Pages 55201±55544 Vol. 61 10±25±96 No. 208 federal register October 25,1996 Friday 1 II Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996

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2 III

Contents Federal Register Vol. 61, No. 208

Friday, October 25, 1996

Agency for International Development Commodity Futures Trading Commission RULES PROPOSED RULES Commodities and services financed by AID; source, origin Commodity Exchange Act: and nationality rules Futures commission merchants, introducing brokers and Correction, 55361 leverage transaction merchants; financial reports, 55235–55238 Agricultural Marketing Service RULES Consumer Product Safety Commission Milk marketing orders: NOTICES Eastern Colorado, 55205–55206 Agency information collection activities: Olives grown in California and imported, 55202–55205 Proposed collection; comment request, 55278–55279 PROPOSED RULES Submission for OMB review; comment request, 55279– Milk marketing orders: 55280 Carolina et al., 55229–55230 Settlement agreements: Hartman Products, 55280–55281 Agriculture Department Corporation for National and Community Service See Agricultural Marketing Service See Food Safety and Inspection Service NOTICES See Grain Inspection, Packers and Stockyards Agency information collection activities: Administration Submission for OMB review; comment request, 55281 Defense Department Alcohol, Tobacco and Firearms Bureau See Navy Department PROPOSED RULES Alcohol, tobacco, and other excise taxes: Drug Enforcement Administration Alcoholic beverages, denatured alcohol, tobacco NOTICES products, and cigarette papers and tubes; exportation, Applications, hearings, determinations, etc.: 55238–55239 Med-Pharmex, Inc., 55315 Sanofi Winthrop, Inc., 55315 Blind or Severely Disabled, Committee for Purchase From People Who Are Education Department See Committee for Purchase From People Who Are Blind or NOTICES Severely Disabled Agency information collection activities: Submission for OMB review; comment request; Children and Families Administration correction, 55361 NOTICES Postsecondary education: Grant and cooperative agreements; availablity, etc.: Student assistance general provisions— Child care and development block grants; Tribal child Approved ‘‘ability-to-benefit’’ tests and passing scores; counts; comment request, 55305–55306 list, 55542–55543

Coast Guard Employment and Training Administration NOTICES PROPOSED RULES Ports and waterways safety: Adjustment assistance: California coast port access routes, 55248–55252 Gordon Garment et al., 55316 NOTICES Guardian Life Insurance Co., 55317 Meetings: Hydro-Fit, Inc., et al., 55317 Towing Safety Advisory Committee, 55353 Lee Apparel Co., 55317 Privacy Act: Lee Thomas, Inc., 55318 Systems of records, 55353–55354 National Garment Co., 55318 SCI Systems, Inc., et al., 55318 NAFTA transitional adjustment assistance: Commerce Department Lee Thomas, Inc., 55318–55319 See Foreign-Trade Zones Board Owens-Illinois, Inc., 55319 See International Trade Administration SCI Systems, Inc., et al., 55319–55320 See National Oceanic and Atmospheric Administration See Patent and Trademark Office Employment Standards Administration See Wage and Hour Division Committee for Purchase From People Who Are Blind or NOTICES Severely Disabled Minimum wages for Federal and federally-assisted NOTICES construction; general wage determination decisions, Procurement list; additions and deletions, 55267–55268 55320–55321 IV Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Contents

Energy Department Federal Deposit Insurance Corporation See Federal Energy Regulatory Commission NOTICES See Hearings and Appeals Office, Energy Department Agency information collection activities: PROPOSED RULES Submission for OMB review; comment request, 55302 Contractor employee protection program, 55230 Federal Emergency Management Agency Environmental Protection Agency PROPOSED RULES RULES Disaster assistance: Hazardous waste program authorizations: Restoration of damaged facilities; eligible costs limitation Montana, 55223–55225 to standards in place at time of disaster declaration PROPOSED RULES date, 55262–55263 Air quality implementation plans: NOTICES Preparation, adoption, and submittal— Disaster and emergency areas: Prevention of significant deterioration and Maryland, 55302–55303 nonattainment new source review; Federal South Carolina, 55303 regulatory review, 55252–55253 Virginia, 55303 Air quality implementation plans; approval and promulgation; various States: Federal Energy Regulatory Commission Pennsylvania, 55253–55259 RULES Air quality planning purposes; designation of areas: Natural Gas Policy Act: Washington, 55259 Interstate natural gas pipelines— Hazardous waste: Business practices standards, 55208–55213 Solid waste and hazardous waste recycling definition; NOTICES meeting, 55252 Electric rate and corporate regulation filings: Pesticide programs: IES Utilities Inc. et al., 55284–55286 Risk/benefit information; reporting requirements, 55259– Environmental statements; availability, etc.: 55260 Iroquois Gas Transmission System, L.P., 55287–55288 Superfund program: Transcontinental Gas Pipe Line Corp., 55288 National oil and hazardous substances contingency Hydroelectric applications, 55288–55289 plan— Minnesota Power & Light Co.; National Register of Historic National priorities list update, 55260–55262 Places; restricted service list for programmatic NOTICES agreement for managing properties, 55289 Agency information collection activities: Applications, hearings, determinations, etc.: Proposed collection; comment request, 55293–55294 American Municipal Power Ohio, Inc., 55281–55282 Environmental statements; availability, etc.: Equitrans, L.P., 55282 Agency statements— Frontier Gas Storage Co., 55282 Comment availability, 55294–55295 Kentucky Utilities Co., 55282 Weekly receipts, 55294 Natural Gas Pipeline Co. of America, 55282–55283 Pesticide registration, cancellation, etc.: New Jersey Natural Energy Co., 55283 Buckman Laboratories, Inc., 55295–55296 PanEnergy Trading & Market Services, L.L.C., 55283 Johnson & Johnson, Inc., 55296 Texas Eastern Transmission Corp., 55283–55284 Zeneca Inc., 55297 United Illuminating Co., 55284 Reports; availability, etc.: Williams Natural Gas Co.; correction, 55361 State Revolving Fund; funding framework policy and Williston Basin Interstate Pipeline Co., 55284 guidance, 55297 Superfund; response and remedial actions, proposed Federal Highway Administration settlements, etc.: RULES Denver Radium Site, CO, 55302 National Highway System Designation Act; implementation: Superfund program: Operation of motor vehicles by intoxicated minors; CERCLA reimbursement petitions; submittal and review Federal-aid highway funds withholding; zero- procedures; guidance document availability, 55298– tolerance laws sanction program implementation, 55302 55213–55218 Federal Maritime Commission Executive Office of the President PROPOSED RULES See Trade Representative, Office of United States Maritime carriers in domestic offshore commerce: Annual statements by States’ attorneys general; access; Federal Aviation Administration withdrawn, 55263–55264 PROPOSED RULES NOTICES Airworthiness directives: Complaints filed: Beech, 55233–55235 Red Hot Transport, 55303 Bell, 55231–55233 Rulemaking petitions; summary and disposition, 55230– Federal Reserve System 55231 NOTICES NOTICES Banks and bank holding companies: Exemption petitions; summary and disposition, 55354 Change in bank control, 55303–55304 Passenger facility charges; applications, etc.: Formations, acquisitions, and mergers, 55304 Burbank-Glendale-Pasadena Airport, CA, 55354–55355 Meetings; Sunshine Act, 55304–55305 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Contents V

Federal Retirement Thrift Investment Board Indian Affairs Bureau RULES NOTICES Thrift savings plan: Environmental statements; availability, etc.: Continuation of eligibility— Swinomish Marina, LaConner, WA, 55311–55312 District of Columbia Financial Responsibility and Tribal-State Compacts approval; Class III (casino) gambling: Management Assistance Authority; participation Blackfeet Indian Tribe of Blackfeet Reservation, MT, for certain employees, 55201–55202 55312

Federal Transit Administration NOTICES Indian Health Service Environmental statements; availability, etc.: NOTICES Third Street Light Rail Project, San Francisco, CA, Organization, functions, and authority delegations: 55355–55356 Contract Health Service Delivery Area (CHSDA)— Jamestown S’Klallam Tribe, WA; geographic Fish and Wildlife Service boundaries redesignation, 55309–55311 NOTICES Environmental statements; availability, etc.: Interior Department Incidental take permits— See Fish and Wildlife Service Fort Morgan Peninsula, AL; Alabama beach mouse; See Indian Affairs Bureau correction, 55311 See Land Management Bureau See National Park Service Food and Drug Administration See Surface Mining Reclamation and Enforcement Office NOTICES Meetings: Advisory committees, panels, etc., 55306–55309 International Development Cooperation Agency See Agency for International Development Food Safety and Inspection Service RULES Meat and poultry inspection: International Trade Administration Pathogen reduction; hazard analysis and critical control NOTICES point (HACCP) systems Antidumping: Food safety; Federal/State conference, 55207 Brake drums and rotors from— Small plants; demonstration projects, 55206–55207 China, 55269–55271 Color picture tubes from— Foreign-Trade Zones Board Japan, 55271–55272 NOTICES Coutervailing duties: Applications, hearings, determinations, etc.: Extruded rubber thread from— Illinois Malaysia, 55272–55278 Nissan Industrial Engine Manufacturing USA, Inc.; spark ignition industrial engine manufacturing Justice Department plant, 55268–55269 See Drug Enforcement Administration Shell Oil Co.; oil refinery complex, 55268

Grain Inspection, Packers and Stockyards Administration Labor Department NOTICES See Employment and Training Administration Meetings: See Employment Standards Administration Advisory Committee, 55267 See Mine Safety and Health Administration See Pension and Welfare Benefits Administration Health and Human Services Department See Wage and Hour Division See Children and Families Administration NOTICES See Food and Drug Administration Agency information collection activities: See Indian Health Service Submission for OMB review; comment request, 55315– NOTICES 55316 Federal claims; interest rates on overdue debts, 55305

Hearings and Appeals Office, Energy Department Land Management Bureau NOTICES NOTICES Decisions and orders, 55289–55293 Environmental statements; availability, etc.: Winnemucca District, NM— Housing and Urban Development Department Santa Fe Pacific Gold Corp. Lone Tree Mine Expanison NOTICES Project, 55312 Grants and cooperative agreements; availability, etc.: Meetings: Facilities to assist homeless— Resource advisory councils— Excess and surplus Federal property, 55311 Bakersfield, CA, 55312 Low income housing: Realty actions; sales, leases, etc.: Qualified census tracts and difficult development areas; Nevada, 55313 statutorily mandated designation for tax credit, Resource management plans, etc.: 55536–55540 Yuma District, AZ, 55313 VI Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Contents

Mine Safety and Health Administration Pension and Welfare Benefits Administration RULES NOTICES Coal mine safety and health: Employee benefit plans; prohibited transaction exemptions: Underground coal mining— Beall Corp. et al., 55321–55325 Diesel-powered equipment; usage approval, exhaust gas Lehman Brothers, Inc., et al., 55325–55326 monitoring, and safety requirements, 55412–55534 Personnel Management Office National Aeronautics and Space Administration PROPOSED RULES PROPOSED RULES Pay under General Schedule: Acquisition regulations: Locality-based comparability payments— Contractor financial management reporting, 55264–55266 Metropolitan areas, 55227–55229 NOTICES Agency information collection activities: Public Health Service Proposed collection; comment request, 55326–55327 See Food and Drug Administration See Indian Health Service National Credit Union Administration RULES Research and Special Programs Administration Practice and procedure: PROPOSED RULES Board procedure rules; agenda items determination, Hazardous materials: 55207–55208 Hazardous materials transportation— Regulations harmonization with dangerous goods National Highway Traffic Safety Administration international standards, 55364–55410 RULES NOTICES Drunk driving prevention programs; incentive grant criteria, Meetings: 55218–55223 Pipeline Safety Advisory Committees, 55356–55357 National Highway System Designation Act; implementation: Operation of motor vehicles by intoxicated minors; Securities and Exchange Commission Federal-aid highway funds withholding; zero NOTICES tolerance laws sanction program implementation, Self-regulatory organizations; proposed rule changes: 55213–55218 Government Securities Clearing Corp., 55341–55342 National Association of Securities Dealers, Inc., 55342– National Oceanic and Atmospheric Administration 55345 RULES Pacific Stock Exchange, Inc., 55345–55346 Pacific Salmon Commission: Applications, hearings, determinations, etc.: Fraser River sockeye and pink salmon; inseason orders, First Trust Special Situations Trust et al., 55328–55330 55225–55226 John Hancock Tax-Exempt Income Fund, 55330–55331 NOTICES Public utility holding company filings, 55331–55333 Meetings: Van Kampen American Capital Equity Opportunity Trust North Pacific Fishery Management Council, 55278 et al., 55333–55336 National Park Service Variable Investment Trust et al., 55336–55341 NOTICES Agency information collection activities: Social Security Administration Submission for OMB review; comment request, 55313– NOTICES 55314 Social security benefits: Meetings: Cost-of-living increase, SSI monthly benefit amounts Mississippi River Coordinating Commission, 55314 increase, average of total wages, contribution and benefit base, etc., 55346–55351 Navy Department NOTICES Surface Mining Reclamation and Enforcement Office Patent licenses; non-exclusive, exclusive, or partially PROPOSED RULES exclusive: Permanent program and abandoned mine land reclamation Precision Quincy Corp. et al., 55281 plan submissions: Kentucky, 55247–55248 Nuclear Regulatory Commission NOTICES NOTICES Agency information collection activities: Meetings: Proposed collection; comment request, 55314–55315 Nuclear Safety Research Review Committee, 55327 Reactor Safeguards Advisory Committee, 55327–55328 Surface Transportation Board NOTICES Office of United States Trade Representative Railroad operation, acquisition, construction, etc.: See Trade Representative, Office of United States Dakota Rail, Inc., 55357 RailAmerica, Inc., 55357–55358 Patent and Trademark Office RULES Trade Representative, Office of United States Trademarks: NOTICES Fastener Quality Act— Generalized System of Preferences: Insignias of manufacturers and private label Annual Review (1995)— distributors; recordation fees establishment, 55223 Public hearings site, 55351 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Contents VII

Intellectual property rights protection, countries denying; Separate Parts In This Issue policies and practices: Portugal, 55351–55352 Part II Transportation Department Transportation Department, Research and Special Programs See Coast Guard Administration, 55364–55410 See Federal Aviation Administration See Federal Highway Administration See Federal Transit Administration Part III See National Highway Traffic Safety Administration Labor Department, Mine Safety and Health Administration, See Research and Special Programs Administration 55412–55534 See Surface Transportation Board NOTICES Part IV Aviation proceedings: Agreements filed; weekly receipts, 55352 Housing and Urban Development Department, 55536–55540 Certificates of public convenience and necessity and foreign air carrier permits; weekly applications, Part V 55352–55353 Education Department, 55542–55543 Treasury Department See Alcohol, Tobacco and Firearms Bureau Additional information, including a list of public laws, NOTICES telephone numbers, reminders, and finding aids, appears in Agency information collection activities: the Reader Aids section at the end of this issue. Submission for OMB review; comment request, 55358– 55360

Wage and Hour Division Electronic Bulletin Board PROPOSED RULES McNamara-O’Hara Service Contract Act: Free Electronic Bulletin Board service for Public Law Federal service contracts; labor standards; minimum numbers, Federal Register finding aids, and a list of health and welfare benefits requirements, 55239– documents on public inspection is available on 202–275– 55247 1538 or 275–0920. VIII Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Contents

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.

5 CFR 37 CFR 1620...... 55201 2...... 55223 Proposed Rules: 40 CFR 531...... 55227 271...... 55223 7 CFR Proposed Rules: 932...... 55202 Ch. 1 ...... 55252 944...... 55202 51...... 55252 1137...... 55202 52 (2 documents) ...... 55252, Proposed Rules: 55253 1005...... 55229 81...... 55259 1007...... 55229 153...... 55259 1011...... 55229 159...... 55259 1046...... 55229 300 (2 documents) ...... 55260, 55261 9 CFR 304 (2 documents) ...... 55206, 44 CFR 55207 Proposed Rules: 308 (2 documents) ...... 55206, 206...... 55262 55207 310 (2 documents) ...... 55206, 46 CFR 55207 Proposed Rules: 320 (2 documents) ...... 55206, 552...... 55263 55207 327 (2 documents) ...... 55206, 48 CFR 55207 Proposed Rules: 381 (2 documents) ...... 55206, 1842...... 55264 55207 1852...... 55264 416 (2 documents) ...... 55206, 55207 49 CFR 417 (2 documents) ...... 55206, Proposed Rules: 55207 171...... 55362 10 CFR 172...... 55362 173...... 55362 Proposed Rules: 175...... 55362 708...... 55230 176...... 55362 12 CFR 178...... 55362 791...... 55207 50 CFR 14 CFR 300...... 55225 Proposed Rules: Ch. I ...... 55230 39 (2 documents) ...... 55231, 55233 17 CFR Proposed Rules: 1...... 55235 31...... 55235 18 CFR 284...... 55208 22 CFR 228...... 55361 23 CFR 1210...... 55213 1313...... 55218 27 CFR Proposed Rules: 252...... 55238 290...... 55238 29 CFR Proposed Rules: 4...... 55239 30 CFR 7...... 55412 31...... 55412 32...... 55412 36...... 55412 70...... 55412 75...... 55412 Proposed Rules: 917...... 55247 33 CFR Proposed Rules: 166...... 55248 55201

Rules and Regulations Federal Register Vol. 61, No. 208

Friday, October 25, 1996

This section of the FEDERAL REGISTER Patrick J. Forrest, (202) 942–1662. of the Authority who is covered by contains regulatory documents having general SUPPLEMENTARY INFORMATION: The FERS or CSRS, whether the employee applicability and legal effect, most of which Federal Retirement Thrift Investment elected Federal retirement coverage are keyed to and codified in the Code of under the 1995 Act or under the 1995 Federal Regulations, which is published under Board (Board) administers the Thrift 50 titles pursuant to 44 U.S.C. 1510. Savings Plan (TSP), which was Act as amended by the Omnibus Act. established by the Federal Employees’ Regulatory Flexibility Act The Code of Federal Regulations is sold by Retirement System Act of 1986, Pub. L. the Superintendent of Documents. Prices of 99–335, 100 Stat. 514 (1986), which has I certify that these regulations will not new books are listed in the first FEDERAL been codified, as amended, largely at 5 have a significant economic impact on REGISTER issue of each week. U.S.C. 8401–8479 (1994). The TSP is a a substantial number of small entities tax-deferred retirement savings plan for because the regulations will affect only Federal employees that is similar to a small number of employees of a single FEDERAL RETIREMENT THRIFT cash or deferred arrangements INVESTMENT BOARD agency of the Government of the District established under section 401(k) of the of Columbia. 5 CFR Part 1620 Internal Revenue Code. The District of Columbia Financial Paperwork Reduction Act Thrift Savings Plan Participation for Responsibility and Management I certify that these regulations do not Certain Employees of the District of Assistance Act of 1995 (1995 Act), Pub. require additional reporting under the Columbia Financial Responsibility and L. 104–8, section 101, 109 Stat. 97, 100, criteria of the Paperwork Reduction Act Management Authority established the District of Columbia Financial Responsibility and of 1980. AGENCY: Federal Retirement Thrift Management Assistance Authority Investment Board. Waiver of Notice of Proposed (Authority) as an entity within the Rulemaking and 30-Day Delay of ACTION: Interim rule with request for Government of the District of Columbia. Effective Date comments. Under the 1995 Act, a person who separated from Federal employment and Under 5 U.S.C. 553 (b)(3)(B) and SUMMARY: The Executive Director of the who became employed by the Authority Federal Retirement Thrift Investment (d)(3), I find that good cause exists for within two months could elect to Board is publishing interim regulations waiving the general notice of proposed participate in the Federal retirement to implement sections 102 (e) and (f) of rulemaking and for making these system in which he or she last the District of Columbia Financial regulations effective in less than 30 participated before separating from Responsibility and Management days. Elections made under these Federal service. On January 29, 1996, Assistance Act of 1995 (Act), as regulations will affect some qualifying the Board published an interim rule, amended. Under this Act, a newly hired employees’ participation in the TSP with request for comments in the employee of the District of Columbia retroactive to their entry on duty with Federal Register (61 FR 2872), which Financial Responsibility and the Authority. The intent of the governed TSP participation by eligible Management Assistance Authority legislation is to allow eligible employees employees of the Authority who elected (Authority) can elect FERS retirement to participate in the TSP as soon as retirement coverage under the Federal coverage; and certain persons who practicable. A delay in the effective date Employees’ Retirement System (FERS) separate from Federal employment and of these regulations would be contrary or the Civil Service Retirement System who are employed by the Authority may to the intent of the legislation and to the (CSRS). The Board received no elect to participate in the Federal public interest because it would delay comment on that interim rule. the election opportunity for eligible retirement system in which they last On April 26, 1996, the 1995 Act was employees of the Authority. participated before separating from amended by the Omnibus Consolidated Federal service. These regulations Rescissions and Appropriations Act of Submission to Congress and the address participation in the Thrift 1996 (Omnibus Act), Pub. L. 104–134, General Accounting Office Savings Plan (TSP) by eligible section 153, 110 Stat. 1321, reprinted in employees of the Authority who elect 1996 U.S.C.C.A.N. (110 Stat. 1321) 221– Under section 801(a)(1)(A) of the Federal retirement coverage. These 224. Under the 1995 Act, as amended, Administrative Procedure Act (APA), as regulations do not apply to eligibility to a newly hired employee of the amended by the Regulatory Enforcement participate in retirement programs Authority can elect FERS retirement Fairness Act of 1996, Pub. L. 104–121, administered by the Office of Personnel coverage; and an employee who leaves title II, 110 Stat. 847, 857–875 (5 U.S.C. Management (OPM). Federal service to work for the 801(a)(1)(A)), the Board submitted a DATES: This interim rule is effective Authority can elect continued Federal report containing this rule and other October 25, 1996. Comments must be retirement coverage, but only if the required information to the U.S. Senate, received on or before December 24, election is made before the employee the U.S. House of Representatives, and 1996. separates from Federal service and if the Comptroller General of the United ADDRESSES: Comments may be sent to employment with the Authority States prior to the publication of this Patrick J. Forrest, Federal Retirement commences within three days after rule in today’s Federal Register. This Thrift Investment Board, 1250 H Street, separating from Federal service. rule is not a major rule as defined in N.W., Washington, D.C. 20005. The Board is amending its interim section 804(2) of the APA as amended FOR FURTHER INFORMATION CONTACT: rule so that it applies to any employee (5 U.S.C. 804(2)). 55202 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations

Unfunded Mandates Reform Act of § 1620.111 Definitions. (d) If an employee of the Authority 1995 * * * * * who is described in paragraphs (b) and Basic pay means basic pay as defined (c) of this section is employed by the Pursuant to the Unfunded Mandates in 5 U.S.C. 8331(3), and it is the rate of Authority during an open season but Reform Act of 1995, Pub. L. 104–4, pay used in computing any amount the before the election period (the last section 201, 109 Stat. 48, 64, the effect individual is otherwise required to calendar month of the open season), that of this regulation on State, local, and contribute to the Civil Service open season will be considered the tribal governments and on the private Retirement and Disability Fund as a employee’s first open season. sector has been assessed. This condition for participating in the Civil (e) TSP employee contributions from regulation will not compel the Service Retirement System or the employees of the Authority are subject expenditure in any one year of $100 Federal Employees’ Retirement System, to the limits described at 5 CFR part million or more by any State, local, or as the case may be. 1600, subpart C. tribal governments in the aggregate or by * * * * * 6. Section 1620.118 is revised to read the private sector. Therefore, a as follows: statement under section 202, 109 Stat. 4. Section 1620.112 is revised to read 48, 64–65, is not required. as follows: § 1620.118 Failure to participate or delay in participation. List of Subjects in 5 CFR Part 1620 § 1620.112 Eligibility requirements. To be eligible to participate in the If an employee of the Authority who District of Columbia, Employment TSP, an employee of the Authority must elects to be covered by FERS or CSRS benefit plans, Government employees, be covered by FERS or CSRS pursuant fails to participate or is delayed in Pensions, Retirement. to the District of Columbia Financial participating in the TSP because of a Federal Retirement Thrift Investment Responsibility and Management delay in the implementation of the Act, Board. Assistance Act of 1995, as amended. the employee may request that Roger W. Mehle, 5. Section 1620.114 is revised to read retroactive corrective action be taken in accordance with 5 CFR part 1605, as Executive Director. as follows: though the delay were attributable to For the reasons set out in the § 1620.114 Employee contributions. employing agency error. Lost earnings preamble, 5 CFR Chapter VI is amended (a) An employee of the Authority who shall be payable pursuant to 5 CFR part as set forth below: is separated from Federal service for less 1606 due to delay described in this than 31 full calendar days before section, as though the delay were PART 1620ÐCONTINUATION OF commencing employment with the attributable to employing agency error. ELIGIBILITY Authority and who is covered by FERS [FR Doc. 96–27548 Filed 10–24–96; 8:45 am] or CSRS will be eligible to contribute to 1. The authority citation for part 1620 BILLING CODE 6760±01±P is revised to read as follows: the TSP as though he or she had transferred to the Authority from the Authority: 5 U.S.C. 8474 and 8432b; Pub. losing Federal agency, i.e., as though the DEPARTMENT OF AGRICULTURE L. 99–591, 100 Stat. 3341; Pub. L. 100–238, employee did not have a TSP separation 101 Stat. 1744; Pub. L. 100–659, 102 Stat. 3910; Pub. L. 101–508, 104 Stat. 1388; Pub. as defined by the TSP. Agricultural Marketing Service L. 104–106, 110 Stat. 186; Pub. L. 104–134, (b) An employee of the Authority who 110 Stat. 1321. is separated from Federal service for 31 7 CFR Parts 932 and 944 or more full calendar days before 2. Section 1620.110 is revised to read commencing employment with the [Docket No. FV96±932±3FIR] as follows: Authority and who is covered by FERS Olives Grown in California and § 1620.110 Scope. or CSRS will be eligible to contribute to Imported Olives; Establishment of the TSP as follows: The District of Columbia Financial Limited-Use Olive Grade and Size (1) If the employee was previously Requirements Responsibility and Management eligible to participate in the TSP, the Assistance Authority (Authority) was employee will be eligible to contribute AGENCY: Agricultural Marketing Service, established by the District of Columbia to the TSP in the first open season (as USDA. Financial Responsibility and determined in accordance with ACTION: Final rule. Management Assistance Act of 1995, paragraph (d) of this section) beginning Pub. L. 104–8, 109 Stat. 97, which was after the date the employee commences SUMMARY: The Department of amended by the Omnibus Consolidated employment with the Authority. Agriculture (Department) is adopting as Rescissions and Appropriations Act of (2) If the employee was not previously a final rule, without change, the 1996, section 153, Pub. L. 104–134, 110 eligible to participate in the TSP, the provisions of an interim final rule Stat. 1321. Although the Authority is an employee will be eligible to contribute authorizing the use of smaller-sized agency of the District of Columbia to the TSP in the second open season (as olives in the production of limited-use Government, certain of its employees determined in accordance with styles for olives grown in California. may elect Federal Employees’ paragraph (d) of this section) beginning This final rule allows more olives into Retirement System (FERS) or Civil after the date the employee commences market channels and is consistent with Service Retirement System (CSRS) employment with the Authority. current market demand for olives. As coverage. This subpart governs (c) An employee of the Authority with required under section 8e of the participation in the Thrift Savings Plan no period of prior Federal service who Agricultural Marketing Agreement Act (TSP) by employees of the Authority elects to be covered by FERS will be of 1937, this final rule also changes the who elect to be covered by FERS or eligible to contribute to the TSP in the olive import regulation so that it CSRS. second open season (as determined in conforms with the requirements 3. Section 1620.111 is amended by accordance with paragraph (d) of this established under the California olive revising the definition of Basic pay to section) beginning after the effective marketing order. read as follows: date of the FERS coverage. EFFECTIVE DATE: November 25, 1996. Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55203

FOR FURTHER INFORMATION CONTACT: has his or her principal place of importers should, thus, benefit from the Terry Vawter, California Marketing business, has jurisdiction to review the issuance of this rule. Field Office, Fruit and Vegetable Secretary’s ruling on the petition, Therefore, the AMS has determined Division, AMS, USDA, 2202 Monterey provided an action is filed not later than that this action will not have a Street, Suite 102B, Fresno, California, 20 days after date of the entry of the significant economic impact on a telephone (209) 487–5901; or Caroline ruling. substantial number of small entities. C. Thorpe, Marketing Specialist, There are no administrative An interim final rule was issued on Marketing Order Administration procedures which must be exhausted July 31, 1996, and published in the Branch, F&V, AMS, USDA, room 2522– prior to any judicial challenge to the Federal Register (61 FR 40507, August S, P.O. Box 96456, Washington, DC provisions of import regulations issued 5, 1996), with an effective date of 20090–6456; telephone: (202) 720–5127. under section 8e of the Act. August 8, 1996. That rule amended Small businesses may request Pursuant to requirements set forth in § 932.153 of the rules and regulations in information on compliance with this the Regulatory Flexibility Act (RFA), the effect under the order, and § 944.401 of regulation by contacting: Jay Guerber, Agricultural Marketing Service (AMS) the import regulations. That rule Marketing Order Administration has considered the economic impact of authorized the use of smaller-sized Branch, Fruit and Vegetable Division, this action on small entities. limited-use olives under the order and AMS, USDA, P.O. Box 96456, room The purpose of the RFA is to fit for importation into the United States. regulatory actions to the scale of 2523–S, Washington, DC 20090–6456; That rule provided a 30-day comment business subject to such actions in order telephone (202) 720–2491; Fax # (202) period which ended September 4, 1996. that small businesses will not be unduly 720–5698. No comments were received. or disproportionately burdened. Nearly all of the olives grown in the SUPPLEMENTARY INFORMATION: This final Marketing orders issued pursuant to the United States are produced in rule is issued under Marketing Act, and rules issued thereunder, are California. California olives are used for Agreement No. 148 and Order No. 932 unique in that they are brought about (7 CFR Part 932), as amended, regulating through group action of essentially canned black ripe whole, whole pitted, the handling of olives grown in small entities acting on their own and sliced olives which are eaten out of California, hereinafter referred to as the behalf. Thus, both statutes have small hand as hors d’oeuvres, or used as an ‘‘order.’’ The order is effective under the entity orientation and compatibility. ingredient in cooking, in salads, or on Agricultural Marketing Agreement Act Import regulations under the Act are pizzas. The canned ripe olive market is of 1937, as amended (7 U.S.C. 601–674), based on those established under essentially a domestic market. A few hereinafter referred to as the ‘‘Act.’’ Federal marketing orders. shipments of California olives are This final rule is also issued under There are 4 handlers of California exported. section 8e of the Act, which requires the olives who are subject to regulation Olive production has fluctuated from Secretary of Agriculture to issue grade, under the marketing order and a low of 24,200 tons during the 1972– size, quality, or maturity requirements approximately 1,200 olive producers in 73 crop year to a high of 163,023 tons for certain listed commodities, California. There are also approximately during the 1992–93 crop year. The including olives, imported into the 25 importers of olives subject to the California Olive Committee (committee) United States that are the same as, or olive import regulation. Small indicated that the total production for comparable to, those imposed upon the agricultural service firms, which the 1995–96 crop year was 73,648 tons. domestic commodities regulated under includes handlers and importers, have While there is no estimate yet available the Federal marketing orders. been defined by the Small Business for the 1996–97 crop, it is expected to The Department is issuing this rule in Administration (13 CFR 121.601) as be larger than the 1995–96 crop. Olive conformance with Executive Order those having annual receipts of less than trees are subject to alternate bearing 12866. $5,000,000, and small agricultural characteristics. This may result in high This rule has been reviewed under producers are defined as those whose production one year and low the next, Executive Order 12988, Civil Justice annual receipts are less than $500,000. which can cause the total crop to vary Reform. This rule is not intended to None of the domestic olive handlers greatly from year to year. have retroactive effect. This rule will may be classified as small entities. The Paragraph (a)(3) of § 932.52 of the not preempt any State or local laws, majority of producers and importers order provides that processed olives regulations, or policies, unless they may be classified as small entities. smaller than the sizes prescribed for present an irreconcilable conflict with This rule provides that smaller olives whole and whole pitted styles may be this rule. may be used in the production of used for limited-use styles, if The Act provides that administrative limited-use styles (sliced, wedged, recommended by the committee and proceedings must be exhausted before halved, or chopped) and will assist the approved by the Secretary. The parties may file suit in court. Under California olive industry as well as minimum sizes which can be authorized section 8c(15)(A) of the Act, any handler importers meet the increasing market for limited use were established in a subject to an order may file with the demand for such olives. Annual 1971 amendment to the marketing Secretary a petition stating that the domestic shipment data for olives order. The use of smaller olives for order, any provision of the order, or any indicate that for the last 5 seasons (1991 limited-use styles has been authorized obligation imposed in connection with to 1995), limited-use style shipments in all but two crop years since the order the order is not in accordance with law ranged from 35 percent to 41 percent of was amended in 1971. and request a modification of the order the total annual domestic shipments. Under the marketing order, olives or to be exempted therefrom. A handler Absent this rule, many smaller smaller than the prescribed minimum is afforded the opportunity for a hearing California olives would have to be sizes which are authorized for limited on the petition. After the hearing the disposed of in less-profitable, non- uses must be disposed of through less- Secretary would rule on the petition. canning uses, and the smaller olives profitable, non-canning uses such as in The Act provides that the district court from other countries could not be frozen or acidified forms, or crushed for of the United States in any district in imported into the United States. Both oil. Returns to producers are lower on which the handler is an inhabitant, or the California olive industry and olive fruit used for such purposes. 55204 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations

On June 13, 1996, the committee The limited-use size requirements allow Although these limited-use sizes are recommended, by a unanimous vote, the use of sizes which would otherwise effective for an indefinite period, the establishment of quality and size have to be disposed of for less- committee will continue to meet prior to regulations for limited-use size olives on profitable, non-canning uses. Permitting or during each crop year to consider a continuing basis pursuant to the use of such smaller olives for recommendations for modification of paragraph (a)(3) of § 932.52 of the order. limited-use styles should, therefore, these limited-use sizes. The dates and This rule authorizes the use of improve grower returns and help times of committee meetings are additional olives for limited-use styles handlers meet the increasing need for available from the committee or the by relaxing the minimum sizes and limited-use style olives. Department. Committee meetings are making more olives available to The authority for limited-use size open to the public and interested handlers for limited-use styles. olives has been subject to an annual persons may express their views at these The minimum sizes authorized for reconsideration by the committee since meetings. The Department will evaluate limited-use styles by this rule are first authorized in 1971. The committee the committee’s recommendations and smaller than those in effect last year, but now believes that making the authority other available information to determine are the same as those in effect for the for limited-use sizes continuous rather whether modification of the limited-use 1991–92, 1992–93, and 1993–94 crop than annual will provide handlers an sizes is needed. Further rulemaking will years. opportunity to plan for and develop be undertaken as necessary. The minimum sizes were reduced for new markets, thereby increasing the Section 8(e) of the Act requires that the 1991–92 season after handler tests market share of domestically-produced whenever grade, size, quality, or during the 1990–91 crop year confirmed olives. Such increased production of maturity requirements are in effect for the feasibility of using such fruit in limited-use sizes is expected to increase olives under a domestic marketing limited-use styles. However, the use of returns to growers. order, imported olives must meet the such fruit for limited-use styles was not Based on past production and same or comparable requirements. This recommended by the committee for the marketing experience, the committee rule allows smaller olives to be used in 1994–95 season. At that time, the believes that handlers will need smaller the production of limited-use styles handlers reported that the use of certain olives to meet market demand for under the marketing order. Therefore, a smaller olives in limited-use styles limited-use styles of canned olives. The corresponding change is needed in the resulted in greater percentages of broken committee also believes that the olive import regulation. slices, wedges, and halves. The handlers will need undersized olives on Canned ripe olives, and bulk olives inconsistencies of the product, a continuing basis to meet the market for processing into canned ripe olives, especially sliced olives, were not demand for limited-use styles of canned imported into the United States must favored by the handlers’ customers, and olives. meet certain minimum quality and size the committee recommended that use of To effectuate this change, Section requirements specified in Olive certain smaller olives for limited-use 932.153 of the order’s rules and Regulation 1 (7 CFR § 944.401). All styles be discontinued. At its recent regulations is being revised. The canned ripe olives are required to be meeting, the committee recommended committee recommended that these new inspected and certified prior to that limited-use sizes include the sizes minimum sizes become effective August importation (release from custody of the authorized prior to the 1994–95 season. 1, 1996, the beginning of the new crop United States Custom Service), and all There have been substantial changes year. bulk olives for processing into canned to olive pitting and slicing equipment Limited-use size olives are too small ripe olives must be inspected and since the 1993–94 season. New to meet the minimum size requirements certified prior to canning. ‘‘Canned ripe machinery yields a greater percentage of established for whole and whole pitted olives’’ means olives in hermetically unbroken slices, wedges, and halves by canned ripe olives. However, they are sealed containers and heat sterilized making such slices, wedges, and halves large enough to be suitable for under pressure, of two distinct types, thicker and less likely to break. The new processing into limited-use styles such ‘‘ripe’’ and ‘‘green-ripe’’, as defined in equipment also eliminates the problem as sliced, wedged, halved and chopped the U.S. Standards for Grades of Canned of double-feeding, in which the pitter’s styles. Absent this action, olives which Ripe Olives. The term does not include feed wheel sends not one, but two, are smaller than those authorized for Spanish-style green olives. olives into the same pitting chamber, whole and whole pitted canning uses Any lot of olives failing to meet the leaving one of the two olives unpitted. would have to be disposed of by import requirements may be exported, Because of these advances in the pitting handlers into non-canning uses such as disposed of, or shipped for exempt uses. and slicing equipment, the committee frozen or acidified forms, or crushed for Exportation or disposal of such olives believes that undersized olives may oil. would be accomplished under the again be utilized in limited-use styles The specified sizes for the different supervision of the Processed Products effectively and to the satisfaction of the olive variety groups are the minimum Branch of the Fruit and Vegetable handlers’ customers. sizes which are deemed desirable for Division, with the costs of certifying the This rule will help growers and use in the production of limited-use disposal of the olives borne by the handlers meet the increasing market styles at this time. As in past years, importer. Exempt olives are those demand for limited-use style olives permitting the use of smaller olives in imported for processing into oil or based upon current conditions. This the production of limited-use styles donation to charity. Any person may demand can be illustrated in the allows handlers to take advantage of the also import up to 100 pounds (drained increasing shipments of sliced olives in strong market for sliced, wedged, weight) of canned ripe olives or bulk the previous three years. Shipments of halved, and chopped style olives. By olives exempt from these quality and sliced olives increased by 17.11 percent permitting the use of such olives, size requirements. from the 1991–92 season to the 1992–93 handlers will be able to market more This final rule modifies paragraph season and by an additional 14.5 olives than would be permitted in the (b)(12) of the olive import regulation to percent from the 1992–93 season to the absence of this relaxation in size authorize the importation of bulk olives 1993–94 season. According to handlers, requirements, thus increasing returns to which do not meet the minimum size such shipments continue to increase. growers. requirements established for olives for Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55205 whole and whole pitted uses to be used Dated: October 18, 1996. file with the Secretary a petition stating in the production of limited-use styles. Eric M. Forman, that the order, any provisions of the Such authority will be on a continuing Acting Director, Fruit and Vegetable Division. order, or any obligation imposed in basis, rather than on an annual basis, as [FR Doc. 96–27456 Filed 10–24–96; 8:45 am] connection with the order is not in has been done in previous years. BILLING CODE 3410±02±P accordance with the law and requesting This final rule also modifies a modification of an order or to be paragraphs (b)(12)(i) through (b)(12)(v) exempted from the order. A handler is by relaxing the minimum sizes of olive 7 CFR Part 1137 afforded the opportunity for a hearing permitted to be imported for limited-use on the petition. After a hearing, the styles. [DA±96±13] Secretary would rule on the petition. Permitting the use of smaller olives in Milk in the Eastern Colorado Marketing The Act provides that the district court the production of limited-use styles will Area; Suspension of Certain of the United States in any district in which the handler is an inhabitant, or allow importers to better take advantage Provisions of the Order of the strong market for sliced, wedged, has its principal place of business, has halved, and chopped style olives. AGENCY: Agricultural Marketing Service, jurisdiction in equity to review the Importers will be able to import and USDA. Secretary’s ruling on the petition, market more olives than would be ACTION: Suspension of rule. provided a bill in equity is filed not permitted in the absence of this later than 20 days after the date of the relaxation in size requirements. SUMMARY: This document suspends entry of the ruling. certain performance standards of the The two largest exporters of ripe and Small Business Consideration bulk olives to the United States are Eastern Colorado Federal milk order. Spain and Mexico, respectively. Imports Mid-America Dairymen, Inc., a In accordance with the Regulatory comprise approximately 50 percent of cooperative association that supplies Flexibility Act (5 U.S.C. 601 et seq.), the total annual U.S. consumption. milk for the market’s fluid needs, Agricultural Marketing Service has In accordance with section 8e of the requested the suspension. The considered the economic impact of this Act, the U.S. Trade Representative has suspension will make it easier for action on small entities and has certified concurred with the issuance of this final handlers to qualify milk for pool status that this rule will not have a significant rule. and will prevent uneconomic milk economic impact on a substantial After consideration of all relevant movements that otherwise would be number of small entities. For the material presented, the information and required to maintain pool status for milk purpose of the Regulatory Flexibility recommendations submitted by the of producers who have been historically Act, a dairy farm is considered a ‘‘small committee, and other information, it is associated with the market. business’’ if it has an annual gross revenue of less than $500,000, and a found that finalizing the interim final EFFECTIVE DATES: The suspension to dairy products manufacturer is a ‘‘small rule, without change, as published in § 1137.7 is effective from September 1, business’’ if it has fewer than 500 the Federal Register (61 FR 40507, 1996, through February 28, 1997. The employees. For the purposes of August 5, 1996) will tend to effectuate suspensions to § 1137.12 are effective determining which dairy farms are the declared policy of the Act. September 1, 1996, through August 31, ‘‘small businesses,’’ the $500,000 per 1997. List of Subjects year criterion was used to establish a FOR FURTHER INFORMATION CONTACT: milk marketings guideline of 326,000 7 CFR Part 932 Clifford M. Carman, Marketing pounds per month. Although this Marketing agreements, Olives, Specialist, USDA/AMS/Dairy Division, guideline does not factor in additional Reporting and recordkeeping Order Formulation Branch, Room 2971, monies that may be received by dairy requirements. South Building, P.O. Box 96456, farmers, it should be an inclusive Washington, DC 20090–6456, (202) 720– 7 CFR Part 944 standard for most ‘‘small’’ dairy farmers. 9368. For purposes of determining a handler’s Avocados, Food grades and standards, SUPPLEMENTARY INFORMATION: Prior size, if the plant is part of a larger Grapefruit, Grapes, Imports, Kiwifruit, document in this proceeding: company operating multiple plants that Limes, Olives, Oranges. Notice of Proposed Suspension: collectively exceed the 500 employee For the reasons set forth in the Issued August 30, 1996; published limit, the plant will be considered a preamble, 7 CFR parts 932 and 944 are September 6, 1996 (61 FR 47092). large business even if the local plant has amended as follows: The Department is issuing this final fewer than 500 employees. rule in conformance with Executive For the month of June 1996, 429 dairy PART 932ÐOLIVES GROWN IN Order 12866. farmers were producers under the CALIFORNIA This final rule has been reviewed Eastern Colorado milk order. Of these, under Executive Order 12988, Civil all but 108 would be considered small Accordingly, the interim final rule Justice Reform. This rule is not intended businesses, having less than 326,000 amending 7 CFR part 932 which was to have a retroactive effect. This rule pounds of milk marketings a month. Of published at 61 FR 40507 on August 5, will not preempt any state or local laws, the dairy farmers in the small business 1996, is adopted as a final rule without regulations, or policies, unless they category, 181 marketed less than change. present an irreconcilable conflict with 100,000 pounds of milk, 105 marketed PART 944ÐFRUITS; IMPORT this rule. between 100,000 to 200,000 pounds, REGULATIONS The Agricultural Marketing and 35 marketed between 200,000 to Agreement Act of 1937, as amended (7 326,000 pounds of milk during June. Accordingly, the interim final rule U.S.C. 601–674), provides that There were 10 handlers operating 11 amending 7 CFR part 944, which was administrative proceedings must be plants for the month of June 1996 which published at 61 FR 40507 on August 5, exhausted before parties may file suit in were pooled, or regulated, under the 1996, is adopted as a final rule without court. Under section 608c(15)(A) of the Eastern Colorado order. The individual change. Act, any handler subject to an order may plants, for the most part, would meet 55206 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations the Small Business Administration’s movement of milk for the sole purpose were afforded opportunity to file written definition of a small business, having of pooling the milk of producers who data, views or arguments concerning less than 500 employees. However, most have been historically associated with this suspension. Two comments of these plants are part of larger the Eastern Colorado order. supporting the suspension were businesses that operate multiple plants For the months of September 1996 received. and meet the definition of large entities through February 1997, the restriction Therefore, good cause exists for on that basis. on the months when automatic pool making this order effective less than 30 This rule lessens the regulatory plant status applies for supply plants days from the date of publication in the impact of the order on certain milk will be removed. For the months of Federal Register. September 1996 through August 1997, handlers and tends to ensure that dairy List of Subjects in 7 CFR Part 1137 farmers will continue to have their milk the touch-base requirement will not priced under the order and thereby apply and the diversion allowance for Milk marketing orders. receive the benefits that accrue from cooperatives will be raised. For the reasons set forth in the such pricing. These provisions have been preamble 7 CFR Part 1137, are amended This order of suspension is issued suspended for several years to maintain as follows: pursuant to the provisions of the the pool status of producers who have Agricultural Marketing Agreement Act, historically supplied the fluid needs of PART 1137ÐMILK IN THE EASTERN as amended, and of the order regulating Eastern Colorado distributing plants. COLORADO MARKETING AREA the handling of milk in the Eastern The marketing conditions which 1. The authority citation for 7 CFR Colorado marketing area. justified the prior suspensions continue Part 1137 continues to read as follows: Notice of proposed rulemaking was to exist. published in the Federal Register on Mid-Am asserts that they have made Authority: 7 U.S.C. 601–674. September 6, 1996 (61 FR 46214), a commitment to supply the fluid milk § 1137.7 [Suspended in part] concerning a proposed suspension of requirements of distributing plants if the 2. In § 1137.7, paragraph (b), the certain provisions of the order. suspension request is granted. Without second sentence is amended by Interested persons were afforded the suspension action, to qualify certain suspending the words ‘‘plant which has opportunity to file written data, views of its milk for pooling, it would be qualified as a’’ and ‘‘of March through and arguments thereon. Two comments necessary for the cooperative to ship August’’ for the months of September 1, supporting and no comments opposing milk from distant farms to Denver-area 1996, through February 28, 1997. the suspension were received. bottling plants. The distant milk would After consideration of all relevant displace milk produced on nearby farms § 1137.12 [Suspended in part] material, including the proposal in the that would then have to be shipped 3. In § 1137.12, paragraph (a)(1), the notice, the comments received, and from the Denver area to manufacturing first sentence the words ‘‘from whom at other available information, it is hereby plants located in outlying areas. least three deliveries of milk are found and determined that the There are ample supplies of locally received during the month at a following provisions of the order do not produced milk that can be delivered distributing pool plant’’ are suspended tend to effectuate the declared policy of directly from farms to distributing from September 1, 1996, through August the Act: plants to meet the market’s fluid needs 31, 1997. 1. For the months of September 1, without requiring shipments from 4. In § 1137.12, paragraph (a)(1), in 1996, through February 28, 1997: In the supply plants. the second sentence the words ‘‘30 second sentence of § 1137.7(b), the This suspension is found to be percent in the months of March, April, words ‘‘plant which has qualified as a’’ necessary for the purpose of assuring May, June, July, and December and 20 and ‘‘of March through August’’; and that producers’ milk will not have to be percent in other months of’’, and the 2. For the months of September 1, moved in an uneconomic and inefficient word ‘‘distributing’’ are suspended from 1996, through August 31, 1997: In the manner to ensure that producers whose September 1, 1996, through August 31, first sentence of § 1137.12(a)(1), the milk has long been associated with the 1997. words ‘‘from whom at least three Eastern Colorado marketing area will Dated: October 17, 1996. deliveries of milk are received during continue to benefit from pooling and Terry Medley, the month at a distributing pool plant’’; pricing under the order. and in the second sentence, the words It is hereby found and determined Acting Assistant Secretary, Marketing and Regulatory Programs. ‘‘30 percent in the months of March, that thirty days’ notice of the effective April, May, June, July, and December date hereof is impractical, unnecessary [FR Doc. 96–27457 Filed 10–24–96; 8:45 am] and 20 percent in other months of’’, and and contrary to the public interest in BILLING CODE 3410±02±P the word ‘‘distributing’’. that: (a) The suspension is necessary to Food Safety and Inspection Service Statement of Consideration reflect current marketing conditions and This rule suspends certain portions of to assure orderly marketing conditions 9 CFR Parts 304, 308, 310, 320, 327, the pool plant and producer definitions in the marketing area, in that such rule 381, 416, and 417 of the Eastern Colorado order. The is necessary to permit the continued suspension will make it easier for pooling of the milk of dairy farmers who [Docket No. 93±016±9N] handlers to qualify milk for pooling have historically supplied the market Demonstration Projects for Small under the order. without the need for making costly and Plants The suspension was requested by inefficient movements of milk; Mid-America Dairymen, Inc. (Mid-Am), (b) This suspension does not require AGENCY: Food Safety and Inspection a cooperative association that has of persons affected substantial or Service, USDA. pooled milk of dairy farmers on the extensive preparation prior to the ACTION: Notice of meeting. Eastern Colorado order for several years. effective date; and Mid-Am requested the suspension to (c) Notice of proposed rulemaking SUMMARY: The Food Safety and prevent the uneconomic and inefficient was given interested parties and they Inspection Service (FSIS) is holding a Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55207 meeting, ‘‘Demonstration Projects for 9 CFR Parts 304, 308, 310, 320, 327, Done at Washington, DC, on: October 21, Small Plants.’’ This meeting will focus 381, 416, and 417 1996. on the problems and techniques of Michael R. Taylor, Hazard Analysis and Critical Control [Docket No. 93±016±8N] Acting Under Secretary for Food Safety. Point (HACCP) systems implementation [FR Doc. 96–27460 Filed 10–22–96; 2:37 pm] and operation in ‘‘small’’ and ‘‘very Federal/State Conference on Food BILLING CODE 3410±DM±P small’’ plants. Safety

DATES: The meeting will be held on AGENCY: Food Safety and Inspection October 31, 1996, from 8:30 a.m. until Service, USDA. NATIONAL CREDIT UNION 5:00 p.m. Registration will begin at 8:00 ADMINISTRATION ACTION: Notice of meeting. a.m. 12 CFR Part 791 ADDRESSES: The meeting will be held at SUMMARY: The Food Safety and the U.S. Department of Agriculture, Inspection Service (FSIS), in Rules of NCUA Board Procedure; 1400 Independence Avenue, SW, Back cooperation with the Food and Drug Promulgation of NCUA Rules and of the South Building Cafeteria (between Administration, will hold a conference, Regulations; Public Observation of the 2nd and 3rd Wings). ‘‘Federal/State Conference on Food NCUA Board Meetings Safety.’’ This conference will focus on FOR FURTHER INFORMATION CONTACT: To how FSIS and State agencies can AGENCY: National Credit Union register for the meeting, call (800) 485– effectively allocate resources at the Administration (NCUA). 4429, FAX (202) 501–7642, or E-mail Federal, State, and local levels of ACTION: Final rule. usdafsis/[email protected]. If governments to improve food safety. SUMMARY: This rule amends NCUA’s you require a sign language interpreter DATES: The conference will be held on or other special accommodations, current regulations on NCUA Board October 30, 1996, from 8:30 a.m. until procedure by providing that items will contact Ms. Shelia Johnson at (202) 501– 5:00 p.m. Registration will begin at 8:00 7138 by October 25, 1996. be placed on the Board agenda by a.m. determination of the Chairman or at the SUPPLEMENTARY INFORMATION: On July ADDRESSES: The conference will be held request of any two Board members. This 25, 1996, FSIS published a final rule, at the Doubletree Park Terrace Hotel, amendment more clearly defines the ‘‘Pathogen Reduction; Hazard Analysis 1515 Rhode Island Avenue, NW, authority of the Board members in and Critical Control Point (HACCP) Washington, DC 20250, (202) 232–7000. setting the agenda. Systems’’ (61 FR 38805). This rule FOR FURTHER INFORMATION CONTACT: To EFFECTIVE DATE: This amendment is introduced sweeping changes to the register for the conference, call (800) effective October 25, 1996. meat and poultry inspection system. In 485–4429, FAX (202) 501–7642, or E- FOR FURTHER INFORMATION CONTACT: the preamble of the rule, FSIS stated mail usdafsis/ Robert M. Fenner, General Counsel, that the Agency plans to conduct [email protected]. If you Office of the General Counsel, at the HACCP demonstration projects for require a sign language interpreter or above address or telephone (703) 518– ‘‘small’’ and ‘‘very small’’ other special accommodations, contact 6540. E-mail questions may be sent to establishments, as defined in the final Ms. Shelia Johnson at (202) 501–7138 by [email protected]. rule. October 25, 1996. SUPPLEMENTARY INFORMATION: NCUA’s To discuss the demonstration SUPPLEMENTARY INFORMATION: On July Rules of Board Procedure, 12 CFR part projects, FSIS will hold the meeting, 25, 1996, FSIS published a final rule, 791, govern the manner in which the ‘‘Demonstration Projects for Small ‘‘Pathogen Reduction; Hazard Analysis Board acts on behalf of NCUA; the Plants.’’ The purpose of the meeting is and Critical Control Point (HACCP) conduct, scheduling and subject matter to identify effective teaching and Systems’’ (61 FR 38805). This rule of Board meetings, the use of notation technical assistance approaches for introduced sweeping changes to the votes, and the recording of Board HACCP training, discuss examples of meat and poultry inspection system. In actions. Prior to this amendment, successful ‘‘small’’ and ‘‘very small’’ the preamble of the rule, FSIS addressed Section 791.6(a) vested final authority to plant hazard analyses and HACCP plan ‘‘Farm-to-Table’’ strategies which determine the agenda for a particular development, and identify materials, include preventive approaches to Board meeting with the Chairman. technical assistance, and organizations hazards that occur during, The NCUA Board has determined that that can assist small plants. transportation, distribution, and retail any two Board members shall have the Representatives from the Federal sale of meat and poultry products. To ability to have an item considered by Government, State governments, effect these strategies, close the Board within 60 days of a written academia, trade associations, and coordination between Federal and State request that includes an NCUA ‘‘B–1 ‘‘small’’ and ‘‘very small’’ plant owners/ governments is necessary. Form’’ and a Board Action operators have been invited to FSIS is holding the ‘‘Federal/State Memorandum. Accordingly, section participate. FSIS encourages ‘‘small’’ Conference on Food Safety’’ to discuss 791.6(a) is amended to provide that the and ‘‘very small’’ plant owners/ ‘‘Farm-to-Table’’ strategies. The Chairman determines the order of the operators to attend and present their conference will focus on issues related meeting agenda, and that items shall be views. to respective roles and responsibilities placed on the agenda either by Done at Washington, DC, on October 18, and coordination between the states and determination of the Chairman, or 1996. the Federal Government. within 60 days of the submission of Representatives from USDA, the Food such a request by any two Board Michael R. Taylor, and Drug Administration, the Center for members. At the same time, section Acting Under Secretary for Food Safety. Disease Control, and State food safety 791.6(b) is amended to clarify that [FR Doc. 96–27459 Filed 10–22–96; 2:37 pm] agencies have been invited to recommended agenda items may be BILLING CODE 3410±DM±P participate. submitted by Board members and Office 55208 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations

Directors; actual agenda items are § 791.6 Subject matter of a meeting. FOR FURTHER INFORMATION CONTACT: determined by the Chairman and Board. (a) Agenda. The Chairman is Michael Goldenberg, Office of the Immediate Effective Date responsible for the final order of each General Counsel, Federal Energy meeting agenda. Items shall be placed Regulatory Commission, 888 First Because this amendment concerns on the agenda by determination of the Street, NE, Washington, DC 20426, rules of NCUA Board procedure, prior Chairman, or within 60 days of receipt (202) 208–2294 notice and public comment are not of a written request from two Board Marvin Rosenberg, Office of Economic required by 5 U.S.C. 553, and the rule members that includes an NCUA B–1 Policy, Federal Energy Regulatory is effective upon publication in the form and a Board Action Memorandum. Commission, 888 First Street, N.E., Federal Register. (b) Submission of recommended Washington, DC 20426, (202) 208– Regulatory Procedures agenda items. Recommended agenda 1283 items may be submitted to the Secretary Kay Morice, Office of Pipeline Regulatory Flexibility Act of the Board by Board members, the Regulation, Federal Energy Regulatory Executive Staff (which includes all Pursuant to section 605(b) of the Commission, 888 First Street, N.E., Office Directors and President of the Regulatory Flexibility Act, the NCUA Washington, DC 20426, (202) 208– Central Liquidity Facility), and Regional hereby certifies that this rule will not 0507 Directors. have a significant economic impact on SUPPLEMENTARY INFORMATION: In a substantial number of small entities. [FR Doc. 96–27131 Filed 10–24–96; 8:45 am] addition to publishing the full text of Accordingly, a regulatory flexibility BILLING CODE 7535±01±P this document in the Federal Register, analysis is not required. This rule affects the Commission provides all interested internal NCUA Board operations only. persons an opportunity to inspect or Thus, it will not result in additional copy the contents of this document burden for regulated institutions. The DEPARTMENT OF ENERGY during normal business hours in Room purpose of this rule is to enhance the 2A, 888 First Street, N.E., Washington operations of the NCUA Board. Federal Energy Regulatory D.C. 20426. Commission The Commission Issuance Posting Paperwork Reduction Act System (CIPS), an electronic bulletin 18 CFR Part 284 The amendments do not contain any board service, provides access to the collection of information requirements. texts of formal documents issued by the [Docket No. RM96±1±001; Order No. 587± Commission. CIPS is available at no Executive Order 12612 A] charge to the user and may be accessed The rule, like the provision of part using a personal computer with a Standards for Business Practices of modem by dialing (202) 208–1397 if 791 it replaces, only applies to the Interstate Natural Gas Pipelines NCUA Board. Accordingly, the Board dialing locally or 1–800–856–3920 if has determined that the rule will not AGENCY: Federal Energy Regulatory dialing long distance. To access CIPS, have a substantial direct effect on the Commission, Energy. set your communications software to 19200, 14400, 12000, 9600, 7200, 4800, states, on the relationship between that ACTION: Final rule; Order denying 2400 or 1200bps, full duplex, no parity, national government and the states, or rehearing. on the distribution of power and 8 data bits, and 1 stop bit. The full text responsibilities among various levels of SUMMARY: The Federal Energy of this document will be available on government. Further, the rule will not Regulatory Commission is denying a CIPS in ASCII and WordPerfect 5.1 preempt provisions of state law or request for rehearing of its final rule format. The complete text on diskette in regulations. revising the Commission’s regulations to WordPerfect format may also be require interstate natural gas pipelines purchased from the Commission’s copy List of Subjects in 12 CFR Part 791 to follow standardized procedures for contractor, La Dorn Systems Corporation, also located in Room 2A, Administrative practice and critical business practices— 888 First Street, N.E., Washington D.C. procedure, Sunshine Act. nominations; allocations, balancing, and measurement; invoicing; and capacity 20426. By the National Credit Union The Commission’s bulletin board Administration Board on October 16, 1996. release—and standardized mechanisms for electronic communication between system also can be accessed through the Becky Baker, the pipelines and those with whom they FedWorld system directly by modem or Secretary of the Board. do business. (61 FR 39053 (July 26, through the Internet. To access the FedWorld system by modem: Accordingly, NCUA amends 12 CFR 1996)). The order reaffirms the • part 791 as follows: Commission’s determination to Dial (703) 321–3339 and logon to the FedWorld system. incorporate by reference into its • PART 791ÐRULES OF NCUA BOARD regulations standards promulgated by After logging on, type: /go FERC PROCEDURE; PROMULGATION OF the Gas Industry Standards Board. To access the FedWorld system, NCUA RULES AND REGULATIONS; through the Internet: DATES: The regulations were effective • PUBLIC OBSERVATION OF NCUA Telnet to: fedworld.gov August 26, 1996, and are to be • BOARD MEETINGS Select the option: [1] FedWorld implemented based on a staggered • Logon to the FedWorld system scheduling with pro forma tariff filings 1. The authority citation for Part 791 • Type: /go FERC in October through December, 1996 and continues to read as follows: or: corresponding implementation in April • Point your Web Browser to: http:// Authority: 12 U.S.C. 1766, 1789 and 5 through June, 1997. U.S.C. 552b. www.fedworld.gov ADDRESSES: Federal Energy Regulatory • Scroll down the page to select 2. Section 791.6 is revised to read as Commission, 888 First Street, N.E., FedWorld Telnet Site follows: Washington DC 20426. • Select the option: [1] FedWorld Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55209

• Logon to the FedWorld system failure to analyze NGC/Vastar/Conoco’s benefit of helping to produce more • Type: /go FERC alternative standards. NGC/Vastar considered and balanced standards. Before Commissioners: Elizabeth Anne reiterate their position that the NTT&AA In reviewing the comments, the Moler, Chair; Vicky A. Bailey, applies only to government agencies’ Commission was warranted in giving James J. Hoecker, William L. use of private consensus standards for greater deference to the consensus Massey, and Donald F. Santa, Jr. procurement, not for regulation of viewpoint than to the views of one or Issued October 21, 1996. monopoly service providers, like even several parties. Giving deference to On July 17, 1996, the Federal Energy pipelines. the consensus decision is consistent Regulatory Commission (Commission) Finally, NGC/Vastar maintain the with the NTT&AA. It also is warranted issued a final rule revising the Commission exceeded its authority in by the Commission’s consistent policy Commission’s regulations to require finding that pipeline tariff provisions goal of developing standards that satisfy interstate natural gas pipelines to follow inconsistent with the GISB standards the needs of the broadest possible base standardized procedures for critical are unjust and unreasonable under of industry participants.8 Deference is business transactions between the section 5 of the Natural Gas Act (NGA). due to consensus standards, first 1 pipelines and their customers. The They maintain the Commission should because the gas industry possesses final rule incorporated by reference not find unjust and unreasonable tariff specialized knowledge and expertise in standards promulgated by the Gas provisions the Commission specifically the areas of business practices and Industry Standards Board (GISB), a approved as part of settlement computer protocols. Second, when all is consensus standards organization negotiations. said and done, it is the industry that has comprised of members from all LNT challenges the Commission’s to operate businesses using these segments of the natural gas industry. On standards. The standards, therefore, August 16, 1996, Natural Gas incorporation by reference of the GISB standards. It avers incorporation by should be acceptable to as many Clearinghouse and Vastar Gas industry participants as possible. In Marketing, Inc. (NGC/Vastar), filing reference unreasonably requires LNT either to view the standards in short, adopting business practice jointly, and Louisiana-Nevada Transit standards that command a consensus of Company (LNT) filed for rehearing. For Washington, D.C., or to purchase the standards from GISB for a charge of the industry is the most likely method the reasons discussed below, the of providing the greatest overall benefit rehearing requests are denied. $2,000 for the four volumes, which it claims is excessive. to the industry as a whole. Moreover, as Rehearing Requests discussed in the final rule and below, Discussion NGC/Vastar principally contend the the Commission considered the Commission acted arbitrarily and The principal issues raised in the substantive changes put forward by capriciously in giving deference to the rehearing requests are whether the NGC/Conoco and others and found that GISB standards without offering a Commission adequately considered the modifying the standards to try and reasoned analysis of the GISB standards comments of NGC/Vastar and others on accommodate the concerns of the as compared with the alternative the notice of proposed rulemaking minority would be inconsistent with the proposals put forward by NGC/Vastar/ (NOPR),7 and whether the Commission goals to be achieved through Conoco.2 NGC/Vastar contend that the is justified in giving deference to the standardization. Commission’s failure to address each of GISB standards and incorporating them LNT’s concern is not over the NGC/Vastar/Conoco’s proposed by reference into the regulations. As to substance of the standards, but goes to standards ran afoul of the the first issue, the Commission reviewed the manner by which the Commission Administrative Procedure Act, because all the comments submitted and adopted the standards, and is addressed the Commission ‘‘failed to consider an determined that the GISB standards are below. important aspect of the problem’’ 3 and just and reasonable. Indeed, A. Deference to the GISB Standards Is ignored ‘‘important arguments or examination of NGC/Vastar/Conoco’s Warranted and Consistent With the evidence.’’ 4 comments reveals that they NTT&AA and OMB Circular A–119 NGC/Vastar further maintain that § 12 fundamentally disagree with only one of the National Technology Transfer and GISB standard. Their principal position In examining the standards proposed Advancement Act of 1995 (NTT&AA) 5 by GISB and the comments and 6 is that to attain maximum efficiency, and OMB Circular A–119, which some of the standards need alternative standards of NGC/Vastar/ require government agencies to use supplementation and additional Conoco and others, the Commission was private consensus standards, do not standards are required. Rather than warranted in giving greater weight to the justify the Commission’s reliance on the rejecting NGC/Vastar/Conoco’s consensus agreement. Section 12 of the GISB standards or the Commission’s proposed enhancements or additions, NTT&AA establishes governmental the Commission found that many of policy that federal agencies shall use 1 Standards for Business Practices Of Interstate technical standards that are developed Natural Gas Pipelines, Order No. 587, 61 FR 39053 their suggestions may indeed have merit (Jul. 26, 1996), III FERC Stats. & Regs. Regulations and deferred consideration of these or adopted by voluntary consensus Preambles ¶ 31,039 (Jul. 17, 1996). issues until GISB and the industry had standards bodies unless such use is 2 Conoco did not join in the request for rehearing. a further opportunity to consider them. ‘‘inconsistent with applicable law or 3 Citing American Horse Protection Assoc. v. Since the proposed GISB standards can otherwise impractical.’’ Although, as Yeutter, 917 F.2d 594, 598 (D.C. Cir. 1992). NGC/Vastar point out, Senator 4 Citing Natural Resources Defense Council, Inc. be implemented without resolving the v. U.S. Environmental Protection Agency, 822 F.2d deferred issues, providing additional Rockefeller, a sponsor of the bill, 104, 111 (D.C. Cir. 1987). opportunity for industry review causes 5 Pub L. No. 104–113, § 12(d), 110 Stat. 775 little or no harm and will have the 8 The Commission sought industry consensus (1996). when it began the standardization process by 6 ’’Federal Participation in the Development and setting up a technical conference to develop 7 Use of Voluntary Standards’’ (Oct. 20, 1993). The Standards For Business Practices Of Interstate standards for capacity release transactions. Circular can be obtained from the Internet at http:/ Natural Gas Pipelines, Notice of Proposed Standards For Electronic Bulletin Boards Required /www.whitehouse.gov/WH/EOP/OMB/html/ Rulemaking, 61 FR 19211 (May 1, 1996), IV FERC Under Part 284 of the Commission’s Regulations, circular.html. An earlier version is available at 47 Stats. & Regs. Proposed Regulations ¶ 32,517 (Apr. FR 49496 (Nov. 1, 1992). 24, 1996). Notice of Informal Conferences, Docket No. RM93– 4–000 (March 10, 1993). 55210 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations referred to government use of standards under which a monopoly service is for the standards that did not receive the for procurement purposes,9 nothing in provided. necessary votes. the final language of the Act limits its NGC/Vastar point to language in OMB B. Response to NGC/Vastar/Conoco’s applicability to procurement. Circular A–119 cautioning federal Comments Congressman Brown, a cosponsor of the agencies that private standards-setting is Act, in fact, specifically refers to the use vulnerable to abuse. They contend the While GISB’s standards are of standards for ‘‘procurement and evidence NGC/Vastar/Conoco put legitimately entitled to great weight, the regulatory purposes.’’ 10 In addition, § 12 forward in their comments shows that Commission did not, as NGC/Vastar/ of the NTT&AA was intended to codify the pipeline interests unfairly Conoco maintain, delegate to GISB the OMB Circular A–119, which did not dominated the task force meetings (the sole responsibility to develop these limit the policy of using private sector committees that developed and standards. The Commission has and is standards to procurement. submitted draft standards to the GISB still taking an active role in the process. Even if § 12 of the NTT&AA does not Executive Committee for final voting). It has identified the areas requiring strictly apply here, the Commission is Without repeating all the discussion standardization. And, as discussed warranted in giving significant weight to in the final rule, the Commission below, the Commission reviewed the the consensus standards. Not only does reviewed GISB’s standards-development GISB standards in light of NGC/Vastar/ the industry possess specialized process and found that GISB reasonably Conoco’s comments and those of other knowledge of business and electronic assured broad based approval of the participants and determined that the communication practices, but, since the standards by all segments of the gas standards provide a just and reasonable industry itself has to operate under industry. At the Executive Committee solution to the lack of standardization in the industry. these standards, the standards should level, the record shows that the voting With the exception of the requirement implement practices that are favored by generally exceeded GISB’s rigorous 13 for a nationwide nomination schedule, the broadest cross-section of industry consensus requirement; most of the NGC/Vastar/Conoco did not members. standards received virtually unanimous 14 fundamentally disagree with the GISB Indeed, well before the passage of § 12 support. The record also shows that standards passed. Rather, their principal of the NTT&AA, government agencies the Standards Committee did not merely concerns were that a few of the GISB relied on private sector standards for rubber stamp the recommendations standards, in their view, do not go far regulatory purposes, including from the drafting committee, as enough and need to be improved and 11 protection of public health and safety. suggested by NGC/Vastar. The Executive enhanced and that standards in Agencies rely on industry standards for Committee conducted preliminary additional areas need to be adopted. much the same reasons the Commission sessions prior to its public meeting to has chosen to give GISB’s standards debate and refine the standards. Its 1. NGC/Vastar/Conoco’s Objections to great weight. Industry possesses public meeting lasted for two full days, the GISB Standards specialized knowledge and expertise in going late into the night, with the NGC/Vastar/Conoco raised six the relevant technical areas, and the Committee making significant and specific concerns with the GISB procedural process of consensus fundamental changes to the task force standards in their comments on the standards development helps ensure recommendations. NOPR: uniform nomination deadline; that the process is open to all affected The Commission, however, is not pooling; tracking of title transfers; intra- interests and that the standards reflect a ignoring potential problems with day nominations; prior period consensus of these interests.12 There is consensus standard development, as adjustments; and unit of measure. 15 no reason to make a distinction between NGC/Vastar argue. For instance, under a. Uniform Nomination Deadline. the frequent use of standards by GISB’s procedures, a concerted effort by GISB established a uniform nomination agencies to protect the public health and a single interest can prevent the deadline for the entire country, starting safety and the Commission’s use of adoption of a standard supported by the at 11:30 a.m. CCT (central clock time). industry standards as part of its efforts rest of the industry. That is why the (Nomination Standard 1.3.2). NGC/ to regulate the terms and conditions Commission has been particularly Vastar/Conoco, as well as others, argued vigilant about examining those areas in a staggered nomination timeline would 9 142 Cong. Rec. S1080 (daily ed. Feb. 7, 1996). which GISB has failed to reach be more efficient. NGC/Vastar/Conoco 10 142 Cong. Rec. H1266 (daily ed. Feb. 27, 1996) consensus on standards. The suggested that upstream pipelines (emphasis added). Commission, in fact, agreed with NGC/ should go first while others suggested a 11 For just a few examples of the use of standards Vastar that, in many of these areas, regional nomination system. for non-procurement purposes, see 42 CFR As was the case with many of the 405.2150, 60 FR 48039 (Sept. 18, 1995) (Health Care standards appear necessary and Financing Administration incorporation of instituted procedures to have GISB and standards, the Commission found that Association for the Advancement of Medical the industry develop the needed the determination of an appropriate Instrumentation standards for reuse of nomination schedule was a matter of hemodialyzers); 49 CFR Part 659, 60 FR 67034 (Dec. standards. 27, 1995) (Federal Transit Administration The Commission established a judgment, not fact, and accepted the incorporation by reference of APTA rail transit September 30, 1996 date for submission system safety plans); 49 CFR 192.11, 193.2005 of detailed reports on the additional 15 NGC/Vastar/Conoco also raised concerns about (Department of Transportation incorporation by GISB’s adoption of internet protocols as the reference of practice standards relating to standards, and, on that date, GISB electronic method for communication of the high transportation of petroleum gas and LNG); 24 CFR submitted a report containing additional priority data elements. They argued that, while the 200.926b, part 200, App. A, 3280.801 (Housing and approved standards and a voting record use of internet protocols is a step forward, GISB did Urban Development minimum property standards not go far enough in using internet technology. This and manufactured housing standards); 16 CFR issue is not yet ripe for consideration. The Material Approved for Incorporation by Reference, 13 Under GISB rules, 17 out of 25 Executive Commission has not yet adopted the electronic at 483 (1996) (listing standards incorporated by Committee members must approve a standard with delivery mechanism standards, because GISB had Consumer Product Safety Commission); 21 CFR at least two affirmative votes from each of the five not completed the standards in time for the final 801.410 (FDA standards for impact-resistant eye industry segments. The five segments are pipelines, rule. The Commission, however, did agree with glasses). local distribution companies (LDCs), producers, some aspects of NGC/Vastar/Conoco’s comments 12 See 142 Cong. Rec. S1081 (daily ed. Feb. 7, end-users, and services (including marketers and regarding the need to eventually replace pipeline 1996) (remarks of Senator Rockefeller); 142 Cong. third-party computer service providers). electronic bulletin boards with a more uniform Rec. H1266 (daily ed. Feb. 27, 1996)(remarks of 14 See Volume III of GISB’s March 15, 1996 filing, method of communication. 61 FR 39057, 39065, III Congressman Brown). Voting Work papers. FERC Stats. & Regs. Preambles at 30,063, 30,076. Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55211 consensus rationale for adopting a transfers should bear the cost of the While permitting the industry to review nationwide schedule. The industry service (Nomination Principles 1.1.10 such revisions through the consensus consensus was that a nationwide and 1.1.11). But GISB failed, after much process may be somewhat slower than timeline provides shippers with more discussion, to reach agreement on a title NGC/Vastar/Conoco would prefer, such assurance of their transportation tracking standard.18 NGC/Vastar/Conoco review will lead to a better and more arrangements. A nationwide nomination request the Commission to eliminate the considered decision. schedule enables a shipper using two principles because the entire issue e. Prior Period Adjustments. GISB multiple pipelines to nominate and of title transfers has been deferred for adopted three standards dealing with schedule each link in its transaction further consideration. prior period adjustments (allocations, chain at one time. It also enables the Although the Commission adopted measurement, and invoices) that impose shipper to learn quickly whether its the principles, pipelines need not a six-month period for the adjustment nomination will go through as comply with them unless, and until and a three-month rebuttal period. scheduled. they are adopted as standards. NGC/ (Flowing Gas Standards 2.3.26 and A staggered schedule could leave a Vastar/Conoco, in fact, agree with the 2.3.14 and Invoicing Standard 3.3.15.) shipper with one (or more) scheduled general principle that title transfer NGC/Vastar/Conoco contend the six- pipeline and one (or more) tracking is important, and improves 16 19 month reconciliation period does not unscheduled. For example, under a certainty, and the Commission reflect commercial realities, because system where nominations on upstream concurred, including title transfer most pipelines are unable to provide pipelines are processed first, a shipper tracking as an issue for further adjustments that quickly, the may receive confirmation of consideration by GISB and the 20 adjustments therefore may be transportation on the upstream pipeline, industry. NGC/Vastar/Conoco have inaccurate, and the six-month period is without knowing whether it will be able suffered no harm from adoption of the inconsistent with companies’ internal to acquire transportation to deliver that two principles, since pipelines are not and external auditing procedures. They gas to its needed destination. required to revise their tariffs to comply recommend a two-year period for b. Pooling. GISB’s standard requires with them, and, in any event, they are adjustments. pipelines to offer one pool if requested subject to revision based on the future by a shipper or supplier. (Nomination deliberations. The consensus view of all segments of Standard 1.3.17). NGC/Vastar/Conoco d. Intra-day Nominations. GISB’s the industry, including the pipeline agree with the standard, but object to standards for intra-day nominations (a segment, is that expedition of these the requirement that pooling must be nomination made after the nomination adjustments is important and can be requested by a shipper or supplier. They deadline for a gas day) provide that made accurately within the six-month suggest pipelines may take a long time pipelines must allow shippers to submit time period specified. There is no to establish pooling mechanisms and, at least one intra-day nomination four factual basis, at this point, to determine therefore, argue the ‘‘shipper request’’ hours prior to gas flow and that intra- whether these adjustments can be made requirement could drag out day nominations can be used to request accurately. The question of how fast implementation for years. increases or decreases in total flow and reconciliation is needed and what Although pooling is either already changes to receipt or delivery points for reasonably can be accomplished is a provided, or is likely to be requested, on scheduled gas. (Nomination Standards matter of judgment, and the larger pipelines, pooling may not be 1.3.8, 1.3.10, and 1.3.11). NGC/Vastar/ Commission, therefore, chose to adopt needed or demanded on smaller Conoco maintain that these standards, the position supported by the majority pipelines. The ‘‘shipper request’’ while a ‘‘step in the right direction,’’ do of the industry.21 Given the importance requirement helps to ensure that not go far enough to ensure equitable of obtaining financial data promptly, the pipelines do not unnecessarily establish treatment of shippers. They propose six Commission is unwilling to accept pools that are not needed. The ‘‘shipper revised standards covering additional NGC/Vastar/Conoco’s assumption that request’’ requirement also should not areas such as bumping rights, for pipelines will fail to perform in the cause any delay in implementing example, between shippers submitting manner to which they have agreed. pooling. The standard requires nothing intra-day nominations to primary points Pipelines are subject to the risks of more than a request by a shipper or a and shippers using those points as alienating their own customer base as supplier to trigger the obligation for the secondary points. well as possible Commission action if pipeline to establish a pool. Since the The Commission accepted the GISB they fail to follow the standards. Indeed, tariff changes to comply with the standards as a reasonable point of NGC/Vastar/Conoco’s reluctance to hold standards are not due to start being filed departure. NGC/Vastar/Conoco do not the pipelines to the speed-up in until October of 1996, and maintain that the GISB standards should reconciliation, to which the pipelines implementation does not begin until not be implemented as written, only agreed, is at odds with the general thrust April of 1997, there is ample time for that their suggested additions may of NGC/Vastar/Conoco’s arguments, on shippers needing pooling to make their improve the efficiency of the market. other standards, that pipelines should requests, and for implementation to be The Commission agrees that be forced to do more, and do it faster, timely. improvements probably can be made in than the consensus agreement. c. Title Transfer Tracking. GISB this area as the standards are refined. f. Unit of Measure. GISB adopted adopted two principles dealing with dekatherms as the standard unit for title transfers 17—title transfer tracking 18 See Transcript of March 7, 1996 GISB Executive nominations. (Nomination Standard Committee Meeting, Docket No. RM96–1–000, at improves certainty and users of title 316–370 (filed March 27, 1996). 1.3.14.) It further adopted a standard 19 See Comments and Proposed Alternative providing that, subject to regulatory 16 61 FR 39061, III FERC Stats. & Regs. Preambles Standards of NGC/Vastar/Conoco, Docket No. and/or contractual considerations for at 30,067–68. RM96–1–000, at 67 (May 28, 1996) (‘‘title transfers standardizing billing units on invoices, 17 Title transfer tracking refers to keeping create liquidity in the market, which in turn computerized record of nominations showing the enhances reliability and competitiveness of natural dekatherms should be used for invoices transfer between parties of title to gas whether or gas as a fuel’’). not the gas is being physically transported on the 20 61 FR 19216; IV FERC Stats. & Regs. Proposed 21 61 FR 39062, III. FERC Stats. & Regs. Preambles pipeline. Regulations at 33,213. at 30,068–69. 55212 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations to be consistent with nomination reduce the costs of ironing out the inappropriate since the Commission has standard. (Invoicing Standard 3.3.3.) details in later filings, they did not specifically ordered or approved many NGC/Vastar/Conoco accepted the use suggest that implementation of the of these provisions, which were crafted of dekatherms for nominations, but additional standards is a prerequisite to as part of extensive settlement contended dekatherms should not be implementation of the GISB standards. processes. required for billing. They contended The Commission has determined to As the Commission pointed out in the that this standard ignores the try to obtain resolution of standards final rule, pipeline tariff provisions commercial reality that thousands of issues through the consensus process governing business practices initially contracts are based on Mcf and that and is not prepared to discard that were crafted in individual restructuring parties such as LDCs, intrastate process at this stage of the proceedings. proceedings pursuant to Order No. 636. pipelines, and gatherers may have state Particularly for complex issues, But experience under these tariffs rates based on Mcf and may not measure achievement of a consensus that fairly clearly showed the policy of relying on dekatherms. They recommended that balances the concerns of all industry individual, non-standardized tariff Mcf should be included as an optional segments is desirable. On its first try at filings was not sufficient to create the field. standardization, GISB and the industry uniform pipeline grid the Commission The GISB standard, on its face, is had to face and resolve a wide range of envisioned in Order No. 636. 25 Indeed, conditioned on the relevant contractual issues in a short timeframe. GISB before initiating this rulemaking, the relations between the parties, so that it conducted 45 meetings within a 53 day Commission held a technical conference will not result in trumping those period and reached consensus on a on September 21, 1995, to assess the agreements in the absence of significant number of critical issues. industry’s standardization progress.26 negotiations between the parties. Thus, The Commission is not willing to short- At that conference, all segments of the customers can still continue to receive circuit that process without giving the industry agreed that relying on invoices in Mcf if provided by their industry a chance to consider the individual pipeline procedures contract. The consensus standard, deferred issues. inhibited efficiency. One participant however, establishes parameters for Moreover, the Commission could not aptly summarized the problem: future and renegotiated contracts to have resolved these issues immediately Moving gas across multiple pipelines today provide consistency in the measurement based on the existing record. Since no is a logistical nightmare. Each pipeline wants and billing process, which is a party had an opportunity to respond to data specified in a different way. Delays are NGC/Vastar/Conoco’s comments, the standard operating procedure, errors are reasonable objective. routine, and the cost of this process is too Commission would have had to 2. Deferred Issues great for all of us. * * * Let me give you an establish additional procedures to example of the problem. Today, the 18 largest NGC/Vastar/Conoco’s primary resolve the issues in any event. The pipelines use 14 different nomenclatures to concern was with the standards that fall better path, therefore, is to proceed as describe a pipeline receipt point. About 80 under the heading of deferred issues: the Commission has done and provide unique data elements are required to execute the issues the Commission determined the industry with additional time to a nomination on these pipelines.27 required further consideration by GISB consider the issues. Even if the industry NGC/Vastar, themselves, recognize and the industry. NGC/Vastar/Conoco does not succeed at reaching consensus, that individual pipeline tariff contended the Commission should not the review by GISB and the industry procedures are not sufficient and that have deferred resolution of these issues, will cast additional light on the issues ‘‘standardization of pipeline business but should have resolved them involved in these complex areas, practices will go a long way to immediately based on NGC/Vastar/ enabling the Commission to reach a making the trading of natural gas in an Conoco’s proposed standards. NGC/ more reasoned resolution if it is integrated market more efficient, and Vastar/Conoco further contended the required to intervene in the process. should make gas service more 28 ‘‘reserved’’ issues are among the most The Commission, however, reliable.’’ complex facing the industry and, since recognized the need to monitor industry Through this rulemaking proceeding, GISB failed to resolve them the first progress on these standards to ensure the Commission sought to correct this time, its chances of resolving them on that a stalemate does not impede obstacle to efficiency by requiring a second try are a ‘‘false hope.’’ development of the standards. Thus, the standardization of pipeline business The Commission heeded the Commission rejected calls to extend the practices. Accordingly, tariff provisions comments of NGC/Vastar/Conoco, September 30, 1996 deadline to report that conflict with the Commission’s finding that ‘‘many of NGC/Vastar/ to the Commission on the industry’s standardization policy are, of necessity, Conoco’s points may have merit.’’ 22 progress on these issues.24 Analysis of unjust and unreasonable. Where the Commission differed with the reports filed on September 30 by D. Incorporation by Reference Is NGC/Vastar/Conoco was in the process GISB and others should reveal whether Appropriate the industry is en route to resolving for resolving these issues. While LNT does not object to the substance these issues or whether the Commission recognizing that the additional of the GISB standards, but to the should institute additional procedures. standards need prompt consideration, Commission’s incorporation of the the Commission concluded the GISB C. The Commission’s § 5 Action Is standards by reference into its standards could be implemented while Warranted regulations. LNT complains that by standards in the additional areas are being considered.23 Indeed, although NGC/Vastar take issue with the Commission’s finding that pipeline 25 61 FR 39056, III. FERC Stats. & Regs. Preambles NGC/Vastar/Conoco contended that at 30,059. implementation of their proposed tariff provisions inconsistent with the 26 Technical Conference, Standards For Electronic additional standards immediately may GISB standards are unjust and Bulletin Boards Required Under Part 284 of the unreasonable under § 5 of the NGA. Commission’s Regulations, Docket No. RM93–4– 000 (Sept. 21, 1995). 22 61 FR 39060, III FERC Stats. & Regs. Preambles They maintain that a § 5 finding is at 30,068. 27 Transcript of September 21, 1995 Technical 23 61 FR 19216, IV FERC Stats. & Regs. Proposed 24 61 FR 39066, III FERC Stats. & Regs. Preambles Conference, supra, note, at 44–45. Regulations at 33,213. at 30,076–79. 28 Request for Rehearing, August 16, 1996, at 1. Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55213 incorporating the standards by administrative, legal, and other costs of DEPARTMENT OF TRANSPORTATION reference, rather than reprinting the developing the standards.34 The GISB standards in the Code of Federal price of $2,000 covers the complete four National Highway Traffic Safety Regulations, the Commission has forced volume set of documents, running over Administration it to incur either the expense of 2,000 pages, including the provision Federal Highway Administration traveling to Washington, DC. to view the without charge for one year, of the standards at the Commission or the updates and revisions that are certain to 23 CFR Part 1210 Office of the Federal Register or the be forthcoming. Determining an [NHTSA Docket No. 96±007; Notice 2] $2,000 cost of purchasing the standards appropriate price for such standards is from GISB. LNT maintains the $2,000 not simply a matter of calculating the RIN 2127±AG20 cost is exorbitant and, therefore, argues direct costs of publishing the standards, Operation of Motor Vehicles by the standards are not reasonably but involves consideration of the available to the class of persons affected Intoxicated Minors administrative, legal, and other by the regulations, contrary to the developmental costs as well as the AGENCY: National Highway Traffic regulations promulgated by the Office of Safety Administration (NHTSA) and 29 anticipated number of purchasers. In the Federal Register. Federal Highway Administration As discussed earlier, section 12 of this case, this determination was made, not by an independent publishing firm, (FHWA), Department of Transportation NTT&AA establishes a government (DOT). policy under which agencies are to rely but by those who themselves have to ACTION: Final rule. upon, and adopt, private sector purchase the documents—the GISB standards whenever practicable and membership composed of firms, of SUMMARY: This final rule implements a appropriate. The Freedom of varying sizes, from all segments of the new program enacted by the National Information Act and implementing industry.35 The Commission has no Highway System Designation (NHS) Act regulations establish that the proper basis to disagree with their of 1995, which provides for the method of adopting such copyrighted determination of the price. Even for withholding of Federal-aid highway material is to incorporate it by reference small pipelines, like LNT, a regulatory funds from any State that does not enact into the agency’s regulations. 30 To be cost of $2,000, whether for legal fees or and enforce a ‘‘zero tolerance’’ law. This eligible for incorporation by reference, for acquiring standards, is within the final rule clarifies what States must do the document must be reasonably normal course of doing business. to avoid the withholding of funds. available to the class of persons affected Moreover, LNT can seek to include the DATES: The regulation contained in this by the publication. 31 Once adopted, a costs of compliance with the GISB final rule becomes effective on copy must be provided to the Office of standards in future rate proceedings. November 25, 1996. the Federal Register for viewing, and the FOR FURTHER INFORMATION CONTACT: In material must be available and readily The Commission orders: The requests for rehearing are denied. NHTSA: Ms. Marlene Markison, Office obtainable. Neither the statute nor the of State and Community Services, regulations require that the standards be By the Commission. NSC–01, telephone (202) 366–2121; or available at no cost. Indeed, standards Lois D. Cashell, Ms. Heidi L. Coleman, Office of Chief incorporated by reference are exempt Secretary. Counsel, NCC–30, telephone (202) from the requirement that the agency [FR Doc. 96–27432 Filed 10–24–96; 8:45 am] 366–1834. provide copies of documents according In FHWA: Ms. Mila Plosky, Office of BILLING CODE 6717±01±P to the agency’s fee schedule. 32 Highway Safety, HHS–20, telephone GISB, in fact, is not insisting on (202) 366–6902; or Mr. Raymond W. payment for the reproduction for Cuprill, HCC–20, telephone (202) regulatory purposes of the business 366–0834. practice standards and the associated SUPPLEMENTARY INFORMATION: The datasets (data dictionaries), so small National Highway System Designation companies or municipalities will have (NHS) Act of 1995, Pub. L. 104–59, was easy access to the standards for signed into law on November 28, 1995. purposes of reviewing and responding Section 320 of the Act established a new 33 to pipeline tariff filings. The only Section 161 of Title 23, United States material for which GISB has restricted Code (Section 161), which requires the reproduction is the complex and withholding of certain Federal-aid detailed ASC X12 mappings and other highway funds from States that do not computer protocols and examples. enact and enforce ‘‘zero tolerance’’ laws. It is common practice for standards As provided in Section 161, these ‘‘zero organizations to charge for copies of 34 See Why There Is a Charge for Standards and Standards Information, American National tolerance’’ laws must consider an their standards in order to defray the individual under the age of 21 who has publishing costs as well as some of the Standards Institute (explaining why charges need to be assessed for standards even if obtained a blood alcohol concentration of 0.02 electronically, with no publishing costs). The percent or greater while operating a 29 1 CFR 51.7(4). document is accessible at ANSI’s Internet site, motor vehicle in the State, to be driving 30 5 U.S.C. § 553(a)(1); 1 CFR 51.7(4). See 28 http://www.ansi.org/whylchrg.html. U.S.C. § 1498 (government liability for patent and while intoxicated or driving under the 35 copyright infringement). Other government agencies Although GISB members can receive the four influence of alcohol. similarly incorporate private standards by volume set at the member’s fee of $1,000, their Section 161 specifically provides that reference. See, e.g., note 11, supra. yearly membership dues of $2,000 help defray the the Secretary must withhold from 31 administrative, legal, and other costs of developing See 5 U.S.C. 553(a)(1); 1 CFR 51.7(4). apportionment a portion of Federal-aid 32 5 U.S.C. 553(a)(3). the standards. See Gas Industry Standards Board 33 Letter of September 12, 1996 from counsel for Standards Action Bulletin, September 17, 1996, at highway funds from any State that does GISB to the Secretary of the Commission (Docket 8. The Bulletin is accessible via GISB’s Internet site not enact and enforce a conforming No. RM96–1–000). at http://www.NeoSoft.com/∼gisb/gisb.htm. ‘‘zero tolerance’’ law. 55214 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations

In accordance with Section 161, if a with a BAC that exceeds the legal limit A concerned individual from the State State does not meet the statutory itself an offense for such persons. It will of Colorado challenged the adoption of requirements on October 1, 1998, five not be sufficient for the State law, for zero tolerance laws for persons under percent of its FY 1999 Federal-aid example, to provide that .02 percent the age of 21. The commenter asserted highway apportionment under 23 U.S.C. establishes prima facie evidence. that such laws would violate the 14th 104(b)(1), 104(b)(3) and 104(b)(5)(B) 4. Primary Enforcement amendment guaranteeing equal shall be withheld on that date. These The State must enact and enforce a protection for persons under the age of sections relate to the National Highway zero tolerance law that provides for 21 because they would ‘‘apply two System (NHS), the Surface primary enforcement. It will not be unequal standards to a previously Transportation Program (STP) and the sufficient for the State law to provide enacted law.’’ This commenter also Interstate System. that enforcement may be accomplished expressed the view that the ‘‘double If the State does not meet the statutory only as a secondary action to some other standard’’ that would be created by such requirements on October 1, 1999, ten violation or offense. zero tolerance laws will create percent of its FY 2000 apportionment Since Section 161 did not explicitly ‘‘continuing disrespect * * * among the will be withheld on that date. Ten prescribe the penalties that must be youth of this country for the law in percent will continue to be withheld on imposed on offenders who violate zero general.’’ October 1 of each subsequent fiscal year, tolerance laws, the agencies did not The agencies recognize that the if the State does not meet the propose to include a penalties criterion enactment by States of zero tolerance requirements on those dates. in the implementing regulation. laws and the imposition by the Federal government of sanctions on States that Notice of Proposed Rulemaking The agencies concluded in the NPRM that, while Congress intended to do not enact and enforce such laws may On March 7, 1996, NHTSA and the encourage all States to enact and enforce be controversial to some. However, Congress has directed the U.S. FHWA issued a joint notice of proposed effective zero tolerance laws, it also Department of Transportation to rulemaking (NPRM) proposing the intended to provide States with implement the Section 161 program, criteria States must meet to avoid the sufficient flexibility so they could under which the Secretary must impose withholding of apportionment of develop laws that suit the particular a sanction on any State that does not Federal-aid highway funds. The conditions that exist in those States. agencies explained in the NPRM that enact and enforce a conforming zero Section 161 provides that, to avoid the General Comments on NPRM tolerance law. Since the Section 161 program has been mandated by withholding, a State must enact and The agencies received 22 comments Congress, the agencies are required to enforce: in response to the NPRM. The a law that considers an individual under the implement this program. commenters included the National Moreover, the agencies believe this age of 21 who has a blood alcohol Association of Governors’ Highway concentration of 0.02 percent or greater while program has the potential to save a Safety Representatives (NAGHSR), 13 significant number of lives and prevent operating a motor vehicle in the State to be State agencies, Mothers Against Drunk driving while intoxicated or driving under many serious injuries. It has been the influence of alcohol. Drivers (the National Office, three State estimated that, since the enactment of Chapters and a memorandum the National Minimum Drinking Age The agencies proposed to require that documenting a meeting held with States must meet the following criteria Act in 1984, 8400 lives have been saved MADD representatives), Advocates for and over $1.8 billion in economic costs to avoid the withholding of Federal-aid Highway and Auto Safety, the National highway funds: to our society have been prevented Association of Beverage Retailers because of this law. As President 1. Under the Age of 21 (NABR) and a concerned individual. The State law must apply to all Clinton stated, in a letter in support of Several commenters objected to the persons under the age of 21. It will not the bill, to Senator Byrd, the bill’s proposed rule based on philosophical, be sufficient for the State law to apply, sponsor: legal or constitutional grounds. for example, only to persons under the Massachusetts objected to the use of [Zero tolerance] laws work—alcohol-related age of 18. crashes involving teenage drivers are down 2. Blood Alcohol Concentration of sanctions against States. It asserted that as much as 10–20 percent in those states [that 0.02 Percent the ‘‘Sanctions/withholding of funds have enacted such laws]. If all states had The State law must set 0.02 percent as [will have an adverse impact on] State such laws, hundreds more lives could be the legal limit for blood alcohol entities that are not involved in the saved and thousands of injuries could be concentration. States with laws that set purview of the intended remedy (e.g., prevented. a lower percentage (such as 0.00 zero tolerance impacting Federal-aid In addition, the agencies disagree that percent) as the legal limit would also construction funds).’’ zero tolerance laws will be vulnerable to conform to the Federal requirement. It The National Association of Beverage legal or constitutional challenge. Nearly will not be sufficient for the State law Retailers (NABR) opposed the ‘‘arbitrary two-thirds of the States in the nation to establish, for example, .04 or .07 lowering of the legal BAC, for any age have already enacted zero tolerance percent as the legal limit. category.’’ The NABR asserted that the laws, and these laws have consistently 3. Per Se Law government ‘‘should program its held up to challenges on constitutional The State law must consider precious resources in areas that will and other legal grounds. individuals under the age of 21 whose achieve the greatest results per dollar blood alcohol concentration exceeds the spent * * * [such as] education, Comments Concerning the Compliance legal limit while operating a motor information * * * and consistent and Criteria vehicle in the State to be driving while fair law enforcement. * * *’’ The remaining comments addressed intoxicated or driving under the The State of Oklahoma expressed the proposed compliance criteria. As influence of alcohol. concern that the Federal requirement stated above, the proposed criteria In other words, the State must would pose ‘‘serious legal dilemmas’’ provided that conforming zero tolerance establish a ‘‘per se’’ law for persons for States that ‘‘already have a per se laws must: (1) apply to all persons under the age of 21, that makes driving law applicable to all drivers.’’ under the age of 21; (2) set 0.02 percent Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55215 as the legal limit for blood alcohol provisional or conditional licenses one-year license suspension on all concentration; (3) establish .02 as a ‘‘per during the suspension period. Both repeat offenders to qualify for incentive se’’ offense; and (4) provide for primary organizations asserted that the grant funds based on one of its criteria enforcement. The NPRM did not legislative history supports the (expedited driver’s license suspension include a penalties criterion. None of inclusion of a penalties criterion. or revocation system). the comments received by the agencies The agencies agree that licensing Neither the statutory language opposed criteria #1–3. These criteria sanctions are effective. NHTSA is aware contained in Section 161 nor any of the will continue to be included in the of studies that have shown their legislative history concerning the regulation. effectiveness in deterring drinking and section provide for or otherwise make Three respondents commented on driving among the general population. reference to the inclusion of a criterion #4. MADD supported the ‘‘Changes in Alcohol-Involved Fatal mandatory licensing sanction. In a primary enforcement requirement. Crashes Associated With Tougher State program such as this one, which Although its zero tolerance law Alcohol Legislation,’’ DOT HS 807511, provides that States that fail to comply currently contains a secondary July 1989. Other studies suggest that are sanctioned (as opposed to a program enforcement provision, the State of such sanctions would be at least as such as Section 410, which provides Nebraska did not take issue with effective against persons who are less simply that States that fail to comply do criterion #4. In fact, the State predicted than 21 years of age. ‘‘Lower Legal not receive incentive grants), the that its secondary enforcement Blood Alcohol Limits for Younger agencies consider the absence of an provision ‘‘will be corrected * ** Drivers,’’ Hingson, et al., Public Health explicit statutory mandate to be an because it will be recognized by state Reports, 1994. The agencies also agree important factor in determining whether policy makers as an appropriate and that ‘‘zero tolerance’’ laws that do not Congress intended for mandatory effective change.’’ The State of Illinois contain licensing sanctions would be far licensing sanctions to be required. expressed concern that its law would be less effective than laws that present Moreover, the legislative history in considered nonconforming under young people with the risk of losing both the Senate and the House of # criterion 4. The agencies have found, their driver’s license. Representatives contains various however, that Illinois’ law qualifies Moreover, the agencies strongly favor statements that lead to the conclusion under the primary enforcement mandatory licensing sanctions. In fact, that the legislation was not intended to criterion. This criterion has been NHTSA’s Section 410 drunk driving require a mandatory licensing sanction. adopted without change. incentive grant program has required, Senator Byrd stated in June 1995 that As noted above, since Section 161 did since its inception, that States include 24 States and the District of Columbia not explicitly prescribe the penalties mandatory 30-day hard licensing ‘‘have already enacted the zero- that must be imposed on offenders who sanctions in their ‘‘0.02 BAC per se’’ tolerance law which is called for in [the] violate zero tolerance laws, the agencies laws to qualify for grant funds. In a final amendment.’’ Senator Lautenberg, did not propose to include a penalties rule, published separately in today’s Congresswoman Morella and President criterion in the implementing Federal Register, NHTSA announces Clinton cited the same number of regulation. that the Section 410 program will States.1 Most of the commenters, including continue to require these sanctions. If the agencies were to require a NAGHSR and eleven States, agreed with After a careful and studied review of mandatory 30-day hard license that portion of the agencies’ proposal. both the statute and the legislative suspension, six of the 24 States that had Advocates and MADD (both the history, the agencies have decided to already enacted zero tolerance laws at National Office and the three State establish an additional criterion the time these statements were being Chapters) recommended instead that the requiring appropriate penalties. made in Congress would fail to comply agency expand the criteria to include a Specifically, in view of Congress’ intent on the basis of that requirement. If the penalties criterion. Advocates that States enact effective laws that agencies were to require a mandatory recommended that the zero tolerance contain appropriate sanctions, the 30-day license suspension, but permit criteria should require that States agencies believe it is appropriate to hardship or restricted licenses, three of impose a mandatory 30-day licensing require that States authorize the use of those States would fail to comply. sanction for any violation. It asserted driver licensing suspensions or In addition, some of the States that the adoption of this requirement revocations as sanctions for any specifically mentioned in the legislative would ‘‘ensure that [the] new [zero violation of a State zero tolerance law. history as examples that other States tolerance] program can be implemented However, the agencies conclude that the should follow, would fail to comply. For right from the start in a manner that statute does not permit the inclusion of example, Senator Byrd stated: maximizes its safety benefits to the a mandatory license sanction nation.’’ requirement for this new ‘‘zero In * * * North Carolina * * * which [has] Each of the MADD commenters tolerance’’ program. adopted zero tolerance laws, lower blood recommended that the criteria should Congress has required mandatory alcohol limits for minors resulted in a 34 provide for ‘‘licensing sanctions.’’ They licensing sanctions in some of the percent decline in nighttime fatal crashes programs it has established in recent among younger drivers. * * * A 1992 did not specify, however, a minimum Federal study in Maryland found that car length of suspension or provide other years. Section 159 of Title 23, United accidents involving drivers under the age of details concerning the nature of the States Code, for example, specifies that 21 who had been drinking, declined eleven sanctions. MADD’s National Office States must impose a six month license percent after the zero-tolerance law was stated that licensing sanctions are ‘‘the suspension against all persons who are adopted. Further, there was a 50 percent drop most effective means of deterring convicted of drug offenses (or conform in accidents in areas where the penalties drinking and driving by those under the to section 159 through other means) to were promoted with a publicity campaign. age of 21.’’ avoid a withholding of Federal-aid Neither Advocates nor MADD construction funds. Section 410 of Title 1 A statement from Advocates for Highway and Auto Safety was included in the record, which specifically addressed whether 23, United States Code specifies that indicated that, as of April 1994, 26 States and the sanctions should be ‘‘hard,’’ i.e. States must impose a 90-day license District of Columbia had zero tolerance (.00, .01 or prohibiting the availability of restricted, suspension on all first offenders and a .02) laws. 55216 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations

Senator Lautenberg, Congresswomen a reasonable minimum period of time. On March 7, 1996, NHTSA published Lowey and Morella, and Advocates for Since the introduction of the zero an interim final rule in the Federal Highway and Auto Safety also cited tolerance legislation in Congress, 13 Register, amending Part 1313 to reflect Maryland and/or North Carolina as States have enacted zero tolerance laws. changes that were made to 23 U.S.C. 410 examples to follow in their statements Even though the agencies’ zero tolerance by the NHS Act, and requesting in the record. NPRM did not propose to include any comments on these changes. In the If the agencies were to require a licensing sanction requirement, each of interim final rule, NHTSA recognized mandatory 30-day hard license these 13 laws included provisions that that one of the grant criteria under the suspension, neither of these two States authorize the use of licensing sanctions section 410 program, which requires would comply. Instead, they would be for all zero tolerance offenders. that States ‘‘deem persons under age 21 subject to a withholding of funds. Even Moreover, 10 of these States enacted who operate a motor vehicle with a BAC if States were allowed to issue hardship laws that provide for a mandatory 30- of 0.02 or greater to be driving while or restricted licenses during the day hard license suspension or intoxicated,’’ is similar to the new ‘‘zero suspension period, one of these States revocation. These States concluded that tolerance’’ sanction requirement would still fail to comply. The agencies a mandatory 30-day hard licensing contained in Section 320 of the NHS Act do not believe this is the result that was sanction was the appropriate (23 U.S.C. Section 161). The interim intended by Congress. punishment for zero tolerance offenders final rule requested comments regarding Congress did intend, however, that and would ensure that their laws will be whether additional changes should be States would be required to enact most effective. The agencies urge the made to the section 410 ‘‘0.02’’ grant effective laws that contain appropriate remaining States to consider carefully criterion, as a result of the new ‘‘zero sanctions. Senator Byrd stated, when he the seriousness of the drunk driving tolerance’’ sanction program. introduced the legislation in the Senate: problem among young people and the The final rule, published separately in tragic loss of young lives that results, as This amendment sets the right example, and today’s Federal Register, announces tells our Nation’s youth that drinking and they develop their legislation. In that NHTSA will make no changes to driving is wrong; that it is a violation of law; particular, these States are urged to the section 410 ‘‘0.02’’ grant criterion. and that it will be appropriately punished follow the lead set by the ten States This grant criterion will continue to according to the laws of each State. mentioned above and to enact the most require that States provide for a [emphasis added] effective law possible. mandatory 30-day hard suspension. In addition, States are reminded that, The agencies note that every State that Regulatory Analyses and Notices has enacted a ‘‘zero tolerance’’ law to if they enact zero tolerance laws that date has included license suspensions require a mandatory 30-day hard license Executive Order 12778 (Civil Justice among their sanctions for a violation. In suspension, they may become eligible Reform) for Section 410 incentive grant funds. most of these States, licensing sanctions This final rule will not have any are mandatory. In other States, they are Other Proposed Provisions preemptive or retroactive effect. The authorized but are not mandatory (i.e., The agencies also proposed in the enabling legislation does not establish a they may be imposed at the discretion NPRM to include provisions in the procedure for judicial review of final of the court). There are no States in regulation governing the submission of rules promulgated under its provisions. which fines are the only sanctions certifications to demonstrate State There is no requirement that individuals available. compliance, notifications from the submit a petition for reconsideration or Accordingly, the agencies will add a agencies regarding State compliance or other administrative proceedings before fifth criterion. This criterion will not noncompliance, and the period of they may file suit in court. require mandatory licensing sanctions, availability of funds that are withheld. Executive Order 12866 (Regulatory but will require that the State’s law The NPRM proposed to include these authorizes the use of driver licensing Planning and Review) and DOT provisions in sections 1210.5 through Regulatory Policies and Procedures suspensions or revocations as sanctions 1210.10 of the regulation. A more for any violation of the State zero detailed discussion of these proposed The agencies have determined that tolerance law. The agencies conclude sections can be found in the preamble this action is not a significant regulatory this is consistent with Congress’ intent to the NPRM. 61 FR 9122. action within the meaning of Executive to recognize the accomplishments of the Washington State requested the Order 12866 or significant within the States that had already enacted zero opportunity to submit its certification meaning of Department of tolerance laws, and to encourage other for review by July 1, 1996, and receive Transportation Regulatory Policies and States to enact effective zero tolerance a determination prior to November 1, Procedures. States can choose to enact laws that contain appropriate sanctions. 1996. The agencies would be pleased to and enforce a zero tolerance law, in Based on a review of current zero review a certification from any State in conformance with Public Law 104–59, tolerance laws, the agencies are aware of advance of the deadlines established in and thereby avoid the withholding of only one State law that will fail to the regulation. Federal-aid highway funds. While comply with this new criterion. That The agencies received no other specific criteria that State laws must law does not authorize the use of driver comments concerning these sections of meet have been established in this final licensing sanctions on first offenders the proposed rule. They are being rule, they are mandated by Public Law who are between the ages of 18 and 21. adopted without change. 104–59. Accordingly, a full regulatory While this regulation requires only evaluation is not required. that States authorize the use of driver Separate Final Rule in Today’s Federal licensing sanctions and does not Register Regulatory Flexibility Act establish a minimum length of In today’s Federal Register, NHTSA In compliance with the Regulatory suspension, the agencies strongly has also published a separate final rule, Flexibility Act (Pub. L. 96–354, 5 U.S.C. encourage the States to enact zero relating to Part 1313, the agency’s 601–612), the agencies have evaluated tolerance laws that in fact impose regulation that implements its Section the effects of this action on small mandatory hard licensing sanctions for 410 program. entities. Based on the evaluation, we Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55217 certify that this action will not have a 1210.4 Adoption of zero tolerance law. (3) Make operating a motor vehicle by significant impact on a substantial 1210.5 Certification requirements. an individual under age 21 above the number of small entities. Accordingly, 1210.6 Period of availability of withheld legal limit a per se offense; the preparation of a Regulatory funds. (4) Provide for primary enforcement; 1210.7 Apportionment of withheld funds and Flexibility Analysis is unnecessary. after compliance. (5) Provide that license suspensions Paperwork Reduction Act 1210.8 Period of availability of subsequently apportioned funds. or revocations are authorized for any The requirements in this final rule 1210.9 Effect of noncompliance. violation of the State zero tolerance law. that States certify that they conform to 1210.10 Procedures affecting states in § 1210.5 Certification requirements. the statutory requirements to avoid the noncompliance. withholding of Federal-aid highway Authority: 23 U.S.C. 161; delegation of (a) Until a State has been determined funds are considered to be information authority at 49 CFR 1.48 and 1.50. to be in compliance with the collection requirements as that term is requirements of 23 U.S.C. 161, to avoid defined by the Office of Management § 1210.1 Scope. the withholding of funds in any fiscal and Budget (OMB) in 5 CFR Part 1320. This part prescribes the requirements year, beginning with FY 1999, the State The reporting and recordkeeping necessary to implement 23 U.S.C. 161, shall certify to the Secretary of requirement associated with this rule is which encourages States to enact and Transportation, before the last day of the subject to approval by the Office of enforce zero tolerance laws. previous fiscal year, that it meets the Management and Budget in accordance requirements of 23 U.S.C. 161, and this § 1210.2 Purpose. with 44 U.S.C. Chapter 35. These part. reporting requirements will occur only The purpose of this part is to specify (b) The certification shall contain: once for each State and will record only the steps that States must take to avoid (1) A copy of the State zero tolerance if the State’s law changes. the withholding of Federal-aid highway law, regulation, or binding policy Accordingly, these requirements have funds for noncompliance with 23 U.S.C. directive implementing or interpreting been submitted to and approved by 161. such law or regulation, that conforms to 23 U.S.C. 161 and § 1210.4(c); and OMB, pursuant to the Paperwork § 1210.3 Definitions. Reduction Act (44 U.S.C. 3501, et seq.). (2) A statement by an appropriate These requirements have been approved As used in this part: State official, that the State has enacted until September 30, 1999, under OMB (a) Alcohol concentration means and is enforcing a conforming zero No. 2127–0582. either grams of alcohol per 100 tolerance law. The certifying statement milliliters of blood or grams of alcohol shall be worded as follows: National Environmental Policy Act per 210 liters of breath. I, (Name of certifying official), (position title), The agencies have analyzed this (b) BAC means either blood or breath of the (State or Commonwealth) of llll, action for the purpose of the National alcohol concentration. do hereby certify that the (State or Environmental Policy Act of 1969 (42 (c) Operating a motor vehicle means Commonwealth) of llll, has enacted and U.S.C. 4321 et seq.) and have driving or being in actual physical is enforcing a zero tolerance law that determined that it will not have any control of a motor vehicle. conforms to the requirements of 23 U.S.C. 161 and 23 CFR 1210.4(c). significant impact on the quality of the § 1210.4 Adoption of zero tolerance law. human environment. (c) An original and four copies of the (a) The Secretary shall withhold five certification shall be submitted to the Executive Order 12612 (Federalism percent of the amount required to be Assessment) appropriate NHTSA Regional apportioned to any State under each of Administrator. Each Regional This action has been analyzed in sections 104(b)(1), 104(b)(3) and Administrator will forward the accordance with the principles and 104(b)(5) of title 23, United States Code, certifications he or she receives to criteria contained in Executive Order on the first day of fiscal year 1999 if the appropriate NHTSA and FHWA offices. 12612, and it has been determined that State does not meet the requirements of (d) Once a State has been determined this action does not have sufficient this part on that date. to be in compliance with the federalism implications to warrant the (b) The Secretary shall withhold ten requirements of 23 U.S.C. 161, it is not preparation of a federalism assessment. percent of the amount required to be required to submit additional Accordingly, the preparation of a apportioned to any State under each of certifications, except that the State shall Federalism Assessment is not sections 104(b)(1), 104(b)(3) and promptly submit an amendment or warranted. 104(b)(5) of title 23, United States Code, supplement to its certification provided on the first day of fiscal year 2000 and List of Subjects in 23 CFR Part 1210 under paragraphs (a) and (b) of this any subsequent fiscal year if the State section if the State’s zero tolerance Alcohol and abuse, Grant programs— does not meet the requirements of this legislation changes. transportation, Highway safety, part on that date. Reporting and recordkeeping (c) A State meets the requirements of § 1210.6 Period of availability of withheld requirements, Youth. this section if the State has enacted and funds. In accordance with the foregoing, a is enforcing a law that considers an (a) Funds withheld under § 1210.4 new Part 1210 is added to Title 23 of the individual under the age of 21 who has from apportionment to any State on or Code of Federal Regulations to read as a BAC of 0.02 percent or greater while before September 30, 2000, will remain follows: operating a motor vehicle in the State to available for apportionment until the be driving while intoxicated or driving end of the third fiscal year following the PART 1210ÐOPERATION OF MOTOR under the influence of alcohol. The law fiscal year for which the funds are VEHICLES BY INTOXICATED MINORS must: authorized to be appropriated. Sec. (1) Apply to all individuals under the (b) Funds withheld under § 1210.4 1210.1 Scope. age of 21; from apportionment to any State after 1210.2 Purpose. (2) Set a BAC of not higher than 0.02 September 30, 2000 will not be available 1210.3 Definitions. percent as the legal limit; for apportionment to the State. 55218 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations

§ 1210.7 Apportionment of withheld funds Issued on: October 21, 1996. rule to implement these changes and after compliance. Rodney E. Slater, requested comments from the public. Funds withheld from a State from Administrator, Federal Highway The changes affected two of the section apportionment under § 1210.4, which Administration. 410 incentive grant criteria: the remain available for apportionment Ricardo Martinez, statewide program for stopping motor vehicles and the 0.02 blood alcohol under § 1210.6(a), will be made Administrator, National Highway Traffic Safety Administration. concentration (BAC) per se law for available to the State if it conforms to persons under age 21. the requirements of §§ 1210.4 and [FR Doc. 96–27313 Filed 10–22–96; 12:30 pm] 1210.5 before the last day of the period General Comments on Interim Final BILLING CODE 4910±59±P of availability as defined in § 1210.6(a). Rule The agency received eleven comments § 1210.8 Period of availability of National Highway Traffic Safety subsequently apportioned funds. in response to the interim final rule. Administration Comments were received from the Funds apportioned pursuant to National Association of Governors’ 23 CFR Part 1313 § 1210.7 will remain available for Highway Safety Representatives expenditure until the end of the third [Docket No. 89±02; Notice 9] (NAGHSR), Advocates for Highway and fiscal year following the fiscal year in RIN 2127±AD01 Auto Safety (Advocates), the National which the funds are apportioned. Transportation Safety Board (NTSB), Incentive Grant Criteria for Drunk and eight State agencies. The comments, § 1210.9 Effect of noncompliance. Driving Prevention Programs and the agency’s responses to them, are If a State has not met the requirements discussed in detail below. (The agency AGENCY: National Highway Traffic also received some comments to Docket of 23 U.S.C. 161 and this part at the end Safety Administration (NHTSA), of the period for which funds withheld No. 96–007, Notice 1, concerning a Department of Transportation. notice of proposed rulemaking on a new under § 1210.4 are available for ACTION: Final rule. zero tolerance program, which related to apportionment to a State under § 1210.6, the interim final rule. These comments then such funds shall lapse. SUMMARY: This final rule announces that the changes that were made in an have also been considered by the § 1210.10 Procedures affecting states in interim final rule to the agency’s agency.) noncompliance. regulations to implement the agency’s Statewide Program for Stopping Motor (a) Each fiscal year, each State drunk driving prevention incentive Vehicles determined to be in noncompliance grant program, under 23 U.S.C. 410, will Before its amendment by the NHS with 23 U.S.C. 161 and this part, based remain in effect. In addition, this final Act, Section 410 contained a basic grant on NHTSA’s and FHWA’s preliminary rule amends the regulation by criterion requiring that States must simplifying the application process for review of its law, will be advised of the provide for ‘‘a statewide program for subsequent year Section 410 grants. funds expected to be withheld under stopping motor vehicles.’’ To qualify for DATES: § 1210.4 from apportionment, as part of This final rule becomes effective a basic grant under this criterion, States October 25, 1996. the advance notice of apportionments were required to provide: FOR FURTHER INFORMATION CONTACT: Ms. required under 23 U.S.C. 104(e), A statewide program for stopping motor Marlene Markison, Chief, Program normally not later than ninety days vehicles on a nondiscriminatory, lawful basis Support Staff, NSC–10, National prior to final apportionment. for the purpose of determining whether or Highway Traffic Safety Administration, not the operators of such motor vehicles are (b) If NHTSA and FHWA determine 400 Seventh Street S.W., Washington, driving while under the influence of alcohol. that the State is not in compliance with DC 20590; telephone (202) 366–2121 or On June 30, 1992, NHTSA issued an 23 U.S.C. 161 and this part, based on the Ms. Heidi L. Coleman, Assistant Chief interim final rule to implement this agencies’ preliminary review, the State Counsel for General Law, Office of Chief provision. The preamble to the interim may, within 30 days of its receipt of the Counsel, NCC–30, National Highway final rule stated: advance notice of apportionments, Traffic Safety Administration, 400 submit documentation showing why it Seventh Street, S.W., Washington, DC NHTSA is aware * * * that the courts in 20590, telephone (202) 366–1834. some States have declared the use of is in compliance. Documentation shall checkpoints or roadblocks to be be submitted to the National Highway SUPPLEMENTARY INFORMATION: Section unconstitutional under their State Traffic Safety Administration, 400 410, title 23, United States Code, as constitution [ and has, therefore, * * *] Seventh Street, SW, Washington, D.C. amended, established an incentive grant attempted in this final rule to provide some 20590. program under which States may flexibility to enable these States to describe qualify for basic and supplemental grant other Statewide programs for stopping motor (c) Each fiscal year, each State funds for adopting and implementing vehicles, using alternative methods * ** determined not to be in compliance comprehensive drunk driving The agency[, however,] expects most States with 23 U.S.C. 161 and this part, based prevention programs that meet specified will meet this criterion by describing their on NHTSA’s and FHWA’s final plans for conducting a Statewide checkpoint statutory criteria. or roadblock program. determination, will receive notice of the On November 28, 1995, the National funds being withheld under § 1210.4 Highway System Designation Act of Section 324(b)(1) of the NHS Act from apportionment, as part of the 1995 (NHS Act) was enacted into law. amended Section 410 by providing an certification of apportionments required Section 324 of the NHS Act contained alternative method of demonstrating under 23 U.S.C. 104(e), which normally amendments to 23 U.S.C. 410. compliance with this Section 410 basic occurs on October 1 of each fiscal year. grant criterion, for those States in which Interim Final Rule checkpoints or roadblocks have been On March 7, 1996, NHTSA published declared to be unconstitutional. Section in the Federal Register an interim final 324(b)(1) provides: Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55219

A State shall be treated as having met the obtainable.’’ California urged NHTSA to Stopping Motor Vehicles criterion will requirement of this paragraph if— finalize the change. remain in effect. No additional changes (i) the State provides to the Secretary a NAGHSR urged NHTSA to determine to that portion of the regulation will be written certification that the highest court of compliance with this criterion by made at this time. the State has issued a decision indicating that comparing ‘‘fatality rates’’ rather than implementation of subparagraph (A) would 0.02 BAC Per Se Law for Persons Under ‘‘absolute numbers of fatalities.’’ The constitute a violation of the constitution of Age 21 the State; and agency would like to clarify that the (ii) the State demonstrates to the interim final rule did provide that Prior to the enactment of the NHS satisfaction of the Secretary that— compliance would be determined based Act, Section 410 provided that, to (I) the alcohol fatal crash involvement rate on fatality rates. The interim final rule qualify for basic grant funds, a State was in the State has decreased in each of the 3 states that: required to meet five out of six basic most recent calendar years for which grant criteria.1 If a State qualified for a statistics for determining such rate are A State shall be treated as having met the basic grant, it could also seek to qualify available; and requirement of this paragraph if * ** NHTSA determines, based on data contained for funds under one or more of seven (II) the alcohol fatal crash involvement rate supplemental grants. To qualify under in the State has been lower than the average in the Fatal Accident Reporting System (FARS) and using NHTSA’s method for the first of these seven supplemental such rate for all States in each of such grants, a State was required to provide calendar years. estimating alcohol involvement, that the alcohol involvement rate in fatal crashes in that any person under age 21 with a As a result of the changes made by the the State: BAC of 0.02 percent or greater when agency’s interim final rule, dated March (A) has decreased in each of the 3 most driving a motor vehicle shall be deemed 7, 1996, States were permitted to recent calendar years for which statistics for to be driving while intoxicated. demonstrate compliance with this determining such rate are available; and Section 324(b)(2) of the NHS Act (B) the alcohol involvement rate in fatal criterion by submitting a certification to amended Section 410 by converting this crashes in the State has been lower than the ‘‘0.02 BAC’’ requirement from a the agency. The certification must average such rate for all States in each of provide that the highest court of the such calendar years. [emphasis added] supplemental to a basic grant criterion. State has issued a decision, indicating Accordingly, as a result of the changes that a Statewide program for the The agency would like to clarify how made by the agency’s interim final rule stopping of motor vehicles on a it will calculate the alcohol involvement dated March 7, 1996, the ‘‘0.02 BAC’’ nondiscriminatory, lawful basis for the rate. The rate will be derived by requirement remained the same. purpose of determining whether or not calculating the percentage of total traffic However, it was removed from the list the operators of such motor vehicles are fatalities in the State in which a driver, of supplemental grants (reducing the driving while under the influence of pedestrian or bicyclist had a positive number of such grants from seven to alcohol, would constitute a violation of BAC (or are estimated to have had a six), and added to the list of basic grant the State’s Constitution. The State must positive BAC) out of the total traffic criteria under Section 410 (increasing also provide a copy of the court’s fatalities in the State, based on Fatal the total of basic grant criteria from six decision. Accident Reporting System data. For to seven). example, if a State had 200 traffic NHTSA explained in the interim final In the interim final rule, NHTSA fatalities in which a driver, pedestrian explained that to qualify for basic grant rule that it will then, based on data or bicyclist had a positive BAC (.01 or contained in the Fatal Accident funds, States must now meet five out of higher) out of a total of 500 fatalities, 2 Reporting System (FARS) and using seven basic grant criteria. As before, if then the alcohol involvement rate for a State qualifies for a basic grant, it can NHTSA’s method for estimating alcohol the State is 200/500, or 40 percent. The involvement, determine the alcohol also seek to qualify for funds under one agency believes this measure represents or more of the supplemental grants. involvement rate in fatal crashes in the the most reliable and most consistent State in each of the three most recent However, the number of supplemental indicator of alcohol involvement in fatal grants has been reduced from seven to calendar years for which statistics for crashes. In addition, the data used to determining this rate are available and six. calculate this rate are easily accessible Massachusetts objected to the the average such rate for all States in and widely used in the highway safety movement of the 0.02 BAC requirement each of these three years. community. from a supplemental to a basic grant The State will qualify, under this North Dakota had no objections to the criterion, but recognized that the change criterion, in the first and in subsequent change made in the interim final rule, was Congressionally mandated. NHTSA years, if NHTSA determines that the but noted that NHTSA now permits received no other comments regarding data show that the alcohol involvement States to qualify under this criterion this change. It will remain in effect. rate in fatal crashes in the State has using saturation patrols, in lieu of decreased in each of the three most sobriety checkpoints. The State New Zero Tolerance Sanction recent calendar years for which expressed its support for the agency’s In the interim final rule, NHTSA statistics for determining such rate are flexibility, and notified the agency of its explained that Section 320 of the NHS available, and that the alcohol intention to apply for second year Act added a new Section 161 to title 23, involvement rate in fatal crashes in the Section 410 grant funding, based on the United States Code, which created a State has been lower than the average State’s saturation patrol program. such rate for all States in each of such NHTSA will continue to permit States 1 To receive a basic grant, States that qualified for calendar years. to qualify under this criterion based on section 410 funding in FY 1992 could demonstrate compliance with only four out of the five basic The agency received four comments saturation patrol programs. Four States grant criteria that were in effect at that time. regarding the regulatory changes (including North Dakota) have qualified 2 To receive a basic grant, States that qualified for concerning this criterion. California and for Section 410 funding on this basis. section 410 funding in FY 1992 have two options. Massachusetts supported the changes Based on the agency’s review of the They may qualify either by demonstrating compliance with four out of the five basic grant made to this criterion in the interim comments, the regulatory changes made criteria that were in effect at that time, or by final rule. Massachusetts said the in the interim final rule to the Section demonstrating compliance with five out of the changes seem ‘‘reasonable and 410 basic grant Statewide Program for seven current basic grant criteria. 55220 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations new zero tolerance sanction program. ‘‘0.02 BAC’’ grant criterion, a State must necessary legislation. The likelihood of The zero tolerance sanction program satisfy the requirements listed above, passage would be greater, encouraging more requires the withholding of certain and also provide for a 30-day driver’s states to adopt zero tolerance laws more Federal-aid highway funds from States license suspension or revocation. The quickly. This, in turn, would help reduce the number of impaired teenagers and young that do not enact and enforce a ‘‘zero 30-day suspension or revocation period adults on the road and reduce the number of tolerance’’ law. The ‘‘zero tolerance’’ must be a mandatory hard suspension or fatalities in this age group. [emphasis added] requirement contained in Section 161 is revocation (i.e., it may not be subject to similar, but not identical, to the ‘‘0.02 hardship, conditional or provisional Elsewhere in its comments, NAGHSR BAC’’ grant criterion contained in driving privileges). To demonstrate stated: Section 410. compliance with this criterion, States In our view, it is better for a state to adopt Section 410 provides that, to qualify must submit a law that provides for any zero tolerance measure and then revisit for funding under the ‘‘0.02 BAC’’ grant each element of the criterion, except the legislation and strengthen it in criterion, a State must provide ‘‘that any that States with laws that do not subsequent legislative sessions. The effect of person under age 21 with a BAC of 0.02 specifically provide for a 30-day such a strategy is to enable a state to quickly percent or greater when driving a motor close a significant loophole in its minimum suspension period may submit data drinking age law while allowing it to add vehicle shall be deemed to be driving showing that the average length of the desirable legislative features later on. while intoxicated.’’ Section 161 suspension term for offenders meets or [emphasis added] provides that, to avoid the withholding exceeds 30 days. of Federal-aid highway funds, a State In the interim final rule, NHTSA Advocates and the States of New York must enact and enforce ‘‘a law that requested comments regarding whether and Illinois supported the use of two considers an individual under the age of further changes to Part 1313 should be different standards. Advocates asserted 21 who has a BAC of 0.02 percent or made in light of the new zero tolerance that there is: greater while operating a motor vehicle program. Specifically, NHTSA ** * no logical reason for Section 161 in the State to be driving while requested comments regarding whether and the Section 410 program 0.02 BAC intoxicated or driving under the it should retain different requirements requirement to have identical penalty influence of alcohol.’’ under the ‘‘zero tolerance’’ sanction and criterion. Section 161 is a Congressional In an NPRM dated March 7, 1996, mandate that sets a nationally uniform the Section 410 ‘‘0.02 BAC’’ grant minimum level for zero tolerance * * *. NHTSA and the Federal Highway criterion, or whether it should amend With respect to the Section 410 program, the Administration (FHWA), the agencies the Section 410 ‘‘0.02 BAC’’ criterion to license suspension requirement should be responsible for jointly administering be the same as the ‘‘zero tolerance’’ longer. this new sanction program, stated that: sanction requirement. Illinois and New York expressed The agency received fourteen The agencies believe that, while Congress similar views. Illinois stated: intended to encourage all States to enact and comments concerning this issue. enforce effective zero tolerance laws, it also Comments were received from Although the two provisions are similar, intended to provide States with sufficient NAGHSR, eleven States, the NTSB and they involve different issues. The ‘‘zero flexibility so they could develop laws that Advocates for Highway and Auto Safety. tolerance’’ sanction involves a highway suited the particular conditions that exist in funding penalty, and the Section 410 ‘‘0.02 those States. Accordingly, the statute 1. Whether To Adopt a Single or BAC’’ criterion involves an incentive. It is prescribes only a limited number of basic Different Standards for 0.02 our opinion that keeping the license elements that State laws must meet to avoid suspension or revocation provision within NAGHSR and nine State commenters the Section 410 ‘‘0.02 BAC’’ criterion is the withholding of Federal-aid highway urged the agency to adopt a single funds. reasonable. standard for both the Section 410 ‘‘0.02 NHTSA and the FHWA proposed in BAC’’ grant criterion and the ‘‘zero New York asserted: the NPRM that, to avoid the sanction, tolerance’’ sanction requirement. These We see nothing inappropriate about having States must demonstrate that they have commenters believe the Section 410 one standard for incentives and another enacted and are enforcing a law that: (1) ‘‘0.02 BAC’’ grant criterion has been too standard for penalties. This allows states to Applies to all individuals under the age stringent, and they recommend that it be make choices among different levels of of 21; (2) sets a BAC of not higher than compliance that better represent each state’s reduced to match the criterion that was tolerance for safety legislation. 0.02 percent as the legal limit; (3) makes proposed for the zero tolerance program. operating a motor vehicle by an NTSB also recommended that the NHTSA agrees with this view. It has individual under the age of 21 above the agency adopt a single standard for the decided to establish a stricter standard legal limit a per se offense; and (4) two programs, but NTSB favored the for the Section 410 criterion than for the provides for primary enforcement. criterion currently contained in Section zero tolerance requirement. All States (In today’s Federal Register, NHTSA 410 over the proposed zero tolerance must meet the zero tolerance and the Federal Highway requirement. requirement, or they will be subject to Administration have published a In support of its recommendation that the mandatory withholding of funds. If separate final rule, relating to the zero NHTSA adopt a single standard, States wish to meet the stricter criterion tolerance program established in NAGHSR argued that a single standard contained in Section 410, they may be Section 161 of the NHS.) would provide clarity and would enable eligible for additional incentive grant funds. Impact of New Zero Tolerance Sanction legislatures to pass conforming on 0.02 BAC Criterion legislation more easily. Its comments 2. Whether To Change the Section 410 stated: In the interim final rule, NHTSA ‘‘0.02 BAC’’ Criterion explained that the proposed NAGHSR urges NHTSA to consider the As explained above, NAGHSR and requirement under the new zero adoption of one zero tolerance standard—the nine State commenters expressed their standard proposed under the March 7 Notice tolerance sanction differs from the of Proposed Rulemaking (NPRM) belief that the Section 410 ‘‘0.02 BAC’’ current requirement under the Section implementing the NHS sanctions. If such an grant criterion has been too stringent, 410 ‘‘0.02 BAC’’ grant criterion. To approach were taken, states would have to go and they recommend that it be reduced qualify for a Section 410 grant under the to their legislature only once to adopt the to match the criterion that was proposed Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55221 for the zero tolerance program. In Subsequent Year Applications Containers and Consumption of Alcohol particular, they recommend eliminating NAGHSR, Washington State and in Motor Vehicles), Supplemental the 30-day mandatory licensing sanction North Dakota recommend that the Criterion No. 2 (Suspension of requirement currently contained in qualification process for subsequent Registration and Return of License Plate Section 410. In support of its position, year Section 410 grants should be Program), Supplemental Criterion No. 3 NAGSHR stated: simplified. NAGHSR suggests that, once (Mandatory Alcohol Concentration While it may be highly desirable for states a State has qualified for a Section 410 Testing Program), Supplemental to enact strong zero tolerance laws, it may grant in one year, the State should only Criterion No. 4 (Drugged Driving not always be possible to motivate state be required to certify its continued Prevention), or Supplemental Criterion No. 5 (Per Se Level of 0.08), the State legislatures to do so. Similarly, while it may compliance in subsequent years, by may submit either a statement certifying be good public policy to reward states only certifying that ‘‘there has been no that there have been no substantive if they adopt the best possible legislation, substantive changes in laws or such legislation may not be feasible or changes in the State’s laws that would conditions.’’ attainable in a state for reasons totally affect compliance with Section 410 or a NAGHSR asserts that States are unrelated to the merits of the issue. copy of any amendments to the State’s required, under the current Section 410 laws. * * * * * regulation, to invest considerable time The goal, in NAGHSR’s view, is to In lieu of resubmitting a plan for and expense to qualify for Section 410 encourage states to enact zero tolerance laws, conducting a program or a program not just laws that fit a rigid zero tolerance grants every year, which places ‘‘a description to demonstrate compliance definition. States should not be deemed serious burden on very limited in subsequent years under Basic ineligible simply for their failure to qualify resources.’’ North Dakota explained that Criterion No. 3 (Statewide Program for with laws that meet narrowly defined a recertification process ‘‘would allow Stopping Motor Vehicles), Basic standards. staff to concentrate on traffic safety Criterion No. 5 (Minimum Drinking Age programs rather [than on] re- Prevention Program), Supplemental Advocates disagreed with NAGHSR’s documenting information already position. According to Advocates: Criterion No. 4 (Drugged Driving presented in the original application.’’ Prevention), or Supplemental Criterion The goal of Section 410 is not to assure that NHTSA appreciates these thoughtful No. 6 (Video Equipment Program), and all states have an equal opportunity to obtain comments. Under the current Section in lieu of resubmitting two detailed grants but rather to assure that those states 410 regulation, States are required to examples of community programs to that make substantive improvements in their submit different items of information to demonstrate compliance in subsequent state safety laws will receive grant funds to demonstrate compliance under each of enable them to sustain those efforts. years under Basic Criterion No. 4, the the criteria. These items of information State may submit either a statement Since Advocates supported a 30-day fall into three categories: laws; plans certifying that there have been no license suspension requirement for the and descriptions of programs; and data substantive changes in the State’s plans zero tolerance program, it recommended and other information showing or program that would affect that NHTSA consider a 90-day license effectiveness. compliance with Section 410 or a copy We agree that, if a State has qualified suspension requirement under Section of any changes to the State’s plans or under a criterion based on its laws and 410. program. there have been no substantive changes However, under some of the criteria, NTSB and the States of New York and in the laws since the time of the original the submission of data or certain other Illinois supported the current Section application, there is little reason to information showing effectiveness is 410 criterion, which requires a require the State to resubmit its laws in required. This information does change mandatory 30-day hard suspension, and its application for subsequent year from year to year, and the agency has urged that this criterion not be changed. funds. Similarly, if a State has qualified considered these submissions to be NTSB expressed its belief that the under a criterion based on a plan for critical to ensure and evaluate the existing Section 410 30-day requirement conducting a program or a description effectiveness of alcohol is ‘‘consistent with the Safety Board’s of its program and there have been no countermeasures. Accordingly, portions recommendations * * * and with the substantive changes in the State’s plans of the regulation that require data or intent of Congress.’’ New York or program since the time of the original other information showing effectiveness commented that ‘‘NHTSA has struck an application, there is little reason to in subsequent years will not be changed appropriate balance that will keep require the State to submit another at this time. public policy focused in a productive detailed plan or description in its States will continue to be required to direction for saving our youth.’’ Illinois subsequent year application. The agency submit data under Basic Criterion No. 1 stated: will no longer require this additional (Expedited Driver’s License Suspension Retention of the 30-day hard suspension is information. The regulation has been or Revocation System), information supported by our experience. In the first year amended to reflect this change. documenting that the prior year’s plan of our zero tolerance law enforcement, we In lieu of resubmitting its laws to was effectively implemented under saw an increase in young driver citations. demonstrate compliance in subsequent Basic Criterion No. 3 (Statewide Research shows that the swift and sure loss years the State receives a grant under Program for Stopping Motor Vehicles), of driving privileges is the most effective Basic Criterion No. 1 (Expedited data and certifications under Basic penalty for offenders. We strongly encourage Driver’s License Suspension or Criterion No. 4 (Self-Sustaining Drunk NHTSA to retain the license suspension or Revocation System), Basic Criterion No. Driving Prevention Program), and revocation provision in the Section 410 ‘‘0.02 BAC’’ criterion and to make no further 2 (Per Se Law), Basic Criterion No. 4 information documenting that the prior amendments to Part 1313. (Self-Sustaining Drunk Driving year’s plan was effectively implemented Prevention Program), Basic Criterion under Basic Criterion No. 5 (Minimum After considering carefully all of the No. 6 (Mandatory Sentencing), Basic Drinking Age Prevention). ‘‘Data States’’ comments received, NHTSA has Criterion No. 7 (Per Se Law for Persons will continue to be required to submit decided that it will not change the Under Age 21), Supplemental Criterion data under Basic Criterion No. 6 Section 410 ‘‘0.02 BAC’’ grant criterion. No. 1 (Program Making Unlawful Open (Mandatory Sentencing) and Basic 55222 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations

Criterion No. 7 (Per Se Law for Persons Paperwork Reduction Act § 1313.5 Requirements for a basic grant. Under Age 21). The requirements relating to the * * * * * To qualify in subsequent years for (h) Subsequent year submissions. (1) regulation that this rule is amending supplemental grants, States will In lieu of resubmitting its laws, that States retain and report to the continue to be required to submit regulations or binding policy directives Federal government information which information showing that it is actively to demonstrate compliance in demonstrates compliance with drunk enforcing its open container and anti- subsequent years the State receives a driving prevention incentive grant consumption statute under basic grant as provided in paragraphs criteria, are considered to be Supplemental Criterion No. 1 (Program (a)(2)(ii), (a)(3)(ii), (b)(2), (d)(2)(i), information collection requirements, as Making Unlawful Open Containers and (f)(2)(i), (f)(3)(i), (g)(2)(i), or (g)(3)(i) of that term is defined by the Office of Consumption of Alcohol in Motor this section, the State may submit either Management and Budget (OMB) in 5 Vehicles), data and information showing a statement certifying that there have CFR Part 1320. that the State is actively enforcing its been no substantive changes in the law and regarding any hardship Accordingly, these requirements have State’s laws, regulations or binding exceptions contained in its law under been submitted previously to and policy directives that would affect Supplemental Criterion No. 2 approved by OMB, pursuant to the compliance with Section 410 or a copy (Suspension of Registration and Return Paperwork Reduction Act (44 U.S.C. of any amendments to the State’s laws, of License Plate Program), data under 3501, et seq.). These requirements have regulations or binding policy directives. Supplemental Criterion No. 3 been approved under OMB No. 2127– (2) In lieu of resubmitting a plan for (Mandatory Alcohol Concentration 0501. This final rule reduces for the conducting a program to demonstrate Testing Program), evidence of the State’s States previous information collection compliance in subsequent years the participation in the Drug Evaluation and requirements. A request for an extension State receives a basic grant as provided Classification or an equivalent program of the OMB approval through November in paragraphs (c)(3) or (e)(3) of this and information and data on 1998 is currently pending. section, the State may submit either a prosecutions under Supplemental National Environmental Policy Act statement certifying that there have been Criterion No. 4 (Drugged Driving no substantive changes in the State’s Prevention), and information and data The agency has analyzed this action plans that would affect compliance with on the use and effectiveness of the for the purpose of the National Section 410 or a copy of any changes to equipment under Supplemental Environmental Policy Act of 1969 (42 the State’s plans. Criterion No. 6 (Video Equipment U.S.C. 4321 et seq.) and has determined (3) In lieu of resubmitting two Program). that it will not have any significant detailed examples of community impact on the quality of the human programs to demonstrate compliance in Regulatory Analyses and Notice environment. subsequent years the State receives a Executive Order 12778 (Civil Justice Executive Order 12612 (Federalism basic grant as provided in paragraph Reform) Assessment) (d)(2)(ii) of this section, the State may submit either a statement certifying that This final rule will not have any This action has been analyzed in there have been no substantive changes preemptive or retroactive effect. The accordance with the principles and in the State’s community programs that enabling legislation does not establish a criteria contained in Executive Order would affect compliance with Section procedure for judicial review of final 12612, and it has been determined that 410 or a copy of any changes to the rules promulgated under its provisions. this action does not have sufficient State’s programs. There is no requirement that individuals federalism implications to warrant the 3. Section 1313.6 is amended by submit a petition for reconsideration or preparation of a federalism assessment. adding paragraph (g) to read as follows: other administrative proceedings before Accordingly, the preparation of a they may file suit in court. Federalism Assessment is not § 1313.6 Requirements for supplemental grants. Executive Order 12866 (Regulatory warranted. * * * * * Planning and Review) and DOT List of Subjects in 23 CFR Part 1313 (g) Subsequent year submissions. (1) Regulatory Policies and Procedures Alcohol abuse, Drug abuse, Grant In lieu of resubmitting its laws, The agency has determined that this programs—transportation, Highway regulations or binding policy directives action is not a significant regulatory safety, Reporting and recordkeeping to demonstrate compliance in action within the meaning of Executive requirements. subsequent years the State receives a Order 12866 or Department of supplemental grant as provided in Transportation Regulatory Policies and In consideration of the foregoing, the paragraphs (a)(2)(ii), (b)(2)(ii), (c)(2)(ii), Procedures. Section 410 is a voluntary interim rule published in the Federal (c)(3)(i), (d)(2)(i), or (e)(2) of this section, program. Accordingly, a full regulatory Register of March 7, 1996, 61 FR 9101, the State may submit either a statement evaluation is not required. amending 23 CFR Part 1313, is adopted certifying that there have been no as final, with the following changes: substantive changes in the State’s laws, Regulatory Flexibility Act regulations or binding policy directives PART 1313ÐINCENTIVE GRANT In compliance with the Regulatory that would affect compliance with CRITERIA FOR DRUNK DRIVING Flexibility Act (Pub. L. 96–354, 5 U.S.C. Section 410 or a copy of any PREVENTION PROGRAMS 601–612), the agency has evaluated the amendments to the State’s laws, effects of this action on small entities. 1. The authority citation for Part 1313 regulations or binding policy directives. Based on the evaluation, we certify that continues to read as follows: (2) In lieu of resubmitting a plan or a this action will not have a significant description of its program in subsequent impact on a substantial number of small Authority: 23 U.S.C. 410; delegation of years the State receives a supplemental authority at 49 CFR 1.50. entities. Accordingly, the preparation of grant as provided in paragraph (d)(2)(iv) a Regulatory Flexibility Analysis is 2. Section 1313.5 is amended by or (f)(3) of this section, the State may unnecessary. adding paragraph (h) to read as follows: submit either a statement certifying that Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55223 there have been no substantive changes date thereof. 15 U.S.C. 1113(a). On PART 2ÐRULES OF PRACTICE IN in the State’s plan or program that September 17, 1996, a notice of TRADEMARK CASES would affect compliance with Section proposed rulemaking was published in 1. The authority citation for part 2 410 or a copy of any changes to the the Federal Register, at 61 FR 48872–73, continues to read as follows: State’s plan or program. to announce three proposed fees of Issued on: October 21, 1996. twenty dollars each, to recover costs Authority: 15 U.S.C. 1123; 35 U.S.C. 6, unless otherwise noted. Ricardo Martinez, associated with the insignia recordal Administrator, National Highway Traffic program. The PTO has received no 2. Section 2.7 is added to read as Safety Administration. comments regarding the proposed fees. follows: [FR Doc. 96–27314 Filed 10–22–96; 12:30pm] Additionally, the September 17th § 2.7 Fastener Recordal Fees. BILLING CODE 4910±59±P notice proposed to remove two rules (a) Application fee for recordal of from Part 2, 37 CFR 2.53 and 2.189, insignia...... $20.00 because they were deemed not (b) Renewal of insignia recordal...... $20.00 DEPARTMENT OF COMMERCE administratively necessary. Section 2.53 (c) Surcharge for late renewal of specifies the manner in which drawings insignia recordal ...... $20.00 Patent and Trademark Office must be transmitted. Section 2.189 § 2.53 [Removed] simply states the Office’s policy on 37 CFR Part 2 publishing amendments to the rules. 3. Section 2.53 is removed. [Docket No. 960828232±6294±02] This policy is not changing, but will no § 2.189 [Removed] longer be stated as a rule. No comments RIN 0651±AA90 4. Section 2.189 and the undesignated were received on the proposed removal center heading ‘‘Amendment of Rules’’ Establishment of Recordal Fees of the two rules. are removed. Associated With the Fastener Quality Other Considerations Dated: October 23, 1996. Act Bruce A. Lehman, This rule is not significant for the Assistant Secretary of Commerce and AGENCY: Patent and Trademark Office, purposes of Executive Order 12866. The Commerce. Commissioner of Patents and Trademarks. Office of Management and Budget [FR Doc. 96–27628 Filed 10–24–96; 8:45 am] ACTION: Final rule. approved the information collections BILLING CODE 3510±16±P required by this rule on October 1, 1996 SUMMARY: The Patent and Trademark Office (PTO) is amending the rules of (OMB number 0651–0028). This clearance expires October 31, 1999. The practice to establish fees associated with ENVIRONMENTAL PROTECTION affected public is manufacturers and recordation of insignia of manufacturers AGENCY and private label distributors to ensure private label distributors of certain types the traceability of a fastener to its of industrial fasteners. The estimated 40 CFR Part 271 average number of responses is six manufacturer or private label [FRL±5638±9] distributor. This amendment is in hundred. The estimated time per accordance with the provisions of the response is ten minutes, so the Montana: Final Authorization of State Fastener Quality Act. 15 U.S.C. 5401 et estimated total annual burden is one Hazardous Waste Management seq. hundred hours. The collected Program Revision information is needed to ensure that a EFFECTIVE DATE: November 25, 1996. fastener can be traced to its AGENCY: Environmental Protection FOR FURTHER INFORMATION CONTACT: manufacturer or private label Agency. Lizbeth Kulick by telephone at (703) distributor. ACTION: Immediate final rule. 308–8900, or by fax at (703) 308–7220, or by mail marked to her attention and Notwithstanding any other provision SUMMARY: Montana has applied for final addressed to the Assistant of law, no person is required to respond authorization of revisions to its Commissioner for Trademarks, 2900 to, nor shall a person be subject to a hazardous waste program under the Crystal Drive, Arlington, Virginia, penalty for failure to comply with, a Resource Conservation and Recovery 22202–3513. collection of information subject to the Act (RCRA). The Environmental SUPPLEMENTARY INFORMATION: On August requirements of the Paperwork Protection Agency (EPA) has reviewed 17, 1992, the Department of Commerce Reduction Act unless that collection of Montana’s application and has made a issued a notice of proposed rulemaking information displays a currently valid decision, subject to public review and to implement the Fastener Quality Act OMB Control Number. comment, that Montana’s hazardous (Act). 57 FR 37032. In that notice, the This proposed fee does not require waste program revision satisfies all of PTO was identified as the Office within notice and comment under 5 U.S.C. 553 the requirements necessary to qualify the Commerce Department with the or any other statute, so no analysis or for final authorization. Thus, EPA responsibility for recording the fastener certification is required under 5 U.S.C. intends to approve Montana’s hazardous insignia of manufacturers and private 603(a). waste program revisions. Montana’s label distributors as required by Section application for program revision is 8 of the Act. 57 FR 37033–35, August List of Subjects in 37 CFR Part 2 available for public review and comment. 17, 1992. The notice proposed that the Administrative practice and DATES: costs of recording insignia be recovered procedure, Courts, Lawyers, Final authorization for Montana by user fees. 57 FR 37035–36, August Trademarks. shall be effective December 24, 1996, 17, 1992. unless EPA publishes a prior Federal The PTO must publish a notice in the For the reasons set out in the Register action withdrawing this Federal Register of any change of its preamble, 37 CFR Part 2 is amended as immediate final rule. All comments on fees at least 30 days before the effective set forth below. Montana’s program revision 55224 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations application must be received by the (Public Law 98–616, November 8, 1984, which are included in the Montana close of business November 25, 1996. hereinafter ‘‘HSWA’’) allows States to program authorization revision sought ADDRESSES: Copies of Montana’s revise their programs to become today are listed in the Table below. program revision application are substantially equivalent instead of EPA has reviewed Montana’s available during regular business hours equivalent to RCRA requirements application and has made an immediate at the following addresses for inspection promulgated under HSWA authority. final decision that Montana’s hazardous and copying: Permitting and States exercising the latter option waste program revisions satisfy all of Compliance Division, Montana receive ‘‘interim authorization’’ for the the requirements necessary to qualify Department of Environmental Quality, HSWA requirements under Section for final authorization. Consequently, 2209 Phoenix Ave., Helena, Montana 3006(g) of RCRA, 42 U.S.C. 6926(g), and EPA intends to grant final authorization 59601, Phone: 406/444–1430 and U.S. later apply for final authorization for the for the additional program EPA Region VIII, Montana Office, 301 S. HSWA requirements. modifications to Montana. The public Revisions to State hazardous waste Park, Federal Building, Helena, MT may submit written comments on EPA’s programs are necessary when Federal or 59626, Phone: 406/441–1130. Written immediate final decision until State statutory or regulatory authority is comments should be sent to: Eric Finke, November 25, 1996. Copies of modified or when certain other changes U.S. Environmental Protection Agency, Montana’s application for program occur. Most commonly, State program 301 S. Park, Drawer 10096, Helena, MT revision are available for inspection and revisions are necessitated by changes to 59626. copying at the locations indicated in the EPA’s regulations in 40 CFR Parts 260– FOR FURTHER INFORMATION CONTACT: Eric ‘‘Addresses’’ section of this notice. 268, 124, 270, and 279. These regulatory Finke, Waste and Toxics Team Leader, changes are grouped into clusters. Approval of Montana’s program U.S. EPA, 301 S. Park, Drawer 10096, revision shall become effective in 60 Helena, MT 59626, Phone: (406) 441– B. Montana days unless a comment opposing the 1130 x239. Montana received partial Phase I authorization revision discussed in this SUPPLEMENTARY INFORMATION: Interim authorization in February, 1981. notice is received by the end of the Complete Phase I authorization was comment period. If an adverse comment A. Background received in February, 1982. Final is received, EPA will publish either: (1) States with final authorization under authorization of the ‘‘base program’’ was a withdrawal of the immediate final Section 3006(b) of the Resource received in July, 1984. Montana decision or (2) a notice containing a Conservation and Recovery Act received final authorization of its first response to comments which either (‘‘RCRA’’ or the ‘‘the Act’’), 42 U.S.C. update, known as Non-HSWA clusters I affirms that the immediate final 6929(b), have a continuing obligation to through IV in March 1994. A draft decision takes effect or reverses the maintain a hazardous waste program program revision application was decision. Upon the effective date of this that is equivalent to, consistent with, submitted in August 1992 and the final approval, Montana will be authorized to and no less stringent than the Federal application on February 27, 1995. Today carry out, in lieu of the Federal program, hazardous waste program. In addition, Montana is seeking approval of its those provisions of the State’s program as an interim measure, the Hazardous program revision in accordance with 40 which are analogous to the following and Solid Waste Amendments of 1984 CFR 271.21(b)(3). Specific provisions provisions of the Federal program:

HSWA or FR Reference State Equivalent 1

Identification and listing of Hazardous Waste; Treatability Studies Sample Exemption, 53 FR 27290, 07/19/88 ...... 75±10±403, 75±10±405, MCA. Hazardous Waste Management System; Standards for Hazardous Waste Storage and Treatment Tank Systems, 53 75±10±405, MCA. FR 34079, 09/02/88. Identification and Listing of Hazardous Waste; and Designation, Reportable Quantities, and Notification, 53 FR 75±10±405, MCA 35412, 09/13/88. Permit Modifications for Hazardous Waste Management Facilities, 53 FR 37912, 09/28/88; and 53 FR 41649, 10/24/ 75±10±405, 75±10±406, 88. MCA Statistical Methods for Evaluation ground Water Monitoring data from Hazardous Waste Facilities, 53 FR 39720, 10/ 75±10±405, MCA. 11/88. Identification and Listing of Hazardous Waste; Removal of Iron Dextran from the List of Hazardous Wastes, 53 FR 75±10±405, MCA. 43878, 10/31/88. Identification and Listing of Hazardous Waste; Removal of Strontium Sulfide from the List of Hazardous Wastes, 53 75±10±405, MCA. FR 43881, 10/31/88. Hazardous Waste Miscellaneous Units; Standards Applicable to Owners and Operators (Technical Correction), 54 75±10±405, MCA. FR 615, 01/09/89. Amendment to Requirements for Hazardous Waste Incinerator Permits, 54 FR 4286, 01/30/89 ...... 75±10±405, MCA. Changes to Interim Status Facilities for Hazardous Waste Management Permits; Modifications of Hazardous Waste 75±10±404 and 75±10± Permits; Procedures for Post-Closure Permitting, 54 FR 9596, 03/07/89. 405, MCA. 1 References are to the Administrative Rules of Montana, revised September 30, 1995 and the Montana Code as Annotated (MCA).

Indian Reservations 1. Blackfeet Indian Reservation 7. Rocky Boy’s Indian Reservation 2. Crow Tribe of Montana Indian The program revision does not extend In excluding Indian Country from the Reservation scope of this program revision, EPA is to ‘‘Indian Country’’ as defined in 18 3. Flathead Indian Reservation U.S.C. Section 1151, including lands 4. Fort Belknap Indian Reservation not making a determination that the within the exterior boundaries of the 5. Fort Peck Indian Reservation State either has adequate jurisdiction or following Indian reservations located 6. Northern Cheyenne Indian lacks jurisdiction over sources in Indian within the State of Montana. Reservation Country. Should the State of Montana Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55225 choose to seek program authorization Small Business Regulatory Enforcement Even if today’s rule did contain a within Indian Country, it may do so Fairness Act. Pursuant to the provision Federal mandate, this rule will not without prejudice. Before EPA would at 5 U.S.C. 605(b), I hereby certify that result in annual expenditures of $100 approve the State’s program for any this authorization will not have a million or more for State, local, and/or portion of Indian Country, EPA would significant economic impact on a tribal governments in the aggregate, or have to be satisfied that the State has substantial number of small entities. the private sector. Costs to State, local authority, either pursuant to explicit This authorization approves regulatory and/or tribal governments already exist Congressional authorization or requirements under existing State law to under the Montana program, and applicable principles of Federal Indian which small entities are already subject. today’s action does not impose any law, to enforce its laws against existing It does not impose any new burdens on additional obligations on regulated and potential pollution sources within small entities. This rule, therefore, does entities. In fact, EPA’s approval of state any geographical area for which it seeks not require a regulatory flexibility programs generally may reduce, not program approval and that such analysis. increase, compliance costs for the approval would constitute sound private sector. Submission to Congress and the administrative practice. The requirements of section 203 of General Accounting Office There are no EPA-issued RCRA UMRA also do not apply to today’s permits in Indian Country at this time. Under 5 U.S.C. 801(a)(1)(A) as added action. Before EPA establishes any C. Decision by the Small Business Regulatory regulatory requirements that may Enforcement Fairness Act of 1996, EPA significantly or uniquely affect small I conclude that Montana’s application submitted a report containing this rule governments, section 203 of the UMRA for program revision meets all of the and other required information to the requires EPA to develop a small statutory and regulatory requirements U.S. Senate, the U.S. House of government agency plan. This rule established by RCRA. Accordingly, Representatives and the Comptroller contains no regulatory requirements that Montana is granted final authorization General of the General Accounting might significantly or uniquely affect to operate its hazardous waste program Office prior to publication of the rule in small governments. The Agency as revised by this application. today’s Federal Register. This rule is recognizes that although small Montana has responsibility for not a ‘‘major rule’’ as defined by 5 governments may be hazardous waste permitting treatment, storage, and U.S.C. 804(2). generators, transporters, or own and/or disposal facilities within its borders and operate TSDFs, they are already subject Unfunded Mandates Reform Act carrying out other aspects of the RCRA to the regulatory requirements under program, subject to the limitation of its Title II of the Unfunded Mandates existing state law which are being revised program application and Reform Act of 1995 (UMRA), P.L. 104– authorized by EPA, and, thus, are not previously approved authorities. 4, establishes requirements for Federal subject to any additional significant or Montana also has primary enforcement agencies to assess the effects of certain unique requirements by virtue of this responsibilities, although EPA retains regulatory actions on State, local, and program approval. the right to conduct inspections under tribal governments and the private Authority: This notice is issued under the Section 3007 of RCRA and to issue sector. Under sections 202 and 205 of orders under Section 3008, 3013, and authority of Sections 2002(a), 3006 and the UMRA, EPA generally must prepare 7004(b) of the Solid Waste Disposal Act as 7003 of RCRA. a written statement of economic and amended 42 U.S.C. 6912 (a), 6926, 6974(b). Compliance with Executive Order regulatory alternatives analyses for Dated: October 9, 1996. 12866 proposed and final rules with Federal Jack W. McGraw, The Office of Management and Budget mandates, as defined by the UMRA, that Acting Regional Administrator. has exempted this rule from the may result in expenditures to State, [FR Doc. 96–27479 Filed 10–24–96; 8:45 am] local, and tribal governments, in the requirements of Section 6 of Executive BILLING CODE 6560±50±P Order 12866. aggregate, or to the private sector, of $100 million or more in any one year. Certification under the Regulatory The section 202 and 205 requirements Flexibility Act do not apply to today’s action because DEPARTMENT OF COMMERCE EPA has determined that this it is not a ‘‘Federal mandate’’ and National Oceanic and Atmospheric authorization will not have a significant because it does not impose annual costs Administration economic impact on a substantial of $100 million or more. number of small entities. Such small Today’s rule contains no Federal 50 CFR Part 300 entities which are hazardous waste mandates for State, local or tribal generators, transporters, or which own governments or the private sector for [I.D. 101696A] and/or operate TSDFs are already two reasons. First, today’s action does Fraser River Sockeye and Pink Salmon subject to the regulatory requirements not impose new or additional Fisheries; Inseason Orders under existing State law which are enforceable duties on any State, local or being authorized by EPA. EPA’s tribal governments or the private sector AGENCY: National Marine Fisheries authorization does not impose any because the requirements of the Service (NMFS), National Oceanic and additional burdens on these small Montana program are already imposed Atmospheric Administration (NOAA), entities. This is because EPA’s by the State and subject to State law. Commerce. authorization would simply result in an Second, the Act also generally excludes ACTION: Inseason orders. administrative change, rather than a from the definition of a ‘‘Federal change in the substantive requirements mandate’’ duties that arise from SUMMARY: NMFS publishes inseason imposed on these small entities. participation in a voluntary Federal orders regulating fisheries in U.S. Therefore, EPA provides the following program. Montana’s participation in an waters. The orders were issued by the certification under the Regulatory authorized hazardous waste program is Fraser River Panel (Panel) of the Pacific Flexibility Act, as amended by the voluntary. Salmon Commission (Commission) and 55226 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations subsequently approved and issued by inseason orders are issued, publication All-Citizen Fishery the Secretary of Commerce (Secretary) of individual orders is impractical. The during the 1996 sockeye fisheries within 1996 orders are therefore being Areas 7 and 7A southerly and easterly the Fraser River Panel Area (Panel published in this document as a of a line from the low water range Area). These orders established fishing composite of the year’s inseason actions. marker in Boundary Bay on the times, areas, and types of gear for U.S. The following inseason orders were International Boundary, through the east treaty Indian and all-citizen fisheries adopted by the Panel and issued for U.S. tip of point Roberts, to the East Point during the period that the Commission fisheries by the Secretary during the Light on Saturna Island: Purse seines exercised jurisdiction over these 1996 fishing season. The times listed are open 6 a.m. to 10 a.m., August 16. fisheries. Due to the frequency with local times, and the areas designated are Gillnets open 5 p.m. to 9 p.m., August which inseason orders are issued, Puget Sound Management and Catch 16. publication of individual orders is Reporting Areas as defined in the Order No. 1996–7: Issued 1:45 p.m., impracticable. The 1996 orders are Washington State Administrative Code August 16, 1996 therefore being published in this at Chapter 220–22. document as a composite of the year’s Treaty Indian Fishery inseason orders. Order No, 1996–1: Issued 12:50 p.m., July 30, 1996 Areas 4B, 5, and 6C: Drift gillnets EFFECTIVE DATES: Each of the following open from 12 p.m., August 17 to 12 inseason orders was effective upon Treaty Indian Fishery p.m., August 23. announcement on telephone hotline Areas 4B, 5, and 6C: Open for drift numbers as specified at 50 CFR Order No. 1996–8: Issued at 12:15 p.m., gillnets from 12 p.m., August 1 to 12 300.97(b)(1). August 19, 1996 p.m., August 4. FOR FURTHER INFORMATION CONTACT: All-Citizen Fishery William L. Robinson, 206-526-6140. Order No. 1996–2: Issued 3:30 p.m., SUPPLEMENTARY INFORMATION: The August 2, 1996 Areas 7 and 7A southerly of a line Treaty between the Government of the Treaty Indian Fishery from Iwersen’s Dock on Point Roberts to United States of America and the the Georgina Point Light at the entrance Government of Canada Concerning Areas 4B, 5, and 6C: Closed for drift to Active Pass: Gillnets open 7 p.m., Pacific Salmon was signed at Ottawa on gillnets effective 12 p.m., August 3. August 19 to 7 a.m., August 20. January 28, 1985, and subsequently was Order No. 1996–3: Issued at 11:25 a.m., Purse seines open 7 a.m. to 7 p.m., given effect in the United States by the August 5, 1996 August 20. Pacific Salmon Treaty Act (Act) at 16 U.S.C. 3631–3644. Treaty Indian Fishery Order No. 1996–9: Issued at 12:45 p.m., August 23, 1996 Under authority of the Act, Federal Areas 4B, 5, and 6C: Drift gillnets regulations at 50 CFR part 300 subpart open 12 p.m., August 6 to 12 p.m., Treaty Indian and All-Citizen Fisheries F (61 FR 35548, July 5, 1996) provide a August 7. framework for implementation of Areas 6, 7, and 7A: Open for net Areas 4B, 5, and 6C: Relinquish certain regulations of the Commission fishing from 5 a.m. to 9 p.m., August 7. regulatory control effective Sunday, and inseason orders of the August 25. Commission’s Panel for sockeye and Order No. 1996–4: Issued 3:55 p.m., August 11, 1996 Order No. 1996–10: Issued at 1:05 p.m., pink salmon fisheries in the Panel Area August 27, 1996 that apply during the period each year Treaty Indian Fishery when the Commission exercises All-Citizen Fishery jurisdiction over these fisheries. Areas 4B, 5, and 6C: Drift gillnets The regulations close the Panel Area open 5 p.m., August 11 to 5 p.m., Area 7A: Gillnets open 7 p.m., August to sockeye and pink salmon fishing August 13. 27 to 7 a.m., August 28. Purse seines unless opened by Panel regulations or Areas 6, 7, and 7A: Open for net open 7 a.m. to 7 p.m., August 28, with by inseason orders of the Secretary that fishing from 5 p.m., August 12 to 9 p.m., non-retention of chinook salmon. give the effect to Panel orders, unless August 13 southerly and easterly of a Order No. 1996–11: Issued at 11:45 such orders are determined not to be line from the low water range marker in a.m., September 12, 1996 consistent with domestic legal Boundary Bay on the International obligations. During the fishing season, Boundary, through the east tip of Point Treaty Indian and All-Citizen Fisheries the Secretary may issue orders that Roberts, to the East Point Light on Area 7A: Relinquish regulatory establish fishing times and areas Saturna Island. control effective Sunday, September 15. consistent with the annual Commission Order No. 1996–5: Issued 2 p.m., regime and inseason orders of the Panel. Classification August 12, 1996 Such orders must be consistent with domestic legal obligations. The Treaty Indian Fishery This action is authorized by 50 CFR Secretary issues inseason orders through 300.97, and is exempt from review Areas 4b, 5, and 6C: Drift gillnets his delegate, the Regional under E.O. 12866. open from 5 p.m., August 13 to 12 p.m., Administrator, Northwest Region, Authority: 16 U.S.C. 3636(b). August 15. NMFS. Official notice of these inseason Dated: October 18, 1996 actions of the Secretary is provided by Order No. 1996–6: Issued at 4:15 p.m., Gary C. Matlock, two telephone hotline numbers August 14, 1996 Director, Office of Sustainable Fisheries, described at 50 CFR 300.97(b)(1). Treaty Indian Fishery National Marine Inseason orders of the Secretary must be published in the Federal Register as Areas 4B, 5, and 6C: Drift gillnets Fisheries Service. soon as practicable after they are issued. open from 12 p.m., August 15 to 12 [FR Doc. 96–27368 Filed 10–24–96; 8:45 am] Due to the frequency with which p.m., August 17. BILLING CODE 3510±22±F 55227

Proposed Rules Federal Register Vol. 61, No. 208

Friday, October 25, 1996

This section of the FEDERAL REGISTER (OMB), and the Director of the Office of pay area. Because the pay disparity was contains notices to the public of the proposed Personnel Management (OPM)) to less than 2⁄10ths of a percentage point issuance of rules and regulations. The provide for such pay localities as the below the pay disparity for ‘‘Rest of purpose of these notices is to give interested Pay Agent considers appropriate. In so U.S.,’’ the Federal Salary Council persons an opportunity to participate in the doing, the Pay Agent must give recommended establishing Orlando, FL, rule making prior to the adoption of the final rules. thorough consideration to the views and as a separate locality pay area. (Under recommendations of the Federal Salary established policy, any surveyed area Council, a body composed of experts in with a pay disparity of 2⁄10ths of a OFFICE OF PERSONNEL the fields of labor relations and pay and percentage point or more below the MANAGEMENT representatives of Federal employee ‘‘Rest of U.S.’’ pay disparity does not organizations. Members of the Federal qualify to be established or continued as 5 CFR Part 531 Salary Council are appointed by the a locality pay area. Also, a locality pay RIN 3206±AH65 President and meet regularly to consider area must be dropped if its pay disparity issues related to the locality pay system is below the ‘‘Rest of U.S.’’ pay disparity Pay Under the General Schedule; for General Schedule employees. in three consecutive annual surveys.) Locality Pay Areas for 1998 Starting with the January 1996 The Federal Salary Council also locality payments, 5 U.S.C. 5304(d)(1) recommended that the Orlando, FL, AGENCY: Office of Personnel requires the Pay Agent to make locality pay percentage be set equal to Management. recommendations to the President on the ‘‘Rest of U.S.’’ locality pay ACTION: Proposed rule with request for the locality pay areas no later than 13 percentage in 1998 and that the comments. months before the start of the calendar Orlando, FL, pay gap be averaged with year for which the locality payments are the ‘‘Rest of U.S.’’ pay gap to determine SUMMARY: The Office of Personnel paid. In late 1995, the President’s Pay the combined pay gap for the two areas. Management is issuing proposed Agent adopted the recommendations of This is consistent with past practices for regulations to remove two metropolitan the Federal Salary Council concerning dealing with locality pay areas in which areas from the ‘‘Rest of U.S.’’ locality locality pay areas for 1997 in their the locality pay percentage is below the pay area and establish two new locality entirety. These recommendations ‘‘Rest of U.S.’’ percentage. pay areas in January 1998 corresponding resulted in the establishment of a total The BLS surveys showed that the pay to these metropolitan areas. The two of 30 locality pay areas consisting of 29 disparity in the Hartford, CT MSA was metropolitan areas affected by this areas corresponding to Metropolitan greater than the pay disparity in the proposed regulation are Hartford, CT, Statistical Areas (MSA’s) or ‘‘Rest of U.S.’’ locality pay area. Thus, and Orlando, FL. These proposed Consolidated Metropolitan Statistical the Federal Salary Council changes are based on a recommendation Areas (CMSA’s) (as defined by OMB), recommended that the Hartford, CT of the Federal Salary Council. The including certain ‘‘areas of application’’ MSA be added as a separate locality pay purpose of this notice is to solicit public contiguous to two areas, plus one area area. It also recommended that that comments on the boundaries of locality composed of the ‘‘Rest of U.S.’’ (See 61 portion of New London County, CT, pay areas recommended by the Federal FR 40949, August 7, 1996.) If OMB outside the Hartford, CT MSA be added Salary Council before the President’s makes changes in the boundaries of to the Hartford locality pay area as an Pay Agent makes a final determination MSA’s and CMSA’s, the boundaries of ‘‘area of application.’’ on this matter. the corresponding locality pay areas are ‘‘Areas of application’’ are areas DATES: Comments must be received on automatically changed accordingly. contiguous to an MSA or CMSA that are or before November 25, 1996. At its meeting on October 4, 1996, the included in the corresponding pay ADDRESSES: Comments may be sent or Federal Salary Council recommended locality for locality pay purposes. In delivered to Donald J. Winstead, that two areas—Hartford, CT, and 1994, the Federal Salary Council Assistant Director for Compensation Orlando, FL—be removed from the developed the following criteria for Policy, Human Resources Systems ‘‘Rest of U.S.’’ locality pay area and consideration as areas of application to Service, Office of Personnel established as separate locality pay pay localities: Management, Room 6H31, 1900 E Street areas effective in January 1998. These a. County-wide areas of application. NW., Washington, DC 20415 (FAX: two new locality pay areas ′′would be in To be considered, the affected county (202) 606–0824). addition to the 30 locality pay areas must meet all of the following criteria: FOR FURTHER INFORMATION CONTACT: established for the 1997 locality 1. Be contiguous to a pay locality. Jeanne D. Jacobson, (202) 606–2858 or payments. 2. Contain at least 2,000 GS–GM FAX: (202) 606–0824. At the direction of the Pay Agent employees. SUPPLEMENTARY INFORMATION: Section following an earlier recommendation of 3. Have a significant level of 5304(a)(1) of title 5, United States Code, the Federal Salary Council, the Bureau urbanization, based on 1990 Census provides that locality payments shall be of Labor Statistics (BLS) conducted data. (A ‘‘significant level of payable within each locality determined additional local salary surveys in 1995– urbanization’’ is defined as a population to have a pay disparity greater than 5 96 in the MSA’s for Hartford, CT, and density of more than 200 per square percent. Section 5304(f)(1) authorizes Orlando, FL. The surveys showed that mile or at least 90 percent of the the President’s Pay Agent (consisting of the pay disparity in the Orlando, FL population in urbanized areas.) the Secretary of Labor, the Director of MSA was slightly below the pay 4. Demonstrate some economic the Office of Management and Budget disparity in the ‘‘Rest of U.S.’’ locality linkage with the pay locality, defined as 55228 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules commuting at a level of 5 percent or The definitions of the MSA’s and Ellington town more into or from the areas in question. CMSA’s that comprise the locality pay Hebron town (The areas in question are the areas are found in OMB Bulletin No. Mansfield town contiguous county under consideration 96–08, June 28, 1996. Based on these Somers town and the central counties—or in the case definitions, the two proposed locality Stafford town of New England, the central cores— pay areas for 1998 will be composed of Tolland town identified by the Census Bureau for the the following geographic areas: Vernon town process of defining the CMSA’s or Willington town Orlando, FL, Locality Pay Area MSA’s involved.) Windham County (part) b. Federal facilities crossing pay Lake County locality boundaries. To be included in a Orange County Ashford town pay locality the portion of a federal Osceola County Chaplin town facility which crosses pay locality Seminole County Windham town boundaries and which is not in the pay Hartford, CT, Locality Pay Area The Pay Agent’s decision regarding locality must meet all of the following locality pay areas for 1998 must be criteria: Hartford County (part) made no later than November 30, 1996. 1. Have at least 1,000 GS–GM Avon town Therefore, OPM has established a 30- employees. Berlin town day public comment period for these 2. Have the duty station(s) of the Bloomfield town proposed regulations. After the public majority of GS–GM employees within Bristol city comment period, the Pay Agent will 10 miles of the prime critical survey Burlington town consider the comments received from boundary area. Canton town Federal employees, agencies, employee 3. Have a significant number of its East Granby town organizations, and other interested employees commuting from the pay East Hartford town parties before making its determination locality. East Windsor town on the establishment of pay localities. However, because OMB defines Enfield town The Pay Agent also will consider any CMSA’s and MSA’s in New England by Farmington town additional views and recommendations townships and cities instead of Glastonbury town expressed directly to the Pay Agent by counties, the above-stated criteria for Granby town any member of the Federal Salary consideration as an ‘‘area of Hartford city Council or by employee organizations application’’ cannot be fully applied to Manchester town not represented on the Council. The New London County, part of which is Marlborough town final regulations issued by OPM will outside the Hartford, CT MSA. New Britain city reflect the Pay Agent’s final Therefore, the Federal Salary Council Newington town determination on this matter. has adopted the following set of criteria Plainville town E.O. 12866, Regulatory Review for consideration of partial counties as Rocky Hill town ‘‘areas of application’’: Simsbury town This rule has been reviewed by the Criteria for Partial-County Areas of Southington town Office of Management and Budget in Application in New England South Windsor town accordance with E.O. 12866. 1. The partial-county area must be Suffield town Regulatory Flexibility Act contiguous to the pay locality (exclusive West Hartford town Wethersfield town I certify that these regulations would of any other areas of application) and not have a significant economic impact must currently be included in the ‘‘Rest Windsor town Windsor Locks town on a substantial number of small entities of U.S.’’ locality pay area. because they would apply only to 2. The partial-county area must Litchfield County (part) Federal agencies and employees. contain at least 2,000 GS employees. 3. The entire county must have a Barkhamsted town List of Subjects in 5 CFR Part 531 population density of more than 200 per Harwinton town New Hartford town Government employees, Law square mile or at least 90 percent of the enforcement officers, Wages. population in urbanized areas. Plymouth town 4. The entire county must Winchester town Office of Personnel Management. demonstrate some economic linkage Middlesex County (part) James B. King, with the pay locality, defined as Director. Cromwell town commuting at a level of 5 percent or Accordingly, OPM is proposing to Durham town more into or from the areas in question. amend part 531 of title 5, Code of East Haddam town (The areas in question are the entire Federal Regulations, as follows: county under consideration and the East Hampton town central core of the MSA as defined by Haddam town PART 531ÐPAY UNDER THE the Census Bureau for use in Middlefield town GENERAL SCHEDULE establishing metropolitan areas.) Middletown city Because New London County, CT, Portland town 1. The authority citation for part 531 continues to read as follows: meets all of the above-stated criteria, the New London County (all) Federal Salary Council has Authority: 5 U.S.C. 5115, 5307, and 5338; recommended that that portion of New Tolland County (part) sec. 4 of Pub. L. 103–89, 107 Stat. 981; and London County, CT, outside the Andover town E.O. 12748, 56 FR 4521, 3 CFR, 1991 Comp., Hartford, CT MSA be included in the Bolton town p. 316. Hartford, CT, locality pay area as an Columbia town Subpart B also issued under 5 U.S.C. ‘‘area of application.’’ Coventry town 5303(g), 5333, 5334(a), and 7701(b)(2); Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules 55229

Subpart C also issued under 5 U.S.C. (16) Los Angeles–Riverside–Orange DEPARTMENT OF AGRICULTURE 5304, 5305, and 5553; sections 302 and County, CA—consisting of the Los 404 of FEPCA, Pub. L. 101–509, 104 Angeles–Riverside–Orange County, CA Agricultural Marketing Service Stat. 1462 and 1466; and section 3(7) of CMSA; plus Santa Barbara County, CA, 7 CFR Parts 1005, 1007, 1011, 1046 Pub. L. 102–378, 106 Stat. 1356; and that portion of Edwards Air Force Subpart D also issued under 5 U.S.C. Base, CA, not located within the Los [Docket No. AO±388±A9, et al.; DA±96±08] 5535(g) and 7701(b)(2); Angeles–Riverside–Orange County, CA Subpart E also issued under 5 U.S.C. CMSA; Milk in the Carolina and Certain Other 5336; Marketing Areas; Notice of Extension Subpart F also issued under 5 U.S.C. (17) Miami–Fort Lauderdale, FL— of Time for Filing Comments 5304, 5305(g)(1), and 5553; and E.O. consisting of the Miami–Fort 12883, 58 FR 63281, 3 CFR, 1993 Lauderdale, FL CMSA; 7 Comp., p. 682; CFR Marketing area AO Nos. (18) Milwaukee–Racine, WI— Part Subpart G also issued under 5 U.S.C. consisting of the Milwaukee–Racine, WI 5304, 5305, and 5553; section 302 of the CMSA; 1005 Carolina ...... AO±388±A9 Federal Employees Pay Comparability 1007 Southeast ...... AO±366±A38 Act of 1990 (FEPCA), Pub. L. 101–509, (19) Minneapolis–St. Paul, MN–WI— 1011 Tennessee Valley ...... AO±251±A40 104 Stat. 1462; and E.O. 12786, 56 FR consisting of the Minneapolis–St. Paul, 1046 Louisville-Lexington- AO±123±A67 67453, 3 CFR, 1991 Comp., p. 376. MN–WI MSA; Evansville. (20) New York–Northern New Jersey– Subpart FÐLocality-Based Long Island, NY–NJ–CT–PA—consisting AGENCY: Agricultural Marketing Service, Comparability Payments of the New York–Northern New Jersey– USDA. Long Island, NY–NJ–CT–PA CMSA; ACTION: Extension of time for filing 2. In § 531.603, paragraph (b) is comments to the tentative partial revised to read as follows: (21) Orlando, FL—consisting of the decision. Orlando, FL MSA; § 531.603 Locality pay areas. SUMMARY: (22) Philadelphia–Wilmington– This notice extends the time * * * * * for filing comments to the tentative Atlantic City, PA–NJ–DE–MD— (b) The following are locality pay partial decision which would consisting of the Philadelphia– areas for the purpose of this subpart: incorporate a transportation credit (1) Atlanta, GA—consisting of the Wilmington–Atlantic City, PA–NJ–DE– balancing fund into four Federal milk Atlanta, GA MSA; MD CMSA; marketing orders in the southern United (2) Boston–Worcester–Lawrence, MA– (23) Pittsburgh, PA—consisting of the States. The amendments are based on NH–ME–CT—consisting of the Boston– Pittsburgh, PA MSA; the record of a public hearing held May Worcester–Lawrence, MA–NH–ME–CT (24) Portland–Salem, OR–WA— 15–16, 1996, in Charlotte, North CMSA; Carolina. Carolina Virginia Milk (3) Chicago–Gary–Kenosha, IL–IN– consisting of the Portland–Salem, OR– WA CMSA; Producers Association requested WI—consisting of the Chicago–Gary– additional time to observe and evaluate Kenosha, IL–IN–WI CMSA; (25) Richmond–Petersburg, VA— the amendments. The time has been (4) Cincinnati–Hamilton, OH–KY– consisting of the Richmond–Petersburg, extended forty-five (45) days to IN—consisting of the Cincinnati– VA MSA; November 30, 1996. Hamilton, OH–KY–IN CMSA; DATES: Comments are now due on or (5) Cleveland–Akron, OH—consisting (26) Sacramento–Yolo, CA— before November 30, 1996. of the Cleveland–Akron, OH CMSA; consisting of the Sacramento–Yolo, CA (6) Columbus, OH—consisting of the CMSA; ADDRESSES: Comments (six copies) Columbus, OH MSA; (27) St. Louis, MO–IL—consisting of should be filed with the Hearing Clerk, (7) Dallas–Fort Worth, TX—consisting the St. Louis, MO–IL MSA; Room 1083, South Building, United of the Dallas–Fort Worth, TX CMSA; States Department of Agriculture, (28) San Diego, CA—consisting of the (8) Dayton–Springfield, OH— Washington, DC 20250. San Diego, CA MSA; consisting of the Dayton–Springfield, FOR FURTHER INFORMATION CONTACT: OH MSA; (29) San Francisco–Oakland–San Jose, Nicholas Memoli, Marketing Specialist, (9) Denver–Boulder–Greeley, CO— CA—consisting of the San Francisco– USDA/AMS/Dairy Division, Order consisting of the Denver–Boulder– Oakland–San Jose, CA CMSA; Formulation Branch, Room 2971, South Greeley, CO MSA; (30) Seattle–Tacoma–Bremerton, Building, P.O. Box 96456, Washington, (10) Detroit–Ann Arbor–Flint, MI— WA—consisting of the Seattle–Tacoma– DC 20090–6456, (202) 690–1932. consisting of the Detroit–Ann Arbor– Bremerton, WA CMSA; SUPPLEMENTARY INFORMATION: Flint, MI CMSA; Prior documents in this proceeding: (11) Hartford, CT—consisting of the (31) Washington–Baltimore, DC–MD– Notice of Hearing: Issued May 1, Hartford, CT MSA plus that portion of VA–WV—consisting of the Washington– 1996; published May 3, 1996 (61 FR New London County, CT, not located Baltimore, DC–MD–VA–WV CMSA, 19861). within the Hartford, CT MSA; plus St. Mary’s County, MD; and Tentative Partial Decision: Issued July (12) Houston–Galveston–Brazoria, (32) Rest of U.S.—consisting of those 12, 1996; published July 18, 1996 (61 FR TX—consisting of the Houston– portions of the continental United States 37628). Galveston–Brazoria, TX CMSA; not located within another locality pay Interim Amendment of Rules: Issued August 2, 1996; published August 9, (13) Huntsville, AL—consisting of the area. Huntsville, AL MSA; 1996 (61 FR 41488). (14) Indianapolis, IN—consisting of [FR Doc. 96–27629 Filed 10–24–96; 8:45 am] Notice of Extension of Time for Filing the Indianapolis, IN MSA; BILLING CODE 6325±01±M Comments to Tentative Partial Decision: (15) Kansas City, MO–KS—consisting Issued August 16, 1996; published of the Kansas City, MO–KS MSA; August 23, 1996 (61 FR 43474). 55230 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules

A notice was published in the Federal DEPARTMENT OF ENERGY in 1992, 57 FR 7541 (March 3, 1992), Register on August 23, 1996 (61 FR provides a remedy for a contractor 43474), extending the time to file 10 CFR Part 708 employee who has been discriminated comments to the tentative partial final against as a result of having disclosed Contractor Employee Protection decision regulating the handling of milk information about waste, fraud, abuse, Program in the Carolina, Southeast, Tennessee or mismanagement of health, safety, or Valley and Louisville-Lexington- AGENCY: Department of Energy. environmental related matters, or about Evansville marketing areas from August ACTION: Notice of inquiry. violations of law or regulation, for 17 to October 16, 1996. Notice is hereby participating in Congressional SUMMARY: proceedings, or for having in good faith given that the time for filing comments The Department of Energy’s contractor employee protection program refused to engage in illegal or dangerous to the tentative partial decision provides recourse to DOE contractor activities. Since its inception, the regulating the handling of milk in the employees who believe that they have Department has received comments and aforesaid marketing areas is hereby been retaliated against for such suggestions on how to improve the further extended from October 16 to activities as disclosing information contractor employee protection November 30, 1996. regarding mismanagement of program. In November 1995, the Office The initial comment period was environmental, safety, health, and other of Contractor Employee Protection was extended, from August 16 to October 17, matters, for participating in transferred to the Office of Inspector 1996, at the request of Carolina Virginia Congressional proceedings, or for General. In response to congressional Milk Producers Association, to allow refusing to engage in illegal or directive, the Office of Contractor interested persons to comment more dangerous activities. Under this Employee Protection was disestablished accurately on the amendments. The program, the Department has been through a reorganization effective cooperative has asked that the comment investigating and adjudicating cases for October 1, 1996. The Office of Inspector period be extended an additional forty- the past four and one half years. As part General will continue to investigate five (45) days to November 30, 1996, to of Secretary Hazel R. O’Leary’s policy of allegations of retaliation against contractor employees covered by Part allow more observation time to evaluate ‘‘zero tolerance for reprisal’’ against employees who raise workplace 708. the amendments. The cooperative stated concerns, the DOE invites members of Accordingly, the Department plans to that the amendments went into effect on the public, particularly those persons amend part 708 to enhance its August 10, 1996, and it has only with experience under this process (e.g., effectiveness and to address the observed the amendments for one claimants, contractors, attorneys), to reorganization of the contractor Federal order pool. recommend any regulatory changes that employee protection program. Although It should be noted that any might help to streamline the process the Department has consulted with finalization of the tentative partial and make it more responsive to the various stakeholders about this subject, decision, with or without modification, needs of both claimants and contractors. the Department hereby invites public may only be based on the factual record DATES: Comments are due on December input from any interested person who received in evidence at the oral hearing 24, 1996. thinks that part 708 should be revised on May 15–16, 1996. To the extent that ADDRESSES: Comments (5 copies) may and has suggestions for particular any comments will be based on be submitted to: William A. Lewis, Jr., amendments. It will be followed subsequent factual occurrences, the Director, Office of Employee Concerns, eventually by a notice of proposed Secretary would have to reopen the oral Department of Energy, 1000 rulemaking that will give interested hearing if he believed consideration of Independence Avenue, SW., members of the public an opportunity to such subsequent facts to be warranted. Washington, DC 20585, Att: Contractor comment on the Department’s formal proposal to amend part 708. Nonetheless, the Secretary welcomes Employee Protection NOI. full participation by all interested FOR FURTHER INFORMATION CONTACT: Issued in Washington, D.C., on October 11, persons in the rulemaking process. Jeffrey C. Crater, Office of the Under 1996. Thus, the comment period is further Secretary, Department of Energy, 1000 William A. Lewis, Jr., extended from October 16 to November Independence Avenue, SW, Director, Office of Employee Concerns. 30, 1996. Washington, DC 20585, 202–586–6479. [FR Doc. 96–27418 Filed 10–24–96; 8:45 am] This notice is issued pursuant to the SUPPLEMENTARY INFORMATION: Pursuant BILLING CODE 6450±01±P provisions of the Agricultural Marketing to the Atomic Energy Act of 1954 (Act) Agreement Act of 1937, as amended (7 [42 U.S.C. 2011 et seq.] and the Department of Energy Organization Act, DEPARTMENT OF TRANSPORTATION U.S.C. 601–674), and the applicable the Department of Energy (Department) rules of practice and procedure carries out numerous programs, Federal Aviation Administration governing the formulation of marketing including research, development, agreements and marketing orders (7 CFR 14 CFR Chapter I production, and environmental cleanup. Part 900). These programs are carried out by [Summary Notice No. PR±96±7] List of Subjects in 7 CFR Parts 1005, contractors under the supervision of the 1007, 1011, and 1046 Department at various Department- Petition for Rulemaking; Summary of owned and/or operated facilities around Petitions Received; Dispositions of Milk marketing orders. the United States. Petitions Issued Dated: October 18, 1996. As part of a comprehensive set of AGENCY: Federal Aviation health and safety policies, the Administration (FAA), DOT. Lon Hatamiya, Department has promulgated a ACTION: Notice of petitions for Administrator. regulation on contractor employee rulemaking received and of dispositions [FR Doc. 96–27458 Filed 10–24–96; 8:45 am] protection, which is codified at 10 CFR of prior petitions. BILLING CODE 3410±02±P part 708. This regulation, promulgated Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules 55231

SUMMARY: Pursuant to FAA’s rulemaking that such change would significantly and subsequent loss of control of the provisions governing the application, enhance aviation safety by reducing helicopter. processing, and disposition of petitions the risk of cargo planes colliding with DATES: Comments must be received by for rulemaking (14 CFR Part 11), this each other and with passenger aircraft December 24, 1996. notice contains a summary of certain operating in the same airspace. ADDRESSES: Submit comments in petitions requesting the initiation of Docket No.: 28712 triplicate to the Federal Aviation rulemaking procedures for the Petitioner: Independent Pilots Administration (FAA), Office of the amendment of specified provisions of Association Assistant Chief Counsel, Attention: the Federal Aviation Regulations and of Regulations Affected: 14 CFR 25.810 Rules Docket No. 96–SW–17–AD, 2601 denials or withdrawals of certain and 121.310 Meacham Blvd., Room 663, Fort Worth, petitions previously received. The Description of Rulechange Sought: To Texas 76137. Comments may be purpose of this notice is to improve the require automatically deployable exit inspected at this location between 9:00 public’s awareness of, and participation slides or their equivalent at the crew a.m. and 3:00 p.m., Monday through in, this aspect of FAA’s regulatory entry door for transport category Friday, except Federal holidays. activities. Neither publication of this airplanes manufactured for or flown The service information referenced in notice nor the inclusion or omission of in all-cargo operations, and to the proposed rule may be obtained from information in the summary is intended eliminate the acceptability of Bell Helicopter Textron, Inc., P.O. Box to affect the legal status of any petition providing only ropes at any 482, Fort Worth, Texas 76101. This or its final disposition. emergency exit. The petitioner feels information may be examined at the DATES: Comments on petitions received that such change would provide a FAA, Office of the Assistant Chief must identify the petition docket level of safety for cargo-only Counsel, 2601 Meacham Blvd., Room number involved and must be received flightcrew that is consistent with that 663, Fort Worth, Texas. available for passenger, December 24, 1996. FOR FURTHER INFORMATION CONTACT: Mr. supernumeraries, and flight crew on ADDRESSES: Send comments on any Charles Harrison, Federal Aviation passenger carrying aircraft. petition in triplicate to: Federal Administration, Southwest Region, Aviation Administration, Office of the [FR Doc. 96–27492 Filed 10–24–96; 8:45 am] Rotorcraft Certification Office, ASW– Chief Counsel, Attn: Rules Docket No. BILLING CODE 4910±13±M 170, Fort Worth, Texas 76193–0170, llll, 800 Independence Avenue, telephone (817) 222–5447, FAX (817) 222–5959. SW., Washington, DC 20591. Comments 14 CFR Part 39 may also be sent electronically to the SUPPLEMENTARY INFORMATION: following internet address: [Docket No. 96±SW±17±AD] nprmcmtsfaa.dot.gov. Comments Invited Airworthiness Directives; Bell The petition, any comments received, Interested persons are invited to Helicopter Textron, Inc. Model 412 and copy of any final disposition are participate in the making of the Helicopters filed in the assigned regulatory docket proposed rule by submitting such and are available for examination in the AGENCY: Federal Aviation written data, views, or arguments as Rules Docket (AGC–200), Room 915G, Administration, DOT. they may desire. Communications FAA Headquarters Building (FOB 10A), ACTION: Notice of proposed rulemaking should identify the Rules Docket 800 Independence Ave., SW., (NPRM). number and be submitted in triplicate to Washington, DC 20591; telephone (202) the address specified above. All 267–3132. SUMMARY: This document proposes the communications received on or before FOR FURTHER INFORMATION CONTACT: supersedure of an existing priority letter the closing date for comments, specified Fred Haynes, (202) 267–3939, or Marisa airworthiness directive (AD), applicable above, will be considered before taking Mullen, (202) 267–9681, Office of to certain Bell Helicopter Textron, Inc. action on the proposed rule. The Rulemaking (ARM–1), Federal Aviation Model 412 helicopters, that currently proposals contained in this notice may Administration, 800 Independence requires a daily inspection of certain be changed in light of the comments Avenue, SW, Washington, DC 20591. swashplate support assemblies. It also received. This notice is published pursuant to requires a reduction in VNE, and Comments are specifically invited on paragraphs (b) and (f) of § 11.27 of Part installation of appropriate airspeed the overall regulatory, economic, 11 of the Federal Aviation Regulations indicator markings and a placard. This environmental, and energy aspects of (14 CFR Part 11). action would require the same actions the proposed rule. All comments Issued in Washington, DC on October 22, required by the existing Priority Letter submitted will be available, both before 1996. AD, but would restrict the applicability and after the closing date for comments, Donald P. Byrne, to the Model 412 helicopters with a in the Rules Docket for examination by Assistant Chief Counsel for Regulations. certain steel main rotor control interested persons. A report swashplate support assembly (steel summarizing each FAA-public contact Petitions for Rulemaking swashplate support assembly) installed. concerned with the substance of this Docket No.: 28678 This AD also proposes to allow the proposal will be filed in the Rules Petitioner: Independent Pilots installation of an improved main rotor Docket. Association control swashplate assembly that Commenters wishing the FAA to Regulations Affected: 14 CFR 121.356 terminates the requirements of this AD. acknowledge receipt of their comments Description of Rulechange Sought: To This proposal is prompted by reported submitted in response to this notice require Traffic Alert and collision cracks and in-service failures of certain must submit a self-addressed, stamped Avoidance System II on all transport steel swashplate support assemblies. postcard on which the following category airplanes flown in all-cargo The actions specified by the proposed statement is made: ‘‘Comments to part 121 operations, not just those AD are intended to prevent failure of the Docket No. 96–SW–17–AD.’’ The airplanes with more than 30 steel swashplate support assembly that postcard will be date stamped and passenger seats. The petitioner feels could result in loss of main rotor control returned to the commenter. 55232 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules

Availability of NPRMs accomplished in accordance with ASB Authority: 49 USC 106(g), 40113, 44701. No. 412–92–61, dated May 14, 1992, Any person may obtain a copy of this § 39.13 [Amended] and ASB No. 412–92–57, Revision A, NPRM by submitting a request to the 2. Section 39.13 is amended by FAA, Office of the Assistant Chief dated January 30, 1992. The FAA estimates that 40 helicopters adding a new airworthiness directive Counsel, Attention: Rules Docket No. (AD), to read as follows: 96–SW–17–AD, 2601 Meacham Blvd., of U.S. registry would be affected by this Room 663, Fort Worth, Texas 76137. proposed AD, that it would take 20 Bell Helicopter Textron, Inc.: Docket No. 96– work hours per helicopter to accomplish SW–17–AD. Supersedes priority letter Discussion the proposed actions, and that the AD 92–03–13, issued January 31, 1992, Docket No. 92–ASW–31. On January 31, 1992, the FAA issued average labor rate is $60 per work hour. Applicability: Model 412 helicopters, with priority letter AD 92–03–13, to require, The aluminum swashplate support assembly, P/N 412–010–443–101 or steel main rotor control swashplate support before further flight and thereafter assembly (steel swashplate support before the first flight of each day, an –109 costs $4,526. The steel swashplate assembly), part number (P/N) 412–010–453– inspection of the forward and aft clevis support assembly, P/N 412–010–453– 101, installed, certificated in any category. areas of the steel swashplate support 105, costs $9,234. Based on these Note 1: This AD applies to each helicopter assembly, part number (P/N) 412–010– figures, the total cost impact of the identified in the preceding applicability 453–101. It also requires a reduction in proposed AD on U.S. operators is provision, regardless of whether it has been the maximum allowable airspeed to the estimated to be $417,360, if all the modified, altered, or repaired in the area lesser of 110 knots or VNE, and further swashplates in the fleet are replaced subject to the requirements of this AD. For requires the installation of appropriate with support assemblies, P/N 412–010– helicopters that have been modified, altered, airspeed indicator markings and a 453–105. or repaired so that the performance of the requirements of this AD is affected, the placard. That AD also mandates that if The regulations proposed herein would not have substantial direct effects owner/operator must use the authority a crack is found in the clevis areas of the provided in paragraph (e) to request approval steel swashplate support assembly, the on the States, on the relationship from the FAA. This approval may address steel swashplate support assembly must between the national government and either no action, if the current configuration be removed and replaced with an the States, or on the distribution of eliminates the unsafe condition, or different airworthy part. That action was power and responsibilities among the actions necessary to address the unsafe prompted by two reported in-service various levels of government. Therefore, condition described in this AD. Such a failures of a swashplate support in accordance with Executive Order request should include an assessment of the assembly. The requirements of that AD 12612, it is determined that this effect of the changed configuration on the unsafe condition addressed by this AD. In no are intended to prevent loss of main proposal would not have sufficient federalism implications to warrant the case does the presence of any modification, rotor control and subsequent loss of alteration, or repair remove any helicopter control of the helicopter. preparation of a Federalism Assessment. from the applicability of this AD. For the reasons discussed above, I Since the issuance of that AD, an Compliance: Required as indicated, unless improved steel swashplate support certify that this proposed regulation (1) accomplished previously. To prevent failure assembly, P/N 412–010–453–105, has is not a ‘‘significant regulatory action’’ of the steel swashplate support assembly that become available. Installation of the under Executive Order 12866; (2) is not could result in loss of main rotor control and improved steel swashplate support a ‘‘significant rule’’ under the DOT subsequent loss of control of the helicopter, assembly, P/N 412–010–453–105, or an Regulatory Policies and Procedures (44 accomplish the following: aluminum swashplate support FR 11034, February 26, 1979); and (3) if (a) Before further flight after the effective assembly, P/N 412–010–443–101 or promulgated, will not have a significant date of this AD, and thereafter, before the first flight of each day, visually inspect, with –109, terminates the requirements of economic impact, positive or negative, on a substantial number of small entities an inspection mirror and a bright light, the this AD. BHTI issued Alert Service forward and aft clevis areas of the steel Bulletin (ASB) No. 412–92–61, dated under the criteria of the Regulatory swashplate support assembly, part number May 14, 1992, to provide for installation Flexibility Act. A copy of the draft (P/N) 412–010–453–101, in accordance with of this improved steel swashplate regulatory evaluation prepared for this Bell Helicopter Textron, Inc. Alert Service support assembly. Additionally, some action is contained in the Rules Docket. Bulletin (ASB) 412–92–57, Revision A, dated editorial changes have been made to the A copy of it may be obtained by January 30, 1992. AD. contacting the Rules Docket at the (b) Before further flight after the effective Since an unsafe condition has been location provided under the caption date of this AD, install a red radial arc on ADDRESSES. each airspeed indicator to prohibit airspeeds identified that is likely to exist or above 110 knots. Near the pilot’s airspeed develop on other Bell Helicopter List of Subjects in 14 CFR Part 39 indicator, install a placard made of material Textron, Inc. Model 412 helicopters of that is not easily erased, disfigured, or the same type design, the proposed AD Air transportation, Aircraft, Aviation obscured that contains the following would supersede priority letter AD 92– safety, Safety. statement in lettering that is 0.2 inch 03–13, issued January 13, 1992, to The Proposed Amendment minimum in height: ‘‘VNE not to exceed 110 require a daily inspection of certain KIAS or VNE from the airspeed limitation steel main rotor control swashplate Accordingly, pursuant to the placard, whichever is less.’’ authority delegated to me by the support assemblies, a reduction in VNE, Note 2: ASB No. 412–92–58, dated January and installation of appropriate airspeed Administrator, the Federal Aviation 27, 1992, contains information on the markings and a placard. It also proposes Administration proposes to amend part airspeed limitation. an optional installation of an improved 39 of the Federal Aviation Regulations (c) If a crack is found, before further flight, steel main rotor control swashplate (14 CFR part 39) as follows: replace the steel swashplate support assembly, P/N 412–010–453–101, with an support assembly or an aluminum PART 39ÐAIRWORTHINESS airworthy part. swashplate support assembly, that when DIRECTIVES (d) Installation of an improved steel installed, constitutes a terminating swashplate support assembly, P/N 412–010– action for the requirements of this AD. 1. The authority citation for part 39 453–105, or aluminum swashplate support The actions would be required to be continues to read as follows: assembly, P/N 412–010–443–101 or -109, in Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules 55233 accordance with the Accomplishment AD are intended to prevent heat damage must submit a self-addressed, stamped Instructions of ASB 412–92–61, dated May of the fuel feed hose, which could lead postcard on which the following 14, 1992, constitutes a terminating action for to a possible fire/smoke hazard when statement is made: ‘‘Comments to the requirements of this AD, and the red failure of the hose assembly occurs and Docket Number 95–NM–142–AD.’’ The radial arc on each airspeed indicator and the consequent fuel mist or spray is emitted postcard will be date stamped and airspeed placard installed as a result of this AD may be removed. into the rear equipment bay. returned to the commenter. (e) An alternative method of compliance or DATES: Comments must be received by Availability of NPRMs an adjustment of the compliance time that November 15, 1996. Any person may obtain a copy of this provides an equivalent level of safety may be ADDRESSES: Submit comments in used if approved by the Manager, Rotorcraft triplicate to the Federal Aviation NPRM by submitting a request to the Certification Office. Operators shall submit Administration (FAA), Transport FAA, Transport Airplane Directorate, their requests through an FAA principal Airplane Directorate, ANM–103, ANM–103, Attention: Rules Docket No. maintenance inspector, who may concur or Attention: Rules Docket No. 95–NM– 95–NM–142–AD, 1601 Lind Avenue, comment and then send it to the Manager, SW., Renton, Washington 98055–4056. Rotorcraft Certification Office. 142–AD, 1601 Lind Avenue, SW., Note 3: Information concerning the Renton, Washington 98055–4056. Discussion existence of approved alternative methods of Comments may be inspected at this A proposal to amend part 39 of the compliance with this AD, if any, may be location between 9:00 a.m. and 3:00 Federal Aviation Regulations (14 CFR obtained from the Rotorcraft Certification p.m., Monday through Friday, except part 39) to add an airworthiness Office. Federal holidays. directive (AD), applicable to certain (f) Special flight permits may be issued in The service information referenced in Beech (Raytheon) Model BAe 125–800A accordance with sections 21.197 and 21.199 the proposed rule may be obtained from and Hawker 800 series airplanes, was of the Federal Aviation Regulations (14 CFR Raytheon Aircraft Company, Manager published as a notice of proposed 21.197 and 21.199) to operate the helicopter Service Engineering, Hawker Customer rulemaking (NPRM) in the Federal to a location where the requirements of this Support Department, P.O. Box 85, AD can be accomplished. Register on December 22, 1995 (60 FR Wichita, Kansas 67201–0085. This 66527). That NPRM would have Issued in Fort Worth, Texas, on October 17, information may be examined at the 1996. required a one-time detailed visual FAA, Transport Airplane Directorate, inspection to: Eric Bries, 1601 Lind Avenue, SW., Renton, 1. detect overheating or degradation of Acting Manager, Rotorcraft Directorate, Washington. Aircraft Certification Service. the hose assemblies; FOR FURTHER INFORMATION CONTACT: Tim 2. verify proper routing of the fuel feed [FR Doc. 96–27393 Filed 10–24–96; 8:45 am] Backman, Aerospace Engineer, hose assembly of the auxiliary power BILLING CODE 4910±13±U Standardization Branch, ANM–113, unit (APU); and FAA, Transport Airplane Directorate, 3. verify if adequate clearance (0.5 inch) 1601 Lind Avenue, SW., Renton, 14 CFR Part 39 exists between the hose assembly and Washington 98055–4056; telephone the left-hand mixer valve/main air [Docket No. 95±NM±142±AD] (206) 227–2797; fax (206) 227–1149. valve assemblies and associated hot RIN 2120±AA64 SUPPLEMENTARY INFORMATION: air ducting. The NPRM referenced Hawker Service Airworthiness Directives; Beech Comments Invited Bulletin SB.49–45, dated May 15, 1995, (Raytheon) Model BAe 125±800A and Interested persons are invited to as the source of service information Hawker 800 Series Airplanes participate in the making of the containing the procedures for proposed rule by submitting such accomplishing this inspection. AGENCY: Federal Aviation written data, views, or arguments as That NPRM was prompted by reports Administration, DOT. they may desire. Communications shall of heat damage to the fuel feed hose ACTION: Supplemental notice of identify the Rules Docket number and assembly of the APU due to contact proposed rulemaking; reopening of be submitted in triplicate to the address between the hose assembly and hot comment period. specified above. All communications surfaces. That condition, if not received on or before the closing date corrected, could lead to a possible fire/ SUMMARY: This document revises an for comments, specified above, will be smoke hazard when failure of the hose earlier proposed airworthiness directive considered before taking action on the assembly occurs and consequent fuel (AD), applicable to certain Beech proposed rule. The proposals contained mist or spray emitted into the rear (Raytheon) Model BAe 125–800A and in this notice may be changed in light equipment bay. Hawker 800 series airplanes, that would of the comments received. have required a detailed visual Comments are specifically invited on Actions Since Issuance of Previous inspection of the fuel feed hose the overall regulatory, economic, Proposal assemblies of the auxiliary power unit environmental, and energy aspects of Since the issuance of that NPRM, the (APU) to detect overheating, the proposed rule. All comments manufacturer has issued Hawker degradation, proper routing, and submitted will be available, both before Service Bulletin SB.49–47–25A825A, adequate clearance; and the correction and after the closing date for comments, dated August 1, 1995, which describes of any discrepancies found. That in the Rules Docket for examination by procedures for modification of the fuel proposal was prompted by reports of interested persons. A report feed hose of the APU. The modification heat damage to the fuel feed hose summarizing each FAA-public contact involves replacing the existing conduit assembly of the APU due to contact concerned with the substance of this made from vinyl, which can withstand between the hose assembly and hot proposal will be filed in the Rules operating temperatures of 80 °C, with a surfaces. This action revises the Docket. conduit made from convoluted PTFE, proposed rule by adding a requirement Commenters wishing the FAA to which can withstand temperatures of up to modify the fuel feed hose of the APU. acknowledge receipt of their comments to 240 °C. Accomplishment of the The actions specified by this proposed submitted in response to this notice modification will eliminate the need for 55234 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules the one-time visual inspection. The Regulatory Impact repaired so that the performance of the requirements of this AD is affected, the modification will improve the The regulations proposed herein protection of the conduit of the fuel feed owner/operator must request approval for an would not have substantial direct effects alternative method of compliance in hose from heat damage. on the States, on the relationship accordance with paragraph (d) of this AD. Explanation of New Requirements of between the national government and The request should include an assessment of Proposal the States, or on the distribution of the effect of the modification, alteration, or power and responsibilities among the repair on the unsafe condition addressed by The FAA finds that the one-time various levels of government. Therefore, this AD; and, if the unsafe condition has not been eliminated, the request should include visual inspection procedures, as in accordance with Executive Order specified in the previously issued specific proposed actions to address it. 12612, it is determined that this Compliance: Required as indicated, unless proposal, alone do not provide the proposal would not have sufficient accomplished previously. To prevent heat degree of safety assurance necessary to federalism implications to warrant the damage to the fuel feed hose assemblies of address to unsafe condition. The FAA preparation of a Federalism Assessment. the auxiliary power unit (APU), which could has determined that, in order to For the reasons discussed above, I lead to a possible fire/smoke hazard if failure adequately address the unsafe condition certify that this proposed regulation (1) of the hose assembly occurs and fuel mist or presented by the problems associated is not a ‘‘significant regulatory action’’ spar is consequently emitted into the rear with heat damage in the subject areas, equipment bay, accomplish the following: under Executive Order 12866; (2) is not (a) Within 75 days after the effective date the proposed rule must be revised to a ‘‘significant rule’’ under the DOT of this AD, perform a one-time detailed include a requirement to modify the fuel Regulatory Policies and Procedures (44 visual inspection to detect overheating or feed hose of the APU. The modification FR 11034, February 26, 1979); and (3) if degradation of the hose assemblies; to verify would be required to be accomplished promulgated, will not have a significant proper routing of fuel feed hose assembly of in accordance with Hawker Service economic impact, positive or negative, the auxiliary power unit (APU); and to verify Bulletin SB.49–47–25A825A, dated on a substantial number of small entities if adequate clearance (0.5 inch) exists August 1, 1995, described previously. between the hose assembly (outlet from the under the criteria of the Regulatory fuel pump box of the APU) and the left-hand Installation of this modification would Flexibility Act. A copy of the draft mixer valve/main air valve assemblies and preclude the need for the one-time regulatory evaluation prepared for this associated hot air ducting; in accordance visual inspection. action is contained in the Rules Docket. with Hawker Service Bulletin SB.49–45, Conclusion A copy of it may be obtained by dated May 15, 1995. contacting the Rules Docket at the (1) If any overheating or degradation is Since this change expands the scope location provided under the caption detected, prior to further flight, replace the hose assembly with a new assembly and ADDRESSES. of the originally proposed rule, the FAA ensure that proper clearance and routing has determined that it is necessary to List of Subjects in 14 CFR Part 39 exists, in accordance with the service reopen the comment period to provide bulletin. additional opportunity for public Air transportation, Aircraft, Aviation (2) If the clearance of the hose assembly is comment. safety, Safety. improperly routed, prior to further flight, re- The Proposed Amendment route the assembly maintaining proper Cost Impact clearance, in accordance with the service Accordingly, pursuant to the bulletin. The FAA estimates that 70 Beech authority delegated to me by the (3) If the clearance of the hose assembly is (Raytheon) Model BAe 125–800A and Administrator, the Federal Aviation inadequate and the hose assembly is properly Hawker 800 series airplanes of U.S. Administration proposes to amend part routed, prior to further flight, adjust the hose registry would be affected by this 39 of the Federal Aviation Regulations assembly to achieve the 0.5-inch clearance, proposed AD. in accordance with the service bulletin. (14 CFR part 39) as follows: It would take approximately 2 work (b) Prior to the accumulation of 200 flight hours after the effective date of this AD, hours per airplane to accomplish the PART 39ÐAIRWORTHINESS modify the fuel feed hose of the APU, in proposed inspection, at an average labor DIRECTIVES accordance with Hawker Service Bulletin rate of $60 per work hour. Based on 1. The authority citation for part 39 SB.49–47–25A825A, dated August 1, 1995. these figures, the cost impact of the (c) Accomplishment of the modification of inspection proposed by this AD on U.S. continues to read as follows: the fuel feed hose of the APU in accordance operators is estimated to be $8,400, or Authority: 49 U.S.C. 106(g), 40113, 44701. with Hawker Service Bulletin SB.49–47– $120 per airplane. 25A825A, dated August 1, 1995, constitutes § 39.13 [Amended] terminating action for the requirements of It would take approximately 4 work 2. Section 39.13 is amended by this AD. hours per airplane to accomplish the adding the following new airworthiness (d) An alternative method of compliance or proposed modification, at an average directive: adjustment of the compliance time that labor rate of $60 per work hour. provides an acceptable level of safety may be Beech Aircraft Company (Raytheon Aircraft used if approved by the Manager, Required parts would cost Company): Docket 95–NM–142–AD. approximately $218 per airplane. Based Standardization Branch, ANM–113, FAA, Applicability: Model BAe 125–800A on these figures, the cost impact of the Transport Airplane Directorate. Operators (including military variants C–29A and U– shall submit their requests through an proposed AD on U.S. operators is 125) and Hawker 800 series airplanes, appropriate FAA Principal Maintenance estimated to be $32,060, or $458 per constructor’s numbers 8091 and subsequent; Inspector, who may add comments and then airplane. equipped with Turbomach auxiliary power send it to the Manager, Standardization The cost impact figures discussed unit (APU) (Modification 259404B); Branch, ANM–113. above are based on assumptions that no certificated in any category. Note 2: Information concerning the Note 1: This AD applies to each airplane operator has yet accomplished any of existence of approved alternative methods of identified in the preceding applicability compliance with this AD, if any, may be the proposed requirements of this AD provision, regardless of whether it has been obtained from the Standardization Branch, action, and that no operator would modified, altered, or repaired in the area ANM–113. accomplish those actions in the future if subject to the requirements of this AD. For (e) Special flight permits may be issued in this AD were not adopted. airplanes that have been modified, altered, or accordance with sections 21.197 and 21.199 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules 55235 of the Federal Aviation Regulations (14 CFR public and other portions nonpublic, financial reports where an FCM is 21.197 and 21.199) to operate the airplane to and to eliminate the requirement that organized as a partnership.4 The no- a location where the requirements of this AD firms filing financial reports need to action letter provided relief to CBT can be accomplished. separately bind portions of such reports member firms that are registered as Issued in Renton, Washington, on October generally treated as nonpublic in order FCMs and organized as partnerships 18, 1996. for such portions of the reports to be with only a corporation or limited James V. Devany, accorded nonpublic treatment. liability company as a general partner Acting Manager, Transport Airplane DATES: Comments must be received on such that the FCM’s chief financial Directorate, Aircraft Certification Service. or before November 25, 1996. officer (or the individual who has these [FR Doc. 96–27394 Filed 10–24–96; 8:45 am] ADDRESSES: Comments on the proposed responsibilities) could sign the BILLING CODE 4910±13±U amendments should be sent to Jean A. attestation on Form 1–FR-FCM. Webb, Secretary of the Commission, However, the letter stated that in the Commodity Futures Trading case of an FCM organized as a COMMODITY FUTURES TRADING Commission, 1155 21st Street, N.W., partnership with another partnership as COMMISSION Washington, D.C. 20581. In addition, its general partner, the general partner of such other partnership must make the 17 CFR Parts 1 and 31 comments may be sent by facsimile transmission to facsimile number (202) attestation required by Rule 1.10(d)(4). 418–5221, or by electronic mail to The no-action letter also provided relief Financial Reports of Futures to CBT to permit it to administer its Commission Merchants, Introducing [email protected]. Reference should be made to ‘‘Attestation Amendments’’. financial filing rule, CBT Capital Rule Brokers and Leverage Transaction 311, in a similar manner.5 FOR FURTHER INFORMATION CONTACT: Merchants CBT’s request for relief stated that the Lawrence B. Patent, Associate Chief request was prompted by the fact that AGENCY: Commodity Futures Trading Counsel, or Lawrence T. Eckert, CBT was in the process of issuing PINs Commission. Attorney Adviser, Division of Trading to those individuals who are eligible to ACTION: Proposed Rules. and Markets, Commodity Futures provide the required attestations in Trading Commission, 1155 21st Street, SUMMARY: The Commodity Futures connection with CBT’s upcoming N.W., Washington D.C. 20581. Trading Commission (‘‘CFTC’’ or implementation of the electronic filing Telephone (202) 418–5450. ‘‘Commission’’) is proposing to amend of financial reports. Such filing is its Rule 1.10(d)(4), which requires that SUPPLEMENTARY INFORMATION: permitted by CBT Capital Rule 311. each Form 1–FR filed with the I. Background Subsequently, the Division issued Commission contain an oath or Advisory 12–96 to inform FCMs, IBIs affirmation attesting that, to the best Commission Rule 1.10 sets forth the and self-regulatory organizations knowledge and belief of the individual financial reporting requirements for (‘‘SROs’’) that they would be granted making such oath or affirmation, the futures commission merchants similar no-action treatment if they acted information contained therein is true (‘‘FCMs’’) and independent introducing in accordance with the Division’s letter and correct. The proposed rule brokers (‘‘IBIs’’).2 This rule requires to CBT.6 amendment would provide that, for the generally that FCMs file with the On May 28, 1996, the Commission purposes of making this attestation Commission financial reports on Form issued Advisory 28–96, to alert FCMs, when filing a financial report with the 1–FR–FCM each quarter and that IBIs IBs and SROs that in connection with Commission electronically, the use of a file financial reports on Form 1–FR–IB any SRO program for electronic filing of personal identification number (‘‘PIN’’) semiannually.3 Pursuant to paragraph financial reports approved by the would be deemed to be the equivalent (d)(4) of the rule, each Form 1–FR must Commission, and to the extent the SRO of a manual signature.1 The proposal include an attached oath or affirmation program does not require a manual also would amend Rule 1.10(c) to that, to the best knowledge or belief of signature for purposes of attestation, the account for the possibility that the individual making such oath or use of a PIN would be deemed to be the registrants may choose to file certain affirmation, the information contained equivalent of a manual signature for financial reports electronically using a in the Form 1–FR is true and correct. If purposes of attestation under Commission issued PIN rather than the applicant or registrant is a sole Commission Rule 1.10(d)(4).7 The filing such reports in paper form with proprietorship, partnership or Commission noted therein that it the regional office of the Commission corporation, the oath or affirmation planned to implement procedures that nearest the principal place of business must be made by the proprietor, a would permit firms filing electronically of the registrant. The proposal would general partner or by the chief executive with an SRO to submit certain financial add Rule 1.10(b)(2)(iii) to clarify that officer or chief financial officer, reports to the Commission via electronic certified financial reports may not be respectively. filed electronically. The Commission’s Division of 4 CFTC Interpretative Letter 96–21, [Current In addition, the Commission is Trading and Markets (‘‘Division’’) Transfer Binder] Comm. Fut. L. Rep. (CCH) ¶ 26,633 proposing to amend Rules 1.10(g) and issued a no-action letter to the Chicago (Feb. 29, 1996). 31.13(m) to clarify that certain portions Board of Trade (‘‘CBT’’) in February, 5 Commission Rule 1.52(a), 17 CFR 1.52(a)(1996), of the financial reports will be deemed 1996 concerning the attestation of requires each self-regulatory organization (‘‘SRO’’) to adopt and submit for Commission approval rules prescribing minimum financial and related 1 Commission Rule 1.10(h) permits registrants 2 Approximately two-thirds of introducing reporting requirements for member FCMs and IBs. that are also registered as securities broker-dealers brokers enter into a guarantee agreement with an Such requirements must be the same as, or more with the Securities and Exchange Commission to FCM and thus are not required to raise their own file a copy of their Financial and Operational regulatory capital or file financial reports. stringent than, those contained in Commission Combined Uniform Single Report (‘‘FOCUS’’) with 3 The Commission is currently proposing to Rules 1.10 and 1.17, 17 CFR 1.10 and 1.17 (1996). the Commission in lieu of Form 1–FR. The amend certain of its financial reporting 6 This was reprinted as CFTC Advisory 96–21 in amendments discussed herein are intended to apply requirements for FCMs and IBIs, including time [Current Transfer Binder] Comm. Fut. L. Rep. (CCH) equally to registrants who file Form 1–FR or FOCUS requirements for filing Form 1–FR. See 61 FR 7080 ¶ 26,640 (March 8, 1996). with the Commission. (Feb. 26, 1996). 7 [Current Transfer Binder] Comm. Fut. L. Rep. (CCH) ¶ 26,711 (May 28, 1996). 55236 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules transmission. The Commission electronic filing with the Commission FOIA request for a financial report that currently is developing these consistent with the procedure currently was filed with the Commission solely by procedures and intends to implement in use by SROs such as CBT and the electronic transmission by printing a them in the coming year. Chicago Mercantile Exchange (‘‘CME’’). paper copy of the responsive, public At the outset of the Commission’s Under these procedures, an FCM or IBI data and forwarding it to the requestor. program to permit firms to submit non- would be required to submit a PIN The data which the Commission certified financial reports electronically, request form to the Commission’s would print and forward to the the Commission will require that those Central Regional Office on company requestor would be the public portions firms which choose to file financial letterhead with a manual signature. The of a Form 1–FR. As clarified by the reports electronically continue to file a request must be signed by the proprietor proposed amendment to Rule 1.10(g), paper report with their appropriate if the registrant is a sole proprietorship, these are, for FCMs and IBIs, the regional office of the Commission as the by a general partner if the registrant is statement of financial condition and the official filing of such report. After a partnership 9 and by the chief financial statement of the computation of the obtaining experience with the electronic officer or chief executive officer if the minimum capital requirements, and, in filing system, the Commission registrant is a corporation. The addition, for FCMs only, the statements anticipates that it will permit registrants individual representing the registrant concerning segregation of customer to file non-certified financial reports must acknowledge that the use of the funds and the secured amount for solely by electronic means. Electronic PIN will be considered to be a substitute foreign futures and option customers. filing of certified financial reports will for his or her manual signature attesting Currently under Rule 1.10(g), the not be permitted. that, to the best knowledge and belief of Commission requires that the other portions of the Form 1–FR 10 be II. Proposed Rule Amendments that person, the information contained in the financial report is true, correct separately bound from the portions of A. Electronic Filing Issues and complete. A new PIN request form the form set forth in the preceding The Commission is proposing to would be required if the firm wished to sentence in order to be accorded amend its Rule 1.10(d)(4) such that the change the individual authorized to use nonpublic treatment. use of a PIN in filing a Form 1–FR a PIN to file the firm’s financial report. Through the proposed amendment to pursuant to Rule 1.10 would be deemed The Commission also is proposing to Rule 1.10(g), the Commission will to be the equivalent of a manual amend paragraph (c) of Rule 1.10 and reconfirm the current demarcation as to signature under the rule. Therefore, the add a Rule 1.10(b)(2)(iii). The which portions of the Form 1–FR are rule would make clear that the amendment to Rule 1.10(c) would make generally treated as public and transmission of a financial report to the clear that a registrant may file non- nonpublic and eliminate the need for Commission or an SRO under a PIN will certified financial reports via electronic firms to use a separate binding constitute a representation that the transmission using a Commission issued procedure to receive such treatment for person whose PIN is used in such PIN in accordance with instructions their reports, whether reports are filed transmission attests that, to the best issued by the Commission. New Rule in paper form or electronically. The knowledge and belief of that person, the 1.10(b)(2)(iii) would make clear that Commission believes that, in the context information contained in the financial registrants will continue to be required of financial reports submitted report is true, correct and complete.8 As to file their certified financial reports, electronically, it would be unduly many firms are already filing financial which must accompany the application cumbersome to require a procedure reports with their SRO via electronic for registration and be submitted as of similar to separate binding of paper reports. Further, whether or not a firm transmission in accordance with SRO each fiscal year end following chooses to file its reports in the future rules approved by the Commission and registration, in paper form. Advisory 28–96, this amendment will As noted above, the Commission electronically or in paper form, the simply serve to restate the would require at the outset of its Commission’s rules concerning the Commission’s position set forth in that electronic filing program that firms treatment of certain portions of Form 1– Advisory. In so doing, the amendment filing non-certified financial reports FR as public and others as nonpublic will make clear that a PIN may be used electronically continue to file a paper have been extant for almost 20 years and in place of a manual signature with report with the appropriate regional are quite well-known in the industry. The Commission intends to propose respect to non-certified reports filed office of the Commission. However, the to clarify, in a separate release, its rules with the Commission and permit the Commission contemplates that, under FOIA and the Government in the Commission to enforce the rule directly. following some experience with Sunshine Act (‘‘GINSA’’) in order to: (1) The Commission hopes that this electronic transmission of financial reaffirm that certain portions of the amendment will encourage and data, it may be permissible for firms to Form 1–FR are generally public and the facilitate the process of electronic filing submit non-certified financial reports to remainder are nonpublic; and (2) state of such reports with the Commission the Commission solely via electronic that it will no longer process petitions but notes that, while it encourages the transmission. for confidential treatment of the use of the electronic filing option, the generally public portions of a Form 1– amendments would not mandate B. Freedom of Information Act Issues FR. The proposed amendments to Rule electronic filing with the Commission. Currently, the Commission makes 11 As noted above, the Commission available only a paper copy of a firm’s 1.10(g) (1) and (2) are intended to currently is developing procedures that financial report in response to a request 10 These are the statements of income (loss), cash will allow it to accept non-certified for such report under the Freedom of flows, changes in ownership equity and changes in financial reports electronically. The Information Act (‘‘FOIA’’). Consistent liabilities subordinated to the claims of general Commission intends to adopt with this current practice, the creditors. Only the latter two statements are required to be filed with non-certified financial procedures for issuing PINs to facilitate Commission intends to respond to an reports and thus would generally be filed as part of a Form 1–FR submitted electronically. See Rule 8 Commission Rule 1.10(c) provides that financial 9 Similar signatures would be permitted, as 1.10(d)(1) (i) and (ii). reports must be filed with the Commission and the discussed above, for partnerships whose general 11 The Commission has proposed to remove and firm’s designated self-regulatory organization. partner is a non-natural person. reserve paragraph (g)(3) and to revise paragraph Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules 55237 complement these contemplated connection with their conducting or category, must be filed in paper form amendments of the FOIA and GINSA sponsoring any collection of and may not be filed electronically. rules and to eliminate a burden on firms information as defined by the PRA. * * * * * to bind separately certain portions of a While this proposed rule has no burden, Form 1–FR to assure nonpublic the group of rules (3038–0024) of which (c) Where to file reports. The reports treatment.12 this is a part has the following burden: provided for in this section will be Average Burden Hours Per Response: considered filed when received by the III. Related Matters 128. regional office of the Commission A. Regulatory Flexibility Act Number of Respondents: 3,148. nearest the principal place of business Frequency of Response: Quarterly, of the registrant (except that a registrant The Regulatory Flexibility Act Monthly or On Occasion. (‘‘RFA’’), 5 U.S.C. 601–611 (1988), under the jurisdiction of the Persons wishing to comment on the Commission’s Western Regional Office requires that agencies, in proposing information which would be required rules, consider the impact of those rules must file such reports with the by this proposed/amended rule should Southwestern Regional Office) and by on small businesses. The rules contact Jeff Hill, Office of Management the designated self-regulatory discussed herein will affect FCMs, and Budget, Room 3228, NEOB, organization, if any; and reports LTMs and IBIs. The Commission Washington, DC 20503 (202) 395–7340. required to be filed by this section by an already has established certain Copies of the information collection definitions of ‘‘small entities’’ to be used submission to OMB are available from applicant for registration will be by the Commission in evaluating the Gerald P. Smith, CFTC Clearance considered filed when received by the impact of its rules on such small entities Officer, 1155 21st Street, N.W., National Futures Association and by the 13 in accordance with the RFA. FCMs Washington, DC 20581, (202) 418–5160. regional office of the Commission and LTMs 14 have been determined not nearest the principal place of business to be small entities under the RFA. List of Subjects of the applicant (except that an With respect to IBIs, the Commission 17 CFR Part 1 applicant under the jurisdiction of the has stated that it is appropriate to Commission’s Western Regional Office Commodity futures, Consumer evaluate within the context of a must file such reports with the particular rule proposal whether some protection, Minimum financial and related reporting requirements. Southwestern Regional Office): or all IBIs should be considered to be Provided, however, That any report filed small entities and, if so, to analyze the 17 CFR Part 31 pursuant to paragraphs (b)(1) or (b)(4) of economic impact on such entities at that this section or § 1.12(b) which need not time.15 The proposed amendments Commodity futures, Consumer would not require any IBI to submit protection, Leverage transactions, be certified in accordance with § 1.16 financial reports electronically but Reporting and recordkeeping may be submitted to the Commission in would only govern the attestation of the requirements. electronic form using a Commission- In consideration of the foregoing, and completeness and accuracy of such assigned Personal Identification pursuant to the authority contained in reports so filed. Presumably, an IBI Number, and otherwise in accordance the Commodity Exchange Act, and in would only choose to file a financial with instructions issued by the particular, Sections 4f, 4g and 8a(5) report electronically if it were cost- Commission: And, Provided, further, thereof, 7 U.S.C. 6f, 6g and 12a(5), the effective to do so. These rule That information required of a registrant Commission hereby proposes to amend amendments as proposed should pursuant to paragraph (b)(4) of this Parts 1 and 31 of chapter I of title 17 of impose no additional burden or section need be furnished only to the the Code of Federal Regulations as requirements on an IBI and thus, if self-regulatory organization requesting adopted, would not have a significant follows: such information and the Commission, economic impact on a substantial PART 1ÐGENERAL REGULATIONS and that information required of an number of IBIs. Accordingly, pursuant UNDER THE COMMODITY EXCHANGE applicant pursuant to paragraph (b)(4) of to Rule 3(a) of the RFA, 5 U.S.C. 605(b), ACT this section need be furnished only to the Chairperson, on behalf of the the National Futures Association and Commission, certifies that these 1. The authority citation for Part 1 the Commission. proposed amendments will not have a continues to read as follows: (d) * * * significant economic impact on a Authority: 7 U.S.C. 1a, 2, 2a, 4, 4a, 6, 6a, substantial number of small entities. 6b, 6c, 6d, 6e, 6f, 6g, 6h, 6i, 6j, 6k, 6l, 6m, (4) Attached to each Form 1–FR filed 6n, 6m, 6o, 6p, 7, 7a, 7b, 8, 9, 12, 12a, 12c, pursuant to this section must be an oath B. Paperwork Reduction Act 13a, 13a–1, 16, 16a, 19, 21, 23 and 24. or affirmation that to the best knowledge The Paperwork Reduction Act of 1980 2. Section 1.10 is amended by adding and belief of the individual making such (PRA), 44 U.S.C. 3501 et seq., imposes paragraph (b)(2)(iii) and revising oath or affirmation the information certain requirements on federal agencies paragraphs (c), (d)(4), (g)(1) and (g)(2) to contained in the Form 1–FR is true and (including the Commission) in read as follows: correct. If the applicant or registrant is a sole proprietorship, then the oath or (g)(5) of Rule 1.10. 61 FR 7080, 7085. The proposed § 1.10 Financial reports of futures affirmation must be made by the amendments discussed herein would not interfere commission merchants and introducing proprietor; if a partnership, by a general with or require further amendment of those earlier brokers. proposals. partner; or if a corporation, by the chief 12 Although there are currently no registered * * * * * executive officer or chief financial leverage transaction merchants (‘‘LTMs’’), the (b) * * * Commission is also proposing to amend Rule (2) * * * officer. In the case of a Form 1–FR filed 31.13(m) which currently provides for a separate (iii) A Form 1–FR required to be via electronic transmission in binding procedure similar to that set forth in Rule certified by an independent public accordance with procedures established 1.10(g) with respect to LTMs submitting financial by the Commission, such transmission reports on Form 2–FR. accountant in accordance with § 1.16 13 47 FR 18618–18621 (April 30, 1982). which is filed by a futures commission must be accompanied by the 14 See 50 FR 102, 108 n.11 (Jan. 2, 1985). merchant, an introducing broker or an Commission-assigned Personal 15 See 48 FR 35248, 35275–78 (Aug. 3, 1983). applicant for registration in either Identification Number of the authorized 55238 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules signer and such Personal Identification of Information Act and the Government DEPARTMENT OF THE TREASURY Number will constitute and become a in the Sunshine Act and parts 145 and substitute for the manual signature of 147 of this chapter. 27 CFR Parts 252 and 290 the authorized signer for the purpose of * * * * * [Notice No. 842; Ref: Notice No. 835; 95R± making the oath or affirmation referred 046P] to in this paragraph. PART 31ÐLEVERAGE * * * * * TRANSACTIONS RIN 1512±AA98 and 1512±AB03 (g) Nonpublic treatment of reports. (1) Exportation of Alcoholic Beverages, The following portions of Forms 1–FR 3. The authority citation for Part 31 Denatured Alcohol, Tobacco Products filed pursuant to this section will be continues to read as follows: and Cigarette Papers and Tubes public: the statement of financial Authority: 7 U.S.C. 12a and 23. condition, the statement of the AGENCY: Bureau of Alcohol, Tobacco computation of the minimum capital 4. Section 31.13 is amended by and Firearms (ATF), Department of the requirements, the statements (to be filed revising paragraph (m) to read as Treasury. by a futures commission merchant only) follows: ACTION: Advance notice of proposed of segregation requirements and funds rulemaking; reopening of comment § 31.13 Financial reports of leverage in segregation for customers trading on period. U.S. commodity exchanges and for transaction merchants. customers’ dealer options accounts, and * * * * * SUMMARY: This document reopens the the statement (to be filed by a futures (m) The following portions of Form 2– comment period for Notice No. 835, an commission merchant only) of secured FR filed pursuant to this section will be advance notice of proposed rulemaking, amounts and funds held in separate public: The statement of financial published in the Federal Register on accounts for foreign futures and foreign August 9, 1996 concerning exportation condition, the computation of the options customers in accordance with of alcoholic beverages, denatured minimum capital requirements pursuant § 30.7 of this chapter. The other alcohol, tobacco products, and cigarette to § 31.9, the schedule of coverage financial statements (including the papers and tubes. ATF has received two statement of income (loss)), footnote requirements and cover provided, and requests to extend the comment period disclosures and schedules of Form 1– the schedule of segregation in order to provide sufficient time for all FR, trade secrets and certain other requirements and funds on deposit in interested parties to respond to the commercial or financial information on segregation. The other financial issues raised in the notice. statements (including the statement of such other statements and schedules DATES: Written comments must be will be treated as nonpublic for income (loss)), footnote disclosures and received on or before December 9, 1996. purposes of the Freedom of Information schedules of Form 2–FR, trade secrets ADDRESSES: Send written comments to: Act and the Government in the and certain other commercial or Chief, Wine, Beer and Spirits Sunshine Act and Parts 145 and 147 of financial information on such other Regulations Branch; Bureau of Alcohol, this chapter. statements and schedules, will be Tobacco and Firearms; P.O. Box 50221; (2) The following portions of copies of treated as nonpublic for purposes of the Washington, DC 20091–0221; ATTN: the Financial and Operational Freedom of Information Act and the Notice No. 835. Combined Uniform Single Report under Government in the Sunshine Act and FOR FURTHER INFORMATION CONTACT: the Securities Exchange Act of 1934, Parts 145 and 147 of this chapter. All Marjorie D. Ruhf, Wine, Beer and Spirits Part II or Part IIA filed pursuant to information on such other statements, paragraph (h) of this section, will be Regulations Branch, Bureau of Alcohol, footnote disclosures and schedules will, Tobacco and Firearms, 650 public: The statement of financial however, be available for official use by condition, the statement of the Massachusetts Avenue, NW., any official or employee of the United Washington, DC 20226 (202–927–8230). computation of the minimum capital States or any State, by any self- requirements, the statements (to be filed regulatory organization of which the SUPPLEMENTARY INFORMATION: by a futures commission merchant only) person filing such report is a member, of segregation requirements and funds Background by the National Futures Association in in segregation for customers trading on On August 9, 1996, ATF published an U.S. commodity exchanges and for the case of an applicant, and by any advance notice of proposed rulemaking customers’ dealer options accounts, and other person to whom the Commission in the Federal Register soliciting the statement (to be filed by a futures believes disclosure of such information comments from the public and industry commission merchant only) of secured is in the public interest. The on a proposal to revise and recodify the amounts and funds held in separate independent public accountant’s regulations pertaining to exportation of accounts for foreign futures and foreign opinion filed pursuant to this section alcoholic beverages, denatured alcohol, options customers in accordance with will be deemed to be public tobacco products, and cigarette papers § 30.7 of this chapter. The other information. and tubes. (Notice No. 835; 61 FR financial statements (including the * * * * * 41500). statement of income (loss)), footnote Issued in Washington, DC, on October 21, The comment period for Notice No. disclosures and schedules of the 1996 by the Commission. 835 was scheduled to close on October Financial and Operational Combined Jean A. Webb, 8, 1996. Prior to the close of the Uniform Single Report under the comment period ATF received a request Secretary of the Commission. Securities and Exchange Act of 1934, from a national trade association, the Part II or Part IIA, trade secrets and [FR Doc. 96–27415 Filed 10–24–96; 8:45 am] Presidents’ Forum of the Beverage certain other commercial or financial BILLING CODE 6351±01±P Alcohol Industry, to extend the information on such other statements comment period for sixty days. The and schedules will be treated as Presidents’ Forum stated that it needed nonpublic for purposes of the Freedom additional time to address the numerous Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules 55239 and complex issues raised in the DEPARTMENT OF LABOR Wage Determinations, Wage and Hour advance notice. A member of regulated Division, Employment Standards industry, Brown and Williamson Office of the Secretary Administration, U.S. Department of Tobacco Corporation, requested a two- Labor, Room S–3506, 200 Constitution 29 CFR Part 4 week extension, saying that they Avenue, NW., Washington, DC 20210; discovered during the preparation of RIN 1215±AA78 telephone (202) 219–8353. This is not a their written comments that several toll-free number. Service Contract Act; Labor Standards issues were more complicated than they SUPPLEMENTARY INFORMATION: originally assessed. In consideration of For Federal Service Contracts Survey of Occupational Employment the above, ATF finds that a reopening of AGENCY: Office of the Secretary, Labor. the comment period is warranted. Covered by the McNamara-O’Hara ACTION: Proposed rule; notice of Service Contract Act; Health and Disclosure publication of regulatory impact Welfare Benefit Level Impact Analysis analysis; request for comments. Copies of this notice, Notice No. 835, Survey Description and Findings and the written comments will be SUMMARY: By notice of proposed Background available for public inspection during rulemaking published in the Federal The McNamara-O’Hara Service normal business hours at: ATF Public Register on May 2, 1996 (61 FR 19770), Contract Act of 1965 (SCA) requires that Reading Room, Room 6480, 650 the Department of Labor (DOL or the Department) proposed alternative contracts over $2,500 (if the predecessor Massachusetts Avenue, NW, contract was not subject to a collective Washington, DC. approaches for procedures to establish minimum health and welfare benefits bargaining agreement) contain wage Drafting Information requirements in the regulations issued determinations issued by DOL that under the McNamara-O’Hara Service specify the minimum monetary wages The author of this document is Contract Act (SCA). As was explained in and fringe benefits that must be paid to Marjorie D. Ruhf, Wine, Beer and Spirits the proposed rule, it was not feasible to the various classes of workers who Regulations Branch, Bureau of Alcohol, publish a regulatory impact analysis for perform work on the service contract, Tobacco and Firearms. comment with the proposed rule due to based upon rates determined by DOL to be prevailing in the locality where the List of Subjects judicially imposed time constraints. In the meantime, the Department has work is to be performed. However, 27 CFR Part 252 developed data on the occupational mix because fringe benefit data are not of service contract employees in order to generally available on an occupation- Aircraft, Alcohol and alcoholic provide a basis for the impact analysis specific or locality basis, DOL has beverages, Armed Forces, Authority and to aid in the selection of the most issued fringe benefit determinations for delegations, (government agencies), appropriate methodology. The analysis health and welfare based on nationwide Beer, Claims, Excise taxes, Exports, has been completed and is now being data ever since SCA was enacted. Fishing vessels, Foreign Trade Zones, published for comment. Comments may Following a challenge by the Service Labeling, Liquors, Packaging and also be submitted on the various Employees International Union (SEIU) containers, Reporting and recordkeeping alternatives set forth previously for to the methodology utilized by DOL to requirements, Surety bonds, Vessels, comment. Comments on this document determine health and welfare benefits, Warehouses, Wine. will be reviewed together with the DOL’s Board of Service Contract comments submitted on the May 2, 1996 Appeals remanded the matter to the 27 CFR Part 290 proposed rule prior to promulgation of Wage and Hour Division to consider a final rule. alternative methodologies for Administrative practice and implementing the statutory objectives. DATES: Comments are due on or before procedure, Aircraft, Authority Accordingly, the Administrator of the November 25, 1996. delegations (government agencies), Wage and Hour Division, by Notice Claims, Cigarette papers and tubes, ADDRESSES: Submit written comments published in the Federal Register on Customs duties and inspection, Excise to Maria Echaveste, Administrator, May 2, 1996 (61 FR 19770), proposed for taxes, Exports, Foreign trade zones, Wage and Hour Division, Employment public comment various alternative Labeling, Packaging and containers, Standards Administration, U.S. methodologies. Penalties, Surety bonds, Vessels, Department of Labor, Room S–3502, 200 In the meantime, the Department has Warehouses. Constitution Avenue, NW., Washington, developed data to determine the DC 20210. Commenters who wish to occupational mix of service employees Authority and Issuance receive notification of receipt of engaged in the performance of SCA- comments are requested to include a This notice is issued under the covered contracts. Based on data self-addressed, stamped post card, or to authority in 26 U.S.C. 5301, 7805, and collected by the Federal Procurement submit them by certified mail, return 27 U.S.C. 205. Data System for Fiscal Year 1994, the receipt requested. As a convenience to Department has conducted a survey to Signed: October 18, 1996. commenters, comments may be obtain specific information on service John W. Magaw, transmitted by facsimile (‘‘FAX’’) contract employment by occupation Director. machine to (202) 219–5122 (this is not within SIC industry classifications. The [FR Doc. 96–27366 Filed 10–24–96; 8:45 am] a toll-free number). If transmitted by information collected provides a basis facsimile and a hard copy is also BILLING CODE 4810±31±P for the following estimates of the submitted by mail, please indicate on economic impact of the various the hard copy that it is a duplicate copy proposed alternatives. of the facsimile transmission. In an action filed by the SEIU in the FOR FURTHER INFORMATION CONTACT: U.S. District Court for the District of William Gross, Director, Division of Columbia, the court has set a deadline 55240 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules for publication of the final rule of FTEs by broad occupational group are TABLE 2.ÐFREQUENTLY LISTED OCCU- December 24, 1996. SEIU v. Reich, CA presented in Table 1, below. PATIONS WITHIN BROAD OCCUPA- No. 91–0605 (August 27, 1996). TIONAL GROUPSÐContinued Purpose and Process TABLE 1.ÐESTIMATE OF FULL-TIME EQUIVALENT POSITIONS BY BROAD Professional, Administrative Precision In the Fall of 1995, the Wage and CCUPATIONAL ROUP Technical, & Support & Production, O G Specialty Clerical Craft, Repair Hour Division of the Employment (13.4%) (17.5%) (32.0%) Standards Administration conducted a Per- survey of occupational employment Group title Number cent Computer Key Entry Tele- under the McNamara-O’Hara Service of Program- Operator. communi- total Contract Act (SCA). Primary objectives mer. cation Me- chanic. of the survey were to: (1) Assist in the Professional, Specialty, & 36,900 13.4 development of a process to determine Instructor ...... Computer Gen Mainte- Technical. Operator. nance prevailing health and welfare benefit Administrative Support/ 48,300 17.5 Worker. levels under the SCA; and (2) furnish Clerical. Medical Lab Word Proc- Maintenance data that may be useful in assessing the Precision Production, 88,200 32.0 Technician. essor. Electrician. costs of various health and welfare Craft, & Repair. Systems Ana- Accounting Maintenance benefit alternatives. Transportation & Material 11,200 4.1 lyst. Clerk. Carpenter. The survey population consisted of Moving. Drafter ...... Supply Tech- Maintenance almost 20,000 contracts, and includes Handlers, Cleaners, Help- 33,200 12.0 nician. Painter. ers, & Laborers. Switchboard Maintenance all contracts identified as SCA-covered Service Workers ...... 58,000 21.0 Op/Recep- Plumber. in the Federal Procurement Data System Total, All Groups ...... 275,800 100.0 tionist. (FPDS) automated data base. These ...... Heavy Equip contracts represented $20.5 billion in Mechanic. procurement actions during FY 1994. By far, the occupational group with ...... Heating, The sample, which was selected by the largest numbers of FTEs was Refrig, & contract value within industry group, Precision Production, Craft, and Repair AC Mechn. consisted of 7,084 contracts, awarded by occupations, representing almost one- ...... Welder. 129 Federal agencies, and administered third of total employment. The Service ...... Mach Mainte- nance Me- by 1,039 agency contracting offices. Worker group was next in order of chanic. Contracts represented by the sample significance, having over one-fifth of included 35 percent of the number of total employment. Three broad Transpor- Handlers/ contracts in the population, and 63 occupational groups each accounted for tation/Mate- Cleaners/ Service Work- percent of population contract value. Helpers/ La- close to 15 percent of the FTE total: rial Moving borers ers (21.0%) With the assistance of designated Administrative Support and Clerical (4.1%) (12.0%) Federal procurement agency Survey occupations, 17.5 percent; Professional, Coordinators, and procurement officers Specialty, and Technical occupations, Truck Driver Stock Clerk .... Nursing As- sistant. who were responsible for the contracts 13.4 percent; and Handlers, Cleaners, in the sample, 1,430 usable survey Heavy Laborer ...... Janitor. Helpers, and Laborers, 12.0 percent. The Equipment responses were received and processed. broad group with the fewest positions Operator. This represented a usable response rate was Transportation and Material Forestry Laborer Food Service of 20.2 percent. The usable response Moving occupations, 4.1 percent. The Equip Op- Ground Worker. contained 7.2 percent of all contracts in most frequently listed occupations, erator. Mainte- nance. the targeted population and 19.0 percent under each broad occupational group, of population contract value. Driver Mes- Housekeeping Guard. are listed in order of employment, in senger. Aide. For additional information on the Table 2, below. Tree Planter Court Security survey design, survey sample and Officer. population, the sampling technique TABLE 2.ÐFREQUENTLY LISTED OCCU- ...... Cook. utilized, use of the sample to estimate PATIONS WITHIN BROAD OCCUPA- ...... Dishwasher. the population, and the data collection TIONAL GROUPS process and response rate, see the Information by Industry. According to Technical Note, following the Impact Professional, Administrative Precision survey data, more than two-thirds of all Analysis. Technical, & Support & Production, the contract FTEs were located in five Specialty Clerical Craft, Repair broad industry groups: Engineering, Findings (13.4%) (17.5%) (32.0%) Accounting, Research, Management, Employment by Occupation. Based and Related Services; Business Services; Engineering General Clerk Electronic Health Services; Miscellaneous Repair upon the Wage and Hour Division Technician. Tech, survey of occupational employment Mainte- Services; and Electronic & Other under the SCA, there were 275,800 full- nance. Electrical Equipment & Components, time equivalent positions (FTEs) under Licensed Secretary ..... Aircraft Me- Except Computer Equipment. Specific the FPDS universe of contracts in FY Practical chanic. industries included under each of these 1994 . Utilizing survey data, estimated Nurse. groups are listed in Table 3, below. Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules 55241

TABLE 3.ÐFREQUENTLY LISTED INDUSTRIES WITHIN BROAD SIC INDUSTRY GROUPS

Engineering, Accounting, Research, Manage- ment, and Related Services Business Services Health Services

Engineering, Architectural, & Surveying Serv- Computer Programming, Data Processing, & Hospitals. ices. other Computer Related Services. Research, Development, & Testing Services/ Miscellaneous Business Services/Guard Serv- Doctor & Dentist Offices & Clinics. Laboratories. ices. Management & Public Relations Services/Base Services to Dwellings & other Buildings/Clean- Medical & Dental Laboratories. Maintenance. ing & Maintenance.

