 3-14-96 HEALTH AND HUMAN comments due by 5-13- Airports: TRANSPORTATION SERVICES DEPARTMENT 96; published 4-12-96 Passenger facility charges; DEPARTMENT Food and Drug TRANSPORTATION comments due by 5-16- National Highway Traffic Administration DEPARTMENT 96; published 4-16-96 Safety Administration Human drugs: Coast Guard Airworthiness directives: Motor vehicle safety Investigational new drugs; Federal regulatory reform: Boeing; comments due by standards: clinical investigator Regattas and marine 5-14-96; published 3-21- Lamps, reflective devices, disqualification; comments parades; comments due 96 and associated due by 5-16-96; published by 5-17-96; published 4- Dornier; comments due by equipment-- 2-16-96 17-96 5-15-96; published 4-4-96 Signal lamps geometric Labeling of drug products Regattas and marine parades: JanAero Devices; comments visibility requirements, (OTC)-- Miami Super Boat Race; due by 5-17-96; published and rear side marker comments due by 5-15- Phenylpropanolamine 3-15-96 color; harmonization; 96; published 3-26-96 preparation drug McDonnell Douglas; comments due by 5-16- products; warning label; River Race Augusta; comments due by 5-13- 96; published 12-27-95 comments due by 5-14- comments due by 5-15- 96; published 3-18-96 96; published 3-26-96 96; published 2-14-96 Airworthiness standards: LIST OF PUBLIC LAWS Topical antimicrobial drug TRANSPORTATION Transport category products for over-the- DEPARTMENT airplanes-- Note: No public bills which counter human use-- Americans with Disabilities Reference stall speed; have become law were Act; implementation: OTC first aid antibiotic comments due by 5-17- received by the Office of the drug products; final Accessibility guidelines-- 96; published 1-18-96 Federal Register for inclusion monograph; comments Detectable warnings at Class E airspace; comments in today's List of Public due by 5-14-96; curb ramps, hazardous due by 5-13-96; published Laws. published 2-14-96 vehicular areas, and 4-8-96 Last List May 6, 1996