Electronic & other Electrical Equipment & Miscellaneous Repair Services Components, except Computer Equipment

Miscellaneous & Electrical Repair Shops ...... Communications Equipment. Electronic Components & Accessories. Miscellaneous Electrical Equipment & Sup- plies..

Also accounting for two percent or cost estimates have been developed for System of the General Services more of total FTEs were Eating and each of eight alternative methods for Administration. Where required, the Drinking Places, Miscellaneous determining health and welfare benefit number of full-time equivalent positions Services/Weather Forecasting, levels under the McNamara-O’Hara (FTEs) estimated through the use of Transportation Equipment, Special Service Contract Act. These alternatives survey data, less the estimate of FTEs Trade Contractors, and Forestry. were published for comment in the whose wages and benefits are Federal Register on May 2, 1996 (61 FR Health and Welfare Benefit Level determined by collective bargaining 19769). Impact Analysis agreements (CBAs), pursuant to Section The cost estimates provided apply to 4(c) of the SCA, were utilized in the Purpose and Process the almost 20,000 SCA-covered development of alternative cost Utilizing the survey data described contracts reported to be active in FY estimates. (See Table 4, below.) above, and other relevant information, 1994, by the Federal Procurement Data

TABLE 4.ÐESTIMATE OF FTES BY SCA HEALTH & WELFARE BENEFIT LEVEL

Contracts Employment Percent of Percent of Average Type* Number total FTEs total FTEs

Insurance ...... 16,129 80.7 94,048 34.1 5.8 Total Benefits ...... 2,858 14.3 117,215 42.5 41.0 4(c) ...... 999 5.0 64,537 23.4 64.6

All Types, Total ...... 19,986 100.0 275,800 100.0 13.8 * These levels are currently utilized for the issuance of SCA wage determinations. The ``Insurance'' level is based upon the cost of life, acci- dent, and health insurance for establishments employing less than 100 workers. The ``Total Benefits'' level is based upon the cost of insurance, retirement and savings, sick leave, other leave, and other benefits for establishments employing 100 or more workers. Assignment of health and welfare benefit level was based upon wage determination information provided by survey respondents.

Findings Alternative II–B: Issue a single benefit Alternative V–A: Issue two fringe rate adjusted to reflect the difference benefit levels—‘‘Insurance’’ and ‘‘Total The eight alternative methods being between the BLS ECI occupational Benefits’’—(see Table 5 note), based on considered to compute SCA health and universe and the actual mix of BLS ECI size-of-establishment data for welfare benefit levels are fully comparable occupations on SCA- all workers in private industry. Apply explained in 61 FR 19770, published covered contracts. these levels based upon the nature of May 2, 1996. Full understanding of the Alternative II–C: Issue two benefit the contract; i.e., routine contracts implications of the following impact levels, based on a combination of the receive the Insurance level and the Total occupational groupings: white collar analysis requires reference to that Benefits level is provided for large base document. However, a statement of each and production occupations. support contracts, solicitations based on alternative in summary follows: Alternative III: Issue a single benefit rate for each of four geographic regions OMB circular A–76, solicitations for Alternative I: Issue a single benefit based on ECI data for all workers in highly technical services typically level based upon ECI data for workers private industry. provided by large corporations, and in private industry. Alternative IV: Issue a single fringe other selected solicitations without Alternative II–A: Issue a single benefit benefit rate (as a percent of wages) based regard to size of contract. level for each of six major occupational on the relationship between the ECI all- Alternative V–B: Issue two fringe groupings based on ECI data for all private industry ‘‘total benefit’’ rate and benefit levels, using the BLS ECI all workers in each grouping in private the ECI all private industry average industry. wage rate. 55242 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules industry Total Benefits data for (1) Alternative V–A to $4,100.63 for universe. However, the data in the establishments with fewer than 100 Alternative II–A. This range of $549.18 system understates the size of the SCA- workers and (2) establishments with 100 is just 14.1 percent of the average cost covered universe. This is due to such or more workers. Apply these levels of all eight alternatives, $3,908.74. (See factors as exclusion of most contracts based upon the employment size of Table 5, below.) Similarly, the total non- under $25,000, exclusion of contracts of respective contracts. CBA estimated cost for all SCA-covered the U.S. Postal Service and the Air These alternatives appear to offer a contracts included in the FPDS data Force/Army Exchange System, and narrow range of annual health and base ranges from about $750 million (V– possible under-reporting of SCA- welfare benefit costs for FTEs whose A) to $866 million (II–A). As discussed covered contracts in the FPDS system, rates are not determined by collective in the Technical Note below, the FPDS as well as possible errors in bargaining agreement (CBA). The range system contains the best available data determinations as to whether contracts computed is from $3,551.45 for for determining the SCA-covered are covered by SCA.

TABLE 5.ÐESTIMATION OF ANNUAL COSTS PER FTE OF EIGHT ALTERNATIVE SCA HEALTH & WELFARE METHODS

Cost Per Alternative Rank* FTEÐ1995 data

I. Single Benefit/ECI/Private Industry ...... 4 $3,931.20 II±A. Single Benefit/Six Occupational Groups ...... 8 4,100.63 II±B. Single Benefit/ Adjusted to Employment Composition ...... 7 4,097.60 II±C. White Collar & Production Workers ...... 6 4,095.98 III. Single Rate/Four BLS Regions ...... 2 3,676.73 IV. Single Benefit Rate As A Percent of Wages ...... 3 3,872.67 V±A. Insurance & Total Benefits Rates/Based upon Size of Establishment/Applied by Nature of Contract ...... 1 3,551.45 V±B. Total Benefits Rates/Based upon Size of Establishment/Applied by Employment Size of Contract ...... 5 3,943.67 * Rank, 1 to 8, is from least to most costly. Alternative V±A is the current methodology. Current costs per FTE ($3,787.05) are based upon the use of Alternative V±A and 1994 ECI data. Note that cost differences between Alternatives II±A, II±B, and II±C, are due to rounding.

Based upon the use of survey data, determination of the alternatives which The Department lacks sufficient data Alternatives I, IV, and V–B, the first two should be selected, including in to be able to quantify the benefits to the utilizing single benefit ECI data, particular information regarding affected workers and to society of approximate the average alternative cost administrative and/or recordkeeping providing workers prevailing fringe per FTE of about $3,909. Alternatives burdens; economic and budgetary benefits, or any indirect effects on jobs, II–A, II–B, and II–C, each of which is impact from the point of view of service productivity, or the Federal deficit. The controlled by occupational criteria, contractors, service employees and Service Contract Act was enacted in appear to be higher cost options, at Federal procurement agencies; order to protect service employees from about $4,100. Alternatives V–A and III, transitional difficulties if the rule the practices of contractors who determined by size-of-establishment and departs from the current methodology; undercut prevailing wages and benefits regional data, are relatively lower cost the nature of SCA-covered contracts and in order to be the low bidder on service options, each falling below $3,700. Note the fringe benefit practices typical of contracts. These workers are especially that the relative costs by alternative may service contractors; and the effects on vulnerable since wages and benefits are change over time as FTE distribution by contracting activity and employment. frequently the predominant cost of industry and occupation changes. For Without input from the commenters service contracts. With regard to fringe example, if the distribution of FTEs by the Department was unable to include benefits in particular, the Department occupation were to change significantly, in this analysis a discussion of the believes that most contractors provide one would expect corresponding administrative costs to contractors and workers benefits only at the level changes in Alternative-II costs. to the Government of the various provided on the wage determination. As noted in the notice of proposed alternatives. Presumably, all alternatives Thus SCA permits workers to receive rule making, 61 FR 19770, each except Alternative V–A would involve fringe benefits—including in particular alternative offers certain advantages and the burden of changing fringe benefit health benefits—which might not disadvantages. The cost estimates programs because of increased or otherwise be provided because of the provided in Table 5 furnish additional decreased fringe benefit levels. Several pressure of being the low bidder on the information for use in considering how alternatives (II–A and –C, IV, and to Government contract. each alternative meets relevant lesser extent III) may require that A preliminary regulatory flexibility evaluation criteria, such as statistical employers either provide different analysis discussing the anticipated accuracy, enforceability, administrative fringe benefits to different employees in impact of the proposed rule on small feasibility for contractors and their work force or make up the businesses was also included in the contracting agencies, and conformance difference in cash. Because of this issue, notice of proposed rulemaking. In most with statutory requirements and intent. the Department also requested respects the impact on small businesses The notice of proposed rulemaking comments on the administrative will be the same as the impact on other (60 FR 19770), fully discusses the feasibility and recordkeeping burden of businesses, although it is anticipated advantages and disadvantages which the the average cost approach, which would that any administrative difficulty may Department of Labor currently perceives allow employers to average fringe be greater for smaller firms. As in the various alternatives. Comments benefits costs across the work force. discussed above, some alternatives were solicited on a number of issues to These issues will be addressed more appear to have greater administrative assist in preparing a final regulatory fully in the final rule, after review of the difficulty than others. It is anticipated impact analysis and in making a comments received. that any impact could be mitigated by Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules 55243 the statutory authority for SCA-covered with SCA-covered contracts are Tables 6 through 9 provide many of contractors to discharge their currently required to pay their the key statistics required to compute obligations to furnish prevailing fringe employees prevailing fringe benefits; cost estimates for the eight alternative benefits by furnishing any equivalent and (2) SCA contractors will continue to methodologies. Following these tables combinations of fringe benefits or by be reimbursed by the Federal are detailed presentations of each making equivalent or differential procurement agencies for fringe benefit methodology’s data requirements and payments in cash. Impact may also be expenditures. computations. minimized because (1) Such businesses

TABLE 6.ÐOCCUPATIONAL GROUP ECI TOTAL BENEFIT RATES & SCA FTE DISTRIBUTION

1995 ECI rates SCA FTE distribu- Occupational group Total tion (per- benefits Wage* cent)

Professional, Specialty, & Technical ...... $3.03 $20.65 13.4 Administrative Support/Clerical ...... 1.87 10.47 17.5 Precision Production/Craft/Repair ...... 2.71 14.72 32.0 Transportation & Material Moving ...... 2.09 11.42 4.1 Handlers/Cleaners/Helpers/ Laborers ...... 1.24 8.18 12.0 Service Workers ...... 0.65 6.35 21.0 * Provided for information only.

TABLE 7.ÐECI TOTAL BENEFITS TABLE 7.ÐECI TOTAL BENEFITS TABLE 8.ÐECI WAGE & SALARY RATES, 1995 RATES, 1995ÐContinued LEVELS*

All Private Industry ...... $1.89 Midwest ...... 1.83 Private Industry ...... $12.25 SCA Occupational Distribution* ...... 1.97 West ...... 1.84 SCA Weighted ...... 12.09 White Collar ...... 2.37 Estabs of 100 or more Workers ...... 2.42 Production Worker ...... 1.79 Estabs 1±99 Workers ...... 1.29 * Utilized in Alternative IV. Northeast ...... 2.30 * Rate weighted by FTEs in 6 broad occupa- South ...... 1.64 tional groups. Utilized in Alternative II±B.

TABLE 9.ÐSCA EXPENDITURES AND FTES BY REGION

Expenditures Percent of Estimate of (billions) total SCA FTEs *

Northeast ...... 2.0 9.9 20,919 South ...... 11.9 58.6 123,822 Midwest ...... 1.4 6.9 14,580 West ...... 5.0 24.6 51,980 * Excludes workers under CBAs. Source: FPDS universe data.

Alternative Data Requirements & Cost Other leave 0.05 Cost Computations Insurance ... 1.15 Computations × Retirement 0.52 Hours=2,080/ Cost per FTE=Hours Worked Benefit Rate × Alternative I: & savings. FTE. per Hour =2,080 1.89=$3,931.20 Single benefit level based upon ECI Other bene- 0.03 Alternative II–A data for workers in private industry. fits. 1.89 Single benefit level for each of six Data Requirements major occupational groups. 1995: Data Requirements Sick leave 0.14

ECI H&W BENEFIT LEVELS OF OCCUPATIONAL GROUP

Re- Sick Other In- tire Other Occupational group leave leave sur- & ben- Total * * ance sav- efits ings

Prof., spec., & tech...... N.P. N.P. 1.67 0.91 0.05 3.03 Adm. support/clerical ...... N.P. N.P. 1.22 0.42 0.02 1.87 Precision, prod./craft/repair ...... N.P. N.P. 1.67 0.82 0.06 2.71 Trans. & material moving ...... N.P. N.P. 1.31 0.65 0.01 2.09 Handlers, cleaners, & helpers ...... N.P. N.P. 0.83 0.35 0.01 1.24 55244 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules

ECI H&W BENEFIT LEVELS OF OCCUPATIONAL GROUPÐContinued

Re- Sick Other In- tire Other Occupational group leave leave sur- & ben- Total * * ance sav- efits ings

Service workers ...... N.P. N.P. 0.45 0.11 0.01 0.65 *Not publishable.

SURVEY DISTRIBUTION OF Sum=$866,463,937 Occupational FTE's H & W Product EMPLOYMENT Cost per FTE=Total Cost/ group rate 211,300=$4,100.63 Per- Handlers/clean- Occupa- cent Number Alternative II–B ers/helpers/ tional group of of FTEs laborers ...... 25,356 1.24 31,441 total Single benefit rate adjusted to Service workers 44,373 0.65 28,842 employment composition of covered Sum ...... 416,568 Professional 13.4 28,314 Hours = contracts. 2,080. 416,568 divided by 211,300=1.97 Administra- 17.5 36,978 Data Requirements tive. Cost per FTE=1.97×2080=$4,097.60 Precision .... 32.0 67,616 FTEs by Occupational Group: See II– Transpor- 4.1 8,663 A Data requirements. ECI H & W benefit Alternative II–C tation. levels by Occupational Group: See II–A Reconfigure II–A rates into two Handlers .... 12.0 25,356 data requirements. Service ...... 21.0 44,373 groups: white-collar and production Cost Computations occupation rates. Cost Computations Total cost=FTEs for each Data Requirements Cost per occupation= Occupational Group×Corresponding H & × × White Collar=Summation of FTEs Hours Occupation H&W Rate: W Rate; Sum and Divide by Total FTEs; Professional, Specialists, & Technical Prof., Specialty, & Tech.— Multiply Product by Total FTEs and Grouping and Administrative Support/ × × $28,314 2080 $3.03=$178,446,154 then by Hours. Clerical Grouping. Admin. Support & Clerical— × × Production=Summation of Precision, $36,978 2080 $1.87=$143,829,629 Occupational FTE's H & W Product Precision Prod./Craft & Repair— group rate Transportation, Handler, and Service $67,616×2080×$2.71=$381,137,869 Groupings. Prof., spec., & Transp. & Material Moving— Cost Computations × × technical ...... 28,314 3.03 85,791 $8,663 2080 $2.09=$37,659,794 Admin. support/ Handlers, Cleaners, Helpers & clerical ...... 36,978 1.87 69,149 For each combined group, obtain a Laborers— Precision prod/ weighted rate as in II–B; multiply each $25,356×2080×$1.24=$65,398,195 craft/rep...... 67,616 2.71 183,239 combination rate by the FTEs included Service Workers— Trans. & mate- and the hours worked; then sum the $44,373×2080×$0.65=$59,992,296 rial movers ... 8,663 2.09 18,106 costs for the two combination groups.

White collar FTEs H & W rate Product

Prof, Specialists And Technicians ...... 28,314 3.03 85,791 Admin. Support/Clerical ...... 36,978 1.87 69,149

Sum ...... 65,292 ...... 154,940

Combined Rate=154,940 divided by Cost=2.37x65,292x2080 = 65,292 = 2.37. 321,863,443.

Production worker FTEs H & W rate Product

Precision Prod./Craft/Rep ...... 67,616 2.71 183,239 Transportation And Material Movers ...... 8,663 2.09 18,106 Handlers/Cleaners/Helpers/ Laborers ...... 25,356 1.24 31,441 Service Workers ...... 44,373 0.65 28,842 Sum ...... 146,008 ...... 261,628

Combined Rate=261,628/146,008 = Total Cost=321,863,443+543,616,986 Note: Alternative II–C also could be 1.79. = 865,480,429. computed by weighting in accordance with the national incidence of the various Cost=1.79x146,008x2080 = Cost per FTE=865,480,429/211,300 = occupational groups. No cost data are 543,616,986. $4,095.98. provided for this option. Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules 55245

Alternative III DATA REQUIREMENTS DATA REQUIREMENTSÐContinued [FPDS Distribution of SCA±Covered Contract [FPDS Distribution of SCA±Covered Contract Single benefit rate for each of four Expenditures by Region *] Expenditures by Region *] Bureau of Labor Statistics regions. Percent Billion FTEs Percent Billion FTEs

Northeast ..... 9.9 $2.0 20,919 West ...... 24.6 5.0 51,980 South ...... 58.6 11.9 123,822 Total ...... 100.0 20.3 211,301 Midwest ...... 6.9 1.4 14,580 *Based upon FPDS universe data. H & W Benefit Levels by Region

Other Sick leave Other leave Insurance R & S benefits Total

Northeast ...... 0.19 0.07 1.39 0.62 0.03 2.30 South ...... 0.11 0.04 1.01 0.46 0.02 1.64 Midwest ...... 0.11 0.04 1.15 0.49 0.04 1.83 West ...... 0.15 0.04 1.11 0.51 0.03 1.84

Cost Computations West— Data Requirements 51,980x1.84x2080=198,937,856 Total Cost=For each Region, FTEs x H Single total benefits rate=$1.89 (See & W Rate x Hours, then Sum for Total Sum=776,893,270. Alternative I) Cost. Cost per FTE=776,893,270/ Northeast— 211,300=$3,676.73. ECI Ave. Wage & Salary for 20,919x2.30x2080=100,076,496. 1995=$12.25 South— Alternative IV ECI Ave. Wage & Salary weighted to 123,822x1.64x2080=422,381,606. SCA for 1995=$12.09 Midwest— Single fringe benefit rate as a percent 14,580x1.83x2080=55,497,312. of wages.

ECI AVERAGE WAGE WEIGHTED TO SCA OCCUPATIONS DISTRIBUTION

(2)ÐECI (3)ÐSCA (4)ÐProd- (1)ÐOccupational group rate FTE's uct (2)×(3)

Professional, specialty & technical ...... 20.65 28,314 584,684 Administrative support/clerical ...... 10.47 36,978 387,160 Precision production, craft & repair ...... 14.72 67,616 995,308 Transportation & material movers ...... 11.42 8,663 98,931 Handlers, cleaners, helpers, & laborers ...... 8.18 25,356 207,412 Service workers ...... 6.35 44,373 281,769 211,300 2,555,264

Average SCA Data Requirements =94,048 × 0.82 × 2080 ÷ =160,408,269 Wage=2,555,264 211,300=$12.09 Insurance level=Insurance for Total Benefit Cost = FTEs × Benefit Rate Total benefits level/Average wages establishments of 1–99 workers=0.82 × and salaries: 1.89÷12.25=15.4% Hours Total benefits=Summation of =117,215 × 2.42 × 2080 Insurance, Sick Leave, Other Leave, Cost Computations =590,013,424 Retirement and Savings, and Other Cost per Cost per FTE=(Hours×Average SCA Benefits for establishments of 100 FTE=(160,408,269+590,013,424)/ Wage) (15.4%) workers or more: 211,300 =(2080×12.09) (.154) Ins ...... 1.45 FTEs by National Health =$3,551.45 and Welfare Level: =$3,872.67 SL ...... 0.17 Note: For comparison purposes, 1995 data OL ...... 0.06 Insurance=94,048 are utilized. Actual Health and Welfare Note: This alternative may provide for R & S ... 0.69 benefit levels for FY 1996 continue to utilize application of the 15.4 percent to each OB ...... 0.05 Total Benefits=117,215 1994 ECI data. occupational group wage. However, for the 2.42 Comparable computations utilizing purpose of this cost analysis, the 15.4 percent Source: See Table 4. rates currently issued, based upon 1994 was applied to the all-occupational group ECI data: Cost Computations average wage. Insurance=94,048 × 0.90 × 2080 = Alternative V–A Cost: For each level, multiply 176,057,856 FTEs×Benefit Rate X Hours; then sum to Total Benefits=117,215 × 2.56 × 2080 ‘‘Insurance’’ and ‘‘Total Benefits’’ obtain total costs. = 624,146,432 levels based upon size-of-establishment Insurance Cost=FTEs × Benefit Rate × Cost per FTE=(176,057,856 + ECI data but applied according to the Hour 624,146,432)/211,300 ‘‘nature of the contract.’’ =$3,787.05 55246 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules

Alternative V–B the University of Tennessee, under Using Sample Data to Estimate the Total Benefit levels, based upon size contract to the Wage and Hour Division. Population of establishment data, applied by Sample and Population Population estimates were developed employment size of establishments. The most comprehensive universe of by computing the ratio of Full Time Data Requirements detailed information about contracts Equivalent positions (FTEs) by under the McNamara-O’Hara Service occupation to total contract value for TOTAL BENEFITS Contract Act is the Federal Procurement each SIC Major Group; population Data System (FPDS) operated by the estimates by occupation for all SICs were added together to compute Establish- Establish- General Services Administration. This ments of 1±99 ments of 100 automated system is routinely and occupational population estimates; and workers or population estimates for all occupations workers more continually updated by information provided by Federal procurement were added together to provide industry SL ...... 0.10 officers on the contracts they totals, and the all industry sum. OL ...... 0.03 $2.42 administer. While the FPDS represents Continuing the above example, Ins...... 0.82 a rich source of statistical information, assume that six usable responses to the R&S ...... 0.33 it is recognized that this data base is not survey were received in SIC 01. Further OB ...... 0.01 all-inclusive. For example, it does not $1.29 assume that the employment data contain data from the U.S. Postal provided on the completed Service, the Air Force/Army Exchange FTEs for contracts not subject to questionnaires revealed FTEs in six Service, and most contracts under occupations. To obtain population Section 4(c) collective bargaining $25,000. Therefore, since the Impact agreements, 1–99 workers and 100 estimates for employment in Analysis is based upon a sample drawn Occupation #1 for SIC 01, the total workers or more: from the FPDS population, estimates • employment reported on the six Distribution of employment for made only represent the covered known 4(c) contracts by establishment questionnaires—8—is divided by the contracts included in the FPDS, and total contract value for the six contracts size—1–99: 13.6%; 100 & over: 86.4%. should not be considered as • Obtain distribution of employment represented ($10,000,000). The resulting representing the universe of all covered ratio—0.0000008—is then multiplied by for 4(c) contracts by establishment size contracts. For this reason, the focus of by multiplying the above percents by the total contract value of all contracts the Impact Analysis is on the relative in SIC 01 in the FPDS population— 64,537. differences among costs likely to be • $100,000,000. The product of this Subtract 4(c) employment for each generated by each alternative listed. It establishment category from the multiplication—80—is the population should be noted that although contracts estimate for Occupation #1, SIC 01. Like corresponding employment total. for which the required wages and fringe 100 & over: 169,084¥55,760=113,324 calculations for the other five benefits were determined by collective occupations found in SIC 01 would be 1–99: 106,746¥8,777=97,969 bargaining agreements in accordance completed to permit the estimation of Compute percent distribution of non- with Section 4(c) of the SCA were the remaining population employment 4(c) contracts by establishment category: included in the universe and survey to in SIC 01. Once these calculations are 100 & over: 113,324—53.6% determine contract employment, these completed for all SICs and occupations, 1–99: 97,969—46.4% contracts were excluded from the cost employment totals by occupation, Total: 211,293—100.0% computations. Since fringe benefits on industry, and total employment may be these contracts are not determined on Cost Computations obtained. the basis of prevailing fringe benefits, Cost = For each size group, FTEs × the cost of these contracts is not affected Note that the survey data were Corresponding Benefit Rate × Hours by the methodology selected. collected by occupational groupings and Sum two size group totals: definitions contained in the Service 100 & over: Sample Selection Contract Act Directory Of Occupations, 113,324×2.42×2080=570,427,686 × × Sample selection was proportional a resource tool utilized in the issuance 1–99: 97,969 1.29 2080=262,870,421 and systematic, by two-digit Standard of Service Contract Act wage Cost per FTE=(579,427,686 + Industrial Classification (SIC) Major determinations, and generally familiar 262,870,421)/211,300 Group. For example, assume that out of to contractors with covered contracts. =$3,943.67 $20 billion in covered contracts, total For those contractors not familiar with Technical Note contract value in SIC 01 was $100 the Directory’s standard job titles and million. A sample ratio of 0.005 definitions, copies were made available. Survey Design (100,000,000/20,000,000,000) is Once the survey data were received and Design of the survey benefited from computed for SIC 01. If we further verified, the occupational entries were guidance provided by representatives of assume that the survey sample within reclassified into the six Census groups the U.S. Army, the Bureau of Labor the FPDS data base includes a total of for which health and welfare benefit Statistics, the Office of Federal 7,000 covered contracts, then 7,000 X information is available from the Bureau Procurement Policy, and the Federal 0.005 or 35 would be the number of of Labor Statistics. FTEs represent the Procurement Data System. In addition, a contracts selected for SIC 01. To number of annual full-time equivalents pilot test of the survey instruments and randomly select the 35 contracts, first, budgeted to the contract in FY 1994 procedures was conducted with the the total number of FPDS contracts in from the obligated funds for each assistance of the General Services SIC 01—further assumed to be 105—are occupation listed. Since FTEs represent Administration and the U.S. Air Force. arranged sequentially from most to least 2080 work hours per year, and sample Design of the survey’s proportionate, costly. One of the first three contracts is data were collected and population systematic sampling, mailing of the selected by chance, and then every third estimates developed on this basis, and survey materials, and data collection contract (105/35) is systematically cost estimates developed reflect this and processing were accomplished by selected. definition. Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules 55247

Data Collection and Response Rate Document Preparation: This document holidays. Each requester may receive was prepared under the direction and control one free copy of the proposed Collection of survey data was through of Maria Echaveste, Administrator, Wage and a network of Federal Procurement amendment by contacting OSM’s Hour Division, Employment Standards Lexington Field Office. Executives and Federal agency Data Administration, U.S. Department of Labor. Collection Coordinators designated for William J. Kovacic, Director, Lexington this survey. Survey introductory List of Subjects in 29 CFR Part 4 Field Office, Office of Surface Mining materials were transmitted to the Administrative practice and Reclamation and Enforcement, 2675 Federal Procurement Executives in procedures, Employee benefit plans, Regency Road, Lexington, Kentucky, September 1995. In October, all Data Government contracts, Investigations, 40503. Telephone: (606) 233–2896. Collection Coordinators were provided Labor, Law enforcement, Minimum Department of Surface Mining with a comprehensive package of survey wages, Penalties, Recordkeeping Reclamation, 2 Hudson Hollow orientation materials. Later in October, requirements, Reporting requirements, Complex, Frankfort, Kentucky 40601. and early November, agency Wages. Telephone: (502) 564–6940. procurement offices responsible for Signed in Washington, DC, on this 21st day FOR FURTHER INFORMATION CONTACT: contracts selected for the sample were of October, 1996. William J. Kovacic, Field Office provided with survey questionnaires Maria Echaveste, Director, Lexington Field Office, Telephone: (606) 233–2896. and materials. From December through Administrator, Wage and Hour Division. March, Data Collection Coordinators [FR Doc. 96–27402 Filed 10–24–96; 8:45 am] SUPPLEMENTARY INFORMATION: were provided with their agency response rates and the list of contracts BILLING CODE 4510±27±P I. Background on the Kentucky for which data were not yet received; an Program additional mailing was made to the On May 18, 1982, the Secretary of the DEPARTMENT OF THE INTERIOR Federal Procurement Executives; copies Interior conditionally approved the of the Service Contract Act Directory Of Office of Surface Mining Reclamation Kentucky program. Background Occupations were provided on request; and Enforcement information on the Kentucky program, and data review and follow-up with including the Secretary’s findings, the submitting offices were carried-out. 30 CFR Part 917 disposition of comments, and the The survey usable response rate—20.2 conditions of approval can be found in percent—varied somewhat by industry [KY±208±FOR] the May 18, 1982, Federal Register (47 and Federal agency. In general the Kentucky Regulatory Program FR 21404). Subsequent actions highest response rates, weighted by concerning conditions of approval and value, were for those industries that AGENCY: Office of Surface Mining program amendments can be found at account for the majority of covered Reclamation and Enforcement (OSM), 30 CFR 917.11, 917.15, 197.16, and employment. For example, for the four Interior. 917.17. industries that account for over two- ACTION: Proposed rules; reopening of II. Description of the Proposed thirds of population contract value (SICs comment period. 87, 73, 37, and 89), the sample contracts Amendment represented in the responses were SUMMARY: OSM is reopening the public By letter dated July 19, 1994 valued at over $3.4 billion, or 39.7 comment period on a proposed (Administrative Record No. KY–1304), percent of the total value in the sample amendment to the Kentucky permanent Kentucky submitted a proposed for those industries, and averaged over regulatory program (hereinafter referred amendment to its program pursuant to $850 million per SIC (and not falling to as the ‘‘Kentucky program’’) under SMCRA at its own initiative. The below $303 million). The responses the Surface Mining Control and proposed amendments were announced therefore appear to be similar to the Reclamation Act of 1977 (SMCRA). The in the August 9, 1994, Federal Register FPDS data in the universe by industry, proposed amendment consists of (59 FR 40503). By letter dated January providing a measure of external validity revisions to sections of the Kentucky 11, 1995 (Administrative Record No. that appears to limit the potential for Administrative Regulations (KAR) KY–1331), Kentucky resubmitted a bias of the estimates obtained from the dealing with the assessment of civil proposed amendment that completed its sample data. For this reason it is penalties. The amendment is intended regulation promulgation process. OSM believed that the responses received to revise the Kentucky program to be reopened the public comment period in follow the general industry framework consistent with the corresponding the February 17, 1995, Federal Register and represent the best picture the Federal regulations. (60 FR 9314). By letter dated March 2, Department was able to obtain of DATES: Written comments must be 1995 (Administrative Record KY–1347), employment in the various industries received by 4:00 p.m., [E.D.T.] Kentucky submitted additional that make up the SCA universe. The November 12, 1996. revisions to the proposed amendment process whereby FTE/contract value ADDRESSES: Written comments and pertaining civil penalty assessment and ratios (by occupational group within requests to speak at the hearing should revegetation. Based on the revised industry group), once established, are be mailed or hand delivered to William information, OSM reopened the applied to the population (not the J. Kovacic, Field Office Director, at the comment period in the April 17, 1995, sample) to estimate FTE totals (as address listed below. Federal Register (60 FR 19193). During explained more fully in ‘‘Using Sample Copies of the Kentucky program, the its review of the proposed revisions, Data to Estimate the Population’’, proposed amendment, a listing of any OSM noted that Kentucky did not above), is another factor that would tend scheduled public hearings, and all submit the January 6, 1995, ‘‘Procedures to limit the potential for bias caused by written comments received in response for Assessment of Civil Penalties’’ the low response rate. However, the low to this document will be available for incorporated by reference in the March response rate does not allow for a public review at the addresses listed 2, 1995, submission. Because the reasonable measure of internal validity below during normal business hours, document was not made part of the to be assigned to the sample data. Monday through Friday, excluding administrative record, it was not subject 55248 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules to public comment. OSM is, therefore, IV. Procedural Determinations existing requirements previously reopening the comment period at this promulgated by OSM will be Executive Order 12866 time. implemented by the State. In making the This rule is exempted from review by ‘‘Procedures for Assessment of Civil determination as to whether this rule the Office of Management and Budget Penalties’’ replaces the June 15, 1994, would have a significant economic (OMB) under Executive Order 12866 version and includes a general impact, the Department relied upon the (Regulatory Planning and Review). description of the assessment process, data and assumptions for the an explanation of the assessment Executive Order 12988 counterpart Federal regulations. factors, the assessment mechanism, and The Department of the Interior has Unfunded Mandates the application of the assessment factors conducted the reviews required by This rule will not impose a cost of to specific violations. Specific changes section 2 of Executive Order 12988 include the following. Chapter I: at $100 million or more in any given year (Civil Justice Reform) and has on any governmental entity or the section B(1), the provision that a penalty determined that, to the extent allowed private sector. may be assessed if the violation is by law, this rule meets the applicable noncorrectable is deleted. At section standards of subsections (a) and (b) of List of Subjects in 30 CFR Part 917 D(1), the language is revised to require that section. However, these standards Intergovernmental relations, Surface that the penalty for a cessation order are not applicable to the actual language mining, Underground mining. issued for failure to abate be assessed of State regulatory programs and pursuant to 405 KAR 7:092, section program amendments since each such Dated: October 16, 1996. 13(2). At section D(2), the language is program is drafted and promulgated by Allen D. Klein, revised to require that the penalty for an a specific State, not by OSM. Under Regional Director, Appalachian Regional imminent danger cessation order be sections 503 and 505 of SMCRA (30 Coordinating Center. issued pursuant to 405 KAR 7:092 U.S.C. 1253 and 1255) and 30 CFR [FR Doc. 96–27404 Filed 10–24–96; 8:45 am] section 13(1). The assessment shall be 730.11, 732.15, and 732.17(h)(10), BILLING CODE 4310±05±M based on the four criteria in 405 KAR decisions on proposed State regulatory 7:095 section 3. Additional penalties programs and program amendments shall be assessed in the event a failure submitted by the States must be based to abate cessation order is issued. At solely on a determination of whether the DEPARTMENT OF TRANSPORTATION section D(3), the language is revised to submittal is consistent with SMCRA and Coast Guard require that the penalty for an illegal its implementing Federal regulations mining cessation order be assessed and whether the other requirements of 33 CFR Part 166 pursuant to 405 KAR 7:092 section 30 CFR Parts 730, 731, and 732 have 13(3). Chapter IV: at section B(5)b, the been met. ‘‘Topsoil Affected’’ damage point chart [CGD 93±044] is revised. National Environmental Policy Act Port Access Routes off the Coast of No environmental impact statement is California III. Public Comment Procedures required for this rule since section In accordance with the provisions of 702(d) of SMCRA (30 U.S.C. 1292(d)) AGENCY: Coast Guard, DOT. provides that agency decisions on 30 CFR 732.17(h), OSM is seeking ACTION: Notice of study results. comments on whether the proposed proposed State regulatory program amendment satisfies the applicable provisions do not constitute major SUMMARY: The Coast Guard is publishing program approval criteria of 30 CFR Federal actions within the meaning of the results of a port access route study 732.15. Specifically, OSM is seeking section 102(2)(C) of the National which evaluated the need for vessel comments on the revision to the State’s Environmental Policy Act (42 U.S.C. routing measures in the approaches to regulation that was submitted on July 4332(2)(C)). California ports. The study concluded 19, 1994 (Administration Record No. Paperwork Reduction Act that the southern approach lanes of the KY–1304), with the subsequent existing traffic separation scheme (TSS) This rule does not contain revisions and additions as noted above. off San Francisco should be shifted information collection requirements that Comments should address whether the seven miles seaward; the existing TSS require approval by OMB under the proposed amendment satisfies the in the Santa Barbara Channel should be Paperwork Reduction Act (44 U.S.C. applicable program approval criteria of extended from Point Conception to 3507 et seq.). 30 CFR 732.15. If the amendment is Point Arguello; and a precautionary area deemed adequate, it will become part of Regulatory Flexibility Act should be established at the northwest the Kentucky program. The Department of the Interior has end of the Santa Barbara Channel TSS. The remaining TSS approach lanes, Written Comments determined that this rule will not have a significant economic impact on a precautionary areas, areas to be avoided, Written comments should be specific, substantial number of small entities and the shipping safety fairways within pertain only to the issues proposed in under the Regulatory Flexibility Act (5 the studied area should remain as this rulemaking, and include U.S.C. 601 et seq.). The State submittal presently configured. No navigational explanations in support of the which is the subject of this rule is based need for additional offshore routing commenter’s recommendations. upon counterpart Federal regulations for measures was identified. Comments received after the time which an economic analysis was FOR FURTHER INFORMATION CONTACT: indicated under DATES or at locations prepared and certification made that CDR Chip Sharpe, Project Officer, other than the Appalachian Regional such regulations would not have a Eleventh Coast Guard District at (510) Coordinating Center will not necessarily significant economic effect upon a 437–2975 or Margie G. Hegy. Project be considered in the final rulemaking or substantial number of small entities. Manager, Coast Guard Headquarters at included in the Administrative Record. Accordingly, this rule will ensure that (202) 267–0415 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules 55249

SUPPLEMENTARY INFORMATION A shipping safety fairway is a lane or and the Eleventh Coast Guard District’s The Study corridor in which no fixed structures, collection of vessel position information either temporary or permanent, are during law enforcement patrols The Coast Guard has concluded its permitted. Shipping safety fairways are (‘‘Operation Crystal Ball’’). port access route study to review and routing measures which provide safe The Coast Guard’s Vessel Traffic analyze the vessel routing measures in port access routes for vessels where the Service (VTS) in San Francisco recorded the approaches to California ports and primary risk to vessels is collision with the number of vessels transiting the within the offshore California national offshore structures. Vessel use of three approaches to the TSS when marine sanctuaries. The study was shipping safety fairways is voluntary entering and leaving the ports in San announced in a notice published in the and the direction of traffic flow within Francisco Bay in 1994. Federal Register on August 24, 1993 (58 a shipping safety fairway may be In addition to Coast Guard efforts, the FR 44634). recommended. Western States Petroleum Association’s The study consisted of two parts: (1) (WSPA) 1992 report, ‘‘Tanker and Barge a port access route study to evaluate the Existing Routing Measures Movements Along the California Coast’’ need for vessel routing measures; and The TSS off San Francisco consists of provided general information regarding (2) a joint study with the National three approaches, a main ship channel, vessel transit routes. Crowley Marine Oceanic and Atmospheric and a precautionary area with a Services, Inc. and Pacific Gas and Administration (NOAA) mandated by separation zone in the center. The Electric Company also provided the National Marine Sanctuaries northern approach consists of north- information on their vessel transits. Program Amendments Act of 1992 (Pub. westbound and south-eastbound traffic Vessel density data were obtained L. 102–587) (NMSPA Act of 1992) to lanes and a separation zone. The from the U.S. Army Corps of Engineers’ determine what, if any, vessel southern approach consists of publications ‘‘Waterborne Commerce of regulations are needed to protect northbound and southbound traffic the United States,’’ and ‘‘Pacific Region resources in the Monterey Bay National lanes and a separation zone. The Freight Traffic Tables’’ for calendar Marine Sanctuary. This notice publishes western approach, consists of south- years 1990–1992. Lastly, the California only the results of the port access route westbound and north-eastbound traffic Coastal Commission made several local part of the study. The results of the lanes and a separation zone. The main area reports available for review. second part of the study will be ship channel consists of eastbound and The Center for Marine Conservation’s contained in a report to Congress as westbound traffic lanes, and a ‘‘Safe Passage: Preventing Oil Spills in required by the NMSPA Act of 1992. precautionary area with a separation Our Marine Sanctuaries’’ and ‘‘Unsafe The Coast Guard will announce the zone in the center. Havens: The Threat to California’s completion of that report in a separate The TSS in the Santa Barbara Channel Marine Sanctuaries From Vessel Federal Register notice. consists of north-westbound and south- Traffic’’ provided environmental A number of vessel routing measures, eastbound traffic lanes and a separation information and recommendations for i.e., traffic separation schemes (TSSs), zone. The south-eastbound traffic lanes vessel traffic measures. CMC’s precautionary areas (PA), areas to be link the Santa Barbara Channel TSS to recommendations were also addressed avoided (ATBA), and a shipping safety the western approach of the Los by the Council of American Master fairway (SSF), currently exist to mitigate Angeles/Long Beach TSS. Mariners, San Francisco Chapter navigation safety problems for vessels The Los Angeles/Long Beach TSS (CAMMSF) and WSPA. California’s entering or departing the entrances to consists of western and southern Office of Oil Spill Protection and San Francisco Bay, Santa Barbara approaches and a precautionary area. Response (OSPR) completed a statewide Channel, and the ports of Los Angeles The western approach consists of coastal protection review which focused and Long Beach. northbound and southbound traffic on the risk to California’s coastline and A traffic separation scheme is an lanes and a separation zone. The the overall state of response internationally recognized routing southern approach consists of preparedness. measure intended to minimize the risk southbound and northbound traffic of collision by separating vessels into lanes and a separation zone. The two Public Comments separate, opposing lanes of traffic. approaches converge into a Over 400 written comments were Vessel use of a TSS is voluntary; precautionary area immediately offshore received in response to the notice of however, vessels operating in or near an from the port complex. study. Of these comments, IMO approved TSS are subject to Rule A shipping safety fairway provides approximately one-third focused 10 of the International Regulations for unobstructed vessel access to Port exclusively on sanctuary issues not Preventing Collisions at Sea, 1972 (72 Hueneme. related to vessel routing. These COLREGS). comments will be discussed in the Study Data A precautionary area is a routing report to Congress on ‘‘Regulating measure comprising an area within The Coast Guard reviewed studies Vessel Traffic in Monterey Bay National defined limits where ships must and data collected both in-house and by Marine Sanctuary’’. navigate with particular caution. other organizations on vessel traffic Several comments addressed user Direction of traffic flow may be patterns and density. Coast Guard fees, increased fines for violations and recommended with a precautionary sources included: The Coast Guard’s spills, and increased regulation of area. ‘‘Evaluation of Oil Tanker Routing’’ vessels and vessel traffic. These An area to be avoided is a voluntary (Tanker Free Zone Study) report to comments did not address the specific routing measure comprising an area Congress mandated by the Oil Pollution routing of vessels between ports and are within defined limits in which either Act of 1990 (OPA 90); the draft report not discussed. navigation is particularly hazardous or to Congress on ‘‘Regulating Vessel Public comments frequently it is exceptionally important to avoid Traffic in the Monterey Bay National recommended additional regulation of casualties. All ships, or certain classes Marine Sanctuary’’ prepared by the vessels and the routing of tankers, or all of ships, may be advised to avoid the Coast Guard and the National Oceanic vessels, from 10 to 60 miles offshore. area. Atmospheric Administration (NOAA); These comments expressed the belief 55250 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules that keeping vessels further offshore recommendations made by the Center approaches to one would cause a would provide more time for response for Marine Conservation (CMC) in its convergence zone out of VTS and pilot in the event of an oil spill. These ‘‘Safe Passage: Preventing Oil Spills in coverage, increasing the risk of collision comments also suggested that greater Our Marine Sanctuaries’’ report. CMC’s in the offshore area, as well as in the distances offshore naturally improved significant navigational TSS itself because traffic from three navigational safety. However, the recommendations include: (1) approaches would be in one approach. comments contained no specific establishing an ATBA along the (3) Mandatory VTS Participation recommendations for increased northern and central California coast; (2) navigational safety or spill prevention. reconfiguring the TSS in the approaches The recommendation regarding to San Francisco Bay to contain only mandatory participation in VTS San Vessel Regulation one set of lanes approaching the bay Francisco is no longer relevant as this There currently exists an extensive from the southwest and extending requirement has been in place since body of regulation governing the seaward of the Farallon Islands; (3) 1994 (59 FR 36324). operation of tankers and other making VTS San Francisco mandatory; (4) Expansion of VTS commercial vessels. These regulations (4) extending VTS authority and area of include licensing of vessel operators responsibility to include the entire area The comments regarding expansion of and vessel crews, equipment carriage of the California national marine VTS authority and area of responsibility and training requirements, vessel sanctuaries; and, (5) requiring to include the entire areas of the response plans, and numerous operating transponders and automated dependent California national marine sanctuaries requirements. The Coast Guard inspects surveillance shipboard equipment are not persuasive. VTS expansion into vessels to ensure compliance and has (ADSSE) on all large commercial these open ocean areas will not initiated a Port State Control Program to vessels. significantly increase navigational safety target their inspection efforts on high Through advocating resource due to lower traffic densities and the risk vessels, often those under foreign protection, the CMC report does not amount of sea room in which to flag. address the international, statutory, and navigate, when compared with port In addition, the Coast Guard’s economic ramifications of their approaches. Prevention Through People (PTP) comments, or the impact on navigation One suggested alternative to program focuses on the human element, safety. These are discussed below. expanded VTS coverage was for which has been found to be the cause commercial vessels to record their (1) Coastal ATBA of 80 percent of vessel casualties. In positioning data during transit, which PTP, industry and the Coast Guard An ATBA, encompassing the northern could then be inspected to ensure establish cooperative relationships to and central California coast, is compliance with vessel routing identify and implement effective human inappropriate because transit through measures. Another suggested alternative element programs which address: (1) these areas is necessary to access ports was the real-time reporting of vessel management’s commitment to safe between San Francisco and Port positioning information at strategically operations; (2) external factors in the Hueneme. Such an ATBA would, in placed waypoints along common routes. work environment that influence effect, shut off access to major ports These suggestions may have merit and worker’s capabilities, judgment, and such as San Francisco. It would also the Coast Guard will continue to effectiveness; (3) behavior influenced by increase navigation risk by consider various vessel reporting factors such as stress, attitude, concentrating vessels along the outer systems. boundary of an ATBA because vessels knowledge, awareness, health and (5) Transponder-Based Technology experience; and, (4) the application of would not be expected to transit further new technology with human capability off the coast than required by ATBA Transponders and ADSSE are useful and limitations in mind. boundaries. navigational tools and international The existing regulations are adequate, performance standards for these (2) Reducing traffic lanes in San technologies are currently under and no additional regulations are Francisco TSS needed at this time. development by the International Reconfiguring the San Francisco TSS Maritime Organization (IMO). Once Offshore Routing from three approaches to one approach developed, we anticipate the The coastwise transit between would also increase risk of collision. transponders will be used, not only for California ports is not navigationally Such a reconfiguration would create a reporting, but for collision avoidance as difficult or hazardous. The areas that do convergence zone approximately 50 well. Absent the international involve significant navigational risk, the miles offshore, in open ocean, and performance standards applicable to all port approaches, have numerous beyond VTS and shore station radar vessels, foreign and domestic, and effective waterways management range. The existing scheme is within the absent a compelling navigation need to measures, i.e. VTS, TSS, pilotage, and coverage of VTS San Francisco, as well track vessels during the low risk regulated navigation areas (RNA) in as the San Francisco Bar Pilots. This coastwise transit, it is premature to place. Simply defining an outer limit or system provides several layers of mandate any transponder-based minimum offshore distance that vessels monitoring and radar coverage, and technology. must transit, as was often suggested by forms a natural boundary before vessels Summary the comments, would increase collision make the more difficult transit into the risk by reducing the water area available bay. In addition, vessel speeds are The public comments and for transit and artificially constricting controlled naturally in the recommendations illustrate an ever the conventional coastwise traffic precautionary area as vessels must slow growing concern for the protection of streams. to embark or disembark their pilot. the environment and the natural Vessel density data obtained by VTS resources of the California coastline. CMC Recommendations San Francisco shows a relatively even There exists a wide divergence of Over fifty percent of the public distribution of vessel traffic between the opinion: public, industry, comments supported the three approaches. Reducing these three environmental, and government on Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules 55251 what, if any, additional action is from shore without crowding the Conclusion and Recommendations necessary or warranted to mitigate both western approach. Centering the The transit data support the Coast real and perceived risks to the California southern approach between shore and Guard’s decision not to implement marine resources. the western approach would strike a additional routing measures along Findings reasonable balance between reducing California’s coastline. Traffic lanes are the risk of grounding and the risk of established to facilitate port access. Offshore routing for Coastwise Transit collision. Establishing traffic lanes parallel to the In light of the data, the existing body In a typical coastwise transit inbound coast would not facilitate port access of operating requirements, the for the San Francisco Bay via the and would compress vessels of different requirements imposed on tankers as a southern approach lanes, a vessel would types, sizes, and speeds into a confined result of OPA 90, state of California pass within four nautical miles of Point area where the risk of collision would initiatives such as the requirement for Montara and within seven nautical increase significantly. Present tug escorts, and the existing waterways miles of Pigeon Point. Shifting the International Regulations for Prevention management measures in the major port southern approach lanes to the west of Collisions at Sea are sufficient to approaches, the Coast Guard finds that would encourage vessels to transit regulate offshore vessel traffic and the coastwise transit does not present further offshore when entering or ensure safe passage between vessels. significant risk to navigation safety, and departing San Francisco, increase the The study data does, however, does not warrant new offshore vessel minimum transit distance off Point support the following recommended routing measures. Montara by six nautical mile to ten changes to existing routing measures. In 1992, nearly 9000 tanker, cargo and nautical miles. barge vessels called on California’s San Francisco TSS major ports, with 90 percent of these The northern and western TSS (1) That the southern approach lanes vessels calling on the ports of San approaches to San Francisco meet the of the TSS off San Francisco be shifted Francisco Bay and Los Angeles/Long traffic routing needs between Pt. Reyes seven miles seaward as follows: Beach. It is important to note that VTS and Cordell Bank, and near the and VTIS systems are already in place Farallones, respectively. Therefore, the Part II: Southern Approach in these two ports. Other commercial Coast Guard is not recommending any (a) A separation zone bounded by a interests, such as fishing vessels and changes to these two approaches. line connecting the following passenger carriers, were not included in Santa Barbara Channel TSS geographical positions: the data. Information collected from a variety The current configuration of the Latitude Longitude of sources shows that the distances northwestern end of the TSS in the vessels transit offshore, especially 37°39.10′ N ...... 122°40.40′ W Santa Barbara Channel encourages 37°27.00′ N ...... 122°40.40′ W between the major ports of Los Angeles/ vessels to transit close to the offshore ° ′ ° ′ Long Beach and San Francisco Bay, are 37 27.00 N ...... 122 43.00 W platforms of Hidalgo, Harvest, and 37°39.10′ N ...... 122°43.00′ W widely varied. Of the 2,837 crude oil Hermosa, as they round Point tanker, petroleum product tanker, and Conception. In addition, west bound (b) A traffic lane for northbound barge trips along the California coast vessels leaving the scheme are put into traffic between the separation zone and during 1992, over 82 percent occurred at crossing situations with vessels entering a line connecting the following least 25 miles off the coast. the lanes from the north. The Western States Petroleum geographical positions: Association (WSPA) has coordinated an Extending the TSS eighteen miles Latitude Longitude agreement between 10 shipping westward would increase the distance companies to remain at least 50 miles vessels transit from the platforms and 37°39.30′ N ...... 122°39.10′ W from shore when transiting from Alaska Point Conception, and encourage greater 37°27.00′ N ...... 122°39.10′ W to California. Of the two major barge offshore distances for coastwise transits, companies which operate off the coast, thereby decreasing the risk of allision (c) A traffic lane for southbound one operates 50 miles offshore, while and grounding. traffic between the separation zone and the other remains 8–10 miles from Adding a precautionary area at the a line connecting the following shore. northwest end of the TSS would add geographical positions: San Francisco TSS order and predictability to the crossing traffic streams, thereby decreasing Latitude Longitude Vessel transit data gathered by the collision risk. Vessel Traffic Service Center (VTS) in 37°27.00′ N ...... 122°44.30′ W San Francisco in 1994, showed a fairly Los Angeles/Long Beach TSS 37°39.40′ N ...... 122°44.30′ W even distribution of traffic amongst the TSS approaches. The northern approach Vessel transit data gathered by the Santa Barbara Channel TSS Vessel Traffic Information System lanes accommodated 38 percent of the (1) That the TSS in the Santa Barbara (VTIS) in Los Angeles/Long Beach for traffic, followed by the southern (35 Channel be extended from Point 1994 also showed a fairly even percent) and western (27 percent) Conception to Point Arguello as follows: approaches, respectively. These data distribution of traffic using the two (a) A separation zone bounded by a strongly support the need for three approach lanes. Vessels transiting the line connecting the following approaches to San Francisco Bay. north and west routes rely on the geographical positions: However, the current configuration of northern TSS (in the Santa Barbara the southern approach lanes of the San Channel) and its exit at Point Latitude Longitude Francisco TSS does not make the best Conception. Comments did not suggest use of available water. any changes to the TSS, nor did the 34°20.90′ N ...... 120°30.10′ W Rotating the southern approach study data suggest that changes were 34°18.90′ N ...... 120°30.90′ W seaward would increase transit distance needed. 34°25.70′ N ...... 120°51.75′ W 55252 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules

Latitude Longitude the recommended changes to the practices Congress intended to regulate existing routing measures, and take in passing the Act. 34°23.75′ N ...... 120°52.45′ W necessary action at IMO. The purpose of this meeting is for Dated: October 15, 1996. EPA to present and explain the draft (b) A traffic lane for westbound traffic J.C. Card, rulemaking options the Agency is between the separation zone and a line currently considering. The intent is to connecting the following geographical Rear Admiral, U.S. Coast Guard, Chief, Marine Safety and Environmental Protection. allow parties outside the government to positions: begin as early in the process as possible, [FR Doc. 96–27486 Filed 10–24–96; 8:45 am] to formulate its thoughts on the Latitude Longitude BILLING CODE 4910±14±M proposal in order to allow time for 34°21.80′ N ...... 120°29.90′ W interested parties to fully develop 34°26.60′ N ...... 120°51.45′ W comments to be completed during the ENVIRONMENTAL PROTECTION comment period. The Agency believes (c) A traffic lane for eastbound traffic AGENCY that the issues involved in this project between the separation zone and a line are complex and difficult enough that connecting the following geographical 40 CFR Chapter I this early introduction to the Agency’s positions: direction will benefit the regulated [FRL±5640±6] community by allowing early discussion Latitude Longitude among interested parties and will Definition of Solid Waste and benefit the Agency by resulting in more 34°18.00′ N ...... 120°31.10′ W Hazardous Waste Recycling; Notice of fully formulated reactions to the ° ′ ° ′ 34 22.80 N ...... 120 52.70 W Public Meeting proposal in comments. EPA will answer clarifying questions. Time may be (d) A precautionary area be AGENCY: Environmental Protection limited, however, depending on the established, bounded to the west by the Agency. number of participants and questions. arc of a circle of radius four miles ACTION: Notice of meeting. EPA anticipates publishing the centered upon the following proposed rulemaking in Spring of 1997. geographical positions: SUMMARY: The Environmental Protection Agency (EPA) will hold a public Because the Agency believes that a full Latitude Longitude meeting on November 19, 1996 to make dialog among the members of the information available on a project regulated community is critical to 34°25.80′ N ...... 120°56.50′ W underway to revise the RCRA receiving the best comment possible, and connecting the following geographical regulations governing hazardous waste EPA plans to allow a 90 day comment position: period for proposal and to hold public ° ′ ° ′ recycling. Under the authority of the 34 22.80 N ...... 120 52.70 W Resource Conservation and Recovery meetings during the comment period to 34°26.60′ N ...... 120°51.45′ W Act (RCRA), the Environmental discuss the proposal in detail. Written materials will be handed out at the The precautionary area be bounded to Protection Agency (EPA) has promulgated regulations governing meeting. These materials will not be the east by a line connecting the available prior to the meeting. following geographical positions: management of hazardous waste. Parts of these regulations govern hazardous DATES: The Public meeting will be held Latitude Longitude waste recycling. Specifically, the on November 19, 1996 from 8:30 am to portion of the regulations known as the 12:30 pm. ° ′ ° ′ 34 22.80 N ...... 120 52.70 W Definition of Solid Waste (DSW) (40 ADDRESSES: The public meeting will be ° ′ ° ′ 34 26.60 N ...... 120 51.45 W CFR 261.2) specifies whether hazardous held at the Airport Hilton, 2399 materials that are recycled are more Jefferson Davis Highway, Arlington In addition to the recommended ‘‘waste-like’’ (i.e., solid wastes) and thus Virginia, 22202, 703 418–6800. changes to the San Francisco and Santa subject to RCRA regulation, or whether FOR FURTHER INFORMATION CONTACT: Barbara Channel TSS’s, nautical charts such materials are more ‘‘product-like’’ For general information, contact the depicting the San Francisco TSS should and not subject to regulation. Other RCRA Hotline at 800 424–9346 or TDD be amended to conform with approved parts of the regulations set forth 800 553–7672 (hearing impaired). In the IMO descriptions as follows: requirements for regulating hazardous Washington, DC, metropolitan area, call (1) Rename the Main Approach TSS waste recycling (40 CFR 261.6, Part 703 412–9810 or TDD 703 412–3323. segment as the Western Approach; 266). The current hazardous waste Dated: October 17, 1996. (2) Redesignate the separation zone in recycling regulations were first the center of the circular precautionary promulgated on January 4, 1985 (50 FR Michael Shapiro, area as an ATBA; and 614). Director, Office of Solid Waste. (3) Define the eastern boundary of the EPA is working on a rulemaking to [FR Doc. 96–27469 Filed 10–25–96; 8:45 am] precautionary area by a line connecting modify the current federal hazardous BILLING CODE 6560±50±P±M the following geographic positions: waste recycling scheme to meet two Latitude Longitude goals: develop a clearer, simpler regulatory system for hazardous waste 40 CFR Parts 51 and 52 37°42.70′ N ...... 122°34.60′ W recycling that adequately protects [AD-FRL±5641±2] 37°45.90′ N ...... 122°38.00′ W human health and the environment; and ° ′ ° ′ 37 50.30 N ...... 122 38.00 W to remove disincentives to the safe Prevention of Significant Deterioration Datum: NAD 83. recycling of hazardous waste. The (PSD) and Nonattainment New Source intended result of this project is a Review (NSR) The Coast Guard will publish a notice simpler RCRA program, where of proposed rulemaking in the Federal definitions and requirements more AGENCY: Environmental Protection Register to solicit public comment on precisely capture the materials and Agency (EPA). Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules 55253

ACTION: Proposed rulemaking; at the EPA’s Air Docket (6102), Room This rulemaking action is being taken Reopening of comment period. M–1500, 401 M Street, SW., under section 110 of the Clean Air Act. Washington, DC 20460. A reasonable fee DATES: Comments must be received on SUMMARY: The EPA is hereby extending may be charged for copying. or before November 25, 1996. by 45 days, the closing date of the public comment period regarding EPA’s Dated: October 18, 1996. ADDRESSES: Comments may be mailed to proposed rulemaking, known as the John S. Seitz, David L. Arnold, Chief, Ozone and NSR Reform Rulemaking, published on Director, Office of Air Quality Planning and Mobile Sources Section, Mailcode July 23, 1996 at 61 FR 38249. The Standards. 3AT21, U.S. Environmental Protection original comment period was to close on [FR Doc. 96–27471 Filed 10–24–96; 8:45 am] Agency, Region III, 841 Chestnut October 21, 1996. The new closing date BILLING CODE 6560±50±P Building, Philadelphia, Pennsylvania will be December 5, 1996. The NSR 19107. Copies of the documents relevant Reform rulemaking proposes to revise to this action are available for public regulations for the approval and 40 CFR Part 52 inspection during normal business promulgation of implementation plans hours at the Air, Radiation, and Toxics and the requirements for preparation, [PA 088±4033; FRL±5640±3] Division, U.S. Environmental Protection adoption, and submittal of Agency, Region III, 841 Chestnut implementation plans governing the Approval and Promulgation of Air Building, Philadelphia, Pennsylvania NSR programs mandated by parts C and Quality Implementation Plans; 19107. Persons interested in examining D of title I of the Clean Air Act. Industry Pennsylvania; Disapproval of the these documents should schedule an groups, State and local permitting Reasonable-Further-Progress Plan for appointment with the contact person agencies, and others have asked for an the 1996±1999 Period for the (listed below) at least 24 hours before extension due to the complex issues Philadelphia Area the visiting day. Copies of the addressed by the proposed rulemaking documents relevant to this action are AGENCY: Environmental Protection and the number of revisions that were also available at the Pennsylvania Agency (EPA). proposed. All comments received by the Department of Environmental EPA on or prior to December 5, 1996 ACTION: Proposed rule. Protection, Bureau of Air Quality, P.O. will be considered in the development Box 8468, 400 Market Street, Harrisburg, SUMMARY: EPA is proposing to of final regulations. Pennsylvania 17105. disapprove the State Implementation DATES: Comments. All public comments FOR FURTHER INFORMATION CONTACT: Plan (SIP) revision submitted by the Brian K. Rehn, Ozone and Mobile regarding EPA’s proposed rulemaking Commonwealth of Pennsylvania (for the on July 23, 1996 must be received by Sources Section (3AT21), USEPA— Philadelphia ozone nonattainment area) Region III, 841 Chestnut Building, EPA on or before close of business to meet the rate-of-progress (ROP) December 5, 1996. Philadelphia, Pennsylvania 19107, or by requirements under the Clean Air Act telephone at: (215) 566–2176. Questions ADDRESSES: Comments. All comments (the Act). Under these requirements, should be addressed to the EPA Air may also be sent via e-mail, to: states must demonstrate a 3% reduction [email protected] (Please Docket No. A–90–37, EPA Air Docket of volatile organic compounds (VOCs) (6102), Room M–1500, 401 M Street, note that only written comments can be per year for a three year period between accepted for inclusion in the docket.) Southwest, Washington, DC 20460. 1996 and 1999. EPA is proposing Copies of comments on the information disapproval because the ROP plan SUPPLEMENTARY INFORMATION: collection requirements should also be submitted by Pennsylvania for the Introduction—Clean Air Act sent to the Director, Office of Policy, Philadelphia area projects emissions Requirements Planning, and Evaluation, Regulatory reductions only for control strategies to Information Division, U.S. the 2005 time frame, rather than for the Reasonable-Further-Progress Environmental Protection Agency 1999 and 2002 interim milestone years, Requirements (2136), 401 M Street, Southwest, per the ROP requirements of the Act. Section 182(c)(2) of the Clean Air Act Washington, DC 20460; and a copy to Several of these measures have not been (the Act), as amended by Congress in the Office of Information and Regulatory fully adopted or have been stayed or 1990, requires each state having one or Affairs, Office of Management and replaced by the Commonwealth. more ozone nonattainment areas Budget, 725 17th Street, Northwest, Additionally, the Commonwealth has classified as serious or worse to develop Washington, DC 20503, marked not calculated emissions target level to a plan (for each subject area) that ‘‘Attention: Desk Officer for EPA.’’ be achieved in 1999 (or for 2002) to provides for actual VOC reductions of at Include the Information Collection ensure attainment of reasonable-further- least 3 percent per year averaged over Request number in any correspondence. progress toward attainment by the each consecutive 3-year period, FOR FURTHER INFORMATION CONTACT: statutory deadline. Finally, the 1990 beginning six years after enactment of Dennis Crumpler, Information Transfer emissions inventory estimates provided the Act, until such time as these areas and Program Integration Division (MD– in the Commonwealth’s plan for ROP have attained the National Ambient Air 12), Office of Air Quality Planning and for the period from 1996–1999 vary Quality Standard (NAAQS) for ozone. Standards, U.S. EPA, Research Triangle substantially from the inventory These plans are referred to hereafter as Park, North Carolina 27711, telephone submitted as the Commonwealth’s post-1996 rate-of-progress plans (or (919) 541–0871, telefax (919) 541–5509. official 1990 base year inventory. That post-96 ROP plans). The first of these INSPECTION OF DOCUMENTS: Documents VOC base year inventory was formally ROP plans, for the 3-year period from related to the NSR Reform Rulemaking, revised in September of 1996. This 1996–1999, was due to be submitted to are available for public inspection in inventory superseded all previous 1990 EPA as a SIP revision by November 15, EPA Air Docket No. A–90–37. The base year inventories submitted by the 1994. docket is available for public inspection Commonwealth for Philadelphia— The Act also mandates a 15 percent and copying between 8:30 a.m. to 12 including the one contained in the ROP VOC emission reduction, net of growth, noon and 1:30 to 3:30 p.m., weekdays, plan for the period from 1996 to 1999. between 1990 and 1996. That SIP 55254 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules revision was due to EPA by November option to utilize a two-phased approach demonstration portion of that plan. 15, 1993. The plan for these reductions in order to satisfy the attainment Based on Pennsylvania’s commitment to occurring between 1990–1996 is demonstration requirements of the Act. pursue the phased attainment hereafter referred to as the ‘‘15% demonstration approach, EPA will act Background percent rate-of-progress plan.’’ upon the attainment demonstration at a The Clean Air Act limits the In Pennsylvania, three nonattainment later date. creditability of certain control measures areas were required to submit 15% In a separate submittal from its post- toward the reasonable-further-progress plans in 1993 under the Act. These 1996 ROP plan for Philadelphia, requirement. Specifically, states cannot include the Philadelphia severe Pennsylvania submitted a plan to take credit for reductions achieved by nonattainment area, the Pittsburgh achieve a 15% reduction in VOCs for Federal Motor Vehicle Control Program moderate nonattainment area, and the the period from 1990 to 1996 for the (FMVCP) measures (e.g., new car Reading moderate nonattainment area. Philadelphia area. Pennsylvania emissions standards) promulgated prior Since Philadelphia is the only amended this plan in January of 1995. to 1990, or for reductions stemming Pennsylvania nonattainment having a EPA proposed disapproval of that from regulations promulgated prior to classification of serious or worse, it is January 1995 plan in the July 10, 1996, 1990 to lower the volatility (i.e., Reid the only area with an attainment edition of the Federal Register (61 FR Vapor Pressure) of gasoline. deadline beyond 1996. Therefore, the 36320). Pennsylvania submitted an Furthermore, the Act does not allow Philadelphia area must continue to amended 15% plan for Philadelphia on credit toward reasonable-further- demonstrate reasonable-further-progress September 18, 1996, which included progress requirements for post-1990 toward attainment until its 2005 both a revised 1990 base year emission corrections to existing motor vehicle attainment deadline—unless the inventory and a revised contingency inspection and maintenance (I/M) Commonwealth can demonstrate measure plan for the Philadelphia area, programs or corrections to reasonably attainment of the standard with fewer as well. EPA will act upon this available control technology (RACT) reductions sooner than the statutory September 1996, 15% plan SIP rules, since these programs were deadline. submittal separately from today’s required to be in place prior to 1990. The Philadelphia metropolitan area rulemaking action. Additionally, section 172(c)(9) of the includes counties in New Jersey, However, Pennsylvania has not Clean Air Act requires ‘‘contingency Delaware, and Maryland, as well as revised its post-1996 ROP plan since it measures’’ to be included in the plan Pennsylvania, all of which must was originally submitted, in November revision. These measures are required to demonstrate reasonable-further- of 1994. EPA has reviewed this post- be implemented immediately if progress. However, Pennsylvania is only 1996 ROP plan submittal and has reasonable-further-progress has not been responsible for achieving RFP within its identified several serious deficiencies portion of that metropolitan area. The achieved, or if the NAAQS standard is that prohibit approval of this SIP under Commonwealth did not enter an met by the deadline set forth in the section 110 of the Clean Air Act. A agreement with the other states which Clean Air Act. detailed discussion of these deficiencies comprise the metropolitan Philadelphia is included below, in the ‘Analysis’ Attainment Demonstration Requirement area to do a multi-state ROP plan, and portion of this rulemaking action. Due The attainment dates prescribed by submitted only a plan to reduce to these deficiencies, the post-1996 ROP the Act for areas classified as ‘‘ozone Pennsylvania’s contribution by 15 plan will not achieve the total nonattainment areas’’ are as follows: percent. November 15, 1999, for serious ozone On November 15, 1994, the reductions required by the rate-of- nonattainment areas; November 15, Pennsylvania Department of progress requirements of the Act. EPA’s 2005, for severe ozone nonattainment Environmental Resources submitted a review of this plan did not examine the areas; November 15, 2007, for severe post-1996 ROP plan for the individual control measures applied areas with 1986–1988 design values Pennsylvania portion of the toward rate-of-progress in the post-1996 greater than 0.190 ppm; or November Philadelphia ozone nonattainment area, ROP plan. Many of these measures have 15, 2010, for extreme ozone which included an attainment been formally submitted as separate nonattainment areas. demonstration for that area. The post- control measure SIP revisions, or are The Act also requires that states 1996 ROP plan submitted by national rules adopted by the federal required to submit post-1996 ROP plan Pennsylvania is actually an attempt to government. SIPs for certain areas, due by November demonstrate reasonable-further-progress Today’s action focuses only the 15, 1994 for serious or worse ozone for Philadelphia from 1990 to 2005—the approvability of measures toward the nonattainment areas, must also area’s prescribed attainment date under reasonable-further-progress requirement simultaneously submit for those areas the Act. This plan depicts a 42% of the Act, and does not address an ‘‘attainment demonstration’’ to reduction (3% per year) from the 1990 whether the control measures or provide for achievement of the ozone baseline, net of emissions growth during inventories included in the post-1996 NAAQS by the statutory deadline. This that period. In a letter dated May 31, plan comply with other specific demonstration is to be based on 1995, from James Seif, Secretary of underlying requirements of the Act photochemical grid modeling, such as Pennsylvania’s Department of pertaining to those elements of the plan. the Urban Airshed Model (UAM), or an Environmental Resources, Pennsylvania A summary of the EPA’s findings equivalent analytical method. However, expressed its intent to follow a phased follows. in a March 2, 1995, memorandum from approach to meeting the attainment Analysis of the SIP Revision Mary Nichols, Assistant Administrator demonstration requirements of the for EPA’s Office of Air and Radiation, Clean Air Act, as set forth in a March Base Year Emission Inventory EPA set forth guidance for an alternative 2, 1995, EPA guidance memorandum. The baseline from which states approach to satisfy the attainment EPA is today taking action only upon determine the required reductions for demonstration requirements under Pennsylvania’s post-1996 ROP plan rate-of-progress planning is the 1990 section 182(c)(2)(A) of the Act. Under submittal. However, EPA is not taking base year emission inventory. The this alternative, states were provided the action upon the attainment inventory is broken down into several Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules 55255 emissions source sectors: stationary, Highway mobile source growth was The Commonwealth has substituted area, on-road mobile, and off-road determined through projections using NOX reductions in its post-1996 plan, mobile sources. Pennsylvania submitted the MOBILE computer model and local but has not calculated 1999 milestone a formal SIP revision containing their projections for vehicle miles of travel target levels for the pollutant NOX. official 1990 base year emission increases in Philadelphia. Therefore, EPA must disapprove the inventory on November 12, 1992. No interim growth estimates have Commonwealth’s post-1996 ROP plan Pennsylvania formally revised this base been included in Pennsylvania’s plan, for failure to satisfy the requirements of year inventory on September 12, 1996, therefore, growth for the period from section 182(c)(2)(C) of the Act and to to reflect recent, more accurate 1996 to 1999 cannot be determined. applicable EPA guidance. estimates of actual 1990 emissions. EPA Pennsylvania must estimate interim The specific measures adopted (either has not yet taken rulemaking action on growth levels to determine the level of through state or federal rules) for the the base year inventory submittal. The emissions reduction control strategies Philadelphia area are addressed, in post-1996 ROP plan submitted in needed to demonstrate reasonable- detail, in the Commonwealth’s post- November of 1994 projects both further-progress by 1999. 1996 plan. A list of control measures for emissions reductions and emissions which Pennsylvania has claimed credit growth which are predicated upon an Calculation of Target Level Emissions in its Philadelphia post-1996 ROP plan inventory which has since been revised. A ‘‘target level’’ of emissions for Philadelphia follows, along with a The inventory that forms the basis of represents the maximum level of brief description of each. Pennsylvania’s present post-1996 ROP emissions allowed in each post-1996 Description of Control Strategies in the plan is no longer valid, and EPA cannot milestone year which will still provide Post-1996 Plan approve emissions reduction ‘‘target the 3 percent per year rate-of-progress levels’’ derived from this outdated requirement mandated by the Act. Stage II Vapor Recovery inventory. EPA intends to conduct EPA’s guidance document entitled This state-adopted regulation requires separate rulemaking action on Guidance on the Post-1996 Rate-of- the installation and operation of vapor Pennsylvania’s official 1990 base year Progress Plan and the Attainment recovery equipment on gasoline inventory SIP submittal at a later date. Demonstration, dated January 1995 dispensing pumps to reduce vehicle Growth in Emissions Between 1996 and (EPA 452–93–015), outlines the refueling emissions. The state regulation 1999 approach states must take to calculate for this program is codified in 25 PA Code § 129.75. EPA approved the EPA has interpreted the Clean Air Act the 1999 target level needed to satisfy the Act’s post-1996 plan requirement. Commonwealth’s Stage II program on to require that states must provide for June 13, 1994 (59 FR 112). sufficient control measures in their The Commonwealth has not reasonable-further-progress plans to calculated a 1999 target level in its plan. Automobile Refinishing offset any emissions growth projected to Instead, the Commonwealth calculated a target level for ROP by 2005. Without an EPA is in the process of adopting a occur after 1996. Therefore, to meet the national rule to control VOC emissions emissions target level for the 1999 ROP requirement, a state must provide from solvent evaporation through milestone year, it is impossible to for sufficient emissions reductions to reformulation of coatings used in auto determine if the Commonwealth has offset projected growth in emissions, in body refinishing processes. These achieved reasonable-further-progress for addition to a 3 percent annual average coatings are typically used by small the 1996–1999 period. Therefore, EPA reduction of VOC emissions. Thus, an businesses, or by vehicle owners. VOC must disapprove the Commonwealth’s estimate of emissions growth from 1996 emissions emanate from the evaporation ROP plan for failure to demonstrate a 3 to 1999 is necessary for demonstrating of solvents used in the coating process. percent per year (on average) reduction reasonable-further-progress by 1999. Pennsylvania’s post-1996 plan claims from 1996 to 1999, as required under Growth is calculated by multiplying the reductions from EPA’s national rule. 1990 base year inventory by acceptable section 182(c)(2)(B) of the Act. Use of emissions reductions from EPA’s forecasting indicators. Growth must be Control Strategies in the Philadelphia expected national rule is creditable determined separately for each source, Post-1996 ROP Plan toward reasonable-further-progress. or by source category, since sources typically grow at different rates. EPA’s Federal and state adopted VOC Reformulated Gasoline inventory preparation guidance control measures may be credited Section 211(k) of the Clean Air Act recommends the following indicators, in toward the ROP plan requirements of requires that, beginning January 1, 1995, order of preference: product output, the Act (with the exception of measures only reformulated gasoline be sold or value added, earnings, and employment. promulgated prior to 1990 which were dispensed in ozone nonattainment areas Population can also serve as a surrogate specifically discussed earlier). Per classified as severe, or worse. This indicator. section 182(c)(2)(C) of the Act and EPA gasoline is reformulated to reduce Pennsylvania’s post-1996 plan guidance, states also may substitute combustion by-products and to produce projects total growth of 61 tons per day NOX control strategies (with certain fewer evaporative emissions. As a (tpd) for the period between 1990 and limitations) in the ROP plan, provided severe area, Philadelphia benefits from 2005. This includes all sectors, i.e., that these NOX reductions will provide the emission reductions from this point, area, on-road motor vehicle, and at least as much progress toward program. This measure is creditable non-road vehicle source categories. meeting the NAAQS as VOC controls toward ROP planning. Growth for point and area sources is would. In order to claim NOX based upon estimates from the Bureau reductions, states must include a Transportation, Storage, and Disposal Facilities (TSDFs) Rule of Economic Analysis (BEA). summary NOX emissions inventory and Pennsylvania linearly extrapolated from NOX growth projections as part of their TSDFs are private facilities that several BEA reports representing past ROP SIP. The Commonwealth has not manage dilute wastewater, organic/ and future years to obtain its 2005 provided this NOX inventory and inorganic sludges, and organic/ estimates for stationary, area, and non- growth information in its post-1996 SIP inorganic solids. Waste disposal can be road mobile source sectors’ growth. submittal. done by various means including: 55256 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules incineration, treatment, or underground The ROP plan reflects shutdowns from submitted a new I/M program SIP to injection or landfilling. EPA twenty VOC sources in the Philadelphia EPA, under authority provided by the promulgated a national rule on June 21, nonattainment area. These credits are National Highway Systems Designation 1990 for the control of TSDF emissions. ineligible for use as future ERCs, or to Act of 1995, on March 22, 1996, which This measure is creditable toward ROP offset emissions from new sources EPA proposed to conditionally approve planning. under the Commonwealth’s new source on October 3, 1996. Pennsylvania has not revised the ROP plan for Industrial Rule Effectiveness (RE) review regulation. Use of permanent, Philadelphia to reflect the significant Improvements enforceable shutdowns for ROP planning is acceptable, provided the changes to the I/M program since the Rule effectiveness is a means of reductions are not ‘‘double-counted’’ in time the ROP plan was submitted to enhancing rule compliance or the plan (e.g., industrial growth EPA. I/M program emissions reductions implementation by industrial sources, estimates do not account for the are creditable toward ROP planning. and is expressed as a percentage of total shutdowns). available reductions from a control VOC/NOX Reasonably Available Control measure. The default assumption level Architectural and Industrial Technology (RACT) Rules for rule effectiveness is 80%. Maintenance Coatings (AIM) Rule The Act requires states to adopt Pennsylvania claims RE improvements Emission reductions have been regulatory programs to control major from the 80% default level to a level of projected for AIM coatings due to the sources of VOCs and NOX located in 90% in their ROP plan SIP revision for expected promulgation by the EPA of a ozone nonattainment areas—with the Philadelphia, based upon improvements national reformulation rule. These definition of ‘‘major’’ becoming to RACT regulations for specific coatings include a host of field-applied increasingly stringent based upon the facilities in the 5-county Philadelphia surface coatings used for household, nonattainment area classification. RACT area. The applicable RACT rules pertain commercial, and industrial is a generic term referring to the variety to surface coating operations (PA Code applications—including for example, of controls available to reduce emissions § 129.52) and offset printing operations paints, highway coatings, and from a source or class of sources. EPA (PA Code § 129.67). architectural finishes. has issued guidelines (i.e., CTGs) for Pennsylvania followed EPA policy to RACT for more than 30 VOC source quantify emissions reductions from Tier I Federal Motor Vehicle Control categories, with plans to issue at least 15 specific RE improvements for two Program more. Additionally, EPA has issued categories, in the absence of quantifiable EPA promulgated a national rule Alternative Control Techniques (ACTs) compliance or emissions data. The RE establishing ‘‘new car’’ standards for for specific classes of NOX sources. measures Pennsylvania claims toward 1994 and newer model year light-duty Pennsylvania has adopted a ‘‘case-by- the ROP plan include facility vehicles and light-duty trucks on June 5, case’’ regulatory approach to RACT, improvements, as well as improved 1991 (56 FR 25724). Since the standards which applies to the Philadelphia area. state oversight. Facility measures were adopted after the Clean Air Act Individual sources are reviewed include: Improved operator training, was amended in 1990, the resulting independently to determine the level of better operation and maintenance of emission reductions are creditable RACT that source must enact. RACT process equipment, improved source toward ROP plans. Due to the three-year improvements required by the Clean Air monitoring/reporting. State oversight phase-in period for this program, and Act of 1990 are creditable toward ROP improvements include: more inspector the associated benefits stemming from plans. training, stringent compliance fleet turnover, the reductions were not Employee Trip Reduction (ETR) inspections of all RE improvement significant prior to 1996. FMVCP Program facilities. RE improvements are programs promulgated as a result of the creditable toward the ROP plan Clean Air Act as amended in 1990 are This program requires employers requirement of the Clean Air Act. creditable for ROP planning purposes. having 100 or more employees in a subject nonattainment area to develop Permanent VOC/NOX Source/Process Off-Road Use of Reformulated Gasoline and submit trip reduction plans and to Shutdowns The use of reformulated gasoline will reduce their employees trips, as Several industrial VOC sources that also result in reduced emissions (for measured by average passenger were operational in 1990 (i.e., included both exhaust and evaporative emissions) occupancy (APO) levels. A regulation in the base year inventory) have since from off-road engines such as outboard implementing this Clean Air Act shut down either processes or entire motors for boats and lawn mower requirement was adopted by facilities. Pennsylvania has adopted a engines. This measure is creditable Pennsylvania, but was stayed by the banking rule (25 Pa Code § 127.208), toward the ROP requirements of the Act. Governor before it became effective. which requires that sources wishing to Congress eventually amended the Clean IM240 Enhanced Vehicle Inspection and bank emission reduction credits, or Air Act to change the nature of the ETR Maintenance (I/M) Program ERCs, must do so within one year of requirement to allow for its voluntary initiation of the shutdown. If not, the The I/M program described in the implementation. Mandatory ETR Commonwealth can claim credit for the Commonwealth’s ROP plan is a programs are creditable toward ROP reductions as permanent and contractor-operated, centralized, IM240 planning. enforceable emissions reductions. inspection program. This program was Pennsylvania’s ROP plan claims conditionally approved by EPA in Consumer Products National Rule partial credit for shutdowns for which August of 1994. However, since that EPA is in the process of adopting the source ‘‘banked’’ emissions time, Pennsylvania suspended operation regulations to control VOC emissions reductions, and the Commonwealth of this program, terminated the test from consumer products, through claimed the entire shutdown credit for inspector contract, and began the rule manufacturer reformulation of these sources that did not bank their adoption process for a decentralized types of products. These products emissions within the one year deadline program as a replacement for the include household, personal, and set forth in Pennsylvania’s banking rule. centralized program. Pennsylvania automotive related-products which Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules 55257 contain VOCs. Pennsylvania has EMISSION CONTROL MEASURES FOR EPA is not evaluating the creditability of claimed credit toward the ROP plan for THE PHILADELPHIA OZONE NON- specific measures or the levels of implementation of this national rule. ATTAINMENT AREA POST-1996 emissions reductions claimed by the The consumer products national rule is PLANÐContinued Commonwealth for specific measures in creditable toward ROP planning. the plan, at this time. Traffic Line Painting Reformulation IM240 Program Contingency Measures Federal Reformulated Gasoline This measure would require Federal Motor Vehicle Control Program Per sections 172(c)(9) and 182(c)(9) of conversion from VOC to water based (Tier I vehicle standards) the Act, states must include contingency measures in their rate-of-progress plan traffic line paints by the Pennsylvania Employer Trip Reduction Program Stage II Vapor Recovery at Gasoline Sta- submittals for ozone nonattainment Department of Transportation tions areas classified as moderate or above. (PennDOT). This measure would take VOC/NOX RACT Contingency measures are measures the form of a consent decree with Select Industrial Rule Effectiveness Im- which are to be immediately PennDOT requiring continued use of provements (80%‰90%) implemented if reasonable-further- these water-based coatings. Federal Architectural Industrial and Mainte- progress is not achieved in a timely Pennsylvania has taken credit for this nance Coatings Rule manner, or if the areas do not attain the measure in its post-1996 plan. Only Industrial Facility/Process Shutdowns NAAQS standard by the applicable date through a mandatory enforcement Federal Consumer Products Rule mandated by the Act. EPA’s mechanism (e.g., a binding consent Federal Autobody Refinishing Rule Traffic Line Paint Reformulation interpretation of this Clean Air Act decree) would this measure be Treatment, Storage, and Disposal Facility requirement is set forth in The General creditable toward ROP planning. RCRA National Rule Preamble to Title I (57 FR 13498), which NO Control Strategies: Highway Vehicle Control NOX X requires that the contingency measures Reductions Total Highway Vehicle-related Reductions should, at a minimum, ensure that Industrial Facility/Process Shutdowns emissions reductions continue to be Industrial/Utility Boiler NO Controls This measure includes total NOX X made if reasonable progress (or reductions associated with several The Commonwealth’s plan projects attainment) is not achieved in a timely mobile source programs. Several emissions reductions from each of the manner. Contingency measures must be programs which would achieve NOX above control strategies for the year fully adopted rules or measures but do reductions, in addition to any other 2005 and, therefore reductions were not need to be implemented until they benefits, include the enhanced I/M estimated by the Commonwealth for the are triggered by a failure to either meet program, the Federal Motor Vehicle evaluation year 2005. However, for the a milestone or attain the NAAQS. Control Program (FMVCP), and Phase II post-1996 plan, the Commonwealth is States must show that their of the reformulated gasoline program. required to project reductions expected contingency measures can be Pennsylvania has apparently taken in 1999 for any claimed control strategy, implemented with minimal further credit for all NOX reductions stemming in order to demonstrate that the area action on their part, and with no from mobile source measures in place, will meet its 1999 target level, and additional rulemaking action (e.g., which provide reductions in the therefore demonstrate reasonable- public hearings, legislative review, etc.). Philadelphia area. However, it is further-progress for the 1999 milestone Analysis of the Commonwealth’s unclear which specific measures are date specified by the Act. included in the Commonwealth’s Without a 1999 milestone target level Contingency Measures estimates. and a projection for 1999 emissions The Commonwealth’s post-1996 plan reductions associated with the control does not specify any contingency Ozone Transport Region Industrial/ strategies claimed within the post-1996 measures to be applied if reasonable- Utility Boiler Controls ROP plan, it is impossible to determine further-progress is not achieved by the The Ozone Transport Commission if reasonable progress has been achieved 1999 milestone date. Pennsylvania’s adopted a memorandum of for the period from 1996 to 1999. post-1996 plan indicates the state will understanding (MOU) for a control Several of the control strategies have more control measures in place strategy to address industrial NOX contained in the post-1996 plan are not than is needed to demonstrate emissions, primarily those generated by creditable toward ROP under the Act, reasonable-further-progress by 2005, electric utilities. The MOU recommends since the state has not adopted rules for and that the ‘‘surplus’’ of emissions reductions (from 1990 levels) from 250 those programs, or the programs have reductions generated by these control million Btu and larger fossil fuel fired been stayed and are not presently being measures eliminates the necessity for indirect transfer units of NOX. implemented as stated by the post-1996 contingency measures, since this Additionally, 15 megawatt electric plan. One example is the enhanced surplus could be used toward any generating units would be capped at IM240 program described in the shortfall. 1990 emissions levels. The reductions Commonwealth’s SIP, which has been EPA disagrees with this rationale. The would take place through two phases, subsequently replaced with a test-and- contingency measures must be available beginning in 1999. Pennsylvania has repair ASM enhanced I/M program. in 1999 if reasonable progress is not achieved by that milestone date, not claimed these NOX reductions in its Another example, the ETR which was post-1996 ROP. stayed, and is no longer being 2005 as the Commonwealth’s plan implemented as a mandatory control provides for. If EPA determines there is Analysis of Control Measures: measure, as described in the post-1996 an emissions reduction shortfall in ROP plan. 1999, measures which have already EMISSION CONTROL MEASURES FOR Since EPA cannot determine if the been enacted by the Commonwealth or THE PHILADELPHIA OZONE NON- measures contained in the Philadelphia the federal government would not serve ATTAINMENT AREA POST-1996 PLAN post-1996 plan are sufficient to to alleviate the shortfall. Only through demonstrate reasonable-further-progress implementation of additional measures VOC Control Strategies: from 1996 to 1999 or from 1999 to 2002, (i.e., contingency measures), or through 55258 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules early implementation of measures slated In light of the above deficiencies, EPA impact on a substantial number of small for the future, could additional is proposing to disapprove this SIP entities. Small entities include small emissions reductions occur. revision, which was submitted businesses, small not-for-profit Therefore, the Commonwealth’s plan November 12, 1994, under sections enterprises, and government entities is not approvable at this time, due to a 110(k)(3) and 301(a) of the Act. The with jurisdiction over populations of lack of sufficient continency measures submittal does not satisfy the less than 50,000. to offset sufficient ozone precursor requirements of section 182(c)(2)(B) of EPA’s disapproval of the state request emissions in the year after a shortfall, or the Act regarding the post-1996 rate-of- under Section 110 and subchapter I, failure to achieve ROP, has been progress plan, nor the requirement of part D of the CAA does not affect any identified. section 172(c)(9) of the Clean Air Act However, the Commonwealth has existing requirements applicable to regarding contingency measures. small entities. Any preexisting federal submitted a contingency measure plan EPA is soliciting public comments on as part of its September 1996 15% plan requirements remain in place after this the issues discussed in this document, disapproval. Federal disapproval of the submittal. EPA will act upon that or on other matters relevant to the submittal, including the contingency state submittal does not affect its state- demonstration of reasonable-further- enforceability. Moreover, EPA’s measures contained within, in a progress toward attainment of the ozone separate rulemaking from today’s action. disapproval of the submittal does not NAAQS for the period from 1996 to impose any new Federal requirements. Proposed Rulemaking Action 1999. These comments will be Therefore, EPA certifies that this considered before taking final action. EPA has evaluated this submittal for disapproval action does not have a Interested parties may participate in the consistency with the Clean Air Act, significant impact on a substantial Federal rulemaking procedure by applicable EPA regulations, and EPA number of small entities because it does submitting written comments to the policy. Pennsylvania’s post-1996 rate-of- not remove existing requirements and EPA Regional office listed in the progress plan for the Philadelphia impose any new Federal requirements. ADDRESSES section of this document. nonattainment area will not achieve The Agency has reviewed this request Unfunded Mandates sufficient reductions to meet the rate-or- for revision of the federally-approved progress requirements of section State implementation plan for Under Section 202 of the Unfunded 182(c)(2)(B) of the Act. Pennsylvania conformance with the provisions of the Mandates Reform Act of 1995 has not projected emissions growth for (‘‘Unfunded Mandates Act’’), signed the period from 1996–1999, nor has the 1990 Clean Air Act, as enacted on November 15, 1990. The Agency has into law on March 22, 1995, EPA must Commonwealth calculated an interim prepare a budgetary impact statement to ‘‘target level’’ of emissions for 1999, by determined that this action does not conform with the statute and therefore accompany any proposed or final rule which to measure its rate-of-progress in that includes a Federal mandate that attaining the ozone NAAQS. Instead, the must be disapproved. Nothing in this action should be may result in estimated costs to State, Commonwealth’s plan evaluates local, or tribal governments in the emissions reductions for the period construed as permitting or allowing or establishing a precedent for any future aggregate; or to private sector, of $100 from 1990 to 2005—ignoring any million or more. Under Section 205, interim evaluation milestones. Several request for revision to any state implementation plan. Each request for EPA must select the most cost-effective of the measures listed in the plan (to and least burdensome alternative that occur by 2005) have been halted or revision to the state implementation plan shall be considered separately in achieves the objectives of the rule and stricken from the Commonwealth’s is consistent with statutory regulations, and are therefore invalid light of specific technical, economic, and environmental factors and in requirements. Section 203 requires EPA toward meeting the ROP requirement for to establish a plan for informing and the 1999 milestone year. relation to relevant statutory and regulatory requirements. advising any small governments that Additionally, the baseline 1990 may be significantly or uniquely emissions inventory contained in the Administrative Requirements impacted by the rule. Commonwealth’s post-1996 plan has been superseded by a revised formal Executive Order 12866 EPA has determined that the approval base year inventory which was This action has been classified as a action proposed/promulgated does not submitted in September of 1996 as part Table 3 action for signature by the include a Federal mandate that may of the Commonwealth’s 15% RFP plan. Regional Administrator under the result in estimated costs of $100 million The inventory from which many of the procedures published in the Federal or more to either State, local, or tribal control measure emissions reductions Register on January 19, 1989 (54 FR governments in the aggregate, or to the for the Commonwealth’s post-1996 plan 2214–2225), as revised by a July 10, private sector. This Federal action (which contains projected emissions 1995 memorandum from Mary Nichols, approves preexisting requirements reductions from 1990 to 2005) were Assistant Administrator for Air and under State or local law, and imposes determined is therefore invalid. The Radiation. The Office of Management no new Federal requirements. post-1996 ROP plan control measure and Budget (OMB) has exempted this Accordingly, no additional costs to reductions must be recalculated based regulatory action from E.O. 12866 State, local, or tribal governments, or to upon the Commonwealth’s revised base review. the private sector, result from this year inventory. action. Finally, the Commonwealth’s plan Regulatory Flexibility Act The Administrator’s decision to does not contain contingency measures. Under the Regulatory Flexibility Act, approve or disapprove the Under sections 172(c)(9) and 182(c)(9) 5 U.S.C. 600 et seq., EPA must prepare Commonwealth’s post-1996 rate-of- of the Act, the Commonwealth is a regulatory flexibility analysis progress plan SIP revision will be based required to adopt such backstop assessing the impact of any proposed or on whether it meets the requirements of measures in the event an emissions final rule on small entities. 5 U.S.C. 603 section 110(a)(2)(a)-(K) and part D of the shortfall occurs in the 1999 milestone and 604. Alternatively, EPA may certify Clean Air Act, as amended, and EPA year. that the rule will not have a significant regulations in 40 CFR Part 51. Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules 55259

List of Subjects in 40 CFR Part 52 FOR FURTHER INFORMATION CONTACT: filed online at many Federal Depository Environmental protection, Air William M. Hedgebeth of the EPA Libraries. Information submitted as a comment pollution control, Hydrocarbons, Region 10 Office of Air Quality, (206) concerning this document may be Incorporation by reference, 553–7369. claimed confidential by marking any Intergovernmental relations, Nitrogen Dated: October 18, 1996. part or all of that information as CBI. dioxide, Ozone, Particulate matter, Chuck Clarke, Information so marked will not be Reporting and recordkeeping Regional Administrator. disclosed except in accordance with requirements. [FR Doc. 96–27477 Filed 10–24–96; 8:45 am] procedures set forth in 40 CFR part 2. Authority: 42 U.S.C. 7401–7671q. BILLING CODE 6560±50±P A copy of the comment that does not Dated: October 15, 1996. contain CBI must be submitted for William T. Wisniewski, inclusion in the public record. 40 CFR Parts 153 and 159 Acting Regional Administrator, Region III. Information not marked confidential [FR Doc. 96–27472 Filed 10–24–96; 8:45 am] [OPP±60010G; FRL±5571±6] may be disclosed publicly by EPA BILLING CODE 6560±50±P RIN 2070-AB50 without prior notice. All comments will be available for public inspection in Rm. Reporting Requirements for Risk/ 1132 at the Virginia address given above 40 CFR Part 81 Benefit Information; Extension of from 8 a.m. to 4:30 p.m., Monday Comment Period to Request through Friday, excluding legal [WA 54±7127; FRL±5640±7] Comments on Burden Estimates holidays. FOR FURTHER INFORMATION CONTACT: Jim Clean Air Act Reclassification; AGENCY: Environmental Protection Roelofs, Policy and Special Projects Spokane, Washington Carbon Agency (EPA). Staff, Office of Pesticide Programs, Monoxide Nonattainment Area: ACTION: Proposal; extension of comment Environmental Protection Agency, Mail Reopening for Public Comment period. Code (7501C), 401 M St., SW., Washington, DC 20460, Telephone: AGENCY: Environmental Protection SUMMARY: In the Federal Register of (703) 308-2964, e-mail: Agency (EPA) September 20, 1996, EPA extended the [email protected]. reopening of the comment period for a ACTION: Proposed rule; reopening for SUPPLEMENTARY INFORMATION: In the public comment. proposed rule that published in the Federal Register of August 12, 1996 (61 Federal Register of September 24, 1992, FR 41764) (FRL-5388-1), EPA SUMMARY: EPA is seeking additional which defined the specifics of reporting announced the reopening of the public comment on a July 1, 1996 (61 requirements under section 6(a)(2) of comment period to a proposed rule FR 33879), proposal to find that the the Federal Insecticide, Fungicide, and published in the Federal Register of Spokane, Washington carbon monoxide Rodenticide Act. This document September 24, 1992 (57 FR 44290), (CO) nonattainment area has not announces a further extension of the which defined the specifics of reporting attained the CO national ambient air comment period for an additional 15 requirements under section 6(a)(2) of quality standard (NAAQS) by December days. the Federal Insecticide, Fungicide, and 31, 1995, as required by the Clean Air DATES: Comments must be submitted on Rodenticide Act (FIFRA). Comments Act (CAA). The additional public or before November 12, 1996. were limited to the sole issue of the comment solicited herein pertains only ADDRESSES: Submit written comments costs or burdens associated with the to an EPA memorandum, dated identified by the docket control number proposed rule and the latest draft of the September 11, 1996, titled ‘‘Region X OPP-60010G by mail to: Public final rule. (Spokane, Washington) Site Evaluation Response Section, Field Operations On August 29, 1996, a number of Trip.’’ This document provides Division (7506C), Office of Pesticide industry trade associations formally information on the siting of a CO Programs, Environmental Protection petitioned the Agency to extend the monitoring site (identified as site #54– Agency, 401 M St., SW., Washington, comment period for 60 days, and to 063–0044) located at 3rd Avenue and DC 20460. In person, bring comments initiate a broader reopening of the Washington Street in Spokane, directly to the OPP docket which is rulemaking record to take comment on Washington. The memorandum is located in Rm. 1132 of Crystal Mall #2, a number of provisions in the June 14, available at the address listed below. 1921 Jefferson Davis Highway, 1996 ‘‘draft final’’ version of the rule. EPA is reviewing the monitoring site in Arlington, VA. In the Federal Register of September order to respond to comments on the Comments and data may also be 20, 1996 (61 FR 49427) (FRL-5396-1), July 1, 1996, proposed rule (61 FR submitted electronically by sending EPA extended the comment period for 33879). electronic mail (e-mail) to: opp- an additional 30 days, but denied the DATES: Comments concerning this [email protected]. Electronic petitioners’ request to reopen the action must be received by EPA on or comments must be submitted as an rulemaking record on issues beyond the before November 25, 1996. ASCII file avoiding the use of special costs and burdens associated with the ADDRESSES: Written comments should characters and any form or encryption. draft final rule. At a meeting on October be sent to: Montel Livingston, SIP Comments and data will also be 11, 1996, between representatives of Manager, Office of Air Quality, M/S accepted on disks in WordPerfect 5.1 EPA, a public interest group, and OAQ–107, EPA Region 10, Docket #WA file format or ASCII file format. All several pesticide industry trade 54–7127, 1200 Sixth Avenue, Seattle, comments and data in electronic form associations, a request was made to Washington 98101. The proposed rule must be identified by the docket number allow more time for submitting and the document entitled ‘‘Region X ‘‘OPP-60010G.’’ No Confidential comments, due to the difficulty of (Spokane, Washington) Site Evaluation Business Information (CBI) should be compiling information from numerous Trip’’ will be available in the public submitted through e-mail. Electronic registrants on the current and projected docket. comments on this document may be burden of compliance with rule 55260 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules requirements (For additional Comprehensive information on the response is appropriate. In making this information on the meeting refer to the Site is contained in the NJDEP public determination, EPA, in consultation docket.). The Agency has decided to docket and is available for viewing, by with NJDEP, will consider whether any grant an additional 15 days for appointment only, at: NJDEP-Bureau of of the following criteria has been met: comments to be submitted. Community Relations, 401 East State (i) Responsible or other persons have Street, CN 413, Trenton, NJ 08625, implemented all appropriate response List of Subjects in Part 153 and 159 phone: (609) 984–3081, 8:30 AM to 4:30 actions required; or Environmental protection, PM—Monday through Friday (excluding (ii) All appropriate Fund-financed Information collection requests, holidays), contact: Heather Swartz. response under CERCLA has been Pesticides and pests, Reporting and Information on the Site is also implemented, and no further response recordkeeping requirements. available for viewing at the Site action by responsible parties is Dated: October 17, 1996. Administrative Record Repository appropriate; or Lynn R. Goldman, located at: New Egypt Library, 10 (iii) The remedial investigation has shown that the release poses no Assistant Administrator for Prevention, Evergreen Road, New Egypt, NJ 08533, Pesticides and Toxic Substances. contact: Barbara Rothlein, phone: (609) significant threat to public health or to 758–7888. Hours: Monday (10 am to 5 the environment and, therefore, taking [FR Doc. 96–27468 Filed 10–24–96; 8:45 am] pm and 7 to 9 pm), Tuesday (10 am to remedial measures is not appropriate. BILLING CODE 6560±50±F 5 pm), Wednesday (1 to 5 pm), III. Deletion Procedures Thursday (1 to 5 pm and 7 to 9 pm), Friday (10 am to 5 pm) and Saturday (10 The NCP provides that EPA shall not 40 CFR Part 300 am to 1 pm). delete a site from the NPL until the State [FRL±5638±4] FOR FURTHER INFORMATION CONTACT: in which the release was located has Jospeh Gowers, 212–637–4413. concurred, and the public has been National Oil and Hazardous afforded an opportunity to comment on Substances Pollution Contingency SUPPLEMENTARY INFORMATION: the proposed deletion. Deletion of a site Plan; National Priorities List Table of Contents from the NPL does not affect responsible party liability or impede agency efforts AGENCY: I. Introduction Environmental Protection to recover costs associated with Agency. II. NPL Deletion Criteria III. Deletion Procedures response efforts. The NPL is designed ACTION: Notice of intent to delete the IV. Basis for Intended Site Deletion primarily for information purposes and Spence Farm Superfund Site from the to assist Agency management. National Priorities List; request for I. Introduction EPA Region II will accept and comments. EPA Region II announces its intent to evaluate public comments before delete the Site from the NPL and making a final decision to delete the SUMMARY: The Environmental Protection Agency (EPA), Region II, announces its requests public comment on this site. The Agency believes that deletion intent to delete the Spence Farm deletion. The NPL is Appendix B to the procedures should focus on notice and Superfund Site (Site) from the National NCP, which EPA promulgated pursuant comment at the local level. Comments Priorities List (NPL) and requests public to section 105 of CERCLA, as amended. from the local community may be most comment on this action. The NPL EPA identifies sites that appear to pertinent to deletion decisions. The constitutes Appendix B of 40 CFR part present a significant risk to public following procedures were used for the 300 which is the National Oil & health, welfare, or the environment and intended deletion of the Site: 1. NJDEP, as the lead agency, has Hazardous Substances Pollution maintains the NPL as the list of those recommended deletion. Contingency Plan (NCP), which EPA sites. Sites on the NPL may be the subject of remedial actions financed by 2. EPA Region II concurred with the promulgated pursuant to Section 105 of deletion decision and has prepared the the Comprehensive Environmental the Hazardous Substances Superfund Response Trust Fund (the Fund). relevant documents. Response, Compensation, and Liability 3. Concurrent with the Notice of Act of 1980 (CERCLA), as amended. Pursuant to § 300.425(e)(3) of the NCP, any site deleted from the NPL remains Intent to Delete, a notice has been EPA and the New Jersey Department of published in a local newspaper and has Environmental Protection (NJDEP) have eligible for Fund-financed remedial actions, if conditions at the site warrant been distributed to appropriate Federal, determined that all appropriate State and local officials, and other response/remedial actions have been such action. EPA will accept comments interested parties. completed and no further remedial concerning the deletion of the Site from The comments received during the action by the responsible party is the NPL for 30 days after publication of comment period will be evaluated appropriate under CERCLA. In addition, this notice in the Federal Register until before any final decision is made. EPA EPA and NJDEP have determined that November 25, 1996. Region II will prepare a Responsiveness remedial activities conducted to date at Section II of this notice explains the Summary, if necessary, which will the Site have been protective of public criteria for deleting sites from the NPL. address the comments received during health, welfare, and the environment. Section III discusses procedures that the public comment period. DATES: Comments concerning the EPA is using for this action. Section IV If after consideration of these deletion of the Site from the NPL may discusses how the Site meets the NPL comments, EPA decides to proceed with be submitted on or before November 25, deletion criteria. the deletion, the EPA Regional 1996. Administrator will place a Notice of ADDRESSES: Comments should be II. NPL Deletion Criteria Deletion in the Federal Register. The submitted to: Joseph Gowers, Remedial The NCP establishes the criteria that NPL will reflect any deletions in the Project Manager, U.S. Environmental the Agency uses to delete sites from the next final update. Public notices and Protection Agency, Region II, 290 NPL. In accordance with 40 CFR copies of the Responsiveness Summary, Broadway, 19th Floor, New York, New 300.425(e)(1) (i)–(iii), sites may be if any, will be made available to local York 10007–1866. deleted from the NPL where no further residents by EPA Region II. Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules 55261

IV. Basis for Intended Site Deletion monitoring which was conducted ADDRESSES: Comments should be The following summary provides the annually from 1989 through 1994 did submitted to: Joseph Gowers, Remedial Agency’s rationale for recommending not detect Site-related contaminants Project Manager, U.S. Environmental deletion of the Spence Farm Superfund above criteria established for the Protection Agency, Region II, 290 Site, Ocean County, New Jersey, from protection of ground water. Broadway, 19th Floor, New York, New the NPL. NJDEP and EPA have determined that York 10007–1866. The Site is an 83 acre site located in the remedy implemented at the Site is Comprehensive information on the Plumsted Township, Ocean County, protective of human health and the Site is contained in the NJDEP public New Jersey. Approximately 20 acres of environment and that no further docket and is available for viewing, by the Site is reported to have been used cleanup by responsible parties is appointment only, at: NJDEP-Bureau of from 1961 to 1967 for disposal of appropriate. Hazardous substances on Community Relations, 401 East State drummed and bulk wastes. The majority Site were cleaned up to levels that Street, CN 413, Trenton, NJ 08625, of the disposal occurred in random would allow for unlimited use and phone: (609) 984–3081, 8:30 am to 4:30 areas along stream valleys and wooded unrestricted exposure, therefore the pm—Monday through Friday (excluding areas within the property. five-year review requirement of section holidays), contact: Heather Swartz. The NJDEP conducted an initial 121(c) of CERCLA, as amended, is not Information on the Site is also inspection of the Site in 1980. As a applicable. available for viewing at the Site result of initial investigations, EPA Dated: September 16, 1996. Administrative Record Repository proposed that the Site be added to the William J. Musynski, located at: New Egypt Library, 10 NPL in October 1981. Acting Regional Administrator. Evergreen Road, New Egypt, NJ 08533, contact: Barbara Rothlein, phone: (609) A Remedial Investigation (RI) was [FR Doc. 96–27048 Filed 10–24–96; 8:45 am] performed from December 1983 through 758–7888, hours: Monday (10 am to 5 BILLING CODE 6560±50±P May 1984. The RI identified several pm and 7 to 9 pm), Tuesday (10 am to disposal areas. The disposal areas 5 pm), Wednesday (1 to 5 pm), contained discarded polymers, 40 CFR Part 300 Thursday (1 to 5 pm and 7 to 9 pm), laboratory glassware, lab packs, drums Friday (10 am to 5 pm) and Saturday (10 am to 1 pm). and stained soils. Soil samples collected [FRL±5638±5] as part of the RI yielded various organic FOR FURTHER INFORMATION CONTACT: compounds and metals. National Oil and Hazardous Joseph Gowers 212–637–4413. A Record of Decision (ROD), which Substances Pollution Contingency SUPPLEMENTARY INFORMATION: selected a remedy for the Site, was Plan; National Priorities List signed in September 1984. The selected Table of Contents remedy called for the off-site disposal of AGENCY: Environmental Protection I. Introduction waste material, drums, lab packs and Agency. II. NPL Deletion Criteria contaminated soil, and ground water ACTION: Notice of intent to delete the III. Deletion Procedures monitoring for a five year period. In Pijak Farm Superfund Site from the IV. Basis for Intended Site Deletion April 1985, Morton International National Priorities List; request for I. Introduction Incorporated entered into an comments. enforcement agreement with NJDEP for EPA Region II announces its intent to performance of the selected remedy. SUMMARY: The Environmental Protection delete the Site from the NPL and Morton began implementation of the Agency (EPA), Region II, announces its requests public comment on this selected remedy in September 1985. The intent to delete the Pijak Farm deletion. The NPL is Appendix B to the initial phases of the remedial program Superfund Site (Site) from the National NCP, which EPA promulgated pursuant included the collection of soil samples Priorities List (NPL) and requests public to section 105 of CERCLA, as amended. and digging of test pits in the disposal comment on this action. The NPL EPA identifies sites that appear to areas to further define the extent of the constitutes Appendix B of 40 CFR part present a significant risk to public disposal areas. Subsequent to the off-site 300 which is the National Oil & health, welfare, or the environment and disposal of the waste and contaminated Hazardous Substances Pollution maintains the NPL as the list of those soil, Morton conducted soil sampling to Contingency Plan (NCP), which EPA sites. Sites on the NPL may be the determine whether the NJDEP- promulgated pursuant to Section 105 of subject of remedial actions financed by established 1 milligram per kilogram the Comprehensive Environmental the Hazardous Substances Superfund (mg/kg) cleanup criterion for Response, Compensation, and Liability Response Trust Fund (the Fund). polychlorinated biphenyls (PCBs) had Act of 1980 (CERCLA), as amended. Pursuant to § 300.425(e)(3) of the NCP, been achieved. PCBs were detected in EPA and the New Jersey Department of any site deleted from the NPL remains soil at levels exceeding the 1 mg/kg Environmental Protection (NJDEP) have eligible for Fund-financed remedial criterion, prompting further remedial determined that all appropriate actions, if conditions at the site warrant action. response/remedial actions have been such action. Removal of PCB-contaminated ‘‘hot completed and no further remedial EPA will accept comments spots’’ was conducted in August and action by the responsible party is concerning the deletion of the Site from September 1989 and November 1990. appropriate under CERCLA. In addition, the NPL for 30 days after publication of Removal of remaining PCB- EPA and NJDEP have determined that this notice in the Federal Register until contaminated soil was completed remedial activities conducted to date at November 25, 1996. during the final phase of the remedial the Site have been protective of public Section II of this notice explains the action, which was performed in 1994. health, welfare, and the environment. criteria for deleting sites from the NPL. The cleanup of PCB-contaminated soil DATES: Comments concerning the Section III discusses procedures that was confirmed through the collection deletion of the Site from the NPL may EPA is using for this action. Section IV and analysis of post-excavation soil be submitted on or before November 25, discusses how the Site meets the NPL samples. Furthermore, ground water 1996. deletion criteria. 55262 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules

II. NPL Deletion Criteria Administrator will place a Notice of contaminated soil was completed The NCP establishes the criteria that Deletion in the Federal Register. The during the final phase of the remedial the Agency uses to delete sites from the NPL will reflect any deletions in the action, which was performed in 1994. NPL. In accordance with 40 CFR next final update. Public notices and The cleanup of PCB-contaminated soil 300.425 (e)(1)(i)–(iii), sites may be copies of the Responsiveness Summary, was confirmed through the collection deleted from the NPL where no further if any, will be made available to local and analysis of post-excavation soil residents by EPA Region II. response is appropriate. In making this samples. Furthermore, ground water determination, EPA, in consultation IV. Basis for Intended Site Deletion monitoring which was conducted annually from 1989 through 1994 did with NJDEP, will consider whether any The following summary provides the of the following criteria has been met: not detect Site-related contaminants Agency’s rationale for recommending above criteria established for the (i) Responsible or other persons have deletion of the Pijak Farm Superfund implemented all appropriate response protection of ground water. Site, Ocean County, New Jersey, from NJDEP and EPA have determined that actions required; or the NPL. the remedy implemented at the Site is (ii) All appropriate Fund-financed The Site is an 87 acre site located in protective of human health and the response under CERCLA has been Plumsted Township, Ocean County, environment and that no further implemented, and no further response New Jersey. Approximately 20 acres of cleanup by responsible parties is action by responsible parties is the Site is reported to have been used appropriate. Hazardous substances on appropriate; or from 1963 to 1970 for disposal of (iii) The remedial investigation has Site were cleaned up to levels that drummed and bulk wastes. The majority would allow for unlimited use and shown that the release poses no of the disposal occurred in random significant threat to public health or to unrestricted exposure, therefore the areas along stream valleys and wooded five-year review requirement of Section the environment and, therefore, taking areas within the property. remedial measures is not appropriate. 121(c) of CERCLA, as amended, is not The NJDEP conducted an initial applicable. III. Deletion Procedures inspection of the Site in 1980. As a result of initial investigations, EPA Dated: September 16, 1996. The NCP provides that EPA shall not proposed that the Site be added to the William J. Muszynski, delete a site from the NPL until the State NPL in October 1981. Acting Regional Administrator. in which the release was located has A Remedial Investigation (RI) was [FR Doc. 96–27047 Filed 10–24–96; 8:45 am] concurred, and the public has been performed from December 1983 through BILLING CODE 6560±50±P afforded an opportunity to comment on May 1984. The RI identified several the proposed deletion. Deletion of a site disposal areas. The disposal areas from the NPL does not affect responsible contained discarded polymers, FEDERAL EMERGENCY party liability or impede agency efforts laboratory glassware, lab packs, drums MANAGEMENT AGENCY to recover costs associated with and stained soils. Soil samples collected response efforts. The NPL is designed as part of the RI yielded various organic 44 CFR Part 206 primarily for information purposes and compounds and metals. RIN 3067±AC60 to assist Agency management. A Record of Decision (ROD), which EPA Region II will accept and selected a remedy for the Site, was Disaster Assistance; Restoration of evaluate public comments before signed in September 1984. The selected Damaged Facilities making a final decision to delete the remedy called for the off-site disposal of site. The Agency believes that deletion waste material, drums, lab packs and AGENCY: Federal Emergency procedures should focus on notice and contaminated soil, and ground water Management Agency (FEMA). comment at the local level. Comments monitoring for a five year period. In ACTION: Proposed rule. from the local community may be most April 1985, Morton International pertinent to deletion decisions. The Incorporated entered into an SUMMARY: This proposed rule would following procedures were used for the enforcement agreement with NJDEP for require that eligible costs associated intended deletion of the Site: performance of the selected remedy. with State and local repair or 1. NJDEP, as the lead agency, has Morton began implementation of the replacement standards (building codes), recommended deletion. selected remedy in May 1985. The which change the predisaster 2. EPA Region II concurred with the initial phases of the remedial program construction of a facility, be limited to deletion decision and has prepared the included the collection of soil samples the standards that are in place at the relevant documents. and digging of test pits in the disposal time of the disaster declaration date. 3. Concurrent with the Notice of areas to further define the extent of the The standards must be in writing and Intent to Delete, a notice has been disposal areas. Subsequent to the off-site formally adopted by the applicant or published in a local newspaper and has disposal of the waste and contaminated State on or before the disaster been distributed to appropriate Federal, soil, Morton conducted soil sampling to declaration date. The proposed rule State and local officials, and other determine whether the NJDEP- would become effective for disasters interested parties. established 1 milligram per kilogram declared one (1) year or more after the The comments received during the (mg/kg) cleanup criterion for publication of the final rule. comment period will be evaluated polychlorinated biphenyls (PCBs) had DATES: We invite comments on this before any final decision is made. EPA been achieved. PCBs were detected in proposed rule and will accept Region II will prepare a Responsiveness soil at levels exceeding the 1 mg/kg comments until December 24, 1996. Summary, if necessary, which will criterion, prompting further remedial ADDRESSES: Please send written address the comments received during action. comments to the Rules Docket Clerk, the public comment period. Removal of PCB-contaminated ‘‘hot Office of the General Counsel, Federal If after consideration of these spots’’ was conducted in August and Emergency Management Agency, 500 C comments, EPA decides to proceed with September 1989 and November 1990. Street SW., Washington, DC 20472, the deletion, the EPA Regional Removal of remaining PCB- (facsimile) (202) 646–4536. Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules 55263

FOR FURTHER INFORMATION CONTACT: and subsequently in closing out List of Subjects in 44 CFR Part 206 Gregory Ormsby, Engineer, Federal disasters. Disaster assistance, Public assistance. Emergency Management Agency, room After review of the statute and a Accordingly, 44 CFR part 206 is 713, 500 C Street SW., Washington, DC General Accounting Office (GAO) report proposed to be amended as follows: 20472, (202) 646–2726. entitled ‘‘Disaster Assistance: 1. The authority citation for part 206 Improvements Needed in Determining continues to read as follows: SUPPLEMENTARY INFORMATION: The Eligibility for Public Assistance’’ (GAO/ Robert T. Stafford Disaster Relief and RCED–96–113), which commented on Authority: The Robert T. Stafford Disaster Emergency Assistance Act (Stafford this provision in the regulations, FEMA Relief and Emergency Assistance Act, 42 Act), as amended, 42 U.S.C. 5121 et determined that its current U.S.C. 5121 et seq.; Reorganization Plan No. seq., authorizes the President to provide 3 of 1978, 43 FR 41943, 3 CFR, 1978 Comp., interpretation is not fully consistent p. 329; E.O. 12148, 44 FR 43239, 3 CFR, 1979 supplemental assistance to State and with Congressional intent. FEMA local governments and certain private Comp., p. 412; and E.O. 12673, 54 FR 12571, believes that the word ‘‘current’’ means 3 CFR, 1989 Comp., p. 214. nonprofit organizations after the at the time of the disaster and not at the President declares a major disaster. time of project approval. This is 2. Section 206.226 (b)(3) is proposed Section 406 of the Stafford Act, ‘‘Repair, consistent with Congressional intent. to be revised to read as follows: Restoration, and Replacement of Accordingly, FEMA proposes to § 206.226 Restoration of damaged Damaged Facilities,’’ authorizes the revise 44 CFR 206.226 (b)(3) to reflect facilities. President to fund the repair, restoration, this revised interpretation. The * * * * * reconstruction, or replacement of a proposed rule would become effective (b)(1) * * * damaged public facility or private for disasters declared one year or more (2) * * * nonprofit facility ‘‘. . . on the basis of after publication of the final rule. (3) Be in writing and formally adopted the design of the facility as it existed During this period, applicants will be by the applicant or State prior to the immediately prior to the major disaster encouraged to adopt improved building disaster declaration date or be a legal and in conformity with current codes before their next disaster. In this Federal requirement applicable to the applicable codes, specifications, and way, all those structures built between type of restoration; standards.’’ Under authority delegated the adoption of a code and the next by the President to FEMA, we have disaster will benefit from better * * * * * Dated: October 16, 1996. interpreted the phrase, ‘‘. . . in construction and have less damage. All conformity with current codes, other provisions of 44 CFR 206.226(b) James L. Witt, specifications, and standards . . .’’ to would remain unchanged. Director. mean those codes, specifications, and National Environmental Policy Act. [FR Doc. 96–27430 Filed 10–24–96; 8:45 am] standards that are officially adopted and This proposed rule would be BILLING CODE 6718±02±P implemented before project approval, categorically excluded from the that is, the date FEMA approves the preparation of environmental impact repair estimate for a specific facility. statements and environmental FEDERAL MARITIME COMMISSION This interpretation is codified at 44 CFR assessments as an administrative action 206.226(b)(3). in support of normal day-to-day grant 46 CFR Part 552 44 CFR 206.226(b)(3) allows activities. No environmental assessment [Docket No. 95±15] applicants to incorporate new codes and or environmental impact statement has standards in the eligible repair of been prepared. Availability of the Annual Financial and damaged facilities as well as the Regulatory Flexibility Act. A Operating Statements Filed by construction of new facilities. Damage regulatory impact analysis is in process Domestic Offshore Carriers to determine the effect of this rule on mitigation achieved by the new codes AGENCY: Federal Maritime Commission. would lessen the impact of future small communities. Paperwork Reduction Act. This rule ACTION: Proposed rule; withdrawal. disasters and reduce future Federal does not involve any collection of disaster expenditures. This change was information for the purposes of the SUMMARY: The Federal Maritime made from pre-Stafford Act regulations Paperwork Reduction Act. Commission (‘‘FMC’’ or ‘‘Commission’’ to encourage adoption of codes at a time Executive Order 12612, Federalism. In is withdrawing the proposed rule when there is a heightened awareness of promulgating this rule, FEMA has amending its regulations governing the the need for improved codes. considered the President’s Executive availability of the annual financial and Recently, FEMA has experienced Order 12612 on Federalism. This rule operating statements filed by vessel- several unintended consequences of this makes no changes in the division of operating common carriers by water interpretation of the law, which have governmental responsibilities between providing port-to-port services in the had negative impacts on the program. the Federal government and the States. domestic offshore trades, because We have experienced protracted delays Grant administration procedures in jurisdiction over such services has been in repairing eligible projects as accordance with 44 CFR Part 13, transferred to the Surface applicants debate the adoption of codes Uniform Administrative Requirements Transportation Board. and standards that will affect eligible for Grants and Cooperative Agreements FOR FURTHER INFORMATION CONTACT: damaged facilities and the amount of to State and Local Governments, remain Austin L. Schmitt, Director, Bureau of Federal assistance they will receive. the same. No Federalism assessment has Economics and Agreement Analysis, After adopting new codes and been prepared. Federal Maritime Commission, 800 standards, there have been protracted Executive Order 12778, Civil Justice North Capitol Street, N.W., discussions with FEMA regarding the Reform. This rule meets the applicable Washington, D.C. 20573–0001, 202– applicability of the new codes and standards of section 2(b)(2) of Executive 523–5787. standards to the damaged facilities. Order 12778, Civil Justice Reform, dated Robert D. Bourgoin, General Counsel, These actions have resulted in extensive October 25, 1991, 3 CFR, 1991 Comp., Federal Maritime Commission, 800 delays in repairing damaged facilities p. 359. North Capitol Street, N.W., 55264 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules

Washington, D.C. 20573–0001, 202– approach to performance measurement SUPPLEMENTARY INFORMATION: 523–5740. reporting as a result of discussions with Background SUPPLEMENTARY INFORMATION: other Government agencies and industry. Revisions to the NASA NASA is updating its requirements for The Commission previously performance measurement requirements contractor financial management reporting in order to comply with the published a Notice of Proposed will be published at a later date. The Chief Financial Officers Act of 1990, Rulemaking (60 FR 53572) in this revised coverage gives regulatory effect obtain complete, timely and accurate proceeding seeking comments on to the publication of revised guidance allowing limited access to the annual project cost information, and implement on NASA Contractor Financial financial and operating statements filed changes in the responsibilities and Management Reporting in NASA by ocean common carriers providing authorities of both NASA Headquarters Procedures and Guidelines (NPG) port-to-port services in the domestic and subordinate organizational offshore trades. The ICC Termination 9501.2; provides for approval of elements. Act of 1995, Pub. L. No. 104–88, 109 exceptions from the standard reporting The Chief Financial Officers Act of Stat. 803 (‘‘ICC Termination Act’’), has requirements set forth in the NPG at 1990 requires that NASA publish since transferred jurisdiction over such NASA Centers, rather than at audited annual financial statements. services, which had formerly been Headquarters; permits waiver of NF This requirement has placed additional regulated by the FMC under the 533Q reporting for certain contracts emphasis on the need for timely and Intercoastal Shipping Act, 1933, 46 where NF 533M reporting provides accurate contract cost data to ensure the U.S.C. app. 843–848 (‘‘1933 Act’’), to the adequate information; encourages the accuracy of NASA accounting Surface Transportation Board (‘‘Board’’), submission of reports earlier than the information. and provides that such services are required due dates whenever feasible; NASA’s guidance for contractor subject to rate regulation by the Board. and permits the use of alternative due financial management reporting, NPG Accordingly, no further Commission dates, but only when data will be 9501.2, has been revised to clarify action in this proceeding is appropriate received in time for use in NASA’s reporting requirements, address and the proposed rule is withdrawn. monthly cost accrual process. The time problems and questions that have arisen over time, and reassign responsibilities By the Commission. period for submission of the initial report is extended from 10 to 30 days and authorities to permit more effective Joseph C. Polking, operations in today’s environment. Secretary. after authorization to proceed has been granted. Contracting officers are given Training on NASA’s expectations for [FR Doc. 96–27417 Filed 10–24–96; 8:45 am] additional options to direct the contractor financial management BILLING CODE 6730±01±M contractor to report only when actual reporting has been presented to all cost changes occur or suspend reporting NASA contractors holding cost- reimbursement contracts over the past altogether when the contract effort is NATIONAL AERONAUTICS AND two years, and contractors have completed and NASA has accepted all SPACE ADMINISTRATION informally reviewed and commented contract line items. Prime contractors upon the revised guidance. These 48 CFR Parts 1842 and 1852 are no longer required to use NASA changes to the NFS recognize the Forms 533 for subcontractor reporting, modified NPG 9501.2 and provide Revision to NASA FAR Supplement but must ensure that their NF 533 complimentary coverage. Coverage on Contractor Financial reports include accurate and timely Based upon discussions with other Management Reporting subcontractor cost data. The revised Government agencies and industry AGENCY: Office of Procurement, Contract procedures will be required to be used representatives, NASA has eliminated Management Division, National on all new contracts issued after the the Monthly Contractor Financial Aeronautics and Space Administration proposed regulations are adopted as a Management Performance Report, NF (NASA). final rule. Existing contracts at that time 533P, from the NASA Contractor ACTION: Notice of Proposed rulemaking. will not require modification to Financial Management Reporting incorporate the changes unless: system. The agency is revising its SUMMARY: Changes are proposed to requested by the contractor; there is a approach to performance measurement, update the NASA FAR Supplement demonstrated cost savings; or there will or earned value, reporting to make it (NFS) coverage on contractor financial be no cost for implementation. more consistent with Department of management reporting to make it Defense requirements and existing DATES: Comments must be received on compatible with current NASA contractor systems. reporting policy, including accounting or before November 25, 1996. Change Highlights requirements imposed by the Chief ADDRESSES: Submit comments to Larry Financial Officers Act of 1990, the need G. Pendleton, Contract Management The following revisions eliminate the for complete, timely and accurate Division (Code HK), Office of use of the Monthly Contractor Financial project cost information and Procurement, NASA Headquarters, Management Performance Analysis reassessment of the appropriate level of Washington, DC 20546. Comments on Report, NASA Form 533P. The contract responsibility and authority in the paperwork burden should be clause at 1852.242–74 which required accordance with Government addressed to the Office of Information use of NF 533P is deleted. Exceptions downsizing initiatives. and Regulatory Affairs, Office of from the standard reporting The revised NFS coverage eliminates Management and Budget, Attention: requirements are authorized to be requirements for use of the Monthly Desk Officer for NASA, Washington, DC approved at NASA Centers rather than Contractor Financial Management 20503. at NASA Headquarters. The time period Performance Analysis Report, NASA for submission of the initial report is Form 533P, and the clause included in FOR FURTHER INFORMATION CONTACT: Mr. extended from 10 to 30 days after 1852.242–74. NASA no longer uses the Larry G. Pendleton, NASA contract authorization to proceed has NF 533P format and is revising its Headquarters, Code HK, (202) 358–0487. been granted. Prime contractors are no Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules 55265 longer required to use NASA Forms 533 Title: Monthly Contractor Financial 1. The authority citation for 48 CFR for subcontractor reporting, but must Management Performance Analysis Parts 1842 and 1852 continues to read ensure that their NF 533 reports include Report. as follows: Summary: This report provided accurate and timely subcontractor cost Authority: U.S.C. 2473(c)(1). data. NASA project management with a timely and comprehensive assessment PART 1842ÐCONTRACT Regulatory Flexibility Act of the contractor’s performance over the ADMINISTRATION reporting period, including cost, NASA certifies that these regulation technical and schedule status. changes will not have a significant Notice: Comments on the elimination Subpart 1842.72ÐNASA Contractor economic impact on a substantial of this report may be submitted to the Financial Management Reporting number of small entities under the OMB address shown under ADDRESSEES. Regulatory Flexibility Act (5 U.S.C. 601 1842.7201 [Amended] et seq.). List of Subjects in 48 CFR Parts 1842 2. In paragraph (b)(1) to section and 1852 Paperwork Reduction Act 1842.7201, the graphics box containing Government procurement. reporting criteria and report format is This rule proposes to eliminate the Tom Luedtke, revised to read as follows: following report that was approved by Deputy Associate Administrator for the Office of Management and Budget Procurement. (OMB) and assigned OMB Control Accordingly, 48 CFR 1842 and 1852 Number 2700–0003. are proposed to be amended as follows:

Criteria Report Format Contract Value/Scope Period of Performance 533M 533Q

$500K to $999K ...... 1 Year or More ...... Required ...... Optional. $1,000,000 and Over ...... 1 Less than 1 Year ...... Required ...... Optional. $1,000,000 and Over ...... 1 Year or More ...... Required ...... Required.

3. In paragraph (b)(2) to section 5. In section 1842.7201, the existing require approval in accordance with 1842.7201, the phrase ‘‘as initially paragraph (c) is redesignated as a new 1801.471, and the concurrence of the awarded.’’ is revised to read ‘‘, based on paragraph (b)(5), and paragraphs (d) and Director, Financial Management the estimated final contract value at the (e) are redesignated as paragraphs (c) Division and the official-in-charge of the time of award.’’ and (d) and are revised to read as cognizant Headquarters Program Office. 4. In section 1842.7201, paragraph follows: 6. Section 1842.7202 is revised to read (b)(3) is revised and a new paragraph (c) Contract requirements. (1) as follows: (b)(4) is added to read as follows: Reporting requirements, including a 1842.7202 Contract clauses. description of reporting categories, shall 1842.7201 General. be detailed in the procurement request, The clause at 1852.242–73, NASA (a) * * * and reports shall be required by Contractor Financial Management (b) * * * inclusion of the clause in 1842.7202. the Reporting, shall be used when any of (3) NF 533Q reporting may be waived contract schedule shall include report the NASA Form 533 reports are required by the Contracting Officer, with the addressees and numbers of copies. from the contractor. concurrence of the Center Chief Reporting categories shall be 1852ÐSOLICITATION PROVISIONS Financial Officer and cognizant Project coordinated with the Center Financial AND CONTRACT CLAUSES Manager, for support service or task Management Office to ensure that data order contracts, when NF 533M reports required for agency cost accounting will 7. Section 1852.242–73 is revised to and other data are sufficient to ensure be provided by the reports. Reporting read as follows: accurate monthly cost accruals, evaluate dates shall be in accordance with NPG the contractor’s cost performance and 9501.2, except that earlier submission is 1852.242±73 NASA Contractor Financial Management Reporting. forecast resource requirements. encouraged wherever feasible. No due (4) Where a specific contractual date shall be permitted which is later As prescribed in 1842.7202, insert the requirement differs from the standard than the date by which the Center following clause in contracts that system set forth in NPG 9501.2, NASA Financial Management Office needs the require submission of NASA Form Contractor Financial Management data to enter an accurate monthly cost 533M or 533Q reports. Reporting, but is determined to be in the accrual in the accounting system. NASA Contractor Financial best interests of the Government and (2) The contractor shall be required to Management Reporting does not eliminate any of the data submit an initial report in the NF 533Q elements required by the standard NF format, time phased for the expected life August 1996. 533 formats, it may be approved by the of the contract, within 30 days after (a) The Contractor shall submit NASA Contracting Officer with the authorization to proceed has been Contractor Financial Management Reports on concurrence of the Center Chief granted. NF 533M reporting will begin NASA Forms 533 in accordance with the instructions in NASA Contractor Financial Financial Officer and cognizant Project no later than 30 days after incurrence of Manager. Such approval shall be Management Reporting (NPG 9501.2) and on cost. NF 533Q reporting begins with the the reverse side of the forms, as documented and retained, with the initial report. supplemented in the Schedule of this supporting rationale, in the contract file. (d) Deviations. Deviations from the contract. The detailed reporting categories to * * * * * financial management reporting clause be used, which shall correlate with technical 55266 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules and schedule reporting, shall be set forth in the Schedule. Contractor implementation of reporting requirements under this clause shall include NASA approval of the definitions of the content of each reporting category and give due regard to the Contractor’s established financial management information system. (b) Lower level detail used by the Contractor for its own management purposes to validate information provided to NASA shall be compatible with NASA requirements. (c) Reports shall be submitted in the number of copies, at the time, and in the manner set forth in the Schedule or as directed in writing by the Contracting Officer. Upon completion and acceptance by NASA of all contract line items, the Contracting Officer may direct the Contractor to submit Form 533 reports on a quarterly basis only, report only when changes in actual cost occur, or suspend reporting altogether. (d) The Contractor shall ensure that its NF 533 reports include accurate subcontractor cost data, in the proper reporting categories, for the reporting period. (e) If, during the performance of this contract, NASA requires a change in the information or reporting requirements specified in the Schedule, or as provided for in paragraph (a) or (c) of this clause, the Contracting Officer shall effect that change in accordance with the Changes clause of this contract. (End of clause) 1852.242±74 [Removed] 8. Section 1852.242–74 is removed. [FR Doc. 96–26336 Filed 10–24–96; 8:45 am] BILLING CODE 7510±01±M 55267

Notices Federal Register Vol. 61, No. 208

Friday, October 25, 1996

This section of the FEDERAL REGISTER Dated: October 21, 1996. 2. The action does not appear to have contains documents other than rules or David R. Shipman, a severe economic impact on current proposed rules that are applicable to the Acting Administrator. contractors for the commodities and public. Notices of hearings and investigations, service. committee meetings, agency decisions and [FR Doc. 96–27461 Filed 10–24–96; 8:45 am] rulings, delegations of authority, filing of BILLING CODE 3410±EN±P 3. The action will result in petitions and applications and agency authorizing small entities to furnish the statements of organization and functions are commodities and service to the examples of documents appearing in this COMMITTEE FOR PURCHASE FROM Government. section. PEOPLE WHO ARE BLIND OR 4. There are no known regulatory SEVERELY DISABLED alternatives which would accomplish DEPARTMENT OF AGRICULTURE Procurement List Additions the objectives of the Javits-Wagner- O’Day Act (41 U.S.C. 46–48c) in Grain Inspection, Packers and AGENCY: Committee for Purchase From connection with the commodities and Stockyards Administration People Who Are Blind or Severely service proposed for addition to the Disabled. Procurement List. Advisory Committee Meeting ACTION: Additions to the Procurement Accordingly, the following Pursuant to the provisions of section List. commodities and service are hereby added to the Procurement List: 10(a)(2) of the Federal Advisory SUMMARY: This action adds to the Committee Act (Pub. L. 92–463), notice Procurement List commodities and a Commodities is hereby given of the following service to be furnished by nonprofit Kit, Pre-Inked Stamps committee meeting: agencies employing persons who are 7520–00–NIB–1099 (.375′′ x 1′′) NAME: Grain Inspection Advisory blind or have other severe disabilities. 7520–00–NIB–1105 (1.25′′ x 2′′) Committee. EFFECTIVE DATE: November 25, 1996. 7520–00–NIB–1107 (16 piece holder) DATES: November 19–20, 1996. ADDRESSES: Committee for Purchase 7520–00–NIB–1090 (16 piece basic or From People Who Are Blind or Severely personal) PLACE: Holiday Inn, Kansas City Disabled, Crystal Square 3, Suite 403, Airport, 11832 Plaza Circle, Kansas City, (Requirements for the U.S. Postal Service) 1735 Jefferson Davis Highway, MO. Stamp, Custom, Pre-inked Arlington, Virginia 22202–3461. 7520–01–381–8057 TIME: 8:30 a.m. November 19–20. FOR FURTHER INFORMATION CONTACT: 7520–01–381–8075 PURPOSE: To provide advice to the Beverly Milkman (703) 603–7740. 7520–01–381–8054 Administrator of the Grain Inspection, SUPPLEMENTARY INFORMATION: On May 7520–01–381–8037 Packers and Stockyards Administration 31 and September 6, 1996, the 7520–01–381–8074 (GIPSA) with respect to the Committee for Purchase From People 7520–01–381–8063 implementation of the U.S. Grain Who Are Blind or Severely Disabled 7520–01–352–7312 Standards Act (7 U.S.C. 71 et seq.). published notices (61 FR 27339 and 7520–01–368–7774 The agenda includes: (1) GIPSA 47113) of proposed additions to the 7520–01–381–8012 Financial Status, (2) Test Weight Procurement List. 7520–01–381–8027 Conversion Project Report, (3) After consideration of the material 7520–01–419–6746 Implementation of the New Fees for presented to it concerning capability of 7520–01–419–6743 Inspection and Weighing Services, (4) qualified nonprofit agencies to provide 7520–01–419–6744 Networking Official Agencies, (5) the commodities and service and impact 7520–01–381–7995 7520–01–381–7993 Automation of Grain Inspection of the additions on the current or most 7520–01–381–8017 Functions, (6) Adoption of New Official recent contractors, the Committee has 7520–01–357–6847 Moisture Meter, and (7) SRW Research determined that the commodities and 7520–01–357–6846 Needs. service listed below are suitable for 7520–01–419–6744 The meeting will be open to the procurement by the Federal Government 7510–01–381–8070 public. Public participation will be under 41 U.S.C. 46–48c and 41 CFR 51– 7510–01–381–8072 limited to written statements, unless 2.4. 7510–01–381–8041 permission is received from the I certify that the following action will 7510–01–381–8032 Committee Chairman to address the not have a significant impact on a 7510–01–368–3504 Committee orally. Persons, other than substantial number of small entities. 7510–01–381–8062 members, who wish to address the The major factors considered for this Committee or submit written statements certification were: (Requirements for the U.S. Postal Service) before or after the meeting, should 1. The action will not result in any Service contact the Administrator, GIPSA, U.S. additional reporting, recordkeeping or Disposal Support Services Department of Agriculture, 1400 other compliance requirements for small Gunter Air Force Base and Fort Rucker, Independence Avenue, SW, STOP 3601, entities other than the small Alabama Washington, D.C. 20250–3601, organizations that will furnish the telephone (202) 720–0219 or FAX (202) commodities and service to the This action does not affect current 205–9237. Government. contracts awarded prior to the effective 55268 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices date of this addition or options that may the objectives of the Javits-Wagner- DEPARTMENT OF COMMERCE be exercised under those contracts. O’Day Act (41 U.S.C. 46–48c) in Beverly L. Milkman, connection with the commodities and Foreign-Trade Zones Board Executive Director. services proposed for addition to the [DOCKET 32±96] [FR Doc. 96–27438 Filed 10–24–96; 8:45 am] Procurement List. BILLING CODE 6353±01±P Comments on this certification are Foreign-Trade Zone 31ÐGranite City, invited. Commenters should identify the Illinois; Application for Subzone, Shell Oil Company (Oil Refinery Complex), statement(s) underlying the certification Madison County, Illinois Procurement List Proposed Additions on which they are providing additional AGENCY: Committee for Purchase From information. Notice is hereby given that the People Who Are Blind or Severely The following commodities and application of the Tri-City Port District, Disabled. services have been proposed for grantee of FTZ 31, requesting special- ACTION: Proposed Additions to addition to Procurement List for purpose subzone status for the oil Procurement List production by the nonprofit agencies refinery complex of Shell Oil Company, listed: in Madison County, Illinois (Doc. 32–96, SUMMARY: The Committee has received 61 FR 18379, 4/25/96) has been proposals to add to the Procurement List Commodities amended to include two additional commodities and services to be sites. furnished by nonprofit agencies Cord, Nylon The original application indicated employing persons who are blind or 4020–00–240–2146 that the refinery complex consisted of 3 NPA: East Texas Lighthouse for the Blind, sites and related pipelines in Madison have other severe disabilities. Tyler, Texas County, Illinois, some 25 miles east of COMMENTS MUST BE RECEIVED ON OR Cap, Garrison BEFORE: November 25, 1996. 8410–01–381–5481 St. Louis, Missouri. The amendment ADDRESS: Committee for Purchase From 8410–01–381–5559 includes two additional sites (Proposed People Who Are Blind or Severely 8410–01–381–5544 Sites 4 and 5) that were inadvertantly Disabled, Crystal Square 3, Suite 403, 8410–01–381–5566 omitted from the application: Site 4 (60 1735 Jefferson Davis Highway, 8410–01–381–5521 acres)—docking facility located one Arlington, Virginia 22202–3461. 8410–01–381–5536 mile east of the main refinery complex on the Mississippi River; and Site 5 FOR FURTHER INFORMATION CONTACT: 8410–01–381–5507 (270,000 barrel capacity)—LPG terminal Beverly Milkman (703) 603–7740. 8410–01–381–5612 8410–01–381–5627 and storage facility leased from Amoco SUPPLEMENTARY INFORMATION: This 8410–01–381–5647 Chemicals Corporation, located on notice is published pursuant to 41 8410–01–381–5504 Illinois Highway 111 adjacent to the U.S.C. 47(a)(2) and 41 CFR 51–2.3. Its NPA: Goodwill Industries of South Florida, refinery. purpose is to provide interested persons Inc., Miami, Florida A copy of the application and the an opportunity to submit comments on amendment and accompanying exhibits the possible impact of the proposed Services are available for public inspection at actions. Administrative Services each of the following locations: If the Committee approves the General Services Administration, PBS, U.S. Department of Commerce Export proposed additions, all entities of the Northwest/Arctic Region Assistance Center, Suite 303, 8182 Federal Government (except as NPA: Portland Habilitation Center, Portland, Maryland Avenue, St. Louis, Missouri otherwise indicated) will be required to Oregon 63105. procure the commodities and services Janitorial/Custodial Office of the Executive Secretary, listed below from nonprofit agencies Buildings 1017, 1018, 1019, 1020, 37506, Foreign-Trade Zones Board, Room employing persons who are blind or 37507 and 37508 Kirtland Air Force 3716, U.S. Department of Commerce, have other severe disabilities. I certify Base, New Mexico 14th & Pennsylvania Avenue, NW, that the following action will not have NPA: Adelante Development Center, Inc., Washington, DC 20230. a significant impact on a substantial Albuquerque, New Mexico number of small entities. The major Janitorial/Custodial Dated: October 16, 1996. factors considered for this certification Naval Reserve Readiness Center, Seattle, John J. Da Ponte, Jr., were: Washington Executive Secretary. 1. The action will not result in any NPA: Community Psychiatric Clinic, Seattle, [FR Doc. 96–27359 Filed 10–24–96; 8:45 am] Washington additional reporting, recordkeeping or BILLING CODE 3510±DS±P other compliance requirements for small Laundry Service entities other than the small Yakima Training Center, Yakima, organizations that will furnish the Washington [Docket 76±96] commodities and services to the NPA: Yakima Specialties, Inc., Yakima, Washington Foreign-Trade Zone 176ÐRockford, IL; Government. Mailroom Operation Application for Subzone Status, Nissan 2. The action does not appear to have Department of Health and Human Services, Industrial Engine Manufacturing USA, a severe economic impact on current Gateway Building, Philadelphia, Inc., Plant (Spark Ignition Industrial contractors for the commodities and Pennsylvania Engines), Marengo, IL services. NPA: A.C.E. Industries, Inc., Exton, 3. The action will result in Pennsylvania An application has been submitted to authorizing small entities to furnish the the Foreign-Trade Zones Board (the Beverly L. Milkman, commodities and services to the Board) by the Greater Rockford Airport Government. Executive Director. Authority, grantee of FTZ 176, 4. There are no known regulatory [FR Doc. 96–27439 Filed 10–24–96; 8:45 am] requesting special-purpose subzone alternatives which would accomplish BILLING CODE 6353±01±P status for the spark ignition industrial Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices 55269 engine manufacturing plant of Nissan may be submitted during the subsequent that critical circumstances exist with Industrial Engine Manufacturing USA, 15-day period (to January 8, 1997). respect to imports of brake drums and Inc. (NIEM) (a Nissan Kohki Co., Ltd./ A copy of the application and the brake rotors. In accordance with 19 CFR Nissan Forklift Corporation, North accompanying exhibits will be available 353.16(b)(2)(ii), since these allegations America joint venture), located in for public inspection at each of the were filed later than 20 days before the Marengo, Illinois. The application was following locations: scheduled date of the preliminary submitted pursuant to the provisions of U.S. Export Assistance Center—Branch determinations, we must issue our the Foreign-Trade Zones Act, as Office, P.O. Box 1747, 515 North preliminary critical circumstances amended (19 U.S.C. 81a–81u), and the Court Street, Rockford, IL 61110. determinations not later than 30 days regulations of the Board (15 CFR Part Office of the Executive Secretary, after the allegations were submitted. 400). It was formally filed on October Foreign-Trade Zones Board, U.S. Section 733(e)(1) of the Act provides 16, 1996. Department of Commerce, Room that the Department will determine that The NIEM plant (11 acres/66,000 3716, 14th Street & Pennsylvania there is a reasonable basis to believe or sq.ft.) is located at 19720 East Grant Avenue, NW, Washington, DC 20230– suspect that critical circumstances exist Highway (U.S. 20) in Marengo 0002. if: (McHenry County), some 66 miles west (A)(i) there is a history of dumping of Chicago, Illinois. The plant (28 Dated: October 17, 1996. and material injury by reason of employees) is used to produce spark John J. Da Ponte, Jr., dumped imports in the United States or ignition industrial engines (ranging from Executive Secretary. elsewhere of the subject merchandise, or 40 to 70 hp) used in forklift trucks, [FR Doc. 96–27360 Filed 10–24–96; 8:45 am] (ii) the person by whom, or for whose construction equipment, generators, BILLING CODE 3510±DS±P account, the merchandise was imported welders, and irrigation equipment knew or should have known that the (HTS# 8407.90.1010) for export and the exporter was selling the subject domestic market. Most of the finished International Trade Administration merchandise at less than its fair value engines are shipped to U.S. forklift truck [A±570±845, A±570±846] and that there was likely to be material manufacturers. The production process injury by reason of such sales, and involves assembly, testing, and Preliminary Determinations of Critical (B) there have been massive imports warehousing. Components purchased Circumstances: Brake Drums and of the subject merchandise over a from abroad (about 72% of total, by Brake Rotors from the People's relatively short period. value) include: crankcases (blocks), Republic of China cylinder heads, intake/exhaust Brake Drums manifolds, balancer shafts, connecting AGENCY: Import Administration, History of Dumping and Importer rods, piston sets, crankshafts, rocker International Trade Administration, Knowledge arms, intake/exhaust valves, bearings, Department of Commerce (a) Selected respondents. To housings, flywheels, pulleys, gaskets, EFFECTIVE DATE: October 25, 1996. camshafts, timing chains, water pumps, determine whether there is a history of FOR FURTHER INFORMATION CONTACT: dumping of the merchandise under magnetos, fasteners, spark plugs, gauges, Brian C. Smith or Michelle A. Frederick, electrical components, thermostats, oil investigation, the Department normally Import Administration, International considers evidence of an existing filters, hoses and plastic molded parts Trade Administration, U.S. Department (duty rate range: 0.4–9.1%). The antidumping order on brake drums in of Commerce, 14th Street and application indicates that U.S.-sourced the United States or elsewhere to be Constitution Avenue, N.W., components will comprise some 29 sufficient. Currently, there are no Washington, D.C. 20230; telephone: percent of the finished engines’ value antidumping orders on brake drums (202) 482–1766 or (202) 482–0186, within three years. from the PRC. Therefore, there is no Zone procedures would exempt NIEM respectively. history of dumped imports of brake from Customs duty payments on the SUPPLEMENTARY INFORATION: drums from the PRC. In determining foreign components used in export whether an importer knew or should The Applicable Statute production. On its domestic sales, the have known that the exporter was company would be able to choose the Unless otherwise indicated, all selling the brake drums at less than fair duty rate that applies to finished citations to the statute are references to value and thereby causing material industrial engines (duty free) for the the provisions effective January 1, 1995, injury, the Department normally foreign inputs noted above. The the effective date of the amendments considers margins of 15 percent or more application indicates that subzone made to the Tariff Act of 1930 (the Act) sufficient to impute knowledge of status would help improve the plant’s by the Uruguay Rounds Agreements dumping and of resultant material international competitiveness. Act. injury for constructed export price (CEP) In accordance with the Board’s sales, and margins of 25 percent or more Preliminary Determinations of Critical regulations, a member of the FTZ Staff for export price (EP) sales. See, e.g., Circumstances has been designated examiner to Final Preliminary Critical investigate the application and report to On October 3, 1996, the Department Circumstances Determination: Honey the Board. of Commerce (the Department) from the People’s Republic of China Public comment on the application is preliminarily determined, pursuant to (PRC), 60 FR 29824 (June 6, 1995) invited from interested parties. section 733 of the Act, that brake drums (Honey). Submissions (original and three copies) and brake rotors from the People’s Since the company-specific margins shall be addressed to the Board’s Republic of China (PRC) are being, or for EP sales in our preliminary Executive Secretary at the address are likely to be, sold in the United States determination for brake drums are below. The closing period for their at less than fair value (61 FR 53190 below 25 percent for China National receipt is December 24, 1996. Rebuttal (October 10, 1996)). On September 18, Machinery Import & Export Corporation; comments in response to material 1996, the petitioner alleged that there is Yantai Import & Export Corporation; submitted during the foregoing period a reasonable basis to believe or suspect Qingdao Metals & Machinery Import & 55270 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices

Export Corporation (Qingdao); and For all firms not named above, we due to the Department’s own Beijing Xinchangyuan Automobile find that critical circumstances do exist administrative constraints. Therefore, Fittings Corporation, Ltd., we have not with respect to brake drums from the we do not believe it is appropriate to imputed knowledge of dumping and PRC. find critical circumstances with regard injury with respect to these four to these companies not selected for Brake Rotors selected respondents. Therefore, we analysis. This is the approach we took have not analyzed the shipment data for History of Dumping and Importer in Honey. See 60 FR at 29826. these companies and find that critical Knowledge (c) China-wide companies. For companies subject to the China-wide circumstances do not exist with respect (a) Selected respondents. To rate, we are imputing knowledge of to these four companies. determine whether there is a history of dumping based on the China-wide rate (b) Non-selected respondents. The dumping of the merchandise under (which is above 25 percent). See id. Department is not analyzing data for investigation, the Department normally certain cooperative respondents due to considers evidence of an existing Massive Imports the Department’s own administrative antidumping order on brake drums in constraints. Therefore, we do not For the cooperating selected the United States or elsewhere to be respondents (except for Shenyang/ believe it is appropriate to find critical sufficient. Currently, there are no circumstances with regard to these Laizhou and Southwest) and antidumping orders on brake rotors cooperating non-selected respondents, it companies not selected for analysis. from the PRC. Therefore, there is no This is the approach we took in Honey, is not necessary to consider whether history of dumped imports of brake there have been massive imports since 60 FR at 29826. rotors from the PRC. In determining (c) China-wide companies. For we found there was no history of whether an importer knew or should dumping or importer knowledge. companies subject to the China-wide have known that the exporter was rate, we are imputing knowledge of However, for Shenyang/Laizhou and selling the brake rotors at less than fair Southwest, because there is importer dumping based on the China-wide rate value and thereby causing material (which is above 25 percent). See id. knowledge of dumping and resultant injury, the Department normally injury, we have examined whether there Massive Imports considers margins of 15 percent or more were massive imports of brake rotors by sufficient to impute knowledge of For cooperating selected respondents these two companies. dumping and of resultant material and cooperating non-selected When examining the volume and injury for constructed export price (CEP) respondents, it is not necessary to value data, the Department typically sales, and margins of 25 percent or more consider whether there have been compares the export volume for equal for export price (EP) sales. massive imports since we found there periods immediately preceding (i.e., the Since the company-specific margins pre-filing period) and following (i.e., the was no history of dumping or importer in the preliminary determination for post-filing period) the filing of the knowledge. For companies subject to brake rotors are below 15 percent for petition. Under 19 CFR 353.16(f)(2), the China-wide rate (i.e., companies CAIEC/CAPCO’s CEP sales and 25 unless the imports in the post-filing which did not respond to the percent for CAIEC/CAPCO’s EP sales, period have increased by at least 15 Department’s questionnaire and and below 25 percent for EP sales of percent over the imports during the pre- companies which responded but were Yantai Import & Export Corporation and filing period, we will not consider the preliminarily denied separate rates), we China National Machinery and imports to have been ‘‘massive.’’ In determine, based on the facts available Equipment Import & Export (Xinjiang) order to determine whether there have in accordance with section 776(a) of the Corporation, Ltd., we have not imputed been massive imports of brake rotors for Act, that there were massive imports of knowledge of dumping and injury with the companies for which we have brake drums. See id. Therefore, we respect to these three selected determined that there is knowledge of preliminarily determine that critical respondents. Therefore, we have not dumping and material injury, we circumstances exist with regard to these analyzed the shipment data for these compared shipments from August 1995 companies. companies, and find that critical to February 1996 (the pre-filing period) Conclusion circumstances do not exist for their to shipments from March 1996 to We find that critical circumstances do sales of brake rotors. September 1996 (the post-filing period). not exist for brake drum sales by the Since the company-specific margins The data we received indicates that the following PRC firms: in our preliminary determination for increase in Southwest’s shipment of brake rotors are above 15 percent for the brake rotors to the United States during China National Machinery Import & Export CEP sales of Shenyang Honbase the post-filing period did not increase Corporation Machinery Corporation, Ltd., Laizhou by more than 15 percent. Therefore, we Yantai Import & Export Corporation Luyuan Automobile Fittings Qingdao Metals & Machinery Import & preliminarily find that critical Export Corporation Corporation, Ltd. (collectively circumstances do not exist with respect Beijing Xinchangyuan Automobile Fittings Shenyang/Laizhou) and Southwest to sales of brake rotors by Southwest. Corporation, Ltd. Technical Import & Export Corporation, However, Shenyang/Laizhou’s shipment China National Automotive Industry Import Yangtze Machinery Corporation, and of brake rotors to the United States & Export Corporation, Shandong Laizhou MMB International, Inc. (collectively during the post-filing period did CAPCO Machinery Co., Ltd., and CAPCO Southwest), and above 25 percent for EP increase by more than 15 percent. International USA (collectively CAIEC/ sales of Southwest, we have determined For companies subject to the China- CAPCO) that there is knowledge of dumping and wide rate (i.e., companies which did not Jiuyang Enterprise Corporation of material injury with respect to these respond to the Department’s Hebei Metals and Machinery Import & Export Corporation two selected firms. questionnaire and companies which Longjing Walking Tractor Works Foreign (b) Non-selected respondents. As responded but were preliminarily Trade Import & Export Corporation stated above with respect to brake denied separate rates), we determine, Shanxi Machinery and Equipment Import & drums, the Department is not analyzing based on the facts available in Export Corporation data for certain cooperative respondents accordance with section 776(a) of the Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices 55271

Act, that there were massive imports of 60 FR at 29826). Therefore, we ACTION: Notice of extension of time limit brake rotors. See id. Therefore, we preliminarily determine that critical of antidumping duty administrative preliminarily determine that critical circumstances exist with regard to these review. circumstances exist with regard to these companies. companies. SUMMARY: The Department of Commerce Suspension of Liquidation (the Department) is extending the time Other Factors In accordance with section 733(e)(2) limit for preliminary results in the Selected respondents. Our analysis of the Act, we are directing the Customs administrative review of the pursuant to 19 CFR 353.16(f)(1)(ii) Service to suspend liquidation of all antidumping duty order on color picture indicates no evidence that seasonal entries of brake drums from PRC firms tubes (CPTs) from Japan, covering the trends were a significant factor leading found to have critical circumstances period January 1, 1995, through to the increase in Shenyang/Laizhou’s that are entered, or withdrawn from December 31, 1995, because it is not shipments. We were unable to consider warehouse, for consumption on or after practicable to complete the review the share of U.S. consumption July 12, 1996 (i.e., 90 days prior to the within the time limits mandated by the represented by Shenyang/Laizhou, date of publication of our preliminary Tariff Act of 1930 (the Act), as amended, because we have insufficient determination in the Federal Register). 19 U.S.C. 1675(a)(3)(A). information with regard to the For brake rotors, we are directing the EFFECTIVE DATE: October 25, 1996. Shenyang/Laizhou’s market share of Customs Service to suspend liquidation FOR FURTHER INFORMATION CONTACT: U.S. domestic consumption. Because we of all entries of brake rotors from Charles Riggle or Kris Campbell, Import have determined that Shenyang/ Shenyang/Laizhou and all other PRC Administration, International Trade Laizhou’s purchasers knew or should firms found to have critical Administration, U.S. Department of have known that Shenyang/Laizhou was circumstances that are entered, or Commerce, 14th and Constitution dumping brake rotors and thereby withdrawn from warehouse, for Avenue, N.W., Washington, D.C. 20230, causing injury, and because Shenyang/ consumption on or after July 12, 1996 telephone: (202) 482–4733. Laizhou had massive imports over a (i.e., 90 days prior to the date of relatively short period of time, we publication of our preliminary Applicable Statute preliminarily determine that critical determination in the Federal Register). Unless otherwise indicated, all circumstances exist with respect to The Customs Service shall require a citations to the Act are references to the Shenyang/Laizhou’s sales of brake cash deposit or posting of a bond equal provisions effective January 1, 1995, the rotors to the United States. to the estimated preliminary dumping effective date of the amendments made Conclusion margins reflected in the preliminary to the Act by the Uruguay Round determinations which were published Agreement Act. We find that critical circumstances do in the Federal Register. This suspension not exist for the following PRC brake of liquidation will remain in effect until SUPPLEMENTARY INFORMATION: rotors firms: further notice. Background China National Automotive Industry Import On February 20, 1996, the Department & Export Corporation, Shandong Laizhou Final Critical Circumstances CAPCO Machinery Co., Ltd., and CAPCO Determinations initiated an administrative review of the antidumping duty order on CPTs from International USA (collectively CAIEC/ We will make final determinations Japan covering the period January 1, CAPCO) concerning critical circumstances when Yantai Import & Export Corporation 1995, through December 31, 1995 (61 FR we make our final determinations of Southwest Technical Import & Export 6347). In our notice of initiation we sales at less than fair value in these Corporation, Yangtze Machinery stated that we intended to issue the final investigations, which will be by Corporation, and MMB International, Inc. results of this review not later than (collectively Southwest) February 24, 1997. China National Machinery and Equipment January 31, 1997. ITC Notification Import & Export (Xinjiang) Corporation, Postponement of Preliminary Results of Ltd. In accordance with section 733(f) of Review Qingdao Metals & Machinery Import & the Act, we have notified the ITC of our Export Corporation determinations. Section 751(a)(3)(A) of the Act Xianghe Zichen Casting Corporation requires the Department to issue Jiuyang Enterprise Corporation These determinations are published pursuant to section 733(f) of the Act. preliminary results within 245 days Hebei Metals and Machinery Import & Export after the last day of the anniversary Corporation Dated: October 18, 1996. Yenhere Corporation month of an order for which a review Longjing Walking Tractor Works Foreign Robert S. LaRussa, is requested. However, if it is not Trade Import & Export Corporation Acting Assistant Secretary for Import practicable to issue the preliminary Jilin Provincial Machinery & Equipment Administration. results in 245 days, section 751(a)(3)(A) Import & Export Corporation [FR Doc. 96–27357 Filed 10–24–96; 8:45 am] allows the Department to extend this Shanxi Machinery and Equipment Import & BILLING CODE 3510±DS±P time period to 365 days. Export Corporation We determine that it is not practicable We find that critical circumstances to issue the preliminary results of this exist for Shenyang/Laizhou. In addition, [A±588±609] review within 245 days because the for companies subject to the China-wide Color Picture Tubes from Japan; review involves collecting and rate, we are imputing knowledge based Extension of Time Limit of analyzing data for a large volume of U.S. on the China-wide rate (which is above Antidumping Duty Administrative sales during the period of review. Given 25 percent), and determine, based on Review the volume of this data, we must the facts available, that there were address complicated issues related to massive imports of brake rotors by AGENCY: Import Administration, further manufacturing and to our model companies which did not respond to the International Trade Administration, match methodology. See Memorandum Department’s questionnaire (see Honey, Department of Commerce. from Office Director for AD/CVD 55272 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices

Enforcement to Deputy Assistant exporters of the subject merchandise for Schedule (HTS). The HTS item number Secretary for Import Administration, on which a review was specifically is provided for convenience and file on Room B–099 at the Department. requested. See Antidumping and Customs purposes. The written Accordingly, the deadline for issuing Countervailing Duties: Interim description is dispositive. the preliminary results of this review is Regulations; request for comments, 60 Affiliated Parties or Trading Companies now not later than January 30, 1997. FR 25130, 25139 (May 11, 1995) The deadline for issuing the final results (‘‘Interim Regulations’’). Accordingly, Heveafil owns and controls Filmax will be 120 days after publication of the this review covers Heveafil Sdn. Bhd., and both companies produce subject preliminary results. This extension is in Filmax Sdn. Bhd., Rubberflex Sdn. merchandise. Therefore, we determine accordance with section 751(a)(3)(A) of Bhd., Filati Elastofibre Sdn. Bhd. them to be affiliated companies under the Act. (Filati), and Rubfil Sdn. Bhd. Heveafil section 771(33) of the Act. As such, and Dated: August 30, 1996. and Filmax are affiliated companies. consistent with prior reviews of this Barbara Stafford, This review also covers the period from order, we have calculated only one rate for both of these companies. See Deputy Assistant Secretary for Import January 1, 1994 to December 31, 1994 Administration. and 13 programs. Extruded Rubber Thread From Malaysia; Preliminary Results of [FR Doc. 96–27463 Filed 10–24–96; 8:45 am] Since the publication of the preliminary results on June 11, 1996 (61 Countervailing Duty Administrative BILLING CODE 3510±DS±M FR 29534), the following events have Review, 59 FR 46392 (September 8, occurred: We invited interested parties 1994). For further information, see [C±557±806] to comment on the preliminary results. Memorandum to File from Judy On July 11, 1996, case briefs were Kornfeld Regarding Status as Affiliated Extruded Rubber Thread From submitted by the Government of Parties dated May 22, 1996, on file in Malaysia; Final Results of Malaysia (GOM) and Heveafil, Filmax, the public file of the Central Records Countervailing Duty Administrative Rubberflex, Filati and Rubfil, producers Unit, Room B–099 of the Department of Review of the subject merchandise which Commerce. AGENCY: Import Administration, exported extruded rubber thread to the Verification International Trade Administration, United States during the review period (respondents). As provided in section 782(i) of the Department of Commerce. Act, we verified information provided ACTION: Notice of final results of Applicable Statute and Regulations by the Government of Malaysia, and countervailing duty administrative Unless otherwise indicated, all Heveafil, Filmax, Rubberflex, Filati and review. citations to the statute are references to Rubfil, producers/exporters of the subject merchandise. We followed SUMMARY: On June 11, 1996, the the provisions of the Tariff Act of 1930, Department of Commerce (‘‘the as amended by the Uruguay Round standard verification procedures, Department’’ published in the Federal Agreements Act (‘‘URAA’’) effective including meeting with government and Register its preliminary results of January 1, 1995 (‘‘the Act’’). References company officials, and examination of administrative review of the to the Countervailing Duties; Notice of relevant accounting and original source countervailing duty order on extruded Proposed Rulemaking and Request for documents. Our verification results are rubber thread from Malaysia for the Public Comments, 54 FR 23366 (May 31, outlined in the public versions of the period January 1, 1994 through 1989) (‘‘Proposed Regulations’’), are Verification Reports, which are on file December 31, 1994 (61 FR 29534). The provided solely for further explanation in the Central Records Unit (Room B– Department has now completed this of the Department’s countervailing duty 099 of the Main Commerce Building). administrative review in accordance practice. Although the Department has Analysis of Programs withdrawn the particular rulemaking with section 751(a) of the Tariff Act of Based upon the responses to our 1930, as amended. For information on proceeding pursuant to which the Proposed Regulations were issued, the questionnaires, the results of the net subsidy for each reviewed verification, and written comments from company, and for all non-reviewed subject matter of these regulations is being considered in connection with an interested parties we determine the companies, please see the Final Results following: of Review section of this notice. We will ongoing rulemaking proceeding which, instruct the U.S. Customs Service to among other things, is intended to I. Programs Conferring Subsidies assess countervailing duties as detailed conform the Department’s regulations to the URAA. See Advance Notice of Programs Previously Determined to in the Final Results of Review section of Confer Subsidies this notice. Proposed Rulemaking and Request for Public Comments, 60 FR 80 (January 3, A. Export Credit Refinancing (ECR) EFFECTIVE DATE: October 25, 1996. 1995). FOR FURTHER INFORMATION CONTACT: Judy In the preliminary results, we found Kornfeld, Office of CVD/AD Scope of the Review that this program conferred Enforcement VI, Import Administration, Imports covered by this review are countervailable subsidies on the subject International Trade Administration, shipments of extruded rubber thread merchandise. Our analysis of the U.S. Department of Commerce, 14th from Malaysia. Extruded rubber thread comments submitted by the interested Street and Constitution Ave., N.W., is defined as vulcanized rubber thread parties, summarized below, has led us Washington, D.C. 20230; telephone: obtained by extrusion of stable or to modify our findings in the (202) 482–2786. concentrated natural latex of any cross preliminary results for this program. Accordingly, the net subsidies from pre- SUPPLEMENTARY INFORMATION: sectional shape; measuring from 0.18 mm, which is 0.007 inch or 140 gauge, shipment loans are as follows: Background to 1.42 mm, which is 0.056 inch or 18 Rate Pursuant to section 355.22(a) of the gauge, in diameter. Such merchandise is Manufacturer/exporter (percent) Department’s Interim Regulations, this classifiable under item number review covers only those producers or 4007.00.00 of the Harmonized Tariff Heveafil/Filmax ...... 0.21 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices 55273

Rate Rate and Apparel from Indonesia (50 FR Manufacturer/exporter (percent) Manufacturer/exporter (percent) 9861; March 12, 1985). Furthermore, because there was no initiation notice or Rubberflex ...... 0.19 Rubberflex ...... 0.00 a preliminary determination under Filati ...... 0.00 Filati ...... 0.00 Section 303(a)(1), a final determination Rubfil ...... 0.15 Rubfil ...... 0.00 under that section was not appropriate. If the Department wanted to proceed The net subsidies from post-shipment II. Programs Found to be Not Used loans are as follows: with the investigation, it was required to In the preliminary results, we found reinitiate under the appropriate Rate that the producers and/or exporters of provision. Manufacturer/exporter (percent) the subject merchandise did not apply In addition, respondents argue that for or receive benefits under the the Department’s untimeliness theory in Heveafil/Filmax ...... 0.00 following programs: previous reviews is misplaced. They Rubberflex ...... 0.00 • Investment Tax Allowance, state that the Department has the power Filati ...... 1.39 • Abatement of a Percentage of Net to modify its judgements or correct its Rubfil ...... 0.08 Taxable Income Based on the F.O.B. errors and that Ceramica Regiomontana Value of Export Sales, v. United States, 64 F.3d 1579 (Fed. Cir. B. Pioneer Status • Abatement of Five Percent of 1995) (Ceramica 1995) confirmed the In the preliminary results, we found Taxable Income Due to Location in a right to challenge the continuing that this program conferred Promoted Industrial Area, validity of an order during a review countervailable subsidies on the subject • Abatement of Taxable Income of proceeding. merchandise. Our analysis of the Five Percent of Adjusted Income of Department’s Position: As the comments submitted by the interested Companies due to Capital Participation Department pointed out in the previous parties, summarized below, has not led and Employment Policy Adherence, reviews, respondents’ challenge to the us to change our findings from the • Double Deduction of Export Credit Department’s authority to issue the preliminary results. Accordingly, the Insurance Payments, order is untimely. Challenges to the • net subsidies for this program are as Abatement of Taxable Income of issuance of an order must be filed follows: Five Percent of Adjusted Income of within 30 days of the date the order is Companies Due to Capital Participation published. See 19 U.S.C. § 1516a(a)(2). and Employment Policy Adherence, and Manufacturer/exporter Rate The countervailing duty order on (percent) • Preferential Financing for extruded rubber thread from Malaysia Bumiputras. was published on August 25, 1992. Heveafil/Filmax ...... 0.00 Our analysis of the comments Respondents voluntarily withdrew a Rubberflex ...... 0.00 submitted by the interested parties, timely-filed complaint challenging the Filati ...... 0.00 summarized below, has not led us to Rubfil ...... 0.15 order on these same grounds. change our findings from the Respondents’ attempt to revive that preliminary results. C. Industrial Building Allowance challenge in this proceeding is Analysis of Comments untimely. In the preliminary results, we found Contrary to respondents’ assertions, that this program conferred Comment 1: Respondents allege that there was no requirement that the countervailable subsidies on the subject the Department initiated the original Department reinitiate its investigation as merchandise. We did not receive any investigation pursuant to Section a result of the decision by the United comments on this program from the 303(a)(2) of the Act, and, therefore, the States to terminate the duty-free status interested parties. Accordingly, the net Department can impose countervailing of Malaysian rubber thread. Indeed, subsidies for this program are as duties under this section only if there is respondents’ interpretation could create follows: an injury determination by the an impermissible gap in statutory International Trade Commission (ITC). coverage, which Congress did not Rate (The ITC discontinued its injury intend. See Techsnabexport, Ltd. v. Manufacturer/exporter (percent) determination under Section 303(a)(2) United States, 802 F. Supp. 469, 472 Heveafil/Filmax ...... <0.005 because the duty-free status of rubber (CIT 1992). Nor do the administrative Rubberflex ...... 0.00 thread from Malaysia was terminated.) cases relied upon by respondents Filati ...... 0.00 Respondents contend that without an support their position. In those cases, Rubfil ...... 0.00 injury determination, the Department the Department published notice that had no authority to issue a authority to continue the particular D. Double Deduction for Export countervailing duty order and to require investigations was transferred from Promotion Expenses the payment of cash deposits. section 303 of the Tariff Act of 1930 to In the preliminary results, we found Respondents further maintain that the Title VII of the Act. that this program conferred Department cannot simply transfer the In the course of administrative countervailable subsidies on the subject jurisdiction for an investigation from reviews conducted under this order, merchandise. We did not receive any Section 303(a)(2) to Section 303(a)(1) respondents have misconstrued judicial comments on this program from the without issuing a public notice that it precedent regarding the correction of interested parties. Accordingly, the net intends to proceed with the ‘‘jurisdictional defects.’’ Gilmore Steel subsidies for this program are as investigation under a different statutory Corp. v. United States, 585 F. Supp. 670, follows: provision. See, Certain Textile Mill 674 (CIT 1984) (Gilmore), involved a Products and Apparel from Turkey (50 challenge to the termination of a Rate FR 9817; March 12, 1987); Certain pending investigation based upon Manufacturer/exporter (percent) Textile Mill Products and Apparel from information obtained in the course of the Philippines (50 FR 1195; March 26, that investigation. In particular, the Heveafil/Filmax ...... 0.02 1985) and Certain Textile Mill Products petitioner contended that the 55274 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices

Department lacked the authority to Department’s Position: Respondents Pipe Fittings from Thailand; Final rescind the investigation based upon have misinterpreted both U.S. law and Results of Countervailing insufficient industry support for the the Subsidies Agreement. There is no Administrative Review (61 FR 4959; petition after the 20-day initiation legal basis under U.S. law for Feb. 9, 1996); Extruded Rubber Thread period had elapsed. 585 F. Supp. at 673. respondents’ claim. Because Malaysia from Malaysia, Final Results of In upholding the Department’s became a Subsidies Agreement country Countervailing Duty Administrative determination, the court recognized that on January 1, 1995, only entries made Review (60 FR 51982, 51983; October 4, administrative officers have the on or after January 1, 1995 are entitled 1995), in which the Department applied authority to correct errors, such as to the injury test. See section 753 of the its two-step test. ‘‘jurisdictional defects,’’ at anytime Act; 19 U.S.C. § 1675b. Section 753(a)(4) According to respondents, as a during the proceeding. Id. at 674–75. makes this clear by suspending precondition to imposing countervailing The court did not state or imply that the liquidation of entries of subject duties, the statute requires subsidization Department may reverse a decision to merchandise made ‘‘on or after * ** to occur with respect to imports of the issue an antidumping duty order in the the date on which the country * ** subject merchandise on an overall or context of an administrative review becomes a Subsidies Agreement country aggregated basis. In addition, under section 751 of the Act. Indeed, * * *’’ See, also, Ceramica respondents contend that the URAA the case did not even involve an Regiomontana, S.A. v. United States, 64 altered the assessment provision but not administrative review. The court simply F3d 1579 (Fed. Cir. 1995) (the right to the requirement to determine whether held that the administering authority an injury test is conferred at the time of subsidies were being provided on a may, in the context of the original importation (entry) in the United country-wide basis. investigation, rescind an ongoing States). Therefore, countervailing duties Department’s Position: There is no proceeding after expiration of the 20- may be assessed on Malaysian imports legal basis to support respondents’ day initiation period. In short, Gilmore entered before January 1, 1995, without argument. Pursuant to the URAA, there says nothing to excuse respondents’ regard to an injury test. is no longer a preference for calculating failure to timely challenge the issuance Moreover, Article 32.3 of the a single country-wide subsidy rate in of the order in this case. Subsidies Agreement does not require countervailing duty proceedings. The Similarly, we disagree with an injury determination for merchandise URAA replaced the former practice of respondents’ reliance on Ceramica entered prior to January 1, 1995. (See, calculating subsidies on a country-wide 1995. Ceramica 1995 challenged the also, Footwear from Brazil GATT Panel basis in favor of individual rates for continued imposition of countervailing Decision confirming that liability for reviewed companies. The procedures duties following Mexico’s change in countervailing duties attaches at the for countervailing duty cases are now status to a ‘‘country under the time of importation, not assessment.) In essentially the same as those in Agreement’’ which entitled it to an sum, given that the subject merchandise antidumping cases, except as provided injury test. Unlike respondents, was not entitled to an injury for in section 777A(e)(2)(B) of the Act. Ceramica 1995 did not challenge the determination when it was entered in See also section 355.22 of the Interim validity of the original countervailing 1994, liability for countervailing duties Regulations (60 FR 25130; May 11, duty order, nor did the Federal Circuit attached at the time of entry. Therefore, 1995). Section 777A(e) requires the determine that the issuance of the order there is no obligation under the calculation of an individual was invalid. Consequently, Ceramica Subsidies Agreement to supply an countervailable subsidy rate for each 1995 is a similarly inappropriate basis injury test to these 1994 entries. known producer/exporter of the subject to excuse respondents’ failure to timely Comment 3: Respondents argue that merchandise, except where it is not challenge the issuance of the order. the Department improperly assigned practicable to determine individual Comment 2: Respondents argue that company-specific rates without first countervailable subsidy rates because of the Department must liquidate entries determining whether the overall the large number of exporters or during 1994 without regard to country-wide subsidy rate was above de producers involved in the investigation countervailing duties because the URAA minimis. They contend that the or review. This exception was does not provide an injury test for 1994 Department acted contrary to its inapplicable in this review as there were entries as required under the Agreement established practice of applying its two- only five known producers/exporters. on Subsidies and Countervailing part test in measuring levels of As a result, the judicial and Measures (Subsidies Agreement). Citing subsidization. According to administrative precedents relied upon Article 32.3 of the Subsidies Agreement, respondents, the Department should by respondents are inappropriate as respondents argue that the Subsidies first calculate the net subsidy on a they refer to the requirements as they Agreement is applicable to all reviews, country-wide basis to determine existed prior to the URAA. All of the including the instant review, initiated whether the country-wide rate was reviews cited by respondents were pursuant to requests made after January above de minimis, in accordance with requested and initiated prior to January 1, 1995. Respondents argue that the Ceramica Regiomontana, S.A. v. United 1, 1995, the effective date of the URAA. requirements of the Agreement include States, 853 Supp. 431,439 (Ct. Int’l More pertinent citations would be to the application of an injury test to Trade 1994) (Ceramica 1994). If the reviews conducted under the URAA. entries covered by such a review. country-wide benefit is de minimis, the See, e.g., Certain Hot-Rolled Lead and According to respondents, however, the overall subsidy level would be zero. Bismuth Carbon Steel Products From URAA did not provide a mechanism to Only if the country-wide rate was above the United Kingdom; Preliminary implement this obligation; rather, the de minimis would the Department Results of Countervailing Duty URAA only provides an injury test for proceed to the second step of its test to Administrative Review (61 FR 20,238, merchandise entered on or after January determine if individual rates would 20,242; May 6, 1996), since that review 1, 1995. Therefore, respondents assert apply. Respondents cite Certain Iron was initiated pursuant to requests for that assessment of countervailing duties Metal Castings from India, Preliminary administrative reviews filed after on 1994 entries would violate U.S. Results of Countervailing duty January 1, 1995. obligations under the Subsidies Administrative Review (61 FR 25623; Comment 4: Respondents argue that Agreement. May 22, 1996); Carbon Steel Butt-Welde the Department cannot countervail Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices 55275 benefits under the ECR loan program or Article 14 of the Subsidies Agreement based on the financing of the invoice, the Pioneer Industries program because defines the method for calculating the with the interest discounted. The neither involves a financial contribution amount of a subsidy in terms of the maximum period for a loan based on by the GOM. The WTO Subsidies benefit to the recipient. invoice financing is 180 days. However, Agreement defined the term ‘‘subsidy’’ In the case of ECR loans, the funds if the exporter receives early payment as one involving a ‘‘financial that the GOM lends to the exporters are on the sale from its customer, then the contribution,’’ therefore adding a new lent on a short-term basis at an interest exporter is required to repay the loan at requirement to the pre-existing notion of rate below the commercial benchmark that time rather than at the end of 180 a subsidy. Accordingly, a program rate. In the case of the Pioneer days. The exporter also assumes the risk cannot be a countervailable subsidy Industries program, a company that has for late-payment or non-payment. With unless it involves a ‘‘financial received pioneer status is allowed not to financing under the line of credit, the contribution.’’ In the case of the ECR pay taxes otherwise due to the exporter is charged interest based on the loans, they argue that there is no government. (Also, see Department’s outstanding balance and that interest financial contribution because the funds Position to Comment 10 on Pioneer must be paid on a monthly basis. that the GOM lends to exporters Status.) Therefore, under both programs, Based upon the information on the generate a profit—the funds are lent on financial contributions are provided to record, we have determined that BAs a short-term basis at an interest rate the recipients (the respondents) and the are a comparable form of alternative higher than the cost of those funds. And Department properly treated those short-term financing available to in the case of the Pioneer Industries benefits as countervailable subsidies. respondents for post-shipment loans program, they argue that because the Comment 5: Respondents contend under the ECR program. Both BAs and only company claiming the tax that the Department overstated the post-shipment loans are short-term exemption would have paid the same benefit received under the ECR program borrowing instruments used in trade amount of taxes without the exemption, in its administrative review because it financing of exports. Therefore, we have the GOM did not forgo or fail to collect used an inappropriate benchmark. They used the 1994 BA rates and any revenues as a result of the program. argue that the Department should rely commissions provided at verification Respondents believe that the on its past practice of using the bankers’ (see, Verification Report for the Department’s preliminary determination acceptances (BA) rates because they are Government of Malaysia, Exhibit 10) as overlooks this new requirement. identical to ECR financing in terms of the benchmark for ECR post-shipment Department’s Position: We disagree risk, maturity and purpose. Respondents loans and have recalculated the benefit with respondents that the Department further contend that the Department’s conferred by these loans using this overlooked the requirement of financial use of the ‘‘predominant source’’ of revised benchmark. However, we contribution. Under section 771(5)(D)(i) financing as a benchmark is no longer disagree that BAs are comparable to ECR and (ii) of the Act, a financial authorized. Instead, the URAA requires pre-shipment loans. This is because pre- contribution is defined as ‘‘the direct that the calculation of any benefits be shipment financing used by the transfer of funds, such as grants, loans, based upon ‘‘the amount the recipient of respondents is based on a line of credit, and equity infusions, or the potential the loan pays on the loan and the much like a general short-term loan in direct transfer of funds or liabilities, amount the recipient would pay on a the Malaysian market. We are using the such as loan guarantees,’’ or ‘‘foregoing comparable commercial loan’’ (citing 19 BLR because we have verified, based on or not collecting revenue that is U.S.C. § 1677(E)(ii)). They assert that it meetings with commercial banks in otherwise due, such as granting tax makes no sense to compare trade Malaysia, that the BLR serves as the credits or deductions from taxable financing to other financing such as basis for determining the interest rates income.’’ The ECR loan and Pioneer short-term loans and overdrafts and that charged by commercial banks in Industries tax programs clearly fall BAs are the most comparable form of Malaysia on short-term loans, which within these definitions. We also note financing. would include short-term borrowing that under Article 1.1(a)(1)(i) and (ii) of Department’s Position: We first note using a line of credit. the Subsidies Agreement, a financial that the respondents are incorrect when Comment 6: Respondents argue that, contribution is defined as ‘‘where they state that the Department should if the Department does not use the BA government practice involves a direct rely on its past practice of using BA benchmark, it should use the Average transfer of funds (e.g., grants, loans, and rates as the benchmark. In each of the Lending Rate (ALR) provided in the equity infusions), potential direct prior administrative reviews of this Bank Negara Statistical Bulletin rather transfers of funds or liabilities (e.g., loan order, the Department has used the Base than the BLR plus an estimated spread. guarantees)’’ or ‘‘government revenue Lending Rate (BLR) as the commercial If the Department, nevertheless, uses that is otherwise due, is foregone or not benchmark rather than the BA rate. this method, then the spread should be collected (e.g., fiscal incentives such as However, we do agree with respondents calculated by deducting the average BLR tax credits).’’ that the benchmark should be rate calculated by the Department from Respondents mistakenly focus on the comparable to the government loan in the ALR published in the Bank Negara ‘‘financial contribution’’ concept in question. To the extent that the Statistical Bulletin. terms of the cost to the Malaysian predominant source of financing is not Department’s Position: We disagree government. As explained in the comparable to the loans in question or with respondents. The most appropriate previous reviews, the Department has a could not actually be obtained by the benchmark for pre-shipment financing longstanding practice of valuing the exporter, then we agree that the under the ECR program is based upon benefit to the recipient rather than the predominant source of financing cannot the BLR. During verification of the 1992 cost to the government for the purpose be used as a benchmark under the new and 1994 administrative reviews, we of calculating countervailing duty rates. statute. found that ALR rates published in the This practice is now reflected in section In Malaysia, ECR financing was Bank Negara Statistical Bulletin 771(5)(E) of the Act, which states that provided in two different forms: it was included both short-term and long-term the subsidy benefit ‘‘shall normally be provided as a line of credit based on the rates, while the BLR rates are strictly treated as conferred where there is a company’s previous 12 months’ export based on short-term loans. (See benefit to the recipient.’’ In addition, performance, and it was also provided Memorandum to the File from Judy 55276 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices

Kornfeld and Lorenza Olivas Regarding the first to the second half of the year line of credit based on previous exports Extruded Rubber Thread from Malaysia; of review. See OCTG at 38118. and, when received, cannot be tied to Benchmark Information (Public Respondents have not shown any specific sales in specific markets. Where Document) dated August 15, 1995, on comparable circumstances in Malaysia a benefit is not tied to a particular file in the public file of the Central to warrant the use of semi-annual product or market, it is the Department’s Records Unit, Room B–099 of the average rates. practice to allocate the benefit to all Department of Commerce). Therefore, Comment 8: Respondents argue that products exported by a firm where the we disagree with respondents that we the Department overstated the net benefit is received pursuant to an export should use the ALR rate because it subsidy for the review period and for program. See 19 C.F.R. § 355.47(c) of the would improperly include long-term duty deposit purposes because in Proposed Regulations (54 FR 23375, rates. Finally, we disagree with calculating eligibility for the pre- May 31, 1989). Because pre-shipment respondents’ argument that we should shipment export financing, the loans were not shipment-specific, we calculate the spread by deducting the Department failed to take account of the included all loans in calculating the average BLR rate from the average of the exclusion by Heveafil and Filmax of company-specific duty rate. ALR rates because this would again U.S. exports from the calculation of By excluding exports to the United improperly include long-term rates in eligibility for the pre-shipment export States from their application for export the benchmark calculation and it does financing. In addition, respondents financing, the companies merely not reflect the spread that the claim that the two companies did not reduced the amount of financing they commercial banks charge above the BLR use funds from exports to the United received. Reducing the pool of funds rate on short-term loans. During States to repay any of the pre-shipment available for total export financing does verification, commercial banking loans. They claim that in a similar not eliminate financing to any particular officials stated that the BLR serves as situation, the Department concluded market or for any particular product. the basis for determining the short-term that exports to the United States did not Tying occurs in the provision of the interest rates charged by commercial receive benefits from short-term subsidy, usually through government banks in Malaysia. The commercial financing. See, Suspension of mandate requirements or in certain bank officials also stated that banks add Countervailing Duty Investigation; limited situations where the application a 1.00 to 2.00 percent spread to the BLR. Certain Forged Steel Crankshafts from for the subsidy can be isolated to (See, Verification Report of Commercial Brazil (52 FR 28177, 28179; July 28, specific shipments, e.g. post-shipment Bank.) Accordingly, we have 1987) (Brazilian Crankshafts loans provided on a shipment-by- determined that it is appropriate to Suspension Agreement). Although in shipment basis where the company can continue to use the average of the the first administrative review, the demonstrate through source commercial BLR rates published in Department rejected this method of documentation that it did not apply for Bank Negara Statistical Bulletin, plus an eliminating the effect of a subsidy, or receive loans on shipments to the average 1.5 percent spread, as a respondents maintain that Heveafil and U.S. See Certain Iron Metal Castings benchmark. Filmax received no benefit with regard from India; Preliminary Results of Comment 7: Respondents contend to U.S. shipments. Countervailing Duty Administrative that the Department should not have Respondents further assert that the Review (61 FR 25623; May, 22 1996). used a single annual average benchmark Department found a subsidy in this case Hence, the companies did not eliminate interest rate because it distorts the in part because there was no strict financing for U.S. exports. analysis in a year characterized by segregation of U.S. exports and the We disagree with respondents that in steadily decreasing interest rates. The materials used in their manufacture similar circumstances the Department Department previously used a semi- from materials and exports to other has concluded that the exclusion of U.S. annual average benchmark interest rate markets financed with ECR loans. exports from applications in the manner in the 1987 and 1988 reviews of Oil However, according to the respondents, described by respondents eliminates Country Tubular Goods from Argentina; the Department was presented with any countervailable subsidy that would Final Results of Countervailing Duty exactly the same issue in Crankshafts otherwise be present. As stated in the Administrative Reviews, 56 FR 38118 from Brazil and in that case the last review, respondents’ reliance on the (August 12, 1991) (OCTG). Respondents Department did not require that the Crankshafts from Brazil suspension claim that because the loans in this exporters segregate raw materials agreement is misplaced. Suspension review had a normal maturity of 180 purchased with export financing. agreements are unusual, negotiated days and the rates were fixed at the time Department’s Position: The GOM arrangements in which parties to a of the loan initiation, they fit the same provides ECR financing based on export proceeding agree to renounce conditions as in OCTG. performance. The explicit purpose of countervailable subsidies. As such, Department’s Position: We disagree this program is to promote the export of unlike final determinations, they do not with respondents. Our practice, as manufactured and approved agricultural serve as administrative precedent. reflected in section 355.44(b)(3)(ii) of products. Two types of ECR financing Moreover, the Crankshafts from Brazil the Proposed Regulations, is that are available: pre-shipment and post- suspension agreement is consistent with ‘‘unless short-term interest rates in the shipment financing. There is no our allocation practice, as described in country in question have fluctuated evidence that the GOM limits these ECR the Proposed Regulations. significantly during the year in loans to increase exports only to Comment 9: Respondents argue that question, the Secretary will calculate a markets other than the United States, the Department previously found the single, annual average benchmark nor is there evidence of a provision that Pioneer Status Program not interest rate.’’ In the OCTG case relied prevents exporters from receiving ECR countervailable. See, Carbon Steel Wire upon by respondents, there was loans for exports to the United States. Rod from Malaysia; Final Results of significant hyperinflation and an During the review period, both Countervailing Duty Administrative average annual rate would therefore Heveafil and Filmax applied for and Review; 56 FR 14927 (April 12, 1991) have been distorted by the used pre-shipment financing based on (Wire Rod). Respondents assert that it is compounding of very high monthly certificates of performance (CP). Pre- not countervailable because tax benefits interest rates which varied widely from shipment financing based on CPs is a under this program are not limited to Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices 55277 any sector or region of the Malaysian producers. The extruded rubber thread claim that the Department used a economy, nor is the program exclusively industry is among these industries. different ‘‘total export’’ figure for available to exporting companies. They The combination of the necessary Heveafil and Filmax than was used for contend that the Department confirmed export orientation of the industry due to calculating the benefit involving ECR in the first administrative review, both lack of domestic market opportunities financing. The second ‘‘total export’’ the de jure and de facto availability of and the explicit export condition figure appears to be the result of a this program to the entire Malaysian attached to pioneer status approval in clerical error. economy, and that the pioneer status tax the rubber thread industry lead us to Department’s Position: We agree with benefits are not targeted to specific conclude that the Pioneer Status respondents. The second ‘‘total export’’ industries or companies in a program constitutes an export subsidy figure has been corrected in the final discriminatory manner. Furthermore, to the rubber thread industry. Whether calculation. or not the commitment was voluntary, the Department verified in the original Final Results of Review investigation that the internal guidelines as respondents suggest, the company used to grant pioneer status are has obligated itself to export a very large In accordance with section characterized by neutral criteria portion of its production, and that 355.22(c)(4)(ii) of the Department’s unrelated to exports, location or any commitment was a condition for Interim Regulations, we calculated an other factors that could require a approval of benefits. individual subsidy rate for each determination that the program is Comment 10: Respondents argue that producer/exporter subject to this countervailable. the Department overstated the benefit administrative review. For the period Respondents further argue that the from the Pioneer Status program January 1, 1994 through December 31, Department verified in the first because it failed to deduct the normal 1994, we determine the ad valorem net administrative review that the GOM capital allowances that would have been subsidies to be: does not require export commitments, allowed if the program had not been or view them as preponderant, in used. Respondents claim that Rubfil, in Net subsidy Net subsidiesÐproducer/ rate evaluating applications; that export fact, received no cash benefits from this exporter (percent) potential is merely one of 12 factors program. Furthermore, they claim, the considered in granting status; and that Department incorrectly allocated Heveafil/Filmax ...... 0.23 a product will not be accepted based on pioneer status tax benefits over only Rubberflex ...... 0.19 export potential alone. Furthermore, export sales even though pioneer status Filati ...... 1.39 respondents argue that the Department tax benefits are also applicable to profits Rubfil ...... 0.38 verified in the first administrative on domestic sales. According to the review that the GOM commonly respondents, this is inconsistent with We will instruct the U.S. Customs approves companies that do not make the Department’s practice to allocate Service (‘‘Customs’’) to assess export commitments as well as some benefits over total sales to which they countervailing duties as indicated that do make them. Therefore, export are ‘‘tied.’’ above. The Department will also performance is not viewed as a Department’s Position: We disagree instruct Customs to collect cash preponderant factor, but as one of many with respondents. When a company deposits of estimated countervailing neutral criteria. receives pioneer status, it is allowed to duties in the percentages detailed above Department’s Position: We addressed accumulate the normal capital of the f.o.b. invoice price on all this identical argument in the previous allowances for use in future years. shipments of the subject merchandise review. In Wire Rod, we concluded that Rubfil did not pay income taxes during from reviewed companies, entered, or benefits were not used by a specific the period of review because of its withdrawn from warehouse, for industry or group of industries and that pioneer status. Therefore, a benefit has consumption on or after the date of no industry or group of industries used been conferred upon the company publication of the final results of this the program disproportionately and because it used its pioneer status to review. As provided for in the Act, any found the program not to be offset income. Rubfil is also able to rate less than 0.5 percent ad valorem in countervailable. That determination, accumulate capital allowances which an administrative review is de minimis. however, did not specifically address can be used to offset taxable income in Accordingly, for those producers/ situations where companies had a the future, after its pioneer status exporters no countervailing duties will specific export condition attached to expires. Moreover, export sales should be assessed or cash deposits required. their pioneer status approval. In the form the denominator because receipt of Because the URAA replaced the Wire Rod investigation, petitioner raised pioneer status tax benefits for the general rule in favor of a country-wide the issue of an export requirement. companies under review is contingent rate with a general rule in favor of Although the requirement per se is not upon exportation. Accordingly, we have individual rates for investigated and new, it was not at issue with the not overstated the benefit from the reviewed companies, the procedures for companies investigated in Wire Rod. Pioneer Status Program. See section establishing countervailing duty rates, In this case, recipients of the tax 355.47(a)(2) of the Proposed Rules. See including those for non-reviewed benefits conferred by Pioneer Status can also Final Affirmative Countervailing companies, are now essentially the same be divided into two categories: Duty Determination; Certain as those in antidumping cases, except as industries and activities that will find Agricultural Tillage Tools From Brazil provided for in section 777A(e)(2)(B) of market opportunities in Malaysia and (50 FR 34525; August 26, 1985) and the Act. The requested review will elsewhere, and those that face a Certain Iron-Metal Castings From India; normally cover only those companies saturated domestic market. At Preliminary Results of Countervailing specifically named. See section verification of the first administrative Duty Administrative Review (60 FR 355.22(a) of the Interim Regulations. review, we established that an export 44839; August 29, 1995). Pursuant to 19 C.F.R. § 355.22(g), for all requirement may sometimes be applied Comment 11: In calculating the companies for which a review was not to certain industries after it is benefit involving the industrial building requested, duties must be assessed at determined that the domestic market allowance and double deduction for the cash deposit rate, and cash deposits will no longer support additional export promotion expenses, respondents must continue to be collected, at the rate 55278 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices previously ordered. As such, the disposition of proprietary information Dated: October 18, 1996. countervailing duty cash deposit rate disclosed under APO in accordance Bruce Morehead, applicable to a company can no longer with 19 C.F.R. § 355.34(d). Timely Acting Director, Office of Sustainable change, except pursuant to a request for written notification of return/ Fisheries, National Marine Fisheries Service. a review of that company. See Federal- destruction of APO materials or [FR Doc. 96–27464 Filed 10–24–96; 8:45 am] Mogul Corporation and The Torrington conversion to judicial protective order is BILLING CODE 3510±22±F Company v. United States, 822 F.Supp. hereby requested. Failure to comply 782 (CIT 1993) and Floral Trade Council with the regulations and the terms of an v. United States, 822 F.Supp. 766 (CIT APO is a sanctionable violation. CONSUMER PRODUCT SAFETY 1993) (interpreting 19 C.F.R. § 353.22(e), This administrative review and notice COMMISSION the antidumping regulation on are in accordance with section 751(a)(1) automatic assessment, which is of the Act (19 U.S.C. 1675(a)(1)). Proposed Collection; Comment identical to 19 C.F.R. § 355.22(g)). Dated: October 9, 1996. RequestÐCitizens Band Base Station Therefore, the cash deposit rates for all Antennas companies except those covered by this Robert S. LaRussa, review will be unchanged by the results Acting Assistant Secretary for Import AGENCY: Consumer Product Safety of this review. Administration. Commission. We will instruct Customs to continue [FR Doc. 96–27358 Filed 10–24–96; 8:45 am] to collect cash deposits for non- BILLING CODE 3510±DS±P ACTION: Notice. reviewed companies at the most recent company-specific or country-wide rate SUMMARY: As required by the Paperwork applicable to the company. Accordingly, National Oceanic and Atmospheric Reduction Act of 1995 (44 U.S.C. the cash deposit rates that will be Administration Chapter 35), the Consumer Product applied to non-reviewed companies Safety Commission requests comments covered by this order are those [I.D. 101896B] on a proposed reinstatement of approval established in the most recently of a collection of information from North Pacific Fishery Management completed administrative proceeding. manufacturers and importers of citizens Council; Crab Team Teleconference See Extruded Rubber Thread From band base station antennas. The Malaysia; Final Results of AGENCY: National Marine Fisheries collection of information is in Countervailing Duty Administrative Service (NMFS), National Oceanic and regulations implementing the Safety Review, 60 FR 51982 (October 4, 1995). Atmospheric Administration (NOAA), Standard for Omnidirectional Citizens These rates shall apply to all non- Commerce. Band Base Station Antennas (16 CFR Part 1204). These regulations establish reviewed companies until a review of a ACTION: Notice of teleconference. company assigned these rates is testing and recordkeeping requirements requested. In addition, for the period SUMMARY: The North Pacific Fishery for manufacturers and importers of January 1, 1994 through December 31, Management Council’s (Council) Crab antennas subject to the standard. The 1994, the assessment rates applicable to Fishery Management Plan Team will Commission will consider all comments all non-reviewed companies covered by meet by teleconference on November 12, received in response to this notice this order are the cash deposit rates in 1996, beginning at 11:00 a.m., Alaska before requesting a reinstatement of effect at the time of entry. Time. approval of this collection of This countervailing duty order was information from the Office of ADDRESSES: The teleconference will be determined to be subject to section 753 held at the Council office, 605 W. 4th Management and Budget. of the Act (as amended by the Uruguay Avenue, Suite 306, Anchorage, AK DATES: Written comments must be Round Agreements Act of 1994). 99501–2252. received by the Office of the Secretary Countervailing Duty Order; Opportunity not later than December 24, 1996. FOR FURTHER INFORMATION CONTACT: to Request a Section 753 Injury ADDRESSES: Written comments should Investigation, 60 FR 27,963 (May 26, Dave Witherell, telephone: 907–271– 2809. be captioned ‘‘Citizens Band Base 1995), amended 60 FR 32,942 (June 26, Station Antennas’’ and mailed to the SUPPLEMENTARY INFORMATION: The 1995). In accordance with section Office of the Secretary, Consumer agenda for the meeting will include the 753(a), domestic interested parties have Product Safety Commission, following subjects. requested an injury investigation with Washington, D.C. 20207, or delivered to 1. Crab prohibited species catch respect to this order with the that office, room 502, 4330 East West management for groundfish pot International Trade Commission (ITC). Highway, Bethesda, Maryland. Pursuant to section 753(a)(4), fisheries. liquidation of entries of subject 2. Observer collection of crab bycatch FOR FURTHER INFORMATION CONTACT: For merchandise made on or after January 1, data. information about the proposed 1995, the date Malaysia joined the 3. Crab Fishery Management Plan reinstatement of approval of the World Trade Organization, is suspended update. collection of information, or to obtain a until the ITC issues a final injury 4. Other crab-related issues which copy of 16 CFR Part 1204, call or write determination. We will not issue might arise. Carl Blechschmidt, Action Director, assessment instructions for any entries Office of Planning and Evaluation, Special Accommodations made after January 1, 1995; however, we Consumer Product Safety Commission, will instruct Customs to collect cash This meeting will be physically Washington, DC 20207; telephone (301) deposits in accordance with the final accessible to people with disabilities. 504–0416, extension 2243. results of this administrative review. Requests for sign language SUPPLEMENTARY INFORMATION: This notice serves as a reminder to interpretation or other auxiliary aids parties subject to administrative should be directed to Helen Allen, 907– A. Background protective order (APO) of their 271–2809, at least 5 working days prior In 1982, the Commission issued the responsibility concerning the to the meeting date. Safety Standard for Omnidirectional Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices 55279

Citizens Band Antennas (16 CFR Part The hourly wage for the testing and Act of 1995 (44 U.S.C. Chapter 35) to 1204) to reduce risks of death and recordkeeping required to conduct the announce the agency’s intention to seek serious injury that may result if an testing and maintain records required by approval of the collection of information omnidirectional antenna contacts an the regulations is about $55, for an in the Safety Standard for Automatic overhead power line while being estimated annual cost to the industry of Residential Garage Door Operators (16 erected or removed from its site. The $84,700. CFR Part 1211). By publication of this standard contains performance tests to The Commission will expend notice, the Commission announces that demonstrate that an antenna will not approximately one week of professional it has submitted to the Office of transmit a harmful electric current if it staff time each year reviewing and Management and Budget a request for contacts an electric power line with a evaluating the records maintained by approval of that collection of voltage of 14,500 volts phase-to-ground. manufacturers and importers of citizens information without change through Certification regulations implementing band base station antennas. The annual December 31, 1999. the standard require manufacturers, cost to the Federal government of the The Consumer Product Safety importers, and private labelers of collection of information in these Improvement Act of 1990 (Pub. L. 101– antennas subject to the standard to regulations is estimated to be $1,400. 608, 104 Stat. 3110) contains provisions requiring that all automatic residential perform tests to demonstrate that those C. Request for Comments products meet the requirements of the garage door openers manufactured after standard, and to maintain records of The Commission solicits written January 1, 1993, must comply with the those tests. The certification regulations comments from all interested persons entrapment protection requirements of are codified at 16 CFR Part 1204, about the proposed extension of UL Standard 325 that were in effect on Subpart B. approval of the collection of information January 1, 1992. In 1992, the The Commission uses the information in the certification regulations Commission codified the entrapment compiled and maintained by implementing the Safety Standard for protection provisions of UL Standard manufacturers, importers, and private Omnidirectional Citizens Band Base 325 in effect on January 1, 1992, as the labelers of antennas subject to the Station Antennas. The Commission Safety Standard for Automatic standard to help protect the public from specifically solicits information about Residential Garage Door Operators, 16 risks of injury or death associated with the hourly burden and monetary costs CFR Part 1211, Subpart A. Certification omnidirectional citizens band base imposed by the collection of regulations implementing the standard station antennas. More specifically, this information on firms subject to this require manufacturers, importers and information helps the Commission collection of information. The private labelers of garage door openers determine that antennas subject to the Commission also seeks information subject to the standard to test their relevant to the following topics: products for compliance with the standard comply with all applicable • requirements. The Commission also Whether the collection of standard, and to maintain records of uses this information to obtain information is necessary for the proper that testing. Those regulations are corrective actions if omnidirectional performance of the Commission’s codified at 16 CFR Part 1211, Subparts citizens band base station antennas fail functions; B and C. • Whether the information will have to comply with the standard in a The Commission uses the records of practical utility for the Commission; testing and other information required manner which creates a substantial risk • Whether the quality, utility, and of injury to the public. by the certification regulations to clarity of the information to be collected determine that automatic residential The Office of Management and Budget could be enhanced; and (OMB) approved the collection of • garage door openers subject to the Whether the burden imposed by the standard comply with its requirements. information in the certification collection of information could be regulations under control number 3041– The Commission also uses this minimized by use of automated, information to obtain corrective actions 0006. OMB’s most recent extension of electronic or other technological approval expired on August 18, 1985. if garage door openers fail to comply collection techniques, or other form of with the standard in a manner which The Commission now proposes to information technology. request a reinstatement of approval creates a substantial risk of injury to the without change for the collection of Dated: October 17, 1996. public. information in the certification Sadye E. Dunn, Additional Information About the regulations. Secretary, Consumer Product Safety Request for Approval of a Collection of Commission. Information B. Estimated Burden [FR Doc. 96–27193 Filed 10–24–96; 8:45 am] Agency address: Consumer Product BILLING CODE 6355±01±P The Commission staff estimates that Safety Commission, Washington, DC about 7 firms manufacture or import 20207. citizens band base station antennas Title of information collection: Safety subject to the standard. The Submission for OMB Review; Comment RequestÐSafety Standard Standard for Automatic Residential Commission staff estimates that the Garage Door Operators, 16 CFR Part certification regulations will impose an for Automatic Residential Garage Door Operators 1211. average annual burden of about 220 Type of request: Approval of a hours on each of those firms. That AGENCY: Consumer Product Safety collection of information. burden will result from conducting the Commission. General description of respondents: testing required by the regulations and ACTION: Notice. Manufacturers, importers, and private maintaining records of the results of that labelers of automatic residential garage testing. The total annual burden SUMMARY: In the Federal Register of door openers. imposed by the regulations on February 12, 1996 (61 FR 5537), the Estimated number of respondents: 14. manufacturers and importers of citizens Consumer Product Safety Commission Estimated average cost of testing and band base station antennas is published a notice in accordance with recordkeeping per respondent: $1,200 approximately 1,540 hours. provisions of the Paperwork Reduction per year. 55280 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices

Estimated total cost for all SUPPLEMENTARY INFORMATION: The text of Hartman Products received respondents: $16,800 per year. the Agreement and Order appears information from Underwriters Comments: Comments on this request below. Laboratories, Inc. notifying the firm for extension of approval of information Dated: October 21, 1996. about the fire hazard the affected units collection requirements should be sent Sadye E. Dunn, presented. The firm also received a within 30 days of publication of this complaint from a consumer alleging that Secretary. notice to Victoria Wassmer, Desk her Pro 1600 caught fire. Officer, Office of Information and [FR Doc. 96–27484 Filed 10–24–96; 8:45 am] 7. Hartman Products obtained Regulatory Affairs, Office of BILLING CODE 6355±01±M information which reasonably Management and Budget, Washington, supported the conclusion that the DC 20503; telephone: (202) 395–7340. [CPSC Docket No. 97±C0002] affected units contained defects which Copies of the request for reinstatement could create a substantial product of information collection requirements Settlement Agreement and Order hazard, but failed to report that and supporting documentation are information to the Commission as In the Matter of Hartman Products, a required by section 15(b) of the CPSA, available from Carl Blechschmidt, corporation. Acting Director, Office of Planning and 15 U.S.C. § 2064(b). 1. Hartman Products, a corporation, Evaluation, Consumer Product Safety III. Response of Hartman Products Commission, Washington, DC 20207; enters into this Settlement Agreement telephone: (301) 504–0416, extension and Order with the staff of the 8. Hartman Products denies the 2243. Consumer Product Safety Commission allegations of the staff that the affected (‘‘Commission’’ or ‘‘CPSC’’) pursuant to units contained any defect which could Dated: October 22, 1996. the procedures set forth in 16 C.F.R. create a substantial product hazard Sadye E. Dunn, § 1118.20 of the Commission’s pursuant to section 15(a) of the CPSA, Secretary, Consumer Product Safety Procedures for Consent Order 15 U.S.C. § 2064(a), and further denies Commission. Agreements under the Consumer that it violated the reporting [FR Doc. 96–27483 Filed 10–24–96; 8:45 am] Product Safety Act (‘‘CPSA’’), 15 U.S.C. requirements of section 15(b) of the BILLING CODE 6355±01±P §§ 2051–2084. CPSA, 15 U.S.C. § 2064(b). 9. In December 1992, in cooperation I. The Parties with Underwriters Laboratories, Inc., [CPSC Docket No. 97±C0002] 2. The ‘‘staff’’ is the staff of the Hartman Products recalled the affected Consumer Product Safety Commission, units. To date, it has not received any Hartman Products, a Corporation; an independent regulatory commission claims or allegations of injury from the Provisional Acceptance of a of the United States established affected units covered by this Settlement Agreement and Order pursuant to section 4 of the CPSA, 15 settlement. U.S.C. § 2053. AGENCY: Consumer Product Safety 3. Hartman Products is a corporation IV. Agreement of the Parties Commission. organized and existing under the laws of 10. The Commission has jurisdiction ACTION: Provisional acceptance of a the State of California, with its principal over this matter under the CPSA, 15 settlement agreement under the corporate offices located at 4949 W. U.S.C. § 2051–2084. Consumer Product Safety Act. 147th Street, Hawthorne, California 11. Hartman Products, knowingly, 90250. voluntarily, and completely waives any SUMMARY: It is the policy of the rights it may have to an administrative Commission to publish settlements II. Allegations of the Staff or judicial hearing with respect to the which it provisionally accepts under the 4. Between August 1992 and staff allegations cited herein, judicial Consumer Product Safety Act in the December 1992, Hartman Products review or other challenge or contest of Federal Register in accordance with the assembled and distributed the validity of the Commission’s Order, terms of 16 C.F.R. Section 1118.20(e). approximately 8,000 affected units of a determination by the Commission as Published below is a provisionally- the Hartman Pro 1600 (‘‘Pro 1600’’) hair to whether a violation of section 15(b) accepted Settlement Agreement with dryer. Hartman Products is, therefore, a of the CPSA, 15 U.S.C. § 2064(b), has Hartman Products, a corporation. ‘‘manufacturer’’ as that term is defined occurred, and a statement of findings of DATES: Any interested person may ask in section 3(a)(4) of the CPSA, 15 U.S.C. fact and conclusions of law with regard the Commission not to accept this § 2052(a)(4). to the staff allegations. agreement or otherwise comment on its 5. The Pro 1600 is a portable 12. Upon provisional acceptance of contents by filing a written request with household appliance that consumers this Settlement Agreement and Order by the Office of the Secretary by November use to dry their hair. The Pro 1600 is a the Commission, this Settlement 9, 1996. ‘‘consumer product’’ which was Agreement and Order shall be placed on ‘‘distributed in commerce’’ as those the public record and shall be published ADDRESSES: Persons wishing to terms are defined in sections 3(a)(1) and in the Federal Register in accordance comment on this Settlement Agreement (11) of the CPSA, 15 U.S.C. §§ 2052(a)(1) with 16 C.F.R. § 1118.20(e). should send written comments to the and (11). 13. The Settlement Agreement and Comment 97–C0001, Office of the 6. In some instances, the switch unit Order take effect upon final acceptance Secretary, Consumer Product Safety on the affected units could start a unit’s by the Commission and their service Commission, Washington, D.C. 20207. heater without turning on its fan. In this upon Hartman Products. FOR FURTHER INFORMATION CONTACT: situation, the heater could ignite the 14. Upon final acceptance of this Traci J. Williams, Trial Attorney, Office motor mounts made of a plastic material Settlement Agreement by the of Compliance and Enforcement, called Acrylonitrile-Butadiene-Styrene, Commission, the Commission will issue Consumer Product Safety Commission, ultimately igniting the entire unit, a press release to advise the public of Washington, D.C. 20207; telephone exposing surrounding objects to the the civil penalty Settlement Agreement (301) 504–0626. flames. and Order. Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices 55281

15. Hartman Products agrees to entry THE CORPORATION FOR NATIONAL DEPARTMENT OF DEFENSE of the attached Order, which is AND COMMUNITY SERVICE incorporated herein by reference, and Department of the Navy agrees to be bound by its terms. Information Collection Request 16. This Settlement Agreement and Submitted to the Office of Management Notice of Intent to Prospectively Grant Order are binding upon Hartman and Budget for Review Exclusive or Partially Exclusive Products and its assigns and successors. License(s) to Precision Quincy 17. Agreements, understandings, AGENCY: Corporation for National and Corporation and Shields representations, or interpretations made Community Service (CNCS). Environmental Corporation outside this Settlement Agreement and SUMMARY: Precision Quincy Corporation Order may not be used to vary or ACTION: Notice of Information Collection Emergency Request Submitted to the has applied for an exclusive license to contradict its terms. practice the Government owned Office of Management and Budget Hartman Products. invention described in U.S. Patent No. (OMB) for OMB Review of the National Dated: September 11, 1996. 5,511,908 entitled ‘‘Mobile Safety Service Enrollment Form and the Structure for Containment and Handling Ronald Weinhart, National Service Member Exit Form. Hartman Products. of Hazardous Material’’ issued April 30, 1996 and Shields Environmental The Consumer Product Safety Commission. SUMMARY: This notice provides Corporation has also applied for an David Schmeltzer, information about an information exclusive license to practice the same Assistant Executive Director, Office of collection request by the Corporation for invention. The Department of the Navy Compliance. National and Community Service, is considering granting to either one or Eric L. Stone, currently under review by OMB. both entities, a revocable, Acting Director, Division of Administrative nonassignable, exclusive or partially FOR FURTHER INFORMATION CONTACT: Litigation, Office of Compliance. exclusive license(s) to practice this Lance Potter, (202) 606–5000, Extension Dated: September 20, 1996. invention in the United States. 448. Traci J. Williams, Anyone wishing to object to the granting of licenses to either or both SUPPLEMENTARY INFORMATION: Trial Attorney. prospective licensees has 60 days from William J. Moore, Jr., Title of Forms: National Service the date of this notice to file written Trial Attorney, Division of Administrative objections along with supporting Litigation, Office of Compliance. Enrollment Form and National Service Member Exit Form. evidence, if any. Written objections are [CPSC Docket No. 97–C0002] to be filed with the Office of Naval Need and Use: The National and Order Research, ONR 00CC, Ballston Tower Community Service Act of 1993 requires One, Arlington, Virginia 22217–5660. the Corporation for National and In the Matter of Hartman Products, a FOR FURTHER INFORMATION CONTACT: corporation. Community Service to provide Mr. R. J. Erickson, Staff Patent Attorney, Upon consideration of the Settlement education awards to individuals who Office of Naval Research, ONR 00CC, Agreement entered into between complete a term of service in an Ballston Tower One, 800 North Quincy Respondent, Hartman Products, a approved national service position. By Street, Arlington, Virginia 22217–5660, corporation, and the staff of the providing awards to individuals CNCS telephone (703) 696–4001. Consumer Product Safety Commission; assists in expanding educational Dated: October 10, 1996. and the Commission having jurisdiction opportunity and rewards individual D.E. Koenig, Jr., over the subject matter and Hartman responsibility. Federal Register Liaison Officer. Products; and it appearing that the Type of Request: Revised submission [FR Doc. 96–27421 Filed 10–24–96; 8:45 am] Settlement Agreement and Order is in for a previously approved collection. the public interest, it is BILLING CODE 3810±FF±P Ordered, that the Settlement Respondent’s Obligation to Reply: Agreement be and hereby is accepted; Required to obtain benefit. and it is Frequency of Collection: One time DEPARTMENT OF ENERGY Further Ordered, that upon final only. acceptance of the Settlement Agreement Federal Energy Regulatory Estimated Number of Responses: Commission and Order, Hartman Products shall pay 21,000. the Commission a civil penalty in the [Docket No. TX95±4±001] amount of SIXTY THOUSAND AND 00/ Average Burden Hours Per Response: 100 DOLLARS ($60,000.00), payable as Enrollment Form: .07 hrs. American Municipal Power Ohio, Inc. v. follows: $15,000 twenty days after the Exit Form: .12 hrs. Ohio Edison Company; Notice of Filing Order is accepted finally, $20,000 by January 1, 1997, and $25,000 by July 15, Estimated Annual Reporting or October 21, 1996. 1997. Disclosure Burden: Take notice that on September 30, Provisionally accepted and Enrollment Form: 2975 hours. 1996, Ohio Edison Company tendered in compliance with the Commission’s Provisional Order issued on the 21st day Exit Form: 4200 hours. of October, 1996. September 13, 1996, Final Order in this Regulatory Authority: 42 U.S.C. 5066(a). docket, an Agreement for Construction, By Order of the Commission. Dated: October 21, 1996. Operating and Compensation of Second Sadye E. Dunn, Delivery Points with American Lance Potter, Secretary, Consumer Product Safety Municipal Power-Ohio, Inc. and various Commission. Director, Office of Evaluation. Ohio Municipalities. [FR Doc. 96–27485 Filed 10–24–96; 8:45 am] [FR Doc. 96–27416 Filed 10–24–96; 8:45 am] Any person desiring to be heard or to BILLING CODE 6355±01±M BILLING CODE 6050±28±M protest said filing should file a motion 55282 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices to intervene or protest with the Federal be authorized effective the day after the on file with the Commission and are Energy Regulatory Commission, 888 time allowed for filing a protest. If a available for public inspection. First Street, N.E., Washington, D.C. protest is filed and not withdrawn Lois D. Cashell, 20426, in accordance with Rules 211 within 30 days after the time allowed Secretary. and 214 of the Commission’s Rules of for filing a protest, the instant request [FR Doc. 96–27385 Filed 10–24–96; 8:45 am] Practice and Procedure (18 CFR 385.211 shall be treated as an application for BILLING CODE 6717±01±M and 18 CFR 385.214). All such motions authorization pursuant to Section 7 of or protests should be filed on or before the Natural Gas Act. October 31, 1996. Protests will be Lois D. Cashell, [Docket Nos. ER96±2628±000 and ER96± 2766±000] considered by the Commission in Secretary. determining the appropriate action to be [FR Doc. 96–27381 Filed 10–24–96; 8:45 am] Kentucky Utilities Company; Notice of taken, but will not serve to make BILLING CODE 6717±01±M Filing protestants parties to the proceeding. Any person wishing to become a party October 21, 1996. must file a motion to intervene. Copies Take notice that on September 27, of this filing are on file with the [Docket No. CP85±221±070] 1996, Kentucky Utilities Company Commission and are available for public Frontier Gas Storage Company; Notice tendered for filing an Amendment to its inspection. of Sale Pursuant to Settlement filing to reflect a revision to its Power Lois D. Cashell, Agreement Services (PS) Tariff. Secretary. Any person desiring to be heard or to [FR Doc. 96–27374 Filed 10–24–96; 8:45 am] October 21, 1996. protest said filing should file a motion to intervene or protest with the Federal BILLING CODE 6717±01±M Take notice that on October 17, 1996, Energy Regulatory Commission, 888 Frontier Gas Storage Company First Street, NE., Washington, DC 20426, [Docket No. CP97±30±000] (Frontier), c/o Reid & Priest, Market in accordance with Rules 211 and 214 Square, 701 Pennsylvania Ave., NW., of the Commission’s Rules of Practice Equitrans, L.P.; Notice of Request Suite 800, Washington, DC 20004, in and Procedure (18 CFR 385.211 and 18 Under Blanket Authorization compliance with provisions of the CFR 385.214). All such motions or Commission’s February 13, 1985, Order protests should be filed on or before October 21, 1996. in Docket No. CP82–487–000, et al., Take notice that on October 15, 1996, November 1, 1996. Protests will be submitted an executed Service considered by the Commission in Equitrans, L.P. (Equitrans), 3500 Park Agreement under Rate Schedule LVS–1 Lane, Pittsburgh, Pennsylvania 15275, determining the appropriate action to be providing for the possible sale of up to taken, but will not serve to make filed in Docket No. CP97–30–000 a a daily quantity of 6,000 MMBtu, not to request pursuant to Sections 157.205 protestants parties to the proceeding. exceed 700,000 MMBtu of Frontier’s gas Any person wishing to become a party and 157.212 of the Commission’s storage inventory on an ‘‘as metered’’ Regulations under the Natural Gas Act must file a motion to intervene. Copies basis to Conoco, Inc., for term ending of this filing are on file with the (18 CFR 157.205, 157.212) for February 28, 1997. authorization to install one delivery tap Commission and are available for public under Equitrans’s blanket certificate Under Subpart (b) of Ordering inspection. issued in Docket No. CP83–508–000 Paragraph (F) of the Commission’s Lois D. Cashell, pursuant to Section 7 of the Natural Gas February 13, 1985, Order, Frontier is Secretary. Act, all as more fully set forth in the ‘‘authorized to commence the sale of its [FR Doc. 96–27378 Filed 10–24–96; 8:45 am] inventory under such an executed request that is on file with the BILLING CODE 6717±01±M Commission and open to public service agreement fourteen days after inspection. filing the agreement with the [Docket No. CP97±41±000] Equitrans proposes to install one Commission, and may continue making such sale unless the Commission issues delivery tap on Equitrans field gathering Natural Gas Pipeline Company of pipeline No. W–5037 in Marion County, an order either requiring Frontier to stop selling and setting the matter for hearing America; Notice of Request Under West Virginia. The tap will be instituted Blanket Authorization to provide transportation deliveries to or permitting the sale to continue and Equitable Gas for ultimate distribution establishing other procedures for October 21, 1996. to one residential customer. Equitrans resolving the matter.’’ Take notice that on October 17, 1996, projects that the quantity of gas to be Any person desiring to be heard or to Natural Gas Pipeline Company of delivered through the proposed delivery make a protest with reference to said America (Natural), 701 East 22nd Street, tap will be approximately 1 Mcf on a filing should, within 10 days of the Lombard, Illinois 60148, filed in Docket peak day. publication of such notice in the No. CP97–41–000 a request pursuant to Any person or the Commission’s staff Federal Register, file with the Federal Sections 157.205 and 157.211 of the may, within 45 days after issuance of Energy Regulatory Commission (888 1st Commission’s Regulations under the the instant notice by the Commission, Street NE., Washington, DC 20426) a Natural Gas Act (18 CFR 157.205, file pursuant to Rule 214 of the motion to intervene or protest in 157.211) for authorization to operate an Commission’s Procedural Rules (18 CFR accordance with the requirements of the existing receipt/delivery point in Ford 385.214) a motion to intervene or notice Commission’s Rules of Practice and County, Kansas, and to construct and of intervention and pursuant to Section Procedures, 18 CFR 385.214 or 385.211. operate approximately 400 feet of 157.205 of the Regulations under the Protests will be considered by the twelve-inch lateral to connect the Natural Gas Act (18 CFR 157.205) a Commission in determining the existing point to a twelve-inch bi- protest to the request. If no protest is appropriate action to be taken, but will directional meter to be constructed by filed within the time allowed therefor, not serve to make protestants parties to the end-user, under Natural’s blanket the proposed activity shall be deemed to the proceeding. Copies of this filing are certificate issued in Docket No. CP82– Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices 55283

402–000 pursuant to Section 7 of the liability by New Jersey Energy should or to protest the blanket approval of Natural Gas Act, all as more fully set file a motion to intervene or protest with issuances of securities or assumptions of forth in the request that is on file with the Federal Energy Regulatory liability by PanEnergy should file a the Commission and open to public Commission, 888 First Street NE., motion to intervene or protest with the inspection. Washington, DC 20426, in accordance Federal Energy Regulatory Commission, Specifically Natural proposes to with Rules 211 and 214 of the 888 First Street, NE., Washington, DC operate an existing point to both deliver Commission’s Rules of Practice and 20426, in accordance with Rules 211 and receive gas from MidContinent Procedure (18 CFR 385.211 and and 214 of the Commission’s Rules of Market Center, Inc., (MCMC), a Hinshaw 385.214). Practice and Procedure (18 CFR 385.211 pipeline, and to construct and operate Absent a request for hearing within and 385.214). the 400-feet lateral to a new twelve-inch this period, New Jersey Energy is Absent a request for hearing within bi-directional meter to be constructed by authorized to issue securities and this period, PanEnergy is authorized to MCMC, for the purpose of providing assume obligations or liabilities as a issue securities and assume obligations Part 284 transportation service. guarantor, endorser, surety, or otherwise or liabilities as a guarantor, endorser, Any person or the Commission’s staff in respect of any security of another surety, or otherwise in respect of any may, within 45 days after issuance of person; provided that such issuance or security of another person; provided the instant notice by the Commission, assumption is for some lawful object that such issuance or assumption is for file pursuant to Rule 214 of the within the corporate purposes of the some lawful object within the corporate Commission’s Procedural Rules (18 CFR applicant, and compatible with the purposes of the applicant, and 385.214) a motion to intervene of notice public interest, and is reasonably compatible with the public interest, and of intervention and pursuant to Section necessary or appropriate for such is reasonably necessary or appropriate 157.205 of the Regulations under the purposes. for such purposes. Natural Gas Act (18 CFR 157.205) a The Commission reserves the right to The Commission reserves the right to protest to the request. If no protest is require a further showing that neither require a further showing that neither filed within the time allowed therefor, public nor private interests will be public nor private interests will be the proposed activity shall be deemed to adversely affected by continued adversely affected by continued be authorized effective the day after the approval of New Jersey Energy’s approval of PanEnergy’s issuances of time allowed for filing a protest. If a issuances of securities or assumptions of securities or assumptions of liability. protest is filed and not withdrawn liability. Notice is hereby given that the within 30 days after the time allowed Notice is hereby given that the deadline for filing motions to intervene for filing a protest, the instant request deadline for filing motions to intervene or protests, as set forth above, is shall be treated as an application for or protests, as set forth above, is November 1, 1996. authorization pursuant to Section 7 of November 1, 1996. Copies of the full text of the order are Copies of the full text of the order are the Natural Gas Act. available from the Commission’s Public available from the Commission’s Public Reference Branch, 888 First Street, NE., Lois D. Cashell, Reference Branch, 888 First Street NE., Washington, DC 20426. Secretary. Washington, DC 20426. Lois D. Cashell, [FR Doc. 96–27380 Filed 10–24–96; 8:45 am] Lois D. Cashell, Secretary. BILLING CODE 6717±01±M Secretary. [FR Doc. 96–27388 Filed 10–24–96; 8:45 am] [FR Doc. 96–27387 Filed 10–24–96; 8:45 am] BILLING CODE 6717±01±M [Docket No. ER96±2627±000] BILLING CODE 6717±01±M

New Jersey Natural Energy Company; [Docket No. RP96±338±000] Notice of Issuance of Order [Docket No. ER96±2921±000] Texas Eastern Transmission October 21, 1996. PanEnergy Trading and Market Services, L.L.C.; Notice of Issuance of Corporation; Notice Granting Late New Jersey Natural Energy Company Intervention (New Jersey Energy) submitted for filing Order a rate schedule under which New Jersey October 21, 1996. October 21, 1996. Energy will engage in wholesale electric PanEnergy Trading and Market On October 16, 1996, the power and energy transactions as a Services, L.L.C. (PanEnergy) submitted Pennsylvania Office of Consumer marketer. New Jersey Energy also for filing a rate schedule under which Advocate (Pa.OCA) filed a motion to requested waiver of various Commission PanEnergy will engage in wholesale intervene out-of-time in the above- regulations. In particular, New Jersey electric power and energy transactions docketed proceeding. No party filed an Energy requested that the Commission as a marketer. PanEnergy also requested answer in opposition to the motion. grant blanket approval under 18 CFR waiver of various Commission The petitioner appears to have a Part 34 of all future issuances of regulations. In particular, PanEnergy legitimate interest under the law that is securities and assumptions of liability requested that the Commission grant not adequately represented by other by New Jersey Energy. blanket approval under 18 CFR Part 34 parties. Granting the intervention will On October 2, 1996, pursuant to of all future issuances of securities and not cause a delay or prejudice any other delegated authority, the Director, assumptions of liability by PanEnergy. party. It is in the public interest to allow Division of Applications, Office of On October 2, 1996, pursuant to the petitioner to appear in this Electric Power Regulation, granted delegated authority, the Director, proceeding. Accordingly, good cause requests for blanket approval under Part Division of Applications, Office of exists for granting the late intervention. 34, subject to the following: Electric Power Regulation, granted Pursuant to Section 375.302 of the Within thirty days of the date of the requests for blanket approval under Part Commission’s Regulations (18 CFR order, any person desiring to be heard 34, subject to the following: 375.303), the petitional is permitted to or to protest the blanket approval of Within thirty days of the date of the intervene in this proceeding subject to issuances of securities or assumptions of order, any person desiring to be heard the Commission’s rules and regulations 55284 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices under the Natural Gas Act, 15 U.S.C. 200 North Third Street, Bismarck, North 2. Cinergy Services, Inc. §§ 717–717(W). Participation of the late Dakota 58501, filed in Docket No. CP97– [Docket No. ER97–106–000] intervenor shall be limited to matter set 28–000 a request pursuant to Sections Take notice that on October 10, 1996, out in the motion to intervene. The 157.205 and 157.211 of the Cinergy Services, Inc. (Cinergy), admission of the late intervenor shall Commission’s Regulations under the tendered for filing a service agreement not be construed as recognition by the Natural Gas Act (18 CFR 157.205, under Cinergy’s Non-Firm Power Sales Commission that the intervenor might 157.211) for authorization to utilize an Standard Tariff (the Tariff) entered into be aggrieved by any order entered in existing tap under Williston Basin’s between Cinergy and AYP Energy, Inc. this proceeding. blanket certificate issued in Docket No. Cinergy and AYP Energy, Inc. are Lois D. Cashell, CP83–1–000 pursuant to Section 7 of requesting an effective date of October the Natural Gas Act, all as more fully set Secretary. 15, 1996. [FR Doc. 96–27375 Filed 10–24–96; 8:45 am] forth in the request that is on file with Comment date: November 1, 1996, in BILLING CODE 6717±01±M the Commission and open to public accordance with Standard Paragraph E inspection. at the end of this notice. Williston Basin proposes to utilize an [Docket No. ER93±3±004] existing tap to effectuate natural gas 3. Cinergy Services, Inc. transportation deliveries to Montana- The United Illuminating Company; [Docket No. ER97–107–000] Dakota Utilities Co. for ultimate use by Notice of Filing Take notice that on October 10, 1996, additional residential customers in Cinergy Services, Inc. (Cinergy), October 21, 1996. Butte County, South Dakota. tendered for filing a service agreement Take notice that on August 28, 1996, Any person or the Commission’s staff under Cinergy’s Open Access The United Illuminating Company (UI) may, within 45 days after issuance of Transmission Service Tariff (the Tariff) tendered for filing an Updated Market the instant notice by the Commission, entered into between Cinergy and Sonat Power Analysis in compliance with the file pursuant to Rule 214 of the Power Marketing L.P. Commission’s orders in Docket Nos. Commission’s Procedural Rules (18 CFR Cinergy and Sonat Power Marketing ER93–3–000 and ER93–3–001, dated 385.214) a motion to intervene or notice L.P. are requesting an effective date of May 19, 1993, and August 17, 1993, of intervention and pursuant to Section October 1, 1996. respectively, and in compliance with 157.205 of the Regulations under the Comment date: November 1, 1996, in UI’s Wholesale Electric Sales Tariff, Natural Gas Act (18 CFR 157.205) a accordance with Standard Paragraph E FERC Electric Tariff, Original Volume protest to the request. If no protest is at the end of this notice. No. 2, which authorizes UI to sell filed within the time allowed therefor, capacity and associated energy to non- the proposed activity shall be deemed to 4. System Energy Resources, Inc. affiliates at market-based rates. be authorized effective the day after the [Docket No. ER97–108–000] Any person desiring to be heard or to time allowed for filing a protest. If a Take notice that on October 10, 1996, protest said filing should file a motion protest is filed and not withdrawn System Energy Resources, Inc. (SERI), to intervene or protest with the Federal within 30 days after the time allowed tendered for filing an unexecuted Energy Regulatory Commission, 888 for filing a protest, the instant request Fourth Amendment to the Master First Street, N.E., Washington, D.C. shall be treated as an application for Nuclear Decommissioning Trust Fund 20426, in accordance with Rules 211 authorization pursuant to Section 7 of Agreement (Trust Agreement) by and and 214 of the Commission’s Rules of the Natural Gas Act. between SERI and Mellon Bank, N.A., Practice and Procedure (18 CFR 385.211 Lois D. Cashell, the trustee. The Fourth Amendment and 18 CFR 385.214). All such motions Secretary. amends the Trust Agreement to comply or protests should be filed on or before [FR Doc. 96–27382 Filed 10–24–96; 8:45 am] with Section 1,468A–5(a)(4) of the October 29, 1996. Protests will be BILLING CODE 6717±01±M Internal Revenue Service Fund considered by the Commission in Regulations. 36 CFR 1,468A–5(a)(4). The determining the appropriate action to be Trust Agreement is designated as SERI taken, but will not serve to make [Docket No. ER97±105±000, et al.] Rate Schedule FERC No. 2. SERI states protestants parties to the proceeding. that the Fourth Amendment will have Any person wishing to become a party IES Utilities Inc., et al.; Electric Rate no impact on any rate component. must file a motion to intervene. Copies and Corporate Regulation Filings SERI requests that the Fourth of this filing are on file with the Amendment be made effective on the Commission and are available for public October 18, 1996. earliest date possible, although no later inspection. Take notice that the following filings than December 31, 1996. Lois D. Cashell, have been made with the Commission: Comment date: November 1, 1996, in Secretary. 1. IES Utilities Inc. accordance with Standard Paragraph E [FR Doc. 96–27379 Filed 10–24–96; 8:45 am] at the end of this notice. [Docket No. ER97–105–000] BILLING CODE 6717±01±M 5. The Dayton Power and Light Take notice that on October 10, 1996, Company IES Utilities Inc. (IES), tendered for [Docket No. CP97±28±000] filing Appendix 13 and its Amendment [Docket No. ER97–109–000] Williston Basin Interstate Pipeline to the IES and Central Iowa Power Take notice that on October 10, 1996, Company; Notice of Request Under Cooperative (CIPCO) Operating and The Dayton Power and Light Company Blanket Authorization Transmission Agreement. (Dayton), submitted service agreements Copies of the filing were served upon establishing Ohio Edison (OE), Morgan October 21, 1996. CIPCO and the Iowa Utilities Board. Stanley Capital Group Inc. (MSCG), Take notice that on October 16, 1996, Comment date: November 1, 1996, in AYP Energy (AYP), Intercoast Power Williston Basin Interstate Pipeline accordance with Standard Paragraph E Marketing Company (IPM), Carolina Company (Williston Basin), Suite 300, at the end of this notice. Power & Light (CP&L), Citizens Lehman Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices 55285

Power Sales (CLPS) and Williams PP&L requests an effective date of PECO requests an effective date of Energy Services Company (WESC) as October 10, 1996, for the Service September 16, 1996, for the Service customers under the terms of Dayton’s Agreement. Agreement. Open Access Transmission Tariff. PP&L states that copies of this filing PECO states that copies of this filing Dayton requests an effective date of have been supplied to AIG and to the have been supplied to AYP and to the one day subsequent to this filing for the Pennsylvania Public Utility Pennsylvania Public Utility service agreements. Accordingly, Commission. Commission. Dayton requests waiver of the Comment date: November 1, 1996, in Comment date: November 1, 1996, in Commission’s notice requirements. accordance with Standard Paragraph E accordance with Standard Paragraph E Copies of this filing were served upon at the end of this notice. at the end of this notice. OE, MSCG, AYP, IPM, CP&L, CLPS and 9. Pennsylvania Power & Light WESC, and the Public Utilities 12. PECO Energy Company Company Commission of Ohio. [Docket No. ER97–116–000] Comment date: November 1, 1996, in [Docket No. ER97–113–000] Take notice that on October 11, 1996, accordance with Standard Paragraph E Take notice that on October 10, 1996, PECO Energy Company (PECO), filed a at the end of this notice. Pennsylvania Power & Light Company Service Agreement dated September 17, (PP&L), filed a Service Agreement, dated 6. Cinergy Services, Inc. 1996 with Florida Power & Light October 3, 1996, with CNG Power Company (FP&L) under PECO’s FERC [Docket No. ER97–110–000] Services Corp. (CNG) for non-firm point- Electric Tariff Original Volume No. 5 Take notice that on October 10, 1996, to-point transmission service under (Tariff). The Service Agreement adds Cinergy Services, Inc. (Cinergy), PP&L’s Open Access Transmission FP&L as a customer under the Tariff. tendered for filing a service agreement Tariff (Tariff). The Service Agreement under Cinergy’s Open Access adds CNG as an eligible customer under PECO requests an effective date of Transmission Service Tariff (the Tariff) the Tariff. September 17, 1996, for the Service entered into between Cinergy and PP&L requests an effective date of Agreement. Morgan Stanley Capital Group, Inc. October 10, 1996, for the Service PECO states that copies of this filing Cinergy and Morgan Stanley Capital Agreement. have been supplied to FP&L and to the Group, Inc. are requesting an effective PP&L states that copies of this filing Pennsylvania Public Utility date of September 15, 1996. have been supplied to CNG and to the Commission. Comment date: November 1, 1996, in Pennsylvania Public Utility Comment date: November 1, 1996, in accordance with Standard Paragraph E Commission. accordance with Standard Paragraph E at the end of this notice. Comment date: November 1, 1996, in at the end of this notice. accordance with Standard Paragraph E 7. Central Illinois Public Service 13. Northeast Utilities Service Company at the end of this notice. Company [Docket No. ER97–117–000] [Docket No. ER97–111–000] 10. Pennsylvania Power & Light Company Take notice that on October 11, 1996, Take notice that on October 10, 1996, Northeast Utilities Service Company Central Illinois Public Service Company [Docket No. ER97–114–000] (NUSCO), tendered for filing a Service (CIPS), submitted for filing a service Take notice that on October 10, 1996, Agreement to provide Non-Firm Point- agreement, dated September 11, 1996, Pennsylvania Power & Light Company to-Point Transmission Service to establishing PacifiCorp Power (PP&L), filed a Service Agreement, dated Virginia Electric and Power Company Marketing, Inc. (PacifiCorp) as a September 13, 1996, with PECO Energy under the NU System Companies Open customer under the terms of CIPS’ Open Company—Power Team (PECO) for non- Access Transmission Service Tariff No. Access Transmission Tariff. firm point-to-point transmission service 8. CIPS requests an effective date of under PP&L’s Open Access NUSCO states that a copy of this filing September 11, 1996 for the service Transmission Tariff. The Service has been mailed to Virginia Electric and agreement. Accordingly, CIPS requests Agreement adds PECO as an eligible Power Company. waiver of the Commission’s notice customer under the Tariff. NUSCO requests that the Service requirements. Copies of this filing were PP&L requests an effective date of July Agreement become effective October 11, served upon PacifiCorp and The Illinois 17, 1996, for the Service Agreement. 1996. Commerce Commission. PP&L states that copies of this filing Comment date: November 1, 1996, in have been supplied to PECO and to the Comment date: November 1, 1996, in accordance with Standard Paragraph E Pennsylvania Public Utility accordance with Standard Paragraph E at the end of this notice. Commission. at the end of this notice. Comment date: November 1, 1996, in 8. Pennsylvania Power & Light 14. Duke Power Company accordance with Standard Paragraph E Company at the end of this notice. [Docket No. ER97–118–000] [Docket No. ER97–112–000] Take notice that on October 11, 1996, 11. PECO Energy Company Take notice that on October 10, 1996, Duke Power Company (Duke), tendered Pennsylvania Power & Light Company [Docket No. ER97–115–000] for filing a Market Rate Service (PP&L) filed a Service Agreement, dated Take notice that on October 11, 1996, Agreement between Duke and September 18, 1996, with AIG Trading PECO Energy Company (PECO), filed a TransCanada Power Corporation Corporation (AIG) for non-firm point-to- Service Agreement dated September 16, (TCPC). Duke requests that the point transmission service under PP&L’s 1996 with AYP Energy, Inc. (AYP) Agreement be made effective as of Open Access Transmission Tariff under PECO’s FERC Electric Tariff September 30, 1996. (Tariff). The Service Agreement adds Original Volume No. 5 (Tariff). The Comment date: November 1, 1996, in AIG as an eligible customer under the Service Agreement adds AYP as a accordance with Standard Paragraph E Tariff. customer under the Tariff. at the end of this notice. 55286 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices

15. Alabama Power Company 5. Service Schedule E—Emergency Service 1996, and Cincinnati dated October 2, 6. Service Schedule F—Power Sales by [Docket No. ER97–119–000] 1996, entered into pursuant to Wabash Valley MidAmerican’s Open Access Take notice that on October 11, 1996, 7. Service Schedule G—Power Sales by PSI Alabama Power Company, tendered for 8. Service Schedule H—Load Following Transmission Tariff. filing Amendment No. 1 to the Service MidAmerican requests an effective Amended and Restated Agreement for 9. Service Schedule I—Supplemental date of October 2, 1996, for the Partial Requirements Service and Operating Reserves Agreements with PSI and Cincinnati, Complementary Services with the 10. Service Schedule J—Unscheduled Energy and accordingly seeks a waiver of the Delivery Service Alabama Municipal Electric Authority Commission’s notice requirement. (FERC Rate Schedule No. 168). Under Also, PSI and Wabash Valley have MidAmerican has served a copy of the this amendment, the parties have agreed to terminate the present filing on PSI, Cincinnati, the Iowa revised the applicable rates and charges agreement between the parties, Rate Utilities Board, the Illinois Commerce so as to produce a decrease in the total Schedule FERC No. 233—Power Commission and the South Dakota Coordination Agreement between PSI revenues paid by AMEA for PR service. Public Utilities Commission. The Amendment also reflects the Energy, Inc. and Wabash Valley Power parties’ agreement concerning other Association, Inc. Comment date: November 1, 1996, in issues, such as the application of certain PSI and Wabash Valley have accordance with Standard Paragraph E notice provisions under the contract. requested a waiver of the commission’s at the end of this notice. Comment date: November 1, 1996, in Rules and Regulations to permit the 20. Duke Power Company accordance with Standard Paragraph E proposed agreement to become effective at the end of this notice. November 1, 1996. [Docket No. ER97–124–000] Copies of the filing were served on 16. PacifiCorp Take notice that on October 15, 1996, Wabash Valley Power Association, Inc., [Docket No. ER97–120–000] and the Indiana Utility Regulatory Duke Power Company (Duke), tendered Take notice that on October 11, 1996, Commission. for filing a Transmission Service PacifiCorp, tendered for filing in Comment date: November 1, 1996, in Agreement (TSA) between Duke, on its accordance with 18 CFR Part 35 of the accordance with Standard Paragraph E own behalf and acting as agent for its Commission’s Rules and Regulations, a at the end of this notice. wholly-owned subsidiary, Nantahala Service Agreement with Public Utility Power and Light Company, and Sonat 18. United Power Technologies, Inc. District No. 1 of Okanogan County Power Marketing, L.P. (Sonat). Duke under, PacifiCorp’s FERC Electric Tariff, [Docket No. ER97–122–000] states that the TSA sets out the Second Revised Volume No. 3, Service Take notice that on October 11, 1996, transmission arrangements under which Schedule PPL–3. United Power Technologies, Inc. (UPT) Duke will provide Sonat non-firm point- Copies of this filing were supplied to applied to the Commission for (1) to-point transmission service under its the Washington Utilities and acceptance of UPT’s Rate Schedule Pro Forma Open Access Transmission Transportation Commission and the FERC No. 1; (2) a disclaimer of Tariff. Public Utility Commission of Oregon. jurisdiction over UPT’s power brokering A copy of this filing may be obtained Comment date: November 1, 1996, in activities; (3) blanket authorization to accordance with Standard Paragraph E from PacifiCorp’s Regulatory sell electricity at market-based rates; (4) at the end of this notice. Administration Department’s Bulletin waiver of certain Commission Board System through a personal Regulations; and (5) such other waivers Standard Paragraph computer by calling (503) 464–6122 and authorizations as have been granted (9600 baud, 8 bits, no parity, 1 stop bit). to other power marketers. E. Any person desiring to be heard or Comment date: November 1, 1996, in UPT intends to engage in electric to protest said filing should file a accordance with Standard Paragraph E power and energy transactions as a motion to intervene or protest with the at the end of this notice. marketer and broker. UPT is not in the Federal Energy Regulatory Commission, 17. Cinergy Services, Inc. business of generating, transmitting, or 888 First Street, N.E., Washington, D.C. distributing electric power. UPT has no 20426, in accordance with Rules 211 [Docket No. ER97–121–000] affiliates and is not a subsidiary or and 214 of the Commission’s Rules of Take notice that on October 11, 1996, otherwise under the control of any other Practice and Procedure (18 CFR 385.211 Cinergy Services, Inc. (Cinergy), business entity. and 18 CFR 385.214). All such motions tendered for filing on behalf of its Comment date: November 1, 1996, in operating company, PSI Energy, Inc. or protests should be filed on or before accordance with Standard Paragraph E the comment date. Protests will be (PSI), a Power Coordination Agreement, at the end of this notice. dated March 1, 1996, between PSI, considered by the Commission in Cinergy Services, Inc. and Wabash 19. MidAmerican Energy Company determining the appropriate action to be taken, but will not serve to make Valley Power Association, Inc. (Wabash [Docket No. ER97–123–000] protestants parties to the proceeding. Valley). Take notice that on October 11, 1996, The Power Coordination Agreement Any person wishing to become a party MidAmerican Energy Company provides for the following service must file a motion to intervene. Copies (MidAmerican), 106 East Second Street, between PSI and Wabash Valley: of this filing are on file with the Davenport, Iowa 52801, filed with the Commission and are available for public 1. Service Schedule A—Gibson Unit No. 5 Commission Firm Transmission Service Reserve Capacity and Energy Agreements with PSI Energy, Inc. (PSI) inspection. 2. Service Schedule B—Gibson Unit No. 5 dated October 2, 1996, and The Lois D. Cashell, Replacement Energy 3. Service Schedule C—Firm Capacity and Cincinnati Gas & Electric Company Secretary. Energy (Cincinnati), dated October 2, 1996, and [FR Doc. 96–27386 Filed 10–24–96; 8:45 am] 4. Service Schedule D—Peaking Capacity and Non-Firm Transmission Service BILLING CODE 6717±01±P Energy Agreements with PSI dated October 1, Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices 55287

[Docket No. CP96±687±000] whenever it considers the issuance of a • Alternative siting feasibility. Certificate of Public Convenience and Iroquois Gas Transmission System, Necessity. NEPA also requires us to Public Participation L.P.; Notice of Intent To Prepare an discover and address concerns the Environmental Assessment for the You can make a difference by sending public may have about proposals. We a letter addressing your specific Proposed Athens Compressor Station call this ‘‘scoping’’. The main goal of the Project and Request for Comments on comments or concerns about the project. scoping process is to focus the analysis You should focus on the potential Environmental Issues in the EA on the important environmental effects of the proposal, environmental issues. By this Notice of October 21, 1996. alternatives to the proposal (including Intent, the Commission requests public The staff of the Federal Energy alternative locations), and measures to Regulatory Commission (FERC or comments on the scope of the issues it will address in the EA. All comments avoid or lessen environmental impact. Commission) will prepare an The more specific your comments, the environmental assessment (EA) that will received are considered during the preparation of the EA. State and local more useful they will be. Please follow discuss the environmental impacts of the instructions below to ensure that the construction and operation of the government representatives are encouraged to notify their constituents your comments are received and facilities proposed in the Athens properly recorded: Compressor Station Project.1 This EA of this proposed action and encourage • will be used by the Commission in its them to comment on their areas of Address your letter to: Lois Cashell, decision-making process to determine concern. Secretary, Federal Energy Regulatory whether an environmental impact The EA will discuss impacts that Commission, 888 First St., N.E., statement is necessary and whether to could occur as a result of the Washington, D.C. 20426; approve the project. construction and operation of the • proposed project under these general Reference Docket No. CP96–687– Summary of the Proposed Project headings: 000; • Geology and soils • Send a copy of your letter to: Mr. Iroquois Gas Transmission System, • L.P. (Iroquois) wants to expand the Water resources, fisheries, and Mark Jensen, EA Project Manager, capacity of its facilities in New York wetlands Federal Energy Regulatory Commission, • Vegetation and wildlife and Connecticut to transport an • 888 First St., N.E., PR–11.2, Endangered and threatened species Washington, D.C. 20426; and additional 30 million cubic feet per day • Public safety of natural gas for two shippers. Iroquois • Land use • Mail your comments so that they seeks authority to construct and operate • Cultural resources will be received in Washington, D.C. on 9,500 horsepower of natural gas • Air quality and noise or before November 22, 1996. compression at the proposed Athens • Hazardous waste If you wish to receive a copy of the compressor Station in Greene County, We will also evaluate possible EA, you should request one from Mr. New York. alternatives to the proposed project and The specific location of the facility is make recommendations on how to Jensen at the above address. shown on the map in appendix 1.2 The lessen or avoid impacts on the various Becoming an Intervenor compressor facilities would be located resource areas. about 2,700 feet south of the Athens- Our independent analysis of the In addition to involvement in the EA Leeds Turnpike, which forms the issues will be in the EA. Depending on scoping process, you may want to northern boundary of the proposed site. the comments received during the become an official party to the Land Requirements for Construction scoping process, the EA may be proceeding or become an ‘‘intervenor’’. published and mailed to Federal, state, Among other things, intervenors have Construction of the proposed facility and local agencies, public interest the right to receive copies of case- would require about 25.7 acres of land. groups, interested individuals, affected related Commission documents and Following construction, about 15.3 acres landowners, newspapers, libraries, and filings by other intervenors. Likewise, would be maintained as a new the Commission’s official service list for each intervenor must provide copies of aboveground facility site. The remaining this proceeding. A comment period will its filings to all other parties. If you 10.4 acres of land would be restored and be allotted for review if the EA is want to become an intervenor you must allowed to revert to open space. The published. We will consider all file a motion to intervene according to closest residence is about 2,400 feet comments on the EA before we Rule 214 of the Commission’s Rules of west of the proposed compressor recommend that the Commission building. Practice and Procedure (18 CFR approve or not approve the project. 385.214) (see appendix 2). The EA Process Currently Identified Environmental The date for filing timely motions to The National Environmental Policy Issues intervene in this proceeding has passed. Act (NEPA) requires the Commission to We have already identified several Therefore, parties now seeking to file take into account the environmental issues that we think deserve attention late interventions must show good impacts that could result from an action based on a preliminary review of the cause, as required by section proposed facility and the environmental 385.214(b)(3), why this time limitation 1 Iroquois Gas Transmission System, L.P.’s information provided by Iroquois. This should be waived. Environmental issues application was filed with the Commission under Section 7 of the Natural Gas Act and Part 157 of preliminary list of issues may be have been viewed as good cause for later the Commission’s Regulations. changed based on your comments and intervention. 2 The appendices referenced in this notice are not our analysis. You do not need intervenor status to being printed in the Federal Register. Copies are • Conversion of the Athens Airport to available from the Commission’s Public Reference industrial use. have your scoping comments and Files Maintenance Branch, 888 First Street, • considered. N.E., Washington D.C. 20426, or call (202) 208– Effect the proposed compressor 1371. Copies of the appendices were sent to all station would have on air quality in the Additional information about the those receiving this notice in the mail. vicinity. proposed project is available from Mr. 55288 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices

Mark Jensen, EA Project Manager, at Station 100 in Chilton County, Alabama; intervenor status to have your (202) 208–0828. and comments considered. Lois D. Cashell, • One compressor (gas turbine) from Additional information about this Secretary. 12,600 hp to 15,000 hp at each of three project is available from Mr. Mark [FR Doc. 96–27383 Filed 10–24–96; 8:45 am] stations: Compressor Station 110 in Jensen, Environmental Project Manager. Randolph County, Alabama; BILLING CODE 6717±01±M Lois D. Cashell, Compressor Station 130 in Madison Secretary. County, Georgia; and Compressor [FR Doc. 96–27384 Filed 10–24–96; 8:45 am] [Docket No. CP96±16±000] Station 140 in Spartanburg County, South Carolina. BILLING CODE 6717±01±M Transcontinental Gas Pipe Line The purpose of the proposed facilities Corporation; Notice of Availability of is to provide additional firm the Environmental Assessment for the Notice of Amendment of License transportation capacity of up to 145,666 Applications Proposed Sunbelt Expansion Project thousand cubic feet per day of natural gas to nine local distribution companies October 21, 1996. October 21, 1996. and one electric cogeneration plant. Take notice that the following The staff of the Federal Energy The EA has been placed in the public Regulatory Commission (FERC or hydroelectric application has been filed files of the FERC and is available for with the Commission and is available Commission) has prepared an public inspection at: Federal Energy environmental assessment (EA) on the for public inspection: Regulatory Commission, Public a. Type of Application: Amendment natural gas pipeline facilities proposed Reference and Files Maintenance by Transcontinental Gas Pipe Line of License Applications. Branch, 888 First Street, N.E., b. Projects Nos.: P–11132–001, P– Corporation (Transco) in the above- Washington, DC 20426, (202) 208–1371. 11472–001, P–11482–001, and P– referenced docket. For both the new Copies of the EA have been mailed to 11566–001. Compressor Station 105 in Coosa Federal, state and local agencies, public c. Date Filed: September 25, 1996. County, Alabama and the new interest groups, interested individuals, d. Applicants: Consolidated Hydro Compressor Station 125 in Walton newspapers, and parties to this Maine, Inc., and Ridgewood Maine County, Georgia, the staff is requesting proceeding. Hydro Partners, L.P. specific comments regarding the siting A limited number of copies of the EA e. Name of Projects and Locations: of these new compressor stations. We are available from: Mr. Mark Jensen, (1) Eustis Dam Hydro Project No. request comments on a potential Environmental Project Manager, 11132, on the Dead River, in Franklin reasonable alternative for each station, Environmental Review and Compliance County, Maine; the effect of relocating a compressor Branch II, Office of Pipeline Regulation, (2) Burnham Hydro Project No. 11472, station on the proposed in-service date, 888 First Street, N.E., PR 11.2, on the Sebasticook River, in Somerset the cost of relocating the compressor Washington, DC 20426, (202) 208–0828. and Waldo Counties, Maine; stations and what additional mitigation Any person wishing to comment on (3) Mechanic Falls Hydro Project No. would be necessary at the proposed the EA may do so. Written comments 11482, on the Little Androscoggin River, sites. must reference Docket No. CP96–16–000 in Androscoggin County, Maine; and The EA was prepared to satisfy the and be addressed to: Office of the (4) Damariscotta Mills Hydro Project requirements of the National Secretary, Federal Energy Regulatory No. 11566, on the Damariscotta River, in Environmental Policy Act. The staff Commission, 888 First Street, N.E., Lincoln County, Maine. concludes that approval of the proposed Washington, DC 20426. f. Filed Pursuant to: Federal Power project, with appropriate mitigating In order to have your comments Act, 16 U.S.C. 791–825(r). measures, would not constitute a major considered, we request that they be filed g. Applicants Contact: Federal action significantly affecting the as soon as possible. Comments must be quality of the human environment. received no later than November 20, Stephen E. Champagne, Esq., Curtis The EA addresses the potential 1996, to ensure consideration prior to a Thaxter Stevens Broder & Micoleau, environmental effects of the Commission decision on this proposal. LLC, One Canal Plaza, P.O. Box 7320, construction and operation of the A copy of any comments should also be Portland, ME 04112, (207) 775–2361 following facilities: sent to Mr. Mark Jensen, Environmental Edward M. Stern, Esq., Consolidated • 14.9 miles of 42-inch-diameter Project Manager, at the above address. Hydro, Inc., 680 Washington Blvd., pipeline loop (Loop D) from milepost Comments will be considered by the Stamford, CT 06901, (203) 425–8850. (MP) 1222.66 to MP 1237.58 in Commission but will not serve to make h. FERC Contact: Ed Lee (202) 219– Cherokee County, South Carolina; the commenter a party to the 2809. • 15,000 horsepower (hp) of proceeding. Any person seeking to i. Comment Date: November 18, 1996. compression (gas turbine) at a new become a party to the proceeding must j. Description of Request: station, to be known as Compressor file a motion to intervene pursuant to Consolidated Hydro Maine, Inc. Station 105 in Coosa County, Alabama; Rule 214 of the Commission’s Rules of (Consolidated), applicant for the • 15,000 hp of compression (gas Practice and Procedure (18 CFR pending license applications for the turbine) at a new station to be known as 385.214). proposed projects above, and Compressor Station 125 in Walton The date for filing timely motions to Ridgewood Maine Hydro Partner, L.P. County, Georgia; and intervene in this proceeding has passed. (Ridgewood) request that the license • 15,000 hp of compression (gas Therefore, parties now seeking to file applications for the before-mentioned turbine) at the existing Compressor late interventions must show good projects each be amended to change the Station 80 in Jones and Jasper Counties, cause, as required by Section name of the applicant from Mississippi. 385.214(b)(3), why this time limitation Consolidated to Ridgewood. Transco also seeks to uprate: should be waived. Environmental issues Consolidated is being merged into • A compressor (gas turbine) from have been viewed as good cause for late Ridgewood to facilitate a change in the 14,100 hp to 15,000 hp at Compressor intervention. You do not need beneficial interest in the projects. There Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices 55289 is no debt associated with these [Project No. 2663±004 Minnesota] Ms. Nina Archabal, Director, Minnesota mergers. Historical Society, 345 Kellogg Blvd. Minnesota Power & Light Company; k. This notice also consists of the West, St. Paul, MN 55102 Notice of Proposed Restricted Service Dr. Robert D. Bush, Advisory Council on following standard paragraphs: B, C1, List for a Programmatic Agreement for and D2. Historic Preservation, The Old Post Managing Properties Included in or Office Building, Suite 809, 1100 B. Comments, Protests, or Motions to Eligible for Inclusion in the National Pennsylvania Ave., NW., Washington, Intervene—Anyone may submit Register of Historic Places D.C. 20004 comments, a protest, or a motion to October 21, 1996. Mr. Christopher D. Anderson, Attorney, intervene in accordance with the Rule 2010 of the Federal Energy Minnesota Power & Light Company, requirements of Rules of Practice and 30 West Superior Street, Duluth, MN Procedure, 18 CFR 385.210, .211, .214. Regulatory Commission’s (Commission) Rules of Practice and Procedure 55802 In determining the appropriate action to provides that, to eliminate unnecessary Any person on the official service list take, the Commission will consider all expense or improve administrative for the above-captioned proceedings protests or other comments filed, but efficiency, the Secretary may establish a may request inclusion on the restricted only those who file a motion to restricted service list for a particular service list, or may request that a intervene in accordance with the phase or issue in a proceeding.1 The restricted service list not be established, Commission’s Rules may become a restricted service list should contain the by filing a motion to that effect within party to the proceeding. Any comments, names of persons on the service list 15 days of this notice date. protests, or motions to intervene must who, in the judgment of the decisional An original and 8 copies of any such be received on or before the specified authority establishing the list, are active motion must be filed with the Secretary comment date for the particular participants with respect to the phase or of the Commission (888 First Street, application. issue in the proceeding for which the N.E., Washington, D.C. 20426) and must C1. Filing and Service of Responsive list is established. be served on each person whose name Documents—Any filings must bear in The Commission is consulting with appears on the official service list. If no all capital letters the title the Minnesota Historical Society such motions are filed, the restricted ‘‘COMMENTS’’, (hereinafter, SHPO) and the Advisory service list will be effective at the end ‘‘RECOMMENDATIONS FOR TERMS Council on Historic Preservation of the 15 day period. Otherwise, a further notice will be issued ruling on AND CONDITIONS’’, ‘‘PROTEST’’, OR (hereinafter, Council) pursuant to the the motion. ‘‘MOTION TO INTERVENE’’, as Council’s regulations, 36 CFR Part 800, applicable, and the Project Number of implementing Section 106 of the Lois D. Cashell, the particular application to which the National Historic Preservation Act, as Secretary. filing refers. Any of the above-named amended (16 U.S.C. Section 470f), to [FR Doc. 96–27377 Filed 10–24–96; 8:45 am] documents must be filed by providing prepare a programmatic agreement for BILLING CODE 6717±01±M managing properties included in, or the original and the number of copies eligible for inclusion in, the National provided by the Commission’s Register of Historic Places at Project No. Office of Hearings and Appeals regulations to: The Secretary, Federal 2663–004. Energy Regulatory Commission, 888 The programmatic agreement, when Notice of Issuance of Decisions and First Street, N.E., Washington, D.C. executed by the Commission, the SHPO, Orders During the Week of September 20426. A copy of any motion to and the Council, would satisfy the 9 Through September 13, 1996 intervene must also be served upon each Commission’s Section 106 During the week of September 9 representative of the Applicant responsibilities for all individual specified in the particular application. through September 13, 1996, the undertakings carried out in accordance decisions and orders summarized below D2. Agency Comments—Federal, with the license until the license expires were issued with respect to appeals, state, and local agencies are invited to or is terminated (36 CFR 800.13[e]). The applications, petitions, or other requests file comments on the described Commission’s responsibilities pursuant filed with the Office of Hearings and application. A copy of the application to Section 106 for the above project Appeals of the Department of Energy. may be obtained by agencies directly would be fulfilled through one The following summary also contains a from the Applicant. If an agency does programmatic agreement for comments list of submissions that were dismissed not file comments within the time under Section 106. The executed by the Office of Hearings and Appeals. specified for filing comments, it will be programmatic agreement would be Copies of the full text of these presumed to have no comments. One incorporated into any order issuing decisions and orders are available in the copy of an agency’s comments must also license. Public Reference Room of the Office of be sent to the Applicant’s Minnesota Power & Light Company, Hearings and Appeals, Room 1E–234, representatives. as prospective licensee for Project No. Forrestal Building, 1000 Independence 2663–004, is invited to participate in Lois D. Cashell, Avenue, S.W., Washington, D.C. 20585– consultation to develop the Secretary. 0107, Monday through Friday, between programmatic agreement and to sign as the hours of 1:00 p.m. and 5:00 p.m., [FR Doc. 96–27376 Filed 10–24–96; 8:45 am] a concurring party to the programmatic except federal holidays. They are also BILLING CODE 6717±01±M agreement. available in Energy Management: For purposes of commenting on the Federal Energy Guidelines, a programmatic agreement, we propose to commercially published loose leaf restrict the service list for Project No. reporter system. Some decisions and 2663–004 as follows: orders are available on the Office of Hearings and Appeals World Wide Web 1 18 CFR 385.2010. site at http://www.oha.doe.gov. 55290 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices

Dated: October 17, 1996. to the FOIA under 10 C.F.R. § 1004.3(e), (FOIA). In considering the Appeal, the George B. Breznay, and not subject to the Privacy Act. DOE/ DOE confirmed that the GFO followed Director, Office of Hearings and Appeals. RL also released some documents which procedures reasonably calculated to were under the control of the DOE, but uncover the requested information. Decision List No. 989 redacted the names and lengths of Accordingly, the Appeal was denied. Appeals service of WHC employees, under William Donnelly, 9/11/96, VFA–0202 Cindy David, 9/12/96, VFA–0204 Exemption 6 of the FOIA. In considering the Appeal, the DOE first determined Cindy David filed an Appeal from a The DOE issued a Decision and Order that WHC was not an agency and partial denial by the Western Area denying a Freedom of Information Act therefore not subject to the Privacy Act. Power Administration (WAPA) of a Appeal that was filed by William The DOE also found that the requested Request for Information which Ms. Donnelly. In his Appeal, Mr. Donnelly documents were not agency records, David had submitted under the Freedom contested the adequacy of the search for and that those documents belonged of Information Act. In considering the responsive documents performed by the under contract to WHC. The DOE then Appeal, the DOE found that material DOE’s Pittsburgh Energy Technology concluded that Exemption 6 did not which WAPA withheld by claiming the Center. In the Decision, the DOE found protect the material withheld by DOE/ protection of Exemption 4, overhead that the search for responsive RL. Neither length of service nor general expense and general and administrative documents was adequate. age are the type of personal information expense data, was indeed exempt from usually protected by Exemption 6. Personnel Security Hearing disclosure as proprietary commercial Accordingly, the DOE granted the information. The DOE concluded that Appeal in part and remanded the matter Oak Ridge Operations Office, 9/11/96, release of the withheld material would to DOE/RL for further action. VSO–0096 cause competitive harm to the submitter, Salazar Associates Mary Towles Taylor, 9/9/96, VFA–0201 An Office of Hearings and Appeals International. Accordingly, the Appeal Mary Towles Taylor filed an Appeal Hearing Officer issued an opinion under was denied. from a determination by the DOE’s 10 C.F.R. Part 710 concerning the eligibility of an individual for access Dennis J. McQuade, 9/9/96, VFA–0200 Freedom of Information Office that no records exist which would indicate authorization. After considering the Dennis J. McQuade filed an Appeal whether her father had been exposed to testimony at the hearing convened at the from a determination by the DOE’s Oak radiation during his employment at the request of the individual and all other Ridge Operations Office (OR), which Oak Ridge Operations Office. After information in the record, the Hearing denied a request for information he had considering the Appeal, the DOE Officer found that the individual (i) filed under the Freedom of Information remanded the matter so that an deliberately omitted significant Act (FOIA). OR stated that it conducted additional search for responsive information from his Questionnaire for a search of its files which included the documents could be conducted. Sensitive Positions, which is derogatory Office of Assistant Manager for Defense information under 10 C.F.R. § 710.8(f), Programs, the Quality and Reliability Accordingly, the Appeal was granted in part. (ii) been diagnosed by a board-certified Division, the Safeguards and Security psychiatrist as suffering from alcohol Division, and the Office of Chief National Security Archive, 9/13/96, abuse, which is derogatory information Counsel. OR stated that the only record VFA–0033 under 10 C.F.R. § 710.8(j), and (iii) been which could be located was a record The National Security Archive filed arrested on a variety of charges, which responded to item 2 of Mr. an Appeal from a denial by the DOE’s including three recent arrests for driving McQuade’s request. OR provided that Oakland Operations Office of a request while under the influence of alcohol, record to Mr. McQuade, but stated that for information that it filed under the and had a number of longstanding no documents could be located in Freedom of Information Act (FOIA). In delinquent financial obligations, all of response to item 1 and item 3 of his considering the information that was which tend to show that the individual request. The Appeal challenged the withheld, pursuant to a review by the is not reliable, and thus constitute adequacy of the search conducted by Director of Security Affairs, as National derogatory information under 10 C.F.R. OR. In considering the Appeal, the DOE Security Information and Restricted § 710.8(l). The Hearing Officer further found that OR conducted an adequate Data under Exemptions 1 and 3 of the found that the individual failed to search which was reasonably calculated FOIA, the DOE determined that all of present sufficient evidence to mitigate to discover documents responsive to Mr. the material previously identified as the derogatory information. McQuade’s Request. Accordingly, the withholdable must continue to be Accordingly, the Hearing Officer Appeal was denied. withheld. However, more precise recommended that the individual not Diane C. Larson, 9/9/96, VFA–0199 deletions now permit additional receive access authorization. portions of the requested information to Diane C. Larson filed an Appeal of a Refund Applications determination issued to her in response be released. Accordingly, the Appeal to a request under the Freedom of was granted in part. The Office of Hearings and Appeals Information Act (FOIA) and the Privacy US Solar Roof, 9/12/96, VFA–0203 issued the following Decisions and Act. In the determination, the DOE’s US Solar Roof (USSR) filed an Appeal Orders concerning refund applications, Richland Operations Office (DOE/RL) from a determination by the DOE’s which are not summarized. Copies of stated that most of the requested Golden Field Office GFO (Manager). In the full texts of the Decisions and documents were the property of that determination, the GFO denied a Orders are available in the Public Westinghouse Hanford Company (WHC) request for information filed by USSR Reference Room of the Office of and were not agency records, not subject under the Freedom of Information Act Hearings and Appeals. BUCKEYE COOP ELEVATOR CO., ET AL ...... RG272–4 09/12/96 CITY OF ST. PAUL ...... RJ272–00021 09/09/96 CLIFFORD COHEN, ET AL ...... RF272–85021 09/11/96 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices 55291

CRUDE OIL SUPPLE REF DIST ...... RB272–00086 09/12/96 GENERAL MOTOR LINES, INC...... RF272–97362 09/12/96 GULF OIL CORPORATION/LEO & GLEN COMBS, INC...... RF300–21834 09/09/96 S.T. WOOTEN CONSTRUCTION CO...... RR272–238 09/11/96 SPIVEY, INC...... RC272–350 09/09/96 SPIVEY, INC...... RC272–351 Dismissals The following submissions were dismissed:

Name Case No.

BLUE RIDGE TRUSS & SUPPLY, INC...... RG272±736 E.D. FEE TRANSFER, INC...... RF272±95260 KEWAUNEE COOPERATIVE ...... RG272±695 MIKE HILL FARMS, INC...... RK272±820 NATIONAL ENTERPRISES ...... RK272±854

[FR Doc. 96–27419 Filed 10–24–96; 8:45 am] creation of the ‘‘super’’ (also known as Energy Policy Act; and (iii) while the BILLING CODE 6450±01±P the ‘‘hydrogen’’ or ‘‘thermonuclear’’) DOE will ultimately defer to the rulings bomb and the creation of the ‘‘second of the federal courts, the collection of lab’’ (Lawrence-Livermore National assessments will continue while the Notice of Issuance of Decisions and Laboratory). After review by the DOE courts are considering the Orders During the Week of August 19 Office of Classification, the constitutionality of the relevant Through August 23, 1996 Albuquerque Operations Office provisions of the Energy Policy Act. During the week of August 19 through withheld all or part of forty-seven Accordingly, CG&E’s Appeal was August 23, 1996, the decisions and responsive documents under Exemption denied. 3 as containing nuclear weapons design orders summarized below were issued David L. Anderson, 8/20/96, VFA–0197 with respect to appeals, applications, or stockpile information that qualified petitions, or other requests filed with as ‘‘Restricted Data’’ or ‘‘Formerly David L. Anderson filed an Appeal the Office of Hearings and Appeals of Restricted Data’’ within the meaning of from a denial by the Department of the Department of Energy. The the withholding statute, the Atomic Energy’s Bonneville Power following summary also contains a list Energy Act of 1954. Professor Bernstein Administration (BPA) of a request for of submissions that were dismissed by appealed the withholdings in eight information which he had submitted the Office of Hearings and Appeals. documents. After considering the under the Freedom of Information Act Copies of the full text of these matter, the DOE determined that some (FOIA). Anderson sought copies of decisions and orders are available in the additional material now could be officially written statements, complaints Public Reference Room of the Office of declassified in six documents. The DOE and depositions made by certain Hearings and Appeals, Room 1E–234, found the deletions in two of the individuals. BPA identified as Forrestal Building, 1000 Independence documents were proper. Accordingly, responsive a report of an investigation Avenue, S.W., Washington, D.C. 20585– the Appeal was denied in part and conducted on behalf of the BPA Office 0107, Monday through Friday, between granted in part, and properly of General Counsel by an outside the hours of 1:00 p.m. and 5:00 p.m., declassified information was released to investigator between September 14, except federal holidays. They are also Professor Bernstein. 1995, and November 20, 1995. BPA available in Energy Management: Cincinnati Gas & Electric Co., 8/19/96, withheld the report in its entirety, Federal Energy Guidelines, a VEA–0002 including the exhibits to the report, commercially published loose leaf pursuant to the attorney work product reporter system. Some decisions and Cincinnati Gas & Electric Co. filed an privilege of FOIA Exemption 5. In orders are available on the Office of Appeal from a determination issued by considering the Appeal, the DOE found Hearings and Appeals World Wide Web the Department of Energy’s (DOE) Office that: (i) The report in question is site at http://www.oha.doe. gov. of Environmental Management (OEM). precisely the type of document meant to Dated: October 17, 1996. CG&E claimed that: (i) the OEM be protected by the work product George B. Breznay, erroneously determined its liability for privilege; (ii) the existence of tangible Director, Office of Hearings and Appeals. payment into the Uranium Enrichment risks to the interests protected by the Decontamination and Decommissioning work product privilege satisfies the Decision List No. 986 Fund (the D&D Fund) established under reasonably foreseeable harm standard Appeals the Energy Policy Act of 1992; (ii) Ohio set forth by the Attorney General in state law would prohibit CG&E from 1993; but (iii) to identify and, if not Barton J. Bernstein, 8/23/96, LFA–0108 passing through its assessment to its otherwise exempt, release certain intra- Professor Barton J. Bernstein of ratepayers; (iii) the assessment of agency documents responsive to the Stanford University filed an Appeal of utilities for payment into the D&D Fund request without indicating which of a determination issued to him by the was an unconstitutional taking of those documents became exhibits to the Albuquerque Operations Office of the property. The DOE found that: (i) the report will not violate the work product Department of Energy (DOE) in response firm was properly assessed for uranium privilege. Accordingly, the matter was to a Request for Information submitted enrichment services that it purchased remanded in part to BPA to conduct a under the Freedom of Information Act from the DOE and did not sell in the search for concerning the appellant and (FOIA). Professor Bernstein had secondary market; (ii) Ohio state law authored by the individuals named in requested information related to the would be preempted by the federal his request, and to issue a new 55292 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices determination either releasing the that might lead him to act contrary to META-DOE contract at issue. Further, documents located or explaining the the best interests of the national the Hearing Officer found that because reasons for withholding the information. security. Accordingly, the Hearing META’s work concerned waste The Appeal was denied in all other Officer recommended that the management and environmental respects. individual’s access authorization not be restoration, META was the type of restored. contractor which the DOE intended to Southwest Research and Information cover under the part 708 regulations. Center, 8/19/96, VFA–0195 Request for Exception Therefore, the Hearing Officer The Southwest Research and Lee Oil Company, 8/20/96, VEE–0030 determined that META employees had Information Center (SRIC) filed an Lee Oil Company (Lee) filed an performed work at DOE sites as defined Appeal from a determination issued to Application for Exception from the by Part 708 and thus denied META’s it by the Department of Energy (DOE) Energy Information Administration Motion. Headquarters’ Office of the Executive (EIA) requirement that it file Form EIA– Refund Application Secretary (ES). In its Appeal, SRIC 782B, the ‘‘Resellers’/Retailers’ Monthly asserted that ES improperly failed to Petroleum Product Sales Report.’’ The Eason Oil Co./ Farmland Industries, provide it with documents regarding Secretary/Treasurer of Lee requested Inc., 8/21/96, RF352–1 several specified meetings it had relief from the EIA reporting requested pursuant to the FOIA. During requirement because he believed the The DOE issued a Decision and Order the pendency of the Appeal, several requirement was unduly burdensome to concerning a refund application that potentially responsive documents were the company. In considering this Farmland Industries, Inc. (Farmland) discovered by ES. Consequently, the request, the DOE found that the burden had submitted in the Eason Oil DOE remanded the matter back to ES so placed upon Lee, due to the temporary Company (Eason) special refund that it could issue a determination unavailability of personnel to complete proceeding. The DOE found that regarding the documents. the form, was greater than that Farmland is a regional cooperative Personnel Security Hearing encountered by other firms required to operating for the benefit of its complete Form EIA–782B. Accordingly, agricultural cooperative members and Albuquerque Operations Office, 8/23/ Lee was granted temporary relief from their common shareholder/patrons. 96, VSO–0084 its obligation to file Form EIA–782B. Farmland claimed a refund for volumes of Eason products that it resold to its A OHA Hearing Officer issued an Supplemental Order opinion regarding the continued member cooperatives. The DOE eligibility of an individual for access META, Inc., 8/22/96, VWZ-0006 determined that 96% of Eason products authorization under the provisions of 10 A Hearing Officer from the Office of that Farmland sold to its member C.F.R. Part 710. After considering the Hearings and Appeals denied a Motion cooperatives ultimately were sold to and record of the proceeding, the Hearing to Dismiss filed by Maria Elena Torano used by member farmers and ranchers. Officer found that: (i) the individual has Associates, Inc. (META). In its Motion, Accordingly, the DOE granted Farmland two related mental conditions— META sought the dismissal of a a refund of $791,853 based on the 96% exhibitionism and voyeurism—that, in complaint filed by C. Lawrence Cornett of its total purchases from Eason that the opinion of a board-certified under the DOE’s Contractor Employee were resold to cooperative farmers and psychiatrist, cause him to have a Protection Program, 10 C.F.R. Part 708. ranchers, and required Farmland to pass significant defect in his judgment and META alleged that it did not perform through this refund to its member reliability; (ii) the individual had a ten- work at DOE sites as defined by Section cooperatives on a dollar for dollar basis. year history of arrests for sex offenses; 708.4 and thus it was not subject to Part Refund Applications (iii) the individual failed to show that 708 jurisdiction. After conducting a he was rehabilitated to such an extent hearing on the Motion and considering The Office of Hearings and Appeals that he would be unlikely to engage in all of the evidence, the Hearing Officer issued the following Decisions and exhibitionism and voyeurism again; and determined that despite the relatively Orders concerning refund applications, (iv) in view of his mental condition and limited amount of time META which are not summarized. Copies of his lengthy history of arrests for sex employees spent on DOE sites, the the full texts of the Decisions and offenses, the individual presented an employees performed work activities on Orders are available in the Public unacceptably high risk of vulnerability the DOE sites which were directly Reference Room of the Office of of pressure, exploitation and coercion related the primary purposes of the Hearings and Appeals. ARMELLINI EXPRESS LINES, INC ...... RG272–00937 08/20/96 BURNHAM SERVICE COMPANY ...... RG272–00955 08/20/96 ELECTROLUX CORPORATION ...... RG272–00975 08/22/96 HUB TRANSPORTATION SERVICES CORP./HUB TRUCK RENTAL CORP ...... RG272–00953 08/20/96 KENTILE, INC ...... RK272–2203 08/19/96 MRS. G.E. KING, JR. ET AL ...... RK272–00361 08/21/96 PELHAM COUNTRY CLUB ET AL ...... RG272–00505 08/23/96 RAYBURN, INC. ET AL ...... RF272–97809 08/21/96 SAFETY BUS SERVICE ...... RG272–00867 08/20/96 SAMUEL CABOT, INC. ET AL ...... RF272–95105 08/21/96 SPECIALIZED TRUCKING SERVICE ...... RG272–00931 08/20/96 TRI-STATE FARMERS COOP ET AL ...... RF272–99000 08/23/96

Dismissals The following submissions were dismissed: Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices 55293

Name Case No.

BELLAIR INC ...... RF272±97986 FARMERS UNION OIL CO ...... RG272±0005 GEORGIA-PACIFIC CORPORATION ...... VFA±0198 GERALD KELLY ...... VWA±0011 K & H COOPERATIVE OIL COMPANY ...... RF272±89391 SWEETHEART CUP COMPANY, INC ...... RG272±980

[FR Doc. 96–27420 Filed 10–24–96; 8:45 am] Title: Automotive Service and Repair whether the information will have BILLING CODE 6450±01±P Environmental Compliance Checklist, A practical utility; Survey. (ii) Evaluate the accuracy of the Abstract: The Office of Compliance agency’s estimate of the burden of the within the Office of Enforcement and proposed collection of information, ENVIRONMENTAL PROTECTION Compliance Assurance has developed a including the validity of the AGENCY general multi-media checklist to quickly methodology and assumptions used; review the compliance of an automotive (iii) Enhance the quality, utility, and [FRL±5641±3] service and repair shop. The clarity of the information to be information on the two page checklist collected; and Agency Information Collection will be gathered by students from four Activities: Proposed Collection; community colleges in different parts of (iv) Minimize the burden of the Comment Request; Collection of the United States. The completed collection of information on those who Compliance Information From checklists will be forwarded to the are to respond, including through the Automotive Service and Repair Shops Coordinating Committee for Automotive use of appropriate automated electronic, Repair (CCAR) for tabulation. The mechanical, or other technological AGENCY: Environmental Protection collection techniques or other forms of Agency (EPA). information is being requested by the Agency to get a better handle on the information technology, e.g., permitting ACTION: Notice. overall compliance within the electronic submission of responses. automotive service and repair sector. SUMMARY: In compliance with the Burden Statement: The Agency Current efforts by the Agency to Paperwork Reduction Act (44 U.S.C. projects a burden to the shop owner or determine overall compliance with 3501 et seq.), this notice announces that operator as follows: Two and one-half applicable environmental regulations EPA is planning to submit the following have been difficult. Additionally, this hours for the survey. Thirty minutes for proposed and/or continuing Information survey will be repeated twenty four introduction and purpose of collection, Collection Request (ICR) to the Office of months after this initial collection to thirty minutes for gathering any Management and Budget (OMB): determine if compliance outreach paperwork, one hour to answer the Automotive Service and Repair programs developed by the Agency have questions on the checklist and thirty Environmental Compliance Checklist, had any impact on improving the minutes for review and discussion. The EPA ICR Number 1793.01. Before compliance rate within the industry. cost of completing this survey is submitting the ICR to OMB for review Information being requested by the estimated at $62.50 for the two and one- and approval, EPA is soliciting half hours hours. This is based upon a comments on specific aspects of the community college students will be voluntary. The information will be shop owner’s average salary of $25 per proposed information collection as hour. There is no additional burden described below. treated with confidentiality. The Agency will have no knowledge of which shops being place upon the shop owner for DATES: Comments must be submitted on were visited. recordkeeping or retention of or before December 24, 1996. This survey is being performed as part information since these requirements ADDRESSES: Interested persons may of a grant awarded by the Agency to the are already accounted for in other ICRs. obtain a copy of the draft compliance Coordinating Committee for Automotive The frequency of the survey will be two checklist without charge by contacting, Repair (CCAR). CCAR is an umbrella collections. The first survey is to be United States Environmental Protection organization representing 40 affiliates conducted approximately January/ Agency, Office of Compliance, Energy within the automotive service and February, 1997 and then a follow-up and Transportation Branch, Mail Code repair industry. survey in January/February, 1999. The 2223A, 401 M Street, SW, Washington, An agency may not conduct or number of respondents for this survey DC 20460. sponsor, and a person is not required to will be no more than 500 shop owners FOR FURTHER INFORMATION CONTACT: respond to, a collection of information or operators, nationwide. Burden means Everett Bishop, Phone: (202) 564–7032, unless it displays a currently valid OMB the total time, effort, or financial Facsimile (202) 564–0050 or e-mail: control number. The OMB control resources expended by persons to [email protected]. numbers for EPA’s regulations are listed generate, maintain, retain, or disclose or in 40 CFR Part 9 and 48 CFR Chapter provide information to or for a Federal SUPPLEMENTARY INFORMATION: 15. This information request approval is agency. This includes the time needed Affected entities: Entities potentially for one period of three years to review instructions; develop, acquire, affected by this action are those The EPA would like to solicit install, and utilize technology and automotive repair shops that routinely comments to: systems for the purposes of collecting, maintain automobiles. Such businesses (i) Evaluate whether the proposed validating, and verifying information, may include, new car dealerships, collection of information is necessary processing and maintaining franchise repair shops, independent for the proper performance of the information, and disclosing and owner/operators or gasoline stations. functions of the agency, including providing information; adjust the 55294 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices existing ways to comply with any EIS No. 960500, FINAL EIS, BOP, VA, Activities at (202) 564–7167. An previously applicable instructions and Lee County, Virginia Federal explanation of the ratings assigned to requirements; train personnel to be able Correctional Institution, Construction draft environmental impact statements to respond to a collection of and Operation, Site Selection near the (EISs) was published in FR dated April information; search data sources; Town of Pennington Gap, Lee County, 5, 1996 (61 FR 15251). complete and review the collection of VA, Due: November 25, 1996, Contact: Draft EISs information; and transmit or otherwise David J. Dorworth (202) 514–6470. disclose the information. EIS No. 960501, FINAL EIS, NPS, CA, ERP No. D–AFS–K65186–NV Rating EC2, Spring Mountains National Dated: October 15, 1996. Manzanar National Historic Site (NHS), General Management Plan, Recreation Area General Management John B. Rasnic, Implementation, Inyo County, CA, Plan, Toiyabe National Forest Land Director, Office of Manufacturing, Energy and Due: December 24, 1996, Contact: Dan and Resource Management Plan, Transportation. Olson (415) 744–3968. Amendment, Implementation, Clark [FR Doc. 96–27476 Filed 10–24–96; 8:45 am] EIS No. 960502, FINAL EIS, FHW, WI, and Nye Counties, NV. BILLING CODE 6560±50±P US–151 Transportation Improvement, Summary: EPA requested that these Belmont to Dodgeville Road, Funding issues be further addressed in the Final and COE Section 404 Permit, Iowa document. [ER±FRL±5474±2] and Lafayette Counties, WI, Due: ERP No. D–AFS–L65269–OR Rating EC2, Augusta Timber Sale, Environmental Impact Statements; November 25, 1996, Contact: Richard Implementation, Willamette National Notice of Availability C. Madrzak (608) 829–7510. EIS No. 960503, DRAFT EIS, FTA, TX, Forest, Blue River Ranger District, Responsible Agency: Office of Federal North Central Corridor Light Rail Willamette Meridian, Blue River, Activities, General Information (202) Transit (LRT) Extension, Lane County, OR. 564–7167 or (202) 564–7153. Weekly Transportation Improvements, Summary: EPA expressed receipt of Environmental Impact Funding, NPDES Permit and COE environmental concerns based on water Statements Filed October 14, 1996 Section 404 Permit, Dallas and Collin quality and air quality aspects of the Through October 18, 1996 Pursuant to Counties, TX, Due: December 09, project area. 40 CFR 1506.9. 1996, Contact: Jesse Balleza (214) ERP No. D–COE–E30037–FL Rating EC2, EIS No. 960495, DRAFT EIS, AFS, TN, 749–2543. Brevard County Shore Protection Upper Ocoee River Corridor Amended Notices Study, Implementation, Beach Recreational Development, Restoration Project, Brevard County, Implementation, Cherokee National EIS No. 960364, DRAFT EIS, AFS, MT, FL. Forest, Ocoee Ranger District, Polk Lewis and Clark National Forest Plan, Summary: EPA expressed County, TN, Due: December 09, 1996, Implementation, Oil and Gas Leasing environmental concerns regarding the Contact: Dave Carroll (423) 339–8620. Analysis, Upper Missouri River Basin, long-term consequences of inundating EIS No. 960496, DRAFT EIS, FHW, WA, several counties, MT, Due: December hard-bottom habitat as well as how this US 101 Highway Aberdeen-Hoquian 11, 1996, Contact: Robin Strathy (406) action meshes with other, similar Corridor Project, Improvements, US 791–7726. Published FR 08–09–96— anticipated beach nourishment projects. Coast Guard and COE Section 404 Review Period Extended. The additional information derived EIS No. 960403, DRAFT EIS, NPS, MA, Permit, Grays Harbor County, WA, from the mitigation and subsequent Cape Cod National Seashore General Due: December 30, 1996, Contact: monitoring plan will be necessary to Management Plan, Implementation, Gene Fong (360) 753–9413. determine how this project fits into the Barnstable County, MA, Due: EIS No. 960497, DRAFT EIS, CGD, IL, larger issue of the environmental November 30, 1996, Contact: Maria MI, OH, NY, IN, MN, WI, PA, Great consequences of proposed shoreline Burks (508) 349–3785. Published FR Lakes Icebreaking Operation, protection. 09–06–96—Review Period extended. Implementation, Ninth District, IL, IN, ERP No. D–COE–K81024–CA Rating MI, MN, OH, WI, NY and PA, Due: Dated: October 22, 1996. EC2, US Food and Drug December 09, 1996, Contact: Gary William D. Dickerson, Administration Laboratory, Land Nelson (216) 522–3934. Director, NEPA Compliance Division, Office Acquisition, Construction and EIS No. 960498, FINAL EIS, FHW, MA, of Federal Activities. Operation on the North Campus Area I–495 Interchange Project, [FR Doc. 96–27474 Filed 10–24–96; 8:45 am] at the University of California, Irvine, Construction between Route 9 and BILLING CODE 6560±50±P Orange County, CA. Route 20 Interchange to provide Summary: EPA expressed access to Crane Meadow Road, environmental concerns regarding Funding, Right-of-Way, NPDES and [ER±FRL±5474±3] energy efficency, water conservation COE Section 404 Permits, in the city Environmental Impact Statements and and pollution prevention. EPA also of Marlborough and the town of Regulations; Availability of EPA requested addition information Southborough, Middlesex and Comments regarding air quality and applicable Worcester Counties, MA, Due: federal hazardous waste requirements. November 25, 1996, Contact: Thomas Availability of EPA comments ERP No. D–FHW–L40199–WA Rating Hession (617) 973–7498. prepared October 7, 1996 through EC2, WA–509 Extension/South EIS No. 960499, FINAL EIS, AFS, WA, October 11, 1996 pursuant to the Access Road Corridor Project, North Sherman and Fritz Timber Environmental Review Process (ERP), Construction, Funding and Possible Sales, Implementation, Colville under Section 309 of the Clean Air Act COE Section 404 Permit, the Cities of National Forest, Kettle Falls Ranger and Section 102(2)(c) of the National SeaTac, Des Moines, Kent and Federal District, Ferry County, WA, Due: Environmental Policy Act as amended. Way, King County, WA. November 25, 1996, Contact: Requests for copies of EPA comments Summary: EPA expressed Meredith Webster (509) 738–6111. can be directed to the Office of Federal environmental concerns regarding air Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices 55295 quality, water quality, wetlands and No. 2354–018) Issuance of Agency, 1921 Jefferson Davis Hwy, noise issues. Relicensing, Savannah River Basin, Arlington, VA 22202, (703–305–5675). ERP No. D–NOA–G39030–TX Rating LO, Tallulah, Tugalo and Chattooga SUPPLEMENTARY INFORMATION: EPA Texas Combined Coastal Management Rivers, GA and SC. issued a notice published in the Federal Program, Implementation, Federal Summary: EPA’s review found that Register of September 2, 1992 (57 FR Approval, Gulf of Mexico, TX. most project impacts were adequately 40186; FRL–4081–5), which announced Summary: EPA had no objection to described. Additional information on that Buckman Laboratories, Inc., 1256 the selection of the preferred alternative sewage/water quality impacts associated N. McLean Blvd. Memphis, TN 38108, described in the draft EIS. with increased recreational activities had submitted an application to register ERP No. DS–VAD–G99005–OK Rating would have been desirable. the pesticide product Busan 1104 (EPA LO, Oklahoma City Area National ERP No. F–NPS–K60100–AZ File Symbol 1448–GLR) containing the Cemetery Construction and Programmatic EIS—Juan Bautista de active ingredient 1H-pyrazole-1- Operation, Updated Information on a Anza National Historic Trail methanol 3,5-dimethyl at 93 percent, an New Potential Site, Fort Sill, Comache Comprehensive Management Plan, active ingredient not included in any County, OK. Implementation, several counties, AZ previously registered product. Summary: EPA had no objection to and CA. The application was approved on the selection of the preferred alternative. Summary: Review of the Final EIS August 19, 1996, as Busan 1104, a Final EISs was not deemed necessary. No formal preservative in manufacturing emulsion paints, adhesives, latex emulsions, ERP No. F–AFS–G65060–TX Texas comment letter was sent to the preparing agency. polishes, waxes, papermaking National Forests and Grasslands chemicals, coatings, detergents, inks, ERP No. FS–SCS–G36081–TX Attoyac Revised Land and Resource textiles, and construction materials Bayou Watershed, Flood Prevention Management Plan, Implementation, (EPA Registration Number 1448–351). and Watershed Protection, New several counties, TX. A conditional registration may be Information concerning Installation of Summary: EPA had no objection to granted under section 3(c)(7)(C) of a Multiple-purpose Reservoir on the the selection of the preferred alternative FIFRA for a new active ingredient where Naconiche Creek Watershed for Flood described in the Final EIS. certain data are lacking because a period Prevention and Recreational Storage, ERP No. F–AFS–L60101–ID Secesh River reasonably sufficient for generation of Funding, Nacogdoches, Shelby, Rusk Subdivision Access Roads, the data has not elapsed since the and San Augustine Counties, TX. Implementation, Special-Use-Permit, Administrator first imposed the data Idaho County, ID. Summary: EPA had no objection to requirements, on condition that such Summary: Review of the Final EIS has the selection of the preferred alternative data are received by the end of the been completed and the project found to as described in the Final EIS. conditional registration period and do be satisfactory. Dated: October 22, 1996. not meet or exceed the risk criteria set ERP No. F–AFS–L65257–ID Beaver/ William D. Dickerson, forth in 40 CFR 154.7; that use of the Cedar Land Change Project, Director, NEPA Compliance Division, Office pesticide during the conditional Implementation, Clearwater National of Federal Activities. registration period will not cause Forest, North Fork and Palause Ranger [FR Doc. 96–27475 Filed 10–24–96; 8:45 am] unreasonable adverse effects on the Districts, Clearwater and Latah BILLING CODE 6560±50±P environment; and that use of the Counties, ID. pesticide is in the public interest. Summary: Review of the Final EIS The Agency has considered the was not deemed necessary. No formal [OPP±30342A; FRL±5394±5] available data on the risks associated comment letter was sent to the with the proposed use of 1H-pyrazole- preparing agency. Buckman Laboratories, Inc.; Approval 1-methanol 3,5-dimethyl, and information on social, economic, and ERP No. F–COE–E32076–NC Cape Fear- of a Pesticide Product Registration environmental benefits to be derived Northeast Cape Fear Rivers AGENCY: Environmental Protection from such use. Specifically, the Agency Comprehensive Study for Deepening Agency (EPA). has considered the nature of the of the Wilmington Harbor Ship ACTION: chemical and its pattern of use, Channel, Navigation Improvement, Notice. application methods and rates, and level New Hanover and Brunswick SUMMARY: This notice announces and extent of potential exposure. Based Counties, NC. Agency approval of an application on these reviews, the Agency was able Summary: EPA’s previous concerns submitted by Buckman Laboratories, to make basic health and safety have been lessened to an acceptable Inc., to conditionally register the determinations which show that use of level due to the mitigation measures, pesticide product Busan 1104 1H-pyrazole-1-methanol 3,5-dimethyl therefore EPA has no objection to the containing a new active ingredient not during the period of conditional action as proposed. included in any previously registered registration is not expected to cause any ERP No. F–FHW–K40213–NV Tier 1— product pursuant to the provisions of unreasonable adverse effect on the FEIS Northern and Western Las Vegas section 3(c)(7)(C) of the Federal environment, and that use of the Beltway Establishment, Need for and Insecticide, Fungicide, and Rodenticide pesticide is in the public interest. Location of a Transportation Corridor, Act (FIFRA), as amended. Consistent with section 3(c)(7)(C), the Clark County, NV. FOR FURTHER INFORMATION CONTACT: By Agency has determined that this Summary: Federal Highway mail: Marion Johnson, Product Manager conditional registration is in the public Administration’s addressed all of EPA’s (PM) 31, Registration Division (7505C), interest. Use of the pesticides are of previous concerns, therefore EPA has no Office of Pesticide Programs, 401 M St., significance to the user community, and objection to the project as proposed. SW., Washington, DC 20460. Office appropriate labeling, use directions, and ERP No. F–FRC–E05047–GA North location and telephone number: Rm. other measures have been taken to Georgia Hydroelectric Project, (FERC. 250, CM #2, Environmental Protection ensure that use of the pesticides will not 55296 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices result in unreasonable adverse effects to ingredient not included in any manufacturing use products. If the man and the environment. previously registered product pursuant conditions are not complied with the More detailed information on this to the provisions of section 3(c)(7)(C) of registrations will be subject to conditional registration is contained in the Federal Insecticide, Fungicide, and cancellation in accordance with FIFRA the EPA Pesticide Fact Sheet on 1H- Rodenticide Act (FIFRA), as amended. section 6(e). pyrazole-1-methanol 3,5-dimethyl. FOR FURTHER INFORMATION CONTACT: By Consistent with section 3(c)(7)(C), the A copy of the fact sheet, which mail: Marion Johnson, Product Manager Agency has determined that this provides a summary description of the (PM) 31, Registration Division (7505C), conditional registration is in the public chemical, use patterns and Office of Pesticide Programs, 401 M St., interest. Use of the pesticides are of formulations, science findings, and the SW., Washington, DC 20460. Office significance to the user community, and Agency’s regulatory position and location and telephone number: Rm. appropriate labeling, use directions, and rationale, may be obtained from the 250, CM #2, Environmental Protection other measures have been taken to National Technical Information Service Agency, 1921 Jefferson Davis Hwy, ensure that use of the pesticides will not (NTIS), 5285 Port Royal Road, Arlington, VA 22202, 703–305–5675; e- result in unreasonable adverse effects to Springfield, VA 22161. mail: [email protected]. man and the environment. In accordance with section 3(c)(2) of SUPPLEMENTARY INFORMATION: EPA FIFRA, a copy of the approved label and More detailed information on this issued a notice, published in the the list of data references used to conditional registration is contained in Federal Register of February 18, 1993 support registration are available for an EPA Pesticide Fact Sheet on 1,2- (58 FR 8945; FRL–4188–8), which public inspection in the office of the benzenedicarboxaldehyde. announced that Johnson and Johnson Product Manager. The data and other Medical Inc., P.O. Box 90130, Arlington, A copy of this fact sheet, which scientific information used to support TX 76004, had submitted an application provides a summary description of the registration, except for material to conditionally register the pesticide chemical, use patterns and specifically protected by section 10 of product Cidex O.P.A. Antimicrobial formulations, science findings, and the FIFRA, are available for public (EPA File Symbol 7078–RT), containing Agency’s regulatory position and inspection in the Public Response and the active ingredient 1,2- rationale, may be obtained from the Program Resources Branch, Field benzenedicarboxaldehyde at 99 percent, National Technical Information Service Operations Division (7506C), Office of an active ingredient not included in any (NTIS), 5285 Port Royal Road, Pesticide Programs, Environmental previously registered product. Springfield, VA 22161. Protection Agency, Rm. 1132, CM #2, The application was approved on May In accordance with section 3(c)(2) of Arlington, VA 22202 (703–305–5805). 10, 1996, for use in the formulation of FIFRA, a copy of the approved label and Requests for data must be made in sterilant and disinfectant products (EPA the list of data references used to accordance with the provisions of the Registration Number 7078–17). support registration are available for Freedom of Information Act and must A conditional registration may be public inspection in the office of the be addressed to the Freedom of granted under section 3(c)(7)(C) of Product Manager. The data and other Information Office (A–101), 401 M St., FIFRA for a new active ingredient where scientific information used to support SW., Washington, DC 20460. Such certain data are lacking, on condition registration, except for material requests should: (1) Identify the product that such data are received by the end specifically protected by section 10 of name and registration number and (2) of the conditional registration period FIFRA, are available for public specify the data or information desired. and do not meet or exceed the risk inspection in the Public Response and Authority: 7 U.S.C. 136. criteria set forth in 40 CFR 154.7; that Program Resources Branch, Field use of the pesticide during the Operations Division (7506C), Office of List of Subjects conditional registration period will not Pesticide Programs, Environmental Environmental protection, Pesticides cause unreasonable adverse effects; and Protection Agency, Rm. 1132, CM #2, and pests, Product registration. that use of the pesticide is in the public Arlington, VA 22202 (703–305–5805). Dated: October 1, 1996. interest. Requests for data must be made in The Agency has considered the accordance with the provisions of the Stephen L. Johnson, available data on the risks associated Freedom of Information Act and must Director, Registration Division, Office of with the proposed use of 1,2- be addressed to the Freedom of Pesticide Programs. benzenedicarboxaldehyde, and Information Office (A-101), 401 M St., [FR Doc. 96–27466 Filed 10–24–96; 8:45 am] information on social, economic, and SW., Washington, D.C. 20460. Such BILLING CODE 6560±50±F environmental benefits to be derived requests should: (1) Identify the product from such use. Specifically, the Agency name and registration number and (2) has considered the nature and its specify the data or information desired. [OPP±30348B; FRL±5377±8] pattern of use, application methods and Authority: 7 U.S.C. 136. rates, and level and extent of potential Johnson and Johnson Inc.; Approval exposure. Based on these reviews, the of a Pesticide Product Registration List of Subjects Agency was able to make basic health AGENCY: Environmental Protection and safety determinations which show Environmental protection, Pesticides Agency (EPA). that use of 1,2- and pests, Product registration. ACTION: Notice. benzenedicarboxaldehyde during the Dated: September 27, 1996. period of conditional registration will SUMMARY: This notice announces not cause any unreasonable adverse Peter Caulkins, Agency approval of an application effect on the environment, and that use Acting Director, Registration Division, Office submitted by Johnson and Johnson of the pesticide is, in the public interest. of Pesticide Programs. Medical Inc., to conditionally register This conditional registration requires the pesticide product Cidex O.P.A. an Avian Dietary Study and Hydrolysis [FR Doc. 96–27467 Filed 10–24–96; 8:45 am] Antimicrobial containing an active Study, especially for formulating and BILLING CODE 6560±50±F Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices 55297

[OPP±30420; FRL±5392±8] The Agency has considered the List of Subjects available data on the risks associated Zeneca Inc.; Approval of a Pesticide with the proposed use of 2-methyl-4,5- Environmental protection, Pesticides Product Registration trimethylene-4-isothiazolin-3-one, and and pests, Product registration. AGENCY: Environmental Protection information on social, economic, and Dated: September 27, 1996. environmental benefits to be derived Agency (EPA). Peter Caulkins, ACTION: Notice. from such use. Specifically, the Agency has considered the nature of its pattern Acting Director, Registration Division, Office SUMMARY: This notice announces of use, application methods and rates, of Pesticide Programs. Agency approval of an application to and level and extent of potential [FR Doc. 96–27465 Filed 10–24–96; 8:45 am] conditionally register the pesticide exposure. Based on these reviews, the product Promexal X50 Preservative Agency was able to make basic health BILLING CODE 6560±50±F containing a new active ingredient not and safety determinations which show included in any previously registered that use of 2-methyl-4,5-trimethylene-4- product pursuant to the provisions of isothiazolin-3-one during the period of [FRL±5641±1] section 3(c)(7)(C) of the Federal conditional registration will not cause Insecticide, Fungicide, and Rodenticide any unreasonable adverse effect on the State Revolving Fund Funding Act (FIFRA), as amended. environment, and that use of the Framework Policy and Guidance FOR FURTHER INFORMATION CONTACT: By pesticide is in the public interest. AGENCY: Environmental Protection mail: Marion Johnson, Product Manager Consistent with section 3(c)(7)(C), the Agency. (PM 31) Registration Division (7505C), Agency has determined that this Office of Pesticide Programs, conditional registration is in the public ACTION: Notice of availability. Environmental Protection Agency, 401 interest. Use of the pesticide is of M St., SW., Washington, DC 20460. significance to the user community, and SUMMARY: The Environmental Protection Office location and telephone number: appropriate labeling, use directions, and Agency is announcing the availability of Rm. 250, CM #2, 1921 Jefferson Davis other measures have been taken to the final State Revolving Fund (SRF) Highway, Arlington, VA 22202, (703)– ensure that use of the pesticide will not Funding Framework and Policy and 305–5675; e-mail: result in unreasonable adverse effects to Guidance document. In an innovative [email protected]. man and/or the environment. partnership approach, the Agency has SUPPLEMENTARY INFORMATION: EPA More detailed information on this engaged in a policy dialog with state received from Zeneca Inc., Biocides conditional registration is contained in representatives to clarify the use of SRF Division, 1800 Concord Pike, a Pesticide Fact Sheet on 2-methyl-4,5- funds for ‘‘non-traditional’’ projects Wilmington, DE 19897, an application trimethylene-4-isothiazolin-3-one. where the connection to water quality is to register the pesticide product A copy of the Fact Sheet, which less clear and, therefore, needs to be Promexal X50 Preservative (EPA File provides a summary description of the established. The resulting policy makes Symol 10182–GIL) containing the active chemical, use patterns and no regulatory changes and imposes ingredient 2-methyl-4,5-trimethylene-4- formulations, science findings, and minimal newrequirements on the states. isothiazolin-3-one at 5 percent a new rationale, may be obtained from the The Framework document establishes active ingredient not included in any National Technical Information Service voluntary guidelines for funding previously registered product. However, (NTIS), 5285 Port Royal Road, traditional SRF projects (where the since the notice of receipt did not Springfield, VA 22161. primary purpose is water quality) and publish in the Federal Register as In accordance with section 3(c)(2) of sets national policy for states wanting to required by FIFRA, as amended, make innovative uses of their SRFs to interested parties may submit written or FIFRA, a copy of the approved labels and the list of data references used to fund non-traditional projects. A state electronic comments within 30 days wanting to fund non-traditional projects after date of publication for this support registration are available for public inspection in the office of the must use an integrated priority setting product. system, such as the two described in the The application was approved as a Product Manager (PM). The data and other scientific information used to Framework, to establish for the public conditional registration on July 23, that these projects are a priority within 1996, for aqueous compositions such as; support registration, except for material specifically protected by section 10 of the context of the state’s water quality oil in water emulsions, latices, emulsion problems as a whole. This policy paints, water-based adhesives, casein FIFRA, are available for public inspection in the Public Response and becomes effective when a state prepares and rosin dispersions, aqeous slurries, its 1998 SRF Intended Use Plan. and tape joint compounds (EPA Program Resources Branch, Field Registration Number 10182–385). Operations Division (7506C), Office of FOR FURTHER INFORMATION CONTACT: A conditional registration may be Pesticide Programs, Environmental Members of the public can obtain a copy granted under section 3(c)(7)(C) of Protection Agency, Rm. 1132, CM #2, of the SRF Funding Framework by FIFRA for a new active ingredient where Arlington, VA 22202, (703)–305–5805. calling (202) 260–2268 and leaving a certain data are lacking, on the Requests for data must be made in name and address. The document may condition that such data are received by accordance with the provisions of the be accessed electronically through the the end of the conditional registration Freedom of Information Act and must Internet at http://www.epa.gov/ period and do not meet or exceed the be addressed to the Freedom of WhatsNew.html. Information Office (A101), 401 M St., risk criteria set forth in 40 CFR 154.7; Dated: October 18, 1996. that use of the pesticide during the SW, Washington, D.C. 20460. Such conditional registration period will not requests should: (1) identify the product Robert Perciasepe, cause unreasonable adverse effects; and, name and registration number, and (2) Assistant Administrator for Water. that use of the pesticide is in the public specify the data or information desired. [FR Doc. 96–27478 Filed 10–24–96; 8:45 am] interest. Authority: 7 U.S.C. 136. BILLING CODE 6560±50±P 55298 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices

[FRL±5638±7] Agency may take action at variance with this Appeals Board 1 by certified mail, return guidance. receipt requested, at the following Revised Guidance on Procedures for address: Clerk, Environmental Appeals I. Introduction Submitting CERCLA Section 106(b) Board (Mail Code 1103B), U.S. Reimbursement Petitions and on EPA This document sets forth guidance Environmental Protection Agency, 401 Review of Those Petitions regarding petitions for reimbursement M Street, SW, Washington, DC 20460. Alternatively, petitions and AGENCY: Environmental Protection submitted under section 106(b)(2) of the supporting materials may be hand- Agency (EPA). Comprehensive Environmental Response, Compensation, and Liability delivered to the Clerk of the ACTION: Issuance of revised guidance Act of 1980 (CERCLA), 42 U.S.C. Environmental Appeals Board between document. 9606(b)(2), as amended by the the hours of 8:00 a.m. and 4:30 p.m., Superfund Amendments and Monday through Friday (excluding SUMMARY: During June 1994, EPA’s federal holidays), at the following Reauthorization Act of 1986 (SARA). Environmental Appeals Board (Board) address: Suite 500, 607 Fourteenth This guidance describes the contents of issued guidance regarding the Street, NW, Washington, DC 20005. The reimbursement petitions and the procedures for submission and review petitioner should also send a copy of its procedures that EPA uses in responding of petitions for reimbursement under petition, including attachments, to the to reimbursement petitions. The full text section 106(b)(2) of the Comprehensive EPA Regional program office that issued of section 106(b)(2) is set forth as an Environmental Response, the underlying administrative order. Compensation, and Liability Act of 1980 appendix to this guidance. Section 106(b)(2) requires that a (CERCLA), 42 U.S.C. 9606(b)(2), as Section 106(b)(2) allows any person petition be submitted to EPA ‘‘within 60 amended by the Superfund who has complied with an days after completion of the required Amendments and Reauthorization Act administrative order issued under action.’’ For the purpose of determining of 1986 (SARA). Section 106(b)(2) section 106(a) of CERCLA to petition for a petitioner’s compliance with the allows any person who has complied reimbursement of the reasonable costs statutory 60-day deadline, EPA will look with an administrative order issued incurred in complying with the order, to the postmark date if the petition is under section 106(a) of CERCLA to plus interest. To establish a claim for sent to the Environmental Appeals petition for reimbursement of the reimbursement, a petitioner must Board by certified mail, or the date of reasonable costs incurred in complying demonstrate that it was not liable for receipt by the Environmental Appeals with the order, plus interest. To response costs under CERCLA section Board if the petition is sent by any other establish a claim for reimbursement, a 107(a), or that EPA’s selection of the means. In other words, petitions sent to petitioner must demonstrate that it was ordered response action was arbitrary the Board by certified mail must be not liable for response costs under and capricious or was otherwise not in postmarked not later than the 60th day CERCLA section 107(a), or that EPA’s accordance with law. after the date of completion of the selection of the ordered response action Section 106(b)(2) is organized in four required action. Petitions sent to the was arbitrary and capricious or was Board by any means other than certified otherwise not in accordance with law. parts, roughly as follows. Subparagraph 106(b)(2)(A) requires that a petition be mail must actually be received by the Based on its experience with such submitted to EPA ‘‘within 60 days after Environmental Appeals Board not later petitions since June 1994, the Board completion of the required action.’’ than the 60th day after the date of issued a revised version of its Subparagraphs 106(b)(2)(C) and completion of the required action. It is procedural guidance on October 9, 1996. 106(b)(2)(D) describe the substantive recommended that petitions be This notice sets forth the full text of the submitted to the Board only by certified Board’s revised guidance for the grounds for reimbursement. Subparagraph 106(b)(2)(B) authorizes a mail or by hand delivery; to minimize convenience of interested members of the risk of disputes over timeliness, petitioner to pursue its claim for the public. filing by regular first-class mail is reimbursement in the appropriate U.S. discouraged. If the 60-day time period FOR FURTHER INFORMATION CONTACT: For District Court if EPA denies the claim in for filing the petition with EPA expires further information or for copies of the whole or in part. revised guidance document, contact the on a Saturday, Sunday, or federal legal Environmental Appeals Board (Mail This guidance supersedes the holiday, the period will be extended to Code 1103B), 401 M Street, SW, Environmental Appeals Board’s June 9, include the next business day. Washington, DC 20460, (202) 501–7060. 1994 ‘‘Guidance on Procedures for Submitting CERCLA Section 106(b) III. Contents of the Petition Dated: October 10, 1996. Reimbursement Petitions and on EPA Edward E. Reich, A. Background Information Review of Those Petitions,’’ and is Environmental Appeals Judge. A petition must include the following effective immediately. The procedures background information: Revised Guidance on Procedures for described in this guidance will be • the petitioner’s full name, title, and Submitting CERCLA Section 106(b) applied to all petitions submitted on or address; Reimbursement Petitions and on EPA after the date of its issuance. The Board • the name, title, address, telephone Review of Those Petitions will also apply these procedures, to the number and fax number of any agent or extent the Board determines it to be Note: This document is intended solely as attorney authorized to represent the guidance. It does not establish a binding practicable, to petitions that were norm and is not finally determinative of the submitted before the date of issuance of 1 The President’s authority to implement CERCLA issues addressed. This document is not this guidance and that have not yet been section 106(b) was delegated to the EPA intended to be a synopsis of principles of decided by the Board. Administrator by Executive Order 12580 (January law. The policies and procedures in this 23, 1987). The authority to receive, evaluate, and II. Filing Procedures and Deadlines make determinations regarding petitions for guidance do not constitute a rulemaking by reimbursement submitted pursuant to section the Agency, and may not be relied on to Petitions for reimbursement should be 106(b) has been delegated to the Environmental create a substantive or procedural right or Appeals Board. See Delegation of Authority 14–27 benefit enforceable at law by any person. The submitted to EPA’s Environmental (‘‘Petitions for Reimbursement’’). Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices 55299 petitioner (or, if the petitioner is not procedures described in Section IV.A, petition, and no evidence or information represented, the petitioner’s own infra), the Board may undertake to may be submitted during the petition telephone number and fax number); resolve that dispute before proceeding review process that was not identified • the name and address of the facility to the merits of the petitioner’s claim. in the petition, unless the petitioner at which the response action was (3) Timeliness of the Petition: The demonstrates: (1) for new issues, that implemented; and petition must also indicate the date on such issues were not reasonably • the U.S. EPA docket number for the which the action required by the section ascertainable as of the date the petition section 106(a) order (a complete copy of 106(a) order was completed, so that the was filed; or (2) for new evidence or the order must also accompany the Board can determine whether the information, that the petitioner could petition as an attachment). petition is timely. Very important not reasonably have known of its The petition must be signed by the information regarding compliance with existence, or could not reasonably have petitioner or by an attorney representing the statutory 60-day filing deadline anticipated its relevance or materiality, the petitioner. If the petitioner is not a appears supra in Section II of this as of the date the petition was filed. natural person (e.g., if the petitioner is guidance, titled ‘‘Filing Procedures and The petition must explicitly state, as a corporation), the petition must be Deadlines.’’ to each claim set forth therein, whether signed by the petitioner’s attorney or by (4) Incurrence of Costs: The statute the claim arises under CERCLA an agent or officer of the petitioner who requires a demonstration that the costs § 106(b)(2)(C) or under CERCLA is qualified to act as a signatory; for for which reimbursement is sought are § 106(b)(2)(D).3 Both subparagraph purposes of this requirement, a ‘‘reasonable.’’ However, there is no need 106(b)(2)(C) and subparagraph ‘‘qualified’’ agent or officer means one for a petitioner to undertake a full-scale 106(b)(2)(D) expressly place the burden who satisfies the definition provided in demonstration of the ‘‘reasonableness’’ of proof on the petitioner. 40 C.F.R. § 270.11(a). The of the costs being claimed until and D. Required Attachments Environmental Appeals Board may at unless the Board concludes that any time require any factual assertion reimbursement in some amount is A complete copy of the administrative contained in a petition to be appropriate. Therefore, when initially order on which the petitioner’s claim is substantiated by an affidavit based on filing a petition, the only cost based must accompany the petition as the affiant’s personal knowledge of the information that the petitioner must an attachment. In addition, all other matter asserted. include is (1) a statement asserting that documents on which the petitioner relies in support of its claim must also B. Threshold Matters (Required the petitioner incurred costs in complying with EPA’s section 106(a) be submitted as attachments to the Assertions Re: Petitioner’s Eligibility To petition, except for documents to be File) order, and (2) an estimate of the total costs being claimed by the petitioner. relied on solely as evidence of the costs The Board’s first priority, in acting on Any dispute concerning the incurred or as evidence of their a petition for reimbursement, is to 4 reasonableness of the costs incurred will reasonableness. Each of the evaluate the petitioner’s eligibility to ordinarily be addressed only after the attachments must be separately have its claim addressed on the merits. Board decides that reimbursement of identified, and the relevance of each The petition must therefore present some amount should be awarded. The attachment to the petitioner’s claim information concerning the following Board, however, reserves the right to briefly explained, in the body of the threshold eligibility matters: petition. (1) Compliance With the Order: The request cost information at an earlier recipient of a section 106(a) date if it deems such information useful IV. Agency Procedures for Processing administrative order may seek in determining either threshold Section 106(b) Petitions reimbursement of its costs only if it eligibility issues or a petitioner’s The Environmental Appeals Board ‘‘complies’’ with the order. A petition entitlement to reimbursement on the will generally evaluate petitions for for reimbursement must therefore merits. reimbursement using the following include a statement indicating that the C. Statement of Grounds for procedures. The Board may, however, petitioner has complied with the order, Reimbursement exercise its discretion to stay further action on a petition at any time. The and evidence supporting that statement The petition must articulate all legal Board may, for example, defer must accompany the petition. If the EPA arguments and all factual contentions consideration of a petition while related Regional office that issued the order (including contentions, if any, regarding disputes the petitioner’s assertion settlement discussions or judicial technical or scientific matters) on which actions are proceeding, or for other good regarding compliance (under the the petitioner relies in support of its procedures described in Section IV.A, 2 cause. In addition, a petitioner may claim for reimbursement. Except as elect to withdraw its petition, or to infra), the Board may undertake to may be permitted by the Board for good resolve that dispute before proceeding withdraw its own claim (e.g., for cause shown, and except as specifically settlement purposes) from a petition to the merits of the petitioner’s claim. provided in Sections III.B(4) and IV.F of (2) Completion of the Required this guidance (describing procedures for Action: A petitioner may only present a 3 Any petitioner challenging EPA’s decision in identifying and submitting cost-related reimbursement claim for consideration selecting an ordered response action should also information), no issues may be raised by note that, in the event of a successful challenge, on the merits after completion of the a petitioner during the petition review section 106(b)(2)(D) calls for reimbursement of action required by the section 106(a) ‘‘reasonable response costs incurred by the process that were not identified in the administrative order. The petition must petitioner pursuant to the portions of the order found to be arbitrary and capricious or otherwise therefore include a statement indicating 2 A petitioner may seek leave of the not in accordance with law’’ (emphasis added). that the action has been completed, and Environmental Appeals Board to amend a petition Therefore, when making a claim under section evidence supporting that statement in order to present information, or to identify 106(b)(2)(D), the petitioner must be specific in must accompany the petition. If the EPA evidence, that was not available at the time of the identifying the portions of EPA’s order that it seeks initial filing. A petition must be promptly amended to challenge. Regional office that issued the order as appropriate to correct or clarify any statements 4 Copies of such cost-related documents need disputes the petitioner’s assertion therein that are no longer true, or that are only be submitted after the Board issues an Order regarding completion (under the determined not to have been true when made. Granting Reimbursement. See Section IV.F, infra. 55300 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices submitted jointly with other petitioners. addressing the merits of the petitioner’s hearing date and location. Both the Whenever a petitioner withdraws or claims. A response addressing the Region and the petitioner will be voluntarily dismisses a claim for merits would be due from the Region expected to participate in such reimbursement, the petitioner will be within sixty days after the date of the proceedings; a party’s failure to permitted to reinstate that claim only if Board’s letter soliciting a response to the participate may cause adverse the 60-day statutory deadline (measured petition. The Region’s submission of a inferences or conclusions to be drawn from the date of completion of the response addressing the merits of the against that party with respect to any required action) has not yet expired. petitioner’s claims (either on its own matter addressed at the proceedings. initiative or as directed by the Board) in D. Preliminary Decision A. Regional Office Response to the no way limits the Board’s authority to Petition reject the petition for failure to satisfy The Board’s proposed disposition of a Upon receiving a petition for the threshold eligibility requirements petition for reimbursement, whether on reimbursement, the Environmental described in Section III.B of this the merits or otherwise, will first be Appeals Board will send a letter to the guidance. issued to the parties in the form of a appropriate EPA Regional office (with a When the Region submits its first ‘‘Preliminary Decision’’ on which copy to the petitioner) soliciting a responsive pleading to the Board, comments will be solicited (see Section response to the petition. The Region addressing either the petitioner’s IV.E, infra). If any materials cited in the must respond in one of two ways: eligibility to seek reimbursement or the Preliminary Decision were not If the Region contends that one or merits of the petitioner’s claims, the furnished by the parties themselves and more of the threshold eligibility Region must also submit a certified are not generally available, such requirements discussed Section III.B of index to the administrative record that materials will either be sent by the this guidance have not been met—i.e., the Region compiled in connection with Board to all parties along with the that the petitioner has failed to comply the issuance of the underlying CERCLA Preliminary Decision or be made with EPA’s section 106(a) order, that the § 106(a) order. In addition, the Region available for inspection by the parties at required action has not been completed, must provide the Board with copies of the Regional office upon issuance of the that the petition was not timely filed, all documents that are relied on in the Preliminary Decision, as the Board and/or that the petitioner has not responsive pleading and that have not deems appropriate. In addition, if an incurred any costs in complying with a already been submitted by the evidentiary hearing was conducted in section 106(a) order—the Region must petitioner. connection with the evaluation of a petition, the Board will provide a copy raise those contentions by submitting a B. Additional Briefing limited responsive pleading in the of the hearing officer’s recommended nature of a motion to dismiss the The Board may at any time require or decision to the parties along with its petition. Such a pleading would address invite the petitioner and/or the Region own Preliminary Decision. only the petitioner’s alleged failure to to provide such supplemental briefing as the Board may deem necessary for an E. Comments on the Preliminary meet the threshold requirements Decision described in Section III.B, and would be informed resolution of the issues treated by the Board as a request to presented. Briefs other than those When the Board issues its Preliminary reject the petition without reaching the expressly required or invited by the Decision, it will also establish a merits of the petitioner’s claims. Board may be submitted only with leave schedule providing both parties with an Because a pleading of this nature would of the Board. opportunity to comment on the not include a response to the merits of C. Evidentiary Hearings and Oral decision. The Board expects that it will the petitioner’s claims, the Region Arguments generally invite such comments would be expected to file it according to the following sequence: In its sole discretion, the Board may If the Preliminary Decision proposes expeditiously, within thirty days after choose to designate a hearing officer the date of the Board’s letter soliciting to award reimbursement to the 5 (who shall be an EPA employee without petitioner, the Board will direct the a response to the petition. The prior involvement in the matter under petitioner would then be invited to Regional office to submit its comments review) to conduct an evidentiary first. The Board will specify a later date respond to the Region’s threshold proceeding with respect to any issue of objections. Once the threshold for submission of the petitioner’s fact that the Board may consider comments, which may include a eligibility issues are fully briefed, the material to the resolution of a Board will either rule on those issues response to the Region’s comments. reimbursement petition.6 Similarly in its If, however, the Preliminary Decision separately or defer ruling on them until sole discretion, the Board may direct the proposes to deny the petitioner’s claim the merits have also been briefed parties to appear before it to present oral in full, the Board will direct the (pursuant to a further order of the argument with respect to one or more petitioner to submit its comments first. Board). The Region would not, by specified issues of law. The Board may The Board will specify a later date for initially filing a responsive pleading in take either of those actions either in submission of the Region’s comments, the nature of a motion to dismiss, be response to a request by a party or on which may include a response to the deemed to have waived any of its its own initiative. petitioner’s comments. arguments with respect to the merits of If the Board determines that an The comment period following the petitioner’s claims. evidentiary hearing or oral argument issuance of the Board’s Preliminary If the Region does not contend that shall take place, both the petitioner and Decision represents the final one or more of the threshold eligibility the Region will be notified in writing of opportunity for each party to present its requirements discussed in Section III.B the issues to be addressed and the views in relation to the substance of the of this guidance have not been met, the petitioner’s claim for reimbursement Region must submit a response 6 If the Board designates a hearing officer to under section 106(b)(2). Comments conduct an evidentiary hearing, he or she will be 5 The Regional office may request a limited asked to issue a recommended decision to the should focus with particularity on the extension of time if necessary to verify whether a Board with respect to the issues addressed at the analysis in the Preliminary Decision petitioner has completed the response action. hearing. rather than merely repeating general Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices 55301 arguments previously made. To the the Board’s Order Granting of Board decisions to the appropriate extent that a party wishes only to Reimbursement. According to a briefing volume of the Environmental reaffirm its reliance on arguments schedule established by the Board, the Administrative Decisions, if the cited already made to the Board, such Regional office will then be afforded an decision appears therein. arguments need not be repeated at opportunity to challenge particular cost V. Further Information length. Instead, comments of that nature items (as unreasonable or otherwise not may be submitted in summary form recoverable), and the petitioner will be For further information concerning referencing the commenting party’s permitted to respond to those the matters addressed in this guidance, prior submissions. challenges.7 contact Stuart Cane, Environmental Before finalizing its determination to (2B) Final Order Granting Appeals Board (1103B), U.S. grant or deny reimbursement, the Board Reimbursement: After the cost issues Environmental Protection Agency, 401 will review and consider comments have been briefed, the Board will issue M Street, SW, Washington, DC 20460, relating to any issue previously a Final Order Granting Reimbursement. (202) 501–7060. identified by either party; but the Board A Final Order Granting Reimbursement will, except in extraordinary represents the Agency’s final decision Appendix circumstances, decline to consider any with respect to the petitioner’s claim. A CERCLA Section 106(b)(2) provides: new claims or new issues sought to be petitioner who wishes to file an action (A) Any person who receives and raised during the comment period. in Federal district court under CERCLA complies with the terms of any order Absent extraordinary circumstances, § 106(b)(2)(B) must do so within thirty issued under subsection (a) of this comments should therefore relate only days of receipt of a Final Order Granting section may, within 60 days after to the issues raised in the petition or in Reimbursement. To eliminate any completion of the required action, the Region’s response to the petition, or uncertainty as to the date of receipt, a petition the President for to any other matter discussed in the Final Order Granting Reimbursement reimbursement from the Fund for the Preliminary Decision. will be served on the petitioner by reasonable costs of such action, plus certified mail, return receipt requested. F. Further Proceedings interest. Any interest payable under this The Board’s final decisions under paragraph shall accrue on the amounts After reviewing comments (and CERCLA § 106(b)(2) are available on a expended from the date of expenditure responses to comments) submitted by current basis on LEXIS, WESTLAW, and at the same rate as specified for interest the parties, and making such changes as the World Wide Web (http:// on investments of the Hazardous it deems appropriate in light of those www.epa.gov/eab). The Board’s Substance Superfund established under submissions, the Board will issue either decisions are also published subchapter A of chapter 98 of Title 26. an Order Granting Reimbursement or a periodically in a series of bound (B) If the President refuses to grant all Final Order Denying Reimbursement. volumes titled Environmental or part of a petition made under this An Order Granting Reimbursement will Administrative Decisions, available for paragraph, the petitioner may within 30 be issued if the Board determines that purchase from the Superintendent of days of receipt of such refusal file an a petitioner is entitled to reimbursement Documents, U.S. Government Printing action against the President in the of all or any portion of the costs claimed Office (telephone: 202–512–1800).8 For appropriate United States district court in the petition. A Final Order Denying the convenience of litigants and the Reimbursement will be issued only if Board, the Board encourages the citation seeking reimbursement from the Fund. the Board determines that no portion of (C) Except as provided in the costs claimed by the petitioner will 7 Because the statute expressly limits subparagraph (D), to obtain be reimbursed. reimbursement from the Fund to ‘‘reasonable’’ costs reimbursement, the petitioner shall (1) Final Order Denying (plus interest), the Board may require a petitioner establish by a preponderance of the to submit not only evidence of the costs actually evidence that it is not liable for response Reimbursement: A Final Order Denying incurred—which evidence would include, at a Reimbursement represents the Agency’s minimum, itemized invoices and proof of their costs under section 9607(a) of this title final decision with respect to the payment in full—but also evidence demonstrating and that costs for which it seeks petitioner’s claim. A petitioner who that those costs are reasonable. Proof of reimbursement are reasonable in light of ‘‘reasonableness’’ of costs would become the action required by the relevant wishes to file an action in Federal particularly important if the Regional office, after district court under CERCLA section receiving the petitioner’s initial itemization of the order. 106(b)(2)(B) must do so within thirty costs being claimed, offers specific reasons for (D) A petitioner who is liable for days of receipt of a Final Order Denying concluding that certain cost items are not response costs under section 9607(a) of reasonable. Although the Board cannot anticipate Reimbursement. To eliminate any all possible permutations of these issues, factors this title may also recover its reasonable uncertainty as to the date of receipt, a relevant to the reasonableness of a petitioner’s costs costs of response to the extent that it can Final Order Denying Reimbursement might include: bidding procedures used for a demonstrate, on the administrative particular project and the number of bids received; record, that the President’s decision in will be served on the petitioner by reasons for selecting a contractor other than the certified mail, return receipt requested. lowest bidder; cost estimates provided by selecting the response action ordered (2A) Order Granting Reimbursement; prospective contractors and the circumstances was arbitrary and capricious or was Proof of Costs: An Order Granting surrounding any later deviations from those otherwise not in accordance with law. estimates; and the reasons for any unforeseen Reimbursement awarded under this Reimbursement, in contrast, does not expansion of a particular project or unforeseen constitute the Agency’s final decision delay in its completion, to the extent that such subparagraph shall include all with respect to the petitioner’s claim, expansion or delay resulted in additional costs. reasonable response costs incurred by because the amount of reimbursement to Petitioners should take care to retain documents the petitioner pursuant to the portions and other evidence bearing on such matters, and be awarded must still be determined. should be prepared to submit such evidence to the of the order found to be arbitrary and When issuing an Order Granting Board upon request. capricious or otherwise not in Reimbursement, therefore, the Board 8 When contacting GPO regarding Volumes 1 accordance with law. will also direct the petitioner to furnish through 4 of the Environmental Administrative (E) Reimbursement awarded by a Decisions, please refer to GPO Order No. 055–000– documentation of all costs that it seeks 00538–8. When inquiring as to Volume 5, please court under subparagraph (C) or (D) may to recover and that would be refer to GPO Order No. 055–000–00545–1. Volume include appropriate costs, fees, and recoverable according to the analysis in 6 will be published during 1997. other expenses in accordance with 55302 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices subsections (a) and (d) of section 2412 Response Costs’’ as defined in the OMB Number: N/A. of Title 28. Agreement. ‘‘Past Response Costs’’ are Expiration Date of OMB Clearance: N/A. [FR Doc. 96–27156 Filed 10–24–96; 8:25 am] defined as all costs, including, but not limited to, direct and indirect costs that OMB Reviewer: Alex Hunt, (202) 395– BILLING CODE 6560±50±P EPA has incurred and paid through the 7316, Office of Management and Budget, effective date of the Agreement, at or in OIRA, Paperwork Reduction Project, [FRL±5639±9] connection with the Site, plus accrued Washington, D.C. 20503. ‘‘Interest’’ on all such costs through the FDIC Contact: Steven F. Hanft, (202) Proposed Administrative Settlement; effective date of the Agreement. 898–3907, Office of the Executive Denver Radium Site (OU 6), 1271 West ‘‘Interest’’ is defined as interest at the Secretary, Room F–400, Federal Deposit Bayaud, Denver, CO rate specified for interest on Insurance Corporation, 550 17th Street investments of the Hazardous Substance N.W., Washington, D.C. 20429. AGENCY: Environmental Protection Superfund, compounded on an annual Comments: Comments on this Agency (EPA). basis. collection of information are welcome ACTION: Proposed administrative The settlement amount to be paid by and should be submitted on or before settlement. the PRPs represents 99.6% of the total November 25, 1996. ADDRESSES: A copy of the submission SUMMARY: In accordance with the costs expended by EPA in connection with response activities at the Site. may be obtained by calling or writing requirements of section 122(i)(1) of the the FDIC contact listed above. Comprehensive Environmental EPA will receive, for a period of thirty (30) days from the date of this SUPPLEMENTARY INFORMATION: This Response, Compensation, and Liability collection of information facilitates the Act, as amended (CERCLA), notice is publication, comments relating to the proposed administrative settlement. planning and controlling of the FDIC’s hereby given of a proposed outside counsel costs through the use of administrative settlement under section A copy of the proposed Administrative Settlement Agreement budgeting and invoicing methods 122(h) concerning the portion of designed to take into account the Operable Unit (OU) 6 of the Denver may be obtained in person or by mail from Jessie Goldfarb (8ENF–L), complexity, size, and anticipated Radium Site located at 1271 West duration of legal actions. Bayaud, in Denver, Colorado (Site). The Enforcement Attorney, U.S. proposed administrative settlement Environmental Protection Agency, Dated: October 21, 1996. Federal Deposit Insurance Corporation. requires two potentially responsible Region VIII, 999 18th Street, Suite 500, parties (PRPs) to together pay Denver, Colorado, 80202–2466. Robert E. Feldman, $177,112.71 to resolve their civil Additional background information Deputy Executive Secretary. liability to the United States under relating to the proposed administrative [FR Doc. 96–27407 Filed 10–24–96; 8:45 am] section 107(e) of CERCLA for settlement is available for review at that BILLING CODE 6714±01±M reimbursement of Past Response Costs address. relating to the Site. Dated: October 15, 1996. DATES: Comments must be submitted on Jack W. McGraw, FEDERAL EMERGENCY or before November 25, 1996. Acting Regional Administrator. MANAGEMENT AGENCY ADDRESSES: Comments should be [FR Doc. 96–27310 Filed 10–24–96; 8:45 am] [FEMA±1139±DR] addressed to Rebecca Thomas (8EPR– BILLING CODE 6560±50±M SR), Remedial Project Manager, U.S. Maryland; Amendment to Notice of a Environmental Protection Agency, Major Disaster Declaration Region VIII, 999 18th Street, Suite 500, FEDERAL DEPOSIT INSURANCE AGENCY: Federal Emergency Denver, Colorado 80202–2466, and CORPORATION Management Agency (FEMA). should refer to: In the Matter of: Denver ACTION: Notice. Radium Site (OU 6), Docket No. Agency Information Collection CERCLA VIII–96–12. Activities: Submission for OMB SUMMARY: This notice amends the notice FOR FURTHER INFORMATION CONTACT: Review; Comment Request of a major disaster for the State of Maryland, (FEMA–1139–DR), dated Jessie Goldfarb (8ENF–L), Enforcement AGENCY: Federal Deposit Insurance September 17, 1996, and related Attorney, U.S. Environmental Protection Corporation. Agency, Region VIII, 999 18th Street, determinations. ACTION: Notice of information collection Suite 500, Denver, Colorado, 80202– EFFECTIVE DATE: October 7, 1996. to be submitted to OMB for review and 2466, (303) 312–6926. FOR FURTHER INFORMATION CONTACT: approval under the Paperwork SUPPLEMENTARY INFORMATION: Notice of Reduction Act of 1995. Pauline C. Campbell, Response and section 122(h) Cost Recovery Recovery Directorate, Federal Settlement: In accordance with section SUMMARY: In accordance with Emergency Management Agency, 122(i)(1) of CERCLA, notice is hereby requirements of the Paperwork Washington, DC 20472, (202) 646–3606. given that the terms of an Reduction Act of 1995 (44 U.S.C. SUPPLEMENTARY INFORMATION: The notice Administrative Settlement Agreement Chapter 35), the FDIC hereby gives of a major disaster for the State of have been agreed to by AlliedSignal, notice that it plans to submit to the Maryland, is hereby amended to include Inc., (AlliedSignal) and General Office of Management and Budget a the following areas among those areas Chemical Corporation (General request for OMB review of the determined to have been adversely Chemical). By the terms of the proposed information collection system described affected by the catastrophe declared a administrative settlement, the PRPs will below. major disaster by the President in his together pay $177,112.71 to EPA to Type of Review: New collection. declaration of September 17, 1996: resolve any and all civil liability to the Title: Outside Counsel Budget and Allegany County for Public Assistance United States under section 107(a) of Invoicing Forms. (already designated for Individual Assistance CERCLA for reimbursement of ‘‘Past Form Number: None. and Hazard Mitigation). Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices 55303

Garrett County for Public Assistance and SUPPLEMENTARY INFORMATION: Notice is showing cargo moved on the vessel Hazard Mitigation. hereby given that the incident period for Cape May, when in fact the cargo moved (Catalog of Federal Domestic Assistance No. this disaster is closed effective October on the California Pegasus, failing to 83.516, Disaster Assistance.) 15, 1996. provide various services and other Lacy E. Suiter, (Catalog of Federal Domestic Assistance No. practices. Executive Associate Director, Response and 83.516, Disaster Assistance.) This proceeding has been assigned to Recovery Directorate. Lacy E. Suiter, the office of Administrative Law Judges. [FR Doc. 96–27426 Filed 10–24–96; 8:45 am] Executive Associate Director, Response and Hearing in this matter, if any is held, BILLING CODE 6718±02±P Recovery Directorate. shall commence within the time [FR Doc. 96–27428 Filed 10–24–96; 8:45 am] limitations prescribed in 46 CFR 502.61, and only after consideration has been [FEMA±1140±DR] BILLING CODE 6718±02±P given by the parties and the presiding South Carolina; Amendment to Notice officer to the use of alternative forms of of a Major Disaster Declaration [FEMA±1135±DR] dispute resolution. The hearing shall include oral testimony and cross- AGENCY: Federal Emergency Virginia; Amendment to Notice of a examination in the discretion of the Management Agency (FEMA). Major Disaster Declaration presiding officer only upon proper ACTION: Notice. AGENCY: Federal Emergency showing that there are genuine issues of material fact that cannot be resolved on SUMMARY: Management Agency (FEMA). This notice amends the notice the basis of sworn statements, affidavits, ACTION: Notice. of a major disaster for the State of South depositions, or other documents or that Carolina, (FEMA–1140–DR), dated SUMMARY: This notice amends the notice the nature of the matter in issue is such September 30, 1996, and related that an oral hearing and cross- determinations. of a major disaster for the Commonwealth of Virginia (FEMA– examination are necessary for the EFFECTIVE DATE: October 16, 1996. 1135–DR), dated September 6, 1996, and development of an adequate record. FOR FURTHER INFORMATION CONTACT: related determinations. Pursuant to the further terms of 46 CFR Pauline C. Campbell, Response and EFFECTIVE DATE: September 23, 1996. 502.61, the initial decision of the Recovery Directorate, Federal presiding officer in this proceeding shall FOR FURTHER INFORMATION CONTACT: Emergency Management Agency, be issued by October 22, 1997, and the Pauline C. Campbell, Response and Washington, DC 20472, (202) 646–3606. final decision of the Commission shall Recovery Directorate, Federal SUPPLEMENTARY INFORMATION: The notice be issued by February 19, 1998. Emergency Management Agency, of a major disaster for the State of South Washington, DC 20472, (202) 646–3606. Joseph C. Polking, Carolina, is hereby amended to include Secretary. SUPPLEMENTARY INFORMATION: Notice is the following area among those areas [FR Doc. 96–27488 Filed 10–24–96; 8:45 am] determined to have been adversely hereby given that the incident period for BILLING CODE 6730±01±M affected by the catastrophe declared a this disaster is closed effective major disaster by the President in his September 23, 1996. declaration of September 30, 1996: (Catalog of Federal Domestic Assistance No. 83.516, Disaster Assistance) FEDERAL RESERVE SYSTEM Georgetown County for Public Assistance Lacy E. Suiter, and Hazard Mitigation. Change in Bank Control Notices; (Catalog of Federal Domestic Assistance No. Executive Associate Director, Response and Recovery Directorate. Acquisitions of Shares of Banks or 83.516, Disaster Assistance.) Bank Holding Companies Lacy E. Suiter, [FR Doc. 96–27425 Filed 10–24–96; 8:45 am] Associate Director, Response and Recovery BILLING CODE 6718±02±P The notificants listed below have Directorate. applied under the Change in Bank [FR Doc. 96–27427 Filed 10–24–96; 8:45 am] Control Act (12 U.S.C. 1817(j)) and § BILLING CODE 6718±02±P FEDERAL MARITIME COMMISSION 225.41 of the Board’s Regulation Y (12 [Docket No. 96±18] CFR 225.41) to acquire a bank or bank holding company. The factors that are [FEMA±1140±DR] Notice of Filing of Complaint and considered in acting on the notices are South Carolina; Amendment to Notice Assignment set forth in paragraph 7 of the Act (12 of a Major Disaster Declaration U.S.C. 1817(j)(7)). In the matter of Red Hot Transport v. The notices are available for AGENCY: Federal Emergency Navajo Shipping Agency, Incorporated; immediate inspection at the Federal Management Agency (FEMA). Africa Mideast Line. Reserve Bank indicated. Once the ACTION: Notice. Notice is given that a complaint filed notices have been accepted for by Red Hot Transport (‘‘Complainant’’) processing, they will also be available SUMMARY: This notice amends the notice against Navajo Shipping Agency, for inspection at the offices of the Board of a major disaster for the State of South Incorporated and Africa Mideast Line of Governors. Interested persons may Carolina (FEMA–1140–DR), dated (‘‘Respondents’’) was served October 22, express their views in writing to the September 30, 1996, and related 1996. Complainant alleges that Reserve Bank indicated for that notice determinations. Respondents have violated section or to the offices of the Board of EFFECTIVE DATE: October 16, 1996. 10(d)(1) of the Shipping Act of 1984, 46 Governors. Comments must be received FOR FURTHER INFORMATION CONTACT: U.S.C. app. 1709(d)(1), by not later than November 8, 1996. Pauline C. Campbell, Response and misrepresenting its service and A. Federal Reserve Bank of Chicago Recovery Directorate, Federal providing an inferior service to that (James A. Bluemle, Vice President) 230 Emergency Management Agency, booked and paid for, falsifying South LaSalle Street, Chicago, Illinois Washington, DC 20472, (202) 646–3606. documents by issuing Bills of Lading 60690: 55304 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices

1. John D. Hunter and William C. how the party commenting would be 2. Proposal regarding a maintenance contract Brown, both of Des Moines, Iowa; to aggrieved by approval of the proposal. within the Federal Reserve System. acquire an additional 50.54 percent, for Unless otherwise noted, nonbanking 3. Personnel actions (appointments, a total of 92.56 percent, of the voting activities will be conducted throughout promotions, assignments, reassignments, shares of Whitmore Company, Inc., and salary actions) involving individual the United States. Federal Reserve System employees. Corning, Iowa, and thereby indirectly Unless otherwise noted, comments 4. Any items carried forward from a acquire Okey-Vernon First National regarding each of these applications previously announced meeting. Bank, Corning, Iowa, Page County State must be received at the Reserve Bank CONTACT PERSON FOR MORE INFORMATION: Bank, Clarinda, Iowa, and First Federal indicated or the offices of the Board of Mr. Joseph R. Coyne, Assistant to the Savings Bank of Creston, Creston, Iowa. Governors not later than November 18, Board; (202) 452–3204. You may call 1996. Board of Governors of the Federal Reserve (202) 452–3207, beginning at A. Federal Reserve Bank of System, October 21, 1996. approximately 5 p.m. two business days Richmond (Lloyd W. Bostian, Jr., Senior Jennifer J. Johnson before this meeting, for a recorded Vice President) 701 East Byrd Street, Deputy Secretary of the Board announcement of bank and bank Richmond, Virginia 23261: [FR Doc. 96–27400 Filed 10-24-96; 8:45 am] holding company applications 1. City Holding Company, Charleston, BILLING CODE 6210-01-F scheduled for the meeting. West Virginia; to acquire 100 percent of the voting shares of The Old National Dated: October 23, 1996. Formations of, Acquisitions by, and Bank of Huntington, Huntington, West Jennifer J. Johnson, Mergers of Bank Holding Companies Virginia. Comments regarding this Deputy Secretary of the Board. application must be received by [FR Doc. 96–27555 Filed 10–23–96; 10:36 The companies listed in this notice November 8, 1996. am] have applied to the Board for approval, B. Federal Reserve Bank of Atlanta BILLING CODE 6210±01±P pursuant to the Bank Holding Company (Zane R. Kelley, Vice President) 104 Act of 1956 (12 U.S.C. 1841 et seq.) Marietta Street, N.W., Atlanta, Georgia (BHC Act), Regulation Y (12 CFR Part 30303: Sunshine Meeting Notice 225), and all other applicable statutes 1. Arrowhead Capital Corporation, AGENCY HOLDING THE MEETING: Board of and regulations to become a bank West Palm Beach, Florida; to become a holding company and/or to acquire the Governors of the Federal Reserve bank holding company by acquiring 52 System. assets or the ownership of, control of, or percent of the voting shares of the power to vote shares of a bank or TIME AND DATE: 10:00 a.m., Wednesday, Sunniland Bank, Fort Lauderdale, bank holding company and all of the October 30, 1996. Florida. banks and nonbanking companies PLACE: C. Federal Reserve Bank of Chicago Marriner S. Eccles Federal owned by the bank holding company, (James A. Bluemle, Vice President) 230 Reserve Board Building, C Street including the companies listed below. entrance between 20th and 21st Streets, The applications listed below, as well South LaSalle Street, Chicago, Illinois 60690: N.W., Washington, D.C. 20551. as other related filings required by the STATUS: Open. Board, are available for immediate 1. FBOP Corporation, Oak Park, inspection at the Federal Reserve Bank Illinois; to acquire 100 percent of the MATTERS TO BE CONSIDERED: indicated. Once the application has voting shares of SDNB Financial Corp., San Diego, California, and thereby Summary Agenda: Because of their routine been accepted for processing, it will also nature, no discussion of the following items be available for inspection at the offices indirectly acquire San Diego National is anticipated. These matters will be voted on of the Board of Governors. Interested Bank, San Diego, California. without discussion unless a member of the persons may express their views in Board of Governors of the Federal Reserve Board requests that the items be moved to the writing on the standards enumerated in System, October 21, 1996. discussion agenda. the BHC Act (12 U.S.C. 1842(c)). If the Jennifer J. Johnson 1. Proposals to (1) rescind Regulation R proposal also involves the acquisition of Deputy Secretary of the Board (Relationships with Dealers in Securities Under Section 32 of the Banking Act of a nonbanking company, the review also [FR Doc. 96–27401 Filed 10-24-96; 8:45 am] includes whether the acquisition of the 1933) and (2) remove a Board BILLING CODE 6210-01-F interpretation regarding the application of nonbanking company complies with the section 32 prohibitions to bank holding standards in section 4 of the BHC Act, companies (proposed earlier for public including whether the acquisition of the Sunshine Meeting Notice comment; Docket No. R–0931). nonbanking company can ‘‘reasonably 2. Proposed 1997 Private Sector Adjustment be expected to produce benefits to the AGENCY HOLDING THE MEETING: Board of Factor. public, such as greater convenience, Governors of the Federal Reserve 3. Proposals to (1) announce the effective increased competition, or gains in System. date of the expanded operating hours for efficiency, that outweigh possible TIME AND DATE: Approximately 11:00 the Fedwire funds transfer service and (2) adverse effects, such as undue a.m., Wednesday, October 30, 1996, modify the daylight overdraft posting rules concentration of resources, decreased or following a recess at the conclusion of to clarify the posting times for certain transactions (proposed earlier for public unfair competition, conflicts of the open meeting. comment; Docket No. R–0778). interests, or unsound banking practices’’ PLACE: Marriner S. Eccles Federal (12 U.S.C. 1843). Any request for a Discussion Agenda: Reserve Board Building, C Street 4. Proposal to eliminate three of the hearing must be accompanied by a entrance between 20th and 21st Streets, statement of the reasons a written prudential limitations (firewalls) imposed N.W., Washington, D.C. 20551. on the operations of section 20 subsidiaries presentation would not suffice in lieu of STATUS: Closed. of bank holding companies (proposed a hearing, identifying specifically any earlier for public comment; Docket No. R– MATTERS TO BE CONSIDERED: questions of fact that are in dispute, 0701). summarizing the evidence that would 1. Proposals regarding software contracts 5. Proposed 1997 fee schedules for priced be presented at a hearing, and indicating within the Federal Reserve System. services. Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices 55305

6. Any items carried forward from a Administration for Children and and information necessary, from each previously announced meeting. Families appropriate Federal agency, to Note: This meeting will be recorded for the determine state funding allotments. benefit of those unable to attend. Cassettes Notice of Proposed Change in Data There is no similar statutory will be available for listening in the Board’s Source Used To Determine Tribal Child requirement for determining tribal Freedom of Information Office, and copies Counts; Request for Comments on allotments. may be ordered for $5 per cassette by calling Proposed Approach and Process The Final Rule implementing the (202) 452–3684 or by writing to: Freedom of CCDBG program stated that the BIA AGENCY: Administration on Children Information Office, Board of Governors of the Indian Service Population and Labor Youth and Families, ACF, DHHS. Federal Reserve System, Washington, D.C. Force Estimates Report, published 20551. ACTION: Notice of proposed change in biennially, was determined to be the data source used to determine tribal most suitable, available data source for CONTACT PERSON FOR MORE INFORMATION: child counts; request for comments on CCDBG purposes. However, problems Mr. Joseph R. Coyne, Assistant to the proposed approach and process. have developed in its use. Due to Board; (202) 452–3204. cutbacks in BIA personnel, this Report SUMMARY: This Notice announces the Dated: October 23, 1996. has not been published on schedule. Proposed Self-Certification Process for The fiscal year (FY) 1996 CCDBG tribal Jennifer J. Johnson, Tribal Child Counts Used to Calculate allotments will be based on 1993 data Deputy Secretary of the Board. Tribal Allotments Under the Child Care since the scheduled 1995 Report has not [FR Doc. 96–27556 Filed 10–23–96; 10:36 and Development Block Grant. The yet been published. am] purpose of utilizing a self-certification In addition, the BIA Report is limited BILLING CODE 6210±01±P process for tribal grantees is to assist the because it does not include Alaska- Agency in fulfilling its Congressional specific data. Consequently, ACF uses mandate to serve low-income children Census data to determine CCDBG under the Child Care and Development allotments for Alaskan grantees. Thus, DEPARTMENT OF HEALTH AND Block Grant (CCDBG). To ensure for purposes of CCDBG allocations, HUMAN SERVICES accuracy in determining tribal child count data are currently collected allotments under the CCDBG, ACF is from two separate data sources which Office of the Secretary proposing a new strategy of self- do not match in the timing of available reporting, instead of continuing its data or types of information collected. Notice of Interest Rate on Overdue current practice of using data reported In order to continue to provide for the Debts in the Bureau of Indian Affairs (BIA) best available data source to determine ‘‘Indian Service Population and Labor the number of children eligible to Section 30.13 of the Department of Force Estimates Report.’’ receive CCDBG funds in each tribe or Health and Human Services’ claims DATES: The Department invites tribal consortia, ACF has again reviewed collection regulations (45 CFR Part 30) comments on this proposed data potential data sources. provides that the Secretary shall charge collection method, particularly on After a thorough review of the an annual rate of interest as fixed by the whether a self-certification process will available data options, ACF has Secretary of the Treasury after taking result in accurate and timely determined that it would be in the best into consideration private consumer information reflecting current child interest of the tribes, as well as ACF, to rates of interest prevailing on the date count data. Written comments must be utilize a self-certification process since that HHS becomes entitled to recovery. submitted on or before November 25, it would afford tribes the opportunity to The rate generally cannot be lower than 1996. select a data source, or utilize a method the Department of Treasury’s current ADDRESSES: Direct all written comments for counting tribal children, which most value of funds rate or the applicable rate to: Administration on Children and accurately reflects its child population. determined from the ‘‘Schedule of Families, Child Care Bureau, Room 320– Further, through a tribal self- Certified Interest Rates with Range of F, 200 Independence Avenue, certification process, the child count Maturities.’’ This rate may be revised S.W.,Washington, D.C. 20201. data will be available with minimal lag time and will more accurately reflect the quarterly by the Secretary of the FOR FURTHER INFORMATION CONTACT: natural fluctuations in child population. Treasury and shall be published Ginny Gorman, Administration on Children and Families, Child Care With current sources, it can take 2 to 3 quarterly by the Department of Health years for changes in population (such as and Human Services in the Federal Bureau, Room 320–F, 200 Independence Avenue, S.W.,Washington, D.C. 20201. reaching a child population of 50) to be Register. reflected in the data source. The Secretary of the Treasury has SUPPLEMENTARY INFORMATION: This approach supports the 3 certified a rate of 13 ⁄8% for the quarter Introduction and Purpose President’s April 29, 1994, mandate to ended September 30, 1996. This interest Federal agencies which reaffirms the rate will remain in effect until such time The Child Care and Development government-to-government relationship as the Secretary of the Treasury notifies Block Grant (CCDBG) provides funding and directs agencies to design solutions HHS of any change. to States, Territories and Federally- and tailor Federal programs, in recognized Tribes to provide services to appropriate circumstances, to address Dated: October 18, 1996. children from low-income families who specific or unique needs of tribal George Strader, need child care either because a parent communities. Deputy Assistant Secretary, Finance. is working or attending a training or Proposed Process for Self-Certification [FR Doc. 96–27367 Filed 10–24–96; 8:45 am] educational program or because the family is receiving or needs to receive ACF intends to include a new section BILLING CODE 4150±04±M protective services. in the FY 1997 Program Instruction for The CCDBG statute requires the tribal CCDBG applicants which Secretary to obtain the most recent data describes the process for tribes to follow 55306 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices in submitting their self-certified child summarizes the procedures for the writing, on issues pending before the counts. Each tribal grantee and each meetings and methods by which committee. Those desiring to make tribe participating in a consortium will interested persons may participate in formal presentations should notify the be required to submit a declaration open public hearings before FDA’s contact person before November 1, signed by the governing body of the advisory committees. 1996, and submit a brief statement of tribe or an individual authorized to act FDA has established an Advisory the general nature of the evidence or for the applicant tribe or organization. Committee Information Hotline (the arguments they wish to present, the The declaration must certify the number hotline) using a voice-mail telephone names and addresses of proposed of Indian children, as defined in section system. The hotline provides the public participants, and an indication of the 3.7(#10) of the CCDBG plan preprint, in with access to the most current approximate time required to make their the tribe’s most recent count, under age information on FDA advisory committee comments. 16, who reside on or near the meetings. The advisory committee Closed presentation of data. On reservation or other tribal service area. hotline, which will disseminate current November 7, 1996, the committee will The declaration must be submitted as information and information updates, hear trade secret and/or confidential part of the grantee’s application. Each can be accessed by dialing 1–800–741– commercial information relevant to tribe, participating in a consortium, 8138 or 301–443–0572. Each advisory pending investigational new drug must submit such a declaration to the committee is assigned a 5-digit number. applications (IND’s) and/or new drug consortium, who in turn must submit all This 5-digit number will appear in each applications (NDA’s). This portion of such declarations as an attachment to individual notice of meeting. The the meeting will be closed to permit the consortium’s application. hotline will enable the public to obtain discussion of this information (5 U.S.C. Tribes are not obligated to conduct a information about a particular advisory 552b(c)(4)). special count to obtain this number for committee by using the committee’s 5- Closed committee deliberations. On FY 1997 funding. Tribes may submit digit number. Information in the hotline November 7, 1996, the committee will their most recent child count of such is preliminary and may change before a review trade secret and/or confidential children. A tribe may choose to conduct meeting is actually held. The hotline commercial information relevant to a special count; however, it must be will be updated when such changes are pending IND’s and/or NDA’s. This completed by July 1 of the funding year, made. portion of the meeting will be closed to and the child count submitted with the MEETINGS: The following advisory permit discussion of this information (5 CCDBG application on July 1. committee meetings are announced: U.S.C. 552b(c)(4)). It must be noted that CCDBG continues to serve children under age Dermatologic and Ophthalmic Drugs Open committee discussion. On 13. However, for the FY 1997 allocation Advisory Committee November 7, 1996, the committee will of funds, ACF intends to allow children hear presentations and discuss the Date, time, and place. November 7 under age 16 to be counted in order to potential for neurotoxicity of and 8, 1996, 8:30 a.m., Quality Suites, give flexibility in the type of data thalidomide raised by the Main Ballroom, Three Research Ct., sources tribes may utilize (e.g., the most investigational use and possible Rockville, MD. eventual approval of thalidomide for recent BIA Report). This will allow Type of meeting and contact person. tribes who do not choose to conduct a dermatologic and other indications. On Closed presentation of data, November November 8, 1996, the committee will separate count to use existing data 7, 1996, 8:30 a.m. to 11 a.m.; closed sources. If an application is submitted hear presentations and discuss the committee deliberations, 11 a.m. to 1 teratogenicity of thalidomide and issues without a child count declaration, ACF p.m.; open committee discussion, 1 p.m. will calculate the grantee’s FY 1997 of pregnancy prevention raised by the to 5 p.m.; open public hearing, investigational use and possible grant award using the same number of November 8, 1996, 8:30 a.m. to 11:30 children used to determine the FY 1996 eventual approval of thalidomide for a.m., unless public participation does dermatologic and other indications. grant award. Beginning in FY 1998, not last that long; open committee Tribal child counts declarations will FDA regrets that it was unable to discussion, 11:30 a.m. to 5 p.m.; Tracy publish this notice 15 days prior to the include children under age 13, in K. Riley or Danyiel A. D’Antonio, Center conformance with the CCDBG statute. Dermatologic and Ophthalmic Drugs for Drug Evaluation and Research (HFD– Advisory Committee meeting. Because Dated: October 22, 1996. 21), Food and Drug Administration, the agency believes there is some James A. Harrell, 5600 Fishers Lane, Rockville, MD urgency to bring these issues to public Deputy Commissioner, Administration on 20857, 301–443–5455, or FDA Advisory discussion and qualified members of the Children, Youth and Families. Committee Information Hotline, 1–800– Dermatologic and Ophthalmic Drugs [FR Doc. 96–27462 Filed 10–24–96; 8:45 am] 741–8138 (301–443–0572 in the Advisory Committee were available at BILLING CODE 4184±01±P Washington, DC area), Dermatologic and this time, the Commissioner of Food Ophthalmic Drugs Advisory Committee, and Drugs (the Commissioner) code 12534. Please call the hotline for concluded that it was in the public Food and Drug Administration information concerning any possible interest to hold this meeting even if changes. Advisory Committees; Notice of there was not sufficient time for the General function of the committee. customary 15-day public notice. Meetings The committee reviews and evaluates AGENCY: Food and Drug Administration, available data concerning the safety and Allergenic Products Advisory HHS. effectiveness of marketed and Committee ACTION: Notice. investigational human drug products for use in the treatment of dermatologic and Date, time, and place. November 15, SUMMARY: This notice announces ophthalmic disorders. 1996, 2 p.m., Food and Drug forthcoming meetings of public advisory Agenda—Open public hearing. Administration, Bldg. 29, conference committees of the Food and Drug Interested persons may present data, room 121, 8800 Rockville Pike, Administration (FDA). This notice also information, or views, orally or in Bethesda, MD. Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices 55307

Type of meeting and contact person. Anti-Infective Drugs Advisory long unless public participation does This meeting will be held by a Committee not last that long. It is emphasized, telephone conference call. A speaker however, that the 1 hour time limit for Date, time, and place. November 20, telephone will be provided in the an open public hearing represents a 1996, 8 a.m., Holiday Inn— conference room to allow public minimum rather than a maximum time Gaithersburg, The Ballroom, Two for public participation, and an open participation in the meeting. Open Montgomery Village Ave., Gaithersburg, public hearing, 2 p.m. to 3 p.m., unless public hearing may last for whatever MD. longer period the committee public participation does not last that Type of meeting and contact person. long; open committee discussion, 3 p.m. chairperson determines will facilitate Open public hearing, 8 a.m. to 9 a.m., the committee’s work. to 3:30 p.m.; closed committee unless public participation does not last Public hearings are subject to FDA’s deliberations, 3:30 p.m. to 5:30 p.m.; that long; closed committee guideline (subpart C of 21 CFR part 10) William Freas or Sheila D. Langford, deliberations, 9 a.m. to 12 m.; Ermona concerning the policy and procedures Center for Biologics Evaluation and B. McGoodwin or Danyiel A. D’Antonio, for electronic media coverage of FDA’s Research (HFM–21), Food and Drug Center for Drug Evaluation and Research public administrative proceedings, Administration, 1401 Rockville Pike, (HFD–21), Food and Drug including hearings before public Bethesda, MD 20852, 301–827–0314, or Administration, 5600 Fishers Lane, advisory committees under 21 CFR part FDA Advisory Committee Information Rockville, MD 20857, 301–443–5455, or 14. Under 21 CFR 10.205, Hotline, 1–800–741–8138 (301–443– FDA Advisory Committee Information representatives of the electronic media 0572 in the Washington, DC area), Hotline, 1–800–741–8138 (301–443– may be permitted, subject to certain Allergenic Products Advisory 0572 in the Washington, DC area), Anti- limitations, to videotape, film, or Committee, code 12388. Please call the Infective Drugs Advisory Committee, otherwise record FDA’s public hotline for information concerning any code 12530. Please call the hotline for administrative proceedings, including possible changes. information concerning any possible presentations by participants. changes. Meetings of advisory committees shall General function of the committee. General function of the committee. be conducted, insofar as is practical, in The committee reviews and evaluates The committee reviews and evaluates accordance with the agenda published data on the safety and effectiveness of available data concerning the safety and in this Federal Register notice. Changes allergenic biological products intended effectiveness of marketed and in the agenda will be announced at the for use in the diagnosis, prevention, or investigational human drug products for beginning of the open portion of a treatment of human diseases. use in the treatment of infectious meeting. Agenda—Open public hearing. diseases and disorders. Any interested person who wishes to Interested persons may present data, Agenda—Open public hearing. be assured of the right to make an oral information, or views, orally or in Interested persons may present data, presentation at the open public hearing writing, on issues pending before the information, or views, orally or in portion of a meeting shall inform the committee. Those desiring to make writing, on issues pending before the contact person listed above, either orally formal presentations should notify the committee. Those desiring to make or in writing, prior to the meeting. Any contact person before November 12, formal presentations should notify the person attending the hearing who does 1996, and submit a brief statement of contact person before November 15, not in advance of the meeting request an the general nature of the evidence or 1996, and submit a brief statement of opportunity to speak will be allowed to make an oral presentation at the arguments they wish to present, the the general nature of the evidence or arguments they wish to present, the hearing’s conclusion, if time permits, at names and addresses of proposed names and addresses of proposed the chairperson’s discretion. participants, and the indication of the participants, and an indication of the The agenda, the questions to be approximate time to make their approximate time required to make their addressed by the committee, and a comments. comments. current list of committee members will Open committee discussion. The Closed committee deliberations. The be available at the meeting location on committee will discuss the intramural committee will hear trade secret and/or the day of the meeting. research program for the Laboratory of confidential commercial information Transcripts of the open portion of the Immunoregulation in the Division of relevant to pending IND’s and NDA’s. meeting may be requested in writing Allergenic Products. This portion of the meeting will be from the Freedom of Information Office (HFI–35), Food and Drug Closed committee deliberations. The closed to permit discussion of this Administration, 5600 Fishers Lane, rm. committee will discuss trade secret and/ information (5 U.S.C. 552b(c)(4)). Each public advisory committee 12A–16, Rockville, MD 20857, or confidential commercial information meeting listed above may have as many approximately 15 working days after the relevant to pending IND’s in the Center as four separable portions: (1) An open meeting, at a cost of 10 cents per page. for Biologics Evaluation and Research. public hearing, (2) an open committee The transcript may be viewed at the This portion of the meeting will be discussion, (3) a closed presentation of Dockets Management Branch (HFA– closed to permit discussion of this data, and (4) a closed committee 305), Food and Drug Administration, information (5 U.S.C. 552b(c)(4)). The deliberation. Every advisory committee 12420 Parklawn Dr., rm. 1–23, committee will also discuss the meeting shall have an open public Rockville, MD 20857, approximately 15 intramural scientific program. This hearing portion. Whether or not it also working days after the meeting, between portion of the meeting will be closed to includes any of the other three portions the hours of 9 a.m. and 4 p.m., Monday prevent disclosure of personal will depend upon the specific meeting through Friday. Summary minutes of information concerning individuals involved. The dates and times reserved the open portion of the meeting may be associated with the research program, for the separate portions of each requested in writing from the Freedom disclosure of which would constitute a committee meeting are listed above. of Information Office (address above) clearly unwarranted invasion of The open public hearing portion of beginning approximately 90 days after personal privacy (5 U.S.C. 552b(c)(6)). the meeting(s) shall be at least 1 hour the meeting. 55308 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices

The Commissioner has determined for This notice is issued under section Fishers Lane, Rockville, MD 20857, the reasons stated that those portions of 10(a)(1) and (a)(2) of the Federal 301–827–3340, or FDA Advisory the advisory committee meetings so Advisory Committee Act (5 U.S.C. app. Committee Information Hotline, 1–800– designated in this notice shall be closed. 2), and FDA’s regulations (21 CFR part 741–8138 (301–443–0572 in the The Federal Advisory Committee Act 14) on advisory committees. Washington, DC area), Science Board to (FACA) (5 U.S.C. app. 2, 10(d)), permits Dated: October 21, 1996. the Food and Drug Administration, code 12603. Please call the hotline for such closed advisory committee Michael A. Friedman, meetings in certain circumstances. information concerning any possible Deputy Commissioner for Operations. Those portions of a meeting designated changes. as closed, however, shall be closed for [FR Doc. 96–27489 Filed 10–24–96; 8:45 am] General function of the board. The the shortest possible time, consistent BILLING CODE 4160±01±F board shall provide advice primarily to with the intent of the cited statutes. the agency’s Senior Science Advisor and, as needed, to the Commissioner The FACA, as amended, provides that Advisory Committee; Notice of Meeting a portion of a meeting may be closed and other appropriate officials on where the matter for discussion involves AGENCY: Food and Drug Administration, specific complex and technical issues as a trade secret; commercial or financial HHS. well as emerging issues within the scientific community in industry and information that is privileged or ACTION: Notice. confidential; information of a personal academia. Additionally, the board will nature, disclosure of which would be a SUMMARY: This notice announces a provide advice to the agency on keeping clearly unwarranted invasion of forthcoming meeting of a public pace with technical and scientific personal privacy; investigatory files advisory committee of the Food and evolutions in the fields of regulatory compiled for law enforcement purposes; Drug Administration (FDA). This notice science; on formulating an appropriate information the premature disclosure of also summarizes the procedures for the research agenda; and on upgrading its which would be likely to significantly meeting and methods by which scientific and research facilities to keep frustrate implementation of a proposed interested persons may participate in pace with these changes. It will also agency action; and information in open public hearings before FDA’s provide the means for critical review of certain other instances not generally advisory committees. agency-sponsored intramural and relevant to FDA matters. FDA has established an Advisory extramural scientific research programs. Committee Information Hotline (the Agenda—Open public hearing. Examples of portions of FDA advisory Interested persons may present data, committee meetings that ordinarily may hotline) using a voice-mail telephone system. The hotline provides the public information, or views, orally or in be closed, where necessary and in writing, on issues pending before the accordance with FACA criteria, include with access to the most current information on FDA advisory committee board. Those desiring to make formal the review, discussion, and evaluation presentations must notify the contact meetings. The advisory committee of drafts of regulations or guidelines or person before October 31, 1996, and hotline, which will disseminate current similar preexisting internal agency submit a brief statement of the general information and information updates, documents, but only if their premature nature of the evidence or arguments can be accessed by dialing 1–800–741– disclosure is likely to significantly they wish to present, and the names and 8138 or 301–443–0572. Each advisory frustrate implementation of proposed addresses of proposed participants. committee is assigned a 5-digit number. agency action; review of trade secrets Each presenter will be limited in time This 5-digit number will appear in each and confidential commercial or and not all requests to speak may be individual notice of meeting. The financial information submitted to the able to be accommodated. All written hotline will enable the public to obtain agency; consideration of matters statements submitted in a timely fashion information about a particular advisory involving investigatory files compiled will be provided to the board. for law enforcement purposes; and committee by using the committee’s 5- Open board discussion. The board review of matters, such as personnel digit number. Information in the hotline will receive an update on the FDA records or individual patient records, is preliminary and may change before a Information Retrieval System developed where disclosure would constitute a meeting is actually held. The hotline within FDA’s Office of Science, and an clearly unwarranted invasion of will be updated when such changes are update on the creation of a Biomaterials personal privacy. made. Forum designed to foster information Examples of portions of FDA advisory MEETING: The following advisory exchange on issues related to safety committee meetings that ordinarily shall committee meeting is announced: testing of biomaterials and new not be closed include the review, Science Board to the Food and Drug developments in biomaterials science. discussion, and evaluation of general Administration Additionally, the board will discuss the preclinical and clinical test protocols formation of a subcommittee on and procedures for a class of drugs or Date, time, and place. November 7, toxicology, which will address issues devices; consideration of labeling 1996, 8:30 a.m., Sheraton National related to the research and development requirements for a class of marketed Hotel, North Ballrooms 1 and 2, 900 of toxicological methods and drugs or devices; review of data and South Orme St. (Columbia Pike and mechanisms that better predict adverse information on specific investigational Washington Blvd.), Arlington, VA. health effects. A complete agenda will or marketed drugs and devices that have Type of meeting and contact person. be available in advance of the meeting. previously been made public; Closed board deliberations, 8:30 a.m. to Closed board deliberations. The board presentation of any other data or 11 a.m.; open board discussion, 11 a.m. will discuss information concerning information that is not exempt from to 3 p.m.; open public hearing, 3 p.m. nominations for the FDA award for public disclosure pursuant to the FACA, to 4 p.m., unless public participation scientific achievement; if these as amended; and, deliberation to does not last that long; open board nominations are discussed in public, formulate advice and recommendations discussion, 4 p.m. to 4:30 p.m.; Susan information of a personal nature would to the agency on matters that do not K. Meadows, Office of Science (HF–33), be disclosed which would constitute a independently justify closing. Food and Drug Administration, 5600 clearly unwarranted invasion of Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices 55309 personal privacy (5 U.S.C. 552b(c)(6)). otherwise record FDA’s public compiled for law enforcement purposes; The board will also hear an interim administrative proceedings, including information the premature disclosure of status report from its subcommittee on presentations by participants. which would be likely to significantly FDA research. FDA believes that Meetings of advisory committees shall frustrate implementation of a proposed premature disclosure of the be conducted, insofar as is practical, in agency action; and information in subcommittee’s work is likely to accordance with the agenda published certain other instances not generally significantly impede discussion of the in this Federal Register notice. Changes relevant to FDA matters. issues being reviewed by the in the agenda will be announced at the Examples of portions of FDA advisory subcommittee and potential agency beginning of the open portion of a committee meetings that ordinarily may action on future recommendations (5 meeting. be closed, where necessary and in U.S.C. 552b(c)(9)(B)). Thus, the interim Any interested person who wishes to accordance with FACA criteria, include status report from the subcommittee be assured of the right to make an oral the review, discussion, and evaluation will be presented in a closed session. presentation at the open public hearing of drafts of regulations or guidelines or However, the issues related to FDA portion of a meeting shall inform the similar preexisting internal agency science and research being reviewed by contact person listed above, either orally documents, but only if their premature the subcommittee will be presented to or in writing, prior to the meeting. Any disclosure is likely to significantly the board for public discussion at a later person attending the hearing who does frustrate implementation of proposed date. not in advance of the meeting request an agency action; review of trade secrets FDA regrets that it was unable to opportunity to speak will be allowed to and confidential commercial or publish this notice 15 days prior to the make an oral presentation at the financial information submitted to the Science Board to the Food and Drug hearing’s conclusion, if time permits, at agency; consideration of matters Administration meeting. Because the the chairperson’s discretion. involving investigatory files compiled agency believes there is some urgency to The agenda, the questions to be for law enforcement purposes; and bring these issues to public discussion addressed by the committee, and a review of matters, such as personnel and qualified members of the Science current list of committee members will records or individual patient records, Board to the Food and Drug be available at the meeting location on where disclosure would constitute a Administration were available at this the day of the meeting. clearly unwarranted invasion of time, the Commissioner concluded that Transcripts of the open portion of the personal privacy. it was in the public interest to hold this meeting may be requested in writing Examples of portions of FDA advisory meeting even if there was not sufficient from the Freedom of Information Office committee meetings that ordinarily shall time for the customary 15-day public (HFI–35), Food and Drug not be closed include the review, notice. Administration, 5600 Fishers Lane, rm. discussion, and evaluation of general Each public advisory committee 12A–16, Rockville, MD 20857, preclinical and clinical test protocols meeting listed above may have as many approximately 15 working days after the and procedures for a class of drugs or as four separable portions: (1) An open meeting, at a cost of 10 cents per page. devices; consideration of labeling public hearing, (2) an open committee The transcript may be viewed at the requirements for a class of marketed discussion, (3) a closed presentation of Dockets Management Branch (HFA– drugs or devices; review of data and data, and (4) a closed committee 305), Food and Drug Administration, information on specific investigational deliberation. Every advisory committee 12420 Parklawn Dr., rm. 1–23, or marketed drugs and devices that have meeting shall have an open public Rockville, MD 20857, approximately 15 previously been made public; hearing portion. Whether or not it also working days after the meeting, between presentation of any other data or includes any of the other three portions the hours of 9 a.m. and 4 p.m., Monday information that is not exempt from will depend upon the specific meeting through Friday. Summary minutes of public disclosure pursuant to the FACA, involved. The dates and times reserved the open portion of the meeting may be as amended; and, deliberation to for the separate portions of each requested in writing from the Freedom formulate advice and recommendations committee meeting are listed above. of Information Office (address above) to the agency on matters that do not The open public hearing portion of beginning approximately 90 days after independently justify closing. the meeting(s) shall be at least 1 hour the meeting. This notice is issued under section long unless public participation does The Commissioner has determined for 10(a)(1) and (a)(2) of the Federal not last that long. It is emphasized, the reasons stated that those portions of Advisory Committee Act (5 U.S.C. app. however, that the 1 hour time limit for the advisory committee meetings so 2), and FDA’s regulations (21 CFR part an open public hearing represents a designated in this notice shall be closed. 14) on advisory committees. minimum rather than a maximum time The Federal Advisory Committee Act Dated: October 21, 1996. for public participation, and an open (FACA) (5 U.S.C. app. 2, 10(d)), permits Michael A. Friedman, public hearing may last for whatever such closed advisory committee longer period the committee meetings in certain circumstances. Deputy Commissioner for Operations. chairperson determines will facilitate Those portions of a meeting designated [FR Doc. 96–27490 Filed 10–24–96; 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 Indian Health Service for electronic media coverage of FDA’s a portion of a meeting may be closed [0917±ZAll] public administrative proceedings, where the matter for discussion involves including hearings before public a trade secret; commercial or financial Notice of Redesignation of Contract advisory committees under 21 CFR part information that is privileged or Health Service Delivery Area; 14. Under 21 CFR 10.205, confidential; information of a personal Jamestown S'Klallam Tribe representatives of the electronic media nature, disclosure of which would be a AGENCY: Indian Health Service, HHS. may be permitted, subject to certain clearly unwarranted invasion of ACTION: Final notice. limitations, to videotape, film, or personal privacy; investigatory files 55310 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices

SUMMARY: This notice advises the public otherwise designated, a CHSDA shall they do not reside within the Tribe’s that the Indian Health Service (IHS) is consist of a county which includes all existing CHSDA. In addition, the Tribe redesignating the geographic boundaries or part of a reservation and any county has developed a land consolidation of the Contract Health Service Delivery or counties which have a common plan, which has been approved by the Area (CHSDA) for the Jamestown boundary with the reservation (42 CFR Department of the Interior, through the S’Klallam Tribe (‘‘The Tribe’’). The 36.22(a)(6) (1986)). The regulations also Bureau of Indian Affairs, and which Jamestown S’Klallam CHSDA has been provide that after consultation with the includes tribal trust land in Jefferson comprised of Clallam County in the tribal governing body or bodies of those County. However, the Jefferson County State of Washington. This county was reservations included in the CHSDA, tribal trust land has not yet been added designated as the Tribe’s CHSDA in the the Secretary may, from time to time, to the reservation by proclamation of the Federal Register of January 10, 1984 (49 redesignate areas within the United Secretary of the Interior, but that action FR 1291). Jefferson County, Washington, States for inclusion in or exclusion from is reportedly pending. is being added to the existing CHSDA. a CHSDA. The regulations require that In applying the aforementioned This notice is issued under authority of certain criteria must be considered CHSDA redesignation criteria required 43 FR 34654, August 4, 1978. before any redesignation is made. The by operative regulations (43 FR 35654), EFFECTIVE DATE: October 25, 1996. criteria are as follows: the following findings are made: (1) The number of Indians residing in (1) There are 112 Indians residing in FOR FURTHER INFORMATION CONTACT: Jefferson County, of which 59 are Leslie M. Morris, Acting Director, the area proposed to be so included or members of the Tribe or have close Division of Legislation and Regulations, excluded; (2) Whether the tribal governing body socioeconomic ties to the Tribe. Of these Office of Planning, Evaluation and has determined that Indians residing in 59, 20 are already receiving services due Legislation, Indian Health Service, Suite the area near the reservation are socially to a previous administrative decision. 450, 12300 Twinbrook Parkway, and economically affiliated with the The remaining 53 individuals are not Rockville, MD 20852, telephone 301/ tribe; covered by this request as they do not 443–1116. (This is not a toll-free (3) The geographic proximity to the have close social and economic ties to number.) reservation of the area whose inclusion the Tribe and are, therefore, not eligible SUPPLEMENTARY INFORMATION: The or exclusion is being considered; and for contract health services under Secretary of the Interior acknowledged (4) The level of funding which would existing law. the Tribe as an Indian tribe, effective be available for the provision of contract (2) The Tribe has determined that February 10, 1981 (45 FR 81890). The health services. contract health services would be Tribe has entered into a self-governance Additionally, the regulations require available to all of its members and to all compact with the IHS under Title III of that any redesignation of a CHSDA must federally recognized Indians in Jefferson the Indian Self-Determination Act (Pub. be made in accordance with the County having social and economic L. 93–638, as amended) to provide procedures of the Administrative affiliation with the Tribe. direct services at a clinic facility and Procedure Act (5 U.S.C. 553). In (3) Although the Tribe’s reservation is also to provide, for eligible Indians, compliance with this requirement, we in Clallam County, the Tribe has trust services purchased from private sector published the proposal to redesignate land in Jefferson County that is included health care providers. Such purchased the Tribe’s CHSDA in the Federal in an approved land consolidation plan services are called ‘‘contract health Register of August 3, 1995, requesting and is pending proclamation to add it to services.’’ public comment (60 FR 39761). One the Tribe’s reservation. This tribal trust On August 4, 1978, the IHS published comment was received. A tribal land is contiguous to the existing regulations establishing eligibility government official commented that the reservation and extends into Jefferson criteria for receipt of contract health Jefferson County trust land should not County. services and for the designation of be designated as eligible for contract (4) It is estimated that the current CHSDAs (43 FR 34654, codified at 42 health services if the residents of that eligible contract health service CFR 36.22, last published in the 1986 county are located in an urban setting. population will be increased by 39 version of the Code of Federal However, the map of Jefferson County, individuals, changing the active patient Regulations). On September 16, 1987, Washington, shows that it is a rural population from 192 to 231, assuming the IHS published new regulations county with no urban areas. 100 percent utilization for Jefferson governing eligibility for IHS services. Consequently, redesignation of the County eligibles. Based upon data from Congress has repeatedly delayed Tribe’s CHSDA to include Jefferson the fiscal year 1994 application of the implementation of the new regulations County does not conflict with the health services priority system and the by imposing annual moratoriums. comment. modified resource requirements Section 719(a) of the Indian Health Care Since approximately 1984, the Tribe methodology, the total clinical work Amendments of 1988, Pub. L. 100–713, has been providing contract health units (CWUs) generated by the user explicitly provides that during the services to 20 of its tribal members population of 192 was 998.4, or 5.2 per period of the moratorium placed on residing in Jefferson County, individual. Assuming the same implementation of the new eligibility Washington. Under existing regulations, utilization, the 39 new users will regulations, the IHS will provide the CHSDA for the Tribes consists of generate an additional 202.8 CWUs. The services pursuant to the criteria in effect only Clallam County. On December 21, calculated cost per CWU in the on September 15, 1987. Thus, the IHS 1992, the Tribe most recently requested inpatient and ambulatory care category, contract health services program the Secretary to redesignate its CHSDA which includes contract health care continues to be governed by the as Clallam County and Jefferson County costs, was $139.22 for the Tribe. regulations contained in the 1986 in the State of Washington. The Tribe Therefore, potential added costs for edition of the Code of Federal based its request on the fact that contract health services resulting from Regulations in effect on September 15, S’Klallam tribal members are new users is approximated at 1987. See 42 CFR 36.21 et seq. (1986). indigenous to Jefferson County, $139.22×202.8 CWUs=$28,233.82. Total As applicable to the Tribe, these Washington, yet are still ineligible to resources available to the program in regulations provide that, unless receive contract health services because fiscal year 1994 were $139.000. The Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices 55311 addition of new usage would not be identifying unutilized, underutilized, Bureau of Indian Affairs expected to result in an increase in excess and surplus Federal buildings funding for the Tribe. The impact on and real property that HUD has Notice of Availability of a existing contract health services will not reviewed for suitability for use to assist Supplemental Final Environmental be substantial. The current level of the homeless. Today’s Notice is for the Impact Statement for the Proposed funding will allow sufficient flexibility purpose of announcing that no Swinomish Marina, LaConner, to assure that there will be no additional properties have been Washington significant reduction in the level of determined suitable or unsuitable this AGENCY: Bureau of Indian Affairs, contract health services to current week. Interior. CHSDA residents, so the designation of the two-county CHSDA is within Dated: October 18, 1996. ACTION: Notice. Jacquie M. Lawing, available resources. SUMMARY: The Supplemental Final Accordingly, after considering the Deputy Assistant Secretary for Economic Environmental Impact Statement Tribe’s request in light of the criteria Development. (SFEIS) for the proposed Swinomish specified in the regulations, the IHS is [FR Doc. 96–27180 Filed 10–24–96; 8:45 am] Marina at LaConner, Washington, is redesignating the CHSDA of the Tribe to BILLING CODE 4210±29±M now available for public review. consist of Clallam and Jefferson Counties of the State of Washington. DATES: A Record of Decision will be This notice does not contain reporting issued after November 24, 1996. Public comments will be accepted by the U.S. or recordkeeping requirements subject DEPARTMENT OF THE INTERIOR to prior approval by the Office of Army Corps of Engineers and the Swinomish Indian Tribal Community, Management and Budget under the Fish and Wildlife Service Paperwork Reduction Act of 1980. pursuant to the Section 10/404 and Swinomish Tribal Coastal Zone Dated: September 24, 1996. Notice of Receipt of an Application, and Availability of an Environmental Management Permit applications, until Michael H. Trujillo, November 18, 1996. Assessment and Finding of No Assistant Surgeon General Director. Significant Impact for an Incidental ADDRESSES: Comments on the Section [FR Doc. 96–27411 Filed 10–24–96; 8:45 am] Take Permit by Plantation Palms, 10/404 Permit application may be BILLING CODE 4160±16±M L.L.C., for Construction of a addressed to Mr. Jack Gossett, Project Residential Project on the Fort Morgan Manager, Regulatory Branch, U.S. Army Corps of Engineers, P.O. Box C–3755, Peninsula, Alabama; Correction DEPARTMENT OF HOUSING AND Seattle, Washington 98124–2255. URBAN DEVELOPMENT Comments on the Swinomish Tribal AGENCY: Fish and Wildlife Service, Coastal Zone Management Permit [Docket No. FR±4124±N±09] Interior. application may be sent to the Natural Office of the Assistant Secretary for ACTION: Notice—correction. Resources Manager, Planning Community Planning and Department, Swinomish Tribal Development; Federal Property SUMMARY: On Thursday, September 18, Community, P.O. Box 817, LaConner, Suitable as Facilities To Assist the 1996, the Fish and Wildlife Service Washington 98257. Homeless announced in the Federal Register (61 Copies of the SFEIS are available for FR 49151–49152), a Notice of Receipt of review at (1) the Office of the Portland AGENCY: Office of the Assistant an Application, and availability of an Area Director, Bureau of Indian Affairs, Secretary for Community Planning and Environmental Assessment and Finding 911 NE 11th Avenue, Portland, Oregon Development, HUD. of No Significant Impact for an 97232–4169; (2) the Puget Sound ACTION: Notice. Incidental Take Permit by Plantation Agency, Bureau of Indian Affairs, 3006 Palms, L.L.C., for construction of a Colby Avenue, Everett, Washington SUMMARY: This Notice identifies 98201; and (3) the Swinomish Office of residential project on the Fort Morgan unutilized, underutilized, excess, and Planning and Community Development, Peninsula, Alabama. In the Summary of surplus Federal property reviewed by Swinomish Indian Tribal Community, the Federal Register Notice, the HUD for suitability for possible use to 950 Moorage Way, LaConner, assist the homeless. description of the Applicant’s project Washington 98257. A limited number of EFFECTIVE DATE: October 25, 1996. was incorrect. The Applicant’s Project is individual copies of the SFEIS may also described as an 84-unit condominium FOR FURTHER INFORMATION CONTACT: be obtained from this last address, or by complex and its associated landscaped Mark Johnston, Department of Housing calling that office at (503) 466–3163. grounds and parking areas and and Urban Development, Room 7256, FOR FURTHER INFORMATION CONTACT: Mr. 451 Seventh Street SW, Washington, DC recreational amenities. Public comments Jim LeBret, Team Leader, Resources, 20410; telephone (202) 708–1226; TDD must still be received by October 19, Environmental and Regulatory number for the hearing- and speech- 1996 to be considered on the above- Compliance, Portland Area Office, impaired (202) 708–2565, (these referenced application. Bureau of Indian Affairs, 911 NE 11th telephone numbers are not toll-free), or Dated: October 17, 1996. Avenue, Portland, Oregon 97232–4169, call the toll-free Title V information line Noreen K. Clough, telephone (503) 231–6749, FAX (503) at 1–800–927–7588. 231–2275. Regional Director. SUPPLEMENTARY INFORMATION: In [FR Doc. 96–27408 Filed 10–24–96; 8:45 am] SUPPLEMENTARY INFORMATION: The accordance with the December 12, 1988 Swinomish Indian Tribal Community is court order in National Coalition for the BILLING CODE 4310±55±P proposing to develop a 1200 slip salt Homeless v. Veterans Administration, water marina and related upland No. 88–2503–OG (D.D.C.), HUD support facilities on the Swinomish publishes a Notice, on a weekly basis, Indian Reservation in Skagit County, 55312 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices

Washington. The purpose of the project Indian Gaming Environmental Impact Statements. The is to establish an economic base for the agency Preferred Alternative includes AGENCY: Bureau of Indian Affairs, Swinomish Indian Tribe, meet regional all components of the Proposed Action Interior. demands for boat moorage, and restore and is the environmentally preferred historic intertidal habitat conditions. ACTION: Notice of Approved Tribal-State alternative incorporating mitigation and The proposed development is situated Compact. monitoring measures. The Proposed Action consists of expanding mining along the western shore of the SUMMARY: Pursuant to 25 U.S.C. 2710, of Swinomish Channel, immediately south the Indian Gaming Regulatory Act of and ore processing activities at the Lone of State Route 20. The 239.8 acre project 1988 (Pub. L. 100–497), the Secretary of Tree Mine. site is comprised of three elements: (1) the Interior shall publish, in the Federal Dated: October 16, 1996. the marina basin (57.8 acres); (2) the Register, notice of approved Tribal-State Colin P. Christensen, wetland mitigation site (62.8 acres); and Compacts for the purpose of engaging in Acting Winnemucca District Manager. (3) the upland commercial site (119.2 Class III (casino) gambling on Indian [FR Doc. 96–27363 Filed 10–24–96; 8:45 am] acres). reservations. The Assistant Secretary— BILLING CODE 4310±HC±M The project involves the excavation of Indian Affairs, Department of the Interior, through her delegated approximately 1,800,000 cubic yards of authority, has approved the Interim [CA±010±1220±00] silty sandy material from existing Agreement between the Blackfeet Indian agricultural fields and from 4.9 acres of Meeting of the Bakersfield Resource Tribe of the Blackfeet Reservation and Advisory Council palustrine wetlands. The excavated the State of Montana, which was material will be disposed on site and executed on June 24, 1996. AGENCY: Bureau of Land Management, used to develop the upland commercial DATES: This action is effective October Department of the Interior. site. The project will include the 25, 1996. ACTION: Meeting of the Bakersfield dredging of 4.92 acres and filling of 4.67 FOR FURTHER INFORMATION CONTACT: Resource Advisory Council. acres of palustrine wetland. Mitigation George T. Skibine, Director, Indian SUMMARY: Pursuant to the authorities in will include the creation of 22.2 acres of Gaming Management Staff, Bureau of the Federal Advisory Committee Act new intertidal wetland and the Indian Affairs, Washington, D.C. 20240, (Public Law 92–463) and the Federal enhancement, by reintroducing tidal (202) 219–4068. conditions, of another 40.6 acres. Land Policy and Management Act of Dated: October 10, 1996. 1976 (sec. 309), the Bureau of Land This document is supplemental to Ada E. Deer, Management Bakersfield District both a Draft Environmental Impact Assistant Secretary—Indian Affairs. Resource Advisory Council will meet in Statement (DEIS) prepared in 1987, and [FR Doc. 96–27424 Filed 10–24–96; 8:45 am] Three Rivers, California. a supplement to the 1987 DEIS, DATES: November 14–15, 1996. prepared in 1992 (SDEIS). These two BILLING CODE 4310±4N±P ADDRESSES: Gateway Lodge, 45978 previous documents examined a Sierra Drive, Three Rivers (300 yards preferred alternative of developing a Bureau of Land Management from the entrance to Sequoia National marina within a tidal flat on tribal land, Park). a second alternative to develop a marina [NV±020±1990±01] SUPPLEMENTARY INFORMATION: The 12 on the site described in the 1996 Record of Decision member Bakersfield Resource Advisory document, and a third, no action Council is appointed by the Secretary of AGENCY: Bureau of Land Management, alternative. The conclusion reached in the Interior to advise the Bakersfield Interior. the 1992 SDEIS was to pursue as District Manager on public land issues. ‘‘preferred’’ the second alternative, and ACTION: Notice of availability, Record of The Council will meet on Thursday and abandon the plan to develop the tidal Decision for Santa Fe Pacific Gold Friday, November 14 and 15, 1996, flat as described in the original, 1987 Corporation’s Lone Tree Mine beginning at 8:30 a.m. both days to DEIS. The net effect of the change in Expansion Project. discuss the feasibility of charging fees alternatives will produce approximately DATES: The Record of Decision will be for the use of BLM recreation areas. 62.8 acres of restored wetland, tidal flat distributed and made available to the There will be a field trip to nearby and inter-tidal habitat. public on October 18, 1996. Anyone public lands on Thursday afternoon, This notice is published pursuant to wishing to appeal the Record of and a public comment period beginning 1501.7 of the Council on Environmental Decision has 30 days following the date at 1 p.m. on Friday. Anyone may Quality Regulations, 40 CFR parts 1500– of publication of this notice in the discuss any public land issue during the 1508, implementing the procedural Federal Register. public comment period, and written comments will be accepted during the requirements of the National ADDRESSES: A copy of the Record of meeting. Environmental Policy Act of 1969, as Decision can be obtained from: Bureau amended (42 USC 4371 et. seq.), of Land Management, Winnemucca FOR FURTHER INFORMATION CONTACT: Larry Mercer, Public Affairs Officer, Department of the Interior Manual (516 District Office, 5100 East Winnemucca Bureau of Land Management, DM 106), and is in the exercise of Boulevard, Winnemucca, Nevada 89445. Bakersfield District, 3801 Pegasus Drive, FOR FURTHER INFORMATION CONTACT: authority delegated to the Assistant Bakersfield, CA 93308, telephone 805– Gerald L. Moritz, Project Manager, at the Secretary—Indian Affairs by 209 DM 8. 391–6010. above Winnemucca District address or Dated: October 18, 1996. telephone (702) 623–1500. Dated: October 17, 1996. Ada E. Deer, SUPPLEMENTARY INFORMATION: The Ron Fellows, Assistant Secretary—Indian Affairs. Record of Decision consists of the action District Manager. [FR Doc. 96–27399 Filed 10–24–96; 8:45 am] proposed in the Plan of Operation and [FR Doc. 96–27361 Filed 10–24–96; 8:45 am] BILLING CODE 4310±02±P analyzed in the Draft and Final BILLING CODE 4310±40±M Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices 55313

[NV±943±1430; N±61025] clarification or discussion is required, issued. The rationale for issuing a will be addressed in the Decision FONSI will be based on the analysis and Non-Competitive Sale of Public Lands Record (DR). Copies of this DR will be mitigation measures described in the in Nye County, NV provided to any person or agency Proposed Plan Amendment and AGENCY: Bureau of Land Management. commenting, or to other interested Environmental Assessment. The Notice of Realty Action published parties, upon written request. Dated: October 17, 1996. on September 24, 1996, in the Federal Furthermore, the resource management Michael A. Ferguson, planning process includes an Register on page 50050, is hereby Acting State Director, Arizona. 1 1 opportunity for administrative review amended to include the NE ⁄4SE ⁄4, [FR Doc. 96–27271 Filed 10–24–96; 8:45 am] NE1⁄4NW1⁄4NW1⁄4SE1⁄4, through a plan protest to the BLM BILLING CODE 4310±32±P NE1⁄4SE1⁄4NW1⁄4SE1⁄4, Director. Only those persons or N1⁄2NE1⁄4SW1⁄4NW1⁄4, and organizations who participated in the 1 1 1 1 planning process leading to this N ⁄2SE ⁄4SE ⁄4NW ⁄4 of section 33, T. 20 National Park Service S., R. 54 E., MDM. The acreage proposed plan amendment may protest. described is increased to 325, more or The subject of the proposed plan Submission of Study Package for less. However, State Route 160 will amendment is the route through the Office of Management and Budget continue to be the southern boundary of Crossman Peak Natural Scenic Area, Review Opportunity for Public the sale. therefore, this is the only route that may Comment be protested. The protest period extends Dated: October 3, 1996. for 30 days from the date of publication AGENCY: Department of the Interior, Ted S. Milesnick, of this notice. Protest must be made in National Park Service, Big Cypress Acting District Manager, Las Vegas, NV. accordance with the provisions of 43 National Preserve. [FR Doc. 96–27362 Filed 10–24–96; 8:45 am] CFR 1610.5–2. Comments on the overall ACTION: Notice and request for BILLING CODE 4310±HC±M project should be sent to the Havasu comments. Resource Area office at the address ABSTRACT: The National Park Service listed below. Protest letters concerning [AZ±050±96±1610] (NPS) and Virginia Polytechnic Institute the route across the Crossman Peak and State University propose to conduct Notice of Availability of a Proposed Natural Scenic area should be sent to a survey of the current amount and Yuma District Resource Management the Director of the BLM, Department of distribution of Off-Road Vehicle (ORV) Plan Amendment, Finding of No the Interior, Bureau of Land use within the Big Cypress National Significant Impact, and Environmental Management, 1849 C Street N.W., Preserve. The goal is to learn about this Assessment Washington D.C. 20240. use with respect to vehicle type, ADDRESSES: AGENCY: Bureau of Land Management, Send comments on the recreation activity type, and Interior. overall project to: Bureau of Land management unit location of use. Management, Kingman Field Office, ACTION: Notice of availability, notice of Results will be used by park planners, 2475 Beverly Avenue, Kingman, comment period, notice of protest park managers, and members of the Arizona, 86401. period. public in considering alternative ORV FOR FURTHER INFORMATION CONTACT: Bill management options. The study package SUMMARY: In accordance with the Wadsworth Realty Specialist, Kingman including two proposed survey National Environmental Policy Act of Field Office. Telephone: (520) 757– questionnaires has been submitted to 1969, the Bureau of Land Management, 3161. the Office of Management and Budget Yuma District, Havasu Field Office, has SUPPLEMENTARY INFORMATION: The for review. prepared a Yuma District proposed plan planning area is located in northwestern SUMMARY: Under the provisions of the amendment and environmental Arizona. The proposed plan amendment Paperwork Reduction Act of 1995 and 5 assessment (EA) that assesses the is part of an overall project which CFR Part 1320, Reporting and Record impacts of a proposed transmission line proposes construction of a transmission Keeping Requirements, the NPS invites between Kingman, Arizona and Lake line between Kingman and Lake Havasu public comment on a proposed Havasu City, Arizona. The 230 kV City. Based on the issues and concerns information collection request (ICR). transmission line has been proposed to identified during scoping, the EA Comments are invited on: (1) The need go through the Crossman Peak Natural focuses on impacts to wildlife for the information including whether Scenic Area. This EA describes and management, visual quality, unique the information has practical utility; (2) analyzes the proposed project and vegetation, Native American religious the accuracy of the reporting burden project alternatives, including the no concerns, access, and urban planning. estimate; (3) ways to enhance the action option. Furthermore, the route The proposed plan amendment is quality, utility, and clarity of the through the Crossman Peak Natural needed because one alternative route information to be collected; and (4) Scenic area, if approved, will involve goes through the Crossman Peak Natural ways to minimize the burden of the amending the Yuma District Resource Scenic Area. A portion of another information collection on respondents, Management Plan. This notice is alternative route is within the city limits including the use of automated intended to invite the public to of Lake Havasu City, Arizona. The collection techniques or other forms of comment on the analysis of impacts primary concerns for the route through information technology. presented in the proposed plan the Scenic Area are the impacts on The primary purpose of the proposed amendment and EA. visual quality and the potential impact ICR is to document the current amount DATES: Written comments will be to Native American religious concerns. and distribution of ORV use, by vehicle accepted for up to 30 days following the The issues for the other alternative deal type, recreation activity type, and publication of this notice. Any mostly with the proximity of the route management unit, within the Preserve. comments received by the close of the to Lake Havasu City, Arizona. For all Existing use patterns are inadequately comment period will be evaluated and routes it is anticipated that a Finding of documented. Data gathered will be those letters that identify issues, where No Significant Impact (FONSI) will be summarized and incorporated into the 55314 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices

ORV Plan and used by park planners, Dated: October 22, 1996. DATES: Comments on the proposed park managers, and members of the Terry N. Tesar, information collection must be received public in planning and management Information Collection Clearance Officer, by December 24, 1996, to be assured of decision making activities. This Audits and Accountability Team, National consideration. information will be used to characterize Park Service. ADDRESSES: Comments may be mailed to existing ORV use and form the basis for [FR Doc. 96–27482: Filed 10–24–96: 8:45 am] Nancy Broderick, Office of Surface consideration of alternative BILLING CODE 4310±70±M Mining Reclamation and Enforcement, management options. 1951 Constitution Ave, NW, Room There were no public comments 120—SIB, Washington, DC 20240. received or submitted to OMB for Mississippi River Coordinating FOR FURTHER INFORMATION CONTACT: review as a result of publishing a 60 day Commission Meeting To request a copy of the information notice of intention to request clearance AGENCY: National Park Service, Interior. collection request, explanatory of information collection for this survey information and related forms, contact at Big Cypress National Preserve. ACTION: Notice of meeting. John A. Trelease, at (202) 208–2783. The NPS is requesting OMB to SUMMARY: This notice announces an process this ICR under the emergency SUPPLEMENTARY INFORMATION: The Office upcoming meeting of the Mississippi processing provision with a decision of Management and Budget (OMB) River Coordinating Commission. Notice date of two weeks after OMB receives regulations at 5 CFR 1320, which of this meeting is required under the the request but no later than November implement provisions of the Paperwork Federal Advisory Committee Act (Public 15, 1996. Reduction Act of 1995 (Pub. L. 104–13), Law 92–463). require that interested members of the DATES: Public comments will be MEETING DATE, TIME, AND ADDRESSES: accepted for thirty days from the date public and affected agencies have an Wednesday, December 4, 1996, 6:30 listed at the top of this page in the opportunity to comment on information p.m. to 9:30 p.m.; Metropolitan Council Federal Register. collection and recordkeeping activities Chambers, 230 East Fifth Street, St. (see 5 CFR 1320.8(d)). This notice SEND COMMENTS TO: Jeffrey L. Marion, Paul, Minnesota. identifies information collections that Ph.D., Unit Leader, Cooperative Park AGENDA: An agenda for the meeting will OSM will be submitting to OMB for Studies Unit, Department of Forestry, be available by November 27, 1996. extension. These collections are Virginia Tech, Blacksburg, VA 24061– Contact the Superintendent of the contained in 30 CFR part 783, 0324; or to: Office of Information and Mississippi National River and Underground Mining Permit Regulatory Affairs for OMB, Attention Recreation Area (MNRRA) at the Applications—Minimum Requirements Desk Officer for the Interior Department, address listed below. Public statements for Information on Environmental Office of Management and Budget, about matters related to the MNRRA Resources. Washington, DC 20503. will be taken. OSM has revised burden estimates, FOR FURTHER INFORMATION OR A COPY OF FOR FURTHER INFORMATION CONTACT: where appropriate, to reflect current THE QUESTIONNAIRE SUBMITTED FOR OMB Superintendent JoAnn Kyral, reporting levels or adjustments based on REVIEW, CONTACT: Jeff Marion, 540–231– Mississippi National River and reestimates of burden or respondents. 6603. Recreation Area, 175 East Fifth Street, OSM will request a 3-year term of SUPPLEMENTARY INFORMATION: Suite 418, St. Paul, Minnesota 55101 approval for each information collection (612–290–4160). activity. Title: Big Cypress National Preserve SUPPLEMENTARY INFORMATION: The Comments are invited on: (1) The Off-Road Vehicle Permit Holder Survey. need for the collection of information Form: Not applicable. Mississippi River Coordinating Commission was established by Public for the performance of the functions of OMB Number: To be assigned. the agency; (2) the accuracy of the Expiration Date: To be assigned. Law 100–696, dated November 18, 1988. Type of Request: Request for new agency’s burden estimates; (3) ways to Dated: October 11, 1996. enhance the quality, utility and clarity clearance. William W. Schenk, Description of Need: The National of the information collection; and (4) Field Director, Midwest Field Area. Park Service needs information about ways to minimize the information the amount and distribution of ORV use [FR Doc. 96–27481 Filed 10–24–96; 8:45 am] collection burden on respondents, such within the Preserve to support BILLING CODE 4310±70±P as use of automated means of collection development of an ORV Vehicle of the information. A summary of the Management Plan. The proposed public comments will be included in Office of Surface Mining Reclamation OSM’s submissions of the information information to be collected is not and Enforcement available from existing records, sources, collection requests to OMB. or observations. The following information is provided Notice of Proposed Information for the information collection: (1) Title Description of Respondents: Collection Individuals who currently hold NPS- of the information collection; (2) OMB issued ORV permits. AGENCY: Office of Surface Mining control number; (3) summary of the Estimated Average Number of Reclamation and Enforcement. information collection activity; and (4) Respondents: 1,500. ACTION: Notice and request for frequency of collection, description of Estimated Average Number of comments. the respondents, estimated total annual Responses: 1,050. responses, and the total annual Estimated Average Burden Hours Per SUMMARY: In compliance with the reporting and recordkeeping burden for Response: 30 minutes. Paperwork Reduction Act of 1995, the the collection of information. Estimated Annual Reporting Burden: Office of Surface Mining Reclamation Title: Underground Mining Permit 525 hours. and Enforcement (OSM) is announcing Applications—Minimum Requirements Estimated Frequency of Response: its intention to request approval for the for Information on Environmental One time in a one month period once collections of information for 30 CFR Resources, 30 CFR 783. during the year’s duration of the study. part 783. OMB Control Number: 1029–0038. Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices 55315

Summary: Applicants for Drug Schedule including the validity of the underground coal mining permits are methodology and assumptions used; required to provide adequate Meperidine (9230) ...... II * enhance the quality, utility, and descriptions of the environmental Morphine (9300) ...... II clarity of the information to be resources that may be affected by Fentanyl (9801) ...... II collected; and proposed underground coal mining * minimize the burden of the activities. By letter dated July 18, 1996, Sanofi collection of information on those who Bureau Form Number: None. Winthrop, Inc. has requested that its are to respond, including through the Frequency of Collection: On Occasion. application to import the above listed use of appropriate automated, Description of Respondents: controlled substances be withdrawn. electronic, mechanical, or other Underground coal mining and Therefore, Sanofi Winthrop, Inc’s technological collection techniques or reclamation applicants. application to import the above listed other forms of information technology, Total Annual Responses: 134. controlled substances is hereby e.g., permitting electronic submission of Total Annual Burden Hours: 11,757 withdrawn. responses. hours. Dated: September 25, 1996. Agency: Employment Standards Dated: October 21, 1996. Gene R. Haislip, Administration. Sarah E. Donnelly, Deputy Assistant Administrator, Office of Title: Vehicle Mechanical Inspection Report for Transportation Subject to Acting Chief, Division of Regulatory Support. Diversion Control, Drug Enforcement Administration. Department of Transportation [FR Doc. 96–27405 Filed 10–24–96; 8:45 am] [FR Doc. 96–27355 Filed 10–24–96; 8:45 am] Requirements, Wh–514; and Vehicle BILLING CODE 4310±05±M BILLING CODE 4410±09±M Mechanical Inspection Report for Transportation Subject to Department of Labor Safety Standards, WH–514a. DEPARTMENT OF JUSTICE DEPARTMENT OF LABOR OMB Number: 1215–0036. Agency Number: WH–514, WH–514a. Drug Enforcement Administration Office of the Secretary Frequency: As needed. Affected Public: Individuals or Importer of Controlled Substances households; Business or other for-profit; Notice of Withdrawal of Application Submission for OMB Review; Comment Request Farms. As set forth in the Federal Register Number of Respondents: 1,200. (FR Doc. 96–17337) Vol. 61, No. 132 at October 21, 1996. Estimated Time Per Respondent: 45 page 36082, dated July 9, 1996, Med- The Department of Labor (DOL) has minutes. Pharmex, Inc., 2727 Thompson Creek submitted the following public Total Burden Hours: 2,700. Road, Pamona, California 91767, made information collection requests (ICRs) to Total Annualized capital/startup application to the Drug Enforcement the Office of Management and Budget costs: 0. Administration (DEA) for registration as (OMB) for review and approval in Total annual costs (operating/ an importer for pentobarbital (2270). accordance with the Paperwork maintaining systems or purchasing By letter dated September 4, 1996, Reduction Act of 1995 (P.L. 104–13, 44 services): 0. Med-Pharmex, Inc. requested that their U.S.C. Chapter 35). A copy of each Description: The Department of Labor application to import pentobarbital be individual ICR, with applicable seeks to revise this information withdrawn. Therefore, Med-Pharmex, supporting documentation, may be collection to implement the minimum Inc.’s application to import obtained by calling the Department of transportation liability insurance pentobarbital is hereby withdrawn. Labor Acting Departmental Clearance requirement for migrant workers Officer, Theresa M. O’Malley ((202) published as a final rule on May 16, Dated: September 25, 1996. 219–5095). Individuals who use a 1996. The information collected on Gene R. Haislip, telecommunications device for the deaf Forms WH–514 and WH–514a Deputy Assistant Administrator, Office of (TTY/TDD) may call (202) 219–4720 specifically identifies the vehicles for Diversion Control, Drug Enforcement between 1:00 p.m. and 4:00 p.m. Eastern which authorization to transport Administration. time, Monday through Friday. migrant and seasonal agricultural [FR Doc. 96–27354 Filed 10–24–96; 8:45 am] Comments should be sent to Office of workers is requested and notes the BILLING CODE 4410±09±M Information and Regulatory Affairs, applicable safety standards met by each Attn: OMB Desk Officer for BLS, DM, vehicle. The form is completed by the ESA, ETA, MSHA, OSHA, PWBA, or mechanic making the safety inspection Importer of Controlled Substances; VETS, Office of Management and of the vehicle. Without this information, Notice of Withdrawal of Application Budget, Room 10235, Washington, DC it would be impossible for the Wage and As set forth in the Federal Register 20503 ((202) 395–7316), within 30 days Hour Division to verify that vehicles (FR Doc. 96–13563) Vol. 61, No. 105 at from the date of this publication in the used to transport migrant and seasonal page 27099, dated May 30, 1996, Sanofi Federal Register. agricultural workers meet the safety Winthrop Inc., 200 East Oakton Street, The OMB is particularly interested in standards required by the Migrant and Des Plaines, Illinois 60018, made comments which: Seasonal Agricultural Worker Protection application to the Drug Enforcement * evaluate whether the proposed Act. Administration (DEA) to import the collection of information is necessary Agency: Bureau of Labor Statistics. basic classes of controlled substances for the proper performance of the Title: Cognitive and Psychological listed below: functions of the agency, including Research. whether the information will have OMB Number: 1220–0141. Drug Schedule practical utility; Frequency: One Time. * evaluate the accuracy of the Affected Public: Individuals or Codeine (9050) ...... II agency’s estimate of the burden of the households. Hydromorphone (9150) ...... II proposed collection of information, Number of Respondents: 3,000. 55316 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices

Estimated Time Per Respondent: 1 Employment and Training subject matter of the investigations may hour. Administration request a public hearing, provided such Total Burden Hours: 3,000. request is filed in writing with the Investigations Regarding Certifications Program Manager, Office of Trade Total Annualized capital/startup of Eligibility to Apply for Worker Adjustment Assistance, at the address costs: 0. Adjustment Assistance shown below, not later than November Total annual costs (operating/ Petitions have been filed with the 4, 1996. maintaining systems or purchasing Secretary of Labor under Section 221(a) Interested persons are invited to services): 0. of the Trade Act of 1974 (‘‘the Act’’) and submit written comments regarding the Description: The proposed laboratory are identified in the Appendix to this subject matter of the investigations to research will be conducted from FY97 notice. Upon receipt of these petitions, the Program Manager, Office of Trade to FY99 to enhance data quality in the the Program Manager of the Office of Adjustment Assistance, at the address Trade Adjustment Assistance, Bureau of Labor Statistics’ (BLS) shown below, not later than November Employment and Training surveys. Improvements will be made by 4, 1996. examining psychological and cognitive Administration, has instituted The petitions filed in this case are aspects of BLS’s data collection investigations pursuant to Section 221(a) of the Act. available for inspection at the Office of procedures, including questionnaire The purpose of each of the the Program Manager, Office of Trade design, interviewing procedures, and investigations is to determine whether Adjustment Assistance, Employment administration technology. the workers are eligible to apply for and Training Administration, U.S. Theresa M. O’Malley, adjustment assistance under Title II, Department of Labor, 200 Constitution Acting Departmental Clearance Officer. Chapter 2, of the Act. The investigations Avenue, N.W., Washington, D.C. 20210. [FR Doc. 96–27453 Filed 10–24–96; 8:45 am] will further relate, as appropriate, to the Signed at Washington, D.C. this 23rd day BILLING CODE 4510±27±M determination of the date on which total or partial separations began or of September, 1996. threatened to begin and the subdivision Russell T. Kile, of the firm involved. Acting Program Manager, Policy and The petitioners or any other persons Reemployment Services, Office of Trade showing a substantial interest in the Adjustment Assistance.

Appendix

PETITIONS INSTITUTED ON 09/23/96

Date of TA±W Subject firm (petitioners) Location petition Product(s)

32,755 ...... Gordon Garment (Wkrs) ...... Bristol, VA ...... 09/05/96 Ladies' & Girls' Swimwear. 32,756 ...... Mountain Bag Mfg (Comp) ...... Kalispell, MT ...... 09/06/96 Buck Containers. 32,757 ...... Lockheed Martin (Wkrs) ...... Syracuse, NY ...... 08/25/96 Ocean Radar and Sensor Systems. 32,758 ...... Moen, Inc (UAW) ...... Elyria, OH ...... 08/30/96 Plumbing Products. 32,759 ...... Guardian Life Ins Co (Wkrs) ...... Portland, OR ...... 09/05/96 Provides Life Insurance. 32,760 ...... Victoria Royal (UNITE) ...... New York, NY ...... 09/05/96 Samples for Ladies' Dresses. 32,761 ...... TASUS Corp (Wkrs) ...... Bloomington, IN ...... 08/30/96 Decals for Auto and Marine Industries. 32,762 ...... Austin Apparel Mfg, Inc (USWA) ...... Louisa, KY ...... 08/19/96 Jeans. 32,763 ...... Future Knits, Inc (Wkrs) ...... Charlotte, NC ...... 09/05/96 Tee Shirts. 32,764 ...... Schreiber Foods, Inc (Wkrs) ...... Green Bay, WI ...... 08/27/96 Processed Cheese & Cut & Wrap Cheese. 32,765 ...... Ryder Scott Co (Comp) ...... Denver, CO ...... 08/15/96 Petroleum Engineering Studies. 32,766 ...... Garden State Tanning (Wkrs) ...... Williamsport, MD ..... 08/18/96 Leather Upholstery. 32,767 ...... Nowsco Well Service (Wkrs) ...... Woodward, OK ...... 09/04/96 Oil and Gas Exploration. 32,768 ...... Burlington Menswear Div. (Comp) ...... Forest City, NC ...... 09/13/96 Men's & Women's Wear. 32,769 ...... Seaboard Oil Co (Wkrs) ...... Midland, TX ...... 08/06/96 Crude Oil and Natural Gas. 32,770 ...... Total Petroleum (Wkrs) ...... Arkansas City, KS ... 09/09/96 Gasoline. 32,771 ...... Hollingsworth and Vose Co (Comp) ...... Floyd, VA ...... 09/10/96 Apparel Interlining. 32,772 ...... Wan-Pat, Inc. (Wkrs) ...... Newport, PA ...... 09/10/96 Girls' Dresses & Childrens' Sets. 32,773 ...... Viersen and Cochran (Wkrs) ...... Oklahoma City, OK 09/07/96 Exploration & Prod. of Oil, Gas. 32,774 ...... Motor Wheel Corp (UAW) ...... Lansing, MI ...... 08/22/96 Office Workers. 32,775 ...... Jet Sew Technologies, Inc (Wkrs) ...... Barneveld, NY ...... 09/11/96 Heavy-Duty Machinery for Industrial Mfg. 32,776 ...... Union Special Corp (Wkrs) ...... Huntley, IL ...... 07/23/96 Industrial Sewing Machines. 32,777 ...... P. Clayman and Sons, Inc (Wkrs) ...... St. Louis, MO ...... 09/13/96 Shoe Insole Strips & Board. 32,778 ...... Lance, Inc (Wkrs) ...... Greenville, TX ...... 09/10/96 Assorted Snack Food Products. 32,779 ...... AUX Tantalum Corp (Wkrs) ...... Biddeford, ME ...... 08/20/96 Miniature Tantalum Capacitors. 32,780 ...... SKF Industries (USWA) ...... King of Prussia, PA 09/11/96 Bearings. 32,781 ...... Western Atlas Logging (Wkrs) ...... Prudhoe Bay, AK ..... 08/29/96 Oil and Gas Exploration.

[FR Doc. 96–27448 Filed 10–24–96; 8:45 am]

BILLING CODE 4510±30±M Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices 55317

[TA±W±32,759] Investigations Regarding Certifications request a public hearing, provided such of Eligibility To Apply for Worker request is filed in writing with the The Guardian Life Insurance Company; Adjustment Assistance Program Manager, Office of Trade Portland, OR; Notice of Termination of Adjustment Assistance, at the address Investigation Petitions have been filed with the shown below, not later than November Secretary of Labor under Section 221(a) 4, 1996. Pursuant to Section 221 of the Trade of the Trade Act of 1974 (‘‘the Act’’) and Act of 1974, an investigation was are identified in the Appendix to this Interested persons are invited to initiated on September 23, 1996 in notice. Upon receipt of these petitions, submit written comments regarding the response to a worker petition which was the Program Manager of the Office of subject matter of the investigations to filed on behalf of workers and former Trade Adjustment Assistance, the Program Manager, Office of Trade workers at The Guardian Life Insurance Employment and Training Adjustment Assistance, at the address Company, located in Portland, Oregon Administration, has instituted shown below, not later than November (TA–W–32,759). investigations pursuant to Section 221 4, 1996. The petitioner has requested that the (a) of the Act. The petitions filed in this case are petition be withdrawn. Consequently, The purpose of each of the available for inspection at the Office of further investigation in this case would investigations is to determine whether the Program Manager, Office of Trade serve no purpose, and the investigation the workers are eligible to apply for Adjustment Assistance, Employment has been terminated. adjustment assistance under Title II, and Training Administration, U.S. Chapter 2, of the Act. The investigations Signed at Washington, D.C. this 7th day of Department of Labor, 200 Constitution will further relate, as appropriate, to the Avenue, NW., Washington, DC 20210. October 1996. determination of the date on which total Russell T. Kile, or partial separations began or Signed at Washington, DC this 30th day of Acting Program Manager, Policy and threatened to begin and the subdivision September, 1996. Reemployment Services, Office of Trade of the firm involved. Russell T. Kile, Adjustment Assistance. The petitioners or any other person Acting Program Manager, Policy and [FR Doc. 96–27447 Filed 10–24–96; 8:45 am] showing a substantial interest in the Reemployment Services, Office of Trade BILLING CODE 4510±30±M subject matter of the investigations may Adjustment Assistance.

Appendix

PETITIONS INSTITUTED ON 9/30/96

Date of TA±W Subject firm (petitioners) Location petition Product(s)

32,782 ...... Hydro-Fit, Inc. (Co.) ...... Eugene, OR ...... 9/13/96 Webbed gloves for water fitness. 32,783 ...... Hudson RCI (Co.) ...... Temecula, CA ...... 9/11/96 Disposable medical devices. 32,784 ...... A.P. Green Refractories (Wkrs.) ...... Rockdale, IL ...... 9/12/96 Soft gaskets. 32,785 ...... Midas International (Wkrs.) ...... North Brunswick, NJ 8/25/96 Mufflers, exhaust, brakes, shocks. 32,786 ...... Miller Automation, Inc. (Wkrs.) ...... Troy, OH ...... 8/21/96 Peripheral welding equipment. 32,787 ...... Hoskins Manufacturing (UNITE) ...... New Paris, IN ...... 9/11/96 Spark plugs, thermocouple, resistance. 32,788 ...... Tyrone Apparel Mfg. (Wkrs.) ...... Tyrone, PA ...... 9/13/96 Ladies', mens' and children's pants. 32,789 ...... Stanly Knitting Mills (Co.) ...... Mountain City, TN ..... 9/19/96 Sports caps. 32,790 ...... Walker Information, Inc. (Co.) ...... Indianapolis, IN ...... 9/16/96 Market research. 32,791 ...... River Heights, Inc. (Wkrs.) ...... Crump, TN ...... 9/18/96 Knit sport shirts. 32,792 ...... Lansdale Semiconductor (Co.) ...... Tempe, AZ ...... 9/24/96 Silicon bipolar integrated circuit wafer.

[FR Doc. 96–27449 Filed 10–24–96; 8:45 am] the Federal Register on January 26, All workers of Lee Apparel Company, St. BILLING CODE 4510±30±M 1996 (61 FR 2537). Joseph, Missouri (TA–W–31,685), and At the request of the union Seymour, Missouri (TA–W–31,685A) representative, the Department reviewed engaged in employment related to the the certification for workers of the production of jeans who became totally or [TA±W±31,685; TA±W±31,685A] subject firm. The workers produce jeans. partially separated from employment on or Lee Apparel Company, Seymour, The Lee Company’s Seymour, Missouri after November 6, 1994 are eligible to apply Missouri; Amended Certification production facility is scheduled to close for adjustment assistance under Section 223 Regarding Eligibility To Apply for in November 1996. of the Trade Act of 1974. Worker Adjustment Assistance The intent of the Department’s Signed at Washington, D.C. this 9th day of certification is to include all workers of October 1996. In accordance with Section 223 of the Lee Apparel Company who were Russell T. Kile, Trade Act of 1974 (19 USC 2273) the adversely affected by imports. Program Manager, Policy and Reemployment Department of Labor issued a Notice of Accordingly, the Department is Services, Office of Trade Adjustment Certification Regarding Eligibility to amending the certification to cover the Assistance. Apply for Worker Adjustment workers separated from Lee Apparel [FR Doc. 96–27446 Filed 10–24–96; 8:45 am] Assistance on December 4, 1995, Company, Seymour, Missouri. applicable to all workers of Lee Apparel The amended notice applicable to BILLING CODE 4510±30±M Company located in St. Joseph, TA–W–31,685 is hereby issued as Missouri. The notice was published in follows: 55318 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices

[TA±W±32,471] workers of National Garment Company for workers of the subject firm. The located in Fayette, Missouri. The notice State agency reports that employees of Amended Certification Regarding was published in the Federal Register several temporary agencies were Eligibility To Apply for Worker on September 26, 1995 (60 FR 49634). directly involved in the manufacturing Adjustment Assistance At the request of the company, the of the computer modules and box In accordance with Section 223 of the Department reviewed the certification assemblies produced by SCI Systems in Trade Act of 1974 (19 USC 2273) the for workers of the subject firm. New Augusta, Maine. Based on these Department of Labor issued a information provided by the company findings, the Department is amending shows that worker separations have Certification of Eligibility to Apply for the certification to include leased occurred at the subject firms’ Worker Adjustment Assistance on July workers from Kelly Temporary Services, production facility in Chandler, 22, 1996, applicable to all workers of Olsten Staffing Services, Manpower Oklahoma. The workers are engaged in Lee Thomas, Incorporated, Los Angeles, Temporary Services all located in the production of children’s apparel. Augusta, Maine; TAD Resources California. The notice was published in The intent of the Department’s the Federal Register on August 6, 1996 International Inc., Westbrook, Maine; certification is to include all workers of Interstate Technical Services, Nashua, (61 FR 40852). the subject firm who were adversely At the request of the State Trade New Hampshire; The Computer affected by increased imports of apparel. Merchant, Norwell, Massachusetts; and Coordinator, the Department reviewed Accordingly, the Department is the certification for workers of the Manpower Technical, Portland, Maine. amending the certification to cover the The intent of the Department’s subject firm. New information provided workers of National Garment Company, by the company shows that in May certification is to include all workers of Chandler, Oklahoma. Digital SCI Systems, Inc. adversely 1993, all of the employees of Lee The amended notice applicable to Thomas, Incorporated became affected by imports. TA–W–31,240 is hereby issued as The amended notice applicable to employees of Your Staff, Incorporated, follows: Los Angeles, California. The workers TA–W–31,578 is hereby issued as were engaged in the production of ‘‘All workers of National Garment follows: Company, Fayette, Missouri (TA–W–31,240) ‘‘All workers engaged in the production of apparel. and Chandler, Oklahoma (TA–W–31,240B) The intent of the Department’s who became totally or partially separated computer modules and box assemblies at SCI certification is to include all workers of from employment on or after July 3, 1994, are Systems, Inc., formerly Digital Equipment Lee Thomas, Incorporated who were eligible to apply for adjustment assistance Corporation, located in Augusta, Maine, adversely affected by imports. under Section 223 of the Trade Act of 1974.’’ including leased workers from Kelly Temporary Services, Olsten Staffing Services, Accordingly, the Department is Signed at Washington, D.C. this 7th day of Manpower Temporary Services all located in October 1996. amending the certification to include all Augusta, Maine; TAD Resources workers of Lee Thomas, Incorporated, as Russell T. Kile, International Inc., Westbrook, Maine; known as Your Staff, Incorporated at the Program Manager, Policy and Reemployment Interstate Technical Services, Nashua, New Los Angeles, California location. Services, Office of Trade Adjustment Hampshire; The Computer Merchant, The amended notice applicable to Assistance. Norwell, Massachusetts; and Manpower TA–W–32,471 is hereby issued as [FR Doc. 96–27444 Filed 10–24–96; 8:45 am] Technical, Portland, Maine, engaged in the follows: BILLING CODE 4510±30±M production of computer modules and box assemblies at SCI Systems, Inc. in Augusta, ‘‘All workers of Lee Thomas, Incorporated, Maine who became totally or partially A/K/A Your Staff, Incorporated, Los Angeles, [TA±W±31,578] separated from employment on or after California, became totally or partially October 12, 1994, are eligible to apply for separated from employment on or after May Amended Certification Regarding adjustment assistance under Section 223 of 29, 1995 are eligible to apply for adjustment Eligibility To Apply for Worker the Trade Act of 1974.’’ assistance under Section 223 of the Trade Act Adjustment Assistance Signed at Washington, D.C. this 7th day of of 1974.’’ October 1996. Signed at Washington, DC this 9th day of In the matter of SCI Systems Inc., (formerly Russell T. Kile, October, 1996. Digital Equipment Corporation), Augusta, Program Manager, Policy and Reemployment Russell T. Kile, Maine; including leased workers of: Kelly Temporary Services, Olsten Staffing Services, Services, Office of Trade Adjustment Acting Program Manager, Policy and Manpower Temporary Services, Tech Aid, Assistance. Reemployment Services, Office of Trade Augusta, Maine; TAD Resources [FR Doc. 96–27445 Filed 10–24–96; 8:45 am] Adjustment Assistance. International Inc., Westbrook, Maine; BILLING CODE 4501±30±M [FR Doc. 96–27451 Filed 10–24–96; 8:45 am] Interstate Technical Services, Nashua, New BILLING CODE 4510±30±M Hampshire; The Computer Merchant, Norwell, Massachusetts; and Manpower Technical, Portland, Maine. [NAFTA±01085] [TA±W±31,240; TA±W±31,240B] In accordance with Section 223 of the Amended Certification Regarding Amended Certification Regarding Trade Act of 1974 (19 USC 2273) the Eligibility To Apply for NAFTA Eligibility To Apply for Worker Department of Labor issued a Transitional Adjustment Assistance Adjustment Assistance; National Certification of Eligibility to Apply for Garment Company, Fayette, Missouri Worker Adjustment Assistance on In accordance with Section 250(a), and Chandler, Oklahoma December 1, 1995, applicable to all Subchapter D, Chapter 2, Title II, of the workers of SCI Systems, Inc., formerly Trade Act of 1974, as amended (19 In accordance with Section 223 of the Digital Equipment Corporation, located U.S.C. 2273), the Department of Labor Trade Act of 1974 (19 USC 2273) the in Augusta, Maine. The notice was issued a Certification for NAFTA Department of Labor issued a published in the Federal Register on Transitional Adjustment Assistance on Certification of Eligibility to Apply for January 26, 1996 (61 FR 2537). July 22, 1996, applicable to workers of Worker Adjustment Assistance on At the request of the State agency, the Lee Thomas Incorporated located in Los September 12, 1995, applicable to all Department reviewed the certification Angeles, California. The notice was Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices 55319 published in the Federal Register on (1) If it appears on the basis of facts Labor’s prior decision. Accordingly, the August 6, 1996 (61 FR 40853). not previously considered that the application is denied. At the request of the State Trade determination complained of was Signed at Washington, D.C., this 8th day of Coordinator, the Department reviewed erroneous; October, 1996. the certification for workers of the (2) if it appears that the determination Russell T. Kile, complained of was based on a mistake subject firm. New Information provided Program Manager, Policy and Reemployment by the company shows that in May in the determination of facts not Services, Office of Trade Adjustment 1993, all of the employees of Lee previously considered; or Assistance. (3) if in the opinion of the Certifying Thomas, Incorporated became [FR Doc. 96–27452 Filed 10–24–96; 8:45 am] Officer, a misinterpretation of facts or of employees of Your Staff, Incorporated, BILLING CODE 4510±30±M Los Angeles, California. The workers the law justified reconsideration of the were engaged in the production of decision. apparel. Accordingly, the Department is The workers produce glass containers. [NAFTA±00651] amending the certification to cover all of Bottles represent the predominant # # Amended Certification Regarding the workers of Lee Thomas, portion of sales at Plants 18 and 19 in Eligibility To Apply for NAFTA Incorporated also known as Your Staff, Brockway. Transitional Adjustment Assistance Incorporated, Los Angeles, California. Counsel for Local 110 asserts that the The intent of the Department’s Brockway workers should be certified for TAA because the Department made In the matter of SCI Systems Inc., (formerly certification is to include those workers Digital Equipment Corporation; Augusta, of Lee Thomas, Incorporated also favorable determinations for workers at Maine; including leased workers of: Kelly known as Your Staff Incorporated who other glass container production Temporary Services, Olsten Staffing Services, were adversely affected by the shift in facilities. In those cases, the Department Manpower Temporary Services, Tech Aid, found import impact. Those firm(s) Augusta, Maine; TAD Resources production to Mexico. International Inc., Westbrook, Maine; The amended notice applicable to were either importing glass containers or their customers increased reliance on Interstate Technical Services; Nashua, New NAFTA—01085 is hereby issued as Hampshire; The Computer Merchant, follows: imports. Counsel for Local 110 also believes Norwell, Massachusetts; and Manpower Technical, Portland, Maine. ‘‘Workers of Lee Thomas, Incorporated A/ that employees lost production K/A Your Staff, Incorporated, Los Angeles, opportunities at Brockway’s Plants #18 In accordance with Section 250(a), California, who became totally or partially and #19 because of the saturation of the Subchapter D, Chapter 2, Title II, of the separated from employment on or after May Trade Act of 1974, as amended (19 USC 29, 1995, are eligible to apply for NAFTA– market from Mexican and Canadian imports. Findings of the investigation 2273), the Department of Labor issued a TAA under Section 250 of the Trade Act of Certification for NAFTA Transitional 1974.’’ showed that major declining customers of Owens-Brockway, Plants #18 and #19, Adjustment Assistance on December 1, Signed at Washington, D.C. this 9th day of 1995, applicable to all workers of SCI October 1996. reported no imports from Mexico or Canada of glass containers competitive Systems, Inc., formerly Digital Russell T. Kile, Equipment Corporation, located in Acting Program Manager, Policy and with the articles produced at the subject firm. These customers also reported that Augusta, Maine. The notice was Reemployment Services, Office of Trade published in the Federal Register on Adjustment Assistance. they were switching from glass to January 26, 1996 (61 FR 2538). [FR Doc. 96–27450 Filed 10–24–96; 8:45 am] plastic containers. Counsel for Local 110 claims that the At the request of the State agency, the BILLING CODE 4510±30±M jobs formerly done at the Brockway Department reviewed the certification plants were sent out of the country. for workers of the subject firm. The State agency reports that employees of [NAFTA±00984; NAFTA±00984A] Counsel for Local 110 presented evidence that molds, one of the most several temporary agencies were Owens-Illinois, Incorporated Owens important components in the glass directly involved in the manufacturing Brockway Glass Containers, Plants #18 container production process, were of the computer modules and box and #19 Brockway, Pennsylvania, and being shipped from the plants in assemblies produced by SCI Systems in Notice of Negative Determination Brockway to foreign countries. Augusta, Maine. Based on these Regarding Application for Certification under Section 250 of the findings, the Department is amending Reconsideration Trade Act is premised upon a shift in the certification to include leased production from the workers’ firm to workers from Kelly Temporary Services, By an application dated August 29, Mexico or Canada, or increased Olsten Staffing Services, Manpower 1996, counsel to Glass, Molders, Pottery, company or customer imports of the Temporary Services all located in Plastics & Allied Workers International product produced at the workers’ firm Augusta, Maine; TAD Resources Union and its Local Union, GMP Local from Mexico or Canada. Owens- International Inc., Westbrook, Maine; 110, requested administrative Brockway produced glass containers, Interstate Technical Services, Nashua, reconsideration of the Department’s and although molds are used to produce New Hampshire; The Computer negative determination regarding the glass containers, molds cannot be Merchant, Norwell, Massachusetts; and eligibility for workers of the subject firm considered like or directly competitive Manpower Technical, Portland, Maine. to apply for NAFTA-Transitional with glass containers. The intent of the Department’s Adjustment Assistance. The notice of certification is to include all workers of negative determination was issued on Conclusion Digital SCI Systems, Inc. adversely July 3, 1996 and published in the After review of the application and affected by imports from Canada. Federal Register on August 2, 1996 (61 investigative findings, I conclude that The amended notice applicable to FR 40454). there has been no error or NAFTA–00651 is hereby issued as Pursuant to 29 CFR 90.18(c) misinterpretation of the law or of the follows: reconsideration may be granted under facts which would justify All workers engaged in the production of the following circumstances: reconsideration of the Department of computer modules and box assemblies at SCI 55320 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices

Systems, Inc., formerly Digital Equipment to laborers and mechanics of the procedure by submitting a SF–308. Corporation, located in Augusta, Maine, specified classes engaged on contract Contracts for which bids have been including leased workers from Kelly work of the character and in the opened shall not be affected by this Temporary Services, Olsten Staffing Services, localities described therein. notice. Also, consistent with 29 CFR Manpower Temporary Services all located in Good cause is hereby found for not Augusta, Maine; TAD Resources 1.6(c)(i)(A), when the opening of bids is International Inc., Westbrook, Maine; utilizing notice and public comment less than ten (10) days from the date of Interstate Technical Services, Nashua, New procedure thereon prior to the issuance this notice, this action shall not be Hampshire; The Computer Merchant, of these determinations as prescribed in effective unless the agency finds that Norwell, Massachusetts; and Manpower 5 U.S.C. 553 and not providing for delay there is insufficient time to notify Technical, Portland, Maine, engaged in the in the effective date as prescribed in that bidders of the change and the finding is production of computer modules and box section, because the necessity to issue documented in the contract file. assemblies at SCI Systems, Inc. in August, current construction industry wage Maine who became totally or partially determinations frequently and in large Modifications to General Wage separated from employment on or after volume causes procedures to be Determination Decisions October 12, 1994, are eligible to apply for impractical and contrary to the public The number of decisions listed in the NAFTA–TAA under Section 250 of the Trade Act of 1974. interest. Government Printing Office document General wage determination entitled ‘‘General Wage Determinations Signed at Washington, D.C. this 7th day of decisions, and modifications and October 1996. Issued Under the Davis-Bacon and supersedeas decisions thereto, contain Related Acts’’ being modified are listed Russell T. Kile, no expiration dates and are effective by Volume and State. Dates of Program Manager, Policy and Reemployment from their date of notice in the Federal publication in the Federal Register are Services, Office of Trade Adjustment Register, or on the date written notice Assistance. in parentheses following the decisions is received by the agency, whichever is being modified. [FR Doc. 96–27443 Filed 10–24–96; 8:45 am] earlier. These decisions are to be used BILLING CODE 4510±30±M in accordance with the provisions of 29 Volume I CFR Parts 1 and 5. Accordingly, the Maine applicable decision, together with any ME960006 (March 15, 1996) Employment Standards Administration modifications issued, must be made a ME960007 (March 15, 1996) ME960008 (March 15, 1996) Wage and Hour Division part of every contract for performance of ME960010 (March 15, 1996) the described work within the ME960018 (March 15, 1996) Minimum Wages for Federal and geographic area indicated as required by ME960026 (March 15, 1996) Federally Assisted Construction; an applicable Federal prevailing wage ME960030 (March 15, 1996) General Wage Determination Decisions law and 29 CFR Part 5. The wage rates New Jersey and fringe benefits, notice of which is NJ960002 (March 15, 1996) General wage determination decisions published herein, and which are New York of the Secretary of Labor are issued in contained in the Government Printing NY960002 (March 15, 1996) accordance with applicable law and are NY960003 (March 15, 1996) Office (GPO) document entitled NY960004 (March 15, 1996) based on the information obtained by ‘‘General Wage Determinations Issued the Department of Labor from its study NY960007 (March 15, 1996) Under The Davis-Bacon And Related NY960008 (March 15, 1996) of local wage conditions and data made Acts,’’ shall be the minimum paid by NY960011 (March 15, 1996) available from other sources. They contractors and subcontractors to NY960012 (March 15, 1996) specify the basic hourly wage rates and laborers and mechanics. NY960013 (March 15, 1996) fringe benefits which are determined to Any person, organization, or NY960014 (March 15, 1996) be prevailing for the described classes of governmental agency having an interest NY960015 (March 15, 1996) laborers and mechanics employed on in the rates determined as prevailing is NY960016 (March 15, 1996) construction projects of a similar NY960017 (March 15, 1996) encouraged to submit wage rate and NY960018 (March 15, 1996) character and in the localities specified fringe benefit information for therein. NY960020 (March 15, 1996) consideration by the Department. NY960021 (March 15, 1996) The determinations in these decisions Further information and self- NY960022 (March 15, 1996) of prevailing rates and fringe benefits explanatory forms for the purpose of NY960025 (March 15, 1996) have been made in accordance with 29 submitting this data may be obtained by NY960031 (March 15, 1996) CFR Part 1, by authority of the Secretary writing to the U.S. Department of Labor, NY960032 (March 15, 1996) of Labor pursuant to the provisions of Employment Standards Administration, NY960033 (March 15, 1996) the Davis-Bacon Act of March 3, 1931, NY960037 (March 15, 1996) Wage and Hour Division, Division of NY960039 (March 15, 1996) as amended (46 Stat. 1494, as amended, Wage Determinations, 200 Constitution 40 U.S.C. 276a) and of other Federal NY960040 (March 15, 1996) Avenue, N.W., Room S–3014, NY960041 (March 15, 1996) statutes referred to in 29 CFR Part 1, Washington, D.C. 20210. NY960042 (March 15, 1996) Appendix, as well as such additional Withdrawn General Wage NY960044 (March 15, 1996) statutes as may from time to time be NY960045 (March 15, 1996) enacted containing provisions for the Determination Decision NY960048 (March 15, 1996) payment of wages determined to be This is to advise all interested parties NY960049 (March 15, 1996) prevailing by the Secretary of Labor in that the Department of Labor has NY960050 (March 15, 1996) accordance with the Davis-Bacon Act. withdrawn, General Wage NY960060 (March 15, 1996) The prevailing rates and fringe benefits Determination No. NE960057 dated NY960072 (March 15, 1996) NY960073 (March 15, 1996) determined in these decisions shall, in March 15, 1996. accordance with the provisions of the Agencies with construction projects Volume II foregoing statutes, constitute the pending, to which this wage decision West Virginia minimum wages payable on Federal and would have been applicable, should WV960002 (March 15, 1996) federally assisted construction projects utilize the project determination WV960003 (March 15, 1996) Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices 55321

WV960006 (March 15, 1996) related Acts are available electronically also state the issues to be addressed and Volume III by subscription to the FedWorld include a general description of the Bulletin Board System of the National evidence to be presented at the hearing. Alabama AL960008 (March 15, 1996) Technical Information Service (NTIS) of A request for a hearing must also state Florida the U.S. Department of Commerce at the issues to be addressed and include FL960015 (March 15, 1996) (703) 487–4630. a general description of the evidence to FL960017 (March 15, 1996) Hard-copy subscriptions may be be presented at the hearing. FL960049 (March 15, 1996) purchased from: Superintendent of ADDRESSES: All written comments and FL960053 (March 15, 1996) Documents, U.S. Government Printing request for a hearing (at least three FL960055 (March 15, 1996) Office, Washington, D.C. 20402, (202) copies) should be sent to the Pension Volume IV 512–1800. When ordering hard-copy and Welfare Benefits Administration, Illinois Office of Exemption Determinations, IL960001 (March 15, 1996) subscription(s), be sure to specify the State(s) of interest, since subscriptions Room N–5649, U.S. Department of IL960002 (March 15, 1996) Labor, 200 Constitution Avenue, N.W., IL960016 (March 15, 1996) may be ordered for any or all of the six Indiana separate volumes, arranged by State. Washington, D.C. 20210. Attention: IN960001 (May 17, 1996) Subscriptions include an annual edition Application No. stated in each Notice of IN960002 (March 15, 1996) (issued in January or February) which Proposed Exemption. The applications IN960003 (March 15, 1996) includes all current general wage for exemption and the comments IN960004 (March 15, 1996) determinations for the States covered by received will be available for public IN960005 (March 15, 1996) inspection in the Public Documents IN960006 (March 15, 1996) each volume. Throughout the remainder of the year, regular weekly updates are Room of Pension and Welfare Benefits IN960016 (March 15, 1996) Administration, U.S. Department of IN960017 (March 15, 1996) distributed to subscribers. Labor, Room N–5507, 200 Constitution IN960020 (March 15, 1996) Signed at Washington, D.C. this 18th day IN960039 (March 15, 1996) of October 1996. Avenue, N.W., Washington, D.C. 20210. IN960059 (May 24, 1996) Philip J. Gloss, Notice to Interested Persons IN960060 (August 2, 1996) Chief, Branch of Construction Wage IN960061 (August 2, 1996) Determinations. Notice of the proposed exemptions Volume V [FR Doc. 96–27153 Filed 10–24–96; 8:45 am] will be provided to all interested persons in the manner agreed upon by Iowa BILLING CODE 4510±27±M IA960003 (March 15, 1996) the applicant and the Department IA960019 (March 15, 1996) within 15 days of the date of publication IA960038 (March 15, 1996) Pension and Welfare Benefits in the Federal Register. Such notice Kansas Administration shall include a copy of the notice of KS960008 (March 15, 1996) proposed exemption as published in the KS960012 (March 15, 1996) [Application No. D±10240, et al.] Federal Register and shall inform KS960016 (March 15, 1996) interested persons of their right to Proposed Exemptions; Beall KS960018 (March 15, 1996) comment and to request a hearing KS960019 (March 15, 1996) Corporation KS960020 (March 15, 1996) (where appropriate). AGENCY: Pension and Welfare Benefits KS960021 (March 15, 1996) SUPPLEMENTARY INFORMATION: The KS960022 (March 15, 1996) Administration, Labor. proposed exemptions were requested in KS960023 (March 15, 1996) ACTION: Notice of Proposed Exemptions. applications filed pursuant to section Volume VI SUMMARY: This document contains 408(a) of the Act and/or section California notices of pendency before the 4975(c)(2) of the Code, and in CA960035 (March 15, 1996) Department of Labor (the Department) of accordance with procedures set forth in Nevada proposed exemptions from certain of the 29 CFR Part 2570, Subpart B (55 FR NV960001 (March 15, 1996) prohibited transaction restriction of the 32836, 32847, August 10, 1990). NV960005 (March 15, 1996) Effective December 31, 1978, section Washington Employee Retirement Income Security Act of 1974 (the Act) and/or the Internal 102 of Reorganization Plan No. 4 of WA960002 (March 15, 1996) 1978 (43 FR 47713, October 17, 1978) Wyoming Revenue Code of 1986 (the Code). WY960004 (March 15, 1996) transferred the authority of the Secretary Written Comments and Hearing of the Treasury to issue exemptions of General Wage Determination Requests the type requested to the Secretary of Publication All interested persons are invited to Labor. Therefore, these notices of General wage determinations issued submit written comments or request for proposed exemption are issued solely under the Davis-Bacon and related Acts, a hearing on the pending exemptions, by the Department. including those noted above, may be unless otherwise stated in the Notice of The applications contain found in the Government Printing Office Proposed Exemption, within 45 days representations with regard to the (GPO) document entitled ‘‘General Wage from the date of publication of this proposed exemptions which are Determinations Issued Under The Davis- Federal Register Notice. Comments and summarized below. Interested persons Bacon and Related Acts’’. This request for a hearing should state: (1) are referred to the applications on file publication is available at each of the 50 the name, address, and telephone with the Department for a complete Regional Government Depository number of the person making the statement of the facts and Libraries and many of the 1,400 comment or request, and (2) the nature representations. Government Depository Libraries across of the person’s interest in the exemption Beall Corporation 401(k) Profit Sharing the country. and the manner in which the person The general wage determinations would be adversely affected by the Plan (the Plan) Located in Portland, OR issued under the Davis-Bacon and exemption. A request for a hearing must [Application No. D–10240] 55322 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices

Proposed Exemption the Rivergate Industrial District in parcels that have closed subsequent to The Department is considering Portland, Oregon. The Land consists of the Appraisal were for $2.75 to $2.86 granting an exemption under the 4 acres of vacant land and is located per square foot. Accordingly, the authority of section 408(a) of the Act adjacent to property where SJC conducts applicant proposes to pay $2.75 per and section 4975(c)(2) of the Code and its operations. Mr. Beall represents that square foot for the Land, for a total of in accordance with the procedures set the Land has not been leased or used by $479,160. forth in 29 CFR Part 2570, Subpart B (55 any parties since the time of the The applicant represents that the FR 32836, 32847, August 10, 1990). If purchase. Land will be revalued at the time of the the exemption is granted, the The aggregate real estate taxes and proposed transaction, in order to restrictions of sections 406(a) and maintenance fees for 1975 through 1996 establish its fair market value. 7. Mr. Beall, as General Partner of 406(b)(1) and (b)(2) of the Act and the were $90,284.09. The applicant further Diamond Beall Development sanctions resulting from the application represents that these were the only costs Corporation, proposes to purchase the of section 4975 of the Code, by reason incurred by the Plan in carrying the Land from the Plan in a one-time cash of sections 4975(c)(1)(A) through (E) of property. transaction. The Plan will pay no real the Code shall not apply to the proposed 4. The Land was appraised as of estate commissions or other costs cash sale (the Sale) by the Plan of four January 1, 1996 (the Appraisal) by Karl associated with the sale of the Land. As acres of unimproved real property (the L. Lucke (Mr. Lucke), an independent of October 31, 1995, the Land Land) to the Diamond Beall real estate appraiser certified in the represented 6.7% of the Plan’s total Development Corporation, an Oregon State of Oregon. Mr. Lucke relied on the assets. The applicant represents that general partnership and party in interest Direct Sales Comparison (Market) considering the cost basis of the with respect to the Plan, provided that Approach exclusively and estimated property, the investment has not the following conditions are satisfied: that as of January 1, 1996, the fair performed well in that the Plan has (1) the Sale is a one-time transaction for market value of the Land was $2.50 per received an annual return of cash; (2) the Plan experiences no losses square foot, for a total of $436,000. The approximately 4.3%, based on its initial nor incurs any expenses as a result of Appraisal includes the following purchase price, subsequent annual cash the Sale; (3) the Plan receives in cash description of the Land and its outlays, and appraised value of the greater of $479,160, or the fair surrounding neighborhood: ‘‘* * * the $436,000. Carrying costs have recently market value of the Land as determined streets and railroad system are being totalled $5,000 to $7,000 per year. The at the time of the Sale; and (4) the terms expanded and construction activity has Plan has actively attempted to lease the of the Sale are no less favorable to the increased lately. The Rivergate property in the past but has been unable Plan than those it would have received Industrial District is a growing to do so. in similar circumstances when industrial area *** the location and available land make this a desirable It is represented by the applicant that negotiated at arm’s length with the proposed transaction is in the best unrelated third parties. place for industrial development and demand is growing for sites * * * the interest and protective of the Plan Summary of Facts and Representations subject property lies in the path of because it will allow the Plan to 1. The Plan is a defined contribution growth.’’ The Appraisal also states that increase its liquidity and diversify its profit sharing plan which is intended to the Rivergate District has experienced assets. 8. In summary, the applicant satisfy the qualification requirements of significant recent activity, and that represents that the transaction satisfies sections 401(a) and 401(k) of the Code. prices for Rivergate sites have increased the statutory criteria of section 408(a) of The Employer may make discretionary over the last few years. the Act because: (1) the proposed sale matching contributions and/or profit Because the Land is located on the lot will be a one-time cash transaction; (2) sharing contributions. The Plan has adjacent to SJC’s business facilities, Mr. the Plan will experience no losses nor approximately 136 participants and Lucke was asked to determine whether incur any expenses from the Sale; (3) beneficiaries who would be affected by there should be any premium value the Plan will receive in cash as the transaction. As of October 31, 1995, associated with the Land. In this regard, consideration for the Sale the greater of the fair market value of the net assets of Mr. Lucke states that there was $479,160, or the fair market value of the the Plan was $6,457,677. insufficient market data to support a Land as determined at the time of the 2. St. Johns Corporation (SJC) is a premium for an adjacent landowner or Sale; and (4) the terms of the Sale are holding company and the sole owner of related company with respect to the no less favorable to the Plan than those Beall Corporation (the Employer), proposed transaction. employer of a portion of Plan 5. The applicant provided information it would have received in similar participants. Beall Corporation is the received from the Port of Portland in circumstances when negotiated at arm’s- sole owner of several subsidiaries that August, 1996, regarding the Port’s recent length with unrelated third parties. employ the balance of Plan participants. list prices for the remainder of the FOR FURTHER INFORMATION CONTACT: Mr. The applicant is Jerry E. Beall, acting undeveloped Rivergate Industrial Gary H. Lefkowitz of the Department, as General Partner of the Diamond Beall District. Current list prices, and the telephone (202) 219–8881. (This is not Development Company. Mr. Beall is the prices of sales closing subsequent to the a toll-free number.) principal owner of SJC, which owns January 1996 Appraisal, reflect that Wayne Obstetrical Group, P.A. Money property adjacent to the Land. Mr. Beall prices for parcels similar to the Land Purchase Retirement Plan (the Wayne is also a trustee of the Plan. have increased 20 to 25% within the Plan); Pediatric Professional Associates, 3. On February 10, 1975, the Land past year, after several years of nominal P.A. Profit Sharing Plan (the Pediatric was purchased for the Plan as a long- appreciation. Plan); Physicians for Women, P.A. term real estate investment for $92,000 In addition, the Port’s information Profit-Sharing Plan and Trust (the from the Port of Portland, an unrelated shows that the three sales of comparable 1 Physicians Plan; collectively, the Plans) third party. The property is located in Located in Wayne, New Jersey Land violated any relevant provision of Part 4, 1 The Department expresses no opinion as to Subtitle B, of Title 1 of the Act, and no exemption [Application Nos. D–10262, D–10263, and D– whether the Plan’s acquisition and holding of the from such provisions is proposed herein. 10264] Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices 55323

Proposed Exemption Burns, Kenneth Garrett, Leonard T. total outstanding balances of the loans, The Department is considering Nicosia, and Arthur Suffin (each a 25% which will be a continuing requirement granting an exemption under the shareholder). As of December 31, 1994, for the duration of the loans. The authority of section 408(a) of the Act the Physicians Plan, a profit sharing Property will also be insured against and section 4975(c)(2) of the Code and plan, had approximately 15 participants casualty loss in an amount not less than in accordance with the procedures set and total assets of § 3,384,784. The the total principal amounts of the loans forth in 29 CFR Part 2570, Subpart B (55 trustees of the Pediatric Plan are the (plus accrued but unpaid interest), with FR 32836, 32847, August 10, 1990). If four owners, above, and Edwin J. Pear. the Plans as the named beneficiaries of the exemption is granted, the 2. An administrative exemption is the policy. restrictions of sections 406(a), 406(b)(1) requested to permit the Plans to make 4. The loans will each provide for an and (b)(2) of the Act and the sanctions loans totalling $530,000 to S & D, a New interest rate of 11% per annum and a resulting from the application of section Jersey partnership. The partners of S & term of 10 years, as evidenced by a 4975 of the Code, by reason of section D are as follows: Bernard Simon (a 19% promissory note. The notes will require 4975(c)(1)(A) through (E) of the Code, partner), Seymour J. Eisner (19%), Barry S & D to make monthly payments of shall not apply to the proposed loans Cohen (19%), Robert Natusch (12.5%), principal and interest on the loans, to be totalling $530,000 by the Plans to S & Lawrence May (12.5%) and a fully amortized over the 10-year term. D Associates (S & D), provided that the partnership known as 7 Oak Ridge The Plans will pay no fees nor other following conditions are satisfied: Partners (18%). The partners of 7 Oak expenses relating to the loans. (a) The terms and conditions of the Ridge Partners are as follows: Les Burns, Lakeland, an unrelated lender, has loans are at least as favorable to the Kenneth Garrett, Leonard Nicosia, held the current mortgage on the Plans as those the Plans could obtain in Edward Pear, Alvin Edelstein, Herbert Property for almost 10 years. The comparable arm’s length transactions Cole, Geraldine Nelson, Ian Rayman, mortgage has a balloon every five years, with unrelated parties; and Abraham Topchik (all equal which requires renegotiation. The last (b) At all times, the loans are secured partners). mortgage extension and modification by a first mortgage on certain real Specifically, the Wayne Plan will lend agreement will expire on January 1, property (the Property), which is duly $230,000, the Pediatric Plan will lend 1997. In keeping with the commercial recorded under New Jersey State law; $100,000, and the Physicians Plan will practices of other area banks, Lakeland (c) At all times, the fair market value lend $200,000. At all times, no more will not grant a ‘‘permanent mortgage’’ of the Property, as established by a than 25% of the assets of each lending on such commercial property. In a letter qualified, independent appraiser, equals Plan may be invested in the loans. It is dated November 30, 1995, Lakeland at least 150% of the total outstanding intended that S & D use the proceeds of states that if it were their policy to grant balances of the loans; the proposed loans to retire an S & D a permanent mortgage, they (d) At all times, no more than 25% of outstanding first mortgage held by would, under the then current financial the assets of each lending Plan are Lakeland State Bank (Lakeland) on the conditions, seek an interest rate of 11%. invested in the loans; Property, which S & D owns and which 5. Naskret, Selzer & Associates, P.A., (e) A qualified, independent fiduciary S & D currently leases to the sponsors Certified Public Accountants (Naskret, has determined that the loans are in the of the aforementioned Plans, among Selzer) represents in a letter from best interests of the Plans; and other tenants. As of November 30, 1995, Harold S. Selzer dated August 14, 1996 (f) At all times, the independent the outstanding balance on this that they will serve as an independent fiduciary enforces compliance with the mortgage was approximately $536,000, fiduciary to represent the interests of the terms and conditions of the loans and of which amount becomes due and Plans with respect to the proposed the exemption, including foreclosure on payable on January 1, 1997. loans. Naskret, Selzerit represents that it the Property in the event of default. 3. The loans will be secured by a first is unrelated to and independent of S & mortgage on the Property, to be duly D and the Plans’ sponsors and derives Summary of Facts and Representations recorded under New Jersey State law. less than 1% of its annual income from 1. Wayne Obstetrical Group, P.A. is a The Property, which consists of a two- S & D. Naskret, Selzer represents that it New Jersey corporation owned by story mixed-use building of 9936 sq. ft. has extensive experience as a fiduciary Seymour Eisner, Bernard Simon, Barry on 1.34 acres, is located at 7 Oak Ridge under the Act, that it is knowledgeable Cohen, and Steven Domnitz (each a Road, West Milford, New Jersey. The as to the subject loan transactions, and 25% shareholder). As of December 31, Property has office space on the first that it acknowledges and accepts its 1994, the Wayne Plan, a money floor that is currently being leased to the duties, responsibilities, and liabilities in purchase pension plan, had Plans’ sponsors and to other acting as a fiduciary with respect to the approximately nine participants and professionals, as well as eight one- Plans. total assets of $2,975,100. The trustees bedroom residential apartments on the 6. Naskret, Selzer has reviewed the of the Wayne Plan are Seymour Eisner, second floor. S & D will assign these terms and conditions of the loans and Bernard Simon, and Barry Cohen. leases and the excess net rentals determined that such terms and Pediatric Professional Associates, P.A. collectible thereunder to the Plans as conditions are at least as favorable to the is a New Jersey corporation owned by additional collateral for the loans. Plans as those the Plans could obtain in Alvin Edelstein, Abraham H. Topchik, The Property was appraised by Mr. comparable arm’s length transactions Herbert L. Cole, Israel I. Rayman, and Robert D. Clifford, MAI, RM of Value with unrelated parties, as evidenced by Geraldine Nelson (each a 20% Analysis Incorporated, an independent the terms required by Lakeland in their shareholder). As of July 31, 1995, the general real estate appraiser certified in letter dated November 30, 1995. The Pediatric Plan, a profit sharing plan, had the State of New Jersey. Relying on the loans will be secured by a first mortgage approximately 18 participants and total income approach to valuation, Mr. on the Property, which has been assets of $4,934,064. The trustees of the Clifford concluded that the fair market independently appraised to insure that Pediatric Plan are the five owners, value of the leased fee interest of the its fair market value equals at least above. Property was $800,000, as of December 150% of the total outstanding balances Physicians for Women, P.A. is a New 11, 1995. Thus the fair market value of of the loans. The leases of office and Jersey corporation owned by Les A. the Property equals at least 150% of the apartment units in the Property and the 55324 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices excess net rentals collectible thereunder or to request a hearing with respect to Sponsor, used his authority to act on will serve as additional collateral for the the proposed exemption. Comments and behalf of the Sponsor and directed loans. requests for a hearing are due within 40 AmeriStar Investments, a division of Naskret, Selzer represents that it days of the date of publication of this First American National Bank (the believes the proposed loans are in the notice in the Federal Register. Bank), to purchase a seven year, six best interest of the Plans and their FOR FURTHER INFORMATION CONTACT: Ms. percent convertible subordinated respective participants and Karin Weng of the Department, debenture issued by Citizens Bank for beneficiaries. Naskret, Selzer has telephone (202) 219–8881. (This is not $100,000 (the Debenture). At the time determined that the proposed loans are a toll-free number.) Dr. Boyd was also the Chairman of the appropriate for the Plans in light of the Board of Citizens Bank. AmeriStar Plans’ overall investment portfolios National Baptist Publishing Board Investments, as applicant for this because the loans will add a degree of Pension Plan (the Plan) Located in exemption, represents that at that time, Nashville, TN stability and liquidity to the Plans. Dr. Boyd owned approximately 42 Naskret, Selzer has also examined the [Application No. D–10283] percent of the outstanding common financial viability of S & D, based upon Proposed Exemption stock of Citizens Bank. Various family S & D’s tax returns for years 1994 and members owned an additional 11 1995, and concluded that S & D has the The Department is considering percent of Citizens Bank’s outstanding ability to repay the loans. S & D has granting an exemption under the common stock. timely made all monthly payments authority of section 408(a) of the Act The applicant further represents that during the approximately 10 years and section 4975(c)(2) of the Code and a representative of the Bank initially Lakeland has held the current mortgage in accordance with the procedures set advised against the investment, but on the Property. forth in 29 CFR Part 2570, Subpart B (55 indicated that the Sponsor could direct Finally, Naskret, Selzer will, at all FR 32836, 32847, August 10, 1990). If the Bank in writing to make the times, monitor and enforce S & D’s the exemption is granted the restrictions investment on behalf of the Plan. compliance with the terms and of sections 406(a) and 406(b)(1) and Pursuant to Dr. Boyd’s written conditions of the loans and of the (b)(2) of the Act and the sanctions instructions, AmeriStar Investments exemption, including foreclosure on the resulting from the application of section purchased the Debenture on behalf of Property in the event of default. 4975 of the Code, by reason of sections the Plan in June of 1986. In 1991, the 7. In summary, the applicants 4975(c)(1)(A) through (E) of the Code Bank discovered that Dr. Boyd had a represent that the proposed transactions shall not apply to the proposed cash significant ownership interest in satisfy the statutory criteria for an sale (the Sale) of common stock of Citizens Bank at the time of the Plan’s exemption under section 408(a) of the Citizens Savings Bank and Trust purchase of the Debenture, and Act for the following reasons: (a) the Company (the Stock) located in consequently that the purchase of the terms and conditions of the loans will Nashville, Tennessee, by the Plan to Debenture may have been a prohibited be at least as favorable to the Plans as AmeriStar Investments and Trust, a transaction.2 As of 1991, the Debenture’s those the Plans could obtain in division of First American National market value was approximately comparable arm’s length transactions Bank (AmeriStar Investments), Trustee $37,000, and AmeriStar Investments with unrelated parties; (b) at all times, of the Plan and party in interest with determined it was in the Plan’s best the loans will be secured by a first respect to the Plan; provided that: (1) interest to hold the Debenture until its mortgage on the Property, which is duly the Sale is a one-time transaction for value increased, rather than sell the recorded under New Jersey State law; (c) cash; (2) the Plan experiences no loss Debenture immediately for a loss. at all times, the fair market value of the nor incurs any expenses from the Sale; The Debenture paid interest at six Property, as established by a qualified, and (3) the Plan receives as percent in accordance with its terms independent appraiser, will equal at consideration from the Sale the greater until March 31, 1993 when it was least 150% of the total outstanding of the following amounts: (a) the fair converted into Citizens Bank common balances of the loans; (d) at all times, no market value of the Stock as of the date stock. Under its original terms, the more than 25% of the assets of each of the Sale plus interest at 6% for the Debenture was to be converted into lending Plan will be invested in the period March 31, 1993 through the date 1,100 shares of stock in June, 1993. loans; (e) Naskret, Selzer, acting as an the Stock is sold by the Plan; or (b) the Citizens Bank offered to convert the independent fiduciary for the Plans, has total cost of the investment, $100,000, Debenture earlier than June, with a determined that the loans are in the best plus interest at 6% for the period March conversion bonus of 110 shares. interests of the Plans; and (f) at all 31, 1993 through the date the Stock is Accordingly, as of March 31, 1993, the times, the independent fiduciary will sold by the Plan. Debenture was converted into 1,210 enforce compliance with the terms and Summary of Facts and Representations shares of Stock. conditions of the loans and of the 3. The applicant represents that an exemption, including foreclosure on the 1. The Plan is a defined benefit plan active market does not currently exist Property in the event of default. sponsored by the National Baptist for the Stock and no dividends have Publishing Board (the Sponsor). As of Notice to Interested Persons been paid on the Stock. According to a March 31, 1996, the estimated number valuation as of December 31, 1993, Notice of the proposed exemption of Plan participants and beneficiaries prepared on July 21, 1994, by Mercer shall be given to all interested persons was 93. As of July 31, 1995, total assets Capital, an independent valuation firm, by personal delivery or first-class mail of the Plan equaled $1,387,496, with within 10 days of the date of publication approximately .35% of total Plan assets 2 The Department notes that the decision to of the notice of pendency in the Federal as of that date invested in the Stock, purchase the Debenture is governed by the fiduciary Register. Such notice shall include a based on the fair market value responsibility requirements of Part 4, Subtitle B, copy of the notice of proposed conclusion of an appraisal conducted as Title I of the Act. The Department is not proposing relief herein for any violations of Part 4 of Title I exemption as published in the Federal of July 21, 1994. of the Act which may have arisen as a result of the Register and shall inform interested 2. On or about May 27, 1986, Dr. T.B. acquisition and holding by the Plan of the persons of their right to comment and/ Boyd III, President and CEO of the Debenture, and subsequently, the Stock. Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices 55325 the fair market value of the Stock was a fiduciary or other party in interest of Labor (the Department) from certain of $5.60 per share. Based on that valuation, disqualified person from certain other the prohibited transaction restrictions of the Plan’s total investment in the Stock provisions of the Act and/or the Code, the Employee Retirement Income was worth $6,776. including any prohibited transaction Security Act of 1974 (the Act) and/or 4. The Bank desires to enter into the provisions to which the exemption does the Internal Revenue Code of 1986 (the proposed transaction in order to protect not apply and the general fiduciary Code). the participants in the Plan from the responsibility provisions of section 404 Notices were published in the Federal risks of investment loss associated with of the Act, which among other things Register of the pendency before the the Stock. The applicant represents that require a fiduciary to discharge his Department of proposals to grant such the best interest of the plan and its duties respecting the plan solely in the exemptions. The notices set forth a participants and beneficiaries are interest of the participants and summary of facts and representations protected by disposing of the Stock for beneficiaries of the plan and in a contained in each application for a sales price in excess of its fair market prudent fashion in accordance with exemption and referred interested value and by restoring certain lost section 404(a)(1)(b) of the act; nor does persons to the respective applications earnings to the Plan. In this regard, it affect the requirement of section for a complete statement of the facts and AmeriStar proposes to purchase the 401(a) of the Code that the plan must representations. The applications have Stock 3 for the greater of the following operate for the exclusive benefit of the been available for public inspection at amounts: (a) the fair market value of the employees of the employer maintaining the Department in Washington, D.C. The Stock as of the date of the Sale, plus the plan and their beneficiaries; notices also invited interested persons interest at 6% for the period March 31, (2) Before an exemption may be to submit comments on the requested 1993 through the date the Stock is sold granted under section 408(a) of the Act exemptions to the Department. In by the Plan; or (b) the total cost of the and/or section 4975(c)(2) of the Code, addition the notices stated that any investment, $100,000, plus interest at the Department must find that the interested person might submit a 6% for the period March 31, 1993 exemption is administratively feasible, written request that a public hearing be through the date the Stock is sold by the in the interests of the plan and of its held (where appropriate). The Plan. participants and beneficiaries and applicants have represented that they 5. In summary, the applicant protective of the rights of participants have complied with the requirements of represents that the proposed transaction and beneficiaries of the plan; the notification to interested persons. will satisfy the criteria for an exemption (3) The proposed exemptions, if No public comments and no requests for under section 408(a) of the Act for the granted, will be supplemental to, and a hearing, unless otherwise stated, were following reasons: (1) the Sale is a one- not in derogation of, any other received by the Department. time transaction for cash; (2) the Plan provisions of the Act and/or the Code, The notices of proposed exemption experiences no loss nor incurs any including statutory or administrative were issued and the exemptions are expenses from the Sale; and (3) the Plan exemptions and transitional rules. being granted solely by the Department receives as consideration from the Sale Furthermore, the fact that a transaction because, effective December 31, 1978, the greater of the fair market value of the is subject to an administrative or section 102 of Reorganization Plan No. Stock as of the date of the Sale, plus statutory exemption is not dispositive of 4 of 1978 (43 FR 47713, October 17, interest at 6% for the period March 31, whether the transaction is in fact a 1978) transferred the authority of the 1993 through the date the Stock is sold prohibited transaction; and Secretary of the Treasury to issue by the Plan; or the total cost of the (4) The proposed exemptions, if exemptions of the type proposed to the investment, $100,000, plus interest at granted, will be subject to the express Secretary of Labor. 6% for the period March 31, 1993 condition that the material facts and Statutory Findings through the date the Stock is sold by the representations contained in each Plan. application are true and complete, and In accordance with section 408(a) of that each application accurately NOTICE TO INTERESTED PERSONS: the Act and/or section 4975(c)(2) of the Notice describes all material terms of the will be distributed to interested persons Code and the procedures set forth in 29 transaction which is the subject of the CFR Part 2570, Subpart B (55 FR 32836, within 30 days of the date of publication exemption. of this Notice in the Federal Register. 32847, August 10, 1990) and based upon Comments and requests for a hearing are Signed at Washington, DC, this 22nd day the entire record, the Department makes due within 60 days of the publication of October, 1996. the following findings: date of this Notice. Ivan Strasfeld, (a) The exemptions are Director of Exemption Determinations, administratively feasible; FOR FURTHER INFORMATION CONTACT: Mr. Pension and Welfare Benefits Administration, (b) They are in the interests of the Gary H. Lefkowitz of the Department, Department of Labor. plans and their participants and telephone (202) 219–8881. (This is not [FR Doc. 96–27441 Filed 10–24–96; 8:45 am] beneficiaries; and a toll-free number.) BILLING CODE 4510±29±P (c) They are protective of the rights of General Information the participants and beneficiaries of the plans. The attention of interested persons is [Prohibited Transaction Exemption 96±80; directed to the following: Exemption Application No. D±10255, et al.] Lehman Brothers, Inc. (Lehman) (1) The fact that a transaction is the Located in New York, New York subject of an exemption under section Grant of Individual Exemptions; Lehman Brothers, Inc. [Prohibited Transaction Exemption 96–80; 408(a) of the Act and/or section Exemption Application No. D–10255] 4975(c)(2) of the Code does not relieve AGENCY: Pension and Welfare Benefits Exemption Administration, Labor. 3 AmeriStar is also attempting to sell the Stock to The restrictions of section 406(a) of an unrelated third party. If the sales price is less ACTION: Grant of individual exemptions. than $100,000 plus interest at 6% from March 31, the Act and the sanctions resulting from 1993 to the date of the Sale, AmeriStar will make SUMMARY: This document contains the application of section 4975 of the up the difference to the Plan. exemptions issued by the Department of Code, by reason of section 4975(c)(1) (A) 55326 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices through (D) of the Code, shall not apply the Code, shall not apply to the loan of employees of the employer maintaining to the sales of collateralized guaranteed $1,620,246.56 (the Loan) to the Plan the plan and their beneficiaries; investment contracts (CGICs) by from Rexam, Inc. (the Employer) with (2) These exemptions are Lehman to employee benefit plans (the respect to the Guaranteed Investment supplemental to and not in derogation Plans), provided the following Contract No. 63217 (the GIC) issued by of, any other provisions of the Act and/ conditions are satisfied: (a) The decision Confederation Life Insurance Company or the Code, including statutory or to purchase a CGIC will be made by a (Confederation) and the Plan’s potential administrative exemptions and fiduciary of a Plan who is independent repayment of the Loan upon the receipt transactional rules. Furthermore, the of Lehman; (b) Lehman will provide the by the Plan of payments under the GIC; fact that a transaction is subject to an independent fiduciary with audited and provided the following conditions are administrative or statutory exemption is unaudited statements of its financial satisfied: not dispositive of whether the condition at the time of the purchase of (A) All terms and conditions of the transaction is in fact a prohibited the CGIC and subsequently as issued; (c) transactions are no less favorable to the transaction; and Lehman will transfer to a tri-party Plan than those that the Plan could (3) The availability of these custodial account, under the exclusive obtain in arm’s-length transactions with exemptions is subject to the express direction of a Plan’s trustees, securities unrelated parties; condition that the material facts and selected by the Plan with a market value (B) No interest payments or other representations contained in each equal to at least 102% of the CGIC’s expenses are paid by the Plan in application accurately describes all purchase price; (d) such securities will connection with the Loan and its material terms of the transaction which be marked to market on a daily basis, repayment; is the subject of the exemption. and Lehman will be required to (C) The Loan will be repaid only from Signed at Washington, D.C., this 22nd day maintain the market value of the proceeds paid to the Plan by of October, 1996. securities at the agreed-upon level of at Confederation, its successors, or by any Ivan Strasfeld, least 102% of the CGIC’s purchase price; other third-party; Director of Exemption Determinations, (e) a Plan will receive daily reports (D) Repayment of the Loan will be Pension and Welfare Benefits Administration, describing the securities on deposit and waived to the extent that the Loan U.S. Department of Labor. their market value, and monthly reports exceeds the proceeds from the GIC; [FR Doc. 96–27442 Filed 10–24–96; 8:45 am] describing all activity with respect to (E) If total proceeds received by the BILLING CODE 4510±29±P the CGIC, including accrued interest; (f) Plan with respect to the GIC exceed the a Plan will have full recourse against amount of the Loan, the excess will be Lehman for all obligations and expenses credited to the respective accounts of owed to it by Lehman; (g) Lehman will NATIONAL AERONAUTICS AND the participants in proportion to the SPACE ADMINISTRATION be responsible for all legal fees and relative investment of each account in expenses associated with any failure to the GIC on June 25, 1996; and [Notice 96±132] fulfill its obligations under a CGIC; (h) (F) A qualified, independent fiduciary a Plan will have an unqualified right to represented the Plan at the execution of Notice of Agency Report Forms Under the return of its principal and accrued the Loan and will continue to represent OMB Review interest no later than the conclusion of the interests of the Plan throughout the AGENCY: National Aeronautics and the stated term of the CGIC; (i) if a Plan duration and repayment of the Loan. Space Administration (NASA). requires a termination of a CGIC prior to EFFECTIVE DATE: The exemption is maturity to pay benefit responsive ACTION: Notice of Agency Report Forms effective as of June 25, 1996. payments, no market value adjustment Under OMB Review. will be imposed; and (j) Lehman will FOR FURTHER INFORMATION CONTACT: Mr. C.E. Beaver of the Department, SUMMARY: In accordance with the market CGICs only to Plans with assets Paperwork Reduction Act of 1995, this having an aggregate market value of at telephone (202) 219–8881. (This is not a toll-free number.) notice announces NASA’s intention to least $50 million. request an extension of the current For a more complete statement of the General Information NASA Safety Reporting System (NSRS) facts and representations supporting the The attention of interested persons is forms. The NSRS was established in Department’s decision to grant this response to the Report of the exemption, refer to the notice of directed to the following: (1) The fact that a transaction is the Presidential Commission on the Space proposed exemption published on Shuttle Challenger Accident. The NSRS August 27, 1996 at 61 FR 44087. subject of an exemption under section 408(a) of the Act and/or section forms provide NASA and contractor FOR FURTHER INFORMATION CONTACT: Gary 4975(c)(2) of the Code does not relieve personnel confidential, responsive H. Lefkowitz of the Department, a fiduciary or other party in interest or means of reporting safety concerns/ telephone (202) 219–8881. (This is not disqualified person from certain other hazards to upper management for a toll-free number.) provisions to which the exemptions do resolution. The form is the best means Rexam Retirement Savings Plan (the not apply and the general fiduciary of ensuring reporter confidentiality. Plan) Located In Charlotte, North responsibility provisions of section 404 DATES: Written comments and Carolina of the Act, which among other things recommendations on the proposal for the collection of information should be [Prohibited Transaction Exemption 96–81; require a fiduciary to discharge his Exemption Application No. D–10294] duties respecting the plan solely in the received on or before December 24, interest of the participants and 1996. Exemption beneficiaries of the plan and in a ADDRESSES: All comments should be The restrictions of sections 406(a) and prudent fashion in accordance with addressed to Bill Comer, Code QS, 406(b)(1) and (b)(2) of the Act and the section 404(a)(1)(B) of the Act; nor does National Aeronautics and Space sanctions resulting from the application it affect the requirement of section Administration, Washington, DC 20546– of section 4975 of the Code, by reason 401(a) of the Code that the plan must 0001. All comments will become a of section 4975(c)(1)(A) through (E) of operate for the exclusive benefit of the matter of public record and will be Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices 55327 summarized in NASA’s request for mission and to develop a set of criteria Thursday, November 7, 1996 Office of Management and Budget under which the performance of the 8:30 a.m.–8:45 a.m.: Opening Remarks (OMB) approval. NSRRC could be evaluated in the future; by the ACRS Chairman FOR FURTHER INFORMATION CONTACT: (2) to discuss the roles of the NSRRC Bessie B. Berry, NASA Reports Officer, and the Advisory Committee for Reactor (Open)—The ACRS Chairman will (202) 358–1368. Safeguards (ACRS) to determine the make opening remarks regarding conduct of the meeting and comment Reports areas of common interest of the two Committees; and (3) to discuss potential briefly regarding items of current Title: NASA Safety Reporting System overlap of on-going activities of the interest. During this session, the Committee will discuss priorities for (NSRS). ACRS and NSRRC Committee and preparation of ACRS reports. OMB Number: 2700–0063. coordinate these activities to ensure that Type of Review: Extension. areas of joint interest are supportive and 8:45 a.m.–10:45 a.m.: Proposed Rule on Need and Uses: Forms will be used by complimentary and not duplicative. As Steam Generator Integrity NASA employees and NASA contractor time permits, a discussion will be employees to voluntarily and (Open)—The Committee will hear initiated on the core technical confidentially report to an independent presentations by and hold discussions competence to be maintained by the agent any safety concerns or hazards with representatives of the NRC staff, pertaining to any NASA program or NRC’s Office of Research staff. Nuclear Energy Institute (NEI), and project. Participants in parts of the discussion Electric Power Research Institute (EPRI) Affected Public: Individuals or will include senior NRC staff and other regarding the proposed rule on steam households, Business or other for-profit, RES technical staff as necessary. generator integrity and an associated regulatory guide. Federal Government. Members of the public may file Estimated Number of Respondents: Other interested parties will written statements regarding any matter participate, as appropriate. 75. to be discussed at the meeting. Members Responses Per Respondent: 1. of the public may also make requests to 11:00 a.m.–12:15 p.m.: Risk-Based Estimated Annual Responses: 19. speak at the meeting, but permission to Analysis of Reactor Operating Estimated Hours Per Request: .25. speak will be determined by the Experience Estimated Annual Burden Hours: 19. Committee chairperson in accordance (Open)—The Committee will hear Frequency of Report: As required. with procedures established by the presentations by and hold discussions Dated: October 18, 1996. Committee. A verbatim transcription with representatives of the NRC staff Russell S. Rice, will be made of the NSRRC meeting and regarding the staff activities associated Director, IRM Division. a copy of the transcript will be placed with risk-based analysis of reactor [FR Doc. 96–27369 Filed 10–24–96; 8:45 am] in the NRC’s Public Document Room in operating experience, accident sequence BILLING CODE 7510±01±M Washington, DC. precursor program, development of risk- based performance indicators, and Any inquiries regarding this notice or related matters. any subsequent changes in the status NUCLEAR REGULATORY Representatives of the nuclear and schedule of the meeting, may be industry will participate, as appropriate. COMMISSION made to the Designated Federal Officer, 1:15 p.m.–3:15 p.m.: Revised Source Nuclear Safety Research Review Dr. Jose Luis M. Cortez (telephone: 301– Term for Operating Reactors Committee 415–6596), between 8:15 am and 5:00 pm. (Open)—The Committee will hear AGENCY: Nuclear Regulatory Dated at Rockville, Maryland this 21st day presentations by and hold discussions Commission. of October, 1996. with representatives of the NRC staff, ACTION: Notice of meeting. NEI, and Entergy Operations, Inc., For the Nuclear Regulatory Commission. regarding the use of revised source term The Nuclear Safety Research Review Andrew L. Bates, for operating plants and the NRC staff’s Committee (NSRRC) will hold its next Federal Advisory Committee Management proposed approach for reviewing meeting on November 14–15, 1996. The Officer. applications for license amendments. location of the meeting will be in Room [FR Doc. 96–27412 Filed 10–24–96; 8:45 am] Other interested parties will T–10A1, Two White Flint North BILLING CODE 7590±01±P participate, as appropriate. (TWFN) Building, 11545 Rockville Pike, Rockville, MD and will be held from 3:30 p.m.–4:30 p.m.: Emergency 1:00 p.m. to 5:00 p.m. on the 14th and Advisory Committee on Reactor Planning for Advanced Reactors from 9:30 a.m. to 5:30 p.m. on the 15th. Safeguards; Meeting Notice (Open)—The Committee will hear The meeting will be held in presentations by and hold discussions accordance with the requirements of the In accordance with the purposes of with representatives of the NRC staff Federal Advisory Committee Act Sections 29 and 182b. of the Atomic regarding a simplified approach to (FACA) and will be open to public Energy Act (42 U.S.C. 2039, 2232b), the emergency planning for advanced attendance. The NSRRC provides advice Advisory Committee on Reactor reactors. to the Director of the Office of Nuclear Safeguards will hold a meeting on Representatives of the nuclear Regulatory Research (RES) on matters of November 7–9, 1996, in Conference industry will participate, as appropriate. overall management importance in the Room T–2B3, 11545 Rockville Pike, direction of the NRC’s program of 4:30 p.m.–7:00 p.m.: Preparation of Rockville, Maryland. The date of this nuclear safety research. The main ACRS Reports meeting was previously published in purpose of this meeting will be: (1) to (Open)—The Committee will discuss evaluate the value and contributions of the Federal Register on Monday, proposed ACRS reports on matters the NSRRC in carrying out the NRC’s November 27, 1995 (60 FR 58393). considered during this meeting as well 55328 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices as a proposed report on plant-specific 1:30 p.m.–7:00 p.m.: Preparation of clearly unwarranted invasion of application of Safety Goals. ACRS Reports personal privacy per 5 U.S.C. 552b(c)(6). Further information regarding topics Friday, November 8, 1996 (Open)—The Committee will continue its discussion of the proposed ACRS to be discussed, whether the meeting 8:30 a.m.–8:35 a.m.: Opening Remarks reports on matters considered during has been cancelled or rescheduled, the by the ACRS Chairman this meeting as well as a proposed Chairman’s ruling on requests for the (Open)—The ACRS Chairman will report on plant-specific application of opportunity to present oral statements make opening remarks regarding Safety Goals. and the time allotted therefor can be conduct of the meeting. obtained by contacting Mr. Sam Saturday, November 9, 1996 Duraiswamy, Chief, Nuclear Reactors 8:35 a.m.–9:00 a.m.: Future ACRS 8:30 a.m.–12:30 p.m.: Preparation of Branch (telephone 301/415–7364), Activities ACRS Reports between 7:30 a.m. and 4:15 p.m. EDT. (Open)—The Committee will discuss ACRS meeting notices, meeting (Open)—The Committee will continue transcripts, and letter reports are now recommendations of the Planning and discussion of proposed ACRS reports on Procedures Subcommittee regarding available on FedWorld from the ‘‘NRC matters considered during this meeting MAIN MENU.’’ Direct Dial Access items proposed for consideration by the as well as a proposed report on plant- full Committee during future meetings. number to FedWorld is (800) 303–9672 specific application of Safety Goals. or ftp.fedworld. These documents and 9:00 a.m.–9:15 a.m.: Reconciliation of 12:30 p.m.–1:30 p.m.: Strategic Planning the meeting agenda are also available for ACRS Comments and downloading or reviewing on the Recommendations (Open)—The Committee will continue its discussion of items of significant internet at http://www.nrc.gov/ (Open)—The Committee will discuss importance to NRC, including ACRSACNW. responses from the NRC Executive rebaselining of the Committee activities Dated: October 22, 1996. Director for Operations (EDO) to for FY 97. Andrew L. Bates, comments and recommendations Procedures for the conduct of and Advisory Committee Management Officer. included in recent ACRS reports. The participation in ACRS meetings were EDO responses are expected to be [FR Doc. 96–27413 Filed 10–24–96; 8:45 am] published in the Federal Register on BILLING CODE 7590±01±P provided in writing to the ACRS prior October 1, 1996 (61 FR 51310). In to the meeting. accordance with these procedures, oral 9:15 a.m.–9:45 a.m.: Report of the or written statements may be presented SECURITIES AND EXCHANGE Planning and Procedures Subcommittee by members of the public, electronic COMMISSION recordings will be permitted only (Open/Closed)—The Committee will during the open portions of the meeting, [Rel. No. IC±22291; 812±10218] hear a report of the Planning and and questions may be asked only by Procedures Subcommittee on matters members of the Committee, its First Trust Special Situations Trust and related to the conduct of ACRS consultants, and staff. Persons desiring Nike Securities L.P.; Notice of business, and organizational and to make oral statements should notify Application personnel matters relating to ACRS. A portion of this session may be Mr. Sam Duraiswamy, Chief, Nuclear October 21, 1996. closed to discuss organizational and Reactors Branch, at least five days AGENCY: Securities and Exchange personnel matters that relate solely to before the meeting, if possible, so that Commission (‘‘SEC’’). appropriate arrangements can be made the internal personnel rules and ACTION: Notice of application for to allow the necessary time during the practices of this Advisory Committee, exemption under the Investment meeting for such statements. Use of still, and matters the release of which would Company Act of 1940 (the ‘‘Act’’). constitute a clearly unwarranted motion picture, and television cameras invasion of personal privacy. during this meeting may be limited to APPLICANTS: First Trust Special selected portions of the meeting as Situations Trust and Nike Securities 10:00 a.m.–11:00 a.m.: Nitrogen Bubble determined by the Chairman. L.P. in the Reactor Coolant System at the Information regarding the time to be set RELEVANT ACT SECTIONS: Order requested Haddam Neck Nuclear Power Plant aside for this purpose may be obtained under section 6(c) of the Act for an (Open)—The Committee will hear by contacting the Chief of the Nuclear exemption from section 12(d)(1)(F)(ii) of presentations by and hold discussions Reactors Branch prior to the meeting. In the Act. view of the possibility that the schedule with representatives of the NRC staff SUMMARY OF APPLICATION: Applicants regarding the findings and for ACRS meetings may be adjusted by the Chairman as necessary to facilitate request an order that would permit recommendations of the Augmented series of the Trust (each a ‘‘Series’’ or Inspection Team which investigated the the conduct of the meeting, persons planning to attend should check with ‘‘Trust Series’’), to offer units to the August 28, 1996 event at the Haddam public with a sales load that exceeds the Neck Nuclear Power Plant that involved the Chief of the Nuclear Reactors Branch if such rescheduling would result in 1.5% sales load limitation of section creation of a nitrogen bubble in the 12(d)(1)(F)(ii) of the Act. reactor coolant system. major inconvenience. Representatives of the licensee will In accordance with Subsection 10(d) FILING DATE: The application was filed participate, as appropriate. P.L. 92–463, I have determined that it is on June 24, 1996 and amended on necessary to close portions of this September 5, 1996. 11:00 a.m.–12:30 p.m.: Annual ACRS meeting noted above to discuss matters HEARING OR NOTIFICATION OF HEARING: An Report to Congress that relate solely to the internal order granting the application will be (Open)—The Committee will discuss personnel rules and practices of this issued unless the SEC orders a hearing. the format and content of the annual Advisory Committee per 5 U.S.C. Interested persons may request a ACRS report to Congress on the NRC 552b(c)(2), and to discuss matters the hearing by writing to the SEC’s Safety Research Program. release of which would constitute a Secretary and serving applicants with a Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices 55329 copy of the request, personally or by securities or, if unavailable, the closing 2. Section 12(d)(1)(F) provides that mail. Hearing requests should be asking prices of the securities. section 12(d)(1) shall not apply to received by the SEC by 5:30 p.m. on 3. Each underlying Fund may be securities purchased or otherwise November 15, 1996, and should be registered as an open-end investment acquired by a registered investment accompanied by proof of service on company, a closed-end investment company if immediately after the applicants, in the form of an affidavit or, company, or a unit investment purchase or acquisition not more than for lawyers, a certificate of service. company, or a unit investment trust. In 3% of the total outstanding stock of the Hearing requests should state the nature addition, an underlying Fund may be an acquired company is owned by the of the writer’s interest, the reason for the ‘‘Exchange Fund.’’ An exchange Fund acquiring company and the acquiring request, and the issues contested. may be registered as an open-end company does not offer or sell any Persons who wish to be notified of a investment company or a unit security issued by it which includes a hearing may request notification by investment trust, but it has received sales load of more than 1.5%. In writing to the SEC’s Secretary. exemptive relief to sell its shares at addition, no issuer of any security ADDRESSES: Secretary, SEC, 450 Fifth ‘‘negotiated prices’’ on an exchange in purchased or acquired by the acquiring Street, N.W., Washington, D.C. 20549. the same manner as other equity company shall be obligated to redeem Applicants, 1001 Warrenville Road, securities.1 such security in an amount exceeding Lisle, Illinois 60532. 4. Simultaneously with the deposit of 1% of such issuer’s total outstanding securities during any period of less than FOR FURTHER INFORMATION CONTACT: Fund shares into a Trust Series, the 30 days. Applicants request relief under Sarah A. Buescher, Staff Attorney, at Trustee will deliver to the Sponsor section 6(c) of the Act from the 1.5% (202) 942–0573, or Alison E. Baur, registered certificates for units (‘‘Units’’) sales load limitation of section Branch chief, at (202) 942–0564 that represent ownership of the Trust 12(d)(1)(F)(ii) so that a Trust Series can (Division of Investment Management, Series. During the initial public offering, offer Units subject to a sales load of Office of Investment Company the Units will be offered at prices based greater than 1.5% of the public offering Regulation). on the aggregate underlying value of the securities deposited in a Trust Series, price. SUPPLEMENTARY INFORMATION: The plus a sales charge. The sales charge 3. Section 6(c) provides that the SEC following is a summary of the 2 may exempt any person or transaction application. The complete application (either a front end, deferred sales load, or a combination thereof) shall not, from any provision of the Act if such may be obtained for a fee at the SEC’s exemption is necessary or appropriate Public Reference Branch. when aggregated with any sales charge or service fees paid by the Trust Series in the public interest and consistent Applicants’ Representations with respect to securities of the with the protection of investors and the purposes fairly intended by the policy 1. The Trust is a registered unit underlying Funds, exceed the limits set forth in Rule 2830(d) of the NASD’s and provisions of the Act. Applicants investment trust. Each Trust Series also believe that the requested order satisfies will be a unit investment trust, and will Conduct Rules. Applicants state that the Trust Series may incur customary this standard. be similar but separate and designated 4. Applicants argue that section brokerage commissions associated with by a different Series number. Applicants 12(d)(1) is intended to mitigate or purchasing securities on the secondary request relief of behalf of the Trust and eliminate abuses that might arise when market. No Trust Series will invest in an certain subsequent Trust Series. Nike one investment company acquires underlying Fund with a rule 12b–1 plan Securities L.P. is the sponsor for each shares of another investment company. unless the Fund’s rule 12b–1 fees do not Trust Series (the ‘‘Sponsor’’). Each These abuses include: (a) the layering of Series will be created under state law exceed a maximum annual rate of .25% sales charges, advisory fees, and pursuant to a trust agreement which of the respective Fund’s average daily administrative costs; (b) the imposition will contain information specific to that net assets. of undue influence by the acquiring Series and which will incorporate by Applicant’s Legal Analysis fund over the acquired funds through reference a master trust agreement the threat of large scale redemptions; (c) 1. Section 12(d)(1)(A) of the Act between the Sponsor and a financial the acquisition by the acquiring fund of provides that no registered investment institution that satisfies the criteria in voting control of the acquired company; company may acquire securities issued section 26(a) of the Act (the ‘‘Trustee’’). and (d) the creation of a complex by another investment company if such The trust agreement and the master trust pyramidal structure that may be securities represent more than 3% of the agreement are referred to collectively as confusing to investors. Applicants do the ‘‘Trust Agreement.’’ total outstanding voting stock of the not believe that these abuses are present 2. Each Series will contain a portfolio acquired company, more than 5% of the in their proposed trust of funds of shares of investment companies or value of the total assets of the acquiring structure. series thereof (the ‘‘Funds’’) that are not company, or if securities issued by the 5. Applicants state that the structure affiliated with any of the applicants. acquired company and all other of the Trust Series will not result in Each Series may invest either in only investment companies have an aggregate excessive fees. Each Trust Series, as a one type of investment company or in value in excess of 10% of the value of unit investment trust, has an a combination of the various types of the total assets of the acquiring unmanaged portfolio and, therefore, investment companies. The shares of company. does not assess advisory fees. the underlying Funds will be deposited Unitholders would bear their portion of in each Trust Series at net asset value, 1 See, e.g., Foreign Fund Inc., Investment advisory fees changed by the underlying Company Act Release Nos. 21737 (Feb. 6, 1996) or if the Fund shares are listed on a (notice) and 21803 (Mar. 5, 1996) (order); and SPDR Funds for services rendered by each national securities exchange or traded Trust, Investment Company Act Release Nos. 18959 Fund’s respective investment adviser. on the Nasdaq National Market System (Sept. 17, 1992) (notice) and 19055 (Oct. 26, 1992) Applicants contend that there will be no (‘‘Nasdaq-NMS’’), at ‘‘market value.’’ (order). overlapping of sales charges or 2 The Trust received exemptive relief to assess a Market value will be determined by an deferred sales load. See Nike Securities L.P., et al., distribution fees. While each Trust evaluator, and generally will be based Investment Company Act Release Nos. 21008 (Apr. Series will charge a sales load, the on the closing sale prices of the 14, 1995) (notice) and 21059 (May 10, 1995) (order). Sponsor will deposit the Fund shares in 55330 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices the Trust Series at net asset value, or if security holders with regard to the to participate in a diversified portfolio shares of the Funds are traded on an voting of all proxies with respect to of investment company shares in one exchange or Nasdaq-NMS, at their such security and to vote such proxies package and at one sales load. market value. In addition, each Trust only in accordance with such Applicants’ Conditions Series, as a unit investment trust, does instructions, or to vote the shares held not charge a rule 12b–1 fee, and no by it in the same proportion as the vote Applicants agree that the order Trust Series would invest in a Fund of all other holders of the security. granting the requested relief shall be with a rule 12b–1 plan unless the Fund 9. Applicants believe that the concern subject to the following conditions: limits its rule 12b–1 fee to a maximum about undue complexity in its 1. Each Trust Series will comply with annual rate of .25% of the Fund’s arrangement is addressed by its section 12(d)(1)(F) in all respects except average daily net assets. Applicants also condition that each Trust Series will not for the sales load limitation of section have agreed as a condition to relief that invest in an underlying Fund that, at the 12(d)(1)(F)(ii). any sales charge assessed with respect time of acquisition, owns securities of 2. Any sales charges or service fees to the Units of a Trust Series, when any other investment company in excess charged with respect to Units of a Trust aggregated with any sales charges and of the limits in section 12(d)(1)(A). If Series, when aggregated with any sales service fees paid by the Trust Series subsequent to a Trust Series’ acquisition charges or service fees paid by the Trust with respect to securities of the of Fund shares, the Fund acquires Series with respect to securities of the underlying Funds, shall not exceed the securities of other investment underlying Funds, shall not exceed the limits set forth in Rules 2830(d) of the companies in excess of section limits set forth in Rule 2830(d) of the Conduct Rules of the NASD. As a result, 12(d)(1)’s limits, the Trust Series will NASD’s Conduct Rules. the aggregate sales charges will not not be required to divest itself of its 3. No Trust Series will acquire exceed the limit that otherwise lawfully holdings. Applicants argue that because securities of an underlying Fund which, could be charged at any single level. the underlying Funds are not affiliated at the time of acquisition, owns 6. Administrative fees may be charged with the Trust, a Trust Series cannot securities of any other investment at both the Trust Series and underlying bind or control the Funds. company in excess of the limits Fund levels. However, applicants 10. Applicants also believe that the contained in section 12(d)(1)(A) of the believe that certain Trust expenses may proposed trust of funds structure will be Act. be reduced under the proposed adequately disclosed and explained to arrangement. When the Trust Series investors in each Series’ prospectus. For the Commission, by the Division of Applicants represent that they will Investment Management, under delegated invest in shares of open-end investment authority. companies, applicants anticipate that disclose all loads, fees, expenses, and Margaret H. McFarland, the evaluator would charge a lower fee, charges incurred with an investment in if any at all. A Trust Series may incur the respective Trust Series in the Deputy Secretary. a customary brokerage commission in prospectus. The prospectus also will [FR Doc. 96–27433 Filed 10–24–96; 8:45 am] connection with Fund shares purchased include disclosure that investors will BILLING CODE 8010±01±M on an exchange or Nasdaq-NMS, but pay indirectly a portion of the expenses of the underlying Funds. In addition, applicants represent that the Sponsor [Rel. No. IC±22292; 811±2712] will purchase the Fund shares in the each Series will include the table secondary market, thereby avoiding the required by item 2 of Form N–1A John Hancock Tax-Exempt Income payment of any underwriting spreads (modified as appropriate to reflect the Fund; Notice of Application common during an initial offering. differences between unit investment 7. Applicants argue that the concerns trusts and open-end investment October 21, 1996. of large-scale redemptions is not companies) to set forth the Series’ AGENCY: Securities and Exchange applicable with regard to underlying operating expenses and Unitholders’ Commission (‘‘SEC’’). closed-end Funds because they do not transaction costs. ACTION: Notice of application for issue redeemable securities. For 11. Applicants believe that it is exemption under the Investment redeemable securities, section appropriate to apply the NASD’s rules Company Act of 1940 (the ‘‘Act’’). 12(d)(1)(F) provides that an underlying to the proposed arrangement instead of Fund will not be obligated to redeem its the sales load limitation in section APPLICANT: John Hancock Tax-Exempt securities in an amount exceeding 1% of 12(d)(1)(F)(ii). Applicants argue that the Income Fund. the issuer’s total outstanding securities NASD’s specific sales charge rules, RELEVANT ACT SECTION: Section 8(f). during any period of less than 30 days, which were recently amended to limit SUMMARY OF APPLICATION: Applicant and applicants will comply with this asset-based sales charges and service requests an order declaring that it has provision. Applicants also believe that fees, more accurately reflect the current ceased to be an investment company. the unmanaged nature of the Trust methods used by funds to finance sales limits large scale redemptions because expenses, while section 12(d)(1)(F), FILING DATES: The application was filed each Trust Series is limited as to when adopted more than 25 years ago, does on July 9, 1996 and amended on it may sell portfolio securities. not reflect the changes in the industry’s October 1, 1996. 8. Applicants believe that the concern pricing practices. HEARING OR NOTIFICATION OF HEARING: An of pyramiding of voting control by a 12. Applicants believe that, given the order granting the application will be Trust Series over the underlying Funds number and variety of funds now issued unless the SEC orders a hearing. does not arise in its proposal because available for investment, a Trust Series Interested persons may request a section 12(d)(1)(F) requires the Trust provides a simple means through which hearing by writing to the SEC’s Series to exercise the voting rights with investors can obtain a professionally Secretary and serving applicants with a respect to any securities acquired in the selected and maintained mix of copy of the request, personally or by manner prescribed by section investment company shares for a mail. Hearing requests should be 12(d)(1)(E). Section 12(d)(1)(E) requires relatively small initial investment. received by the SEC by 5:30 p.m. on the acquiring investment company Applicants also believe that the Trust November 15, 1996, and should be either to seek instructions from its Series provides investors an opportunity accompanied by proof of service on Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices 55331 applicants in the form of an affidavit or, persons of each other solely by reason 8. Applicant was terminated as a for lawyers, a certificate of service. of having a common investment adviser, Massachusetts business trust on May 3, Hearing requests should state the nature common directors and/or common 1996 pursuant to the termination of of the writer’s interest, the reason for the officers. In order to comply with rule trust filed with the Secretary of State of request, and the issues contested. 17a–8, which governs mergers of certain the Commonwealth of Massachusetts. Persons who wish to be notified of a affiliated investment companies, the For the SEC, by the Division of Investment hearing may request notification by Board determined that the Management, under delegated authority. writing to the SEC’s Secretary. reorganization was in the best interests Margaret H. McFarland, ADDRESSES: Secretary, SEC, 450 5th of applicant and applicant’s Deputy Secretary. shareholders.1 In compliance with rule Street, N.W., Washington, DC 20549. [FR Doc. 96–27437 Filed 10–24–96; 8:45 am] Applicant, 101 Huntington Avenue, 17a–8, the Board found that (1) BILLING CODE 8010±01±M Boston, MA 02199–7603. participation in the Reorganization was FOR FURTHER INFORMATION CONTACT: in the best interests of applicant and Diane L. Titus, Paralegal Specialist, at that (2) the interests of the existing [Release No. 35±26594] (202) 942–0584, or Alison E. Baur, shareholders of applicant would not be Filings Under the Public Utility Holding Branch Chief, (202) 942–0564 (Office of diluted. Company Act of 1935, as amended Investment Company Regulation, 4. A proxy statement was filed with (``Act'') Division of Investment Management). the Commission and mailed to SUPPLEMENTARY INFORMATION: The shareholders in connection with the October 18, 1996. following is a summary of the solicitation by the Board of proxies for Notice is hereby given that the application. The complete application the purpose of voting on the following filing(s) has/have been made may be obtained for a fee at the SEC’s Reorganization. At a meeting held on with the Commission pursuant to Public Reference Branch May 2, 1996, the shareholders approved provisions of the Act and rules the agreement and the transactions promulgated thereunder. All interested Applicant’s Representations contemplated thereby. persons are referred to the application(s) 1. Applicant, a registered open-end 5. On May 3, 1996, applicant and/or declaration(s) for complete investment company, was organized as transferred all of its assets and liabilities statements of the proposed a Massachusetts business trust. On to Tax-Free Bond Fund in exchange for transaction(s) summarized below. The December 1, 1976, applicant registered shares of beneficial interest of Tax-Free application(s) and/or declaration(s) and under section 8(a) of the Act and filed Bond Fund with an aggregate net asset any amendments thereto is/are available a registration statement on Form N–1A value equal to the net asset value of the for public inspection through the pursuant to section 8(b) of the Act and assets transferred by applicant. Commission’s Office of Public the Securities Act of 1933. The Immediately thereafter, applicant Reference. registration statement was declared distributed to its shareholders the shares Interested persons wishing to effective on January 28, 1977 and of Tax-Free Bond Fund received. Upon comment or request a hearing on the applicant commenced its public offering completion of the Reorganization, each application(s) and/or declaration(s) of shares soon thereafter shareholder of applicant owned shares should submit their views in writing by 2. At a meeting held on December 11, of Tax-Free Bond with the same November 12, 1996, to the Secretary, 1995, applicant’s Board of Trustees (the aggregate net asset value as the shares of Securities and Exchange Commission, ‘‘Board’’) approved unanimously the applicant owned by the shareholder Washington, D.C. 20549, and serve a agreement and plan of reorganization immediately prior to the Reorganization. copy on the relevant applicant(s) and/or (the ‘‘Agreement’’) (the transactions 6. Applicant and Tax-Free Bond Fund declarant(s) at the address(es) specified contemplated by the Agreement are each assumed its own expenses in below. Proof of service (by affidavit or, referred to as the ‘‘Reorganization’’) and connection with the Reorganization. in case of an attorney at law, by recommended that applicant’s Legal, accounting and other expenses in certificate) should be filed with the shareholders approve the Agreement. the approximate amount of $82,500 request. Any request for hearing shall The Agreement provided that applicant relating to the Reorganization were identify specifically the issues of fact or would transfer all of its assets and borne by applicant. Reorganization law that are disputed. A person who so liabilities to John Hancock Tax-Free expenses (legal, printing and mailing requests will be notified of any hearing, Bond Fund (‘‘Tax-Free Bond Fund’’) in and registration fees) of $39,000 were if ordered, and will receive a copy of exchange for shares of beneficial interest incurred by Tax-Free Bond Fund. any notice or order issued in the matter. of the Tax-Free Bond Fund with an 7. Applicant has no assets, liabilities, After said date, the application(s) and/ aggregate net asset value equal to the net outstanding debts or shareholders as of or declaration(s), as filed or as amended, asset value of applicant’s assets the time of filing the application, and is may be granted and/or permitted to transferred pursuant to the not a party to any litigation or become effective. Reorganization. The Board considered administrative proceeding application. the following reasons, among others, in EUA Energy Investment Corporation Applicant is not engaged, nor does it (70–8617) determining that the Reorganization propose to engage, in any business would benefit applicant and its activities other than those necessary for EUA Energy Investment Corporation shareholders: that both funds’ the winding-up of its affairs. (‘‘EEIC’’), P.O. Box 2333, Boston, investment objectives and policies are Massachusetts 02107, a wholly-owned substantially similar and that 1 Although purchases and sales between affiliated nonutility subsidiary of Eastern Utilities simultaneous offerings of both impedes persons generally are prohibited by section 17(a) of Associates, a registered holding both funds’ growth; and that the larger the Act, rule 17a–8 provides an exemption for company, has filed a post-effective asset base may give opportunities for certain purchases and sales among investment amendment, under sections 9(a) and 10 companies that are affiliated persons of each other economies of scale. solely by reason of having a common investment of the Act and rule 54 thereunder, to its 3. Applicant and the Tax-Free Bond adviser, common directors, and/or common application-declaration, under sections Fund may be deemed to be affiliated officers. 6(a), 7, 9(a), 10 and 12(b) of the Act and 55332 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices rules 43(a) and 45(a) thereunder, in the company, and its electric public utility In addition, NorAm provides retail above file. subsidiary company, Houston Lighting energy services to industrial and large By order dated June 21, 1995 (HCAR & Power Company (‘‘HL&P’’), both of commercial concerns through NorAm No. 26314), among other things, EEIC 1111 Louisiana, Houston, Texas, 77002, Energy Management. Finally, NorAm was authorized to form a wholly-owned have filed an application under section plans to form one or more subsidiary nonutility subsidiary to participate as 3(a)(2) of the Act. companies to invest in certain gas one of two general partners in a joint HI and HL&P propose to merge and distribution systems in Latin America.3 venture, BIOTEN Partnership then to merge a new subsidiary In 1995, the natural gas business of (‘‘Partnership’’), formed to develop and company with NorAm Energy Corp. NorAm accounted for 58% of its commercialize biomass-fired (‘‘NorAm’’). The application requests an consolidated revenues. combustion turbine power generation order from the Commission under On August 11, 1996, HI, HL&P and a facilities and products and/or services section 3(a)(2) of the Act that exempts new HI subsidiary company, HI Merger, offered in connection with such the public utility holding company to be Inc. (‘‘HI Merger’’), entered into an facilities; to make capital contributions formed, and all subsidiary companies Agreement and Plan of Merger (‘‘Merger to the Partnership in an aggregate thereof, from all provisions of the Act Agreement’’) with NorAm. Under the amount of up to $1.907 million to be except section 9(a)(2). Merger Agreement, HI will merge with disbursed in connection with the testing HI owns two principal public utility HL&P and the outstanding common and development of a commercial subsidiary companies.1 HL&P is stock of HI will become the common prototype plant and possibly, an engaged in the generation, transmission, stock of HL&P, which will be renamed additional $2 million (‘‘Additional distribution and sale of electric power to Houston Industries, Inc. (‘‘Houston’’). Contribution’’) through December 31, 1.5 million customers in a 5,000 square- Thereafter, NorAm will merge with HI 1998; and to provide the Partnership mile area of the Texas Gulf Coast, which Merger, which will be renamed NorAm with a working capital line of credit in area includes Houston. HI also owns Energy Corp. The new NorAm Energy an aggregate total amount of up to $3 Houston Industries Energy, Inc. (‘‘HI Corp. will be a wholly owned subsidiary million through December 31, 1998. Energy’’), which participates in company of Houston after these two EEIC now requests authorization to domestic and foreign power generation mergers (‘‘Basic Mergers’’). After the increase the working capital line of projects and invests in foreign electric Basic Mergers, the electric power credit from up to $3 million to up to $6 utilities.2 business of HL&P will be conducted by million through December 31, 1998. HI is exempt from the provisions of Houston under the name of HL&P.4 Advances made under the increased the Act, other than section 9(a)(2), Under the Merger Agreement, the working capital line of credit will bear pursuant to section 3(a)(1) because both shareholders of NorAm common stock interest at an annual rate equal to the HI and HL&P ‘‘are predominantly will receive (i) cash in the amount of prime lending rate announced from time intrastate in character and carry on their $16.00 per share or (ii) Houston to time by The First National Bank of business substantially in’’ Texas. common stock.5 If the closing occurs Boston, N.A., plus (a) 6% at any time NorAm is a public utility company after May 11, 1997, the cash (but not the Additional Contribution has been that provides retail natural gas service to stock) consideration increases thereafter made but not yet repaid to EEIC and (b) 2.75 million customers in 1,300 by two percent (simple interest) per 2% after the Additional Contribution municipalities. NorAm also owns quarter until closing. made to the Partnership has been several non-utility subsidiary The total value of the cash and stock repaid, but in no event to exceed 16% companies. Its natural gas distribution consideration to be issued in exchange per annum. business operates through three for all NorAm common stock and All advances made under the divisions—(i) Entex, the local gas common stock equivalents is expected increased working capital line of credit distribution company in Houston and in to be about $2.5 billion. will become due and payable three other areas in Texas, Louisiana and The Boards of Directors of all parties years after the later of (a) the date of the Mississippi; (ii) Arkla, which distributes have approved the Merger Agreement. partnership agreement establishing the retail natural gas in Arkansas, Consummation of the Basic Mergers is Partnership and (b) the date such line of Louisiana, Oklahoma and Texas; and subject to usual closing conditions and credit is first drawn upon. All advances (iii) Minnegasco, which distributes approval by HI and NorAm under the increased working capital line natural gas in Minnesota. of credit will be evidenced by a NorAm also operates interstate gas 3 See SEC File No. 70–8811. promissory note and the Partnership’s pipeline facilities through two 4 The application states that, if the order is not obligations under the note will be subsidiary companies, NorAm Gas granted, and if HL&P determines that, upon secured by a first priority security Transmission Company and Mississippi consummation of the Basic Mergers, Houston would not be an exempt public utility holding interest in the assets of the Partnership. River Transmission Corporation, and company, then NorAm and HI will both be merged EEIC states that additional funding is operates natural gas acquisition assets in with and into HL&P. HL&P would be the surviving needed for working capital purposes Oklahoma, Louisiana, Arkansas and corporation and would be renamed Houston due to unavoidable technical delays in Texas through NorAm Field Services Industries Incorporated. The application also states that, if, when all conditions for consummation of developing the prototype plant, Corp. Another subsidiary company, the transaction have been satisfied or waived, the scheduled for acceptance testing in NorAm Energy Services, Inc., with Act does not constrain the structure of the November 1996. EEIC believes that the certain affiliates, markets wholesale transaction, then (i) HI will not merge with and into long-term profitability of its investment natural gas and provides risk HL&P and (ii) NorAm will merge with and into HI Merger. HI Merger would be the surviving in the Partnership would not be management services. corporation and would be renamed NorAm Energy adversely affected by the requested Corp. In that event, both NorAm and HL&P would increase. 1 HI also owns several other non-utility subsidiary be wholly owned subsidiaries of HI. companies. HL&P, however, accounts for 5 The market value of the stock component will Houston Industries, Inc., et al. (70– substantially all of the consolidated income and be equal to about $16.00 per share if the average 8907) common stock equity of HI. New York Stock Exchange closing sales price of HI 2 Foreign electric utilities in which HI Energy has common stock is within a specified price range in Houston Industries Incorporated invested are exempt foreign utility companies a twenty-day period prior to the closing date of the (‘‘HI’’), an exempt public utility holding under section 33(a) of the Act. Basic Mergers. Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices 55333 shareholders. The parties contemplate Gulf States’ cogeneration facility, will pay the same monthly rent that shareholder meetings to approve the Louisiana Station No. 1, located in East Exxon is obligated to pay under the transactions prior to the end of 1996. Baton Rouge Parish, Louisiana Lease. Steam and electric service The application states that (‘‘Louisiana Station’’). Louisiana Station rendered by Gulf States to Exxon during consummation of the Basic Mergers is was originally constructed to serve the the same period will be paid for at the also subject to regulatory approvals, steam and electrical requirements of the rates as set forth in an Amended and including those from state regulatory Exxon facility and has been primarily Restated Steam Contract (‘‘Steam agencies,6 and the submission of the dedicated to that purpose since its Contract’’), and any additional notifications under the Hart-Scott- construction. electricity shall be provided to Exxon Rodino Antitrust Improvements Act of Pursuant to an arrangement between pursuant to the existing Electric 1976. Exxon and Gulf States, Exxon supplies Agreement. The Merger Agreement provides for fuel to Louisiana Station that is By structuring the transaction to termination upon the occurrence of converted into steam and byproduct include both the Lease and the electricity which is then delivered to the certain events, to include failure to Sublease, Exxon may immediately Exxon facility. The amount of electricity consummate the Basic Mergers by commence modernization of Louisiana produced from this process is not August 11, 1997. The Merger Agreement Station and Gulf States may continue to normally sufficient to met Exxon’s provides for a termination fee to be paid fulfill its contractual obligations to the requirements and Exxon purchases in certain circumstances, which fee Steam Contract. ranges from $10 million to $75 million. additional electricity from Gulf States The application states that, on a gross- pursuant to an electric service contract. Phase 2 of the Lease will commence to-gross basis, the gross operating Gulf States and Exxon propose to once improvements and modernization revenues of NorAm ($1.72 billion) in enter into an agreement that would to Louisiana Station are complete, and 1995 were approximately 47% of those allow for the modernization of the Exxon shall begin to pay Gulf States a of HL&P ($3.68 billion). Louisiana Station to improve its monthly fixed rent and a monthly The application requests an order reliability and efficiency and potentially variable rent up to a stated maximum from the Commission under section increase its capacity for the continued amount depending upon the quantity of 3(a)(2) of the Act, which exempts a production of steam and electric energy steam generated by Louisiana Station. public utility holding company if ‘‘such produced from fuel supplied by Exxon. The Sublease will no longer be in effect. holding company is predominantly a To facilitate the above-mentioned Also during Phase 2, Gulf States will public-utility company whose transaction, Gulf States now proposes to provide equipment, personnel and operations as such do not extend enter into an Agreement for Lease of services required for operation and beyond the State in which it is Generating Facilities (‘‘Lease’’), a Base maintenance of the facility pursuant to organized and States contiguous Facility Sublease and Lease of an operating and maintenance service thereto.’’ Additions and Betterments (‘‘Sublease’’) agreement (‘‘Operating Agreement’’). and other related agreements. Gulf States will be compensated for its Entergy Gulf States, Inc. (70–8911) Pursuant to the Lease, Gulf States will services under this Operating Entergy Gulf States, Inc. (‘‘Gulf lease to Exxon its generating facilities Agreement by a fee structure that States’’), 350 Pine Street, Beaumont, and certain property located within and includes, in addition to reimbursement Texas 77701, a wholly owned public- surrounding the Louisiana Station upon of its expenses, the payment of an utility subsidiary of Entergy Corporation which Exxon proposes to construct a overhead fee and an incentive fee. The (‘‘Entergy’’), a registered holding new gas-fired turbine and associated overhead fee is fixed initially at a stated company, has filed an application- facilities. All capital and other costs to minimum per year and will not be declaration under sections 9(a), 10 and effect such modernization will be borne subject to renegotiation more than every 12(d) of the Act and rule 44 thereunder. by Exxon. Gulf States has certain two (2) years. The incentive fee is fixed Gulf States provides steam and termination rights should Exxon fail to at a stated maximum per year based associated byproduct electrical energy commence the modernization of upon Gulf States attainment of certain to Exxon Corporation (‘‘Exxon’’) at its Louisiana Station by appropriating performance goals, and the company petrochemical manufacturing facilities funds within one (1) year of the date of has the opportunity to earn other that surround and are contiguous to the grant of all necessary regulatory incentives based on cost savings. approvals. For the Commission, by the Division of 6 The Lease has an initial term in The application states that the Basic Mergers are Investment Management, pursuant to subject to review by regulatory commissions in each excess of twenty (20) years with two (2) state other than Texas in which NorAm conducts optional term extensions of ten (10) delegated authority. utility operations. HI and NorAm will request prior years. The initial term is divided into Margaret H. McFarland, approval of the Basic Mergers from the Minnesota Deputy Secretary. Public Utilities Commission, the Arkansas Public two (2) stages, Phases 1 and 2. Service Commission, the Oklahoma Corporation Generally, Phase 1 is the period during [FR Doc. 96–27391 Filed 10–24–96; 8:45 am] Commission, the Louisiana Public Service which Exxon is to complete BILLING CODE 8010±01±M Commission, and the Mississippi Public Service modernization of Louisiana Station, Commission. Each of those agencies regulates rates and services provided by a NorAm division and is which should not exceed thirty (30) expected to review the transaction to assure that it months from the date Gulf States [Investment Company Act Rel. No. 22293; is not inconsistent with the public interest. Texas secures all necessary regulatory 812±10256] statutes do not require HI and NorAm to obtain approvals. Phase 2 is the twenty (20) approval of the transaction from the Texas Railroad Commission (‘‘Railroad Commission’’) or the Texas year period thereafter. Van Kampen American Capital Equity Public Utility Commission (‘‘TPUC’’). However, the During Phase 1 of the Lease, the Opportunity Trust, et al.; Notice of Basic Mergers will not affect the authority of the Sublease will be in effect in order that Application Railroad Commission over operations of NorAm or Gulf States may continue to use the the authority of the TPUC over the operations of October 21, 1996. HL&P. In addition, NorAm and HI are currently facilities to fulfill its obligations to engaged in informal discussions with the Railroad Exxon under an existing steam contract. AGENCY: Securities and Exchange Commission and the TPUC on the Basic Mergers. Pursuant to the Sublease, Gulf States Commission (‘‘SEC’’). 55334 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices

ACTION: Notice of application for for each Series. Each Series will be annual rate of .25% of the Fund’s exemption under the Investment created under state law pursuant to a average daily net assets. Company Act of 1940 (‘‘Act’’). trust agreement that will contain Applicants’ Legal Analysis information specific to that Series, and APPLICANTS: Van Kampen American will incorporate by reference a master 1. Section 12(d)(1)(A) of the Act Capital Equity Opportunity Trust (the trust agreement between the Sponsor provides that no registered investment ‘‘Trust’’), on behalf of itself and certain and a financial institution that satisfies company may acquire securities issued subsequent series (each a ‘‘Series’’), and the criteria in section 26(a) of the Act by another investment company if such Van Kampen American Capital (the ‘‘Trustee’’). The trust agreement and securities represent more than 3% of the Distributors, Inc. (the ‘‘Sponsor’’). the master trust agreement are referred total outstanding voting stock of the RELEVANT ACT SECTIONS: Order requested to collectively as the ‘‘Trust acquired company, more than 5% of the under section 6(c) of the Act for an Agreement.’’ value of the total assets of the acquiring exemption from section 12(d)(1)(F)(ii) of 2. Each Series will contain a portfolio company, or if securities issued by the the Act. of shares of investment companies or acquired company and all other SUMMARY OF APPLICATION: Applicants series thereof (the ‘‘Funds’’) that are not investment companies have an aggregate seek an order that would permit each affiliated with any of the applicants. value in excess of 10% of the value of Series of the Trust to offer units Each Series may invest either in only the total assets of the acquiring (‘‘Units’’) with a sales load in excess of one type of investment company or in company. the 1.5% limit contained in section a combination of the various types of 2. Section 12(d)(1)(F) provides that 12(d)(1)(F)(ii) of the Act. investment companies. The shares of section 12(d)(1) shall not apply to FILING DATES: The application was filed the Funds will be deposited in each securities purchased or otherwise on July 22, 1996, and amended on Series at net asset value, or, if the Fund acquired by a registered investment September 5, 1996. shares are listed on a national securities company if, immediately after the purchase or acquisition, not more than HEARING OR NOTIFICATION OF HEARING: An exchange or traded on the Nasdaq 3% of the total outstanding stock of the order granting the application will be National Market System (‘‘Nasdaq- acquired company is owned by the issued unless the SEC orders a hearing. NMS’’), at their ‘‘market value.’’ Market acquiring company, and the acquiring Interested persons may request a value will be determined by an evaluator, and generally will be based company does not offer or sell any hearing by writing to the SEC’s security issued by it at a price that Secretary and serving applicant with a on the closing sale prices (or, if unavailable, the closing ask prices) for includes a sales load of more than 1.5%. copy of the request, personally or by In addition, no issuer of any security mail. Hearing requests should be the securities traded on an exchange, and on the closing ask prices for the purchased or acquired by such received by the SEC by 5:30 p.m. on registered investment company shall be November 15, 1996, and should be securities traded on the Nasdaq-NMS. 3. Each of the Funds will be registered obligated to redeem such security in an accompanied by proof of service on as a closed-end investment company amount exceeding 1% of such issuer’s applicants, in the form of an affidavit or, (‘‘Closed-End Funds’’), an open-end total outstanding securities during any for lawyers, a certificate of service. investment company (‘‘Open-End period of less than 30 days. Hearing requests should state the nature Funds’’), or a UIT. In addition, certain 3. Section 6(c) provides that the SEC of the writer’s interest, the reason for the of the Funds may be either an Open-End may exempt any series of transactions request, and the issues contested. Fund or a UIT that has received from any provision of the Act or any Persons who wish to be notified of a exemptive relief to sell its shares at rule or regulation thereunder if and to hearing may request such notification ‘‘negotiated prices’’ on an exchange in the extent that such exemption is by writing to the SEC’s Secretary. the same manner as other equity necessary of appropriate in the public ADDRESSES: Secretary, SEC, 450 Fifth securities.1 interest and consistent with the Street, N.W., Washington, D.C. 20549. 4. Simultaneously with the deposit of protection of investors and the purposes Applicants, One Parkview Plaza, Fund shares into a Series, the Trustee fairly intended by the policy and Oakbrook Terrace, Illinois 60181. will deliver to the Sponsor registered provisions of the Act. Applicants FOR FURTHER INFORMATION CONTACT: certificates for Units that represent the therefore request an exemption under Courtney S. Thornton, Senior Counsel, entire ownership of the Series. During section 6(c) to permit a Series to offer at (202) 942–0583, or Alison E. Baur, the initial public offering, these Units Units with a sales load in excess of the Branch Chief, at (202) 942–0564 will be offered at prices based on the 1.5% limitation, subject to the (Division of Investment Management; aggregate underlying value of the Fund conditions set forth herein. Applicants Office of Investment Company shares, plus a sales charge. The sales believe the requested relief meets the Regulation). charge (either a front end or a deferred standards for an exemption set forth in SUPPLEMENTARY INFORMATION: The sales load, or a combination thereof) section 6(c). following is a summary of the shall not, when aggregated with any 4. Applicants argue that section application. The complete application sales charge or service fees paid by the 12(d)(1) is intended to mitigate or may be obtained for a fee from the SEC’s Series with respect to shares of the eliminate actual or potential abuses that Public Reference Branch. Funds, exceed the limits set forth in might arise when one investment Rule 2830(d) of the NASD’s Conduct company acquires shares of another Applicants’ Representations Rules. No Series will invest in a Fund investment company. These abuses 1. The Trust is a unit investment trust with a rule 12b–1 plan, unless the Fund include: (a) the layering of sales charges, (‘‘UIT’’) registered under the Act. Each limits the plan fees to a maximum advisory fees, and administrative costs; Series also will be a UIT, and will be (b) the imposition of undue influence by similar but separate and designated by 1 See, e.g., Foreign Fund Inc., Investment the acquiring fund over the management a different Series number. The Sponsor, Company Act Release Nos. 21737 (Feb. 6, 1996) of the acquired funds through threat of (notice) and 21803 (Mar. 5, 1996) (order), and SPDR a registered broker-dealer and member Trust, Investment Company Act Release Nos. 18959 large scale redemptions; (c) the of the National Association of Securities (Sept. 17, 1992) (notice) and 19055 (Oct. 26, 1992) acquisition by the acquiring company of Dealers, Inc. (‘‘NASD’’), is the sponsor (order). voting control of the acquired company; Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices 55335 and (d) the creation of a complex securities. Section 12(d)(1)(F) addresses set forth the Series’ operating expenses pyramidal structure that may be this concern with respect to Funds and unitholders’ transaction costs. confusing to investors. Applicants do issuing redeemable securities by 11. Applicants believe that it is not believe that any of these potential or providing that the Fund will not be appropriate to apply the NASD’s rules actual abuses are present in their obligated to redeem its securities in an to the proposed arrangement instead of proposed trust of funds structure. amount exceeding 1% of its total the sales load limitation in section 5. Applicants assert that the structure outstanding securities during any period 12(d)(1)(F)(ii). Applicants argue that the of the Series will not result in excessive of less than 30 days, and applicants will NASD’s specific sales charge rules, fees. Each Series, as a UIT, has an comply with this provision. Applicants which recently were amended to limit unmanaged portfolio and, therefore, believe that the unmanaged nature of does not assess advisory fees. UITs precludes the concern of large asset-based sales charges and service Unitholders of a Series, however, would scale redemptions or sales during the fees, more accurately reflect the current bear their portion of the advisory fees life of a Series because each Series is methods used by funds to finance sales charged the underlying Funds, if any, limited as to when it may sell its expenses, while section 12(d)(1)(F), for services rendered by the Fund’s portfolio securities. adopted more than 25 years ago, does respective investment adviser. 8. Applicants do not believe that not reflect the changes in the industry’s Applicants also contend that there will pyramiding of control is a concern with pricing practices. be no overlapping of sales charges or respect to the proposed trust of funds 12. Applicants assert that the trust of distribution fees. While each Series will structure because each Series will funds proposal will benefit potential charge a sales load, the Sponsor will comply with section 12(d)(1)(F) (other unitholders as well as shareholders of deposit the Fund shares in the Series at than the sales load limitation therein), the Funds. Applicants believe that, net asset value (i.e., without any sales which requires the Series to exercise the given the number and variety of funds charge), or, if the shares of the Funds are voting rights with respect to any now available for investment, a Series traded on an exchange or Nasdaq-NMS, acquired securities in the manner provides a simple means through which at their market value. In addition, each prescribed by section 12(d)(1)(E). investors can obtain a professionally Series, as a UIT, does not charge a rule Section 12(d)(1)(E) requires the selected and maintained mix of 12b–1 fee, and no Series would invest acquiring investment company either to investment company shares for a in a Fund with a rule 12b–1 plan unless seek instructions from its security relatively small initial investment. the Fund limits its rule 12b–1 fee to a holders with regard to the voting of all Applicants also believe that each Series maximum annual rate of .25% of the proxies with respect to any acquired will provide potential investors with the Fund’s average daily net assets. Finally, security and to vote such proxies only opportunity to participate in a applicants have agreed as a condition to in accordance with such instructions, or diversified portfolio of investment the relief that any sales charge assessed to vote the shares held by it in the same company shares in one package and at with respect to the Units of a Series, proportion as the vote of all other one sales load. Applicants anticipate when aggregated with any sales charges holders of such security. that purchasing shares in large and service fees paid by the Series with 9. Applicants represent that the quantities will enable a Series to obtain respect to securities of the underlying proposed trust of funds structure is certain economies of scale, and will Funds, shall not exceed the limits set unlikely to give rise to concerns of benefit certain Funds by permitting forth in Rule 2830(d) of the Conduct undue complexity because they have them to carry a Series on their books as Rules of the NASD. As a result, the agreed that no Series will invest in any a single shareholder account, even aggregate sales charges will not exceed Fund that, at the time of acquisition, though there are numerous unitholders, the limit that otherwise lawfully could owns securities in excess of the limits and by providing them with a stable be charged at any single level. contained in section 12(d)(1)(A). asset base. 6. Administrative fees may be charged However, if a Fund subsequently at both the Series and underlying Fund acquires securities of other investment Applicants’ Conditions levels. However, applicants believe that companies in excess of the limits in certain Trust expenses may be reduced section 12(d)(1), the Series will not be Applicants agree that the order under the proposed arrangement. For required to divest itself of its holdings. granting the requested relief shall be example, when a Series invests in Applicants argue that, because the subject to the following conditions: shares of Open-End Funds, whose net Funds are not affiliated with the Trust, 1. Each Series will comply with asset value is readily available, the Series cannot bind or control the section 12(d)(1)(F) in all respects except applicants anticipate that the evaluator Funds. for the sales load limitation of section would charge a lower fee, if any at all. 10. Applicants believe that the 12(d)(1)(F)(ii). A Series may incur customary brokerage proposed trust of funds structure will be commissions with respect to the adequately disclosed and explained to 2. Any sales charges or service fees purchase of Fund shares traded on an investors in each Series’ prospectus. charged with respect to Units of Series, exchange or Nasdaq-NMS, but Applicants state that they will fully when aggregated with any sales charges applicants represent that the Sponsor disclose in each prospectus all loads, or services paid by the Series with will purchase these shares in the fees, expenses, and charges incurred respect to securities of the underlying secondary market and thus avoid with an investment in the respective Funds, shall not exceed the limits set payment of any underwriting spreads Series. The prospectus also will include forth in rule 2830(d) of the NASD’s common during the initial offering of disclosure that investors will pay Conduct Rules. such shares. indirectly a portion of the expenses of 3. No Series will acquire securities of 7. Applicants argue that the concern the underlying Funds. In addition, the an underlying Fund that, at the time of of large-scale redemptions is not prospectus for each Series will include acquisition, owns securities of any other applicable with respect to a Fund that the table required by item 2 of Form N- investment company in excess of the is a Closed-End Fund, because such 1A (modified to reflect the differences limits contained in section 12(d)(1)(A) Funds do not issue redeemable between UITs and Open-End Funds) to of the Act. 55336 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices

For the SEC, by the Division of Investment request, and the issues contested. one or several investment options. Management, under delegated authority. Persons may request notification of a Participants in Qualified Plans may or Margaret H. McFarland, hearing by writing to the Secretary of may not be given an investment choice Deputy Secretary. the Commission. among available alternatives, depending [FR Doc. 96–27436 Filed 10–24–96; 8:45am] ADDRESSES: Secretary, Securities and on the Qualified Plan itself. Shares of BILLING CODE 8010±01±M Exchange Commission, 450 5th Street, any Investment Company sold to N.W., Washington, D.C. 20549. Qualified Plans would be held by the trustee(s) of such Qualified Plans as [Rel. No. IC±22290; No. 812±10190] Applicants, c/o Matthew J. Simpson, Esq., GE Investment Management mandated by Section 403(a) of the Variable Investment Trust, et al. Incorporated, 3003 Summer Street, Employee Retirement Income Security Stamford, Connecticut 06905. Act (‘‘ERISA’’). To the extent permitted under applicable law, GEIM may act as October 18, 1996. FOR FURTHER INFORMATION CONTACT: AGENCY: Securities and Exchange Kevin M. Kirchoff, Senior Counsel, or investment adviser to any of the Qualified Plans that will purchase Commission (‘‘Commission’’). Patrice M. Pitts, Special Counsel, Office shares of the Trust. Applicants note that ACTION: Notice of application for an of Insurance Products (Division of pass-through voting is not required to be exemption pursuant to the Investment Investment Management), at (202) 942– provided to participants in Qualified Company Act of 1940 (the ‘‘1940 Act’’). 0670. Plans under ERISA. APPLICANTS: Variable Investment Trust SUPPLEMENTARY INFORMATION: The (the ‘‘Trust’’), GE Investment following is a summary of the Applicants’ Legal Analysis Management Incorporated (‘‘GEIM’’) application; the complete application is 1. Applicants request that the and certain life insurance companies available for a fee from the Public Commission issue an order under and their separate accounts investing Reference Branch of the Commission. Section 6(c) of the 1940 Act exempting now or in the future in the Trust. Applicants’ Representations them from Sections 9(a), 13(a), 15(a), RELEVANT 1940 ACT SECTIONS: Order and 15(b) thereof and Rules 6e–2(b)(15) 1. The Trust is a Massachusetts requested under Section 6(c) for and 6e–3(T)(b)(15) thereunder to the business trust registered under the 1940 exemption from Sections 9(a), 13(a), extent necessary to permit ‘‘mixed’’ and Act as an open-end management 15(a) and 15(b) of the 1940 Act and ‘‘shared’’ funding, as defined below. investment company. The Trust Rules 6e–2(b)(15) and 6e–3(T)(b)(15) 2. Section 6(c) authorizes the currently consists of five separate thereunder. Commission to grant exemptions from investment portfolio (‘‘Portfolios’’), and the provisions of the 1940 Act, and rules SUMMARY OF APPLICATION: Applicants may establish additional portfolios. thereunder, if and to the extent that an seek exemptive relief to the extent 2. GEIM, a wholly-owned subsidiary exemption is necessary or appropriate necessary to permit shares of the Trust of General Electric Company, serves as in the public interest and consistent and any other investment company that investment adviser to each Portfolio of with the protection of investors and the is offered to fund variable insurance the Trust. purposes fairly intended by the policy products and for which GEIM, or any of 3. The Investment Companies will and provisions of the 1940 Act. its affiliates, may serve as investment serve as investment vehicles for various 3. Rule 6e–2(b)(15) provides partial adviser, administrator, manager, types of Variable Contracts. Shares of exemptive relief from Sections 9(a), principal underwriter, or sponsor the Investment Companies will be 13(a), 15(a), and 15(b) of the 1940 Act (collectively, ‘‘Investment Companies’’) offered to Separate Accounts of to separate accounts registered under to be sold to and held by the separate Participating Insurance Companies the 1940 Act as unit investment trusts accounts (‘‘Separate Accounts’’) funding which enter into participation to the extent necessary to offer and sell variable annuity and variable life agreements with the Trust. These scheduled premium variable life insurance contracts (‘‘Variable Separate Accounts may be registered insurance contracts. The relief provided Contracts’’) issued by affiliated or with the Commission under the 1940 by the rule also extends to the unaffiliated life insurance companies Act or exempt from registration under investment adviser, principal (‘‘Participating Insurance Companies’’) Section 3(c)(1) thereof. underwriter, and sponsor or depositor of or qualified pension and retirement 4. Each participating Insurance a separate account. plans outside of the separate account Company will have the legal obligation 4. The exemptions granted by Rule context (‘‘Qualified Plans’’ or ‘‘Plans’’). of satisfying all applicable requirements 6e–2(b)(15) are available only to a FILING DATE: The application was filed under state law and the federal management investment company on June 5, 1996, and amended and securities laws in connection with any underlying a separate account restated on October 11, 1996. Variable Contract issued by such (‘‘Underlying Fund’’) that offers its HEARING OR NOTIFICATION OF HEARING: An company. The role of the Investment shares exclusively to variable life order granting the application will be Companies under this arrangement will insurance separate accounts of a life issued unless the Commission orders a consist of offering shares to the Separate insurer, or of any other affiliated life hearing. Interested persons may request Accounts and fulfilling any conditions insurance company, issuing scheduled a hearing by writing to the Secretary of the Commission may impose upon premium variable life insurance the Commission and serving Applicants granting the order requested in this contracts. The relief granted by Rule 6e– with a copy of the request, personally or application. 2(b)(15) is not available to a separate by mail. Hearing requests must be 5. The Trust desires to avail itself of account issuing scheduled premium received by the Commission by 5:30 the opportunity to increase its asset base variable life insurance contracts if the p.m. on November 12, 1996, and must through the sale of its shares to Underlying Fund also offers its shares to be accompanied by proof of service on Qualified Plans, consistent with a separate account issuing variable Applicants in the form of an affidavit or, applicable tax law. The Qualified Plans annuity or flexible premium variable for lawyers, a certificate of service. may choose any of the Investment life insurance contracts. The use of a Hearing requests should state the nature Companies as the sole investment common Underlying Fund as an of the writer’s interest, the reason for the option under the Qualified Plan or as investment vehicle for both variable Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices 55337 annuity contracts and scheduled or Code of 1986, as amended (the ‘‘Code’’), Qualified Plans that Applicants are flexible premium variable life insurance imposes certain diversification applying for the requested relief. contracts is referred to herein as ‘‘mixed standards on the assets underlying 10. Section 9(a) of the 1940 Act makes funding.’’ variable contracts, such as those in each it unlawful for any company to serve as 5. Additionally, the relief granted by Portfolio of the Trust. These an investment adviser to, or principal Rule 6e–2(b)(15) is not available to diversification requirements are applied underwriter of, any registered open-end separate accounts issuing scheduled by taking into account the assets of the investment company if an affiliated premium variable life insurance Underlying Fund if all the beneficial person of that company is subject to any contracts if the Underlying Fund also interests in the Underlying Fund are disqualification specified in Sections offers its shares to unaffiliated life held by certain designated persons. On 9(a)(1) or 9(a)(2). Subparagraphs (b)(15) insurance company separate accounts March 2, 1989, the Treasury Department (i) and (ii) of Rules 6e–2 and 6e–3(T) funding variable contracts. The use of a issued regulations that adopted provide exemptions from Section 9(a) common fund as an underlying diversification requirements for under certain circumstances, subject to investment vehicle for separate accounts Underlying Funds. Treas. Reg. § 1.817– limitations on mixed and shared of unaffiliated insurance companies is 5 (1989). These regulations provide that, funding. The relief provided by referred to herein as ‘‘shared funding.’’ in order to meet the diversification subparagraphs (b)(15)(i) of Rules 6e–2 Moreover, because the relief granted by requirements, all of the beneficial and 6e–3(T) permits a person Rule 6e–2(b)(15) is available only where interests in the investment company disqualified under Section 9(a) to serve shares of the Underlying Fund are must be held by the segregated asset as an office, director, or employee of the offered exclusively to separate accounts accounts of one or more insurance life insurer, or any of its affiliates, so of insurance companies, additional companies. The regulations, however, long as that person does not participate exemptive relief is necessary if the contain certain exceptions to this directly in the management or shares of the Trust also are to be sold requirement, one of which permits the administration of the Underlying Fund. to Qualified Plans. trustee(s) of a qualified pension or The relief provided by subparagraph 6. Regarding the funding of flexible retirement plan to hold shares of an (b)(15)(ii) of Rules 6e–2 and 6e–3(T) variable life insurance contracts issued investment company, the shares of permits the life insurer to serve as the through a separate account, Rule 6e– which also are held by separate investment adviser or principal 3(T)(b)(15) provides partial exemptions accounts of insurance companies, underwriter of an Underlying Fund, from Sections 9(a), 13(a), 15(a), and without adversely affecting the status of provided that none of the personnel of 15(b) of the 1940 Act. This exemptive the investment company as an the insurer who are ineligible pursuant relief extends to the investment adviser, adequately diversified underlying to Section 9(a) are participating in the principal underwriter, and sponsor or investment vehicle for variable contracts management or administration of the depositor of a separate account. These issued through such segregated asset fund. exemptions are available only where the 11. Applicants state that the partial accounts. Treas. Reg. § 1.817–5(f)(3)(iii). Underlying Funds of the separate relief granted under subparagraphs account offers its shares ‘‘exclusively to 8. Applicants state that the (b)(15) of Rules 6e–2 and 6e–3(T) from separate accounts of the life insurer, or promulgation of Rules 6e–2(b)(15) and the requirements of Section 9(a), in of any affiliated life insurance company, 6e–3(T)(b)(15) preceded the issuance of effect, limits the monitoring of the offering either scheduled contracts or regulations of the Treasury Department personnel of an insurer that would flexible contracts, or both, or which also which made it possible for shares of an otherwise be necessary to ensure offer their shares to variable annuity investment company to be held by the compliance with Section 9 to that which separate accounts of the life insurer or trustee(s) of qualified plans without is appropriate in light of the policy and of an affiliated life insurance company adversely affecting the ability of shares purposes of Section 9. Applicants ** * .’’ Rule 6e–3(T), therefore, in the same investment company also to submit that Rules 6e–2 and 6e–3(T) permits mixed funding with respect to be held by separate accounts of reflect a recognition that it is not a flexible premium variable life insurance companies in connection necessary for the protection of investors insurance separate account, subject to with their variable contracts. Thus, the or for the purposes of the 1940 Act to certain conditions. However, Rule 6e– sale of shares of the same investment apply the provisions of Section 9(a) to 3(T) does not permit shared funding company to separate accounts and the many individuals in an insurance because the relief granted by Rule 6e– qualified plans could not have been company complex, most of whom 3(T)(b)(15) is not available to a flexible envisioned at the time of the adoption typically will have no involvement in premium variable life insurance of Rules 6e–2(b)(15) and 6e–3(T)(b)(15) matters pertaining to an investment separate account that owns shares of a given the current tax law. company. The Participating Insurance management company that also offers 9. Moreover, Applicants assert that if Companies are not expected to play any its shares to separate accounts of the Trust were to sell its share only to role in the management or unaffiliated life insurance companies. Qualified Plans, no exemptive relief administration of the Investment Moreover, because the relief afforded by would be necessary. Applicants state Companies. Applicants, therefore, Rule 6e–3(T) is available only where that none of the relief provided for in submit that there is no regulatory reason shares of the Underlying Fund are Rules 6e–2(b)(15) and 6e–3(T)(b)(15) to apply the provisions of Section 9(a) offered exclusively to separate accounts relates to qualified pension or to the many individuals in various of insurance companies, additional retirement plans or to the ability of an Participating Insurance Companies. relief is necessary if shares of the Trust Underlying Fund to sell its shares to 12. Subparagraphs (b)(15)(iii) of Rules also are to be sold to Qualified Plans. such plans. It is only because the 6e–2 and 6e–3(T) provide partial 7. Applicants state that changes in the Separate Accounts investing in the exemptions from Sections 13(a), 15(a), tax law have created the opportunity for Trust are themselves investment and 15(b) of the 1940 Act to the extent the Portfolios to increase their asset base companies which are relying upon that those sections have been deemed by through the sale of Portfolio shares to Rules 6e–2 and 6e–3(T) and do not wish the Commission to require ‘‘pass- Qualified Plans. Applicants state that to be denied such relief if the through’’ voting with respect to Section 817(h) of the Internal Revenue Investment Companies sell shares to management investment company 55338 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices shares held by a separate account, to Qualified Plan has/have the exclusive penalty will be imposed as a result of permit the insurance company to authority and responsibility for voting such withdrawal. disregard the voting instructions of it proxies. When a named fiduciary 18. Applicants state that there is no variable contract owners in certain appoints an investment manager, the reason why the investment policies of limited circumstances. investment manager has the the Investment Companies with mixed 13. Voting instructions may be responsibility to vote the shares held funding would or should be materially disregarded under subparagraphs unless the right to vote such shares is different from what they would or (b)(15)(iii)(A) of Rules 6e–2 and 6e–3(T) reserved to the trustee(s) or the named should be if the Investment Companies if they would cause the Underlying fiduciary. In any event, Applicants funded only variable annuity contracts Fund to make, or refrain from making, assert that pass-through voting by the or variable life insurance policies. Each certain investments which would result participants in such Qualified Plans is type of insurance product is designed as in changes to the subclassification or not required. Accordingly, Applicants a long-term investment program. investment objectives of the Underlying note that, unlike the case with insurance Moreover, Applicants assert that the Fund, or to approve or disapprove any company separate accounts, the issue of Investment Companies will continue to contract between a fund and its the resolution of material irreconcilable be managed in an attempt to achieve investment advisers, when required to conflicts with respect to voting is not their investment objectives, and not to do so by an insurance regulatory present with Qualified Plans. favor any particular Participating authority, subject to the provisions of 16. Applicants state that no increased Insurance Company or type of insurance paragraphs (b)(5)(i) and (b)(7)(ii)(A) of conflicts of interest would be presented product. Applicants, therefore, argue each Rule. by the granting of the requested relief. that there is no reason to believe that 14. Under subparagraph (b)(15)(iii)(B) Applicants submit that shared funding conflicts of interest would result from of Rule 6e–2 and subparagraph by unaffiliated insurance companies mixed funding. (b)(15)(iii)(A)(2) of Rule 6e–3(T), an does not present any issues that do not 19. In addition, Applicants assert that insurance company may disregard the already exist where a single insurance the sale of shares of the Trust to voting instructions of variable contract company is licensed to do business in Qualified Plans will not increase the owners if such owners initiate any several or all states. In this regard, potential for material irreconcilable change in the investment objectives, Applicants assert that a particular state conflicts of interest between or among principal underwriter, or investment insurance regulatory body could require different types of investors. Section 817 adviser of the Underlying Fund, action that is inconsistent with the is the only section in the Code in which provided that disregarding such voting requirements of other states in which separate accounts are discussed. Section instructions is reasonable and subject to the insurance company offers its 817(h) imposes certain diversification the other provisions of paragraphs variable contracts. Accordingly, standards on the underlying assets of (b)(5)(ii) and (b)(7)(ii) (B) and (C) of each Applicants submit that the fact that variable annuity and variable life Rule. different insurers may be domiciled in insurance contracts. Treasury 15. Applicants assert that the different states does not create a Regulation § 1.817–5(f)(iii) specifically proposed sale of shares of the Trust to significantly different or enlarged permits ‘‘qualified pension or retirement Qualified Plans does not affect the relief problem. plans’’ and separate accounts to share requested. As previously noted, Rules 17. Applicants state further that, the same underlying management 6e–2(b)(15)(iii) and 6e–3(T)(b)(15)(iii) under paragraph (b)(15) of Rules 6e–2 investment company. Applicants, permit an insurer to disregard variable and 6e–3(T), the right of an insurance therefore, have concluded that neither contract owner voting instructions in company to disregard the voting the Code, nor the Treasury regulations certain circumstances. Offering shares of instructions of Variable Contract owners or revenue rulings thereunder, present the Trust to Qualified Plans would not does not raise any issues different from any inherent conflicts of interest affect the circumstances and conditions those raised by the authority of state between or among qualified pension or under which any veto right would be insurance administrators over separate retirement plan participants and exercised by a Participating Insurance accounts, and that affiliation does not variable contract owners if qualified Company. Furthermore, as stated above, eliminate the potential, if any, for pension and retirement plans and shares of the Trust sold to Qualified divergent judgements as to the variable annuity and variable life Plans would be held by the trustee(s) of advisability or legality of a change in separate accounts invest in the same such Plans as mandated by Section investment policies, principal management investment company. 403(a) of ERISA. Section 403(a) provides underwriter, or investment adviser. 20. Applicants assert that while there that the trustee(s) must have exclusive Applicants state that the potential for are differences in the manner in which authority and discretion to manage and disagreement is limited by the distributions are taxed for variable control the qualified plan with two requirements in Rules 6e–2 and 6e–3(T) annuity and variable life insurance exceptions: (a) when the qualified plan that the disregard of voting instructions contracts and Qualified Plans, these tax expressly provides that the trustee(s) is/ by an insurance company be reasonable consequences do not raise any conflicts are subject to the direction of a named and based on specific good faith of interest. When distributions are fiduciary who is not a trustee, in which determinations. If a decision of a made, and the Separate Account or the case the trustee(s) is/are subject to Participating Insurance Company to Qualified Plan is unable to net purchase proper directions of such fiduciary disregard the instructions of Variable payments to make the distributions, the made in accordance with the terms of Contract owners represents a minority Separate Account or the Qualified Plan the qualified plan and not contrary to position or would preclude a majority will redeem shares of the Investment ERISA; and (b) when the authority to vote approving a particular change, Companies at their respective net asset manage, acquire, or dispose of assets of however, such Participating Insurance value. The Qualified Plan then will the qualified plan is delegated to one or Company may be required, at the make distributions in accordance with more investment managers under election of the relevant Investment the terms of the Plan, and a Section 402(c)(3) of ERISA. Unless one Company, to withdraw the investment Participating Insurance Company will of the two exceptions stated in Section of its Separate Account in such surrender values from the Separate 403(a) applies, the trustee(s) of the Investment Company. No charge or Account into the general account to Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices 55339 make distributions in accordance with the trustee(s) of Qualified Plans or the promoting economies of scale, by the terms of the Variable Contract. participants in participant directed permitting increased safety of 21. With respect to voting rights, Qualified Plans could make the decision investments through greater Applicants state that it is possible to quickly and could implement the diversification, and by making the provide an equitable means of giving redemption of their shares from the addition of new portfolios more feasible. rights to Variable Contract owners and Investment Companies and reinvest in 26. Applicants assert that there is no participants in the Qualified Plans. In another funding vehicle without the significant legal impediment to connection with any meeting of same regulatory impediments or, as is permitting mixed and shared funding. shareholders, the Trust will inform each the case with most Qualified Plans, even Separate accounts organized as unit shareholder, including each Separate hold cash pending suitable investment. investment trusts historically have been Account and Qualified Plan, of the 24. Applicants state that they do not employed to accumulate shares of information necessary for the meeting, see any greater potential for material mutual funds which have not been including their respective share of irreconcilable conflicts arising between affiliated with the depositor or sponsor ownership in the Investment the interests of participants under the of the separate account, and Applicants Companies. A Participating Insurance Qualified Plans and owners of Variable believe that mixed and shared funding Company will solicit voting instructions Contracts funded through Separate will have no adverse federal income tax in accordance with the ‘‘pass-through’’ Accounts from possible future changes consequences. voting requirement. Qualified Plans and in the federal tax laws than that which Applicants’ Conditions Separate Accounts each will have the already exists between Variable Contract opportunity to exercise voting rights owners. The Applicants have consented to the with respect to their shares in the 25. Applicants assert that the following conditions: Investment Companies, although only requested relief is appropriate and in 1. A majority of the Board of Trustees the Separate Accounts are required to the public interest because the relief or Directors of each Investment pass through their vote to contract will promote competitiveness in the Company (‘‘Board’’) shall consist of owners. The voting rights provided to variable life insurance market. Various persons who are not ‘‘interested Qualified Plans with respect to shares of factors have limited the number of persons’’ of such investment company, the Trust would be no different from the insurance companies that offer variable as defined by Section 2(a)(19) of the voting rights that are provided to insurance contracts. These factors 1940 Act and rules thereunder, and as Qualified Plans with respect to shares of include the costs of organizing and modified by any applicable orders of the mutual funds sold to the general public. operating a funding medium, the lack of Commission, except that, if this 22. Applicants argue that the ability of expertise with respect to investment condition is not met by reason of death, the Investment Companies to sell their management, and the lack of name disqualification, or bona fide resignation shares directly to Qualified Plans does recognition by the public of certain of any trustee or director, then the not create a ‘‘senior security’’ as defined insurers as investment experts to whom operation of this condition shall be by Section 18(g) of the 1940 Act. As the public feels comfortable entrusting suspended: (a) for a period of 45 days, noted above, regardless of the rights and their investments. Applicants argue that if the vacancy or vacancies may be filled benefits of participants under Qualified use of Investment Companies as by the Board; (b) for a period of 60 days, Plans, or Variable Contract owners common investment vehicles for if a vote of shareholders is required to under Variable Contracts, the Qualified Variable Contracts helps to alleviate fill the vacancy or vacancies; or (c) for Plans and the Separate Accounts have these concerns because Participating such longer as the Commission may rights only with respect to their Insurance Companies benefit not only prescribe by order upon application. respective shares of the Investment from the investment and administrative 2. The Boards will monitor the Companies. They can redeem such expertise of the investment adviser of Investment Companies for the existence shares only at their net asset value. No the Trust, but also from the cost of any material irreconcilable conflict shareholder of the Investment efficiencies and investment flexibility between the contract holders of all Companies has any preference over any afforded by a large pool of funds. Separate Accounts and of participants of other shareholder with respect to Making the Portfolios available for Qualified Plans investing in the distribution of assets or payment of mixed and shared funding may respective Investment Companies, and dividends. encourage more insurance companies to determine what action, if any, should be 23. Applicants have determined that offer variable insurance contracts and, taken in response to such conflicts. A no conflicts of interest exist between the accordingly, could result in increased material irreconcilable conflict may Variable Contract owners of the competition with respect to both arise for a variety of reasons, including: Separate Accounts and Qualified Plan variable insurance contract design and (a) state insurance regulatory authority participants with respect to the veto pricing, which can be expected to result action; (b) a change in applicable federal powers over investment objectives of in more product variation and lower or state insurance, tax, or securities laws state insurance commissioners. The charges. Mixed and shared funding also or regulations, or a public ruling, private basic premise of corporate democracy would benefit variable insurance letter ruling, no-action or interpretive and shareholder voting is that not all contract owners by eliminating a letter, or any similar action by shareholders may agree with a significant portion of the costs of insurance, tax, or securities regulatory particular proposal. State insurance establishing and administering separate authorities; (c) an administrative or commissioners have been given veto mutual funds. Furthermore, Applicants judicial decision in any relevant power in recognition of the fact that assert that the sale of shares of the proceeding; (d) the manner in which the insurance companies usually cannot Investment Companies to Qualified investments of the Investment simply redeem their separate accounts Plans, in addition to Separate Accounts Companies are being managed; (e) a out of one Underlying Fund and invest of Participating Insurance Companies, difference among voting instructions in another. Generally, time-consuming would result in an increased amount of given by Variable Contract owners; (f) a complex transactions must be assets available for investment by the decision by a Participating Insurance undertaken to accomplish such Investment Companies. This may Company to disregard the voting redemptions and transfers. Conversely, benefit Variable Contract owners by instructions of Variable Contract 55340 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices owners; or (g) as appropriate, a decision company or managed separate account. when appropriate, such a Participating by a Qualified Plan to disregard the If a material irreconcilable conflict Insurance Company will vote shares of voting instructions of Qualified Plan arises because of the decision of a a Portfolio held in its Separate Accounts participants. Participating Insurance Company to in a manner consistent with timely 3. Participating Insurance Companies disregard the voting instructions of voting instructions received from and GEIM, or any other investment Variable Contract owners, and that Variable Contract owners. A manager of an Investment Company, decision represents a minority position Participating Insurance Company also and any Qualified Plan that executes a or would preclude a majority vote, such will vote shares of a Portfolio held in its fund participation agreement upon Participating Insurance Company may Separate Accounts for which no timely becoming an owner of 10 percent or be required, at the election of the voting instructions from Variable more of the assets of the Investment relevant Investment Company, to Contract owners are received, as well as Company (collectively, ‘‘Participants’’) withdraw the investment of its Separate shares it owns, in the same proportion will report any potential or existing Account therein. No charge or penalty as those shares for which voting conflicts, of which they become aware, will be imposed as a result of such instructions are received. Participating to the relevant Board. Participants will withdrawal. Likewise, and as Insurance Companies shall be be obligated to assist the Board in appropriate, if a material irreconcilable responsible for assuring that each of carrying out its responsibilities under conflict arises because of a Qualified their Separate Accounts investing in an these conditions by providing the Board Plan’s decision to disregard Plan Investment Company calculates voting with all information reasonably participant voting instructions, and that privileges in a manner consistent with necessary for it to consider any issues decision represents a minority position other Participating Insurance raised. This responsibility includes, but or would preclude a majority vote, the Companies. The obligation to calculate is not limited to, an obligation by each Qualified Plan may be required, at the voting privileges in a manner consistent Participating Insurance Company to election of the relevant Investment with all other Separate Accounts inform the relevant Board whenever the Company, to withdraw its investment in investing in an Investment Company voting instructions of Variable Contract the Investment Company; no charge or shall be a contractual obligation of all owners are disregarded. The penalty will be imposed as a result of Participating Insurance Companies responsibility to report such such withdrawal. The responsibility to under their participation agreements information and conflicts and to assist take remedial action in the event of a with the Investment Companies. Each the Board will be a contractual determination by a Board that an Qualified Plan will vote as required by obligation of all Participants investing irreconcilable material conflict exists applicable law and governing Plan in an Investment Company under their and to bear the cost of such remedial documents. participation agreements, and those action shall be a contractual obligation 8. Each Investment Company will participation agreements shall provide of all Participants under their notify all Participants that prospectus that such responsibilities will be carried participation agreements governing disclosure regarding potential risks of out with a view only to the interests of participation in the Investment mixed and shared funding may be the Variable Contract owners or, as Companies, and these responsibilities appropriate. Each Investment Company appropriate, Qualified Plan participants. will be carried out with a view only to shall disclose in its prospectus that: (a) 4. If a majority of a Board, or a the interests of Variable Contract owners Its shares may be offered to insurance majority of its disinterested members or, as appropriate Qualified Plan company separate accounts of both (‘‘Independent Members’’), determines participants. variable annuity and variable life that a material irreconcilable conflict 5. A majority of Independent insurance contracts and to Qualified exists, the relevant Participant shall, at Members shall determine whether any Plans; (b) because of differences in tax its expense and to the extent reasonably proposed action adequately remedies treatment or other considerations, the practicable (as determined by a majority any irreconcilable material conflict, but interests of Variable Contract owners of Independent Members), take in no event will the relevant Investment investing in the Investment Company whatever steps are necessary to remedy Company or GEIM (or any other and the interests of Qualified Plans or eliminate the irreconcilable material investment adviser of the Investment investing in the Investment Company conflict, including: (a) Withdrawing the Companies) be required to establish a may conflict; and (c) its Board will assets allocable to some or all of the new funding medium for any variable monitor for any material conflicts and Separate Accounts from the Portfolios contract. No Participating Insurance determine what action, if any, should be and reinvesting those assets in a Company shall be required by this taken. different investment medium, which condition to establish a new funding 9. All reports received by the Board may include another portfolio of the medium for any Variable Contract if an regarding potential or existing conflicts, relevant Investment Company; (b) in the offer to do so has been declined by a and all action of the Board with respect case of Participating Insurance vote of a majority of Variable Contract to determining the existence of a Companies, submitting the question owners materially affected by the conflict, notifying Participants of a whether such segregation should be irreconcilable material conflict. conflict, and determining whether any implemented to a vote of all affected 6. The determination by a Board of proposed action adequately remedies a Variable Contract owners and, as the existence of an irreconcilable conflict, will be properly recorded in appropriate, segregating the assets of material conflict and its implications the minutes of the meetings of the Board any appropriate group (i.e., annuity shall be made known promptly in or other appropriate records. Such contract owners, life insurance contract writing to all Participants. minutes or other records shall be made owners, or Variable Contract owners of 7. Participating Insurance Companies available to the Commission upon one or more Participating Insurance will provide pass-through voting request. Company) that votes in favor of such privileges to all contract owners so long 10. If, and to the extent that, Rule 6e– segregation, or offering to the affected as the Commission continues to 2 or Rule 6e–3(T) is amended, or Rule contract owners the option of making interpret the 1940 Act as requiring pass- 6e–3 is adopted, to provide exemptive such a change; and (c) establishing a through voting privileges for variable relief from any provision of the 1940 new registered management investment insurance contract owners. Accordingly, Act or the rules thereunder with respect Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices 55341 to mixed and shared funding on terms For the Commission, by the Division of GSCC believes that its efforts to and conditions materially different from Investment Management, pursuant to enhance its system’s safety and capacity any exemptions granted in the order delegated authority. argue in favor of permanent approval. requested, then the Investment Margaret H. McFarland, For example, GSCC recently amended Companies and/or the Participants, as Deputy Secretary. its rules (1) to enable GSCC to enter into appropriate, shall take such steps as [FR Doc. 96–27390 Filed 10–24–96; 8:45 am] one or more limited cross guarantee may be necessary to comply with Rule BILLING CODE 8010±01±M agreements 6 and (2) to allow GSCC’s 6e–2 and Rule 6e–3(T), as amended, and interdealer broker netting members to Rule 6e–3, as adopted, to the extent [Release 34±37844; File No. 600±23] become eligible for GSCC’s repo netting such rules are applicable. service.7 In addition, GSCC represents Self-Regulatory Organizations; that it and the Board of Trade Clearing 11. Each Investment Company will Government Securities Clearing Corporation have made progress toward comply with all provisions of the 1940 Corporation; Notice of Filing of an establishing a cross-margining Act requiring voting by shareholders Application for Clearing Agency arrangement for the benefit of market (which, for these purposes, shall be the Registration participants that are active in both the persons having a voting interest in the cash and futures government markets. October 21, 1996. shares of the Investment Companies), GSCC also represents that it is working Notice is hereby given that on October and, in particular, will comply with with The Options Clearing Corporation 7, 1996, the Government Securities Section 16(a) and, if and when to establish a link with the Intermarket applicable, Section 16(b). Further, each Clearing Corporation (‘‘GSCC’’) filed with the Securities and Exchange Clearing Corporation for the settlement Investment Company will act in of certain new treasury futures products accordance with the interpretation of Commission (‘‘Commission’’) an application, pursuant to Sections 17A that will be offered by a futures the Commission of the requirements of exchange owned by the American Stock Section 16(a) with respect to periodic and 19(a) of the Securities Exchange Act of 1934 (‘‘Act’’),1 requesting that the Exchange. elections of directors and with whatever Commission grant GSCC full registration At the time of GSCC’s initial rules the Commission may adopt with as a clearing agency or in the alternative registration, the Commission granted respect thereto. extend GSCC’s temporary registration as GSCC exemptions from the fair 12. The Participants shall submit to a clearing agency until such time as the representation requirements in Section the Boards, at least annually, such Commission is able to grant GSCC 17A(b)(3)(C) of the Act.8 In its reports, materials or data as the Boards permanent registration.2 The Registration Letter, GSCC has requested may reasonably request so that the Commission is publishing this notice to that the Commission withdraw GSCC’s Boards may carry out fully the solicit comments from interested exemption from the fair representation obligations imposed upon them by these persons. requirements in Section 17A(b)(3)(C). stated conditions. Such reports, On May 24, 1988, the Commission GSCC believes that its current selection materials, and data shall be submitted approved pursuant to Sections 17A and process for its board of directors is more frequently if deemed appropriate 19(a) of the Act and Rule 17Ab2–1(c) equitable and assures members fair 3 by the Boards. The obligations of the promulgated thereunder the representation because any GSCC application of GSCC for registration as Participants to provide these reports, member may nominate candidates for a clearing agency for a period of three materials, and data upon reasonable election to GSCC’s board and may vote years.4 The Commission subsequently request of the Boards shall be a for candidates so nominated. The has extended GSCC’s registration until Commission is reviewing GSCC’s contractual obligation of the Participant 5 November 30, 1996. request to withdraw the exemption. under its participation agreement with GSCC provides clearance and an Investment Company. settlement services for its members, Interested persons are invited to 13. None of the Investment transactions in government securities. submit written data, views, and Companies will accept a purchase order GSCC offers its members services for arguments concerning the foregoing from a Plan if such purchase would next-day settling trades, forward settling application by November 15, 1996. Such make the Plan an owner of 10 percent trades, auction takedown activity, written data, views, and arguments will or more of the assets of an Investment repurchase transactions (‘‘repos’’), the be considered by the Commission in granting registration or instituting Company, unless such Qualified Plan multilateral netting of trades, the proceedings to determine whether executes a fund participation agreement novation of netted trades, and daily marking-to-the-market. In connection registration should be denied in with such Investment Company. A with GSCC’s clearance and settlement accordance with Section 19(a)(1) of the qualified Plan will execute an services, GSCC provides a centralized application containing an loss procedure and maintains margin to 6 Securities Exchange Act Release No. 37413 (July acknowledgment of this condition upon offset netting and settlement risks. 9, 1996), 61 FR 36945. its initial purchase of the shares of an 7 Securities Exchange Act Release No. 37482 (July Investment Company. 1 15 U.S.C. 78q–1, 78s(a) (1988). 25, 1996), 61 FR 40275. 2 Letter from Sal Ricca, President and Chief 8 In its order granting GSCC its initial temporary Conclusion Operating Officer, GSCC, to Richard Lindsey, approval, the Commission stated that while the Director, Division of Market Regulation, composition of GSCC’s Board of Directors For the reasons stated above, Commission (October 2, 1996) (‘‘Registration reasonably reflected GSCC’s anticipated initial Applicants assert that the requested Letter’’). membership, the Commission believed that it exemptions are appropriate in the 3 17 CFR 240.17Ab2–1 (1996). would be appropriate to defer to a later date its public interest and consistent with the 4 Securities Exchange Act Release No. 25740 (May determination of whether GSCC’s process for 24, 1988), 53 FR 19639. protection of investors and the purposes selecting its Board of Directors assures participants 5 Securities Exchange Act Release Nos. 29067 fair representation. This decision was based on the fairly intended by the policy and (April 11, 1991), 56 FR 15652; 32385 (June 3, 1993), fact that GSCC planned on expanding its services provisions of the 1940 Act. 58 FR 32405; 35787 (May 31, 1995), 60 FR 30324; during the temporary registration period and on the and 36508 (November 27, 1995), 60 FR 61719. uncertainty with regards to GSCC’s future participant base. 55342 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices

Act.9 Persons making written I. Self-Regulatory Organization’s A. Self-Regulatory Organization’s submissions should file six copies Statement of the Terms of Substance of Statement of the Purpose of, and thereof with the Secretary, Securities the Proposed Rule Change Statutory Basis for, the Proposed Rule and Exchange Commission, 450 Fifth The NASD proposes to modify NASD Change Street, N.W., Washington, D.C. 20549. Rule 4730(b)(4) 2 to provide that during The NASD is proposing to modify Reference should be made to File No. locked or crossed markets, the system SOES to provide that during locked or 600–23. Copies of the amended will execute orders in five-second crossed markets, the system will execute application for registration and all intervals against a locked or crossed orders in five-second intervals against a written comments will be available for market maker at the best price, locked or crossed market maker at the inspection at the Commission’s Public regardless of whether the market maker best price, regardless of whether the Reference Room, 450 Fifth Street, N.W., was responsible for the locked or market maker was responsible for the Washington, D.C. 20549. crossed condition. Below is the text of locked or crossed condition. Currently, For the Commission, by the Division of when markets are not locked or crossed, Market Regulation, pursuant to delegated the rule change. Proposed new language authority.10 is in italics. Deleted language is in SOES provides market makers with a 15-second period of time following their Margaret H. McFarland, brackets. receipt of a SOES execution report to Deputy Secretary. Marketplace Rules update their quotation before being [FR Doc. 96–27435 Filed 10–24–96; 8:45 am] * * * * * required to execute another order in that BILLING CODE 8010±01±M security through SOES. When the Rule 4730 Participation Obligations in market for a Nasdaq National Market SOES 3 [Release No. 34±37845; File No. SR±NASD± security is locked or crossed, however, 95±54] * * * * * SOES is currently designed so that the b. * * * market maker whose quotation is locked Self-Regulatory Organizations; Notice (4) At any time a locked or crossed or crossed will have SOES orders of Proposed Rule Change by the market, as defined in Part VI, Section representing shares equal to the SOES National Association of Securities 2(e) of Schedule D to the NASD By- minimum exposure limit 4 or the firm’s Dealers, Inc. Relating to a Modification Laws, exists for an NNM security, a exposure limit, whichever is greater, of the Operation of the Small Order Market Maker with a quotation for that executed by SOES against that market Execution System (``SOES'') During security in the Nasdaq System that is maker’s account without any delay Locked and Crossed Markets [causing the] locked or crossed [market] between SOES executions (‘‘locked and may have orders representing shares crossed market rule’’).5 Thus, in such October 21, 1996. equal to the minimum exposure limit or instances, unlike the operation of SOES Pursuant to Section 19(b)(1) of the the firm’s exposure limit, whichever is during non-locked or crossed markets, Securities Exchange Act of 1934 greater, executed by SOES for that the market maker’s account will receive (‘‘Act’’), 15 U.S.C. 78s(b)(1), notice is Market Maker’s account at its quoted SOES executions without any delay hereby given that on November 15, price if that price is the best price. between executions until its exposure 1995,1 the National Association of Those orders will be executed limit is exhausted. In addition, during Securities Dealers, Inc. (‘‘NASD’’ or irrespective of any preference indicated locked or crossed markets, SOES orders ‘‘Association’’) filed with the Securities by the Order Entry Firm. During locked are executed against market makers and Exchange Commission or crossed markets, SOES will execute whose quotations are locked or crossed (‘‘Commission’’ or ‘‘SEC’’) the proposed orders against those Market Makers that irrespective of any preference indicated rule change as described in Items I, II, are locked or crossed in predetermined by the SOES order entry firm. and III below, which Items have been time intervals. This period of time shall The locked and crossed market rule prepared by the NASD. The initially be established as five (5) was formulated by the NASD and Commission is publishing this notice to seconds, but may be modified upon approved by the SEC in response to the solicit comments on the proposed rule necessary Commission approval and operation of SOES during the October change from interested persons. 6 appropriate notification to SOES 1987 Market Break. Specifically, the participants. feature was added to remedy the situation where SOES would cease 9 * * * * * 15 U.S.C. 78s(a)(1) (1988). executing orders in locked and crossed 10 17 CFR 200.30–3(a)(16) (1996). 1 The NASD amended the proposed rule change II. Self-Regulatory Organization’s market situations. The feature was four times subsequent to its initial filing. Statement of the Purpose of, and designed to increase the accuracy of Amendment No. 4, filed October 16, 1996, changed Statutory Basis for, the Proposed Rule displayed quotations in NNM securities the narrative in the proposed rule change. Change by providing an incentive for market Amendment No. 3, filed October 2, 1996, replaced Amendment No. 2, which was filed September 23, In its filing with the Commission, the 1996. Amendment No. 2, in turn, replaced 3 Quotations are ‘‘locked’’ when the bid price NASD included statements concerning quoted by one market maker in a security equals the Amendment No. 1, which was filed August 5, 1996. the purpose of and basis for the The proposed rule change, as originally ask price quoted by another market maker in the submitted, would have provided market makers proposed rule change and discussed any same security. Quotations are ‘‘crossed’’ when the with a 15-second grace period following their comments it received on the proposed bid price quoted by one market maker in a security receipt of a SOES execution report during locked is greater than the ask price quoted by another rule change. The text of these statements market maker in the same security. and crossed markets in which to update their may be examined at the places specified quotation in that security before being required to 4 The minimum exposure limit for SOES is execute another SOES order in that security. The in Item IV below. The NASD has currently twice the maximum SOES order size for filing as amended would establish a 5 second grace prepared summaries, set forth in a given security. Thus, the minimum exposure limit period between SOES executions in locked and Sections A, B, and C below, of the most for a NNM security in the 1,000-share tier size is 2,000 shares. crossed markets. See Letter from Robert E. Aber, significant aspects of such statements. Vice President and General Counsel, The Nasdaq 5 See Rule 4730(b)(4). Stock Market to Katherine England, Assistant 6 See Securities Exchange Act Release No. 25791 Director, Division of Market Regulation, 2 NASD Manual, Marketplace Rules (CCH), Rule (June 9, 1988), 53 FR 22594 (order approving file Commission (October 2, 1996). 4730. No. SR–NASD–88–1). Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices 55343 makers to reduce the frequency and bid was announced for shares of the during locked and crossed market duration of locked and crossed markets. company. During a span of 3 minutes situations. The NASD believes this Unfortunately, in today’s trading and 12 seconds just after the stock proposal strikes a reasonable balance environment, the incentive created by opened, the market for CORD was between the needs to keep SOES the locked and crossed market rule to locked or crossed on six occasions for a available to small, retail investors avoid locked and crossed markets has total of 2 minutes and 3 seconds. During during times of market turbulence and been nullified by the volume and this 2 minutes and 3 seconds, 176 SOES to provide market makers with a velocity of orders received and executed executions occurred, with 170 of these meaningful incentive to update their during locked and crossed markets. As trades being for 1,000 shares and 6 for quotations so as to avoid locked and set forth below, the volume of orders 500 shares. SOES volume in CORD crossed markets, on the one hand, and executed through SOES during locked during the 3 minutes and 12 seconds the need to preserve the liquidity of the and crossed markets clearly illustrates was 220,000 shares and SOES volume Nasdaq market by not exposing market that the locked and crossed market rule during the 2 minutes and 3 seconds that makers to unwarranted risk simply operates to severely penalize rather than the market was locked or crossed was because their quote was locked or incentivise market makers when they 173,000 shares. This trading volume, crossed for a brief period of time or have caused a locked or crossed market. which took place in just two to three because they are actively adjusting their As a result, both the firm that caused the minutes, represents a substantial quotes to arrive at a new equilibrium locked or crossed market and the firm percentage of the average daily trading price level after a trading halt has been that is locked or crossed can be exposed volume in CORD for the six-month lifted or material news has been to high levels of risk. In sum, the period prior to October 19, 1995. disseminated, on the other hand. In rapidity with which massive amounts of Specifically, the average daily trading addition, the NASD notes that its SOES orders are received and executed volume in CORD from April 18, 1995 to proposal is consistent with the during locked and crossed markets October 18, 1995 was 383,569 shares. objectives underlying the locked and provides market makers no meaningful Thus, in just 3 minutes and 12 seconds crossed market rule because it still opportunity to rectify locked and on October 19, 1995, SOES order entry ensures that SOES will be in operation crossed market situations until after firms executed 57.3 percent of CORD’s when markets are locked or crossed and they have executed significant volume average daily trading volume for the it still ensures that market makers will through SOES. prior six months; and in just 2 minutes have a meaningful incentive to unlock More specifically, since the locked and 3 seconds SOES order entry firms markets quickly because they will and crossed market rule was executed 45.1 percent of CORD’s receives SOES executions every 5 implemented, there have been many average daily trading volume for the seconds if their quotes are locked or instances where market makers have prior six months. Following are several crossed. At the same time, just as is the received numerous, instantaneous SOES illustrative examples of SOES activity case when markets are not locked or executions in the fleeting time period during these instances. crossed, market makers will be afforded during which their quotes were locked • A total of 13 trades for 13,000 a brief period of time to update their or crossed. The rule was intended to shares were executed when the market quotes without being subjected to operate as an incentive for market was locked for just 7 seconds. Of these potentially high risk exposure, thereby makers to avoid locked and crossed 13 executions, 6 were against one firm promoting a more orderly realignment markets; however, that incentive has for 6,000 shares during a 3-second of quotations in locked and crossed been dissimulated and the rule is now period and 4 of them occurred within market situations. In sum, the NASD being used by active SOES order entry one second. believes the detriment to the market firms to execute significant volume • A total of 21 executions for 20,500 through SOES against market markers shares occurred when the market was created by the current configuration of that have caused locked or crossed crossed for just 9 seconds. Of these 21 SOES during locked and crossed markets, or whose quotes have been executions, 6 were against one firm, 4 markets could be minimized by adding locked or crossed by another market were against another, and two firms the 5-second interval between SOES maker, before they have had an each received three executions. In executions, without compromising the opportunity to respond and rectify the addition, the firm that received 6 access of small investors to market locked or crossed market condition. In executions received 5 of them for 4,500 maker quotes and without eliminating the NASD’s view, the rule can only shares within two seconds. the incentive for market makers to not operate as a true incentive to avoid • A total of 5 executions for 4,500 lock or cross markets. locked and crossed markets when shares occurred when the market was For the above reasons, the NASD market makers have a reasonable locked for just 3 seconds. Of these 5 believes that the proposed rule change opportunity to react to SOES executions, 3 occurred against the same is consistent with Sections 15A(b)(6), transactions executed against them firm within 2 seconds for 3,000 shares. 15A(b)(9), 15A(b)(11) and 15A(a)(1)(C) during a locked or crossed market The NASD believes that this type of of the Act and Rule 11Ac1–1 situation. Presently, by the time a trading activity through SOES exposes thereunder. Among other things, market maker realizes it needs to update market makers to high levels of risk that, Section 15A(b)(6) requires that the rules its quote, its exposure limit often is in turn, seriously undermines the of a national securities association be unknowingly exhausted. viability of the Nasdaq market and the designed to prevent fraudulent and The profound risks that market commitment of market making capital to manipulative acts and practices, to markers are exposed to because of the NNM issues. Accordingly, the NASD promote just and equitable principles of locked and crossed market rule are and Nasdaq believe it is appropriate to trade, to foster cooperation and dramatically illustrated by the trading limit the potentially high risk exposure coordination with persons engaged in activity that occurred through SOES on of market makers in locked and crossed regulating, clearing, settling, processing Thursday morning, October 19, 1995, in market situations by modifying SOES to information with respect to, and Cordis Corporation (CORD). On this afford market makers a 5-second period facilitating transactions in securities, to day, the opening in CORD was delayed to update their quotes after they have remove impediments to and perfect the until 11:15 because a hostile takeover received a SOES execution report mechanism of a free and open market 55344 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices and a national market system and in execution of securities transactions; (ii) Accordingly, since SOES market makers general to protect investors and the fair competition among brokers and will not in any way be relieved of any public interest. Specifically, the NASD dealers; and (iii) the practicality of of their firm quote obligations under the believes its proposal will promote a brokers executing investor orders in the proposal, the NASD believes the more orderly realignment of quotations best market. Specifically, the NASD proposed rule change is wholly during locked and crossed markets by believes the proposed 5-second interval consistent with the SEC’s Firm Quote affording market makers whose after SOES executions during locked Rule. quotations are locked or crossed a 5- and crossed markets will advance each B. Self-Regulatory Organization’s second interval to react to SOES orders of these objectives by preserving the Statement on Burden on Competition that they have already automatically operational efficiencies of SOES in the executed, wholly consistent with the processing of small investor’s orders. The NASD believes that the proposed operation of SOES during times when Finally, consistent with the SEC’s rule change will not result in any markets are not locked or crossed. In finding that the 15-second interval is burden on competition that is not addition, because market makers will consistent with the SEC’s Firm Quote necessary or appropriate in furtherance still be obligated to execute SOES orders Rule during regular market conditions, of the purposes of the Act. during locked and crossed markets at 5- the NASD believes its proposal to C. Self-Regulatory Organization’s second intervals, market makers will extend a 5-second interval during Statement of Comments on the still have an incentive to rectify locked locked and crossed markets is likewise Proposed Rule Change Received From and crossed market situations. Finally, consistent with the Firm Quote Rule. Members, Participants or Others because SOES will continue to execute Specifically, when the SEC approved trades during locked and crossed the 15-second interval with respect to Comments were neither solicited nor markets, small, retail investors will regular market conditions, it stated that received. continue to have immediate access to it was: III. Date of Effectiveness of the the best prices available on Nasdaq Consistent with the requirements of the Proposed Rule Change and Timing for during locked and crossed markets. SEC’s Firm Quote Rule which requires that Commission Action Section 15A(b)(9) provides that the brokers and dealers execute orders to buy Within 35 days of the date of rules of the Association may not impose and sell securities at their published quotes any burden on competition not unless communicating a revised bid or offer publication of this notice in the Federal necessary or appropriate in furtherance or unless updating their quotations in Register or within such longer period (i) of the purposes of the Act. The response to an execution. The proposed 15- as the Commission may designate up to second update period in no way diminishes 90 days of such date if it finds such proposed 5-second interval after SOES the requirement that market makers maintain executions during locked and crossed longer period to be appropriate and firm quotes and be willing to execute at those publishes its reasons for so finding or markets will apply across the board and quotes. The 15-second update period only not target any particular SOES user or (ii) as to which the NASD consents, the will be in effect in response to an execution Commission will: participant. Accordingly, the NASD and only serves to provide market makers A. By order approve such proposed believes that its proposal is not anti- time to react to that execution and adjust their positions, if necessary. Market makers rule change, or competitive, as it is uniform in B. Institute proceedings to determine application and it seeks to preserve the will continue to be required to execute customer orders quickly and efficiently.7 whether the proposed rule change ability of SOES to provide fair and The NASD believes that the should be disapproved. efficient automated executions for small Commission’s legal analysis and investor orders, while preserving market IV. Solicitation of Comments statutory finding that the 15-second maker participation in SOES and market interval is consistent with the Firm Interested persons are invited to liquidity. Quote Rule applies with equal force to submit written data, views, and Section 15A(b)(11) empowers the arguments concerning the foregoing. NASD to adopt rules governing the form the proposed rule change. Indeed, nowhere in the SEC’s Firm Quote Rule Persons making written submissions and content of quotations relating to should file six copies thereof with the securities in the Nasdaq market. Such does it provide that market makers are ineligible to avail themselves of the Secretary, Securities and Exchange rules must be designed to produce fair Commission, 450 Fifth Street, N.W., and informative quotations, prevent exceptions to the Rule because a market is locked or crossed. In fact, under Rule Washington, D.C. 20549. Copies of the fictitious and misleading quotations, submission, all subsequent and promote orderly procedures for 11Ac1–1(b)(3)(C), when there is a level of trading activity or the existence of amendments, all written statements collecting and distributing quotations. with respect to the proposed rule Because the proposed rule change will unusual market conditions such that an exchange is incapable of collecting, change that are filed with the facilitate a more orderly reaction to and Commission, and all written rectification of locked and crossed processing, and making available quotations in a manner which communications relating to the markets, the NASD believes the rule proposed rule change between the change will enhance the integrity and accurately reflects the current state of the market on the floor of an exchange, Commission and any person, other than soundness of quotations in NNM those that may be withheld from the securities. that exchange may relieve its market makers of their firm quote obligations.8 public in accordance with the In addition, the NASD believes that provisions of 5 U.S.C. 552, will be the proposed rule change is consistent 7 available for inspection and copying in with significant national market system See Securities Exchange Act Release No. 29801 (October 10, 1991), 56 FR 52098. the Commission’s Public Reference objectives contained in Section 8 Because only exchanges can declare fast market Room. Copies of such filing will also be 11A(a)(1)(C) of the Act. This provision conditions under the Firm Quote Rule, the same available for inspection and copying at states it is in the public interest and market event (i.e., a locked or crossed market) can the principal office of the NASD. All appropriate for the protection of presently result in dramatically different regulatory requirements for similarly situated market investors and the maintenance of fair participants. Specifically, under SOES, exceptions specialists may be entirely relieved of their firm and orderly markets to assure, among from the Firm Quote Rule are eliminated when quote obligations during locked and crossed other things: (i) economically efficient markets are locked or crossed, while exchange markets. Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices 55345 submissions should refer to SR–NASD– A. Self-Regulatory Organization’s reflect certain events relating to the 94–54 and should be submitted by Statement of the Purpose of, and component stocks. These events November 15, 1996. Statutory Basis for, the Proposed Rule include, but are not limited to, changes Change in the number of shares outstanding, For the Commission, by the Division of spin-offs, certain rights issuances, and Market Regulation, pursuant to delegated 1. Purpose. The Exchange is mergers and acquisitions. authority.9 proposing to list and trade cash-settled, The composition of the Index will be Margaret M. McFarland, European-style stock index options on the Dow Jones & Co. Taiwan Index. The reviewed periodically and Dow Jones & Deputy Secretary. Index is comprised of 113 representative Co. may make component changes at [FR Doc. 96–27434 Filed 10–24–96; 8:45 am] stocks traded on the Taiwan Stock any time to ensure that the Index BILLING CODE 8010±01±M Exchange (‘‘TSE’’).3 The Exchange continues to represent the overall represents that the Index is character of the Taiwanese equity representative of the Taiwan stock market. When considering replacement [Release No. 34±37842; File No. SR±PSE± market as a whole, and therefore, is stocks, Dow Jones & Co. will choose 96±40] deemed to be a broad-based index. from among the most heavily capitalized and actively traded stocks Self-Regulatory Organizations; Notice Index Design on the TSE. In addition, Dow Jones & of Filing of Proposed Rule Change by The Index was designed by, and is Co. will consider other factors including the Pacific Stock Exchange, Inc., maintained by, Dow Jones & Co. The industry grouping, level of foreign Relating to Index Options on the Dow 113 stocks comprising the Index were accessibility (i.e., whether foreigners Jones & Co. Taiwan Index selected for their market weight, trading may purchase the stock), name liquidity, and representation of the recognition, and volatility. October 18, 1996. business industries reflected on the Index Option Trading TSE. The Exchange believes that these Pursuant to Section 19(b)(1) of the The Exchange proposes to base Securities Exchange Act of 1934 stocks reflect the industrial composition of the broader Taiwanese equity market. trading in options on the Index on the (‘‘Act’’ 1 and Rule 19b–4 thereunder,2 The Index is weighted by the market full value of the Index as expressed in notice is hereby given that on October capitalization of the component stocks. U.S. dollars. The Exchange also may 17, 1996, the Pacific Stock Exchange, As of August 30, 1996, the market provide for the listing of long-term Inc. (‘‘PSE’’ or ‘‘Exchange’’) filed with capitalization of the Index was US$181 index option series (‘‘LEAPS’’) on the the Securities and Exchange billion (at the exchange rate of NT $27.5 Index. The Exchange will list expiration Commission (‘‘Commission’’) the per dollar). The average market months for Index options and Index proposed rule change as described in capitalization of these stocks was $1.6 LEAPS in accordance with PSE Rule Items I, II, and III below, which Items billion on the same date (at the same 7.8. have been prepared by the self- rate of exchange). The individual market The trading hours for options on the regulatory organization. The capitalization of these stocks ranged Index will be from 6:30 a.m. Pacific time Commission is publishing this notice to from $150 million (Hong Ho Precision to 1:15 p.m. Pacific time. Dow Jones solicit comments on the proposed rule Textile Co.) to $18.6 billion (Cathay Life Telerate (‘‘Telerate’’) will calculate the change from interested persons. Insurance) on the same date. The largest value of the Index every fifteen seconds throughout the trading day and I. Self-Regulatory Organization’s stock accounted for 10.26% of the disseminate the Index value through the Statement of the Terms of Substance of Index, while the smallest accounted for Options Price Reporting Authority the Proposed Rule Change .08%. The top five stocks in the Index, by weight, accounted for approximately (‘‘OPRA’’). The PSE, pursuant to Rule 19b–4 of 31% of the Index. The average daily The Exchange is proposing to the Act, proposes to list for trading trading volume of the component establish position limits for Index index options on the Dow Jones & Co. securities for the period April 1 through options equal to 50,000 contracts on the Taiwan Index (‘‘Index’’). August 30, 1996, ranged from a low of same side of the market, with no more 457,091 shares (Hsing Ta Cement Co.) to than 30,000 contracts in the series with II. Self-Regulatory Organization’s a high of 49,879,418 shares (China the nearest expiration date. These limits Statement of the Purpose of, and Steel), with an average daily trading are roughly equivalent, in dollar terms, Statutory Basis for, the Proposed Rule volume for all components of the Index to the limits applicable to options on Change of approximately 7,698,763 shares. other indices. Furthermore, the hedge exemption rule applicable to broad- In its filing with the Commission, the Calculation and Maintenance of Index based index options, Commentary .02 to self-regulatory organization included The value of the Index is determined PSE Rule 7.6, will apply to Index statements concerning the purpose of by multiplying the price of each stock options. and basis for the proposed rule change by its number of shares outstanding, The PSE also represents that it has the and discussed any comments it received adding those sums, and then dividing necessary systems capacity to support on the proposed rule change. The text by a divisor which gives the Index a new series that would result from the of these statements may be examined at value of 100 on its base date of introduction of the Index options. the places specified in Item IV below. December 31, 1991. The Index had a Exercise and Settlement The self-regulatory organization has closing value of 160.33 on August 30, prepared summaries, set forth in 1996. The Index will be maintained by The proposed options on the Index Sections A, B, and C below, of the most Dow Jones & Co. and, in order to will expire on the Saturday following significant aspects of such statements. maintain continuity of the Index, the the third Friday of the expiration divisor of the Index will be adjusted to month, and trading in the expiring 9 17 CFR 200.30–3(a)(12) (1989). contract month on the PSE will 1 15 U.S.C. § 78s(b)(1) (1988). 3 A list of index components is available at the normally cease on Friday at 1:15 p.m. 2 17 CFR 240.19b–4. Commission and at the PSE. Pacific time unless a holiday occurs. 55346 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices

The exercise settlement value of Index which the self-regulatory organization XVI of the Act for 1997 to $484 for an options at expiration will be determined consents, the Commission will: eligible individual, $726 for an eligible from closing prices established at the A. by order approve the proposed rule individual with an eligible spouse, and close of the regular Friday trading change, or $242 for an essential person; sessions in Taiwan. If a stock does not B. institute proceedings to determine (3) The national average wage index trade during this interval or if it fails to whether the proposed rule change for 1995 to be $24,705.66; open for trading, the last available price should be disapproved. (4) The Old-Age, Survivors, and of the stock will be used in the Disability Insurance (OASDI) IV. Solicitation of Comments calculation of the Index. When contribution and benefit base to be expirations are removed in accordance Interested persons are invited to $65,400 for remuneration paid in 1997 with Exchange holidays, such as when submit written data, views, and and self-employment income earned in the PSE is closed on the Friday before arguments concerning the foregoing. taxable years beginning in 1997; expiration, the last trading day for Persons making written submissions (5) For beneficiaries under age 65, the expiring options will be Thursday and should file six copies thereof with the monthly exempt amount under the the exercise settlement value of Index Secretary, Securities and Exchange Social Security retirement earnings test options at expiration will be determined Commission, 450 Fifth Street, N.W., for taxable years ending in calendar year at the close of the regular Thursday Washington, D.C. 20549. Copies of the 1997 to be $720; trading sessions in Taiwan even if the submission, all subsequent (6) The dollar amounts (‘‘bend Taiwanese markets are open on Friday. amendments, all written statements points’’) use in the benefit formula for If the Taiwanese markets are closed on with respect to the proposed rule workers who become eligible for the Friday before expiration but the PSE change that are filed with the benefits in 1997 and in the formula for is open for trading, the last trading day Commission, and all written computing maximum family benefits; for expiring options will similarly be communications relating to the (7) The amount of earnings a person Thursday, with the exercise settlement proposed rule change between the must have to be credited with a quarter value being determined from Thursday Commission and any person, other than of coverage in 1997 to be $670; closing prices on the TSE. those that may be withheld from the (8) The ‘‘old-law’’ contribution and public in accordance with the benefit base to be $48,600 for 1997; Surveillance provisions of 5 U.S.C. § 552, will be (9) The monthly amount of substantial The Exchange will apply its existing available for inspection and copying at gainful activity applicable to statutorily index option surveillance procedures to the Commission’s Public Reference blind individuals in 1997 to be $1,000; Index options. In addition, the Exchange Section, 450 Fifth Street, N.W., (10) The domestic worker coverage has entered into a surveillance sharing Washington, D.C. 20549. Copies of such threshold to be $1,000 for 1997; and agreement with the TSE, which will filing also will be available for (1) The OASDI fund ration to be 139.9 enable the Exchange to obtain inspection and copying at the principal percent for 1996. information concerning the trading of office of the PSE. All submissions FOR FURTHER INFORMATION CONTACT: the component stocks of the Index. should refer to File No. SR–PSE–96–40 Jeffrey L. Kunkel, Office of the Actuary, 2. Statutory basis. The PSE believes and should be submitted by November Social Security Administration, 6401 that the proposed rule change is 15, 1996. Security Boulevard, Baltimore, MD consistent with Section 6(b)(5) of the For the Commission, by the Division of 21235, (410) 965–3013. A summary of Act in that it is designed to facilitate Market Regulation, pursuant to delegated the information in this announcement is authority.4 transactions in securities as well as to available in a recorded message by protect investors and the public interest. Margaret H. McFarland, telephoning (410) 965–3053. This Deputy Secretary. telephone message will be updated to B. Self-Regulatory Organization’s [FR Doc. 96–27389 Filed 10–24–96; 8:45 am] reflect changes to the cost-of-living Statement on Burden on Competition BILLING CODE 8010±01±M benefit increase and other The self-regulatory organization does determinations. Information relating to not believe that the proposed rule this announcement is also available on change will impose any inappropriate SOCIAL SECURITY ADMINISTRATION the Social Security Administration’s burden on competition. World Wide Web server—http:// Office of the Commissioner www.ssa.gov/OACT/COLA/ C. Self-Regulatory Organization’s FR.sum.html. Statement on Comments on the 1997 Cost-of-Living Increase and Other SUPPLEMENTARY INFORMATION: The Proposed Rule Change Received From Determinations Commissioner is required by the Act to Members, Participants, or Others AGENCY: Office of the Commissioner, publish within 45 days after the close of No written comments were solicited Social Security Administration. the third calendar quarter of 1996 the or received with respect to the proposed ACTION: Notice. benefit increase percentage and the rule change. revised table of ‘‘special minimum’’ SUMMARY: benefits (section 215(i)(2)(D)). Also, the III. Date of Effectiveness of the The Commissioner has Commissioner is required to publish on Proposed Rule Change and Timing for determined— or before November 1 the national Commission Action (1) A 2.9 percent cost-of-living increase in Social Security benefits average wage index for 1995 (section Within 35 days of the publication of under title II of the Social Security Act 215(a)(1)(D)), the OASDI fund ration for this notice in the Federal Register or (the Act), effective for December 1996; 1996 (section 215(i)(2)(C)(ii)), the within such longer period (i) as the (2) An increase in the Federal OASDI contribution and benefit base for Commission may designate up to 90 Supplemental Security Income (SSI) 1997 (section 230(a)), the amount of days of such date if it finds such longer monthly benefit amounts under title earnings required to be credited with a period to be appropriate and publishes quarter of coverage in 1997 (section its reasons for so finding, or (ii) as to 417 CFR 200.30–3(a)(12). 213(d)(2)), the monthly exempt amounts Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices 55347 under the Social Security retirement amounts of all other individuals entitled benefits for December 1996 which are earnings test for 1997 (section under title II of the Act, and to increase payable on January 3, 1997. In the case 203(f)(8)(A)), the formula for computing maximum benefits payable to a family. of first eligibility after 1996, the 2.9 a primary insurance amount for workers For December 1996, the benefit increase percent increase will not apply. who first become eligible for benefits or is the percentage increase in the For eligibility after 1978, benefits are die in 1997 (section 215(a)(1)(D)), and Consumer Price Index for Urban Wage generally determined by a benefit the formula for computing the Earners and Clerical Workers from the formula provided by the Social Security maximum amount of benefits payable to third quarter of 1995 through the third Amendments of 1977 (Pub. L. 95–216), the family of a worker who first quarter of 1996. as described later in this notice. Section 215(i)(1) of the Act provides becomes eligible for old-age benefits or For eligibility before 1979, benefits dies in 1997 (section 203(a)(2)(C)). that the Consumer Price Index for a cost-of-living computation quarter shall are determined by means of a benefit Cost-of-Living Increases be the arithmetic mean of this index for table. A copy of this table may be General. The cost-of-living increase is the 3 months in that quarter. The obtained by writing to: Social Security 2.9 percent for benefits under titles II arithmetic mean is rounded, if Administration, Office of Public and XVI of the Act. necessary, to the nearest 0.1. The Inquiries, 4100 Annex, Baltimore, MD Under title II, OASDI benefits will Department of Labor’s Consumer Price 21235. increase by 2.9 percent beginning with Index for Urban Wage Earners and Section 215(i)(2)(D) of the Act the December 1996 benefits, which are Clerical Workers for each month in the requires that, when the Commissioner payable on January 3, 1997. This quarter ending September 30, 1995, was: determines an automatic increase in increase is based on the authority for July 1995, 149.9; for August 1995, Social Security benefits, the contained in section 215(i) of the Act 150.2; and for September 1995, 150.6. Commissioner shall publish in the (42 U.S.C. 415(i)). The arithmetic mean for this calendar Federal Register a revision of the range Under title XVI, Federal SSI payment quarter is 150.2. The corresponding of the primary insurance amounts and levels will also increase by 2.9 percent Consumer Price Index for each month in corresponding maximum family benefits effective for payments made for the the quarter ending September 30, 1996, based on the dollar amount and other month of January 1997 but paid on was: for July 1996, 154.3; for August provisions described in section December 31, 1996. This is based on the 1996, 154.5; and for September 1996, 215(a)(1)(C)(i). These benefits are authority contained in section 1617 of 155.1. The arithmetic mean for this referred to as ‘‘special minimum’’ the Act (42 U.S.C. 1382f). The calendar quarter is 154.6. Thus, because benefits and are payable to certain percentage increase effective January the Consumer Price Index for the individuals with long periods of 1997 is the same as the title II calendar quarter ending September 30, relatively low earnings. To qualify for percentage increase and the annual 1996, exceeds that for the calendar such benefits, an individual must have payment amount is rounded, when not quarter ending September 30, 1995 by at least 11 ‘‘years of coverage.’’ To earn a multiple of $12, to the next lower 2.9 percent, a cost-of-living benefit a year of coverage for purposes of the multiple of $12. increase of 2.9 percent is effective for special minimum, a person must earn at Automatic Benefit Increase benefits under title II of the Act least a certain proportion (25 percent for Computation. Under section 215(i) of beginning December 1996. years before 1991, and 15 percent for the Act, the third calendar quarter of Title II Benefit Amounts. In years after 1990) of the ‘‘old-law’’ 1996 is a cost-of-living computation accordance with section 215(i) of the contributions and benefit base. In quarter for all the purposes of the Act. Act, in the case of insured workers and accordance with section 215(a)(1)(C)(i), The Commissioner is, therefore, family members for whom eligibility for the table below shows the revised range required to increase benefits, effective benefits (i.e., the worker’s attainment of of primary insurance amounts and with December 1996, for individuals age 62, or disability or death before age corresponding maximum family benefit entitled under section 227 or 228 of the 62) occurred before 1997, benefits will amounts after the 2.9 percent benefit Act, to increase primary insurance increase by 2.9 percent beginning with increase.

SPECIAL MINIMUM PRIMARY INSURANCE AMOUNTS AND MAXIMUM FAMILY BENEFITS

Special mini- mum primary Special mini- Number of insurance mum family Special minimum primary insurance amount payable for Dec. 1996 years of cov- amount pay- benefit pay- erage able for Dec. able for Dec. 1996 1996

$26.40 ...... 11 $27.10 $40.90 52.80 ...... 12 54.30 82.10 79.70 ...... 13 82.00 123.30 106.20 ...... 14 109.20 164.30 132.80 ...... 15 136.60 205.00 159.50 ...... 16 164.10 246.70 186.20 ...... 17 191.50 287.90 212.90 ...... 18 219.00 328.90 239.50 ...... 19 246.40 370.10 266.00 ...... 20 273.70 411.10 293.00 ...... 21 301.40 452.50 319.40 ...... 22 328.60 493.60 346.30 ...... 23 356.30 535.30 373.00 ...... 24 383.80 576.20 399.60 ...... 25 411.10 617.00 55348 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices

SPECIAL MINIMUM PRIMARY INSURANCE AMOUNTS AND MAXIMUM FAMILY BENEFITSÐContinued

Special mini- mum primary Special mini- Number of insurance mum family Special minimum primary insurance amount payable for Dec. 1996 years of cov- amount pay- benefit pay- erage able for Dec. able for Dec. 1996 1996

426.50 ...... 26 438.80 658.90 453.10 ...... 27 466.20 699.90 479.60 ...... 28 493.50 740.80 506.20 ...... 29 520.80 782.10 532.90 ...... 30 548.30 823.00

Section 227 of the Act provides flat- would serve the interest of the calculated directly from this data were rate benefits to a worker who became individual because the individual has $22,786.73 and $23,700.11 for 1994 and age 72 before 1969 and was not insured an alcoholism or drug addiction 1995, respectively. To determine the under the usual requirements, and to his condition and is incapable of managing national average wage index for 1995 at or her spouse or surviving spouse. such benefits). The dollar fee limits are a level that is consistent with the Section 228 of the Act provides similar subject to increase by the automatic national average wage indexing series benefits at age 72 for certain uninsured cost-of-living increase, with the for 1951 through 1977 (published persons. The current monthly benefit resulting amounts rounded to the December 29, 1978, at 43 FR 61016), the amount of $193.40 for an individual nearest whole dollar amount. The 1994 national average wage index of under sections 227 and 228 of the Act current amounts are thus increased by $23,753.53 is multiplied by the is increased by 2.9 percent to obtain the 2.9 percent to $26 and $51 for 1997. percentage increase in average wages new amount of $199.00. The present National Average Wage Index for 1995 from 1994 to 1995 (based on SSA- monthly benefit amount of $96.70 for a tabulated wage data) as follows (with spouse under section 227 is increased General. Under various provisions of the result rounded to the nearest cent): by 2.9 percent to $99.50. the Act, several amounts are scheduled Amount. The national average wage Title XVI Benefit Amounts. In to increase automatically for 1997 based index for 1995 is $23,753.53 times accordance with section 1617 of the Act, on the annual increase in the national $23,700.11 divided by $22,786.73, Federal SSI benefit amounts for the average wage index. The amounts are (1) which equals $24,705.66. Therefore, the aged, blind, and disabled are increased the OASDI contribution and benefit national average wage index for by 2.9 percent effective January 1997. base, (2) the retirement test exempt calendar year 1995 is determined to be Therefore, the yearly Federal SSI benefit amount for beneficiaries under age 65, $24,705.66. amounts of $5,640 for an eligible (3) the dollar amounts, or ‘‘bend individual, $8,460 for an eligible points,’’ in the primary insurance OASDI Contribution and Benefit Base individual with an eligible spouse, and amount and maximum family benefit General. The OASDI contribution and $2,820 for an essential person, which formulas, (4) the amount of earnings benefit base is $65,400 for remuneration became effective January 1996, are required for a worker to be credited with paid in 1997 and self-employment increased, effective January 1997, to a quarter of coverage, (5) the ‘‘old law’’ income earned in taxable years $5,808, $8,712, and $2,904, respectively, contribution and benefit base (as beginning in 1997. after rounding. The corresponding determined under section 230 of the Act The OASDI contribution and benefit monthly amounts for 1997 are as in effect before the 1977 base serves two purposes: determined by dividing the yearly amendments), and (6) the substantial (a) It is the maximum annual amount amounts by 12, giving $484, $726, and gainful activity amount applicable to of earnings on which OASDI taxes are $242, respectively. The monthly amount statutorily blind individuals. Section paid. The OASDI tax rate for is reduced by subtracting monthly 3121(x) of the Internal Revenue Code remuneration paid in 1997 is set by countable income. In the case of an requires that the domestic employee statute at 6.2 percent for employees and eligible individual with an eligible coverage threshold be based on changes employers, each. The OASDI tax rate for spouse, the amount payable is further in the national average wage index. The self-employment income earned in divided equally between the two threshold, however, does not increase taxable years beginning in 1997 is 12.4 spouses. for 1997. percent. (The Hospital Insurance tax is Fee for Services Performed as a Computation. The determination of due on remuneration, without Representative Payee. Sections the national average wage index for limitation, paid in 1997, at the rate of 205(j)(4)(A)(i) and 1631 (a)(2)(D)(i) of calendar year 1995 is based on the 1994 1.45 percent for employees and the Act permit a qualified organization national average wage index of employers, each, and on self- to collect from an individual a monthly $23,753.53 announced in the Federal employment income earned in taxable fee for expenses incurred in providing Register on October 25, 1995 (60 FR years beginning in 1997, at the rate of services performed as such individual’s 54751), along with the percentage 2.9 percent.) representative payee. Currently the fee increase in average wages from 1994 to (b) It is the maximum annual amount is limited to the lesser of (1) 10 percent 1995 measured by annual wage data used in determining a person’s OASDI of the monthly benefit involved, or (2) tabulated by the Social Security benefits. $25 per month ($50 per month in any Administration (SSA). The wage data Computation. Section 230(b) of the case in which the individual is entitled tabulated by SSA include contributions Act provides the formula used to to disability benefits and the to deferred compensation plans, as determine the OASDI contribution and Commissioner has determined that required by section 209(k) of the Act. benefit base. Under the formula, the payment to the representative payee The average amounts of wages base for 1997 shall be equal to the larger Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices 55349 of (1) the current base ($62,700) or (2) a multiple of $10, it shall be rounded to computed and used to determine the the 1994 base of $60,600 multiplied by the nearest multiple of $10. worker’s primary insurance amount for the ratio of the national average wage Exempt Amount for Beneficiaries 1997. index for 1995 to that for 1992. If the Under Age 65. Multiplying the 1994 Computing the Primary Insurance amount so determined is not a multiple retirement earnings test monthly exempt Amount. The primary insurance amount of $300, it shall be rounded to the amount of $670 by the ratio 1.0771837 is the sum of three separate percentages nearest multiple of $300. produces the amount of $721.71. This of portions of the average indexed Amount. The ratio of the national must then be rounded to $720. Because monthly earnings. In 1979 (the first year average wage index for 1995, $24,705.66 $720 is larger than the corresponding the formula was in effect), these as determined above, compared to that current exempt amount of $690, the portions were the first $180, the amount for 1992, $22,935.42, is 1.0771837. retirement earnings test monthly exempt between $180 and $1,085, and the Multiplying the 1994 OASDI amount for beneficiaries under age 65 is amount over $1,085. The dollar amounts contribution and benefit base amount of thus determined to be $720 for 1997. in the formula which govern the $60,600 by the ratio of 1.0771837 The corresponding retirement earnings portions of the average indexed monthly produces the amount of $65,277.33 test annual exempt amount for these earnings are frequently referred to as the which must then be rounded to $65,400. beneficiaries is $8,640. ‘‘bend points’’ of the formula. Thus, the Because $65,400 exceeds the current Computing Benefits After 1978 bend points for 1979 were $180 and base amount of $62,700, the OASDI $1,085. contribution and benefit base is General. The Social Security The bend points for 1997 are obtained determined to be $65,400 for 1997. Amendments of 1977 provided a by multiplying the corresponding 1979 method for computing benefits which bend-point amounts by the ratio Retirement Earnings Test Exempt generally applies when a worker first Amounts between the national average wage becomes eligible for benefits after 1978. index for 1995, $24,705.66, and for General. Social Security benefits are This method uses the worker’s ‘‘average 1977, $9,779.44. These results are then withheld when a beneficiary under age indexed monthly earnings’’ to compute rounded to the nearest dollar. For 1997, 70 has earnings in excess of the the primary insurance amount. The the ratio is 2.5262858. Multiplying the retirement earnings test exempt amount. computation formula is adjusted 1979 amounts of $180 and $1,085 by Since 1978, higher exempt amounts automatically each year to reflect 2.5262858 produces the amounts of have applied to beneficiaries aged 65 changes in general wage levels, as $454.73 and $2,741.02. These must then through 69 compared to those under age measured by the national average wage be rounded to $455 and $2,741. 65. Formulas for determining the index. Accordingly, the portions of the average monthly exempt amounts are provided A worker’s earnings are adjusted, or indexed monthly earnings to be used in in section 203(f)(8)(B) of the Act, as ‘‘indexed,’’ to reflect the change in 1997 are determined to be the first $455, amended by section 102 of the ‘‘Senior general wage levels that occurred during the amount between $455 and $2,741, Citizens’ Right to Work Act of 1996,’’ the worker’s years of employment. Such and the amount over $2,741. Title I of Pub. L. 104–121. This indexation ensures that a worker’s Consequently, for individuals who amendment set the annual exempt future benefits reflect the general rise in first become eligible for old-age amount for beneficiaries aged 65 the standard of living that occurs during insurance benefits or disability through 69 to $12,500 for 1996, $13,500 his or her working lifetime. A certain insurance benefits in 1997, or who die for 1997, $14,500 for 1998, $15,500 for number of years of earnings are needed in 1997 before becoming eligible for 1999, $17,000 for 2000, $25,000 for to compute the average indexed benefits, their primary insurance 2001, and $30,000 for 2002. The monthly earnings. After the number of amount will be the sum of: corresponding monthly exempt amounts years is determined, those years with (a) 90 percent of the first $455 of their are exactly one-twelfth of the annual the highest indexed earnings are chosen, average indexed monthly earnings, plus amounts. After 2002, the monthly the indexed earnings are summed, and (b) 32 percent of the average indexed exempt amount for this group of the total amount is divided by the total monthly earnings over $455 and beneficiaries will increase under the number of months in those years. The through $2,741, plus applicable formula. resulting average amount is then (c) 15 percent of the average indexed For beneficiaries aged 65 through 69, rounded down to the next lower dollar monthly earnings over $2,741. $1 in benefits is withheld for every $3 amount. The result is the average This amount is then rounded to the of earnings in excess of the annual indexed monthly earnings. next lower multiple of $.10 if it is not exempt amount. For beneficiaries under For example, to compute the average already a multiple of $.10. This formula age 65, $1 in benefits is withheld for indexed monthly earnings for a worker and the rounding adjustment described every $2 of earnings in excess of the attaining age 62, becoming disabled above are contained in section 215(a) of annual exempt amount. before age 62, or dying before attaining the Act (42 U.S.C. 415(a)). Conputation. Under the formula in age 62, in 1997, the national average section 203(f)(8)(B) applicable to wage index for 1995, $24,705.66, is Maximum Benefits Payable to a Family beneficiaries under age 65, the monthly divided by the national average wage General. The 1977 amendments exempt amount for 1997 shall be the index for each year prior to 1995 in continue the long established policy of larger of (1) the 1996 monthly exempt which the worker had earnings. The limiting the total monthly benefits amount or (2) the 1994 monthly exempt actual wages and self-employment which a worker’s family may receive amount multiplied by the ratio of the income, as defined in section 211(b) of based on his or her primary insurance national average wage index for 1995 to the Act and credited for each year, is amount. Those amendments also that for 1992. The ratio of the national multiplied by the corresponding ratio to continued the then existing relationship average wage index for 1995, $24,705.66 obtain the worker’s indexed earnings for between maximum family benefits and as determined above, compared to that each year before 1995. Any earnings in primary insurance amounts but did for 1992, $22,935.42, is 1.0771837. 1995 or later are considered at face change the method of computing the Section 203(f)(8)(B) further provides value, without indexing. The average maximum amount of benefits which that if the amount so determined is not indexed monthly earnings is then may be paid to a worker’s family. The 55350 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices

Social Security Disability Amendments This amount is then rounded to the of the Act as it read prior to the 1977 of 1980 (Pub. L. 96–265) established a next lower multiple of $.10 if it is not amendments. formula for computing the maximum already a multiple of $.10. This formula The ‘‘old-law’’ contribution and benefits payable to the family of a and the rounding adjustment described benefit base is used by: disabled worker. This formula is above are contained in section 203(a) of (a) the Railroad Retirement program to applied to the family benefits of workers the Act (42 U.S.C. 403(a)). determine certain tax liabilities and tier II benefits payable under that program who first become entitled to disability Quarter of Coverage Amount insurance benefits after June 30, 1980, to supplement the tier I payments which and who first become eligible for these General. The 1997 amount of earnings correspond to basic Social Security benefits after 1978. For disabled workers required for a quarter of coverage is benefits, initially entitled to disability benefits $670. A quarter of coverage is the basic (b) the Pension Benefit Guaranty before July 1980, or whose disability unit for determining whether a worker Corporation to determine the maximum began before 1979, the family maximum is insured under the Social Security amount of pension guaranteed under the payable is computed the same as the program. For years before 1978, an Employee Retirement Income Security old-age and survivor family maximum. individual generally was credited with Act (as stated in section 230(d) of the Computing the Old-Age and Survivor a quarter of coverage for each quarter in Act), Family Maximum. The formula used to which wages of $50 or more were paid, (c) Social Security to determine a year compute the family maximum is similar or an individual was credited with 4 of coverage in computing the special to that used to compute the primary quarters of coverage for every taxable minimum benefit, as described earlier, insurance amount. It involves year in which $400 or more of self- and (d) Social Security to determine a year computing the sum of four separate employment income was earned. of coverage (acquired whenever percentages of portions of the worker’s Beginning in 1978, wages generally are earnings equal or exceed 25 percent of primary insurance amount. In 1979, no longer reported on a quarterly basis; the ‘‘old-law’’ base for this purpose these portions were the first $230, the instead, annual reports are made. With only) in computing benefits for persons amount between $230 and $332, the the change to annual reporting, section 352(b) of the Social Security who are also eligible to receive pensions amount between $332 and $433, and the Amendments of 1977 amended section based on employment not covered amount over $433. The dollar amounts 213(d) of the Act to provide that a under section 210 of the Act. in the formula which govern the quarter of coverage would be credited Computation. The base is computed portions of the primary insurance for each $250 of an individual’s total using the automatic adjustment formula amount are frequently referred to as the wages and self-employment income for in section 230(b) of the Act as it read ‘‘bend points’’ of the family-maximum calendar year 1978 (up to a maximum prior to the enactment of the 1977 formula. Thus, the bend points for 1979 of 4 quarters of coverage for the year). amendments, but with the revised were $230, $332, and $433. Computation. Under the prescribed indexing formula introduced by section The bend points for 1997 are obtained formula, the quarter of coverage amount 321(g) of the ‘‘Social Security by multiplying the corresponding 1979 for 1997 shall be equal to the larger of Independence and Program bend-point amounts by the ratio (1) the current amount of $640 or (2) the Improvements Act of 1994.’’ Under the between the national average wage 1978 amount of $250 multiplied by the formula, the ‘‘old-law’’ contribution and index for 1995, $24,705.66, and the ratio of the national average wage index benefit base shall be the larger of (1) the average for 1977, $9,779.44. This for 1995 to that for 1976. The national current ‘‘old-law’’ base ($46,500) or (2) amount is then rounded to the nearest average wage index for 1976 was the 1994 ‘‘old-law’’ base ($45,000) dollar. For 1997, the ratio is 2.5262858. previously determined to be $9,226.48. multiplied by the ratio of the national Multiplying the amounts of $230, $332, The average wage index for 1995 is average wage index for 1995 to that for and $433 by 2.5262858 produces the $24,705.66 as determined above. 1992. If the amount so determined is not amounts of $581.05, $838.73, and Section 213(d) further provides that if a multiple of $300, it shall be rounded $1,093.88. These amounts are then the amount so determined is not a to the nearest multiple of $300. rounded to $581, $839, and $1,094. multiple of $10, it shall be rounded to Amount. The ratio of the national Accordingly, the portions of the primary the nearest multiple of $10. average wage index for 1995, $24,705.66 insurance amounts to be used in 1997 Quarter of Coverage Amount. The as determined above, compared to that are determined to be the first $581, the ratio of the national average wage index for 1992, $22,935.42, is 1.0771837. amount between $581 and $839, the for 1995, $24,705.66, compared to that Multiplying the 1994 ‘‘old-law’’ amount between $839 and $1,094, and for 1976, $9,226.48, is 2.6776907. contribution and benefit base amount of the amount over $1,094. Multiplying the 1978 quarter of $45,000 by the ratio of 1.0771837 Consequently, for the family of a coverage amount of $250 by the ratio of produces the amount of $48,473.27 worker who becomes age 62 or dies in 2.6776907 produces the amount of which must then be rounded to $48,600. 1997 before age 62, the total amount of $669.42, which must then be rounded to Because $48,600 exceeds the current benefits payable to them will be $670. Because $670 exceeds the current amount of $46,500, the ‘‘old-law’’ computed so that it does not exceed: amount of $640, the quarter of coverage contribution and benefit base is (a) 150 percent of the first $581 of the amount is determined to be $670 for determined to be $48,600 for 1997. worker’s primary insurance amount, 1997. plus Substantial Gainful Activity Amount (b) 272 percent of the worker’s ‘‘Old-Law’’ Contribution and Benefit for Blind Individuals primary insurance amount over $581 Base General. A finding of disability under through $839, plus General. The 1997 ‘‘old-law’’ Titles II and XVI of the Act requires that (c) 134 percent of the worker’s contribution and benefit base is $48,600. a person be unable to engage in primary insurance amount over $839 This is the base that would have been substantial gainful activity (SGA). through $1,094, plus effective under the Act without the Under current regulations, a person who (d) 175 percent of the worker’s enactment of the 1977 amendments. The is not statutorily blind and is earning primary insurance amount over $1,094. base is computed under section 230(b) more than $500 a month (net of Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices 55351 impairment-related work expenses) is Computation. Under the new formula, estimated to be $354,615 million. Thus, ordinarily considered to be engaging in the domestic employee coverage the OASDI fund ratio for 1996 is 139.9 SGA. The Social Security amendments threshold amount for 1997 shall be percent, which exceeds the applicable of 1977 established a higher SGA equal to the 1995 amount of $1,000 threshold of 20.0 percent. Therefore, the amount for statutorily blind individuals multiplied by the ratio of the national stabilizer provision does not affect the by setting their monthly SGA amount to average wage index for 1995 to that for benefit increase for December 1996. the monthly exempt amount for persons 1993. The national average wage index Although the OASDI fund ratio exceeds aged 65 through 69 under the retirement for 1993 was previously determined to the 32.0-percent threshold for potential earnings test provisions of the Act. As be $23,132.67. The national average ‘‘catch-up’’ benefit increases, no past mentioned earlier, section 102 of Pub. L. wage index for 1995 is $24,705.66 as benefit increase has been reduced under 104–121 increased the exempt amount determined above. If the amount so the stabilizer provision. Thus, no for persons aged 65 through 69 to determined is not a multiple of $100, it ‘‘catch-up’’ benefit increase is required. specific levels for 1996–2002. Section shall be rounded to the next lower (Catalog of Federal Domestic Assistance: 102 further provided that the SGA multiple of $100. Program Nos. 96.001 Social Security— amount for blind individuals be the Domestic Employee Coverage Disability Insurance; 96.002 Social same as it would have been if section Threshold Amount. The ratio of the Security—Retirement Insurance; 96.003 102 had not been enacted. Thus, the national average wage index for 1995, Social Security—Special Benefits for Persons monthly SGA amount for blind $24,705.66, compared to that for 1993, Aged 72 and Over; 96.004 Social Security— individuals in 1996 is $960—the same $23,132.67, is 1.0679986. Multiplying Survivors Insurance; 96.006 Supplemental as the monthly exempt amount for the 1995 domestic employee coverage Security Income.) persons aged 65 through 69 threshold amount of $1,000 by the ratio Dated: October 18, 1996. promulgated in the Federal Register on of 1.0679986 produces the amount of Shirley S. Chater, October 25, 1995 (60 FR 54751). $1,068.00, which must then be rounded Commissioner, Social Security Computation. Under the formula in to $1,000. Accordingly, the domestic Administration. section 203(f)(8)(B) in effect prior to the employee coverage threshold amount is [FR Doc. 96–27414 Filed 10–24–96; 8:45 am] determined to be $1,000 for 1997. enactment of Pub. L. 104–121, the BILLING CODE 4190±29±M monthly SGA amount for statutorily OASDI Fund Ratio blind individuals for 1997 shall be the General. Section 215(i) of the Act larger of (1) such amount for 1996 or (2) provides for automatic cost-of-living OFFICE OF THE UNITED STATES such amount for 1994 multiplied by the increases in OASDI benefit amounts. TRADE REPRESENTATIVE ratio of the national average wage index This section also includes a ‘‘stabilizer’’ for 1995 to that for 1992. The ratio of the provision that can limit the automatic Generalized System of Preferences national average wage index for 1995, OASDI benefit increase under certain (GSP); 1995 Annual Review Public $24,705.66 as determined above, circumstances. If the combined assets of Hearings Site compared to that for 1992, $22,935.42, the OASI and DI Trust Funds, as a is 1.0771837. Section 203(f)(8)(B) AGENCY: Office of the United States percentage of annual expenditures, are Trade Representative. further provides that if the amount so below a specified threshold, the ACTION: determined is not a multiple of $10, it automatic benefit increase is equal to Notice of site for the hearings shall be rounded to the nearest multiple the lesser of (1) the increase in the associated with the 1995 Annual of $10. national average wage index or (2) the Review. SGA Amount for Statutorily Blind increase in prices. The threshold SUMMARY: This notice announces that Individuals. Multiplying the 1994 specified for the OASDI fund ratio is the hearings for the 1995 Annual monthly SGA amount for statutorily 20.0 percent for benefit increases for Review under the Generalized System of blind individuals of $930 by the ratio of December of 1989 and later. The law Preferences will be held November 13 1.0771837 produces the amount of also provides for subsequent ‘‘catch-up’’ and 14, 1996 at the International Trade $1,001.78. This must then be rounded to benefit increases for beneficiaries whose Commission, Main Hearing Room, 500 E $1,000. Because $1,000 is larger than the previous benefit increases were affected Street, S.W., Washington, D.C. 20436. current amount of $960, the monthly by this provision. ‘‘Catch-up’’ benefit The hearings will begin at 10 am on SGA amount for statutorily blind increases can occur only when trust November 13th. individuals is determined to be $1,000 fund assets exceed 32.0 percent of For further information contact the for 1997. annual expenditures. GSP Information Center (202) 395–6971. Computation. Section 215(i) specifies Domestic Employee Coverage Frederick L. Montgomery, Threshold the computation and application of the OASDI fund ratio. The OASDI fund Chairman, Trade Policy Staff Committee. General. Section 2 of the ‘‘Social ratio for 1996 is the ratio of (1) the [FR Doc. 96–27410 Filed 10–24–96; 8:45 am] Security Domestic Employment Reform combined assets of the OASI and DI BILLING CODE 3190±01±M Act of 1994’’ (Pub. L. 103–387) Trust Funds at the beginning of 1996 to increased the threshold for coverage of (2) the estimated expenditures of the [Docket Number 301±103] a domestic employee’s wages paid per OASI and DI Trust Funds during 1996, employer from $50 per calendar quarter excluding transfer payments between Termination of Section 302 to $1,000 in calendar year 1994. The the OASI and DI Trust Funds, and Investigation Regarding Portugal's statute holds the coverage threshold at reducing any transfers to the Railroad Implementation of the Patent the $1,000 level for 1995 and then Retirement Account by any transfers Protection Provisions of the increases the threshold in $100 from that account into either trust fund. Agreement on Trade-Related Aspects increments for years after 1995. The Ratio. The combined assets of the of Intellectual Property Rights formula for increasing the threshold is OASI and DI Trust Funds at the provided in section 3121(x) of the beginning of 1996 equaled $496,068 AGENCY: Office of the United States Internal Revenue Code. million, and the expenditures are Trade Representative. 55352 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices

ACTION: Notice of termination and claimed. Portugal had declined to apply Subject: TC1 Telex Mail Vote 830, US- monitoring. the Article 33-mandated term to Venezuela Apex Fares—Reso 075ff, pending patents, and claimed that the Intended effective date: December 1, SUMMARY: On April 30, 1996, the United TRIPS Agreement did not require it to 1996. States Trade Representative (USTR) do so. Docket Number: OST–96–1871. initiated an investigation under section On May 30, 1996, the United States Date Filed: October 15, 1996. 302(b)(1) of the Trade Act of 1974, as and Portugal (with representatives of the Parties: Members of the International amended (the Trade Act) (19 U.S.C. European Commission present at Air Transport Association. 2412(b)(1)), with respect to certain acts, Portugal’s request) held formal Subject: PTC2 EUR 0012 dated policies and practices of the consultations on this matter under the September 6, 1996 r1–2, PTC2 EUR Government of Portugal relating to the WTO DSU procedures. In those 0013 dated September 6, 1996 r3–4, term of existing patents. Following consultations, Portugal formally agreed PTC2 EUR 0014 dated September 6, consultations with the United States to the United States’ interpretation of 1996 r5–6. Within Europe Resolutions. under the auspices of the World Trade the obligations in the TRIPS Agreement Intended effective date: March 1, 1997. Organization (WTO), Portugal issued a and announced that it would make a decree-law to implement properly its Docket Number: OST–96–1876. series of changes to its system to Date Filed: October 17, 1996. patent term-related obligations under implement these obligations. On August Parties: Members of the International the Agreement on Trade-Related 23, 1996, Portugal issued Decree-Law Air Transport Association. Aspects of Intellectual Property Rights 141/96 confirming that all patents that Subject: TC1 Telex Mail Vote 831, (TRIPS Agreement). Having reached a were in force on January 1, 1996, and all Brazil-Argentina/Paraguay/Uruguay satisfactory resolution of the issues patents granted after this date based on Resos r–1—070j, r–2—072vv, r–3— under investigation, the USTR has applications that were pending on 078m. Intended effective date: determined this section 302 January 1, 1996, will receive a term of November 1, 1996. investigation and monitor protection that lasts either 15 years from implementation of the agreement under the date of grant of the patent or 20 Docket Number: OST–96–1877. section 306 of the Trade Act. years from the effective filing date of the Date Filed: October 17, 1996. Parties: Members of the International EFFECTIVE DATE: The effective date of the patent, whichever term is longer. Air Transport Association. termination of the investigation is Based on these consultations and the Subject: PTC COMP 0028 dated October 21, 1996. measures that Portugal has undertaken to implement its obligations under the October 15, 1996, PTC COMP Fares ADDRESSES: Section 301 Committee, 0028 dated October 15, 1996, U.S.-North Office of the United States Trade TRIPS Agreement, Portugal and the United States notified the WTO Dispute Atlantic Add-ons (Reso 015n). Intended Representative, Room 223, 600 17th effective date: January 1, 1997. Street, N.W., Washington, D.C. 20506. Settlement Body on October 3, 1996, that they have agreed to terminate Paulette V. Twine, FOR FURTHER INFORMATION CONTACT: consultations on this matter and that the Chief, Documentary Services Division. Joseph Papovich, Deputy Assistant United States has formally withdrawn [FR Doc. 96–27499 Filed 10–24–96; 8:45 am] USTR for Intellectual Property (202) this matter from further attention under BILLING CODE 4910±62±P 395–6864, or Thomas Robertson, the provisions of the DSU. On the basis Associate General Counsel (202) 395– of the measures Portugal has undertaken 6800. to provide a satisfactory resolution to Notice of Applications for Certificates SUPPLEMENTARY INFORMATION: On April the matter under investigation, the of Public Convenience and Necessity 30, 1996, the USTR initiated an USTR has decided to terminate this and Foreign Air Carrier Permits Filed investigation under section 302(b)(1) of section 302 investigation. Pursuant to Under Subpart Q During the Week the Trade Act with respect to certain section 306 of the Trade Act, the USTR Ending October 18, 1996 acts, policies and practices of the will monitor Portugal’s implementation Government of Portugal relating to the of its TRIPS Agreement obligations with The following Applications for term of existing patents. The United respect to the term of protection granted Certificates of Public Convenience and States alleged that these acts, policies to patents in force on or after January 1, Necessity and Foreign Air Carrier and practices result in patents owned by 1996. Permits were filed under Subpart Q of the Department of Transportation’s U.S. individuals and firms receiving Irving A. Williamson, shorter terms than those required by the Procedural Regulations (See 14 CFR Chairman, Section 301 Committee. TRIPs Agreement. The United States 302.1701 et. seq.). The due date for also requested consultations with [FR Doc. 96–27409 Filed 10–24–96; 8:45 am] Answers, Conforming Applications, or Portugal under the procedures of the BILLING CODE 3190±01±M Motions to modify Scope are set forth WTO Dispute Settlement Understanding below for each application. Following (DSU). 61 FR 19970 (May 3, 1996). the Answer period DOT may process the At issue in this investigation was DEPARTMENT OF TRANSPORTATION application by expedited procedures. whether developed-country Members of Such procedures may consist of the Aviation Proceedings; Agreements the WTO are obligated under Article adoption of a show-cause order, a Filed During the Week Ending 10/18/96 70(2) of the TRIPS Agreement to apply tentative order, or in appropriate cases the provisions of Article 33 of the TRIPS The following Agreements were filed a final order without further Agreement to all patents that were in with the Department of Transportation proceedings. force on January 1, 1996, and to all under the provisions of 49 U.S.C 412 Docket Number: OST–96–1868. patents that are granted based on and 414. Answers may be filed within Date filed: October 15, 1996. applications that were pending on 21 days of date of filing. Due Date for Answers, Conforming January 1, 1996. Article 33 of the TRIPS Docket Number: OST–96–1870. Applications, or Motion to Modify Agreement requires Members to grant a Date Filed: October 15, 1996. Scope: November 12, 1996. patent term that lasts not less than 20 Parties: Members of the International Description: Application of U.S. CalJet years from earliest effective filing date Air Transport Association. Airlines, Inc. d/b/a CalJet Airlines, Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices 55353 pursuant to 49 U.S.C. Section 41102 and Route 179, which authorizes Northwest (4) Fire suppression systems for Subpart Q of the Regulations, requests to engage in foreign air transportation of towing vessels. authority to engage in interstate persons, property, and mail between (5) Structural soundness and loading scheduled air transportation of Detroit, Michigan and London, England. practices. passengers, property, and mail: Between Paulette V. Twine, Procedural a place in (i) a State, territory, or Chief, Documentary Services Division. possession of the United States and a [FR Doc. 96–27498 Filed 10–24–96; 8:45 am] Attendance at both meetings is open place in the District of Columbia or BILLING CODE 4910±62±P to the public. With advance notice, and another State, territory or possession of Chairperson’s discretion, members of the United States; (ii) Hawaii and the public may make oral presentation [CGD 96±057] another place in Hawaii through the during the meeting. Persons wishing to airspace over a place outside Hawaii; make oral presentations should notify (iii) the District of Columbia and Towing Safety Advisory Committee Meeting the Assistant Executive Director, listed another place in the District of under ‘‘ADDRESSES,’’ no later than Columbia; and (iv) a territory or AGENCY: Coast Guard, DOT. October 28, 1996. Written material may possession of the United States and ACTION: Notice of meetings. be submitted at any time for the another place in the same territory or presentation to the Committee. possession. SUMMARY: The Towing Safety Advisory However, to ensure advance distribution Docket Number: OST–96–1873. Committee (TSAC) and its working to each Committee member, persons Date filed: October 16, 1996. groups will meet to discuss various submitting written material are asked to Due Date for Answers, Conforming issues relating to shallow-draft inland provide 25 copies to the Assistant Applications, or Motion to Modify and coastal waterway navigation and Executive Director no later than October Scope: November 13, 1996. towing safety. The agenda will include 21, 1996. Description: Application of United working group reports and discussion of Air Lines, Inc., pursuant to 49 U.S.C. various Coast Guard programs such as Information on Services for the Section 41101 and Subpart Q of the Prevention Through People and Coast Handicapped Guard rulemaking projects. Both Regulations, applies for renewal of For information on facilities or meetings are open to the public. authority to serve Japan, the Philippines services for the handicapped or to and Vietnam in its amended Certificate DATES: The TSAC meeting will be held request special assistance at the of Public Convenience and Necessity for on November 5, 1996, from 9 a.m. to 1 meetings, contact the Assistant Route 130. This authority is due to p.m. The working group meetings will Executive Director as soon as possible. expire on April 17, 1997. United be held on November 4, 1996, from 9 Dated: October 17, 1996. invokes the provisions of Part 377 of the a.m. to 4 p.m. Written material must be Department’s Special Regulations to received on or before October 28, 1996. Joseph J. Angelo, Director of Standards Marine Safety and continue its temporary certificate ADDRESSES: The meetings will be held Environmental Protection. authority in effect pursuant to 5 U.S.C. in room 2415, U.S. Coast Guard Section 558(c) pending final Department Headquarters, 2100 Second Street, SW., [FR Doc. 96–27500 Filed 10–24–96; 8:45 am] action on this application. Washington, DC 20593–0001. Written BILLING CODE 4910±14±M Docket Number: OST–96–1874. material and requests to make oral Date filed: October 16, 1996. presentations should be submitted to Coast Guard Due Date for Answers, Conforming LTJG Patrick J. DeShon, Assistant Applications, or Motion to Modify Executive Director, Commandant (G– Privacy Act of 1974: Deletion of Scope: November 13, 1996. MSE–1), U.S. Coast Guard Headquarters, Systems of Records Notices Description: Application of Delta Air 2100 Second Street, SW., Washington, Lines, Inc., pursuant to 49 U.S.C. DC 20593–0001. AGENCY: Coast Guard, Transportation. Sections 41102, 41108 and Subpart Q of FOR FURTHER INFORMATION CONTACT: the regulations, applies for renewal of ACTION: Notice to delete Privacy Act LTJG Patrick J. DeShon, Assistant systems of records. its Certificate of Public Convenience Executive Director, Commandant (G– and Necessity for Route 515, as reissued MSE–1), U.S. Coast Guard Headquarters, by Order 92–3–41, authorizing Delta to SUMMARY: The Department of 2100 Second Street, SW., Washington, Transportation is deleting the following engage in foreign air transportation of DC 20593–0001, telephone (202) 267– persons, property and mail between the systems from its inventory of Privacy 2997, fax (202) 267–4816. Act systems of records notices. terminal points Portland, Oregon and SUPPLEMENTARY INFORMATION: Notice of Tokyo, Japan. Delta’s certificate for these meetings is given pursuant to the EFFECTIVE DATE: October 25, 1996. Route 515 expires on April 18, 1997. Federal Advisory Committee Act, 5 FOR FURTHER INFORMATION CONTACT: Delta requests renewal of its certificate U.S.C. App. 2 § 1 et seq. The agenda will for an additional five year duration. Crystal M. Bush, Privacy Coordinator, include discussion of the following U.S. Department of Transportation, Docket Number: OST–96–1878. topics: Washington, DC 20590. Telephone: Date filed: October 17, 1996. Due Date for Answers, Conforming Work Groups (202) 366–9713. Applications, or Motion to Modify (1) Prevention Through People. SUPPLEMENTARY INFORMATION: In Scope: November 14, 1996. (2) Licensing and International accordance with the Privacy Act of Description: Application of Northwest Convention on Standards of Training, 1974, the Department of Transportation Airlines, Inc., pursuant to 49 U.S.C. Certification and Watchkeeping for conducted a review of several of its 41101, 14 CFR 302.1750(a)(4), and Seafarers, 1978 (STCW) Privacy Act systems of records and Subpart Q of the Regulations, requests, Implementation. determined the following records are no renewal of Segment 3 of its certificate of (3) Barge retrieval and anchoring longer being maintained by the public convenience and necessity for systems. Department. 55354 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices

System number System name Washington, DC 20591; telephone (202) medical stretchers for transport of 267–3132. persons whose medical condition DOT/CG 529 .... Civilian Payroll System. FOR FURTHER INFORMATION CONTACT: Fred dictates such accommodations for use DOT/CG 635 .... Coast Guard Mutual Assist- Haynes (202) 267–3939 or Marisa on the Boeing Model 777 airplanes and ance. Mullen (202) 267–9681 Office of Airbus Model A330 and A340 airplanes. DOT/CG 691 .... Master Chief Petty Officer Grant, October 3, 1996, Exemption No. of the Coast Guard Indi- Rulemaking (ARM–1), Federal Aviation vidual Grievance and Administration, 800 Independence 6515. Correspondence File. Avenue, SW., Washington, DC 20591. [FR Doc. 96–27491 Filed 10–24–96; 8:45 am] This notice is published pursuant to BILLING CODE 4910±13±M Dated: October 18, 1996. paragraphs (c), (e), and (g) of § 11.27 of Crystal M. Bush, Part 11 of the Federal Aviation Privacy Act Coordinator. Regulations (14 CFR Part 11). Notice of Intent To Rule on Application [FR Doc. 96–27497 Filed 10–24–96; 8:45 am] Issued in Washington, DC, on October 22, To Use the Revenue From a Passenger BILLING CODE 4910±62±P 1996. Facility Charge (PFC) at Burbank- Donald P. Byrne, Glendale-Pasadena Airport, Burbank, Assistance Chief Counsel for Regulations. CA Federal Aviation Administration Petitions for Exemption AGENCY: Federal Aviation [Summary Notice No. PE±96±51] Administration (FAA), DOT. Docket No.: 27001. Petitioner: Jetstream Aircraft Ltd. ACTION: Notice of intent to rule on Petitions for Exemption; Summary of application. Petitions Received; Dispositions of Sections of the FAR Affected: 14 CFR 25.562(c)(5) and 25.785(a). Petitions Issued SUMMARY: The FAA proposes to rule and Description of Relief Sought: To invites public comment on the AGENCY: Federal Aviation extend Exemption No. 5587C granting application to use the revenue from a Administration (FAA), DOT. relief from compliance with the Head PFC at Burbank-Glendale-Pasadena ACTION: Notice of petitions for Injury Criteria for front row passengers Airport under the provisions of the exemption received and of dispositions of the Jetstream Model 4101 airplane. Aviation Safety and Capacity Expansion of prior petitions. Docket No.: 28672. Act of 1990 (Title IX of the Omnibus Petitioner: Alaska Airlines, Inc. SUMMARY: Pursuant to FAA’s rulemaking Budget Reconciliation Act of 1990) Sections of the FAR Affected: 14 CFR (Public Law 101–508) and Part 158 of provisions governing the application, 43.3, 43.5, 43.7, and 121.709. processing, and disposition of petitions the Federal Aviation Regulations (14 Description of Relief Sought: To CFR Part 158). for exemption (14 CFR Part 11), this permit certificated Alaska Airlines flight DATES: notice contains a summary of certain crewmembers to sign the airworthiness Comments must be received on petitions seeking relief from specified release or log entry for the installation or before November 25, 1996. requirements of the Federal Aviation and/or removal of medivac stretchers in ADDRESSES: Comments on this Regulations (14 CFR Chapter I), lieu of an authorized certificated application may be mailed in triplicate dispositions of certain petitions mechanic or repairman. to the following address: Federal previously received, and corrections. Aviation Administration, Airports Docket No.: 28685. The purpose of this notice is to improve Petitioner: Raytheon Aircraft Services. Division, P.O. Box 92007, WWPC, Los the public’s awareness of, and Sections of the FAR Affected: 14 CFR Angeles, CA 90009, or delivered in participation in, this aspect of FAA’s 135.398(b). triplicate to the following street address: regulatory activities. Neither publication Description of Relief Sought: To allow Federal Aviation Administration, of this notice nor the inclusion or the petitioner to operate its commuter Airports Division, AWP–600, 15000 omission of information in the summary category Beechcraft 2000 Starship and Aviation Blvd., Hawthorne, CA 90261. is intended to affect the legal status of King Air 350 without collecting In addition, one copy of any any petition or its final disposition. obstruction data or computing obstacle comments submitted to the FAA must DATE: Comments on petitions received clearance performance data. be mailed or delivered to Thomas Greer, must identify the petition docket Executive Director, Burbank-Glendale- number involved and must be received Dispositions of Petitions Pasadena Airport Authority, 2627 on or before November 14, 1996. Docket No.: 011SW. Hollywood Way, Burbank, CA 91505. ADDRESS: Send comments on any Petitioner: Agusta S.p.A. Air carriers and foreign air carriers petition in triplicate to: Federal Sections of the FAR Affected: 14 CFR may submit copies of written comments Aviation Administration, Office of the 27.1(a). previously provided to the Burbank- Chief Counsel, Attn: Rule Docket (AGC– Description of Relief Sought/ Glendale-Pasadena Airport Authority 200), Petition Docket No. ll, 800 Disposition: To permit the increase of under section 158.23 of Part 158. Independence Avenue, SW., the maximum gross weight of the A109 FOR FURTHER INFORMATION CONTACT: Washington, DC 20591. Comments may series helicopters from 6,000 pounds to John Milligan, Supervisor, Standards also be sent electronically to the 7,000 pounds while maintaining the Section, AWP–621, Airports Division, following internet address: original normal category rotorcraft Federal Aviation Administration, 15000 [email protected]. certification. GRANT, October 9, 1996, Aviation Blvd., Hawthorne, CA 90261, The petition, any comments received, Exemption No. 6518. Tel (310) 725–3621. The application and a copy of any final disposition are Docket No.: 28689. may be reviewed in person at this same filed in the assigned regulatory docket Petitioner: Air Medic. location. and are available for examination in the Sections of the FAR Affected: 14 CFR SUPPLEMENTARY INFORMATION: The FAA Rules Docket (AGC–200), Room 915G, 25.561, 25.562, and 25.785(b). proposes to rule and invites public FAA Headquarters Building (FOB 10A), Description of Relief Sought/ comment on the application to use the 800 Independence Avenue, SW., Disposition: To permit certification of revenue from a PFC at Burbank- Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices 55355

Glendale-Pasadena Airport under the the Burbank-Glendale-Pasadena Airport Streets, surface and subway options provisions of the Aviation Safety and Authority, Burbank-Glendale-Pasadena would extend the light rail line through Capacity Expansion Act of 1990 (Title Airport. South of Market, the downtown area, IX of the Omnibus Budget Issued in Hawthorne, California on October crossing Market Street to the downtown Reconciliation Act of 1990) (Public Law 10, 1996. area, with a northern terminus in 101–508) and Part 158 of the Federal Herman C. Bliss, Chinatown near Sacramento or Aviation Regulations (14 CFR Part 158). Manager, Airports Division, Western-Pacific Washington Street. Other options would On October 4, 1996 the FAA Region. operate directly into the Market Street determined that the application to use [FR Doc. 96–27493 Filed 10–24–96; 8:45 am] MUNI Metro subway. As part of the the revenue from a PFC submitted by BILLING CODE 4910±13±M project, a new light rail maintenance Burbank-Glendale-Pasadena Airport Authority was substantially complete and storage facility is proposed for a site just east of I–280, between 16th and within the requirements of section Federal Transit Administration 158.25 of Part 158. The FAA will Mariposa Streets. approve or disapprove the application, Environmental Impact Statement on The local lead agency—the City and in whole or in part, no later than the Third Street Light Rail Project in County of San Francisco, Planning January 17, 1997. San Francisco, CA Department, Office of Environmental The following is a brief overview of Review (OER)—will ensure that the AGENCY: Federal Transit Administration, the use application number 96–02–U– environmental document also satisfies DOT. 00–BUR: the requirements of the California ACTION: Level of PFC: $3.00. Notice of intent to prepare an Environmental Quality Act (CEQA). In Actual charge effective date: environmental impact statement. addition to the Third Street Light Rail September 1, 1994. Estimated charge expiration date: SUMMARY: The Federal Transit Project, the EIS/EIR will evaluate a No January 1, 2000. Administration (FTA) and the San Build Alternative, as well as any Total estimated net PFC revenue to be Francisco Municipal Railway (MUNI) feasible alternatives generated through used: $27,441,000.00. hereby give notice that they intend to the scoping process. Scoping will be Brief description of proposed prepare an Environmental Impact accomplished through correspondence project(s): AF–04 Construct ARFF Statement (EIS) in accordance with the with interested persons, organizations Station; LA–02 Acquire land—Plant B– National Environmental Policy Act and federal, state and local agencies, 6. (NEPA), on the proposed construction of and through two public scoping Class or classes of air carriers which a light rail transit service along the meetings. In addition, a Technical the public agency has requested not be Third Street corridor in San Francisco. Advisory Committee and a Community required to collect PFCs: Air Taxi/ The Third Street Light Rail Project Advisory Group will be established to Commercial Operators (ATCO) filing would extend from a southern terminus provide input to the project. Numerous Form 1800–31. connecting with the Bayshore CalTrain local community workshops and public Any person may inspect the Station, travel along Bayshore informational forums are also planned application in person at the FAA office Boulevard, cross Highway 101 to to take place throughout the project listed above under FOR FURTHER operate in a dedicated median right-of- corridor. INFORMATION CONTACT. In addition, any way on Third Street through the person may, upon request, inspect the Bayview commercial core, then past the MEETING DATES: Public scoping meetings application, notice and other documents Central Waterfront and Potrero Hill to will be held at the following times and germane to the application in person at King Street. North of Third and King locations:

Day Date Time Location

Wednesday ...... November 20, 1996 6:00 p.m.±9:00 p.m ... ANA Hotel, 50 Third Street. Thursday ...... November 21, 1996 6:00 p.m.±9:00 p.m ... Southeast Community Center, 1600 Oakdale Avenue.

The meetings will have an Open Francisco Municipal Railway, 949 information packet describing the House format from 6:00 p.m. to 7:00 Presidio Ave., San Francisco, CA. purpose of the proposed federal action, p.m., with a presentation and public 94115. Phone (415) 923–6100; or Donna the proposed alternatives, the impact comments on the EIS/EIR scope planned Turchie, Office of Planning and Program topics to be evaluated, the community from 7:00 p.m. to 9:00 p.m. Development, Federal Transit involvement program, and the ADDRESS FOR WRITTEN COMMENTS: Administration, 201 Mission St., Rm. preliminary project schedule will be Written comments on the scope of 2210, San Francisco, CA 94105. Phone available at the Public Scoping alternatives and impacts to be (415) 744–3115. Meetings. Persons may request the considered in the EIS/EIR should be SUPPLEMENTARY INFORMATION: scoping materials by contacting Paul sent to the local lead agency by Deutsch at the address above, or by December 6, 1996. Written comments Scoping calling him at (415) 558–6383. Scoping should be sent to Mr. Paul Deutsch, FTA and the local lead agency invite comments may be made verbally at Planning Department, Office of interested individuals, organizations, either of the public scoping meetings or Environmental Review, 1660 Mission and federal, state and local agencies to in writing. See the DATES and ADDRESSES Street, Fifth Floor, San Francisco, CA participate in defining the alternatives sections above for locations and times. 94103. to be evaluated in the EIS/EIR and During scoping, comments should focus FOR FURTHER PROJECT INFORMATION identifying any significant social, on identifying specific social, economic CONTACT: Sue Olive, Project Manager, economic, or environmental issues or environmental impacts to be Service Planning Department, San related to the alternatives. An evaluated and suggesting design options 55356 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices which are less costly or less to reach Third Street. Along Third Research and Special Programs environmentally damaging while Street, the alignment would remain in Administration (RSPA) achieving similar transit objectives. the median as it traverses the Bayview Scoping is not the appropriate time to commercial core, over Islais Creek, and Meetings of Pipeline Safety Advisory indicate a preference for a particular through the Central Waterfront area to Committees alternative. Comments on preferences 16th Street. A new light rail operations Pursuant to section 10(a)(2) of the should be communicated after the Draft and maintenance facility is proposed for Federal Advisory Committee Act (Pub. EIS/EIR has been completed. If you wish a 10-acre site east of I–280 between 16th L. 92–463, 5 U.S.C. App. 1) notice is to be placed on the mailing list to Street and Mariposa Streets. North of hereby given of the following meetings receive further information as the 16th Street, three primary surface and of the Technical Pipeline Safety project develops, contact Sue Olive as subway alignment options, each Standards Committee (TPSSC) and the previously described. containing suboption variants, are being Technical Hazardous Liquid Pipeline studied. The project also hopes to use Description of Study Area and Project Safety Standards Committee rail as a catalyst for revitalizing the Need (THLPSSC). Each Committee meeting, Third Street commercial core in as well as a joint session of the two The project is to construct an Bayview-Hunters Point. electrified light rail line on the surface Committees, will be held at the and in subway along the Third Street Probable Effects Department of Transportation, Room corridor in San Francisco as an FTA and the local lead agency plan 2230, 400 Seventh Street, S.W., alternative to the MUNI 15 and 9X to evaluate in the EIS/EIR all significant Washington, DC 20590. diesel bus lines that currently serve the social, economic, and environmental On November 6, 1996, at 10:00 a.m., area. The project would provide many impacts of the alternatives. Among the the THLPSSC will meet. Agenda items San Francisco residents with more primary issues are the expected increase include: efficient access to downtown job in transit ridership, traveltime savings, 1. Emergency Flow Restriction Devices centers, the Mission Bay project area the capital outlays needed to construct 2. API Risk Based Approach to and proposed new waterfront ballpark, the project, the cost of operating and Hydrostatic Testing and would enhance mobility by maintaining the facilities created by the 3. Breakout Tanks and Tank Standards improving connections with local and project, and the financial impacts on the 4. Lines Operating below 20% of SMYS regional transit lines. This major transit funding agencies. Environmental and 5. OPA Status Update investment is also intended to help social impacts and benefits proposed for 6. Progress in Defining Unusually achieve desired community and analysis include: land use and Sensitive Areas economic development objectives for neighborhood impacts; parklands; traffic On November 6, 1996, at 1:00 p.m., the Bayshore Corridor communities of and parking impacts, particularly in the the THLPSSC will be joined by Potrero Hill, Bayview-Hunters Point and Bayview commercial core and near members of the TPSSC for a joint Visitacion Valley. The new light rail stations; visual impacts; impacts on session which will include: line would connect these neighborhoods historic architecture properties and 1. Welcome by the OPS Associate with downtown San Francisco, and archaeological resources; and noise and Administrator possibly Chinatown. vibration impacts. Impacts on natural 2. Panel on Reauthorization and the Alternatives areas, biology, hazards, air and water Budget quality, groundwater and geology will 3. Regulatory Reform Phase II The Third Street Light Rail Project is also be covered. The impacts will be 4. Compliance Policy Task Force examining two alternatives to be carried evaluated both for the construction 5. General Regulatory Update forward into environmental analysis period and for the long-term period of 6. Preparation for Risk Management (Draft EIS/EIR). The two alternatives are: operation. Measures to mitigate Demonstration Project • The ‘‘No Build’’ Diesel Bus significant adverse impacts will be 7. Strategy for Improving Access to Alternative would be a continuation or considered. Pipeline Data and Meeting the expansion of the MUNI 15–Third and Government Performance Results Act 9X San Bruno Expresses that are FTA Procedures On November 7, 1996, from 9:30 a.m. currently the major trunk lines serving In accordance with the Federal to 12:00 noon, the joint TPSSC– the project area, and Transit Act and FTA policy, the Draft • A ‘‘Build’’ Light Rail Alternative, THLPSSC session will include: EIS/EIR will be prepared first. After its 1. OPS Rulemakings Update which assumes construction of a light publication, the Draft EIS/EIR will be rail line linking some or all of 2. Report on National Pipeline Mapping available for 45-day public and agency Project and Follow-up Strategy Chinatown, Downtown, South of review and comment period, and a Market, Potrero Hill, Bayview-Hunters 3. Non-Destructive Evaluation Project public hearing will be held. On the basis 4. Offshore Update Point and Visitacion Valley of the Draft EIS/EIR and the comments neighborhoods, primarily along Third 5. Proposed Damage Prevention Quality received, the San Francisco Public Action Team Street. The Light Rail Alternative has Transportation Commission will select a multiple downtown and Mission Bay 6. Operator Qualification Negotiated locally preferred alternative. Then the Rulemaking alignment options that will be evaluated Final EIS/EIR will be prepared At 1:00 p.m. on November 7, the and screened during the initial seven- responding to all comments on the Draft TPSSC will meet. Agenda items include: month study phase. All options share a EIS/EIR, and FTA will issue a Record of common alignment along Third between Decision on the proposed federal action. 1. Welcome by the OPS Associate the southern terminus at the Bayshore Administrator CalTrain Station and 16th Street. The Issued on: October 22, 1996. 2. Definition of Gas Gathering Lines Third Street light rail line would Leslie Rogers, 3. Liquid Natural Gas Regulatory operate in a dedicated median right-of- Regional Administrator, FTA. Updates way along Bayshore Boulevard and use [FR Doc. 96–27496 Filed 10–24–96; 8:45 am] 4. Excess Flow Valve Performance the existing Highway 101 overcrossing BILLING CODE 4910±57±U Standards Customer Notification Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices 55357

5. Determining the Extent of Corrosion outstanding stock of OTVR.3 The [STB Finance Docket No. 33138] on Exposed Gas Lines effective date of the exemption was 6. Passage of Instrumented Internal October 11, 1996. RailAmerica, Inc.ÐAcquisition of Inspection Devices This transaction is related to a notice Control ExemptionÐOtter Tail Valley 7. Plastic Pipe Issues of exemption filed in STB Finance Company, Inc. Each meeting will be open to the Docket No. 33138, RailAmerica, Inc.— RailAmerica, Inc. (RailAmerica), a public. Members of the public may Acquisition of Control Exemption— noncarrier, has filed a notice of present oral statements on the topics. Otter Tail Valley Railroad Company, exemption to acquire control, through Due to the limited time available, each Inc., wherein RailAmerica seeks to its wholly owned subsidiary Dakota person who wants to make an oral acquire control, through Dakota, of Rail, Inc., of Otter Tail Valley Railroad statement must notify Mary Jo Cooney, OTVR. Company, Inc. (OTVR).1 OTVR, a Class Dakota indicates that: (1) OTVR does Room 2335, Department of III rail carrier, operates solely in not connect with any other railroads in Transportation Building, 400 Seventh Minnesota.2 Street, S.W., Washington, DC 20590, Dakota’s corporate family; (2) the RailAmerica also controls the involved transaction is not part of a telephone (202) 366–4774, not later than following eight Class III rail carriers that series of anticipated transactions that October 31, 1996, on the topics to be do not connect with OTVR: Huron & would connect Dakota with any other addressed and the time requested to Eastern Railway Company, Inc., the railroad in its corporate family; and (3) address each topic. The presiding officer Saginaw Valley Railway Company, Inc., the transaction does not involve a Class may deny any request to present an oral the South Central Tennessee Railroad I carrier. Therefore, the transaction is statement and may limit the time of any Company, Dakota, the West Texas & exempt from the prior approval oral presentation. Members of the public Lubbock Railroad Company, Inc., the requirements of 49 U.S.C. 11323. See 49 may present written statements to the Plainview Terminal Company, CFR 1180.2(d)(2). The purpose of the Committee before or after any meeting. Evansville Terminal Company, Inc., and transaction is to achieve operating the Cascade and Columbia River Issued in Washington, DC on October 21, economies and to improve service over 1996. 3 the lines. Railroad Company. The effective date Richard B. Felder, Under 49 U.S.C. 10502(g), the Board of the exemption was October 11, 1996. Associate Administrator for Pipeline Safety. may not use its exemption authority to This transaction is related to a notice [FR Doc. 96–27487 Filed 10–24–96; 8:45 am] relieve a rail carrier of its statutory of exemption filed in STB Finance Docket No. 33133, Dakota Rail, Inc.— BILLING CODE 4910±60±P obligation to protect the interests of its employees. Section 11326(c), however, Acquisition of Control Exemption— does not provide for labor protection for Otter Tail Valley Railroad Company, Surface Transportation Board transactions under sections 11324 and Inc., wherein Dakota seeks to acquire control, through stock purchase, of [STB Finance Docket No. 33133] 11325 that involve only Class III rail carriers. Because this transaction OTVR. Dakota Rail, Inc.ÐAcquisition of involves Class III rail carriers only, the RailAmerica states that: (1) OTVR Control ExemptionÐOtter Tail Valley Board, under the statute, may not does not connect with any other Railroad Company, Inc. impose labor protective conditions for railroads in its corporate family; (2) the this transaction. involved transaction is not part of a Dakota Rail, Inc. (Dakota), has filed a If the notice contains false or notice of exemption to acquire control, misleading information, the exemption 1 Dakota seeks to acquire control, through stock purchase, of OTVR, in a concurrently filed notice through stock purchase, of Otter Tail is void ab initio. Petitions to revoke the 1 of exemption in STB Finance Docket No. 33133, Valley Railroad Company, Inc. (OTVR). exemption under 49 U.S.C. 10502(d) Dakota Rail, Inc.—Acquisition of Control OTVR, a Class III rail carrier, operates may be filed at any time. The filing of Exemption—Otter Tail Valley Railroad Company, 2 solely in Minnesota. a petition to revoke will not Inc. 2 Dakota, a Class III rail carrier, is a automatically stay the transaction. OTVR’s main line runs from milepost 185.1, wholly owned subsidiary of near Fergus Falls, MN, northwest to Barnesville An original and 10 copies of all Junction, MN (milepost 218.6 = 0). From RailAmerica, Inc. It operates a pleadings, referring to STB Finance Barnesville Junction, milepost 0, the main line runs noncontiguous rail line from Docket No. 33133, must be filed with northwest to Moorehead, MN, at milepost 21.25. In Hutchinson, MN, to Wayzata, MN. the Surface Transportation Board, Office addition, a branch line runs from milepost 49.0, at Fergus Falls, west to milepost 61.5, at Foxhome, Under the terms of an agreement with of the Secretary, Case Control Branch, OTVR, Dakota will acquire 100% of the MN. 1201 Constitution Avenue, N.W., 3 Common control of these carriers was approved Washington, DC 20423. In addition, one in: John H. Marino, Eric D. Gerst, and Mariner 1 On October 4, 1996, Dakota filed a request to copy of all pleadings must be served on: Corporation—Control Exemption—Saginaw Valley amend its verified notice of exemption filed on Railway Company, Inc., Finance Docket No. 31196 September 25, 1996, in this proceeding to properly Edward D. Greenberg, Canal Square, (ICC served Apr. 23, 1991); RailAmerica, Inc.— characterize the transaction as ‘‘acquisition of 1054 Thirty-First Street, N.W., Control Exemption—South Central Tennessee control’’ rather than ‘‘acquisition of control and Washington, DC 20007. Railroad Company, Finance Docket No. 32421 (ICC merger.’’ Dakota states that, while it intends to served Jan. 18, 1994); RailAmerica, Inc.—Control merge OTVR into Dakota, there will be a period Decided: October 17, 1996. Exemption—Prairie Holding Corporation and where OTVR will exist as a separate entity, with By the Board, Joseph H. Dettmar, Acting Dakota Rail, Inc., Finance Docket No. 32750 (ICC Dakota owning 100% of OTVR’s outstanding stock Director, Office of Proceedings. served Sept. 25, 1995); RailAmerica, Inc.— and thus controlling OTVR. It indicates that it will Vernon A. Williams, Continuance in Control Exemption—West Texas seek separate approval of the merger of OTVR into and Lubbock Railroad Company, Inc. and Plainview Dakota. Secretary. Terminal Company, Finance Docket No. 32797 (ICC 2 OTVR’s main line runs from milepost 185.1, [FR Doc. 96–27422 Filed 10–24–96; 8:45 am] served Dec. 27, 1995); RailAmerica, Inc.— near Fergus Falls, MN, northwest to Barnesville Continuance in Control Exemption—Evansville Junction, MN (milepost 218.6 = 0). From BILLING CODE 4915±00±P Terminal Company, Inc., STB Finance Docket No. Barnesville Junction, milepost 0, the main line runs 32990 (STB served July 17, 1996); and RailAmerica, northwest to Moorehead, MN, at milepost 21.25. In 3 By decision served October 9, 1996, the Board’s Inc.—Continuance in Control Exemption—Cascade addition, a branch line runs from milepost 49.0, at Secretary granted a motion for a protective order and Columbia River Railroad Company, STB Fergus Falls, west to milepost 61.5, at Foxhome, permitting the stock purchase agreement to be filed Finance Docket No. 33048 (STB served Sept. 13, MN. under seal. 1996). 55358 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices series of anticipated transactions that and to the Treasury Department Special Request: In order to conduct would connect OTVR with any other Clearance Officer, Department of the the focus group interviews described railroad in its corporate family; and (3) Treasury, Room 2110, 1425 New York below during the first week of the transaction does not involve a Class Avenue, NW., Washington, DC 20220. November 1996, the Department of Treasury is requesting that the Office of I carrier. Therefore, the transaction is Financial Management Service (FMS) exempt from the prior approval Management and Budget (OMB) review requirements of 49 U.S.C. 11323. See 49 OMB Number: New. and approve this information collection CFR 1180.2(d)(2). The purpose of the Form Number: FMS 5902 and FMS by October 25, 1996. To obtain a copy transaction is to achieve operating 5903. of this survey, please contact the Public economies and to improve service and Type of Review: New collection. Debt Clearance Officer at the address Title: Resolution Authorizing financial viability. listed below. Execution of Depositary, Financial Under 49 U.S.C. 10502(g), the Board Agency, and Collateral Agreement Bureau of the Public Debt (BPD) may not use its exemption authority to (5902); and Depositary, Financial relieve a rail carrier of its statutory OMB Number: 1535–0122. Agency, and Collateral Agreement obligation to protect the interests of its Project Number: BPD 96–1. (5903). Type of Review: Revision. employees. Section 11326(c), however, Description: Financial institutions are does not provide for labor protection for Title: Focus Group Questions for required to complete an Agreement and Savings Bonds Marketing Office (SBMO) transactions under sections 11324 and Resolution to become a depositary of the 11325 that involve only Class III rail Marketing Study. Government. The approved applications Description: The need for market carriers. Because this transaction designate the depositary as an involves Class III rail carriers only, the research arises primarily from the authorized recipient of deposits of Bureau’s plan to offer U.S. Savings Board, under the statute, may not public money and to perform other impose labor protective conditions for Bonds to the public through a new services. means of purchase in addition to the this transaction. Respondents: Business or other for- If the notice contains false or existing options of payroll savings and profit. over-the-counter purchase through the misleading information, the exemption Estimated Number of Respondents: Regional Delivery System. The new is void ab initio. Petitions to revoke the 350. exemption under 49 U.S.C. 10502(d) Estimated Burden Hours Per purchase method would allow may be filed at any time. The filing of Response: individuals to apply to a single national a petition to revoke will not FMS Form 5902—15 minutes source for monthly or other recurring automatically stay the transaction. FMS Form 5903—15 minutes purchase through Automated Clearing An original and 10 copies of all Frequency of Response: Other (one- House (ACH) debits from their personal pleadings, referring to STB Finance time application). checking accounts. Information about Docket No. 33138, must be filed with Estimated Total Reporting Burden: consumer needs and about the potential the Surface Transportation Board, Office 175 hours. size of this market are needed to guide of the Secretary, Case Control Branch, Clearance Officer: Jacqueline R. Perry the design of the ACH recurring 1201 Constitution Avenue, N.W., (301) 344–8577, Financial Management purchase program and the selection of Washington, DC 20423. In addition, one Service, 3361–L 75th Avenue, Landover, appropriate vendors. copy of all pleadings must be served on: MD 20785. Respondents: Individuals or Edward D. Greenberg, Canal Square, OMB Reviewer: Alexander T. Hunt households, Business or other for-profit. 1054 Thirty-First Street, N.W., (202) 395–7860, Office of Management Estimated Number of Respondents: Washington, DC 20007. and Budget, Room 10202, New 80. Executive Office Building, Washington, Estimated Burden Hours Per Decided: October 17, 1996. DC 20503. Response: 2 hours. By the Board, Joseph H. Dettmar, Acting Lois K. Holland, Frequency of Response: Other. Director, Office of Proceedings. Departmental Reports Management Officer. Estimated Total Reporting Burden: Vernon A. Williams, [FR Doc. 96–27370 Filed 10–24–96; 8:45 am] 160 hours. Secretary. Clearance Officer: Vicki S. Thorpe BILLING CODE 4810±35±P±M [FR Doc. 96–27423 Filed 10–24–96; 8:45 am] (304) 480–6553, Bureau of the Public BILLING CODE 4915±00±P Debt, 200 Third Street, Parkersburg, Submission for OMB Review; West VA 26106–1328. Comment Request OMB Reviewer: Alexander T. Hunt DEPARTMENT OF THE TREASURY (202) 395–7860, Office of Management October 17, 1996. and Budget, Room 10226, New Submission for OMB review; Comment The Department of Treasury has Executive Office Building, Washington, Request submitted the following public DC 20503. information collection requirement(s) to Lois K. Holland, October 17, 1996. OMB for review and clearance under the Departmental Reports Management Officer. The Department of the Treasury has Paperwork Reduction Act of 1995, [FR Doc. 96–27371 Filed 10–24–96; 8:45 am] submitted the following public Public Law 104–13. Copies of the information collection requirement(s) to submission(s) may be obtained by BILLING CODE 4810±40±P OMB for review and clearance under the calling the Treasury Bureau Clearance Paperwork Reduction Act of 1995, Officer listed. Comments regarding this Submission to OMB for Review; Public Law 104–13. Copies of the information collection should be Comment Request submission(s) may be obtained by addressed to the OMB reviewer listed calling the Treasury Bureau Clearance and to the Treasury Department October 18, 1996. Officer listed. Comments regarding this Clearance Officer, Department of the The Department of Treasury has information collection should be Treasury, Room 2110, 1425 New York submitted the following public addressed to the OMB reviewer listed Avenue, NW., Washington, DC 20220. information collection requirement(s) to Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices 55359

OMB for review and clearance under the Estimated Total Reporting Burden: 1 defer gain on a section 367(a) transfer of Paperwork Reduction Act of 1995, hour. stock to a foreign corporation, and must Public Law 104–13. Copies of the OMB Number: 1545–1209. file a notice with the Service if it submission(s) may be obtained by Regulation Project Number: IA–83–90 realizes any income in a section 367(b) calling the Treasury Bureau Clearance Final. exchange. These requirements ensure Officer listed. Comments regarding this Type of Review: Extension. compliance with the respective sections. information collection should be Title: Disclosure of Tax Return Respondents: Business or other for- addressed to the OMB reviewer listed Information for Purposes of Quality or profit. and to the Treasury Department Peer Reviews; Disclosure of Tax Return Estimated Number of Respondents: Clearance Officer, Department of the Information Due to Incapacity or Death 600. Treasury, Room 2110, 1425 New York of Tax Return Preparer. Estimated Burden Hours Per Avenue, NW., Washington, DC 20220. Description: These regulations govern Respondent: 4 hours. Frequency of Response: Annually. Internal Revenue Service (IRS) the circumstances under which tax return information may be disclosed for Estimated Total Reporting Burden: OMB Number: 1545–0008. purposes of conducting quality or peer 2,400 hours. Form Number: IRS Forms W–2, W–2c, reviews, and disclosures that are OMB Number: 1545–1359. W–2AS, W–2GU, W–2VI, W–3, W–3c, necessary because of the tax return Regulation Project Number: INTL– W–3PR, W–3cPR, and W–3SS. preparer’s death or incapacity. 978–86 NPRM. Type of Review: Extension. Respondents: Business or other for- Type of Review: Extension. Title: Wage and Tax Statement (W–2), profit. Title: Information Reporting by Statement of Corrected Income and Tax Estimated Number of Recordkeepers: Passport and Permanent Residence Amounts (W–2c), American Samoa 250,000. Applicants. Wage and Tax Statement (W–2AS), Estimated Burden Hours Per Description: The regulations require Guam Wage and Tax Statement (W– Recordkeeper: 1 hour. applicants for passports and permanent 2GU), U.S. Virgin Islands Wage and Tax Frequency of Response: Other. residence status to report certain tax Statement (W–2VI), Transmittal of Wage Estimated Total Recordkeeping information on the applications. The and Tax Statements (W–3), Transmittal Burden: 250,000 hours. regulations are intended to give the Service notice of non-filers and of of Corrected Income and Tax Statements OMB Number: 1545–1231. persons with foreign source income not (W–3c), Informe de Comprobantes de Regulation Project Number: IA–38–90 subject to normal withholding, and to Retencion (W–3PR), Transmision de Final (T.D. 8382). Comprobantes de Retencion Corregidos Type of Review: Extension. notify such persons of their duty to file (W–3cPR), and Transmittal of Wage and Title: Penalty on Income Tax Return U.S. tax returns. Respondents: Individuals or Tax Statements (W–3SS). Preparers Who Understate Taxpayer’s households. Description: Employers report income Liability on a Federal Income Tax Estimated Number of Respondents: and withholding on Form W–2. Forms Return or a Claim for Refund. 5,500,000. W–2AS, W–2GU and W–2V are the U.S. Description: These regulations set Estimated Burden Hours Per possessions versions of Form W–2. The forth rules under section 6694 of the Form W–3 series is used to transmit Respondent: 6 minutes. Internal Revenue Code regarding the Frequency of Response: On occasion. Forms W–2 to the Social Security penalty for understatement of a Administration (SSA). Forms W–2c, W– Estimated Total Reporting Burden: taxpayer’s liability on a Federal income 750,000 hours. 3c and W–3cPR are used to correct tax return or claim for refund. In certain OMB Number: 1545–1421. previously filed Forms W–2, W–3 and circumstances, the preparer may avoid Regulation Project Number: IA–62–93 W–3PR. Individuals use Form W–2 to the penalty by disclosing on a Form TEMP and NPRM. prepare their income tax return. 8275 or by advising the taxpayer or Respondents: Business or other for- Type of Review: Extension. another preparer that disclosure is Title: Certain Elections Under the profit, Individuals or households, Not- necessary. for-profit institutions, Farms, Federal Omnibus Budget Reconciliation Act of Respondents: Business or other for- 1993. Government, State, Local or Tribal profit, Individual or households. Government. Description: These regulations Estimated Number of Respondents: establish various elections with respect Estimated Number of Respondents: 100,000. 6,493,883. to which immediate interim guidance Estimated Burden Hours Per on the time and manner of making the Estimated Burden Hours Per Respondent: 30 minutes. Respondent: elections is necessary. These regulations Frequency of Response: Annually. enable taxpayers to take advantage of Estimated Total Reporting Burden: the benefits of various Code provisions. Response 50,000 hours. Form time Respondents: Business or other for- (minutes) OMB Number: 1545–1271. profit, Individuals or households, Regulation Project Numbers: INTL– Farms. W±2 ...... 32 54–91 NPRM (Formerly INTL–610–86) Estimated Number of Respondents: W±2c ...... 52 and INTL–178–86 NPRM. 410,000. W±2AS ...... 22 Type of Review: Extension. Estimated Burden Hours Per W±2GU ...... 23 Title: Transfers of Stock or Securities W±2VI ...... 22 Respondent: 30 minutes. W±3 ...... 25 by U.S. Persons to Foreign Corporations Frequency of Response: On occasion. W±3c ...... 20 (INTL–54–91 NPRM); and Foreign Estimated Total Reporting Burden: W±3PR ...... 20 Liquidations and Reorganization (INTL– 202,500 hours. W±3cPR ...... 28 178–86 NPRM). Clearance Officer: Garrick Shear (202) W±3SS ...... 23 Description: A U.S. person must 622–3869, Internal Revenue Service, generally file a gain recognition Room 5571, 1111 Constitution Avenue, Frequency of Response: Annually agreement with the Service in order to N.W., Washington, DC 20224. 55360 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices

OMB Reviewer: Alexander T. Hunt information collection should be Recordkeeping—99 hr., 29 min. (202) 395–7340, Office of Management addressed to the OMB reviewer listed Learning about the law or the form— and Budget, Room 10226, New and to the Treasury Department 35 hr., 5 min. Executive Office Building, Washington, Clearance Officer, Department of the Preparing the form—56 hr., 51 min. DC 20503. Treasury, Room 2110, 1425 New York Lois K. Holland, Avenue, NW., Washington, DC 20220. Copying, assembling, and sending the form to the IRS—5 hr., 22 min. Departmental Reports Management Officer. Internal Revenue Service (IRS) Frequency of Response: Annually. [FR Doc. 96–27372 Filed 10–24–96; 8:45 am]. OMB Number: 1545–1027. BILLING CODE 4830±01±M Form Number: IRS Form 1120–PC. Estimated Total Reporting/ Type of Review: Revision. Recordkeeping Burden: 432,916 hours. Title: U.S. Property and Casualty Clearance Officer: Garrick Shear (202) Submission to OMB for Review; Insurance Company Income Tax Return. 622–3869, Internal Revenue Service, Comment Request Description: Property and casualty Room 5571, 1111 Constitution Avenue, October 18, 1996. insurance companies are required to file N.W., Washington, DC 20224. an annual return of income and pay the OMB Reviewer: Alexander T. Hunt The Department of Treasury has tax due. The data is used to insure that submitted the following public (202) 395–7340, Office of Management companies have correctly reported and Budget, Room 10226, New information collection requirement(s) to income and paid the correct tax. OMB for review and clearance under the Executive Office Building, Washington, Respondents: Business or other for- DC 20503. Paperwork Reduction Act of 1995, profit. Public Law 104–13. Copies of the Estimated Number of Respondents/ Lois K. Holland, submission(s) may be obtained by Recordkeepers: 2,200. Departmental Reports, Management Officer. calling the Treasury Bureau Clearance Estimated Burden Hours Per [FR Doc. 96–27373 Filed 10–24–96; 8:45 am] Officer listed. Comments regarding this Respondent/Recordkeeper: BILLING CODE 4830±01±P 55361

Corrections Federal Register Vol. 61, No. 208

Friday, October 25, 1996

This section of the FEDERAL REGISTER document, ‘‘96–25556’’ should read INTERNATIONAL DEVELOPMENT contains editorial corrections of previously ‘‘96–25586’’. COOPERATION AGENCY published Presidential, Rule, Proposed Rule, BILLING CODE 1505±01±D and Notice documents. These corrections are Agency for International Development prepared by the Office of the Federal Register. Agency prepared corrections are 22 CFR Part 228 issued as signed documents and appear in DEPARTMENT OF ENERGY the appropriate document categories RIN 0412±AA28 elsewhere in the issue. Federal Energy Regulatory Commission Rules on Source, Origin and [Docket No. CP97-18-000] Nationality for Commodities and Services Financed by the Agency for DEPARTMENT OF EDUCATION Williams Natural Gas Company; Notice International Development of Request Under Blanket Notice of Proposed Information Correction Collection Requests Authorization In rule document 96–26246, Correction Correction beginning on page 53615, in the issue of In notice document 96–26978 Tuesday, October 15, 1996, make the In notice document 96–25586 beginning on page 54788 in the issue of following correction: appearing on page 52441 in the issue of Tuesday, October 22, 1996, the docket On page 53620, in the first column, in Monday, October 7, 1996, in the third number is corrected to read as set forth the subpart heading, ‘‘Supplies’’ should column, in the file line at the end of the above. read ‘‘Suppliers’’.

BILLING CODE 1505±01±D BILLING CODE 1505±01±D federal register October 25,1996 Friday Instructions; ProposedRule Civil AviationOrganization'sTechnical Dangerous GoodsCode,andInternational Recommendations, InternationalMaritime Harmonization WiththeUnitedNations 49 CFRParts171,etal. Administration Research andSpecialPrograms Transportation Department of Part II 55363 55364 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules

DEPARTMENT OF TRANSPORTATION SUPPLEMENTARY INFORMATION: II. Overview of Proposed Changes I. Background Some of the more significant Research and Special Programs proposed amendments in this notice Administration On December 21, 1990, the Research and Special Programs Administration include: 49 CFR Parts 171, 172, 173, 175, 176, (RSPA) published a final rule [Docket —A new definition for ‘‘Aerosol’’ and 178 HM–181; 55 FR 52402] which two new definitions for packagings— comprehensively revised the Hazardous ‘‘salvage packaging’’ and [Docket No. HM±215B; Notice No. 96±20] Materials Regulations (HMR), 49 CFR ‘‘intermediate packaging’’—would be RIN 2137±AC82 Parts 171 to 180, with respect to hazard added. ‘‘Intermediate packaging’’ is a communication, classification, and term used for explosives packagings Harmonization With the United Nations packaging requirements, based on the in the explosive packaging tables. Recommendations, International UN Recommendations. One intended —New provisions for marking and use Maritime Dangerous Goods Code, and effect of the rule was to facilitate the of salvage packagings. International Civil Aviation international transportation of —Amendments to the Hazardous Organization's Technical Instructions hazardous materials by ensuring a basic Materials Table (HMT) which add, revise or remove certain proper AGENCY: consistency between the HMR and Research and Special Programs shipping names, hazard class, packing Administration (RSPA), DOT. international regulations. The UN Recommendations are not groups, special provisions, packaging ACTION: Notice of proposed rulemaking regulations, but are recommendations authorizations, air transport quantity (NPRM). issued by the UN Committee of Experts limitations and vessel stowage requirements. SUMMARY: This notice proposes to on the Transport of Dangerous Goods. —Addition and removal of certain amend the Hazardous Materials These recommendations are amended entries to the List of Marine Regulations to maintain alignment with and updated biennially by the Pollutants. corresponding provisions of Committee of Experts and are —New packaging requirements for international standards. Because of distributed to nations throughout the explosives. recent changes to the International world. They serve as the basis for national, regional, and international —More specific tests and criteria for Maritime Dangerous Goods Code (IMDG classifying and assigning packing Code), the International Civil Aviation modal regulations (specifically the IMDG Code, issued by the International groups to flammable solids, Organization’s Technical Instructions pyrophoric liquids and solids, self- for the Safe Transport of Dangerous Maritime Organization (IMO), and the ICAO Technical Instructions, issued by heating materials and water reactive Goods by Air (ICAO Technical materials. Instructions), and the United Nations the ICAO Dangerous Goods Panel). In 49 CFR 171.12, the HMR authorize —New definitions and packing group Recommendations on the Transport of assignments for Division 5.1 solid and Dangerous Goods (UN shipments prepared in accordance with the IMDG Code if all or part of the liquid materials based on new test Recommendations), these proposed methods and criteria. revisions are necessary to facilitate the transportation is by vessel, subject to certain conditions and limitations. —Revised definitions and packaging transport of hazardous materials in requirements for Division 5.2, Organic international commerce. Offering, accepting and transporting hazardous materials by aircraft, in Peroxides including amendment of DATES: Comments must be received by conformance with the ICAO Technical the diluent type B definition and November 25, 1996. Instructions, and by motor vehicle requirements pertaining to the use of ADDRESSES: Address comments to the either before or after being transported diluents for desensitization of organic Dockets Unit (DHM–30), Research and by aircraft, are authorized in § 171.11 peroxides. Special Programs Administration, U.S. (subject to certain conditions and —New criteria for classifying and Department of Transportation, limitations). assigning packing groups to mixtures Washington, D.C. 20590–0001. On December 29, 1994, RSPA issued of Division 6.1 materials possessing Comments should identify the docket a final rule [Docket HM–215A; 59 FR oral and dermal toxicity hazards. and be submitted in five copies. Persons 67390] amending the HMR by —Addition of new self-reactive wishing to receive confirmation of incorporating changes to more fully substances and revision of certain receipt of their comments should align the HMR with the seventh and other self-reactive substances, based include a self-addressed stamped post eighth revised editions of the UN on amendments to Table 14.4 in the card. The Dockets Unit is located in Recommendations, Amendment 27 to UN Recommendations. Room 8421 of the Nassif Building, 400 the IMDG Code and the 1995–96 ICAO —Amendments to the requirements for Seventh Street, SW., Washington, D.C. Technical Instructions. The final rule 31HZ2 composite intermediate bulk Public dockets may be reviewed provided consistency with international containers (IBCs). between the hours of 8:30 a.m. and 5 air and sea transportation requirements III. Summary of Regulatory Change by p.m. Monday through Friday, except for which became effective January 1, 1995. Section Federal holidays. This NPRM proposes changes to the FOR FURTHER INFORMATION CONTACT: Bob HMR based on the ninth revised edition Part 171 Richard, Assistant International of the UN Recommendations, the 1997– Section 171.7. Various American Standards Coordinator, telephone (202) 98 ICAO Technical Instructions, and Society for Testing and Materials 366–0656, or Beth Romo, Office of Amendment 28 to the IMDG Code. It is (ASTM) standards would be added or Hazardous Materials Standards, intended to more fully align the HMR updated, including an ASTM standard telephone (202) 366–8553, Research and with international air and sea transport for flash point determination (ASTM D– Special Programs Administration, U.S. requirements which become effective on 3828–93) which establishes whether a Department of Transportation, 400 January 1, 1997. Other proposed material is capable of sustaining Seventh Street, S.W., Washington, D.C. changes are based on feedback from the combustion in relation to classifying 20590–0001. regulated industry and RSPA initiatives. flammable liquids (ASTM D–4206–94), Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules 55365 and the ASTM standard for assessing indication of the Division 4.3 hazard solid). Domestic exceptions for these corrosivity to metals (ASTM G 31–72 class as part of the basic description on explosives would be incorporated into (Reapproved 1995)). ASTM D–3828–93 shipping papers. In addition, packagings the proposed explosive packing is the Standard Test Method for Flash are required to be labeled with Division instructions, where applicable. Point by Small Scale Closed Tester. This 4.3 labels, and transport vehicles and New entries would be added for method is equivalent to ASTM D–3278 bulk packagings are required to display compressed gases and liquefied gases but specifically applies to testing Division 4.3 placards. Furthermore, which are toxic and also meet petroleum products and lubricants. emergency responders primarily use the flammable, corrosive, or oxidizing ASTM D 4206–89 (Reapproved 1994) UN number or shipping description as criteria. Standard Test Method for Sustained a basis for determining appropriate Packaging authorizations for the Burning of Liquid Mixtures by the actions to be taken in the initial stages current entry ‘‘Gas, refrigerated liquid’’ Setaflash Apparatus (Open Cup) is of an incident involving hazardous would be revised to reference the equivalent to the test method currently materials. packaging provisions for cryogenic provided in Part 173, Appendix H— The words ‘‘Toxic Inhalation Hazard’’ liquids. In addition, two new entries Method of Testing for Sustained would be added as an alternative to ‘‘Gas, refrigerated liquid, flammable, Combustibility. ‘‘Poison Inhalation Hazard’’ or n.o.s.’’ and ‘‘Gas, refrigerated liquid, In addition, the most current versions ‘‘Inhalation Hazard’’ and ‘‘Toxic’’ or oxidizing, n.o.s.’’ would be added. of the ICAO Technical Instructions, the ‘‘Toxic Gas’’ would be added as Several entries, such as Phenyl IMDG Code, the UN Recommendations alternatives to ‘‘Poison’’ or ‘‘Poison isocyanate and Phosphorous trichloride, and the UN Manual of Tests and Criteria Gas’’. would be amended by revising the would be incorporated. Two references New provisions would be added, as primary hazard class in Column (3) and/ would be added for incorporation under discussed above for § 171.8, to allow or Packing Group in Column (5). For the Transportation of Dangerous Goods only aerosols meeting the definition of some entries, such a change in hazard (TDG) Regulations issued by Transport ‘‘aerosol’’ in § 171.8 or small receptacles class or packing group also would result Canada. These new entries reference containing gas conforming to §§ 173.304 in a corresponding removal of the ‘‘+’’ Schedule 21 and Schedule 22, which and 173.306 to be imported in in Column (1). were adopted in 1995. accordance with the ICAO Technical In Column (2) of the HMT, several Section 171.8. A new definition for Instructions, IMDG Code and TDG proper shipping names are listed in ‘‘Aerosol’’ would be added, consistent regulations. Roman type, indicating that they are with provisions of § 173.306(a)(3). The authorized proper shipping names. definition for aerosols in the IMDG Code Part 172 However, they are not listed as proper and the ICAO Technical Instructions Section 172.101. A new paragraph shipping names under the UN includes containers that are filled solely (c)(14) would be added to allow isomers Recommendations, the ICAO Technical with a gas, whereas aerosol containers of materials listed in the HMT which Instructions, or the IMDG Code. For authorized in § 173.306(a)(3) may be meet the same hazard class, subsidiary consistency with the international charged with a gas only for the purpose risk and packing group to be identified regulations, RSPA proposes to amend a of expelling a liquid, powder or paste. using the listed shipping description. A number of proper shipping names, Corresponding proposed changes in new paragraph (c)(15) would be added including ‘‘Aircraft evacuation slides’’, §§ 171.11, 171.12 and 171.12a would to allow hydrates of inorganic from Roman type to italics to indicate clarify the proposed definition of substances to be described using the that they are no longer authorized aerosols as it applies to aerosols proper shipping name for the equivalent proper shipping names. RSPA is not imported in accordance with the ICAO anhydrous material. Paragraph (f) would proposing to remove them from the Technical Instructions, the IMDG Code be revised to acknowledge that Division § 172.101 Table because they provide and the TDG Regulations. 6.2 materials (other than regulated guidance by referencing authorized In addition, a definition for ‘‘SADT’’ medical waste) do not have packing proper shipping names, e.g., ‘‘Calcium (self-accelerating decomposition group assignments. selenate, see Selenates or Selenites’’. temperature) would be added with a The Hazardous Materials Table (HMT) Certain entries, such as reference to § 173.21(f) for determining would be revised as follows: Diphenylmethane-4,4′-diisocyanate or SADT. New definitions for salvage New Packing Group I entries would Methyl benzoate, (which do not meet packagings and intermediate packagings be added for certain commodities, toxicity criteria for a Division 6.1 would be added consistent with those in including Adhesives, Resin solutions, Packing Group III material), would be the UN Recommendations. Intermediate Paint and Paint-related material, removed. These commodities were packagings are prescribed in Part 173 for Disinfectants, Dyes, and Oxidizing deleted from the List of Dangerous certain explosives. liquid, n.o.s. Goods in the ninth revised edition of the Sections 171.11, 171.12, and 171.12a. An alternative proper shipping name UN Recommendations. These sections authorize shipments ‘‘Refrigerant gas’’ plus the ‘‘R’’ number Various proper shipping names would prepared under the ICAO Technical would be added to numerous entries, be clarified by the addition or removal Instructions, the IMDG Code, and the consistent with the ninth revised of the word ‘‘compressed’’, ‘‘inhibited’’, TDG Regulations, respectively. The edition of the UN Recommendations. ‘‘liquefied’’ or ‘‘solution’’. following proposed changes apply to all Current entries that contain an italicized RSPA is proposing adjustments to three sections. ‘‘R’’ number would be revised to quantity limits for certain materials RSPA is proposing to remove the include the ‘‘R’’ number in Roman type identified as poisonous by inhalation requirement to include the words as part of the ‘‘Refrigerant gas’’ when transported by passenger or cargo ‘‘Dangerous When Wet’’ on shipping alternative proper shipping name. aircraft or passenger railcar. Numerous papers in association with the basic Certain Class 1 entries assigned NA proposed changes are consistent with description for Division 4.3 materials. numbers for domestic transportation current quantity limits prescribed in the This proposal is based on RSPA’s belief would be removed. These include ICAO Technical Instructions. Certain that the ‘‘Dangerous When Wet’’ hazard Explosive pest control devices and other materials would be forbidden for is adequately communicated through an Propellant explosives (both liquid and transportation by aircraft or passenger 55366 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules railcar because they have been substances for which no label was the test medium. It is RSPA’s view that identified as poisonous by inhalation required must now display a Class 9 additional costs incurred by such and assigned Hazard Zone A for liquids label. marking and performance testing and Hazard Zones A and B for gases. Section 172.203. RSPA is proposing to requirements are not justified because Other changes to the HMT include: (1) remove the requirement in paragraph (j) salvage packaging provisions currently creating separate entries for ‘‘Ammonia, that the words ‘‘Dangerous When Wet’’ prescribed in the HMR are adequate. anhydrous’’ and ‘‘Ammonia solutions’’; be annotated on shipping papers. As Section 173.21. The last sentence of (2) adding ‘‘First aid kits’’ as an discussed previously, RSPA believes paragraph (f) would be revised to alternative proper shipping name for the that the ‘‘Dangerous When Wet’’ hazard correctly reference the UN Manual of entry ‘‘Chemical kits’’ if the first aid kits is adequately communicated through an Tests and Criteria. contain hazardous materials; (3) adding indication of the Division 4.3 hazard Section 173.32c. Based on a letter new entries for ‘‘Chemical sample, class as part of the basic description on from an intermodal portable tank owner toxic, liquid (or solid)’’ to recognize shipping papers. In addition, packagings requesting consistency with a provision samples taken for analysis in are required to be labeled with Division in the IMDG Code, RSPA is proposing conjunction with procedures addressing 4.3 labels, and transport vehicles and to revise paragraph (j) to require that an antiproliferation measures associated bulk packagings are required to display intermodal (IM) portable tank or its with chemical weapons; (4) combining Division 4.3 placards. Furthermore, compartment having a volume greater entries for ‘‘Chlorite solution’’ and emergency responders primarily use the than 7500 L must have a minimum ‘‘Hypochlorite solutions’’; (5) removing UN number or shipping description as filling density of 80 percent. Currently, ‘‘Methyl alcohol’’ as an authorized a basis for determining appropriate the HMR prohibits any IM portable tank proper shipping name for ‘‘Methanol’’ actions to be taken in the initial stages or compartment of an IM portable tank but retaining it in italics as a cross of an incident involving hazardous having a volume greater than 5000 L reference; (6) adding a Class 3 materials. from being filled to less than 80 percent subsidiary risk in Column (6) for several The list of generic proper shipping by volume. This proposed change is entries; and (7) creating a new entry for names which require inclusion of a consistent with other international ‘‘Aerosols (engine starting fluid)’’ to technical name in paragraph (k)(3) codes related to minimum filling indicate that these aerosols are would be amended by adding several requirements. RSPA is soliciting prohibited on both passenger and cargo entries for hydrocarbon gases, comments concerning how many only aircraft. hydrocarbon gas mixtures, and compartmented IM portable tanks are Appendix B to § 172.101. A number of compressed or liquefied toxic gases currently in service, and the capacities materials would be added, removed or which have a subsidiary hazard of of those tanks. amended in the HMR’s List of Marine oxidizer, corrosivity or flammability. Section 173.35. Under the IMDG Pollutants. The changes would be based In addition, RSPA is proposing to add Code, 31HZ2 composite IBCs are on Amendment 27 (to the extent not the word ‘‘Toxic’’ and the phrase required to be transported in closed already incorporated in HM–215A) and ‘‘Toxic-Inhalation Hazard’’ in paragraph freight containers or transport vehicles Amendment 28 of the IMDG Code. (m)(3) as an alternative to ‘‘Poison’’. for transportation by vessel. RSPA is not Section 172.102. A new special RSPA also is proposing a new paragraph proposing any comparable requirement provision 15 would be added to (m)(4) to provide an exception from the for domestic transportation by any mode prescribe quantity limits and packaging requirement to indicate on a shipping at this time. for chemical kits and first aid kits. Other paper that a material is toxic if the Section 173.60. This section would be special provisions would be added to toxicity of the material is based solely amended for consistency with the UN authorize reclassification for certain on corrosive destruction of tissue rather Recommendations. The proposed commodities and to provide exceptions than systemic poisoning. This proposed amendments are largely editorial and based on testing, concentrations, or exception corresponds to an exception serve to streamline and consolidate stabilization for materials such as from subsidiary risk labeling adopted general requirements for packaging Maneb, aqueous solutions of inorganic under HM–215A. explosives while eliminating redundant and unnecessary requirements. These solid nitrates, Ferrocerium, and Part 173 Ammonium nitrate. proposed amendments serve to more A new special provision A25 would Section 173.3. Paragraph (c)(3) would clearly convey the general packaging be added to authorize polyester resin be amended to authorize the word requirements applicable to packaging kits in certain quantities to be packaged ‘‘SALVAGE’’ as an alternative marking explosives for transportation without in non-specification packagings for for salvage drums. In addition, a new imposing new requirements. transportation by aircraft. paragraph (c)(7) would be added to Section 173.62. The Explosives Table, In addition to revising the proper allow the use of salvage packagings which identifies explosives packing shipping name ‘‘Aluminum smelting by- which have been certified and marked methods, would be revised to be products or Aluminum remelting by- to UN standards. However, RSPA is not consistent with recent changes adopted products’’ (formerly Aluminum proposing to make mandatory other in the UN Recommendations. New processing by-products), a new special marking requirements adopted in the packaging methods have been provision B115 would be assigned to UN Recommendations such as: (1) developed by the UN Committee of this entry to permit certain non- adding the letter ‘‘T’’ in the package Experts on the Transport of Dangerous specification bulk packagings for these specification markings following the Goods. This effort incorporated products. package identification code (e.g. 1A2T/ suggestions from the explosives Special provision N50, which Y300/...); (2) annotating the words industry and national defense provides an exception from Class 9 ‘‘SALVAGE PACKAGING’’ after the departments, including the US labeling for marine pollutants that are basic description on the shipping Department of Defense. The new not hazardous substances or hazardous papers; and (3) adopting salvage methods would be significantly more wastes, would be removed. This is packaging performance tests requiring flexible than the methods currently consistent with Amendment 28 of the salvage packagings to be tested at the prescribed in the Explosives Table and IMDG Code, which requires that Class 9 Packing Group II level using liquid as would incorporate a broader range of Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules 55367 options for authorized inner, The paragraph (d) table of particular of the sample in more than five minutes intermediate and outer packagings than packaging requirements and exceptions but not more than ten minutes. currently permitted. In several would be removed, as these provisions In paragraph (c), Packing Group II and instances, inner and intermediate would be incorporated into the III assignment criteria for self-heating packagings would no longer be required. proposed Explosives Packing materials would be amended. The For instance, certain blasting explosives Instruction Table and the general criteria would be revised to more with hard outer casings would not be packing requirements in § 173.60. accurately account for the volume of required to be packaged in inner For clarity, and because of the material being transported. For instance, packagings. A new packing method extensive changes to the content and certain self-heating materials which are (Packing Instruction 117) would format of the tables, the entire proposed packaged and transported in volumes incorporate authorization to transport Explosives Table and Explosives less than 3 cubic meters or in quantities certain Division 1.1D and 1.5D Packing Instruction Table have been less than 450 liters would not be subject explosives in IBCs. Many of the reprinted. to the requirements of the HMR. explosive packing methods amendments Section 173.124. Amendments to the In paragraph (d), the packing group were based on comments received from test methods for flammable solids, assignment criteria would be amended Department of Defense and explosive pyrophoric materials, self heating consistent with the UN industry representatives, and on substances and water reactive materials Recommendations. These amendments competent authority approvals and are proposed, consistent with the UN would not significantly affect the exemptions issued to shippers of Recommendations. The Self-Reactive packing group assignment criteria, but explosives. Materials Table would be updated to would be purely editorial to clarify the The current packing method include seven new substances, meaning of ‘‘spontaneous ignition.’’ consistent with the UN Section 173.127. Proposed changes to designations (for example, E–15, E–159) Recommendations. In the ninth revised this section would amend the definition would be replaced by Explosives edition of the UN Recommendations, for solid oxidizers and introduce a new Packing Instructions consistent with Figure 14.2 (Flow Chart for Self- definition, test, and criteria for liquid those adopted in the ICAO Technical Reactive Substances) was amended. oxidizers. Liquid oxidizers would not be Instructions. The proposed Packing Paragraph (a)(2)(iv) of that chart is used classified by analogy as currently Instructions would use designations to determine the generic type for a self- required in the HMR. The references to ranging from Packing Instruction 101 reactive material. Appendix F would be replaced by a through 144. Twenty-nine Packing Section 173.125. The criteria for reference to the UN Manual of Tests and Instructions are proposed. Packing classification and packing group Criteria. Instruction 101 would be similar to E– assignment for readily combustible Paragraph (b)(2) would be revised to 103 in the current regulations in that it materials of Division 4.1 would be include a statement indicating that the would cover explosives requiring amended for consistency with the UN material must be tested in the competent authority packaging Recommendations. Reference to concentration offered for transport. The approval. Packing Instructions 110 Appendix E (which would be removed) criteria for packing group assignment through 117 would apply to explosive would be replaced by references to the would be revised to specify the ratios of substances. Packing Instructions 130 UN Manual of Tests and Criteria. solid oxidizing material and cellulose through 144 would apply to explosive In paragraph (b), the UN burning rate used in assessing the burning articles. test and criteria for classification would characteristics for comparison with the Under the current requirements five be incorporated. The classification burning characteristics of potassium packing methods require competent criteria for readily combustible bromate, potassium perchlorate or authority approval (E–102, E–103, E– materials would be amended to require potassium persulphate and cellulose 138, E–146 and E–149). The proposed powdered, granular and pasty materials mixtures. The revised criteria would be Packing Instruction 101 would include to be classified in Division 4.1 when the clearer, more precise and would all explosives requiring competent burning time for one or more of the test eliminate the ambiguity associated with authority packaging approval under a runs, according to the UN burning rate the criteria currently provided in the single packing method. In addition, test method, is less than 45 seconds or HMR. many explosives (particularly those the rate of burning is more than 2.2 Paragraph (b)(3) would be replaced shipped under not otherwise specified mm/s. Powders of metals or metal alloys with packing group assignment criteria (n.o.s.) entries) which currently require would be classified in Division 4.1 for liquid oxidizers adopted in the ninth competent authority packaging approval when they can be ignited and the revised edition of the UN would be assigned to specific packing reaction spreads over the whole length Recommendations. Incorporating methods eliminating the requirement for of the sample in 10 minutes or less. specific criteria for liquid oxidizers the competent authority to approve the Readily combustible solids would be would provide a more precise means for packaging for these explosives. A assigned to Packing Group II if the shippers to classify these products and statement indicating that Packing burning time is less than 45 seconds and would eliminate ambiguity involved in Instruction 101 may be used for any the flame passes the wetted zone. classifying these materials by analogy. explosive, subject to the approval of the Packing Group II would be assigned to Section 173.128. In paragraph (c)(3) Associate Administrator for Hazardous powders of metal or metal alloys if the the reference to the UN Manual of Tests Materials Safety, would be added to zone of reaction spreads over the whole and Criteria would be amended to authorize the competent authority to length of the sample in five minutes or reflect its correct title. Paragraph (d) approve packagings not covered in the less. Packing Group III would be would be amended to update the Explosives Packing Instructions. If assigned if the burning time is less than reference to Figure 11.2 (Classification adopted, these amendments would 45 seconds and the wetted zone stops and Flowchart Scheme for Organic enhance safety, provide greater the flame propagation for at least four Peroxides). packaging flexibility and reduce the minutes. Packing Group III would be Section 173.132. A new paragraph regulatory and paperwork burden on assigned to metal powders if the (b)(3)(iii) would be added to clarify shippers of explosives. reaction spreads over the whole length when solid and liquid materials are 55368 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules required to be tested for acute toxicity lithium or lithium alloy to be designated removed. The Packing Method Table for by inhalation. Current paragraph (c) as Class 9 when transported by Generic Types in paragraph (c)(3) would would be redesignated as paragraph (d), passenger or cargo aircraft. This would be removed because the information is and a new paragraph (c) would be also apply to lithium cells and batteries specifically listed in the Organic added to authorize three methods for contained in equipment under specified Peroxides Table, and paragraph (c)(4) use in classifying and assigning packing conditions. would be redesignated paragraph (c)(3). groups to mixtures of materials RSPA is also proposing to expand the Paragraph (d) would be revised to possessing oral and dermal toxicity types of packagings authorized for consolidate two tables specifying characteristics. transporting cells and batteries by packagings for liquid and solid organic Section 173.136. A new paragraph (c) aircraft to include an array of boxes, peroxides and self-reactive materials would be added to clarify that skin drums, and jerricans. Additionally, into one table for both liquids and corrosion test data developed prior to RSPA is proposing to eliminate the solids. September 30, 1995, would continue to requirement for equipment containing Paragraph (e)(5) would be revised to be valid. In the preamble to the HM– lithium cells and batteries to be authorize the transport of stabilized 215A final rule (December 29, 1994; 59 packaged in waterproof outer packaging peroxyacetic acid, type F (containing FR 67400), RSPA stated that it would if the equipment itself is constructed to not more than 17 percent peroxyacetic not require retesting of materials be waterproof (i.e., lifesaving equipment acid) in type 31A IBCs. This proposal is classified under the previous test designed to function underwater). based on a competent authority method in Appendix A of Part 173. Sections 173.201–173.203 and approval issued to authorize the use of Section 173.137. Paragraph (b) would 173.211–173.213. Aluminum jerricans, 31A stainless steel IBCs. A be revised to clarify that, when 3B1 or 3B2, would be added as corresponding proposal made by the determining whether a material meets authorized packagings in each of these United States has been tentatively Class 8 Packing Group II, the material sections. approved by the UN Committee of cannot meet Class 8 Packing Group I. Section 173.220. Consistent with Experts for incorporation into the tenth Section 173.152. Limited quantity proposed changes in § 176.905 for wet revised edition of the UN provisions would be added for polyester batteries transported by vessel, Recommendations. resin kits being transported by highway, paragraph (c)(1) would be revised to Section 173.226. Paragraph (c)(1) rail or vessel. remove the reference to § 176.905 and to would be amended to add aluminum Section 173.162. A new sentence state that a motor vehicle or mechanical jerricans as an authorized packaging. would be added at the end of the equipment which is electrically Sections 173.316 and 173.318. These paragraph to provide an exception from powered is not subject to the HMR. sections would be amended by adding the HMR for small quantities of gallium Section 173.224. In paragraph (b), the a requirement for mixtures of cryogenic contained in manufactured articles or Self-Reactives Materials Table would be liquids, where charging requirements apparatuses. revised by adding seven new entries. are not specifically prescribed, to be Section 173.166. This section would The Packing Method Table for Generic shipped in packagings approved by the be revised to remove all references to Types in paragraph (c)(3) would be Associate Administrator for Hazardous ‘‘seat-belt modules,’’ consistent with removed because the information is Materials Safety. changes in the UN Recommendations. specifically listed in the Self-Reactives Appendix E and Appendix F. The Packaging provisions in paragraph (e) Materials Table, and paragraph (c)(4) guidelines for classification and packing would be revised to add drums, would be redesignated paragraph (c)(3). group assignment for Classes 4 and 5 jerricans, and plastic boxes to the array Section 173.225. Paragraph (b) would be removed. RSPA believes the of authorized packagings. In addition to explains column headings in the UN Manual of Tests and Criteria is a non-specification containers currently Organic Peroxide table. Specifically, more appropriate reference for these test authorized for transporting air bags paragraph (b)(2) describes the methods. By removing Appendix E and within a controlled distribution system, information comprised in the column F, RSPA will decrease the number of RSPA is proposing to also specifically entitled ‘‘ID Number.’’ The word amendments to the HMR necessary for authorize dedicated handling devices. ‘‘Exempt’’ occasionally appears in place consistency with the UN Manual and Section 173.185. This section would of an identification number, but is not will reduce the number of pages in the be revised for consistency with changes defined in § 173.225. In this notice, HMR. adopted in the ninth revised edition of RSPA proposes to amend paragraph the UN Recommendations and in the (b)(2) of § 173.225 by adding a statement Part 175 ICAO Technical Instructions. to clarify that the word ‘‘Exempt,’’ if it Section 175.10. Paragraph (a)(22) Currently there are different quantity appears in the Organic Peroxide Table, would be amended to allow mercury limitations in the HMR for determining means that the material is not regulated thermometers (in addition to mercury whether lithium cells and batteries may as an organic peroxide. barometers) to be carried in carry-on be designated as items of Class 9 on the In paragraph (b)(4)(ii), the use of type baggage by a representative of a basis of whether they meet the tests and B diluents for desensitization of organic government weather bureau or similar criteria provided in the UN Manual of peroxides would be authorized for all official agency, provided the individual Tests and Criteria. These limitations organic peroxides provided that the advises the aircraft operator of its also apply to lithium cells and batteries boiling point is at least 60 °C (140 °F) presence in the baggage. contained in equipment. The limitations greater than the SADT of the organic are based on whether the cells or peroxide in a 50 kg package. Paragraph Part 176 batteries will be transported on (b)(6) would be revised to indicate that Section 176.78. Paragraph (k), which passenger or cargo aircraft. Consistent lower control temperatures are required pertains to stowage of power-operated with the ICAO Technical Instructions, when IBCs and bulk packagings are industrial trucks on board a vessel, RSPA is proposing to allow cells used. would be revised to correspond to containing not more than 12 grams of Paragraph (c)(2), which prohibits IBCs proposed revisions in § 176.905. lithium or lithium alloy and batteries and bulk packagings unless authorized Section 176.84. A new note 17 would containing not more than 500 grams of through an approval, would be be added to prescribe segregation for a Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules 55369 compressed or liquefied gas which is requirement would be added indicating reconditioning, repairing, or testing of a toxic, flammable and corrosive. that IBCs of type 31HZ2 must be limited packaging or container represented, Section 176.905. RSPA is proposing to to a capacity of not more than 1250 marked, certified, or sold as qualified revise the provisions for transporting liters. for use in transporting hazardous motor vehicles or mechanical Section 178.815. In paragraph (c)(3) material. equipment powered by internal the words ‘‘which bear the stacking This notice of proposed rulemaking combustion engines by vessel to reflect load’’ would be added to clarify that addresses covered subjects under items recent changes which have occurred in rigid plastic IBCs and composite IBCs i, ii, iii and v above and, if adopted as the IMDG Code and in response to with plastic outer packagings need to be final, would preempt State, local, or comments received during public tested for 28 days at 40 °C (104 °F) when Indian tribe requirements not meeting outreach meetings. In Amendment 27 of the plastic outer packagings bear the the ‘‘substantively the same’’ standard. the Code, the proper shipping name stacking load. As a result of this Federal hazardous materials ‘‘Engines, Internal Combustion’’, proposed change, IBCs with plastic transportation law provides at UN3166 was added in order to regulate outer packagings which are designed § 5125(b)(2) that if DOT issues a motor vehicles and other equipment with metal corner posts which bear the regulation concerning any of the powered by internal combustion stacking load would not be required to covered subjects DOT must determine engines. However, this proper shipping be tested for 28 days at 40 °C (104 °F). and publish in the Federal Register the name has been removed and these RSPA is specifying a deadline for effective date of Federal preemption. materials were deregulated in comments that is less than the 60 days The effective date may not be earlier Amendment 28 of the IMDG Code. recommended in Executive Order than the 90th day following the date of Although RSPA is not providing total 12866. This shorter comment period is issuance of the final rule and not later relief for the transport of motor vehicles intended to enable RSPA to develop and than two years after the date of issuance. by vessel, it is appropriate to modify the issue a final rule to coincide with RSPA has determined that the effective vessel carriage provisions to allow international standards which become date of Federal preemption for these battery cables to remain connected in effective on January 1, 1997. RSPA will requirements will be 180 days after the transport and allow vehicles transported consider late-filed comments to the effective date of a final rule under this on roll-on roll-off ships to be greatest extent practicable. docket. Thus, RSPA lacks discretion in transported unregulated. Additionally, this area, and preparation of a revisions to this section would clarify IV. Rulemaking Analyses and Notices federalism assessment is not warranted. transport provisions for vehicles fueled A. Executive Order 12866 and DOT C. Regulatory Flexibility Act with compressed gas and for certain Regulatory Policies and Procedures battery-powered vehicles. This proposed rule would incorporate This proposed rule is not considered changes introduced in the ninth revised Part 178 a significant regulatory action under edition of the UN Recommendations, Section 178.511. This section would section 3(f) of Executive Order 12866 the 1997–98 ICAO Technical be amended to adopt requirements for and, therefore, was not reviewed by the Instructions, and Amendment 28 to the aluminum jerricans consistent with the Office of Management and Budget. The IMDG Code. It would apply to offerors UN Recommendations. Packaging codes rule is not considered a significant rule and carriers of hazardous materials and 3B1 and 3B2 would be added. Paragraph under the Regulatory Policies and would facilitate the transportation of (b) would be amended to incorporate Procedures of the Department of hazardous materials in international construction requirements for Transportation [44 FR 11034]. commerce by providing consistency aluminum jerricans consistent with the with international requirements. U.S. B. Executive Order 12612 UN Recommendations. companies, including numerous small Section 178.703. In paragraph (b)(6) This proposed rule has been analyzed entities competing in foreign markets, requirements for marking inner in accordance with the principles and will be forced to comply with a dual receptacles of 31HZ2 composite IBCs criteria contained in Executive Order system of regulation, to their economic would be added. This would require all 12612 (‘‘Federalism’’). Federal disadvantage, if the changes proposed in inner receptacles to be marked with the hazardous materials transportation law, this NPRM are not adopted. The code number designating the 49 U.S.C. 5701–5127, contains an proposed changes are intended to avoid intermediate bulk container design type, express preemption provision (49 U.S.C. this result. I certify that this proposal the name or symbol of the manufacturer, 5125(b)) that preempts State, local, and will not, if promulgated, have a the date of manufacture and the country Indian tribe requirements on certain significant economic impact on a authorizing the allocation of the mark. covered subjects. Covered subjects are: substantial number of small entities. In addition, where the outer casing of a (i) the designation, description, and This certification is subject to 31HZ2 IBC could be dismantled, each of classification of hazardous material; modification as a result of a review of the detachable parts would be required (ii) the packing, repacking, handling, comments received in response to this to be marked with the month and year labeling, marking, and placarding of proposal. of manufacture and the name or symbol hazardous material; of the manufacturer. (iii) the preparation, execution, and D. Paperwork Reduction Act Section 178.707. In paragraph (c)(2) a use of shipping documents related to The requirements for information new requirement would be added hazardous material and requirements collection have been approved by the indicating that the outer packaging of related to the number, contents, and Office of Management and Budget 31HZ2 composite IBCs must enclose the placement of those documents; (OMB) under OMB control numbers inner receptacles on all sides. In (iv) the written notification, 2137–0034 for shipping papers and paragraph (c)(3) a new requirement recording, and reporting of the 2137–0557 for approvals. Under the would be added indicating that inner unintentional release in transportation Paperwork Reduction Act of 1995, no receptacles of 31HZ2 composite IBCs of hazardous material; or person is required to respond to a must consist of at least three plies of (v) the design, manufacturing, collection of information unless it film. In paragraph (c)(6) a new fabricating, marking, maintenance, displays a valid OMB control number. 55370 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules

E. Regulation Identifier Number (RIN) Packaging and containers, Reporting containers, Reporting and recordkeeping A regulation identifier number (RIN) and recordkeeping requirements. requirements. is assigned to each regulatory action 49 CFR Part 173 In consideration of the foregoing, 49 listed in the Unified Agenda of Federal CFR Chapter I is proposed to be Hazardous materials transportation, Regulations. The Regulatory Information amended as follows: Packaging and containers, Radioactive Service Center publishes the Unified materials, Reporting and recordkeeping Agenda in April and October of each PART 171ÐGENERAL INFORMATION, requirements, Uranium. year. The RIN number contained in the REGULATIONS, AND DEFINITIONS heading of this document can be used 49 CFR Part 175 1. The authority citation for part 171 to cross-reference this action with the Air carriers, Hazardous materials would continue to read as follows: Unified Agenda. transportation, Radioactive materials, Authority: 49 U.S.C. 5101–5127; 49 CFR List of Subjects Reporting and recordkeeping 1.53. requirements. 49 CFR Part 171 2. In the § 171.7(a)(3) Table, under the Exports, Hazardous materials 49 CFR Part 176 entry American Society for Testing and transportation, Hazardous waste, Hazardous materials transportation, Materials, two new entries would be Imports, Incorporation by reference, Maritime carriers, Radioactive materials, added in numerical order. Reporting and recordkeeping Reporting and recordkeeping § 171.7 Reference material. requirements. requirements. (a) Matter incorporated by reference. 49 CFR Part 172 49 CFR Part 178 *** Hazardous materials transportation, Hazardous materials transportation, (3) Table of material incorporated by Hazardous waste, Labels, Markings, Motor vehicles safety, Packaging and reference. * * *

49 CFR Source and name of material reference

******* American Society for Testing and Materials

******* ASTM D 3828±93, Standard Test Methods for Flash Point by Small Scale Closed Tester ...... 173.120 ASTM D 4206±96 Standard Test Method for Sustained Burning of Liquid Mixtures by the Setaflash Apparatus (Open Cup) ...... 173.120

*******

* * * * * Consolidated Edition, as amended by Aerosol means any non-refillable Amendment 28 (1996)’’. metal receptacle containing a gas § 171.7 [Amended] f. Under Transport Canada, the entry compressed, liquefied or dissolved 3. In addition, in § 171.7, in the table ‘‘Transportation of Dangerous Goods under pressure, the sole purpose of in paragraph (a)(3), the following Regulations, 1 July 1985’’ would be which is to expel a nonpoisonous (other changes would be made: amended by revising the reference ‘‘and than a Division 6.1 Packing Group III a. In the entry ASTM D 93–90, the SOR/94–264 (English edition)’’ at the material) liquid, paste, or powder and wording ‘‘D 93–90’’ would be revised to end of the entry to read ‘‘, SOR/94–264 fitted with a self-closing release device read ‘‘D 93–96’’. (English edition), SOR/95–241, and allowing the contents to be ejected in b. In the entry ASTM D 3278–89, the SOR/95–547’’. suspension in a gas. wording ‘‘D 3278–89’’ would be revised to read ‘‘D 3278–96’’. g. Under United Nations, for the entry * * * * * c. In the entry ASTM G 31–72, the ‘‘UN Recommendations on the Intermediate packaging means a Transport of Dangerous Goods, Eighth wording ‘‘(Reapproved 1990)’’ would be packaging which encloses an inner Revised Edition (1993)’’ the wording revised to read ‘‘(Reapproved 1995)’’. packaging or article and is itself ‘‘Eighth Revised Edition (1993)’’ would d. Under International Civil Aviation enclosed in an outer packaging. Organization (ICAO), for the entry be revised to read ‘‘Ninth Revised * * * * * Technical Instructions for the Safe Edition (1995)’’. Transport of Dangerous Goods by Air, h. Under United Nations, for the entry SADT means self-accelerated the date ‘‘1995–1996’’ would be revised ‘‘UN Recommendations on the decomposition temperature. See to read ‘‘1997–1998’’. Transport of Dangerous Goods, Tests § 173.21(f) of this subchapter. e. Under International Maritime and Criteria’’ the wording ‘‘Tests and Salvage packagings means special Organization (IMO), the entry Criteria, Second Edition, 1990’’ would packagings conforming to § 173.3 of this ‘‘International Maritime Dangerous be revised to read ‘‘Manual of Tests and subchapter into which damaged, Goods (IMDG) Code, 1990 Consolidated Criteria, Second Revised Edition, 1995’’. defective or leaking hazardous materials Edition, as amended by Amendment 27 4. In § 171.8, the following definitions packages, or hazardous materials that (1994) (English edition)’’ would be would be added in the appropriate have spilled or leaked, are placed for amended by removing the wording alphabetical order to read as follows: purposes of transport for recovery or ‘‘1990 Consolidated Edition, as disposal. amended by Amendment 27 (1994)’’ § 171.8 Definitions and abbreviations. and adding in its place ‘‘1994 * * * * * * * * * * Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules 55371

5. In § 171.11, paragraph (d)(4) would § 171.12 [Amended] Authority: 49 U.S.C. 5101–5127; 49 CFR be revised and a new paragraph (d)(14) 8. In addition, in § 171.12, the 1.53. would be added, to read as follows: following changes would be made: 12. In § 172.101, new paragraphs a. In paragraph (b)(8)(i), the wording § 171.11 Use of ICAO Technical (c)(14) and (c)(15) would be added to Instructions. ‘‘ ‘Poison-Inhalation Hazard’ ’’ would be revised to read ‘‘ ‘Toxic Inhalation read as follows: * * * * * Hazard’ or ‘Poison Inhalation Hazard’’ ’. (d) * * * § 172.101 Purpose and use of hazardous b. In paragraph (b)(8)(iii), the wording (4) When a hazardous material that is materials table. ‘‘ ‘POISON’ or ‘POISON GAS’’ ’ would regulated by this subchapter for * * * * * be revised to read ‘‘ ‘TOXIC’ or ‘TOXIC transportation by highway is GAS’ or ‘POISON’ or ‘POISON GAS’’ ’. (c) * * * transported by motor vehicle on a c. Paragraph (b)(13) would be public highway under the provisions of (14) Isomers of a material which meet this section, the following requirements removed and reserved. the same hazard class or division, apply: 9. In § 171.12a, a new paragraph subsidiary risks and packing group may (i) The motor vehicle must be (b)(16) would be added to read as be identified using the proper shipping placarded in accordance with subpart F follows: name for that material. of part 172 of this subchapter; and § 171.12a Canadian shipments and (15) Hydrates of inorganic substances (ii) The shipping paper must include packagings. may be identified using the proper an indication that the shipment is being * * * * * shipping name for the equivalent made under the provisions of this (b) * * * anhydrous substance. section or must include the letters (16) Only aerosols as defined in * * * * * ‘‘ICAO.’’ § 171.8 or are assigned UN 2037 may be * * * * * transported in accordance with this § 172.101 [Amended] (14) Only aerosols as defined in section. § 171.8 may be transported in 13. In addition, in § 172.101, in accordance with this section. § 171.12a [Amended] paragraph (f), in the second sentence, 10. In addition, in § 171.12a, the the wording ‘‘Classes 2 and 7 materials § 171.11 [Amended] following changes would be made: and ORM–D materials’’ would be 6. In addition, in § 171.11, the a. In paragraph (b)(5)(i), the words revised to read ‘‘Class 2, Class 7, following changes would be made: ‘‘ ‘Poison Inhalation Hazard’ ’’ would be Division 6.2 (other than regulated a. In paragraph (d)(9)(i), the wording revised to read ‘‘ ‘Toxic Inhalation medical wastes), and ORM–D ‘‘ ‘Poison-Inhalation Hazard’ ’’ would be Hazard’ or ‘Poison Inhalation Hazard’ ’’. materials’’. revised to read ‘‘ ‘Toxic Inhalation b. In paragraph (b)(5)(iii), the wording 14. In § 172.101, the Hazardous Hazard’ or ‘Poison Inhalation Hazard’ ’’. ‘‘ ‘POISON’ or ‘POISON GAS’ ’’ would Materials Table would be amended by b. In paragraph (d)(9)(iii) the wording be revised to read ‘‘ ‘TOXIC’ or ‘TOXIC ‘‘ ‘POISON’ or ‘POISON GAS’ ’’ would GAS’ or ‘POISON’ or ‘POISON GAS’ ’’. removing, adding, or revising, in be revised to read ‘‘ ‘TOXIC’ or ‘TOXIC c. Paragraph (b)(12) would be appropriate alphabetical sequence, the GAS’ or ‘POISON’ or ‘POISON GAS’ ’’. removed and reserved. following entries to read as follows: 7. In § 171.12, a new paragraph (b)(17) § 172.101 Purpose and use of hazardous would be added to read as follows: PART 172ÐHAZARDOUS MATERIALS materials table. § 171.12 Import and export shipments. TABLE, SPECIAL PROVISIONS, HAZARDOUS MATERIALS * * * * * * * * * * COMMUNICATIONS, EMERGENCY (b) * * * RESPONSE INFORMATION, AND (17) Only aerosols as defined in TRAINING REQUIREMENTS § 171.8 may be transported in accordance with this section. 11. The authority citation for part 172 * * * * * would continue to read as follows: 55372 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules (10B) Other (10) Vessel stowage (10A) Location (9B) craft only Cargo air- (9) (9A) Quantity limitations aircraft/rail Passenger Bulk (8C) (8) (8B) 173.***) Non-bulk (§ Packaging ABLE T (8A) Exceptions ATERIALS M (7) Special provisions AZARDOUS (6) Label codes 172.101ÐH § (5) PG . (4) bers tion num- Identifica- NA0350 ************** ******************************************************** (3) vision Hazard class or di- ......

with rel- rel- . . Ammo- Ammo- . .

or or . . (2) . . . liquefied by-products nia solutions, nia solutions, nator nitropropane-1,3- diol ative density less than 0.880 at 15 degrees C in water, with more than 50 percent ammonia liquefied ative density less than 0.880 at 15 degrees C in water, with more than 50 percent ammonia more than 5 percent but less than 16 percent available chlorine er shipping names Hazardous materials descriptions and prop- Ammonia, anhydrous, Aluminum processing [REMOVE] n-Amylene Boosters with deto- 2-Bromo-2- n-Butly bromide Butoxyl Butylpropionate Chemical kits Chlorite solution Ammonia, anhydrous, (1) Symbols 1 ...... D ...... Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules 55373 . . NA0006 NA0412 ********************* ******* ************** ************** ******* **************************** ******* ...... - . ′ . . . . . with

with ...... (PG I and III) liquids, n.o.s. (all three entries) tetraphosphate, liq- uid (PG I and III) Propylene dichloride (both entries) diisocyanate monobutyl ether devices devices not less than 16 percent available chlorine with flammable gas flammable liquid tetraphosphate, solid with more than 5 percent but less than 16 percent available chlorine Furfural Halogenated irritating Hexaethyl Chlorite solution Diethylaminoethanol Diphenylmethane-4,4 Engine starting fluid, Dibromobenzene Hypochlorite solutions Ethylene glycol Explosive pest control Explosive pest control Firefighters, solid Dichloropropane, see Hexaethyl 55374 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules (10B) Other (10) Vessel stowage (10A) Location (9B) craft only Cargo air- (9) (9A) Quantity limitations aircraft/rail Passenger Bulk (8C) (8) (8B) 173.***) Non-bulk (§ Packaging ÐContinued (8A) ABLE Exceptions T (7) Special provisions ATERIALS M (6) AZARDOUS Label codes (5) 172.101ÐH PG § . . (4) bers tion num- Identifica- NA0474 NA0477 ******* ****************************************** ******* ********************* ******* (3) vision Hazard class or di- ...... ex- . . . . .

(2) or with not less . . . .

. in dough, sheet wetted Nitromannite, wetted ganic, n.o.s rial with 16 percent or more available chlo- rine than 40 percent water, by mass or mixture of alcohol and water or extruded rope form omatic nitroderivatives, plosive liquid liquid er shipping names Hazardous materials descriptions and prop- Mannitol hexanitrate, Methyl vinyl ketone Nitrosoguanidine tert-Octyl mercaptan Pentan-2,4-dione Percarbonates, inor- Plastic molding mate- Methyl benzoate Potassium salts of ar- Propellant, explosive, Propellant, explosive, Propylene dichloride Hypochlorite solutions (1) Symbols Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules 55375 40, 48, 85 85, 103 85, 103 40, 57 28, 36 40, 57 A ...... B ...... B ...... D ...... E ...... D ...... B ...... Forbidden 50 kg 100 kg 25 kg 15 kg 25 kg 30 L ...... Forbidden 15 kg 25 kg Forbidden 1 kg Forbidden 1 L ...... None 242 241 314, 315 None 314, 315 243 ...... None 213 212 304 304 211 201 ...... 306 None None None None None 150 ...... B115 B115 T30 A19, A20, N41 N82 B106, B106, 13 B42, T7, 23, A8, ...... 4 ...... 4.3 2.1 2.2 2.3, 8 4.1 4.3 ...... III II ...... I ...... 3 ...... I ...... UN1950 UN1005 UN1005 UN1133 UN3170 UN3317 3 2.3 4.3 4.1 2.1 2.2 ******* ************** ************** ******* ************** ******* ************** ************** ******* . . . Alu- . with . con- or . ). .

each not

containing ) ( with not less engine start- explosive R503 ). . . ) ( by-products chlorotrifluorometh- ane mixture ( urate of isophoronediisocya- nate solution, minum remelting by-products Dinitrophenol, wetted matic nitroderivatives, n.o.s. stant boiling mix- ture 70 percent, by mass a flammable liquid n.o.s. ( ing fluid exceeding 1 L ca- pacity than 20 percent water by mass ...... Aluminum smelting [ADD:] Adhesives Tributylamine Triflouromethane and Ammonia, anhydrous Ammonia, anhydrous Triisocyanatoisocyan- 2-Amino-4,6- Selenium power Sodium percarbonate Sodium salts of aro- Aerosols, flammable, 1 ...... D ...... 55376 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules (10B) Other 40, 57 40, 57 56, 68, 106 40 12, 25, 40 40 26 26 (10) Vessel stowage (10A) Location D ...... D ...... D ...... C ...... A ...... A ...... B ...... B ...... B ...... B ...... (9B) craft only Cargo air- 25 kg 25 kg 10kg 220 L 30L 60 L 50 kg Forbidden 30L 60L (9) ...... (9A) ...... Quantity limitations aircraft/rail Passenger Forbidden Forbidden 10kg 60 L 2.5L 5 L 25 kg 1L Forbidden 5L ...... Bulk (8C) 314, 315 314, 315 None 242 241 242 240 242 None 241 ...... (8) (8B) 173.***) Non-bulk (§ Packaging 304 304 None 203 203 202 213 202 None 203 ÐContinued ...... (8A) ABLE Exceptions None None None 152 150 150 151 154 154 None T ...... (7) ...... T8 B2, N34, T8 B2, N34, T8 Special provisions ATERIALS 13 15 A2, N41, B1, T1 T1 46 A3, A6, A7, A3, A6, A7, 72 M (6) AZARDOUS ...... 4 ...... Label codes ...... 4.1 2.3, 8 2.2 6.1 (5) 172.101ÐH PG ...... 8 ...... 8 ...... 3 ...... 3 ...... 8 ...... § III III III III II II ...... I ...... 9 ...... (4) bers tion num- Identifica- UN2429 UN3241 UN3318 UN3318 UN3315 UN3316 UN1914 UN1126 UN1908 9 5.1 2.2 6.1 4.1 2.3 ******* ******* ******* ******* ******* ******* ******* (3) vision Hazard class or di- ...... 3 ...... 8 First ...... 3

or

containing (2)

liquid or solid ). . toxic aqueous solution nitropropane-1,3- diol relative density less than 0.880 at 15 degrees C in water, with more than 50 percent ammonia relative density less than 0.880 at 15 degrees C in water, with more than 50 percent annomia aid kits ( hazardous mate- rials er shipping names Hazardous materials ...... descriptions and prop- Ammonia, solution, Ammonia, solution, Chemical sample, Calcium chlorate [ADD] 2-Bromo-2- Chemical kits Butyl propionates 1-Bromobutane Chlorite solution (1) Symbols D ...... 1 ...... Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules 55377 17, 40 17, 40 40 40 17, 40 17, 40 40 40 40, 89, 90 40, 89, 90 40, 89, 90 40, 89, 90 D ...... D ...... D ...... D ...... D ...... D ...... D ...... D ...... D ...... D ...... D ...... D ...... E ...... 30L Forbidden Forbidden Forbidden Forbidden Forbidden Forbidden Forbidden Forbidden Forbidden Forbidden Forbidden Forbidden ...... 1L Forbidden Forbidden Forbidden Forbidden Forbidden Forbidden Forbidden Forbidden Forbidden Forbidden Forbidden Forbidden ...... 243 245 314, 315 314, 315 314, 315 314, 315 314, 315 245 314, 315 244 314, 315 314, 315 314, 315 ...... 201 192 302, 305 302, 305 302, 305 302, 305 302, 305 192 302, 305 192 302, 305 302, 305 302, 305 ...... 150 None None None None None None None None None None None None ...... T42 ...... 1 ...... 2 ...... 3 ...... 4 ...... 1 ...... 2 ...... 4 ...... 3 ...... 3 ...... 4 ...... 1 ...... 2 ...... 2.3, 2.1, 8 2.3, 2.1, 8 2.3, 2.1, 8 2.3, 2.1, 8 2.3, 8 2.3, 8 2.3, 8 2.3, 8 2.3, 5.1, 8 2.3, 5.1, 8 2.3,5.1,8 2.3, 5.1, 8 ...... I ...... 3 ...... UN1139 UN3305 UN3305 UN3305 UN3305 UN3304 UN3304 UN3304 UN3304 UN3306 UN3306 UN3306 UN3306 3 2.3 2.3 2.3 2.3 2.3 2.3 2.3 2.3 2.3 2.3 2.3 2.3 ******* ******* . . . .

In- In- In- In-

in- . . . .

Inhala- Inhala- Inhala- Inhala- . . . .

Inhalation Inhalation Inhalation Inhalation ). toxic, corrosive, n.o.s. toxic, flammable, corrosive, n.o.s. toxic, flammable, corrosive, n.o.s. toxic, corrosive, n.o.s. toxic, flammable, corrosive, n.o.s. toxic, flammable, corrosive, n.o.s. toxic, oxidizing, cor- rosive, n.o.s. toxic, corrosive, n.o.s. toxic, corrosive, n.o.s. toxic, oxidizing, cor- rosive, n.o.s. toxic, oxidizing, cor- rosive, n.o.s. cludes surface treatments or coat- ings used for indus- trial or other pur- poses such as vehi- cle undercoating, drum or barrel lin- ing Hazard Zone A Hazard Zone B Hazard Zone C Hazard Zone D halation Hazard Zone A halation Hazard Zone B halation Hazard Zone C halation Hazard Zone D tion Hazard Zone A tion Hazard Zone B tion Hazard Zone C toxic, oxidizing, cor- rosive, n.o.s. tion Hazard Zone D Compressed gas, Compressed gas, Compressed gas, Compressed gas, Compressed gas, Compressed gas, Compressed gas, Compressed gas, Compressed gas, Compressed gas, Compressed gas, Coating solution ( Compressed gas, 55378 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules (10B) Other 40 25 40 40 40 40 (10) Vessel stowage (10A) Location D ...... D ...... D ...... D ...... A ...... A ...... B ...... B ...... A ...... D ...... A ...... B ...... A ...... (9B) craft only Cargo air- 100kg 2.5L 15 kg 60L Forbidden Forbidden 100 kg 60L 2.5L 60L 30L Forbidden Forbidden (9) ...... (9A) ...... Quantity limitations aircraft/rail Passenger 25kg 1 kg 5L 0.5L Forbidden Forbidden 5L 25 kg 0.5L 5L 1L Forbidden Forbidden ...... Bulk (8C) None None 243 243 314, 315 314, 315 243 None 243 242 243 245 314, 315 ...... (8) (8B) ...... 173.***) Non-bulk (§ Packaging 62 304 202 202 302, 305 302, 305 202 213 201 202 202 192 302, 305 ÐContinued ...... (8A) ABLE Exceptions 306 63(f), 63(g) None None None None None None None 150 None None None T ...... (7) ...... T42 T26 Special provisions ATERIALS 104 T8 A7, B10, T15 A1, A19 11, B10 N36,T1 B2, T15, M (6) ...... 3 ...... 4 ...... 1 ...... 2 ...... AZARDOUS ...... Label codes ...... 4.1 8.3 1,4S 2.1 6.1 2.3, 5.1 2.3, 5.1 2.3, 5.1 2.3, 5.1 6.1, 3 (5) 172.101ÐH PG ...... 3 ...... § II II II II II II ...... I ...... 8 ...... I ...... 8 ...... (4) bers tion num- Identifica- UN2623 UN1279 UN0500 UN2037 UN2686 UN3302 UN1903 UN3303 UN3303 UN3303 UN3303 UN1199 UN2801 8 3 8 8 6.1 6.1 4.1 2.1 2.3 2.3 2.3 2.3 1, 4S ******* ******* ******* ******* ************** ******* ******* ******* (3) vision Hazard class or di- ...... flam- Dye ...... for blast- or ...... (2) without a re-

Inhalation Inhalation Inhalation Inhalation ) . toxic, oxidizing, n.o.s. toxic, oxidizing, n.o.s. sive, n.o.s. acrylate corrosive, n.o.s. nonelectric toxic, oxidizing, n.o.s. toxic, oxidizing, n.o.s. Hazard Zone A Hazard Zone B Hazard Zone C Hazard Zone D ing intermediates, liq- uid, corrosive, n.o.s mable lease device, non- refillable er shipping names Hazardous materials descriptions and prop- Compressed gas, Gas cartridges, ( 1,2-Dichloropropane Compressed gas, 2-Diethylaminoethanol Dyes, liquid, corro- 2-Dimethylaminoethyl Disinfectant, liquid, Detonator assemblies, Compressed gas, Compressed gas, Furaldehydes Firelighters (1) Symbols Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules 55379 40 40 40 40, 89, 90 40 40 26 26 40, 89, 90 40, 89, 90 17, 40 17, 40 17, 40 17, 40 D ...... D ...... D ...... D ...... D ...... D ...... D ...... D ...... D ...... D ...... D ...... D ...... D ...... B ...... B ...... Forbidden Forbidden Forbidden Forbidden Forbidden Forbidden Forbidden 30 L 60 L Forbidden Forbidden Forbidden Forbidden Forbidden Forbidden ...... Forbidden Forbidden Forbidden Forbidden Forbidden Forbidden Forbidden 1L 5L Forbidden Forbidden Forbidden Forbidden Forbidden Forbidden ...... 318 318 245 314, 315 314, 315 314, 315 314, 315 242 241 245 314, 315 314, 315 314, 315 245 314, 315 ...... 316 316 192 304 304 304 304 202 203 192 304 304 304 192 304 ...... None None None None None None None 154 154 None None None None None None . . B15, N34, T7 T7 A7, B2, B104, N34, ...... 3 ...... 1 ...... 2 ...... 1 ...... 2 ...... 3 ...... 4 ...... 1 ...... 2 ...... 3 ...... 4 ...... 2.1 2.2, 5.1 2.3, 8 2.3, 8 2.3, 8 2.3, 8 2.3, 5.1, 8 2.3, 2.1, 8 2.3, 2.1, 8 2.3, 2.1, 8 2.3, 2.1, 8 2.3, 2.1, 8 2.3, 2.1, 8 ...... 8 ...... 8 ...... III II ...... UN3312 UN3311 UN3308 UN3308 UN3308 UN3308 UN3310 UN3310 UN3310 UN3309 UN3309 UN3309 UN3309 UN1791 8 2.1 2.3 2.3 2.3 2.3 2.2 2.3 2.3 2.3 2.3 2.3 2.3 2.3 ******* ******* ******* ******* ******* . . . .

In- In- In- In- ). . . .

Inhala- Inhala- Inhala- Inhala- . . cryogenic liq- . . Inhalation Inhalation Inhalation ).

cryogenic liquid uid, oxidizing, n.o.s. ( corrosive, n.o.s. corrosive, n.o.s. corrosive, n.o.s. oxidizing, corrosive, n.o.s. oxidizing, corrosive, n.o.s. flammable, corro- sive, n.o.s. uid, flammable, n.o.s. ( flammable, corro- sive, n.o.s. flammable, corro- sive, n.o.s. flammable, corro- sive, n.o.s. corrosive, n.o.s. uid halation Hazard Zone A halation Hazard Zone B halation Hazard Zone C halation Hazard Zone D tion Hazard Zone A tion Hazard Zone B tion Hazard Zone C tion Hazard Zone D oxidizing, corrosive, n.o.s. Hazard Zone A Hazard Zone B Hazard Zone C ...... Gas, refrigerated liq- Liquefied gas, toxic, Liquefied gas, toxic, Hypochlorite solutions Liquefied gas, toxic, Liquefied gas, toxic, Liquefied gas, toxic, Liquefied gas, toxic, Gas refrigerated liq- Liquefied gas, toxic, Liquefied gas, toxic, Liquefied gas, toxic, Liquefied gas, toxic, Liquefied gas, toxic, 55380 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules (10B) Other 40 40 40 40 IE, 5E 40,102 40, 89, 90 40 (10) Vessel stowage (10A) Location D ...... D ...... D ...... D ...... B ...... D ...... D ...... B ...... 1 ...... (9B) craft only Cargo air- 0.5 kg Forbidden Forbidden Forbidden Forbidden Forbidden Forbidden Forbidden Forbidden (9) (9A) Quantity limitations aircraft/rail Passenger Forbidden Forbidden Forbidden Forbidden Forbidden Forbidden Forbidden Forbidden Forbidden ...... Bulk (8C) None 245 314, 315 314, 315 314, 315 None 244 314, 315 244 ...... (8) (8B) ...... 173.***) Non-bulk (§ Packaging None 304 304 62 227 192 304 304 226 ÐContinued ...... (8A) ABLE Exceptions None None None None None None None None None T ...... (7) B32, B74, T38, T43, T45 B14, B30, B72, T38, T43, T44 Special provisions ATERIALS 118 2, B9, B14, 121 1, 25, B9, M ...... 4 ...... (6) ...... 1 ...... 2 ...... 3 ...... 4 ...... AZARDOUS ...... Label codes ...... 4.1 6.1, 3 6.1, 3, 8 1.1D 2.3, 5.1 2.3, 5.1 2.3, 5.1 2.3, 5.1 2.3, 2.1, 8 (5) 172.101ÐH PG ...... § II ...... I ...... I ...... (4) bers tion num- Identifica- UN3319 UN3023 UN1251 UN3307 UN3307 UN3307 UN3307 UN0133 UN3310 4.1 6.1 2.3 2.3 6.1 2.3 2.3 2.3 1.1D ******* ********************* ******* (3) vision Hazard class or di-

In- In- In- In- . . . . . (2) . .

. . or with not less

Inhalation . oxidizing, n.o.s. oxidizing, n.o.s. oxidizing, n.o.s. oxidizing, n.o.s. oxidizing, corrosive, n.o.s. Nitromannite, wetted 1-Bromobutane Hazard Zone D halation Hazard Zone A halation Hazard Zone B halation Hazard Zone C halation Hazard Zone D wetted than 40 percent water, or mixture of alcohol and water, by mass heptanethiol stabilized with more than 2 percent but not more than 10 per- cent nitroglycerin, by mass, desen- sitized er shipping names Hazardous materials descriptions and prop- Liquefied gas, toxic, Liquefied gas, toxic, Liquefied gas, toxic, Liquefied gas, toxic, Liquefied gas, toxic, Nitroglycerin mixture Mannitol hexanitrate 2-Methyl-2- Methyl vinyl ketoe, n-Butyl bromide, see (1) Symbols Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules 55381 106 106 106 85, 87 26 56, 58, 69, 56, 58, 69, 56, 58, 69, ...... A ...... C ...... C ...... A ...... D ...... E ...... E ...... E ...... B ...... E ...... A ...... A ...... B ...... 30L 220L 30L 301 200 kg 30L 30L 60L 50 kg 100 kg 30L 30L 2.5L ...... 1L 1L 60L 1L 100 kg 1L 1L 5L 15 kg 25 kg 2.5L 2.5L Forbidden ...... 243 243 242 243 None 243 242 241 241 241 241 241 243 ...... 201 201 203 201 213 201 202 203 213 212 203 203 201 ...... 150 150 150 150 155 150 154 154 None None 152 152 None ...... T31 T8 T7 T8, T31 T8, T31 B1, T1 T14 32 B52, T8, B2, N34, B2, N34, B101 B101 T8 A2, T8 127, A2 ...... 3,6.1 4.2 4.2 5.1 5.1 5.1 ...... 9 ...... 8 ...... 8 ...... III III II III III II III III .... I ...... 3 ...... I ...... 3 ...... I ...... 3 ...... I ...... 3 ...... I ...... UN1263 UN2310 UN3314 UN1263 UN3320 UN3313 UN1108 UN1866 UN3211 UN1485 UN3139 3 3 3 3 9 8 4.2 5.1 5.1 5.1 ******* ******* ******* ********************* ******* ******* ******* ******* ******* ...... 3

flam- with . . . in .

(n-amyl- . . .

including paint, self-heating ganic, aqueous so- lution, n.o.s and sodium hydrox- ide solution, aqueous solution [ADD] lacquer, enamel, stain, shellac solu- tions, varnish, pol- ish, liquid filler, and liquid lacquer base including paint thinning, drying, re- moving, or reducing compound ene) compound dough, sheet or ex- truded rope form evolving flammable vapor mable not more than 12 percent sodium borohydride and not more than 40 per- cent sodium hydrox- ide by mass ...... Pentane-2,4-dione Paint related material Organic pigments, 1-Pentane Perchlorates, inor- [ADD] Sodium borohydride Potassium chlorate, Oxidizing liquid, n.o.s. Plastic molding Resin solution, Paint 55382 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules (10B) Other 106 56, 58, 69, 20, 40, 95 20, 40, 95 20, 40, 95 (10) Vessel stowage (10A) Location A ...... D ...... D ...... D ...... D ...... A ...... B ...... D ...... (9B) craft only Cargo air- 500 kg 30L Forbidden 60 L 30L Forbidden Forbidden Forbidden (9) ...... (9A) ...... Quantity limitations aircraft/rail Passenger 50 kg 1L Forbidden 5 L 2.5L Forbidden Forbidden Forbidden ...... Bulk (8C) 318 243 244 243 241 244 244 244 ...... (8) (8B) 173.***) Non-bulk (§ Packaging 316 201 227 202 203 227 227 277 ÐContinued ...... (8A) ABLE Exceptions None None None 152 None None None None T ...... (7) B32, B74, T38, T43, T45 B32, B74, B77, N33, N34, T38, T43, T45 B32, B74, N12, N32, N34, T38, T43, T45 B32, B74, B77, T38, T43, T45 Special provisions ATERIALS T42 2, B9, B14, A2, T8 B110, T14 2, B9, B14, 2, B9, B14, B9, B14, M (6) ...... AZARDOUS ...... Label codes ...... 2.2 6.1,3 5.1 6.1,3 6.1,3 6.1, 3, 8 6.1 6.1, 3 (5) 172.101ÐH PG ...... § III II .... I ...... I ...... I ...... I ...... I ...... (4) bers tion num- Identifica- UN3158 UN2477 UN2428 UN2295 UN2487 UN1695 UN2542 UN2488 2.2 6.1 6.1 6.1 6.1 5.1 6.1 6.1 ******* ******* ******* ******* ************** ******* ******* ******* (3) vision Hazard class or di- ......

cryo- ). (2) . aqueous solution [ADD] bilized uid, n.o.s. ( genic liquid er shipping names Hazardous materials ...... descriptions and prop- Methyl isothiocyanate Sodium chlorate, Methyl chloracetate Phenyl isocyanate [REVISE] Chloroacetone, sta- Tributylamine Cyclohexyl isocyanate Gas, refrigerated liq- (1) Symbols Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules 55383 40 40 40 C ...... D ...... B ...... Forbidden Forbidden 30 L ...... Forbidden Forbidden 1 L ...... 244 314, 315 243 ...... 227 304 202 ...... None None None ...... B15, B32, B74, B77, N34, T38, T43, T45 2, B9, B14, 3, B14 B100, T8 ...... 6.1, 8 2.3, 2.1 6.1, 3, 8 ...... II .... 1 ...... UN1809 UN1082 UN3073 2.3 6.1 6.1 ******* ******* ******* ******* . . . chloride ethylene, inhibited ited Phosphorous tri- Trifluorochloro- Vinylpyridines, inhib- 55384 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules

§ 172.101 [Amended] 15–1. In Column 2, the following 15. In addition, in the § 172.101 hazardous materials descriptions and Hazardous Materials Table, the proper shipping names would be following changes would be made: revised as follows:

Current column 2 entry Revise to read:

Air bag inflators or Air bag modules or Seat-belt pre-tensioners or Seat- Air bag inflators or Air bag modules or Seat-belt pretensioners. belt modules. Aircraft evacuation slides, see Life saving appliances etc ...... Aircraft evacuation slides, see Life saving appliances etc. Aircraft survival kits, see Life saving appliances etc ...... Aircraft survival kits, see Life saving appliances etc. Alcohols, toxic, n.o.s ...... Alcohols, flammable, toxic, n.o.s. Aldehydes, toxic, n.o.s ...... Aldehydes, flammable, toxic, n.o.s. Amyl methyl ketone ...... n-Amyl methyl ketone. Arsenic compounds, liquid, n.o.s ...... Arsenic compounds, liquid, n.o.s. inorganic. Arsenic compounds, solid, n.o.s ...... Arsenic compounds, solid, n.o.s. inorganic. Barium selenate, see Selenates or Selenites ...... Barium selenate, see Selenates or Selenites. Barium selenite, see Selenates or Selenites ...... Barium selenite, see Selenates or Selenites. Battery-powered vehicle or Battery-powered equipment wet battery ...... Battery-powered vehicle or Battery-powered equipment. Boron trifluoride ...... Boron trifluoride, compressed. Bromotrifluoromethane R13B1 ...... Bromotrifluoromethane or Refrigerant gas R13B1. Butane or Butane mixtures ...... Butane. n-Butyl methacrylate ...... n-Butyl methacrylate, inhibited. Butylacrylate ...... Butyl acrylates, inhibited. Calcium selenate, see Selenates or Selenites ...... Calcium selenate, see Selenates or Selenites. Carbon dioxide and oxygen mixtures ...... Carbon dioxide and oxygen mixtures, compressed. Carbon monoxide ...... Carbon monoxide, compressed. Carbon monoxide and hydrogen mixture ...... Carbon monoxide and hydrogen mixture, compressed. Carbonyl fluoride ...... Carbonyl fluoride, compressed. Cartridges, safety, blank, see Cartridges for weapons, blank (UN 0014) Cartridges, safety, blank, see Cartridges for weapons, blank (UN 0014). Cartridges, safety, see Cartridges for weapons, other than blank or Cartridges, safety, see Cartridges for weapons, other than blank or Cartridges, power device (UN 0323). Cartridges, power device (UN 0323). 1-Chloro-1,1-difluoroethanes R142b ...... 1-Chloro-1,1-difluoroethane or Refrigerant gas R142b. 1-Chloro-1,2,2,2-tetrafluoroethane R124 ...... 1-Chloro-1,2,2,2-tetrafluoroethane or Refrigerant gas R124. 1-Chloro-2,2,2-trifluoroethane R133a ...... 1-Chloro-2,2,2-trifluoroethane or Refrigerant gas R133a. Chlorodifluorobromomethane R12B1 ...... Chlorodifluorobromomethane or Refrigerant gas R12B1. Chlorodifluoromethane and chloropentafluoroethane mixture with fixed Chlorodifluoromethane and chloropentafluoroethane mixture or Refrig- boiling point, with approximately 49 percent chlorodifluoromethane, erant gas R502 with fixed boiling point, with approximately 49 per- R502. cent chlorodifluoromethane. Chlorodifluoromethane R22 ...... Chlorodifluoromethane or Refrigerant gas R22. Chloropentafluoroethane R115 ...... Chloropentafluoroethane or Refrigerant gas R115. Chlorotrifluoromethane and trifluoromethane azeotropic mixture with Chlorotrifluoromethane and trifluoromethane azeotropic mixture or Re- approximately 60 percent chlorotrifluoromethane, R503. frigerant gas R503 with approximately 60 percent chlorotrifluoromethane. Chlorotrifluoromethane R13 ...... Chlorotrifluoromethane or Refrigerant gas R13. Coal gas ...... Coal gas, compressed. Copper selenate, see Selenates or Selenites ...... Copper selenate, see Selenates or Selenites. Copper selenite, see Selenates or Selenites ...... Copper selenite, see Selenates or Selenites. Cyanogen, liquefied ...... Cyanogen. Cyclopropane, liquefied ...... Cyclopropane. Deuterium ...... Deuterium, compressed. Diborane ...... Diborane, compressed. Dichlorodifluoromethane and difluoroethane azeotropic mixture with ap- Dichlorodifluoromethane and difluoroethane azeotropic mixture or Re- proximately 74 percent dichlorodifluoromethane, R500. frigerant gas R500 with approximately 74 percent dichlorodifluoro- methane. Dichlorodifluoromethane R12 ...... Dichlorodifluoromethane or Refrigerant gas R12. Dichloroethylene ...... 1,2-Dichloroethylene. Dichlorofluoromethane R21 ...... Dichlorofluoromethane or Refrigerant gas R21. Dichlorotetrafluoroethane R114 ...... 1,2-Dichloro-1,1,2,2-Tetrafluoroethane or Refrigerant gas R114. 1,1-Difluoroethane R152a ...... 1,1-Difluoroethane or Refrigerant gas R152a. 1,1-Difluoroethylene R1132a ...... 1,1-Difluoroethylene or Refrigerant gas R1132a. Difluoromethane ...... Difluoromethane or Refrigerant gas R32. Dimethylaminoethyl methacrylate ...... 2-Dimethylaminoethyl methacrylate. Dinitrogen tetroxide, liquefied ...... Dinitrogen tetroxide. Dipropyl ether ...... Di-n-propyl ether. Disodium trioxosilicate, pentahydrate ...... Disodium trioxosilicate. Ethane, compressed ...... Ethane. Ethyl fluoride ...... Ethyl fluoride or Refrigerant gas R161. Ethylene, acetylene and propylene in mixtures, refrigerated liquid ...... Ethylene, acetylene and propylene mixture, refrigerated liquid. Flammable gas in lighters, see Lighters or lighter refills, containing Flammable gas in lighters, see Lighters or Lighter refills, cigarettes, flammable gas. containing flammable gas. Fuse, instantaneous, non-detonating or Quickmatch ...... Fuse, non-detonating. Heptafluoropropane ...... Heptafluoropropane or Refrigerant gas R227. Hexafluoroethane R1116 ...... Hexafluoroethane, compressed or Refrigerant gas R116. Hexafluoropropylene R1216 ...... Hexafluoropropylene, compressed or Refrigerant gas R1216. Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules 55385

Current column 2 entry Revise to read:

Hydriotic acid, solution ...... Hydriotic acid. Hydrobromic acid solution (four entries) ...... Hydrobromic acid. Hydrocarbon gases, compressed, n.o.s. or Hydrocarbon gases mix- Hydrocarbon gas mixture, compressed, n.o.s. tures, compressed, n.o.s. Hydrocarbon gases, liquefied, n.o.s. or Hydrocarbon gases mixtures, Hydrocarbon gas mixture, liquefied, n.o.s. liquefied, n.o.s. Hydrochloric acid, solution ...... Hydrochloric acid. Hydrofluoric acid solution (both entries) ...... Hydrofluoric acid. Hydrogen sulfide, liquefied ...... Hydrogen sulfide. Isobutane or Isobutane mixtures see also Petroleum gases, liquefied ... Isobutane see also Petroleum gases, liquefied. Isobutyl acrylate ...... Isobutyl acrylate, inhibited. Isobutyl methacrylate ...... Isobutyl methacrylate, inhibited. Isopentane, see Pentane ...... Isopentane, see Pentane. Jet thrust unit (Jato), see Rocket motors ...... Jet thrust unit (Jato), see Rocket motors. Magnesium bisulfite solution, see Bisulfites, aqueous solutions, n.o.s ... Magnesium bisulfite solution, see Bisulfites, aqueous solutions, n.o.s. Mercury iodide ...... Mercury iodide, solid. Methacrylaldehyde ...... Methacrylaldehyde, inhibited. Methanol or Methyl alcohol (both entries) ...... Methanol (both entries). Methyl alcohol see Methanol ...... Methyl alcohol see Methanol. Methyl chloride ...... Methyl chloride or Refrigerant gas R40. Methyl fluoride ...... Methyl fluoride or Refrigerant gas R41. Methylmorpholine ...... 4-Methylmorpholine or n-methylmorpholine. Nitric oxide ...... Nitric oxide, compressed. Nitrogen trifluoride (both entries) ...... Nitrogen trifluoride, compressed. Nitrogen dioxide, liquefied ...... Nitrogen dioxide. Nitrous oxide, compressed ...... Nitrous oxide. 2,5-Norbornadiene or Dicycloheptadiene ...... 2,5-Norbornadiene or Bicyclo[2,2,1]hepta-2,5-diene, inhibited. Octafluorobut-2-ene ...... Octafluorobut-2-ene or Refrigerant gas R1318. Octafluorocyclobutane RC318 ...... Octafluorocyclobutane or Refrigerant gas RC318. Octafluoropropane R218 ...... Octafluoropropane or Refrigerant gas R218. Oil gas ...... Oil gas, compressed. Oxygen difluoride ...... Oxygen difluoride, compressed. Pentafluoroethane ...... Pentafluoroethane or Refrigerant gas R125. Perfluoroethyl vinyl ether ...... Perfluoro(ethyl vinyl ether). Perfluoromethyl vinyl ether ...... Perfluoro(methyl vinyl ether). Phosphorus pentafluoride ...... Phosphorus pentafluoride, compressed. Polyalkylamines, n.o.s., see Amines, etc ...... Polyalkylamines, n.o.s., see Amines, etc. Potassium bisulfite solution, see Bisulfites, inorganic, aqueous solu- Potassium bisulfite solution, see Bisulfites, inorganic, aqueous solu- tions, n.o.s. tions, n.o.s. Potassium selenate, see Selenates or Selenites ...... Potassium selenate, see Selenates or Selenites. Potassium selenite, see Selenates or Selenites ...... Potassium selenite, see Selenates or Selenites. Propane or propane mixtures ...... Propane. Rare gases mixture ...... Rare gases mixture, compressed. Rare gases and nitrogen mixture ...... Rare gases and nitrogen mixture, compressed. Rare gases and oxygen mixture ...... Rare gases and oxygen mixture, compressed. Receptacles, small, containing gas (both entries) ...... Receptacles, small, containing gas (gas cartridges) (both entries). Refrigerating machines, containing non-flammable, non-toxic, liquefied Refrigerating machines, containing non-flammable, non-toxic, liquefied gas or ammonia solutions (UN2073). gas or ammonia solution (UN2672). Silane ...... Silane, compressed. Silicon tetrafluoride ...... Silicon tetrafluoride, compressed. Sodium hydrogendifluoride ...... Sodium hydrogendifluoride, solid. Steel swarf, see Ferrous metal borings, etc ...... Steel swarf, see Ferrous metal borings, etc. Sulfur dioxide, liquefied ...... Sulfur dioxide. Sulfur trioxide, inhibited ...... Sulfur trioxide, inhibited or Sulfur trioxide, stabilized. 1,1,1,2-Tetrafluoroethane ...... 1,1,1,2-Tetrafluoroethane or Refrigerant gas R134a. Tetrafluoromethane, R14 ...... Tetrafluoromethane, compressed or Refrigerant gas R14. Toluene sulfonic acid, see Alkyl, or Aryl sulfonic acid etc ...... Toluene sulfonic acid, see Alkyl, or Aryl sulfonic acid etc. Trifluoroethane, compressed, R143 ...... 1,1,1-Trifluoroethane, compressed or Refrigerant gas, R143. Trifluoromethane ...... Trifluoromethane or Refrigerant gas, R23. Vinyl toluene, inhibited, mixed isomers ...... Vinyltoluenes, inhibited. Vinyltrichlorosilane ...... Vinyltrichlorosilane, inhibited. Xenon ...... Xenon, compressed. Zinc bisulfite solution, see Bisulfites, inorganic aqueous solutions, n.o.s Zinc bisulfite solution, see Bisulfites, aqueous solutions, n.o.s. Zinc selenate, see Selenates or Selenites ...... Zinc selenate, see Selenates or Selenites. Zinc selenite, see Selenates or Selenites ...... Zinc selenite, see Selenates or Selenites.

15–2. For the entry ‘‘Alkali metal 15–3. For the entry ‘‘Alkaline earth 15–4. For the entry ‘‘Ammonium alcoholates, self-heating, corrosive, metal alcoholates, n.o.s.’’, in Column nitrate, liquid (hot concentrated n.o.s.’’, in Column (7), special provision (7), special provision ‘‘65’’ would be solution)’’ in Column (7), special ‘‘64’’ would be added. added. provision ‘‘68,’’ would be added as the first special provision. 55386 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules

15–5. For the entry ‘‘Battery-powered special provision ‘‘57,’’ would be added 15–38. For the entry ‘‘Sulfur vehicle or Battery-powered equipment’’ as the first entry. UN1350’’, in Column (7), special in Column (10A), the ‘‘A’’ would be 15–23. For the entry ‘‘Metal catalyst, provision ‘‘30,’’ would be added as the removed. dry’’ in PG II, in Column (8C), the word first entry; and in Columns (8A) and 15–6. For the entry ‘‘Benzaldehyde’’, ‘‘None’’ would be removed and ‘‘242’’ (8B), the references ‘‘151’’ and ‘‘213’’ in Column (7), special provision ‘‘T1’’ would be added in its place. would be revised to read ‘‘None’’ in would be added. 15–24. For the entry ‘‘Metal catalyst, each column. 15–7. For the entry ‘‘Carbon dioxide dry’’ in PG III, in Column (8C), the word 15–39. For the entry ‘‘Sulfur and oxygen mixtures’’, in Column (6), ‘‘None’’ would be removed and ‘‘241’’ tetrafluoride’’, in Column (9B), the the designation ‘‘,5.1’’ would be added would be added in its place. wording ‘‘25 kg’’ would be revised to immediately following ‘‘2.2’’. 15–25. For the entry ‘‘Methylacrylic read ‘‘Forbidden’’. 15–8. For the entry ‘‘Charges, acid, inhibited’’, in Column (7), special 15–40. For the entry ‘‘Toxic liquids, propelling’’ UN0491, in Column (7), provision ‘‘45’’ would be removed and oxidizing, n.o.s.’’ inhalation hazard in special provision ‘‘122’’ would be ‘‘T47’’ added in its place. PG I, Zone A, in Column (9B), the added. 15–26. For the entry wording ‘‘2.5 L’’ would be revised to 15–9. For the entry ‘‘Corrosive ‘‘Methyoxymethyl isocyanate’’, in read ‘‘Forbidden’’. liquids, toxic, n.o.s.’’, in Packing Group Column (9B), the wording ‘‘30 L’’ would 15–41. For the entry ‘‘Trifluoroacetyl I, in Column (7), special provisions ‘‘, be revised to read ‘‘Forbidden’’. chloride’’, in Column (6), the T18,T27’’ would be added immediately 15–27. For the entry ‘‘Nitrates, designation ‘‘,8’’ would be added after following ‘‘B10’’. inorganic, aqueous solution, n.o.s’’, for ‘‘2.3’’. 15–10. For the entry ‘‘Corrosive PG II and III, in Column (7) special 15–42. For the entry ‘‘Urea nitrate dry liquids, toxic, n.o.s.’’, in PG II, in provision ‘‘58,’’ would be added as the or wetted with less than 20 percent Column (7), special provisions ‘‘, first entry. water, by mass’’ , in Column (7), special T18,T26’’ would be added immediately 15–28. For the entry ‘‘Oil gas’’, in provision ‘‘119’’ would be added. following ‘‘B3’’. Column (9B), the wording ‘‘150 kg’’ 15–43. In Column (6), the wording 15–11. For the entry ‘‘Corrosive would be revised to read ‘‘25 kg’’. ‘‘,3’’ would be added as the last entry for liquids, toxic, n.o.s.’’, in PG III, in 15–29. For the entry ‘‘Oxidizing each of the following entries: Column (7), special provision ‘‘, T8’’ liquid, n.o.s.’’ in PG II and III, in Allyl isothiocyanate, inhibited would be added. Column (7), special provision ‘‘127,’’ Bromoacetone 15–12. For the entry ‘‘Cyclohexyl would be added as the first entry. n-Butyl chloroformate isocyanate’’, in Columns (9A) and (9B), 15–30. For the entry ‘‘Pentaerythrite Cyclobutyl chloroformate the wording ‘‘5 L’’ and ‘‘60 L’’ would be tetranitrate or Pentaerythritol Epibromohydrin revised to read ‘‘Forbidden’’ in each tetranitrate, or PETN, with not less than Epichlorohydrin column. 7 percent wax by mass’’, in Column (7), Ethyl bromoacetate 15–13. For the entry ‘‘Divinyl ether, special provision ‘‘120’’ would be Ethyl chloroacetate inhibited’’, in Column (9A), the wording added. Isocyanatobenzotrifluorides ‘‘5 L’’ would be revised to read ‘‘1 L’’. 15–31. For the entry ‘‘Pentaerythrite Propylene chlorohydrin 15–14. For the entry ‘‘Ethyl tetranitrate, wetted or Pentaerythritol 16. In Appendix B to § 172.101, the isocyanate’’, in Column (9B), the tetranitrate, wetted or PETN, wetted List of Marine Pollutants would be wording ‘‘30 L’’ would be revised to with not less than 25 percent water, by amended by adding the following read ‘‘Forbidden’’. mass’’, in Column (1), the letter ‘‘D’’ materials in appropriate alphabetical 15–15. For the entry ‘‘Ethylene oxide would be removed, and in Column (7), order: and carbon dioxide mixture with more special provision ‘‘121’’ would be than 87 percent ethylene oxide’’, in added. Appendix B to § 172.101—List of Marine Column (9B), the wording ‘‘75 kg’’ 15–32. For the entry ‘‘Polyester resin pollutants. would be revised to read ‘‘25 kg’’. kit’’, in Column (7), special provision ‘‘, * * * * * 15–16. For the entry ‘‘Explosives, A25’’ would be added immediately blasting, type C’’, in Column (7), special following ‘‘40’’; and in Column (8A), the S.M.P Marine pollutant provision ‘‘123’’ would be added. wording ‘‘None’’ would be removed and 15–17. For the entry ‘‘Ferrocerium’’, ‘‘152’’ added in its place. (1) (2) in Column (7), special provision ‘‘59,’’ 15–33. For the entry ‘‘Potassium’’, in would be added as the first entry. Column (9A), the wording ‘‘1 kg’’ would [ADD:] 15–18. For the entry be revised to read ‘‘Forbidden’’. ***** ‘‘Hexafluoroacetone’’, in Column (9B), 15–34. the entry ‘‘Potassium metal Acetaldehyde. the wording ‘‘25 kg’’ would be revised alloys’’, in Column (9A), the wording ‘‘1 Alkyl (C10±C21) sulphonic acid to read ‘‘Forbidden’’. kg’’ would be revised to read ester of phenol. 15–19. For the entry ‘‘Isobutyl ‘‘Forbidden’’. Anisole. isocyanate’’, in Column (9B), the 15–35. For the entries ‘‘Propellant, Benzaldehyde. wording ‘‘60 L’’ would be revised to liquid’’, UN0495 and ‘‘Propellant, Bromobenzene. read ‘‘Forbidden’’. liquid’’, UN0497, in Column (7), special Butanedione. 15–20. For the entry ‘‘Isopropyl provisions ‘‘, 125, 126’’ would be added normal-Butyraldehyde. isocyanate’’, in Column (9B), the following ‘‘37’’. Camphor oil. wording ‘‘30 L’’ would be revised to 15–36. For the entry ‘‘Silicon Coconitrile. PP ...... Cymenes (o-;m-;p-). read ‘‘Forbidden’’. tetrafluoride’’, in Column (9B), the normal-Decaldehyde. 15–21. For the entry ‘‘Isosorbide-5- wording ‘‘25 kg’’ would be revised to normal-Decanol. mononitrate’’, in Column (7), special read ‘‘Forbidden’’. Di-normal-butyl ketone. provision ‘‘66’’ would be added. 15–37. For the entry ‘‘Sodium’’, in sym-Dichlorodiethyl ether. 15–22. For the entry ‘‘Maneb or Column (9A), the wording ‘‘1 kg’’ would Dimethyl disulphide. Maneb preparations’’, in Column (7), be revised to read ‘‘Forbidden’’. Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules 55387

S.M.P Marine pollutant Copper metal powder Special Provisions 57, 58, 59, 64, 65, 66, Esfenvalerate 68, 72, 74, 118, 119, 120, 121, 122, 123, (1) (2) Fenbutatin oxide 125, 126, and 127 would be added; in 1,3-Hexachlorobutadiene paragraph (c)(2), Special Provision A25 1,2-Dimethylhydrazine. Quizalofop would be added; in paragraph (c)(3), 1,1-Dimethylhydrazine. Quizalofop-p-ethyl Special Provision B115 would be added; Dipentene. Tetrachlorovinfos in paragraph (c)(5) Special Provision 2,4-Di-tert-butyl phenol. Tetraethyl lead N50 would be removed; and in 2,6-Di-tert-butyl phenol. Tricresyl phosphate with more than 3% paragraph (c)(7)(ii), Special Provision Diphenyl ether/biphenyl phenyl ortho isomer T47 would be added, to read as follows: ether mixtures. g. The following entries would be Diphenyl-diphenyl ether (mixtures). § 172.102 Special provisions. 2-Ethylhexaldehyde. removed: * * * * * 2-Ethylbutyraldehyde. Acetylene dibromide PP ...... Furathiocarb (150). (c) * * * Arsenates, liquid, n.o.s. (1) * * * normal-Heptyl aldehyde. Arsenates, solid, n.o.s. * * * * * 2,4-Hexadiene aldehyde. Arsenic bromide normal-Hexyl aldehyde. 15. Chemical kits and first aid kits are Hydrogen cyanide solution in alco- Arsenic chloride boxes, cases, etc., containing small amounts hol, with not more than. Arsenical pesticides liquid, toxic, of various compatible dangerous goods 45% hydrogen cyanide. flammable, n.o.s. which are used for medical, analytical, or Iron sponge, spent. Biphenyl phenyl ether and diphenyl testing purposes and for which exceptions Isobutyraldehyde. oxide, mixtures are provided in this subchapter. For Isodecaldehyde. 1-Butanethiol transportation by aircraft, any hazardous Isononanol. Carbon bisulphide materials forbidden in passenger aircraft may Isooctaldehyde. Chlorobenzylchlorides not be included in these kits. Inner Isooctanol. packagings may not exceed 250 mL for alpha-Chloropropylene liquids or 250 g for solids and must be Isotetramethylbenzene. 1-Chloropropylene Isovaleraldehyde. protected from other materials in the kit. The Lead and zinc calcines. 2-Chloropropylene total quantity of hazardous materials in any 2-Methylbutyraldehyde. Chromyl chloride one kit may not exceed either 1 L or 1 kg. Nitrobenzene. Copper arsentate The packing group assigned to the kit as a 1-Nonanal. 1,2-Dibromethene whole must be the most stringent packing 1-Nonanol. 1,2-Dibromoethane group assigned to any individual substance normal-Octaldehyde. o-Dichlorobenzene contained in the kit. Kits must be packed in 1-Octanol. p-Dichlorobenzene wooden boxes (4C1, 4C2), plywood boxes Phenylcyclohexane. Dichloroether (4D), reconstituted wood boxes (4F), Propionaldehyde. fiberboard boxes (4G) or plastic boxes (4H1, Dichloroethyl oxide 4H2); these packagings must meet the Tallow nitrile. Dimethylarsinic acid 4-Thiapentanal. requirements appropriate to the packing PP ...... Triphenylphosphate. Ethylene chloride group assigned to the kit as a whole. The 1-Undecanol. Ethylene dichloride total quantity of hazardous materials in any normal-Valeraldehyde. Ethylidene dichloride one package may not exceed either 10 L or Isopropyltoluene 10 kg. Kits which are carried on board ***** Maneb preparations with not less than vehicles for first-aid or operating purposes 60% maneb are not subject to the requirements of this Appendix B to § 172.101 [Amended] Mercuric sulphide subchapter. Mercury iodine, solution * * * * * 17. In addition, in Appendix B to Metaarsenic acid 23. * * * Quantities of not more than 500 § 172.101, the List of Marine Pollutants 3-Methyl pyridine g per package with not less than 10 percent would be amended as follows: Methylchloroform water by mass may also be classed in a. The entry ‘‘Azenphos-methyl’’ Division 4.1, provided a negative test result Methylene bromide would be revised to read ‘‘Azinphos- is obtained when tested in accordance with Methylene dibromide methyl’’. test series 6(c) of the UN Manual of Tests and b. The designation ‘‘PP’’ in column (1) Naphtha, coal tar Criteria. of the List of Marine Pollutants would Nitrates, inorganic, n.o.s. * * * * * be removed for the entry Nitrites, inorganic, n.o.s. 32. Polymeric beads and molding ‘‘Diethylbenzenes (mixed isomers)’’. Potassium dihydrogen arsenate compounds may be made from polystyrene, c. The entry ‘‘Mononitrobenzene’’ Propenyl chloride (cis-; trans-) poly(methyl methacrylate) or other polymeric would be revised to read Propylene dichloride material. ‘‘Nitrobenzene’’. Propylidene dichloride * * * * * d. The entry ‘‘1,1,2,2- Sodium metaarsenite 43. * * * Packagings should be so Tetrabromoethane’’ would be revised to Sodium orthoarsenate constructed that explosion is not possible by read ‘‘Tetrabromoethane’’. Strontium orthoarsenite reason of increased internal pressure. e. The entry ‘‘1,1,2,2- Turpentine substitute * * * * * Tetrachloroethylene’’ would be revised White arsenic 57. Maneb or Maneb preparations to read ‘‘Tetrachloroethylene’’. 18. In § 172.102, in paragraph (c)(1), stabilized against self-heating need not be f. The designation ‘‘PP’’ would be Special Provision 45 would be removed, classified in Division 4.2 when it can be demonstrated by testing that a cubic volume added in column (1) for the following Special Provisions 15 and 32 would be of 1 m3 of substance does not self-ignite and materials: revised, a sentence would be added at that the temperature at the center of the Chlorinated paraffins (C–10—C–13) the end of Special Provisions 23 and 43, sample does not exceed 200°C, when the Copper chloride (solution) a sentence would be added at the sample is maintained at a temperature of not beginning of Special Provision 102, less than 75°C±2°C for a period of 24 hours, 55388 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules in accordance with procedures set forth for 119. This substance, when in quantities of when carried in tanks. Tanks containing testing self-heating materials in the UN not more than 11.5 kg (25.3 pounds), with solidified methyacrylic acid may not be Manual of Tests and Criteria. not less than 10 percent water, by mass, also reheated during transport. 58. Aqueous solutions of Division 5.1 may be classed in Division 4.1, provided a inorganic solid nitrate substances are negative test result is obtained when tested * * * * * considered as not meeting the criteria of in accordance with test series 6(c) of the UN § 172.102 [Amended] Division 5.1 if the concentration of the Manual of Tests and Criteria. substances in solution at the minimum 120. The phlegmatized substance must be 19. In addition, in § 172.102, in temperature encountered in transport is not significantly less sensitive than PETN. paragraph (c)(1), in special provisions greater than 80% of the saturation limit. 121. This substance, when containing less 38 and 46, in the first sentence of each 59. Ferrocerium, stabilized against alcohol, water or phlegmatizer than corrosion, with a minimum iron content of specified, may not be transported unless special provision, the wording ‘‘OP6B’’ 10 percent is not subject to the requirements approved by the Associate Administrator for would be revised to read ‘‘OP6’’ each of this subchapter. Hazardous Materials Safety. place it appears. 64. The group of alkali metals includes 122. Metal packagings must be so 20. In § 172.203, paragraph (j) would lithium, sodium, potassium, rubidium, and constructed that the risk of explosion, by caesium. reason of increase in internal pressure from be removed and reserved, paragraph 65. The group of alkaline earth metals internal or external causes is prevented. (k)(3) would be amended by adding 14 includes magnesium, calcium, strontium, 123. Any explosives, blasting, type C new entries in appropriate alphabetical and barium. containing chlorates must be segregated from order to the list of proper shipping 66. Formulations of these substances explosives containing ammonium nitrate or names, and a new paragraph (m)(4) containing not less than 30 percent non- other ammonium salts. would be added, to read as follows: volatile, non-flammable phlegmatizer are not 125. Inner packagings must have taped subject to this subchapter. screw cap closures and be not more than 5 § 172.203 Additional description 68. Provided the ammonium nitrate liters capacity each. Inner packagings must requirements. be surrounded with non-combustible remains in solution under all conditions of * * * * * transport, aqueous solutions of ammonium absorbent cushioning materials. The amount nitrate, with not more than 0.2% combustible of absorbent cushioning material must be (k) * * * material, in a concentration not exceeding sufficient to absorb the liquid contents. Metal (3) * * * 80% are not subject to this subchapter. receptacles must be cushioned from each Compressed gas, toxic, corrosive, n.o.s. * * * * * other. Net mass of propellant is limited to 30 Compressed gas, toxic, flammable, corrosive, kg (66 pounds) per package when outer 72. This entry may only be used for n.o.s. packagings are boxes. samples of chemicals taken for analysis in Compressed gas, toxic, oxidizing, corrosive, 126. When intermediate packagings are connection with the implementation of the n.o.s. drums, they must be surrounded with non- Convention on the Prohibition of the combustible cushioning material in a Compressed gas, toxic, oxidizing, n.o.s. Development, Production, Stockpiling and quantity sufficient to absorb the liquid * * * * * Use of Chemical Weapons and on their contents. A composite packaging consisting Destruction. The transport of substances Gas, refrigerated liquid, flammable, n.o.s. of a plastic receptacle in a metal drum may under this entry must be in accordance with be used instead of the inner and intermediate * * * * * the chain of custody and security procedures packagings. The net volume of propellant in Gas, refrigerated liquid, oxidizing, n.o.s. specified by the Organization for the each package may not exceed 120 L (31.7 Prohibition of Chemical Weapons. The * * * * * gallons). Hydrocarbon gases, compressed, n.o.s. chemical sample may only be transported 127. This entry does not apply to mixtures provided prior approval has been granted by Hydrocarbon gases mixtures, compressed, containing more than 70 percent ammonium n.o.s. the Associate Administrator for Hazardous nitrate and more than 0.4 percent Hydrocarbon gases, liquefied, n.o.s. Materials Safety or the Director General of combustible material (calculated as carbon), the Organization for the Prohibition of excluding water. Hydrocarbon gases mixtures, liquefied, n.o.s. Chemical Weapons and provided the sample (2) * * * * * * * * complies with the following requirements: Liquefied gas, toxic, corrosive, n.o.s. a. The sample must be packaged in * * * * * accordance with the International Civil A25. A polyester resin kit containing a net Liquefied gas, toxic, flammable, corrosive, Aviation Organization’s Technical quantity of organic peroxide not to exceed n.o.s. Instructions for the Safe Transport of 125 ml or 500 g per kit, with not more than Liquefied gas, toxic, oxidizing, corrosive, Dangerous Goods by Air; and 30 ml or 100 g per inner packaging, and a n.o.s. b. During transport, the sample must be flammable liquid not to exceed 900 g per kit Liquefied gas, toxic, oxidizing, n.o.s. accompanied by a copy of the document of may be packaged in non-specification packaging. * * * * * approval for transport, showing the quantity (m) * * * limitations and the packing requirements. * * * * * (4) The provisions of paragraphs (m)(1) 74. During transport, this material must be (3) * * * protected from direct sunshine and stored or through (m)(3) of this section do not apply * * * * * to a material if the toxicity of the material is kept in a cool and well-ventilated place, B115. Rail cars, highway trailers, roll-on/ based solely on the corrosive destruction of away from all sources of heat. roll-off bins, or other non-specification bulk * * * * * packagings are authorized. Packagings must tissue rather than systemic poisoning. 102. The ends of the detonating cord must be sift-proof, prevent liquid water from * * * * * be tied fast so that the explosive cannot reaching the hazardous material, and be escape. * * * provided with sufficient venting to preclude § 172.203 [Amended] dangerous accumulation of flammable, * * * * * 21. In addition, in § 172.203, in 118. This substance may not be transported corrosive, or toxic gaseous emissions such as methane, hydrogen, and ammonia. The paragraph (m)(3), in the first sentence, under the provisions of Division 4.1 unless the wording ‘‘or ‘Toxic-Inhalation specifically approved by the Associate material must be loaded dry. Administrator for Hazardous Materials * * * * * Hazard’ ’’ would be added immediately Safety. The method of packing and the (7) * * * following ‘‘ ‘Poison-Inhalation Hazard’ ’’; assignment of the packing group must also be (ii) * * * and in the second sentence the wording approved by the Associate Administrator for T47. Temperature must be maintained ‘‘ ‘Poison’ ’’ would be revised to read Hazardous Materials Safety. between 18°C (64.4°F) and 40°C (104°F) ‘‘ ‘Poison’ or ‘Toxic’ ’’. Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules 55389

PART 173ÐSHIPPERSÐGENERAL (b) The general requirements for the packaging materials, nor leakage, REQUIREMENTS FOR SHIPMENTS packaging of explosives are as follows: causes the explosive to become unsafe AND PACKAGINGS (1) Nails, staples, and other closure in transportation, or the hazard division devices, made of metal, having no or compatibility group to change. 22. The authority citation for part 173 protective covering may not penetrate to (10) An explosive article containing would continue to read as follows: the inside of the outer packaging unless an electrical means of initiation that is Authority: 49 U.S.C. 5101–5127; 49 CFR the inner packaging adequately protects sensitive to external electromagnetic 1.53. the explosive against contact with the radiation, must have its means of 23. In § 173.3, paragraph (c)(3) would metal. initiation effectively protected from (2) The closure device of containers be revised and a new paragraph (c)(7) electromagnetic radiation sources (for for liquid explosives must provide would be added, to read as follows: example, radar or radio transmitters) double protection against leakage, such through either design of the packaging § 173.3 Packaging and exceptions. as a screw cap secured in place with or of the article, or both. * * * * * tape. (11) Plastic packagings may not be (c) * * * (3) Inner packagings, fittings, and able to generate or accumulate sufficient (3) Each salvage packaging must be cushioning materials, and the placing of static electricity to cause the packaged marked with the proper shipping name explosive substances or articles in explosive substances or articles to of the hazardous material inside the packages, must be such that the initiate, ignite or inadvertently function. packaging and the name and address of explosive substance is prevented from Metal packagings must be compatible the consignee. In addition, the becoming loose in the outer packaging with the explosive substance they packaging must be marked ‘‘SALVAGE’’ during transportation. Metallic contain. or ‘‘SALVAGE DRUM’’. components of articles must be (12) Explosive substances may not be prevented from making contact with * * * * * packed in inner or outer packagings metal packagings. Articles containing (7) A salvage packaging marked ‘‘T’’ where the differences in internal and explosive substances not enclosed in an in accordance with applicable external pressures, due to thermal or outer casing must be separated from provisions in the UN Recommendations other effects, could cause an explosion each other in order to prevent friction may be used. or rupture of the package. and impact. Padding, trays, partitioning (13) Packagings for water soluble § 173.3 [Amended] in the inner or outer packaging, molded substances must be water resistant. 24. In addition, in § 173.3, in plastics or receptacles may be used for Packagings for desensitized or paragraph (c)(1), at the beginning of the this purpose. phlegmatized substances must be closed paragraph, the wording ‘‘The drum’’ (4) When the packaging includes to prevent changes in concentration would be revised to read ‘‘Except as water that could freeze during during transport. When containing less provided in paragraph (c)(7) of this transportation, a sufficient amount of alcohol, water, or phlegmatizer than section, the drum’’. anti-freeze, such as denatured ethyl specified in its proper shipping 25. In § 173.21, the last sentence in alcohol, must be added to the water to description, the substance is a paragraph (f) introductory text would be prevent freezing. If the anti-freeze ‘‘forbidden’’ material. revised to read as follows: creates a fire hazard, it may not be used. 28. Section 173.62 would be revised When a percentage of water in the to read as follows: § 173.21 Forbidden materials and substance is specified, the combined packages. weight of water and anti-freeze may be § 173.62 Specific packaging requirements for explosives. * * * * * substituted. (f) * * * The SADT may be (5) If an article is fitted with its own (a) Except as provided in paragraph determined by any of the test methods means of ignition or initiation, it must (e) of this section, when the § 172.101 described in Part II of the UN Manual be effectively protected from accidental Table specifies that an explosive must of Tests and Criteria. actuation during normal conditions of be packaged in accordance with this section, only non-bulk packagings * * * * * transportation. (6) The entry of explosive substances which conform to the provisions of § 173.32c [Amended] into the recesses of double-seamed paragraphs (b), (c) and (d) of this section 26. In § 173.32c, in paragraph (j), the metal packagings must be prevented. and the applicable requirements in wording ‘‘5,000 liters (1,900 gallons)’’ (7) The closure device of a metal §§ 173.60 and 173.61 may be used would be revised to read ‘‘7500 L’’. drum must include a suitable gasket; if unless otherwise approved by the 27. Section 173.60 would be revised the closure device includes metal-to- Associate Administrator. Intermediate to read as follows: metal screw-threads, the ingress of bulk packagings may be used for explosive substances into the threading explosives assigned to Packing § 173.60 General packaging requirements must be prevented. Instruction 117 in paragraph (b) of this for explosives. (8) Whenever loose explosive section. Intermediate bulk packagings (a) Unless otherwise provided in this substances or the explosive substance of must conform with the requirements of subpart and in § 173.7(a), packaging an uncased or partly cased article may this subchapter. used for Class 1 (explosives) materials come into contact with the inner surface (b) Explosives Table. The Explosives must meet Packing Group II of metal packagings (1A2, 1B2, 4A, 4B Table specifies the Packing Instructions requirements. Each packaging used for and metal receptacles), the metal assigned to each explosive. Explosives an explosive must be capable of meeting packaging should be provided with an are identified in the first column in the test requirements of subpart M of inner liner or coating. numerical sequence by their part 178 of this subchapter, at the (9) Packagings must be made of identification number (ID #), which is specified level of performance, and the materials compatible with, and listed in column 4 of the § 172.101 applicable general packaging impermeable to, the explosives Table, of this subchapter. The second requirements of paragraph (b) of this contained in the package, so that neither column of the Explosives Table section. interaction between the explosives and specifies the Packing Instruction (PI) 55390 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules which must be used for packaging the EXPLOSIVES TABLEÐContinued EXPLOSIVES TABLEÐContinued explosive. The Explosives Packing Method Table in paragraph (c) of this ID No. PI ID No. PI section defines the methods of packaging. The Packing Instructions are UN0107 ...... 141 UN0242 ...... 130 identified using a 3 digit designation. UN0110 ...... 141 UN0243 ...... 130 UN0113 ...... 110(a) or 110(b) UN0244 ...... 130 The Packing Instructions prefixed by the UN0114 ...... 110(a) or 110(b) UN0245 ...... 130 letters ‘‘US’’ are those particular to the UN0118 ...... 112 UN0246 ...... 130 United States and not found in UN0121 ...... 142 UN0247 ...... 101 applicable international regulations. UN0124 ...... US1 UN0248 ...... 144 UN0129 ...... 110(a) or 110(b) UN0249 ...... 144 EXPLOSIVES TABLE UN0130 ...... 110(a) or 110(b) UN0250 ...... 101 UN0131 ...... 142 UN0254 ...... 130 ID No. PI UN0132 ...... 114(b) UN0255 ...... 131 UN0133 ...... 112(a) UN0257 ...... 141 UN0004 ...... 112 UN0135 ...... 110(a) or 110(b) UN0266 ...... 112 UN0005 ...... 130 UN0136 ...... 130 UN0267 ...... 131 UN0006 ...... 130 UN0137 ...... 130 UN0268 ...... 133 UN0007 ...... 130 UN0138 ...... 130 UN0271 ...... 143 UN0009 ...... 130 UN0143 ...... 115 UN0272 ...... 143 UN0010 ...... 130 UN0144 ...... 115 UN0275 ...... 134 UN0012 ...... 130 UN0146 ...... 112 UN0276 ...... 134 UN0014 ...... 130 UN0147 ...... 112(b) UN0277 ...... 134 UN0015 ...... 130 UN0150 ...... 112(a) or 112(b) UN0278 ...... 134 UN0016 ...... 130 UN0151 ...... 112 UN0279 ...... 130 UN0018 ...... 130 UN0153 ...... 112(b) or 112(c) UN0280 ...... 130 UN0019 ...... 130 UN0154 ...... 112 UN0281 ...... 130 UN0020 ...... 101 UN0155 ...... 112(b) or 112(c) UN0282 ...... 112 UN0021 ...... 101 UN0159 ...... 111 UN0283 ...... 132 UN0027 ...... 113 UN0160 ...... 114(b) UN0284 ...... 141 UN0028 ...... 113 UN0161 ...... 114(b) UN0285 ...... 141 UN0029 ...... 131 UN0167 ...... 130 UN0286 ...... 130 UN0030 ...... 131 UN0168 ...... 130 UN0287 ...... 130 UN0033 ...... 130 UN0169 ...... 130 UN0288 ...... 138 UN0034 ...... 130 UN0171 ...... 130 UN0289 ...... 139 UN0035 ...... 130 UN0173 ...... 134 UN0290 ...... 139 UN0037 ...... 130 UN0174 ...... 134 UN0291 ...... 130 UN0038 ...... 130 UN0180 ...... 130 UN0292 ...... 141 UN0039 ...... 130 UN0181 ...... 130 UN0293 ...... 141 UN0042 ...... 132 UN0182 ...... 130 UN0294 ...... 130 UN0043 ...... 133 UN0183 ...... 130 UN0295 ...... 130 UN0044 ...... 133 UN0186 ...... 130 UN0296 ...... 134 UN0048 ...... 130 UN0190 ...... 101 UN0297 ...... 130 UN0049 ...... 135 UN0191 ...... 135 UN0299 ...... 130 UN0050 ...... 135 UN0192 ...... 135 UN0300 ...... 130 UN0054 ...... 135 UN0193 ...... 135 UN0301 ...... 130 UN0055 ...... 136 UN0194 ...... 135 UN0303 ...... 130 UN0056 ...... 130 UN0195 ...... 135 UN0305 ...... 113 UN0059 ...... 137 UN0196 ...... 135 UN0306 ...... 133 UN0060 ...... 132 UN0197 ...... 135 UN0312 ...... 135 UN0065 ...... 139 UN0204 ...... 134 UN0313 ...... 135 UN0066 ...... 140 UN0207 ...... 112(b) or 112(c) UN0314 ...... 142 UN0070 ...... 134 UN0208 ...... 112(b) or 112(c) UN0315 ...... 142 UN0072 ...... 112(a) UN0209 ...... 112 UN0316 ...... 141 UN0073 ...... 133 UN0212 ...... 133 UN0317 ...... 141 UN0074 ...... 110(a) or 110(b) UN0213 ...... 112(b) or 112(c) UN0318 ...... 141 UN0075 ...... 115 UN0214 ...... 112 UN0319 ...... 133 UN0076 ...... 112 UN0215 ...... 112 UN0320 ...... 133 UN0077 ...... 114 UN0216 ...... 112(b) or 112(c) UN0321 ...... 130 UN0078 ...... 112 UN0217 ...... 112(b) or 112(c) UN0322 ...... 101 UN0079 ...... 112(b) or 112(c) UN0218 ...... 112(b) or 112(c) UN0323 ...... 134 UN0081 ...... 116 UN0219 ...... 112 UN0324 ...... 130 UN0082 ...... 116 or 117 UN0220 ...... 112 UN0325 ...... 142 UN0083 ...... 116 UN0221 ...... 130 UN0326 ...... 130 UN0084 ...... 116 UN0222 ...... 112(b) or 112(c) UN0327 ...... 130 UN0092 ...... 135 UN0224 ...... 110(a) or 110(b) UN0328 ...... 130 UN0093 ...... 135 UN0225 ...... 133 UN0329 ...... 130 UN0094 ...... 113 UN0226 ...... 112(a) UN0330 ...... 130 UN0099 ...... 134 UN0234 ...... 114 UN0331 ...... 116 or 117 UN0101 ...... 140 UN0235 ...... 114 UN0332 ...... 116 or 117 UN0102 ...... 139 UN0236 ...... 114 UN0333 ...... 135 UN0103 ...... 140 UN0237 ...... 138 UN0334 ...... 135 UN0104 ...... 139 UN0238 ...... 130 UN0335 ...... 135 UN0105 ...... 140 UN0240 ...... 130 UN0336 ...... 135 UN0106 ...... 141 UN0241 ...... 116 or 117 UN0337 ...... 135 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules 55391

EXPLOSIVES TABLEÐContinued EXPLOSIVES TABLEÐContinued EXPLOSIVES TABLEÐContinued

ID No. PI ID No. PI ID No. PI

UN0338 ...... 130 UN0408 ...... 141 UN0481 ...... 101 UN0339 ...... 130 UN0409 ...... 141 UN0482 ...... 101 UN0340 ...... 112(a) or 112(b) UN0410 ...... 141 UN0483 ...... 112(b) or 112(c) UN0341 ...... 112(b) UN0411 ...... 112(b) or 112(c) UN0484 ...... 112(b) or 112(c) UN0342 ...... 114(a) UN0412 ...... 130 UN0486 ...... 101 UN0343 ...... 111 UN0413 ...... 130 UN0487 ...... 135 UN0344 ...... 130 UN0414 ...... 130 UN0488 ...... 130 UN0345 ...... 130 UN0415 ...... 143 UN0489 ...... 112(b) or 112(c) UN0346 ...... 130 UN0417 ...... 130 UN0490 ...... 112(b) or 112(c) UN0347 ...... 130 UN0418 ...... 135 UN0491 ...... 143 UN0348 ...... 130 UN0419 ...... 135 UN0492 ...... 135 UN0349 ...... 101 UN0420 ...... 135 UN0493 ...... 135 UN0350 ...... 101 UN0421 ...... 135 UN0494 ...... US1 UN0351 ...... 101 UN0424 ...... 130 UN0495 ...... 115 UN0352 ...... 101 UN0425 ...... 130 UN0496 ...... 112(b) or 112(c) UN0353 ...... 101 UN0426 ...... 130 UN0354 ...... 101 UN0427 ...... 130 UN0497 ...... 115 UN0355 ...... 101 UN0428 ...... 135 UN0498 ...... 114(b) UN0356 ...... 101 UN0429 ...... 135 UN0499 ...... 114(b) UN0357 ...... 101 UN0430 ...... 135 UN0500 ...... 131 UN0358 ...... 101 UN0431 ...... 135 NA0124 ...... US1 UN0359 ...... 101 UN0432 ...... 135 NA0276 ...... 134 UN0360 ...... 131 UN0433 ...... 111 NA0323 ...... 134 UN0361 ...... 131 UN0434 ...... 130 NA0337 ...... 135 UN0362 ...... 130 UN0435 ...... 130 NA0349 ...... 133 UN0363 ...... 130 UN0436 ...... 130 NA0494 ...... US1 UN0364 ...... 133 UN0437 ...... 130 UN0365 ...... 133 UN0438 ...... 130 (c) Explosives Packing Instruction UN0366 ...... 133 UN0439 ...... 137 Table. Explosives must be packaged in UN0367 ...... 141 UN0440 ...... 137 UN0368 ...... 141 UN0441 ...... 137 accordance with the following table: UN0369 ...... 130 UN0442 ...... 137 (1) The first column lists, in UN0370 ...... 130 UN0443 ...... 137 alphanumeric sequence, the packing UN0371 ...... 130 UN0444 ...... 137 methods prescribed for explosives in the UN0372 ...... 141 UN0445 ...... 137 Explosives Table of paragraph (b) of this UN0373 ...... 135 UN0446 ...... 136 section. UN0374 ...... 134 UN0447 ...... 136 UN0375 ...... 134 UN0448 ...... 114(b) (2) The second column specifies the UN0376 ...... 133 UN0449 ...... 101 inner packagings that are required. If UN0377 ...... 133 UN0450 ...... 101 inner packagings are not required, a UN0378 ...... 133 UN0451 ...... 130 notation of ‘‘Not necessary’’ appears in UN0379 ...... 136 UN0452 ...... 141 the column. The term ‘‘Not necessary’’ UN0380 ...... 101 UN0453 ...... 130 means that a suitable inner packaging UN0381 ...... 134 UN0454 ...... 142 UN0382 ...... 101 UN0455 ...... 131 may be used but is not required. UN0383 ...... 101 UN0456 ...... 131 (3) The third column specifies the UN0384 ...... 101 UN0457 ...... 130 intermediate packagings that are UN0385 ...... 112(b) or 112(c) UN0458 ...... 130 required. If intermediate packagings are UN0386 ...... 112(b) or 112(c) UN0459 ...... 130 not required, a notation of ‘‘Not UN0387 ...... 112(b) or 112(c) UN0460 ...... 130 necessary’’ appears in the column. The UN0388 ...... 112(b) or 112(c) UN0461 ...... 101 UN0389 ...... 112(b) or 112(c) UN0462 ...... 101 term ‘‘Not necessary’’ means that a UN0390 ...... 112(b) or 112(c) UN0463 ...... 101 suitable intermediate packaging may be UN0391 ...... 112(a) UN0464 ...... 101 used but is not required. UN0392 ...... 112(b) or 112(c) UN0465 ...... 101 (4) The fourth column specifies the UN0393 ...... 112(b) UN0466 ...... 101 outer packagings which are required. If UN0394 ...... 112(a) UN0467 ...... 101 inner packagings and/or intermediate UN0395 ...... 101 UN0468 ...... 101 UN0396 ...... 101 UN0469 ...... 101 packagings are specified in the second UN0397 ...... 101 UN0470 ...... 101 and third columns, then the packaging UN0398 ...... 101 UN0471 ...... 101 specified in the fourth column must be UN0399 ...... 101 UN0472 ...... 101 used as the outer packaging of a UN0400 ...... 101 UN0473 ...... 101 combination packaging; otherwise it UN0401 ...... 112 UN0474 ...... 101 may be used as a single packaging. UN0402 ...... 112(b) or 112(c) UN0475 ...... 101 UN0403 ...... 135 UN0476 ...... 101 (5) Packing Instruction 101 may be UN0404 ...... 135 UN0477 ...... 101 used for any explosive substance or UN0405 ...... 135 UN0478 ...... 101 article if an equivalent level of safety is UN0406 ...... 114(b) UN0479 ...... 101 shown to be maintained subject to the UN0407 ...... 114(b) UN0480 ...... 101 approval of the Associate Administrator. 55392 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules

TABLE OF PACKING METHODS

Packing instruction Inner packagings Intermediate packagings Outer packagings

101 PARTICULAR PACKING REQUIRE- This Packing Instruction may be used as an alternative to a specifically assigned packing method with the approval of the MENTS OR EXCEPTIONS: Associate Administrator for Hazardous Materials Safety prior to transportation. When this packing instruction is used, the following must be marked on the shipping documents: ``Packaging approved by the competent authority of the United States of America (USA)''. 1. Samples of new or existing ex- plosive substances or articles may be transported as directed by the Associate Administrator for Hazardous Materials Safety for purposes including: testing, clas- sification, research and develop- ment, quality control, or as a commercial sample. Explosive samples which are wetted or de- sensitized must be limited to 25 kg. Explosive samples which are not wetted or desensitized must be limited to 10 kg in small pack- ages as specified by the Associ- ate Administrator for Hazardous Materials Safety. 110(a) PARTICULAR PACKING REQUIRE- Bags Bags Drums MENTS OR EXCEPTIONS: plastics plastics steel, removable (1A2). 1. The Intermediate packagings textile, plastic coated or lined textile, plastic coated or lined plastics, removable head (1H2) must be filled with water satu- rubber rubber rated material such as an anti- textile, rubberized textile, rubberized freeze solution or wetted cushion- textile Receptacles ing. plastics 2. Outer packagings must be filled metal with water saturated material such as an anti-freeze solution or wetted cushioning. Outer packagings must be constructed and sealed to prevent evapo- ration of the wetting solution, ex- cept when 0224 is being carried dry. 110(b) PARTICULAR PACKING REQUIRE- Receptacles Dividing partitions Boxes MENTS OR EXCEPTIONS: metal metal natural wood, sift-proof wall (4C2) For UN 0074, 0113, 0114, 0129, wood wood plywood (4D). 0130, 0135 and 0224, the follow- rubber, conductive plastics reconstituted wood (4F) ing conditions must be satisfied: plastics, conductive fibreboard a. inner packagings must not Bags contain more than 50 g of rubber, conductive explosive substance (quan- plastics, conductive tity corresponding to dry sub- stance); b. each inner packaging must be separated from other inner packagings by dividing partitions; and c. the outer packaging must not be partitioned with more than 25 compartments. 111 PARTICULAR PACKING REQUIRE- Bags Not necessary Boxes MENTS OR EXCEPTIONS: paper, waterproofed steel (4A). For UN 0159, inner packagings are plastics aluminium (4B). not required when metal (1A2 or textile, rubberized natural wood, ordinary (4C1) 1B2) or plastics (1H2) drums are Sheets natural wood, sift proof (4C2) used as outer packagings. plastics plywood (4D) textile, rubberized reconstituted wood (4F) fibreboard (4G) plastics, expanded (4H1) plastics, solid (4H2) Drums steel, removable head (1A2) aluminium, removable head (1B2) plywood (1D) fibreboard (1G) plastics, removable head (1H2) 112(a) This packing instruction applies to wetted solids. Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules 55393

TABLE OF PACKING METHODSÐContinued

Packing instruction Inner packagings Intermediate packagings Outer packagings

PARTICULAR PACKING REQUIRE- Bags Bags Boxes MENTS OR EXCEPTIONS: paper, multiwall, water resistant plastics steel (4A) 1. For UN Nos. 0004, 0076, 0078, plastics textile, plastic coated or lined aluminium (4B) 0154, 0219 and 0394, textile Receptacles natural wood, ordinary (4C1) packagings must be lead free. textile, rubberized metal natural wood, sift proof (4C2) 2. Intermediate packagings are not woven plastics plastics plywood (4D) required if leakproof drums are Receptacles reconstituted wood (4F) used as the outer packaging. metal fibreboard (4G) 3. For UN 0072 and UN 0226, inter- plastics plastics, expanded (4H1) mediate packagings are not re- plastics, solid (4H2) quired. Drums steel, removable head (1A2) aluminium, removable head (1B2) fibre (1G) plastics, removable head (1H2) 112(b) This packing instruction applies to dry solids other than powders. PARTICULAR PACKING REQUIRE- Bags Bags (for UN 0150 only) Bags MENTS OR EXCEPTIONS: paper, Kraft plastics woven plastics, sift-proof (5H2/3) 1. For UN 0004, 0076, 0078, 0154, paper, multiwall, textile, plastic coated or lined plastics, film (5H4) 0216, 0219 and 0386, water resistant textile, sift-proof (5L2) packagings must be lead free. plastics textile, water resistant (5L3) 2. For UN 0209, bags, sift-proof textile paper, multiwall, water resistant (5H2) are recommended for flake textile, rubberized (5M2) or prilled TNT in the dry state and woven plastics Boxes a maximum net mass of 30 kg. steel (4A) 3. For UN 0222 and UN 0223, inner aluminium (4B) packagings are not required. natural wood, ordinary (4C1) natural wood, sift proof (4C2) plywood (4D) reconstituted wood (4F) fibre board (4G) plastics, expanded (4H1) plastics, solid (4H2) Drums steel, removable head (1A2) aluminium, removable head (1B2) fibre (1G) plastics, removable head (1H2) 112(c) This packing instruction applies to solid dry powders PARTICULAR PACKING REQUIRE- Bags Bags Boxes MENTS OR EXCEPTIONS: paper, multiwall, water resistant paper, multiwall water resistant with steel (4A) 1. For UN 0004, 0076, 0078, 0154, plastics inner lining natural wood, ordinary (4C1) 0216, 0219 and 0386, woven plastics plastics natural wood, sift proof (4C2) packagings must be lead free. Receptacles Receptacles plywood (4D) 2. For UN 0209, bags, sift-proof fibreboard metal reconstituted wood (4F) (5H2) are recommended for flake metal plastics fibreboard (4G) or prilled TNT in the dry state. plastics plastics, solid (4H2) Bags must not exceed a maxi- wood Drums mum net mass of 30 kg. steel, removable head (1A2) 3. Inner packagings are not re- aluminium, removable head (1B2) quired if drums are used as the fibre (1G). outer packaging. 4. At least one of the packagings must be sift-proof. 113 PARTICULAR PACKING REQUIRE- Bags Not necessary Boxes MENTS OR EXCEPTIONS: paper steel (4A) 1. For UN 0077, 0234, 0235 and plastics natural wood, ordinary (4C1) 236, packagings must be lead textile, rubberized natural wood, sift-proof walls (4C2) free Receptacles plywood (4D) 2. For UN 0342, inner packagings fibreboard reconstituted wood (4F) are not required when metal (1A2 metal fibreboard (4G) or 1B2) or plastics (1H2) drums plastics plastics, solid (4H2) are used as outer packagings wood Drums 3. Intermediate packagings are not Sheets steel, removable head (1A2) required if leakproof removable paper, kraft aluminium, removable head (1B2) head drums are used as the paper, waxed fibre (1G) outer packaging. 114(a) This packing instruction applies to wetted solids. 55394 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules

TABLE OF PACKING METHODSÐContinued

Packing instruction Inner packagings Intermediate packagings Outer packagings

PARTICULAR PACKING REQUIRE- Bags Bags Boxes MENTS OR EXCEPTIONS: plastics plastics steel (4A) 1. For UN 0077, 0234, 0235 and textile textile, plastic coated or lined natural wood, ordinary (4C1) 0236, packagings must be lead woven plastics Receptacles natural wood, sift proof walls (4C2) free Receptacles metal plywood (4D) 2. For UN 0342, inner packagings metal plastics reconstituted wood (4F) are not required when metal (1A2 plastics fibreboard (4G) or 1B2) or plastics (1H2) drums plastics, solid (4H2) are used as outer packagings Drums 3. Intermediate packagings are not steel, removable head (1A2) required if leakproof removable aluminium, removable head (1B2) head drums are used as the plywood (1D) outer packaging. fibre (1G) plastics, removable head (1H2) 114(b) This packaging instruction applies to dry solids PARTICULAR PACKING REQUIRE- Bags Not necessary Boxes MENTS OR EXCEPTIONS: paper, kraft natural wood, ordinary (4C1) 1. For UN 0077, 0132, 0234, 0235 plastics natural wood, sift proof walls (4C2) and 0236, packagings must be textile, sift-proof plywood (4D) lead free. woven plastics, sift-proof reconstituted wood (4F) 2. For UN 0160 and UN 0161, Receptables fibreboard (4G) when metal drums (1A2 or 1B2) fibreboard Drums are used as the outer packaging, metal steel, removable head (1A2) metal packagings must be so paper aluminium, removable head (1B2) constructed that the risk of explo- plastics plywood (1D) sion, by reason of increase inter- woven plastics, sift-proof fibre (1G) nal pressure from internal or plastics, removable head (1H2) extenernal causes is prevented. . For UN 0160 and UN 0161, inner packagings are not required if drums are used as the outer packaging. 115 PARTICULAR PACKING REQUIRE- Receptacles Bags Boxes MENTS OR EXCEPTIONS: metal plastics in metal receptacles natural wood, ordinary (4C1) 1. For liquid explosives, inner plastics Drums natural wood, sift proof walls (4C2) packagings must be surrounded metal plywood (4D) with non-combustible absorbent reconstituted wood (4F) cushioning material in sufficient fibreboard (4G) quantity to absorb the entire liq- Drums uid content. Metal receptacles steel, removable head (1A2) should be cushioned from each aluminium, removable head (1B2) other. The net mass of explosive plywood (1D) per package may not exceed 30 fibre (1G) kg when boxes are used as outer Specification MC 200 containers may packaging. The net volume of ex- be used for transport by motor vehi- plosive in each package other cle. than boxes must not exceed 120 litres. 2. For UN 0075, 0143, 0495 and 0497 when boxes are used as the outer packaging, inner packagings must have taped screw cap closures and be not more than 5 litres capacity each. A composite packaging consist- ing of a plastic receptacle in a metal drum (6HA1) may be used in lieu of combination packagings. Liquid substances must not freeze at temperatures above ¥15°C (+5°F). 3. For UN 0144, intermediate packagings are not necessary. Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules 55395

TABLE OF PACKING METHODSÐContinued

Packing instruction Inner packagings Intermediate packagings Outer packagings

116 PARTICULAR PACKING REQUIRE- Bags Not necessary Bags MENTS OR EXCEPTIONS: paper, water and oil resistant woven plastics (5H1/2/3). 1. For UN 0082, 0241, 0331 and plastics paper, multiwall, water resistant 0332, inner packagings are not textile, plastic coated or lined (5M2) necessary if leakproof removable woven plasics, sift-proof plastics, film (5H4) head drums are used as the Receptacles textile, sift-proof (5L2) outer packaging. fibreboard, water resistant textile, water resistant (5L3) 2. For UN 0082, 0241, 0331 and metal Boxes 0332, inner packagings are not plastics steel (4A) required when the explosive is wood, sift-proof aluminium (4B) contained in a material imper- Sheets wood, natural, ordinary (4C1) vious to liquid. paper, water resistant natural wood, sift proof walls (4C2) 3. For UN 0081, inner packagings paper, waxed plywood (4D) are not required when contained plastics reconstituted wood (4F) in rigid plastic which is imper- fibreboard (4G) vious to nitric esters. plastics, solid (4H2) 4. For UN 0331, inner packagings Drums are not required when bags steel, removable head (1A2) (5H2), (5H3) or (5H4) are used aluminium, removable head (1B2) as outer packagings. fibre (1G) 5. Bags (5H2 or 5H3) must be used plastics, removable head (1H2) only for UN 0082, 0241, 0331 Jerricans and 0332. steel, removable head (3A2) 6. For UN 0081, bags must not be plastics, removable head (3H2) used as outer packagings. 117 PARTICULAR PACKING REQUIRE- Not necessary Not necessary IBCs MENTS OR EXCEPTIONS: metal (11A), (11B), (11N), (21A), 1. This packing instruction may only (21B), (21N), (31A), (31B), (31N) be used for explosives of 0082 flexible (13H2), (13H3), (13H4), when they are mixtures of ammo- (13L2), (13L3), (13L4), (13M2) nium nitrate or other inorganic ni- rigid plastics (11H1), (11H2), (21H1), trates with other combustible sub- (21H2), (31H1), (31H2) stances which are not explosive composite (11HZ1), (11HZ2), ingredients. Such explosives (21HZ1), (21HZ2), (31HZ1), must not contain nitroglycerin, (31HZ2) similar liquid organic nitrates, liq- uid or solid nitrocarbons, or chlor- ates. 2. This packing instruction may only be used for explosives of UN 0241 which consist of water as an essential ingredient and high proportions of ammonium nitrate or other oxidizers, some or all of which are in solution. The other constituents may include hydro- carbons or aluminium powder, but must not include nitro-deriva- tives such as trinitrotoluene. 3. Metal IBCs must not be used for UN 0082 and 0241. 4. Flexible IBCs may only be used for solids. 55396 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules

TABLE OF PACKING METHODSÐContinued

Packing instruction Inner packagings Intermediate packagings Outer packagings

130 PARTICULAR PACKING REQUIRE- Not necessary Not necessary Boxes MENTS OR EXCEPTIONS: steel (4A) 1. The following applies to UN aluminium (4B) 0006, 0009, 0010, 0015, 0016, wood natural, ordinary (4C1) 0018, 0019, 0034, 0035, 0038, natural wood, sift proof walls (4C2) 0039, 0048, 0056, 0137, 0138, plywood (4D) 0168, 0169, 0171, 0181, 0182, reconstituted wood (4F) 0183, 0186, 0221, 0238, 0243, fibreboard (4G) 0244, 0245, 0246, 0254, 0280, plastics, expanded (4H1) 0281, 0286, 0287, 0297, 0299, plastics, solid (4H2) 0300, 0301, 0303, 0321, 0328, Drums 0329, 0344, 0345 0346, 0347, steel, removable head (1A2) 0362, 0363, 0370, 0412, 0424, aluminium, removable head (1B2) 0425, 0434, 0435, 0436, 0437, fibre (1G) 0438, 0451, 0459 and 0488. plastics, removable head (1H2) Large and robust explosives arti- cles, normally intended for mili- tary use, without their means of initiation or with their means of initiation containing at least two effective protective features, may be carried unpackaged. When such articles have propelling charges or are self-propelled, their ignition systems must be protected against stimuli encoun- tered during normal conditions of transport. A negative result in Test Series 4 on an unpackaged article indicates that the article can be considered for transport unpackaged. Such unpackaged articles may be fixed to cradles or contained in crates or other suit- able handling devices. 131 PARTICULAR PACKING REQUIRE- Bags Not necessary Boxes MENTS OR EXCEPTIONS: paper steel (4A) 1. For UN 0029, 0267 and 0455, plastics aluminium (4B) bags and reels may not be used Receptacles wood, natural, ordinary (4C1) as inner packagings. fibreboard natural wood, sift proof walls (4C2) 2. For UN 0030, 0255 and 0456, metal plywood (4D) inner packagings are not required plastics reconstituted wood (4F) when detonators are packed in wood fibreboard (4G) pasteboard tubes, or when their Reels Drums leg wires are wound on spools steel, removable head (1A2) with the caps either placed inside aluminium, removable head (1B2) the spool or securely taped to the fibre (1G) wire on the spool, so as to re- plastics, removable head (1H2) strict freedom of movement of the caps and to protect them from impact forces. 3. For UN 0360, 0361 and 0500, detonators are not required to be attached to the safety fuse, metal-clad mild detonating cord, detonating cord, or shock tube. Inner packagings are not required if the packing configuration re- stricts freedom of movement of the caps and protects them from impact forces. 132(a) Not necessary Not necessary Boxes steel (4A) aluminium (4B) wood, natural, ordinary (4C1) wood, natural, sift proof walls (4C2) plywood (4D) reconstituted wood (4F) fibreboard (4G) plastics, solid (4H2) Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules 55397

TABLE OF PACKING METHODSÐContinued

Packing instruction Inner packagings Intermediate packagings Outer packagings

132(b) Receptacles Not necessary Boxes fibreboard steel (4A) metal aluminium (4B) plastics wood, natural, ordinary (4C1) Sheets wood, natural, sift proof walls (4C2) paper plywood (4D) plastics reconstituted wood (4F) fibreboard (4G) plastics, solid (4H2) 133 PARTICULAR PACKING REQUIRE- Receptacles Receptacles Boxes MENTS OR EXCEPTIONS: fibreboard fibreboard steel (4A) 1. For UN 0043, 0060, 0225, 0268 metal metal aluminium (4B) and 0306 trays are not authorized plastics plastics wood, natural, ordinary (4C1) as inner packagings. wood wood wood, natural, sift proof walls (4C2) 2. Intermediate packagings are only Trays, fitted with dividing partitions plywood (4D) required when trays are used as fibreboard reconstituted wood (4F) inner packagings. plastics fibreboard (4G) wood plastics, solid (4H2) 134 Bags Not necessary Boxes water resistant steel (4A) Receptacles aluminium (4B) fibreboard wood, natural, ordinary (4C1) metal wood, natural, sift proof walls (4C2) plastics plywood (4D) wood reconstituted wood (4F) Sheets fibreboard (4G) fibreboard, corrugated plastics, solid (4H2) Tubes fibreboard Drums steel, removable head (1A2) aluminium, removable head (1B2) 135 Bags Not necessary Boxes paper steel (4A) plastics aluminium (4B) Receptacles wood, natural, ordinary (4C1) fibreboard wood, natural, sift proof walls (4C2) metal plywood (4D) plastics reconstituted wood (4F) wood fibreboard (4G) Sheets plastics, expanded (4H1) paper plastics, solid (4H2) plastics Drums steel, removable head (1A2) aluminium, removable head (1B2) fibre (1G) plastics, removable head (1H2) 136 Bags Not necessary Boxes plastics steel (4A) textile aluminium (4B) Boxes wood, natural, ordinary (4C1) fibreboard wood, natural, sift proof walls (4C2) plastics plywood (4D) wood reconstituted wood (4F) Dividing partitions in the outer fibreboard (4G) packagings plastics, solid (4H2) Drums steel, removable head (1A2) aluminium, removable head (1B2) fibre (1G) plastics, removable head (1H2) 55398 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules

TABLE OF PACKING METHODSÐContinued

Packing instruction Inner packagings Intermediate packagings Outer packagings

137 PARTICULAR PACKING REQUIRE- Bags Not necessary Boxes MENTS OR EXCEPTIONS: plastics steel (4A) For UN 0059, 0439, 0440 and Boxes aluminium (4B) 0441, when the shaped charges fibreboard wood, natural, ordinary (4C1) are packed singly, the conical Tubes wood, natural, sift proof walls (4C2) cavity must face downwards and fibreboard plywood (4D) the package marked ``THIS SIDE metal reconstituted wood (4F) UP''. When the shaped charges plastics fibreboard (4G) are packed in pairs, the conical Dividing partitions in the outer cavities must face inwards to packagings minimize the jetting effect in the event of accidental initiation. 138 PARTICULAR PACKING REQUIRE- Bags Not necessary Boxes MENTS OR EXCEPTIONS: plastics steel (4A) If the ends of the articles are aluminium (4B) sealed, inner packagings are not wood, natural, ordinary (4C1) necessary. wood, natural, sift proof walls (4C2) plywood (4D) reconstituted wood (4F) fibreboard (4G) plastics, solid (4H2) Drums steel, removable head (1A2) aluminium, removable head (1B2) 139 PARTICULAR PACKING REQUIRE- Bags Not necessary Boxes MENTS OR EXCEPTIONS: plastics steel (4A) 1. For UN 0065, 0102, 0104, 0289 Receptacles aluminium (4B) and 0290, the ends of the deto- fibreboard wood, natural, ordinary (4C1) nating cord must be sealed, for metal wood, natural, sift proof walls (4C2) example, by a plug firmly fixed so plastics plywood (4D) that the explosive cannot escape. wood reconstituted wood (4F) The ends of CORD DETONAT- Reels fibreboard (4G) ING flexible must be fastened se- Sheets plastics, solid (4H2) curely. paper Drums 2. For UN 0065 and UN 0289, inner plastics steel, removable head (1A2) packagings are not required aluminium, removable head (1B2) when they are fastened securely plywood (1D) in coils. fibre (1G) plastics, removable head (1H2) 140 PARTICULAR PACKING REQUIRE- Bags Not necessary Boxes MENTS OR EXCEPTIONS: plastics steel (4A) 1. If the ends of UN 0105 are Reels aluminium (4B) sealed, no inner packagings are Sheets wood, natural, ordinary (4C1) required. paper, kraft wood, natural, sift proof walls (4C2) 2. For UN 0101, the packaging plastics plywood (4D) must be sift-proof except when reconstituted wood (4F) the fuse is covered by a paper fibreboard (4G) tube and both ends of the tube plastics, solid (4H2) are covered with removable caps. Drums 3. For UN 0101, steel or aluminium steel, removable head (1A2) boxes or drums must not be aluminium, removable head (1B2) used. fibre (1G) 141 Receptacles Not necessary Boxes fibreboard steel (4A) metal aluminium (4B) plastics wood, natural, ordinary (4C1) wood wood, natural, sift proof walls (4C2) Trays, fitted with dividing partitions plywood (4D) plastics reconstituted wood (4F) wood fibreboard (4G) Dividing partitions in the outer plastics, solid (4H2) packagings Drums steel, removable head (1A2) aluminium, removable head (1B2) fibre (1G) plastics, removable head (1H2) Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules 55399

TABLE OF PACKING METHODSÐContinued

Packing instruction Inner packagings Intermediate packagings Outer packagings

142 Bags Not necessary Boxes paper steel (4A) plastics aluminium (4B) Receptacles wood, natural, ordinary (4C1) fibreboard wood, natural, sift proof walls (4C2) metal plywood (4D) plastics reconstituted wood (4F) wood fibreboard (4G) Sheets plastics, solid (4H2) paper Drums Trays, fitted with dividing steel, removable head (1A2) partitions aluminium, removable head (1B2) plastics fibre (1G) plastics, removable head (1H2) 143 PARTICULAR PACKING REQUIRE- Bags Not necessary Boxes MENTS OR EXCEPTIONS: paper, kraft steel (4A) 1. For UN 0271, 0272, 0415 and plastics aluminium (4B) 0491 when metal packagings are textile wood, natural, ordinary (4C1) used, metal packagings must be textile, rubberized wood, natural, sift proof walls (4C2) so constructed that the risk of ex- Receptacles plywood (4D) plosion, by reason of increase in fibreboard reconstituted wood (4F) internal pressure from internal or metal fibreboard (4G) external causes is prevented. plastics plastics, solid (4H2) 2. Composite packagings (6HH2) Trays, fitted with dividing partitions Drums (plastic receptacle with outer solid plastics steel, removable head (1A2) box) may be used in lieu of com- wood aluminium, removable head (1B2) bination packagings. plywood (1D) fibre (1G) plastics, removable head (1H2) 144 PARTICULAR PACKING REQUIRE- Receptacles Not necessary Boxes MENTS OR EXCEPTIONS: fibreboard steel (4A) For UN 0248 and UN 0249, metal aluminium (4B) packagings must be protected plastics wood, natural, ordinary (4C1) with against the ingress of water. Dividing partitions in the outer metal liner When CONTRIVANCES, WATER packagings plywood (4D) with metal liner ACTIVATED are transported reconstituted wood (4F) with metal unpackaged, they must be pro- liner vided with at least two independ- plastics, expanded (4H1) ent protective features which pre- vent the ingress of water. US 1 1. A jet perforating gun, charged, oil well may be transported under the following conditions: a. Initiation devices carried on the same motor vehicle or offshore supply vessel must be segregated; each kind from every other kind, and from any gun, tool or other supplies, unless approved in accordance with § 173.56. Segregated initiation devices must be carried in a container having individual pockets for each such de- vice or in a fully enclosed steel container lined with a non-sparking material. No more than two segregated initiation devices per gun may be carried on the same motor vehicle. b. Each shaped charge affixed to the gun may not contain more than 112 g (4 ounces) of explosives. c. Each shaped charge if not completely enclosed in glass or metal, must be fully protected by a metal cover after installation in the gun. d. A jet perforating gun classed as 1.1D or 1.4D may be transported by highway by private or contract carriers engaged in oil well operations. (i) A motor vehicle transporting a gun must have specially built racks or carrying cases designed and constructed so that the gun is securely held in place during transportation and is not subject to damage by contact, one to the other or any other article or material carried in the vehicle, and; (ii) The assembled gun packed on the vehicle may not extend beyond the body of the motor vehicle. e. A jet perforating gun classed as 1.4D may be transported by a private offshore supply vessel only when the gun is carried in a motor vehicle as specified in paragraph (d) of this packing method or on offshore well tool pallets provided that: (i) All the conditions specified in paragraphs (a), (b), and (c) of this packing method are met; (ii) The total explosive contents do not exceed 9.1 kg (20 pounds) per tool pallet; (iii) Each cargo vessel compartment may contain up to 90.8 kg (200 pounds) of explosive content if the segregation requirements in §176.83(b)(3) of this sub- chapter are met; and (iv) When more than one vehicle or tool pallet is stowed ``on deck'' a minimum horizontal separation of 3 m (9.8 feet) must be provided.

(d) Class 1 (explosive) materials § 173.124 [Amended] ‘‘UN Manual of Tests and Criteria’’ each owned by the Department of Defense 29. In § 173.124, the following place it appears. and packaged prior to January 1, 1990, changes would be made: d. In paragraph (b)(1), the wording in accordance with the requirements of a. In paragraph (a)(1) introductory ‘‘paragraph 3.a.(1) or 3.a.(2), as this subchapter in effect at that time, are text, the word ‘‘Wetted’’ would be appropriate, of appendix E to this part’’ excepted from the requirements of part revised to read ‘‘Desensitized’’. would be revised to read ‘‘the UN 178 of this subchapter provided the b. In paragraph (a)(2)(i)(D)(2) the Manual of Tests and Criteria’’. packagings have maintained their words ‘‘for a 50 kg package’’ would be e. In paragraph (b)(2), the wording integrity and the goods are declared as added after the words ‘‘greater than ‘‘paragraph 3.b.(1) of appendix E to this ° ° government-owned goods packaged 75 C (167 F)’’. part’’ would be revised to read ‘‘UN prior to January 1, 1990. c. In paragraphs (a)(3) (ii) and (iii), the Manual of Tests and Criteria’’. wording ‘‘paragraph 2.c.(2) of appendix f. In paragraph (c), the wording E to this part’’ would be revised to read ‘‘paragraph 4 of appendix E to this part’’ 55400 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules would be revised to read ‘‘UN Manual (C) A positive result is obtained in a (ii) Packing Group II, for any material of Tests and Criteria’’. test using a 100 mm sample cube at which, in either concentration tested, 30. In § 173.125, paragraphs (b), 100 °C and a negative result is obtained exhibits a mean burning time less than (c)(2)(i), (c)(2)(ii), and (d)(1) through in a test using a 25 mm sample cube at or equal to the mean burning time of a (d)(3) would be revised to read as 140 °C and the substance is transported 2:3 potassium bromate/cellulose follows: in packagings with a volume of more mixture and the criteria for Packing than 450 liters. Group I are not met; § 173.125 Class 4ÐAssignment of packing (iii) Packing Group III for any material group. (d) * * * (1) Packing Group I, if the material which, in either concentration tested, * * * * * reacts vigorously with water at ambient exhibits a mean burning time less than (b) Packing group criteria for readily temperatures and demonstrates a or equal to the mean burning time of a combustible materials of Division 4.1 tendency for the gas produced to ignite 3:7 potassium bromate/cellulose are as follows: spontaneously, or which reacts readily mixture and the criteria for Packing (1) Powdered, granular or pasty with water at ambient temperatures Groups I and II are not met. materials must be classified in Division such that the rate of evolution of (2) The packing group of a Division 4.1 when the time of burning of one or flammable gases is equal or greater than 5.1 material which is a liquid shall be more of the test runs, in accordance 10 liters per kilogram of material over assigned using the following criteria: with the UN Manual of Tests and any one minute; (i) Packing Group I for: Criteria is less than 45 seconds or the (A) Any material which rate of burning is more than 2.2 mm/s. (2) Packing Group II, if the material reacts readily with water at ambient spontaneously ignites when mixed with Powders of metals or metal alloys must cellulose in a 1:1 ratio; or be classified in Division 4.1 when they temperatures such that the maximum rate of evolution of flammable gases is (B) Any material which exhibits a can be ignited and the reaction spreads mean pressure rise time less than the over the whole length of the sample in equal to or greater than 20 liters per kilogram of material per hour, and pressure rise time of a 1:1 perchloric 10 minutes or less. acid (50 percent)/cellulose mixture. (2) Packing group criteria for readily which does not meet the criteria for Packing Group I; or (ii) Packing Group II, any material combustible materials of Division 4.1 which exhibits a mean pressure rise are assigned as follows: (3) Packing Group III, if the material reacts slowly with water at ambient time less than or equal to the pressure (i) For readily combustible solids rise time of a 1:1 aqueous sodium (other than metal powders), Packing temperatures such that the maximum rate of evolution of flammable gases is chlorate solution (40 percent)/cellulose Group II if the burning time is less than mixture and the criteria for Packing 45 seconds and the flame passes the greater than 1 liter per kilogram of material per hour, and which does not Group I are not met. wetted zone. Packing Group II must be (iii) Packing Group III, any material assigned to powders of metal or metal meet the criteria for Packing Group I or II. which exhibits a mean pressure rise alloys if the zone of reaction spreads time less than or equal to the pressure over the whole length of the sample in 31. Section 173.127 would be revised to read as follows: rise time of a 1:1 nitric acid (65 5 minutes or less. percent)/cellulose mixture and the (ii) For readily combustible solids § 173.127 Class 5, Division 5.1ÐDefinition criteria for Packing Group I and II are (other than metal powders), Packing and assignment of packing groups. not met. Group III must be assigned if the (a) Definition. For the purpose of this burning rate time is less than 45 seconds § 173.128 [Amended] and the wetted zone stops the flame subchapter, oxidizer (Division 5.1) means a material that may, generally by 32. In § 173.128, the following propagation for at least 4 minutes. changes would be made: Packing Group III must be assigned to yielding oxygen, cause or enhance the combustion of other materials. a. In paragraph (c)(3), the wording metal powders if the reaction spreads ‘‘United Nations Recommendations on (1) A solid material is classed as a over the whole length of the sample in the Transport of Dangerous Goods, Tests Division 5.1 material if, when tested in more than 5 minutes but not more than and Criteria, part III’’ would be revised accordance with the UN Manual of 10 minutes. to read ‘‘UN Manual of Tests and Tests and Criteria, its mean burning (c) * * * Criteria’’. time is less than or equal to the burning (2) * * * b. In paragraph (e), the wording time of a 3:7 potassium bromate/ (i) Packing Group II, if the material ‘‘Figure 11.1 (Classification and Flow cellulose mixture. gives a positive test result when tested Chart Scheme for Organic Peroxides) (2) A liquid material is classed as a with a 2.5-cm cube size sample at from the UN Recommendations, Tests ° Division 5.1 material if, when tested in 140 C; or and Criteria, part III’’ would be revised accordance with the UN Manual of (ii) Packing Group III, if— to read ‘‘Figure 11.2 (Classification and Tests and Criteria, it spontaneously (A) A positive test result is obtained Flow Chart Scheme for Organic ignites or its mean time for a pressure in a test using a 100 mm sample cube Peroxides) from the UN Manual of Tests ° rise from 690 kPa to 2070 kPa gauge is at 140 C and a negative test result is and Criteria, Part II’’. obtained in a test using a 25 mm sample less then the time of a 1:1 nitric acid (65 33. In § 173.132, a new paragraph ° cube at 140 C and the substance is percent)/cellulose mixture. (b)(3)(iii) would be added, paragraph (c) transported in packagings with a (b) Assignment of packing groups. (1) would be redesignated as paragraph (d), volume of more than 3 cubic meters; or The packing group of a Division 5.1 and a new paragraph (c) would be (B) A positive test result is obtained material which is a solid shall be added, to read as follows: in a test using a 100 mm sample cube assigned using the following criteria: at 120 °C and a negative result is (i) Packing Group I, for any material § 173.132 Class 6, Division 6.1Ð obtained in a test using a 25 mm sample which, in either concentration tested, Definitions. cube at 140 °C and the substance is exhibits a mean burning time less than * * * * * transported in packagings with a the mean burning time of a 3:2 (b) * * * volume of more than 450 liters; or potassium bromate/cellulose mixture; (3) * * * Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules 55401

(iii) A solid substance must be tested respirable range as defined in this obtain reliable acute oral and dermal if at least 10 percent of its total mass is paragraph (b)(3)(iii). toxicity data on the actual mixture to be likely to be dust in a respirable range, (c) For purposes of classifying and transported. If reliable, accurate data is e.g., the aerodynamic diameter of that assigning packing groups to mixtures not available, then either of the particle-fraction is 10 microns or less. A possessing oral or dermal toxicity following methods may be performed: liquid substance must be tested if a mist hazards according to the criteria in § 173.133(a)(1), it is necessary to (1) Classify the formulation according is likely to be generated in a leakage of to the most hazardous constituent of the the transport containment. Both for determine the acute LD50 of the mixture. If a mixture contains more than one mixture as if that constituent were solid and liquid substances more than active constituent, there are three present in the same concentration as the 90% (by mass) of a specimen prepared possible approaches that may be used to total concentration of all active for inhalation toxicity must be in the constituents; or determine the oral or dermal LD50 of the mixture. The preferred method is to (2) Apply the formula:

C C C 100 A +B Z =

TA TB TTZM

Where: packagings in accordance with be secured to the container by non- C=the % concentration of constituent A, § 173.150 (b)(2) or (b)(3). The metallic banding or other comparable B . . . Z in the mixture; components must be packed in strong methods. T=the oral LD50 values of constituent A, outer packagings. The total gross weight (iii) Internal dunnage must be B . . . Z; of the completed package may not sufficient to prevent movement of the TM=the oral LD50 value of the mixture. exceed 30 kg (66 pounds). devices within the container. * * * * * * * * * * * * * * * 34. In § 173.136, a new paragraph (c) 37. In § 173.162, a sentence would be would be added to read as follows: added at the end of the section to read § 173.166 [Amended] as follows: 39. In addition, in § 173.166, the § 173.136 Class 8ÐDefinitions following changes would be made: * * * * * § 173.162 Gallium. a. The last sentence in paragraph (a) (c) Skin corrosion test data produced * * * Manufactured articles or would be removed. no later than September 30, 1995, using apparatuses, each containing not more b. In paragraph (b) introductory text, the procedures of Part 173, Appendix A, than 100 mg (0.0035 ounce) of gallium the word ‘‘or’’ would be added in effect on September 30, 1995 (see 49 and packaged so that the quantity of immediately following ‘‘air bag CFR part 173, appendix A, revised as of gallium per package does not exceed 1 module,’’ and the wording ‘‘or seat-belt October 1, 1994) for appropriate g (0.35 ounce) are not subject to the module’’ would be removed. exposure times may be used for requirements of this subchapter. c. In paragraph (b)(2), the wording classification and assignment of packing 38. In § 173.166, the section heading ‘‘Tests and Criteria, Second Edition, group for Class 8 materials corrosive to and paragraph (e) would be revised to 1990’’ would be revised to read skin. read as follows: ‘‘Manual of Tests and Criteria, second § 173.137 [Amended] § 173.166 Air bag inflators, air bag revised edition, 1995’’. d. In paragraph (b)(4), the wording ‘‘or 35. In § 173.137, in paragraph (b), the modules and seat-belt pretensioners. seat-belt’’ and the wording ‘‘or seat-belt wording ‘‘other than those meeting * * * * * pre-tensioner’’ would be removed. Packing Group I criteria’’ would be (e) Packagings. The following e. In paragraph (c), in the last added immediately following the word packagings are authorized: sentence, the wording ‘‘or pre- ‘‘Materials’’. (1) 1A2, 1B2, 1G or 1H2 drums. 36. In § 173.152, a new paragraph (2) 3A2 or 3H2 jerricans. tensioner’’ would be removed. (b)(3)(iii) would be added to read as (3) 4C1, 4C2, 4D, 4F, 4G or 4H2 boxes. f. In paragraph (d)(1), the wording (4) Reusable high strength plastic or follows: ‘‘An air bag or seat-belt module’’ would metal containers or dedicated handling be revised to read ‘‘An air bag module § 173.152 Exceptions for Division 5.1 devices are authorized for shipment of or seat-belt pretensioner’’. (oxidizers) and Division 5.2 (organic air bag inflators, air bag modules, and g. In paragraph (d)(2), the wording ‘‘or peroxides). seat-belt pretensioners by highway or seat-belt’’ and the wording ‘‘or pre- * * * * * rail from a manufacturing facility to the tensioner’’ would be removed. (b) * * * assembly facility, subject to the h. In paragraph (f), in the first (3) * * * following conditions: sentence, the wording ‘‘or handling (iii) For polyester resin kits (i) The gross weight of the container device’’ would be added immediately transported by highway, rail, or vessel, or handling device may not exceed 1000 following ‘‘each package’’. the organic peroxide (the activator) must kg (2205 pounds). The container or 40. Section 173.185 would be revised be of type D, E, or F and not require handling device structure must provide to read as follows: temperature control. The organic adequate support to allow them to be peroxide must be packed in inner stacked at least three high with no § 173.185 Lithium batteries and cells. packagings not over 125 ml (4.22 damage to the containers or devices. (a) Except as otherwise provided in ounces) net capacity each for liquids or (ii) If not completely enclosed by this subpart, a lithium cell or battery is 500 g (17.64 ounces) net capacity each design, the container or handling device authorized for transportation only if it for solids. The flammable liquid (the must be covered with plastic, conforms to the provisions of this base) must be packed in inner fiberboard, or metal. The covering must section. 55402 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules

(b) Exceptions. Cells and batteries are (2) Batteries must not contain more (2) Cells and batteries packed with not subject to the requirements of this than 500 g of lithium or lithium alloy. equipment must be packed in inner subchapter if they meet the following (3) Each cell and battery must be packagings conforming to paragraph requirements: equipped with an effective means of (e)(8) of this section in such a manner (1) Each cell with a liquid cathode preventing external short circuits. as to effectively prevent movement and may contain no more than 0.5 g of (4) Each cell and battery must short circuits. The quantity of lithium lithium or lithium alloy, and each cell incorporate a safety venting device or be contained in any piece of equipment with a solid cathode may contain no designed in a manner that will preclude must not exceed 12 g per cell and 500 more than 1.0 g lithium or lithium alloy; a violent rupture under conditions g per battery. Not more than 5 kg of cells (2) Each battery with a liquid cathode normally incident to transportation. and batteries may be packed with each may contain an aggregate quantity of no (5) Batteries containing cells or series item of equipment. more than 1.0 g lithium or lithium alloy, of cells connected in parallel must be (h) Cells and batteries, for disposal, and each battery with a solid cathode equipped with diodes to prevent reverse may be offered for transportation or may contain an aggregate quantity of no current flow. transported to a permitted storage more than 2.0 g of lithium or lithium (6) Cells and batteries must be packed facility and disposal site by motor alloy; in strong inner packagings containing vehicle when they meet the following (3) Each cell or battery containing a not more than 500 g of lithium or requirements: liquid cathode must be hermetically lithium alloy per inner packaging. (1) Cells, when new, may not contain (7) Cells and batteries must be packed sealed; more than 12 g and batteries may not in inner packagings in such a manner as (4) Cells and batteries must be contain more than 500 g of lithium or to effectively prevent short circuits and separated so as to prevent short circuits lithium alloy; to prevent movement which could lead and must be packed in strong (2) Be equipped with an effective to short circuits. packagings, except when installed in (8) Cells and batteries must be means of preventing external short equipment; and packaged in packagings conforming to circuits; and (5) If a liquid cathode battery contains the requirements of part 178 of this (3) Be packed in a strong outer more than 0.5 g of lithium or lithium subchapter at the Packing Group II packaging conforming to the alloy or a solid cathode battery contains performance level: Inner packagings requirements of §§ 173.24 and 173.24a. more than 1.0 g lithium or lithium alloy, must be packed within metal boxes (4A The packaging need not conform to it may not contain a liquid or gas that or 4B), wooden boxes (4C1, 4C2, 4D,or performance requirements of part 178 of is a hazardous material according to this 4F), fiberboard boxes (4G), solid plastic this subchapter. subchapter unless the liquid or gas, if boxes (4H2), fiber drums (1G), metal (i) Cells and batteries and equipment free, would be completely absorbed or drums (1A2 or 1B2), plywood drums containing or packed with cells and neutralized by other materials in the (1D), plastic jerricans (3H2), or metal batteries which do not comply with the battery. jerricans (3A2 or 3B2). provisions of this section may be (c) Cells and batteries also are not (9) Each cell or battery must be of the transported only if they are approved by subject to this subchapter if they meet type proven to meet the criteria of Class the Associate Administrator for the following requirements: 9 by testing in accordance with tests in Hazardous Materials Safety. (1) Each cell contains not more than the UN Manual of Tests and Criteria. (j) For testing purposes, when not 5 g of lithium or lithium alloy; (10) Except as provided in paragraph contained in equipment, cells (2) Each battery contains not more (h) of this section, cells or batteries may containing not more than 12 g of lithium than 25 g of lithium or lithium alloy; not be offered for transportation or or lithium alloy and batteries containing (3) Each cell or battery is of the type transported if any cell has been not more than 500 g of lithium or proven to be non-dangerous by testing discharged to the extent that the open lithium alloy may be offered for in accordance with tests in the UN circuit voltage is less than two volts or transportation or transported by Manual of Tests and Criteria, such is less than 2/3 of the voltage of the fully highway only as items of Class 9. testing must be carried out on each type charged cell, whichever is less. Packaging must conform with prior to the initial transport of that type; (f) Equipment containing or packed paragraphs (e)(8)(i) and (iii) of this and with cells and batteries meeting the section with not more than 100 cells per (4) Cells and batteries are designed or requirements of paragraph (b) or (c) of package. packed in such a way as to prevent short this section is excepted from all other 41. In § 173.220, paragraph (c)(1) circuits under conditions normally requirements of this subchapter. would be revised to read as follows: encountered in transportation. (g) Equipment containing or packed (d) Cells and batteries and equipment with cells and batteries may be § 173.220 Internal combustion engines, containing cells and batteries which transported as items of Class 9 if the self-propelled vehicles, and mechanical were first transported prior to January 1, equipment containing internal combustion batteries and cells meet all the engines or wet batteries. 1995, and were assigned to Class 9 on requirements of paragraph (e) of this the basis of the requirements of this section and are packaged as follows: * * * * * subchapter in effect on October 1, 1993, (1) Equipment containing cells and (c) * * * may continue to be transported in batteries must be packed in a strong (1) For transportation by vessel, the accordance with the applicable outer packaging that is waterproof or is provisions of this subchapter do not requirements in effect on October 1, made waterproof through the use of a apply to a motor vehicle or mechanical 1993. liner unless the equipment is made equipment which is electrically (e) Cells and batteries may be waterproof by nature of its construction. powered by a wet electric storage transported as items of Class 9 if they The equipment must be secured within battery. meet the requirements in paragraphs the outer packaging and be packed as to * * * * * (e)(1) through (e)(9) of this section: effectively prevent movement, short 42. In § 173.224, the Self-Reactive (1) Cells must not contain more than circuits, and accidental operation Materials Table at the end of paragraph 12 g of lithium or lithium alloy. during transport; and (b) would be revised to read as follows: Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules 55403

§ 173.224 Packaging and control and (b) * * * emergency temperatures for self-reactive materials. * * * * *

SELF-REACTIVE MATERIALS TABLE

Control Emer- Self-reactive substance Identifica- Concentra- Packing tempera- gency tem- Notes tion number tionÐ(%) method tureÐ(°C) perature

(1) (2) (3) (4) (5) (6) (7)

Azodicarbonamide formulation type B, temperature controlled 3232 <100 OP5 1 Azodicarbonamide formulation type C ...... 3224 <100 OP6 ...... Azodicarbonamide formulation type C, temperature controlled 3234 <100 OP6 1 Azodicarbonamide formulation type D ...... 3226 <100 OP7 ...... Azodicarbonamide formulation type D, temperature controlled 3236 <100 OP7 1 2,2′ -Azodi(2,4-dimethyl-4-methoxyvaleronitrile) ...... 3236 100 OP7 ±5 +5 ...... 2,2′ -Azodi(2,4-dimethylvaleronitrile) ...... 3236 100 OP7 +10 +15 ...... 2,2′ -Azodi(ethyl 2-methylpropionate) ...... 3235 100 OP7 +20 +25 ...... 1,1-Azodi (hexahydrobenzonitrile) ...... 3226 100 OP7 2,2-Azodi(isobutyronitrile) ...... 3234 100 OP6 +40 +45 ...... 2,2-Azodi(2-methylbutyronitrile) ...... 3236 100 OP7 +35 +40 ...... Benzene-1,3-disulphohydrazide, as a paste ...... 3226 52 OP7 ...... Benzene sulphohydrazide ...... 3226 100 OP7 ...... 4-(Benzyl(ethyl)amino)-3- ethoxybenzenediazonium zinc chlo- 3226 100 OP7 ...... ride. 4-(Benzyl(methyl)amino)-3- ethoxybenzenediazonium zinc 3236 100 OP7 +40 +45 chloride. 3-Chloro-4-diethylaminobenzenediazonium zinc chloride ...... 3226 100 OP7 ...... 2-Diazo-1-Naphthol-4-sulphochloride ...... 3222 100 OP5 ...... 2-Diazo-1-Naphthol-5-sulphochloride ...... 3222 100 OP5 ...... 2,5-Diethoxy-4- morpholinobenzenediazonium zinc chloride ... 3236 67±100 OP7 +35 +40 ...... 2,5-Diethoxy-4- morpholinobenzenediazonium zinc chloride ... 3236 66 OP7 +40 +45 ...... 2,5-Diethoxy-4- morpholinobenzenediazonium tetrafluoro- 3236 100 OP7 +30 +35 borate. 2,5-Diethoxy-4- (phenylsulphonyl)benzenediazonium zinc 3236 67 OP7 +40 +45 ...... chloride. Diethylene glycol bis(allyl carbonate) + Diisopropylperoxy- 3237 ≥88+≤12 OP8 ±10 0 ...... dicarbonate. 2,5-Dimethoxy-4-(4- 3236 79 OP7 +40 +45 ...... methylphenylsulphony)benzenediazonium zinc chloride. 4-Dimethylamino-6-(2- dimethylaminoethoxy)toluene-2-diazo- 3236 100 OP7 +40 +45 ...... nium zinc chloride. N,N′-Dinitroso-N, N′-dimethyl- terephthalamide, as a paste .... 3224 72 OP6 ...... N,N′-Dinitrosopentamethylenetetramine ...... 3224 82 OP6 2 Diphenyloxide-4,4′-disulphohydrazide ...... 3226 100 OP7 ...... 4-Dipropylaminobenzenediazonium zinc chloride ...... 3226 100 OP7 ...... 2-(N,N-Ethoxycarbonylphenylamino)-3- methoxy-4-(N-methyl- 3236 63±92 OP7 +40 +45 ...... N- cyclohexylamino)benzenediazonium zinc chloride. 2-(N,N-Ethoxycarbonylphenylamino)-3- methoxy-4-(N-methyl- 3236 62 OP7 +35 +40 ...... N- cyclohexylamino)benzenediazonium zinc chloride. N-Formyl-2-(nitromethylene)-1,3- perhydrothiazine ...... 3236 100 OP7 +45 +50 ...... 2-(2-Hydroxyethoxy)-1-(pyrrolidin-1- yl)benzene-4-diazonium 3236 100 OP7 +45 +50 ...... zinc chloride. 3-(2-Hydroxyethoxy)-4-(pyrrolidin-1- yl)benzenediazonium zinc 3236 100 OP7 +40 +45 ...... chloride. 2-(N,N- Methylaminoethylcarbonyl)-4-(3,4- dimethyl-phenyl- 3236 96 OP7 +45 +50 ...... sulphonyl)benzene diazonium zinc chloride. 4- Methylbenzenesulphonylhydrazide ...... 3226 100 OP7 ...... 3-Methyl-4-(pyrrolidin-1- yl)benzenediazonium tetrafluoro- 3234 95 OP6 +45 +50 ...... borate. 4-Nitrosophenol ...... 3236 100 OP7 +35 +40 ...... Self-reactive liquid, sample ...... 3223 OP2 3 Self-reactive liquid, sample, temperature control ...... 3233 OP2 3 Self-reactive solid, sample ...... 3224 OP2 3 Self-reactive solid, sample, temperature control ...... 3234 OP2 3 Sodium 2-diazo-1-naphthol-4-sulphonate ...... 3226 100 OP7 ...... Sodium 2-diazo-1-naphthol-5-sulphonate ...... 3226 100 OP7 ...... Tetramine palladium (II) nitrate ...... 3234 100 OP6 +30 +35 ......

NOTES: 1. The emergency and control temperatures must be determined in accordance with § 173.21(f). 2. With a compatible diluent having a boiling point of not less than 150°C. 55404 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules

3. Samples may only be offered for transportation when all available data indicate that the sample is no more dangerous than a self-reactive substance type B, and the sample is packaged using packaging method OP2, in quantities less than 10 kg per shipment, employing any nec- essary temperature controls.

* * * * * § 173.225 Packaging requirements and the peroxide in a 50 kg (110 lbs) other provisions for organic peroxides. package. A type A diluent may be used § 173.224 [Amended] * * * * * to replace a type B diluent in equal 43. In addition, in § 173.224, the (b) * * * concentration. following changes would be made: (2) ID number. * * * The word * * * * * a. Paragraph (c)(3) would be removed. ‘‘EXEMPT’’ appearing in the column (6) Packing method. Column 6 b. Paragraph (c)(4) would be denotes that the material is not specifies the highest packing method redesignated as paragraph (c)(3). regulated as an organic peroxide. (largest packaging capacity) authorized c. In the first sentence in paragraph * * * * * for the organic peroxide. Lower (c)(1), the reference ‘‘(c)(4)’’ would be (4) * * * numbered packing methods (smaller revised to read ‘‘(c)(3)’’. (ii) The required mass percent of packaging capacities) are also d. In newly designated paragraph ‘‘Diluent type B’’ is specified in Column authorized. For example, if OP3 is (c)(3)(ii), the wording ‘‘OP2A or OP2B, 4b. A diluent type B is an organic liquid specified, then OP2 and OP1 are also for a liquid or a solid, respectively’’ which is compatible with the organic authorized. When an IBC or bulk would be revised to read ‘‘OP2’’. peroxide and which has a boiling point, packaging is authorized and meets the 44. In § 173.225, paragraph (b)(2) at atmospheric pressure, of less than requirements of paragraph (e) of this would be amended by adding a second 150 °C (302 °F) but at least 60 °C (140 section, lower control temperatures than sentence, and paragraph (b)(4)(ii), °F), and a flash point greater than 5 °C those specified for non-bulk packagings paragraph (b)(6), the Organic Peroxides (41 °F). Type B diluents may be used for are required. The Table of Packing Table at the end of paragraph (b), desensitizing all organic peroxides Methods in paragraph (d) of this section paragraph (d) and paragraph (e)(5) provided that the boiling point is at defines the non-bulk packing methods. would be revised, to read as follows: least 60 °C (140 °F) above the SADT of * * * * * ORGANIC PEROXIDE TABLE

Diluent (Mass %) Temperature (°C) Concentra- Water Packing Technical name ID No. tion (Mass %) method Emer- Notes (Mass %) ABI Control gency

(1) (2) (3) (4a) (4b) (4c) (5) (6) (7a) (7b) (8)

Acetyl acetone peroxide ...... UN3105 ≤42 ≤48 ...... ≥8 OP7 ...... 2 Acetyl acetone peroxide [as a paste] ...... UN3106 ≤32 ...... OP7 ...... 21 Acetyl benzoyl peroxide ...... UN3105 ≤45 ≥55 ...... OP7 ...... Acetyl cyclohexanesulfonyl peroxide ...... UN3112 ≤82 ...... ≥12 OP4 ¥10 0 Acetyl cyclohexanesulfonyl peroxide ...... UN3115 ≤32 ...... ≥68 ...... OP7 ¥10 0 tert-Amyl hydroperoxide ...... UN3107 ≤88 ≥6 ...... ≥6 OP8 ...... tert-Amyl peroxyacetate ...... UN3107 ≤62 ≥38 ...... OP8 ...... tert-Amyl peroxybenzoate ...... UN3105 ≤96 ≥4 ...... OP7 ...... tert-Amyl peroxy-2-ethylhexanoate ...... UN3115 ≤100 ...... OP7 +20 +25 tert-Amyl peroxy-2-ethylhexyl carbonate ...... UN3105 ≤100 ...... OP7 ...... tert-Amyl peroxyneodecanoate ...... UN3115 ≤77 ...... ≥23 ...... OP7 0 +10 tert-Amyl peroxypivalate ...... UN3113 ≤77 ...... ≥23 ...... OP5 +10 +15 tert-Amylperoxy-3,5,5-trimethylhexanoate ...... UN3101 ≤100 ...... OP5 ...... tert-Butyl cumyl peroxide ...... UN3105 >42¥100 ...... OP7 ...... 1, 9 tert-Butyl cumyl peroxide ...... UN3106 ≤42 ...... ≥58 ...... OP7 ...... 1, 9 n-Butyl-4,4-di-(tert-butylperoxy)valerate ...... UN3103 >52¥100 ...... OP5 ...... n-Butyl-4,4-di-(tert-butylperoxy)valerate ...... UN3106 ≤52 ...... ≥48 ...... OP7 ...... n-Butyl-4,4-di-(tert-butylperoxy)valerate ...... UN3108 ≤42 ...... ≥58 ...... OP8 ...... tert-Butyl hydroperoxide ...... UN3103 >79¥90 ...... ≥10 OP5 ...... 13 tert-Butyl hydroperoxide ...... UN3105 ≤80 ≥20 ...... OP7 ...... 4, 13 tert-Butyl hydroperoxide ...... UN3107 ≤79 ...... >14 OP8 ...... 13, 16 tert-Butyl hydroperoxide ...... UN3109 ≤72 ...... ≥28 OP8 ...... 7, 13 tert-Butyl hydroperoxide [and] Di-tert- UN3103 <82+>9 ...... ≥7 OP5 ...... 13 butylperoxide. tert-Butyl monoperoxymaleate ...... UN3102 >52¥100 ...... OP5 ...... tert-Butyl monoperoxymaleate ...... UN3103 ≤52 ≥48 ...... OP6 ...... tert-Butyl monoperoxymaleate ...... UN3108 ≤52 ...... ≥48 ...... OP8 ...... tert-Butyl monoperoxymaleate [as a paste] .... UN3108 ≤52 ...... OP8 ...... tert-Butyl monoperoxymaleate [as a paste] .... UN3110 ≤42 ...... OP8 ...... 7 tert-Butyl monoperoxyphthalate ...... UN3102 ≤100 ...... OP5 ...... tert-Butyl peroxyacetate ...... UN3101 >52±77 ≥23 ...... OP5 ...... tert-Butyl peroxyacetate ...... UN3103 >32±52 ≥48 ...... OP6 ...... tert-Butyl peroxyacetate ...... UN3109 ≤32 ≥68 ...... OP8 ...... 10 tert-Butyl peroxyacetate ...... UN3119 ≤32 ...... ≥68 ...... Bulk +30 +35 7 tert-Butyl peroxyacetate ...... UN3109 ≤22 ...... ≥78 ...... OP8 ...... 14 tert-Butyl peroxybenzoate ...... UN3103 >77±100 ≤23 ...... OP5 ...... tert-Butyl peroxybenzoate ...... UN3105 >52±77 ≥23 ...... OP7 ...... 1 tert-Butyl peroxybenzoate ...... UN3106 ≤52 ...... ≥48 ...... OP7 ...... tert-Butyl peroxybutyl fumarate ...... UN3105 ≤52 ≥48 ...... OP7 ...... tert-Butyl peroxycrotonate ...... UN3105 ≤77 ≥23 ...... OP7 ...... tert-Butyl peroxydiethylacetate ...... UN3113 ≤100 ...... OP5 +20 +25 tert-Butyl peroxydiethylacetate [and] tert-Butyl UN3105 ≤33 + ≤33 ≥33 ...... OP7 ...... peroxybenzoate. Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules 55405

ORGANIC PEROXIDE TABLEÐContinued

Diluent (Mass %) Temperature (°C) Concentra- Water Packing Technical name ID No. tion (Mass %) method Emer- Notes (Mass %) ABI Control gency

(1) (2) (3) (4a) (4b) (4c) (5) (6) (7a) (7b) (8) tert-Butyl peroxy-2-ethylhexanoate ...... UN3113 >52±100 ...... OP6 +20 +25 tert-Butyl peroxy-2-ethylhexanoate ...... UN3117 ≤52 ...... ≥48 ...... OP8 +30 +35 tert-Butyl peroxy-2-ethylhexanoate ...... UN3118 ≤52 ...... ≥48 ...... OP8 +20 +25 tert-Butyl peroxy-2-ethylhexanoate ...... UN3119 ≤32 ...... ≥68 ...... OP8 +40 +45 tert-Butyl peroxy-2-ethylhexanoate ...... UN3119 ≤32 ...... ≥68 ...... IBC +30 +35 10 tert-Butyl peroxy-2-ethylhexanoate ...... UN3119 ≤32 ...... ≥68 ...... Bulk +10 +15 14 tert-Butyl peroxy-2-ethylhexanoate [and] 2,2- UN3115 ≤31+≤36 ...... ≥33 ...... OP7 +35 +40 di-(tert-Butylperoxy)butane. tert-Butyl peroxy-2-ethylhexanoate [and] 2,2- UN3106 ≤12 + ≤14 ≥14 ...... ≥60 ...... OP7 ...... di-(tert-Butylperoxy)butane. tert-Butyl peroxy-2-ethylhexylcarbonate ...... UN3105 ≤100 ...... OP7 ...... tert-Butyl peroxyisobutyrate ...... UN3111 >52±77 ...... ≥23 ...... OP5 +15 +20 tert-Butyl peroxyisobutyrate ...... UN3115 ≤52 ...... ≥48 ...... OP7 +15 +20 tert-Butylperoxyisopropylcarbonate ...... UN3103 ≤77 ≥23 ...... OP5 ...... 1-(2-tert-Butylperoxy isopropyl)-3-isopro UN3105 ≤77 ≥23 ...... OP7 ...... penylbenzene. 1-(2-tert-Butylperoxy isopropyl)-3-isopro UN3108 ≤42 ...... ≥58 ...... OP8 ...... penylbenzene. tert-Butyl peroxy-2-methylbenzoate ...... UN3103 ≤100 ...... OP5 ...... tert-Butyl peroxyneodecanoate ...... UN3115 >77±100 ...... OP7 ¥5 +5 tert-Butyl peroxyneodecanoate ...... UN3115 ≤77 ...... ≥23 ...... OP7 0 +10 tert-Butyl peroxyneodecanoate [as a stable UN3117 ≤42 ...... OP8 0 +10 dispersion in water]. tert-Butyl peroxyneodecanoate [as a stable UN3118 ≤42 ...... OP8 0 +10 dispersion in water (frozen)]. tert-Butyl peroxyneoheptanoate ...... UN3115 ≤77 ≥23 ...... OP7 +10 +15 3-tert-Butylperoxy-3-phenylphthalide ...... UN3106 ≤100 ...... OP7 ...... tert-Butyl peroxypivalate ...... UN3113 >67±77 ≥23 ...... OP5 0 +10 tert-Butyl peroxypivalate ...... UN3115 ≤67 ...... ≥33 ...... OP7 0 +10 tert-Butyl peroxypivalate ...... UN3119 ≤27 ...... ≥73 ...... OP8 +30 +35 tert-Butyl peroxypivalate ...... UN3119 ≤27 ...... ≥73 ...... IBC +10 +15 10 tert-Butyl peroxypivalate ...... UN3119 ≤27 ...... ≥73 ...... Bulk ¥5 +5 14 tert-Butylperoxy stearylcarbonate ...... UN3106 ≤100 ...... OP7 ...... tert-Butyl peroxy-3,5,5-trimethylhexanoate ...... UN3105 >32±100 ...... OP7 ...... tert-Butyl peroxy-3,5,5-trimethylhexanoate ...... UN3109 ≤32 ≥68 ...... OP8 ...... 10 tert-Butyl peroxy-3,5,5-trimethylhexanoate ...... UN3119 ≤32 ...... ≥68 ...... Bulk +35 +40 14 3-Chloroperoxybenzoic acid ...... UN3102 >57±86 ...... ≥14 ...... OP1 ...... 3-Chloroperoxybenzoic acid ...... UN3106 ≤77 ...... ≥6 ≥17 OP7 ...... 3-Chloroperoxybenzoic acid ...... UN3106 ≤57 ...... ≥3 ≥40 OP7 ...... Cumyl hydroperoxide ...... UN3107 >90±98 ≤10 ...... OP8 ...... 13 Cumyl hydroperoxide ...... UN3109 ≤90 ≥10 ...... OP8 ...... 7, 13, 15 Cumyl peroxyneodecanoate ...... UN3115 ≤77 ...... ≥23 ...... OP7 ¥10 0 Cumyl hydroperoxide [as a stable dispersion UN3119 ≤52 ...... OP8 ¥10 0 in water]. Cumyl peroxyneoheptanoate ...... UN3115 ≤77 ≥23 ...... OP7 0 +10 Cumyl peroxypivalate ...... UN3115 ≤77 ...... ≥23 ...... OP7 ¥5 +5 Cyclohexanone peroxide(s) ...... UN3104 ≤91 ...... ≥9 OP6 ...... 13 Cyclohexanone peroxide(s) ...... UN3105 ≤72 ...... ≥28 ...... OP7 ...... 5 Cyclohexanone peroxide(s) [as a paste] ...... UN3106 ≤72 ...... OP7 ...... 5, 21 Cyclohexanone peroxide(s) ...... Exempt ≤32 ...... ≥68 ...... Exempt ...... Diacetone alcohol peroxides ...... UN3115 ≤57 ...... ≥26 ...... ≥8 OP7 +40 +45 5 Diacetyl peroxide ...... UN3115 ≤27 ...... ≥73 ...... OP7 +20 +25 8.13 Di-tert-amyl peroxide ...... UN3107 ≤100 ...... OP8 ...... 1,1-Di-(tert-amylperoxy)cyclohexane ...... UN3103 ≤82 ≥18 ...... OP6 ...... Dibenzoyl peroxide ...... UN3102 >51±100 ...... ≤48 ...... OP2 ...... 3 Dibenzoyl peroxide ...... UN3102 ≤77±94 ...... ≥6 OP4 ...... 3 Dibenzoyl peroxide ...... UN3104 ≤77 ...... ≥23 OP6 ...... Dibenzoyl peroxide ...... UN3106 ≤62 ...... ≥28 ≥10 OP7 ...... Dibenzoyl peroxide [as a paste] ...... UN3106 >52±62 ...... OP7 ...... 21 Dibenzoyl peroxide [as a paste] ...... UN3108 ≤56.5 ...... ≥15 OP8 ...... Dibenzoyl peroxide ...... UN3106 >35±52 ...... ≥48 ...... OP7 ...... Dibenzoyl peroxide [as a paste] ...... UN3108 ≤52 ...... OP8 ...... 21 Dibenzoyl peroxide [as a paste] ...... Exempt ≤50 ...... ≥18 Exempt ...... Dibenzoyl peroxide ...... UN3107 >36±42 >18 ...... ≤40 OP8 ...... Dibenzoyl peroxide ...... UN3107 >36±42 ≥58 ...... OP8 ...... Dibenzoyl perioxide [as a stable dispersion in UN3109 ≤42 ...... OP8 ...... 10 water]. Dibenzoyl peroxide ...... Exempt ≤35 ...... ≥65 ...... Exempt ...... Dibenzyl peroxydicarbonate ...... UN3112 ≤87 ...... ≥13 OP5 +25 +30 Di-(4-tert-butylcyclohexyl)peroxydicarbonate UN3114 ≤100 ...... OP6 +30 +35 Di-(4-tert-butylcyclohexyl)peroxydicarbonate UN3119 ≤42 ...... OP8 +30 +35 10 [as a stable dispersion in water]. Di-tert-butyl peroxide ...... UN3107 >32±100 ...... OP8 ...... Di-tert-butly peroxide ...... UN3109 ≤52 ...... ≥48 ...... OP8 ...... 7, 24 Di-tert-butyl peroxyazelate ...... UN3105 ≤52 ≥48 ...... OP7 ...... 2,2-Di-(tert-butylperoxy)butane ...... UN3103 ≤52 ≥48 ...... OP6 ...... 1,1-Di-(tert-butylperoxy)cyclohexane ...... UN3101 >80±100 ...... OP5 ...... 55406 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules

ORGANIC PEROXIDE TABLEÐContinued

Diluent (Mass %) Temperature (°C) Concentra- Water Packing Technical name ID No. tion (Mass %) method Emer- Notes (Mass %) ABI Control gency

(1) (2) (3) (4a) (4b) (4c) (5) (6) (7a) (7b) (8)

1,1-Di-(tert-butylperoxy)cyclohexane ...... UN3103 >52±80 ≥20 ...... OP5 ...... 1,1-Di-(tert-butylperoxy)cyclohexane ...... UN3105 ≤52 ≥48 ...... OP7 ...... 1,1-Di-(tert-butylperoxy)cyclohexane ...... UN3106 ≤42 ≥13 ...... ≥45 ...... OP7 ...... 1,1-Di-(tert-butylperoxy)cyclohexane ...... UN3109 ≤42 ≥58 ...... OP8 ...... 10 1,1-Di-(tert-butylperoxy)cyclohexane ...... UN3107 ≤27 ≥36 ...... OP8 ...... 22 1,1-Di-(tert-butylperoxy)cyclohexane ...... UN3109 ≤25 ≥25 ≥50 ...... OP8 ...... 7 1,1-Di-(tert-butylperoxy)cyclohexane ...... UN3109 ≤13 ≥13 ≥74 ...... OP8 ...... 7 Di-n-butyl peroxydicarbonate ...... UN3115 >27±52 ...... ≥48 ...... OP7 ¥15 ¥5 Di-n-butyl peroxydicarbonate [as a stable dis- UN3118 ≤42 ...... OP8 ¥15 ¥5 persion in water (frozen)]. Di-n-butyl peroxydicarbonate ...... UN3117 ≤27 ...... ≥73 ...... OP8 ¥10 0 Di-sec-butyl peroxydicarbonate ...... UN3113 >52±100 ...... OP4 ¥20 ¥10 6 Di-sec-butyl peroxydicarbonate ...... UN3115 ≤52 ...... ≥48 ...... OP7 ¥15 ¥5 Di-(2-tert-butylperoxyisopropyl)benzene(s) ..... UN3106 >42±100 ...... ≤57 ...... OP7 ...... 1,9 Di-(2-tert-butylperoxyisopropyl)benzene(s) ..... Exempt ≤42 ...... ≥58 ...... Exempt ...... Di-(tert-butylperoxy)phthalate ...... UN3105 >42±52 ≥48 ...... OP7 ...... Di-(tert-butylperoxy)phthalate [as a paste] ...... UN3106 ≤52 ...... OP7 ...... 21 Di-(tert-butylperoxy)phthalate ...... UN3107 ≤42 ≥58 ...... OP8 ...... 2,2-Di-(tert-butylperoxy)propane ...... UN3105 ≤52 ≥48 ...... OP7 ...... 2,2-Di-(tert-butylperoxy)propane ...... UN3106 ≤42 ≥13 ...... ≥45 ...... OP7 ...... 1,1-Di-(tert-butylperoxy)-3,5,5- UN3101 >90±100 ...... OP5 ...... trimethylcyclohexane. 1,1-Di-(tert-butylperoxy)-3,5,5- UN3103 >57±90 ≥10 ...... OP5 ...... trimethylcyclohexane. 1,1-Di-(tert-butylperoxy)-3,5,5- UN3106 ≤57 ...... ≥43 ...... OP7 ...... trimethylcyclohexane. 1,1-Di-(tert-butylperoxy)-3,5,5- UN3107 ≤57 ≥43 ...... OP8 ...... trimethylcyclohexane. 1,1-Di-(tert-butylperoxy)-3,5,5- UN3107 ≤32 ≥26 ≥42 ...... OP8 ...... trimethylcyclohexane. Dicetyl peroxydicarbonate ...... UN3116 ≤100 ...... OP7 +30 +35 Dicetyl peroxydicarbonate [as a stable disper- UN3119 ≤42 ...... OP8 +30 +35 10 sion in water]. Di-4-chlorobenzoyl peroxide ...... UN3102 ≤77 ...... ≥23 OP5 ...... Di-4-chlorobenzoyl peroxide [as a paste] ...... UN3106 ≤52 ...... OP7 ...... 21 Di-4-chlorobenzoyl peroxide ...... Exempt ≤32 ...... ≥68 ...... Exempt ...... Dicumyl peroxide ...... UN3109 >52±100 ...... ≤48 ...... OP8 ...... 7, 9, 11 Dicumyl peroxide ...... UN3110 >52±100 ...... ≤48 ...... OP8 ...... 7, 9, 11 Dicumyl peroxide ...... Exempt ≤52 ≥48 ...... Exempt ...... Dicumyl peroxide ...... Exempt ≤42 ...... ≥58 ...... Exempt ...... Dicyclohexyl peroxydicarbonate ...... UN3112 >91-100 ...... OP3 +5 +10 Dicyclohexyl peroxydicarbonate ...... UN3114 ≤91 ...... ≥9 OP5 +5 +10 Didecanoyl peroxide ...... UN3114 ≤100 ...... OP6 +30 +35 2,2-Di-(4,4-di(tert-butylperoxy) cyclohexyl) UN3106 ≤42 ...... ≥58 ...... OP7 ...... propane. 2,2-Di-(4,4-di(tertbutylperoxy) cyclohexyl) pro- UN3107 ≤25 ...... ≥75 ...... OP8 ...... pane. Di-2,4-dichlorobenzoyl peroxide ...... UN3102 ≤77 ...... ≥23 OP5 ...... Di-2,4-dichlorobenzoyl peroxide [as a paste UN3106 ≤52 ...... OP7 ...... with silicone oil]. Di-(2-ethylhexyl) peroxydicarbonate ...... UN3113 >77±100 ...... OP5 ¥20 ¥10 Di-(2-ethylhexyl) peroxydicarbonate ...... UN3115 ≤77 ...... OP7 ¥15 ¥5 Di-(2-ethylhexyl) peroxydicarbonate [as a sta- UN3119 ≤52 ...... OP8 ¥15 ¥5 ble dispersion in water]. Di-(2-ethylhexyl) peroxydicarbonate [as a sta- UN3118 ≤42 ...... OP8 ¥15 ¥5 ble dispersion in water (frozen)]. Diethyl peroxydicarbonate ...... UN3115 ≤27 ...... ≥73 ...... OP7 ¥10 0 2,2-Dihydroperoxypropane ...... UN3102 ≤27 ...... ≥73 ...... OP5 ...... Di-(1-hydroxycyclohexyl)peroxide ...... UN3106 ≤100 ...... OP7 ...... Diisobutyryl peroxide ...... UN3111 >32±52 ...... ≥48 ...... OP5 ¥20 ¥10 Diisobutyryl peroxide ...... UN3115 ≤32 ...... ≥68 ...... OP7 ¥20 ¥10 Diisopropylbenzene dihydroperoxide ...... UN3106 ≤82 ≥5 ...... ≥5 OP7 ...... 17 Diisopropyl peroxydicarbonate ...... UN3112 >52±100 ...... OP2 ¥15 ¥5 Diisopropyl peroxydicarbonate ...... UN3115 ≤52 ...... ≥48 ...... OP7 ¥10 0 Diisotridecyl peroxydicarbonate ...... UN3115 ≤100 ...... OP7 ¥10 0 Dilauroyl peroxide ...... UN3106 ≤100 ...... OP7 ...... Dilauroyl peroxide [as a stable dispersion in UN3109 ≤42 ...... OP8 ...... 10 water]. Di-(2-methylbenzoyl)peroxide ...... UN3112 ≤87 ...... ≥13 OP5 +30 +35 Di-(4-methylbenzoyl)peroxide [as a paste with UN3106 ≤52 ...... OP7 ...... silicone oil]. 2,5-Dimethyl-2,5-di-(benzoylperoxy)hexane .... UN3102 >82±100 ...... OP5 ...... 2,5-Dimethyl-2,5-di-(benzoylperoxy)hexane .... UN3104 ≤82 ...... ≥18 OP5 ...... 2,5-Dimethyl-2,5-di-(benzoylperoxy)hexane .... UN3106 ≤82 ...... ≥18 ...... OP7 ...... 2,5-Dimethyl-2,5-di-(tertbutylperoxy)hexane ... UN3105 >52¥100 ...... OP7 ...... 2,5-Dimethyl-2,5-di-(tertbutylperoxy)hexyne-3 UN3103 >52¥86 ...... OP5 ...... 2,5-Dimethyl-2,5-di-(tertbutylperoxy)hexane ... UN3106 ≤52 ...... ≥48 ...... OP7 ...... Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules 55407

ORGANIC PEROXIDE TABLEÐContinued

Diluent (Mass %) Temperature (°C) Concentra- Water Packing Technical name ID No. tion (Mass %) method Emer- Notes (Mass %) ABI Control gency

(1) (2) (3) (4a) (4b) (4c) (5) (6) (7a) (7b) (8)

2,5-Dimethyl-2,5-di-(tertbutylperoxy)hexane ... UN3109 ≤52 ≥48 ...... OP8 ...... 7 2,5-Dimethyl-2,5-di-(tertbutylperoxy)hexyane-3 UN3106 ≤52 ...... ≥48 ...... OP7 ...... 2,5-Dimethyl-2,5-di-(tertbutylperoxy)hexane UN3108 ≤47 ...... OP8 ...... [as a paste]. 2,5-Dimethyl-2,5-di-(2- UN3115 ≤100 ...... OP7 +20 +25 ethylhexanoylperoxy)hexane. 2,5-Dimethyl-2,5-dihydroperoxyhexane ...... UN3104 ≤82 ...... ≥18 OP6 ...... 2,5-Dimethyl-2,5-di-(3,5,5- UN3105 ≤77 ≥23 ...... OP7 ...... trimethylhexanoylperoxy)hexane. 1,1-Dimethyl-3- UN3117 ≤52 ...... ≥48 ...... OP8 +0 +10 hydroxybutylperoxyneoheptanoate. Dimyristyl peroxydicarbonate ...... UN3116 ≤100 ...... OP7 +20 +25 Dimyristyl peroxydicarbonate [as a stable dis- UN3119 ≤42 ...... OP8 +20 +25 persion in water]. Dimyristyl peroxydicarbonate [as a stable dis- UN3119 ≤42 ...... IBC +15 +25 10 persion in water]. Di-(2-neodecanoylperoxyisopropyl)benzene ... UN3115 ≤52 ≥48 ...... OP7 ¥10 0 Di-n-nonanoyl peroxide ...... UN3116 ≤100 ...... OP7 0 +10 Di-n-octanoyl peroxide ...... UN3114 ≤100 ...... OP5 +10 +15 Diperoxy azelaic acid ...... UN3116 ≤27 ...... ≥73 ...... OP7 +35 +40 Diperoxy dodecane diacid ...... UN3116 >13¥42 ...... ≥58 ...... OP7 +40 +45 Diperoxy dodecane diacid ...... Exempt ≤13 ...... ≥87 ...... Exempt ...... Di-(2-phenoxyethyl)peroxydicarbonate ...... UN3102 >85¥100 ...... OP5 ...... Di-(2-phenoxyethyl)peroxydicarbonate ...... UN3106 ≤85 ...... ≥15 OP7 ...... Dipropionyl peroxide ...... UN3117 ≤27 ...... ≥73 ...... OP8 +15 +20 Di-n-propyl peroxydicarbonate ...... UN3113 ≤100 ...... OP4 ¥25 ¥15 Distearyl peroxydicarbonate ...... UN3106 ≤87 ...... ≥13 ...... OP7 ...... Disuccinic acid peroxide ...... UN3102 >72¥100 ...... OP4 ...... 18 Disuccinic acid peroxide ...... UN3116 ≤72 ...... ≥28 OP7 +10 +15 Di-(3,5,5-trimethyl-1,2-dioxolanyl-3)peroxide UN3116 ≤52 ...... OP7 +30 +35 21 [as a paste]. Di-(3,5,5-trimethylhexanoyl)peroxide ...... UN3115 >38±82 ≥18 ...... OP7 0 +10 Di-(3,5,5-trimethylhexanoyl)peroxide [as a sta- UN3117 ≤52 ...... OP8 +10 +15 ble dispersion in water]. Di-(3,5,5-trimethylhexanoyl)peroxide ...... UN3119 ≤38 ≥62 ...... OP8 +20 +25 Di-(3,5,5-trimethylhexanoyl)peroxide ...... UN3119 ≤38 ≥62 ...... IBC +10 +15 10 Di-(3,5,5-trimethylhexanoyl)peroxide ...... UN3119 ≤38 ≥62 ...... Bulk ¥10 0 14 Ethyl 3,3-di-(tert-amylperoxy)butyrate ...... UN3105 ≤67 ≥33 ...... OP7 ...... Ethyl 3,3-di-(tert-butylperoxy)butyrate ...... UN3103 >77¥100 ...... OP5 ...... Ethyl 3,3-di-(tert-butylperoxy)butyrate ...... UN3105 ≤77 ≥23 ...... OP7 ...... Ethyl 3,3-di-(tert-butylperoxy)butyrate ...... UN3106 ≤52 ...... ≥48 ...... OP7 ...... 3,3,6,6,9,9-Hexamethyl-1,2,4,5- UN3102 >52¥100 ...... OP4 ...... tetraoxacyclononane. 3,3,6,6,9,9-Hexamethyl-1,2,4,5- UN3105 ≤52 ≥48 ...... OP7 ...... tetraoxacyclononane. 3,3,6,6,9,9-Hexamethyl-1,2,4,5- UN3106 ≤52 ...... ≥48 ...... OP7 ...... tetraoxacyclononane. Isopropyl sec-butyl peroxydicarbonate + di- 3111 ≤52 + ≤28 + ...... OP5 ¥20 ¥10 sec-butyl peroxydicarbonate + di-isopropyl ≤22 peroxydicarbonate. Isopropylcumyl hydroperoxide ...... UN3109 ≤72 ≥28 ...... OP8 ...... 7, 13 p-Menthyl hydroperoxide ...... UN3105 >72¥100 ...... OP7 ...... 13 p-Menthyl hydroperoxide ...... UN3109 <72 >44 ...... OP8 ...... 7, 25 Methylcyclohexanone peroxide(s) ...... UN3115 ≤67 ...... ≥33 ...... OP7 +35 +40 Methyl ethyl ketone peroxide(s) ...... UN3101 ≤52 ≥48 ...... OP5 ...... 5, 13 Methyl ethyl ketone peroxide(s) ...... UN3105 ≤45 ≥55 ...... OP7 ...... 5 Methyl ethyl ketone peroxide(s) ...... UN3107 ≤40 ≥60 ...... OP8 ...... 5 Methyl isobutyl ketone peroxide(s) ...... UN3105 ≤62 ≥19 ...... OP7 ...... 5, 23 Organic peroxide, liquid, sample ...... UN3103 ...... OP2 ...... 12 Organic peroxide, liquid, sample, temperature UN3113 ...... OP2 ...... 12 controlled. Organic peroxide, solid, sample ...... UN3104 ...... OP2 ...... 12 Organic peroxide, solid, sample, temperature UN3114 ...... OP2 ...... 12 controlled. Peracetic acid with not more than 20% hydro- Exempt ≤6 ...... ≥60 Exempt ...... gen peroxide. Peracetic acid with not more than 26% hydro- UN3109 ≤17 ...... OP8 ...... 10, 13 gen peroxide. Peracetic acid with 7% hydrogen peroxide ..... UN3107 ≤36 ...... ≥15 OP8 ...... 13 Peroxyacetic acid, type D, stabilized ...... UN3105 ≤43 ...... OP7 ...... 13, 20 Peroxyacetic acid, type E, stabilized ...... UN3107 ≤43 ...... OP8 ...... 13, 20 Peroxyacetic acid, type F, stabilized ...... UN3109 ≤43 ...... OP8 ...... 13, 20 Pinanyl hydroperoxide ...... UN3105 ≥56¥100 ...... OP7 ...... 13 Pinanyl hydroperoxide ...... UN3109 <56 >44 ...... OP8 ...... 7 Tetrahydronaphthyl hydroperoxide ...... UN3106 ≤100 ...... OP7 ...... 1,1,3,3-Tetramethylbutyl hydroperoxide ...... UN3105 ≤100 ...... OP7 ...... 55408 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules

ORGANIC PEROXIDE TABLEÐContinued

Diluent (Mass %) Temperature (°C) Concentra- Water Packing Technical name ID No. tion (Mass %) method Emer- Notes (Mass %) ABI Control gency

(1) (2) (3) (4a) (4b) (4c) (5) (6) (7a) (7b) (8)

1,1,3,3-Tetramethylbutylperoxy-2- UN3115 ≤100 ...... OP7 +20 +25 ethylhexanoate. 2,4,4-Trimethylpentyl-2-peroxyneodecanoate UN3115 ≤72 ...... ≥28 ...... OP7 ¥5 +5 2,4,4-Trimethylpentyl-2-peroxyneodecanoate UN3119 ≤52 ...... OP8 ¥5 +5 [as a stable dispersion in water]. 2,4,4-Trimethylpentyl-2-peroxy UN3115 ≤37 ...... ≥63 ...... OP7 ¥10 0 phenoxyacetate. Notes: 1. For domestic shipments, OP8 is authorized. 2. Available oxygen must be <4.7 percent. 3. For concentrations <80 percent OP5 is allowed. For concentrations of at least 80 percent but <85 percent, OP4 is allowed. For concentrations of at least 85 per- cent, maximum package size is OP2. 4. The diluent may be replaced by di-tert-butyl peroxide. 5. Available oxygen must be ≤9 percent. 6. For domestic shipments, OP5 is authorized. 7. This material may be transported in intermediate bulk containers and bulk packagings under the provisions of paragraph (e) of this section. 8. Only non-metallic packagings are authorized. 9. For domestic shipments, this material may be transported in bulk packagings under the provisions of paragraph (e)(3)(ii) of this section. 10. This material may be transported in intermediate bulk containers under the provisions of paragraph (e) of this section. 11. Up to 2000 kg per container authorized. 12. Samples may only be offered for transportation when all available data indicate that the sample is no more dangerous than an Organic Peroxide type B, and the sample is packaged using packaging method OP2 in quantities less than 10 kg per shipment, employing any necessary temperature controls. 13. ``Corrosive'' subsidiary risk label is required. 14. This material may be transported in bulk packagings under the provisions of paragraph (e) of this section. 15. No ``Corrosive'' subsidiary risk label is required for concentrations below 80%. 16. With <6% di-tert-butyl peroxide. 17. With ≥8% 1-isopropylhydroperoxy-4-isopropylhydroxybenzene. 18. Addition of water to this organic peroxide will decrease its thermal stability. 19. [Reserved] 20. Mixtures with hydrogen peroxide, water and acid(s). 21. With diluent type A, with or without water. 22. With >36 percent, by mass, ethylbenzene. 23. With >19 percent, by mass, methyl isobutyl ketone. 24. Diluent type b with boiling point >100 C. 25. No ``Corrosive'' subsidiary risk label is required for concentrations below 56%.

* * * * * (i) Drums: 1A1, 1A2, 1B1, 1B2, 1D, and outer packagings of combination or (d) Packagings for organic peroxides 1G, 1H1, 1H2; composite packagings) are used only for and self-reactive substances are listed in (ii) Jerricans: 3A1, 3A2, 3B1, 3B2, packing methods OP7 and OP8. the Maximum Quantity per Packing 3H1, 3H2; (iii) Boxes: 4C1, 4C2, 4D, 4F, 4G, 4H1, (3) In combination packagings, glass Method Table. The packing methods are 4H2, 4A, 4B; or receptacles are used only as inner designated OP1 to OP8. The quantities (iv) Composite packagings with a packagings with a maximum content of specified for each packing method plastic inner receptacle: 6HA1, 6HA2, 0.5 kg or 0.5 liter. represent the maximum that is 6HB1, 6HB2, 6HC, 6HD1, 6HD2, 6HG1, (4) The maximum quantity per authorized. 6HG2, 6HH1, 6HH2. packaging or package for Packing (1) The following types of packagings (2) Metal packaging (including inner Methods OP1–OP8 must be as follows: are authorized: packagings of combination packagings

MAXIMUM QUANTITY PER PACKAGING/PACKAGE FOR PACKING METHODS OP1 TO OP8

Packing method Maximum quantity OP1 OP2 1 OP3 OP4 1 OP5 OP6 OP7 OP8

Solids and combination packagings (liquid and solid) (kg) ...... 0.5 0.5/10 5 5/25 25 50 50 2 200 Liquids (L) ...... 0.5 ...... 5 ...... 30 60 60 3 225 1 If two values are given, the first applies to the maximum net mass per inner packaging and the second to the maximum net mass of the com- plete package. 2 60 kg for jerricans and 100 kg for boxes. 3 60 L for jerricans.

(e) * * * (ii) Metal: 31A. b. Paragraphs (c)(4) and (c)(5) would (5) Intermediate bulk containers. be redesignated as paragraphs (c)(2) and Intermediate bulk containers that are § 173.225 [Amended] (c)(3). tested at the Packing Group II 45. In addition, in § 173.225, the c. In the first sentence in paragraph performance level in accordance with following changes would be made: (c)(1), the reference ‘‘(c)(4)’’ would be subpart O of part 178 of this subchapter a. Paragraphs (c)(2) and (c)(3) would revised to read ‘‘(c)(2)’’. are authorized as follows: be removed. d. In newly designated paragraph (i) Composite: 31HA1, 31H1; and (c)(2)(ii), the wording ‘‘OP2A or OP2B, Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules 55409 for a liquid or a solid, respectively’’ added immediately following (4) Motor vehicles or mechanical would be revised to read ‘‘OP2’’. ‘‘barometer’’ each place it appears. equipment may be refueled when necessary in the hold of a vessel in § 173.226 [Amended] PART 176ÐCARRIAGE BY VESSEL accordance with § 176.78. 46. In § 173.226, in paragraph (c)(1), (5)(i) When a motor vehicle or the entry ‘‘Aluminum jerrican: 3B2’’ 54. The authority citation for part 176 would continue to read as follows: mechanical equipment with fuel in its would be added immediately following tanks is stowed in a closed freight ‘‘Plastic jerrican: 3H2’’. Authority: 49 App. U.S.C. 1803, 1804, container, the following warning must 47. In § 173.316, a new paragraph (d) 1805, 1808; 49 CFR part 1. be affixed to the access doors: would be added to read as follows: 55. In § 176.78, paragraph (k) would WARNING—MAY CONTAIN § 173.316 Cryogenic liquids in cylinders. be revised to read as follows: EXPLOSIVE MIXTURES WITH AIR— * * * * * KEEP IGNITION SOURCES AWAY § 176.78 Use of power-operated industrial WHEN OPENING. (d) Mixtures of cryogenic liquid. trucks on board vessels. (ii) The warning must be on a Where charging requirements are not * * * * * specifically prescribed in paragraph (c) contrasting background and must be (k) Stowage of power-operated of this section, the cryogenic liquid readily legible from a distance of 8 industrial trucks on board a vessel. must be shipped in packagings meters (26 feet). 1. Trucks stowed on board a vessel approved by the Associate (b) All equipment used for handling must meet vessel stowage requirements Administrator for Hazardous Materials vehicles or mechanical equipment must in § 176.905. Safety. be designed so that the fuel tank and 48. In § 173.318, a new paragraph * * * * * fuel system are protected from stress (f)(4) would be added to read as follows: 56. In § 176.84, in the paragraph (b) that might cause rupture or other table, a new entry for code 17, currently damage incident to handling. § 173.318 Cryogenic liquids in cargo reserved, would be added in numerical (c) Two hand-held, portable, dry tanks. order to read as follows: chemical fire extinguishers of at least * * * * * 4.5 kg (10 pounds) capacity each must (f) * * * § 176.84 Other requirements for stowage be separately located in an accessible (4) Mixtures of cryogenic liquid. and segregation for cargo vessels and passenger vessels. location in each hold or compartment in Where charging requirements are not which any motor vehicle or mechanical specifically prescribed in this paragraph * * * * * equipment is stowed. (f), the cryogenic liquid must be shipped (b) * * * (d) ‘‘NO SMOKING’’ signs must be in packagings approved by the Associate conspicuously posted at each access Code Provisions Administrator for Hazardous Materials opening to the hold or compartment. Safety. (e) Each portable electrical light, * * * * * ***** including a flashlight, used in the Appendix E—[Removed] 17 ...... Segregation same as for flam- stowage area must be an approved, mable gases but ``away from'' explosion-proof type. All electrical 49. Appendix E to Part 173 would be dangerous when wet. connections for any portable light must removed and reserved. be made to outlets outside the space in ***** Appendix F—[Removed] which any vehicle or mechanical equipment is stowed. 50. Appendix F to Part 173 would be * * * * * (f) Each hold or compartment must be removed and reserved. 57. Section 176.905 would be revised ventilated and fitted with an overhead to read as follows: §§ 173.201, 173.202, 173.203, 173.211, water sprinkler system or fixed fire 173.212, 173.213 [Amended] § 176.905 Motor vehicles or mechanical extinguishing system capable of alerting 51. In addition to the amendments set equipment powered by internal combustion personnel on the bridge. forth above, part 173 would be amended engines. (g) Each hold or compartment must be by adding the wording ‘‘Aluminum (a) A motor vehicle or any equipped with a smoke or fire detection jerrican: 3B1 or 3B2’’ immediately mechanized equipment powered by an system. following ‘‘Plastic jerrican: 3H1 or 3H2’’ internal combustion engine is subject to (h) All electrical equipment in the each place it appears in the following the following requirements when hold or compartment other than fixed sections: carried as cargo on a vessel: explosion-proof lighting must be a. Section 173.201 (b) and (c) (1) Before being loaded on a vessel, disconnected from its power source at a b. Section 173.202 (b) and (c) each motor vehicle or mechanical location outside the hold or c. Section 173.203 (b) and (c) equipment must be inspected for fuel compartment during the handling and d. Section 173.211 (b) and (c) leaks. A motor vehicle or mechanical transportation of any vehicle or e. Section 173.212 (b) and (c) equipment showing any signs of leakage mechanical equipment. Where the f. Section 173.213 (b) and (c) may not be transported. disconnecting means is a switch or circuit breaker, it must be locked in the PART 175ÐCARRIAGE BY AIRCRAFT (2) The fuel tank of the vehicle or mechanical equipment powered by open position until all vehicles have 52. The authority citation for part 175 liquid fuel may not be more than one- been discharged. would continue to read as follows: fourth full. (i) Exceptions. A motor vehicle or Authority: 49 App. U.S.C. 1803, 1804, (3) Whenever possible, each vehicle mechanical equipment is excepted from 1807, 1808; 49 CFR part 1. or mechanical equipment must be the requirements of this subchapter if stowed to allow for its inspection during any one of the following requirements § 175.10 [Amended] transit. are met: 53. In § 175.10, in paragraph (a)(22), (1) The motor vehicle or mechanical the wording ‘‘or thermometer’’ would be equipment has an internal combustion 55410 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Proposed Rules engine using liquid fuel that has a 59. In § 178.511, paragraph (a), (i) The code number designating the flashpoint less than 38 °C (100 °F) and— paragraph (b) introductory text, and intermediate bulk container design type, (i) The fuel tank is empty; paragraph (b)(1) would be revised, the name or symbol of the manufacturer, (ii) The engine is run until it stalls for paragraphs (b)(2) through (b)(6) would the date of manufacture and the country lack of fuel; and be redesignated as paragraphs (b)(3) authorizing the allocation of the mark as (iii) No hazardous material is stowed through (b)(7) and a new paragraph specified in paragraph (a) of this in the vehicle or equipment. (b)(2) would be added, to read as section; (2) The motor vehicle or mechanical follows: equipment has an internal combustion (ii) Where the outer casing of a engine using liquid fuel that has a § 178.511 Standards for aluminum and composite intermediate bulk container flashpoint of 38 °C (100 °F) or higher steel jerricans. can be dismantled, each of the detachable parts must be marked with and— (a) The following are identification the month and year of manufacture and (i) The fuel tank contains 418 liters codes for aluminum and steel jerricans: the name or symbol of the manufacturer. (110 gallons) of fuel or less; (1) 3A1 for a non-removable head (ii) There are no fuel leaks in any steel jerrican; 61. In § 178.707, in paragraphs (c)(2) portion of the fuel system; and (2) 3A2 for a removable head steel and (c)(3) introductory text, a new (iii) No hazardous material is stowed jerrican; sentence would be added at the end of in the vehicle or equipment. each paragraph, and a new paragraph (3) The motor vehicle or mechanical (3) 3B1 for a non-removable head aluminum jerrican; and (c)(6) would be added, to read as equipment is stowed in a hold or follows: compartment designated by the (4) 3B2 for a removable head administration of the country in which aluminum jerrican. § 178.707 Standards for composite the vessel is registered to be specially (b) Construction requirements for intermediate bulk containers. suited for vehicles. See 46 CFR 70.10– aluminum and steel jerricans are as * * * * * follows: 44 and 90.10–38 for U.S. vessels. (c) * * * (4) The motor vehicle or mechanical (1) For steel jerricans the body and equipment is electrically powered by heads must be constructed of steel sheet (2) * * * The outer packaging of wet electric storage batteries. of suitable type and adequate thickness 31HZ2 composite intermediate bulk (5) The motor vehicle or mechanical in relation to the capacity of the jerrican containers must enclose the inner equipment is equipped with liquefied and its intended use. Minimum receptacles on all sides. petroleum gas or other compressed gas thickness and marking requirements in (3) * * * The inner receptacle of fuel tanks and— §§ 173.28(b)(4) and 178.503(a)(9) of this 31HZ2 composite intermediate bulk (i) The tanks are completely emptied subchapter apply to jerricans intended containers must consist of at least three of (liquid) gas; for reuse. plies of film. (ii) The line from the fuel tank to the (2) For aluminum jerricans the body * * * * * regulator and the regulator itself is and heads must be constructed of (6) Intermediate IBCs of type 31HZ2 drained of all trace of (liquid) gas; and aluminum at least 99% pure or of an must be limited to a capacity of not (iii) The fuel shut-off valve is closed. aluminum base alloy. Material must be more than 1250 liters. (j) The provisions of this subchapter of a type and of adequate thickness in do not apply to items of equipment such relation to the capacity of the jerrican § 178.815 [Amended] as fire extinguishers, compressed gas and to its intended use. accumulators, airbag inflators and the 62. In § 178.815, in paragraph (c)(3), like which are installed in the motor * * * * * the wording ‘‘which bear the stacking vehicle or mechanical equipment if they 60. In § 178.703, a new paragraph load’’ would be added immediately are necessary for the operation of the (b)(6) would be added to read as following ‘‘with plastic outer vehicle or equipment, or for the safety follows: packagings’’. of its operator or passengers. § 178.703 Marking of intermediate bulk Issued in Washington, DC on October 1, containers. 1996, under authority delegated in 49 CFR PART 178ÐSPECIFICATIONS FOR part 106. PACKAGINGS * * * * * (b) * * * Alan I. Roberts, 58. The authority citation for part 178 (6) For each composite intermediate Associate Administrator for Hazardous would continue to read as follows: bulk container, the inner receptacle Materials Safety. Authority: 49 U.S.C. 5101–5127; 49 CFR must be marked with at least the [FR Doc. 96–25547 Filed 10–24–96; 8:45 am] 1.53. following information: BILLING CODE 4910±60±P/M federal register October 25,1996 Friday Underground CoalMines;FinalRule Diesel-Powered Equipmentin Safety RequirementsfortheUseof Approval, ExhaustGasMonitoring,and 30 CFRParts7,etal. Mine SafetyandHealthAdministration Department ofLabor Part III 55411 55412 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations

DEPARTMENT OF LABOR in 1974 to over 2,900 units operating in a number of specific areas to be 173 mines in 1995. MSHA projects that addressed. Mine Safety and Health Administration the number of diesel units operating in On October 4, 1989, the Mine Safety underground coal mines could increase and Health Administration published a 30 CFR Parts 7, 31, 32, 36, 70, and 75 to approximately 4,000 in 250 Notice of Proposed Rulemaking in the RIN 1219±AA27 underground coal mines by the year Federal Register [54 FR 40950] that 2000. included criteria for the approval of Approval, Exhaust Gas Monitoring, Although diesel-powered equipment diesel engines and other related and Safety Requirements for the Use does not have the inherent electrocution equipment; addressed exposure limits, of Diesel-Powered Equipment in hazard of electric-powered equipment, monitoring, and recordkeeping Underground Coal Mines it nonetheless presents a number of requirements for certain diesel safety and health risks. By introducing emissions; and provided corresponding AGENCY: Mine Safety and Health an internal combustion engine into an safety standards for the use of diesel- Administration, Labor. environment where explosive levels of powered equipment in underground ACTION: Final rule. methane can be present, diesel-powered coal mines, including the safe storage equipment brings with it risks of fire or SUMMARY: This final rule establishes and transport of diesel fuel, and the new requirements for the approval of explosion. Diesel engines also have high training of persons performing work on diesel engines and other components temperature exhaust components diesel equipment. On the same day, used in underground coal mines; which, in the presence of coal and other MSHA also published an Advance requirements for monitoring of gaseous combustibles in the underground mine Notice of Proposed Rulemaking [54 FR diesel exhaust emissions by coal mine environment, present a fire hazard. The 40996] soliciting comment on the operators; and safety standards for the handling and storage of diesel fuel approach and scope of an MSHA use of diesel-powered equipment in underground also present potentially approval program for diesel machines. underground coal mines. The final rule serious fire hazards. Finally, diesel MSHA held four public hearings on the is derived in part from existing MSHA engines produce exhaust gases proposed rule: in Salt Lake City, Utah; regulations, and provides protection containing carbon monoxide, oxides of Pittsburgh, Pennsylvania; Chicago, against explosion, fire, and other safety nitrogen, and particulate matter, Illinois; and Birmingham, Alabama. and health hazards related to the use of presenting potentially serious health This final rule, which includes diesel-powered equipment in risks to miners. specifications for the approval of diesel underground coal mines. The final rule Before publication of this final rule, engines as well as provisions for the safe also amends certain equipment safety MSHA’s regulations contained limited and healthful use of such equipment in standards in part 75 previously safety and health and machine approval underground coal mines, is derived applicable only to electric-powered requirements that specifically addressed from the data, information, and public equipment to apply to diesel-powered the use of diesel-powered equipment in comments compiled during the equipment. The new standards are underground coal mines. In the 1980’s, rulemaking process. The final rule, like consistent with advances in mining the increase of the numbers of this the proposal, takes an integrated technology, address hazards not covered equipment in underground coal mines, approach to the control of diesel safety by existing standards, and impose coupled with the health and safety risks and health hazards, requiring clean- minimal additional paperwork associated with its use, highlighted the burning engines on diesel-powered requirements. need for a regulatory approach machines, maintained by persons who specifically tailored to diesel-powered have been adequately trained for the EFFECTIVE DATES: This regulation is equipment operated in underground task. Sufficient ventilating air is effective April 25, 1997, except for coal mines. required where diesel-powered subparts E and F of part 7, the removal In response to this need, the Secretary equipment is operated to control the of part 31, the amendments to part 36, of Labor convened a Federal advisory potential health hazards of diesel and § 75.1907 which are effective committee in 1987 to evaluate and make exhaust. Sampling every shift confirms November 25, 1996. Incorporations by recommendations for the safe and the effectiveness of the mine ventilation reference were approved by the Director healthful use of diesel-powered system in addressing these hazards. of the Federal Register as of April 25, equipment in underground coal mines. 1997. Part 7 Equipment Approval The Diesel Advisory Committee FOR FURTHER INFORMATION CONTACT: addressed approval issues—covering MSHA regulations require the Patricia W. Silvey, Director, Office of equipment design and performance; use Agency’s approval of the design of Standards, Regulations, and Variances, issues—addressing the safe use of diesel electrical equipment to be used in the Mine Safety and Health Administration, equipment in the mine environment; production areas of underground coal 4015 Wilson Boulevard, Arlington, VA and health issues—concerning the mines. This equipment must be 22203–1984. Ms. Silvey can be reached evaluation and control of health hazards designed to eliminate fire and explosion at [email protected] (Internet E-mail), associated with diesel equipment. In hazards. MSHA’s approval program has 703–235–1910 (voice), or 703–235–5551 July 1988, the Committee issued a report been very successful in reducing the (facsimile). of its recommendations entitled ‘‘Report number of fires, explosions and other SUPPLEMENTARY INFORMATION: of the Mine Safety and Health Advisory hazards associated with electric- Committee on Standards and powered equipment. The final rule I. Background Regulations for Diesel-Powered establishes a similar approach for Coal mine operators began to Equipment in Underground Coal diesel-powered equipment used in areas introduce diesel-powered equipment Mines’’. In its report the Committee of underground coal mines where into underground mines in the early concluded that MSHA should develop permissible (explosion-proof) electric 1970’s. The number of diesel units regulations to govern the approval and equipment is required, ensuring the operating in underground coal mines use of diesel-powered equipment in same level of safety in mines where has increased from approximately 150 underground coal mines, and identified diesel-powered equipment is used. Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55413

The permissibility requirements for commenters’ recommendations, the Under the final rule individual units diesel-powered equipment used in gassy final rule requires that the same test of diesel equipment must be ventilated, non-coal mines in MSHA’s part 36 cycle be used for testing both the as a general rule, with the air quantity regulations have been in place for a gaseous and particulate emissions. In specified on the equipment’s approval number of years. Although specific response to commenters’ name plate. The quantity of air required regulations did not exist for diesel- recommendations, the final rule is based in areas where multiple units of powered equipment operated in on ISO 8178, an international consensus equipment are operated is based on a underground coal mines, MSHA has standard, which establishes a common simple addition of approval plate air used the ventilation plan approval test cycle for the measurement of quantities. The final rule also allows for process to require the use of permissible gaseous and particulate emissions. All adjustments in air quantities for diesel-powered equipment, approved equipment testing under part 7 is multiple units of equipment, if sampling under part 36, in those areas of intended to be conducted at test sites of contaminants indicates that lesser air underground coal mines where other than MSHA facilities, such as quantities will result in dilution to the permissible electric equipment is manufacturers’ laboratories, necessary levels. In addition, the final required. However, mine ventilation independent testing laboratories, or rule establishes specific locations where plans have generally only addressed fire other government or university air quantities must be measured. and explosion protection for equipment laboratories. Under the final rule, low sulfur fuel operating near the point of coal must be used to operate diesel-powered Part 70 Exhaust Gas Monitoring. extraction (inby), and other locations equipment underground. Low sulfur where methane may be present, and The final rule addresses the fuel, which is readily available and have not addressed other possible safety monitoring and control of gaseous diesel widely used throughout the United hazards associated with the use of exhaust emissions. The final rule States, will lower gaseous and diesel-powered equipment in other requires area sampling as part of the particulate emissions, helping to protect (outby) areas. Additionally, mine onshift examination during every work miners from exposure to harmful diesel ventilation plans have not dealt with shift. These monitoring provisions will exhaust contaminants. In addition, the such important concerns as the storage ensure, in a reliable and systematic final rule prohibits the use of flammable and handling of diesel fuel and regular manner, that miners will be protected liquids as additives in diesel fuel used maintenance of diesel equipment. from exposure to harmful levels of underground and requires that only The final rule requires that only gaseous contaminants. additives registered with the approved engines be used in diesel- The final rule requires that mine Environmental Protection Agency in powered equipment in underground operators take representative samples of accordance with 40 CFR Part 79 be used coal mines, and establishes approval carbon monoxide and nitrogen dioxide in diesel-powered equipment. requirements for diesel engines to be in strategic locations to determine The use of diesel fuel underground used in both permissible areas (inby) concentrations of these contaminants in can present risks to miners’ safety, and nonpermissible areas (outby) under miners’ workplaces. The sampling because the spilling of fuel on hot part 7, subpart E. The subpart E locations are based on knowledge of the surfaces or electric components, or the approval requirements are modeled after specific operation of diesel equipment inadvertent ignition of stored diesel existing approval requirements in part underground and the behavior of fuel, can result in fire. Additionally, a 36 for engines used in gassy non-coal gaseous emissions generated by these fire started with a combustible material mines. Certain other safety features, machines. Samples exceeding an action other than diesel fuel that then spreads such as flame arresters, spark arresters, level of 50 percent of the threshold limit to diesel fuel stored underground could and water scrubbers, must be added to values (TLV) for carbon monoxide and be catastrophic. Diesel fuel handling the engines used in permissible areas to nitrogen dioxide trigger corrective and storage are addressed in the final ensure that they can be operated safely action by the mine operator. rule by specific requirements for diesel fuel storage and the transportation of in the coal mine environment. An Part 75 Safety Requirements engine in combination with these safety fuel from one location to another. features is termed a diesel power The final rule specifies minimum New design, installation, and package. A separate approval was ventilating air quantities in areas where maintenance requirements are established in the final rule for the diesel equipment is operated, and established under the final rule for fire power package because the power requires that the quantities be suppression systems installed on diesel- package manufacturer is normally a incorporated into the mine operator’s powered equipment and fuel company other than the engine approved mine ventilation plan. As part transportation units. The requirements manufacturer and controls the assembly of the equipment approval process in in the final rule address the risk of fire of the power package. In addition, part 7 of the final rule, diesel engines on diesel-powered equipment caused approval requirements for power used underground are tested for gaseous by, for example, hot exhaust packages under part 7, subpart F, are and particulate emissions. The required components, dragging brakes, and incorporated into machines approved minimum ventilating air quantity is shorted electrical components igniting under existing part 36. This is similar to determined based on the results of these diesel fuel, hydraulic fluid, brake fluid, the approach taken for electrical emission tests and is included on the lube oil, and other combustible equipment where explosion-proof approval plate for each unit of diesel- materials. The final rule also requires components are incorporated into powered equipment. The approval plate that automatic fire-suppression systems machines approved under part 18. quantity of ventilating air is the air be listed or approved by a nationally In order to protect miners from quantity needed to dilute the exhaust recognized independent testing harmful contaminants emitted from gases to their permissible exposure laboratory. diesel engines, the approval limits. This air quantity should be used The final rule recognizes that regular requirements in the final rule contain in ventilation system design by the mine maintenance of diesel-powered test procedures and limits on the operator and in the evaluation and equipment is essential. Inadequate concentrations of carbon monoxide and approval of minimum air quantities in equipment maintenance can result in oxides of nitrogen. Based on ventilation plans by MSHA. the creation of a fire or explosion 55414 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations hazard, and the levels of harmful diesel-powered equipment and fuel be requested from MSHA’s Office of gaseous and particulate components in transportation units; § 75.1912(h) and Standards, Regulations, and Variances. diesel exhaust can rise when equipment (i), Fire suppression systems for Information is to be recorded, is not adequately maintained. In permanent underground diesel fuel maintained for the period specified, and response, the final rule requires diesel- storage facilities; § 75.1914 (f)(1), (f)(2), made accessible, upon request, to powered equipment to be examined on (g)(5), (h)(1) and (h)(2), Maintenance of authorized representatives of the the same weekly basis as electric diesel-powered equipment; § 75.1915(a), Secretary and to miners’ representatives. equipment. The rule specifically (b)(5), (c)(1), and (c)(2), Training and Records are to be stored in a manner requires that air filters be changed and qualification of persons working on that is secure and not susceptible to scrubbers be flushed regularly, and that diesel-powered equipment. alteration, to preserve the integrity of weekly gaseous emission tests be The paperwork burden imposed on records for review by interested parties. conducted on certain diesel equipment manufacturers by the final rule totals This may be done traditionally, by while the engine is operating. The final 558, which is an increase of 790 burden recording in a book, or electronically by rule also requires that persons hours for the transfer of hours from part computer. performing certain work on diesel- 36 approval requirements, and a Examples of books that MSHA powered equipment be qualified. decrease of 232 hours for the removal of considers to be secure and not Commenters agreed that requiring parts 31 and 32. In the first year the final susceptible to alteration include, but are diesel-powered equipment to be rule is in effect, the burden hours on not limited to, record books that are maintained in approved condition is mine operators will be 56,258, of which currently approved by state mine safety necessary to ensure that features large and small mine operators will agencies, and permanently bound installed to reduce the risk of fire, incur 54,774 and 1,484 hours, books. Examples of books that would explosion, and harmful emissions are respectively. After the first year, the not be considered secure include loose- operating properly. The final rule does burden hours to mine operators will be leaf binders and spiral notebooks. Recognizing the trend of electronic not adopt the proposal that MSHA 52,228, of which large and small mine storage and retrieval of information approve the training plans used for operators will incur 50,949 and 1,279 through computers to be an increasingly qualification. Under the final rule, hours, respectively. common business practice, MSHA training to establish qualification for In the first year that the final rule is persons performing maintenance may be permits the use of electronically stored in effect, the total new paperwork records, provided that they are secure obtained through the equipment burden hours to mine operators and manufacturer, community colleges, and not susceptible to alteration, that manufacturers will be 56,816 [56,258 + they are able to capture the information training schools, or other training (790¥232)]. After the first year, the total providers. and signatures required, and that new paperwork burden hours to mine information is accessible to authorized Amendments to Existing Part 75 operators and manufacturers will be representatives of the Secretary and Requirements 52,786 [52,228 + (790¥232)]. miners’ representatives. ‘‘Secure’’ is The final rule amends certain existing MSHA solicited comments regarding intended to mean unalterable or unable MSHA regulations in part 75 by the burden estimates or any other aspect to be modified. An example of extending their applicability to diesel- of the collection of information in the acceptable storage would be a ‘‘write powered equipment. The final rule proposed rule. Proposed paperwork once, read many’’ drive. Electronic requires that certain types of diesel- requirements were submitted to the records meeting these criteria are powered equipment be equipped with Office of Management and Budget practical and as reliable as traditional methane monitors to detect dangerous (OMB) for review in accordance with records. Although the final rule does not levels of methane, and also with cabs or section 3504(h) of the Paperwork require backing up the data, some canopies to protect miners from roof Reduction Act of 1980 (PRA 80). means is necessary to ensure that the falls. Additionally, the final rule Comments by OMB were filed under condition and existence of clarifies that accumulation of coal dust comment numbers 1219–0111, 1219– electronically stored information is not and other combustible materials is 0112, and 1219–0114. Control number compromised or lost. prohibited on diesel-powered 1219–0100 was approved for proposed The 1995 Paperwork Reduction Act equipment. These safety features have paperwork burden hours required by mandates agencies to encourage the use been proven to save miners’ lives. part 7. of electronic submission of responses to When proposed in 1989, the minimize the burden of the collection of II. Discussion of the Final Rule information collection requirements in information on respondents. Likewise, A. General Discussion the diesel equipment regulations were one of the major objectives of Executive calculated under PRA 80. The final rule Order No. 12866 is to make the Recordkeeping Requirements in the calculations are done in compliance regulatory process more accessible and Final Rule with the Paperwork Reduction Act of open to the public as a means to reduce Recordkeeping requirements in the 1995 (PRA 95). Generally, changes in the duplication of information between final rule are found in §§ 7.83 and 7.97, the final rule burden hour and cost agencies. Elsewhere in this preamble, Application requirements; §§ 7.90 and estimates from the proposed MSHA announces the electronic 7.105, Approval marking; §§ 7.108, requirements result from the revision availability of its rulemaking documents Power package checklist; § 75.363, necessitated by PRA 95. When the with access instructions. The mining Hazardous condition; posting, change represents a regulatory change, it community and other interested parties correcting and recording; § 75.371 (r), is so noted in the discussion of the are encouraged to access on-line (kk), (ll), (mm), (nn), (oo), and (pp), appropriate section within the material as needed. Mine ventilation plan, contents; preamble. For details on the calculation § 75.1901(a), Diesel fuel requirements; of paperwork hours and costs see ‘‘VII, B. Section-by-Section Discussion § 75.1904(b)(4)(i), Underground diesel Paperwork Reduction Act of 1995’’ in The following section-by-section fuel tanks and safety cans; § 75.1911(i) the Regulatory Impact Analysis, which portion of the preamble discusses each and (j), Fire suppression systems for may be accessed electronically or may provision affected. The text of the final Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55415 rule is included at the end of the • Current safety requirements proposed rule, the final rule requires document. including those that are applicable to that all diesel engines used in electric equipment should apply to underground coal mines be approved. General Discussion of Diesel Equipment diesel equipment as appropriate. Part 7 was originally promulgated in Approvals and Safety Requirements • Only approved diesel engines 1988 to establish application procedures One of the three major areas should be used in underground and requirements for MSHA approval of addressed by the Diesel Advisory equipment and the approval certain products for use in underground Committee was the approval of diesel- requirements should include mines, with testing conducted by the powered equipment. Historically, measurements of exhaust gas pollutants applicant or a third party. Traditionally, MSHA and its predecessor agencies and determination of a nameplate MSHA’s role in approving products for have approved equipment intended for airflow quantity. Measurement of safety emphasized testing by the use in areas of mines where methane particulate generation should also be Agency. Under part 7, testing is and other substances pose the danger of included in the engine approval performed by the applicant or by a third a fire or explosion. Through the process. party selected by the applicant, with approval process, equipment is In the proposed rule, MSHA outlined MSHA maintaining the right to observe evaluated against technical three new subparts for existing part 7, product testing. This approach has requirements which, when met, will which set approval requirements for permitted MSHA to focus on its product render the equipment safe for its diesel engines and power packages to be audit function and keep pace with intended use in the mine environment. used in underground coal mines. The technological improvements in mining In part as a result of this process, the Agency also gave notice of its intention products. approved equipment used in mines in to develop approval requirements for As originally promulgated, part 7 the United States is recognized as fully assembled diesel-powered applied to only two types of products: among the safest in the world. machines under a proposed subpart H brattice cloth and ventilation tubing The Advisory Committee for permissible equipment and subpart under subpart B, and battery assemblies recommended that diesel-powered I for large outby equipment. under subpart C. Subsequently, three equipment for use in underground Requirements for a limited class of light- additional subparts were developed mines be subject to MSHA approval in duty equipment and stationary covering multiple-shot blasting units; much the same way that electrical unattended equipment were proposed electric motor assemblies; and electric equipment has been regulated. Under in part 75. A special class of equipment cables, signaling cables, and cable splice existing standards, electrical equipment consisting of ambulances and fire kits. As designed, part 7 expedites the operated in the area of extraction and in fighting equipment was proposed that approval process, while providing could be used in emergency situations greater assurance that the products are return airways of underground coal as part of the mine’s evacuation plan. manufactured in accordance with safety mines and gassy metal and nonmetal The proposal also included provisions specifications. mines, where methane may accumulate, to permit fire prevention features in lieu The final rule for part 7 is organized must be approved as permissible of surface temperature controls for into two subparts—E and F. Subpart E (explosion-proof). Electrical equipment diesel locomotives. sets diesel engine performance and operated elsewhere in these mines is not Currently, MSHA approves diesel exhaust emission requirements. As more required to be permissible, but is subject equipment under 30 CFR Part 36 for use fully discussed elsewhere in the to certain safety requirements to protect in ‘‘gassy noncoal mines’’. In preamble, subpart E creates two classes against fire, shock, and other hazards of underground coal mines, ventilation of engine approvals—one for Category A operation. The Advisory Committee plans specify the use of diesel-powered engines and one for Category B engines. further recommended: • equipment approved as permissible Engines intended for use where Only diesel-powered equipment under part 36 in areas where permissible electric equipment is currently considered permissible should permissible electric equipment is required in underground coal mines be permitted to continue to operate in required. In addition to the equipment must have a Category A approval; areas of coal mines where permissible approval under part 36, MSHA engines for use elsewhere in electrical equipment is required. regulations address the approval of underground coal mines must meet the • Separate specifications should be diesel mine locomotives in 30 CFR Part requirements for Category B engines. developed for diesel-powered 31, and of mobile diesel-powered Subpart F of the final rule sets equipment used in areas where equipment for noncoal mines in 30 CFR standards for safe design of diesel permissible equipment is required and Part 32. The proposal suggested that engines with respect to both fire and elsewhere. parts 31, 32, and 36 could be revised or explosion hazards. The final rule • An approval program for diesel- revoked, and solicited comment. Some establishes requirements for approval of powered equipment and portable, commenters favored retaining all of the diesel ‘‘power packages’’ on engines attended equipment should be existing diesel approval regulations intended to be used where electric established. This program should since they still could have some equipment is required to be permissible identify those equipment design application for equipment used in metal under existing standards. The term features most readily addressed by the and nonmetal mines. Commenters ‘‘power packages’’ refers to an approved equipment manufacturers. generally agreed that the proposed rules engine and those components added to • A time schedule should be for part 7 should supersede any the engine, such as flame arresters, developed to allow for conversion of applicability these existing approval which prevent the ignition of methane, outby equipment presently in use regulations have for diesel engines used and surface temperature controls, which through retrofits, replacement, or in underground coal mines. prevent the ignition of accumulations of additional interim safety features to The final rule for part 7 governs the combustible materials and combustible meet the applicable new requirements. approval of diesel engines intended for liquids. Permissible equipment is • Equipment newly introduced use in underground coal mines. As designed to be explosion-proof. underground after a fixed date should recommended by the Advisory Subpart G of the proposed rule would meet the new standards. Committee and as set forth in the have established requirements for diesel 55416 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations power packages intended for use in H would have established requirements under part 36 will continue to be areas of underground coal mines where for the approval of fully assembled recognized for use in metal and permissible electrical equipment is not permissible diesel-powered equipment, nonmetal mines where permissible required. As this equipment is not and subpart I would have established equipment is required. designed to be operated in a potentially approval requirements for fully These changes are responsive to explosive methane environment, the assembled nonpermissible diesel- commenters who recommended that proposed rule would not have required powered equipment. These sections part 36 continue to be utilized for these power packages to have explosion- would have included machine features approving diesel-powered equipment. proof features. However, these diesel currently required by part 36 for The final rule revisions to part 36 also engines do present fire hazards which permissible equipment and similar retain, as recommended by commenters, must be controlled. Under the proposal, features, described above, for ‘‘limited a distinction between approval subpart G would have set standards for class’’ equipment. These subparts would requirements for equipment used in coal surface temperatures, exhaust cooling, have required the incorporation of mines and approval requirements for and safety system controls. As discussed appropriate power packages as metal and nonmetal mining equipment. more fully below, the final rule does not described in proposed subparts F and G. The final rule revokes parts 31 and 32. retain subpart G, but addresses these In the advance notice of proposed MSHA previously identified these hazards through new requirements in rulemaking, which accompanied the regulations for elimination in its part 75. proposed rule, MSHA requested response to the President’s March 4, The proposed rule, responding to a comments on this regulatory approach. 1995, Regulatory Reform Initiative. Parts recommendation of the Advisory Commenters objected to a formal 31 and 32 are outdated and, with the Committee, also established a category approval program for nonpermissible final rule changes to parts 7 and 36, are of ‘‘limited class of light-duty diesel- equipment, but supported the obsolete. Only nine approvals have been powered equipment.’’ This category incorporation of machine safety features issued under part 31 since its inception, included machines with light-duty in the use requirements specified in part and none have been issued since 1977. cycles, such as pickup trucks and 75. Commenters also supported the No other MSHA standards require part personnel carriers. This equipment, need for continuing the approval 31-approved equipment, and diesel while light-duty as compared to program for permissible equipment. mine locomotive manufacturers have production equipment, can, In response to these comments, the submitted approval applications under nevertheless, present a fire hazard. For final rule retains part 36 as the basis for part 36 for locomotives intended to be this ‘‘limited class’’ of diesel-powered the approval program for permissible used where permissible equipment is equipment, instead of requiring surface diesel-powered equipment and adopts required. With the revocation of part 31, temperature controls, the proposal set the machine safety features specified for diesel mine locomotive manufacturers standards for fire prevention features the limited class of light-duty may continue to acquire equipment that would prevent fuel, hydraulic fluid, equipment in the proposal for all approvals under part 36. and lubricants from coming into contact nonpermissible equipment. Subparts H The part 32 approval requirements for with hot engine surfaces. Features such and I are not further developed. Instead, mobile diesel-powered equipment used as special fuel system protection, fire the final rule adopts the fire prevention in noncoal mines are likewise suppression systems, safe electrical features specified for limited class unnecessary. No MSHA regulation systems, and engine compartment equipment for all nonpermissible requires the use of part 32 equipment, sensors that shut down the engine in the equipment. Additionally, the final rule and no part 32 machine approval has event of overheating were specified in enhances the fire prevention features been issued since 1981. Part 32 engine the proposal for additional fire that now apply to all nonpermissible certifications have continued to be protection. Other necessary safety equipment. This approach eliminates issued by MSHA, however, and some features, such as braking systems, were the need for subpart G of the proposal state and federal agencies’ regulations also addressed by the proposal. As dealing with power packages for outby make reference to part 32. State and recommended by the Advisory equipment. federal agencies that reference part 32 Committee, these requirements were not The final rule makes certain revisions are directed to look to part 7, subpart E, made part of the approval process to part 36 to update and make these which contains engine requirements, described above, but were set forth in existing requirements more flexible. The and to §§ 75.1909 and 75.1910, which the proposal as safety standards for final rule revises part 36 to remove contain the requirements for other underground coal mines, appearing in references to ‘‘gassy noncoal mines and machine features. Together, these final 30 CFR Part 75. tunnels’’, thus making these existing standards cover the requirements The final rule retains many of the regulations applicable to equipment previously found under part 32. These provisions of the ‘‘limited class’’ intended for use in coal as well as in new sections of the final rule will concept in the proposal, but broadens metal and nonmetal mines. In addition, continue to accommodate those the scope of the equipment subject to part 36 is amended to afford equipment government agencies that reference these requirements to include all manufacturers the option of MSHA approval or certification equipment not required to be incorporating in equipment submitted regulations. permissible (outby equipment). This for approval either a part 7, subpart F Likewise, manufacturers seeking part change eliminates the need for formal power package, or engine and safety 32 engine approvals will be able to approval of outby equipment, and component systems that meet the acquire the requisite engine approval simplifies the final rule. This aspect of existing requirements of part 36. Under through the new part 7, subpart E. the final rule, and the diesel-powered the final rule, part 36-approved Existing part 32 engine approvals equipment approval requirements, are equipment with a part 7, subpart F continue to be valid. discussed in detail under the section-by- power package will be suitable for use A significant issue for the Advisory section analysis which follows. in underground coal mines where Committee and in the proposal was the In the proposed rule MSHA notified permissible electrical equipment is schedule set for compliance with the the public of its intentions to develop required. Part 36 equipment with engine new standards for diesel-powered two new approval regulations. Subpart and safety component systems certified equipment. The Advisory Committee Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55417 recommended that MSHA require diesel Advisory Committee acknowledged, of gaseous exhaust emissions and equipment newly introduced that all diesel engines in underground quantification of the engines’ particulate underground to meet the new standards coal mines should meet certain safety matter generation. The proposed rule after a certain date. The Committee and performance specifications. In its also set specifications for the equipment further recommended that MSHA set a report the Advisory Committee used and the standard laboratory test schedule for existing diesel equipment suggested that, depending on equipment conditions for determining gaseous and to meet any new requirements. location and use, different requirements particulate output for diesel engines. The proposal called for the part 7 would be appropriate for diesel engines. The proposed requirements for approval requirements to be effective 60 One commenter to the proposal measuring gaseous emissions were days after publication of the final rule. recommended that all diesel engines be derived from now-removed part 32 and The schedule for requiring in-mine use approved as permissible. existing part 36, and the proposed of diesel equipment meeting the new For underground coal mines, MSHA requirements for measuring diesel requirements was set by proposed believes that clean-burning engines are particulate were based on the § 75.1907. Under these provisions, the critically important. Unlike electrical Environmental Protection Agency’s new requirements would have been met equipment, diesel engines emit exhaust requirements published in 40 CFR Part over a schedule ranging from six months which contains toxic gases that can be 86. In addition, the proposal specified to five years after the effective date of harmful to miners. Inappropriately the engine operating parameters as well the final rule. designed engines can pollute the mine as a method to calculate the ventilation The final rule follows the approach of atmosphere excessively, elevating toxic rate and particulate index for the the proposal, setting effective dates for gases to levels that cannot be controlled engine. the new approval requirements, as well with normal ventilation practices. Engine manufacturers do not as the schedule for requiring in-mine To achieve the objective of clean- manufacture engines specifically for use of diesel-powered equipment which burning, appropriately designed engines mining. Typically, ‘‘off-road’’, heavy- meets the new requirements. In in mines, the final rule sets performance duty diesel engines are utilized in response to the comments and as a standards for all diesel engines, whether mining equipment. Over-the-road utility result of not adopting proposed subparts they are operated in the face area or vehicles and smaller general industry G, H, and I, the final rule sets a outby. equipment are also used in mines. At compliance schedule ranging from 60 The emission test requirements for the time of the proposed rule, the only days to three years after publication of Category A and B engines are the same, certification test specifications designed the final rule. In order to facilitate except that Category A engines are for engines used in mining were the implementation of the final rule, MSHA tested with methane injected into the MSHA engine certification standards in will begin accepting approval intake system. Equipment operating at now-removed part 32 and in existing applications under revised parts 7 and or near the point of coal extraction and part 36. 36 immediately. In addition, MSHA will in return air courses may encounter In the proposal, MSHA used its rules continue power package testing until concentrations of methane gas, which is in now-removed part 32 and existing the Agency determines that a liberated during mining. Testing an part 36 for the steady-state test for competitive capacity exists in the engine with methane injected in its gaseous diesel exhaust emission. The private sector. At that time, MSHA will intake simulates operation of the engine test equipment specified in the proposal discontinue power package testing and in these areas of coal mines. Operation for diesel exhaust particulate rely solely on the part 7 testing in methane atmospheres causes an measurement was modeled after the provisions. increase in exhaust emissions, which requires higher ventilation rates. transient test equipment required in 40 Subpart E Overview Under the final rule, diesel equipment CFR Part 86, subpart N. Subpart E of the final rule is new and used in areas where permissible Commenters to the proposal stated amends existing part 7. As an electrical equipment is required by that a correlation should not be made amendment to these existing existing standards incorporate fire and between MSHA’s proposed rule and regulations, the general administrative explosion prevention features provided then-current EPA testing, because the provisions of subpart A of part 7 apply by a power package. Such a power proposal used a test with specific points to the new subpart E application package must include a Category A in a ‘‘steady state’’, while EPA used a requirements. engine and components added to the ‘‘transient test.’’ Commenters also Subpart E establishes engine engine to prevent the ignition of recommended using the same test cycle performance and exhaust emission methane and accumulations of for both gaseous and particulate matter. requirements for MSHA approval of combustibles. Power packages intended In addition, commenters generally diesel engines for use in underground for use with Category A diesel engines recommended comparability of testing coal mines. As discussed elsewhere in must be approved under part 7, subpart for similar types of tests and indicated this preamble, diesel engines for use in F of the final rule. a desire to use international standards metal and nonmetal mines are approved Current safety standards require that whenever possible. under part 36. intake air courses in areas away from or The International Organization for The final rule, like the proposal, outby the mining face be maintained Standardization (ISO) has prepared creates two classes of engine free of explosive concentrations of ‘‘ISO 8178 Reciprocating Internal approvals—Category A and B—for methane. Engines used on equipment Combustion Engines—Exhaust Emission diesel engines to be used in operated in these outby areas must have Measurement’’, which includes test underground coal mines. Several a Category B approval under the final specifications for off-road diesel commenters objected to the proposed rule. Engines approved under Category engines. The ISO is a recognized approval of diesel engines for use in B are emission tested without the international standard-setting body. outby areas, noting that outby electrical injection of methane into the engine’s Equipment manufacturers, as well as equipment is not subject to approval intake system. other standard-setting bodies, make under existing standards. However, The proposed technical requirements reference to and adopt the standards other commenters stated, and the Diesel for diesel engines addressed the control developed by the ISO. 55418 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations

ISO 8178 is an international test ISO 8178 test procedures leads to better manufacturers and a testing laboratory standard for measuring off-road diesel comparability with international testing have tested diesel engines for MSHA engine emissions. It contains a detailed practices, and provides a more approval using the ISO 8178 procedure. description of the test equipment competitive posture for American With this diesel engine testing requirements and standard procedures products in foreign markets. Many off- experience and capability already for conducting a steady-state test to road engine manufacturers are already present in the marketplace, MSHA finds determine both gaseous and particulate complying with EPA and California Air no reason to provide an extended phase- emissions. The ISO 8178 procedures Resources Board (CARB) requirements, in period for the approval standards for also specify an 8-point test cycle for which include testing in accordance diesel-powered equipment, and measuring both gaseous and particulate with ISO 8178 procedures. anticipates that manufacturers and emissions. ISO 8178 does not set One commenter to the proposal third-party testing laboratories can emission limits. objected to permitting engine immediately begin testing engines under The final rule is based on the ISO manufacturers or third-party subpart E. 8178 ‘‘Reciprocating Combustion laboratories to test diesel engines for Section 7.82 Definitions. In addition Engines—Exhaust Emission conformance to approval standards, to the existing definitions in § 7.2, § 7.82 Measurement’’, part 1 test procedures questioning the objectivity of such an of the final rule sets out and clarifies the that apply to gaseous and particulate approach. MSHA experience over eight key terms which apply in subpart E. emission testing for diesel engines. This years with manufacturers and third- Commenters generally agreed with the change from the proposal is responsive party laboratory testing under existing proposed definitions, which were to commenters’ concerns about part 7 and the Agency’s program for off- derived from definitions developed for correlating the proposed rule and EPA site testing (POST) of diesel engines ISO 8178 and the Society of Automotive diesel engine tests, and simplifies the confirms that non-MSHA testing is Engineers (SAE) Recommended Practice test procedures. For example, under the performed competently and produces J177. final rule the gaseous emission tests are reliable results. In addition, MSHA will No comments were received on the reduced to 8 test points from 39 test initially witness all tests conducted by proposed definitions for ‘‘Category A points under the proposal. The manufacturers and third parties to engines’’, ‘‘Category B engines’’, particulate emission tests are also ensure continued reliability of test ‘‘corrosion-resistant material’’, ‘‘diesel reduced from 10 to 8 test points. In results. In all cases, MSHA will accept engine’’, ‘‘exhaust emission’’, ‘‘percent addition, the final rule permits the tests only results of tests performed by load’’, and ‘‘steady-state condition’’. for exhaust gaseous and particulate manufacturers or third-party These terms and their proposed emission tests to be performed laboratories which have the capability definitions are adopted in the final rule. concurrently following the same test to competently perform the required The definitions of the terms ‘‘rated cycle, rather than independently tests with properly calibrated speed’’ and ‘‘intermediate speed’’ in the following different cycles. A number of instrumentation. proposed rule have been modified in the minor changes are made in §§ 7.86, 7.87, Section 7.81 Purpose and effective final rule in response to a commenter 7.88, and 7.89 of the final rule, so that date. The part 7, subpart E approval who recommended that MSHA’s the tests performed under these sections requirements are effective November 25, definitions of these terms conform to conform to the ISO 8178 requirements. 1996. MSHA will begin accepting definitions contained in internationally Substantive changes to these sections applications under subpart E accepted standards. The definitions of are discussed in this overview and in immediately, but will complete any in- these terms in the final rule are the section-by-section discussion that house part 32 applications, or evaluate conformed to the definitions in ISO follows. such applications under the new part 7, 8178. The final rule adds one requirement subpart E, at the applicant’s choice. As The term ‘‘peak torque speed’’ in the to the ISO 8178 test procedures. Section discussed elsewhere in this preamble, proposed rule has been changed to 7.89(a)(5)(iii) requires that 1.0 percent of the requirements for the use of approved ‘‘maximum torque speed’’ in the final methane be added to the intake air for diesel engines in underground coal rule to conform with ISO 8178. Both testing Category A engines. This mines are effective in 3 years. terms convey the same meaning. addition to the ISO 8178 procedure Commenters to the proposal generally One commenter objected to the should present no technical difficulties supported the approval requirements of definition of ‘‘diesel particulate matter’’ for manufacturers or third-party subpart E for diesel-powered equipment as ‘‘any material, with the exception of laboratories. MSHA, however, will to be used in underground coal mines. water, which is collected on a filter provide technical assistance for setting Several commenters suggested, passed by an air diluted exhaust up this aspect of the test procedure however, that a phase-in period, up to stream.’’ According to this commenter upon request. The final rule also three years, be established. According to the proposed definition was vague and requires a test to determine the these commenters, manufacturers would too dependent on the filter used and maximum fuel-to-air ratio, and specifies use the phase-in period to gain method of sampling. The final rule does requirements for determining the experience with the new test not include the proposed definition, gaseous ventilation rate and particulate procedures, become familiar with new adopting instead the definition for index for diesel engines. engine approval application procedures, diesel particulates contained in ISO Basing the final rule on an and re-evaluate their existing approvals. 8178. The ISO definition is more international consensus standard The final rule does not incorporate a specific, providing that diesel enables diesel engine manufacturers to phase-in period for diesel engine particulates are ‘‘any material collected test with a single set of procedures approvals. Diesel engine manufacturers on a specified filter media after diluting common to both the United States and and third-party testing facilities are diesel exhaust gases with clean filtered foreign markets. Also, existing test familiar with the ISO 8178 test air at a temperature less than or equal facilities established to perform tests to procedures on which the final rule is to 325 K (52° C) as measured at a point these international standards can be based, and have the capability to immediately upstream of the primary used to perform the tests prescribed by perform these tests in their laboratories filter. This is primarily carbon, this final rule. In addition, use of the with minor changes. In fact, two engine condensed hydrocarbons, and sulphates Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55419 and associated water.’’ In addition, the Approved diesel engines must be with these regulations, which address filter and sampling methods, which are manufactured in accordance with the fuel injection adjustments and fuel-to- well detailed in ISO 8178, are included specifications contained in the approval air ratios, produces engines that operate in the final rule. The objective of this and, once put into service, approved without excessive gaseous emissions definition is to facilitate accurate, engines must be maintained and that can be harmful to miners. repeatable tests for the diesel particulate operated within the parameters set in One commenter to the proposal matter in an engine’s exhaust. Other the MSHA approval. suggested that the fuel injection system definitions may be more appropriate for In general, commenters concurred on approved diesel engines be required addressing health effects. with the proposed application to be fixed and sealed so that it could The same commenter also objected to requirements. One commenter suggested not be changed. According to the the proposed definition of ‘‘total oxides that a description of the design features commenter, sealing the system would of nitrogen’’ as focusing only on nitric which promote efficiency and control prevent unauthorized changes. oxide and nitrogen dioxide. The over production of toxic emissions The final rule does not adopt this commenter suggested revisions to these specifically include fuel injection suggested change, as adjustments to definitions and offered definitions for timing. MSHA agrees that specifications diesel engine fuel injection systems are several other terms used in the proposed for the fuel injection system of diesel necessary for maintenance and to rule, including ‘‘gaseous ventilation’’, engines and the fuel injection timing are compensate for altitude. Adjustments ‘‘particulate index’’, ‘‘threshold limit key in controlling exhaust emissions. such as these permit the fuel-to-air ratio value’’, ‘‘permissible exposure limit’’ The proposal included a requirement for diesel engines to be maintained at a and ‘‘recommended exposure limit.’’ that the fuel injection system be detailed level which minimizes exhaust According to the commenter, these in approval applications. However, a emissions. terms were not used consistently in the requirement specifying the fuel The final rule does, however, adopt proposal. The final rule does not adopt injection timing was not included in the the proposed security requirements to these suggested changes. Many of these proposed rule. prevent unauthorized fuel injection terms have accepted meanings that are The final rule adopts the proposed system adjustments. Fuel injection well known. However, changes requirement for a description of the fuel system adjustments are required to be throughout the final rule have been injection system, and adopts in changeable only after breaking a seal, or made to be sure the terms are used paragraph (b)(6) the suggestion that fuel by altering the injection system’s design. consistently and appropriately. injection timing also be specified. This For example, a shim may be added or The proposed definition of rated information had been required in now- removed to change the fuel pump’s horsepower is revised in the final rule removed part 32 and is required for part performance. These parts are supplied to conform with current procedures for 36 engine approvals and to help ensure by engine manufacturers and must be evaluating engines under existing part accurate measurement of the engine’s used in accordance with the engine’s 36. This change will help define an emissions during the tests and proper approval. For engines with electronic engine’s power output as it is related to maintenance of the engine’s fuel fuel injectors, specialized computer performance testing. A definition for the injection timing. interface equipment is used to adjust the term ‘‘operational range’’ is added to Although the Agency allows computer programming sequence. The also conform with current procedures electronic record storage in other areas programming sequence must be for evaluating engines under existing of this regulation, electronic computer installed by the engine manufacturer part 36. submission of part 7 approval and is listed with the engine approval Section 7.83 Application applications is not yet available. documentation. After adjustments are requirements. The proposed application MSHA’s Approval and Certification made in a fuel injection system, any seal requirements were derived from now- Center is developing a means for removed must be replaced. Failure to removed part 32 and existing part 36 computer submission, and at present follow these procedures for adjusting a and are largely unchanged in the final has pilot programs to facilitate the use fuel injection system would result in the rule. The application procedures are of electronic reporting. However, the engine no longer being in approved designed to provide sufficient system is in the formative stage and is condition. Under § 75.1914(a) of the information to demonstrate compliance not yet available for public use. final rule, diesel engines used in with the technical requirements of The paperwork hours in the approval underground coal mines are required to subpart E, and form the basis for application, including test be maintained in approved condition. approval of diesel engines. requirements, are assigned OMB control Consistent with a recommendation of The final rule adopts the proposal to number 1219–0100. the Diesel Advisory Committee, the permit applicants to submit composite Section 7.84 Technical requirements. technical requirements for diesel drawings in lieu of individual drawings. This section of the final rule sets the engines also include undiluted exhaust This approach reduces paperwork and specific technical requirements for limits for carbon monoxide and oxides affords applicants flexibility in the Category A and Category B diesel of nitrogen, both of which have toxic preparation of their drawings. engines. The objective of this aspect of properties which can be harmful to The final rule also provides for certain the final rule is to set standards which, miners. The limits set for these gases, information to be submitted after when met, will produce clean-burning which are determined when the engine approval testing. This information diesel engines that are safe and is operated at its maximum fuel-to-air includes the ventilation rate and appropriate for use in the confined ratio, are derived from existing particulate index for the engine, and the environment of underground coal § 36.26(b) and now-removed § 32.4(f). fuel deration chart, which provides mines. As noted in the proposal, applying these guidance for how to adjust approved Like the proposal, the final rule’s exhaust gas limits to diesel engines for engines to compensate for altitude. requirements for the gaseous emissions use in outby areas is new. Like existing part 7 and other MSHA of diesel engines are based on One commenter questioned why the approval standards, the documentation appropriate sections of existing part 36 proposal set the same undiluted exhaust formulated in the application process approval regulations for diesel engines. gas limits for Category A and B engines, forms the basis for MSHA’s approval. Experience confirms that compliance except that the carbon monoxide limit 55420 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations was 0.30 percent for Category A engines, The exposure levels adopted by the levels in the final rule conform with any while the carbon monoxide limit for final rule for purposes of calculating the levels that may ultimately be updated. Category B engines was set at 0.25 ventilation rate for an engine will lead Specifically, if any of the levels for any percent. This aspect of the proposal, to lower required air quantities for of these contaminants are revised as part which is adopted without change in the ventilating subpart E-approved engines, of MSHA’s Air Quality rulemaking, final rule, recognizes a difference in the as compared to engines approved under MSHA intends to conform the levels in test procedure between Category A and now-superseded part 36. This is because this section to any revised levels. B engines. As noted above, Category A engines previously approved under part The proposed requirement for fuel engines must be designed to operate 36 were required to dilute oxides of deration received no comments. The safely in face areas and return air nitrogen and carbon dioxide to levels purpose of this requirement, which is courses where methane may be present. lower than currently specified by the adopted without change from the Thus, Category A engine testing is threshold limit values (TLV’s) in proposal, is to ensure that the fuel-to-air performed with 1.0 percent methane § 75.322. The ventilation rates set for ratio does not increase due to the lower injected into the intake air. The methane engines under the final rule will be density of air at higher altitudes. Not acts as additional fuel in the engine, more precisely related to current correcting the maximum fuel delivery which affects the fuel-to-air ratio. This exposure standards. In addition, on the engine for higher altitude change in fuel-to-air ratio increases § 75.325(g) of the final rule revises the operation results in increased emission emission levels, especially carbon percentage of the approval plate air levels. The fuel injection rate monoxide and oxides of nitrogen. Thus, quantity that is required when multiple established during the approval may be the final rule technical requirements units of diesel equipment operate in the required to be reduced when the engine permit a slightly elevated carbon same air current. Finally, as discussed is used at a higher altitude. monoxide level for Category A engines elsewhere, the final rule is designed to Implementing a recommendation of during testing so as to avoid imposing produce an integrated system of controls the Diesel Advisory Committee, the an unnecessarily strict test requirement to protect miners from overexposure to proposed rule also called for a for this class of diesel engines. The harmful diesel emissions. particulate index to be set for approved ventilating air requirement, however, is Commenters generally accepted the diesel engines. The particulate index based on the actual emissions measured value and purpose of setting a specifies the quantity of air needed to during testing. ventilation rate for each diesel engine dilute the particulate generated by the model. Knowledge of the ventilation engine to 1 milligram of diesel The final rule also defines procedures rate needed to control gaseous particulate matter per cubic meter of air. to establish the ventilating air quantities emissions to safe levels will allow The control of particulate matter in necessary to maintain the gaseous comparison of the efficiency and diesel engine exhaust was a significant emissions of diesel engines within ventilation demands of different engine issue for the Advisory Committee. The existing required ambient limits. models, and facilitate evaluation of their Committee concluded that whole diesel Emissions from both Category A and general ventilation needs during use. exhaust represents a probable risk for Category B engines are diluted to the One commenter, however, urged that causing human lung cancer, and same ambient levels when their the gaseous ventilation rate for control recommended that MSHA develop a ventilating air requirements are of diesel engine exhaust gases not be regulatory scheme to monitor and calculated. Like the proposal and part of the approval process. According control diesel particulate underground. consistent with the recommendations of to this commenter, existing ventilation The Committee did not recommend an the Diesel Advisory Committee, the and air quality standards are adequate. exposure level, but did urge that final rule addresses this issue by The final rule adopts the requirements consideration be given to what level of requiring that a ventilation rate be set for determining the ventilation rate exposure to diesel particulate presents a for each engine model. Under the final necessary to dilute diesel engine health risk to miners. MSHA is rule, this ventilation rate must appear exhaust contaminants. Ventilation currently developing regulations, on the engine’s approval plate. The systems provide different quantities of separate from this rule, to address this ventilation rate, calculated under § 7.88 air at different locations in the mine. issue. of the final rule, indicates the amount of Knowing the ventilating air quantities The Diesel Advisory Committee also air necessary to dilute carbon dioxide, needed for diesel-powered equipment recommended that a particulate index carbon monoxide, nitric oxide, and will allow the mine operator to make be set for engines so that the mining nitrogen dioxide to within allowable informed decisions about equipment industry and MSHA could compare the levels. For consistency, the levels selection and utilization and mine particulate levels generated by different specified in the final rule are those set ventilation. engines in terms of a ventilating air by existing § 75.322. These exposure Other commenters, who quantity. For example, if the particulate standards are based on the 1972 acknowledged the purpose of indices for diesel engines of the same threshold limit values set by the establishing ventilation rates for horsepower were established as 7,500 American Conference of Governmental approved diesel engines, recommended cubic feet of air per minute (cfm) and Industrial Hygienists (ACGIH) and have for the sake of clarity that the levels set 12,000 cfm respectively, an equipment applied to underground coal mines for for the gases be specified in the final manufacturer, mine operator, and nearly 25 years. This aspect of the final rule. In the proposal, MSHA had set MSHA personnel could use this rule comports with the recommendation these levels by reference to the time information, along with consideration of of the Diesel Advisory Committee that weighted average (TWA) concentrations the type of machine the engines would gaseous diesel exhaust components not for the gases. The final rule adopts this power and the area of the mine in which be treated differently from contaminants suggestion and the levels for carbon it would be used, to make certain generated by other mining sources. The dioxide, carbon monoxide, nitric oxide decisions. For example, a mine operator final rule does not adopt updated and nitrogen dioxide are specified in the could use this information when exposure standards at this time because final rule. The levels in the final rule are choosing an engine to roughly estimate this issue remains in the rulemaking identical to the levels in existing an engine’s contribution of diesel process for Air Quality standards. § 75.322, and MSHA intends that the particulate to the mine’s total respirable Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55421 dust. MSHA would use this information importance to proper operation of the internationally accepted test when evaluating mine dust control equipment, must be inspected or tested procedures. The adoption of the ISO plans. Equipment manufacturers can on each unit manufactured. The 8178–1 provisions eliminates this issue use the particulate index to design and proposal called for inspecting or testing and is responsive to commenters’ install exhaust after-treatments. each diesel engine to verify that the fuel concerns. The final rule retains the proposed rate is set to altitude, and the fuel Like the proposal, the final rule also requirement for a particulate index to be injection pump adjustment is sealed, if sets specifications for the fuel to be used set for approved diesel engines. Unlike applicable. No comments were received during testing of diesel engines. The the ventilation rate set for each engine, on this aspect of the proposal, and the proposed rule would have required No. the particulate index value will not final rule adopts the proposal without 2D diesel fuel with certain properties. A appear on the engine’s approval plate. substantive change. Instead of requiring uniform test fuel is important to The particulate index, calculated under the fuel rate to be set to altitude, the obtaining repeatable test results and test § 7.89 of the final rule, indicates what final rule specifies that the fuel rate be data that can be compared. Commenters air quantity is necessary to dilute the properly set. did not direct their attention to this diesel particulate in the engine exhaust As discussed elsewhere in this aspect of the proposal, except that they to 1 milligram of diesel particulate preamble, the rate of fuel delivery to a generally encouraged adoption of matter per cubic meter of air. This diesel engine significantly affects its international standards to the extent information will be available to the gaseous and particulate emission. As possible. mining industry from the engine noted earlier, correct adjustment of the The final rule revises the proposed manufacturer and MSHA. fuel injection pump is essential to the requirements for diesel engine test fuel Some commenters to the proposal efficient operation of diesel engines. to conform with the fuel requirements objected to the use of a particulate index Inspecting or testing the proposed in § 75.1901. Section 75.1901 of the to establish required ventilation air critical characteristics for diesel engines final rule specifies the use of diesel fuel quantities for diesel engines. These approved under part 7, subpart E containing no more than 0.05 percent commenters noted that a diesel reasonably ensures that the performance sulfur. Under this section, diesel fuel particulate permissible exposure level and emission characteristics of used for engine testing must also be low has not yet been set and maintained that production engines will be equivalent to in sulfur content. In addition, the suitable monitoring technology is not those of the engine tested for approval. properties specified for test fuel available for widespread field use. As a result, miners are protected against conform with the test fuel EPA requires These commenters also urged that harmful exposure to diesel emissions. for testing diesel engines that use low control of diesel particulate in No comments were received on this sulfur fuel. Thus, the final rule will not underground mines be accomplished aspect of the proposal, which is adopted require testing laboratories to acquire through a combination of measures, by the final rule, with the change noted special fuel to comply with the final including fuel requirements, equipment above. rule. design, and controls such as ventilation Section 7.86 Test equipment and The final rule also adopts the and equipment maintenance. The specifications. This section adopts the proposal that Category A engines, which commenters recommended that the measurement and evaluation methods are intended for operation in areas of particulate index not be part of the for emissions from diesel engines as mines where concentrations of methane engine ventilation rate, and concluded described in ISO 8178–1. The final rule gas could be encountered, be tested with that such an index should be viewed as describes the apparatus, or test cell, 1.0 percent of methane added to the a guideline providing useful required for testing diesel engine engine’s intake air. As noted above, this information about diesel engines. The performance, and sets the specifications addition to the ISO 8178 test procedure commenters further suggested that for operating this testing equipment to adopted by the final rule should present additional evaluation be undertaken to perform steady-state tests for both no technical difficulties for determine appropriate procedures for gaseous and particulate emissions. manufacturers or third-party setting a particulate index. The major components of a test cell laboratories. MSHA, however, will The overall approach of the final rule are a dynamometer with engine provide technical assistance for setting is to control diesel emissions in the operating controls, and gaseous and up this aspect of the test procedure underground mine environment through particulate emission measurement upon request. various established methods, including systems. This test cell is used to perform Metering in 1.0 percent of methane to those suggested by commenters. The the test required by §§ 7.87, 7.88, and the intake air of Category A engines information provided by the particulate 7.89 of the final rule. Most engine replicates a foreseeable operating index is part of the multi-level approach testing laboratories today have the condition in underground mines. In recommended by the Diesel Advisory equipment and meet the specifications addition, methane gas acts as a fuel Committee. called for by ISO 8178–1 and the final when it is aspirated into a diesel engine, As explained above, the particulate rule. increasing its output of carbon index value determined for a diesel The final rule’s test cell requirements monoxide and oxides of nitrogen. These engine is intended to provide useful are substantially the same as the emission effects need to be accounted information about diesel engines, as the proposed requirements, except that the for in determining the gaseous commenters suggested. In addition, the specifications for the testing apparatus ventilation rate for Category A engines. particulate index value does not appear and test conditions are revised to Section 7.87 Test to determine the on the equipment’s approval plate and conform with ISO 8178–1. Commenters maximum fuel-to-air ratio. As noted therefore is not considered in setting the to the proposal did not direct attention earlier, the tests prescribed by this engine’s required ventilation rate. to these requirements, but did express section are performed using the test cell Section 7.85 Critical characteristics. concern about correlating the proposed meeting the requirements of § 7.86. Critical characteristics, which are rule test requirements and Determining the maximum fuel-to-air specified for all part 7-approved Environmental Protection Agency diesel ratio for diesel engines is essential to products, are those features or engine tests, and recommended that the controlling harmful diesel engine specifications which, because of their MSHA procedures conform to emissions. Too rich a fuel and air 55422 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations mixture produces engine exhaust with commenter urged that the ventilation use in mining have been used for more elevated levels of carbon monoxide and rate not be part of the approval process, than 85 years, and are routinely relied oxides of nitrogen. while others supported the approach upon by users of mining equipment as Under this section, engines are taken in the proposed and final rules. well as state and federal inspection required to be operated at several speed/ These commenters, however, suggested authorities. torque conditions to determine the that the levels for the exhaust gases be The information required to be concentrations of carbon monoxide and stated in the final rule. The final rule displayed on diesel engine approval the oxides of nitrogen. Acceptable adopts this suggestion in § 7.84(c). plates includes the MSHA-assigned performance is achieved when the Section 7.89 Test to determine the approval number, together with the levels of these exhaust gases do not particulate index. Like the other engine engine’s model number, ventilation rate, exceed the limits set by § 7.84(b) of the tests prescribed by the final rule, the test rated power, high idle setting, and the final rule throughout the operational to determine the particulate index for an altitude above which the engine must be range of the engine. engine is required by the final rule to be derated. Including these specifications Commenters did not address the performed using the test cell required by on diesel engine approval plates gives proposed test to determine the § 7.86. As noted above, this test may be engine users convenient, immediate maximum fuel-to-air ratio for diesel performed concurrently with the test to access to information important to engines. The final rule adopts the determine an engine’s gaseous proper maintenance and operation of proposal without change. ventilation rate required by § 7.88. diesel engines. Section 7.88 Test to determine the The test required by this section Commenters directed little attention gaseous ventilation rate. The test to measures the amount of particulate in to this aspect of the proposal, which is determine the gaseous ventilation rate the engine’s exhaust when it is operated adopted without change in the final for a diesel engine is required by the at eight specified operating conditions. rule. Commenters who objected to final rule to be performed using the test For Category A engines, 1.0 percent setting a ventilation rate for diesel cell required by § 7.86. This test may be methane is added to the engine’s intake, engines as part of the approval process performed together with the test to as discussed above. repeated this concern with respect to determine the particulate index required The proposed rule would have the requirement for the ventilation rate by § 7.89. required that the particulate index be to appear on engine approval plates. As The test required by this section determined using a different set of test discussed above, setting a gaseous measures the undiluted exhaust gas points than those used to determine the ventilation rate for diesel engines concentrations of carbon monoxide, gaseous ventilation rate. The particulate comports with the recommendations of carbon dioxide, nitric oxide, and index tests were based on a cycle of 10 the Diesel Advisory Committee and nitrogen dioxide in the exhaust. These test points. In response to commenters’ provides diesel equipment users with constituent gases of diesel engine suggestions that the particulate and information important to protecting exhaust are potentially harmful to gaseous emissions tests be conducted miners. Knowledge of the rate of miners in the confined environment of using the same test cycle and ventilation needed to control the underground mines. internationally accepted test gaseous exhaust emissions of a diesel In accordance with § 7.86, exhaust gas procedures, the final rule adopts the engine facilitates comparison of the measurements must be made at 8 same ISO 8178–4, 8-point test cycle for efficiency and ventilation demands of specified points while the engine is both the particulate and gaseous different engine models. operated at each rated speed and emissions tests. The other information required by the horsepower requested by the approval The Diesel Advisory Committee final rule to appear on an engine’s applicant. For Category A engines, 1.0 observed that whole diesel exhaust approval plate likewise provides engine percent methane is added to the represents a probable risk for causing users needed data. The high idle setting engine’s intake, as discussed above. human lung cancer. While proposing no informs maintenance personnel of the Like the proposal, the final rule specific exposure level, the Diesel engine speed appropriate for conducting specifies the calculations to be Advisory Committee recommended several of the tests to be performed as performed using the results obtained control of diesel particulate in engines part of the engine’s permissibility from the test procedure. These used underground through a checklist. Together, an engine’s calculations produce a gaseous combination of measures, including approval number, model number, and ventilation rate for the diesel engine. As equipment design. its rated power and speed facilitate use discussed above, the ventilation rate Like the proposal, the final rule does of the manufacturer’s maintenance indicates the amount of ventilating air not set a particulate limit for engines. procedures. The maintenance necessary to dilute carbon monoxide, Instead, the final rule specifies the procedures, along with the altitude carbon dioxide, nitric oxide and calculations to be performed using the above which the engine must be nitrogen dioxide to within permitted results obtained from the test derated, specify the adjustments which levels. The ventilation rate for each procedures in this section. From the must be made to ensure that an engine approved Category A or B diesel engine calculations, a particulate index is continues to operate in approved will appear on the engine’s approval derived. As discussed above, the condition. plate. Knowledge of the ventilation rate particulate index for an engine does not Burden hours required to make and needed to control gaseous emissions to appear on its MSHA approval plate. mount MSHA approval plates are safe levels will allow comparison of the This information will be available, assigned OMB control number 1219– efficiency and ventilation demands of however, from MSHA and the engine 0100. different engine models, and their manufacturer. Section 7.91 Post-approval product general ventilation needs during use can Section 7.90 Approval markings. audit. This section incorporates the be evaluated. This section requires that each approved standard audit requirement for part 7- As discussed above, commenters diesel engine be identified with a approved equipment, specifying that generally accepted the value and permanent approval plate containing approval holders must make a diesel purpose of setting a ventilation rate for certain information. Approval markings engine available for audit by MSHA, at each diesel engine model. One to identify equipment appropriate for no cost to the Agency. The obligation to Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55423 supply an engine for audit under this controls, shut down systems, and the been developed which can reduce the section arises only upon request by exhaust cooling system that make a particulate matter in diesel engine MSHA, and is limited to no more diesel engine explosion-proof and exhaust. Also, catalytic converters are frequently than once a year, except for reduce the engine’s surface temperature available which can be added to engines cause. Under existing § 7.8(b), the to a safe level. Like the proposal, the to reduce the levels of some harmful approval holder may observe any tests final rule requirements for diesel power gaseous emissions. MSHA encourages conducted under the audit. packages are largely derived from the use of these devices, and under Post-approval audits are a critical part existing MSHA approval regulations in existing regulations has approved, as of MSHA’s quality control program for part 36, which apply to diesel engines safe, several power packages that utilize approved equipment. By inspecting and for use in gassy underground mines. catalytic converters and particulate testing an engine for continuing The final rule is also consistent with filters. However, under the final rule compliance with its approval current MSHA practices for coal mines MSHA will not evaluate the specifications, potential problems can using diesel-powered equipment and effectiveness of these exhaust after- be detected and confidence in the with the recommendations of the Diesel treatment devices. Exhaust after- approval process is maintained. Since Advisory Committee. The Advisory treatment devices encompass a wide the inception of post-approval product Committee specifically recommended range of concepts that have audits under part 7, MSHA has detected an approval program for diesel power demonstrated varying degrees of numerous discrepancies, which have packages. effectiveness and reliability. The been effectively corrected. Commenters generally accepted the evaluation of these types of after- Commenters directed no attention to proposal for MSHA approval of diesel treatment devices is beyond the scope of this aspect of the proposal, which is power packages, recognizing the need a part 7 approval program. adopted without change from the for diesel-powered equipment used in For the same reasons, the final rule proposal. underground coal mines to meet critical does not adopt a commenter’s Section 7.92 New technology. This specifications and to be properly tested suggestion that the particulate index for section is designed to facilitate the for safe operation in a potentially an engine be adjusted to reflect the use introduction of new technology or new explosive atmosphere. Some of a diesel particulate filter. Also, the applications of existing technology. It commenters directed their attention to particulate index for an engine is allows MSHA to approve a diesel engine the effective date of subpart F, intended to be used by manufacturers that incorporates technology for which expressing concern about the and mine operators as an aid for, among the requirements of subpart E are not availability of commercial testing other things, selecting appropriate after- applicable, provided that MSHA facilities. For the reasons discussed treatment devices such as particulate determines the engine is as safe as one below, the final rule does not adopt an filters. Therefore, under the final rule which meets the requirements of extended phase-in period. However, the particulate index for an engine will subpart E. To make this determination, accommodations are made in the final indicate the particulate contained in the MSHA develops appropriate technical rule to simplify the implementation of raw engine exhaust. requirements and test procedures when testing in the private sector, and MSHA Other aspects of the final rule will, novel designs are submitted for will continue to perform diesel power however, recognize exhaust after- approval. Experience with this package testing to subpart F treatment controls. The positive effects provision under existing regulations has specifications for up to 3 years, pending of catalytic converters in lowering levels shown that new innovations can be the development of private sector of harmful exhaust gases may be effectively evaluated and made available resources. considered under § 75.325(i) for for use in a prompt fashion, thus serving Other commenters recommended that reducing the quantity of ventilating air the best interests of miners’ safety and diesel engine exhaust after-treatment required where multiple pieces of health. devices, such as particulate filters or diesel-powered equipment are in use. Commenters supported this aspect of catalytic converters, be required as part Also, particulate filters can be effective the proposal, stressing that research and of diesel power packages. These in maintaining compliance with the technological improvements in diesel commenters also suggested that the respirable dust standard set by existing engines can be expected. The final rule ventilation rate and particulate index set § 70.100. adopts the proposal without change. under §§ 7.88 and 7.89 of the final rule During the course of this rulemaking, credit the use of such devices. the question has been raised as to Subpart F Overview The final rule responds to these whether the final rule should require Subpart F of the final rule amends comments in part. Under the MSHA that some or all diesel engines be existing part 7, which specifies testing approval program in subpart E, MSHA equipped with particulate filters. As by the approval applicant or a third will evaluate exhaust gas and noted above, MSHA encourages the use party. As an amendment to the existing particulate controls, provided these of such filters and other emission regulations, the general administrative devices are integral to the engine design controls. However, the proposed rule provisions of subpart A of part 7 apply and are part of normal production did not raise this issue and MSHA to these new subpart F application engines. The effectiveness of such received only limited comment requirements. controls will also be considered in regarding the appropriate role of diesel Subpart F establishes design and setting the engine’s ventilation rate and particulate filters. The final rule, performance requirements for MSHA particulate index. This approach will therefore, does not require the use of approval of ‘‘diesel power packages’’ for ensure that the controls are compatible these filters. However, MSHA is use in areas of underground coal mines with the engine and are effective. MSHA currently developing a proposed rule to where permissible electrical equipment has already approved, under existing address control of miners’ exposure to is required by existing safety standards. regulations, engines which incorporate diesel particulate. This rulemaking will A ‘‘diesel power package’’ is a diesel techniques such as electronic fuel afford an opportunity to fully develop engine, together with the attached safety injection systems. Exhaust after- this issue. components, such as flame arresters, treatment devices that are not part of an Other commenters suggested that spark arresters, surface temperature engine’s design and production have diesel engine cooling system 55424 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations components, such as radiators, not be power package components can be bolts, screws, or studs. The term ‘‘high included as part of the approval of performed using currently available idle speed/no load’’ has been revised to diesel power packages so as to permit hand pump devices. Likewise, ‘‘high idle speed.’’ This is another non- changes in cooling system components explosion-proof testing can be substantive change, since ‘‘no load’’ is to be made in the field without affecting performed in inexpensive test chambers specified in the definition of the term. the engine’s approval. The final rule of relatively simple design. New definitions for ‘‘dry exhaust does not adopt this suggestion. The Nonetheless, MSHA recognizes that conditioner’’ and ‘‘wet exhaust inter-relationship of the components in some testing capabilities are not conditioner’’ are added to the final rule the cooling system of a diesel engine is immediately available in the private to more clearly differentiate between the critically important to controlling power sector, such as surface temperature requirements for these systems. Under package surface temperatures, which, testing and exhaust gas cooling the final rule, a dry exhaust conditioner when elevated, can lead to a fire. efficiency testing with methane gas is defined as a device which cools Consequently, the engine cooling injection in the intake air. To facilitate exhaust gases without direct contact system components must be considered the approval of power packages and with water, such as a heat exchanger. A an integral part of a diesel power accommodate the needs of applicants, wet exhaust conditioner is defined as a package. This aspect of the final rule MSHA may be consulted for simple system which cools exhaust gases does not prohibit field radiator changes, alternative procedures which can be through direct contact with water. provided that the inter-relationship of used to provide the same results. In Minor changes to the definitions for the engine’s cooling system components addition, MSHA will perform the tests ‘‘step (rabbet) joint’’ and ‘‘threaded is maintained in approved condition. required by subpart F for diesel power joint’’ have been made for the sake of A number of minor changes are made package approval at its Approval and clarity. The terms ‘‘corrosion-resistant in §§ 7.97, 7.98, 7.100, 7.101, 7.102, and Certification Center upon request by material,’’ ‘‘idle speed/no load,’’ and 7.103 of the final rule to clarify the applicants. MSHA anticipates providing ‘‘rated speed’’ and their definitions are requirements of these sections. these test services, for the fees set in deleted from subpart F. These terms are Substantive changes to these sections accordance with 30 CFR Part 5, for up common to both subparts E and F, and are discussed in the section-by-section to 3 years, or until private sector testing have already been defined in subpart E. discussion which follows. capability is available. MSHA reserves Section 7.96 has been modified to Section 7.95 Purpose and effective the right to determine when competent incorporate the definitions of subpart E, date. The final rule’s part 7, subpart F private sector testing capability is § 7.82. approval requirements apply to diesel available and to discontinue MSHA Section 7.97 Application power packages intended for equipment testing. requirements. This section is derived used in areas of underground coal mines Section 7.96 Definitions. In addition from existing part 36 and requires that where this equipment is required to be to the existing definitions in §§ 7.2 and an application for approval of a diesel permissible. The design, performance 7.82, this section of the final rule sets power package contain sufficient and testing requirements of this section out and clarifies the key terms used in information to document compliance are effective November 25, 1996. MSHA subpart F. with the technical requirements of the will begin accepting applications under Commenters did not direct specific final rule. The list of information new subpart F immediately. To attention to this aspect of the proposal. specified for inclusion in the approval accommodate all interests, the Agency The final rule adopts the proposed application, which is revised from the also will complete any in-house part 36 definitions, with five exceptions, adds proposal in response to commenters and safety component certification two terms and definitions, and deletes to fully identify the engine and the fan applications, or evaluate such three definitions from the proposal blade material, is intended to help applications under new subpart F, at the which now appear in subpart E. These applicants supply the data necessary for applicant’s choice. As noted elsewhere changes are intended to add flexibility a prompt evaluation. The final rule in this preamble, the requirements for to the final rule and respond to permits applicants to submit composite approved diesel power packages in confusion among some commenters drawings. This approach reduces equipment used in underground coal with respect to the substantive paperwork, affords applicants flexibility mines become effective in 3 years. requirements of subpart F. in the preparations of their drawings, As noted above, several commenters The definition for ‘‘exhaust and has proven to be effective in other urged that an extended phase-in period conditioner’’ has been revised to remove MSHA approval programs. of several years be included in the final the words ‘‘corrosion-resistant.’’ The Like existing part 7 and other MSHA rule. According to the commenters, a requirement for the exhaust conditioner approval standards, the documentation phase-in period is needed to allow for to be made of corrosion-resistant formulated in the application process the development of competent third- material is adopted from the proposal in under § 7.97 forms the basis for MSHA’s party testing facilities, particularly with § 7.98(s)(4)(i). The definitions for approval of a diesel power package. respect to explosion-proof testing. Other ‘‘exhaust system’’ and ‘‘intake system’’ Approved diesel power packages must commenters suggested that subpart F be are revised to include the phrase ‘‘but is be manufactured in accordance with the made effective immediately, so as to not limited to’’, to recognize the use of specifications contained in the approval accelerate conformance to the new components not otherwise mentioned in and, once put into service, approved requirements for the benefit of miners’ the definitions for these terms. The term power packages must be maintained and safety. ‘‘explosive mixture’’ has been changed operated within the parameters set in A number of the final rule’s test to ‘‘flammable mixture’’ to conform with the MSHA approval. requirements can be performed part 36, and the definition for this term The paperwork hours in the approval effectively with inexpensive, simple test has been modified with the non- application, including test equipment or facilities, or with the substantive change of removing the requirements, are assigned OMB control power package installed in the mining word ‘‘violently.’’ The definition for number 1219–0100. equipment. For example, the static ‘‘fastening’’ has been modified for the Section 7.98 Technical pressure test required by § 7.104 to sake of clarity to remove the words requirements. This section of the final evaluate the structural integrity of ‘‘device such as’’ when referring to rule sets specific technical requirements Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55425 for diesel power packages. Diesel power part 36 regulations from which this instances more precise language is packages are intended for use with proposal was derived. adopted to differentiate between Category A engines so that they can be The final rule is intended to serve as requirements for wet and dry exhaust operated safely and not create a fire or a flexible set of regulations that will conditioner systems. Proposed § 7.98(d) explosion hazard. Consistent with the continue to be workable over a period has been revised in the final rule to refer Advisory Committee’s recommendation of years. Throughout the final rule to ‘‘nonmetallic rotating parts’’ instead that permissible diesel equipment be MSHA has adopted the more current of ‘‘fans’’, to conform with other MSHA required in areas of underground coal practices and, where appropriate, regulations. Paragraph (p)(2)(ix) has mines where permissible electric provides that alternatives may be been revised to require that the equipment is required, the final rule’s developed which are safe and effective. minimum thread engagement of technical specifications introduce many With this in mind, the final rule does fastenings must meet the requirements of the safety features currently required not expressly prohibit the use of electric of the explosion tests in § 7.104. This is for permissible electric-powered starting devices for diesel engines, a correction. This change conforms to equipment. adopting the proposal to permit MSHA paragraph (p)(2)(viii), which requires Like the proposal, the final rule is to evaluate other starting mechanisms. both tests for acceptance of a minimum derived largely from existing technical Such alternatives are subject to thread engagement of fastenings less requirements in part 36 for diesel- evaluation under § 7.107 and must be than 3⁄8 inch. In addition, paragraph powered equipment intended for use in found by MSHA to be as safe as the (q)(7) of the final rule does not retain the gassy non-coal mines. The final rule pneumatic and hydraulic starting proposed requirement that a ‘‘minimum also addresses the hazard of mechanisms presently in use. of four fastenings’’ be used for combustible coal dust by specifying a Some commenters asked for explosion-proof joints. MSHA’s maximum surface temperature of 302 °F clarification of proposed paragraph (i) experience shows that flange designs (150 °C). This is the same technical with respect to the safety shutdown with fewer than four fastenings have requirement applied to permissible system required for diesel power proven to be effective. Paragraph (r)(5) electric-powered equipment. Other packages. The safety shutdown system has been revised to note that the aspects of the final rule set is required to automatically shut off the opening for connection of a gage to specifications necessary to control fuel supply and stop the engine in measure the intake vacuum must be engine surface temperatures, sparking, response to certain dangerous engine closed by a plug or other suitable device and the passage of flame from the conditions. MSHA intended in the that is sealed or locked in place except exhaust system or components to the proposal, and the final rule clarifies, when in use. This language conforms to external atmosphere. Any of these that the shutdown system must respond the language of part 36, and closing of conditions could ignite an explosion or to both high exhaust temperature and this opening is necessary to perform fire in the underground coal mine low water level in the engine’s exhaust certain tests in this subpart. Paragraph environment. conditioner. Either of these conditions (s)(1) has been revised to require that Commenters generally accepted the can rapidly lead to a fire or explosion the flame arrester prevent the discharge proposed technical requirements, hazard. of glowing particles, conforming it to which, as noted above, are based on In addition, the final rule has been the requirement in part 36. Finally, long-standing regulations which have revised from the proposal to cover other paragraph (s)(5) has been revised to note been proven effective and workable. safety system shutdowns that may be that the opening for connection of a gage Commenters did, however, raise several installed by the applicant. Section to measure the backpressure must be issues. 75.342 requires methane monitors on closed by a plug or other suitable device Some commenters sought wider some permissible equipment, and the that is sealed or locked in place except tolerances for explosion-proof final rule requires permissible when in use. This language also enclosures in diesel power packages, equipment to be provided with a fire conforms to part 36, and is needed to citing experience in the United States suppression system meeting the perform some of the tests under this and Europe. These commenters directed requirements of § 75.1911. Both of these subpart. their attention to the proposed standards specify that the diesel engine Section 7.99 Critical characteristics. specifications for joints in engine must shut down when either an Critical characteristics, which are exhaust systems, and suggested that elevated level of methane is specified for all part 7-approved MSHA review the proposed encountered or when the fire products, are those features or specification of 0.004 inches for suppression system is actuated. This specifications which, because of their maximum clearance for joints all in one requirement will most likely be satisfied importance to proper operation of the plane. by a connection to the safety shutdown equipment, must be inspected or tested The final rule retains this system. The technical requirements of on each unit manufactured. The specification, which has proven to be this rule now cover these additional proposal focused on power package effective for decades. Commenters sensors. features essential to preventing fires and offered no basis for the recommendation Another commenter suggested that explosions in the underground coal for a wider tolerance. the safety shutdown system include mine environment, such as flame- Other commenters suggested that automatic brake lock-up to prevent arresting path clearances and the electric starting devices for diesel diesel-powered equipment from rolling. explosion-proof integrity of the power engines be prohibited. The proposed This aspect of a machine’s safety is package. Commenters did not direct rule recognized the conventional use of evaluated under the existing their attention to this aspect of the hydraulic, pneumatic or other requirements of part 36 and is not part proposal, which is adopted without mechanically actuated starting of a diesel power-package approval. change in the final rule. mechanisms, but also retained the Thus, the final rule does not adopt this Section 7.100 Explosion tests. This flexibility to evaluate other means of suggestion. section describes the tests to be starting under § 7.107 of the rule The final rule adopts clarifying performed on diesel power packages to concerning new technology. This aspect revisions in addition to changes made in ascertain whether they are explosion- of the proposal differs from the existing response to commenters. In several proof, as specified by the technical 55426 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations requirements in § 7.98. Like the to the speeds at which dynamic tests are Commenters raised only one issue proposal, the final rule is derived from performed successfully at MSHA concerning this aspect of the proposal, existing § 36.46. Using an explosive facilities. Also some test facilities may suggesting clarification of the different mixture of natural gas and air, or not be capable of performing tests at the performance requirements for wet and methane and air, the tests prescribed by rated speed called for by the proposal. dry exhaust conditioners. The final rule the final rule determine the power This change is also reflected in adopts this suggestion. package’s integrity in the event of an paragraphs (a)(3)(iii) (A) and (B). Section 7.103 Safety system controls explosion inside the intake or exhaust For clarification, the final rule also test. This section is derived from § 36.47 system. This could be caused by an adopts more precise language to identify and describes tests to evaluate the engine backfire during starting or requirements which apply to wet performance of the safety shutdown ingestion of methane into the engine exhaust conditioners, distinguishing systems required for diesel power while it is running. The prescribed tests them from dry systems. The final rule packages. As discussed above, these determine whether flame arresters and also defines natural gas that may be systems automatically shut down a joints are capable of preventing used in explosion-proof testing in a diesel engine in response to potentially propagation of the internal explosion to manner that better recognizes the dangerous conditions, such as the surrounding atmosphere. These tests variables in the make-up of the overheating. The tests prescribed also determine the lowest water level in hydrocarbons found in natural gas. As a introduce failure modes, such as loss of the exhaust conditioner that will act result, the final rule affords greater engine coolant, and initiate the safety effectively as a flame arrester, and the flexibility for manufacturers and testing system. Acceptable performance is peak explosion pressures generated in laboratories. achieved when the safety system each segment of the intake and exhaust Section 7.101 Surface temperature automatically shuts down the engine system. Excessive pressures may be an tests. This section describes the tests before the technical requirements for indication of a design flaw. necessary to ascertain that diesel power approval are exceeded. Commenters recommended that the Commenters did not raise issues packages will not create a fire hazard in final rule more clearly delineate the regarding the proposed explosion tests. underground coal mines due to coal different requirements for wet and dry However, the final rule includes one dust or other combustible materials exhaust conditioners. The final rule change from the proposal to better contacting hot surfaces. Like the adopts this suggestion in paragraphs ensure the ability of a diesel power proposal, the final rule is derived from (a)(3), (a)(4), (b)(2), and (b)(3). package to withstand an internal § 36.48, and sets a maximum external explosion, and another change to revise Commenters also suggested that surface temperature of 302 °F (150 °C). the speeds at which dynamic tests are paragraph (a)(7)(ii) be amended to The test protocol simulates the to be conducted. The final rule also include a caveat about the surface operation of a diesel power package includes non-substantive changes for temperature of a turbocharger not under heavy use conditions. A note has clarification and to conform the final exceeding 302° F (150° C). This been added to this section to alert the rule with existing MSHA regulations. comment is not adopted because the Paragraphs (a)(2) (v) and (vi) of the applicant that this test may be done final rule addresses surface temperature final rule specify an internal peak simultaneously with the exhaust gas control under § 7.101 and requires that pressure of 110 psig instead of the cooling efficiency test described in all external surfaces of power packages, proposed 125 psig, during power § 7.102 of the final rule. including turbochargers, not exceed 302 package explosion-proof testing. Commenters did not direct their °F (150° C). Paragraph (b)(7) has been Excessive internal pressures during attention to this aspect of the proposal. revised to accept starting mechanisms explosion-proof testing indicate the The final rule is unchanged from the constructed of nonsparking materials in potential for failure of the diesel power proposal, except for a non-substantive addition to starting mechanisms that package in use, with potentially clarifying change regarding wet exhaust prevent the engagement of the starter catastrophic results in the underground conditioners and the elimination of the while the engine is running. This coal mine environment. Lowering the reference to the use of natural gas. A revision conforms to § 7.98(j)(1), which peak pressure expected during reference to natural gas, which consists permits both options under the final explosion-proof testing recognizes that primarily of methane, is redundant. rule, as it would have under the diesel power package designs differ and Instead, the final rule specifies the proposal. that it is difficult to select the optimum percentage of methane to be added to Section 7.104 Internal static location for pressure measurements. the intake. Elimination of the reference pressure test. This section describes When pressures greater than 110 psig to natural gas also conforms this section tests to determine if the design of the are measured during testing, the final to similar tests, which also determine intake and exhaust system components rule specifies redesign of the system to engine performance and which only of diesel power packages is structurally reduce the pressure or more rigorous specify methane, in subpart E of part 7. sound. The prescribed tests specify testing to verify the integrity of the Section 7.102 Exhaust gas cooling internally pressurizing each segment of system. Due to the critical nature of this efficiency test. This section describes the intake and exhaust system. The test, MSHA has adopted the same the test procedures for measuring the pressure required to be applied is four approach in its explosion-proof test temperature of the exhaust gas at the times the maximum pressure observed requirements for electric motors. The discharge point from the exhaust in the tests performed under § 7.100, or final rule conforms these like conditioner. Acceptable performance 150 psig (±5 psig), whichever is less. requirements. under this test is exhaust gases that do Acceptable performance is based on an Paragraph (a)(2)(vii) of the final rule not exceed 170 °F (76 °C) for power assessment of key points in the intake requires that dynamic tests be packages with a wet exhaust and exhaust system, such as joints and conducted at two speeds—1800±200 conditioner, and 302 °F (150 °C) for a welds, for evidence of leakage or RPM and 1000±200 RPM—instead of at dry system. The proposed and final damage. rated speed and 50 percent of rated rules are derived from existing § 36.47 Commenters raised no issues with speed specified in the proposal. The and address the hazard of hot exhaust respect to the proposal. Paragraph speeds set by the final rule correspond gases creating a fire or explosion hazard. (b)(2)(vi) has been added to limit Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55427 permanent distortion of any planar Commenters directed no attention to nonpermissible diesel-powered surface of the diesel power package to this aspect of the proposal, which is equipment be addressed in the Agency’s 0.04-inches/linear foot or less. This adopted without change from the part 75 safety standards for change conforms this requirement to the proposal. underground coal mines. Existing part same requirement applied to the Section 7.107 New technology. This 36 is retained by the final rule and explosion tests in § 7.100(b)(7). section is designed to facilitate the revised to specifically apply to Section 7.105 Approval markings. introduction of new technology or new permissible diesel-powered equipment This section requires that each approved applications of existing technology. It for use in underground coal mines. diesel power package be identified with allows MSHA to approve a diesel power Subpart H is not further developed by a permanent approval plate inscribed package that incorporates technology for the final rule. with the MSHA approval number. If the which the requirements of subpart F are In the proposal, subparts G and I were power package includes a wet exhaust not applicable, provided that MSHA developed as an approach to several of conditioner that functions as an exhaust determines the power package is as safe the Advisory Committee’s concerns. In flame arrester, the final rule requires as one which meets the requirements of its deliberations, the Advisory that the approval plate also indicate the subpart F. To make this determination, Committee considered the risk of fire on grade limitation for the power package. MSHA develops appropriate technical nonpermissible diesel-powered This information is important so that requirements and test procedures when equipment caused by hot surfaces users are aware of the maximum grade applications for the approval of novel igniting combustibles such as hydraulic on which the exhaust conditioner will designs are submitted. To provide and lubricating oils, diesel fuel, and be effective as a flame arrester. confidence in the adequacy of the coal dust. To address this hazard, the As noted elsewhere in this preamble, design, such tests may be required to be Committee recommended limiting approval markings have been used for performed by MSHA. Experience with engine surface temperatures. Under the more than 85 years, and are routinely this provision under existing regulations proposal, surface temperature controls relied upon by users of mining has shown that technological and other machine safety features for equipment as well as state and federal innovations can be effectively evaluated heavy-duty nonpermissible diesel authorities to identify equipment and made available for use in a prompt equipment would have been addressed appropriate for use in mining. fashion, thus serving the best interests in subparts G and I. Another commenter suggested of miners’ safety and health. The Committee, however, also clarification of the proposal with respect Commenters generally supported this recognized the difficulty of applying to the grade limitation for certain diesel aspect of the proposal, and the final rule such controls to all nonpermissible power packages. The final rule has been adopts the proposal without change. diesel-powered equipment, especially revised in response to this commenter to Section 7.108 Power package light-duty, utility equipment. The clarify that the grade limitation applies checklist. This section requires that Advisory Committee, therefore, to systems which use a wet exhaust approved diesel power packages be recommended that a ‘‘limited class’’ of conditioner as a flame arrester. No grade accompanied by a description of the light-duty equipment be identified for limitation is appropriate for power features which must be checked and which less complex fire prevention packages with a dry exhaust tests that must be performed to ascertain measures would be required, such as conditioner. that the power package is in approved fire suppression systems which shut Burden hours required to make and condition. These instructions, which are down the engine, guarded drive shafts mount MSHA approval plates are developed as part of the approval to prevent damage of fuel and hydraulic assigned OMB control number 1219– process, are intended to aid power lines in the event of a shaft failure, 0100. package users in keeping this equipment protection of the fuel tank and lines, Section 7.106 Post-approval product in safe operating condition. and proper design of the electrical audit. This section incorporates the Commenters did not direct specific system to prevent electrical arcs. The standard audit requirement for part 7- attention to this aspect of the proposal, proposal included these requirements approved equipment, specifying that which is adopted without change in the for a ‘‘limited class’’ of light-duty approval holders must make a diesel final rule. equipment in the part 75 safety power package available for audit by standards for underground coal mines. MSHA, at no cost to the Agency. The Part 7, Subparts G, H and I The Advisory Committee also obligation to supply a power package The final rule does not adopt examined what additional features under this section arises only upon proposed subpart G to part 7, nor further should be included in the approval request by MSHA, and is limited to no develops the advance notice of requirements for completely assembled more frequently than one a year, except rulemaking published concurrently with units of diesel-powered equipment. The for cause. Under existing § 7.8(b), the the proposal concerning subparts H and Committee recommended that MSHA approval holder may observe any tests I to part 7. Subpart G-approved power develop an approval program that conducted under the audit. packages would have been required for would emphasize other equipment Post-approval audits are a critical part nonpermissible, heavy-duty diesel- safety features which could be readily of MSHA’s quality control program for powered equipment used in addressed by equipment manufacturers. approved equipment. By inspecting and underground coal mines. Subpart H These features included safeguarding of testing a diesel power package for would have established regulations for the fuel system, an exhaust gas dilution continuing compliance with the the approval of fully assembled system, a fire suppression system, and specifications for its approval potential permissible diesel-powered machines, appropriate electrical and braking problems can be detected and and subpart I would have set systems. As a completely assembled confidence in the approval process is requirements for the approval of fully machine, the interrelationship of these maintained. Since the inception of post- assembled nonpermissible, heavy-duty systems would be evaluated as part of approval product audits under part 7, diesel-powered equipment. In lieu of the approval process contemplated in MSHA has detected numerous this approach, the final rule responds to the proposal under subpart H. discrepancies which have been the commenters who urged that safety A number of commenters objected to effectively corrected. and fire protection features for the approval of nonpermissible diesel- 55428 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations powered equipment. These commenters 75.523–3 provides a machine safety under revised part 36 specifically for maintained that such an expansion of feature by requiring automatic use in underground coal mines will be MSHA’s approval process would result emergency parking brakes. Setting such identified with an MSHA approval in regulating diesel-powered equipment performance-based requirements for number in a new sequence ‘‘36c–’’. This differently than electric-powered nonpermissible equipment maximizes will indicate that the equipment has equipment without justification, and the flexibility afforded mine operators been approved for use in underground would present severe technical and and manufacturers to minimize the coal mines. A part 36 MSHA approval economic difficulties in meeting certain hazards of this equipment, and number in the sequence ‘‘31–’’ will proposed requirements. The facilitates the introduction of new indicate that the equipment has been commenters recommended that the final technology for dealing with these approved for use in metal and nonmetal rule adhere to the long-standing hazards. For example, new heat mines. regulatory approach for electric- insulating materials have been These changes are responsive to a powered equipment, which sets developed since the publication of the number of commenters who urged that performance-oriented safety proposed rule, which can be used to the existing part 36 regulations for the requirements for nonpermissible control surface temperatures on diesel- approval of diesel-powered equipment equipment in the Agency’s part 75 powered equipment. be retained and continue to apply to safety standards for underground coal To adapt this regulatory approach to equipment for use in metal and mines. According to the commenters, nonpermissible diesel-powered nonmetal mines. In addition, the final this approach would be responsive to equipment, the final rule extends the rule expands the scope of part 36, the hazards posed by diesel-powered proposal’s safety requirements for eliminating the need for separate equipment, and provide sufficient limited class equipment. Under the final approval regulations for diesel-powered flexibility to facilitate the introduction rule, nonpermissible diesel-powered equipment for use in underground coal of new and safer technology. equipment is not required to be mines as contemplated by subpart H in In contrast, one commenter urged that approved by MSHA. Instead, this the proposal. all diesel-powered equipment be equipment must comply with the final To retain part 36 and include the approved as permissible, without regard rule’s safety requirements in §§ 75.1909 approval of diesel-powered equipment to the equipment’s use in the mine. This and 75.1910. These standards include for use in underground coal mines, the commenter pointed out that diesel- requirements for fire prevention and final rule re-titles part 36 and eliminates powered equipment presents different machine safety features such as references to ‘‘gassy noncoal mines and hazards than electric equipment, protection of hydraulic, fuel and tunnels’’ and related definitions. In inasmuch as it contains both a fuel electrical systems and adequate brakes addition, the application requirements source and an ignition source. The and operator controls. of § 36.6 and design requirements of commenter further maintained that Part 36 § 36.20 are revised to recognize the use permissible diesel-powered equipment of part 7-approved power packages, Existing part 36, previously known as receives better maintenance than which substitute for §§ 36.21 through schedule 31, has been in effect since nonpermissible equipment, and 36.26 (except §§ 36.25(f) and 36.43 1961. It sets approval requirements and explosive accumulations of methane can through 36.48). specifications for diesel-powered be encountered anywhere in an The final rule also updates part 36 in equipment used in ‘‘gassy noncoal underground coal mine. This several respects. Section 36.20, mines and tunnels’’. The final rule commenter noted that since 1969, 10 concerning the quality of material, retains these existing regulations as the explosions occurred in areas where workmanship and design, is revised to basis for approval of diesel-powered nonpermissible equipment is permitted, eliminate an outdated reference to equipment and, in lieu of further and seven of these explosions were § 18.24 of part 18, schedule 2F. In its caused by equipment that was not developing subpart H, includes amendments which expand part 36 to place, the final rule requires compliance maintained in permissible condition. with § 7.98 of the final rule, which Another commenter agreed that apply to equipment used in provides structural and flame path heavy-duty nonpermissible equipment underground coal mines. Specifically, requirements for explosion-proof should have approved engines and part 36 is amended to afford enclosures. This aspect of the final rule power packages to limit harmful manufacturers the option of reflects long-standing requirements for emissions from the engine and protect incorporating into their equipment part explosion-proof components. against the fire hazard presented by hot 7-approved power packages. Diesel- The definition of ‘‘low-volatile engine surfaces. This commenter, powered equipment with approved hydrocarbon (diesel) fuel’’ in § 36.2(i) is however, objected to MSHA approval of power packages will be suitable for use deleted by the final rule. This definition fully assembled nonpermissible in areas of underground coal mines is outdated and potentially confusing in machines as contemplated by subpart I. where permissible equipment is MSHA acknowledges that fire required. The existing part 36 approval context with § 75.1901 of the final rule, prevention and other machine safety requirements for diesel-powered which specifies requirements for diesel features can be successfully introduced equipment used in metal and nonmetal fuel. for nonpermissible equipment, without mines are unchanged by the final rule. C. 30 CFR Part 70 Discussion a formal approval program. This Part 36-approved equipment with regulatory approach has been effectively certified engines and safety component Section 70.1900 Exhaust Gas Monitoring implemented through MSHA’s part 75 systems will continue to be recognized As outlined in the proposal, the safety standards for underground coal for use in metal and nonmetal mines Advisory Committee regarded the health mines as they apply to nonpermissible where permissible equipment is effects of diesel exhaust as a key area of electric-powered equipment. For required. MSHA will issue approval concern. In its final report, the Advisory example § 75.518 provides fire numbers that differentiate between Committee focused on two areas— protection by requiring electrical system equipment for use in coal mines and exposure limits and a sampling strategy overload protection for nonpermissible equipment for use in metal and to monitor the concentration of diesel electric-powered machines. Section nonmetal mines. Machines approved exhaust in miners’ work environment. Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55429

The Committee recommended further limits. Under the proposal, samples of commenters offered data or specific research to develop information about carbon monoxide, nitric oxide and support for a particular action level. diesel particulate exposure levels at nitrogen dioxide would be taken weekly Commenters also expressed concern which health effects accrue. The in the immediate return airways of each about how effectively the proposed Committee also addressed gaseous split of air where diesel equipment is sampling procedures would address diesel exhaust components, concluding used. When sampling results exceeded variations in the concentration of diesel that suitable protection for miners 50 percent of any permissible exposure exhaust in miners’ workplaces. A would be achieved by relying on coal limit set by the proposal, personal number of commenters suggested mine air quality standards, either as exposure monitoring would have been different strategies with more frequent they currently exist or may be revised in required. If personal exposure samples samples to better monitor the presence the future. The Advisory Committee showed concentrations which exceeded of the gaseous components of diesel further concluded that exposure limits 75 percent of the permissible exposure exhaust. Some commenters suggested for gaseous contaminants of diesel standard, sampling would continue special sampling to evaluate peak exhaust should not be unique from the each operational shift until, with 95 exposure when, for example, equipment exposure limits set by the same percent confidence, it was established was operated under load. Other contaminants generated by other mining that exposure was at or below the commenters opposed such an approach, sources, such as blasting. The permissible level. citing difficulties in determining when Committee specifically recommended a Commenters to the proposed rule peak conditions might occur. Another periodic sampling strategy for carbon generally accepted the need for regular commenter recommended, in addition monoxide, nitric oxide and nitrogen sampling to evaluate miners’ working to weekly samples in return air courses, dioxide and sampling for sulfur dioxide conditions for the presence of weekly personal samples of each diesel if diesel fuel containing more than 0.25 potentially harmful gaseous diesel equipment operator, and at the same percent sulfur is used. In addition, the exhaust components. A number of time samples for at least two miners Advisory Committee recommended a commenters, however, noted that the working inby all pieces of diesel sampling strategy which utilized return proposed rule was too focused on equipment on the same split of air. air course samples to trigger personal sampling, and gave inadequate attention According to this commenter, the exposure sampling. The Advisory to requiring corrective action. suggested sampling strategy would yield Committee’s recommendations served Some commenters recommended an better information about what diesel as the basis for the proposed rule. alternative to sampling in return air exhaust control measure modifications The proposed rule did not contain a courses. These commenters suggested a may be needed. Other commenters diesel particulate exposure standard. At personal sampling approach keyed to noted the dynamic nature of the the conclusion of their deliberations the the person in each mechanized mining underground mining environment, Advisory Committee recommended that unit likely to experience the highest which varies the concentrations of the Secretary of Labor set in motion a diesel exhaust exposure. This diesel exhaust in miners’ workplaces. mechanism whereby a diesel particulate ‘‘designated occupation’’ would be These commenters recommended standard could be set, and that the identified in the mine’s ventilation plan. sampling be performed every shift in Secretary work in concert with the According to the commenters, this miners’ work areas to timely detect the Bureau of Mines (BOM) and the approach would recognize differences onset of elevated levels of diesel exhaust National Institute for Occupational in mine configuration and mining contaminants. Safety and Health (NIOSH) to develop a methods. A number of commenters also noted sampling strategy and a program for its Some commenters considered the that, in addition to sampling in the implementation. Subsequent to those proposed action level for area samples, immediate return air course, attention deliberations, MSHA has been working set by the proposal at 50 percent of the should be given to the area of the closely with the BOM and NIOSH to permissible exposure limit values for section loading point. According to develop methods for measuring diesel the gaseous emission components being these commenters, diesel exhaust particulate and for the development of measured, to be reasonable. One contaminants are often elevated at this criteria for reducing miners’ exposure to commenter, in support of the action location due to high engine loads at a diesel particulate. In 1991, MSHA level concept, noted that sampling in single stationary point. Commenters issued an advance notice of proposed the immediate return air course would also noted the need to address situations rulemaking seeking additional measure the contribution of all diesel when diesels are used in locations outby information for the development of a equipment on the mining section, the working faces. According to these rule. MSHA also held three workshops thereby yielding readings that would commenters, construction projects can in 1995 that provided a forum for mine give reasonable assurance that miners involve significant diesel usage at some operators, labor unions, trade working on the section were protected. mines. organizations, engine manufacturers, Other commenters considered the 50 The proposed rule did not specify fuel producers, exhaust after-treatment percent action level possibly too low for sampling methods for evaluating the manufacturers, and academia, to present mines with naturally occurring ambient gaseous components of diesel exhaust. and discuss information about levels of carbon monoxide near the In the preamble discussion to the technologies and approaches that can be action level. Some of these commenters proposal, however, MSHA made utilized to limit the exposure of miners also foresaw possible problems at mines reference to electrochemical analyzers to diesel particulate. MSHA is currently operating near the 50 percent action and detector tubes as technology that using the information obtained from the level. These commenters were could be used to determine advance notice of proposed rulemaking concerned that an unnecessarily concentrations of the gases to be and the workshops to develop a burdensome cycle of area sampling measured. Commenters did not suggest proposed rule for reducing miners’ followed by personal sampling could specific sampling methods or object to exposure to diesel particulate. result. Commenters also noted that the those mentioned in the preamble The proposal generally followed the 50 percent action level could be raised discussion. Some commenters, however, Advisory Committee recommendations because the permissible exposure limits emphasized that the methods chosen for sampling and permissible exposure themselves include a safety factor. No should not be highly technical in 55430 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations nature. Several commenters urged that ventilation return airways of each use in a significant number of mines in the task of sampling be something working section where diesel equipment the industry which can sample miners generally could perform with is used, at a location which represents simultaneously and directly read out proper training. the contribution of all diesel equipment results for methane, oxygen, carbon As discussed elsewhere in this on the section. This approach was monoxide and nitrogen dioxide. Making preamble, the final rule as a whole is recommended by the Advisory checks of the mine’s diesel exhaust designed to lay a foundation for the safe Committee, and generally was control system part of the existing and healthful operation of diesel supported by the commenters. In practice of on-shift examinations equipment in the confined, potentially response to commenters, the final rule minimizes the burden of compliance explosive underground coal mine also requires samples in the area of the with the final rule’s sampling environment. To accomplish this section loading point if diesel haulage requirements. Under the final rule, objective, the final rule sets standards equipment is operated on the working special staff and a separate diesel for diesel engines, suitable for mining. section, and at the point inby the last exhaust sampling schedule should be For the operation of this equipment, the unit of diesel equipment on the unnecessary. final rule sets practicable standards for longwall or shortwall face where mining Sampling as part of the on-shift the use of low sulfur fuel and for equipment is being installed or examination also increases the adequate ventilation and proper removed. Depending on the mining frequency of diesel exhaust maintenance of diesel equipment. These system used, these are strategic concentration monitoring from the standards are intended to work together locations in which to take area samples proposed weekly schedule, and as an operating system to create a more to evaluate the overall effectiveness of responds to commenters who healthful and safe working environment the control measures for diesel exhaust. questioned the adequacy of the proposal for miners. In addition, the final rule authorizes in this regard. The final rule’s increased Paragraph (a) of the final rule adopts the MSHA district manager to specify frequency of sampling affords more a streamlined sampling strategy that is area samples at other strategic locations timely and meaningful information keyed to this operating system on a mine-by-mine basis in order to about the performance of the mine’s approach. The requirements of proposed accommodate circumstances which can overall diesel exhaust control system. § 70.1900 have been revised in the final result in significant concentrations of Diesel equipment is highly mobile and rule to integrate sampling for gaseous diesel exhaust. This aspect of the final the mining environment changes components of diesel exhaust with rule responds to commenters’ concerns rapidly as mine development existing on-shift workplace examination about situations which can involve progresses. Monitoring each shift alerts requirements and to take advantage of significant diesel usage in areas outby the mine operator to emerging problems modern sampling instrumentation. The the working face, such as construction with the control of diesel exhaust, final rule also incorporates by reference projects. The paperwork aspect of this before miners are overexposed to the threshold limit values (TLV’s) provision results in a minimally harmful contaminants. adopted by the American Conference of increased burden since existing § 75.370 Consistent with existing § 75.362 of Governmental Industrial Hygienists of this chapter requires that all this chapter, the final rule also requires (ACGIH). These TLV’s are also underground coal mines have sampling to be performed by a certified incorporated by reference in MSHA’s ventilation plans. Although this person designated by the operator. This existing standards for exposure limits in provision of the final rule is new, aspect of the final rule is generally § 75.322. The final rule retains the proposed § 75.390(b) would have consistent with the proposal as it proposed action level concept with required that the mine operator include requires that competent persons perform some modifications responsive to certain minimum ventilation quantities the sampling, the results of which form commenters. However, the final rule in the mine’s ventilation plan. Under the basis for important decisions about does not adopt the proposed the proposal, these minimum air miners’ work environments. requirement that area samples over the quantities would have been related to Under the final rule, sampling would action level trigger personal sampling. the number of diesel-powered units be required for two gaseous components Instead, paragraph (c) of the final rule operating and the air quantity necessary of diesel exhaust: carbon monoxide and requires corrective action to be taken to control gaseous diesel emissions. nitrogen dioxide. The final rule does not immediately to reduce gaseous diesel Thus, this final rule provision is retain the proposal for sampling sulfur exhaust concentrations to or below the consistent with proposed § 75.390(b). dioxide when diesel fuel containing action level. The final rule’s sampling Monitoring of gaseous diesel exhaust more than 0.25 percent sulfur is used. requirements are intended to provide a components during the on-shift Section 75.1901 of the final rule regular and timely check on how the examination required by existing requires the use of low-sulfur fuel at all total operating system of diesel exhaust § 75.362 of this chapter makes checks times, rendering this aspect of the control is working, with an emphasis on for diesel exhaust concentrations part of proposed rule unnecessary. The final prompt corrective action. the workplace examinations which have rule also deletes the proposed Although the final rule does not been historically conducted in the coal requirement for sampling nitric oxide. require personal sampling, existing mining industry. On-shift examinations Both carbon monoxide and nitric standards regulate miners’ exposure to are designed to detect hazards which oxide are produced in significant harmful airborne contaminants. These can develop during a working shift quantities when diesel engines operate standards do not permit miner when normal mining operations are under load. Elevated carbon monoxide exposures over the established TLV’s underway. Such examinations include is also indicative of engine faults such incorporated in this section of the final tests for methane gas accumulations and as misadjusted fuel systems, failure to rule and in § 75.322. MSHA enforces oxygen deficiency, and determinations derate engines for altitude, or dirty air these standards during mine inspections of air direction and velocity. Tests for cleaners. Conditions of use such as through personal and other sampling diesel exhaust gases can be readily prolonged diesel engine idling can also methods. made during the on-shift examination produce elevated levels of carbon Like the proposal, paragraph (a) of the by the same mine personnel. Currently, monoxide. Catalytic converters, final rule specifies area samples in the multi-gas detectors are available and in designed to remove carbon monoxide Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55431 from the exhaust, work poorly under and serves the underlying purpose of proposal is responsive to commenters these conditions due to lower the sampling requirements, which is to who pointed out that the proposal gave equipment operating temperatures. gauge the performance of the diesel inadequate attention to corrective Nitric oxide concentrations generally exhaust control system under normal action. The final rule retains the do not reflect engine faults. In addition, operating conditions. Like the proposal, proposed action level concept tied to nitric oxide is readily converted to the final rule does not prescribe special the TLV’s for carbon monoxide and nitrogen dioxide in the mine requirements to measure the nitrogen dioxide. The exposure limits atmosphere, making representative performance of the diesel exhaust incorporated are those already measurement difficult under the final control system under peak load incorporated in existing § 75.322 of this rule’s area sampling strategy. Also, in conditions. As some commenters noted, chapter. These exposure standards are MSHA’s experience the TLV for carbon determining when peak load conditions based on the 1972 threshold limit values monoxide will be exceeded before the occur would be difficult to predict. In set by the American Conference of TLV for nitric oxide. Sampling for addition, such an approach would Governmental Industrial Hygienists nitric oxide, therefore, is not retained in increase the complexity of the final rule (ACGIH) and have applied to the final rule. unnecessarily. underground coal mines for nearly 25 The final rule also requires sampling Regular sampling during on-shift years. This aspect of the final rule for nitrogen dioxide. Nitrogen dioxide is examinations will afford a realistic comports with the recommendation of readily detectable and potentially picture of the performance of the diesel the Advisory Committee that gaseous harmful to miners. The TLV for operating system. To meet the diesel exhaust components not be nitrogen dioxide is 5 parts-per-million requirement that samples be taken treated differently from contaminants (ceiling), which cannot be exceeded at during periods that are ‘‘representative generated by other mining sources. The any time. Therefore, the final rule of conditions during normal final rule does not adopt updated adopts the proposed requirement to operations,’’ MSHA intends that tests permissible exposure standards at this sample for nitrogen dioxide. for carbon monoxide and nitrogen time, as referenced in the proposal, The final rule addresses the collection dioxide be made when diesel-powered because this issue remains in the of carbon monoxide and nitrogen equipment is being used as it typically rulemaking process for Air Quality dioxide samples with performance- is in the mining process. Thus, for standards. based requirements. In response to example, sampling is appropriate when Under paragraph (c) of the final rule, commenters, the task of sampling is diesel haulage equipment is moving the action level is set at 50 percent of significantly simplified. The sampling coal or diesel-powered roof bolters are the TLV’s for carbon monoxide and/or requirements also emphasize prompt installing bolts. nitrogen dioxide for samples collected availability of sample results, consistent Some commenters noted the need to in the areas identified in paragraph (a). with the final rule’s emphasis on monitor exhaust concentrations during As noted in the proposed rule, an action corrective action to protect miners from longwall moves with diesel-powered level is used to minimize the risk that the risk of overexposure. equipment, expressing concern that workers will be overexposed. An action Paragraph (b)(1) provides that moving the component parts of a level is not a compliance limit for monitoring of carbon monoxide and longwall to a new block of coal for miners’ exposure. Instead, an action nitrogen dioxide is to be performed in mining can involve heavy usage of level is intended to provide a timely a manner which makes the results diesel equipment over the course of trigger for reviewing the mine’s diesel available immediately to the person multiple shifts. As a result, miners exhaust control system. Exceeding an collecting the samples. This aspect of could be exposed to elevated levels of action level under the final rule is not, the final rule recognizes that direct- diesel exhaust gases. The final rule by itself, a violation. readout sampling instruments are now addresses these comments through the The 50 percent action level concept is available that can measure carbon increased frequency of samples to well-recognized in industrial hygiene monoxide and nitrogen dioxide. Use of monitor diesel exhaust gases. On-shift practice as an effective, practical these hand-held instruments requires no examinations are required under screening tool for minimizing the risk of specialized technical background so that § 75.362 of this chapter when longwall workers’ overexposure. This approach, persons may be easily trained to moves are being performed and, under based largely on statistical perform this task. Mine-wide the final rule, tests of the concentrations considerations, was developed by the monitoring systems, with properly of carbon monoxide and nitrogen National Institute for Occupational located sensors, could also be employed dioxide are required at the point Safety and Health (NIOSH) for to collect the required carbon monoxide immediately inby the last piece of diesel regulations promulgated by the and nitrogen dioxide samples. equipment on the longwall or shortwall Occupational Safety and Health Paragraph (b)(2) of the final rule face. If these samples indicate carbon Administration (OSHA), ‘‘Leidel et al., generally adopts the proposal, and monoxide and/or nitrogen dioxide NIOSH Publication No. 77–173.’’. It is specifies that samples are to be collected concentrations greater than the action designed to afford a single value trigger by appropriate instrumentation that has level, immediate corrective action is for simplicity of application and to been maintained and calibrated in required. This approach protects miners reduce exposure monitoring burdens. accordance with the manufacturer’s through early detection of elevated ‘‘Patty’s Industrial Hygiene and recommendations. These provisions concentrations of diesel exhaust gases, Toxicology, 1994, p. 528.’’ Based on the establish sound practices necessary for and prompt adjustments to the mine’s work of Nelson A. Leidel and others, the accurate sample results, while retaining diesel exhaust controls. 50 percent action level is considered a the flexibility for new instrumentation Paragraph (c) of the final rule is reliable indicator that there is a low that may be developed in the future. modeled after other MSHA standards for probability of worker exposures which Paragraph (b)(3) requires that samples potentially hazardous gases, such as exceed the TLV linked to the action be collected during periods that are methane, and requires immediate level. representative of conditions during corrective action when sample results The action level of 50 percent of the normal operations. This aspect of the indicate gas concentrations exceeding TLV’s for carbon monoxide and final rule is consistent with the proposal the action level. This change in the nitrogen dioxide is well-suited to the 55432 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations purposes of this final rule, and will change in an action level is appropriate. occupations in areas outby the face. As afford miners protection from As discussed above, the purpose of an a result, MSHA is confident that miners overexposure to potentially harmful action level is to trigger a review of the will be adequately protected. diesel exhaust emissions. Samples mine’s diesel exhaust control system The final rule changes also respond to collected in accordance with paragraph before miners are overexposed to commenters who objected to the (a) of this section will yield results harmful gases. As the action level is proposed personal monitoring showing the concentration of diesel raised closer to the TLV, the reliability requirements as fostering excessive exhaust emissions in key places under of the action level as a timely warning sampling. In its guidance comments, the representative conditions on a regular diminishes. Thus, MSHA does not Office of Management and Budget basis. Applying the 50 percent action anticipate approval of action levels that counseled that the criteria for personal level to these routine sample results will provide a nominal margin of protection. monitoring had the potential for an account for sources of variability The final rule does not specify what unnecessarily burdensome paperwork affecting miners’ exposure, such as the corrective action is required when an loop in which a mine would be required diesel activity level, ventilation rates, action level for carbon monoxide and/or to conduct area sampling one week and and duty cycles. The action level also nitrogen dioxide is exceeded. Instead, personal sampling the next week. Other provides a simple means of evaluating this determination is to be made by the commenters also foresaw the potential the status of the mine’s overall diesel mine operator, who is in the best for a cycle of area sampling followed by exhaust control system. As discussed position to implement changes personal sampling, particularly at mines elsewhere, this operating system appropriate to the situation and with naturally occurring high levels of approach to the control of diesel sufficient to promptly return carbon carbon monoxide. These commenters exhaust emissions is a key monoxide and/or nitrogen dioxide also objected to the proposal that when underpinning of the final rule. concentrations to or below the personal exposure monitoring results The final rule also permits applicable action level. Corrective indicate levels greater than 75 percent of adjustments to the 50 percent action action may involve addressing the permissible exposure limit, such level on a mine-by-mine basis. Under ventilation deficiencies, controlling the sampling would be required to continue § 75.325(j) of the final rule the MSHA number of diesel machines operating in on each operational shift until district manager may approve an an area, or correcting engine faults. compliance was established with 95 alternative action level in the mine’s Elevated levels of carbon monoxide percent confidence. By focusing the ventilation plan. Ventilation plans are and/or nitrogen dioxide may indicate final rule’s sampling requirements on required for all underground coal mines that appropriate corrective action is monitoring the performance of the by existing standards under § 75.370 of revision of the mine’s ventilation plan. mine’s diesel exhaust control system this chapter. Under the final rule, any Modifying the mine’s ventilation plan and taking timely corrective action, this change in the 50 percent action level integrates needed controls into the potential problem is eliminated. must be based on the results of sampling operating system for the mine. The proposed rule recordkeeping which demonstrate that miners’ The final rule does not retain the requirements were tied to MSHA’s personal exposure will not exceed the proposed requirement to conduct proposed Air Quality standards in applicable TLV. Thus, a mine operator personal sampling when the action level §§ 72.200 (d), (e), (f) and (g) of this may show that a 60 percent action level, for gaseous diesel exhaust components chapter. Commenters objected to the for example, is appropriate for the is exceeded. Proposed § 70.1901 proposal’s reference to MSHA’s miners working on a section. To do this, therefore is not included in the final proposed Air Quality standards the operator must demonstrate through rule. While the Advisory Committee concerning exposure monitoring and sampling that miners working on the recommended a two-tiered approach of referenced the comments they had section are not overexposed to diesel area sampling which could trigger submitted on those proposed rules. exhaust gases when samples in the personal sampling, MSHA believes that Under the proposal, the results of immediate return air course show that the final rule’s sampling strategy will miners’ personal samples were to be concentrations of carbon monoxide and/ better protect miners. As discussed maintained for 5 years and include or nitrogen dioxide are maintained at 60 above, the sampling strategy adopted personal identification information as percent of the TLV. Based on this data, focuses on the performance of the well as data about sampling location, the 50 percent action level could be mine’s control system for diesel duration, and results. The proposed revised, with the approval of the district exhaust, rather than measurements of requirements also required a record of manager. The higher action level would individuals’ exposure levels. This the corrective action taken if miners’ be made part of the mine’s approved approach safeguards miners from exposure readings exceeded the ventilation plan and, thereby, become a overexposure by frequent testing for permissible limit. In addition, the compliance requirement at the mine. If, gaseous diesel exhaust components in proposed rule set requirements for with experience, the revised action level key areas, and establishing action levels access to miners’ personal exposure was shown to be inappropriate, changes for initiating corrective action that records, provided miners or their would be made through the mine responds to emerging problems. In representatives with the opportunity to ventilation plan approval process. Mine addition, MSHA mine inspections will observe monitoring, and called for ventilation plans are required by include regular checks on miners’ notification of miners when samples existing standards to be reviewed at exposure to harmful airborne indicate they have had exposures least every six months. contaminants, including carbon exceeding the permissible limit. The sampling necessary to monoxide and nitrogen dioxide, as part In the Air Quality rulemaking, demonstrate that the personal exposure of determining compliance with the commenters objected to MSHA’s of miners would not exceed the TLV TLV’s in § 75.322 of this chapter. proposal that adjustments to is not specified by the final rule, MSHA’s current practice is to sample, at calculations of exposure be made for recognizing that many approaches can least annually, all diesel equipment novel workshifts when a miner worked be taken. For approval to revise an occupations on each mechanized longer than eight hours. Commenters action level, however, MSHA will mining unit. It is MSHA policy to also also objected to mine operators having require clear evidence that a proposed sample half of the diesel equipment to take corrective action to reduce Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55433 exposures based on one sample showing Section 75.363 of this chapter requires should be available at the mine, given overexposure. In addition, commenters that the record be kept in a book the fact that air sampling for other gases, objected that it was burdensome to maintained for the purpose on the such as methane, is already required. include the mine operator’s corrective surface of the mine, and that the record D. 30 CFR Part 75 Discussion. action in exposure monitoring records. be completed by the end of the shift. Other commenters supported this Section 75.363 requires that the record Section 75.325 Air Quantity requirement. These commenters further be made by the certified person who Diesel engines produce exhaust stated that the period for record conducted the examination, or a person containing carbon monoxide, the oxides retention should be 30 years for designated by the operator. In the latter of nitrogen, and particulate matter, epidemiological purposes and to be case, the certified person must verify the presenting potentially serious health consistent with the Occupational Safety record by the end of the shift. Records risks to miners. Ventilation systems at and Health Administration’s general made under § 75.363 also must be underground coal mines where diesel- industry requirements. countersigned by the mine foreman or powered equipment is operated must be For the reasons discussed above, the equivalent mine official by the end of designed to dilute and carry away diesel final rule re-focuses sampling for the the mine foreman’s or equivalent mine exhaust contaminants, to ensure that gaseous components of diesel exhaust official’s next regularly scheduled miners’ exposure to contaminants is on early detection of diminishing working shift. These features of § 75.363 maintained within acceptable limits. performance of the mine’s diesel emphasize the importance of mine This portion of the final rule establishes exhaust control system. As a result, management using and responding to minimum air quantity requirements in personal samples are not required. data about working conditions in the areas of underground coal mines where Certain limited recordkeeping is, mine. however, necessary to support the final Section 75.363 also recognizes the use diesel-powered equipment is operated. rule’s objective of tracking the of electronic recordkeeping technology, These requirements recognize that performance of the mine’s diesel provided it is made secure and not effective mine ventilation is a key exhaust control system. To accomplish susceptible to alteration. MSHA component in the control of miners’ this objective with the least encourages the use of such systems to exposure to diesel exhaust recordkeeping burden, paragraph (d) of ease recordkeeping burdens and contaminants. the final rule revises the recordkeeping facilitate analysis of this important Air quantity requirements for diesel requirements of the proposal, information. equipment were proposed in § 75.390. conforming them to the existing The final rule does not retain certain Under the final rule these requirements requirements for on-shift examinations. proposed recordkeeping requirements have been consolidated with the other Under the final rule, a record is required which related to personal exposure air quantity requirements for to be made of the results of samples monitoring. These include notification underground coal mines located in taken under this section which exceed of miners if they are exposed over existing § 75.325. the applicable action level for carbon permissible limits, the opportunity for The final rule provides that the monoxide and/or nitrogen dioxide. Like miners to observe personal monitoring minimum air quantity required to the proposal, the data to be recorded being conducted, and access to personal ventilate an individual unit of diesel- under the final rule include the location exposure records by miners and their powered equipment is the quantity where the sample was taken; the representatives. Since personal listed on the equipment approval plate. concentration of carbon monoxide and/ sampling is not required by the final The approval plate quantity, which is or nitrogen dioxide measured; and the rule, these provisions of the proposal calculated under § 7.88 of the final rule corrective action taken to reduce the are no longer appropriate. for each engine model, is the amount of concentration of carbon monoxide and/ The final rule does, however, make air necessary to dilute carbon monoxide or nitrogen dioxide to below the results from area samples required by (CO), carbon dioxide (CO2), nitric oxide applicable action level. A record of the this section available for inspection by (NO), and nitrogen dioxide (NO2) to the instrumentation used, which would miners’ representatives and MSHA levels set by existing § 75.322 for those have been required under the proposal, inspectors through § 75.363 of this gaseous contaminants. This ventilation has not been adopted in the final rule, chapter. This aspect of the final rule is rate must be displayed on the engine’s because this is not essential information consistent with the statutory role of approval plate. The approval plate air under the sampling scheme of the final miners’ representatives and facilitates quantity must be maintained: in any rule. meaningful mine inspections. The working place where an individual unit This aspect of the final rule is retention period for the records required of diesel equipment is being operated; at intended to minimize recordkeeping by by paragraph (d) is at least one year, the section loading point during any requiring a record only when sample through the existing requirements of shift the equipment is being operated on results are over the appropriate action § 75.363 of this chapter. the working section; in any entry where level. This information is key to an Paragraph (e) of this section of the equipment is being operated outby the effective monitoring system and final rule provides that exhaust gas section loading point in areas of the provides essential data for assessing monitoring be conducted in accordance mine developed on or after the effective how the mine’s diesel exhaust control with § 70.1900 as of 12 months after the date of the final rule; and in any air system is functioning. publication date of the rule. This course with single or multiple entries For ease of administration by mine compliance deadline should provide where equipment is being operated operators, the final rule specifies that mine operators with adequate time to outby the section loading point in areas recordkeeping under paragraph (d) implement the requirements of this of the mine developed prior to the follow the same requirements contained section, and corresponds to the 12- effective date of the final rule. The in existing § 75.363 of this chapter. month compliance deadline for the new district manager may also designate, in These standards prescribe the ventilation requirements for diesel- the ventilation plan, additional recordkeeping requirements for powered equipment in § 75.325 of the locations where minimum air quantities hazardous conditions found during a final rule. Persons who are qualified to must be maintained for individual units shift, including on-shift examinations. take the required gas measurements of equipment. 55434 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations

In areas of the mine where multiple as the ‘‘100–75–50’’ approach during the limited class equipment and equipment units of diesel-powered equipment are public hearings and throughout the that is vented directly into return air operated, the final rule provides that the rulemaking process. Minimum air courses, from minimum air quantity minimum air quantity will be the sum quantity requirements would also have calculations. Commenters also of the approval plate air quantities of all applied when face equipment was being suggested that administrative and of the equipment. The air quantity must installed or removed. engineering controls designed to be maintained in the last open crosscut The proposed rule would also have maintain contaminant levels within of each set of entries or rooms in each established a minimum ventilation acceptable limits, as well as respiratory working section; in the intake, reaching quantity based upon the particulate protection practices implemented at the the working face of each longwall; and index determined for each type of diesel mine, should be taken into account in at the intake end of any pillar line. The engine. The particulate index would calculating minimum air quantities. final rule allows certain types of have specified the quantity of air One commenter pointed out that an equipment to be excluded from the needed to dilute the diesel particulate engine’s approval plate air quantity is multiple unit calculation for air matter generated by the specific engine based on the worst point of the quantity, based on the fact that the to 1 milligram per cubic meter of air. In operational range of the engine. The emissions from those types of some cases the minimum air quantity commenter further stated that this equipment would not significantly derived from the particulate index engine rating fails to take into account affect the exposure of miners to would have been greater than the air a number of factors that affect the contaminants. The final rule also quantity specified on the machine gaseous emissions levels actually authorizes the district manager to allow approval plate. discharged into the mine environment, reduced air quantities in the ventilation A major concern of many commenters including the equipment power plan for multiple units of diesel- was the use of approval plate air package; the engine duty cycle; the powered equipment, if the mine quantities in establishing ventilation mine’s elevation; the fuel used; and operator presents evidence that justifies requirements for both individual and equipment maintenance. the reduction. Under this section mine multiple units of diesel-powered Other commenters stated that the operators are also permitted to obtain equipment. A number of commenters proposal would give no credit to mine district manager approval for an action stated that the air quantities specified operators who used low emission level other than the 50 percent level on engine approval plates are not technology, and that consideration specified in § 70.1900, if evidence always necessary to dilute contaminants should be given to calculating approval submitted by the mine operator generated by the equipment to plate quantities after rather than before supports such a change. permissible levels. Several commenters exhaust gases are treated. Other The Diesel Advisory Committee expressed concern that the proposal commenters stated that approval plate recommended that MSHA establish represented a simplistic approach to air quantities were well below average minimum ventilating air quantities for complex issues, given the great variety ventilation quantities currently areas of the mine where diesel-powered of ventilation systems in underground provided in any given split of air. equipment operates, and that these coal mines. The final rule does not incorporate minimum quantities be specified in the Some commenters stated that the approach advocated by several mine operator’s ventilation plan. The determining minimum air quantities on commenters for individual units of Advisory Committee further a mine-by-mine basis was more diesel-powered equipment. Instead, recommended that required air appropriate than the across-the-board paragraph (f) adopts the proposed quantities be based on the approval approach taken in the proposal. Most of requirement and provides that the plate air quantities, with appropriate these commenters stated that if a mine’s minimum ventilating air quantity where provisions made to address multiple air quality is acceptable, air quantity an individual unit of diesel- powered units of equipment in the same air should not be an issue, advocating a equipment is operated is the approval course. The Committee also concluded performance-based approach. These plate air quantity. that allowances should be made for commenters believed that the final rule Although commenters are correct in adjustment to minimum air quantities, if should give mine operators much more stating that the goal of air quantity operating experience and workplace flexibility than the proposal would in requirements is to ensure that exhaust sampling indicate that such an designing their ventilation systems. contaminants produced by the diesel adjustment is appropriate. Finally, the A number of these commenters engine are diluted to within acceptable Committee recommended that a recommended that approval plate limits, thereby preventing overexposure particulate index be developed for each quantities be used only as a guideline of miners, a pure performance-oriented piece of diesel-powered equipment and for determining minimum air quantities approach, based on sampling to be reported on the engine approval for diesel equipment, and that a number determine whether contaminants are plate. of other variables be taken into account within acceptable limits, is not the best Under the proposed rule, the in determining the quantity of air way to achieve this goal. Elimination of minimum quantity of air in any split of needed to dilute exhaust contaminants. minimum air quantities and adoption of air where an individual unit of diesel- Commenters stated that such variables the performance-based scheme powered equipment was operated should include the minimum volume advocated by some commenters would would have been the approval plate air and velocity of air proposed by the mine by necessity demand an extensive and quantity. The minimum air quantity on operator; the number of diesel-powered burdensome regimen of personal any split of air where multiple diesel units operating on the section; the sampling to ensure that miners are not units were operating would have been equipment approval plate quantities; the being overexposed. In contrast, the calculated using the sum of 100 percent duty cycles of the equipment; and the mandatory minimum ventilating air of the highest approval plate air duty cycles of equipment that is not quantities in the final rule will give quantity, 75 percent of the second typically operating, such as equipment reasonable assurance that contaminant highest approval plate air quantity, and used for longwall moves. levels are being adequately controlled, 50 percent of any additional approval Some commenters recommended the while the sampling that an operator plate air quantities. This was referred to exclusion of certain equipment, such as must perform has been minimized. The Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55435 amount of air required by the approval It should also be noted that the oxides The final rule does not adopt the plate quantity to ventilate a diesel of nitrogen (NO and NO2) have been the suggestion of commenters who engine is a scientifically-based controlling gases for engine approval advocated factoring in exhaust after- determination of the minimum air plate quantities for the vast majority of treatment in determining minimum air needed to maintain gaseous diesel engines that have been approved quantities. The after-treatment contaminants, particularly NO2, within in the past. This means the approval technology currently available is acceptable limits and avoid plate quantity is determined by the air ineffective in reducing the oxides of overexposures of miners. The sampling needed to dilute those two gases; a nitrogen. Consequently, the gases used under the final rule confirms that the lesser quantity of air is sufficient to to determine the approval plate air integrated system of protections—diesel dilute the other gaseous contaminants quantities for the vast majority of diesel engines that are well maintained and produced by the engine. Although NO engines that have been approved cannot effectively ventilated—continues to does not have the same toxic effects as be controlled by existing exhaust after- function as intended. NO2, it does convert to NO2 over time. treatment technology. This The approach taken by the final rule As mentioned above, sufficient dilution recommendation has therefore not been is an effective method of minimizing of NO2 is essential to protect miners adopted in the final rule. miners’ exposure to unhealthful diesel from its potentially severe effects. The locations where minimum air emissions. As explained above, the The approval plate air quantity quantities must be maintained for approval plate air quantity is derived calculation takes into account the worst individual units of diesel equipment from a mathematical determination of operating point of a properly have been modified in the final rule the amount of air that is needed to maintained engine tested under from what would have been required laboratory conditions. Some under the proposal. The proposal would dilute CO, CO2, NO, and NO2 to the TLV’s established in existing § 75.322, commenters asserted that approval plate have required minimum air quantities which have applied in underground air quantities were unnecessarily high, for individual units of equipment to be coal mines for the last 25 years. The because the quantities were calculated maintained in any split of air where the TLV’s for these contaminants, with the for the worst operating point of the equipment was being operated. A machine, when the machine generated number of commenters disagreed with exception of NO2, are time-weighted averages, which means that the average the highest levels of gaseous this provision, stating that the term concentration of the contaminant over contaminants. Although commenters are ‘‘split’’ was vague and ambiguous, and correct in stating that the approval plate an 8-hour period must be within did not adequately specify areas of the calculation represents the air quantity mine where individual units of allowable limits, although the levels of needed to dilute contaminants at the equipment were likely to operate and these contaminants may spike up point where the engine produces the generate high levels of diesel exhaust significantly in excess of the TLV in highest level of emissions, diesel engine contaminants. Commenters also short excursions over the measurement emission levels are high over a range of identified outby areas and section period. In contrast, the NO limit of 5 2 operating points. See, Report of the loading points as locations where diesel parts per million is a ceiling limit, Bureau of Mines, U.S. Department of the exhaust levels tended to be a particular which means that concentrations of NO 2 Interior, ‘‘Relationship of Underground problem and where additional must never exceed the TLV, even for Diesel Engine Maintenance to ventilating air was needed. Several a brief period of time. This is because Emissions’’ (December 1983). Contrary commenters stated that it was essential elevated concentrations of NO2 can be to the assertions of some commenters, to have adequate ventilation across the very toxic, and even short exposure to the engine approval plate quantity does mine’s dumping points to ensure that high levels of NO2 can cause not represent an unrealistically high diesel emissions are swept out of the inflammation of the lungs, possibly quantity of air, but is an accurate area. These commenters stated that the resulting in pulmonary edema and lung determination, based on testing, of the rule should also address outby hemorrhaging. The only external sign of ventilating air quantity needed to operation of diesel-powered equipment, NO2 poisoning is shortness of breath. protect miners working in the vicinity of because excessive diesel emissions Sufficient dilution by adequate the equipment over their working shift. occur in idled areas of the mine and quantities of air of all contaminants, and Finally, as pointed out by one during non-production times, when less in particular of NO2, during the entire commenter, the approval plate air air is typically required for ventilation period that diesel-powered equipment quantity is calculated using new because dangerous levels of methane operates is therefore essential in engines, whose performance will likely tend to be less of a problem during those protecting miners’ health. degrade to some extent over time, with periods. Other commenters were of the It is important to note that the the potential for increased emission opinion that the rule should not approval plate calculation assumes total levels, even if the engines are well designate locations where minimum air mixing of the exhaust gases in the maintained. quantities must be maintained, and ventilating air, and that levels of The performance-based approach supported determining these locations exhaust gases that are higher than the advocated by several commenters could on a mine-by-mine basis. TLV’s will likely occur close to the provide another method for determining In response to commenters, the final machine’s exhaust, before the gases are minimum air quantities, but, for the rule does not adopt the proposed fully dispersed and diluted by the reasons stated earlier, would substitute requirement that the air quantity for ventilating air. Essentially, this means a rather intricate sampling process that individual units of equipment be that the approval plate air quantity would result in a determination that maintained in any ‘‘split’’ where the represents the best-case scenario for essentially the same minimum air equipment was being operated. Instead, contaminant dilution. The approval quantities are needed to ventilate the paragraphs (f)(1) through (f)(5) list the plate air quantity is therefore the equipment. Mandating approval plate specific locations where the minimum smallest amount of air that will ensure quantities as the minimum air quantities air quantity must be maintained, and that contaminants are within acceptable is not the only approach to ventilation include those locations identified by levels at all points in the engine’s duty of diesel-powered equipment, but it is commenters where diesel equipment is cycle. the most workable and practical. typically inadequately ventilated and 55436 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations where levels of exhaust contaminants overexposure to contaminants at all this transitional period, equipment with are likely to be high. These locations times during the shift, regardless of unapproved engines that do not have an include any working place where the which unit of diesel equipment is at the approval plate will not be subject to the equipment is being operated; at the loading point. minimum air quantity requirements of section loading point during any shift Paragraphs (f)(3) and (f)(4) have been the final rule. However, mine operators the equipment is being operated on the added to the final rule to address the are under a continuing obligation to working section; in any entry where concerns of those commenters who ensure that air contaminants are equipment is being operated outby the stated that minimum ventilation maintained within the limits established section loading point in areas of the requirements should apply to diesel- in § 75.322, and diesel-powered mine developed on or after the effective powered equipment that is being equipment must be ventilated with date of the final rule; in any air course operated in outby areas. These two sufficient quantities of air to prevent with single or multiple entries where provisions, one of which applies to overexposure of miners. the equipment is being operated outby areas of the mine developed before the Paragraph (f)(5) has been added to the the section loading point in areas of the effective date of the final rule and the final rule to give the district manager mine developed prior to the effective other which applies to areas developed the authority to require other locations date of the final rule; and at any other on or after the effective date, recognizes where minimum air quantities for location required by the district that the ventilation system design at individual units of equipment must be manager and specified in the approved some mines with multiple common maintained. These locations must be ventilation plan. haulage entries would make it difficult, specified in the ventilation plan. This Paragraph (f)(1) provides that the if not impossible, to maintain minimum provision has been added in response to minimum ventilating air quantity for an air quantities in a single entry. commenters who were concerned about individual unit of diesel-powered Consequently, the final rule allows the inadequate ventilation in areas where equipment must be maintained in any minimum air quantity to be maintained diesel-powered equipment was working place where the equipment is in the air course rather than in a single operating, other than those locations being operated. This responds to entry, in areas of the mine developed specified in paragraphs (f) (1) through commenters’ concerns and clarifies the before the effective date of the final rule. (4). These locations could include, for intent of the proposal, which would In areas of the mine developed on or example, underground repair shops, have required that the minimum air after the effective date, the minimum air permanent fuel storage facilities or quantity be maintained in the ‘‘split’’ quantity must be maintained in a single temporary fuel storage areas, or where the equipment operates. As entry. This means that mines with construction sites where diesel-powered discussed above, a number of multiple common entries that use diesel equipment is regularly operated and commenters did not consider the term equipment must alter their approach to where minimum air quantities are ‘‘split’’ to be sufficiently descriptive, future mine development no later than needed to keep contaminant levels and the final rule has been revised in the effective date of the final rule. within acceptable limits. response. Under the final rule required This two-pronged approach to The final rule adopts the proposal’s air quantities must be maintained in the ventilation of outby diesel equipment approach of using the engine approval ‘‘working place,’’ which is defined in recognizes that the location and plate air quantity to determine the existing § 75.2 as ‘‘The area of a coal direction of required air quantities have minimum air quantity in areas where mine inby the last open crosscut.’’ This an impact on how effectively the air will multiple units of diesel-powered location is designed to address dilute diesel engine emissions. Air that equipment are being operated. ventilation of an individual unit of is coursed directly over diesel Paragraph (g) provides that the diesel-powered equipment that is equipment will dilute contaminants minimum ventilating air quantity where working at an inby location, near the more effectively than air of the same multiple units of diesel-powered face. volume and velocity that is dispersed equipment are operated on working Paragraph (f)(2) adds the specific over a wider area. Consequently, sections and in areas where mechanized requirement that the minimum air providing the air quantity in a single mining equipment is being installed or quantity for an individual unit of entry rather than over multiple entries removed, must be the sum of 100 equipment be maintained at the section is a more desirable method of percent of the approval plate quantities loading point during any shift that the ventilation. However, this approach also for all of the equipment. As mentioned equipment is being operated on the takes into account that a number of earlier, this is a change from the 100– working section. This provision mines would be unable to comply with 75–50 percent approach of the proposal. responds to commenters who singled the location requirements of (f)(3) in The final rule, like the proposal, also out loading points as one of the areas that have already been developed, specifies certain equipment that may be locations where excessive levels of without significant capital expenditures excluded from the calculation of diesel contaminants were a particular and substantial disruption of mining minimum air quantity, and also permits problem. Commenters pointed out that operations. This aspect of the final rule a mine operator to obtain a reduction in the ventilating air quantities at these therefore strikes a balance between the the required minimum air quantity for locations were frequently insufficient to concerns of commenters regarding multiple units if sampling evidence dilute exhaust contaminants and protect adequate ventilation of diesel establishes that a lesser ventilating air miners from unhealthful levels of equipment operated in outby areas, and quantity will maintain continuous exhaust gases. Because different types of the economic infeasibility of a complete compliance with the TLV’S in § 75.322. equipment move in and out of a section overhaul of areas of the mine that have Several commenters advocated that loading point on a regular basis, the already been developed. approval plate air quantities be used minimum required air quantity will be It should be noted that § 75.1907 of only as guidelines for ventilation of the greatest approval plate quantity the final rule does not require diesel multiple units of equipment, for the among all of the diesel-powered equipment used in outby areas to have same reasons outlined in the discussion equipment that is operated at the an engine approved under subpart E of of ventilating air quantities for loading point during the shift. This will part 7 of the final rule until 3 years after individual units of equipment. These ensure that miners are protected from the publication date of this rule. During commenters stated that there were a Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55437 number of variables that must be although the approval plate air quantity multiple units of equipment would have considered in establishing ventilation is calculated for a worst case engine been required when the particulate for diesel equipment, and advocated operating point, research has shown that index established for the equipment determining minimum air quantities on engines generate high levels of indicated that a greater air quantity was a mine-by-mine basis. contaminants over a range of engine needed to maintain diesel particulate Some commenters were opposed to operating points. The air quantity levels within acceptable limits. The the 100–75–50 approach, stating that it available on the section should be particulate index indicates the quantity would not adequately protect miners. sufficient to control the engine of air required to dilute particulate These commenters took issue with the emissions under all conditions. emissions from that specific engine to a assumption that multiple units of The 100–100–100 approach also concentration of 1 milligram per cubic diesel-powered equipment could not be recognizes that approval plate air meter of air. The 1 milligram value was operating at their worst point, i.e., quantities will be calculated differently chosen to make the use of a diesel generating the highest levels of under part 7 than they have been under particulate permissible exposure limit emissions—simultaneously. part 36, prior to the promulgation of this with an engine’s particulate index a Commenters also pointed out that the final rule. As discussed in the preamble matter of simple multiplication, and is 100–75–50 approach assumed that to subpart E of part 7, an engine’s not meant to be an indicator of the level engines perform at a consistent level approval plate air quantity under the of any diesel particulate standard that from the day they are purchased until final rule will be determined by the may be set by MSHA in the future. the end of their useful life, and amount of air needed to dilute Under the proposal, MSHA intended advocated that the sum of 100 percent contaminants to the TLV’s in § 75.322. to apply the particulate index in two of the approval plate air quantities be Up until now, approval plate quantities phases, before and after the setting of a used instead as the minimum have been determined under part 36 diesel particulate standard. Before the ventilation quantity. based on the amount of air needed to promulgation of a standard, MSHA The final rule, like the proposal, dilute contaminants to 50 percent of the intended to take an engine’s particulate specifies that engine approval plate TLV’s that were in effect when part 36 index into account in approving quantities are the minimum ventilating was first promulgated in 1961. Although minimum air quantities in a mine air quantity for diesel-powered the levels to which CO and NO2 must operator’s ventilation plan by estimating equipment. The approval plate quantity be diluted remain the same under the the contribution of diesel particulate to is required for multiple units for the final rule, the dilution levels for NO and the total respirable coal mine dust same reasons that it is required for CO2 are twice as high. Consequently, concentration. After the promulgation of individual units: it is an accurate less air will be needed to dilute these a diesel particulate standard, the calculation of the amount of air that is two gases to the higher levels, and the minimum air quantity would be needed to dilute gaseous diesel exhaust approval plate quantity will be lower for determined using the particulate index contaminants to acceptable levels. most if not all engines. However, the to calculate the air quantity needed to However, the final rule, like the approval plate quantity will now dilute the particulate concentration to proposal, allows mine operators to seek directly correlate to existing TLV’s. It whatever level was required. reductions in the required air quantities follows that 100 percent of the approval A number of commenters stated that, if they are able to demonstrate that plate quantity, rather than some fraction because MSHA has not yet established contaminant levels will be kept within thereof, must be provided to adequately a permissible exposure limit for diesel required limits at reduced ventilating air dilute the gaseous diesel engine particulate, a requirement for increased levels. This provision recognizes that, as contaminants. air quantities based upon a diesel stated by commenters, there may be Approval plate quantities determined particulate index was inappropriate. variables of mine design, equipment under the final rule may also be slightly Other commenters supported the use of operation, or ventilation in areas where lower than before under old part 36, as a particulate index as a point of multiple units operate that may result in a result of the revision in part 36 that comparison among different diesel- less air being needed to keep air quality requires engines to be tested with 1.0 powered engines, but they were strongly within healthful limits. For example, if percent methane injected into the opposed to the use of the index to the diesel machines on a section are not engine air intake, rather than the current require minimum air quantities. Other operated so that all machines are 1.5 percent. Because injection of commenters stated that accurate producing maximum emissions methane into the engine increases measurement of diesel particulate is not simultaneously, reduced minimum air engine emissions, the lower possible, because diesel particulate quantities may be appropriate. concentration of methane used under matter is indistinguishable from other The final rule does not adopt the 100– the final rule will result in lower respirable coal mine dust. One 75–50 approach, in response to emissions and will require a lower commenter stated that the particulate commenters’ concerns that it would not quantity of air to dilute. index fails to take into account that the provide adequate protection for miners, Because of these factors, the 100–100– diesel engine is itself only one factor in and for several other reasons. First, the 100 calculation for multiple units of how cleanly the machine operates as a 100–75–50 formula was designed to equipment will not result in minimum whole. This commenter recommended account for differences in duty cycles air quantities that are significantly that other factors be considered, among the equipment, since the greater than air quantities currently including the effectiveness of water approval plate air quantity is based required in ventilation plans using the scrubbers, dilutors, catalytic convertors, upon the worst point of the operating 100–75–50 method of calculation. In and particulate traps or filters, any one range of the equipment relative to fact, in some cases, the air quantity of which could significantly reduce gaseous emissions. The 100–75–50 required for multiple units may be less diesel particulate emissions. approach assumed, as has been pointed than what was required before, Although MSHA is currently out by commenters, that multiple units depending on the diesel equipment that developing a proposed rule to control of equipment would not have been is being operated. miners’ exposure to diesel particulate, operating at their worst points at the Under the proposal, air quantities in MSHA agrees with commenters who same time. As discussed above, excess of the 100–75–50 calculation for believe that the use of the particulate 55438 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations index for determining minimum increased diesel engine loads. These The final rule does not respond to ventilation requirements would be commenters stated that during longwall commenters who stated that too much premature in the absence of a standard moves the exhaust from one diesel air across the face area could have a for diesel particulate. The final rule machine would be ‘‘rebreathed’’ by negative impact on the effectiveness of therefore does not adopt the proposal’s another diesel machine, resulting in a respirable dust scrubbers on continuous requirement for increased air quantities doubling of carbon monoxide levels. miners. While it is true that increased based on a diesel engine’s particulate Paragraphs (g)(1) through (g)(3) of the air quantities could in some cases have index. However, MSHA will still final rule set forth the specific locations an adverse effect on dust scrubber calculate an engine’s particulate index where minimum air quantities must be effectiveness, this impact must be as part of the approval process. As was maintained where multiple units of balanced against the need to control true under the proposal, the particulate diesel-powered equipment are harmful diesel exhaust contaminants. index will be determined under part 7 operating. Under the proposal, as There are other dust control of the final rule. The particulate index described above, minimum air technologies that are available to for the engine will be reported in the quantities would have been required in supplement dust scrubbers if the need approval letter that MSHA sends to the the last open crosscut of each working arises. engine manufacturer notifying the section or in the intake splits of In response to the many commenters manufacturer that the engine has been longwall sections. who expressed concern about exposure approved. A copy of this letter also The final rule essentially adopts the of miners to high levels of diesel accompanies the equipment when it is approach of the proposal, although the exhaust contaminants during purchased by the mine operator. The term ‘‘split’’ used in the proposal has installation or removal of longwall particulate index for all MSHA- not been adopted in the final rule equipment, the final rule adopts the approved diesel engines will also be because, as explained in the discussion proposed requirement that minimum air included on MSHA’s list of approved under paragraph (a) of this section, quantities be maintained in areas where products, which is issued on a regular commenters considered the term ‘‘split’’ mechanized equipment is being basis to the individuals and companies to be vague and ambiguous. The final installed or removed. on MSHA’s mailing list. MSHA rule provides more specific description Paragraphs (h)(1) through (h)(4) of this anticipates that, until a diesel of the locations where air quantities section of the final rule, like the particulate standard has been set, mine must be maintained, although the proposal, allow certain types of operators and machine manufacturers location requirements themselves are equipment to be excluded from the will use the engine particulate index in essentially the same as they would have minimum air quantity calculation of selecting and purchasing engines. been under the proposal. Paragraphs paragraph (g). The rationale behind During this time mine operators may (g)(1) through (g)(3) of this section these exclusions is that the specified also use an engine’s particulate index to require the minimum air quantity in equipment is operated or ventilated in roughly estimate the engine’s working sections to be maintained: in such a way that it does not significantly contribution to the mine’s levels of total the last open crosscut of each set of affect the exposure of miners to diesel respirable coal mine dust. entries or rooms in each working exhaust contaminants. Commenters Under the proposal multiple units of section; in the intake, reaching the were generally in favor of allowing equipment would have been required to working face of each longwall; and at certain equipment to be excluded, such be ventilated by specified minimum air the intake end of any pillar line. as equipment with light-duty cycles or quantities in the last open crosscut of The final rule does not adopt the equipment that is only used each working section or in the intake suggestion of commenters that air intermittently. One commenter stated, splits of longwall sections. The measurements be taken at locations however, that MSHA should verify proposed rule would also have required other than those specified in the information submitted by the operator minimum air quantities to be proposal. The recommendation that the to support exclusion of equipment, and maintained when face equipment was total intake air quantity entering a that the final rule should require mine being installed or removed. section and the total return air quantity operators to notify miners or their One commenter stated that air on a leaving a section be measured has not representatives to allow them to dieselized section should be coursed been adopted because this method of comment on the operator’s request for throughout the section and should not measurement will not provide an exclusion of equipment from the air be concentrated in the last open indication of the air quantity that is quantity calculation. crosscut. This commenter recommended actually reaching the working section. In response to this comment the final that the total intake air quantity going The air could be short-circuited before rule, unlike the proposal, requires into the section intake and the total it reaches the diesel machine, but still district manager approval of all return air quantity leaving the section be measured as part of the return air exclusions and requires the exclusions should be measured. Another quantity. Further, the recommendation to be specified in the ventilation plan. commenter stated that air measurements that air measurements be taken in the This will allow MSHA review of all are more accurate in the immediate immediate return of each split, rather equipment that will be excluded from return of each split, rather than at the than at the last open crosscut, has not the air quantity calculation, and last open crosscut. been incorporated into the final rule responds to commenter concerns about Several commenters pointed out that because measurement at that location MSHA verification of excluded too much air across the face area was will give a less accurate indication of equipment. Additionally, requiring detrimental to the effective operation of the air that is actually ventilating the excluded equipment to be specified in respirable dust scrubbers on continuous diesel equipment. Finally, the the ventilation plan will ensure that miners. Several commenters identified measurement of air quantities at the last miners and their representatives, who longwall moves as periods when miners open crosscut under the final rule is are required under existing regulations were exposed to high levels of diesel also consistent with air measurement to be provided with proposed revisions exhaust, due to the increased use of requirements currently in most to an operator’s ventilation plan, are diesel-powered equipment on the underground coal mine ventilation notified of an operator’s intention to sections during these periods and the plans. exclude certain equipment. This Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55439 responds to commenters who advocated require certain equipment, such as comprehensive personal monitoring that miners’ representatives be notified electrical equipment, to be vented either program indicated that contaminant of and be given an opportunity to directly into a return air course or into exposure levels were below 75 percent comment on such matters. an intake air course that is coursed of the applicable contaminant standards Paragraph (h)(1) allows the exclusion directly into a return air course. The with 95 percent confidence. The of self-propelled equipment meeting the rationale for both of these exceptions in proposed rule also specified the requirements of § 75.1908(b) of the final the final rule is the same: that the diesel information that mine operators would rule. The proposal would have allowed exhaust of equipment that discharges have been required to submit to MSHA the exclusion of the limited class of into a return air course or into an intake for consideration in reducing minimum equipment meeting the requirements of air course that goes directly into a return air quantities, including the actual proposed § 75.1908, except diesel- air course will not, in most cases, come sampling plan and an evaluation of the powered air compressors that are into contact with miners because most sampling results. regularly used. The requirements of of them will be working in intake air in Some commenters were opposed to proposed § 75.1908 included specific the face area where production occurs. requiring a 95 percent confidence level objective criteria limiting equipment Commenters did not indicate any for the sampling used to support a horsepower and weight. In response to opposition to the reasoning behind reduction in air quantity, stating that commenters and for reasons explained these exceptions. this requirement was too technical and in detail in the preamble to § 75.1908, Paragraph (h)(4), like the proposal, unrealistic for practical application. equipment categories are defined in the allows mine operators to obtain MSHA Some commenters strongly opposed final rule by the equipment function approval for the exclusion of other allowing reduction of air quantities rather than by weight or horsepower. equipment from the air quantity under the procedure set forth in the Equipment that meets the requirements calculation in paragraph (g). Equipment proposal, stating that miners and their of § 75.1908(b) is light-duty equipment may be excluded under this paragraph representatives would not be given that does not, among other things, cut or if its duty cycle is such that the sufficient opportunity to participate in move rock or coal or move longwall emissions would not significantly affect the process. One commenter advocated components. Because the equipment is the exposure of miners. Mine operators use of petition for modification not operated under heavy load, it is not who seek to exclude equipment must procedures under section 101(c) of the expected to produce high levels of identify the equipment in the Federal Mine Safety and Health Act exhaust emissions, and may therefore be ventilation plan that is submitted to when mine operators seek to revise their excluded if specified in the mine MSHA for approval. Equipment that ventilation plans, stating that under operator’s approved ventilation plan. may be eligible for exclusion under these procedures miners and miners’ Although the proposal did not explicitly paragraph (h)(4) includes equipment representatives would have the right to limit the exclusion to self-propelled with a very small engine (less than 10 review and comment on the proposed equipment, as does the final rule, the horsepower) or heavy-duty equipment plan modifications. only portable equipment included in the that is operated infrequently, for very The final rule takes a more proposed limited class was compressors short periods of time, or when other performance-oriented approach to and welders, and compressors were not diesel equipment normally operated on reduction in minimum air quantities, eligible for exclusion under the proposal the section is shut down or not and requires that samples of if they were regularly operated. The operating. An example of equipment contaminants demonstrate that a lesser final rule takes a different approach and that could be considered for exclusion air quantity will maintain contaminant only includes self-propelled light-duty under this paragraph is a supply vehicle levels within permissible limits. This is equipment in the automatic exclusion that is driven up to the section, shut consistent with the streamlined under paragraph (h)(1), because some down and unloaded, started up and procedures for contaminant sampling in types of non-self-propelled light-duty immediately driven off of the section. § 70.1900 of the final rule, and also equipment, such as compressors and Equipment that is operated in a location responds to commenters’ generators, can produce high levels of so that its exhaust does not pass over recommendations that this aspect of the exhaust emissions. However, light-duty miners could also be eligible for this rule should be less technical. equipment that is not self-propelled exclusion. All other equipment, such as The objective of this aspect of the whose emissions would not nonpermissible heavy-duty equipment final rule is the same as that of the significantly affect the exposure of and face equipment which discharges proposal: that reduction of minimum air miners may be excluded from the air its exhaust into an intake air course of quantities required by the final rule is quantity calculation if approved by the the working section, must be included permitted if a mine operator can district manager under paragraph (h)(4). in the minimum air quantity calculation establish that miners will not be Also eligible for exclusion, under required by paragraph (g). overexposed to gaseous diesel exhaust paragraphs (h)(2) and (h)(3), is Paragraph (i) of the final rule, like the contaminants at the lesser ventilating air equipment that discharges its exhaust proposal, allows the district manager to quantities. into an intake air course that is vented approve a lesser air quantity than what The final rule does not adopt the directly into a return air course, or that would otherwise be required under suggestion of commenters that discharges its exhaust directly into a paragraph (g) for multiple units of diesel reductions in air quantity be granted return air course. Paragraph (h)(3), equipment. The final rule allows such a only under the modification procedures which exempts equipment vented modification if sampling results of section 101(c) of the Mine Act. Since directly into a return air course, has demonstrate that miners exposure to the time of the submission of these been adopted without change from the diesel contaminants will not exceed comments, MSHA has issued a final proposal. Paragraph (h)(2), which applicable TLV’s at the modified rule governing underground coal mine exempts equipment that discharges its ventilation quantity. ventilation, which includes revisions to exhaust into intake air that is coursed The proposed rule would have the existing ventilation plan submission directly to a return air course, has been allowed the district manager to approve and approval process [61 FR 9764] and added to the final rule to be consistent lesser air quantities for multiple units of addresses several of these commenters’ with other MSHA regulations, which equipment if the results of a concerns. The revised ventilation rules 55440 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations provide an increased role for the conform to the new requirements in New paragraph (nn) provides that the representative of miners in the § 75.325. ventilation plan must specify the ventilation plan approval process. Mine As was true under the proposal, minimum air quantities that will be operators are now required to notify the minimum air quantities for individual provided where multiple units of diesel- representative of miners at least 5 days units of diesel-powered equipment are powered equipment are operated. To before a ventilation plan or plan not required to be included in the comply with this requirement, mine revision is submitted to MSHA for ventilation plan, because individual operators should indicate the equipment approval, and make a copy of the units are required to be ventilated with that is being used in the normal mining proposed plan or plan revision available at least the engine approval plate air cycle, and the minimum air quantities for inspection to the miners’ quantity while they are operating. The that must be provided to ventilate the representative. The representative of final rule does require that the specified equipment. miners is given the opportunity to ventilation plan specify where air New paragraph (oo) provides that the submit written comments to MSHA for quantity will be maintained at the ventilation plan must specify the diesel- consideration during the plan review section loading point for individual powered equipment excluded from the process. Under this process, operators units of equipment, as well as any calculation under § 75.325(g). MSHA seeking reduction in the minimum air additional locations required by the does not intend that this provision quantities required under paragraph (g) district manager where a minimum air require the itemization or the serial are required to notify miners’ quantity must be maintained for an numbers of specific equipment. Instead, representatives, who then have the individual unit of equipment. the mine operator should provide a opportunity to comment on the The final rule, like the proposal, general description that is sufficient to reduction. No provisions have therefore requires the ventilation plan to specify identify the types of equipment that are been made to address these comments ventilation quantities for multiple units excluded from the calculation. in the final rule, because the comments of equipment, as well as to include a New paragraph (pp) conforms have already been addressed description of equipment that is ventilation plan content requirements to appropriately in the revised ventilation excluded from the multiple unit §§ 70.1900(c) and 75.325(j), and rule. calculation of § 75.325(g). provides that the ventilation plan shall Existing § 75.371(r) is revised by the identify any action levels that are higher Paragraph (j) allows modification of final rule to include a cross-reference to than the 50 percent level specified by the 50 percent action level specified in § 75.325 (d), (g), and (i). Paragraph (r) § 70.1900(c). As described in greater § 70.1900(c) if sampling results requires the ventilation plan to identify detail in the preamble discussion of demonstrate that miners will not be the minimum quantity and the location § 70.1900, mine operators may obtain a exposed to contaminants that exceed of air that will be provided during the higher action level if they are able to permissible limits at the modified action installation and removal of mechanized demonstrate that miners will not be level. As described in detail in the mining equipment, as well as the overexposed to contaminants at the preamble discussion for § 70.1900, any ventilation controls that will be used. higher level. If a higher action level is change to the action level must be based The addition of a cross-reference to approved by the district manager under on the results of sampling that § 75.325 clarifies that minimum air § 75.325(j), it must be specified in the demonstrate that miners’ personal quantity requirements for diesel- mine ventilation plan. exposure will not exceed the applicable powered equipment must be considered . Section 75.1900 Definitions TLV when determining ventilation quantities Paragraph (k) provides that, as of 12 during mechanized equipment This section of the final rule contains months after the publication date of the installation and removal. definitions of terms used in subpart T of final rule, the ventilating air quantity New paragraph (kk) has been added to part 75. These definitions are provided required where diesel-powered § 75.371 and provides that the to assist the mining community in equipment is operated shall meet the ventilation plan shall include any understanding and complying with the requirements of paragraphs (f) through additional areas designated by the requirements of the final rule. As a (j) of this section. Compliance with the district manager under § 70.1900(a)(4) of general matter, terms which are unique ventilation requirements of the final the final rule for CO and NO2 sampling. to the final rule are defined, while those rule will in some cases require As explained in more detail in the terms that are commonly used and modifications to the mine’s ventilation preamble to § 70.1900, the district understood in the mining industry have system. These revisions, along with manager is authorized under the final not been included for definition. other information required to be rule to require sampling in strategic The proposed rule defined two terms: specified in the mine ventilation plan locations on a mine-by-mine basis, in ‘‘fixed underground diesel fuel storage under paragraphs (f) through (j) of this order to address situations involving facility’’ and ‘‘mobile underground section, should be included in a revised significant concentrations of diesel diesel fuel storage facility’’. The final ventilation plan submitted to MSHA for exhaust. Paragraph (kk) conforms the rule adopts the proposed definition for review and approval. content requirements for ventilation ‘‘fixed underground diesel fuel storage facility’’, although the term itself has Section 75.371 Mine Ventilation Plan; plans to this new provision. been slightly modified, with the Contents New paragraph (ll) provides that the ventilation plan must specify the substitution of the word ‘‘permanent’’ The requirements for diesel-powered location where the air quantity will be for the word ‘‘fixed’’ to more accurately equipment that are included by the final maintained at the section loading point. reflect the nature of the facility. A rule in existing § 75.325 identify New paragraph (mm) provides that ‘‘permanent underground diesel fuel information that must be specified in the ventilation plan include any storage facility’’ is defined as a facility the mine operator’s ventilation plan. additional locations required by the designed and constructed to remain at Existing § 75.371, which lists the district manager, under § 75.325(f)(5), one location for the storage and information that must be provided by where a minimum air quantity must be dispensing of diesel fuel, and which mine operators in their mine ventilation maintained for an individual unit of does not move as mining progresses. plans, is amended by the final rule to diesel-powered equipment. Such facilities are designed to remain at Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55441 one location for an extended period of therefore not been adopted in the final system and additional specifications for time. Additionally, the final rule also rule. the equipment’s braking system. adopts, with slight modification, the One commenter recommended that Under the final rule, permanent proposed definition for ‘‘mobile several other terms be defined in the underground diesel fuel storage underground diesel fuel storage final rule, including ‘‘container,’’ facilities must be constructed of facility’’, although that term has been ‘‘safety can,’’ ‘‘tank,’’ and ‘‘fuel ‘‘noncombustible materials,’’ and changed in the final rule to ‘‘temporary transportation unit.’’ This commenter stationary tanks in those facilities must underground diesel fuel storage area’’ to pointed out that these terms are used be placed on 12-inch supports be more accurately descriptive. A throughout subpart T, and definition of constructed of ‘‘noncombustible ‘‘temporary underground diesel fuel these terms would enhance material.’’ ‘‘Noncombustible material’’ is storage area’’ is defined as an area of the understanding of the requirements of defined in the final rule as a material mine provided for the short-term storage the final rule. that will continue to serve its intended of diesel fuel in a fuel transportation MSHA agrees that definition of function for 1 hour when subjected to a unit, which moves as mining progresses. certain terms will facilitate compliance fire test incorporating an ASTM E119– The final rule also includes additional with the requirements of subpart T, and 88 time/temperature heat input, or definitions for the terms ‘‘diesel fuel has therefore included definitions for equivalent. This test, contained in the tank’’, ‘‘diesel fuel transportation unit’’, ‘‘diesel fuel tank,’’ ‘‘diesel fuel publication ‘‘Standard Test Methods for ‘‘noncombustible material’’, and ‘‘safety transportation unit,’’ ‘‘noncombustible Fire Tests of Building Construction and can’’. material,’’ and ‘‘safety can.’’ Because the Materials’’ of the American Society for Several commenters believed that the term ‘‘fuel storage container’’ is not used Testing and Materials, is used to definitions in the proposal were too in the final rule, a definition for this establish fire resistance ratings in narrow in scope and did not accurately term is not included in the final rule. minutes or hours for a particular reflect the different fuel storage facilities The term ‘‘diesel fuel tank’’ is defined building assembly such as a roof, wall, or beam. This means that a material currently in use in underground coal in the final rule as a closed metal vessel maintains its integrity under a fire mines or the different applications of specifically designed for the storage or exposure test used by the building mobile diesel-powered equipment. transport of diesel fuel. Metal tanks are industry to classify assemblies for their These commenters recommended the required based on metal’s demonstrated ability to resist fire. This definition is definition of two additional categories ability to contain diesel fuel in the event consistent with the definition of of underground diesel fuel storage of a fire, documented by the Bureau of ‘‘noncombustible material’’ in existing facilities: ‘‘temporary’’ and ‘‘self- Mines in a 1985 Report of Investigation § 75.301, which applies to the propelled.’’ Commenters offered entitled ‘‘Fire Tests of Five-Gallon construction of ventilation controls in definitions for these two additional Containers Used for Storage in underground coal mines. types of facilities, but they have not Underground Coal Mines’’ (RI 8946). One commenter who recommended been adopted in the final rule, although, This type of construction is also that ‘‘noncombustible material’’ be as mentioned above, the word consistent with the National Fire defined in the final rule suggested that ‘‘temporary’’ has been substituted for Protection Association (NFPA) the definition specify a 2-hour fire the word ‘‘mobile’’ in describing areas ‘‘Standards for Portable Shipping Tanks rating. The definition in the final rule provided for short-term fuel storage that for Flammable and Combustible specifies a 1-hour rating, which will move as mining progresses. The Liquids’’, (NFPA 386). provide protection in the event of a fire suggested definition for ‘‘self-propelled The term ‘‘diesel fuel transportation in underground fuel storage areas by diesel fuel storage facility’’ has not been unit’’ is defined as a self-propelled or confining the fire within the area for a included because it is similar in portable, wheeled vehicle used to sufficient period of time to allow miners function and definition to a ‘‘diesel fuel transport a diesel fuel tank. This to safely evacuate the mine. transportation unit,’’ which has been definition includes diesel-powered Additionally, the final rule requires defined in the final rule. vehicles such as lube units, automatic fire suppression systems and The definition offered by commenters maintenance trucks, tractors, and audible and visual alarms for permanent for ‘‘temporary diesel fuel storage scoops. This definition also includes underground fuel storage facilities. For facility’’ reflected commenters’ concerns locomotives that pull rail-mounted, these reasons, adequate protection of that the proposed construction portable diesel fuel transportation units. miners against fire is provided, and a 2- requirements for mobile fuel storage Under the final rule fuel transportation hour fire rating has not been adopted in facilities were too extensive, and would units must be wheel-mounted, since the final rule. make it difficult for the facility to move skid-mounted units are more likely to be The term ‘‘safety can’’ is defined in with the section and keep pace as damaged during loading and unloading the final rule as a metal container with mining progressed. Commenters in a scoop bucket or while being a nominal capacity of no more than 5 therefore recommended the creation of dragged through the mine. Required gallons used for storage, transport, or a category of fuel storage facility with safety features for these units are dispensing of diesel fuel that is listed or more flexibility than the mobile storage contained in § 75.1902 and §§ 75.1904 approved by a nationally recognized facilities under the proposal. through 75.1906 of the final rule. independent testing laboratory. In response to these comments, Additionally, self-propelled fuel Commenters supported the use of requirements for temporary fuel storage transportation units that are diesel- approved safety cans to transport small are addressed separately from those for powered, and diesel-powered amounts of diesel fuel. This definition permanent facilities in the final rule, equipment used to tow portable fuel provides assurance that adequate and reflect a more practical approach to transportation units are considered construction and performance temporary fuel storage, which is heavy-duty equipment under specifications for fire protection are met. explained in detail in the discussion of § 75.1908(a). Heavy-duty equipment The limitation on the capacity of safety § 75.1903, below. A definition for must be provided with the safety cans to no more than 5 gallons will ‘‘temporary fuel storage facility’’ is features specified in § 75.1909, control the amount of diesel fuel being consequently unnecessary and has including an automatic fire suppression transported and minimize potential fuel 55442 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations spillage. Such specifications and classification, did not describe a type of concluding that the safety of diesel fuel limitations are necessary in light of diesel fuel that was commercially exposed to hot surfaces would not accident reports of 10 fires in Canadian available, and would unnecessarily change with changing flash points. mines that resulted from diesel fuel limit the use of diesel fuel in No demonstrated hazard exists to spillage during refueling. underground coal mines. justify raising the flash point of diesel A safety can that meets this definition MSHA agrees with commenters that fuel above the proposed flash point of could be listed by Underwriters the proposed fuel specifications do not 125° F. However, MSHA acknowledges Laboratories or approved by Factory describe a fuel that is commercially commenters’ concerns that the proposed Mutual, Inc. Some nationally recognized available, and the fuel specifications flash point may unintentionally limit independent testing laboratories have contained in the final rule respond to the use of diesel fuel during the winter. established specific construction these comments. The reference to ASTM To address this issue, the flash point has specifications for the type and thickness D975 No. 2D diesel fuel has been been lowered in the final rule to 100° F of materials; material strength, stability eliminated, and a minimum flash point (38° C) or greater. and resistance to leakage; and standards and maximum sulfur content for diesel Several commenters suggested that for fire exposure that ensure that the can fuel have been specified. The fuel the terms ‘‘flash point’’ and will safely vent if exposed to a heat described by the final rule is in ‘‘combustible liquid’’ be defined, with source such as a fire. widespread use throughout the United some commenters offering The final rule defines ‘‘safety can’’ as States, and is easily obtained by mine recommended language for the a metal container. Thus, a plastic safety operators. The fuel specifications in the definitions. The final rule does not can listed or approved by a nationally final rule are based on Environmental include definitions for these terms. The recognized independent testing Protection Agency on-highway fuel term ‘‘flash point’’ is commonly laboratory would not be acceptable requirements for commercially available understood in the mining industry to under the final rule. A metal container diesel fuel. mean the lowest temperature at which is specified because metal is superior to A number of commenters were a liquid will give off sufficient vapor to plastic in containing diesel fuel in the concerned that the required flash point ignite on application of a flame, and event of a fire. The safety advantage of diesel fuel not be set too low, stating does not need to be defined in this rule. provided by metal cans has been that any diesel fuel specifications must The suggested definition offered by documented in the 1985 Bureau of keep the fuel within the class of commenters for the term ‘‘combustible Mines’ Report cited earlier. Specific combustible liquids, ensuring that liquid’’ specifies a flash point design requirements for safety cans are hazards associated with diesel fuel are temperature. Because the final rule sets addressed in § 75.1904 of the final rule. no greater than those associated with a minimum flash point temperature for other combustible liquids used diesel fuel, such a definition is Section 75.1901 Diesel Fuel underground. Some of these unnecessary. Requirements commenters recommended that the The proposal did not set a limit on This section of the final rule flash point for diesel fuel be set at 140° sulfur content for diesel fuel, but would establishes specifications for the fuel F, stating that lower flash points would have required sampling for sulfur used in diesel-powered equipment in increase the risk of vaporization and dioxide when diesel fuel was used that underground coal mines. Satisfying the increased aromatic content, especially at contained more than 0.25 percent requirements of this section will lower warmer mine temperatures. These sulfur. This approach was taken diesel engine gaseous and particulate commenters stated that increased because, although the proposal emissions, and will reduce equipment aromatic content has an effect on recognized that use of low sulfur fuel maintenance by limiting the amount of particulate emissions. was desirable, it was not readily sulfur in the fuel. The risk of fire in Other commenters stated that the available nationwide at the time the underground coal mines is also reduced proposed flash point of 125° F was too proposal was published in October by the minimum flash point for the fuel high. Some commenters reported that 1989. required by the final rule. The safety the flash point of diesel fuel is Some commenters stated that the benefits that result from this aspect of intentionally lowered when fuel sulfur content of diesel fuel should be the final rule are particularly important suppliers mix it for a winter blend, to limited in all cases to 0.25 percent. in the confined environment of an depress the cloud point of the diesel Others stated that a sulfur content underground coal mine. fuel and reduce the temperature at requirement should be phased in, Paragraph (a) of this section requires which the fuel begins to jell. These ultimately reaching the Environmental that diesel fuel used in underground commenters believed that a flash point Protection Agency’s maximum sulfur coal mines contain no greater than 0.05 of 125° F would virtually eliminate their level of 0.05 percent. One commenter percent sulfur and have a flash point of ability to use diesel-powered equipment stated that a requirement for low sulfur 100° F (38° C) or greater. The final rule in cold temperatures, unless the rule fuel would provide a health benefit to also requires the mine operator to specifically allowed the use of winter miners by reducing particulate provide an authorized representative of blends of diesel fuel with flash points emissions. the Secretary, upon request, with below 125° F. These commenters MSHA agrees that the sulfur content evidence that the diesel fuel purchased pointed out that the ASTM 975 of diesel fuel should be kept at a low for use in diesel-powered equipment specification for diesel fuel is being level. Sulfur in diesel fuel contributes to underground meets these requirements. changed to lower the minimum flash diesel particulate emissions. The proposed rule would have point of D1 diesel fuel to 100° F (38° C) Additionally, some types of exhaust required ASTM D975 No. 2D diesel fuel, when the cloud point is lower than 10° after-treatment technology designed to with a flash point of 125° F or greater, F, and that a reduction of the flash point lower hazardous diesel emissions work at standard temperature and pressure. in the final rule was appropriate. better when the sulfur content in the Many commenters objected to the Another commenter believed that the fuel is low. More effective strategies for requirement for ASTM D975 No. 2D diesel fuel autoignition point does not after-treatment technology will result in diesel fuel, stating that the reference to change in the lower range of flash point reduced hydrocarbons and carbon No. 2D fuel was a manufacturing for diesel-powered equipment, monoxide levels. Low sulfur fuel also Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55443 greatly reduces the sulfate production Paragraph (b) prohibits the addition of EPA Administrator. The EPA from the catalytic converters currently flammable liquids to diesel fuel. One registration process requires the in use in underground coal mines, commenter expressed concern that the submission of extensive test data for thereby decreasing exhaust pollutants. proposed rule would not prohibit specific health effect endpoints, as well Today, low sulfur fuel is readily flammable liquids, such as gasoline, as a general systemic and organ toxicity available and widely used by on-road from being mixed with diesel fuel literature search on the health and commercial vehicles. For these reasons, underground to assist in machine welfare effects of the fuel additive the final rule requires that diesel fuel starting and operation during cold emissions, including the characteristics contain no greater than 0.05 percent weather. Because gasoline is highly of the emissions. Registered fuel sulfur, which fuel is readily available flammable, adding it to diesel fuel could additives are maintained by the EPA on nationwide. cause the flash point of the fuel to drop a list that is available to the public. Under § 70.1900 of the proposal, mine below 100° F (38° C) and transform the The requirements of this paragraph do operators would have been required to fuel into a flammable liquid. Further, not place an undue burden on mine provide MSHA with a certified use of gasoline as a diesel fuel additive operators, because operators need only statement if the sulfur content of the could ruin an engine’s fuel system by verify with their fuel supplier or fuel used in their diesel equipment was reducing the lubricating properties of distributer that the additive purchased 0.25 percent or less. This provision was the fuel. In response to these concerns, is included on the EPA registration list. included with exposure monitoring the final rule prohibits the addition of Section 75.1902 Underground Diesel requirements because use of high sulfur flammable liquids, such as gasoline, to Fuel Storage—General Requirements fuel under the proposed rule would diesel fuel. This restriction will promote This section of the final rule provides have triggered weekly area sampling the safe use of diesel fuel underground. general requirements for the safe storage requirements. Specifications for diesel Kerosene, on the other hand, is of diesel fuel underground. These fuel are now addressed in paragraph (a) commonly used as a cutter stock for lowering the cloud point in diesel fuel. requirements are intended to minimize of this section of the final rule, and the risks associated with fire hazards in the operator’s obligation to verify the fuel’s Because kerosene has a flash point above 100° F (38° C) it is classified as areas where diesel fuel is stored. This sulfur content has also been included in section limits the receptacles that may this section. a combustible rather than a flammable liquid and therefore may be added to be used for diesel fuel storage The final rule requires the mine diesel fuel under the final rule. underground to diesel fuel tanks and operator to provide to an authorized Paragraph (c) permits only diesel fuel safety cans; allows only one diesel fuel representative of the Secretary, upon additives that have been registered with transportation unit in a temporary fuel request, evidence that the diesel fuel the Environmental Protection Agency storage area; places a 1000-gallon limit purchased for use in diesel-powered (EPA) under 40 CFR Part 79 [59 FR on the capacity of stationary diesel fuel equipment underground meets the 33042] to be used in diesel-powered tanks in permanent fuel storage requirements of paragraph (a). This will equipment underground. Because the facilities; and limits the location of not be a burdensome requirement. proposed rule was silent on whether the permanent fuel storage facilities and MSHA anticipates that the mine use of diesel fuel additives would be temporary fuel storage areas operator’s contract with the mine’s fuel permitted, a number of commenters underground. supplier will document the type of fuel raised additives as an issue and A number of commenters were that is being purchased. The verification advocated that the final rule permit concerned about the additional hazards required under this paragraph may also them to be used. These commenters that would be created by the storage of be provided by a copy of a fuel analysis, stated that additives served to depress a combustible—diesel fuel—in which can be performed by a supplier’s the cloud point of diesel fuel during underground coal mines. Some quality control laboratory or a private cold weather to prevent jelling of the commenters opposed any type of fuel laboratory at minimal or no cost to the fuel. A cloud point depressant works by storage underground, while others operator. MSHA recognizes that breaking down larger size crystals to believed that diesel fuel can be safely purchase orders and invoices may be smaller crystals, thus allowing the fuel stored. Those commenters who opposed kept at a mine’s administrative office to flow more freely. Several commenters the storage of diesel fuel underground rather than at the mine site. Although expressed concern about the effect stated that it would present numerous the final rule does not specify a location additives may have on diesel exhaust safety hazards, including an increase in or manner of recordkeeping for the particulate emissions when mixed with the probability of the fuel becoming document evidencing diesel fuel diesel fuel. Other commenters wanted to involved in a mine fire and cutting off content, the mine operator may choose be permitted to use additives, such as the avenue of escape for miners. These to keep an additional copy of the barium additives, with diesel fuel used commenters recommended that document to be easily accessible to a to power equipment underground. One language in existing MSHA regulations representative of the Secretary. A small commenter stated that MSHA should at § 31.9 (c)(2) and (c)(3) be incorporated recordkeeping burden is estimated for encourage further research on the use of in the final rule. These regulations this requirement under the Paperwork additives. address refueling of diesel locomotives Reduction Act of 1995. The wide variety of diesel fuel underground and provide that, Paragraphs (b) and (c) of this section additives currently on the market makes whenever possible, locomotive fuel of the final rule address additives for control of the use of these additives tanks be filled on the surface; contain diesel fuel used in diesel-powered difficult. The final rule addresses this specific requirements when locomotives equipment in underground coal mines. issue by limiting fuel additives used are refueled underground; and prohibit The requirements of these two underground to those registered under underground fuel storage. paragraphs were not part of the proposal specific EPA regulations. Commenters opposed to allowing but have been added to the final rule in EPA regulations at 40 CFR Part 79 storage of diesel fuel underground response to commenters’ concerns over forbid manufacturers from placing any suggested that mine operators could file the types of substances that could be fuel additive into commerce unless the a petition for modification under safely added to diesel fuel. additive has been registered with the Section 101(c) of the Mine Act if they 55444 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations had a compelling need to store diesel instead sets specific gallon limits on the facilities to 1,000 gallons. It is important fuel underground. These commenters capacity of underground fuel storage to note that, while the total capacity of felt that a case-by-case approach would tanks. the fixed tanks is set, there is no limit more effectively address hazards The final rule establishes safety on the number of stationary tanks that associated with diesel fuel storage. requirements, including design and may be located in the facility. This Commenters were also concerned performance specifications for storage means that the 1,000 gallons may be with maintenance and upkeep of diesel tanks, transportation vehicles, and cans stored, for example, in two 500-gallon fuel areas. These commenters stated that for fuel storage; a limitation on the tanks or four 250-gallon tanks. fuel spills and hose leakage could number of fuel storage units that may be Like the final rule, the proposal possibly contribute to fire hazards. parked on a section; and a limitation on prohibited storage of more than 1,000 Commenters expressed reservations the capacity of underground fuel storage gallons of diesel fuel in a permanent about storage, transport, and dispensing facilities. MSHA believes that these facility. Commenters’ opinions of this of diesel fuel from 5-gallon cans, requirements will provide a significant provision varied, from those who particularly during refueling, stating measure of additional protection from opposed any kind of fuel storage that temporary storage should not be the hazards associated with the storage underground, those who recommended allowed. These commenters wanted and handling of diesel fuel, and permit limited storage, to those who believed assurance that if diesel fuel storage were efficient and safe transportation and that diesel fuel could be safely stored allowed underground, protections such refueling of diesel equipment in underground. The final rule balances as fireproof enclosures and pumps and underground coal mines. Under the the concerns raised by those opposed to other provisions that address fuel final rule, miners are afforded storage against the need to store fuel spillage would be provided. protections that are equal to or greater underground to minimize other fuel Some commenters suggested that than the protections of existing handling hazards. The fire protection diesel fuel storage should be allowed standards. and construction requirements for fixed only if it is tightly controlled, and that Paragraph (a) of this section provides storage tanks and permanent storage fuel spills must not be tolerated in areas that diesel fuel shall be stored in: (1) facilities in §§ 75.1903 and 75.1904 of of the mine that cannot be cleaned. A Diesel fuel tanks in permanent the final rule appropriately and number of commenters recommended underground diesel fuel storage adequately address fire and other setting limits on the maximum quantity facilities; (2) diesel fuel tanks on diesel hazards involving diesel fuel, and, when of fuel allowed on a production section, fuel transportation units in permanent satisfied, will afford safe storage of the ranging from a 24- to a 48-hour supply. diesel fuel storage facilities or fuel quantities allowed under this Other commenters supported permitting temporary diesel fuel storage areas; or section. diesel fuel storage underground, but (3) safety cans. The proposal did not raised a number of issues related to fuel explicitly limit fuel storage Under the final rule, the storage of storage, such as appropriate underground to tanks and safety cans, safety cans and parking of fuel construction requirements for and would have required that diesel fuel transportation units in permanent underground facilities; fire protection; be transported in containers specifically storage areas would also be permitted. and the logistics of transporting and designed for the transport of diesel fuel. The 1,000-gallon limit applies to the dispensing fuel in an underground MSHA recognizes that large quantities total capacity of stationary tanks in the environment. One commenter cited of diesel fuel must be used in some fuel storage facility, and the quantity of years of positive industry experience mines. However, to protect against fires, fuel in safety cans stored or fuel with safe underground storage and spills, and other hazards, large transportation units parked in the transport of diesel fuel. He stated that quantities can only be stored in facility would not be counted as part of his own experience in safely operating permanent facilities under this final the 1,000-gallon limitation under this an underground coal mine, including rule. paragraph. diesel fuel delivery, storage, transport The final rule permits fuel storage in The final rule permits storage of and transfer, countered the proposition tanks on fuel transportation units, but diesel fuel on a working section or in an that proliferation of diesel fuel storage only under certain conditions and in area of the mine where equipment is facilities would occur in an limited quantities spelled out in other being installed or removed, but places uncontrolled manner, resulting in requirements in this section. A number specific restrictions on such storage in unlimited quantities of diesel fuel being of commenters recommended that the paragraphs (c)(1) through (c)(4) of this stored in underground mines. rule accommodate the need for fuel section. MSHA has carefully reviewed all of supplies to move as the production The proposal did not separately the comments in determining how to section moves. Other commenters address storage of diesel fuel on a address the storage of diesel fuel expressed concerns that multiple mobile working section. MSHA received many underground. Both MSHA and industry storage tanks might be located on the comments both opposing and experience demonstrate that diesel fuel section at the same time, exposing supporting section fuel storage. Those can be safely stored underground in miners to hazards, particularly from fire. opposed stated that storage on the limited quantities under controlled The final rule also allows diesel fuel to section would present fuel leakage and conditions. Allowing limited storage on be stored in safety cans. spillage hazards, creating fire and the section will minimize other safety The restrictions contained in escape hazards for miners. Those concerns cited by commenters, such as paragraph (a) respond to commenters’ supporting fuel storage on the section fuel leaks and spills. Underground fuel concerns that storage of diesel fuel stated that, because the production storage will also eliminate the need for underground would lead to prolific, section advances rapidly, the final rule frequent fuel trips, thus reducing uncontrolled storage practices, and must permit diesel fuel storage on the hazards that are inherent in the strictly limit the locations and section. These commenters further transportation of diesel fuel. MSHA receptacles for diesel fuel storage. stated that properly designed fuel does not believe that it is useful or Paragraph (b) of this section limits the transportation units should be allowed practical to restrict diesel fuel quantities capacity of stationary diesel fuel tanks on mining sections, as long as they are based on projected use. The final rule in permanent underground fuel storage parked within reasonable proximity to Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55445 the work area and comply with specific for fuel tanks are contained in § 75.1904 was inconsistent with a prohibition safety requirements. of the final rule. against welding and cutting within 50 MSHA agrees with commenters who Paragraph (d) of this section of the feet of storage facilities. The high supported allowing mobile fuel storage final rule imposes limitations on the volume of vehicle traffic in and out of on the section, which can move as location of permanent fuel storage the area of the shop warrants a greater mining progresses, but also agrees with facilities and temporary fuel storage separation distance than for cutting and commenters who believe that such areas, and has been revised from the welding alone. storage must be carefully controlled. In proposal for clarity. This aspect of the Finally, the final rule does not adopt response to these concerns, paragraph final rule requires diesel fuel to be kept the recommendation of the commenter (c)(1) permits only one temporary diesel out of areas where the potential for fire who advocated allowing a permanent fuel storage area for each working is greatest. The final rule prohibits fuel storage facility closer to a shop than section or in areas of the mine where permanent storage facilities and 100 feet, to allow better ventilation of equipment is being installed or temporary storage areas from being both the shop and the storage facility. removed. Paragraph (c)(2)(i)–(iii) located within 100 feet of shafts, slopes, The fire protection afforded by the 100- requires that the temporary fuel storage shops, or explosives magazines, or foot separation distance outweighs any area be located within 500 feet of the within 25 feet of trolley wires or power advantage in ventilation that would loading point; within 500 feet of the cables, or electric equipment not result from allowing a lesser distance. projected location of the future loading necessary for the operation of the Paragraph (d)(3) provides that point where equipment is being storage facilities. The fuel storage permanent fuel storage facilities and installed; or within 500 feet of the facilities or areas must also be in a temporary fuel storage areas must be in location of the last loading point where location protected from damage by other a location that is protected from damage equipment is being removed. This mobile equipment. from other mobile equipment. Under the requirement will ensure that the fuel Some commenters stated that the proposal, fuel storage facilities would storage area will be located close proposed requirement that diesel fuel have been required to be at least 25 feet enough to miners to allow any hazards storage facilities be located at least 100 away from haulageways, which are that may develop to be quickly feet away from shafts, slopes, or shops entries where miners and materials are addressed. This provision is a logical was not adequate in light of the amount normally transported. The rationale for outgrowth of the rulemaking because it of diesel fuel involved and the amount this requirement was that areas where addresses commenters’ concerns that of spillage that could occur. Another diesel fuel is stored should be out of the fuel storage be allowed in close commenter stated that requiring shops line of mine traffic, where tanks would proximity to the mining section, while to be located at least 100 feet away from be exposed to damage from collision at the same time recognizing that safety fuel storage facilities was inconsistent with other mine vehicles. Instead of concerns dictate limitations on where with proposed § 75.1903(c), which adopting the proposed requirement, the fuel may be stored. would have prohibited welding and final rule takes a performance-oriented Consistent with the final rule’s cutting within 50 feet of storage approach by providing that storage approach of allowing limited storage on facilities. The commenter also noted facilities and areas be located where the section, paragraph (c)(3) prohibits that in some cases it may be best to they are protected from damage. This more than one diesel fuel transportation locate the fuel storage facility within responds to a commenter who indicated unit at a time to be parked in a 100 feet of the shop near a return, the importance of keeping fuel storage temporary diesel fuel storage area. This because this would provide the best facilities out of the line of traffic. requirement is consistent with sound direct ventilation to the return for both Paragraph (e) prohibits permanent fire protection engineering principles the shop and storage facility, but that fuel storage facilities from being located for the storage and handling of diesel the proposed 100-foot requirement in the primary escapeway, which fuel, and is supported by experiences in could prevent this. The final rule, like provides miners with a route of escape the field and applicable NFPA the proposal, adopts separation from the mine in the event of an standards. It should be noted, however, distances that are consistent with the emergency. This restriction was not that a ‘‘parked’’ diesel fuel National Fire Protection Association 123 included in the proposal, but has been transportation unit under this paragraph Standard for Fire Prevention and added to this section of the final rule in would not include a unit that is in the Control in Bituminous Coal Mines. response to commenters’ concerns process of refueling equipment or that is NFPA 123 requires fixed combustible relative to diesel fuel storage facilities’ itself being refueled. This means, for liquid storage areas to be located a impeding miners’ ability to escape in example, that a temporary fuel storage minimum of 100 feet from explosive the event of a mine fire, explosion, or area could contain more than one diesel magazines, electrical substations, shaft other emergency. This prohibition fuel transportation unit at one time, so stations, and shops. MSHA disagrees recognizes that the primary escapeway long as only one unit is parked. Any with commenters who considered a 100- should be kept clear of obstructions and other units in the area must be in use foot separation distance insufficient in potential hazards, to ensure that miners and attended. light of the amount of diesel fuel that are able to safely evacuate the mine in The proposal would have allowed could be stored. The design, the event of an emergency. fuel to be stored in free-standing tanks construction, and fire suppression in mobile diesel fuel storage facilities. system requirements in the final rule Section 75.1903 Diesel Fuel Storage The final rule allows fuel to be stored that apply to permanent fuel storage Facilities And Areas; Construction And in temporary fuel storage areas, but only facilities provide adequate protection to Safety Precautions in tanks on diesel fuel transportation miners with a 100-foot separation This section of the final rule units. These units are specially designed distance. establishes construction and design to provide both mobility and protection MSHA also disagrees with the requirements for permanent diesel fuel for the fuel tanks. Protection is provided commenter who believed that requiring storage facilities and temporary diesel by requiring the tank to be permanently shops to be located at least 100 feet fuel storage areas. These requirements affixed to the transportation unit. The away from fuel storage facilities, where are intended to minimize fire hazards construction and design requirements cutting and welding are likely to occur, associated with storage of diesel fuel 55446 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations underground, and provide safety storage facilities have therefore been requirements for construction of storage protections for miners during the addressed separately from those for facilities with noncombustible materials storage, transportation, and dispensing temporary facilities in the final rule. and with a means for automatic of diesel fuel. The final rule provides a more practical enclosure were too vague and not The proposal did not distinguish approach for the construction and stringent enough. These commenters between construction and design design of areas designated for temporary recommended that MSHA require at a requirements for those diesel fuel fuel storage, and eliminates several minimum that diesel fuel be stored in storage facilities that are fixed and proposed construction requirements an enclosure with at least a 2-hour fire- remain in one location indefinitely, and that are unnecessary from a fire resistance rating. those that move as the production protection engineering standpoint. Paragraph (a)(1) provides that section advances. A number of Specifically, the final rule does not permanent underground fuel storage commenters stated that the proposed adopt the proposed requirements that facilities shall be constructed of requirements were suitable for temporary fuel storage areas be noncombustible materials, including permanent facilities but were constructed of noncombustible material, floors, roofs, roof supports, doors, and unnecessary and impractical for be provided with a self-closing door, door frames. Exposed coal within the facilities that would be temporary. Some and be provided with a fire suppression fuel storage areas is required to be commenters were concerned that some system. Because construction of covered with noncombustible material. mine operators would not be able to temporary storage areas with these If they are used, bulkheads are required complete construction of the temporary features would make it extremely to be built of or covered with facility before the facility would have to difficult for these facilities to be built as noncombustible material. be moved to keep pace with the fast as mining progressed, transportation The proposal would have required advancing section. In support of this of fuel between permanent storage that the storage facility be constructed of position, commenters stated that facilities and the section would increase noncombustible material, a term that compliance with the proposed significantly. The risk of an accident was not specifically defined. As requirements would be impractical and involving a fuel transportation unit discussed above, the term would force mine operators to transport would also increase, and with it the risk ‘‘noncombustible materials’’ is defined fuel to the section to refuel equipment of fuel spillage and the risk of fire. The in § 75.1900 of the final rule as materials on a shift basis, creating increased final rule therefore reduces the meeting the equivalent of a one-hour hazards due to transportation. construction requirements for temporary fire resistance rating test. Paragraph Another commenter voiced similar fuel storage areas, to provide better (a)(1) also incorporates NFPA 123 concerns, noting that the rapid advance control of the fire hazards inherent in requirements. These requirements of mining in modern underground coal fuel transportation and storage. clarify which components of the facility mines makes it more practical for fuel Paragraphs (a)(1) through (a)(7) of this must be noncombustible, including stations to be advanced with mining section establish construction and floors, roofs, roof supports and door activity, and that properly designed design requirements for permanent frames, and specify that exposed coal transportation units should be allowed underground diesel fuel storage must be covered with noncombustible on mining sections as long as they are facilities. Consistent with basic fire material and bulkheads either built of or parked in accordance with specific protection engineering principles, the covered with noncombustible materials. safeguards in reasonable proximity to final rule requires permanent storage MSHA’s Approval and Certification the working area. The commenter stated facilities to be constructed of Center has established guidelines to that a specific parking requirement with noncombustible materials; provided determine the suitability of trowelable proper safeguards would be much safer with self-closing doors or a means for or sprayable coatings for protecting coal than the requirements in MSHA’s automatic enclosure, and with a means surfaces against fire, which meet the proposal. Another commenter stated for entry and exit after closure; requirements of paragraph (a)(1). In that the Diesel Advisory Committee ventilated with intake air; equipped addition, textile-type thermal barriers made general recommendations for with an automatic fire suppression may also be used to provide isolation of permanent and temporary storage system; and provided with a means to the combustible surfaces within the facilities that were not intended to contain diesel fuel and with a concrete storage facility. Materials meeting the eliminate fuel trailers and their use. On floor or equivalent to prevent spills from ‘‘Performance Criteria for Materials used the other hand, several commenters saturating the mine floor. These for Welding and Cutting Curtains and/ believed that the fact that the proposal requirements are intended to reduce the or Thermal Barriers in Underground would not have required mobile storage fire hazards inherently present in areas Coal Mines’’ (Luzik, MSHA Report No. facilities to have a drain system and where diesel fuel is stored and increase 01–098–92) may also be used. MSHA sump would provide no incentive for protection in the event of a fire. has also established guidelines for operators to construct fixed facilities, The proposal contained requirements noncombustible doors. Additionally, and that the construction of an similar to those in the final rule, but the MSHA has tested certain designs of unlimited number of mobile facilities final rule has been modified in response high-temperature silica fabric curtains would result. to commenters. Some commenters were and published the results in Coal In response to the comments, the final generally opposed to the proposed Magazine, June 1993, pp. 102–104, rule reflects a clear distinction between requirements, stating that diesel fuel ‘‘MSHA Develops New Fire Resistant construction and design requirements systems currently in use do not pose the Check Curtains’’. For purposes of the for permanent underground diesel fuel degree of hazard that would warrant final rule, MSHA will accept as doors storage facilities and temporary such extensive requirements. One the curtain constructions described in underground diesel fuel storage areas. commenter stated that the requirements this article. Facilities constructed to MSHA recognizes that temporary diesel of the proposal suggested that the meet these requirements will afford fuel storage areas move frequently as hazards of diesel fuel storage exceed the protection to miners working in the mining advances, and that construction hazards of the storage of explosives production areas inby in the event of a specifications must take this fact into underground by several-fold. Other fire and should provide ample time for account. Requirements for permanent commenters stated that the proposed miners to exit. Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55447

Paragraph (a)(2) of the final rule installations and with the current the engine must be vented directly to requires that permanent fuel storage definition of ‘‘return air’’ in existing return air to prevent unnecessary facilities be provided with either self- § 75.301, is intended to eliminate the exposure of miners to diesel exhaust. closing doors or a means for automatic confusion caused by the phrase Paragraph (a)(5) adopts the enclosure. This paragraph provides ‘‘directly to a return air course’’. The requirements of the proposal and mine operators with flexibility in the final rule clarifies that the intake air provides that permanent fuel storage method used to comply with the final ventilating the fuel storage facility may facilities must be equipped with an rule. The proposal would have required not be used to also ventilate active automatic fire suppression system that that the facility be provided with a working places. Thus, the air may be meets the requirements of § 75.1912 of means for automatic enclosure, which coursed into other entries before being the final rule. This paragraph also suggests that the door must be closed by coursed into a return, so long as the air includes an additional requirement, not powered means, such as electrically or is not used to ventilate a working place. included in the proposal, that actuation pneumatically. The proposal did not Temporary underground diesel fuel of the automatic fire suppression system specifically include non-powered self- storage areas are not required to be shall initiate the means for automatic closing doors as an alternative, although vented directly to the return in the final enclosure. One commenter stated that they were not intended to be excluded. rule, in response to commenters who the proposed requirement for automatic Self-closing doors serve the same advocated more flexibility and less enclosure was not sufficiently stringent, function in containing a fire as restrictive requirements for temporary that these storage facilities should be automatic-closing doors, and the final fuel storage that moves as mining designed with fire containment rule clarifies that they are permitted. progresses. capability, and that automatic enclosure Paragraph (a)(3) requires that If the permanent facility is equipped should be triggered by actuation of the permanent fuel storage facilities be with self-closing doors that would automatic fire suppression system. provided with a means for personnel to normally be closed, an opening will MSHA agrees, and the final rule enter and exit the facility after closure. have to be provided in the doors to enhances the capabilities of the This provision has been added to the allow intake air to flow through the automatic fire suppression system by final rule to ensure that miners who are facility. This opening will prevent the requiring that initiation of the system inside the fuel storage facility when the build-up of diesel fuel vapors in the will activate closure of the doors to the automatic enclosure activates will be facility and prevent smoke generated facility if self-closing doors are not used. able to exit from the facility. This during the incipient stages of a fire from Operation of the system in an requirement is also intended to allow entering the intake air courses. The environment with minimal air miners to gain access to the facility to opening is not intended to prevent movement, which would exist when the suppress an incipient fire that may smoke and other products of doors are closed, will improve the develop. This paragraph also requires a combustion from backing up into the effectiveness of fire suppressant agents means for exit and entrance when self- intake airway if the fire is not in extinguishing a fire. closing doors are used. Self-closing extinguished in its incipient stages. For Paragraph (a)(6) requires that doors that are specifically designed to automatic closing doors, which would permanent fuel storage facilities be be manually opened would be in normally be open, a vent in the doors provided with a means of containment compliance with this paragraph. This may not be needed since enclosure is capable of holding 150 percent of the aspect of the final rule is necessary to required to seal the facility to cut off maximum capacity of the fuel storage prevent miners from being trapped in oxygen to the fire after the doors have system. This provision is intended to the facility, and is a logical outgrowth closed. address hazards associated with diesel of the rulemaking. The requirements of paragraph (a)(4) fuel spillage and leakage—both slip and Paragraph (a)(4) of this section of the are also intended to ensure that, if an fall and fire hazards. The proposal final rule requires that permanent fuel enclosure has self-closing doors that are would have required that permanent storage facilities be ventilated with normally closed, precautions are taken facilities be equipped with a drain intake air that is coursed into a return to adequately vent diesel exhaust system and a sump capable of holding air course or to the surface and that is emissions from the facility. Such 150 percent of the maximum capacity of not used to ventilate working places, precautions could include the use of a the fuel storage system. Instead of using ventilation controls meeting the regulator in the door to bring air into the requiring a drain system and sump, the requirements of existing § 75.333(e). The facility that would then be vented to the final rule requires a ‘‘means of proposal would have required that both return. In the case of a diesel fuel containment’’. This change fixed and mobile fuel storage facilities transportation unit that must have its acknowledges that a suitable drain be ventilated directly into a return air engine running to dispense fuel, the system is generally considered overly course using noncombustible materials unit’s exhaust could be vented either difficult to design and install, and will for ventilation controls. Some directly to the return, if it incorporates also allow more flexibility in design of commenters stated they were already a power package approved under fuel containment systems. Additionally, venting fuel storage areas in their mines subpart F of part 7, or into intake air spilled diesel fuel is best left confined directly to the return. which is coursed directly to a return air in the facility where the fire suppression The final rule adopts the proposed course. A fuel transportation unit that is system is located. One commenter requirement only for permanent fuel equipped with a subpart F-approved offered a case that illustrates this storage facilities, with some power package will have fire and principle where the fuel escaped into modification. The final rule requires explosion prevention features that the mine during a fuel spill because the that the facility be ventilated with would permit the engine to exhaust drain valve at the bottom of the remote intake air coursed to a return air course directly into the potentially methane- sump that serviced the storage area was or to the surface that is not used to rich atmosphere of the return. When the left partially open. ventilate working places. This language, unit is exhausted into intake air, the fire It is important to note that, in cases which is consistent both with existing and explosion prevention features of a where fuel is piped from the surface to requirements at § 75.340 for the subpart F power package are not an underground fuel storage facility, the ventilation of underground electrical required. However, the emissions from containment capacity must account for 55448 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations the total fuel capacity. This means that should be noncombustible and pound multipurpose dry chemical type the capacity of the containment must impermeable to oil and diesel fuel. fire extinguishers, and would not have equal at least 150 percent of the surface These commenters argued persuasively required that rock dust be provided. tank’s capacity, plus 150 percent of the that a requirement for a concrete floor One commenter recommended that underground tank’s capacity, plus 150 would preserve the integrity of a foam generating machines or fire percent of the volume of the piping noncombustible facility. extinguishers of 150 pounds or more be system connecting the surface tank to Under the requirements of this required. The final rule does not adopt the underground tank. In cases where paragraph a permanent fuel storage the suggestion of this commenter, there is no underground tank, the facility must be provided with a because MSHA considers it too maximum capacity includes the surface competent floor made of concrete or an hazardous to fight a diesel fire storage tank and the piping system from equivalent material. The term underground that cannot be the surface. Where a stationary tank is ‘‘competent’’ is used to make clear that extinguished in its incipient stages. The located in a permanent facility and is a cracked concrete floor or a porous fire extinguishers and fire suppression not connected to a surface tank, the mine floor would not satisfy this equipment required by this section are means of containment must account for requirement. A brattice-type lining or intended to be used to extinguish small 150 percent of the capacity of the largest rubber membrane would not be fires, such as could occur on equipment stationary tank. If the underground fuel considered equivalent because it could in the facility. storage facility is not equipped with a easily be torn during refueling of The final rule redefines the type of stationary tank but is used for the vehicles, and diesel fuel could leak dry chemical extinguishers that are storage of only diesel fuel transportation through and accumulate underneath. required, based on specifications units, the single largest transportation This provision has been added to the recommended by the National Fire unit tank would be counted in the final rule in direct response to Protection Association for the particular maximum capacity for purposes of this commenters, many of whom testified at hazard involved. The rating of the fire paragraph. However, diesel fuel the Agency’s public hearings on the extinguishers has been adopted from transportation units that may be parked proposal. MSHA believes that this NFPA 123 and is in accordance with in permanent fuel storage facility where provision constitutes a logical NFPA 10–Standard for Portable Fire a piping system from the surface outgrowth of the proposal because of Extinguishers. Also, extinguishers must terminates or where a larger stationary commenters’ stated concerns in be listed or approved by a nationally tank is housed would not be considered ensuring that spilled fuel will not recognized independent testing part of the ‘‘fuel storage system’’, and saturate the mine floor and create a fire laboratory, which provides assurance the capacity of the transportation unit hazard. that the extinguishers will perform tank would not be included. The The requirements of paragraph (b) of effectively in the event of a fire rationale behind this is that only one this section of the final rule apply to emergency. The final rule requires that component in a fuel storage facility both permanent underground fuel the fire extinguishers be located so that would be expected to fail at one time, storage facilities and temporary miners will have quick access to them such as a burst piping system or a leak underground fuel storage areas. This in the event of a fire. To allow flexibility in a stationary tank or in a paragraph requires that these storage in complying with the requirements of transportation unit tank. facilities or areas be: equipped with a this paragraph, the final rule addresses In support of the requirement of this 240 pounds of rock dust and at least two the location of only one fire paragraph, one commenter noted that a fire extinguishers, or, in the alternative, extinguisher. The location of the other fuel spill occurred when valves in the with at least three fire extinguishers; be extinguisher should be determined piping system from the surface storage conspicuously marked; and be based on mine conditions and the tank failed, allowing the static head maintained to prevent the accumulation particular usage of the facility. The final pressure to be imparted on the of water. These basic requirements rule specifies that the fire extinguisher dispensing hose which caused it to address potential fire hazards in these be located upwind of the facility, which rupture and fuel to escape. facilities and ensure that mine has been added to ensure that if a fire Commenters stated that it is important personnel are aware of the presence and occurs miners will be able to reach the that the storage location be designed to location of such facilities. fire extinguisher without being exposed contain fuel spills and tank ruptures to Paragraph (b)(1) requires that to the heat or smoke of the fire. stop the spread of fuel. The final rule’s permanent fuel storage facilities and The final rule adds a requirement for containment capacity requirement of temporary fuel storage areas be 240 pounds of rock dust to be kept in 150 percent of the capacity of the fuel equipped with at least 240 pounds of the storage facility in response to system will provide a prudent safety rock dust and provided with two comments concerning the effectiveness factor in view of the potential fire portable multipurpose dry chemical of rock dust in fighting diesel fuel fires hazard created by the release of large type (ABC) fire extinguishers that are and the ability of rock dust to contain amounts of diesel fuel into an listed or approved by a nationally spills. The requirement for 240 pounds underground mine. recognized independent testing of rock dust is consistent with Paragraph (a)(7) has been added to the laboratory and have a 10A:60B:C or § 75.1100–2(f), which requires 240 final rule and requires that permanent higher rating. Both extinguishers must pounds of rock dust to be provided at fuel storage facilities be provided with be easily accessible to personnel, and at permanent underground oil storage a competent concrete floor or equivalent least one must be located outside of the stations, and is included in the final to prevent fuel spills from saturating the facility or area, upwind of the facility in rule as an added measure of fire mine floor. This provision is intended to intake air. Paragraph (b)(2) provides, as protection in response to the concerns ensure that spilled diesel fuel can be an alternative to the requirement of of commenters. However, paragraph easily cleaned up and will not paragraph (b)(1), that three fire (b)(2) allows an additional fire accumulate, creating a fire hazard. This extinguishers may be provided. extinguisher to be substituted for the requirement is added in the final rule in The proposal would have required rock dust required under paragraph response to commenters who suggested fixed and mobile fuel storage facilities (b)(1), which is consistent with that the floor of the storage facility to be equipped with at least two 20- provisions in existing petitions for Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55449 modification for fire protection at aspect of the proposal, which is Section 75.1904 Underground Diesel electrical installations. The consistent with NFPA requirements. A Fuel Tanks And Safety Cans requirements of the final rule strike a review of MSHA’s accident data reveals This section includes requirements balance between those commenters that a fatal accident occurred when the for the design of diesel fuel tanks and concerned about the need for additional victim was welding a diesel fuel storage safety cans and for emergency venting fire protection provided by rock dust in tank. The victim had drained the tank, devices for diesel fuel tanks for venting locations where diesel fuel is stored, which had been filled with water, and vapors to protect against the buildup of and those who were concerned that the attempted to repair a small leak which pressure in the tank, which could lead storage of rock dust in those locations remained in the tank. Vapors from the to its rupture if the tank is exposed to was inadvisable in mines that tended to residual fuel were ignited by the heat of fire. The requirements of this section are be wet. welding, and the tank exploded. The responsive to comments and are Paragraph (b)(3) adopts the requirements of this paragraph are consistent with NFPA, Underwriters requirement of the proposal that Laboratories, and American Petroleum permanent diesel fuel storage facilities intended to address such hazards, and and temporary fuel storage areas be recognize that welding can be Institute standards for storage tanks for identified with conspicuous markings performed safely underground as long combustible liquids. A number of designating diesel fuel storage. The as appropriate safeguards are followed. commenters suggested restructuring and proposal would have required the Additionally, the large size of certain reorganizing the proposed design facilities to be designated as vessels used for the storage of diesel fuel requirements for diesel fuel tanks, and ‘‘combustible liquid storage,’’ but underground would make it impractical the final rule is revised in response to MSHA has concluded that precise to restrict welding of such containers to these comments. identification as areas of diesel fuel the surface. The precautions in Paragraph (a) of this section of the storage is more appropriate, and will paragraph (d)(1) include thoroughly final rule contains construction and ensure that mine personnel are aware of purging and cleaning or inerting the location requirements for underground the locations where diesel fuel is stored pipelines, containers, or tanks before diesel fuel tanks in permanent underground. welding or cutting, with a vent or underground fuel storage facilities and temporary underground fuel storage Paragraph (b)(4) requires that fuel opening provided in the container or areas. These requirements are intended storage facilities or areas be maintained tank to release pressure before heat is to guard against leakage of diesel fuel to prevent the accumulation of water. provided. The final rule also prohibits and to minimize fire hazards. The proposal would have required that diesel fuel from entering pipelines, fixed and mobile underground storage Paragraph (a)(1) requires that tanks, or other containers that have been underground diesel fuel tanks have steel facilities be located in an area as dry as welded, soldered, brazed, or cut until practicable, a concept which several walls of a minimum 3⁄16-inch thickness the metal has cooled to ambient or walls made of other metal of a commenters considered to be vague and temperature. A slight change has been potentially difficult to comply with. thickness that provides equivalent made in the language of this This requirement has therefore been strength. This specification has been requirement to conform the references revised to require that permanent added to the final rule to ensure that underground diesel fuel storage to the diesel fuel containers that are the diesel fuel storage tanks are properly facilities and temporary fuel storage subject of these requirements. The designed for their intended purpose, areas be maintained to prevent the phrase ‘‘pipelines, tanks, or other and in response to commenters who accumulation of water. This provision containers’’ is used throughout. were concerned that diesel fuel tanks be recognizes that tanks or other Additionally, the reference in proposed durably constructed. MSHA explored components of the storage facility may paragraph (d)(1) to containers or tanks alternatives for an objective corrode as a result of exposure to water. that ‘‘have contained combustible or measurement of durable construction. Additionally, accumulated water can flammable materials’’ has been changed The requirement of this paragraph is increase the fire hazard present by a fuel in the final rule to pipelines, tanks or consistent with prevailing industry spill, because diesel fuel will float on other containers ‘‘that have contained standards, and is intended to serve as a top of water and may be spread more diesel fuel,’’ to eliminate the minimum design standard for easily throughout the storage facility. inconsistency that existed between this substantially constructed tanks. This The requirement of this paragraph provision and other language in this requirement is derived from Department addresses these hazards. paragraph and to clarify the scope of of Transportation (DOT) Spec. 51 Paragraph (c) adopts the proposed these requirements. Section 178–245–2(b), and is consistent prohibition on welding or cutting, with DOT requirements for over-the- One commenter recommended that a except as provided in paragraph (d) of road vehicles that transport diesel fuel. cleanup program be required for this section, from being performed This specification is also recognized by within 50 feet of a diesel fuel storage underground fuel storage facilities and the National Fire Protection Association facility or area. This requirement is areas. This recommendation has not in many of its fire protection standards intended to minimize fire hazards and been adopted in the final rule, because as a design guideline for tanks used for is consistent with National Fire existing § 75.400–2 already requires storage of combustible liquids. Protection Association requirements mine operators to establish and Manufacturers of fuel transportation (NFPA 123). No comments were maintain programs for regular cleanup units currently produce diesel fuel received on this aspect of the proposal. of accumulations of coal and other storage tanks with 3⁄16-inch thick steel Paragraphs (d)(1) and (d)(2) adopt the combustibles. MSHA will require that walls, and this specification will allow requirements of the proposal and set underground diesel fuel storage mine operators to buy diesel fuel tanks forth specific precautions to be followed facilities and areas be covered by the off-the-shelf. when welding, cutting, or soldering cleanup program under § 75.400–2, Paragraph (a)(2) requires diesel fuel pipelines, tanks, or other containers that which will ensure that these locations tanks to be protected from corrosion. might have contained diesel fuel. MSHA are kept clear of any combustible The proposal would have required these received only a few comments on this materials. tanks to be constructed of ‘‘noncorrosive 55450 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations material.’’ The language of the final rule final rule provides that the tank paragraph are commercially available will allow mine operators the option of supports must be made of and relatively inexpensive. The either using a tank that has been noncombustible material, which is requirement of this paragraph respond constructed of noncorrosive material, defined in § 75.1900 of the final rule, to concerns of commenters regarding the such as galvanized or stainless steel, or making unnecessary the reference in the hazards of fuel storage underground. of protecting a tank from corrosion that proposal to ‘‘concrete, masonry, Paragraph (b)(2) requires tethered or has been constructed of an oxidizing protected steel, or equivalent supports’’. self-closing caps for stationary tanks in material, such as common steel. The reference has therefore not been permanent underground diesel fuel Protection from corrosion can be adopted in the final rule. storage facilities, and self-closing caps achieved by applying a protective Paragraph (b)(1) requires diesel fuel for diesel fuel tanks on diesel fuel coating. tanks to be provided with devices for transportation units. The proposed rule Paragraph (a)(3) requires diesel fuel emergency venting that are designed to would have required self-closing caps tanks to be of seamless construction or open at a pressure that does not exceed for all diesel fuel storage tanks, and did fabricated with liquid tight welded 2.5 pounds per square inch. Under this not include the alternative of a tethered seams. MSHA has added this requirement, the venting devices must cap for stationary tanks. One commenter requirement to the final rule in response also meet minimum size requirements suggested that self-closing caps are not to comments raising concerns about the based on the capacity of the tank. The needed on fixed tanks since they are durability of fuel tanks in use rule provides minimum vent device unlikely to incur fuel spillage. The final rule permits the optional use of a underground, to provide an objective specifications for two ranges of tank measurement of substantial tethered cap for stationary tanks, which sizes: tanks with a capacity of 500 construction. Bolted and crimped joints adds flexibility and provides the same gallons or less and tanks with a capacity are not allowed under the final rule degree of protection as a self-closing of more than 500 gallons. The because they are prone to leakage. The cap. requirements of this section are requirement of this paragraph is Paragraphs (b)(3), (b)(4), (b)(5), and incorporated in NFPA standards for consistent with DOT Spec. 51 Section (b)(6) are unchanged from the proposal, portable tanks for transporting and 178–245–2(b), and is intended to ensure with the exception of paragraph (b)(6) storage of combustible liquids, as well that diesel fuel tanks are well which has been revised to reflect as in American Petroleum Institute constructed and designed not to leak. commenters’ concerns with respect to Paragraph (a)(4) requires that diesel design standards. These vents are the location of shutoff valves. Paragraph fuel tanks not leak, and has been added designed to activate at a pressure which (b)(3) addresses the size of vents, and in the final rule in response to is below the expected yield point of the will permit the free flow of fuel out of commenters’ concerns that tanks not tank and to provide the necessary the tank without creating a vacuum in contribute to a fire. Under the final rule, volumetric flow rate to maintain safe the tank that could damage its shell. all attachments to the tank, such as internal pressure if the tank shell were Paragraph (b)(4) addresses requirements vents, caps, hoses, pumps, valves, and to heat up as a fire develops. Opening for liquid tight connections, and will nozzles, must also be free from leaks. of the device will allow the vapors to be minimize the risk of leaks and the Many commenters were concerned with safely vented and will prevent the tank resulting risk of fire. Paragraph (b)(4)(i) leakage hazards presented by the storage from rupturing under this condition. requires that liquid tight connections for of diesel fuel underground. These Some commercially available all tank openings be identified by commenters were particularly emergency vents have been listed or conspicuous markings that specify the concerned about leakage in temporary approved by nationally recognized function. Because this provision is diesel fuel storage areas. MSHA believes independent testing laboratories and performance-oriented and allows the that the requirement of this paragraph, can be expected to provide adequate mine operator to choose the manner in in conjunction with the other provisions pressure relief in a fire situation. The which markings identify connections, in this final rule, will greatly minimize vent sizes required in the final rule were MSHA anticipates the burden time hazards associated with storage of diesel determined by design calculations under the Paperwork Reduction Act of fuel underground. outlined in National Fire Protection 1995 to be minimal. Paragraph (a)(5) requires stationary Association, Underwriters Laboratories, Paragraph (b)(5) addresses tanks in permanent underground diesel and American Petroleum Institute requirements for vent pipes, and will fuel storage facilities to be placed on standards for a range of tank sizes minimize the possibility of fuel leaking noncombustible supports so that tanks typical for underground diesel fuel from vent lines. are at least 12 inches above the floor. storage. These calculations take into Paragraph (b)(6) is derived from Under the proposal such tanks would account the probable maximum rate of proposed § 75.1906(c)(5) and requires have been required to be supported by heat transfer per unit area; the size of that shutoff valves be located as close as concrete, masonry, protected steel, or the tank and the percentage of the area practicable to the tank shell. The equivalent supports. Steel supports, likely to be exposed; the time required proposal would have required shutoff except for steel saddles less than 12 to bring the tank contents to a boil; the valves to be located within 1 inch of the inches from the floor, would have been time required to heat unwet portions of tank shell. Because shutoff valves that required to be protected by materials the tank shell or roof to a temperature extend for any distance from the fuel having a fire resistance rating of not less where the metal will lose strength; and tank can be inadvertently damaged or than two hours. The proposal did not the effect of drainage, insulation and the broken off, making it impossible to shut specify the minimum distance the tank application of water in reducing the fire off the flow of liquid from the fuel tank, must be from the floor. Commenters exposure and heat transfer. MSHA the valves must be located close to the stated that positioning tanks at least 12 believes that specifying the minimum tank where they are protected from inches off the floor would allow for size of vent for two ranges of tank sizes damage. However, one commenter was proper cleaning, rock dusting and quick is preferable to a requirement that concerned that the proposal was too detection of leaks. MSHA agrees with would require the operator to design restrictive because it may not always be these comments and has revised the vents for a given size. The types of possible from a practical standpoint to final rule accordingly. Additionally, the emergency vents required under this locate the shutoff valve within 1 inch of Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55451 the tank shell. The final rule responds required both a strength test and a included in the final rule. However, to this commenter’s suggestion by leakage test, at a pressure equal to the under the final rule, stationary tanks in allowing greater flexibility, and static head, for diesel fuel storage tanks permanent underground storage provides that the valve be located as before the tanks were placed in service. facilities must be placed on close as practicable to the tank shell. Commenters recommended that tanks noncombustible supports at least 12 Paragraph (b)(7) adopts the and their connections be tested at a inches above the floor to allow for requirement of the proposal for an pressure twice the working pressure. proper cleaning, rock dusting and quick automatic closing, heat-actuated valve The final rule does not require testing detection of leaks. Tanks will also be on each withdrawal connection below at twice the working pressure, in light protected by this requirement from wet the liquid level. The final rule does not of the detailed construction and design floors. Further, the final rule requires all adopt the proposed exception for requirements for diesel fuel storage connections used for emergency tanks in the final rule. The term ‘‘static diesel fuel storage tanks to be protected disposal, because this exception is not head’’ in the proposed rule has been from corrosion. These requirements will relevant to underground coal mines. replaced with the term ‘‘working ensure that tanks are sufficiently The proposed rule required the pressure’’ in the final rule. Although the shielded from water damage. installation of heat-actuated shutoff meanings are the same in this context, Paragraph (f) establishes design and valves only on tanks in fixed storage the term ‘‘working pressure’’ is more size requirements for safety cans. These facilities. The final rule extends this widely used and more commonly requirements have been added to the requirements to all diesel fuel tanks understood in the mining industry. final rule to ensure that small amounts used underground, which would Compliance with the requirement of this of diesel fuel can be transported and include tanks on diesel fuel paragraph will provide protection from stored in a safe manner. Although the transportation units. Automatic closing, hazards associated with leakage of proposed rule contemplated the use of heat-actuated valves shut the flow of diesel fuel underground. Under the final safety cans to transport small amounts fuel off when exposed to high rule, mine operators are expected to of diesel fuel underground, the proposal temperatures. These valves prevent verify that no leaks exist after installing would not have set design requirements additional fuel from being discharged the tank underground and connecting from the tank in the event of a fire. This all of the tank’s associated components for safety cans. Commenters were requirement has been extended to tanks before placing the tank in service. All concerned that widespread and on transportation units, and is components must be rated for the uncontrolled use of safety cans warranted in light of the scaling back of working pressures in the system. Both underground would result in fuel spills construction requirements for temporary the static head and the maximum pump and accumulations on mine equipment fuel storage areas in the final rule in pressure, if applicable, must be and mine floors. The provisions of this response to commenters’ concerns that considered when designing and paragraph are intended to address the requirements were impractical. selecting tanks and associated commenters’ concerns about the hazards Paragraph (c) addresses tanks with components connected to a piping presented by safety cans used to store openings for manual gauging, and system. For tanks connected to a piping and transport diesel fuel in the requires that liquid tight, tethered or system from the surface, the static head underground mine environment. self-closing caps or covers be provided pressure could easily exceed several The final rule establishes specific and be kept closed when not open for hundred pounds per square inch (psi), design requirements for safety cans. As gauging. The alternative of tethered caps either during normal operation or indicated in the discussion of § 75.1900, or covers has been added to the final because of a fault in the system. For rule for flexibility. MSHA believes the these systems, MSHA advises mine the term ‘‘safety can’’ is defined in the use of self-closing or tethered caps will operators to plan for a worst-case final rule as a metal container intended provide necessary protection against (highest pressure) scenario and select a for storage, transport or dispensing of overflow. tank and tank components that are diesel fuel with a nominal capacity of Paragraph (d) requires that surfaces of designed for use at this pressure. no more than 5 gallons, listed or the tank and its associated components MSHA has concluded that the approved by a nationally recognized be protected against collision. This strength test for tanks that was included independent testing laboratory. provision has been added to the final as part of the proposal is unnecessary, Paragraph (f)(1) of this section reiterates rule in response to commenters who given the other specifications for tanks. the 5-gallon capacity limitation, and were concerned about protecting the This proposed requirement has paragraph (f)(2) requires that safety cans tanks from moving equipment. MSHA therefore not been included in the final be equipped with a flexible or rigid agrees that it is essential that diesel fuel rule. tubular nozzle attached to a valved storage tanks be protected from damage The proposal would have imposed spout. Paragraph (f)(3) requires that by collision with other equipment. additional requirements on tanks in safety cans be provided with a vent Stationary tanks in permanent fuel underground diesel storage facilities valve designed to open and close that were not located in ‘‘dry areas.’’ storage facilities may need guards or simultaneously and automatically with Such tanks would have been required barricades, depending upon their the opening and closing of the pouring location, to prevent moving equipment under the proposal to be placed on valve. Finally, paragraph (f)(4) requires from colliding with the tank. noncombustible supports so that the Paragraph (e) sets forth requirements tanks were at least 6 inches above water that safety cans be designed so that they for leakage tests for tanks and their or wet bottom, and such tanks would will safely relieve internal pressure associated components, except that also have been required to be when exposed to fire. These tanks and components connected constructed of noncorrosive material. requirements will reduce the likelihood directly to piping systems must be Commenters stated that the concept of of diesel fuel spills and afford properly designed for the application. ‘‘dry areas’’ was ambiguous and should appropriate protection for miners, in The final rule requires a leakage test at not be adopted. MSHA agrees with these response to commenters who were a pressure equal to the working comments, and this aspect of the concerned about the use of safety cans pressure. The proposed rule would have proposal has therefore not been to store and transport diesel fuel. 55452 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations

Section 75.1905 Dispensing of Diesel device. These modifications recognize excluded from this prohibition because Fuel that fuel piping systems may be it is designed to be explosion-proof. This section addresses the dispensing installed underground that do not These commenters also stated that of diesel fuel, and has been revised from transport fuel from the surface, but from shutting down the equipment should be the proposal to clarify the various ways one location to another in the mine avoided because of the difficulty in that diesel fuel may be safely dispensed. itself. These additional requirements are restarting it, and that in some cases a Paragraph (a) provides that diesel- intended to prevent the leakage or trained mechanic would be needed to powered equipment may be refueled pumping of the contents of a tank into restart the engine. MSHA does not agree that permissible only from safety cans, from tanks on the mine in the event of a broken or leaking pipe or hose. An accessible equipment should be excluded from this diesel fuel transportation units, or from emergency shutoff switch is required for requirement. Although permissible stationary tanks. These requirements are each nozzle under the final rule to diesel equipment is equipped with intended to control the circumstances permit quick action by mine personnel engine surface temperature controls that under which diesel fuel is dispensed in the case of a leaking pipe or hose or would prevent the ignition of diesel fuel underground, minimizing the in the event of fire during refueling. An if it is spilled on the equipment, air opportunities for spills or leakage, and anti-siphoning device prevents the quality considerations support the in response to commenters who inadvertent siphoning of fuel from a adoption of this requirement for expressed concern about fuel spillage tank connected to the piping system, permissible as well as nonpermissible underground. and is responsive to commenters’ equipment. Not shutting down a Paragraph (b) contains requirements concerns regarding the hazards of fuel machine engine during refueling serves for the dispensing of diesel fuel from leaks and spills underground. no purpose other than convenience, and tanks, except for the dispensing of fuel Commenters recommended that an the diesel exhaust produced contributes from safety cans. Design specifications inline fuse be required as near as unnecessarily to contaminant levels. for safety cans are included in possible to the pump’s power source to The fact that engines may be difficult to § 75.1904(f) of the final rule, which deenergize the electrical system in the restart does not justify exempting requires nozzles, spouts, and vent event of an electrical short circuit. This permissible equipment from this valves on safety cans. comment has not been adopted in the requirement. Equipment that is difficult The requirements of paragraph (b)(1) final rule, because the circuit protection to restart is in need of service or repair. apply when gravity feed is used as a specified in existing § 75.518 is The final rule therefore does not exempt means of dispensing diesel fuel. sufficient to prevent or detect a short permissible equipment from the Although in developing the proposed circuit. In addition, other existing prohibition against refueling of diesel rule MSHA contemplated that gravity electrical safety requirements in part 75 equipment while the equipment engine feed would be used as a method for apply to electrical components is running. dispensing fuel, the proposal did not associated with diesel fuel handling and Paragraph (e), which requires that specifically refer to it. Some storage, and provide adequate powered pumps be shut off when fuel commenters questioned whether this protection from electrical hazards. is not being dispensed, has been added omission should be interpreted as a Paragraph (c) prohibits the use of to the final rule to address concerns prohibition of gravity feed fuel compressed gas in dispensing diesel about loss of fuel as a result of broken dispensing. In response to these fuel. This prohibition is identical to or leaking pipes. This requirement is comments, MSHA has clarified that what was proposed and received no intended to minimize the likelihood of gravity feed is a permissible method of comments. The use of compressed gas to fuel spills in the underground mine dispensing fuel. However, because dispense diesel fuel would require not environment. gravity feed presents the same potential only a special tank but also an as a powered pump for a loss of fuel emergency venting system for Section 75.1905–1 Diesel Fuel Piping from an unattended hose, the final rule pressurized tanks, and would still Systems prohibits a latch-open device when present a hazard. If a leak developed in Section 75.1905–1 has been added to gravity feed is the method of dispensing. the pressurized tank or its associated the final rule to address requirements Paragraph (b)(2) is identical to the piping, relatively large amount of fuel for diesel fuel piping systems. The proposal and requires that a manual could be spilled onto the mine floor, requirements in the proposal governing pump used to dispense diesel fuel have creating a serious fire hazard. This fuel piping systems were included in a hose equipped with a nozzle prohibition has therefore been retained the same section as proposed containing a self-closing valve. No in the final rule. requirements for fuel transfer. MSHA comments were received on this aspect Paragraph (d), like the proposal, has concluded that dispensing of the proposal, and it has been adopted prohibits diesel fuel from being requirements and design and unchanged. dispensed to the fuel tank of diesel- construction requirements for piping Paragraphs (b)(3) (i) through (iii) powered equipment while the systems are sufficiently unique that they require that, when a powered pump is equipment engine is running. This are more appropriately addressed in a used to dispense fuel, it be equipped prohibition is derived from MSHA’s separate standard. with an accessible emergency shutoff review of Canadian fire accident data, Underground fuel piping systems can switch for each nozzle, and that the which reveals that 10 fires occurred be very complex and may require hose be equipped with a self-closing during refueling. Failure to shut off the specialized expertise for their design valve without a latch-open device, and engine may have contributed to these and installation. Mine operators should with an anti-siphoning device. These fires. This prohibition is also consistent ensure that an engineering evaluation, requirements have been adopted, with with § 75.1916(d) of the final rule, including a fault analysis, is performed some minor changes, from the proposal. which forbids unnecessary engine in developing a fuel piping system. Specifically, the final rule clarifies that idling, and reduces exposure of miners One commenter recommended that an accessible emergency shutoff switch to exhaust emissions. piping of diesel fuel should be allowed be provided for ‘‘each nozzle’’, and adds Several commenters recommended only in shaft mines, from the surface a requirement for an anti-siphoning that permissible diesel equipment be vertically to permanent underground Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55453 storage areas, and that the piping should this section, the term ‘‘vertical’’ has spill. Because temporary fuel storage be contained in its own borehole to been eliminated to clarify that this areas are not required to have these isolate it from ignition sources. Safety section applies to all underground coal features, they would not provide considerations do not warrant mines. adequate fire protection for a situation restricting fuel piping systems to shaft Paragraphs (d) and (e), like the where a significant amount of fuel is mines. MSHA and industry experience, proposal, include requirements for lost in a spill from a piping system. including an analysis of accident shutoff valves on fuel lines. Paragraph Paragraph (h), like the proposal, reports, does not reveal any increased (d) provides that if fuel lines are not requires that when boreholes are used hazard with the use of piping systems buried in the ground, shutoff valves the diesel fuel piping system cannot be in slope mines. In the final rule, MSHA must be located every 300 feet. located in a borehole with electric has removed the reference to vertical Paragraph (e) requires that shutoff power cables. This will minimize the pipelines to clarify that this section valves be installed at each branch line likelihood of fire by diesel fuel coming applies to all mines. where the branch line joins the main into contact with potential ignition Paragraph (a) of this section of the line. One commenter recommended that sources. final rule adopts the proposed automatic shutoff valves be required in Paragraph (i) requires that diesel fuel requirement that diesel fuel piping these two situations, stating that they piping systems located in entries not be systems from the surface to be designed provide for minimal loss of fuel and located on the same side of the entry as and operated as dry systems, unless an maximum safety in the case of a electric cables or power lines. It also automatic shutdown is incorporated pipeline rupture or leak. MSHA does requires that guarding be provided that prevents accidental loss or spillage not believe that automatic shutoff valves when piping systems cross electric of fuel and that activates an alarm are necessary when the additional cables or power lines. The final rule has system. The phrase ‘‘from the surface’’ benefits are balanced with other been modified from the proposal to has been added to the final rule to provisions in this final rule. The acknowledge that, in some cases, a clarify that only piping systems from the commenter’s suggestion has therefore pipeline must cross over power lines, surface are governed by the not been adopted in the final rule. depending upon the mine’s layout. The requirements of this paragraph. MSHA Paragraph (f) is a new provision in the standard addresses any hazards is aware that some mines have installed final rule and requires that an automatic presented by the intersection of horizontal piping systems that do not means be provided to prevent pipelines and electric cables or power originate at the surface. Because these unintentional transfer of fuel from the lines by requiring that guarding be horizontal systems typically cannot be surface into the permanent underground provided. operated as dry systems, the rule diesel fuel storage facility. This Paragraph (j) requires that piping specifies that these systems would not requirement has been added to address systems be protected to prevent physical be affected by this requirement. No the concerns of some commenters that damage. Commenters supported this location is specified for the alarm in the were prompted by a specific diesel fuel provision, and it is unchanged from the final rule, to allow mine operators spill caused by malfunctioning proposal. flexibility in determining where the components in a diesel fuel piping Section 75.1906 Transport of Diesel system. Additionally, many commenters alarm will be most effective in alerting Fuel mine personnel. were generally concerned about possible Compliance with the requirement of fire and other hazards that could result This section of the final rule has been this paragraph mandates a well from diesel fuel spills and leaks, retitled and reorganized to reflect designed piping system, and may particularly when piping systems are MSHA’s approach to diesel fuel storage require a double wall system. Except for used. This paragraph responds to those and handling in this final rule. The the comment suggesting that piping of comments by requiring a fail-safe piping word ‘‘containers’’ is removed from the diesel fuel underground be limited to system, ensuring that necessary title to reflect that only two types of shaft mines, MSHA received no other protection is provided to miners. vessels are allowed to transport and comments on this provision, and the Paragraph (g) provides that diesel fuel dispense diesel fuel—safety cans and proposed requirement has been adopted piping systems from the surface can tanks. This section of the final rule is in the final rule without change. only be used to transport fuel directly to responsive to commenters who: Paragraphs (b)(1) through (b)(4) stationary tanks or diesel fuel expressed concerns about the wide and address requirements for piping, valves, transportation units in a permanent uncontrolled use of safety cans in and fittings. These requirements are underground diesel fuel storage facility. underground coal mines; recommended unchanged from the proposal, and This requirement has been renumbered limited section storage of diesel fuel; constitute generally accepted design and has been revised from the proposal stated that fire suppression systems specifications. This standard requires to respond to commenters who were not needed on the tank used to that all piping, valves, and fittings be: recommended strict control of the use of transport fuel; and noted the need for (1) Capable of withstanding working safety cans and stated that dispensing clarification of the requirement for pressures and stresses; (2) capable of fuel from a piping system directly into portable fire extinguishers on diesel fuel withstanding four times the static diesel equipment fuel tanks would transportation units. pressure; (3) compatible with diesel create a fire hazard. This paragraph is Several commenters stated that the fuel; and (4) maintained in a manner intended to prohibit filling safety cans proposed rule was vague and confusing. which prevents leakage. and equipment fuel tanks directly from Their comments were directed to the Paragraph (c) requires pipelines to a piping system and further minimize use of the terms ‘‘containers,’’ ‘‘safety have manual shutoff valves installed at hazards associated with fuel spills. cans,’’ ‘‘tanks,’’ and ‘‘fuel transportation the surface filling point, and at the Under this paragraph a fuel piping units.’’ As indicated in the preamble underground discharge point. This system from the surface may terminate discussion for § 75.1900, MSHA has requirement is the same as the proposal, underground only in a permanent fuel included definitions in the final rule for except that the proposal used the term storage facility, which must be equipped the terms ‘‘safety cans,’’ ‘‘diesel fuel ‘‘vertical’’ to describe pipelines. For the with features such as a fire suppression tank,’’ and ‘‘diesel fuel transportation reasons discussed in the introduction to system and a means of containing a fuel unit’’ to provide additional clarification 55454 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations for the fuel handling and storage ensure safe transport of safety cans. The Paragraph (g) requires non-self- requirements in the final rule. The term final rule does not require that single propelled diesel fuel transportation ‘‘container’’ has not been defined safety cans, which are secured and units equipped with electric because it has been eliminated from the protected on a vehicle, be removed for components for dispensing fuel that are final rule. storage in permanent facilities when the connected to a source of electrical Several commenters recommended vehicle is left unattended. This aspect of power be provided with a fire that the use of small containers and cans the final rule will allow for emergency suppression device that meets the be restricted because they are prone to refueling, while at the same time requirements of existing §§ 75.1107–3 leak when transported or used to provide a degree of control over the use through 75.1107–6, §§ 75.1107–8, and dispense fuel. In support of their of safety cans. § 75.1107–16. The proposed recommendation, these commenters Paragraphs (c) and (d) require that requirement would have required a fire cited instances of mine floors being leaking safety cans be promptly suppression system meeting the saturated with fuel. Other commenters removed from the mine, and that safety requirements of proposed § 75.1911 on urged that safety cans be allowed for cans and tanks on diesel fuel all diesel fuel transportation units, not transport of small quantities of diesel transportation units be conspicuously only on those with electrical fuel, and stated that prohibiting their marked. These marking requirements components. use would be unwarranted. As stated are consistent with marking Commenters were opposed to a earlier in the discussion for this section, requirements for permanent fuel storage requirement for fire suppression the final rule has been revised to require facilities and temporary fuel storage systems on all diesel fuel transportation that safety cans be listed or approved by areas in § 75.1903(b)(3) of the final rule. units, stating that a trailer-mounted fuel a nationally recognized independent The inclusion of marking requirements tank did not need a fire suppression testing laboratory. This aspect of the for safety cans and tanks in the final system since it had no ignition source, final rule will provide miners with rule is responsive to several commenters and should not be treated any protection against leakage and spillage who suggested that signs should be differently than tanks transporting other during dispensing operations, while placed on mobile equipment identifying combustible materials. These recognizing the practical need to tanks and cans used for diesel fuel commenters believed that the fire transport small quantities of diesel fuel. storage. This is also a prudent fire extinguishers required under the Paragraph (a) of this section of the protection practice. proposal would provide adequate fire final rule requires diesel fuel to be protection in temporary fuel storage transported only by diesel fuel Paragraphs (e) and (f) establish areas. transportation units or in safety cans. requirements for the transportation of MSHA agrees with commenters that This requirement is intended to ensure tanks on fuel transportation units. As fuel tanks alone, without an ignition that diesel fuel is transported only in mentioned earlier, the final rule does source, do not present a significant fire vessels designed for that purpose. The not use the term ‘‘container’’. Paragraph hazard. However, fire protection for fuel proposal would have required diesel (e) provides that diesel fuel tanks must be provided when a fuel to be transported in specially transportation units must not transport potential ignition source exists. An designed containers. A commenter more than 500 gallons of diesel fuel at ignition source is present on the diesel recommended substituting the term one time. Paragraph (f) requires tanks on fuel transportation unit when electrical ‘‘combustible liquid’’ in place of the diesel fuel transportation units to be power is provided to the dispensing term ‘‘diesel fuel’’, stating that there are permanently fixed to the units and have pump on the unit from either an Department of Transportation a total capacity of no greater than 500 electric-powered machine or the mine specifications for containers that gallons. Under the proposal, containers electrical system. The final rule transport combustible liquids. The final used for the transport of diesel fuel therefore requires fire protection for rule responds to commenters by limiting could not exceed a capacity of 500 non-self-propelled diesel fuel the transport of diesel fuel to safety gallons, and would have been required transportation units with electrical cans, which must be listed or approved to be permanently fixed to the components for dispensing fuel that are by a nationally recognized independent transportation unit. One commenter connected to a source of electrical testing laboratory, or by diesel fuel recommended that the maximum tank power. Diesel fuel transportation units transportation units, which must be capacity be limited to 250 gallons, with electrical devices other than those equipped with a tank designed for the reasoning that less fuel would reduce used for dispensing fuel, such as lights, transport of diesel fuel. the fire hazard. The interrelated do not present a significant fire hazard MSHA recognizes that safety can use precautions of the final rule are and do not need to be protected by a fire must be carefully controlled. Paragraph designed to protect against a fire suppression system. This fire (b) of this section of the final rule allows involving a diesel fuel transportation suppression device requirement would only one safety can to be transported on unit. Reducing the unit’s fuel capacity also apply when the transportation a vehicle at any time, and the can must to 250 gallons would not add unit’s dispensing pump is powered by be protected from damage during significantly to the protection against its own batteries or an off-board transport. All other safety cans must be fire, and would increase the frequency generator. stored in permanent underground fuel with which the unit would need to be The final rule requires a fire storage facilities. This provision is refilled. However, paragraph (e) is suppression device meeting the revised from the proposal to be intended to limit the amount of fuel requirements of existing § 75.1107, responsive to commenters who cited transported by a single trip, either on instead of § 75.1911 under the proposal, problems with misuse of small cans and rails or rubber tires, to 500 gallons. because the fire protection provided by recommended that they be strictly Paragraph (f) will ensure that the fuel § 75.1107 is suitable for electrical controlled. Commenters further stated tank is not removed from the vehicle for installations, and therefore appropriate that in some mines there was no transport separately, thereby exposing for electrical components of fuel designated area for storage of safety the tank to possible damage, and also transportation units. A fire suppression cans. The requirements that have been offers some protection for the tank from system under § 75.1911 is designed to added to the final rule are intended to the vehicle frame. protect diesel-powered equipment, and, Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55455 unlike existing § 75.1107, does not unit. This may occur, for example, additional time to come into compliance require that the mine electric power while the operator is locating the next with these provisions. supply to the fuel transportation unit be unit of equipment to be refueled. This Section 75.1907 Diesel-Powered shut off when the fire suppression requirement is intended to control the Equipment Intended For Use In system is actuated, an important safety locations of diesel fuel transportation Underground Coal Mines. feature that prevents reignition of the units to minimize fire hazards fire. associated with their use. This section establishes a schedule for Paragraph (h) requires diesel fuel Paragraph (j), like the proposal, compliance with the final rule’s transportation units and vehicles applies the requirements of existing equipment-related requirements, transporting safety cans to have at least § 75.1003–2 when the distance between including requirements for approved two multipurpose, dry chemical type a diesel fuel transportation unit and an engines and power packages, fire (ABC) fire extinguishers. The fire energized trolley wire at any location is suppression systems, and safety-related extinguishers must be listed or less than 12 inches. Section 75.1003–2 requirements for nonpermissible approved by a nationally recognized sets forth specific precautions to be equipment in §§ 75.1909 and 75.1910. independent testing laboratory, and followed when off-track equipment is The concept of a time schedule to allow have a 10A:60B:C or higher rating. being moved in areas where energized for conversion or replacement of diesel- There must be at least one fire trolley wires are present. MSHA powered equipment currently in use to extinguisher located on each side of the received no comments on this aspect of comply with the new requirements of vehicle. The proposal would have the proposal and it has been adopted the final rule was recommended by the required that fire extinguishers be into the final rule unchanged. This Diesel Advisory Committee. The provided on each end of a fuel requirement is intended to minimize the Committee also recommended that equipment newly introduced transportation unit when diesel fuel was risk of ignition and fire when a diesel underground after a fixed date meet the transported in containers other than fuel transportation unit is in close new requirements. safety cans. Locating fire extinguishers proximity to a bare energized trolley on the side is consistent with the Under the compliance schedule of wire. The sparks and heat from an this section, 30 days after the rule’s requirements of § 75.1911(e) of the final electrical short circuit could ignite rule for the location of fire suppression publication date all diesel-powered residual fuel on the transportation unit equipment used where permissible system actuators. The type and size of and fire may then spread to the larger extinguisher are the same as required by electric equipment is required must be volume of fuel stored on the approved under part 36. This section § 75.1903(b)(1) and (b)(2) for permanent transportation unit. underground diesel fuel storage also establishes a compliance schedule Paragraph (k) prohibits the transport facilities and temporary underground for Part 36-approved equipment, to of diesel fuel on or with mantrips, or on diesel fuel storage areas. comply with certain surface temperature Paragraph (i) requires that diesel fuel conveyor belts. This requirement has limits within 6 months, and be provided transportation units be parked in been revised from the proposal, which with a fire suppression system and permanent underground diesel fuel would have prohibited transport of brakes that meet certain standards storage facilities or temporary diesel fuel on conveyor belts, to include within 36 months of the rule’s underground fuel storage areas when within the prohibition the transport of publication. Part 36-approved not in use. Under the proposal, diesel fuel on mantrips, in response to equipment is also required to have a ‘‘unattended’’ diesel fuel transportation several commenters who expressed particulate index and a dilution air units would have been required to be concern about transportation of diesel quantity determined under subpart E of parked only in fixed or mobile fuel fuel on personnel carriers because of the part 7 within 12 months of the rule’s storage facilities. Some commenters inherent hazards associated with that publication date. Permissible diesel- objected to this requirement, and urged practice. This requirement applies to powered equipment that is MSHA to provide a more workable rule equipment being used as personnel manufactured 3 years after the date of that would allow transportation units to carriers, but does not apply to such publication of the final rule or later and be parked, consistent with the Advisory equipment when it is used for purposes used in underground coal mines must Committee’s recommendation that other than transporting miners in the incorporate a power package approved MSHA establish requirements for the mine. This requirement also does not under subpart F of part 7 of the final temporary parking of diesel apply to diesel fuel contained in the fuel rule. This section of the final rule also transportation vehicles. Some tank of a diesel-powered personnel requires nonpermissible diesel-powered commenters also stated that carrier. equipment, with the exception of the ‘‘unattended’’ was an ambiguous term. Paragraph (l) requires that, as of 12 special category of ambulances and The term ‘‘unattended’’ has been months after the publication date of the firefighting equipment under eliminated from the final rule. Instead, final rule, diesel fuel must be stored and § 75.1908(d), to be equipped with the the final rule provides that diesel fuel handled in accordance with the machine safety features set forth in transportation units that are ‘‘not in requirements of §§ 75.1902 through §§ 75.1909 and 75.1910 within 36 use’’ must be parked either in 75.1906 of this part. Twelve months will months of the publication date of the permanent storage facilities or provide sufficient time for mine final rule. temporary storage areas. The phrase operators to make any necessary The overall approach taken in the ‘‘not in use’’ means that the unit is not changes to their fuel handling, final rule for equipment safety features being trammed or used to dispense fuel transportation, and storage practices is different from that of the proposal, in or lubricants or waiting to refuel another underground, such as fuel tank retrofits response to commenters and for reasons piece of equipment. It does not mean or construction of fuel storage facilities. explained in detail in the preamble for that the unit operator must be within The requirements of § 75.1903 (c) and parts 7 and 36. The proposed rule 500 feet or within the line of sight of the (d) take effect sooner, because they would have required approval of fully fuel transportation unit, as long as the address safe welding practices in or near assembled permissible equipment under operator is performing an activity diesel fuel storage areas, and mine subpart H of part 7, and approval of associated with the operation of the operators should not need any fully assembled nonpermissible 55456 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations equipment under subpart I of part 7. A of this section of the final rule reflect surface temperature controls for the limited class of light-duty this change in approach. equipment. As discussed elsewhere in nonpermissible equipment would have The time frames in this section are the preamble, commenters were divided been established that did not require based on an estimation of the useful life on this issue. Some commenters fully assembled machine approval, but of existing diesel-powered equipment, believed not only that temperature which would have been equipped with the reasonable time needed to convert or controls were necessary to adequately specific machine safety features set forth retrofit existing equipment, and the address the fire hazards presented by as mandatory standards in proposed commercial availability of suitable diesel-powered equipment § 75.1909. Under proposed § 75.1907, replacement equipment. The time underground, but also recommended specific deadlines, up to 60 months after frames in this section are intended to that all diesel-powered equipment be the rule’s effective date, would have provide mine operators with a approved under part 36 as permissible, been set for compliance with the reasonable period of time to make and provided with the explosion-proof equipment-related requirements of the determinations of the expected features required on such equipment. final rule for both permissible and remaining useful life of diesel-powered Other commenters strenuously opposed nonpermissible equipment, including machines in use in their mines and the a requirement for approved power limited class and stationary unattended cost of necessary machine packages on nonpermissible equipment, equipment. Additionally, the proposal modifications, and to compare this stating that surface temperature controls would have allowed a mine operator to information with the replacement cost were not needed on equipment operated apply for MSHA approval for continued of equipment that complies with the outby the face, and that fire protection use of diesel-powered locomotives requirements of the final rule. features, such as fire suppression without required subpart F or G power One commenter rebuilt a diesel- systems, in conjunction with other packages. MSHA would have been powered truck to convert it to a machine safety features would provide authorized to grant such approval if personnel carrier that met the an appropriate margin of safety. These approved power packages suitable for equipment safety requirements of the commenters stated that a power package specific mine conditions and proposed rule for self-propelled limited requirement for nonpermissible locomotive design were not available, class nonpermissible equipment, and equipment would have the effect of recognizing that the current state of submitted a written summary eliminating many useful pieces of technology might make compliance documenting the conversion into the equipment from mines that could not be difficult or impossible. rulemaking record. This information retrofitted with power packages or The proposed rule took the approach generally demonstrated that compliance would not be manufactured with them. of phasing in the different equipment- would be facilitated if equipment- The final rule does not require related requirements, depending on how related requirements were phased in by approved power packages on outby long MSHA determined mine operators equipment type, rather than phasing in equipment, except when the equipment and manufacturers would need to obtain specific requirements across all discharges its exhaust directly into a the necessary equipment or make the equipment types. In short, once an return air course, as provided under necessary retrofits, including time equipment rebuild is initiated, it is § 75.1909. Proposed subpart G, which needed to obtain MSHA approval for the easier to perform all machine feature would have established an approval appropriate machine components. modifications at the same time. program for power packages for Specifically, the proposed rule would One commenter asserted generally nonpermissible equipment, has not been have allowed a longer period of time for that mine operators and equipment adopted in the final rule. Instead, equipment to be provided with manufacturers could bring diesel- nonpermissible equipment is required approved engines and power packages powered equipment into compliance under § 75.1909(a)(10) to be provided than it would have allowed for other with the requirements of the final rule with a means to prevent the spray from equipment-related requirements, for within 12 months. Although MSHA ruptured hydraulic or lubricating oil such features as brakes, fuel systems, agrees, and the final rule reflects, that lines from being ignited by contact with and electrical components. Different some requirements can be met within a engine exhaust system component time frames would have been allowed year, compliance with other surfaces. This requirement recognizes under the proposal to take into account requirements, will reasonably involve that the hazards of high surface the time needed for the MSHA approval more time. temperatures on diesel-powered process as well as the technical As explained in greater detail equipment can be controlled in a difficulties associated with retrofitting elsewhere in the preamble, the final rule number of ways in addition to the equipment with approved power requires specific safety features on both methods contemplated under proposed packages and engines. permissible and nonpermissible diesel- subpart G. MSHA has concluded that As discussed in the preamble to part powered equipment. These the requirement of paragraph (a)(10), 7 of the final rule, the final rule does not requirements apply to nonpermissible along with the other safety features adopt the approach of fully assembled diesel-powered equipment in §§ 75.1909 required for control of fuel sources on machine approval under subparts H and and 75.1910, and will be applied to diesel-powered equipment, provides I of part 7 contemplated by the proposal permissible diesel-powered equipment effective fire prevention on and addressed in the concurrent during the MSHA approval process nonpermissible diesel-powered advance notice of proposed rulemaking. under part 36. equipment. The approach of the final Instead, part 36 has been expanded to The final rule does not require rule allows mine operators and specifically provide for approval of nonpermissible equipment to be manufacturers the flexibility to improve diesel-powered equipment used in areas provided with power packages, which existing methods and to develop new of underground coal mines where would have been required under the methods of meeting the performance permissible electric equipment is proposal. Neither does it require fully goals of the final rule requirements. required. Fully assembled machine assembled machine approval for Paragraph (a) of this section of the approval is not required under the final nonpermissible equipment. Power final rule adopts the proposed rule for any category of nonpermissible packages would have provided this requirement that within 30 days of the equipment. The compliance time frames equipment with, among other things, date of publication of the final rule, all Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55457 diesel-powered equipment used where a surface temperature above 302° F, and MSHA had proposed a 6-month permissible electrical equipment is the equipment on which the system is compliance deadline for installation of required be approved under part 36. installed is not used in coal mines. fire suppression systems on part 36- Part 36 approval ensures that the Consequently, compliance with this approved equipment, but has concluded equipment is explosion-proof, and that requirement within six months of the that a 36-month time frame is needed equipment used in areas of the mine publication of the final rule should for mine operators to obtain MSHA where methane is likely to accumulate present no compliance difficulties for approval of field modifications on and where there may be combustible mine operators or manufacturers. This approved equipment, and for equipment quantities of coal dust and other requirement will ensure that manufacturers to process approval materials will not cause a fire or an permissible equipment in underground applications to permit installation of fire explosion. All underground coal mines coal mines will have surface suppression systems on permissible using diesel equipment already have the temperatures below 302° F, minimizing equipment. The Agency intends to approved equipment necessary to the chance that combustibles such as promptly process approval applications comply with this requirement, in most diesel fuel, float coal dust, and for modification of machines to aid cases because the mine’s ventilation hydraulic fluid will be ignited by high compliance with this requirement. plan specifically requires it. This surface temperatures. Paragraph (b)(3) has been added to the requirement therefore goes into effect 30 Paragraph (b)(2) requires that, as of 36 final rule to require that, as of 36 days after publication of the final rule, months after the final rule is published, months after the publication date of the final rule, equipment approved under providing necessary protections for equipment approved under part 36 be part 36 be provided with brake systems miners working underground. provided with an automatic or manual that meet the requirements of Paragraph (b) establishes a time fire suppression system that meets the § 75.1909(b)(7), (b)(8), (b)(9), (c), (d), and schedule under which equipment requirements of § 75.1911, and be (e). These brake requirements have been approved under part 36 is required to be provided with a portable fire added to ensure that permissible provided with additional safety features. extinguisher. A fire suppression system equipment meets at least the same Paragraph (b)(1) requires the equipment is required on permissible equipment in braking requirements as nonpermissible to be provided with a safety component addition to surface temperature controls equipment under the final rule. All system that limits surface temperatures to address fire hazards created by other existing part 36 equipment is already to those specified in subpart F of part 7. machine system malfunctions. The fire equipped with service brake systems This requirement is essentially identical suppression system on permissible that meet the requirements of to that of the proposal, which would equipment may be either manual or § 75.1909(b)(8), (b)(9), and (d). The have required that part 36-approved automatic. Under the proposal, part 36- requirements of § 75.1909(c) have been equipment be provided with a power approved equipment would have been developed from requirements for package that limits surface temperatures required to have a fire suppression automatic emergency parking brakes on to those specified in subpart F. In the system that met the requirements of electric equipment in § 75.523–3. A final rule, the equipment is required to § 75.1911. The requirements of number of commenters supported the have a ‘‘safety component system’’ that proposed § 75.1911 provided only for application of these requirements to limits the surface temperatures rather automatic fire suppressions systems. For diesel-powered equipment, and they than a ‘‘power package’’ specified under reasons explained in greater detail in have been applied to permissible the proposal. Existing permissible the preamble discussion to § 75.1911, equipment under the final rule. Some equipment has been approved under the automatic fire suppression is not existing part 36-approved equipment current version of part 36, which uses required on permissible diesel-powered will require minor modifications to the term ‘‘safety component system’’ to equipment. This is because all comply with the requirements of refer to those devices added to the equipment approved under part 36 is § 75.1909(c). Section 75.1909(b)(7) engine to control surface temperatures provided with surface temperature essentially requires independent service of the exhaust system. The term ‘‘power controls, which reduce the risk of fire. brake systems for the front and rear package’’ used in the final rule includes The final rule includes the additional wheels of vehicles. This is a well- those devices, which, with the engine, requirement that the equipment be recognized safety feature that is comprises the ‘‘power package.’’ Power provided with at least one portable warranted for part 36-approved diesel- packages are approved under subpart F multipurpose dry chemical type ABC powered equipment as well as for of part 7 of the final rule. As discussed fire extinguisher having a 10A:60B:C nonpermissible equipment covered by elsewhere in this preamble, part 36 has rating or higher. The fire extinguisher § 75.1909. Although the majority of part been specifically revised to provide for must be located within easy reach of the 36-approved equipment is already approval of diesel-powered machines equipment operator and be protected provided with this feature, a limited used in underground coal mines. Part 36 from damage by collision. This number of machines will require now references subparts E and F of part requirement has been added in response modification. Because some mine 7 of the final rule, and requires to the recommendation of a commenter. operators will need to obtain field equipment approved under part 36 for MSHA has concluded that requiring modifications and equipment use in coal mines to be equipped with equipment to be provided with a manufacturers must obtain MSHA a power package approved under portable fire extinguisher is a good fire approval of design modifications, a 36- subpart F. Subpart F limits the prevention practice, and this month compliance time is appropriate maximum surface temperature to less recommendation has therefore been and is provided for in the final rule. than 302° F (150° C). Until promulgation adopted in the final rule, superseding Section 75.1909 of the final rule of this final rule, the maximum surface the requirement in part 36 for a fire requires that nonpermissible diesel- temperature of the engine and exhaust extinguisher with a much lower powered equipment be equipped with a system components under part 36 was firefighting rating. This requirement is supplemental brake system, which 400° F (204° C). To date, only one consistent with the fire extinguisher provides substantially the same features engine and safety component system requirements for nonpermissible as would be provided by the automatic used in part 36-approved equipment has equipment in the final rule. emergency parking brakes specified in 55458 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations

§ 75.523–3. Section 75.1909(e) requires which must be applied and preamble to § 75.1908. Instead, the final setting of the supplemental brake implemented within 12 months of the rule establishes two categories of system when the operator is not at the date of the final rule’s publication. This nonpermissible equipment, heavy-duty controls of the equipment, except time frame is consistent with the 12- and light-duty. Under paragraph (c) of during the movement of disabled month effective date for compliance this section of the final rule, equipment equipment. Because part 36-approved with the ventilation requirements of in both categories must be provided equipment is provided with a § 75.325(k) of the final rule that apply with the safety features set forth in supplemental brake system under the where diesel-powered equipment is §§ 75.1909 and 75.1910. These features final rule, the requirement for setting of operated. include engines approved under subpart the supplemental brake has also been Paragraph (b)(5) requires that E of part 7, fire suppression systems, applied to this equipment. permissible diesel-powered equipment brakes, and electrical protections. Paragraph (b)(4) requires that that is manufactured 36 months or more Several commenters stated that equipment approved under part 36 have after the publication date of the final approved engines, power packages, or a particulate index and a dilution air rule and used in an underground coal surface temperature controls are quantity determined in accordance with mine incorporate a power package unnecessary for nonpermissible part 7, subpart E within 12 months of approved under part 7, subpart F. Under equipment, while other commenters the publication date of the final rule. the proposal, only ‘‘new’’ diesel- considered surface temperature controls The types of engines that are affected by powered equipment approved under necessary. this requirement are installed in subpart H or I or meeting the The final rule’s equipment safety permissible face equipment that is requirements of §§ 75.1909 and 1910 requirements for nonpermissible diesel- currently approved under part 36. could be introduced into underground powered equipment are intended to Because of where and how this coal mines 60 months after the effective ensure that the equipment will not equipment is used, it significantly date of § 75.1907. This meant that both present a fire hazard and that gaseous affects the air quality where miners new permissible and nonpermissible diesel exhaust emissions and particulate work and travel. Diesel-powered face equipment (that did not fall into the emissions are addressed. equipment includes haulage equipment limited class or was not used as A compliance time of 24 months was and roof bolters, which are typically stationary unattended equipment) proposed, and one commenter used in the confined environment in the introduced in an underground coal recommended a 12-month compliance production area of the face and operated mine after the deadline would have had time. The final rule allows 36 months almost continuously over the course of to receive a full machine approval. One for nonpermissible equipment to a shift. The contribution of diesel commenter recommended that the comply with the requirements of exhaust from this equipment into the proposed 60-month delayed effective §§ 75.1909 and 75.1910. Included in mine atmosphere can be significant and date be changed to 12 months. Another these sections is a requirement that can adversely affect the health commenter suggested that the language nonpermissible equipment be provided conditions for miners working in and be clarified to state that existing part 36 around the area where the equipment is approvals remain valid. with an engine approved under subpart being operated. Under new The time frame for compliance has E of part 7. It is expected that this requirements in § 75.325 of the final been reduced to 36 months in requirement will require the longest rule, minimum ventilating air quantities recognition of the fact that the final rule time period for compliance, as engine are established for areas where diesel- does not require full machine approval manufacturers must first obtain MSHA powered equipment operates. These of all permissible and nonpermissible approval of appropriate engines. The 36- minimum quantities are derived from equipment, as contemplated by the month time frame allows some models the approval plate ventilating air proposal. Three years should be of nonpermissible equipment currently quantity for the equipment that is sufficient for equipment manufacturers in use in underground coal mines to operating. Consequently, ventilating air to obtain approval for and incorporate reach the end of its useful life and to be quantities must be calculated for these subpart F power packages into the replaced with equipment that meets engines so that the minimum air permissible diesel-powered equipment these requirements, rather than being quantity requirements can be they manufacture. Part 36-approved retrofitted with a new engine and the implemented. As mentioned elsewhere equipment manufactured before the other features required by §§ 75.1909 in this preamble, the particulate index relevant date may continue to be used and 75.1910. will not be used to determine the in accordance with its approval The final rule does not adopt the minimum ventilating air quantity for the indefinitely. proposed provision allowing mine engine, but will be available for Paragraph (c) requires nonpermissible operators to seek MSHA approval for informational purposes. diesel-powered equipment to comply the extended use of diesel-powered There are only four engines models with §§ 75.1909 and 75.1910 within 36 locomotives because of the used in the majority of part 36-approved months of the publication date of the unavailability of approved power equipment used in underground coal rule. Under the final rule packages suitable for the mine mines. These engines are typically of nonpermissible equipment, which is conditions or for the locomotive’s older design, and it is uncertain whether used in areas where permissible electric design. This provision recognized that the engine manufacturers will seek equipment is not required, does not certain types of diesel locomotives approval for their engine designs under need full machine approval by MSHA. might not have been able to be subpart E of part 7. As a result, MSHA However, under § 75.1909(a)(1) retrofitted to meet all of the applicable intends to determine dilution air nonpermissible equipment must be equipment-related requirements. quantities and particulate indices for equipped with an engine approved Because the final rule does not require these engines in accordance with part 7, under subpart E of part 7. The final rule approved power packages for subpart E, whether or not the did not adopt the proposed nonpermissible equipment, a process for manufacturers seek a subpart E approval establishment of a limited class of MSHA approval of extended use of for their engines. MSHA will make this nonpermissible light-duty equipment, nonpermissible locomotives without information available to mine operators, for reasons explained in detail in the approved power packages is no longer Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55459 necessary, and has consequently not that this restriction was not intended to criteria in the proposal for limited class been adopted in the final rule. apply to hydraulic systems used in equipment were unnecessarily brake units or automotive-style power restrictive, and that the class should be Section 75.1908 Nonpermissible assist units. Additionally, the significantly broadened to include many Diesel-Powered Equipment; Categories equipment engine could not be more types of equipment, such as light- This section of the final rule turbocharged. Portable equipment that duty manned personnel and material establishes three categories of fell into this class was limited to haulage equipment. A number of nonpermissible diesel-powered welders and compressors. The proposal commenters indicated that the equipment: heavy-duty equipment, also allowed altitude compensation equipment that they would consider which is defined as equipment that is devices to be used with limited class light-duty equipment in their mines used for such tasks as cutting or moving equipment. exceeded either the weight or rock or coal, drilling or bolting, or Although limited class equipment horsepower restrictions of the proposal. moving longwall components; light- under the proposal would have been Other commenters were of the duty equipment, which includes any required to have an engine approved opinion that fire suppression systems other nonpermissible equipment that is under subpart E of part 7, the machine were an acceptable substitute for surface not heavy-duty; and a special category as a whole would not have been temperature controls, and strongly for ambulances and fire fighting approved by MSHA. Instead, limited supported a significant expansion of the equipment. Because nonpermissible class equipment would have been equipment falling into the limited class equipment is used in areas of the mine required to be equipped with the safety and therefore not required to have a where methane is not likely to features in proposed § 75.1909. All other power package that would provide such accumulate, it is not required to be nonpermissible equipment would have controls. A number of commenters also explosion-proof. However, all been required to have a subpart F or G indicated that much of the equipment nonpermissible equipment, with the approved ‘‘power package,’’ which currently in use in mines that did not exception of ambulances and other would have included an approved fall into the proposed limited class emergency equipment described under engine with additional components to would have to be replaced, because it paragraph (d), is required to have an prevent the ignition of methane or would be impossible to retrofit the engine approved under subpart E of part combustible materials, such as surface equipment to provide the required 7, which sets engine performance and temperature controls. Additionally, it surface temperature controls. Other exhaust emissions requirements. was MSHA’s intention, reflected in the commenters were concerned that The requirements that apply to advance notice of proposed rulemaking limitations based on existing equipment nonpermissible equipment under the published with the proposal, to require designs could discourage the final rule vary according to the whole machine approval of all development of new technology. equipment’s category. Most importantly, nonpermissible equipment, except One commenter was generally the equipment category determines equipment that fell into the limited opposed to the creation of a limited which equipment safety features are class defined under the proposal. class that was not required to have required under §§ 75.1909 and 75.1910 The equipment categories in the surface temperature controls, because of the final rule. One of the most proposed rule were based upon the the commenter believed that this would important distinctions between heavy- Diesel Advisory Committee present an unacceptable fire hazard. and light-duty equipment under the recommendation that fire prevention This commenter stated that heat sensors final rule is that heavy-duty equipment features, including surface temperature that triggered engine shutdown or fire is required to have an automatic fire controls and fire suppression systems, suppression were not acceptable suppression system under § 75.1909, be required on all outby equipment. substitutes for surface temperature while light-duty equipment may be However, the Committee recognized controls. provided with either a manual or that much of the light-duty equipment A number of commenters were automatic system. Additionally, heavy- in use in mines was not specifically opposed to the limitation on equipment duty nonpermissible equipment is designed for mining and might not be weight, stating that weight had no subject to the weekly undiluted exhaust available with surface temperature relationship to the hazards presented by emissions test under § 75.1914(g) of the controls. The Committee therefore the equipment, and that the 6,000- final rule, and must also be included in concluded that a limited class of light- pound restriction was arbitrary. One the air quantity calculation for multiple duty equipment could be safely commenter stated that although weight units of diesel-powered equipment operated if it was equipped with fire in some cases could be an indicator of under § 75.325(g). These provisions do prevention and protection features in duty cycle and the potential for higher not apply to light-duty equipment. lieu of surface temperature controls, equipment operating temperatures and The final rule is a significant such as fire suppression devices, resulting fires, requirements for fire departure from the proposal, in reduction of the potential for fuels to suppression and automatic engine response to a majority of commenters contact hot surfaces, and reduction of shutdown when engine temperature who were opposed to the proposed potential ignition sources. Equipment in reaches a specified limit would criteria for the equipment categories. this limited class would be expected to adequately address these concerns. The proposal would have established a operate on a light-duty cycle, and would Another commenter stated that most special category of nonpermissible not reach high temperatures or would diesel equipment that exceeds 6,000 ‘‘limited class’’ equipment. Limited reach high temperatures for a limited pounds is not used in heavy-duty class equipment under the proposal period of time, with a significantly applications such as coal production but would have been equipment weighing reduced potential for fire. is considered light-duty equipment. less than 6,000 pounds and equipped Commenters expressed widely Some commenters were particularly with an engine of less than 90 varying views on this aspect of the concerned about the safety impact of the horsepower. Equipment with a proposal. Most commenters supported weight limitation on railmounted hydraulic system could not be included the concept of a distinct class of equipment, pointing out that weight is in the limited class, although MSHA equipment with less extensive safety needed to provide traction. These stated in the preamble to the proposal requirements, but many stated that the commenters stated that although some 55460 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations rail-mounted equipment would fall handling of supplies and materials, determine which machine safety below the proposed horsepower making the job easier and safer. These features and what type of equipment limitation, the weight of most rail- commenters also believed that design are needed to prevent fires on mounted equipment significantly prohibiting hydraulic systems on diesel-powered equipment used in exceeds 6,000 pounds, and that it would limited class equipment would preclude underground coal mines. An analysis of be neither practical nor feasible to other equipment features that enhance the Ontario fire data reveals that modify existing outby track equipment safety, such as power take-offs, equipment used in heavy-duty type to meet the proposed limited class automatic transmissions, and activities, such as hauling rock or coal criteria. Because of this concern, one hydrostatic drive units. or moving longwall components, commenter suggested that outby rail- Commenters were also opposed to the presents a significant fire hazard and mounted equipment be addressed in a prohibition against turbocharged requires suitable fire prevention and separate category, without a weight engines for limited class equipment. protection features. restriction. This restriction was included in the Consistent with these conclusions and Several commenters also stated that proposal because of the concern about also with the recommendations of a the safety features that would be the potential ignition of combustible number of commenters, paragraphs required on limited class equipment materials on the hot exhaust system (a)(1) through (a)(5) of this section of the under proposed § 75.1909 would add to surfaces that are characteristic of final rule specify what constitutes the vehicle weight, making the 6,000- turbocharged engines. Commenters heavy-duty equipment. Heavy-duty pound restriction even more unrealistic stated that turbochargers have served as nonpermissible equipment includes in those commenters’ opinion. One an effective means of yielding greater equipment that cuts or moves rock or commenter estimated that equipment horsepower from smaller engines and coal; equipment that performs drilling retrofits for safety features and for mine- should be allowed on limited class or bolting functions; equipment that worthiness would increase equipment equipment, and that the exhaust moves longwall components; self- weight by at least 50 percent. Another components could be encased in propelled diesel fuel transportation commenter suggested that the proposed protective insulating material to units and lube units; and machines used weight limitation would result in eliminate any fire hazard. to transport portable fuel transportation overloading equipment units because of A number of commenters expressed units or lube units. These machines are light construction. Some suggested that concern that manufacturers of intended to move rock or coal or other the weight limitation for limited class equipment that was not specifically heavy loads, such as longwall equipment be increased to 7,500 or designed for use in mines would not components, or move large quantities of 8,500 pounds; others recommended that seek MSHA approval for their combustible diesel fuel as a normal part the limit be increased to 14,000 to equipment because the share of the of their duty cycle. Locomotives used to 15,000 pounds, to permit units to be market for mining applications was too transport rock or coal and portable manufactured with heavy steel to small to warrant the expense of diesel fuel transportation units or lube withstand collisions. One commenter developing power packages. units would also be in the heavy-duty recommended that the weight limitation A number of commenters stated that equipment category under the final rule. be reduced to 4,000 pounds for self- inclusion of equipment in a limited Graders would also be considered propelled equipment. class should depend on how the heavy-duty equipment, because they are A number of commenters were also equipment is being used rather than on used to move rock or coal. opposed to the 90-horsepower factors such as size and weight. Some of Equipment falling within the heavy- limitation, stating that engine these commenters suggested that light- duty equipment category under horsepower was no more an indication duty equipment include equipment that paragraph (a) is typically used for of whether equipment was heavy-duty does not move rock, coal, or longwall extended periods during a shift on a or light-duty than was equipment shields. Other commenters advocated continuous, rather than intermittent, weight. However, one commenter that all diesel-powered equipment, basis. This is in contrast to equipment recommended that the limitation be including limited class equipment, be that is used for limited periods during reduced to less than 70 horsepower. designed to be explosion-proof and be a shift, such as mantrips or supply Commenters were also concerned approved by MSHA under part 7. These vehicles. Heavy-duty equipment under about the prohibition against hydraulic commenters felt that establishing a the final rule also moves heavy loads or systems on limited class equipment. limited class of light-duty equipment performs considerable work as in the Several commenters stated that there would allow mine operators to use case of drilling machines. Equipment was no basis for excluding equipment equipment with inferior means of fire used to haul longwall components is with hydraulic systems from the limited prevention. typically operated at a consistently class, except for the fact that hydraulic One commenter recommended that a accelerated pace under an extremely fluid could present a fire hazard. These determination of the equipment heavy load. Fuel transportation units commenters suggested that equipment included in the limited class should be and lube units generally are larger with hydraulic systems that utilized based on MSHA’s evaluation of diesel machines specially designed to fire-resistant hydraulic fluid should be equipment fire experience in other transport and dispense diesel fuel, permitted. Some of these commenters industries and in other countries as to hydraulic fluid, grease, oil, and other also suggested that equipment with which types of equipment do and do not combustible materials. This equipment hydraulic systems should be eligible for pose a significant fire hazard. In also operates under a heavy load and the limited class category if the response to this comment, MSHA typically moves constantly around a equipment is equipped with a fire- acquired accident reports from the section during the course of a shift, suppression system. Other commenters Ministry of Labor, Province of Ontario, refueling equipment as needed. stated that equipment with hydraulic Canada, containing detailed information Equipment that performs drilling and systems had not been shown to be less of fires on diesel-powered equipment in bolting functions generally has an safe than equipment without such underground mines in Ontario for the engine that runs at a high rate of speed systems. Some pointed out that years 1984 through 1992. This and powers large hydraulic systems. hydraulic systems facilitate the information was carefully analyzed to Under the final rule heavy-duty Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55461 equipment must be provided with an would require major replacement of Paragraph (d) establishes a special automatic fire suppression system, diesel-powered portable equipment, equipment category for diesel-powered addressing the additional fire risks either by electric-powered machines or ambulances and fire fighting equipment, resulting from the way this equipment by diesel equipment furnished with which may be used underground only is used. Heavy-duty equipment also power packages. Other commenters in accordance with the fire fighting and produces greater levels of gaseous suggested that attended diesel evacuation plan required under existing contaminants, and under the final rule generators be added to the limited class § 75.1101–23. This special category was is therefore subject to weekly undiluted because they presented safety concerns included in the proposal under exhaust emissions tests under that were no greater than for welders § 75.1907(b), but has been included in § 75.1914(g), and is included in the air and compressors. this section of the final rule with the quantity calculation for ventilation of In response to these comments, any other categories of nonpermissible diesel-powered equipment under type of attended portable diesel- equipment. Equipment that falls into § 75.325(g). powered equipment may be light-duty this category is not required to have an Under paragraph (b) light-duty under the final rule, so long as it does approved engine or power package, or to equipment is defined as any other not perform any of the functions listed comply with the requirements of diesel-powered equipment that does not in paragraph (a). As discussed more §§ 75.1909 and 75.1910. Instead, such meet the criteria of paragraph (a). This fully above, the distinction between equipment must be used in accordance is in contrast to the approach taken in light-duty and heavy-duty equipment with the fire fighting and evacuation the proposed rule establishing a limited has less significance under the final rule plan required under existing § 75.1101– class of light-duty equipment. Light- than it would have had under the 23. duty equipment under the final rule proposal, since neither light-duty nor This provision was addressed by only may include, but is not limited to, heavy-duty nonpermissible equipment a few commenters, who supported the forklifts used to carry supplies, rock will be required to have a surface establishment of a special class of dusting machines, tractors not used to temperature-controlled power package diesel-powered equipment for move rock or coal, supply trucks, water or be subject to fully assembled machine emergency use, and has been adopted trucks, personnel carriers, jeeps, approval. essentially unchanged from the scooters, golf carts, and pickup trucks. One commenter suggested that the proposal. The equipment under this The equipment may be rubber-tired, term ‘‘attended’’ be defined in the final paragraph may be used only during crawler-mounted, or rail-mounted. rule, and paragraph (c) specifies that emergencies and the fire drills specified Under the final rule two machines of attended diesel-powered equipment for in the fire-fighting and evacuation plan. the same model could fall into different purposes of subpart T includes: any Very little equipment that is currently in equipment categories, depending on machine or device that is operated by a use falls into this category. Mines that how they are used. For example, a load- miner; and any machine or device that do have such equipment must provide haul-dump unit used to move rock or is mounted in the direct line of sight of MSHA with revised fire fighting and coal would be considered heavy-duty a job site located within 500 feet of such evacuation plans that adequately equipment, while an identical machine machine or device, which job site is address the use of this equipment. used exclusively to move supplies occupied by a miner. would be a light-duty machine, subject This definition of ‘‘attended’’ is Sections 75.1909 and 1910 Design and to different requirements. Although largely derived from the definition of Performance Requirements for these machines are of the same design, ‘‘attended’’ in existing § 75.1107–1 Nonpermissible Diesel-Powered they do not present the same risk of fire applicable to electric-powered Equipment because of the way they are used. They equipment, although it has been tailored Overview. Sections 75.1909 and also do not produce the same quantities to address safety concerns unique to 75.1910 of the final rule set forth the of exhaust contaminants: machines that diesel-powered equipment, such as the design and performance requirements are operated for extended periods of fact that fires on diesel-powered that apply to nonpermissible diesel- time under heavy load generate more equipment, unlike fires on electrical powered equipment, except for the contaminants than machines that are equipment, do not smolder for a very special category of emergency not. long time and therefore are less likely to equipment established under Equipment that is classified as light- be discovered before flaming and § 75.1908(d) of the final rule. Section duty may not be used, even spreading. For this reason and unlike 75.1909 requires, among other things, intermittently, to perform the functions equipment under § 75.1107–1, attended nonpermissible diesel-powered listed in paragraphs (a)(1) through (a)(5). equipment under paragraph (c) must be equipment to be provided with engines This is because equipment that performs continuously attended while it is approved under subpart F of part 7, fire heavy-duty functions poses an increased operating, regardless of whether it is suppression systems, fuel systems, and fire risk, resulting in the need for an during a production shift. Also unlike brakes. For ease of reference, electrical automatic fire suppression system, as equipment under § 75.1107–1, attended system requirements, which were required under § 75.1909 for heavy-duty equipment under paragraph (c) does not proposed under § 75.1909, have been equipment. On the other hand, heavy- need to be attended by the person adopted in the final rule in § 75.1910. duty equipment may be used to perform assigned to operate it. The definition of As explained in greater detail in the light-duty work. ‘‘attended’’ in this section permits preamble discussion for § 75.1908 of the The proposed restriction of portable prompt operator action in the event of final rule, the proposal would have limited class equipment to compressors a fault or fire on a diesel-powered established a ‘‘limited class’’ of light- and welders has not been adopted in the machine. As discussed elsewhere in this duty equipment, which, although final rule. Although one commenter did preamble, the category of ‘‘stationary required to have an approved engine, support this restriction, most unattended’’ equipment has not been was not otherwise subject to MSHA commenters were opposed to it, stating adopted in the final rule, and under approval. Instead, limited class that it was arbitrary and unjustified as § 75.1916(e) all diesel-powered equipment would have been governed well as impractical. One commenter equipment must be attended when by the design and performance stated that the proposed restriction operated. requirements set forth in proposed 55462 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations

§ 75.1909. This scheme was consistent further recommended that all diesel- special category of equipment under with the recommendations of the Diesel powered equipment in underground § 75.1908(d). The requirements of this Advisory Committee. Nonpermissible mines be permissible and equipped section are consistent with the equipment that did not meet the criteria with the explosion-proof equipment recommendation of the Advisory of the limited class would have been features required in areas of the mine Committee that such equipment be subject to fully assembled machine where coal is extracted and where provided with fire suppression system approval under subpart I of part 7, and higher methane levels are a concern. and fuel and electrical system would also have been required to be The final rule responds to protection. All nonpermissible equipped with a power package commenters opposed to full machine equipment, with the exception of the approved under subpart G of part 7. approval for nonpermissible equipment, special category of emergency Power packages provide the equipment and does not adopt the proposed equipment under § 75.1908(d), is also with safety features such as surface requirement for power packages on most required to be provided with an temperature controls, exhaust nonpermissible equipment. It should be approved engine within the time frames temperature controls, and safety noted, however, that all nonpermissible established in § 75.1907 of the final rule. shutdown capability. equipment, with the exception of Paragraph (a)(1), like the proposal, Although the proposal anticipated emergency equipment under requires that nonpermissible diesel- fully assembled machine approval of § 75.1908(d), is required to have an powered equipment be equipped with both permissible and nonpermissible engine approved under subpart E of part an engine approved under subpart E of diesel-powered equipment, MSHA 7. part 7. The final rule also requires that specifically solicited comments on In evaluating whether an approval the engine be equipped with an air filter whether nonpermissible diesel-powered program for nonpermissible diesel- and an air filter service indicator. The equipment should be approved by powered equipment was warranted in air filter must be sized and the service MSHA in an advance notice of proposed the final rule, MSHA considered indicator set in accordance with the rulemaking published on the same day whether the machine safety features set engine manufacturer’s as the proposed rule. Many commenters forth in proposed § 75.1909 for the recommendations. to the proposal and to the advance limited class of light-duty equipment Some commenters stated that notice were strongly opposed to fully could be modified to provide adequate approved engines were not necessary on assembled machine approval for protection for heavy-duty equipment. outby equipment. Other commenters nonpermissible equipment, stating that This review revealed that many recommended that all equipment used it was neither necessary for safety nor requirements in proposed § 75.1909 in outby areas be provided not only consistent with MSHA’s approach to could be applied directly to heavy-duty with an approved engine, but also with electrical equipment. These commenters equipment without revision, while other a permissible power package approved stated that approval of nonpermissible proposed requirements could be made under subpart F of part 7. diesel equipment would create suitable with slight revisions. The final rule adopts the proposed significant technical hurdles and place The safety features proposed in requirement that nonpermissible unnecessary financial burdens on mine § 75.1909 for limited class equipment equipment be provided with an operators, without any justification from have been adopted in the final rule in approved engine. Engines approved a safety perspective. These commenters §§ 75.1909 and 75.1910 to cover under subpart E of part 7 must meet recommended that the final rule set equipment that is larger and more specific gaseous emission standards and performance-oriented safety powerful than what would have been be provided with an approval plate requirements for nonpermissible covered under the proposed rule. This indicating the quantity of ventilating air equipment in mandatory standards in is in response to a number of needed to dilute gaseous contaminants part 75, and that the safety features that commenters who believed that these to acceptable levels. These requirements were proposed for the limited class of proposed requirements should be not only place limits on the quantity of light-duty equipment in § 75.1909 be applied to both heavy-duty and light- gaseous contaminants that an approved applied to all nonpermissible duty equipment, in lieu of a full engine may produce, they also provide equipment. machine approval program. In general, a scheme for control of those Many commenters were also opposed the proposed requirements have not contaminants through effective to the proposed requirement that most been substantially changed in the final ventilation. Commenters expressed nonpermissible equipment have a rule, although the final rule does adopt serious concern over unhealthful power package approved under subpart several additional requirements for exhaust emissions from diesel F or G of part 7. Commenters stated that heavy-duty equipment based on equipment in outby areas that may the protections afforded by a power requirements in part 36 or developed significantly affect the quality of air that package were unnecessary for from existing part 75 requirements miners breathe. In response to these equipment operated in areas of the mine applicable to electric-powered concerns, the final rule takes a where methane is not likely to machines. Other additions or revisions comprehensive approach in addressing accumulate, and that much of the have been made in response to health hazards presented by diesel nonpermissible diesel-powered comments received on proposed exhaust, and requires clean-burning equipment currently in use would have § 75.1909 and in response to the engines, approved by MSHA under to be either scrapped or significantly advance notice of proposed rulemaking. subpart E of part 7, on all diesel- retrofitted to comply with the proposed powered machines, including requirements, at tremendous expense. Section 75.1909 Nonpermissible nonpermissible equipment. Engines Several commenters pointed out that it Diesel-Powered Equipment—Design and installed in this equipment must would be impossible to retrofit some Performance Requirements therefore meet the emissions standards types of equipment because of design Section 75.1909 establishes design established in subpart E of part 7. limitations. and performance requirements for The final rule does not adopt the Other commenters supported full diesel-powered equipment used where suggestion of commenters who machine approval and power packages nonpermissible electric equipment is supported requiring all diesel for all nonpermissible equipment, and permitted, with the exception of the equipment in underground coal mines Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55463 to be permissible. The explosion- proof provision be revised to require a fuel tanks on equipment. Several models of features provided by a subpart F power system ‘‘specifically designed and pickup trucks are manufactured with package are not needed for outby constructed to minimize the possibility dual fuel tanks, and this configuration is equipment, because the equipment of a fire in case of a collision or acceptable under the final rule. operates in areas of the mine where refueling’’. The commenter stated that Paragraph (a)(3)(iii) requires that the methane is not expected to accumulate. fuel tanks on most light-duty fuel system be provided with a vent Electrical equipment without explosion- equipment, such as pickup trucks, opening that maintains atmospheric proof features has been operated safely already meet certain standards, and that pressure in the tank, and which is in outby locations for many years. it would be unwise from a safety designed to prevent fuel from splashing The requirement that the engine be standpoint to modify these tanks. The out. The proposed rule would have equipped with an air filter and an air final rule has not been revised in required that the size of the vent prevent filter service indicator has been added response to this comment. The fuel fuel from splashing out of the vent in response to commenters’’ statements system requirements in the final rule are opening. This requirement has been that clogged air filters were the single designed to address safety hazards modified slightly in the final rule to most frequent cause of smoky engines, presented by the use of diesel specify that the design rather than the resulting in the production of equipment in the underground mine size of the vent opening must prevent disproportionate quantities of carbon environment, and nonspecific concerns fuel from splashing out, in response to monoxide and diesel particulate. These about retrofitting equipment do not commenters who advocated components are typically supplied as outweigh the protections afforded by the requirements that were more part of the equipment, and the air filter fuel system criteria included in the final performance-oriented. This minor service indicator will enable the rule. However, a fuel system that meets revision will allow mine operators equipment operator and maintenance applicable industry standards would be increased flexibility in satisfying this personnel to ensure that the air filter is acceptable so long as it also meets the requirement. MSHA anticipates that the in good condition. Both the size of the criteria in paragraphs (a)(3)(i) through vent provided in the fuel filler cap will air filter and the setting of the air filter (xi). satisfy this requirement. service indicator are best determined by Paragraph (a)(3)(i) provides that the Paragraph (a)(3)(iv) requires a self- the engine manufacturer, and the final fuel system must have a fuel tank and closing filler cap on the fuel tank. The rule requires that these be determined in fuel lines that do not leak. The proposed proposed rule would have required accordance with the engine rule, unlike the final rule, would have either a tethered cap or a self-closing manufacturer’s recommendations. required that the fuel tank be of cap. The final rule requires a self- Paragraph (a)(2) has been added to the ‘‘leakproof construction.’’ Several closing fuel cap that will serve to final rule and requires that commenters stated that the term minimize fuel spillage, and responds to nonpermissible equipment be provided ‘‘leakproof construction’’ was commenters’’ serious concerns about the with at least one portable multipurpose ambiguous and needed to be defined in hazards of fuel spillage. dry chemical type (ABC) fire the final rule, or be revised to provide Paragraph (a)(3)(v) requires that the extinguisher, listed or approved by a for construction that was ‘‘designed to fuel tank, filler and vent be located so nationally recognized independent prevent leaks’’. Rather than providing a that any leaks or spillage during testing laboratory, and having a definition for ‘‘leakproof construction’’ refueling will not contact hot surfaces. 10A:60B:C or higher rating. The and specifying design or construction This requirement has been revised from extinguisher must be located within requirements to protect against leakage, the proposed rule, which would have easy reach of the equipment operator the final rule sets a performance required that these components be and be protected from damage. This standard and simply requires that the located to prevent fuel from contacting requirement has been added to the final fuel tank and fuel lines not leak, hot engine surfaces. The final rule has rule in response to a commenter who allowing mine operators the flexibility been revised from the proposal because supported requiring two chemical fire to determine how to best comply with of the application of the requirements of extinguishers accessible to each end of this requirement. Fuel lines have been this section to all nonpermissible diesel- the unit and protected from external included in this requirement under the powered equipment, not just equipment damage. MSHA agrees with this final rule, in response to commenters falling in the proposed limited class. recommendation, which is consistent who were concerned about fire hazards This modification recognizes that there with good fire prevention practices and presented by leaking fuel lines on are additional machine components, which will provide additional fire diesel-powered equipment coming into particularly on larger heavy-duty protection on diesel-powered machines. contact with hot engine surfaces. equipment, now falling under this One rather than two fire extinguishers Paragraph (a)(3)(ii) adopts the requirement that reach temperatures has been required, however, because proposed requirement that the fuel tank that could ignite diesel fuel. For one extinguisher, accessible to the be substantially constructed and example, brake components can reach operator and protected from damage, is protected against damage by collision. temperatures that are as high as engine adequate for virtually all diesel-powered Commenters generally supported this temperatures. equipment. As discussed elsewhere in requirement. The tank may be protected Paragraph (a)(3)(vi) requires that fuel the preamble, this equipment is also from damage by collision by being line piping be either: steel-wire required to be equipped with either an located within the frame components of reinforced; synthetic elastomer-covered automatic or manual fire suppression the machine, or be constructed of hose suitable for use with diesel fuel system, depending on the equipment material that is sufficiently sturdy so that has been tested and has been category. that the tank will not be damaged by determined to be fire-resistant by the Paragraph (a)(3) has been adopted collision with other vehicles or with the manufacturer; or metal. The proposal from the proposal, and requires that the mine roof, rib, or floor. It should be would have required metal fuel line equipment’s fuel system be specifically noted that although the term ‘‘tank’’ is piping. Several commenters stated that designed for diesel fuel, and that it meet used in the singular here and in other requiring fuel line piping to be made of specific additional criteria. One paragraphs of this section, the final rule metal was too restrictive. Several of commenter recommended that this is not intended to limit the number of these commenters stated that metal fuel 55464 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations lines could deteriorate over time as a section in conjunction with the weekly devices will satisfy the requirements of result of machine vibration, and that equipment inspections required by this section. The final rule has not been there were fuel lines made of other § 75.1914 of the final rule. These revised, however, because the language materials that were superior in strength requirements together adequately as proposed and as adopted in the final and performance to metal lines. The address the potential hazard created by rule does not preclude the use of a final rule has been revised from the leaking fuel lines. combination fuel filter/water separator. proposal to address these concerns. Paragraph (a)(3)(ix) requires fuel lines The proposed requirement for a fuel Synthetic elastomer-covered hose must to be separated from electrical wiring tank drain plug has not been adopted in be of a type that is suitable for use with and protected from damage in ordinary the final rule. Although the drain plug diesel fuel, and must have been tested use. This requirement has been adopted is usually provided on larger mining and determined to be fire-resistant by from the proposal, and was supported equipment, it is typically not provided the manufacturer, using any one of a by several commenters, who mentioned on light-duty equipment such as pickup number of fire-resistance tests. Such incidents where fuel lines were exposed trucks. Although a drain plug is a tests have been developed by a number to damage. Separation of fuel and convenient feature for persons of organizations, including electrical lines can generally be easily performing equipment maintenance, it Underwriters Laboratories, The Society accomplished. On machines where both is not necessary from a strict safety of Automotive Engineers, and the U.S. electrical lines and fuel lines are routed standpoint. For these reasons, a fuel Coast Guard. MSHA’s tests for flame- through a machine articulation joint, tank drain plug is not required under resistance specified in regulations at fuel lines must be bundled separately the final rule. part 18 would also be appropriate. This from electrical lines and must be Paragraph (a)(4) adopts the will ensure that material used for diesel positioned so that fuel leaks will not requirement of the proposal for a sensor fuel lines will have adequate fire- contact electrical lines. to monitor the temperature and provide resistance in the underground coal mine Paragraph (a)(3)(x) requires that a a visual warning of an overheated environment. manual shutoff valve be installed in the cylinder head on air-cooled engines. Paragraph (a)(3)(vii) adopts the fuel system as close as practicable to the This feature is necessary because it proposed requirement that fuel line tank. The language of the final rule has reduces potential fire hazards on air- piping be clamped. One commenter been modified from the proposal, which cooled engines. While such sensors do stated that this requirement, along with would have required the valve to be not completely eliminate the hazards of the requirement that primary fuel lines located ‘‘near’’ the tank. This change is hot surface temperatures, they do be located so that fuel line leaks do not made in response to a commenter who provide additional protection by contact hot surfaces, would limit stated that valves located ‘‘near’’ the warning the equipment operator of machine design flexibility. This tank would not necessarily be easily overheating. The proposed rule would commenter recommended that these accessible to the equipment operator or have required a temperature sensor to be requirements be revised to provide that other mine personnel when the fuel located in the engine compartment that the manufacturer’s design provide supply needs to be shut off in an would automatically activate an intake maximum protection from damage. The emergency or for maintenance. The air shutdown device to stop the engine final rule does not adopt this suggestion. commenter recommended that this before the engine compartment The requirements identified by the aspect of the proposal be revised to temperature exceeded the actuation commenter are intended to address require shutoff valves as close as temperature of the fire suppression potential hazards on diesel equipment, practicable to the tank, and the final system. This requirement has not been particularly fire hazards. The fact that rule adopts this comment. adopted in the final rule. Although there may be some resulting limitations Paragraph (a)(3)(xi) adopts the commenters generally supported the on machine design, alone, does not proposed requirement that equipment concept behind this requirement, they warrant the elimination of requirements be provided with fuel filter(s) and a had varied concerns about its that address specific hazards. water separator. The final rule application and impracticality from a Paragraph (a)(3)(viii), like the substitutes the term ‘‘water separator’’ technological standpoint. One proposal, requires primary fuel lines to for the term ‘‘water strainer’’ used in the commenter stated that this requirement be located such that leaks do not contact proposal. The terms mean the same could create a safety hazard because the hot surfaces. The fuel lines referred to thing, but ‘‘water separator’’ is more engine could be shut off unexpectedly. in this paragraph are the supply and commonly used and more widely Since loss of steering and braking could return lines connecting the fuel tank to understood. Although commenters result, this commenter recommended the engine, not those lines that are generally supported this requirement, that the engine be shut off only upon integral to the engine and installed by one commenter stated this requirement actuation of the fire suppression system. the engine manufacturer, such as the should be eliminated because fuel filters Several commenters stated that use of lines connecting the injector pump to and water separators were not manual fire suppression systems on the injectors. Several commenters necessary. MSHA disagrees with this equipment was incompatible with this supported this requirement, pointing to commenter, and the proposed requirement. the potential for fire resulting from requirement has been included in the MSHA agrees that this proposed leaking fuel dripping on hot exhaust final rule. Fuel filters filter out requirement could have resulted in the components. One commenter particulate matter in fuel, thereby equipment losing control of the machine recommended that the engine be reducing diesel exhaust emissions as in the case of unexpected engine designed to shut down in the event of well as slowing engine wear. Water shutdown, and the engine should only a leaking fuel line. This comment has separators filter out water in the fuel, be shut down upon actuation of the fire not been adopted in the final rule, in and minimize fuel system corrosion. suppression system. The automatic part because MSHA is unaware of any Several commenters recommended that engine shutdown under the proposal existing technology that would provide the proposed requirement be revised to would have been triggered before the such a function. Additionally, such a permit the use of a single device that engine temperature exceeded the requirement is not necessary, given the functions as both a fuel filter and a actuation temperature of the fire fuel system design criteria under this water separator. Such combination suppression system. Section 75.1911(d) Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55465 of the final rule already requires fire electrical lines is an essential element in equipment, are unacceptable under the suppression systems for diesel-powered preventing fires. The final rule does not final rule. This requirement is added to equipment to provide for automatic specify what method must be used to the final rule in response to the engine shutdown, and a redundant comply with this requirement, because recommendation of two commenters, requirement for automatic engine a number of different methods, one of whom noted that exhaust gases shutdown at a lower temperature is not including guarding, shielding as can build up in the operator’s necessary. An increase in the engine recommended by the commenter, or compartment of a machine. compartment temperature may reflect relocation of fuel, hydraulic or electrical Paragraph (a)(9) has been added to the an engine malfunction, such as loss of lines, can provide adequate protection. final rule in response to a commenter engine coolant, but does not necessarily Paragraph (a)(6) has been added to the and as a result of the expansion of the indicate a safety hazard. Linking engine final rule and requires that hydraulic class of equipment subject to the shutdown to the engine compartment tanks, fillers, vents, and lines be located requirements of this section. This temperature would have provided so that any spillage or leaks will not paragraph requires that a means be protection against engine damage rather contact hot surfaces. This requirement provided to prevent unintentional free than addressing a discrete safety hazard. has been added to the final rule to and uncontrolled descent of personnel- Equipment manufacturers routinely supplement the guarding of hydraulic elevating work platforms. Personnel- provide gauges in the equipment lines in paragraph (a)(5) and is elevating work platforms normally are operator’s compartment that indicate supported by the Ontario fire accident equipped with hydraulic systems and engine faults. Equipment operators will data, which show that leaking hydraulic would consequently not have been be alerted by this warning system and lines contribute to fires. This eligible for inclusion in the category of will then be able to shut the engine requirement was not included in the limited class equipment under the down, if appropriate. For these reasons, proposal because, as explained in the proposed rule. This requirement is the proposed requirement for automatic discussion of paragraph (a)(5), hydraulic currently applied to equipment engine shutdown based on engine systems would not have been permitted approved under existing part 36. compartment temperature has not been on the limited class of light-duty Hydraulically operated personnel- adopted in the final rule. equipment to which the requirement elevating platforms meeting the Paragraph (a)(5) requires that guarding would have applied under the proposal. applicable American National Standards be provided to protect fuel, hydraulic, This requirement will ensure that spills Institute criteria for personnel-elevating and electric lines when such lines pass and leaks of combustible hydraulic fluid platforms (i.e., ANSI A92.2 and A.92.5) near rotating parts and to protect the do not contact hot equipment surfaces. would be acceptable. This requirement lines in the event of shaft failure. This This requirement can be satisfied by also applies to work platforms which requirement is intended to prevent leaks relocation of machine components, or utilize other methods to raise the and short circuits caused by fuel, by directing spills and leaks away from platform, such as wire ropes. The hydraulic, and electric lines abrading hot surfaces by means of splash guards machine must be provided with a against rotating parts. Rotating parts or other such devices. specific feature that prevents the free include machine components such as Paragraph (a)(7) requires that and uncontrolled descent of the pulleys, belts, fans, and shafts. This reflectors or warning lights which can platform in the event of a failure in the requirement is similar to that of the be readily seen in all directions be lifting system, such as a ruptured proposal, although the proposed rule mounted on equipment. This hydraulic hose or broken wire rope. In had specified that ‘‘adequate guarding’’ requirement was generally supported by such a situation, the platform must be provided and did not include commenters and is adopted unchanged descend at a rate which will not protection for hydraulic lines or from the proposal. A determination of endanger miners located on or below protection in case of shaft failure. The whether the reflectors or warning lights the platform. word ‘‘adequate’’ is redundant in this can be ‘‘readily seen’’ must be based on Paragraph (a)(10) has been added to context and has not been adopted in the the unique mine conditions, and must the final rule and requires that all final rule. The reference to ‘‘hydraulic take into account such things as nonpermissible equipment be provided lines’’ was not included in the proposal equipment size in relation to the mine with a means to prevent the spray from because no hydraulic systems were entry and undulating mine terrain. ruptured hydraulic or lubricating oil permitted on the limited class of Paragraph (a)(8) has been added to the lines from being ignited by contact with equipment for which the requirement final rule in response to comments, and engine exhaust system component was proposed. Under the final rule these requires that a means be installed on the surfaces. This requirement achieves the requirements apply to larger equipment equipment to direct exhaust gas away goal of the limitation of surface with hydraulic systems, and protection from the equipment operator and temperatures in proposed subpart G of for hydraulic lines has therefore been persons on board the machine. This part 7, which is not adopted in the final added. Guarding to protect against shaft requirement is intended to provide for rule, and recognizes that high surface failure has also been added to the final the discharge of exhaust gases away temperatures on diesel-powered rule to address the design features of the from persons on the machine to the equipment can be controlled in ways larger equipment now governed by these greatest extent practicable, minimizing other than the water-jacketing of hot requirements. MSHA has received their exposure to excessive levels of engine components contemplated under reports of several fires ignited by broken unhealthful diesel exhaust proposed subpart G. The requirement of shafts that damaged hydraulic and contaminants. The exhaust pipe must this paragraph, in conjunction with electrical lines. direct the flow away from any area other requirements in the final rule for One commenter supported this where a machine operator or a control of fuel sources on diesel- requirement, while another commenter passenger could be located. Exhaust powered machines, will provide believed that it was unnecessary. A pipes that extend straight up and that effective fire prevention on third commenter recommended that the would allow the exhaust to flow back nonpermissible diesel-powered engine compartment be shielded by over the equipment operator as the equipment used underground. metal from hydraulic components. machine moves forward, such as on The requirements of this paragraph Protection for fuel, hydraulic, and some agricultural and commercial are performance-oriented, and are 55466 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations intended not only to allow flexibility in exiting the operator’s compartment. In should also change accordingly, to compliance but also to accommodate many articulated machine designs, retain the automobile orientation. new technology developed in the future. personnel must enter the equipment Paragraph (b)(4), like the proposal, One method of achieving compliance operator’s compartment through the requires self-propelled equipment to be with this requirement is through the use articulation area. If the articulation joint provided with an audible warning of a water-cooled manifold. A safety were to close as the operator entered the device conveniently located near the component system certified under part compartment, the operator could be operator. Such a device could be a horn 36 or a power package approved under crushed. This requirement will also or bell, and must be capable of being subpart F of part 7 of the final rule also protect miners who encounter a heard over the operation of the machine satisfies the requirement of this machine that has been shut down and by miners in the area. Commenters were paragraph. who may accidentally activate the generally supportive of this provision. Non-absorbent insulating materials control levers. Under the final rule, the Paragraph (b)(5) requires that lights be are also available for use on mining stored hydraulic energy does not have to provided and maintained on both ends equipment to reduce the surface be dissipated instantly. The time of the equipment. Equipment normally temperature of diesel exhaust system permitted for dissipation of the stored operated in both directions must be components. Such materials, which energy will depend on the machine equipped with headlights for both were first developed for diesel-powered design and the amount of movement the directions. The proposal would have military vehicles, are impervious to machine is capable of after shutdown. required self-propelled equipment to be hydraulic fluid, lubricating fluids, and Paragraph (b)(2) has been added to the provided with headlights, tail lights, diesel fuel, and have been successfully final rule in response to a specific and back-up lights. The requirement in used on mining equipment in the comment that equipment should only be the final rule is derived from the proposal but has been revised to better United States and Canada. Use of these able to start in neutral. This paragraph address typical lighting configurations materials can reduce surface requires equipment to be provided with on all types of nonpermissible temperatures of exhaust components to a neutral start feature which ensures ° equipment, not only the limited class of less than 300 F, and may also be used that engine cranking torque will not be equipment that would have been to prevent contact of hydraulic fluid and transmitted through the powertrain and affected under the proposal. For lubricating oil with hot surfaces. The cause machine movement on vehicles equipment such as ramcars, headlights goal of applying the insulating material utilizing fluid power transmissions. on each end of the machine would be is to substantially reduce the surface MSHA agrees with the commenter that area of the exhaust system that is at required, but not tail lights or back-up this requirement is necessary, because elevated temperatures, because of the lights. For pickup trucks, headlights and some types of diesel-powered direct relationship between the area of back-up lights installed as original equipment may be started with the a hot surface and the likelihood of equipment would satisfy this transmission in gear. This could result ignition of a spray of hydraulic fluid. A requirement. The lights required by this in power being delivered to the driving large area of exhaust component, which paragraph are in addition to the warning wheels of the machine before the includes the turbocharger, at a high lights or reflectors required by equipment operator is in control of the temperature is more likely to ignite a paragraph (a)(7) of this section. vehicle, endangering both the operator spray. Under the proposal lights would have The use of shielding or partitions to and miners working in the vicinity of been required to be ‘‘protected from isolate hydraulic components from the the equipment. Equipment must be accidental damage’’. The final rule engine would also satisfy the designed such that its transmission is in requires instead that lights be requirement of this paragraph, either neutral or park before the starter ‘‘maintained’’, in response to a preventing the fluid from contacting the will crank the engine. commenter who questioned what was engine in the event of a leak. One For machines with steering wheels, meant by ‘‘protected from accidental commenter retrofitted a diesel-powered brake pedals, and accelerator pedals, damage.’’ Under the final rule machine to provide shielding of the paragraph (b)(3) requires that the equipment lights must be kept in engine. controls be arranged consistent with working order, and replaced if they burn Paragraph (b) sets forth additional standard automobile orientation. This out or are damaged. requirements for self-propelled requirement has been added in response Although most commenters generally nonpermissible diesel-powered to a commenter who was concerned that agreed with the proposed requirement, equipment, which are specifically equipment operators could become one commenter supported a designed for equipment that moves confused in the operation of equipment requirement for back-up alarms or other under its own power, as opposed to controls. Under this paragraph the brake means to alert miners to a change in the equipment that is towed. Paragraph pedal must be on the left and the direction that equipment is moving. (b)(1) has been added to the final rule accelerator must be on the right when Although a back-up alarm may be and requires a means to ensure that no the operator is facing the controls. appropriate on some equipment, an stored hydraulic energy that will cause Clockwise rotation of the steering wheel alarm on equipment that normally machine articulation is available after must turn the machine to the right, and operates in both directions is not the engine is shut down. As discussed counter-clockwise rotation of the advisable because the alarm would be elsewhere in the preamble, steering wheel must turn the machine to set off on a regular basis, defeating its requirements relating to hydraulic the left. For machines with seating effectiveness as a warning system. This systems were not included in the perpendicular to the direction of travel, suggestion has therefore not been proposal because the affected the forward direction of travel and the adopted in the final rule. equipment could not have hydraulic automobile orientation of the controls Paragraph (b)(5) also requires systems. This requirement is intended are to be defined with respect to the equipment that normally operates in to eliminate accidents where an front end of the equipment. For both directions to be equipped with equipment operator inadvertently machines where the operator changes headlights for both directions. One activates the steering controls on seats depending on the direction of commenter recommended that lights be articulated vehicles when entering or travel, the machine control movements designed for operation in both Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55467 directions at once. This commenter systems, those links must provide for prohibited. Because the temperature of noted that normally the light switch independent actuation of the brake hydraulic brake fluid increases due to allows the lights to be on in only one systems in the event of the failure of one usage, a column of fluid trapped at a direction and that it would be beneficial of the links. Drive line brakes are not sufficient pressure will initially apply to observe the load while traveling in adequate because of the frequent failure the brakes sufficiently to hold the the other direction. Although this of universal joints. The failure of the machine stationary. However, as the feature may be appropriate under some universal joint could result in the loss fluid cools it contracts, lowering the circumstances, it would provide no of all braking ability if a second brake pressure and possibly releasing the significant safety benefit and is not system is not provided. Most brakes. These devices are not permitted warranted for inclusion as a general agricultural equipment and some even as supplemental devices, because machine feature. In many mines, the commercial equipment used in mines, of the risk that equipment operators fact that lights are illuminated in only such as high lifts or backhoes, may need would use them as park brakes even if one direction at a time allows other a retrofit of their braking systems to another park brake is provided. Several miners in the vicinity to determine the comply with this requirement. fatal accidents have been attributed to equipment’s direction of movement and Several commenters supported this use of these devices, also called ‘‘mico provides some safety benefit. requirement and recommended two lock braking systems’’. Illumination of both sets of lights at the braking systems independent of each This requirement does not apply to same time would eliminate this other in all working aspects. Other normal automotive-type service brakes capability, and this suggestion has commenters noted that a single brake which trap a column of fluid, as long as therefore not been adopted in the final system would be adequate for tractor- the operator is applying pressure to the rule. type vehicles because they travel at foot pedal. This requirement also does Paragraph (b)(6) requires that self- speeds of less than 15 mph. MSHA not preclude the use of hydrostatic drive propelled nonpermissible equipment be disagrees that the low speeds of this wheel motors that are designed and provided with service brakes that act on type of equipment eliminates the need maintained to function as service each wheel of the vehicle and that are for two brake systems. Failure of an brakes. These wheel motors do not designed such that failure of any single equipment’s brake system in the necessarily lose their service braking component, except the brake pedal or confined area of an underground coal ability if the fluid cools or if minimal similar actuation device, does not result mine could result in serious injury or leakage occurs. The wheel motors can in a complete loss of service braking death, even at speeds of 15 mph or less. act to maintain continuous pressure in capability. This paragraph requires two The final rule therefore does not the braking circuit. Although separate brake systems and ensures that, incorporate this comment. Other hydrostatic wheel motors can function in the event of the failure of one braking commenters were of the opinion that the as adequate service brakes, these system, the other system can bring the brake systems should not be separate for systems do not provide adequate machine to a controlled stop. The only each wheel. This recommendation has parking brake capability. For the wheel common component permitted in the been incorporated into the language of motor to maintain pressure in the two systems is the brake pedal or a the final rule. braking circuit, the wheel must turn similar device, such as a lever or button Paragraph (b)(7) has been adopted slightly, thereby permitting the machine that is actuated by the equipment unchanged from the proposal and to move very slowly down the grade. operator. This requirement has been requires self-propelled nonpermissible This movement is insignificant during adopted from the proposal with slight equipment to be provided with service the short period of time the service revisions to specify that the service brakes that can safely bring the fully brakes are applied. However, if wheel brakes ‘‘act on each wheel’’ instead of loaded vehicle to a complete stop on the motors are used as parking brakes, the ‘‘for each wheel’’. This will allow the maximum grade on which it is operated. machine can move a significant distance use of axle brakes, which act on all of No stopping distance or braking force is when the equipment operator is away the wheels on that axle. This specified in the final rule, to allow from the machine. This can endanger requirement prohibits drive line brakes flexibility in equipment design and miners who may be working near the in which failure of a single drive shaft usage. Compliance with this machine in the confined area of the or chain results in the loss of all braking requirement is highly site-dependent mine. capability. A split brake system with because of the variation in mine grades. Paragraph (c) has been added to this two completely independent hydraulic The mine operator is responsible for section of the final rule to specifically circuits with an automotive-type dual ensuring that equipment with adequate address self-propelled nonpermissible piston master cylinder complies with grade-holding ability is used at a heavy-duty diesel-powered equipment this requirement. particular location. Commenters meeting the requirements of The proposal provided that failure of generally supported this requirement. § 75.1908(a), except rail-mounted one ‘‘brake line’’ must not result in a Paragraph (b)(8) has been added to the equipment. These requirements have complete loss of service braking final rule and requires that no device been added to the final rule in response capability. This language has been that traps a column of fluid to hold the to the additional types of equipment changed to provide that failure of any brake in the applied position be that are now subject to the requirements ‘‘single component’’ must not result in installed in any brake system, unless the of this section. Heavy-duty equipment a complete loss of service braking trapped column of fluid is released that hauls rock, coal, or longwall capability, to conform the requirement when the operator is no longer in components or transports large to the expanded range of equipment that contact with the brake activation device. quantities of diesel fuel are governed by is governed by this requirement under This requirement prohibits the these safety requirements, and must be the final rule. installation of ‘‘park’’ brakes devices provided with a supplemental braking The brake pedal or other interface which rely on a trapped column of system that meets specified criteria. The between the equipment operator and the fluid, and has been included in criteria for these braking systems were braking system is excluded from this response to the suggestion of developed from the criteria contained in requirement. If the pedal is connected to commenters. The use of such devices § 75.523–3, applicable to automatic more than one link to activate the brake can present serious hazards, and are emergency parking brakes on similar 55468 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations types of electrical equipment. There was the engine operating, and a means to during movement of disabled widespread support for applying these release and reengage the brakes without equipment. This requirement was braking requirements to diesel-powered the engine operating; and (6) has a developed from existing § 75.523–3(e), equipment, in comments submitted in means to ensure that the supplemental and requires the machine operator to set response to the advance notice of braking system is released before the the brakes when not at the controls. proposed rulemaking addressing equipment can be trammed, and is However, this provision is not intended equipment approval and machine safety designed to ensure that the brake is fully to suggest that it would be a safe features. Although there was a released at all times when the practice for the operator to apply the difference of opinion among these equipment is trammed. brake and leave the machine with the commenters as far as whether these Paragraph (c)(6) has been added to the engine running. braking requirements should be final rule and requires that the Paragraph (f) has been added to the incorporated as part of an equipment supplemental braking system have a final rule as a result of MSHA’s review approval program, commenters did means to ensure that the system is of the Ontario fire data, and requires agree that they be included as machine released before the equipment can be self-propelled personnel-elevating work features either in an approval program trammed. It further requires that the platforms be provided with a means to or as mandatory safety standards in part system be designed to ensure the brake ensure that the parking braking system 75. Commenters also recommended that is fully released at all times while the is released before the equipment can be there should be separate brake equipment is trammed. This trammed, and that the platforms be requirements for rail-mounted requirement is added to the final rule to designed to ensure the brake is fully equipment. The Agency agrees with address the hazard of dragging brakes, released at all times while the these comments, and has concluded that which were the cause of numerous fires equipment is trammed. MSHA’s review existing brake requirements in reported in the Ontario fire data of the Ontario fire data revealed a high §§ 75.1404 and 75.1404–1, which apply analyzed by MSHA in response to a number of personnel-elevating vehicle to both electric and diesel-powered rail- commenter’s recommendation. Some fires caused by dragging brakes. The mounted equipment, provide sufficient manufacturers install a lever on the final rule applies the same requirement protection. Rail-mounted equipment has transmission gear selector to ensure that to personnel-elevating vehicles in this therefore been specifically excluded the supplemental brakes are released. paragraph as applies to self-propelled from this requirement under the final This lever automatically releases the heavy-duty nonpermissible equipment rule. brake when the operator shifts the under paragraph (c)(6). transmission into gear. Paragraph (g) has been added to the Existing § 75.523–3 specifies different Paragraph (d) applies to self-propelled final rule and requires that any requirements for two types of electric- nonpermissible light-duty diesel- nonpermissible equipment that powered equipment: haulage equipment powered equipment meeting the discharges its exhaust directly into a and all other equipment. Electric- requirements of § 75.1908(b), except return air course be provided with a powered haulage equipment is very rail-mounted equipment. This power package approved under subpart similar in function to the heavy-duty provision, which has been adopted from F of part 7. The basis for this diesel-powered equipment subject to the proposal, requires that the requirement is the possibility that the this requirement. Paragraphs (c)(1) equipment be provided with a parking return air course may contain high through (c)(5) of this section of the final brake that holds the fully loaded levels of methane, which could be rule closely track the brake system equipment stationary on the maximum drawn into the machine’s exhaust requirements for electric haulage grade on which it is operated despite system as it cools after engine equipment in existing § 75.523–3, with any contraction of the brake parts, shutdown. This creates the potential for the exception of the requirement that exhaustion of any nonmechanical ignition of the methane by the hot the brake be engaged by an emergency source of energy or leakage. This surfaces of the diesel engine. As a result, deenergization device or panic bar. A requirement was developed from the final rule requires equipment which panic bar is appropriate for only some existing § 75.523–3(d), which addresses discharges its exhaust directly into the types of permissible diesel-powered parking brakes for electric-powered return to be furnished with the fire and equipment, and will be addressed equipment other than haulage explosion protection provided by a during the part 36 approval process. equipment, which is similar to the subpart F power package. Equipment Panic bars are not required for equipment in the light-duty category without a subpart F power package must nonpermissible diesel-powered under § 75.1908(b) of the final rule. discharge its exhaust into intake air. equipment. Under the final rule, self- A parking brake meeting the Under the proposed rule all propelled nonpermissible heavy-duty requirements of paragraph (d), rather nonpermissible equipment, with the diesel-powered equipment, except rail- than the supplemental brake system exception of a limited class of light-duty mounted equipment, is required to have required for heavy-duty equipment equipment, would have been required to a supplemental braking system that: (1) under paragraph (c), is adequate for be equipped with a power package Engages automatically within 5 seconds light-duty equipment, which is typically approved under either subpart F or G of of shutdown of the engine; (2) safely used for transportation or moving of part 7. Subpart F power packages are brings the equipment when fully loaded supplies on an intermittent basis. equipped with spark arresters and flame to a complete stop on the maximum Paragraph (e) has been added to the arresters, which significantly reduce the grade where it is operated; (3) holds the final rule as a result of the inclusion of likelihood that equipment will ignite equipment stationary, despite any requirements for supplemental and park explosive levels of methane. Because contraction of brake parts, exhaustion of brake systems under paragraphs (c) and the final rule does not require power any nonmechanical source of energy, or (d) of this section. This paragraph packages on nonpermissible equipment, leakage; (4) releases only by a manual requires that the supplemental and park this requirement has been added to the control that does not operate any brake systems required by paragraphs final rule to ensure that nonpermissible equipment function; (5) has a means in (c) and (d) be applied when the equipment that discharges it exhaust the equipment operator’s compartment equipment operator is not at the directly into a return air course, which to apply the brakes manually without controls of the equipment, except could contain explosive levels of Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55469 methane, will not create an explosion of the final rule requires all diesel- The proposal would have required a hazard. powered equipment to be attended means to prevent inadvertent movement Paragraph (h) requires that self- while it is being operated. as well as safety chains or other propelled nonpermissible heavy-duty An automatic fire suppression system connections for equipment being towed, equipment meeting the requirements of is needed on equipment that presents a but would have required a fire § 75.1908(a) be provided with an greater fire risk. Good fire fighting extinguisher instead of an automatic fire automatic fire suppression system practice demands that a fire be suppression system. The proposal meeting the requirements of § 75.1911. suppressed as early as possible, and would also have required the equipment Paragraph (i) requires that self-propelled several reports of fire indicate that the to be provided with a sensor to monitor nonpermissible light-duty equipment rapid growth of a fire prevented the equipment operation that would stop meeting the requirements of equipment operator from actuating the § 75.1908(b) be provided with a manual manual fire suppression system. the engine when an equipment or automatic fire suppression system Automatic systems respond quickly to malfunction would result in the creation meeting the requirements of § 75.1911. fire without operator intervention, and of a hazard. Under the proposed rule, all are needed on equipment that operates The proposed requirement for sensors nonpermissible equipment would have frequently for long periods of time to monitor the operation of portable been required to be provided with an under high load, presenting an equipment has not been adopted in the automatic fire suppression system. increased fire risk. Compressors and final rule. Several commenters As explained in greater detail in the other non-self-propelled equipment also expressed confusion as to what these preamble discussion for § 75.1911 of the operate for long periods of time under devices were intended to monitor, and final rule, some commenters supported high load. This results not only in high suggested that this requirement be automatic fire suppression systems for engine temperatures but also increases eliminated because it was vague and all types of equipment, while others the possibility of mechanical failure, ambiguous. The proposed requirement expressed support for automatic fire presenting ignition and fuel sources. To was intended to ensure that general suppression systems on portable or address these hazards, automatic fire safety devices supplied as original unattended equipment but were suppression systems meeting the strongly opposed to requiring automatic requirements of § 75.1911 of the final equipment features, such as low oil fire suppression on all types of rule are required under paragraph (h) for sensors or high temperature sensors, nonpermissible diesel-powered self-propelled heavy-duty were maintained in proper working equipment. These commenters stated nonpermissible equipment, and under condition. However, MSHA has that automatic fire suppression systems paragraph (j)(3) for both heavy-duty and concluded that it would be extremely were much more difficult to maintain, light-duty equipment that is not self- difficult to develop a standard that is and were unnecessary for equipment propelled. Paragraph (i) provides that any more specific than what was that was attended by an equipment self-propelled light-duty nonpermissible proposed that would be suitable for the operator. These commenters suggested equipment may be provided with either variety of monitors and sensors that may that mine operators should have the a manual or an automatic system that be installed on equipment. In light of option of installing either manual or meets the requirements of § 75.1911. these circumstances, and in light of the automatic systems on self-propelled Paragraph (j) requires nonpermissible fact that all equipment used in equipment, stating that the equipment diesel-powered equipment that is not underground coal mines is required to operator is in the best position to detect self-propelled to be provided with be maintained in safe operating machine fires, and would be able to features in addition to those listed in condition under existing § 75.1725, this actuate a manual fire suppression paragraph (a). These features include a requirement has not been adopted in the system more easily than an automatic means to prevent inadvertent movement final rule. system. Other commenters stated that it of the equipment when parked, safety might be difficult for an equipment chains or other suitable secondary A number of commenters operator to actuate a manual system connections on equipment that is being recommended that additional depending on the size and type of the towed, and, as discussed above, an equipment safety features be required in fire, expressing concern that an automatic fire suppression system the final rule that were not included in equipment operator could be overcome meeting the requirements of § 75.1911. the proposal. Several commenters by the effects of a fire or explosion and A requirement for automatic fire expressed concern about limited not be able to manually extinguish the suppression for non-self-propelled visibility from the operator’s fire. equipment has been retained in the final compartment on certain types of large As discussed more fully under rule in recognition of the fact that non- diesel-powered equipment. The final § 75.1911 of the preamble, the Ontario self-propelled equipment is typically rule does not adopt these commenters’ fire accident data indicates that heavy- operated under load for extended recommendations. Although this duty diesel-powered equipment, such as periods of time, resulting in the need for concern is addressed to some extent by the type specified in § 75.1908(a) of the automatic rather than manual fire § 75.1916 of the final rule, which final rule, presents a much greater fire suppression to address the additional requires that mines using diesel- hazard than light-duty equipment. fire risks. MSHA intends that automatic powered equipment establish and Although light-duty equipment still fire suppression systems be provided for follow standardized traffic rules, MSHA presents some fire risk, a manually- those machines, such as compressors, actuated fire suppression system welders, and generators, that may have has concluded that the issue of operator provides adequate protection if the some limited capacity for self- equipment design and visibility should equipment is attended and provided propulsion but which essentially be addressed in the context of all types with additional safety features for function as portable equipment, i.e., of equipment, not only diesel-powered protection of fuel, hydraulic, and where the equipment operator performs equipment. Specific provisions on electrical systems under this section and a function some distance from the operator visibility have therefore not § 75.1910 of the final rule. As noted machine while the equipment is been included in the final rule. elsewhere in this preamble, § 75.1916(d) running. 55470 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations

Section 75.1910 Nonpermissible the special category of emergency Paragraphs (b) and (c) are adopted Diesel-Powered Equipment; Electrical equipment under § 75.1908(d) of the from the proposal and were developed System Design and Performance final rule. The requirements in this from existing approval requirements for Requirements section would apply, for example, to electrical systems on other types of This section addresses electrical circuits for instrument panel gages and diesel-powered equipment. Paragraph system requirements for nonpermissible machine lights on most equipment (b) requires that each electric conductor diesel-powered equipment. These utilizing storage batteries and integral from the battery to the starting motor be requirements were proposed in charging systems. Accordingly, provided with short circuit protection, § 75.1909 with other equipment safety electrical systems on nonpermissible and requires that the short circuit requirements that would have applied diesel-powered equipment without protective device be placed as near as to a limited class of nonpermissible storage batteries and charging systems practicable to the battery terminals. light-duty equipment, but in the final are not governed by the requirements of Paragraph (c) requires that each branch this section. Additionally, the circuit conductor connected to the main rule are included separately in requirements of this section do not circuit between the battery and the § 75.1910. Faulty equipment electrical systems apply to electrical circuits and charging generator be provided with have frequently been the cause of components on equipment that is not circuit protection. When complied with, equipment fires, and the requirements directly connected to or otherwise these requirements will provide all of this section address the hazards powered from a separate electrical electric conductors and circuits with associated with these systems. Although system utilizing storage batteries and an circuit protection and will minimize the integral charging system. Both types of hazards of fire due to circuit failure. commenters generally supported the systems should be designed and Paragraph (d), like the proposal, proposed requirements, one commenter maintained in compliance with existing requires that a main circuit-interrupting suggested that these requirements not be safety standards in part 75 for device be provided in the electrical adopted in the final rule, because some underground coal mines. system so that power may be equipment is designed for highway use Several commenters suggested that disconnected from the equipment, at or and meets safety standards that have the proposed electrical system near the battery terminals, in the event been developed by the industry over requirements not be adopted in the final of an emergency. The device must be many years. The commenter asserted rule, and instead that the final rule located as close as practicable to the that changing the design of those provide that electrical systems on battery terminals and be designed to machines’ electrical systems would diesel-powered equipment comply with operate within its electrical rating have an adverse impact on machine existing part 75 electrical safety without damage. This paragraph also safety. MSHA is aware that electrical standards for nonpermissible requires that the device not systems on certain types of diesel- equipment. Some of these commenters automatically reset after being actuated, powered equipment, such as utility also suggested that more performance- and that magnetic devices be mounted vehicles, personnel carriers, and oriented standards be developed for in such a manner to preclude closing by ambulances, are designed to meet safety electrical circuits and components gravity. This requirement reduces the standards for highway use. However, associated with storage batteries and possibility of a fire in the event of a this final rule expands the scope of the charging systems. short circuit protective device limited class of equipment to include Performance-oriented requirements malfunction. The proposal would have types of equipment that would not meet have been adopted where appropriate in provided that a manually operated the requirements for highway use. the final rule to allow flexibility in controller, such as a rheostat, would not Additionally, because of the significant design and to facilitate future be acceptable as a service switch. This hazards presented by a fire in an development of new and improved provision has not been included in the underground mine, additional technology. Instead of simply applying final rule because it is redundant and safeguards for electrical systems on existing requirements to this equipment, adds nothing of substance to the equipment employing storage batteries as suggested by some commenters, paragraph. Manually operated and integral charging systems are many of the requirements of this section controllers are not typically used on warranted, given the fact that a number have been derived from existing MSHA diesel-powered equipment, and would of electrical accidents have been electrical safety standards in part 75 but be prohibited in any case by the attributed to faults in these systems. The have been tailored to apply to diesel- language in the final rule. analysis of the Ontario fire accident data powered equipment. Under the final rule circuit- revealed that 43 percent of the fires It should be noted that MSHA does interrupting devices must be designed were attributable to electrical system not consider the continuous on-board not to automatically reset after being faults. Almost half of these were related recharging of the battery on this actuated. If the circuit has been to the engine starting and charging equipment, which typically power interrupted it is most likely due to some systems. Changes in machine design to auxiliary features such as headlights, to fault in the system, and an automatic comply with the requirements in this be the type of battery-charging reset would defeat the purpose behind section are necessary to enhance safety. contemplated by existing § 75.340. the device. These devices must also be For these reasons, the final rule retains Paragraph (a) addresses overload and operational within their electrical rating these special provisions. short circuit protection of electric without damage, because otherwise they The requirements included under this circuits and components and, like the could self-destruct. Magnetic circuit- section of the final rule apply only to proposal, requires that such protection interrupting devices are required to be those electrical circuits and components be provided in accordance with existing mounted in a manner that prevents associated with, or connected to, §§ 75.518 and 75.518–1. The references gravity from closing the contacts to electrical systems utilizing storage to the existing sections have been prevent a premature or undesirable batteries and integral charging systems. retained in the final rule in response to activation of electric circuits. The It should be noted, as indicated in the commenters’ suggestions that such requirements of this paragraph ensure rule itself, that these requirements do references would minimize confusion proper design and installation of circuit- not apply to equipment that falls within over what the standard requires. interrupting devices. Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55471

The proposed rule would have conductor is not of sufficient size to not been adopted in the final rule. The included the additional requirement have adequate current carrying capacity reference to existing § 75.515 in the that circuit-interrupting devices and if it is smaller than provided for in the proposal has also not been adopted in other controls be designed so that they National Electric Code of 1968. the final rule, because it simply restates could be operated without opening any Existing §§ 75.513 and 75.513–1 were requirements already included in the compartment in which they were developed for electrical equipment used final rule. enclosed. This proposed provision has in outby locations, but they are also Paragraph (i) requires electrical not been adopted in the final rule, in suitable for application to all connections and splices to be response to commenters who advocated nonpermissible diesel- powered electrically and mechanically efficient, performance-oriented requirements. The equipment. Greater flexibility is in addition to having adequate proposal would also have required that provided for electric conductors for insulating properties. Insulating circuit-interrupting devices meet the starting motors, which are not required material would be required in requirements of existing § 75.520, which to meet the size and carrying capacity applications where space is limited and simply requires that all electric requirements under § 75.513–1, but where the possibility exists of arcs equipment be provided with switches or must only comply with the performance striking metal walls or parts. These other controls that are safely designed, requirements of § 75.513. This is precautions minimize fire hazards from constructed, and installed. This because the conductor size requirements improper or loose connections and reference adds little or nothing of in the 1968 National Electric Code are splices as well as insufficient electrical substance to the requirements of this determined based on the motor running clearances, which could cause a fire due paragraph, and has not been adopted in at maximum load, with no allowance for to conductor overheating or electrical the final rule. the type of duty. The conductor sizes arcing. In response to comments, Paragraph (e) adopts the proposed specified in the Code would therefore specific references to bolted connectors requirement that each motor and not be appropriate for starting motors, and to existing § 75.514 have been charging generator be protected from which typically run for only a very short deleted and replaced with more overload by an automatic overcurrent period of time. performance-oriented requirements. device. This requirement is necessary to Several commenters objected to the Paragraph (j) of the final rule, like the ensure proper deenergization of circuits requirement in the proposed rule that proposal, requires storage batteries to be and equipment in the event of conductors for equipment or accessories secured in place to prevent undue overcurrent conditions such as arcing added to a vehicle’s electrical system movement and protected from external and motor overheating, and, when after manufacture not be smaller than damage. Batteries not protected from complied with, will minimize resulting No. 14 AWG in size, stating that some damage by their location on the fire hazards. The final rule also adopts components were not readily available equipment are required to be housed in the proposed provision that one device with wire sizes compatible with this a battery box. will be acceptable when two motors of requirement. In response to this Paragraphs (k) through (o) of the final the same rating operate simultaneously comment and in light of the rule set forth requirements for battery and perform virtually the same duty. requirements that have been adopted in box construction, and are adopted from The requirements of paragraph (f), the final rule, which will provide the proposal with slight revision. These like the proposal, address conductor adequate protection, the proposed size requirements provide for a substantially size and capacity. Proper selection of restriction on certain conductors is not constructed battery enclosure and circuit conductors of adequate size and adopted in the final rule. address battery insulation, ventilation, current carrying capacity and with Since damaged or defective and chemical reaction from electrolyte. insulation compatible with the circuit conductors or components may present A number of commenters suggested that voltage depends on the environmental potential fire hazards, paragraphs (g) more performance-oriented conditions under which the conductors and (h) address the protection of electric requirements be adopted for battery box will be used. Conductor size and circuits and components. Paragraph (g), construction. However, the proposed capacity are also important in like the proposal, requires all wiring to design specifications have been retained minimizing overload and short circuit have adequate mechanical protection to in the final rule because they set forth conditions which could cause a fire. prevent damage to the cable that might the minimum construction requirements The final rule adopts the proposed result in short circuits. Paragraph (h) needed to protect a battery from external requirements that each ungrounded adopts the proposed requirement that damage. One commenter related an conductor have insulation compatible sharp edges and corners be removed at incident where a battery case had with the impressed voltage, and that all points where there is a possibility for deteriorated, resulting in arcing and insulation materials be resistant to damaging wires, cables, or conduits by sparking between the battery terminal deterioration from engine heat and oil. cutting or abrasion. The insulation of and the frame of the machine. Other The final rule, like the proposal, also the cables within a battery box is also reports of fires from the Ontario fire requires that electric conductors meet required to be protected against accident data indicate that a number of the requirements of existing §§ 75.513 abrasion. These paragraphs ensure that fires had been caused by batteries that and 75.513–1, except for electrical circuits are physically protected and were not secured in place or adequately conductors for starting motors, which secured from movement or protected from external damage. The must only comply with the displacement caused by vibration, as minimum design and construction performance-oriented requirements of well as from cutting or abrasion. The requirements for battery boxes in the § 75.513. Existing § 75.513 provides that proposed rule would have included the final rule are necessary to reduce these all electric conductors shall be sufficient additional requirements that wiring types of hazards. in size and have adequate current have adequate electrical protection to Paragraph (k) provides that the battery carrying capacity and be of such prevent cable damage, and that wiring box, including the cover, must be construction that a rise in temperature be installed in accordance with existing constructed of steel with a minimum resulting from normal operation will not § 75.515, as applicable. The reference to thickness of 1⁄8 inch, or of a material damage the insulating material. Existing electrical protection in the proposal was other than steel that provides equivalent § 75.513–1 provides that an electric determined to be redundant, and has strength. One commenter specifically 55472 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations cited the proposed 3⁄16-inch thickness where permissible electric equipment operated there for an indefinite period requirement as an example of an was required or in the primary of time. unnecessary design requirement. This escapeway. Stationary unattended In considering these comments, requirement has been changed to 1⁄8- equipment located in other areas of the MSHA reviewed data to determine the inch minimum thickness to conform to mine would have been required to have types of equipment that would be existing part 7 requirements for battery a diesel power package approved under affected by the proposed requirements boxes containing batteries no greater subpart F or G of part 7. Additional for stationary unattended equipment. than 1,000 pounds. Thinner battery box safety features were proposed for this This review revealed that there were cross sections would not provide equipment, including fuel system approximately 200 pieces of equipment adequate protection for the battery and requirements, limitations on storage of that were currently being operated could result in a fire or explosion. the equipment fuel supply, and a either as stationary unattended Paragraph (l) provides that battery-box methane monitor that would shut down equipment or as portable attended covers must be lined with a flame- the engine in the presence of 1.0 percent equipment. Equipment such as air resistant insulating material concentration of methane. compressors, generators, mine sealant permanently attached to the underside A number of commenters were machines, hydraulic power units, rock of the cover, unless equivalent concerned that the proposed rule dealt dusters, water spray units, and welders protection is provided. Battery-box with stationary unattended diesel- fell into this category. Water spray units covers must also be provided with a powered equipment differently than are used to wash mining equipment; means for securing them in a closed existing standards addressed mine sealant machines apply sealants to 1 position. At least ⁄2-inch of air space unattended electrical equipment, and stoppings or mine surfaces; hydraulic must be provided between the imposed unnecessary restrictions. These power units are used to operate certain underside of the cover and the top of the commenters stated that it was excessive special purpose tools; rock dusters are battery, including terminals. Paragraph to require approved power packages on used to apply rock dust to mine (m) requires battery boxes to be equipment when the equipment is surfaces; and diesel-powered welders provided with ventilation openings to already housed in a noncombustible are used where electric power is not prevent the accumulation of flammable enclosure, vented to a return air course, readily available. An operator must be or toxic gases or vapors within the protected by an automatic fire present to perform the main function of battery box. The size and locations of suppression system, and equipped with all of these types of equipment, i.e., openings for ventilation must prevent a device that shuts down the equipment welding, rock dusting, etc. MSHA’s review also revealed that direct access to battery terminals. and sounds an alarm at an attended diesel-powered generators are typically Paragraph (n) requires the battery to be surface location. Several commenters used to provide electrical power to insulated from the battery-box walls and stated that unattended electric supported on insulating materials. move equipment with electric motors equipment, which they believed Insulating materials that may be subject from place to place in the mine. An presented similar ignition sources, was to chemical reaction with electrolyte equipment operator is also in not required to have methane monitors, must be treated to resist such action. attendance when this type of equipment and that such monitors were not Finally, paragraph (o) requires drainage is being used. Finally, MSHA’s review necessary, given the outby locations holes in the bottom of each battery box. also indicated that diesel-powered Stationary unattended diesel-powered where stationary nonpermissible compressors are used in a manner equipment. The Diesel Advisory equipment would operate. similar to hydraulic power units, with Committee recommended that Other commenters favored a complete an operator in attendance, to provide a stationary unattended diesel-powered prohibition of unattended diesel source of compressed air to operate equipment be prohibited where equipment in underground coal mines, tools such as pneumatic hammers and permissible electric equipment is stating that diesel equipment presented drills. required, and that stationary unattended too great a fire hazard to allow it to be From this review, MSHA has equipment used elsewhere in the mine operated unattended, even with the concluded that diesel-powered be provided with the fire prevention imposition of rigid safety requirements. equipment is not commonly operated features required for electrical One commenter referred to the 1984 unattended in a permanent location, but installations and mobile diesel-powered Wilberg Mine disaster, where a fire instead is operated with a person in equipment. The Committee started by an unattended electrical close proximity. The final rule includes recommended that stationary compressor killed 27 miners. In the a definition of what constitutes attended unattended equipment be equipped alternative, these commenters diesel-powered equipment in § 75.1908, with specific machine features, such as recommended that extensive additional which provides that the equipment surface temperature controls, an requirements be imposed on stationary must either be operated by a miner, or automatically and manually actuated unattended equipment, including a located within 500 feet of a job site fire suppression system, an engine requirement that the equipment be where a miner is located. Essentially all shutdown device, and a means to shut permissible, and that the enclosure of the diesel-powered equipment down the engine from the surface. The housing the equipment meet a 2-hour currently operated in underground coal Committee also recommended that fire resistance test. mines is ‘‘attended’’ under the final stationary unattended equipment be One commenter stated that there rule’s definition. In light of this housed in a fireproof enclosure should be clarification of what determination, and also in light of the ventilated to a return air course. constitutes ‘‘stationary’’ versus serious concerns expressed by some Section 75.1910 of the proposed rule ‘‘portable’’ equipment. The commenter commenters about the possible fire incorporated the recommendations of pointed out that some types of hazards presented by unattended diesel- the Advisory Committee for stationary equipment, such as compressors, are powered equipment operating unattended equipment. Specifically, portable because they are capable of underground, § 75.1916(d) of the final proposed § 75.1910 would have being transported by rail or otherwise rule prohibits the operation of prohibited stationary unattended diesel- carried, but that the equipment can also unattended diesel-powered equipment powered equipment in areas of the mine be placed in a remote location and in underground coal mines. Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55473

Consequently, the proposed address fire hazards created by other fire with leaked or spilled diesel fuel or requirements addressing the operation machine system malfunctions such as hydraulic fluid. Fixed fire suppression of stationary unattended diesel-powered brake components overheating, severing systems also offer two advantages over equipment are not adopted in the final of a fuel line or hydraulic line, and portable fire extinguishers: fast attack rule. electric component short-circuiting. The and application of the suppressant to As a result of the final rule’s Committee made a number of difficult-to-reach areas on and under prohibition against operation of recommendations regarding the diesel machines where fires may occur. unattended diesel-powered equipment application of fire suppression systems An automatic fire suppression system in underground coal mines, conforming to specific types of equipment such as uses a supplemental detection device to amendments are necessary to several nonpermissible equipment, limited sense an early warning of a fire. The fire existing standards, primarily to delete class equipment, and stationary detection system, which is generally unnecessary references to unattended equipment. The proposed rule included actuated by either smoke or heat, diesel-powered equipment. Existing design, installation and maintenance automatically sends a signal to the § 75.360 lists the locations where requirements for fire suppression system for the discharge of suppressant preshift examiners must examine for systems on diesel-powered equipment agent. Manual fire suppression systems hazardous conditions, test for methane and fuel transportation units. These require a person to actuate the fire and oxygen deficiency, and determine if requirements would have been suppression system by either pushing a the air is moving in the proper applicable to approved equipment, button or throwing a switch to discharge direction. The final rule deletes from limited class equipment, and fuel the fire suppressant agent to the hazard. these locations the reference in transportation units, both self-propelled Both automatic and manual fire § 75.360(b)(7) to ‘‘where unattended and towed. suppression systems utilize a network of diesel equipment is to operate.’’ Commenters to the proposed rule piping and nozzles to allow suppressant Additionally, existing § 75.380(f)(3)(i) generally accepted the need for fire agent to be released and distributed included a prohibition against operation suppression systems on diesel-powered directly at a predetermined fire hazard. in the primary escapeway of unattended equipment operated in underground Under the final rule, fire suppression diesel equipment without an automatic coal mines. However, comments varied systems are required to provide fire fire suppression system. This reference on what the requirements for fire suppression and, if an automatic system is deleted by the final rule. suppression systems should be. Some is installed, fire detection for the engine, Finally, existing § 75.344 deals with commenters recommended that only transmission, hydraulic pumps and the use of air compressors underground, manufacturer’s requirements for design, tanks, fuel tanks, exposed brake units, including unattended diesel installation and maintenance be used. air compressors, battery areas and other compressors. The final ventilation rule Other commenters suggested a more areas as necessary. The final rule also that was published in October 1989 detailed approach and recommended requires that automatic fire suppression made clear that the application of the that the final rule outline specific systems include audible and visual requirements of § 75.344 to diesel requirements for fire suppression alarms to warn of fires or system faults compressors would be removed when systems. and automatic engine shutdown in the the final rule for diesel equipment was Fire suppression systems are event of a fire. In addition, the final rule promulgated. [54 FR 40950]. The necessary on diesel-powered requires all fire suppression systems to reference to diesel compressors in equipment, including fuel be tested and maintained in accordance paragraph (d) of § 75.344 is therefore transportation units, because of the with manufacturer’s recommendations. removed by the final rule. numerous fuel sources, including diesel Finally, the rule establishes certain fuel, hydraulic fluid, and combustible recordkeeping requirements for faulty Section 75.1911—Fire Suppression material, and several potential ignition fire suppression systems that are found Systems For Diesel-Powered Equipment sources, such as hot exhaust during inspection and testing. And Fuel Transportation Units components, dragging brakes, and Paragraph (a) of this section of the Section 75.1911 of the final rule electrical wiring on this type of final rule provides that the fire establishes requirements for the design, equipment. Accident reports describe suppression system required by installation, and maintenance of fire machine fires caused by hot exhaust §§ 75.1907 and 75.1909 must be a suppression systems used on diesel- components, dragging brakes and multipurpose dry chemical type (ABC) powered equipment and fuel shorted electrical components igniting fire suppression system listed or transportation units in underground diesel fuel, hydraulic fluid, brake fluid, approved by a nationally recognized coal mines. Under the final rule, both lube oil, and other combustible independent testing laboratory and permissible and nonpermissible diesel- materials, such as electrical insulating appropriate for installation on diesel- powered equipment is required to be material. powered equipment and fuel equipped with fire suppression systems. Fire suppression systems are designed transportation units. The requirement for installation of fire to extinguish fires quickly, in their The proposed rule would have suppression systems on permissible incipient stage, and to reach all required an automatic multipurpose dry diesel-powered equipment is contained locations where a fire may occur. This powder type fire suppression system in the final rule at § 75.1907(b)(2),and is important for diesel-powered suitable for its intended application and for nonpermissible equipment at equipment because a fire must be listed or approved by a nationally § 75.1909 (h), (i), and (j)(3). extinguished quickly before fuel sources recognized independent testing Nonpermissible diesel-powered can further propagate a fire. For laboratory on diesel-powered equipment equipment typically includes scoops, example, if a fire is not extinguished at and portable diesel-powered equipment personnel carriers, and pickup trucks. an early stage, leaking diesel fuel or and fuel transportation units. The The Diesel Advisory Committee hydraulic fluid can fuel a fire and result proposal would have further established recommended that fire suppression in an increase in the intensity and size fire suppression requirements for systems be required on certain types of of the fire. Also, promptly extinguishing approved equipment, limited class diesel-powered equipment, in addition a fire prevents reignition through the equipment, and fuel transportation to surface temperature controls, to contact of hot surfaces created by the units, both self-propelled and towed. 55474 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations

Commenters expressed support for type of fire suppression system required their experience that a well-maintained automatic fire suppression systems on for installation on diesel-powered manually-actuated fire suppression portable or unattended diesel-powered equipment is specified in system is appropriate if the equipment equipment. A number of commenters, § 75.1907(b)(2) for permissible is attended. These commenters stated however, stated that automatic fire equipment, and § 75.1909 (h), (i), and that manually-actuated fire suppression suppression systems are not needed on (j)(3) for nonpermissible equipment. systems are adequate in conjunction self-propelled diesel-powered The Ontario fire accident data with additional protective features for equipment, because this type of indicated that heavy-duty diesel- fuel, hydraulic, and electrical systems, equipment is attended by an equipment powered equipment of the type defined to provide fire protection on outby operator. These commenters suggested in the final rule at § 75.1908(a) presents diesel-powered equipment. In addition that mine operators should have the a much greater fire hazard than light- to a manual fire suppression system, option of providing either manual or duty equipment defined under the final protective features for fuel, hydraulic, automatic fire suppression systems on rule at § 75.1908(b). The data showed and electrical systems are required on self-propelled diesel-powered that heavy-duty diesel-powered both heavy-duty and light-duty equipment, stating that the equipment equipment, which includes equipment nonpermissible equipment under operator is in the best position to detect that cuts or moves rock or coal, §§ 75.1909 and 75.1910 of the final rule. incipient fires on the machine and is equipment that performs drilling or Automatic fire suppression systems able to actuate a manual fire bolting functions, and fuel are necessary on equipment that poses suppression system more easily than an transportation units, had 247 fires (85 a higher fire risk. This includes heavy- automatic system. Some commenters percent) of the total number of fires. duty equipment, which presents an stated that automatic fire suppression Heavy-duty equipment frequently works increased fire hazard as discussed systems are not necessary on mobile under load and can develop large areas above. It also includes equipment for diesel-powered equipment because this of hot engine surfaces. This equipment which the operator is not immediately type of equipment will already be is prone to mechanical breakdown, present at the controls of the machine at required to have fire protection and especially hydraulic hose and electrical all times it is operated, such as shutdown features. Commenters also cable failure, creating a serious risk that compressors. Good fire fighting practice stated that automatic systems can the equipment will develop both an requires that the fire be attacked as early require extra maintenance and are ignition source and provide a source of as possible. Further, several reports susceptible to vibration, which can fuel for a fire. indicate that the rapid growth of fire cause them to discharge unexpectedly. By contrast, light-duty diesel-powered prevented the equipment operator from In addition, commenters stated that equipment, which under the final rule actuating the manual fire suppression automatic fire suppression systems includes supply vehicles, maintenance system. Automatic systems provide a should not be required on vehicles with vehicles, personnel carriers, and other fast response without operator surface temperature controls, such as equipment not used to move rock or intervention. Compressors and other permissible vehicles, because coal, accounted for 43 (15 percent) of non-self-propelled equipment compatible permissible systems were the total number of fires. Light-duty frequently operate for long periods of not available at the time of the proposal. equipment is not used in the actual time under high load. This results in Other commenters supported the mining process and is generally not sustained high engine surface proposal for automatic fire suppression worked very hard and typically used temperatures, which can provide an systems on all types of diesel-powered only intermittently during a shift. While ignition source for a fire and increase equipment. In testimony before the over a third of the fires on heavy-duty the likelihood of a a mechanical failure Diesel Advisory Committee, equipment equipment were started by hot engine providing a fuel source for a fire. Also, manufacturers and mine operators surfaces, fewer than 10 percent of the the individual operating the compressor endorsed the use of automatic fire fires on light-duty equipment were may be some distance from the suppression systems on several types of started by hot engine surfaces. Fires machine, and would not be able to diesel-powered equipment and gave related to the electrical system promptly actuate the fire suppression examples of current applications. Other accounted for 60 percent of the light- system. To address these hazards, the commenters to the proposal observed duty equipment fires. Electrical fires final rule adopts the proposed that it might be difficult for an tend to smolder and provide more time requirement for automatic fire equipment operator to actuate a manual for action to be taken to extinguish the suppression systems for heavy-duty and system depending on the type and size fires than do diesel fires. non-self-propelled equipment. of a fire. These commenters expressed Although light-duty equipment still One commenter to the proposal stated concern that an equipment operator poses a fire risk, this risk can be that the requirement in paragraph (a) could be overcome by the effects of a adequately addressed by fire that the ‘‘system be suitable for the fire or explosion and not be able to suppression systems which take into intended application’’ was ambiguous manually extinguish the fire. Some account the manner in which light-duty and could be subject to different commenters also expressed concern that equipment is used and the types of fires interpretations. This commenter stated a manually-actuated system would be that typically occur on it. The final rule, that the term ‘‘suitable’’ could refer to a ineffective for a fire that started after the therefore, does not adopt the proposal system that is suitable for a particular equipment had been shut off and the that automatic fire suppression systems type of fire (class B flammable or equipment operator had left the area. be installed on all diesel machines. combustible liquid fire) or it could mean Paragraph (a) of this section of the A manually-actuated fire suppression that the system has a sufficient capacity final rule does not adopt the proposed system provides adequate protection on to extinguish a fire on a particular piece requirement for installation of an light-duty self-propelled equipment. of equipment. Other commenters automatic fire suppression system on all This type of equipment is attended by recommended that the final rule specify mobile diesel-powered equipment. its operator at all times that it is the capacity of the fire suppression Instead, the final rule establishes operating as required by § 75.1916(d) of system. requirements for both manual and the final rule. As discussed by several The final rule responds to automatic fire suppression systems. The commenters to the proposal, it has been commenters’ concerns by requiring that Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55475 fire suppression systems be three classes (ABC) of fires on diesel- damaged from collision or nozzles multipurpose dry chemical type (ABC) powered equipment. A class A fire positioned at a specific predetermined fire suppression systems listed or refers to fires of combustible solid location can be redirected away from a approved by a nationally recognized materials such as paper, rubber, textiles, fire hazard. independent testing laboratory, and and cloth, and would typically involve Paragraph (a)(4), like the proposal, appropriate for installation on diesel- such items as tires, hosing or seats on requires that fire suppression nozzles powered equipment. The final rule does diesel-powered equipment. A class B also be protected against the entrance of not adopt the language ‘‘suitable for the fire on diesel-powered equipment foreign materials. No specific comments intended application.’’ would involve diesel fuel. Class C fires were received on this aspect of the The capacity and suitability of fire involve electrical components, and proposal. The openings in the nozzles suppression systems for protecting could include such components as used on multipurpose dry chemical fire against specific fire hazards are lights, pumps, and components of the suppression systems can be as small as specified as part of the listing or control panel on diesel-powered 1⁄8 of an inch. If material such as mud, approval by the nationally recognized equipment. A multipurpose dry coal dust, or rock dust enters the nozzle, independent testing laboratory. The chemical type agent is specifically it can prevent the chemical agent from nationally recognized independent designed to extinguish ABC class fires. discharging entirely, or alter the pattern testing laboratory system listing or Paragraph (a)(1) of the final rule, like and coverage of fire suppressant. approval does not necessarily designate the proposal, requires that the fire Paragraph (b) of the final rule requires the system for a specific type of suppression system be installed in fire suppression and, if the system is equipment, such as fuel transportation accordance with the manufacturer’s automatic, fire detection for certain units or even diesel-powered specifications and the limitations of the coverage areas on diesel-powered equipment. Instead, the listing or nationally recognized independent equipment. Under the final rule, the approval uses a more general testing laboratory listing or approval. coverage areas include the engine description such as mobile mining Commenters generally expressed (including the starter), transmission, equipment or vehicle protection. Listing support for this aspect of the proposal. hydraulic pumps and tanks, fuel tanks, or approval by a nationally recognized This requirement ensures that the exposed brake units, air compressors independent testing laboratory ensures system is installed within the limits and battery areas on diesel-powered that a fire suppression system is defined by the listing or approval equipment and electric panels or properly designed for a particular type organization and as specified by the fire controls used on fuel transportation of fire protection hazard by putting the suppression system manufacturer. Since units. This requirement ensures that fire system through a series of specific the system already is performance- detection and fire suppression are performance tests. The system must also tested to a specific standard and in provided with coverage for key areas of meet rigid design requirements in order certain configurations, it must be diesel-powered equipment and fuel to gain approval or listing. installed within these parameters to be transportation units. Fire suppression systems should be effective. Although the listing or approval installed by a qualified individual Paragraph (a)(2) adopts the generally describes areas on equipment following the installation and requirement from the proposal that the that pose a fire hazard, it does not maintenance instructions in the system fire suppression system be installed in specifically identify which hazards manufacturer’s installation manual. The a protected location or guarded to must be covered by fire suppression. sizing of a fire suppression system is minimize physical damage from routine The final rule’s requirement for specific dependent on the number of nozzles vehicle operations. No specific fire suppression coverage for certain needed to adequately cover all of the comments were received on this aspect areas on diesel-powered equipment is fire hazard areas that have been of the proposal. In order for fire supported by the Ontario fire data. The identified. The number of dry chemical suppression systems to work properly, data showed that engine fires accounted canisters required will be proportional they must not be subjected to damage for 99 (34 percent) of the total number to the number of hazard areas that must from the mining environment. Damage of fires on diesel-powered equipment. be covered by the nozzles. This to any part of the fire suppression Included in engine fires were 10 information can be obtained from the system can result in a malfunction of compressor fires, 27 hydraulic system installation manual that is part of the the entire system and in the system not fires, 11 transmission fires, and 7 fuel listing or approval documentation. responding to a fire. For example, a rock tank fires. The Ontario fire data also Other installation considerations, such fall can pinch a hose or crush a sensor indicate 32 battery fires and 55 brake as proper location and guarding of and create faults that can disable either fires. nozzles and other system components to the entire system or a portion of the The scope of paragraph (b) is prevent damage, are addressed in the system that covers a certain area of the expanded to include the starting system’s installation manual. In machine. mechanism on diesel-powered addition to the installation requirements Paragraph (a)(3), like the proposal, equipment. This responds to in the manual, follow-up maintenance requires that the suppressant agent commenters’ recommendations that and inspection procedures are provided. distribution tubing or piping be secured foreign fire data be evaluated to Also modified in this section from the and protected against damage, including establish criteria for fire protection on proposal is the term ‘‘chemical’’ pinching, crimping, stretching, abrasion, diesel-powered equipment. The Ontario replacing the term ‘‘powder’’ and the and corrosion, and that the discharge fire accident data indicate that starters, addition of the letter references ‘‘ABC’’ nozzles be positioned and aimed for starter solenoids, and the wiring for the three classes of fire. These maximum fire suppression effectiveness associated with these components modifications are made in response to in the protected areas. No specific present a fire hazard. The data showed commenters’ requests for clarification comments were received on this aspect 21 (17 percent) of the electrical fires on and to incorporate more appropriate of the proposal. During the normal self-propelled diesel-powered terminology. operation of diesel-powered equipment equipment were caused by starter A multipurpose dry chemical type in the confined space of a coal mine, a circuits. Also, the proposal included the system is capable of suppressing the fire suppression system can become engine compartment as an area to be 55476 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations covered by the fire suppression system. engine shutdown required by paragraph equipment. For example, if onl`y one The specific reference to the starter area (d). actuator were located on the side of a in the final rule clarifies that the starter Paragraph (d) of the final rule adopts piece of equipment, the equipment area of the engine compartment be the proposed requirement that the fire operator might be unable to access the covered by the fire suppression system. suppression system provide for actuator due to the confined spaces in The proposed rule specified fire automatic engine shutdown. The final an underground coal mine, or because suppression system coverage areas for rule also provides that if the fire the fire ignited in the same location as various types of limited class suppression system is automatic, engine the actuator. The final rule requirement equipment. Because of the different fire shutdown and discharge of suppressant for two manual actuators is also hazards presented by the various types agent may be delayed for a maximum of consistent with existing § 75.1107 for of equipment listed in the proposal, 15 seconds after the fire is detected by dry chemical fire suppression systems separate provisions in proposed the system. Commenters expressed for electric equipment. paragraph (b)(1) were included. In the support for this aspect of the proposed The final rule does not include a final rule the limited class category of rule. requirement for a check valve between light-duty equipment is expanded to The engine shutdown requirement is the actuators for fire suppression include a range of equipment types, intended to prevent an engine from systems. This is part of the system beyond the types defined in the continuing to run once the system has design and is more appropriately proposal, and the requirements for been actuated, either automatically or addressed by the system manufacturer coverage areas have been combined. manually. This will prevent the engine and the listing or approving nationally Proposed paragraph (b)(2) has not from pumping diesel fuel or hydraulic recognized independent testing been adopted in the final rule to the fluid through a leaking fuel line or laboratory. extent that it would have specified hydraulic hose, fueling the fire that the Paragraph (f) adopts the proposed coverage areas around fuel fire suppression system is attempting to requirement that the fire suppression transportation units in response to extinguish. Since fire suppression system must remain operative in the commenters’ statements that fuel tanks systems are designed to suppress fires in event of engine shutdown, equipment by themselves do not constitute a fire their incipient stages, the contribution electrical system failure, or failure of hazard, and only need coverage if an of additional fuel to the fire may render any other equipment system. No associated ignition source is present. the system ineffective. The Ontario specific comments were received on this Proposed paragraph (b)(3), which would accident data included a number of aspect of the proposed rule. This have required fire suppression coverage machine fires where the engine requirement is intended to ensure that for fuel containers and electric panels or continued to feed the fire with diesel the functioning of the system is not controls used during fuel transfer fuel or hydraulic fluid, reducing the dependent on any external power operations on fuel transportation units, effectiveness of the system’s ability to source, such as an engine-driven has not been adopted because the term suppress the fire. In addition, the engine alternator, vehicle battery, or the proper ‘‘container’’ is no longer used in the shutdown feature prevents the engine operation of any other machine system. final rule. The phrase ‘‘during fuel cooling fan from dispersing the fire Paragraph (g), like the proposal, transfer operations’’ was not adopted suppressant agent before it extinguishes requires that the electrical components from the proposal to eliminate the the fire. A maximum of 15 seconds of each fire suppression system installed inference that only electric panels or delay between the time of fire detection on diesel-powered equipment used controls used during fuel transfer and actuation provides a limited period where permissible electric equipment is operations must have coverage. Under of time for the equipment operator to required be permissible or intrinsically the final rule, electrical components stop and exit the machine before the safe, and that such components be installed on fuel transportation units machine engine shuts down. maintained in permissible or must be covered by fire suppression Paragraph (e) of the final rule adopts intrinsically safe condition. This systems. However, a vehicle’s the proposed requirement that the fire provision requires that automatic fire instrument panel located in the suppression system be operated by at suppression systems be certified or operator’s compartment of the machine least two manual actuators. One approved by MSHA under part 18. would not be considered ‘‘electrical actuator must be located on each side of A number of commenters to the panels and controls.’’ Expelling fire the equipment, and if the equipment is proposal stated that intrinsically safe suppressant in the operator’s provided with an operator’s vehicle-type automatic fire suppression compartment would create other compartment, one actuator must be systems were not available. Currently, hazards for the equipment operator such located in the compartment within easy however, two fire suppression system as a cloud of fire suppressant which reach of the equipment operator. manufacturers have obtained approval could limit visibility. Several commenters expressed the under part 18 for their automatic fire Paragraph (c), like the proposal, opinion that two manual actuators were suppression systems. requires that automatic fire suppression unnecessary on small units of diesel Paragraph (h) adopts the requirement systems include audible and visual equipment, such as tractors, when the from the proposal that electrically alarms to warn of fires or system faults. second actuator would have to be operated detection and actuation No specific comments were received on installed in close proximity to the circuits be monitored and provided with this aspect of the proposed rule. This engine. Another commenter urged that status indicators showing power and requirement provides a means for actuators be separated from each other circuit continuity. If the system is not immediate notification of the equipment by a means of a check valve or other electrically operated, a means must be operator, both audibly and visually, device to allow the system to operate provided to indicate the functional when the system detects a fire on the even if there is an open line in the readiness status of the detection system. machine or a problem with the fire actuation circuit. These features notify the equipment detection device. The audible and visual Two actuators for a fire suppression operator or maintenance person of the indication of fire detection can alert the system are important to afford ample functional readiness status of both the equipment operator of the imminent opportunity to initiate the system, even detection and actuation circuit and the discharge of the chemical agent and the on small units of diesel-powered power source. No specific comments Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55477 were received on this aspect of the Under the final rule, the weekly provided by the system manufacturer or proposed rule. visual inspection is not intended to be distributor. Additionally, automatic fire Currently at least one manufacturer is an in-depth inspection. The weekly suppression systems under the final rule marketing an automatic fire suppression visual inspection is intended to be a are required to have a status monitoring system with these electrical features on quick check to determine if defects, feature to tell the equipment operator or both permissible and nonpermissible such as disconnected hose lines or maintenance personnel that a problem systems. There is also an automatic altered nozzles, are readily apparent. exists. system which is not electrically The in-depth inspection takes place as Section 75.1915(b)(3)(iv) of the final operated and employs a pressurized part of the manufacturer’s rule requires that the training and cylinder to disperse the suppressant. A recommended testing and inspection qualification program for qualified pressure gauge on the cylinder is procedure also required under the final persons working on diesel equipment considered sufficient to indicate the rule. Fire suppression system address tests and maintenance of fire condition of the system. manufacturers are most familiar with suppression systems. The qualified Paragraph (i) requires that each fire the design and operation of their person conducting maintenance on fire suppression system be tested and systems and are best able to identify the suppression systems on diesel-powered maintained in accordance with the components that need maintenance as equipment should have sufficient manufacturer’s recommended well as the type and frequency of familiarity with the elements of the fire inspection and maintenance program maintenance. Adequate maintenance is suppression system. A person ‘‘trained’’ and as required by the nationally essential because of the importance of to perform inspections and tests recognized independent testing these systems in suppressing machine required by paragraph (i) of this section laboratory listing or approval. It also fires. Maintenance and testing of the final rule is not required to be a requires fire suppression systems to be requirements for fire suppression person qualified under § 75.1915. visually inspected at least once each systems are included in the final rule in However, the final rule intends that the week by a person trained to make such addition to the requirement for a weekly person performing tests and inspections inspections. visual inspection. of fire suppression systems have The manufacturer’s inspection and sufficient knowledge to determine The proposed rule would have maintenance procedures are typically whether a fire suppression system is required each fire suppression device to spelled out in great detail in the functioning properly. MSHA anticipates be visually inspected at the same manufacturer’s manual and, depending that since fire suppression systems are interval by a person qualified to make on the operating environment, include common to both electric and diesel such inspections. The proposal also the recommended inspection intervals. equipment, the mine operator will work would have required that each fire In addition, these inspection and with either the fire suppression system suppression device be tested and maintenance procedures are evaluated manufacturer or distributor to ensure maintained in accordance with as part of the system’s approval or that personnel responsible for the applicable requirements in § 75.1100. listing by a nationally recognized maintenance of fire suppression systems Commenters to the proposal generally independent testing laboratory. are adequately trained. expressed support for required The requirement in this paragraph is Paragraphs (j) of the final rule maintenance of fire suppression systems identical to the requirement in existing establishes recordkeeping requirements installed on diesel-powered equipment. § 75.1107–16(a). However, the fire which address the inspection and Some commenters, however, suppression system requirements in maintenance requirements for fire recommended that a maintenance §§ 75.1107–3 through 75.1107–16 suppression systems set forth in program specifically designed for fire cannot be directly applied to diesel- paragraph (i). Paragraph (j) of the final suppression systems be developed at powered equipment for several reasons. rule requires that persons performing each mine. One commenter stated that Any modification of these existing inspections and tests of fire suppression a visual inspection of fire suppression requirements by inserting the term systems record results of tests and systems on diesel-powered equipment ‘‘diesel-powered’’ in the regulatory inspections only when a fire would not be adequate and language would result in an extremely suppression system does not meet the recommended that fire suppression confusing regulation. Also, the fire installation or maintenance systems be maintained in accordance hazards presented by diesel-powered requirements of this section. Under with the manufacturer’s guidelines by equipment are different from those on these circumstances, the person either outside entities qualified by the electric-powered equipment, due to the performing the inspection or test is equipment manufacturer or through a close proximity of large quantities of required to record the equipment on program to qualify individuals at the hydraulic oils and fuels to the heated which the fire suppression system did mine. Another commenter to the diesel engine exhaust. The single not meet the installation or maintenance proposal recommended that the modification made to this paragraph requirements of this section, the defect manufacturer’s inspection and was replacing the term ‘‘device’’ with found, and the corrective action taken. maintenance program be referenced in the term ‘‘system’’. This was done The final rule also requires that these lieu of the requirements in § 75.1100. because MSHA intends that the whole records be kept either manually or One commenter stated that automatic system be inspected and not just electronically in a secured manner that fire suppression systems are more individual components of the system. is not susceptible to alteration. difficult to maintain than manual Although automatic systems have Paragraph (j)(3) requires that records be systems, but that both types of systems additional components that must be maintained at a surface location at the should be inspected monthly and inspected and maintained, properly mine for one year and made available maintained semi-annually as a trained maintenance personnel should for inspection by an authorized minimum. Another commenter have little difficulty satisfying these representative of the Secretary and expressed concern that certain critical requirements. It is anticipated that the miners’ representatives. internal components of a fire training of the personnel assigned to The proposal would have required suppression system could be checked perform the testing and maintenance of that a record be kept of all inspections simply by a visual inspection. fire suppression systems will be and tests of fire suppression systems 55478 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations and maintained at an appropriate an appropriate location near each fire systems required by this paragraph will location for each fire suppression suppression system. Instead, paragraph be part of the § 75.1101–23 instruction. device. One commenter to the proposal (k) of the final rule establishes the Paragraph (l) of this section of the recommended that, in order to provide requirement recommended by a final rule provides that, for purposes of adequate maintenance of fire commenter that records of inspections existing § 75.380(f), a fire suppression suppression systems, interested parties and tests be maintained at a surface system installed on diesel-powered be allowed to view the results of visual location at the mine. Storing records on equipment and meeting the inspections recorded in approved books. the surface at the mine makes them requirements of § 75.1911 is equivalent Another commenter recommended that more accessible to interested parties. to a fire suppression system meeting the records of inspections be maintained on Also in response to commenters, the requirements of §§ 75.1107–3 through the surface by the operator so that they final rule provides access to not only 75.1107–16. would be available for MSHA miners’ representatives but to Section 75.380 addresses verification. This commenter stated that authorized representatives of the requirements for escapeways in maintaining separate records for Secretary. This provision ensures that bituminous and lignite mines. Section inspections of fire suppression systems test and inspections of fire suppression 75.380(f) specifies the equipment that is an unnecessary burden for the mine systems are being made and, when a can be used in the primary escapeway operator. This commenter stated that defect is found, that corrective action is and the type of fire suppression system records kept on computers, as pre-shift taken. required to be installed on this examinations and by normal Records for inspection of diesel- equipment. Section 75.380(f)(4) requires maintenance inspections, would be powered equipment are also required that each piece of mobile equipment adequate for documenting the under § 75.1914(f)(2) of the final rule. operated in primary escapeways, except inspections conducted on fire However, the recordkeeping for continuous miners and as provided suppression systems. requirement under paragraph (j) is not in paragraphs (f)(5), (f)(6) and (f)(7) of Office of Management and Budget intended to be duplicated. While the section, be equipped with a fire suppression system installed according guidance comments directed MSHA to § 75.1914(f)(2) applies to diesel-powered to §§ 75.1107–3 through 75.1107–16 that reexamine the recordkeeping equipment, some diesel fuel is: (1) manually operated and attended requirements in the proposal and transportation units may be portable continuously by a person trained in the recommended that the final rule require trailers with only electrical components system’s function and use; or (2) a paperwork that was the least and therefore would need to be covered multipurpose dry chemical type capable burdensome necessary. MSHA has done under the recordkeeping requirement of both automatic and manual so, and the final rule does not adopt the under paragraph (j) of this section. The activation. The requirement in proposal that all fire suppression system only records required for fire test and maintenance results be § 75.380(f)(4) for installation of a fire suppression systems under this section recorded. In response to commenters suppression system that meets the of the final rule are for tests and and consistent with other provisions of requirements of §§ 75.1107–3 through maintenance required under paragraph the final rule, paragraph (j) requires that 75.1107–16 on equipment operating in (i). records of inspections and tests be made the primary escapeway presents a only when a fire suppression system Paragraph (k) adopts the proposed potential conflict with the requirement does not meet the installation or requirement that all miners normally for installation of a fire suppression maintenance requirements of this assigned in the active workings of the system on diesel-powered equipment in section. This requirement is important mine be instructed about the hazards § 75.1911. because if a fire suppression system inherent to the operation of fire As noted earlier, several commenters does not meet the installation or suppression systems, and where to the proposed rule believed that the maintenance requirements of this appropriate, the safeguards available for requirements for fire suppression section, the defect could be sufficiently each system. This requirement is systems in §§ 75.1107–3 through serious to cause the system to fail in the intended to ensure that all miners 75.1107–16 should be made applicable event of a fire. This requirement is working in areas where fire suppression to diesel-powered equipment. However, intended to ensure that records are systems operate are instructed in any the requirements in §§ 75.1107–3 maintained and made available to inherent hazards and necessary through 75.1107–16 make specific interested parties when a defect is precautions associated with the reference to electric equipment and found, and that the appropriate level of operation of these systems. The final components and are not practical for mine management is made aware of rule modifies the proposal in that the diesel-powered equipment. Any defects requiring corrective action. term ‘‘device’’ has been replaced by the modification of these existing The final rule does not specify a term ‘‘system’’ to clarify that this requirements by inserting the term particular way of recording the test and requirement applies to the entire fire ‘‘diesel-powered’’ in the regulatory maintenance data, only that the records suppression system, not merely a language would result in an extremely be located at the surface of the mine. component of it. confusing regulation. The records of the inspections and tests One commenter to the proposal After a review of the issue, MSHA has must be made in a secure media not agreed with the requirement that miners determined that fire suppression susceptible to alteration. A detailed be trained in the hazards and safeguards systems installed on diesel-powered discussion of the subject of acceptable of fire suppression systems, but equipment meeting the requirements of record books and electronic records can recommended that such training be § 75.1911 afford at least equivalent be found under the heading incorporated in the annual refresher protection to fire suppression systems ‘‘Recordkeeping Requirements’’ in the training required under existing meeting the requirements of §§ 75.1107– General Discussion section of this § 75.1101–23 for the program of 3 through 75.1107–16. Many of the preamble. instruction, location and use of fire requirements contained in §§ 75.1107–3 The final rule does not adopt the fighting equipment. Under the final through 75.1107–16 are similar to those requirement from the proposed rule that rule, it is anticipated that the instruction in § 75.1911. Both sections include records of inspections be maintained at on the hazards of fire suppression requirements for: listed or approved fire Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55479 suppression systems; the capacity and diesel fuel does present a fire hazard commenter stated that since diesel fuel size of fire suppression system when it is spilled from a tank or leaked is a Class II combustible liquid, a diesel hardware; a system design that will from a hose and comes into contact with fuel storage station used and moved withstand the normal rigors of mining; an ignition source. Spills and leaks of with a working section should be compatibility of the extinguishing agent diesel fuel at permanent underground treated similar to a lubricating oil or with the mine atmosphere; the system’s storage facilities can occur when grease storage station. This commenter ability to operate independently of an machinery is being refueled, when expressed the view that requirements equipment power supply; sensor diesel fuel is being placed in or taken for limiting the quantity of diesel fuel in operability status indication; and the out of storage tanks, or when tanks are temporary storage and requiring inclusion of manual actuators. damaged or not properly maintained. portable fire extinguisher protection Consequently, the final rule makes clear Potential ignition sources at permanent would be adequate safeguards. Another that fire suppression systems meeting underground storage facilities include a commenter expressed concern with the the requirements of § 75.1911 will running diesel vehicle with hot surfaces ability of a dry compound to suppress satisfy the requirements of or hot brake components, a fire over a long enough period of time § 75.380(f)(4). malfunctioning electric valves, or to prevent re-ignition. This commenter pumps used to dispense diesel fuel. stated that high volumes of ventilating Section 75.1912 Fire Suppression Fire suppression systems are designed air in a mine can blow dry compound Systems for Permanent Underground to extinguish fires quickly, in their away from the area it is attempting to Diesel Fuel Storage Facilities incipient stage, and to reach all protect before it can cool down a hot This section of the final rule locations where a fire may occur. This surface created by a fire. establishes requirements for the design, is important at permanent underground MSHA agrees with the commenter installation and maintenance of fire diesel fuel storage facilities because a who stated that diesel fuel stored on and suppression systems at permanent fire must be extinguished quickly before moved with a section should be treated underground diesel fuel storage fuel can further propagate a fire. For as a Class II combustible liquid. The facilities. Under the final rule, a example, if a fire is not extinguished at final rule addresses this comment by permanent underground diesel fuel an early stage, leaking diesel fuel can establishing the allowance for one storage facility is defined as a facility fuel a fire and result in an increase of temporary underground diesel fuel designed and constructed to remain at the intensity and size of the fire. storage area for the short-term storage one location for the storage or Fixed fire suppression systems also and dispensing of diesel fuel on each dispensing of diesel fuel, which does offer two advantages over portable fire working section, which can move as not move as mining progresses. Section extinguishers: fast attack and mining progresses. A temporary 75.1903(a)(5) of the final rule requires application of the suppressant to underground diesel fuel storage area is that permanent underground diesel fuel difficult-to-reach areas where fires may defined under § 75.1900 of the final rule storage facilities be equipped with an occur. In addition, an automatic fire as an area of the mine provided for the automatic fire suppression system that suppression system has the advantage of short-term storage of diesel fuel in a fuel meets the requirements of § 75.1912. detecting and suppressing fires without transportation unit, which moves as The Diesel Advisory Committee a person in attendance. Because mining progresses. These temporary recommended that automatic fire permanent underground diesel fuel underground diesel fuel storage areas suppression systems be used to address storage facilities will not always be are required to meet the requirements in potential fire hazards from ignition and attended, it is necessary to require a §§ 75.1902, 75.1903 and 75.1906 of the fuel sources at permanent underground means of electrically or mechanically final rule. All other diesel fuel storage diesel fuel storage facilities. The detecting a fire as well as electrically or areas will be treated as permanent proposed rule included design, mechanically activating the fire storage facilities and must comply with installation and maintenance suppression system upon fire detection. all of the requirements for such requirements for automatic fire This is important since the potential facilities. Permanent diesel fuel storage suppression systems for diesel fuel hazard for mine personnel throughout facilities pose a higher risk of fire than storage areas and stationary diesel- the mine is significant if a fire in a oil and grease storage areas because powered equipment. diesel fuel storage facility could burn diesel fuel is generally stored in much Commenters to the proposed rule unnoticed. greater quantities in underground coal generally accepted the need for fire The proposed rule would have mines. In addition, diesel fuel has a suppression systems at permanent established requirements for fire lower flash point than either lubricating underground diesel fuel storage suppression devices for permanent oil or grease and can be more easily facilities. However, comments varied on underground diesel fuel storage areas ignited by a hot surface. what the requirements for fire and stationary unattended diesel- Although permanent diesel fuel suppression systems should be. Some powered equipment. Because storage facilities are provided with commenters recommended that only § 75.1916(d) of the final rule requires all ventilating air during normal manufacturer’s requirements for design, diesel-powered equipment to be operations, these facilities are required installation and maintenance be used. attended while operating, and because under § 75.1903(a)(2) of the final rule to Other commenters recommended a proposed requirements for stationary be equipped with either a self-closing more detailed approach and suggested unattended equipment have not been door or a means for automatic enclosure that the final rule outline specific adopted in the final rule, § 75.1912 of upon actuation of the fire suppression requirements for fire suppression the final rule has been modified to system. This feature should prevent any systems. apply only to permanent underground ventilating air from affecting the The storage of diesel fuel at diesel fuel storage facilities. suppressant agent. permanent underground facilities A number of commenters to the An automatic fire suppression system presents a limited fire hazard when fuel proposal expressed concern with the uses a supplemental detection device to is contained in diesel fuel tanks and requirements for fire suppression provide an early warning of a fire. The safety cans constructed of systems at permanent underground fire detection system, which is generally noncombustible material. However, diesel fuel storage facilities. One activated by either smoke or heat, 55480 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations automatically sends a signal to the This commenter also recommended that sizing of a fire suppression system is system for the discharge of suppressant the final rule specify the capacity of fire dependent upon the number of nozzles agent. Automatic fire suppression suppression systems installed at needed to adequately cover the entire systems activate a network of piping permanent underground diesel fuel area of a permanent underground diesel and nozzles to allow suppressant agent storage facilities. fuel storage facility. The number of dry to be released and distributed directly at In response to commenters, MSHA chemical canisters required will be a predetermined fire hazard. evaluated whether the requirements for proportional to the amount of area that Under the final rule, automatic fire fire suppression systems in existing must be covered by the nozzles. This detection and fire suppression systems § 75.1107 should be extended to apply information can be obtained from the are required to provide fire suppression to permanent underground diesel fuel installation manual that is part of the for all areas of a permanent storage facilities, but has concluded that listing or approval documentation. underground diesel fuel storage facility. such an extension would not be Other installation considerations, such The final rule also requires that the appropriate. The fire hazards that exist as proper location and guarding of system include audible and visual at permanent underground diesel fuel nozzles and other system components to alarms to warn of fires or system faults storage facilities are different from those prevent damage, are addressed in the and automatic electrical system on electric-powered equipment, due to system’s installation manual. In shutdown in the event of a fire. In the storage of large quantities of diesel addition to the installation addition, the final rule requires all fire fuel in close proximity to ignition requirements, the manual includes suppression systems to be tested and sources at these facilities. Additionally, provisions for follow-up maintenance maintained in accordance with because existing § 75.1107 makes and inspection procedures. manufacturer’s recommendations. specific reference to electrical controls One commenter to the proposal Finally, the final rule establishes certain and components on electric-powered recommended that the term ‘‘dry recordkeeping requirements for fire equipment, a modification of the powder’’ be deleted from paragraph (a) suppression systems that are found not existing requirements by inserting the because this commenter believed that to meet required specifications during term ‘‘permanent underground diesel there were many equally effective inspection and testing. fuel storage facility’’ in the regulatory systems, such as foam/water spray Paragraph (a) of this section of the language would result in an extremely systems, available to protect against fire final rule requires that a fire confusing regulation. Existing fire hazards. Another commenter stated that suppression system required by suppression requirements in part 75 the terms ‘‘listed’’ and ‘‘approved’’ were § 75.1903(a)(5) be an automatic have therefore not been applied to not strong enough. This commenter multipurpose dry chemical type (ABC) permanent underground fuel storage stated that there was no way of verifying fire suppression system listed or facilities. whether a system had been ‘‘listed’’ or approved as an engineered dry chemical In response to commenters’ ‘‘approved’’ and recommended that the extinguishing system by a nationally suggestions, the final rule does not term ‘‘tested’’ replace the term ‘‘listed’’. recognized independent testing adopt the phrase ‘‘suitable for the Although dry chemical is the most laboratory and appropriate for intended application’’ from the commonly used type of suppressant installation at a permanent underground proposal. Instead, the final rule includes agent in the mining environment and is diesel fuel storage facility. the more specific language ‘‘listed or specifically referenced in paragraph (a) The proposed rule would have approved as an engineered dry chemical of the final rule, paragraph (a)(1) of the required an automatic multipurpose dry extinguishing system approved by a final rule allows for alternate types of powder type fire suppression system nationally recognized independent fire suppression systems that are no less suitable for the intended application testing laboratory.’’ This modification is effective. In addition, the requirement and listed or approved by a nationally intended to clarify that an automatic fire that a system be listed or approved by recognized independent testing suppression system installed at a a nationally recognized independent laboratory. permanent underground diesel fuel testing laboratory is more stringent than A commenter to the proposal stated storage facility must be listed or using the term ‘‘tested’’. Under the final that this paragraph should require that approved by a nationally recognized rule, when a system is listed or ‘‘an automatic fire suppression system independent testing laboratory approved by a nationally recognized suitable for the intended application specifically for a fixed engineered dry independent testing laboratory, it means shall be installed to protect the entire chemical extinguishing system unit. that the system has met performance area inside the fire proof enclosure.’’ The capacity and suitability of fire and design requirements outlined in an This commenter believed that all of the suppression systems for protecting industry standard in a certain necessary requirements for fire against specific fire hazards are configuration and for a specific suppression systems were already specified as part of the listing or function. Also, if a system has been addressed in existing part 75, and that approval by the nationally recognized listed or approved by a nationally it was unnecessary to identify protected independent testing laboratory. The recognized independent testing coverage components inside the storage listing or approval ensures that a fire laboratory, it means that the system has facility if the entire area is required to suppression system is properly designed met other requirements for inspection, be protected. Another commenter stated for a particular type of fire protection maintenance, and quality control that the requirement in the proposal that hazard by putting the system through a assurances. the ‘‘system be suitable for the intended series of specific performance tests. The Also modified in this paragraph from application’’ was ambiguous and could system must also meet rigid design the proposal is the term ‘‘chemical’’ be subject to different interpretations. requirements in order to gain listing or replacing the term ‘‘powder’’ and the This commenter stated that the term approval. addition of the reference ‘‘ABC’’ for the ‘‘suitable’’ could refer to a system that Fire suppression systems should be three classes of fire. These modifications is suitable for a particular type of fire installed by a qualified individual were made in response to commenters’ (class B or combustible liquid fire) or it following the installation and request for clarification and to could mean that the system has a maintenance instructions in the system incorporate more appropriate sufficient capacity to extinguish a fire. manufacturer’s installation manual. The terminology. Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55481

A multipurpose dry chemical type systems other than dry chemical independent testing laboratory and as agent is the most commonly used and systems, so long as they provide specified by the fire suppression system successfully applied type of suppressant substantially equivalent protection. manufacturer. Since the system is agent in fire suppression systems in Under the final rule, MSHA will performance-tested to a specific underground coal mines. This type of evaluate alternate types of fire standard and in certain configurations, agent is specifically designed to suppression systems, such as foam/ it must be installed within these extinguish ABC class fires. A class A water sprinkler-based systems, using the parameters to be effective. fire refers to a fire of combustible solid criteria set forth in existing § 75.1107– Paragraph (a)(3) adopts the materials such as paper, rubber, textiles, 13. requirement from the proposal that the and cloth, and would involve such One commenter to the proposal fire suppression system be installed in items as hosing at a permanent objected to this provision and stated a protected location or guarded to underground diesel fuel storage facility. that only the manufacturer who designs prevent physical damage from routine A class B fire would include diesel fuel. and constructs these systems will know operations. Damage to any part of the Class C fires involve electrical the exact capabilities and limitations of fire suppression system can result in a components and could include such the system. This commenter also stated malfunction of the entire system and in components as lights, pumps, and that this requirement would result in the system not responding to fire valves at permanent underground diesel the installation of inadequate fire hazards. For example, a rock fall can fuel storage facilities. suppression systems at permanent pinch a hose or crush a sensor and The term ‘‘engineered’’ was added to underground diesel fuel storage create faults that can disable the entire the final rule in response to facilities, because the requirements in system or a portion of the system. commenters’ concerns regarding the existing § 75.1107–13 are applicable to One commenter stated that the adequacy of a fire suppression system to fire suppression systems installed on proposed rule did not define what address all of the fire hazards at a equipment. protections were necessary on fire permanent underground diesel fuel Existing § 75.1107–13 establishes suppression systems and suggested that storage facility. An engineered fire criteria for the approval of alternate fire the systems be fully protected from suppression system will ensure that all suppression devices. Under § 75.1107– physical elements, including rib and of the fire hazards are addressed since 13, the appropriate MSHA district roof falls. This commenter further stated a representative from a fire suppression manager may approve any fire that this protection is already provided system manufacturer will go to the suppression system or device which for electrical circuit breakers under facility and evaluate all of the fire provides substantially equivalent existing § 75.901, and that this type of hazards. The evaluation by the system protection to what would be achieved protection is even more vital for the manufacturer representative also through compliance with the standard. protection of fire suppression systems. includes determining the appropriate The final rule does not intend to This comment has not been adopted coverage areas for the fire suppression allow alternate types of fire suppression in the final rule because the system, the number and size of dry systems that do not adequately address construction requirements for chemical canisters, the length of piping, fire hazards at permanent underground permanent underground diesel fuel and the number of nozzles. diesel fuel storage facilities. Instead, all storage facilities at §§ 75.1902 and The proposed rule would have types of alternate fire suppression 75.1903 ensure that fire suppression allowed the use of inert or halogenate systems must be installed and operated systems will be protected from the gas suppressant agents in unoccupied in strict accordance with the system general hazards of the mine and enclosed areas where the use of manufacturer’s recommendations as environment. The installation such suppressants would not pose a specified in paragraph (a)(2) of this requirements in this paragraph ensure toxic hazard. One commenter to the section of the final rule. Any type of fire that additional protection will be proposal recommended that the use of suppression system that is not designed provided for specific system inert or halogenate gas suppressant and constructed in accordance with components. agents be prohibited because they create industry standards for fire protection Paragraph (a)(4), like the proposal, a toxic hazard. This requirement has not will be unacceptable. requires that the suppressant agent been included in the final rule because Paragraph (a)(2) of the final rule distribution tubing or piping be secured inert or halogenated gas fire suppression adopts the requirement from the and protected against damage, including systems are considered an alternate type proposal that the suppression system be pinching, crimping, stretching, abrasion, of fire suppression system that are installed in accordance with the and corrosion. No specific comments addressed in paragraph (a)(1) of this manufacturer’s specifications and the were received on this aspect of the section of the final rule. The potential limitations of the nationally recognized proposal. During the normal mining toxic hazard presented by inert or independent testing laboratory listing or activity in and around a permanent halogenated gas suppressant agent will approval. One commenter to the underground diesel fuel storage facility, be evaluated by MSHA on a case-by- proposal expressed the view that the a fire suppression system can become case basis as an alternate type system. term ‘‘listing’’ was not specific enough damaged from collisions with mining In addition, typical inert gas agents such and recommended that the language equipment or from daily mining as halon 1211 and 1301 are no longer ‘‘independent testing’’ be added. As operations. This requirement ensures being marketed due to their reported explained earlier, a listing or approval that fire suppression system contribution to the ozone depletion of by a nationally recognized independent components are kept in proper working the environment. testing laboratory is more stringent than order and that the entire system remains Paragraph (a)(1) of the final rule the use of the term ‘‘testing’’. This ready to discharge fire suppressant to adopts the provision from the proposal comment has therefore not been the entire area of a permanent that alternate types of fire suppression adopted in the final rule. underground diesel fuel storage facility. systems be approved in accordance with This requirement ensures that the Paragraph (a)(5) adopts the § 75.1107–13 of this part. This system is installed within the limits requirement from the proposal that fire paragraph of the final rule is intended defined by the listing or approval issued suppression nozzles be protected to allow the use of fire suppression by the nationally recognized against the entrance of foreign materials. 55482 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations

No specific comments were received on with the system. The audible and visual communication is not available, fire this aspect of the proposal. The nozzles indication of fire detection is important fighting efforts can be hampered and the used on multipurpose dry chemical fire because it alerts personnel in and fire can spread. Also, if a program is not suppression systems can be as small as around the area of a permanent instituted to warn of a fire, personnel 1⁄8 of an inch. If material such as mud, underground diesel fuel storage facility located in other areas of the mine can coal dust, or rock dust enters the nozzle, that a fire exists and that a chemical be put at risk of being cut off from it can prevent the chemical agent from agent is being discharged. The escape. In addition, faults in fire discharging entirely, or alter the pattern requirement for audible and visual suppression systems need to be and coverage of fire suppressant. indication of fault detection is identified and communicated to Paragraph (b) of this section of the established in order to alert personnel maintenance personnel so that system final rule requires that the fire working in and around diesel fuel defects can be corrected. If an automatic suppression system provide automatic storage facilities that a problem exists fire suppression system is not fire detection and automatic with the fire detection system so that functioning properly and a fire breaks suppression for all areas within a the defect can be addressed. out, it could result in a serious hazard permanent underground diesel fuel The proposal would have required since the fire would not be extinguished storage facility. The proposal would that audible and visual alarms to warn in its incipient stage. The inspection have required automatic fire detection of fire or system faults be provided at and maintenance requirements for fire and fire suppression for fuel storage the protected area and at a surface suppression systems specified under the tanks, containers, safety cans, pumps, location which is always staffed when final rule should ensure the reliability of electrical panels and control equipment personnel are underground who could the system and minimize the occurrence in fuel storage areas. The requirement in be endangered by a fire. In addition, the of false alarms. the final rule responds to commenters’’ proposal would have required that a The final rule responds to recommendations that automatic fire means also be provided for warning all commenters by providing flexibility in detection and suppression be provided endangered personnel in the event of a the method used to alert mine personnel for all areas within a permanent fire. that a fire exists at a permanent underground diesel fuel storage facility Several commenters to the proposal underground diesel fuel storage facility. enclosure. expressed concern over this Under the final rule, when a fire is Although the listing or approval requirement, stating that the detected, personnel are to be warned in generally describes certain areas that requirement for visual and audible accordance with the provisions set forth may pose a fire hazard, it does not alarms at a surface location would be in existing § 75.1101–23. Section specifically identify which hazards impractical for many small operators 75.1101–23 requires that each operator must be covered by fire suppression. because it would result in operators of an underground coal mine adopt a Fire suppression coverage for the entire maintaining a monitoring system to program for the instruction of all miners area of a permanent underground diesel detect fires. These commenters in fire fighting and evacuation. The fuel storage facility is necessary because recommended that fire suppression program of instruction is submitted to of the potential fire hazard created by systems be examined regularly to the appropriate MSHA district manager numerous ignition and fuel sources. The determine system faults, and that for approval on a mine-by-mine basis. proposed coverage of only certain audible and visual alerts should only be By including the requirement for early specific hazards within a diesel fuel required at locations where miners are warning of fires at permanent storage facility would have resulted in present. Another commenter stated that underground diesel fuel storage facility other potential hazards not being mines have become lax in responding to in § 75.1101–23, the final rule allows addressed. Under the proposal, it would fire warnings. One commenter this important communication have been possible for a fire to begin in recommended that a formal procedure provision to be developed by taking into one area of the facility that was not be established to warn personnel in the consideration mine-specific conditions. specifically covered by fire suppression. event of a fire, and that this procedure This section of the final rule also Under these circumstances, a fire could should be submitted to MSHA for requires that a person be assigned on the be difficult to contain if large quantities approval and be included in the mine surface whose duties include receiving of leaked diesel fuel are present emergency fire fighting and evacuation notification of fire detection and alerting throughout the facility. The final rule plan and in the miners’’ annual underground personnel that a fire has requires the entire area of a diesel fuel refresher training. Other commenters been detected. The final rule does not storage facility to be covered because of stated that the proposed phrase ‘‘always specify any qualification or training for the likely spread of a fire if a diesel fuel staffed’’ does not ensure that a qualified the person designated on the surface. leak develops. or responsible person will be designated However, the instruction of all mine Paragraph (c) of the final rule requires to alert mine personnel underground in personnel, including the designated that audible and visual alarms to warn the event of a fire. One commenter person staffed at a surface location, is a of fire or system faults be provided at suggested that the language ‘‘always critical element of an early warning fire the protected area and at a surface staffed’’ be changed to ‘‘someone who is response strategy and is the location which is continually monitored qualified.’’ responsibility of the mine operator by a person when personnel are The continual monitoring by a person under § 75.1101–23. underground. The final rule also on the surface of fire detection and fire Paragraph (d) of this section of the requires that, in the event of a fire, suppression system faults is not a final rule requires that the fire personnel be warned in accordance with burdensome requirement given the suppression system deenergize all the provisions set forth in § 75.1101–23. chance that a fire or system fault may power to the diesel fuel storage facility This requirement is intended to provide otherwise go unnoticed. The early when actuated except that required for a means for immediate notification of warning of a fire at a permanent automatic enclosure and alarms. This personnel in the area of a permanent underground diesel fuel storage facility requirement was added to the final rule underground diesel fuel storage facility is critical, due to the presence of in response to commenters’ concerns when the fire suppression system numerous ignition sources and large regarding reignition of fires caused by detects a fire or identifies a problem quantities of diesel fuel. If electrical failures. As stated earlier, fire Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55483 suppression systems are designed to suggested that actuators be separated requirement will serve to alert miners suppress fires in their incipient stage. If from each other, and specifically and maintenance personnel when a fire the ignition source and fuel sources recommended that a check valve be suppression system is not in a state of remain present after the fire suppression used to ensure that one faulty actuator readiness due to an electrical system system has been actuated, the fire can does not circumvent or defeat the use of fault. The continuity of the electrical reignite. Shutting off any unnecessary the other actuator. system used to detect fires and actuate electrical power to the facility will The final rule specifically addresses the system is important since an remove a potential ignition source and only requirements for dry chemical fire automatic system is based on early reduce the likelihood that the fire will suppression systems, and a water detection and automatic actuation. reignite. sprinkler type fire suppression system One commenter to the proposal stated The Ontario accident data for fires on would be considered an alternate type that the fire suppression system should diesel equipment supports the need for of fire suppression system under also be protected as specified in shutting off ignition sources to prevent paragraph (a)(1) of this section. As a § 75.1101–17, which requires that each reignition. This hazard is just as result, the final rule does not adopt the dry powder chemical system be significant for diesel fuel storage suggestion that an additional adequately sealed to protect all facilities, since potential electrical requirement be added to address components of the system from ignition sources are present with large manual application when water moisture, dust, and dirt. quantities of diesel fuel. The final rule sprinkler systems are used. In addition, The protection of the fire suppression is also consistent with existing the final rule does not include a system components from moisture and § 75.1107–4, which requires that the requirement for a check valve between dust is adequately addressed by the electric power source to the protected the actuators for fire suppression requirements of paragraphs (a)(3), (a)(4) equipment be disconnected when the systems. This is considered part of the and (a)(5) of this section of the final fire suppression system is actuated. system design and is more appropriately rule. In addition, the listing or approval This requirement also applies to any addressed by the system manufacturer typically includes requirements for a fuel transportation unit located in a and the listing or approving nationally dust shield and checks of the powder permanent diesel fuel storage facility recognized independent testing for dryness. that is equipped with an electric panel laboratory. Paragraph (h) of the final rule adopts and controls directly connected to an Paragraph (f) of the final rule adopts the requirement from the proposed rule electrical power source. the requirement from the proposal that that each fire suppression system be Paragraph (e) of the final rule, like the the fire suppression system remain tested and maintained in accordance proposal, requires that fire suppression operational in the event of an electrical with the manufacturer’s recommended systems at permanent underground system failure. No specific comments inspection and maintenance program diesel fuel storage facilities be equipped were received on this aspect of the and as required by the nationally with two manual actuators. The final proposal. This requirement is intended recognized independent testing rule requires that at least one actuator be to ensure that the system will be laboratory listing or approval, and be located within the fuel storage facility functional if power from external visually inspected at least once each and at least one actuator be located a sources is lost. The phrase ‘‘engine week by a person trained to make such safe distance away from the facility in shutdown’’ has not been adopted from inspections. intake air, upwind of the storage facility. the proposal, because the phrase would The proposed rule would have The final rule is intended to ensure that have applied to fire suppression system required each fire suppression device to at least two manual actuators be requirements for unattended diesel- be visually inspected at least once each provided in locations that are accessible powered equipment. Because the final week by a person qualified to make such to mine personnel working in or around rule does not permit the operation of inspections. The proposal also would a permanent diesel fuel storage facility. unattended diesel-powered equipment, have required that each fire detection This requirement is similar to the fire this phrase is no longer necessary. device be tested and maintained in extinguisher location requirements for Paragraph (g) adopts the requirement accordance with applicable underground fuel storage facilities and from the proposal that electrically requirements in § 75.1100. areas in § 75.1903(b)(1) and (b)(2) of the operated detection and actuation Commenters to the proposal generally final rule, which provide that at least circuits be monitored and provided with expressed support for maintenance of one portable fire extinguisher be located status indicators showing power and fire suppression systems installed at outside of the storage facility or area circuit continuity. The final rule also permanent underground diesel fuel upwind of the facility, in intake air, to requires that automatic detection storage facilities. A number of enable miners to reach the actuator in systems be provided with a means to commenters, however, recommended the event of fire. To allow flexibility in indicate the functional readiness status that a maintenance program specifically complying with the requirements of this of the detection system. This paragraph designed for fire suppression systems be paragraph, what constitutes a ‘‘safe requires that the fire suppression system developed at each mine. One distance from the facility’’ has not been provide a means of notifying miners and commenter to the proposal expressed specified in the final rule. The location maintenance personnel of the functional concern over the requirement for weekly of the actuator outside the facility readiness status of both the detection visual inspections of fire suppression should be determined based on mine and actuation circuit and the power systems at permanent underground conditions and the particular usage of source. This paragraph also requires that diesel fuel storage facilities. This the facility. automatic systems not electrically commenter recommended that there be Commenters generally expressed operated provide a means of notifying frequent functional testing of the support for this aspect of the proposal. the operator or maintenance person of suppression systems to ensure that lines One commenter recommended that a the functional readiness of the system. are not blocked or pinched. Another requirement be added to address This requirement is included in the commenter stated that the proposal did manual application of water in lieu of final rule to ensure the continuity of not specify the types of tests that should manual actuators when sprinkler electrical systems used to detect faults be conducted on fire suppression systems are used. Another commenter on fire suppression systems. This systems at permanent underground 55484 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations diesel fuel storage facilities. Other person under § 75.1915. However, the does not meet the installation or commenters expressed concern over the final rule intends that the person maintenance requirements of this frequency of tests and inspections. performing tests and inspections of fire section. This requirement is important These commenters recommended that suppression systems have sufficient because if a fire suppression system detailed inspections and functional tests knowledge to determine whether a fire does not meet its listing or approval, the be conducted semiannually or quarterly. suppression system is functioning defect can be of a nature and One commenter recommended that fire properly. MSHA anticipates that since seriousness that the system can fail suppression systems be treated in the fire suppression systems are common to when a fire begins. This requirement is same manner as portable fire both electric and diesel equipment, the intended to ensure that records are extinguishers and that inspections be mine operator will work with either the maintained and made available to conducted once a week and physically fire suppression system manufacturer or interested parties when a defect is tested twice a year. distributor to ensure that persons found, and that the appropriate level of Under the final rule, the weekly responsible for the maintenance of fire mine management is made aware of visual inspection is not intended to be suppression systems are adequately defects requiring attention. an in-depth examination. The weekly trained. The final rule does not specify a visual inspection is intended to be a Paragraph (i) of the final rule particular way of recording the test and quick check to verify that there are no establishes recordkeeping requirements maintenance data, only that it be located obvious defects, such as disconnected for the inspection and maintenance at the surface of the mine. The records hose lines or altered nozzles. An in- requirements for fire suppression of the inspections and tests must be depth inspection takes place as part of systems set forth in paragraph (h), and made in a secure media not susceptible the manufacturer’s recommended requires that persons performing to alteration. A detailed discussion of testing and inspection procedure also inspections and tests of these systems the subject of acceptable record books required under the final rule. Fire record results of tests and inspections and electronic records can be found suppression system manufacturers are only when a system does not meet the under the heading ‘‘Recordkeeping most familiar with the design and installation or maintenance Requirements’’ in the General operation of their systems and are best requirements of this section. Under Discussion section of this preamble. able to identify the components that these circumstances, the person The final rule does not adopt the need maintenance, the type of performing the inspection or test is requirement from the proposed rule that maintenance needed, and the frequency required to indicate the fuel storage records of inspections be maintained at of maintenance. Adequate maintenance facility where the fire suppression an appropriate location near each fire is essential because of the importance of system did not meet the installation or suppression system. Instead, paragraph these systems in fire protection. The maintenance requirements of this (i)(3) of this section of the final rule maintenance and testing requirements section, the defect found, and the establishes the requirement for fire suppression systems are in corrective action taken. The final rule recommended by a commenter that addition to the requirement set forth for also requires that these records be kept records of inspections and tests be a weekly visual inspection. either manually or electronically in a maintained at a surface location at the The manufacturer’s inspection and secured manner that is not susceptible mine. Storing records on the surface at maintenance procedures are spelled out to alteration. In addition, the final rule the mine makes them more accessible to in great detail in the manufacturer’s requires that records be maintained at a interested parties. Also in response to manual and include the recommended surface location at the mine for one year commenters, the final rule provides inspection intervals, which depend on and made available for inspection by an access not only to miners the environment in which the system authorized representative of the representatives but to authorized operates. In addition, these inspection Secretary and by miners representatives. representatives of the Secretary. This and maintenance procedures are The proposal would have required provision ensures that test and evaluated as part of the system’s that a record be kept of all of the inspections of fire suppression systems approval or listing by a nationally inspections of fire suppression systems are being made and, when a defect is recognized independent testing and maintained at an appropriate found, corrective action is taken. laboratory. location for each fire suppression Paragraph (j) adopts the proposed This paragraph is identical to the device. One commenter to the proposal requirement that all miners normally requirement in § 75.1107–16(a). As recommended that the records required assigned in the active workings of the stated earlier, the fire suppression by this section be made available to all mine be instructed about the hazards system requirements in §§ 75.1107–3 interested parties and that this inherent to the operation of fire through 75.1107–16 cannot be directly information be centrally located on the suppression systems, and where applied to diesel equipment because the surface of the specific mine. appropriate, the safeguards available for fire hazards presented by diesel fuel are Office of Management and Budget each system. This requirement is different from those on electric-powered guidance comments directed MSHA to intended to ensure that all miners equipment, due to the close proximity reexamine the recordkeeping working in areas where fire suppression of large quantities of diesel fuel to requirements in the proposal and systems operate are instructed in any potential ignition sources. recommended that the final rule require inherent hazards and necessary Also modified in this paragraph is the paperwork that was the least precautions associated with the replacement of the term ‘‘device’’ with burdensome necessary. MSHA has done operation of these systems. The final the term ‘‘system’’. This was done so, and the final rule does not adopt the rule modifies the proposal in that the because MSHA intends that the whole proposal that all fire suppression system term ‘‘device’’ has been replaced by the system be inspected, not just individual test and maintenance results be term ‘‘system’’ to clarify that this components of a system. recorded. In response to commenters requirement applies to the entire system A person ‘‘trained’’ to perform the and consistent with other provisions of rather than to system components. inspections and tests required by the final rule, paragraph (i) requires that One commenter to the proposal paragraph (h) of this section of the final records of inspections and tests be made agreed with the requirement that miners rule is not required to be a qualified only when a fire suppression system be trained in the hazards and safeguards Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55485 of fire suppression systems, but Starting aids that are ignited in a diesel The final rule requires regular recommended that such training be engine will both heat up the cylinder maintenance and testing of diesel- incorporated in the annual refresher walls of the engine and start the engine powered equipment, designed to ensure training required under existing spinning, resulting in easier ignition of that the equipment is kept in good § 75.1101–23 for the program of the diesel fuel. operating condition. Compliance with instruction, location and use of fire The use and storage of volatile fuel these requirements should eliminate fighting equipment. Under the final starting aids in underground coal mines any need to use starting aids as a rule, it is anticipated that the instruction present safety hazards, due to the replacement for effective equipment on the hazards of fire suppression starting aids’ high volatility. When these maintenance. systems required by this paragraph will substances are stored or used Paragraph (a) of this section requires be part of the § 75.1101–23 instruction. improperly, they can present a very real that volatile fuel starting aids be used in danger of fire or explosion, particularly accordance with the recommendations Section 75.1913—Starting Aids in the underground coal mine of the starting aid manufacturer, the This section addresses the storage and environment. engine manufacturer, and the machine use of volatile fuel starting aids for Commenters were divided on whether manufacturer. The proposed rule would diesel-powered equipment. The the use of starting aids should be have required that volatile fuel starting requirements of the final rule are similar permitted in underground coal mines. aids be used in accordance with the to the requirements contained in the Some commenters recommended a specific recommendations in the engine proposal, with some minor complete prohibition of the use of manufacturer’s maintenance and modifications. This section places volatile fuel starting aids underground, operations manual. limitations on the use and storage of stating that starting aids are extremely Several commenters noted that the volatile fuel starting aids underground, flammable, have a very low flash point, written documentation from machine or to minimize the risks of fire or and can be ignited by any source of heat engine manufacturers does not always explosion. Under the final rule, volatile in the mine. These commenters believed address correct use of volatile fuel fuel starting aids must be used in that there were already numerous starting aids, and expressed their accordance with recommendations of potentials for fire in the underground concern that starting aids could create the starting aid manufacturer, the engine coal mine environment, and that serious hazards if not used in manufacturer, and the machine permitting the use of starting aids would conformance with specific manufacturer. The final rule also introduce another unnecessary hazard recommendations. In response to these includes requirements for the storage of into that environment. Some comments, the final rule provides that volatile fuel starting aids, and prohibits commenters believed that starting aids starting aids must also be used in the use of starting aids under certain were used at some mines as a substitute accordance with the recommendations circumstances, such as in areas where for effective maintenance of diesel of the starting aid manufacturer, permissible equipment is required or engines, and that a properly maintained ensuring that mine operators will at a where 1.0 percent or greater engine should be able to start on its minimum be guided by those concentration of methane is present. own, without the boost that a starting instructions. Starting aid manufacturers Connection of compressed oxygen or aid provides. are already required by Occupational compressed flammable gases to diesel Other commenters advocated Safety and Health Administration air-start systems is also prohibited. allowing the use of starting aids but regulations to develop Material Safety The Diesel Advisory Committee strictly controlling their use. Several Data Sheets (MSDS) for their products. recognized that improper storage and commenters stated that starting aids To comply with this provision the mine handling of starting aids could present were currently being used safely and operator should obtain an MSDS and fire and explosion hazards in effectively in their mines, and that any any other product safety and use underground coal mines. The hazards arising from their use could be information prepared by the starting aid Committee therefore recommended that controlled by careful handling. These manufacturer on the safe use of that MSHA regulate the storage and use of commenters stated that proper particular starting aid, and use the starting aids. The proposed rule set forth maintenance of diesel engines does not starting aid in accordance with those limitations on the use of starting aids, to prevent starting difficulties in cold instructions. minimize the hazards associated with temperatures. One commenter observed Because engine and machine their use in the underground coal mine that air temperatures at mines located at manufacturers are in the best position to environment. The requirements of the elevations of 9,000 or 10,000 feet can determine whether volatile fuel starting final rule reflect MSHA’s determination fall well below 0° F. Several aids can be safely and effectively used that volatile fuel starting aids can be commenters observed that a diesel- with a particular engine or machine, the safely used underground if appropriate powered machine that has been shut final rule also requires mine operators to precautions are taken. down and has been sitting in cold use starting aids in accordance with any Volatile fuel starting aids, normally weather, such as over a weekend, can be available recommendations from the ethyl ether, facilitate the starting of virtually impossible to start without the engine and machine manufacturers on diesel engines in cold temperatures. In use of a starting aid. the safe use of starting aids. This very cold weather the compression Some of the commenters who favored requirement recognizes that volatile fuel ignition of diesel engines cannot easily prohibiting the use of volatile fuel starting aids can damage engine or reach the high temperature necessary to starting aids underground stated that machine components and result in the ignite diesel fuel. This makes it difficult, starting aids sometimes were used as a failure of machine safety devices or and in some cases impossible, to start substitute for effective maintenance. increase exhaust emissions. For the engine without special measures, Although an engine that has not been example, a buildup of the starting aid in such as the use of volatile fuel starting properly maintained could in some intake or exhaust components could aids. Volatile fuel starting aids sprayed cases be started more easily with result in an explosion. Use of starting into a cold diesel engine help to start starting aids, this fact alone does not aids in accordance with the the engine because they ignite at a much compel the prohibition of volatile fuel recommendations of engine and lower temperature than diesel fuel. starting aids in underground coal mines. machine manufacturers will minimize 55486 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations any safety hazards and avoid damage to damaged through contact with other vicinity of any area where volatile fuel the engine or machine, such as damage items, resulting in the release of the starting aids are being used. to intake or exhaust components, starting aid and the creation of a Paragraph (c)(3) adopts the proposal especially on permissible equipment. potentially hazardous situation. to prohibit the use of volatile fuel Although the final rule is not Some commenters noted that the term starting aids in any area of the mine intended to prohibit the use of starting ‘‘fire proof enclosure’’ used in the where 1.0 percent or greater aids if such information has not been proposed rule was not defined concentration of methane is present. developed by the machine or engine anywhere in the regulations, and This requirement minimizes the manufacturer, MSHA encourages diesel- recommended the substitution of the possibility that starting aid vapors that powered engine and machine term ‘‘noncombustible’’. Other have accidentally been ignited would manufacturers who do not already do so commenters opposed the use of the term spread to methane in the surrounding to develop recommendations on the use ‘‘noncombustible’’ because of their area. Permissible equipment may not of volatile fuel starting aids with the concern that a container that is simply prevent a flashback of fire that could engines and machines they produce. noncombustible may not be substantial ignite a methane atmosphere. Paragraph (b) requires that containers enough to protect starting aid The proposed rule would have of volatile fuel starting aids be containers. MSHA agrees with prohibited the use of starting aids in conspicuously marked to indicate their commenters who believe that the term areas of the mine where 1.0 percent or contents. This paragraph further ‘‘fire proof’’ is ambiguous, and also with greater of methane is detected. The final requires that containers of volatile fuel commenters who oppose the rule has been clarified to reflect that starting aids that are not in use be stored substitution of the term volatile fuel starting aids must not be in metal enclosures that are used only ‘‘noncombustible’’ for the term ‘‘fire used where 1.0 percent or greater of to store starting aids. The metal proof’’ because containers that are methane is ‘‘present’’, thereby placing enclosures themselves are required to be ‘‘noncombustible’’ may not be on the mine operator the responsibility conspicuously marked, secured, and sufficiently durable. The final rule of ensuring that methane levels are protected from damage. therefore requires that containers of within acceptable limits before volatile The requirement that starting aid starting aids be stored when not in use fuel starting aids are used. containers be conspicuously marked in metal enclosures, which are not only Paragraph (d) imposes limitations on was not included in the proposal, but noncombustible but also sturdy enough the use of compressed gases as starting has been incorporated in the final rule to protect the starting aid containers that aids for diesel-powered engines. The in response to commenters’ concerns are stored there. final rule adopts the proposal’s over the serious dangers that could Paragraph (c) adopts the requirements prohibition of the connection of result if starting aids containers were of the proposal, and imposes specific compressed oxygen or compressed damaged in any way. The container restrictions on where and under what flammable gases to diesel air-start marking requirement is intended to circumstances volatile fuel starting aids systems. Commenters generally prevent inadvertent damage to may be used in underground coal supported this restriction. The use of containers by ensuring that mine mines, to minimize any hazards compressed oxygen in the presence of personnel are aware of the containers’ presented by their use. Paragraph (c)(1) engine lubricants, which are normally contents. Labels that are affixed to the prohibits volatile fuel starting aids from in diesel air start-systems, presents an starting aid can by the starting aid being taken into or used in areas where immediate danger of a fire. The final manufacturer will satisfy the permissible equipment is required. rule consequently forbids the use of requirement for container marking. Volatile fuel starting aids can create compressed oxygen for this purpose. The final rule also requires that flames that flame arresters, which are Additionally, the introduction of enclosures for containers of starting aids designed to provide protection against compressed flammable gases into the be made of metal, marked, secured, and methane ignitions, cannot stop. Use of machine’s compressed air system protected from damage, and used only volatile fuel starting aids in an area presents not only the same fire hazard for the storage of starting aids. The where permissible equipment is as compressed oxygen, but also a danger proposed rule would have required only required could lead to an ignition of any of explosion from flammable gases being that starting aids be stored in a fire proof methane in the area. Use of starting aids placed in close proximity to possible enclosure when not in use. The final in those areas is therefore forbidden in sparks from the diesel engine. The final rule includes additional requirements to the final rule. rule therefore also prohibits the use of address commenters’ concerns that Paragraph (c)(2) prohibits the use of compressed flammable gases in diesel starting aid containers could be volatile fuel starting aids in the presence air-start systems. Nonflammable gases, inadvertently damaged, resulting in the of open flames or burning flame safety such as nitrogen, are permitted for this unintentional release of the highly lamps, or when welding or cutting is purpose. flammable starting aid. These additional taking place. As noted by several requirements are similar to the commenters, vapors from volatile fuel Section 75.1914 Maintenance Of Diesel- requirements in the final rule that apply starting aids are easily ignited. The final Powered Equipment to safety cans containing diesel fuel that rule requires that volatile starting aids Section 75.1914 sets forth are transported on vehicles. Because be kept away from the potential ignition maintenance, repair and testing both volatile fuel starting aids and sources of open flames or welding or requirements for diesel-powered diesel fuel present a possible fire cutting. Starting aids are also prohibited equipment, and also indicates the level hazard, the final rule imposes similar in the presence of burning flame safety of training or qualification a person precautions for the handling and storage lamps. The gauze in a flame safety lamp, must have to perform these important of these substances. The final rule also although safe for use in the presence of tasks. The rule generally requires that prohibits any other items, such as tools, methane, will not prevent the diesel-powered equipment be from being stored with volatile fuel propagation of the flame by the ether maintained in safe and approved starting aids. This prohibition responds vapors given off by the starting aid. The condition, and specifically requires to commenters’ concerns that containers final rule is intended to prohibit these weekly equipment examination, weekly of volatile fuel starting aids could be ignition sources in the immediate testing and evaluation of gaseous Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55487 emissions, flushing and draining of Several commenters recommended that mandated by an MSHA approval, scrubbers, and changing of air filters. A the word ‘‘approved’’ be deleted, in the approved equipment does not always person must be qualified under belief that it would be acceptable to use conform to easily recognizable § 75.1915 to perform maintenance and permissible equipment in non-approved standards, and the ability to perform repairs of approved and other specified condition when the machine was being maintenance and repair work on the features on diesel-powered equipment, operated in an outby location. more complex features of diesel- and to conduct weekly equipment tests Paragraph (a) of the final rule powered equipment requires a and examinations. However, the rule prohibits the use of diesel equipment comprehensive understanding of the allows other functions required under that is not in approved and safe equipment’s design. The final rule this section to be performed by a person condition. This prohibition includes the therefore adopts the requirement of the not qualified under § 75.1915, so long as operation of permissible diesel-powered proposal that persons performing work the person has been trained in the task. equipment in outby areas when an on certain specified features of diesel- This section of the final rule approved feature has been disabled. powered equipment be qualified under recognizes that effective equipment There are several reasons that this § 75.1915, which requires completion of maintenance is an indispensable requirement has been adopted in the a training program developed by the element in reducing the health and final rule. Many types of approved mine operator. safety hazards of diesel-powered diesel equipment are extremely mobile, The proposed rule specified only that equipment, and that adequate training moving easily from areas of the mine ‘‘approved features’’ must be of maintenance personnel is an where permissible equipment is maintained and repaired by a person important part of ensuring that such required to areas where it is not, and qualified under § 75.1915, and did not work is performed correctly. The there is nothing to distinguish a piece of include within its scope ‘‘features purpose of the requirements of this diesel-powered equipment that has not required by §§ 75.1909 and 75.1910’’ as section is to ensure that diesel-powered been maintained in permissible does paragraph (b) of the final rule. equipment is properly maintained so condition from one that has. Both bear However, the scope of this requirement that it does not deteriorate through MSHA approval plates. Additionally, under the final rule is essentially the neglect, abuse, or normal use and result temperature sensors and other safety same as it would have been under the in a safety or health hazard to miners. system components on diesel-powered proposed rule. Under the proposed rule, Virtually all commenters to the equipment can be permanently damaged all nonpermissible equipment, with the proposed rule supported the need for by exposure to high temperature exception of a limited class of light-duty maintenance requirements for diesel- exhaust gas when the equipment is not equipment and stationary unattended powered equipment used in maintained in approved condition and a equipment, would have been subject to underground coal mines. Commenters safety system is bypassed. The final rule a whole machine approval under part 7. agreed that regular maintenance and therefore requires that equipment be Because the final rule does not require routine examination of equipment is maintained not only in safe condition whole machine approval of essential, as the performance of even the but also in approved condition. nonpermissible equipment, and instead best-designed equipment will decline Paragraph (b) requires that requires that this equipment be over time without proper maintenance. maintenance and repairs of approved provided with the safety features set Inadequate maintenance of diesel features, and the features required by forth in §§ 75.1909 and 75.1910, equipment can result in the creation of §§ 75.1909 and 75.1910, be made only essentially the same features must be fire or explosion hazards, and the levels by a person qualified under § 75.1915. maintained and repaired by a qualified of harmful gaseous and particulate The final rule retains the concept of the person under the final rule as would components in diesel exhaust can proposal that the maintenance and have been required under the proposal. increase when equipment is poorly repair of certain features of diesel- Paragraph (c) of the final rule requires maintained. powered equipment be performed by a that the water scrubber system on Several commenters to the proposed qualified person. The majority of diesel-powered equipment be drained rule provided specific examples of the commenters supported mandatory and flushed, by a person who is trained problems and hazards that result when training and some form of qualification to perform this task, at least once during maintenance personnel are poorly for those individuals performing these each shift that the equipment is trained. Some commenters stated that functions because it would help to operated. The proposed rule contained inadequately trained personnel ensure that diesel equipment is the same requirement for flushing frequently failed to maintain diesel adequately maintained and kept in good scrubbers, but did not specify what type equipment in approved condition, operating condition. The Diesel of training was required for the person causing the engines to deteriorate and Advisory Committee also recommended performing the task. resulting in increased levels of harmful that qualified persons be responsible for The rationale behind the requirement exhaust gases. Commenters also the more complicated systems on the for flushing and draining is that routine reported that untrained persons were machine, such as the approved cleaning of scrubbers, which cool more likely than properly trained components. equipment exhaust gases and act as persons not only to allow safety systems A more extensive level of training is flame arresters, is essential to prevent a to malfunction in the first place, but needed to ensure that persons working buildup of solid exhaust particles and also to bypass the malfunctioning safety on more complex equipment features sludge in the scrubber. This condition system in order to continue operating are adequately skilled. Additionally, can eventually block internal passages the machine, rather than to repair the MSHA machine approval requirements of the scrubber, impairing the scrubber’s system. are largely performance-oriented, and effectiveness and compromising safety Paragraph (a) of this section retains equipment manufacturers consequently in the mine. The Advisory Committee the language of the proposed rule and have significant latitude in designing also recommended that MSHA require requires that all diesel-powered their equipment to satisfy MSHA’s mine operators to change scrubber water equipment used in underground coal permissibility requirements. Because a on a regular basis. mines be maintained in approved and variety of equipment designs could Commenters generally supported safe condition or removed from service. accomplish the safety objectives regular draining and flushing of 55488 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations scrubber systems, although some Paragraph (d) requires that the intake blocked by dirt to require servicing or commenters questioned whether the air filter be replaced or serviced either replacement. rule should specify the point in the shift when the intake air pressure drop Not all types of diesel-powered when draining and flushing must be device indicates that it is necessary, or equipment are presently equipped with done. Commenters also questioned what when the engine manufacturer’s intake air pressure devices. Under the level of qualification was necessary as a maximum allowable air pressure drop proposed rule, air filters without air prerequisite to performing this task. The level is exceeded. The final rule also pressure devices would have been consensus of the Advisory Committee requires that this replacement or required to be changed or serviced was that routine maintenance, such as servicing be done by a person who is ‘‘when dirty’’. However, as discussed changing scrubber water, could be trained to perform the task. above, that provision has not been performed by a person who is not Maintenance of diesel machine air included in the final rule. One certified, and that task training would filters is an important element of overall commenter to the proposed rule stated be sufficient in those situations. equipment maintenance. Air filters that service indicators specified by the MSHA agrees that draining and screen the air taken in by the machine manufacturer are sufficient for flushing of the scrubber is a relatively for combustion. Over time, the filters determining when an air filter should be straightforward task, and that the load up with dust and dirt, restricting changed. A service indicator is simply comprehensive training required for air flow and making the engine work the manufacturer’s specification of the qualification under § 75.1915 is harder to pull in the same amount of air. drop in pressure across the air filter, unnecessary to ensure that persons As the engine works harder, greater reflected by the air pressure gauge on perform this task competently. The final quantities of engine emissions are the machine, indicating that the air filter rule therefore clarifies MSHA’s produced, adversely affecting the must be serviced or replaced. MSHA intention that scrubber draining and quality of the air that miners breathe. agrees that service indicators provide an flushing need not be done by a person Research and experience indicate that objective and measurable method of qualified under § 75.1915, only that the air restrictions have a negative effect on determining the need for air filter person be trained to perform the task. emission generation, specifically carbon servicing for machines without intake MSHA expects that the draining and monoxide and diesel particulate. air pressure devices. The final rule has flushing of the water scrubber system The proposed rule would have therefore been modified to provide that will typically be performed by the required filter replacement or servicing air filters must be replaced or serviced when the engine manufacturer’s machine operator. when the filter was ‘‘dirty’’ as well as In response to the proposed maximum allowable air pressure drop when the machine’s intake air pressure requirements for scrubber maintenance, level is exceeded. drop device indicated that it was some commenters stated that the final The proposal did not specify the level rule should specify that scrubber necessary. The proposed rule would not of training or qualification required for systems must be drained and flushed at have required, as does the final rule, the person performing air filter the beginning of the shift. These filter maintenance when the maintenance under this paragraph, and commenters were concerned that if the manufacturer’s maximum allowable air commenters questioned whether MSHA rule did not specifically require pressure drop level is exceeded. intended that this task be performed by draining and flushing at the beginning Commenters generally supported the a person qualified under § 75.1915. of the shift, MSHA could not issue a requirements of this paragraph, and Commenters generally stated that air citation for violation of this standard several stated that dirty air filters were filter maintenance did not need to be until the end of the shift, making frequently to blame when engines began conducted by a qualified person, only enforcement difficult. Other to produce increased levels of carbon by someone who has been trained to commenters advocated that the final monoxide. However, several perform the task. This view is consistent rule require the scrubber system to be commenters objected to mandatory filter with the consensus of the Advisory drained and flushed at the end of the replacement and servicing when the Committee that simple maintenance shift, allowing mine operators to filter was ‘‘dirty’’, pointing out that the activities, such as changing air filters, perform the task as part of the routine term ‘‘when dirty’’ was ambiguous. could be performed by miners who are maintenance to prepare the machine for Commenters stated that air filters catch not qualified or certified. Accordingly, the next shift. dirt continually, and are therefore the final rule specifies that air filter MSHA has carefully considered the ‘‘dirty’’ to some degree at all times. maintenance must be performed by a comments on this issue, and has chosen MSHA agrees with commenters on this person who has received training in the to retain the language of the proposed issue, and has concluded that the use of task. rule in the final rule, which simply the term ‘‘when dirty’’ could create Paragraph (e) requires that mobile requires scrubber systems to be flushed uncertainty for mine operators in diesel-powered equipment that is to be and drained once during each shift that complying with the provision. The used during a shift be visually examined the equipment is operated, without requirement that filters be replaced or by the equipment operator before being specifying when during the shift the serviced ‘‘when dirty’’ has therefore not placed in operation, and that equipment task must be performed. This is been adopted in the final rule. defects that affect safety be reported to consistent with MSHA’s intention to The final rule does adopt the the mine operator. This requirement is afford mine operators reasonable requirement of the proposed rule that identical to that of the proposed rule, flexibility in performing the air filters be replaced or serviced when and was supported by commenters. maintenance required by the final rule. the intake air pressure device indicates MSHA intends that the examinations However, MSHA recommends that mine that it is necessary. Intake air pressure required under this paragraph consist of operators perform scrubber maintenance devices monitor the air pressure across the equipment operator conducting a at about the same point during every the filter. As the air filter loads up with check of the equipment before operating shift, thereby ensuring that scrubbers dust and dirt the pressure drop across it to verify that the machine has no are flushed and drained every 8 to 10 the filter will increase, and at a certain obvious safety defects, such as fuel hours (depending on the length of the point the intake air pressure device will leaks, loose batteries, or accumulations shift) during the equipment’s operation. signal that the filter is sufficiently of combustible materials on the Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55489 machine. The language of the final rule latter comment is consistent with the the use of equipment-specific has been changed slightly to require that unanimous recommendation of the permissibility/approval checklists and the equipment be ‘‘visually examined’’ Advisory Committee that diesel- equipment manufacturers’ maintenance rather than ‘‘inspected’’, to better powered equipment be maintained on manuals should achieve this result. convey the nature of the examination. the same basis as electrical equipment. MSHA would also consider a mine Such an examination will provide a MSHA has concluded that testing and operator to be in compliance with this regular check on some of the more examination of diesel-powered provision if the operator developed its conspicuous equipment problems. This equipment on a weekly basis will own checklist format based on and paragraph also requires that observed ensure that equipment is being consistent with the manufacturers’ defects be reported promptly to the maintained in safe and healthful maintenance manuals. mine operator, which could be a condition. Weekly examination of Equipment manufacturers, with the responsible management official, such electrical equipment in underground assistance of MSHA, currently develop as a superintendent or foreman. The coal mines has been required and has such checklists as part of the MSHA word ‘‘promptly’’ has been included in served as an effective check for adequate approval process. These checklists are the final rule to clarify that safety equipment maintenance for more than designed to provide specific guidance to defects observed during this check 20 years. Weekly examinations have mine operators in verifying that should be directed to a responsible consequently become an accepted approved equipment is in approved management official in a timely manner. element of routine equipment condition. Permissibility checklists are Paragraph (f) provides that all diesel- maintenance in the coal mining used to determine whether maintenance powered equipment must be examined industry. Diesel equipment and or repair is needed to bring the and tested weekly by a person qualified electrical equipment in the underground equipment back into approved under § 75.1915. Commenters generally coal mine environment present many of condition; manufacturers’ maintenance agreed with the concept of mandatory the same hazards. Paragraph (f) manuals complement these checklists equipment examination at regular therefore provides for weekly testing by providing mine operators with intervals, although several commenters and examination of diesel-powered specific instructions on how to conduct stated that only diesel equipment that equipment by a person qualified under the necessary maintenance or repair. was in use should be subject to required § 75.1915. MSHA intends that the approved examinations, advocating revision of the Several commenters stated that the checklists referred to in this paragraph rule to reflect that only equipment ‘‘in weekly examinations under paragraph for diesel-powered equipment under service’’ is subject to weekly (f) should be required only for approved part 7 will be similar to the examination. components. Neither the proposed rule permissibility checklists used for part Although MSHA understands the nor the final rule contains this 36-approved machines. basis for these commenters’ concerns, limitation. The proposal would have Commenters supported the use of MSHA has concluded that inserting the specified that the weekly examinations checklists for examinations and tests of term ‘‘in service’’ in the final rule could be conducted in accordance with diesel-powered equipment. One be misinterpreted by some mine approved checklists, which are lists commenter advocated that equipment operators to exclude equipment from developed, with the assistance of maintenance requirements be stated in the weekly examination requirement MSHA, by an equipment manufacturer general terms to accommodate new that the Agency does not intend to who is seeking MSHA approval. The equipment design and future exclude. For example, some operators proposal would have required fully technological improvements. MSHA may consider equipment to be out of assembled machine MSHA approval of believes that the use of equipment- service if it has not been operated for an all diesel-powered equipment, except specific permissibility/approval extended period, even though the for a ‘‘limited class’’ of light-duty checklists should achieve this result, equipment remains in the mine and nonpermissible equipment and and has included language in the final could be operated at any time. MSHA stationary unattended equipment. The rule that provides for the use of takes a very broad view of what final rule requires full machine approval equipment-specific manufacturers’ equipment is ‘‘in service,’’ regarding all only for permissible equipment; maintenance manuals in conjunction equipment not located in maintenance nonpermissible equipment must only be with the approved checklists in shops or surface storage areas as being provided with an approved engine. conducting necessary maintenance. ‘‘in service’’ and subject to weekly MSHA nonetheless believes that certain MSHA would also consider a mine examination and testing. MSHA has machine features, although not subject operator to be in compliance with this therefore not adopted the change to MSHA approval, should be inspected provision if operators developed their advocated by commenters. as part of the regular examination. own checklist formats based on and Although commenters supported the Paragraph (f)(1) requires that consistent with the manufacturer’s concept of regular examination and examinations and tests be conducted in maintenance manuals. testing of diesel-powered equipment, accordance with approved checklists Paragraph (f)(2) requires that persons there was no clear consensus on how and manufacturers’ maintenance performing weekly examinations and regularly equipment must be examined. manuals. These checklists are to be used tests of diesel-powered equipment A few commenters who raised the issue in conjunction with checklists and under this paragraph shall make a of the frequency of required equipment instructions included in manufacturers’ record when the equipment is not in examinations referred to maintenance maintenance manuals. approved or safe condition. The record schedules for diesel-powered equipment Commenters supported the use of must include the equipment that is not in place at their mines, with checklists for examinations and tests of in approved or safe condition, the defect examination intervals of one week, two diesel-powered equipment. One found, and the corrective action taken. weeks, or every 150 hours of equipment commenter advocated that maintenance This requirement has been adopted with operation. Other commenters stated that requirements be stated in general terms modification from the proposed rule. examination requirements for diesel- to accommodate new equipment design Under the proposed rule, a record of all powered equipment should be similar to and improved technology in the future. weekly equipment examinations would those for electrical equipment. The MSHA agrees with this comment, and have been required, and recordkeeping 55490 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations would not have been limited to those are also typically the types of equipment taken directly from the exhaust tailpipe examinations that disclosed a defect. that operate under load for extended provide a more accurate analysis of Under the final rule the recordkeeping periods of time, and consequently engine performance, and that samples burden has been reduced, consistent generate high levels of emissions drawn further away are influenced too with efforts to reduce the paperwork relative to other types of equipment. much by the variables of mine burdens placed on the regulated public. Regular testing of the exhaust emissions ventilation. MSHA agrees with the Commenters generally supported the of this equipment will help to ensure commenters who are concerned about concept of recording of examinations, that this equipment is properly these variables, not least among them and a number of commenters provided maintained. mine ventilation, that can dilute and information on the type of records of A number of commenters supplied distort emission samples that are taken equipment examination that were extensive information on emissions tests any distance away from the machine maintained at their mines. The record that had been developed and were being tailpipe. A significantly diluted sample required by this paragraph may be conducted at their mine, stating that may fail to indicate declining engine entered or recorded by the qualified such tests provided a valuable performance and may not trigger the person who performed the examination, indication of engines that were in need necessary corrective maintenance, or by a responsible mine official, such of maintenance. Some commenters who thereby exposing miners to unhealthy as a foreman or superintendent. supported the requirement for emissions levels of gaseous emissions. In response Paragraph (g) requires the mine testing in the proposed rule nonetheless to these concerns, MSHA has concluded operator to develop and implement recommended different testing intervals, that adopting the requirement in the written standard operating procedures ranging from two times per shift to once proposal for sampling of the undiluted for weekly testing and evaluation of a month. One commenter stated that an exhaust emissions is the best way to undiluted exhaust emissions from emissions test frequency of one time per ensure that the measurements will diesel-powered equipment used where month was appropriate for light-duty provide an accurate indication of permissible electrical equipment is equipment, while another commenter deteriorating engine performance. The required, and from heavy-duty diesel- recommended that emissions be tested final rule specifically requires the powered equipment as defined in each week by a person qualified under testing of undiluted exhaust emissions, § 75.1908(a), in use underground. The § 75.1915, and during each shift by the which means that emission samples paragraph also requires that specific equipment operator. The final rule required must be taken directly from the aspects of the testing and evaluation adopts the proposed requirement for tailpipe, not at any distance away. process be addressed in the procedures. weekly exhaust emissions testing, Paragraph (g) specifies that the person The final rule differs from the proposal consistent with the weekly performing the weekly testing and in that the proposal would have examinations and testing requirement of evaluation of exhaust emissions be required emission testing of all diesel- paragraph (f). A weekly testing interval trained to perform the task. The person powered equipment underground, while is of sufficient frequency to ensure that is not required to be qualified under the final rule narrows the requirement deteriorating engines are identified and § 75.1915, but does have to be for such testing to permissible and serviced before they create a potential adequately trained. This is a slight heavy-duty nonpermissible equipment. health hazard for miners in the area. modification from the proposed rule, The final rule also differs slightly from A number of commenters questioned which would have required the person the proposal in the type of training where the exhaust gas should be conducting emissions tests to required for the person who tests and sampled, some stating that they sampled demonstrate to a person qualified under evaluates the exhaust emissions. diluted exhaust gas either in the § 75.1915 the capability to perform the The proposed emission testing equipment operator’s compartment or at tests. MSHA has concluded that the requirements elicited the most a significant distance from the tailpipe, requirement in the proposed rule that controversy among commenters of all of such as 2 or 3 feet, and in one case 10 the training be conducted by a qualified the requirements in this section. Some feet away. Several commenters stated person is an unnecessary limitation. commenters acknowledged that that emissions test should be taken no Mine operators have the responsibility emission testing could be useful in more than 3 inches from the exhaust of ensuring that persons who perform monitoring the general operating pipe if a particulate probe is not such tasks are adequately instructed in condition of a diesel engine in provided, because greater distances will the activity. An important part of identifying diesel equipment that needs not provide meaningful results. One carrying out that responsibility is maintenance. These commenters commenter found that testing 2 feet making sure that the persons conducting nonetheless expressed serious concern away from the exhaust was very task training have the requisite that a standardized in-mine test for unreliable, and that the test results knowledge and experience. undiluted exhaust emissions had not yet would depend on which way the Accordingly, the final rule simply been devised, and until such a test was machine was facing. Another requires that persons who test and developed there would be no commenter believed that test procedures evaluate emissions receive the necessary consistency in test results. These used by some mine operators were task training. commenters recommended that intended to circumvent the goal of Paragraph (g)(1) requires that the emission test requirements not be testing, which is to gauge engine emissions testing procedures developed included in the final rule. In response performance and identify equipment by the mine operator include a method to these comments, the final rule limits that needs maintenance. Other for achieving a repeatable loaded engine required undiluted exhaust emission commenters stated that while samples operating condition for each type of testing to permissible equipment and to taken in the operator’s compartment or equipment, and is identical to what was heavy-duty nonpermissible equipment, away from the tailpipe can provide proposed. Most commenters stated that as defined under § 75.1908(a). In-mine valuable information, inconsistent a loaded engine test was not feasible for tests for diesel exhaust emissions have dilution prevents such samples from all types of equipment, specifically in fact been developed for these types of giving the most accurate indication of diesel machines equipped with equipment. Permissible equipment and engine condition. One commenter’s clutches. Several commenters heavy-duty nonpermissible equipment experience has shown that samples emphasized the difficulty of analyzing Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55491 the exhaust emissions of a loaded results. This provision has been adopted The final rule does not specify a engine without exposing miners to the unchanged from the proposed rule. particular way of making records, only danger of sudden equipment movement. Paragraph (g)(4), like the proposal, that they are to be recorded in a manner Other commenters stated that valid requires that the testing procedures that is not susceptible to alteration. A samples could not be obtained if the developed by the operator specify the detailed discussion on the issue of engine were not under load. In response concentration or changes in recordkeeping and electronic records to these commenters, and as discussed concentration of carbon monoxide that can be found under ‘‘Recordkeeping above, the final rule limits the will indicate a change in engine Requirements’’ in the General requirement for exhaust testing to performance. The paragraph also Discussion section of this preamble. permissible equipment and heavy-duty provides that concentrations of carbon nonpermissible equipment. These types monoxide shall not exceed 2500 parts The proposed rule would have of equipment are generally not equipped per million, which is the limit for required that the emission testing with clutched transmissions, and carbon monoxide established in the test procedures under paragraph (g) include therefore do not present the problems procedures for Category B engines in the designation of training of the identified by commenters that would subpart E of part 7 of the final rule. This individual who performs the tests. This exist with loaded engine tests for diesel aspect of the proposal received little requirement has not been adopted in the equipment with clutches. As mentioned comment, and has been adopted final rule. Instead, as discussed earlier, earlier, MSHA has developed loaded without change in the final rule. the rule imposes a performance-based engine test procedures for the Paragraph (g)(5) requires that the requirement that emissions testing and equipment subject to testing under the testing and evaluation procedures evaluation under this paragraph be final rule. address the maintenance of records that conducted by a person who has been Paragraph (g)(2) requires that the are necessary to track engine trained to perform the task. Mine procedures for weekly testing and performance. Commenters supported operators are consequently responsible evaluation of the undiluted exhaust this requirement and indicated that for ensuring that individuals who test emissions of diesel engines specify some mines are already maintaining and evaluate emissions receive the sampling and analytical methods that emissions records. The proposed rule training necessary to ensure their include calibration of instrumentation would have required that the competence. The ability of these capable of accurately detecting carbon procedures address ‘‘maintenance and persons to discharge their monoxide in the expected retention of necessary records’’. MSHA responsibilities is of much greater concentrations. Commenters indicated has added language to this paragraph to concern to MSHA than the training they that instruments are available and eliminate any ambiguity that might have receive to achieve it, and the final rule currently being used for accurate been created by the term ‘‘necessary reflects this emphasis. emissions testing. Several commenters records’’, by specifying the purpose of stated that testing should not be limited the records required under this Finally, several commenters to carbon monoxide, stating that they paragraph. MSHA has also eliminated recommended that this section include were currently testing for other gases, the reference in the proposed rule to the a requirement for regular examination of such as sulfur dioxide and the oxides of ‘‘retention’’ of records, and has chosen fire suppression systems. Examination nitrogen. Other commenters were of the instead to address retention of records of fire suppression systems is not opinion that carbon monoxide in a new paragraph (h) in this section, addressed here, but instead is dealt with concentrations were the best indicator discussed below. in § 75.1911 of the final rule, which of engine performance. Paragraphs (h)(1) and (h)(2) provide provides that equipment fire After consideration of all comments, that records required by paragraphs suppression systems be visually MSHA has concluded that sampling for (f)(2) and (g)(5) of this section must be inspected at least once each week, and carbon monoxide alone is sufficient for recorded in a secure book that is not be tested and maintained in accordance determining a change in engine susceptible to alteration, or recorded with the manufacturer’s recommended performance that may reflect a need for electronically in a computer system that inspection and maintenance program. maintenance. Data indicates that carbon is secure and not susceptible to Paragraph (i) provides that diesel- monoxide increases the most among the alteration. The records must be retained powered equipment must be maintained exhaust gases when an engine is poorly at a surface location for at least 1 year in accordance with this part beginning maintained, and is the best indicator and made available for inspection by an 12 months after the date of publication that an engine needs attention. See, authorized representative of the Report of the Bureau of Mines, U.S. Secretary and by miners’ of the final rule. This time is allowed for Department of the Interior, representatives. the development of a training and ‘‘Relationship of Underground Diesel The proposed rule did not address the qualification program under § 75.1915 Engine Maintenance to Emissions’’ availability of or access to records under and for the training of individuals who (December 1983). Sampling for nitrogen this section. One commenter perform work on diesel-powered dioxide is required by § 70.1900 of the recommended that records of weekly equipment. MSHA recognizes that the final rule. This will ensure that miners examination be accessible to miners’ resources available for training in are not exposed to contaminants at representatives. MSHA agrees with this particular geographical areas may be levels above the applicable limits. comment, and has revised the paragraph limited in some cases, and that Paragraph (g)(3) requires that the to provide miners’ representatives with competent trainers may be in significant procedures for emissions testing and access to records. The final rule also demand as mine operators prepare to evaluation include evaluation and requires such access for authorized comply with the requirements of the interpretation of the emission test representatives of the Secretary, to allow final rule. A one-year delayed effective results. Commenters generally MSHA inspectors to review records to date for the requirements of this section supported this requirement, and several verify that examinations and tests should afford the mining community commenters provided information on required under this section have been sufficient time to prepare for their evaluation and interpretation of conducted. compliance. 55492 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations

Section 75.1915 Training And alternative performance-oriented proposed, could provide an initial check Qualification Of Persons Working On standards that could be adapted to a of the quality of the program. Such a Diesel-Powered Equipment mine’s specific needs. One commenter review would not, however, ensure that This section of the final rule requires stated that a formal qualification scheme the program is successful in its a training and qualification program for was unnecessary, and that diesel implementation. Rather than expending persons who perform maintenance, maintenance training should be Agency resources on the review and repairs, examinations and tests on provided on an as-needed basis in the approval of diesel training programs, diesel-powered equipment, as required same manner as task training under part MSHA will direct those resources by § 75.1914. These critical tasks must 48. Another commenter maintained that toward verification of the effectiveness the benefits realized from a formal of training and qualification programs in be performed correctly for diesel qualification program would not justify their execution. Similarly, mine equipment to be maintained in safe the additional administrative burdens of operators and training providers can condition with acceptable levels of such a program. The Office of focus on the development and emissions. The final rule sets minimum, Management and Budget guidance administration of their training and performance-based requirements for comments directed MSHA to reexamine qualification programs rather than on training and qualification programs, and whether all of the information proposed procedures to gain MSHA approval. The requires successful completion of such to be submitted to MSHA for approval rulemaking record contains a number of a program for a person to be qualified of training and qualification programs well-designed diesel training plans to perform diesel maintenance, repairs, had practical utility and imposed the already in effect, demonstrating that the examinations, and tests. least burden on mine operators. mining community has the expertise The final rule differs from the Numerous other commenters, while needed to develop and implement proposed rule in several respects: it supporting the establishment of effective training programs. MSHA will does not require the training and procedures to qualify persons to closely monitor the effectiveness of the qualification programs to be approved perform work on diesel equipment, training programs implemented under by MSHA; it does not specify an interval were opposed to the proposed this section. for retraining; it clarifies that the rule requirement that MSHA approve Paragraph (a) also requires retraining does not require MSHA approval of training and qualification programs. when needed. The proposed rule would instructors who provide training; and it Many commenters indicated that very have required qualified persons to eliminates the use of the term ‘‘diesel good diesel equipment maintenance undergo retraining every 12 months. mechanic’’. training is already being provided by Some commenters to the proposed rule Paragraph (a) of this section of the mine operators as well as equipment opposed the establishment of a specific final rule provides that in order to be manufacturers, without MSHA review requirement for annual retraining, qualified to perform maintenance, or approval. In contrast, other stating that the mining industry needed repairs, examinations, and tests on commenters maintained that training performance-oriented standards that diesel-powered equipment, as required programs should meet the approval of could be adapted to mine-specific needs by § 75.1914, a person must complete a all interested parties, including MSHA for maintenance and training. Other training and qualification program and the representative of miners, to commenters stated that an annual which meets the requirements of the ensure that the training is adequate. The retraining requirement was necessary to section. A qualified person is required Diesel Advisory Committee had ensure that persons working on diesel- to be retrained when necessary to unanimously recommended that MSHA powered equipment maintained the maintain the ability to perform all require persons performing work on necessary knowledge and expertise over assigned maintenance, repairs, approved diesel equipment features be time. examinations, and tests. The final rule trained and tested for competency, and MSHA considers retraining to be an does not require, as would have the that the training and testing be approved important part of any training program. proposed rule, that MSHA approve by MSHA. The final rule, however, does not training and qualification programs After careful consideration of all of mandate retraining at specified developed under this section. these views and comments, MSHA has intervals. MSHA has concluded that Although there was virtually concluded that a basic structure for mine operators should tailor the universal agreement among commenters training and qualification programs for frequency of retraining to the conditions that some form of training was essential persons performing certain work on and practices at each mine, to ensure for persons working on diesel diesel equipment is necessary. Properly that all persons who work on diesel- equipment, commenters disagreed about trained persons are fundamental to powered equipment maintain the the need for a formal training and adequate maintenance of diesel- requisite level of expertise. Factors that qualification program and the necessity powered equipment. To meet this could affect the timing of retraining of MSHA review and approval of such objective, MSHA believes minimum include the frequency with which the programs. Some commenters were of the criteria for the training and qualification qualified person works on specific opinion that persons working on diesel of these persons are essential. Paragraph pieces of diesel equipment; newly equipment should be formally qualified, (a) therefore provides that to be developed techniques for performing and that diesel training programs for qualified to perform diesel equipment the required inspections and tests; and qualification should meet strict maintenance, repairs, examinations, and any modifications that may have been minimum standards and be subject to tests, as required by § 75.1914, a person made to the equipment since the last approval by MSHA. One commenter must successfully complete a training training. Frequent retraining may be stated that if strict training requirements and qualification program meeting the necessary at some mines to ensure that were not included in the standard, the requirements of the section. qualified persons retain sufficient skill necessary training would not be The proposal that MSHA review and and knowledge to perform their jobs provided. approve training and qualification effectively. At other mines where Other commenters opposed requiring programs is not adopted in the final conditions are less changeable, a formal program with specific rule. MSHA’s paper review of training retraining at greater intervals may be requirements, advocating as an and qualification programs, as appropriate. Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55493

Paragraph (a) of the final rule also provided to mine operators in a number person actually works on. However, the eliminates the term ‘‘diesel mechanic’’, of areas of the country. language of proposed paragraph (e)(3) was used in the proposal to identify Paragraph (b)(1) requires that training could be interpreted to require that the those persons qualified to perform courses be presented by a competent courses in the training program cover all maintenance and repairs of approved instructor, in contrast to the proposed pieces of diesel equipment in use at the features of diesel equipment. Many rule, which would have required that mine. commenters to the proposed rule courses for training and retraining be MSHA agrees with the commenters objected to the use of the term, stating conducted by either a qualified diesel that training should be tailored to the that it would result in the creation of a mechanic or ‘‘other instructor duties and responsibilities of the new job title or classification. MSHA determined by MSHA to be qualified.’’ individual qualified person. The did not intend to establish a new job Several commenters objected to this language in the final rule has therefore classification through the use of the aspect of the proposal, based on their been clarified to reflect this concept. A term ‘‘diesel mechanic’’, and concludes belief that the proposal required some qualified person is not required to be from the comments that its use would type of formal approval by MSHA before trained on a particular type of result in confusion. The term ‘‘diesel anyone other than a qualified person equipment, unless he or she performs mechanic’’ has therefore not been could conduct diesel training under this work on it. However, a person who is adopted in the final rule. section. A number of other commenters untrained on a particular type of Finally, the phrase ‘‘examinations and believed that such approval would only equipment is not a qualified person tests’’ has been included in paragraph add an unnecessary procedural hurdle with respect to that equipment, and may (a) of the final rule, reflecting that a to providing training. Contrary to the not perform maintenance, repairs, and person qualified under this section understanding of such commenters, tests required to be conducted by a would be authorized to conduct weekly MSHA did not intend by the proposal qualified person. Finally, MSHA examinations and tests of diesel- to approve training instructors. The anticipates that training will address powered equipment under § 75.1914(f), language of the final rule has been equipment by model and not by in addition to maintenance and repairs clarified to provide that courses may be individual machine, unless machines at of such equipment under § 75.1914(b). presented by a competent instructor. A the mine with the same model number Paragraph (b) provides a basic competent instructor under paragraph differ because of field changes or other structure for training and qualification (b)(1) could be a person qualified under special features. In such cases training § 75.1915, an instructor from a trade would need to take into account any programs, but is intended at the same school or college, or a person significant differences among machines. time to provide mine operators with experienced in diesel maintenance, While MSHA’s intent is to promote sufficient latitude in developing their such as a representative of an flexibility in the implementation of programs. MSHA believes that training equipment or engine manufacturer, or training and qualification programs, the and qualification programs will be most even the chief of maintenance at the final rule does specify minimum topics effective if they are tailored to specific mine, provided that the instructor has of instruction for these programs. mining conditions and equipment in the necessary technical expertise. Paragraphs (b)(3)(i) through (b)(3)(vii) of use at the mine, as well as to the skill Paragraph (b)(2) of the final rule the final rule set forth the specific areas levels and experience of the persons provides that the training and of instruction that must be covered by being trained. qualification program must be sufficient a training and qualification program. A number of commenters reported to prepare or update a person’s ability Commenters were generally in that they already have training and to perform all assigned tasks with agreement with the areas of instruction qualification programs in place at their respect to diesel-powered equipment required under the proposed rule, and mines, and provided descriptions and maintenance, repairs, examinations, and the language of the final rule is virtually documentation of these programs. Many tests. This paragraph incorporates the the same as what was proposed’’. of these programs utilize training at off- requirements of proposed paragraphs Paragraph (b)(3)(i) requires that site facilities, such as community (e)(2) and (e)(3), except that it training programs address the colleges and technical and trade substitutes the term ‘‘person’’ for the ‘‘requirements of subpart T of this part’’. schools. Commenters also indicated that term ‘‘diesel mechanic,’’ for the reasons Several commenters recommended that mining equipment manufacturers are stated in the discussion of paragraph (a) the phrase ‘‘as applicable’’ be added to typically called upon to provide of this section. Several commenters this requirement, to eliminate the need training. These programs generally were opposed to the requirement in for training to address requirements that include classroom training modules as proposed paragraph (e)(3) that courses may not be directly applicable at the well as hands-on in-mine training on in the training program address each specific mine. This recommendation is specific pieces of equipment. piece of diesel-powered equipment in not adopted in the final rule. MSHA Commenters stated that the duration of use at the mine, stating that this could believes that a person qualified under training programs could be from three be an unnecessary burden at mines that this section should have, at a minimum, days to eight weeks. The length of the operate a variety of types of diesel- basic familiarity with the scope of program was generally dependent upon powered equipment. These commenters subpart T and the diesel-powered how much diesel-powered equipment stated that if an individual never equipment safety standards. However, was used at the mine, as well as on the worked on certain pieces of equipment, MSHA does not intend that this aspect previous experience and skill level of requiring that individual to receive of the final rule require exhaustive the persons being trained. training on all equipment in use at the coverage of requirements that have no MSHA anticipates that local mine would be unnecessary. application to the mine in question. The community colleges and technical MSHA did not intend proposed well-designed, mine-specific training schools will assist mine operators in paragraph (e)(3) to require that each program contemplated by this section developing the training and qualified person be trained on all types will focus on the requirements that are qualification programs required under of diesel-powered equipment in use in the most relevant. For example, if a this section. Commenters indicated that the mine, only those pieces of diesel- mine does not store diesel fuel this type of assistance is already being powered equipment the qualified underground, qualified persons working 55494 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations at that mine would not be expected to including cleaning the equipment, be have required MSHA approval of have extensive knowledge of the addressed by the training program. The training programs and would have requirements of the standards governing phrase ‘‘including cleaning of the provided a framework for the exercise of fuel storage. Qualified persons should equipment’’ has been added in response district manager authority under nonetheless be aware that subpart T to comments emphasizing the proposed paragraph (e)(4)(ix). As contains provisions that address importance of frequent cleaning of discussed above, the final rule does not underground fuel storage. equipment to prevent the accumulation require MSHA approval of training Paragraph (b)(3)(ii) is virtually of combustible materials such as oil, programs. For these reasons, this identical to proposed paragraph grease and float coal dust and thereby proposed provision has not been (e)(4)(ii), and requires that the training reduce the risk of fire. This requirement adopted in the final rule. program address the use of power is consistent with and is intended to Paragraph (b)(4) requires the training package or machine checklists to reinforce compliance with § 75.400, and qualification program to include an conduct tests to ensure that diesel which has been revised in this final rule examination that requires equipment is in approved and safe to specifically prohibit accumulations of demonstration of the ability to perform condition, with acceptable emission combustible material on diesel-powered all assigned tasks with respect to diesel levels. Some commenters reported that equipment. equipment maintenance, repairs, maintenance of the permissibility Paragraph (b)(3)(vi) of this section examinations, and tests. There is no features of approved equipment was requires that the training program specific requirement that the often neglected, and emphasized the address safe fueling procedures and examination be in writing, although an importance of using only trained maintenance of the equipment’s fuel examination that effectively assesses personnel to evaluate these features. system. The importance of proper competence will most likely include a This requirement is intended to ensure refueling procedures is illustrated by the written test as well as a practical portion that training addresses the evaluation of analysis of the Canadian fire accident that allows a hands-on evaluation of a the equipment’s permissibility features. data in the discussion of § 75.1908. person’s abilities. Under the proposed Several commenters also questioned the These data show that the failure to rule, a minimum score of 80 percent meaning of the term ‘‘safe operating follow proper refueling procedures would have been required on any condition’’. The term has been changed resulted in several fires. written portion of a qualification to ‘‘safe condition’’ to conform to the Paragraph (b)(3)(vii), like the examination. Although some terminology in § 75.1914. MSHA proposal, requires that the training commenters supported the concept, intends that ‘‘safe condition’’ used in program address maintenance and MSHA has concluded that mandating a this paragraph means that the testing of the engine’s intake air system. minimum score is unnecessary when a equipment has been maintained in A number of commenters reported that written portion is not a required part of compliance with subpart T of this part failure to replace dirty intake air filters the examination. Further, such a and does not present a hazard to miners. was the most frequent cause of specific requirement is at odds with the Finally, the language of this paragraph excessive levels of smoke and carbon performance-oriented approach of this has been slightly revised to delete the monoxide from otherwise properly paragraph. The requirement for a term ‘‘appropriate’’ from the phrase ‘‘to adjusted engines. minimum score has therefore been conduct appropriate tests’’, because it is Proposed paragraph (e)(4)(viii) would omitted from the final rule. unnecessary and redundant. have required the training course to Paragraph (b)(5) requires that the Paragraph (b)(3)(iii) of this section is address tests and maintenance of the training and qualification program be in identical to proposed paragraph engine shutdown device. Because writing, and contain a description of the (e)(4)(iii), and requires that the training engine shutdown devices are in fact course content, materials, and teaching program cover the proper maintenance components of permissible equipment, methods to be used for initial training of approved features and the correct use training covering these devices will and retraining. The language of this of appropriate maintenance manuals, already be required by paragraphs (b)(3) paragraph is substantially the same as including machine adjustments, service, (ii) and (iii) of this section, discussed proposed paragraph (d)(1), except that and assembly. Paragraph (b)(3)(iii) is above. The language of proposed the word ‘‘approved’’ has been omitted. different from paragraph (b)(3)(ii) in that paragraph (e)(4)(viii) has therefore not As discussed above, the program will it addresses proper maintenance of been included in the final rule. not be subject to MSHA approval under equipment, while paragraph (b)(3)(ii) Proposed paragraph (e)(4)(ix) would the final rule. addresses tests to ensure permissibility. have given the district manager the The requirements of proposed Paragraph (b)(3)(iv) of the final rule authority to require the training program paragraphs (d)(2) and (d)(3) have not requires that training under this section to cover additional subjects necessary to been adopted in the final rule. address tests and maintenance of fire address specific health and safety needs. Specifically, proposed paragraph (d)(2) suppression system on diesel-powered This provision has not been adopted in would have required that the training equipment. The final rule uses the the final rule, which is designed to be and qualification program include a phrase ‘‘fire suppression system’’ rather more performance-oriented. As copy of the examination, to allow than ‘‘fire protection system,’’ which discussed above, the requirements of MSHA to review the examination as was used in the proposed rule, to this section are intended to result in the part of the approval process. Because conform the language of the final rule to development of training programs that the final rule does not require MSHA terminology that is more commonly in are tailored to the specific needs of each approval, and also because a written use. The purpose of this requirement is mine, including the equipment being examination is not required, a copy of to ensure that a qualified person has used and the skill levels of the persons the examination does not need to be sufficient familiarity with the elements receiving the training. Failure to address included as part of the program. of fire suppression systems used on mine-specific health and safety needs in Proposed paragraph (d)(3) would have diesel equipment. the training program may result in required that the program include a Paragraph (b)(3)(v) of this section MSHA determining that a mine operator description of the evaluation program to requires that fire and ignition sources is not in compliance with § 75.1915. be used for retraining to assess the and their control and elimination, Additionally, the proposed rule would knowledge, skills, and ability of the Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55495 qualified person. This requirement has revocation of individual qualifications. also pointed out that existing § 75.1403 not been included in the final rule, Because MSHA will not be formally gives MSHA the authority to regulate consistent with MSHA’s intention to reviewing and approving training and hazards arising from the transportation measure the effectiveness of training qualification programs, procedural of men and materials at underground and qualification programs by how well requirements for review and approval coal mines. These commenters believed diesel-powered equipment is being are unnecessary. Consequently, the that transportation hazards were already maintained at the mine, rather than by provisions proposed in § 75.1916 have adequately covered under § 75.1403, the adequacy of a written program. not been retained in the final rule, with and that additional regulation was Consequently, the final rule does not the exception of the requirements of therefore unnecessary. require a retraining evaluation program, proposed §§ 75.1916(i) and (j), as The existing authority to issue but MSHA expects that mine operators discussed above. safeguards under § 75.1403 does not will closely monitor the maintenance of make the requirements of this section Section 75.1916 Operation Of Diesel- diesel equipment at their mines, and unnecessary. Section 75.1403 authorizes Powered Equipment will ensure that qualified persons an MSHA inspector to issue a receive the necessary retraining. Section 75.1916 addresses speed ‘‘safeguard notice’’ when the inspector Paragraph (c) of this section requires limits and other traffic restriction on determines that a transportation hazard the mine operator to maintain a copy of roadways in underground coal mines exists at a mine and the hazard is not the training and qualification program where diesel-powered equipment is already addressed by a mandatory required by this section and a record of operated. This section also prohibits standard. The ‘‘safeguard notice’’, the names of all persons qualified under unnecessary idling of diesel-powered issued by an MSHA inspector to the the program. Paragraph (c)(1) requires equipment, as well as the operation of mine operator, identifies the nature of that the record of the names of qualified unattended diesel-powered equipment. the hazard and establishes requirements persons be made in a manner that is not The Diesel Advisory Committee based on the actual conditions or susceptible to alteration or recorded advocated MSHA regulation of practices that constitute a transportation electronically in a computer system that operating conditions of diesel-powered hazard at the particular mine. After the is secure and not susceptible to equipment, recommending proposal of a mine operator is given a reasonable time alteration. Under paragraph (c)(2), the rule that addressed speed limits, road to come into compliance with the training and qualification program and conditions, and operator control of requirements set forth in the safeguard the record of qualified persons must be vehicles. This section is intended to notice, the safeguard has the force and kept at a surface location of the mine ensure that diesel-powered equipment effect of a mandatory standard at the and made available for inspection by an underground is operated in a safe mine and can be enforced as such. authorized representative of the manner, and requires that operating Sections 75.1403–1 through 75.1403–11 Secretary and by miners’ speeds of diesel-powered equipment be contain criteria to guide inspectors in representatives. Paragraph (c) consistent with conditions in the mine, issuing safeguards, covering a wide incorporates, with certain revisions, the and that operators of diesel-powered range of potential transportation requirements originally proposed in equipment maintain full control of the hazards, such as clearance distances on §§ 75.1916 (i) and (j). Proposed equipment when it is in motion. belt conveyors and track haulage roads, §§ 75.1916 (i) and (j) would have Standardized traffic rules, including brakes on hoists and elevators, and required a list of current instructors also speed, signals, and warning signs, are safety gates for entrances to shafts and to be included in the training and required to be established at each mine slopes. qualification program and, in addition and followed. Safeguards are not a substitute for the to the names of all qualified persons, the The final rule recognizes that the safe mandatory requirements in § 75.1916. dates of qualification and the date of the operating speed for a particular piece of Although some of the topics covered in last retraining. MSHA has removed diesel-powered equipment depends this section, such as speed limits and these additional recordkeeping greatly on the specific mining roadway conditions, are included as requirements from the final rule, conditions and the type of equipment safeguard criteria in §§ 75.1403–1 consistent with the Agency’s intention being operated, and as a result the final through 75.1403–11, the criteria are not to gauge the adequacy of training and rule does not establish a universal speed enforceable unless and until they have retraining by how effectively diesel- limit for diesel-powered equipment been incorporated in a safeguard notice, powered equipment at the mine is operated in underground coal mines. after an MSHA inspector has maintained. The final rule does not Finally, idling of mobile diesel-powered determined that a hazard exists. In specify a particular method for equipment is prohibited, except as contrast, the requirements of this maintaining the record of qualified required in normal mining operations. section of the final rule apply at all persons, only that it is not susceptible Operation of unattended diesel-powered underground coal mines where diesel- to alteration. A detailed discussion of equipment is also prohibited under this powered equipment is used. In addition, recordkeeping and electronic records section. safeguard criteria are intended to be can be found under the heading Several commenters recommended tailored to the unique conditions and ‘‘Recordkeeping Requirements’’ in the elimination of the requirements of this practices at an individual mine, while General Discussion section of this section, stating that the proposed the requirements in this section are preamble. standards were too vague and could general in nature, although mine Finally, the proposed rule specified result in inconsistent enforcement. operators are given the flexibility to set procedures in § 75.1916 for MSHA’s Some of these commenters suggested traffic rules appropriate for the administration of training and reducing the proposed requirements of conditions at their mines. The final rule qualification programs. Among other this section to a single requirement that therefore does not reflect the opinion of things, the proposed rule set forth a the mine operator establish traffic rules, some commenters that the requirements process for MSHA review and approval appropriate for the specific mine under this section are unnecessary. of the training and qualification conditions at each mine, that address The requirements of this section program required under § 75.1915, and speed and operator control of specifically govern the manner and established procedures for the equipment. A number of commenters conditions under which diesel-powered 55496 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations equipment operates in underground Particularly large diesel-powered debris which could obstruct safe coal mines, and recognize that diesel- machines, which can take up nearly an operation. Operator inattention could powered equipment tends to be much entire mine entry, can present also constitute a violation of this larger and more powerful, and to have significant limitations in visibility for requirement if the inattention causes the ability to travel at much greater the equipment operator, whose line of unsafe operation of the equipment. speeds than electric-powered vision is below the machine frame. Paragraph (c) requires that equipment. Some types of diesel- Consequently, the equipment operator standardized traffic rules, including powered equipment used in has several large blind spots where speed limits, signals, and warning signs, underground coal mines, such as pickup other pieces of equipment and mine be established and followed at each trucks, are designed for use on personnel cannot be seen. Large haulage mine. Under this provision, the mine highways, and can travel at speeds in units operating in the same area as small operator must develop mine-wide traffic excess of 60 miles per hour (mph). In pieces of diesel-powered equipment can rules to address hazards arising from the comparison, a typical piece of mobile create particularly dangerous traffic operation of diesel-powered equipment, rubber-tired battery-powered equipment patterns. The proposed rule would have and ensure that mine employees are will have a top speed of less than 10 required roadways to be kept as free as aware of the rules and comply with mph. The potential traffic hazards are practicable from bottom irregularities or them. This is consistent with the therefore significantly greater in the other conditions that could affect suggestions of several commenters, who operation of diesel-powered equipment, control of the equipment. A number of supported simplifying the proposed rule and there is a resulting need for the commenters recommended elimination requirements by a single provision that minimum requirements set by the final of this paragraph, noting that the mine operators establish safe operating rule at mines where diesel-powered proposed rule would require rules appropriate for mine conditions. equipment is operated. standardized traffic rules and could be The requirements in the final rule are Paragraph (a) of this section adopts used to address concerns about roadway similar to those of the proposal, except the requirements of the proposal and conditions. Other commenters that the final rule provides that traffic provides that operating speeds of diesel- supported this proposed requirement, rules must be ‘‘followed’’, and does not powered equipment must be consistent citing the dangers that can result from adopt the proposed requirement that the with the type of equipment being poorly maintained roads. rules be ‘‘posted.’’ Mine operators have operated, the conditions of roadways, Although MSHA agrees that keeping the responsibility to take whatever steps grades, clearances, visibility, and other mine roads free from bottom are necessary to ensure that their traffic. Under this paragraph diesel- irregularities, debris, and wet or muddy employees are familiar with the mine’s powered equipment must be operated at conditions is important to safe operation traffic rules and follow them. Although all times at safe speeds, which in many of diesel-powered equipment, the posting of traffic rules can serve as a cases will be slower than the maximum requirements of paragraphs (a), (b), and means for mine operators to facilitate speed limit set in the mine-wide traffic (c) of this section of the final rule are compliance, it is not specifically rules established under paragraph (c). sufficient to address concerns about required under the final rule. Some commenters recommended that adverse road conditions. The Commenters who advocated a the rule specify a maximum speed limit, requirements of proposed paragraph (a), standardized maximum speed limit at such as 15 mph or 25 mph, that would which would have required roadway all underground coal mines, in response apply at all underground coal mines. maintenance, have therefore not been to proposed paragraph (b), renewed this These commenters stated that a adopted in the final rule. recommendation in their comments to standardized speed limit would Under the requirements of the final this paragraph. For the reasons promote compliance because the rules rule, vehicle speed must take into discussed above, the final rule does not would be the same at all mines account roadway conditions and other impose a universal speed limit. Some everywhere. A few of these commenters factors that affect safe equipment commenters suggested that simply recommended that equipment be fitted operation. Equipment operators are requiring the establishment of a mine- with gear reduction ratios that would required to maintain full control of their wide speed limit would eliminate the make it mechanically impossible for equipment, and traffic rules must be need for other traffic rules. MSHA equipment to be operated at speeds established and followed at each mine disagrees that restrictions on speed above the limit. Other commenters where diesel-powered equipment is alone will eliminate potential traffic opposed the establishment of a operated. hazards. The traffic rules required under universal speed limit for all mines, Paragraph (b) also adopts the this paragraph are intended to address stating that safe speeds were highly requirements of the proposal and other factors that affect safe operation of dependent on variable mining provides that equipment operators must diesel-powered equipment, such as conditions, and that a speed that is maintain control of mobile diesel- changes in mining conditions. prudent under one set of circumstances powered equipment while it is in Some commenters recommended that could be quite unsafe, even reckless, motion. Commenters generally MSHA provide criteria for mine under another. supported this requirement, which operators to use in establishing mine The requirements of this paragraph recognizes that there may be cases traffic rules, and that operators develop recognize that certain mine conditions where the roadway conditions, posted traffic plans, consistent with these and equipment characteristics must be operating speed, and traffic rules are criteria, that are reviewed and approved taken into account in determining the adequate but other factors interfere with by MSHA. The final rule does not adopt speed at which equipment can be safely the equipment operator’s ability to this recommendation. Although operated. Mine conditions have been a exercise full control over the equipment. MSHA’s review of a mine’s traffic rules contributing factor in many traffic For example, the rule would prohibit could provide a preliminary check on accidents. Adverse conditions that can the operator from carrying tools or the adequacy of the rules, such a review negatively impact equipment safety supplies in the operator’s compartment will not ensure that they have been include steep grades and slippery mine that interfere with the operator’s ability effectively implemented. The final rule surfaces, which decrease the to control the equipment. Additionally, reflects MSHA’s conclusion that both effectiveness of equipment brakes. equipment controls must be free of any mine operator and Agency resources are Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55497 better spent ensuring that traffic rules Amendment of Certain Part 75 stated that all necessary equipment are being followed. However, if an Standards safety features should be required as MSHA inspector determines that an MSHA’s part 75 sets forth mandatory part of the equipment approval process, operator’s traffic rules fail to adequately safety standards for each underground rather than as standards under part 75. The final rule retains MSHA’s address the mine’s traffic hazards, coal mine. The final rule amends longstanding approach of including in MSHA will require revision of the traffic existing §§ 75.342, 75.400, 75.1710 and part 75 general equipment safety rules. 75.1710–1 to extend their application to requirements such as methane monitors, This paragraph also requires that the diesel-powered equipment, requiring prohibitions against accumulation of traffic rules be followed. The language the installation of methane monitors on combustible materials, and cabs and in the proposed rule did not specifically certain types of diesel-powered canopies. The approach of requiring require that the rules be ‘‘followed,’’ equipment, prohibiting accumulation of general safety features in part 75 has although MSHA believes that most combustible materials on diesel- commenters understood that the rules been effective in protecting miners in powered equipment in active workings underground coal mines where electric- must be obeyed. To eliminate any of underground coal mines, and possible ambiguity or powered equipment is in use. As requiring diesel-powered face discussed below, the safety hazards misunderstanding, the rule has been equipment and shuttle cars to be clarified to specifically require that the addressed by the standards amended in equipped with substantially constructed the final rule are the same regardless of rules be complied with. cabs or canopies. Although these One commenter recommended that the equipment’s power source. existing standards specifically apply to By including these equipment safety mine operators be required to electric equipment, the hazards that investigate and file reports of mine requirements in part 75, mine operators these standards are designed to address will have the flexibility to improve traffic accidents in specific are independent of the power source of safety by making machine modifications circumstances, such as where an injury the equipment. based on specific conditions at each occurs or where a certain amount of The requirements of these four mine. For example, the selection of an damage is sustained. MSHA regulations mandatory safety standards have appropriate cab or canopy for a machine at part 50 already require mine applied to electric-powered equipment is dependent on mine height and entry operators to investigate and report for a number of years, and have been width. certain accidents to MSHA, as well as to extremely effective in protecting miners report to MSHA all occupational from the hazards of fires, explosions, Section 75.342 Methane Monitors. injuries and illnesses. MSHA has and roof falls. The Diesel Advisory Methane monitors automatically shut concluded that there is no compelling Committee recommended that MSHA down permissible electric mining reason why traffic accidents and injuries review its existing standards to equipment used to extract or load coal should be treated differently from other determine whether any existing safety when methane concentrations around types of mining accidents and injuries. requirements should be made applicable the equipment reach 2.0 percent. The final rule therefore does not adopt to diesel-powered equipment. Permissible diesel equipment can create this comment. In the preamble to the proposed rule, the same explosion hazard as Paragraph (d) prohibits idling of MSHA solicited comments on extending permissible electric equipment if mobile diesel-powered equipment, the applicability of certain listed operated in the presence of high except as required in normal mining standards to diesel-powered equipment. concentrations of methane. Also, under operations. This prohibition has been The standards listed in the proposal certain conditions, a diesel engine can added to the final rule in response to the included § 75.313 (now § 75.342, ingest methane from the mine concerns of some commenters, who methane monitors); § 75.400 atmosphere, resulting in uncontrolled observed that engines are excessively (accumulation of combustible acceleration of the diesel engine during idled most frequently in areas where it materials); § 75.400–2 (cleanup start up or operation, and produce an is impractical to increase air quantities. programs); §§ 75.523, 75.523–1, and ignition of methane in the area. This results in high levels of exhaust 75.523–2 (emergency deenergization of Methane monitors are recognized as a contaminants in these areas of the mine, self-propelled equipment); § 75.1107–1 critical link in the safety protections and increases the risks of miner (fire suppression devices); and designed to prevent mine explosions. overexposure. The final rule addresses §§ 75.1710 and 75.1710–1 (cabs and These monitors are normally mounted this problem by prohibiting unnecessary canopies on face equipment). MSHA on equipment that operates in the face engine idling. The intent of this also solicited comments on whether any area, providing the first warning that provision is that equipment parked at other part 75 standards that were not methane gas is accumulating in any location, including the loading listed should be made applicable to potentially dangerous quantities. point, will be shut down if it is not diesel-powered equipment. The final rule requires methane being used to do work. Commenters expressed general monitors on all diesel-powered face Paragraph (e) has been added to the support for extending requirements for cutting machines, continuous miners, final rule and prohibits the operation of methane monitors, brakes, and cabs and longwall face equipment, loading unattended diesel-powered equipment. canopies to diesel-powered equipment. machines, and other diesel-powered The proposal would have prohibited Some commenters expressed the view equipment used to extract or load coal portable limited class equipment from that all equipment safety features on in the working place. By applying the being operated unattended. This diesel-powered equipment should be methane monitor requirements of prohibition is consistent with the addressed under part 75. One existing § 75.342 to diesel-powered decision not to adopt the proposed commenter suggested that all equipment, miners working around requirements for stationary unattended requirements in part 75, particularly such equipment will be protected from equipment into the final rule, and is §§ 75.500 through 75.524 (applicable to fire and explosion hazards to the same explained in detail in the preamble battery- and electric-powered degree as miners working in areas where discussion of stationary unattended equipment), be applied to diesel- similar electric-powered equipment is equipment. powered equipment. Other commenters in use. 55498 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations

Section 75.400 Accumulation of all such equipment will be afforded the equivalent on diesel-powered Combustible Materials same protection that is currently equipment. The proposed rule also solicited The final rule requires that coal dust, provided for operators of electric comment on the applicability of existing loose coal, and other combustible equipment. Several standards identified in the § 75.1107–1, which requires fire materials be cleaned up and not proposal as possible subjects for suppression devices on certain attended permitted to accumulate in active revision have not been amended in this and unattended underground electric workings or on electric equipment final rule. Section 75.400–2, which equipment, to diesel-powered therein. The hazards of a mine fire or requires the establishment of a cleanup equipment. The fire hazards presented explosion in an underground coal mine program for the removal of by diesel-powered equipment are are similar for diesel-powered and accumulations prohibited under different from those on electric-powered electric-powered equipment. Coal dust § 75.400, has not been specifically equipment, due to the close proximity can produce a ready fuel source when amended to include the term ‘‘diesel- of large quantities of hydraulic oils and combined with the lubricating and powered equipment.’’ Existing § 75.400– fuels to the heated diesel engine hydraulic oils used in diesel-powered 2 does not make reference to a particular exhaust. Because effective fire equipment and can start a fire if it type of equipment, either diesel- or suppression systems are essential for the comes into contact with ignition sources electric-powered. The standard simply safe operation of diesel-powered on the equipment. As discussed requires that a program be established equipment, specific requirements for elsewhere, diesel-powered equipment for the cleanup and removal of fire suppression systems on diesel- that is not equipped with surface combustible materials. Therefore, powered equipment are addressed in temperature controls, such as outby § 75.400–2 already applies to diesel- the final rule at § 75.1911. equipment, may have engine and powered equipment and amending the Derivation Table exhaust surfaces above the ignition standard is unnecessary. temperature of coal dust. MSHA also solicited comments in the The following table lists final Accumulations of coal dust can also proposed rule on whether the standard section numbers and contribute to the propagation and requirements of §§ 75.523, 75.523–1 and corresponding section numbers of severity of mine fires and explosions. 75.523–2 should be applied to diesel- existing standards from which they are Because diesel equipment uses large powered equipment. These standards derived. quantities of diesel fuel and hydraulic protect equipment operators from fluid, once a fire starts it can quickly pinning and crushing injuries by New sections Existing sections spread due to the close availability of requiring self-propelled electric face Part 7ÐSubpart E ..... New, Parts 7, 32, 36 these fuel sources on a diesel machine. equipment to be equipped with panic A large fire can then ensue and spread 7.81 ...... New bars, which quickly deenergize the 7.82 ...... New, 36.2, 7.2 in the mine. By adding the term ‘‘diesel- tramming motors in the event of an 7.83 ...... New, 36.6, 7.3 powered’’ to § 75.400, MSHA intends emergency. The existing standards do 7.84 ...... New, 32.4(f), that the longstanding prohibition not require panic bars if the equipment 36.26(b), 36.44, against the accumulation of combustible is provided with a substantially 75.322 materials will now be explicitly applied constructed cab or canopy in 7.85 through 7.87 ...... New to diesel-powered equipment. accordance with § 75.1710–1, or if other 7.88 ...... New, 75.322 7.89 ...... New Sections 75.1710 and 75.1710–1—Cabs devices approved by MSHA are 7.90 ...... New, 36.11 and Canopies. installed to quickly deenergize the 7.91 and 7.92 ...... New tramming motor in the event of an Part 7ÐSubpart F ..... New, Parts 7, 18, 36 The final rule amends § 75.1710 to emergency. 7.95 ...... New require diesel-powered face equipment Because §§ 75.523, 75.523–1, and 7.96 ...... New, 36.2, 7.2 and shuttle cars to be equipped with 75.523–2 make specific reference to the 7.97 ...... New, 36.6, 7.3 substantially constructed cabs or interrelationship among electric motors, 7.98 ...... New, Part 36ÐSub- canopies to protect miners operating electrical control components, cabs, part B such equipment from roof falls and rib emergency parking brakes, and panic 7.99 ...... New and face rolls. The final rule also 7.100 and 7.101 ...... New, 36.46 bars, these standards cannot be readily 7.102 and 7.103 ...... New, 36.47 applies the installation requirements for adapted to diesel-powered equipment. 7.104 ...... New, 36.46 cabs and canopies in § 75.1710–1 to An MSHA study of diesel-powered face 7.105 ...... New, 7.6, 36.11 diesel-powered equipment. equipment accidents occurring from 7.106 ...... New, 7.8(b) Cabs and canopies provide very 1984 to 1995 found that this type of 7.107 ...... New, 7.52 effective protection to equipment equipment is manufactured with a 7.108 and 7.109 ...... New operators from the hazards of roof and substantially constructed operator’s Part 36 ...... Partly new, Part 31 rib falls and in collisions with the mine compartment which provides the same 36.1 ...... Partly new roof and ribs. Since 1972, approximately 36.2(e) ...... Partly new protection as a cab. The study also 36.2(f) ...... Partly new, 36.2(h) 250 miner fatalities have been prevented found no pinning or crushing accidents 36.6 (b)(2) through Partly new by cabs and canopies installed on of the type that would have been (b)(4). electric equipment. Some mine prevented by a panic bar on diesel 36.9(a) ...... Partly new operators have recognized the clear equipment. Since this type of diesel 36.20(b) ...... Partly new safety benefits of cabs and canopies and equipment will be evaluated under part 36.20(c) ...... New have installed these devices on the 36, the approval process can ensure that 36.21 ...... Partly new diesel-powered self-propelled face the protection features provided on 36.43(a) ...... Partly new 36.48(b) ...... Partly new equipment in their mines. By diesel equipment will provide at least 70.1900(a) ...... New, 75.100, 75.362 specifically extending the existing the same protection as that provided by 70.1900 (a)(1) New requirements in these sections to diesel- a panic bar on electrical equipment. The through (b)(3). powered self-propelled face equipment, final rule, therefore, does not amend 70.1900(c) ...... New, 75.322, including shuttle cars, the operators of § 75.523 to require panic bars or the 75.325(j) Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55499

New sections Existing sections New sections Existing sections Existing sections New sections

70.1900(d) ...... New, 75.363 75.1910(f) ...... New, 75.513, 36.29 ...... 75.1909 (b)(6) 70.1900 (d)(1) New 75.513±1 through (b)(8) and through (e). 75.1910 (g) and (h) ... New, 75.515 (f) 75.325 (f) through (h) New, Part 32 75.1910(i) ...... New, 75.514 36.33(b) ...... 75.1909(b)(5) 75.325 (i) and (j) ...... New, Part 32, 75.322 75.1910(j) ...... New 36.44 ...... 7.84 75.325(k) ...... New, Part 32, 75.371 75.1910(k) ...... New, 7.44(a)(1) 36.46 ...... 7.100, 7.101, 7.104 75.342 (b)(2) and (c) Partly new 75.1910(l) ...... New, 7.44 (d), (e), 36.47 ...... 7.102, 7.103 75.360(b)(7) ...... Partly new and (m) 75.100 ...... 70.1900(a) 75.371(r) ...... Partly new 75.1910(m) ...... New, 7.44(f) 75.301 ...... 75.1900, 75.371 (kk) through New 75.1910(n) ...... New, 7.44(h) 75.1903(a)(1) (oo). 75.1910(o) ...... New, 7.44(g) 75.322 ...... 7.84, 7.88, 75.371(pp) ...... New, 75.322 75.1911 (a) through New 70.1900(c), 75.325 75.400 ...... Partly new (k). (i) and (j), 75.1710 and Partly new 75.1911(l) ...... New, 75.380(f), 75.371(pp) 75.1710±1. 75.1107±3 through 75.325 (g) and (i) ...... 75.371(r) Part 75ÐSubpart T ... New, Part 32 75.1107±16 75.325(j) ...... 70.1900(c) 75.1900 ...... New, 75.301 75.1912(a)(1) ...... New, 75.1107±13 75.333(e) ...... 75.1903(a)(4) 75.1901(a) ...... New, 36.2(i) 75.1912 (a)(2) New 75.340 ...... 75.1903 (a)(1) and 75.1901(b) ...... New through (b). (a)(4) 75.1901(c) ...... New, 40 CFR 79 75.1912(c) ...... New, 75.1101±23 75.362 ...... 70.1900(a) 75.1902 ...... New 75.1912(d) ...... New, 75.1107±4 75.363 ...... 70.1900(d) 75.1903(a)(1) ...... New, 75.301, 75.340 75.1912 (e) through New 75.371 ...... 75.325(k) 75.1903 (a)(2) and New (g). 75.380(d) ...... 75.1916(a) (a)(3). 75.1912(h) ...... New, 75.1107±16 75.380(f) ...... 75.1911(l) 75.1903(a)(4) ...... New, 75.333(e), 75.513 and 75.513±1 75.1910(f) 75.340 75.1912(i) ...... New 75.1912(j) ...... New, 75.1101±23 75.514 ...... 75.1910(i) 75.1903 (a)(5) New 75.515 ...... 75.1910 (g) and (h) 75.1913 ...... New through (a)(7). 75.518 and 75.518±1 75.1910(a) 75.1914 ...... New 75.1903(b)(1) ...... New, 75.1100±2(f) 75.523±3 ...... 75.1909(c) 75.1915 ...... New 75.1903 (b)(2) New 75.523±3(b)(2) ...... 75.1909(c)(1) 75.1916(a) ...... New, 75.380(d), through (d)(6). 75.523±3(b)(3) ...... 75.1909(c)(2) 75.1403 75.1904 ...... New 75.523±3(b)(4) ...... 75.1909(c)(3) 75.1916 (b) through New 75.1905 ...... New 75.523±3(b)(5) ...... 75.1909(c)(4) (e). 75.1906 (a) through New 75.523±3(c) ...... 75.1909(c)(5) (f). 75.523±3(d) ...... 75.1909(d) 75.1906(g) ...... New, 75.1107±3 Distribution Table 75.523±3(e) ...... 75.1909(e) through 75.1107±6, 75.1000±3 ...... 75.1906(j) 75.1107±8 through The following table lists section 75.1100±2(f) ...... 75.1903(b)(1) 75.1107±16 numbers of existing standards which 75.1101±23 ...... 75.1912 (c) and (j) 75.1906 (h) and (i) .... New contain provisions that were used in the 75.1107±3 through 75.1911(l) 75.1906(j) ...... New, 75.1000±3 development of the listed final 75.1107±16. 75.1906 (k) and (l) .... New standards. 75.1107±3 through 75.1906(g) 75.1907 ...... New 75.1107±6 and 75.1908 ...... New Existing sections New sections 75.1107±8 through 75.1909 (a)(1) New 75.1107±16. through (a)(3)(i). 75.1107±4 ...... 75.1912(d) 75.1909 (a)(3)(ii) ...... New, 36.27(a)(1) 7.2 ...... 7.82, 7.96 7.3 ...... 7.83, 7.97 75.1107±13 ...... 75.1912(a)(1) 75.1909 (a)(3)(iii) New 75.1107±16 ...... 75.1912(h) through (a)(3)(ix). 7.6 ...... 7.105 7.8(b) ...... 7.106 75.1403 ...... 75.1916(a) 75.1909 (a)(3)(x) ...... New, 36.27(c) 75.1404 and 75.1909(c) 75.1909 (a)(3)(xi) New 7.44(a)(1) ...... 75.1910(k) 7.44 (d) and (e) ...... 75.1910(l) 75.1404±1. through (b)(3). 40 CFR 79 ...... 75.1901(c) 75.1909(b)(4) ...... New, 36.28 7.44(f) ...... 75.1910(m) 75.1909(b)(5) ...... New, 36.33(b) 7.44(g) ...... 75.1910(o) 75.1909 (b)(6) New, 36.29 7.44(h) ...... 75.1910(n) III. Paperwork Reduction Act through (b)(8). 7.44(m) ...... 75.1910(l) The information collection 75.1909(c) ...... New, 75.523±3, 7.44(a)(1) ...... 75.1910(k) 7.52 ...... 7.107 requirements contained in this rule have 75.1404, 75.1404± been submitted to the Office of 1 Part 31 ...... Part 36 75.1909(c)(1) ...... New, 75.523±3(b)(2) Part 32 ...... Part 7ÐSubpart E, Management and Budget (OMB) for 75.1909(c)(2) ...... New, 75.523±3(b)(3) 75.325 (f) through review under the Paperwork Reduction 75.1909(c)(3) ...... New, 75.523±3(b)(4) (k), and Part 75Ð Act of 1995 (44 U.S.C. 3501–3520), as 75.1909(c)(4) ...... New, 75.523±3(b)(5) Subpart T implemented by OMB in regulations at 75.1909(c)(5) ...... New, 75.523±3(c) 32.4(f) ...... 7.84 5 CFR 1320. No person may be required 75.1909(c)(6) ...... New Part 36ÐSubpart B ... 7.98 to respond to, or may be subjected to a 75.1909(d) ...... New, 75.523±3(d) 36.2 ...... 7.82, 7.96 penalty for failure to comply with, these 75.1909(e) ...... New, 75.523±3(e) 36.2(h) ...... 36.2(f) information collection requirements 36.2(i) ...... 75.1901(a) 75.1909(f) ...... New, 36.29 until they have been approved by OMB 75.1909 (g) through New 36.6 ...... 7.83, 7.97 (j). 36.11 ...... 7.90, 7.105 and MSHA has displayed the assigned 75.1910(a) ...... New, 75.518, 36.26(b) ...... 7.84 OMB control number. The OMB control 75.518±1 36.27(a)(1) ...... 75.1909(a)(3)(ii) number, when assigned, will be 75.1910 (b) through New 36.27(c) ...... 75.1909(a)(3)(x) announced by separate notice in the (e). 36.28 ...... 75.1909(b)(4) Federal Register. 55500 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations

The final rule addresses comments reevaluated MSHA’s estimate of the Tables 1 through 4 show the submitted to OMB and MSHA on the information collection burden, distribution of information collection collection of information requirements including the validity of the underlying burden hours imposed by the in the proposed rule in the section-by- methodology and assumptions; and requirements of the final rule. Tables 1 section discussions. In revising the minimized the information collection and 2 pertain to manufacturers, Table 3 requirements from those that appeared burden on respondents to the extent pertains to small mine operators, and in the proposed rule, MSHA has possible. This final rule also provides Table 4 pertains to large mine operators. evaluated the necessity and usefulness for the use of electronic storage and of the collection of information; maintenance of records.

TABLE 1.ÐESTIMATED ANNUAL NEW BURDEN RELATED TO MANUFACTURERS

Number of Capital Operating Number of Hours per Number of responses costs and mainte- Detail respondents response responses per re- annualized nance costs Total hours spondent (rounded) (rounded)

Part 7ÐSubpart E New Eng. (Perm.) 1 ...... 1.5 43 1.5 1 $0 $0 65 New Eng. (Perm.) 2 ...... 1.5 0.5 1.5 1 0 75 1 New Eng. (Nonperm.) 3 ...... 2.5 34 2.5 1 0 0 85 New Eng. (Nonperm.) 4 ...... 2.5 0.5 2.5 1 0 100 1 Existing Eng. (Nonperm.) 5 ...... 16 5 16 1 425 0 80 New Eng. (Nonperm.) 6 ...... 1 34.5 1 1 0 2,600 35 Existing Eng. (Nonperm.) 7 ...... 1 34.5 1 1 200 0 35 7.90 ...... 148 0.1667 148 1 0 450 24 Part 7ÐSubpart F New Pow. Pack. (Perm.) 8 ...... 1.5 43 1.5 1 0 0 65 Existing Pow. Pack. (Perm.) 9 ...... 33 12 33 1 2,100 0 396 7.105 ...... 20 0.1667 20 1 0 75 3

Total Increases ...... 2,725 3,300 790 1 New diesel-powered engine models used in permissible equipment will require a maximum fuel:air ratio test and a gaseous ventilation rate test under part 7, subpart E, instead of under existing part 36. Burden hours are shifted from existing part 36 to part 7, subpart E. The annual es- timated application costs of $4,850 are currently being incurred by manufacturers under part 36. Under the final rule, such costs will continue to be incurred under part 7, subpart E, instead of under part 36. There are no new compliance costs. 2 New diesel-powered engine models used in permissible equipment that would have received part 36 approval will require a particulate index test. 3 New diesel-powered engine models used in nonpermissible equipment that would have received part 32 approval will require a maximum fuel air ratio test and a gaseous ventilation rate test under part 7, subpart E, instead of under part 32. As a result of this rule, part 32 is deleted and burden hours related to the tests on such engine models are shifted from deleted part 32 to part 7, subpart E. The annual estimated application costs of $6,375 are currently being incurred by manufacturers under part 32. Under the final rule, such costs will continue to be incurred under part 7, subpart E, instead of under part 32. There are no new compliance costs. 4 New diesel-powered engine models used in nonpermissible equipment that would have received part 32 approval will require a particulate index test. 5 Existing diesel-powered engine models used in nonpermissible equipment that have part 32 approval will require a one time particulate index test. 6 New diesel-powered engine models used in nonpermissible equipment that would not have received part 32 approval will require a maximum fuel air ratio test, a gaseous ventilation rate test, and a particulate index test. 7 Existing diesel-powered engine models used in nonpermissible equipment that do not have part 32 approval will require a one time maximum fuel air ratio test, a gaseous ventilation rate test, and a particulate index test. 8 New diesel-power package models used in permissible equipment will require approval under part 7, subpart F, instead of under part 36. Bur- den hours related to such approvals are shifted from part 36 to part 7, subpart F. The annual estimated application costs of $4,850 are currently being incurred by manufacturers under part 36. Under the final rule, such costs will continue to be incurred under part 7, subpart F, instead of under part 36. There are no new compliance costs. 9 Diesel-power package models used in permissible equipment and previously approved under part 36 could be reapproved and used to com- ply with the requirement for a diesel power package pursuant to part 7, subpart F.

TABLE 2.ÐESTIMATED ANNUAL DECREASE IN BURDEN RELATED TO MANUFACTURERS 1

Number of Number of Hours per re- Number of responses Capital Operation Detail respondents sponse responses per re- costs and mainte- Total hours spondent annualized nance costs

Part 36 New Eng. (Perm.) 2 ...... 1.5 43 1.5 1 $0 $0 65 New Pow. Pack. (Perm.) 3 ...... 1.5 43 1.5 1 0 0 65 Part 32 New Eng. (Nonperm.) 4 ...... 2.95 34.5 2.95 1 0 0 102

Total Decreases ...... 232 1 Burden hours in this chart were developed and approved under the Paperwork Reduction Act of 1980 (PRA 80). PRA 80 did not require costs to be reported with burden hours. Thus no compliance costs are noted in this table. 2 New diesel-powered engine models used in permissible equipment will be approved under part 7, subpart E, instead of part 36. 3 Diesel-power package models used in permissible equipment will be approved under part 7, subpart F, instead of part 36. Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55501

4 New diesel-powered engine models used in nonpermissible equipment will be approved under part 7, subpart E, instead of part 32.

TABLE 3.Ð ESTIMATED ANNUAL NEW BURDEN FOR SMALL UNDERGROUND COAL OPERATORS THAT USE DIESEL- POWERED EQUIPMENT 1

Number of Number of Capital Operation Detail respond- Hours per Number of responses costs and mainte- Total hours 2 response responses per re- annualized nance costs ents spondent (rounded) (rounded)

§ 75.363 ...... 10 0.10 100 10 $2,100 $3,800 10 § 75.370 ...... 15 0.1667 15 1 0 100 3 § 75.1901(a) ...... 8 0.05 160 20 0 100 8 § 75.1904(b)(4)(i) ...... 15 0.0333 20 1 <25 0 1 § 75.1911 (i)&(j) 3 ...... 15 0.3333 212 14 0 1,835 71 § 75.1911 (i)&(j) 4 ...... 15 1.0833 11 <1 0 915 12 § 75.1912 (h)&(i) 5 ...... 15 0.5833 20 1 0 300 12 § 75.1912 (h)&(i) 6 ...... 15 1.0833 2 <1 0 100 2 § 75.1914 (f)(1)&(h) ...... 15 7 1.1857 500 33 0 15,400 593 § 75.1914 (f)(2)&(h) ...... 15 0.0833 500 33 0 1,100 42 § 75.1914(g)&(h) 8 ...... 15 2 30 2 150 0 60 § 75.1914 (g)&(h) 9 ...... 1 2 1 1 0 50 2 § 75.1914 (g)(5)&(h) ...... 15 0.25 1,480 98 3,150 16,650 370 § 75.1915(a) ...... 15 5 30 2 400 0 150 § 75.1915 (b)(5)&(c) 8 ...... 15 10 15 1 400 0 150 § 75.1915 (b)(5)&(c) 9 ...... 1 3 1 1 0 125 3

Total ...... 6,225 40,475 1,489 1 Small mines are those that employ 19 or fewer people. 2 Respondents are the number of small mines. 3 Section 75.1911(j) requires a record of § 75.1911(i) weekly exams which find defects. 4 Section 75.1911(j) requires a record of § 75.1911(i) manufacturer recommended exams which find defects. 5 Section 75.1912(i) requires a record of § 75.1912(h) weekly exams which find defects. 6 Section 75.1912(i) requires a record of § 75.1912(h) manufacturer recommended exams which find defects. 7 Represents a weighted average of hours based upon different exam hours for different types of equipment. 8 Reflects burden hours that will occur in the first year of implementation of the provision. 9 Reflects burden hours that will occur annually, after the first year of implementation of the provision.

TABLE 4.ÐESTIMATED ANNUAL NEW BURDEN FOR LARGE UNDERGROUND COAL OPERATORS THAT USE DIESEL- POWERED EQUIPMENT 1

Number of Capital Operating Detail Number of Hours per Number of responses costs and mainte- Total hours respondent 2 responses responses per re- annualized nance costs spondent (rounded) (rounded)

§ 75.363 ...... 100 0.1834 1,000 10 $20,950 $40,825 184 § 75.370 ...... 158 0.3333 158 1 0 1,975 52 § 75.1901(a) ...... 79 0.05 1,975 25 0 1,000 99 § 75.1904(b)(4)(i) ...... 158 0.0333 494 3 250 0 16 § 75.1911 (i) & (j) 3 ...... 158 0.3333 14,810 94 0 128,340 4,936 § 75.1911 (i) & (j) 4 ...... 158 1.0833 592 4 0 51,335 641 § 75.1912 (h) & (i) 5 ...... 158 0.5833 100 <1 0 1,525 58 § 75.1912 (h) & (i) 6 ...... 158 1.0833 4 <1 0 350 5 § 75.1914 (f)(1) & (h) ...... 158 7 0.6234 35,975 227 0 583,150 22,428 § 75.1914 (f)(2) & (h) ...... 158 0.0833 35,975 227 0 77,925 2,997 § 75.1914 (g) & (h) 8 ...... 158 2 711 4 3,725 0 1,422 § 75.1914 (g) & (h) 9 ...... 5 2 22.5 4 0 1,700 45 § 75.1914 (g)(5) & (h) ...... 158 0.25 52,350 331 33,100 460,225 13,088 § 75.1915(a) ...... 158 5 1,264 8 0 236,000 6,320 § 75.1915 (b)(5) & (c) 8 ...... 158 16 158 1 6,600 0 2,528 § 75.1915 (b)(5) & (c) 9 ...... 5 16 5 1 0 3,000 80

Total ...... 64,625 1,587,350 54,899

1 Large mines are those that employ 20 or more people. 2 Respondents are the number of large mines. 3 Section 75.1911(j) requires a record of § 75.1911(i) weekly exams which find defects. 4 Section 75.1911(j) requires a record of § 75.1911(i) manufacturer recommended exams which find defects. 5 Section 75.1912(i) requires a record of § 75. 1912(h) weekly exams which find defects. 6 Section 75.1912(i) requires a record of § 75. 1912(h) manufacturer recommended exams which find defects. 7 Represents a weighted average of hours based upon different exam hours for different types of equipment. 8 Reflects burden hours that will occur in the first year of implementation of the provision. 9 Reflects burden hours that will occur annually, after the first year of implementation of the provision. 55502 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations

IV. Executive Order 12866 and equipment used in underground coal underground mine environment are Regulatory Flexibility Analysis mines. Compliance with the rule will properly controlled, the final rule Under E.O. 12866 [58 FR 51735, minimize fire, explosion, fuel handling, includes requirements for the October 4, 1993] the Agency must and fuel storage hazards. The health underground storage, transportation, determine whether the regulatory action hazards of diesel engine exhaust are and dispensing of diesel fuel. Design, is ‘‘significant’’ and subject to OMB addressed by design, performance, and tank capacity, and dispensing review. maintenance standards for diesel requirements are set for diesel fuel E.O. 12866 defines ‘‘significant engines. Other safety hazards associated storage, as well as safety precautions regulatory action’’ as one that is likely with the use of diesel-powered and construction requirements for to result in a rule that may: (1) Have an equipment in underground coal mines underground storage facilities and areas, annual effect on the economy of $100 are also addressed. including automatic fire suppression million or more or adversely affect in a The final rule includes tests and systems. These provisions will reduce material way the economy, a sector of specifications for MSHA approval of the risk of fires involving diesel fuel. the economy, productivity, competition, diesel engines. Clean operating engines The final rule also extends several jobs, the environment, public health or will reduce miners’ exposure to harmful longstanding safety requirements for safety, or state, local, or tribal emissions in the confined underground electric equipment to diesel-powered governments or communities; (2) create mine environment. The final rule sets equipment. The final rule requires a serious inconsistency or otherwise test procedures and limits on the certain diesel equipment to be installed interfere with an action taken or concentrations of carbon monoxide and with methane monitors, providing planned by another agency; (3) oxides of nitrogen, and establishes the miners with critical protection against materially alter the budgetary impact of quantity of ventilating air necessary to methane explosions. The final rule also entitlements, grants, user fees, or loan dilute these exhaust contaminants to requires cabs and canopies to be programs or the right and obligations of safe levels. The rule also contains tests installed on certain diesel-powered recipients thereof; or (4) raise novel and specifications for approval of diesel equipment, protecting miners from the legal or policy issues arising out of legal engine components, to ensure that dangers of roof and rib falls in the mandates, the President’s priorities, or diesel engines are fire and explosion- underground mine environment. proof. the principles set forth in the Executive Cost of Compliance Order. The final rule also requires diesel- OMB determined that this rule for powered equipment to be equipped The compliance costs associated with diesel-powered equipment in with certain safety features. These safety the standards directly impact two underground coal mines is a features will result in reduced fire industry groups: manufacturers of ‘‘significant regulatory action’’ because hazards and lower the risk of accidents diesel-powered mining equipment and MSHA’s diesel particulate rulemaking involving diesel-powered equipment. operators of underground coal mines. for all mines has been designated For example, the final rule requires Part 7, subparts E and F relate to ‘‘significant’’ by the Agency. Although diesel-powered equipment to have basic manufacturer costs and parts 70 and 75 the diesel particulate rulemaking is safety features, such as brakes and relate to operator costs. The total separate and distinct from this final lights; fire protection features, including compliance costs of the rule are rule, OMB concluded that there is a fuel, hydraulic, and electrical system estimated to be about $10.35 million per sufficient enough relationship with this protections; and properly designed, year, of which mine operators will incur final rule to warrant its designation as installed, and maintained fire about $10.3 million per year and significant. As such, MSHA has suppression systems. In addition, the manufacturers will incur about $50,000 submitted this final rule to OMB for rule extends to diesel-powered per year. review. equipment safety measures that already The per-year cost of $10.3 million for As required by E.O. 12866, the apply to electric-powered equipment mine operators consists of $4.9 million Agency determined costs and benefits that are proven to protect miners from of annualized cost plus $5.4 million of associated with this final rule and has cave-ins, such as cabs and canopies, and annual costs. Of the $10.3 million, large prepared a Final Regulatory Impact from explosions, such as methane mine operators will incur about $10.1 Analysis (RIA) and a Final Regulatory monitors. million, which consists of $4.8 million Flexibility Analysis (RFA). The RFA The final rule provides for a of annualized costs and $5.3 million of assesses benefits and costs of, and systematic approach to the clean and annual costs. Of the $10.3 million, small potentially effective and reasonably safe operation of diesel-powered mine operators will incur about feasible alternatives to, the planned equipment. To accomplish this, the final $210,800, which consists of $92,300 of regulatory action. The RIA and RFA are rule sets standards for ventilation of annualized costs and $118,500 of available electronically and on request diesel-powered equipment, and for annual costs. The per-year compliance from MSHA through the address listed routine sampling of toxic exhaust gases costs for large and small mine operators in the contact section at the beginning in the workplace, and requires the use is shown by section in Table 5. of this document. It is summarized of low sulfur diesel fuel to minimize Manufacturers will incur costs of below. emissions. It also requires that approximately $50,450 per year. The maintenance be performed by trained $50,450 consists of $15,900 of Benefits personnel to keep diesel equipment in annualized costs and $34,550 of annual The final rule establishes proper operating condition. costs. The per-year compliance costs for comprehensive and integrated To ensure that the hazards associated manufacturers is shown by section in requirements governing diesel-powered with diesel fuel usage in the Table 6. Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55503

TABLE 5.ÐUNDERGROUND COAL MINE COMPLIANCE COSTS FOR DIESEL EQUIPMENT [Dollars × 1,000]

Large and small mines Large mines Small mines Standard (A) total (B) (C) (D) total (E) (F) (G) total (H) (I) [col. B+C] annualized annual [col. E+F] annualized annual [Col. H+I] annualized annual

70.1900 ...... ($59.7) $80.9 ($140.6) ($77.7) $75.8 ($153.5) $18.0 $5.1 $12.9 75.325 ...... 589.0 0 589.0 589.0 0 589.0 0 0 0 75.1902 ...... 39.7 39.7 0 37.6 37.6 0 2.1 2.1 0 75.1903 ...... 68.5 51.5 17.0 58.2 44.7 13.5 10.3 6.8 3.5 75.1904 ...... 32.7 32.7 0 31.2 31.2 0 1.5 1.5 0 75.1905 ...... 2.4 2.4 0 2.3 2.3 0 0.1 0.1 0 75.1906 ...... 251.8 173.5 78.3 244.7 168.8 75.9 7.1 4.7 2.4 75.1907 ...... 1,610.3 1,596.6 13.7 1,589.6 1,576.4 13.2 20.7 20.2 0.5 75.1909 ...... 3,028.0 2,532.9 495.1 2,971.2 2,487.6 483.6 56.8 45.3 11.5 75.1910 ...... 117.4 117.4 0 116.1 116.1 0 1.3 1.3 0 75.1911 ...... 1,221.3 0 1,221.3 1,203.2 0 1,203.2 18.1 0 18.1 75.1912 ...... 20.0 0 20.0 16.5 0 16.5 3.5 0 3.5 75.1913 ...... 9.5 9.5 0 9.4 9.4 0 0.1 0.1 0 75.1914 ...... 2,769.3 40.1 2,729.2 2,700.0 36.8 2,663.2 69.3 3.3 66.0 75.1915 ...... 573.9 155.4 418.5 572.3 153.9 418.4 1.6 1.5 0.1 75.1916 ...... 8.7 8.7 0 8.4 8.4 0 0.3 0.3 0

Total ...... 10,282.8 4,841.3 5,441.5 10,072.0 4,749.0 5,323.0 210.8 92.3 118.5

TABLE 6.ÐESTIMATED MANUFACTURERS COMPLIANCE COSTS ASSOCIATED WITH THE REGULATIONS FOR DIESEL- POWERED EQUIPMENT IN UNDERGROUND COAL MINES

Manufacturers costs Standard (A) total (B) [col. B+C] annualized (c) annual

Part 7ÐSubpart E ...... $42,650 $12,200 $30,450 Part 7ÐSubpart F ...... 7,800 3,700 4,100

Total Part 7 ...... 50,450 15,900 34,550

Regulatory Flexibility Certification U.S.C. § 801 et seq.) (SBREFA), because requirements specifically set forth in a The Regulatory Flexibility Act it is not likely to result in: (1) an annual statute. For purposes of the Unfunded requires that agencies developing effect on the economy of $100 million Mandates Reform Act of 1995, as well regulatory standards evaluate and, or more; (2) a major increase in costs or as E.O. 12875, this rule does not include where possible, include compliance prices for consumers, individual any federal mandate that may result in alternatives that minimize any impact industries, federal, state, or local increased expenditures by either State, that would adversely affect small government agencies, or geographic local, and tribal governments, or businesses. The use of diesel-powered regions; or (3) significant adverse effects increased expenditures by the private equipment presents similar health and on competition, employment, sector of more than $100 million on the safety hazards in both large and small investment, productivity, innovation, or private sector. on the ability of United States-based mining operations, and small mines will VI. Electronic Availability of enterprises to compete with foreign benefit from the requirements in the Rulemaking Documents final rule. MSHA, therefore, has not enterprises in domestic and export exempted small mines from any markets. Electronic copies of the preamble and provision of the final rule. The Agency will send copies of the final rule, and the Regulatory Impact Regulatory relief is not warranted final rule, preamble, and regulatory Analysis and Regulatory Flexibility because the final rule will not impose a flexibility analysis to the President of Analysis are available on the Internet at substantial cost increase for small the Senate, the Speaker of the House, the U.S. Department of Labor, Mine mines. MSHA has determined that these and the General Counsel of the General Safety and Health Administration’s provisions will not have a significantly Accounting Office. World Wide Web home page at http:// www.msha.gov. Instructions for adverse impact upon a substantial V. Unfunded Mandates Reform Act of number of small entities. accessing regulatory documents and 1995 information are as follows: Small Business Regulatory Enforcement Title II of the Unfunded Mandates From MSHA’s home page select the Fairness Act Reform Act of 1995, Pub.L. 104–4, menu item entitled ‘‘Statutory and MSHA has determined that this final requires each federal agency to assess Regulatory Information.’’ This will rule is not a ‘‘major rule’’ requiring prior the effects of federal regulatory actions direct the search to the Statutory and approval by the Congress and the on state, local, and tribal governments Regulatory menu page. Then select the President under the Small Business and the private sector, other than to the menu item entitled ‘‘Federal Register Regulatory Enforcement Act of 1996 (5 extent such actions merely incorporate Documents.’’ This will direct the search 55504 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations to the menu page for Federal Register Subpart EÐDiesel Engines Intended Particulates. Any material collected Documents. The type of documents for Use in Underground Coal Mines on a specified filter medium after listed are proposed rules, final rules, diluting exhaust gases with clean, meetings (Advisory Committees), § 7.81 Purpose and effective date. filtered air at a temperature of less than Information Collection Requests, Subpart A general provisions of this or equal to 125° F (52° C), as measured petitions for modifications, proposed part apply to this subpart E. Subpart E at a point immediately upstream of the policies, and miscellaneous notices. establishes the specific engine primary filter. This is primarily carbon, Select the menu item desired. To return performance and exhaust emission condensed hydrocarbons, sulfates, and to MSHA’s home page, use the icon at requirements for MSHA approval of associated water. the bottom of the page or the ‘‘Back diesel engines for use in areas of Percent load. The fraction of the Button’’ provided by your browser. underground coal mines where maximum available torque at an engine permissible electric equipment is speed. List of Subjects required and areas where non- Rated horsepower. The nominal brake 30 CFR Part 7 permissible electric equipment is power output of a diesel engine as allowed. It is effective November 25, specified by the engine manufacturer Diesel-powered equipment, Mine 1996. with a specified production tolerance. safety and health, Reporting and For laboratory test purposes, the fuel recordkeeping requirements. § 7.82 Definitions. pump calibration for the rated In addition to subpart A definitions of horsepower must be set between the 30 CFR Parts 31 and 32 this part, the following definitions apply nominal and the maximum fuel Reporting and recordkeeping in this subpart. tolerance specification. requirements, Research, Underground Brake Power. The observed power Rated speed. Speed at which the rated coal mines. measured at the crankshaft or its power is delivered, as specified by the equivalent when the engine is equipped engine manufacturer. 30 CFR Part 36 only with standard auxiliaries necessary Steady-state condition. Diesel engine for its operation on the test bed. operating condition which is at a Mine safety and health. Category A engines. Diesel engines constant speed and load and at 30 CFR Parts 70 and 75 intended for use in areas of stabilized temperatures and pressures. underground coal mines where Total oxides of nitrogen. The sum Diesel-powered equipment, permissible electric equipment is total of the measured parts per millions Incorporations by reference, Mine safety required. (ppm) of nitric oxide (NO) plus the and health, Underground coal mines, Category B engines. Diesel engines measured ppm of nitrogen dioxide Reporting and recordkeeping intended for use in areas of (NO2). requirements. underground coal mines where § 7.83 Application requirements. nonpermissible electric equipment is Dated: October 15, 1996. (a) An application for approval of a J. Davitt McAteer, allowed. Corrosion-resistant material. Material diesel engine shall contain sufficient Assistant Secretary for Mine Safety and information to document compliance Health. that has at least the corrosion-resistant properties of type 304 stainless steel. with the technical requirements of this subpart and specify whether the Accordingly, chapter I of title 30, Diesel engine. Any compression application is for a category A engine or Code of Federal Regulations is amended ignition internal combustion engine using the basic diesel cycle where category B engine. as follows: (b) The application shall include the combustion results from the spraying of following engine specifications— PART 7ÐTESTING BY APPLICANT OR fuel into air heated by compression. THIRD PARTY (1) Model number; Exhaust emission. Any substance (2) Number of cylinders, cylinder bore emitted to the atmosphere from the diameter, piston stroke, engine 1. The authority citation for part 7 exhaust port of the combustion chamber displacement; continues to read as follows: of a diesel engine. (3) Maximum recommended air inlet Authority: 30 U.S.C. 957. Intermediate speed. Maximum torque restriction and exhaust backpressure; speed if it occurs between 60 percent (4) Rated speed(s), rated 2. New subparts E and F are added to and 75 percent of rated speed. If the horsepower(s) at rated speed(s), part 7 to read as follows: maximum torque speed is less than 60 maximum torque speed, maximum rated Subpart EÐDiesel Engines Intended for Use percent of rated speed, then the torque, high idle, minimum permitted in Underground Coal Mines intermediate speed shall be 60 percent engine speed at full load, low idle; Sec. of the rated speed. If the maximum (5) Fuel consumption at rated 7.81 Purpose and effective date. torque speed is greater than 75 percent horsepower(s) and at the maximum 7.82 Definitions. of the rated speed, then the intermediate rated torque; 7.83 Application requirements. speed shall be 75 percent of rated speed. (6) Fuel injection timing; and 7.84 Technical requirements. Low idle speed. The minimum no (7) Performance specifications of 7.85 Critical characteristics. load speed as specified by the engine turbocharger, if applicable. 7.86 Test equipment and specifications. manufacturer. (c) The application shall include 7.87 Test to determine the maximum fuel- Maximum torque speed. The speed at dimensional drawings (including air ratio. which an engine develops maximum tolerances) of the following components 7.88 Test to determine the gaseous torque. specifying all details affecting the ventilation rate. 7.89 Test to determine the particulate Operational range. All speed and load technical requirements of this subpart. index. (including percent loads) combinations Composite drawings specifying the 7.90 Approval marking. from the rated speed to the minimum required construction details may be 7.91 Post-approval product audit. permitted engine speed at full load as submitted instead of individual 7.92 New technology. specified by the engine manufacturer. drawings of the following components— Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55505

(1) Cylinder head; (2) There shall be no more than 0.25 (i) An apparatus for measuring torque (2) Piston; percent CO and no more than 0.20 that provides an accuracy of ±2.0 (3) Inlet valve; percent NOX for category B engines. percent based on the engine’s maximum (4) Exhaust valve; (c) Gaseous emissions ventilation rate. value; (5) Cam shaft—profile; Ventilation rates necessary to dilute (ii) An apparatus for measuring (6) Fuel cam shaft, if applicable; gaseous exhaust emissions to the (7) Injector body; following values shall be determined revolutions per minute (rpm) that (8) Injector nozzle; ± under § 7.88 of this part: provides an accuracy of 2.0 percent (9) Injection fuel pump; based on the engine’s maximum value; (10) Governor; Carbon dioxide ...... ¥5000 ppm (11) Turbocharger, if applicable; Carbon monoxide ...... ¥50 ppm (iii) An apparatus for measuring (12) Aftercooler, if applicable; Nitric oxide ...... ¥25 ppm temperature that provides an accuracy (13) Valve guide; Nitrogen dioxide ...... ¥5 ppm of ±4° F (2° C) of the absolute value (14) Cylinder head gasket; and A gaseous ventilation rate shall be except for the exhaust gas temperature (15) Precombustion chamber, if determined for each requested speed device that provides an accuracy of ±27° applicable. and horsepower rating as described in F (15° C); (d) The application shall include a § 7.88(b) of this part. (iv) An apparatus for measuring drawing showing the general (d) Fuel deration. The fuel rates arrangement of the engine. intake and exhaust restriction pressures specified in the fuel deration chart shall ± (e) All drawings shall be titled, dated, be based on the tests conducted under that provides an accuracy of 5 percent numbered, and include the latest paragraphs (b) and (c) of this section of maximum; revision number. and shall ensure that the maximum (v) An apparatus for measuring (f) When all necessary testing has fuel:air (f/a) ratio determined under atmospheric pressure that provides an been completed, the following paragraph (b) of this section is not accuracy of ±0.5 percent of reading; information shall be submitted: exceeded at the altitudes specified in (1) The gaseous ventilation rate for the (vi) An apparatus for measuring fuel the fuel deration chart. flow that provides an accuracy of ±2 rated speed and horsepower. (e) Particulate index. For each rated percent based on the engine’s maximum (2) The particulate index for the rated speed and horsepower requested, the value; speed and horsepower. particulate index necessary to dilute the (3) A fuel deration chart for altitudes exhaust particulate emissions to 1 mg/ (vii) An apparatus for measuring the for each rated speed and horsepower. m3 shall be determined under § 7.89 of inlet air flow rate of the diesel engine § 7.84 Technical requirements. this part. that provides an accuracy of ±2 percent based on the engine’s maximum value; (a) Fuel injection adjustment. The fuel § 7.85 Critical characteristics. injection system of the engine shall be and The following critical characteristics constructed so that the quantity of fuel (viii) For testing category A engines, injected can be controlled at a desired shall be inspected or tested on each ± diesel engine to which an approval an apparatus for metering in 1.0 0.1 maximum value. This adjustment shall percent, by volume, of methane (CH4) be changeable only after breaking a seal marking is affixed— (a) Fuel rate is set properly; and into the intake air system shall be or by altering the design. (b) Fuel injection pump adjustment is provided. (b) Maximum fuel-air ratio. At the sealed, if applicable. maximum fuel-air ratio determined by (2) The test fuel specified in Table § 7.87 of this part, the concentrations § 7.86 Test equipment and specifications. E–1 shall be a low volatile hydrocarbon fuel commercially designated as ‘‘Type (by volume, dry basis) of carbon (a) Dynamometer test cell shall be monoxide (CO) and oxides of nitrogen used in determining the maximum f/a 2–D’’ grade diesel fuel. The fuel may contain nonmetallic additives as (NOX) in the undiluted exhaust gas shall ratio, gaseous ventilation rates, and the not exceed the following: particulate index. follows: Cetane improver, metal (1) There shall be no more than 0.30 (1) The following testing devices shall deactivator, antioxidant, dehazer, percent CO and no more than 0.20 be provided: antirust, pour depressant, dye, percent NOX for category A engines. dispersant, and biocide.

TABLE E±1.ÐDIESEL TEST FUEL SPECIFICATIONS

Item ASTM Type 2±D

Cetane number ...... D613 40±48. Cetane index ...... D976 40±48. Distillation range: IBP °F ...... D86 340±400. (°C) ...... (171.1±204.4). 10 pct. point, °F ...... D86 400±460. (°C) ...... (204.4±237.8). 50 pct. point, °F ...... D86 470.540. (°C) ...... (243.3±282.2). 90 pct. point, °F ...... D86 560±630. (°C) ...... (293.3±332.2). EP, °F ...... D86 610±690. (°C) ...... (321.1±365.6). Gravity, °API ...... D287 32±37. Total sulfur, pct...... D2622 0.03±0.05. Hydrocarbon composition: Aromatics, pct...... D1319 27 minimum. Paraffins, naphthenes, olefins ...... D1319 Remainder. 55506 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations

TABLE E±1.ÐDIESEL TEST FUEL SPECIFICATIONSÐContinued

Item ASTM Type 2±D

Flashpoint, minimum, °F ...... 93 130. (°C) ...... (54.4). Viscosity, centistokes ...... 445 2.0±3.2.

(3) The test fuel temperature at the engines. Various configurations of (ix) Flow Control Valves—V9, V10, inlet to the diesel engine’s fuel injection Figure E–1 may produce equivalent V11 and V12; pump shall be controlled to the engine results. The components in Figure E–1 (x) Heated Flow Control Valves—V14 manufacturer’s specification. are designated as follows— and V18; (4) The engine coolant temperature (if (i) Filters—F1, F2, F3, and F4; (xi) Pump—Sample Transfer Pump; applicable) shall be maintained at (ii) Flowmeters—FL1, FL2, FL3, FL4, normal operating temperatures as FL5, FL6, and FL7; (xii) Temperature Sensor—(T1); specified by the engine manufacturer. (iii) Upstream Gauges—G1, G2, and (xiii) Dryer—D1 and D2; and (5) The charge air temperature and G5; (xiv) Water traps—WT1 and WT2. cooler pressure drop (if applicable) shall (iv) Downstream Gauges—G3, G4, and (A) Water removal from the sample ± ° ° ± be set to within 7 F(4 C) and 0.59 G6; shall be done by condensation. inches Hg (2kPa) respectively, of the (v) Pressure Gauges—P1, P2, P3, P4, (B) The sample gas temperature or manufacturer’s specification. P5, and P6; dew point shall be monitored either (b) Gaseous emission sampling system (vi) Regulators—R1, R2, R3, R4, R5, within the water trap or downstream of shall be used in determining the gaseous R6, and R7; the water trap and shall not exceed 45° ventilation rates. (vii) Selector Valves—V1, V2, V3, V4, F (7° C). (1) The schematic of the gaseous V6, V7, V8, V15, and V19; sampling system shown in Figure E–1 (viii) Heated Selector Valves—V5, (C) Chemical dryers are not permitted. shall be used for testing category A V13, V16, and V17; BILLING CODE 4510±43±P Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55507

BILLING CODE 4510±43±C 55508 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations

(2) The schematic of the gaseous (v) Pressure Gauges—P1, P2, P3, and (A) Water removal from the sample sampling system shown in Figure E–2 P4; shall be done by condensation. shall be used for testing category B (vi) Regulators—R1, R2, R3, and R4; (B) The sample gas temperature or engines. Various configurations of (vii) Selector Valves—V1, V2, V3, V4, dew point shall be monitored either Figure E–2 may produce equivalent V6, and V7; within the water trap or downstream of results. The components are designated (viii) Heated Selector Valves—V5, V8, the water trap and shall not exceed 45 as follows— and V12; °F (7 °C). (i) Filters—F1, F2, F3, and F4; (ix) Flow Control Valves—V9, V10, (C) Chemical dryers are not permitted. V11; (3) All components or parts of (ii) Flowmeters—FL1, FL2, FL3, and (x) Heated Flow Control Valves—V13; components that are in contact with the FL4; (xi) Pump—Sample Transfer Pump; sample gas or corrosive calibration gases (iii) Upstream Gauges—G1, and G2; (xii) Temperature Sensor—(T1); and shall be corrosion-resistant material. (iv) Downstream Gauges—G3, and G4; (xiii) Water traps—WT1 and WT2. BILLING CODE 4510±43±P Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55509

BILLING CODE 4510±43±C 55510 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations

(4) All analyzers shall obtain the (iv) The analyzer zero drift during a (iii) The analyzer fuel shall contain 40 sample to be analyzed from the same 1-hour period shall be less than 2 ± 2 percent hydrogen. The balance shall sample probe. percent of full scale on the lowest range be helium. The mixture shall contain ≤ (5) CO and CO2 measurements shall used. The zero-response is the mean 1 part per million equivalent carbon be made on a dry basis. response, including noise, to a zero gas (ppmC), and ≤ 400 ppm CO. (6) Calibration or span gases for the during a 30-second time interval. (iv) The burner air shall contain < 2 NOX measurement system shall pass (v) The analyzer span drift during a 1- ppmC hydrocarbon. through the NO2 to NO converter. hour period shall be less than 2 percent (v) The percent of oxygen interference (7) A stainless steel sample probe of full scale on the lowest range used. shall be less than 5 percent. shall be straight, closed-end, multi- The analyzer span is defined as the (15) An NDIR analyzer for measuring holed, and shall be placed inside the difference between the span response CH4 may be used in place of the HFID exhaust pipe. and the zero response. The span specified in paragraph (b)(14) of this (i) The probe length shall be at least response is the mean response, section and shall conform to the 80 percent of the diameter of the including noise, to a span gas during a requirements of paragraph (b)(10) of this exhaust pipe. 30-second time interval. section. Methane measurements shall be (ii) The inside diameter of the sample (11) CO and CO2 analyzer made on a dry basis. probe shall not be greater than the specifications. (16) Calibration gas values shall be (i) Measurements shall be made with inside diameter of the sample line. traceable to the National Institute for nondispersive infrared (NDIR) (iii) The heated sample line shall have Standards and Testing (NIST), analyzers. a 0.197 inch (5 mm) minimum and a (ii) For the CO analyzer, the water and ‘‘Standard Reference Materials’’ 0.53 inch (13.5 mm) maximum inside (SRM’s). The analytical accuracy of the CO2 interference shall be less than 1 diameter. percent of full scale for ranges equal to calibration gas values shall be within (iv) The wall thickness of the probe or greater than 300 ppm (3 ppm for 2.0 percent of NIST gas standards. shall not be greater than 0.040 inch (1 (17) Span gas values shall be traceable ranges below 300 ppm) when a CO2 mm). span gas concentration of 80 percent to to NIST SRM’s. The analytical accuracy (v) There shall be a minimum of 3 100 percent of full scale of the of the span gas values shall be within holes in 3 different radial planes sized maximum operating range used during 2.0 percent of NIST gas standards. to sample approximately the same flow. testing is bubbled through water at room (18) Calibration or span gases for the (8) The sample probe shall be located temperature. CO and CO2 analyzers shall have in the exhaust pipe at a minimum (12) For NOX analysis using a purified nitrogen as a diluent. distance of 1.6 feet (0.5 meters) or 3 chemiluminescence (CL) analyzer the Calibration or span gases for the CH4 times the diameter of the exhaust pipe, following parameters shall apply: analyzer shall be CH4 with purified whichever is the larger, from the (i) From the sample point to the NO2 synthetic air or purified nitrogen as exhaust manifold outlet flange or the to NO converter, the NOX sample shall diluent. outlet of the turbocharger. The exhaust be maintained between 131° F (55° C) (19) Calibration or span gases for the gas temperature at the sample probe and 392° F (200° C). NOX analyzer shall be NO with a shall be a minimum of 158° F (70° C). (ii) The NO2 to NO converter maximum NO2 concentration of 5 (9) The maximum allowable leakage efficiency shall be at least 90 percent. percent of the NO content. Purified rate on the vacuum side of the analyzer (iii) The quench interference from nitrogen shall be the diluent. pump shall be 0.5 percent of the in-use CO2 and water vapor must be less than (20) Zero-grade gases for the CO, CO2, flow rate for the portion of the system 3.0 percent. CH4 , and NOX analyzers shall be either being checked. (13) For NOX analysis using an NDIR purified synthetic air or purified (10) General analyzer specifications. analyzer system the following nitrogen. (i) The total measurement error, parameters shall apply: (21) The allowable zero-grade gas including the cross sensitivity to other (i) The system shall include a NO2 to (purified synthetic air or purified gases, (paragraphs (b)(11)(ii), (b)(12)(iii), NO converter, a water trap, and a NDIR nitrogen) impurity concentrations shall (b)(13)(iii), and (b)(13)(iv) of this analyzer. not exceed ≤ 1ppm C, ≤ 1 ppm CO, ≤ (ii) From the sample point to the NO2 section), shall not exceed ±5 percent of 400 ppm CO2, and ≤ 0.1 ppm NO. ± to NO converter, the NOX sample shall the reading or 3.5 percent of full scale, ° ° (22) The calibration and span gases whichever is smaller. For be maintained between 131 F (55 C) may also be obtained by means of a gas and 392° F (200° C). concentrations of less than 100 ppm the divider. The accuracy of the mixing (iii) The minimum water rejection measurement error shall not exceed ±4 device must be such that the ratio (maximum water interference) for ppm. the NO NDIR analyzer shall be 5,000:1. concentration of the diluted calibration (ii) The repeatability, defined as 2.5 X gases are within 2 percent. (iv) The minimum CO2 rejection ratio times the standard deviation of 10 (c) Particulate sampling system shall (maximum CO2 interference) for the repetitive responses to a given be used in determining the particulate NOX NDIR analyzer shall be 30,000:1. calibration or span gas, must be no (14) When CH is measured using a index. A schematic of a full flow (single ± 4 greater than 1 percent of full scale heated flame ionization detector (HFID) dilution) particulate sampling system concentration for each range used above the following shall apply: for testing under this subpart is shown 155 parts per million (ppm) or parts per (i) The analyzer shall be equipped in Figures million equivalent carbon (ppmC) or ±2 with a constant temperature oven that E–3 and E–4. percent of each range used below 155 houses the detector and sample- (1) The dilution system shall meet the ppm (or ppmC). handling components. following parameters: (iii) The analyzer peak to peak (ii) The detector, oven, and sample- (i) Either a positive displacement response to zero and calibration or span handling components shall be suitable pump (PDP) or a critical flow venturi gases over any 10 second period shall for continuous operation at (CFV) shall be used as the pump/mass not exceed 2 percent of full scale on all temperatures of 374° F (190° C) ± 18° F measurement device shown in Figure E– ranges used. (10° C). 3. Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55511

(ii) The total volume of the mixture of (C) The equivalency criterion is (ii) Flow compensation can be used exhaust and dilution air shall be defined as a ± 5 percent agreement of provided that the temperature at the measured. the sample pair averages. inlet to the PDP does not exceed 122° ° (iii) All parts of the system from the (2) The mass of particulate in the F (50 C). exhaust pipe up to the filter holder, exhaust shall be collected by filtration. (iii) Using CFV, the gas mixture The exhaust temperature immediately temperature shall be maintained within which are in contact with raw and ± ° ° diluted exhaust gas, shall be designed to before the primary particulate filter 20 F (11 C) of the average operating ° ° minimize deposition or alteration of the shall not exceed 125 F (52.0 C). temperature observed during the test, when no flow compensation is used. particulate. (3) Exhaust system backpressure shall not be artificially lowered by the PDP, (5) The heat exchanger shall be of (iv) All parts shall be made of CFV systems or dilution air inlet sufficient capacity to maintain the electrically conductive materials that do system. Static exhaust backpressure temperature within the limits required not react with exhaust gas components. measured with the PDP or CFV system above and is optional if electronic flow (v) All parts shall be electrically operating shall remain within ± 0.44 compensation is used. grounded to prevent electrostatic effects. inches Hg (1.5 kPa) of the static pressure (6) When the temperature at the inlet of either the PDP or CFV exceeds the (vi) Systems other than full flow measured without being connected to limits stated in either paragraphs systems may also be used provided they the PDP or CFV at identical engine speed and load. (c)(4)(i) or (c)(4)(iii) of this section, an yield equivalent results where: (4) The gas mixture temperature shall electronic flow compensation system (A) A seven sample pair (or larger) be measured at a point immediately shall be required for continuous correlation study between the system ahead of the pump or mass measurement of the flow rate and under consideration and a full flow measurement device. control of the proportional sampling in dilution system shall be run (i) Using PDP, the gas mixture the particulate sampling system. concurrently. temperature shall be maintained within (7) The flow capacity of the system (B) Correlation testing is to be ± 10° F (6.0° C) of the average operating shall be large enough to eliminate water performed at the same laboratory, test temperature observed during the test, condensation. cell, and on the same engine. when no flow compensation is used. BILLING CODE 4510±43±P 55512 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55513

BILLING CODE 4510±43±C 55514 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations

(8) The flow capacity of the PDP or (ii) Have 0.5 inches (12 mm) (vi) Have a pressure drop increase CFV system using single dilution shall minimum inside diameter. between the beginning and end of the maintain the diluted exhaust at 125 °F (16) The inlet gas temperature to the test of no more than 7.4 in Hg (25kPa). (52.0° C) or less immediately before the particulate sample pump or mass (vii) Filters of identical quality shall primary particulate filter. measurement device shall remain a be used when performing correlation (9) The flow capacity of the PDP or constant temperature of ±5° F (3.0° C) if tests specified in paragraph (c)(1)(vi) of CFV system using a double dilution flow compensation is not used. this section. system shall be sufficient to maintain (17) The secondary dilution portion of (19) Weighing chamber specifications. the diluted exhaust in the dilution the double dilution system shall have: (i) The temperature of the chamber tunnel at 375° F (191° C) or less at the (i) A particulate transfer tube shall (room) in which the particulate filters sampling zone. have a 0.5 inch (12 mm) minimum are conditioned and weighed shall be (10) The secondary dilution system inside diameter not to exceed 40 inches maintained to within 72 °F±5 °F (22 shall provide sufficient secondary (1020 mm) in length measured from the °C±3 °C) during all filter conditioning probe tip to the secondary dilution dilution air to maintain the double- and weighing. diluted exhaust stream at 125° F (52.0° tunnel has: (A) An inlet with the transfer tube (ii) The humidity of the chamber C) or less immediately before the (room) in which the particulate filters primary particulate filter. facing upstream in the primary dilution tunnel, centerline, and approximately are conditioned and weighed shall be (11) The gas flow meters or the mass maintained to a dewpoint of 49 °F±5 °F flow measurement instrumentation shall 10 dilution tunnel diameters ° ± ° downstream of the point where the (9.5 C 3 C) and a relative humidity of have a maximum error of the measured 45 percent ±8 percent during all filter ± engine’s exhaust enters the dilution value within 2 percent of reading. conditioning and weighing. (12) The dilution air shall have a tunnel. ° ± ° ° ± ° (B) An outlet where the transfer tube (iii) The chamber (room) environment temperature of 77 F 9 F (25 C 5 C), shall be free of any ambient and be— exits on the centerline of the secondary tunnel and points downstream. contaminants (such as dust) that would (i) Filtered at the air inlet; or settle on the particulate filters during (ii) Sampled to determine background (ii) A secondary tunnel that has a their stabilization. This shall be particulate levels, which can then be minimum diameter of 3.0 inches (75 determined as follows: subtracted from the values measured in mm), and of sufficient length to provide (A) At least two unused reference the exhaust stream. a residence time of at least 0.25 seconds (13) The dilution tunnel shall have for the double-diluted sample. filters or reference filter pairs shall be (iii) Secondary dilution air supplied weighed within four (4) hours of, but the following specifications: ° ± ° ° ± ° (i) Be small enough in diameter to at a temperature of 77 F 9 F(25 C 5 preferably at the same time as the cause turbulent flow (Reynolds number C). sample filter (pair) weighings. (iv) A primary filter holder located greater than 4,000) and of sufficient (B) The reference filters are to be the within 12.0 inches (300 mm) of the exit length to cause complete mixing of the same size and material as the sample of the secondary tunnel. filters. exhaust and dilution air; (18) The particulate sampling filters (ii) Be at least 3 inches (75 mm) in (C) If the average weight of reference shall— filters (reference filter pairs) changes diameter; and (i) Be fluorocarbon-coated glass fiber (iii) Be configured to direct the engine between sample filter weighings by filters or fluorocarbon-based more than ±5.0 percent (±7.5 percent for exhaust downstream at the point where (membrane) filters and have a 0.3 µm di- it is introduced into the dilution tunnel the filter pair respectively) of the octylphthalate (DOP) collection recommended minimum filter loading for thorough mixing. efficiency of at least 95 percent at a gas (14) The exhaust pipe length from the in paragraphs (c)(18)(iii) or (c)(18)(iv) of face velocity between 35 and 80 cm/s.; this section, then all sample filters shall exit of the engine exhaust manifold or (ii) Have a minimum diameter of 1.85 be discarded and the tests repeated. turbocharger outlet to the dilution inches (47 mm), 1.46 inches (37 mm) tunnel shall not exceed a total length of stain diameter; (20) The analytical balance used to 32 feet (10 m). (iii) Have a minimum filter loading determine the weights of all filters shall (i) When the exhaust pipe exceeds 12 2 have a precision (standard deviation) of ratio of 0.5mg/1075 mm stain area for µ µ feet (4 m), then all pipe in excess of 12 the single filter method. 20 g and resolution of 10 g. For filters feet (4 m) shall be insulated with a (iv) Have minimum filter loading such less than 70 mm diameter, the precision µ µ radial thickness of at least 1.0 inch (25 that the sum of all eight (8) multiple and resolution shall be 2 g and 1 g, mm) and the thermal conductivity of the filters is equal to the minimum loading respectively. insulating material shall be no greater value (mg) for a single filter multiplied (21) All filters shall be neutralized to than 0.1 W/mK measured at 752° F by the square root of eight (8). eliminate the effects of static electricity (400° C). (v) Be sampled at the same time by a prior to weighing. (ii) To reduce the thermal inertia of pair of filters in series (one primary and the exhaust pipe, the thickness to § 7.87 Test to determine the maximum one backup filter) so that: fuel-air ratio. diameter ratio shall be 0.015 or less. (A) The backup filter holder shall be (iii) The use of flexible sections shall located no more than 4 inches (100 mm) (a) Test procedure. be limited to the length to diameter ratio downstream of the primary filter holder. (1) Couple the diesel engine to the of 12 or less. (B) The primary and backup filters dynamometer and connect the sampling (15) The particulate sample probe shall not be in contact with each other. and measurement devices specified in shall— (C) The filters may be weighed § 7.86. (i) Be installed in the dilution tunnel separately or as a pair with the filters (2) Prior to testing, zero and span the facing upstream, on the dilution tunnel placed stain side to stain side. CO and NOX analyzers to the lowest centerline, and approximately 10 (D) The single filter method analyzer range that will be used during dilution tunnel diameters downstream incorporates a bypass system for passing this test. of the point where the engine’s exhaust the sample through the filters at the (3) While running the engine, the enters the dilution tunnel; and desired time. following shall apply: Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55515

(i) The parameter for the laboratory (5) In a category A engine, 1.0±0.1 (i) The output from the gas analyzers atmospheric factor, fa, shall be: percent CH4 shall be injected into the shall be measured and recorded with 0.98≤fa≤1.02; engine’s intake air. exhaust gas flowing through the (A) The equation is fa=(99/Ps) * (6) Operate the engine at several analyzers a minimum of the last three 0.7 ((Ta+273)/298) for a naturally speed/torque conditions to determine (3) minutes of each mode. aspirated and mechanically the concentrations of CO and NOX, dry (ii) To evaluate the gaseous emissions, supercharged engines; or basis, in the raw exhaust. 0.7 the last 60 seconds of each mode shall (B) The equation is fa=(99/Ps) * (b) Acceptable performance. The CO 1.5 be averaged. ((Ta+273)/298) for a turbocharged and NOX concentrations in the raw ± engine with or without cooling of the (iii) A 1.0 0.1 percent CH4, by exhaust shall not exceed the limits volume, shall be injected into the intake air. specified in § 7.84(b) throughout the Where: engine’s intake air for category A specified operational range of the engines. Ps=dry atmospheric pressure (kPa) engine. Ta=intake air temperature (°C) (iv) The engine speed and torque shall (ii) The air inlet restriction shall be set § 7.88 Test to determine the gaseous be measured and recorded at each test within ±10 percent of the recommended ventilation rate. mode. maximum air inlet restriction as The test shall be performed in the (v) The data required for use in the specified by the engine manufacturer at order listed in Table E–2. The test for gaseous ventilation calculations the engine operating condition giving determination of the particulate index specified in paragraph (a)(9) of this maximum air flow to determine the described in § 7.89 may be done section shall be measured and recorded concentration of CO as specified in simultaneously with this test. at each test mode. paragraph (a)(6) of this section. (a) Test procedure. (iii) The exhaust backpressure (6) Operate the engine at each rated ± (1) Couple the diesel engine to the speed and horsepower rating requested restriction shall be set within 10 dynamometer and attach the sampling percent of the maximum exhaust by the applicant according to Table E– and measurement devices specified in backpressure as specified by the engine 2 in order to measure the raw exhaust § 7.86. manufacturer at the engine operating gas concentration, dry basis, of CO, CO2, (2) A minimum time of 10 minutes is condition giving maximum rated NO, and NO2, and CH4- exhaust required for each test mode. horsepower to determine the (category A engines only). concentrations of CO and NO as (3) CO, CO2, NOX, and CH4 analyzers X shall be zeroed and spanned at the (i) Test speeds shall be maintained specified in paragraph (a)(6)of this within ±1 percent of rated speed or ±3 section. analyzer range to be used prior to testing. RPM, which ever is greater, except for (iv) The air inlet restriction shall be low idle which shall be within the ± (4) Run the engine. set within 10 percent of a tolerances established by the (i) The parameter for f shall be recommended clean air filter at the a manufacturer. engine operating condition giving calculated in accordance with maximum air flow as specified by the § 7.87(a)(3). (ii) The specified torque shall be held engine manufacturer to determine the (ii) The air inlet and exhaust so that the average over the period backpressure restrictions on the engine during which the measurements are concentration of NOX as specified in ± paragraph (a)(6) of this section. shall be set as specified in §§ 7.87(a)(3) taken is within 2 percent of the (4) The engine shall be at a steady- (iii) and (iv). maximum torque at the test speed. state condition when the exhaust gas (5) The engine shall be at a steady- (7) The concentration of CH4 in the samples are collected and other test data state condition before starting the test intake air shall be measured for category is measured. modes. A engines.

TABLE E±2.ÐGASEOUS TEST MODES

Speed Rated speed Intermediate speed Low- idle speed % Torque 100 75 50 10 100 75 50 0

(8) After completion of the test modes, cfm—Cubic feet per min (ft3/min) (ii) Exhaust gas flow calculation for the following shall be done: Exh—Exhaust category B engines shall be (m (i) Zero and span the analyzers at the A—Air (lbs/hr) Exh)=(A)+(m fuel). ranges used during the test. H—Grains of water per lb. of dry intake (iii) Fuel/air ratio for category B (ii) The gaseous emission test shall be engines shall be (f/a)=(m fuel) / (A). acceptable if the difference in the zero air and span results taken before the test J—Conversion factor (iv) Methane flow through category A and after the test are less than 2 percent. m—Mass flow rate (mass/hr) engines shall be determined by the following: (9) The gaseous ventilation rate for TI—Intake air temperature (° F) each exhaust gas contaminant shall be PCAir—Percent Air PCAir=100¥PCCH4 calculated as follows— Y=(PCAir)(0.289)+(PCCH4)(0.16) (i) The following abbreviations shall PCCH4—Percent CH4 (intake air) ÷ apply to both category A and category UCH4—Unburned CH4 Z=(0.16)(PCCH4) Y B engine calculations as appropriate: PCECH4—Percent Exhaust CH4 mCH4=(A)(Z)÷(1¥Z) 55516 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations

(v) Exhaust gas flow calculation for K=13,913.4 (pollutant grams/mole) (4) Run the engine. category A engines shall be (m (pollutant dilution value specified (i) The parameter for fa shall be Exh)=(A)+(m fuel)+(m CH4) in § 7.84(c)). calculated in accordance with (vi) Unburned CH4 (lbs/hr) calculation (b) The gaseous ventilation rate for § 7.87(a)(3). for category A engines shall be each requested rated speed and (ii) The air inlet and exhaust mUCH4=(m Exh)(0.00552)(PCECH4) horsepower shall be the highest backpressure restrictions on the engine (vii) Fuel/air ratio for category A ventilation rate calculated in paragraph shall be set as specified in §§ 7.87(a)(3) engines shall be (f/a)=((m fuel)+(m (a)(9)(xi) of this section. (iii) and (iv). ÷ CH4)¥(m UCH4)) (A) (1) Ventilation rates less than 20,000 (iii) The dilution air shall be set to (viii) Conversion from dry to wet basis cfm shall be rounded up to the next 500 obtain a maximum filter face for both category A and category B cfm. temperature of 125° F (52° C) or less at engines shall be: Example: 10,432 cfm shall be listed each test mode. (NO wet basis)=(NO dry basis)(J) 10,500 cfm. (iv) The total dilution ratio shall not (2) Ventilation rates greater than (NO2 wet basis)=(NO2 dry basis)(J) be less than 4. 20,000 cfm shall be rounded up to the (CO2 wet basis)=(CO2 dry basis)(J) (5) The engine shall be at a steady ¥4 next 1,000 cfm. (CO wet basis)=(CO dry basis)(10 )(J) state condition before starting the test Where: Example: 26,382 cfm shall be listed 27,000 cfm. modes. J=(f/a)(¥1.87)+(1¥(0.00022)(H)) (i) The engine speed and torque shall

(ix) NO and NO2 correction for § 7.89 Test to determine the particulate be measured and recorded at each test humidity and temperature for category index. mode. A and category B engines shall be: The test shall be performed in the (ii) The data required for use in the (NO corr)=(NO wet basis)÷(E) order listed in Table E–3. particulate index calculation specified (a) Test procedure. (NO2 corr)=(NO2 wet basis)÷(E) in paragraph (a)(9) of this section shall (1) Couple the diesel engine to the be measured and recorded at each test Where: dynamometer and connect the sampling mode. ¥ ¥ E=1.0+(R)(H 75)+(G)(TI 77) and measurement devices specified in (6) A 1.0±0.1 percent CH , by volume R=(f/a)(0.044)¥(0.0038) 4 § 7.86. shall be injected into the engine’s intake G=(f/a)(¥0.116)+(0.0053) (2) A minimum time of 10 minutes is air for category A engines. (x) The calculations to determine the required for each measuring point. (7) Operate the engine at each rated (3) Prior to testing, condition and m of each exhaust gas contaminant in speed and horsepower rating requested weigh the particulate filters as follows: grams per hour at each test point shall by the applicant according to Table E– be as follows for category A and (i) At least 1 hour before the test, each filter (pair) shall be placed in a closed, 3 to collect particulate on the primary category B engines: filter. (m NO)=(NO corr)(0.000470)(m Exh) but unsealed, petri dish and placed in a weighing chamber (room) for (i) One pair of single filters shall be (m NO2)=(NO2 corr)(0.000720)(m Exh) stabilization. collected or eight multiple filter pairs (m CO2)=(CO2 wet basis)(6.89)(m Exh) shall be collected. (m CO)=(CO wet basis)(4.38)(m Exh) (ii) At the end of the stabilization period, each filter (pair) shall be (ii) Particulate sampling shall be (xi) The calculations to determine the weighed. The reading is the tare weight. started after the engine has reached a ventilation rate for each exhaust gas (iii) The filter (pair) shall then be steady-state condition. contaminant at each test point shall be stored in a closed petri dish or a filter (iii) The sampling time required per as follows for category A and category holder, both of which shall remain in mode shall be either a minimum of 20 B engines: the weighing chamber (room) until seconds for the single filter method or (cfm NO)=(m NO)(K) needed for testing. a minimum of 60 seconds for the (cfm NO2)=(m NO2)(K) (iv) The filter (pair) must be re- multiple filter method. (cfm CO2)=(m CO2)(K) weighed if not used within 8 hours of (iv) The minimum particulate loading (cfm CO)=(m CO)(K) its removal from the weighing chamber specified in §§ 7.86(c)(18) (iii) or (iv) Where: (room). shall be done.

TABLE E±3.ÐPARTICULATE TEST MODES

Speed Rated speed Intermediate speed Low- idle speed % Torque 100 75 50 10 100 75 50 0

Weighting factor ...... 0.15 0.15 0.15 0.1 0.1 0.1 0.1 0.15

(v) Test speeds shall be maintained being taken is within ±2 percent of the during sampling by taking a sample within ± percent of rated speed or ±3 maximum torque at the test speed. proportional to the exhaust mass flow RPM, which ever is greater, except for (vii) The modal weighting factors for each mode of the cycle. low idle which shall be within the (WF) given in Table E–3 shall be (8) After completion of the test, tolerances set by the manufacturer. applied to the multiple filter method condition and weigh the particulate (vi) The specified torque shall be held during the calculations as shown in filters in the weighing chamber (room) so that the average over the period paragraph (a)(9)(iii)(B) of this section. as follows: during which the measurements are (viii) For the single filter method, the (i) Condition the filters for at least 1 modal WF shall be taken into account hour, but not more than 80 hours. Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55517

3 (ii) At the end of the stabilization cfm—Cubic feet per min (ft min) concentration (PF part), the equation period, weigh each filter. The reading is PT—Particulate (gr/hr) shall be: the gross weight. m mix—Diluted exhaust gas mass flow Pfcorr=(Pf)(Kp) rate on wet basis (kg/hr) (iii) The particulate mass of each filter Kp=1/(1+0.0133 * (H¥10.71)) is its gross weight minus its tare weight. m sample—Mass of the diluted exhaust Where: (iv) The particulate mass (PF for the sample passed through the Ha=humidity of the intake air, g water single filter method; PF,i for the multiple particulate sampling filters (kg) filter method) is the sum of the PF—Particulate sample mass collected per kg dry air ±2 particulate masses collected on the on a filter (mg) at each test mode as Ha=(6.220 * Ra * pa)/(pB¥pa ¥ Ra * 10 ) primary and back-up filters. determined in Table E–3. Ra=relative humidity of the intake air, % (v) The test is void and must be rerun Kp—Humidity correction factor for pa=saturation vapor pressure of the if the sample on the filter contacts the particulate intake air, kPa petri dish or any other surface. WF—Weighting factor pB=total barometric pressure, kPa (9) The particulate index for the mass i-Subscript denoting an individual (iii) When the multiple filter method particulate shall be calculated from the mode, i=1, . . . n is used, the following equations shall be equations listed below— PI—Particulate Index (cfm) used. (i) The following abbreviations shall (ii) When calculating ambient (A) Mass of particulate emitted is be: humidity correction for the particulate calculated as follows:

(P mg)( m mix kg/ hr ) PT gr/ hr = fcorr i i i ( )( ) m sample kgi 1000 mg/ gr (B) Determination of weighted particulate average is calculated as follows:

i= n = ( )( ) PT gr// hr∑ PT gr hri WF i i=1 (C) Determination of particulate index for the mass particulate from the average of the test modes shall be calculated as follows:

3 3 (PT gr/ hr)(1000 mg / gr)( 1 hr / 60 min)( 35 . 31 ft / m ) PI = 3 (1// 1 mg m )

(iv) When the single filter method is used, the following equations shall be used. (A) Mass of particulate emitted:

(P mg)( m mix kg/. hr) avg PT gr/ hr = Fcorr (m sample kg)(1000 mg/ gr) Where:

i= n ( ) = ( )( ) m mix kg/./ hr avg∑ m mix kg hri WF i i=1

i= n ( ) = ( ) m sample kg∑ m sample kgi i=1 (B) Determination of particulate index for the mass particulate from the average of the test modes shall be as follows:

3 3 (PT gr/ hr)(1000 mg / gr)( 1 hr / 60 min)( 35 . 31 ft / m ) PI = 3 (1// 1 mg m )

(v) When the effective weighting factor, WFE,i, for each mode is calculated for the single filter method, the following shall apply.

(m sample kg) ( m mix kg/ hr avg) ()A WF = i E, i ( )( ) m sample kg m mix kg/ hri (B) The value of the effective weighting factors shall be within ±0.005 (absolute value) of the weighting factors listed in Table E–3. 55518 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations

(b) A particulate index for each Subpart F±Diesel Power Packages shutoff device, the air cleaner, and all requested rated speed and horsepower Intended for Use in Areas of piping and adapters between the intake shall be the value determined in Underground Coal Mines Where manifold and air cleaner. paragraph (a)(9)(iii)(C) of this section for Permissible Electric Equipment is Plane joint. A joint comprised of two the multiple filter method or paragraph Required adjoining surfaces in parallel planes. (a)(9)(iv)(B) of this section for the single Safety shutdown system. A system § 7.95 Purpose and effective date. filter method. which, in response to signals from Part 7, subpart A general provisions various safety sensors, recognizes the (1) Particulate indices less than apply to subpart F. Subpart F existence of a potential hazardous 20,000 cfm shall be rounded up to the establishes the specific requirements for condition and automatically shuts off next 500 cfm. Example: 10,432 cfm shall MSHA approval of diesel power the fuel supply to the engine. be listed 10,500 cfm. packages intended for use in approved Step (rabbet) joint. A joint comprised (2) Particulate indices greater than equipment in areas of underground coal of two adjoining surfaces with a change 20,000 cfm shall be rounded up to the mines where electric equipment is or changes in direction between its nearest thousand 1,000 cfm. Example: required to be permissible. It is effective inner and outer edges. A step joint may 26,382 cfm shall be listed 27,000 cfm. November 25, 1996. be composed of a cylindrical portion and a plane portion or of two or more § 7.90 Approval marking. § 7.96 Definitions. plane portions. In addition to the definitions in Each approved diesel engine shall be Threaded joint. A joint consisting of subparts A and E of this part, the a male- and female-threaded member, identified by a legible and permanent following definitions apply in this both of which are the same type and approval marking inscribed with the subpart. gauge. assigned MSHA approval number and Cylindrical joint. A joint comprised of Wet exhaust conditioner. An exhaust securely attached to the diesel engine. two contiguous, concentric, cylindrical conditioner that cools the exhaust gas The marking shall also contain the surfaces. through direct contact with water, following information: Diesel power package. A diesel engine commonly called a water scrubber. (a) Ventilation rate. with an intake system, exhaust system, and a safety shutdown system installed. § 7.97 Application requirements. (b) Rated power. Dry exhaust conditioner. An exhaust (a) An application for approval of a (c) Rated speed. conditioner that cools the exhaust gas diesel power package shall contain (d) High idle. without direct contact with water. sufficient information to document Exhaust conditioner. An enclosure, compliance with the technical (e) Maximum altitude before deration. containing a cooling system, through requirements of this subpart and (f) Engine model number. which the exhaust gases pass. include: drawings, specifications, and Exhaust system. A system connected descriptions with dimensions § 7.91 Post-approval product audit. to the outlet of the diesel engine which (including tolerances) demonstrating Upon request by MSHA, but no more includes, but is not limited to, the compliance with the technical than once a year except for cause, the exhaust manifold, the exhaust pipe, the requirements of § 7.98. The approval holder shall make a diesel exhaust conditioner, the exhaust flame specifications and descriptions shall engine available for audit at no cost to arrester, and any adapters between the include the materials of construction MSHA. exhaust manifold and exhaust flame and quantity. These shall include the arrester. following— § 7.92 New technology. Fastening. A bolt, screw, or stud used (1) A general arrangement drawing MSHA may approve a diesel engine to secure adjoining parts to prevent the showing the diesel power package and escape of flame from the diesel power the location and identification of the that incorporates technology for which package. intake system, exhaust system, safety the requirements of this subpart are not Flame arrester. A device so shutdown system sensors, flame applicable if MSHA determines that the constructed that flame or sparks from arresters, exhaust conditioner, diesel engine is as safe as those which the diesel engine cannot propagate an emergency intake air shutoff device, meet the requirements of this subpart. explosion of a flammable mixture automatic fuel shutoff device and the Subpart FÐDiesel Power Packages through it. engine. Intended for Use in Areas of Underground Flame arresting path (explosion-proof (2) Diesel engine specifications Coal Mines Where Permissible Electric joint). Two or more adjoining or including the MSHA approval number, Equipment Is Required adjacent surfaces between which the the engine manufacturer, the engine Sec. escape of flame is prevented. model number, and the rated speed, 7.95 Purpose and effective date. Flammable mixture. A mixture of rated horsepower, and fuel rate. 7.96 Definitions. methane or natural gas with normal air, (3) A drawing(s) which includes the 7.97 Application requirements. that will propagate flame or explode fan blade material specifications, the 7.98 Technical requirements. when ignited. location and identification of all water- 7.99 Critical characteristics. Grade. The slope of an incline cooled components, coolant lines, 7.100 Explosion tests. expressed as a percent. radiator, surge tank, temperature 7.101 Surface temperature tests. High idle speed. The maximum no sensors, and orifices; arrows indicating 7.102 Exhaust gas cooling efficiency test. load speed specified by the engine proper flow direction; the height 7.103 Safety system control test. manufacturer. relationship of water-cooled 7.104 Internal static pressure test. Intake system. A system connected to components to the surge tank; and the 7.105 Approval marking. the inlet of the diesel engine which proper procedure for filling the cooling 7.106 Post-approval product audit. includes, but is not limited to, the system. 7.107 New technology. intake manifold, the intake flame (4) A drawing(s) showing the relative 7.108 Power package checklist. arrester, the emergency intake air location, identification of components, Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55519 and design of the safety shutdown (d) When all testing has been means to prevent an accumulation of system. completed, the following information static electricity. Static conducting (5) Specific component identification, shall be submitted and become part of materials shall have a total resistance of or specific information including detail the approval documentation: 1 megohm or less, measured with an drawings that identify the (1) The settings of any adjustable applied potential of 500 volts or more. characteristics of the cooling system and devices used to meet the performance Static conducting materials having a safety shutdown system that ensures requirements of this subpart. total resistance greater than 1 megohm compliance with the technical (2) The coolant temperature sensor will be evaluated under the provisions requirements. setting and exhaust gas temperature of § 7.107. (6) Detail drawings of gaskets used to sensor setting used to meet the (e) All V-belts shall be static form flame-arresting paths. performance requirements of this conducting and have a resistance not (7) An assembly drawing showing the subpart. exceeding 6 megohms, when measured location and identification of all intake (3) The minimum allowable low water with a direct current potential of 500 system components from the air cleaner level and the low water sensor setting volts or more. to the engine head. used to meet the performance (f) The engine crankcase breather (8) An assembly drawing showing the requirements of this subpart for systems shall not be connected to the air intake location and identification of all exhaust using a wet exhaust conditioner as the system of the engine. The discharge system components from the engine exhaust flame arrester. from the breather shall be directed away head to the exhaust outlet. (4) The maximum grade on which the from hot surfaces of the engine and (9) Detail drawings of those intake wet exhaust conditioner can be operated exhaust system. and exhaust system components retaining the flame arresting (g) Electrical components on diesel identified in paragraphs (a)(7) and (a)(8) characteristics. power packages shall be certified or of this section that ensure compliance (5) A finalized version of the power approved by MSHA under parts 7, 18, with the technical requirements. An package checklist. 20, and 27 of this chapter. exhaust conditioner assembly drawing (h) Electrical systems on diesel power § 7.98 Technical requirements. packages consisting of electrical shall be provided showing the location, (a) The diesel power package shall use dimensions, and identification of all components, interconnecting wiring, a category A diesel engine approved and mechanical and electrical internal parts, exhaust inlet and outlet, under subpart E of this part with the sensors, and the exhaust gas path protection shall meet the requirements following additional requirements: of parts 7, 18, and 27 of this chapter, as through the exhaust conditioner. If a (1) A hydraulic, pneumatic, or other wet exhaust conditioner is used, the applicable. mechanically actuated starting (i) The diesel power package shall be exhaust conditioner assembly drawing mechanism. Other means of starting equipped with a safety shutdown must also show the location, shall be evaluated in accordance with system which will automatically shut dimensions, and identification of the fill the provisions of § 7.107. off the fuel supply and stop the engine port, drain port, low water check port; (2) If an air compressor is provided, in response to signals from sensors high or normal operating water level; the intake air line shall be connected to indicating— minimum allowable low water level; the engine intake system between the air (1) The coolant temperature limit and the maximum allowable grade that cleaner and the flame arrester. If the air specified in paragraph (b) of this maintains explosion-proof operations. compressor’s inlet air line is not section; (10) A power package checklist which connected to the engine’s intake system, (2) The exhaust gas temperature limit shall consist of a list of specific features it shall have an integral air filter. specified in paragraph (s)(4) of this that must be checked and tests that must (b) The temperature of any external section; be performed to determine if a surface of the diesel power package (3) The minimum allowable low water previously approved diesel power shall not exceed 302 °F (150 °C). level, for a wet exhaust conditioner, as package is in approved condition. Test (1) Diesel power package designs established by tests in § 7.100. procedures shall be specified in using water jacketing to meet this Restarting of the engine shall be sufficient detail to allow the evaluation requirement shall be tested in prevented until the water level in the to be made without reference to other accordance with § 7.101. wet exhaust conditioner has been documents. Illustrations shall be used to (2) Diesel power packages using other replenished above the minimum fully identify the approved techniques will be evaluated under the allowable low water level; and configuration of the diesel power provisions of § 7.107. (4) The presence of other safety package. (3) When using water-jacketed hazards such as high methane (11) Information showing that the components, provisions shall be made concentration, actuation of the fire electrical systems and components meet for positive circulation of coolant, suppression system, etc., if such sensors the requirements of § 7.98. venting of the system to prevent the are included in the safety shutdown (12) A drawing list consisting of a accumulation of air pockets, and system. complete list of those drawings and effective activation of the safety (j) The safety shutdown system shall specifications which show the details of shutdown system before the have the following features: the construction and design of the diesel temperature of the coolant in the jackets (1) A means to automatically disable power package. exceeds the manufacturer’s the starting circuit and prevent (b) Composite drawings specifying the specifications or 212° F (100° C), engagement of the starting mechanism required construction details may be whichever is lower. while the engine is running, or a starting submitted instead of the individual (c) External rotating parts shall not be mechanism constructed of nonsparking drawings in paragraph (a) of this constructed of aluminum alloys materials. section. containing more than 0.6 percent (2) If the design of the safety (c) All documents shall be titled, magnesium. shutdown system requires that the lack dated, numbered, and include the latest (d) If nonmetallic rotating parts are of engine oil pressure must be revision. used, they shall be provided with a overridden to start the engine, the 55520 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations override shall not be capable of (i) Flat surfaces between bolt holes gaskets shall be positively positioned, overriding any of the safety shutdown that form any part of a flame-arresting and a means shall be provided to sensors specified in paragraph (i) of this path shall be planed to within a preclude improper installation. When section. maximum deviation of one-half the the joint is completely assembled, it (k) The diesel power package shall be maximum clearance specified in shall be impossible to insert a 0.0015- explosion-proof as determined by the paragraph (q)(7) of this section. All inch thickness gauge to a depth tests set out in § 7.100. metal surfaces forming a flame-arresting exceeding 1⁄8-inch between the gasket (l) Engine joints that directly or path shall be finished during the and mating flanges. Other gasket designs indirectly connect the combustion manufacturing process to not more than shall be evaluated in accordance with chamber to the surrounding atmosphere 250 microinches. § 7.107. shall be explosion-proof in accordance (ii) A means shall be provided to (q) The following construction with paragraphs (m) through (q) of this ensure that fastenings maintain the requirements shall apply to flame- section and § 7.100. This paragraph does tightness of joints. The means provided arresting paths formed without gaskets: shall not lose its effectiveness through not apply to the following: (1) Flat surfaces between fastening repeated assembly and disassembly. (1) Pistons to piston rings; holes that form any part of a flame- (2) Pistons to cylinder walls; (iii) Fastenings shall be as uniform in size as practicable to preclude improper arresting path shall be planed to within (3) Piston rings to cylinder walls; a maximum deviation of one-half the (4) Cylinder head to cylinder block; assembly. (iv) Holes for fastenings shall not maximum clearance specified in (5) Valve stem to valve guide; or penetrate to the interior of an intake or paragraph (q)(7) of this section. All (6) Injector body to cylinder head. exhaust system and shall be threaded to metal surfaces forming a flame-arresting (m) Each segment of the intake system ensure that all specified bolts or screws path shall be finished during the and exhaust system required to provide will not bottom even if the washers are manufacturing process to not more than explosion-proof features shall be omitted. 250 microinches. A thin film of constructed of metal and designed to (v) Fastenings used for joints of flame- nonhardening preparation to inhibit withstand a minimum internal pressure arresting paths on intake or exhaust rusting may be applied to these finished equal to four times the maximum systems shall be used only for attaching metal surfaces, as long as the final pressure observed in that segment in parts that are essential in maintaining surface can be readily wiped free of any tests under § 7.100 or a pressure of 150 the explosion-proof integrity. They shall foreign materials. psig, whichever is less. Castings shall be not be used for attaching brackets or (2) A means shall be provided to free from blowholes. other parts. ensure that fastenings maintain the (n) Welded joints forming the (vi) The minimum thickness of tightness of joints. The means provided explosion-proof intake and exhaust 1 material for flanges shall be ⁄2-inch, shall not lose its effectiveness through systems shall be continuous and gas- 7 except that a final thickness of ⁄16-inch repeated assembly and disassembly. tight. At a minimum, they shall be made is allowed after machining rolled plate. (3) Fastenings shall be as uniform in in accordance with American Welding (vii) The maximum fastening spacing size as practicable to preclude improper Society Standard D14.4–77 or meet the shall be 6 inches. assembly. test requirements of § 7.104 with the (viii) The minimum diameter of (4) Holes for fastenings shall not internal pressure equal to four times the 3 fastenings shall be ⁄8-inch, except penetrate to the interior of an intake or maximum pressure observed in tests smaller diameter fastenings may be used under § 7.100 or a pressure of 150 psig, exhaust system and shall be threaded to if the joint first meets the requirements ensure that all specified bolts or screws whichever is less. of the static pressure test in § 7.104, and (o) Flexible connections shall be will not bottom even if the washers are the explosion test in § 7.100. omitted. permitted in segments of the intake and (ix) The minimum thread engagement exhaust systems required to provide of fastenings shall be equal to or greater (5) Fastenings used for joints of flame- explosion-proof features, provided that than the nominal diameter of the arresting paths on intake or exhaust failure of the connection activates the fastenings specified, or the intake or systems shall be used only for attaching safety shutdown system before the exhaust system must meet the test parts that are essential in maintaining explosion-proof characteristics are lost. requirements of the explosion tests in the explosion-proof integrity. They shall (p) Flame-arresting paths in the intake § 7.100 and the static pressure test in not be used for attaching brackets or and exhaust systems shall be formed § 7.104. other parts. either by— (x) The minimum contact surface of (6) The flame-arresting path of (1) Flanged metal to metal joints gaskets forming flame-arresting paths threaded joints shall conform to the meeting the requirements of paragraph shall be 3⁄8-inch, and the thickness of requirements of paragraph (q)(7) of this (q) of this section; or the gaskets shall be no greater than 1⁄16- section. (2) Metal flanges fitted with metal inch. The minimum distance from the (7) Intake and exhaust systems joints gaskets and meeting the following interior edge of a gasket to the edge of shall meet the specifications set out in requirements: a fastening hole shall be 3⁄8-inch. The Table F–1.

TABLE F±1.ÐDIMENSIONAL REQUIREMENTS FOR EXPLOSION-PROOF INTAKE AND EXHAUST SYSTEM JOINTS

Minimum thickness of material for flanges ...... 1¤2′′ 1 Minimum width of joint; all in one plane ...... 1′′ Maximum clearance; joint all in one plane ...... 0.004′′ Minimum width of joint, portions of which are different planes; cylinders or equivalent ...... 3¤4′′ 2 Maximum clearances; joint in two or more planes, cylinders or equivalent: Portion perpendicular to plane ...... 0.008′′ 3 Plane portion ...... 0.006′′ Maximum fastening 4 spacing; joints all in one plane 5 ...... 6′′ Maximum fastening spacing; joints, portions of which are in different planes ...... 8′′ Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55521

TABLE F±1.ÐDIMENSIONAL REQUIREMENTS FOR EXPLOSION-PROOF INTAKE AND EXHAUST SYSTEM JOINTSÐContinued

Minimum diameter of fastening (without regard to type of joint) 6 ...... 3¤8′′ Minimum thread engagement of fastening 7 ...... 1¤16′′ Maximum diametrical clearance between fastening body and unthreaded holes through which it passes 8 9 10. Minimum distance from interior of the intake or exhaust system to the edge of a fastening hole: 11 Joint-minimum width 1′′ ...... 7¤16′′8 12 Shafts centered by ball or roller bearings: Minimum length of flame-arresting path ...... 1′′ Maximum diametrical clearance ...... 0.030′′ Other cylindrical joints: Minimum length of flame-arresting path ...... 1′′ Maximum diametrical clearance ...... 0.010′′

1 1¤16-inch less is allowable for machining rolled plate. 2 If only two planes are involved, neither portion of a joint shall be less than 1¤8-inch wide, unless the wider portion conforms to the same re- quirements as those for a joint that is all in one plane. If more than two planes are involved (as in labyrinths or tongue-in-groove joints), the com- bined lengths of those portions having prescribed clearances are considered. 3 The allowable diametrical clearance is 0.008-inch when the portion perpendicular to the plane portion is 1¤4-inch or greater in length. If the perpendicular portion is more than 1¤8-inch but less than 1¤4-inch wide, the diametrical clearance shall not exceed 0.006-inch. 4 Studs, when provided, shall bottom in blind holes, be completely welded in place, or have the bottom of the hole closed with a plug secured by weld or braze. Fastenings shall be provided at all corners. 5 The requirements as to diametrical clearance around the fastening and minimum distance from the fastening hole to the inside of the intake or exhaust system apply to steel dowel pins. In addition, when such pins are used, the spacing between centers of the fastenings on either side of the pin shall not exceed 5 inches. 6 Fastening diameters smaller than specified may be used if the joint or assembly meets the test requirements of § 7.104. 7 Minimum thread engagement shall be equal to or greater than the nominal diameter of the fastening specified, or the intake or exhaust sys- tem must meet the test requirements of § 7.104. 8 The requirements as to diametrical clearance around the fastening and minimum distance from the fastening hole to the inside of the intake or exhaust system apply to steel dowel pins. In addition, when such pins are used, the spacing between centers of the fastenings on either side of the pin shall not exceed 5 inches. 9 This maximum clearance only applies when the fastening is located within the flame-arresting path. 10 Threaded holes for fastenings shall be machined to remove burrs or projections that affect planarity of a surface forming a flame-arresting path. 11 Edge of the fastening hole shall include any edge of any machining done to the fastening hole, such as chamfering. 12 f the diametrical clearance for fastenings does not exceed 1¤32-inch, then the minimum distance shall be 1¤4-inch.

(r) Intake system. (1) The intake formed by the plates shall be at least 1 (5) The intake system shall include a system shall include a device between inch wide. The unsupported length of connection between the intake flame the air cleaner and intake flame arrester, the plates shall be short enough that arrester and the engine head for operable from the equipment operator’s permanent deformation resulting from temporary attachment of a device to compartment, to shut off the air supply explosion tests shall not exceed 0.002- indicate the total vacuum in the system. to the engine for emergency purposes. inch. The plates and flame arrester This opening shall be closed by a plug Upon activation, the device must housing shall be an integral unit which or other suitable device that is sealed or operate immediately and the engine cannot be disassembled. locked in place except when in use. shall stop within 15 seconds. (iii) In flame arresters of the crimped (s) Exhaust system. (1) The exhaust (2) The intake system shall include a ribbon type, the dimensions of the core system shall include a flame arrester flame arrester that will prevent an openings shall be such that a plug gauge that will prevent propagation of flame or explosion within the system from 0.018-inch in diameter shall not pass discharge of glowing particles to a propagating to a surrounding flammable through, and the flame-arresting path surrounding flammable mixture. The mixture when tested in accordance with core thickness shall be at least 1 inch. flame arrester shall be constructed of the explosion tests in § 7.100. The flame The core and flame arrester housing corrosion-resistant metal. arrester shall be located between the air shall be an integral unit which cannot (i) If a mechanical flame arrester is cleaner and the intake manifold and be disassembled. used, it shall be positioned so that only shall be attached so that it can be cooled exhaust gas at a maximum removed for inspection or cleaning. The (3) The intake system shall be temperature of 302° F (150° C) will be flame arrester shall be constructed of designed so that improper installation of discharged through it. corrosion-resistant metal and meet the the flame arrester is impossible. (ii) If a mechanical flame arrester of following requirements: (4) The intake system shall include an the spaced-plate type is used, it must (i) Two intake flame arrester designs, air cleaner service indicator. The air meet the requirements of paragraph the spaced-plate type and the crimped cleaner shall be installed so that only (r)(2)(ii) of this section and the test ribbon type, will be tested in accordance filtered air will enter the flame arrester. requirements of § 7.100. Variations to with the requirements of § 7.100. The air cleaner shall be sized and the the spaced-plate flame arrester design Variations to these designs or other service indicator set in accordance with and other mechanical flame arrester intake flame arrester designs will be the engine manufacturer’s designs shall be evaluated under the evaluated under the provisions of recommendations. Unless the service provisions of § 7.107. The flame arrester § 7.107. indicator is explosion-proof, it shall be shall be designed and attached so that (ii) In flame arresters of the spaced- located between the air cleaner and it can be removed for inspection and plate type, the thickness of the plates flame arrester, and the service indicator cleaning. shall be at least 0.125-inch; spacing setting shall be reduced to account for (2) The exhaust system shall allow a between the plates shall not exceed the additional restriction imposed by wet exhaust conditioner to be used as 0.018-inch; and the flame-arresting path the flame arrester. the exhaust flame arrester provided that 55522 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations the explosion tests of § 7.100 exhaust gas exceeds 302° F (150° C) § 7.100 Explosion tests. demonstrate that the wet exhaust when tested in accordance with the (a) Test procedures. (1) Prepare to test conditioner will arrest flame. When safety system control test in § 7.103. A the diesel power package as follows: used as a flame arrester, the wet exhaust means shall be provided to prevent the (i) Perform a detailed check of parts conditioner shall be equipped with a discharge of glowing particles, and it against the drawings and specifications sensor to automatically activate the shall be evaluated under the provisions submitted under § 7.97 to determine safety shutdown system at or above the of § 7.107. that the parts and drawings agree. minimum allowable low water level (5) Other means for cooling the (ii) Remove all parts that do not established by § 7.100. Restarting of the exhaust gas and preventing the contribute to the operation or ensure the engine shall be prevented until the propagation of flame or discharge of explosion-proof integrity of the diesel water supply in the wet exhaust glowing particles shall be evaluated power package such as the air cleaner conditioner has been replenished above under the provisions of § 7.107. and exhaust gas dilution system. the minimum allowable low water level. (6) There shall be a connection in the (iii) Fill coolant system fluid and All parts of the wet exhaust conditioner exhaust system for temporary engine oil to the engine manufacturer’s and associated components that come in attachment of a device to indicate the recommended levels. contact with contaminated exhaust total backpressure in the system and (iv) Interrupt fuel supply to the conditioner water shall be constructed collection of exhaust gas samples. This injector pump. opening shall be closed by a plug or of corrosion-resistant material. The wet (v) Establish a preliminary low water other suitable device that is sealed or exhaust conditioner shall include a level for systems using the wet exhaust locked in place except when in use. means for verifying that the safety conditioner as a flame arrester. shutdown system operates at the proper § 7.99 Critical characteristics. (2) Perform static and dynamic tests of water level. A means shall be provided The following critical characteristics the intake system as follows: for draining and cleaning the wet (i) Install the diesel power package in exhaust conditioner. The final exhaust shall be inspected or tested on each diesel power package to which an an explosion test chamber which is gas temperature at discharge from the large enough to contain the complete wet exhaust conditioner shall not approval marking is affixed: (a) Finish, width, planarity, and diesel power package. The chamber exceed 170° F (76° C) under test clearances of surfaces that form any part must be sufficiently darkened and conditions specified in § 7.102. A sensor of a flame-arresting path. provide viewing capabilities of the shall be provided that activates the (b) Thickness of walls and flanges that flame-arresting paths to allow safety shutdown system before the are essential in maintaining the observation during testing of any exhaust gas temperature at discharge explosion-proof integrity of the diesel discharge of flame or ignition of the from the wet exhaust conditioner power package. flammable mixture surrounding the exceeds 185° F (85° C) under test (c) Size, spacing, and tightness of diesel power package. Couple the diesel conditions specified in § 7.103(a)(4). fastenings. (3) The exhaust system shall be power package to an auxiliary drive (d) The means provided to maintain mechanism. Attach a pressure designed so that improper installation of tightness of fastenings. the flame arrester is impossible. measuring device, a temperature (e) Length of thread engagement on measuring device, and an ignition (4) The exhaust system shall provide fastenings and threaded parts that a means to cool the exhaust gas and source to the intake system. The ensure the explosion-proof integrity of pressure measuring device shall be prevent discharge of glowing particles. the diesel power package. (i) When a wet exhaust conditioner is capable of indicating the peak pressure (f) Diesel engine approval marking. accurate to ±1 pound-per-square inch used to cool the exhaust gas and prevent (g) Fuel rate setting to ensure that it the discharge of glowing particles, the gauge (psig) at 100 psig static pressure is appropriate for the intended and shall have a frequency response of temperature of the exhaust gas at the application, or a warning tag shall be discharge from the exhaust conditioner 40 Hertz or greater. The ignition source ° ° affixed to the fuel system notifying the shall be an electric spark with a shall not exceed 170 F (76 C) when purchaser of the need to make proper tested in accordance with the exhaust minimum energy of 100 millijoules. The adjustments. ignition source shall be located gas cooling efficiency test in § 7.102. A (h) Material and dimensions of immediately adjacent to the intake sensor shall be provided that activates gaskets that are essential in maintaining manifold and the pressure and the safety shutdown system before the the explosion-proof integrity of the temperature devices shall be located exhaust gas temperature at discharge diesel power package. from the wet exhaust conditioner (i) Dimensions and assembly of flame immediately adjacent to the flame ° ° exceeds 185 F (85 C) when tested in arresters. arrester. accordance with the safety system (j) Materials of construction to ensure (ii) For systems using the wet exhaust controls test in § 7.103. All parts of the that the intake system, exhaust system, conditioner as an exhaust flame arrester, wet exhaust conditioner and associated cooling fans, and belts have been fill the exhaust conditioner to the components that come in contact with fabricated from the required material. specified high or normal operating contaminated exhaust conditioner water (k) Proper interconnection of the water level. shall be constructed of corrosion- coolant system components and use of (iii) Fill the test chamber with a resistant material. specified components. mixture of natural gas and air or (ii) When a dry exhaust conditioner is (l) Proper interconnection of the methane and air. If natural gas is used, used to cool the exhaust gas, the safety shutdown system components the content of combustible temperature of the exhaust gas at and use of specified components. hydrocarbons shall total at least 98.0 discharge from the diesel power package (m) All plugs and covers to ensure percent, by volume, with the remainder shall not exceed 302° F (150° C) when that they are tightly installed. being inert. At least 80.0 percent, by tested in accordance with the exhaust (n) The inspections and tests volume, of the gas shall be methane. For gas cooling efficiency test of § 7.102. A described in the diesel power package all tests, the methane or natural gas sensor shall be provided that activates checklist shall be performed and all concentration shall be 8.5≤1.8 percent, the safety shutdown system before the requirements shall be met. by volume, and the oxygen Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55523 concentration shall be no less than 18 (C) Install a temperature device (v) A determination shall be made of percent, by volume. immediately adjacent to the exhaust the maximum grade on which the wet (iv) Using the auxiliary drive conditioner inlet. exhaust conditioner can be operated mechanism, motor the engine to fill the (ii) If the exhaust system is provided retaining the flame-arresting intake and exhaust systems with the with a spaced-plate flame arrester in characteristics. flammable mixture. The intake system, addition to an exhaust conditioner, (b) Acceptable performance. The exhaust system, and test chamber gas explosion tests of the exhaust system explosion tests shall not result in any of concentration shall not differ by more shall be performed as described for the the following— than ≤0.3 percent, by volume, at the intake system in accordance with this (1) Discharge of flame or glowing time of ignition. section. Water shall not be present in a particles. (v) For static tests, stop the engine, wet exhaust conditioner for the tests. (2) Visible discharge of gas through actuate the ignition source, and observe (iii) If the wet exhaust conditioner is gasketed joints. the peak pressure. The peak pressure used as the exhaust flame arrester, (3) Ignition of the flammable mixture shall not exceed 110 psig. If the peak explosion testing of this type of system in the test chamber. pressure exceeds 110 psig, construction shall be performed as described for the (4) Rupture of any part that affects the changes shall be made that result in a intake system in accordance with this explosion-proof integrity. reduction of pressure to 110 psig or less, section with the following (5) Clearances, in excess of those or the system shall be tested in modifications: specified in this subpart, along accordance with the static pressure test (A) Twenty static tests, twenty accessible flame-arresting paths, of § 7.104 with the pressure parameter dynamic tests at 1800 ± 200 RPM, and following any necessary retightening of replaced with a static pressure of twice twenty dynamic tests at 1000≤200 RPM fastenings. the highest value recorded. shall be conducted at 2 inches below the (6) Pressure exceeding 110 psig, (vi) If the peak pressure does not minimum allowable low water level. All unless the intake system or exhaust exceed 110 psig or if the system meets entrances in the wet exhaust system has withstood a static pressure the static pressure test requirements of conditioner which do not form of twice the highest value recorded in this section and there is no discharge of explosion-proof joints shall be opened. the explosion tests of this section visible flames or glowing particles or These openings may include lines following the static pressure test ignition of the flammable mixture in the which connect the reserve water supply procedures of § 7.104. chamber, a total of 20 tests shall be to the wet exhaust conditioner, insert (7) Permanent distortion of any planar conducted in accordance with the flanges, float flanges, and cover plates. surface of the diesel power package explosion test specified above. These entrances are opened during this exceeding 0.04-inches/linear foot. (vii) For dynamic tests, follow the test to verify that they are not flame (8) Permanent deformation exceeding same procedures for static tests, except paths. 0.002-inch between the plates of spaced- actuate the ignition source while (B) Twenty static tests, twenty plate flame arrester designs. motoring the engine. Forty dynamic dynamic tests at 1800± 200 RPM rated tests shall be conducted at two speeds, speed, and twenty dynamic tests at § 7.101 Surface temperature tests. twenty at 1800≤200 RPM and twenty at 1000≤200 RPM shall be conducted at 2 The test for determination of exhaust 1000≤200 RPM. Under some inches below the minimum allowable gas cooling efficiency described in circumstances, during dynamic testing low water level. All entrances in the wet § 7.102 may be done simultaneously the flammable mixture may continue to exhaust conditioner (except the exhaust with this test. burn within the diesel power package conditioner outlet) which do not form (a) Test procedures. (1) Prepare to test after ignition. This condition can be explosion-proof joints shall be closed. the diesel power package as follows: recognized by the presence of a These openings are closed to simulate (i) Perform a detailed check of parts rumbling noise and a rapid increase in normal operation. against the drawings and specifications temperature. This can cause the flame- (C) Twenty static tests, twenty submitted to MSHA under compliance arrester to reach temperatures which dynamic tests at 1800≤200 RPM rated with § 7.97 to determine that the parts can ignite the surrounding flammable speed, and twenty dynamic tests at and drawings agree. mixture. Ignition of the flammable 1000≤200 RPM shall be conducted at (ii) Fill the coolant system with a mixture in the test chamber under these the specified high or normal operating mixture of equal parts of antifreeze and circumstances does not constitute water level. All entrances in the wet water, following the procedures failure of the flame arrester. However; if exhaust conditioner which do not form specified in the application, § 7.97(a)(3). this condition is observed, the test explosion-proof joints shall be opened. (iii) If a wet exhaust conditioner is operator should immediately stop the (D) Twenty static tests, twenty used to cool the exhaust gas, fill the engine and allow components to cool to dynamic tests at 1800≤200 RPM, and exhaust conditioner to the high or prevent damage to the components. twenty dynamic tests at 1000≤200 RPM normal operating water level and have (3) Perform static and dynamic tests of shall be conducted at the specified high a reserve water supply available, if the exhaust system as follows: or normal operating water level. All applicable. (i) Prepare the diesel power package entrances in the wet exhaust (2) Tests shall be conducted as for explosion tests according to conditioner (except the exhaust follows: § 7.100(a)(2)(i) as follows: conditioner outlet) which do not form (i) The engine shall be set to the rated (A) Install the ignition source explosion-proof joints shall be closed. horsepower specified in § 7.97(a)(2). immediately adjacent to the exhaust (iv) After successful completion of the (ii) Install sufficient temperature manifold. explosion tests of the exhaust system, measuring devices to determine the (B) Install pressure measuring devices the minimum allowable low water level, location of the highest coolant in each segment as follows: immediately for a wet exhaust conditioner used as temperature. The temperature adjacent to the exhaust conditioner the exhaust flame arrester, shall be measuring devices shall be accurate to inlet; in the exhaust conditioner; and determined by adding two inches to the ±4 °F (±2 °C). immediately adjacent to the flame lowest water level that passed the (iii) Operate the engine at rated arrester, if applicable. explosion tests. horsepower and with 0.5±0.1 percent, 55524 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations by volume, of methane in the intake air temperature in the cooling jackets (7) Determine the total air inlet mixture until all parts of the engine, exceeds manufacturer’s specifications or restriction of the complete intake exhaust coolant system, and other 212 °F (100 °C), whichever is lower, by system, including the air cleaner, as components reach their respective operating the engine and causing the measured between the intake flame equilibrium temperatures. The liquid coolant in the cooling jackets to exceed arrester and the engine head with the fuel temperature into the engine shall be the specified temperature. engine operating at maximum air flow. maintained at 100 °F (38 °C) ±10 °F (6 (3) For systems using a dry exhaust (8) Determine the total exhaust °C) and the intake air temperature shall gas conditioner, determine the backpressure with the engine operating be maintained at 70 °F (21 °C) ±5 °F (3 effectiveness of the temperature sensor at rated horsepower as specified in °C). in the exhaust gas stream which will § 7.103(a)(7). If a wet exhaust (iv) Increase the coolant system automatically activate the safety conditioner is used, it must be filled to temperatures until the highest coolant shutdown system and stop the engine the high or normal operating water level temperature is 205 °F to 212 °F (96 °C before the cooled exhaust gas during this test. ° ° to 100 °C), or to the maximum temperature exceeds 302 F (150 C), by (9) The starting mechanism shall be temperature specified by the applicant, operating the engine and causing the tested to ensure that engagement is not if lower. cooled exhaust gas to exceed the possible while the engine is running. (v) After all coolant system specified temperature. Operate the engine and attempt to temperatures stabilize, operate the (4) For systems using a wet exhaust engage the starting mechanism. engine for 1 hour. conditioner, determine the effectiveness (10) Where the lack of engine oil (vi) The ambient temperature shall be of the temperature sensor in the exhaust pressure must be overridden in order to between 50 °F (10 °C) and 104 °F (40 °C) gas stream which will automatically start the engine, test the override to throughout the tests. activate the safety shutdown system and ensure that it does not override any of (b) Acceptable performance. The stop the engine before the cooled ° the safety shutdown sensors specified in surface temperature of any external exhaust gas temperature exceeds 185 F ° § 7.98(i). After each safety shutdown surface of the diesel power package (85 C), with the engine operating at a sensor test specified in paragraphs (a)(2) shall not exceed 302 °F (150 °C) during high idle speed condition. Temporarily through (a)(5) of this section, disable the reserve water supply, if the test. immediately override the engine oil applicable, and any safety shutdown pressure and attempt to restart the § 7.102 Exhaust gas cooling efficiency system control that might interfere with engine. test. the evaluation of the operation of the (b) Acceptable performance. Tests of (a) Test procedures. (1) Follow the exhaust gas temperature sensor. Prior to the safety system controls shall result in procedures specified in § 7.101(a). testing, set the water level in the wet the following: (2) Install a temperature measuring exhaust conditioner to a level just above device to measure the exhaust gas the minimum allowable low water level. (1) The coolant system temperature temperature at discharge from the Run the engine until the exhaust gas shutdown sensor shall automatically exhaust conditioner. The temperature temperature sensor activates the safety activate the safety shutdown system and measuring device shall be accurate to ±4 shutdown system and stops the engine. stop the engine before the water °F (±2 °C). (5) For systems using a wet exhaust temperature in the cooling jackets conditioner as an exhaust flame arrester, exceeds manufacturer’s specifications or (3) Determine the exhaust gas ° ° temperature at discharge from the determine the effectiveness of the low 212 F (100 C), whichever is lower. exhaust conditioner before the exhaust water sensor which will automatically (2) The temperature sensor in the gas is diluted with air. activate the safety shutdown system and exhaust gas stream of a system using a (b) Acceptable performance. stop the engine at or above the dry exhaust conditioner shall (1) The exhaust gas temperature at minimum allowable low water level automatically activate the safety discharge from a wet exhaust established from results of the explosion shutdown system and stop the engine tests in § 7.100 with the engine before the cooled exhaust gas exceeds conditioner before the exhaust gas is ° ° diluted with air shall not exceed 170 °F operating at a high idle speed condition. 302 F (150 C). (76 °C). Temporarily disable the reserve water (3) The temperature sensor in the (2) The exhaust gas temperature at supply, if applicable, and any safety exhaust gas stream of a system using a discharge from a dry exhaust shutdown system control that might wet exhaust conditioner shall conditioner before the gas is diluted interfere with the evaluation of the automatically activate the safety with air shall not exceed 302 °F (150 operation of the low water sensor. Prior shutdown system and stop the engine °C). to testing, set the water level in the wet before the cooled exhaust gas exceeds exhaust conditioner to a level just above 185 °F (85 °C). § 7.103 Safety system control test. the minimum allowable low water level. (4) The low water sensor for systems (a) Test procedures. (1) Prior to Run the engine until the low water using a wet exhaust conditioner shall testing, perform the tasks specified in sensor activates the safety shutdown automatically activate the safety § 7.101(a)(1) and install sufficient system and stops the engine. Measure shutdown system and stop the engine at temperature measuring devices to the low water level. Attempt to restart or above the minimum allowable low measure the highest coolant temperature the engine. water level and prevent restarting of the and exhaust gas temperature at (6) Determine the effectiveness of the engine. discharge from the exhaust conditioner. device in the intake system which is (5) The emergency intake air shutoff The temperature measuring devices designed to shut off the air supply and device shall operate immediately when shall be accurate to ±4 °F (±2 °C). stop the engine for emergency purposes activated and stop the engine within 15 (2) Determine the effectiveness of the with the engine operating at both a high seconds. coolant system temperature shutdown idle speed condition and a low idle (6) The total intake air inlet restriction sensors which will automatically speed condition. Run the engine and and the total exhaust backpressure shall activate the safety shutdown system and activate the emergency intake air shutoff not exceed the engine manufacturer’s stop the engine before the coolant device. specifications. Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55525

(7) It shall not be possible to engage § 7.107 New technology. assembly and that seeks a certificate of the starting mechanism while the engine MSHA may approve a diesel power approval or preliminary testing of is running, unless the starting package that incorporates technology for mobile diesel-powered transportation mechanism is constructed of which the requirements of this subpart equipment as permissible. nonsparking material. are not applicable if MSHA determines Certificate of approval. A formal (8) The engine oil pressure override that the diesel power package is as safe document issued by MSHA stating that shall not override any of the shutdown as those which meet the requirements of the complete assembly has met the sensors. this subpart. requirements of this part for mobile diesel-powered transportation § 7.104 Internal static pressure test. § 7.108 Power package checklist. equipment and authorizing the use and (a) Test procedures. (1) Isolate and Each diesel power package bearing an attachment of an official approval plate seal each segment of the intake system MSHA approval plate shall be so indicating. or exhaust system to allow accompanied by a power package Component. A piece, part, or fixture pressurization. checklist. The power package checklist of mobile diesel-powered transportation (2) Internally pressurize each segment shall consist of a list of specific features equipment that is essential to its of the intake system or exhaust system that must be checked and tests that must operation as a permissible assembly. to four times the maximum pressure be performed to determine if a Diesel engine. A compression- observed in each segment during the previously approved diesel power ignition, internal-combustion engine tests of § 7.100, or 150 psig ± 5 psig, package is in approved condition. Test that utilizes diesel fuel. whichever is less. Maintain the pressure procedures shall be specified in Explosion proof. A component or for a minimum of 10 seconds. sufficient detail to allow evaluation to subassembly that is so constructed and (3) Following the pressure hold, the be made without reference to other protected by an enclosure and/or flame pressure shall be removed and the documents. Illustrations shall be used to arrester (s) that if a flammable mixture pressurizing agent removed from the fully identify the approved of gas is ignited within the enclosure it intake system or exhaust system. configuration of the diesel power will withstand the resultant pressure (b) Acceptable performance. (1) The package. without damage to the enclosure and/or intake system or exhaust system, during flame arrester(s). Also the enclosure pressurization, shall not exhibit— PARTS 31ÐDIESEL MINE and/or flame arrester(s) shall prevent (i) Leakage through welds and LOCOMOTIVES [REMOVED] the discharge of flame or ignition of any gasketed joints; or 3. Part 31 is removed. flammable mixture that surrounds the (ii) Leakage other than along joints enclosure. meeting the explosion-proof PART 32ÐMOBILE DIESEL-POWERED Flame arrester. A device so requirements of § 7.98(q). EQUIPMENT FOR NONCOAL MINES constructed that flame or sparks from (2) Following removal of the [REMOVED] the diesel engine cannot propagate an pressurizing agent, the intake system or explosion of a flammable mixture exhaust system shall not exhibit any— 4. Part 32 is removed. through it. (i) Changes in fastening torque; Flammable mixture. A mixture of gas, (ii) Visible cracks in welds; PART 36Ð[AMENDED] such as methane, natural gas, or similar (iii) Permanent deformation affecting 5. The authority for part 36 continues hydrocarbon gas with normal air, that the length or gap of any flame-arresting as follows: will propagate flame or explode paths; violently when initiated by an Authority: 30 U.S.C. 957, 961. (iv) Stretched or bent fastenings; incendive source. (v) Damaged threads of parts affecting 6. The heading of part 36 is revised Fuel-air ratio. The composition of the the explosion-proof integrity of the to read as follows: mixture of fuel and air in the intake system or exhaust system; or combustion chamber of the diesel (vi) Permanent distortion of any PART 36ÐAPPROVAL engine expressed as weight-pound of planar surface of the diesel power REQUIREMENTS FOR PERMISSIBLE fuel per pound of air. package exceeding 0.04-inches/linear MOBILE DIESEL-POWERED MSHA. The United States Department foot. TRANSPORTATION EQUIPMENT. of Labor, Mine Safety and Health Administration. § 7.105 Approval marking. 7. Section 36.1 is revised to read as follows: Mobile diesel-powered transportation Each approved diesel power package equipment. Equipment that is: shall be identified by a legible and § 36.1 Purpose. (1) Used for transporting the product permanent approval plate inscribed The regulations in this part set forth being mined or excavated, or for with the assigned MSHA approval the requirements for mobile diesel- transporting materials and supplies number and securely attached to the powered transportation equipment to used in mining or excavating diesel power package in a manner that procure their approval and certification operations; does not impair any explosion-proof as permissible; procedures for applying (2) Mounted on wheels or crawler characteristics. The grade limitation of a for such certification; and fees. treads (tracks); and wet exhaust conditioner used as an 8. Section 36.2 is revised to read as (3) Powered by a diesel engine as the exhaust flame arrester shall be included follows: prime mover. on the approval marking. Normal operation. When each § 36.2 Definitions. component and the entire assembly of § 7.106 Post-approval product audit. The following definitions apply in the mobile diesel-powered Upon request by MSHA, but not more this part. transportation equipment performs the than once a year except for cause, the Applicant An individual, partnership, functions for which they were designed. approval-holder shall make an approved company, corporation, association, or Permissible. As applied to mobile diesel power package available for audit other organization, that designs, diesel-powered transportation at no cost to MSHA. manufactures, assembles, or controls the equipment, this means that the 55526 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations complete assembly conforms to the MSHA while completely surrounded by a percent of the threshold limit values requirements of this part, and that a flammable mixture. MSHA reserves the right (TLV) adopted by the American certificate of approval to that effect has to apply combustible materials to any surface Conference of Governmental Industrial been issued. for test. Operation under such conditions Hygienists, the mine operator shall shall not ignite the flammable mixture. Subassembly. A group or combination immediately take appropriate corrective of components. PART 70Ð[AMENDED] action to reduce the concentrations of 9. Section 36.6, paragraphs (b)(2), CO and/or NO2 to below the applicable (b)(3), and (b)(4) are amended by 15. The authority citation for part 70 action level. The publication, inserting the phrase ‘‘Except for continues to read as follows: ‘‘Threshold Limit Values for Substance equipment utilizing part 7, subpart F Authority: 30 U.S.C. 811, 813(h), 957, and in Workroom Air’’ (1972) is power packages,’’ at the beginning of the 961. incorporated by reference and may be first sentence of each paragraph. 16. Subparts G–S are reserved and a inspected at MSHA’s Office of 10. Section 36.9 is amended by Standards, Regulations, and Variances, revising the third sentence of paragraph new subpart T is added to part 70 to read as follows: 4015 Wilson Boulevard, Arlington, VA (a) to read as follows: 22203; at any Coal Mine Health and * * * * * § 36.9 Conduct of investigations, tests, Safety District and Subdistrict Office; and demonstrations. Subpart TÐDiesel Exhaust Gas and at the Office of the Federal Register, (a) * * * After the issuance of a Monitoring 800 North Capitol Street, NW Suite 700, certificate of approval, MSHA may Washington, DC. This incorporation by conduct such public demonstrations Sec. reference was approved by the Director and tests of the approved mobile diesel- 70.1900 Exhaust Gas Monitoring of the Federal Register in accordance powered transportation equipment as it with 5 U.S.C. 552(a) and 1 CFR part 51. SUBPART TÐDIESEL EXHAUST GAS deems appropriate. * ** In addition, copies of the document may MONITORING * * * * * be purchased from the Secretary- 11. Section 36.20, paragraphs (b) is § 70.1900 Exhaust Gas Monitoring. Treasurer, American Conference of Governmental Industrial Hygienists, revised and paragraph (c) is added to (a) During on-shift examinations Post Office Box 1937, Cincinnati, OH read as follows: required by § 75.362, a certified person 45202. § 36.20 Quality of material, workmanship, as defined by § 75.100 of this chapter (d) A record shall be made when and design. and designated by the operator as sampling results exceed the action level trained or experienced in the * * * * * for the applicable TLV for CO and/or appropriate sampling procedures, shall (b) The quality of material, NO . The record shall be made as part determine the concentration of carbon 2 workmanship, and design shall conform of and in the same manner as the monoxide (CO) and nitrogen dioxide to the requirements of § 7.98(q) of this records for hazards required by § 75.363 (NO chapter. 2): of this chapter and include the (1) In the return of each working (c) Power packages approved under following: part 7, subpart F of this chapter are section where diesel equipment is used, (1) Location where each sample was considered to be acceptable for use in at a location which represents the collected; equipment submitted for approval contribution of all diesel equipment on (2) Substance sampled and the under this part. Sections 36.21 through such section; measured concentration; and 36.26 (except § 36.25(f)) and §§ 36.43 (2) In the area of the section loading (3) Corrective action taken to reduce point if diesel haulage equipment is through 36.48 are not applicable to the concentration of CO and/or NO2 to equipment utilizing part 7, subpart F operated on the working section; or below the applicable action level. power packages, since these (3) At a point inby the last piece of (e) As of November 25, 1997 exhaust requirements have already been diesel equipment on the longwall or gas monitoring shall be conducted in satisfied. shortwall face when mining equipment accordance with the requirements of 12. Section 36.21 is amended by is being installed or removed; and this section. revising the first sentence to read as (4) In any other area designated by the follows: district manager as specified in the mine PART 75Ð[AMENDED] operator’s approved ventilation plan § 36.21 Engine for equipment considered where diesel equipment is operated in 17. The authority citation for part 75 for certification. a manner which can result in significant continues to read as follows: Only equipment powered by a concentrations of diesel exhaust. Authority: 30 U.S.C. 811. compression-ignition (diesel) engine (b) Samples of CO and NO2 shall be— 18. New paragraphs (f) through (k) are and burning diesel fuel will be (1) Collected in a manner that makes added to § 75.325 to read as follows: considered for approval and the results available immediately to the certification. *** person collecting the samples; § 75.325 Air quantity. 13. Section 36.43 is amended by (2) Collected and analyzed by * * * * * removing the phrase ‘‘in underground appropriate instrumentation which has (f) The minimum ventilating air gassy noncoal mines and tunnels’’ from been maintained and calibrated in quantity for an individual unit of diesel- the last sentence of paragraph (a). accordance with the manufacturer’s powered equipment being operated 14. The note of § 36.48 is revised to recommendations; and shall be at least that specified on the read as follows: (3) Collected during periods that are approval plate for that equipment. Such § 36.48 Tests of surface temperature of representative of conditions during air quantity shall be maintained— engine and components of the cooling normal operations. (1) In any working place where the system. (c) Except as provided in § 75.325(j) of equipment is being operated; * * * * * this chapter, when sampling results (2) At the section loading point during Note to § 36.48: The engine may be indicate a concentration of CO and/or any shift the equipment is being operated under test conditions prescribed by NO2 exceeding an action level of 50 operated on the working section; Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55527

(3) In any entry where the equipment will maintain continuous compliance (kk) Areas designated by the district is being operated outby the section with applicable TLV’s. Action levels manager where measurements of CO loading point in areas of the mine other than those specified in and NO2 concentrations will be made developed on or after April 25, 1997; § 70.1900(c) shall be specified in the (see § 70.1900(a)(4)). (4) In any air course with single or approved ventilation plan. (ll) Location where the air quantity multiple entries where the equipment is (k) As of November 25, 1977 the will be maintained at the section being operated outby the section loading ventilating air quantity required where loading point (see § 75.325(f)(2)). point in areas of the mine developed diesel-powered equipment is operated (mm) Any additional location(s) prior to April 25, 1997; and shall meet the requirements of required by the district manager where (5) At any other location required by paragraphs (f) through (j) of this section. a minimum air quantity must be the district manager and specified in the Mine operators utilizing diesel-powered maintained for an individual unit of approved ventilation plan. equipment in underground coal mines diesel-powered equipment. (see (g) The minimum ventilating air shall submit to the appropriate MSHA § 75.325(f)(5)). quantity where multiple units of diesel- district manager a revised ventilation (nn) The minimum air quantities that powered equipment are operated on plan or appropriate amendments to the will be provided where multiple units working sections and in areas where existing plan, in accordance with of diesel-powered equipment are mechanized mining equipment is being § 75.371, which implement the operated (see § 75.325(g) (1)–(3) and (i)). installed or removed must be at least the requirements of paragraphs (f) through (oo) The diesel-powered mining sum of that specified on the approval (j) of this section. equipment excluded from the plates of all the diesel-powered 19. Section 75.342 is amended by calculation under § 75.325(g). (see equipment on the working section or in revising paragraph (b)(2) and the § 75.325(h)). the area where mechanized mining introductory text of paragraph (c) to (pp) Action levels higher than the 50 equipment is being installed or read as follows: percent level specified by § 70.1900(c). removed. The minimum ventilating air (see § 75.325(j)). quantity shall be specified in the § 75.342 Methane monitors. 23. Section 75.380 is amended by approved ventilation plan. For working * * * * * removing paragraph (f)(3)(i) and by sections such air quantity must be (b)(1) * * * redesignating paragraphs (f)(3)(ii) maintained— (2) The warning signal device of the through (f)(3)(v) as paragraphs (f)(3)(i) (1) In the last open crosscut of each methane monitor shall be visible to a through (f)(3)(iv). set of entries or rooms in each working person who can deenergize electric 24. Section 75.400 is revised to read section; equipment or shut down diesel-powered as follows: (2) In the intake, reaching the working equipment on which the monitor is face of each longwall; and mounted. § 75.400 Accumulation of combustible (3) At the intake end of any pillar line. (c) The methane monitor shall materials. (h) The following equipment may be automatically deenergize electric Coal dust, including float coal dust excluded from the calculations of equipment or shut down diesel-powered deposited on rock-dusted surfaces, loose ventilating air quantity under paragraph equipment on which it is mounted coal, and other combustible materials, (g) if such equipment exclusion is when— shall be cleaned up and not be approved by the district manager and * * * * * permitted to accumulate in active specified in the ventilation plan: 20. Section 75.344 is amended by workings, or on diesel-powered and (1) Self-propelled equipment meeting removing paragraph (d) and electric equipment therein. the requirements of § 75.1908(b); redesignating paragraph (e) as new 25. Section 75.1710 is revised to read (2) Equipment that discharges its paragraph (d). as follows: exhaust into intake air that is coursed 21. Section 75.360 is amended by § 75.1710 Canopies or cabs; diesel- directly to a return air course; revising paragraph (b)(7) as follows: powered and electric face equipment. (3) Equipment that discharges its exhaust directly into a return air course; § 75.360 Preshift Examination. In any coal mine where the height of and * * * * * the coalbed permits, an authorized (4) Other equipment having duty (b) * * * representative of the Secretary may cycles such that the emissions would (7) Areas where trolley wires or require that diesel-powered and electric not significantly affect the exposure of trolley feeder wires are to be or will face equipment, including shuttle cars, miners. remain energized during the oncoming be provided with substantially (i) A ventilating air quantity that is shift. constructed canopies or cabs to protect less than what is required by paragraph * * * * * the miners operating such equipment (g) of this section may be approved by 22. Section 75.371 is amended by from roof falls and from rib and face the district manager in the ventilation revising paragraph (r) and adding new rolls. plan based upon the results of sampling paragraphs (kk), (ll), (mm), (nn), (oo), 26. Section 75.1710–1 is amended by that demonstrate that the lesser air and (pp) to read as follows: replacing the phrase ‘‘electric face quantity will maintain continuous equipment’’ with ‘‘diesel-powered and compliance with applicable TLV’s. § 75.371 Mine ventilation plan; contents. electric face equipment’’ in the title and (j) If during sampling required by * * * * * in paragraphs (a) and (f). § 70.1900(c) of this subchapter the (r) The minimum quantity of air that 27. A new subpart T is added to part ventilating air is found to contain will be provided during the installation 75 to read as follows: concentrations of CO or NO2 in excess and removal of mechanized mining Subpart TÐDiesel-Powered Equipment of the action level specified by equipment, the location where this quantity will be provided, and the Sec. § 70.1900(c), higher action levels may be 75.1900 Definitions. approved by the district manager based ventilation controls that will be used 75.1901 Diesel fuel requirements. on the results of sampling that (see § 75.325(d), (g), and (i)). 75.1902 Underground diesel fuel storage— demonstrate that a higher action level * * * * * general requirements. 55528 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations

75.1903 Underground diesel fuel storage constructed to remain at one location for parked in the temporary underground facilities and areas; construction and the storage or dispensing of diesel fuel, diesel fuel storage area. safety precautions. which does not move as mining (d) Permanent underground diesel 75.1904 Underground diesel fuel tanks and progresses. fuel storage facilities and temporary safety cans. Safety can. A metal container underground diesel fuel storage areas 75.1905 Dispensing of diesel fuel. 75.1905–1 Diesel fuel piping systems. intended for storage, transport or must be— 75.1906 Transport of diesel fuel. dispensing of diesel fuel, with a (1) At least 100 feet from shafts, 75.1907 Diesel-powered equipment nominal capacity of 5 gallons, listed or slopes, shops, or explosives magazines; intended for use in underground coal approved by a nationally recognized (2) At least 25 feet from trolley wires mines. independent testing laboratory. or power cables, or electric equipment 75.1908 Nonpermissible diesel-powered Temporary underground diesel fuel not necessary for the operation of the equipment-categories. storage area. An area of the mine storage facilities or areas; and 75.1909 Nonpermissible diesel-powered provided for the short-term storage of (3) In a location that is protected from equipment; design and performance diesel fuel in a fuel transportation unit, damage by other mobile equipment. requirements. which moves as mining progresses. (e) Permanent underground diesel 75.1910 Nonpermissible diesel-powered equipment; electrical system design and fuel storage facilities must not be § 75.1901 Diesel fuel requirements. located within the primary escapeway. performance requirements. (a) Diesel-powered equipment shall be 75.1911 Fire suppression systems for § 75.1903 Underground diesel fuel storage diesel-powered equipment and diesel used underground only with a diesel facilities and areas; construction and safety fuel transportation units. fuel having a sulfur content no greater precautions. 75.1912 Fire suppression systems for than 0.05 percent and a flash point of permanent underground diesel fuel 100° F (38° C) or greater. Upon request, (a) Permanent underground diesel storage facilities. the mine operator shall provide to an fuel storage facilities must be— 75.1913 Starting aids. authorized representative of the (1) Constructed of noncombustible 75.1914 Maintenance of diesel-powered Secretary evidence that the diesel fuel materials, including floors, roofs, roof equipment. purchased for use in diesel-powered supports, doors, and door frames. 75.1915 Training and qualification of equipment underground meets these Exposed coal within fuel storage areas persons working on diesel-powered must be covered with noncombustible equipment. requirements. 75.1916 Operation of diesel-powered (b) Flammable liquids shall not be materials. If bulkheads are used they equipment. added to diesel fuel used in diesel- must be tightly sealed and must be built powered equipment underground. of or covered with noncombustible Subpart TÐDiesel-Powered Equipment (c) Only diesel fuel additives that materials; have been registered by the (2) Provided with either self-closing § 75.1900 Definitions. Environmental Protection Agency may doors or a means for automatic The following definitions apply in be used in diesel-powered equipment enclosure; this subpart. underground. (3) Provided with a means for Diesel fuel tank. A closed metal vessel personnel to enter and exit the facility specifically designed for the storage or § 75.1902 Underground diesel fuel after closure; transport of diesel fuel. storageÐgeneral requirements. (4) Ventilated with intake air that is Diesel fuel transportation unit. A self- (a) All diesel fuel must be stored in: coursed into a return air course or to the propelled or portable wheeled vehicle (1) Diesel fuel tanks in permanent surface and that is not used to ventilate used to transport a diesel fuel tank. underground diesel fuel storage working places, using ventilation Noncombustible material. A material facilities; controls meeting the requirements of (2) Diesel fuel tanks on diesel fuel that will continue to serve its intended § 75.333(e); function for 1 hour when subjected to a transportation units in permanent (5) Equipped with an automatic fire fire test incorporating an ASTM E119– underground diesel fuel storage suppression system that meets the 88 time/temperature heat input, or facilities or in temporary underground requirements of § 75.1912. Actuation of equivalent. The publication ASTM fuel storage areas; or the automatic fire suppression system (3) Safety cans. E119–88 ‘‘Standard Test Methods for (b) The total capacity of stationary shall initiate the means for automatic Fire Tests of Building Construction and diesel fuel tanks in permanent enclosure; Materials’’ is incorporated by reference underground diesel fuel storage (6) Provided with a means of and may be inspected at any Coal Mine facilities must not exceed 1000 gallons. containment capable of holding 150 Health and Safety District and (c)(1) Only one temporary percent of the maximum capacity of the Subdistrict Office; at MSHA’s Office of underground diesel fuel storage area is fuel storage system; and Standards, Regulations, and Variances, permitted for each working section or in (7) Provided with a competent 4105 Wilson Boulevard, Arlington, VA each area of the mine where equipment concrete floor or equivalent to prevent 22203; or at the Office of the Federal is being installed or removed. fuel spills from saturating the mine Register, 800 North Capitol Street, NW., (2) The temporary underground diesel floor. Washington, DC. This incorporation by fuel storage area must be located— (b) Permanent underground diesel reference was approved by the Director (i) Within 500 feet of the loading fuel storage facilities and temporary of the Federal Register in accordance point; underground diesel fuel storage areas with 5 U.S.C. 552(a) and 1 CFR part 51. (ii) Within 500 feet of the projected must be— In addition, copies of the document may loading point where equipment is being (1) Equipped with at least 240 pounds be purchased from the American installed; or of rock dust and provided with two Society for Testing Materials (ASTM), (iii) Within 500 feet of the last loading portable multipurpose dry chemical 1916 Race Street, Philadelphia, PA point where equipment is being type (ABC) fire extinguishers that are 19103. removed. listed or approved by a nationally Permanent underground diesel fuel (3) No more than one diesel fuel recognized independent testing storage facility. A facility designed and transportation unit at a time shall be laboratory and have a 10A:60B:C or Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55529 higher rating. Both fire extinguishers (1) Devices for emergency venting § 75.1905 Dispensing of diesel fuel. must be easily accessible to personnel, designed to open at a pressure not to (a) Diesel-powered equipment in and at least one fire extinguisher must exceed 2.5 psi according to the underground coal mines may be be located outside of the storage facility following— refueled only from safety cans, from or area upwind of the facility, in intake (i) Tanks with a capacity greater than tanks on diesel fuel transportation units, air; or 500 gallons must have an emergency or from stationary tanks. (2) Provided with three portable venting device whose area is equivalent (b) Fuel that is dispensed from other multipurpose dry chemical type (ABC) to a pipe with a nominal inside than safety cans must be dispensed by fire extinguishers that are listed or diameter of 5 inches or greater; and means of— approved by a nationally recognized (ii) Tanks with a capacity of 500 (1) Gravity feed with a hose equipped independent testing laboratory and have gallons or less must have an emergency with a nozzle with a self-closing valve a 10A:60B:C or higher rating. All fire venting device whose area is equivalent and no latch-open device; extinguishers must be easily accessible to a pipe with a nominal inside (2) A manual pump with a hose to personnel, and at least one fire diameter of 4 inches or greater. equipped with a nozzle containing a extinguisher must be located outside of (2) Tethered or self-closing caps for self-closing valve; or the storage facility or area upwind of the stationary tanks in permanent (3) A powered pump with: facility, in intake air. underground diesel fuel storage (i) An accessible emergency shutoff (3) Identified with conspicuous facilities and self-closing caps for diesel switch for each nozzle; markings designating diesel fuel storage; fuel tanks on diesel fuel transportation (ii) A hose equipped with a self- and units; closing valve and no latch-open device; (4) Maintained to prevent the (3) Vents to permit the free discharge and accumulation of water. of liquid, at least as large as the fill or (iii) An anti-siphoning device. (c) Welding or cutting other than that withdrawal connection, whichever is (c) Diesel fuel must not be dispensed 1 performed in accordance with larger, but not less than 1 ⁄4 inch using compressed gas. paragraph (d) of this section shall not be nominal inside diameter; (d) Diesel fuel must not be dispensed performed within 50 feet of a permanent (4) Liquid tight connections for all to the fuel tank of diesel-powered underground diesel fuel storage facility tank openings that are— equipment while the equipment engine (i) Identified by conspicuous or a temporary underground diesel fuel is running. markings that specify the function; and (e) Powered pumps shall be shut off storage area. (ii) Closed when not in use. (d) When it is necessary to weld, cut, (5) Vent pipes that drain toward the when fuel is not being dispensed. or solder pipelines, tanks, or other tank without sagging and are higher § 75.1905±1 Diesel fuel piping systems. containers that may have contained than the fill pipe opening; (a) Diesel fuel piping systems from the diesel fuel, these practices shall be (6) Shutoff valves located as close as surface must be designed and operated followed: practicable to the tank shell on each as dry systems, unless an automatic (1) Cutting or welding shall not be connection through which liquid can shutdown is incorporated that prevents performed on or within pipelines, tanks, normally flow; and or other containers that have contained (7) An automatic closing, heat- accidental loss or spillage of fuel and diesel fuel until they have been actuated valve on each withdrawal that activates an alarm system. thoroughly purged and cleaned or connection below the liquid level. (b) All piping, valves and fittings inerted and a vent or opening is (c) When tanks are provided with must be— provided to allow for sufficient release openings for manual gauging, liquid (1) Capable of withstanding working of any buildup pressure before heat is tight, tethered or self-closing caps or pressures and stresses; applied. covers must be provided and must be (2) Capable of withstanding four times (2) Diesel fuel shall not be allowed to kept closed when not open for gauging. the static pressures; enter pipelines, tanks, or containers that (d) Surfaces of the tank and its (3) Compatible with diesel fuel; and have been welded, soldered, brazed, or associated components must be (4) Maintained in a manner that cut until the metal has cooled to protected against damage by collision. prevents leakage. ambient temperature. (e) Before being placed in service, (c) Pipelines must have manual tanks and their associated components shutoff valves installed at the surface § 75.1904 Underground diesel fuel tanks must be tested for leakage at a pressure filling point, and at the underground and safety cans. equal to the working pressure, except discharge point. (a) Diesel fuel tanks used tanks and components connected (d) If diesel fuel lines are not buried underground shall— directly to piping systems, which must in the ground sufficiently to protect (1) Have steel walls of a minimum be properly designed for the them from damage, shutoff valves must 3⁄16-inch thickness, or walls made of application. be located every 300 feet. other metal of a thickness that provides (f) Safety cans must be: (e) Shutoff valves must be installed at equivalent strength; (1) Limited to a nominal capacity of each branch line where the branch line (2) Be protected from corrosion; 5 gallons or less; joins the main line. (3) Be of seamless construction or (2) Equipped with a flexible or rigid (f) An automatic means must be have liquid tight welded seams; tubular nozzle attached to a valved provided to prevent unintentional (4) Not leak; and spout; transfer of diesel fuel from the surface (5) For stationary tanks in permanent (3) Provided with a vent valve into the permanent underground diesel underground diesel fuel storage designed to open and close fuel storage facility. facilities, be placed on supports simultaneously and automatically with (g) Diesel fuel piping systems from the constructed of noncombustible material the opening and closing of the pouring surface shall only be used to transport so that the tanks are at least 12 inches valve; and diesel fuel directly to stationary tanks or above the floor. (4) Designed so that they will safely diesel fuel transportation units in a (b) Underground diesel fuel tanks relieve internal pressure when exposed permanent underground diesel fuel must be provided with— to fire. storage facility. 55530 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations

(h) The diesel fuel piping system must (k) Diesel fuel shall not be transported (2) Equipment that performs drilling not be located in a borehole with on or with mantrips or on conveyor or bolting functions; electric power cables. belts. (3) Equipment that moves longwall (i) Diesel fuel piping systems located (l) Diesel fuel shall be stored and components; in entries must not be located on the handled in accordance with the (4) Self-propelled diesel fuel same side of the entry as electric cables requirements of §§ 75.1902 through transportation units and self-propelled or power lines. Where it is necessary for 75.1906 of this part as of November 25, lube units; or piping systems to cross electric cables or 1997. (5) Machines used to transport power lines, guarding must be provided portable diesel fuel transportation units § 75.1907 Diesel-powered equipment to prevent severed electrical cables or or portable lube units. intended for use in underground coal (b) Light-duty diesel-powered power lines near broken fuel lines. mines. (j) Diesel fuel piping systems must be equipment is any diesel-powered (a) As of November 25, 1996 all equipment that does not meet the protected and located to prevent diesel-powered equipment used where physical damage. criteria of paragraph (a). permissible electrical equipment is (c) For the purposes of this subpart, § 75.1906 Transport of diesel fuel. required must be approved under part the following equipment is considered (a) Diesel fuel shall be transported 36 of this chapter. attended: only by diesel fuel transportation units (b) Diesel-powered equipment (1) Any machine or device operated or in safety cans. approved under part 36 of this chapter by a miner; or (b) No more than one safety can shall must be provided with additional safety (2) Any machine or device that is be transported on a vehicle at any time. features in accordance with the mounted in the direct line of sight of a The can must be protected from damage following time schedule: job site located within 500 feet of such (1) As of April 25, 1997 the during transport. All other safety cans machine or device, which job site is equipment must have a safety must be stored in permanent occupied by a miner. component system that limits surface underground diesel fuel storage (d) Diesel-powered ambulances and temperatures to those specified in facilities. fire fighting equipment are a special subpart F of part 7 of this title; (c) Safety cans that leak must be category of equipment that may be used (2) As of November 25, 1999 the underground only in accordance with promptly removed from the mine. equipment must have an automatic or (d) Diesel fuel transportation unit the mine fire fighting and evacuation manual fire suppression system that tanks and safety cans must be plan under § 75.1101–23. meets the requirements of § 75.1911 of conspicuously marked as containing this part, and at least one portable § 75.1909 Nonpermissible diesel-powered diesel fuel. multipurpose dry chemical type (ABC) equipment; design and performance (e) Diesel fuel transportation units fire extinguisher, listed or approved by requirements. must transport no more than 500 gallons a nationally recognized independent (a) Nonpermissible diesel-powered of diesel fuel at a time. testing laboratory and having a equipment, except for the special (f) Tanks on diesel fuel transportation category of equipment under units must be permanently fixed to the 10A:60B:C or higher rating. The fire extinguisher must be located within § 75.1908(d), must be equipped with the unit and have a total capacity of no following features: greater than 500 gallons of diesel fuel. easy reach of the equipment operator and be protected from damage by (1) An engine approved under subpart (g) Non-self-propelled diesel fuel E of part 7 of this title equipped with transportation units with electrical collision. (3) As of November 25, 1999 the an air filter sized in accordance with the components for dispensing fuel that are engine manufacturer’s connected to a source of electrical equipment must have a brake system that meets the requirements of § 75.1909 recommendations, and an air filter power must be protected by a fire service indicator set in accordance with suppression device that meets the (b)(6), (b)(7), (b)(8), (c), (d), and (e); (4) As of November 25, 1997 a the engine manufacturer’s requirements of §§ 75.1107–3 through particulate index and dilution air recommendations; 75.1107–6 and §§ 75.1107–8 and quantity shall be determined for the (2) At least one portable multipurpose 75.1107–16. equipment in accordance with subpart E dry chemical type (ABC) fire (h) Diesel fuel transportation units of part 7 of this chapter; and extinguisher listed or approved by a and vehicles transporting safety cans (5) Permissible diesel-powered nationally recognized independent containing diesel fuel must have at least equipment manufactured on or after testing laboratory with a 10A:60B:C or two multipurpose, dry chemical type November 25, 1999 and that is used in higher rating. The fire extinguisher must (ABC) fire extinguishers, listed or an underground coal mine shall be located within easy reach of the approved by a nationally recognized incorporate a power package approved equipment operator and protected from independent testing laboratory and in accordance with part 7, subpart F of damage; having a 10A:60B:C or higher rating, this chapter. (3) A fuel system specifically with one fire extinguisher provided on (c) As of November 25, 1999 designed for diesel fuel meeting the each side of the vehicle. nonpermissible diesel-powered following requirements: (i) Diesel fuel transportation units equipment, except the special category (i) A fuel tank and fuel lines that do shall be parked only in permanent of equipment under § 75.1908(d), shall not leak; underground diesel fuel storage meet the requirements of §§ 75.1909 and (ii) A fuel tank that is substantially facilities or temporary underground 75.1910 of this part. constructed and protected against diesel fuel storage areas when not in damage by collision; use. § 75.1908 Nonpermissible diesel-powered (iii) A vent opening that maintains (j) When the distance between a diesel equipmentÐcategories. atmospheric pressure in the fuel tank, fuel transportation unit and an (a) Heavy-duty diesel-powered and that is designed to prevent fuel from energized trolley wire at any location is equipment includes— splashing out of the vent opening; less than 12 inches, the requirements of (1) Equipment that cuts or moves rock (iv) A self-closing filler cap on the § 75.1003–2 must be followed. or coal; fuel tank; Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55531

(v) The fuel tank, filler and vent must (5) Lights provided and maintained (f) Self-propelled personnel-elevating be located so that leaks or spillage on both ends of the equipment. work platforms must be provided with during refueling will not contact hot Equipment normally operated in both a means to ensure that the parking surfaces; directions must be equipped with braking system is released before the (vi) Fuel line piping must be either headlights for both directions; equipment can be trammed, and must steel-wire reinforced; synthetic (6) Service brakes that act on each be designed to ensure the brake is fully elastomer-covered hose suitable for use wheel of the vehicle and that are released at all times while the with diesel fuel that has been tested and designed such that failure of any single equipment is trammed. has been determined to be fire-resistant component, except the brake actuation (g) Any nonpermissible equipment by the manufacturer; or metal; pedal or other similar actuation device, that discharges its exhaust directly into (vii) Fuel line piping must be must not result in a complete loss of a return air course must be provided clamped; service braking capability; with a power package approved under (viii) Primary fuel lines must be (7) Service brakes that safely bring the subpart F of part 7 of this title. located so that fuel line leaks do not fully loaded vehicle to a complete stop (h) Self-propelled nonpermissible contact hot surfaces; on the maximum grade on which it is heavy-duty diesel-powered equipment (ix) The fuel lines must be separated operated; and meeting the requirements of § 75.1908(a) from electrical wiring and protected (8) No device that traps a column of must be provided with an automatic fire from damage in ordinary use; fluid to hold the brake in the applied suppression system meeting the (x) A manual shutoff valve must be position shall be installed in any brake requirements of § 75.1911. installed in the fuel system as close as system, unless the trapped column of (i) Self-propelled nonpermissible practicable to the tank; and fluid is released when the equipment light-duty diesel-powered equipment (xi) A water separator and fuel filter(s) operator is no longer in contact with the meeting the requirements of must be provided. brake activation device. § 75.1908(b) must be provided with an (4) A sensor to monitor the (c) Self-propelled nonpermissible automatic or manual fire suppression temperature and provide a visual heavy-duty diesel-powered equipment system meeting the requirements of warning of an overheated cylinder head under § 75.1908(a), except rail-mounted § 75.1911. on air-cooled engines; equipment, shall be provided with a (j) Nonpermissible equipment that is (5) Guarding to protect fuel, not self-propelled must have the hydraulic, and electric lines when such supplemental braking system that: (1) Engages automatically within 5 following features in addition to those lines pass near rotating parts or in the seconds of the shutdown of the engine; listed in paragraph (a): event of shaft failure; (2) Safely brings the equipment when (1) A means to prevent inadvertent (6) Hydraulic tanks, fillers, vents, and fully loaded to a complete stop on the movement of the equipment when lines located to prevent spillage or leaks maximum grade on which it is operated; parked; from contacting hot surfaces; (3) Holds the equipment stationary, (2) Safety chains or other suitable (7) Reflectors or warning lights secondary connections on equipment mounted on the equipment which can despite any contraction of brake parts, exhaustion of any nonmechanical that is being towed; and be readily seen in all directions; (3) An automatic fire suppression (8) A means to direct exhaust gas source of energy, or leakage; (4) Releases only by a manual control system meeting the requirements of away from the equipment operator, § 75.1911. persons on board the machine, and that does not operate any other combustible machine components; equipment function; § 75.1910 Nonpermissible diesel-powered (9) A means to prevent unintentional (5) Has a means in the equipment equipment; electrical system design and free and uncontrolled descent of operator’s compartment to apply the performance requirements. personnel-elevating work platforms; and brakes manually without the engine Electrical circuits and components (10) A means to prevent the spray operating, and a means to release and associated with or connected to from ruptured hydraulic or lubricating reengage the brakes without the engine electrical systems on nonpermissible oil lines from being ignited by contact operating; and diesel-powered equipment utilizing with engine exhaust system component (6) Has a means to ensure that the storage batteries and integral charging surfaces. supplemental braking system is released systems, except for the special category (b) Self-propelled nonpermissible before the equipment can be trammed, of equipment under § 75.1908(d), must diesel-powered equipment must have and is designed to ensure the brake is conform to the following requirements: the following features in addition to fully released at all times while the (a) Overload and short circuit those in paragraph (a): equipment is trammed. protection must be provided for electric (1) A means to ensure that no stored (d) Self-propelled nonpermissible circuits and components in accordance hydraulic energy that will cause light-duty diesel-powered equipment with §§ 75.518 and 75.518–1 of this machine articulation is available after under § 75.1908(b), except rail-mounted part; the engine is shut down; equipment, must be provided with a (b) Each electric conductor from the (2) A neutral start feature which parking brake that holds the fully battery to the starting motor must be ensures that engine cranking torque will loaded equipment stationary on the protected against short circuit by fuses not be transmitted through the maximum grade on which it is operated or other circuit-interrupting devices powertrain and cause machine despite any contraction of the brake placed as near as practicable to the movement on vehicles utilizing fluid parts, exhaustion of any nonmechanical battery terminals; power transmissions; source of energy, or leakage. (c) Each branch circuit conductor (3) For machines with steering (e) The supplemental and park brake connected to the main circuit between wheels, brake pedals, and accelerator systems required by paragraphs (c) and the battery and charging generator must pedals, controls which are of (d) must be applied when the be protected against short circuit by automobile orientation; equipment operator is not at the fuses or other automatic circuit- (4) An audible warning device controls of the equipment, except interrupting devices; conveniently located near the during movement of disabled (d) The electrical system shall be equipment operator; equipment. equipped with a circuit-interrupting 55532 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations device by means of which all power (l) Battery-box covers must be lined (c) If automatic, the fire suppression conductors can be deenergized. The with a flame-resistant insulating system shall include audible and visual device must be located as close as material permanently attached to the alarms to warn of fires or system faults. practicable to the battery terminals and underside of the cover, unless (d) The fire suppression system shall be designed to operate within its equivalent protection is provided. provide for automatic engine shutdown. electrical rating without damage. The Battery-box covers must be provided If the fire suppression system is device shall not automatically reset after with a means for securing them in automatic, engine shutdown and being actuated. All magnetic circuit- closed position. At least 1⁄2 inch of air discharge of suppressant agent may be interrupting devices must be mounted space must be provided between the delayed for a maximum of 15 seconds in a manner to preclude their closing by underside of the cover and the top of the after the fire is detected by the system. force of gravity; battery, including terminals; (e) The fire suppression system shall (e) Each motor and charging generator (m) Battery boxes must be provided be operable by at least two manual must be protected by an automatic with ventilation openings to prevent the actuators. One actuator shall be located overcurrent device. One protective accumulation of flammable or toxic on each side of the equipment. If the device will be acceptable when two gases or vapors within the battery box. equipment is provided with an motors of the same rating operate The size and locations of openings for operator’s compartment, one of the simultaneously and perform virtually ventilation must prevent direct access to manual actuators shall be located in the the same duty; battery terminals; compartment within reach of the (f) Each ungrounded conductor must (n) The battery must be insulated from operator. have insulation compatible with the the battery-box walls and supported on (f) The fire suppression system shall impressed voltage. Insulation materials insulating materials. Insulating remain operative in the event of engine must be resistant to deterioration from materials that may be subject to shutdown, equipment electrical system engine heat and oil. Electric conductors chemical reaction with electrolyte must failure, or failure of any other must meet the applicable requirements be treated to resist such action; and equipment system. (g) The electrical components of each of §§ 75.513 and 75.513–1, except (o) Drainage holes must be provided fire suppression system installed on electric conductors for starting motors, in the bottom of each battery box. which must only meet the requirements equipment used where permissible of § 75.513; § 75.1911 Fire suppression systems for electric equipment is required shall be (g) All wiring must have adequate diesel-powered equipment and fuel permissible or intrinsically safe and transportation units. mechanical protection to prevent such components shall be maintained in damage to the cable that might result in (a) The fire suppression system permissible or intrinsically safe short circuits; required by §§ 75.1907 and 75.1909 condition. (h) Electrically operated detection and (h) Sharp edges and corners must be shall be a multipurpose dry chemical actuation circuits shall be monitored removed at all points where there is a type (ABC) fire suppression system and provided with status indicators possibility of damaging wires, cables, or listed or approved by a nationally showing power and circuit continuity. If conduits by cutting or abrasion. The recognized independent testing the system is not electrically operated, insulation of the cables within a battery laboratory and appropriate for a means shall be provided to indicate box must be protected against abrasion; installation on diesel-powered equipment and fuel transportation units. the functional readiness status of the (i) When insulated wires other than detection system. cables pass through metal frames, the (1) The system shall be installed in accordance with the manufacturer’s (i) Each fire suppression system shall holes must be substantially bushed with be tested and maintained in accordance insulated bushings. Cables must enter specifications and the limitations of the listing or approval. with the manufacturer’s recommended metal frames of motors, splice boxes, inspection and maintenance program (2) The system shall be installed in a and electric components only through and as required by the nationally protected location or guarded to proper fittings. All electrical recognized independent testing minimize physical damage from routine connections and splices must be laboratory listing or approval, and be vehicle operations. mechanically and electrically efficient, visually inspected at least once each and suitable connectors shall be used. (3) Suppressant agent distribution week by a person trained to make such All electrical connectors or splices in tubing or piping shall be secured and inspections. insulated wire must be reinsulated at protected against damage, including (j) Recordkeeping Persons performing least to the same degree of protection as pinching, crimping, stretching, abrasion, inspections and tests of fire suppression the remainder of the wire; and corrosion. systems under paragraph (i) shall record (j) The battery must be secured to (4) Discharge nozzles shall be when a fire suppression system does not prevent movement, and must be positioned and aimed for maximum fire meet the installation or maintenance protected from external damage by suppression effectiveness. Nozzles shall requirements of this section. position. Batteries that are not protected also be protected against the entrance of (1) The record shall include the from external damage by position must foreign materials such as mud, coal equipment on which the fire be enclosed in a battery box. Flame- dust, or rock dust. suppression system did not meet the resistant insulation treated to resist (b) The fire suppression system shall installation or maintenance chemical reaction to electrolyte must be provide fire suppression and, if requirements of this section, the defect provided on battery connections to automatic, fire detection for the engine found, and the corrective action taken. prevent battery terminals from including the starter, transmission, (2) Records are to be kept manually in contacting conducting surfaces; hydraulic pumps and tanks, fuel tanks, a secure manner not susceptible to (k) A battery box, including the cover, exposed brake units, air compressors alteration or recorded electronically in a must be constructed of steel with a and battery areas on diesel-powered secured computer system that is not minimum thickness of 1⁄8 inch, or of a equipment and electric panels or susceptible to alteration. material other than steel that provides controls used on fuel transportation (3) Records shall be maintained at a equivalent strength; units and other areas as necessary. surface location at the mine for one year Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations 55533 and made available for inspection by an storage facility when actuated except (b) Containers of volatile fuel starting authorized representative of the that required for automatic enclosure aids shall be conspicuously marked to Secretary and miners’ representatives. and alarms. indicate the contents. When not in use, (k) All miners normally assigned to (e) Fire suppression systems shall containers of volatile fuel starting aids the active workings of the mine shall be include two manual actuators located as shall be stored in metal enclosures that instructed about the hazards inherent to follows: are used only for storage of starting aids. the operation of the fire suppression (1) At least one within the fuel storage Such metal enclosures must be systems and, where appropriate, the facility; and conspicuously marked, secured, and safeguards available for each system. (2) At least one a safe distance away protected from damage. (l) For purposes of § 75.380(f), a fire from the storage facility and located in (c) Volatile fuel starting aids shall not suppression system installed on diesel- intake air, upwind of the storage facility. be: powered equipment and meeting the (f) The fire suppression system shall (1) Taken into or used in areas where requirements of this section is remain operational in the event of permissible equipment is required; equivalent to a fire suppression system electrical system failure. (2) Used in the presence of open meeting the requirements of §§ 75.1107– (g) Electrically operated detection and flames or burning flame safety lamps, or 3 through 75.1107–16. actuation circuits shall be monitored when welding or cutting is taking place; and provided with status indicators or § 75.1912 Fire suppression systems for showing power and circuit continuity. If (3) Used in any area where 1.0 percent permanent underground diesel fuel storage the system is not electrically operated, or greater concentration of methane is facilities. a means shall be provided to indicate present. (a) The fire suppression system the functional readiness status of the (d) Compressed oxygen or compressed required by § 75.1903 shall be an detection system. flammable gases shall not be connected automatic multipurpose dry chemical (h) Each fire suppression system shall to diesel air-start systems. type (ABC) fire suppression system be tested and maintained in accordance listed or approved as an engineered dry with the manufacturer’s recommended § 75.1914 Maintenance of diesel-powered chemical extinguishing system by a inspection and maintenance program equipment. nationally recognized independent and as required by the nationally (a) Diesel-powered equipment shall be testing laboratory and appropriate for recognized independent testing maintained in approved and safe installation at a permanent underground laboratory listing or approval, and be condition or removed from service. diesel fuel storage facility. visually inspected at least once each (b) Maintenance and repairs of (1) Alternate types of fire suppression week by a person trained to make such approved features and those features systems shall be approved in inspections. required by §§ 75.1909 and 75.1910 on accordance with § 75.1107–13 of this (i) Recordkeeping. Persons performing diesel-powered equipment shall be part. inspections and tests of fire suppression made only by a person qualified under (2) The system shall be installed in systems under paragraph (h) shall § 75.1915. accordance with the manufacturer’s record when a fire suppression system (c) The water scrubber system on specifications and the limitations of the does not meet the installation or diesel-powered equipment shall be listing or approval. maintenance requirements of this drained and flushed, by a person who (3) The system shall be installed in a section. is trained to perform this task, at least protected location or guarded to prevent (1) The record shall include the once on each shift in which the physical damage from routine facility whose fire suppression system equipment is operated. operations. did not meet the installation or (d) The intake air filter on diesel- (4) Suppressant agent distribution maintenance requirements of this powered equipment shall be replaced or tubing or piping shall be secured and section, the defect found, and the serviced, by a person who is trained to protected against damage, including corrective action taken. perform this task, when the intake air pinching, crimping, stretching, abrasion, (2) Records are to be kept manually in pressure drop device so indicates or and corrosion. a secure manner not susceptible to when the engine manufacturer’s (5) Discharge nozzles shall be alteration or recorded electronically in a maximum allowable air pressure drop positioned and aimed for maximum fire secured computer system that is not level is exceeded. suppression effectiveness in the susceptible to alteration. (e) Mobile diesel-powered equipment protected areas. Nozzles must also be (3) Records shall be maintained at a that is to be used during a shift shall be protected against the entrance of foreign surface location at the mine for one year visually examined by the equipment materials such as mud, coal dust, and and made available for inspection by an operator before being placed in rock dust. authorized representative of the operation. Equipment defects affecting (b) The fire suppression system shall Secretary and miners’ representatives. safety shall be reported promptly to the provide automatic fire detection and (j) All miners normally assigned to the mine operator. automatic fire suppression for all areas active workings of the mine shall be (f) All diesel-powered equipment within the facility. instructed about the hazards inherent to shall be examined and tested weekly by (c) Audible and visual alarms to warn the operation of the fire suppression a person qualified under § 75.1915. of fire or system faults shall be provided systems and, where appropriate, the (1) Examinations and tests shall be at the protected area and at a surface safeguards available for each system. conducted in accordance with approved location which is continually monitored checklists and manufacturers’ by a person when personnel are § 75.1913 Starting aids. maintenance manuals. underground. In the event of a fire, (a) Volatile fuel starting aids shall be (2) Persons performing weekly personnel shall be warned in used in accordance with examinations and tests of diesel- accordance with the provisions set forth recommendations provided by the powered equipment under this in § 75.1101–23. starting aid manufacturer, the engine paragraph shall make a record when the (d) The fire suppression system shall manufacturer, and the machine equipment is not in approved or safe deenergize all power to the diesel fuel manufacturer. condition. The record shall include the 55534 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Rules and Regulations equipment that is not in approved or § 75.1915 Training and qualification of perform all assigned tasks with respect safe condition, the defect found, and the persons working on diesel-powered to diesel-powered equipment corrective action taken. equipment. maintenance, repairs, examinations and (g) Undiluted exhaust emissions of (a) To be qualified to perform tests; and diesel engines in diesel-powered maintenance, repairs, examinations and (5) Be in writing. The written program equipment approved under part 36 and tests on diesel-powered equipment, as shall include a description of the course heavy-duty nonpermissible diesel- required by § 75.1914, a person must content, materials, and teaching powered equipment as defined in successfully complete a training and methods for initial training and § 75.1908(a) in use in underground coal qualification program that meets the retraining. mines shall be tested and evaluated requirements of this section. A person (c) Recordkeeping. The operator shall weekly by a person who is trained to qualified to perform these tasks shall be maintain a copy of the training and perform this task. The mine operator retrained as necessary to maintain the qualification program required by this shall develop and implement written ability to perform all assigned diesel- section and a record of the names of all standard operating procedures for such powered equipment maintenance, persons qualified under the program. testing and evaluation that specify the repairs, examinations and tests. (1) The record of the names of following: (b) A training and qualification qualified persons shall be made in a (1) The method of achieving a program under this section must: manner that is not susceptible to repeatable loaded engine operating (1) Be presented by a competent alteration, or recorded electronically in condition for each type of equipment; instructor; a computer system that is secure and (2) Sampling and analytical methods (2) Be sufficient to prepare or update not susceptible to alteration. (including calibration of a person’s ability to perform all assigned (2) The training and qualification instrumentation) that are capable of tasks with respect to diesel-powered program and record of qualified persons accurately detecting carbon monoxide equipment maintenance, repairs, are to be kept at surface location of the in the expected concentrations; examinations and tests; mine and made available for inspection (3) Address, at a minimum, the (3) The method of evaluation and by an authorized representative of the following: interpretation of the results; Secretary and by miners’ (i) The requirements of subpart T of representatives. (4) The concentration or changes in this part; concentration of carbon monoxide that (ii) Use of appropriate power package § 75.1916 Operation of diesel-powered will indicate a change in engine or machine checklists to conduct tests to equipment. performance. Carbon monoxide ensure that diesel-powered equipment (a) Diesel-powered equipment shall be concentration shall not exceed 2500 is in approved and safe condition, with parts per million; and operated at a speed that is consistent acceptable emission levels; with the type of equipment being (5) The maintenance of records (iii) Proper maintenance of approved necessary to track engine performance. operated, roadway conditions, grades, features and the correct use of the clearances, visibility, and other traffic. (h) Recordkeeping. Records required appropriate maintenance manuals, by paragraphs (f)(2) and (g)(5) shall be— (b) Operators of mobile diesel- including machine adjustments, service, powered equipment shall maintain full (1) Recorded in a secure book that is and assembly; control of the equipment while it is in not susceptible to alteration, or recorded (iv) Diesel-powered equipment fire motion. electronically in a computer system that suppression system tests and (c) Standardized traffic rules, is secure and not susceptible to maintenance; including speed limits, signals and alteration; and (v) Fire and ignition sources and their warning signs, shall be established at (2) Retained at a surface location at control or elimination, including each mine and followed. the mine for at least 1 year and made cleaning of the equipment; (d) Except as required in normal available for inspection by an (vi) Safe fueling procedures and mining operations, mobile diesel- authorized representative of the maintenance of the fuel system of the powered equipment shall not be idled. Secretary and by miners’ equipment; and (e) Diesel-powered equipment shall representatives. (vii) Intake air system maintenance not be operated unattended. (i) Diesel-powered equipment must be and tests. maintained in accordance with this part (4) Include an examination that [FR Doc. 96–26838 Filed 10–24–96; 8:45 am] as of November 25, 1997. requires demonstration of the ability to BILLING CODE 4510±43±P federal register October 25,1996 Friday Notice 42 oftheInternalRevenueCode1986; Difficult DevelopmentAreasforSection Statutorily MandatedDesignationof Office oftheSecretary Development Housing andUrban Department of Part IV 55535 55536 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices

DEPARTMENT OF HOUSING AND SUPPLEMENTARY INFORMATION: incomes no higher than 50 percent of URBAN DEVELOPMENT Background the Area Median Gross Income (‘‘AMGI’’), or 40 percent of units must Office of the Secretary The U.S. Treasury Department and be rent restricted and occupied by the Internal Revenue Service thereof are tenants with incomes no higher than 60 authorized to interpret and enforce the [Docket No. FR±4146±N±01] percent of AMGI. The term ‘‘rent- provisions of the Internal Revenue Code restricted’’ means that gross rent, Statutorily Mandated Designation of of 1986 (the ‘‘Code’’), including the including an allowance for utilities, Difficult Development Areas for Low-Income Housing Tax Credit cannot exceed 30 percent of the tenant’s Section 42 of the Internal Revenue (‘‘LIHTC’’) found at section 42 of the imputed income limitation (i.e., 50 Code of 1986 Code, as enacted by the Tax Reform Act percent or 60 percent of AMGI). The of 1986 [Pub. L. 99–514], as amended by rent and occupancy thresholds remain AGENCY: Office of the Secretary, HUD. the Technical and Miscellaneous in effect for at least 15 years, and ACTION: Notice. Revenue Act of 1988 [Pub. L. 100–647], building owners are required to enter as amended by the Omnibus Budget into agreements to maintain the low SUMMARY: This document provides Reconciliation Act of 1989 [Pub. L. 101– income character of the building for at revised designations of ‘‘Difficult 239], as amended by the Omnibus least an additional 15 years. Development Areas’’ for purposes of the Budget Reconciliation Act of 1990 [Pub. The LIHTC reduces income tax Low-Income Housing Tax Credit L. 101–508], as amended by the Tax liability dollar for dollar. It is taken (‘‘LIHTC’’) under section 42 of the Extension Act of 1991 [Pub. L. 102– annually for a term of ten years and is Internal Revenue Code of 1986, and 227], and as amended and made intended to yield a present value of provides the methodology used by the permanent by the Omnibus Budget either (1) 70 percent of the ‘‘qualified United States Department of Housing Reconciliation Act of 1993 [Pub. L. 103– basis’’ for new construction or and Urban Development (‘‘HUD’’). The 66]. The Secretary of HUD is required to substantial rehabilitation expenditures new Difficult Development Areas are designate Difficult Development Areas that are not federally subsidized (i.e., based on FY 1996 Fair Market Rents by section 42(d)(5)(C) of the Code. financed with tax-exempt bonds or (‘‘FMRs’’), FY 1996 income limits and In order to assist in understanding below-market federal loans), or (2) 30 1990 census population counts as HUD’s mandated designation of percent of the qualified basis for the explained below. The corrected Difficult Development Areas for use in acquisition of existing projects or designations of ‘‘Qualified Census administering section 42 of the Code, a projects that are federally subsidized. Tracts’’ under section 42 of the Internal summary of section 42 is provided. The The actual credit rates are adjusted Revenue Code published May 1, 1995 following summary does not purport to monthly for projects placed in service (60 FR 21246) remain in effect. bind the Treasury or the IRS in any way, after 1987 under procedures specified in nor does it purport to bind HUD as HUD FOR FURTHER INFORMATION CONTACT: section 42. Individuals can use the has no authority to interpret or With questions on how areas are credit up to a deduction equivalent of administer the Code, except in those designated and on geographic $25,000. This equals $9,900 at the 39.6 instances where it has a specific definitions, Kurt G. Usowski, percent maximum marginal tax rate. delegation. Economist, Division of Economic Individuals cannot use the credit against Development and Public Finance, Office Summary of Low Income Housing Tax the alternative minimum tax. of Policy Development and Research, Credit Corporations, other than S or professional service corporations, can Department of Housing and Urban The LIHTC is a tax incentive intended Development, 451 Seventh Street, S.W., use the credit against ordinary income to increase the availability of low tax. They cannot use the credit against Washington, D.C. 20410, telephone income housing. Section 42 provides an (202) 708–0426, e-mail KurtlG.l the alternative minimum tax. These income tax credit to owners of newly corporations can also deduct the losses [email protected]. With specific legal constructed or substantially from the project. questions pertaining to section 42 and rehabilitated low-income rental housing The qualified basis represents the this notice, Harold J. Gross, Senior Tax projects. The dollar amount of the product of the ‘‘applicable fraction’’ of Attorney, Office of the General Counsel, LIHTC available for allocation by each the building and the ‘‘eligible basis’’ of Department of Housing and Urban state (the ‘‘credit ceiling’’) is limited by the building. The applicable fraction is Development, 451 Seventh Street, S.W., population. Each state is allocated credit based on the number of low income Washington, D.C. 20410, telephone based on $1.25 per resident. Also, states units in the building as a percentage of (202) 708–3260. Hearing- or speech- may carry forward unused or returned the total number of units, or based on impaired persons may use the credit for one year; if not used by then, the floor space of low income units as Telecommunications Devices for the credit goes into a national pool to be a percentage of the total floor space in Deaf (TDD) by contacting the Federal allocated to states as additional credit. the building. The eligible basis is the Information Relay Service at 1–800– State and local housing agencies adjusted basis attributable to 877–8339. (Other than the ‘‘800’’ TDD allocate the state’s credit ceiling among acquisition, rehabilitation, or new number, telephone numbers are not toll low-income housing buildings whose construction costs (depending on the free.) Additional copies of this notice owners have applied for the credit. type of LIHTC involved). These costs are available through HUDUSER at (800) The credit allocated to a building is include amounts chargeable to capital 245–2691 for a small fee to cover based on the cost of units placed in account incurred prior to the end of the duplication and mailing costs. service as low-income units under first taxable year in which the qualified COPIES AVAILABLE ELECTRONICALLY: This certain minimum occupancy and low income building is placed in service notice is available electronically on the maximum rent criteria. In general, a or, at the election of the taxpayer, the Internet (World Wide Web) at: gopher:/ building must meet one of two end of the succeeding taxable year. In /www.huduser.org:73/11/2/d in both thresholds to be eligible for the LIHTC: the case of buildings located in downloadable and screen-readable either 20 percent of units must be rent- designated Qualified Census Tracts or formats. restricted and occupied by tenants with designated Difficult Development Areas, Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices 55537 eligible basis can be increased up to 130 Program. The procedure used in making development costs). Thus the State percent of what it would otherwise be. these calculations follows: minimum FMR better reflects actual This means that the available credit also 1. For each MSA/PMSA and each development costs in the area. can be increased by up to 30 percent. non-metropolitan county, a ratio was While it is not sensible to encourage For example, if the 70 percent credit is calculated. This calculation used the FY the development of additional housing available, it effectively could be 1996 two-bedroom FMR and the FY stock in an area with declining increased up to 91 percent. 1996 four-person VLIL. The numerator population by assigning it a State Under section 42(d)(5)(C) of the Code, of the ratio was the area’s FY 1996 FMR. minimum FMR and increasing the a Qualified Census Tract is any census The denominator of the ratio was the likelihood of its designation as a DDA, monthly LIHTC income-based rent limit the LIHTC is also a program for tract (or equivalent geographic area 1 defined by the Bureau of the Census) in calculated as ⁄12 of 30 percent of 120 subsidizing the rehabilitation of low- income housing. Rehabilitation may be which at least 50 percent of households percent of the area’s VLIL (where 120 percent of the VLIL was rounded to the especially needed in depressed housing have an income less than 60 percent of nearest $50 and not allowed to exceed markets where extremely low rents have the AMGI. There is a limit on the 80 percent of the AMGI in areas where encouraged the deferral of maintenance amount of Qualified Census Tracts in the VLIL is adjusted upward from its 50 and deterioration of the housing stock. any Metropolitan Statistical Area percent of AMGI base). (‘‘MSA’’) or Primary Metropolitan 2. The ratios of the FMR to the LIHTC C. Application of Population Caps to Statistical Area (‘‘PMSA’’) that may be income-based rent limit were arrayed in Difficult Development Area designated to receive an increase in descending order, separately, for MSAs/ Determinations eligible basis: all of the designated PMSAs and for non-metropolitan In identifying Difficult Development census tracts within a given MSA/ counties. Areas, HUD applied various caps, or PMSA may not together contain more 3. The Difficult Development Areas limitations, as noted above. The than 20 percent of the total population are those with the highest ratios cumulative population of metropolitan of the MSA/PMSA. For purposes of cumulative to 20 percent of the 1990 Difficult Development Areas cannot HUD designations of Qualified Census population of all metropolitan areas and exceed 20 percent of the cumulative Tracts, all non-metropolitan areas in a of all non-metropolitan counties. population of all metropolitan areas and state are treated as if they constituted a the cumulative population of B. Changes in Designated Areas Due to single metropolitan area. This Notice nonmetropolitan Difficult Development New FMR Calculation Method does not redesignate Qualified Census Areas cannot exceed 20 percent of the Tracts. The corrected designation of Beginning in FY 1996, HUD cumulative population of all Qualified Census Tracts published May implemented a new minimum FMR nonmetropolitan counties. 1, 1995, at 60 FR 21246 remains in policy in response to numerous public In applying these caps, HUD effect. Qualified Census Tracts will not concerns that FMRs in rural areas were established procedures to deal with how be redesignated until data from the 2000 too low to operate the Section 8 Housing to treat small overruns of the caps. The census become available. Assistance Payments Program remainder of this section explains the Section 42 defines a Difficult effectively. As a result, FMRs are now procedure. In general, HUD stops Development Area as any area established at the higher of the local selecting areas when it is impossible to designated by the Secretary of HUD as FMR or the Statewide average of choose another area without exceeding an area that has high construction, land, nonmetropolitan counties, subject to a the applicable cap. The only exceptions and utility costs relative to the AMGI. ceiling rent cap. The State minimum to this policy are when the next eligible Again, limits apply. All designated also affects a small number of excluded area contains either a large Difficult Development Areas in MSAs/ metropolitan areas whose rents would absolute population or a large PMSAs may not contain more than 20 otherwise fall below the State percentage of the total population, or percent of the aggregate population of minimum. The use of State minimum the next excluded area’s ranking ratio as all MSAs/PMSAs, and all designated FMRs resulted in a substantial change in described above was identical (to three areas not in metropolitan areas may not the designations of nonmetropolitan decimal places) to the last area selected, contain more than 20 percent of the DDAs. and its inclusion resulted in only a aggregate population of all non- HUD believes that FMRs provide the minor overrun of the cap. Thus for both metropolitan counties. most accurate basis for comparing the designated metropolitan and housing costs in local areas across the nonmetropolitan Difficult Development Explanation of HUD Designation country. That is why FMRs are used as Areas there are minimal overruns of the Methodology a measure of construction, land, and caps. HUD believes the designation of A. Difficult Development Areas utility costs in the designation of these additional areas is consistent with Difficult Development Areas. HUD the intent of the legislation. Some In developing the list of Difficult further believes that the move to State latitude is justifiable because it is Development Areas, HUD compared minimum FMRs improves their impossible to determine whether the 20 incomes with housing costs. HUD used usefulness for this purpose. Without the percent cap has been exceeded, as long 1990 Census data and the MSA/PMSA State minimum policy, extremely low as the apparent excess is small, due to definitions as published by the Office of FMRs which fail to reflect development measurement error. Despite the care and Management and Budget (‘‘OMB’’) in (i.e., construction and land) costs are effort involved in a decennial census, it OMB Bulletin No. 95–04 on June 30, most likely to be obtained in areas with is recognized by the Census Bureau, and 1995, with the exceptions described in temporary imbalances in the housing all users of the data, that the population section D., below. The basis for these market caused by, for example, counts for a given area and for the entire comparisons was the fiscal year (‘‘FY’’) declining population. In such markets, country are not precise. The extent of 1996 HUD income limits for Very Low rents may be too low to cover the ‘‘fixed the measurement error is unknown. Income households (‘‘VLILs’’) and Fair costs’’ of rental housing (i.e., the debt Thus, there can be errors in both the Market Rents (‘‘FMRs’’) used for the service and return on owners’ equity numerator and denominator of the ratio section 8 Housing Assistance Payments which are, in effect, the amortized of populations used in applying a 20 55538 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices percent cap. In circumstances where a Metropolitan Difficult Development undersigned hereby certifies that this strict application of a 20 percent cap Areas. notice does not have a significant results in an anomalous situation, Finally, in the New England states economic impact on a substantial recognition of the unavoidable (Connecticut, Maine, Massachusetts, number of small entities. The notice imprecision in the census data justifies New Hampshire, Rhode Island, and involves the designation of ‘‘Difficult accepting small variances above the 20 Vermont) OMB defines MSAs/PMSAs Development Areas’’ for use by political percent limit. according to county subdivisions or subdivisions of the States in allocating Minor Civil Divisions (‘‘MCDs’’) rather D. Exceptions to OMB Definitions of the LIHTC, as required by section 42 of than county boundaries. Thus, when a MSAs/PMSAs and Other Geographic the Internal Revenue Code, as amended. New England county is designated as a Matters This notice places no new requirements Nonmetropolitan Difficult Development on the States, their political As stated in OMB Bulletin 95–04 Area, only that part of the county (the subdivisions, or the applicants for the defining metropolitan areas: OMB group of MCDs) not included in any credit. This notice also details the establishes and maintains the MSA/PMSA is the Nonmetropolitan technical methodology used in making definitions of the [Metropolitan Areas] Difficult Development Area. Geographic such designations. MAs solely for statistical purposes definitions of the nonmetropolitan parts ** * OMB does not take into account of New England counties can be found Executive Order 12612, Federalism or attempt to anticipate any in HUD’s Rule establishing FY 1996 The General Counsel, as the nonstatistical uses that may be made of FMRs at 61 FR 6690 or 24 CFR Part 888. Designated Official under section 6(a) of the definitions * * *. We recognize that Affected counties are assigned the Executive Order 12612, Federalism, has some legislation specifies the use of indicator ‘‘(part)’’ in the list of determined that the policies contained metropolitan areas for programmatic Nonmetropolitan Difficult Development purposes, including allocating Federal Areas. in this notice will not have any funds. substantial direct effects on States or HUD makes exceptions to OMB Future Designations their political subdivisions, or the definitions in calculating FMRs by Difficult Development Areas are relationship between the Federal deleting counties from metropolitan designated annually as updated income government and the States, or on the areas whose OMB definitions are and FMR data become available. distribution of power and determined by HUD to be larger than Qualified Census Tracts will not be responsibilities among the various their housing market areas. In addition, redesignated until data from the 2000 levels of government. As a result, the HUD is required by statute to calculate census become available. notice is not subject to review under the a separate FMR and VLIL for order. The notice merely designates Westchester County, New York, which Effective Date ‘‘Difficult Development Areas’’ for the OMB includes as part of the New York, The list of Difficult Development use by political subdivisions of the NY PMSA. The following counties are Areas is effective for allocations of States in allocating the LIHTC, as assigned their own FMRs and VLILs and credit made after December 31, 1996. In required under section 42 of the Internal evaluated as if they were separate the case of a building described in Revenue Code, as amended. The notice metropolitan areas for purposes of Internal Revenue Code section also details the technical methodology designating Difficult Development 42(h)(4)(B), the list is effective if the used in making such designations. Areas. bonds are issued and the building is Executive Order 12606, the Family Metropolitan Area and Counties Deleted placed in service after December 31, 1996. The corrected designations of Atlanta, GA: Carrol, Pickens, and The General Counsel, as the Qualified Census Tracts published May Designated Official under Executive Walton Counties. 1, 1995, at 60 FR 21246 remain in effect. Chicago, IL: DeKalb, Grundy, and Order 12606, The Family, has Kendall Counties. Findings and Certifications determined that this notice does not Cincinnati-Hamilton, OH-KY-IN: Brown have potential for significant impact on Environmental Impact County, Ohio; Gallatin, Grant, and family formation, maintenance, and Pendleton Counties, Kentucky; and In accordance with 40 CFR 1508.4 of general well-being, and, thus, is not Ohio County, Indiana. the CEQ regulations and 24 CFR 50.20 subject to review under the Order. The Dallas, TX: Henderson County. of the HUD regulations, the policies and notice involves the designation of Flagstaff, AZ-UT: Kane County, Utah. actions in this document are determined ‘‘Difficult Development Areas’’ for use Lafayette, LA: St. Landry and Acadia not to have the potential of having a by political subdivisions of the States in Parishes. significant impact on the quality of the allocating the LIHTC, as required by New York, NY: Westchester County. human environment and therefore section 42 of the Internal Revenue Code, New Orleans, LA: St. James Parish. further environmental review under the as amended. The notice also details the Washington, DC-MD-VA-WV: Clarke, National Environmental Policy Act is technical methodology used in making Culpeper, King George, and Warren not necessary. such designations. Counties, Virginia; and Berkely and Jefferson Counties, West Virginia. Regulatory Flexibility Act Dated: October 18, 1996. Affected MSAs/PMSAs are assigned In accordance with 5 U.S.C. 605(b) Henry G. Cisneros, the indicator ‘‘(part)’’ in the list of (the Regulatory Flexibility Act), the Secretary.

1997 INTERNAL REVENUE CODE SECTION 42(d)(5)(C) METROPOLITAN DIFFICULT DEVELOPMENT AREAS

State Metropolitan area Metropolitan area Metropolitan area Metropolitan area

AZ ...... Tucson, AZ ...... Yuma, AZ. CA ...... Chico-Paradise, CA ...... Fresno, CA ...... Los Angeles-Long Beach, CA Merced, CA. Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices 55539

1997 INTERNAL REVENUE CODE SECTION 42(d)(5)(C) METROPOLITAN DIFFICULT DEVELOPMENT AREASÐContinued

State Metropolitan area Metropolitan area Metropolitan area Metropolitan area

Salinas, CA ...... San Francisco, CA ...... San Luis Obispo-Atascadero- Santa Barbara-Santa Maria- Paso Robles, CA. Lompoc, CA. Santa Cruz-Watsonville, CA .... Santa Rosa, CA ...... Ventura, CA. CT ...... New Haven-Meriden, CT ...... Stamford-Norwalk, CT. FL ...... Daytona Beach, FL ...... Fort Lauderdale, FL ...... Miami, FL ...... Orlando, FL. Punta Gorda, FL ...... Sarasota-Bradenton, FL. HI ...... Honolulu, HI. MA ...... Barnstable-Yarmouth, MA. ME ...... Portland, ME. NH ...... Portsmouth-Rochester, NH±ME. NJ Atlantic-Cape May, NJ ...... Jersey City, NJ ...... Monmouth-Ocean, NJ ...... Vineland-Millville-Bridgeton, NJ. NY ...... Nassau-Suffolk, NY ...... New York, NY (part) ...... Newburgh, NY-PA. OR ...... Eugene-Springfield, OR ...... Medford-Ashland, OR. PA ...... State College, PA. PR ...... Aguadilla, PR ...... Arecibo, PR ...... Caguas, PR ...... Mayaguez, PR. Ponce, PR ...... San Juan-Bayamon, PR. TX ...... Brownsville-Harlingen-San Be- Corpus Christi, TX ...... El Paso, TX ...... Killeen-Temple, TX. nito, TX. Laredo, TX. WA ...... Bellingham, WA ...... Richland-Kennewick-Pasco, Yakima, WA. WA.

1997 INTERNAL REVENUE CODE SECTION 42(d)(5)(C) NON-METROPOLITAN DIFFICULT DEVELOPMENT AREAS

Non-metropolitan county or Non-metropolitan county or Non-metropolitan county or Non-metropolitan county or State county equivalent county equivalent county equivalent county equivalent

PACIFIC ISLANDS. AK ...... BETHEL CENSUS AREA ...... DILLINGHAM CENSUS AREA FAIRBANKS NORTH STAR HAINES BOROUGH. BOROUGH. JUNEAU BOROUGH ...... KETCHIKAN GATEWAY BOR- KODIAK ISLAND BOROUGH LAKE AND PENINSULA BOR- OUGH. OUGH. NOME CENSUS AREA ...... NORTH SLOPE BOROUGH ... NORTHWEST ARCTIC BOR- OUGH. AL ...... MACON COUNTY. AR ...... BAXTER COUNTY ...... DREW COUNTY ...... MISSISSIPPI COUNTY ...... AZ ...... APACHE COUNTY ...... COCHISE COUNTY ...... GILA COUNTY ...... GRAHAM COUNTY. CA ...... ALPINE COUNTY ...... AMADOR COUNTY ...... CALAVERAS COUNTY ...... COLUSA COUNTY. DEL NORTE COUNTY ...... GLENN COUNTY ...... HUMBOLDT COUNTY ...... IMPERIAL COUNTY. INYO COUNTY ...... KINGS COUNTY ...... LAKE COUNTY ...... MARIPOSA COUNTY. MENDOCINO COUNTY ...... MODOC COUNTY ...... MONO COUNTY ...... NEVADA COUNTY. PLUMAS COUNTY ...... SAN BENITO COUNTY ...... SIERRA COUNTY ...... SISKIYOU COUNTY. TEHAMA COUNTY ...... TRINITY COUNTY ...... TUOLUMNE COUNTY. CO ...... GARFIELD COUNTY ...... LA PLATA COUNTY ...... PITKIN COUNTY ...... SAN MIGUEL COUNTY. CT ...... LITCHFIELD COUNTY (part) MIDDLESEX COUNTY (part) NEW LONDON COUNTY (part). FL ...... BAKER COUNTY ...... CALHOUN COUNTY ...... CITRUS COUNTY ...... COLUMBIA COUNTY. DESOTO COUNTY ...... DIXIE COUNTY ...... FRANKLIN COUNTY ...... GILCHRIST COUNTY. GLADES COUNTY ...... GULF COUNTY ...... HAMILTON COUNTY ...... HARDEE COUNTY. HENDRY COUNTY ...... HIGHLANDS COUNTY ...... HOLMES COUNTY ...... INDIAN RIVER COUNTY. JACKSON COUNTY ...... JEFFERSON COUNTY ...... LAFAYETTE COUNTY ...... LEVY COUNTY. LIBERTY COUNTY ...... MADISON COUNTY ...... MONROE COUNTY ...... OKEECHOBEE COUNTY. PUTNAM COUNTY ...... SUMTER COUNTY ...... SUWANNEE COUNTY ...... TAYLOR COUNTY. UNION COUNTY ...... WAKULLA COUNTY ...... WALTON COUNTY ...... WASHINGTON COUNTY. GA ...... BUTTS COUNTY ...... DAWSON COUNTY. HI ...... HAWAII COUNTY ...... KAUAI COUNTY ...... MAUI COUNTY. KS ...... RILEY COUNTY. KY ...... HARLAN COUNTY ...... KNOX COUNTY ...... LAUREL COUNTY ...... PERRY COUNTY. PIKE COUNTY ...... PULASKI COUNTY. LA ...... ALLEN PARISH ...... AVOYELLES PARISH ...... CALDWELL PARISH ...... CATAHOULA PARISH. CLAIBORNE PARISH ...... CONCORDIA PARISH ...... DE SOTO PARISH ...... EAST CARROLL PARISH. EVANGELINE PARISH ...... FRANKLIN PARISH ...... GRANT PARISH ...... JEFFERSON DAVIS PARISH. MADISON PARISH ...... MOREHOUSE PARISH ...... NATCHITOCHES PARISH ...... RED RIVER PARISH. RICHLAND PARISH ...... SABINE PARISH ...... ST. HELENA PARISH ...... ST. MARY PARISH. TANGIPAHOA PARISH ...... TENSAS PARISH ...... VERNON PARISH ...... WASHINGTON PARISH. WEST CARROLL PARISH ...... WEST FELICIANA PARISH. MA ...... BARNSTABLE COUNTY (part) DUKES COUNTY ...... FRANKLIN COUNTY (part) ..... HAMPDEN COUNTY (part). HAMPSHIRE COUNTY (part) NANTUCKET COUNTY ...... WORCESTER COUNTY (part) ME ...... ANDROSCOGGIN COUNTY AROOSTOOK COUNTY ...... CUMBERLAND COUNTY FRANKLIN COUNTY. (part). (part). 55540 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices

1997 INTERNAL REVENUE CODE SECTION 42(d)(5)(C) NON-METROPOLITAN DIFFICULT DEVELOPMENT AREASÐContinued

Non-metropolitan county or Non-metropolitan county or Non-metropolitan county or Non-metropolitan county or State county equivalent county equivalent county equivalent county equivalent

HANCOCK COUNTY ...... KNOX COUNTY ...... LINCOLN COUNTY ...... OXFORD COUNTY. PENOBSCOT COUNTY (part) PISCATAQUIS COUNTY ...... SAGADAHOC COUNTY ...... SOMERSET COUNTY. WALDO COUNTY (part) ...... WASHINGTON COUNTY ...... YORK COUNTY (part). MS ...... ADAMS COUNTY ...... AMITE COUNTY ...... ATTALA COUNTY ...... BENTON COUNTY. BOLIVAR COUNTY ...... CARROLL COUNTY ...... CHOCTAW COUNTY ...... CLAIBORNE COUNTY. COAHOMA COUNTY ...... COPIAH COUNTY ...... COVINGTON COUNTY ...... FRANKLIN COUNTY. GEORGE COUNTY ...... GREENE COUNTY ...... HOLMES COUNTY ...... HUMPHREYS COUNTY. ISSAQUENA COUNTY ...... JASPER COUNTY ...... JEFFERSON COUNTY ...... JEFFERSON DAVIS COUNTY. KEMPER COUNTY ...... LAFAYETTE COUNTY ...... LAWRENCE COUNTY ...... LEAKE COUNTY. LEFLORE COUNTY ...... LINCOLN COUNTY ...... MARION COUNTY ...... MARSHALL COUNTY. MONTGOMERY COUNTY ...... NOXUBEE COUNTY ...... PANOLA COUNTY ...... PERRY COUNTY. PIKE COUNTY ...... QUITMAN COUNTY ...... SCOTT COUNTY ...... SHARKEY COUNTY. SUNFLOWER COUNTY ...... TALLAHATCHIE COUNTY ...... TUNICA COUNTY ...... WALTHALL COUNTY. WASHINGTON COUNTY ...... WAYNE COUNTY ...... WILKINSON COUNTY ...... YAZOO COUNTY. NC ...... DARE COUNTY ...... WATAUGA COUNTY. NH ...... BELKNAP COUNTY ...... CARROLL COUNTY ...... CHESHIRE COUNTY ...... GRAFTON COUNTY. HILLSBOROUGH COUNTY MERRIMACK COUNTY (part) ROCKINGHAM COUNTY STRAFFORD COUNTY (part). (part). (part). NM ...... LINCOLN COUNTY ...... MCKINLEY COUNTY ...... QUAY COUNTY ...... SAN MIGUEL COUNTY. TAOS COUNTY. NY ...... CLINTON COUNTY ...... COLUMBIA COUNTY ...... ESSEX COUNTY ...... GREENE COUNTY. JEFFERSON COUNTY ...... SULLIVAN COUNTY ...... TOMPKINS COUNTY ...... ULSTER COUNTY. OR ...... BAKER COUNTY ...... CLATSOP COUNTY ...... COOS COUNTY ...... CROOK COUNTY. CURRY COUNTY ...... DESCHUTES COUNTY ...... DOUGLAS COUNTY ...... GRANT COUNTY. HARNEY COUNTY ...... HOOD RIVER COUNTY ...... JEFFERSON COUNTY ...... JOSEPHINE COUNTY. KLAMATH COUNTY ...... LAKE COUNTY ...... LINCOLN COUNTY ...... MALHEUR COUNTY. MORROW COUNTY ...... SHERMAN COUNTY ...... TILLAMOOK COUNTY ...... UMATILLA COUNTY. UNION COUNTY ...... WALLOWA COUNTY ...... WASCO COUNTY ...... WHEELER COUNTY. PA ...... MONROE COUNTY ...... NORTHUMBERLAND COUN- UNION COUNTY ...... WAYNE COUNTY. TY. PR ...... All. RI ...... NEWPORT COUNTY (part) ..... WASHINGTON COUNTY (part). SD ...... BUTTE COUNTY ...... LAWRENCE COUNTY ...... MEADE COUNTY. TX ...... ARANSAS COUNTY ...... CAMP COUNTY ...... HUDSPETH COUNTY ...... KIMBLE COUNTY. LLANO COUNTY ...... ROBERTSON COUNTY ...... TYLER COUNTY ...... VAL VERDE COUNTY. WALKER COUNTY. UT ...... DAGGETT COUNTY ...... WASHINGTON COUNTY. VA ...... CAROLINE COUNTY ...... WESTMORELAND COUNTY. VI ...... St. Croix ...... St. Johns/St. Thomas. VT ...... ADDISON COUNTY ...... BENNINGTON COUNTY ...... LAMOILLE COUNTY ...... ORANGE COUNTY. RUTLAND COUNTY ...... WASHINGTON COUNTY ...... WINDHAM COUNTY ...... WINDSOR COUNTY. WA ...... ADAMS COUNTY ...... ASOTIN COUNTY ...... CHELAN COUNTY ...... CLALLAM COUNTY. COLUMBIA COUNTY ...... FERRY COUNTY ...... GARFIELD COUNTY ...... GRANT COUNTY. GRAYS HARBOR COUNTY .... JEFFERSON COUNTY ...... KITTITAS COUNTY ...... KLICKITAT COUNTY. LEWIS COUNTY ...... LINCOLN COUNTY ...... MASON COUNTY ...... OKANOGAN COUNTY. PACIFIC COUNTY ...... PEND OREILLE COUNTY ...... SAN JUAN COUNTY ...... SKAGIT COUNTY. SKAMANIA COUNTY ...... STEVENS COUNTY ...... WAHKIAKUM COUNTY.

[FR Doc. 96–27501 Filed 10–24–96; 8:45 am] BILLING CODE 4210±32±P federal register October 25,1996 Friday Tests andPassingScores;Notice List ofApproved``Ability-to-Benefit'' Education Department of Part V 55541 55542 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices

DEPARTMENT OF EDUCATION passing scores for each approved test, Prealgebra/Numerical (21), Reading (60), and the administration of approved ATB and Writing (31). List of Approved ``Ability-to-Benefit'' tests. Publisher: The test publisher and the Tests and Passing Scores Under 34 CFR 668.145(c)(1), if the address, contact person, telephone, and AGENCY: Department of Education. Secretary approves an ATB test and the fax number of the test publisher are: passing score on the test, the Secretary American College Testing (ACT), ACTION: Notice. publishes the name of the test and the Placement Assessment Programs, 2201 SUMMARY: The Secretary provides the passing score in the Federal Register. North Dodge Street, P.O. Box 168, Iowa first list of ‘‘ability-to-benefit’’ tests and The Secretary established the passing City, Iowa 52243, Contact: John D. Roth, passing scores that the Secretary has score on each approved test as the score Telephone: (319) 337–1030, Fax: (319) approved under section 484(d) of the that represents one standard deviation 337–1790. Higher Education Act of 1965, as below the mean for students with high 4. Computerized Placement Tests amended (HEA), and the regulations school diplomas who took the test. (CPTs)/Accuplacer (Reading that the Secretary promulgated to Establishing the passing score in this Comprehension, Sentence Skills, and implement that section in 34 CFR Part way means theoretically that 84 percent Arithmetic) 668, Subpart J. Except as provided of the high school graduates who took herein and beginning with the 61st day the test passed the test. The Secretary Passing Scores: The approved passing after the publication of this notice in the established this score based upon a scores on this test are as follows: Federal Register, an institution shall recognition that the secondary school Reading Comprehension (52), Sentence use one of the approved tests included level basic skills and general learned Skills (60), and Arithmetic (36). in this notice to determine if a student abilities of high school graduates in the Publisher: The test publisher and the who does not have a high school United States vary widely. address, contact person, telephone, and diploma or its recognized equivalent is The Secretary is publishing this fax number of the test publisher are: The eligible to receive funds under any title notice to indicate that the Secretary has College Board, 45 Columbus Avenue, IV, HEA program. The title IV, HEA approved the following eight ATB tests New York, New York 10023–6992, programs include the Federal Pell Grant, and the following passing scores on Contact: Ms. Loretta M. Church, Federal Family Education Loan, those tests. Telephone: (212) 713–8000, Fax: (212) William D. Ford Federal Direct Loan, 713–8063. Federal Perkins Loan, Federal Work- 1. ASSET Program: Basic Skills Tests Study, Federal Supplemental (Reading, Writing, and Numerical)— 5. Descriptive Tests: Descriptive Tests Educational Opportunity Grant, and Forms B2 and C2 of Language Skills (DTLS) (Reading Comprehension, Sentence Structure State Student Incentive Grant Programs. Passing Scores: The approved passing and Conventions of Written English)— FOR FURTHER INFORMATION CONTACT: scores on this test are as follows: Forms M–K–3KDT and M–K–3LDT; and Lorraine Kennedy, U.S. Department of Reading (34), Writing (34), and Descriptive Tests of Mathematical Education, 600 Independence Avenue, Numerical (33). Skills (DTMS) (Arithmetic)—Forms M– S.W., Regional Office Building 3, Room Publisher: The test publisher and the K–3KDT and M–K–3LDT 3045, Washington, D.C. 20202–5451. address, contact person, telephone, and Telephone: (202) 708–7888. Individuals fax number of the test publisher are: Passing Scores: The approved passing who use a telecommunications device American College Testing (ACT), scores on this test are as follows: for the deaf (TDD) may call the Federal Placement Assessment Programs, 2201 Reading Comprehension (108), Sentence Information Relay Service (FIRS) at 1– North Dodge Street, P.O. Box 168, Iowa Structure (9), Conventions of Written 800–877–8339 between 8 a.m. and 8 City, Iowa 52243, Contact: John D. Roth, English (309), and Arithmetic (506). p.m., Eastern time, Monday through Telephone: (319) 337–1030, Fax: (319) Publisher: The test publisher and the Friday. 337–1790. address, contact person, telephone, and fax number of the test publisher are: The SUPPLEMENTARY INFORMATION: Under 2. Career Programs Assessment (CPAT) College Board, 45 Columbus Avenue, section 484(d) of the HEA, a student Basic Skills Subtests (Language Usage, New York, New York 10023–6992, who does not have a high school Reading and Numerical)—Forms A, B, Contact: Ms. Loretta M. Church, diploma or its recognized equivalent is and C eligible to receive funds under the title Telephone: (212) 713–8000, Fax: (212) IV, HEA programs only if that student Passing Scores: The approved passing 713–8063. scores on this test are as follows: takes an independently administered 6. Test of Adult Basic Education Language Usage (43), Reading (44), and examination and achieves a score on (TABE): (Reading, Mathematics Numerical (42). that test specified by the Secretary Computation, Applied Mathematics demonstrating that the student has the Publisher: The test publisher and the Language, and Spelling)—Forms 5 and ability to benefit from the education or address, contact person, telephone, and 6, Level A training being offered. Those students fax number of the test publisher are: are colloquially referred to as ‘‘ability- American College Testing (ACT), Passing Scores: The approved passing to-benefit’’ or ‘‘ATB’’ students, and the Placement Assessment Programs, 2201 scores on this test are as follows: tests are colloquially referred to as North Dodge Street, P.O. Box 168, Iowa Reading (768), Mathematics ‘‘ability-to-benefit’’ or ‘‘ATB’’ tests. City, Iowa 52243, Contact: John D. Roth, Computation (804), Mathematics The Secretary published final Telephone: (319) 337–1030, Fax: (319) Concepts and Applications (759), regulations in the Federal Register on 337–1790. Language (714), and Spelling (749). December 1, 1995, implementing Publisher: The test publisher and the 3. COMPASS Subtests: Prealgebra/ section 484(d) (60 FR 61830–61844). address, contact person, telephone, and Numerical Skills Placement, Reading These regulations in 34 CFR Part 668, fax number of the test publisher are: Placement, and Writing Placement Subpart J, §§ 668.151 to 668.156, CTB/McGraw-Hill, 11301 Jollyville became effective on July 1, 1996, and Passing Scores: The approved passing Road, Townhouse I–4, Austin, TX govern the approval of ATB tests, the scores on this test are as follows: 78759, Contact: Ms. Lorna Harrison, Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Notices 55543

Telephone: (512) 349–7578, Fax: (512) publisher requests that approval of a test institution may only use one of the eight 349–7580. be withdrawn. In either case, the tests approved under the new Secretary will publish a notice in the regulations to determine whether an 7. Test of Adult Basic Education Federal Register indicating this change. ATB student is eligible to receive title (TABE): (Reading, Mathematics IV, HEA program funds. However, as Computation, Applied Mathematics Use of approved tests indicated in § 668.155(b), if an Language, and Spelling)—Forms 7 and Until 60 days after the Secretary institution properly determined that a 8, Level A approves ATB tests and passing scores student had the ability to benefit under Passing Scores: The approved passing under the new regulations and a test approved as of June 30, 1996, it scores on this test are as follows: publishes the names of those tests and does not have to redetermine the Reading (559), Mathematics passing scores in the Federal Register, student’s eligibility under a newly Computation (558), Applied institutions are allowed to continue to approved test. Mathematics (559), Language (545), and make ATB eligibility determinations in In addition, approved tests must be Spelling (540). accordance with 34 CFR 668.155(a) administered in accordance with the Publisher: The test publisher and the under the tests and passing scores that provisions of 34 CFR 668.151 or address, contact person, telephone, and were approved as of June 30, 1996. 668.152. fax number of the test publisher are: Those tests are listed in the 1996–97 CTB/McGraw-Hill, 11301 Jollyville Federal Student Financial Aid Exception: Section 668.153 contains Road, Townhouse I–4, Austin, TX Handbook published by the Department. special provisions for testing students 78759, Contact: Ms. Lorna Harrison, Once the Secretary approves tests and whose native language is not English Telephone: (512) 349–7578, Fax: (512) passing scores under the new and who are not fluent in English and 349–7580. regulations and publishes the names of for students who have disabilities. None those tests and passing scores in the of the approved tests included in this 8. Wonderlic Basic Skills Test Federal Register, an institution may use notice has been approved for those (WBST)—Verbal Forms VS–1 & VS–2, one of those approved tests to make purposes. Accordingly, institutions may Quantitative Forms QS–1 & QS–2 ATB eligibility determinations for the continue to make ATB eligibility Passing scores: The approved passing title IV, HEA programs. As already determinations under the guidelines scores on this test are as follows: Verbal noted, the institution may also continue, prescribed in the ATB notice published (200) and Quantitative (210). for an additional 60 days, to use those in the Federal Register on December 30, Publisher: The test publisher and the tests approved as of June 30, 1996, for 1992, (57 FR 62440) and by using the address, contact person, telephone, and those determinations. tests approved as of June 30, 1996, for fax number of the test publisher are: Except as provided under Exception, those types of students. Moreover, the Wonderlic Personnel Test, Inc., 1509 N. on the 61st day after publication in the administration of those tests will not be Milwaukee Ave., Libertyville, IL 60048– Federal Register of the names of the governed by the provisions of 34 CFR 1380, Contact: Mr. Victor S. Artese, tests and passing scores that are Part 668, Subpart J. approved under the new regulations, all Telephone: (800) 323–3742, Fax: (847) Dated: October 21, 1996. 680–9492. institutions shall use such an approved test and passing score to make ATB David A. Longanecker, Duration of Approval eligibility determinations for title IV, Assistant Secretary for Postsecondary The Secretary approves each of these HEA program purposes. This means, Education. tests for five years, unless the Secretary except as provided under Exception, [FR Doc. 96–27392 Filed 10–24–96; 8:45 am] withdraws this approval or the that as of December 26, 1996, an BILLING CODE 4000±01±P i

Reader Aids Federal Register Vol. 61, No. 208 Friday, October 25, 1996

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING OCTOBER

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 the revision date of each title. Laws 3 CFR 90...... 51349 Public Laws Update Services (numbers, dates, etc.) 523±6641 91...... 51349 For additional information 523±5227 Proclamations: 92...... 51349 6922...... 51205 Presidential Documents 93...... 51349 6923...... 51347 94...... 51349 Executive orders and proclamations 523±5227 6924...... 51767 95...... 51349 The United States Government Manual 523±5227 6925...... 52233 96...... 51349 6926...... 52675 Other Services 97...... 51349 6927...... 52677 Electronic and on-line services (voice) 523±4534 98...... 51349 6928...... 53289 271 ...... 53595, 54270, 54282 Privacy Act Compilation 523±3187 6929...... 53291 272 ...... 53595, 54270, 54282, 523±5229 TDD for the hearing impaired 6930...... 53293 54290, 54298, 54303 6931...... 53295 273 ...... 54270, 54282, 54290, ELECTRONIC BULLETIN BOARD 6932...... 53297 54298, 54303 6933...... 53301 274...... 53595 Free Electronic Bulletin Board service for Public Law numbers, 6934...... 53591 275...... 54282 Federal Register finding aids, and list of documents on public 6935...... 53593 278...... 53595, 54303 inspection. 202±275±0920 6936...... 53825 279...... 54303 FAX-ON-DEMAND 6937...... 54069 301...... 52190, 53601 6938...... 54071 319...... 51208 You may access our Fax-On-Demand service. You only need a fax 6939...... 54073 354...... 53603 machine and there is no charge for the service except for long 6940...... 54075 502...... 51210 distance telephone charges the user may incur. The list of 6941...... 54077 920...... 51575 documents on public inspection and the daily Federal Register’s 6942...... 54719 927...... 52681 table of contents are available using this service. The document 6943...... 54925 929...... 51353 numbers are 7050-Public Inspection list and 7051-Table of 6944...... 54927 931...... 52681 Contents list. The public inspection list will be updated 6945...... 55077 932...... 55202 immediately for documents filed on an emergency basis. Executive Orders: 944...... 55202 NOTE: YOU WILL ONLY GET A LISTING OF DOCUMENTS ON July 6, 1910 (Revoked 945...... 51354 FILE AND NOT THE ACTUAL DOCUMENT. Documents on in part by PLO 950...... 53606 public inspection may be viewed and copied in our office located 7219) ...... 53752 958...... 52682 at 800 North Capitol Street, N.W., Suite 700. The Fax-On-Demand 12924 (See EO 981...... 53607 telephone number is: 301±713±6905 13020) ...... 54079 989...... 52684 12978 (See Notice of 993...... 51356 October 16, 1996)...... 54531 1137...... 55205 FEDERAL REGISTER PAGES AND DATES, OCTOBER 12981 (Amended by 1485...... 53303 51205±51348...... 1 EO 13020)...... 54079 3010...... 53608 51349±51574...... 2 13019...... 51763 Proposed Rules: 13020...... 54079 51575±51766...... 3 Ch. VI...... 52664 13021...... 54929 Ch. VII...... 52664 51767±52232...... 4 Administrative Orders: 201...... 51791 52233±52678...... 7 Presidential Determinations: 301...... 51376 52679±52870...... 8 No. 96±54 of 361...... 51791 52871±53034...... 9 September 28, 407...... 52717 53035±53302...... 10 1996 ...... 52679 997...... 51811 53303±53590...... 11 Notice of October 16, 998...... 51811 53591±53824...... 15 1996 ...... 54531 999...... 51811 53825±54076...... 16 1005...... 55229 5 CFR 54077±54330...... 17 1007...... 55229 54331±54532...... 18 Ch. XIV ...... 51207 1011...... 55229 54533±54726...... 21 Ch. LVIII...... 53827 1046...... 55229 1214...... 51378, 51391 54727±54926...... 22 550 ...... 51319, 52497, 53490 1620...... 55201 1466...... 53574 54927±55078...... 23 Proposed Rules: 55079±55200...... 24 8 CFR 531...... 55227 55201±55544...... 25 103...... 53303, 53830 7 CFR 235...... 53830 Ch. VI...... 52671 274...... 52235 Ch. VII...... 52671 286...... 53830 6...... 53002 292...... 53609 12...... 53490 299...... 53830 35...... 54081 Proposed Rules: 51...... 54082 312...... 51250 ii Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Reader Aids

9 CFR 71 ...... 51360, 51361, 51362, 230...... 54518 200...... 54267, 54492 92...... 52236 52281, 52282, 52283, 53050, 240...... 54518 236...... 54492 53841, 53842, 53843, 53844, 252...... 51319 94...... 51769 18 CFR 102...... 52871 53845, 53847, 53848, 53849, 570...... 51756, 54914 104...... 52871 53850, 53850, 53996, 54933, 284...... 55208 576...... 51546 585...... 52186 105...... 52871 55088, 55089, 55090, 55091 303...... 54849 813...... 54492 113...... 51769 73 ...... 53051, 53052, 53852 1315...... 55097 913...... 54492 116...... 52871 91...... 51782, 54020 19 CFR 950...... 54492 205...... 54727 97 ...... 53053, 53054, 53056 440...... 51395 101...... 51363 960...... 54492 304 ...... 53305, 55206, 55207 3500...... 51782 308 ...... 53305, 55206, 55207 Proposed Rules: 111...... 54551 310 ...... 53305, 55206, 55207 Ch. I...... 51845, 55230 Proposed Rules: Proposed Rules: 42...... 53341 320 ...... 53305, 55206, 55207 25...... 53680 10...... 51849 92...... 53341 327 ...... 53305, 55206, 55207 39 ...... 51250, 51255, 51618, 51619, 51621, 51624, 51845, 20 CFR 215...... 53341 381 ...... 53305, 55206, 55207 219...... 53341 51847, 52394, 53155, 53337, 368...... 54732 416 ...... 53305, 55206, 55207 221...... 53341 417 ...... 53305, 55206, 55207 53339, 53683, 54359, 54362, Proposed Rules: 54364, 54366, 54368, 54370, 236...... 53341 Proposed Rules: 355...... 54745 290...... 53341 91...... 52387 54372, 54582, 54955, 54958, 356...... 54745 54960, 54961, 54963, 54965, 511...... 53341 570...... 51556, 53341 10 CFR 54967, 54969, 55231, 55233 21 CFR 71 ...... 51319, 52397, 52398, 572...... 53276 2...... 53554 50...... 51498 52689, 52734, 53157, 53876, 574...... 53341 13...... 53554 56...... 51498 576...... 53341 53877, 53878, 53879, 53880, 73...... 51584 Proposed Rules: 53881, 53882, 54108, 54585, 582...... 53341 177...... 51364, 538520 583...... 53341 20...... 52388 54586, 54587 178...... 51587 585...... 53341 30...... 51835 91...... 54716 312...... 51498 882...... 53341 32...... 51835, 52388 93...... 54716 314...... 51498 885...... 53341 35...... 52388 121...... 54716 355...... 52285 886...... 53341 36...... 52388 135...... 54716 39...... 52388 520...... 52690, 53614 889...... 53341 40...... 51835 15 CFR 522 ...... 53320, 54332, 54333 890...... 53341 556...... 53320 906...... 53341 50...... 51835 Ch. VII...... 51395 558...... 51588, 53615 941...... 53341 52...... 51835 6...... 55092 601...... 51498 950...... 53341 60...... 51835 25...... 55092 808...... 52602 968...... 53341 61...... 51835 28...... 55092 70...... 51835 812...... 51498, 52602 970...... 53341 400...... 53505 983...... 53341 71...... 51835 734...... 54540 814...... 51498 820...... 52602 72...... 51835 740...... 54540 25 CFR 110...... 51835 1309...... 52287 742...... 54540 309...... 54551 150...... 51835 752...... 54540 1310...... 52287 708...... 55230 771A ...... 54540 1313...... 52287 26 CFR 774...... 54540 Proposed Rules: 11 CFR 1...... 53058 776A ...... 54540 25...... 54746 101...... 55122 301...... 53058 Proposed Rules: 799A ...... 54540 602...... 53058 104...... 52901 310...... 53685 902...... 51213 Proposed Rules: 904...... 54729 330...... 51625 12 CFR 352...... 53340 1 ...... 51256, 52902, 53161, 922...... 57577 53688 2...... 51777 946...... 53307 22 CFR 301...... 53161 213...... 52246 Proposed Rules: 245...... 52875 801...... 54109 41...... 53058 27 CFR 228 ...... 53615, 54849, 55361 264...... 53827 16...... 54935 31...... 54533 16 CFR 603...... 51593 Proposed Rules: 327...... 53834 1...... 54548 Proposed Rules: 55...... 53688 622...... 54728 24...... 51577 171...... 53158 252...... 55238 791...... 55207 260...... 53304 605...... 53185 270...... 54084 935...... 52686 305...... 54548 23 CFR 275...... 54084 1411...... 55079 306...... 54548 285...... 54084 Proposed Rules: 406...... 55095 1210...... 55213 290...... 55238 327...... 53867 460...... 54548 1313...... 55218 295...... 54084 620...... 53331 1020...... 52877 Proposed Rules: 630...... 53331 1500...... 54549 655...... 54111 28 CFR 935...... 52727 658...... 54588 2...... 54096 17 CFR 91...... 54333 13 CFR 24 CFR 4...... 54731 Proposed Rules: 121...... 54538 210...... 54509 1...... 52216 16...... 54112 228...... 54506, 54509 2...... 52216 14 CFR 229...... 54506 5...... 54492 29 CFR Ch. I ...... 53610 232...... 52283 8...... 52216 270...... 51596 13...... 53998 239...... 54509 42...... 51756 1952...... 55098 16...... 53998 240...... 52996 91...... 51756, 54914 4044...... 53623 39 ...... 51212, 51357, 52688, 249...... 54506, 54509 92...... 51756 Proposed Rules: 52876, 53035, 53038, 53040, 420...... 52498, 53996 103...... 52216 4...... 55239 53042, 53044, 53046, 53611, Proposed Rules: 104...... 52216 53613, 54331, 54538, 55080, 1...... 55235 146...... 52216 30 CFR 55082, 55084, 55085, 55087 31...... 55235 180...... 52216 7...... 55412 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Reader Aids iii

31...... 55412 427...... 54024 91...... 52088 2910...... 54120 32...... 55412 428...... 54024 132...... 54748 2920...... 54120 36...... 55412 429...... 54024 180...... 51372 3000...... 54120 70...... 55412 460...... 54024 271 ...... 52884, 54950, 55223 3100...... 54120 75...... 55412 461...... 54024 300 ...... 51373, 52886, 52887, 3120...... 54120 934...... 52691 464...... 54024 53328, 54098, 54343 3150...... 54120 Proposed Rules: 472...... 54024 721...... 52287 3160...... 54120 202...... 52735 477...... 54024 763...... 52703 3180...... 54120 206...... 52735 489...... 54024 Proposed Rules: 3200...... 52736, 54120 756...... 53884 490...... 54024 Ch. 1 ...... 55252 3210...... 52736 913...... 51631 491...... 54024 51...... 55252 3220...... 52736 917...... 55247 607...... 52399 52 ...... 51257, 51397, 51631, 3240...... 52736, 54120 935...... 54373, 54375 608...... 52399 51638, 51651, 51659, 51877, 3250...... 52736, 54120 609...... 52399 52401, 52864, 52902, 53163, 3260...... 52736, 54120 31 CFR 628...... 52399 53166, 53174, 53180, 53692, 3280...... 54120 353...... 53822 636...... 52399 53693, 53694, 54747, 54972, 3410...... 54120 356...... 54908 637...... 52399 54975, 54976, 55252, 55253 3420...... 54120 370...... 54908 645...... 52399 59...... 52735 3430...... 54120 500...... 54936 647...... 52399 60...... 52864, 54377 3450...... 54120 515...... 54936 649...... 52399 64...... 53886 3470...... 54120 535...... 54936 650...... 52399 70...... 53886 3480...... 54120 550...... 54936 655...... 52399 71...... 53886 3500...... 54120, 54384 560...... 54936 658...... 52399 80...... 53886 3510...... 54120, 54384 575...... 54936 660...... 52399 81...... 53694, 55259 3520...... 54120, 54384 585...... 54936 661...... 52399 132...... 54748 3530...... 54120, 54384 590...... 54936 669...... 52399 140...... 54014 3540...... 54120, 54384 595...... 54936 153...... 55259 3550...... 54120, 54384 35 CFR Ch. V...... 54334 159...... 55259 3560...... 54384 228...... 54112 Proposed Rules: Proposed Rules: 3570...... 54384 356...... 51851 133...... 53886 261...... 51397 3590...... 54120, 135...... 53886 271...... 51397 3710...... 54120 32 CFR 281...... 51875 3730...... 54120 36 CFR 300...... 55260, 55261 3740...... 51667, 54120 90...... 54097 302...... 51397 3800...... 54120 91...... 54097 13...... 54334 372 ...... 51322, 51330, 54381 3810...... 51667, 54120 174...... 54097 Proposed Rules: 799...... 54383 3820...... 51667 175...... 54097 61...... 51536 3830...... 54120 706...... 52879 223...... 54589 42 CFR 1190...... 51397 3870...... 54120 33 CFR 1191...... 51397 52...... 55102 4200...... 54120 52a...... 55106 4300...... 54120 100...... 52695, 53321 37 CFR 54a...... 55106 4700...... 54120 120...... 51597 57...... 51787 2...... 55223 5000...... 54120 128...... 51597 63a...... 55110 5470...... 54120 Proposed Rules: 401...... 54733 65a...... 55113 5510...... 54120 1...... 518355 Proposed Rules: 72...... 55190 8370...... 54120 100...... 53422, 53344 38 CFR 412...... 51217 9180...... 54120 165...... 53345, 53346 413...... 51217, 51611 9230...... 54120 166...... 55248 4...... 52695 489...... 51217 1003...... 52299 44 CFR 34 CFR 39 CFR 62...... 51217 43 CFR 614...... 51783 111...... 52702, 53321 64 ...... 51226, 51228, 54565, 617...... 51783 3001...... 55100 5470...... 53860 54567 619...... 51783 Proposed Rules: Proposed Rules: 65...... 54563 641...... 51783 111...... 53280 1600...... 54120 67...... 54573 Proposed Rules: 1820...... 54120 206...... 55122, 55123 40 CFR 222...... 52564 1840...... 54120 Proposed Rules: 350...... 53560 9 ...... 51365, 52287, 53854, 1850...... 54120 67...... 54593 351...... 53560 54030 1860...... 54120 206...... 55262 352...... 53560 50...... 52852 1880...... 54120 353...... 53560 51...... 52848 2090...... 54120 45 CFR 355...... 53560 52 ...... 51214, 51366, 51598, 2200...... 54120 6...... 54743 357...... 53560 51599, 51784, 52297, 52865, 2300...... 54120 8...... 54743 360...... 53560 52882, 53066, 53328, 53624, 2360...... 54977 46...... 51531 400...... 54024 53628, 53633, 53636, 53639, 2450...... 54120 79...... 52299 401...... 54024 54556, 54560, 54734, 54736, 2520...... 54120 1386...... 51751 402...... 54024 54737, 54941, 54943, 54946, 2530...... 53887 403...... 54024 54948 2540...... 54120 46 CFR 406...... 54024 60...... 52865 2560...... 54120 61...... 52497 410...... 54024 63...... 54342 2620...... 54120 108...... 51789 411...... 54024 70...... 51368, 51370 2640...... 54120 110...... 51789 412...... 54024 80...... 53854 2650...... 54120 111...... 51789 413...... 54024 81 ...... 53328, 53639, 54560 2720...... 54120 112...... 51789 415...... 54024 82...... 54030 2760...... 51666 113...... 51789 421...... 54024 86...... 51365, 54852 2800...... 54120 161...... 51789 425...... 54024 89...... 52088 2810...... 54120 190...... 52497 426...... 54024 90...... 52088 2880...... 54120 197...... 52497 iv Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Reader Aids

295...... 58861 422...... 53645 2...... 52998 1071...... 54104 501...... 51230 423...... 53645 3...... 52232 1104...... 52710 502...... 51230 424...... 53645 4...... 52232 1111...... 52710, 53996 506...... 52704 425...... 53645 6...... 52232, 52999 1112...... 52710 514...... 51230 426...... 53645 8...... 52232, 52844 1113...... 52710 583...... 51230 427...... 53645 9...... 52232 1114...... 52710 Proposed Rules: 428...... 53645 12...... 52232, 52999 1115...... 52710 552...... 55263 429...... 53645 13...... 52844 1121...... 52710 430...... 53645 14...... 52232, 52998 Proposed Rules: 47 CFR 431...... 53645 15...... 52998, 52999 171...... 55364 16...... 52232 1...... 52887 432...... 53645 172...... 55364 433...... 53645 19...... 52232 2...... 52301 173...... 55364 434...... 53645 22...... 52232 11...... 54952 175...... 55364 435...... 53645 23...... 52232 20...... 51233 176...... 55364 436...... 53645 25...... 52232 22...... 54098 178...... 55364 437...... 53645 27...... 52232 24...... 51233 438...... 53645 29...... 52232 361...... 54601 25...... 52301 439...... 53645 31...... 52232, 52998 362...... 54601 51...... 52706, 54099 440...... 53645 32...... 52232 363...... 54601 64...... 52307, 54344 441...... 53645 36...... 52232, 52998 364...... 54601 68 ...... 52307, 54344, 54953 442...... 53645 37...... 52232 369...... 54711 73 ...... 51789, 52899, 52900, 443...... 53645 38...... 52844 372...... 54712 53643, 53644, 54104, 55117, 444...... 53645 42...... 52232 383...... 52401 55118 445...... 53645 45...... 52232 391...... 52401 90...... 52301, 54098 446...... 53645 47...... 52232 393...... 54142 Proposed Rules: 447...... 53645 49...... 52232 571...... 51669, 54981 Ch. I ...... 53694 448...... 53645 51...... 52844 575...... 52769 1...... 54600 449...... 53645 52 ...... 52232, 52998, 52999 1313...... 54144 64...... 54979 450...... 53645 53...... 52232, 52998 73 ...... 53698, 54142, 54404, 451...... 53645 917...... 53185, 53699 50 CFR 54405, 54600, 55124. 55125 452...... 53645 950...... 53185, 53699 90...... 51877, 54980 453...... 53645 952...... 53185, 53699 SubCh. D ...... 53329 97...... 52767 501...... 51373 970...... 53185, 53699 17 ...... 53070, 53089, 53108, 702...... 51234 1535...... 55126 53124, 53130, 53137, 54044, 48 CFR 706...... 51234 1552...... 55126 54346 Ch. 2 ...... 54346 715...... 51234 1842...... 55264 216...... 51213 219...... 54346 716...... 51234 1852...... 55264 217...... 52370 401...... 53645 722 ...... 51234, 52497, 53996 285...... 53677, 55119 402...... 53645 726...... 51234 49 CFR 300...... 55225 403...... 53645 733...... 51234 Ch. III ...... 54706 622...... 52715 404...... 53645 737...... 51234 Ch. X...... 54706 648 ...... 52384, 52715, 53866, 405...... 53645 752...... 51234 106...... 51334 54105, 54578, 54579 406...... 53645 837...... 52709 107...... 51334 679 ...... 51374, 51789, 52385, 407...... 53645 852...... 52709 171...... 51235, 51334 52716, 53153, 53154, 53679, 408...... 53645 1212...... 53677, 54490 172 ...... 51236, 51238, 51334 54580, 54953, 55128 409...... 53645 1505...... 55118 173 ...... 51238, 51241, 51334, Proposed Rules: 410...... 53645 1514...... 55118 51495 17 ...... 51878, 52402, 53186 411...... 53645 1537...... 55118 174...... 51334 23...... 52403 412...... 53645 1548...... 55118 175...... 51334 217...... 52404 413...... 53645 1552...... 55118 176...... 51334 222...... 52404 414...... 53645 1815...... 52325 177...... 51334 227...... 53893 415...... 53645 1816...... 52325 178...... 51334 229...... 52769 416...... 53645 1852...... 52325 179...... 51334 424...... 51398 417...... 53645 1870...... 52325 180...... 51334 622...... 55127 418...... 53645 6101...... 52347 397...... 54744 648...... 52903, 54406 419...... 53645 6102...... 52347 593...... 51334 649...... 52903 420...... 53645 Proposed Rules: 1011...... 52710 660...... 51670 421...... 53645 1...... 52232, 52998 1070...... 54104 679...... 54145 Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Reader Aids v

REMINDERS comments due by 11-1- New York; comments due The items in this list were COMMENTS DUE NEXT 96; published 10-2-96 by 10-31-96; published editorially compiled as an aid WEEK COMMERCE DEPARTMENT 10-1-96 to Federal Register users. National Oceanic and Air quality implementation Inclusion or exclusion from plans; √A√approval and AGRICULTURE Atmospheric Administration this list has no legal promulgation; various DEPARTMENT Fishery conservation and significance. management: States; air quality planning Agricultural Marketing purposes; designation of Alaska; fisheries of Service areas: RULES GOING INTO Apples and pears shipped to Exclusive Economic Zone- - Washington; comments due EFFECT TODAY Pacific ports of Russia; Yellowfin sole; comments by 10-28-96; published 9- grade requirements 26-96 relaxation; comments due due by 10-31-96; FEDERAL RETIREMENT published 10-21-96 Hazardous waste: THRIFT INVESTMENT by 10-28-96; published 9- 26-96 Bering Sea and Aleutian Municipal solid waste landfill BOARD facilities and hazardous Kiwifruit research, promotion, Islands groundfish; Thrift savings plan: waste treatment, storage, and consumer information comments due by 10-28- and disposal facilities; Continuation of eligibility-- order; comments due by 11- 96; published 9-12-96 corporate owners and District of Columbia 1-96; published 10-2-96 Northeastern United States Financial Responsibility operators-- Popcorn promotion, research, fisheries and Management Financial assurance and consumer information Atlantic sea scallop; Assistance Authority; mechanisms; comments order; comments due by 10- comments due by 11-1- participation for certain due by 10-28-96; 30-96; published 9-30-96 96; published 9-20-96 employees; published published 9-27-96 AGRICULTURE COMMODITY FUTURES 10-25-96 FEDERAL DEPARTMENT TRADING COMMISSION NATIONAL CREDIT UNION Commodity pool operators and COMMUNICATIONS ADMINISTRATION Commodity Credit COMMISSION Corporation commodity trading advisors: Practice and procedure: Common carrier services: Conservation and Electronic media use; Board procedure rules; environmental programs: comments due by 10-28- Telecommunications Act of agenda items 96; published 8-27-96 1996; implementation-- determination; published Conservation Reserve DEFENSE DEPARTMENT Wireless services; 10-25-96 Programs (1986-1990 and 1991-2002); comments Federal Acquisition Regulation telecommunications TRANSPORTATION due by 10-28-96; (FAR): equipment, customer DEPARTMENT premise equipment, and published 8-27-96 Payment by electronic funds telecommunications Coast Guard transfer; comments due AGRICULTURE services; access by Ports and waterways safety: by 10-28-96; published 8- DEPARTMENT people with disabilities; Arrivals, departures, and 29-96 Federal Crop Insurance comments due by 10- certain dangerous Corporation EDUCATION DEPARTMENT 28-96; published 9-26- cargoes; advance notice; Crop insurance regulations: Postsecondary education: 96 published 9-25-96 Texas citrus tree crop; Student assistance general Radio stations; table of TRANSPORTATION comments due by 10-28- provisions-- assignments: DEPARTMENT 96; published 8-29-96 Records maintenance and Minnesota; comments due Acquisition regulations: AGRICULTURE retention; three year by 10-28-96; published 9- Federal regulatory reform; DEPARTMENT time period; comments 16-96 published 9-25-96 Farm Service Agency due by 10-28-96; Nevada; comments due by Correction; published 10- published 9-13-96 Agricultural conservation 10-28-96; published 9-16- 15-96 programs: ENERGY DEPARTMENT 96 TRANSPORTATION Conservation reserve Acquisition regulations: Oklahoma; comments due DEPARTMENT programs (1986-1990 and Non-statutorily imposed by 10-28-96; published 9- Federal Aviation 1991-2002); comments contractor and offeror 16-96 Administration due by 10-28-96; certification requirements; Television broadcasting: Airworthiness directives: published 8-27-96 elimination; comments due Cable television systems-- by 10-28-96; published 8- Bellanca; published 9-4-96 AGRICULTURE 29-96 Local market definition for Boeing; published 10-10-96 DEPARTMENT purposes of must-carry Jetstream; published 10-10- Rural Utilities Service ENVIRONMENTAL rules; comments due by PROTECTION AGENCY 96 Telecommunications standards 10-31-96; published 6- Lockheed; published 10-10- and specifications: Air quality implementation 10-96 plans; approval and 96 FEDERAL RESERVE Materials, equipment, and promulgation; various SYSTEM Pilatus Britten-Norman Ltd.; construction-- States: published 9-6-96 Bank holding companies and Telecommunications plant Colorado; comments due by change in bank control Robinson Helicopter Co.; acceptance tests and 10-28-96; published 8-28- (Regulation Y): published 10-10-96 measurements; 96 comments due by 10- Class E airspace; published 8- Kansas; comments due by Miscellaneous amendments; 28-96; published 8-28- 6-96 11-1-96; published 10-2- comments due by 10-31- 96 TRANSPORTATION 96 96; published 9-6-96 DEPARTMENT COMMERCE DEPARTMENT Maryland; comments due by GENERAL SERVICES National Highway Traffic Export Administration 10-28-96; published 9-27- ADMINISTRATION Safety Administration Bureau 96 Federal Acquisition Regulation Drunk driving prevention Export licensing: Montana; comments due by (FAR): programs; incentive grant Foreign policy-based 10-30-96; published 9-30- Payment by electronic funds criteria; published 10-25-96 controls; review of effects; 96 transfer; comments due vi Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Reader Aids

by 10-28-96; published 8- Navajo Nation, AZ and Massachusetts; comments Ammunition feeding devices 29-96 NM; comments due by due by 10-31-96; with capacity of more HEALTH AND HUMAN 10-30-96; published 9- published 4-30-96 than 10 rounds; SERVICES DEPARTMENT 30-96 Federal regulatory review: importation; cross reference; comments due Food and Drug LEGAL SERVICES Lifesaving equipment; by 10-28-96; published 7- Administration CORPORATION comments due by 10-31- 29-96 Food additives: Aliens; legal assistance 96; published 8-26-96 restrictions; comments due TREASURY DEPARTMENT Polymers-- Regattas and marine parades: by 10-28-96; published 8- Fiscal Service Methyl methacrylate/butyl Charleston Christmas 29-96 Parade of Boats, SC; Marketable book-entry acrylate-grafted Attorneys' fees; comments due polypropylene comments due by 10-28- Treasury bills, notes, and by 10-28-96; published 8- 96; published 9-26-96 bonds; sale and issue; copolymer; comments 29-96 due by 11-1-96; TRANSPORTATION comments due by 10-28-96; published 10-2-96 Fee-generating cases; DEPARTMENT published 9-27-96 comments due by 10-28-96; TREASURY DEPARTMENT HOUSING AND URBAN published 8-29-96 Federal Aviation Administration Privacy Act; implementation: DEVELOPMENT Fund recipients; application of Internal Revenue Service; DEPARTMENT Federal law; comments due Airworthiness directives: comments due by 10-28- Public and Indian housing: by 10-28-96; published 8- Bell; comments due by 10- 96; published 9-26-96 Optional earned income 29-96 29-96; published 8-30-96 exclusions; comments due Lobbying and certain other Burkhart Grob, Luft- und UNITED STATES by 10-29-96; published 8- activities; restrictions; Raumfahrt; comments due INFORMATION AGENCY 30-96 comments due by 10-28-96; by 11-1-96; published 8- Privacy Act; implementation; INTERIOR DEPARTMENT published 8-29-96 30-96 comments due by 10-30-96; published 9-30-96 Indian Affairs Bureau Non-LSC funds use; client HOAC Austria; comments Energy and minerals: identity and statement of due by 10-28-96; facts; comments due by 10- published 8-22-96 Quapaw Indian lands; lead 28-96; published 8-29-96 LIST OF PUBLIC LAWS and zinc mining operation McDonell Douglas; Priorities in use of resources; and leases; comments comments due by 10-28- This is a list of public bills comments due by 10-28-96; due by 10-28-96; 96; published 9-17-96 from the 104th Congress published 8-29-96 published 8-27-96 McDonnell Douglas; which have become Federal Prisoner representation; comments due by 10-30- INTERIOR DEPARTMENT laws. It may be used in comments due by 10-28-96; 96; published 10-4-96 conjunction with ``P L U S'' Land Management Bureau published 8-29-96 Robinson Helicopter Co.; (Public Laws Update Service) Minerals management: Solicitation restriction; comments due by 10-29- on 202±523±6641. The text of Oil and gas leasing-- comments due by 10-28-96; 96; published 8-30-96 laws is not published in the Stripper oil properties; published 8-29-96 Airworthiness standards: Federal Register but may be royalty rate reduction; Subgrants, fees, and dues: Special conditions-- ordered in individual pamphlet comments due by 10- Prohibition of use of funds form (referred to as ``slip Lockheed Martin 29-96; published 8-30- to pay membership dues laws'') from the Aerospace Corp. model 96 to private or nonprofit Superintendent of Documents, L382J airplane; organization; comments U.S. Government Printing INTERIOR DEPARTMENT comments due by 11-1- due by 10-28-96; Office, Washington, DC 20402 Fish and Wildlife Service 96; published 9-17-96 published 8-29-96 (phone, 202±512±2470). Endangered Species Class E airspace; comments Welfare reform; comments due H.R. 632/P.L. 104±308 Convention: due by 10-31-96; published by 10-28-96; published 8- To enhance fairness in River otters taken in 9-17-96 29-96 compensating owners of Missouri; export; NATIONAL AERONAUTICS TRANSPORTATION patents used by the United comments due by 10-28- AND SPACE DEPARTMENT States. (Oct. 19, 1996; 110 96; published 10-7-96 ADMINISTRATION National Highway Traffic Stat. 3814) INTERIOR DEPARTMENT Safety Administration Federal Acquisition Regulation H.R. 1281/P.L. 104±309 Minerals Management Agency information collection (FAR): To express the sense of the Service activities: Payment by electronic funds Congress that United States Royalty management: transfer; comments due Proposed collection; Government agencies in Gas produced from Federal by 10-28-96; published 8- comment request; possession of records about and Indian leases; gas 29-96 correction; comments due individuals who are alleged to royalties and deductions SECURITIES AND by 10-28-96; published have committed Nazi war for gas transportation EXCHANGE COMMISSION 10-8-96 crimes should make these calculations; comments Securities: Motor vehicle safety records public. (Oct. 19, 1996; standards: due by 10-30-96; Lost securityholders; transfer 110 Stat. 3815) published 9-17-96 agent requirements; Occupant crash protection-- H.R. 1874/P.L. 104±310 Royalty relief for deep water comments due by 10-28- Standard requirement that To modify the boundaries of producing leases and 96; published 8-28-96 test dummy remain in the Talladega National Forest, existing leases; comments Securities Exchange Act of vehicle during crash Alabama. (Oct. 19, 1996; 110 due by 10-30-96; 1934; section 10A test; comments due by Stat. 3817) published 9-17-96 10-29-96; published 8- reporting requirements; H.R. 3155/P.L. 104±311 INTERIOR DEPARTMENT comments due by 10-28- 30-96 To amend the Wild and 96; published 8-29-96 Surface Mining Reclamation TREASURY DEPARTMENT Scenic Rivers Act by and Enforcement Office TRANSPORTATION Alcohol, Tobacco and designating the Wekiva River, Indian lands program: DEPARTMENT Firearms Bureau Seminole Creek, and Rock Abandoned mine land Coast Guard Commerce in firearms and Springs Run in the State of reclamation plan-- Drawbridge operations: ammunition: Florida for study and potential Federal Register / Vol. 61, No. 208 / Friday, October 25, 1996 / Reader Aids vii addition to the National Wild the requirement for annual H.R. 4194/P.L. 104±320 S. 1194/P.L. 104±325 and Scenic Rivers System. resident review for nursing Administrative Dispute Marine Mineral Resources (Oct. 19, 1996; 110 Stat. facilities under the Medicaid Resolution Act of 1996 (Oct. Research Act of 1996 (Oct. 3818) program and to require 19, 1996; 110 Stat. 3870) 19, 1996; 110 Stat. 3994) resident reviews for mentally H.R. 3249/P.L. 104±312 H.J. Res. 193/P.L. 104±321 S. 1649/P.L. 104±326 To authorize appropriations for ill or mentally retarded Granting the consent of Irrigation Project Contract a mining institute or institutes residents when there is a Congress to the Emergency Extension Act of 1996 (Oct. to develop domestic significant change in physical Management Assistance 19, 1996; 110 Stat. 4000) technological capabilities for or mental condition. (Oct. 19, Compact. (Oct. 19, 1996; 110 the recovery of minerals from 1996; 110 Stat. 3824) S. 2183/P.L. 104±327 Stat. 3877) the Nation's seabed, and for H.R. 3864/P.L. 104±316 To make technical corrections other purposes. (Oct. 19, General Accounting Office Act H.J. Res. 194/P.L. 104±322 to the Personal Responsibility 1996; 110 Stat. 3819) of 1996 (Oct. 19, 1996; 110 Granting the consent of the and Work Opportunity H.R. 3378/P.L. 104±313 Stat. 3826) Congress to amendments Reconciliation Act of 1996. (Oct. 19, 1996; 110 Stat. Indian Health Care made by Maryland, Virginia, S. 1887/P.L. 104±317 4002) Improvement Technical and the District of Columbia to Federal Courts Improvement Corrections Act of 1996 (Oct. the Washington Metropolitan S. 2198/P.L. 104±328 Act of 1996 (Oct. 19, 1996; 19, 1996; 110 Stat. 3820) Area Transit Regulation To provide for the Advisory 110 Stat. 3847) Compact. (Oct. 19, 1996; 110 H.R. 3568/P.L. 104±314 Commission on H.R. 3910/P.L. 104±318 Stat. 3884) To designate 51.7 miles of the Intergovernmental Relations to Clarion River, located in Emergency Drought Relief Act S. 342/P.L. 104±323 continue in existence, and for Pennsylvania, as a component of 1996 (Oct. 19, 1996; 110 Cache La Poudre River other purposes. (Oct. 19, of the National Wild and Stat. 3862) Corridor Act (Oct. 19, 1996; 1996; 110 Stat. 4004) Scenic Rivers System. (Oct. H.R. 4036/P.L. 104±319 110 Stat. 3889) H.R. 1776/P.L. 104±329 19, 1996; 110 Stat. 3823) Human Rights, Refugee, and S. 1004/P.L. 104±324 United States Commemorative H.R. 3632/P.L. 104±315 Other Foreign Relations Coast Guard Authorization Act Coin Act of 1996 (Oct. 20, To amend title XIX of the Provisions Act of 1996 (Oct. of 1996 (Oct. 19, 1996; 110 1996; 110 Stat. 4005) Social Security Act to repeal 19, 1996; 110 Stat. 3864) Stat. 3901) Last List October 23, 1996